meta
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int64 1.71k
13.7k
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"text": " 1/12"
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"text": "\n\nIN THE HIGH COURT OF KARNATAKA, BENGALURU\n\n DATED THIS THE 2ND DAY OF AUGUST 2018"
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"text": "\n\n PRESENT\n\n THE HON'BLE DR.JUSTICE VINEET KOTHARI\n\n AND"
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"text": "\n\n THE HON'BLE MRS.JUSTICE S.SUJATHA"
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"text": "\n\n I.T.A. No.95/2017"
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"text": "\n\nBETWEEN:"
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"text": "1. THE PR. COMMISSIONER OF INCOME-TAX\n "
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"text": "5TH FLOOR, BMTC BUILDING,"
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"text": "\n 80 FEET ROAD, KORMANGALA"
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"text": "\n BENGALURU - 560 095"
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"text": "2. THE DEPUTY COMMISSIONER OF INCOME-TAX\n\n WARD-11(3), PRESENT ADDERS\n\n CIRCLE-2(1)(2), 2ND FLOOR\n\n "
}
},
{
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"text": "BMTC BUILDING, 80 FEET ROAD"
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"text": "\n\n KORMANGALA"
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"text": "\n\n BENGALURU-560 095"
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"text": " ... APPELLANTS"
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"text": "\n\n (BY SRI.ARAVIND K V, ADV.)"
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"id": "1ed6ef6790bd4bd29d3f1e82f2fe7f0b",
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"start": 700,
"text": "\n\nAND\n\nM/s ELECTRONICS FOR IMAGING INDIA PVT. LTD.\n\nKALYANI PLATINA, 4TH FLOOR\n\nBLOCK -1, NO.24, EPIP ZONE\n\nPHASE-II, WHITEFIELD\n\nBENGALURU - 560 066\n\nPAN:AAACG 6053E ... RESPONDENT\n\n(BY SRI.S.SHARATH, ADV. FOR SRI. CHYTHANYA K.K., ADV. )\n\n\n M/s Electronics for Imaging India Pvt. Ltd.\n\n 2/12\n\n THIS INCOME TAX APPEAL IS FIELD UNDER SEC.260-A\nOF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED\n17.06.2016, PASSED IN IT(TP)A NO. 1275/BANG/2012, FOR THE\nASSESSMENT YEAR 2007-2008 ANNEXURE -D, PRAYING TO: I.\nFORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED\nABOVE. II."
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"end": 1702,
"labels": [
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],
"start": 1397,
"text": "ALLOW THE APPEAL AND SET ASIDE THE ORDERS\nPASSED BY THE INCOME-TAX APPELLATE TRIBUNAL,\nBENGALURU IN IT(TP)A NO.1275/BANG/2012 DATED\n17.06.2016 ANNEXURE D AND CONFIRM THE ORDER OF THE\nAPPELLATE COMMISSIONER CONFIRMING THE ORDER PASSED\nBY THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE -\n2(1)(2), BENGALURU."
}
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{
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"start": 1702,
"text": "\n\n THIS APPEAL COMING ON FOR HEARING, THIS DAY,\nS. SUJATHA, J., DELIVERED THE FOLLOWING:\n\n J U D G M E N T"
}
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{
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"id": "b3759a14dc924019a0e6f22251b5cfa4",
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"end": 1892,
"labels": [
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"start": 1844,
"text": "\n Mr. K.V.Aravind, Adv. for Appellants Revenue."
}
},
{
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"id": "5ac7cc4e01304d8bb171d3dd68a8906c",
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"end": 1963,
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"start": 1892,
"text": "\nMr. S.Sharath, Adv. Mr. Chythanya K.K., Adv. for Respondent Assessee."
}
},
{
"from_name": null,
"id": "f896f3f8a9fe43c2964afb5f68a70416",
"to_name": null,
"type": null,
"value": {
"end": 2225,
"labels": [
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],
"start": 1963,
"text": "\n This Appeal is filed by the Revenue purportedly raising substantial questions of law arising from the Order of the Income Tax Appellate Tribunal, `B' Bench, Bangalore, in IT [TP] A No.1275/Bang/2012 dated 17.06.2016 relating to the Assessment Year 2007-08.\n 2."
}
},
{
"from_name": null,
"id": "9614597a1ec8405b8f48df4e32278e75",
"to_name": null,
"type": null,
"value": {
"end": 2885,
"labels": [
"ISSUE"
],
"start": 2226,
"text": "This Appeal has been admitted on 17.01.2018 to consider the following substantial questions of law: M/s Electronics for Imaging India Pvt. Ltd.\n 3/12 \"1.Whether on the facts and in the circumstances of the case, the Tribunal is right in law in directing the TPO to exclude M/s.Avani Cimcom Technologies Ltd, M/s. Celestial Labs Ltd, Accel Transmatic Ltd, KALS Infomration Systems Ltd, M/s Thridware Solutions Ltd, M/s.Helios & Matheson Information Technology Ltd, Megasoft Ltd, E-zest Solutions Ltd from list of comparables by following its earlier order which has not finality and without appreciating the materials brought on record by TPO and FAR Analysis?"
}
},
{
"from_name": null,
"id": "1c247b194fe34df5affc63c298807c2a",
"to_name": null,
"type": null,
"value": {
"end": 3377,
"labels": [
"ISSUE"
],
"start": 2885,
"text": "\n 2. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in directing the TPO to exclude comparable namely, Mindtree Ltd, IGate Global solutions Ltd, Infosys Technologies Ltd, Wipro Ltd, Flextronics Software Systems Ltd, Persistent Systems Ltd, Sasken Communication technologies Ltd and Tata Elxsi Ltd by following its earlier decision which has not reached finality even when the TPO had rightly chosen the same after applying all the required tests?\"\n 3."
}
},
{
"from_name": null,
"id": "40d3fa26b84a44d0879351efd0c93bb1",
"to_name": null,
"type": null,
"value": {
"end": 3585,
"labels": [
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],
"start": 3378,
"text": "The learned Tribunal, after discussing the rival contentions of both the Appellants-Revenue and M/s Electronics for Imaging India Pvt. Ltd.\n 4/12 Respondent-Assessee, has returned the findings as under: \"12."
}
},
{
"from_name": null,
"id": "bf7dfc26ba054f839dc094865254ee54",
"to_name": null,
"type": null,
"value": {
"end": 3649,
"labels": [
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],
"start": 3586,
"text": "We have given a careful consideration to the rival submissions."
}
},
{
"from_name": null,
"id": "b62addc2a76c40c6996f11020bd37e8e",
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"value": {
"end": 3892,
"labels": [
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],
"start": 3650,
"text": "At the outset, it was submitted by the parties before us that the very same 26 comparables had been chosen by the TPO for determining the ALP in the case of software services providing company viz., Trilogy E-Business Software India Pvt. Ltd."
}
},
{
"from_name": null,
"id": "c6fc637b2824424b942d5f2cfd9178aa",
"to_name": null,
"type": null,
"value": {
"end": 4098,
"labels": [
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],
"start": 3893,
"text": "It was also accepted by the parties that in the case of that company, this Tribunal in ITA No.1054/Bang/2011 by its order dated 23.11.2012 considered the comparability of the comparables chosen by the TPO."
}
},
{
"from_name": null,
"id": "897f1497657e4776a56bd0aa2a0e9b5a",
"to_name": null,
"type": null,
"value": {
"end": 4265,
"labels": [
"RLC"
],
"start": 4099,
"text": "It was agreed by the parties that the aforesaid decision, which incidentally is also for the A.Y. 2007-08, will apply to the case of the assessee in this appeal also."
}
},
{
"from_name": null,
"id": "201adbd76ff04605a65a75aa2d0c97d7",
"to_name": null,
"type": null,
"value": {
"end": 4596,
"labels": [
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],
"start": 4266,
"text": "It was also accepted by the parties that some of the comparables chosen by the TPO have also been considered by the Mumbai Bench of the Tribunal in the case of Telcordia Technologies India Pvt. Ltd., ITA No.7821/Mum/2011; and by the Bangalore Bench of the Tribunal in the case of 24/7 Customer Com Pvt. Ltd., ITA No.227/Bang/2010."
}
},
{
"from_name": null,
"id": "a49c0df3699446859f3e2a6976f3858e",
"to_name": null,
"type": null,
"value": {
"end": 4840,
"labels": [
"RLC"
],
"start": 4597,
"text": "In this background, we shall now examine the 26 comparables chosen by the TPO and also consider M/s Electronics for Imaging India Pvt. Ltd.\n 5/12 as to what will be the comparables that can be considered for the purpose of determining the ALP."
}
},
{
"from_name": null,
"id": "5f901e1e43c74bdfb061093583a1ff82",
"to_name": null,
"type": null,
"value": {
"end": 5090,
"labels": [
"RLC"
],
"start": 4840,
"text": "\nWe may also add that M/s. Helios and Matherson Ltd., was chosen as a comparable by the Assessee in his TP study but has now seeking to exclude the same from the list of comparables and in this regard has raised additional ground of appeal before us."
}
},
{
"from_name": null,
"id": "527abf8510194e85b02d6d0942af83d9",
"to_name": null,
"type": null,
"value": {
"end": 5421,
"labels": [
"RLC"
],
"start": 5091,
"text": "The learned counsel has placed reliance on the decision of the Special Bench ITAT in the case of Quark Systems Pvt. Ltd., [2010] 38 SOT 307 [Chd.] [SB] for the proposition that there cannot be estoppel in Transfer Pricing issues and an Assessee can take a stand that a company chosen by it as comparable is in fact not comparable."
}
},
{
"from_name": null,
"id": "b47f52e4c2d14945ad92607cac86a4bf",
"to_name": null,
"type": null,
"value": {
"end": 5539,
"labels": [
"RLC"
],
"start": 5422,
"text": "Keeping in mind the decision of the Special Bench referred to above, we admit the additional ground for adjudication."
}
},
{
"from_name": null,
"id": "be07eb8860fb47a8a2deb13b6cc1adee",
"to_name": null,
"type": null,
"value": {
"end": 5982,
"labels": [
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],
"start": 5539,
"text": "\n 13. As far as the 8 comparable at Sl.no.9, 11, 12, 13, 15, 17, 18 & 19 is concerned, it was the submission of the learned counsel for the Assessee that those companies may be rejected as comparable by applying the turnover filter of Rs.200 Crores in view of the decision of the Tribunal in assessee's own case for AY 2006-07 and also in the case of Trilogy E-Business Software India P. Ltd., [ITA No.1338/Bang/2010] for same assessment year."
}
},
{
"from_name": null,
"id": "ceaed8753d4a423babb6ddb79827a407",
"to_name": null,
"type": null,
"value": {
"end": 6119,
"labels": [
"RLC"
],
"start": 5983,
"text": "It is not in dispute that the turnover of these M/s Electronics for Imaging India Pvt. Ltd.\n 6/12 companies are more than Rs.200 crores."
}
},
{
"from_name": null,
"id": "440a0c05d74c429cbfb6ef7bc7730d45",
"to_name": null,
"type": null,
"value": {
"end": 6189,
"labels": [
"RLC"
],
"start": 6120,
"text": "The turnover of the assessee in the present case is Rs.147,02,41,787."
}
},
{
"from_name": null,
"id": "340a8b249b0041f0a29aa14dfe58a334",
"to_name": null,
"type": null,
"value": {
"end": 6475,
"labels": [
"RLC"
],
"start": 6190,
"text": "It has been held by this Tribunal in the case of Trilogy E-Business Software India Pvt.\nLtd., [supra] that companies with a turnover of more than Rs.200 crores cannot be taken as comparables while determining the ALP in the case of companies having turnover of less than Rs.200 crores."
}
},
{
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"id": "326e0a5b2cb745c1a7a2c114ee818b64",
"to_name": null,
"type": null,
"value": {
"end": 6551,
"labels": [
"RLC"
],
"start": 6476,
"text": "The following are the relevant observations of the Tribunal in this regard."
}
},
{
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"id": "6c5db212a7cd43e088798be385e1afc6",
"to_name": null,
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"value": {
"end": 6565,
"labels": [
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],
"start": 6551,
"text": "\n \"xxxxx\"\n 14."
}
},
{
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"id": "ec13cefcd94f42dc9df9d09c527d869f",
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"value": {
"end": 6865,
"labels": [
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],
"start": 6566,
"text": "Respectfully following the decision of the Tribunal referred to above, we hold that the 8 comparable companies chosen by the TPO given in the chart in the earlier paragraphs of this have to be excluded as comparables for the purpose of determining the ALP of the impugned transaction in this appeal."
}
},
{
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"id": "5bf859babc9c488d873085ca230e8ae5",
"to_name": null,
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"value": {
"end": 7371,
"labels": [
"ANALYSIS"
],
"start": 6867,
"text": "15. 2 Comparables at Sl.No.14, 22 of the chart given in the earlier paragraph of comparable chosen by the TPO viz., Accel Transmatic Ltd. and KALS Information Systems Ltd. (Seg.) have been held to be functionally dissimilar to that of a pure software service provider in the decision of the Tribunal in assessee's own case for AYb 2006-07 and also in M/s Electronics for Imaging India Pvt. Ltd.\n 7/12 the case of Triology E-Business Software India P.\nLtd (ITA No.1338/Bang/2010) for same assessment year."
}
},
{
"from_name": null,
"id": "e631b91a7741445fb0bbb4565bf089c4",
"to_name": null,
"type": null,
"value": {
"end": 7531,
"labels": [
"ANALYSIS"
],
"start": 7372,
"text": "The relevant observations of these two comparable companies in the case of Triology E- Business Software India Pvt. Ltd.(supra) are as follows: - xxxxxxxxx 16."
}
},
{
"from_name": null,
"id": "a27fb4ebd37d46f3968a7c095a61e8ee",
"to_name": null,
"type": null,
"value": {
"end": 7714,
"labels": [
"ANALYSIS"
],
"start": 7532,
"text": "In view of the aforesaid decision of the Tribunal, comparable at Sl. No.14 and 22 of the Chart given at Para-12 of this order is directed to be excluded from the list of comparables."
}
},
{
"from_name": null,
"id": "5bf37b43c8db4f5b9762280adb1f952a",
"to_name": null,
"type": null,
"value": {
"end": 7924,
"labels": [
"ANALYSIS"
],
"start": 7716,
"text": "17. As far as comparable at Sl.No.23 of the list of comparable companies chosen by the TPO listed in para-12 of this order viz., Lucid Software Ltd. from the list of comparables chosen by the TPO is concerned"
}
},
{
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"id": "f847ca24df7f4ce5815119b2fca33d27",
"to_name": null,
"type": null,
"value": {
"end": 8297,
"labels": [
"ANALYSIS"
],
"start": 7924,
"text": ", we find that the Mumbai Bench of the Tribunal in the case of Telcordia Technologies India Pvt. Ltd. (supra) while dealing with the case of software service provider like the assessee, considered the comparability of Lucid Software Ltd.\nwith similar software services provider and the Tribunal held as follows: - xxxxx M/s Electronics for Imaging India Pvt. Ltd.\n 8/12 18."
}
},
{
"from_name": null,
"id": "23f2c9e1bd3c41dd8dd18f0b1344345e",
"to_name": null,
"type": null,
"value": {
"end": 8649,
"labels": [
"ANALYSIS"
],
"start": 8298,
"text": "In view of the aforesaid decision of the Mumbai Bench of the Tribunal, which is also in relation to A.Y. 2007-08, we are of the view that the said company Sl. No.23 of the list of comparable listed by the TPO at para-12 of this order is to be excluded as a comparable while determining the ALP of the international transaction impugned in this appeal."
}
},
{
"from_name": null,
"id": "4a222ac1f35d48c3badd70735562f172",
"to_name": null,
"type": null,
"value": {
"end": 8756,
"labels": [
"ANALYSIS"
],
"start": 8651,
"text": "19. As far as comparables at Sl.Nos.16 & 21 viz., Avani Cimcon Technologies Ltd. And Celestial Labs Ltd.,"
}
},
{
"from_name": null,
"id": "e79b559ef1964b32987befe7aa3d07e4",
"to_name": null,
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"value": {
"end": 9016,
"labels": [
"ANALYSIS"
],
"start": 8757,
"text": "of the chart of comparable chosen by the TPO listed in para-12 of this order, this Tribunal in the case of Trilogy E-Business Software India Pvt. Ltd.\n(supra) has taken a view that these companies are not comparable to the software service provider companies."
}
},
{
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"id": "00eb265868f64ab0b94696b40d5263f7",
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"value": {
"end": 9109,
"labels": [
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],
"start": 9017,
"text": "The following are the relevant observations of the Tribunal in this regard:- xxxxxxxxxxx 20."
}
},
{
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"id": "20584fc7fc634f5da50453049bc14798",
"to_name": null,
"type": null,
"value": {
"end": 9406,
"labels": [
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],
"start": 9110,
"text": "In view of the aforesaid decision of the Tribunal, comparables at Sl. Nos. 16 and 21 of the list of comparables chosen by the TPO listed in the earlier paragraph of this order have to be excluded for the purpose of comparison while determining the ALP of the impugned transaction in this appeal.\""
}
},
{
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"value": {
"end": 9460,
"labels": [
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],
"start": 9406,
"text": "\n M/s Electronics for Imaging India Pvt. Ltd.\n 9/12 4."
}
},
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"end": 9834,
"labels": [
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],
"start": 9461,
"text": "The controversy involved herein is no more res integra in view of the decision of this Court in I.T.A.\nNos.536/2015 c/w 537/2015 dated 25.06.2018 (Prl.\nCommissioner of Income Tax & Anr. v- M/s Softbrands India Pvt. Ltd.,) wherein it has been observed that unless the finding of the Tribunal is found ex facie perverse, the Appeal u/s. 260-A of the Act, is not maintainable."
}
},
{
"from_name": null,
"id": "d7cec9754baf436383b052f49ea40ccb",
"to_name": null,
"type": null,
"value": {
"end": 10057,
"labels": [
"PRE_RELIED"
],
"start": 9835,
"text": "The relevant portion of the 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."
}
},
{
"from_name": null,
"id": "3fedfefdc0e04c29a5d77328e832a4ab",
"to_name": null,
"type": null,
"value": {
"end": 11032,
"labels": [
"PRE_RELIED"
],
"start": 10058,
"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 M/s Electronics for Imaging India Pvt. Ltd.\n 10/12 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 260-A of the Act, the Courts could have embarked upon such exercise of framing and answering such substantial question of law.\nOn 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."
}
},
{
"from_name": null,
"id": "9ecdeffa1ccc43578b6cc7b87616947a",
"to_name": null,
"type": null,
"value": {
"end": 11392,
"labels": [
"PRE_RELIED"
],
"start": 11033,
"text": "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."
}
},
{
"from_name": null,
"id": "3e2c04976baf4ba5a6ccc593329d109d",
"to_name": null,
"type": null,
"value": {
"end": 11448,
"labels": [
"PRE_RELIED"
],
"start": 11392,
"text": "\n M/s Electronics for Imaging India Pvt. Ltd.\n 11/12 57."
}
},
{
"from_name": null,
"id": "bd8a174a5aaa4e7d961893de31ea5641",
"to_name": null,
"type": null,
"value": {
"end": 11874,
"labels": [
"PRE_RELIED"
],
"start": 11449,
"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 such appeals before this Court."
}
},
{
"from_name": null,
"id": "5c4df8ba42284af8aee2031ca6eb5a47",
"to_name": null,
"type": null,
"value": {
"end": 12071,
"labels": [
"PRE_RELIED"
],
"start": 11875,
"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": "10f4b3a02c29428c8c4c1d3fe34ad952",
"to_name": null,
"type": null,
"value": {
"end": 12161,
"labels": [
"PRE_RELIED"
],
"start": 12071,
"text": "\n 58. The appeals filed by the Revenue are therefore dismissed with no order as to costs.\""
}
},
{
"from_name": null,
"id": "9c90b7b3f6d2421189639456812ae5c0",
"to_name": null,
"type": null,
"value": {
"end": 12365,
"labels": [
"RATIO"
],
"start": 12163,
"text": "5. In the circumstances, having heard the learned Counsel appearing for both the sides, We are of the considered opinion that no substantial question of law arises for consideration in the present case."
}
},
{
"from_name": null,
"id": "5fe16327ab9245c3ad1edfbad7a1bd6f",
"to_name": null,
"type": null,
"value": {
"end": 12417,
"labels": [
"NONE"
],
"start": 12365,
"text": "\n M/s Electronics for Imaging India Pvt. Ltd.\n 12/12"
}
},
{
"from_name": null,
"id": "23b4279e02d8444aac1d1ca33e74eedb",
"to_name": null,
"type": null,
"value": {
"end": 12522,
"labels": [
"RPC"
],
"start": 12418,
"text": "Hence, the Appeal filed by the Appellant-Revenue is liable to be dismissed and is accordingly dismissed."
}
},
{
"from_name": null,
"id": "b8dad8e547964064b013fccc399838d3",
"to_name": null,
"type": null,
"value": {
"end": 12532,
"labels": [
"RPC"
],
"start": 12522,
"text": "\nNo costs."
}
},
{
"from_name": null,
"id": "eeaec686c439462f874b62e5a91df2fd",
"to_name": null,
"type": null,
"value": {
"end": 12561,
"labels": [
"NONE"
],
"start": 12532,
"text": "\n Sd/- JUDGE Sd/- JUDGE ln.\n "
}
}
]
}
] | 4,188 | {
"text": " 1/12\n\nIN THE HIGH COURT OF KARNATAKA, BENGALURU\n\n DATED THIS THE 2ND DAY OF AUGUST 2018\n\n PRESENT\n\n THE HON'BLE DR.JUSTICE VINEET KOTHARI\n\n AND\n\n THE HON'BLE MRS.JUSTICE S.SUJATHA\n\n I.T.A. No.95/2017\n\nBETWEEN:\n\n1. THE PR. COMMISSIONER OF INCOME-TAX\n 5TH FLOOR, BMTC BUILDING,\n 80 FEET ROAD, KORMANGALA\n BENGALURU - 560 095\n\n2. THE DEPUTY COMMISSIONER OF INCOME-TAX\n\n WARD-11(3), PRESENT ADDERS\n\n CIRCLE-2(1)(2), 2ND FLOOR\n\n BMTC BUILDING, 80 FEET ROAD\n\n KORMANGALA\n\n BENGALURU-560 095 ... APPELLANTS\n\n (BY SRI.ARAVIND K V, ADV.)\n\nAND\n\nM/s ELECTRONICS FOR IMAGING INDIA PVT. LTD.\n\nKALYANI PLATINA, 4TH FLOOR\n\nBLOCK -1, NO.24, EPIP ZONE\n\nPHASE-II, WHITEFIELD\n\nBENGALURU - 560 066\n\nPAN:AAACG 6053E ... RESPONDENT\n\n(BY SRI.S.SHARATH, ADV. FOR SRI. CHYTHANYA K.K., ADV. )\n\n\n M/s Electronics for Imaging India Pvt. Ltd.\n\n 2/12\n\n THIS INCOME TAX APPEAL IS FIELD UNDER SEC.260-A\nOF INCOME TAX ACT 1961, ARISING OUT OF ORDER DATED\n17.06.2016, PASSED IN IT(TP)A NO. 1275/BANG/2012, FOR THE\nASSESSMENT YEAR 2007-2008 ANNEXURE -D, PRAYING TO: I.\nFORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED\nABOVE. II. ALLOW THE APPEAL AND SET ASIDE THE ORDERS\nPASSED BY THE INCOME-TAX APPELLATE TRIBUNAL,\nBENGALURU IN IT(TP)A NO.1275/BANG/2012 DATED\n17.06.2016 ANNEXURE D AND CONFIRM THE ORDER OF THE\nAPPELLATE COMMISSIONER CONFIRMING THE ORDER PASSED\nBY THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE -\n2(1)(2), BENGALURU.\n\n THIS APPEAL COMING ON FOR HEARING, THIS DAY,\nS. SUJATHA, J., DELIVERED THE FOLLOWING:\n\n J U D G M E N T\n Mr. K.V.Aravind, Adv. for Appellants Revenue.\nMr. S.Sharath, Adv. Mr. Chythanya K.K., Adv. for Respondent Assessee.\n This Appeal is filed by the Revenue purportedly raising substantial questions of law arising from the Order of the Income Tax Appellate Tribunal, `B' Bench, Bangalore, in IT [TP] A No.1275/Bang/2012 dated 17.06.2016 relating to the Assessment Year 2007-08.\n 2. This Appeal has been admitted on 17.01.2018 to consider the following substantial questions of law: M/s Electronics for Imaging India Pvt. Ltd.\n 3/12 \"1.Whether on the facts and in the circumstances of the case, the Tribunal is right in law in directing the TPO to exclude M/s.Avani Cimcom Technologies Ltd, M/s. Celestial Labs Ltd, Accel Transmatic Ltd, KALS Infomration Systems Ltd, M/s Thridware Solutions Ltd, M/s.Helios & Matheson Information Technology Ltd, Megasoft Ltd, E-zest Solutions Ltd from list of comparables by following its earlier order which has not finality and without appreciating the materials brought on record by TPO and FAR Analysis?\n 2. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in directing the TPO to exclude comparable namely, Mindtree Ltd, IGate Global solutions Ltd, Infosys Technologies Ltd, Wipro Ltd, Flextronics Software Systems Ltd, Persistent Systems Ltd, Sasken Communication technologies Ltd and Tata Elxsi Ltd by following its earlier decision which has not reached finality even when the TPO had rightly chosen the same after applying all the required tests?\"\n 3. The learned Tribunal, after discussing the rival contentions of both the Appellants-Revenue and M/s Electronics for Imaging India Pvt. Ltd.\n 4/12 Respondent-Assessee, has returned the findings as under: \"12. We have given a careful consideration to the rival submissions. At the outset, it was submitted by the parties before us that the very same 26 comparables had been chosen by the TPO for determining the ALP in the case of software services providing company viz., Trilogy E-Business Software India Pvt. Ltd. It was also accepted by the parties that in the case of that company, this Tribunal in ITA No.1054/Bang/2011 by its order dated 23.11.2012 considered the comparability of the comparables chosen by the TPO. It was agreed by the parties that the aforesaid decision, which incidentally is also for the A.Y. 2007-08, will apply to the case of the assessee in this appeal also. It was also accepted by the parties that some of the comparables chosen by the TPO have also been considered by the Mumbai Bench of the Tribunal in the case of Telcordia Technologies India Pvt. Ltd., ITA No.7821/Mum/2011; and by the Bangalore Bench of the Tribunal in the case of 24/7 Customer Com Pvt. Ltd., ITA No.227/Bang/2010. In this background, we shall now examine the 26 comparables chosen by the TPO and also consider M/s Electronics for Imaging India Pvt. Ltd.\n 5/12 as to what will be the comparables that can be considered for the purpose of determining the ALP.\nWe may also add that M/s. Helios and Matherson Ltd., was chosen as a comparable by the Assessee in his TP study but has now seeking to exclude the same from the list of comparables and in this regard has raised additional ground of appeal before us.\nThe learned counsel has placed reliance on the decision of the Special Bench ITAT in the case of Quark Systems Pvt. Ltd., [2010] 38 SOT 307 [Chd.] [SB] for the proposition that there cannot be estoppel in Transfer Pricing issues and an Assessee can take a stand that a company chosen by it as comparable is in fact not comparable. Keeping in mind the decision of the Special Bench referred to above, we admit the additional ground for adjudication.\n 13. As far as the 8 comparable at Sl.no.9, 11, 12, 13, 15, 17, 18 & 19 is concerned, it was the submission of the learned counsel for the Assessee that those companies may be rejected as comparable by applying the turnover filter of Rs.200 Crores in view of the decision of the Tribunal in assessee's own case for AY 2006-07 and also in the case of Trilogy E-Business Software India P. Ltd., [ITA No.1338/Bang/2010] for same assessment year. It is not in dispute that the turnover of these M/s Electronics for Imaging India Pvt. Ltd.\n 6/12 companies are more than Rs.200 crores. The turnover of the assessee in the present case is Rs.147,02,41,787. It has been held by this Tribunal in the case of Trilogy E-Business Software India Pvt.\nLtd., [supra] that companies with a turnover of more than Rs.200 crores cannot be taken as comparables while determining the ALP in the case of companies having turnover of less than Rs.200 crores. The following are the relevant observations of the Tribunal in this regard.\n \"xxxxx\"\n 14. Respectfully following the decision of the Tribunal referred to above, we hold that the 8 comparable companies chosen by the TPO given in the chart in the earlier paragraphs of this have to be excluded as comparables for the purpose of determining the ALP of the impugned transaction in this appeal.\n 15. 2 Comparables at Sl.No.14, 22 of the chart given in the earlier paragraph of comparable chosen by the TPO viz., Accel Transmatic Ltd. and KALS Information Systems Ltd. (Seg.) have been held to be functionally dissimilar to that of a pure software service provider in the decision of the Tribunal in assessee's own case for AYb 2006-07 and also in M/s Electronics for Imaging India Pvt. Ltd.\n 7/12 the case of Triology E-Business Software India P.\nLtd (ITA No.1338/Bang/2010) for same assessment year. The relevant observations of these two comparable companies in the case of Triology E- Business Software India Pvt. Ltd.(supra) are as follows: - xxxxxxxxx 16. In view of the aforesaid decision of the Tribunal, comparable at Sl. No.14 and 22 of the Chart given at Para-12 of this order is directed to be excluded from the list of comparables.\n 17. As far as comparable at Sl.No.23 of the list of comparable companies chosen by the TPO listed in para-12 of this order viz., Lucid Software Ltd. from the list of comparables chosen by the TPO is concerned, we find that the Mumbai Bench of the Tribunal in the case of Telcordia Technologies India Pvt. Ltd. (supra) while dealing with the case of software service provider like the assessee, considered the comparability of Lucid Software Ltd.\nwith similar software services provider and the Tribunal held as follows: - xxxxx M/s Electronics for Imaging India Pvt. Ltd.\n 8/12 18. In view of the aforesaid decision of the Mumbai Bench of the Tribunal, which is also in relation to A.Y. 2007-08, we are of the view that the said company Sl. No.23 of the list of comparable listed by the TPO at para-12 of this order is to be excluded as a comparable while determining the ALP of the international transaction impugned in this appeal.\n 19. As far as comparables at Sl.Nos.16 & 21 viz., Avani Cimcon Technologies Ltd. And Celestial Labs Ltd., of the chart of comparable chosen by the TPO listed in para-12 of this order, this Tribunal in the case of Trilogy E-Business Software India Pvt. Ltd.\n(supra) has taken a view that these companies are not comparable to the software service provider companies. The following are the relevant observations of the Tribunal in this regard:- xxxxxxxxxxx 20. In view of the aforesaid decision of the Tribunal, comparables at Sl. Nos. 16 and 21 of the list of comparables chosen by the TPO listed in the earlier paragraph of this order have to be excluded for the purpose of comparison while determining the ALP of the impugned transaction in this appeal.\"\n M/s Electronics for Imaging India Pvt. Ltd.\n 9/12 4. The controversy involved herein is no more res integra in view of the decision of this Court in I.T.A.\nNos.536/2015 c/w 537/2015 dated 25.06.2018 (Prl.\nCommissioner of Income Tax & Anr. v- M/s Softbrands India Pvt. Ltd.,) wherein it has been observed that unless the finding of the Tribunal is found ex facie perverse, the Appeal u/s. 260-A of the Act, is not maintainable. The relevant portion of the 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 M/s Electronics for Imaging India Pvt. Ltd.\n 10/12 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 260-A of the Act, the Courts could have embarked upon such exercise of framing and answering such substantial question of law.\nOn 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 M/s Electronics for Imaging India Pvt. Ltd.\n 11/12 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 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 5. In the circumstances, having heard the learned Counsel appearing for both the sides, We are of the considered opinion that no substantial question of law arises for consideration in the present case.\n M/s Electronics for Imaging India Pvt. Ltd.\n 12/12 Hence, the Appeal filed by the Appellant-Revenue is liable to be dismissed and is accordingly dismissed.\nNo costs.\n Sd/- JUDGE Sd/- JUDGE ln.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "2e00acea89dd49c3bb3113e8bb8a05eb",
"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": "ed2edffd7fb6447885c0af0eb04d1914",
"to_name": null,
"type": null,
"value": {
"end": 172,
"labels": [
"PREAMBLE"
],
"start": 77,
"text": "\nCRIMINAL APPELLATE JURISDICTION\n\nCRIMINAL APPEAL NO. 2182 OF 2010\n\nMOHINDER SINGH Versus"
}
},
{
"from_name": null,
"id": "e53c291c8b214cb4a9c2cd69eed9a33f",
"to_name": null,
"type": null,
"value": {
"end": 278,
"labels": [
"PREAMBLE"
],
"start": 173,
"text": " ...Appellant\nTHE STATE OF PUNJAB ...Respondent\n\n J U D G M E N T"
}
},
{
"from_name": null,
"id": "147976d18d5b4ebcbc58a2671630972a",
"to_name": null,
"type": null,
"value": {
"end": 296,
"labels": [
"NONE"
],
"start": 278,
"text": "\n R. BANUMATHI, J."
}
},
{
"from_name": null,
"id": "87be590c70194bb9a24ac666ad9ff061",
"to_name": null,
"type": null,
"value": {
"end": 702,
"labels": [
"RLC"
],
"start": 296,
"text": "\n This appeal arises out of the judgment dated 30.06.2010 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No.199-DBA of 2002 in and by which the High Court reversed the judgment of acquittal of the appellant/accused and convicted him under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced him to undergo ten years imprisonment."
}
},
{
"from_name": null,
"id": "3658d3a97c05485c893c900925f32e97",
"to_name": null,
"type": null,
"value": {
"end": 947,
"labels": [
"FAC"
],
"start": 702,
"text": "\n 2. Briefly stated case of the prosecution is that on 30.04.1998, Joginder Singh, SI, Police Station Sadar Ludhiana (PW-2) along with other police officials was checking the vehicles on the bridge of Gill Canal towards the side of village Gill."
}
},
{
"from_name": null,
"id": "3dfe515e1d06490bbf731e1d503e2f0c",
"to_name": null,
"type": null,
"value": {
"end": 1042,
"labels": [
"FAC"
],
"start": 948,
"text": "Meanwhile, at about 7.00-7.30 pm, appellant Mohinder Singh came on his scooter No.PB-10B-2413."
}
},
{
"from_name": null,
"id": "dd2d8c62a2ab452cbdb7cfde5fc9457e",
"to_name": null,
"type": null,
"value": {
"end": 1128,
"labels": [
"FAC"
],
"start": 1043,
"text": "A signal was given to stop the scooter and the appellant/accused stopped his scooter."
}
},
{
"from_name": null,
"id": "190834a33b2d4710a4a70ff3e2751adc",
"to_name": null,
"type": null,
"value": {
"end": 1206,
"labels": [
"FAC"
],
"start": 1129,
"text": "It was suspected that some contraband substance was being carried in the bag."
}
},
{
"from_name": null,
"id": "457340c330e74350a6554c39b9d9012f",
"to_name": null,
"type": null,
"value": {
"end": 1303,
"labels": [
"FAC"
],
"start": 1206,
"text": "\nAppellant/accused was informed of his right of search before a Gazetted Officer or a Magistrate."
}
},
{
"from_name": null,
"id": "81aa6cdb44ae402995b040e1d6949ded",
"to_name": null,
"type": null,
"value": {
"end": 1478,
"labels": [
"FAC"
],
"start": 1304,
"text": "Joginder Singh (PW-2) called Gurjit Singh, DSP (PW-4) and the bag carried by the appellant/accused was searched in his presence and the substance bag was found to be \"opium\"."
}
},
{
"from_name": null,
"id": "03626f8b4a6749f4a81ebd24a9799175",
"to_name": null,
"type": null,
"value": {
"end": 1531,
"labels": [
"FAC"
],
"start": 1479,
"text": "On weighment, it was found to be 7 kilos and 40 gms."
}
},
{
"from_name": null,
"id": "774251951de34bcfbfcfabd0c61766e2",
"to_name": null,
"type": null,
"value": {
"end": 1709,
"labels": [
"FAC"
],
"start": 1532,
"text": "Two samples from the recovered \"opium\", each weighing 20 gms were taken and sealed separately having monogram `JS' and `GS' and taken into possession vide recovery memo Ext.-PE."
}
},
{
"from_name": null,
"id": "f192d3fb9dac4a1d9e409c60901ea195",
"to_name": null,
"type": null,
"value": {
"end": 1790,
"labels": [
"FAC"
],
"start": 1710,
"text": "Case property along with two samples was deposited with Baldev Singh MHC (PW-5)."
}
},
{
"from_name": null,
"id": "bbe5cf58f5e0465c90e73ba02fe62a97",
"to_name": null,
"type": null,
"value": {
"end": 1981,
"labels": [
"FAC"
],
"start": 1791,
"text": "Next day i.e. on 01.05.1998, the case property as well as the sample parcels were produced before the Area Magistrate who is said to have initialled the case property and the sample parcels."
}
},
{
"from_name": null,
"id": "9e9e9864704d469794da3f5dd50a8904",
"to_name": null,
"type": null,
"value": {
"end": 2152,
"labels": [
"FAC"
],
"start": 1982,
"text": "The sample parcels were sent to Forensic Science Laboratory (FSL) and subjected to chemical analysis and the contents were found to be \"opium\" in FSL report vide Ext.-P1."
}
},
{
"from_name": null,
"id": "1e4eaa81ec994320987170a523306312",
"to_name": null,
"type": null,
"value": {
"end": 2266,
"labels": [
"FAC"
],
"start": 2153,
"text": "After completion of the investigation, charge sheet was filed against appellant under Section 18 of the NDPS Act."
}
},
{
"from_name": null,
"id": "928ec943de85477f935a6d528c6f2ef8",
"to_name": null,
"type": null,
"value": {
"end": 2473,
"labels": [
"FAC"
],
"start": 2266,
"text": "\n 3. To prove the guilt of the accused, the prosecution has examined Constable Hardev Singh (PW-1), SI Joginder Singh (PW-2), ASI Harbhajan Singh (PW-3), DSP Gurjit Singh (PW-4) and Baldev Singh, MHC (PW-5)."
}
},
{
"from_name": null,
"id": "da9299396dac4dfeb0eeff2e67bfe690",
"to_name": null,
"type": null,
"value": {
"end": 2642,
"labels": [
"FAC"
],
"start": 2474,
"text": "The appellant was examined under Section 313 Cr.P.C. to explain the incriminating evidence circumstance appearing in the prosecution evidence and he denied all of them."
}
},
{
"from_name": null,
"id": "3a4a86b8f52144b189da24dc38d30a0d",
"to_name": null,
"type": null,
"value": {
"end": 2772,
"labels": [
"RLC"
],
"start": 2642,
"text": "\n 4. The trial court acquitted the appellant inter alia on the ground that there was non-compliance of Section 50 of the NDPS Act."
}
},
{
"from_name": null,
"id": "47af06b2ddf4416bba6fdd2224a8bd0f",
"to_name": null,
"type": null,
"value": {
"end": 3146,
"labels": [
"RLC"
],
"start": 2773,
"text": "The trial court further held that no order of the Magistrate was proved to show that the case property was produced before the court, was brought in evidence to show that the seal of the sample sent to FSL tallied with the seal of the contraband, and it cannot thus be said that the evidence regarding such production of case property before the Magistrate was trustworthy."
}
},
{
"from_name": null,
"id": "3f3a54fc92544a748b75d4228b240e8b",
"to_name": null,
"type": null,
"value": {
"end": 3234,
"labels": [
"FAC"
],
"start": 3147,
"text": "Being aggrieved by the acquittal, the State has preferred appeal before the High Court."
}
},
{
"from_name": null,
"id": "ce0e9e45090c4ce2a3b727c0d1cf8812",
"to_name": null,
"type": null,
"value": {
"end": 3514,
"labels": [
"RLC"
],
"start": 3234,
"text": "\n 5. Placing reliance upon State of Punjab v. Baldev Singh (1998) 2 SCC 724, the High Court held that recovery of contraband from a bag/attache which the accused was carrying in his hands, would not amount to search of person and as such Section 50 of the NDPS Act will not apply."
}
},
{
"from_name": null,
"id": "1e01605024d74bb28caaa0ea39d7ed06",
"to_name": null,
"type": null,
"value": {
"end": 3933,
"labels": [
"RLC"
],
"start": 3515,
"text": "Based on the evidence of SI Joginder Singh (PW-2) and Harbhajan Singh (PW-3), the High Court held that the case property parcels of the samples and the samples having the seals of `JS' and `GS' were duly produced before the Magistrate and on those findings, the High Court reversed the order of acquittal and convicted the appellant under Section 18 of the NDPS Act and sentenced him to undergo ten years imprisonment."
}
},
{
"from_name": null,
"id": "febaeea3a8fd484cbd5a08a9c256080c",
"to_name": null,
"type": null,
"value": {
"end": 3999,
"labels": [
"FAC"
],
"start": 3933,
"text": "\nBeing aggrieved, the appellant/accused has preferred this appeal."
}
},
{
"from_name": null,
"id": "2f6c2cc4946146b49ddb6ef8d03cbdea",
"to_name": null,
"type": null,
"value": {
"end": 4238,
"labels": [
"ARG_PETITIONER"
],
"start": 3999,
"text": "\n 6. Mr. Harkesh Singh, learned counsel for the appellant inter-alia submitted that since the contraband alleged to have been seized from the accused was not produced before the trial court, conviction of the appellant cannot be sustained."
}
},
{
"from_name": null,
"id": "15c420b08e974eab80d1463584537f97",
"to_name": null,
"type": null,
"value": {
"end": 4740,
"labels": [
"ARG_PETITIONER"
],
"start": 4239,
"text": "Learned counsel for the appellant placed reliance upon Ashok alias Dangra Jaiswal v.\nState of Madhya Pradesh (2011) 5 SCC 123 to contend that where the narcotic drug or the psychotropic substance seized from the possession of the accused is not produced before the Magistrate and when there is no evidence to connect the forensic science report with the drug or the substance that was seized from the possession of the accused in such a case the conviction of the appellant/accused is not sustainable."
}
},
{
"from_name": null,
"id": "7954991aa0ab472fadde1a4563edb852",
"to_name": null,
"type": null,
"value": {
"end": 4986,
"labels": [
"ARG_RESPONDENT"
],
"start": 4740,
"text": "\n 7. Learned counsel for the State has submitted that from the oral evidence of SI Joginder Singh (PW-2) and ASI Harbhajan Singh (PW-3), the production of the contraband seized from the accused before the court has been proved by the prosecution."
}
},
{
"from_name": null,
"id": "2080fee21fbf4e659b8f1194af614d91",
"to_name": null,
"type": null,
"value": {
"end": 5144,
"labels": [
"ARG_RESPONDENT"
],
"start": 4987,
"text": "It was submitted that the evidence and materials on record amply proves the production of the contraband along with the sample packets before the Magistrate."
}
},
{
"from_name": null,
"id": "0a066a0829084d13b4ac03127ca183ad",
"to_name": null,
"type": null,
"value": {
"end": 5334,
"labels": [
"ARG_RESPONDENT"
],
"start": 5145,
"text": "It was submitted that the trial court was not right in acquitting the accused and the High court rightly set aside the acquittal and the impugned judgment does not warrant any interference."
}
},
{
"from_name": null,
"id": "2d8cea576a494aa59d11785e83341752",
"to_name": null,
"type": null,
"value": {
"end": 5448,
"labels": [
"NONE"
],
"start": 5334,
"text": "\n 8. We have considered the submissions and perused the impugned judgment, evidence and other materials on record."
}
},
{
"from_name": null,
"id": "001206e511194c55a0ac235e86976797",
"to_name": null,
"type": null,
"value": {
"end": 5550,
"labels": [
"NONE"
],
"start": 5449,
"text": "We have also taken pains to look into the original records that were called for from the trial court."
}
},
{
"from_name": null,
"id": "f68f9fe7085840348913cb91419cd7f8",
"to_name": null,
"type": null,
"value": {
"end": 5741,
"labels": [
"ANALYSIS"
],
"start": 5550,
"text": "\n 9. On behalf of the appellant, contention was raised as to the non-compliance of Section 50 of the NDPS Act to submit that the safeguards stipulated under Section 50 were not complied with."
}
},
{
"from_name": null,
"id": "1f76c97601a54b65b3850b468f74866f",
"to_name": null,
"type": null,
"value": {
"end": 5882,
"labels": [
"ANALYSIS"
],
"start": 5742,
"text": "In the present case, the appellant was carrying the contraband-about seven Kilos of \"opium\" in the bag which he was carrying in the scooter."
}
},
{
"from_name": null,
"id": "2f5b6e03328941359c56346f5c420cce",
"to_name": null,
"type": null,
"value": {
"end": 6038,
"labels": [
"ANALYSIS"
],
"start": 5883,
"text": "Carrying the contraband in the scooter/bag cannot be said to be `by the person' necessitating compliance of Section 50 of the NDPS Act for personal search."
}
},
{
"from_name": null,
"id": "fcdee9ee86694fe9b980b3c912d3f54f",
"to_name": null,
"type": null,
"value": {
"end": 6146,
"labels": [
"ANALYSIS"
],
"start": 6039,
"text": "Reference in this regard can be made to the decision in State of H.P. v. Pawan Kumar (2005) 4 SCC 350.\n 10."
}
},
{
"from_name": null,
"id": "39374e2036b44333b46c9d8b22f6c7f5",
"to_name": null,
"type": null,
"value": {
"end": 6520,
"labels": [
"ANALYSIS"
],
"start": 6147,
"text": "So far as the contention regarding production of the contraband seized from the accused, in his evidence, Harbhajan Singh (PW-3) stated that on 01.05.1998, he produced the sample parcels and the case property parcels with the seal and the sample seals before the Judicial Magistrate, Ludhiana and the Magistrate has recorded the seals tallied with the specimen impression.\n"
}
},
{
"from_name": null,
"id": "6422ab1c61074064b88c2708d4131264",
"to_name": null,
"type": null,
"value": {
"end": 6688,
"labels": [
"ANALYSIS"
],
"start": 6520,
"text": "Harbhajan Singh (PW-3) further stated that after return of the samples and the parcels from the court, the same were lodged by him to the Malkhana on 01.05.1998 itself."
}
},
{
"from_name": null,
"id": "68c72aa907144795928f89c9900f292c",
"to_name": null,
"type": null,
"value": {
"end": 6990,
"labels": [
"ANALYSIS"
],
"start": 6689,
"text": "Baldev Singh (PW-5) the then Malkhana in charge though orally stated about the deposit of the contraband in the Malkhana, but Baldev Singh (PW-5) has not produced Register No.19 maintained in the Malkhana to show the relevant entry in Register No.19 as to deposit of the case property in the Malkhana."
}
},
{
"from_name": null,
"id": "cc54e32619304e8891232449e2881b59",
"to_name": null,
"type": null,
"value": {
"end": 7217,
"labels": [
"ANALYSIS"
],
"start": 6991,
"text": "Oral evidence of Harbhajan Singh (PW-3) and Baldev Singh (PW-5) as to the deposit of the contraband seized from the accused with Malkhana is not corroborated by the documentary evidence namely the entry in Register No.19.\n 11."
}
},
{
"from_name": null,
"id": "5c2e378daa204df5b780601788929a94",
"to_name": null,
"type": null,
"value": {
"end": 7500,
"labels": [
"ANALYSIS"
],
"start": 7218,
"text": "After referring to the oral evidence of Joginder Singh (PW-2) and Harbhajan Singh (PW-3), the trial court in para (14) of its judgment has recorded the finding that no order of the Magistrate to prove the production of the contraband before the Magistrate was available on the file."
}
},
{
"from_name": null,
"id": "1035e22a680d48c09df19805f7cafdd3",
"to_name": null,
"type": null,
"value": {
"end": 7682,
"labels": [
"ANALYSIS"
],
"start": 7501,
"text": "After recording such observation, the trial court held that the oral evidence regarding production of the case property before the Magistrate was not trustworthy and not acceptable."
}
},
{
"from_name": null,
"id": "a887fdb67710497885e020e905f011e0",
"to_name": null,
"type": null,
"value": {
"end": 7945,
"labels": [
"ANALYSIS"
],
"start": 7683,
"text": "In the absence of the order of the Magistrate showing that the contraband seized from the accused was produced before the Magistrate, the oral evidence adduced that the contraband was produced before the Magistrate cannot form the basis to record the conviction."
}
},
{
"from_name": null,
"id": "57d21715a85141bdb0b5a1369ef9e8ce",
"to_name": null,
"type": null,
"value": {
"end": 8346,
"labels": [
"ANALYSIS"
],
"start": 7945,
"text": "\n 12. For proving the offence under the NDPS Act, it is necessary for the prosecution to establish that the quantity of the contraband goods allegedly seized from the possession of the accused and the best evidence would be the court records as to the production of the contraband before the Magistrate and deposit of the same before the Malkhana or the document showing destruction of the contraband."
}
},
{
"from_name": null,
"id": "2201193d2f134f0f8b8376ba7aa8a0bd",
"to_name": null,
"type": null,
"value": {
"end": 8643,
"labels": [
"PRE_RELIED"
],
"start": 8346,
"text": "\n 13. In Vijay Jain v. State of Madhya Pradesh (2013) 14 SCC 527, this Court reiterated the necessity of production of contraband substances seized from the accused before the trial court to establish that the contraband substances seized from the accused tallied with the samples sent to the FSL."
}
},
{
"from_name": null,
"id": "ef0e359136434b268e4cab2efcd469a1",
"to_name": null,
"type": null,
"value": {
"end": 8761,
"labels": [
"PRE_RELIED"
],
"start": 8644,
"text": "It was held that mere oral evidence to establish seizure of contraband substances from the accused is not sufficient."
}
},
{
"from_name": null,
"id": "d31bf060a8184645a02cdcf61056d32e",
"to_name": null,
"type": null,
"value": {
"end": 8789,
"labels": [
"PRE_RELIED"
],
"start": 8762,
"text": "It was held as under:- \"10."
}
},
{
"from_name": null,
"id": "3bf057be58d5481a96b0064b529d8259",
"to_name": null,
"type": null,
"value": {
"end": 9642,
"labels": [
"PRE_RELIED"
],
"start": 8790,
"text": "On the other hand, on a reading of this Court's judgment in Jitendra v. State of M.P. (2004) 10 SCC 562, we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile."
}
},
{
"from_name": null,
"id": "01eace03437045dfb7ae1e781fb33e61",
"to_name": null,
"type": null,
"value": {
"end": 10060,
"labels": [
"PRE_RELIED"
],
"start": 9643,
"text": "Again, in Ashok v. State of M.P. (2011) 5 SCC 123, this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its non- production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant.\""
}
},
{
"from_name": null,
"id": "2806c915d8ad40edbdfafb7ceb7c2059",
"to_name": null,
"type": null,
"value": {
"end": 10264,
"labels": [
"ANALYSIS"
],
"start": 10062,
"text": "14. The High Court appears to have gone by the oral evidence of Joginder Singh (PW-2) and Harbhajan Singh (PW-3) that the contraband allegedly seized from the accused was produced before the Magistrate."
}
},
{
"from_name": null,
"id": "14a7a15f822a44b2b05b98b8e82830af",
"to_name": null,
"type": null,
"value": {
"end": 10578,
"labels": [
"ANALYSIS"
],
"start": 10265,
"text": "When the trial court which is in possession of the case records recorded a finding that there is no order of the Magistrate showing the production of the contraband before the court and acquitted the accused on that basis, in our view, the High Court ought not to have interfered with the said order of acquittal."
}
},
{
"from_name": null,
"id": "35eb0ecad5704823ac14e095e971df7c",
"to_name": null,
"type": null,
"value": {
"end": 10736,
"labels": [
"ANALYSIS"
],
"start": 10580,
"text": "15. In an appeal against acquittal, the High Court will not interfere unless there are substantial and compelling reasons to reverse the order of acquittal."
}
},
{
"from_name": null,
"id": "5be93ef427614e03912b97032d289516",
"to_name": null,
"type": null,
"value": {
"end": 10962,
"labels": [
"ANALYSIS"
],
"start": 10737,
"text": "The mere fact that on reappreciation of evidence the appellate court is inclined to arrive at a conclusion which is at variance with the trial court, the same cannot be the reason for interference with the order of acquittal."
}
},
{
"from_name": null,
"id": "9b9a1e7e367e4e5b9557d256ddb744c6",
"to_name": null,
"type": null,
"value": {
"end": 11238,
"labels": [
"PRE_RELIED"
],
"start": 10963,
"text": "After referring to various judgments in Chandrappa and others v. State of Karnataka (2007) 4 SCC 415, this Court summarised the general principles regarding the powers of the appellate court while dealing with an appeal against the order of acquittal and held as under:- \"42."
}
},
{
"from_name": null,
"id": "6dbf224f4fd74f3e85a62a4fe8bb3f61",
"to_name": null,
"type": null,
"value": {
"end": 11564,
"labels": [
"PRE_RELIED"
],
"start": 11239,
"text": "From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded."
}
},
{
"from_name": null,
"id": "e3e2b752bff34340aa473cf87d645cc7",
"to_name": null,
"type": null,
"value": {
"end": 11794,
"labels": [
"PRE_RELIED"
],
"start": 11564,
"text": "\n (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law."
}
},
{
"from_name": null,
"id": "bb38a8178f2847708e76784acb939986",
"to_name": null,
"type": null,
"value": {
"end": 12076,
"labels": [
"PRE_RELIED"
],
"start": 11794,
"text": "\n (3) Various expressions, such as, \"substantial and compelling reasons\", \"good and sufficient grounds\", \"very strong circumstances\", \"distorted conclusions\", \"glaring mistakes\", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal."
}
},
{
"from_name": null,
"id": "1da4eb6e463e403d9ae43d83f2da99e8",
"to_name": null,
"type": null,
"value": {
"end": 12321,
"labels": [
"PRE_RELIED"
],
"start": 12077,
"text": "Such phraseologies are more in the nature of \"flourishes of language\" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion."
}
},
{
"from_name": null,
"id": "58a1b42dc51e4456a6c4f534a7885a08",
"to_name": null,
"type": null,
"value": {
"end": 12454,
"labels": [
"PRE_RELIED"
],
"start": 12321,
"text": "\n (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused."
}
},
{
"from_name": null,
"id": "a7dde6ed58904bbc912e452e092fc8ff",
"to_name": null,
"type": null,
"value": {
"end": 12677,
"labels": [
"PRE_RELIED"
],
"start": 12455,
"text": "Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law."
}
},
{
"from_name": null,
"id": "9667cc22c6ac43c3bbf0546c7bda3fd5",
"to_name": null,
"type": null,
"value": {
"end": 12833,
"labels": [
"PRE_RELIED"
],
"start": 12678,
"text": "Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court."
}
},
{
"from_name": null,
"id": "9b4af5fcf85f4312b9b2869ba7a1dd88",
"to_name": null,
"type": null,
"value": {
"end": 13015,
"labels": [
"PRE_RELIED"
],
"start": 12833,
"text": "\n (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.\""
}
},
{
"from_name": null,
"id": "74a2983ec6b6425c933f9aa1e646736d",
"to_name": null,
"type": null,
"value": {
"end": 13363,
"labels": [
"PRE_RELIED"
],
"start": 13015,
"text": "\n The same principles were reiterated in number of judgments viz.\n Jugendra Singh v. State of Uttar Pradesh (2012) 6 SCC 297, State of Uttar Pradesh v. Ram Sajivan and Others (2010) 1 SCC 529, Bhaskar Ramappa Madar and others v. State of Karnataka (2009) 11 SCC 690, Chandrappa and others v. State of Karnataka (2007) 4 SCC 415 and other judgments."
}
},
{
"from_name": null,
"id": "2ee508e1894540afab2b6d7d4dfa2812",
"to_name": null,
"type": null,
"value": {
"end": 13500,
"labels": [
"RATIO"
],
"start": 13363,
"text": "\n 16. Considering the case in hand, the findings of the trial court cannot be said to be `distorted conclusions' warranting interference."
}
},
{
"from_name": null,
"id": "ca4aac687e4b4676b19207a24730acac",
"to_name": null,
"type": null,
"value": {
"end": 13743,
"labels": [
"RATIO"
],
"start": 13500,
"text": "\n Based on the oral evidence of Joginder Singh (PW-2) and Harbhajan Singh (PW-3), the High Court ought not to have interfered with the order of acquittal and the conviction of the appellant under Section 18 of the NDPS Act cannot be sustained."
}
},
{
"from_name": null,
"id": "589607aa17354e9b927fcc8ed8d7df87",
"to_name": null,
"type": null,
"value": {
"end": 13962,
"labels": [
"RPC"
],
"start": 13743,
"text": "\n 17. In the result, the conviction of the appellant under Section 18 of the NDPS Act and the sentence of imprisonment imposed on him is set aside and this appeal is allowed and the appellant is acquitted of the charge."
}
},
{
"from_name": null,
"id": "6775ada88c02480fb802c4245bf680db",
"to_name": null,
"type": null,
"value": {
"end": 14061,
"labels": [
"NONE"
],
"start": 13964,
"text": "................................J.\n "
}
},
{
"from_name": null,
"id": "47787cc29673445d8db1516917a34139",
"to_name": null,
"type": null,
"value": {
"end": 14074,
"labels": [
"NONE"
],
"start": 14061,
"text": "[RANJAN GOGOI"
}
},
{
"from_name": null,
"id": "ca037ac94dd24f718a4cc59a077de718",
"to_name": null,
"type": null,
"value": {
"end": 14109,
"labels": [
"NONE"
],
"start": 14074,
"text": "] ...............................J."
}
},
{
"from_name": null,
"id": "3eacb11e0d7848f4b3dfde9fd6fa5f82",
"to_name": null,
"type": null,
"value": {
"end": 14146,
"labels": [
"NONE"
],
"start": 14132,
"text": "[R. BANUMATHI]"
}
},
{
"from_name": null,
"id": "074351e9e36f4c36841e26d1ec0e9854",
"to_name": null,
"type": null,
"value": {
"end": 14178,
"labels": [
"NONE"
],
"start": 14147,
"text": "..............................."
}
},
{
"from_name": null,
"id": "e8a967797e4143f497a8408237e95ee7",
"to_name": null,
"type": null,
"value": {
"end": 14205,
"labels": [
"NONE"
],
"start": 14178,
"text": "J.\n "
}
},
{
"from_name": null,
"id": "1701ec3b1cab43efadc2c1e26eba6ea6",
"to_name": null,
"type": null,
"value": {
"end": 14218,
"labels": [
"NONE"
],
"start": 14205,
"text": "[NAVIN SINHA]"
}
},
{
"from_name": null,
"id": "444b2f8ed26f478db6499e16b3259a74",
"to_name": null,
"type": null,
"value": {
"end": 14245,
"labels": [
"NONE"
],
"start": 14219,
"text": "New Delhi; August 14, 2018"
}
}
]
}
] | 4,229 | {
"text": " REPORTABLE\n\n IN THE SUPREME COURT OF INDIA\nCRIMINAL APPELLATE JURISDICTION\n\nCRIMINAL APPEAL NO. 2182 OF 2010\n\nMOHINDER SINGH Versus ...Appellant\nTHE STATE OF PUNJAB ...Respondent\n\n J U D G M E N T\n R. BANUMATHI, J.\n This appeal arises out of the judgment dated 30.06.2010 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No.199-DBA of 2002 in and by which the High Court reversed the judgment of acquittal of the appellant/accused and convicted him under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced him to undergo ten years imprisonment.\n 2. Briefly stated case of the prosecution is that on 30.04.1998, Joginder Singh, SI, Police Station Sadar Ludhiana (PW-2) along with other police officials was checking the vehicles on the bridge of Gill Canal towards the side of village Gill. Meanwhile, at about 7.00-7.30 pm, appellant Mohinder Singh came on his scooter No.PB-10B-2413. A signal was given to stop the scooter and the appellant/accused stopped his scooter. It was suspected that some contraband substance was being carried in the bag.\nAppellant/accused was informed of his right of search before a Gazetted Officer or a Magistrate. Joginder Singh (PW-2) called Gurjit Singh, DSP (PW-4) and the bag carried by the appellant/accused was searched in his presence and the substance bag was found to be \"opium\". On weighment, it was found to be 7 kilos and 40 gms. Two samples from the recovered \"opium\", each weighing 20 gms were taken and sealed separately having monogram `JS' and `GS' and taken into possession vide recovery memo Ext.-PE. Case property along with two samples was deposited with Baldev Singh MHC (PW-5). Next day i.e. on 01.05.1998, the case property as well as the sample parcels were produced before the Area Magistrate who is said to have initialled the case property and the sample parcels. The sample parcels were sent to Forensic Science Laboratory (FSL) and subjected to chemical analysis and the contents were found to be \"opium\" in FSL report vide Ext.-P1. After completion of the investigation, charge sheet was filed against appellant under Section 18 of the NDPS Act.\n 3. To prove the guilt of the accused, the prosecution has examined Constable Hardev Singh (PW-1), SI Joginder Singh (PW-2), ASI Harbhajan Singh (PW-3), DSP Gurjit Singh (PW-4) and Baldev Singh, MHC (PW-5). The appellant was examined under Section 313 Cr.P.C. to explain the incriminating evidence circumstance appearing in the prosecution evidence and he denied all of them.\n 4. The trial court acquitted the appellant inter alia on the ground that there was non-compliance of Section 50 of the NDPS Act. The trial court further held that no order of the Magistrate was proved to show that the case property was produced before the court, was brought in evidence to show that the seal of the sample sent to FSL tallied with the seal of the contraband, and it cannot thus be said that the evidence regarding such production of case property before the Magistrate was trustworthy. Being aggrieved by the acquittal, the State has preferred appeal before the High Court.\n 5. Placing reliance upon State of Punjab v. Baldev Singh (1998) 2 SCC 724, the High Court held that recovery of contraband from a bag/attache which the accused was carrying in his hands, would not amount to search of person and as such Section 50 of the NDPS Act will not apply. Based on the evidence of SI Joginder Singh (PW-2) and Harbhajan Singh (PW-3), the High Court held that the case property parcels of the samples and the samples having the seals of `JS' and `GS' were duly produced before the Magistrate and on those findings, the High Court reversed the order of acquittal and convicted the appellant under Section 18 of the NDPS Act and sentenced him to undergo ten years imprisonment.\nBeing aggrieved, the appellant/accused has preferred this appeal.\n 6. Mr. Harkesh Singh, learned counsel for the appellant inter-alia submitted that since the contraband alleged to have been seized from the accused was not produced before the trial court, conviction of the appellant cannot be sustained. Learned counsel for the appellant placed reliance upon Ashok alias Dangra Jaiswal v.\nState of Madhya Pradesh (2011) 5 SCC 123 to contend that where the narcotic drug or the psychotropic substance seized from the possession of the accused is not produced before the Magistrate and when there is no evidence to connect the forensic science report with the drug or the substance that was seized from the possession of the accused in such a case the conviction of the appellant/accused is not sustainable.\n 7. Learned counsel for the State has submitted that from the oral evidence of SI Joginder Singh (PW-2) and ASI Harbhajan Singh (PW-3), the production of the contraband seized from the accused before the court has been proved by the prosecution. It was submitted that the evidence and materials on record amply proves the production of the contraband along with the sample packets before the Magistrate. It was submitted that the trial court was not right in acquitting the accused and the High court rightly set aside the acquittal and the impugned judgment does not warrant any interference.\n 8. We have considered the submissions and perused the impugned judgment, evidence and other materials on record. We have also taken pains to look into the original records that were called for from the trial court.\n 9. On behalf of the appellant, contention was raised as to the non-compliance of Section 50 of the NDPS Act to submit that the safeguards stipulated under Section 50 were not complied with. In the present case, the appellant was carrying the contraband-about seven Kilos of \"opium\" in the bag which he was carrying in the scooter. Carrying the contraband in the scooter/bag cannot be said to be `by the person' necessitating compliance of Section 50 of the NDPS Act for personal search. Reference in this regard can be made to the decision in State of H.P. v. Pawan Kumar (2005) 4 SCC 350.\n 10. So far as the contention regarding production of the contraband seized from the accused, in his evidence, Harbhajan Singh (PW-3) stated that on 01.05.1998, he produced the sample parcels and the case property parcels with the seal and the sample seals before the Judicial Magistrate, Ludhiana and the Magistrate has recorded the seals tallied with the specimen impression.\nHarbhajan Singh (PW-3) further stated that after return of the samples and the parcels from the court, the same were lodged by him to the Malkhana on 01.05.1998 itself. Baldev Singh (PW-5) the then Malkhana in charge though orally stated about the deposit of the contraband in the Malkhana, but Baldev Singh (PW-5) has not produced Register No.19 maintained in the Malkhana to show the relevant entry in Register No.19 as to deposit of the case property in the Malkhana. Oral evidence of Harbhajan Singh (PW-3) and Baldev Singh (PW-5) as to the deposit of the contraband seized from the accused with Malkhana is not corroborated by the documentary evidence namely the entry in Register No.19.\n 11. After referring to the oral evidence of Joginder Singh (PW-2) and Harbhajan Singh (PW-3), the trial court in para (14) of its judgment has recorded the finding that no order of the Magistrate to prove the production of the contraband before the Magistrate was available on the file. After recording such observation, the trial court held that the oral evidence regarding production of the case property before the Magistrate was not trustworthy and not acceptable. In the absence of the order of the Magistrate showing that the contraband seized from the accused was produced before the Magistrate, the oral evidence adduced that the contraband was produced before the Magistrate cannot form the basis to record the conviction.\n 12. For proving the offence under the NDPS Act, it is necessary for the prosecution to establish that the quantity of the contraband goods allegedly seized from the possession of the accused and the best evidence would be the court records as to the production of the contraband before the Magistrate and deposit of the same before the Malkhana or the document showing destruction of the contraband.\n 13. In Vijay Jain v. State of Madhya Pradesh (2013) 14 SCC 527, this Court reiterated the necessity of production of contraband substances seized from the accused before the trial court to establish that the contraband substances seized from the accused tallied with the samples sent to the FSL. It was held that mere oral evidence to establish seizure of contraband substances from the accused is not sufficient. It was held as under:- \"10. On the other hand, on a reading of this Court's judgment in Jitendra v. State of M.P. (2004) 10 SCC 562, we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok v. State of M.P. (2011) 5 SCC 123, this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its non- production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant.\"\n 14. The High Court appears to have gone by the oral evidence of Joginder Singh (PW-2) and Harbhajan Singh (PW-3) that the contraband allegedly seized from the accused was produced before the Magistrate. When the trial court which is in possession of the case records recorded a finding that there is no order of the Magistrate showing the production of the contraband before the court and acquitted the accused on that basis, in our view, the High Court ought not to have interfered with the said order of acquittal.\n 15. In an appeal against acquittal, the High Court will not interfere unless there are substantial and compelling reasons to reverse the order of acquittal. The mere fact that on reappreciation of evidence the appellate court is inclined to arrive at a conclusion which is at variance with the trial court, the same cannot be the reason for interference with the order of acquittal. After referring to various judgments in Chandrappa and others v. State of Karnataka (2007) 4 SCC 415, this Court summarised the general principles regarding the powers of the appellate court while dealing with an appeal against the order of acquittal and held as under:- \"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.\n (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.\n (3) Various expressions, such as, \"substantial and compelling reasons\", \"good and sufficient grounds\", \"very strong circumstances\", \"distorted conclusions\", \"glaring mistakes\", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of \"flourishes of language\" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.\n (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.\n (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.\"\n The same principles were reiterated in number of judgments viz.\n Jugendra Singh v. State of Uttar Pradesh (2012) 6 SCC 297, State of Uttar Pradesh v. Ram Sajivan and Others (2010) 1 SCC 529, Bhaskar Ramappa Madar and others v. State of Karnataka (2009) 11 SCC 690, Chandrappa and others v. State of Karnataka (2007) 4 SCC 415 and other judgments.\n 16. Considering the case in hand, the findings of the trial court cannot be said to be `distorted conclusions' warranting interference.\n Based on the oral evidence of Joginder Singh (PW-2) and Harbhajan Singh (PW-3), the High Court ought not to have interfered with the order of acquittal and the conviction of the appellant under Section 18 of the NDPS Act cannot be sustained.\n 17. In the result, the conviction of the appellant under Section 18 of the NDPS Act and the sentence of imprisonment imposed on him is set aside and this appeal is allowed and the appellant is acquitted of the charge.\n ................................J.\n [RANJAN GOGOI] ...............................J.\n [R. BANUMATHI] ...............................J.\n [NAVIN SINHA] New Delhi; August 14, 2018 "
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"text": "PETITIONER:\nRATILAL BHANJI MITHANI\n\n Vs."
}
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"text": "\n\nRESPONDENT:\nASSTT. COLLECTOR OF CUSTOMS, BOMBAY & ANR.\n\nDATE OF JUDGMENT:\n04/05/1967"
}
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"start": 128,
"text": "\n\nBENCH:\nBACHAWAT, R.S.\nBENCH:\nBACHAWAT, R.S.\nWANCHOO, K.N. (CJ)\nSHELAT, J.M.\nBHARGAVA, VISHISHTHA\nMITTER, G.K.\n\nCITATION:\n\n1967 AIR 1639 1967 SCR (3) 926\n (21)\nCITATOR INFO :\n\nR 1982 SC 710\n\nACT:\nConstitution of India, Arts. 21 and 225-High Court\ncancelling bail in exercise of inherent powers-Whether such\npowers violative of Art. 21-Or whether 'law' within the\nmeaning of Art. 21.\n\nHEADNOTE:\nThe appellant along with others was being tried for an\noffence under s. 120B of the Indian Penal Code read with s.\n167 (81) of the Sea Customs Act, 1878, and s. 5 of the\nImports and Exports Control Act, 1947."
}
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{
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"id": "fb3d988a23984294bc8311043f7e501f",
"to_name": "text",
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"end": 1110,
"labels": [
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],
"start": 776,
"text": "Although he was at\nfirst released on bail by the Presidency Magistrate, the\nHigh Court, by an order dated March 6, 1967 in the exercise\nof its inherent powers cancelled the previous bail orders,\nas it found that the appellant was interfering and tampering\nwith certain foreigners whom the prosecution intended to\nexamine as witnesses."
}
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{
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"id": "527b1632691c43f0bef1bd298fd1c918",
"to_name": "text",
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"end": 1346,
"labels": [
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],
"start": 1111,
"text": "The High Court, however, reserved\nliberty to the appellant to move the court on or after June\n26, 1967 far a fresh order of bail as it was contemplated\nthat within the time so fixed, the prosecution would examine\nthe foreign witnesses."
}
},
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"id": "c07862ffcfca481aa7071684b73dcbf6",
"to_name": "text",
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"end": 1825,
"labels": [
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"start": 1346,
"text": "\nIn the appeal to this Court, the appellant challenged the\norder of the High Court on the ground that the inherent\npowers of the High Court were not conferred by any\nlegislation or statute, and the deprivation of the personal\nliberty of the appellant by an order of the High Court in\nthe exercise of its inherent powers was violative of Art, '-\nII of the Constitution\nHELD : The High Court 'has the inherent power to cancel bail\ngranted to a person accused of a bailable offence."
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"end": 2006,
"labels": [
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],
"start": 1826,
"text": "This\njurisdiction should be invoked in exceptional cases only\nwhen the High Court is satisfied that the ends of justice\nwill be defeated unless the accused is committed to custody."
}
},
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"id": "498c882fd79442639bb65cebb292d069",
"to_name": "text",
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"value": {
"end": 2192,
"labels": [
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],
"start": 2007,
"text": "[928A-B]\nThe order of the High Court cancelling the bail and\ndepriving the appellant of his personal liberty was\naccording to procedure established by law was not violative\n\nof Art. 21."
}
},
{
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"id": "a5b7e0303b394652b9642380b65cf55f",
"to_name": "text",
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"end": 2401,
"labels": [
"PREAMBLE"
],
"start": 2193,
"text": "[931C]\nThe existing powers and jurisdiction of the High Court,\nincluding its inherent powers, had been confirmed and\ncontinued by s. 223 of the Government of India Act, 1935,\nand Art. 225 of the Constitution."
}
},
{
"from_name": "label",
"id": "001fbf8cd67843f0842d4c28667bd363",
"to_name": "text",
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"end": 2684,
"labels": [
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],
"start": 2402,
"text": "When the Constitution or\nany enacted law has embraced and confirmed the inherent\npower and the jurisdiction of the High Court which\npreviously existed, that power and jurisdiction has the\nsanction of an en-acted 'law' within the meaning of Art. 21.\n[929H; 93A-B]\nCase law discussed."
}
},
{
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"id": "332a29ec246f4ebfbd4cd4b21fedbcb2",
"to_name": "text",
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"end": 2873,
"labels": [
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],
"start": 2684,
"text": "\n[On the facts the court noted that there had been\nunnecessary delay in the examination of the foreign\nwitnesses and directed that the appellant should be released\non bail on June 26, 1967."
}
},
{
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"to_name": "text",
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"end": 2884,
"labels": [
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],
"start": 2873,
"text": "\n\nJUDGMENT:"
}
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"to_name": "text",
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"end": 2948,
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],
"start": 2884,
"text": "CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.\n64 of 1967."
}
},
{
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"id": "29daf854ee0640268eee65d12cb796fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 3092,
"labels": [
"NONE"
],
"start": 2948,
"text": "\n 927 Appeal by special leave from the judgment and order dated March 3, 1967 of the Bombay High Court in Criminal Applica- tion No. 24 of 1967."
}
},
{
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"id": "3937403141034d89b43de433a86912a9",
"to_name": "text",
"type": "labels",
"value": {
"end": 3153,
"labels": [
"NONE"
],
"start": 3092,
"text": "\nA . K. Sen, S. G. Sheth and I. N. Shroff, for the appellant."
}
},
{
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"id": "d076172157d340b8ac72b9256501234d",
"to_name": "text",
"type": "labels",
"value": {
"end": 3205,
"labels": [
"NONE"
],
"start": 3153,
"text": "\nN. S. Bindra and S. P. Nayyar, for the respondents."
}
},
{
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"id": "0d87b57e7e684fdf932fc19236eceda5",
"to_name": "text",
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"end": 3261,
"labels": [
"NONE"
],
"start": 3205,
"text": "\nThe Judgment of the Court was delivered by Bachawat, J."
}
},
{
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"to_name": "text",
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"value": {
"end": 3481,
"labels": [
"FAC"
],
"start": 3262,
"text": "The appellant along with other persons is being tried for an offence under Sec. 120B of the Indian Penal Code read with Sec. 167(81) of the Sea Customs Act, 1878, and Sec. 5 of the Imports and Exports Control Act, 1947."
}
},
{
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"id": "a32605671658464db4bc5d6f2560f435",
"to_name": "text",
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"end": 3506,
"labels": [
"FAC"
],
"start": 3481,
"text": "\nThe offence is bailable."
}
},
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"id": "c36cbeef89a943b1bb5f96341334abed",
"to_name": "text",
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"end": 3607,
"labels": [
"FAC"
],
"start": 3507,
"text": "The appellant was released on bail under orders of Magistrates dated May 11, 1960 and April 1, 1961."
}
},
{
"from_name": "label",
"id": "b318a383c1cf40d891992cf74356323a",
"to_name": "text",
"type": "labels",
"value": {
"end": 3696,
"labels": [
"FAC"
],
"start": 3608,
"text": "A large number of witnesses have been examined but the trial has not yet been concluded."
}
},
{
"from_name": "label",
"id": "5685b1d4e35545dea531ef1d187a5def",
"to_name": "text",
"type": "labels",
"value": {
"end": 3884,
"labels": [
"FAC"
],
"start": 3697,
"text": "By an order dated March 3/6, 1967, the High Court of Maharashtra, Bombay, in the exercise of its inherent jurisdiction cancelled the bail orders and directed him to surrender to his bail."
}
},
{
"from_name": "label",
"id": "01a8879d16e04798bb8d73256c1b9dcc",
"to_name": "text",
"type": "labels",
"value": {
"end": 3953,
"labels": [
"FAC"
],
"start": 3885,
"text": "From this order, the present appeal has been filed by special leave."
}
},
{
"from_name": "label",
"id": "421e87f6df8e48029c830c5bee35d911",
"to_name": "text",
"type": "labels",
"value": {
"end": 4337,
"labels": [
"ANALYSIS"
],
"start": 3953,
"text": "\nIn Talab Haji Hussain v. Madhukar Purshottam Mondkar and another(1), this Court held that a High Court has the inhe- rent power to cancel a bail granted to a person accused of a bailable offence where such an order is necessary to secure the ends of justice or to prevent the abuse of process of any Court, and this power is preserved by Sec. 561-A of the Code of Criminal Procedure."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 4426,
"labels": [
"ANALYSIS"
],
"start": 4337,
"text": "\nOn behalf of the appellant it was strenuously argued that this case was wrongly decided."
}
},
{
"from_name": "label",
"id": "999c4ef6d9b7423a8181f158cc40e45f",
"to_name": "text",
"type": "labels",
"value": {
"end": 4514,
"labels": [
"ANALYSIS"
],
"start": 4427,
"text": "Having heard full arguments, we find no reason for departing from our earlier decision."
}
},
{
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"id": "6fea5ea8c74b4abe81cdfd8973c3ef17",
"to_name": "text",
"type": "labels",
"value": {
"end": 4646,
"labels": [
"ANALYSIS"
],
"start": 4514,
"text": "\nIn the matter of admission to bail, the Code of Criminal Procedure makes a distinction between bailable and non- bailable offences."
}
},
{
"from_name": "label",
"id": "a69ba78bb9f44e579f29f60ab994ee15",
"to_name": "text",
"type": "labels",
"value": {
"end": 4917,
"labels": [
"ANALYSIS"
],
"start": 4647,
"text": "The grant of bail to a person - accused of a non-bailable offence is discretionary under Sec. 497 of the Code and the person released on bail may again be arrested and committed to custody by an order of the High Court, the Court Session and the Court granting the bail."
}
},
{
"from_name": "label",
"id": "8a9f253ea4844e81b88bb88e3be7e306",
"to_name": "text",
"type": "labels",
"value": {
"end": 5119,
"labels": [
"ANALYSIS"
],
"start": 4917,
"text": "\nUnder See. 498 of the Code the High Court and the Court of Session may release any person on bail and by a subsequent order cause any person so admitted to bail to be arrested and committed to custody."
}
},
{
"from_name": "label",
"id": "08ada90378f04a229739657cb51a15e4",
"to_name": "text",
"type": "labels",
"value": {
"end": 5383,
"labels": [
"ANALYSIS"
],
"start": 5120,
"text": "A person accused of a bailable offence is treated differently; at any time while under detention without a warrant and at any stage of the proceedings before the Court before which he is brought, he has the right under Sec. 496 of the Code to be released on bail."
}
},
{
"from_name": "label",
"id": "873522eb23e343b39c120ab7231a5189",
"to_name": "text",
"type": "labels",
"value": {
"end": 5476,
"labels": [
"ANALYSIS"
],
"start": 5384,
"text": "The Code makes no express provision for the cancellation of a bail granted under Sec. 496.\n "
}
},
{
"from_name": "label",
"id": "1a9e39f8a6a54b5683a7125083fef879",
"to_name": "text",
"type": "labels",
"value": {
"end": 5842,
"labels": [
"ANALYSIS"
],
"start": 5476,
"text": "Nevertheless, if at any subsequent stage of the proceedings, it is found that any person accused of a bailable offence is (1) [1958 S.C.R. 1226] 9 2 8 intimidating, bringing or tampering with the prosecution witnesses or is attempting to abscond, the High Court has the power to cause him to be arrested and to commit him to custody for such period as it thinks fit."
}
},
{
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"id": "ab82c8bee598425f92dbd24148f493c3",
"to_name": "text",
"type": "labels",
"value": {
"end": 6088,
"labels": [
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],
"start": 5843,
"text": "This jurisdiction springs from the over-riding inherent powers of the High Court and can be invoked in exceptional cases only when the High Court is satisfied that the ends of justice will be, defeated unless the accused is committed to custody."
}
},
{
"from_name": "label",
"id": "fcf7cfad485c4fa798803258f5346740",
"to_name": "text",
"type": "labels",
"value": {
"end": 6245,
"labels": [
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],
"start": 6089,
"text": "For the reasons given in Talab Haji Hussain's case(1), we hold that this inherent power of the High Court exists and is preserved by Sec. 561-A of the Code."
}
},
{
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"id": "a019645853134e51b44f936634149878",
"to_name": "text",
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"value": {
"end": 6433,
"labels": [
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],
"start": 6246,
"text": "The person committed to custody under the orders of the High Court cannot ask for his release on bail under sec. 496, but the High Court may by a subsequent order admit him to bail again."
}
},
{
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"id": "99c2a71c3c81435188883bd1f731294a",
"to_name": "text",
"type": "labels",
"value": {
"end": 6769,
"labels": [
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],
"start": 6433,
"text": "\n Counsel for the appellant argued that the inherent power of the High Court is not conferred by any legislation or statute, and the deprivation of the personal liberty of the appellant by an order of the High Court in the exercise of its inherent -powers is violative of the constitutional protection under Art. 21 of the Constitution."
}
},
{
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"id": "65e3a74a6b0f4ecda63c2bbb373cf0be",
"to_name": "text",
"type": "labels",
"value": {
"end": 7022,
"labels": [
"STA"
],
"start": 6769,
"text": "\n Art. 21 is in these terms \"No person shall be deprived of his life or personal liberty except according to procedure established by law.\"\n The term 'law' in Art. 21 was the subject of an elaborate discussion in A. K. Gapalan v. The State of Madras(-)."
}
},
{
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"id": "4115af1c35cf4822bb066fda32f44cf7",
"to_name": "text",
"type": "labels",
"value": {
"end": 7171,
"labels": [
"PRE_RELIED"
],
"start": 7024,
"text": "Kania C.J. at pp. 111-113 said that the term 'law' in that Article must mean the law of the State or enacted law, and not rules of natural justice."
}
},
{
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"id": "d5c1710a5bc444cb8ca12540a2117b28",
"to_name": "text",
"type": "labels",
"value": {
"end": 7288,
"labels": [
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],
"start": 7172,
"text": "Fazl Ali J. who was in the minority, said at page 169 that 'law' must include certain principles of natural justice."
}
},
{
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"id": "b7bec8fe47404447b1da2abf39023f68",
"to_name": "text",
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"value": {
"end": 7381,
"labels": [
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],
"start": 7289,
"text": "Patanjali Sastri J. at p. 1 99 said that 'law' in Art. 21 means positive or State-made law'."
}
},
{
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"id": "d08a3219511b477aa0c8a2ea95b6b6c4",
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"type": "labels",
"value": {
"end": 7439,
"labels": [
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],
"start": 7382,
"text": "Mahajan J. at page 226 expressed no opinion on the point."
}
},
{
"from_name": "label",
"id": "f80c69534ab646b684128ff7ebccdc53",
"to_name": "text",
"type": "labels",
"value": {
"end": 7658,
"labels": [
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],
"start": 7440,
"text": "Mukherjea J. at p. 278 said that \"in article 21 the word 'law' has been used in the sense of State-made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice.\""
}
},
{
"from_name": "label",
"id": "defede70ecc24413a536bfeb0adf6234",
"to_name": "text",
"type": "labels",
"value": {
"end": 7938,
"labels": [
"PRE_RELIED"
],
"start": 7659,
"text": "Das J. said at page 309 that \"there is no scope for introducing the principles of natural justice in Article 21 and 'procedure established by law' must mean procedure established by law made by the State which, as defined, includes Parliament and the Legislatures of the States.\""
}
},
{
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"id": "8cc0bd688f814af3a93b964b5b1a9274",
"to_name": "text",
"type": "labels",
"value": {
"end": 8125,
"labels": [
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],
"start": 7939,
"text": "As explained by four of the learned Judges in A. K. Gapalan's case(1), the expression 'law' in Art. 21 means enacted or Statemade law, and not the general principles of natural _justice."
}
},
{
"from_name": "label",
"id": "9b25795a2fd04253844bdb0392d12960",
"to_name": "text",
"type": "labels",
"value": {
"end": 8994,
"labels": [
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],
"start": 8127,
"text": "In Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha and others(1), this Court held that a deprivation of personal liberty of any person by a Legislative Assembly of a State in exercise (1) [1958] S.C.R. 1226. (2) [1950] S.C.R. 88.\n (3) [1959] Stipp. I S.C.R.8 6.\n 929, of its power to punish for its contempt is according to a procedure established by law and does not contravene Art.\n 21. Art.194(3) of the Constitution provides that \"the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution.\""
}
},
{
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"id": "7aca348e4ebf4862927cf62e0f35eff3",
"to_name": "text",
"type": "labels",
"value": {
"end": 9051,
"labels": [
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],
"start": 8995,
"text": "Article 194(3) thus confers on the Legislative Assembly."
}
},
{
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"id": "aa86d7c66c7f4179bc77c0ff8903d193",
"to_name": "text",
"type": "labels",
"value": {
"end": 9179,
"labels": [
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],
"start": 9052,
"text": "of a State the existing inherent powers enjoyed by the British House of Commons including the power to punish for its contempt."
}
},
{
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"id": "1be46be2cdcd4a0fb956c4cf199c8406",
"to_name": "text",
"type": "labels",
"value": {
"end": 9267,
"labels": [
"PRE_RELIED"
],
"start": 9180,
"text": "Art. 208 (1 ) empowers the Legislative Assembly to make rules regulating its procedure."
}
},
{
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"id": "e9ed1adae2914784b84828c8f74953a8",
"to_name": "text",
"type": "labels",
"value": {
"end": 9496,
"labels": [
"PRE_RELIED"
],
"start": 9268,
"text": "As explained in Pandit Sharma's case(1), these powers and the procedure prescribed by the rules has the sanction of enacted law and an order of committal for contempt of the Assembly is according to procedure established by law."
}
},
{
"from_name": "label",
"id": "1ccd0c88edd146988dff6dd4499eb9c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 9696,
"labels": [
"PRE_RELIED"
],
"start": 9497,
"text": "Das C.J., speaking for four learned Judges said at page 861 : \"Art, 194(3) confers on the Legislative Assembly those powers, privileges and immunities and Art. 208 confers power on it to frame rules."
}
},
{
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"id": "dd27e62c836b4fdcae930823ebee0056",
"to_name": "text",
"type": "labels",
"value": {
"end": 9790,
"labels": [
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],
"start": 9697,
"text": "The Bihar Legislative Assembly has framed rules in exercise of its powers under that Article."
}
},
{
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"id": "6a43ab7c0f9a400e9b68c97524ee2b5d",
"to_name": "text",
"type": "labels",
"value": {
"end": 9943,
"labels": [
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],
"start": 9791,
"text": "It follows, therefore, that Art.\n194(3) read with the rules so framed has laid down the procedure for enforcing its powers, privileges and im- munities."
}
},
{
"from_name": "label",
"id": "1a16c19e03eb41c5a493590780587096",
"to_name": "text",
"type": "labels",
"value": {
"end": 10375,
"labels": [
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],
"start": 9944,
"text": "If, therefore, the Legislative Assembly has the powers, privileges and immunities of the House of Commons and if the petitioner is eventually deprived of his personal liberty as a result of the proceedings before the Committee of Privileges, such deprivation will be in accordance with procedure established by law and the petitioner cannot complain of the breach, 'I 'Actual or threatened, of his fundamental right under Art. 21.\""
}
},
{
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"id": "b4043fcfba8347d592261ff1a3006bcd",
"to_name": "text",
"type": "labels",
"value": {
"end": 10529,
"labels": [
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],
"start": 10376,
"text": "Subba Rao J. in his minority judgment in that case and the Court in Special Reference No. 1 of 1964 2 did not say anything to the contrary an this point."
}
},
{
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"id": "805fba6406a34c96b8b5326e3ea587c3",
"to_name": "text",
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"value": {
"end": 10647,
"labels": [
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],
"start": 10529,
"text": "\nNow the question is whether the inherent power of tile High Court is conferred by or has the sanction of enacted law."
}
},
{
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"id": "130f83ff724d44129160fe989cb55c54",
"to_name": "text",
"type": "labels",
"value": {
"end": 10860,
"labels": [
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],
"start": 10647,
"text": "\nFrom its very inception the High Court has possessed and enjoyed its inherent powers including the power to prevent the abuse of the process of any Court within its jurisdiction and to secure the ends of justice."
}
},
{
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"id": "35f031b5072541439c6b5c539b2d9900",
"to_name": "text",
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"value": {
"end": 10986,
"labels": [
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],
"start": 10861,
"text": "These powers inherent in the High Court and spring from its very nature and constitution as a court of superior jurisdiction."
}
},
{
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"id": "7b54a9fba2e642ddb37b31bc3e97bf9f",
"to_name": "text",
"type": "labels",
"value": {
"end": 11488,
"labels": [
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],
"start": 10987,
"text": "All the existing powers of the High Courts were preserved and continued by legislation from time to time,. Sec. 561-A of the Criminal Procedure Code declared that \"nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary (1) [1959] Supp.1 S.C.R. 806.\n(2) [1965] 1 S.C.R. 413.\n9 30 to give effect to any order passed under this Code, or to prevent the abuse of process of any Court or otherwise to secure the ends of justice.\""
}
},
{
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"id": "a826e7c26078478091333f968d267419",
"to_name": "text",
"type": "labels",
"value": {
"end": 11629,
"labels": [
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],
"start": 11489,
"text": "The section was inserted in the Code by Act XVIII of 1923 to obviate any doubt that these inherent powers have been taken away 'by the Code."
}
},
{
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"id": "ddb24f36ba5544a6ad02a89676dbe3d5",
"to_name": "text",
"type": "labels",
"value": {
"end": 11846,
"labels": [
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],
"start": 11630,
"text": "In terms, this section did not confer any power, it only declared that nothing in the Code shall be deemed to limit or affect the existing inherent powers of the High Court, see King Emperor v. Khwaja Nazir Ahmad(1)."
}
},
{
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"id": "7ea81557794f46dc98a023458dfd126c",
"to_name": "text",
"type": "labels",
"value": {
"end": 11904,
"labels": [
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],
"start": 11847,
"text": "Then came other enactments which were framed differently."
}
},
{
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"id": "06e879469ac346b18d13478da9c6fde4",
"to_name": "text",
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"value": {
"end": 12634,
"labels": [
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],
"start": 11905,
"text": "Sec. 2 2 of the Government of India Act, 1935, provided : \"Subject to the provisions of this Part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, the jurisdiction of and the law administered in, any existing High Court, and the respective powers of the judges thereof in relation to the administration of justice in the court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in division courts, shall be the same as immediately before the commencement of Part III of this Act.\""
}
},
{
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"id": "f9780b8444374d6c9263d4eb8680f61c",
"to_name": "text",
"type": "labels",
"value": {
"end": 12869,
"labels": [
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],
"start": 12634,
"text": "\nThe Section enacted that the jurisdiction of the existing High Courts and the powers of the judges thereof in relation to the administration of justice \"shall be\" the same as immediately before the commencement of Part III of the Act."
}
},
{
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"id": "5f9b03480b644627a1a33f8f9564f9d6",
"to_name": "text",
"type": "labels",
"value": {
"end": 12995,
"labels": [
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],
"start": 12869,
"text": "\nThe statute confirmed and re-vested in the High Court all its existing powers and jurisdiction including its inherent powers."
}
},
{
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"id": "50dde8ff412a48b48e9c46ab033ecdf9",
"to_name": "text",
"type": "labels",
"value": {
"end": 13023,
"labels": [
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],
"start": 12996,
"text": "Then came the Constitution."
}
},
{
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"id": "c92f9ae41bdd43fead7cc0cbe2825279",
"to_name": "text",
"type": "labels",
"value": {
"end": 13664,
"labels": [
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],
"start": 13024,
"text": "Art. 225 of the Constitution provides : \"225. Subject to the provisions of this Constitution and to the provisions of any law of the appropriate legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the, respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution."
}
},
{
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"id": "504afc97650f47eda9f5757c82d76d55",
"to_name": "text",
"type": "labels",
"value": {
"end": 13729,
"labels": [
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],
"start": 13664,
"text": "\nThe proviso to the article is not material and need not be read."
}
},
{
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"id": "af3b43a1509c4e029036501b7eb4473a",
"to_name": "text",
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"value": {
"end": 13957,
"labels": [
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],
"start": 13730,
"text": "The irticle enacts that the jurisdiction of the existing High Courts and the powers of the judges thereof in relation to administration of justice \"shall be\" the same as immediately before the cornmencement of the Constitution."
}
},
{
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"id": "28b544b229a64eb9ab4c63bde2ce1fed",
"to_name": "text",
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"end": 14148,
"labels": [
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],
"start": 13957,
"text": "\nThe Constitution confirmed and (1) L.R. 61 I.A. 203,213.\n 931 re-vested in the High Court all its existing powers and jurisdiction including its inherent powers, and its power to make rules."
}
},
{
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"id": "f9efb5d3918f42b4a7bbb31563e4cfc9",
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"end": 14432,
"labels": [
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],
"start": 14149,
"text": "When the Constitution or any enacted law has embraced and confirmed the inherent powers and jurisdiction of the High Court which previously existed, that power and jurisdiction has the sanction of an enacted saw\" within the meaning of Art. 21 as explained in A. K. Gopalan's(l) case."
}
},
{
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"id": "dc9f3ba6c5eb495aa3b2e2d517862a67",
"to_name": "text",
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"value": {
"end": 14591,
"labels": [
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],
"start": 14433,
"text": "The inherent powers of the High Court preserved by Sec. 561- A of the Code of Criminal Procedure are thus vested in it by \"law\" within the meaning of Art. 21."
}
},
{
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"id": "95b8dcca745046309ab1bfdac3654c47",
"to_name": "text",
"type": "labels",
"value": {
"end": 14686,
"labels": [
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],
"start": 14592,
"text": "The procedure for invoking the inherent powers is regulated by rules framed by the High Court."
}
},
{
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"id": "a772057e543444f6be7419ad73cb7fb8",
"to_name": "text",
"type": "labels",
"value": {
"end": 14767,
"labels": [
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],
"start": 14687,
"text": "The power to make such rules is conferred on the High Court by the Constitution."
}
},
{
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"id": "cfebf510d8e84f889ee2edc4c87720a5",
"to_name": "text",
"type": "labels",
"value": {
"end": 14857,
"labels": [
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],
"start": 14768,
"text": "The rules previously in force were continued in force by Article 372 of the Constitution."
}
},
{
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"id": "a927083de618446a898036e5c87ce977",
"to_name": "text",
"type": "labels",
"value": {
"end": 15034,
"labels": [
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],
"start": 14858,
"text": "The order of the High Court canceling the bail and depriving the appellant of his personal liberty is according to procedure established by law and is not violative of Art. 21."
}
},
{
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"id": "6f8da916b6064981a8de0ca4dde857b5",
"to_name": "text",
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"value": {
"end": 15231,
"labels": [
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],
"start": 15034,
"text": "\nThe High Court cancelled the previous bail orders, as it found that the appellant was intimidating and tampering with certain German citizens whom the prosecution intended to examine as witnesses."
}
},
{
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"id": "4de4e4541aca48ccb1fd03b0e71ba49f",
"to_name": "text",
"type": "labels",
"value": {
"end": 15276,
"labels": [
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],
"start": 15232,
"text": "This finding is challenged by the appellant."
}
},
{
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"id": "a895e73b60da4dbc88b8f5daf0674b64",
"to_name": "text",
"type": "labels",
"value": {
"end": 15403,
"labels": [
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],
"start": 15277,
"text": "Normally, it is not the practice of this Court to re-examine findings of fact in an appeal under Art. 136 of the Constitution."
}
},
{
"from_name": "label",
"id": "dc2ede188bba49568afa6e16d3aaeb76",
"to_name": "text",
"type": "labels",
"value": {
"end": 15502,
"labels": [
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],
"start": 15404,
"text": "Having heard full arguments, we are not inclined to interfere with the findings of the High Court."
}
},
{
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"id": "6e92d2103f54490bbfca8094e974b61c",
"to_name": "text",
"type": "labels",
"value": {
"end": 15628,
"labels": [
"ANALYSIS"
],
"start": 15503,
"text": "The High Court reserved liberty to the appellant to move the High Court on or after June 26, 1967, for a fresh order of bail."
}
},
{
"from_name": "label",
"id": "7b9cd89c6ea84e23ac7febbf8de3c4ce",
"to_name": "text",
"type": "labels",
"value": {
"end": 15730,
"labels": [
"ANALYSIS"
],
"start": 15629,
"text": "It was contemplated that within the time so fixed, the prosecution will examine the German witnesses."
}
},
{
"from_name": "label",
"id": "ab674dff5d704e398ff644d9bcba78d0",
"to_name": "text",
"type": "labels",
"value": {
"end": 15825,
"labels": [
"ANALYSIS"
],
"start": 15730,
"text": "\nOn March 13, 1967, the appellant surrendered to his bail and since then he is in jail custody."
}
},
{
"from_name": "label",
"id": "ba72264926604d869f86c1c9ef2ad20a",
"to_name": "text",
"type": "labels",
"value": {
"end": 15966,
"labels": [
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],
"start": 15826,
"text": "The prosecution has been given ample opportunity to examine the witnesses before June 26, 1967, without any interference from the appellant."
}
},
{
"from_name": "label",
"id": "e0734d9f701444d8881dce5eb5cd4727",
"to_name": "text",
"type": "labels",
"value": {
"end": 16150,
"labels": [
"ANALYSIS"
],
"start": 15967,
"text": "From the correspondence placed before us, it appears that during the pendency of this appeal the prosecution has refrained from taking steps for the examination of the German witness."
}
},
{
"from_name": "label",
"id": "38ae63783966481684532b63d0c7e0dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 16244,
"labels": [
"ANALYSIS"
],
"start": 16150,
"text": "\nThis Court did not pass any order staying the proceedings or admitting the appellant to bail."
}
},
{
"from_name": "label",
"id": "87d7c8459cbd4c0ab19ee6e0c431f7c0",
"to_name": "text",
"type": "labels",
"value": {
"end": 16343,
"labels": [
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],
"start": 16245,
"text": "The delay in the examination of the witnesses is caused entirely by the laches of the prosecution."
}
},
{
"from_name": "label",
"id": "4a95721362694e1396e63867cabe7b4f",
"to_name": "text",
"type": "labels",
"value": {
"end": 16495,
"labels": [
"RATIO"
],
"start": 16344,
"text": "Even if the prosecution cannot now examine the witnesses by June 26, 1967, we see no reason why the appellant should remain in custody after that date."
}
},
{
"from_name": "label",
"id": "3f4dc17333f74f26b0359292c3fe74ee",
"to_name": "text",
"type": "labels",
"value": {
"end": 16630,
"labels": [
"RPC"
],
"start": 16495,
"text": "\nWe direct that the appellant be released on bail on June 26, 1967, whether or not the prosecution witnesses are examined by that date."
}
},
{
"from_name": "label",
"id": "fb970ebdcf2f46fe9100eb274a48740e",
"to_name": "text",
"type": "labels",
"value": {
"end": 16767,
"labels": [
"RPC"
],
"start": 16631,
"text": "The bail will be given to the satisfaction of the Presidency Magistrate, 23rd Court, Esplanade, Bombay, before whom the case is pending."
}
},
{
"from_name": "label",
"id": "ea76cb942455451d9e4b3efd8c414aa0",
"to_name": "text",
"type": "labels",
"value": {
"end": 16822,
"labels": [
"RPC"
],
"start": 16768,
"text": "Subject to this modification, the appeal is dismissed."
}
},
{
"from_name": "label",
"id": "c70a992f6575406a87881dae88a0bd7a",
"to_name": "text",
"type": "labels",
"value": {
"end": 16860,
"labels": [
"RPC"
],
"start": 16822,
"text": "\n Order modified and Appeal dismissed."
}
},
{
"from_name": "label",
"id": "fd65a1fa9dc045fe9b75598541d4f397",
"to_name": "text",
"type": "labels",
"value": {
"end": 16895,
"labels": [
"NONE"
],
"start": 16860,
"text": "\nR.K.P.S.\n(1) [1950] S.C.R. 88.\n932"
}
}
]
}
] | 1,732 | {
"text": "PETITIONER:\nRATILAL BHANJI MITHANI\n\n Vs.\n\nRESPONDENT:\nASSTT. COLLECTOR OF CUSTOMS, BOMBAY & ANR.\n\nDATE OF JUDGMENT:\n04/05/1967\n\nBENCH:\nBACHAWAT, R.S.\nBENCH:\nBACHAWAT, R.S.\nWANCHOO, K.N. (CJ)\nSHELAT, J.M.\nBHARGAVA, VISHISHTHA\nMITTER, G.K.\n\nCITATION:\n\n1967 AIR 1639 1967 SCR (3) 926\n (21)\nCITATOR INFO :\n\nR 1982 SC 710\n\nACT:\nConstitution of India, Arts. 21 and 225-High Court\ncancelling bail in exercise of inherent powers-Whether such\npowers violative of Art. 21-Or whether 'law' within the\nmeaning of Art. 21.\n\nHEADNOTE:\nThe appellant along with others was being tried for an\noffence under s. 120B of the Indian Penal Code read with s.\n167 (81) of the Sea Customs Act, 1878, and s. 5 of the\nImports and Exports Control Act, 1947. Although he was at\nfirst released on bail by the Presidency Magistrate, the\nHigh Court, by an order dated March 6, 1967 in the exercise\nof its inherent powers cancelled the previous bail orders,\nas it found that the appellant was interfering and tampering\nwith certain foreigners whom the prosecution intended to\nexamine as witnesses. The High Court, however, reserved\nliberty to the appellant to move the court on or after June\n26, 1967 far a fresh order of bail as it was contemplated\nthat within the time so fixed, the prosecution would examine\nthe foreign witnesses.\nIn the appeal to this Court, the appellant challenged the\norder of the High Court on the ground that the inherent\npowers of the High Court were not conferred by any\nlegislation or statute, and the deprivation of the personal\nliberty of the appellant by an order of the High Court in\nthe exercise of its inherent powers was violative of Art, '-\nII of the Constitution\nHELD : The High Court 'has the inherent power to cancel bail\ngranted to a person accused of a bailable offence. This\njurisdiction should be invoked in exceptional cases only\nwhen the High Court is satisfied that the ends of justice\nwill be defeated unless the accused is committed to custody.\n[928A-B]\nThe order of the High Court cancelling the bail and\ndepriving the appellant of his personal liberty was\naccording to procedure established by law was not violative\n\nof Art. 21. [931C]\nThe existing powers and jurisdiction of the High Court,\nincluding its inherent powers, had been confirmed and\ncontinued by s. 223 of the Government of India Act, 1935,\nand Art. 225 of the Constitution. When the Constitution or\nany enacted law has embraced and confirmed the inherent\npower and the jurisdiction of the High Court which\npreviously existed, that power and jurisdiction has the\nsanction of an en-acted 'law' within the meaning of Art. 21.\n[929H; 93A-B]\nCase law discussed.\n[On the facts the court noted that there had been\nunnecessary delay in the examination of the foreign\nwitnesses and directed that the appellant should be released\non bail on June 26, 1967.\n\nJUDGMENT:CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.\n64 of 1967.\n 927 Appeal by special leave from the judgment and order dated March 3, 1967 of the Bombay High Court in Criminal Applica- tion No. 24 of 1967.\nA . K. Sen, S. G. Sheth and I. N. Shroff, for the appellant.\nN. S. Bindra and S. P. Nayyar, for the respondents.\nThe Judgment of the Court was delivered by Bachawat, J. The appellant along with other persons is being tried for an offence under Sec. 120B of the Indian Penal Code read with Sec. 167(81) of the Sea Customs Act, 1878, and Sec. 5 of the Imports and Exports Control Act, 1947.\nThe offence is bailable. The appellant was released on bail under orders of Magistrates dated May 11, 1960 and April 1, 1961. A large number of witnesses have been examined but the trial has not yet been concluded. By an order dated March 3/6, 1967, the High Court of Maharashtra, Bombay, in the exercise of its inherent jurisdiction cancelled the bail orders and directed him to surrender to his bail. From this order, the present appeal has been filed by special leave.\nIn Talab Haji Hussain v. Madhukar Purshottam Mondkar and another(1), this Court held that a High Court has the inhe- rent power to cancel a bail granted to a person accused of a bailable offence where such an order is necessary to secure the ends of justice or to prevent the abuse of process of any Court, and this power is preserved by Sec. 561-A of the Code of Criminal Procedure.\nOn behalf of the appellant it was strenuously argued that this case was wrongly decided. Having heard full arguments, we find no reason for departing from our earlier decision.\nIn the matter of admission to bail, the Code of Criminal Procedure makes a distinction between bailable and non- bailable offences. The grant of bail to a person - accused of a non-bailable offence is discretionary under Sec. 497 of the Code and the person released on bail may again be arrested and committed to custody by an order of the High Court, the Court Session and the Court granting the bail.\nUnder See. 498 of the Code the High Court and the Court of Session may release any person on bail and by a subsequent order cause any person so admitted to bail to be arrested and committed to custody. A person accused of a bailable offence is treated differently; at any time while under detention without a warrant and at any stage of the proceedings before the Court before which he is brought, he has the right under Sec. 496 of the Code to be released on bail. The Code makes no express provision for the cancellation of a bail granted under Sec. 496.\n Nevertheless, if at any subsequent stage of the proceedings, it is found that any person accused of a bailable offence is (1) [1958 S.C.R. 1226] 9 2 8 intimidating, bringing or tampering with the prosecution witnesses or is attempting to abscond, the High Court has the power to cause him to be arrested and to commit him to custody for such period as it thinks fit. This jurisdiction springs from the over-riding inherent powers of the High Court and can be invoked in exceptional cases only when the High Court is satisfied that the ends of justice will be, defeated unless the accused is committed to custody. For the reasons given in Talab Haji Hussain's case(1), we hold that this inherent power of the High Court exists and is preserved by Sec. 561-A of the Code. The person committed to custody under the orders of the High Court cannot ask for his release on bail under sec. 496, but the High Court may by a subsequent order admit him to bail again.\n Counsel for the appellant argued that the inherent power of the High Court is not conferred by any legislation or statute, and the deprivation of the personal liberty of the appellant by an order of the High Court in the exercise of its inherent -powers is violative of the constitutional protection under Art. 21 of the Constitution.\n Art. 21 is in these terms \"No person shall be deprived of his life or personal liberty except according to procedure established by law.\"\n The term 'law' in Art. 21 was the subject of an elaborate discussion in A. K. Gapalan v. The State of Madras(-).\n Kania C.J. at pp. 111-113 said that the term 'law' in that Article must mean the law of the State or enacted law, and not rules of natural justice. Fazl Ali J. who was in the minority, said at page 169 that 'law' must include certain principles of natural justice. Patanjali Sastri J. at p. 1 99 said that 'law' in Art. 21 means positive or State-made law'. Mahajan J. at page 226 expressed no opinion on the point. Mukherjea J. at p. 278 said that \"in article 21 the word 'law' has been used in the sense of State-made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice.\" Das J. said at page 309 that \"there is no scope for introducing the principles of natural justice in Article 21 and 'procedure established by law' must mean procedure established by law made by the State which, as defined, includes Parliament and the Legislatures of the States.\" As explained by four of the learned Judges in A. K. Gapalan's case(1), the expression 'law' in Art. 21 means enacted or Statemade law, and not the general principles of natural _justice.\n In Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha and others(1), this Court held that a deprivation of personal liberty of any person by a Legislative Assembly of a State in exercise (1) [1958] S.C.R. 1226. (2) [1950] S.C.R. 88.\n (3) [1959] Stipp. I S.C.R.8 6.\n 929, of its power to punish for its contempt is according to a procedure established by law and does not contravene Art.\n 21. Art.194(3) of the Constitution provides that \"the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution.\" Article 194(3) thus confers on the Legislative Assembly. of a State the existing inherent powers enjoyed by the British House of Commons including the power to punish for its contempt. Art. 208 (1 ) empowers the Legislative Assembly to make rules regulating its procedure. As explained in Pandit Sharma's case(1), these powers and the procedure prescribed by the rules has the sanction of enacted law and an order of committal for contempt of the Assembly is according to procedure established by law. Das C.J., speaking for four learned Judges said at page 861 : \"Art, 194(3) confers on the Legislative Assembly those powers, privileges and immunities and Art. 208 confers power on it to frame rules. The Bihar Legislative Assembly has framed rules in exercise of its powers under that Article. It follows, therefore, that Art.\n194(3) read with the rules so framed has laid down the procedure for enforcing its powers, privileges and im- munities. If, therefore, the Legislative Assembly has the powers, privileges and immunities of the House of Commons and if the petitioner is eventually deprived of his personal liberty as a result of the proceedings before the Committee of Privileges, such deprivation will be in accordance with procedure established by law and the petitioner cannot complain of the breach, 'I 'Actual or threatened, of his fundamental right under Art. 21.\" Subba Rao J. in his minority judgment in that case and the Court in Special Reference No. 1 of 1964 2 did not say anything to the contrary an this point.\nNow the question is whether the inherent power of tile High Court is conferred by or has the sanction of enacted law.\nFrom its very inception the High Court has possessed and enjoyed its inherent powers including the power to prevent the abuse of the process of any Court within its jurisdiction and to secure the ends of justice. These powers inherent in the High Court and spring from its very nature and constitution as a court of superior jurisdiction.\nAll the existing powers of the High Courts were preserved and continued by legislation from time to time,. Sec. 561-A of the Criminal Procedure Code declared that \"nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary (1) [1959] Supp.1 S.C.R. 806.\n(2) [1965] 1 S.C.R. 413.\n9 30 to give effect to any order passed under this Code, or to prevent the abuse of process of any Court or otherwise to secure the ends of justice.\" The section was inserted in the Code by Act XVIII of 1923 to obviate any doubt that these inherent powers have been taken away 'by the Code. In terms, this section did not confer any power, it only declared that nothing in the Code shall be deemed to limit or affect the existing inherent powers of the High Court, see King Emperor v. Khwaja Nazir Ahmad(1). Then came other enactments which were framed differently. Sec. 2 2 of the Government of India Act, 1935, provided : \"Subject to the provisions of this Part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, the jurisdiction of and the law administered in, any existing High Court, and the respective powers of the judges thereof in relation to the administration of justice in the court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in division courts, shall be the same as immediately before the commencement of Part III of this Act.\"\nThe Section enacted that the jurisdiction of the existing High Courts and the powers of the judges thereof in relation to the administration of justice \"shall be\" the same as immediately before the commencement of Part III of the Act.\nThe statute confirmed and re-vested in the High Court all its existing powers and jurisdiction including its inherent powers. Then came the Constitution. Art. 225 of the Constitution provides : \"225. Subject to the provisions of this Constitution and to the provisions of any law of the appropriate legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the, respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution.\nThe proviso to the article is not material and need not be read. The irticle enacts that the jurisdiction of the existing High Courts and the powers of the judges thereof in relation to administration of justice \"shall be\" the same as immediately before the cornmencement of the Constitution.\nThe Constitution confirmed and (1) L.R. 61 I.A. 203,213.\n 931 re-vested in the High Court all its existing powers and jurisdiction including its inherent powers, and its power to make rules. When the Constitution or any enacted law has embraced and confirmed the inherent powers and jurisdiction of the High Court which previously existed, that power and jurisdiction has the sanction of an enacted saw\" within the meaning of Art. 21 as explained in A. K. Gopalan's(l) case.\nThe inherent powers of the High Court preserved by Sec. 561- A of the Code of Criminal Procedure are thus vested in it by \"law\" within the meaning of Art. 21. The procedure for invoking the inherent powers is regulated by rules framed by the High Court. The power to make such rules is conferred on the High Court by the Constitution. The rules previously in force were continued in force by Article 372 of the Constitution. The order of the High Court canceling the bail and depriving the appellant of his personal liberty is according to procedure established by law and is not violative of Art. 21.\nThe High Court cancelled the previous bail orders, as it found that the appellant was intimidating and tampering with certain German citizens whom the prosecution intended to examine as witnesses. This finding is challenged by the appellant. Normally, it is not the practice of this Court to re-examine findings of fact in an appeal under Art. 136 of the Constitution. Having heard full arguments, we are not inclined to interfere with the findings of the High Court. The High Court reserved liberty to the appellant to move the High Court on or after June 26, 1967, for a fresh order of bail. It was contemplated that within the time so fixed, the prosecution will examine the German witnesses.\nOn March 13, 1967, the appellant surrendered to his bail and since then he is in jail custody. The prosecution has been given ample opportunity to examine the witnesses before June 26, 1967, without any interference from the appellant. From the correspondence placed before us, it appears that during the pendency of this appeal the prosecution has refrained from taking steps for the examination of the German witness.\nThis Court did not pass any order staying the proceedings or admitting the appellant to bail. The delay in the examination of the witnesses is caused entirely by the laches of the prosecution. Even if the prosecution cannot now examine the witnesses by June 26, 1967, we see no reason why the appellant should remain in custody after that date.\nWe direct that the appellant be released on bail on June 26, 1967, whether or not the prosecution witnesses are examined by that date. The bail will be given to the satisfaction of the Presidency Magistrate, 23rd Court, Esplanade, Bombay, before whom the case is pending. Subject to this modification, the appeal is dismissed.\n Order modified and Appeal dismissed.\nR.K.P.S.\n(1) [1950] S.C.R. 88.\n932 "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "b49d4b590de3449c8ad191833fc19bac",
"to_name": null,
"type": null,
"value": {
"end": 50,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nDHARAM PAL & ORS.\n\n Vs.\n\nRESPONDENT:"
}
},
{
"from_name": null,
"id": "ffe822c2d6fc4528b0d2230588a64e2a",
"to_name": null,
"type": null,
"value": {
"end": 96,
"labels": [
"PREAMBLE"
],
"start": 50,
"text": "\nTHE STATE OF U.P.\n\nDATE OF JUDGMENT01/09/1975"
}
},
{
"from_name": null,
"id": "07df1bf710764a649428fdd88eb6ebe7",
"to_name": null,
"type": null,
"value": {
"end": 771,
"labels": [
"PREAMBLE"
],
"start": 96,
"text": "\n\nBENCH:\nBEG, M. HAMEEDULLAH\nBENCH:\nBEG, M. HAMEEDULLAH\nBHAGWATI, P.N.\nSARKARIA, RANJIT SINGH\n\nCITATION:\n\n1975 AIR 1917 1976 SCR (1) 587\n (9,18)\n1975 SCC (2) 596\n\nCITATOR INFO :\n\nR 1976 SC1084\n\nACT:\n I.P.C. Sec . 302 read sec .149 and 34-Conviction of\n\nfour accused and acquittal of rest -Whether unlawful\nassembly Whether conviction under common intention -\nVicarious liability- U.P. Children Act, 1951-Sec. 29-Young\naccused -Recommendation of remission.\n\nHEADNOTE:\n The 4 appellants were tried along with 14 others for\n\nthe offence of rioting in the course of which 2 murders were\ncommitted at 6-30 a.m on 7-1967."
}
},
{
"from_name": null,
"id": "1b37b86d67944931b1dbfdfbe91a2e7b",
"to_name": null,
"type": null,
"value": {
"end": 926,
"labels": [
"PREAMBLE"
],
"start": 772,
"text": "The prosecution revealed a\nlong standing enmity between the tyo groups; one to which\nthe appellants belonged and the other to which the deceased\nbelonged."
}
},
{
"from_name": null,
"id": "6690b81c48d644d5a36afd0ea0375cdd",
"to_name": null,
"type": null,
"value": {
"end": 1078,
"labels": [
"PREAMBLE"
],
"start": 927,
"text": "The defence case was that people belonging to the\ngroup of the deceased killed the deceased and that\nthereafter they attacked the 3 injured appellants."
}
},
{
"from_name": null,
"id": "439c0a45e3fa40b4849ba655fd0ff274",
"to_name": null,
"type": null,
"value": {
"end": 1228,
"labels": [
"PREAMBLE"
],
"start": 1079,
"text": "At the\ntrial however, the defence witnesses stated that the 3\nwitnesses who were injured(l a(tempted to save the deceased\nand were therefore injured."
}
},
{
"from_name": null,
"id": "5f632d007f794033b1ec00ab566cc120",
"to_name": null,
"type": null,
"value": {
"end": 1309,
"labels": [
"PREAMBLE"
],
"start": 1228,
"text": "\n\n The prosecution evidence suffered from some quite\nobvious infirmitied."
}
},
{
"from_name": null,
"id": "e3396ad1cee84c04a4269b97344ba8af",
"to_name": null,
"type": null,
"value": {
"end": 1535,
"labels": [
"PREAMBLE"
],
"start": 1310,
"text": "Each of the 4 injured eye witnesses\nwhile naming each of the IX accused persons as participants\nin the occurrence and specifying their weapons without any\ncontradiction had failed to assign any particular part of\nany of them."
}
},
{
"from_name": null,
"id": "70bb6bac12d64a0e867d8a11e103d24b",
"to_name": null,
"type": null,
"value": {
"end": 1622,
"labels": [
"PREAMBLE"
],
"start": 1536,
"text": "Each injured eye-witness said that all 18\naccused persons were assaulting the injured."
}
},
{
"from_name": null,
"id": "036cbc5bd22e4daca0435c856640fc7f",
"to_name": null,
"type": null,
"value": {
"end": 1677,
"labels": [
"PREAMBLE"
],
"start": 1623,
"text": "I his was\nhardly consistent with the medical evidence."
}
},
{
"from_name": null,
"id": "a12281b1a90f44b2b1a7f7781b9d1a49",
"to_name": null,
"type": null,
"value": {
"end": 1852,
"labels": [
"PREAMBLE"
],
"start": 1677,
"text": "\n\n The Trial Court acquitted 11 accused giving them the\nbenefit of doubt and convicted 7 including the 4 appellants\nunder section 302 read with section 149.\n\n "
}
},
{
"from_name": null,
"id": "de48909e5ed04b58bac0931f9d65176f",
"to_name": null,
"type": null,
"value": {
"end": 1936,
"labels": [
"PREAMBLE"
],
"start": 1852,
"text": "The High Court gave the benefit of doubt to all the\naccused except the 4 appellants."
}
},
{
"from_name": null,
"id": "8113933d0c1d4ce5b978ddd5780d73ae",
"to_name": null,
"type": null,
"value": {
"end": 2168,
"labels": [
"PREAMBLE"
],
"start": 1937,
"text": "The High Court came to the\nconclusion that the 4 appellants had taken part in The\nattack in view of the admission of the 4 accused about their\nparticipating in the occurrence corroborated by the injuries\non the bodies of 3 of them."
}
},
{
"from_name": null,
"id": "f70568b7a38b4e37bbff20a161c2d2f6",
"to_name": null,
"type": null,
"value": {
"end": 2461,
"labels": [
"PREAMBLE"
],
"start": 2168,
"text": "\n\n On appeal by Special leave it was contended by the\nappellants that since 14 out of 18 accused persons were\nactually acquitted the Court must presume that total number\n\nof assailants was less than 5 and that they. therefore\ncannot be convicted under section t 49\n^\n\n HELD: 1."
}
},
{
"from_name": null,
"id": "62a8106faa544da28f960f5c77232cc0",
"to_name": null,
"type": null,
"value": {
"end": 2608,
"labels": [
"PREAMBLE"
],
"start": 2462,
"text": "It is true that the acquittal of an accused\nperson does raise in the eye of law, a presumption that he\nis innocent even if he was actually guilty."
}
},
{
"from_name": null,
"id": "8226ea9e515b4775bed33a0ec3d948de",
"to_name": null,
"type": null,
"value": {
"end": 2746,
"labels": [
"PREAMBLE"
],
"start": 2609,
"text": "but it is only\nthe acquitted accused person and not the convicted accused\nperson who can as a rule get the benefit of such a\npresumption."
}
},
{
"from_name": null,
"id": "95e231bca4554fa88490f99f3e969b39",
"to_name": null,
"type": null,
"value": {
"end": 2964,
"labels": [
"PREAMBLE"
],
"start": 2747,
"text": "The effect of findings on questions of fact\ndepends upon the nature of those findings 1 only five known\npersons are alleged to have participated in an attack; and\nthe counts find that 2 of them were falsely implicated"
}
},
{
"from_name": null,
"id": "e9a90c65127e4fcea7237d3d6cf77b49",
"to_name": null,
"type": null,
"value": {
"end": 3072,
"labels": [
"PREAMBLE"
],
"start": 2965,
"text": "it\nwould be quite natural and logical to infer or presume that\nthe participants were less than 5 in number."
}
},
{
"from_name": null,
"id": "8a2b25696da2401c9840449033a86b0f",
"to_name": null,
"type": null,
"value": {
"end": 3086,
"labels": [
"PREAMBLE"
],
"start": 3073,
"text": "On the other."
}
},
{
"from_name": null,
"id": "b37a8cbc157744159376dd2b599c46cc",
"to_name": null,
"type": null,
"value": {
"end": 3571,
"labels": [
"PREAMBLE"
],
"start": 3086,
"text": "\nhand if the court holds that the assailant were actually 5\nin number but there could be a doubt as to the identity of 2\nof the alleged assailants and therefore acquits 2 of them\nthe others will not get the benefit of douht. so long as\nthere is a firm finding based on good evidence and sound\nreasoning that the participants were 5 or more in number.\nSuch a ease is one of doubt only as to identity of some\nparticipants and not as to total number of participants.\n[594A-C]\n\n 2."
}
},
{
"from_name": null,
"id": "52942b9ffd204026bd766f03efd66fb3",
"to_name": null,
"type": null,
"value": {
"end": 3642,
"labels": [
"PREAMBLE"
],
"start": 3572,
"text": "It is true that there are some unfirmities in the\nprosecution evidence"
}
},
{
"from_name": null,
"id": "0972effa0fea4746a171d296e29873ec",
"to_name": null,
"type": null,
"value": {
"end": 3849,
"labels": [
"PREAMBLE"
],
"start": 3643,
"text": "However the impression of rustic\nwitnesses sought to he conveyed through their statements\ncannot be interpreted as though they were made in carefully\ndrawn up documents calling for a literal interpretation."
}
},
{
"from_name": null,
"id": "179f0c4e52c84e63949976b34affa20b",
"to_name": null,
"type": null,
"value": {
"end": 3869,
"labels": [
"PREAMBLE"
],
"start": 3850,
"text": "[592 H]\n 3."
}
},
{
"from_name": null,
"id": "a993737cdd1549c29405976995bc6fbf",
"to_name": null,
"type": null,
"value": {
"end": 4051,
"labels": [
"PREAMBLE"
],
"start": 3870,
"text": "The number and location of injuries on both sides\nalso indicate an attack by a group of persons which must\nhave surrounded the party of the deceased persons travelling\nin the Buggi."
}
},
{
"from_name": null,
"id": "399632258307404d8819d88b29a787c5",
"to_name": null,
"type": null,
"value": {
"end": 4173,
"labels": [
"PREAMBLE"
],
"start": 4052,
"text": "Even is 2 persons are engaged in stopping the\nBuggi and there are 2 on each side of the Buggi then the\nnumber would be 6."
}
},
{
"from_name": null,
"id": "1dcdf98ae2fd4d8593845b0ee1f763cb",
"to_name": null,
"type": null,
"value": {
"end": 4350,
"labels": [
"PREAMBLE"
],
"start": 4174,
"text": "Again, even if one person Is assumed to\nbe the assailant of each of the victims in a simultaneous\nattack upon them the number of such assailants alone would\ncome to at least 6."
}
},
{
"from_name": null,
"id": "357c2d51c35d48c6bf34fb1d6fa4dbe4",
"to_name": null,
"type": null,
"value": {
"end": 4413,
"labels": [
"PREAMBLE"
],
"start": 4351,
"text": "The deceased had injuries with sharp\nedged weapons and lathis."
}
},
{
"from_name": null,
"id": "81e919e5499f4832b6a59fbd6e63d880",
"to_name": null,
"type": null,
"value": {
"end": 4487,
"labels": [
"PREAMBLE"
],
"start": 4414,
"text": "It is therefore clear that each\none was attacked by more than one person."
}
},
{
"from_name": null,
"id": "3d87ec4d93234cf8b4e7d27c12eaf41e",
"to_name": null,
"type": null,
"value": {
"end": 4618,
"labels": [
"PREAMBLE"
],
"start": 4488,
"text": "These facts were\nenough to come to the conclusion that the total number of\nassailants could not conceivably have been less than 5."
}
},
{
"from_name": null,
"id": "56eda1a321f64146809043eb86413534",
"to_name": null,
"type": null,
"value": {
"end": 4641,
"labels": [
"PREAMBLE"
],
"start": 4619,
"text": "[593\nC-E]\n\n 4."
}
},
{
"from_name": null,
"id": "e3ba6cc39bfa459b85f43b7497c79e9e",
"to_name": null,
"type": null,
"value": {
"end": 4923,
"labels": [
"PREAMBLE"
],
"start": 4642,
"text": "Even if the number of assailants could have been\nless than 5 (which can the facts stated was really not\npossible) we think that the fact that the attacking party\nwas clearly shown to have waited for the Buggi to reach near\nthe field of Daryao in the early hours shows pre-planning."
}
},
{
"from_name": null,
"id": "175829fb41ae41f28128981f62ff3ce1",
"to_name": null,
"type": null,
"value": {
"end": 4971,
"labels": [
"PREAMBLE"
],
"start": 4923,
"text": "\nSome of the assailants had sharp edged weapons."
}
},
{
"from_name": null,
"id": "cb7582a3ad0c44258b50eea16cccc4bb",
"to_name": null,
"type": null,
"value": {
"end": 5030,
"labels": [
"PREAMBLE"
],
"start": 4972,
"text": "They were\nobviously lying in wait for the Buggi to arrive."
}
},
{
"from_name": null,
"id": "8be9a5dc536a4bd5acfed0ccd5ad51e8",
"to_name": null,
"type": null,
"value": {
"end": 5093,
"labels": [
"PREAMBLE"
],
"start": 5031,
"text": "A more\nconvincing evidence of a pre-concert was not necessary."
}
},
{
"from_name": null,
"id": "1b2b57f68c9f4ce9b5a285fe34094e3a",
"to_name": null,
"type": null,
"value": {
"end": 5116,
"labels": [
"PREAMBLE"
],
"start": 5093,
"text": "\nTherefor if necessary."
}
},
{
"from_name": null,
"id": "249d644c111d40ecb72c76c8e598cf59",
"to_name": null,
"type": null,
"value": {
"end": 5193,
"labels": [
"PREAMBLE"
],
"start": 5117,
"text": "we would not have hesitated to apply\nsection 31 of I.P.C. also to this case."
}
},
{
"from_name": null,
"id": "a270385a551a4eafbe552c4c55a161a9",
"to_name": null,
"type": null,
"value": {
"end": 5407,
"labels": [
"PREAMBLE"
],
"start": 5194,
"text": "The principle of\nvicarious liability does not depend upon the necessity to\nconvict the required number of persons but it depends upon\nproof of facts beyond reasonable doubt which makes such a\nprinciple applicable."
}
},
{
"from_name": null,
"id": "be35fe2e6e2f41eea4716f00e7f1e7b5",
"to_name": null,
"type": null,
"value": {
"end": 5647,
"labels": [
"PREAMBLE"
],
"start": 5408,
"text": "[594 F-H 595-A]\n\n Yeshwant & Anr. v. State of Maharashtra [1973] 1 S.C.R.\n291 It 302-303 at and Sukh Ram v. State of U.P. [1974] 2\nS.C.R. 518 distinguished.\n\n 5.The age of appellant Om Pal at the time of trial was\nIS years."
}
},
{
"from_name": null,
"id": "42075627de114e6d997b92b258eda0ff",
"to_name": null,
"type": null,
"value": {
"end": 5716,
"labels": [
"PREAMBLE"
],
"start": 5648,
"text": "Section 29 of the U.P. Children Act 1951 was\napplicable to the case."
}
},
{
"from_name": null,
"id": "e3c141e68a8c44a1800db076c7429e58",
"to_name": null,
"type": null,
"value": {
"end": 5801,
"labels": [
"PREAMBLE"
],
"start": 5717,
"text": "This question was not raised either\nbefore the Trial Court or before the High Court."
}
},
{
"from_name": null,
"id": "7f28f3b321f644a68f763c2153478fe5",
"to_name": null,
"type": null,
"value": {
"end": 5985,
"labels": [
"PREAMBLE"
],
"start": 5802,
"text": "Although Om\n\nPal accused was said to be armed with a lathi no specific\npart was assigned to him by the prosecution witnesses He\nmust have been misled by the bad example of his elders."
}
},
{
"from_name": null,
"id": "006f6ea7cbca4ecebb6505aad03e5d0b",
"to_name": null,
"type": null,
"value": {
"end": 6076,
"labels": [
"PREAMBLE"
],
"start": 5986,
"text": "No\nprevious participation in such a case and no previous\nconviction was shown against him."
}
},
{
"from_name": null,
"id": "34651bc24411449bb6f7932d21210e89",
"to_name": null,
"type": null,
"value": {
"end": 6211,
"labels": [
"PREAMBLE"
],
"start": 6077,
"text": "The appropriate ac(ion\nunder section 29 of the Children Act could have been taken\nin his case is the question had been raised in time."
}
},
{
"from_name": null,
"id": "7fe07711fed5418eb52c9b71ff7479f4",
"to_name": null,
"type": null,
"value": {
"end": 6311,
"labels": [
"PREAMBLE"
],
"start": 6212,
"text": "The\nCourt recommended the remission of the remaining period of\nOm Pal to the authorities concerned."
}
},
{
"from_name": null,
"id": "43a559315ffe48caae535c768feb3ff4",
"to_name": null,
"type": null,
"value": {
"end": 6328,
"labels": [
"PREAMBLE"
],
"start": 6312,
"text": "[548D H. 599A-C]"
}
},
{
"from_name": null,
"id": "ea7bb7f66515483ba02aef2fdf78a3f7",
"to_name": null,
"type": null,
"value": {
"end": 6339,
"labels": [
"PREAMBLE"
],
"start": 6328,
"text": "\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "fb7649e7d01b4b8387813c0fc68818ff",
"to_name": null,
"type": null,
"value": {
"end": 6381,
"labels": [
"NONE"
],
"start": 6339,
"text": "\n CRIMINAL APPELLATE JURISDICTION:"
}
},
{
"from_name": null,
"id": "2d33b0497dd449df9dda566388220afb",
"to_name": null,
"type": null,
"value": {
"end": 6401,
"labels": [
"NONE"
],
"start": 6382,
"text": "Criminal Appeal No."
}
},
{
"from_name": null,
"id": "44b8c0063f794217ba0673d2577833e0",
"to_name": null,
"type": null,
"value": {
"end": 6570,
"labels": [
"NONE"
],
"start": 6401,
"text": "\n 108 of 1971.\n Appeal by Special Leave from the Judgment and order dated the 20th November, 1970 of the Allahabad High Court in Criminal Appeal No. 495 of 1968."
}
},
{
"from_name": null,
"id": "dabc5c929a4949599ac02a0749d1cfcc",
"to_name": null,
"type": null,
"value": {
"end": 6631,
"labels": [
"NONE"
],
"start": 6570,
"text": "\n D. Mukherjee, U. K. Jha and U. P. Singh: for the Appellant."
}
},
{
"from_name": null,
"id": "9e35aa1b49c24a918976ea3691805c4e",
"to_name": null,
"type": null,
"value": {
"end": 6680,
"labels": [
"NONE"
],
"start": 6631,
"text": "\n D. P. Unival and o. P. Rana for the Respondent."
}
},
{
"from_name": null,
"id": "0c46387edf824cb48300f9e571fd9c6f",
"to_name": null,
"type": null,
"value": {
"end": 6738,
"labels": [
"NONE"
],
"start": 6680,
"text": "\n The Judgment of the Court was delivered by- BEG,"
}
},
{
"from_name": null,
"id": "d85a2e74a80f4f62a009715f7701f6ab",
"to_name": null,
"type": null,
"value": {
"end": 6790,
"labels": [
"FAC"
],
"start": 6739,
"text": "J.-The four appellants Daryao Singh, aged 46 years."
}
},
{
"from_name": null,
"id": "5bdbe2a0f2e04363b93729e4b2a85511",
"to_name": null,
"type": null,
"value": {
"end": 7170,
"labels": [
"FAC"
],
"start": 6791,
"text": "Birbal aged 50 years, Dharam Pal aged 29 years and Om Pal, aged 15 years, were tried, alongwith 14 others, for the offence of rioting in the course of which two murders were committed, on 7.6.1967, at about 6.30 a.m., on a path adjoining the field of the appellant Daryao Singh leading to village Parsoli from village Nirpura, in Police Station Doghat, in the District of Meerut."
}
},
{
"from_name": null,
"id": "a76af99657874cd3bd73f125f7bc3c98",
"to_name": null,
"type": null,
"value": {
"end": 7303,
"labels": [
"RLC"
],
"start": 7171,
"text": "The Trial Court acquitted eleven accused persons giving them the benefit of doubt and convicted seven including the four appellants."
}
},
{
"from_name": null,
"id": "64c66214f1004fedb6807722cdce993b",
"to_name": null,
"type": null,
"value": {
"end": 7658,
"labels": [
"RLC"
],
"start": 7304,
"text": "Each of the accused persons was charged and convicted under Section 302, read with Sections 149, Indian Penal Code and sentenced to life imprisonment, in addition to charges and convictions under Section 149/324 and 149/34 I.P.C. and either under Section 147 or Section 148 I.P.C. depending upon the weapon alleged to have been used by an accused person."
}
},
{
"from_name": null,
"id": "88e95b324cc1452e996f2a5818645168",
"to_name": null,
"type": null,
"value": {
"end": 7902,
"labels": [
"FAC"
],
"start": 7659,
"text": " The prosecution case revealed a long standing enmity between two groups of village Nirpura: one to which the appellants belonged and another to which Mukhtara and Raghubir, the murdered men, and the four other injured persons belonged."
}
},
{
"from_name": null,
"id": "1624aec911de4f9abc501eefb5e594ae",
"to_name": null,
"type": null,
"value": {
"end": 8068,
"labels": [
"FAC"
],
"start": 7903,
"text": "As is not unusual, the origin of the hostility between the two sides seems to have been a dispute over cultivable land between collaterals who had some joint Khatas."
}
},
{
"from_name": null,
"id": "3e84cae04f4045ed9be64f344861b6a3",
"to_name": null,
"type": null,
"value": {
"end": 8227,
"labels": [
"FAC"
],
"start": 8069,
"text": "Asa Ram, P.W. 1, claimed to be in separate possession of some plots with his two brothers, including Raghubira (murdered), and his uncle Mukhtara (murdered) ."
}
},
{
"from_name": null,
"id": "a44519d9c90642e6988571bd4e7df546",
"to_name": null,
"type": null,
"value": {
"end": 8357,
"labels": [
"FAC"
],
"start": 8228,
"text": "It was alleged by Asa Ram (P.W. 1) that Daryao Singh appellant wanted to take forcible possession of some land cultivated by him."
}
},
{
"from_name": null,
"id": "cfc516dd642a4180b20a937477eeb97c",
"to_name": null,
"type": null,
"value": {
"end": 8463,
"labels": [
"FAC"
],
"start": 8358,
"text": "Daryao Singh and others had already filed partition suit which was pending at the time of the occurrence."
}
},
{
"from_name": null,
"id": "87f5d569e1a54ce2854a2f3279484596",
"to_name": null,
"type": null,
"value": {
"end": 8625,
"labels": [
"FAC"
],
"start": 8464,
"text": "It appears that Hargyan, the father of the appellant Daryao, a first cousin of Mukhtara, the murdered man, had also been murdered in 1923 over a similar dispute."
}
},
{
"from_name": null,
"id": "294ba99a3bbb49bf8400a2197dd2b9e9",
"to_name": null,
"type": null,
"value": {
"end": 8757,
"labels": [
"FAC"
],
"start": 8626,
"text": "Asa Ram (P.W.1), and Raghubira (deceased), Bija (P.W. 10) and Asghar (P.W 4) had been convicted and sentenced to life imprisonment."
}
},
{
"from_name": null,
"id": "1b8eee7486254530bc7175a3f2cf6bef",
"to_name": null,
"type": null,
"value": {
"end": 8821,
"labels": [
"FAC"
],
"start": 8758,
"text": "They had been released on parole after five years' imprisonment"
}
},
{
"from_name": null,
"id": "13a9f74c41a24b99b90a9b981b7edb01",
"to_name": null,
"type": null,
"value": {
"end": 9163,
"labels": [
"FAC"
],
"start": 8822,
"text": "On the date of occurrence, Mukhtara, the murdered man, was said to be proceeding with Raghubir, who was also murdered, and Asa Ram, P.W.1, and Bija, P.W.10, all sitting in a buggi driven by Asghar, P.W.4, and Smt. Jahani, P.W.3, the wife of Asa Ram, P.W.1, was said to be following the buggi at a short distance with some food for the party."
}
},
{
"from_name": null,
"id": "ce748bc52594413eb3163e9355911403",
"to_name": null,
"type": null,
"value": {
"end": 9457,
"labels": [
"FAC"
],
"start": 9164,
"text": "When this buggi reached the field of Daryao Singh, where a number of persons, said to be eighteen altogether, whose names are mentioned in the First Information Report lodged at Police Station Doghat at a distance of three miles from village Nirpura at 8.30 a.m., were sitting on the boundary."
}
},
{
"from_name": null,
"id": "f4dda7d19ec34f859d82f5dcafaaf603",
"to_name": null,
"type": null,
"value": {
"end": 9624,
"labels": [
"FAC"
],
"start": 9458,
"text": "These persons are alleged to have surrounded the buggi and attacked its occupants with balams and lathies shouting that the whole party in the buggi should be killed."
}
},
{
"from_name": null,
"id": "9531a0bd66fa4906a0526c455715bed0",
"to_name": null,
"type": null,
"value": {
"end": 9719,
"labels": [
"FAC"
],
"start": 9625,
"text": "give occupants of the buggi, and, after that, Smt. Jahani, who soon joined them, were injured."
}
},
{
"from_name": null,
"id": "dfaf551649944fd9a3755b289dfab18f",
"to_name": null,
"type": null,
"value": {
"end": 9788,
"labels": [
"FAC"
],
"start": 9720,
"text": "Two of them, Mukhtara and Raghubir, died very soon after the attack."
}
},
{
"from_name": null,
"id": "a63c3c2f177d42729c0286b1784a73d0",
"to_name": null,
"type": null,
"value": {
"end": 9999,
"labels": [
"FAC"
],
"start": 9789,
"text": "It was alleged that Dharam Pal, Birbal and Daryao, appellants, and Nahar, Ajab Singh, and Ram Kishan, acquitted persons, were armed with balams, one Salek Chand was armed with a spade, and the rest with lathis."
}
},
{
"from_name": null,
"id": "336781f0f32e4486994feacb81022f9b",
"to_name": null,
"type": null,
"value": {
"end": 10110,
"labels": [
"FAC"
],
"start": 10000,
"text": "A number of witnesses are said to have arrived in response to the shout of the injured occupants of the buggi."
}
},
{
"from_name": null,
"id": "b47f2e403e364c2893dce660d427395d",
"to_name": null,
"type": null,
"value": {
"end": 10199,
"labels": [
"FAC"
],
"start": 10111,
"text": "The following injuries are shown to have been sustained by the victims of the attack: 1."
}
},
{
"from_name": null,
"id": "e986febb97634444bdf1ace087f384f6",
"to_name": null,
"type": null,
"value": {
"end": 10252,
"labels": [
"FAC"
],
"start": 10200,
"text": "MUKHTARA: \"1. Vertical abrasion, 1 1/2 in. x 1/2 in."
}
},
{
"from_name": null,
"id": "f166855dd04b4ceca58c4da00a7bd6fe",
"to_name": null,
"type": null,
"value": {
"end": 10313,
"labels": [
"FAC"
],
"start": 10253,
"text": "On the head, 4 in. above the middle of the left eye- brow 2."
}
},
{
"from_name": null,
"id": "6875de6814874c45ae3a62e6a6e7fbde",
"to_name": null,
"type": null,
"value": {
"end": 10352,
"labels": [
"FAC"
],
"start": 10314,
"text": "Transverse abrasion, 1 3/4 in.x3/4 in."
}
},
{
"from_name": null,
"id": "931a8b5b33964074b273671f82a19e00",
"to_name": null,
"type": null,
"value": {
"end": 10397,
"labels": [
"FAC"
],
"start": 10353,
"text": "On the head, 5 in. above the right eye-brow."
}
},
{
"from_name": null,
"id": "6d39f5916b56472a898b78f5ada84992",
"to_name": null,
"type": null,
"value": {
"end": 10446,
"labels": [
"FAC"
],
"start": 10416,
"text": "3. Round swelling\" 2 in.x2 in."
}
},
{
"from_name": null,
"id": "782fba189b524f41b87b3520d5e519cb",
"to_name": null,
"type": null,
"value": {
"end": 10485,
"labels": [
"FAC"
],
"start": 10447,
"text": "On the right side of the head, 1/2 in."
}
},
{
"from_name": null,
"id": "5b943d916196468d9de0bd2c2f218645",
"to_name": null,
"type": null,
"value": {
"end": 10543,
"labels": [
"FAC"
],
"start": 10486,
"text": "above the ear, there was a depressed fracture 2 in.x2 in."
}
},
{
"from_name": null,
"id": "ee5ea411430f46e48013110a1eff6665",
"to_name": null,
"type": null,
"value": {
"end": 10567,
"labels": [
"FAC"
],
"start": 10544,
"text": "underneath on the bone."
}
},
{
"from_name": null,
"id": "212f3d0991a6493288525d800068ca11",
"to_name": null,
"type": null,
"value": {
"end": 10730,
"labels": [
"FAC"
],
"start": 10586,
"text": "4. Transverse incised wound 1 1/2in.x1/2 in.xboneand brain deep on the head 1 in.\n behind the middle of the right car."
}
},
{
"from_name": null,
"id": "9d03e1acba854370b9a994e935a916fd",
"to_name": null,
"type": null,
"value": {
"end": 10772,
"labels": [
"FAC"
],
"start": 10731,
"text": "Brain matter was coming out of the wound."
}
},
{
"from_name": null,
"id": "8d903f5159304c49b6f7cb9fc2fb4b83",
"to_name": null,
"type": null,
"value": {
"end": 10907,
"labels": [
"FAC"
],
"start": 10790,
"text": "5. Transverse incised wound 1 1/4in.x 1/2 in. x bone deep on the A head 3 in. behind the upper part of the right car."
}
},
{
"from_name": null,
"id": "f1df174a61294af59979097794fd1b3a",
"to_name": null,
"type": null,
"value": {
"end": 11023,
"labels": [
"FAC"
],
"start": 10908,
"text": "The margins of injuries Nos. 4 and 5 were clear cut, smooth and well defined and angles on both the end were acute."
}
},
{
"from_name": null,
"id": "bebb6c91d3244c6098db39db4835ecf1",
"to_name": null,
"type": null,
"value": {
"end": 11072,
"labels": [
"FAC"
],
"start": 11042,
"text": "6. Round blue mark 2 in.x2 in."
}
},
{
"from_name": null,
"id": "65636822c3b548d9aae940e10cb87150",
"to_name": null,
"type": null,
"value": {
"end": 11103,
"labels": [
"FAC"
],
"start": 11073,
"text": "On the right shoulder portion."
}
},
{
"from_name": null,
"id": "93852ce08fde45fbaeabc2a108c9327d",
"to_name": null,
"type": null,
"value": {
"end": 11141,
"labels": [
"FAC"
],
"start": 11104,
"text": "There was swelling all over the head."
}
},
{
"from_name": null,
"id": "6163301da84945e99261850fa234b327",
"to_name": null,
"type": null,
"value": {
"end": 11213,
"labels": [
"FAC"
],
"start": 11142,
"text": "There was no reference of injuries Nos. 1 and 6 in the inquest report ."
}
},
{
"from_name": null,
"id": "b52eb7c48ea34f26aa371981ba10eb11",
"to_name": null,
"type": null,
"value": {
"end": 11234,
"labels": [
"FAC"
],
"start": 11213,
"text": "\n 2."
}
},
{
"from_name": null,
"id": "0d1d37996ccb4215a199adef34bc3207",
"to_name": null,
"type": null,
"value": {
"end": 11247,
"labels": [
"FAC"
],
"start": 11235,
"text": "RAGHUBIRA 1."
}
},
{
"from_name": null,
"id": "2053cfefdb434b0b8a1a5dce5a807ae1",
"to_name": null,
"type": null,
"value": {
"end": 11280,
"labels": [
"FAC"
],
"start": 11248,
"text": "Transverse abrasion 1/4 in.x1/2."
}
},
{
"from_name": null,
"id": "e61d920b7dc6464fb501749b909dbca1",
"to_name": null,
"type": null,
"value": {
"end": 11310,
"labels": [
"FAC"
],
"start": 11281,
"text": "On the left ankle inner side."
}
},
{
"from_name": null,
"id": "1dedf37267f54f67808b09fe4067773e",
"to_name": null,
"type": null,
"value": {
"end": 11404,
"labels": [
"FAC"
],
"start": 11329,
"text": "2. Vertical punctured wound in.x1/3 in.x1/4 in.\n "
}
},
{
"from_name": null,
"id": "510e38528e3d4e2b9d6d2f92bf56848e",
"to_name": null,
"type": null,
"value": {
"end": 11455,
"labels": [
"FAC"
],
"start": 11404,
"text": "On the back side, of the elbow, margins, clean cut."
}
},
{
"from_name": null,
"id": "417c580a48ff4bc09f9f4bb012b947b8",
"to_name": null,
"type": null,
"value": {
"end": 11502,
"labels": [
"FAC"
],
"start": 11456,
"text": "smooth and wall defined and angles were acute."
}
},
{
"from_name": null,
"id": "8aa3aceeb9a7411eada0a14ae7003292",
"to_name": null,
"type": null,
"value": {
"end": 11629,
"labels": [
"FAC"
],
"start": 11521,
"text": "3. Transverse lacerated wound on the head, 1 1/2 in. x 2 in. bone deep on the right side 3 in above the car."
}
},
{
"from_name": null,
"id": "1b0765354872444fbbcef352c35cf484",
"to_name": null,
"type": null,
"value": {
"end": 11769,
"labels": [
"FAC"
],
"start": 11648,
"text": "4. Round wound on the head 4 1/2 in. above the middle of the right eye-brow with margins clean cut\".\n 3."
}
},
{
"from_name": null,
"id": "164450234f744f299fbb6dcfba302f0c",
"to_name": null,
"type": null,
"value": {
"end": 11776,
"labels": [
"FAC"
],
"start": 11770,
"text": "ASA 1."
}
},
{
"from_name": null,
"id": "60d07e6ab45647469c50380c5adaebb0",
"to_name": null,
"type": null,
"value": {
"end": 11816,
"labels": [
"FAC"
],
"start": 11777,
"text": "Punctured wound 1/2 in.x1/4 in.x1/4 in."
}
},
{
"from_name": null,
"id": "247b623c617245be83c49c8fafad8788",
"to_name": null,
"type": null,
"value": {
"end": 11884,
"labels": [
"FAC"
],
"start": 11817,
"text": "On the left side of the chest with abrasions on the margins, 64 in."
}
},
{
"from_name": null,
"id": "0a0599dfa7294a55ba619e50f40a6463",
"to_name": null,
"type": null,
"value": {
"end": 11900,
"labels": [
"FAC"
],
"start": 11885,
"text": "below the axile"
}
},
{
"from_name": null,
"id": "632274e0ea1f4f5b93f1a329fed9abf5",
"to_name": null,
"type": null,
"value": {
"end": 11947,
"labels": [
"FAC"
],
"start": 11900,
"text": ".\n 2. Abrasion 1/2 in.x1/4 in."
}
},
{
"from_name": null,
"id": "227381fee906460ea1a7d0b6d1e700cb",
"to_name": null,
"type": null,
"value": {
"end": 11969,
"labels": [
"FAC"
],
"start": 11948,
"text": "On the left shoulder."
}
},
{
"from_name": null,
"id": "b7444a47203e43a6bc2e475a80ad8111",
"to_name": null,
"type": null,
"value": {
"end": 12106,
"labels": [
"FAC"
],
"start": 11969,
"text": "\n 3. Abrasion 1/2 in.x1/4 in. oblique, on the right side of the chest extending towards right shoulder from epigastrium."
}
},
{
"from_name": null,
"id": "9fb2241fbc9644a29d5911bb23702e57",
"to_name": null,
"type": null,
"value": {
"end": 12135,
"labels": [
"FAC"
],
"start": 12108,
"text": "4. Abrasion 1/4 in.x1/8 in."
}
},
{
"from_name": null,
"id": "476ac72c52f24de1a777d2c325b1ef4f",
"to_name": null,
"type": null,
"value": {
"end": 12193,
"labels": [
"FAC"
],
"start": 12136,
"text": "On the inner side of the left hand I in. above the wrist."
}
},
{
"from_name": null,
"id": "9d58cd1577e143d1a46260bb828eb20a",
"to_name": null,
"type": null,
"value": {
"end": 12221,
"labels": [
"FAC"
],
"start": 12195,
"text": "5. Abrasion 1/4in.x1/6 in."
}
},
{
"from_name": null,
"id": "45d3c7e9da0e486ab015592977b83bf8",
"to_name": null,
"type": null,
"value": {
"end": 12254,
"labels": [
"FAC"
],
"start": 12222,
"text": "On the right arm back side 3 in."
}
},
{
"from_name": null,
"id": "a26906660bca4e1d9d3f50d749200925",
"to_name": null,
"type": null,
"value": {
"end": 12271,
"labels": [
"FAC"
],
"start": 12255,
"text": "above the elbow."
}
},
{
"from_name": null,
"id": "00a822f16e994683a5082eeb42180a38",
"to_name": null,
"type": null,
"value": {
"end": 12301,
"labels": [
"FAC"
],
"start": 12273,
"text": "6. Contusion 3/4 in.x1/2 in."
}
},
{
"from_name": null,
"id": "6721c47e2e584699aab054c5d314a6b9",
"to_name": null,
"type": null,
"value": {
"end": 12360,
"labels": [
"FAC"
],
"start": 12302,
"text": "On the right side 3 in. below the edge of the iliac crest."
}
},
{
"from_name": null,
"id": "84a31813778645ceb097248b865f46da",
"to_name": null,
"type": null,
"value": {
"end": 12395,
"labels": [
"FAC"
],
"start": 12362,
"text": "7. Incised wound 1/2 in.x1/10 in."
}
},
{
"from_name": null,
"id": "7c482f79325b4dc59db3e1fbc1979e78",
"to_name": null,
"type": null,
"value": {
"end": 12415,
"labels": [
"FAC"
],
"start": 12396,
"text": "x skin deep 1/2 in."
}
},
{
"from_name": null,
"id": "4fe44ea4c7d94427b2e92fa4e5585e27",
"to_name": null,
"type": null,
"value": {
"end": 12436,
"labels": [
"FAC"
],
"start": 12416,
"text": "below the left eye.\""
}
},
{
"from_name": null,
"id": "bc5330855f95467da50786961543440e",
"to_name": null,
"type": null,
"value": {
"end": 12445,
"labels": [
"FAC"
],
"start": 12438,
"text": "4. SMT."
}
},
{
"from_name": null,
"id": "ef5bc670e7f743b39544774cfe94d7d8",
"to_name": null,
"type": null,
"value": {
"end": 12453,
"labels": [
"FAC"
],
"start": 12446,
"text": "JAHANI:"
}
},
{
"from_name": null,
"id": "76802724a78a4519b61d4bd84c84862a",
"to_name": null,
"type": null,
"value": {
"end": 12555,
"labels": [
"FAC"
],
"start": 12454,
"text": "1. Lacerated wound 1 1/3 in. x 1/2 in. bone deep from front to backward 3 1/2 in. above the left ear."
}
},
{
"from_name": null,
"id": "7e626366acfd4cb3a9f64a9f8cbd85e1",
"to_name": null,
"type": null,
"value": {
"end": 12602,
"labels": [
"FAC"
],
"start": 12574,
"text": "2. Contusion 4 1/4 in.x1 in."
}
},
{
"from_name": null,
"id": "53549528f6984537b468da7e274cb894",
"to_name": null,
"type": null,
"value": {
"end": 12631,
"labels": [
"FAC"
],
"start": 12603,
"text": "On the left scapular region."
}
},
{
"from_name": null,
"id": "eeb78d6ed6b548d9878c40d38d0bf457",
"to_name": null,
"type": null,
"value": {
"end": 12661,
"labels": [
"FAC"
],
"start": 12632,
"text": "2 1/2 in. below the shoulder."
}
},
{
"from_name": null,
"id": "cd4cccb1d12b4927ac5cae123d6c1329",
"to_name": null,
"type": null,
"value": {
"end": 12788,
"labels": [
"FAC"
],
"start": 12680,
"text": "3. Contusion 1 1/2 in.x1/4 in. parallel to the earth extending from the upper and inner end of injury No. 2."
}
},
{
"from_name": null,
"id": "8b1044b6cf5245b3bd33a433fb49fda5",
"to_name": null,
"type": null,
"value": {
"end": 12904,
"labels": [
"FAC"
],
"start": 12789,
"text": "These injuries were simple and had been caused by some blunt weapon, like lathi and were about 6 hours old (fresh)."
}
},
{
"from_name": null,
"id": "342f544533f7484ab8ec802234536146",
"to_name": null,
"type": null,
"value": {
"end": 13002,
"labels": [
"FAC"
],
"start": 12905,
"text": "I had prepared the injury report Ex.\n Ka 16 at the time of examination."
}
},
{
"from_name": null,
"id": "e231c5ebee594fbaba086a24796c92d0",
"to_name": null,
"type": null,
"value": {
"end": 13069,
"labels": [
"FAC"
],
"start": 13003,
"text": "It bears my signature and is correct.\" 5. ASGHAR:"
}
},
{
"from_name": null,
"id": "cadcddcf7ea646b0ba7390189f73cdef",
"to_name": null,
"type": null,
"value": {
"end": 13136,
"labels": [
"FAC"
],
"start": 13070,
"text": "1. Contusion 2 in.x1/4 in.x1/4 in. going from front to back 31 in."
}
},
{
"from_name": null,
"id": "8fa0a4c38c504d59b895b44e8a78bfb3",
"to_name": null,
"type": null,
"value": {
"end": 13152,
"labels": [
"FAC"
],
"start": 13137,
"text": "above the nose."
}
},
{
"from_name": null,
"id": "ac1d07e2d9fd41af8bca900872889d82",
"to_name": null,
"type": null,
"value": {
"end": 13209,
"labels": [
"FAC"
],
"start": 13171,
"text": "2. Punctured wound 1 in.x ' in.x-4 in."
}
},
{
"from_name": null,
"id": "d16540b1509d4949b089fbbd23696162",
"to_name": null,
"type": null,
"value": {
"end": 13261,
"labels": [
"FAC"
],
"start": 13210,
"text": "On the left hand, outer side 2 in. below the elbow."
}
},
{
"from_name": null,
"id": "d4b62a5a088a4e538073679524c0c0aa",
"to_name": null,
"type": null,
"value": {
"end": 13298,
"labels": [
"FAC"
],
"start": 13280,
"text": "6. BIJAI SINGH: 1."
}
},
{
"from_name": null,
"id": "591dad8b01874eadbd33cf2cb04e6e03",
"to_name": null,
"type": null,
"value": {
"end": 13487,
"labels": [
"FAC"
],
"start": 13299,
"text": "Contused wound 1/2 in.x1/2 in. x skin deep at the part above the nail of the thumb of right hand with contusion 1 1/4 in. x1/2 in.\n in the inner part of the nail."
}
},
{
"from_name": null,
"id": "a083ae573f8347889b6f7ee6d8a27aeb",
"to_name": null,
"type": null,
"value": {
"end": 13536,
"labels": [
"FAC"
],
"start": 13487,
"text": "\n 2. Contusion 2 1/4 in.x3/4 in."
}
},
{
"from_name": null,
"id": "165ec75dffba4686b2c4e6b007c1c994",
"to_name": null,
"type": null,
"value": {
"end": 13667,
"labels": [
"FAC"
],
"start": 13537,
"text": "extending from the palm on the 1st and 2nd knuckles whereblood had clotted in an area of 1/2 in.\n x1/4 ."
}
},
{
"from_name": null,
"id": "af34fcc27f8b41999c8b22b46aae3796",
"to_name": null,
"type": null,
"value": {
"end": 13733,
"labels": [
"FAC"
],
"start": 13668,
"text": "On the palmer side.\n 3. Abrasion 1/2 in.x1/4 in."
}
},
{
"from_name": null,
"id": "775e0d47cf9a4263b09ab0c8557458a3",
"to_name": null,
"type": null,
"value": {
"end": 13804,
"labels": [
"FAC"
],
"start": 13734,
"text": "On the back and anterior side of right hand, 3 1/2 in. above the wrist"
}
},
{
"from_name": null,
"id": "c99515a9f8014f62ae9fafb5e6eb3a1c",
"to_name": null,
"type": null,
"value": {
"end": 13876,
"labels": [
"FAC"
],
"start": 13804,
"text": ".\"\n Injuries were found on the side of the accused on 3 appellants only."
}
},
{
"from_name": null,
"id": "f5237f9412814f38987793ec77ba8a56",
"to_name": null,
"type": null,
"value": {
"end": 14048,
"labels": [
"FAC"
],
"start": 13877,
"text": "They were as follows: (1) OM PAL: 1. Lacerated wound 1/2 in.x4/10 in.x2/10 in. on the inner side of left forearm 3 1/2 in.\n above the left wrist."
}
},
{
"from_name": null,
"id": "4c570a8f98b34c63aa78d742fbb631db",
"to_name": null,
"type": null,
"value": {
"end": 14112,
"labels": [
"FAC"
],
"start": 14048,
"text": "\n 2. Lacerated wound 2/10 in.x2/10 in.x6/10 in."
}
},
{
"from_name": null,
"id": "5d272d732983491484fdb04f0b41cee3",
"to_name": null,
"type": null,
"value": {
"end": 14196,
"labels": [
"FAC"
],
"start": 14113,
"text": "On the inner side of left forearm.\n 3. Abrasion 3/10 in.X21 10 in."
}
},
{
"from_name": null,
"id": "b74366c7f536452dbbdd2510d2f4d49a",
"to_name": null,
"type": null,
"value": {
"end": 14287,
"labels": [
"FAC"
],
"start": 14197,
"text": "On the upper r side of left forearm, 3 1/2 in. above the left wrist.\"\n 2."
}
},
{
"from_name": null,
"id": "3d45e96bc136416d88b5fe7b8c41ddb5",
"to_name": null,
"type": null,
"value": {
"end": 14377,
"labels": [
"FAC"
],
"start": 14288,
"text": "DARYAO: \"1. Abrasion in.x3/10 in on the left shoulder in front side.\n 2."
}
},
{
"from_name": null,
"id": "1bac84fedc9b42ea86d744401b98f76d",
"to_name": null,
"type": null,
"value": {
"end": 14411,
"labels": [
"FAC"
],
"start": 14378,
"text": "Wound with scab 4/10 in.x2/10 in."
}
},
{
"from_name": null,
"id": "1e2925c87621471ca10eef54544a52b2",
"to_name": null,
"type": null,
"value": {
"end": 14489,
"labels": [
"FAC"
],
"start": 14412,
"text": "On the left are outer side, 6 in. below left shoulder\".\n 3 ."
}
},
{
"from_name": null,
"id": "c3a2b7ef2d474123925775c031828a57",
"to_name": null,
"type": null,
"value": {
"end": 14500,
"labels": [
"FAC"
],
"start": 14490,
"text": "BIRBAL: 1."
}
},
{
"from_name": null,
"id": "d3a9e22069d74adcb8bce2b7aa75b01e",
"to_name": null,
"type": null,
"value": {
"end": 14570,
"labels": [
"FAC"
],
"start": 14501,
"text": "Lacerated wound 2 in.x3/10 in. bone deep on the front , side of head."
}
},
{
"from_name": null,
"id": "f5247fa72ec447549b5acef8ad261617",
"to_name": null,
"type": null,
"value": {
"end": 14624,
"labels": [
"FAC"
],
"start": 14570,
"text": "\n 2. Abrased contusion 1 in.x2/10 in."
}
},
{
"from_name": null,
"id": "9ea3edf034cc42c988576c20bf892d2d",
"to_name": null,
"type": null,
"value": {
"end": 14676,
"labels": [
"FAC"
],
"start": 14625,
"text": "On the left side of head, 3 in. above the left ear."
}
},
{
"from_name": null,
"id": "f946df75ccd74fa194d99934ed5232c1",
"to_name": null,
"type": null,
"value": {
"end": 14724,
"labels": [
"FAC"
],
"start": 14695,
"text": "3. Contusion 1/2 in.x4/10 in."
}
},
{
"from_name": null,
"id": "0906f1391c1c4164b244420d67cb89eb",
"to_name": null,
"type": null,
"value": {
"end": 14778,
"labels": [
"FAC"
],
"start": 14725,
"text": "On the right side of head, 2 in. above the right ear."
}
},
{
"from_name": null,
"id": "7c4b045325ec430f9462969d744ce68c",
"to_name": null,
"type": null,
"value": {
"end": 14807,
"labels": [
"FAC"
],
"start": 14780,
"text": "4. Abrasion 1/4 in.x1/4 in."
}
},
{
"from_name": null,
"id": "84c6cb35fc544f9d8a9308d35040e8e2",
"to_name": null,
"type": null,
"value": {
"end": 14878,
"labels": [
"FAC"
],
"start": 14808,
"text": "On the index finger of the right hand upper side on the middle phalux."
}
},
{
"from_name": null,
"id": "7e6c2f9225974924a7bc3c0d76c4c5a7",
"to_name": null,
"type": null,
"value": {
"end": 14907,
"labels": [
"FAC"
],
"start": 14880,
"text": "5. Abrasion 1/4 in.x1/4 in."
}
},
{
"from_name": null,
"id": "c70c8c5eb4a342869b984fefdfcc5cd0",
"to_name": null,
"type": null,
"value": {
"end": 14973,
"labels": [
"FAC"
],
"start": 14908,
"text": "On the upper side at the root of the middle finger of right hand."
}
},
{
"from_name": null,
"id": "c3e88fdef5324abfa01a2e089e788db1",
"to_name": null,
"type": null,
"value": {
"end": 15003,
"labels": [
"FAC"
],
"start": 14975,
"text": "6. Abrasion 1/2 in.x1/10 in."
}
},
{
"from_name": null,
"id": "a4277f746d4842648eb6f9f2a835b2c3",
"to_name": null,
"type": null,
"value": {
"end": 15110,
"labels": [
"FAC"
],
"start": 15004,
"text": "On the inner side of the lower portion of left fore-arm, 3 in.\n above the wrist."
}
},
{
"from_name": null,
"id": "c28582a36a9d46b2b0a69bb93e5548ef",
"to_name": null,
"type": null,
"value": {
"end": 15141,
"labels": [
"FAC"
],
"start": 15112,
"text": "7. Abrasion 3/10 in.x1/10 in."
}
},
{
"from_name": null,
"id": "64040efb1da0435fb1687d89e729d3ac",
"to_name": null,
"type": null,
"value": {
"end": 15174,
"labels": [
"FAC"
],
"start": 15142,
"text": "On the inner side of left wrist."
}
},
{
"from_name": null,
"id": "90fb68cb3ad5456d9633d7fee1f80779",
"to_name": null,
"type": null,
"value": {
"end": 15238,
"labels": [
"FAC"
],
"start": 15193,
"text": "8. Lacerated wound 3/10 in.x1/10 in.x3/10 in."
}
},
{
"from_name": null,
"id": "33a5096b9fcf42efbfa7c834237321d7",
"to_name": null,
"type": null,
"value": {
"end": 15277,
"labels": [
"FAC"
],
"start": 15239,
"text": "an the A right at a distance of 31 in."
}
},
{
"from_name": null,
"id": "0dfac399b61b4d8b85ed68828ecb1a96",
"to_name": null,
"type": null,
"value": {
"end": 15322,
"labels": [
"FAC"
],
"start": 15278,
"text": "from side of thigh, anterior iliac spine\".\n "
}
},
{
"from_name": null,
"id": "522d18a7a68d4f98afb470337756b4c1",
"to_name": null,
"type": null,
"value": {
"end": 15671,
"labels": [
"ANALYSIS"
],
"start": 15322,
"text": "It is significant that in answer to the last question put to Daryao Singh, appellant, in the Committing Magistrate's Court, under Section 342 Criminal Procedure Code, whether he had nothing else to say, the first thing that came to his mind was that Asa Ram P.W.1, and Bijai, P.W. 10 and Raghubir (deceased) had killed his father about 15 years ago."
}
},
{
"from_name": null,
"id": "6eaa87b4eec5415b85debde1a87e4b0b",
"to_name": null,
"type": null,
"value": {
"end": 15710,
"labels": [
"ANALYSIS"
],
"start": 15671,
"text": "\n The defense case seemed quite absurd."
}
},
{
"from_name": null,
"id": "37327c20b4734e6d9572af4b2c29b9a3",
"to_name": null,
"type": null,
"value": {
"end": 15897,
"labels": [
"ANALYSIS"
],
"start": 15711,
"text": "It was that, Asa Ram and Bijai and Asghar, after having killed Mukhtara and Raghubir, haul come and attacked the three injured appellants at the time and place given by the, prosecution."
}
},
{
"from_name": null,
"id": "78f595c4f62343b4b98881ae0ba5074b",
"to_name": null,
"type": null,
"value": {
"end": 16212,
"labels": [
"ANALYSIS"
],
"start": 15897,
"text": "\nTheir defense witness, however, in an obvious attempt to explain the injuries of the three appellants, put forward the entirely new version that, when Asa, Bijai, and Asghar, were killing Mukhtara and Raghubir, the three injuries appellants had attempted to save the murdered men and were injured as a consequence."
}
},
{
"from_name": null,
"id": "70e996fb78754bec8d05be4a3d1dea90",
"to_name": null,
"type": null,
"value": {
"end": 16282,
"labels": [
"ANALYSIS"
],
"start": 16213,
"text": "The accused had even filed a First Information Report on these lines."
}
},
{
"from_name": null,
"id": "57b37b53ed9e438a968c02793e9223c6",
"to_name": null,
"type": null,
"value": {
"end": 16520,
"labels": [
"ANALYSIS"
],
"start": 16283,
"text": "They unsuccessfully tried to prosecute Asa and Bijai and Asghar who could not, as the Trial Court and the High Court had rightly observed, be expected to run berserk suddenly and attack persons on their own side for no explicable reason."
}
},
{
"from_name": null,
"id": "34ebfd84bb294ef59fee5b6b64b10a6b",
"to_name": null,
"type": null,
"value": {
"end": 16972,
"labels": [
"ANALYSIS"
],
"start": 16520,
"text": "\n The prosecution had, in addition to examining injured witnesses, mentioned above, produced Rattan Singh P.W.2, Kalu, P.W.9, and Lakhi, P.W.7, whose testimony was discarded by it on two grounds: firstly, because each one was shown to have some enmity with some accused person; and, secondly, because they were said to have been standing at a Harat nearly 400 paces away from where` according to the High Court, they could not have seen the occurrence."
}
},
{
"from_name": null,
"id": "32504c1e3d474877a756c68c929e3266",
"to_name": null,
"type": null,
"value": {
"end": 17164,
"labels": [
"ANALYSIS"
],
"start": 16973,
"text": "If there was no obstruction to the range, of vision, and none was shown by evidence, these witnesses could at least make out the number of assailants from this distance as sunlight was there."
}
},
{
"from_name": null,
"id": "eefa28271e3e497faa75ebd8138c646b",
"to_name": null,
"type": null,
"value": {
"end": 17236,
"labels": [
"ANALYSIS"
],
"start": 17164,
"text": "\n The prosecution evidence suffered from some quite obvious infirmities."
}
},
{
"from_name": null,
"id": "6595c44b4fb9428cb032b7985bf31ea4",
"to_name": null,
"type": null,
"value": {
"end": 17474,
"labels": [
"ANALYSIS"
],
"start": 17237,
"text": "Each of the four injured eye witnesses, while naming each of the eighteen accused persons as participants in the occurrence and specifying their weapons, without any contradiction, had failed to assign any particular part to any of them."
}
},
{
"from_name": null,
"id": "4d85fcce43104a43af3d3385821dcc04",
"to_name": null,
"type": null,
"value": {
"end": 17607,
"labels": [
"ANALYSIS"
],
"start": 17475,
"text": "Each injured witness said that all the eighteen accused persons, named in the First information Report, were assaulting the injured."
}
},
{
"from_name": null,
"id": "4cc291e4a74e4dae9279326552583fde",
"to_name": null,
"type": null,
"value": {
"end": 17736,
"labels": [
"ANALYSIS"
],
"start": 17608,
"text": "This was hardly consistent with either the medical evidence or the very short time the whole occurrence was said to have lasted."
}
},
{
"from_name": null,
"id": "4196273881e448d79a64a18b3f1c1cd4",
"to_name": null,
"type": null,
"value": {
"end": 17853,
"labels": [
"ANALYSIS"
],
"start": 17737,
"text": "It was physically impossible for all the eighteen accused persons to attack simultaneously each of the five victims."
}
},
{
"from_name": null,
"id": "f896a5fedc094db0b65722a7cba884c5",
"to_name": null,
"type": null,
"value": {
"end": 18062,
"labels": [
"ANALYSIS"
],
"start": 17854,
"text": "However, we cannot interpret the impressions of rustic witnesses, sought to be conveyed through their statements` as though they were made in carefully drawn up documents calling for a literal interpretation."
}
},
{
"from_name": null,
"id": "b7092d452ac048a5a1f8cf9267c12232",
"to_name": null,
"type": null,
"value": {
"end": 18299,
"labels": [
"ANALYSIS"
],
"start": 18063,
"text": "It was likely that each of them had seen some acts of some assailants, but, due to natural discrepancies in their accounts, as each could only depose the part he had observed, each had been instructed to omit this part of his testimony."
}
},
{
"from_name": null,
"id": "ba75411f6164498fa61426364440842c",
"to_name": null,
"type": null,
"value": {
"end": 18479,
"labels": [
"ANALYSIS"
],
"start": 18300,
"text": "That may explain how each consistently stated that all the accused persons were attackinghis or her party although he or she could not specify which accused attacked which victim."
}
},
{
"from_name": null,
"id": "85e9391a186f459cb720d39ba3554f2f",
"to_name": null,
"type": null,
"value": {
"end": 18717,
"labels": [
"ANALYSIS"
],
"start": 18480,
"text": "From the manner in which each witness could, without making any mistake, name each of the eighteen accused persons, almost in the same order, and specify the weapon each carried, without any discrepancy, some tutoring could be suspected."
}
},
{
"from_name": null,
"id": "bc576f66bb32424f95d90ba85f1fa7be",
"to_name": null,
"type": null,
"value": {
"end": 18873,
"labels": [
"ANALYSIS"
],
"start": 18718,
"text": "Nevertheless, both the Trial Court and the High Court had reached the definite conclusion that the party of assailants consisted of more than five persons."
}
},
{
"from_name": null,
"id": "67d48ad2c52e49e5879593fbc9205e20",
"to_name": null,
"type": null,
"value": {
"end": 19109,
"labels": [
"ANALYSIS"
],
"start": 18874,
"text": "It also found that this party was sitting on the boundary of the field of Daryao, apparently waiting with their weapons for the buggi, carrying Raghubir and Mukhtara and others., to reach the spot where they surrounded it and attacked."
}
},
{
"from_name": null,
"id": "88bdbcef1bf3484797b8a52e182ad7b8",
"to_name": null,
"type": null,
"value": {
"end": 19338,
"labels": [
"ANALYSIS"
],
"start": 19110,
"text": "It was clear, from the nature and number of injuries of both sides, which we have set out above in extenso, that the attacking party must have consisted of more persons than the party of the male victims who were five in number."
}
},
{
"from_name": null,
"id": "7ebb16d1cdf441be8a626de56670851b",
"to_name": null,
"type": null,
"value": {
"end": 19423,
"labels": [
"ANALYSIS"
],
"start": 19339,
"text": "Even if these five victims were sitting in the buggi they were not all empty handed."
}
},
{
"from_name": null,
"id": "7d7e7818312045ddb9a0f25486a56075",
"to_name": null,
"type": null,
"value": {
"end": 19481,
"labels": [
"ANALYSIS"
],
"start": 19424,
"text": "Some of them had lathis which they plied in self defence."
}
},
{
"from_name": null,
"id": "67c12c8dd8664e5bb52f1ff5e7ad8c62",
"to_name": null,
"type": null,
"value": {
"end": 19639,
"labels": [
"ANALYSIS"
],
"start": 19482,
"text": "The number and location of injuries on both sides also indicated an attack by a group of persons which must have surrounded the party traveling in the buggi."
}
},
{
"from_name": null,
"id": "aceddc5e7c9547b3b944eb1ab45813ff",
"to_name": null,
"type": null,
"value": {
"end": 19776,
"labels": [
"ANALYSIS"
],
"start": 19640,
"text": "Even if two persons are engaged in stopping the buggi and there are two on each of the two sides of the buggi their number would be six."
}
},
{
"from_name": null,
"id": "e08ff9cc0b584ecf85b1e8f38fab9bc0",
"to_name": null,
"type": null,
"value": {
"end": 19966,
"labels": [
"ANALYSIS"
],
"start": 19777,
"text": "Again, even if at least one person is assumed to be the assailant of each of the victims, in a simultaneous attack upon them, the number of such assailants alone would come to at least six."
}
},
{
"from_name": null,
"id": "b5cbdb51db5040418236dd1eb7c2be3f",
"to_name": null,
"type": null,
"value": {
"end": 20141,
"labels": [
"ANALYSIS"
],
"start": 19967,
"text": "It is, however, clear from the injuries on Mukhtara and Raghubir that each was attacked by more than one person because each had injuries with sharp edged weapons and lathis."
}
},
{
"from_name": null,
"id": "4c1b9f18c4ca4219ab21b3819043a33e",
"to_name": null,
"type": null,
"value": {
"end": 20275,
"labels": [
"ANALYSIS"
],
"start": 20142,
"text": "these facts were enough to come to the conclusion that the total number of assailants could not conceivably have been less than five."
}
},
{
"from_name": null,
"id": "4bfa0829104a42af9ecebfa0185f4e6f",
"to_name": null,
"type": null,
"value": {
"end": 20735,
"labels": [
"ANALYSIS"
],
"start": 20276,
"text": "The High Court however, after giving the benefit of doubt to four of the accused persons, on the ground that their cases did not differ from those of the others acquitted, came to the obviously correct conclusion that at least the four appellants before us must have taken part in the attack because they admitted their participation in the occurrence which took place at the time and place of the incident in which Raghubir and Mukhtara had lost their lives."
}
},
{
"from_name": null,
"id": "c224deec054d422ba77c95e2a8078e92",
"to_name": null,
"type": null,
"value": {
"end": 20809,
"labels": [
"ANALYSIS"
],
"start": 20736,
"text": "Three of the accused persons as already indicated, had received injuries."
}
},
{
"from_name": null,
"id": "b261aece057f4324bf4f10c81cd425b1",
"to_name": null,
"type": null,
"value": {
"end": 20885,
"labels": [
"ANALYSIS"
],
"start": 20810,
"text": "On their own version, these injuries were sustained in the same occurrence."
}
},
{
"from_name": null,
"id": "cbb96d30ab8b47b3b62d6a3de60836ef",
"to_name": null,
"type": null,
"value": {
"end": 21129,
"labels": [
"ANALYSIS"
],
"start": 20886,
"text": "If, therefore, the prosecution version about the broad character of the incident is correct, the only question which remained was: Against which accused person was the case of participation in the attack established beyond reason able doubt?\n "
}
},
{
"from_name": null,
"id": "32595603b6e24001afb3391ae7a0b47a",
"to_name": null,
"type": null,
"value": {
"end": 21344,
"labels": [
"ANALYSIS"
],
"start": 21129,
"text": "The High Court came to the conclusion that the admissions of the four accused, corroborated by the injuries on the bodies of three OF them, left no doubt whatsoever that they were, in any case, among the assailants."
}
},
{
"from_name": null,
"id": "e394322b9ed3417a8b9a4f54d374bb16",
"to_name": null,
"type": null,
"value": {
"end": 21611,
"labels": [
"ANALYSIS"
],
"start": 21345,
"text": "The others had merely been given the benefit of doubt lest some injustice is done by relying implicitly on partisan witnesses appearing in a type of case in which the innocent ale not infrequently sought to be roped in with the guilty who are, of course, not spared."
}
},
{
"from_name": null,
"id": "b2ce8f04fa9b4bca96fcad61efc618f2",
"to_name": null,
"type": null,
"value": {
"end": 21844,
"labels": [
"ANALYSIS"
],
"start": 21612,
"text": "This did not mean that the total number of assailants was actually less than five as the learned Counsel for the appellants asked us to presume from the fact that fourteen out of the eighteen accused persons were actually acquitted."
}
},
{
"from_name": null,
"id": "cea6c2cd196b4cf0a299aa25d24d0c51",
"to_name": null,
"type": null,
"value": {
"end": 22002,
"labels": [
"ANALYSIS"
],
"start": 21844,
"text": "\n It is true that the acquittal of an accused person does raise, in the eye of law, a presumption that he is innocent even if he was actually. guilty."
}
},
{
"from_name": null,
"id": "4d00010f0cdb4bdb87dd740ee04a16e7",
"to_name": null,
"type": null,
"value": {
"end": 22144,
"labels": [
"ANALYSIS"
],
"start": 22003,
"text": "But, it is only the acquitted accused person and not the convicted accused persons who can, as a rule, get the benefit of such a presumption."
}
},
{
"from_name": null,
"id": "2b23e27a579547b095d296a16b1c1fdc",
"to_name": null,
"type": null,
"value": {
"end": 22231,
"labels": [
"ANALYSIS"
],
"start": 22145,
"text": "The effect of findings on questions of fact depends upon the nature of those findings."
}
},
{
"from_name": null,
"id": "62312d0b8b46442788b45806c58f45fd",
"to_name": null,
"type": null,
"value": {
"end": 22491,
"labels": [
"ANALYSIS"
],
"start": 22232,
"text": "If, for example, only five known persons are alleged to have participated in an attack but the Courts find that two of them were falsely implicated, it would be quite nature; and logical to infer or presume that the participants were less than five in number."
}
},
{
"from_name": null,
"id": "8fbadd0541ba46dbad0d96bc0bccbdda",
"to_name": null,
"type": null,
"value": {
"end": 22909,
"labels": [
"ANALYSIS"
],
"start": 22492,
"text": "On the other hand, if the Court holds that the assailants were actually five in number, but there could be a doubt as to the identity of two of the alleged assailants, and, therefore, acquits two of them the others will not get the benefit of doubt about the identity of the two accused so long as there is a firm finding, based on good evidence and sound reasoning, that the participants were five or more in number."
}
},
{
"from_name": null,
"id": "522d5628d97e4646905c712affec3a55",
"to_name": null,
"type": null,
"value": {
"end": 23025,
"labels": [
"ANALYSIS"
],
"start": 22910,
"text": "Such a case is one of doubt only as to identity of some participants and not as to be total number of participants."
}
},
{
"from_name": null,
"id": "c012460f4674457c8513c0bddb740c52",
"to_name": null,
"type": null,
"value": {
"end": 23266,
"labels": [
"ANALYSIS"
],
"start": 23026,
"text": "It may be that a definite conclusion that the number of participants was at least five may be very difficult to reach whale the allegation of participation is confined to five known persons and there is doubt about the identity of even one."
}
},
{
"from_name": null,
"id": "429a6cb412b943baaaaafc968323151e",
"to_name": null,
"type": null,
"value": {
"end": 23955,
"labels": [
"ANALYSIS"
],
"start": 23267,
"text": "But, where a large number of known persons (such as eighteen, as is the case before us), are alleged to have participated and the Court acts on the principle that it is better to err on the side of safety, so that no injustice is done to a possibly wrongly implicated accused, and benefit of doubt is reaped by a large number, with the result that their acquittal, out of abundant caution, reduces the number of those about whose participation there can be no doubt to less than five, it may not be really difficult at all, as it not in she case before us, to recall the conclusion that, having laggard to undeniable facts, the number of participants could not possibly be less than five."
}
},
{
"from_name": null,
"id": "5d805859a50d4415a9b00e5f3209c188",
"to_name": null,
"type": null,
"value": {
"end": 24077,
"labels": [
"ANALYSIS"
],
"start": 23956,
"text": "We have, for the reasons given above, also reached the same conclusion as the learned Judges of the Allahabad High Court."
}
},
{
"from_name": null,
"id": "0a33b2961dc648c88dbecf74fce83d18",
"to_name": null,
"type": null,
"value": {
"end": 24279,
"labels": [
"ANALYSIS"
],
"start": 24078,
"text": "We wish that the High Court had itself given such reasons, which are not at all difficult to find in this case, so that its conclusion on the number of participants may not have appeared ratter abrupt."
}
},
{
"from_name": null,
"id": "a831508a3aa44564abc5f517783d53d9",
"to_name": null,
"type": null,
"value": {
"end": 24377,
"labels": [
"ANALYSIS"
],
"start": 24280,
"text": "Justice has not only to be done, but, as have been often said, must manifestly appear to be done."
}
},
{
"from_name": null,
"id": "f410b2be0831489dbfe395675fa6f121",
"to_name": null,
"type": null,
"value": {
"end": 24714,
"labels": [
"ANALYSIS"
],
"start": 24377,
"text": "\n Even if the number of assailants could have been less them five in the instant case (which, we think, on the facts stated above, was really not possible), we think that the fact that the attacking party was clearly shown to have waited for the buggi to reach near the field of Daryao in the early hours of 7.6.1967, shows pre-planning."
}
},
{
"from_name": null,
"id": "8096da16176b44e79fa1e65e891a7033",
"to_name": null,
"type": null,
"value": {
"end": 24762,
"labels": [
"ANALYSIS"
],
"start": 24715,
"text": "Some Of the assailants had sharp edged weapons."
}
},
{
"from_name": null,
"id": "ad54e62b98134f23af6185b6174609a1",
"to_name": null,
"type": null,
"value": {
"end": 24821,
"labels": [
"ANALYSIS"
],
"start": 24763,
"text": "They were obviously lying in wait for the buggi to arrive."
}
},
{
"from_name": null,
"id": "15f8f17f14f2411c86f09ad132919dce",
"to_name": null,
"type": null,
"value": {
"end": 24908,
"labels": [
"ANALYSIS"
],
"start": 24822,
"text": "They surrounded and attacked the occupants shouting that the occupants will be killed."
}
},
{
"from_name": null,
"id": "fc357c6ac22d471390752708cfe82521",
"to_name": null,
"type": null,
"value": {
"end": 24986,
"labels": [
"ANALYSIS"
],
"start": 24909,
"text": "We do not think that more convincing evidence of a pre-concert was necessary."
}
},
{
"from_name": null,
"id": "ef80400452a443dc8d2666c2ba118f0d",
"to_name": null,
"type": null,
"value": {
"end": 25104,
"labels": [
"ANALYSIS"
],
"start": 24987,
"text": "Therefore, if we had thought it necessary, we would not have hesitated to apply Section 34, I.P.C. also to this case."
}
},
{
"from_name": null,
"id": "27c88d4d38864b698fd6f1c3bbb7f626",
"to_name": null,
"type": null,
"value": {
"end": 25217,
"labels": [
"ANALYSIS"
],
"start": 25105,
"text": "The principle of vicarious liability does not depend upon the necessity to convict a required number of persons."
}
},
{
"from_name": null,
"id": "7c0a4dcf4e9a4fbba1a92481297bb3fd",
"to_name": null,
"type": null,
"value": {
"end": 25311,
"labels": [
"ANALYSIS"
],
"start": 25218,
"text": "It depends upon proof of facts, beyond reasonabledoubt which makes such principle applicable."
}
},
{
"from_name": null,
"id": "ca4378e4e5d1441594fbde83bcc4089e",
"to_name": null,
"type": null,
"value": {
"end": 25395,
"labels": [
"PRE_RELIED"
],
"start": 25312,
"text": "(See: Yehwant & Anr. v. State of Maharashtra;(1) and Sukh Ram v. State of U.P.)(2)."
}
},
{
"from_name": null,
"id": "3dc86938b9784c8caa324d498676591c",
"to_name": null,
"type": null,
"value": {
"end": 25669,
"labels": [
"ANALYSIS"
],
"start": 25396,
"text": "The most general and basic rule, on a question such as the one we are considering, is that there is no uniform, inflexible or invariable rule applicable for arriving at what is really an inference form the totality of facts and circumstances which varies from case to case."
}
},
{
"from_name": null,
"id": "0818ab889a314b498eb4a6041b985236",
"to_name": null,
"type": null,
"value": {
"end": 25747,
"labels": [
"ANALYSIS"
],
"start": 25670,
"text": "We have to examine the elect of findings given in each case on this totality."
}
},
{
"from_name": null,
"id": "d7f0bbc4691c4192b672febbe226d800",
"to_name": null,
"type": null,
"value": {
"end": 25805,
"labels": [
"ANALYSIS"
],
"start": 25748,
"text": "It is rarely exactly identical with that in another case."
}
},
{
"from_name": null,
"id": "9fcf15a726a84597a99d11ff15f4ff00",
"to_name": null,
"type": null,
"value": {
"end": 25986,
"labels": [
"ANALYSIS"
],
"start": 25806,
"text": "Other rules are really subsidiary to this basic verity and depend for their correct application OF the peculiar facts and circumstances in the context of which they are enunciated."
}
},
{
"from_name": null,
"id": "3bc098ae1326411597631e0cea725cfb",
"to_name": null,
"type": null,
"value": {
"end": 26308,
"labels": [
"PRE_RELIED"
],
"start": 25986,
"text": "\n In Yeshwant's case (supra), the question was whether the acquit(ah of an alleged participant, said to be Brahmanand Tiwari, for the murder of a man called Sukal, could make it impossible to apply the principle of vicarious liability to convict, under Section 302/34 I.P.C., Yeshwant, the only other participant in under."
}
},
{
"from_name": null,
"id": "d04cb779099146b0914b6bd31ad7a852",
"to_name": null,
"type": null,
"value": {
"end": 26854,
"labels": [
"PRE_RELIED"
],
"start": 26309,
"text": "This Court observed (at p.303): The benefit of this doubt can only go to the appellant Brahmanand Tiwari and not to the other accused persons 13 who were known well to each eye- witness.\"\n Distinguishing Krishna Govind Patil v. State of Maharashtra (3) this Court said in Yeshwant's case (supra) (at p. 302): \"We do not think that this decision which depends upon its own facts, as criminal cases generally do, lays down any general principle that, where the identity of one of the participants is doubtful, the whole case must end in acquittal."
}
},
{
"from_name": null,
"id": "ebf4a3c96345423190c7d9fe333d3028",
"to_name": null,
"type": null,
"value": {
"end": 27167,
"labels": [
"PRE_RELIED"
],
"start": 26855,
"text": "Such a question belongs to the realm of facts and not of law: ` The following cases were also cited before us: Dalip Singh & v. State of Punjab (4) Bharwad Mepa Dana & Anr. v.\n State of Bombay;(5) Kartar Singh v. State of Punjab;(6) Mohan Singh v. State of Punjab;(7) Ram Bilas Singh & Ors. v.\n State of Bihar(8)"
}
},
{
"from_name": null,
"id": "ef6801f0c59944879a8ad0638d5dda73",
"to_name": null,
"type": null,
"value": {
"end": 27380,
"labels": [
"PRE_RELIED"
],
"start": 27168,
"text": "In the case of Ram Bilas Singh (supra) previous decisions of this Court on the question argued before us have been considered at some length and a passage from Krishna Govind Patil's case (supra) was also quoted."
}
},
{
"from_name": null,
"id": "df958c32762049a1a99fd5e173235d65",
"to_name": null,
"type": null,
"value": {
"end": 27872,
"labels": [
"ANALYSIS"
],
"start": 27381,
"text": "In none of these cases was it decided that where, out of abundance of caution, a large number of accuse(l persons obtained an acquittal with the result that the number of those whose participation is established beyond reasonable doubt is reduced to less than five, but, at the same time, it is clear that the total number of assailants could not be less than five, the convicted accused persons must necessarily get the benefit of doubt arising in the case of the acquitted accused persons."
}
},
{
"from_name": null,
"id": "e403aa17e2384839a3bb4d2632ed85f9",
"to_name": null,
"type": null,
"value": {
"end": 28310,
"labels": [
"ANALYSIS"
],
"start": 27873,
"text": "A case like the one before us stands on the Same footing as any other case where there is certainty that the number of participants was not less than five but there is doubt only as to (1) [1973] I S.C.R. p. 291 @ 302 & 303. (2) [1974) 2 S.C.R. p. 518.\n (3) [1964] (1) S.C.R. 678. (4) [1954] S.C.R. 145.\n (5) [1960] 2 S.C.R. 172. (6) [1962] 2 S.C.R. 395.\n (7) [1962] Suppl (3) S.C.R. 848. (8) [1964] (1) S.C.R. 775."
}
},
{
"from_name": null,
"id": "bd4696f6c9ad4b61a47dba0a62bae54f",
"to_name": null,
"type": null,
"value": {
"end": 28353,
"labels": [
"ANALYSIS"
],
"start": 28312,
"text": "The identity of some of the participants."
}
},
{
"from_name": null,
"id": "1e858bd4d90448a288faffb8121907d7",
"to_name": null,
"type": null,
"value": {
"end": 28551,
"labels": [
"ANALYSIS"
],
"start": 28354,
"text": "It has to be remembered that doubts may arise with regard to the participation of a particular accused person in circumstances whose benefit can only be reaped by the accused who raises such doubt."
}
},
{
"from_name": null,
"id": "1173ad5f12184316a6b7458d3784186b",
"to_name": null,
"type": null,
"value": {
"end": 28780,
"labels": [
"ANALYSIS"
],
"start": 28552,
"text": "Doubts may also arise about the veracity of the whole prosecution version and doubts about the participation of individual accused persons may contribute to the emergence of such doubts which may cover and engulf the whole case."
}
},
{
"from_name": null,
"id": "9b24ad9788b44fcdb6769184e1fa00c6",
"to_name": null,
"type": null,
"value": {
"end": 29266,
"labels": [
"ANALYSIS"
],
"start": 28781,
"text": "Never the less, if, as in the instant case, the Courts, whose duty is to separate the chaff from the grain, does hold that the convicted persons were certainly members of an unlawful assembly which must have consisted of more than five persons, we do not see any principle of law or justice which could stand in the way of the application of Section 149 J.P.C. for convicting those found indubitably guilty of participation in carrying out of the common object of an unlawful assembly."
}
},
{
"from_name": null,
"id": "d66f6cce06a74fe995d9d0dd725694a2",
"to_name": null,
"type": null,
"value": {
"end": 29405,
"labels": [
"ANALYSIS"
],
"start": 29266,
"text": "\n The only remaining question arises from the age of Om Pal Which, at the time of trial, was found by the Trial Court to be about 15 years."
}
},
{
"from_name": null,
"id": "6ed02936fa1e49af81b0eadb8ce021e4",
"to_name": null,
"type": null,
"value": {
"end": 29501,
"labels": [
"STA"
],
"start": 29406,
"text": "This means that Section 29 of the Uttar Pradesh Children Act, 1951, was applicable to the case."
}
},
{
"from_name": null,
"id": "6efeb0b8fa9245c8866cb9ea6ce9b5f9",
"to_name": null,
"type": null,
"value": {
"end": 29762,
"labels": [
"STA"
],
"start": 29502,
"text": "This Section reads as follows: \"29. Commitment of child to approved school (1) Where a child is found to have committed an offence punishable with transportation or imprisonment, the Court, if satisfied on inquiry that it is expedient so to deal with the child"
}
},
{
"from_name": null,
"id": "3c0d68cc3149474eab52121494bcad5c",
"to_name": null,
"type": null,
"value": {
"end": 29996,
"labels": [
"STA"
],
"start": 29762,
"text": ", may order him to be sent to an approved school for such period of stay as will not exceed beyond the time when the child will attain the age of 18 years or for a shorter period, the reasons for such period to be recorded in writing."
}
},
{
"from_name": null,
"id": "ea100a4bc6664f948b640fbb09e0e470",
"to_name": null,
"type": null,
"value": {
"end": 30582,
"labels": [
"STA"
],
"start": 29996,
"text": "\n (2) Where prior to the commencement of this Act a youthful offender has been sentenced to transportation Or imprisonment, the State Government may direct that in lieu of undergoing or completing such sentence he shall, if under the age of sixteen years, be sent to an approved school, and thereupon the offender shall be subject to all the provisions of this Act as if he had been originally ordered to be detained in such school.\"\n This question was not raised earlier so that the Trial Court or the High Court may take the action it was open to the Courts to take after due inquiry."
}
},
{
"from_name": null,
"id": "a58408da60514f6fa94fd759cc1e56a3",
"to_name": null,
"type": null,
"value": {
"end": 30679,
"labels": [
"ANALYSIS"
],
"start": 30583,
"text": "Such action, if considered expedient, could only be to send the appellant to an approved school."
}
},
{
"from_name": null,
"id": "eb81ef182ba948aa9cbae1f1429382dc",
"to_name": null,
"type": null,
"value": {
"end": 30833,
"labels": [
"ANALYSIS"
],
"start": 30680,
"text": "We may observed that, although the appellant om Pal was said to be armed with a lathi, no specific part was assigned to him by any prosecution witnesses."
}
},
{
"from_name": null,
"id": "a0c36e0d233c41ed87a1074c2dfce07c",
"to_name": null,
"type": null,
"value": {
"end": 30984,
"labels": [
"ANALYSIS"
],
"start": 30834,
"text": "He was bound, with the background of hostility between two sides and the events mentioned above, to have been misled by the bad example of his elders."
}
},
{
"from_name": null,
"id": "19b9e3bd149a4cebb2d21b29ceec36c6",
"to_name": null,
"type": null,
"value": {
"end": 31075,
"labels": [
"ANALYSIS"
],
"start": 30985,
"text": "No previous participation in such a case and no previous conviction was shewn against him."
}
},
{
"from_name": null,
"id": "f25a45ed807d45b7acf0403434dc2573",
"to_name": null,
"type": null,
"value": {
"end": 31234,
"labels": [
"RATIO"
],
"start": 31076,
"text": "We, therefore, think that appropriate action under Section 29 of the Children's Act could have been taken in his case if the question had been raised in time."
}
},
{
"from_name": null,
"id": "5ccdf8c78c1f4c6babd55bb30be8a20c",
"to_name": null,
"type": null,
"value": {
"end": 31405,
"labels": [
"RATIO"
],
"start": 31235,
"text": "We hope that the punishment he has already undergone has had a salutary effect in making him conscious of the gravity of the consequences of joining an unlawful assembly."
}
},
{
"from_name": null,
"id": "806b66f597f74374a5cb38b63e24972a",
"to_name": null,
"type": null,
"value": {
"end": 31573,
"labels": [
"RPC"
],
"start": 31406,
"text": "All that we can do now, in the circumstances of Om Pal's case, is to recommend the remission of the remaining period of om Pal's sentence to the authorities concerned."
}
},
{
"from_name": null,
"id": "8b4300255f774b3faf1146dc82eb0d40",
"to_name": null,
"type": null,
"value": {
"end": 31763,
"labels": [
"PRE_RELIED"
],
"start": 31573,
"text": "\n Subject to the observations made above with regard to om Pal, we affirm the convictions and sentences and dismiss this appeal.\n P.H.P. Appeal dismissed"
}
}
]
}
] | 4,163 | {
"text": "PETITIONER:\nDHARAM PAL & ORS.\n\n Vs.\n\nRESPONDENT:\nTHE STATE OF U.P.\n\nDATE OF JUDGMENT01/09/1975\n\nBENCH:\nBEG, M. HAMEEDULLAH\nBENCH:\nBEG, M. HAMEEDULLAH\nBHAGWATI, P.N.\nSARKARIA, RANJIT SINGH\n\nCITATION:\n\n1975 AIR 1917 1976 SCR (1) 587\n (9,18)\n1975 SCC (2) 596\n\nCITATOR INFO :\n\nR 1976 SC1084\n\nACT:\n I.P.C. Sec . 302 read sec .149 and 34-Conviction of\n\nfour accused and acquittal of rest -Whether unlawful\nassembly Whether conviction under common intention -\nVicarious liability- U.P. Children Act, 1951-Sec. 29-Young\naccused -Recommendation of remission.\n\nHEADNOTE:\n The 4 appellants were tried along with 14 others for\n\nthe offence of rioting in the course of which 2 murders were\ncommitted at 6-30 a.m on 7-1967. The prosecution revealed a\nlong standing enmity between the tyo groups; one to which\nthe appellants belonged and the other to which the deceased\nbelonged. The defence case was that people belonging to the\ngroup of the deceased killed the deceased and that\nthereafter they attacked the 3 injured appellants. At the\ntrial however, the defence witnesses stated that the 3\nwitnesses who were injured(l a(tempted to save the deceased\nand were therefore injured.\n\n The prosecution evidence suffered from some quite\nobvious infirmitied. Each of the 4 injured eye witnesses\nwhile naming each of the IX accused persons as participants\nin the occurrence and specifying their weapons without any\ncontradiction had failed to assign any particular part of\nany of them. Each injured eye-witness said that all 18\naccused persons were assaulting the injured. I his was\nhardly consistent with the medical evidence.\n\n The Trial Court acquitted 11 accused giving them the\nbenefit of doubt and convicted 7 including the 4 appellants\nunder section 302 read with section 149.\n\n The High Court gave the benefit of doubt to all the\naccused except the 4 appellants. The High Court came to the\nconclusion that the 4 appellants had taken part in The\nattack in view of the admission of the 4 accused about their\nparticipating in the occurrence corroborated by the injuries\non the bodies of 3 of them.\n\n On appeal by Special leave it was contended by the\nappellants that since 14 out of 18 accused persons were\nactually acquitted the Court must presume that total number\n\nof assailants was less than 5 and that they. therefore\ncannot be convicted under section t 49\n^\n\n HELD: 1. It is true that the acquittal of an accused\nperson does raise in the eye of law, a presumption that he\nis innocent even if he was actually guilty. but it is only\nthe acquitted accused person and not the convicted accused\nperson who can as a rule get the benefit of such a\npresumption. The effect of findings on questions of fact\ndepends upon the nature of those findings 1 only five known\npersons are alleged to have participated in an attack; and\nthe counts find that 2 of them were falsely implicated it\nwould be quite natural and logical to infer or presume that\nthe participants were less than 5 in number. On the other.\nhand if the court holds that the assailant were actually 5\nin number but there could be a doubt as to the identity of 2\nof the alleged assailants and therefore acquits 2 of them\nthe others will not get the benefit of douht. so long as\nthere is a firm finding based on good evidence and sound\nreasoning that the participants were 5 or more in number.\nSuch a ease is one of doubt only as to identity of some\nparticipants and not as to total number of participants.\n[594A-C]\n\n 2. It is true that there are some unfirmities in the\nprosecution evidence However the impression of rustic\nwitnesses sought to he conveyed through their statements\ncannot be interpreted as though they were made in carefully\ndrawn up documents calling for a literal interpretation.\n[592 H]\n 3. The number and location of injuries on both sides\nalso indicate an attack by a group of persons which must\nhave surrounded the party of the deceased persons travelling\nin the Buggi. Even is 2 persons are engaged in stopping the\nBuggi and there are 2 on each side of the Buggi then the\nnumber would be 6. Again, even if one person Is assumed to\nbe the assailant of each of the victims in a simultaneous\nattack upon them the number of such assailants alone would\ncome to at least 6. The deceased had injuries with sharp\nedged weapons and lathis. It is therefore clear that each\none was attacked by more than one person. These facts were\nenough to come to the conclusion that the total number of\nassailants could not conceivably have been less than 5. [593\nC-E]\n\n 4. Even if the number of assailants could have been\nless than 5 (which can the facts stated was really not\npossible) we think that the fact that the attacking party\nwas clearly shown to have waited for the Buggi to reach near\nthe field of Daryao in the early hours shows pre-planning.\nSome of the assailants had sharp edged weapons. They were\nobviously lying in wait for the Buggi to arrive. A more\nconvincing evidence of a pre-concert was not necessary.\nTherefor if necessary. we would not have hesitated to apply\nsection 31 of I.P.C. also to this case. The principle of\nvicarious liability does not depend upon the necessity to\nconvict the required number of persons but it depends upon\nproof of facts beyond reasonable doubt which makes such a\nprinciple applicable. [594 F-H 595-A]\n\n Yeshwant & Anr. v. State of Maharashtra [1973] 1 S.C.R.\n291 It 302-303 at and Sukh Ram v. State of U.P. [1974] 2\nS.C.R. 518 distinguished.\n\n 5.The age of appellant Om Pal at the time of trial was\nIS years. Section 29 of the U.P. Children Act 1951 was\napplicable to the case. This question was not raised either\nbefore the Trial Court or before the High Court. Although Om\n\nPal accused was said to be armed with a lathi no specific\npart was assigned to him by the prosecution witnesses He\nmust have been misled by the bad example of his elders. No\nprevious participation in such a case and no previous\nconviction was shown against him. The appropriate ac(ion\nunder section 29 of the Children Act could have been taken\nin his case is the question had been raised in time. The\nCourt recommended the remission of the remaining period of\nOm Pal to the authorities concerned. [548D H. 599A-C]\n\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.\n 108 of 1971.\n Appeal by Special Leave from the Judgment and order dated the 20th November, 1970 of the Allahabad High Court in Criminal Appeal No. 495 of 1968.\n D. Mukherjee, U. K. Jha and U. P. Singh: for the Appellant.\n D. P. Unival and o. P. Rana for the Respondent.\n The Judgment of the Court was delivered by- BEG, J.-The four appellants Daryao Singh, aged 46 years. Birbal aged 50 years, Dharam Pal aged 29 years and Om Pal, aged 15 years, were tried, alongwith 14 others, for the offence of rioting in the course of which two murders were committed, on 7.6.1967, at about 6.30 a.m., on a path adjoining the field of the appellant Daryao Singh leading to village Parsoli from village Nirpura, in Police Station Doghat, in the District of Meerut. The Trial Court acquitted eleven accused persons giving them the benefit of doubt and convicted seven including the four appellants. Each of the accused persons was charged and convicted under Section 302, read with Sections 149, Indian Penal Code and sentenced to life imprisonment, in addition to charges and convictions under Section 149/324 and 149/34 I.P.C. and either under Section 147 or Section 148 I.P.C. depending upon the weapon alleged to have been used by an accused person. The prosecution case revealed a long standing enmity between two groups of village Nirpura: one to which the appellants belonged and another to which Mukhtara and Raghubir, the murdered men, and the four other injured persons belonged. As is not unusual, the origin of the hostility between the two sides seems to have been a dispute over cultivable land between collaterals who had some joint Khatas. Asa Ram, P.W. 1, claimed to be in separate possession of some plots with his two brothers, including Raghubira (murdered), and his uncle Mukhtara (murdered) . It was alleged by Asa Ram (P.W. 1) that Daryao Singh appellant wanted to take forcible possession of some land cultivated by him. Daryao Singh and others had already filed partition suit which was pending at the time of the occurrence. It appears that Hargyan, the father of the appellant Daryao, a first cousin of Mukhtara, the murdered man, had also been murdered in 1923 over a similar dispute. Asa Ram (P.W.1), and Raghubira (deceased), Bija (P.W. 10) and Asghar (P.W 4) had been convicted and sentenced to life imprisonment. They had been released on parole after five years' imprisonment On the date of occurrence, Mukhtara, the murdered man, was said to be proceeding with Raghubir, who was also murdered, and Asa Ram, P.W.1, and Bija, P.W.10, all sitting in a buggi driven by Asghar, P.W.4, and Smt. Jahani, P.W.3, the wife of Asa Ram, P.W.1, was said to be following the buggi at a short distance with some food for the party. When this buggi reached the field of Daryao Singh, where a number of persons, said to be eighteen altogether, whose names are mentioned in the First Information Report lodged at Police Station Doghat at a distance of three miles from village Nirpura at 8.30 a.m., were sitting on the boundary. These persons are alleged to have surrounded the buggi and attacked its occupants with balams and lathies shouting that the whole party in the buggi should be killed. give occupants of the buggi, and, after that, Smt. Jahani, who soon joined them, were injured. Two of them, Mukhtara and Raghubir, died very soon after the attack. It was alleged that Dharam Pal, Birbal and Daryao, appellants, and Nahar, Ajab Singh, and Ram Kishan, acquitted persons, were armed with balams, one Salek Chand was armed with a spade, and the rest with lathis. A number of witnesses are said to have arrived in response to the shout of the injured occupants of the buggi. The following injuries are shown to have been sustained by the victims of the attack: 1. MUKHTARA: \"1. Vertical abrasion, 1 1/2 in. x 1/2 in. On the head, 4 in. above the middle of the left eye- brow 2. Transverse abrasion, 1 3/4 in.x3/4 in. On the head, 5 in. above the right eye-brow.\n 3. Round swelling\" 2 in.x2 in. On the right side of the head, 1/2 in. above the ear, there was a depressed fracture 2 in.x2 in. underneath on the bone.\n 4. Transverse incised wound 1 1/2in.x1/2 in.xboneand brain deep on the head 1 in.\n behind the middle of the right car. Brain matter was coming out of the wound. 5. Transverse incised wound 1 1/4in.x 1/2 in. x bone deep on the A head 3 in. behind the upper part of the right car. The margins of injuries Nos. 4 and 5 were clear cut, smooth and well defined and angles on both the end were acute.\n 6. Round blue mark 2 in.x2 in. On the right shoulder portion. There was swelling all over the head. There was no reference of injuries Nos. 1 and 6 in the inquest report .\n 2. RAGHUBIRA 1. Transverse abrasion 1/4 in.x1/2. On the left ankle inner side.\n 2. Vertical punctured wound in.x1/3 in.x1/4 in.\n On the back side, of the elbow, margins, clean cut. smooth and wall defined and angles were acute.\n 3. Transverse lacerated wound on the head, 1 1/2 in. x 2 in. bone deep on the right side 3 in above the car.\n 4. Round wound on the head 4 1/2 in. above the middle of the right eye-brow with margins clean cut\".\n 3. ASA 1. Punctured wound 1/2 in.x1/4 in.x1/4 in. On the left side of the chest with abrasions on the margins, 64 in. below the axile.\n 2. Abrasion 1/2 in.x1/4 in. On the left shoulder.\n 3. Abrasion 1/2 in.x1/4 in. oblique, on the right side of the chest extending towards right shoulder from epigastrium.\n 4. Abrasion 1/4 in.x1/8 in. On the inner side of the left hand I in. above the wrist.\n 5. Abrasion 1/4in.x1/6 in. On the right arm back side 3 in. above the elbow.\n 6. Contusion 3/4 in.x1/2 in. On the right side 3 in. below the edge of the iliac crest.\n 7. Incised wound 1/2 in.x1/10 in. x skin deep 1/2 in. below the left eye.\"\n 4. SMT. JAHANI: 1. Lacerated wound 1 1/3 in. x 1/2 in. bone deep from front to backward 3 1/2 in. above the left ear.\n 2. Contusion 4 1/4 in.x1 in. On the left scapular region. 2 1/2 in. below the shoulder.\n 3. Contusion 1 1/2 in.x1/4 in. parallel to the earth extending from the upper and inner end of injury No. 2. These injuries were simple and had been caused by some blunt weapon, like lathi and were about 6 hours old (fresh). I had prepared the injury report Ex.\n Ka 16 at the time of examination. It bears my signature and is correct.\" 5. ASGHAR: 1. Contusion 2 in.x1/4 in.x1/4 in. going from front to back 31 in. above the nose.\n 2. Punctured wound 1 in.x ' in.x-4 in. On the left hand, outer side 2 in. below the elbow.\n 6. BIJAI SINGH: 1. Contused wound 1/2 in.x1/2 in. x skin deep at the part above the nail of the thumb of right hand with contusion 1 1/4 in. x1/2 in.\n in the inner part of the nail.\n 2. Contusion 2 1/4 in.x3/4 in. extending from the palm on the 1st and 2nd knuckles whereblood had clotted in an area of 1/2 in.\n x1/4 . On the palmer side.\n 3. Abrasion 1/2 in.x1/4 in. On the back and anterior side of right hand, 3 1/2 in. above the wrist.\"\n Injuries were found on the side of the accused on 3 appellants only. They were as follows: (1) OM PAL: 1. Lacerated wound 1/2 in.x4/10 in.x2/10 in. on the inner side of left forearm 3 1/2 in.\n above the left wrist.\n 2. Lacerated wound 2/10 in.x2/10 in.x6/10 in. On the inner side of left forearm.\n 3. Abrasion 3/10 in.X21 10 in. On the upper r side of left forearm, 3 1/2 in. above the left wrist.\"\n 2. DARYAO: \"1. Abrasion in.x3/10 in on the left shoulder in front side.\n 2. Wound with scab 4/10 in.x2/10 in. On the left are outer side, 6 in. below left shoulder\".\n 3 . BIRBAL: 1. Lacerated wound 2 in.x3/10 in. bone deep on the front , side of head.\n 2. Abrased contusion 1 in.x2/10 in. On the left side of head, 3 in. above the left ear.\n 3. Contusion 1/2 in.x4/10 in. On the right side of head, 2 in. above the right ear.\n 4. Abrasion 1/4 in.x1/4 in. On the index finger of the right hand upper side on the middle phalux.\n 5. Abrasion 1/4 in.x1/4 in. On the upper side at the root of the middle finger of right hand.\n 6. Abrasion 1/2 in.x1/10 in. On the inner side of the lower portion of left fore-arm, 3 in.\n above the wrist.\n 7. Abrasion 3/10 in.x1/10 in. On the inner side of left wrist.\n 8. Lacerated wound 3/10 in.x1/10 in.x3/10 in. an the A right at a distance of 31 in. from side of thigh, anterior iliac spine\".\n It is significant that in answer to the last question put to Daryao Singh, appellant, in the Committing Magistrate's Court, under Section 342 Criminal Procedure Code, whether he had nothing else to say, the first thing that came to his mind was that Asa Ram P.W.1, and Bijai, P.W. 10 and Raghubir (deceased) had killed his father about 15 years ago.\n The defense case seemed quite absurd. It was that, Asa Ram and Bijai and Asghar, after having killed Mukhtara and Raghubir, haul come and attacked the three injured appellants at the time and place given by the, prosecution.\nTheir defense witness, however, in an obvious attempt to explain the injuries of the three appellants, put forward the entirely new version that, when Asa, Bijai, and Asghar, were killing Mukhtara and Raghubir, the three injuries appellants had attempted to save the murdered men and were injured as a consequence. The accused had even filed a First Information Report on these lines. They unsuccessfully tried to prosecute Asa and Bijai and Asghar who could not, as the Trial Court and the High Court had rightly observed, be expected to run berserk suddenly and attack persons on their own side for no explicable reason.\n The prosecution had, in addition to examining injured witnesses, mentioned above, produced Rattan Singh P.W.2, Kalu, P.W.9, and Lakhi, P.W.7, whose testimony was discarded by it on two grounds: firstly, because each one was shown to have some enmity with some accused person; and, secondly, because they were said to have been standing at a Harat nearly 400 paces away from where` according to the High Court, they could not have seen the occurrence. If there was no obstruction to the range, of vision, and none was shown by evidence, these witnesses could at least make out the number of assailants from this distance as sunlight was there.\n The prosecution evidence suffered from some quite obvious infirmities. Each of the four injured eye witnesses, while naming each of the eighteen accused persons as participants in the occurrence and specifying their weapons, without any contradiction, had failed to assign any particular part to any of them. Each injured witness said that all the eighteen accused persons, named in the First information Report, were assaulting the injured. This was hardly consistent with either the medical evidence or the very short time the whole occurrence was said to have lasted. It was physically impossible for all the eighteen accused persons to attack simultaneously each of the five victims. However, we cannot interpret the impressions of rustic witnesses, sought to be conveyed through their statements` as though they were made in carefully drawn up documents calling for a literal interpretation. It was likely that each of them had seen some acts of some assailants, but, due to natural discrepancies in their accounts, as each could only depose the part he had observed, each had been instructed to omit this part of his testimony. That may explain how each consistently stated that all the accused persons were attackinghis or her party although he or she could not specify which accused attacked which victim. From the manner in which each witness could, without making any mistake, name each of the eighteen accused persons, almost in the same order, and specify the weapon each carried, without any discrepancy, some tutoring could be suspected. Nevertheless, both the Trial Court and the High Court had reached the definite conclusion that the party of assailants consisted of more than five persons. It also found that this party was sitting on the boundary of the field of Daryao, apparently waiting with their weapons for the buggi, carrying Raghubir and Mukhtara and others., to reach the spot where they surrounded it and attacked. It was clear, from the nature and number of injuries of both sides, which we have set out above in extenso, that the attacking party must have consisted of more persons than the party of the male victims who were five in number. Even if these five victims were sitting in the buggi they were not all empty handed. Some of them had lathis which they plied in self defence. The number and location of injuries on both sides also indicated an attack by a group of persons which must have surrounded the party traveling in the buggi. Even if two persons are engaged in stopping the buggi and there are two on each of the two sides of the buggi their number would be six. Again, even if at least one person is assumed to be the assailant of each of the victims, in a simultaneous attack upon them, the number of such assailants alone would come to at least six. It is, however, clear from the injuries on Mukhtara and Raghubir that each was attacked by more than one person because each had injuries with sharp edged weapons and lathis. these facts were enough to come to the conclusion that the total number of assailants could not conceivably have been less than five. The High Court however, after giving the benefit of doubt to four of the accused persons, on the ground that their cases did not differ from those of the others acquitted, came to the obviously correct conclusion that at least the four appellants before us must have taken part in the attack because they admitted their participation in the occurrence which took place at the time and place of the incident in which Raghubir and Mukhtara had lost their lives. Three of the accused persons as already indicated, had received injuries. On their own version, these injuries were sustained in the same occurrence. If, therefore, the prosecution version about the broad character of the incident is correct, the only question which remained was: Against which accused person was the case of participation in the attack established beyond reason able doubt?\n The High Court came to the conclusion that the admissions of the four accused, corroborated by the injuries on the bodies of three OF them, left no doubt whatsoever that they were, in any case, among the assailants. The others had merely been given the benefit of doubt lest some injustice is done by relying implicitly on partisan witnesses appearing in a type of case in which the innocent ale not infrequently sought to be roped in with the guilty who are, of course, not spared. This did not mean that the total number of assailants was actually less than five as the learned Counsel for the appellants asked us to presume from the fact that fourteen out of the eighteen accused persons were actually acquitted.\n It is true that the acquittal of an accused person does raise, in the eye of law, a presumption that he is innocent even if he was actually. guilty. But, it is only the acquitted accused person and not the convicted accused persons who can, as a rule, get the benefit of such a presumption. The effect of findings on questions of fact depends upon the nature of those findings. If, for example, only five known persons are alleged to have participated in an attack but the Courts find that two of them were falsely implicated, it would be quite nature; and logical to infer or presume that the participants were less than five in number. On the other hand, if the Court holds that the assailants were actually five in number, but there could be a doubt as to the identity of two of the alleged assailants, and, therefore, acquits two of them the others will not get the benefit of doubt about the identity of the two accused so long as there is a firm finding, based on good evidence and sound reasoning, that the participants were five or more in number. Such a case is one of doubt only as to identity of some participants and not as to be total number of participants. It may be that a definite conclusion that the number of participants was at least five may be very difficult to reach whale the allegation of participation is confined to five known persons and there is doubt about the identity of even one. But, where a large number of known persons (such as eighteen, as is the case before us), are alleged to have participated and the Court acts on the principle that it is better to err on the side of safety, so that no injustice is done to a possibly wrongly implicated accused, and benefit of doubt is reaped by a large number, with the result that their acquittal, out of abundant caution, reduces the number of those about whose participation there can be no doubt to less than five, it may not be really difficult at all, as it not in she case before us, to recall the conclusion that, having laggard to undeniable facts, the number of participants could not possibly be less than five. We have, for the reasons given above, also reached the same conclusion as the learned Judges of the Allahabad High Court. We wish that the High Court had itself given such reasons, which are not at all difficult to find in this case, so that its conclusion on the number of participants may not have appeared ratter abrupt. Justice has not only to be done, but, as have been often said, must manifestly appear to be done.\n Even if the number of assailants could have been less them five in the instant case (which, we think, on the facts stated above, was really not possible), we think that the fact that the attacking party was clearly shown to have waited for the buggi to reach near the field of Daryao in the early hours of 7.6.1967, shows pre-planning. Some Of the assailants had sharp edged weapons. They were obviously lying in wait for the buggi to arrive. They surrounded and attacked the occupants shouting that the occupants will be killed. We do not think that more convincing evidence of a pre-concert was necessary. Therefore, if we had thought it necessary, we would not have hesitated to apply Section 34, I.P.C. also to this case. The principle of vicarious liability does not depend upon the necessity to convict a required number of persons. It depends upon proof of facts, beyond reasonabledoubt which makes such principle applicable. (See: Yehwant & Anr. v. State of Maharashtra;(1) and Sukh Ram v. State of U.P.)(2). The most general and basic rule, on a question such as the one we are considering, is that there is no uniform, inflexible or invariable rule applicable for arriving at what is really an inference form the totality of facts and circumstances which varies from case to case. We have to examine the elect of findings given in each case on this totality. It is rarely exactly identical with that in another case. Other rules are really subsidiary to this basic verity and depend for their correct application OF the peculiar facts and circumstances in the context of which they are enunciated.\n In Yeshwant's case (supra), the question was whether the acquit(ah of an alleged participant, said to be Brahmanand Tiwari, for the murder of a man called Sukal, could make it impossible to apply the principle of vicarious liability to convict, under Section 302/34 I.P.C., Yeshwant, the only other participant in under. This Court observed (at p.303): The benefit of this doubt can only go to the appellant Brahmanand Tiwari and not to the other accused persons 13 who were known well to each eye- witness.\"\n Distinguishing Krishna Govind Patil v. State of Maharashtra (3) this Court said in Yeshwant's case (supra) (at p. 302): \"We do not think that this decision which depends upon its own facts, as criminal cases generally do, lays down any general principle that, where the identity of one of the participants is doubtful, the whole case must end in acquittal. Such a question belongs to the realm of facts and not of law: ` The following cases were also cited before us: Dalip Singh & v. State of Punjab (4) Bharwad Mepa Dana & Anr. v.\n State of Bombay;(5) Kartar Singh v. State of Punjab;(6) Mohan Singh v. State of Punjab;(7) Ram Bilas Singh & Ors. v.\n State of Bihar(8) In the case of Ram Bilas Singh (supra) previous decisions of this Court on the question argued before us have been considered at some length and a passage from Krishna Govind Patil's case (supra) was also quoted. In none of these cases was it decided that where, out of abundance of caution, a large number of accuse(l persons obtained an acquittal with the result that the number of those whose participation is established beyond reasonable doubt is reduced to less than five, but, at the same time, it is clear that the total number of assailants could not be less than five, the convicted accused persons must necessarily get the benefit of doubt arising in the case of the acquitted accused persons. A case like the one before us stands on the Same footing as any other case where there is certainty that the number of participants was not less than five but there is doubt only as to (1) [1973] I S.C.R. p. 291 @ 302 & 303. (2) [1974) 2 S.C.R. p. 518.\n (3) [1964] (1) S.C.R. 678. (4) [1954] S.C.R. 145.\n (5) [1960] 2 S.C.R. 172. (6) [1962] 2 S.C.R. 395.\n (7) [1962] Suppl (3) S.C.R. 848. (8) [1964] (1) S.C.R. 775.\n The identity of some of the participants. It has to be remembered that doubts may arise with regard to the participation of a particular accused person in circumstances whose benefit can only be reaped by the accused who raises such doubt. Doubts may also arise about the veracity of the whole prosecution version and doubts about the participation of individual accused persons may contribute to the emergence of such doubts which may cover and engulf the whole case. Never the less, if, as in the instant case, the Courts, whose duty is to separate the chaff from the grain, does hold that the convicted persons were certainly members of an unlawful assembly which must have consisted of more than five persons, we do not see any principle of law or justice which could stand in the way of the application of Section 149 J.P.C. for convicting those found indubitably guilty of participation in carrying out of the common object of an unlawful assembly.\n The only remaining question arises from the age of Om Pal Which, at the time of trial, was found by the Trial Court to be about 15 years. This means that Section 29 of the Uttar Pradesh Children Act, 1951, was applicable to the case. This Section reads as follows: \"29. Commitment of child to approved school (1) Where a child is found to have committed an offence punishable with transportation or imprisonment, the Court, if satisfied on inquiry that it is expedient so to deal with the child, may order him to be sent to an approved school for such period of stay as will not exceed beyond the time when the child will attain the age of 18 years or for a shorter period, the reasons for such period to be recorded in writing.\n (2) Where prior to the commencement of this Act a youthful offender has been sentenced to transportation Or imprisonment, the State Government may direct that in lieu of undergoing or completing such sentence he shall, if under the age of sixteen years, be sent to an approved school, and thereupon the offender shall be subject to all the provisions of this Act as if he had been originally ordered to be detained in such school.\"\n This question was not raised earlier so that the Trial Court or the High Court may take the action it was open to the Courts to take after due inquiry. Such action, if considered expedient, could only be to send the appellant to an approved school. We may observed that, although the appellant om Pal was said to be armed with a lathi, no specific part was assigned to him by any prosecution witnesses. He was bound, with the background of hostility between two sides and the events mentioned above, to have been misled by the bad example of his elders. No previous participation in such a case and no previous conviction was shewn against him. We, therefore, think that appropriate action under Section 29 of the Children's Act could have been taken in his case if the question had been raised in time. We hope that the punishment he has already undergone has had a salutary effect in making him conscious of the gravity of the consequences of joining an unlawful assembly. All that we can do now, in the circumstances of Om Pal's case, is to recommend the remission of the remaining period of om Pal's sentence to the authorities concerned.\n Subject to the observations made above with regard to om Pal, we affirm the convictions and sentences and dismiss this appeal.\n P.H.P. Appeal dismissed "
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"text": " REPORTABLE\n "
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"text": "IN THE SUPREME COURT OF INDIA"
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"text": "CRIMINAL APPELLATE JURISDICTION\n\n "
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"start": 179,
"text": "CRIMINAL APPEAL NO.1920 OF 2019\nARISING OUT OF S.L.P.(CRIMINAL) NO. 10707 OF 2019\n\n"
}
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{
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"id": "a474548357c144778fc5c0e7d4b91826",
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"start": 262,
"text": "KANWAR PAL SINGH ..... APPELLANT(S)\n\n VERSUS\n\nTHE STATE OF UTTAR PRADESH AND .....\n\nANOTHER RESPONDENT(S)\n\n "
}
},
{
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"text": "J U D G M E N T\n "
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{
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"start": 524,
"text": "SANJIV KHANNA, J."
}
},
{
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"value": {
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"text": "Leave granted."
}
},
{
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"to_name": null,
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"value": {
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],
"start": 573,
"text": "2. Kanwar Pal Singh, the appellant, impugns the order dated 22nd July 2019 whereby the High Court of Judicature at Allahabad has dismissed his petition under Section 482 of the Code of Criminal Procedure, 1973 (`Code' for short) for quashing criminal prosecution under Section 379 of the Indian Penal Code, 1860 (`IPC' for short), Rules 3, 57 and 7 of the Uttar Pradesh Minor Mineral (Concession) Rules, 1963, Sections 4 and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (`Mines Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 1 of 17 Regulation Act' for short), and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 arising out of Crime Case No. 289 of 2018, Police Station Vindyachal, District Mirzapur, Uttar Pradesh."
}
},
{
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"id": "3b352d4051ee4fea91d0c90b38a0cc5d",
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"value": {
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],
"start": 1358,
"text": "The appellant had also challenged, without success before the High Court, the order dated 8th February 2019 passed by the Chief Judicial Magistrate taking cognizance and summoning the appellant for trial."
}
},
{
"from_name": null,
"id": "1a756b065efe46e1bda77ae7c88ebac7",
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"labels": [
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],
"start": 1562,
"text": "\n 3. In brief, the facts of the case are that on the basis of a complaint filed by one Mr. S.K. Pal, Surveyor, Mines Department, District Mirzapur, FIR No. 0289 dated 15th November 2018 was registered at Police Station, Vindyachal, inter alia recording that on 2nd November 2018, during inspection of the mining site in Village Nandni, Tehsil Sadar, District Mirzapur, the Nayab Tehsildar had noticed illegal mining whereupon a report vide letter dated 12th November 2018 was submitted to the Sub-Divisional Magistrate, Sadar."
}
},
{
"from_name": null,
"id": "560d8381cd6f44339fea6e336aa46cb7",
"to_name": null,
"type": null,
"value": {
"end": 2312,
"labels": [
"FAC"
],
"start": 2089,
"text": "The appellant is a Director of M/s. Kanwar Enterprises Pvt.\n Ltd., which was granted rights to excavate sand vide mining lease over Plot No. 2/4, measuring 12.35 acre and Plot No. 2/5 measuring 12.35 acre in Village Nandni."
}
},
{
"from_name": null,
"id": "5dcee50feb1c46b995fbb5f5d84b8e5a",
"to_name": null,
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"value": {
"end": 2517,
"labels": [
"FAC"
],
"start": 2313,
"text": "However, it is alleged that the appellant was mining sand outside the permitted area in Village Babhni numbered as 534/2 where he had illegally excavated a pit 50 feet long, 50 feet wide and 2 meter deep."
}
},
{
"from_name": null,
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"end": 2592,
"labels": [
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],
"start": 2517,
"text": "\n Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 2 of 17"
}
},
{
"from_name": null,
"id": "2d9a4abaa07944f4b0d63848e9336fc4",
"to_name": null,
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"value": {
"end": 2712,
"labels": [
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],
"start": 2593,
"text": "Consequently, the District Magistrate had ordered for immediate registration of the FIR under the aforesaid provisions."
}
},
{
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"id": "3d6c54de3995474193963fd10cbedcb5",
"to_name": null,
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"labels": [
"ARG_PETITIONER"
],
"start": 2712,
"text": "\n 4. Though a number of contentions were raised before the High Court, the learned senior counsel for the appellant has during the course of arguments before us restricted his submissions to the violation of Section 22 of the Mines Regulation Act and the legal effect thereof."
}
},
{
"from_name": null,
"id": "d1c2eaf27fff46a19fb259832e722dbf",
"to_name": null,
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"value": {
"end": 3240,
"labels": [
"ARG_PETITIONER"
],
"start": 2989,
"text": "Referring to the contents of the FIR, it is submitted that the appellant has been wrongly charge-sheeted by the police for the offences, as at the best there was violation of Section 4, which is punishable under Section 21 of the Mines Regulation Act."
}
},
{
"from_name": null,
"id": "200a2731ab50454ea6332742ac6aab1c",
"to_name": null,
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"value": {
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"labels": [
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],
"start": 3240,
"text": "\n It is highlighted that M/s. Kanwar Enterprises Pvt. Ltd. had held a valid lease for mining."
}
},
{
"from_name": null,
"id": "433325d0f5d54a1aa34fdd8bcaed1fd0",
"to_name": null,
"type": null,
"value": {
"end": 3526,
"labels": [
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],
"start": 3340,
"text": "As per Section 22 no court can take cognizance of the offences under the Mines Regulation Act, except on a complaint in writing by a person authorised by the Central or State Government."
}
},
{
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"id": "db74a556cac343a5ae8c87aa18d162a2",
"to_name": null,
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"value": {
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"labels": [
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],
"start": 3527,
"text": "The State police not being authorised, could not have filed the charge-sheet/complaint."
}
},
{
"from_name": null,
"id": "9e87fa028ee04011b05b2e8f1783d88a",
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"labels": [
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],
"start": 3615,
"text": "The contention predicated on Section 22 of the Mines Regulation Act is made by relying upon the judgment of this Court in Jeewan Kumar Raut and Another v. Central Bureau of Investigation1.\n "
}
},
{
"from_name": null,
"id": "7264eb35e63d4f10ade50939214b6562",
"to_name": null,
"type": null,
"value": {
"end": 4008,
"labels": [
"ANALYSIS"
],
"start": 3811,
"text": "In the written submissions filed by the appellant, a relatively new plea and contention has been raised by relying upon the 1 (2009) 7 SCC 526 Page 3 of 17"
}
},
{
"from_name": null,
"id": "dae282507fa541749cb8802eacdb03fb",
"to_name": null,
"type": null,
"value": {
"end": 4404,
"labels": [
"ANALYSIS"
],
"start": 4009,
"text": "Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 judgments of this Court in Belsund Sugar Company Limited v.\n State of Bihar,2 Sharat Babu Digumarti v. Government of NCT of Delhi3 and Suresh Nanda v. Central Bureau of Investigation4 to urge that the Mines Regulation Act being a special statute, prosecution for an offence under Section 379 of the IPC would not be maintainable."
}
},
{
"from_name": null,
"id": "7db918885a0f4fc28bb8bbb0e498bb6a",
"to_name": null,
"type": null,
"value": {
"end": 4841,
"labels": [
"PRE_RELIED"
],
"start": 4405,
"text": "The judgment of this Court in State (NCT of Delhi) v. Sanjay.5, it is submitted, is distinguishable as the FIR for the offence against illegal sand mining in Sanjay (supra) was registered suo moto due to non-production of any document to establish mining rights and therefore, the ratio in that case would apply only to cases of illegal mining where the mining lease had already been revoked or there was no subsisting mining lease.\n 5."
}
},
{
"from_name": null,
"id": "8cf9a93e05744f7c9e9d8d1bc62d961a",
"to_name": null,
"type": null,
"value": {
"end": 4898,
"labels": [
"ANALYSIS"
],
"start": 4842,
"text": "We find the submission of the appellant to be untenable."
}
},
{
"from_name": null,
"id": "2f7406c1359247d29f927f2523a77295",
"to_name": null,
"type": null,
"value": {
"end": 5568,
"labels": [
"PRE_RELIED"
],
"start": 4899,
"text": "In Sanjay (supra), a Division Bench of this Court had decided appeals preferred against the conflicting judgments of the Delhi High Court, Gujarat High Court, Kerala High Court, Calcutta High Court, Madras High Court and Jharkhand High Court on the question whether a person can be prosecuted for the offences under Sections 379/114 and other provisions of the IPC on the 2 (1999) 9 SCC 620 Page 4 of 17 3 (2017) 2 SCC 18 4 (2008) 3 SCC 674 5 (2014) 9 SCC 772 Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 allegations of illegal mining in view of Section 22 of the Mines Regulation Act, which reads as under: \"22."
}
},
{
"from_name": null,
"id": "cb35326a8e8c449aa1e1395fe1f0ff18",
"to_name": null,
"type": null,
"value": {
"end": 5823,
"labels": [
"PRE_RELIED"
],
"start": 5569,
"text": "Cognizance of offences.-- No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government.\""
}
},
{
"from_name": null,
"id": "dce92f4206af442eb8fda14a84966369",
"to_name": null,
"type": null,
"value": {
"end": 6308,
"labels": [
"STA"
],
"start": 5825,
"text": "After adverting to the provisions of the Code, namely, Sections 2(c), 2(d) and 2(h) which define `cognizable offence', `complaint' and `investigation' respectively, this Court had referred to Section 4 of the Code, which reads as under: \"4. Trial of offences under the Indian Penal Code and other laws.-- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained."
}
},
{
"from_name": null,
"id": "24f5193d440e4ba78d91da03056f64f1",
"to_name": null,
"type": null,
"value": {
"end": 6621,
"labels": [
"STA"
],
"start": 6308,
"text": "\n (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.\""
}
},
{
"from_name": null,
"id": "c33ad405dd2e48e4a7ba3d95957d1d3f",
"to_name": null,
"type": null,
"value": {
"end": 6871,
"labels": [
"ANALYSIS"
],
"start": 6621,
"text": "\n As per sub-section (2) to Section 4, all offences under any law, other than the IPC, can be investigated, inquired into and tried under the Code, subject to any enactment regulating the manner or place of investigation, trial etc. of such offences."
}
},
{
"from_name": null,
"id": "22f318ac66a84244a0a43f984988bcba",
"to_name": null,
"type": null,
"value": {
"end": 6990,
"labels": [
"ANALYSIS"
],
"start": 6872,
"text": "Section 21 of the Mines Regulation Act, it was observed, states that the offences specified thereunder are cognizable."
}
},
{
"from_name": null,
"id": "8f10dd71cec74d2cbcde0d8c89aa2b97",
"to_name": null,
"type": null,
"value": {
"end": 7201,
"labels": [
"ANALYSIS"
],
"start": 6991,
"text": "Section 41 of the Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 5 of 17 Code was referred to elucidate that the police has the power to arrest without warrant in case of cognizable offences."
}
},
{
"from_name": null,
"id": "7c7f2b64bdf544f79d94e3b71c26148c",
"to_name": null,
"type": null,
"value": {
"end": 7606,
"labels": [
"ANALYSIS"
],
"start": 7202,
"text": "Sections 149 to 152 of Chapter XI of the Code that require the police to prevent cognizable offences either by arrest or otherwise, etc.\nwere referred, to hold that the aforementioned provisions show that a police officer of his own authority has the duty to prevent any injury attempted to be committed to any public property or national assets and also to prosecute such persons in accordance with law."
}
},
{
"from_name": null,
"id": "47acf5ae69174f36bfe8ae9e328574a1",
"to_name": null,
"type": null,
"value": {
"end": 7936,
"labels": [
"PRE_RELIED"
],
"start": 7606,
"text": "\n Accordingly, in Sanjay (supra) it was held that the investigation of the offences is within the domain of the police and the power of a police officer to investigate into cognizable offences is not ordinarily impinged by any fetters albeit the power must be exercised as per the statutory provisions and for legitimate purposes."
}
},
{
"from_name": null,
"id": "29ba7b9f5a5a4965a79863b665c094bd",
"to_name": null,
"type": null,
"value": {
"end": 8351,
"labels": [
"PRE_RELIED"
],
"start": 7937,
"text": "The courts would interfere only when while examining the case they find that the police officer in exercise of the investigatory powers has breached the statutory provisions and put the personal liberty and/or the property of a citizen in jeopardy by an illegal and improper use of the powers or when the investigation by the police is not found to be bona fide or when the investigation is tainted with animosity."
}
},
{
"from_name": null,
"id": "823d079b189741889473c73eb187e452",
"to_name": null,
"type": null,
"value": {
"end": 8750,
"labels": [
"PRE_RELIED"
],
"start": 8352,
"text": "While examining the issue, Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 6 of 17 this Court in Sanjay (supra) took notice of the decision in H.N.\n Rishbud v. State of Delhi6 wherein this Court has held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to the taking of the cognizance or trial."
}
},
{
"from_name": null,
"id": "ce9e0ff8e0514b50aa1124dc7f6a6806",
"to_name": null,
"type": null,
"value": {
"end": 8966,
"labels": [
"PRE_RELIED"
],
"start": 8751,
"text": "The cardinal principle of law as noted by this Court in Directorate of Enforcement v. Deepak Mahajan7 is that every law is designed to further the ends of justice and should not be frustrated on mere technicalities."
}
},
{
"from_name": null,
"id": "7cb5e0cab41e4fe9b3461b1c9317a8bb",
"to_name": null,
"type": null,
"value": {
"end": 9330,
"labels": [
"PRE_RELIED"
],
"start": 8967,
"text": "The public trust doctrine was cited and applied to underscore the principle that certain resources like air, sea, water, forests and minerals are of great importance to the people as a whole and that the government is enjoined to hold such resources in trust for the benefit of the general public and to use them for their benefit than to serve private interests."
}
},
{
"from_name": null,
"id": "159b66f8c18b4d06a8a2bc8daf457d4f",
"to_name": null,
"type": null,
"value": {
"end": 9888,
"labels": [
"PRE_RELIED"
],
"start": 9332,
"text": "6. This Court in Sanjay (supra) has cited several decisions wherein the challenge to the prosecution on the ground that there can be no multiplicity of offences under different enactments was resolved and answered by relying upon Section 26 of the General Clauses Act, which we would like to reproduce for the sake of convenience: 6 AIR 1955 SC 196 Page 7 of 17 7 (1994) 3 SCC 440 Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 \"26. Provision as to offences punishable under two or more enactments.--"
}
},
{
"from_name": null,
"id": "9967d84ae33943c49cbf7a59f8a91186",
"to_name": null,
"type": null,
"value": {
"end": 10317,
"labels": [
"PRE_RELIED"
],
"start": 9889,
"text": "Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.\"\n Section 26 of the General Clauses Act permits prosecution for `different offences' but bars prosecution and punishment twice for the `same offence' under two or more enactments"
}
},
{
"from_name": null,
"id": "543fe0ec980d44a19e2c1f63d0b97e3a",
"to_name": null,
"type": null,
"value": {
"end": 11741,
"labels": [
"PRE_RELIED"
],
"start": 10317,
"text": ". The expression `same offence' has been interpreted by this Court in numerous decisions viz., Maqbool Hussain v. State of Bombay8 with reference to the provisions of the Sea Customs Act and the Foreign Exchange Regulation Act, 1947; Om Parkash Gupta v.\n State of U.P.9 and State of Madhya Pradesh v. Veereshwar Rao Agnihotri10 with reference to Section 409 of the IPC and Section 5(2) of the Prevention of Corruption Act; T.S. Baliah v. ITO11 with reference to Section 52 of the Income Tax Act, 1922 and Section 177 of the IPC; Collector of Customs v. Vasantraj Bhagwanji Bhatia12, with reference to the provisions of the Customs Act 1962 and the provisions of the Gold (Control) Act, 1968; State of Bihar v. Murad Ali Khan13 with reference to the provisions of Sections 447, 429 and 379 of the IPC and provisions of the Wildlife 8 AIR 1953 SC 325 Page 8 of 17 9 AIR 1957 SC 458 10 AIR 1957 SC 592 11 AIR 1969 SC 701 12 (1988) 3 SCC 467 13 (1988) 4 SCC 655 Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 (Protection) Act, 1972; Avtar Singh v. State of Punjab14 with reference to Section 39 of the Electricity Act, 1910 and the provisions of theft under the IPC; and Institute of Chartered Accountants of India v. Vimal Kumar Surana15 with reference to the provisions of the Chartered Accountants Act, 1949 and offences under Sections 419, 468, 471 and 472 of the IPC."
}
},
{
"from_name": null,
"id": "4d57745a380a43848792e5d84ed8312f",
"to_name": null,
"type": null,
"value": {
"end": 11928,
"labels": [
"PRE_RELIED"
],
"start": 11741,
"text": "\n Elucidating on the provisions of Section 4 read with Sections 21 and 22 of the Mines Regulation Act and the offence under Section 379 of the IPC, it was observed in Sanjay (supra): \"69."
}
},
{
"from_name": null,
"id": "428f9d0ec9ab4c80a132f4108cc7ae41",
"to_name": null,
"type": null,
"value": {
"end": 12209,
"labels": [
"PRE_RELIED"
],
"start": 11929,
"text": "Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed."
}
},
{
"from_name": null,
"id": "d204a391da154b9094ccd3396ffa997f",
"to_name": null,
"type": null,
"value": {
"end": 12431,
"labels": [
"PRE_RELIED"
],
"start": 12210,
"text": "The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges."
}
},
{
"from_name": null,
"id": "4d7085a4c43f4724b4ca7ebdc2068385",
"to_name": null,
"type": null,
"value": {
"end": 12524,
"labels": [
"PRE_RELIED"
],
"start": 12432,
"text": "It also weakens riverbeds, fish breeding and destroys the natural habitat of many organisms."
}
},
{
"from_name": null,
"id": "1796d3a9c0a345ea8caf87df77f38785",
"to_name": null,
"type": null,
"value": {
"end": 12684,
"labels": [
"PRE_RELIED"
],
"start": 12525,
"text": "If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove."
}
},
{
"from_name": null,
"id": "bd5e41b22d3c4644ac13aef08350a5c2",
"to_name": null,
"type": null,
"value": {
"end": 12774,
"labels": [
"PRE_RELIED"
],
"start": 12685,
"text": "It will not only change the river hydrology but also will deplete the groundwater levels."
}
},
{
"from_name": null,
"id": "e727cafe7dae4d3f95ab183fc5446a19",
"to_name": null,
"type": null,
"value": {
"end": 12891,
"labels": [
"ANALYSIS"
],
"start": 12774,
"text": "\n 70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein."
}
},
{
"from_name": null,
"id": "b2c6bdc7b4ec419185d42171718375ea",
"to_name": null,
"type": null,
"value": {
"end": 13194,
"labels": [
"ANALYSIS"
],
"start": 12908,
"text": "In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate."
}
},
{
"from_name": null,
"id": "840bec8c786e42b7890b2608cfddc87b",
"to_name": null,
"type": null,
"value": {
"end": 13465,
"labels": [
"ANALYSIS"
],
"start": 13195,
"text": "It is also not in dispute that the Magistrate shall in such cases take 14 AIR 1965 SC 666 15 (2011) 1 SCC 534 Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 9 of 17 cognizance on the basis of the complaint filed before it by a duly authorised officer."
}
},
{
"from_name": null,
"id": "1eaf45bcd2fe4937b81d4ec22ef72600",
"to_name": null,
"type": null,
"value": {
"end": 13718,
"labels": [
"ANALYSIS"
],
"start": 13466,
"text": "In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act."
}
},
{
"from_name": null,
"id": "1a7627eab248435b8ac299052c1a0fbb",
"to_name": null,
"type": null,
"value": {
"end": 14046,
"labels": [
"ANALYSIS"
],
"start": 13719,
"text": "In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code."
}
},
{
"from_name": null,
"id": "2b1e25c7749a4d7dbddb8780446fcf9d",
"to_name": null,
"type": null,
"value": {
"end": 14457,
"labels": [
"ANALYSIS"
],
"start": 14046,
"text": "\n 71. However, there may be a situation where a person without any lease or licence or any authority enters into river and extracts sand, gravel and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Penal Code."
}
},
{
"from_name": null,
"id": "b1197ad908f0492c8ebac2889e1ae0e9",
"to_name": null,
"type": null,
"value": {
"end": 14640,
"labels": [
"ANALYSIS"
],
"start": 14457,
"text": "\n 72. From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different."
}
},
{
"from_name": null,
"id": "ffbc88eeafb441a58a4444ab31dc67ec",
"to_name": null,
"type": null,
"value": {
"end": 15015,
"labels": [
"ANALYSIS"
],
"start": 14641,
"text": "The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft."
}
},
{
"from_name": null,
"id": "a3b89f94148d4763b480b1a614abbb98",
"to_name": null,
"type": null,
"value": {
"end": 15424,
"labels": [
"ANALYSIS"
],
"start": 15016,
"text": "Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons."
}
},
{
"from_name": null,
"id": "3df87da69adf4a2c980213f48ca6a769",
"to_name": null,
"type": null,
"value": {
"end": 15865,
"labels": [
"ANALYSIS"
],
"start": 15425,
"text": "In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure.\"\n (emphasis supplied) Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 10 of 17 7."
}
},
{
"from_name": null,
"id": "bb3b0376e73745bca583bb2000cab2d5",
"to_name": null,
"type": null,
"value": {
"end": 16152,
"labels": [
"ANALYSIS"
],
"start": 15866,
"text": "As noticed above, in the written submissions the appellant has relied upon Belsund Sugar Company Limited (supra), Sharat Babu Digumarti (supra) and Suresh Nanda (supra) to contend that where there is a special act dealing with a special subject, resort cannot be taken to a general act."
}
},
{
"from_name": null,
"id": "3b47eba875724df2b3e5a3d92f441ba0",
"to_name": null,
"type": null,
"value": {
"end": 16471,
"labels": [
"ANALYSIS"
],
"start": 16153,
"text": "The said submission has no force in view of the ratio in Sanjay (supra) as quoted above which specifically refers to Section 26 of the General Clauses Act and states that the offence under Section 4 read with Section 21 of the Mines Regulation Act is different from the offence punishable under Section 379 of the IPC."
}
},
{
"from_name": null,
"id": "b62240d480bd4a9782cbd4ff2be4013c",
"to_name": null,
"type": null,
"value": {
"end": 16530,
"labels": [
"ANALYSIS"
],
"start": 16472,
"text": "Thus, they are two `different' and not the `same offence'."
}
},
{
"from_name": null,
"id": "045ff87df1294dcea0bcfe379f9e73d5",
"to_name": null,
"type": null,
"value": {
"end": 16866,
"labels": [
"ANALYSIS"
],
"start": 16531,
"text": "It would be relevant to state here that the Delhi High Court in its decision reported as Sanjay v. State16, which was impugned in Sanjay (supra), had accepted an identical argument to hold that once an offence is punishable under Section 21 of the Mines Regulation Act, the offence would not be punishable under Section 379 of the IPC."
}
},
{
"from_name": null,
"id": "77a3c4573e8d44939ace7344eb15a43f",
"to_name": null,
"type": null,
"value": {
"end": 16963,
"labels": [
"ANALYSIS"
],
"start": 16867,
"text": "This reasoning was rejected by this Court and the judgment of the Delhi High Court was reversed."
}
},
{
"from_name": null,
"id": "85609efc65484780b05ef43d3ffb17e6",
"to_name": null,
"type": null,
"value": {
"end": 17048,
"labels": [
"ANALYSIS"
],
"start": 16964,
"text": "The contention relying on the same reasoning before us, therefore, must be rejected."
}
},
{
"from_name": null,
"id": "cb6d12c20ab84bc3b3dd4a7f346f7df5",
"to_name": null,
"type": null,
"value": {
"end": 17457,
"labels": [
"ANALYSIS"
],
"start": 17048,
"text": "\n 8. We would also reject the contention raised by the appellant in the 16 (2009) 109 DRJ 594 Page 11 of 17 Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 written submissions that the alleged theft of sand is not punishable under Section 379 read with Section 378 of the IPC as sand is an immovable property as per Section 3 (26) of the General Clauses Act."
}
},
{
"from_name": null,
"id": "da01ac97c9204adab712a9e0b110a9a4",
"to_name": null,
"type": null,
"value": {
"end": 17553,
"labels": [
"ANALYSIS"
],
"start": 17458,
"text": "In the present case, sand had been excavated and was thereupon no longer an immovable property."
}
},
{
"from_name": null,
"id": "9f41d50fdf674c6291964cb92e564ca4",
"to_name": null,
"type": null,
"value": {
"end": 17686,
"labels": [
"ANALYSIS"
],
"start": 17554,
"text": "The sand on being excavated would lose its attachment to the earth, ergo, it is a movable property or goods capable of being stolen."
}
},
{
"from_name": null,
"id": "02751e890fea428486301768a0eee532",
"to_name": null,
"type": null,
"value": {
"end": 17770,
"labels": [
"ANALYSIS"
],
"start": 17687,
"text": "{See Explanation 1 to Section 378 of the IPC and Sanjay (supra) as quoted above} 9."
}
},
{
"from_name": null,
"id": "50e4a7e234e84644b73456dc5b3a99d9",
"to_name": null,
"type": null,
"value": {
"end": 17928,
"labels": [
"PRE_RELIED"
],
"start": 17771,
"text": "We would in the end refer to the judgment in Jeewan Kumar Raut (supra) on which considerable reliance was placed by the appellant at the time of the hearing."
}
},
{
"from_name": null,
"id": "f223c6ca259a4c82a5bec42a45ec8dd2",
"to_name": null,
"type": null,
"value": {
"end": 18300,
"labels": [
"ANALYSIS"
],
"start": 17929,
"text": "The said judgment was distinguished in Institute of Chartered Accountants (supra) by observing that the provisions of the Transplantation of Human Organs Act, 1994 (`TOHO Act' for short) were different and were not similar to the provisions of sub-section 2 to Section 24-A, 25 and 26 of the Chartered Accountants Act as the TOHO Act is hedged with a non-obstante clause."
}
},
{
"from_name": null,
"id": "c946c77ccdce4f4784004891432c989c",
"to_name": null,
"type": null,
"value": {
"end": 18744,
"labels": [
"ANALYSIS"
],
"start": 18301,
"text": "We would like to further elucidate and explain that in Jeewan Kumar Raut (supra) this Court was examining the right of the appellant therein to claim statutory bail in terms of sub-section (2) to Section 167 of the Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 12 of 17 Code on the ground that the Central Bureau of Investigation (`CBI' for short) had failed to file the charge-sheet within 90 days from the date of arrest."
}
},
{
"from_name": null,
"id": "b84d27fbaa80418fb895ef0c14d593fd",
"to_name": null,
"type": null,
"value": {
"end": 19035,
"labels": [
"ANALYSIS"
],
"start": 18745,
"text": "Relying on Section 22 of the TOHO Act, which mandates filing of a complaint by a person duly authorised by a competent authority, it was observed that the TOHO Act is a special law which deals with the subjects mentioned therein, viz., offences relating to the removal of human organs, etc."
}
},
{
"from_name": null,
"id": "582a914411754179b913d7f275b8ff22",
"to_name": null,
"type": null,
"value": {
"end": 19287,
"labels": [
"ANALYSIS"
],
"start": 19036,
"text": "Ordinarily, any person can set the criminal law into motion but the legislature keeping in view the sensitivity and importance of the subject had provided that the violations under the TOHO Act would be dealt with by the authorities specified therein."
}
},
{
"from_name": null,
"id": "7bfbc8d81046449e92272a093bfc987a",
"to_name": null,
"type": null,
"value": {
"end": 19560,
"labels": [
"ANALYSIS"
],
"start": 19288,
"text": "Thereafter, reference was made to Section 4 of the Code as cited above, to hold that the TOHO Act being a special Act, the matters relating to offences covered thereunder would be governed by the provisions of said Act, which would prevail over the provisions of the Code."
}
},
{
"from_name": null,
"id": "b6cb242daf2640f389b139ccf327c3aa",
"to_name": null,
"type": null,
"value": {
"end": 19828,
"labels": [
"ANALYSIS"
],
"start": 19560,
"text": "\nReference was made to clause (iv) of sub-section (3) to Section 13 of the TOHO Act which states that the appropriate authority shall investigate any complaint of breach of any of the provisions of the said Act or any rules made thereunder and take appropriate action."
}
},
{
"from_name": null,
"id": "95cbc4a0a76a44f5aca7a80594266650",
"to_name": null,
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"value": {
"end": 19957,
"labels": [
"ANALYSIS"
],
"start": 19829,
"text": "There is no similar provision under the Mines Regulation Act i.e. the Mines and Minerals (Development and Regulation) Act, 1957."
}
},
{
"from_name": null,
"id": "e2a2b0ddf7044cf8a3a87dfd3bdf48a6",
"to_name": null,
"type": null,
"value": {
"end": 20037,
"labels": [
"ANALYSIS"
],
"start": 19957,
"text": "\n Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 13 of 17 10."
}
},
{
"from_name": null,
"id": "118290ee806146b09f01b149fe0f4737",
"to_name": null,
"type": null,
"value": {
"end": 20228,
"labels": [
"ANALYSIS"
],
"start": 20038,
"text": "In Jeewan Kumar Raut (supra), it was noted that the CBI has been designated as an appropriate authority under the provisions of the TOHO Act and therefore entitled to carry on investigation."
}
},
{
"from_name": null,
"id": "b6cb7720f3744b91bb96541b5a9d4d71",
"to_name": null,
"type": null,
"value": {
"end": 20531,
"labels": [
"ANALYSIS"
],
"start": 20229,
"text": "In this context, it was observed that Section 22 of the TOHO Act prohibits taking of cognizance except on a complaint made by an appropriate authority and therefore the police report filed by the CBI was only a complaint petition made by an appropriate authority in terms of Section 22 of the TOHO Act."
}
},
{
"from_name": null,
"id": "1b80066f5efa4fd68bbfbbdd86864469",
"to_name": null,
"type": null,
"value": {
"end": 20719,
"labels": [
"ANALYSIS"
],
"start": 20532,
"text": "Consequently, sub-section (2) to Section 167 of the Code would not be attracted as the CBI could not have submitted a police report in terms of sub-section (2) to Section 173 of the Code."
}
},
{
"from_name": null,
"id": "e28ad7a07ca14d4fa3498dfeb7b8bb4a",
"to_name": null,
"type": null,
"value": {
"end": 20852,
"labels": [
"ANALYSIS"
],
"start": 20720,
"text": "Jeewan Kumar Raut (supra) was, thus, dealing with a contention and issue entirely different from the one raised in the present case."
}
},
{
"from_name": null,
"id": "6f97a400937b42898894864721d127aa",
"to_name": null,
"type": null,
"value": {
"end": 20993,
"labels": [
"ANALYSIS"
],
"start": 20853,
"text": "It is undisputed that decisions of the courts cannot be blindly applied in disjunction of the factual circumstances and issues of each case."
}
},
{
"from_name": null,
"id": "0e521cb5b2f247f6bcca06d3efb58fd9",
"to_name": null,
"type": null,
"value": {
"end": 21198,
"labels": [
"ANALYSIS"
],
"start": 20994,
"text": "The court decisions expound on the law as applicable to the specific circumstances of each case and such exposition may not therefore be necessarily applicable to another case given its own peculiarities."
}
},
{
"from_name": null,
"id": "bae1422660ac483f83338d8275ffdd0e",
"to_name": null,
"type": null,
"value": {
"end": 21293,
"labels": [
"ANALYSIS"
],
"start": 21199,
"text": "Therefore, the contention predicated on the ratio in Jeewan Kumar Raut (supra) holds no merit."
}
},
{
"from_name": null,
"id": "d58d4d98ff614bfd9a8ff03fbdce23df",
"to_name": null,
"type": null,
"value": {
"end": 21373,
"labels": [
"ANALYSIS"
],
"start": 21293,
"text": "\n Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 14 of 17 11."
}
},
{
"from_name": null,
"id": "43864393e73441d19e066c0a72d49cd7",
"to_name": null,
"type": null,
"value": {
"end": 21827,
"labels": [
"PRE_RELIED"
],
"start": 21374,
"text": "We would again advert to the decision in Sanjay (supra) which had overruled the decision of the Calcutta High Court in Seema Sarkar v. State17 wherein the High Court held the proceedings to be invalid and illegal as the Magistrate had taken cognizance on the basis of a charge-sheet submitted by the police under Section 21(2) of the Mines Regulation Act and Section 379 of the IPC, observing that the cognizance was one that cannot be split or divided."
}
},
{
"from_name": null,
"id": "74aa883b264e4e978bf9b98d698a5c0e",
"to_name": null,
"type": null,
"value": {
"end": 21994,
"labels": [
"ANALYSIS"
],
"start": 21828,
"text": "The High Court had further observed that as the complaint was not made in terms of Section 22 of the Mines Regulation Act, the cognizance was bad and contrary to law."
}
},
{
"from_name": null,
"id": "d6e8d023805b4343bc8118f903677de5",
"to_name": null,
"type": null,
"value": {
"end": 22205,
"labels": [
"ANALYSIS"
],
"start": 21995,
"text": "We have already noted the decision of the Delhi High Court which had directed that the FIR should not be treated as registered under Section 379 of the IPC but only under Section 21 of the Mines Regulation Act."
}
},
{
"from_name": null,
"id": "f889a054066a4aaf89dea64958e875f1",
"to_name": null,
"type": null,
"value": {
"end": 22588,
"labels": [
"ANALYSIS"
],
"start": 22206,
"text": "These decisions of the Calcutta High Court and the Delhi High Court were reversed and set aside by this Court in Sanjay (supra) after referring to Section 26 of the General Clauses Act and the meaning of the expression `same offence', to observe that the offence under Section 21 read with Section 4 of the Mines Regulation Act and Section 379 of the IPC are different and distinct."
}
},
{
"from_name": null,
"id": "03f32e754b534a218c7fb1ddbe9248b9",
"to_name": null,
"type": null,
"value": {
"end": 22982,
"labels": [
"ANALYSIS"
],
"start": 22589,
"text": "The aforesaid reasoning compels us to reject the contention of the appellant that the action as impugned in the FIR 17 (1995) 1 Cal LT 95 Page 15 of 17 Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 is a mere violation of Section 4 which is an offence cognizable only under Section 21 of the Mines Regulation Act and not under any other law."
}
},
{
"from_name": null,
"id": "7472a5d2878d4524aca473f0c69efb82",
"to_name": null,
"type": null,
"value": {
"end": 23079,
"labels": [
"ANALYSIS"
],
"start": 22983,
"text": "There is no bar on the Court from taking cognizance of the offence under Section 379 of the IPC."
}
},
{
"from_name": null,
"id": "94bc72231a8746b2beba90fea0611437",
"to_name": null,
"type": null,
"value": {
"end": 23306,
"labels": [
"ANALYSIS"
],
"start": 23080,
"text": "We would also observe that the violation of Section 4 being a cognizable offence, the police could have always investigated the same, there being no bar under the Mines Regulation Act, unlike Section 13(3)(iv) of the TOHO Act."
}
},
{
"from_name": null,
"id": "c475050f0b96482b9a38885c900d1488",
"to_name": null,
"type": null,
"value": {
"end": 23594,
"labels": [
"RPC"
],
"start": 23306,
"text": "\n 12. In view of the aforesaid discussion, we would uphold the order of the High Court refusing to set aside the prosecution and cognizance of the offence taken by the learned Magistrate under Section 379 of the IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act."
}
},
{
"from_name": null,
"id": "f97378995a824a948543e8cdc5a6e710",
"to_name": null,
"type": null,
"value": {
"end": 23787,
"labels": [
"RPC"
],
"start": 23595,
"text": "We would, however, clarify that prosecution and cognizance under Section 21 read with Section 4 of the Mines Regulation Act will not be valid and justified in the absence of the authorisation."
}
},
{
"from_name": null,
"id": "49432cb1c5844fee80102265ac5154a4",
"to_name": null,
"type": null,
"value": {
"end": 23949,
"labels": [
"RPC"
],
"start": 23788,
"text": "Further, our observations in deciding and answering the legal issue before us should not be treated as findings on the factual allegations made in the complaint."
}
},
{
"from_name": null,
"id": "a9fac4cee36346b981eac9484235a1fa",
"to_name": null,
"type": null,
"value": {
"end": 24073,
"labels": [
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],
"start": 23950,
"text": "The trial court would independently apply its mind to the factual allegations and decide the charge in accordance with law."
}
},
{
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"id": "30b846eac030411eb5f99b77d4e04fb1",
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"type": null,
"value": {
"end": 24384,
"labels": [
"RPC"
],
"start": 24074,
"text": "In light of the aforesaid observations, the appeal is partly allowed, as we have Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 16 of 17 upheld the prosecution and cognizance of the offence under Section 379 of the IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act."
}
},
{
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"id": "32c9a22711c847a383210c49d1e3bed4",
"to_name": null,
"type": null,
"value": {
"end": 24421,
"labels": [
"RPC"
],
"start": 24385,
"text": "There would be no order as to costs."
}
},
{
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"id": "c0c2ccb920454d6fba3aa5295a50e508",
"to_name": null,
"type": null,
"value": {
"end": 24540,
"labels": [
"NONE"
],
"start": 24423,
"text": "......................................J.\n (S. ABDUL NAZEER)"
}
},
{
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"to_name": null,
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"end": 24650,
"labels": [
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],
"start": 24541,
"text": "......................................J.\n "
}
},
{
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"value": {
"end": 24665,
"labels": [
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],
"start": 24650,
"text": "(SANJIV KHANNA)"
}
},
{
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"id": "3f75dcd9051749de981acbfc96ea85b3",
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"end": 24695,
"labels": [
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],
"start": 24666,
"text": "NEW DELHI; DECEMBER 18, 2019."
}
},
{
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"text": "\n Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 17 of 17"
}
}
]
}
] | 4,140 | {
"text": " REPORTABLE\n IN THE SUPREME COURT OF INDIA\n CRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL APPEAL NO.1920 OF 2019\nARISING OUT OF S.L.P.(CRIMINAL) NO. 10707 OF 2019\n\nKANWAR PAL SINGH ..... APPELLANT(S)\n\n VERSUS\n\nTHE STATE OF UTTAR PRADESH AND .....\n\nANOTHER RESPONDENT(S)\n\n J U D G M E N T\n SANJIV KHANNA, J.\n Leave granted.\n 2. Kanwar Pal Singh, the appellant, impugns the order dated 22nd July 2019 whereby the High Court of Judicature at Allahabad has dismissed his petition under Section 482 of the Code of Criminal Procedure, 1973 (`Code' for short) for quashing criminal prosecution under Section 379 of the Indian Penal Code, 1860 (`IPC' for short), Rules 3, 57 and 7 of the Uttar Pradesh Minor Mineral (Concession) Rules, 1963, Sections 4 and 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (`Mines Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 1 of 17 Regulation Act' for short), and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 arising out of Crime Case No. 289 of 2018, Police Station Vindyachal, District Mirzapur, Uttar Pradesh. The appellant had also challenged, without success before the High Court, the order dated 8th February 2019 passed by the Chief Judicial Magistrate taking cognizance and summoning the appellant for trial.\n 3. In brief, the facts of the case are that on the basis of a complaint filed by one Mr. S.K. Pal, Surveyor, Mines Department, District Mirzapur, FIR No. 0289 dated 15th November 2018 was registered at Police Station, Vindyachal, inter alia recording that on 2nd November 2018, during inspection of the mining site in Village Nandni, Tehsil Sadar, District Mirzapur, the Nayab Tehsildar had noticed illegal mining whereupon a report vide letter dated 12th November 2018 was submitted to the Sub-Divisional Magistrate, Sadar. The appellant is a Director of M/s. Kanwar Enterprises Pvt.\n Ltd., which was granted rights to excavate sand vide mining lease over Plot No. 2/4, measuring 12.35 acre and Plot No. 2/5 measuring 12.35 acre in Village Nandni. However, it is alleged that the appellant was mining sand outside the permitted area in Village Babhni numbered as 534/2 where he had illegally excavated a pit 50 feet long, 50 feet wide and 2 meter deep.\n Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 2 of 17 Consequently, the District Magistrate had ordered for immediate registration of the FIR under the aforesaid provisions.\n 4. Though a number of contentions were raised before the High Court, the learned senior counsel for the appellant has during the course of arguments before us restricted his submissions to the violation of Section 22 of the Mines Regulation Act and the legal effect thereof. Referring to the contents of the FIR, it is submitted that the appellant has been wrongly charge-sheeted by the police for the offences, as at the best there was violation of Section 4, which is punishable under Section 21 of the Mines Regulation Act.\n It is highlighted that M/s. Kanwar Enterprises Pvt. Ltd. had held a valid lease for mining. As per Section 22 no court can take cognizance of the offences under the Mines Regulation Act, except on a complaint in writing by a person authorised by the Central or State Government. The State police not being authorised, could not have filed the charge-sheet/complaint. The contention predicated on Section 22 of the Mines Regulation Act is made by relying upon the judgment of this Court in Jeewan Kumar Raut and Another v. Central Bureau of Investigation1.\n In the written submissions filed by the appellant, a relatively new plea and contention has been raised by relying upon the 1 (2009) 7 SCC 526 Page 3 of 17 Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 judgments of this Court in Belsund Sugar Company Limited v.\n State of Bihar,2 Sharat Babu Digumarti v. Government of NCT of Delhi3 and Suresh Nanda v. Central Bureau of Investigation4 to urge that the Mines Regulation Act being a special statute, prosecution for an offence under Section 379 of the IPC would not be maintainable. The judgment of this Court in State (NCT of Delhi) v. Sanjay.5, it is submitted, is distinguishable as the FIR for the offence against illegal sand mining in Sanjay (supra) was registered suo moto due to non-production of any document to establish mining rights and therefore, the ratio in that case would apply only to cases of illegal mining where the mining lease had already been revoked or there was no subsisting mining lease.\n 5. We find the submission of the appellant to be untenable. In Sanjay (supra), a Division Bench of this Court had decided appeals preferred against the conflicting judgments of the Delhi High Court, Gujarat High Court, Kerala High Court, Calcutta High Court, Madras High Court and Jharkhand High Court on the question whether a person can be prosecuted for the offences under Sections 379/114 and other provisions of the IPC on the 2 (1999) 9 SCC 620 Page 4 of 17 3 (2017) 2 SCC 18 4 (2008) 3 SCC 674 5 (2014) 9 SCC 772 Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 allegations of illegal mining in view of Section 22 of the Mines Regulation Act, which reads as under: \"22. Cognizance of offences.-- No court shall take cognizance of any offence punishable under this Act or any rules made thereunder except upon complaint in writing made by a person authorised in this behalf by the Central Government or the State Government.\"\n After adverting to the provisions of the Code, namely, Sections 2(c), 2(d) and 2(h) which define `cognizable offence', `complaint' and `investigation' respectively, this Court had referred to Section 4 of the Code, which reads as under: \"4. Trial of offences under the Indian Penal Code and other laws.-- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.\n (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.\"\n As per sub-section (2) to Section 4, all offences under any law, other than the IPC, can be investigated, inquired into and tried under the Code, subject to any enactment regulating the manner or place of investigation, trial etc. of such offences. Section 21 of the Mines Regulation Act, it was observed, states that the offences specified thereunder are cognizable. Section 41 of the Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 5 of 17 Code was referred to elucidate that the police has the power to arrest without warrant in case of cognizable offences. Sections 149 to 152 of Chapter XI of the Code that require the police to prevent cognizable offences either by arrest or otherwise, etc.\nwere referred, to hold that the aforementioned provisions show that a police officer of his own authority has the duty to prevent any injury attempted to be committed to any public property or national assets and also to prosecute such persons in accordance with law.\n Accordingly, in Sanjay (supra) it was held that the investigation of the offences is within the domain of the police and the power of a police officer to investigate into cognizable offences is not ordinarily impinged by any fetters albeit the power must be exercised as per the statutory provisions and for legitimate purposes. The courts would interfere only when while examining the case they find that the police officer in exercise of the investigatory powers has breached the statutory provisions and put the personal liberty and/or the property of a citizen in jeopardy by an illegal and improper use of the powers or when the investigation by the police is not found to be bona fide or when the investigation is tainted with animosity. While examining the issue, Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 6 of 17 this Court in Sanjay (supra) took notice of the decision in H.N.\n Rishbud v. State of Delhi6 wherein this Court has held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to the taking of the cognizance or trial. The cardinal principle of law as noted by this Court in Directorate of Enforcement v. Deepak Mahajan7 is that every law is designed to further the ends of justice and should not be frustrated on mere technicalities. The public trust doctrine was cited and applied to underscore the principle that certain resources like air, sea, water, forests and minerals are of great importance to the people as a whole and that the government is enjoined to hold such resources in trust for the benefit of the general public and to use them for their benefit than to serve private interests.\n 6. This Court in Sanjay (supra) has cited several decisions wherein the challenge to the prosecution on the ground that there can be no multiplicity of offences under different enactments was resolved and answered by relying upon Section 26 of the General Clauses Act, which we would like to reproduce for the sake of convenience: 6 AIR 1955 SC 196 Page 7 of 17 7 (1994) 3 SCC 440 Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 \"26. Provision as to offences punishable under two or more enactments.-- Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.\"\n Section 26 of the General Clauses Act permits prosecution for `different offences' but bars prosecution and punishment twice for the `same offence' under two or more enactments. The expression `same offence' has been interpreted by this Court in numerous decisions viz., Maqbool Hussain v. State of Bombay8 with reference to the provisions of the Sea Customs Act and the Foreign Exchange Regulation Act, 1947; Om Parkash Gupta v.\n State of U.P.9 and State of Madhya Pradesh v. Veereshwar Rao Agnihotri10 with reference to Section 409 of the IPC and Section 5(2) of the Prevention of Corruption Act; T.S. Baliah v. ITO11 with reference to Section 52 of the Income Tax Act, 1922 and Section 177 of the IPC; Collector of Customs v. Vasantraj Bhagwanji Bhatia12, with reference to the provisions of the Customs Act 1962 and the provisions of the Gold (Control) Act, 1968; State of Bihar v. Murad Ali Khan13 with reference to the provisions of Sections 447, 429 and 379 of the IPC and provisions of the Wildlife 8 AIR 1953 SC 325 Page 8 of 17 9 AIR 1957 SC 458 10 AIR 1957 SC 592 11 AIR 1969 SC 701 12 (1988) 3 SCC 467 13 (1988) 4 SCC 655 Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 (Protection) Act, 1972; Avtar Singh v. State of Punjab14 with reference to Section 39 of the Electricity Act, 1910 and the provisions of theft under the IPC; and Institute of Chartered Accountants of India v. Vimal Kumar Surana15 with reference to the provisions of the Chartered Accountants Act, 1949 and offences under Sections 419, 468, 471 and 472 of the IPC.\n Elucidating on the provisions of Section 4 read with Sections 21 and 22 of the Mines Regulation Act and the offence under Section 379 of the IPC, it was observed in Sanjay (supra): \"69. Considering the principles of interpretation and the wordings used in Section 22, in our considered opinion, the provision is not a complete and absolute bar for taking action by the police for illegal and dishonestly committing theft of minerals including sand from the riverbed. The Court shall take judicial notice of the fact that over the years rivers in India have been affected by the alarming rate of unrestricted sand mining which is damaging the ecosystem of the rivers and safety of bridges. It also weakens riverbeds, fish breeding and destroys the natural habitat of many organisms. If these illegal activities are not stopped by the State and the police authorities of the State, it will cause serious repercussions as mentioned hereinabove. It will not only change the river hydrology but also will deplete the groundwater levels.\n 70. There cannot be any dispute with regard to restrictions imposed under the MMDR Act and remedy provided therein.\n In any case, where there is a mining activity by any person in contravention of the provisions of Section 4 and other sections of the Act, the officer empowered and authorised under the Act shall exercise all the powers including making a complaint before the Jurisdictional Magistrate. It is also not in dispute that the Magistrate shall in such cases take 14 AIR 1965 SC 666 15 (2011) 1 SCC 534 Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 9 of 17 cognizance on the basis of the complaint filed before it by a duly authorised officer. In case of breach and violation of Section 4 and other provisions of the Act, the police officer cannot insist the Magistrate for taking cognizance under the Act on the basis of the record submitted by the police alleging contravention of the said Act. In other words, the prohibition contained in Section 22 of the Act against prosecution of a person except on a complaint made by the officer is attracted only when such person is sought to be prosecuted for contravention of Section 4 of the Act and not for any act or omission which constitutes an offence under the Penal Code.\n 71. However, there may be a situation where a person without any lease or licence or any authority enters into river and extracts sand, gravel and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Penal Code.\n 72. From a close reading of the provisions of the MMDR Act and the offence defined under Section 378 IPC, it is manifest that the ingredients constituting the offence are different. The contravention of terms and conditions of mining lease or doing mining activity in violation of Section 4 of the Act is an offence punishable under Section 21 of the MMDR Act, whereas dishonestly removing sand, gravel and other minerals from the river, which is the property of the State, out of the State's possession without the consent, constitute an offence of theft. Hence, merely because initiation of proceeding for commission of an offence under the MMDR Act on the basis of complaint cannot and shall not debar the police from taking action against persons for committing theft of sand and minerals in the manner mentioned above by exercising power under the Code of Criminal Procedure and submit a report before the Magistrate for taking cognizance against such persons. In other words, in a case where there is a theft of sand and gravel from the government land, the police can register a case, investigate the same and submit a final report under Section 173 CrPC before a Magistrate having jurisdiction for the purpose of taking cognizance as provided in Section 190(1)(d) of the Code of Criminal Procedure.\"\n (emphasis supplied) Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 10 of 17 7. As noticed above, in the written submissions the appellant has relied upon Belsund Sugar Company Limited (supra), Sharat Babu Digumarti (supra) and Suresh Nanda (supra) to contend that where there is a special act dealing with a special subject, resort cannot be taken to a general act. The said submission has no force in view of the ratio in Sanjay (supra) as quoted above which specifically refers to Section 26 of the General Clauses Act and states that the offence under Section 4 read with Section 21 of the Mines Regulation Act is different from the offence punishable under Section 379 of the IPC. Thus, they are two `different' and not the `same offence'. It would be relevant to state here that the Delhi High Court in its decision reported as Sanjay v. State16, which was impugned in Sanjay (supra), had accepted an identical argument to hold that once an offence is punishable under Section 21 of the Mines Regulation Act, the offence would not be punishable under Section 379 of the IPC. This reasoning was rejected by this Court and the judgment of the Delhi High Court was reversed. The contention relying on the same reasoning before us, therefore, must be rejected.\n 8. We would also reject the contention raised by the appellant in the 16 (2009) 109 DRJ 594 Page 11 of 17 Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 written submissions that the alleged theft of sand is not punishable under Section 379 read with Section 378 of the IPC as sand is an immovable property as per Section 3 (26) of the General Clauses Act. In the present case, sand had been excavated and was thereupon no longer an immovable property. The sand on being excavated would lose its attachment to the earth, ergo, it is a movable property or goods capable of being stolen. {See Explanation 1 to Section 378 of the IPC and Sanjay (supra) as quoted above} 9. We would in the end refer to the judgment in Jeewan Kumar Raut (supra) on which considerable reliance was placed by the appellant at the time of the hearing. The said judgment was distinguished in Institute of Chartered Accountants (supra) by observing that the provisions of the Transplantation of Human Organs Act, 1994 (`TOHO Act' for short) were different and were not similar to the provisions of sub-section 2 to Section 24-A, 25 and 26 of the Chartered Accountants Act as the TOHO Act is hedged with a non-obstante clause. We would like to further elucidate and explain that in Jeewan Kumar Raut (supra) this Court was examining the right of the appellant therein to claim statutory bail in terms of sub-section (2) to Section 167 of the Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 12 of 17 Code on the ground that the Central Bureau of Investigation (`CBI' for short) had failed to file the charge-sheet within 90 days from the date of arrest. Relying on Section 22 of the TOHO Act, which mandates filing of a complaint by a person duly authorised by a competent authority, it was observed that the TOHO Act is a special law which deals with the subjects mentioned therein, viz., offences relating to the removal of human organs, etc. Ordinarily, any person can set the criminal law into motion but the legislature keeping in view the sensitivity and importance of the subject had provided that the violations under the TOHO Act would be dealt with by the authorities specified therein. Thereafter, reference was made to Section 4 of the Code as cited above, to hold that the TOHO Act being a special Act, the matters relating to offences covered thereunder would be governed by the provisions of said Act, which would prevail over the provisions of the Code.\nReference was made to clause (iv) of sub-section (3) to Section 13 of the TOHO Act which states that the appropriate authority shall investigate any complaint of breach of any of the provisions of the said Act or any rules made thereunder and take appropriate action. There is no similar provision under the Mines Regulation Act i.e. the Mines and Minerals (Development and Regulation) Act, 1957.\n Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 13 of 17 10. In Jeewan Kumar Raut (supra), it was noted that the CBI has been designated as an appropriate authority under the provisions of the TOHO Act and therefore entitled to carry on investigation. In this context, it was observed that Section 22 of the TOHO Act prohibits taking of cognizance except on a complaint made by an appropriate authority and therefore the police report filed by the CBI was only a complaint petition made by an appropriate authority in terms of Section 22 of the TOHO Act. Consequently, sub-section (2) to Section 167 of the Code would not be attracted as the CBI could not have submitted a police report in terms of sub-section (2) to Section 173 of the Code. Jeewan Kumar Raut (supra) was, thus, dealing with a contention and issue entirely different from the one raised in the present case. It is undisputed that decisions of the courts cannot be blindly applied in disjunction of the factual circumstances and issues of each case. The court decisions expound on the law as applicable to the specific circumstances of each case and such exposition may not therefore be necessarily applicable to another case given its own peculiarities. Therefore, the contention predicated on the ratio in Jeewan Kumar Raut (supra) holds no merit.\n Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 14 of 17 11. We would again advert to the decision in Sanjay (supra) which had overruled the decision of the Calcutta High Court in Seema Sarkar v. State17 wherein the High Court held the proceedings to be invalid and illegal as the Magistrate had taken cognizance on the basis of a charge-sheet submitted by the police under Section 21(2) of the Mines Regulation Act and Section 379 of the IPC, observing that the cognizance was one that cannot be split or divided. The High Court had further observed that as the complaint was not made in terms of Section 22 of the Mines Regulation Act, the cognizance was bad and contrary to law. We have already noted the decision of the Delhi High Court which had directed that the FIR should not be treated as registered under Section 379 of the IPC but only under Section 21 of the Mines Regulation Act. These decisions of the Calcutta High Court and the Delhi High Court were reversed and set aside by this Court in Sanjay (supra) after referring to Section 26 of the General Clauses Act and the meaning of the expression `same offence', to observe that the offence under Section 21 read with Section 4 of the Mines Regulation Act and Section 379 of the IPC are different and distinct. The aforesaid reasoning compels us to reject the contention of the appellant that the action as impugned in the FIR 17 (1995) 1 Cal LT 95 Page 15 of 17 Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 is a mere violation of Section 4 which is an offence cognizable only under Section 21 of the Mines Regulation Act and not under any other law. There is no bar on the Court from taking cognizance of the offence under Section 379 of the IPC. We would also observe that the violation of Section 4 being a cognizable offence, the police could have always investigated the same, there being no bar under the Mines Regulation Act, unlike Section 13(3)(iv) of the TOHO Act.\n 12. In view of the aforesaid discussion, we would uphold the order of the High Court refusing to set aside the prosecution and cognizance of the offence taken by the learned Magistrate under Section 379 of the IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act. We would, however, clarify that prosecution and cognizance under Section 21 read with Section 4 of the Mines Regulation Act will not be valid and justified in the absence of the authorisation. Further, our observations in deciding and answering the legal issue before us should not be treated as findings on the factual allegations made in the complaint. The trial court would independently apply its mind to the factual allegations and decide the charge in accordance with law. In light of the aforesaid observations, the appeal is partly allowed, as we have Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 16 of 17 upheld the prosecution and cognizance of the offence under Section 379 of the IPC and Sections 3 and 4 of the Prevention of Damage to Public Property Act. There would be no order as to costs.\n ......................................J.\n (S. ABDUL NAZEER) ......................................J.\n (SANJIV KHANNA) NEW DELHI; DECEMBER 18, 2019.\n Criminal Appeal arising out of SLP (Crl.) No. 10707 of 2019 Page 17 of 17 "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "dcb54ea3b8e84ae6bad8bed44da61408",
"to_name": null,
"type": null,
"value": {
"end": 69,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX, BOMBAY CITY-1, BOMBAY\n\n Vs."
}
},
{
"from_name": null,
"id": "25ee3d1a66ea4bce8e8a329e23a6b32d",
"to_name": null,
"type": null,
"value": {
"end": 167,
"labels": [
"PREAMBLE"
],
"start": 69,
"text": "\n\nRESPONDENT:\nNATIONAL STORAGE PVT. LTD., BOMBAY\n\nDATE OF JUDGMENT:\n26/04/1967\n\nBENCH:\nSIKRI, S.M."
}
},
{
"from_name": null,
"id": "90434b5ee7bc4d8387927b304c89f6e9",
"to_name": null,
"type": null,
"value": {
"end": 781,
"labels": [
"PREAMBLE"
],
"start": 168,
"text": "BENCH:\nSIKRI, S.M.\nSHAH, J.C.\nRAMASWAMI, V.\n\nCITATION:\n\n1968 AIR 70 1967 SCR (3) 813\n (13)\nCITATOR INFO :\n\nR 1972 SC2315\n\nACT:\nIndian Income-tax Act (11 of 1922), ss. 9 & 10-Assessee's\npremises hired out-Not an ordinary lease but for purposes of\nits own business-Assessment under which head.\n\nHEADNOTE:\nThe assessee-Company was promoted because the Government of\nIndia promulgated the Cinematograph Rules, 1948, according\nto which distributors of films were required to store films\nin godowns constructed in conformity with the specifications\nlaid down in the Rules."
}
},
{
"from_name": null,
"id": "ab9c1de1d25e445d824eea9fdbab1ae4",
"to_name": null,
"type": null,
"value": {
"end": 1015,
"labels": [
"PREAMBLE"
],
"start": 782,
"text": "The assesses constructed vaults of\nspecial design with special doors and electrical fittings as\nrequired and entered into agreements with several\ndistributors who became vault-holders paying certain amounts\nfor the use of the vaults."
}
},
{
"from_name": null,
"id": "b76cca556792481f88bc01663225fe3b",
"to_name": null,
"type": null,
"value": {
"end": 1190,
"labels": [
"PREAMBLE"
],
"start": 1016,
"text": "The key to each vault was\nretained by the vault-holder, but the key to the entrance\nwhich permitted access to the vaults was kept in the\nexclusive possession of the assessee."
}
},
{
"from_name": null,
"id": "e8209274cb3e491ca4a522d2bb9179fb",
"to_name": null,
"type": null,
"value": {
"end": 1403,
"labels": [
"PREAMBLE"
],
"start": 1191,
"text": "The assessee rendered\nvaluable service to the vault-holders by installing a fire\nalarm, by opening Railway Booking Offices in the premises\nand by employing a regular staff, and incurred the necessary\nexpenditure."
}
},
{
"from_name": null,
"id": "96da61785e304377b80f4bde03938c84",
"to_name": null,
"type": null,
"value": {
"end": 1564,
"labels": [
"PREAMBLE"
],
"start": 1404,
"text": "The vaults were used for the specific purpose\nof storing films and other activities connected with the\nexamination, cleaning, waxing and rewinding of the films."
}
},
{
"from_name": null,
"id": "acc2eb2c18984bf4b8557ce6d8bf6b04",
"to_name": null,
"type": null,
"value": {
"end": 1896,
"labels": [
"PREAMBLE"
],
"start": 1564,
"text": "\nOn the question whether the assessee was to be assessed to\nIncometax under s. 9 or s. 10 of the Income-tax Act, 1922,\nHELD : The assessee was carrying on business, that is,\ncarrying on an adventure or concern in the nature of trade\nin the premises, and was therefore liable to be assessed\nunder s. 10 and not under s. 9 of the Act."
}
},
{
"from_name": null,
"id": "13ea579a6772474dadf0fe9a65658a0a",
"to_name": null,
"type": null,
"value": {
"end": 2526,
"labels": [
"PREAMBLE"
],
"start": 1896,
"text": "\nThe Act does not contemplate assessment of property under s.\n9 in respect of the rental income and assessment under s. 10\nin respect of the extra income derived from the carrying on\nof an adventure or concern in the nature of trade if the\nassessee is in occupation of the premises for the purpose of\nthe business. The scheme of the Act is that the various\nheads of income, profits and gains enumerated in s. 6 are\nmutually exclusive, each head being specific to cover the\nitem arising from a particular source, and whether an income\n\nfalls under one head or another has to be decided according\nto common notions of practical men."
}
},
{
"from_name": null,
"id": "68c342abf649448a862827eeb3724ef4",
"to_name": null,
"type": null,
"value": {
"end": 2795,
"labels": [
"PREAMBLE"
],
"start": 2527,
"text": "In the present case,\nthe agreements are licences and not leases, the assessee\nbeing in occupation of all the premises for purposes of its\nown concern, namely, the hiring out of specially built\nvaults and providing services to the vault-holders, who were\nthe licensees."
}
},
{
"from_name": null,
"id": "89b70145753b44b5b729273fbcb3aa97",
"to_name": null,
"type": null,
"value": {
"end": 3028,
"labels": [
"PREAMBLE"
],
"start": 2796,
"text": "The subject which was hired out was a\ncomplex one and the return received by 'the assessee was not\nincome derived from the exercise of property rights, but was\nderived from carrying on an adventure or concern in the\nnature of trade."
}
},
{
"from_name": null,
"id": "a49c4d253fee45ea9144ca2c9e3be743",
"to_name": null,
"type": null,
"value": {
"end": 3128,
"labels": [
"PREAMBLE"
],
"start": 3029,
"text": "[8l8C; [S20C-F]\nThe Governors of the Rotunda Hospital, Dublin v. Coman, 7\nT.C. (H.L.) 517, applied."
}
},
{
"from_name": null,
"id": "76b24d58368c4b499d0575a55ee7e7aa",
"to_name": null,
"type": null,
"value": {
"end": 3139,
"labels": [
"PREAMBLE"
],
"start": 3128,
"text": "\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "ee07ee3873304d1482ed405d65e36f5f",
"to_name": null,
"type": null,
"value": {
"end": 3331,
"labels": [
"NONE"
],
"start": 3139,
"text": "\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1048- 1051 of 1966.Appeals from the judgment and order dated July 2, 3, 1962 of the Bombay High Court in Income-tax Reference No. 45 of 1960."
}
},
{
"from_name": null,
"id": "b265c2c52537445eb5ea8b05f889f6e4",
"to_name": null,
"type": null,
"value": {
"end": 3525,
"labels": [
"NONE"
],
"start": 3331,
"text": "\nT. V. Viswanatha Iyer, A. N. Kirpal and R. N. Sachthey, for the appellant (in all the appeals).\nS. T. Desai, F. N. Kaka, S. K. Dholakia and 0. C. Mathur for the respondent (in all the appeals)."
}
},
{
"from_name": null,
"id": "b977629502ca4c5fa8972570c274655b",
"to_name": null,
"type": null,
"value": {
"end": 3578,
"labels": [
"NONE"
],
"start": 3525,
"text": "\nThe Judgment of the Court was delivered by Sikri, J."
}
},
{
"from_name": null,
"id": "d237c963763a4b768252b9f9e0d2dcab",
"to_name": null,
"type": null,
"value": {
"end": 3988,
"labels": [
"FAC"
],
"start": 3579,
"text": "These appeals by certificate granted by the Bombay High Court under S. 66A(2) of the Indian Income-tax Act, 1925 -hereinafter referred to as the Act-are directed against its judgment in Income-tax Reference No. 45 of 1960 by which it answered the first question of law referred to it by the Income-tax Appellate Tribunal in favour of the National Storage Ltd., Bombay, hereinafter referred to as the assessee."
}
},
{
"from_name": null,
"id": "c7e3ebd88273440ab901d0069d16cba3",
"to_name": null,
"type": null,
"value": {
"end": 4345,
"labels": [
"FAC"
],
"start": 3989,
"text": "The following questions were referred to the High Court by the Appellate Tribunal at the instance of the Commissioner of Income-tax, Bombay City-1, Bombay : \"1. Whether on the facts and circumstances of the case, the vaults were used for the purposes of the business and income arising therefrom is assessable under Section 10 ?\n 2."
}
},
{
"from_name": null,
"id": "a096654694cf4e6da418261b88c74c2c",
"to_name": null,
"type": null,
"value": {
"end": 4459,
"labels": [
"FAC"
],
"start": 4346,
"text": "If the answer to question I is in the negative, whether the income is assessable under Section 9 or Section 12 ?\""
}
},
{
"from_name": null,
"id": "e21b3dc89ae54f15b51a0c9c38698610",
"to_name": null,
"type": null,
"value": {
"end": 4918,
"labels": [
"FAC"
],
"start": 4460,
"text": "The relevant facts and circumstances are as follows :-The assessee was promoted because the Government of India promulgated the Cinematograph Film Rules, 1948, hereinafter referred to as the Film Rules according to which the distributors were required to store films only in godowns constructed strictly in conformity with the specifications laid down in the Film Rules and in a place to be approved by the Chief Inspector of Explosives, Government of India."
}
},
{
"from_name": null,
"id": "1e24deb9fe0f4aa7848a94e7bf6d1b80",
"to_name": null,
"type": null,
"value": {
"end": 5245,
"labels": [
"FAC"
],
"start": 4919,
"text": "A place at Mahim was approved and the assessee, after purchasing a plot of land there constructed 13 units thereon, 12 units meant for the Members of the Indian Motion Picture Distributors' Association, who had floated the Company, and one unit for Foreign Film Distributors in Bombay, who were not members of the Association."
}
},
{
"from_name": null,
"id": "d0775114efc74f51b157bc5edef396ba",
"to_name": null,
"type": null,
"value": {
"end": 5371,
"labels": [
"FAC"
],
"start": 5246,
"text": "Each unit was divided into four vaults, having a ground floor for rewinding of films and an upper floor for storage of films."
}
},
{
"from_name": null,
"id": "32bfa470d02e4c8db0ab31c06b1af120",
"to_name": null,
"type": null,
"value": {
"end": 5491,
"labels": [
"FAC"
],
"start": 5372,
"text": "These units were constructed in conformity with the requirements of and the specifications laid down in the Film Rules."
}
},
{
"from_name": null,
"id": "2af02c190a564d6da308151284aa85d8",
"to_name": null,
"type": null,
"value": {
"end": 5664,
"labels": [
"FAC"
],
"start": 5492,
"text": "The walls and ceilings were of a particular width and automatic fire proof door was installed in one wall which would close immediately on the outbreak offire in the vault."
}
},
{
"from_name": null,
"id": "e89edaca3fc44e028bc52dcc785114cf",
"to_name": null,
"type": null,
"value": {
"end": 5750,
"labels": [
"FAC"
],
"start": 5665,
"text": "Other walls had no opening or window and one ventilation was provided in the ceiling."
}
},
{
"from_name": null,
"id": "cc25e8edc46f404db0d1a7a31a2251c6",
"to_name": null,
"type": null,
"value": {
"end": 5814,
"labels": [
"FAC"
],
"start": 5751,
"text": "The units were built at a distance of 50 feet from one another."
}
},
{
"from_name": null,
"id": "008ec958b397450785628895429c6c62",
"to_name": null,
"type": null,
"value": {
"end": 5879,
"labels": [
"FAC"
],
"start": 5815,
"text": "The assessee entered into agreements with the film distributors."
}
},
{
"from_name": null,
"id": "8dafac824bcb4a2dbe45acf55dc186f0",
"to_name": null,
"type": null,
"value": {
"end": 5979,
"labels": [
"FAC"
],
"start": 5879,
"text": "\nThere were two types of agreements, one was classified as 'A' Licence and the other as 'B' Licence."
}
},
{
"from_name": null,
"id": "ac4b8a6d868e436f92c2122c0cde8a16",
"to_name": null,
"type": null,
"value": {
"end": 6069,
"labels": [
"FAC"
],
"start": 5980,
"text": "The agreements were more or less in identical terms with minor variations here and there."
}
},
{
"from_name": null,
"id": "a8d590df568d467c80fcc3c7be920ef0",
"to_name": null,
"type": null,
"value": {
"end": 6191,
"labels": [
"FAC"
],
"start": 6070,
"text": "One agreement has been annexed to the statement of the case as annexure 'A' and some of the relevant clauses are as under"
}
},
{
"from_name": null,
"id": "f528721c94c44df2b35bea825314d90f",
"to_name": null,
"type": null,
"value": {
"end": 6448,
"labels": [
"FAC"
],
"start": 6192,
"text": ": Clause 2 provides that the licensee shall not use the vault for any other purpose except for storing cinema films and shall use the ground floor (examination room) only for the purpose of examination, repairs, cleaning, waxing and rewinding of the films."
}
},
{
"from_name": null,
"id": "b2757dbaa124421f9aac527722145863",
"to_name": null,
"type": null,
"value": {
"end": 6673,
"labels": [
"FAC"
],
"start": 6449,
"text": "According to clause 9, the licensee could not transfer, assign, sublet, underlet or grant any licence in respect of or part with the possession of the vault or any part thereof without the written permission of the assessee."
}
},
{
"from_name": null,
"id": "3e12722c3907453a979b2554439891b2",
"to_name": null,
"type": null,
"value": {
"end": 6850,
"labels": [
"FAC"
],
"start": 6674,
"text": "According to clause 12, the assessee was entitled to revoke, determine and put an end to the licence by giving the licensee at any time seventy days previous notice in writing."
}
},
{
"from_name": null,
"id": "e85a59cf5de64604bbd8b92c7817894e",
"to_name": null,
"type": null,
"value": {
"end": 6993,
"labels": [
"FAC"
],
"start": 6851,
"text": "Further, the licensee was not entitled to terminate the licence for a period of five years except with the consent in writing of the assessee."
}
},
{
"from_name": null,
"id": "67445c159bd54c9ba6a1e6d7addd3088",
"to_name": null,
"type": null,
"value": {
"end": 7208,
"labels": [
"FAC"
],
"start": 6994,
"text": "According to clause 13, the assessee was entitled to terminate the licence by giving two days' notice in writing to the licensee and allocate to the licensee alternative space in another vault of the said property."
}
},
{
"from_name": null,
"id": "218ec4807da6490894a452ea2b29952e",
"to_name": null,
"type": null,
"value": {
"end": 7687,
"labels": [
"FAC"
],
"start": 7209,
"text": "Clause 16 makes it clear that nothing contained in the agreement shall be construed to create any right other than the revocable permission granted by the assessee in favour of the licensee of the licensed vault nor as conferring any right to quiet enjoyment or other right except so far as the assessee has power to grant the same and the assessee may of its mere motion and absolutely retain possession of the licensed vault with all additions, fittings and fixtures thereto.\n"
}
},
{
"from_name": null,
"id": "5001262a8a1844cf947609e97157f7a5",
"to_name": null,
"type": null,
"value": {
"end": 7890,
"labels": [
"FAC"
],
"start": 7687,
"text": "Apart from these conditions, the key to each vault was retained by the vault-holder, but the key to the entrance which permitted access to the vaults was kept in the exclusive possession of the assessee."
}
},
{
"from_name": null,
"id": "ade289afdbc5486f877d4fd40da58d18",
"to_name": null,
"type": null,
"value": {
"end": 8009,
"labels": [
"FAC"
],
"start": 7891,
"text": "It is further stated in the statement of the case that the assessee also rendered other services to the vault-holders."
}
},
{
"from_name": null,
"id": "4c1c9ab82cab411794077ffc41152c54",
"to_name": null,
"type": null,
"value": {
"end": 8109,
"labels": [
"FAC"
],
"start": 8010,
"text": "A fire alarm was installed and an annual amount was paid to the municipality towards fire services."
}
},
{
"from_name": null,
"id": "f37690d22d624690a8dcb1d586957060",
"to_name": null,
"type": null,
"value": {
"end": 8268,
"labels": [
"FAC"
],
"start": 8110,
"text": "The assessee opened in the premises two Railway Booking Offices free, of charge for the con- venience of the members for despatch and receipt of film parcels."
}
},
{
"from_name": null,
"id": "5e75638648704be59431a7a79613c3df",
"to_name": null,
"type": null,
"value": {
"end": 8388,
"labels": [
"FAC"
],
"start": 8269,
"text": "A canteen was also run in the premises for the benefit of the vault-holders and a telephone had been provided for them."
}
},
{
"from_name": null,
"id": "f95e2894635d4541a8c98a8fdd674da6",
"to_name": null,
"type": null,
"value": {
"end": 8472,
"labels": [
"FAC"
],
"start": 8389,
"text": "'A' licensees paid Rs. 40/- per month while 'B' licensees paid Rs. 140/- per month."
}
},
{
"from_name": null,
"id": "984ac20510f742e8ab3f95a0c2dc7d6b",
"to_name": null,
"type": null,
"value": {
"end": 8651,
"labels": [
"FAC"
],
"start": 8473,
"text": "The Foreign Film Distributors were originally charged Rs. 300/- per month but later on the charges were reduced to Rs. 100/-.For the assessment years 1950-51, 1951-52 and 1952-53"
}
},
{
"from_name": null,
"id": "11dc11453df144b893213d9c642a2f21",
"to_name": null,
"type": null,
"value": {
"end": 8870,
"labels": [
"FAC"
],
"start": 8651,
"text": ", assessments were made on the assessee under S. 10 of the Act, but for the assessment years 1953-54 and 1954-55, the Income-tax Officer took the view that the assessee should be assessed under s. 9 and not under s. 1O."
}
},
{
"from_name": null,
"id": "ef9286b8099341a980d531ee2ae60924",
"to_name": null,
"type": null,
"value": {
"end": 9070,
"labels": [
"FAC"
],
"start": 8871,
"text": "His view was confirmed on appeal by the Appellate Assistant Commissioner, who also rejected the assessee's alternative submission that the income if not taxed under S. 10 should be taxed under s.\n12."
}
},
{
"from_name": null,
"id": "897b89b84fdd49ae9bab8f22fa21199f",
"to_name": null,
"type": null,
"value": {
"end": 9219,
"labels": [
"FAC"
],
"start": 9071,
"text": "On further appeal to the Tribunal, there was a difference of opinion between the Judicial Member, who was the. President, and the Accountant Member."
}
},
{
"from_name": null,
"id": "738a025dea5c4af4b21d493821b5648b",
"to_name": null,
"type": null,
"value": {
"end": 9494,
"labels": [
"FAC"
],
"start": 9220,
"text": "There being a difference of opinion, the following question was referred to a third Member:- \"Whether on the facts and circumstances of the case, the vaults were used for the purposes of the business and income arising therefrom is assessable under Section 10 or Section 9.\""
}
},
{
"from_name": null,
"id": "86634fcc3eb44478b28d00aa0fc16889",
"to_name": null,
"type": null,
"value": {
"end": 9737,
"labels": [
"FAC"
],
"start": 9494,
"text": "\nThe third Member, agreeing with the President, held that the assessee was carrying on business in these premises and -the business was of similar type as carried on by a bank in letting safe deposit vaults, and income was taxable under S.\n10."
}
},
{
"from_name": null,
"id": "9de0e34eefc14e7785584b9ce69b6354",
"to_name": null,
"type": null,
"value": {
"end": 9880,
"labels": [
"FAC"
],
"start": 9738,
"text": "As already stated, the Appellate Tribunal, at the instance of the Commissioner referred the two questions which we have already set out above."
}
},
{
"from_name": null,
"id": "0ad9a8170ce54a9dbc61608a9740a1ae",
"to_name": null,
"type": null,
"value": {
"end": 9950,
"labels": [
"FAC"
],
"start": 9881,
"text": "The High Court answered the first question in favour of the assessee."
}
},
{
"from_name": null,
"id": "bd318e3c194641d1acf57eff5258b380",
"to_name": null,
"type": null,
"value": {
"end": 10023,
"labels": [
"RLC"
],
"start": 9951,
"text": "The High Court after reviewing several cases deduced seven propositions."
}
},
{
"from_name": null,
"id": "2230944274714a4dbd1573878a402a29",
"to_name": null,
"type": null,
"value": {
"end": 10609,
"labels": [
"RLC"
],
"start": 10024,
"text": "The sixth and seventh propositions were these: \"6. In cases where the income received is not from the bare letting of the tenement or from the letting accompanied by incidental services or facilities, but the subject hired out is a complex one and the income obtained is not so much because of the bare letting of the tenement but because of the facilities and services rendered, the operations involved in such letting of the property may be of the nature of business or trading operations and the income derived may be income not from exercise of property rights properly so- called."
}
},
{
"from_name": null,
"id": "55f078047e3a4b4386123f9be44b6fde",
"to_name": null,
"type": null,
"value": {
"end": 10723,
"labels": [
"RLC"
],
"start": 10610,
"text": "so as to fall under Section 9 but income from operations of a trading nature falling under Section 10 of the Act."
}
},
{
"from_name": null,
"id": "97a27d9dffef43b58dade4563475b675",
"to_name": null,
"type": null,
"value": {
"end": 10750,
"labels": [
"RLC"
],
"start": 10723,
"text": "\n 7"
}
},
{
"from_name": null,
"id": "383df93e80ad42d9b90865e3703028b1",
"to_name": null,
"type": null,
"value": {
"end": 11024,
"labels": [
"RLC"
],
"start": 10750,
"text": ". In cases where the letting is only incidental and subservient to the main business of the assessee, the income derived from the letting will not be the income from property falling under Section 9 and the exception to Section 9 may also come into operation in such cases.\""
}
},
{
"from_name": null,
"id": "dafde816bf9749e2bd25ecd68926242f",
"to_name": null,
"type": null,
"value": {
"end": 11054,
"labels": [
"NONE"
],
"start": 11024,
"text": "\n .lm0"
}
},
{
"from_name": null,
"id": "dab87d7895b34d8b846cc46ad36c5dbb",
"to_name": null,
"type": null,
"value": {
"end": 11499,
"labels": [
"RLC"
],
"start": 11055,
"text": "Then the High Court after examining the facts and circtumstances concluded : \"The income, which is obtained by the company in the present case, required considerable expenditure to be incurred by the company, which is ordinarily not incurred by a landlord who turns his house property to profitable account and which is also not taken into.\n account in the deductions permissible under Section 9."
}
},
{
"from_name": null,
"id": "80d01fe21fdc48e6a82d47ae22db13b6",
"to_name": null,
"type": null,
"value": {
"end": 11710,
"labels": [
"RLC"
],
"start": 11500,
"text": "In our opinion, therefore, the income which the company obtained from the licence-holders in the present case, could not be regarded as income from property failing under Section 9 of the Indian Income-tax Act."
}
},
{
"from_name": null,
"id": "42c4df9c0b1448688c289a0888ced12c",
"to_name": null,
"type": null,
"value": {
"end": 11956,
"labels": [
"RLC"
],
"start": 11710,
"text": "\n The activity of the company in earning that income was a business activity and the source of the income, which the company obtained from the licence-holders, was not the ownership of the house property but its business.\""
}
},
{
"from_name": null,
"id": "c5910d75612c4e8fbe74c34117eb30aa",
"to_name": null,
"type": null,
"value": {
"end": 12087,
"labels": [
"FAC"
],
"start": 11982,
"text": "The Commissioner having obtained certificate of fitness from the High Court, the appeal is now before us."
}
},
{
"from_name": null,
"id": "b43ec37695eb44b8bb977f340e03c872",
"to_name": null,
"type": null,
"value": {
"end": 12325,
"labels": [
"ARG_PETITIONER"
],
"start": 12087,
"text": "\n The learned counsel for the appellant, Mr. T.\n V. Viswanatha Iyer, has put the following propositions before us :- ( 1) The assessee is the owner of property and has to be, assessed as such under s. 9 of the Act."
}
},
{
"from_name": null,
"id": "a5e900510fba4ca49d46a97094edad8b",
"to_name": null,
"type": null,
"value": {
"end": 13247,
"labels": [
"ARG_PETITIONER"
],
"start": 12326,
"text": "Any incidental services rendered as owner do not alter the character of the relationship between the assessee and the users of the vaults, and there is no complexity as far as the services are concerned; (2) In any event, assuming for a moment that certain services are rendered, they are independent of and in addition to, the ownership of the property; (3) The assessee is not carrying on any trade or business by was of letting or otherwise; (4) The assessee is not in occupation of these vaults for the purpose of his business, and if any room is occupied by its staff, that occupation is different from the occupation by the users; (5) There is no plant or machinery which has been let to, the users and the building has been let as something inseparable from the plant and machinery, if any, which exists; and (6) Even if the assessee is carrying on business insofar as it is an owner it has to be taxed under s. 9;"
}
},
{
"from_name": null,
"id": "07cb5d0984ac4153a3cdb43a58c4f08a",
"to_name": null,
"type": null,
"value": {
"end": 13300,
"labels": [
"ARG_PETITIONER"
],
"start": 13248,
"text": "additional income has, to be dealt with under S. 10."
}
},
{
"from_name": null,
"id": "b9b4310de0d3438e947a594121af42bd",
"to_name": null,
"type": null,
"value": {
"end": 14023,
"labels": [
"ARG_RESPONDENT"
],
"start": 13300,
"text": "\nMr. S. T. Desai, the learned counsel for the assessee formulated his proposition as follows :-Distinction has to be drawn between income derived by exercise of property rights properly so called on the one hand, and on the other hand income derived from licensees who are allowed the use of any property, speciallyconstructed safe deposit vaults for securely storing hazardous or inflammable films, or similar goods, or safe deposit lockers for securely keeping valuables and for which purpose special amenities, are given; in the latter class of cases the object is a complex ,one and not merely letting of property and the activities amount to carrying on trade or business, property being the subjectmatter of business."
}
},
{
"from_name": null,
"id": "91ec5ccd1df94c0b8f9e755686f0468e",
"to_name": null,
"type": null,
"value": {
"end": 14118,
"labels": [
"ARG_RESPONDENT"
],
"start": 14024,
"text": "He further says that propositions sixth and seventh as formulated by the High Court are sound."
}
},
{
"from_name": null,
"id": "9db37018f4844da6acd55cf5ca0fd73e",
"to_name": null,
"type": null,
"value": {
"end": 14265,
"labels": [
"ANALYSIS"
],
"start": 14118,
"text": "\nThe answer to the question depends upon the interpretation ,of ss. 9 and 1 0 of the Act, and the ascertainment of 'the activities of the assessee."
}
},
{
"from_name": null,
"id": "10bd7aed54ff4f639aa3634b1e00c550",
"to_name": null,
"type": null,
"value": {
"end": 14517,
"labels": [
"ANALYSIS"
],
"start": 14266,
"text": "It is not disputed that the scheme of the, Indian Income-tax Act, 1922, is that the various heads of income, profits and gains enumerated in section 6 are mutually exclusive, each head being specific to cover the item arising from a particular source."
}
},
{
"from_name": null,
"id": "4e957016b546434594f2c6a504e69c6c",
"to_name": null,
"type": null,
"value": {
"end": 14701,
"labels": [
"ANALYSIS"
],
"start": 14517,
"text": "\nFurther \"whether an income falls under one head or another has to be decided according to the common notions of practical men for the Act does not provide any guidance in the matter\"."
}
},
{
"from_name": null,
"id": "731137d844a44c9d90dd2f6a6f787182",
"to_name": null,
"type": null,
"value": {
"end": 14765,
"labels": [
"ANALYSIS"
],
"start": 14702,
"text": "[vide Sarkar J., in Nalinikant Anbalal Mody v. Narayan Row(1)]."
}
},
{
"from_name": null,
"id": "c8b2a06cc41d4a7ab6685d637c4594f6",
"to_name": null,
"type": null,
"value": {
"end": 15545,
"labels": [
"STA"
],
"start": 14765,
"text": "\n The relevant portion of S. 9 reads as follows \"9. (1) The tax shall be payable by an assessee under the head 'Income from property' in respect of the bona fide annual value of property consisting of any buildings or lands appurtenant thereto of which he is the owner, other than such portions of such property as he may occupy for the purposes of any business, profession or vocation carried on by him the profits of which are assessable to tax, subject to the following allowances, namely........\n 'Section 10(1) reads : \"10. (1) The tax shall be payable by an assessee under the head 'Profits and gains of business, profession or vocation' in respect of the profit or gains of any business, profession or vocation carried on by him.\nThe word \"business\""
}
},
{
"from_name": null,
"id": "ca46168d4ff641719183d2c0576a6649",
"to_name": null,
"type": null,
"value": {
"end": 15690,
"labels": [
"STA"
],
"start": 15546,
"text": "is defined in 2(4) to include \"any trade. commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufacture.\""
}
},
{
"from_name": null,
"id": "23938b95b15e45f3a7168b9e002a6f9d",
"to_name": null,
"type": null,
"value": {
"end": 15894,
"labels": [
"ISSUE"
],
"start": 15690,
"text": "\nThe question which really arises in the present case is whether the assessee is carrying on any business i.e., is it carrying on any adventure or concern in the nature of trade, commerce or manufacture ?"
}
},
{
"from_name": null,
"id": "e8cbf429364b4609af37c8f236f4b09d",
"to_name": null,
"type": null,
"value": {
"end": 16156,
"labels": [
"ANALYSIS"
],
"start": 15895,
"text": "If it is carrying on any adventure or concern in the nature of trade, then S. 9 specifically excludes the income derived 'from property from computation under S. 9, if the property is (1) 61 I.T.R. 428 at p. 432.occupied for the purpose of adventure or concern."
}
},
{
"from_name": null,
"id": "658a40bcbe1e49bab740c5d5ee2288cc",
"to_name": null,
"type": null,
"value": {
"end": 16220,
"labels": [
"ANALYSIS"
],
"start": 16157,
"text": "Similar questions have arisen under the English Income-tax Act."
}
},
{
"from_name": null,
"id": "05c29b14e15e44c4a3691d7a47bdf4da",
"to_name": null,
"type": null,
"value": {
"end": 16389,
"labels": [
"ANALYSIS"
],
"start": 16220,
"text": "\nThough the scheme of the English Income-tax Act is different, some of the cases throw light on the question as to \"what is adventure or concern in the nature of trade.\""
}
},
{
"from_name": null,
"id": "64b7ae940e374697b0579974ea526d6d",
"to_name": null,
"type": null,
"value": {
"end": 16692,
"labels": [
"PRE_RELIED"
],
"start": 16390,
"text": "In the Governors of the Rotunda Hospital, Dublin v. Coman(1), the Governors of a maternity hospital established for charitable purposes were owners of a building- which comprised rooms adapted for public entertainments, and which was connected with the hospital buildings proper by an internal passage."
}
},
{
"from_name": null,
"id": "6605f692156748d5b902406d78574314",
"to_name": null,
"type": null,
"value": {
"end": 16916,
"labels": [
"PRE_RELIED"
],
"start": 16693,
"text": "The hospital derived a substantial income from letting the rooms for public entertainments, concerts, etc., for periods varying from one night to six months and applied the income to the general maintenance of the hospital."
}
},
{
"from_name": null,
"id": "5d905147a41848559d1bc71492259914",
"to_name": null,
"type": null,
"value": {
"end": 17080,
"labels": [
"PRE_RELIED"
],
"start": 16917,
"text": "The rooms were let upon terms which included the provision of seating heating-, and attendance, but an additional charge was made for gas and electricity consumed."
}
},
{
"from_name": null,
"id": "22d174cd77d64334823d90ca2e23748e",
"to_name": null,
"type": null,
"value": {
"end": 17302,
"labels": [
"PRE_RELIED"
],
"start": 17080,
"text": "\nThe House of Lords held that the profits derived from the letting of the rooms were assessable to Income Tax under Schedule D, either under Case 1, as the profits of a trade or business, or under Case VI of that Schedule."
}
},
{
"from_name": null,
"id": "a5ed7362fc304353b578b8b902ca7a72",
"to_name": null,
"type": null,
"value": {
"end": 17369,
"labels": [
"ANALYSIS"
],
"start": 17302,
"text": "\nThe learned counsel for the assessee strongly relies on this case."
}
},
{
"from_name": null,
"id": "24206c4de50f4e278fd9df6f8e6bc919",
"to_name": null,
"type": null,
"value": {
"end": 17464,
"labels": [
"ANALYSIS"
],
"start": 17370,
"text": "It seems to us that the reasoning of the Law Lords in their speeches does assist the assessee."
}
},
{
"from_name": null,
"id": "086e46150fca444daba699c85f580489",
"to_name": null,
"type": null,
"value": {
"end": 17780,
"labels": [
"ANALYSIS"
],
"start": 17465,
"text": "The Lord Chancellor observed ,it p. 582 \"Profits are undoubtedly received in the present case which are applied to charitable purposes, but they are profits derived not merely from the letting of the tenement but from its being let properly equipped for entertainments, with seats, lighting, heating and attendance."
}
},
{
"from_name": null,
"id": "f8a481982eae4ec7801e0f2abd5e5a5d",
"to_name": null,
"type": null,
"value": {
"end": 17829,
"labels": [
"ANALYSIS"
],
"start": 17781,
"text": "The subject which is hired out is a complex one."
}
},
{
"from_name": null,
"id": "182ea3c755e640208b6fdf6132b3deba",
"to_name": null,
"type": null,
"value": {
"end": 17930,
"labels": [
"ANALYSIS"
],
"start": 17830,
"text": "The mere tenement as it stands, without furniture, etc., would be almost useless for entertainments."
}
},
{
"from_name": null,
"id": "5d8a6a72f6fb4fda8e355f6b5125a5ce",
"to_name": null,
"type": null,
"value": {
"end": 18079,
"labels": [
"ANALYSIS"
],
"start": 17931,
"text": "The business of the Governors in respect of those entertainments is to have the hall properly fitted and prepared for being hired out for such uses."
}
},
{
"from_name": null,
"id": "48a48509b9fb4879b79e7846612411dc",
"to_name": null,
"type": null,
"value": {
"end": 18286,
"labels": [
"ANALYSIS"
],
"start": 18080,
"text": "The profits fall under Schedule D, and to such profits the allowance in question has no application, as they cannot be properly described as rents or profits of lands, tenements, hereditaments or heritages."
}
},
{
"from_name": null,
"id": "02d4dcdc35b0413aa80e94eca586be47",
"to_name": null,
"type": null,
"value": {
"end": 18481,
"labels": [
"ANALYSIS"
],
"start": 18287,
"text": "They are the proceeds of a concern in the nature of a trade which is carried on by the Governors, and consists in finding tenants and having the rooms so equipped as to be suitable for letting.\""
}
},
{
"from_name": null,
"id": "554fee0d9ff94773ac0fc523394c7fe2",
"to_name": null,
"type": null,
"value": {
"end": 18610,
"labels": [
"ANALYSIS"
],
"start": 18481,
"text": "\nIn our view the High Court was right in holding that the assessee was carying on an adventure or concern in the nature of trade,"
}
},
{
"from_name": null,
"id": "22bca8901fcd4ec19e31440849298af7",
"to_name": null,
"type": null,
"value": {
"end": 18783,
"labels": [
"ANALYSIS"
],
"start": 18611,
"text": "The assessee not only constructed vaults of special design and special doors and electric fittings, but it also rendered 1) 17 T.C. 517.other services to the vault-holders."
}
},
{
"from_name": null,
"id": "bbf9358c1b2a471eb7b9bf359593905e",
"to_name": null,
"type": null,
"value": {
"end": 18910,
"labels": [
"ANALYSIS"
],
"start": 18784,
"text": "It installed fire alarm and was incurring expenditure for the maintenance of fire alarm by paying charges to the Municipality."
}
},
{
"from_name": null,
"id": "38cb3e95b32f49809d21d425ec60d2ef",
"to_name": null,
"type": null,
"value": {
"end": 19012,
"labels": [
"ANALYSIS"
],
"start": 18911,
"text": "Two Railway Booking Offices were opened in the premises for the despatch and receipt of film parcels."
}
},
{
"from_name": null,
"id": "c5d5e1fbb9ea4855b4b4095d85a1ac33",
"to_name": null,
"type": null,
"value": {
"end": 19059,
"labels": [
"ANALYSIS"
],
"start": 19013,
"text": "This, it appears to us, is a valuable service."
}
},
{
"from_name": null,
"id": "95b5ecdef94b41e9bf45cd45cea163e4",
"to_name": null,
"type": null,
"value": {
"end": 19335,
"labels": [
"ANALYSIS"
],
"start": 19060,
"text": "It .also maintained a regular staff consisting of a Secretary, a peon. a watchman and a sweeper, and apart from that it paid for the ,entire staff of the Indian Motion Picture Distributors' Association an amount of Rs. 800/- per month for services rendered to tile licensees."
}
},
{
"from_name": null,
"id": "7b8b62ed84a1412eb242ef667ec09897",
"to_name": null,
"type": null,
"value": {
"end": 19520,
"labels": [
"ANALYSIS"
],
"start": 19336,
"text": "These vaults could only be used for the specific purpose ,of storing of films and other activities connected with the examination, repairs, cleaning, waxing and rewinding of the films."
}
},
{
"from_name": null,
"id": "fa6c37c30c044cffa2cb63e8fd74a354",
"to_name": null,
"type": null,
"value": {
"end": 19705,
"labels": [
"ARG_RESPONDENT"
],
"start": 19520,
"text": "\nBut the learned counsel for the Commissioner says that s. 9 ,applies because the assessee cannot be said to be in occupation ,of the premises for the purpose of any concern of its own."
}
},
{
"from_name": null,
"id": "b726f307a4744d35b454c96ed41d462b",
"to_name": null,
"type": null,
"value": {
"end": 19805,
"labels": [
"ARG_RESPONDENT"
],
"start": 19706,
"text": "He says that the licensees were in possession of the vaults as lessees and not merely as licensees."
}
},
{
"from_name": null,
"id": "308ff0184e3d481ebe3a9a281d6d1e95",
"to_name": null,
"type": null,
"value": {
"end": 19870,
"labels": [
"ANALYSIS"
],
"start": 19806,
"text": "But, in our opinion, the agreements are licences and not leases."
}
},
{
"from_name": null,
"id": "ab108003729d415788a203762433313e",
"to_name": null,
"type": null,
"value": {
"end": 19982,
"labels": [
"ANALYSIS"
],
"start": 19870,
"text": "\nThe assessee kept the key of the entrance which permitted access to the vaults in its own exclusive possession."
}
},
{
"from_name": null,
"id": "8290374544f44ff2b46dd3cff922aa51",
"to_name": null,
"type": null,
"value": {
"end": 20182,
"labels": [
"ANALYSIS"
],
"start": 19983,
"text": "The assessee was thus in occupation of all the premises for the purpose of its own concern, the concern being the hiring out of specially built vaults and providing special services to the licensees."
}
},
{
"from_name": null,
"id": "9df2e632d51d4562acc10ba4fbc66d69",
"to_name": null,
"type": null,
"value": {
"end": 20518,
"labels": [
"ANALYSIS"
],
"start": 20183,
"text": "As observed by the Lord Chancellor in the Governors of the Rotunda Hospital, Dublin v. Coman(1), \"'tile subject which is hired out is a complex one\" and the return received 'by the assessee is not the income derived from the exercise ,of property rights only but is derived from carrying on adventure or concern in the nature of trade."
}
},
{
"from_name": null,
"id": "88af73acfe214f4f974d16b76826dd95",
"to_name": null,
"type": null,
"value": {
"end": 20942,
"labels": [
"ANALYSIS"
],
"start": 20518,
"text": "\nThere is no force in the sixth submission of the learned counsel for the appellant because the Indian Income-tax Act does not contemplate assessment of property under S. 9 in respect of the rental income and assessment under s. 10 in respect of the extra income derived from the carrying on of an adventure or concern in the nature of trade if the assessee is in occupation of the premises for the purposes of the business."
}
},
{
"from_name": null,
"id": "c8341080dbf64493bedb6662d4598564",
"to_name": null,
"type": null,
"value": {
"end": 21110,
"labels": [
"ANALYSIS"
],
"start": 20943,
"text": "The scheme of the En lish Act is different and special statutory provisions exist in the English Income-tax Act (see Rule 5, Schedule D, English Income tax Act, 1918)."
}
},
{
"from_name": null,
"id": "94533f3ea16e4754aaf4c8610a9b728e",
"to_name": null,
"type": null,
"value": {
"end": 21360,
"labels": [
"ANALYSIS"
],
"start": 21110,
"text": "\nA number of other cases have been cited before us but it is not necessary to deal with them because the answer to the question whether an activity is an adventure or concern in the nature of trade or business must depend upon the facts of each case."
}
},
{
"from_name": null,
"id": "4e150a49d3d743ea81ed3703e846aecb",
"to_name": null,
"type": null,
"value": {
"end": 21420,
"labels": [
"RPC"
],
"start": 21360,
"text": "\n Accordingly the appeals fail and are dismissed with costs."
}
},
{
"from_name": null,
"id": "428ea3bf7b99499ebc474becc644d978",
"to_name": null,
"type": null,
"value": {
"end": 21428,
"labels": [
"RPC"
],
"start": 21420,
"text": "\n V.P.S."
}
},
{
"from_name": null,
"id": "f2226a82c8524bf29f134d0cd0baa4db",
"to_name": null,
"type": null,
"value": {
"end": 21461,
"labels": [
"RPC"
],
"start": 21429,
"text": " Appeals dismissed."
}
},
{
"from_name": null,
"id": "233e03a09bca42fa83b642106bb27b35",
"to_name": null,
"type": null,
"value": {
"end": 21478,
"labels": [
"NONE"
],
"start": 21461,
"text": "\n (1) 7 T.C. 517."
}
}
]
}
] | 4,245 | {
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX, BOMBAY CITY-1, BOMBAY\n\n Vs.\n\nRESPONDENT:\nNATIONAL STORAGE PVT. LTD., BOMBAY\n\nDATE OF JUDGMENT:\n26/04/1967\n\nBENCH:\nSIKRI, S.M.\nBENCH:\nSIKRI, S.M.\nSHAH, J.C.\nRAMASWAMI, V.\n\nCITATION:\n\n1968 AIR 70 1967 SCR (3) 813\n (13)\nCITATOR INFO :\n\nR 1972 SC2315\n\nACT:\nIndian Income-tax Act (11 of 1922), ss. 9 & 10-Assessee's\npremises hired out-Not an ordinary lease but for purposes of\nits own business-Assessment under which head.\n\nHEADNOTE:\nThe assessee-Company was promoted because the Government of\nIndia promulgated the Cinematograph Rules, 1948, according\nto which distributors of films were required to store films\nin godowns constructed in conformity with the specifications\nlaid down in the Rules. The assesses constructed vaults of\nspecial design with special doors and electrical fittings as\nrequired and entered into agreements with several\ndistributors who became vault-holders paying certain amounts\nfor the use of the vaults. The key to each vault was\nretained by the vault-holder, but the key to the entrance\nwhich permitted access to the vaults was kept in the\nexclusive possession of the assessee. The assessee rendered\nvaluable service to the vault-holders by installing a fire\nalarm, by opening Railway Booking Offices in the premises\nand by employing a regular staff, and incurred the necessary\nexpenditure. The vaults were used for the specific purpose\nof storing films and other activities connected with the\nexamination, cleaning, waxing and rewinding of the films.\nOn the question whether the assessee was to be assessed to\nIncometax under s. 9 or s. 10 of the Income-tax Act, 1922,\nHELD : The assessee was carrying on business, that is,\ncarrying on an adventure or concern in the nature of trade\nin the premises, and was therefore liable to be assessed\nunder s. 10 and not under s. 9 of the Act.\nThe Act does not contemplate assessment of property under s.\n9 in respect of the rental income and assessment under s. 10\nin respect of the extra income derived from the carrying on\nof an adventure or concern in the nature of trade if the\nassessee is in occupation of the premises for the purpose of\nthe business. The scheme of the Act is that the various\nheads of income, profits and gains enumerated in s. 6 are\nmutually exclusive, each head being specific to cover the\nitem arising from a particular source, and whether an income\n\nfalls under one head or another has to be decided according\nto common notions of practical men. In the present case,\nthe agreements are licences and not leases, the assessee\nbeing in occupation of all the premises for purposes of its\nown concern, namely, the hiring out of specially built\nvaults and providing services to the vault-holders, who were\nthe licensees. The subject which was hired out was a\ncomplex one and the return received by 'the assessee was not\nincome derived from the exercise of property rights, but was\nderived from carrying on an adventure or concern in the\nnature of trade. [8l8C; [S20C-F]\nThe Governors of the Rotunda Hospital, Dublin v. Coman, 7\nT.C. (H.L.) 517, applied.\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1048- 1051 of 1966.Appeals from the judgment and order dated July 2, 3, 1962 of the Bombay High Court in Income-tax Reference No. 45 of 1960.\nT. V. Viswanatha Iyer, A. N. Kirpal and R. N. Sachthey, for the appellant (in all the appeals).\nS. T. Desai, F. N. Kaka, S. K. Dholakia and 0. C. Mathur for the respondent (in all the appeals).\nThe Judgment of the Court was delivered by Sikri, J. These appeals by certificate granted by the Bombay High Court under S. 66A(2) of the Indian Income-tax Act, 1925 -hereinafter referred to as the Act-are directed against its judgment in Income-tax Reference No. 45 of 1960 by which it answered the first question of law referred to it by the Income-tax Appellate Tribunal in favour of the National Storage Ltd., Bombay, hereinafter referred to as the assessee. The following questions were referred to the High Court by the Appellate Tribunal at the instance of the Commissioner of Income-tax, Bombay City-1, Bombay : \"1. Whether on the facts and circumstances of the case, the vaults were used for the purposes of the business and income arising therefrom is assessable under Section 10 ?\n 2. If the answer to question I is in the negative, whether the income is assessable under Section 9 or Section 12 ?\"\nThe relevant facts and circumstances are as follows :-The assessee was promoted because the Government of India promulgated the Cinematograph Film Rules, 1948, hereinafter referred to as the Film Rules according to which the distributors were required to store films only in godowns constructed strictly in conformity with the specifications laid down in the Film Rules and in a place to be approved by the Chief Inspector of Explosives, Government of India. A place at Mahim was approved and the assessee, after purchasing a plot of land there constructed 13 units thereon, 12 units meant for the Members of the Indian Motion Picture Distributors' Association, who had floated the Company, and one unit for Foreign Film Distributors in Bombay, who were not members of the Association. Each unit was divided into four vaults, having a ground floor for rewinding of films and an upper floor for storage of films.\nThese units were constructed in conformity with the requirements of and the specifications laid down in the Film Rules. The walls and ceilings were of a particular width and automatic fire proof door was installed in one wall which would close immediately on the outbreak offire in the vault. Other walls had no opening or window and one ventilation was provided in the ceiling. The units were built at a distance of 50 feet from one another. The assessee entered into agreements with the film distributors.\nThere were two types of agreements, one was classified as 'A' Licence and the other as 'B' Licence. The agreements were more or less in identical terms with minor variations here and there. One agreement has been annexed to the statement of the case as annexure 'A' and some of the relevant clauses are as under : Clause 2 provides that the licensee shall not use the vault for any other purpose except for storing cinema films and shall use the ground floor (examination room) only for the purpose of examination, repairs, cleaning, waxing and rewinding of the films. According to clause 9, the licensee could not transfer, assign, sublet, underlet or grant any licence in respect of or part with the possession of the vault or any part thereof without the written permission of the assessee. According to clause 12, the assessee was entitled to revoke, determine and put an end to the licence by giving the licensee at any time seventy days previous notice in writing. Further, the licensee was not entitled to terminate the licence for a period of five years except with the consent in writing of the assessee. According to clause 13, the assessee was entitled to terminate the licence by giving two days' notice in writing to the licensee and allocate to the licensee alternative space in another vault of the said property. Clause 16 makes it clear that nothing contained in the agreement shall be construed to create any right other than the revocable permission granted by the assessee in favour of the licensee of the licensed vault nor as conferring any right to quiet enjoyment or other right except so far as the assessee has power to grant the same and the assessee may of its mere motion and absolutely retain possession of the licensed vault with all additions, fittings and fixtures thereto.\nApart from these conditions, the key to each vault was retained by the vault-holder, but the key to the entrance which permitted access to the vaults was kept in the exclusive possession of the assessee. It is further stated in the statement of the case that the assessee also rendered other services to the vault-holders. A fire alarm was installed and an annual amount was paid to the municipality towards fire services. The assessee opened in the premises two Railway Booking Offices free, of charge for the con- venience of the members for despatch and receipt of film parcels. A canteen was also run in the premises for the benefit of the vault-holders and a telephone had been provided for them. 'A' licensees paid Rs. 40/- per month while 'B' licensees paid Rs. 140/- per month. The Foreign Film Distributors were originally charged Rs. 300/- per month but later on the charges were reduced to Rs. 100/-.For the assessment years 1950-51, 1951-52 and 1952-53, assessments were made on the assessee under S. 10 of the Act, but for the assessment years 1953-54 and 1954-55, the Income-tax Officer took the view that the assessee should be assessed under s. 9 and not under s. 1O. His view was confirmed on appeal by the Appellate Assistant Commissioner, who also rejected the assessee's alternative submission that the income if not taxed under S. 10 should be taxed under s.\n12. On further appeal to the Tribunal, there was a difference of opinion between the Judicial Member, who was the. President, and the Accountant Member. There being a difference of opinion, the following question was referred to a third Member:- \"Whether on the facts and circumstances of the case, the vaults were used for the purposes of the business and income arising therefrom is assessable under Section 10 or Section 9.\"\nThe third Member, agreeing with the President, held that the assessee was carrying on business in these premises and -the business was of similar type as carried on by a bank in letting safe deposit vaults, and income was taxable under S.\n10. As already stated, the Appellate Tribunal, at the instance of the Commissioner referred the two questions which we have already set out above. The High Court answered the first question in favour of the assessee. The High Court after reviewing several cases deduced seven propositions. The sixth and seventh propositions were these: \"6. In cases where the income received is not from the bare letting of the tenement or from the letting accompanied by incidental services or facilities, but the subject hired out is a complex one and the income obtained is not so much because of the bare letting of the tenement but because of the facilities and services rendered, the operations involved in such letting of the property may be of the nature of business or trading operations and the income derived may be income not from exercise of property rights properly so- called. so as to fall under Section 9 but income from operations of a trading nature falling under Section 10 of the Act.\n 7. In cases where the letting is only incidental and subservient to the main business of the assessee, the income derived from the letting will not be the income from property falling under Section 9 and the exception to Section 9 may also come into operation in such cases.\"\n .lm0 Then the High Court after examining the facts and circtumstances concluded : \"The income, which is obtained by the company in the present case, required considerable expenditure to be incurred by the company, which is ordinarily not incurred by a landlord who turns his house property to profitable account and which is also not taken into.\n account in the deductions permissible under Section 9. In our opinion, therefore, the income which the company obtained from the licence-holders in the present case, could not be regarded as income from property failing under Section 9 of the Indian Income-tax Act.\n The activity of the company in earning that income was a business activity and the source of the income, which the company obtained from the licence-holders, was not the ownership of the house property but its business.\"\n The Commissioner having obtained certificate of fitness from the High Court, the appeal is now before us.\n The learned counsel for the appellant, Mr. T.\n V. Viswanatha Iyer, has put the following propositions before us :- ( 1) The assessee is the owner of property and has to be, assessed as such under s. 9 of the Act. Any incidental services rendered as owner do not alter the character of the relationship between the assessee and the users of the vaults, and there is no complexity as far as the services are concerned; (2) In any event, assuming for a moment that certain services are rendered, they are independent of and in addition to, the ownership of the property; (3) The assessee is not carrying on any trade or business by was of letting or otherwise; (4) The assessee is not in occupation of these vaults for the purpose of his business, and if any room is occupied by its staff, that occupation is different from the occupation by the users; (5) There is no plant or machinery which has been let to, the users and the building has been let as something inseparable from the plant and machinery, if any, which exists; and (6) Even if the assessee is carrying on business insofar as it is an owner it has to be taxed under s. 9; additional income has, to be dealt with under S. 10.\nMr. S. T. Desai, the learned counsel for the assessee formulated his proposition as follows :-Distinction has to be drawn between income derived by exercise of property rights properly so called on the one hand, and on the other hand income derived from licensees who are allowed the use of any property, speciallyconstructed safe deposit vaults for securely storing hazardous or inflammable films, or similar goods, or safe deposit lockers for securely keeping valuables and for which purpose special amenities, are given; in the latter class of cases the object is a complex ,one and not merely letting of property and the activities amount to carrying on trade or business, property being the subjectmatter of business. He further says that propositions sixth and seventh as formulated by the High Court are sound.\nThe answer to the question depends upon the interpretation ,of ss. 9 and 1 0 of the Act, and the ascertainment of 'the activities of the assessee. It is not disputed that the scheme of the, Indian Income-tax Act, 1922, is that the various heads of income, profits and gains enumerated in section 6 are mutually exclusive, each head being specific to cover the item arising from a particular source.\nFurther \"whether an income falls under one head or another has to be decided according to the common notions of practical men for the Act does not provide any guidance in the matter\". [vide Sarkar J., in Nalinikant Anbalal Mody v. Narayan Row(1)].\n The relevant portion of S. 9 reads as follows \"9. (1) The tax shall be payable by an assessee under the head 'Income from property' in respect of the bona fide annual value of property consisting of any buildings or lands appurtenant thereto of which he is the owner, other than such portions of such property as he may occupy for the purposes of any business, profession or vocation carried on by him the profits of which are assessable to tax, subject to the following allowances, namely........\n 'Section 10(1) reads : \"10. (1) The tax shall be payable by an assessee under the head 'Profits and gains of business, profession or vocation' in respect of the profit or gains of any business, profession or vocation carried on by him.\nThe word \"business\" is defined in 2(4) to include \"any trade. commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufacture.\"\nThe question which really arises in the present case is whether the assessee is carrying on any business i.e., is it carrying on any adventure or concern in the nature of trade, commerce or manufacture ? If it is carrying on any adventure or concern in the nature of trade, then S. 9 specifically excludes the income derived 'from property from computation under S. 9, if the property is (1) 61 I.T.R. 428 at p. 432.occupied for the purpose of adventure or concern. Similar questions have arisen under the English Income-tax Act.\nThough the scheme of the English Income-tax Act is different, some of the cases throw light on the question as to \"what is adventure or concern in the nature of trade.\" In the Governors of the Rotunda Hospital, Dublin v. Coman(1), the Governors of a maternity hospital established for charitable purposes were owners of a building- which comprised rooms adapted for public entertainments, and which was connected with the hospital buildings proper by an internal passage. The hospital derived a substantial income from letting the rooms for public entertainments, concerts, etc., for periods varying from one night to six months and applied the income to the general maintenance of the hospital. The rooms were let upon terms which included the provision of seating heating-, and attendance, but an additional charge was made for gas and electricity consumed.\nThe House of Lords held that the profits derived from the letting of the rooms were assessable to Income Tax under Schedule D, either under Case 1, as the profits of a trade or business, or under Case VI of that Schedule.\nThe learned counsel for the assessee strongly relies on this case. It seems to us that the reasoning of the Law Lords in their speeches does assist the assessee. The Lord Chancellor observed ,it p. 582 \"Profits are undoubtedly received in the present case which are applied to charitable purposes, but they are profits derived not merely from the letting of the tenement but from its being let properly equipped for entertainments, with seats, lighting, heating and attendance. The subject which is hired out is a complex one. The mere tenement as it stands, without furniture, etc., would be almost useless for entertainments. The business of the Governors in respect of those entertainments is to have the hall properly fitted and prepared for being hired out for such uses. The profits fall under Schedule D, and to such profits the allowance in question has no application, as they cannot be properly described as rents or profits of lands, tenements, hereditaments or heritages. They are the proceeds of a concern in the nature of a trade which is carried on by the Governors, and consists in finding tenants and having the rooms so equipped as to be suitable for letting.\"\nIn our view the High Court was right in holding that the assessee was carying on an adventure or concern in the nature of trade, The assessee not only constructed vaults of special design and special doors and electric fittings, but it also rendered 1) 17 T.C. 517.other services to the vault-holders. It installed fire alarm and was incurring expenditure for the maintenance of fire alarm by paying charges to the Municipality. Two Railway Booking Offices were opened in the premises for the despatch and receipt of film parcels. This, it appears to us, is a valuable service. It .also maintained a regular staff consisting of a Secretary, a peon. a watchman and a sweeper, and apart from that it paid for the ,entire staff of the Indian Motion Picture Distributors' Association an amount of Rs. 800/- per month for services rendered to tile licensees. These vaults could only be used for the specific purpose ,of storing of films and other activities connected with the examination, repairs, cleaning, waxing and rewinding of the films.\nBut the learned counsel for the Commissioner says that s. 9 ,applies because the assessee cannot be said to be in occupation ,of the premises for the purpose of any concern of its own. He says that the licensees were in possession of the vaults as lessees and not merely as licensees. But, in our opinion, the agreements are licences and not leases.\nThe assessee kept the key of the entrance which permitted access to the vaults in its own exclusive possession. The assessee was thus in occupation of all the premises for the purpose of its own concern, the concern being the hiring out of specially built vaults and providing special services to the licensees. As observed by the Lord Chancellor in the Governors of the Rotunda Hospital, Dublin v. Coman(1), \"'tile subject which is hired out is a complex one\" and the return received 'by the assessee is not the income derived from the exercise ,of property rights only but is derived from carrying on adventure or concern in the nature of trade.\nThere is no force in the sixth submission of the learned counsel for the appellant because the Indian Income-tax Act does not contemplate assessment of property under S. 9 in respect of the rental income and assessment under s. 10 in respect of the extra income derived from the carrying on of an adventure or concern in the nature of trade if the assessee is in occupation of the premises for the purposes of the business. The scheme of the En lish Act is different and special statutory provisions exist in the English Income-tax Act (see Rule 5, Schedule D, English Income tax Act, 1918).\nA number of other cases have been cited before us but it is not necessary to deal with them because the answer to the question whether an activity is an adventure or concern in the nature of trade or business must depend upon the facts of each case.\n Accordingly the appeals fail and are dismissed with costs.\n V.P.S. Appeals dismissed.\n (1) 7 T.C. 517.\n "
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"text": "\n\nDated this the 16th day of October, 2015\n\n 2(a)CC No. 174 of 2014\n "
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"text": "Trial No. 339 of 2015."
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"text": "\n\n STATE"
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"text": "Prosecution\n\n "
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"text": "-VERSUS -\n\n "
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"text": "Bhukhal Khadia, aged about 65 years,"
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"value": {
"end": 478,
"labels": [
"PREAMBLE"
],
"start": 377,
"text": "\n S/O- Late Litu Khadia\n At- Bandhabahal\n P.S.- Hemgir\n District- Sundargarh."
}
},
{
"from_name": null,
"id": "151ddcb5701e4abf94b89d8ee97a6198",
"to_name": null,
"type": null,
"value": {
"end": 625,
"labels": [
"PREAMBLE"
],
"start": 522,
"text": "............. Accused\n\nOffence U/s. 47 (a) of the B & O Excise Act\n\n Counsel for the prosecution :"
}
},
{
"from_name": null,
"id": "76670844b07544c7b08961bde104e2c9",
"to_name": null,
"type": null,
"value": {
"end": 698,
"labels": [
"PREAMBLE"
],
"start": 626,
"text": "Debasish Mishra,\n A.P.P.,Sundargarh"
}
},
{
"from_name": null,
"id": "2c3d6bd7e6674f688d0719c81b2f83ff",
"to_name": null,
"type": null,
"value": {
"end": 753,
"labels": [
"PREAMBLE"
],
"start": 704,
"text": "Counsel for the defence : Shri N Immam, Advocate."
}
},
{
"from_name": null,
"id": "cc6cb51c9c83421f81c0487b7eadda1a",
"to_name": null,
"type": null,
"value": {
"end": 798,
"labels": [
"PREAMBLE"
],
"start": 753,
"text": "\n\nDate of conclusion of argument: 15.10.2015."
}
},
{
"from_name": null,
"id": "04d8923d01854d069550cc86bace2328",
"to_name": null,
"type": null,
"value": {
"end": 869,
"labels": [
"PREAMBLE"
],
"start": 798,
"text": "\nDate of pronouncement of judgment: 16.10.2015.\n\n J U D G M E N T"
}
},
{
"from_name": null,
"id": "d039fd3ba05c49a183d7c02f9ef8e736",
"to_name": null,
"type": null,
"value": {
"end": 1003,
"labels": [
"FAC"
],
"start": 871,
"text": "The accused person namely Bhukhal Khadia, stands charged for the commission of offence U/s. 47 (a) of the Bihar & Orissa Excise Act."
}
},
{
"from_name": null,
"id": "e1192c8ec15d43b59706accbf8036b72",
"to_name": null,
"type": null,
"value": {
"end": 1062,
"labels": [
"FAC"
],
"start": 1003,
"text": "\n The accused is on bail and is present in the Court today."
}
},
{
"from_name": null,
"id": "87d43e2553354f0b90a4c520cff29683",
"to_name": null,
"type": null,
"value": {
"end": 1071,
"labels": [
"FAC"
],
"start": 1064,
"text": "2. "
}
},
{
"from_name": null,
"id": "591a89c778c049089477581c2bf7d782",
"to_name": null,
"type": null,
"value": {
"end": 1392,
"labels": [
"FAC"
],
"start": 1071,
"text": "Briefly stated, the case of the prosecution is that on 13.07.2014 at about 7.30 am near Bandhabahal area while Indrajit Sahu, S.I.\n Of Excise, Sadar Mobile was performing patrolling duty along with other official staffs, they found the accused Bhukhal Khadia going on the road by holding a plastic jerry cane in his hand."
}
},
{
"from_name": null,
"id": "64f209c701054766b836ee36f4294e72",
"to_name": null,
"type": null,
"value": {
"end": 1458,
"labels": [
"FAC"
],
"start": 1393,
"text": "On suspicion, S.I of Excise detained him and search was effected."
}
},
{
"from_name": null,
"id": "f42749912cb54e9dbd744887c86e7f91",
"to_name": null,
"type": null,
"value": {
"end": 1539,
"labels": [
"FAC"
],
"start": 1459,
"text": "On search, he recovered some contraband liquid substance suspected to be liquor."
}
},
{
"from_name": null,
"id": "14385d9f690e4a06af7ecaeff38fffef",
"to_name": null,
"type": null,
"value": {
"end": 1622,
"labels": [
"FAC"
],
"start": 1540,
"text": "After that S.I. of Excise conducted smell, blue litmus paper and hydrometer tests."
}
},
{
"from_name": null,
"id": "03b27044dd0e48c38356e745e4e2f258",
"to_name": null,
"type": null,
"value": {
"end": 1835,
"labels": [
"FAC"
],
"start": 1623,
"text": "On hydrometer test the temprature was found to be 720 F, indication to be 86.0 and strength to be 62.10 UP and out of his distillery training and experience ascertained that the liquid was nothing but I.D liquor."
}
},
{
"from_name": null,
"id": "a7005dd3316644e388507ff3ce59903f",
"to_name": null,
"type": null,
"value": {
"end": 1928,
"labels": [
"FAC"
],
"start": 1836,
"text": "On being asked, the accused could not produce any licence or authority with respect to same."
}
},
{
"from_name": null,
"id": "e1f8188dfe1848b8a93e3fc6233d4078",
"to_name": null,
"type": null,
"value": {
"end": 2014,
"labels": [
"FAC"
],
"start": 1929,
"text": "After measurement through litre measure, the whole quantity was found to be 5 litres."
}
},
{
"from_name": null,
"id": "969e40cde3f648b6bdf1d06fed9c9c50",
"to_name": null,
"type": null,
"value": {
"end": 2071,
"labels": [
"FAC"
],
"start": 2015,
"text": "Seizure was effected and then seizure list was prepared."
}
},
{
"from_name": null,
"id": "6b5fadf6d0bc440cbeb1932b21664a69",
"to_name": null,
"type": null,
"value": {
"end": 2192,
"labels": [
"FAC"
],
"start": 2072,
"text": "After that he read over the contents to the accused and the witnesses and obtained their signatures on the seizure list."
}
},
{
"from_name": null,
"id": "26751fabb7324ada81ac5c7148e80967",
"to_name": null,
"type": null,
"value": {
"end": 2265,
"labels": [
"FAC"
],
"start": 2193,
"text": "The S.I. of Excise, arrested the accused and forwarded him to the court."
}
},
{
"from_name": null,
"id": "e09e873505a849e192eb62d5c7a257a6",
"to_name": null,
"type": null,
"value": {
"end": 2388,
"labels": [
"FAC"
],
"start": 2266,
"text": "After completion of inquiry, he submitted P.R. against the accused u/s. 47 (a) of the B & O Excise Act to face his trial ."
}
},
{
"from_name": null,
"id": "d97dbb09491148e18c51ab9c278eb403",
"to_name": null,
"type": null,
"value": {
"end": 2406,
"labels": [
"FAC"
],
"start": 2389,
"text": "Hence, this case."
}
},
{
"from_name": null,
"id": "483e8d5ad2684b04b22847a7ea7cad4f",
"to_name": null,
"type": null,
"value": {
"end": 2479,
"labels": [
"FAC"
],
"start": 2408,
"text": "3. The Plea of the defence is of outright denial and false implication."
}
},
{
"from_name": null,
"id": "0ebf3716354247af9aacabcfeaca12a8",
"to_name": null,
"type": null,
"value": {
"end": 2552,
"labels": [
"ISSUE"
],
"start": 2481,
"text": "4. The following points arose for determination in the present case: I."
}
},
{
"from_name": null,
"id": "f4ca9f7f47fa43bb831918811bd80f01",
"to_name": null,
"type": null,
"value": {
"end": 2822,
"labels": [
"ISSUE"
],
"start": 2553,
"text": "Whether on 13.07.2014 at about 7.30 AM at Bandhabahal village the accused namely Bhukhal Khadia was detected by the Excise officials to be in exclusive and conscious possession of one plastic jerrycane containing 5 litres of I.D liquor without any license or authority?"
}
},
{
"from_name": null,
"id": "50be7f4a75bc4ef0b709e99eaa5017bf",
"to_name": null,
"type": null,
"value": {
"end": 2882,
"labels": [
"ISSUE"
],
"start": 2822,
"text": "\n II. Whether the seized article was nothing but I.D liquor?"
}
},
{
"from_name": null,
"id": "b7cbc299bf4a4f76aad95f6b3b2011bc",
"to_name": null,
"type": null,
"value": {
"end": 3039,
"labels": [
"ANALYSIS"
],
"start": 2884,
"text": "5. In order to substantiate its case, prosecution has examined 2 witnesses in all out of whom P.W.1 is the S.I of Excise and P.W.2 is the Excise constable."
}
},
{
"from_name": null,
"id": "9e17b12dd9244e3dbb3c724064a6fd08",
"to_name": null,
"type": null,
"value": {
"end": 3153,
"labels": [
"ANALYSIS"
],
"start": 3040,
"text": "Rest one witness has been declined by the learned A.P.P.\n Ext.s 1 to 2/1 are marked on behalf of the prosecution."
}
},
{
"from_name": null,
"id": "93a6fba69c014a158475b7c88f94dd55",
"to_name": null,
"type": null,
"value": {
"end": 3267,
"labels": [
"ANALYSIS"
],
"start": 3154,
"text": "On the other hand, defence has neither examined any witnesses nor marked any documents as exhibits on its behalf."
}
},
{
"from_name": null,
"id": "9ba34f9dcd1140ebb7ad10bbe90fd23c",
"to_name": null,
"type": null,
"value": {
"end": 3461,
"labels": [
"ANALYSIS"
],
"start": 3269,
"text": "6. The learned counsel for the state has contended that in this case both the official witnesses have supported the prosecution case in full and hence the prosecution case is well established."
}
},
{
"from_name": null,
"id": "5b92636f954f443a866819c93bd48d8d",
"to_name": null,
"type": null,
"value": {
"end": 3641,
"labels": [
"ARG_RESPONDENT"
],
"start": 3462,
"text": "On the other hand, the learned defence counsel has challenged the credibility and quality of the case on the following grounds: I. The seized articles have not been produced.\n II."
}
},
{
"from_name": null,
"id": "dfba6bd45f904e86ab9a592271b9a238",
"to_name": null,
"type": null,
"value": {
"end": 3722,
"labels": [
"ARG_RESPONDENT"
],
"start": 3642,
"text": "None could say regarding the special identification mark on the seized articles."
}
},
{
"from_name": null,
"id": "df1acfc67ae443ca941d788f4b35fffb",
"to_name": null,
"type": null,
"value": {
"end": 3810,
"labels": [
"ARG_RESPONDENT"
],
"start": 3722,
"text": "\n Submitting the above, the learned counsel for the defence has prayed for an acquittal."
}
},
{
"from_name": null,
"id": "98a086a4b13e4abc87202ab6d23735eb",
"to_name": null,
"type": null,
"value": {
"end": 4015,
"labels": [
"ANALYSIS"
],
"start": 3810,
"text": "\n 7. On appreciation of evidence on record P.W.1, the S.I of Excise has deposed that on 13.07.2014 at about 7.30 am he was performing patrolling duty at Bandhabahal village along with his official staffs."
}
},
{
"from_name": null,
"id": "554032b45f204e69938993b3b4d6e2a0",
"to_name": null,
"type": null,
"value": {
"end": 4131,
"labels": [
"ANALYSIS"
],
"start": 4016,
"text": "During patrolling duty, they found the accused going on the road by holding a white plastic jerry cane in his hand."
}
},
{
"from_name": null,
"id": "8a7635c34057435d8d166297effcc03c",
"to_name": null,
"type": null,
"value": {
"end": 4238,
"labels": [
"ANALYSIS"
],
"start": 4132,
"text": "On suspicion, he detained the accused and on search, he recovered I.D. liquor from the plastic jerry cane."
}
},
{
"from_name": null,
"id": "1b915588d6624dffaf1f832c093b3ed4",
"to_name": null,
"type": null,
"value": {
"end": 4322,
"labels": [
"ANALYSIS"
],
"start": 4239,
"text": "The total amount of I.D. liquor was found to be 5 litres through litre measurement."
}
},
{
"from_name": null,
"id": "858f91014914451ebd7126ae24d8fb79",
"to_name": null,
"type": null,
"value": {
"end": 4407,
"labels": [
"ANALYSIS"
],
"start": 4323,
"text": "He tested the liquid with blue litmus paper as a result of which it turned into red."
}
},
{
"from_name": null,
"id": "2eb7229994e0402ebe00822f31f15f0f",
"to_name": null,
"type": null,
"value": {
"end": 4547,
"labels": [
"ANALYSIS"
],
"start": 4408,
"text": "The temperature, indication and strength of the liquid substance were found to be 720 F, 86.0 and 62.10 UP respectively on hydrometer test."
}
},
{
"from_name": null,
"id": "873ae68b95bf4209b748816a9b6b3560",
"to_name": null,
"type": null,
"value": {
"end": 4598,
"labels": [
"ANALYSIS"
],
"start": 4548,
"text": "He proved the tested blue litmus paper as Ext.1/2."
}
},
{
"from_name": null,
"id": "70c8d09b5492490e8bea8e0365c50c6d",
"to_name": null,
"type": null,
"value": {
"end": 4676,
"labels": [
"ANALYSIS"
],
"start": 4599,
"text": "He proved the hydrometer chart as Ext.2 and his signature thereon as Ext.2/1."
}
},
{
"from_name": null,
"id": "0fa386961d8946a0859c245a91a6929b",
"to_name": null,
"type": null,
"value": {
"end": 4811,
"labels": [
"ANALYSIS"
],
"start": 4677,
"text": "On smell test, departmental experience and distillery training it was ascertained that the liquid substance is nothing but I.D liquor."
}
},
{
"from_name": null,
"id": "b235b4c8a4a747fa817bd896440a1272",
"to_name": null,
"type": null,
"value": {
"end": 4890,
"labels": [
"ANALYSIS"
],
"start": 4812,
"text": "On demand, the accused failed to produce any authority in respect of the same."
}
},
{
"from_name": null,
"id": "d7337e553fa44cb5b6fe6c1ca5d92f88",
"to_name": null,
"type": null,
"value": {
"end": 4954,
"labels": [
"ANALYSIS"
],
"start": 4891,
"text": "Thereafter, seizure was effected and seizure list was prepared."
}
},
{
"from_name": null,
"id": "25788c9c2fd646cf96f5ba8c5d1610db",
"to_name": null,
"type": null,
"value": {
"end": 5028,
"labels": [
"ANALYSIS"
],
"start": 4955,
"text": "He proved the seizure list as Ext.1 and his signature thereon as Ext.1/1."
}
},
{
"from_name": null,
"id": "48472b3cdf004cc59a3e5571f6ade8dd",
"to_name": null,
"type": null,
"value": {
"end": 5252,
"labels": [
"ANALYSIS"
],
"start": 5029,
"text": "P.W.2, Excise constable who accompanied the SI of Excise during patrolling duty has deposed that during patrolling duty they detected the accused person who was going on the road by holding a plastic jerry cane in his hand."
}
},
{
"from_name": null,
"id": "c53c10522dec4bd099742454e91d8a90",
"to_name": null,
"type": null,
"value": {
"end": 5374,
"labels": [
"ANALYSIS"
],
"start": 5253,
"text": "On suspicion, Sahu sir detained him and on search he recovered 5 litres of I.D liquor containing in a plastic jerry cane."
}
},
{
"from_name": null,
"id": "3887d94b7c4448518f8f750f0bb1f5f9",
"to_name": null,
"type": null,
"value": {
"end": 5548,
"labels": [
"ANALYSIS"
],
"start": 5375,
"text": "After conducting blue litmus paper test, hydrometer test and on smell test it was ascertained by the S.I of Excise that the said liquid substance was nothing but I.D liquor."
}
},
{
"from_name": null,
"id": "02ea6ab8a7004c7e8886ddf211a62e77",
"to_name": null,
"type": null,
"value": {
"end": 5672,
"labels": [
"ANALYSIS"
],
"start": 5548,
"text": "\nThereafter, the liquor along with plastic jerry cane was seized and seizure list was prepared in the presence of witnesses."
}
},
{
"from_name": null,
"id": "5bb9fe9ea9bd42f0b8f03f931bca72f3",
"to_name": null,
"type": null,
"value": {
"end": 5750,
"labels": [
"ANALYSIS"
],
"start": 5673,
"text": "His signature on the seizure list has been admitted into evidence as Ext.1/3."
}
},
{
"from_name": null,
"id": "82064c16028c408496de933722fdf625",
"to_name": null,
"type": null,
"value": {
"end": 5937,
"labels": [
"ANALYSIS"
],
"start": 5751,
"text": "From the testimonies of P.W.1 and P.W.2, it is clear that the S.I. of Excise has conducted hydrometer test and blue litmus paper test for ascertaining the seized liquid to be I.D liquor."
}
},
{
"from_name": null,
"id": "7944099775344dc0b9cc6e0c8503eed5",
"to_name": null,
"type": null,
"value": {
"end": 6055,
"labels": [
"ANALYSIS"
],
"start": 5937,
"text": "\nNothing substantial could be elicited from the P.W.s 1 and 2 during cross examination to discredit their testimonies."
}
},
{
"from_name": null,
"id": "3817a575373b4081baad3c588179128d",
"to_name": null,
"type": null,
"value": {
"end": 6152,
"labels": [
"ANALYSIS"
],
"start": 6056,
"text": "In view of the aforesaid analysis I am of the opinion that the liquid is nothing but I.D liquor."
}
},
{
"from_name": null,
"id": "28c5f4ccf61047e597e2af37a82add4a",
"to_name": null,
"type": null,
"value": {
"end": 6283,
"labels": [
"ANALYSIS"
],
"start": 6154,
"text": "8. The next question to be determined is whether the seizure was made from the exclusive and conscious possession of the accused."
}
},
{
"from_name": null,
"id": "17cd86c432154507ac6a872b9d03634a",
"to_name": null,
"type": null,
"value": {
"end": 6430,
"labels": [
"ANALYSIS"
],
"start": 6284,
"text": "To this the learned counsel for the accused submitted that there is no independent witness available in this case to prove the search and seizure."
}
},
{
"from_name": null,
"id": "0d68716ab353442aa902b76ab26be184",
"to_name": null,
"type": null,
"value": {
"end": 6516,
"labels": [
"ANALYSIS"
],
"start": 6431,
"text": "The seized article was also not produced before the Court during the course of trial."
}
},
{
"from_name": null,
"id": "07f4a77a326e4533b32af90a71f36794",
"to_name": null,
"type": null,
"value": {
"end": 6677,
"labels": [
"ANALYSIS"
],
"start": 6517,
"text": "The witnesses examined in this case are interested witnesses for the prosecution as such they cannot be relied upon and accordingly, the accused be acquitted.\n "
}
},
{
"from_name": null,
"id": "a11bbaeecb004483a74e35b39391bac8",
"to_name": null,
"type": null,
"value": {
"end": 6742,
"labels": [
"ANALYSIS"
],
"start": 6677,
"text": "Admittedly, the seized liquor has not been produced in the Court."
}
},
{
"from_name": null,
"id": "a5d6c99713cf49f1a0041711806f4c3c",
"to_name": null,
"type": null,
"value": {
"end": 6885,
"labels": [
"ANALYSIS"
],
"start": 6743,
"text": "The witnesses examined are the interested witnesses whose evidence required corroboration by independent witness which is absent in this case."
}
},
{
"from_name": null,
"id": "9cc66cc19f7e414c9ca3dd697b5cb9ff",
"to_name": null,
"type": null,
"value": {
"end": 6997,
"labels": [
"ANALYSIS"
],
"start": 6886,
"text": "In the absence of independent corroboration, the search and seizure of the contraband articles become doubtful."
}
},
{
"from_name": null,
"id": "3f279b10b6b4482daf6678f8910c12d8",
"to_name": null,
"type": null,
"value": {
"end": 7097,
"labels": [
"ANALYSIS"
],
"start": 6998,
"text": "Moreover, the documents relating to the ownership of the house of the accused have not been seized."
}
},
{
"from_name": null,
"id": "4b59685e3e8442f1afd5097ce2922a9e",
"to_name": null,
"type": null,
"value": {
"end": 7254,
"labels": [
"RATIO"
],
"start": 7098,
"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": "0b0d3a5669dc43419b2ba2ac54b19bd0",
"to_name": null,
"type": null,
"value": {
"end": 7425,
"labels": [
"RATIO"
],
"start": 7255,
"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 reasonable doubts."
}
},
{
"from_name": null,
"id": "d30b64244e974a26a565acf2915c53d6",
"to_name": null,
"type": null,
"value": {
"end": 7618,
"labels": [
"RPC"
],
"start": 7425,
"text": "\n 9. In the result, therefore, I hold the accused not guilty of committing the offence punishable U/s. 47(a) of the Bihar & Orissa Excise Act and acquit him as per Section 248(1) of the Cr.PC."
}
},
{
"from_name": null,
"id": "1bd37d623bd34994b6768a29e1624a88",
"to_name": null,
"type": null,
"value": {
"end": 7696,
"labels": [
"RPC"
],
"start": 7619,
"text": "The accused be set at liberty forthwith and is discharged from his bail bond."
}
},
{
"from_name": null,
"id": "cb2dd0fd0a1b463a8b49eadc78edad1c",
"to_name": null,
"type": null,
"value": {
"end": 7887,
"labels": [
"RPC"
],
"start": 7696,
"text": "\n The seized articles ,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": "41a778ea516a47a180f9a680ff6d38d7",
"to_name": null,
"type": null,
"value": {
"end": 7927,
"labels": [
"RPC"
],
"start": 7887,
"text": "\n Enter this case as \" mistake of fact\"."
}
},
{
"from_name": null,
"id": "3f97ca7f9324467bbe84ee709631ba34",
"to_name": null,
"type": null,
"value": {
"end": 8136,
"labels": [
"NONE"
],
"start": 7927,
"text": "\n Pronounced the judgment in the Open Court today i.e on 16th day of October, 2015 under my hand and seal of the Court.\n J.M.F.C, Sundargarh Typed to my dictation & corrected by me.\n J.M.F.C,Sundargarh"
}
},
{
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"id": "87b17f86c42942f3bf9dfed72af4c725",
"to_name": null,
"type": null,
"value": {
"end": 8230,
"labels": [
"NONE"
],
"start": 8137,
"text": "List of witnesses examined for the prosecution: P.W.1 :Indrajit Sahu P.W.2 :Babulu Dash"
}
},
{
"from_name": null,
"id": "ab9fe9b26a8c4cf0a662e151de71ffdd",
"to_name": null,
"type": null,
"value": {
"end": 8542,
"labels": [
"NONE"
],
"start": 8231,
"text": "List of witness examined for the defence: N o n e List of documents admitted in evidence for the prosecution: Ext. 1 :Seizure list Ext.1/1 :Signature of P.W.1 on Ext.1 Ext.1/2 :Tested Blue litmus paper Ext.2 :Hydrometer chart.\n Ext.2/1 :Signature of P.W.1 on Ext.2 Ext.1/3 :Signature of P.W.2 on Ext.1."
}
},
{
"from_name": null,
"id": "9a252fe1ed124d608c53f706654f6d44",
"to_name": null,
"type": null,
"value": {
"end": 8767,
"labels": [
"NONE"
],
"start": 8544,
"text": "List of documents admitted in evidence for the defence: N I L List of material objects admitted in evidence for the prosecution: N I L List of material objects admitted in evidence for defence: N I L J.M.F.C., Sundargarh.\n "
}
}
]
}
] | 4,100 | {
"text": "THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,\n SUNDARGARH.\n\nPresent: Sri P.K. Sethi, LL.M.,\n J.M.F.C., Sundargarh.\n\nDated this the 16th day of October, 2015\n\n 2(a)CC No. 174 of 2014\n Trial No. 339 of 2015.\n\n STATE ............ Prosecution\n\n -VERSUS -\n\n Bhukhal Khadia, aged about 65 years,\n S/O- Late Litu Khadia\n At- Bandhabahal\n P.S.- Hemgir\n District- Sundargarh.\n\n ............. Accused\n\nOffence U/s. 47 (a) of the B & O Excise Act\n\n Counsel for the prosecution : Debasish Mishra,\n A.P.P.,Sundargarh\n\n Counsel for the defence : Shri N Immam, Advocate.\n\nDate of conclusion of argument: 15.10.2015.\nDate of pronouncement of judgment: 16.10.2015.\n\n J U D G M E N T\n The accused person namely Bhukhal Khadia, stands charged for the commission of offence U/s. 47 (a) of the Bihar & Orissa Excise Act.\n The accused is on bail and is present in the Court today.\n 2. Briefly stated, the case of the prosecution is that on 13.07.2014 at about 7.30 am near Bandhabahal area while Indrajit Sahu, S.I.\n Of Excise, Sadar Mobile was performing patrolling duty along with other official staffs, they found the accused Bhukhal Khadia going on the road by holding a plastic jerry cane in his hand. On suspicion, S.I of Excise detained him and search was effected. On search, he recovered some contraband liquid substance suspected to be liquor. After that S.I. of Excise conducted smell, blue litmus paper and hydrometer tests. On hydrometer test the temprature was found to be 720 F, indication to be 86.0 and strength to be 62.10 UP and out of his distillery training and experience ascertained that the liquid was nothing but I.D liquor. On being asked, the accused could not produce any licence or authority with respect to same. After measurement through litre measure, the whole quantity was found to be 5 litres. Seizure was effected and then seizure list was prepared. After that he read over the contents to the accused and the witnesses and obtained their signatures on the seizure list. The S.I. of Excise, arrested the accused and forwarded him to the court. After completion of inquiry, he submitted P.R. against the accused u/s. 47 (a) of the B & O Excise Act to face his trial . Hence, this case.\n 3. The Plea of the defence is of outright denial and false implication.\n 4. The following points arose for determination in the present case: I. Whether on 13.07.2014 at about 7.30 AM at Bandhabahal village the accused namely Bhukhal Khadia was detected by the Excise officials to be in exclusive and conscious possession of one plastic jerrycane containing 5 litres of I.D liquor without any license or authority?\n II. Whether the seized article was nothing but I.D liquor?\n 5. In order to substantiate its case, prosecution has examined 2 witnesses in all out of whom P.W.1 is the S.I of Excise and P.W.2 is the Excise constable. Rest one witness has been declined by the learned A.P.P.\n Ext.s 1 to 2/1 are marked on behalf of the prosecution. On the other hand, defence has neither examined any witnesses nor marked any documents as exhibits on its behalf.\n 6. The learned counsel for the state has contended that in this case both the official witnesses have supported the prosecution case in full and hence the prosecution case is well established. On the other hand, the learned defence counsel has challenged the credibility and quality of the case on the following grounds: I. The seized articles have not been produced.\n II. None could say regarding the special identification mark on the seized articles.\n Submitting the above, the learned counsel for the defence has prayed for an acquittal.\n 7. On appreciation of evidence on record P.W.1, the S.I of Excise has deposed that on 13.07.2014 at about 7.30 am he was performing patrolling duty at Bandhabahal village along with his official staffs. During patrolling duty, they found the accused going on the road by holding a white plastic jerry cane in his hand. On suspicion, he detained the accused and on search, he recovered I.D. liquor from the plastic jerry cane. The total amount of I.D. liquor was found to be 5 litres through litre measurement. He tested the liquid with blue litmus paper as a result of which it turned into red. The temperature, indication and strength of the liquid substance were found to be 720 F, 86.0 and 62.10 UP respectively on hydrometer test. He proved the tested blue litmus paper as Ext.1/2. He proved the hydrometer chart as Ext.2 and his signature thereon as Ext.2/1. On smell test, departmental experience and distillery training it was ascertained that the liquid substance is nothing but I.D liquor. On demand, the accused failed to produce any authority in respect of the same. Thereafter, seizure was effected and seizure list was prepared. He proved the seizure list as Ext.1 and his signature thereon as Ext.1/1. P.W.2, Excise constable who accompanied the SI of Excise during patrolling duty has deposed that during patrolling duty they detected the accused person who was going on the road by holding a plastic jerry cane in his hand. On suspicion, Sahu sir detained him and on search he recovered 5 litres of I.D liquor containing in a plastic jerry cane. After conducting blue litmus paper test, hydrometer test and on smell test it was ascertained by the S.I of Excise that the said liquid substance was nothing but I.D liquor.\nThereafter, the liquor along with plastic jerry cane was seized and seizure list was prepared in the presence of witnesses. His signature on the seizure list has been admitted into evidence as Ext.1/3. From the testimonies of P.W.1 and P.W.2, it is clear that the S.I. of Excise has conducted hydrometer test and blue litmus paper test for ascertaining the seized liquid to be I.D liquor.\nNothing substantial could be elicited from the P.W.s 1 and 2 during cross examination to discredit their testimonies. In view of the aforesaid analysis I am of the opinion that the liquid is nothing but I.D liquor.\n 8. The next question to be determined is whether the seizure was made from the exclusive and conscious possession of the accused. To this the learned counsel for the accused submitted that there is no independent witness available in this case to prove the search and seizure. The seized article was also not produced before the Court during the course of trial. The witnesses examined in this case are interested witnesses for the prosecution as such they cannot be relied upon and accordingly, the accused be acquitted.\n Admittedly, the seized liquor has not been produced in the Court. The witnesses examined are the interested witnesses whose evidence required corroboration by independent witness which is absent in this case. In the absence of independent corroboration, the search and seizure of the contraband articles become doubtful. Moreover, the documents relating to the ownership of the house of the accused have not been seized. 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 reasonable doubts.\n 9. In the result, therefore, I hold the accused not guilty of committing the offence punishable U/s. 47(a) of the Bihar & Orissa Excise Act and acquit him as per Section 248(1) of the Cr.PC. The accused be set at liberty forthwith and is discharged from his bail bond.\n The seized articles ,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 Enter this case as \" mistake of fact\".\n Pronounced the judgment in the Open Court today i.e on 16th day of October, 2015 under my hand and seal of the Court.\n J.M.F.C, Sundargarh Typed to my dictation & corrected by me.\n J.M.F.C,Sundargarh List of witnesses examined for the prosecution: P.W.1 :Indrajit Sahu P.W.2 :Babulu Dash List of witness examined for the defence: N o n e List of documents admitted in evidence for the prosecution: Ext. 1 :Seizure list Ext.1/1 :Signature of P.W.1 on Ext.1 Ext.1/2 :Tested Blue litmus paper Ext.2 :Hydrometer chart.\n Ext.2/1 :Signature of P.W.1 on Ext.2 Ext.1/3 :Signature of P.W.2 on Ext.1.\n List of documents admitted in evidence for the defence: N I L List of material objects admitted in evidence for the prosecution: N I L List of material objects admitted in evidence for defence: N I L J.M.F.C., Sundargarh.\n "
} |
{
"group": "Tax"
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"text": "sas\n IN THE HIGH COURT OF JUDICATURE AT BOMBAY"
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"text": "\n\nSALES TAX REFERENCE NO.47 OF 2009"
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"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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"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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"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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"text": "\n\nhaving its registered office at 1-5 Seven ]"
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"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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"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": "\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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}
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"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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"labels": [
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"text": "..Respondent."
}
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{
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"end": 3303,
"labels": [
"PREAMBLE"
],
"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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"labels": [
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],
"start": 3303,
"text": "\n\nV/s.\n\n1. State of Maharashtra through its"
}
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}
},
{
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"end": 3436,
"labels": [
"PREAMBLE"
],
"start": 3356,
"text": "\n\nSecretary of Ministry of Finance (Sales) ]\n\nTax Department) Mantralaya, Mumbai"
}
},
{
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"end": 3677,
"labels": [
"PREAMBLE"
],
"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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"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 ]"
}
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{
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"labels": [
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"text": "\n\n2. Maharashtra Sales Tax Tribunal,"
}
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"text": "\n\nVikrikar Bhavan, Mazgaon,"
}
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}
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"end": 4443,
"labels": [
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],
"start": 4397,
"text": "\n\nMumbai 400 010. ]"
}
},
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"text": "\n\n ]"
}
},
{
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"end": 4511,
"labels": [
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],
"start": 4492,
"text": "3. The Commissioner"
}
},
{
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"value": {
"end": 4524,
"labels": [
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],
"start": 4512,
"text": "of Sales Tax"
}
},
{
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"id": "49d38f8ca6654886a06465d1224168a6",
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"end": 4537,
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],
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"text": ", ]"
}
},
{
"from_name": null,
"id": "8538badcf7824785b91dfa75ff1976a0",
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"value": {
"end": 4601,
"labels": [
"PREAMBLE"
],
"start": 4537,
"text": "\n\nMaharashtra State, Vikrikar Bhavan, ]\n\nMazgaon, Mumbai"
}
},
{
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"id": "de09beb12c934bc89d500c320ccd134e",
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"value": {
"end": 4647,
"labels": [
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],
"start": 4602,
"text": " 400 010. ] ..Respondents."
}
},
{
"from_name": null,
"id": "f427b2ab85e14491b6a35a94df26c151",
"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": "757498ce3819411fb98e5d97458a036b",
"to_name": null,
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"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": "6fb3cb36f30449d58f4250893f44eb48",
"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": "3efb9047bfe0463ebbe126da607c2a35",
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"value": {
"end": 5388,
"labels": [
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],
"start": 5369,
"text": ": 7TH OCTOBER, 2014"
}
},
{
"from_name": null,
"id": "1a45bcd3dfdc4e59bac8650db9e51890",
"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": "7c2799e821cf4891816a0d13a3f602ba",
"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": "a13f837c93504a35ac7a8d4a176380cc",
"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": "8bc3b3b2f8fe47fd8275d56c181fedc2",
"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": "cb5d5a1ec1dc42eea1a46829a5e19469",
"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": "1344dc69636943528e3fa30664f21aae",
"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": "e6108b03e29841b598476901d14d5228",
"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": "2d8e6e49eb05493291c9d32c8eea83b8",
"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": "3be2351a193f43f4abb20148b8ef1f98",
"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": "aea2668f26544fd79421df667984a880",
"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": "d7a683d969fe488089e6247db90cdc48",
"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": "7063010758204ed797b5143066f73c6f",
"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": "2643a09e9fe74351ae3e929ea9d339f1",
"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": "6137de8633b14b0ba9049d04469bd114",
"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": "344d6803bd614ae5a21e5d0621437e9d",
"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": "e3a8617ffbdc4c2eb37420545b6d0652",
"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": "fff6a3fba2a040ecb7c1c550c7169c09",
"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": "358f4c257c054e45ba6297825e446fda",
"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": "2cf6ea44f5ad48b2a4fb2d68d33da64a",
"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": "1acc1185599648d5a7d9f6a38b194779",
"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": "dc7b004dfecf478eb71e3ca723d1f3e6",
"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": "f1903d7c9bca4c7bb8b0e5f6a41cc2b2",
"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": "e093df4dde9a4024a47d457b2e73b6c1",
"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": "e256eab90cfa468c85ddba65a3b4ec76",
"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": "c204ac4ea64c4832870e80d78d747b5c",
"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": "83f36c7a96824ce0b4060c7c8832d799",
"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": "e975cb8b43a647b58aa78add7b0f55a7",
"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": "0fd04ed071ce45d6b289c3e34d7f8673",
"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": "8d99c6224baf48498cad211bbe8e333f",
"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": "599fce8d32ac4630b8189a98a597c27c",
"to_name": null,
"type": null,
"value": {
"end": 10753,
"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": "614a1c22b29a4b7080f6f4006eaead53",
"to_name": null,
"type": null,
"value": {
"end": 10823,
"labels": [
"ARG_PETITIONER"
],
"start": 10754,
"text": "He relies upon the decision of the Supreme Court in Falcon Tyres V/s."
}
},
{
"from_name": null,
"id": "0d6f4c031e5242d78538a976ead89968",
"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": "40cbad20280547f7aec91e1b27e615cb",
"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": "2ee3c16aeb6b43c49853d72b611ca731",
"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": "5f9ed6e539fd4f299f731ba36f515650",
"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": "2ed5a2beca424bf29cdb10c83cca9187",
"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": "583ce54adce34ec7852473138a1b21dd",
"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": "8c3e16ef6d4c4f858c81fe6f7680dcae",
"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": "c722055e696d4033aa02bbda0ada9813",
"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": "c71cd7abbb48427084ca341a39996856",
"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": "46655a80f5554d0283c39ec098518544",
"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": "a4ab437d9ab2463eb6e252d1b201db0f",
"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": "728885909fc34fe2b424f457e2e0682d",
"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": "1370b3a3e1b144609fff9a5934e6ca40",
"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": "ced3d6b6e839419cbac49abda998e319",
"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": "af733d45ca224bc790d6b1a72bc26f44",
"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": "98b51576793942ffa3d19349087057b7",
"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": "6b0ef623a6a146f3827912cf4824759c",
"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": "3de20eccd2be4caea722c6e72043b2c6",
"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": "8cb9eac329af448980dac47c510565f6",
"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": "613f819f44f540b69a7e7687cbd1aec3",
"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": "e281e196e76d47c89a8733c6e82016db",
"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": "e57ef958c6fa46f09703422cd99245f1",
"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": "585c1d2e0a5c40ad81716c5f271174ee",
"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": "5d1c017522924e6db1db54471870e81f",
"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": "ff19e0454a9047ff9e46e338ddf5088c",
"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": "311aa3343c3e4edbb46c69af9eba3b54",
"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": "f02a4c98195643cc992c66a144877e89",
"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": "b42df9fd0d724181a21bca4a53628236",
"to_name": null,
"type": null,
"value": {
"end": 16092,
"labels": [
"PRE_RELIED"
],
"start": 16025,
"text": "\n 12. This interpretation was referred in Pandurang Agarbatti V/s."
}
},
{
"from_name": null,
"id": "219f02c15a054594aec82f8b2a80a819",
"to_name": null,
"type": null,
"value": {
"end": 16183,
"labels": [
"PRE_RELIED"
],
"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": "9eececaebbae41a8853938fc4bb090ce",
"to_name": null,
"type": null,
"value": {
"end": 16237,
"labels": [
"PRE_RELIED"
],
"start": 16183,
"text": "CFTO, Vijaywada reported in [1999] 113 STC 161 (SC).\n "
}
},
{
"from_name": null,
"id": "017c4aad4a5543dca5b0541d71382f1f",
"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": "04984cf5d3434f21972f9933caf5a6b8",
"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": "39a607774bae4390b0f7272208ce4fa8",
"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": "6e96272e0beb4e04a1f74e4b5082f132",
"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": "e18383ae6b054643b536810fdfdfc8c0",
"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": "8729d67fe0664bfeb51260ecd6bc389a",
"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": "b04b82857cd94ba0b10452a9bde36444",
"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": "4c61a6c187d7444ebb121f84186e9da5",
"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": "c5103a5cf55f4fc681ad46f2520d9297",
"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": "d83b418e6bd840869bab1259a6e21c3b",
"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": "da7469b82d9e4239b56f389cb482196b",
"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": "a89b7b2e239648b18b1768bb234702e3",
"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": "b9084876a4304ce4b38f0e2208105dd2",
"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": "6891f9a1bccf4997acff706dbd6f887b",
"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": "bea49dae9ff745ba8ce2f0a2ee7317d7",
"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": "92c3d71c3e23445cbbeaa5594eb50648",
"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": "39ad5de1d2a44e289f86abf0f7dac9c7",
"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": "7a3e99743b914769b03193440cfc446b",
"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": "25cd11110d8e42f28fecac6374dadbf8",
"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": "f36d00ae84f64cb892c72f3e12f6c43d",
"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": "417f7425d423451aa34a697406d8cc39",
"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": "543e254161c74ff98984b185724bf4a4",
"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": "bf5d42d122094268b0d663d2e4705562",
"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": "35d0a069a6ac4c6fae325f058fc93fd7",
"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": "ba80c05d2e66418ab380a805d8b604ad",
"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": "5721a155fda942b7af2b2ed3a9a75b1a",
"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": "0d855a59d6df4f8d89f8a0d8d46f4be1",
"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": "8fda5830f121451f86e3cbc2cd21630d",
"to_name": null,
"type": null,
"value": {
"end": 20615,
"labels": [
"ANALYSIS"
],
"start": 20580,
"text": "\n \"2.48 Essential Oil, Synthetic "
}
},
{
"from_name": null,
"id": "706eadf1abe149fc9d152cd7f6f52f17",
"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": "57c46c86f57b43588aeeeb58ef6a345d",
"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": "794bb226460f4d7aaa62299284cb2956",
"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": "28b4948069cf4565888bc6eb9cd6da66",
"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": "74a85b08ba9d4508b2fb8c7e6cb6e409",
"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": "a8afcb2312e34ac18909c675ab84af51",
"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": "88e18a7b437247b18c8b58b138d27dbd",
"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": "59c309c418b342b381402cbf959b0f79",
"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": "e544d223f1cb4954b802d409ec83778f",
"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": "35eeaac49d4449bfa84543180f9d7a37",
"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": "6ccd0fda67b6408090313fad0c9ba4ef",
"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": "3424516ae88543be8ee8b59251f123ea",
"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": "d80f5905fe0645aaa12a33a6dec07741",
"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": "9181f5d3843241ce8ae8275a0023a5bc",
"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": "4506e79791d94a3baf75e0b397cfaa4e",
"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": "6b872520c8384d9aaab9fe8a4ffda4f8",
"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": "8f25e580fdc6470e9a1cc176cf18d39f",
"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": "951991345286423fb569c685e3e90e0d",
"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": "40af0e0dd4d5486783b61b2fc1644c06",
"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": "d7f76f2293bf4551bf91b1614640f674",
"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": "fabdc80a82c645f69bbba447c52872ab",
"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": "cc4f1093c1a0497cbb4923b771766886",
"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": "6a4bc172252341ba8f9650a81e1e657d",
"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": "431d464871ed430ea488deeacf46d36e",
"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": "2cf8bd8bb2a44a09b681865461db3d52",
"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": "f36889cecd6e4a7ea27f27bbaa9f9112",
"to_name": null,
"type": null,
"value": {
"end": 25697,
"labels": [
"RPC"
],
"start": 25654,
"text": "The References are disposed of accordingly."
}
},
{
"from_name": null,
"id": "94073808064942d08b9f3fc32055e0ce",
"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": "c9e2594b7b524c418d00c159da887bc7",
"to_name": null,
"type": null,
"value": {
"end": 25776,
"labels": [
"RPC"
],
"start": 25752,
"text": "Rule discharged therein."
}
},
{
"from_name": null,
"id": "380c0039e1d047beb44a982efd11a931",
"to_name": null,
"type": null,
"value": {
"end": 25798,
"labels": [
"RPC"
],
"start": 25777,
"text": "No order as to costs."
}
},
{
"from_name": null,
"id": "99ccde6bed1d415ab3aff84d32f200a8",
"to_name": null,
"type": null,
"value": {
"end": 25854,
"labels": [
"NONE"
],
"start": 25800,
"text": "(A.K.MENON, J.) (S.C.DHARMADHIKARI, J.) 23."
}
},
{
"from_name": null,
"id": "b0370783bd114163ac1fe87a2d782f7f",
"to_name": null,
"type": null,
"value": {
"end": 26100,
"labels": [
"RPC"
],
"start": 25856,
"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": "d85fc52640634fd1a773580b2bdda5ea",
"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": "0a3874a9e17c414d8f87a4e9420ba590",
"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": "31f464714e034c5c901450c3fccaf60d",
"to_name": null,
"type": null,
"value": {
"end": 26439,
"labels": [
"RPC"
],
"start": 26399,
"text": "The bank guarantees to stand discharged."
}
},
{
"from_name": null,
"id": "28b53184bcd64585bcec32dfb8fd80ab",
"to_name": null,
"type": null,
"value": {
"end": 26489,
"labels": [
"NONE"
],
"start": 26439,
"text": "\n (A.K.MENON, J.) (S.C.DHARMADHIKARI, J.)"
}
}
]
}
] | 4,176 | {
"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": "PETITIONER:\nSTATE OF TAMIL NADU\n\n Vs.\n\nRESPONDENT:\nKODAIANAL MOTOR UNION (P) LTD."
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"text": "\n\nDATE OF JUDGMENT01/05/1986"
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"text": "\n\nBENCH:\nMUKHARJI, SABYASACHI (J)\nBENCH:\nMUKHARJI, SABYASACHI (J)\nPATHAK, R.S.\n\nCITATION:\n\n1986 AIR 1973 1986 SCR (2) 927\n 1986 SCALE (1)922\n1986 SCC (3) 91\n (48)\nCITATOR INFO :\n\nRF 1988 SC1737\n\nACT:\n Central Sales Tax Act, 1956 - s. 10A - Penalty - Levy\n\nof - Quantum of Penalty - Determination of.\n Interpretation of Statutes - Legislative intent -\n\nAscertainment of - Duty of court.\n\nHEADNOTE:\n The assessee had purchased motor spare parts on the\n\nbasis of 'C' form certificates issued to them under the\nCentral Sales Tax Act, 1956, for sale, but instead of\nselling, the assessees used them for their own consumption."
}
},
{
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"end": 1111,
"labels": [
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],
"start": 829,
"text": "The Revenue proceeded on the basis that since the goods\npurchased had not been used for the purpose specified in\ns.8(3)(b) and as recorded in the 'C' form certificates, the\nassessees had committed offences under s. 10(d) of the Act\nand therefore, were liable to pay penalty as well."
}
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{
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"id": "1f2104c07a0b40acb49ba93c0c488711",
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"text": "This view\nwas affirmed by all the authorities including the Tribunal."
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"text": "\n\n On the question of quantum of penalty, the Tribunal\nheld that the penalty leviable under s. 10A should be one-\nand-a-half times the concessional rate of tax and not one-\nand-a-half the tax which would have been leviable if no 'C'\nform certificate had been produced."
}
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"text": "\n\n The Revenue challenged before the High Court the\ncorrectness of the view taken by the Tribunal."
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"labels": [
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"text": "The High\nCourt following its earlier decision in the State of Madras\nv. Prem Industrial Corporation (24 S.T.C. 507) approved the\nview taken by the Tribunal."
}
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"labels": [
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"text": "\n\n Allowing the Appeals of the Revenue to this Court,\n^\n\n HELD: 1."
}
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"labels": [
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"start": 1803,
"text": "Sub-section (1) of s. 10A of the Central Sales\nTax Act, 1956 makes it clear that penalty should be worked\nout\n928\nat the rate of tax which would have been levied if the\noffence had not been committed."
}
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"labels": [
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"text": "In other words the question\nis what tax would have been levied under the Act if the\noffence had not been committed."
}
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"labels": [
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],
"start": 2120,
"text": "The assessee would not have\ncommitted any offence only if he had carried out the\nundertaking given by it in its declaration in form 'C' or if\nhe purchased the goods without giving any declaration\n\nthereby incurring liability to pay normal rate of tax as\ncontemplated by sub-s. (2) of s.8."
}
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"text": "One who commits defaults\ncannot be said to have carried out the undertaking given by\nhim."
}
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"labels": [
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"text": "[939 C-E]\n\n 2."
}
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],
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"text": "The use of the expression \"if\" in the phrase \"if the\noffence had not been committed\" was meant to indicate a\ncondition, the condition being that at the time of assessing\nthe penalty, that situation should be visualised wherein\nthere was no scope of committing any offence."
}
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"end": 2890,
"labels": [
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"start": 2795,
"text": "Such a\nsituation could arise only if the tax liability fell under\nsub-s. (2) of s.8 of the Act."
}
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"end": 3081,
"labels": [
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],
"start": 2891,
"text": "The scheme of s.8 indicated\nthe concessional rates contemplated by sub-s. (1) thereof\nwould be available only with reference to those goods which\nare covered by the declarations in form 'C'."
}
},
{
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"labels": [
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],
"start": 3082,
"text": "The moment it\nis found that in respect of particular quantity of goods the\nundertaking given by the assessee in form 'C' declaration\nhas not been carried out, the goods were presumed to be such\nin respect of which no undertaking was existing."
}
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"to_name": "text",
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"end": 3408,
"labels": [
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],
"start": 3325,
"text": "Such goods\nwould be liable to normal tax contemplated under sub-section\n(2) of s.8."
}
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"id": "d421446d825e46c9835c94af3de74fe4",
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"end": 4187,
"labels": [
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],
"start": 3409,
"text": "Therefore, the penalty should be worked out only\non the basis of the normal rates prescribed under sub-s. (2)\nof s.8. [939 F-H; 940 A-B]\n\n M.Pais & Sons and Another v. The State of Mysore, 17\nS.T.C. 161, Bisra Limestone Company Ltd. v. Sales Tax\nOfficer, Rourkela Circle, Uditnagar, and Others, 27 S.T.C.\n531, The Assessing Authority and another v. Jammu Metal\nRolling Mills, [1971] Tax Law Report 1861, Kottayam\nElectricals Private Limited v. The State of Kerala, 32\nS.T.C. 535 and The Gaekwar Mills Ltd. v. The State of\nGujarat, 37 S.T.C. 129, approved.\n\n The State of Madras v. Prem Industrial Corporation, 24,\nS.T.C. 507 and Deputy Commissioner of Commercial taxes,\nMadurai Division, Madurai v. Kodaikanal Motor Union Private\nLimited, 31 S.T.C. 1, overruled."
}
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"value": {
"end": 4362,
"labels": [
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],
"start": 4198,
"text": "3. Section 10A was introduced for imposition of penalty\nin lieu of prosecution, that is to visit the person guilty\n929\nwith certain penalty in place of prosecution."
}
},
{
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"id": "56daa1e6a16844aa9859a0df16a05592",
"to_name": "text",
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"value": {
"end": 4491,
"labels": [
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],
"start": 4363,
"text": "He cannot be\nplaced in a better position than one who would have complied\nwith the provisions of the Act. [940 B-C]\n\n 4."
}
},
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"id": "01c337c2dd804164b7bccb665f562515",
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"end": 4564,
"labels": [
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],
"start": 4492,
"text": "The Court must always seek to find out the intention\nof the legislature."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 4620,
"labels": [
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],
"start": 4565,
"text": "This can be done from the language used\nin the statute."
}
},
{
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"id": "781ca17ba9b945c69f719573b8f47a0b",
"to_name": "text",
"type": "labels",
"value": {
"end": 4737,
"labels": [
"PREAMBLE"
],
"start": 4621,
"text": "But the court need not always cling to\nliteralness and should seek to endeavour to avoid an unjust\nor absurd result."
}
},
{
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"id": "9d30a8d449ad401f865df5ea59a07d0f",
"to_name": "text",
"type": "labels",
"value": {
"end": 4876,
"labels": [
"PREAMBLE"
],
"start": 4738,
"text": "To make sense out of an unhappily worded\nprovision, where purpose is apparent the judicial eye 'some'\nvoilence to language is permissible."
}
},
{
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"id": "e9a395bf0c194bfd84ecafe131eb8e46",
"to_name": "text",
"type": "labels",
"value": {
"end": 4963,
"labels": [
"PREAMBLE"
],
"start": 4877,
"text": "The purpose of the Act\nand the object of a particular section has to be borne in\nmind."
}
},
{
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"id": "f70b7bd0dc7c448e811e05b192e4c61d",
"to_name": "text",
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"value": {
"end": 5204,
"labels": [
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],
"start": 4964,
"text": "[938 F-H]\n\n Seaford Court Estates v. Asher, [1949] 2 All E.R. 155\nat 164, K.P. Varghese v. Income-tax Officer, Ernakulam and\nanother, 131 I.T.R. 597 at 604 to 606 and Luke v. Inland\nRevenue Commissioners, 54 I.T.R. 692, relied upon."
}
},
{
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"id": "a42cd3b8b9b74276adeaa34f8feea5ca",
"to_name": "text",
"type": "labels",
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"end": 5215,
"labels": [
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],
"start": 5204,
"text": "\n\nJUDGMENT:"
}
},
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"to_name": "text",
"type": "labels",
"value": {
"end": 5297,
"labels": [
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],
"start": 5215,
"text": " CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1121- 1124 (NT) of 1974."
}
},
{
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"id": "5fd74a7d6cf94d97b417fd0ba9b63fce",
"to_name": "text",
"type": "labels",
"value": {
"end": 5414,
"labels": [
"NONE"
],
"start": 5307,
"text": "From the Judgment and Order dated 4th April, 1972 of the Madras High Court in T.C. Nos. 158 to 161 of 1966."
}
},
{
"from_name": "label",
"id": "9b422b6881cd45309e82c4a9f7687e98",
"to_name": "text",
"type": "labels",
"value": {
"end": 5487,
"labels": [
"NONE"
],
"start": 5414,
"text": "\n S. Padmanabhan, A.V. Rangam and V.C. Nagaraj for the appellant."
}
},
{
"from_name": "label",
"id": "7dbdf4244b294ec09c7d20b71e5c103e",
"to_name": "text",
"type": "labels",
"value": {
"end": 5521,
"labels": [
"NONE"
],
"start": 5487,
"text": "\n Nemo for the Respondent."
}
},
{
"from_name": "label",
"id": "2b6cdfbf96a44ea6a20e62e3fb32fdae",
"to_name": "text",
"type": "labels",
"value": {
"end": 5597,
"labels": [
"NONE"
],
"start": 5521,
"text": "\n The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J."
}
},
{
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"id": "33b5fc2b61cd4985b2695c0a9c13a125",
"to_name": "text",
"type": "labels",
"value": {
"end": 5732,
"labels": [
"FAC"
],
"start": 5598,
"text": "These appeals by certificate arise from the decision of the Madras High Court dated 4th April, 1972 in Tax Cases Nos. 158-161 of 1966."
}
},
{
"from_name": "label",
"id": "4a94622fed3441399d341dad6323e81a",
"to_name": "text",
"type": "labels",
"value": {
"end": 5802,
"labels": [
"FAC"
],
"start": 5733,
"text": "These are in respect of assessment under Central Sales Tax Act, 1956."
}
},
{
"from_name": "label",
"id": "ad4ced82814b4d2582cb2439f7974733",
"to_name": "text",
"type": "labels",
"value": {
"end": 5918,
"labels": [
"FAC"
],
"start": 5803,
"text": "The assessees in the four tax cases were assessed under Central Sales Tax Act, 1956 (hereinafter called the 'Act')."
}
},
{
"from_name": "label",
"id": "1653411b86034bf4bcef656e9510ae1d",
"to_name": "text",
"type": "labels",
"value": {
"end": 5972,
"labels": [
"FAC"
],
"start": 5919,
"text": "The assessment years involved are 1958-59 to 1961-62."
}
},
{
"from_name": "label",
"id": "effb31c5725e43f6b0eecf58bfe44580",
"to_name": "text",
"type": "labels",
"value": {
"end": 6230,
"labels": [
"FAC"
],
"start": 5973,
"text": "It was found that the assessees had purchased motor spare parts on the basis of the 'C' form certificates issued to them under the provisions of the said Act for sale, but instead of selling those, the assessees had used those for their own consumption.\n930"
}
},
{
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"value": {
"end": 6691,
"labels": [
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],
"start": 6231,
"text": "The revenue proceeded on the basis that since the goods purchased had not been used for the purposes specified in section 8(3)(b) of the Act and as recorded in the 'C' form certificates, the assessees had committed offences under section 10(d) of the Act inasmuch as they had used the goods purchased by them on the basis of 'C' form certificate for the purpose other than the one mentioned in the certificates and therefore were liable to pay penalty as well."
}
},
{
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"type": "labels",
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"end": 6921,
"labels": [
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],
"start": 6692,
"text": "All the authorities including the Tribunal had found that the assessees had actually committed the offences under section 10(d) of the Act in using the goods for the purposes other than the one mentioned in 'C' form certificates."
}
},
{
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"value": {
"end": 7030,
"labels": [
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],
"start": 6922,
"text": "Being a finding of fact, the High Court proceeded on the basis that the assessees had committed the offence."
}
},
{
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"end": 7169,
"labels": [
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],
"start": 7031,
"text": "The question that was posed before the High Court was what was the quantum of penalty that had to be levied under section 10-A of the Act."
}
},
{
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"end": 7214,
"labels": [
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],
"start": 7169,
"text": "\nSection 10-A of the Act deal with penalties."
}
},
{
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"end": 7292,
"labels": [
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],
"start": 7215,
"text": "Section 10-A is a provision for imposition of penalty in lieu of prosectuion."
}
},
{
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"end": 7406,
"labels": [
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],
"start": 7293,
"text": "This section was initially added by section 8 of the Amendment Act 31 of 1958 with effect from 1st October, 1958."
}
},
{
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"end": 7453,
"labels": [
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],
"start": 7407,
"text": "This section has undergone several amendments."
}
},
{
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"end": 7522,
"labels": [
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"start": 7454,
"text": "On 9th June, 1969 with retrospective effect the section was amended."
}
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{
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"id": "601565209a214d7fb37a092f49df4b39",
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"end": 7586,
"labels": [
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],
"start": 7523,
"text": "The section was again amended with effect from 1st April, 1973."
}
},
{
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"id": "a950984f526947b3850c6707d8f4f0db",
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"end": 8995,
"labels": [
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"start": 7587,
"text": "Sub-section (1) of section 10A which is material for our present purpose at the relevant time was as follows : \"10A. (1) If any person purchasing goods is guilty of an offence under clause (b) or clause (c) or clause (d) of section 10, the authority who granted to him, or as the case may be, is competent to grant to him a certificate of registration under this Act may after giving him a reasonable opportunity of being heard, by order in writing, impose upon him by way of penalty a sum not exceeding one-and-a-half times the tax which would have been levied under this Act in respect of the sale to him of the goods, if the offence had not been committed; Provided that no prosecution for an offence under section 10 shall be instituted in respect of the same facts on which a penalty has been imposed under this section.\"\n931 Sub-section (1) of section 10A provided that if any A person purchasing goods is guilty of an offence under clause (b) or clause (c) or clause (d) of section 10, the authority who granted to him or, as the case may be, is competent to grant to him a certificate of registration under the Act, may, after giving him a reasonable opportunity of being heard, by an order in writing, impose upon him by way of penalty sum not exceeding one-and-a-half times the tax which would have been levied at the relevant time in respect of sale of goods if the offence had not been committed."
}
},
{
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"id": "d147817297084b999f60d630f6a85ff4",
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"value": {
"end": 9121,
"labels": [
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],
"start": 8996,
"text": "The only question that was under consideration was the quantum of penalty that had to be levied under section 10A of the Act."
}
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{
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"end": 9465,
"labels": [
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],
"start": 9121,
"text": "\n It may be mentioned that section 10 imposes penalty if any person, inter alia, under clause (d) of section 10 after purchasing any goods for the purpose specified in clause (b) or clause (c) or clause (d) of sub-section (3) of section 8, fails without reasonable excuse to make use of the goods for the purposes mentioned in the certificates."
}
},
{
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"end": 9560,
"labels": [
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],
"start": 9466,
"text": "Section 8 deals with the rates of tax on sales in the course of inter-State trade or commerce."
}
},
{
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"id": "5c6871807bdc4d70b5966134d09949ee",
"to_name": "text",
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"value": {
"end": 9918,
"labels": [
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],
"start": 9561,
"text": "it stipulates that every dealer, who in the course of inter-State trade or commerce, inter alia, sells to a registered dealer other than the Government goods of the description referred to in sub-section (3) shall be liable to pay tax under the Act, which shall be four per cent now and at the relevant time prior to 1975 was three per cent of the turnover."
}
},
{
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"end": 10029,
"labels": [
"STA"
],
"start": 9919,
"text": "Sub-section (3) of section 8 deals with the goods referred to in clause (b) of sub-section (1) of section 8.\n "
}
},
{
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"id": "7a56b0c7e66c44149a3aa0b7944a2ec1",
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"end": 10320,
"labels": [
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],
"start": 10029,
"text": "The Tribunal as mentioned hereinbefore accepted the contention that the penalty liable under section 10A in this case should be one-and-a-half times the concessional rate of tax and not one-and-a half times the tax which would have been leviable if no 'C' form certificate had been produced."
}
},
{
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"to_name": "text",
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"end": 10416,
"labels": [
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],
"start": 10320,
"text": "\nThe Revenue challenged before the High Court the correctness of the view taken by the Tribunal."
}
},
{
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"end": 10549,
"labels": [
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],
"start": 10418,
"text": "The High Court followed the decision of the Madras High Court in the State of Madras v. Prem Industrial Corporation, 24 S.T.C. 507."
}
},
{
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"end": 10822,
"labels": [
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],
"start": 10550,
"text": "Another view was expressed by the Mysore High Court in M. Pais & Sons and another v. The State of Mysore, 17 S.T.C. 161 and the Orissa High Court in Bisra Limestone Company Ltd. v. Sales Tax Officer, Rourkela Circle, uditnagar, & Ors., 27 S.T.C. 531 took a different view."
}
},
{
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"end": 11071,
"labels": [
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],
"start": 10823,
"text": "It also appears H 932 that in Bisra Limestone Company Ltd., the decision of the Madras High Court in The State of Madras v. Prem Industrial corporation, (supra) was specifically referred to but was not accepted as laying down the correct principle."
}
},
{
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"id": "6bb9ab61b6984c31a3fbf346bdbeddc0",
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"value": {
"end": 11734,
"labels": [
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],
"start": 11073,
"text": "In the impugned judgment, the Madras High Court was of the view that these decisions apart from the decision of the Madras High Court in The State of Madras v. Prem Industrial Corporation had proceeded on the basis that if the offence had been committed under section 10A, it should be taken that the concerned assessee never applied for and obtained any valid certificate in form 'C' which would have entitled him to have the beneficial rate of tax and that therefore the penalty leviable under section 10A could only be 1-1/2 times the normal tax i.e. 1-1/2 times the tax that the dealer would have been liable to pay if he had not taken 'C' form certificate."
}
},
{
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"id": "72bab0d175df4d2f95578a502e64252b",
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"value": {
"end": 12143,
"labels": [
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],
"start": 11735,
"text": "The Madras High Court was on the view that if the principle on which the learned judges of the Mysore and Orissa High Courts in the above-mentioned decisions had proceeded was correct, then there was no question of any offence being committed by the assessee in not taking 'C' form certificate, though the assessee might be thrown open to a larger and normal rate of tax in place of concessional rate of tax."
}
},
{
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"id": "2118544a6b2f4f2d97eeecbbdf3eb4b2",
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"end": 12325,
"labels": [
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],
"start": 12144,
"text": "The Madras High Court in the judgment under appeal was unable to accept the principle laid down by the two decisions of the Mysore High Court and the Orissa High Court respectively."
}
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{
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"value": {
"end": 12422,
"labels": [
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],
"start": 12326,
"text": "In that view of the matter, the challenge of the Revenue to the decision of the Tribunal failed."
}
},
{
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"value": {
"end": 12572,
"labels": [
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],
"start": 12422,
"text": "\n Aggrieved by the impugned decision and in view of the conflict of decisions between different High Courts, the Revenue has come up in these appeals."
}
},
{
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"id": "096e135354b24c03b1f3c7b0e2a79701",
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"end": 12915,
"labels": [
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],
"start": 12574,
"text": "In M. Pais & Sons & Anr. v. The State of Mysore, (supra), Hegde, J. as the learned judge then was in the Mysore High Court held that as the goods purchased by the petitioner in that case were not covered by any valid 'C' form, sales tax was leviable at 7 per cent, and therefore the penalty that was leviable 10-1/2 per cent of the turnover."
}
},
{
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"id": "b89d9e9704764a80bfc6baaad4daea97",
"to_name": "text",
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"value": {
"end": 13171,
"labels": [
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],
"start": 12916,
"text": "The petitioner, in another case, had manufactured soap and he had included the following goods in his application for certificate of registration under section 8: coconut oil, perfumes, silicate, caustic soda, nails, colours, strappings, papers and rosin."
}
},
{
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"id": "5c1f2f8756d143fca3378005457f086c",
"to_name": "text",
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"value": {
"end": 13288,
"labels": [
"ANALYSIS"
],
"start": 13172,
"text": "933 During the relevant year the petitioner purchased maroti oil A and groundnut oil by using some of the 'C' forms."
}
},
{
"from_name": "label",
"id": "1487b67249434caab098a3128a35d8f1",
"to_name": "text",
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"value": {
"end": 13374,
"labels": [
"ANALYSIS"
],
"start": 13289,
"text": "The question was whether he was guilty of the offence under section 10(b) of the Act."
}
},
{
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"id": "d83d37ff66e9432ba7d1df173bfeb1e2",
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"value": {
"end": 13689,
"labels": [
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],
"start": 13375,
"text": "The last contention urged in that case as appears from page 169 of the report was that on a true interpretation of section 10A it was clear that the assessee should have been levied penalty only at 1-1/2 per cent of the disputed turnover and not at the rate of 10-1/2 per cent as was done by the authorities below."
}
},
{
"from_name": "label",
"id": "51238b7961d94451aa2a0096667ba19d",
"to_name": "text",
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"value": {
"end": 13754,
"labels": [
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],
"start": 13690,
"text": "This contention did not appears to the High Court to be correct."
}
},
{
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"id": "22b2fd9822364f7ab6c79e165476fe62",
"to_name": "text",
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"value": {
"end": 13861,
"labels": [
"ANALYSIS"
],
"start": 13755,
"text": "All the sales of goods validly covered by 'C' forms were liable to be taxed at 1 per cent of the turnover."
}
},
{
"from_name": "label",
"id": "49c0b092c8004b26b02af30066546ebc",
"to_name": "text",
"type": "labels",
"value": {
"end": 13978,
"labels": [
"ANALYSIS"
],
"start": 13862,
"text": "Such of the goods which were not validly covered by 'C' forms were liable to be taxed at 7 per cent of the turnover."
}
},
{
"from_name": "label",
"id": "d0b7e24ebace49ce968a6a921ae9a46b",
"to_name": "text",
"type": "labels",
"value": {
"end": 14048,
"labels": [
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],
"start": 13979,
"text": "The penalty provided by section 10A was 1-1/2 times the tax leviable."
}
},
{
"from_name": "label",
"id": "c89177a2a0334f088e0591d631602b02",
"to_name": "text",
"type": "labels",
"value": {
"end": 14242,
"labels": [
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],
"start": 14049,
"text": "It was found in that case that the goods with which the Court was concerned were not covered by any valid 'C' forms and, therefore, sales tax was leviable on them at 7 per cent of the turnover."
}
},
{
"from_name": "label",
"id": "3632ec714e0f4a6593285edbfe28f2ad",
"to_name": "text",
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"value": {
"end": 14341,
"labels": [
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],
"start": 14243,
"text": "If that was so, then the penalty on that turnover was leviable at 10-1/2 per cent of the turnover."
}
},
{
"from_name": "label",
"id": "009d3608f3d94236ae97b0a686fdc4dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 14560,
"labels": [
"PRE_RELIED"
],
"start": 14341,
"text": "\n The Madras High Court in The State of Madras v. Prem Industrial Corporation, (supra) had occasion to consider this question and it was upon this decision that the Madras High Court in the judgment under appeal relied."
}
},
{
"from_name": "label",
"id": "dffd64c135a84c4cadae120591227be4",
"to_name": "text",
"type": "labels",
"value": {
"end": 14964,
"labels": [
"PRE_RELIED"
],
"start": 14561,
"text": "There it was held that for an offence committed within the scope of section 10(b) of the Act by the misuse of 'C' forms, the penalty at one and a half times should be calculated on the concessional rate of tax that would have been applicable of the offence had not been committed, that is, if the 'C' forms had been properly used, and not on the basis OF the rate for sales not covered by the 'C' forms."
}
},
{
"from_name": "label",
"id": "e2bee161658748dda90ebd3d4499e92e",
"to_name": "text",
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"value": {
"end": 15117,
"labels": [
"PRE_RELIED"
],
"start": 14965,
"text": "The attention of the Madras High Court was drawn to the judgment of the Mysore High Court in the case of M. Pai & Sons. v. The State of Mysore, (supra)."
}
},
{
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"id": "8583c9cf5aea48af929c83cfae6c89dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 15275,
"labels": [
"PRE_RELIED"
],
"start": 15118,
"text": "The Madras High Court, however, felt that the decision did not take into account the concluding words 'if the offence had not been committed' In section 10A."
}
},
{
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"id": "771487d977ed4445bbeb7c63a18c6c21",
"to_name": "text",
"type": "labels",
"value": {
"end": 15435,
"labels": [
"PRE_RELIED"
],
"start": 15276,
"text": "In that case before the Madras High Court, the revenue sought to revise and order of the Sales-tax Appellate Tribunal by which it modified the penalty imposed."
}
},
{
"from_name": "label",
"id": "f6af4453145442e3a7287be79e9a83b8",
"to_name": "text",
"type": "labels",
"value": {
"end": 15623,
"labels": [
"ANALYSIS"
],
"start": 15436,
"text": "It was not in controversy in that case as in the instant cases before us that 'C' forms had been misused and thereby an offence was committed within the scope of section 10(b) of the Act."
}
},
{
"from_name": "label",
"id": "8b4f2e86513a4bb78464a2fd010dbcce",
"to_name": "text",
"type": "labels",
"value": {
"end": 15854,
"labels": [
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],
"start": 15624,
"text": "The department had levied penalty at 10-1/2 per cent on the view that in the circumstances, the 934 concessional rate would not be available and that the assessee would be liable to tax at 7 per cent under section 8(2) of the Act."
}
},
{
"from_name": "label",
"id": "8e0b7de3c2be49c69ee94f3d624f6d39",
"to_name": "text",
"type": "labels",
"value": {
"end": 16085,
"labels": [
"ANALYSIS"
],
"start": 15855,
"text": "The Tribunal reduced the penalty to one and a half times the tax, as, in its opinion, for purposes of levying penalty, the rate of tax should be taken as that which would have been applicable if the offence had not been committed."
}
},
{
"from_name": "label",
"id": "39cd8804197c4f0db12a669e50b05e1a",
"to_name": "text",
"type": "labels",
"value": {
"end": 16127,
"labels": [
"ANALYSIS"
],
"start": 16086,
"text": "The Madras High Court accepted this view."
}
},
{
"from_name": "label",
"id": "2fa9e3075dce45bdadff3dc4f2980983",
"to_name": "text",
"type": "labels",
"value": {
"end": 16291,
"labels": [
"ANALYSIS"
],
"start": 16127,
"text": "\nAccording to the Madras High Court, the department's contention did not give effect to the concluding words of section 10A 'if the offence had not been committed'."
}
},
{
"from_name": "label",
"id": "b82836b9abaf4973966ea067c4267812",
"to_name": "text",
"type": "labels",
"value": {
"end": 16533,
"labels": [
"ANALYSIS"
],
"start": 16292,
"text": "The High Court was of the view that the offence under the provision was that a person being a registered dealer, falsely represented when purchasing any class of goods that goods of such class were covered by his certificate of registration."
}
},
{
"from_name": "label",
"id": "808a1f7b73984a6dadd588042d15921f",
"to_name": "text",
"type": "labels",
"value": {
"end": 16852,
"labels": [
"ANALYSIS"
],
"start": 16534,
"text": "The words 'if the offence had not been committed' clearly pointed to the result that the tax for purposes of assessing one and a half times thereof was not that which would have been levied on the basis that the 'C' forms had not been complied with or had been misused, but, as n if they had been used in a proper way."
}
},
{
"from_name": "label",
"id": "cbe0b4cbf89b4d36af6068a775943135",
"to_name": "text",
"type": "labels",
"value": {
"end": 16923,
"labels": [
"ANALYSIS"
],
"start": 16853,
"text": "It is this view which found favour in the impugned judgment before us."
}
},
{
"from_name": "label",
"id": "11604329f7b5444d9258b28efc40a552",
"to_name": "text",
"type": "labels",
"value": {
"end": 17046,
"labels": [
"PRE_RELIED"
],
"start": 16923,
"text": "\n The question again cropped up before the Orissa High Court in Bisra Limestone Company Ltd. v. Sales Tax Officer, (supra)."
}
},
{
"from_name": "label",
"id": "d2a6ee3f4e59490ab35bb6306fd41b2a",
"to_name": "text",
"type": "labels",
"value": {
"end": 17325,
"labels": [
"PRE_RELIED"
],
"start": 17047,
"text": "There the Orissa High Court was of the view that the question of penalty would arise only when the goods were not mentioned In the certificate of registration and purchase of the same was made on a false representation made by the purchasing dealer that these were so mentioned."
}
},
{
"from_name": "label",
"id": "b094dc72dc0e48aca4ac074f11c267ca",
"to_name": "text",
"type": "labels",
"value": {
"end": 17465,
"labels": [
"PRE_RELIED"
],
"start": 17326,
"text": "If the normal rate had been paid for the goods, without making any false representation, no offence under section 10(b) would be committed."
}
},
{
"from_name": "label",
"id": "868ebf72fff4437d911a3b1d4c5680d8",
"to_name": "text",
"type": "labels",
"value": {
"end": 17696,
"labels": [
"ANALYSIS"
],
"start": 17466,
"text": "It was only to such cases that the expression \"if the offence had not been committed\" had application and therefore the penalty payable under section 10A would be one and a half times the normal rate and not the concessional rate."
}
},
{
"from_name": "label",
"id": "c1c78806e13c41adafd89b87f29ee91d",
"to_name": "text",
"type": "labels",
"value": {
"end": 17971,
"labels": [
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],
"start": 17697,
"text": "Based on the language of section 10A(1), a contention was raised before the High Court that penalty should bot exceed one-and-a-half times the tax which would have been levied under this act in respect of the sale to him of the goods, if the offence had not been committed'."
}
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"end": 18235,
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"start": 17971,
"text": "\nAccording to the contention if the goods were purchased on concessional rate on false representation that these were covered under the registration, the penalty that imposed should not exceed one and a 935 half times the concessional rate and not the normal rate."
}
},
{
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"text": "\nThe contention was held not to be sound."
}
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"start": 18277,
"text": "The Orissa High Court was of the view that if the goods mentioned in the certificate of registration and the goods purchased at concessional rate as purchasing dealer committed no offence under section 10(b) of the Act the question of imposing penalty did not arise."
}
},
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],
"start": 18544,
"text": "The question of penalty would arise only when goods were not mentioned in the certificate of registration and purchase of the same is made on a false representation by the purchasing dealer that they were so mentioned."
}
},
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"end": 18901,
"labels": [
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],
"start": 18763,
"text": "If the normal rate had been paid for the goods without making any false representation, no offence under section 10(b) would be committed."
}
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"end": 19074,
"labels": [
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],
"start": 18902,
"text": "It was only to such cases that the expression 'if the offence had not been committed' had application and the penalty payable would be one and a half times the normal rate."
}
},
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],
"start": 19074,
"text": "\n The question was again considered by the Full Bench of Jammu & Kashmir High Court in the case of The assessing Authority and another v. Jammu Metal Rolling Mills, [1971] Tax Law Report 1861."
}
},
{
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],
"start": 19267,
"text": "There Jaswant Singh, J. as the learned judge then was of the Jammu & Kashmir High Court, had occasion to consider the concluding words of section 10A i.e. 'impose upon him by way of penalty a sum not exceeding one and a half times the tax which would have been levied under this Act in respect of the sale to him of the goods if the offence had not been committed' and it was interpreted as not to mean that the penalty should be calculated at one and a half times the concessional rate of tax."
}
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"end": 20254,
"labels": [
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],
"start": 19762,
"text": "All that the aforesaid words, according to the J & K High Court, meant was that the person committing the offence specified in section 10(d) would be liable to penalty which would extend to one and a half times the tax payable by a person who purchased goods for the purpose covered by the certificate of registration or the penalty would be upto one and a half times the tax which an honest dealer would have normally to pay while purchasing the goods of similar description for similar use."
}
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"start": 20255,
"text": "Any other interpretation according to the said High Court, would have the effect of putting a premium on the misuse of certificate of registration by unscrupulous dealers."
}
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"end": 20597,
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"start": 20427,
"text": "The said High Court relied on the observations of the Orissa High Court in Bisra Limestone Co. Ltd., (supra) and also the Mysore High Court's view mentioned hereinbefore."
}
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],
"start": 20598,
"text": "The J & K High Court was unable to agree with the views of the Madras High Court in The State of Madras v.\nPrem Industrial Corporation (supra)."
}
},
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"start": 20742,
"text": "936 The question again came to be considered by the Kerala High Court in the case of Kottayam Electricals Private Limited v. The State of Kerala, 32 S.T.C. 535."
}
},
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"end": 21076,
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"start": 20903,
"text": "mere the submission was that the courts should construe the phrase 'if the offence had not been committed' to mean 'if the assessee had not misused or misapplied the goods'."
}
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"end": 21426,
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],
"start": 21077,
"text": "The argument was that if the goods were not misused or misapplied the tax payable would be at the concessional rate of 3 per cent under section 8(1)(b) of the Act and that the maximum penalty that could be imposed could only be one and a half times the tax calculated at 3 per cent on the turnover in respect of which the offence had been committed."
}
},
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"value": {
"end": 21661,
"labels": [
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],
"start": 21427,
"text": "After discussing the contentions and acknowledging that section 10A was not happily worded, the High Court felt that it was unable to accept the view of the Madras High Court in State of Madras v. Prem Industrial Corporation, (supra)."
}
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"end": 21896,
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],
"start": 21662,
"text": "The High Court was of the opinion that if the court interpreted the section to mean that such a person need pay penalty calculated only at the rate of one-and-a-half times the 'concessional rate', it would lead to absurd consequences."
}
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{
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"end": 21990,
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"start": 21896,
"text": "\nIt accepted the views of the Orissa as well as the Mysore High Courts mentioned hereinbefore."
}
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],
"start": 21990,
"text": "\n The Gujarat High Court had occasion to consider this question again in the case of The Gaekwar Mills Ltd. v. The State of Gujarat, 37 S.T.C. 129."
}
},
{
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"id": "557468a8003549aab18d40c4650a589e",
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"end": 22421,
"labels": [
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],
"start": 22138,
"text": "me Gujarat High Court was of the view that the penalty which was contemplated by section 10A of the Act, was to be worked out by reference to the rate of tax provided in section 8(2) of the Act and not by reference to the concessional rate of tax provided in section 8(1) of the Act."
}
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"end": 22660,
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"start": 22422,
"text": "The Gujarat High Court felt that the Tribunal was justified in rejecting the contention of the assessee that the maximum penalty that could be levied under section 10A was 1-1/2 times the concessional rate of tax provided in section 8(1)."
}
},
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"end": 23178,
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],
"start": 22661,
"text": "Dealing with the several authorities noted hereinbefore and the scheme and language of the section, the Gujarat High Court was of the opinion that to accept the contention that the true effect of the words 'if the offence had not been committed' was to presume a situation in which the undertaking given by the declaration was carried out even though in fact the same was not carried out that would not be a proper presumption because if such a presumption was raised, it would make the whole situation highly absurd."
}
},
{
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"end": 23346,
"labels": [
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],
"start": 23179,
"text": "The absurdity would be that for the purpose of penalising the defaulter, a presumption was to be made that the defaulter was not one who had 937 Committed any default."
}
},
{
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"id": "0ccd8da6f3314901b1af629077adb676",
"to_name": "text",
"type": "labels",
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"end": 23418,
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],
"start": 23347,
"text": "The legislature could not be attributed with any such absurd intention."
}
},
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"end": 23738,
"labels": [
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],
"start": 23419,
"text": "The High Court noted that while framing section 10A, the legislature had not used the expression 'as if', at the time of using the words 'if the offence had not been committed', at choice of the word 'if', instead of the expression 'as if' indicated a conditional phrase, and not a phrase prescribing a deeming fiction."
}
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"end": 23921,
"labels": [
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],
"start": 23739,
"text": "The High Court was of the view that the interpretation canvassed by the assessee obviously introduced the concept of a fiction which treated the offender as one who had not offended."
}
},
{
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"end": 24008,
"labels": [
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],
"start": 23922,
"text": "Section 10A was a penal provision which stipulated penalty in lieu of the prosecution."
}
},
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"to_name": "text",
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"end": 24207,
"labels": [
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],
"start": 24009,
"text": "me High Court expressed the view that one has yet to come across a penal provision, which created a fiction that an offender was not an offender, and should, therefore, be treated as a non-offender."
}
},
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"id": "46494ccabc08435c9b621120ed40f732",
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"end": 24526,
"labels": [
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],
"start": 24208,
"text": "Obviously, by such a fiction, the very object of the penal provision in question was frustrated and, therefore, the legislature could never have intended that by the creation of the above- referred fiction, the very object of introducing the penal clause contained in section 10A of the Act should have been destroyed."
}
},
{
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"id": "23866a3d1b2b45ecb22a6b06436170f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 24815,
"labels": [
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],
"start": 24527,
"text": "The truth of the matter, according to the High Court, was that the use of the word \"if\" simpliciter, was meant to indicate a condition, the condition being that at the time of assessing the penalty, that situation should be visualised wherein there was no scope of committing any offence."
}
},
{
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"value": {
"end": 24941,
"labels": [
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],
"start": 24816,
"text": "Such a situation could arise only if the tax liability fell within the provisions of sub-section (2) of section 8 of the Act."
}
},
{
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"id": "d08bfa9733034826a3a0fdd296245dc5",
"to_name": "text",
"type": "labels",
"value": {
"end": 25143,
"labels": [
"PRE_RELIED"
],
"start": 24942,
"text": "The scheme of the section showed that concessional rates contemplated by sub-section (1) thereof would be available only with reference to those goods which were covered by the declaration of form 'C'."
}
},
{
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"id": "239d3a8b159b4c1e9b7d6b4ac47e44ee",
"to_name": "text",
"type": "labels",
"value": {
"end": 25188,
"labels": [
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],
"start": 25144,
"text": "This was clear in the scheme of the section."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 25552,
"labels": [
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],
"start": 25189,
"text": "Further the High Court noted that if the contention canvassed by the assessee was accepted, then the person who committed default In carrying out his solemn undertaking contemplated by form 'C', would be in a better position than the assessee, who honestly paid the tax under sub-section (2) of section 8 without giving any undertaking contemplated by form 'C ' ."
}
},
{
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"id": "c08811d6cf454e49b25ebdad6f9aa087",
"to_name": "text",
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"value": {
"end": 25819,
"labels": [
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],
"start": 25554,
"text": "In the case of Deputy Commissioner of Commercial Taxes, Madurai Division, Madurai v. Kodaikanal Motor & ion Private Limited, 31 S.T.C. 1 the Madras High Court agreed with the view of Veeraswami, C.J. in State of Madras v. Prem Industrial M Corporation, (supra).\n938"
}
},
{
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"end": 26089,
"labels": [
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],
"start": 25820,
"text": "The section as it stood at the relevant time permitted imposition on dealer by way of penalty of a sum not exceeding one-and-a-half times the tax which would have been levied under this Act in respect of the sale of goods to him 'if the offence had not been committed'."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 26297,
"labels": [
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],
"start": 26090,
"text": "The section as it reads today after amendment in 1973 permits imposition by way of penalty of a sum not exceeding one-and-a-half times the tax which would have been levied under sub-section (2) of section 8."
}
},
{
"from_name": "label",
"id": "ba587fef45114a8f8a9f2297f686aa5e",
"to_name": "text",
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"value": {
"end": 26377,
"labels": [
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],
"start": 26298,
"text": "Sub-section (2) of section 8 deals with tax in the course of inter-State sales."
}
},
{
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"id": "a9e926da1239496bb13a0d67d3435ba1",
"to_name": "text",
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"value": {
"end": 26474,
"labels": [
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],
"start": 26377,
"text": "\n Lord Denning, in Seaford Court Estates v. Asher, [1949] 2 All E.R. 155 at 164 said thus : \"...."
}
},
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"id": "7e3787176f8a429fb0a9964fd82ea1c2",
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"value": {
"end": 26558,
"labels": [
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],
"start": 26475,
"text": "When a defect appears a Judge cannot simply fold his hands and blame the draftsman."
}
},
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"end": 26770,
"labels": [
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],
"start": 26559,
"text": "He must set to work on the constructive task of finding the intention of Parliament......... and then he must supplement the written word so as to give 'force and life' to the intention of the legislature......."
}
},
{
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"id": "01a2c91bd3a54f3eb274558c7ae16d68",
"to_name": "text",
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"value": {
"end": 26936,
"labels": [
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],
"start": 26771,
"text": "A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out?"
}
},
{
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"id": "9deac155f0464a9b8e48ea0ef337bb6f",
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"value": {
"end": 26977,
"labels": [
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],
"start": 26937,
"text": "He must then do as they would have done."
}
},
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"id": "58edf1d0e57c448f98f54ef37bc7c554",
"to_name": "text",
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"value": {
"end": 27095,
"labels": [
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],
"start": 26978,
"text": "A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.\"\n "
}
},
{
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"id": "6ebcac986d794544a69221304b860c79",
"to_name": "text",
"type": "labels",
"value": {
"end": 27168,
"labels": [
"PRE_RELIED"
],
"start": 27095,
"text": "The courts must always seek to find out the intention of the legislature."
}
},
{
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"id": "979808e7e04a45a38262492fdcae81f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 27345,
"labels": [
"PRE_RELIED"
],
"start": 27169,
"text": "Though the courts must find out the intention of the statute from the language used, but language more often than not is an imperfect instrument of expression of human thought."
}
},
{
"from_name": "label",
"id": "950bb36e2c074ff1b94d6b32387405bd",
"to_name": "text",
"type": "labels",
"value": {
"end": 27477,
"labels": [
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],
"start": 27346,
"text": "As Lord Denning said it would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity."
}
},
{
"from_name": "label",
"id": "a4c06e939f2b4a65b467199f40607b9a",
"to_name": "text",
"type": "labels",
"value": {
"end": 27667,
"labels": [
"PRE_RELIED"
],
"start": 27478,
"text": "As judge Learned Hand said, we must not make a fortress out of dictionary but remember that statutes must have some purpose or object, whose imaginative discovery is judicial craftsmanship."
}
},
{
"from_name": "label",
"id": "f788b0c651f8476fa1dfcca66ba6dbd0",
"to_name": "text",
"type": "labels",
"value": {
"end": 27772,
"labels": [
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],
"start": 27668,
"text": "We need not always cling to literalness and should seek to endeavor to avoid an unjust or absurd result."
}
},
{
"from_name": "label",
"id": "dbe8ac9fa2314dbebcd7545cc0598213",
"to_name": "text",
"type": "labels",
"value": {
"end": 27817,
"labels": [
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],
"start": 27773,
"text": "We should not make a mockery of legislation."
}
},
{
"from_name": "label",
"id": "453bc99a0efc46e5af9e10dd2a74d9c0",
"to_name": "text",
"type": "labels",
"value": {
"end": 27963,
"labels": [
"PRE_RELIED"
],
"start": 27818,
"text": "To make sense out of an unhappily worded provision, where the purpose is apparent to the judicial eye 'some' violence to language is permissible."
}
},
{
"from_name": "label",
"id": "8d78037ec0b1481abe9b9115444de15b",
"to_name": "text",
"type": "labels",
"value": {
"end": 28113,
"labels": [
"NONE"
],
"start": 27963,
"text": "\n(See K. P. Varghese v. Income-Tax 939 Officer, Ernakulam & Anr., 131 I.T.R. 597 at 604 to 606 and Luke v. Inland Revenue Commissioner, 54 I.T.R. 692."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 28257,
"labels": [
"RATIO"
],
"start": 28113,
"text": "\n Bearing the scheme of the Act in perspective we are of the opinion that the contention of the revenue in this case has to be accepted."
}
},
{
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"id": "39dc488c8e4a43579ec83798d524374e",
"to_name": "text",
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"value": {
"end": 28477,
"labels": [
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],
"start": 28258,
"text": "'If the offence had not been committed' cannot have the effect that penalty should be levied on the basis of the rate which would have been levied had no offence been committed under clause (d) of section 10 of the Act."
}
},
{
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"end": 28685,
"labels": [
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],
"start": 28478,
"text": "For the purpose of imposition of penalty, it could not be treated that the rate which would govern the question of penalty was the rate which could be levied on the basis that the assessee had made no fault."
}
},
{
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"labels": [
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],
"start": 28686,
"text": "It would lead to putting a premium on avoidance of the provisions of the Act."
}
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"end": 28954,
"labels": [
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],
"start": 28773,
"text": "In our opinion sub-section (1) of section 10A makes it clear that penalty should be worked out at the rate of tax which would have been levied if the offence had not been committed."
}
},
{
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"end": 29070,
"labels": [
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],
"start": 28955,
"text": "In other words the question is what tax would have been levied under the Act if the offence had not been committed."
}
},
{
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"labels": [
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],
"start": 29071,
"text": "The assessee would not have committed any offence only if he had carried out the undertaking given by it in its declaration in form 'C' or if he purchased the goods without giving any declaration thereby incurring liability to pay normal rate of tax as contemplated by sub-section (2) of section 8."
}
},
{
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"end": 29459,
"labels": [
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],
"start": 29370,
"text": "One who commits defaults cannot be said to have carried out the undertaking given by him."
}
},
{
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"to_name": "text",
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"end": 29722,
"labels": [
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],
"start": 29460,
"text": "The presumption canvassed to be raised that the true effect of the words 'if the offence had not been committed' was to presume a situation In which the undertaking given by the assessee had been carried out even though In fact the same had not been carried out."
}
},
{
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"end": 29754,
"labels": [
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],
"start": 29723,
"text": "That would be an absurd result."
}
},
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"end": 30003,
"labels": [
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],
"start": 29755,
"text": "In our opinion the else of the expression 'if' simpliciter, Will meant to indicate a condition, the condition being that at the time of assessing The penalty, that situation should be visualised wherein there was no scope of committing any offence."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 30110,
"labels": [
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],
"start": 30004,
"text": "Such a situation could arise only if the tax liability fell under sub-section (2) of section 8 of the Act."
}
},
{
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"id": "d225276062e6490598b7da214f98018d",
"to_name": "text",
"type": "labels",
"value": {
"end": 30313,
"labels": [
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],
"start": 30111,
"text": "The scheme of section 8 indicated that concessional rates contemplated by sub-section (1) thereof would be available only with reference to those goods which are covered by the declarations in form 'C'."
}
},
{
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"id": "17faf71787b34ed8b028e91334f3f54c",
"to_name": "text",
"type": "labels",
"value": {
"end": 30560,
"labels": [
"RATIO"
],
"start": 30314,
"text": "The moment it Is found that in respect of particular quantity of goods the undertaking given by the assessee In form 'C' declaration has 940 not been carried out, the goods were presumed to be such in respect of which no undertaking was existing."
}
},
{
"from_name": "label",
"id": "cb3f467203af428bb3f8e791031c368c",
"to_name": "text",
"type": "labels",
"value": {
"end": 30661,
"labels": [
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],
"start": 30561,
"text": "Therefore such goods would be liable to normal tax contemplated under sub- section (2) of section 8."
}
},
{
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"id": "bd2bcd555fdf4de182344b17e33b57b6",
"to_name": "text",
"type": "labels",
"value": {
"end": 30790,
"labels": [
"RATIO"
],
"start": 30662,
"text": "Therefore, the penalty should be worked out only on the basis of the normal rates prescribed under sub-section (2) of section 8."
}
},
{
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"id": "2e399ee05bfa4896a2e0491a3bedd42d",
"to_name": "text",
"type": "labels",
"value": {
"end": 30813,
"labels": [
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],
"start": 30791,
"text": "That would make sense."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 30858,
"labels": [
"RATIO"
],
"start": 30813,
"text": "\n That is a reasonably possible construction."
}
},
{
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"id": "6e8dd9c45a874f64b673d824252e97bf",
"to_name": "text",
"type": "labels",
"value": {
"end": 30890,
"labels": [
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],
"start": 30859,
"text": "That would avoid absurd result."
}
},
{
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"id": "ee83060c1b644a3680b27ca41b22fbda",
"to_name": "text",
"type": "labels",
"value": {
"end": 31088,
"labels": [
"RATIO"
],
"start": 30890,
"text": "\n It is further to be borne in mind that section 10A was introduced for imposition of penalty in lieu of prosecution, that is to visit the person guilty with certain penalty in place of prosecution."
}
},
{
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"id": "4bb3203b0ca04956b9978110ef9184cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 31194,
"labels": [
"RATIO"
],
"start": 31089,
"text": "He cannot be placed in a better position than one who would have complied with the provisions of the Act."
}
},
{
"from_name": "label",
"id": "5f22911cd9de4a54b61fd55bc55d7937",
"to_name": "text",
"type": "labels",
"value": {
"end": 31402,
"labels": [
"RATIO"
],
"start": 31195,
"text": "In this respect having regard to the object of the Act, in our opinion, we are in full agreement with the views expressed by the Gujarat High Court in The Gaekwar Mills Ltd. v. The State OF Gujarat, (supra)."
}
},
{
"from_name": "label",
"id": "5ace6443f046439e9a1dbbca6a363d19",
"to_name": "text",
"type": "labels",
"value": {
"end": 31623,
"labels": [
"RATIO"
],
"start": 31403,
"text": "As Lord Denning has said, the judge has to perform the constructive task OF finding the intention of Parliament, and he must supplement the written word so as to give 'force and life' to the intention of the legislature."
}
},
{
"from_name": "label",
"id": "e1760d86f0264a048139ce800953d388",
"to_name": "text",
"type": "labels",
"value": {
"end": 32101,
"labels": [
"RATIO"
],
"start": 31624,
"text": "Primarily, it is always the duty to find out the intention of the legislature and if it can be done without doing much violence to the language as we Find it can be done in this case, though as we have noted that when the purpose was writ large in the scheme of the section \"some violence\" is permissible, here we are of the opinion that the construction put by the assessee cannot be accepted and the contention urged on behalf of the revenue in this case should be preferred."
}
},
{
"from_name": "label",
"id": "0b1526aa1f764544ad94f574b63841aa",
"to_name": "text",
"type": "labels",
"value": {
"end": 32160,
"labels": [
"RATIO"
],
"start": 32101,
"text": "\n We must remember that the provision is a penal provision."
}
},
{
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"id": "be520db2d23a49a8912321e1dcc98ef6",
"to_name": "text",
"type": "labels",
"value": {
"end": 32288,
"labels": [
"RATIO"
],
"start": 32161,
"text": "It has further to be borne in mind that the expression 'if' is not same as 'as if' nor does it contemplate a deeming provision."
}
},
{
"from_name": "label",
"id": "92bda5b0b6c94c9abdc2229175ca0247",
"to_name": "text",
"type": "labels",
"value": {
"end": 32408,
"labels": [
"RATIO"
],
"start": 32289,
"text": "It has also to be borne in mind that the provision was introduced for the imposition of penalty in lieu of prosecution."
}
},
{
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"id": "5f9dc53ea8f44ee2aac02b675c77d67b",
"to_name": "text",
"type": "labels",
"value": {
"end": 32495,
"labels": [
"RATIO"
],
"start": 32409,
"text": "The purpose of the Act and the object of a particular section has to be borne in mind."
}
},
{
"from_name": "label",
"id": "91a4fdabfd324d7c87ab4ecef26f499a",
"to_name": "text",
"type": "labels",
"value": {
"end": 32901,
"labels": [
"ANALYSIS"
],
"start": 32495,
"text": "\n Having regard to the same, we are in agreement with he views expressed by the Orissa High Court in Bisra Limestone Company Ltd. v. Sales Tax Officer, Rourkela Circle, Uditnagar, and Others, (supra), Jammu & Kashmir High Court in The Assessing Authority and another v. Jammu Metal Rolling Mills, (supra), the High Court of Kerala 941 in Kottayam Electricals Private Limited v. The State of Kerala (supra)."
}
},
{
"from_name": "label",
"id": "17f8283ff1e34608a69ff901a0ce99f4",
"to_name": "text",
"type": "labels",
"value": {
"end": 33292,
"labels": [
"ANALYSIS"
],
"start": 32902,
"text": "The High Court of Mysore in M. Paid & Sons v. The State of Mysore (supra), the High Court of Gujarat in The Gaekwar Mills Ltd. v. The State of Gujarat (supra) and with respect we are unable to accept the views of Veeraswami, C.J. in State of Madras v. Prem Industrial Corporation (supra), and the other decision of the Madras High Court in Deputy Commissioner of Commercial Taxes (supra).\n "
}
},
{
"from_name": "label",
"id": "71908a399c894b5e9f672a5a378962f2",
"to_name": "text",
"type": "labels",
"value": {
"end": 33386,
"labels": [
"RPC"
],
"start": 33292,
"text": "In the premises the dealer's contention cannot be accepted and revenue's stand must be upheld."
}
},
{
"from_name": "label",
"id": "6b8406d92ddc4f64902cccc66280c6a4",
"to_name": "text",
"type": "labels",
"value": {
"end": 33446,
"labels": [
"RPC"
],
"start": 33386,
"text": "\n The decision under appeal cannot, therefore, be sustained."
}
},
{
"from_name": "label",
"id": "fa5f054ca32444b2a371cf00c5ea8664",
"to_name": "text",
"type": "labels",
"value": {
"end": 33540,
"labels": [
"RPC"
],
"start": 33447,
"text": "The appeals are allowed and the judgment and order of the High Court of Madras are set aside."
}
},
{
"from_name": "label",
"id": "3f10057f46334c1aae7a3f22a711f0ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 33595,
"labels": [
"RPC"
],
"start": 33541,
"text": "The revenue is entitled to the costs of these appeals."
}
},
{
"from_name": "label",
"id": "8cb77a75230342ce9f8cb72aa48db2b8",
"to_name": "text",
"type": "labels",
"value": {
"end": 33657,
"labels": [
"RPC"
],
"start": 33595,
"text": "\n A.P.J. Appeals allowed."
}
}
]
}
] | 1,743 | {
"text": "PETITIONER:\nSTATE OF TAMIL NADU\n\n Vs.\n\nRESPONDENT:\nKODAIANAL MOTOR UNION (P) LTD.\n\nDATE OF JUDGMENT01/05/1986\n\nBENCH:\nMUKHARJI, SABYASACHI (J)\nBENCH:\nMUKHARJI, SABYASACHI (J)\nPATHAK, R.S.\n\nCITATION:\n\n1986 AIR 1973 1986 SCR (2) 927\n 1986 SCALE (1)922\n1986 SCC (3) 91\n (48)\nCITATOR INFO :\n\nRF 1988 SC1737\n\nACT:\n Central Sales Tax Act, 1956 - s. 10A - Penalty - Levy\n\nof - Quantum of Penalty - Determination of.\n Interpretation of Statutes - Legislative intent -\n\nAscertainment of - Duty of court.\n\nHEADNOTE:\n The assessee had purchased motor spare parts on the\n\nbasis of 'C' form certificates issued to them under the\nCentral Sales Tax Act, 1956, for sale, but instead of\nselling, the assessees used them for their own consumption.\nThe Revenue proceeded on the basis that since the goods\npurchased had not been used for the purpose specified in\ns.8(3)(b) and as recorded in the 'C' form certificates, the\nassessees had committed offences under s. 10(d) of the Act\nand therefore, were liable to pay penalty as well. This view\nwas affirmed by all the authorities including the Tribunal.\n\n On the question of quantum of penalty, the Tribunal\nheld that the penalty leviable under s. 10A should be one-\nand-a-half times the concessional rate of tax and not one-\nand-a-half the tax which would have been leviable if no 'C'\nform certificate had been produced.\n\n The Revenue challenged before the High Court the\ncorrectness of the view taken by the Tribunal. The High\nCourt following its earlier decision in the State of Madras\nv. Prem Industrial Corporation (24 S.T.C. 507) approved the\nview taken by the Tribunal.\n\n Allowing the Appeals of the Revenue to this Court,\n^\n\n HELD: 1. Sub-section (1) of s. 10A of the Central Sales\nTax Act, 1956 makes it clear that penalty should be worked\nout\n928\nat the rate of tax which would have been levied if the\noffence had not been committed. In other words the question\nis what tax would have been levied under the Act if the\noffence had not been committed. The assessee would not have\ncommitted any offence only if he had carried out the\nundertaking given by it in its declaration in form 'C' or if\nhe purchased the goods without giving any declaration\n\nthereby incurring liability to pay normal rate of tax as\ncontemplated by sub-s. (2) of s.8. One who commits defaults\ncannot be said to have carried out the undertaking given by\nhim. [939 C-E]\n\n 2. The use of the expression \"if\" in the phrase \"if the\noffence had not been committed\" was meant to indicate a\ncondition, the condition being that at the time of assessing\nthe penalty, that situation should be visualised wherein\nthere was no scope of committing any offence. Such a\nsituation could arise only if the tax liability fell under\nsub-s. (2) of s.8 of the Act. The scheme of s.8 indicated\nthe concessional rates contemplated by sub-s. (1) thereof\nwould be available only with reference to those goods which\nare covered by the declarations in form 'C'. The moment it\nis found that in respect of particular quantity of goods the\nundertaking given by the assessee in form 'C' declaration\nhas not been carried out, the goods were presumed to be such\nin respect of which no undertaking was existing. Such goods\nwould be liable to normal tax contemplated under sub-section\n(2) of s.8. Therefore, the penalty should be worked out only\non the basis of the normal rates prescribed under sub-s. (2)\nof s.8. [939 F-H; 940 A-B]\n\n M.Pais & Sons and Another v. The State of Mysore, 17\nS.T.C. 161, Bisra Limestone Company Ltd. v. Sales Tax\nOfficer, Rourkela Circle, Uditnagar, and Others, 27 S.T.C.\n531, The Assessing Authority and another v. Jammu Metal\nRolling Mills, [1971] Tax Law Report 1861, Kottayam\nElectricals Private Limited v. The State of Kerala, 32\nS.T.C. 535 and The Gaekwar Mills Ltd. v. The State of\nGujarat, 37 S.T.C. 129, approved.\n\n The State of Madras v. Prem Industrial Corporation, 24,\nS.T.C. 507 and Deputy Commissioner of Commercial taxes,\nMadurai Division, Madurai v. Kodaikanal Motor Union Private\nLimited, 31 S.T.C. 1, overruled.\n\n 3. Section 10A was introduced for imposition of penalty\nin lieu of prosecution, that is to visit the person guilty\n929\nwith certain penalty in place of prosecution. He cannot be\nplaced in a better position than one who would have complied\nwith the provisions of the Act. [940 B-C]\n\n 4. The Court must always seek to find out the intention\nof the legislature. This can be done from the language used\nin the statute. But the court need not always cling to\nliteralness and should seek to endeavour to avoid an unjust\nor absurd result. To make sense out of an unhappily worded\nprovision, where purpose is apparent the judicial eye 'some'\nvoilence to language is permissible. The purpose of the Act\nand the object of a particular section has to be borne in\nmind. [938 F-H]\n\n Seaford Court Estates v. Asher, [1949] 2 All E.R. 155\nat 164, K.P. Varghese v. Income-tax Officer, Ernakulam and\nanother, 131 I.T.R. 597 at 604 to 606 and Luke v. Inland\nRevenue Commissioners, 54 I.T.R. 692, relied upon.\n\nJUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1121- 1124 (NT) of 1974.\n From the Judgment and Order dated 4th April, 1972 of the Madras High Court in T.C. Nos. 158 to 161 of 1966.\n S. Padmanabhan, A.V. Rangam and V.C. Nagaraj for the appellant.\n Nemo for the Respondent.\n The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. These appeals by certificate arise from the decision of the Madras High Court dated 4th April, 1972 in Tax Cases Nos. 158-161 of 1966. These are in respect of assessment under Central Sales Tax Act, 1956. The assessees in the four tax cases were assessed under Central Sales Tax Act, 1956 (hereinafter called the 'Act'). The assessment years involved are 1958-59 to 1961-62. It was found that the assessees had purchased motor spare parts on the basis of the 'C' form certificates issued to them under the provisions of the said Act for sale, but instead of selling those, the assessees had used those for their own consumption.\n930 The revenue proceeded on the basis that since the goods purchased had not been used for the purposes specified in section 8(3)(b) of the Act and as recorded in the 'C' form certificates, the assessees had committed offences under section 10(d) of the Act inasmuch as they had used the goods purchased by them on the basis of 'C' form certificate for the purpose other than the one mentioned in the certificates and therefore were liable to pay penalty as well. All the authorities including the Tribunal had found that the assessees had actually committed the offences under section 10(d) of the Act in using the goods for the purposes other than the one mentioned in 'C' form certificates. Being a finding of fact, the High Court proceeded on the basis that the assessees had committed the offence. The question that was posed before the High Court was what was the quantum of penalty that had to be levied under section 10-A of the Act.\nSection 10-A of the Act deal with penalties. Section 10-A is a provision for imposition of penalty in lieu of prosectuion. This section was initially added by section 8 of the Amendment Act 31 of 1958 with effect from 1st October, 1958. This section has undergone several amendments. On 9th June, 1969 with retrospective effect the section was amended. The section was again amended with effect from 1st April, 1973. Sub-section (1) of section 10A which is material for our present purpose at the relevant time was as follows : \"10A. (1) If any person purchasing goods is guilty of an offence under clause (b) or clause (c) or clause (d) of section 10, the authority who granted to him, or as the case may be, is competent to grant to him a certificate of registration under this Act may after giving him a reasonable opportunity of being heard, by order in writing, impose upon him by way of penalty a sum not exceeding one-and-a-half times the tax which would have been levied under this Act in respect of the sale to him of the goods, if the offence had not been committed; Provided that no prosecution for an offence under section 10 shall be instituted in respect of the same facts on which a penalty has been imposed under this section.\"\n931 Sub-section (1) of section 10A provided that if any A person purchasing goods is guilty of an offence under clause (b) or clause (c) or clause (d) of section 10, the authority who granted to him or, as the case may be, is competent to grant to him a certificate of registration under the Act, may, after giving him a reasonable opportunity of being heard, by an order in writing, impose upon him by way of penalty sum not exceeding one-and-a-half times the tax which would have been levied at the relevant time in respect of sale of goods if the offence had not been committed. The only question that was under consideration was the quantum of penalty that had to be levied under section 10A of the Act.\n It may be mentioned that section 10 imposes penalty if any person, inter alia, under clause (d) of section 10 after purchasing any goods for the purpose specified in clause (b) or clause (c) or clause (d) of sub-section (3) of section 8, fails without reasonable excuse to make use of the goods for the purposes mentioned in the certificates. Section 8 deals with the rates of tax on sales in the course of inter-State trade or commerce. it stipulates that every dealer, who in the course of inter-State trade or commerce, inter alia, sells to a registered dealer other than the Government goods of the description referred to in sub-section (3) shall be liable to pay tax under the Act, which shall be four per cent now and at the relevant time prior to 1975 was three per cent of the turnover. Sub-section (3) of section 8 deals with the goods referred to in clause (b) of sub-section (1) of section 8.\n The Tribunal as mentioned hereinbefore accepted the contention that the penalty liable under section 10A in this case should be one-and-a-half times the concessional rate of tax and not one-and-a half times the tax which would have been leviable if no 'C' form certificate had been produced.\nThe Revenue challenged before the High Court the correctness of the view taken by the Tribunal.\n The High Court followed the decision of the Madras High Court in the State of Madras v. Prem Industrial Corporation, 24 S.T.C. 507. Another view was expressed by the Mysore High Court in M. Pais & Sons and another v. The State of Mysore, 17 S.T.C. 161 and the Orissa High Court in Bisra Limestone Company Ltd. v. Sales Tax Officer, Rourkela Circle, uditnagar, & Ors., 27 S.T.C. 531 took a different view. It also appears H 932 that in Bisra Limestone Company Ltd., the decision of the Madras High Court in The State of Madras v. Prem Industrial corporation, (supra) was specifically referred to but was not accepted as laying down the correct principle.\n In the impugned judgment, the Madras High Court was of the view that these decisions apart from the decision of the Madras High Court in The State of Madras v. Prem Industrial Corporation had proceeded on the basis that if the offence had been committed under section 10A, it should be taken that the concerned assessee never applied for and obtained any valid certificate in form 'C' which would have entitled him to have the beneficial rate of tax and that therefore the penalty leviable under section 10A could only be 1-1/2 times the normal tax i.e. 1-1/2 times the tax that the dealer would have been liable to pay if he had not taken 'C' form certificate. The Madras High Court was on the view that if the principle on which the learned judges of the Mysore and Orissa High Courts in the above-mentioned decisions had proceeded was correct, then there was no question of any offence being committed by the assessee in not taking 'C' form certificate, though the assessee might be thrown open to a larger and normal rate of tax in place of concessional rate of tax. The Madras High Court in the judgment under appeal was unable to accept the principle laid down by the two decisions of the Mysore High Court and the Orissa High Court respectively. In that view of the matter, the challenge of the Revenue to the decision of the Tribunal failed.\n Aggrieved by the impugned decision and in view of the conflict of decisions between different High Courts, the Revenue has come up in these appeals.\n In M. Pais & Sons & Anr. v. The State of Mysore, (supra), Hegde, J. as the learned judge then was in the Mysore High Court held that as the goods purchased by the petitioner in that case were not covered by any valid 'C' form, sales tax was leviable at 7 per cent, and therefore the penalty that was leviable 10-1/2 per cent of the turnover. The petitioner, in another case, had manufactured soap and he had included the following goods in his application for certificate of registration under section 8: coconut oil, perfumes, silicate, caustic soda, nails, colours, strappings, papers and rosin.\n933 During the relevant year the petitioner purchased maroti oil A and groundnut oil by using some of the 'C' forms. The question was whether he was guilty of the offence under section 10(b) of the Act. The last contention urged in that case as appears from page 169 of the report was that on a true interpretation of section 10A it was clear that the assessee should have been levied penalty only at 1-1/2 per cent of the disputed turnover and not at the rate of 10-1/2 per cent as was done by the authorities below. This contention did not appears to the High Court to be correct.\nAll the sales of goods validly covered by 'C' forms were liable to be taxed at 1 per cent of the turnover. Such of the goods which were not validly covered by 'C' forms were liable to be taxed at 7 per cent of the turnover. The penalty provided by section 10A was 1-1/2 times the tax leviable. It was found in that case that the goods with which the Court was concerned were not covered by any valid 'C' forms and, therefore, sales tax was leviable on them at 7 per cent of the turnover. If that was so, then the penalty on that turnover was leviable at 10-1/2 per cent of the turnover.\n The Madras High Court in The State of Madras v. Prem Industrial Corporation, (supra) had occasion to consider this question and it was upon this decision that the Madras High Court in the judgment under appeal relied. There it was held that for an offence committed within the scope of section 10(b) of the Act by the misuse of 'C' forms, the penalty at one and a half times should be calculated on the concessional rate of tax that would have been applicable of the offence had not been committed, that is, if the 'C' forms had been properly used, and not on the basis OF the rate for sales not covered by the 'C' forms. The attention of the Madras High Court was drawn to the judgment of the Mysore High Court in the case of M. Pai & Sons. v. The State of Mysore, (supra). The Madras High Court, however, felt that the decision did not take into account the concluding words 'if the offence had not been committed' In section 10A. In that case before the Madras High Court, the revenue sought to revise and order of the Sales-tax Appellate Tribunal by which it modified the penalty imposed. It was not in controversy in that case as in the instant cases before us that 'C' forms had been misused and thereby an offence was committed within the scope of section 10(b) of the Act. The department had levied penalty at 10-1/2 per cent on the view that in the circumstances, the 934 concessional rate would not be available and that the assessee would be liable to tax at 7 per cent under section 8(2) of the Act. The Tribunal reduced the penalty to one and a half times the tax, as, in its opinion, for purposes of levying penalty, the rate of tax should be taken as that which would have been applicable if the offence had not been committed. The Madras High Court accepted this view.\nAccording to the Madras High Court, the department's contention did not give effect to the concluding words of section 10A 'if the offence had not been committed'. The High Court was of the view that the offence under the provision was that a person being a registered dealer, falsely represented when purchasing any class of goods that goods of such class were covered by his certificate of registration. The words 'if the offence had not been committed' clearly pointed to the result that the tax for purposes of assessing one and a half times thereof was not that which would have been levied on the basis that the 'C' forms had not been complied with or had been misused, but, as n if they had been used in a proper way. It is this view which found favour in the impugned judgment before us.\n The question again cropped up before the Orissa High Court in Bisra Limestone Company Ltd. v. Sales Tax Officer, (supra). There the Orissa High Court was of the view that the question of penalty would arise only when the goods were not mentioned In the certificate of registration and purchase of the same was made on a false representation made by the purchasing dealer that these were so mentioned. If the normal rate had been paid for the goods, without making any false representation, no offence under section 10(b) would be committed. It was only to such cases that the expression \"if the offence had not been committed\" had application and therefore the penalty payable under section 10A would be one and a half times the normal rate and not the concessional rate. Based on the language of section 10A(1), a contention was raised before the High Court that penalty should bot exceed one-and-a-half times the tax which would have been levied under this act in respect of the sale to him of the goods, if the offence had not been committed'.\nAccording to the contention if the goods were purchased on concessional rate on false representation that these were covered under the registration, the penalty that imposed should not exceed one and a 935 half times the concessional rate and not the normal rate.\nThe contention was held not to be sound. The Orissa High Court was of the view that if the goods mentioned in the certificate of registration and the goods purchased at concessional rate as purchasing dealer committed no offence under section 10(b) of the Act the question of imposing penalty did not arise. The question of penalty would arise only when goods were not mentioned in the certificate of registration and purchase of the same is made on a false representation by the purchasing dealer that they were so mentioned. If the normal rate had been paid for the goods without making any false representation, no offence under section 10(b) would be committed. It was only to such cases that the expression 'if the offence had not been committed' had application and the penalty payable would be one and a half times the normal rate.\n The question was again considered by the Full Bench of Jammu & Kashmir High Court in the case of The assessing Authority and another v. Jammu Metal Rolling Mills, [1971] Tax Law Report 1861. There Jaswant Singh, J. as the learned judge then was of the Jammu & Kashmir High Court, had occasion to consider the concluding words of section 10A i.e. 'impose upon him by way of penalty a sum not exceeding one and a half times the tax which would have been levied under this Act in respect of the sale to him of the goods if the offence had not been committed' and it was interpreted as not to mean that the penalty should be calculated at one and a half times the concessional rate of tax. All that the aforesaid words, according to the J & K High Court, meant was that the person committing the offence specified in section 10(d) would be liable to penalty which would extend to one and a half times the tax payable by a person who purchased goods for the purpose covered by the certificate of registration or the penalty would be upto one and a half times the tax which an honest dealer would have normally to pay while purchasing the goods of similar description for similar use. Any other interpretation according to the said High Court, would have the effect of putting a premium on the misuse of certificate of registration by unscrupulous dealers. The said High Court relied on the observations of the Orissa High Court in Bisra Limestone Co. Ltd., (supra) and also the Mysore High Court's view mentioned hereinbefore. The J & K High Court was unable to agree with the views of the Madras High Court in The State of Madras v.\nPrem Industrial Corporation (supra).\n936 The question again came to be considered by the Kerala High Court in the case of Kottayam Electricals Private Limited v. The State of Kerala, 32 S.T.C. 535. mere the submission was that the courts should construe the phrase 'if the offence had not been committed' to mean 'if the assessee had not misused or misapplied the goods'. The argument was that if the goods were not misused or misapplied the tax payable would be at the concessional rate of 3 per cent under section 8(1)(b) of the Act and that the maximum penalty that could be imposed could only be one and a half times the tax calculated at 3 per cent on the turnover in respect of which the offence had been committed.\nAfter discussing the contentions and acknowledging that section 10A was not happily worded, the High Court felt that it was unable to accept the view of the Madras High Court in State of Madras v. Prem Industrial Corporation, (supra). The High Court was of the opinion that if the court interpreted the section to mean that such a person need pay penalty calculated only at the rate of one-and-a-half times the 'concessional rate', it would lead to absurd consequences.\nIt accepted the views of the Orissa as well as the Mysore High Courts mentioned hereinbefore.\n The Gujarat High Court had occasion to consider this question again in the case of The Gaekwar Mills Ltd. v. The State of Gujarat, 37 S.T.C. 129. me Gujarat High Court was of the view that the penalty which was contemplated by section 10A of the Act, was to be worked out by reference to the rate of tax provided in section 8(2) of the Act and not by reference to the concessional rate of tax provided in section 8(1) of the Act. The Gujarat High Court felt that the Tribunal was justified in rejecting the contention of the assessee that the maximum penalty that could be levied under section 10A was 1-1/2 times the concessional rate of tax provided in section 8(1). Dealing with the several authorities noted hereinbefore and the scheme and language of the section, the Gujarat High Court was of the opinion that to accept the contention that the true effect of the words 'if the offence had not been committed' was to presume a situation in which the undertaking given by the declaration was carried out even though in fact the same was not carried out that would not be a proper presumption because if such a presumption was raised, it would make the whole situation highly absurd. The absurdity would be that for the purpose of penalising the defaulter, a presumption was to be made that the defaulter was not one who had 937 Committed any default. The legislature could not be attributed with any such absurd intention. The High Court noted that while framing section 10A, the legislature had not used the expression 'as if', at the time of using the words 'if the offence had not been committed', at choice of the word 'if', instead of the expression 'as if' indicated a conditional phrase, and not a phrase prescribing a deeming fiction. The High Court was of the view that the interpretation canvassed by the assessee obviously introduced the concept of a fiction which treated the offender as one who had not offended. Section 10A was a penal provision which stipulated penalty in lieu of the prosecution. me High Court expressed the view that one has yet to come across a penal provision, which created a fiction that an offender was not an offender, and should, therefore, be treated as a non-offender. Obviously, by such a fiction, the very object of the penal provision in question was frustrated and, therefore, the legislature could never have intended that by the creation of the above- referred fiction, the very object of introducing the penal clause contained in section 10A of the Act should have been destroyed. The truth of the matter, according to the High Court, was that the use of the word \"if\" simpliciter, was meant to indicate a condition, the condition being that at the time of assessing the penalty, that situation should be visualised wherein there was no scope of committing any offence. Such a situation could arise only if the tax liability fell within the provisions of sub-section (2) of section 8 of the Act. The scheme of the section showed that concessional rates contemplated by sub-section (1) thereof would be available only with reference to those goods which were covered by the declaration of form 'C'. This was clear in the scheme of the section. Further the High Court noted that if the contention canvassed by the assessee was accepted, then the person who committed default In carrying out his solemn undertaking contemplated by form 'C', would be in a better position than the assessee, who honestly paid the tax under sub-section (2) of section 8 without giving any undertaking contemplated by form 'C ' .\n In the case of Deputy Commissioner of Commercial Taxes, Madurai Division, Madurai v. Kodaikanal Motor & ion Private Limited, 31 S.T.C. 1 the Madras High Court agreed with the view of Veeraswami, C.J. in State of Madras v. Prem Industrial M Corporation, (supra).\n938 The section as it stood at the relevant time permitted imposition on dealer by way of penalty of a sum not exceeding one-and-a-half times the tax which would have been levied under this Act in respect of the sale of goods to him 'if the offence had not been committed'. The section as it reads today after amendment in 1973 permits imposition by way of penalty of a sum not exceeding one-and-a-half times the tax which would have been levied under sub-section (2) of section 8. Sub-section (2) of section 8 deals with tax in the course of inter-State sales.\n Lord Denning, in Seaford Court Estates v. Asher, [1949] 2 All E.R. 155 at 164 said thus : \".... When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament......... and then he must supplement the written word so as to give 'force and life' to the intention of the legislature....... A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases.\"\n The courts must always seek to find out the intention of the legislature. Though the courts must find out the intention of the statute from the language used, but language more often than not is an imperfect instrument of expression of human thought. As Lord Denning said it would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity. As judge Learned Hand said, we must not make a fortress out of dictionary but remember that statutes must have some purpose or object, whose imaginative discovery is judicial craftsmanship. We need not always cling to literalness and should seek to endeavor to avoid an unjust or absurd result. We should not make a mockery of legislation. To make sense out of an unhappily worded provision, where the purpose is apparent to the judicial eye 'some' violence to language is permissible.\n(See K. P. Varghese v. Income-Tax 939 Officer, Ernakulam & Anr., 131 I.T.R. 597 at 604 to 606 and Luke v. Inland Revenue Commissioner, 54 I.T.R. 692.\n Bearing the scheme of the Act in perspective we are of the opinion that the contention of the revenue in this case has to be accepted. 'If the offence had not been committed' cannot have the effect that penalty should be levied on the basis of the rate which would have been levied had no offence been committed under clause (d) of section 10 of the Act. For the purpose of imposition of penalty, it could not be treated that the rate which would govern the question of penalty was the rate which could be levied on the basis that the assessee had made no fault. It would lead to putting a premium on avoidance of the provisions of the Act.\n In our opinion sub-section (1) of section 10A makes it clear that penalty should be worked out at the rate of tax which would have been levied if the offence had not been committed. In other words the question is what tax would have been levied under the Act if the offence had not been committed. The assessee would not have committed any offence only if he had carried out the undertaking given by it in its declaration in form 'C' or if he purchased the goods without giving any declaration thereby incurring liability to pay normal rate of tax as contemplated by sub-section (2) of section 8. One who commits defaults cannot be said to have carried out the undertaking given by him. The presumption canvassed to be raised that the true effect of the words 'if the offence had not been committed' was to presume a situation In which the undertaking given by the assessee had been carried out even though In fact the same had not been carried out. That would be an absurd result. In our opinion the else of the expression 'if' simpliciter, Will meant to indicate a condition, the condition being that at the time of assessing The penalty, that situation should be visualised wherein there was no scope of committing any offence. Such a situation could arise only if the tax liability fell under sub-section (2) of section 8 of the Act. The scheme of section 8 indicated that concessional rates contemplated by sub-section (1) thereof would be available only with reference to those goods which are covered by the declarations in form 'C'. The moment it Is found that in respect of particular quantity of goods the undertaking given by the assessee In form 'C' declaration has 940 not been carried out, the goods were presumed to be such in respect of which no undertaking was existing. Therefore such goods would be liable to normal tax contemplated under sub- section (2) of section 8. Therefore, the penalty should be worked out only on the basis of the normal rates prescribed under sub-section (2) of section 8. That would make sense.\n That is a reasonably possible construction. That would avoid absurd result.\n It is further to be borne in mind that section 10A was introduced for imposition of penalty in lieu of prosecution, that is to visit the person guilty with certain penalty in place of prosecution. He cannot be placed in a better position than one who would have complied with the provisions of the Act. In this respect having regard to the object of the Act, in our opinion, we are in full agreement with the views expressed by the Gujarat High Court in The Gaekwar Mills Ltd. v. The State OF Gujarat, (supra). As Lord Denning has said, the judge has to perform the constructive task OF finding the intention of Parliament, and he must supplement the written word so as to give 'force and life' to the intention of the legislature. Primarily, it is always the duty to find out the intention of the legislature and if it can be done without doing much violence to the language as we Find it can be done in this case, though as we have noted that when the purpose was writ large in the scheme of the section \"some violence\" is permissible, here we are of the opinion that the construction put by the assessee cannot be accepted and the contention urged on behalf of the revenue in this case should be preferred.\n We must remember that the provision is a penal provision. It has further to be borne in mind that the expression 'if' is not same as 'as if' nor does it contemplate a deeming provision. It has also to be borne in mind that the provision was introduced for the imposition of penalty in lieu of prosecution. The purpose of the Act and the object of a particular section has to be borne in mind.\n Having regard to the same, we are in agreement with he views expressed by the Orissa High Court in Bisra Limestone Company Ltd. v. Sales Tax Officer, Rourkela Circle, Uditnagar, and Others, (supra), Jammu & Kashmir High Court in The Assessing Authority and another v. Jammu Metal Rolling Mills, (supra), the High Court of Kerala 941 in Kottayam Electricals Private Limited v. The State of Kerala (supra). The High Court of Mysore in M. Paid & Sons v. The State of Mysore (supra), the High Court of Gujarat in The Gaekwar Mills Ltd. v. The State of Gujarat (supra) and with respect we are unable to accept the views of Veeraswami, C.J. in State of Madras v. Prem Industrial Corporation (supra), and the other decision of the Madras High Court in Deputy Commissioner of Commercial Taxes (supra).\n In the premises the dealer's contention cannot be accepted and revenue's stand must be upheld.\n The decision under appeal cannot, therefore, be sustained. The appeals are allowed and the judgment and order of the High Court of Madras are set aside. The revenue is entitled to the costs of these appeals.\n A.P.J. Appeals allowed.\n 945 "
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{
"from_name": null,
"id": "105da1d4c42f41d8b6284d24768f74a4",
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"end": 105,
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"start": 0,
"text": "IN THE HIGH COURT OF KARNATAKA AT BANGALORE\n\n DATED THIS THE 27TH DAY OF MAY, 2013\n\n BEFORE"
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},
{
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"id": "c2989704eb66418aab00b4f0610be19d",
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"start": 105,
"text": "\n\n THE HON'BLE MR.JUSTICE ARAVIND KUMAR"
}
},
{
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"id": "059377a39b2b4c56ba0282be7a83d927",
"to_name": null,
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"value": {
"end": 200,
"labels": [
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],
"start": 149,
"text": "\n\n WRIT PETITION NOS. 50979-50982/2012 (T-KST)"
}
},
{
"from_name": null,
"id": "e95f130b93ef4e98bb27a55801786296",
"to_name": null,
"type": null,
"value": {
"end": 269,
"labels": [
"PREAMBLE"
],
"start": 202,
"text": "BETWEEN:\n\nDayananda Extraction ... Petitioner\n"
}
},
{
"from_name": null,
"id": "5d0663f9a20a46128902ba349274eade",
"to_name": null,
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"value": {
"end": 363,
"labels": [
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],
"start": 269,
"text": "Industries Pvt. Ltd.,\nP.B.No.47, Venkateshapura,\nMadhugiri Road,\nTumkur-572 106\nRepresented by"
}
},
{
"from_name": null,
"id": "40f565c209854fd186373bec5032362e",
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"value": {
"end": 382,
"labels": [
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],
"start": 363,
"text": "\nSmt.K.S.Dakshayani"
}
},
{
"from_name": null,
"id": "46ee2514b2004bbca764c76970aaae7d",
"to_name": null,
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"value": {
"end": 418,
"labels": [
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],
"start": 382,
"text": ".\n\n(By Sri.M.V.Seshachala, Advocate)"
}
},
{
"from_name": null,
"id": "71a4ba3b68834df09c206ed4fc20c7ea",
"to_name": null,
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"value": {
"end": 502,
"labels": [
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],
"start": 420,
"text": "AND:\n\n1. Deputy Commissioner of\n Commercial Taxes (Assessments),\n "
}
},
{
"from_name": null,
"id": "3fda8e5a2dc649a08802f1ca35c2109b",
"to_name": null,
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"value": {
"end": 512,
"labels": [
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],
"start": 502,
"text": "Sira Gate,"
}
},
{
"from_name": null,
"id": "0eb044cb848b4d549951e2833f2f5d61",
"to_name": null,
"type": null,
"value": {
"end": 537,
"labels": [
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],
"start": 512,
"text": "\n Tumkur-572 106."
}
},
{
"from_name": null,
"id": "c3939ce0620f4f5781ad62104a4bc088",
"to_name": null,
"type": null,
"value": {
"end": 770,
"labels": [
"PREAMBLE"
],
"start": 539,
"text": "2. State of Karnataka, .....Respondents\n Revenue Department,\n M.S. Building,\n Bangalore-560 001\n Represented by\n Its Secretary.\n\n(By Sri.K.M.Shivayogiswamy, AGA)\n\n "
}
},
{
"from_name": null,
"id": "01183e2c3e4f4e6ea2f7bc385975bf0b",
"to_name": null,
"type": null,
"value": {
"end": 1123,
"labels": [
"PREAMBLE"
],
"start": 770,
"text": "Writ petitions are filed under Article 226 and 227 of\nthe Constitution of India, praying to quash the order passed\nby the 1st respondent for the assessment years 2000-01,\n\n2001-02, 2002-03 and 2003-04 by setting aside the orders\ndated 6.7.2011 respectively vide Annexures-Y, Z, A1, A2\nrespectively in the light of the law declared by this Hon'ble\nCourt."
}
},
{
"from_name": null,
"id": "6a165cbe38ed4f64a8396b5b862f3b05",
"to_name": null,
"type": null,
"value": {
"end": 1262,
"labels": [
"PREAMBLE"
],
"start": 1123,
"text": "\n\n These petitions coming on for hearing this day, the\nCourt made the following:\n\n O R D E R\n "
}
},
{
"from_name": null,
"id": "8b27d1ccbf9e4ec880a435db7df8d763",
"to_name": null,
"type": null,
"value": {
"end": 1397,
"labels": [
"NONE"
],
"start": 1262,
"text": "Heard Sri M V Seshachala, learned Advocate appearing for petitioner and Sri Shivayogiswamy, learned Advocate appearing for respondents."
}
},
{
"from_name": null,
"id": "d564152cd82c48b6bf71d032a65ab13b",
"to_name": null,
"type": null,
"value": {
"end": 1636,
"labels": [
"FAC"
],
"start": 1399,
"text": "2. Petitioner is seeking for quashing of the order passed by first respondent dated 06.07.2011 produced at Annexures-Y, Z, A1 and A2 respectively whereunder assessment orders have been passed on 06.03.2011 by determining the tax payable."
}
},
{
"from_name": null,
"id": "4ce2eabc5a614d3c9c29fcbeca44551e",
"to_name": null,
"type": null,
"value": {
"end": 1827,
"labels": [
"NONE"
],
"start": 1636,
"text": "\n 3. In the normal course, this Court would have refused to interfere with the orders passed by first respondent on the ground of alternate remedy of appeal being available to the petitioner."
}
},
{
"from_name": null,
"id": "1b06d38fad5e41b69bf406d367114d81",
"to_name": null,
"type": null,
"value": {
"end": 1950,
"labels": [
"NONE"
],
"start": 1828,
"text": "However, factual matrix in the present case has persuaded me to take a different view for the reasons stated herein below:"
}
},
{
"from_name": null,
"id": "6cd575e478654422af17ab8cc20719f6",
"to_name": null,
"type": null,
"value": {
"end": 2105,
"labels": [
"FAC"
],
"start": 1951,
"text": "Petitioner is a private limited company engaged in the operation of extraction of oil from rice bran , soya bean seeds and oil cakes and selling the same."
}
},
{
"from_name": null,
"id": "48bd9ff1bca04813889dc62380f1aa2b",
"to_name": null,
"type": null,
"value": {
"end": 2226,
"labels": [
"FAC"
],
"start": 2106,
"text": "Petitioner is a registered dealer under the provisions of Central Sales Tax Act, 1956 and Karnataka Sales Tax Act, 1957."
}
},
{
"from_name": null,
"id": "7b687309da6b4f6ca9e9c2314e9def8b",
"to_name": null,
"type": null,
"value": {
"end": 2446,
"labels": [
"FAC"
],
"start": 2227,
"text": "For the assessment years 2000-01 to 2003-04 annual returns in form No.4 was filed by the petitioner by claiming deductions in respect of the products that have already said to have suffered tax in its original identity."
}
},
{
"from_name": null,
"id": "61df9218c9bd4f15adf3a1991898a2fa",
"to_name": null,
"type": null,
"value": {
"end": 2840,
"labels": [
"FAC"
],
"start": 2447,
"text": "Assessment orders came to be passed on 29.05.2004 for the assessment year 2000-01, 25.04.2003 for the assessment year 2001-02, 29.05.2006 for the assessment year 2002-03 and on 07.06.2006 for the assessment year 2003-04 by holding that residue of rice bran and soya bean seeds and oil cakes after extraction of oil is also exigible to sales tax as it came to be treated as different commodity."
}
},
{
"from_name": null,
"id": "9db40e807906496381687342f9f1156e",
"to_name": null,
"type": null,
"value": {
"end": 3097,
"labels": [
"FAC"
],
"start": 2841,
"text": "Rectification applications were filed by the petitioner by relying upon various circulars issued by the Departments and the Judgments of this Court on the issue contending that once original product has suffered tax, its residue cannot be taxed once again."
}
},
{
"from_name": null,
"id": "c8b9ee570cab4bf5bd07e05b66b0e0e3",
"to_name": null,
"type": null,
"value": {
"end": 3370,
"labels": [
"FAC"
],
"start": 3098,
"text": "Said applications for rectification came to be rejected by order dated 22.10.2008 (for the assessment year 2000- 01), 19.11.2008 (for the assessment years 2001-02, 2002-03 and 2003-04) and re-rectification orders on 09.11.2009 for the assessment years 2000-01 and 2001-02."
}
},
{
"from_name": null,
"id": "d27de209d811483791fad6fe4390c555",
"to_name": null,
"type": null,
"value": {
"end": 3582,
"labels": [
"FAC"
],
"start": 3371,
"text": "On the basis of assessment orders, demand notices came to be issued and also a petition under Section 13(3)(b) of Karnataka Sales Tax Act, 1957 for recovery was also filed before jurisdictional Magistrate Court."
}
},
{
"from_name": null,
"id": "a24057bcd4d24adbae934e7eedfe3d00",
"to_name": null,
"type": null,
"value": {
"end": 3732,
"labels": [
"FAC"
],
"start": 3582,
"text": "\n 4. Being aggrieved by the assessment orders and rejection of rectification applications, petitioner approached this Court in W.P.Nos.7617-7620/2012."
}
},
{
"from_name": null,
"id": "f537034d454c4f66bb94a4a439a977b9",
"to_name": null,
"type": null,
"value": {
"end": 3901,
"labels": [
"FAC"
],
"start": 3732,
"text": "\nThis Court by order dated 23.02.2011 allowed the writ petitions and directed the writ petitioner to appear before the respondent-authority and to seek for reassessment."
}
},
{
"from_name": null,
"id": "80762e21441d48a6be033d8b11dbf5c3",
"to_name": null,
"type": null,
"value": {
"end": 3979,
"labels": [
"FAC"
],
"start": 3902,
"text": "The order passed by this Court reads as under: \"Hence, petitions are allowed."
}
},
{
"from_name": null,
"id": "5e53693e2de34ba484f2140137116797",
"to_name": null,
"type": null,
"value": {
"end": 4084,
"labels": [
"FAC"
],
"start": 3980,
"text": "It is for the petitioner to appear before the respondent-authority seeking for reassessment."
}
},
{
"from_name": null,
"id": "9646be78cb364023b301282e61626b5e",
"to_name": null,
"type": null,
"value": {
"end": 4232,
"labels": [
"FAC"
],
"start": 4085,
"text": "The respondent authority shall entertain the appeal after condoning the delay and pass orders in accordance with law, within one month thereafter.\""
}
},
{
"from_name": null,
"id": "d869757ae0464bfa93b9f114794103fa",
"to_name": null,
"type": null,
"value": {
"end": 4585,
"labels": [
"ANALYSIS"
],
"start": 4234,
"text": "Pursuant to the direction given by this Court, assessment orders came to be passed on 06.07.2011 for the above referred assessment years vide Annexures Y, Z, A1 and A2, by holding that residue of rice bran, Soya bean seeds and oil cakes after extraction of oil is liable to sales tax as it is a different commodity and proceeded to levy penalty also."
}
},
{
"from_name": null,
"id": "919ae5ed59984ce8823ab167b1d89c40",
"to_name": null,
"type": null,
"value": {
"end": 4845,
"labels": [
"ANALYSIS"
],
"start": 4587,
"text": "5. Though learned Government Advocate attempted to defend the said order, he was fair enough to state that judgments relied upon by the assessee filed along with his letter dated 21.06.2011 has not been discussed in the assessment order passed on 06.07.2011."
}
},
{
"from_name": null,
"id": "5f98f42a8517488bb7d370bd0924e049",
"to_name": null,
"type": null,
"value": {
"end": 5331,
"labels": [
"ARG_PETITIONER"
],
"start": 4846,
"text": "It is the specific contention of the petitioner that rice bran has already been subjected to tax and rice bran and oil being one and the same commodity as held in W.P.No.25722/1998 and several judgments passed by this Court, assessing Officer ought to have taken note of these judgments into consideration and same not having been taken into consideration and mechanically order having been passed, petitioner had approached this Court on the earlier occasion in W.P.Nos.7617-7620/2011"
}
},
{
"from_name": null,
"id": "455c2463e9a04d57b2b4a752abed45ab",
"to_name": null,
"type": null,
"value": {
"end": 5536,
"labels": [
"ARG_PETITIONER"
],
"start": 5332,
"text": "and as such direction came to be issued to assessing officer to redo the assessment and assessing officer ought to have examine the law laid by this court and should have applied the same to facts on had."
}
},
{
"from_name": null,
"id": "dc6a1c0af63043e4b31107d1bef6d724",
"to_name": null,
"type": null,
"value": {
"end": 5743,
"labels": [
"ARG_PETITIONER"
],
"start": 5537,
"text": "He would also contend that when matter having been remanded to the assessing officer, it was incumbent upon the assessing officer to delve upon the issue on hand before him and pass suitable orders thereon."
}
},
{
"from_name": null,
"id": "35599d596327488cb735a930e4d6aa28",
"to_name": null,
"type": null,
"value": {
"end": 5869,
"labels": [
"ANALYSIS"
],
"start": 5743,
"text": "\n 6 Perusal of the impugned orders would clearly indicate that there was no such exercise undertaken by the assessing officer."
}
},
{
"from_name": null,
"id": "90efdf41aae940769c433ee0d832e72c",
"to_name": null,
"type": null,
"value": {
"end": 6068,
"labels": [
"ANALYSIS"
],
"start": 5870,
"text": "Assesse/Petitioner had filed a letter dated 21.06.2011 before the assessing officer enclosing the copies of the orders passed by this Court and has contended same is applicable to the facts on hand."
}
},
{
"from_name": null,
"id": "c597dd2c57394e9a940b6d49cdb447cf",
"to_name": null,
"type": null,
"value": {
"end": 6187,
"labels": [
"ANALYSIS"
],
"start": 6069,
"text": "The assessment orders (Annexure Y, Z, A1 &A2) dated 06.07.2011 do not indicate about consideration of these judgments."
}
},
{
"from_name": null,
"id": "adcce56270ef4f14b8be40aa634bebea",
"to_name": null,
"type": null,
"value": {
"end": 6279,
"labels": [
"ANALYSIS"
],
"start": 6188,
"text": "There is no discussion as to how the said judgments are inapplicable to petitioner's claim."
}
},
{
"from_name": null,
"id": "981726ecef7d4f04aa9965769c67fd71",
"to_name": null,
"type": null,
"value": {
"end": 6372,
"labels": [
"ANALYSIS"
],
"start": 6280,
"text": "It is for this precise reason this court had set-aside the assessment orders passed earlier."
}
},
{
"from_name": null,
"id": "48b29ac949b547c59cb1bd936098692d",
"to_name": null,
"type": null,
"value": {
"end": 6463,
"labels": [
"ANALYSIS"
],
"start": 6373,
"text": "Even now in the impugned orders no such exercise has been undertaken by assessing officer."
}
},
{
"from_name": null,
"id": "509204325e46482aaa61cfd750a8f9ca",
"to_name": null,
"type": null,
"value": {
"end": 6823,
"labels": [
"RATIO"
],
"start": 6464,
"text": "In that view of the matter, assessment orders dated 06.07.2011 - Annexures-Y, Z, A1 and A2 cannot be sustained particularly in the background of the direction issued by this Court earlier on 23.02.2011 in W.P.Nos.7617-7620/2011 and same is liable to be quashed and matter requires to be remitted back to the assessing officer to pass assessment orders afresh."
}
},
{
"from_name": null,
"id": "d2e3b53404cc4739953b1b1bf05cb7a0",
"to_name": null,
"type": null,
"value": {
"end": 6854,
"labels": [
"RPC"
],
"start": 6825,
"text": "6. Hence, following order: i."
}
},
{
"from_name": null,
"id": "9d58edadb23b4f25838ec3e81571247b",
"to_name": null,
"type": null,
"value": {
"end": 6889,
"labels": [
"RPC"
],
"start": 6855,
"text": "Writ petitions are hereby allowed."
}
},
{
"from_name": null,
"id": "6e72dfb33dbf4330af6d6f74f0aadea6",
"to_name": null,
"type": null,
"value": {
"end": 7021,
"labels": [
"RPC"
],
"start": 6904,
"text": "ii. Assessment Orders dated 06.07.2011 passed by first respondent at Annexures- Y, Z, A1 and A2 are hereby set-aside."
}
},
{
"from_name": null,
"id": "9273500d9fd14aada05a2cd8eedd2628",
"to_name": null,
"type": null,
"value": {
"end": 7109,
"labels": [
"RPC"
],
"start": 7021,
"text": "\n iii. Matter is remitted back to first respondent for passing assessment orders afresh."
}
},
{
"from_name": null,
"id": "083a1f32e58248c58e7e56b66b12b2e8",
"to_name": null,
"type": null,
"value": {
"end": 7243,
"labels": [
"RPC"
],
"start": 7111,
"text": "iv. Petitioner shall appear before the assessing officer on 10.06.2013 without waiting for any further notice from first respondent."
}
},
{
"from_name": null,
"id": "7747193fddf043b2a00c4f3c78bdb4e5",
"to_name": null,
"type": null,
"value": {
"end": 7265,
"labels": [
"RPC"
],
"start": 7243,
"text": "\n v. Assessing officer"
}
},
{
"from_name": null,
"id": "ac9e8c7812c14efa97e0bbca88432fd3",
"to_name": null,
"type": null,
"value": {
"end": 7592,
"labels": [
"RPC"
],
"start": 7266,
"text": " first respondent shall examine the issue afresh without being influenced by any of the observations made earlier and pass orders by taking into consideration judgments rendered by this Court which have been relied upon by the petitioner and enclosed along with its reply letter dated 21.06.2011 (Annexure-V).\n vi."
}
},
{
"from_name": null,
"id": "0efba3108401481f9e6ab25035a8cd22",
"to_name": null,
"type": null,
"value": {
"end": 7623,
"labels": [
"RPC"
],
"start": 7593,
"text": "All contentions are kept open."
}
},
{
"from_name": null,
"id": "25faccd6322b48e382dbdd8987cefafc",
"to_name": null,
"type": null,
"value": {
"end": 7787,
"labels": [
"RPC"
],
"start": 7636,
"text": "vii. First respondent shall pass orders within an outer limit of six weeks from the date of appearance of the petitioner i.e., on or before 22.07.2013."
}
},
{
"from_name": null,
"id": "5ef1db5976dc45e0961245f00384ccd6",
"to_name": null,
"type": null,
"value": {
"end": 7844,
"labels": [
"RPC"
],
"start": 7799,
"text": "viii. Parties to bear their respective costs."
}
},
{
"from_name": null,
"id": "ee8c29bc6c204f9eb5cecd6a4a7cb3a2",
"to_name": null,
"type": null,
"value": {
"end": 7886,
"labels": [
"RPC"
],
"start": 7866,
"text": "Ordered accordingly."
}
},
{
"from_name": null,
"id": "23da3a743fd54177a984334f24f4496d",
"to_name": null,
"type": null,
"value": {
"end": 7902,
"labels": [
"NONE"
],
"start": 7886,
"text": "\n Sd/- JUDGE *sp"
}
}
]
}
] | 4,258 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BANGALORE\n\n DATED THIS THE 27TH DAY OF MAY, 2013\n\n BEFORE\n\n THE HON'BLE MR.JUSTICE ARAVIND KUMAR\n\n WRIT PETITION NOS. 50979-50982/2012 (T-KST)\n\nBETWEEN:\n\nDayananda Extraction ... Petitioner\nIndustries Pvt. Ltd.,\nP.B.No.47, Venkateshapura,\nMadhugiri Road,\nTumkur-572 106\nRepresented by\nSmt.K.S.Dakshayani.\n\n(By Sri.M.V.Seshachala, Advocate)\n\nAND:\n\n1. Deputy Commissioner of\n Commercial Taxes (Assessments),\n Sira Gate,\n Tumkur-572 106.\n\n2. State of Karnataka, .....Respondents\n Revenue Department,\n M.S. Building,\n Bangalore-560 001\n Represented by\n Its Secretary.\n\n(By Sri.K.M.Shivayogiswamy, AGA)\n\n Writ petitions are filed under Article 226 and 227 of\nthe Constitution of India, praying to quash the order passed\nby the 1st respondent for the assessment years 2000-01,\n\n2001-02, 2002-03 and 2003-04 by setting aside the orders\ndated 6.7.2011 respectively vide Annexures-Y, Z, A1, A2\nrespectively in the light of the law declared by this Hon'ble\nCourt.\n\n These petitions coming on for hearing this day, the\nCourt made the following:\n\n O R D E R\n Heard Sri M V Seshachala, learned Advocate appearing for petitioner and Sri Shivayogiswamy, learned Advocate appearing for respondents.\n 2. Petitioner is seeking for quashing of the order passed by first respondent dated 06.07.2011 produced at Annexures-Y, Z, A1 and A2 respectively whereunder assessment orders have been passed on 06.03.2011 by determining the tax payable.\n 3. In the normal course, this Court would have refused to interfere with the orders passed by first respondent on the ground of alternate remedy of appeal being available to the petitioner. However, factual matrix in the present case has persuaded me to take a different view for the reasons stated herein below: Petitioner is a private limited company engaged in the operation of extraction of oil from rice bran , soya bean seeds and oil cakes and selling the same. Petitioner is a registered dealer under the provisions of Central Sales Tax Act, 1956 and Karnataka Sales Tax Act, 1957. For the assessment years 2000-01 to 2003-04 annual returns in form No.4 was filed by the petitioner by claiming deductions in respect of the products that have already said to have suffered tax in its original identity. Assessment orders came to be passed on 29.05.2004 for the assessment year 2000-01, 25.04.2003 for the assessment year 2001-02, 29.05.2006 for the assessment year 2002-03 and on 07.06.2006 for the assessment year 2003-04 by holding that residue of rice bran and soya bean seeds and oil cakes after extraction of oil is also exigible to sales tax as it came to be treated as different commodity. Rectification applications were filed by the petitioner by relying upon various circulars issued by the Departments and the Judgments of this Court on the issue contending that once original product has suffered tax, its residue cannot be taxed once again.\nSaid applications for rectification came to be rejected by order dated 22.10.2008 (for the assessment year 2000- 01), 19.11.2008 (for the assessment years 2001-02, 2002-03 and 2003-04) and re-rectification orders on 09.11.2009 for the assessment years 2000-01 and 2001-02. On the basis of assessment orders, demand notices came to be issued and also a petition under Section 13(3)(b) of Karnataka Sales Tax Act, 1957 for recovery was also filed before jurisdictional Magistrate Court.\n 4. Being aggrieved by the assessment orders and rejection of rectification applications, petitioner approached this Court in W.P.Nos.7617-7620/2012.\nThis Court by order dated 23.02.2011 allowed the writ petitions and directed the writ petitioner to appear before the respondent-authority and to seek for reassessment. The order passed by this Court reads as under: \"Hence, petitions are allowed. It is for the petitioner to appear before the respondent-authority seeking for reassessment. The respondent authority shall entertain the appeal after condoning the delay and pass orders in accordance with law, within one month thereafter.\"\n Pursuant to the direction given by this Court, assessment orders came to be passed on 06.07.2011 for the above referred assessment years vide Annexures Y, Z, A1 and A2, by holding that residue of rice bran, Soya bean seeds and oil cakes after extraction of oil is liable to sales tax as it is a different commodity and proceeded to levy penalty also.\n 5. Though learned Government Advocate attempted to defend the said order, he was fair enough to state that judgments relied upon by the assessee filed along with his letter dated 21.06.2011 has not been discussed in the assessment order passed on 06.07.2011. It is the specific contention of the petitioner that rice bran has already been subjected to tax and rice bran and oil being one and the same commodity as held in W.P.No.25722/1998 and several judgments passed by this Court, assessing Officer ought to have taken note of these judgments into consideration and same not having been taken into consideration and mechanically order having been passed, petitioner had approached this Court on the earlier occasion in W.P.Nos.7617-7620/2011 and as such direction came to be issued to assessing officer to redo the assessment and assessing officer ought to have examine the law laid by this court and should have applied the same to facts on had. He would also contend that when matter having been remanded to the assessing officer, it was incumbent upon the assessing officer to delve upon the issue on hand before him and pass suitable orders thereon.\n 6 Perusal of the impugned orders would clearly indicate that there was no such exercise undertaken by the assessing officer. Assesse/Petitioner had filed a letter dated 21.06.2011 before the assessing officer enclosing the copies of the orders passed by this Court and has contended same is applicable to the facts on hand. The assessment orders (Annexure Y, Z, A1 &A2) dated 06.07.2011 do not indicate about consideration of these judgments. There is no discussion as to how the said judgments are inapplicable to petitioner's claim. It is for this precise reason this court had set-aside the assessment orders passed earlier. Even now in the impugned orders no such exercise has been undertaken by assessing officer. In that view of the matter, assessment orders dated 06.07.2011 - Annexures-Y, Z, A1 and A2 cannot be sustained particularly in the background of the direction issued by this Court earlier on 23.02.2011 in W.P.Nos.7617-7620/2011 and same is liable to be quashed and matter requires to be remitted back to the assessing officer to pass assessment orders afresh.\n 6. Hence, following order: i. Writ petitions are hereby allowed.\n ii. Assessment Orders dated 06.07.2011 passed by first respondent at Annexures- Y, Z, A1 and A2 are hereby set-aside.\n iii. Matter is remitted back to first respondent for passing assessment orders afresh.\n iv. Petitioner shall appear before the assessing officer on 10.06.2013 without waiting for any further notice from first respondent.\n v. Assessing officer first respondent shall examine the issue afresh without being influenced by any of the observations made earlier and pass orders by taking into consideration judgments rendered by this Court which have been relied upon by the petitioner and enclosed along with its reply letter dated 21.06.2011 (Annexure-V).\n vi. All contentions are kept open.\n vii. First respondent shall pass orders within an outer limit of six weeks from the date of appearance of the petitioner i.e., on or before 22.07.2013.\n viii. Parties to bear their respective costs.\n Ordered accordingly.\n Sd/- JUDGE *sp "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "7a07a37bd9e84082bf54527ff2fd35cf",
"to_name": null,
"type": null,
"value": {
"end": 847,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nKISHORE CHAND\n\nVs.\n\nRESPONDENT:\nSTATE OF HIMACHAL PRADESH\n\nDATE OF JUDGMENT29/08/1990\n\nBENCH:\nRAMASWAMY, K.\nBENCH:\nRAMASWAMY, K.\nSAWANT, P.B.\n\nCITATION: 1990 SCR Supl. (1) 105\n 1990 AIR 2140 JT 1990 (3) 662\n 1991 SCC (1) 286\n 1990 SCALE (2)369\n\nACT:\n Indian Penal Code, 1860: ss. 302 & 201--Conviction based\n\non circumstantial evidence--Facts consistent with innocence\nof accused-Whether entitled to benefit of doubt--Tendency of\nfree fabrication of record to implicate innocents in capital\noffence deprecated.\n\n Constitution of India: Articles 14, 19, 21 & 39A/Univer-\nsal Declaration of Human Rights: Articles 3 & 10--Indigent\naccused--Right to liberty and life, equal justice and free\nlegal aid--Need to assign experienced amicus curiae to\nensure effective and meaningful defence emphasised."
}
},
{
"from_name": null,
"id": "24748acc524d452ebcba515f27725963",
"to_name": null,
"type": null,
"value": {
"end": 937,
"labels": [
"PREAMBLE"
],
"start": 849,
"text": "HEADNOTE:\n The appellant was convicted under ss. 302 and 201 read\n\nwith s. 34 IPC."
}
},
{
"from_name": null,
"id": "372b0e7d47784f4299f275db55eecd64",
"to_name": null,
"type": null,
"value": {
"end": 1137,
"labels": [
"PREAMBLE"
],
"start": 938,
"text": "The prosecution case was that he and the\ndeceased were last seen together in village J on November\n10, 1974 by PW. 7, owner of a dhaba-cum-liquor shop, and PW.\n8, and all of them had consumed liquor."
}
},
{
"from_name": null,
"id": "fb2086bc1e854dd4966495f080bbe7f2",
"to_name": null,
"type": null,
"value": {
"end": 1176,
"labels": [
"PREAMBLE"
],
"start": 1138,
"text": "The deceased had by\nthen become tipsy."
}
},
{
"from_name": null,
"id": "b1d9474c6fd84956aca4a9a3c41e23bd",
"to_name": null,
"type": null,
"value": {
"end": 1274,
"labels": [
"PREAMBLE"
],
"start": 1177,
"text": "Thereafter the appellant and the deceased\nhad boarded a truck driven by A-2 and A-3, the cleaner."
}
},
{
"from_name": null,
"id": "84546a38182343608f464bcd0fe477a8",
"to_name": null,
"type": null,
"value": {
"end": 1440,
"labels": [
"PREAMBLE"
],
"start": 1274,
"text": "\nWhile they were going in the truck there ensued a quarrel\nbetween them over some money matters and the appellant\nattacked the deceased with an iron screw driver, and"
}
},
{
"from_name": null,
"id": "449fbd4c29c648a7b4d69df1bfb5ddff",
"to_name": null,
"type": null,
"value": {
"end": 1556,
"labels": [
"PREAMBLE"
],
"start": 1441,
"text": "when\nthe latter was half dead all the accused severed his head\nwith an iron saw and burried the trunk under stones."
}
},
{
"from_name": null,
"id": "124f1f40770344159a0015390fd1aed2",
"to_name": null,
"type": null,
"value": {
"end": 1598,
"labels": [
"PREAMBLE"
],
"start": 1557,
"text": "The\nhead was hidden at a different place."
}
},
{
"from_name": null,
"id": "9f727aa444624e03a52fe7f43ee0622a",
"to_name": null,
"type": null,
"value": {
"end": 1768,
"labels": [
"PREAMBLE"
],
"start": 1599,
"text": "Three days later, PW-\n6, chowkidar of a neighboring village noticed the dead body\nand reported the matter to PW-10, the village pradhan, who\naccompanied him to the spot."
}
},
{
"from_name": null,
"id": "8bf6d8248507498fa47dd6418119a9b7",
"to_name": null,
"type": null,
"value": {
"end": 1806,
"labels": [
"PREAMBLE"
],
"start": 1769,
"text": "PW-6 lodged the FIR the next\nmorning."
}
},
{
"from_name": null,
"id": "49718d3a676b443bb8dd7272cae221bd",
"to_name": null,
"type": null,
"value": {
"end": 2123,
"labels": [
"PREAMBLE"
],
"start": 1807,
"text": "On receiving information that the deceased and the\nappellant were seen consuming liquor on November 10 the\nSub-Inspector, PW-27, and PW-10 went to appellant's village\nand took him for identification to village J, where PWs 7\nand 8 identified him as one seen in the company of the\ndeceased and having consumed liquor."
}
},
{
"from_name": null,
"id": "6b72515ca6094d7b884827f682bf60bf",
"to_name": null,
"type": null,
"value": {
"end": 2224,
"labels": [
"PREAMBLE"
],
"start": 2124,
"text": "The appellant was\nthereafter taken to PW-10's village and PW-27 proceeded for\nfurther investigation."
}
},
{
"from_name": null,
"id": "d7aa91a49d834083a0020f5d940d21ac",
"to_name": null,
"type": null,
"value": {
"end": 2347,
"labels": [
"PREAMBLE"
],
"start": 2225,
"text": "The appellant then made an extra-\njudicial confession to PW-10 of having committed the crime\nwith the help of A-2 and A-3."
}
},
{
"from_name": null,
"id": "7d2c57a0cc854860b9eeb9c3e6ff6a8f",
"to_name": null,
"type": null,
"value": {
"end": 2447,
"labels": [
"PREAMBLE"
],
"start": 2348,
"text": "PW-10 passed on that informa-\ntion to PW-27 the next day following which the accused were\narrested."
}
},
{
"from_name": null,
"id": "cd75ab7c53c04a94bd36d61337186946",
"to_name": null,
"type": null,
"value": {
"end": 2558,
"labels": [
"PREAMBLE"
],
"start": 2448,
"text": "Thereafter A-2 made a statement under s. 27 of\nthe Evidence Act leading to the' discovery of the severed\nhead."
}
},
{
"from_name": null,
"id": "215c86cee3b54fb7b1710586044e2167",
"to_name": null,
"type": null,
"value": {
"end": 2600,
"labels": [
"PREAMBLE"
],
"start": 2559,
"text": "The weapon of offence was also recovered."
}
},
{
"from_name": null,
"id": "47162cac15ff4789a5eac9b159478dd5",
"to_name": null,
"type": null,
"value": {
"end": 2730,
"labels": [
"PREAMBLE"
],
"start": 2601,
"text": "The High\nCourt confirmed the conviction and sentence of the appellant\nbut acquitted the other two of the charge under s. 302 IPC."
}
},
{
"from_name": null,
"id": "ca34350407044fa0bff81b1888d0f0cb",
"to_name": null,
"type": null,
"value": {
"end": 2796,
"labels": [
"PREAMBLE"
],
"start": 2730,
"text": "\nAllowing the appeal by special leave, the Court,\n\n HELD: 1."
}
},
{
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"id": "a6f6775fa5c24013aa7adad6d7635fef",
"to_name": null,
"type": null,
"value": {
"end": 2944,
"labels": [
"PREAMBLE"
],
"start": 2797,
"text": "The prosecution has failed to bring home the\nguilt to the appellant beyond all reasonable doubt and to\nprove that he alone had committed the crime."
}
},
{
"from_name": null,
"id": "5095c6a0be52474bb0b85976c6c574ea",
"to_name": null,
"type": null,
"value": {
"end": 2998,
"labels": [
"PREAMBLE"
],
"start": 2945,
"text": "He is, there-\nfore, entitled to the benefit of doubt."
}
},
{
"from_name": null,
"id": "c36efeab85c644819a4edb65168c26e8",
"to_name": null,
"type": null,
"value": {
"end": 3017,
"labels": [
"PREAMBLE"
],
"start": 2999,
"text": "[116D]\n\n 2.1"
}
},
{
"from_name": null,
"id": "c04e55f8c0a24881b65b5eb39ee9e6f8",
"to_name": null,
"type": null,
"value": {
"end": 3255,
"labels": [
"PREAMBLE"
],
"start": 3018,
"text": "When there is no direct witness to the commission of\nmurder and the case rests entirely on circumstantial evi-\ndence, all the circumstances from which the conclusion of\nthe guilt is to be drawn should be fully and cogently estab-\nlished."
}
},
{
"from_name": null,
"id": "592067b901214819beb8ae226c84e883",
"to_name": null,
"type": null,
"value": {
"end": 3389,
"labels": [
"PREAMBLE"
],
"start": 3256,
"text": "The proved circumstances should be of a conclusive\nnature and definite tendency unerringly pointing towards the\nguilt of the accused."
}
},
{
"from_name": null,
"id": "6e76077c0865413789a3e88bf2222a52",
"to_name": null,
"type": null,
"value": {
"end": 3435,
"labels": [
"PREAMBLE"
],
"start": 3390,
"text": "Imaginary possibilities have no role\nto play."
}
},
{
"from_name": null,
"id": "0c49a81eb51d4392ac8c9726ec2d79d5",
"to_name": null,
"type": null,
"value": {
"end": 3496,
"labels": [
"PREAMBLE"
],
"start": 3436,
"text": "What is to be considered are ordinary human proba-\nbilities."
}
},
{
"from_name": null,
"id": "4218fff272ce4506a7e763b87083ced9",
"to_name": null,
"type": null,
"value": {
"end": 3665,
"labels": [
"PREAMBLE"
],
"start": 3497,
"text": "It is not necessary that each circumstance by\nitself be conclusive but cumulatively must form unbroken\nchain of events leading to the proof of the guilt of the\naccused."
}
},
{
"from_name": null,
"id": "12ff6e27762943168fefe04f960f32a4",
"to_name": null,
"type": null,
"value": {
"end": 3867,
"labels": [
"PREAMBLE"
],
"start": 3666,
"text": "If any of the said circumstances are consistent\nwith the innocence of the accused or the chain of the conti-\nnuity of the circumstances is broken, the accused is enti-\ntled to the benefit of the doubt."
}
},
{
"from_name": null,
"id": "d4e461b5141247289fbbdc7d34a2ce33",
"to_name": null,
"type": null,
"value": {
"end": 3875,
"labels": [
"PREAMBLE"
],
"start": 3868,
"text": "[112D-H"
}
},
{
"from_name": null,
"id": "9bf4876522e346e5a3c2f8d5641e9ce0",
"to_name": null,
"type": null,
"value": {
"end": 3888,
"labels": [
"PREAMBLE"
],
"start": 3875,
"text": "]\n\n 2.2"
}
},
{
"from_name": null,
"id": "2e4e0e5e5bb142be817210acaaf2f1d1",
"to_name": null,
"type": null,
"value": {
"end": 4099,
"labels": [
"PREAMBLE"
],
"start": 3889,
"text": "In assessing the evidence to find these principles\nit is necessary to distinguish between facts which may be\ncalled primary or basic facts on one hand and inference of\nfacts to be drawn from them, on the other."
}
},
{
"from_name": null,
"id": "d94e1297e2d5457dbe4546b9d3504e10",
"to_name": null,
"type": null,
"value": {
"end": 4364,
"labels": [
"PREAMBLE"
],
"start": 4100,
"text": "In regard to the\nproof of basic or primary facts, the court has to judge the\nevidence in the ordinary way and in appreciation of the\nevidence in proof of those basic facts or primary facts,\nthere is no scope for the application of the doctrine of\nbenefit of doubt."
}
},
{
"from_name": null,
"id": "e57b3d279860426fb7eb0049f5ecfa2f",
"to_name": null,
"type": null,
"value": {
"end": 4468,
"labels": [
"PREAMBLE"
],
"start": 4365,
"text": "The court has to consider the evidence and\ndecide whether the evidence proves a particular fact or not."
}
},
{
"from_name": null,
"id": "a090873366cf4ce0a0755c557bccccd4",
"to_name": null,
"type": null,
"value": {
"end": 4801,
"labels": [
"PREAMBLE"
],
"start": 4469,
"text": "Whether that fact leads to the inference of the guilt of the\naccused or not is another aspect and in dealing with this\naspect of the problem, the doctrine of benefit would apply\nand an inference of guilt can be drawn only if the proved\nfacts are inconsistent with the innocence of the accused and\nare consistent only with his guilt."
}
},
{
"from_name": null,
"id": "fde5bd9795d64e2aac8be8bc5cbbe262",
"to_name": null,
"type": null,
"value": {
"end": 4809,
"labels": [
"PREAMBLE"
],
"start": 4802,
"text": "[113A-C"
}
},
{
"from_name": null,
"id": "f8294e8b7182466db79a826cc7f89a9c",
"to_name": null,
"type": null,
"value": {
"end": 4822,
"labels": [
"PREAMBLE"
],
"start": 4809,
"text": "]\n\n 3.1"
}
},
{
"from_name": null,
"id": "1416dfc9f0a347c9b730db37a993e48b",
"to_name": null,
"type": null,
"value": {
"end": 4941,
"labels": [
"PREAMBLE"
],
"start": 4823,
"text": "In the instant case, from the evidence it is clear\nthat there was no prior intimacy of the appellant and the\ndeceased."
}
},
{
"from_name": null,
"id": "d25e215219994b83bebb96c46bf69313",
"to_name": null,
"type": null,
"value": {
"end": 4975,
"labels": [
"PREAMBLE"
],
"start": 4942,
"text": "They happened to meet per chance."
}
},
{
"from_name": null,
"id": "8cb7a84cd925491185ee441559111533",
"to_name": null,
"type": null,
"value": {
"end": 5130,
"labels": [
"PREAMBLE"
],
"start": 4976,
"text": "PW-7, the liquor\nshop owner, and PW-8, who hadliquor with the appellant and the deceased were also abso-\nlute strangers to the deceased and the appellant."
}
},
{
"from_name": null,
"id": "8c815f0cf3e646f0966222103fa7e848",
"to_name": null,
"type": null,
"value": {
"end": 5250,
"labels": [
"PREAMBLE"
],
"start": 5131,
"text": "Admittedly\nthere was no identification parade conducted by the prosecu-\ntion to identify the appellant by PW-7 or PW-8."
}
},
{
"from_name": null,
"id": "e3bfa69786d5497185ae376bedd73946",
"to_name": null,
"type": null,
"value": {
"end": 5262,
"labels": [
"PREAMBLE"
],
"start": 5251,
"text": "The appel-\n"
}
},
{
"from_name": null,
"id": "dce85797d2c9414ab808aa7ef9a90e22",
"to_name": null,
"type": null,
"value": {
"end": 5387,
"labels": [
"PREAMBLE"
],
"start": 5262,
"text": "lant was stated to have pointed out to PW-7 as the one that\nsold the liquor and PW-8 consumed it with him and the de-\nceased."
}
},
{
"from_name": null,
"id": "2845df743b0f4245bce84e1fcfce12e1",
"to_name": null,
"type": null,
"value": {
"end": 5576,
"labels": [
"PREAMBLE"
],
"start": 5388,
"text": "Therefore, it is not reasonably possible to accept\nthe testimony of the PW-7 and PW-8 when they professed that\nthey had seen the appellant and the deceased together con-\nsuming the liquor."
}
},
{
"from_name": null,
"id": "63dce01b43cd4a48910e57e3ade9adaa",
"to_name": null,
"type": null,
"value": {
"end": 5645,
"labels": [
"PREAMBLE"
],
"start": 5577,
"text": "It is highly artificial and appear on its\nface a make believe story."
}
},
{
"from_name": null,
"id": "35fe3364878941fb97f26a7e0d2720a4",
"to_name": null,
"type": null,
"value": {
"end": 5652,
"labels": [
"PREAMBLE"
],
"start": 5646,
"text": "[113F-"
}
},
{
"from_name": null,
"id": "4c9a2ea3955640da86284f0238adb77b",
"to_name": null,
"type": null,
"value": {
"end": 5668,
"labels": [
"PREAMBLE"
],
"start": 5652,
"text": "H]\n\n 3.2.1"
}
},
{
"from_name": null,
"id": "ffa70255d6264e91a8d9e40aafc4d2ac",
"to_name": null,
"type": null,
"value": {
"end": 5901,
"labels": [
"PREAMBLE"
],
"start": 5669,
"text": "An unambiguous extra-judicial confession possesses\nhigh probative value force as it emanates from the person\nwho committed the crime and is admissible in evidence pro-\nvided it is free from suspicion and suggestion of its falsi-\nty."
}
},
{
"from_name": null,
"id": "2fa59021562d458ab8681b49e7a3c608",
"to_name": null,
"type": null,
"value": {
"end": 5957,
"labels": [
"PREAMBLE"
],
"start": 5902,
"text": "But in the process of the proof of the alleged confes-\n"
}
},
{
"from_name": null,
"id": "7f10401c18084e8c9921dbfd653b7570",
"to_name": null,
"type": null,
"value": {
"end": 6231,
"labels": [
"PREAMBLE"
],
"start": 5957,
"text": "sion the court has to be satisfied that it is a voluntary\none and does not appear to be the result of inducement,\nthreat or promise envisaged under s. 24 of the Evidence Act\n\nor was brought about in suspicious circumstances to circum-\nvent ss, 25 and 26 of the Evidence Act."
}
},
{
"from_name": null,
"id": "9e0ae8796f164c4295f0338884db6ce1",
"to_name": null,
"type": null,
"value": {
"end": 6472,
"labels": [
"PREAMBLE"
],
"start": 6232,
"text": "For this purpose the\ncourt must scrutinise all the relevant facts such as the\nperson to whom the confession is made, the time and place of\nmaking it, the circumstances in which it was made and final-\nly the actual words used by the accused."
}
},
{
"from_name": null,
"id": "a1acea44eb404671a23d1929e6ce3d19",
"to_name": null,
"type": null,
"value": {
"end": 6639,
"labels": [
"PREAMBLE"
],
"start": 6473,
"text": "[114A-D]\n\n 3.2.2 Section 25 of the Evidence Act provides that no\nconfession made to a police officer shall be proved as\nagainst a person accused of any offence."
}
},
{
"from_name": null,
"id": "0cf03e915ed247fd9952752e97a9f23c",
"to_name": null,
"type": null,
"value": {
"end": 6847,
"labels": [
"PREAMBLE"
],
"start": 6640,
"text": "Section 26 provides\nthat no confession made by any person while he is under\ncustody of the police officer, unless it be made in the\nimmediate presence of a magistrate, shall be proved as\nagainst such person."
}
},
{
"from_name": null,
"id": "de878eb2f52c4325972d800f258b055f",
"to_name": null,
"type": null,
"value": {
"end": 6868,
"labels": [
"PREAMBLE"
],
"start": 6848,
"text": "[114G]\n\n 3.2.3"
}
},
{
"from_name": null,
"id": "1d194e4992ab408682dfc8ac40ca4509",
"to_name": null,
"type": null,
"value": {
"end": 6966,
"labels": [
"PREAMBLE"
],
"start": 6869,
"text": "In the instant case, the appellant did not make\nany confession in the presence of the magistrate."
}
},
{
"from_name": null,
"id": "ce14e9a1d2514996af35e65cd158a154",
"to_name": null,
"type": null,
"value": {
"end": 7034,
"labels": [
"PREAMBLE"
],
"start": 6967,
"text": "From the\nnarrative of the prosecution story it is clear that PW 10\n"
}
},
{
"from_name": null,
"id": "bd74e6251057488cb8ade028031d2fe3",
"to_name": null,
"type": null,
"value": {
"end": 7202,
"labels": [
"PREAMBLE"
],
"start": 7034,
"text": "and the appellant did not belong to the same village and\nthat PW-27 and PW-10 came together and apprehended the\nappellant from his village and took him to village J for"
}
},
{
"from_name": null,
"id": "af4933c92c424b1fa3dbef27cab61a1d",
"to_name": null,
"type": null,
"value": {
"end": 7217,
"labels": [
"PREAMBLE"
],
"start": 7202,
"text": "\nidentification"
}
},
{
"from_name": null,
"id": "05b85439d84d4594a773444572d01f9a",
"to_name": null,
"type": null,
"value": {
"end": 7392,
"labels": [
"PREAMBLE"
],
"start": 7217,
"text": ". After he was identified by PW-7 and PW-8 it\nwas stated that he was brought back to the village of PW-10\nand was kept in his company and PW-27 left for further\ninvestigation."
}
},
{
"from_name": null,
"id": "dd8e1055b4f34c8fa11a08ab9d580525",
"to_name": null,
"type": null,
"value": {
"end": 7539,
"labels": [
"PREAMBLE"
],
"start": 7393,
"text": "It is incredible to believe that the police\nofficer, PW-27 after having got an accused identified would\nhave left without taking him into custody."
}
},
{
"from_name": null,
"id": "7f62d68783d3473c80c7a7ee54b4ceb0",
"to_name": null,
"type": null,
"value": {
"end": 7765,
"labels": [
"PREAMBLE"
],
"start": 7540,
"text": "He seems to have\ncreated an artificial scenario of his leaving for further\ninvestigation and keeping the appellant in the custody of\nPW-10 to make an extra-judicial confession, with a view to\navoid the rigour of ss. 25 and26."
}
},
{
"from_name": null,
"id": "02587679de8c4ae9b36c3f65c7338c24",
"to_name": null,
"type": null,
"value": {
"end": 8001,
"labels": [
"PREAMBLE"
],
"start": 7766,
"text": "Nothing prevented him from taking the appellant to a\nJudicial Magistrate and having his confession recorded as\nprovided under s. 164 of the Crl. P.C. which possesses great\nprobative value and affords an unerring assurance to the\ncourt."
}
},
{
"from_name": null,
"id": "a0e9b6bc5488400bbabaaf422043b21d",
"to_name": null,
"type": null,
"value": {
"end": 8295,
"labels": [
"PREAMBLE"
],
"start": 8002,
"text": "It is too incredulous to believe that for mere asking\nto tell the truth the appellant made voluntary confession to\nPW-10 and that too sitting in a hotel. The other person in\nwhose presence it was stated to have been made was not\nexamined to provide any corroboration to the testimony of\nPW-10."
}
},
{
"from_name": null,
"id": "a0193c5e02214cc49af03d08e1e3d283",
"to_name": null,
"type": null,
"value": {
"end": 8493,
"labels": [
"PREAMBLE"
],
"start": 8296,
"text": "It would be legitimate, therefore, to conclude that\nthe appellant was taken into police custody and the extra-\njudicial confession was obtained there through PW-10 who\naccommodated the prosecution."
}
},
{
"from_name": null,
"id": "cd6fd64fa424401aa9dd8b64eb6b4def",
"to_name": null,
"type": null,
"value": {
"end": 8516,
"labels": [
"PREAMBLE"
],
"start": 8494,
"text": "[115A-E]\n\n 3.2.4"
}
},
{
"from_name": null,
"id": "61d16b2497ad4284977d56b2500e9ccc",
"to_name": null,
"type": null,
"value": {
"end": 8607,
"labels": [
"PREAMBLE"
],
"start": 8517,
"text": "It is well settled law that ss. 25 and 26 of the\nEvidence Act shall be construed strictly."
}
},
{
"from_name": null,
"id": "caa269898844459cbbbc5dc7049c3d5f",
"to_name": null,
"type": null,
"value": {
"end": 8769,
"labels": [
"PREAMBLE"
],
"start": 8608,
"text": "Therefore, by\noperation of s. 26 the confession made by the appellant to\nPW-10 while he was in the custody of the police officer\nshall not be proved against him."
}
},
{
"from_name": null,
"id": "f9dc2806fb684525b433df2363b1d293",
"to_name": null,
"type": null,
"value": {
"end": 8788,
"labels": [
"PREAMBLE"
],
"start": 8770,
"text": "[115E]\n\n 3.3"
}
},
{
"from_name": null,
"id": "b9afd10336e84c42885c23c0b3e0ab75",
"to_name": null,
"type": null,
"value": {
"end": 9020,
"labels": [
"PREAMBLE"
],
"start": 8789,
"text": "The statement said to have been made by the appel-\nlant under s 27 of the Evidence Act leading to discovery of\nthe consequential information, namely. saw blade, is not of\na conclusive nature connecting the appellant with the crime."
}
},
{
"from_name": null,
"id": "b2b2e2db43ec47b2bc0b7ae60bf9fb31",
"to_name": null,
"type": null,
"value": {
"end": 9087,
"labels": [
"PREAMBLE"
],
"start": 9020,
"text": "\nThe recoveries were made long after the arrest of the appel-\nlant."
}
},
{
"from_name": null,
"id": "588cc16fe9394f9a89016831ee52e3d7",
"to_name": null,
"type": null,
"value": {
"end": 9145,
"labels": [
"PREAMBLE"
],
"start": 9088,
"text": "The blood stains on all the articles had disintegrat-\ned."
}
},
{
"from_name": null,
"id": "ba34e02750634787b915f69e9aa57e8c",
"to_name": null,
"type": null,
"value": {
"end": 9211,
"labels": [
"PREAMBLE"
],
"start": 9146,
"text": "So it was not possible to find whether it was human\nblood or not."
}
},
{
"from_name": null,
"id": "0ccd5eb0246f42b6aa5529ff9b08bd75",
"to_name": null,
"type": null,
"value": {
"end": 9381,
"labels": [
"PREAMBLE"
],
"start": 9212,
"text": "Moreover, from the prosecution evidence it is\nclear that the deceased himself was an accused in an earlier\nmurder case and it is obvious that he had enemies at his\nback."
}
},
{
"from_name": null,
"id": "a36ae7d8d7d44b50aa735c02a9f105ce",
"to_name": null,
"type": null,
"value": {
"end": 9457,
"labels": [
"PREAMBLE"
],
"start": 9382,
"text": "Absolutely no motive to commit the crime was attribut-\ned to the appellant."
}
},
{
"from_name": null,
"id": "03d60f53ae33476ea700621a93567a0c",
"to_name": null,
"type": null,
"value": {
"end": 9477,
"labels": [
"PREAMBLE"
],
"start": 9458,
"text": "[115G-H]\n\n 4."
}
},
{
"from_name": null,
"id": "962123a0d31c4dccbf134f2210842c6d",
"to_name": null,
"type": null,
"value": {
"end": 9580,
"labels": [
"PREAMBLE"
],
"start": 9478,
"text": "The conviction and sentence of the appellant for the\noffences under ss. 302 and 201 IPC are set aside."
}
},
{
"from_name": null,
"id": "7d05e1dc5cb440b99ee0b8f29ab92a36",
"to_name": null,
"type": null,
"value": {
"end": 9617,
"labels": [
"PREAMBLE"
],
"start": 9581,
"text": "The bail\nbond shall stand cancelled."
}
},
{
"from_name": null,
"id": "d6c0763b730243ca8cb5dabb783b94c2",
"to_name": null,
"type": null,
"value": {
"end": 9685,
"labels": [
"PREAMBLE"
],
"start": 9618,
"text": "He shall remain at liberty\nunless he is required in any other case."
}
},
{
"from_name": null,
"id": "77ba0c2eb545441bb444798036b831c1",
"to_name": null,
"type": null,
"value": {
"end": 9932,
"labels": [
"PREAMBLE"
],
"start": 9686,
"text": "[116D]\n\n 5. Indulging in free fabrication of evidence against an\n\n\ninnocent and implicating him in the capital offence punisha-\nble under s. 302 IPC, as in the instant case, is a deplora-\nble conduct on the part of an investigating officer."
}
},
{
"from_name": null,
"id": "815df66a983f4da79905609723dc836b",
"to_name": null,
"type": null,
"value": {
"end": 10075,
"labels": [
"PREAMBLE"
],
"start": 9933,
"text": "The\nliberty of a citizen is a precious one guaranteed by consti-\ntutional provisions and its deprivation shall be only in\naccordance with law."
}
},
{
"from_name": null,
"id": "2ba7a5619540441d9616c1f38593f483",
"to_name": null,
"type": null,
"value": {
"end": 10295,
"labels": [
"PREAMBLE"
],
"start": 10076,
"text": "Before accusing the appellant of the\ncommission of such a grave crime an honest, sincere and\ndispassionate investigation should have been made to feel\nsure that he alone was responsible to commit the offence.\n[117B; A]\n"
}
},
{
"from_name": null,
"id": "9c50cbd5a9b14a4bb17baf0e357e097b",
"to_name": null,
"type": null,
"value": {
"end": 10304,
"labels": [
"PREAMBLE"
],
"start": 10295,
"text": "JUDGMENT:"
}
},
{
"from_name": null,
"id": "fb29e0f0632642ee9ddf833685e07f16",
"to_name": null,
"type": null,
"value": {
"end": 10377,
"labels": [
"NONE"
],
"start": 10304,
"text": "\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 386 of 1978."
}
},
{
"from_name": null,
"id": "8abffede106143fe852a182da2416c44",
"to_name": null,
"type": null,
"value": {
"end": 10499,
"labels": [
"NONE"
],
"start": 10385,
"text": "From the Judgment and Order dated 19/20th July, 1977 of the Himachal Pradesh High Court in Crl. A. No. 46 of 1976."
}
},
{
"from_name": null,
"id": "310e6469ce7d412b90b00e1b12755494",
"to_name": null,
"type": null,
"value": {
"end": 10587,
"labels": [
"NONE"
],
"start": 10499,
"text": "\n Rakesh Luthra, N.N. Bhatt, L.R. Singh (N.P.) and lrshad Ahmad for the Appellant."
}
},
{
"from_name": null,
"id": "70df124a1c924cb2a47422c1b1e15ce4",
"to_name": null,
"type": null,
"value": {
"end": 10668,
"labels": [
"NONE"
],
"start": 10587,
"text": "\n K.G. Bhagat, N.K. Sharma and Ms. A. Subhashini (N.P.) for the Respondent."
}
},
{
"from_name": null,
"id": "bbb9f392b7ce4eefbc80d854c45f6ff8",
"to_name": null,
"type": null,
"value": {
"end": 10728,
"labels": [
"NONE"
],
"start": 10668,
"text": "\nThe Judgment of the Court was delivered by K. RAMASWAMY, J."
}
},
{
"from_name": null,
"id": "5ad9629c9a9c43968f53fe8f25b48497",
"to_name": null,
"type": null,
"value": {
"end": 10949,
"labels": [
"FAC"
],
"start": 10729,
"text": "The appellant, K.C. Sharma, alongwith two others was charged for the offence punishable under ss.\n302 and 201 read with s. 34 of the Indian Penal Code for causing the death and concealing the dead body of Joginder Singh."
}
},
{
"from_name": null,
"id": "2166673a92a7456f8e85ab695fe1b429",
"to_name": null,
"type": null,
"value": {
"end": 11332,
"labels": [
"RLC"
],
"start": 10950,
"text": "The Additional Sessions Judge, Kangra Division at Dharamsala convicted all the accused under s. 302/34 and directed them to undergo imprisonment for life and to pay a fine of Rs.500 and also to the sentence of two years rigor- ous imprisonment and fine of Rs.500 for the offence of s.\n201/34, in default of payment of fine for a further period of three months rigorous imprisonment."
}
},
{
"from_name": null,
"id": "e71b67d2f74f48e9b87958403b027132",
"to_name": null,
"type": null,
"value": {
"end": 11385,
"labels": [
"RLC"
],
"start": 11333,
"text": "All the sentences were directed to run concurrently."
}
},
{
"from_name": null,
"id": "3b1f764140e043ce961680776da4f38f",
"to_name": null,
"type": null,
"value": {
"end": 11637,
"labels": [
"RLC"
],
"start": 11386,
"text": "On appeal the Division Bench of the High Court of Himachal Pradesh by judgment dated July 20, 1977 acquitted accused 2 and 3 of the offence under s. 302 IPC and confirmed the conviction and sentence of the appellant and set aside the sentence of fine."
}
},
{
"from_name": null,
"id": "755deb6be4be495e8f18b51e42a63049",
"to_name": null,
"type": null,
"value": {
"end": 11710,
"labels": [
"FAC"
],
"start": 11638,
"text": "The leave having been granted by this Court, this appeal has been filed."
}
},
{
"from_name": null,
"id": "9fb1d0eb7a5f440c9bf227a3647b160d",
"to_name": null,
"type": null,
"value": {
"end": 11809,
"labels": [
"FAC"
],
"start": 11710,
"text": "\n The narrative of prosecution case runs thus: The de- ceased Joginder Singh, resident of Jogipura."
}
},
{
"from_name": null,
"id": "dcf90a9b249f4241bdc0d87eb3864680",
"to_name": null,
"type": null,
"value": {
"end": 11844,
"labels": [
"FAC"
],
"start": 11810,
"text": "Tah. Kangra on November, 10, 1974."
}
},
{
"from_name": null,
"id": "60d8977949854fc9b9694ea627be841d",
"to_name": null,
"type": null,
"value": {
"end": 11984,
"labels": [
"FAC"
],
"start": 11845,
"text": "while going to Pathankot with some currency notes in his possession went on his way to Jassur Village to meet his friend one Bala Pahalwan."
}
},
{
"from_name": null,
"id": "453867acf4594cdda2d638391b3aade9",
"to_name": null,
"type": null,
"value": {
"end": 12044,
"labels": [
"FAC"
],
"start": 11985,
"text": "On enquiry the latter was said to be absent in the village."
}
},
{
"from_name": null,
"id": "a04e8d22f2414574993bd15e23a1134c",
"to_name": null,
"type": null,
"value": {
"end": 12231,
"labels": [
"FAC"
],
"start": 12045,
"text": "The deceased came in contact with the appellant and both went to the Dhaba of PW. 7, Joginder Singh Paul to have some drink, but PW. 7 did not allow them to take liquor inside the Dhaba."
}
},
{
"from_name": null,
"id": "1bc70ba55eba4c6382b96fa53cd3f38f",
"to_name": null,
"type": null,
"value": {
"end": 12293,
"labels": [
"FAC"
],
"start": 12231,
"text": "\nBoth of them sat in the back side of the Dhaba to have drink."
}
},
{
"from_name": null,
"id": "563399a3ac2746afb89e0a2f73503683",
"to_name": null,
"type": null,
"value": {
"end": 12372,
"labels": [
"FAC"
],
"start": 12294,
"text": "PW. 8 Tamil Singh and one Jai Onkar were also invited to have drink with them."
}
},
{
"from_name": null,
"id": "9002174b2afb47808a6fa86a0fe5db78",
"to_name": null,
"type": null,
"value": {
"end": 12427,
"labels": [
"FAC"
],
"start": 12373,
"text": "All of them together consumed the liquor and ate meat."
}
},
{
"from_name": null,
"id": "cdb626de0e6d44fc881bda082a5e4bd1",
"to_name": null,
"type": null,
"value": {
"end": 12712,
"labels": [
"FAC"
],
"start": 12428,
"text": "The deceased paid the price of the liquor and meat and when he had become tipsy, PW. 8 suggest- ed to take the deceased to Pathankot or to keep him at DhabaBeli where at he could make necessary arrangements for their stay but the appellant insisted upon taking the deceased to Kangra."
}
},
{
"from_name": null,
"id": "dd8f7508be9249618ec4d7ff307867dc",
"to_name": null,
"type": null,
"value": {
"end": 12850,
"labels": [
"FAC"
],
"start": 12713,
"text": "Thereafter the appellant and the deceased boarded the Truck No. HPK 4179 driven by A. 2, Madho Ram, Driver and A. 3, Bihari Lal, Cleaner."
}
},
{
"from_name": null,
"id": "9c5fd6285b7d40b88d9ee4683aae6735",
"to_name": null,
"type": null,
"value": {
"end": 12886,
"labels": [
"FAC"
],
"start": 12851,
"text": "PW. 8 and the other left the place."
}
},
{
"from_name": null,
"id": "f929d493bacf4ad6982a953f89f84c92",
"to_name": null,
"type": null,
"value": {
"end": 13033,
"labels": [
"FAC"
],
"start": 12887,
"text": "The truck was loaded with the bricks and the appel- lant and the deceased sat on the bricks in the body of the truck and went towards Kangra side."
}
},
{
"from_name": null,
"id": "21c60f01f3ec48dfab31823cd88065a9",
"to_name": null,
"type": null,
"value": {
"end": 13128,
"labels": [
"FAC"
],
"start": 13034,
"text": "PW. 12, the Octroi Clerk at Nagpur states that the truck driven by A. 2 went towards Baijnath."
}
},
{
"from_name": null,
"id": "9d3d990aeada4d27a90aabdd28651e93",
"to_name": null,
"type": null,
"value": {
"end": 13136,
"labels": [
"FAC"
],
"start": 13129,
"text": "PW. 13."
}
},
{
"from_name": null,
"id": "4b645ae413dd4af38969d9e5c5430974",
"to_name": null,
"type": null,
"value": {
"end": 13182,
"labels": [
"FAC"
],
"start": 13137,
"text": "Burfiram, Chowkidar at Ichhi Marketing Co-op."
}
},
{
"from_name": null,
"id": "e12ca85321bc4545a8c0d0d81b9c9c16",
"to_name": null,
"type": null,
"value": {
"end": 13360,
"labels": [
"FAC"
],
"start": 13183,
"text": "Society spoke that he saw the truck driven by A. 2 and A. 3 and got unloaded the bricks at the godown of the said Society at about mid-night but the deceased was not seen there."
}
},
{
"from_name": null,
"id": "9b3a96f849e04f8d80086568e2294563",
"to_name": null,
"type": null,
"value": {
"end": 13615,
"labels": [
"FAC"
],
"start": 13361,
"text": "It is further the case of the prosecution that while the deceased or accused were going in the truck, there ensued a quarrel between them over some money matter and the appellant took iron-screw driver and gave blows on the head and face of the deceased."
}
},
{
"from_name": null,
"id": "ed49d58f96f7403eab8a31327da99b5b",
"to_name": null,
"type": null,
"value": {
"end": 13656,
"labels": [
"FAC"
],
"start": 13616,
"text": "Consequently the deceased was half dead."
}
},
{
"from_name": null,
"id": "13f36d885d764a33a82b475f799c40aa",
"to_name": null,
"type": null,
"value": {
"end": 13906,
"labels": [
"FAC"
],
"start": 13657,
"text": "He was thrown out of the truck but finding him not dead put him in the truck and all the accused severed the head with an iron saw and burried the trunk under stones in the outskirts of the village Dhadhu and carried the head with them in the truck."
}
},
{
"from_name": null,
"id": "866b177093f540278a3c40434bee9706",
"to_name": null,
"type": null,
"value": {
"end": 14034,
"labels": [
"FAC"
],
"start": 13907,
"text": "The head was hidden at a place between Guggal and Chaitru on the Kachcha road branching off the main road to the village Ichhi."
}
},
{
"from_name": null,
"id": "487aed43a081443694b207998e905303",
"to_name": null,
"type": null,
"value": {
"end": 14256,
"labels": [
"FAC"
],
"start": 14035,
"text": "On November 13, 1974, PW. 6 Karrudi Ram, the Chowkidar of Mauza Bandi, during twilight, had gone to answer nature's call at the outskirts of the village Dhadhu and noticed the blood stains and a torn pant near the stones."
}
},
{
"from_name": null,
"id": "e764f910e2334e228238a5ed19faf0d8",
"to_name": null,
"type": null,
"value": {
"end": 14364,
"labels": [
"FAC"
],
"start": 14257,
"text": "On further probe the hand of the deceased was seen projecting from the stones and he noticed the dead body."
}
},
{
"from_name": null,
"id": "35d5a99f74af4ebbb432f2a0493b6328",
"to_name": null,
"type": null,
"value": {
"end": 14450,
"labels": [
"FAC"
],
"start": 14365,
"text": "He went and reported to Bidhu Ram, PW. 10.\nthe Pradhan of the village and two others."
}
},
{
"from_name": null,
"id": "44d0006e46b541ffb5cba40dc6516b8e",
"to_name": null,
"type": null,
"value": {
"end": 14503,
"labels": [
"FAC"
],
"start": 14451,
"text": "All of them went to the spot, noticed the dead body."
}
},
{
"from_name": null,
"id": "844d72f4b6da479d8691d3183026e744",
"to_name": null,
"type": null,
"value": {
"end": 14541,
"labels": [
"FAC"
],
"start": 14504,
"text": "PW. 10 kept a watch during the night."
}
},
{
"from_name": null,
"id": "893eb5b966ec4803b6c51c59f4c8e4d8",
"to_name": null,
"type": null,
"value": {
"end": 14650,
"labels": [
"FAC"
],
"start": 14542,
"text": "On November 14, 1974 at about 7.00 or 8.00 a.m. PW. 6 went to the Police Station and lodged the com- plaint."
}
},
{
"from_name": null,
"id": "da8c98ab295c4d32b227438240a4c7ff",
"to_name": null,
"type": null,
"value": {
"end": 14745,
"labels": [
"FAC"
],
"start": 14651,
"text": "PW. 26, the A,S.I. recorded and issued the First Information Report and proceeded to the spot."
}
},
{
"from_name": null,
"id": "dc9be8bc962a4f4e8a1c89b462505a61",
"to_name": null,
"type": null,
"value": {
"end": 14886,
"labels": [
"FAC"
],
"start": 14746,
"text": "He recovered the articles on and near the dead body under PW. 11, Panch- nama and conducted inquest and sent the dead body for post- mortem."
}
},
{
"from_name": null,
"id": "3b0d199d1f6943baa2f7f1bbeb6f42c0",
"to_name": null,
"type": null,
"value": {
"end": 14916,
"labels": [
"FAC"
],
"start": 14887,
"text": "The Doctor conducted autopsy."
}
},
{
"from_name": null,
"id": "72ae84b7cdbd4e699101e7a0fd514e69",
"to_name": null,
"type": null,
"value": {
"end": 15036,
"labels": [
"FAC"
],
"start": 14917,
"text": "On November 15. 1974 the parents of the deceased came to the Police Station and identified the clothes of the deceased."
}
},
{
"from_name": null,
"id": "0b81f603f1ef4442b93db6128f77c7dc",
"to_name": null,
"type": null,
"value": {
"end": 15127,
"labels": [
"FAC"
],
"start": 15037,
"text": "On November 16, 1974, PW. 27, the Sub Inspector of the Police took over the investigation."
}
},
{
"from_name": null,
"id": "ca8021ad601841d2b190bad9b6012090",
"to_name": null,
"type": null,
"value": {
"end": 15320,
"labels": [
"FAC"
],
"start": 15128,
"text": "He contacted one Kuldip Singh, a Conductor in Kapila Transport Company from whom he came to know that on November 10, 1974, the deceased and the appellant were seen consuming liquor at Jassur."
}
},
{
"from_name": null,
"id": "1cf0f41e482547649bff47c3cc1314a3",
"to_name": null,
"type": null,
"value": {
"end": 15463,
"labels": [
"FAC"
],
"start": 15321,
"text": "Thereafter PW. 27 and PW. 10, Bidhu Ram, Pradhan of Guggal Panchayat went to the appel- lant's village Sahaura and was sent for the appellant."
}
},
{
"from_name": null,
"id": "a8462eca91f54807bf6286ad3bec42a4",
"to_name": null,
"type": null,
"value": {
"end": 15540,
"labels": [
"FAC"
],
"start": 15464,
"text": "The appel-lant on coming to him was found to have shaved off his moustaches."
}
},
{
"from_name": null,
"id": "5c8a8a1f9ab5456893f18b156e01799e",
"to_name": null,
"type": null,
"value": {
"end": 15725,
"labels": [
"FAC"
],
"start": 15541,
"text": "PW. 27 had enquired as to why he had removed his moustoches upon which the appellant was claimed to have replied that he had removed his moustaches due to demise of his maternal uncle."
}
},
{
"from_name": null,
"id": "9b68461de09246439e3c66f704ffde63",
"to_name": null,
"type": null,
"value": {
"end": 15801,
"labels": [
"FAC"
],
"start": 15726,
"text": "PW. 10 and PW. 27 took the appellant to Jassur for identification purposes."
}
},
{
"from_name": null,
"id": "c553f04425ac44f684eaaab9bb0dbaa9",
"to_name": null,
"type": null,
"value": {
"end": 15968,
"labels": [
"FAC"
],
"start": 15802,
"text": "The appellant pointed out PW. 7, the owner of the Dhaba and the latter identified the appellant as one seen in the company of the deceased and having consumed liquor."
}
},
{
"from_name": null,
"id": "46a29220ea60404881b96f749e07161c",
"to_name": null,
"type": null,
"value": {
"end": 15986,
"labels": [
"FAC"
],
"start": 15969,
"text": "Equally of PW. 8."
}
},
{
"from_name": null,
"id": "8f172c461f3e4c7d9cfda0ec9a335e8e",
"to_name": null,
"type": null,
"value": {
"end": 16101,
"labels": [
"FAC"
],
"start": 15987,
"text": "Thereafter the appellant was taken back to PW. 10's village and PW. 27 left the village for further investigation."
}
},
{
"from_name": null,
"id": "4d3572a6ce854f0e90d6f1d2776ddd8e",
"to_name": null,
"type": null,
"value": {
"end": 16328,
"labels": [
"FAC"
],
"start": 16102,
"text": "On enquiry made by PW. 10, in the shop of one Mangath Ram and in the company of one Raghunath, to reveal the truth to him, the appellant was stated to have requested PW. 10 whether he could save him if he would tell the truth."
}
},
{
"from_name": null,
"id": "e2ec65fcb93944c6824265670cae437a",
"to_name": null,
"type": null,
"value": {
"end": 16434,
"labels": [
"FAC"
],
"start": 16329,
"text": "Thereupon PW. 10 stated that he could not save him but if he would speak the truth he would help himself."
}
},
{
"from_name": null,
"id": "9bc7af6ca1ed4e6da00995db769f5577",
"to_name": null,
"type": null,
"value": {
"end": 17029,
"labels": [
"FAC"
],
"start": 16435,
"text": "Thereupon the appellant was stated to have made extra judicial confession giving out the details of consuming liquor with the deceased; their going together on the truck, the quarrel that ensued between them; his hitting the deceased with the screw-driver, throwing the..dead body, thinking that he died, on the road realising that he was not dead, lifting him and putting him in the body of the truck and all the accused cutting the head of the deceased with the saw blade and burrying the trunk under the stones and hiding the head at different place and thereby they had committed the crime."
}
},
{
"from_name": null,
"id": "51dac6c32e574975a6097504794bc496",
"to_name": null,
"type": null,
"value": {
"end": 17112,
"labels": [
"FAC"
],
"start": 17030,
"text": "PW. 10 gave this information to PW. 27 on the next day, namely, November 25, 1974."
}
},
{
"from_name": null,
"id": "9dbe4722ba7b4e17bb98735775df2db7",
"to_name": null,
"type": null,
"value": {
"end": 17151,
"labels": [
"FAC"
],
"start": 17113,
"text": "Thereon all the accused were arrested."
}
},
{
"from_name": null,
"id": "3007f1e6b84f42f2860e82a38c61560d",
"to_name": null,
"type": null,
"value": {
"end": 17258,
"labels": [
"FAC"
],
"start": 17152,
"text": "On November 27, 1974, the Driver A. 2 was stated to have made a statement under s. 27 of the Evidence Act."
}
},
{
"from_name": null,
"id": "81bf4e6903c443b7971dc4d5f0a86cf8",
"to_name": null,
"type": null,
"value": {
"end": 17349,
"labels": [
"FAC"
],
"start": 17259,
"text": "Ex. PW. 9/A leading to discovery of the hidden head at a place between Guggal and Chaitru."
}
},
{
"from_name": null,
"id": "47b91c6845af4086a79c111dfecf15ef",
"to_name": null,
"type": null,
"value": {
"end": 17474,
"labels": [
"FAC"
],
"start": 17350,
"text": "This statement had been made in the presence of PW. 9 and another and the severed head was recovered under Memo Ex. PW. 9/B."
}
},
{
"from_name": null,
"id": "464cd0d23d5d4a56b35c7726fd2f4320",
"to_name": null,
"type": null,
"value": {
"end": 17522,
"labels": [
"FAC"
],
"start": 17475,
"text": "This was in the presence of PW. 10 and another."
}
},
{
"from_name": null,
"id": "ca5be7aa8d804e778f081cb75484c730",
"to_name": null,
"type": null,
"value": {
"end": 17583,
"labels": [
"FAC"
],
"start": 17523,
"text": "The head was sent to the Doctor for post-mortem examination."
}
},
{
"from_name": null,
"id": "4652d70de89c497782ffc6dee570d650",
"to_name": null,
"type": null,
"value": {
"end": 17724,
"labels": [
"FAC"
],
"start": 17584,
"text": "The Doctor verified and found it to be correct and the doctor corelated the trunk of the dead body and the head belonging to the de- ceased."
}
},
{
"from_name": null,
"id": "20bdc5dfeeb94a1181e9e8a1e030b984",
"to_name": null,
"type": null,
"value": {
"end": 18088,
"labels": [
"FAC"
],
"start": 17725,
"text": "On November 30., 1974, pursuant to statement made by the appellant and A. 3 under Ex. PW. 16/B leading to recover one iron-saw without handle and a piece of cloth-wrapped to one of its sides was recovered from a bush near Kathman Mor and PW. 10 and another are Panch witnesses and found the saw blade contained with blood stains and a piece of cloth of torn pant."
}
},
{
"from_name": null,
"id": "b90781c8692d4be7aeae4b4f8fa3c17b",
"to_name": null,
"type": null,
"value": {
"end": 18128,
"labels": [
"FAC"
],
"start": 18089,
"text": "They were recovered under Ex. PW. 16/C."
}
},
{
"from_name": null,
"id": "71264f35633f40d196269efe9a1e4f0b",
"to_name": null,
"type": null,
"value": {
"end": 18315,
"labels": [
"FAC"
],
"start": 18129,
"text": "The clothes of the appellant were also claimed to have been recovered from his house under Ex. PW. 16/H which was stained with blood and the same were recovered in the presence of PW. 16"
}
},
{
"from_name": null,
"id": "f5aac96350734647964ec5c61cba3dab",
"to_name": null,
"type": null,
"value": {
"end": 18384,
"labels": [
"FAC"
],
"start": 18316,
"text": "The Serologist found the blood stains disintegrated on all theitems."
}
},
{
"from_name": null,
"id": "4dc3e4636f2246d99c6ca3e9ce2a6277",
"to_name": null,
"type": null,
"value": {
"end": 18476,
"labels": [
"FAC"
],
"start": 18385,
"text": "On the basis of this evidence the prosecution laid the chargesheet against all the accused."
}
},
{
"from_name": null,
"id": "ca881b0df98c419bad3cea3a1c960a15",
"to_name": null,
"type": null,
"value": {
"end": 18590,
"labels": [
"FAC"
],
"start": 18477,
"text": "As stated earlier the appellant now stands convicted and sentenced for the offences under ss. 302 and 201, I.P.C."
}
},
{
"from_name": null,
"id": "9a35757a33a24e12bf90a5c4cabf40b3",
"to_name": null,
"type": null,
"value": {
"end": 18667,
"labels": [
"FAC"
],
"start": 18591,
"text": "The two others did not file appeal against their convict under s. 201 I.P.C."
}
},
{
"from_name": null,
"id": "1ffa81ad4e434945a4c2f90bd07842e0",
"to_name": null,
"type": null,
"value": {
"end": 18731,
"labels": [
"ANALYSIS"
],
"start": 18669,
"text": "The entire prosecution case rested on circumstantial evidence."
}
},
{
"from_name": null,
"id": "b34e6ebc25ec42d89b6d6524024d8fc9",
"to_name": null,
"type": null,
"value": {
"end": 19218,
"labels": [
"ANALYSIS"
],
"start": 18732,
"text": "As regards the appellant, the circumstances relied on the prosecution are three, namely,(i) the appellant and the deceased were last seen together by PW. 7, the owner of the liquor shop Dhaba and PW. 8, the companion who had liquor with the deceased and the appellant; (ii) the extra judicial confession made to PW. 10, the Pradhan of Guggal Gram Panchayat; and (iii) the discovery of saw blade pursu- ant to the statement made by the appellant and A. 3 under s.\n27 of the Evidence Act."
}
},
{
"from_name": null,
"id": "8b51d66c8bb14eeba804b0df9912918d",
"to_name": null,
"type": null,
"value": {
"end": 19330,
"labels": [
"ISSUE"
],
"start": 19218,
"text": "\n The question, therefore, is whether the prosecution proved guilt of the appellant beyond all reasonable doubt."
}
},
{
"from_name": null,
"id": "9a7096e39a2f4972ad7e9fdd9d5fafc0",
"to_name": null,
"type": null,
"value": {
"end": 19368,
"labels": [
"ANALYSIS"
],
"start": 19331,
"text": "In a case of circumstantial evidence."
}
},
{
"from_name": null,
"id": "2a015d64ede54bbfb7cec6e4212155a8",
"to_name": null,
"type": null,
"value": {
"end": 19486,
"labels": [
"ANALYSIS"
],
"start": 19369,
"text": "all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established."
}
},
{
"from_name": null,
"id": "c16fdb2d6abc4c318e3e06b1114cf367",
"to_name": null,
"type": null,
"value": {
"end": 19592,
"labels": [
"ANALYSIS"
],
"start": 19487,
"text": "All the facts so estab- lished should be consistent only with the hypothesis of the guilt of the accused."
}
},
{
"from_name": null,
"id": "7d7b8b6a415f46eb8ea424ed9b8bb0e3",
"to_name": null,
"type": null,
"value": {
"end": 19729,
"labels": [
"ANALYSIS"
],
"start": 19593,
"text": "The proved circumstances should be of a conclusive nature and definite tendency, unerringly point- ing towards the guilt of the accused."
}
},
{
"from_name": null,
"id": "4e567017ab9a44de885efea5eb10e0f0",
"to_name": null,
"type": null,
"value": {
"end": 19815,
"labels": [
"ANALYSIS"
],
"start": 19730,
"text": "They should be such as to exclude every hypothesis but the one proposed to be proved."
}
},
{
"from_name": null,
"id": "a72d6c91fc554684bceceddb33028891",
"to_name": null,
"type": null,
"value": {
"end": 19970,
"labels": [
"ANALYSIS"
],
"start": 19816,
"text": "The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt."
}
},
{
"from_name": null,
"id": "49c272279c364db980bd361fc4f67e4a",
"to_name": null,
"type": null,
"value": {
"end": 20142,
"labels": [
"ANALYSIS"
],
"start": 19971,
"text": "It is not necessary that each circumstances by itself be conclusive but cumula- tively must form unbroken chain of events leading to the proof of the guilt of the accused."
}
},
{
"from_name": null,
"id": "b3d9b98e4efb425998e8a6e1972e3ff1",
"to_name": null,
"type": null,
"value": {
"end": 20293,
"labels": [
"ANALYSIS"
],
"start": 20143,
"text": "If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis."
}
},
{
"from_name": null,
"id": "87ef2f0d37224ef5b715c1b2e82130b3",
"to_name": null,
"type": null,
"value": {
"end": 20366,
"labels": [
"ANALYSIS"
],
"start": 20293,
"text": "\n In assessing the evidence imaginary possibilities have no role to play."
}
},
{
"from_name": null,
"id": "f78affecaa9c45758b7eafbdfe3223ed",
"to_name": null,
"type": null,
"value": {
"end": 20425,
"labels": [
"ANALYSIS"
],
"start": 20367,
"text": "What is to be considered are ordinary human probabilities."
}
},
{
"from_name": null,
"id": "cf5776ceee164411b51812c0d85b8bd5",
"to_name": null,
"type": null,
"value": {
"end": 20613,
"labels": [
"ANALYSIS"
],
"start": 20426,
"text": "In other words when there is no direct wit- ness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established."
}
},
{
"from_name": null,
"id": "6bfb7ff45c944d6ead4736a7878f18b9",
"to_name": null,
"type": null,
"value": {
"end": 20791,
"labels": [
"ANALYSIS"
],
"start": 20614,
"text": "The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the inno- cence of the accused."
}
},
{
"from_name": null,
"id": "dc04ca2e05464edb92015bb9deddf917",
"to_name": null,
"type": null,
"value": {
"end": 21001,
"labels": [
"ANALYSIS"
],
"start": 20792,
"text": "If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of the doubt."
}
},
{
"from_name": null,
"id": "f4f9fa3095f441639532f990aceb973a",
"to_name": null,
"type": null,
"value": {
"end": 21060,
"labels": [
"ANALYSIS"
],
"start": 21001,
"text": "\n In assessing the evidence to find these principles."
}
},
{
"from_name": null,
"id": "08a634d50e22493ab1715d49e6f9c430",
"to_name": null,
"type": null,
"value": {
"end": 21206,
"labels": [
"ANALYSIS"
],
"start": 21061,
"text": "it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them."
}
},
{
"from_name": null,
"id": "480fa0b327944df398547c146b04d78c",
"to_name": null,
"type": null,
"value": {
"end": 21220,
"labels": [
"ANALYSIS"
],
"start": 21207,
"text": "on the other."
}
},
{
"from_name": null,
"id": "eb53f7d571a04763ad9a057cdfbffc4a",
"to_name": null,
"type": null,
"value": {
"end": 21270,
"labels": [
"ANALYSIS"
],
"start": 21221,
"text": "In regard to the proof of basic or primary facts."
}
},
{
"from_name": null,
"id": "0d4787c7013e4203869b9eb4fa2df7fd",
"to_name": null,
"type": null,
"value": {
"end": 21485,
"labels": [
"ANALYSIS"
],
"start": 21271,
"text": "the court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt."
}
},
{
"from_name": null,
"id": "116854744a084bc989b7e87a9664ea9e",
"to_name": null,
"type": null,
"value": {
"end": 21589,
"labels": [
"ANALYSIS"
],
"start": 21486,
"text": "The court has to consider the evidence and decide whether the evidence proves a particular fact or not."
}
},
{
"from_name": null,
"id": "353b876483094897a068895a484c2324",
"to_name": null,
"type": null,
"value": {
"end": 21921,
"labels": [
"ANALYSIS"
],
"start": 21589,
"text": "\nWhether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt."
}
},
{
"from_name": null,
"id": "9f52da7680a7498a886b7311eae14ed8",
"to_name": null,
"type": null,
"value": {
"end": 21984,
"labels": [
"ANALYSIS"
],
"start": 21922,
"text": "There is a long distance between may be true and must be true."
}
},
{
"from_name": null,
"id": "8602d900cacc4b228be27925f83228e7",
"to_name": null,
"type": null,
"value": {
"end": 22318,
"labels": [
"ANALYSIS"
],
"start": 21985,
"text": "The prosecution has to travel all the way to establish fully the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclu- sive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution."
}
},
{
"from_name": null,
"id": "13aa92f0ab944f37b1748ba5fea46574",
"to_name": null,
"type": null,
"value": {
"end": 22334,
"labels": [
"ANALYSIS"
],
"start": 22319,
"text": "In other words."
}
},
{
"from_name": null,
"id": "37826e7623994f529c590078c0479372",
"to_name": null,
"type": null,
"value": {
"end": 22624,
"labels": [
"ANALYSIS"
],
"start": 22335,
"text": "there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all probability the act must have been done by the accused and the accused alone."
}
},
{
"from_name": null,
"id": "c9f1c8497704439880b6daa9f487cdb8",
"to_name": null,
"type": null,
"value": {
"end": 22815,
"labels": [
"ANALYSIS"
],
"start": 22624,
"text": "\n The question emerges, therefore is whether the prosecu- tion has established the three circumstantial evidence heavily banked upon by the prosecution in proof of the guilt of the appellant."
}
},
{
"from_name": null,
"id": "5a94523dc4854bdbb1c05d99a1b4f562",
"to_name": null,
"type": null,
"value": {
"end": 22923,
"labels": [
"ANALYSIS"
],
"start": 22816,
"text": "The first circumstance is that the de- ceased and the appellant were last seen together by PW. 7 and PW. 8."
}
},
{
"from_name": null,
"id": "09d33c0bf5e94bebaea32b5e42706684",
"to_name": null,
"type": null,
"value": {
"end": 23020,
"labels": [
"ANALYSIS"
],
"start": 22924,
"text": "From the evidence it is clear that there is no prior intimacy of the appellant and the deceased."
}
},
{
"from_name": null,
"id": "4c44917d871a45c3acc1b3b07205a2d0",
"to_name": null,
"type": null,
"value": {
"end": 23054,
"labels": [
"ANALYSIS"
],
"start": 23021,
"text": "They happened to meet per chance."
}
},
{
"from_name": null,
"id": "c6babbf1602748f8aa902cb523beeb21",
"to_name": null,
"type": null,
"value": {
"end": 23250,
"labels": [
"ANALYSIS"
],
"start": 23055,
"text": "Equally from the evidence it is clear that PW. 7, the liquor shop owner and PW. 8 who had liquor with the appellant and the deceased are also absolute strangers to the deceased and the appellant."
}
},
{
"from_name": null,
"id": "96175ef5daf741adb4ef495a0668296e",
"to_name": null,
"type": null,
"value": {
"end": 23371,
"labels": [
"ANALYSIS"
],
"start": 23251,
"text": "Admittedly there is no identification parade conducted by the prosecu- tion tO identify the appellant by PW. 7 or PW. 8."
}
},
{
"from_name": null,
"id": "7f9d70ec7d3f44458fa28562123bc77d",
"to_name": null,
"type": null,
"value": {
"end": 23509,
"labels": [
"ANALYSIS"
],
"start": 23372,
"text": "The appel- lant was stated to have pointed out to PW. 7 as the one that sold the liquor and PW-8 consumed it with him and the de- ceased."
}
},
{
"from_name": null,
"id": "5d4eff5dae8946f19962768c061053b8",
"to_name": null,
"type": null,
"value": {
"end": 23694,
"labels": [
"ANALYSIS"
],
"start": 23510,
"text": "Therefore it is not reasonably possible to accept the testimony of PW. 7 and PW. 8 when they professed that they have seen the appellant and the deceased together consuming the liquor."
}
},
{
"from_name": null,
"id": "b33b731731884b32bdbd907fe3045587",
"to_name": null,
"type": null,
"value": {
"end": 23764,
"labels": [
"ANALYSIS"
],
"start": 23695,
"text": "It is highly artificial and appears on its face a make believe story."
}
},
{
"from_name": null,
"id": "e641bb83eb704a6c832f3b5c3bb4a346",
"to_name": null,
"type": null,
"value": {
"end": 23872,
"labels": [
"ANALYSIS"
],
"start": 23764,
"text": "\n The next piece of evidence is the alleged extra judicial confession made by the appellant to PW. 10."
}
},
{
"from_name": null,
"id": "8097e9c2e2034a0fae8170dc34b95068",
"to_name": null,
"type": null,
"value": {
"end": 24101,
"labels": [
"ANALYSIS"
],
"start": 23873,
"text": "An unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity."
}
},
{
"from_name": null,
"id": "734d0b96868b4ead82b75a981501c9a0",
"to_name": null,
"type": null,
"value": {
"end": 24435,
"labels": [
"ANALYSIS"
],
"start": 24102,
"text": "But in the process of the proof of the alleged confession the court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged under section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Section 25 and 26 of the Evidence Act."
}
},
{
"from_name": null,
"id": "8d779c186f704e01928b46a0c233e8a5",
"to_name": null,
"type": null,
"value": {
"end": 24682,
"labels": [
"ANALYSIS"
],
"start": 24436,
"text": "Therefore, the court has to look into the surrounding circumstances and to find whether the extra judicial confession is not inspired by any improper or colateral consideration or circumvention of the law suggest- ing that it may not be true one."
}
},
{
"from_name": null,
"id": "408a03a8ebaa4350b1550a50fcfb2d7c",
"to_name": null,
"type": null,
"value": {
"end": 24921,
"labels": [
"ANALYSIS"
],
"start": 24683,
"text": "For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused."
}
},
{
"from_name": null,
"id": "940e0a2951b549c9baad3b676ec96772",
"to_name": null,
"type": null,
"value": {
"end": 25041,
"labels": [
"ANALYSIS"
],
"start": 24922,
"text": "Extra judicial confession if found to be voluntary, can be relied upon by the court alongwith other evidence on record."
}
},
{
"from_name": null,
"id": "ff4ab4056c5f4e0199425df24e06a93a",
"to_name": null,
"type": null,
"value": {
"end": 25136,
"labels": [
"ANALYSIS"
],
"start": 25042,
"text": "Therefore, even the extra judicial confession will also have to be proved like any other fact."
}
},
{
"from_name": null,
"id": "9bdc1d3c8da240eca4a8b98d78d0b9b6",
"to_name": null,
"type": null,
"value": {
"end": 25337,
"labels": [
"ANALYSIS"
],
"start": 25137,
"text": "The value of the evidence as to the confes- sion depends upon the verocity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused."
}
},
{
"from_name": null,
"id": "6187ce751470480fa41119809fd09060",
"to_name": null,
"type": null,
"value": {
"end": 25450,
"labels": [
"ANALYSIS"
],
"start": 25338,
"text": "Some times it may not be possible to the witness to reproduce the actual words in which the confession was made."
}
},
{
"from_name": null,
"id": "24168b3e6b074d33b81521cbbc280a1e",
"to_name": null,
"type": null,
"value": {
"end": 25639,
"labels": [
"ANALYSIS"
],
"start": 25451,
"text": "For that reason the law insists on recording the statement by a Judicial Magistrate after administering all necessary warnings to the accused that it would be used as evidence against him."
}
},
{
"from_name": null,
"id": "f264c24b6ba347219ce3fc8cea665b64",
"to_name": null,
"type": null,
"value": {
"end": 25711,
"labels": [
"ANALYSIS"
],
"start": 25639,
"text": "\n Admittedly PW. 10 and the appellant do not belong to the same village."
}
},
{
"from_name": null,
"id": "daab22a02a6d4e739ef004a2f9bcbfab",
"to_name": null,
"type": null,
"value": {
"end": 25898,
"labels": [
"ANALYSIS"
],
"start": 25712,
"text": "From the narrative of the prosecution story it is clear that PW. 27, and PW. 10 came together and appre- hended the appellant from his village and was taken to Jassur for identification."
}
},
{
"from_name": null,
"id": "92b5369fb3ff4002835f17ced9f2c66f",
"to_name": null,
"type": null,
"value": {
"end": 26079,
"labels": [
"ANALYSIS"
],
"start": 25899,
"text": "After he was identified by PW. 7 and PW. 8 it was stated that he was brought back to Gaggal village of PW. 10 and was kept in his company and PW. 27 left for further investigation."
}
},
{
"from_name": null,
"id": "a630a49c66c4488a8b1e41d2b34f6617",
"to_name": null,
"type": null,
"value": {
"end": 26223,
"labels": [
"STA"
],
"start": 26080,
"text": "Section 25 of the Evidence Act provides that no confession made to a police officer shall be proved as against a person accused of any offence."
}
},
{
"from_name": null,
"id": "21a8262211dd4979af2ba0204188e32e",
"to_name": null,
"type": null,
"value": {
"end": 26431,
"labels": [
"STA"
],
"start": 26223,
"text": "\nSection 26 provides that no confession made by any person while he is under custody of the police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against such person."
}
},
{
"from_name": null,
"id": "07f0fee96c9e41289cec3a8c4fac37e0",
"to_name": null,
"type": null,
"value": {
"end": 26590,
"labels": [
"ANALYSIS"
],
"start": 26432,
"text": "Therefore, the confession made by an accused person to a police officer is irrelevant by operation of Section 25 and it shall be proved against the appellant."
}
},
{
"from_name": null,
"id": "19f2e9eff1264016bf38665247ed7444",
"to_name": null,
"type": null,
"value": {
"end": 26819,
"labels": [
"ANALYSIS"
],
"start": 26591,
"text": "Likewise the confession made by the appellant while he is in the custody of the police shall notbe proved against the appellant unless it is made in the immediate presence of the magistrate, by operation of Sec- tion 26 thereof."
}
},
{
"from_name": null,
"id": "773413f3a8c54e6799ed2c0c999f61d0",
"to_name": null,
"type": null,
"value": {
"end": 26907,
"labels": [
"ANALYSIS"
],
"start": 26820,
"text": "Admittedly the appellant did not make any confession in the presence of the magistrate."
}
},
{
"from_name": null,
"id": "d19994d111a140299073855beeb6b309",
"to_name": null,
"type": null,
"value": {
"end": 27028,
"labels": [
"ANALYSIS"
],
"start": 26908,
"text": "The question, therefore, is whether the appellant made the extra judicial confession while he was in the police custody."
}
},
{
"from_name": null,
"id": "d24864fa140646e38ace2a2a55260762",
"to_name": null,
"type": null,
"value": {
"end": 27264,
"labels": [
"ANALYSIS"
],
"start": 27029,
"text": "It is incred- ible to believe that the police officer, PW. 27, after having got identified the appellant by PW. 7 and PW. 8 as the one last seen the deceased in his company would have left the appellant without taking him into custody."
}
},
{
"from_name": null,
"id": "40e3fdb068ee40f6a078649b36378572",
"to_name": null,
"type": null,
"value": {
"end": 27516,
"labels": [
"ANALYSIS"
],
"start": 27265,
"text": "It is obvious, that with a view to avoid the rigour of Section 25 and 26, PW. 27 created an artificial scenerio of his leaving for further investigation and kept the appellant in the custody of PW. 10, the Pradhan to make an extra judicial confession."
}
},
{
"from_name": null,
"id": "8fbb3501ab9b477e9ea219b836898c51",
"to_name": null,
"type": null,
"value": {
"end": 27753,
"labels": [
"ANALYSIS"
],
"start": 27517,
"text": "Nothing prevented PW. 27 to take the appellant to a Judicial Magistrate and had his confession recorded as provided under section 164 of the Crl. P.C. which possesses great probative value and affords an unerring assurance to the court."
}
},
{
"from_name": null,
"id": "8360ea8b3172416fb7fc3194dc1c1733",
"to_name": null,
"type": null,
"value": {
"end": 27910,
"labels": [
"ANALYSIS"
],
"start": 27754,
"text": "It is too incredulous to believe that for mere asking to tell the truth the appellant made voluntarily confession to PW. 10 and that too sitting in a hotel."
}
},
{
"from_name": null,
"id": "9a070b7cacdb4022afb2dddfe78356c9",
"to_name": null,
"type": null,
"value": {
"end": 28051,
"labels": [
"ANALYSIS"
],
"start": 27911,
"text": "The other person in whose presence it was stated to have been made was not examined to provide any corroboration to the testimony of PW. 10."
}
},
{
"from_name": null,
"id": "b93ac64fa871426d935e0aaa3eb0a121",
"to_name": null,
"type": null,
"value": {
"end": 28288,
"labels": [
"ANALYSIS"
],
"start": 28052,
"text": "Therefore, it would be legitimate to conclude that the appellant was taken into the police custo- dy and while the accused was in the custody, the extra judicial confession was obtained through PW. 10 who accommo- dated the prosecution."
}
},
{
"from_name": null,
"id": "b88000c143364b2bafd6e0c42035942a",
"to_name": null,
"type": null,
"value": {
"end": 28456,
"labels": [
"ANALYSIS"
],
"start": 28289,
"text": "Thereby we can safely reach an irre- sistible conclusion that the alleged extra judicial confes- sion statement was made while the appellant was in the police custody."
}
},
{
"from_name": null,
"id": "b995258812344aefa205a3655f7a30b0",
"to_name": null,
"type": null,
"value": {
"end": 28532,
"labels": [
"ANALYSIS"
],
"start": 28457,
"text": "It is well settled law that Sections 25 and 26 shall be construed strictly."
}
},
{
"from_name": null,
"id": "9d833cf389314f7eba1c1cecca3fc528",
"to_name": null,
"type": null,
"value": {
"end": 28740,
"labels": [
"ANALYSIS"
],
"start": 28533,
"text": "Therefore, by operation of Section 26 of the Evidence Act, the confession made by the appellant to PW. 10 while he was in the custody of the police officer (PW. 27) shall not be proved against the appellant."
}
},
{
"from_name": null,
"id": "0ed4a1d0e6304c4fa26580f14bf02a15",
"to_name": null,
"type": null,
"value": {
"end": 28828,
"labels": [
"ANALYSIS"
],
"start": 28741,
"text": "In this view it is unnecessary to go into the voluntary nature of the confession etc.\n "
}
},
{
"from_name": null,
"id": "7657d0c498354fd4aa5940c47d3f40e0",
"to_name": null,
"type": null,
"value": {
"end": 29099,
"labels": [
"ANALYSIS"
],
"start": 28828,
"text": "The third circumstance relied on is the statement said to have been made by the appellant under section 27 of the Evidence Act leading to discovery of the consequential information, namely, saw blade, is not of a conclusive nature connecting the appellant with the crime."
}
},
{
"from_name": null,
"id": "77d7d0c223434ba185ed797bb20d10ad",
"to_name": null,
"type": null,
"value": {
"end": 29161,
"labels": [
"ANALYSIS"
],
"start": 29100,
"text": "The recover- ies were long after the arrest of the appellant."
}
},
{
"from_name": null,
"id": "fc22309c04254e4da733e184e8e07979",
"to_name": null,
"type": null,
"value": {
"end": 29218,
"labels": [
"ANALYSIS"
],
"start": 29162,
"text": "The blood stains on all the articles were disintegrated."
}
},
{
"from_name": null,
"id": "91efff2ece644f50b9961cdb985994d3",
"to_name": null,
"type": null,
"value": {
"end": 29283,
"labels": [
"ANALYSIS"
],
"start": 29219,
"text": "So it was not possible to find whether it is human blood or not."
}
},
{
"from_name": null,
"id": "512ad3c5e183408e96b7ace8e2b42123",
"to_name": null,
"type": null,
"value": {
"end": 29453,
"labels": [
"ANALYSIS"
],
"start": 29284,
"text": "Moreover, from the prosecution evidence it is clear that the deceased himself was an accused in an earlier murder case and it is obvious that he had enemies at his back."
}
},
{
"from_name": null,
"id": "ffe8eb9b688b4d6b941ffdda3cbb9e9c",
"to_name": null,
"type": null,
"value": {
"end": 29523,
"labels": [
"ANALYSIS"
],
"start": 29454,
"text": "Absolutely no motive to commit crime was attributed to the appellant."
}
},
{
"from_name": null,
"id": "0d49587ea8a543349e9654a07bcd5b4d",
"to_name": null,
"type": null,
"value": {
"end": 29839,
"labels": [
"ANALYSIS"
],
"start": 29523,
"text": "\n No doubt the appellant and two others have been charged for an offence under section 302 and 201 read with Section 34, namely, common intention to commit the offences and A. 2 and A. 3 were acquitted of the charge under section 302/34, I.P.C. and that there is no independent charge under section 302, I.P.C."
}
},
{
"from_name": null,
"id": "fc1817bc7bc34f8c96dccb3a57364290",
"to_name": null,
"type": null,
"value": {
"end": 30128,
"labels": [
"ANALYSIS"
],
"start": 29840,
"text": "If, from the evidence, it is established that any one of the accused have committed the crime individual- ly, though the other accused were acquitted, even without any independent charge under section 302, the individual accused would be convicted under section 302, I.P.C. sim- plicitor."
}
},
{
"from_name": null,
"id": "0b3480e20e6c4032a0ae15fa877ccf34",
"to_name": null,
"type": null,
"value": {
"end": 30271,
"labels": [
"ANALYSIS"
],
"start": 30129,
"text": "The omission to frame an independent charge under section 302, I.P.C. does not vitiate the conviction and sentence under section 302, I.P.C.\n "
}
},
{
"from_name": null,
"id": "a634f52f52724c6a8988259dc8c2a525",
"to_name": null,
"type": null,
"value": {
"end": 30748,
"labels": [
"RATIO"
],
"start": 30271,
"text": "Thus considered we find that the prosecution has utterly failed to prove any one of the three circumstances against the appellant and the chain of circumstances was broken at every stage without connecting the accused to the commission of the alleged crime as the prosecution failed to prove as a primary fact all the three circumstances, much less beyond all reasonable doubt bringing home the guilt to the accused, and to prove that the accused alone had committed the crime."
}
},
{
"from_name": null,
"id": "cc059475cb2a401d8ef30264c9bf508f",
"to_name": null,
"type": null,
"value": {
"end": 30810,
"labels": [
"RPC"
],
"start": 30748,
"text": "\nTherefore, the appellant is entitled to the benefit of doubt."
}
},
{
"from_name": null,
"id": "10ce72fbe9e349f68f6549682d996a31",
"to_name": null,
"type": null,
"value": {
"end": 30930,
"labels": [
"RPC"
],
"start": 30811,
"text": "The conviction and sentence of the appellant for the offences under section 302 or Section 201 of I.P.C. are set aside."
}
},
{
"from_name": null,
"id": "e8f936ce092646ad9bd8169d12856830",
"to_name": null,
"type": null,
"value": {
"end": 31010,
"labels": [
"RPC"
],
"start": 30931,
"text": "The appellant is on bail granted by this Court after nine years' incarceration."
}
},
{
"from_name": null,
"id": "f00d238f3bee4f168be1bb5477e9dc61",
"to_name": null,
"type": null,
"value": {
"end": 31049,
"labels": [
"RPC"
],
"start": 31011,
"text": "The bail bond shall stand can- celled."
}
},
{
"from_name": null,
"id": "2d73f4a7410141189d33ddcefc218630",
"to_name": null,
"type": null,
"value": {
"end": 31117,
"labels": [
"RPC"
],
"start": 31050,
"text": "He shall remain at liberty unless he is required in any other case."
}
},
{
"from_name": null,
"id": "1b448aa427a2425cbdb21389b276e44c",
"to_name": null,
"type": null,
"value": {
"end": 31527,
"labels": [
"ANALYSIS"
],
"start": 31117,
"text": "\n 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 appel- lant, a peon, the driver and the cleaner for ride and tram- pled upon their fundamental personal liberty and lugged them in the capital offence punishable under section 302. I.P.C.\n by freely fabricating evidence against the innocent."
}
},
{
"from_name": null,
"id": "3aca37920e244e9a9d3709c3767bdcdd",
"to_name": null,
"type": null,
"value": {
"end": 31542,
"labels": [
"ANALYSIS"
],
"start": 31528,
"text": "Un- doubtedly."
}
},
{
"from_name": null,
"id": "dddf94108f6b455f99cb677ee477ea4b",
"to_name": null,
"type": null,
"value": {
"end": 31658,
"labels": [
"ANALYSIS"
],
"start": 31543,
"text": "heinous crimes are committed under great secrecy and that investigation of a crime is a difficult and tedious task."
}
},
{
"from_name": null,
"id": "d3391732453c44eb961b79bba4413b73",
"to_name": null,
"type": null,
"value": {
"end": 31886,
"labels": [
"ANALYSIS"
],
"start": 31659,
"text": "At the same time the liberty of a citizen is a pre- cious one guaranteed by Art. 3 of Universal Declaration of Human Rights and also Art. 21 of the Constitution of India and its deprivation shall be only in accordance with law."
}
},
{
"from_name": null,
"id": "fbc9484e3e65407a999278caa39ef70b",
"to_name": null,
"type": null,
"value": {
"end": 31999,
"labels": [
"ANALYSIS"
],
"start": 31886,
"text": "\n The accused has the fundamental right to defend himself under Art. 10 of Universal Declaration of Human Rights."
}
},
{
"from_name": null,
"id": "2e877e3342744455b592c6b50acfa5b3",
"to_name": null,
"type": null,
"value": {
"end": 32085,
"labels": [
"ANALYSIS"
],
"start": 32000,
"text": "The right to defence includes right to effective and meaningful defence at the trial."
}
},
{
"from_name": null,
"id": "54cb487032c3407ca71f14bdee780d40",
"to_name": null,
"type": null,
"value": {
"end": 32146,
"labels": [
"ANALYSIS"
],
"start": 32086,
"text": "The poor accused cannot defend effec- tively and adequately."
}
},
{
"from_name": null,
"id": "c97a1b92bebc41a2aac995c7e1aae754",
"to_name": null,
"type": null,
"value": {
"end": 32334,
"labels": [
"ANALYSIS"
],
"start": 32147,
"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 Arts.\n 19 and 21 of the Constitution."
}
},
{
"from_name": null,
"id": "3e8d70adb0e04a5297b0dda0acd916f7",
"to_name": null,
"type": null,
"value": {
"end": 32460,
"labels": [
"ANALYSIS"
],
"start": 32335,
"text": "Weaker the person accused of an offence, greater the caution and higher the responsi- bility of the law enforcement agencies."
}
},
{
"from_name": null,
"id": "a8d3fe65b3d24b0dbbcace5623fb1d80",
"to_name": null,
"type": null,
"value": {
"end": 32750,
"labels": [
"ANALYSIS"
],
"start": 32461,
"text": "Before accusing an innocent person of the commission of a grave crime like the one punishable under section 302, I.P.C., an honest, sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was re- sponsible to commit the offence."
}
},
{
"from_name": null,
"id": "1da4e67ddcf74ab485d374d397ab7895",
"to_name": null,
"type": null,
"value": {
"end": 32939,
"labels": [
"ANALYSIS"
],
"start": 32751,
"text": "Indulging in free fabrica- tion of the record is a deplorable conduct on the part of an investigating officer which under-mines the public confi- dence reposed in the investigating agency."
}
},
{
"from_name": null,
"id": "79629d11eaac457bb0d4021545ee0603",
"to_name": null,
"type": null,
"value": {
"end": 33039,
"labels": [
"ANALYSIS"
],
"start": 32940,
"text": "Therefore, great- er care and circumspection are needed by the investigating agency in this regard."
}
},
{
"from_name": null,
"id": "310e031701e646499e388c03172fe761",
"to_name": null,
"type": null,
"value": {
"end": 33206,
"labels": [
"ANALYSIS"
],
"start": 33040,
"text": "It is time that the investigating agencies, evolve new and scientific investigating methods, taking aid of rapid scientific development in the field of investigation."
}
},
{
"from_name": null,
"id": "61ffc2e7d63841d0964d927473948ac1",
"to_name": null,
"type": null,
"value": {
"end": 33561,
"labels": [
"ANALYSIS"
],
"start": 33207,
"text": "It is also the duty of the State, i.e. Cen- tral or State Government to organise periodical refresher courses for the investigating officers to keep them abreast of the latest scientific development in the art of investi- gation and the march of law so that the real offender would be brought to book and the innocent would not be exposed to prosecution."
}
},
{
"from_name": null,
"id": "777d6cce80224e179f2f678ee1a4421f",
"to_name": null,
"type": null,
"value": {
"end": 33914,
"labels": [
"ANALYSIS"
],
"start": 33561,
"text": "\n Though Art. 39A 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": "736c6214ce51400591d4f0081fbc011e",
"to_name": null,
"type": null,
"value": {
"end": 34067,
"labels": [
"ANALYSIS"
],
"start": 33915,
"text": "It is high time that senior counsel practicing in the court con- cerned, volunteer to defend such indigent accused as a part of their professional duty."
}
},
{
"from_name": null,
"id": "daf9b943c9004dcfb5efa180fa302eee",
"to_name": null,
"type": null,
"value": {
"end": 34233,
"labels": [
"ANALYSIS"
],
"start": 34068,
"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."
}
},
{
"from_name": null,
"id": "f7019f27ad0e4ede9d9003f98368e64c",
"to_name": null,
"type": null,
"value": {
"end": 34357,
"labels": [
"ANALYSIS"
],
"start": 34233,
"text": "\n We fervently hope and trust that concerned authorities and Senior Advocates would take appropriate steps in this regard.\n "
}
},
{
"from_name": null,
"id": "06d215eab4cc4891876fe504fbd8f3f2",
"to_name": null,
"type": null,
"value": {
"end": 34391,
"labels": [
"RPC"
],
"start": 34357,
"text": "The appeal is accordingly allowed."
}
},
{
"from_name": null,
"id": "1cf21adfd19040289e705e3e2c18664d",
"to_name": null,
"type": null,
"value": {
"end": 34399,
"labels": [
"RPC"
],
"start": 34391,
"text": "\n P.S.S."
}
},
{
"from_name": null,
"id": "ea8431433f2e489a9b97a54e9cbe8703",
"to_name": null,
"type": null,
"value": {
"end": 34444,
"labels": [
"RPC"
],
"start": 34400,
"text": " Appeal allowed."
}
}
]
}
] | 4,116 | {
"text": "PETITIONER:\nKISHORE CHAND\n\nVs.\n\nRESPONDENT:\nSTATE OF HIMACHAL PRADESH\n\nDATE OF JUDGMENT29/08/1990\n\nBENCH:\nRAMASWAMY, K.\nBENCH:\nRAMASWAMY, K.\nSAWANT, P.B.\n\nCITATION: 1990 SCR Supl. (1) 105\n 1990 AIR 2140 JT 1990 (3) 662\n 1991 SCC (1) 286\n 1990 SCALE (2)369\n\nACT:\n Indian Penal Code, 1860: ss. 302 & 201--Conviction based\n\non circumstantial evidence--Facts consistent with innocence\nof accused-Whether entitled to benefit of doubt--Tendency of\nfree fabrication of record to implicate innocents in capital\noffence deprecated.\n\n Constitution of India: Articles 14, 19, 21 & 39A/Univer-\nsal Declaration of Human Rights: Articles 3 & 10--Indigent\naccused--Right to liberty and life, equal justice and free\nlegal aid--Need to assign experienced amicus curiae to\nensure effective and meaningful defence emphasised.\n\nHEADNOTE:\n The appellant was convicted under ss. 302 and 201 read\n\nwith s. 34 IPC. The prosecution case was that he and the\ndeceased were last seen together in village J on November\n10, 1974 by PW. 7, owner of a dhaba-cum-liquor shop, and PW.\n8, and all of them had consumed liquor. The deceased had by\nthen become tipsy. Thereafter the appellant and the deceased\nhad boarded a truck driven by A-2 and A-3, the cleaner.\nWhile they were going in the truck there ensued a quarrel\nbetween them over some money matters and the appellant\nattacked the deceased with an iron screw driver, and when\nthe latter was half dead all the accused severed his head\nwith an iron saw and burried the trunk under stones. The\nhead was hidden at a different place. Three days later, PW-\n6, chowkidar of a neighboring village noticed the dead body\nand reported the matter to PW-10, the village pradhan, who\naccompanied him to the spot. PW-6 lodged the FIR the next\nmorning. On receiving information that the deceased and the\nappellant were seen consuming liquor on November 10 the\nSub-Inspector, PW-27, and PW-10 went to appellant's village\nand took him for identification to village J, where PWs 7\nand 8 identified him as one seen in the company of the\ndeceased and having consumed liquor. The appellant was\nthereafter taken to PW-10's village and PW-27 proceeded for\nfurther investigation. The appellant then made an extra-\njudicial confession to PW-10 of having committed the crime\nwith the help of A-2 and A-3. PW-10 passed on that informa-\ntion to PW-27 the next day following which the accused were\narrested. Thereafter A-2 made a statement under s. 27 of\nthe Evidence Act leading to the' discovery of the severed\nhead. The weapon of offence was also recovered. The High\nCourt confirmed the conviction and sentence of the appellant\nbut acquitted the other two of the charge under s. 302 IPC.\nAllowing the appeal by special leave, the Court,\n\n HELD: 1. The prosecution has failed to bring home the\nguilt to the appellant beyond all reasonable doubt and to\nprove that he alone had committed the crime. He is, there-\nfore, entitled to the benefit of doubt. [116D]\n\n 2.1 When there is no direct witness to the commission of\nmurder and the case rests entirely on circumstantial evi-\ndence, all the circumstances from which the conclusion of\nthe guilt is to be drawn should be fully and cogently estab-\nlished. The proved circumstances should be of a conclusive\nnature and definite tendency unerringly pointing towards the\nguilt of the accused. Imaginary possibilities have no role\nto play. What is to be considered are ordinary human proba-\nbilities. It is not necessary that each circumstance by\nitself be conclusive but cumulatively must form unbroken\nchain of events leading to the proof of the guilt of the\naccused. If any of the said circumstances are consistent\nwith the innocence of the accused or the chain of the conti-\nnuity of the circumstances is broken, the accused is enti-\ntled to the benefit of the doubt. [112D-H]\n\n 2.2 In assessing the evidence to find these principles\nit is necessary to distinguish between facts which may be\ncalled primary or basic facts on one hand and inference of\nfacts to be drawn from them, on the other. In regard to the\nproof of basic or primary facts, the court has to judge the\nevidence in the ordinary way and in appreciation of the\nevidence in proof of those basic facts or primary facts,\nthere is no scope for the application of the doctrine of\nbenefit of doubt. The court has to consider the evidence and\ndecide whether the evidence proves a particular fact or not.\nWhether that fact leads to the inference of the guilt of the\naccused or not is another aspect and in dealing with this\naspect of the problem, the doctrine of benefit would apply\nand an inference of guilt can be drawn only if the proved\nfacts are inconsistent with the innocence of the accused and\nare consistent only with his guilt. [113A-C]\n\n 3.1 In the instant case, from the evidence it is clear\nthat there was no prior intimacy of the appellant and the\ndeceased. They happened to meet per chance. PW-7, the liquor\nshop owner, and PW-8, who hadliquor with the appellant and the deceased were also abso-\nlute strangers to the deceased and the appellant. Admittedly\nthere was no identification parade conducted by the prosecu-\ntion to identify the appellant by PW-7 or PW-8. The appel-\nlant was stated to have pointed out to PW-7 as the one that\nsold the liquor and PW-8 consumed it with him and the de-\nceased. Therefore, it is not reasonably possible to accept\nthe testimony of the PW-7 and PW-8 when they professed that\nthey had seen the appellant and the deceased together con-\nsuming the liquor. It is highly artificial and appear on its\nface a make believe story. [113F-H]\n\n 3.2.1 An unambiguous extra-judicial confession possesses\nhigh probative value force as it emanates from the person\nwho committed the crime and is admissible in evidence pro-\nvided it is free from suspicion and suggestion of its falsi-\nty. But in the process of the proof of the alleged confes-\nsion the court has to be satisfied that it is a voluntary\none and does not appear to be the result of inducement,\nthreat or promise envisaged under s. 24 of the Evidence Act\n\nor was brought about in suspicious circumstances to circum-\nvent ss, 25 and 26 of the Evidence Act. For this purpose the\ncourt must scrutinise all the relevant facts such as the\nperson to whom the confession is made, the time and place of\nmaking it, the circumstances in which it was made and final-\nly the actual words used by the accused. [114A-D]\n\n 3.2.2 Section 25 of the Evidence Act provides that no\nconfession made to a police officer shall be proved as\nagainst a person accused of any offence. Section 26 provides\nthat no confession made by any person while he is under\ncustody of the police officer, unless it be made in the\nimmediate presence of a magistrate, shall be proved as\nagainst such person. [114G]\n\n 3.2.3 In the instant case, the appellant did not make\nany confession in the presence of the magistrate. From the\nnarrative of the prosecution story it is clear that PW 10\nand the appellant did not belong to the same village and\nthat PW-27 and PW-10 came together and apprehended the\nappellant from his village and took him to village J for\nidentification. After he was identified by PW-7 and PW-8 it\nwas stated that he was brought back to the village of PW-10\nand was kept in his company and PW-27 left for further\ninvestigation. It is incredible to believe that the police\nofficer, PW-27 after having got an accused identified would\nhave left without taking him into custody. He seems to have\ncreated an artificial scenario of his leaving for further\ninvestigation and keeping the appellant in the custody of\nPW-10 to make an extra-judicial confession, with a view to\navoid the rigour of ss. 25 and26. Nothing prevented him from taking the appellant to a\nJudicial Magistrate and having his confession recorded as\nprovided under s. 164 of the Crl. P.C. which possesses great\nprobative value and affords an unerring assurance to the\ncourt. It is too incredulous to believe that for mere asking\nto tell the truth the appellant made voluntary confession to\nPW-10 and that too sitting in a hotel. The other person in\nwhose presence it was stated to have been made was not\nexamined to provide any corroboration to the testimony of\nPW-10. It would be legitimate, therefore, to conclude that\nthe appellant was taken into police custody and the extra-\njudicial confession was obtained there through PW-10 who\naccommodated the prosecution. [115A-E]\n\n 3.2.4 It is well settled law that ss. 25 and 26 of the\nEvidence Act shall be construed strictly. Therefore, by\noperation of s. 26 the confession made by the appellant to\nPW-10 while he was in the custody of the police officer\nshall not be proved against him. [115E]\n\n 3.3 The statement said to have been made by the appel-\nlant under s 27 of the Evidence Act leading to discovery of\nthe consequential information, namely. saw blade, is not of\na conclusive nature connecting the appellant with the crime.\nThe recoveries were made long after the arrest of the appel-\nlant. The blood stains on all the articles had disintegrat-\ned. So it was not possible to find whether it was human\nblood or not. Moreover, from the prosecution evidence it is\nclear that the deceased himself was an accused in an earlier\nmurder case and it is obvious that he had enemies at his\nback. Absolutely no motive to commit the crime was attribut-\ned to the appellant. [115G-H]\n\n 4. The conviction and sentence of the appellant for the\noffences under ss. 302 and 201 IPC are set aside. The bail\nbond shall stand cancelled. He shall remain at liberty\nunless he is required in any other case. [116D]\n\n 5. Indulging in free fabrication of evidence against an\n\n\ninnocent and implicating him in the capital offence punisha-\nble under s. 302 IPC, as in the instant case, is a deplora-\nble conduct on the part of an investigating officer. The\nliberty of a citizen is a precious one guaranteed by consti-\ntutional provisions and its deprivation shall be only in\naccordance with law. Before accusing the appellant of the\ncommission of such a grave crime an honest, sincere and\ndispassionate investigation should have been made to feel\nsure that he alone was responsible to commit the offence.\n[117B; A]\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 386 of 1978.\n From the Judgment and Order dated 19/20th July, 1977 of the Himachal Pradesh High Court in Crl. A. No. 46 of 1976.\n Rakesh Luthra, N.N. Bhatt, L.R. Singh (N.P.) and lrshad Ahmad for the Appellant.\n K.G. Bhagat, N.K. Sharma and Ms. A. Subhashini (N.P.) for the Respondent.\nThe Judgment of the Court was delivered by K. RAMASWAMY, J. The appellant, K.C. Sharma, alongwith two others was charged for the offence punishable under ss.\n302 and 201 read with s. 34 of the Indian Penal Code for causing the death and concealing the dead body of Joginder Singh. The Additional Sessions Judge, Kangra Division at Dharamsala convicted all the accused under s. 302/34 and directed them to undergo imprisonment for life and to pay a fine of Rs.500 and also to the sentence of two years rigor- ous imprisonment and fine of Rs.500 for the offence of s.\n201/34, in default of payment of fine for a further period of three months rigorous imprisonment. All the sentences were directed to run concurrently. On appeal the Division Bench of the High Court of Himachal Pradesh by judgment dated July 20, 1977 acquitted accused 2 and 3 of the offence under s. 302 IPC and confirmed the conviction and sentence of the appellant and set aside the sentence of fine. The leave having been granted by this Court, this appeal has been filed.\n The narrative of prosecution case runs thus: The de- ceased Joginder Singh, resident of Jogipura. Tah. Kangra on November, 10, 1974. while going to Pathankot with some currency notes in his possession went on his way to Jassur Village to meet his friend one Bala Pahalwan. On enquiry the latter was said to be absent in the village. The deceased came in contact with the appellant and both went to the Dhaba of PW. 7, Joginder Singh Paul to have some drink, but PW. 7 did not allow them to take liquor inside the Dhaba.\nBoth of them sat in the back side of the Dhaba to have drink. PW. 8 Tamil Singh and one Jai Onkar were also invited to have drink with them. All of them together consumed the liquor and ate meat. The deceased paid the price of the liquor and meat and when he had become tipsy, PW. 8 suggest- ed to take the deceased to Pathankot or to keep him at DhabaBeli where at he could make necessary arrangements for their stay but the appellant insisted upon taking the deceased to Kangra. Thereafter the appellant and the deceased boarded the Truck No. HPK 4179 driven by A. 2, Madho Ram, Driver and A. 3, Bihari Lal, Cleaner. PW. 8 and the other left the place. The truck was loaded with the bricks and the appel- lant and the deceased sat on the bricks in the body of the truck and went towards Kangra side. PW. 12, the Octroi Clerk at Nagpur states that the truck driven by A. 2 went towards Baijnath. PW. 13. Burfiram, Chowkidar at Ichhi Marketing Co-op. Society spoke that he saw the truck driven by A. 2 and A. 3 and got unloaded the bricks at the godown of the said Society at about mid-night but the deceased was not seen there. It is further the case of the prosecution that while the deceased or accused were going in the truck, there ensued a quarrel between them over some money matter and the appellant took iron-screw driver and gave blows on the head and face of the deceased. Consequently the deceased was half dead. He was thrown out of the truck but finding him not dead put him in the truck and all the accused severed the head with an iron saw and burried the trunk under stones in the outskirts of the village Dhadhu and carried the head with them in the truck. The head was hidden at a place between Guggal and Chaitru on the Kachcha road branching off the main road to the village Ichhi. On November 13, 1974, PW. 6 Karrudi Ram, the Chowkidar of Mauza Bandi, during twilight, had gone to answer nature's call at the outskirts of the village Dhadhu and noticed the blood stains and a torn pant near the stones. On further probe the hand of the deceased was seen projecting from the stones and he noticed the dead body. He went and reported to Bidhu Ram, PW. 10.\nthe Pradhan of the village and two others. All of them went to the spot, noticed the dead body. PW. 10 kept a watch during the night. On November 14, 1974 at about 7.00 or 8.00 a.m. PW. 6 went to the Police Station and lodged the com- plaint. PW. 26, the A,S.I. recorded and issued the First Information Report and proceeded to the spot. He recovered the articles on and near the dead body under PW. 11, Panch- nama and conducted inquest and sent the dead body for post- mortem. The Doctor conducted autopsy. On November 15. 1974 the parents of the deceased came to the Police Station and identified the clothes of the deceased. On November 16, 1974, PW. 27, the Sub Inspector of the Police took over the investigation. He contacted one Kuldip Singh, a Conductor in Kapila Transport Company from whom he came to know that on November 10, 1974, the deceased and the appellant were seen consuming liquor at Jassur. Thereafter PW. 27 and PW. 10, Bidhu Ram, Pradhan of Guggal Panchayat went to the appel- lant's village Sahaura and was sent for the appellant. The appel-lant on coming to him was found to have shaved off his moustaches. PW. 27 had enquired as to why he had removed his moustoches upon which the appellant was claimed to have replied that he had removed his moustaches due to demise of his maternal uncle. PW. 10 and PW. 27 took the appellant to Jassur for identification purposes. The appellant pointed out PW. 7, the owner of the Dhaba and the latter identified the appellant as one seen in the company of the deceased and having consumed liquor. Equally of PW. 8. Thereafter the appellant was taken back to PW. 10's village and PW. 27 left the village for further investigation. On enquiry made by PW. 10, in the shop of one Mangath Ram and in the company of one Raghunath, to reveal the truth to him, the appellant was stated to have requested PW. 10 whether he could save him if he would tell the truth. Thereupon PW. 10 stated that he could not save him but if he would speak the truth he would help himself. Thereupon the appellant was stated to have made extra judicial confession giving out the details of consuming liquor with the deceased; their going together on the truck, the quarrel that ensued between them; his hitting the deceased with the screw-driver, throwing the..dead body, thinking that he died, on the road realising that he was not dead, lifting him and putting him in the body of the truck and all the accused cutting the head of the deceased with the saw blade and burrying the trunk under the stones and hiding the head at different place and thereby they had committed the crime. PW. 10 gave this information to PW. 27 on the next day, namely, November 25, 1974. Thereon all the accused were arrested. On November 27, 1974, the Driver A. 2 was stated to have made a statement under s. 27 of the Evidence Act. Ex. PW. 9/A leading to discovery of the hidden head at a place between Guggal and Chaitru. This statement had been made in the presence of PW. 9 and another and the severed head was recovered under Memo Ex. PW. 9/B. This was in the presence of PW. 10 and another. The head was sent to the Doctor for post-mortem examination. The Doctor verified and found it to be correct and the doctor corelated the trunk of the dead body and the head belonging to the de- ceased. On November 30., 1974, pursuant to statement made by the appellant and A. 3 under Ex. PW. 16/B leading to recover one iron-saw without handle and a piece of cloth-wrapped to one of its sides was recovered from a bush near Kathman Mor and PW. 10 and another are Panch witnesses and found the saw blade contained with blood stains and a piece of cloth of torn pant. They were recovered under Ex. PW. 16/C. The clothes of the appellant were also claimed to have been recovered from his house under Ex. PW. 16/H which was stained with blood and the same were recovered in the presence of PW. 16 The Serologist found the blood stains disintegrated on all theitems. On the basis of this evidence the prosecution laid the chargesheet against all the accused. As stated earlier the appellant now stands convicted and sentenced for the offences under ss. 302 and 201, I.P.C. The two others did not file appeal against their convict under s. 201 I.P.C.\n The entire prosecution case rested on circumstantial evidence. As regards the appellant, the circumstances relied on the prosecution are three, namely,(i) the appellant and the deceased were last seen together by PW. 7, the owner of the liquor shop Dhaba and PW. 8, the companion who had liquor with the deceased and the appellant; (ii) the extra judicial confession made to PW. 10, the Pradhan of Guggal Gram Panchayat; and (iii) the discovery of saw blade pursu- ant to the statement made by the appellant and A. 3 under s.\n27 of the Evidence Act.\n The question, therefore, is whether the prosecution proved guilt of the appellant beyond all reasonable doubt.\nIn a case of circumstantial evidence. all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so estab- lished should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly point- ing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstances by itself be conclusive but cumula- tively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis.\n In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words when there is no direct wit- ness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the inno- cence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of the doubt.\n In assessing the evidence to find these principles. it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them. on the other. In regard to the proof of basic or primary facts. the court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt. The court has to consider the evidence and decide whether the evidence proves a particular fact or not.\nWhether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclu- sive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words. there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all probability the act must have been done by the accused and the accused alone.\n The question emerges, therefore is whether the prosecu- tion has established the three circumstantial evidence heavily banked upon by the prosecution in proof of the guilt of the appellant. The first circumstance is that the de- ceased and the appellant were last seen together by PW. 7 and PW. 8. From the evidence it is clear that there is no prior intimacy of the appellant and the deceased. They happened to meet per chance. Equally from the evidence it is clear that PW. 7, the liquor shop owner and PW. 8 who had liquor with the appellant and the deceased are also absolute strangers to the deceased and the appellant. Admittedly there is no identification parade conducted by the prosecu- tion tO identify the appellant by PW. 7 or PW. 8. The appel- lant was stated to have pointed out to PW. 7 as the one that sold the liquor and PW-8 consumed it with him and the de- ceased. Therefore it is not reasonably possible to accept the testimony of PW. 7 and PW. 8 when they professed that they have seen the appellant and the deceased together consuming the liquor. It is highly artificial and appears on its face a make believe story.\n The next piece of evidence is the alleged extra judicial confession made by the appellant to PW. 10. An unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession the court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged under section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Section 25 and 26 of the Evidence Act. Therefore, the court has to look into the surrounding circumstances and to find whether the extra judicial confession is not inspired by any improper or colateral consideration or circumvention of the law suggest- ing that it may not be true one. For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Extra judicial confession if found to be voluntary, can be relied upon by the court alongwith other evidence on record. Therefore, even the extra judicial confession will also have to be proved like any other fact. The value of the evidence as to the confes- sion depends upon the verocity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused. Some times it may not be possible to the witness to reproduce the actual words in which the confession was made. For that reason the law insists on recording the statement by a Judicial Magistrate after administering all necessary warnings to the accused that it would be used as evidence against him.\n Admittedly PW. 10 and the appellant do not belong to the same village. From the narrative of the prosecution story it is clear that PW. 27, and PW. 10 came together and appre- hended the appellant from his village and was taken to Jassur for identification. After he was identified by PW. 7 and PW. 8 it was stated that he was brought back to Gaggal village of PW. 10 and was kept in his company and PW. 27 left for further investigation. Section 25 of the Evidence Act provides that no confession made to a police officer shall be proved as against a person accused of any offence.\nSection 26 provides that no confession made by any person while he is under custody of the police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against such person. Therefore, the confession made by an accused person to a police officer is irrelevant by operation of Section 25 and it shall be proved against the appellant. Likewise the confession made by the appellant while he is in the custody of the police shall notbe proved against the appellant unless it is made in the immediate presence of the magistrate, by operation of Sec- tion 26 thereof. Admittedly the appellant did not make any confession in the presence of the magistrate. The question, therefore, is whether the appellant made the extra judicial confession while he was in the police custody. It is incred- ible to believe that the police officer, PW. 27, after having got identified the appellant by PW. 7 and PW. 8 as the one last seen the deceased in his company would have left the appellant without taking him into custody. It is obvious, that with a view to avoid the rigour of Section 25 and 26, PW. 27 created an artificial scenerio of his leaving for further investigation and kept the appellant in the custody of PW. 10, the Pradhan to make an extra judicial confession. Nothing prevented PW. 27 to take the appellant to a Judicial Magistrate and had his confession recorded as provided under section 164 of the Crl. P.C. which possesses great probative value and affords an unerring assurance to the court. It is too incredulous to believe that for mere asking to tell the truth the appellant made voluntarily confession to PW. 10 and that too sitting in a hotel. The other person in whose presence it was stated to have been made was not examined to provide any corroboration to the testimony of PW. 10. Therefore, it would be legitimate to conclude that the appellant was taken into the police custo- dy and while the accused was in the custody, the extra judicial confession was obtained through PW. 10 who accommo- dated the prosecution. Thereby we can safely reach an irre- sistible conclusion that the alleged extra judicial confes- sion statement was made while the appellant was in the police custody. It is well settled law that Sections 25 and 26 shall be construed strictly. Therefore, by operation of Section 26 of the Evidence Act, the confession made by the appellant to PW. 10 while he was in the custody of the police officer (PW. 27) shall not be proved against the appellant. In this view it is unnecessary to go into the voluntary nature of the confession etc.\n The third circumstance relied on is the statement said to have been made by the appellant under section 27 of the Evidence Act leading to discovery of the consequential information, namely, saw blade, is not of a conclusive nature connecting the appellant with the crime. The recover- ies were long after the arrest of the appellant. The blood stains on all the articles were disintegrated. So it was not possible to find whether it is human blood or not. Moreover, from the prosecution evidence it is clear that the deceased himself was an accused in an earlier murder case and it is obvious that he had enemies at his back. Absolutely no motive to commit crime was attributed to the appellant.\n No doubt the appellant and two others have been charged for an offence under section 302 and 201 read with Section 34, namely, common intention to commit the offences and A. 2 and A. 3 were acquitted of the charge under section 302/34, I.P.C. and that there is no independent charge under section 302, I.P.C. If, from the evidence, it is established that any one of the accused have committed the crime individual- ly, though the other accused were acquitted, even without any independent charge under section 302, the individual accused would be convicted under section 302, I.P.C. sim- plicitor. The omission to frame an independent charge under section 302, I.P.C. does not vitiate the conviction and sentence under section 302, I.P.C.\n Thus considered we find that the prosecution has utterly failed to prove any one of the three circumstances against the appellant and the chain of circumstances was broken at every stage without connecting the accused to the commission of the alleged crime as the prosecution failed to prove as a primary fact all the three circumstances, much less beyond all reasonable doubt bringing home the guilt to the accused, and to prove that the accused alone had committed the crime.\nTherefore, the appellant is entitled to the benefit of doubt. The conviction and sentence of the appellant for the offences under section 302 or Section 201 of I.P.C. are set aside. The appellant is on bail granted by this Court after nine years' incarceration. The bail bond shall stand can- celled. He shall remain at liberty unless he is required in any other case.\n 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 appel- lant, a peon, the driver and the cleaner for ride and tram- pled upon their fundamental personal liberty and lugged them in the capital offence punishable under section 302. I.P.C.\n by freely fabricating evidence against the innocent. Un- doubtedly. 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 pre- cious one guaranteed by Art. 3 of Universal Declaration of Human Rights and also Art. 21 of the Constitution of India and its deprivation shall be only in accordance with law.\n The accused has the fundamental right to defend himself under Art. 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 effec- tively 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 Arts.\n 19 and 21 of the Constitution. Weaker the person accused of an offence, greater the caution and higher the responsi- bility of the law enforcement agencies. Before accusing an innocent person of the commission of a grave crime like the one punishable under section 302, I.P.C., an honest, sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was re- sponsible to commit the offence. Indulging in free fabrica- tion of the record is a deplorable conduct on the part of an investigating officer which under-mines the public confi- dence reposed in the investigating agency. Therefore, great- er care and circumspection are needed by the investigating agency in this regard. It is time that the investigating agencies, evolve new and scientific investigating methods, taking aid of rapid scientific development in the field of investigation. It is also the duty of the State, i.e. Cen- tral or State Government to organise periodical refresher courses for the investigating officers to keep them abreast of the latest scientific development in the art of investi- gation and the march of law so that the real offender would be brought to book and the innocent would not be exposed to prosecution.\n Though Art. 39A 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 practicing in the court con- cerned, 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.\n We fervently hope and trust that concerned authorities and Senior Advocates would take appropriate steps in this regard.\n The appeal is accordingly allowed.\n P.S.S. Appeal allowed.\n "
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"text": "PETITIONER:\nBAKUL CASHEW CO. & ORS.\n\nVs.\n\nRESPONDENT:\nSALES TAX OFFICER QUILON & ANR.\n\nDATE OF JUDGMENT12/03/1986\n\nBENCH:\nVENKATARAMIAH, E.S. (J)\nBENCH:\nVENKATARAMIAH, E.S. (J)\nTHAKKAR, M.P. (J)\n\nCITATION: 1986 SCR (1) 610\n 1987 AIR 2239 1986 SCALE (1)380\n 1986 SCC (2) 365\n\nACT:\n Promissory estoppel, plea of - Phrases used by\n\nMinisters which cannot form the basis for a plea of\nestoppel, detailed Sales Tax exemption granted\nretrospectively by the State Government by GOMS 127/73/ID\ndated 12.10.1973 withdrawn by a leter GOMS 143/73/ID dated\n9.11.1973 issued under section 10(3) of the Kerala General\nSales Tax Act, 1963 (Kerala Act 15 of 1963) as amended,\nvalidity of - Power of Government to cancel the earlier\nNotification vis-a-vis the right of the cashew Factory\nowners to secure the exemption.\n\nHEADNOTE:\n The appellants are Cashew Processors owning and/or\n\nworking cashew factories wherein nearly about 80 per cent of\nthe raw nuts processed were being imported during the\nrelevant time from African countries."
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"text": "The import of raw nuts\nwere canalised through the Cashew Corporation of India and\nthey were allotted to the appellants and various other\nfactory owners who were engaged in the business of\nprocessing cashewnuts."
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"text": "There was delay in making the\nassessment of sales tax payable by them under section 5 of\nthe Kerala General Sales Tax Act, 1963 during the period\n1970 to 1974 and the Department commenced to make\nassessments in or about the year 1974."
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"text": "The Government in the\nmeantime issued a Notification dated 12.10.73 granting\nexemption to cashew manufacturers for the period between\nSeptember 1, 1970 and September 30, 1973 and had later\ncancelled it by Notification dated 9.11.73, that is within\nthree weeks of the earlier Notification granting exemption."
}
},
{
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"id": "f49eaa2805954410904d27fe945c09d5",
"to_name": "text",
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"value": {
"end": 2121,
"labels": [
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],
"start": 1814,
"text": "\n\n The appellants filed a writ petition contending: (i)\nthat the Government was precluded by the rule of promissory\nestoppel from claiming the purchase tax in respect of\ncashewnuts imported from African countries; and (ii) that\nthe subsequent withdrawal of the exemption granted on\n12.10.73 was bad."
}
},
{
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"value": {
"end": 2226,
"labels": [
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],
"start": 2122,
"text": "The Writ Petitions having been dismissed,\nthe appellants have come up in appeal by way of special\nleave."
}
},
{
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"end": 2296,
"labels": [
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],
"start": 2226,
"text": "\n611\n\n Dismissing the appeal, the Court\n^\n\n HELD : 1.1"
}
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{
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"id": "79c69667761f4d33b73b308a309cf44a",
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"end": 2523,
"labels": [
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],
"start": 2297,
"text": "The appellants in the instant case, are not\n\n\nentitled to any relief either on the principle of promissory\nestoppel or on the basis of the earlier Notification issued\nunder section 10 of the Kerala General Sales Tax Act, 1963."
}
},
{
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"id": "928d6cb942af42b88121f30c0a9c1206",
"to_name": "text",
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"end": 2547,
"labels": [
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],
"start": 2523,
"text": "\n[621 E-F]\n\n 1.2"
}
},
{
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"id": "638ea1aa4f1b4c038bca5ead70bf3325",
"to_name": "text",
"type": "labels",
"value": {
"end": 2629,
"labels": [
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],
"start": 2548,
"text": "The whole case of the promissory estoppel lacks the\nnecessary factual foundation."
}
},
{
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"id": "56346f8d0f6d49efb4d9ad39fa242e60",
"to_name": "text",
"type": "labels",
"value": {
"end": 3007,
"labels": [
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],
"start": 2630,
"text": "In the instant case, the\nallegations made in the petition do not establish (i) that\nthere was a definite representation by the Government to the\neffect that the Government will not levy the tax; (ii) that\nthe appellants in fact altered their position by acting upon\nsuch representation; and (iii) that they had suffered from\nsome prejudice sufficient to constitute an estoppel."
}
},
{
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"id": "022eb6192895450a8f363f73f31c088e",
"to_name": "text",
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"value": {
"end": 3018,
"labels": [
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],
"start": 3008,
"text": "[617 F-\nG]"
}
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{
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"end": 3032,
"labels": [
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"start": 3018,
"text": "\n\n 1.3"
}
},
{
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"to_name": "text",
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"value": {
"end": 3121,
"labels": [
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],
"start": 3033,
"text": "In cases of this nature, the evidence of\nrepresentation should be clear and unambiguous."
}
},
{
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"id": "ef0da446e159406d918b66c8be921fb5",
"to_name": "text",
"type": "labels",
"value": {
"end": 3159,
"labels": [
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],
"start": 3122,
"text": "It \"must be\ncertain to every intent.\""
}
},
{
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"id": "86573920d9e048ae948053e0cff2b135",
"to_name": "text",
"type": "labels",
"value": {
"end": 3408,
"labels": [
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],
"start": 3160,
"text": "The statements that are made by\nministers at such meetings, such as, \"let us see\", \"we shall\nconsider the question of granting of exemption\nsympathetically\", \"we shall get the matter examined\", \"you\nhave a good case for exemption\" etc. even if true"
}
},
{
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"id": "eda34f9719f7434ca3ec26997fefdd41",
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"type": "labels",
"value": {
"end": 3417,
"labels": [
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],
"start": 3408,
"text": ", cannot\n"
}
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{
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"id": "86982dde32284673a41658e08e017f2c",
"to_name": "text",
"type": "labels",
"value": {
"end": 3454,
"labels": [
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],
"start": 3417,
"text": "form the basis for a plea of estoppel"
}
},
{
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"id": "4d14b39ec26940ef9bbefca412e6ab13",
"to_name": "text",
"type": "labels",
"value": {
"end": 3554,
"labels": [
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],
"start": 3454,
"text": ". The events that have\ntaken place subsequently belie the fact of any such promise\nby the ministers."
}
},
{
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"id": "dc51830c97734433ada4a1b244186843",
"to_name": "text",
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"value": {
"end": 3860,
"labels": [
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],
"start": 3555,
"text": "In fact the Cashew Corporation of India\nhad made a representation to the Government of India on May\n7, 1971 and the Government of India wrote to the State\nGovernment on March 4, 1972 urging that the exemption prayed\nfor by the cashew manufacturers may be favourably considered\nby the Government of Kerala."
}
},
{
"from_name": "label",
"id": "217928b88ec342488179c0e5f6835394",
"to_name": "text",
"type": "labels",
"value": {
"end": 3920,
"labels": [
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],
"start": 3861,
"text": "The Government of Kerala\nhowever rejected the said request."
}
},
{
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"id": "b1fcbdd6764c4ffbbb1de3cfb32d9aac",
"to_name": "text",
"type": "labels",
"value": {
"end": 4099,
"labels": [
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],
"start": 3921,
"text": "Then on further pressure\nbeing put upon it, it issued the notification dated October\n12, 1973 and immediately thereafter withdraw it after it\nencountered severe public criticism."
}
},
{
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"id": "c4786cc78d75423ea069e5f0d93d0f3f",
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"value": {
"end": 4277,
"labels": [
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],
"start": 4100,
"text": "This conduct on their\npart is not consistent with the appellants' case that they\nhad actually promised in the year 1971 to exempt the cashew\ntrade from payment of the sales tax."
}
},
{
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"id": "513d486da790422499b7f71a53122405",
"to_name": "text",
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"value": {
"end": 4301,
"labels": [
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],
"start": 4278,
"text": "[617 C-F]\n\n 2.1"
}
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{
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"to_name": "text",
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"value": {
"end": 4497,
"labels": [
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],
"start": 4302,
"text": "The State Government had the necessary power to\ncancel any Notification earlier issued, which power of\ncancellation has been expressly conferred by section 10 (3)\nof Kerala General Sales Tax Act."
}
},
{
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"id": "9c7e52613bfa4ff6b3dca61c383431f7",
"to_name": "text",
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"value": {
"end": 4576,
"labels": [
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],
"start": 4498,
"text": "The authority which can\nissue a\n612\nNotification may certainly cancel it also."
}
},
{
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"id": "c7a1c6ca5e6b4d72b88202419be5652f",
"to_name": "text",
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"value": {
"end": 4587,
"labels": [
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],
"start": 4577,
"text": "The State\n"
}
},
{
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"id": "2ba6e51b5da74e4abbd7ce197bc7be83",
"to_name": "text",
"type": "labels",
"value": {
"end": 4861,
"labels": [
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],
"start": 4587,
"text": "Government did so and cancelled the earlier Notification as\nthere was a public hue and cry that the State Government had\nshown undue favour to the Kerala Cashewnut factory owners at\na time when the State Government was passing through grave\nand difficult financial position."
}
},
{
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"id": "4fff8ac339364fbfa57fc03156763f8b",
"to_name": "text",
"type": "labels",
"value": {
"end": 4927,
"labels": [
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],
"start": 4862,
"text": "Moreover the transactions\nin question related to the past period."
}
},
{
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"id": "7fd78af6adb24d6ba5fdea2036fc4dd8",
"to_name": "text",
"type": "labels",
"value": {
"end": 4958,
"labels": [
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],
"start": 4928,
"text": "[618 H, 621 D-E]\n\n 2.2"
}
},
{
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"id": "d0aac891ecac46e6825f53783043fcec",
"to_name": "text",
"type": "labels",
"value": {
"end": 5147,
"labels": [
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],
"start": 4959,
"text": "An authority which has the power to make\nsubordinate legislation cannot make it with retrospective\neffect unles it is so authorised by the Legislature which\nhas conferred that power on it."
}
},
{
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"id": "b1c4de2b08934c9aab4cec49e0b178b8",
"to_name": "text",
"type": "labels",
"value": {
"end": 5287,
"labels": [
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],
"start": 5148,
"text": "The power of exemption in\nthe instant case was exercised through a retrospective\nNotification which was a piece of subordinate legislation."
}
},
{
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"id": "c11e28a0783a4d51b955f616e79f55fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 5499,
"labels": [
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],
"start": 5288,
"text": "Further on the date on which the notification was issued the\nKerala Government had no such power under section 10 of the\nAct as it stood then to issue a notification granting\nexemption with retrospective effect."
}
},
{
"from_name": "label",
"id": "6176554c12564850881a71715d7fc7bc",
"to_name": "text",
"type": "labels",
"value": {
"end": 5633,
"labels": [
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],
"start": 5500,
"text": "Such power was actually\nconferred on it later on by the Kerala Legislature only by\nway of amendment in 1980 by Kerala Act 19 of 1980."
}
},
{
"from_name": "label",
"id": "38740a39fe264145a3366a459c3b34d6",
"to_name": "text",
"type": "labels",
"value": {
"end": 5867,
"labels": [
"PREAMBLE"
],
"start": 5634,
"text": "By the\naddition of the words \"either prospectively or\nretrospectively\" in sub-section (1) of section 10 the State\nLegislature has now conferred the necessary power on the\nState Government to grant exemption with retrospective\neffect."
}
},
{
"from_name": "label",
"id": "4b4019d2e13b496a826767424a5fe150",
"to_name": "text",
"type": "labels",
"value": {
"end": 5909,
"labels": [
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],
"start": 5868,
"text": "This amendment also suggests that earlier"
}
},
{
"from_name": "label",
"id": "a895c3e5a2fc4ac8b15f3fcecbd24d1f",
"to_name": "text",
"type": "labels",
"value": {
"end": 6488,
"labels": [
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],
"start": 5910,
"text": "the\n\nGovernment had no such power to grant exemption with\nretrospective effect. [619 A-B; 620 B-C; 621 A-C]\n\n Income Tax Officer v. M.C. Ponnoose & Ors., [1970] 1\nS.C.R. 678 referred to.\n\nJUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1725 (NT) of 1977.\n From the Judgment and Order dated 1st December, 1976 of the Kerala High Court in O.P. No. 1740 of 1976.\n P. Govindan Nair, Mrs. A.K. Verma, S. Sukumaran and D.N. Misra for the Appellants.\n T.S. Krishnamurthy Iyer, Karunakaran Nambiar and V.J.\n Francis for the Respondents."
}
},
{
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"id": "82a802fd058f46e69f70e570ac70456a",
"to_name": "text",
"type": "labels",
"value": {
"end": 6553,
"labels": [
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],
"start": 6488,
"text": "\n613 The Judgment of the Court was delivered by VENKATARAMIAH, J."
}
},
{
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"id": "de04401cb44e410b92b4a0a0b252a971",
"to_name": "text",
"type": "labels",
"value": {
"end": 6790,
"labels": [
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],
"start": 6554,
"text": "This appeal by special leave is filed against the judgment dated December 1, 1976 in the petition bearing Writ Petition No. O.P. 1740 of 1976 on the file of the Kerala High Court filed by the afore-mentioned 26 appellants and 20 others."
}
},
{
"from_name": "label",
"id": "d136c3e67ce34510859d91e04e13563e",
"to_name": "text",
"type": "labels",
"value": {
"end": 7691,
"labels": [
"FAC"
],
"start": 6791,
"text": "They prayed in the Writ Petition inter alia for the issue of a writ in the nature of mandamus to the State Government of Kerala to give effect to the notification issued by the State Government bearing No.\nG.O.MS. 127/73/ID dated October 12, 1973 under section 10 of the Kerala General Sales Tax Act, 1963 (15 of 1963) (hereinafter referred to as 'the Act') by which the State Government had retrospectively granted an exemption in respect of the tax payable under section 5 of the said Act by the cashew manufacturers in that State on the purchase turnover of cashewnuts imported from outside India through the Cashew Corporation of India for the period between September 1, 1970 and September 30, 1973 after quashing the subsequent notification bearing No. G.O.MS. 143/73/TD dated November 9, 1973 issued under section 10(3) of the Act cancelling the above said notification dated October 12, 1973."
}
},
{
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"id": "5c8224e928d14957bb7efc1c10f161c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 7971,
"labels": [
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],
"start": 7692,
"text": "The appellants and the other persons who had filed the writ petition before the High Court are cashew processors owning and/or working cashew factories wherein nearly about 80 per cent of the raw nuts processed were being imported during the relevant time from African countries."
}
},
{
"from_name": "label",
"id": "f38eaf1178794b0f91771136e2457da8",
"to_name": "text",
"type": "labels",
"value": {
"end": 8181,
"labels": [
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],
"start": 7972,
"text": "The import of raw nuts was canalised through the Cashew Corporation of India and they were allotted to the appellants and various other factory owners who were engaged in the business of processing cashewnuts."
}
},
{
"from_name": "label",
"id": "af8b4a3f112d4fa3b62193053b4533dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 8396,
"labels": [
"FAC"
],
"start": 8182,
"text": "It appears that there was delay in making the assessment of tax payable by them under section 5 of the Act during the periods 1970 to 1974 and the Department commenced to make assessments in or about the year 1974."
}
},
{
"from_name": "label",
"id": "785f8ea619d24f2ca4d1884557313c8f",
"to_name": "text",
"type": "labels",
"value": {
"end": 8735,
"labels": [
"FAC"
],
"start": 8397,
"text": "The Government in the meanwhile had issued the notification dated October 12, 1973 granting exemption to cashew manufacturers for the period between September 1, 1970 and September 30, 1973 and had later on cancelled it by notification dated November 9, 1973 within about three weeks from the date on which the exemption had been granted."
}
},
{
"from_name": "label",
"id": "401f58641eae4c8da80df745d404ca7c",
"to_name": "text",
"type": "labels",
"value": {
"end": 9042,
"labels": [
"FAC"
],
"start": 8736,
"text": "It is not necessary to refer to all the allegations made in the writ petition for purposes of this case since the only point urged before us relates to the right of the appellants to secure the exemption as stated in the notification dated October 12, 1973 by virtue of the rule of 614 promissory estoppel."
}
},
{
"from_name": "label",
"id": "edcefadfbf3a4e1fa8eaebc33ffb16e4",
"to_name": "text",
"type": "labels",
"value": {
"end": 9441,
"labels": [
"ARG_PETITIONER"
],
"start": 9043,
"text": "The appellants urged two contentions before the High Court in support of their plea : (i) that the Government was precluded by the rule of promissory estoppel from claiming the purchase tax in respect of cashewnuts imported from African countries and (ii) that the exemption that had been granted on October 12, 1973 could not be withdrawn by the subsequent notification issued on November 9, 1973."
}
},
{
"from_name": "label",
"id": "af3dbfa7bd0f4ebbbb33e6c0634c7dc3",
"to_name": "text",
"type": "labels",
"value": {
"end": 9788,
"labels": [
"ARG_PETITIONER"
],
"start": 9442,
"text": "In support of first limb of their argument the appellants depended upon the representation which was alleged to have been made on behalf of the Government by the Chief Minister, the Industries Minister and the Revenue Minister at a meeting held on April 25, 1971 and in support of their second contention they depended upon section 10 of the Act."
}
},
{
"from_name": "label",
"id": "152ecbaaea984b86a65f8437a3e5d65d",
"to_name": "text",
"type": "labels",
"value": {
"end": 9862,
"labels": [
"FAC"
],
"start": 9789,
"text": "The Government contested the case of the appellants on both these points."
}
},
{
"from_name": "label",
"id": "7ee169f8f87040769a1459a10ac7f90f",
"to_name": "text",
"type": "labels",
"value": {
"end": 9952,
"labels": [
"RLC"
],
"start": 9863,
"text": "The High Court upheld the case of the State Government and rejected the said contentions."
}
},
{
"from_name": "label",
"id": "1f7724575b404d6795c7e081b17f375d",
"to_name": "text",
"type": "labels",
"value": {
"end": 10094,
"labels": [
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],
"start": 9953,
"text": "It, however, directed the Kerala Sales Tax Appellate Tribunal to make assessments taking into account the other contentions of the assessees."
}
},
{
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"id": "b8fb22d918a640b1a17605158c69d818",
"to_name": "text",
"type": "labels",
"value": {
"end": 10208,
"labels": [
"FAC"
],
"start": 10095,
"text": "This appeal by special leave is filed against the judgment of the High Court of Kerala in the said writ petition."
}
},
{
"from_name": "label",
"id": "c99658188ac246c4b1bcc4f7b4cdfb58",
"to_name": "text",
"type": "labels",
"value": {
"end": 10346,
"labels": [
"FAC"
],
"start": 10208,
"text": "\n The allegations regarding the plea based on promissory estoppel are found in Paragraphs 10 & 11 of the petition which reads thus :- \"10."
}
},
{
"from_name": "label",
"id": "bf79262dd31f4627a02dcd99e46fe09a",
"to_name": "text",
"type": "labels",
"value": {
"end": 10685,
"labels": [
"FAC"
],
"start": 10347,
"text": "When the scheme of canalisation came to be introduced in September, 1970, the members of the cashew industry like the first petitioners were keen that the purchases of raw cashewnuts in the form of allotment from the said Corporation should not be subjected to tax under the said Act as was the case under the open general licence scheme."
}
},
{
"from_name": "label",
"id": "ce2b9f8baf6b4133a59c50a1b3f8461c",
"to_name": "text",
"type": "labels",
"value": {
"end": 10922,
"labels": [
"FAC"
],
"start": 10685,
"text": "\n The then Chairman of the said Corporation, Shri M.C. Sarin, as also its Managing Director Shri Z.K. Joseph assured the members of the cashew industry that such purchases would not be exigible to tax under the said Act."
}
},
{
"from_name": "label",
"id": "cc89493603334c59a3c10dcec4b15bfa",
"to_name": "text",
"type": "labels",
"value": {
"end": 11289,
"labels": [
"FAC"
],
"start": 10923,
"text": "In a meeting held on the 25th April 1971 where Shri Z.K. Joseph of the said Corporation was also present the representatives of the industry were assured by the Chief Minister Shri Achuta Menon, the then Industries Minister Shri N.E. Bellaram and the then Revenue Minister Baby John that no tax would be levied under the said Act on the turnover of African raw nuts."
}
},
{
"from_name": "label",
"id": "00b885585145498bad7bb22a407d8abd",
"to_name": "text",
"type": "labels",
"value": {
"end": 11297,
"labels": [
"FAC"
],
"start": 11290,
"text": "615 11."
}
},
{
"from_name": "label",
"id": "1a6d2515ecaa460f84753c5ed5acc78d",
"to_name": "text",
"type": "labels",
"value": {
"end": 11603,
"labels": [
"FAC"
],
"start": 11298,
"text": "Subsequently, for three years, the Respondents did not initiate assessment proceeding against the allottees like the first petitioner and gave the allottees to believe that no tax would be levied on such purchases, relying upon which the allottees have quoted prices for exports and made huge commitments."
}
},
{
"from_name": "label",
"id": "7932613d9fb4441984f08c17ef8007ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 11778,
"labels": [
"FAC"
],
"start": 11604,
"text": "If such imports were to be regarded as taxable purchases by the respondents, the allottees, like the first petitioner would not have made commitments with the foreign buyers."
}
},
{
"from_name": "label",
"id": "ca1e457c8af843888e592fc9e8ac1ee5",
"to_name": "text",
"type": "labels",
"value": {
"end": 12014,
"labels": [
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],
"start": 11779,
"text": "In fact, as late as 12th October, 1973, a notification was issued by the fourth respondent, a copy of which is hereto annexed and marked Exh.\n 'A' under section 10 of the said Act giving effect to such representations."
}
},
{
"from_name": "label",
"id": "21be87d8c7ae4111bd4ef90327a1f256",
"to_name": "text",
"type": "labels",
"value": {
"end": 12197,
"labels": [
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],
"start": 12015,
"text": "The said notification was published in Kerala Gazette on 23rd October, 1973, clearly stating that the exemption to such purchases was being accorded on the ground of public interest."
}
},
{
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"id": "27b719e16e97477ea243a9efd6792016",
"to_name": "text",
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"value": {
"end": 12433,
"labels": [
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],
"start": 12198,
"text": "Without assigning reasons or showing any change of circumstances, in less than twenty days, another notification was issued on 9th November, 1973, a copy of which is hereto annexed and marked Exh. 'B' withdrawing the said exemption.\"\n "
}
},
{
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"value": {
"end": 12544,
"labels": [
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],
"start": 12433,
"text": "In the counter-affidavit filed on behalf of the State Government it is stated in Paragraphs 18 & 19 thus : \"18."
}
},
{
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"id": "4e4966d6df474d098065e4edaf458611",
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"value": {
"end": 12581,
"labels": [
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],
"start": 12545,
"text": "The averments in para 11 are denied."
}
},
{
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"value": {
"end": 12809,
"labels": [
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],
"start": 12582,
"text": "The Cashew Corporation of India wrote to the Government by Memorandum dated 3.5.1971 that cashew industry may be exempted from payment of tax under the Kerala General Sales Tax Act on their purchases of imported raw cashewnuts."
}
},
{
"from_name": "label",
"id": "48ef41ec437343599bb47bff201783e7",
"to_name": "text",
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"value": {
"end": 12960,
"labels": [
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],
"start": 12810,
"text": "The Ministry of Foreign Trade also addressed a communication to the State Government dated 4.3.1972 that the matter may be sympathetically considered."
}
},
{
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"id": "192a5d452c994ac6a1df5075bacf10f5",
"to_name": "text",
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"value": {
"end": 13084,
"labels": [
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],
"start": 12961,
"text": "The cashew manufacturers and exporters' Associations also moved the Government in this behalf by memorandum dated 6.3.1972."
}
},
{
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"id": "ebbe264de1c24313a384507224c331c6",
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"value": {
"end": 13171,
"labels": [
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],
"start": 13085,
"text": "The Government directed the Board of Revenue (Taxes) to submit a report in the matter."
}
},
{
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"id": "0ef5e8dc8d9c406f9f6f429dc7f9e26c",
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"value": {
"end": 13274,
"labels": [
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],
"start": 13172,
"text": "The matter was engaging the attention of the Board of Revenue and the State Government from some time."
}
},
{
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"id": "2c44c400b6d54b3a929a3c14e49006d1",
"to_name": "text",
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"value": {
"end": 13458,
"labels": [
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],
"start": 13275,
"text": "In 616 view of very heavy stakes involved in the matter, the Government had to analyse the entire situation, especially with reference to the very high amount of the Revenue involved."
}
},
{
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"id": "cb6ffd53eafa4936bf47734131002b78",
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"value": {
"end": 13575,
"labels": [
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],
"start": 13459,
"text": "It was reported that the grant of exemption will involved loss of revenue of at least one crore of rupees per annum."
}
},
{
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"id": "f8bff01a801a4c36b7812f8214e6c27a",
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"value": {
"end": 13685,
"labels": [
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],
"start": 13576,
"text": "After consideration of the matter the State Government decided to reject the request of exemption prayed for."
}
},
{
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"id": "08dc119fa5e04506b1bbb05bcdcd988e",
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"value": {
"end": 13834,
"labels": [
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],
"start": 13686,
"text": "The Cashew Corporation of India and the Government of India were given a reply communicating the decision of the State Government in February, 1973."
}
},
{
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"id": "007656b76a6f412381d80834cd566115",
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"value": {
"end": 13998,
"labels": [
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],
"start": 13835,
"text": "Thereafter the Kerala State Cashew Development Corporation requested the Govt. to re-examine the decision as the levy of tax would be heavy burden on the industry."
}
},
{
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"id": "b033228ee03c4b30a885f6e0b6170fa3",
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"value": {
"end": 14098,
"labels": [
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],
"start": 13999,
"text": "The Government passed an order (Ext.A) granting the exemption for the period 1.9.1970 to 30.9.1973."
}
},
{
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"id": "7451fa34781147ea99f219c31a7946e2",
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"value": {
"end": 14169,
"labels": [
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],
"start": 14099,
"text": "It was resolved then that tax should be levied from 1.10.1973 onwards."
}
},
{
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"id": "3d757eabc67e45ec9edfb6ecd0f4d5ed",
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"value": {
"end": 14317,
"labels": [
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],
"start": 14170,
"text": "There was considerable criticism about the grant of exemption especially in the context of the grave and difficult financial position of the State."
}
},
{
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"id": "d9da33012f774c2bab637a44c4153a86",
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"value": {
"end": 14455,
"labels": [
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],
"start": 14317,
"text": "\n After mature consideration, by notification dated 9.11.1973 (Ext.B) the earlier Government order dated 12.10.1973 (Ext.A) was cancelled."
}
},
{
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"id": "9f16ed5101754f0aa78830038930ed5d",
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"value": {
"end": 14569,
"labels": [
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],
"start": 14457,
"text": "19. The allottees were not given to believe that no tax would be levied on such purchases............\""
}
},
{
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"id": "bd5760613dc14568a8dba56def6f17a0",
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"type": "labels",
"value": {
"end": 14692,
"labels": [
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],
"start": 14569,
"text": "\n In the reply affidavit filed on behlaf of the appellants the above allegations made in the counter- affidavit are denied."
}
},
{
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"id": "d3d70e8cbe2b4d37baa96f5effa4f1ed",
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"value": {
"end": 14952,
"labels": [
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],
"start": 14692,
"text": "\n The allegations in the appeal do not contain any information about who was present at the so called meeting, what representation was actually made, whether any of the appellants acted on the basis of the said representation and how he was prejudiced thereby."
}
},
{
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"id": "18014d599a974c7d83807afc3de87a8a",
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"value": {
"end": 15130,
"labels": [
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],
"start": 14953,
"text": "No material in the form of documents in support of that plea that they altered their price structure relying upon the alleged representation was also produced by the appellants."
}
},
{
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"id": "f597a867cca74a0f9295848775febfe4",
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"value": {
"end": 15180,
"labels": [
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],
"start": 15131,
"text": "The appellants were owners of existing factories."
}
},
{
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"id": "f3edb56dbe2541ea934f9a483b6856b9",
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"end": 15293,
"labels": [
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],
"start": 15181,
"text": "None of them is shown to have established any new factory relying on the representation of any of the ministers."
}
},
{
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"id": "a5ed52d46ee24db19715c811c1b2aa77",
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"end": 15360,
"labels": [
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],
"start": 15294,
"text": "They were carrying on the business in their 617 factories already."
}
},
{
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"id": "400014887fa74bbf9d3b7729ed4de5cd",
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"value": {
"end": 15479,
"labels": [
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],
"start": 15361,
"text": "It is not their case that they would have closed down their factories but for the alleged representation made to them."
}
},
{
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"id": "d52d83b3adbd494c8379fc8b02e709c2",
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"value": {
"end": 15710,
"labels": [
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],
"start": 15480,
"text": "Nor it is their case that they gave up a more advantageous project and diverted their capital towards the cashewnut factory believing that the Government would grant exemption from payment of tax and had suffered any loss thereby."
}
},
{
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"id": "4b03fa363f724744b1793f93ef4b8262",
"to_name": "text",
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"value": {
"end": 15840,
"labels": [
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],
"start": 15711,
"text": "It is contended that the officer who had filed the counter-affidavit could not have known what transpired at the alleged meeting."
}
},
{
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"id": "f6a127b9ebcf476cacb7e680b1718103",
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"value": {
"end": 15895,
"labels": [
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],
"start": 15841,
"text": "The same plea is available against the appellants too."
}
},
{
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"id": "8a65a11fe8e9446db7d78917545646fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 16094,
"labels": [
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],
"start": 15896,
"text": "The person who has sworn to the affidavit on behalf of the appellants also does not say that he was present at the meeting or that he had any personal knowledge about what transpired at the meeting."
}
},
{
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"id": "cf9be0c41094496081b42166a838e357",
"to_name": "text",
"type": "labels",
"value": {
"end": 16170,
"labels": [
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],
"start": 16094,
"text": "\nHe does not give any material details about what actually transpired there."
}
},
{
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"id": "b9ebae8900f245a290d8ba07eb0eb4a6",
"to_name": "text",
"type": "labels",
"value": {
"end": 16258,
"labels": [
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],
"start": 16171,
"text": "In cases of this nature the evidence of representation should be clear and unambiguous."
}
},
{
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"id": "195669f81e0b4482ae6812ee54e72115",
"to_name": "text",
"type": "labels",
"value": {
"end": 16296,
"labels": [
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],
"start": 16259,
"text": "It 'must be certain to every intent'."
}
},
{
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"id": "2ce2382c8b2b40889b099a4e7fe13051",
"to_name": "text",
"type": "labels",
"value": {
"end": 16592,
"labels": [
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],
"start": 16297,
"text": "The statements that are made by ministers at such meetings, such as, 'let us see', 'we shall consider the question of granting of exemption sympathetically', 'we shall get the matter examined', 'you have a good case for exemption' etc. even if true, cannot form the basis for a plea of estoppel."
}
},
{
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"id": "2d2dc99583924a2e826eced5b43da748",
"to_name": "text",
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"value": {
"end": 16701,
"labels": [
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],
"start": 16593,
"text": "Moreover, the events that have taken place subsequently belie the fact of any such promise by the ministers."
}
},
{
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"id": "d0558025e6d240a5ba9a96c347cacf1c",
"to_name": "text",
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"value": {
"end": 17015,
"labels": [
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],
"start": 16702,
"text": "It is seen that the Cashew Corporation of India had made a representation to the Government of India on May 7, 1971 and the Government of India wrote to the State Government on March 4, 1972 urging that the exemption prayed for by the cashew manufacturers may be favourably considered by the Government of Kerala."
}
},
{
"from_name": "label",
"id": "2241b788ea694207bfb9f747eea4b324",
"to_name": "text",
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"value": {
"end": 17075,
"labels": [
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],
"start": 17015,
"text": "\nThe Government of Kerala however rejected the said request."
}
},
{
"from_name": "label",
"id": "24eaf9546c8147318da006c11231777f",
"to_name": "text",
"type": "labels",
"value": {
"end": 17254,
"labels": [
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],
"start": 17075,
"text": "\nThen on further pressure being put upon it, it issued the notification dated October 12, 1973 and immediately thereafter withdrew it after it encountered severe public criticism."
}
},
{
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"id": "fbc59fe320ce4487802c1a8df2bb29c3",
"to_name": "text",
"type": "labels",
"value": {
"end": 17426,
"labels": [
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],
"start": 17255,
"text": "This conduct on their part is not consistent with the appellants' case that they had actually promised in the year 1971 to exempt the cashew trade from payment of the tax."
}
},
{
"from_name": "label",
"id": "2924a44144284759852f3507bb84759f",
"to_name": "text",
"type": "labels",
"value": {
"end": 17778,
"labels": [
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],
"start": 17427,
"text": "The allegations made in the petition do not establish (i) that there was a definite representation by the Government to the effect that the Government will not levy the tax; (ii) that the appellants in fact altered their position by acting upon such representation, and (iii) that they had suffered some prejudice sufficient to constitute an estoppel."
}
},
{
"from_name": "label",
"id": "bb343aeb5d2a433189eb438017944c11",
"to_name": "text",
"type": "labels",
"value": {
"end": 17862,
"labels": [
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],
"start": 17779,
"text": "Hence the whole case of promissory estoppel lacks the necessary factual foundation."
}
},
{
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"id": "58816cec33e343249667e9c03514fe61",
"to_name": "text",
"type": "labels",
"value": {
"end": 18157,
"labels": [
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],
"start": 17863,
"text": "It is, therefore, unnecessary to consider the question of law 618 whether the plea of promissory estoppel can be raised against a legislation which levies tax and whether an assessee can claim exemption from a tax levied by the legislature merely on the basis of a representation of a minister."
}
},
{
"from_name": "label",
"id": "b10f4c1dea764da88a3a70230954af8e",
"to_name": "text",
"type": "labels",
"value": {
"end": 18306,
"labels": [
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],
"start": 18157,
"text": "\n We shall now proceed to consider the plea relating to the power of the Government to cancel the notification issued under section 10(1) of the Act."
}
},
{
"from_name": "label",
"id": "6b567fbd6c35490eacded203b5e58cf5",
"to_name": "text",
"type": "labels",
"value": {
"end": 19022,
"labels": [
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],
"start": 18306,
"text": "\n During the relevant period section 10 of the Act read thus : \"10. Power of Government to grant exemption and reduction in rate of tax : (1) The Government may, if they consider it necessary in the public interest, by notification in the Gazette, make an exemption or reduction in rate in respect of any tax payable under this Act : (i) on the sale or purchase of any specified goods or class of goods, at all points or at a specified point or points in the series of sales or purchase by successive dealers, or (ii) by any specified class of person, in regard to the whole or any part of their turnover.\n (2) Any exemption from tax, or reduction in the rate of tax, notified under sub-section (1)."
}
},
{
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"id": "a6d93dbdba804e8d9aa269969101478b",
"to_name": "text",
"type": "labels",
"value": {
"end": 19194,
"labels": [
"STA"
],
"start": 19023,
"text": "- (a) may extend to the whole State or any specified area or areas therein, (b) may be subject to such restrictions and conditions as may be specified in the notification."
}
},
{
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"id": "515e617cb1d34dd481d9a80e147eb6d2",
"to_name": "text",
"type": "labels",
"value": {
"end": 19341,
"labels": [
"STA"
],
"start": 19194,
"text": "\n (3) The Government may, by notification in the Gazette, cancel or vary any notification issued under sub-section (1).\"\n "
}
},
{
"from_name": "label",
"id": "4f239475e6874052930f0eb129382662",
"to_name": "text",
"type": "labels",
"value": {
"end": 19497,
"labels": [
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],
"start": 19341,
"text": "As regards the power of Government to cancel the notification which had been issued earlier, the High Court has upheld the power of the Government to do so."
}
},
{
"from_name": "label",
"id": "d8a79b56327944c3b0cafcf66185fe24",
"to_name": "text",
"type": "labels",
"value": {
"end": 19561,
"labels": [
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],
"start": 19498,
"text": "We think that the 619 High Court was right in taking that view."
}
},
{
"from_name": "label",
"id": "74b0136ba9384a76993d41a2ccc77d63",
"to_name": "text",
"type": "labels",
"value": {
"end": 19649,
"labels": [
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],
"start": 19562,
"text": "The liability to pay sales tax arose at the point of time when the purchases were made."
}
},
{
"from_name": "label",
"id": "a011c5e728ce492e8f399a9dd01db284",
"to_name": "text",
"type": "labels",
"value": {
"end": 19789,
"labels": [
"ANALYSIS"
],
"start": 19650,
"text": "The power of exemption in the instant case was exercised through a retrospective notification which was a piece of subordinate legislation."
}
},
{
"from_name": "label",
"id": "760b3cf67c234988bdbbda75a661188f",
"to_name": "text",
"type": "labels",
"value": {
"end": 20015,
"labels": [
"ANALYSIS"
],
"start": 19790,
"text": "It has been held by this Court that an authority which has the power to make subordinate legislation cannot make it with retrospective effect unless it is so authorised by the legislature which has conferred that power on it."
}
},
{
"from_name": "label",
"id": "16924d4f4f3a41d2973327c7f0869b98",
"to_name": "text",
"type": "labels",
"value": {
"end": 20110,
"labels": [
"PRE_RELIED"
],
"start": 20016,
"text": "The law on the above point is neatly summarised in Income Tax Officer v. M.C. Ponnoosse & Ors."
}
},
{
"from_name": "label",
"id": "b96ed8ac51d84d09a7c947250a405b56",
"to_name": "text",
"type": "labels",
"value": {
"end": 20246,
"labels": [
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],
"start": 20111,
"text": "[1970] 1 S.C.R. 678 at pages 681-682 thus : \"Now it is open to a soverign legislature to enact laws which have retrospective operation."
}
},
{
"from_name": "label",
"id": "cf8611e5117f47fa9d7ac58d461c1937",
"to_name": "text",
"type": "labels",
"value": {
"end": 20751,
"labels": [
"PRE_RELIED"
],
"start": 20247,
"text": "Even when the Parliament enacts retrospective laws such laws are - in the words of Willes, J. in Phillips v.\n Eyre (40 Law J. Rep (N.S.) Q.B. 28 at p.37) - 'no doubt prima facie of questionable policy and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law.'"
}
},
{
"from_name": "label",
"id": "cfe864b0b9df43ec8bfa7de4dffe85b8",
"to_name": "text",
"type": "labels",
"value": {
"end": 20944,
"labels": [
"PRE_RELIED"
],
"start": 20752,
"text": "The courts will not, therefore, ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature."
}
},
{
"from_name": "label",
"id": "fcca481238354bbc96b1478220e1e266",
"to_name": "text",
"type": "labels",
"value": {
"end": 21024,
"labels": [
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],
"start": 20945,
"text": "The Parliament can delegate its legislative power within the recognised limits."
}
},
{
"from_name": "label",
"id": "ac3d708a4f1e4bbcb1ed3203393b6a0f",
"to_name": "text",
"type": "labels",
"value": {
"end": 21233,
"labels": [
"ANALYSIS"
],
"start": 21025,
"text": "Where any rule or regulation is made by the person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation."
}
},
{
"from_name": "label",
"id": "ec72ec8d84f64b91bc392d5585fb5962",
"to_name": "text",
"type": "labels",
"value": {
"end": 21443,
"labels": [
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],
"start": 21234,
"text": "It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect."
}
},
{
"from_name": "label",
"id": "9ded6ea0d75049fab3bf6543462baa1d",
"to_name": "text",
"type": "labels",
"value": {
"end": 22085,
"labels": [
"PRE_RELIED"
],
"start": 21444,
"text": "But where no such language is to be found it has been held by the courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye- law which can operate with retrospective effect; (see Subba Rao, J. in Dr. Indramani Pyarelal Gupta v. W.R. Nathu & Others 620 (1963 S.C.R. 721) - the majority not having expressed any different opinion on the point; Modi Food Products Ltd. v. Commissioner of Sales Tax U.P. (A.I.R. 1956 All. 35); India Sugar Refineries Ltd. v. State of Mysore (A.I.R. 1960 Mys. 326) and General S. Shivdev Singh & Anr. v. The State of Punjab & Others (1959 P.L.R. 514).\""
}
},
{
"from_name": "label",
"id": "5650cb915ffe4b1ba7b20035fc09f0ef",
"to_name": "text",
"type": "labels",
"value": {
"end": 22318,
"labels": [
"ANALYSIS"
],
"start": 22085,
"text": "\n In the instant case on the date on which the notification was issued the Kerala Government had no such power under section 10 of the Act as it stood then to issue a notification granting exemption with retrospective effect."
}
},
{
"from_name": "label",
"id": "deab7f751b26408cbc608ceae83bdcb2",
"to_name": "text",
"type": "labels",
"value": {
"end": 22452,
"labels": [
"ANALYSIS"
],
"start": 22318,
"text": "\nSuch power was actually conferred on it later on by the Kerala Legislature only by way of amendment in 1980 by Kerala Act 19 of 1980."
}
},
{
"from_name": "label",
"id": "d3ebfcd7be68427facd4c8cac536bdd0",
"to_name": "text",
"type": "labels",
"value": {
"end": 23073,
"labels": [
"STA"
],
"start": 22453,
"text": "Now section 10 of the Act reads thus : \"10. Power of Government to grant exemption and reduction in rate of tax - (1) the Government may, if they consider it necessary in the public interest by notification in the Gazette, make an exemption or reduction in rate, either prospectively or retrospectively in respect of any tax payable under this Act:- (i) On the sale or purchase of any specified goods or class of goods, at all points or at a specified point or points in the series of sales or purchases by successive dealers, or (ii) by any specified class of persons in regard to the whole or any part of the turnover."
}
},
{
"from_name": "label",
"id": "14c40f36721f429981f5a4e1943111c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 23360,
"labels": [
"STA"
],
"start": 23073,
"text": "\n (2) Any exemption from tax, or reduction in the rate of tax, notified under sub-section (1), - (a) may extend to the whole State or to any specified area or areas therein, - (b) may be subject to such restriction and conditions as may be specified in the notification."
}
},
{
"from_name": "label",
"id": "f3afb5048f6645e48936ff037c4ff0e7",
"to_name": "text",
"type": "labels",
"value": {
"end": 23517,
"labels": [
"STA"
],
"start": 23360,
"text": "\n (3) The Government may by notification in the 621 Gazette cancel or vary any notification issued under sub-section (1).\"\n (emphasis added)"
}
},
{
"from_name": "label",
"id": "d7f43be3f9dd4440a210ef994766740c",
"to_name": "text",
"type": "labels",
"value": {
"end": 23746,
"labels": [
"ANALYSIS"
],
"start": 23518,
"text": "By the addition of the words 'either prospectively or retrospectively' by the aforesaid amendment, the State Legislature has now conferred the necessary power on the State Government to grant exemption with retrospective effect."
}
},
{
"from_name": "label",
"id": "7f1318d092ba4401a205640865798175",
"to_name": "text",
"type": "labels",
"value": {
"end": 23867,
"labels": [
"ANALYSIS"
],
"start": 23747,
"text": "This amendment also suggests that earlier the Government had no such power to grant exemption with retrospective effect."
}
},
{
"from_name": "label",
"id": "a2a7a9eaae21488080c5caefb9838e46",
"to_name": "text",
"type": "labels",
"value": {
"end": 24041,
"labels": [
"ANALYSIS"
],
"start": 23867,
"text": "\n Hence the impugned notification which granted exemption on October 12, 1973 for the earlier period between September 1, 1970 and September 30, 1973 was ineffective."
}
},
{
"from_name": "label",
"id": "873693b52c1d478db419e13a564ea3da",
"to_name": "text",
"type": "labels",
"value": {
"end": 24232,
"labels": [
"ANALYSIS"
],
"start": 24042,
"text": "It was also not shown that relying upon the notification during the period between October 12, 1973 and November 9, 1973 the appellants had done any act which attracted the rule of estoppel."
}
},
{
"from_name": "label",
"id": "b74f07f8bc5a4d8cab82f963ab18bb85",
"to_name": "text",
"type": "labels",
"value": {
"end": 24297,
"labels": [
"ANALYSIS"
],
"start": 24233,
"text": "The authority which can issue a notification may cancel it also."
}
},
{
"from_name": "label",
"id": "4dded1a154ef46a198ec89ded8d24c6e",
"to_name": "text",
"type": "labels",
"value": {
"end": 24368,
"labels": [
"ANALYSIS"
],
"start": 24298,
"text": "Section 10(3) of the Act confers such power of cancellation expressly."
}
},
{
"from_name": "label",
"id": "570754998c4548f9a78d473a861ab270",
"to_name": "text",
"type": "labels",
"value": {
"end": 24642,
"labels": [
"ANALYSIS"
],
"start": 24369,
"text": "The State Government did so and cancelled the earlier notification as there was a public hue and cry that the State Government had shown undue favour of the Kerala cashewnut factory owners at a time when the State was passing through grave and difficult financial position."
}
},
{
"from_name": "label",
"id": "f524a23aff0f4ddbb33764c945aaaf08",
"to_name": "text",
"type": "labels",
"value": {
"end": 24708,
"labels": [
"ANALYSIS"
],
"start": 24642,
"text": "\nMoreover the transactions in question related to the past period."
}
},
{
"from_name": "label",
"id": "1bebeae9fe584b47adbaaeb34f7fbe0d",
"to_name": "text",
"type": "labels",
"value": {
"end": 24896,
"labels": [
"RATIO"
],
"start": 24708,
"text": "\n Hence the appellants are not entitled to any relief either on the principle of promissory estoppel or on the basis of the earlier notification issued under section 10 of the Act."
}
},
{
"from_name": "label",
"id": "e612922ed82c40c2a7134cb5442e26cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 24981,
"labels": [
"RATIO"
],
"start": 24896,
"text": "\n We agree with the High Court that the appellants had not made out any case."
}
},
{
"from_name": "label",
"id": "60acf2687c2042b39dc057159f71328e",
"to_name": "text",
"type": "labels",
"value": {
"end": 25006,
"labels": [
"RPC"
],
"start": 24982,
"text": "The appeal is dismissed."
}
},
{
"from_name": "label",
"id": "4844fcd25c79481187341a2b477c7973",
"to_name": "text",
"type": "labels",
"value": {
"end": 25253,
"labels": [
"RPC"
],
"start": 25008,
"text": "Before concluding we may refer to a submission made on behalf of the appellants that by virtue of the amendment by Act 103 of 1976 to the Central Sales Tax Act, 1956 by the introduction of section 2(ab) in it they are entitled to certain relief."
}
},
{
"from_name": "label",
"id": "558b5c8514bb4f8995bb59bb7de98609",
"to_name": "text",
"type": "labels",
"value": {
"end": 25342,
"labels": [
"RPC"
],
"start": 25254,
"text": "We have not considered the effect of the said amendment on the transactions in question."
}
},
{
"from_name": "label",
"id": "6a19ec71fc4e4ca38a9e72d7c91039b8",
"to_name": "text",
"type": "labels",
"value": {
"end": 25371,
"labels": [
"RPC"
],
"start": 25343,
"text": "We express no opinion on it."
}
},
{
"from_name": "label",
"id": "4734f49cd2b141f18c1100413b4b2aff",
"to_name": "text",
"type": "labels",
"value": {
"end": 25517,
"labels": [
"RPC"
],
"start": 25372,
"text": "It is open to the appellants to raise the point in the assessment proceedings or in any other proceedings under the Act which may be pending now."
}
},
{
"from_name": "label",
"id": "3ce42d174285430fa3167bbe5833dc45",
"to_name": "text",
"type": "labels",
"value": {
"end": 25554,
"labels": [
"RPC"
],
"start": 25517,
"text": "\n There will be no order as to costs."
}
},
{
"from_name": "label",
"id": "2ab4090ca49f45a8b9ff3523c18514d3",
"to_name": "text",
"type": "labels",
"value": {
"end": 25560,
"labels": [
"RPC"
],
"start": 25554,
"text": "\n S.R."
}
},
{
"from_name": "label",
"id": "3fdeb67a48484c82bbf5c521e65e55cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 25616,
"labels": [
"RPC"
],
"start": 25561,
"text": " Appeal dismissed."
}
}
]
}
] | 1,723 | {
"text": "PETITIONER:\nBAKUL CASHEW CO. & ORS.\n\nVs.\n\nRESPONDENT:\nSALES TAX OFFICER QUILON & ANR.\n\nDATE OF JUDGMENT12/03/1986\n\nBENCH:\nVENKATARAMIAH, E.S. (J)\nBENCH:\nVENKATARAMIAH, E.S. (J)\nTHAKKAR, M.P. (J)\n\nCITATION: 1986 SCR (1) 610\n 1987 AIR 2239 1986 SCALE (1)380\n 1986 SCC (2) 365\n\nACT:\n Promissory estoppel, plea of - Phrases used by\n\nMinisters which cannot form the basis for a plea of\nestoppel, detailed Sales Tax exemption granted\nretrospectively by the State Government by GOMS 127/73/ID\ndated 12.10.1973 withdrawn by a leter GOMS 143/73/ID dated\n9.11.1973 issued under section 10(3) of the Kerala General\nSales Tax Act, 1963 (Kerala Act 15 of 1963) as amended,\nvalidity of - Power of Government to cancel the earlier\nNotification vis-a-vis the right of the cashew Factory\nowners to secure the exemption.\n\nHEADNOTE:\n The appellants are Cashew Processors owning and/or\n\nworking cashew factories wherein nearly about 80 per cent of\nthe raw nuts processed were being imported during the\nrelevant time from African countries. The import of raw nuts\nwere canalised through the Cashew Corporation of India and\nthey were allotted to the appellants and various other\nfactory owners who were engaged in the business of\nprocessing cashewnuts. There was delay in making the\nassessment of sales tax payable by them under section 5 of\nthe Kerala General Sales Tax Act, 1963 during the period\n1970 to 1974 and the Department commenced to make\nassessments in or about the year 1974. The Government in the\nmeantime issued a Notification dated 12.10.73 granting\nexemption to cashew manufacturers for the period between\nSeptember 1, 1970 and September 30, 1973 and had later\ncancelled it by Notification dated 9.11.73, that is within\nthree weeks of the earlier Notification granting exemption.\n\n The appellants filed a writ petition contending: (i)\nthat the Government was precluded by the rule of promissory\nestoppel from claiming the purchase tax in respect of\ncashewnuts imported from African countries; and (ii) that\nthe subsequent withdrawal of the exemption granted on\n12.10.73 was bad. The Writ Petitions having been dismissed,\nthe appellants have come up in appeal by way of special\nleave.\n611\n\n Dismissing the appeal, the Court\n^\n\n HELD : 1.1 The appellants in the instant case, are not\n\n\nentitled to any relief either on the principle of promissory\nestoppel or on the basis of the earlier Notification issued\nunder section 10 of the Kerala General Sales Tax Act, 1963.\n[621 E-F]\n\n 1.2 The whole case of the promissory estoppel lacks the\nnecessary factual foundation. In the instant case, the\nallegations made in the petition do not establish (i) that\nthere was a definite representation by the Government to the\neffect that the Government will not levy the tax; (ii) that\nthe appellants in fact altered their position by acting upon\nsuch representation; and (iii) that they had suffered from\nsome prejudice sufficient to constitute an estoppel. [617 F-\nG]\n\n 1.3 In cases of this nature, the evidence of\nrepresentation should be clear and unambiguous. It \"must be\ncertain to every intent.\" The statements that are made by\nministers at such meetings, such as, \"let us see\", \"we shall\nconsider the question of granting of exemption\nsympathetically\", \"we shall get the matter examined\", \"you\nhave a good case for exemption\" etc. even if true, cannot\nform the basis for a plea of estoppel. The events that have\ntaken place subsequently belie the fact of any such promise\nby the ministers. In fact the Cashew Corporation of India\nhad made a representation to the Government of India on May\n7, 1971 and the Government of India wrote to the State\nGovernment on March 4, 1972 urging that the exemption prayed\nfor by the cashew manufacturers may be favourably considered\nby the Government of Kerala. The Government of Kerala\nhowever rejected the said request. Then on further pressure\nbeing put upon it, it issued the notification dated October\n12, 1973 and immediately thereafter withdraw it after it\nencountered severe public criticism. This conduct on their\npart is not consistent with the appellants' case that they\nhad actually promised in the year 1971 to exempt the cashew\ntrade from payment of the sales tax. [617 C-F]\n\n 2.1 The State Government had the necessary power to\ncancel any Notification earlier issued, which power of\ncancellation has been expressly conferred by section 10 (3)\nof Kerala General Sales Tax Act. The authority which can\nissue a\n612\nNotification may certainly cancel it also. The State\nGovernment did so and cancelled the earlier Notification as\nthere was a public hue and cry that the State Government had\nshown undue favour to the Kerala Cashewnut factory owners at\na time when the State Government was passing through grave\nand difficult financial position. Moreover the transactions\nin question related to the past period. [618 H, 621 D-E]\n\n 2.2 An authority which has the power to make\nsubordinate legislation cannot make it with retrospective\neffect unles it is so authorised by the Legislature which\nhas conferred that power on it. The power of exemption in\nthe instant case was exercised through a retrospective\nNotification which was a piece of subordinate legislation.\nFurther on the date on which the notification was issued the\nKerala Government had no such power under section 10 of the\nAct as it stood then to issue a notification granting\nexemption with retrospective effect. Such power was actually\nconferred on it later on by the Kerala Legislature only by\nway of amendment in 1980 by Kerala Act 19 of 1980. By the\naddition of the words \"either prospectively or\nretrospectively\" in sub-section (1) of section 10 the State\nLegislature has now conferred the necessary power on the\nState Government to grant exemption with retrospective\neffect. This amendment also suggests that earlier the\n\nGovernment had no such power to grant exemption with\nretrospective effect. [619 A-B; 620 B-C; 621 A-C]\n\n Income Tax Officer v. M.C. Ponnoose & Ors., [1970] 1\nS.C.R. 678 referred to.\n\nJUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1725 (NT) of 1977.\n From the Judgment and Order dated 1st December, 1976 of the Kerala High Court in O.P. No. 1740 of 1976.\n P. Govindan Nair, Mrs. A.K. Verma, S. Sukumaran and D.N. Misra for the Appellants.\n T.S. Krishnamurthy Iyer, Karunakaran Nambiar and V.J.\n Francis for the Respondents.\n613 The Judgment of the Court was delivered by VENKATARAMIAH, J. This appeal by special leave is filed against the judgment dated December 1, 1976 in the petition bearing Writ Petition No. O.P. 1740 of 1976 on the file of the Kerala High Court filed by the afore-mentioned 26 appellants and 20 others. They prayed in the Writ Petition inter alia for the issue of a writ in the nature of mandamus to the State Government of Kerala to give effect to the notification issued by the State Government bearing No.\nG.O.MS. 127/73/ID dated October 12, 1973 under section 10 of the Kerala General Sales Tax Act, 1963 (15 of 1963) (hereinafter referred to as 'the Act') by which the State Government had retrospectively granted an exemption in respect of the tax payable under section 5 of the said Act by the cashew manufacturers in that State on the purchase turnover of cashewnuts imported from outside India through the Cashew Corporation of India for the period between September 1, 1970 and September 30, 1973 after quashing the subsequent notification bearing No. G.O.MS. 143/73/TD dated November 9, 1973 issued under section 10(3) of the Act cancelling the above said notification dated October 12, 1973. The appellants and the other persons who had filed the writ petition before the High Court are cashew processors owning and/or working cashew factories wherein nearly about 80 per cent of the raw nuts processed were being imported during the relevant time from African countries. The import of raw nuts was canalised through the Cashew Corporation of India and they were allotted to the appellants and various other factory owners who were engaged in the business of processing cashewnuts. It appears that there was delay in making the assessment of tax payable by them under section 5 of the Act during the periods 1970 to 1974 and the Department commenced to make assessments in or about the year 1974. The Government in the meanwhile had issued the notification dated October 12, 1973 granting exemption to cashew manufacturers for the period between September 1, 1970 and September 30, 1973 and had later on cancelled it by notification dated November 9, 1973 within about three weeks from the date on which the exemption had been granted. It is not necessary to refer to all the allegations made in the writ petition for purposes of this case since the only point urged before us relates to the right of the appellants to secure the exemption as stated in the notification dated October 12, 1973 by virtue of the rule of 614 promissory estoppel. The appellants urged two contentions before the High Court in support of their plea : (i) that the Government was precluded by the rule of promissory estoppel from claiming the purchase tax in respect of cashewnuts imported from African countries and (ii) that the exemption that had been granted on October 12, 1973 could not be withdrawn by the subsequent notification issued on November 9, 1973. In support of first limb of their argument the appellants depended upon the representation which was alleged to have been made on behalf of the Government by the Chief Minister, the Industries Minister and the Revenue Minister at a meeting held on April 25, 1971 and in support of their second contention they depended upon section 10 of the Act. The Government contested the case of the appellants on both these points. The High Court upheld the case of the State Government and rejected the said contentions. It, however, directed the Kerala Sales Tax Appellate Tribunal to make assessments taking into account the other contentions of the assessees. This appeal by special leave is filed against the judgment of the High Court of Kerala in the said writ petition.\n The allegations regarding the plea based on promissory estoppel are found in Paragraphs 10 & 11 of the petition which reads thus :- \"10. When the scheme of canalisation came to be introduced in September, 1970, the members of the cashew industry like the first petitioners were keen that the purchases of raw cashewnuts in the form of allotment from the said Corporation should not be subjected to tax under the said Act as was the case under the open general licence scheme.\n The then Chairman of the said Corporation, Shri M.C. Sarin, as also its Managing Director Shri Z.K. Joseph assured the members of the cashew industry that such purchases would not be exigible to tax under the said Act. In a meeting held on the 25th April 1971 where Shri Z.K. Joseph of the said Corporation was also present the representatives of the industry were assured by the Chief Minister Shri Achuta Menon, the then Industries Minister Shri N.E. Bellaram and the then Revenue Minister Baby John that no tax would be levied under the said Act on the turnover of African raw nuts.\n615 11. Subsequently, for three years, the Respondents did not initiate assessment proceeding against the allottees like the first petitioner and gave the allottees to believe that no tax would be levied on such purchases, relying upon which the allottees have quoted prices for exports and made huge commitments. If such imports were to be regarded as taxable purchases by the respondents, the allottees, like the first petitioner would not have made commitments with the foreign buyers. In fact, as late as 12th October, 1973, a notification was issued by the fourth respondent, a copy of which is hereto annexed and marked Exh.\n 'A' under section 10 of the said Act giving effect to such representations. The said notification was published in Kerala Gazette on 23rd October, 1973, clearly stating that the exemption to such purchases was being accorded on the ground of public interest. Without assigning reasons or showing any change of circumstances, in less than twenty days, another notification was issued on 9th November, 1973, a copy of which is hereto annexed and marked Exh. 'B' withdrawing the said exemption.\"\n In the counter-affidavit filed on behalf of the State Government it is stated in Paragraphs 18 & 19 thus : \"18. The averments in para 11 are denied. The Cashew Corporation of India wrote to the Government by Memorandum dated 3.5.1971 that cashew industry may be exempted from payment of tax under the Kerala General Sales Tax Act on their purchases of imported raw cashewnuts. The Ministry of Foreign Trade also addressed a communication to the State Government dated 4.3.1972 that the matter may be sympathetically considered. The cashew manufacturers and exporters' Associations also moved the Government in this behalf by memorandum dated 6.3.1972. The Government directed the Board of Revenue (Taxes) to submit a report in the matter. The matter was engaging the attention of the Board of Revenue and the State Government from some time. In 616 view of very heavy stakes involved in the matter, the Government had to analyse the entire situation, especially with reference to the very high amount of the Revenue involved. It was reported that the grant of exemption will involved loss of revenue of at least one crore of rupees per annum. After consideration of the matter the State Government decided to reject the request of exemption prayed for. The Cashew Corporation of India and the Government of India were given a reply communicating the decision of the State Government in February, 1973. Thereafter the Kerala State Cashew Development Corporation requested the Govt. to re-examine the decision as the levy of tax would be heavy burden on the industry. The Government passed an order (Ext.A) granting the exemption for the period 1.9.1970 to 30.9.1973. It was resolved then that tax should be levied from 1.10.1973 onwards. There was considerable criticism about the grant of exemption especially in the context of the grave and difficult financial position of the State.\n After mature consideration, by notification dated 9.11.1973 (Ext.B) the earlier Government order dated 12.10.1973 (Ext.A) was cancelled.\n 19. The allottees were not given to believe that no tax would be levied on such purchases............\"\n In the reply affidavit filed on behlaf of the appellants the above allegations made in the counter- affidavit are denied.\n The allegations in the appeal do not contain any information about who was present at the so called meeting, what representation was actually made, whether any of the appellants acted on the basis of the said representation and how he was prejudiced thereby. No material in the form of documents in support of that plea that they altered their price structure relying upon the alleged representation was also produced by the appellants. The appellants were owners of existing factories. None of them is shown to have established any new factory relying on the representation of any of the ministers. They were carrying on the business in their 617 factories already. It is not their case that they would have closed down their factories but for the alleged representation made to them. Nor it is their case that they gave up a more advantageous project and diverted their capital towards the cashewnut factory believing that the Government would grant exemption from payment of tax and had suffered any loss thereby. It is contended that the officer who had filed the counter-affidavit could not have known what transpired at the alleged meeting. The same plea is available against the appellants too. The person who has sworn to the affidavit on behalf of the appellants also does not say that he was present at the meeting or that he had any personal knowledge about what transpired at the meeting.\nHe does not give any material details about what actually transpired there. In cases of this nature the evidence of representation should be clear and unambiguous. It 'must be certain to every intent'. The statements that are made by ministers at such meetings, such as, 'let us see', 'we shall consider the question of granting of exemption sympathetically', 'we shall get the matter examined', 'you have a good case for exemption' etc. even if true, cannot form the basis for a plea of estoppel. Moreover, the events that have taken place subsequently belie the fact of any such promise by the ministers. It is seen that the Cashew Corporation of India had made a representation to the Government of India on May 7, 1971 and the Government of India wrote to the State Government on March 4, 1972 urging that the exemption prayed for by the cashew manufacturers may be favourably considered by the Government of Kerala.\nThe Government of Kerala however rejected the said request.\nThen on further pressure being put upon it, it issued the notification dated October 12, 1973 and immediately thereafter withdrew it after it encountered severe public criticism. This conduct on their part is not consistent with the appellants' case that they had actually promised in the year 1971 to exempt the cashew trade from payment of the tax. The allegations made in the petition do not establish (i) that there was a definite representation by the Government to the effect that the Government will not levy the tax; (ii) that the appellants in fact altered their position by acting upon such representation, and (iii) that they had suffered some prejudice sufficient to constitute an estoppel. Hence the whole case of promissory estoppel lacks the necessary factual foundation. It is, therefore, unnecessary to consider the question of law 618 whether the plea of promissory estoppel can be raised against a legislation which levies tax and whether an assessee can claim exemption from a tax levied by the legislature merely on the basis of a representation of a minister.\n We shall now proceed to consider the plea relating to the power of the Government to cancel the notification issued under section 10(1) of the Act.\n During the relevant period section 10 of the Act read thus : \"10. Power of Government to grant exemption and reduction in rate of tax : (1) The Government may, if they consider it necessary in the public interest, by notification in the Gazette, make an exemption or reduction in rate in respect of any tax payable under this Act : (i) on the sale or purchase of any specified goods or class of goods, at all points or at a specified point or points in the series of sales or purchase by successive dealers, or (ii) by any specified class of person, in regard to the whole or any part of their turnover.\n (2) Any exemption from tax, or reduction in the rate of tax, notified under sub-section (1). - (a) may extend to the whole State or any specified area or areas therein, (b) may be subject to such restrictions and conditions as may be specified in the notification.\n (3) The Government may, by notification in the Gazette, cancel or vary any notification issued under sub-section (1).\"\n As regards the power of Government to cancel the notification which had been issued earlier, the High Court has upheld the power of the Government to do so. We think that the 619 High Court was right in taking that view. The liability to pay sales tax arose at the point of time when the purchases were made. The power of exemption in the instant case was exercised through a retrospective notification which was a piece of subordinate legislation. It has been held by this Court that an authority which has the power to make subordinate legislation cannot make it with retrospective effect unless it is so authorised by the legislature which has conferred that power on it. The law on the above point is neatly summarised in Income Tax Officer v. M.C. Ponnoosse & Ors. [1970] 1 S.C.R. 678 at pages 681-682 thus : \"Now it is open to a soverign legislature to enact laws which have retrospective operation. Even when the Parliament enacts retrospective laws such laws are - in the words of Willes, J. in Phillips v.\n Eyre (40 Law J. Rep (N.S.) Q.B. 28 at p.37) - 'no doubt prima facie of questionable policy and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on upon the faith of the then existing law.' The courts will not, therefore, ascribe retrospectivity to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature. The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by the person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which may in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye- law which can operate with retrospective effect; (see Subba Rao, J. in Dr. Indramani Pyarelal Gupta v. W.R. Nathu & Others 620 (1963 S.C.R. 721) - the majority not having expressed any different opinion on the point; Modi Food Products Ltd. v. Commissioner of Sales Tax U.P. (A.I.R. 1956 All. 35); India Sugar Refineries Ltd. v. State of Mysore (A.I.R. 1960 Mys. 326) and General S. Shivdev Singh & Anr. v. The State of Punjab & Others (1959 P.L.R. 514).\"\n In the instant case on the date on which the notification was issued the Kerala Government had no such power under section 10 of the Act as it stood then to issue a notification granting exemption with retrospective effect.\nSuch power was actually conferred on it later on by the Kerala Legislature only by way of amendment in 1980 by Kerala Act 19 of 1980. Now section 10 of the Act reads thus : \"10. Power of Government to grant exemption and reduction in rate of tax - (1) the Government may, if they consider it necessary in the public interest by notification in the Gazette, make an exemption or reduction in rate, either prospectively or retrospectively in respect of any tax payable under this Act:- (i) On the sale or purchase of any specified goods or class of goods, at all points or at a specified point or points in the series of sales or purchases by successive dealers, or (ii) by any specified class of persons in regard to the whole or any part of the turnover.\n (2) Any exemption from tax, or reduction in the rate of tax, notified under sub-section (1), - (a) may extend to the whole State or to any specified area or areas therein, - (b) may be subject to such restriction and conditions as may be specified in the notification.\n (3) The Government may by notification in the 621 Gazette cancel or vary any notification issued under sub-section (1).\"\n (emphasis added) By the addition of the words 'either prospectively or retrospectively' by the aforesaid amendment, the State Legislature has now conferred the necessary power on the State Government to grant exemption with retrospective effect. This amendment also suggests that earlier the Government had no such power to grant exemption with retrospective effect.\n Hence the impugned notification which granted exemption on October 12, 1973 for the earlier period between September 1, 1970 and September 30, 1973 was ineffective. It was also not shown that relying upon the notification during the period between October 12, 1973 and November 9, 1973 the appellants had done any act which attracted the rule of estoppel. The authority which can issue a notification may cancel it also. Section 10(3) of the Act confers such power of cancellation expressly. The State Government did so and cancelled the earlier notification as there was a public hue and cry that the State Government had shown undue favour of the Kerala cashewnut factory owners at a time when the State was passing through grave and difficult financial position.\nMoreover the transactions in question related to the past period.\n Hence the appellants are not entitled to any relief either on the principle of promissory estoppel or on the basis of the earlier notification issued under section 10 of the Act.\n We agree with the High Court that the appellants had not made out any case. The appeal is dismissed.\n Before concluding we may refer to a submission made on behalf of the appellants that by virtue of the amendment by Act 103 of 1976 to the Central Sales Tax Act, 1956 by the introduction of section 2(ab) in it they are entitled to certain relief. We have not considered the effect of the said amendment on the transactions in question. We express no opinion on it. It is open to the appellants to raise the point in the assessment proceedings or in any other proceedings under the Act which may be pending now.\n There will be no order as to costs.\n S.R. Appeal dismissed.\n 622 "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "0aa977ccb2a24191bb76a22eab3a08c8",
"to_name": null,
"type": null,
"value": {
"end": 1074,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nMOHAMAD AZlZ MOHAMED NASIR\n\nVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA\n\nDATE OF JUDGMENT04/09/1975\n\nBENCH:\nBHAGWATI, P.N.\nBENCH:\nBHAGWATI, P.N.\nBEG, M. HAMEEDULLAH\nSARKARIA, RANJIT SINGH\n\nCITATION: 1976 SCR (3) 663\n 1976 AIR 730\n 1976 SCC (1) 657\n\nACT:\n Probation of offenders Act, 1958-S. 6-Scope of.\n\nHEADNOTE:\n On the question whether the provisions of the Probation\n\nof offenders Act 1958 should have been applied in this case,\n Allowing the appeal,\n\n^\n HELD: (1) Even though the point relating to the\n\napplicability of s.6 was not raised before the Presidency\nMagistrate or the High Court, this Court is bound to take\nnotice of the provisions of that section and give its\nbenefit to the appellant, particularly since it is a section\nwhich is intended for the benefit of juvenile delinquents\nreflecting the anxiety of the Legislature to protect them\nfrom contact or association with hardened criminals in jails\nand retrieve them from a life of crime and rehabilitate them\nis responsible and useful members of society."
}
},
{
"from_name": null,
"id": "6476beef4acd45668033f513466ffc11",
"to_name": null,
"type": null,
"value": {
"end": 1408,
"labels": [
"PREAMBLE"
],
"start": 1075,
"text": "[665 B-C]\n\n (2) Section 6 lays down an injunction not to impose a\nsentence of imprisonment on a reason who is under 21 years\nof' age and is found guilty of having committed an offence\npunishable with imprisonment other the that for if unless it\nis satisfied that it would not be desirable to deal with him\nunder s. 3 or s. 4."
}
},
{
"from_name": null,
"id": "11af3791f77a4d3b810f6daf1462bf69",
"to_name": null,
"type": null,
"value": {
"end": 1666,
"labels": [
"PREAMBLE"
],
"start": 1409,
"text": "'This inhibition on the power of the\ncourt to impose a sentence of imprisonment applies not only\nat the state of trial but also at the stage of \"High, Court\nor any other court when the case comes before it in appeal\nor revision\" s. 11 (i) [664-H]\n\n "
}
},
{
"from_name": null,
"id": "8d8ddce8281b48b2b768fa3e085dabcb",
"to_name": null,
"type": null,
"value": {
"end": 1726,
"labels": [
"PREAMBLE"
],
"start": 1666,
"text": "In the instant case the appellant was below 21 years of\nage."
}
},
{
"from_name": null,
"id": "d32e741bfe25455dad6c2c25022f4048",
"to_name": null,
"type": null,
"value": {
"end": 1830,
"labels": [
"PREAMBLE"
],
"start": 1727,
"text": "The appellant was at one time a well known child film\nactor and won several awards for acting in films."
}
},
{
"from_name": null,
"id": "1d244aa11dc54cf990722b45423b0cd8",
"to_name": null,
"type": null,
"value": {
"end": 1889,
"labels": [
"PREAMBLE"
],
"start": 1830,
"text": "\nSubsequently he fell in bad company and took to evil ways."
}
},
{
"from_name": null,
"id": "9afa4b427b204d98b12959f7fa38150e",
"to_name": null,
"type": null,
"value": {
"end": 2007,
"labels": [
"PREAMBLE"
],
"start": 1890,
"text": "The offence of theft of two Sarees, though it could not be\nlightly ignored. was of minor. character and this was the\n"
}
},
{
"from_name": null,
"id": "eb43f4e2ee4d4e0a94f8a3dc641d3757",
"to_name": null,
"type": null,
"value": {
"end": 2037,
"labels": [
"PREAMBLE"
],
"start": 2007,
"text": "first offence of the appellant"
}
},
{
"from_name": null,
"id": "361c378d6b0949eebe0c6e8b1bc9f1b7",
"to_name": null,
"type": null,
"value": {
"end": 2144,
"labels": [
"PREAMBLE"
],
"start": 2037,
"text": ". It Count be said that it\nwould not be desirable to deal with the appellant under s. 3\nor s. 4 of the Act."
}
},
{
"from_name": null,
"id": "777d967c021d481ca5dcc41d4203caa5",
"to_name": null,
"type": null,
"value": {
"end": 2153,
"labels": [
"PREAMBLE"
],
"start": 2145,
"text": "[665 G-H"
}
},
{
"from_name": null,
"id": "09e8f9cfa12c406c8b7adfaabea73d66",
"to_name": null,
"type": null,
"value": {
"end": 2165,
"labels": [
"PREAMBLE"
],
"start": 2153,
"text": "]\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "22b4a286f6a84353b7a16b51d6d3791c",
"to_name": null,
"type": null,
"value": {
"end": 2199,
"labels": [
"NONE"
],
"start": 2165,
"text": "\n CRIMINAL APPELLATE JURISDICTION:"
}
},
{
"from_name": null,
"id": "3ccbda0f2e524f2aabc819361a7adad4",
"to_name": null,
"type": null,
"value": {
"end": 2233,
"labels": [
"NONE"
],
"start": 2200,
"text": "Criminal Appeal No.\n129 of 1971 ."
}
},
{
"from_name": null,
"id": "5f6eafbab0f847f381f49f4e6a7eedaf",
"to_name": null,
"type": null,
"value": {
"end": 2384,
"labels": [
"NONE"
],
"start": 2233,
"text": "\n Appeal by Special Leave from the Judgment and order dated the 4th March, 1971 of the Bombay High Court at Bombay in Criminal Appeal No. 1502 of 1969."
}
},
{
"from_name": null,
"id": "953a040b81224df38ca6eb5d5ddde9b1",
"to_name": null,
"type": null,
"value": {
"end": 2436,
"labels": [
"NONE"
],
"start": 2384,
"text": "\n R B. Datar and Rajen Yash Paul, for the Appellant."
}
},
{
"from_name": null,
"id": "664742c006694470895d64f50d2ef139",
"to_name": null,
"type": null,
"value": {
"end": 2478,
"labels": [
"NONE"
],
"start": 2436,
"text": "\n M. N Shroff, for the Respondent."
}
},
{
"from_name": null,
"id": "e2486a75696d4f74840aaea2275eb714",
"to_name": null,
"type": null,
"value": {
"end": 2544,
"labels": [
"NONE"
],
"start": 2478,
"text": "\n The Judgment of the Court was delivered by- BHAGWATI, J."
}
},
{
"from_name": null,
"id": "45b58e24b563408991a7cedad849e155",
"to_name": null,
"type": null,
"value": {
"end": 2798,
"labels": [
"FAC"
],
"start": 2545,
"text": "The appellant and one Mohd. Yusuf Gulam Mohd. were charged for an offence under s. 379 read with s 34 of the Indian Penal Code for snatching two sarees from one Govind whilst he was carrying them from the show of his master to that of a washer and dyer."
}
},
{
"from_name": null,
"id": "534d474acc3f48ee99256097dc336398",
"to_name": null,
"type": null,
"value": {
"end": 3065,
"labels": [
"RLC"
],
"start": 2799,
"text": "The learned Presidency Magistrate, who tried the case, accepted the prosecution evidence and found the appellant and Mohd. Yusuf Gulam Mohd.\nguilty of the offence under s. 379 read with s. 34 andSentenced each of their to suffer rigorous imprisonment for six months."
}
},
{
"from_name": null,
"id": "bf592d6d8a614241a0e3fc45bc78c235",
"to_name": null,
"type": null,
"value": {
"end": 3301,
"labels": [
"FAC"
],
"start": 3066,
"text": "It does not appear from the judgment of the learned Presidency Magistrate that, though the appellant was only seventeen years and three months old at the date of the offence and the offence was not punishable with imprisonment for life"
}
},
{
"from_name": null,
"id": "a9cae76f9c21453d9b8b09b8b644d4cc",
"to_name": null,
"type": null,
"value": {
"end": 3432,
"labels": [
"FAC"
],
"start": 3301,
"text": ", the attention of the learned presidency Magistrate was invited to the provisions of s. 6 of the Probation of offenders Act, 1958."
}
},
{
"from_name": null,
"id": "0e475f6ad6444407ad44d7820edaafc6",
"to_name": null,
"type": null,
"value": {
"end": 3574,
"labels": [
"FAC"
],
"start": 3433,
"text": "The appellant preferred an appeal against the order of conviction and sentence to the High Court of p Bombay but the appeal was unsuccessful."
}
},
{
"from_name": null,
"id": "974952a5a4ea4ddbbe2f375e192d0ef2",
"to_name": null,
"type": null,
"value": {
"end": 3737,
"labels": [
"RLC"
],
"start": 3575,
"text": "The High Court took the same view of the evidence as the learned Presidency Magistrate and confirmed the conviction of the appellant under s. 379 read with s. 34."
}
},
{
"from_name": null,
"id": "fb7e4dd116d744d2a8dc09d70ad56baf",
"to_name": null,
"type": null,
"value": {
"end": 3974,
"labels": [
"FAC"
],
"start": 3738,
"text": "So far as the question of sentence was concerned, a submission was made on behalf of the appellant that since he was a young boy of about seventeen years and three months and this was his first offence, leniency should be shown tow him."
}
},
{
"from_name": null,
"id": "263992b726b542438bbf3e0475fef6e1",
"to_name": null,
"type": null,
"value": {
"end": 4294,
"labels": [
"RLC"
],
"start": 3975,
"text": "But the High Court r observed that age alone was not sufficient to invoke the mercy of the Court and the appellant had not done anything since the date of the offence to deserve the mercy of the Court and it did not, therefore, see any reason to interfere with the sentence of imprisonment passed against the appellant."
}
},
{
"from_name": null,
"id": "1b95e4d8e6284e8ba71e248f63692335",
"to_name": null,
"type": null,
"value": {
"end": 4559,
"labels": [
"FAC"
],
"start": 4295,
"text": "It appears that once again the provisions of s. 6 of the Probation of offenders Act, 1958 were not specifically brought to the notice of the High Court and the sentence of imprisonment was maintained by the High Court without applying its mind to those provisions."
}
},
{
"from_name": null,
"id": "5e7c5015905e4935bbaa55aca5d66a27",
"to_name": null,
"type": null,
"value": {
"end": 4808,
"labels": [
"FAC"
],
"start": 4560,
"text": "Hence the appellant preferred a petition for special leave to this Court and on that petition, this Court granted special leave limited to the question \"whether the provisions of the Probation of offenders Act should have been applied in the case\"."
}
},
{
"from_name": null,
"id": "4c02847d94c94fa8b3b6f08cd4a6889e",
"to_name": null,
"type": null,
"value": {
"end": 5012,
"labels": [
"ANALYSIS"
],
"start": 4818,
"text": "We are concerned in this appeal with s. 6 of the Probation of offenders Act, 1958, for it is only under that section that the appellant claims the benefit of the provisions contained in the Act."
}
},
{
"from_name": null,
"id": "84373953c69f46908e5a9074ec6b7056",
"to_name": null,
"type": null,
"value": {
"end": 5562,
"labels": [
"STA"
],
"start": 5013,
"text": "Subsection (1) of s. 6, on a plain grammatical reading of its language, provides that when any person under twenty-one years age is found guilty of having committed an offence punishable with imprisonment, but not with imprisonment for life, the Court, by which the person is found guilty, shall not impose any sentence of imprisonment, unless it is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the offender it would not be desirable to deal with himhim under s. 3 or s. 4."
}
},
{
"from_name": null,
"id": "15c045ecf096484597655fc95c8eb369",
"to_name": null,
"type": null,
"value": {
"end": 5797,
"labels": [
"ANALYSIS"
],
"start": 5563,
"text": "This inhibition on the power of the Court to impose a sentence of imprisonment applies not only at the state of trial court but also at the stage \"High court or any other Court when the case comes before it on appeal or in revision.'."
}
},
{
"from_name": null,
"id": "5f69b7e3e09a4256a2465781380d6243",
"to_name": null,
"type": null,
"value": {
"end": 5832,
"labels": [
"ANALYSIS"
],
"start": 5798,
"text": "Vide s. 11, sub-s. (1) of the Act."
}
},
{
"from_name": null,
"id": "25d0cfc94b734d52b9b1d5ae3656762f",
"to_name": null,
"type": null,
"value": {
"end": 6426,
"labels": [
"ANALYSIS"
],
"start": 5832,
"text": "\nIt is, therefore, obvious that even though the point relating to the applicability of s. 6 was not raised before the learned Presidency Magistrate or the High Court, this Court is bound to take notice of the provisions of that section and give its benefit to the appellant, particularly since it is a section which is intended for the benefit of juvenile delinquents, reflecting the anxiety of the Legislature to protect them from contact or association with hardened criminals in jails and retrieve them from a life of crime and rehabilitate them as responsible and useful members of society."
}
},
{
"from_name": null,
"id": "d7e29160ce834d08b3b62deb64394958",
"to_name": null,
"type": null,
"value": {
"end": 6722,
"labels": [
"ANALYSIS"
],
"start": 6426,
"text": "\n Here, we find that whatever date be taken as the relevant date for determining the applicability of s. 6- whether the date of the offence or the date of the judgment of the learned Presidency Magistrate or the date of the judgment of the High Court-the appellant was below twenty one years age."
}
},
{
"from_name": null,
"id": "f05cf17ba95244e3895005739c8007dc",
"to_name": null,
"type": null,
"value": {
"end": 6899,
"labels": [
"ANALYSIS"
],
"start": 6723,
"text": "The offence of which he is found guilty is an offence under s. 379 read with s. 34 and it is clearly an offence punishable with imprisonment but not with imprisonment for life."
}
},
{
"from_name": null,
"id": "4364741fce534ee79f4394e0b12ca53a",
"to_name": null,
"type": null,
"value": {
"end": 7324,
"labels": [
"ANALYSIS"
],
"start": 6900,
"text": "The conditions requisite for the applicability of s. 6 are, therefore, plainly satisfied and under s. 6, Sub-s. (1) it is not competent to the Court to impose ant sentence of imprisonment on the appellant, unless the Court is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the appellant, it would not be desirable to deal with him under s. 3 or s. 4."
}
},
{
"from_name": null,
"id": "50589931d9f5407d950c62ae7b7e10d1",
"to_name": null,
"type": null,
"value": {
"end": 7864,
"labels": [
"ANALYSIS"
],
"start": 7325,
"text": "It is true that sub-s. (2) of s. 6 requires that for the purpose of satisfying itself whether it would not be desirable to deal with the appellant under s. 3 or s. 4, the Court is required to call for a report from the Probation officer and consider the report, if any, but we do not think it necessary in the present case to call for any report from the Probation officer nor to remand the case to the learned Presidency Magistrate for passing an appropriate order after calling for a report from the Probation officer and considering it."
}
},
{
"from_name": null,
"id": "a69be736d701498891b4341393aa3e6d",
"to_name": null,
"type": null,
"value": {
"end": 7945,
"labels": [
"ANALYSIS"
],
"start": 7864,
"text": "\nWe have on record the antecedent history giving the background of the appellant."
}
},
{
"from_name": null,
"id": "16073aafd15c494397ee13d5aa954b55",
"to_name": null,
"type": null,
"value": {
"end": 8061,
"labels": [
"ANALYSIS"
],
"start": 7946,
"text": "The appellant was at one time a well known child film actor and he actually won several awards for acting in films."
}
},
{
"from_name": null,
"id": "ec44cb2b680146b58ddc5b057b2fd668",
"to_name": null,
"type": null,
"value": {
"end": 8147,
"labels": [
"ANALYSIS"
],
"start": 8062,
"text": "It appears that at some subsequent stage he fell in bad company and took to evil ways"
}
},
{
"from_name": null,
"id": "ef4ed4396ab94fb782d0a2079893079b",
"to_name": null,
"type": null,
"value": {
"end": 8411,
"labels": [
"RATIO"
],
"start": 8148,
"text": "The offence which he is convicted is, no doubt, an offence as theft which cannot be lightly ignored, but it is comparatively of a minor characters in that only two sarees were snatched away from the hands of Govind, perhaps under the stress of economic necessity."
}
},
{
"from_name": null,
"id": "ca3682e2e4a6463285e43898c34e76f6",
"to_name": null,
"type": null,
"value": {
"end": 8463,
"labels": [
"RATIO"
],
"start": 8412,
"text": "Moreover, this is a false offence of the appellant."
}
},
{
"from_name": null,
"id": "1db2d3cead184c6bb3063de172a646d1",
"to_name": null,
"type": null,
"value": {
"end": 8685,
"labels": [
"RATIO"
],
"start": 8464,
"text": "We are, therefore, not at all satisfied 12-L925SupCI/75that it would not be desirable to deal with the appellant under s. 3 or s. 4 and consequently, the sentence of imprisonment passed on the appellant must be set aside."
}
},
{
"from_name": null,
"id": "8e3db96e1308428e92cab0ee724ca74c",
"to_name": null,
"type": null,
"value": {
"end": 9061,
"labels": [
"RPC"
],
"start": 8685,
"text": "\n We accordingly set aside the sentence of imprisonment passed on the appellant and direct that he be released on his entering into a bond wit one surety in the sum of Rs.\n500/ to appear in the Court of the Presidency Magistrate to receive sentence, whenever called upon to do so within a period of six months and during that period to keep the peace and be of good behaviour."
}
},
{
"from_name": null,
"id": "c9ebb9fe0c6d44199322a147fbd02bf2",
"to_name": null,
"type": null,
"value": {
"end": 9218,
"labels": [
"RPC"
],
"start": 9062,
"text": "The learned Presidency Magistrate is directed to take the necessary bond from the appellant and the necessary surety bond from a surety to his satisfaction."
}
},
{
"from_name": null,
"id": "3864aae5896d4ccba11ec13154d15b09",
"to_name": null,
"type": null,
"value": {
"end": 9353,
"labels": [
"RPC"
],
"start": 9219,
"text": "The appellant will continue on bail till such time as these directions are carried out, after which the bail bond will stand canceled."
}
},
{
"from_name": null,
"id": "ef8f98ad40c242dda248cbf974b442b6",
"to_name": null,
"type": null,
"value": {
"end": 9361,
"labels": [
"RPC"
],
"start": 9353,
"text": "\n P.B.R."
}
},
{
"from_name": null,
"id": "305339bd04ac4043a9a8ee606b15cfde",
"to_name": null,
"type": null,
"value": {
"end": 9402,
"labels": [
"RPC"
],
"start": 9362,
"text": " Appeal allowed."
}
}
]
}
] | 4,075 | {
"text": "PETITIONER:\nMOHAMAD AZlZ MOHAMED NASIR\n\nVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA\n\nDATE OF JUDGMENT04/09/1975\n\nBENCH:\nBHAGWATI, P.N.\nBENCH:\nBHAGWATI, P.N.\nBEG, M. HAMEEDULLAH\nSARKARIA, RANJIT SINGH\n\nCITATION: 1976 SCR (3) 663\n 1976 AIR 730\n 1976 SCC (1) 657\n\nACT:\n Probation of offenders Act, 1958-S. 6-Scope of.\n\nHEADNOTE:\n On the question whether the provisions of the Probation\n\nof offenders Act 1958 should have been applied in this case,\n Allowing the appeal,\n\n^\n HELD: (1) Even though the point relating to the\n\napplicability of s.6 was not raised before the Presidency\nMagistrate or the High Court, this Court is bound to take\nnotice of the provisions of that section and give its\nbenefit to the appellant, particularly since it is a section\nwhich is intended for the benefit of juvenile delinquents\nreflecting the anxiety of the Legislature to protect them\nfrom contact or association with hardened criminals in jails\nand retrieve them from a life of crime and rehabilitate them\nis responsible and useful members of society. [665 B-C]\n\n (2) Section 6 lays down an injunction not to impose a\nsentence of imprisonment on a reason who is under 21 years\nof' age and is found guilty of having committed an offence\npunishable with imprisonment other the that for if unless it\nis satisfied that it would not be desirable to deal with him\nunder s. 3 or s. 4. 'This inhibition on the power of the\ncourt to impose a sentence of imprisonment applies not only\nat the state of trial but also at the stage of \"High, Court\nor any other court when the case comes before it in appeal\nor revision\" s. 11 (i) [664-H]\n\n In the instant case the appellant was below 21 years of\nage. The appellant was at one time a well known child film\nactor and won several awards for acting in films.\nSubsequently he fell in bad company and took to evil ways.\nThe offence of theft of two Sarees, though it could not be\nlightly ignored. was of minor. character and this was the\nfirst offence of the appellant. It Count be said that it\nwould not be desirable to deal with the appellant under s. 3\nor s. 4 of the Act. [665 G-H]\n\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.\n129 of 1971 .\n Appeal by Special Leave from the Judgment and order dated the 4th March, 1971 of the Bombay High Court at Bombay in Criminal Appeal No. 1502 of 1969.\n R B. Datar and Rajen Yash Paul, for the Appellant.\n M. N Shroff, for the Respondent.\n The Judgment of the Court was delivered by- BHAGWATI, J. The appellant and one Mohd. Yusuf Gulam Mohd. were charged for an offence under s. 379 read with s 34 of the Indian Penal Code for snatching two sarees from one Govind whilst he was carrying them from the show of his master to that of a washer and dyer. The learned Presidency Magistrate, who tried the case, accepted the prosecution evidence and found the appellant and Mohd. Yusuf Gulam Mohd.\nguilty of the offence under s. 379 read with s. 34 andSentenced each of their to suffer rigorous imprisonment for six months. It does not appear from the judgment of the learned Presidency Magistrate that, though the appellant was only seventeen years and three months old at the date of the offence and the offence was not punishable with imprisonment for life, the attention of the learned presidency Magistrate was invited to the provisions of s. 6 of the Probation of offenders Act, 1958. The appellant preferred an appeal against the order of conviction and sentence to the High Court of p Bombay but the appeal was unsuccessful. The High Court took the same view of the evidence as the learned Presidency Magistrate and confirmed the conviction of the appellant under s. 379 read with s. 34. So far as the question of sentence was concerned, a submission was made on behalf of the appellant that since he was a young boy of about seventeen years and three months and this was his first offence, leniency should be shown tow him. But the High Court r observed that age alone was not sufficient to invoke the mercy of the Court and the appellant had not done anything since the date of the offence to deserve the mercy of the Court and it did not, therefore, see any reason to interfere with the sentence of imprisonment passed against the appellant. It appears that once again the provisions of s. 6 of the Probation of offenders Act, 1958 were not specifically brought to the notice of the High Court and the sentence of imprisonment was maintained by the High Court without applying its mind to those provisions. Hence the appellant preferred a petition for special leave to this Court and on that petition, this Court granted special leave limited to the question \"whether the provisions of the Probation of offenders Act should have been applied in the case\".\n We are concerned in this appeal with s. 6 of the Probation of offenders Act, 1958, for it is only under that section that the appellant claims the benefit of the provisions contained in the Act. Subsection (1) of s. 6, on a plain grammatical reading of its language, provides that when any person under twenty-one years age is found guilty of having committed an offence punishable with imprisonment, but not with imprisonment for life, the Court, by which the person is found guilty, shall not impose any sentence of imprisonment, unless it is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the offender it would not be desirable to deal with himhim under s. 3 or s. 4. This inhibition on the power of the Court to impose a sentence of imprisonment applies not only at the state of trial court but also at the stage \"High court or any other Court when the case comes before it on appeal or in revision.'. Vide s. 11, sub-s. (1) of the Act.\nIt is, therefore, obvious that even though the point relating to the applicability of s. 6 was not raised before the learned Presidency Magistrate or the High Court, this Court is bound to take notice of the provisions of that section and give its benefit to the appellant, particularly since it is a section which is intended for the benefit of juvenile delinquents, reflecting the anxiety of the Legislature to protect them from contact or association with hardened criminals in jails and retrieve them from a life of crime and rehabilitate them as responsible and useful members of society.\n Here, we find that whatever date be taken as the relevant date for determining the applicability of s. 6- whether the date of the offence or the date of the judgment of the learned Presidency Magistrate or the date of the judgment of the High Court-the appellant was below twenty one years age. The offence of which he is found guilty is an offence under s. 379 read with s. 34 and it is clearly an offence punishable with imprisonment but not with imprisonment for life. The conditions requisite for the applicability of s. 6 are, therefore, plainly satisfied and under s. 6, Sub-s. (1) it is not competent to the Court to impose ant sentence of imprisonment on the appellant, unless the Court is satisfied that, having regard to the circumstances of the case, including the nature of the offence and the character of the appellant, it would not be desirable to deal with him under s. 3 or s. 4. It is true that sub-s. (2) of s. 6 requires that for the purpose of satisfying itself whether it would not be desirable to deal with the appellant under s. 3 or s. 4, the Court is required to call for a report from the Probation officer and consider the report, if any, but we do not think it necessary in the present case to call for any report from the Probation officer nor to remand the case to the learned Presidency Magistrate for passing an appropriate order after calling for a report from the Probation officer and considering it.\nWe have on record the antecedent history giving the background of the appellant. The appellant was at one time a well known child film actor and he actually won several awards for acting in films. It appears that at some subsequent stage he fell in bad company and took to evil ways The offence which he is convicted is, no doubt, an offence as theft which cannot be lightly ignored, but it is comparatively of a minor characters in that only two sarees were snatched away from the hands of Govind, perhaps under the stress of economic necessity. Moreover, this is a false offence of the appellant. We are, therefore, not at all satisfied 12-L925SupCI/75that it would not be desirable to deal with the appellant under s. 3 or s. 4 and consequently, the sentence of imprisonment passed on the appellant must be set aside.\n We accordingly set aside the sentence of imprisonment passed on the appellant and direct that he be released on his entering into a bond wit one surety in the sum of Rs.\n500/ to appear in the Court of the Presidency Magistrate to receive sentence, whenever called upon to do so within a period of six months and during that period to keep the peace and be of good behaviour. The learned Presidency Magistrate is directed to take the necessary bond from the appellant and the necessary surety bond from a surety to his satisfaction. The appellant will continue on bail till such time as these directions are carried out, after which the bail bond will stand canceled.\n P.B.R. Appeal allowed.\n "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "d30698f888bd41c5961daa177de51083",
"to_name": null,
"type": null,
"value": {
"end": 56,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": " 1/14"
}
},
{
"from_name": null,
"id": "f5ca23556733485682d7effc7be306a8",
"to_name": null,
"type": null,
"value": {
"end": 145,
"labels": [
"PREAMBLE"
],
"start": 58,
"text": "IN THE HIGH COURT OF KARNATAKA, BENGALURU\n\n DATED THIS THE 04th DAY OF JULY 2018"
}
},
{
"from_name": null,
"id": "253ff8ab8ab94f148481832a75a2861a",
"to_name": null,
"type": null,
"value": {
"end": 524,
"labels": [
"PREAMBLE"
],
"start": 145,
"text": "\n\n PRESENT\n\n THE HON'BLE Dr.JUSTICE VINEET KOTHARI\n\n AND\n\n THE HON'BLE Mrs.JUSTICE S.SUJATHA\n\n I.T.A.No.597/2017\n\nBETWEEN:\n\n1. THE PR. COMMISSIONER OF INCOME-TAX, CIT(A)\n 5TH FLOOR, BMTC BUILDING\n 80 FEET ROAD, KORMANGALA\n BENGALURU-560 095.\n\n2."
}
},
{
"from_name": null,
"id": "656abbb194284fa7973aec49da536c30",
"to_name": null,
"type": null,
"value": {
"end": 740,
"labels": [
"PREAMBLE"
],
"start": 525,
"text": "THE INCOME-TAX OFFICER\n WARD-1(1)(1), 2ND FLOOR\n BMTC BUILDING, 80 FEET ROAD\n KORMANGALA, BENGALURU-560 095.\n ...APPELLANTS"
}
},
{
"from_name": null,
"id": "4426a61f5f5f46f3b525e32efaf3ea06",
"to_name": null,
"type": null,
"value": {
"end": 768,
"labels": [
"PREAMBLE"
],
"start": 742,
"text": "(By Mr. ARAVIND K.V. ADV.)"
}
},
{
"from_name": null,
"id": "6a6b4870511c4ec0a47cc717916cedb6",
"to_name": null,
"type": null,
"value": {
"end": 1281,
"labels": [
"PREAMBLE"
],
"start": 770,
"text": "AND:\n\nM/S. COMMSCOPE NETWORKS (INDIA) PVT. LTD.,\nEARLIER KNOWN AS AIRVANA NETWORKS\n(INDIA) PVT. LTD.,\nSALARPURIA SOFTZONE, BLK A\nWING B, 1ST FLOOR, BELLANDUR\nVILLAGE VARTHUR HOBLI\nOUTER RING ROAD, BENGALURU-560 013\nPAN: AAECA 7568G.\n\n ...RESPONDENT\n(By Ms. TANMAYEE RAJKUMAR, ADV.)\n\n Vs. M/s. Commscope Networks (India) Pvt. Ltd.,\n 2/14\n\n "
}
},
{
"from_name": null,
"id": "a90223a14fe746f482c78c1b24723350",
"to_name": null,
"type": null,
"value": {
"end": 1413,
"labels": [
"PREAMBLE"
],
"start": 1281,
"text": "THIS I.T.A IS FILED UNDER SECTION 260-A OF INCOME\nTAX ACT, 1961, PRAYING TO FORMULATE THE SUBSTANTIAL\nQUESTIONS OF LAW STATED ABOVE."
}
},
{
"from_name": null,
"id": "30b7feb2e66f4c5db027a9b4eaaf1618",
"to_name": null,
"type": null,
"value": {
"end": 1831,
"labels": [
"PREAMBLE"
],
"start": 1414,
"text": "ALLOW THE APPEAL AND\nSET ASIDE THE ORDERS PASSED BY THE INCOME TAX\nAPPELLATE TRIBUNAL, BENGALURU IN IT(TP)A\nNo.181/Bang/2016 DATED 22/02/2017 ANNEXURE-D AND\nCONFIRMING THE ORDER OF THE DRP CONFIRM THE ORDER\nPASSED BY THE INCOME TAX OFFICER, WARD-1(1)(1),\nBENGALURU & ETC.\n\n THIS I.T.A. COMING ON FOR ADMISSION, THIS DAY\nDr. VINEET KOTHARI J. DELIVERED THE FOLLOWING:-\n\n JUDGMENT"
}
},
{
"from_name": null,
"id": "fb66f0ec336b425984f8784180cf9ef7",
"to_name": null,
"type": null,
"value": {
"end": 1935,
"labels": [
"NONE"
],
"start": 1833,
"text": "Mr. Aravind K.V. Adv. for Appellants- Revenue Ms. Tanmayee Rajkumar, Adv. for Respondent - Assessee 1."
}
},
{
"from_name": null,
"id": "0217c5032b314b5ea36e73f86eda7a96",
"to_name": null,
"type": null,
"value": {
"end": 2284,
"labels": [
"FAC"
],
"start": 1936,
"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, Bangalore Bench `C', Bangalore, dated 22.02.2017 passed in IT(TP)A No.166/Bang/2016 (M/s.Commscope Networks (India) Pvt. Ltd., vs. The Income Tax Officer) for A.Y.2011-12."
}
},
{
"from_name": null,
"id": "9fcb161a63424f88a26cfc41c471cfd1",
"to_name": null,
"type": null,
"value": {
"end": 2486,
"labels": [
"ISSUE"
],
"start": 2286,
"text": "2. The proposed substantial questions of law framed in the Memorandum of appeal by the Vs. M/s. Commscope Networks (India) Pvt. Ltd., 3/14 Appellants-Revenue are quoted below for ready reference:- \"1."
}
},
{
"from_name": null,
"id": "a9b4ba6b3af942d8921207c77800fb1c",
"to_name": null,
"type": null,
"value": {
"end": 2977,
"labels": [
"ISSUE"
],
"start": 2487,
"text": "Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the expenses and foreign exchange loss reduced from the Export Turnover has to be reduced from the Total Turnover also following the ratio laid down by this Hon'ble Court in the case of CIT Vs. M/s. Tata Elxsi Ltd even when said decision has been challenged before Apex Court by Revenue and no provision under section 10A provides for exclusion of such expenses from total turnover?\n 2."
}
},
{
"from_name": null,
"id": "760036b77a4545f58496a776501ce627",
"to_name": null,
"type": null,
"value": {
"end": 3327,
"labels": [
"ISSUE"
],
"start": 2978,
"text": "Whether on the facts and in the circumstances of the case, the Tribunal is right in law in excluding certain comparable from list of comparable adopted by TPO on the ground of functional dissimilarity by following its earlier which has not reached finality even when said decisions have not reached finality and all the requires tests are satisfied?"
}
},
{
"from_name": null,
"id": "0ce39cda233841e1ba68c62266982203",
"to_name": null,
"type": null,
"value": {
"end": 3577,
"labels": [
"ISSUE"
],
"start": 3329,
"text": "3. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in excluding comparable even when the said Vs. M/s. Commscope Networks (India) Pvt. Ltd., 4/14 comparable are chosen as all the required tests are satisfied?"
}
},
{
"from_name": null,
"id": "35ddf96906ff4d3681608d8b4ce2ba9d",
"to_name": null,
"type": null,
"value": {
"end": 3923,
"labels": [
"ISSUE"
],
"start": 3579,
"text": "4. Whether on the facts and in the circumstances of the case, it is submitted that Tribunal is right in law in directing the assessing authority to consider exchange fluctuation gain even when the assessee had failed to furnish details to ascertain whether exchange fluctuation gain relates to current year's turnover or earlier years turnover?"
}
},
{
"from_name": null,
"id": "9d24950c46594f6197680d6245a1c7bb",
"to_name": null,
"type": null,
"value": {
"end": 4231,
"labels": [
"ISSUE"
],
"start": 3925,
"text": "5. Whether on the facts and in the circumstances of the case, the Tribunal has also erred in excluding comparable's on the basis of RPT filter being less than 25% by following its earlier decision which has reached finality not even when the comparable's are chosen as all the required tests are satisfied?"
}
},
{
"from_name": null,
"id": "4c03bc5b85b44a4bb2da6d74c35d1566",
"to_name": null,
"type": null,
"value": {
"end": 4436,
"labels": [
"ISSUE"
],
"start": 4233,
"text": "6. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in excluding comparable namely, M/s.\nAccropetal Technology Ltd by following its earlier decision in case of M/s."
}
},
{
"from_name": null,
"id": "6ff973f67bd34b4495ae2018f48425b7",
"to_name": null,
"type": null,
"value": {
"end": 4562,
"labels": [
"ISSUE"
],
"start": 4437,
"text": "Applied Materials India Ltd even the said comparable satisfies the filter of information technology revenue applied by TPO?\"."
}
},
{
"from_name": null,
"id": "08a883a38c08442996e05e77bc220187",
"to_name": null,
"type": null,
"value": {
"end": 4572,
"labels": [
"ISSUE"
],
"start": 4564,
"text": "Vs. M/s."
}
},
{
"from_name": null,
"id": "cc6839a921fc414cadbf83c4be10d3b4",
"to_name": null,
"type": null,
"value": {
"end": 4618,
"labels": [
"ISSUE"
],
"start": 4573,
"text": "Commscope Networks (India) Pvt. Ltd., 5/14 3."
}
},
{
"from_name": null,
"id": "4ee0888a274b48e8ac2653b214b0f2e9",
"to_name": null,
"type": null,
"value": {
"end": 5359,
"labels": [
"ARG_PETITIONER"
],
"start": 4619,
"text": "Learned counsel for the Appellants-Revenue Mr.K.V.Aravind submits that he does not press the substantial question of law No.1, as the issue regarding deduction of expenditure incurred for `Export Turn Over' is also required to be deducted from `Total Turn Over' for the purpose of computing the deduction u/s.10A of the Act, the controversy is no longer res integra and is covered by the decision of the Division Bench of this Court in the case of M/s.Tata Elxsi Ltd., vs. Asst.Commissioner of Income Tax, decided on 20.10.2015 since reported in (2015) 127 DTR 0327 (Kar), which has been affirmed by the Hon'ble Supreme Court in the case of Commissioner of Income-tax, Central III vs. HCL Technologies Ltd., [2018] 93 Taxmann.com 33(SC).\n "
}
},
{
"from_name": null,
"id": "073429d3fdb84451add93a32af32f1ff",
"to_name": null,
"type": null,
"value": {
"end": 5565,
"labels": [
"ARG_PETITIONER"
],
"start": 5359,
"text": "The relevant portion of the judgment of the Hon'ble Supreme Court in the case of HCL Technologies Ltd. (supra), is quoted below for ready reference:- Vs. M/s. Commscope Networks (India) Pvt. Ltd., 6/14 \"17."
}
},
{
"from_name": null,
"id": "88c863606d27496f86aa2ff47a9da093",
"to_name": null,
"type": null,
"value": {
"end": 5680,
"labels": [
"ARG_PETITIONER"
],
"start": 5566,
"text": "The similar nature of controversy, akin this case, arose before the Karnataka High Court in CIT v. Tata Elxsi Ltd."
}
},
{
"from_name": null,
"id": "e3ad870cddcd44959b15ee5cc4d78729",
"to_name": null,
"type": null,
"value": {
"end": 5732,
"labels": [
"ARG_PETITIONER"
],
"start": 5681,
"text": "[2012] 204 Taxman 321/17/taxman.com 100/349 ITR 98."
}
},
{
"from_name": null,
"id": "d94fd1582fd24434bffa5e242ed841fd",
"to_name": null,
"type": null,
"value": {
"end": 6013,
"labels": [
"ARG_PETITIONER"
],
"start": 5733,
"text": "The issue before the Karnataka High Court was whether the Tribunal was correct in holding that while computing relief under Section 10A of the IT Act, the amount of communication expenses should be excluded from the total turnover if the same are reduced from the export turnover?"
}
},
{
"from_name": null,
"id": "3a906e73ec0840faac589a6ca0b93c05",
"to_name": null,
"type": null,
"value": {
"end": 6284,
"labels": [
"ARG_PETITIONER"
],
"start": 6014,
"text": "While giving the answer to the issue, the High Court, inter-alia, held that when a particular word is not defined by the legislature and an ordinary meaning is to be attributed to it, the said ordinary meaning is to be in conformity with the context in which it is used."
}
},
{
"from_name": null,
"id": "19a91e2942354024832516ca994e4b57",
"to_name": null,
"type": null,
"value": {
"end": 6444,
"labels": [
"ARG_PETITIONER"
],
"start": 6285,
"text": "Hence, what is excluded from `export turnover' must also be excluded from `total turnover', since one of the components of `total turnover' is export turnover."
}
},
{
"from_name": null,
"id": "a9075088a08247fe84e448f77c7f75c0",
"to_name": null,
"type": null,
"value": {
"end": 6557,
"labels": [
"ARG_PETITIONER"
],
"start": 6445,
"text": "Any other interpretation would run counter to the legislative intent and would be impermissible.\n 18. XXXXXX 19."
}
},
{
"from_name": null,
"id": "b8f7d1fd4b474ad4b78dd97319ae49da",
"to_name": null,
"type": null,
"value": {
"end": 6748,
"labels": [
"ARG_PETITIONER"
],
"start": 6558,
"text": "In the instant case, if the deductions on freight, telecommunication and insurance attributable to the delivery of computer software under Section 10A of the IT Act are allowed only Vs. M/s."
}
},
{
"from_name": null,
"id": "8018b374932b4a3d9775b2bafdc7cce2",
"to_name": null,
"type": null,
"value": {
"end": 6842,
"labels": [
"ARG_PETITIONER"
],
"start": 6749,
"text": "Commscope Networks (India) Pvt. Ltd., 7/14 in Export Turnover but not from the Total Turnover"
}
},
{
"from_name": null,
"id": "19da4786b81b40729fb9b5179bf6f22e",
"to_name": null,
"type": null,
"value": {
"end": 7040,
"labels": [
"ARG_PETITIONER"
],
"start": 6843,
"text": "then, it would give rise to inadvertent, unlawful, meaningless and illogical result which would cause grave injustice to the Respondent which could have never been the intention of the legislature."
}
},
{
"from_name": null,
"id": "31e1464172ee4a35aff24bc3bf44235f",
"to_name": null,
"type": null,
"value": {
"end": 7235,
"labels": [
"ARG_PETITIONER"
],
"start": 7040,
"text": "\n 20. Even in common parlance, when the object of the formula is to arrive at the profit from export business, expenses excluded from export turnover have to be excluded from total turnover also."
}
},
{
"from_name": null,
"id": "eca3df2d646f4a09b396d002af1982e1",
"to_name": null,
"type": null,
"value": {
"end": 7312,
"labels": [
"ARG_PETITIONER"
],
"start": 7236,
"text": "Otherwise, any other interpretation makes the formula unworkable and absurd."
}
},
{
"from_name": null,
"id": "d141295e72c740228cb0c0c79f07436f",
"to_name": null,
"type": null,
"value": {
"end": 7426,
"labels": [
"ARG_PETITIONER"
],
"start": 7313,
"text": "Hence, we are satisfied that such deduction shall be allowed from the total turnover in same proportion as well\"."
}
},
{
"from_name": null,
"id": "bd82a61d60c1488c95318a7c309cd288",
"to_name": null,
"type": null,
"value": {
"end": 7516,
"labels": [
"ARG_PETITIONER"
],
"start": 7428,
"text": "Mr.K.V.Aravind also submits that he does not press the substantial question of law No.4."
}
},
{
"from_name": null,
"id": "b7f80aedd6604e7aa54353f2597de894",
"to_name": null,
"type": null,
"value": {
"end": 7544,
"labels": [
"NONE"
],
"start": 7517,
"text": "His submission is recorded."
}
},
{
"from_name": null,
"id": "45d2c16b5b914a8da8498d4b04ef4c17",
"to_name": null,
"type": null,
"value": {
"end": 7711,
"labels": [
"ANALYSIS"
],
"start": 7544,
"text": "\n 4. Regarding substantial question of law Nos.\n 2 and 3 - The learned Tribunal, after discussing the rival contentions of both the Appellants-Revenue and the Vs. M/s."
}
},
{
"from_name": null,
"id": "37f9bf7f5d6c4ba8910121a7a42a9134",
"to_name": null,
"type": null,
"value": {
"end": 7721,
"labels": [
"ANALYSIS"
],
"start": 7712,
"text": "Commscope"
}
},
{
"from_name": null,
"id": "5ba24031f95041e49cf14c3536f81c27",
"to_name": null,
"type": null,
"value": {
"end": 7730,
"labels": [
"ANALYSIS"
],
"start": 7722,
"text": "Networks"
}
},
{
"from_name": null,
"id": "114c0261d26b45ddb55b808f4b0df2ce",
"to_name": null,
"type": null,
"value": {
"end": 7775,
"labels": [
"ANALYSIS"
],
"start": 7731,
"text": "(India) Pvt. Ltd., 8/14 Respondent-assessee,"
}
},
{
"from_name": null,
"id": "938852ef054d48939271a1e152e844c9",
"to_name": null,
"type": null,
"value": {
"end": 7981,
"labels": [
"ANALYSIS"
],
"start": 7776,
"text": "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": "3a55385a697f45808ac688f540c4e0aa",
"to_name": null,
"type": null,
"value": {
"end": 8056,
"labels": [
"ANALYSIS"
],
"start": 7982,
"text": "We consider it appropriate to quote the relevant portions hereunder:- \" 7."
}
},
{
"from_name": null,
"id": "782aefc4d05f4738a93b81c65c13b053",
"to_name": null,
"type": null,
"value": {
"end": 8105,
"labels": [
"ANALYSIS"
],
"start": 8057,
"text": "Now, we decide the issue of various comparables."
}
},
{
"from_name": null,
"id": "ea9eec6c70c0465b9874ab6ca0f0db7c",
"to_name": null,
"type": null,
"value": {
"end": 8175,
"labels": [
"ANALYSIS"
],
"start": 8106,
"text": "The assessee selected 14 comparables and the TPO took 13 comparables."
}
},
{
"from_name": null,
"id": "989bf5f7bbf8493283b8eea1dd6e58ca",
"to_name": null,
"type": null,
"value": {
"end": 8288,
"labels": [
"ANALYSIS"
],
"start": 8175,
"text": "\n DRP directed for exclusion of 9 comparables for which the revenue is in appeal seeking their inclusion."
}
},
{
"from_name": null,
"id": "c6d56e616f3a4ee8a974e7fd45dd123f",
"to_name": null,
"type": null,
"value": {
"end": 8373,
"labels": [
"ANALYSIS"
],
"start": 8289,
"text": "The assessee is in appeal for exclusion of 5 comparables which were retained by DRP."
}
},
{
"from_name": null,
"id": "6c1286b46831485fbd0bef6acb247cd8",
"to_name": null,
"type": null,
"value": {
"end": 8587,
"labels": [
"ANALYSIS"
],
"start": 8383,
"text": "At the same time, the assessee is asking for inclusion of 1) Evoke Technologies Pvt. Ltd., 2) Mindtree Ltd. (Seg) and 3) R S Software (India) Ltd. being 3 comparables out of 9 comparables excluded by DRP."
}
},
{
"from_name": null,
"id": "f161fcfc6d3144f59a11b5e2b3c968c7",
"to_name": null,
"type": null,
"value": {
"end": 8649,
"labels": [
"ANALYSIS"
],
"start": 8588,
"text": "The assessee is also seeking inclusion of LGS Global Ltd.\n 8."
}
},
{
"from_name": null,
"id": "3b0cce2e88ca41cf93c4b8efafca3a97",
"to_name": null,
"type": null,
"value": {
"end": 8731,
"labels": [
"ANALYSIS"
],
"start": 8650,
"text": "We decided the issue of various exclusions and inclusions in these cross appeals."
}
},
{
"from_name": null,
"id": "0d20f40751804a05a664a39a5d525420",
"to_name": null,
"type": null,
"value": {
"end": 9342,
"labels": [
"ANALYSIS"
],
"start": 8741,
"text": "Regarding inclusion of 3 comparables out of 9 comparables excluded by DRP, we find that when Vs. M/s. Commscope Networks (India) Pvt. Ltd., 9/14 both sides are seeking inclusion of these 3 comparables being 1) Evoke Technologies Pvt.\nLtd., 2) Mindtree Ltd. (Seg) and 3) R S Software (India) Ltd. and their inclusion is proper as per the tribunal order rendered in the case of Applied materials India Pvt. Ltd. vs. ACIT as reported in TS 815 ITAT 2016, we reverse the order of DRP about exclusion of these 3 comparables and direct the AO/TPO to included these three in final list of comparables.\n 9."
}
},
{
"from_name": null,
"id": "4ed0872cab87439095e151bb9ec40098",
"to_name": null,
"type": null,
"value": {
"end": 9489,
"labels": [
"ANALYSIS"
],
"start": 9343,
"text": "Now we decide about the remaining 6 comparables excluded by DRP and 4 comparables retained by DRP but for which the assessee is seeking exclusion."
}
},
{
"from_name": null,
"id": "a079298b1e9e49dcbe6d47ec8aeee25a",
"to_name": null,
"type": null,
"value": {
"end": 9806,
"labels": [
"ANALYSIS"
],
"start": 9490,
"text": "Out of these 6 comparables excluded by DRP, one comparable ICRA Techno Analytics Ltd. is having RPT in excess of 15% and therefore, for this reason alone, this comparable has to be excluded although DRP has excluded it for a different reason that it is having various activities and segmental data are not available."
}
},
{
"from_name": null,
"id": "a411f9f20ee84067ac5ed0ca6333f639",
"to_name": null,
"type": null,
"value": {
"end": 9856,
"labels": [
"ANALYSIS"
],
"start": 9807,
"text": "We uphold its exclusion on account of RPT filter."
}
},
{
"from_name": null,
"id": "0917dc1cbe53484a99089a320899d874",
"to_name": null,
"type": null,
"value": {
"end": 10043,
"labels": [
"PRE_RELIED"
],
"start": 9857,
"text": "Exclusion of Acropetal Technologies Ltd. (Seg) is covered in favour of the assessee by the same tribunal order rendered in the case of Applied materials India Pvt. Ltd. vs. ACIT (Supra)."
}
},
{
"from_name": null,
"id": "8626836d0aa5479980e59ea4a0088c61",
"to_name": null,
"type": null,
"value": {
"end": 10154,
"labels": [
"PRE_RELIED"
],
"start": 10044,
"text": "Respectfully following Vs. M/s. Commscope Networks (India) Pvt. Ltd., 10/14 the same, we uphold its exclusion."
}
},
{
"from_name": null,
"id": "67cad79f25c1497e8d91020c5ecd9fbc",
"to_name": null,
"type": null,
"value": {
"end": 10524,
"labels": [
"PRE_RELIED"
],
"start": 10155,
"text": "Exclusion of 1) e Zest Solutions Ltd., 2) Infosys Ltd., 3) Larsen & Toubro Infotech Ltd., 4) Persistent Systems & Solutions Ltd., 5) Persistent Systems Ltd., 6) Sasken Communication Technologies Ltd.\nand 7) Tata Elxsi Ltd. are also covered in favour of the assessee by the same tribunal order rendered in the case of Applied materials India Pvt. Ltd. vs. ACIT (Supra)."
}
},
{
"from_name": null,
"id": "eb86c1336738479a8ad025fdf1b7d438",
"to_name": null,
"type": null,
"value": {
"end": 10614,
"labels": [
"ANALYSIS"
],
"start": 10525,
"text": "Respectfully following the same, we uphold the exclusion of these Seven comparables also."
}
},
{
"from_name": null,
"id": "51236bdde59f4ef4a5cccf8864bbba9d",
"to_name": null,
"type": null,
"value": {
"end": 10645,
"labels": [
"PRE_RELIED"
],
"start": 10615,
"text": "Exclusion of E Infochips Ltd."
}
},
{
"from_name": null,
"id": "f5b8149bfe454210a4d1d30e34f20a25",
"to_name": null,
"type": null,
"value": {
"end": 10847,
"labels": [
"PRE_RELIED"
],
"start": 10645,
"text": "\nis covered in favour of the assessee by the tribunal order rendered in the case of Saxo India Pvt. Ltd. vs. ACIT in ITA No.6148/Del/2015 dated 05-02-2016 Para 10.1 & 10.2 available at pages 221 to 223."
}
},
{
"from_name": null,
"id": "c193779a442b413e8e1202f0a8a8c997",
"to_name": null,
"type": null,
"value": {
"end": 10905,
"labels": [
"ANALYSIS"
],
"start": 10848,
"text": "Respectfully following the same, we uphold its exclusion."
}
},
{
"from_name": null,
"id": "6700553851504ff59d1d692ab014de28",
"to_name": null,
"type": null,
"value": {
"end": 11216,
"labels": [
"ANALYSIS"
],
"start": 10906,
"text": "In this manner, we uphold the exclusion of six comparables excluded by DRP out of 9 comparables excluded by DRP and exclude 4 comparables retained by DRP and we have already held that out of 9 comparables excluded by DRP, 3 have to come back being 1) Evoke Technologies Pvt. Ltd., 2) Mindtree Ltd. (Seg) and 3)"
}
},
{
"from_name": null,
"id": "395e7f01317247e78ce5b5d3ff1c2ec8",
"to_name": null,
"type": null,
"value": {
"end": 11242,
"labels": [
"ANALYSIS"
],
"start": 11217,
"text": "R S Software (India) Ltd."
}
},
{
"from_name": null,
"id": "5fb087e057a64265a137cfa4164f16f4",
"to_name": null,
"type": null,
"value": {
"end": 11279,
"labels": [
"ANALYSIS"
],
"start": 11243,
"text": "Now, we decide about LGS Global Ltd."
}
},
{
"from_name": null,
"id": "4e251b8946ee4a6b9975cd516a394680",
"to_name": null,
"type": null,
"value": {
"end": 11530,
"labels": [
"ANALYSIS"
],
"start": 11280,
"text": "As per the tribunal order rendered in the case of Applied materials India Pvt. Ltd. vs. ACIT (Supra), Vs. M/s. Commscope Networks (India) Pvt. Ltd., 11/14 this is a good comparable and therefore, we direct the A.O. and TPO to include this comparable."
}
},
{
"from_name": null,
"id": "468b330677f34c4eb60963db67636036",
"to_name": null,
"type": null,
"value": {
"end": 11658,
"labels": [
"ANALYSIS"
],
"start": 11531,
"text": "So, there should be 4 comparables in the final list of comparable and on the basis of that, the AO/TPO should work out the ALP."
}
},
{
"from_name": null,
"id": "58042affb94b4ce0a6000a8238764547",
"to_name": null,
"type": null,
"value": {
"end": 11742,
"labels": [
"PRE_RELIED"
],
"start": 11660,
"text": "10. In the result, the appeal of the assessee and revenue are partly allowed\".\n 5."
}
},
{
"from_name": null,
"id": "cc62590364ef44c683b33ce45460de7e",
"to_name": null,
"type": null,
"value": {
"end": 12182,
"labels": [
"PRE_RELIED"
],
"start": 11743,
"text": "This Court in ITA No.536/2015 C/w ITA No.537/2015 delivered on 25.06.2018 (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.\n "
}
},
{
"from_name": null,
"id": "ab28a80cc4ec43aabe58097f48502a88",
"to_name": null,
"type": null,
"value": {
"end": 12375,
"labels": [
"ANALYSIS"
],
"start": 12182,
"text": "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 Vs. M/s."
}
},
{
"from_name": null,
"id": "b2cdf7d772444c9c9e7a65838aa312bd",
"to_name": null,
"type": null,
"value": {
"end": 12385,
"labels": [
"ANALYSIS"
],
"start": 12376,
"text": "Commscope"
}
},
{
"from_name": null,
"id": "7881b1169d9645aab56ecd02c9945102",
"to_name": null,
"type": null,
"value": {
"end": 12394,
"labels": [
"ANALYSIS"
],
"start": 12386,
"text": "Networks"
}
},
{
"from_name": null,
"id": "fdc22955380d4d428fc70b42da913f50",
"to_name": null,
"type": null,
"value": {
"end": 12461,
"labels": [
"ANALYSIS"
],
"start": 12395,
"text": "(India) Pvt. Ltd., 12/14 quick judicial dispensation in such cases"
}
},
{
"from_name": null,
"id": "f083a8ce23f44cbba65514d6aa53b39f",
"to_name": null,
"type": null,
"value": {
"end": 13093,
"labels": [
"ANALYSIS"
],
"start": 12461,
"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 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": "acde46e4c48e440ea2b28dac9f04ba98",
"to_name": null,
"type": null,
"value": {
"end": 13381,
"labels": [
"ANALYSIS"
],
"start": 13094,
"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": "9b684e2a30f745dab8c6acd8d816fca4",
"to_name": null,
"type": null,
"value": {
"end": 13804,
"labels": [
"ANALYSIS"
],
"start": 13381,
"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 Vs. M/s. Commscope Networks (India) Pvt. Ltd., 13/14 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": "f7c8808c801248bea6bfbbedc9319df5",
"to_name": null,
"type": null,
"value": {
"end": 14230,
"labels": [
"ANALYSIS"
],
"start": 13805,
"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 such appeals before this Court."
}
},
{
"from_name": null,
"id": "47a573079dfa4fdaaa3e0071d8738bfd",
"to_name": null,
"type": null,
"value": {
"end": 14427,
"labels": [
"RATIO"
],
"start": 14231,
"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": "4a6c44fdad5d44f88a14bb973128d4b1",
"to_name": null,
"type": null,
"value": {
"end": 14517,
"labels": [
"RPC"
],
"start": 14427,
"text": "\n 58. The appeals filed by the Revenue are therefore dismissed with no order as to costs.\""
}
},
{
"from_name": null,
"id": "c51fc72611e24426aa1d05df6839ed5f",
"to_name": null,
"type": null,
"value": {
"end": 14673,
"labels": [
"RATIO"
],
"start": 14517,
"text": "\n 6. Having heard the learned counsels for the parties, we are therefore of the opinion that no substantial question of law arises in the present case also."
}
},
{
"from_name": null,
"id": "b17957b08fa140eb90dada0fa6e8033a",
"to_name": null,
"type": null,
"value": {
"end": 14828,
"labels": [
"RPC"
],
"start": 14674,
"text": "The appeal filed by the Appellants-Revenue is Vs. M/s. Commscope Networks (India) Pvt. Ltd., 14/14 liable to be dismissed and it is dismissed accordingly."
}
},
{
"from_name": null,
"id": "bf1134a560a44c6e9fb38f8140fbc6fe",
"to_name": null,
"type": null,
"value": {
"end": 14838,
"labels": [
"RPC"
],
"start": 14828,
"text": "\nNo costs."
}
},
{
"from_name": null,
"id": "eba92398537b4813a575a8754c3b7b30",
"to_name": null,
"type": null,
"value": {
"end": 14866,
"labels": [
"NONE"
],
"start": 14838,
"text": "\n Sd/- JUDGE Sd/- JUDGE Srl."
}
}
]
}
] | 4,267 | {
"text": " 1/14\n\nIN THE HIGH COURT OF KARNATAKA, BENGALURU\n\n DATED THIS THE 04th DAY OF JULY 2018\n\n PRESENT\n\n THE HON'BLE Dr.JUSTICE VINEET KOTHARI\n\n AND\n\n THE HON'BLE Mrs.JUSTICE S.SUJATHA\n\n I.T.A.No.597/2017\n\nBETWEEN:\n\n1. THE PR. COMMISSIONER OF INCOME-TAX, CIT(A)\n 5TH FLOOR, BMTC BUILDING\n 80 FEET ROAD, KORMANGALA\n BENGALURU-560 095.\n\n2. THE INCOME-TAX OFFICER\n WARD-1(1)(1), 2ND FLOOR\n BMTC BUILDING, 80 FEET ROAD\n KORMANGALA, BENGALURU-560 095.\n ...APPELLANTS\n\n(By Mr. ARAVIND K.V. ADV.)\n\nAND:\n\nM/S. COMMSCOPE NETWORKS (INDIA) PVT. LTD.,\nEARLIER KNOWN AS AIRVANA NETWORKS\n(INDIA) PVT. LTD.,\nSALARPURIA SOFTZONE, BLK A\nWING B, 1ST FLOOR, BELLANDUR\nVILLAGE VARTHUR HOBLI\nOUTER RING ROAD, BENGALURU-560 013\nPAN: AAECA 7568G.\n\n ...RESPONDENT\n(By Ms. TANMAYEE RAJKUMAR, ADV.)\n\n Vs. M/s. Commscope Networks (India) Pvt. Ltd.,\n 2/14\n\n THIS I.T.A IS FILED UNDER SECTION 260-A OF INCOME\nTAX ACT, 1961, PRAYING TO FORMULATE THE SUBSTANTIAL\nQUESTIONS OF LAW STATED ABOVE. ALLOW THE APPEAL AND\nSET ASIDE THE ORDERS PASSED BY THE INCOME TAX\nAPPELLATE TRIBUNAL, BENGALURU IN IT(TP)A\nNo.181/Bang/2016 DATED 22/02/2017 ANNEXURE-D AND\nCONFIRMING THE ORDER OF THE DRP CONFIRM THE ORDER\nPASSED BY THE INCOME TAX OFFICER, WARD-1(1)(1),\nBENGALURU & ETC.\n\n THIS I.T.A. COMING ON FOR ADMISSION, THIS DAY\nDr. VINEET KOTHARI J. DELIVERED THE FOLLOWING:-\n\n JUDGMENT\n Mr. Aravind K.V. Adv. for Appellants- Revenue Ms. Tanmayee Rajkumar, Adv. for Respondent - Assessee 1. 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, Bangalore Bench `C', Bangalore, dated 22.02.2017 passed in IT(TP)A No.166/Bang/2016 (M/s.Commscope Networks (India) Pvt. Ltd., vs. The Income Tax Officer) for A.Y.2011-12.\n 2. The proposed substantial questions of law framed in the Memorandum of appeal by the Vs. M/s. Commscope Networks (India) Pvt. Ltd., 3/14 Appellants-Revenue are quoted below for ready reference:- \"1. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the expenses and foreign exchange loss reduced from the Export Turnover has to be reduced from the Total Turnover also following the ratio laid down by this Hon'ble Court in the case of CIT Vs. M/s. Tata Elxsi Ltd even when said decision has been challenged before Apex Court by Revenue and no provision under section 10A provides for exclusion of such expenses from total turnover?\n 2. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in excluding certain comparable from list of comparable adopted by TPO on the ground of functional dissimilarity by following its earlier which has not reached finality even when said decisions have not reached finality and all the requires tests are satisfied?\n 3. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in excluding comparable even when the said Vs. M/s. Commscope Networks (India) Pvt. Ltd., 4/14 comparable are chosen as all the required tests are satisfied?\n 4. Whether on the facts and in the circumstances of the case, it is submitted that Tribunal is right in law in directing the assessing authority to consider exchange fluctuation gain even when the assessee had failed to furnish details to ascertain whether exchange fluctuation gain relates to current year's turnover or earlier years turnover?\n 5. Whether on the facts and in the circumstances of the case, the Tribunal has also erred in excluding comparable's on the basis of RPT filter being less than 25% by following its earlier decision which has reached finality not even when the comparable's are chosen as all the required tests are satisfied?\n 6. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in excluding comparable namely, M/s.\nAccropetal Technology Ltd by following its earlier decision in case of M/s. Applied Materials India Ltd even the said comparable satisfies the filter of information technology revenue applied by TPO?\".\n Vs. M/s. Commscope Networks (India) Pvt. Ltd., 5/14 3. Learned counsel for the Appellants-Revenue Mr.K.V.Aravind submits that he does not press the substantial question of law No.1, as the issue regarding deduction of expenditure incurred for `Export Turn Over' is also required to be deducted from `Total Turn Over' for the purpose of computing the deduction u/s.10A of the Act, the controversy is no longer res integra and is covered by the decision of the Division Bench of this Court in the case of M/s.Tata Elxsi Ltd., vs. Asst.Commissioner of Income Tax, decided on 20.10.2015 since reported in (2015) 127 DTR 0327 (Kar), which has been affirmed by the Hon'ble Supreme Court in the case of Commissioner of Income-tax, Central III vs. HCL Technologies Ltd., [2018] 93 Taxmann.com 33(SC).\n The relevant portion of the judgment of the Hon'ble Supreme Court in the case of HCL Technologies Ltd. (supra), is quoted below for ready reference:- Vs. M/s. Commscope Networks (India) Pvt. Ltd., 6/14 \"17. The similar nature of controversy, akin this case, arose before the Karnataka High Court in CIT v. Tata Elxsi Ltd. [2012] 204 Taxman 321/17/taxman.com 100/349 ITR 98. The issue before the Karnataka High Court was whether the Tribunal was correct in holding that while computing relief under Section 10A of the IT Act, the amount of communication expenses should be excluded from the total turnover if the same are reduced from the export turnover? While giving the answer to the issue, the High Court, inter-alia, held that when a particular word is not defined by the legislature and an ordinary meaning is to be attributed to it, the said ordinary meaning is to be in conformity with the context in which it is used. Hence, what is excluded from `export turnover' must also be excluded from `total turnover', since one of the components of `total turnover' is export turnover. Any other interpretation would run counter to the legislative intent and would be impermissible.\n 18. XXXXXX 19. In the instant case, if the deductions on freight, telecommunication and insurance attributable to the delivery of computer software under Section 10A of the IT Act are allowed only Vs. M/s. Commscope Networks (India) Pvt. Ltd., 7/14 in Export Turnover but not from the Total Turnover then, it would give rise to inadvertent, unlawful, meaningless and illogical result which would cause grave injustice to the Respondent which could have never been the intention of the legislature.\n 20. Even in common parlance, when the object of the formula is to arrive at the profit from export business, expenses excluded from export turnover have to be excluded from total turnover also. Otherwise, any other interpretation makes the formula unworkable and absurd. Hence, we are satisfied that such deduction shall be allowed from the total turnover in same proportion as well\".\n Mr.K.V.Aravind also submits that he does not press the substantial question of law No.4. His submission is recorded.\n 4. Regarding substantial question of law Nos.\n 2 and 3 - The learned Tribunal, after discussing the rival contentions of both the Appellants-Revenue and the Vs. M/s. Commscope Networks (India) Pvt. Ltd., 8/14 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:- \" 7. Now, we decide the issue of various comparables. The assessee selected 14 comparables and the TPO took 13 comparables.\n DRP directed for exclusion of 9 comparables for which the revenue is in appeal seeking their inclusion. The assessee is in appeal for exclusion of 5 comparables which were retained by DRP.\n At the same time, the assessee is asking for inclusion of 1) Evoke Technologies Pvt. Ltd., 2) Mindtree Ltd. (Seg) and 3) R S Software (India) Ltd. being 3 comparables out of 9 comparables excluded by DRP. The assessee is also seeking inclusion of LGS Global Ltd.\n 8. We decided the issue of various exclusions and inclusions in these cross appeals.\n Regarding inclusion of 3 comparables out of 9 comparables excluded by DRP, we find that when Vs. M/s. Commscope Networks (India) Pvt. Ltd., 9/14 both sides are seeking inclusion of these 3 comparables being 1) Evoke Technologies Pvt.\nLtd., 2) Mindtree Ltd. (Seg) and 3) R S Software (India) Ltd. and their inclusion is proper as per the tribunal order rendered in the case of Applied materials India Pvt. Ltd. vs. ACIT as reported in TS 815 ITAT 2016, we reverse the order of DRP about exclusion of these 3 comparables and direct the AO/TPO to included these three in final list of comparables.\n 9. Now we decide about the remaining 6 comparables excluded by DRP and 4 comparables retained by DRP but for which the assessee is seeking exclusion. Out of these 6 comparables excluded by DRP, one comparable ICRA Techno Analytics Ltd. is having RPT in excess of 15% and therefore, for this reason alone, this comparable has to be excluded although DRP has excluded it for a different reason that it is having various activities and segmental data are not available. We uphold its exclusion on account of RPT filter. Exclusion of Acropetal Technologies Ltd. (Seg) is covered in favour of the assessee by the same tribunal order rendered in the case of Applied materials India Pvt. Ltd. vs. ACIT (Supra). Respectfully following Vs. M/s. Commscope Networks (India) Pvt. Ltd., 10/14 the same, we uphold its exclusion. Exclusion of 1) e Zest Solutions Ltd., 2) Infosys Ltd., 3) Larsen & Toubro Infotech Ltd., 4) Persistent Systems & Solutions Ltd., 5) Persistent Systems Ltd., 6) Sasken Communication Technologies Ltd.\nand 7) Tata Elxsi Ltd. are also covered in favour of the assessee by the same tribunal order rendered in the case of Applied materials India Pvt. Ltd. vs. ACIT (Supra). Respectfully following the same, we uphold the exclusion of these Seven comparables also. Exclusion of E Infochips Ltd.\nis covered in favour of the assessee by the tribunal order rendered in the case of Saxo India Pvt. Ltd. vs. ACIT in ITA No.6148/Del/2015 dated 05-02-2016 Para 10.1 & 10.2 available at pages 221 to 223. Respectfully following the same, we uphold its exclusion. In this manner, we uphold the exclusion of six comparables excluded by DRP out of 9 comparables excluded by DRP and exclude 4 comparables retained by DRP and we have already held that out of 9 comparables excluded by DRP, 3 have to come back being 1) Evoke Technologies Pvt. Ltd., 2) Mindtree Ltd. (Seg) and 3) R S Software (India) Ltd. Now, we decide about LGS Global Ltd. As per the tribunal order rendered in the case of Applied materials India Pvt. Ltd. vs. ACIT (Supra), Vs. M/s. Commscope Networks (India) Pvt. Ltd., 11/14 this is a good comparable and therefore, we direct the A.O. and TPO to include this comparable. So, there should be 4 comparables in the final list of comparable and on the basis of that, the AO/TPO should work out the ALP.\n 10. In the result, the appeal of the assessee and revenue are partly allowed\".\n 5. This Court in ITA No.536/2015 C/w ITA No.537/2015 delivered on 25.06.2018 (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.\n 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 Vs. M/s. Commscope Networks (India) Pvt. Ltd., 12/14 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 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 Vs. M/s. Commscope Networks (India) Pvt. Ltd., 13/14 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 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 counsels for the parties, we are therefore of the opinion that no substantial question of law arises in the present case also. The appeal filed by the Appellants-Revenue is Vs. M/s. Commscope Networks (India) Pvt. Ltd., 14/14 liable to be dismissed and it is dismissed accordingly.\nNo costs.\n Sd/- JUDGE Sd/- JUDGE Srl.\n"
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"text": "PETITIONER:\nKANTAMANI VENKATA NARAYANA & SONS\n\n Vs.\n\nRESPONDENT:"
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"text": "\n\nDATE OF JUDGMENT:\n27/10/1966\n\nBENCH:"
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"text": "\nBENCH:\nSHAH, J.C.\nRAMASWAMI, V.\nBHARGAVA, VISHISHTHA\n\nCITATION:\n\n1967 AIR 587 1967 SCR (1) 984\n\nCITATOR INFO : (14)\n (11)\nF 1970 SC1011\n\nRF 1975 SC 703\n\nACT: s. 34--Escaped\nIncome-tax Act (11 of 1922), to state clause-\nassessment--Notice, whether necessary\nGrounds of challenge.\n\nHEADNOTE:\nDuring the assessment proceedings of a company, the Income-\ntax Officer discovered that there. was a large accretion to\nthe wealth of the assessee, which had not been disclosed in\nthe assessment proceedings of the assessee, and the, Officer\nissued notices under s. 34 for the reassessment of income\nduring that period."
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"text": "The assessee filed writ petitions in\nthe High Court, in reply to which the Income-tax Officer\nfiled affidavits stating that relying on the information\nreceived by him, he had reason to believe that the assessee\nhad not disclosed fully and truly all material facts and in\nconsequence, income chargeable to tax had escaped\nassessment."
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"text": "The writ petitions were rejected and the order\nwas confirmed in appeal by the High Court."
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"text": "In appeals by\nthe assessee, this Court,\nHELD : The appeals must be dismissed."
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"text": "[989 B]\nThe Income-tax Officer had prima facie reason to believe\nthat information material to assessment had been withheld,\nand that on account of withholding of that information\nincome liable to tax had escaped assessment."
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"text": "From the mere\nproduction of the books of account., it could not be\ninferred that there had been full disclosure of the material\nfacts necessary for the purpose of assessment."
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"text": "Sections 23\nand 24 of the Act lay that the assessee is under a duty to\ndisclose fully and truly material facts necessary for the\nassessment of the year and that duty is not discharged\nmerely by the production of the books of accounts or other\nevidence."
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"text": "It is the duty of the assessee to bring to the\n\nnotice of the Income-tax Officer particular items in the\nbooks of account or portions of documents which are\nrelevant."
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"text": "Even if it be assumed that from the books\nproduced, the Incometax Officer, if he had been circumspect,\ncould have found out the truth, the Income-tax Officer may\nnot on that account be precluded from exercising the power\nto assess income which had escaped assessment."
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"end": 2922,
"labels": [
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"text": "[989 G990 B]\nIt is not necessary or imperative that a notice under s. 34\nmust specify under which of the two clauses-cl. (a) or cl.\n(b) of sub-s. (1) of s. 34, the notice is issued."
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"labels": [
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"text": "[986 A]\nP. R. Mukherjee v. Commissioner of Income-tax, West\nBengal, 30 I.T.R. 535, approved."
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"text": "\nTwo conditions precedent must co-exist, before a notice\nunder s. 34 (1)(a) of the Act may be issued : the income-tax\nOfficer must have reason to believe (1) that income, profits\nor gains had been under assessed, and (2) that such under\nassessment was due to non-disclosure of material facts by\nthe assessee."
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"text": "Where the Income-tax Officer has prima\n985\nfacie reasonable grounds for believing that there has been"
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"text": "a\nnon-disclosure of primary material fact, that by itself\ngives him jurisdiction to issue notice under s. 34 and the\nadequacy or otherwise of the grounds of such belief is not\nopen to investigation by the Court. [1987 C]\nCalcutta Discount Company Ltd. v. Income-tax Officer,\nCompanies District 1 [1961] 2 S.C.R. 241 and S. Narayanappa\nv."
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"text": "The Commissioner of Income-tax, Bangalore [1967] 1 S.C.R.\n596 relied on."
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"text": "\n\nJUDGMENT:CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 154, to 165 of 1966."
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"end": 4247,
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"text": "\nP. Ram Reddy and A. V. V. Nair, for the appellants (in all the appeals).\nS. V. Gupte, Solicitor-General, R. Ganapathy Iyer and R.\nN. Sachthey, for respondent (in all the appeals)."
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"text": "\nThe Judgment of the Court was delivered by Shah, J. M/s. Kantamani Venkata Narayana & Sons-hereinafter referred to as 'the assessee' is a Hindu undivided family, which was assessed to tax on income derived principally from money--lending."
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"text": "In the course of proceedings for assessment of a private limited company styled \"Motu Industries Ltd.,\"\nthe Incometax Officer, Rajahmundry discovered that there was a large accretion to the wealth of the assessee which had not been disclosed in proceedings for its assessment."
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"text": "On March 12, 1959, the Income-tax Officer issued a notice seeking to reopen the assessment for the year 1950-51."
}
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"text": "The assessee filed a return under protest."
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"text": "On March 14, 1960 the Income-tax Officer issued notice of re-assessment for the year 1951-52, and on December 19, 1960, the Income-tax Officer intimated the reasons that had prompted him to issue the notices of re-assessment."
}
},
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"start": 5146,
"text": "On March 24, 1962 the Income- tax Officer issued notices under s. 34 for re-assessment of income of the assessee for the years 1940-41 to 1949-50."
}
},
{
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"id": "46dee573203d4d56a41a464ce83e0026",
"to_name": "text",
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"end": 5548,
"labels": [
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],
"start": 5292,
"text": "\nThe assessee then presented petitions in the High Court of Andhra Pradesh for writs of prohibition directing the Income-tax Officer to refrain from proceeding in pursuance of the notices for the assessment years 1940-41 to 1949-50 and 1950-51 and 1951-52."
}
},
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"end": 5681,
"labels": [
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],
"start": 5549,
"text": "A single Judge of the High Court rejected the petitions and the order was confirmed in appeal by a Division Bench of the High Court."
}
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{
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"id": "4c5150b47a6e42839a274173f4b77b90",
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"end": 5727,
"labels": [
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],
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"text": "The assessee has appealed with special leave."
}
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"to_name": "text",
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"end": 5894,
"labels": [
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],
"start": 5727,
"text": "\nThe notice issued by the Income-tax Officer did not specifically refer to s. 34(1)(a) of the Income-tax Act : it did not set out the clause under which it was issued."
}
},
{
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"end": 5960,
"labels": [
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"text": "But on that account the proceeding under s.. 34 is -not vitiated."
}
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{
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"id": "06b0c104a857477baac26c99e974edd3",
"to_name": "text",
"type": "labels",
"value": {
"end": 6257,
"labels": [
"FAC"
],
"start": 5961,
"text": "It was held by the Calcutta Sup.C.1.166-18 986 High Court in P. R. Mukherjee v. Commissioner of Income-tax West Bengal(1), that it is not necessary or imperative that a notice -under s. 34 must specify under which of the two clauses-cl. (a)an cl. (b) of sub-s. (1) of s. 34, the notice is issued."
}
},
{
"from_name": "label",
"id": "807778567eb745659602fff3306fe802",
"to_name": "text",
"type": "labels",
"value": {
"end": 6394,
"labels": [
"FAC"
],
"start": 6258,
"text": "The main notice to be issued in a case under s.\n34 is the notice under s. 22(2), and s. 34 merely authorises the issue of such a notice."
}
},
{
"from_name": "label",
"id": "4c430994c05b45bcabc1ebacb294fb3c",
"to_name": "text",
"type": "labels",
"value": {
"end": 6474,
"labels": [
"FAC"
],
"start": 6394,
"text": "\nThe proceedings for re-assessment cover a period of 12 years 194041 to 1951-52."
}
},
{
"from_name": "label",
"id": "3f3a5a09106948a9b8507b1e764a51ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 6628,
"labels": [
"FAC"
],
"start": 6475,
"text": "Section 34 of the Income-tax Act has under gone some changes during that period, but the basic scheme of the section has remained substantially the same."
}
},
{
"from_name": "label",
"id": "ed5aa139a0de47e098453c32244637d0",
"to_name": "text",
"type": "labels",
"value": {
"end": 7826,
"labels": [
"FAC"
],
"start": 6628,
"text": "\nPower to re-assess income under s. 34(1) as amended by Act 7 of 1939 could be exercised if \"definite information\" had \"come into\" the possession of the Income-tax Officer, and in consequence of such information it was discovered that income chargeable to tax had escaped assessment By the Income-tax and Business Profits Tax (Amendment) Act 4 of 1948, s. 34(1) was recast to read as follows - (1) If- (a) the Income-tax Officer has reason to believe that by reason of the omission or 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 (b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year, or have been under-assessed, or assessed at too low a rate"
}
},
{
"from_name": "label",
"id": "539d5f49cfae4b8d941de99c27c1a996",
"to_name": "text",
"type": "labels",
"value": {
"end": 8240,
"labels": [
"FAC"
],
"start": 7826,
"text": ", he may in cases falling under clause (a) at any time and in cases falling under clause (b) at the time within four years of the end of that year, serve on the assessee, .... a notice containing all or any of the -requirements 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 (1) 30 I.T.R. 535.\n 987"
}
},
{
"from_name": "label",
"id": "276ecca8f610470d99bdb11c2a5b9aff",
"to_name": "text",
"type": "labels",
"value": {
"end": 8550,
"labels": [
"FAC"
],
"start": 8241,
"text": "An Explanation was also added which states \"Explanation Production before the Income-tax Officer of account books or other evidence from which material facts could with due diligence have been discovered by the Income- tax Officer will not necessarily amount to disclosure within the meaning of this section.\""
}
},
{
"from_name": "label",
"id": "3b5d2a2705bb498fb33ca14420aee3c5",
"to_name": "text",
"type": "labels",
"value": {
"end": 8705,
"labels": [
"ANALYSIS"
],
"start": 8550,
"text": "\nSince on the matter canvassed in these appeals there is no material change in the section, we will only refer to the section as amended by Act 48 of 1948."
}
},
{
"from_name": "label",
"id": "2c8e2f95333044508e448fcfc48450f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 9168,
"labels": [
"ANALYSIS"
],
"start": 8706,
"text": "This Court in Calcutta Discount Company Ltd. v. Income-tax officer, Companies District 1 and Another(1) observed that before the Income-tax Officer may issue a notice under s.\n34(1) (a) of the Indian Income-tax Act, two conditions precedent must co-exist : the Income-tax Officer must have reason to believe (1) that income, profits or gains had been under-assessed, and (2) that such under assessment was due to non-disclosure of material facts by the assessee."
}
},
{
"from_name": "label",
"id": "b377c1d1e8c646178fcc7a0e6e20a25c",
"to_name": "text",
"type": "labels",
"value": {
"end": 9522,
"labels": [
"ANALYSIS"
],
"start": 9169,
"text": "The Court further held that where the Income-tax Officer has prima facie reasonable grounds for believing that there has been a non-disclosure of a primary material fact, that by itself gives him jurisdiction to issue a notice under s. 34 of the Act, and the adequacy or otherwise of the grounds of such belief is not open to investigation by the Court."
}
},
{
"from_name": "label",
"id": "9d4957d482494e5ebe6c7eedb8dc1265",
"to_name": "text",
"type": "labels",
"value": {
"end": 10063,
"labels": [
"ANALYSIS"
],
"start": 9522,
"text": "\nIn a recent judgement of this Court in S. Narayanappa & Others v. The Commissioner of Income-tax, Bangalore,(2) Ramaswami J., speaking for the Court observed: \" . . . the legal position is that if there are in fact some reasonable grounds for the Income-tax Officer to believe that there had been any non-disclosure as regards any fact, which could have a material bearing on the question of under-assessment that would be sufficient to give jurisdiction to the Income- tax Officer to issue the notice under s. 34.\n "
}
},
{
"from_name": "label",
"id": "b37e75ead5f34617817cafa58235d2b6",
"to_name": "text",
"type": "labels",
"value": {
"end": 10150,
"labels": [
"ANALYSIS"
],
"start": 10063,
"text": "Whether these grounds are adequate or not is not a matter for the Court to investigate."
}
},
{
"from_name": "label",
"id": "371cd9262fff4b74a3d18f9961f5ae1c",
"to_name": "text",
"type": "labels",
"value": {
"end": 10269,
"labels": [
"ANALYSIS"
],
"start": 10151,
"text": "In other words, the sufficiency of the grounds which induced the Income-tax Officer to act is not a justiciable issue."
}
},
{
"from_name": "label",
"id": "85a0e786228c423683c2f694f59c3c65",
"to_name": "text",
"type": "labels",
"value": {
"end": 10410,
"labels": [
"ANALYSIS"
],
"start": 10270,
"text": "It is of course open for the assessee to contend that the Incometax Officer did not hold the belief that there had been such non-disclosure."
}
},
{
"from_name": "label",
"id": "0cdeb58d82224c9d89aa94accb71c2cb",
"to_name": "text",
"type": "labels",
"value": {
"end": 10543,
"labels": [
"ANALYSIS"
],
"start": 10411,
"text": "In other words, the existence of the belief can be challenged by the assessee but not the sufficiency of the reasons for the belief."
}
},
{
"from_name": "label",
"id": "115ed244efd44160bcf740ff275296be",
"to_name": "text",
"type": "labels",
"value": {
"end": 10707,
"labels": [
"ANALYSIS"
],
"start": 10544,
"text": "Again the expression $treason to believe\" in section 34 of the Income-tax Act does not mean a purely subjective satisfaction on the part of the Income-tax Officer."
}
},
{
"from_name": "label",
"id": "010c0ef886ca429fb30f1532da83818c",
"to_name": "text",
"type": "labels",
"value": {
"end": 10882,
"labels": [
"ANALYSIS"
],
"start": 10708,
"text": "The belief must be held in good (1) [1961] 2 S.C.R. 241.\n (2) [1967] 1 S.C. R. 596.\n 988 faith:it cannot be merely a pretence."
}
},
{
"from_name": "label",
"id": "a36ffa4d00014e7fb35572d431a2029a",
"to_name": "text",
"type": "labels",
"value": {
"end": 11135,
"labels": [
"ANALYSIS"
],
"start": 10883,
"text": "To put it differently it is open to the Court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the section."
}
},
{
"from_name": "label",
"id": "db77cf2c94074ce098a046ba902e2bc5",
"to_name": "text",
"type": "labels",
"value": {
"end": 11284,
"labels": [
"ANALYSIS"
],
"start": 11136,
"text": "To this limited extent, the action of the Income-tax Officer in starting proceedings under s. 34 of the Act is open to challenge in a court of law.\""
}
},
{
"from_name": "label",
"id": "8e98308238b74d95afc08c1388c7f696",
"to_name": "text",
"type": "labels",
"value": {
"end": 11658,
"labels": [
"ANALYSIS"
],
"start": 11284,
"text": "\nIt is clear from the affidavits filed in the Court of First Up stance that the Income-tax Officer had received information relying upon which he had reason to believe that the assessee had not disclosed fully and truly all material facts necessary for the assessment and in consequence of non-disclosure-of that information, income chargeable to tax had escaped assessment."
}
},
{
"from_name": "label",
"id": "8f4e1d2cc3924b53a22dd3c76ac3d877",
"to_name": "text",
"type": "labels",
"value": {
"end": 11926,
"labels": [
"ANALYSIS"
],
"start": 11659,
"text": "In his affidavit, Income-tax Officer stated : \"A scrutiny of the money-lending 'statements' filed by the assessee for the years ended 31-3-50 and 31-3-51 revealed that there were large investments made by the assessee in his money-lending business in those two years."
}
},
{
"from_name": "label",
"id": "a0d87984dc654bb0a0e2390bd601c984",
"to_name": "text",
"type": "labels",
"value": {
"end": 12178,
"labels": [
"ANALYSIS"
],
"start": 11927,
"text": "The assessee did not file balance sheets for the said two years, or for the earlier assessment years and consequently it was not clear from the statements filed by him, how he could make heavy investments in money-lending business in those two years.\""
}
},
{
"from_name": "label",
"id": "faab418f157446cbba87adb208f7bbd1",
"to_name": "text",
"type": "labels",
"value": {
"end": 12895,
"labels": [
"ANALYSIS"
],
"start": 12179,
"text": "The Income-tax Officer also stated that in the year of account 1949-50 the total investments in money-lending business had increased by Rs. 1,33,000/- and in the following year by Rs. 49,000/and the plea of the assessee that growth in the investments of the assessee in those years was mainly due to \"the cash balance\" he by the manager out of his share received on partition between his and his brothers, and cash gifts from his father-in-law which were till then kept uninvested even in the money-lending business, was not supported by any evidence, that the assessee had suppressed the account books for the periods prior to April 1, 1949, and that the assessee had not produced the deed of partition relied upon."
}
},
{
"from_name": "label",
"id": "901024533d234307b6dcc1d57ebea19d",
"to_name": "text",
"type": "labels",
"value": {
"end": 13827,
"labels": [
"ANALYSIS"
],
"start": 12896,
"text": "According to the Income-tax Officer, the net wealth of the family ,on April 1, 1937, inclusive of investments in the money-lending business was less than Rs. 50,000/- and the investments made by the assessee in money-lending business were approximately of the ,order of Rs. 21,000/-, that the assessments made on the family from 1937-38 till 1948-49 showed that the assessee's aggregate income for those years was Rs. 30,000/- , that taking into account the manager's professional income and the agricultural income of the assessee, the aggregate could not exceed Rs. one lakh, and that possession of large wealth on April 1, 1949 which was not explained justified him in inferring that there \"was escapement 989 assessment of huge income or in any event it had resulted in under-assessment on account of the failure of the assessee in not disclosing the material facts fully and truly for the assessment years 1940-41 to 1949-50.\""
}
},
{
"from_name": "label",
"id": "7624ce1ff8d249c895099c4c70e3415f",
"to_name": "text",
"type": "labels",
"value": {
"end": 14222,
"labels": [
"ANALYSIS"
],
"start": 13827,
"text": "\nThe averments made by the Income-tax Officer in his affidavit which have been accepted by the Court of First Instance, prima facie, establish that the Income-tax Officer had reason to believe that by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment, income chargeable to income-tax has escaped assessment."
}
},
{
"from_name": "label",
"id": "af14066ef55b47a1bca463a540714b2f",
"to_name": "text",
"type": "labels",
"value": {
"end": 14710,
"labels": [
"ANALYSIS"
],
"start": 14222,
"text": "\nIt was urged on behalf of the assessee that year after year account books and statements of account were produced by the assessee before the Income-tax Officer, and the Income-tax Officer had computed to taxable income on the materials furnished, no case for exercising the power of the Income- tax Officer under s. 34 was made out, since power to re- assess may not be exercised merely because on the same evidence the Income-tax Officer or his successor entertains a different opinion."
}
},
{
"from_name": "label",
"id": "0d91c6a6ddd248968a4bfbd5956368d7",
"to_name": "text",
"type": "labels",
"value": {
"end": 14760,
"labels": [
"ANALYSIS"
],
"start": 14711,
"text": "In our view there is no force in this contention."
}
},
{
"from_name": "label",
"id": "2964a490b7f1432d8e44090108c76b52",
"to_name": "text",
"type": "labels",
"value": {
"end": 14981,
"labels": [
"ANALYSIS"
],
"start": 14761,
"text": "From the affidavit of the Income-tax Officer it clearly appears that there had been considerable increase since 1938 in the investments in the money-lending transactions of the assessee and in the wealth of the assessee."
}
},
{
"from_name": "label",
"id": "2eaaaf86757d42f8bee5c9c6f1120b12",
"to_name": "text",
"type": "labels",
"value": {
"end": 15074,
"labels": [
"ANALYSIS"
],
"start": 14982,
"text": "The Income-tax Officer was not seeking to re- assess the income on a mere change of opinion."
}
},
{
"from_name": "label",
"id": "abaabc2ad9ce49aa89d4938cf67d6f69",
"to_name": "text",
"type": "labels",
"value": {
"end": 15188,
"labels": [
"ANALYSIS"
],
"start": 15075,
"text": "The increase in the wealth discovered was wholly disproportionate to the known sources of income of the assessee."
}
},
{
"from_name": "label",
"id": "86046a6d8a3242ffad75e5008e275aaf",
"to_name": "text",
"type": "labels",
"value": {
"end": 15408,
"labels": [
"ANALYSIS"
],
"start": 15189,
"text": "That was prima facie evidence on which he had reason to believe that the assessee had omitted to disclose fully and truly all material facts and that in consequence of such non- disclosure income had escaped assessment."
}
},
{
"from_name": "label",
"id": "3ad4662d0bcc44279949ec4e48ffa4d6",
"to_name": "text",
"type": "labels",
"value": {
"end": 15982,
"labels": [
"ANALYSIS"
],
"start": 15409,
"text": "The Income-tax Officer has said that no attempt was made by the assessee to furnish some reasonable proof of the source of the addi- tional wealth : the partition deed was not produced; the books of account prior to 1948-49 were withheld on the plea that all the books were lost; no evidence was tendered to show that the fatherin-law of the manager was possessed of sufficient means to give and did give any large cash amounts to him; and there was also no explanation why a large amount exceeding a lakh of rupees was not invested in the money- lending or other business."
}
},
{
"from_name": "label",
"id": "29e72fe751f948a8bd118dd650952fbb",
"to_name": "text",
"type": "labels",
"value": {
"end": 16212,
"labels": [
"ANALYSIS"
],
"start": 15982,
"text": "\nThe Income-tax Officer had therefore prima facie reason to believe that information material to the assessment had been withheld, and that on account of withholding of that information income liable to tax had escaped assessment."
}
},
{
"from_name": "label",
"id": "10de1b790121453e91fdc7a135e559a8",
"to_name": "text",
"type": "labels",
"value": {
"end": 16382,
"labels": [
"ANALYSIS"
],
"start": 16212,
"text": "\nFrom the mere production of the books of account it cannot be inferred that there had been full disclosure of the material facts necessary for the purpose of assessment."
}
},
{
"from_name": "label",
"id": "ce76bbdc23164018a5a87b13cb3d1e0b",
"to_name": "text",
"type": "labels",
"value": {
"end": 16673,
"labels": [
"ANALYSIS"
],
"start": 16383,
"text": "The terms of the Explanation are too plain to permit an argument being reasonably advanced, that the duty of the assessee to disclose fully and truly all material facts is discharged when he produces the books of account or other evidence which has a material 990 bearing on the assessment."
}
},
{
"from_name": "label",
"id": "a795f0dc5ab64a28be301e2eaeef49bb",
"to_name": "text",
"type": "labels",
"value": {
"end": 16972,
"labels": [
"ANALYSIS"
],
"start": 16674,
"text": "It is clearly implicit in the terms of ss. 23 and 34 of the Income-tax Act that the assessee is under a duty to disclose fully and truly material facts necessary for the assessment of the year, and that the duty is not discharged merely by the production of the books of accounts or other evidence."
}
},
{
"from_name": "label",
"id": "02a8bbd2e97d48cf8b036af7e5e4edc7",
"to_name": "text",
"type": "labels",
"value": {
"end": 17138,
"labels": [
"ANALYSIS"
],
"start": 16973,
"text": "It is the duty of the assessee to bring to the notice of the Income-tax Officer particular items in the books of account or portions of documents which are relevant."
}
},
{
"from_name": "label",
"id": "70a333ffac1c46ceaa5ab987ee1a2c40",
"to_name": "text",
"type": "labels",
"value": {
"end": 17406,
"labels": [
"ANALYSIS"
],
"start": 17139,
"text": "Even if it be assumed that from the books produced the Income-tax Officer, if he had been circumspect, could have found out the truth, the Income-tax Officer may not on that account be precluded from exercising the power to assess income which had escaped assessment."
}
},
{
"from_name": "label",
"id": "845fb691d4a540e4b7a615cf5ceee4ea",
"to_name": "text",
"type": "labels",
"value": {
"end": 17772,
"labels": [
"ANALYSIS"
],
"start": 17406,
"text": "\nIt was urged that since the High Court in appeal did not de- cide whether any primary facts on which the determination of the issue of reasonable belief in non-disclosure of material facts necessary for the assessment of the previous year and escapement of tax in consequence thereof depended, were not disclosed, the judgment of the High Court should be set aside."
}
},
{
"from_name": "label",
"id": "21c9d917b4aa40e0a1436736a2dcc721",
"to_name": "text",
"type": "labels",
"value": {
"end": 18196,
"labels": [
"ANALYSIS"
],
"start": 17773,
"text": "The learned Trial Judge has dealt with in detail the affidavits of both the assessee and the In come-tax Officer and has come to the conclusion that there was prima facie evidence of non-disclosure fully and truly of all material facts necessary for the assessment and on the materials placed before the Income-tax Officer he had reason to believe that as a consequence of that non-disclosure income had escaped assessment."
}
},
{
"from_name": "label",
"id": "8c68f264cd644c4b9cd04a88e802b9fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 18582,
"labels": [
"ANALYSIS"
],
"start": 18197,
"text": "The High Court in appeal after referring to the judgment in Calcutta Discount Company's case() observed \"......without the enquiry being held by the concerned Income-tax Officer it is not possible, on the material on record, to decide whether or not the assessee omitted to or failed to disclose fully and truly all material facts necessary for his assessment for the respective year.\""
}
},
{
"from_name": "label",
"id": "53ade103b4e44b9582c22295605f661d",
"to_name": "text",
"type": "labels",
"value": {
"end": 18937,
"labels": [
"RATIO"
],
"start": 18582,
"text": "\nThe High Court has pointed out that no final decision about failure to disclose fully and truly all material facts bearing on the assessment of income and consequent escapement of income from assessment and tax could be recorded in the proceedings before them It certainly was not within the province of the High Court to finally determine that question."
}
},
{
"from_name": "label",
"id": "36d123a0c91f4174be6f364181c2e428",
"to_name": "text",
"type": "labels",
"value": {
"end": 19246,
"labels": [
"RATIO"
],
"start": 18938,
"text": "The High Court was only concerned to decide whether the conditions which invested the Income-tax Officer with power to re-open the assessment did exist, and there is nothing in the judgment of the High Court which indicates that they dissagreed with the view of the Trial Court that the conditions did exist "
}
},
{
"from_name": "label",
"id": "52a85a30ab3944db9059ae44d56b3756",
"to_name": "text",
"type": "labels",
"value": {
"end": 19304,
"labels": [
"RPC"
],
"start": 19246,
"text": "These appeals therefore fail and are dismissed with costs."
}
},
{
"from_name": "label",
"id": "49c9b7d16d934c5cb8219981e68247ce",
"to_name": "text",
"type": "labels",
"value": {
"end": 19335,
"labels": [
"RPC"
],
"start": 19304,
"text": "\nThere will be one hearing fee."
}
},
{
"from_name": "label",
"id": "1529205b265f4d63aefccff063fcb5ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 19354,
"labels": [
"RPC"
],
"start": 19335,
"text": "\nAppeals dismissed."
}
},
{
"from_name": "label",
"id": "3d068d4edecc4a8f84a64e82e574a2fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 19388,
"labels": [
"NONE"
],
"start": 19354,
"text": "\nY.P.\n(1) [1961] 2 S.C.R. 241.\n991"
}
}
]
}
] | 1,793 | {
"text": "PETITIONER:\nKANTAMANI VENKATA NARAYANA & SONS\n\n Vs.\n\nRESPONDENT:\nFIRST ADDITIONAL INCOME-TAX OFFICER,RAJAHMUNDRY\n\nDATE OF JUDGMENT:\n27/10/1966\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nRAMASWAMI, V.\nBHARGAVA, VISHISHTHA\n\nCITATION:\n\n1967 AIR 587 1967 SCR (1) 984\n\nCITATOR INFO : (14)\n (11)\nF 1970 SC1011\n\nRF 1975 SC 703\n\nACT: s. 34--Escaped\nIncome-tax Act (11 of 1922), to state clause-\nassessment--Notice, whether necessary\nGrounds of challenge.\n\nHEADNOTE:\nDuring the assessment proceedings of a company, the Income-\ntax Officer discovered that there. was a large accretion to\nthe wealth of the assessee, which had not been disclosed in\nthe assessment proceedings of the assessee, and the, Officer\nissued notices under s. 34 for the reassessment of income\nduring that period. The assessee filed writ petitions in\nthe High Court, in reply to which the Income-tax Officer\nfiled affidavits stating that relying on the information\nreceived by him, he had reason to believe that the assessee\nhad not disclosed fully and truly all material facts and in\nconsequence, income chargeable to tax had escaped\nassessment. The writ petitions were rejected and the order\nwas confirmed in appeal by the High Court. In appeals by\nthe assessee, this Court,\nHELD : The appeals must be dismissed.\nFrom the, affidavit of the Income-tax Officer it clearly\nappeared that there had been considerable increase in the\ninvestments in the transactions and the wealth of the\nassessee. The Income-tax Officer was not seeking to\nreassess the income on a mere change of opinion. [989 B]\nThe Income-tax Officer had prima facie reason to believe\nthat information material to assessment had been withheld,\nand that on account of withholding of that information\nincome liable to tax had escaped assessment. From the mere\nproduction of the books of account., it could not be\ninferred that there had been full disclosure of the material\nfacts necessary for the purpose of assessment. Sections 23\nand 24 of the Act lay that the assessee is under a duty to\ndisclose fully and truly material facts necessary for the\nassessment of the year and that duty is not discharged\nmerely by the production of the books of accounts or other\nevidence. It is the duty of the assessee to bring to the\n\nnotice of the Income-tax Officer particular items in the\nbooks of account or portions of documents which are\nrelevant. Even if it be assumed that from the books\nproduced, the Incometax Officer, if he had been circumspect,\ncould have found out the truth, the Income-tax Officer may\nnot on that account be precluded from exercising the power\nto assess income which had escaped assessment. [989 G990 B]\nIt is not necessary or imperative that a notice under s. 34\nmust specify under which of the two clauses-cl. (a) or cl.\n(b) of sub-s. (1) of s. 34, the notice is issued. [986 A]\nP. R. Mukherjee v. Commissioner of Income-tax, West\nBengal, 30 I.T.R. 535, approved.\nTwo conditions precedent must co-exist, before a notice\nunder s. 34 (1)(a) of the Act may be issued : the income-tax\nOfficer must have reason to believe (1) that income, profits\nor gains had been under assessed, and (2) that such under\nassessment was due to non-disclosure of material facts by\nthe assessee. Where the Income-tax Officer has prima\n985\nfacie reasonable grounds for believing that there has been a\nnon-disclosure of primary material fact, that by itself\ngives him jurisdiction to issue notice under s. 34 and the\nadequacy or otherwise of the grounds of such belief is not\nopen to investigation by the Court. [1987 C]\nCalcutta Discount Company Ltd. v. Income-tax Officer,\nCompanies District 1 [1961] 2 S.C.R. 241 and S. Narayanappa\nv. The Commissioner of Income-tax, Bangalore [1967] 1 S.C.R.\n596 relied on.\n\nJUDGMENT:CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 154, to 165 of 1966.\nAppeals by special leave from the judgment and order dated February 3, 1965 of the Andhra Pradesh High Court in Writ Appeals Nos. 117 to 128 of 1964.\nP. Ram Reddy and A. V. V. Nair, for the appellants (in all the appeals).\nS. V. Gupte, Solicitor-General, R. Ganapathy Iyer and R.\nN. Sachthey, for respondent (in all the appeals).\nThe Judgment of the Court was delivered by Shah, J. M/s. Kantamani Venkata Narayana & Sons-hereinafter referred to as 'the assessee' is a Hindu undivided family, which was assessed to tax on income derived principally from money--lending. In the course of proceedings for assessment of a private limited company styled \"Motu Industries Ltd.,\"\nthe Incometax Officer, Rajahmundry discovered that there was a large accretion to the wealth of the assessee which had not been disclosed in proceedings for its assessment. On March 12, 1959, the Income-tax Officer issued a notice seeking to reopen the assessment for the year 1950-51. The assessee filed a return under protest. On March 14, 1960 the Income-tax Officer issued notice of re-assessment for the year 1951-52, and on December 19, 1960, the Income-tax Officer intimated the reasons that had prompted him to issue the notices of re-assessment. On March 24, 1962 the Income- tax Officer issued notices under s. 34 for re-assessment of income of the assessee for the years 1940-41 to 1949-50.\nThe assessee then presented petitions in the High Court of Andhra Pradesh for writs of prohibition directing the Income-tax Officer to refrain from proceeding in pursuance of the notices for the assessment years 1940-41 to 1949-50 and 1950-51 and 1951-52. A single Judge of the High Court rejected the petitions and the order was confirmed in appeal by a Division Bench of the High Court. The assessee has appealed with special leave.\nThe notice issued by the Income-tax Officer did not specifically refer to s. 34(1)(a) of the Income-tax Act : it did not set out the clause under which it was issued. But on that account the proceeding under s.. 34 is -not vitiated. It was held by the Calcutta Sup.C.1.166-18 986 High Court in P. R. Mukherjee v. Commissioner of Income-tax West Bengal(1), that it is not necessary or imperative that a notice -under s. 34 must specify under which of the two clauses-cl. (a)an cl. (b) of sub-s. (1) of s. 34, the notice is issued. The main notice to be issued in a case under s.\n34 is the notice under s. 22(2), and s. 34 merely authorises the issue of such a notice.\nThe proceedings for re-assessment cover a period of 12 years 194041 to 1951-52. Section 34 of the Income-tax Act has under gone some changes during that period, but the basic scheme of the section has remained substantially the same.\nPower to re-assess income under s. 34(1) as amended by Act 7 of 1939 could be exercised if \"definite information\" had \"come into\" the possession of the Income-tax Officer, and in consequence of such information it was discovered that income chargeable to tax had escaped assessment By the Income-tax and Business Profits Tax (Amendment) Act 4 of 1948, s. 34(1) was recast to read as follows - (1) If- (a) the Income-tax Officer has reason to believe that by reason of the omission or 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 (b) notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income-tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to income-tax have escaped assessment for any year, or have been under-assessed, or assessed at too low a rate, he may in cases falling under clause (a) at any time and in cases falling under clause (b) at the time within four years of the end of that year, serve on the assessee, .... a notice containing all or any of the -requirements 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 (1) 30 I.T.R. 535.\n 987 An Explanation was also added which states \"Explanation Production before the Income-tax Officer of account books or other evidence from which material facts could with due diligence have been discovered by the Income- tax Officer will not necessarily amount to disclosure within the meaning of this section.\"\nSince on the matter canvassed in these appeals there is no material change in the section, we will only refer to the section as amended by Act 48 of 1948.\nThis Court in Calcutta Discount Company Ltd. v. Income-tax officer, Companies District 1 and Another(1) observed that before the Income-tax Officer may issue a notice under s.\n34(1) (a) of the Indian Income-tax Act, two conditions precedent must co-exist : the Income-tax Officer must have reason to believe (1) that income, profits or gains had been under-assessed, and (2) that such under assessment was due to non-disclosure of material facts by the assessee. The Court further held that where the Income-tax Officer has prima facie reasonable grounds for believing that there has been a non-disclosure of a primary material fact, that by itself gives him jurisdiction to issue a notice under s. 34 of the Act, and the adequacy or otherwise of the grounds of such belief is not open to investigation by the Court.\nIn a recent judgement of this Court in S. Narayanappa & Others v. The Commissioner of Income-tax, Bangalore,(2) Ramaswami J., speaking for the Court observed: \" . . . the legal position is that if there are in fact some reasonable grounds for the Income-tax Officer to believe that there had been any non-disclosure as regards any fact, which could have a material bearing on the question of under-assessment that would be sufficient to give jurisdiction to the Income- tax Officer to issue the notice under s. 34.\n Whether these grounds are adequate or not is not a matter for the Court to investigate. In other words, the sufficiency of the grounds which induced the Income-tax Officer to act is not a justiciable issue. It is of course open for the assessee to contend that the Incometax Officer did not hold the belief that there had been such non-disclosure. In other words, the existence of the belief can be challenged by the assessee but not the sufficiency of the reasons for the belief. Again the expression $treason to believe\" in section 34 of the Income-tax Act does not mean a purely subjective satisfaction on the part of the Income-tax Officer. The belief must be held in good (1) [1961] 2 S.C.R. 241.\n (2) [1967] 1 S.C. R. 596.\n 988 faith:it cannot be merely a pretence. To put it differently it is open to the Court to examine the question whether the reasons for the belief have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant to the purpose of the section. To this limited extent, the action of the Income-tax Officer in starting proceedings under s. 34 of the Act is open to challenge in a court of law.\"\nIt is clear from the affidavits filed in the Court of First Up stance that the Income-tax Officer had received information relying upon which he had reason to believe that the assessee had not disclosed fully and truly all material facts necessary for the assessment and in consequence of non-disclosure-of that information, income chargeable to tax had escaped assessment. In his affidavit, Income-tax Officer stated : \"A scrutiny of the money-lending 'statements' filed by the assessee for the years ended 31-3-50 and 31-3-51 revealed that there were large investments made by the assessee in his money-lending business in those two years. The assessee did not file balance sheets for the said two years, or for the earlier assessment years and consequently it was not clear from the statements filed by him, how he could make heavy investments in money-lending business in those two years.\"\nThe Income-tax Officer also stated that in the year of account 1949-50 the total investments in money-lending business had increased by Rs. 1,33,000/- and in the following year by Rs. 49,000/and the plea of the assessee that growth in the investments of the assessee in those years was mainly due to \"the cash balance\" he by the manager out of his share received on partition between his and his brothers, and cash gifts from his father-in-law which were till then kept uninvested even in the money-lending business, was not supported by any evidence, that the assessee had suppressed the account books for the periods prior to April 1, 1949, and that the assessee had not produced the deed of partition relied upon. According to the Income-tax Officer, the net wealth of the family ,on April 1, 1937, inclusive of investments in the money-lending business was less than Rs. 50,000/- and the investments made by the assessee in money-lending business were approximately of the ,order of Rs. 21,000/-, that the assessments made on the family from 1937-38 till 1948-49 showed that the assessee's aggregate income for those years was Rs. 30,000/- , that taking into account the manager's professional income and the agricultural income of the assessee, the aggregate could not exceed Rs. one lakh, and that possession of large wealth on April 1, 1949 which was not explained justified him in inferring that there \"was escapement 989 assessment of huge income or in any event it had resulted in under-assessment on account of the failure of the assessee in not disclosing the material facts fully and truly for the assessment years 1940-41 to 1949-50.\"\nThe averments made by the Income-tax Officer in his affidavit which have been accepted by the Court of First Instance, prima facie, establish that the Income-tax Officer had reason to believe that by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment, income chargeable to income-tax has escaped assessment.\nIt was urged on behalf of the assessee that year after year account books and statements of account were produced by the assessee before the Income-tax Officer, and the Income-tax Officer had computed to taxable income on the materials furnished, no case for exercising the power of the Income- tax Officer under s. 34 was made out, since power to re- assess may not be exercised merely because on the same evidence the Income-tax Officer or his successor entertains a different opinion. In our view there is no force in this contention. From the affidavit of the Income-tax Officer it clearly appears that there had been considerable increase since 1938 in the investments in the money-lending transactions of the assessee and in the wealth of the assessee. The Income-tax Officer was not seeking to re- assess the income on a mere change of opinion. The increase in the wealth discovered was wholly disproportionate to the known sources of income of the assessee. That was prima facie evidence on which he had reason to believe that the assessee had omitted to disclose fully and truly all material facts and that in consequence of such non- disclosure income had escaped assessment. The Income-tax Officer has said that no attempt was made by the assessee to furnish some reasonable proof of the source of the addi- tional wealth : the partition deed was not produced; the books of account prior to 1948-49 were withheld on the plea that all the books were lost; no evidence was tendered to show that the fatherin-law of the manager was possessed of sufficient means to give and did give any large cash amounts to him; and there was also no explanation why a large amount exceeding a lakh of rupees was not invested in the money- lending or other business.\nThe Income-tax Officer had therefore prima facie reason to believe that information material to the assessment had been withheld, and that on account of withholding of that information income liable to tax had escaped assessment.\nFrom the mere production of the books of account it cannot be inferred that there had been full disclosure of the material facts necessary for the purpose of assessment. The terms of the Explanation are too plain to permit an argument being reasonably advanced, that the duty of the assessee to disclose fully and truly all material facts is discharged when he produces the books of account or other evidence which has a material 990 bearing on the assessment. It is clearly implicit in the terms of ss. 23 and 34 of the Income-tax Act that the assessee is under a duty to disclose fully and truly material facts necessary for the assessment of the year, and that the duty is not discharged merely by the production of the books of accounts or other evidence. It is the duty of the assessee to bring to the notice of the Income-tax Officer particular items in the books of account or portions of documents which are relevant. Even if it be assumed that from the books produced the Income-tax Officer, if he had been circumspect, could have found out the truth, the Income-tax Officer may not on that account be precluded from exercising the power to assess income which had escaped assessment.\nIt was urged that since the High Court in appeal did not de- cide whether any primary facts on which the determination of the issue of reasonable belief in non-disclosure of material facts necessary for the assessment of the previous year and escapement of tax in consequence thereof depended, were not disclosed, the judgment of the High Court should be set aside. The learned Trial Judge has dealt with in detail the affidavits of both the assessee and the In come-tax Officer and has come to the conclusion that there was prima facie evidence of non-disclosure fully and truly of all material facts necessary for the assessment and on the materials placed before the Income-tax Officer he had reason to believe that as a consequence of that non-disclosure income had escaped assessment. The High Court in appeal after referring to the judgment in Calcutta Discount Company's case() observed \"......without the enquiry being held by the concerned Income-tax Officer it is not possible, on the material on record, to decide whether or not the assessee omitted to or failed to disclose fully and truly all material facts necessary for his assessment for the respective year.\"\nThe High Court has pointed out that no final decision about failure to disclose fully and truly all material facts bearing on the assessment of income and consequent escapement of income from assessment and tax could be recorded in the proceedings before them It certainly was not within the province of the High Court to finally determine that question. The High Court was only concerned to decide whether the conditions which invested the Income-tax Officer with power to re-open the assessment did exist, and there is nothing in the judgment of the High Court which indicates that they dissagreed with the view of the Trial Court that the conditions did exist These appeals therefore fail and are dismissed with costs.\nThere will be one hearing fee.\nAppeals dismissed.\nY.P.\n(1) [1961] 2 S.C.R. 241.\n991 "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "0495edf022594a85b97ebd4229c37675",
"to_name": null,
"type": null,
"value": {
"end": 183,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,\n ROURKELA.\n\n Present: Sri P.K. Sethi, LL.M.,\n J.M.F.C., Rourkela."
}
},
{
"from_name": null,
"id": "2f204b69a0e44acc8b57d8b3809174bc",
"to_name": null,
"type": null,
"value": {
"end": 305,
"labels": [
"PREAMBLE"
],
"start": 213,
"text": "Dated this the 25th day of May, 2015\n\n2(a)CC No. 1171 of 2002\n Trial No. 814 of 2013\n\nSTATE"
}
},
{
"from_name": null,
"id": "3add34dda6434e3190f10d20f1e43969",
"to_name": null,
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"value": {
"end": 319,
"labels": [
"PREAMBLE"
],
"start": 307,
"text": "............"
}
},
{
"from_name": null,
"id": "79c51a3642084aaaa86e16e3143fa837",
"to_name": null,
"type": null,
"value": {
"end": 384,
"labels": [
"PREAMBLE"
],
"start": 320,
"text": "Prosecution\n\n -VERSUS -\n\nMariyam Majhi, aged about 42 yrs."
}
},
{
"from_name": null,
"id": "0b822f7379df42fdaa3993df5ab5e908",
"to_name": null,
"type": null,
"value": {
"end": 763,
"labels": [
"PREAMBLE"
],
"start": 384,
"text": "\nW/o- Samkar Majhi\nAT- Nayabazar,\nP.S.- Plantsite,\nDistrict- Sundargarh.\n\n ............. Accused\n\nOffence U/s. 47 (a) and (f) of the B & O Excise Act\n\nCounsel for the prosecution : Suresh Ch. Majhi,\n A.P.P.,Rourkela\n\nCounsel for the defence : B.N. Samanta &\n Associates\n\n "
}
},
{
"from_name": null,
"id": "bd7399812ae647ae9e46d3c1af8adc10",
"to_name": null,
"type": null,
"value": {
"end": 918,
"labels": [
"PREAMBLE"
],
"start": 763,
"text": "Date of conclusion of argument: 23.05.2015.\n Date of pronouncement of judgment: 25.05.2015.\n\n J U D G M E N T\n "
}
},
{
"from_name": null,
"id": "ef738d71d2164539b4daee254bd2d98d",
"to_name": null,
"type": null,
"value": {
"end": 1056,
"labels": [
"FAC"
],
"start": 918,
"text": "The accused person namely Mariyam Majhi stands charged for the commission of offence u/s. 47 (a) and (f) of the Bihar & Orissa Excise Act."
}
},
{
"from_name": null,
"id": "1fb2f7ea96094a2fbd71f242976817cf",
"to_name": null,
"type": null,
"value": {
"end": 1113,
"labels": [
"FAC"
],
"start": 1056,
"text": "\nThe accused is on bail and is absent in the Court today."
}
},
{
"from_name": null,
"id": "bf9526ea4b0c47ee8371328cf4556f8d",
"to_name": null,
"type": null,
"value": {
"end": 1511,
"labels": [
"FAC"
],
"start": 1114,
"text": "2. Briefly stated, the case of the prosecution is that on 22.02.2002 at about 10.45 AM at Nayabazar area while G. Raxa, S.I. Of Excise, EI and EB , Sambalpur was performing patrolling duty along with other official staffs, they conducted raid in the house of the accused and recovered two earthen pots each containing F.M wash , one steel head and one earthen pot containing some liquid substance."
}
},
{
"from_name": null,
"id": "c638755a880649f18314c02ae9368f04",
"to_name": null,
"type": null,
"value": {
"end": 1574,
"labels": [
"FAC"
],
"start": 1511,
"text": "Thereafter he Conducted hydrometer and blue litmus paper tests."
}
},
{
"from_name": null,
"id": "8514647b75be4efd9b72c59294de4197",
"to_name": null,
"type": null,
"value": {
"end": 1736,
"labels": [
"FAC"
],
"start": 1575,
"text": "After conducting above tests and from the distillery experience it was ascertained that the above contraband articles were nothing but F.M. Wash and I.D. Liquor."
}
},
{
"from_name": null,
"id": "7923476f2a9545b9940933dce6ae5bd3",
"to_name": null,
"type": null,
"value": {
"end": 1849,
"labels": [
"FAC"
],
"start": 1737,
"text": "On measurement the total amount of F.M.\nWash and I.D. Liquor were found to be 40 Kgs and 10 litres respectively."
}
},
{
"from_name": null,
"id": "feb784f4a3604c05ade490c081513a9c",
"to_name": null,
"type": null,
"value": {
"end": 1939,
"labels": [
"FAC"
],
"start": 1850,
"text": "On demand, the accused could not produce any authority or license in respect of the same."
}
},
{
"from_name": null,
"id": "2fe60e765816425fb7ade99777cfe6a5",
"to_name": null,
"type": null,
"value": {
"end": 2044,
"labels": [
"FAC"
],
"start": 1940,
"text": "Then sample of F.M wash and I.D. Liquor were kept in two separate bottles and seizure list was prepared."
}
},
{
"from_name": null,
"id": "6d9b13a4fd3444938a601e037495ab63",
"to_name": null,
"type": null,
"value": {
"end": 2175,
"labels": [
"FAC"
],
"start": 2045,
"text": "After completion of inquiry, he submitted P.R. against the accused u/s. 47 (a) and (f) of the B & O Excise Act to face her trial ."
}
},
{
"from_name": null,
"id": "3a0b676f61e948e493a67a9194404f02",
"to_name": null,
"type": null,
"value": {
"end": 2193,
"labels": [
"FAC"
],
"start": 2176,
"text": "Hence, this case."
}
},
{
"from_name": null,
"id": "63e1a7ee681143d3a5594e5c7936d968",
"to_name": null,
"type": null,
"value": {
"end": 2265,
"labels": [
"FAC"
],
"start": 2194,
"text": "3. The Plea of the defence is of outright denial and false implication."
}
},
{
"from_name": null,
"id": "f6f2d230194d4816a85124413a4f639d",
"to_name": null,
"type": null,
"value": {
"end": 2337,
"labels": [
"ISSUE"
],
"start": 2266,
"text": "4. The following points arose for determination in the present case: I."
}
},
{
"from_name": null,
"id": "765c8c19bb5e4694bcf41971ea9bedca",
"to_name": null,
"type": null,
"value": {
"end": 2588,
"labels": [
"ISSUE"
],
"start": 2338,
"text": "Whether 22.02.2002 at about 10.45 AM at Nayabazar area , Mariyam Majhi, the accused, was detected by the Excise officials to be in exclusive and conscious possession of 40 Kgs of F.M wash and 10 litres of I.D. liquor without any license or authority?"
}
},
{
"from_name": null,
"id": "c4a15f9c8322409e84794827c87fc5cd",
"to_name": null,
"type": null,
"value": {
"end": 2596,
"labels": [
"ISSUE"
],
"start": 2588,
"text": "\n II."
}
},
{
"from_name": null,
"id": "20e5c1d0728c4efe8ae38c9cb0a14514",
"to_name": null,
"type": null,
"value": {
"end": 2675,
"labels": [
"ISSUE"
],
"start": 2597,
"text": "Whether the seized articles were nothing but F.M wash and I.D.\n Liquor?"
}
},
{
"from_name": null,
"id": "a47d33775b7b4488bc72cd007c50e1fb",
"to_name": null,
"type": null,
"value": {
"end": 2852,
"labels": [
"ANALYSIS"
],
"start": 2677,
"text": "5. In order to substantiate its case the prosecution has examined 2 witnesses in all out of whom P.W.2, is the S.I of Excise, P.W.1, is the independent witness to the seizure."
}
},
{
"from_name": null,
"id": "894326221d454d108c18282bc98dfc9f",
"to_name": null,
"type": null,
"value": {
"end": 2966,
"labels": [
"ANALYSIS"
],
"start": 2853,
"text": "Rest one witness has been declined by the learned A.P.P. Ext.s 1 to 1/ 2 are marked on behalf of the prosecution."
}
},
{
"from_name": null,
"id": "1f2c316bc9694e419ccde44be38c31b4",
"to_name": null,
"type": null,
"value": {
"end": 3080,
"labels": [
"ANALYSIS"
],
"start": 2967,
"text": "On the other hand, defence has neither examined any witnesses nor marked any documents as exhibits on its behalf."
}
},
{
"from_name": null,
"id": "c9ea1c42571e4390aa02781162255148",
"to_name": null,
"type": null,
"value": {
"end": 3255,
"labels": [
"ARG_RESPONDENT"
],
"start": 3081,
"text": "6. The learned defence counsel has argued that the case is falsely foisted against the accused and no such occurrence took place to which the learned APP vehemently objected."
}
},
{
"from_name": null,
"id": "09f924ceb38a4d418a4d67d46be922fb",
"to_name": null,
"type": null,
"value": {
"end": 3416,
"labels": [
"ANALYSIS"
],
"start": 3256,
"text": "7. At the outset, it is to be noted that P.W.1, the only independent witness examined on behalf of the prosecution does not support the case of the Prosecution."
}
},
{
"from_name": null,
"id": "59211b5c8b9c4d849ef35e77044f2555",
"to_name": null,
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"value": {
"end": 3614,
"labels": [
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],
"start": 3417,
"text": "He merely admits his signature on the seizure list which is proved as Ext.1 and does not whisper a word regarding the possession or the seizure of the alleged liquor and F.M. Wash from the accused."
}
},
{
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"id": "0c9cbbd4b206493d91ccfde2cdf91376",
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"labels": [
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"start": 3615,
"text": "Testimony of P.W.2, the Excise Constable, reveals that on 22.02.2002 at about 10.45 AM at Nayabazar area while he was performing patrolling duty along with other official staffs, after observing all the formalities they conducted raid in the house of the accused and recovered two earthen pots each containing F.M wash , one steel head and one earthen pot containing some liquid substance."
}
},
{
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"id": "63e941c885c649b798f408239e3fa7ce",
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"value": {
"end": 4070,
"labels": [
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],
"start": 4004,
"text": "\nThereafter S.I. conducted hydrometer and blue litmus paper tests."
}
},
{
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"id": "94600fd448144d0bb0023e33e5f29c16",
"to_name": null,
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"value": {
"end": 4232,
"labels": [
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],
"start": 4071,
"text": "After conducting above tests and from the distillery experience it was ascertained that the above contraband articles were nothing but F.M. Wash and I.D.\nLiquor."
}
},
{
"from_name": null,
"id": "9ea78b0169f544efb4e2b999bd04e923",
"to_name": null,
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"labels": [
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],
"start": 4233,
"text": "On measurement the total amount of F.M. Wash and I.D. Liquor were found to be 40 Kgs and 10 litres respectively."
}
},
{
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"id": "6116852d8f134574942667d5d58e76f7",
"to_name": null,
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"value": {
"end": 4435,
"labels": [
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],
"start": 4346,
"text": "On demand, the accused could not produce any authority or license in respect of the same."
}
},
{
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"id": "4dd1465bcd0c4a838d6c158f6982554a",
"to_name": null,
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"value": {
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"labels": [
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],
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"text": "Then sample of F.M wash and I.D. Liquor were kept in two separate bottles and seizure list was prepared."
}
},
{
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"id": "5e9d3adbd39e48ea854fac6b6e9e57da",
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],
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"text": "He proved the seizure list as Ext.1/1 and his signature on it as Ext.1/2."
}
},
{
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"id": "aaa7a3c6b72542beb5a21db74d286a02",
"to_name": null,
"type": null,
"value": {
"end": 4728,
"labels": [
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],
"start": 4615,
"text": "During the course of cross examination, nothing has been elicited out from the P.W. 2 to discredit his testimony."
}
},
{
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"id": "7ca0696fbf664222b62d3fcb4962ceac",
"to_name": null,
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"value": {
"end": 4777,
"labels": [
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],
"start": 4729,
"text": "P.W.2 has been serving in the Excise department."
}
},
{
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"id": "a1b6639895774751a17f17921eee0f4a",
"to_name": null,
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"value": {
"end": 4910,
"labels": [
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],
"start": 4778,
"text": "Taking all these into considerations, there cannot be any doubt that the seized articles were nothing but F.M.\nWash and I.D. Liquor."
}
},
{
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"id": "f6b4094c18b140d0bb59549da1adac18",
"to_name": null,
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"labels": [
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],
"start": 4911,
"text": "8. The next question to be determined is whether the seizure was made from the exclusive and conscious possession of the accused."
}
},
{
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"id": "22ee047d2dec4dd2a840248582733787",
"to_name": null,
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"value": {
"end": 5178,
"labels": [
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],
"start": 5041,
"text": "The witness examined is the interested witness whose evidence required corroboration by independent witness which is absent in this case."
}
},
{
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"id": "46195ff1d3964d80b2cca056c99ee7ae",
"to_name": null,
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"value": {
"end": 5290,
"labels": [
"ANALYSIS"
],
"start": 5179,
"text": "In the absence of independent corroboration, the search and seizure of the contraband articles become doubtful."
}
},
{
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"id": "633f8ee4444545b3aa911f6e253ba8e8",
"to_name": null,
"type": null,
"value": {
"end": 5447,
"labels": [
"ANALYSIS"
],
"start": 5291,
"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": "e04ef25fd10e4774a6029d50378a1aaa",
"to_name": null,
"type": null,
"value": {
"end": 5543,
"labels": [
"ANALYSIS"
],
"start": 5448,
"text": "Moreover, the sample bottles collected were not produced before the Court at the time of trial."
}
},
{
"from_name": null,
"id": "3e25d2093aa646a484aae4e6ae193953",
"to_name": null,
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"value": {
"end": 5627,
"labels": [
"ANALYSIS"
],
"start": 5544,
"text": "No documents relating to the ownership of the house were verified from the accused."
}
},
{
"from_name": null,
"id": "89990ab25db94a208fa3016478632242",
"to_name": null,
"type": null,
"value": {
"end": 5749,
"labels": [
"ANALYSIS"
],
"start": 5628,
"text": "It is admitted by P.W.2 in his cross examination that the accused was residing with her husband and others in that house."
}
},
{
"from_name": null,
"id": "3fae4f1263f143b79d1372003b6166a0",
"to_name": null,
"type": null,
"value": {
"end": 5827,
"labels": [
"ANALYSIS"
],
"start": 5750,
"text": "Thus, besides the accused, his other family members were utilizing the house."
}
},
{
"from_name": null,
"id": "59fb0477d5d140978a2e39e029e4d983",
"to_name": null,
"type": null,
"value": {
"end": 5944,
"labels": [
"ANALYSIS"
],
"start": 5828,
"text": "The possibility that her husband and inmates have possessed the same can not be ruled out in the facts of this case."
}
},
{
"from_name": null,
"id": "a04ed1ce5a4e4c2d8753bb34ef4b5d3d",
"to_name": null,
"type": null,
"value": {
"end": 6106,
"labels": [
"ANALYSIS"
],
"start": 5945,
"text": "When the evidence on this score is wanting, the criminal liability for the existence of the liquor and F.M. Wash can not be fastened on the accused beyond doubt."
}
},
{
"from_name": null,
"id": "3ed6a627090c49fea5c4908f3cc83c67",
"to_name": null,
"type": null,
"value": {
"end": 6232,
"labels": [
"RATIO"
],
"start": 6107,
"text": "There is totally absence of evidence regarding the conscious possession of the I.D. Liquor and fermented wash by the accused."
}
},
{
"from_name": null,
"id": "94e344d289844d299babe1cae52130c0",
"to_name": null,
"type": null,
"value": {
"end": 6403,
"labels": [
"RATIO"
],
"start": 6233,
"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 reasonable doubts."
}
},
{
"from_name": null,
"id": "5795a832a9bc4d839869635e67b26c83",
"to_name": null,
"type": null,
"value": {
"end": 6603,
"labels": [
"RPC"
],
"start": 6403,
"text": "\n 9. In the result, therefore, I hold the accused not guilty of committing the offence punishable U/s. 47 (a) and (f) of the Bihar & Orissa Excise Act and acquit her as per S. 248(1) of the Cr.PC."
}
},
{
"from_name": null,
"id": "92cf00f32cb241e4a135915382bae89e",
"to_name": null,
"type": null,
"value": {
"end": 6681,
"labels": [
"RPC"
],
"start": 6604,
"text": "The accused be set at liberty forthwith and is discharged from her bail bond."
}
},
{
"from_name": null,
"id": "c8f749f357e34309a576bc8c435454aa",
"to_name": null,
"type": null,
"value": {
"end": 6930,
"labels": [
"RPC"
],
"start": 6681,
"text": "\n The seized articles i.e. the bottles containing samples of I.D. Liquor and F.M. Wash 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 "
}
},
{
"from_name": null,
"id": "188c3c4a075c4763835b92ca4601fbff",
"to_name": null,
"type": null,
"value": {
"end": 6965,
"labels": [
"RPC"
],
"start": 6930,
"text": "Enter this case as mistake of fact."
}
},
{
"from_name": null,
"id": "6edf33f2cf1b4171856eb24294b26aee",
"to_name": null,
"type": null,
"value": {
"end": 7080,
"labels": [
"NONE"
],
"start": 6967,
"text": "Pronounced the judgment in the Open Court today i.e on 25th day of May, 2015 under my hand and seal of the Court."
}
},
{
"from_name": null,
"id": "4c672907957f4b3c92942fc26ee93a16",
"to_name": null,
"type": null,
"value": {
"end": 7099,
"labels": [
"NONE"
],
"start": 7080,
"text": "\n J.M.F.C, Rourkela"
}
},
{
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"id": "682f3359f77447c795efaf217110c966",
"to_name": null,
"type": null,
"value": {
"end": 7140,
"labels": [
"NONE"
],
"start": 7100,
"text": "Typed to my dictation & corrected by me."
}
},
{
"from_name": null,
"id": "045850c5dc084f5dbf1678b65765ee73",
"to_name": null,
"type": null,
"value": {
"end": 7224,
"labels": [
"NONE"
],
"start": 7140,
"text": "\n .\n J.M.F.C, Rourkela"
}
},
{
"from_name": null,
"id": "dbed7c1365614606bf038a8a23765c1c",
"to_name": null,
"type": null,
"value": {
"end": 7315,
"labels": [
"NONE"
],
"start": 7225,
"text": "List of witnesses examined for the prosecution: P.W.1 Md. Kamuruddin P.W.2 Digambara Das"
}
},
{
"from_name": null,
"id": "d26074d57f5d4709910ed8671418fb4b",
"to_name": null,
"type": null,
"value": {
"end": 7575,
"labels": [
"NONE"
],
"start": 7316,
"text": "List of witnesses examined for the defence: N o n e List of documents admitted in evidence for the prosecution: Ext. 1 Signature of P.W.1 Ext.1/1 Seizure list Ext. 1/1 Signature of P.W.2 on Ext.1/1 List of documents admitted in evidence for the defence:"
}
},
{
"from_name": null,
"id": "afadf3ac60f84ba18dc26f433f4be6ba",
"to_name": null,
"type": null,
"value": {
"end": 7739,
"labels": [
"NONE"
],
"start": 7576,
"text": "N I L List of material objects admitted in evidence for the prosecution: N I L List of material objects admitted in evidence for defence: N I L J.M.F.C., Rourkela."
}
}
]
}
] | 4,098 | {
"text": "IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,\n ROURKELA.\n\n Present: Sri P.K. Sethi, LL.M.,\n J.M.F.C., Rourkela.\n\n Dated this the 25th day of May, 2015\n\n2(a)CC No. 1171 of 2002\n Trial No. 814 of 2013\n\nSTATE ............ Prosecution\n\n -VERSUS -\n\nMariyam Majhi, aged about 42 yrs.\nW/o- Samkar Majhi\nAT- Nayabazar,\nP.S.- Plantsite,\nDistrict- Sundargarh.\n\n ............. Accused\n\nOffence U/s. 47 (a) and (f) of the B & O Excise Act\n\nCounsel for the prosecution : Suresh Ch. Majhi,\n A.P.P.,Rourkela\n\nCounsel for the defence : B.N. Samanta &\n Associates\n\n Date of conclusion of argument: 23.05.2015.\n Date of pronouncement of judgment: 25.05.2015.\n\n J U D G M E N T\n The accused person namely Mariyam Majhi stands charged for the commission of offence u/s. 47 (a) and (f) of the Bihar & Orissa Excise Act.\nThe accused is on bail and is absent in the Court today.\n2. Briefly stated, the case of the prosecution is that on 22.02.2002 at about 10.45 AM at Nayabazar area while G. Raxa, S.I. Of Excise, EI and EB , Sambalpur was performing patrolling duty along with other official staffs, they conducted raid in the house of the accused and recovered two earthen pots each containing F.M wash , one steel head and one earthen pot containing some liquid substance.Thereafter he Conducted hydrometer and blue litmus paper tests. After conducting above tests and from the distillery experience it was ascertained that the above contraband articles were nothing but F.M. Wash and I.D. Liquor. On measurement the total amount of F.M.\nWash and I.D. Liquor were found to be 40 Kgs and 10 litres respectively. On demand, the accused could not produce any authority or license in respect of the same. Then sample of F.M wash and I.D. Liquor were kept in two separate bottles and seizure list was prepared. After completion of inquiry, he submitted P.R. against the accused u/s. 47 (a) and (f) of the B & O Excise Act to face her trial . Hence, this case.\n3. The Plea of the defence is of outright denial and false implication.\n4. The following points arose for determination in the present case: I. Whether 22.02.2002 at about 10.45 AM at Nayabazar area , Mariyam Majhi, the accused, was detected by the Excise officials to be in exclusive and conscious possession of 40 Kgs of F.M wash and 10 litres of I.D. liquor without any license or authority?\n II. Whether the seized articles were nothing but F.M wash and I.D.\n Liquor?\n 5. In order to substantiate its case the prosecution has examined 2 witnesses in all out of whom P.W.2, is the S.I of Excise, P.W.1, is the independent witness to the seizure. Rest one witness has been declined by the learned A.P.P. Ext.s 1 to 1/ 2 are marked on behalf of the prosecution. On the other hand, defence has neither examined any witnesses nor marked any documents as exhibits on its behalf.\n6. The learned defence counsel has argued that the case is falsely foisted against the accused and no such occurrence took place to which the learned APP vehemently objected.\n7. At the outset, it is to be noted that P.W.1, the only independent witness examined on behalf of the prosecution does not support the case of the Prosecution. He merely admits his signature on the seizure list which is proved as Ext.1 and does not whisper a word regarding the possession or the seizure of the alleged liquor and F.M. Wash from the accused. Testimony of P.W.2, the Excise Constable, reveals that on 22.02.2002 at about 10.45 AM at Nayabazar area while he was performing patrolling duty along with other official staffs, after observing all the formalities they conducted raid in the house of the accused and recovered two earthen pots each containing F.M wash , one steel head and one earthen pot containing some liquid substance.\nThereafter S.I. conducted hydrometer and blue litmus paper tests. After conducting above tests and from the distillery experience it was ascertained that the above contraband articles were nothing but F.M. Wash and I.D.\nLiquor. On measurement the total amount of F.M. Wash and I.D. Liquor were found to be 40 Kgs and 10 litres respectively. On demand, the accused could not produce any authority or license in respect of the same. Then sample of F.M wash and I.D. Liquor were kept in two separate bottles and seizure list was prepared. He proved the seizure list as Ext.1/1 and his signature on it as Ext.1/2. During the course of cross examination, nothing has been elicited out from the P.W. 2 to discredit his testimony. P.W.2 has been serving in the Excise department. Taking all these into considerations, there cannot be any doubt that the seized articles were nothing but F.M.\nWash and I.D. Liquor.\n8. The next question to be determined is whether the seizure was made from the exclusive and conscious possession of the accused. The witness examined is the interested witness whose evidence required corroboration by independent witness which is absent in this case. In the absence of independent corroboration, the search and seizure of the contraband articles become doubtful. 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. Moreover, the sample bottles collected were not produced before the Court at the time of trial. No documents relating to the ownership of the house were verified from the accused. It is admitted by P.W.2 in his cross examination that the accused was residing with her husband and others in that house. Thus, besides the accused, his other family members were utilizing the house. The possibility that her husband and inmates have possessed the same can not be ruled out in the facts of this case. When the evidence on this score is wanting, the criminal liability for the existence of the liquor and F.M. Wash can not be fastened on the accused beyond doubt. There is totally absence of evidence regarding the conscious possession of the I.D. Liquor and fermented wash by the accused. 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 reasonable doubts.\n 9. In the result, therefore, I hold the accused not guilty of committing the offence punishable U/s. 47 (a) and (f) of the Bihar & Orissa Excise Act and acquit her as per S. 248(1) of the Cr.PC. The accused be set at liberty forthwith and is discharged from her bail bond.\n The seized articles i.e. the bottles containing samples of I.D. Liquor and F.M. Wash 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 Enter this case as mistake of fact.\n Pronounced the judgment in the Open Court today i.e on 25th day of May, 2015 under my hand and seal of the Court.\n J.M.F.C, Rourkela Typed to my dictation & corrected by me.\n .\n J.M.F.C, Rourkela List of witnesses examined for the prosecution: P.W.1 Md. Kamuruddin P.W.2 Digambara Das List of witnesses examined for the defence: N o n e List of documents admitted in evidence for the prosecution: Ext. 1 Signature of P.W.1 Ext.1/1 Seizure list Ext. 1/1 Signature of P.W.2 on Ext.1/1 List of documents admitted in evidence for the defence: N I L List of material objects admitted in evidence for the prosecution: N I L List of material objects admitted in evidence for defence: N I L J.M.F.C., Rourkela.\n "
} |
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"text": "IN THE HIGH COURT OF DELHI AT NEW DELHI"
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"text": "\n Through: Mr. N.P. Sahni, Senior Standing\n Counsel\n versus\n\n\nM/S. DWARKADHISH\nINVESTMENT (P) LTD. ..... Respondent"
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"text": "\n Through: None\n\n\n AND\n\n13.\n+ ITA 913/2010\n\nCOMMISSIONER OF\nINCOME TAX-IV ..... Appellant\n Through:"
}
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"text": "Through: None\n\n Reserved on : 23rd July, 2010"
}
},
{
"from_name": null,
"id": "e44078b6c1d84fe29e184cdb28d4bfaa",
"to_name": null,
"type": null,
"value": {
"end": 1160,
"labels": [
"PREAMBLE"
],
"start": 1021,
"text": "% Date of Decision: 2nd August, 2010\n\nCORAM:\nHON'BLE THE CHIEF JUSTICE\nHON'BLE MR. JUSTICE MANMOHAN\n\n1."
}
},
{
"from_name": null,
"id": "271bd0b33c024e389cd4c03467de40c2",
"to_name": null,
"type": null,
"value": {
"end": 1234,
"labels": [
"PREAMBLE"
],
"start": 1161,
"text": "Whether the Reporters of local papers may be allowed to see the judgment?"
}
},
{
"from_name": null,
"id": "c78806086ea042a5ba0461f709741ab0",
"to_name": null,
"type": null,
"value": {
"end": 1245,
"labels": [
"PREAMBLE"
],
"start": 1239,
"text": "Yes\n2."
}
},
{
"from_name": null,
"id": "a27a0abf390b45bea3ef465e915c6996",
"to_name": null,
"type": null,
"value": {
"end": 1284,
"labels": [
"PREAMBLE"
],
"start": 1246,
"text": "To be referred to the Reporter or not?"
}
},
{
"from_name": null,
"id": "8bdea13a1ce44399bc750037a3420071",
"to_name": null,
"type": null,
"value": {
"end": 1330,
"labels": [
"PREAMBLE"
],
"start": 1324,
"text": "Yes\n3."
}
},
{
"from_name": null,
"id": "4b899870f91448e9a7697e2f9c56ce9a",
"to_name": null,
"type": null,
"value": {
"end": 1385,
"labels": [
"PREAMBLE"
],
"start": 1331,
"text": "Whether the judgment should be reported in the Digest?"
}
},
{
"from_name": null,
"id": "dc05e9ad4cff4a2d9beeebbb0b87e890",
"to_name": null,
"type": null,
"value": {
"end": 1449,
"labels": [
"PREAMBLE"
],
"start": 1409,
"text": "Yes\n\n\n\n\n\n "
}
},
{
"from_name": null,
"id": "c20d99d7f99c4d24bddb128afc09f127",
"to_name": null,
"type": null,
"value": {
"end": 1457,
"labels": [
"PREAMBLE"
],
"start": 1449,
"text": "JUDGMENT"
}
},
{
"from_name": null,
"id": "2438d2aecbd5477fb3de37869785029f",
"to_name": null,
"type": null,
"value": {
"end": 1540,
"labels": [
"NONE"
],
"start": 1457,
"text": "\nMANMOHAN, J CM 12293/2010 in ITA 911/2010 Allowed, subject to all just exceptions."
}
},
{
"from_name": null,
"id": "91d57b8573f24f038accdaac6762b70a",
"to_name": null,
"type": null,
"value": {
"end": 1603,
"labels": [
"NONE"
],
"start": 1542,
"text": "CM 12294/2010 in ITA 911/2010 & CM 12296/2010 in ITA 913/2010"
}
},
{
"from_name": null,
"id": "fcf552414b3f490f8d5c9ae27d7a8528",
"to_name": null,
"type": null,
"value": {
"end": 1691,
"labels": [
"NONE"
],
"start": 1604,
"text": "For the reasons stated in the applications, delay in re-filing the appeals is condoned."
}
},
{
"from_name": null,
"id": "0edff260ea9b47b39f169859cdc98ec9",
"to_name": null,
"type": null,
"value": {
"end": 1754,
"labels": [
"NONE"
],
"start": 1691,
"text": "\n Applications stand disposed of.\n ITA 911/2010 & ITA 913/2010 "
}
},
{
"from_name": null,
"id": "301bd29ca7d943b2849362d93912aebe",
"to_name": null,
"type": null,
"value": {
"end": 2063,
"labels": [
"FAC"
],
"start": 1754,
"text": "1. The present appeals have been filed under Section 260A of Income Tax Act, 1961 (for brevity “Act, 1961”) challenging the common order dated 29th May, 2009 passed by the Income Tax Appellate Tribunal (in short “ITAT”) in ITA Nos. 4799/Del/04 and 4800/Del/04, for the Assessment Year 2001-2002."
}
},
{
"from_name": null,
"id": "0b366a91339e4c278b602d1785c27440",
"to_name": null,
"type": null,
"value": {
"end": 2147,
"labels": [
"FAC"
],
"start": 2064,
"text": "Since similar issue is involved in both the appeals, we are passing a common order."
}
},
{
"from_name": null,
"id": "3990194b0fad4daaa762205dadf4da6e",
"to_name": null,
"type": null,
"value": {
"end": 2232,
"labels": [
"FAC"
],
"start": 2147,
"text": "\n However, for the purpose of noting the facts, we are referring to ITA No. 911/2010."
}
},
{
"from_name": null,
"id": "f455de9bf50143a7a708630ba093fdd9",
"to_name": null,
"type": null,
"value": {
"end": 2330,
"labels": [
"FAC"
],
"start": 2232,
"text": "\n 2. The relevant facts are that the respondent-assessee was incorporated on 23rd March, 1985."
}
},
{
"from_name": null,
"id": "a413b396bc7d4e6aa9371919bb2df83b",
"to_name": null,
"type": null,
"value": {
"end": 2397,
"labels": [
"FAC"
],
"start": 2331,
"text": "It was engaged in the business of financing and trading of shares."
}
},
{
"from_name": null,
"id": "f355685f4a754eeaac3131f44798877a",
"to_name": null,
"type": null,
"value": {
"end": 2466,
"labels": [
"FAC"
],
"start": 2398,
"text": "On 22nd October, 2001, assessee filed a return declaring NIL income."
}
},
{
"from_name": null,
"id": "5b29f390a01c4eabbe3dc8260cef01ad",
"to_name": null,
"type": null,
"value": {
"end": 2536,
"labels": [
"FAC"
],
"start": 2467,
"text": "The return was initially processed under Section 143(1) of Act, 1961."
}
},
{
"from_name": null,
"id": "d6930f9721124183927c248ee3f48147",
"to_name": null,
"type": null,
"value": {
"end": 2699,
"labels": [
"FAC"
],
"start": 2537,
"text": "However, subsequently on 21st October, 2002 the case was selected for scrutiny and notice under Section 143(2) of Act, 1961 was issued to the respondent-assessee."
}
},
{
"from_name": null,
"id": "e6dde5f201af4539b81538636d66d1b8",
"to_name": null,
"type": null,
"value": {
"end": 2837,
"labels": [
"FAC"
],
"start": 2700,
"text": "On scrutiny of accounts, the Assessing Officer (in short “AO”) found an addition of Rs. 71,75,000/- in the share capital of the assessee."
}
},
{
"from_name": null,
"id": "04f75fb7b8764bc58a59ce50df488026",
"to_name": null,
"type": null,
"value": {
"end": 2924,
"labels": [
"FAC"
],
"start": 2838,
"text": "The AO sought an explanation of the assessee about this addition in the share capital."
}
},
{
"from_name": null,
"id": "6597dbd85fee4d6fa2efbfd963ca9cd7",
"to_name": null,
"type": null,
"value": {
"end": 3005,
"labels": [
"FAC"
],
"start": 2925,
"text": "The assessee vide letter dated 13th August, 2003 offered a detailed explanation."
}
},
{
"from_name": null,
"id": "66eeca3d2ac04457aab604946ac3b1f7",
"to_name": null,
"type": null,
"value": {
"end": 3144,
"labels": [
"FAC"
],
"start": 3005,
"text": "\n 3. However, according to the AO, the assessee failed to explain the addition of share application money from five of its subscribers."
}
},
{
"from_name": null,
"id": "2cbed04fd8914ff9889bc8d37d8b3e4c",
"to_name": null,
"type": null,
"value": {
"end": 3316,
"labels": [
"FAC"
],
"start": 3144,
"text": "\n Accordingly, AO made an addition of Rs. 35,50,000/- with the aid of Section 68 of Act, 1961 on account of unexplained cash credits appearing in the books of the assessee."
}
},
{
"from_name": null,
"id": "d38cbe002e384be6af50835741b79444",
"to_name": null,
"type": null,
"value": {
"end": 3546,
"labels": [
"FAC"
],
"start": 3317,
"text": " However, in appeal, the Commissioner of Income Tax (Appeals) [in short “CIT(A)”] deleted the addition on the ground that the assessee had proved the existence of the shareholders and the genuineness of the transaction."
}
},
{
"from_name": null,
"id": "b5239797324641b19c5330637c4727ec",
"to_name": null,
"type": null,
"value": {
"end": 4234,
"labels": [
"FAC"
],
"start": 3547,
"text": " The relevant portion of the order passed by the CIT(A) is reproduced hereinbelow :- “2.12 The authorized representative of the applicant has stated that in the written submission that following documents have been filed to prove the identity of share applicants: 1. Copies of Certificate of incorporation in respect of the corporate applicants.\n 2. Copy of Memorandum and Articles of Association of the corporate applicants.\n 3. Copies of acknowledgement of returns filed/income tax orders in the case of the applicants.\n 4. Sworn affidavits from the applicants regarding investment in the appellant company.\n 5. Copy of Bank accounts of shareholders."
}
},
{
"from_name": null,
"id": "d7930a6989e74a07aae9fd130dfc2fbb",
"to_name": null,
"type": null,
"value": {
"end": 4300,
"labels": [
"FAC"
],
"start": 4234,
"text": "\n 6. Copies of documents obtained from Registrar of Companies."
}
},
{
"from_name": null,
"id": "7ebf7461e9614184a26c353c33697ca0",
"to_name": null,
"type": null,
"value": {
"end": 4364,
"labels": [
"FAC"
],
"start": 4300,
"text": "\n 7. Copies of annual returns filed under the Companies Act."
}
},
{
"from_name": null,
"id": "811845434a59466088e3001f6d5d2ca8",
"to_name": null,
"type": null,
"value": {
"end": 4478,
"labels": [
"FAC"
],
"start": 4364,
"text": "\n 8. Other relevant documents, wherever available, evidencing the existence and genuineness of the applicants."
}
},
{
"from_name": null,
"id": "437327005fda401abfe1807c8b77a1c8",
"to_name": null,
"type": null,
"value": {
"end": 4531,
"labels": [
"FAC"
],
"start": 4478,
"text": "\n xxxx xxxx xxxx xxxx 2.21"
}
},
{
"from_name": null,
"id": "53436bb70ba0495c96223c87ff88ccb7",
"to_name": null,
"type": null,
"value": {
"end": 4667,
"labels": [
"ANALYSIS"
],
"start": 4532,
"text": " I have considered the submission made by the authorized representative of the appellant and the facts stated in the assessment order."
}
},
{
"from_name": null,
"id": "ae1e7c6487024cf0a0b2fca305d63b4d",
"to_name": null,
"type": null,
"value": {
"end": 4838,
"labels": [
"ANALYSIS"
],
"start": 4668,
"text": "It is observed that the addition made by the assessing officer on account of unexplained share application money cannot be sustained for the following reasons:- (i) "
}
},
{
"from_name": null,
"id": "257700f8269c4e0d9385ae294ca11447",
"to_name": null,
"type": null,
"value": {
"end": 4879,
"labels": [
"ANALYSIS"
],
"start": 4838,
"text": "The applicants concerned were identified."
}
},
{
"from_name": null,
"id": "66123f8f066c4cb489af4252c276b186",
"to_name": null,
"type": null,
"value": {
"end": 4975,
"labels": [
"ANALYSIS"
],
"start": 4879,
"text": "\n (ii) The applicants confirmed the payment of money to the appellant for purchase of shares."
}
},
{
"from_name": null,
"id": "cfd6d1957fda499b9be483185261ee6a",
"to_name": null,
"type": null,
"value": {
"end": 5031,
"labels": [
"ANALYSIS"
],
"start": 4975,
"text": "\n (iii) The transactions in question were by cheques."
}
},
{
"from_name": null,
"id": "4abb8afe9ccb4a9e94d765d3b41c0689",
"to_name": null,
"type": null,
"value": {
"end": 5220,
"labels": [
"ANALYSIS"
],
"start": 5031,
"text": "\n (iv) The affidavit of the subscribers were filed indicating their full address, details of deposits made with the appellant and sources where from money was obtained to make the deposits."
}
},
{
"from_name": null,
"id": "a6e9fd2b7f7b43ac90cff09775e345f0",
"to_name": null,
"type": null,
"value": {
"end": 5260,
"labels": [
"ANALYSIS"
],
"start": 5221,
"text": "Copies of bank accounts were furnished."
}
},
{
"from_name": null,
"id": "ced27786bc964864bae4d85a70657578",
"to_name": null,
"type": null,
"value": {
"end": 5293,
"labels": [
"ANALYSIS"
],
"start": 5261,
"text": "These affidavits were notarized."
}
},
{
"from_name": null,
"id": "a4e2184af3c64bf9aa4381dfb2965ff5",
"to_name": null,
"type": null,
"value": {
"end": 5362,
"labels": [
"ANALYSIS"
],
"start": 5294,
"text": "There was no ground for disbelieving the contents of the affidavits."
}
},
{
"from_name": null,
"id": "a4dc91dcdc5a4cb08c06547b953d8ef5",
"to_name": null,
"type": null,
"value": {
"end": 5455,
"labels": [
"ANALYSIS"
],
"start": 5362,
"text": "\n (v) Most of the subscribers were companies incorporated with the Registrar of Companies."
}
},
{
"from_name": null,
"id": "4df13e03f570499480e2de6185fd444f",
"to_name": null,
"type": null,
"value": {
"end": 5520,
"labels": [
"ANALYSIS"
],
"start": 5456,
"text": "Proper inquiries would have revealed the true facts of the case."
}
},
{
"from_name": null,
"id": "be5e647c74094a688a6dd8d7807a0dad",
"to_name": null,
"type": null,
"value": {
"end": 5668,
"labels": [
"ANALYSIS"
],
"start": 5521,
"text": "The appellant cannot be faulted if there was no time to give them an opportunity to rebut the Inspector‟s report made at the back of the appellant."
}
},
{
"from_name": null,
"id": "10276264e31443d5a9f2072a0da4ac7f",
"to_name": null,
"type": null,
"value": {
"end": 5736,
"labels": [
"ANALYSIS"
],
"start": 5668,
"text": "\n (vi) The deposits were not of an order that could not be believed."
}
},
{
"from_name": null,
"id": "baa1cbff1995468e836edecaec95cb16",
"to_name": null,
"type": null,
"value": {
"end": 5868,
"labels": [
"ANALYSIS"
],
"start": 5736,
"text": "\n (vii) The shares have been allotted to the shareholders and letter of allotment have been submitted to the Registrar of Companies."
}
},
{
"from_name": null,
"id": "c0d75d4535444160b2b2cad1cb518e30",
"to_name": null,
"type": null,
"value": {
"end": 6046,
"labels": [
"ANALYSIS"
],
"start": 5868,
"text": "\n (viii) The existence of these companies (i.e.\n depositors of shares application money) has also been verified from the website of Department of Companies Affairs."
}
},
{
"from_name": null,
"id": "e8e30ad8029c4dec8237b851f6ab3892",
"to_name": null,
"type": null,
"value": {
"end": 6110,
"labels": [
"ANALYSIS"
],
"start": 6047,
"text": "The existence of the shareholders, therefore cannot be doubted."
}
},
{
"from_name": null,
"id": "0734758eb07d423c85813b69d00bd8d9",
"to_name": null,
"type": null,
"value": {
"end": 6323,
"labels": [
"ANALYSIS"
],
"start": 6110,
"text": "\n 2.22 In the interest of justice, I scrutinized all the available information and I am of the view that in the facts and circumstances, this is not a fit case for not accepting the genuineness of the deposits."
}
},
{
"from_name": null,
"id": "450bc1db329146a8b0946682546c64d2",
"to_name": null,
"type": null,
"value": {
"end": 6423,
"labels": [
"ANALYSIS"
],
"start": 6324,
"text": "The identity of the subscribers and the genuineness of the transactions have been established…..” 4"
}
},
{
"from_name": null,
"id": "5dae37f5cef14c318f1a00740da9a5c6",
"to_name": null,
"type": null,
"value": {
"end": 6662,
"labels": [
"ANALYSIS"
],
"start": 6423,
"text": ". The ITAT confirmed the order of the CIT(A) as it was also of the opinion that the assessee had been able to prove the identity of the share applicants and the share application money had been received by way of account payee cheques."
}
},
{
"from_name": null,
"id": "0a0c5bbec6fb4402977d645653cf1d70",
"to_name": null,
"type": null,
"value": {
"end": 6849,
"labels": [
"ANALYSIS"
],
"start": 6663,
"text": "In reaching this conclusion, the ITAT had relied upon a Division Bench judgment of this Court in Commissioner of Income Tax Vs. Divine Leasing & Finance Ltd., (2008) 299 ITR 268 (Delhi)."
}
},
{
"from_name": null,
"id": "0b5c95854f874715831ce84cdf2430cb",
"to_name": null,
"type": null,
"value": {
"end": 6858,
"labels": [
"ARG_PETITIONER"
],
"start": 6851,
"text": "5. "
}
},
{
"from_name": null,
"id": "27084751c0764d18bb1abcf191bebd84",
"to_name": null,
"type": null,
"value": {
"end": 7197,
"labels": [
"ARG_PETITIONER"
],
"start": 6858,
"text": "Mr. N.P. Sahni, learned standing counsel for the Revenue submitted that the ITAT had erred in law in deleting the addition made by the AO under Section 68 of Act, 1961 as the assessee had failed to discharge the burden in respect of the identity of the share applicants, genuineness of transaction and creditworthiness of share applicants."
}
},
{
"from_name": null,
"id": "81cf68be47054190a67c561da78a2c4e",
"to_name": null,
"type": null,
"value": {
"end": 7624,
"labels": [
"ARG_PETITIONER"
],
"start": 7198,
"text": "In support of his submission, he relied upon following judgments :- A) CIT Vs. Rathi Finlease Ltd., 215 CTR 167 (M.P.) wherein it has been held as under :- “17. ……S.68 of the Act enjoined the assessee to offer an explanation about the nature and source of the sum found credited in his books and if the explanation was not satisfactory, the amount can be credited and charged to income-tax as income of the assessee."
}
},
{
"from_name": null,
"id": "1707d6a47b4d44ed8d0e5a29ed1f6e69",
"to_name": null,
"type": null,
"value": {
"end": 7964,
"labels": [
"ARG_PETITIONER"
],
"start": 7625,
"text": "Since the assessee, though tried to explain the genuineness of the credit on the basis of letters of confirmation, it could not be explained as to how the transaction was materialized when the companies were not in existence and the amount was paid by cheque only on the date on which the amount was credited to the account of the company."
}
},
{
"from_name": null,
"id": "6f4468d5336a41eb8a7b2ff8dd081be1",
"to_name": null,
"type": null,
"value": {
"end": 8077,
"labels": [
"ARG_PETITIONER"
],
"start": 7965,
"text": "It was for the assessee to discharge this burden…………” B) CIT vs. Kundan Investment Ltd., 263 ITR 626 (Cal.)"
}
},
{
"from_name": null,
"id": "5eafaab26f694e898518e224a944239a",
"to_name": null,
"type": null,
"value": {
"end": 8119,
"labels": [
"ARG_PETITIONER"
],
"start": 8078,
"text": "wherein it has been held as under :- “………"
}
},
{
"from_name": null,
"id": "25318ca98fcd45c78d81e482d7160350",
"to_name": null,
"type": null,
"value": {
"end": 8261,
"labels": [
"ARG_PETITIONER"
],
"start": 8119,
"text": ".Under Section 68, the Income-tax Officer is empowered to lift the veil of corporate identity and find out as to whether the apparent is real."
}
},
{
"from_name": null,
"id": "929dab1ae27647538b1fefa1b6f655d0",
"to_name": null,
"type": null,
"value": {
"end": 8303,
"labels": [
"ARG_PETITIONER"
],
"start": 8262,
"text": "It is the assessee on whom the onus lies."
}
},
{
"from_name": null,
"id": "3cd4745f287646ccb33888efda645f85",
"to_name": null,
"type": null,
"value": {
"end": 8385,
"labels": [
"ARG_PETITIONER"
],
"start": 8304,
"text": "Unless sufficient materials are produced, the onus does not shift on the Revenue."
}
},
{
"from_name": null,
"id": "dd4f177043434a07873181a89c4f4958",
"to_name": null,
"type": null,
"value": {
"end": 8538,
"labels": [
"ARG_PETITIONER"
],
"start": 8386,
"text": "But once the materials are scrutinized and the result of the scrutiny is communicated to the assessee, the onus shifts from the Revenue to the assessee."
}
},
{
"from_name": null,
"id": "5f2716f7b5e64b75b6ec3763b163399d",
"to_name": null,
"type": null,
"value": {
"end": 8608,
"labels": [
"ARG_PETITIONER"
],
"start": 8539,
"text": "Then the assessee has to take appropriate steps for proving its case."
}
},
{
"from_name": null,
"id": "a9f2270782c74f99bbb69ef709b678b0",
"to_name": null,
"type": null,
"value": {
"end": 8741,
"labels": [
"ARG_PETITIONER"
],
"start": 8609,
"text": "Unless there are sufficient materials after such communication, produced by the assessee, the Income-tax Officer can do no further.”"
}
},
{
"from_name": null,
"id": "293999f9c4bd4db4bfe88c2e652c2189",
"to_name": null,
"type": null,
"value": {
"end": 8860,
"labels": [
"ARG_PETITIONER"
],
"start": 8742,
"text": "C) Commissioner of Income Tax vs. Sophia Finance Limited, 205 ITR 98 (Del) wherein it has been held as under :- “"
}
},
{
"from_name": null,
"id": "c63354a63f2f45829dec0741d452c73e",
"to_name": null,
"type": null,
"value": {
"end": 9202,
"labels": [
"ARG_PETITIONER"
],
"start": 8860,
"text": "………..As we read Section 68 it appears that whenever a sum is found credited in the books of account of the assessee then, irrespective of the colour or the nature of the sum received which is sought to be given by the assessee, the Income tax Officer has the jurisdiction to enquire from the assessee the nature and source of the said amount."
}
},
{
"from_name": null,
"id": "d73a78b2a06e49b6a4b829e0934630f4",
"to_name": null,
"type": null,
"value": {
"end": 9368,
"labels": [
"ARG_PETITIONER"
],
"start": 9203,
"text": "When an explanation in regard thereto is given by the assessee, then it is for the Income tax Officer to be satisfied whether the said explanation is correct or not."
}
},
{
"from_name": null,
"id": "bd42ae55f6534aff96ed18e5b1c076a9",
"to_name": null,
"type": null,
"value": {
"end": 9552,
"labels": [
"ARG_PETITIONER"
],
"start": 9369,
"text": "It is in this regard that enquiries are usually made in order to find out as to whether, firstly, the persons from whom money is alleged to have been received actually existed or not."
}
},
{
"from_name": null,
"id": "13dafdaeb5ca4645bd923a0e440293c6",
"to_name": null,
"type": null,
"value": {
"end": 9800,
"labels": [
"ARG_PETITIONER"
],
"start": 9553,
"text": "Secondly, depending upon the facts of each case, the Income tax Officer may even be justified in trying to ascertain the source of the depositor, assuming he is identified, in order to determine whether that depositor is a mere name lender or not."
}
},
{
"from_name": null,
"id": "385de4c1144044579251b747f27dabb0",
"to_name": null,
"type": null,
"value": {
"end": 10166,
"labels": [
"ARG_PETITIONER"
],
"start": 9801,
"text": "Be that as it may, it is clear that the Income tax Officer has jurisdiction to make enquiries with regard to the nature and source of a sum credited in the books of account of an assessee and it would be immaterial as to whether the amount so credited is given the colour of a loan or a sum representing the sale proceeds or even receipt of share application money."
}
},
{
"from_name": null,
"id": "4ff79d9181164c44a8ec920d205044a9",
"to_name": null,
"type": null,
"value": {
"end": 10522,
"labels": [
"ARG_PETITIONER"
],
"start": 10167,
"text": "The use of the words “any sum found credited in the books” in section 68 indicates that the said section is very widely worded and an Income tax officer is not precluded from making an enquiry as to the true nature and source thereof even if the same is credited as receipt of share application money.\n xxxx xxxx xxxx xxxx …………"
}
},
{
"from_name": null,
"id": "eaa58e3410604810bc3be91579ee8b79",
"to_name": null,
"type": null,
"value": {
"end": 11433,
"labels": [
"ARG_PETITIONER"
],
"start": 10522,
"text": "..On the basis of the language used under Section 68 and the various decisions of different High Courts and the Apex Court, the only conclusion which could be arrived at is: (i)that there is no distinction between the cash credit entry existing in the books of the firm whether it is of a partner or of a third party, (ii) that the burden to prove the identity, capacity and genuineness has to be on the assessee, (iii) if the cash credit is not satisfactorily explained the Income Tax Officer is justified to treat it as Income from “undisclosed sources”, (iv) the firm has to establish that the amount was actually given by the lender, (v) the genuineness and regularity in the maintenance of the account has to be taken into consideration by the taxing authorities, (vi) if the explanation is not supported by any documentary or other evidence, then the deeming fiction credited by Section 68 can be invoked."
}
},
{
"from_name": null,
"id": "a4fe4730070d4edf972f75922c893d48",
"to_name": null,
"type": null,
"value": {
"end": 11731,
"labels": [
"ARG_PETITIONER"
],
"start": 11434,
"text": "In these circumstances, we are of the view that simply because the amount is credited in the books of the firm in the partner‟s capital account it cannot be said that it is not the undisclosed income of the firm and in all cases it has to be assessed as an undisclosed income of the partner alone."
}
},
{
"from_name": null,
"id": "1da3be20fced4a0fb50bd5607c8f1c85",
"to_name": null,
"type": null,
"value": {
"end": 11985,
"labels": [
"ARG_PETITIONER"
],
"start": 11732,
"text": "In these circumstances, we are of the view that the Tribunal was not justified in holding that the cash credits of Rs.11,502 in the account of Shri Kishorilal, one of the partners, could not be assessed in the hands of the firm and in deleting the same."
}
},
{
"from_name": null,
"id": "c14b2aa179274522917cca179ce7bc55",
"to_name": null,
"type": null,
"value": {
"end": 12179,
"labels": [
"ARG_PETITIONER"
],
"start": 11986,
"text": "Since the matter was not considered by the Tribunal on the merits, the Tribunal would be free to hear the arguments of both the parties and decide afresh in view of the observations made above."
}
},
{
"from_name": null,
"id": "82aa7cc5de7842c1be09568c01f57a1a",
"to_name": null,
"type": null,
"value": {
"end": 12274,
"labels": [
"ARG_PETITIONER"
],
"start": 12179,
"text": "\n Accordingly, the reference is answered in favour of the Revenue and against the assessee."
}
},
{
"from_name": null,
"id": "964770fb90434d3ca9b6526846b747b4",
"to_name": null,
"type": null,
"value": {
"end": 12415,
"labels": [
"ARG_PETITIONER"
],
"start": 12274,
"text": "\n D) CIT vs. Korlay Trading Co. Ltd., 232 ITR 820 (Cal) wherein it has been held as under :- “……….There should be a genuine transaction."
}
},
{
"from_name": null,
"id": "53a3624e65bf4773bedde402c939d75b",
"to_name": null,
"type": null,
"value": {
"end": 12525,
"labels": [
"ARG_PETITIONER"
],
"start": 12416,
"text": "The income tax file number has been given but that is not enough to prove the genuineness of the cash credit."
}
},
{
"from_name": null,
"id": "85d9d9418d4a498eb377fa23235f716a",
"to_name": null,
"type": null,
"value": {
"end": 12603,
"labels": [
"ARG_PETITIONER"
],
"start": 12526,
"text": "Admittedly, there is no affidavit to this effect, by the creditor, on record."
}
},
{
"from_name": null,
"id": "1e1c262c64964572aa5e8026ccb04d12",
"to_name": null,
"type": null,
"value": {
"end": 12697,
"labels": [
"ARG_PETITIONER"
],
"start": 12604,
"text": "Considering these facts, we find that the finding of the Tribunal in this regard is perverse."
}
},
{
"from_name": null,
"id": "debd9ade75104ec2917065bcb1804623",
"to_name": null,
"type": null,
"value": {
"end": 12772,
"labels": [
"ARG_PETITIONER"
],
"start": 12697,
"text": "\n The assessee has failed to prove the genuineness of the cash credit……"
}
},
{
"from_name": null,
"id": "6b1b51c1fdbd4566998c9f9d79120850",
"to_name": null,
"type": null,
"value": {
"end": 12861,
"labels": [
"ARG_PETITIONER"
],
"start": 12773,
"text": "E) CIT vs. Shiv Shakti Timber, 229 ITR 505 (MP) wherein it has been held as under :"
}
},
{
"from_name": null,
"id": "f09d63dd34f841ff8ce7aa5095c9439d",
"to_name": null,
"type": null,
"value": {
"end": 13215,
"labels": [
"ARG_PETITIONER"
],
"start": 12861,
"text": "- “……Therefore, from the series of decisions of various High Courts, it is well established that in such a situation where there is a credit entry in the books of account of the assessee and there is no satisfactory explanation, then it will be deemed to be the income of the firm and will be added to the income of the firm and can be accordingly taxed."
}
},
{
"from_name": null,
"id": "a1587b6f8b3d4514b92110849345d753",
"to_name": null,
"type": null,
"value": {
"end": 13290,
"labels": [
"ARG_PETITIONER"
],
"start": 13216,
"text": "The view taken by the Tribunal appears to be erroneous of the face of it.”"
}
},
{
"from_name": null,
"id": "9bd633a5c3544466b6f914ee56fe790c",
"to_name": null,
"type": null,
"value": {
"end": 13383,
"labels": [
"ARG_PETITIONER"
],
"start": 13291,
"text": "F) Sumati Dayal vs. CIT, 214 ITR 801 (SC) wherein the Apex Court has held as under :- “"
}
},
{
"from_name": null,
"id": "4988df65db9a4926acc8a76d56ec9a71",
"to_name": null,
"type": null,
"value": {
"end": 13728,
"labels": [
"ARG_PETITIONER"
],
"start": 13383,
"text": "It is no doubt true that in all cases in which a receipt is sought to be taxed as Income, the burden lies upon the Department to prove that it is within the taxing provision and if a receipt is in the nature of income, the burden of provind that it is not taxable because it falls within the exemption provided by the Act lies upon the assessee."
}
},
{
"from_name": null,
"id": "5672b66331194a82a8ba61a90e4ed9ea",
"to_name": null,
"type": null,
"value": {
"end": 13791,
"labels": [
"ARG_PETITIONER"
],
"start": 13729,
"text": "(See Parimisetti Seetharamamma [1965] 57 ITR 532 at page 536)."
}
},
{
"from_name": null,
"id": "4c59ef16dfea45d9a8d6e58f56b28347",
"to_name": null,
"type": null,
"value": {
"end": 14146,
"labels": [
"ARG_PETITIONER"
],
"start": 13792,
"text": "But, in view of Section 68 of the Act, where any sum is found credited in the books of the assessee for any previous year, the same may be charged to income tax as the income of the assessee of that previous year if the explanation offered by the assessee about the nature and source thereof is, in the opinion of the Assessing Officer, not satisfactory."
}
},
{
"from_name": null,
"id": "01a16f20c95a418b8d314657aa3b0599",
"to_name": null,
"type": null,
"value": {
"end": 14384,
"labels": [
"ARG_PETITIONER"
],
"start": 14147,
"text": "In such a case there is, prima facie, evidence against the assessee, viz. the receipt of money, and if he fails to rebut it the said evidence being unrebutted, can be used against him by holding that it was a receipt of an income nature."
}
},
{
"from_name": null,
"id": "ed6ccd2fabcb4ee390d756e89a6ddd8a",
"to_name": null,
"type": null,
"value": {
"end": 14484,
"labels": [
"ARG_PETITIONER"
],
"start": 14385,
"text": "While considering the explanation of the assessee the Department cannot, however, act unreasonably."
}
},
{
"from_name": null,
"id": "14990f400c1246f3bfa0a0ff3a3fef71",
"to_name": null,
"type": null,
"value": {
"end": 14506,
"labels": [
"ARG_PETITIONER"
],
"start": 14484,
"text": "\n xxxx"
}
},
{
"from_name": null,
"id": "90de9e2cbabb49b38d1556c5a0179969",
"to_name": null,
"type": null,
"value": {
"end": 14520,
"labels": [
"ARG_PETITIONER"
],
"start": 14507,
"text": " xxxx"
}
},
{
"from_name": null,
"id": "81b02b9e5f7e42ad8b8c3044c1eb9557",
"to_name": null,
"type": null,
"value": {
"end": 14534,
"labels": [
"ARG_PETITIONER"
],
"start": 14521,
"text": " xxxx"
}
},
{
"from_name": null,
"id": "73da45ba7c594e97bbd08d23a60df79c",
"to_name": null,
"type": null,
"value": {
"end": 14549,
"labels": [
"ARG_PETITIONER"
],
"start": 14535,
"text": " xxxx"
}
},
{
"from_name": null,
"id": "3e825b51eaef4a989d669fa448cf1723",
"to_name": null,
"type": null,
"value": {
"end": 14632,
"labels": [
"ARG_PETITIONER"
],
"start": 14550,
"text": "…………..This raises the question whether the apparent can be considered as the real."
}
},
{
"from_name": null,
"id": "81d717862aa14d3b9ee8bbc37c2885d8",
"to_name": null,
"type": null,
"value": {
"end": 14978,
"labels": [
"ARG_PETITIONER"
],
"start": 14633,
"text": "As laid down by this Court the apparent must be considered the real until it is shown that there are reasons to believe that the apparent is not the real and that the taxing authorities are entitled to look into the surrounding circumstances to find out the reality and the matter has to be considered by applying the test of human probabilities"
}
},
{
"from_name": null,
"id": "ecd3eb3e94c74615ab2730ce22fc5b0a",
"to_name": null,
"type": null,
"value": {
"end": 15017,
"labels": [
"ARG_PETITIONER"
],
"start": 14978,
"text": "…….\n xxxx xxxx"
}
},
{
"from_name": null,
"id": "5964b4dd45704f0682ff200baaaec20b",
"to_name": null,
"type": null,
"value": {
"end": 15031,
"labels": [
"ARG_PETITIONER"
],
"start": 15018,
"text": " xxxx"
}
},
{
"from_name": null,
"id": "0eb36d957a034c1d86dfb9343320512b",
"to_name": null,
"type": null,
"value": {
"end": 15045,
"labels": [
"ARG_PETITIONER"
],
"start": 15032,
"text": " xxxx"
}
},
{
"from_name": null,
"id": "3349d259f3694925877cbeda6a3bd6f9",
"to_name": null,
"type": null,
"value": {
"end": 15109,
"labels": [
"ARG_PETITIONER"
],
"start": 15046,
"text": "This, in our opinion, is a superficial approach to the problem."
}
},
{
"from_name": null,
"id": "5ce25d02ff464aca875bc6a91070825c",
"to_name": null,
"type": null,
"value": {
"end": 15191,
"labels": [
"ARG_PETITIONER"
],
"start": 15109,
"text": "\n The matter has to be considered in the light of human probabilities…………..\n G"
}
},
{
"from_name": null,
"id": "e7034c67342f48f98781ba636d2eee33",
"to_name": null,
"type": null,
"value": {
"end": 15245,
"labels": [
"ARG_PETITIONER"
],
"start": 15191,
"text": ") CIT Vs. Divine Leasing and Finance Ltd. (supra)"
}
},
{
"from_name": null,
"id": "0793ff7592374595bf519bc4cb55fd14",
"to_name": null,
"type": null,
"value": {
"end": 15511,
"labels": [
"ARG_PETITIONER"
],
"start": 15246,
"text": "wherein it has been ruled thus :- “There cannot be two opinions on the aspect that the pernicious practice of conversion of unaccounted money through the masquerade or channel of investment in the share capital of a company must be firmly excoriated by the Revenue."
}
},
{
"from_name": null,
"id": "f4406d7a571649ecb2b7f45d4157a1cf",
"to_name": null,
"type": null,
"value": {
"end": 15709,
"labels": [
"ARG_PETITIONER"
],
"start": 15512,
"text": "Equally, where the preponderance of evidence indicates absence of culpability and complexity of the assessee it should not be harassed by the Revenue‟s insistence that it should prove the negative."
}
},
{
"from_name": null,
"id": "67cf5aac27b443ecb7c4530cbbddb19e",
"to_name": null,
"type": null,
"value": {
"end": 15884,
"labels": [
"ARG_PETITIONER"
],
"start": 15710,
"text": "In the case of a public issue, the company concerned cannot be expected to know every detail pertaining to the identity as well as financial worth of each of its subscribers."
}
},
{
"from_name": null,
"id": "3a284bbe73ce4967b15ed9e92649c204",
"to_name": null,
"type": null,
"value": {
"end": 16057,
"labels": [
"ARG_PETITIONER"
],
"start": 15885,
"text": "The company must, however, maintain and make available to the Assessing Officer for his perusal, all the information contained in the statutory share application documents."
}
},
{
"from_name": null,
"id": "1c92b406612f4c0db7d678cb18eb2a49",
"to_name": null,
"type": null,
"value": {
"end": 16130,
"labels": [
"ARG_PETITIONER"
],
"start": 16058,
"text": "In the case of private placement the legal regime would not be the same."
}
},
{
"from_name": null,
"id": "c37108fea3b8421c960f710ffefa4ad7",
"to_name": null,
"type": null,
"value": {
"end": 16241,
"labels": [
"ARG_PETITIONER"
],
"start": 16131,
"text": "A delicate balance must be maintained while walking the tightrope of Sections 68 and 69 of the Income Tax Act."
}
},
{
"from_name": null,
"id": "f314bd87de2541e09fcf37b0c4f0deb4",
"to_name": null,
"type": null,
"value": {
"end": 16465,
"labels": [
"ARG_PETITIONER"
],
"start": 16242,
"text": "The burden of proof can seldom be discharged to the hilt by the assessee; if the Assessing Officer harbours doubts of the legitimacy of any subscription he is empowered, nay duty bound, to carry out thorough investigations."
}
},
{
"from_name": null,
"id": "57e4f8aab39f41d4ac4f681e6a9ea540",
"to_name": null,
"type": null,
"value": {
"end": 16664,
"labels": [
"ARG_PETITIONER"
],
"start": 16466,
"text": "But if the Assessing Officer fails to unearth any wrong or illegal dealings, he cannot obdurately adhere to his suspicions and treat the subscribed capital as the undisclosed income of the company.”"
}
},
{
"from_name": null,
"id": "111d4286a15143be9e03eedc7764e9ed",
"to_name": null,
"type": null,
"value": {
"end": 17009,
"labels": [
"ANALYSIS"
],
"start": 16664,
"text": " 6. In our opinion, as Section 68 of Act, 1961 has been interpreted as recently as 2008 by a Division Bench of this Court in Divine Leasing & Finance Ltd. (supra) after considering all the relevant judgments, we do not have to reconsider all the judgments referred to by Mr. Sahni which are prior in date and time to the aforesaid judgment."
}
},
{
"from_name": null,
"id": "6dd9f2f9f1744d008e94d9a039015409",
"to_name": null,
"type": null,
"value": {
"end": 17186,
"labels": [
"PRE_RELIED"
],
"start": 17010,
"text": "In fact, a Special Leave Petition filed against the said Division Bench judgment was dismissed by the Supreme Court by way of a speaking order in Commissioner of Income Tax Vs."
}
},
{
"from_name": null,
"id": "4595070210e94b168693c85d9159f238",
"to_name": null,
"type": null,
"value": {
"end": 17193,
"labels": [
"PRE_RELIED"
],
"start": 17187,
"text": "Lovely"
}
},
{
"from_name": null,
"id": "62bf37597da544c687589ff7218798f8",
"to_name": null,
"type": null,
"value": {
"end": 17201,
"labels": [
"PRE_RELIED"
],
"start": 17194,
"text": "Exports"
}
},
{
"from_name": null,
"id": "4ba307b6437e42ae886988e929691caa",
"to_name": null,
"type": null,
"value": {
"end": 17228,
"labels": [
"PRE_RELIED"
],
"start": 17202,
"text": "(P) Ltd., 216 CTR 195 (SC)"
}
},
{
"from_name": null,
"id": "ef72bb3ced154ab0946178dc379b00e6",
"to_name": null,
"type": null,
"value": {
"end": 17400,
"labels": [
"PRE_RELIED"
],
"start": 17228,
"text": ". The Supreme Court in Lovely Exports (P) Ltd. (supra), has held as under:- “2. Can the amount of share money be regarded as undisclosed income under s. 68 of IT Act, 1961?"
}
},
{
"from_name": null,
"id": "aa39e7025d1b4f62bf53b132d6e6b678",
"to_name": null,
"type": null,
"value": {
"end": 17710,
"labels": [
"PRE_RELIED"
],
"start": 17401,
"text": "We find no merit in this Special Leave Petition for the simple reason that if the share application money is received by the assessee company from alleged bogus shareholders, whose names are given to the AO, then the Department is free to proceed to reopen their individual assessments in accordance with law."
}
},
{
"from_name": null,
"id": "3ca2a2af80ae4fa6a33bea3b2f97029c",
"to_name": null,
"type": null,
"value": {
"end": 17776,
"labels": [
"PRE_RELIED"
],
"start": 17710,
"text": "\n Hence, we find no infirmity with the impugned judgment……”"
}
},
{
"from_name": null,
"id": "34a66bb6d6c54dcdb438cf54521ce32b",
"to_name": null,
"type": null,
"value": {
"end": 17785,
"labels": [
"ANALYSIS"
],
"start": 17776,
"text": " 7. "
}
},
{
"from_name": null,
"id": "a2560ae8b52349e6a6fe8b41c20a7a9e",
"to_name": null,
"type": null,
"value": {
"end": 17986,
"labels": [
"ANALYSIS"
],
"start": 17785,
"text": "Consequently, the doctrine of merger would apply and the judgment of the Supreme Court in Lovely Exports (P) Ltd. (supra) would cover the field with regard to interpretation of Section 68 of Act, 1961."
}
},
{
"from_name": null,
"id": "6f0db24ccd374f8bbf9905861c7e067c",
"to_name": null,
"type": null,
"value": {
"end": 18049,
"labels": [
"ANALYSIS"
],
"start": 17986,
"text": "\n 8. In any matter, the onus of proof is not a static one."
}
},
{
"from_name": null,
"id": "61f7cc7a81fd42efa607ea1db84303f2",
"to_name": null,
"type": null,
"value": {
"end": 18455,
"labels": [
"ANALYSIS"
],
"start": 18050,
"text": "Though in Section 68 proceedings, the initial burden of proof lies on the assessee yet once he proves the identity of the creditors/share applicants by either furnishing their PAN number or income tax assessment number and shows the genuineness of transaction by showing money in his books either by account payee cheque or by draft or by any other mode, then the onus of proof would shift to the Revenue."
}
},
{
"from_name": null,
"id": "c525c3011b4d4e1f90d4f6b646a7d959",
"to_name": null,
"type": null,
"value": {
"end": 18602,
"labels": [
"ANALYSIS"
],
"start": 18456,
"text": "Just because the creditors/share applicants could not be found at the address given, it would not give the Revenue the right to invoke Section 68."
}
},
{
"from_name": null,
"id": "0a0a1b570fea492b82373fd01b5c3864",
"to_name": null,
"type": null,
"value": {
"end": 18722,
"labels": [
"ANALYSIS"
],
"start": 18603,
"text": "One must not lose sight of the fact that it is the Revenue which has all the power and wherewithal to trace any person."
}
},
{
"from_name": null,
"id": "2ccd03427b7646bd9e65e59660bcc37d",
"to_name": null,
"type": null,
"value": {
"end": 19088,
"labels": [
"PRE_RELIED"
],
"start": 18723,
"text": "Moreover, it is settled law that the assessee need not to prove the „source of source‟.\n 9. We also find that in the case of the respondent-assessee itself, a Division Bench of this Court in Commissioner of Income-tax v.\n Dwarikadhish investment (P.) Ltd. (2008) 167 Taxman 321 (Delhi) had dealt with a similar issue with regard to the Assessment year 1997- 98."
}
},
{
"from_name": null,
"id": "0687f99e3b284c8f982140cb55471269",
"to_name": null,
"type": null,
"value": {
"end": 19204,
"labels": [
"PRE_RELIED"
],
"start": 19089,
"text": "The relevant portion of the order passed by the Division Bench in the said judgment is reproduced hereinbelow:- “3."
}
},
{
"from_name": null,
"id": "818c1e00e8864fbdbfa83b19d18ce040",
"to_name": null,
"type": null,
"value": {
"end": 19283,
"labels": [
"PRE_RELIED"
],
"start": 19205,
"text": "The Assessing Officer required the assessees to furnish details and documents."
}
},
{
"from_name": null,
"id": "cb998cd6c4d541abb843b628a09f67d2",
"to_name": null,
"type": null,
"value": {
"end": 19501,
"labels": [
"PRE_RELIED"
],
"start": 19284,
"text": "The assessees produced copies of sale and purchase bills of the share brokers through whom the transactions took place and photocopies of confirmations of persons who had contributed the fresh share application money."
}
},
{
"from_name": null,
"id": "b9a5543cc0544e4ba579632d5c9890b6",
"to_name": null,
"type": null,
"value": {
"end": 19611,
"labels": [
"PRE_RELIED"
],
"start": 19502,
"text": "The assessees furnished the PAN (GIR) numbers of the applicants, the details of the cheque numbers and dates."
}
},
{
"from_name": null,
"id": "2e707439aee04acb8aa7ec1b9d61e919",
"to_name": null,
"type": null,
"value": {
"end": 19707,
"labels": [
"PRE_RELIED"
],
"start": 19611,
"text": "\n The assessees contended that letters sent to the shareholders had not been responded to."
}
},
{
"from_name": null,
"id": "fd8f1647239a464f9da3c54faaa772ae",
"to_name": null,
"type": null,
"value": {
"end": 19716,
"labels": [
"ANALYSIS"
],
"start": 19709,
"text": "4. "
}
},
{
"from_name": null,
"id": "d9b63d15709b4d158b0c2fc2e031905f",
"to_name": null,
"type": null,
"value": {
"end": 19897,
"labels": [
"ANALYSIS"
],
"start": 19716,
"text": "The Assessing Officer required the Assessee to furnish bank statement to substantiate the money availability with the Assessee and also to prove the genuineness of the transactions."
}
},
{
"from_name": null,
"id": "5a37a63185714dc8864f21401348f140",
"to_name": null,
"type": null,
"value": {
"end": 20098,
"labels": [
"ANALYSIS"
],
"start": 19898,
"text": "This not having been done, the Assessing Officer got enquiries made through an Income Tax Inspector who found that none of the applicants were found to exist at the address given in the confirmations."
}
},
{
"from_name": null,
"id": "995e12c7d4fb4e7a94262a6d77e2ceee",
"to_name": null,
"type": null,
"value": {
"end": 20478,
"labels": [
"ANALYSIS"
],
"start": 20099,
"text": "However, the report of the Income Tax Inspector was furnished to the assessees on 22nd February 2000 and the Assessment order was passed on the very next day, that is, 23rd February 2000 giving the assessees no time to respond.\n 5. Before the CIT (A) the assessees furnished additional evidence, copies of which were sent by the CIT (A) to the Assessing Officer for comments."
}
},
{
"from_name": null,
"id": "c70d41c782a24df6af0cbcfc114c6140",
"to_name": null,
"type": null,
"value": {
"end": 20591,
"labels": [
"ANALYSIS"
],
"start": 20479,
"text": "Despite reminders, no response was received from the Assessing Officer by the CIT(A) on the additional evidence."
}
},
{
"from_name": null,
"id": "e781b7915fc94a0a887abb7d747eb7b5",
"to_name": null,
"type": null,
"value": {
"end": 20641,
"labels": [
"ANALYSIS"
],
"start": 20592,
"text": "The CIT(A) then admitted the additional evidence."
}
},
{
"from_name": null,
"id": "1871aa110a764a9ebf9ae0929b6cce47",
"to_name": null,
"type": null,
"value": {
"end": 20772,
"labels": [
"ANALYSIS"
],
"start": 20642,
"text": "After examining the entire record, the CIT(A) deleted the addition on account of the unexplained share application money for……….\n "
}
},
{
"from_name": null,
"id": "04628c5c1c4b4e40b086851ab5e38ca9",
"to_name": null,
"type": null,
"value": {
"end": 20992,
"labels": [
"ANALYSIS"
],
"start": 20772,
"text": "6. In the appeal by the Revenue, the Tribunal found that the facts of the case were no different from those in the case of the group company of the present Assessee namely M/s.\n Dwarikadhish Financial Services."
}
},
{
"from_name": null,
"id": "5ffa11ccfc2047bcb46e761a8f0eb2ba",
"to_name": null,
"type": null,
"value": {
"end": 21128,
"labels": [
"ANALYSIS"
],
"start": 20993,
"text": "In the said case the Tribunal had deleted the addition made by the Assessing Officer on account of unexplained share application money."
}
},
{
"from_name": null,
"id": "5d330d0a69bc4ef1a95acbaea091f8c5",
"to_name": null,
"type": null,
"value": {
"end": 21258,
"labels": [
"PRE_RELIED"
],
"start": 21128,
"text": "\n The said decision was upheld by this Court in its order in CIT v. Dwarkadhish Financial Services [2005] 148 Taxman 54.\n 7."
}
},
{
"from_name": null,
"id": "f95034c6fe62489fa6e542d320e03065",
"to_name": null,
"type": null,
"value": {
"end": 21362,
"labels": [
"ANALYSIS"
],
"start": 21263,
"text": "That apart, the Tribunal again examined the documents giving the details of each of the applicants."
}
},
{
"from_name": null,
"id": "76fa1fd1359b46bea15a4988d7731886",
"to_name": null,
"type": null,
"value": {
"end": 21436,
"labels": [
"ANALYSIS"
],
"start": 21363,
"text": "It noted that ?the above documents were available on the file of the AO.?"
}
},
{
"from_name": null,
"id": "5cd6691c0fb141c280391b8ed685c1cc",
"to_name": null,
"type": null,
"value": {
"end": 21484,
"labels": [
"ANALYSIS"
],
"start": 21437,
"text": "Accordingly it dismissed the Revenue's appeals."
}
},
{
"from_name": null,
"id": "f00193c9e1aa46538f80d8d25609bf19",
"to_name": null,
"type": null,
"value": {
"end": 21669,
"labels": [
"ANALYSIS"
],
"start": 21492,
"text": "Learned counsel for the Revenue sought to distinguish this Court's decision in the case of the group company of the assessees, on the ground that the facts there were different."
}
},
{
"from_name": null,
"id": "83f0e7b1584e485fa907347186291416",
"to_name": null,
"type": null,
"value": {
"end": 21842,
"labels": [
"ANALYSIS"
],
"start": 21669,
"text": "\n However, we find that the findings of the CIT(A) as extracted hereinabove are sufficient to show that the additions made by the Assessing Officer were not justified."
}
},
{
"from_name": null,
"id": "5c6f39849fa64a328c3bab779bdfbeac",
"to_name": null,
"type": null,
"value": {
"end": 22346,
"labels": [
"ANALYSIS"
],
"start": 21843,
"text": "The reasoning and conclusions arrived at concurrently by the CIT(A) and the Tribunal suffer from no perversity and are consistent with the law as explained by this Court in Commissioner of Income Tax v. Divine Leasing and Finance Limited (ITA No. 53/2005 decided on 16th November, 2006) reported in (2007) 207 CTR (Del) 38 and in particular para 16 which reads thus: “In this analysis, a distillation of the precedents yields the following propositions of law in the context of Section 68 of the IT Act."
}
},
{
"from_name": null,
"id": "896e9dc99ce443b19489a40535e63745",
"to_name": null,
"type": null,
"value": {
"end": 22931,
"labels": [
"ANALYSIS"
],
"start": 22347,
"text": "The Assessee has to prima facie prove (1) the identity of the creditor/subscriber; (2) the genuineness of the transaction, namely, whether it has been transmitted through banking or other indisputable channels; (3) the credit worthiness or financial strength of the creditor/subscriber; (4) if relevant details of the address or PAN identity of the creditor/subscriber are furnished to the Department along with copies of the Shareholders Register, Shared Application Forms, Share Transfer Register etc., it would constitute acceptable proof or acceptable explanation by the Assessee;"
}
},
{
"from_name": null,
"id": "cc2aed5a375e4a388178c804fab261e3",
"to_name": null,
"type": null,
"value": {
"end": 23321,
"labels": [
"ANALYSIS"
],
"start": 22932,
"text": "(5) The Department would not be justified in drawing an adverse inference only because the creditor/subscriber fails or neglects to respond to its notices; (6) the onus would not stand discharged if the creditor/subscriber denies or repudiates the transaction set up by the Assessee nor should the AO take such repudiation at face value and construe it, without more, against the Assessee."
}
},
{
"from_name": null,
"id": "6a07c25daef745869eb1742cd3670cd0",
"to_name": null,
"type": null,
"value": {
"end": 23498,
"labels": [
"ANALYSIS"
],
"start": 23322,
"text": "(7) The Assessing Officer is duty-bound to investigate the credit worthiness of the creditor/subscriber the genuineness of the transaction and the veracity of the repudiation.”"
}
},
{
"from_name": null,
"id": "532fe4bef18a4cafac9e70aed80460c9",
"to_name": null,
"type": null,
"value": {
"end": 23507,
"labels": [
"ANALYSIS"
],
"start": 23499,
"text": "(p. 453)"
}
},
{
"from_name": null,
"id": "efad983c96014eeb8db2b240bc2daf4f",
"to_name": null,
"type": null,
"value": {
"end": 23514,
"labels": [
"ANALYSIS"
],
"start": 23508,
"text": "9. "
}
},
{
"from_name": null,
"id": "c749b4c8739844a08e54629abf53dc15",
"to_name": null,
"type": null,
"value": {
"end": 23593,
"labels": [
"ANALYSIS"
],
"start": 23514,
"text": "We are of the view that no substantial question of law arises in these appeals."
}
},
{
"from_name": null,
"id": "6e18fa258b6745658f71fa65c15af279",
"to_name": null,
"type": null,
"value": {
"end": 23636,
"labels": [
"ANALYSIS"
],
"start": 23594,
"text": "Accordingly, these appeals are dismissed.”"
}
},
{
"from_name": null,
"id": "b1f373dd8e6a468b88a43656c735b298",
"to_name": null,
"type": null,
"value": {
"end": 23644,
"labels": [
"ANALYSIS"
],
"start": 23637,
"text": "10. "
}
},
{
"from_name": null,
"id": "76f6eb8dcfd745848c89ea3921806f80",
"to_name": null,
"type": null,
"value": {
"end": 23821,
"labels": [
"ANALYSIS"
],
"start": 23644,
"text": "We are also informed that a Special Leave Petition against the aforesaid Division Bench judgment in the case of the respondent- assessee has been dismissed by the Supreme Court."
}
},
{
"from_name": null,
"id": "889e229ba78c49de997c5139aaeedc14",
"to_name": null,
"type": null,
"value": {
"end": 24111,
"labels": [
"ANALYSIS"
],
"start": 23822,
"text": "Accordingly, we are of the opinion that no question of law arises in the present cases as the matter is fully covered by the judgment of the Supreme Court in Lovely Exports (P) Ltd. (supra) as well as the Division Bench judgment of this Court in the case of the respondent-assessee itself."
}
},
{
"from_name": null,
"id": "7b869e5ef2834bd4a0ac51000a15c675",
"to_name": null,
"type": null,
"value": {
"end": 24201,
"labels": [
"ANALYSIS"
],
"start": 24111,
"text": "\n 11. Consequently, we are of the view that the present appeals amount to relitigation."
}
},
{
"from_name": null,
"id": "4d8c3be4051f4686a8e24ec6f84c0e8e",
"to_name": null,
"type": null,
"value": {
"end": 24474,
"labels": [
"PRE_RELIED"
],
"start": 24202,
"text": "The Supreme Court in K.K. Modi Vs. K.N. Modi and Ors., (1998) 3 SCC 573 has held, “It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him.\n "
}
},
{
"from_name": null,
"id": "fec6be4458c94dea8f69949940744a6e",
"to_name": null,
"type": null,
"value": {
"end": 24531,
"labels": [
"PRE_RELIED"
],
"start": 24474,
"text": "The reagitation may or may not be barred as res judicata."
}
},
{
"from_name": null,
"id": "61c114d15e5f4e2190daa1ecf50f0d87",
"to_name": null,
"type": null,
"value": {
"end": 24642,
"labels": [
"PRE_RELIED"
],
"start": 24532,
"text": "But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court…..”."
}
},
{
"from_name": null,
"id": "88812725b79e4e57b341f7914a2ae155",
"to_name": null,
"type": null,
"value": {
"end": 24859,
"labels": [
"RATIO"
],
"start": 24644,
"text": "12. Though we were initially inclined to impose costs yet we are of the opinion that ends of justice would be met by giving a direction to the Revenue to be more careful before filing appeals in a routine manner."
}
},
{
"from_name": null,
"id": "6808568396354ccd9e9f8329d43ce4bb",
"to_name": null,
"type": null,
"value": {
"end": 24987,
"labels": [
"RATIO"
],
"start": 24860,
"text": "In our view, appeal should not be filed in matters where either no question of law arises or the issue of law is a settled one."
}
},
{
"from_name": null,
"id": "dac1f08fa35347d7bcee3758674460b5",
"to_name": null,
"type": null,
"value": {
"end": 25098,
"labels": [
"RATIO"
],
"start": 24988,
"text": "We give this direction because the „judicial capital‟ in terms of manpower and resources is extremely limited."
}
},
{
"from_name": null,
"id": "fe62457007644ea897349b156ee8b5b3",
"to_name": null,
"type": null,
"value": {
"end": 25239,
"labels": [
"RPC"
],
"start": 25098,
"text": "\n 13. Registry is directed to communicate copies of this order to all the Chief Commissioners of Income Tax in Delhi for necessary action."
}
},
{
"from_name": null,
"id": "6c73ad71b01d4f0d8841d7d538415593",
"to_name": null,
"type": null,
"value": {
"end": 25349,
"labels": [
"RPC"
],
"start": 25239,
"text": "\n With the aforesaid direction, the present appeals are dismissed in limine but without any order as to costs."
}
},
{
"from_name": null,
"id": "7a596d98be0949e6acfc1b73f52ad351",
"to_name": null,
"type": null,
"value": {
"end": 25400,
"labels": [
"NONE"
],
"start": 25349,
"text": "\n MANMOHAN, J.\n CHIEF JUSTICE August 02, 2010 rn/ng"
}
}
]
}
] | 4,153 | {
"text": " #12-13\n$~\n* IN THE HIGH COURT OF DELHI AT NEW DELHI\n12.\n+ ITA 911/2010\n\nCOMMISSIONER OF\nINCOME TAX-IV ..... Appellant\n Through: Mr. N.P. Sahni, Senior Standing\n Counsel\n versus\n\n\nM/S. DWARKADHISH\nINVESTMENT (P) LTD. ..... Respondent\n Through: None\n\n\n AND\n\n13.\n+ ITA 913/2010\n\nCOMMISSIONER OF\nINCOME TAX-IV ..... Appellant\n Through: Mr. N.P. Sahni, Senior Standing\n Counsel\n versus\n\nM/S. DWARKADHISH\nCAPITAL (P) LTD. ..... Respondent\n Through: None\n\n Reserved on : 23rd July, 2010\n% Date of Decision: 2nd August, 2010\n\nCORAM:\nHON'BLE THE CHIEF JUSTICE\nHON'BLE MR. JUSTICE MANMOHAN\n\n1. Whether the Reporters of local papers may be allowed to see the judgment? Yes\n2. To be referred to the Reporter or not? Yes\n3. Whether the judgment should be reported in the Digest? Yes\n\n\n\n\n\n JUDGMENT\nMANMOHAN, J CM 12293/2010 in ITA 911/2010 Allowed, subject to all just exceptions.\n CM 12294/2010 in ITA 911/2010 & CM 12296/2010 in ITA 913/2010 For the reasons stated in the applications, delay in re-filing the appeals is condoned.\n Applications stand disposed of.\n ITA 911/2010 & ITA 913/2010 1. The present appeals have been filed under Section 260A of Income Tax Act, 1961 (for brevity “Act, 1961”) challenging the common order dated 29th May, 2009 passed by the Income Tax Appellate Tribunal (in short “ITAT”) in ITA Nos. 4799/Del/04 and 4800/Del/04, for the Assessment Year 2001-2002. Since similar issue is involved in both the appeals, we are passing a common order.\n However, for the purpose of noting the facts, we are referring to ITA No. 911/2010.\n 2. The relevant facts are that the respondent-assessee was incorporated on 23rd March, 1985. It was engaged in the business of financing and trading of shares. On 22nd October, 2001, assessee filed a return declaring NIL income. The return was initially processed under Section 143(1) of Act, 1961. However, subsequently on 21st October, 2002 the case was selected for scrutiny and notice under Section 143(2) of Act, 1961 was issued to the respondent-assessee. On scrutiny of accounts, the Assessing Officer (in short “AO”) found an addition of Rs. 71,75,000/- in the share capital of the assessee. The AO sought an explanation of the assessee about this addition in the share capital. The assessee vide letter dated 13th August, 2003 offered a detailed explanation.\n 3. However, according to the AO, the assessee failed to explain the addition of share application money from five of its subscribers.\n Accordingly, AO made an addition of Rs. 35,50,000/- with the aid of Section 68 of Act, 1961 on account of unexplained cash credits appearing in the books of the assessee. However, in appeal, the Commissioner of Income Tax (Appeals) [in short “CIT(A)”] deleted the addition on the ground that the assessee had proved the existence of the shareholders and the genuineness of the transaction. The relevant portion of the order passed by the CIT(A) is reproduced hereinbelow :- “2.12 The authorized representative of the applicant has stated that in the written submission that following documents have been filed to prove the identity of share applicants: 1. Copies of Certificate of incorporation in respect of the corporate applicants.\n 2. Copy of Memorandum and Articles of Association of the corporate applicants.\n 3. Copies of acknowledgement of returns filed/income tax orders in the case of the applicants.\n 4. Sworn affidavits from the applicants regarding investment in the appellant company.\n 5. Copy of Bank accounts of shareholders.\n 6. Copies of documents obtained from Registrar of Companies.\n 7. Copies of annual returns filed under the Companies Act.\n 8. Other relevant documents, wherever available, evidencing the existence and genuineness of the applicants.\n xxxx xxxx xxxx xxxx 2.21 I have considered the submission made by the authorized representative of the appellant and the facts stated in the assessment order. It is observed that the addition made by the assessing officer on account of unexplained share application money cannot be sustained for the following reasons:- (i) The applicants concerned were identified.\n (ii) The applicants confirmed the payment of money to the appellant for purchase of shares.\n (iii) The transactions in question were by cheques.\n (iv) The affidavit of the subscribers were filed indicating their full address, details of deposits made with the appellant and sources where from money was obtained to make the deposits. Copies of bank accounts were furnished. These affidavits were notarized. There was no ground for disbelieving the contents of the affidavits.\n (v) Most of the subscribers were companies incorporated with the Registrar of Companies. Proper inquiries would have revealed the true facts of the case. The appellant cannot be faulted if there was no time to give them an opportunity to rebut the Inspector‟s report made at the back of the appellant.\n (vi) The deposits were not of an order that could not be believed.\n (vii) The shares have been allotted to the shareholders and letter of allotment have been submitted to the Registrar of Companies.\n (viii) The existence of these companies (i.e.\n depositors of shares application money) has also been verified from the website of Department of Companies Affairs. The existence of the shareholders, therefore cannot be doubted.\n 2.22 In the interest of justice, I scrutinized all the available information and I am of the view that in the facts and circumstances, this is not a fit case for not accepting the genuineness of the deposits. The identity of the subscribers and the genuineness of the transactions have been established…..” 4. The ITAT confirmed the order of the CIT(A) as it was also of the opinion that the assessee had been able to prove the identity of the share applicants and the share application money had been received by way of account payee cheques. In reaching this conclusion, the ITAT had relied upon a Division Bench judgment of this Court in Commissioner of Income Tax Vs. Divine Leasing & Finance Ltd., (2008) 299 ITR 268 (Delhi).\n 5. Mr. N.P. Sahni, learned standing counsel for the Revenue submitted that the ITAT had erred in law in deleting the addition made by the AO under Section 68 of Act, 1961 as the assessee had failed to discharge the burden in respect of the identity of the share applicants, genuineness of transaction and creditworthiness of share applicants. In support of his submission, he relied upon following judgments :- A) CIT Vs. Rathi Finlease Ltd., 215 CTR 167 (M.P.) wherein it has been held as under :- “17. ……S.68 of the Act enjoined the assessee to offer an explanation about the nature and source of the sum found credited in his books and if the explanation was not satisfactory, the amount can be credited and charged to income-tax as income of the assessee. Since the assessee, though tried to explain the genuineness of the credit on the basis of letters of confirmation, it could not be explained as to how the transaction was materialized when the companies were not in existence and the amount was paid by cheque only on the date on which the amount was credited to the account of the company. It was for the assessee to discharge this burden…………” B) CIT vs. Kundan Investment Ltd., 263 ITR 626 (Cal.) wherein it has been held as under :- “……….Under Section 68, the Income-tax Officer is empowered to lift the veil of corporate identity and find out as to whether the apparent is real. It is the assessee on whom the onus lies. Unless sufficient materials are produced, the onus does not shift on the Revenue. But once the materials are scrutinized and the result of the scrutiny is communicated to the assessee, the onus shifts from the Revenue to the assessee. Then the assessee has to take appropriate steps for proving its case. Unless there are sufficient materials after such communication, produced by the assessee, the Income-tax Officer can do no further.” C) Commissioner of Income Tax vs. Sophia Finance Limited, 205 ITR 98 (Del) wherein it has been held as under :- “………..As we read Section 68 it appears that whenever a sum is found credited in the books of account of the assessee then, irrespective of the colour or the nature of the sum received which is sought to be given by the assessee, the Income tax Officer has the jurisdiction to enquire from the assessee the nature and source of the said amount. When an explanation in regard thereto is given by the assessee, then it is for the Income tax Officer to be satisfied whether the said explanation is correct or not. It is in this regard that enquiries are usually made in order to find out as to whether, firstly, the persons from whom money is alleged to have been received actually existed or not. Secondly, depending upon the facts of each case, the Income tax Officer may even be justified in trying to ascertain the source of the depositor, assuming he is identified, in order to determine whether that depositor is a mere name lender or not. Be that as it may, it is clear that the Income tax Officer has jurisdiction to make enquiries with regard to the nature and source of a sum credited in the books of account of an assessee and it would be immaterial as to whether the amount so credited is given the colour of a loan or a sum representing the sale proceeds or even receipt of share application money. The use of the words “any sum found credited in the books” in section 68 indicates that the said section is very widely worded and an Income tax officer is not precluded from making an enquiry as to the true nature and source thereof even if the same is credited as receipt of share application money.\n xxxx xxxx xxxx xxxx …………..On the basis of the language used under Section 68 and the various decisions of different High Courts and the Apex Court, the only conclusion which could be arrived at is: (i)that there is no distinction between the cash credit entry existing in the books of the firm whether it is of a partner or of a third party, (ii) that the burden to prove the identity, capacity and genuineness has to be on the assessee, (iii) if the cash credit is not satisfactorily explained the Income Tax Officer is justified to treat it as Income from “undisclosed sources”, (iv) the firm has to establish that the amount was actually given by the lender, (v) the genuineness and regularity in the maintenance of the account has to be taken into consideration by the taxing authorities, (vi) if the explanation is not supported by any documentary or other evidence, then the deeming fiction credited by Section 68 can be invoked. In these circumstances, we are of the view that simply because the amount is credited in the books of the firm in the partner‟s capital account it cannot be said that it is not the undisclosed income of the firm and in all cases it has to be assessed as an undisclosed income of the partner alone. In these circumstances, we are of the view that the Tribunal was not justified in holding that the cash credits of Rs.11,502 in the account of Shri Kishorilal, one of the partners, could not be assessed in the hands of the firm and in deleting the same. Since the matter was not considered by the Tribunal on the merits, the Tribunal would be free to hear the arguments of both the parties and decide afresh in view of the observations made above.\n Accordingly, the reference is answered in favour of the Revenue and against the assessee.\n D) CIT vs. Korlay Trading Co. Ltd., 232 ITR 820 (Cal) wherein it has been held as under :- “……….There should be a genuine transaction. The income tax file number has been given but that is not enough to prove the genuineness of the cash credit. Admittedly, there is no affidavit to this effect, by the creditor, on record. Considering these facts, we find that the finding of the Tribunal in this regard is perverse.\n The assessee has failed to prove the genuineness of the cash credit…… E) CIT vs. Shiv Shakti Timber, 229 ITR 505 (MP) wherein it has been held as under :- “……Therefore, from the series of decisions of various High Courts, it is well established that in such a situation where there is a credit entry in the books of account of the assessee and there is no satisfactory explanation, then it will be deemed to be the income of the firm and will be added to the income of the firm and can be accordingly taxed. The view taken by the Tribunal appears to be erroneous of the face of it.” F) Sumati Dayal vs. CIT, 214 ITR 801 (SC) wherein the Apex Court has held as under :- “It is no doubt true that in all cases in which a receipt is sought to be taxed as Income, the burden lies upon the Department to prove that it is within the taxing provision and if a receipt is in the nature of income, the burden of provind that it is not taxable because it falls within the exemption provided by the Act lies upon the assessee. (See Parimisetti Seetharamamma [1965] 57 ITR 532 at page 536). But, in view of Section 68 of the Act, where any sum is found credited in the books of the assessee for any previous year, the same may be charged to income tax as the income of the assessee of that previous year if the explanation offered by the assessee about the nature and source thereof is, in the opinion of the Assessing Officer, not satisfactory. In such a case there is, prima facie, evidence against the assessee, viz. the receipt of money, and if he fails to rebut it the said evidence being unrebutted, can be used against him by holding that it was a receipt of an income nature. While considering the explanation of the assessee the Department cannot, however, act unreasonably.\n xxxx xxxx xxxx xxxx …………..This raises the question whether the apparent can be considered as the real. As laid down by this Court the apparent must be considered the real until it is shown that there are reasons to believe that the apparent is not the real and that the taxing authorities are entitled to look into the surrounding circumstances to find out the reality and the matter has to be considered by applying the test of human probabilities…….\n xxxx xxxx xxxx xxxx This, in our opinion, is a superficial approach to the problem.\n The matter has to be considered in the light of human probabilities…………..\n G) CIT Vs. Divine Leasing and Finance Ltd. (supra) wherein it has been ruled thus :- “There cannot be two opinions on the aspect that the pernicious practice of conversion of unaccounted money through the masquerade or channel of investment in the share capital of a company must be firmly excoriated by the Revenue. Equally, where the preponderance of evidence indicates absence of culpability and complexity of the assessee it should not be harassed by the Revenue‟s insistence that it should prove the negative. In the case of a public issue, the company concerned cannot be expected to know every detail pertaining to the identity as well as financial worth of each of its subscribers. The company must, however, maintain and make available to the Assessing Officer for his perusal, all the information contained in the statutory share application documents. In the case of private placement the legal regime would not be the same. A delicate balance must be maintained while walking the tightrope of Sections 68 and 69 of the Income Tax Act. The burden of proof can seldom be discharged to the hilt by the assessee; if the Assessing Officer harbours doubts of the legitimacy of any subscription he is empowered, nay duty bound, to carry out thorough investigations. But if the Assessing Officer fails to unearth any wrong or illegal dealings, he cannot obdurately adhere to his suspicions and treat the subscribed capital as the undisclosed income of the company.” 6. In our opinion, as Section 68 of Act, 1961 has been interpreted as recently as 2008 by a Division Bench of this Court in Divine Leasing & Finance Ltd. (supra) after considering all the relevant judgments, we do not have to reconsider all the judgments referred to by Mr. Sahni which are prior in date and time to the aforesaid judgment. In fact, a Special Leave Petition filed against the said Division Bench judgment was dismissed by the Supreme Court by way of a speaking order in Commissioner of Income Tax Vs. Lovely Exports (P) Ltd., 216 CTR 195 (SC). The Supreme Court in Lovely Exports (P) Ltd. (supra), has held as under:- “2. Can the amount of share money be regarded as undisclosed income under s. 68 of IT Act, 1961? We find no merit in this Special Leave Petition for the simple reason that if the share application money is received by the assessee company from alleged bogus shareholders, whose names are given to the AO, then the Department is free to proceed to reopen their individual assessments in accordance with law.\n Hence, we find no infirmity with the impugned judgment……” 7. Consequently, the doctrine of merger would apply and the judgment of the Supreme Court in Lovely Exports (P) Ltd. (supra) would cover the field with regard to interpretation of Section 68 of Act, 1961.\n 8. In any matter, the onus of proof is not a static one. Though in Section 68 proceedings, the initial burden of proof lies on the assessee yet once he proves the identity of the creditors/share applicants by either furnishing their PAN number or income tax assessment number and shows the genuineness of transaction by showing money in his books either by account payee cheque or by draft or by any other mode, then the onus of proof would shift to the Revenue. Just because the creditors/share applicants could not be found at the address given, it would not give the Revenue the right to invoke Section 68. One must not lose sight of the fact that it is the Revenue which has all the power and wherewithal to trace any person. Moreover, it is settled law that the assessee need not to prove the „source of source‟.\n 9. We also find that in the case of the respondent-assessee itself, a Division Bench of this Court in Commissioner of Income-tax v.\n Dwarikadhish investment (P.) Ltd. (2008) 167 Taxman 321 (Delhi) had dealt with a similar issue with regard to the Assessment year 1997- 98. The relevant portion of the order passed by the Division Bench in the said judgment is reproduced hereinbelow:- “3. The Assessing Officer required the assessees to furnish details and documents. The assessees produced copies of sale and purchase bills of the share brokers through whom the transactions took place and photocopies of confirmations of persons who had contributed the fresh share application money. The assessees furnished the PAN (GIR) numbers of the applicants, the details of the cheque numbers and dates.\n The assessees contended that letters sent to the shareholders had not been responded to.\n 4. The Assessing Officer required the Assessee to furnish bank statement to substantiate the money availability with the Assessee and also to prove the genuineness of the transactions. This not having been done, the Assessing Officer got enquiries made through an Income Tax Inspector who found that none of the applicants were found to exist at the address given in the confirmations. However, the report of the Income Tax Inspector was furnished to the assessees on 22nd February 2000 and the Assessment order was passed on the very next day, that is, 23rd February 2000 giving the assessees no time to respond.\n 5. Before the CIT (A) the assessees furnished additional evidence, copies of which were sent by the CIT (A) to the Assessing Officer for comments. Despite reminders, no response was received from the Assessing Officer by the CIT(A) on the additional evidence. The CIT(A) then admitted the additional evidence. After examining the entire record, the CIT(A) deleted the addition on account of the unexplained share application money for……….\n 6. In the appeal by the Revenue, the Tribunal found that the facts of the case were no different from those in the case of the group company of the present Assessee namely M/s.\n Dwarikadhish Financial Services. In the said case the Tribunal had deleted the addition made by the Assessing Officer on account of unexplained share application money.\n The said decision was upheld by this Court in its order in CIT v. Dwarkadhish Financial Services [2005] 148 Taxman 54.\n 7. That apart, the Tribunal again examined the documents giving the details of each of the applicants. It noted that ?the above documents were available on the file of the AO.? Accordingly it dismissed the Revenue's appeals.\n Learned counsel for the Revenue sought to distinguish this Court's decision in the case of the group company of the assessees, on the ground that the facts there were different.\n However, we find that the findings of the CIT(A) as extracted hereinabove are sufficient to show that the additions made by the Assessing Officer were not justified. The reasoning and conclusions arrived at concurrently by the CIT(A) and the Tribunal suffer from no perversity and are consistent with the law as explained by this Court in Commissioner of Income Tax v. Divine Leasing and Finance Limited (ITA No. 53/2005 decided on 16th November, 2006) reported in (2007) 207 CTR (Del) 38 and in particular para 16 which reads thus: “In this analysis, a distillation of the precedents yields the following propositions of law in the context of Section 68 of the IT Act. The Assessee has to prima facie prove (1) the identity of the creditor/subscriber; (2) the genuineness of the transaction, namely, whether it has been transmitted through banking or other indisputable channels; (3) the credit worthiness or financial strength of the creditor/subscriber; (4) if relevant details of the address or PAN identity of the creditor/subscriber are furnished to the Department along with copies of the Shareholders Register, Shared Application Forms, Share Transfer Register etc., it would constitute acceptable proof or acceptable explanation by the Assessee; (5) The Department would not be justified in drawing an adverse inference only because the creditor/subscriber fails or neglects to respond to its notices; (6) the onus would not stand discharged if the creditor/subscriber denies or repudiates the transaction set up by the Assessee nor should the AO take such repudiation at face value and construe it, without more, against the Assessee. (7) The Assessing Officer is duty-bound to investigate the credit worthiness of the creditor/subscriber the genuineness of the transaction and the veracity of the repudiation.” (p. 453) 9. We are of the view that no substantial question of law arises in these appeals. Accordingly, these appeals are dismissed.” 10. We are also informed that a Special Leave Petition against the aforesaid Division Bench judgment in the case of the respondent- assessee has been dismissed by the Supreme Court. Accordingly, we are of the opinion that no question of law arises in the present cases as the matter is fully covered by the judgment of the Supreme Court in Lovely Exports (P) Ltd. (supra) as well as the Division Bench judgment of this Court in the case of the respondent-assessee itself.\n 11. Consequently, we are of the view that the present appeals amount to relitigation. The Supreme Court in K.K. Modi Vs. K.N. Modi and Ors., (1998) 3 SCC 573 has held, “It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him.\n The reagitation may or may not be barred as res judicata. But if the same issue is sought to be reagitated, it also amounts to an abuse of the process of the court…..”.\n 12. Though we were initially inclined to impose costs yet we are of the opinion that ends of justice would be met by giving a direction to the Revenue to be more careful before filing appeals in a routine manner. In our view, appeal should not be filed in matters where either no question of law arises or the issue of law is a settled one. We give this direction because the „judicial capital‟ in terms of manpower and resources is extremely limited.\n 13. Registry is directed to communicate copies of this order to all the Chief Commissioners of Income Tax in Delhi for necessary action.\n With the aforesaid direction, the present appeals are dismissed in limine but without any order as to costs.\n MANMOHAN, J.\n CHIEF JUSTICE August 02, 2010 rn/ng "
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"text": " THE HIGH COURT OF JUDICATURE AT BOMBAY,\n\n AURANGABAD BENCH, AURANGABAD\n\n CRIMINAL WRIT PETITION"
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"text": "\n\nAbdul Riyaz s/o Abdul Bashid Kazi,"
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"start": 182,
"text": "..Petitioner\n\nage 22 years, occ. Nil,\nr/o Central Prison Harsul,\n\nAurangabad\n\n VERSUS\n\nThe State of Maharashtra ..Respondent\n\n .....\nShri D.S.Manorkar, advocate for the petitioner\nShri B.J.Sonwane, A.P.P. for the respondent.\n\n .....\n\n CORAM :"
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"text": "SHRIHARI P.DAVARE, JJ.\n\n DATE OF RESERVING"
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"text": "THE JUDGMENT : 24.9.2009\n\n DATE OF PRONOUNCING"
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"text": "(Per Shrihari P.Davare, J.) 1 Perused."
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"text": "Rule made returnable forthwith and by consent of the learned respective counsel for the parties, taken up for final hearing."
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"text": "\n 3 The petitioner, namely Abdul Riyaz s/o Abdul Bashid Kazi, who has been convicted under Section 302 r/w Section 34 of the Indian Penal Code along with his father and 3 elder brothers, was sentenced to suffer R.I.\n for life and fine by the judgment and order rendered by the Additional Sessions Judge, Udgir in Sessions Case No.\n 52 of 2003 on 10.6.2004."
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{
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"text": "The petitioner challenged the said judgment and order in Appeal No. 489 of 2004 before this court and this court confirmed the said judgment and order of the conviction and sentence awarded by the Additional Sessions Judge, Udgir on 2.2.2006."
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{
"from_name": null,
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"end": 1809,
"labels": [
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"text": "Thereafter the petitioner preferred Special Leave Petition No. 1531 of 2007 before Honourable Supreme Court along with application for delay condonation."
}
},
{
"from_name": null,
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"end": 1962,
"labels": [
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],
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"text": "The Honourable Supreme Court allowed the said application for condonation of delay, but rejected the Special Leave Petition by its order dated 9.2.2007."
}
},
{
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"value": {
"end": 2110,
"labels": [
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],
"start": 1963,
"text": "Accordingly, the conviction and sentence of life imprisonment inflicted upon the petitioner herein was confirmed upto the Honourable Supreme Court."
}
},
{
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"to_name": null,
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"end": 2322,
"labels": [
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],
"start": 2112,
"text": "4 By the present petition, the petitioner has raised the contention that his death of birth is 15.6.1986 and hence, on the date of commission of offence i.e. 12.8.2003 his age was 17 years 1 month and 27 days."
}
},
{
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"to_name": null,
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"labels": [
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],
"start": 2323,
"text": "To substantiate the date of birth, the petitioner produced his school leaving certificate disclosing his afore said date of birth therein."
}
},
{
"from_name": null,
"id": "380e2c3caba54ff995f8bf6ffa968c59",
"to_name": null,
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"end": 3035,
"labels": [
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"start": 2461,
"text": "\n 5 Basing upon the afore said date of birth and also basing upon the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, as amended by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 and more particularly in accordance with Section 7-A thereof, the petitioner claims juvenility and contends that he was juvenile in conflict with law in view of the provisions of Section 7-A r/w Section 2 (l) of the the Juvenile Justice (Care and Protection of Children) Act, 2000 on the date of commission of offence i.e.\n 12.8.2003."
}
},
{
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"to_name": null,
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"end": 3349,
"labels": [
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],
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"text": "Accordingly, the petitioner prays that benefit of the said provisions of Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000, as amended by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 be given to the petitioner and he be released from the jail forthwith."
}
},
{
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"to_name": null,
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"end": 3746,
"labels": [
"ANALYSIS"
],
"start": 3349,
"text": "\n 6 The learned counsel for the petitioner placed reliance on the provisions of Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as, `the Act of 2000') as amended in 2006 with effect from 22.8.2006, whereby provisions of Section 7-A were introduced by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 (33 of 2006)."
}
},
{
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"type": null,
"value": {
"end": 3879,
"labels": [
"STA"
],
"start": 3747,
"text": "Section 7-A of the Act of 2000 reads as under :- \"7-A. Procedure to be followed when claim of juvenility is raised before any Court."
}
},
{
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"id": "7f3e7ff7aab241859abe096265fcd311",
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],
"start": 3880,
"text": "-- (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 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 recognized 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 sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect."
}
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{
"from_name": null,
"id": "c4793701ead64bd7a7242fb2d788eb4d",
"to_name": null,
"type": null,
"value": {
"end": 5131,
"labels": [
"ANALYSIS"
],
"start": 4941,
"text": "\"\n 7 Reliance was also placed on the provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as, `the Rules of 2007' for short)."
}
},
{
"from_name": null,
"id": "1a50c2e63dec41f99c73685fe05f1805",
"to_name": null,
"type": null,
"value": {
"end": 5253,
"labels": [
"STA"
],
"start": 5132,
"text": "Rule 12 of the Rules of 2007 reads as under :- \"12. Procedure to be followed in determination of age :-- (1) "
}
},
{
"from_name": null,
"id": "ee3f34a588a449e9bdf3a850065957e8",
"to_name": null,
"type": null,
"value": {
"end": 5594,
"labels": [
"STA"
],
"start": 5253,
"text": "In every case concerning a child or a juvenile in conflict with law, the Court or the Board, as the case may be, the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose."
}
},
{
"from_name": null,
"id": "f9a258674a79424d8b750a374336afa9",
"to_name": null,
"type": null,
"value": {
"end": 6664,
"labels": [
"STA"
],
"start": 5594,
"text": "\n (2) The Court or the Board or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearances or documents, if available, and send him to the observation home or in jail.\n (3) 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": "84eb1de374d648b4ae85b6eb45a7007a",
"to_name": null,
"type": null,
"value": {
"end": 7373,
"labels": [
"STA"
],
"start": 6665,
"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": "937c3dca87bb447fb8e01747b866f68b",
"to_name": null,
"type": null,
"value": {
"end": 8190,
"labels": [
"STA"
],
"start": 7373,
"text": "\n (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or, as the case may be, the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.\n (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7-A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule."
}
},
{
"from_name": null,
"id": "6fdb9c5c5722499d9e17b705890c2fae",
"to_name": null,
"type": null,
"value": {
"end": 8545,
"labels": [
"STA"
],
"start": 8190,
"text": "\n (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
}
},
{
"from_name": null,
"id": "b2d5d49c3d3b4adfb5329946b55e8695",
"to_name": null,
"type": null,
"value": {
"end": 9069,
"labels": [
"STA"
],
"start": 8546,
"text": "\"\n 8 We find it necessary here itself to refer to Section 6 of the Act of 2000, which refers to powers of Juvenile Justice Board and Section 6 reads as under :- \" 6. Powers of Juvenile Justice Board :-- (1) Where a Board has been constituted for any district, such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law."
}
},
{
"from_name": null,
"id": "e012a270dcba416a833053a78e67a8d6",
"to_name": null,
"type": null,
"value": {
"end": 9268,
"labels": [
"STA"
],
"start": 9069,
"text": "\n (2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise."
}
},
{
"from_name": null,
"id": "8965f42ab5004edd943a66af4e999c4a",
"to_name": null,
"type": null,
"value": {
"end": 9783,
"labels": [
"STA"
],
"start": 9269,
"text": "\"\n 9 The above referred Section 7-A of the Act of 2000 contemplates that wherever claim of juvenility is raised before any court, the court shall make an inquiry so as to determine the age of such person and hence, by our order dated 5.8.2009, directions were issued by us to the concerned officers to take steps to produce original record concerning the date of birth of the petitioner, like original birth certificate, original school leaving certificate from Jamhoor Urdu Primary School, Udgir, District Latur."
}
},
{
"from_name": null,
"id": "e2fb52784c7b48e88c85b3f46636b8c0",
"to_name": null,
"type": null,
"value": {
"end": 9950,
"labels": [
"ANALYSIS"
],
"start": 9784,
"text": "It was also directed that the police inspector shall also take steps to secure any original register maintained by the School showing date of birth of the petitioner."
}
},
{
"from_name": null,
"id": "0244924b3a61481da1f9ceb3143b693b",
"to_name": null,
"type": null,
"value": {
"end": 10229,
"labels": [
"ANALYSIS"
],
"start": 9951,
"text": "It was further directed that steps be taken to secure original record of the petitioner's Higher Secondary studies in Jamhoor Secondary & Higher Secondary School (Jr. College), Udgir, District Latur for securing original record mainly reflecting date of birth of the petitioner."
}
},
{
"from_name": null,
"id": "631001bd33a14ef4ab4958795833a975",
"to_name": null,
"type": null,
"value": {
"end": 10494,
"labels": [
"ANALYSIS"
],
"start": 10229,
"text": "\n 10 Accordingly, Dhondiram Shetiba Gaikwad, P.S.I.\n Udgir Rural Police Station, Udgir, District Latur filed affidavit in reply and stated that at the time of commission of the offence i.e. 12.8.2003, the petitioner was juvenile and his date of birth is 15.6.1986."
}
},
{
"from_name": null,
"id": "e4dff08483bf4c069acfd55c2451590c",
"to_name": null,
"type": null,
"value": {
"end": 10621,
"labels": [
"ANALYSIS"
],
"start": 10495,
"text": "It is also submitted by the respondent that the petitioner was below age of 18 years on the date of commission of the offence."
}
},
{
"from_name": null,
"id": "5465ad8f65cf4bb4bf06a77f83af305f",
"to_name": null,
"type": null,
"value": {
"end": 10866,
"labels": [
"ANALYSIS"
],
"start": 10622,
"text": "He further submitted that as per the directions of this Court, he received the school leaving certificate of the petitioner from Jamhoor Primary School, Udgir, District Latur, which reveals that the date of birth of the petitioner is 15.6.1986."
}
},
{
"from_name": null,
"id": "ec7d25880b754703ab041ad8e5f36908",
"to_name": null,
"type": null,
"value": {
"end": 11005,
"labels": [
"ANALYSIS"
],
"start": 10867,
"text": "He also stated that he collected bona fide certificate from the said school, wherein the petitioner's date of birth is shown as 15.6.1986."
}
},
{
"from_name": null,
"id": "6bb4fcc649214220a4d970b90108a677",
"to_name": null,
"type": null,
"value": {
"end": 11110,
"labels": [
"ANALYSIS"
],
"start": 11006,
"text": "The respondent has annexed both the said certificates along with the reply at Annexure R-I collectively."
}
},
{
"from_name": null,
"id": "c97bf7ab43fa42579b09f18a2f8e04f1",
"to_name": null,
"type": null,
"value": {
"end": 11116,
"labels": [
"ANALYSIS"
],
"start": 11110,
"text": "\n 11 "
}
},
{
"from_name": null,
"id": "e538f045626f46d885e274a3d3978bea",
"to_name": null,
"type": null,
"value": {
"end": 11286,
"labels": [
"ANALYSIS"
],
"start": 11116,
"text": "The petitioner has placed reliance on the school leaving certificate dated 9.2.2009, issued by Jamhoor Secondary and Higher Secondary School and we have perused the same."
}
},
{
"from_name": null,
"id": "d3d16bf600ec4d848d229be3d87a9f9c",
"to_name": null,
"type": null,
"value": {
"end": 11367,
"labels": [
"ANALYSIS"
],
"start": 11287,
"text": "The said certificate discloses the date of birth of the petitioner as 15.6.1986."
}
},
{
"from_name": null,
"id": "66522f415f1144f88baed3f5b8aee723",
"to_name": null,
"type": null,
"value": {
"end": 11756,
"labels": [
"ANALYSIS"
],
"start": 11368,
"text": "We have also perused the school leaving certificate dated 12.6.1995, issued by Jamhoor Urdu Primary School, Udgir, District Latur, and bona fide certificate dated 4.7.2009 issued by Jamhoor High School, Udgir, produced by the respondent as per our afore said directions at Annexure R-I collectively and the said certificates also disclose the date of birth of the petitioner as 15.6.1986."
}
},
{
"from_name": null,
"id": "58e2924c0e194f33bc41cfd5eaa7924b",
"to_name": null,
"type": null,
"value": {
"end": 11762,
"labels": [
"ANALYSIS"
],
"start": 11756,
"text": "\n 12 "
}
},
{
"from_name": null,
"id": "50d88be2ede44e2bb8f22d780e6fb355",
"to_name": null,
"type": null,
"value": {
"end": 11974,
"labels": [
"ANALYSIS"
],
"start": 11762,
"text": "A note is required to be taken that the said school leaving certificate issued by Jamhoor Urdu Primary School, Udgir, is dated 12.6.1995 i.e. much prior to the date of commission of the offence i.e. on 12.8.2003."
}
},
{
"from_name": null,
"id": "97943a0287694f0ab380bac0b517c1d3",
"to_name": null,
"type": null,
"value": {
"end": 12361,
"labels": [
"ANALYSIS"
],
"start": 11974,
"text": "\n Moreover, the respondent also produced page no.106 of admission register of Jamhoor Urdu Primary School, Udgir, which discloses that the admission of the petitioner is at Sr. No.2606 and the petitioner was admitted in the said school on 19.6.1991 and he left the said school after passing 4th standard on 12.6.1995 and the date of birth of the petitioner recorded therein is 15.6.1986."
}
},
{
"from_name": null,
"id": "e954cae2f89f4d6c9aea08822f08d1a4",
"to_name": null,
"type": null,
"value": {
"end": 12699,
"labels": [
"ANALYSIS"
],
"start": 12362,
"text": "Thus, it is amply clear that the petitioner's date of birth is 15.6.1986 as claimed by the petitioner and supported by the afore said school leaving certificates, bona fide certificate and admission register, which are in consonance with the above referred Rule 12 of the Rules of 2007, and more particularly Rule 12 (3) (a)(ii) thereof."
}
},
{
"from_name": null,
"id": "68a1d30c37b54fa99a51764a2d889c2a",
"to_name": null,
"type": null,
"value": {
"end": 13337,
"labels": [
"ANALYSIS"
],
"start": 12699,
"text": "\n 13 Since the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, more particularly Section 7-A there of and Section 2 (l) i.e. `the juvenile in conflict with law' is beneficial to the convict, we issued directions to the Medical Officer, Government Hospital, Aurangabad on 25.8.2009, to conduct the ossification test, to determine the present age of the petitioner, on the petitioner/convict by way of abundant precaution.\n Accordingly, the Lecturer in Radiology, Medical College, Aurangabad submitted the Radiological (Bone) Assessment report through the learned Additional Public Prosecutor before us on 8.9.2009."
}
},
{
"from_name": null,
"id": "b688e8b1daac4f9c92e23a487a4754db",
"to_name": null,
"type": null,
"value": {
"end": 13460,
"labels": [
"ANALYSIS"
],
"start": 13338,
"text": "On perusal of the said report, it is seen that the present approximate age of the petitioner convict is given as 20 years."
}
},
{
"from_name": null,
"id": "3a9bd5556b0e48e295f89b6013c49498",
"to_name": null,
"type": null,
"value": {
"end": 13861,
"labels": [
"ANALYSIS"
],
"start": 13461,
"text": "Even after giving latitude of 2 years plus/minus and considering the present age of the petitioner on the higher side i.e. 22 years, it is apparently clear that the petitioner's age on the date of commission of the offence i.e. on 12.8.2003 would be 16 years and, therefore, it is amply clear that the petitioner was `the juvenile in conflict with law' on the date of commission of the offence.\n 14 "
}
},
{
"from_name": null,
"id": "069b7625f1b148839bc421db5ae9f728",
"to_name": null,
"type": null,
"value": {
"end": 14440,
"labels": [
"ANALYSIS"
],
"start": 13861,
"text": "As mentioned herein above, even basing upon the school leaving certificate produced by the petitioner and also the school leaving certificate, bona fide certificate and the school admission register produced by the respondent, the date of birth of the petitioner is disclosed therein as 15.6.1986 and considering the date of the commission of the offence i.e. 12.8.2003, it is crystal clear that the age of the petitioner was of 17 years 1 month and 27 days i.e. below 18 years on the said date and he was `juvenile in conflict with law' on the date of commission of the offence."
}
},
{
"from_name": null,
"id": "5ccc50f44b9b45139d0f32d736d35c6a",
"to_name": null,
"type": null,
"value": {
"end": 14803,
"labels": [
"RATIO"
],
"start": 14442,
"text": "15 In view of the facts of the case and material placed before us, we are convinced that the petitioner is, `the juvenile in conflict with law' and was the juvenile in view of the provisions of Section 7-A r/w Section 2 (l) of the Juvenile Justice (Care and Protection of Children) Amendment Act of 2006 on the date of commission of the offence i.e. 12.8.2003."
}
},
{
"from_name": null,
"id": "97eb14d4db734208ae550b2487e42645",
"to_name": null,
"type": null,
"value": {
"end": 15219,
"labels": [
"RATIO"
],
"start": 14804,
"text": "Hence, the petition is required to be allowed and the petitioner is required to be released forthwith in view of the provisions of Section 6 (2) and also in view of Section 15 of the the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, since the petitioner has already undergone the sentence of more than 3 years."
}
},
{
"from_name": null,
"id": "7bf8c771dc33470fa62396f2ff12c70a",
"to_name": null,
"type": null,
"value": {
"end": 15264,
"labels": [
"RPC"
],
"start": 15219,
"text": "\n 16 In the result, the petition is allowed."
}
},
{
"from_name": null,
"id": "0ca7c18bd740410593632d2d285962f7",
"to_name": null,
"type": null,
"value": {
"end": 15391,
"labels": [
"RPC"
],
"start": 15265,
"text": "We hold that the petitioner is `the juvenile in conflict with law' on the date of commission of the offence i.e. on 12.8.2003."
}
},
{
"from_name": null,
"id": "767006c30251477b8d8d3493ca5e3a45",
"to_name": null,
"type": null,
"value": {
"end": 15516,
"labels": [
"RPC"
],
"start": 15392,
"text": "We confirm the conviction imposed upon the petitioner by the Trial Court and subsequently confirmed by this court in appeal."
}
},
{
"from_name": null,
"id": "d8ff7ec4a56c436b90d39a2eb2b0362d",
"to_name": null,
"type": null,
"value": {
"end": 15671,
"labels": [
"RPC"
],
"start": 15517,
"text": "We also quash and set aside the sentence of life imprisonment imposed by the Additional Sessions Judge, Udgir in Sessions Case No.52 of 2003 on 10.6.2004."
}
},
{
"from_name": null,
"id": "9795ea67cc284dc2ae8ababc66d07bba",
"to_name": null,
"type": null,
"value": {
"end": 15789,
"labels": [
"RPC"
],
"start": 15672,
"text": "The petitioner shall be set at liberty forthwith, in case the petitioner's custody is not required in any other case."
}
},
{
"from_name": null,
"id": "42dc12e93e4a4581b8d2cfdb1405f97a",
"to_name": null,
"type": null,
"value": {
"end": 15827,
"labels": [
"RPC"
],
"start": 15790,
"text": "Rule is made absolute in above terms."
}
},
{
"from_name": null,
"id": "8f2ce1d1495949f4937ede988c3fca5c",
"to_name": null,
"type": null,
"value": {
"end": 15899,
"labels": [
"NONE"
],
"start": 15827,
"text": "\n (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) dbm/crwp319.09"
}
}
]
}
] | 4,084 | {
"text": " THE HIGH COURT OF JUDICATURE AT BOMBAY,\n\n AURANGABAD BENCH, AURANGABAD\n\n CRIMINAL WRIT PETITION NO. 319 OF 2009\n\nAbdul Riyaz s/o Abdul Bashid Kazi, ..Petitioner\n\nage 22 years, occ. Nil,\nr/o Central Prison Harsul,\n\nAurangabad\n\n VERSUS\n\nThe State of Maharashtra ..Respondent\n\n .....\nShri D.S.Manorkar, advocate for the petitioner\nShri B.J.Sonwane, A.P.P. for the respondent.\n\n .....\n\n CORAM : NARESH H. PATIL\n AND\n\n SHRIHARI P.DAVARE, JJ.\n\n DATE OF RESERVING : 15.9.2009\n THE JUDGMENT : 24.9.2009\n\n DATE OF PRONOUNCING\n THE JUDGMENT\n\nJ U D G M E N T : (Per Shrihari P.Davare, J.) 1 Perused.\n 2 Rule. Rule made returnable forthwith and by consent of the learned respective counsel for the parties, taken up for final hearing.\n 3 The petitioner, namely Abdul Riyaz s/o Abdul Bashid Kazi, who has been convicted under Section 302 r/w Section 34 of the Indian Penal Code along with his father and 3 elder brothers, was sentenced to suffer R.I.\n for life and fine by the judgment and order rendered by the Additional Sessions Judge, Udgir in Sessions Case No.\n 52 of 2003 on 10.6.2004. The petitioner challenged the said judgment and order in Appeal No. 489 of 2004 before this court and this court confirmed the said judgment and order of the conviction and sentence awarded by the Additional Sessions Judge, Udgir on 2.2.2006. Thereafter the petitioner preferred Special Leave Petition No. 1531 of 2007 before Honourable Supreme Court along with application for delay condonation. The Honourable Supreme Court allowed the said application for condonation of delay, but rejected the Special Leave Petition by its order dated 9.2.2007. Accordingly, the conviction and sentence of life imprisonment inflicted upon the petitioner herein was confirmed upto the Honourable Supreme Court.\n 4 By the present petition, the petitioner has raised the contention that his death of birth is 15.6.1986 and hence, on the date of commission of offence i.e. 12.8.2003 his age was 17 years 1 month and 27 days. To substantiate the date of birth, the petitioner produced his school leaving certificate disclosing his afore said date of birth therein.\n 5 Basing upon the afore said date of birth and also basing upon the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, as amended by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 and more particularly in accordance with Section 7-A thereof, the petitioner claims juvenility and contends that he was juvenile in conflict with law in view of the provisions of Section 7-A r/w Section 2 (l) of the the Juvenile Justice (Care and Protection of Children) Act, 2000 on the date of commission of offence i.e.\n 12.8.2003. Accordingly, the petitioner prays that benefit of the said provisions of Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000, as amended by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 be given to the petitioner and he be released from the jail forthwith.\n 6 The learned counsel for the petitioner placed reliance on the provisions of Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as, `the Act of 2000') as amended in 2006 with effect from 22.8.2006, whereby provisions of Section 7-A were introduced by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 (33 of 2006). Section 7-A of the Act of 2000 reads as under :- \"7-A. 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 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 recognized 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 sub-section (1), it shall forward the juvenile to the Board for passing appropriate order, and the sentence, if any, passed by a Court shall be deemed to have no effect. \"\n 7 Reliance was also placed on the provisions of Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as, `the Rules of 2007' for short). Rule 12 of the Rules of 2007 reads as under :- \"12. Procedure to be followed in determination of age :-- (1) In every case concerning a child or a juvenile in conflict with law, the Court or the Board, as the case may be, the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.\n (2) The Court or the Board or, as the case may be, the Committee shall decide the juvenility or otherwise of the juvenile or the child or, as the case may be, the juvenile in conflict with law, prima facie on the basis of physical appearances or documents, if available, and send him to the observation home or in jail.\n (3) 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 (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or, as the case may be, the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.\n (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7-A, section 64 of the Act and these rules, no further inquiry shall be conducted by the Court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.\n (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law. \"\n 8 We find it necessary here itself to refer to Section 6 of the Act of 2000, which refers to powers of Juvenile Justice Board and Section 6 reads as under :- \" 6. Powers of Juvenile Justice Board :-- (1) Where a Board has been constituted for any district, such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law.\n (2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise. \"\n 9 The above referred Section 7-A of the Act of 2000 contemplates that wherever claim of juvenility is raised before any court, the court shall make an inquiry so as to determine the age of such person and hence, by our order dated 5.8.2009, directions were issued by us to the concerned officers to take steps to produce original record concerning the date of birth of the petitioner, like original birth certificate, original school leaving certificate from Jamhoor Urdu Primary School, Udgir, District Latur. It was also directed that the police inspector shall also take steps to secure any original register maintained by the School showing date of birth of the petitioner. It was further directed that steps be taken to secure original record of the petitioner's Higher Secondary studies in Jamhoor Secondary & Higher Secondary School (Jr. College), Udgir, District Latur for securing original record mainly reflecting date of birth of the petitioner.\n 10 Accordingly, Dhondiram Shetiba Gaikwad, P.S.I.\n Udgir Rural Police Station, Udgir, District Latur filed affidavit in reply and stated that at the time of commission of the offence i.e. 12.8.2003, the petitioner was juvenile and his date of birth is 15.6.1986. It is also submitted by the respondent that the petitioner was below age of 18 years on the date of commission of the offence. He further submitted that as per the directions of this Court, he received the school leaving certificate of the petitioner from Jamhoor Primary School, Udgir, District Latur, which reveals that the date of birth of the petitioner is 15.6.1986. He also stated that he collected bona fide certificate from the said school, wherein the petitioner's date of birth is shown as 15.6.1986. The respondent has annexed both the said certificates along with the reply at Annexure R-I collectively.\n 11 The petitioner has placed reliance on the school leaving certificate dated 9.2.2009, issued by Jamhoor Secondary and Higher Secondary School and we have perused the same. The said certificate discloses the date of birth of the petitioner as 15.6.1986. We have also perused the school leaving certificate dated 12.6.1995, issued by Jamhoor Urdu Primary School, Udgir, District Latur, and bona fide certificate dated 4.7.2009 issued by Jamhoor High School, Udgir, produced by the respondent as per our afore said directions at Annexure R-I collectively and the said certificates also disclose the date of birth of the petitioner as 15.6.1986.\n 12 A note is required to be taken that the said school leaving certificate issued by Jamhoor Urdu Primary School, Udgir, is dated 12.6.1995 i.e. much prior to the date of commission of the offence i.e. on 12.8.2003.\n Moreover, the respondent also produced page no.106 of admission register of Jamhoor Urdu Primary School, Udgir, which discloses that the admission of the petitioner is at Sr. No.2606 and the petitioner was admitted in the said school on 19.6.1991 and he left the said school after passing 4th standard on 12.6.1995 and the date of birth of the petitioner recorded therein is 15.6.1986. Thus, it is amply clear that the petitioner's date of birth is 15.6.1986 as claimed by the petitioner and supported by the afore said school leaving certificates, bona fide certificate and admission register, which are in consonance with the above referred Rule 12 of the Rules of 2007, and more particularly Rule 12 (3) (a)(ii) thereof.\n 13 Since the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, more particularly Section 7-A there of and Section 2 (l) i.e. `the juvenile in conflict with law' is beneficial to the convict, we issued directions to the Medical Officer, Government Hospital, Aurangabad on 25.8.2009, to conduct the ossification test, to determine the present age of the petitioner, on the petitioner/convict by way of abundant precaution.\n Accordingly, the Lecturer in Radiology, Medical College, Aurangabad submitted the Radiological (Bone) Assessment report through the learned Additional Public Prosecutor before us on 8.9.2009. On perusal of the said report, it is seen that the present approximate age of the petitioner convict is given as 20 years. Even after giving latitude of 2 years plus/minus and considering the present age of the petitioner on the higher side i.e. 22 years, it is apparently clear that the petitioner's age on the date of commission of the offence i.e. on 12.8.2003 would be 16 years and, therefore, it is amply clear that the petitioner was `the juvenile in conflict with law' on the date of commission of the offence.\n 14 As mentioned herein above, even basing upon the school leaving certificate produced by the petitioner and also the school leaving certificate, bona fide certificate and the school admission register produced by the respondent, the date of birth of the petitioner is disclosed therein as 15.6.1986 and considering the date of the commission of the offence i.e. 12.8.2003, it is crystal clear that the age of the petitioner was of 17 years 1 month and 27 days i.e. below 18 years on the said date and he was `juvenile in conflict with law' on the date of commission of the offence.\n 15 In view of the facts of the case and material placed before us, we are convinced that the petitioner is, `the juvenile in conflict with law' and was the juvenile in view of the provisions of Section 7-A r/w Section 2 (l) of the Juvenile Justice (Care and Protection of Children) Amendment Act of 2006 on the date of commission of the offence i.e. 12.8.2003. Hence, the petition is required to be allowed and the petitioner is required to be released forthwith in view of the provisions of Section 6 (2) and also in view of Section 15 of the the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended by the Juvenile Justice (Care and Protection of Children) Amendment Act, 2006, since the petitioner has already undergone the sentence of more than 3 years.\n 16 In the result, the petition is allowed. We hold that the petitioner is `the juvenile in conflict with law' on the date of commission of the offence i.e. on 12.8.2003. We confirm the conviction imposed upon the petitioner by the Trial Court and subsequently confirmed by this court in appeal. We also quash and set aside the sentence of life imprisonment imposed by the Additional Sessions Judge, Udgir in Sessions Case No.52 of 2003 on 10.6.2004. The petitioner shall be set at liberty forthwith, in case the petitioner's custody is not required in any other case. Rule is made absolute in above terms.\n (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) dbm/crwp319.09 "
} |
{
"group": "Criminal"
} | [
{
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{
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"id": "cd8dd67e31b04cf4a63bc1cdf62e1689",
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"end": 124,
"labels": [
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"start": 0,
"text": " IN THE HIGH COURT OF KARNATAKA,\n DHARWAD BENCH\n\n DATED THIS THE 4TH DAY OF JUNE, 2014"
}
},
{
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"id": "76bf3809b8ec45e5a585695fc022ee5b",
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"end": 650,
"labels": [
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"start": 157,
"text": "BEFORE:\n\n THE HON'BLE MR. JUSTICE K.N. PHANEENDRA\nCRL. A. NO. 2518/2012 C/W CRL.A. NO.2517/2012\n\nBETWEEN:\n\nIN CRL.A. NO. 2518/2012:\n\nSambulingappa\n\nS/o Ajjappa Talawar,\n\nAge: 36 years, Occ: Agricultural Coolie,\n\nR/o Siddapur, Tq. Naragund,\n\nDist. Gadag. ... Appellant\n\n (By Sri. D.B. Karigar, Adv.)\n\nAND:\n\n1. Ninganagouda Iranagouda\n Hiregoudar, Age: 33 years,\n Occ: Agriculture,\n R/o Siddapur, Tq. Naragund,\n Dist. Gadag."
}
},
{
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"id": "779e8c05feb14f71951e199d3de2473f",
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"value": {
"end": 662,
"labels": [
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"start": 650,
"text": "\n\n2. Manjula"
}
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{
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"end": 679,
"labels": [
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"start": 663,
"text": "W/o Ninganagouda"
}
},
{
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"id": "23b62437a59047e7b22304c71bc64629",
"to_name": null,
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"value": {
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"labels": [
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"start": 679,
"text": "\n Hiregouder, Age: 32 years"
}
},
{
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"id": "21e8b33b67d449598a67da63b5ee712a",
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"value": {
"end": 967,
"labels": [
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"start": 713,
"text": ",\n Occ: Household work,\n R/o Siddapur, Tq. Naragund,\n Dist. Gadag.\n\n3. Sanganagouda\n S/o Siddanagouda Hiregoudar,\n Age: 35 years, Occ: Agriculture,\n R/o Siddapur, Tq. Naragund,\n Dist. Gadag.\n\n4. Premagouda"
}
},
{
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"type": null,
"value": {
"end": 984,
"labels": [
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"start": 968,
"text": "S/o Veeranagouda"
}
},
{
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"to_name": null,
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"value": {
"end": 1018,
"labels": [
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],
"start": 984,
"text": "\n Hiregouder, Age: 33 years"
}
},
{
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"id": "4e3071061f7748f0b92f5d965b1d907a",
"to_name": null,
"type": null,
"value": {
"end": 1260,
"labels": [
"PREAMBLE"
],
"start": 1018,
"text": ",\n Occ: Agriculture, R/o Siddapur,\n Tq. Naragund, Dist. Gadag.\n\n5. Anandagouda\n S/o Siddanagouda Hiregouder,\n Age: 32 years, Occ: Agriculture,\n R/o Siddapur, Tq. Naragund,\n Dist. Gadag.\n\n6. Girijadevi"
}
},
{
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"value": {
"end": 1305,
"labels": [
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],
"start": 1261,
"text": "W/o Iranagouda Patil,\n Age: 52 years,"
}
},
{
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"id": "87f7f4942b7045b1846054731d34bb2a",
"to_name": null,
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"labels": [
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"start": 1306,
"text": "Occ: Household work,\n R/o Siddapur, Tq. Naragund,\n Dist. Gadag."
}
},
{
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"id": "bf8800ef6d0f45f299b96f14bad782c7",
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"value": {
"end": 1411,
"labels": [
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],
"start": 1385,
"text": "7. The State of Karnataka,"
}
},
{
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"id": "576dff0343ef481f8a2ace3b3a0381ad",
"to_name": null,
"type": null,
"value": {
"end": 1584,
"labels": [
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],
"start": 1427,
"text": "... Respondents\n Rep. by SPP.\n\n (By Sri. S.B. Naik, Adv. for\n Sri. K.L. Patil, Adv. for R-1 to R-6,\nSri. Vijayakumar Majage, HCGP for R-7)"
}
},
{
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"id": "78bdb016057d4904bb722040ea50cd17",
"to_name": null,
"type": null,
"value": {
"end": 2136,
"labels": [
"PREAMBLE"
],
"start": 1594,
"text": "THIS CRIMINAL APPEAL IS FILED UNDER\nSECTION 372 OF CODE OF CRIMINAL PROCEDURE,\nPRAYING TO ALLOW THIS APPEAL; SET ASIDE THE\nIMPUGNED JUDGMENT AND ORDER OF ACQUITTAL OF THE ACCUSED PERSONS PASSED BY THE DISTRICT AND SESSIONS JUDGE, GADAG IN ITS SPL.\nSC/ST CC NO. 17/2004 DATED 28.10.2010 AND THEREBY CONVICT THE ACCUSED.\n BETWEEN: IN CRL.A. NO. 2517/2012: Sambulingappa S/o Ajjappa Talawar, Age: 36 years, Occ: Agricultural Coolie, R/o Siddapur, Tq. Naragund, Dist. Gadag. ... Appellant (By Sri. D.B. Karigar, Adv.)"
}
},
{
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"id": "a6bc109d87dc4e4ba89d9003c53a83d2",
"to_name": null,
"type": null,
"value": {
"end": 2254,
"labels": [
"PREAMBLE"
],
"start": 2137,
"text": "AND: 1. Ninganagouda Iranagouda Hiregoudar, Age: 33 years, Occ: Agriculture, R/o Siddapur, Tq. Naragund, Dist. Gadag."
}
},
{
"from_name": null,
"id": "4a1a6bd78c7946e3b1cbaa60151c0d67",
"to_name": null,
"type": null,
"value": {
"end": 2372,
"labels": [
"PREAMBLE"
],
"start": 2254,
"text": "\n 2. Manjula W/o Ninganagouda Hiregouder, Age: 32 years, Occ: Household work, R/o Siddapur, Tq. Naragund, Dist. Gadag."
}
},
{
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"id": "59cf08994e354ccca0e75d05e1c774ef",
"to_name": null,
"type": null,
"value": {
"end": 2492,
"labels": [
"PREAMBLE"
],
"start": 2372,
"text": "\n 3. Sanganagouda S/o Siddanagouda Hiregoudar, Age: 35 years, Occ: Agriculture, R/o Siddapur, Tq. Naragund, Dist. Gadag."
}
},
{
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"id": "79dd5f356f5f4317bbe9f17acbfa5032",
"to_name": null,
"type": null,
"value": {
"end": 2610,
"labels": [
"PREAMBLE"
],
"start": 2494,
"text": "4. Premagouda S/o Veeranagouda Hiregouder, Age: 33 years, Occ: Agriculture, R/o Siddapur, Tq. Naragund, Dist. Gadag."
}
},
{
"from_name": null,
"id": "6be0f19e08f34f4b81e45e58142b014e",
"to_name": null,
"type": null,
"value": {
"end": 2656,
"labels": [
"PREAMBLE"
],
"start": 2612,
"text": "5. The State of Karnataka, ..."
}
},
{
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"id": "d2e32bd55948412abc0de5b1c8eeb945",
"to_name": null,
"type": null,
"value": {
"end": 2681,
"labels": [
"PREAMBLE"
],
"start": 2657,
"text": "Respondents Rep. by SPP."
}
},
{
"from_name": null,
"id": "d334bdbe2185470784c684c9d83414f3",
"to_name": null,
"type": null,
"value": {
"end": 2788,
"labels": [
"PREAMBLE"
],
"start": 2683,
"text": "(By Sri. S.B. Naik, Adv. for Sri. K.L. Patil, Adv. for R-1 to R-4, Sri. Vijayakumar Majage, HCGP for R-7)"
}
},
{
"from_name": null,
"id": "56c0fa6d07104f3cae6aa127fcdb1d91",
"to_name": null,
"type": null,
"value": {
"end": 3106,
"labels": [
"PREAMBLE"
],
"start": 2789,
"text": "THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF CODE OF CRIMINAL PROCEDURE, PRAYING TO ALLOW THIS APPEAL; SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF ACQUITTAL OF THE ACCUSED PERSONS PASSED BY THE DISTRICT AND SESSIONS JUDGE, GADAG IN ITS SPL.\nSC/ST CC NO. 6/2003 DATED 28.10.2010 AND THEREBY CONVICT THE ACCUSED."
}
},
{
"from_name": null,
"id": "e04f749f9db34d7287e3cac0322c5801",
"to_name": null,
"type": null,
"value": {
"end": 3217,
"labels": [
"PREAMBLE"
],
"start": 3108,
"text": "THESE CRIMINAL APPEALS COMING ON FOR DICTATING JUDGMENT, THIS DAY THE COURT DELIVERED THE FOLLOWING: JUDGMENT"
}
},
{
"from_name": null,
"id": "9f315b64af8b4145a0dc2f60ee59cad4",
"to_name": null,
"type": null,
"value": {
"end": 3353,
"labels": [
"NONE"
],
"start": 3218,
"text": "The above said two appeals are clubbed in order to avoid repetition of facts involved in these cases and the common judgment is passed."
}
},
{
"from_name": null,
"id": "24bff6c0c186472b8dd032bbc054ed8b",
"to_name": null,
"type": null,
"value": {
"end": 3631,
"labels": [
"FAC"
],
"start": 3355,
"text": "2. The appellant who is the complainant in Spl. Case No. 17/2003 and PW-2 in Spl. Case No. 6/2003 on the file of the District and Sessions Judge, Gadag challenged the judgments passed by the said Court in the above said two cases vide Judgments dated 28th day of October 2010."
}
},
{
"from_name": null,
"id": "75c70197a45e4efc90e6979d3968a401",
"to_name": null,
"type": null,
"value": {
"end": 3847,
"labels": [
"FAC"
],
"start": 3633,
"text": "3. The brief factual matrix of the case are that, on 10.02.2003 according to the appellant in the morning hours at about 5.00 a.m. the appellant Shambulingappa was proceeding to his land to harvest the wheat crop."
}
},
{
"from_name": null,
"id": "797d37cc0a6542b7b887669b30991c5c",
"to_name": null,
"type": null,
"value": {
"end": 3896,
"labels": [
"FAC"
],
"start": 3848,
"text": "He was alone going towards his land on that day."
}
},
{
"from_name": null,
"id": "c72436731a7142169e4a57b5c7b89758",
"to_name": null,
"type": null,
"value": {
"end": 4011,
"labels": [
"FAC"
],
"start": 3897,
"text": "While he was passing through the house of the accused No.1 he observed a dog chased him and attempted to bite him."
}
},
{
"from_name": null,
"id": "9199f3e580644f0b9f2c42ab9a149bad",
"to_name": null,
"type": null,
"value": {
"end": 4308,
"labels": [
"FAC"
],
"start": 4012,
"text": "When he was about to beat the said dog with a stick the respondent Nos.1 to 4 who are arrayed as accused Nos.1 to 4 before the Trial Court came there and tied the appellant to a telephone pole with the help of rope and abused him with filthy language and assaulted him with hands, stick and rope."
}
},
{
"from_name": null,
"id": "bff22589dac342e3b655fed9a1b50a47",
"to_name": null,
"type": null,
"value": {
"end": 4532,
"labels": [
"FAC"
],
"start": 4308,
"text": "\nIt is specifically alleged that Ninganagouda Iranagouda Hiregouder Accused No.1 has assaulted the appellant with stick and he came with a heated iron rod and swiped iron rod on different parts of the body of the appellant."
}
},
{
"from_name": null,
"id": "a9cffe224d114b3bba7896a628106034",
"to_name": null,
"type": null,
"value": {
"end": 4706,
"labels": [
"FAC"
],
"start": 4533,
"text": "Due to which he sustained burn injuries and he lost consciousness and thereafter his father came there admitted complainant to KIMS Hospital and taken treatment there.\n 4. "
}
},
{
"from_name": null,
"id": "347f18ea99524ed8abdd670751b6747e",
"to_name": null,
"type": null,
"value": {
"end": 4930,
"labels": [
"FAC"
],
"start": 4706,
"text": "It is the further case of the complainant that though he did not file any report before the Police but the Police themselves came to the Hospital and taken his left hand thumb impression thereafter concocted the FIR (Ex P3)."
}
},
{
"from_name": null,
"id": "b6277c28474d43e8bf6d8aa1ca6be8c4",
"to_name": null,
"type": null,
"value": {
"end": 5189,
"labels": [
"FAC"
],
"start": 4931,
"text": "It is contended that thereafter some days, later he came to know that the contents of the FIR registered by the Police was not as stated by him, therefore, he lodged a private complaint before the J.M.F.C., Naragund Court narrating the above said real facts."
}
},
{
"from_name": null,
"id": "ec2f7c4ced4d42a48bf0063a77e36a06",
"to_name": null,
"type": null,
"value": {
"end": 5421,
"labels": [
"FAC"
],
"start": 5190,
"text": "The learned Magistrate has registered a case for the offences punishable under Sections 324, 325, 326, 307, 504, 506(2) r/w 149 of I.P.C. and Section 3(i) (viii) of SC/ST (Prevention of Atrocities) Act, against the accused persons."
}
},
{
"from_name": null,
"id": "6055032376364159a72a6f18b8cf3b82",
"to_name": null,
"type": null,
"value": {
"end": 5644,
"labels": [
"FAC"
],
"start": 5422,
"text": "Thereafter, the Magistrate has taken the cognizance and recorded the statements of some of the witnesses on behalf of the complainant, i.e. to say three witnesses were examined by the complainant in that private complaint."
}
},
{
"from_name": null,
"id": "7197ed0c433340b7b035861814f26f04",
"to_name": null,
"type": null,
"value": {
"end": 5910,
"labels": [
"FAC"
],
"start": 5645,
"text": "As the learned Magistrate came to know that a Police case is also registered by the Police in Crime No. 19/2003 for the offences under Sections 323, 324, 355, 342, 504 r/w Section 34 of I.P.C. and also Section 3(i) (x) of SC/ST (Prevention of Atrocities) Act, 1987."
}
},
{
"from_name": null,
"id": "029f8c52ae744b27840437e257ef8954",
"to_name": null,
"type": null,
"value": {
"end": 5983,
"labels": [
"FAC"
],
"start": 5911,
"text": "The learned Magistrate in fact has stayed the proceedings for some time."
}
},
{
"from_name": null,
"id": "801456471149491ca57770df407416cd",
"to_name": null,
"type": null,
"value": {
"end": 6162,
"labels": [
"FAC"
],
"start": 5983,
"text": "\n 5. It is seen from the records that the Police after due investigation submitted a charge sheet before the Special Court and a case is registered in Special SC/ST CC No. 6/2003."
}
},
{
"from_name": null,
"id": "3022adb82785438d994cd778a7c9a7e7",
"to_name": null,
"type": null,
"value": {
"end": 6326,
"labels": [
"FAC"
],
"start": 6163,
"text": "It appears, after the said case is being registered in the special case, the learned Magistrate has also committed the said private complaint to the Special Court."
}
},
{
"from_name": null,
"id": "4ab684001ef7497286f83af6bd8ab2f3",
"to_name": null,
"type": null,
"value": {
"end": 6429,
"labels": [
"FAC"
],
"start": 6327,
"text": "In fact, the Special Court has also registered the said complaint case in Special SC ST CC No.17/2004."
}
},
{
"from_name": null,
"id": "9230a457e02f49f688c376b342e5ebde",
"to_name": null,
"type": null,
"value": {
"end": 6686,
"labels": [
"FAC"
],
"start": 6430,
"text": "In fact, the learned Sessions Judge has proceeded with the Police report and framed the charges against the accused persons for the offences under Sections 342, 324, 355, 504, 506 of I.P.C. and Section 3(i) (ii) (x) of SC/ST (Prevention of Atrocities) Act."
}
},
{
"from_name": null,
"id": "437da851b39249c8a9d97ccd92f2d143",
"to_name": null,
"type": null,
"value": {
"end": 6893,
"labels": [
"FAC"
],
"start": 6687,
"text": "The prosecution in order to prove the guilt against the accused in Special Case No. 6/2003 examined 13 witnesses PWs 1 to 13 and got marked Ex.P1 to P12 and also material objects 1 to 5 and closed its case."
}
},
{
"from_name": null,
"id": "82252e77a0fc48968b742b8e68940ed1",
"to_name": null,
"type": null,
"value": {
"end": 7098,
"labels": [
"FAC"
],
"start": 6893,
"text": "\n 6. The learned Sessions Judge recorded the statement of the accused persons under Section 313 of Cr.P.C. and after hearing the arguments proceeded to pass the judgment in both the cases on the same day."
}
},
{
"from_name": null,
"id": "f41421e07c184ac78209480252bd3292",
"to_name": null,
"type": null,
"value": {
"end": 7414,
"labels": [
"FAC"
],
"start": 7100,
"text": "The learned Sessions Judge has taken the view that when the Police have registered the case, investigated the matter and submitted the charge sheet on the same factual aspects and a private complaint is also filed on the same factual aspects but with different motives for commission of the offence by the accused."
}
},
{
"from_name": null,
"id": "9b88733fbdd9409d9fcf01f536264391",
"to_name": null,
"type": null,
"value": {
"end": 7673,
"labels": [
"RLC"
],
"start": 7415,
"text": "The learned Sessions Judge was of the view that proceeding with the Police report to try the accused is proper, therefore in fact, he dismissed the Special SC ST Case No.17/2004 as not maintainable and accused were acquitted so far as that case is concerned."
}
},
{
"from_name": null,
"id": "4c6bc2f904124fb7a98c85e1066c39e9",
"to_name": null,
"type": null,
"value": {
"end": 7939,
"labels": [
"RLC"
],
"start": 7674,
"text": "On the same day, the learned Sessions Judge on merits discussing the evidence on record came to the conclusion that the prosecution has not proved the case against the accused persons beyond all reasonable doubt, and acquitted the accused in Spl.SC ST CC No.6/2003."
}
},
{
"from_name": null,
"id": "4e622a0432bf4c51b9333bfdfe8ffe26",
"to_name": null,
"type": null,
"value": {
"end": 8000,
"labels": [
"FAC"
],
"start": 7940,
"text": "The above said two judgments are assailed before this Court."
}
},
{
"from_name": null,
"id": "59b3293d8e5647a084e15e5c1337e686",
"to_name": null,
"type": null,
"value": {
"end": 8402,
"labels": [
"ARG_PETITIONER"
],
"start": 8000,
"text": "\n 7. The learned Counsel for the appellant strenuously contended that though the incident taken place with regard to the assault by the accused persons on the appellant and sustaining of injury by the appellant are same but so far as the facts relating to motive is concerned, the appellant has denied in his statement in the first information report alleged to has been given by him before the Police."
}
},
{
"from_name": null,
"id": "874194872d0b4c8f8c897952dddb674f",
"to_name": null,
"type": null,
"value": {
"end": 8551,
"labels": [
"ARG_PETITIONER"
],
"start": 8403,
"text": "Therefore, he has led the evidence before the Trial Court speaking to the truth as to what exactly happened on that particular day according to him."
}
},
{
"from_name": null,
"id": "ebb27b2baebf406d909a8529b1219d6d",
"to_name": null,
"type": null,
"value": {
"end": 8753,
"labels": [
"ARG_PETITIONER"
],
"start": 8552,
"text": "Though he has produced sufficient material before the Trial Court the Trial Court has not properly appreciated the evidence on record and wrongly recorded an acquittal judgment against the prosecution."
}
},
{
"from_name": null,
"id": "b2b799bd6cb540c3a9a0402aa0458c18",
"to_name": null,
"type": null,
"value": {
"end": 9181,
"labels": [
"ARG_PETITIONER"
],
"start": 8754,
"text": "He further contends that the evidence of PW-2 coupled with the evidence of the Doctor, if it is appreciated in proper perspective along with the cross- examination of the complainant, which definitely show that there was some ill-will and misunderstanding between the accused and as well as the complainant with reference to feeding of water to their lands, with that vengeance the accused persons have committed such offences."
}
},
{
"from_name": null,
"id": "eb43f796b9bf4f2fb2a873ec2dd57c68",
"to_name": null,
"type": null,
"value": {
"end": 9296,
"labels": [
"ARG_PETITIONER"
],
"start": 9182,
"text": "Though the case has been amply proved before the Court, the Trial Court has wrongly acquitted the accused persons."
}
},
{
"from_name": null,
"id": "3c80b87ccfef4942b32b83851c17553b",
"to_name": null,
"type": null,
"value": {
"end": 9437,
"labels": [
"ARG_PETITIONER"
],
"start": 9297,
"text": "Therefore, this Court has to re- appreciate the evidence on record and to convict the accused persons for the offences alleged against them."
}
},
{
"from_name": null,
"id": "bfb7e7f27289414ba8274a3d18fc2189",
"to_name": null,
"type": null,
"value": {
"end": 9664,
"labels": [
"ARG_RESPONDENT"
],
"start": 9437,
"text": "\n 8. Per contra, the learned Counsel for the respondents (accused before the Trial Court) contended that the materials placed before the Trial Court by the prosecution shows that there are two divergent versions stated by PW-2."
}
},
{
"from_name": null,
"id": "43f952cb99c14f0693581ed2b16ec396",
"to_name": null,
"type": null,
"value": {
"end": 9800,
"labels": [
"ARG_RESPONDENT"
],
"start": 9665,
"text": "He has given the report before the Police as per Ex.P3 and filed a private complaint before the learned Magistrate in C.C. No.493/2003."
}
},
{
"from_name": null,
"id": "e14021f94e514b519f1c08758fd69fff",
"to_name": null,
"type": null,
"value": {
"end": 9951,
"labels": [
"ARG_RESPONDENT"
],
"start": 9801,
"text": "The motive factor and the factual aspects actually happened on that day has been totally deviated, and two different versions have been stated by him."
}
},
{
"from_name": null,
"id": "02e46891bd1441cbb2dcdf1b27cfb47c",
"to_name": null,
"type": null,
"value": {
"end": 10080,
"labels": [
"ARG_RESPONDENT"
],
"start": 9952,
"text": "Therefore, the Trial Court has properly appreciated the evidence holding that PW-3 is not a trust worthy witness for acceptance."
}
},
{
"from_name": null,
"id": "85c241d243384e7fbf66132371232344",
"to_name": null,
"type": null,
"value": {
"end": 10195,
"labels": [
"ARG_RESPONDENT"
],
"start": 10080,
"text": "\nHe further contended that except the evidence of PW-2 there is absolutely no material to corroborate his evidence."
}
},
{
"from_name": null,
"id": "3ccfe3eb5f7846849bf92c1143092cf8",
"to_name": null,
"type": null,
"value": {
"end": 10416,
"labels": [
"ARG_RESPONDENT"
],
"start": 10196,
"text": "Further, added to that the PW-2 himself has admitted that there was misunderstanding and ill-will between himself and the accused persons, that may be one of the reasons to foist a false case against the accused persons."
}
},
{
"from_name": null,
"id": "01fa904d88f74c7494c2461483c6e678",
"to_name": null,
"type": null,
"value": {
"end": 10656,
"labels": [
"ARG_RESPONDENT"
],
"start": 10417,
"text": "Therefore, considering all the evidence, circumstances prevailing in the case the Trial Court after properly appreciating the materials on record rightly acquitted the accused persons and there is no room to interfere with such a judgment."
}
},
{
"from_name": null,
"id": "6e7bd83cdc794f789e2f34e0743a19d3",
"to_name": null,
"type": null,
"value": {
"end": 10709,
"labels": [
"ARG_RESPONDENT"
],
"start": 10657,
"text": "Hence, he pleaded for dismissal of both the appeals."
}
},
{
"from_name": null,
"id": "d7d7bf68737742f49065be4105f74e76",
"to_name": null,
"type": null,
"value": {
"end": 11021,
"labels": [
"ISSUE"
],
"start": 10711,
"text": "9. On the basis of the above rival contentions, the point that would arise for consideration of this Court is that : \"Whether the appellant has made out any reasonable or substantial ground to interfere with the judgment of acquittal passed by the Trial Court and consequently to convict the accused persons\" ?"
}
},
{
"from_name": null,
"id": "52e3fd58a13342ff8b9259994a3d9924",
"to_name": null,
"type": null,
"value": {
"end": 11229,
"labels": [
"ANALYSIS"
],
"start": 11023,
"text": "10. Before adverting to the factual matrix of this case, it is just and necessary for this Court to find out whether the private complaint filed by the complainant as dismissed by the Trial Court is proper."
}
},
{
"from_name": null,
"id": "c08855f60a2b414e9070a28250228a5d",
"to_name": null,
"type": null,
"value": {
"end": 11353,
"labels": [
"ANALYSIS"
],
"start": 11229,
"text": "\n 11. As I have narrated that the appellant has filed a private complaint in C.C. No.493/2003 before the J.M.F.C., Naragund."
}
},
{
"from_name": null,
"id": "0771d39556194efabd7802362c58d6c2",
"to_name": null,
"type": null,
"value": {
"end": 11599,
"labels": [
"ANALYSIS"
],
"start": 11354,
"text": "The allegations made in the complaint with regard to the assault by the accused persons, sustaining of the injuries by him are all same so far as the first information alleged to have been lodged by the complainant before the Police under Ex.P3."
}
},
{
"from_name": null,
"id": "16a9a710adc545aeb33dbba40e0c0ac3",
"to_name": null,
"type": null,
"value": {
"end": 11995,
"labels": [
"ANALYSIS"
],
"start": 11600,
"text": "The difference is only that in Ex.P3 it is categorically narrated that on that particular date this complainant had been to the house of the accused No.1 in order to have illicit sexual relationship with the wife of accused No.1 (i.e. accused No.2), when he went there, standing near the house of accused No.1, tapped the door of the house of accused No.1 the accused No.2 did not open the door."
}
},
{
"from_name": null,
"id": "876a71fc119e4f08b6e74c897eca8a1d",
"to_name": null,
"type": null,
"value": {
"end": 12287,
"labels": [
"ANALYSIS"
],
"start": 11996,
"text": "By that time another accused No.1 came there and came to know about the intention of the complainant and therefore, in order to teach a lesson to the complainant they assaulted the complainant and with the help of a heated iron strip burnt the different parts of the body of the complainant."
}
},
{
"from_name": null,
"id": "b2c998017ce34a54ba05e66a5de270a0",
"to_name": null,
"type": null,
"value": {
"end": 12382,
"labels": [
"ANALYSIS"
],
"start": 12288,
"text": "So far as the complaint averment is concerned, it is altogether on a different factual matrix."
}
},
{
"from_name": null,
"id": "900f31e49e544c0c8d4059c668288995",
"to_name": null,
"type": null,
"value": {
"end": 12580,
"labels": [
"ANALYSIS"
],
"start": 12383,
"text": "The complainant has stated that, on that particular day he was proceeding in front of the house of accused No.1 in order to go to his field, at that time a dog chased him and attempted to bite him."
}
},
{
"from_name": null,
"id": "13842e59bd03497784b019056ffdacae",
"to_name": null,
"type": null,
"value": {
"end": 12793,
"labels": [
"ANALYSIS"
],
"start": 12581,
"text": "Therefore, when he was about to beat the dog with a stick then accused persons abruptly came there and tied the complainant to a telephone pole and assaulted him and in fact burnt his body with heated iron strip."
}
},
{
"from_name": null,
"id": "b5b9a66e0a79430c9c21c2aa25151696",
"to_name": null,
"type": null,
"value": {
"end": 13132,
"labels": [
"ANALYSIS"
],
"start": 12793,
"text": "\n 12. Looking to the above said factual aspects, the difference between the first information report filed before the Court and the complaint averments is only with reference to the prelude to the commission of the offence committed by the accused persons and not with regard to the actual commission of the offence by the accused persons."
}
},
{
"from_name": null,
"id": "65c9d1508b744383a6ffda88636dfa2b",
"to_name": null,
"type": null,
"value": {
"end": 13528,
"labels": [
"ANALYSIS"
],
"start": 13133,
"text": "Therefore, in my opinion, the Sessions Judge has rightly come to the conclusion that when the Police report is already there before the Court and Court has already taken cognizance on the charge sheet filed by the Police and when the Court is inquiring into the truth and falsity of the entire dispute between the parties before him, there was no necessity to proceed with the private complaint."
}
},
{
"from_name": null,
"id": "b164ed5302004b18b1d95d8e5dce7ee5",
"to_name": null,
"type": null,
"value": {
"end": 13608,
"labels": [
"ANALYSIS"
],
"start": 13529,
"text": "Therefore, it rightly dismissed the said private complaint as not maintainable."
}
},
{
"from_name": null,
"id": "04920e5da1004375979d05a236d4c781",
"to_name": null,
"type": null,
"value": {
"end": 13908,
"labels": [
"ANALYSIS"
],
"start": 13608,
"text": "\n 13. The learned Sessions Judge also dismissed the said Special Case No.17/2004 on the ground that after amendment to Section 14 to the SC ST (POA) Act, the Special Court is the competent Court having jurisdiction to take cognizance and the cognizance taken by the learned Magistrate was bad in law."
}
},
{
"from_name": null,
"id": "517c0ba92c21433eb5b8a013137404bc",
"to_name": null,
"type": null,
"value": {
"end": 14158,
"labels": [
"ANALYSIS"
],
"start": 13909,
"text": "But the said observation by the learned Sessions Judge is not proper because of the simple reason the said complaint was filed by the complainant in C.C. No.493/2003 was in the month of February 2003, but the amendment came into force on 30.09.2003."
}
},
{
"from_name": null,
"id": "73f980aa92484476bdb995dd5d447ada",
"to_name": null,
"type": null,
"value": {
"end": 14310,
"labels": [
"ANALYSIS"
],
"start": 14159,
"text": "Therefore, on the date of filing of the complaint, the Magistrate had got jurisdiction to take cognizance and commit the case to the Court of Sessions."
}
},
{
"from_name": null,
"id": "519f4aabf25c43649209f0177a65bc64",
"to_name": null,
"type": null,
"value": {
"end": 14592,
"labels": [
"PRE_RELIED"
],
"start": 14310,
"text": "\n 14. The legal implications with regard to a private complaint being filed and the Police Report is submitted on the same facts, what should be done by the Courts is also very well enunciated in a decision reported in Parmanand Sisodia Vs. Madhukar reported in 2002 Crl. L.J. 3640."
}
},
{
"from_name": null,
"id": "7532b2d4151242d6993f583e3528a489",
"to_name": null,
"type": null,
"value": {
"end": 14804,
"labels": [
"PRE_RELIED"
],
"start": 14593,
"text": "The Madhya Pradesh High Court has held that : \"When a private complaint is filed, cognizance is taken, by that time FIR was also filed with Police, the Magistrate called the police report and charge sheet filed."
}
},
{
"from_name": null,
"id": "e7461071921e4efabf9e8089b88993f5",
"to_name": null,
"type": null,
"value": {
"end": 15065,
"labels": [
"PRE_RELIED"
],
"start": 14805,
"text": "The private complaint would be deemed to have been merged in police report, accused were discharged by this High Court in the appeal filed against framing of charges, question of permitting complainant to adduce additional evidence thereafter would not arise\"."
}
},
{
"from_name": null,
"id": "3efc97eb593744878c353002bce98adb",
"to_name": null,
"type": null,
"value": {
"end": 15423,
"labels": [
"PRE_RELIED"
],
"start": 15065,
"text": "\n It is further stated in the said decision that : \"when the private complaint is deemed to be merged in the police report as envisaged under Section 210(2) of Criminal Procedure Code and in the said case the accused persons have already been discharged, the question of permitting the complainant to adduce evidence in the private complaint would nor arise\""
}
},
{
"from_name": null,
"id": "c54df756b8c04b5ab89d33eac8c963e3",
"to_name": null,
"type": null,
"value": {
"end": 15595,
"labels": [
"ANALYSIS"
],
"start": 15423,
"text": ".\n If the above said principle is applied in this case, as I have already noted that the factual matrix regarding commission of the offence in both the cases are identical."
}
},
{
"from_name": null,
"id": "2e1ecf666a6c40caba658bb5613831ce",
"to_name": null,
"type": null,
"value": {
"end": 15724,
"labels": [
"ANALYSIS"
],
"start": 15596,
"text": "The offences alleged against the accused are all identical, only the motive factor is different in the complainant and in Ex.P3."
}
},
{
"from_name": null,
"id": "68a32300a35a497586d8f1c5052a9ab7",
"to_name": null,
"type": null,
"value": {
"end": 16017,
"labels": [
"ANALYSIS"
],
"start": 15725,
"text": "When both the parties had opportunity before the Sessions Court during trial in the report submitted by the Police after framing of the charges, in my opinion, there was no necessity for the Trial Court to provide any more opportunity to the complainant to proceed with the private complaint."
}
},
{
"from_name": null,
"id": "dc6b401922ef4298b19bcfa73e16616c",
"to_name": null,
"type": null,
"value": {
"end": 16155,
"labels": [
"ANALYSIS"
],
"start": 16017,
"text": "\nConsequently, the private complaint virtually becomes redundant and liable to be dismissed as rightly done by the learned Sessions Judge."
}
},
{
"from_name": null,
"id": "21dc0ae37bad42d88f5b834e387d1e3a",
"to_name": null,
"type": null,
"value": {
"end": 16344,
"labels": [
"RATIO"
],
"start": 16156,
"text": "Therefore, there is no ground made out by the appellant in this case in order to set aside the order passed by the learned Sessions Judge so far it relates to Special SC ST C.C.\nNo.17/2004"
}
},
{
"from_name": null,
"id": "c6177c5055704af3bb542452e53c30ac",
"to_name": null,
"type": null,
"value": {
"end": 16429,
"labels": [
"RPC"
],
"start": 16344,
"text": ". Therefore, the Criminal Appeal No.\n2518/2012 consequently deserves to be dismissed."
}
},
{
"from_name": null,
"id": "dc217b717ec84a448b1c5c0ccf1df109",
"to_name": null,
"type": null,
"value": {
"end": 16780,
"labels": [
"ANALYSIS"
],
"start": 16429,
"text": "\n 15. Now, coming to the Criminal Appeal No.2517/2012 as I have already narrated that in this case the learned Sessions Judge after analysing the evidence of all the witnesses has observed that PW-2 has failed to give proper evidence supporting the contents of Ex.P3 filed by him and he has stated that he has not at all filed any report as per Ex.P3."
}
},
{
"from_name": null,
"id": "d6d9b614a50346eea6397eb8f877e548",
"to_name": null,
"type": null,
"value": {
"end": 16871,
"labels": [
"ANALYSIS"
],
"start": 16781,
"text": "He does not know the contents of Ex.P3, but his father has filed the report to the Police."
}
},
{
"from_name": null,
"id": "a7f8bdfda0ee4d9a8896ea1b13f2df9b",
"to_name": null,
"type": null,
"value": {
"end": 16962,
"labels": [
"ANALYSIS"
],
"start": 16872,
"text": "But PW-4 father has stated in his evidence that his son filed a report before the Police."
}
},
{
"from_name": null,
"id": "f5fc0f1a8f7941caa3b085ffb77d061c",
"to_name": null,
"type": null,
"value": {
"end": 17098,
"labels": [
"ANALYSIS"
],
"start": 16962,
"text": "\nThe learned Sessions Judge observed that the evidence of PW-4 is silent about the overt-act of the accused on the date of the incident."
}
},
{
"from_name": null,
"id": "8c479fd49ba9490bb05b856157b38b6d",
"to_name": null,
"type": null,
"value": {
"end": 17402,
"labels": [
"ANALYSIS"
],
"start": 17099,
"text": "Therefore, the testimony of PWs 2 and 3 having no consistency with each other and the other witnesses have in my opinion, totally turned hostile to the prosecution case no evidence corroborating the case of the prosecution nor established satisfactorily the alleged offences against the accused persons."
}
},
{
"from_name": null,
"id": "a353adba680d4d2aa0d3a2bdec50bffd",
"to_name": null,
"type": null,
"value": {
"end": 17475,
"labels": [
"ANALYSIS"
],
"start": 17403,
"text": "Therefore, the learned Sessions Judge has acquitted the accused persons."
}
},
{
"from_name": null,
"id": "39f52e5d3adf43ac89050da13a5d4a3e",
"to_name": null,
"type": null,
"value": {
"end": 17669,
"labels": [
"ANALYSIS"
],
"start": 17475,
"text": "\n 16. Now, in order to appreciate whether the observations made by the Sessions Court is proper or not, it is just and necessary to have brief look out the evidence of the prosecution witnesses."
}
},
{
"from_name": null,
"id": "7c8d724f2bc844f398ea5362abe25575",
"to_name": null,
"type": null,
"value": {
"end": 17794,
"labels": [
"ANALYSIS"
],
"start": 17669,
"text": "\n 17. PW-2 is not a relevant witness who has given only the Caste Certificate of the accused persons and as well as the PW-2."
}
},
{
"from_name": null,
"id": "e6a2118c36ab49bc84f27d19b7c02f19",
"to_name": null,
"type": null,
"value": {
"end": 18010,
"labels": [
"ANALYSIS"
],
"start": 17795,
"text": "There is absolutely no allegations whatsoever in the evidence of PW-2 (appellant herein) that on that particular date the accused persons have abused him with any filthy language particularly referring to his caste."
}
},
{
"from_name": null,
"id": "d980c563efa74dcf8562d5a6eeb146c7",
"to_name": null,
"type": null,
"value": {
"end": 18137,
"labels": [
"ANALYSIS"
],
"start": 18011,
"text": "Therefore, there is no semblance of evidence in order to attract any provisions much less Section 3(i) (x) of SC ST (POA) Act."
}
},
{
"from_name": null,
"id": "1bc2ee4ca23d4a45913535e157f2fa93",
"to_name": null,
"type": null,
"value": {
"end": 18204,
"labels": [
"ANALYSIS"
],
"start": 18138,
"text": "PW-2 has so far written the complaint narrated about the incident."
}
},
{
"from_name": null,
"id": "97609228c42741c3b0c927f43dd6de45",
"to_name": null,
"type": null,
"value": {
"end": 18255,
"labels": [
"ANALYSIS"
],
"start": 18205,
"text": "I would like to discuss his evidence little later."
}
},
{
"from_name": null,
"id": "8f04f5a4cf5342689a617be670a159bd",
"to_name": null,
"type": null,
"value": {
"end": 18297,
"labels": [
"ANALYSIS"
],
"start": 18255,
"text": "\n 18. PW-4 is the father of the appellant."
}
},
{
"from_name": null,
"id": "1f43e804d35a42dbb5d5d78ab30ec6a6",
"to_name": null,
"type": null,
"value": {
"end": 18354,
"labels": [
"ANALYSIS"
],
"start": 18298,
"text": "Let me see whether he is an eye witness to the incident."
}
},
{
"from_name": null,
"id": "06304e729eef42608198997653bcd114",
"to_name": null,
"type": null,
"value": {
"end": 18618,
"labels": [
"ANALYSIS"
],
"start": 18355,
"text": "He deposed before the Court that, on that particular day of the incident one Shettevva came to his house at about 4.30 a.m. and informed that PW-2 was being assaulted by the accused with incriminating articles by tying him to a telephone pole with a plastic rope."
}
},
{
"from_name": null,
"id": "9a408d51c3474a74ad23b198958a330c",
"to_name": null,
"type": null,
"value": {
"end": 18827,
"labels": [
"ANALYSIS"
],
"start": 18619,
"text": "Thereafter, himself and Dharmappa went to the spot and found PW-2 was tied to the telephone pole and PW-2 sustained burn injuries and all the accused persons were present at the spot and PW-2 was unconscious."
}
},
{
"from_name": null,
"id": "a34125193bf74e5a9f927b5f9c288311",
"to_name": null,
"type": null,
"value": {
"end": 18871,
"labels": [
"ANALYSIS"
],
"start": 18828,
"text": "Thereafter, PW-2 was taken to the Hospital."
}
},
{
"from_name": null,
"id": "e04053c118754623bc812af43eb93ff0",
"to_name": null,
"type": null,
"value": {
"end": 18971,
"labels": [
"ANALYSIS"
],
"start": 18872,
"text": "So, it clearly goes to show that this witness and Dharmappa were not eye witnesses to the incident."
}
},
{
"from_name": null,
"id": "1c2e19ca7c6d4c20a20b2c8d21c22dfb",
"to_name": null,
"type": null,
"value": {
"end": 19028,
"labels": [
"ANALYSIS"
],
"start": 18972,
"text": "They never state any overt- acts of the accused persons."
}
},
{
"from_name": null,
"id": "0a1845d1edec4875a001b87a7432c6b2",
"to_name": null,
"type": null,
"value": {
"end": 19212,
"labels": [
"ANALYSIS"
],
"start": 19029,
"text": "This witness also says that they called elderly person in the village and PW-3 came there and in fact advised the accused persons, but the accused persons did not listen to his words."
}
},
{
"from_name": null,
"id": "73baded032944d3cb13845c288a50c83",
"to_name": null,
"type": null,
"value": {
"end": 19325,
"labels": [
"ANALYSIS"
],
"start": 19213,
"text": "In order to support this version, PW-3 was also examined, but he turned totally hostile to the prosecution case."
}
},
{
"from_name": null,
"id": "043ac31853d24bb5b518d0f890f18641",
"to_name": null,
"type": null,
"value": {
"end": 19383,
"labels": [
"ANALYSIS"
],
"start": 19326,
"text": "He never supported to the prosecution case to any extent."
}
},
{
"from_name": null,
"id": "76f9abe661af45f5b1c08ddb5c7bc67c",
"to_name": null,
"type": null,
"value": {
"end": 19463,
"labels": [
"ANALYSIS"
],
"start": 19384,
"text": "PW-5 Dharmappa Talawar in fact also deposed to the same effect as that of PW-4."
}
},
{
"from_name": null,
"id": "b5aa0e6017c34dba9642a37c89ac3a1b",
"to_name": null,
"type": null,
"value": {
"end": 19511,
"labels": [
"ANALYSIS"
],
"start": 19464,
"text": "He has also not an eye witness to the incident."
}
},
{
"from_name": null,
"id": "e794cf64563042adb833a8566e87a6e1",
"to_name": null,
"type": null,
"value": {
"end": 19630,
"labels": [
"ANALYSIS"
],
"start": 19512,
"text": "One Irappa Kurabar is the witness to the panchnama Ex.P7 under which the Police have seized MOs 1 to 3 from the spot."
}
},
{
"from_name": null,
"id": "ee22960b3a0b42bca80343cc0eb11e86",
"to_name": null,
"type": null,
"value": {
"end": 19678,
"labels": [
"ANALYSIS"
],
"start": 19631,
"text": "But there is no support from this witness also."
}
},
{
"from_name": null,
"id": "8cac1d92e9304342b1ebeb5b0d4decd8",
"to_name": null,
"type": null,
"value": {
"end": 19876,
"labels": [
"ANALYSIS"
],
"start": 19679,
"text": "Like that way PW-7 Irappa Alagawadi, who was examined as an eye witness to the incident and PW-8 Surappa Ambiger, PW-9 Mudakappa Bisinakoppa were also examined as eye witnesses to this incident."
}
},
{
"from_name": null,
"id": "ca4619d17855438786720496acf5aad3",
"to_name": null,
"type": null,
"value": {
"end": 19937,
"labels": [
"ANALYSIS"
],
"start": 19877,
"text": "But none of them have supported the case of the prosecution."
}
},
{
"from_name": null,
"id": "9d5c9c7ecad64bbf8c521e7d92fd84e9",
"to_name": null,
"type": null,
"value": {
"end": 20030,
"labels": [
"ANALYSIS"
],
"start": 19937,
"text": "\n 19. PW-10 is the retired Dy. S.P. who investigated the same and submitted the charge sheet."
}
},
{
"from_name": null,
"id": "0c4667eea4c44d0988acebbe50aba965",
"to_name": null,
"type": null,
"value": {
"end": 20136,
"labels": [
"ANALYSIS"
],
"start": 20031,
"text": "There is no incriminating evidence available in the evidence of this witness against the accused persons."
}
},
{
"from_name": null,
"id": "ad3b48a3a3fd4f288e72f1aa02874a3b",
"to_name": null,
"type": null,
"value": {
"end": 20385,
"labels": [
"ANALYSIS"
],
"start": 20137,
"text": "PW-11 Iranna Kulkarni is the person who actually recorded the statement of PW-2 in the Police Station as per Ex.P3, registered a case and sent the FIR to the Court as per Ex.P10 and thereafter, he sent the complainant to the Hospital for treatment."
}
},
{
"from_name": null,
"id": "5c8a66fe4c8747d9a3e0fe78ff58a88e",
"to_name": null,
"type": null,
"value": {
"end": 20568,
"labels": [
"ANALYSIS"
],
"start": 20386,
"text": "According to the complainant, this witness is the relative of accused persons, but in the evidence of PW-1 nothing is there to suggest that he is the relative of the accused persons."
}
},
{
"from_name": null,
"id": "279fdc6421fd44798ade2f16070da5d4",
"to_name": null,
"type": null,
"value": {
"end": 20855,
"labels": [
"ANALYSIS"
],
"start": 20569,
"text": "PW-2 in his evidence has stated that PW-11 is the relative of the accused persons, but except his bald statement which was denied during the course of cross-examination of the accused persons nothing is there to indicate that this Iranna Kulkarni is the relative of the accused persons."
}
},
{
"from_name": null,
"id": "9611e335f334480d9581ad3cbe7230fa",
"to_name": null,
"type": null,
"value": {
"end": 21135,
"labels": [
"ANALYSIS"
],
"start": 20856,
"text": "Mere saying that PW-11 is the relative of accused persons without proof and only for that reason a false first information has been prepared by PW-1 cannot be believed unless the said allegations made by PW-2 is established by cogent and convincing evidence satisfying the Court."
}
},
{
"from_name": null,
"id": "a74c110fa75c45efa8e97e439c34446c",
"to_name": null,
"type": null,
"value": {
"end": 21213,
"labels": [
"ANALYSIS"
],
"start": 21136,
"text": "Therefore, the said allegations remain as mere allegations without any proof."
}
},
{
"from_name": null,
"id": "8a3f6dc41149450daf8999ce99ee65b1",
"to_name": null,
"type": null,
"value": {
"end": 21423,
"labels": [
"ANALYSIS"
],
"start": 21213,
"text": "\n 20. PW-12 is the Doctor, of course he has supported the case of the prosecution and stated in his evidence that he has examined the complainant on 10.02.2003 at 3.00 a.m. and found the injuries on his person."
}
},
{
"from_name": null,
"id": "b9199c45117b4aae8febf8b045a6a380",
"to_name": null,
"type": null,
"value": {
"end": 21535,
"labels": [
"ANALYSIS"
],
"start": 21423,
"text": "\nAccording to PW-2 as stated by him in his complaint that the incident happened on 10.02.2003 at about 5.00 a.m."
}
},
{
"from_name": null,
"id": "30ea652658c54839b4c4b2d720edd108",
"to_name": null,
"type": null,
"value": {
"end": 21681,
"labels": [
"ANALYSIS"
],
"start": 21536,
"text": "The evidence of the Doctor shows that the complainant stated before the Doctor that he sustained injuries with assault on 10.02.2003 at 3.00 a.m."
}
},
{
"from_name": null,
"id": "f5a0085e60f940bdbd895374de471a68",
"to_name": null,
"type": null,
"value": {
"end": 21776,
"labels": [
"ANALYSIS"
],
"start": 21682,
"text": "The injury certificate Ex.P12 also discloses that PW-2 was examined on 10.02.2003 at 1.15 p.m."
}
},
{
"from_name": null,
"id": "fa03ad7987444e9495ac470d10f5ec22",
"to_name": null,
"type": null,
"value": {
"end": 21886,
"labels": [
"ANALYSIS"
],
"start": 21777,
"text": "The document also shows that injuries said to have been caused on 10.02.2003 at 3.00 a.m. due to the assault."
}
},
{
"from_name": null,
"id": "9fba1577c857401db14a769a2846d04b",
"to_name": null,
"type": null,
"value": {
"end": 21942,
"labels": [
"ANALYSIS"
],
"start": 21887,
"text": "This discrepancy has not been satisfactorily explained."
}
},
{
"from_name": null,
"id": "3a4d38b26524438e8b80651113d16bf3",
"to_name": null,
"type": null,
"value": {
"end": 22036,
"labels": [
"ANALYSIS"
],
"start": 21943,
"text": "But this particular document Ex.P12 do not disclose the names of any of the accused persons."
}
},
{
"from_name": null,
"id": "75643a39b4c0491ba6c891a78555d3c1",
"to_name": null,
"type": null,
"value": {
"end": 22124,
"labels": [
"ANALYSIS"
],
"start": 22037,
"text": "The complainant has never stated who actually assaulted him and caused injuries on him."
}
},
{
"from_name": null,
"id": "d27b03fd5eb54970aa14259da640e9fb",
"to_name": null,
"type": null,
"value": {
"end": 22299,
"labels": [
"ANALYSIS"
],
"start": 22125,
"text": "The Doctor in his evidence also does not say that the complainant has disclosed the names of any of the accused persons as the assailants when he was treated in the Hospital."
}
},
{
"from_name": null,
"id": "ab7fabc8ae1a4b5d96deed13c5cc269f",
"to_name": null,
"type": null,
"value": {
"end": 22449,
"labels": [
"ANALYSIS"
],
"start": 22300,
"text": "The time mentioned in the injury certificate and also stated by the Doctor is far far different from that of the time stated by PW-2 in his evidence."
}
},
{
"from_name": null,
"id": "66c6ed4f0ccd4ec6931ead07a7859533",
"to_name": null,
"type": null,
"value": {
"end": 22682,
"labels": [
"ANALYSIS"
],
"start": 22450,
"text": "According to PW-2, the incident took place at 5.00 a.m. and even his father also says that the incident took place at 4.30 a.m. and the Doctor says that the complainant has stated before him that the incident took place at 3.00 a.m."
}
},
{
"from_name": null,
"id": "d521acacf2264ce9b3e62e13eca4331a",
"to_name": null,
"type": null,
"value": {
"end": 22728,
"labels": [
"ANALYSIS"
],
"start": 22683,
"text": "Even Ex.P12 also it is mentioned as 3.00 a.m."
}
},
{
"from_name": null,
"id": "044c798e42974b4cad04d1ea715ae0a6",
"to_name": null,
"type": null,
"value": {
"end": 22905,
"labels": [
"ANALYSIS"
],
"start": 22729,
"text": "Therefore, the Doctor's evidence shows that the complainant has sustained those injuries, but it is not helpful to come to a conclusion as to who actually caused such injuries."
}
},
{
"from_name": null,
"id": "a786a0a38e0344c5a9906cc2547b3ab0",
"to_name": null,
"type": null,
"value": {
"end": 23124,
"labels": [
"ANALYSIS"
],
"start": 22905,
"text": "\nTherefore, I am only left with the evidence of PW-2, no other evidence is available in order to support the case of the prosecution that the accused persons have actually assaulted the injured and caused such injuries."
}
},
{
"from_name": null,
"id": "7fe4dadcd1e245338aadfff775db7d3e",
"to_name": null,
"type": null,
"value": {
"end": 23601,
"labels": [
"ANALYSIS"
],
"start": 23124,
"text": "\nIn this background, now let me consider the evidence of PW-2.\n 21. PW-2 though stated in his examination-in-chief that, on that particular day he was proceeding in front of the house of the accused No.1 and the accused persons have assaulted him and caused such injuries.\nBut nowhere in the examination-in-chief he has stated what was the motive or the reason for the accused persons abruptly coming there at about 5.00 a.m.\nduring the early hours and assault the complainant."
}
},
{
"from_name": null,
"id": "e8f225db32b3459dafe82554a721c7fa",
"to_name": null,
"type": null,
"value": {
"end": 23815,
"labels": [
"ANALYSIS"
],
"start": 23602,
"text": "It is not only the allegations of assault but it is specifically stated that the accused No.1 came with a heated iron bar and touched the different parts of the body of the complainant so as to cause burn injuries"
}
},
{
"from_name": null,
"id": "4d3705a83be1413c858a53acc43bc0f0",
"to_name": null,
"type": null,
"value": {
"end": 24051,
"labels": [
"ANALYSIS"
],
"start": 23815,
"text": ", whether there was so much of time to the accused person to go to his house and heat the iron rod and come and cause such injuries or whether the accused persons were earlier fully prepared to assault the complainant is not made known."
}
},
{
"from_name": null,
"id": "d340f867757b4c829df9805feba456d3",
"to_name": null,
"type": null,
"value": {
"end": 24172,
"labels": [
"ANALYSIS"
],
"start": 24052,
"text": "The motive or the intention of the accused persons has not been specifically stated by PW-2 in his examination-in-chief."
}
},
{
"from_name": null,
"id": "d2780f01aa7048e4ae119c5d16b19d89",
"to_name": null,
"type": null,
"value": {
"end": 24479,
"labels": [
"ANALYSIS"
],
"start": 24173,
"text": "Though in the cross-examination, it is elicited that earlier to the incident the complainant PW-2 was knowing all the accused and the accused persons were not in good terms with the complainant, that too with regard to the feeding of the water from the channel to the agricultural lands of the complainant."
}
},
{
"from_name": null,
"id": "d7be2bb0efb4426f938f3afc08316243",
"to_name": null,
"type": null,
"value": {
"end": 24706,
"labels": [
"ANALYSIS"
],
"start": 24479,
"text": "\nBut this particular aspect should be taken with a pinch salt assault because of the reason the motive factor and the ill-will between the accused and the complainant would cut the case either of the prosecution or the defence."
}
},
{
"from_name": null,
"id": "84169450890e44eea936c7ec08ebbfe7",
"to_name": null,
"type": null,
"value": {
"end": 24895,
"labels": [
"ANALYSIS"
],
"start": 24707,
"text": "This motive or ill-will between the accused persons and the complainant has to be taken into consideration with other surrounding circumstances and other corroborative materials on record."
}
},
{
"from_name": null,
"id": "437128e0b0884df6ad6e9fcbb27a62a1",
"to_name": null,
"type": null,
"value": {
"end": 25197,
"labels": [
"ANALYSIS"
],
"start": 24896,
"text": "Of course, if the prosecution is able to produce sufficient materials to corroborate the evidence of the injured PW-2 then this particular ill-will could have been taken for the purpose of holding that the accused persons because of their ill-will and vengeance committed such an offence against PW-2."
}
},
{
"from_name": null,
"id": "d32cd47af63d481bba823be121b2be99",
"to_name": null,
"type": null,
"value": {
"end": 25682,
"labels": [
"ANALYSIS"
],
"start": 25198,
"text": "If the prosecution fails to establish the case with corroborative materials in order to prove the allegations made against the accused persons this particular motive or ill-will between the accused and the complainant definitely would cut the root of the prosecution case itself, because it can be either way inferred by the Court because of the ill-will and hatred between the accused and the complainant perhaps there is chances of foisting a false case against the accused persons."
}
},
{
"from_name": null,
"id": "2ed2d95bcd994f29bc0de18f249c160a",
"to_name": null,
"type": null,
"value": {
"end": 25902,
"labels": [
"ANALYSIS"
],
"start": 25683,
"text": "In view of the above said factual aspects, I am of the opinion, the evidence of PW-2 alone cannot be relied upon for the purpose of drawing any inference that the prosecution has proved the case beyond reasonable doubt."
}
},
{
"from_name": null,
"id": "add5340f34d94ee5bdd503d2c9111638",
"to_name": null,
"type": null,
"value": {
"end": 25988,
"labels": [
"ANALYSIS"
],
"start": 25902,
"text": "\n 22. The Police have submitted the charge sheet on the basis of the FIR as per Ex.P3."
}
},
{
"from_name": null,
"id": "84fb90d82004417aa596baf798d326b1",
"to_name": null,
"type": null,
"value": {
"end": 26058,
"labels": [
"ANALYSIS"
],
"start": 25989,
"text": "According to PW-2, he never given any such information to the Police."
}
},
{
"from_name": null,
"id": "f61cb650e7ce4461a7447137b30a9ded",
"to_name": null,
"type": null,
"value": {
"end": 26370,
"labels": [
"ANALYSIS"
],
"start": 26059,
"text": "PW-11 who is the Police Officer who is a public servant, he has categorically stated that, on that particular date the complainant himself went to the Police Station and gave oral complaint and PW-11 has reduced the same into writing and it was read over and after knowing the contents PW-2 has affixed his LTM."
}
},
{
"from_name": null,
"id": "c5ca64f24ff54bfdb1e0a5a051c97d21",
"to_name": null,
"type": null,
"value": {
"end": 26469,
"labels": [
"ANALYSIS"
],
"start": 26370,
"text": "\n 23. The learned Counsel contends that PW-2 knows signing (putting his signature) he is not a LTM."
}
},
{
"from_name": null,
"id": "c1f355df0bed40e7a8e3474b675b2b76",
"to_name": null,
"type": null,
"value": {
"end": 26555,
"labels": [
"ANALYSIS"
],
"start": 26469,
"text": "\nTherefore, no occasion for PW-1 to take LTM of this PW- 2 contrary to his submission."
}
},
{
"from_name": null,
"id": "23c950e9d99e40efa468d11c6687a22c",
"to_name": null,
"type": null,
"value": {
"end": 26819,
"labels": [
"ANALYSIS"
],
"start": 26556,
"text": "If we read the evidence of PW-2, it clearly discloses that PW-2 has deposed that due to the injuries sustained by him he became unconscious and he gained his consciousness in KIMS Hospital, Hubli and Naragund Police went there and obtained his LTM on a complaint."
}
},
{
"from_name": null,
"id": "e7b81fd6caf04b6da572f84ab815465f",
"to_name": null,
"type": null,
"value": {
"end": 26861,
"labels": [
"ANALYSIS"
],
"start": 26820,
"text": "But they did not entertain his complaint."
}
},
{
"from_name": null,
"id": "3f511230fe214c858205d79fd858012c",
"to_name": null,
"type": null,
"value": {
"end": 26928,
"labels": [
"ANALYSIS"
],
"start": 26862,
"text": "So, himself clearly disclosed that he has put his LTM on a report."
}
},
{
"from_name": null,
"id": "5de4484e642b41deb4d814a5d0823206",
"to_name": null,
"type": null,
"value": {
"end": 27026,
"labels": [
"ANALYSIS"
],
"start": 26929,
"text": "It is not his case that, he has given some other report to Police other than Ex.P3 to the Police."
}
},
{
"from_name": null,
"id": "354bd97a037d463788891990ee2b5b78",
"to_name": null,
"type": null,
"value": {
"end": 27095,
"labels": [
"ANALYSIS"
],
"start": 27027,
"text": "According to him, he has filed a private complaint before the Court."
}
},
{
"from_name": null,
"id": "931287d1c7214adca246cbdc9256319b",
"to_name": null,
"type": null,
"value": {
"end": 27185,
"labels": [
"ANALYSIS"
],
"start": 27096,
"text": "He further deposed that his father has filed a report before the Naragund Police Station."
}
},
{
"from_name": null,
"id": "d2fa26dfd2c14862b4356c12d61132df",
"to_name": null,
"type": null,
"value": {
"end": 27517,
"labels": [
"ANALYSIS"
],
"start": 27186,
"text": "The evidence of PW-11 so far as this aspect is concerned, the father of PW-2 he stated that on that particular date of incident the accused were advised by elders of the village, but the accused did not listen on the spot, then he went to Naragund Police Station, narrated the incident orally and the same was reduced into writing."
}
},
{
"from_name": null,
"id": "236f6bf620c04e2ba02f580c6c56a0d9",
"to_name": null,
"type": null,
"value": {
"end": 27593,
"labels": [
"ANALYSIS"
],
"start": 27518,
"text": "He never states that his son PW-2 was not with him on that particular date."
}
},
{
"from_name": null,
"id": "c55be5e97a12431aa13c175422519b07",
"to_name": null,
"type": null,
"value": {
"end": 27724,
"labels": [
"ANALYSIS"
],
"start": 27594,
"text": "PW-2 says that his father actually came to the spot and took him to the Hospital and in the KIMS Hospital he gained consciousness."
}
},
{
"from_name": null,
"id": "8c95291763b640e5b29d2c5a14512882",
"to_name": null,
"type": null,
"value": {
"end": 27828,
"labels": [
"ANALYSIS"
],
"start": 27725,
"text": "Therefore, after the incident his father was throughout with PW-2 till he was admitted to the hospital."
}
},
{
"from_name": null,
"id": "e311243f5ee54230baa615017661549d",
"to_name": null,
"type": null,
"value": {
"end": 27972,
"labels": [
"ANALYSIS"
],
"start": 27829,
"text": "Therefore, it becomes doubtful circumstances as stated by PW-11 whether PWs 2 and 4 went to the Police Station and lodged the FIR as per Ex.P3."
}
},
{
"from_name": null,
"id": "be55514d8c9f4fc297781e79f31ec923",
"to_name": null,
"type": null,
"value": {
"end": 28194,
"labels": [
"ANALYSIS"
],
"start": 27973,
"text": "The conduct of PW-11 being the public servant as Police Officer cannot be unnecessarily doubted he has discharged his duty in accordance with law and after recording the statement of PW-2 he must have registered the case."
}
},
{
"from_name": null,
"id": "e04c66e8ac9d4faca0b4b762aff21fab",
"to_name": null,
"type": null,
"value": {
"end": 28354,
"labels": [
"ANALYSIS"
],
"start": 28194,
"text": "\n 24. The motive attributed to the accused persons and the circumstances narrated in Ex.P3, in my opinion, little bit relevant to consider the attitude of PW-2."
}
},
{
"from_name": null,
"id": "313a0893fe3246619858a2b266c5acfc",
"to_name": null,
"type": null,
"value": {
"end": 28540,
"labels": [
"ANALYSIS"
],
"start": 28355,
"text": "As per the evidence of PW-2, he has stated that he was proceeding in front of the house of the accused No.1 and all the accused abruptly came there and assaulted him without any reason."
}
},
{
"from_name": null,
"id": "55650856092a4430a134c67b17cb6110",
"to_name": null,
"type": null,
"value": {
"end": 29092,
"labels": [
"ANALYSIS"
],
"start": 28541,
"text": "But in Ex.P3 it is categorically stated by PW-2 that, on that particular day of the incident in the early hours at about 4.00 a.m. he went to the house of the accused No.1 in order to have illicit sexual act with the wife of the accused No.1 and in that context the accused No.1 and other accused persons who were there near the house at that particular point of time, they came little later and found the complainant near their house attempting to gain wrongful entry into the house and thereafter, the accused persons have assaulted the complainant."
}
},
{
"from_name": null,
"id": "7af9922520ad406f9c10fb62e1b946c1",
"to_name": null,
"type": null,
"value": {
"end": 29343,
"labels": [
"ANALYSIS"
],
"start": 29093,
"text": "So in order to ward-off this particular attitude of PW-2 in going to the house of accused No.1 to have illicit sexual act with the wife of the accused No.1, perhaps he must have changed his version and filed a private complaint before the Magistrate."
}
},
{
"from_name": null,
"id": "06c361b033b142d29cd139464529f232",
"to_name": null,
"type": null,
"value": {
"end": 29512,
"labels": [
"ANALYSIS"
],
"start": 29344,
"text": "Even assault by the accused persons for a moment is accepted, perhaps the accused might have assaulted with other persons in order to teach a lesson to the complainant."
}
},
{
"from_name": null,
"id": "9448aba98c4442a08c5d41f61eeadfdf",
"to_name": null,
"type": null,
"value": {
"end": 29632,
"labels": [
"ANALYSIS"
],
"start": 29513,
"text": "Because according to his own admission, he has gone there to have illicit sexual act with the wife of the accused No.2."
}
},
{
"from_name": null,
"id": "0a89b2bb48c34a69aa55ecabd74af6c3",
"to_name": null,
"type": null,
"value": {
"end": 29775,
"labels": [
"ANALYSIS"
],
"start": 29633,
"text": "Therefore, the two versions stated by the complainant in Ex.P3 and in the private complaint make totally the case of the complainant doubtful."
}
},
{
"from_name": null,
"id": "01f268caeb8147a58d87d91b15430b0f",
"to_name": null,
"type": null,
"value": {
"end": 29932,
"labels": [
"ANALYSIS"
],
"start": 29776,
"text": "Therefore, when a serious doubt is created in the mind of the Court, the evidence of PW-2 cannot be made as a sole basis for convicting the accused persons."
}
},
{
"from_name": null,
"id": "e6c3a08e990e4a04bf06b93c7db550f2",
"to_name": null,
"type": null,
"value": {
"end": 30048,
"labels": [
"ANALYSIS"
],
"start": 29933,
"text": "Therefore, I don't find any strong reasons to interfere with the judgment of acquittal recorded by the Trial Court."
}
},
{
"from_name": null,
"id": "ea83c95e7aee4ef09bc26b52925fa5db",
"to_name": null,
"type": null,
"value": {
"end": 30687,
"labels": [
"PRE_RELIED"
],
"start": 30048,
"text": "\n 25. Moreover, the Apex Court in a decision reported in 2013 (1) Kar.L.J. 591 SC between Govindaraju alias Govinda Vs. State by Sriramapuram P.S. and another has laid down certain principles as to under what circumstance the Appellate Court could interfere with the judgment of acquittal recorded by the Trial Court i.e. to say : \"The Appellate Court can interfere with the judgment of acquittal but normally should not substitute its views unless it records the reasons that findings recorded by the Lower Court are erroneous, contrary to the settled principles of criminal law and the judgment of acquittal is perverse on facts or law\"."
}
},
{
"from_name": null,
"id": "70f13aa162e7434385851c0992c41333",
"to_name": null,
"type": null,
"value": {
"end": 30922,
"labels": [
"RATIO"
],
"start": 30687,
"text": "\n 26. In view of the above said factual matrix and also the circumstances of the case and the above said decision, I am of the opinion, the Judgment of the Trial Court is neither illegal nor capricious so as to interfere with the same."
}
},
{
"from_name": null,
"id": "e2b2b73417104b59a081467b02c66ccb",
"to_name": null,
"type": null,
"value": {
"end": 30976,
"labels": [
"RATIO"
],
"start": 30923,
"text": "Hence, both the appeals also deserve to be dismissed."
}
},
{
"from_name": null,
"id": "ff518b11b87d4f30805868ca8fbecb8d",
"to_name": null,
"type": null,
"value": {
"end": 31102,
"labels": [
"RPC"
],
"start": 30976,
"text": "\n 27. Accordingly, the appeal preferred by the appellant in Criminal Appeal Nos. 2518/2012 and 2517/2012 are hereby dismissed."
}
},
{
"from_name": null,
"id": "1efb15f695604c68af4004056991df60",
"to_name": null,
"type": null,
"value": {
"end": 31303,
"labels": [
"RPC"
],
"start": 31102,
"text": "\n As this Court has considered the case on merits, the delay in preferring the Crl.A. No. 2518/2012 is hereby condoned and accordingly, I.A. No.1 in Crl. A.\nNo.2518/2012 is disposed of.\n Sd/- JUDGE Rbv"
}
}
]
}
] | 4,253 | {
"text": " IN THE HIGH COURT OF KARNATAKA,\n DHARWAD BENCH\n\n DATED THIS THE 4TH DAY OF JUNE, 2014\n BEFORE:\n\n THE HON'BLE MR. JUSTICE K.N. PHANEENDRA\nCRL. A. NO. 2518/2012 C/W CRL.A. NO.2517/2012\n\nBETWEEN:\n\nIN CRL.A. NO. 2518/2012:\n\nSambulingappa\n\nS/o Ajjappa Talawar,\n\nAge: 36 years, Occ: Agricultural Coolie,\n\nR/o Siddapur, Tq. Naragund,\n\nDist. Gadag. ... Appellant\n\n (By Sri. D.B. Karigar, Adv.)\n\nAND:\n\n1. Ninganagouda Iranagouda\n Hiregoudar, Age: 33 years,\n Occ: Agriculture,\n R/o Siddapur, Tq. Naragund,\n Dist. Gadag.\n\n2. Manjula W/o Ninganagouda\n Hiregouder, Age: 32 years,\n Occ: Household work,\n R/o Siddapur, Tq. Naragund,\n Dist. Gadag.\n\n3. Sanganagouda\n S/o Siddanagouda Hiregoudar,\n Age: 35 years, Occ: Agriculture,\n R/o Siddapur, Tq. Naragund,\n Dist. Gadag.\n\n4. Premagouda S/o Veeranagouda\n Hiregouder, Age: 33 years,\n Occ: Agriculture, R/o Siddapur,\n Tq. Naragund, Dist. Gadag.\n\n5. Anandagouda\n S/o Siddanagouda Hiregouder,\n Age: 32 years, Occ: Agriculture,\n R/o Siddapur, Tq. Naragund,\n Dist. Gadag.\n\n6. Girijadevi W/o Iranagouda Patil,\n Age: 52 years, Occ: Household work,\n R/o Siddapur, Tq. Naragund,\n Dist. Gadag.\n\n7. The State of Karnataka, ... Respondents\n Rep. by SPP.\n\n (By Sri. S.B. Naik, Adv. for\n Sri. K.L. Patil, Adv. for R-1 to R-6,\nSri. Vijayakumar Majage, HCGP for R-7)\n\n THIS CRIMINAL APPEAL IS FILED UNDER\nSECTION 372 OF CODE OF CRIMINAL PROCEDURE,\nPRAYING TO ALLOW THIS APPEAL; SET ASIDE THE\nIMPUGNED JUDGMENT AND ORDER OF ACQUITTAL OF THE ACCUSED PERSONS PASSED BY THE DISTRICT AND SESSIONS JUDGE, GADAG IN ITS SPL.\nSC/ST CC NO. 17/2004 DATED 28.10.2010 AND THEREBY CONVICT THE ACCUSED.\n BETWEEN: IN CRL.A. NO. 2517/2012: Sambulingappa S/o Ajjappa Talawar, Age: 36 years, Occ: Agricultural Coolie, R/o Siddapur, Tq. Naragund, Dist. Gadag. ... Appellant (By Sri. D.B. Karigar, Adv.) AND: 1. Ninganagouda Iranagouda Hiregoudar, Age: 33 years, Occ: Agriculture, R/o Siddapur, Tq. Naragund, Dist. Gadag.\n 2. Manjula W/o Ninganagouda Hiregouder, Age: 32 years, Occ: Household work, R/o Siddapur, Tq. Naragund, Dist. Gadag.\n 3. Sanganagouda S/o Siddanagouda Hiregoudar, Age: 35 years, Occ: Agriculture, R/o Siddapur, Tq. Naragund, Dist. Gadag.\n 4. Premagouda S/o Veeranagouda Hiregouder, Age: 33 years, Occ: Agriculture, R/o Siddapur, Tq. Naragund, Dist. Gadag.\n 5. The State of Karnataka, ... Respondents Rep. by SPP.\n (By Sri. S.B. Naik, Adv. for Sri. K.L. Patil, Adv. for R-1 to R-4, Sri. Vijayakumar Majage, HCGP for R-7) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF CODE OF CRIMINAL PROCEDURE, PRAYING TO ALLOW THIS APPEAL; SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF ACQUITTAL OF THE ACCUSED PERSONS PASSED BY THE DISTRICT AND SESSIONS JUDGE, GADAG IN ITS SPL.\nSC/ST CC NO. 6/2003 DATED 28.10.2010 AND THEREBY CONVICT THE ACCUSED.\n THESE CRIMINAL APPEALS COMING ON FOR DICTATING JUDGMENT, THIS DAY THE COURT DELIVERED THE FOLLOWING: JUDGMENT The above said two appeals are clubbed in order to avoid repetition of facts involved in these cases and the common judgment is passed.\n 2. The appellant who is the complainant in Spl. Case No. 17/2003 and PW-2 in Spl. Case No. 6/2003 on the file of the District and Sessions Judge, Gadag challenged the judgments passed by the said Court in the above said two cases vide Judgments dated 28th day of October 2010.\n 3. The brief factual matrix of the case are that, on 10.02.2003 according to the appellant in the morning hours at about 5.00 a.m. the appellant Shambulingappa was proceeding to his land to harvest the wheat crop. He was alone going towards his land on that day. While he was passing through the house of the accused No.1 he observed a dog chased him and attempted to bite him. When he was about to beat the said dog with a stick the respondent Nos.1 to 4 who are arrayed as accused Nos.1 to 4 before the Trial Court came there and tied the appellant to a telephone pole with the help of rope and abused him with filthy language and assaulted him with hands, stick and rope.\nIt is specifically alleged that Ninganagouda Iranagouda Hiregouder Accused No.1 has assaulted the appellant with stick and he came with a heated iron rod and swiped iron rod on different parts of the body of the appellant. Due to which he sustained burn injuries and he lost consciousness and thereafter his father came there admitted complainant to KIMS Hospital and taken treatment there.\n 4. It is the further case of the complainant that though he did not file any report before the Police but the Police themselves came to the Hospital and taken his left hand thumb impression thereafter concocted the FIR (Ex P3). It is contended that thereafter some days, later he came to know that the contents of the FIR registered by the Police was not as stated by him, therefore, he lodged a private complaint before the J.M.F.C., Naragund Court narrating the above said real facts. The learned Magistrate has registered a case for the offences punishable under Sections 324, 325, 326, 307, 504, 506(2) r/w 149 of I.P.C. and Section 3(i) (viii) of SC/ST (Prevention of Atrocities) Act, against the accused persons. Thereafter, the Magistrate has taken the cognizance and recorded the statements of some of the witnesses on behalf of the complainant, i.e. to say three witnesses were examined by the complainant in that private complaint. As the learned Magistrate came to know that a Police case is also registered by the Police in Crime No. 19/2003 for the offences under Sections 323, 324, 355, 342, 504 r/w Section 34 of I.P.C. and also Section 3(i) (x) of SC/ST (Prevention of Atrocities) Act, 1987. The learned Magistrate in fact has stayed the proceedings for some time.\n 5. It is seen from the records that the Police after due investigation submitted a charge sheet before the Special Court and a case is registered in Special SC/ST CC No. 6/2003. It appears, after the said case is being registered in the special case, the learned Magistrate has also committed the said private complaint to the Special Court. In fact, the Special Court has also registered the said complaint case in Special SC ST CC No.17/2004. In fact, the learned Sessions Judge has proceeded with the Police report and framed the charges against the accused persons for the offences under Sections 342, 324, 355, 504, 506 of I.P.C. and Section 3(i) (ii) (x) of SC/ST (Prevention of Atrocities) Act. The prosecution in order to prove the guilt against the accused in Special Case No. 6/2003 examined 13 witnesses PWs 1 to 13 and got marked Ex.P1 to P12 and also material objects 1 to 5 and closed its case.\n 6. The learned Sessions Judge recorded the statement of the accused persons under Section 313 of Cr.P.C. and after hearing the arguments proceeded to pass the judgment in both the cases on the same day.\n The learned Sessions Judge has taken the view that when the Police have registered the case, investigated the matter and submitted the charge sheet on the same factual aspects and a private complaint is also filed on the same factual aspects but with different motives for commission of the offence by the accused. The learned Sessions Judge was of the view that proceeding with the Police report to try the accused is proper, therefore in fact, he dismissed the Special SC ST Case No.17/2004 as not maintainable and accused were acquitted so far as that case is concerned. On the same day, the learned Sessions Judge on merits discussing the evidence on record came to the conclusion that the prosecution has not proved the case against the accused persons beyond all reasonable doubt, and acquitted the accused in Spl.SC ST CC No.6/2003. The above said two judgments are assailed before this Court.\n 7. The learned Counsel for the appellant strenuously contended that though the incident taken place with regard to the assault by the accused persons on the appellant and sustaining of injury by the appellant are same but so far as the facts relating to motive is concerned, the appellant has denied in his statement in the first information report alleged to has been given by him before the Police. Therefore, he has led the evidence before the Trial Court speaking to the truth as to what exactly happened on that particular day according to him. Though he has produced sufficient material before the Trial Court the Trial Court has not properly appreciated the evidence on record and wrongly recorded an acquittal judgment against the prosecution. He further contends that the evidence of PW-2 coupled with the evidence of the Doctor, if it is appreciated in proper perspective along with the cross- examination of the complainant, which definitely show that there was some ill-will and misunderstanding between the accused and as well as the complainant with reference to feeding of water to their lands, with that vengeance the accused persons have committed such offences. Though the case has been amply proved before the Court, the Trial Court has wrongly acquitted the accused persons. Therefore, this Court has to re- appreciate the evidence on record and to convict the accused persons for the offences alleged against them.\n 8. Per contra, the learned Counsel for the respondents (accused before the Trial Court) contended that the materials placed before the Trial Court by the prosecution shows that there are two divergent versions stated by PW-2. He has given the report before the Police as per Ex.P3 and filed a private complaint before the learned Magistrate in C.C. No.493/2003. The motive factor and the factual aspects actually happened on that day has been totally deviated, and two different versions have been stated by him. Therefore, the Trial Court has properly appreciated the evidence holding that PW-3 is not a trust worthy witness for acceptance.\nHe further contended that except the evidence of PW-2 there is absolutely no material to corroborate his evidence. Further, added to that the PW-2 himself has admitted that there was misunderstanding and ill-will between himself and the accused persons, that may be one of the reasons to foist a false case against the accused persons. Therefore, considering all the evidence, circumstances prevailing in the case the Trial Court after properly appreciating the materials on record rightly acquitted the accused persons and there is no room to interfere with such a judgment. Hence, he pleaded for dismissal of both the appeals.\n 9. On the basis of the above rival contentions, the point that would arise for consideration of this Court is that : \"Whether the appellant has made out any reasonable or substantial ground to interfere with the judgment of acquittal passed by the Trial Court and consequently to convict the accused persons\" ?\n 10. Before adverting to the factual matrix of this case, it is just and necessary for this Court to find out whether the private complaint filed by the complainant as dismissed by the Trial Court is proper.\n 11. As I have narrated that the appellant has filed a private complaint in C.C. No.493/2003 before the J.M.F.C., Naragund. The allegations made in the complaint with regard to the assault by the accused persons, sustaining of the injuries by him are all same so far as the first information alleged to have been lodged by the complainant before the Police under Ex.P3. The difference is only that in Ex.P3 it is categorically narrated that on that particular date this complainant had been to the house of the accused No.1 in order to have illicit sexual relationship with the wife of accused No.1 (i.e. accused No.2), when he went there, standing near the house of accused No.1, tapped the door of the house of accused No.1 the accused No.2 did not open the door. By that time another accused No.1 came there and came to know about the intention of the complainant and therefore, in order to teach a lesson to the complainant they assaulted the complainant and with the help of a heated iron strip burnt the different parts of the body of the complainant. So far as the complaint averment is concerned, it is altogether on a different factual matrix. The complainant has stated that, on that particular day he was proceeding in front of the house of accused No.1 in order to go to his field, at that time a dog chased him and attempted to bite him. Therefore, when he was about to beat the dog with a stick then accused persons abruptly came there and tied the complainant to a telephone pole and assaulted him and in fact burnt his body with heated iron strip.\n 12. Looking to the above said factual aspects, the difference between the first information report filed before the Court and the complaint averments is only with reference to the prelude to the commission of the offence committed by the accused persons and not with regard to the actual commission of the offence by the accused persons. Therefore, in my opinion, the Sessions Judge has rightly come to the conclusion that when the Police report is already there before the Court and Court has already taken cognizance on the charge sheet filed by the Police and when the Court is inquiring into the truth and falsity of the entire dispute between the parties before him, there was no necessity to proceed with the private complaint. Therefore, it rightly dismissed the said private complaint as not maintainable.\n 13. The learned Sessions Judge also dismissed the said Special Case No.17/2004 on the ground that after amendment to Section 14 to the SC ST (POA) Act, the Special Court is the competent Court having jurisdiction to take cognizance and the cognizance taken by the learned Magistrate was bad in law. But the said observation by the learned Sessions Judge is not proper because of the simple reason the said complaint was filed by the complainant in C.C. No.493/2003 was in the month of February 2003, but the amendment came into force on 30.09.2003. Therefore, on the date of filing of the complaint, the Magistrate had got jurisdiction to take cognizance and commit the case to the Court of Sessions.\n 14. The legal implications with regard to a private complaint being filed and the Police Report is submitted on the same facts, what should be done by the Courts is also very well enunciated in a decision reported in Parmanand Sisodia Vs. Madhukar reported in 2002 Crl. L.J. 3640. The Madhya Pradesh High Court has held that : \"When a private complaint is filed, cognizance is taken, by that time FIR was also filed with Police, the Magistrate called the police report and charge sheet filed. The private complaint would be deemed to have been merged in police report, accused were discharged by this High Court in the appeal filed against framing of charges, question of permitting complainant to adduce additional evidence thereafter would not arise\".\n It is further stated in the said decision that : \"when the private complaint is deemed to be merged in the police report as envisaged under Section 210(2) of Criminal Procedure Code and in the said case the accused persons have already been discharged, the question of permitting the complainant to adduce evidence in the private complaint would nor arise\".\n If the above said principle is applied in this case, as I have already noted that the factual matrix regarding commission of the offence in both the cases are identical. The offences alleged against the accused are all identical, only the motive factor is different in the complainant and in Ex.P3. When both the parties had opportunity before the Sessions Court during trial in the report submitted by the Police after framing of the charges, in my opinion, there was no necessity for the Trial Court to provide any more opportunity to the complainant to proceed with the private complaint.\nConsequently, the private complaint virtually becomes redundant and liable to be dismissed as rightly done by the learned Sessions Judge. Therefore, there is no ground made out by the appellant in this case in order to set aside the order passed by the learned Sessions Judge so far it relates to Special SC ST C.C.\nNo.17/2004. Therefore, the Criminal Appeal No.\n2518/2012 consequently deserves to be dismissed.\n 15. Now, coming to the Criminal Appeal No.2517/2012 as I have already narrated that in this case the learned Sessions Judge after analysing the evidence of all the witnesses has observed that PW-2 has failed to give proper evidence supporting the contents of Ex.P3 filed by him and he has stated that he has not at all filed any report as per Ex.P3. He does not know the contents of Ex.P3, but his father has filed the report to the Police. But PW-4 father has stated in his evidence that his son filed a report before the Police.\nThe learned Sessions Judge observed that the evidence of PW-4 is silent about the overt-act of the accused on the date of the incident. Therefore, the testimony of PWs 2 and 3 having no consistency with each other and the other witnesses have in my opinion, totally turned hostile to the prosecution case no evidence corroborating the case of the prosecution nor established satisfactorily the alleged offences against the accused persons. Therefore, the learned Sessions Judge has acquitted the accused persons.\n 16. Now, in order to appreciate whether the observations made by the Sessions Court is proper or not, it is just and necessary to have brief look out the evidence of the prosecution witnesses.\n 17. PW-2 is not a relevant witness who has given only the Caste Certificate of the accused persons and as well as the PW-2. There is absolutely no allegations whatsoever in the evidence of PW-2 (appellant herein) that on that particular date the accused persons have abused him with any filthy language particularly referring to his caste. Therefore, there is no semblance of evidence in order to attract any provisions much less Section 3(i) (x) of SC ST (POA) Act. PW-2 has so far written the complaint narrated about the incident. I would like to discuss his evidence little later.\n 18. PW-4 is the father of the appellant. Let me see whether he is an eye witness to the incident. He deposed before the Court that, on that particular day of the incident one Shettevva came to his house at about 4.30 a.m. and informed that PW-2 was being assaulted by the accused with incriminating articles by tying him to a telephone pole with a plastic rope. Thereafter, himself and Dharmappa went to the spot and found PW-2 was tied to the telephone pole and PW-2 sustained burn injuries and all the accused persons were present at the spot and PW-2 was unconscious. Thereafter, PW-2 was taken to the Hospital. So, it clearly goes to show that this witness and Dharmappa were not eye witnesses to the incident. They never state any overt- acts of the accused persons. This witness also says that they called elderly person in the village and PW-3 came there and in fact advised the accused persons, but the accused persons did not listen to his words. In order to support this version, PW-3 was also examined, but he turned totally hostile to the prosecution case. He never supported to the prosecution case to any extent. PW-5 Dharmappa Talawar in fact also deposed to the same effect as that of PW-4. He has also not an eye witness to the incident. One Irappa Kurabar is the witness to the panchnama Ex.P7 under which the Police have seized MOs 1 to 3 from the spot. But there is no support from this witness also. Like that way PW-7 Irappa Alagawadi, who was examined as an eye witness to the incident and PW-8 Surappa Ambiger, PW-9 Mudakappa Bisinakoppa were also examined as eye witnesses to this incident. But none of them have supported the case of the prosecution.\n 19. PW-10 is the retired Dy. S.P. who investigated the same and submitted the charge sheet. There is no incriminating evidence available in the evidence of this witness against the accused persons. PW-11 Iranna Kulkarni is the person who actually recorded the statement of PW-2 in the Police Station as per Ex.P3, registered a case and sent the FIR to the Court as per Ex.P10 and thereafter, he sent the complainant to the Hospital for treatment. According to the complainant, this witness is the relative of accused persons, but in the evidence of PW-1 nothing is there to suggest that he is the relative of the accused persons. PW-2 in his evidence has stated that PW-11 is the relative of the accused persons, but except his bald statement which was denied during the course of cross-examination of the accused persons nothing is there to indicate that this Iranna Kulkarni is the relative of the accused persons. Mere saying that PW-11 is the relative of accused persons without proof and only for that reason a false first information has been prepared by PW-1 cannot be believed unless the said allegations made by PW-2 is established by cogent and convincing evidence satisfying the Court. Therefore, the said allegations remain as mere allegations without any proof.\n 20. PW-12 is the Doctor, of course he has supported the case of the prosecution and stated in his evidence that he has examined the complainant on 10.02.2003 at 3.00 a.m. and found the injuries on his person.\nAccording to PW-2 as stated by him in his complaint that the incident happened on 10.02.2003 at about 5.00 a.m. The evidence of the Doctor shows that the complainant stated before the Doctor that he sustained injuries with assault on 10.02.2003 at 3.00 a.m. The injury certificate Ex.P12 also discloses that PW-2 was examined on 10.02.2003 at 1.15 p.m. The document also shows that injuries said to have been caused on 10.02.2003 at 3.00 a.m. due to the assault. This discrepancy has not been satisfactorily explained. But this particular document Ex.P12 do not disclose the names of any of the accused persons. The complainant has never stated who actually assaulted him and caused injuries on him. The Doctor in his evidence also does not say that the complainant has disclosed the names of any of the accused persons as the assailants when he was treated in the Hospital. The time mentioned in the injury certificate and also stated by the Doctor is far far different from that of the time stated by PW-2 in his evidence. According to PW-2, the incident took place at 5.00 a.m. and even his father also says that the incident took place at 4.30 a.m. and the Doctor says that the complainant has stated before him that the incident took place at 3.00 a.m. Even Ex.P12 also it is mentioned as 3.00 a.m. Therefore, the Doctor's evidence shows that the complainant has sustained those injuries, but it is not helpful to come to a conclusion as to who actually caused such injuries.\nTherefore, I am only left with the evidence of PW-2, no other evidence is available in order to support the case of the prosecution that the accused persons have actually assaulted the injured and caused such injuries.\nIn this background, now let me consider the evidence of PW-2.\n 21. PW-2 though stated in his examination-in-chief that, on that particular day he was proceeding in front of the house of the accused No.1 and the accused persons have assaulted him and caused such injuries.\nBut nowhere in the examination-in-chief he has stated what was the motive or the reason for the accused persons abruptly coming there at about 5.00 a.m.\nduring the early hours and assault the complainant. It is not only the allegations of assault but it is specifically stated that the accused No.1 came with a heated iron bar and touched the different parts of the body of the complainant so as to cause burn injuries, whether there was so much of time to the accused person to go to his house and heat the iron rod and come and cause such injuries or whether the accused persons were earlier fully prepared to assault the complainant is not made known. The motive or the intention of the accused persons has not been specifically stated by PW-2 in his examination-in-chief. Though in the cross-examination, it is elicited that earlier to the incident the complainant PW-2 was knowing all the accused and the accused persons were not in good terms with the complainant, that too with regard to the feeding of the water from the channel to the agricultural lands of the complainant.\nBut this particular aspect should be taken with a pinch salt assault because of the reason the motive factor and the ill-will between the accused and the complainant would cut the case either of the prosecution or the defence. This motive or ill-will between the accused persons and the complainant has to be taken into consideration with other surrounding circumstances and other corroborative materials on record. Of course, if the prosecution is able to produce sufficient materials to corroborate the evidence of the injured PW-2 then this particular ill-will could have been taken for the purpose of holding that the accused persons because of their ill-will and vengeance committed such an offence against PW-2. If the prosecution fails to establish the case with corroborative materials in order to prove the allegations made against the accused persons this particular motive or ill-will between the accused and the complainant definitely would cut the root of the prosecution case itself, because it can be either way inferred by the Court because of the ill-will and hatred between the accused and the complainant perhaps there is chances of foisting a false case against the accused persons. In view of the above said factual aspects, I am of the opinion, the evidence of PW-2 alone cannot be relied upon for the purpose of drawing any inference that the prosecution has proved the case beyond reasonable doubt.\n 22. The Police have submitted the charge sheet on the basis of the FIR as per Ex.P3. According to PW-2, he never given any such information to the Police. PW-11 who is the Police Officer who is a public servant, he has categorically stated that, on that particular date the complainant himself went to the Police Station and gave oral complaint and PW-11 has reduced the same into writing and it was read over and after knowing the contents PW-2 has affixed his LTM.\n 23. The learned Counsel contends that PW-2 knows signing (putting his signature) he is not a LTM.\nTherefore, no occasion for PW-1 to take LTM of this PW- 2 contrary to his submission. If we read the evidence of PW-2, it clearly discloses that PW-2 has deposed that due to the injuries sustained by him he became unconscious and he gained his consciousness in KIMS Hospital, Hubli and Naragund Police went there and obtained his LTM on a complaint. But they did not entertain his complaint. So, himself clearly disclosed that he has put his LTM on a report. It is not his case that, he has given some other report to Police other than Ex.P3 to the Police. According to him, he has filed a private complaint before the Court. He further deposed that his father has filed a report before the Naragund Police Station. The evidence of PW-11 so far as this aspect is concerned, the father of PW-2 he stated that on that particular date of incident the accused were advised by elders of the village, but the accused did not listen on the spot, then he went to Naragund Police Station, narrated the incident orally and the same was reduced into writing. He never states that his son PW-2 was not with him on that particular date. PW-2 says that his father actually came to the spot and took him to the Hospital and in the KIMS Hospital he gained consciousness. Therefore, after the incident his father was throughout with PW-2 till he was admitted to the hospital. Therefore, it becomes doubtful circumstances as stated by PW-11 whether PWs 2 and 4 went to the Police Station and lodged the FIR as per Ex.P3. The conduct of PW-11 being the public servant as Police Officer cannot be unnecessarily doubted he has discharged his duty in accordance with law and after recording the statement of PW-2 he must have registered the case.\n 24. The motive attributed to the accused persons and the circumstances narrated in Ex.P3, in my opinion, little bit relevant to consider the attitude of PW-2. As per the evidence of PW-2, he has stated that he was proceeding in front of the house of the accused No.1 and all the accused abruptly came there and assaulted him without any reason. But in Ex.P3 it is categorically stated by PW-2 that, on that particular day of the incident in the early hours at about 4.00 a.m. he went to the house of the accused No.1 in order to have illicit sexual act with the wife of the accused No.1 and in that context the accused No.1 and other accused persons who were there near the house at that particular point of time, they came little later and found the complainant near their house attempting to gain wrongful entry into the house and thereafter, the accused persons have assaulted the complainant. So in order to ward-off this particular attitude of PW-2 in going to the house of accused No.1 to have illicit sexual act with the wife of the accused No.1, perhaps he must have changed his version and filed a private complaint before the Magistrate. Even assault by the accused persons for a moment is accepted, perhaps the accused might have assaulted with other persons in order to teach a lesson to the complainant. Because according to his own admission, he has gone there to have illicit sexual act with the wife of the accused No.2. Therefore, the two versions stated by the complainant in Ex.P3 and in the private complaint make totally the case of the complainant doubtful. Therefore, when a serious doubt is created in the mind of the Court, the evidence of PW-2 cannot be made as a sole basis for convicting the accused persons. Therefore, I don't find any strong reasons to interfere with the judgment of acquittal recorded by the Trial Court.\n 25. Moreover, the Apex Court in a decision reported in 2013 (1) Kar.L.J. 591 SC between Govindaraju alias Govinda Vs. State by Sriramapuram P.S. and another has laid down certain principles as to under what circumstance the Appellate Court could interfere with the judgment of acquittal recorded by the Trial Court i.e. to say : \"The Appellate Court can interfere with the judgment of acquittal but normally should not substitute its views unless it records the reasons that findings recorded by the Lower Court are erroneous, contrary to the settled principles of criminal law and the judgment of acquittal is perverse on facts or law\".\n 26. In view of the above said factual matrix and also the circumstances of the case and the above said decision, I am of the opinion, the Judgment of the Trial Court is neither illegal nor capricious so as to interfere with the same. Hence, both the appeals also deserve to be dismissed.\n 27. Accordingly, the appeal preferred by the appellant in Criminal Appeal Nos. 2518/2012 and 2517/2012 are hereby dismissed.\n As this Court has considered the case on merits, the delay in preferring the Crl.A. No. 2518/2012 is hereby condoned and accordingly, I.A. No.1 in Crl. A.\nNo.2518/2012 is disposed of.\n Sd/- JUDGE Rbv "
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"text": " IN THE HIGH COURT OF KARNATAKA AT\n BENGALURU\n\n DATED THIS THE 31ST DAY OF MARCH 2015\n\n BEFORE\n\n THE HON'BLE MR. JUSTICE BUDIHAL. R.B\n\n CRIMINAL APPEAL NO.718/2013\n C/W\n\n CRIMINAL APPEAL NO.728/2013\n\nIN CRIMINAL APPEAL NO.718/2013\n\nBETWEEN:\n\nSri Laxman Poojary .. APPELLANT\nAged 39 years\nS/o Dadu Poojary\nR/at Puthilakaje\nMudukodi Village and Post\nBelthangady Taluk.\n\n(By Sri. S K Venkata Reddy, Adv.)\n\nAND:\n\nThe State represented by ..RESPONDENT\nThe Police Inspector\nNDC, COD,\nBangalore.\n(Represented by the learned\nState Public Prosecutor\nHigh Court of Karnataka\nBangalore)\n\n(By Sri. Chetan Desai, HCGP)"
}
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{
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"id": "a65d30fef3d548aea5a7ec4d44229166",
"to_name": "text",
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"end": 1556,
"labels": [
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],
"start": 754,
"text": "IN CRIMINAL APPEAL NO.728/2013\n\nBETWEEN:\n\nSri Dinesh @ Harish Devadiga .. APPELLANT\nS/o Late Sankappa Devadiga\nAged 32 years\nDriver\nR/at Hosamane\nKathody Bailu\nVenoor Village\nBelthangady Taluk-574 214.\n\n(By Sri. Vinod Kumar M, Adv.)\n\nAND:\n\nState of Karnataka ..RESPONDENT\nRepresented by Inspector\nNarcotic Drugs Cell\nCOD\nCarlton Bhavan\nPalace Bhavan\nBangalore-560 001.\n\n(By Sri. Chetan Desai, HCGP)\n\n These Criminal Appeals are filed under Section 374(2) CR.P.C\npraying to set aside the Judgment of conviction dated 11/12.07.2013\npassed by the Prl. S.J., D.K., Mangalore in Spl.C.No.8/2009 \nconvicting the appellant/accused for the offence punishable under\nSection 8(c) read with Section 20(b)(ii)(c) of Narcotic Drugs and\nPsychotropic Substances Act, 1985 and etc.\n\n "
}
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{
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"id": "08d183ca59ee448a9b9c265e76635ea4",
"to_name": "text",
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"end": 1748,
"labels": [
"PREAMBLE"
],
"start": 1556,
"text": "These Criminal Appeals having been heard and reserved for\njudgment, coming on for pronouncement of judgment this day, the\nCourt delivered the following:\n\n JUDGMENT"
}
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{
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"end": 1993,
"labels": [
"FAC"
],
"start": 1748,
"text": "\n Since these two appeals are arising out of the common judgment passed by the trial Court and since common questions of fact and law are involved in these two appeals, they have been taken together to dispose of them by a common judgment."
}
},
{
"from_name": "label",
"id": "560bf72fba2745d3a101853ac32174e7",
"to_name": "text",
"type": "labels",
"value": {
"end": 2106,
"labels": [
"NONE"
],
"start": 1995,
"text": "2. Criminal Appeal No.718/2013 is preferred by Accused No.1 and Crl.A.No.728/2013 is preferred by accused No.2."
}
},
{
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"id": "d8675c1f2a88427fab3c489cccf559aa",
"to_name": "text",
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"value": {
"end": 2647,
"labels": [
"RLC"
],
"start": 2106,
"text": "\n 3. The appellants-accused Nos.1 and 2 have preferred these appeals being aggrieved by the judgment of conviction dated 11.7.2013 passed by the Principal Sessions and Special Judge, Dakshina Kannada, Mangalore in Spl.Case No.8/2009 holding appellants guilty of the offences punishable under Section 8(c) r/w Section 20(b)(ii)(c) of NDPS Act, 1985 and the order of sentence dated 12.7.2013 imposing rigorous imprisonment for ten years and to pay a fine of Rs.1 lakh each and in default, to undergo further rigorous imprisonment for one year."
}
},
{
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"id": "eef57ecbc14a4a408633fa2787426443",
"to_name": "text",
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"value": {
"end": 2790,
"labels": [
"FAC"
],
"start": 2648,
"text": "They have challenged the validity and correctness of the order of trial Court on the grounds mentioned in their respective appeal memorandums."
}
},
{
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"id": "be2ad73dce404819b16243a2d40de4b6",
"to_name": "text",
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"value": {
"end": 3321,
"labels": [
"FAC"
],
"start": 2790,
"text": "\n 4. The case of the prosecution in brief before the trial Court is that the Inspector of Police, Narcotic Drugs Cell, COD., Bangalore has lodged the complaint dated 6.8.2008 addressing to the Police Sub-Inspector, Venoor police station, Belthangady Taluk stating that on 5.8.2008 at 16.00 hours when he was in the COD office, his informant informed that on 6.8.2008 one Lakshman Poojary of Mudukodi village will be carring ganja illegally in his Maruti van for the purpose of sale and if complainant comes, he would show the same."
}
},
{
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"id": "3aa3cf6dc86742dc861f90eaeb5925b5",
"to_name": "text",
"type": "labels",
"value": {
"end": 3670,
"labels": [
"FAC"
],
"start": 3322,
"text": "Immediately, he informed the same to his higher officers and after obtaining their permission during night on the same day he left Bangalore to Mangalore along with Head constable Devaraju and went to COD Office at Mangalore and with the staff therein they proceeded in the jeep bearing No.KA01-G-4241 and came to Mudukodi village and were waiting."
}
},
{
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"id": "212fd6735d3a45b08dca1ccb9d3bddd0",
"to_name": "text",
"type": "labels",
"value": {
"end": 4042,
"labels": [
"FAC"
],
"start": 3671,
"text": "At that time, informant took the complainant, his staff and also the panchas to the mud road situate on the eastern side of the tar road of Venoor towards Mudukodi and shown them one white colour maruti van and told that it contains ganja bags and the said van belongs to Laxman Poojary and to help Lakshman Poojary one Dinesh @ Harish is also with him in his motorcycle."
}
},
{
"from_name": "label",
"id": "8f63ba56d5524c39a318c89d723a7ba1",
"to_name": "text",
"type": "labels",
"value": {
"end": 4145,
"labels": [
"FAC"
],
"start": 4043,
"text": "Immediately the complainant with his staff in the presence of panch witnesses surrounded the said van."
}
},
{
"from_name": "label",
"id": "02ce8d7ec86147f0bcd7a9df61ff34f6",
"to_name": "text",
"type": "labels",
"value": {
"end": 4268,
"labels": [
"FAC"
],
"start": 4146,
"text": "Two persons were sitting in the van and after seeing the complainant and his staff, those two persons jumped and ran away."
}
},
{
"from_name": "label",
"id": "651040d3d44248fd8e9ec5d1b2da9c37",
"to_name": "text",
"type": "labels",
"value": {
"end": 4340,
"labels": [
"FAC"
],
"start": 4269,
"text": "Though the complainant made an effort to chase them he did not succeed."
}
},
{
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"id": "35cf3b6b5d114ec2afb9e294ef2f3c48",
"to_name": "text",
"type": "labels",
"value": {
"end": 4465,
"labels": [
"FAC"
],
"start": 4340,
"text": "\nIn the van there were 18 polythene bags and when weighed 17 bags contained 10 kgs each of ganja and one bag contained 5 kgs."
}
},
{
"from_name": "label",
"id": "43151986ed95466699e1c41a1fd3c93b",
"to_name": "text",
"type": "labels",
"value": {
"end": 4474,
"labels": [
"FAC"
],
"start": 4465,
"text": "\nof ganja"
}
},
{
"from_name": "label",
"id": "47412ba21d3b43ff869841a94270f38a",
"to_name": "text",
"type": "labels",
"value": {
"end": 4703,
"labels": [
"FAC"
],
"start": 4475,
"text": "The value of the ganja was Rs.21 lakhs and the maruti van bearing No.KA-19-M-4775 was worth Rs.1,50,000/- and the motorcycle bearing No.KA-19-H-3703 was worth Rs.30,000/- and in total all the materials were worth Rs.22,80,000/-."
}
},
{
"from_name": "label",
"id": "9e9886a1925b4c469f2dccbb633e57b1",
"to_name": "text",
"type": "labels",
"value": {
"end": 4944,
"labels": [
"FAC"
],
"start": 4704,
"text": "They were seized in the presence of panch witnesses under seizure mahazar conducted from 15 to 18 hours and on the basis of same, case came to be registered under Section 20(b) of the NDPS Act and further investigation was entrusted to COD."
}
},
{
"from_name": "label",
"id": "83c818a3daec4f27b8f8f83088059163",
"to_name": "text",
"type": "labels",
"value": {
"end": 4976,
"labels": [
"FAC"
],
"start": 4944,
"text": "\n Panchanama was also conducted."
}
},
{
"from_name": "label",
"id": "4696734cb90e477ab4c1b4acf762c29d",
"to_name": "text",
"type": "labels",
"value": {
"end": 5067,
"labels": [
"FAC"
],
"start": 4977,
"text": "Although efforts were made to search the absconding accused persons, they were not traced."
}
},
{
"from_name": "label",
"id": "fc4584ff303446aeb97de1af28cefb87",
"to_name": "text",
"type": "labels",
"value": {
"end": 5255,
"labels": [
"FAC"
],
"start": 5068,
"text": "On the basis of the said complaint, case was registered in Venoor police station Crime No.52/2008 for the alleged offences under Section 20(b) of the NDPS Act against accused Nos.1 and 2."
}
},
{
"from_name": "label",
"id": "de7d3618253c40d3bfab4fc405558cc4",
"to_name": "text",
"type": "labels",
"value": {
"end": 5502,
"labels": [
"RLC"
],
"start": 5256,
"text": "The trial Court, after conclusion of trial and after appreciating the oral and documentary evidence placed on record, has ultimately convicted accused Nos.1 and 2 for the offences under Section 8(c) r/w Section 20(b)(ii)(c) of the NDPS Act, 1985."
}
},
{
"from_name": "label",
"id": "368d96ae7451431e804ce370162c8671",
"to_name": "text",
"type": "labels",
"value": {
"end": 5721,
"labels": [
"FAC"
],
"start": 5503,
"text": "Being aggrieved by the judgment and order of conviction passed by the trial Court and also challenging the legality and correctness of the said judgment, appellants-accused Nos.1 and 2 have preferred the above appeals."
}
},
{
"from_name": "label",
"id": "c5636bf48cdd4d97a426bc73ba87ca61",
"to_name": "text",
"type": "labels",
"value": {
"end": 5823,
"labels": [
"NONE"
],
"start": 5721,
"text": "\n 5. Heard the arguments of learned counsel appearing for appellant-accused No.2 in Crl.A.No.728/2013."
}
},
{
"from_name": "label",
"id": "1a0555c13afc4f1b854de9564ff49331",
"to_name": "text",
"type": "labels",
"value": {
"end": 5983,
"labels": [
"ARG_PETITIONER"
],
"start": 5824,
"text": "Learned counsel has submitted that accused No.2 was not at the spot and only on the say of the informant he has been arrayed as one of the accused in the case."
}
},
{
"from_name": "label",
"id": "8a4278bf94ab4027aaa4eaefa59cf593",
"to_name": "text",
"type": "labels",
"value": {
"end": 6110,
"labels": [
"ARG_PETITIONER"
],
"start": 5984,
"text": "Learned counsel also submitted that the informant is not cited as witness and Section 42 of the NDPS Act is not complied with."
}
},
{
"from_name": "label",
"id": "42bb18bf35c9414a984a7c11587fec65",
"to_name": "text",
"type": "labels",
"value": {
"end": 6235,
"labels": [
"ARG_PETITIONER"
],
"start": 6111,
"text": "The complainant himself has investigated the matter and filed the charge sheet, which is illegal and not sustainable in law."
}
},
{
"from_name": "label",
"id": "48c44488e28b4630b8ab2d4ede186deb",
"to_name": "text",
"type": "labels",
"value": {
"end": 6347,
"labels": [
"ARG_PETITIONER"
],
"start": 6236,
"text": "It is also further submitted that FSL officer is not examined in the case and the material seized is not ganja."
}
},
{
"from_name": "label",
"id": "5693bb6b078244178a2b31ada6ef2ee6",
"to_name": "text",
"type": "labels",
"value": {
"end": 6498,
"labels": [
"ARG_PETITIONER"
],
"start": 6348,
"text": "It is also submitted that the oral and documentary evidence produced before the trial Court does not make out a prima facie case against accused No.2."
}
},
{
"from_name": "label",
"id": "7803b3bde5014089b38667b92ac9166e",
"to_name": "text",
"type": "labels",
"value": {
"end": 6570,
"labels": [
"ARG_PETITIONER"
],
"start": 6499,
"text": "Hence, he has submitted to allow the appeal and to acquit accused No.2."
}
},
{
"from_name": "label",
"id": "31cf64e7771d49fb81543ec57cbd5ab6",
"to_name": "text",
"type": "labels",
"value": {
"end": 6965,
"labels": [
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],
"start": 6571,
"text": "In support of his arguments learned counsel for appellant-accused No.2 has relied upon the following decisions: 1. 2013 (2) SCC 502 (Kishan Chand Vs. State of Haryana) 2. 2010 15 SCC 111(Central Bureau of Narcotics Vs. Bahadur Singh) 3. 2011 5 SCC 123 (Ashok @ Dangra Jaiswal Vs. State of Madhya Pradesh) 4. 2010 15 SCC 369 (State by Inspector of Police, NIB, Madurai, Tamil Nadu Vs. Rajangam)."
}
},
{
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"id": "326d3c8e249c497c9f8dc1e292fffd4f",
"to_name": "text",
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"value": {
"end": 7201,
"labels": [
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],
"start": 6966,
"text": "5. 2008 SCC 2 370 (Directorate of Revenue and another Vs.\nMohammed Nisar Holia) 6. 1982 1 SCC 700 (Mohanlal Gangaram Gehani Vs. State of Maharashtra) 7. 2009 9 SCC 709 (Ramesh Chnadra Agrawal Vs. Regency Hospital Limited and Others) 6."
}
},
{
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"id": "f72a396f0c2246b2b7a218a183a162c2",
"to_name": "text",
"type": "labels",
"value": {
"end": 7353,
"labels": [
"ARG_PETITIONER"
],
"start": 7202,
"text": "Learned counsel appearing for appellant-Accused No.1 in Crl.A.No.718/2013 submitted that complainant himself is the investigating officer in this case."
}
},
{
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"id": "9514a1d0691f4e3c91b2a67b8a005911",
"to_name": "text",
"type": "labels",
"value": {
"end": 7439,
"labels": [
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],
"start": 7354,
"text": "No test identification parade is conducted to establish the identity of Accused No.1."
}
},
{
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"id": "7904f75eff8b4d8ab440ffd4162e0e1b",
"to_name": "text",
"type": "labels",
"value": {
"end": 7558,
"labels": [
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],
"start": 7440,
"text": "He has also submitted that P.W.1 who is the independent witness turned hostile and not supported the prosecution case."
}
},
{
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"id": "210b73a7f91c41428cdcce2c55a77841",
"to_name": "text",
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"value": {
"end": 7623,
"labels": [
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],
"start": 7559,
"text": "It is also his submission ganja is not seized from the vehicles."
}
},
{
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"id": "235a38972be14d66a08fc512eb67213c",
"to_name": "text",
"type": "labels",
"value": {
"end": 7711,
"labels": [
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],
"start": 7624,
"text": "With regard to the alleged information Section 42 of the NDPS Act is not complied with."
}
},
{
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"id": "01bb5bd9d256417bb69d932e7b77305c",
"to_name": "text",
"type": "labels",
"value": {
"end": 7803,
"labels": [
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],
"start": 7712,
"text": "There is no evidence on the prosecution side that the ganja was taken out from the vehicle."
}
},
{
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"id": "2a1d49599c2241d7a32f122be50ecae0",
"to_name": "text",
"type": "labels",
"value": {
"end": 7930,
"labels": [
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],
"start": 7804,
"text": "He has also submitted that accused were not known to prosecution witnesses and hence test identification parade was necessary."
}
},
{
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"id": "117253b289d940bcad7c49bee5e8f09f",
"to_name": "text",
"type": "labels",
"value": {
"end": 8053,
"labels": [
"ARG_PETITIONER"
],
"start": 7931,
"text": "The trial Court without appreciating the oral as well as documentary evidence properly has wrongly convicted Accused No.1."
}
},
{
"from_name": "label",
"id": "b03ae35ca9c84bf19955ef7af37a5ec5",
"to_name": "text",
"type": "labels",
"value": {
"end": 8126,
"labels": [
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],
"start": 8054,
"text": "As such, order of the trial Court is illegal and not sustainable in law."
}
},
{
"from_name": "label",
"id": "a8da688134da4c919ca7574daace9154",
"to_name": "text",
"type": "labels",
"value": {
"end": 8252,
"labels": [
"ARG_PETITIONER"
],
"start": 8127,
"text": "Hence, it is submitted to allow the appeal and to acquit Accused No.1 by setting aside judgment and order of the trial Court."
}
},
{
"from_name": "label",
"id": "6e1eb11943044970b9d97ba3f3908490",
"to_name": "text",
"type": "labels",
"value": {
"end": 8617,
"labels": [
"ARG_PETITIONER"
],
"start": 8253,
"text": "In support of his arguments learned counsel for appellant-Accused No.1 has relied upon the following decisions: i. (2002) 7 SCC 419 (Avtar Singh and Others Vs. State of Punjab) ii. (2002) 15 SCC 369 (State by Inspector of Police, Narcotic Intelligence Bureau, Madurai, Tamil Nadu Vs. Rajangam) iii. (2010) 15 SCC 111 (Central Bureau of Narcotics Vs. Bahadur Singh)"
}
},
{
"from_name": "label",
"id": "e0547756acbd4944ad6373fa369d9047",
"to_name": "text",
"type": "labels",
"value": {
"end": 8744,
"labels": [
"ARG_RESPONDENT"
],
"start": 8617,
"text": " 7. Learned SPP during the course of his arguments submitted that Ex.P1 has been proved with cogent and satisfactory materials."
}
},
{
"from_name": "label",
"id": "25643e3d47fa4e4ca3e13d0fd29268d5",
"to_name": "text",
"type": "labels",
"value": {
"end": 8838,
"labels": [
"ARG_RESPONDENT"
],
"start": 8745,
"text": "The evidence of P.W.2 in the cross- examination clearly establishes identity of Accused No.1."
}
},
{
"from_name": "label",
"id": "9c5eb2bd4a9547c8bbb45d24e3ebee6a",
"to_name": "text",
"type": "labels",
"value": {
"end": 8982,
"labels": [
"ARG_RESPONDENT"
],
"start": 8839,
"text": "It is also submitted that the document Ex.P21 produced during the course of trial shows that Section 42 of the NDPS Act has been complied with."
}
},
{
"from_name": "label",
"id": "5eeed137644f4912b3e5ea8f45a0d007",
"to_name": "text",
"type": "labels",
"value": {
"end": 9164,
"labels": [
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],
"start": 8983,
"text": "Looking to the oral evidence of prosecution witnesses and the documents produced in the case, the prosecution has proved recovery of ganja from the vehicle belonging to the accused."
}
},
{
"from_name": "label",
"id": "b87a2d12c6964caabd4780acca279200",
"to_name": "text",
"type": "labels",
"value": {
"end": 9354,
"labels": [
"ARG_RESPONDENT"
],
"start": 9165,
"text": "It is also his submission that during the course of cross-examination of P.W.6, no suggestion has been made that the information received at the first instance was not reduced into writing."
}
},
{
"from_name": "label",
"id": "fb3a2955c7134f66945542712edf76f6",
"to_name": "text",
"type": "labels",
"value": {
"end": 9479,
"labels": [
"ARG_RESPONDENT"
],
"start": 9355,
"text": "The accused have to establish what is the prejudice caused to them if the information received was not reduced into writing."
}
},
{
"from_name": "label",
"id": "4cd1e934c9b4458a86fc59cc49bfdfcc",
"to_name": "text",
"type": "labels",
"value": {
"end": 9617,
"labels": [
"ARG_RESPONDENT"
],
"start": 9480,
"text": "There is no merit in the contention of the accused that Section 42 of the NDPS Act was not complied with and it vitiates the proceedings."
}
},
{
"from_name": "label",
"id": "0e6b9b925c804c6882d3aebe9c2c9ed4",
"to_name": "text",
"type": "labels",
"value": {
"end": 9767,
"labels": [
"ARG_RESPONDENT"
],
"start": 9618,
"text": "The trial Court has properly considered both oral and documentary materials placed on record and rightly convicted the accused for the said offences."
}
},
{
"from_name": "label",
"id": "842fb844e8fd404abff9043a6d41e004",
"to_name": "text",
"type": "labels",
"value": {
"end": 9875,
"labels": [
"ARG_RESPONDENT"
],
"start": 9768,
"text": "No illegality has been committed and hence, there is no merit in the appeals and the same may be dismissed."
}
},
{
"from_name": "label",
"id": "8e3d6eeded834573ae0e64e93d83ba9c",
"to_name": "text",
"type": "labels",
"value": {
"end": 9988,
"labels": [
"ANALYSIS"
],
"start": 9875,
"text": "\n 8. I have perused the oral evidence of PWs-1 to 6 documents Exs. P-1 to P-28 and material objects M.Os.1 to 18."
}
},
{
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"id": "8c8c1c2d59a344988be7dbc2aeb85f61",
"to_name": "text",
"type": "labels",
"value": {
"end": 10063,
"labels": [
"ANALYSIS"
],
"start": 9988,
"text": "\nLet me refer to relevant portion in the evidence of prosecution witnesses."
}
},
{
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"id": "dd87f8889dd04dd79185e65907e00c7b",
"to_name": "text",
"type": "labels",
"value": {
"end": 10239,
"labels": [
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],
"start": 10063,
"text": "\n 9. PW-1/Mohan deposed in his evidence in the examination in chief that about 3 years back along with cw-1 and other, he went in their jeep to Venoor village in the afternoon."
}
},
{
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"id": "172f9fcbfff9493bbf4575c7bfd079c9",
"to_name": "text",
"type": "labels",
"value": {
"end": 10355,
"labels": [
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],
"start": 10239,
"text": "\nThere, they went to the house, where the Police have picked up the bags and transported them to the police station."
}
},
{
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"id": "e9bd3d972e64486f899df0a5d4f6c161",
"to_name": "text",
"type": "labels",
"value": {
"end": 10388,
"labels": [
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],
"start": 10356,
"text": "Said bags were containing ganja."
}
},
{
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"id": "700eb98a55354e0bacce11417a974b83",
"to_name": "text",
"type": "labels",
"value": {
"end": 10487,
"labels": [
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],
"start": 10389,
"text": "To the above effect writings, were made in the police station and he has signed the said document."
}
},
{
"from_name": "label",
"id": "5364719a4d824a6590bb2d700fc134f9",
"to_name": "text",
"type": "labels",
"value": {
"end": 10535,
"labels": [
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],
"start": 10487,
"text": "\nDocument is Ex.P-1 and his signature is P-1(a)."
}
},
{
"from_name": "label",
"id": "18d4f37fc77445929bed5a792deedda1",
"to_name": "text",
"type": "labels",
"value": {
"end": 10663,
"labels": [
"ANALYSIS"
],
"start": 10536,
"text": "They have not witnessed the arrival of white Maruthi Omni along with motor cycle from Moodukodi Village side at about 2.30 p.m."
}
},
{
"from_name": "label",
"id": "753f1e2a8b714ce8a7b814c3b464135a",
"to_name": "text",
"type": "labels",
"value": {
"end": 10832,
"labels": [
"ANALYSIS"
],
"start": 10664,
"text": "He has not witnessed if the motorcyclists got down from his vehicle and was speaking to the driver of Maruti Omni van and at that time the police have apprehended them."
}
},
{
"from_name": "label",
"id": "e7e0ed589d3f4406b094b66b731c8362",
"to_name": "text",
"type": "labels",
"value": {
"end": 10903,
"labels": [
"ANALYSIS"
],
"start": 10833,
"text": "He has not seen the present accused, who are present before the Court."
}
},
{
"from_name": "label",
"id": "c6d9e2c65f154d43978e599ba4ed15fa",
"to_name": "text",
"type": "labels",
"value": {
"end": 10986,
"labels": [
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],
"start": 10904,
"text": "He has not seen if there were 18 bags containing the ganja in the said Maruti van."
}
},
{
"from_name": "label",
"id": "b3568417878343e8ba69569249704279",
"to_name": "text",
"type": "labels",
"value": {
"end": 11030,
"labels": [
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],
"start": 10987,
"text": "The said ganja was not weighed in the spot."
}
},
{
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"id": "54cc76aa645444c5a298cdece6f89cec",
"to_name": "text",
"type": "labels",
"value": {
"end": 11081,
"labels": [
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],
"start": 11031,
"text": "However, seals were affixed in the police station."
}
},
{
"from_name": "label",
"id": "0ba0fe2867934fa58420308f7fd2dbfc",
"to_name": "text",
"type": "labels",
"value": {
"end": 11179,
"labels": [
"ANALYSIS"
],
"start": 11082,
"text": "His statement was not recorded by the Investigation Officer in connection with the said incident."
}
},
{
"from_name": "label",
"id": "b55853091be8405fa1bbd6a047a8d9c5",
"to_name": "text",
"type": "labels",
"value": {
"end": 11298,
"labels": [
"ANALYSIS"
],
"start": 11180,
"text": "As the witness has not supported the case of prosecution, with the permission of the court, he got treated as hostile."
}
},
{
"from_name": "label",
"id": "446f9c36207d45a59c02e5e5460f5bb9",
"to_name": "text",
"type": "labels",
"value": {
"end": 11530,
"labels": [
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],
"start": 11298,
"text": "\n 10. When cross examined by the P.P., PW1 denied all the suggestions put to him about the case of prosecution and the seizure of 18 ganja bags from the white Maruti Omni vehicle and conducting the mahazar at the spot as per Ex.P-1."
}
},
{
"from_name": "label",
"id": "542a3421d86c4ffca1c38a556cafc77e",
"to_name": "text",
"type": "labels",
"value": {
"end": 11736,
"labels": [
"ANALYSIS"
],
"start": 11531,
"text": "He has also denied the suggestion that 17 bags are containing 10 kg of ganja and one bag containing 5 kg of ganja and totally 175 kg and 50 grams of ganja was taken from each bag for the purpose of sample."
}
},
{
"from_name": "label",
"id": "aa626e83a3ae412eb16c4379d13c00f2",
"to_name": "text",
"type": "labels",
"value": {
"end": 11881,
"labels": [
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],
"start": 11737,
"text": "He also denied the suggestion that regarding the seizure of ganja he has given detailed statement before the police on 06.08.2008 as per Ex.P10."
}
},
{
"from_name": "label",
"id": "04a3dd2aeaf740da8140419c456a89d4",
"to_name": "text",
"type": "labels",
"value": {
"end": 12271,
"labels": [
"ANALYSIS"
],
"start": 11882,
"text": "He denied the further suggestion that thereafter, on 06.01.2009 he gave further statement after identifying accused Nos.1 and 2 in the COD office at Mangalore as per Ex.P-11.\n 11. PW-2/M. Umesh Shetty, ASI, Punjalkatte P.S. has deposed in his evidence in the examination in chief that during the month of August 2008, he was working as head Constable in Narcotic Drugs Cell, COD Mangalore."
}
},
{
"from_name": "label",
"id": "76529c4952f4489fb876b47a9fcbfec2",
"to_name": "text",
"type": "labels",
"value": {
"end": 12346,
"labels": [
"ANALYSIS"
],
"start": 12272,
"text": "At that time, Sri. M H Umesh/C.W-1 was the police Inspector of their unit."
}
},
{
"from_name": "label",
"id": "67c466c30790441cbee34f69c1eb5820",
"to_name": "text",
"type": "labels",
"value": {
"end": 12632,
"labels": [
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],
"start": 12347,
"text": "On 05.08.2008 when he was in the office, CW-1 informed him at 5.30 p.m. from Bangalore, that accused No.1 is making preparations for the sale of Ganja at Moodukodi village and also asked them to be ready for conducting the raid on 06.08.2008 as accused No.1 was trying to transport it."
}
},
{
"from_name": "label",
"id": "8419f5657a2a4444b11b10c0202ec43d",
"to_name": "text",
"type": "labels",
"value": {
"end": 12793,
"labels": [
"ANALYSIS"
],
"start": 12633,
"text": "He further told that he has taken permission from the Dy.S.P. of NDC in writing and leaving Bangalore during the night and he came to the office in the Morning."
}
},
{
"from_name": "label",
"id": "d2c89703e08344e2a4288e8b51852964",
"to_name": "text",
"type": "labels",
"value": {
"end": 12863,
"labels": [
"ANALYSIS"
],
"start": 12794,
"text": "Therefore, they kept their departmental jeep ready for the said raid."
}
},
{
"from_name": "label",
"id": "0745bbf6510040c187ff20e0fac942b4",
"to_name": "text",
"type": "labels",
"value": {
"end": 12971,
"labels": [
"ANALYSIS"
],
"start": 12864,
"text": "On 06.08.2008, CW-1/M.H.Umesh came along with Devaraj, Head Constable/CW-7, who was brought from Bangalore."
}
},
{
"from_name": "label",
"id": "a5a841109845481180cd17715b2cd79c",
"to_name": "text",
"type": "labels",
"value": {
"end": 13176,
"labels": [
"ANALYSIS"
],
"start": 12972,
"text": "At that time, they had also secured Panchas and they were introduced to CWs-1 and 7 and also to the other police officials and requested them to act as panchas and notices were also issued in that regard."
}
},
{
"from_name": "label",
"id": "d3bdde83008940a7b1daf773da802a9c",
"to_name": "text",
"type": "labels",
"value": {
"end": 13318,
"labels": [
"ANALYSIS"
],
"start": 13177,
"text": "Thereafter, on 06.08.2008 at about 11.30 a.m. along with CW-1/M.H.Umesh, panchas, CW-7 and others left the office in their departmental jeep."
}
},
{
"from_name": "label",
"id": "ae39aaf4201746238278d806abcaf099",
"to_name": "text",
"type": "labels",
"value": {
"end": 13406,
"labels": [
"ANALYSIS"
],
"start": 13319,
"text": "Thereafter, at about 2.30 p.m they reached near Moodukodi village of Belthangady Taluk."
}
},
{
"from_name": "label",
"id": "fa0be7ff684f4b868ff239630bf55fcb",
"to_name": "text",
"type": "labels",
"value": {
"end": 13520,
"labels": [
"ANALYSIS"
],
"start": 13407,
"text": "In the mean while, one white Maruti Omni van was coming on the mud road followed by one black Yamaha motor cycle."
}
},
{
"from_name": "label",
"id": "ae53bcf4eb324e878546706da1ba4222",
"to_name": "text",
"type": "labels",
"value": {
"end": 13564,
"labels": [
"ANALYSIS"
],
"start": 13521,
"text": "Maruthi Omni van was stopped by its driver."
}
},
{
"from_name": "label",
"id": "44705fffc450483c8f6b1c8f35f7924b",
"to_name": "text",
"type": "labels",
"value": {
"end": 13647,
"labels": [
"ANALYSIS"
],
"start": 13564,
"text": "\nThereafter, the rider of motor bike has also stopped his vehicle in the hind side."
}
},
{
"from_name": "label",
"id": "3dc16cd5c14046e488e4b386ea0521be",
"to_name": "text",
"type": "labels",
"value": {
"end": 13744,
"labels": [
"ANALYSIS"
],
"start": 13648,
"text": "Thereafter rider of motorcycle came to Maruti Omni van and sat in the front seat of the vehicle."
}
},
{
"from_name": "label",
"id": "429323e7d6c14c349e19c91d9421e79a",
"to_name": "text",
"type": "labels",
"value": {
"end": 13905,
"labels": [
"ANALYSIS"
],
"start": 13745,
"text": "They observed those things and the informants intimated about the identity of those two persons as Laxmana Poojary and Dinesh @ Harish i.e., accused No.1 and 2."
}
},
{
"from_name": "label",
"id": "f3b64584efea498ab1ff58ebf6036fea",
"to_name": "text",
"type": "labels",
"value": {
"end": 13988,
"labels": [
"ANALYSIS"
],
"start": 13906,
"text": "Now he has seen both the persons, who are present before the Court as the accused."
}
},
{
"from_name": "label",
"id": "3c0e266d4ca74445a6f2225f1d2fea4e",
"to_name": "text",
"type": "labels",
"value": {
"end": 14176,
"labels": [
"ANALYSIS"
],
"start": 13989,
"text": "They went and surrounded the said vehicles to apprehend them but they jumped out of the vehicle and escaped towards paddy fields, though they requested them not to ran away from the spot."
}
},
{
"from_name": "label",
"id": "3bbc28e2b63e44baafee5875f6e36c38",
"to_name": "text",
"type": "labels",
"value": {
"end": 14228,
"labels": [
"ANALYSIS"
],
"start": 14177,
"text": "Thereafter, along with panchas, they returned back."
}
},
{
"from_name": "label",
"id": "1cae33809f444495be6f99862ddf68b7",
"to_name": "text",
"type": "labels",
"value": {
"end": 14294,
"labels": [
"ANALYSIS"
],
"start": 14229,
"text": "When they inspected Maruti Omni van they found 18 polythene bags."
}
},
{
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"value": {
"end": 14418,
"labels": [
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],
"start": 14295,
"text": "In the presence of panchas, the bags were opened and on the basis of the smell, they found that they were containing ganja."
}
},
{
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"end": 14519,
"labels": [
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],
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"text": "CW-1 asked him to secure the weighing balance from a petty shop and he brought the weighing balance."
}
},
{
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"labels": [
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],
"start": 14520,
"text": "17 bags were weighing about 10 Kgs each of ganja and the remaining bag was weighing about 5 Kgs of ganja."
}
},
{
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"id": "294ad87125a3463d801f860925f197f9",
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"end": 14689,
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],
"start": 14625,
"text": "\nFrom each bag, they took 50 grams of ganja for sample purposes."
}
},
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"end": 14760,
"labels": [
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],
"start": 14689,
"text": "\nThey were separately packed and covered with white cloth and stitched."
}
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{
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"labels": [
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],
"start": 14761,
"text": "They were sealed with the letters `NDC'."
}
},
{
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"id": "b1ed2d0921a941b19ccc4a75abdbf9ec",
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"value": {
"end": 14891,
"labels": [
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],
"start": 14802,
"text": "Chits containing the signature of panchas were also affixed, for having seized the ganja."
}
},
{
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"id": "75e9ca82f664469ca19bd92337e2eac1",
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"value": {
"end": 14992,
"labels": [
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],
"start": 14892,
"text": "Vehicle mahazar was drawn in between 3.00 p.m to 6.00 P.M as per Ex.P-1 and his signature is P-1(b)."
}
},
{
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"id": "8ae4bf0f79704298aaae9885771c21b4",
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"value": {
"end": 15147,
"labels": [
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],
"start": 14993,
"text": "He identified the Maruti Omni van and the motorcycle in the photos already marked as Ex.P-2(a) to P-9(a) and their negatives prints are at Exs.P-2 to P-9."
}
},
{
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"id": "2c2d1aaa81834bdea8571f88b50ae7b2",
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"value": {
"end": 15244,
"labels": [
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],
"start": 15148,
"text": "He also identify the sample sealed packets, which were opened in the open Court at M.Os.1 to 18."
}
},
{
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"id": "7bb8351af67946789243b2d34e454352",
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"value": {
"end": 15388,
"labels": [
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],
"start": 15245,
"text": "He has seen 18 polythene bags containing ganja, same were seized from the vehicle, which were kept in the bag and they were M.Os.1(a) to 18(a)."
}
},
{
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"id": "64f66e9dd3ac4fba9c6f142f021344c4",
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"end": 15479,
"labels": [
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],
"start": 15389,
"text": "These bags contained ganja and on the basis of the smell they can say that they are ganja."
}
},
{
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"id": "79717303d7594984beb8b4ff0ce26ea2",
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"value": {
"end": 15675,
"labels": [
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],
"start": 15479,
"text": "\n 12. In the cross examination by the advocate for Accused No.1, P.W.2 has deposed that prior to the incident, he was knowing accused No.1/Laxman Poojary, as he was working in Venoor P.S. earlier."
}
},
{
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"id": "8f57a5e4a1534143919d90f8d7b337d0",
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"value": {
"end": 15783,
"labels": [
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],
"start": 15676,
"text": "In their NDC office at Mangalore, he has not reduced the information given by CW-1 at Mangalore in writing."
}
},
{
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"id": "484693c15115495c97bf008cf2b73cc2",
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"value": {
"end": 15890,
"labels": [
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],
"start": 15784,
"text": "Accused No.1 is having the house at Moodukodi village at a distance of 7-8 kms from Venoor Police Station."
}
},
{
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"id": "88695d6fc1e34c05947c603fefd836d6",
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"value": {
"end": 15964,
"labels": [
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],
"start": 15891,
"text": "He denied the suggestion that mahazar was prepared in the police station."
}
},
{
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"id": "9927d73870d24afca6ba403a7d2c7bc6",
"to_name": "text",
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"value": {
"end": 16133,
"labels": [
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],
"start": 15965,
"text": "He denied the suggestion that they have not at all witnessed the accused at that time and is deposing falsely that they escaped from the spot by leaving their vehicles."
}
},
{
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"id": "072218b7a9a5454d90e80f33e2e5acbf",
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"value": {
"end": 16232,
"labels": [
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],
"start": 16134,
"text": "He denied the further suggestion that none of the articles were found and seized from the vehicle."
}
},
{
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"id": "6a5a007cf2304c2996347dfe64d7832d",
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"value": {
"end": 16326,
"labels": [
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],
"start": 16233,
"text": "The then ASI of their office had received the phone call from CW-1 at 5.30 p.m on 05.08.2008."
}
},
{
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"id": "d1ed6660fc8e4081bf58033dcbef0d36",
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"value": {
"end": 16409,
"labels": [
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],
"start": 16327,
"text": "However, he did not speak to him on the phone but on the next day he spoke to him."
}
},
{
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"id": "7dd2b1f41af349a9a4772a54be356171",
"to_name": "text",
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"value": {
"end": 16471,
"labels": [
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],
"start": 16409,
"text": "\nCW-1/M.H.Umesh informed over the phone to secure two panchas."
}
},
{
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"id": "97feed347ed94ba9888832d20510c74a",
"to_name": "text",
"type": "labels",
"value": {
"end": 16563,
"labels": [
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],
"start": 16472,
"text": "He also informed CW-1 regarding the identity of accused No.1 when he escaped from the spot."
}
},
{
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"id": "f181942f149743f99ed3cf80f222dec4",
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"value": {
"end": 16643,
"labels": [
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],
"start": 16564,
"text": "When he was running away, he intimated CW-1 that said person is Laxman Poojary."
}
},
{
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"id": "bddb274f1f524dda8811ea09c3a376b5",
"to_name": "text",
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"value": {
"end": 16724,
"labels": [
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],
"start": 16644,
"text": "The other Police officials were unaware about the identity of accused No.1 then."
}
},
{
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"id": "fdf282ec021a4906b77937dde2e1922a",
"to_name": "text",
"type": "labels",
"value": {
"end": 16955,
"labels": [
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],
"start": 16725,
"text": "In the cross examination by advocate for accused No.2, PW-2 has denied the suggestion that accused No.2 was not present in the spot and he did not come to the spot in the motorcycle and accused No.2 was not present in the vehicle."
}
},
{
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"id": "d576af5ed994417e82efe9dd7f967699",
"to_name": "text",
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"value": {
"end": 17116,
"labels": [
"ANALYSIS"
],
"start": 16955,
"text": "\n 13. PW-3/Manju, retired PSI, deposed in his evidence in examination chief that during the month of August 2008, he was working as PSI at Venoor Police Station."
}
},
{
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"id": "20839c1e2e7246968730aa103fdc116c",
"to_name": "text",
"type": "labels",
"value": {
"end": 17567,
"labels": [
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],
"start": 17117,
"text": "On 06.08.2008 at about 11.00 p.m. C.W-1/M.H.Umesh had appeared in the police station and produced written report, panchanama and 17 polythene bags containing 10 Kgs. of ganja each and one polythene bag containing 5 Kgs. of ganja and also 18 small sealed pockets containing ganja weighing about 50 grams each, took out for samples and the Maruti Omni car bearing registration No.KA-19- M-4775 and the motor cycle bearing registration No.KA-19-H- 3703."
}
},
{
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"id": "45bba3bbd9d84b6d8e79281f98d26435",
"to_name": "text",
"type": "labels",
"value": {
"end": 17725,
"labels": [
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],
"start": 17568,
"text": "On the basis of the above materials, he has registered a case in his P.S. in Crime No.52/2008 of Venoor police station under Section 20(b) of NDPS Act, 1985."
}
},
{
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"id": "6f41154e43b0495b8abc28dc3e7caca3",
"to_name": "text",
"type": "labels",
"value": {
"end": 17841,
"labels": [
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],
"start": 17726,
"text": "Thereafter, he has transmitted the FIR and the report to the Special Court through women constable Smt.Vanaja/CW-9."
}
},
{
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"id": "c46fc9c7ec4141bd93200d6ae127fc26",
"to_name": "text",
"type": "labels",
"value": {
"end": 17886,
"labels": [
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],
"start": 17842,
"text": "FIR is Ex.P-16 and his signature is P-16(a)."
}
},
{
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"id": "4c9020096f9648d4b7a1a7b8ef724945",
"to_name": "text",
"type": "labels",
"value": {
"end": 17969,
"labels": [
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],
"start": 17887,
"text": "Report submitted by CW-1 is Ex.P-17 and his endorsement with signature is P-17(a)."
}
},
{
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"id": "eebd73337b0e44869b7302f96f80a50a",
"to_name": "text",
"type": "labels",
"value": {
"end": 18009,
"labels": [
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],
"start": 17970,
"text": "Panchanama is already marked as Ex.P-1."
}
},
{
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"id": "5ec02c0df30046f0b1b9b8b34bb29b36",
"to_name": "text",
"type": "labels",
"value": {
"end": 18094,
"labels": [
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],
"start": 18010,
"text": "Thereafter, he has subjected the seized properties to P.F. No.31/2008 on 06.08.2008."
}
},
{
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"id": "00c2e2ccc4c9458db24579867533ff0b",
"to_name": "text",
"type": "labels",
"value": {
"end": 18236,
"labels": [
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],
"start": 18095,
"text": "On 11.08.2008 he handed over the further investigation to CW-1/M.H.Umesh along with the report and seized properties and connected materials."
}
},
{
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"id": "77fb6b9e11244febb74854fe44b16b3d",
"to_name": "text",
"type": "labels",
"value": {
"end": 18302,
"labels": [
"ANALYSIS"
],
"start": 18236,
"text": "\n He has seen M.O.s-1 to 18 and corresponding M.O.s-1(a) to 18(a)."
}
},
{
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"id": "0346fb9c4f8545a79728638fe7c9805c",
"to_name": "text",
"type": "labels",
"value": {
"end": 18349,
"labels": [
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],
"start": 18303,
"text": "He can identify the vehicles, if shown to him."
}
},
{
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"id": "cb1f90961d164e099d9dacc41cabe3ac",
"to_name": "text",
"type": "labels",
"value": {
"end": 18432,
"labels": [
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],
"start": 18350,
"text": "He has seen the photos Ex.P-2 to P-5 and P-6 to P-9 in respect of seized vehicles."
}
},
{
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"id": "4b438811086746c28017c1671aa32a58",
"to_name": "text",
"type": "labels",
"value": {
"end": 18607,
"labels": [
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],
"start": 18433,
"text": "However, accused No.1 and accused No.2 were not produced by CW-1 at that time but they had appeared before him after obtaining the orders of anticipatory bail from the Court."
}
},
{
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"id": "71f9b6cd20014c63b6989e076045e94b",
"to_name": "text",
"type": "labels",
"value": {
"end": 18701,
"labels": [
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],
"start": 18607,
"text": "\nTherefore, he had seen them and he identified both accused, who are present before the Court."
}
},
{
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"id": "aefb45c88d2a46f38b7fd3131e53cdc6",
"to_name": "text",
"type": "labels",
"value": {
"end": 18874,
"labels": [
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],
"start": 18701,
"text": "\n 14. In the cross examination by learned counsel for accused No.2, P.W.3 has deposed that before submitting the report, CW-1 had not sent any information to him over phone."
}
},
{
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"id": "7fbd8d353d884e1fb4c500f4cb640112",
"to_name": "text",
"type": "labels",
"value": {
"end": 18959,
"labels": [
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],
"start": 18874,
"text": "\nThere is a distance of about 6 kilometers between Venoor P.S.\nand Moodukodi village."
}
},
{
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"id": "5d34b0863485402b82b703892a587b30",
"to_name": "text",
"type": "labels",
"value": {
"end": 19136,
"labels": [
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],
"start": 18959,
"text": "\n 15. PW-4/Devaraju, ASI, deposed in his evidence in the examination in chief that during the year 2008, he was working as Head Constable in Narcotic Drugs Cell, COD, Bangalore."
}
},
{
"from_name": "label",
"id": "a23b30f174e54675b5bbaa2cf7d98a5e",
"to_name": "text",
"type": "labels",
"value": {
"end": 19221,
"labels": [
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],
"start": 19137,
"text": "At that time, M.H.Umesh/CW-1 was working as Police Inspector in NDC, COD, Bangalore."
}
},
{
"from_name": "label",
"id": "4f6e14edebdc453b88f1edd7821d2079",
"to_name": "text",
"type": "labels",
"value": {
"end": 19579,
"labels": [
"ANALYSIS"
],
"start": 19222,
"text": "On 05.08.2008 at about 4 P.M., CW-1 called him and informed him about the receipt of credible information from the informant at Mangalore stating that, Laxman Poojary/accused No.1 has stored the Narcotic in his house at Moodukodi village and he is proceeding to dispose off the same on the next day and asked him to accompany him immediately to Belthangady."
}
},
{
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"id": "8f9ef372c9c14fbd85bd68c9859d91ee",
"to_name": "text",
"type": "labels",
"value": {
"end": 19700,
"labels": [
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],
"start": 19580,
"text": "CW-1/M.H.Umesh informed the superior officers in writing about the credible information and obtained permission to raid."
}
},
{
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"id": "a8b6ae243f9749f1b6177f73555c88ca",
"to_name": "text",
"type": "labels",
"value": {
"end": 19832,
"labels": [
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],
"start": 19701,
"text": "He has also informed their staff in Mangalore office about it and also intimated that he would arrive at Mangalore on the next day."
}
},
{
"from_name": "label",
"id": "bf1485eafcc74b41829a078ece84cd9f",
"to_name": "text",
"type": "labels",
"value": {
"end": 20028,
"labels": [
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],
"start": 19833,
"text": "Therefore, during night they left Bangalore in a Bus and came to Mangalore at about 7 a.m. and went to the office at 7.30 a.m. CW-1 introduced themselves to the staff and also to the two panchas."
}
},
{
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"id": "50c6274e3aa24cef8ba78c62d607588c",
"to_name": "text",
"type": "labels",
"value": {
"end": 20190,
"labels": [
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],
"start": 20029,
"text": "Thereafter, on the very same day at 11.30 a.m. they went in their departmental jeep bearing registration No.KA-01-4241 to Moodukodi village at Belthangady Taluk."
}
},
{
"from_name": "label",
"id": "125252ee20a948f58df1f9b8823dca43",
"to_name": "text",
"type": "labels",
"value": {
"end": 20270,
"labels": [
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],
"start": 20191,
"text": "They reached at about 1.30 P.M. and the informant met them in the said village."
}
},
{
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"id": "e297806774b1432d82eeee29e0902c70",
"to_name": "text",
"type": "labels",
"value": {
"end": 20412,
"labels": [
"ANALYSIS"
],
"start": 20271,
"text": "They went inside the said village to the extent of half kilometer and parked their jeep and then they were watching by concealing themselves."
}
},
{
"from_name": "label",
"id": "95928ccee3c74290b41b3fe34fafe3f6",
"to_name": "text",
"type": "labels",
"value": {
"end": 20507,
"labels": [
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],
"start": 20413,
"text": "At about 2.30 p.m. in the said spot one white Maruti Omni van came there followed by the bike."
}
},
{
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"id": "a664d2ed2cda49f6a700c1c4e2ce6d34",
"to_name": "text",
"type": "labels",
"value": {
"end": 20619,
"labels": [
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],
"start": 20508,
"text": "The informant told them that in the said van, ganja is being transported and the van is driven by its owner Sri"
}
},
{
"from_name": "label",
"id": "3efe9ab1660541afa286f24cfa85efa9",
"to_name": "text",
"type": "labels",
"value": {
"end": 20649,
"labels": [
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],
"start": 20619,
"text": ".Laxman Poojary/ accused No.1."
}
},
{
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"id": "1db67b4386c0449b9b4ea2ca35d60dce",
"to_name": "text",
"type": "labels",
"value": {
"end": 20732,
"labels": [
"ANALYSIS"
],
"start": 20650,
"text": "It was also informed that the rider of motor cycle was one Mr.Dinesh/accused No.2."
}
},
{
"from_name": "label",
"id": "5624a25204354e70a85465fbd7d2ac49",
"to_name": "text",
"type": "labels",
"value": {
"end": 20808,
"labels": [
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],
"start": 20733,
"text": "Then they went near the house of accused No.1 and parked the said vehicles."
}
},
{
"from_name": "label",
"id": "93aebc83d981439cb8ba7b7a9d83470e",
"to_name": "text",
"type": "labels",
"value": {
"end": 20923,
"labels": [
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],
"start": 20809,
"text": "Accused No.2 went inside the Maruti van and sitting by the side of driver's seat, they were talking to each other."
}
},
{
"from_name": "label",
"id": "60d15a680624475bbbf6ab88364e3cd5",
"to_name": "text",
"type": "labels",
"value": {
"end": 20948,
"labels": [
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],
"start": 20924,
"text": "The informant went away."
}
},
{
"from_name": "label",
"id": "f80afed303c94a5d8ec405df6133f204",
"to_name": "text",
"type": "labels",
"value": {
"end": 21048,
"labels": [
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],
"start": 20949,
"text": "In the meanwhile, Police Inspector along with their staff and panchas surrounded the said vehicles."
}
},
{
"from_name": "label",
"id": "1fa1270b4dcf47669dd7521c6cd55cd6",
"to_name": "text",
"type": "labels",
"value": {
"end": 21131,
"labels": [
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],
"start": 21049,
"text": "On seeing, both of them started running on a kachcha road to escape from the spot."
}
},
{
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"id": "13d84b3138f74282bf3613fa1b9f562e",
"to_name": "text",
"type": "labels",
"value": {
"end": 21203,
"labels": [
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],
"start": 21132,
"text": "Though they asked them not to escape, they did not do so, but ran away."
}
},
{
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"id": "a52639f043494f7394b6277d3b9b7aaf",
"to_name": "text",
"type": "labels",
"value": {
"end": 21294,
"labels": [
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],
"start": 21204,
"text": "Now he has seen both the persons, who are present before the Court and he identified them."
}
},
{
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"id": "1154334922d346558c25b0e6133f5313",
"to_name": "text",
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"value": {
"end": 21369,
"labels": [
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],
"start": 21295,
"text": "Then they returned back and on search in the van, found 18 polythene bags."
}
},
{
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"id": "a1af407cbe2547b4827472c5c55afd94",
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"type": "labels",
"value": {
"end": 21409,
"labels": [
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],
"start": 21369,
"text": "\nWhen opened the bags, they found ganja."
}
},
{
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"id": "509920803bb2464489d78800f2bec331",
"to_name": "text",
"type": "labels",
"value": {
"end": 21499,
"labels": [
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],
"start": 21410,
"text": "Then same was weighed and there were 17 bags each weighing 10 kg and 1 bag weighing 5 kg."
}
},
{
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"id": "c3171f1a633744fa8f13def2bf340239",
"to_name": "text",
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"value": {
"end": 21532,
"labels": [
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],
"start": 21500,
"text": "Totally, it was 175 kg of ganja."
}
},
{
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"id": "693faaa4ae994ce0b3ee04645a1cd8c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 21586,
"labels": [
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],
"start": 21533,
"text": "From each bag, they took 50 grams for sample purpose."
}
},
{
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"id": "fcbe6b67b7434308a1c6e3fc86456c84",
"to_name": "text",
"type": "labels",
"value": {
"end": 21638,
"labels": [
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],
"start": 21587,
"text": "Ganja packets were seized under the mahazar Ex.P-1."
}
},
{
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"id": "90d860581b8f436d9d8ac3af0adb68c2",
"to_name": "text",
"type": "labels",
"value": {
"end": 21666,
"labels": [
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],
"start": 21639,
"text": "His signature is Ex.P-1(c)."
}
},
{
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"id": "8f5f80667eb54945be384df5f13e22dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 21740,
"labels": [
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],
"start": 21667,
"text": "The seized articles are M.O.s.1 to 18 and samples are M.O.s.1(a) to18(a)."
}
},
{
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"id": "53b2c785d60a4f00b2118b08d13b4772",
"to_name": "text",
"type": "labels",
"value": {
"end": 21847,
"labels": [
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],
"start": 21741,
"text": "Ex.P-2 to P-5 are the photos in respect of Omni Van and Exs.P-6 to P9 are photos in respect of motorcycle."
}
},
{
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"id": "7ff2485db9f84dc9af1502900021f071",
"to_name": "text",
"type": "labels",
"value": {
"end": 22070,
"labels": [
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],
"start": 21847,
"text": "\n 16. In the cross examination by the learned counsel for accused No.1, PW-4 has deposed the Inspector/CW-1 informed him about the credible information in the COD office at Bangalore, said to be received from the informant."
}
},
{
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"id": "27411461ac6b4714994fef0a563a47c2",
"to_name": "text",
"type": "labels",
"value": {
"end": 22166,
"labels": [
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],
"start": 22071,
"text": "Other than the panch witnesses and Police officials, private persons were not accompanied them."
}
},
{
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"id": "83da80425db8425c93a0f63f77d4857a",
"to_name": "text",
"type": "labels",
"value": {
"end": 22230,
"labels": [
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],
"start": 22167,
"text": "This information was written or not, known to Police Inspector."
}
},
{
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"id": "7bf9d31ea6a94ac2abe4b0855c293703",
"to_name": "text",
"type": "labels",
"value": {
"end": 22312,
"labels": [
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],
"start": 22231,
"text": "Before his visit there, he was not acquainted with anybody from the said village."
}
},
{
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"id": "9ebdc72d4650468ba1996f2b68247f9d",
"to_name": "text",
"type": "labels",
"value": {
"end": 22391,
"labels": [
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],
"start": 22313,
"text": "They did not make any attempts to secure local persons as the panch witnesses."
}
},
{
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"id": "8d16a2efe6e94eaa9a548b57d9ae8ef6",
"to_name": "text",
"type": "labels",
"value": {
"end": 22564,
"labels": [
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],
"start": 22392,
"text": "He denied the suggestion that they have not gone to the spot and not seized the ganja or vehicles and accused are in no way related to M.Os. 1 to 18 and M.Os.1(a) to 18(a)."
}
},
{
"from_name": "label",
"id": "39f4e87110e844eb89d4ec96ae0456db",
"to_name": "text",
"type": "labels",
"value": {
"end": 22703,
"labels": [
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],
"start": 22565,
"text": "He denied the suggestion that they have not seen accused Nos.1 and 2 at that time and deposing falsely that they escaped from the spot 17."
}
},
{
"from_name": "label",
"id": "2585a446ca014ad7887f0f04018d3e9a",
"to_name": "text",
"type": "labels",
"value": {
"end": 22873,
"labels": [
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],
"start": 22704,
"text": "PW-5/Chndramma, Tahasildar, deposed in her evidence in the examination in chief that during the year 2008 accused No.2 was working on temporary basis as a Grama Sahayak."
}
},
{
"from_name": "label",
"id": "ed141de4a1944c73a8c9508f3c92b39f",
"to_name": "text",
"type": "labels",
"value": {
"end": 22993,
"labels": [
"ANALYSIS"
],
"start": 22874,
"text": "Before she took charge in the said office, accused No.2 was entrusted with the duty of driving their departmental jeep."
}
},
{
"from_name": "label",
"id": "6f831780c5e146c8a9e33f924305a382",
"to_name": "text",
"type": "labels",
"value": {
"end": 23081,
"labels": [
"ANALYSIS"
],
"start": 22993,
"text": "\nOn 06.08.2008 accused No.2 requested her to grant leave on the ground that he was sick."
}
},
{
"from_name": "label",
"id": "b9d5df0e79a84a3d8b3c96e3dc7990d8",
"to_name": "text",
"type": "labels",
"value": {
"end": 23209,
"labels": [
"ANALYSIS"
],
"start": 23082,
"text": "However, as there was a meeting pertaining to elections of Kannada Sahyithya Parishad, she asked him to avail on the afternoon."
}
},
{
"from_name": "label",
"id": "62b646c027eb47a2bfaa524b74a48e3d",
"to_name": "text",
"type": "labels",
"value": {
"end": 23334,
"labels": [
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],
"start": 23210,
"text": "On the next day i.e., on 7.08.2008, he came to attend the duty and accordingly, he drove the jeep to Hassan along with them."
}
},
{
"from_name": "label",
"id": "bf009283d5f64b05a8df906272607358",
"to_name": "text",
"type": "labels",
"value": {
"end": 23423,
"labels": [
"ANALYSIS"
],
"start": 23335,
"text": "After completing the meeting at about 3.00 p.m, they were returning back to Belthangady."
}
},
{
"from_name": "label",
"id": "6c9ef25b4c864c3ea1247fff5c072e43",
"to_name": "text",
"type": "labels",
"value": {
"end": 23558,
"labels": [
"ANALYSIS"
],
"start": 23424,
"text": "When they reached Dharmasthala, accused No.2 started telling that he was unable to drive the jeep as he was suffering from ill-health."
}
},
{
"from_name": "label",
"id": "081092778ffc401b9b56715c771eb824",
"to_name": "text",
"type": "labels",
"value": {
"end": 23732,
"labels": [
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],
"start": 23558,
"text": "\nAccused No.2 told that he would make an alternate arrangement by getting a driver of his choice and thereafter, he secured one driver and thereafter, accused No.2 went away."
}
},
{
"from_name": "label",
"id": "895b4daac10041fbb9aa32cb96f50549",
"to_name": "text",
"type": "labels",
"value": {
"end": 23818,
"labels": [
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],
"start": 23733,
"text": "In the meanwhile, the substituted driver drove the jeep and they came to their house."
}
},
{
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"id": "8a8c7730932a4b8ca227be341212ed66",
"to_name": "text",
"type": "labels",
"value": {
"end": 23946,
"labels": [
"ANALYSIS"
],
"start": 23818,
"text": "\nThereafter, she made enquiries about the accused with Police and found that he was involved in the case pertaining to NDPS Act."
}
},
{
"from_name": "label",
"id": "2b3674c501e94fcd8bff0343bf3ee54e",
"to_name": "text",
"type": "labels",
"value": {
"end": 24156,
"labels": [
"ANALYSIS"
],
"start": 23946,
"text": "\nNDPS Squad have sought for extract of attendance register for the month of August 2008, and accordingly, she had issued the true copy of the extract to the Police Inspector, Narcotic Drugs Cell, COD Bangalore."
}
},
{
"from_name": "label",
"id": "e464900f839a4973a3f13c547ab56b55",
"to_name": "text",
"type": "labels",
"value": {
"end": 24199,
"labels": [
"ANALYSIS"
],
"start": 24157,
"text": "It is Ex.P-18 and her signature is P18(a)."
}
},
{
"from_name": "label",
"id": "bc53e622baac488a9983b7cb293029d5",
"to_name": "text",
"type": "labels",
"value": {
"end": 24259,
"labels": [
"ANALYSIS"
],
"start": 24199,
"text": "\nIn the said extract, on 7th, it is shown as duty to Hassan."
}
},
{
"from_name": "label",
"id": "8530239e0d0c44c2a9f4504fff13156a",
"to_name": "text",
"type": "labels",
"value": {
"end": 24380,
"labels": [
"ANALYSIS"
],
"start": 24260,
"text": "She addressed letter to Police Inspector, NDC, COD, Bangalore on 19.08.2008 as per Ex.P-19 and P-19(a) is her signature."
}
},
{
"from_name": "label",
"id": "e710782c65a84d3c8a507c9024a3b58b",
"to_name": "text",
"type": "labels",
"value": {
"end": 24575,
"labels": [
"ANALYSIS"
],
"start": 24381,
"text": "As accused No.2 was involved in the offence under the NDPS Act and as he was a temporary employee, she removed him from service in the public interest by an order dated 8.08.2008 as per Ex.P-20."
}
},
{
"from_name": "label",
"id": "69693a5161704b1e8c848bc3b369a585",
"to_name": "text",
"type": "labels",
"value": {
"end": 24631,
"labels": [
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],
"start": 24576,
"text": "Now she has seen accused No.2 present before the Court."
}
},
{
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"id": "4d83da1aea0b4c4b9c0a7ce8cf47b923",
"to_name": "text",
"type": "labels",
"value": {
"end": 24777,
"labels": [
"ANALYSIS"
],
"start": 24631,
"text": "\n 18. In the cross examination by learned counsel for accused No.2, PW-5 has deposed that they maintained the attendance register in their office."
}
},
{
"from_name": "label",
"id": "f5280f3a987745e7a2bce2c703866416",
"to_name": "text",
"type": "labels",
"value": {
"end": 24856,
"labels": [
"ANALYSIS"
],
"start": 24778,
"text": "As per the attendance register extract, accused No.2 has worked on 06.08.2008."
}
},
{
"from_name": "label",
"id": "686d5ea4731d4f8c909aad30b7ec2af8",
"to_name": "text",
"type": "labels",
"value": {
"end": 24972,
"labels": [
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],
"start": 24857,
"text": "They have not issued any notice to accused No.2 for his removal from the office, since he was a temporary employee."
}
},
{
"from_name": "label",
"id": "82b51ba4b58e47d4a1e3f1e62aa6697e",
"to_name": "text",
"type": "labels",
"value": {
"end": 25035,
"labels": [
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],
"start": 24973,
"text": "In Ex.P-20, there is no mention about the leave on 06.08.2008."
}
},
{
"from_name": "label",
"id": "7c58ed69c606471594e797b353eb8f6a",
"to_name": "text",
"type": "labels",
"value": {
"end": 25045,
"labels": [
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],
"start": 25035,
"text": "\n 19. PW-6"
}
},
{
"from_name": "label",
"id": "82276626377a4ce38de9d7f5c0ecaba9",
"to_name": "text",
"type": "labels",
"value": {
"end": 25223,
"labels": [
"ANALYSIS"
],
"start": 25045,
"text": "/M.H.Umesh, Police Inspector, deposed in his evidence in the examination in chief that from 26.06.2008 to 8.07.2009,1 he was working as Police inspector of NDC, COD at Bangalore."
}
},
{
"from_name": "label",
"id": "0aaf949d042d42ef934ab420d7f72556",
"to_name": "text",
"type": "labels",
"value": {
"end": 25511,
"labels": [
"ANALYSIS"
],
"start": 25224,
"text": "On 05.08.2008, when he was in office at Bangalore, at about 4 p.m. he received a phone call from their informant at Mangalore stating that, on 06.08.2008 at Moodukodi village, accused No.1 is trying to dispose of ganja in his vehicle and if he arrive at the spot, then he would show him."
}
},
{
"from_name": "label",
"id": "d49db909b6fb4aa0a1dcce8796a98efb",
"to_name": "text",
"type": "labels",
"value": {
"end": 25631,
"labels": [
"ANALYSIS"
],
"start": 25512,
"text": "Therefore, he mentioned the receipt of said information in separate register kept in their office for the said purpose."
}
},
{
"from_name": "label",
"id": "29cbd489b86641bf81ba4d5a2d371b94",
"to_name": "text",
"type": "labels",
"value": {
"end": 25731,
"labels": [
"ANALYSIS"
],
"start": 25632,
"text": "He has also intimated the said fact to his Dy.S.P. and obtained his permission to conduct the raid."
}
},
{
"from_name": "label",
"id": "de23faeea1714169a8f6cb669399004a",
"to_name": "text",
"type": "labels",
"value": {
"end": 25851,
"labels": [
"ANALYSIS"
],
"start": 25732,
"text": "He has seen written information submitted to Dy.S.P of NDC, COD cell Bangalore as per Ex.P-21 his signature is P-21(a)."
}
},
{
"from_name": "label",
"id": "61e1c09788d946e5a1684092d2f7f420",
"to_name": "text",
"type": "labels",
"value": {
"end": 25892,
"labels": [
"ANALYSIS"
],
"start": 25851,
"text": "\n Permission given by Dy.S.P. is Ex.P-22."
}
},
{
"from_name": "label",
"id": "4d94f08a2c9343759db764aee4452339",
"to_name": "text",
"type": "labels",
"value": {
"end": 25941,
"labels": [
"ANALYSIS"
],
"start": 25893,
"text": "The extract of register in form No.3 is Ex.P-23."
}
},
{
"from_name": "label",
"id": "39b12f5f16a644c1b3fe467aed1b6fd7",
"to_name": "text",
"type": "labels",
"value": {
"end": 26227,
"labels": [
"ANALYSIS"
],
"start": 25942,
"text": "He has also deposed in further examination in chief, in detail, about the investigation conducted, going to spot along with panchas and the staff and seizing the ganja bags from the white Maruti Omni van and conducting the weighment and seizing the ganja bags under the mahazar Ex.P-1."
}
},
{
"from_name": "label",
"id": "5ffe74e09e4e4611bd06bd010cb5ad7e",
"to_name": "text",
"type": "labels",
"value": {
"end": 26510,
"labels": [
"ANALYSIS"
],
"start": 26227,
"text": "\nHe further deposed that at 11.00 p.m. on 06.08.2008, they retuned back to Venoor Police along with seized articles and mahazar and he submitted his report as per Ex.P-17 to the PSI of Venoor Police Station to register the case for further investigation and his signature is P-17(b)."
}
},
{
"from_name": "label",
"id": "2b85a94d2dda49cbb28c51e2e73ddb16",
"to_name": "text",
"type": "labels",
"value": {
"end": 26637,
"labels": [
"ANALYSIS"
],
"start": 26511,
"text": "On 7.08.2008 at 1.15 a.m., he informed his superior officers about seizure of ganja and the vehicles through wireless message."
}
},
{
"from_name": "label",
"id": "9ecbe390a43949d0aecb6c1b6af49005",
"to_name": "text",
"type": "labels",
"value": {
"end": 26688,
"labels": [
"ANALYSIS"
],
"start": 26638,
"text": "It is as per Ex.P-25 and his signature is P-25(a)."
}
},
{
"from_name": "label",
"id": "c4e39a060948441a854717fdd9a28444",
"to_name": "text",
"type": "labels",
"value": {
"end": 26802,
"labels": [
"ANALYSIS"
],
"start": 26688,
"text": "\nHe has also submitted the written detailed report regarding the raid as per Ex.P-26 and his signature is P-26(a)."
}
},
{
"from_name": "label",
"id": "7eb219987d084ebeb66f1af9d28d9acc",
"to_name": "text",
"type": "labels",
"value": {
"end": 26891,
"labels": [
"ANALYSIS"
],
"start": 26803,
"text": "On 11.08.2008, he was directed by the S.P. of NDC to proceed with further investigation."
}
},
{
"from_name": "label",
"id": "cac76b85f5fd4f8aa01ab3a4022a76b9",
"to_name": "text",
"type": "labels",
"value": {
"end": 26986,
"labels": [
"ANALYSIS"
],
"start": 26892,
"text": "The said memo is Ex.P27 and for having received the same, he put his signature as per P.27(a)."
}
},
{
"from_name": "label",
"id": "8a2711fad8984485b7ec698c5e37bf63",
"to_name": "text",
"type": "labels",
"value": {
"end": 27070,
"labels": [
"ANALYSIS"
],
"start": 26987,
"text": "On 13.08.2008 he sent M.Os.1(a) to 18(a) to FSL at Bangalore for chemical analysis."
}
},
{
"from_name": "label",
"id": "8e73c14c1331421b8b43b7d6967d5521",
"to_name": "text",
"type": "labels",
"value": {
"end": 27206,
"labels": [
"ANALYSIS"
],
"start": 27072,
"text": "On 16.08.2008, he secured B extract, from the RTO Puttur, in respect of seized Maruti Omni van bearing No.KA-19-M-4775 as per Ex.P-12."
}
},
{
"from_name": "label",
"id": "aa033075874042b99f1f015ab8d798e8",
"to_name": "text",
"type": "labels",
"value": {
"end": 27264,
"labels": [
"ANALYSIS"
],
"start": 27207,
"text": "So also in respect of two wheeler vehicle as per Ex.P-13."
}
},
{
"from_name": "label",
"id": "f3d645edc462451db7ecd1265bbf4f56",
"to_name": "text",
"type": "labels",
"value": {
"end": 27318,
"labels": [
"ANALYSIS"
],
"start": 27265,
"text": "On 15.09.2008, he received FSL report as per Ex.P-14."
}
},
{
"from_name": "label",
"id": "6e411ae3d0a249d98bd1738e6cb328f0",
"to_name": "text",
"type": "labels",
"value": {
"end": 27393,
"labels": [
"ANALYSIS"
],
"start": 27318,
"text": "\nOn the very day, he has also recorded the statement of Sallapurayya CW-10."
}
},
{
"from_name": "label",
"id": "6ee4866e52084201af3b1cdb51fe268a",
"to_name": "text",
"type": "labels",
"value": {
"end": 27477,
"labels": [
"ANALYSIS"
],
"start": 27394,
"text": "On 9.04.2009, as he has completed the investigation, he submitted the charge sheet."
}
},
{
"from_name": "label",
"id": "732dfde287c640d38c90ba2c97593782",
"to_name": "text",
"type": "labels",
"value": {
"end": 27527,
"labels": [
"ANALYSIS"
],
"start": 27478,
"text": "PW-1 stated before him as per Ex.P10 and 11.\n 20."
}
},
{
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"id": "3c349103f2a045a1b80893e17591da39",
"to_name": "text",
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"value": {
"end": 27704,
"labels": [
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],
"start": 27528,
"text": "In the cross examination by advocate for Accused No.1, PW-6 has deposed that immediately after the receipt of information at about 4.00p.m, he made the entries in the register."
}
},
{
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"id": "14a36f1b7adf44c38ec52c1e9be7129b",
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"value": {
"end": 27823,
"labels": [
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],
"start": 27704,
"text": "\nHe has not sent the extract of said register to his superior officer and the same is produced along with charge sheet."
}
},
{
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"id": "9752addd4a5345808da4cc9761bdba29",
"to_name": "text",
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"value": {
"end": 27900,
"labels": [
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],
"start": 27824,
"text": "He denied the suggestion that subsequently, he has created Exs.P-21 to P-23."
}
},
{
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"id": "d61bbb56fc2e4c41b992a7e993131a8f",
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"value": {
"end": 27994,
"labels": [
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],
"start": 27900,
"text": "\nThe place of offence is at the distance of about 50 to 60 kms from their office at Mangalore."
}
},
{
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"id": "00b9e1a09ec6406b91a3e0516c986752",
"to_name": "text",
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"value": {
"end": 28091,
"labels": [
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],
"start": 27995,
"text": "Before arrival to the place of raid, he did not intimate the said fact at Venoor police station."
}
},
{
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"id": "2446f5d9804140c2a1004401b8458cae",
"to_name": "text",
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"value": {
"end": 28284,
"labels": [
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],
"start": 28092,
"text": "He denied the suggestion that accused have not given any voluntary statement before him, and also denied the further suggestion that he has not received any credible information in the matter."
}
},
{
"from_name": "label",
"id": "6999ee7e765d49ab93d8b11f7a039029",
"to_name": "text",
"type": "labels",
"value": {
"end": 28490,
"labels": [
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],
"start": 28284,
"text": "\n 21. During the course of argument, it is the contention of learned counsel for the accused that regarding the receipt of the credible information is concerned, Section 42 of NDPS Act is not complied with."
}
},
{
"from_name": "label",
"id": "dadcaa9d15494df19caddb113e69a5ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 28622,
"labels": [
"STA"
],
"start": 28491,
"text": "Section 42 (2) of NDPS Act reads as under: Section 42. Power of entry, search, seizure and arrest without warrant or authorization."
}
},
{
"from_name": "label",
"id": "329a434858c84934bd84fdf33d1a70a6",
"to_name": "text",
"type": "labels",
"value": {
"end": 28855,
"labels": [
"STA"
],
"start": 28622,
"text": "\n (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."
}
},
{
"from_name": "label",
"id": "ed1afd175966467ba3e372d865257e88",
"to_name": "text",
"type": "labels",
"value": {
"end": 29262,
"labels": [
"ANALYSIS"
],
"start": 28855,
"text": "\n 22. Therefore, looking to the said provision, the requirements of said provision are that the information so received as per Section 42(1) of the Act is to be reduced into writing and as per the proviso to Section 42(1) regarding his belief for the necessity for the search, seizure and the arrest of the persons within 72 hours, complainant has to send the said information to his superior officers.\n 23."
}
},
{
"from_name": "label",
"id": "bcd4a47e6927497a8d0f8ba3ebadb606",
"to_name": "text",
"type": "labels",
"value": {
"end": 29415,
"labels": [
"ANALYSIS"
],
"start": 29263,
"text": "But looking to the materials placed on record, it shows that the prosecution has not complied with the mandatory provision of Section 42(2) of NDPS Act."
}
},
{
"from_name": "label",
"id": "3a8daac342b443a5bc6ebbf6f90b5963",
"to_name": "text",
"type": "labels",
"value": {
"end": 29552,
"labels": [
"ANALYSIS"
],
"start": 29416,
"text": "The person, who said to have been received the information at the first instance from the informant is PW-6/M.H.Umesh, Police Inspector."
}
},
{
"from_name": "label",
"id": "c0f1677faf414534b8b70789c3e99586",
"to_name": "text",
"type": "labels",
"value": {
"end": 29700,
"labels": [
"ANALYSIS"
],
"start": 29553,
"text": "Perusing his evidence in the cross-examination, he has clearly mentioned that he has not sent the extract of said register to his superior officer."
}
},
{
"from_name": "label",
"id": "edb679d8698747e49346bd561736a279",
"to_name": "text",
"type": "labels",
"value": {
"end": 30051,
"labels": [
"ARG_PETITIONER"
],
"start": 29700,
"text": "\n 24. During the course of arguments, learned counsel for accused No.1 has also drew the attention of this Court to ground No.(b) in para No.3 of the appeal memorandum, which reads as under: (b) In the course of investigation, accused were granted anticipatory bails per order dated 17.10.2008 by the Court of Principal Sessions Judge, D.K. Mangalore."
}
},
{
"from_name": "label",
"id": "27c34b86a711494caeb44e07a12c4b53",
"to_name": "text",
"type": "labels",
"value": {
"end": 30317,
"labels": [
"ANALYSIS"
],
"start": 30052,
"text": "In the said orders of anticipatory bail, it was noted as under: \"On the material available on record, at this stage, as per the case of the prosecution, it is clear that eighteen polythene bags containing ganja were found in white omni van bearing No.KA-19-M- 4775."
}
},
{
"from_name": "label",
"id": "bfbb221ec8ff47aab77d11f322db57f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 30450,
"labels": [
"ANALYSIS"
],
"start": 30318,
"text": "No material whatsoever is forthcoming at this stage to show as to whether the said vehicle is a private vehicle or a public vehicle."
}
},
{
"from_name": "label",
"id": "9fb27f9e697147a4b9f6f9213548e47e",
"to_name": "text",
"type": "labels",
"value": {
"end": 30750,
"labels": [
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],
"start": 30451,
"text": "The mere fact that ganja was found in the said vehicle, which was on the public road, at this point of time, cannot lead to any inference that the seizure has been effected in a public so as to attract the provisions of Section 43 of Narcotic Drugs and Psychotropic Substances Act, 1985 to the case."
}
},
{
"from_name": "label",
"id": "b986fa64b5ec4108b04fd2264f2df640",
"to_name": "text",
"type": "labels",
"value": {
"end": 30899,
"labels": [
"ANALYSIS"
],
"start": 30751,
"text": "Recovery of contraband article from a conveyance is attracting provisions of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985."
}
},
{
"from_name": "label",
"id": "32348132afca4e068adfd656ced35810",
"to_name": "text",
"type": "labels",
"value": {
"end": 31206,
"labels": [
"ANALYSIS"
],
"start": 30900,
"text": "Though the complaint and the mahazar refers in detail about the fact of the case, at this stage, even by looking into the case diaries produced it is not forthcoming about the complainant reducing the information received by him into writing and about sending copy of the said information to the superiors."
}
},
{
"from_name": "label",
"id": "8cb5e87fef7b48c8ad7c3ccff6555b6e",
"to_name": "text",
"type": "labels",
"value": {
"end": 31213,
"labels": [
"ANALYSIS"
],
"start": 31207,
"text": "\"\n 25."
}
},
{
"from_name": "label",
"id": "146bb9da7bb246cb90f5fb2b72e7ad36",
"to_name": "text",
"type": "labels",
"value": {
"end": 31525,
"labels": [
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],
"start": 31214,
"text": "From the original records secured from the trial Court, I have also perused the order passed by the Prl. Sessions Judge, Dakshina Kannada dated 17.10.2008 passed in Crl.Misc.Nos.495 and 497 of 2008 and get it confirmed about the observation made by the Sessions Judge while granting bail to accused Nos.1 and 2."
}
},
{
"from_name": "label",
"id": "64d292e912b04fe6bed4729ff2f842aa",
"to_name": "text",
"type": "labels",
"value": {
"end": 31803,
"labels": [
"ANALYSIS"
],
"start": 31526,
"text": "When case diary was produced before the Court for reference to the Court while passing the bail order and as per the contention of prosecution, the information received was immediately reduced into writing and the same was sent to the superior officers of PW-6 within 72 hours."
}
},
{
"from_name": "label",
"id": "b390910a2e3848ce8fbae069ef2e709c",
"to_name": "text",
"type": "labels",
"value": {
"end": 31944,
"labels": [
"ANALYSIS"
],
"start": 31804,
"text": "If there was compliance of Section 42 of the NDPS Act, then the same could have found place in the case diary produced in the Sessions case."
}
},
{
"from_name": "label",
"id": "d3bb0ab477104ed885b370143ff01af9",
"to_name": "text",
"type": "labels",
"value": {
"end": 32033,
"labels": [
"ANALYSIS"
],
"start": 31944,
"text": "\nPW-6 has clearly admitted that he has not sent the information to the superior officers."
}
},
{
"from_name": "label",
"id": "0f28510ad112488ab51bd010b03eeba2",
"to_name": "text",
"type": "labels",
"value": {
"end": 32212,
"labels": [
"ANALYSIS"
],
"start": 32034,
"text": "But perusing the materials on record, it not only indicates about non-sending of information to the superior officers, but also the said information was not reduced into writing."
}
},
{
"from_name": "label",
"id": "2b1cf60319e94c09a9f55e69cd9a2b12",
"to_name": "text",
"type": "labels",
"value": {
"end": 32388,
"labels": [
"ARG_PETITIONER"
],
"start": 32212,
"text": "\n 26. During the course of cross-examination of PW-6, it is the specific suggestion made by the learned counsel for the accused that Exs.P-21 to P-23 were created subsequently."
}
},
{
"from_name": "label",
"id": "d22e2e38a6264a1dbe8aaefa7edc3fb5",
"to_name": "text",
"type": "labels",
"value": {
"end": 32626,
"labels": [
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],
"start": 32388,
"text": "\n 27. Perusing the materials on record and also the decisions relied upon by the learned counsel for the accused, which are referred above, it probabilises the defence of the accused that there is non-compliance of Section 42 of NDPS Act."
}
},
{
"from_name": "label",
"id": "a614ddf53676495c85cae15887ce072b",
"to_name": "text",
"type": "labels",
"value": {
"end": 32938,
"labels": [
"ARG_PETITIONER"
],
"start": 32626,
"text": "\n 28. In this case, another legal contention of the learned counsel for the accused is that PW-6/M.H.Umesh, Police Inspector, is the complainant of this case and he himself proceeded with the further investigation of the case from 11.08.2008 and after completing the investigation, he submitted the charge sheet."
}
},
{
"from_name": "label",
"id": "84af11eb0ffc4dbd989e7bcf9b7e4f60",
"to_name": "text",
"type": "labels",
"value": {
"end": 33124,
"labels": [
"ARG_PETITIONER"
],
"start": 32939,
"text": "Therefore, the contention of the defence is that, it is not fair on the part of complainant himself to proceed with the investigation of the case and to file charge sheet in the matter."
}
},
{
"from_name": "label",
"id": "88be665a101d432b9e103885d49cdfcf",
"to_name": "text",
"type": "labels",
"value": {
"end": 33441,
"labels": [
"ANALYSIS"
],
"start": 33124,
"text": "\nIt is no doubt true, perusing the judgment and order passed by the Trial Court, it has been observed that though the complainant himself had proceeded with the investigation, but that itself will not disentitle him to proceed with investigation, unless, it is shown that the accused have been prejudiced by such act."
}
},
{
"from_name": "label",
"id": "bf04dbe1ce344e90bd7bac6efd4a5ce3",
"to_name": "text",
"type": "labels",
"value": {
"end": 33566,
"labels": [
"PRE_RELIED"
],
"start": 33441,
"text": "\n 29. I have perused the decision relied upon by the leaned counsel appearing for the accused, reported in (2010) 15 SCC 369."
}
},
{
"from_name": "label",
"id": "a0314812fed24fb0a7175ffcef66fed7",
"to_name": "text",
"type": "labels",
"value": {
"end": 33885,
"labels": [
"PRE_RELIED"
],
"start": 33567,
"text": "Persuing the said decision, Their Lordships of Hon'ble Supreme Court have laid down the proposition as under : \"Narcotic Drugs and Psychotropic substances Act, 1985 Ss.42, 44, 53, 56, 57, 67 and 68 Investigation by the very officer who registered crime Reiterated, not conducive to fair and impartial investigation "
}
},
{
"from_name": "label",
"id": "d07eada465304ce3808494ef9aca6a80",
"to_name": "text",
"type": "labels",
"value": {
"end": 33924,
"labels": [
"PRE_RELIED"
],
"start": 33885,
"text": "Hence, reversal of conviction, upheld "
}
},
{
"from_name": "label",
"id": "6388c14a077a477db0d663292b1361fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 33959,
"labels": [
"PRE_RELIED"
],
"start": 33924,
"text": "5 kg opium recovered from accused "
}
},
{
"from_name": "label",
"id": "861a610637df44b6b0db40ff06823063",
"to_name": "text",
"type": "labels",
"value": {
"end": 34130,
"labels": [
"PRE_RELIED"
],
"start": 33959,
"text": "Accused was convicted by Special Judge and was sentenced to 10 years' RI with a fine of Rs.1,00,000 - Officer, who had registered crime, also investigated the said crime "
}
},
{
"from_name": "label",
"id": "0380ceadce7c4deeb2e4693fce665aa5",
"to_name": "text",
"type": "labels",
"value": {
"end": 34191,
"labels": [
"PRE_RELIED"
],
"start": 34130,
"text": "Hence, held, High Court was justified in acquitting accused "
}
},
{
"from_name": "label",
"id": "e3a7e0f3792c4b06b80ca14f6f0b31da",
"to_name": "text",
"type": "labels",
"value": {
"end": 34243,
"labels": [
"PRE_RELIED"
],
"start": 34191,
"text": "Criminal Procedure Code, 1973, Ss.156 and 161.\"\n 30."
}
},
{
"from_name": "label",
"id": "3ce441671b3d40fdab07d82675238be4",
"to_name": "text",
"type": "labels",
"value": {
"end": 34478,
"labels": [
"ANALYSIS"
],
"start": 34244,
"text": "Therefore looking to principle enunciated in the said decision, it shows that the procedure adopted by PW-6 complainant in lodging the complainant, and he himself proceeding with the investigation of the case, is not fair on his part."
}
},
{
"from_name": "label",
"id": "2b36ba18f02c48d7b312b8c4906a52d1",
"to_name": "text",
"type": "labels",
"value": {
"end": 34634,
"labels": [
"ANALYSIS"
],
"start": 34478,
"text": "\n 31. It is the prosecution case that on 06.08.2008 both accused Nos.1 and 2 were involved in committing the alleged offence and both were seen at the spot."
}
},
{
"from_name": "label",
"id": "6a124240b8194c7ebd678177c564b3d6",
"to_name": "text",
"type": "labels",
"value": {
"end": 34958,
"labels": [
"ANALYSIS"
],
"start": 34635,
"text": "But looking to prosecution materials placed before the Trial Court so also looking to evidence of PW-5/Smt.Chandramma, the Tahasildar, they shows that, not only as per the oral evidence of PW-5 but even according to the document Ex.P-18/ attendance register extract, on 06.08.2008 accused No.2 worked in the office of PW-5."
}
},
{
"from_name": "label",
"id": "3ed9160a3f394023a3f8111bd63050cb",
"to_name": "text",
"type": "labels",
"value": {
"end": 35025,
"labels": [
"ANALYSIS"
],
"start": 34959,
"text": "Even on the next day i.e., on 7.08.2008 he worked up to noon time."
}
},
{
"from_name": "label",
"id": "f7500455729a43a4bb1e6e060a4f1500",
"to_name": "text",
"type": "labels",
"value": {
"end": 35284,
"labels": [
"ANALYSIS"
],
"start": 35026,
"text": "This evidence of PW-5 and the document Ex.P-18/attendance register extract goes to falsify the story of prosecution that accused No.2 was seen along with accused No.1 at the spot and when the Police surrounded them, both of them ran away from the said place."
}
},
{
"from_name": "label",
"id": "e7ab49c1cf2f48f88bf245d9a14e54e6",
"to_name": "text",
"type": "labels",
"value": {
"end": 35521,
"labels": [
"ANALYSIS"
],
"start": 35284,
"text": "\n 32. The independent witness PW-1, who is said to be the panch witness, has not supported the prosecution case with reference to presence of accused Nos.1 and 2 at the spot and after seeing the Police, they ran away from the said place."
}
},
{
"from_name": "label",
"id": "1ae0c84805d54ffcba5fa21d64120be1",
"to_name": "text",
"type": "labels",
"value": {
"end": 35679,
"labels": [
"ANALYSIS"
],
"start": 35522,
"text": "It is true that as per the evidence of other official witnesses, they have stated that accused were present at the spot and after seeing them, they ran away."
}
},
{
"from_name": "label",
"id": "58f155b32a084980847d17d6b04756e0",
"to_name": "text",
"type": "labels",
"value": {
"end": 35898,
"labels": [
"ANALYSIS"
],
"start": 35680,
"text": "But it has come in the evidence of PW-2 that PW-2 knew Laxman Poojary/accused No.1 as he was working in Venoor Police Station earlier and that other Police Officers were unaware about the identity of accused No.1 then."
}
},
{
"from_name": "label",
"id": "c0efa80d6ec94b2bb48ebf1b36f37914",
"to_name": "text",
"type": "labels",
"value": {
"end": 36042,
"labels": [
"ANALYSIS"
],
"start": 35899,
"text": "Perusing this evidence of PW-2, so far as accused No.2, is concerned absolutely, there is no material regarding his identification at the spot."
}
},
{
"from_name": "label",
"id": "cf36743c5297458cb130845ff38ad8e0",
"to_name": "text",
"type": "labels",
"value": {
"end": 36324,
"labels": [
"ANALYSIS"
],
"start": 36043,
"text": "Even with regard to accused No.1 also, only on the basis of evidence of PW-2 and in the absence of corroboration from the independent witnesses, it is difficult for this Court to come to the conclusion that identity of accused No.1 was established to the satisfaction of the Court."
}
},
{
"from_name": "label",
"id": "d551cddf0ca64346ae87c03cbc4518cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 36400,
"labels": [
"ANALYSIS"
],
"start": 36324,
"text": "\n 33. No test identification parade was conducted to establish the identity."
}
},
{
"from_name": "label",
"id": "9e5d916f91ef4cf9b9a35813911af312",
"to_name": "text",
"type": "labels",
"value": {
"end": 36627,
"labels": [
"ANALYSIS"
],
"start": 36401,
"text": "It is the prosecution case that the witnesses had identified accused Nos.1 and 2 when they appeared in the Police Station along with an application for anticipatory bail, which is not the identification, as required under law."
}
},
{
"from_name": "label",
"id": "69117bf529504b0289ec5bf98f36eee6",
"to_name": "text",
"type": "labels",
"value": {
"end": 36750,
"labels": [
"ANALYSIS"
],
"start": 36627,
"text": "\n 34. Regarding the seizure of ganja under Ex.P-1 mahazar, the only independent panch witness examined in the case is PW-1."
}
},
{
"from_name": "label",
"id": "d55aa3585ea349be8ebfd6e179afd5a7",
"to_name": "text",
"type": "labels",
"value": {
"end": 36793,
"labels": [
"ANALYSIS"
],
"start": 36751,
"text": "He has not supported the prosecution case."
}
},
{
"from_name": "label",
"id": "54ebc582912746d7a929f04b88589e8d",
"to_name": "text",
"type": "labels",
"value": {
"end": 36972,
"labels": [
"ANALYSIS"
],
"start": 36794,
"text": "It is true he went along with raiding party to Venoor and he signed Ex.P-1 mahazar and only on that basis, the trial Court has held that he has admitted the seizure under Ex.P-1."
}
},
{
"from_name": "label",
"id": "f5d0764b24504a45a1a4874551e30428",
"to_name": "text",
"type": "labels",
"value": {
"end": 37211,
"labels": [
"ANALYSIS"
],
"start": 36973,
"text": "But looking to oral evidence of PW-1, he deposed that after going to Venoor and to the house, the Police have picked up ganja bags from the shed of the house and brought them to Police Station and writings were made in the Police Station."
}
},
{
"from_name": "label",
"id": "b8f9000a746e46ec8a4ecd1c7c17c564",
"to_name": "text",
"type": "labels",
"value": {
"end": 37360,
"labels": [
"ANALYSIS"
],
"start": 37212,
"text": "So, it is not his evidence that ganja bags were seized from white colour Maruti Omni van and the panchanama was written at the spot in his presence."
}
},
{
"from_name": "label",
"id": "2cc1a04ec5954b2eaacf6ec013325818",
"to_name": "text",
"type": "labels",
"value": {
"end": 37612,
"labels": [
"ANALYSIS"
],
"start": 37361,
"text": "By treating him hostile though the prosecution suggested him about the seizure of ganja bags from the Maruti Van and thereafter, conducting the mahazar proceedings at the spot and drawing the mahazar Ex.P1 at the spot, he denied all those suggestions."
}
},
{
"from_name": "label",
"id": "95e51b1889444dd4a1dc1bb174e718c1",
"to_name": "text",
"type": "labels",
"value": {
"end": 37735,
"labels": [
"ANALYSIS"
],
"start": 37613,
"text": "Therefore, looking to his evidence, it cannot be taken that the prosecution proved the mahazar proceedings satisfactorily."
}
},
{
"from_name": "label",
"id": "3aff15e8951e45ceb940fa2a5603d9a6",
"to_name": "text",
"type": "labels",
"value": {
"end": 37850,
"labels": [
"ANALYSIS"
],
"start": 37736,
"text": "The other evidence regarding the seizure of ganja and writing Ex.P-1 mahazar, they are all the official witnesses."
}
},
{
"from_name": "label",
"id": "4d0d00624c1a47d085d5ff7d8208122d",
"to_name": "text",
"type": "labels",
"value": {
"end": 37979,
"labels": [
"ANALYSIS"
],
"start": 37851,
"text": "Though there was another independent witness CW-3, he has not been examined by the prosecution to prove the seizure proceedings."
}
},
{
"from_name": "label",
"id": "b953f06413034d8797db4db60f9a7361",
"to_name": "text",
"type": "labels",
"value": {
"end": 38263,
"labels": [
"ANALYSIS"
],
"start": 37979,
"text": "\n 35. In view of my above discussion and the infirmities in conducting the investigation by the Police, it is difficult to accept their evidence and to say that the seizure mahazar proceedings have been established satisfactorily and their evidence in that regard is worth believable."
}
},
{
"from_name": "label",
"id": "c20ccea2c49d48bda1414eb7a63d166e",
"to_name": "text",
"type": "labels",
"value": {
"end": 38430,
"labels": [
"ANALYSIS"
],
"start": 38265,
"text": "36. As per the prosecution case, ganja was seized on 06.08.2008 and then it was brought to the Police Station, produced before the SHO along with the report of PW-6."
}
},
{
"from_name": "label",
"id": "0852091dfdfc446489a758794cc71a82",
"to_name": "text",
"type": "labels",
"value": {
"end": 38571,
"labels": [
"ANALYSIS"
],
"start": 38430,
"text": "\n Looking to the evidence of PW-6, he deposed that the seized ganja sample was sent to FSL on 13.08.2008 i.e., after the lapse of seven days."
}
},
{
"from_name": "label",
"id": "6119eb5297e84154a702e648e88de346",
"to_name": "text",
"type": "labels",
"value": {
"end": 38783,
"labels": [
"ANALYSIS"
],
"start": 38572,
"text": "But during the period of seven days, absolutely no evidence was placed by the prosecution as to where this ganja was kept, how it was kept, whether anybody was deputed to keep watch in respect of the said ganja."
}
},
{
"from_name": "label",
"id": "76a172d51e7d465a9acbb26f4c921190",
"to_name": "text",
"type": "labels",
"value": {
"end": 39107,
"labels": [
"ANALYSIS"
],
"start": 38784,
"text": "Perusing the oral evidence of prosecution witnesses, none of them have deposed about the manner in which, and the place at which, the ganja was kept during this interval period of seven days and who are the persons, under whose care and custody, the ganja was kept, who are the persons handled the ganja during that period."
}
},
{
"from_name": "label",
"id": "9c572d58575c4ea98136c23137594039",
"to_name": "text",
"type": "labels",
"value": {
"end": 39286,
"labels": [
"ANALYSIS"
],
"start": 39108,
"text": "Though PW-6 has deposed in his evidence that he sent the samples on 13.08.2008 for chemical analysis, the covering letter for sending the sample ganja to the FSL is not produced."
}
},
{
"from_name": "label",
"id": "662b5919c95847a6ae382b4fa6259ea6",
"to_name": "text",
"type": "labels",
"value": {
"end": 39445,
"labels": [
"ANALYSIS"
],
"start": 39287,
"text": "The person, who carried the articles to FSL i.e., CW.-10 Sallapurayya, HO, COD is also not examined before the Court, so also nobody is examined from the FSL."
}
},
{
"from_name": "label",
"id": "0761353a89a4402496d6b31e252fe436",
"to_name": "text",
"type": "labels",
"value": {
"end": 39668,
"labels": [
"PRE_RELIED"
],
"start": 39446,
"text": "Learned counsel for the accused No.2 has relied upon the decision of the Hon'ble Supreme Court reported in AIR 2011 SC 1335 (1) in the case of ASHOK ALIAS DANGRA JAISWAL V.\n STATE OF M.P. In para No.11 of the said decision"
}
},
{
"from_name": "label",
"id": "c06905a40ad04f809585899239079389",
"to_name": "text",
"type": "labels",
"value": {
"end": 39713,
"labels": [
"PRE_RELIED"
],
"start": 39669,
"text": "Their Lordships have observed as under: \"11."
}
},
{
"from_name": "label",
"id": "0e68c6895afe4963a3fee3d7f1ad394e",
"to_name": "text",
"type": "labels",
"value": {
"end": 40085,
"labels": [
"PRE_RELIED"
],
"start": 39714,
"text": "The FSL report came on March 21, 2005, and on that basis the police submitted charge- sheet against the accused on March 31, 2005, but the alleged narcotic substance that was seized from the accused including the appellant was deposited in the Malkhana about two months later on May 28, 2005, there is no explanation where the seized substance was kept in the meanwhile.\""
}
},
{
"from_name": "label",
"id": "92b1215c0cb04385bd1a4164ce0b8521",
"to_name": "text",
"type": "labels",
"value": {
"end": 40323,
"labels": [
"RATIO"
],
"start": 40085,
"text": "\n 37. Therefore, the Trial Court has not taken into consideration all these aspects while appreciating the case on hand and wrongly proceeded to hold that prosecution proved its case against accused Nos.1 and 2 and wrongly convicted them."
}
},
{
"from_name": "label",
"id": "efb8a9c0d6424ba1afc50e90641c8a26",
"to_name": "text",
"type": "labels",
"value": {
"end": 40473,
"labels": [
"RATIO"
],
"start": 40324,
"text": "The judgment and order of conviction passed by the Trial Court is not in accordance with oral and documentary evidence, which I have discussed above."
}
},
{
"from_name": "label",
"id": "878e4c82632743c1a8bb2bfa0605fc00",
"to_name": "text",
"type": "labels",
"value": {
"end": 40549,
"labels": [
"RATIO"
],
"start": 40474,
"text": "Hence, the judgment and order of the trial Court is not sustainable in law."
}
},
{
"from_name": "label",
"id": "cd867c50e3e9446d82ba1b87e0e5b7fe",
"to_name": "text",
"type": "labels",
"value": {
"end": 40754,
"labels": [
"RATIO"
],
"start": 40550,
"text": "There arises reasonable doubt as to the case of prosecution and prosecution materials will not prove the case beyond all reasonable doubt, hence, the benefit of doubt will have to be given to the accused."
}
},
{
"from_name": "label",
"id": "9b4c70291f584b0ba72813060f5f0d30",
"to_name": "text",
"type": "labels",
"value": {
"end": 40802,
"labels": [
"RPC"
],
"start": 40754,
"text": "\n 38. Accordingly, both the appeals are allowed."
}
},
{
"from_name": "label",
"id": "d367dba5652d4ec5b1baffa80398b9e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 41009,
"labels": [
"RPC"
],
"start": 40803,
"text": "The judgment and order of conviction dated 11.7.2013 passed by the Principal Sessions and Special Judge, Dakshina Kannada, Mangalore in Spl.Case No.8/2009, which is challenged in these appeals is set-aside."
}
},
{
"from_name": "label",
"id": "3ea3213c1aa24e68a4030e365e23e1e3",
"to_name": "text",
"type": "labels",
"value": {
"end": 41123,
"labels": [
"RPC"
],
"start": 41010,
"text": "The appellants/accused Nos.1 and 2 are acquitted of the charges leveled against them and they are set at liberty."
}
},
{
"from_name": "label",
"id": "6dcc86bc60444f42bfa9d28516e7f3a4",
"to_name": "text",
"type": "labels",
"value": {
"end": 41266,
"labels": [
"NONE"
],
"start": 41123,
"text": "\n In view of allowing the appeals, I.A.Nos.1/2013 and 1/2014 filed in Crl.A.728/2013 and I.A.No.1/2013 filed in Crl.A.718/2013 are disposed of."
}
},
{
"from_name": "label",
"id": "c173bb4c4ede431db3ec403580a03f4b",
"to_name": "text",
"type": "labels",
"value": {
"end": 41286,
"labels": [
"NONE"
],
"start": 41266,
"text": "\n Sd/- JUDGE Bkp/BSR"
}
}
]
}
] | 1,761 | {
"text": " IN THE HIGH COURT OF KARNATAKA AT\n BENGALURU\n\n DATED THIS THE 31ST DAY OF MARCH 2015\n\n BEFORE\n\n THE HON'BLE MR. JUSTICE BUDIHAL. R.B\n\n CRIMINAL APPEAL NO.718/2013\n C/W\n\n CRIMINAL APPEAL NO.728/2013\n\nIN CRIMINAL APPEAL NO.718/2013\n\nBETWEEN:\n\nSri Laxman Poojary .. APPELLANT\nAged 39 years\nS/o Dadu Poojary\nR/at Puthilakaje\nMudukodi Village and Post\nBelthangady Taluk.\n\n(By Sri. S K Venkata Reddy, Adv.)\n\nAND:\n\nThe State represented by ..RESPONDENT\nThe Police Inspector\nNDC, COD,\nBangalore.\n(Represented by the learned\nState Public Prosecutor\nHigh Court of Karnataka\nBangalore)\n\n(By Sri. Chetan Desai, HCGP)\n\n\nIN CRIMINAL APPEAL NO.728/2013\n\nBETWEEN:\n\nSri Dinesh @ Harish Devadiga .. APPELLANT\nS/o Late Sankappa Devadiga\nAged 32 years\nDriver\nR/at Hosamane\nKathody Bailu\nVenoor Village\nBelthangady Taluk-574 214.\n\n(By Sri. Vinod Kumar M, Adv.)\n\nAND:\n\nState of Karnataka ..RESPONDENT\nRepresented by Inspector\nNarcotic Drugs Cell\nCOD\nCarlton Bhavan\nPalace Bhavan\nBangalore-560 001.\n\n(By Sri. Chetan Desai, HCGP)\n\n These Criminal Appeals are filed under Section 374(2) CR.P.C\npraying to set aside the Judgment of conviction dated 11/12.07.2013\npassed by the Prl. S.J., D.K., Mangalore in Spl.C.No.8/2009 \nconvicting the appellant/accused for the offence punishable under\nSection 8(c) read with Section 20(b)(ii)(c) of Narcotic Drugs and\nPsychotropic Substances Act, 1985 and etc.\n\n These Criminal Appeals having been heard and reserved for\njudgment, coming on for pronouncement of judgment this day, the\nCourt delivered the following:\n\n JUDGMENT\n Since these two appeals are arising out of the common judgment passed by the trial Court and since common questions of fact and law are involved in these two appeals, they have been taken together to dispose of them by a common judgment.\n 2. Criminal Appeal No.718/2013 is preferred by Accused No.1 and Crl.A.No.728/2013 is preferred by accused No.2.\n 3. The appellants-accused Nos.1 and 2 have preferred these appeals being aggrieved by the judgment of conviction dated 11.7.2013 passed by the Principal Sessions and Special Judge, Dakshina Kannada, Mangalore in Spl.Case No.8/2009 holding appellants guilty of the offences punishable under Section 8(c) r/w Section 20(b)(ii)(c) of NDPS Act, 1985 and the order of sentence dated 12.7.2013 imposing rigorous imprisonment for ten years and to pay a fine of Rs.1 lakh each and in default, to undergo further rigorous imprisonment for one year. They have challenged the validity and correctness of the order of trial Court on the grounds mentioned in their respective appeal memorandums.\n 4. The case of the prosecution in brief before the trial Court is that the Inspector of Police, Narcotic Drugs Cell, COD., Bangalore has lodged the complaint dated 6.8.2008 addressing to the Police Sub-Inspector, Venoor police station, Belthangady Taluk stating that on 5.8.2008 at 16.00 hours when he was in the COD office, his informant informed that on 6.8.2008 one Lakshman Poojary of Mudukodi village will be carring ganja illegally in his Maruti van for the purpose of sale and if complainant comes, he would show the same. Immediately, he informed the same to his higher officers and after obtaining their permission during night on the same day he left Bangalore to Mangalore along with Head constable Devaraju and went to COD Office at Mangalore and with the staff therein they proceeded in the jeep bearing No.KA01-G-4241 and came to Mudukodi village and were waiting. At that time, informant took the complainant, his staff and also the panchas to the mud road situate on the eastern side of the tar road of Venoor towards Mudukodi and shown them one white colour maruti van and told that it contains ganja bags and the said van belongs to Laxman Poojary and to help Lakshman Poojary one Dinesh @ Harish is also with him in his motorcycle. Immediately the complainant with his staff in the presence of panch witnesses surrounded the said van. Two persons were sitting in the van and after seeing the complainant and his staff, those two persons jumped and ran away. Though the complainant made an effort to chase them he did not succeed.\nIn the van there were 18 polythene bags and when weighed 17 bags contained 10 kgs each of ganja and one bag contained 5 kgs.\nof ganja The value of the ganja was Rs.21 lakhs and the maruti van bearing No.KA-19-M-4775 was worth Rs.1,50,000/- and the motorcycle bearing No.KA-19-H-3703 was worth Rs.30,000/- and in total all the materials were worth Rs.22,80,000/-. They were seized in the presence of panch witnesses under seizure mahazar conducted from 15 to 18 hours and on the basis of same, case came to be registered under Section 20(b) of the NDPS Act and further investigation was entrusted to COD.\n Panchanama was also conducted. Although efforts were made to search the absconding accused persons, they were not traced. On the basis of the said complaint, case was registered in Venoor police station Crime No.52/2008 for the alleged offences under Section 20(b) of the NDPS Act against accused Nos.1 and 2. The trial Court, after conclusion of trial and after appreciating the oral and documentary evidence placed on record, has ultimately convicted accused Nos.1 and 2 for the offences under Section 8(c) r/w Section 20(b)(ii)(c) of the NDPS Act, 1985. Being aggrieved by the judgment and order of conviction passed by the trial Court and also challenging the legality and correctness of the said judgment, appellants-accused Nos.1 and 2 have preferred the above appeals.\n 5. Heard the arguments of learned counsel appearing for appellant-accused No.2 in Crl.A.No.728/2013. Learned counsel has submitted that accused No.2 was not at the spot and only on the say of the informant he has been arrayed as one of the accused in the case. Learned counsel also submitted that the informant is not cited as witness and Section 42 of the NDPS Act is not complied with. The complainant himself has investigated the matter and filed the charge sheet, which is illegal and not sustainable in law. It is also further submitted that FSL officer is not examined in the case and the material seized is not ganja. It is also submitted that the oral and documentary evidence produced before the trial Court does not make out a prima facie case against accused No.2. Hence, he has submitted to allow the appeal and to acquit accused No.2. In support of his arguments learned counsel for appellant-accused No.2 has relied upon the following decisions: 1. 2013 (2) SCC 502 (Kishan Chand Vs. State of Haryana) 2. 2010 15 SCC 111(Central Bureau of Narcotics Vs. Bahadur Singh) 3. 2011 5 SCC 123 (Ashok @ Dangra Jaiswal Vs. State of Madhya Pradesh) 4. 2010 15 SCC 369 (State by Inspector of Police, NIB, Madurai, Tamil Nadu Vs. Rajangam).\n5. 2008 SCC 2 370 (Directorate of Revenue and another Vs.\nMohammed Nisar Holia) 6. 1982 1 SCC 700 (Mohanlal Gangaram Gehani Vs. State of Maharashtra) 7. 2009 9 SCC 709 (Ramesh Chnadra Agrawal Vs. Regency Hospital Limited and Others) 6. Learned counsel appearing for appellant-Accused No.1 in Crl.A.No.718/2013 submitted that complainant himself is the investigating officer in this case. No test identification parade is conducted to establish the identity of Accused No.1. He has also submitted that P.W.1 who is the independent witness turned hostile and not supported the prosecution case. It is also his submission ganja is not seized from the vehicles. With regard to the alleged information Section 42 of the NDPS Act is not complied with. There is no evidence on the prosecution side that the ganja was taken out from the vehicle. He has also submitted that accused were not known to prosecution witnesses and hence test identification parade was necessary. The trial Court without appreciating the oral as well as documentary evidence properly has wrongly convicted Accused No.1. As such, order of the trial Court is illegal and not sustainable in law. Hence, it is submitted to allow the appeal and to acquit Accused No.1 by setting aside judgment and order of the trial Court. In support of his arguments learned counsel for appellant-Accused No.1 has relied upon the following decisions: i. (2002) 7 SCC 419 (Avtar Singh and Others Vs. State of Punjab) ii. (2002) 15 SCC 369 (State by Inspector of Police, Narcotic Intelligence Bureau, Madurai, Tamil Nadu Vs. Rajangam) iii. (2010) 15 SCC 111 (Central Bureau of Narcotics Vs. Bahadur Singh) 7. Learned SPP during the course of his arguments submitted that Ex.P1 has been proved with cogent and satisfactory materials. The evidence of P.W.2 in the cross- examination clearly establishes identity of Accused No.1. It is also submitted that the document Ex.P21 produced during the course of trial shows that Section 42 of the NDPS Act has been complied with. Looking to the oral evidence of prosecution witnesses and the documents produced in the case, the prosecution has proved recovery of ganja from the vehicle belonging to the accused. It is also his submission that during the course of cross-examination of P.W.6, no suggestion has been made that the information received at the first instance was not reduced into writing. The accused have to establish what is the prejudice caused to them if the information received was not reduced into writing. There is no merit in the contention of the accused that Section 42 of the NDPS Act was not complied with and it vitiates the proceedings. The trial Court has properly considered both oral and documentary materials placed on record and rightly convicted the accused for the said offences. No illegality has been committed and hence, there is no merit in the appeals and the same may be dismissed.\n 8. I have perused the oral evidence of PWs-1 to 6 documents Exs. P-1 to P-28 and material objects M.Os.1 to 18.\nLet me refer to relevant portion in the evidence of prosecution witnesses.\n 9. PW-1/Mohan deposed in his evidence in the examination in chief that about 3 years back along with cw-1 and other, he went in their jeep to Venoor village in the afternoon.\nThere, they went to the house, where the Police have picked up the bags and transported them to the police station. Said bags were containing ganja. To the above effect writings, were made in the police station and he has signed the said document.\nDocument is Ex.P-1 and his signature is P-1(a). They have not witnessed the arrival of white Maruthi Omni along with motor cycle from Moodukodi Village side at about 2.30 p.m. He has not witnessed if the motorcyclists got down from his vehicle and was speaking to the driver of Maruti Omni van and at that time the police have apprehended them. He has not seen the present accused, who are present before the Court. He has not seen if there were 18 bags containing the ganja in the said Maruti van.\nThe said ganja was not weighed in the spot. However, seals were affixed in the police station. His statement was not recorded by the Investigation Officer in connection with the said incident. As the witness has not supported the case of prosecution, with the permission of the court, he got treated as hostile.\n 10. When cross examined by the P.P., PW1 denied all the suggestions put to him about the case of prosecution and the seizure of 18 ganja bags from the white Maruti Omni vehicle and conducting the mahazar at the spot as per Ex.P-1. He has also denied the suggestion that 17 bags are containing 10 kg of ganja and one bag containing 5 kg of ganja and totally 175 kg and 50 grams of ganja was taken from each bag for the purpose of sample. He also denied the suggestion that regarding the seizure of ganja he has given detailed statement before the police on 06.08.2008 as per Ex.P10. He denied the further suggestion that thereafter, on 06.01.2009 he gave further statement after identifying accused Nos.1 and 2 in the COD office at Mangalore as per Ex.P-11.\n 11. PW-2/M. Umesh Shetty, ASI, Punjalkatte P.S. has deposed in his evidence in the examination in chief that during the month of August 2008, he was working as head Constable in Narcotic Drugs Cell, COD Mangalore. At that time, Sri. M H Umesh/C.W-1 was the police Inspector of their unit. On 05.08.2008 when he was in the office, CW-1 informed him at 5.30 p.m. from Bangalore, that accused No.1 is making preparations for the sale of Ganja at Moodukodi village and also asked them to be ready for conducting the raid on 06.08.2008 as accused No.1 was trying to transport it. He further told that he has taken permission from the Dy.S.P. of NDC in writing and leaving Bangalore during the night and he came to the office in the Morning. Therefore, they kept their departmental jeep ready for the said raid. On 06.08.2008, CW-1/M.H.Umesh came along with Devaraj, Head Constable/CW-7, who was brought from Bangalore. At that time, they had also secured Panchas and they were introduced to CWs-1 and 7 and also to the other police officials and requested them to act as panchas and notices were also issued in that regard. Thereafter, on 06.08.2008 at about 11.30 a.m. along with CW-1/M.H.Umesh, panchas, CW-7 and others left the office in their departmental jeep. Thereafter, at about 2.30 p.m they reached near Moodukodi village of Belthangady Taluk. In the mean while, one white Maruti Omni van was coming on the mud road followed by one black Yamaha motor cycle. Maruthi Omni van was stopped by its driver.\nThereafter, the rider of motor bike has also stopped his vehicle in the hind side. Thereafter rider of motorcycle came to Maruti Omni van and sat in the front seat of the vehicle. They observed those things and the informants intimated about the identity of those two persons as Laxmana Poojary and Dinesh @ Harish i.e., accused No.1 and 2. Now he has seen both the persons, who are present before the Court as the accused. They went and surrounded the said vehicles to apprehend them but they jumped out of the vehicle and escaped towards paddy fields, though they requested them not to ran away from the spot. Thereafter, along with panchas, they returned back. When they inspected Maruti Omni van they found 18 polythene bags. In the presence of panchas, the bags were opened and on the basis of the smell, they found that they were containing ganja. CW-1 asked him to secure the weighing balance from a petty shop and he brought the weighing balance. 17 bags were weighing about 10 Kgs each of ganja and the remaining bag was weighing about 5 Kgs of ganja.\nFrom each bag, they took 50 grams of ganja for sample purposes.\nThey were separately packed and covered with white cloth and stitched. They were sealed with the letters `NDC'. Chits containing the signature of panchas were also affixed, for having seized the ganja. Vehicle mahazar was drawn in between 3.00 p.m to 6.00 P.M as per Ex.P-1 and his signature is P-1(b). He identified the Maruti Omni van and the motorcycle in the photos already marked as Ex.P-2(a) to P-9(a) and their negatives prints are at Exs.P-2 to P-9. He also identify the sample sealed packets, which were opened in the open Court at M.Os.1 to 18. He has seen 18 polythene bags containing ganja, same were seized from the vehicle, which were kept in the bag and they were M.Os.1(a) to 18(a). These bags contained ganja and on the basis of the smell they can say that they are ganja.\n 12. In the cross examination by the advocate for Accused No.1, P.W.2 has deposed that prior to the incident, he was knowing accused No.1/Laxman Poojary, as he was working in Venoor P.S. earlier. In their NDC office at Mangalore, he has not reduced the information given by CW-1 at Mangalore in writing. Accused No.1 is having the house at Moodukodi village at a distance of 7-8 kms from Venoor Police Station. He denied the suggestion that mahazar was prepared in the police station. He denied the suggestion that they have not at all witnessed the accused at that time and is deposing falsely that they escaped from the spot by leaving their vehicles. He denied the further suggestion that none of the articles were found and seized from the vehicle. The then ASI of their office had received the phone call from CW-1 at 5.30 p.m on 05.08.2008. However, he did not speak to him on the phone but on the next day he spoke to him.\nCW-1/M.H.Umesh informed over the phone to secure two panchas. He also informed CW-1 regarding the identity of accused No.1 when he escaped from the spot. When he was running away, he intimated CW-1 that said person is Laxman Poojary. The other Police officials were unaware about the identity of accused No.1 then. In the cross examination by advocate for accused No.2, PW-2 has denied the suggestion that accused No.2 was not present in the spot and he did not come to the spot in the motorcycle and accused No.2 was not present in the vehicle.\n 13. PW-3/Manju, retired PSI, deposed in his evidence in examination chief that during the month of August 2008, he was working as PSI at Venoor Police Station. On 06.08.2008 at about 11.00 p.m. C.W-1/M.H.Umesh had appeared in the police station and produced written report, panchanama and 17 polythene bags containing 10 Kgs. of ganja each and one polythene bag containing 5 Kgs. of ganja and also 18 small sealed pockets containing ganja weighing about 50 grams each, took out for samples and the Maruti Omni car bearing registration No.KA-19- M-4775 and the motor cycle bearing registration No.KA-19-H- 3703. On the basis of the above materials, he has registered a case in his P.S. in Crime No.52/2008 of Venoor police station under Section 20(b) of NDPS Act, 1985. Thereafter, he has transmitted the FIR and the report to the Special Court through women constable Smt.Vanaja/CW-9. FIR is Ex.P-16 and his signature is P-16(a). Report submitted by CW-1 is Ex.P-17 and his endorsement with signature is P-17(a). Panchanama is already marked as Ex.P-1. Thereafter, he has subjected the seized properties to P.F. No.31/2008 on 06.08.2008. On 11.08.2008 he handed over the further investigation to CW-1/M.H.Umesh along with the report and seized properties and connected materials.\n He has seen M.O.s-1 to 18 and corresponding M.O.s-1(a) to 18(a). He can identify the vehicles, if shown to him. He has seen the photos Ex.P-2 to P-5 and P-6 to P-9 in respect of seized vehicles. However, accused No.1 and accused No.2 were not produced by CW-1 at that time but they had appeared before him after obtaining the orders of anticipatory bail from the Court.\nTherefore, he had seen them and he identified both accused, who are present before the Court.\n 14. In the cross examination by learned counsel for accused No.2, P.W.3 has deposed that before submitting the report, CW-1 had not sent any information to him over phone.\nThere is a distance of about 6 kilometers between Venoor P.S.\nand Moodukodi village.\n 15. PW-4/Devaraju, ASI, deposed in his evidence in the examination in chief that during the year 2008, he was working as Head Constable in Narcotic Drugs Cell, COD, Bangalore. At that time, M.H.Umesh/CW-1 was working as Police Inspector in NDC, COD, Bangalore. On 05.08.2008 at about 4 P.M., CW-1 called him and informed him about the receipt of credible information from the informant at Mangalore stating that, Laxman Poojary/accused No.1 has stored the Narcotic in his house at Moodukodi village and he is proceeding to dispose off the same on the next day and asked him to accompany him immediately to Belthangady. CW-1/M.H.Umesh informed the superior officers in writing about the credible information and obtained permission to raid. He has also informed their staff in Mangalore office about it and also intimated that he would arrive at Mangalore on the next day. Therefore, during night they left Bangalore in a Bus and came to Mangalore at about 7 a.m. and went to the office at 7.30 a.m. CW-1 introduced themselves to the staff and also to the two panchas. Thereafter, on the very same day at 11.30 a.m. they went in their departmental jeep bearing registration No.KA-01-4241 to Moodukodi village at Belthangady Taluk. They reached at about 1.30 P.M. and the informant met them in the said village. They went inside the said village to the extent of half kilometer and parked their jeep and then they were watching by concealing themselves. At about 2.30 p.m. in the said spot one white Maruti Omni van came there followed by the bike. The informant told them that in the said van, ganja is being transported and the van is driven by its owner Sri.Laxman Poojary/ accused No.1. It was also informed that the rider of motor cycle was one Mr.Dinesh/accused No.2. Then they went near the house of accused No.1 and parked the said vehicles. Accused No.2 went inside the Maruti van and sitting by the side of driver's seat, they were talking to each other. The informant went away. In the meanwhile, Police Inspector along with their staff and panchas surrounded the said vehicles. On seeing, both of them started running on a kachcha road to escape from the spot. Though they asked them not to escape, they did not do so, but ran away. Now he has seen both the persons, who are present before the Court and he identified them. Then they returned back and on search in the van, found 18 polythene bags.\nWhen opened the bags, they found ganja. Then same was weighed and there were 17 bags each weighing 10 kg and 1 bag weighing 5 kg. Totally, it was 175 kg of ganja. From each bag, they took 50 grams for sample purpose. Ganja packets were seized under the mahazar Ex.P-1. His signature is Ex.P-1(c). The seized articles are M.O.s.1 to 18 and samples are M.O.s.1(a) to18(a). Ex.P-2 to P-5 are the photos in respect of Omni Van and Exs.P-6 to P9 are photos in respect of motorcycle.\n 16. In the cross examination by the learned counsel for accused No.1, PW-4 has deposed the Inspector/CW-1 informed him about the credible information in the COD office at Bangalore, said to be received from the informant. Other than the panch witnesses and Police officials, private persons were not accompanied them. This information was written or not, known to Police Inspector. Before his visit there, he was not acquainted with anybody from the said village. They did not make any attempts to secure local persons as the panch witnesses. He denied the suggestion that they have not gone to the spot and not seized the ganja or vehicles and accused are in no way related to M.Os. 1 to 18 and M.Os.1(a) to 18(a). He denied the suggestion that they have not seen accused Nos.1 and 2 at that time and deposing falsely that they escaped from the spot 17. PW-5/Chndramma, Tahasildar, deposed in her evidence in the examination in chief that during the year 2008 accused No.2 was working on temporary basis as a Grama Sahayak. Before she took charge in the said office, accused No.2 was entrusted with the duty of driving their departmental jeep.\nOn 06.08.2008 accused No.2 requested her to grant leave on the ground that he was sick. However, as there was a meeting pertaining to elections of Kannada Sahyithya Parishad, she asked him to avail on the afternoon. On the next day i.e., on 7.08.2008, he came to attend the duty and accordingly, he drove the jeep to Hassan along with them. After completing the meeting at about 3.00 p.m, they were returning back to Belthangady. When they reached Dharmasthala, accused No.2 started telling that he was unable to drive the jeep as he was suffering from ill-health.\nAccused No.2 told that he would make an alternate arrangement by getting a driver of his choice and thereafter, he secured one driver and thereafter, accused No.2 went away. In the meanwhile, the substituted driver drove the jeep and they came to their house.\nThereafter, she made enquiries about the accused with Police and found that he was involved in the case pertaining to NDPS Act.\nNDPS Squad have sought for extract of attendance register for the month of August 2008, and accordingly, she had issued the true copy of the extract to the Police Inspector, Narcotic Drugs Cell, COD Bangalore. It is Ex.P-18 and her signature is P18(a).\nIn the said extract, on 7th, it is shown as duty to Hassan. She addressed letter to Police Inspector, NDC, COD, Bangalore on 19.08.2008 as per Ex.P-19 and P-19(a) is her signature. As accused No.2 was involved in the offence under the NDPS Act and as he was a temporary employee, she removed him from service in the public interest by an order dated 8.08.2008 as per Ex.P-20. Now she has seen accused No.2 present before the Court.\n 18. In the cross examination by learned counsel for accused No.2, PW-5 has deposed that they maintained the attendance register in their office. As per the attendance register extract, accused No.2 has worked on 06.08.2008. They have not issued any notice to accused No.2 for his removal from the office, since he was a temporary employee. In Ex.P-20, there is no mention about the leave on 06.08.2008.\n 19. PW-6/M.H.Umesh, Police Inspector, deposed in his evidence in the examination in chief that from 26.06.2008 to 8.07.2009,1 he was working as Police inspector of NDC, COD at Bangalore. On 05.08.2008, when he was in office at Bangalore, at about 4 p.m. he received a phone call from their informant at Mangalore stating that, on 06.08.2008 at Moodukodi village, accused No.1 is trying to dispose of ganja in his vehicle and if he arrive at the spot, then he would show him. Therefore, he mentioned the receipt of said information in separate register kept in their office for the said purpose. He has also intimated the said fact to his Dy.S.P. and obtained his permission to conduct the raid. He has seen written information submitted to Dy.S.P of NDC, COD cell Bangalore as per Ex.P-21 his signature is P-21(a).\n Permission given by Dy.S.P. is Ex.P-22. The extract of register in form No.3 is Ex.P-23. He has also deposed in further examination in chief, in detail, about the investigation conducted, going to spot along with panchas and the staff and seizing the ganja bags from the white Maruti Omni van and conducting the weighment and seizing the ganja bags under the mahazar Ex.P-1.\nHe further deposed that at 11.00 p.m. on 06.08.2008, they retuned back to Venoor Police along with seized articles and mahazar and he submitted his report as per Ex.P-17 to the PSI of Venoor Police Station to register the case for further investigation and his signature is P-17(b). On 7.08.2008 at 1.15 a.m., he informed his superior officers about seizure of ganja and the vehicles through wireless message. It is as per Ex.P-25 and his signature is P-25(a).\nHe has also submitted the written detailed report regarding the raid as per Ex.P-26 and his signature is P-26(a). On 11.08.2008, he was directed by the S.P. of NDC to proceed with further investigation. The said memo is Ex.P27 and for having received the same, he put his signature as per P.27(a). On 13.08.2008 he sent M.Os.1(a) to 18(a) to FSL at Bangalore for chemical analysis.\n On 16.08.2008, he secured B extract, from the RTO Puttur, in respect of seized Maruti Omni van bearing No.KA-19-M-4775 as per Ex.P-12. So also in respect of two wheeler vehicle as per Ex.P-13. On 15.09.2008, he received FSL report as per Ex.P-14.\nOn the very day, he has also recorded the statement of Sallapurayya CW-10. On 9.04.2009, as he has completed the investigation, he submitted the charge sheet. PW-1 stated before him as per Ex.P10 and 11.\n 20. In the cross examination by advocate for Accused No.1, PW-6 has deposed that immediately after the receipt of information at about 4.00p.m, he made the entries in the register.\nHe has not sent the extract of said register to his superior officer and the same is produced along with charge sheet. He denied the suggestion that subsequently, he has created Exs.P-21 to P-23.\nThe place of offence is at the distance of about 50 to 60 kms from their office at Mangalore. Before arrival to the place of raid, he did not intimate the said fact at Venoor police station. He denied the suggestion that accused have not given any voluntary statement before him, and also denied the further suggestion that he has not received any credible information in the matter.\n 21. During the course of argument, it is the contention of learned counsel for the accused that regarding the receipt of the credible information is concerned, Section 42 of NDPS Act is not complied with. Section 42 (2) of NDPS Act reads as under: Section 42. Power of entry, search, seizure and arrest without warrant or authorization.\n (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.\n 22. Therefore, looking to the said provision, the requirements of said provision are that the information so received as per Section 42(1) of the Act is to be reduced into writing and as per the proviso to Section 42(1) regarding his belief for the necessity for the search, seizure and the arrest of the persons within 72 hours, complainant has to send the said information to his superior officers.\n 23. But looking to the materials placed on record, it shows that the prosecution has not complied with the mandatory provision of Section 42(2) of NDPS Act. The person, who said to have been received the information at the first instance from the informant is PW-6/M.H.Umesh, Police Inspector. Perusing his evidence in the cross-examination, he has clearly mentioned that he has not sent the extract of said register to his superior officer.\n 24. During the course of arguments, learned counsel for accused No.1 has also drew the attention of this Court to ground No.(b) in para No.3 of the appeal memorandum, which reads as under: (b) In the course of investigation, accused were granted anticipatory bails per order dated 17.10.2008 by the Court of Principal Sessions Judge, D.K. Mangalore. In the said orders of anticipatory bail, it was noted as under: \"On the material available on record, at this stage, as per the case of the prosecution, it is clear that eighteen polythene bags containing ganja were found in white omni van bearing No.KA-19-M- 4775. No material whatsoever is forthcoming at this stage to show as to whether the said vehicle is a private vehicle or a public vehicle. The mere fact that ganja was found in the said vehicle, which was on the public road, at this point of time, cannot lead to any inference that the seizure has been effected in a public so as to attract the provisions of Section 43 of Narcotic Drugs and Psychotropic Substances Act, 1985 to the case. Recovery of contraband article from a conveyance is attracting provisions of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Though the complaint and the mahazar refers in detail about the fact of the case, at this stage, even by looking into the case diaries produced it is not forthcoming about the complainant reducing the information received by him into writing and about sending copy of the said information to the superiors. \"\n 25. From the original records secured from the trial Court, I have also perused the order passed by the Prl. Sessions Judge, Dakshina Kannada dated 17.10.2008 passed in Crl.Misc.Nos.495 and 497 of 2008 and get it confirmed about the observation made by the Sessions Judge while granting bail to accused Nos.1 and 2. When case diary was produced before the Court for reference to the Court while passing the bail order and as per the contention of prosecution, the information received was immediately reduced into writing and the same was sent to the superior officers of PW-6 within 72 hours. If there was compliance of Section 42 of the NDPS Act, then the same could have found place in the case diary produced in the Sessions case.\nPW-6 has clearly admitted that he has not sent the information to the superior officers. But perusing the materials on record, it not only indicates about non-sending of information to the superior officers, but also the said information was not reduced into writing.\n 26. During the course of cross-examination of PW-6, it is the specific suggestion made by the learned counsel for the accused that Exs.P-21 to P-23 were created subsequently.\n 27. Perusing the materials on record and also the decisions relied upon by the learned counsel for the accused, which are referred above, it probabilises the defence of the accused that there is non-compliance of Section 42 of NDPS Act.\n 28. In this case, another legal contention of the learned counsel for the accused is that PW-6/M.H.Umesh, Police Inspector, is the complainant of this case and he himself proceeded with the further investigation of the case from 11.08.2008 and after completing the investigation, he submitted the charge sheet. Therefore, the contention of the defence is that, it is not fair on the part of complainant himself to proceed with the investigation of the case and to file charge sheet in the matter.\nIt is no doubt true, perusing the judgment and order passed by the Trial Court, it has been observed that though the complainant himself had proceeded with the investigation, but that itself will not disentitle him to proceed with investigation, unless, it is shown that the accused have been prejudiced by such act.\n 29. I have perused the decision relied upon by the leaned counsel appearing for the accused, reported in (2010) 15 SCC 369. Persuing the said decision, Their Lordships of Hon'ble Supreme Court have laid down the proposition as under : \"Narcotic Drugs and Psychotropic substances Act, 1985 Ss.42, 44, 53, 56, 57, 67 and 68 Investigation by the very officer who registered crime Reiterated, not conducive to fair and impartial investigation Hence, reversal of conviction, upheld 5 kg opium recovered from accused Accused was convicted by Special Judge and was sentenced to 10 years' RI with a fine of Rs.1,00,000 - Officer, who had registered crime, also investigated the said crime Hence, held, High Court was justified in acquitting accused Criminal Procedure Code, 1973, Ss.156 and 161.\"\n 30. Therefore looking to principle enunciated in the said decision, it shows that the procedure adopted by PW-6 complainant in lodging the complainant, and he himself proceeding with the investigation of the case, is not fair on his part.\n 31. It is the prosecution case that on 06.08.2008 both accused Nos.1 and 2 were involved in committing the alleged offence and both were seen at the spot. But looking to prosecution materials placed before the Trial Court so also looking to evidence of PW-5/Smt.Chandramma, the Tahasildar, they shows that, not only as per the oral evidence of PW-5 but even according to the document Ex.P-18/ attendance register extract, on 06.08.2008 accused No.2 worked in the office of PW-5. Even on the next day i.e., on 7.08.2008 he worked up to noon time. This evidence of PW-5 and the document Ex.P-18/attendance register extract goes to falsify the story of prosecution that accused No.2 was seen along with accused No.1 at the spot and when the Police surrounded them, both of them ran away from the said place.\n 32. The independent witness PW-1, who is said to be the panch witness, has not supported the prosecution case with reference to presence of accused Nos.1 and 2 at the spot and after seeing the Police, they ran away from the said place. It is true that as per the evidence of other official witnesses, they have stated that accused were present at the spot and after seeing them, they ran away. But it has come in the evidence of PW-2 that PW-2 knew Laxman Poojary/accused No.1 as he was working in Venoor Police Station earlier and that other Police Officers were unaware about the identity of accused No.1 then. Perusing this evidence of PW-2, so far as accused No.2, is concerned absolutely, there is no material regarding his identification at the spot. Even with regard to accused No.1 also, only on the basis of evidence of PW-2 and in the absence of corroboration from the independent witnesses, it is difficult for this Court to come to the conclusion that identity of accused No.1 was established to the satisfaction of the Court.\n 33. No test identification parade was conducted to establish the identity. It is the prosecution case that the witnesses had identified accused Nos.1 and 2 when they appeared in the Police Station along with an application for anticipatory bail, which is not the identification, as required under law.\n 34. Regarding the seizure of ganja under Ex.P-1 mahazar, the only independent panch witness examined in the case is PW-1. He has not supported the prosecution case. It is true he went along with raiding party to Venoor and he signed Ex.P-1 mahazar and only on that basis, the trial Court has held that he has admitted the seizure under Ex.P-1. But looking to oral evidence of PW-1, he deposed that after going to Venoor and to the house, the Police have picked up ganja bags from the shed of the house and brought them to Police Station and writings were made in the Police Station. So, it is not his evidence that ganja bags were seized from white colour Maruti Omni van and the panchanama was written at the spot in his presence. By treating him hostile though the prosecution suggested him about the seizure of ganja bags from the Maruti Van and thereafter, conducting the mahazar proceedings at the spot and drawing the mahazar Ex.P1 at the spot, he denied all those suggestions. Therefore, looking to his evidence, it cannot be taken that the prosecution proved the mahazar proceedings satisfactorily. The other evidence regarding the seizure of ganja and writing Ex.P-1 mahazar, they are all the official witnesses. Though there was another independent witness CW-3, he has not been examined by the prosecution to prove the seizure proceedings.\n 35. In view of my above discussion and the infirmities in conducting the investigation by the Police, it is difficult to accept their evidence and to say that the seizure mahazar proceedings have been established satisfactorily and their evidence in that regard is worth believable.\n 36. As per the prosecution case, ganja was seized on 06.08.2008 and then it was brought to the Police Station, produced before the SHO along with the report of PW-6.\n Looking to the evidence of PW-6, he deposed that the seized ganja sample was sent to FSL on 13.08.2008 i.e., after the lapse of seven days. But during the period of seven days, absolutely no evidence was placed by the prosecution as to where this ganja was kept, how it was kept, whether anybody was deputed to keep watch in respect of the said ganja. Perusing the oral evidence of prosecution witnesses, none of them have deposed about the manner in which, and the place at which, the ganja was kept during this interval period of seven days and who are the persons, under whose care and custody, the ganja was kept, who are the persons handled the ganja during that period. Though PW-6 has deposed in his evidence that he sent the samples on 13.08.2008 for chemical analysis, the covering letter for sending the sample ganja to the FSL is not produced. The person, who carried the articles to FSL i.e., CW.-10 Sallapurayya, HO, COD is also not examined before the Court, so also nobody is examined from the FSL. Learned counsel for the accused No.2 has relied upon the decision of the Hon'ble Supreme Court reported in AIR 2011 SC 1335 (1) in the case of ASHOK ALIAS DANGRA JAISWAL V.\n STATE OF M.P. In para No.11 of the said decision Their Lordships have observed as under: \"11. The FSL report came on March 21, 2005, and on that basis the police submitted charge- sheet against the accused on March 31, 2005, but the alleged narcotic substance that was seized from the accused including the appellant was deposited in the Malkhana about two months later on May 28, 2005, there is no explanation where the seized substance was kept in the meanwhile.\"\n 37. Therefore, the Trial Court has not taken into consideration all these aspects while appreciating the case on hand and wrongly proceeded to hold that prosecution proved its case against accused Nos.1 and 2 and wrongly convicted them. The judgment and order of conviction passed by the Trial Court is not in accordance with oral and documentary evidence, which I have discussed above. Hence, the judgment and order of the trial Court is not sustainable in law. There arises reasonable doubt as to the case of prosecution and prosecution materials will not prove the case beyond all reasonable doubt, hence, the benefit of doubt will have to be given to the accused.\n 38. Accordingly, both the appeals are allowed. The judgment and order of conviction dated 11.7.2013 passed by the Principal Sessions and Special Judge, Dakshina Kannada, Mangalore in Spl.Case No.8/2009, which is challenged in these appeals is set-aside. The appellants/accused Nos.1 and 2 are acquitted of the charges leveled against them and they are set at liberty.\n In view of allowing the appeals, I.A.Nos.1/2013 and 1/2014 filed in Crl.A.728/2013 and I.A.No.1/2013 filed in Crl.A.718/2013 are disposed of.\n Sd/- JUDGE Bkp/BSR "
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],
"start": 2648,
"text": "],\n VII"
}
},
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"text": "Additional District Judge, Mysuru."
}
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"text": "\n\n JUDGMENT\n "
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"start": 2765,
"text": "The Appellant in R.A.249/2015 has filed the appeal questioning the correctness and legality of the judgment and decree dated 31.08.2015 in O.S.No.546/2007 on the file of Court of Principal Judge, Small Causes and Senior Civil Judge, Mysuru."
}
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"text": "\n The Appellant in R.A.250/2015 has filed the appeal questioning the correctness and legality of the judgment and decree dated 31.08.2015 in O.S.No.471/2009 on the file of Court of Principal Judge, Small Causes and Senior Civil Judge, Mysuru."
}
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"start": 3249,
"text": "2. The appellant in both the cases was the Plaintiff in O.S.546/2007 and Defendant in O.S.471/2009."
}
},
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"text": "Both suits were disposed by common judgment dated; 31.08.2015."
}
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"text": "For the sake of brevity, parties are addressed as per their rank in O.S.546/2007."
}
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"text": "\n Facts in brief: 3."
}
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"start": 3514,
"text": "The parties to the lis are brothers and children of late Neelappa Shetty."
}
},
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"start": 3588,
"text": "He had bequeathed the suit schedule property in favour of both his children under registered `Will dated 18.03.1997, but had created life interest in favour of his wife."
}
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"text": "\nBoth their parents are no more and hence they are in joint possession of the suit schedule property as co-owners."
}
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"text": "\nDefendant had filed H.R.C 120/2006 on the file of Principal Civil Judge (Jr.Dn), Mysuru for ejectment against the plaintiff from the suit schedule property and in that case, he claimed that their father had executed `Will' on 16.04.2003 bequeathing the entire property to the Defendant."
}
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"text": "The said `Will' is a sham document and no such `Will' was executed by their father."
}
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"start": 4243,
"text": "He is having share in the suit schedule property and when demanded to effect partition, Defendant had denied the same."
}
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"text": "Hence, he filed suit for partition and separate possession of his share."
}
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"text": "4. Defendant filed written statement admitting the relationship with the Plaintiff."
}
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"text": "He had also admitted that their father Neelappa Shetty had executed `Will' on 18.03.1996."
}
},
{
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"text": "It was his case that the said `Will' was not in force as the same was cancelled by his father during his life time."
}
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],
"start": 4728,
"text": "The Plaintiff had relinquished his right over the suit schedule property by receiving Rs.1,25,000/- from his father and had executed a document to that effect on 22.12.2003."
}
},
{
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"text": "As such, his father after canceling the earlier `Will' had bequeathed the entire property in his favour."
}
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{
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"end": 5144,
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],
"start": 5007,
"text": "The Plaintiff was inducted as a tenant in the 2nd floor on a monthly rent of Rs.750/- and hence he had filed H.R.C.120/2006 for eviction."
}
},
{
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"end": 5251,
"labels": [
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],
"start": 5145,
"text": "He is the absolute owner of the entire suit property and as such Plaintiff is not entitled for his share."
}
},
{
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"labels": [
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],
"start": 5252,
"text": "Therefore it was prayed to dismiss the suit."
}
},
{
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"end": 5446,
"labels": [
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],
"start": 5298,
"text": "5. Subsequently, Defendant filed O.S.471/2009 against the Plaintiff taking the aforesaid contentions in his written statement filed in O.S.546/2007."
}
},
{
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"end": 5577,
"labels": [
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],
"start": 5447,
"text": "In that case, written statement came to be filed by the Plaintiff pleading similar facts as to what he had stated in O.S.546/2007."
}
},
{
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"end": 5729,
"labels": [
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],
"start": 5579,
"text": "6. By virtue of the aforesaid pleadings, the Learned Civil Judge had framed the following common Issues in both the suits: - ISSUES IN O.S.546/2007 1."
}
},
{
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"id": "5a5b243be6a441098582e74c537fdd01",
"to_name": "text",
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"value": {
"end": 5870,
"labels": [
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],
"start": 5730,
"text": "Whether the Plaintiff proves that Plaintiff and Defendant are joint co- owners of the suit schedule property as per `Will' dated 18.03.1997?"
}
},
{
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"id": "72c1a748fdba4e43ab3822b57044320f",
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"end": 6200,
"labels": [
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],
"start": 5872,
"text": "2. Whether Defendant proves that Neelappa Shetty was cancelled `Will' dated 18.03.1997 and he was executed `Will' dated 16.04.2003 bequeathing the plaint schedule property in favour of the Defendant?\n 3. Whether Court Fee paid by the Plaintiff is insufficient?\n 4. Whether Plaintiff is entitled for the relief as prayed for?\n 5."
}
},
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"labels": [
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],
"start": 6201,
"text": "What Order or Decree?"
}
},
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],
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"text": "\n ISSUES IN O.S.471/2009 1."
}
},
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"value": {
"end": 6356,
"labels": [
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],
"start": 6257,
"text": "Whether the Plaintiff proves that he is the absolute owner in possession of suit schedule property?"
}
},
{
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"id": "87f2f175a98248ee8798c1bd2e5def4a",
"to_name": "text",
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"value": {
"end": 6463,
"labels": [
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],
"start": 6356,
"text": "\n 2. Whether the Plaintiff proves that the Defendant is in permissive possession of suit schedule property?"
}
},
{
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"id": "b2f85c8f90714b5fb28aa45739f3c5d2",
"to_name": "text",
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"end": 6577,
"labels": [
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],
"start": 6465,
"text": "3. Whether the Defendant proves that the Plaintiff and Defendant are joint owners of the suit schedule property?"
}
},
{
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"id": "cdf1dba67ecb45d8a2fc07d4a5d28638",
"to_name": "text",
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"value": {
"end": 6676,
"labels": [
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],
"start": 6579,
"text": "4. Whether the Plaintiff proves that he is entitled for possession of the suit schedule property?"
}
},
{
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"id": "59857b98dfbe4abb99ed64fbc1bc6d62",
"to_name": "text",
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"value": {
"end": 6740,
"labels": [
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],
"start": 6676,
"text": "\n 5. Whether the Plaintiff is entitled for the relief as prayed?"
}
},
{
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"id": "48ff933cef6e4adc931da0d177b68679",
"to_name": "text",
"type": "labels",
"value": {
"end": 6766,
"labels": [
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],
"start": 6742,
"text": "6. What Order or Decree?"
}
},
{
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"id": "9d28ad90f61b4b95ae0ea7f7978e7033",
"to_name": "text",
"type": "labels",
"value": {
"end": 6902,
"labels": [
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],
"start": 6768,
"text": "7. In order to substantiate the plaint averments, the Plaintiff examined him as P.W.1 and got marked seven documents as Ex.P.1 to P.7."
}
},
{
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"id": "7a41db83dffc4faab3f6fca9ca41be15",
"to_name": "text",
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"value": {
"end": 7060,
"labels": [
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],
"start": 6903,
"text": "Per contra, Defendant examined him as D.W.1 and examined two witnesses as D.Ws.2 and 3.\nFourteen documents in all came to be marked as Ex.D.1 to Ex.D.14.\n 8."
}
},
{
"from_name": "label",
"id": "8e85eab7c37247858aa98394bbf0abf9",
"to_name": "text",
"type": "labels",
"value": {
"end": 7186,
"labels": [
"FAC"
],
"start": 7061,
"text": "Since common evidence came to be recorded, both the suits came to be disposed by common judgment and decree dated 31.08.2015."
}
},
{
"from_name": "label",
"id": "d2da43b65501446db40075cac44d7e74",
"to_name": "text",
"type": "labels",
"value": {
"end": 7321,
"labels": [
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],
"start": 7187,
"text": "The suit of the Plaintiff in O.S.546/2007 came to be dismissed and the suit filed by the Defendant in O.S.471/2009 came to be decreed."
}
},
{
"from_name": "label",
"id": "a7bc3d9ce49a46ed9eaa9e68c340c790",
"to_name": "text",
"type": "labels",
"value": {
"end": 7487,
"labels": [
"FAC"
],
"start": 7322,
"text": "The Plaintiff was directed to vacate and hand over vacant possession of portion of suit property to the Defendant within 3 months from the date of the said judgment."
}
},
{
"from_name": "label",
"id": "e3a1c55392e546798ad42dee3e227278",
"to_name": "text",
"type": "labels",
"value": {
"end": 7655,
"labels": [
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],
"start": 7487,
"text": "\n 9. Aggrieved by the judgment and decree passed in both the suits, the Appellant has come before this Court urging the following common grounds in both the appeals : -"
}
},
{
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"id": "5185a1e514c44e1d97bc1285de2cf8c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 8005,
"labels": [
"ARG_PETITIONER"
],
"start": 7656,
"text": "The Learned Trial Judge had erred in giving finding to Issue No.1 as Negative that Plaintiff and Defendant are not joint owners of the suit schedule property as per Will dated 18.03.1997, even though the Appellant /Plaintiff proved the Will and further the Defendant himself has admitted the same at the time of passing impugned judgment and decree."
}
},
{
"from_name": "label",
"id": "e8a82f7dabde4e3b99a817375f9f5a17",
"to_name": "text",
"type": "labels",
"value": {
"end": 8322,
"labels": [
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],
"start": 8005,
"text": "\n The Learned Trial Judge further erred in giving finding as Affirmative to Issue No.2 that Neelappa Shetty had cancelled the Will dated 18.03.1997 and he has executed Will dated 16.04.2003 bequeathing the plaint schedule property in favour of Defendant, even though the alleged Will dated 16.04.2003 is doubtful one."
}
},
{
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"id": "0bf2484cac094cf0943083d2bc3ea7c1",
"to_name": "text",
"type": "labels",
"value": {
"end": 8571,
"labels": [
"ARG_PETITIONER"
],
"start": 8322,
"text": "\n The Learned Trial Judge further erred in not taking into consideration of the fact that the intention of the father of Plaintiff and Defendant was to give suit schedule property equally to the plaintiff and Defendant and not only to the Defendant."
}
},
{
"from_name": "label",
"id": "1d6170729f9a4bb3b87590aa5b7e4f0d",
"to_name": "text",
"type": "labels",
"value": {
"end": 8911,
"labels": [
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],
"start": 8571,
"text": "\n The Learned Trial Judge further at the time of passing impugned judgment and decree erred in not taking into consideration of the fact that the evidence of D.W.1 i.e, Defendant and during the course of cross-examination there is lot of contradictions in his evidence about the execution of Will was shrouded with suspicious circumstances."
}
},
{
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"id": "70fe4a400bd34d5ba05ab1010a5f56c0",
"to_name": "text",
"type": "labels",
"value": {
"end": 9341,
"labels": [
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],
"start": 8913,
"text": "The Learned Trial Judge further erred in believing the evidence of D.W.2 and 3 they are alleged to be attestors of the alleged `Will' even though there are lot of contradictions in their evidence.\n The Learned Trial Judge erred in believing and taking into consideration of Ex.D.1 alleged to be Release Deed executed by the Plaintiff, even though that document is not at all admissible in evidence as it is a unregistered one.\n "
}
},
{
"from_name": "label",
"id": "d005d38527ea468d843204817a7c6cc9",
"to_name": "text",
"type": "labels",
"value": {
"end": 9591,
"labels": [
"ARG_PETITIONER"
],
"start": 9341,
"text": "The Learned Trial Judge further erred in not giving opportunity to the Plaintiff to lead further evidence during the course of trial even though the Plaintiff/Appellant made several applications seeking permission from the hands of the Hon'ble Court."
}
},
{
"from_name": "label",
"id": "0347f4fb33c84af6bfcfe82e70da4d3e",
"to_name": "text",
"type": "labels",
"value": {
"end": 9823,
"labels": [
"ARG_PETITIONER"
],
"start": 9593,
"text": "Viewed from any angle, the impugned judgment and decree passed by the Learned Civil Judge is capricious one and erroneous one in the eye of law and same is liable to be set aside by this Hon'ble Court by interfering with the same."
}
},
{
"from_name": "label",
"id": "fd9e446e10134bc49ae10b0c65d555e4",
"to_name": "text",
"type": "labels",
"value": {
"end": 9909,
"labels": [
"ARG_PETITIONER"
],
"start": 9823,
"text": "\n Therefore, he prays to set aside common judgment and decree by allowing the appeals."
}
},
{
"from_name": "label",
"id": "95981f876f5c43f5b6c16ef48030250d",
"to_name": "text",
"type": "labels",
"value": {
"end": 9996,
"labels": [
"ARG_PETITIONER"
],
"start": 9910,
"text": "Inter-alia, he has prayed to decree his suit in O.S.546/2007 and dismiss O.S.471/2009."
}
},
{
"from_name": "label",
"id": "b5a8dab878f14da0b04270df71da6156",
"to_name": "text",
"type": "labels",
"value": {
"end": 10280,
"labels": [
"ISSUE"
],
"start": 9998,
"text": "10. By virtue of the above facts and circumstances the common points that would arise for my consideration are:- 1. Whether the impugned common judgment and decree of the lower court is opposed to law, facts and circumstances of the case and interference of this court is necessary?"
}
},
{
"from_name": "label",
"id": "5f5063732e6e461fbf28157902e5d691",
"to_name": "text",
"type": "labels",
"value": {
"end": 10296,
"labels": [
"ISSUE"
],
"start": 10280,
"text": "\n 2. What Order?"
}
},
{
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"id": "d51bc271e3ee474caaef3e14af7621dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 10409,
"labels": [
"NONE"
],
"start": 10298,
"text": "11. I have heard the arguments on both sides and also perused the written arguments submitted by the Appellant."
}
},
{
"from_name": "label",
"id": "187a002848b64b688de1dd3bd70b65c1",
"to_name": "text",
"type": "labels",
"value": {
"end": 10599,
"labels": [
"ANALYSIS"
],
"start": 10411,
"text": "12. My findings on the above points are as under:- Point No.1 : Negative.\n Point No.2 : As per final order for the following: R E A S O N S Point No.1 in both cases: - 13."
}
},
{
"from_name": "label",
"id": "a5bcaecdc7034c338fb0aa4513e5af9c",
"to_name": "text",
"type": "labels",
"value": {
"end": 10655,
"labels": [
"ANALYSIS"
],
"start": 10600,
"text": "The relationship between the parties is not in dispute."
}
},
{
"from_name": "label",
"id": "b11570963eb14699b56ec13845ac8b3d",
"to_name": "text",
"type": "labels",
"value": {
"end": 10884,
"labels": [
"ANALYSIS"
],
"start": 10656,
"text": "It is an admitted fact that their father Neelappa Shetty had executed `Will' on 18.03.1997 creating life interest in favour of his wife and after her death, the Plaintiff and Defendant would be equally entitled for the property."
}
},
{
"from_name": "label",
"id": "c8bbdcf5fbb5490b9a3be17bf2663ca0",
"to_name": "text",
"type": "labels",
"value": {
"end": 11219,
"labels": [
"ANALYSIS"
],
"start": 10885,
"text": "Defendant contended that the Plaintiff after executing Ex.D.1 had received Rs.1,25,000/- from his father releasing his rights over the suit property and hence on 16.04.2003, his father had executed Ex.D.2/`Will' exclusively in his favour and hence Plaintiff would not have any share much less any rights in the suit schedule property."
}
},
{
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"id": "e56dec137747434ba9d4842554cf60ac",
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"type": "labels",
"value": {
"end": 11319,
"labels": [
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],
"start": 11219,
"text": "\nDefendant contended that by virtue of Ex.D.2/`Will', he is the absolute owner of the suit property."
}
},
{
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"id": "01e9afee0bec40f2ae562844b70bee6b",
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"end": 11424,
"labels": [
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],
"start": 11320,
"text": "The Plaintiff produced the Certified Copy of `Will' dated 18.03.1997, which came to be marked as Ex.P.1."
}
},
{
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"id": "b308279d8566495c89bb8f2237c06302",
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"end": 11465,
"labels": [
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],
"start": 11425,
"text": "He had not produced the original `Will'."
}
},
{
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"id": "2d6e638404da4b0d9e7b21e20b702b73",
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"end": 11562,
"labels": [
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],
"start": 11466,
"text": "In fact, Defendant himself produced the said original `Will', which came to be marked as Ex.D.9."
}
},
{
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"id": "dd13b15872304cd1b94530926cbe3085",
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"value": {
"end": 11772,
"labels": [
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],
"start": 11563,
"text": "The custody of the original `Will' with the Defendant endorses the plea taken by him in his written statement that his father had cancelled the said `Will' and thereafter, executed Ex.D.2/`Will' on 16.04.2003."
}
},
{
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"id": "5f665ed19baf4205ae3e02ed21533476",
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"type": "labels",
"value": {
"end": 11897,
"labels": [
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],
"start": 11773,
"text": "It is also pertinent to note that the Plaintiff had not examined any attestors or the scribe of the `Will' dated 18.03.1997."
}
},
{
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"id": "a248aca3276044648ccfa1034ea3d98b",
"to_name": "text",
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"value": {
"end": 12094,
"labels": [
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],
"start": 11898,
"text": "Except for the self serving testimony of the Plaintiff, he had not adduced cogent evidence to prove that he is having share in the suit property by virtue of Ex.P.1/`Will' dated: 18.03.1997.\n 14."
}
},
{
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"id": "9244ca6af6cb4848beeacef78bf13ee7",
"to_name": "text",
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"end": 12194,
"labels": [
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],
"start": 12095,
"text": "The Defendant had produced the original `Will' dated 16.04.2003, which came to be marked as Ex.D.2."
}
},
{
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"id": "98c48c1372044d4bb14759341cd43468",
"to_name": "text",
"type": "labels",
"value": {
"end": 12402,
"labels": [
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],
"start": 12195,
"text": "In Order to prove that by virtue of the said `Will', he became the absolute owner of the suit property, Defendant examined the attestors of the said will namely Anand and Ramesh as D.Ws.2 and 3 respectively."
}
},
{
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"id": "6370a36b9d8d4e71b541228e76ff4e70",
"to_name": "text",
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"value": {
"end": 12491,
"labels": [
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],
"start": 12403,
"text": "These witnesses have spoken about their presence at the time of preparing Ex.D.2/`Will'."
}
},
{
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"id": "62f734bf7fae45d2b953f58e161c6666",
"to_name": "text",
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"value": {
"end": 12599,
"labels": [
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],
"start": 12492,
"text": "They also spoke about sound disposing state of mind of Sri.Neelappa Shetty while executing the said `Will'."
}
},
{
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"id": "43f34bc8f3084637b4432f36841a77fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 12811,
"labels": [
"ANALYSIS"
],
"start": 12600,
"text": "They also spoke that there are recitals in Ex.D.2 that earlier `Will' executed by Neelappa Shetty on 18.03.1997 was cancelled and the suit schedule property was exclusively bequeathed in favour of the Defendant."
}
},
{
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"id": "d57dac5bfffb4e94b6d4fa94217a9be5",
"to_name": "text",
"type": "labels",
"value": {
"end": 12897,
"labels": [
"ANALYSIS"
],
"start": 12812,
"text": "Nothing worthwhile was elicited by the counsel for Plaintiff through these witnesses."
}
},
{
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"id": "7d5795793f1d431caeab8a09291a70dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 13039,
"labels": [
"ANALYSIS"
],
"start": 12898,
"text": "As such, the Learned Civil Judge had rightly held that the Defendant had proved execution of Ex.D.2/`Will' as per Section 68 of Evidence Act."
}
},
{
"from_name": "label",
"id": "fa34c0e6c81b490c93ea06468c63dd6a",
"to_name": "text",
"type": "labels",
"value": {
"end": 13214,
"labels": [
"ANALYSIS"
],
"start": 13040,
"text": "I do not find any error in the said finding given by the Lower Court after appreciating the evidence surrounding Ex.P.1 and D.2/`Wills'.\n 15. Execution of Ex.D.1 Release Deed"
}
},
{
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"id": "61e38eedd7a9442d8e4fe148037c5587",
"to_name": "text",
"type": "labels",
"value": {
"end": 13252,
"labels": [
"ANALYSIS"
],
"start": 13215,
"text": "came to be disputed by the Plaintiff."
}
},
{
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"id": "9d970999133f45e4bf711ed2a141eb52",
"to_name": "text",
"type": "labels",
"value": {
"end": 13573,
"labels": [
"ANALYSIS"
],
"start": 13253,
"text": "Arguments were addressed before this Court that Ex.D.1 does not reflect as to in respect of what property the Plaintiff had released his rights and since it is not specifically mentioned therein that Plaintiff has not released his rights in and over the suit schedule property the said document would be of no relevance."
}
},
{
"from_name": "label",
"id": "c161a98fc5bc429ca357111a96659179",
"to_name": "text",
"type": "labels",
"value": {
"end": 13676,
"labels": [
"ANALYSIS"
],
"start": 13574,
"text": "It was also argued that it is not a registered document and hit by Section 17 of the Registration Act."
}
},
{
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"id": "7d23ca2ca9dd4ad49c3921f709a5684a",
"to_name": "text",
"type": "labels",
"value": {
"end": 13867,
"labels": [
"ARG_RESPONDENT"
],
"start": 13677,
"text": "Per contra, Learned Counsel for the Defendant submitted that the said document was for limited collateral purpose and as no relief is sought on the said document, it can be read in evidence."
}
},
{
"from_name": "label",
"id": "3a1f29fd47f44ab799ed2caa3dd6876f",
"to_name": "text",
"type": "labels",
"value": {
"end": 14001,
"labels": [
"ANALYSIS"
],
"start": 13867,
"text": "\n 16. It is pertinent to note that Ex.D.1 Release Deed was marked after confronting it to the Plaintiff during his cross- examination."
}
},
{
"from_name": "label",
"id": "9d50d224446d4c118ce4aff2378916f3",
"to_name": "text",
"type": "labels",
"value": {
"end": 14154,
"labels": [
"ANALYSIS"
],
"start": 14002,
"text": "In his cross-examination dated 19.06.2014, at Page 5, Plaintiff admitted of executing Ex.D.1 Release Deed after receiving Rs.1,25,000/- from his father."
}
},
{
"from_name": "label",
"id": "b7355f84f9f247bfaa08ca8eedb1fbcb",
"to_name": "text",
"type": "labels",
"value": {
"end": 14334,
"labels": [
"ANALYSIS"
],
"start": 14155,
"text": "In view of his clear and unequivocal admission of executing the Release Deed and receiving Rs.1,25,000/- in all through cheques, the said Release Deed came to be marked as Ex.D.1."
}
},
{
"from_name": "label",
"id": "bc97732473b44c1da3cbc0b0a71a69bd",
"to_name": "text",
"type": "labels",
"value": {
"end": 14449,
"labels": [
"ANALYSIS"
],
"start": 14335,
"text": "Though it is an unregistered document, in view of the admission made by the Plaintiff, it can be read in evidence."
}
},
{
"from_name": "label",
"id": "ecf471b47a5b45abbd2b83a9a3e577eb",
"to_name": "text",
"type": "labels",
"value": {
"end": 14545,
"labels": [
"ANALYSIS"
],
"start": 14450,
"text": "It is not the case of the Plaintiff that there were several properties belonging to the family."
}
},
{
"from_name": "label",
"id": "84c8e29d45b140feab91cd5404f9971b",
"to_name": "text",
"type": "labels",
"value": {
"end": 14671,
"labels": [
"ANALYSIS"
],
"start": 14546,
"text": "Hence, it can be presumed that he had in fact received Rs.1,25,000/- in all and relinquished his rights in the suit property."
}
},
{
"from_name": "label",
"id": "65c70bf4141940d190380e0c544f851b",
"to_name": "text",
"type": "labels",
"value": {
"end": 14766,
"labels": [
"ANALYSIS"
],
"start": 14672,
"text": "Hence, the arguments addressed by the counsel for Plaintiff, as above does not have any force."
}
},
{
"from_name": "label",
"id": "6cc8db0411b64a3a8ad60ef3212556b6",
"to_name": "text",
"type": "labels",
"value": {
"end": 14903,
"labels": [
"ANALYSIS"
],
"start": 14767,
"text": "For the same reason, the judgments in ILR- 2010-Karnataka-3552 and ILR-2015-Karnataka-2939 relied by the Plaintiff are of no use to him."
}
},
{
"from_name": "label",
"id": "84ae7dbbdf874027b887ce3196e0ef3e",
"to_name": "text",
"type": "labels",
"value": {
"end": 15059,
"labels": [
"ANALYSIS"
],
"start": 14904,
"text": "In fact, the same arguments were addressed in the Court below and the Learned Civil Judge was right in rejecting the same and accepting Ex.D.1 in evidence."
}
},
{
"from_name": "label",
"id": "9cfecf9d18874840a38c97a5c60a7cd8",
"to_name": "text",
"type": "labels",
"value": {
"end": 15159,
"labels": [
"ANALYSIS"
],
"start": 15059,
"text": "\n 17. Defendant failed to prove that Plaintiff was inducted as a tenant on monthly rent of Rs.750/-."
}
},
{
"from_name": "label",
"id": "c7b340860530435192fd7d670c7de873",
"to_name": "text",
"type": "labels",
"value": {
"end": 15206,
"labels": [
"ANALYSIS"
],
"start": 15160,
"text": "He failed to get any relief in H.R.C.120/2006."
}
},
{
"from_name": "label",
"id": "df4ee6043289401d876c9b80239b890c",
"to_name": "text",
"type": "labels",
"value": {
"end": 15290,
"labels": [
"ANALYSIS"
],
"start": 15207,
"text": "Admittedly, the Plaintiff is in possession of the suit house property in a portion."
}
},
{
"from_name": "label",
"id": "888626375b3f4d7e9eeb2f285e253157",
"to_name": "text",
"type": "labels",
"value": {
"end": 15521,
"labels": [
"ANALYSIS"
],
"start": 15291,
"text": "Since he had admitted of relinquishing his rights in the suit property after receiving amount from his father, the Learned Civil Judge had rightly presumed and held that he was in permissive possession in portion of suit property."
}
},
{
"from_name": "label",
"id": "c3ce55dd4bf448dcb689a5ddd36a331e",
"to_name": "text",
"type": "labels",
"value": {
"end": 15669,
"labels": [
"ANALYSIS"
],
"start": 15522,
"text": "Defendant had proved beyond probability that by virtue of Ex.D.2/`Will' dated 14.06.2003, he became the absolute owner of the entire suit property."
}
},
{
"from_name": "label",
"id": "a617e4a3e05a48bda68806712771a044",
"to_name": "text",
"type": "labels",
"value": {
"end": 15854,
"labels": [
"ANALYSIS"
],
"start": 15669,
"text": "\nTherefore, the Plaintiff was directed to deliver vacant possession of the portion in which he was in possession to the Defendant within 3 months from the date of the impugned judgment."
}
},
{
"from_name": "label",
"id": "353f7d81ea534b5f8f3d35d23eb6a0dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 15975,
"labels": [
"ANALYSIS"
],
"start": 15854,
"text": "\n 18. It appears from the material on record that Defendant had sought mesne profits apart from the relief of possession."
}
},
{
"from_name": "label",
"id": "f7a76a8178b14c108d13ce9d7d3a84fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 16205,
"labels": [
"ANALYSIS"
],
"start": 15976,
"text": "In the operative portion of the impugned judgment, the Learned Civil Judge had held that there shall be an enquiry in respect of the mesne profits in Final Decree Proceedings and directed the office to prepare Preliminary Decree."
}
},
{
"from_name": "label",
"id": "a550097f155741349e3bd11436a6c230",
"to_name": "text",
"type": "labels",
"value": {
"end": 16344,
"labels": [
"ANALYSIS"
],
"start": 16206,
"text": "A Preliminary Decree is prepared only in the suit of partition and in mortgage related suits and at any rate not in a suit for possession."
}
},
{
"from_name": "label",
"id": "3e23ce1f3f744ad285e201156cde2d4d",
"to_name": "text",
"type": "labels",
"value": {
"end": 16459,
"labels": [
"ANALYSIS"
],
"start": 16345,
"text": "The suit for partition filed by the Plaintiff was dismissed and hence there was no preliminary decree to be drawn."
}
},
{
"from_name": "label",
"id": "4c22bd5c583f460d8cf3c4cd5faac0d0",
"to_name": "text",
"type": "labels",
"value": {
"end": 16581,
"labels": [
"ANALYSIS"
],
"start": 16460,
"text": "In other words, no Final Decree Proceedings can be initiated by the Defendant in a decree obtained by him for possession."
}
},
{
"from_name": "label",
"id": "d0b8c33f76744cb0b438a8ea1ed0b9cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 16665,
"labels": [
"ANALYSIS"
],
"start": 16582,
"text": "He can at best file a Miscellaneous Petition for enquiry into future mesne profits."
}
},
{
"from_name": "label",
"id": "2d981c44f7fb4479986b662af03c8dca",
"to_name": "text",
"type": "labels",
"value": {
"end": 16762,
"labels": [
"NONE"
],
"start": 16666,
"text": "As such, I am of the opinion that the operative portion of the judgment requires to be modified."
}
},
{
"from_name": "label",
"id": "c56d63dde3984bbeb747105fb22cd171",
"to_name": "text",
"type": "labels",
"value": {
"end": 17028,
"labels": [
"RATIO"
],
"start": 16763,
"text": "Otherwise, in respect of the issues and other facts, the Learned Civil Judge has properly appreciated the oral and documentary evidence and has rightly came to the conclusion that Plaintiff had failed to prove that he is having share in the suit schedule property."
}
},
{
"from_name": "label",
"id": "3e6a8ccbade14104b133310a4844a09e",
"to_name": "text",
"type": "labels",
"value": {
"end": 17409,
"labels": [
"RATIO"
],
"start": 17029,
"text": "He had also rightly appreciated the material on record and also appreciated the evidence of D.Ws.2 and 3 in proper perspective and rightly held that Defendant had proved execution of Ex.D.2/`Will'.\nConsequently, I find no reason or valid grounds to interfere with the well-reasoned judgment or the findings given therein.\nHence, I answer point for consideration in the `Negative'."
}
},
{
"from_name": "label",
"id": "f2db8aac57da4a57bd0dabf56c520bbf",
"to_name": "text",
"type": "labels",
"value": {
"end": 17604,
"labels": [
"RPC"
],
"start": 17409,
"text": "\n Point No.2: 19. By virtue of the above discussion, reasons stated and finding given to point No.1, the following is made; ORDER Appeals in R.A.249/2015 as well as R.A.250/2015 stands dismissed."
}
},
{
"from_name": "label",
"id": "8ca907051e304030b2ca7304b999a289",
"to_name": "text",
"type": "labels",
"value": {
"end": 17769,
"labels": [
"RPC"
],
"start": 17604,
"text": "\n The common judgment and decree dated 31.08.2015 passed in O.S.546/2007 and O.S.471/2009 on the file of Principal Judge, Court of Small Causes, Mysuru is confirmed."
}
},
{
"from_name": "label",
"id": "753da808c8cb4c9eba10c653f04bc3d9",
"to_name": "text",
"type": "labels",
"value": {
"end": 17862,
"labels": [
"RPC"
],
"start": 17769,
"text": "\n Suit of the Plaintiff in O.S.546/2007 is dismissed and the suit in O.S.471/2009 is decreed."
}
},
{
"from_name": "label",
"id": "864324e44eea419882ea05f2c4f6b638",
"to_name": "text",
"type": "labels",
"value": {
"end": 18117,
"labels": [
"RPC"
],
"start": 17862,
"text": "\n The Defendant in O.S.471/2009 Sri.Hoysala G.N is hereby directed to vacate and deliver vacant possession of the portion of the property in his possession to the Plaintiff in the said case Sri.G.N.Shashi Kumar within 3 months from the date of this Order."
}
},
{
"from_name": "label",
"id": "355ea062d9c94ba2b7ede26aa8f7b00e",
"to_name": "text",
"type": "labels",
"value": {
"end": 18245,
"labels": [
"RPC"
],
"start": 18117,
"text": "\n The Plaintiff in O.S.471/2009 is at liberty to file his separate Miscellaneous Petition for enquiry into future mesne profits."
}
},
{
"from_name": "label",
"id": "4edf5b944b6245038520d4647f523c0b",
"to_name": "text",
"type": "labels",
"value": {
"end": 18268,
"labels": [
"RPC"
],
"start": 18247,
"text": "Draw decree as above."
}
},
{
"from_name": "label",
"id": "da8db19be6124e2d906411d77b2c0943",
"to_name": "text",
"type": "labels",
"value": {
"end": 18328,
"labels": [
"NONE"
],
"start": 18270,
"text": "Send copy of this judgment along with lower Court records."
}
},
{
"from_name": "label",
"id": "7a904acf5b364d668b24674c4c42de95",
"to_name": "text",
"type": "labels",
"value": {
"end": 18532,
"labels": [
"NONE"
],
"start": 18328,
"text": "\n [Dictated to the Judgment writer, transcribed by her, corrected and then pronounced by me in the Open Court on this the 10th day of August 2016) [C.CHANDRASEKHAR], VII Additional District Judge, Mysuru."
}
}
]
}
] | 1,740 | {
"text": "Government of Karnataka\nForm No.9(Civil) Title Sheet for\nJudgments in Appeals (R.P.93)\n\nIN THE COURT OF THE VII ADDITIONAL DISTRICT JUDGE,\n MYSURU.\n\n Dated this the 10th day of August 2016\n\n PRESENT\n\nSRI C. CHANDRASEKHAR, LL.M.,\n VII Additional District Judge,\n Mysuru.\n\n R.A.No.249/2015\n\nAppellant/s G.N.Hoysala S/o Neelappa Shetty,\n\n Aged about 35 years, Major, Residing\n at No.1084/BN, 11-B, 2nd Floor,\n\n Manasa Road, Ittigegud, Mysuru City.\n\n [By Sri.G.B.Lokesh, Advocate]\n\n /Vs/\n\nRespondent/s G.N.Shashikumar S/o Neelappa\n\n Shetty, Aged about 58 years, Major,\n residing at No.1084/BN, 11, 1st Floor,\n\n Manasa Road, Ittigegud, Mysuru City.\n\n [By Sri.O.Sham Bhat, Advocate]\n\nDate and nature of the To set aside the Judgment\nappeal against\n and decree passed in\nDate of institution of\nthe appeal O.S.No.546/2007 dated\nDate of pronouncing\n 31.08.2015 on the file of\n\n Principal Judge, Small\n\n Causes and senior Civil\n\n Judge, Mysuru.\n\n 27.11.2015\n\n 10.08.2016\n\n\nthe judgment Years Months Days\nDuration of appeal 00 08 14\n\n R.A.No.250/2015\n\nAppellant/s G.N.Hoysala S/o Neelappa Shetty,\n\n Aged about 35 years, Major, Residing\n at No.1084/BN, 11-B, 2nd Floor,\n\n Manasa Road, Ittigegud, Mysuru City.\n\n [By Sri.G.B.Lokesh, Advocate]\n\n /Vs/\n\nRespondent/s G.N.Shashikumar S/o Neelappa\n\n Shetty, Aged about 58 years, Major,\n residing at No.1084/BN, 11, 1st Floor,\n\n Manasa Road, Ittigegud, Mysuru City.\n\n [By Sri.O.Sham Bhat, Advocate]\n\nDate and nature of the To set aside the Judgment\nappeal against\n and decree passed in\nDate of institution of\nthe appeal O.S.No.471/2009 dated\nDate of pronouncing\nthe judgment 31.08.2015 on the file of\nDuration of appeal\n Principal Judge, Small\n\n Causes and Senior Civil\n\n Judge, Mysuru.\n\n 25.11.2015\n\n 10.08.2016\n\n Years Months Days\n 00 08 16\n\n [C.CHANDRASEKHAR],\n VII Additional District Judge, Mysuru.\n\n JUDGMENT\n The Appellant in R.A.249/2015 has filed the appeal questioning the correctness and legality of the judgment and decree dated 31.08.2015 in O.S.No.546/2007 on the file of Court of Principal Judge, Small Causes and Senior Civil Judge, Mysuru.\n The Appellant in R.A.250/2015 has filed the appeal questioning the correctness and legality of the judgment and decree dated 31.08.2015 in O.S.No.471/2009 on the file of Court of Principal Judge, Small Causes and Senior Civil Judge, Mysuru.\n 2. The appellant in both the cases was the Plaintiff in O.S.546/2007 and Defendant in O.S.471/2009. Both suits were disposed by common judgment dated; 31.08.2015. For the sake of brevity, parties are addressed as per their rank in O.S.546/2007.\n Facts in brief: 3. The parties to the lis are brothers and children of late Neelappa Shetty. He had bequeathed the suit schedule property in favour of both his children under registered `Will dated 18.03.1997, but had created life interest in favour of his wife.\nBoth their parents are no more and hence they are in joint possession of the suit schedule property as co-owners.\nDefendant had filed H.R.C 120/2006 on the file of Principal Civil Judge (Jr.Dn), Mysuru for ejectment against the plaintiff from the suit schedule property and in that case, he claimed that their father had executed `Will' on 16.04.2003 bequeathing the entire property to the Defendant. The said `Will' is a sham document and no such `Will' was executed by their father. He is having share in the suit schedule property and when demanded to effect partition, Defendant had denied the same. Hence, he filed suit for partition and separate possession of his share.\n 4. Defendant filed written statement admitting the relationship with the Plaintiff. He had also admitted that their father Neelappa Shetty had executed `Will' on 18.03.1996. It was his case that the said `Will' was not in force as the same was cancelled by his father during his life time. The Plaintiff had relinquished his right over the suit schedule property by receiving Rs.1,25,000/- from his father and had executed a document to that effect on 22.12.2003. As such, his father after canceling the earlier `Will' had bequeathed the entire property in his favour. The Plaintiff was inducted as a tenant in the 2nd floor on a monthly rent of Rs.750/- and hence he had filed H.R.C.120/2006 for eviction. He is the absolute owner of the entire suit property and as such Plaintiff is not entitled for his share. Therefore it was prayed to dismiss the suit.\n 5. Subsequently, Defendant filed O.S.471/2009 against the Plaintiff taking the aforesaid contentions in his written statement filed in O.S.546/2007. In that case, written statement came to be filed by the Plaintiff pleading similar facts as to what he had stated in O.S.546/2007.\n 6. By virtue of the aforesaid pleadings, the Learned Civil Judge had framed the following common Issues in both the suits: - ISSUES IN O.S.546/2007 1. Whether the Plaintiff proves that Plaintiff and Defendant are joint co- owners of the suit schedule property as per `Will' dated 18.03.1997?\n 2. Whether Defendant proves that Neelappa Shetty was cancelled `Will' dated 18.03.1997 and he was executed `Will' dated 16.04.2003 bequeathing the plaint schedule property in favour of the Defendant?\n 3. Whether Court Fee paid by the Plaintiff is insufficient?\n 4. Whether Plaintiff is entitled for the relief as prayed for?\n 5. What Order or Decree?\n ISSUES IN O.S.471/2009 1. Whether the Plaintiff proves that he is the absolute owner in possession of suit schedule property?\n 2. Whether the Plaintiff proves that the Defendant is in permissive possession of suit schedule property?\n 3. Whether the Defendant proves that the Plaintiff and Defendant are joint owners of the suit schedule property?\n 4. Whether the Plaintiff proves that he is entitled for possession of the suit schedule property?\n 5. Whether the Plaintiff is entitled for the relief as prayed?\n 6. What Order or Decree?\n 7. In order to substantiate the plaint averments, the Plaintiff examined him as P.W.1 and got marked seven documents as Ex.P.1 to P.7. Per contra, Defendant examined him as D.W.1 and examined two witnesses as D.Ws.2 and 3.\nFourteen documents in all came to be marked as Ex.D.1 to Ex.D.14.\n 8. Since common evidence came to be recorded, both the suits came to be disposed by common judgment and decree dated 31.08.2015. The suit of the Plaintiff in O.S.546/2007 came to be dismissed and the suit filed by the Defendant in O.S.471/2009 came to be decreed. The Plaintiff was directed to vacate and hand over vacant possession of portion of suit property to the Defendant within 3 months from the date of the said judgment.\n 9. Aggrieved by the judgment and decree passed in both the suits, the Appellant has come before this Court urging the following common grounds in both the appeals : - The Learned Trial Judge had erred in giving finding to Issue No.1 as Negative that Plaintiff and Defendant are not joint owners of the suit schedule property as per Will dated 18.03.1997, even though the Appellant /Plaintiff proved the Will and further the Defendant himself has admitted the same at the time of passing impugned judgment and decree.\n The Learned Trial Judge further erred in giving finding as Affirmative to Issue No.2 that Neelappa Shetty had cancelled the Will dated 18.03.1997 and he has executed Will dated 16.04.2003 bequeathing the plaint schedule property in favour of Defendant, even though the alleged Will dated 16.04.2003 is doubtful one.\n The Learned Trial Judge further erred in not taking into consideration of the fact that the intention of the father of Plaintiff and Defendant was to give suit schedule property equally to the plaintiff and Defendant and not only to the Defendant.\n The Learned Trial Judge further at the time of passing impugned judgment and decree erred in not taking into consideration of the fact that the evidence of D.W.1 i.e, Defendant and during the course of cross-examination there is lot of contradictions in his evidence about the execution of Will was shrouded with suspicious circumstances.\n The Learned Trial Judge further erred in believing the evidence of D.W.2 and 3 they are alleged to be attestors of the alleged `Will' even though there are lot of contradictions in their evidence.\n The Learned Trial Judge erred in believing and taking into consideration of Ex.D.1 alleged to be Release Deed executed by the Plaintiff, even though that document is not at all admissible in evidence as it is a unregistered one.\n The Learned Trial Judge further erred in not giving opportunity to the Plaintiff to lead further evidence during the course of trial even though the Plaintiff/Appellant made several applications seeking permission from the hands of the Hon'ble Court.\n Viewed from any angle, the impugned judgment and decree passed by the Learned Civil Judge is capricious one and erroneous one in the eye of law and same is liable to be set aside by this Hon'ble Court by interfering with the same.\n Therefore, he prays to set aside common judgment and decree by allowing the appeals. Inter-alia, he has prayed to decree his suit in O.S.546/2007 and dismiss O.S.471/2009.\n 10. By virtue of the above facts and circumstances the common points that would arise for my consideration are:- 1. Whether the impugned common judgment and decree of the lower court is opposed to law, facts and circumstances of the case and interference of this court is necessary?\n 2. What Order?\n 11. I have heard the arguments on both sides and also perused the written arguments submitted by the Appellant.\n 12. My findings on the above points are as under:- Point No.1 : Negative.\n Point No.2 : As per final order for the following: R E A S O N S Point No.1 in both cases: - 13. The relationship between the parties is not in dispute. It is an admitted fact that their father Neelappa Shetty had executed `Will' on 18.03.1997 creating life interest in favour of his wife and after her death, the Plaintiff and Defendant would be equally entitled for the property. Defendant contended that the Plaintiff after executing Ex.D.1 had received Rs.1,25,000/- from his father releasing his rights over the suit property and hence on 16.04.2003, his father had executed Ex.D.2/`Will' exclusively in his favour and hence Plaintiff would not have any share much less any rights in the suit schedule property.\nDefendant contended that by virtue of Ex.D.2/`Will', he is the absolute owner of the suit property. The Plaintiff produced the Certified Copy of `Will' dated 18.03.1997, which came to be marked as Ex.P.1. He had not produced the original `Will'. In fact, Defendant himself produced the said original `Will', which came to be marked as Ex.D.9. The custody of the original `Will' with the Defendant endorses the plea taken by him in his written statement that his father had cancelled the said `Will' and thereafter, executed Ex.D.2/`Will' on 16.04.2003. It is also pertinent to note that the Plaintiff had not examined any attestors or the scribe of the `Will' dated 18.03.1997. Except for the self serving testimony of the Plaintiff, he had not adduced cogent evidence to prove that he is having share in the suit property by virtue of Ex.P.1/`Will' dated: 18.03.1997.\n 14. The Defendant had produced the original `Will' dated 16.04.2003, which came to be marked as Ex.D.2. In Order to prove that by virtue of the said `Will', he became the absolute owner of the suit property, Defendant examined the attestors of the said will namely Anand and Ramesh as D.Ws.2 and 3 respectively. These witnesses have spoken about their presence at the time of preparing Ex.D.2/`Will'. They also spoke about sound disposing state of mind of Sri.Neelappa Shetty while executing the said `Will'. They also spoke that there are recitals in Ex.D.2 that earlier `Will' executed by Neelappa Shetty on 18.03.1997 was cancelled and the suit schedule property was exclusively bequeathed in favour of the Defendant. Nothing worthwhile was elicited by the counsel for Plaintiff through these witnesses. As such, the Learned Civil Judge had rightly held that the Defendant had proved execution of Ex.D.2/`Will' as per Section 68 of Evidence Act. I do not find any error in the said finding given by the Lower Court after appreciating the evidence surrounding Ex.P.1 and D.2/`Wills'.\n 15. Execution of Ex.D.1 Release Deed came to be disputed by the Plaintiff. Arguments were addressed before this Court that Ex.D.1 does not reflect as to in respect of what property the Plaintiff had released his rights and since it is not specifically mentioned therein that Plaintiff has not released his rights in and over the suit schedule property the said document would be of no relevance. It was also argued that it is not a registered document and hit by Section 17 of the Registration Act. Per contra, Learned Counsel for the Defendant submitted that the said document was for limited collateral purpose and as no relief is sought on the said document, it can be read in evidence.\n 16. It is pertinent to note that Ex.D.1 Release Deed was marked after confronting it to the Plaintiff during his cross- examination. In his cross-examination dated 19.06.2014, at Page 5, Plaintiff admitted of executing Ex.D.1 Release Deed after receiving Rs.1,25,000/- from his father. In view of his clear and unequivocal admission of executing the Release Deed and receiving Rs.1,25,000/- in all through cheques, the said Release Deed came to be marked as Ex.D.1. Though it is an unregistered document, in view of the admission made by the Plaintiff, it can be read in evidence. It is not the case of the Plaintiff that there were several properties belonging to the family. Hence, it can be presumed that he had in fact received Rs.1,25,000/- in all and relinquished his rights in the suit property. Hence, the arguments addressed by the counsel for Plaintiff, as above does not have any force. For the same reason, the judgments in ILR- 2010-Karnataka-3552 and ILR-2015-Karnataka-2939 relied by the Plaintiff are of no use to him. In fact, the same arguments were addressed in the Court below and the Learned Civil Judge was right in rejecting the same and accepting Ex.D.1 in evidence.\n 17. Defendant failed to prove that Plaintiff was inducted as a tenant on monthly rent of Rs.750/-. He failed to get any relief in H.R.C.120/2006. Admittedly, the Plaintiff is in possession of the suit house property in a portion. Since he had admitted of relinquishing his rights in the suit property after receiving amount from his father, the Learned Civil Judge had rightly presumed and held that he was in permissive possession in portion of suit property. Defendant had proved beyond probability that by virtue of Ex.D.2/`Will' dated 14.06.2003, he became the absolute owner of the entire suit property.\nTherefore, the Plaintiff was directed to deliver vacant possession of the portion in which he was in possession to the Defendant within 3 months from the date of the impugned judgment.\n 18. It appears from the material on record that Defendant had sought mesne profits apart from the relief of possession. In the operative portion of the impugned judgment, the Learned Civil Judge had held that there shall be an enquiry in respect of the mesne profits in Final Decree Proceedings and directed the office to prepare Preliminary Decree. A Preliminary Decree is prepared only in the suit of partition and in mortgage related suits and at any rate not in a suit for possession. The suit for partition filed by the Plaintiff was dismissed and hence there was no preliminary decree to be drawn. In other words, no Final Decree Proceedings can be initiated by the Defendant in a decree obtained by him for possession. He can at best file a Miscellaneous Petition for enquiry into future mesne profits. As such, I am of the opinion that the operative portion of the judgment requires to be modified. Otherwise, in respect of the issues and other facts, the Learned Civil Judge has properly appreciated the oral and documentary evidence and has rightly came to the conclusion that Plaintiff had failed to prove that he is having share in the suit schedule property. He had also rightly appreciated the material on record and also appreciated the evidence of D.Ws.2 and 3 in proper perspective and rightly held that Defendant had proved execution of Ex.D.2/`Will'.\nConsequently, I find no reason or valid grounds to interfere with the well-reasoned judgment or the findings given therein.\nHence, I answer point for consideration in the `Negative'.\n Point No.2: 19. By virtue of the above discussion, reasons stated and finding given to point No.1, the following is made; ORDER Appeals in R.A.249/2015 as well as R.A.250/2015 stands dismissed.\n The common judgment and decree dated 31.08.2015 passed in O.S.546/2007 and O.S.471/2009 on the file of Principal Judge, Court of Small Causes, Mysuru is confirmed.\n Suit of the Plaintiff in O.S.546/2007 is dismissed and the suit in O.S.471/2009 is decreed.\n The Defendant in O.S.471/2009 Sri.Hoysala G.N is hereby directed to vacate and deliver vacant possession of the portion of the property in his possession to the Plaintiff in the said case Sri.G.N.Shashi Kumar within 3 months from the date of this Order.\n The Plaintiff in O.S.471/2009 is at liberty to file his separate Miscellaneous Petition for enquiry into future mesne profits.\n Draw decree as above.\n Send copy of this judgment along with lower Court records.\n [Dictated to the Judgment writer, transcribed by her, corrected and then pronounced by me in the Open Court on this the 10th day of August 2016) [C.CHANDRASEKHAR], VII Additional District Judge, Mysuru.\n "
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"type": null,
"value": {
"end": 1765,
"labels": [
"PREAMBLE"
],
"start": 1618,
"text": "Shri. S.G. Nandedkar, Additional Public Prosecutor, for the\nrespondent.\n\n --------\n\n CORAM:"
}
},
{
"from_name": null,
"id": "63471d0a9dd445c08525da68a8df0c1e",
"to_name": null,
"type": null,
"value": {
"end": 1782,
"labels": [
"PREAMBLE"
],
"start": 1766,
"text": "NARESH H PATIL &"
}
},
{
"from_name": null,
"id": "9544b5fb08e143d9ae1ca64484974b8f",
"to_name": null,
"type": null,
"value": {
"end": 1840,
"labels": [
"PREAMBLE"
],
"start": 1782,
"text": "\n A.I.S. CHEEMA, JJ."
}
},
{
"from_name": null,
"id": "1ea63f2bfedf4707ad107850d595cde8",
"to_name": null,
"type": null,
"value": {
"end": 1938,
"labels": [
"PREAMBLE"
],
"start": 1846,
"text": "Judgment reserved on : 09th July 2013\n Judgment pronounced on : 23rd July 2013\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "5be3442faf534f368ac7fe9254a45583",
"to_name": null,
"type": null,
"value": {
"end": 1966,
"labels": [
"NONE"
],
"start": 1939,
"text": "(Per Naresh H Patil, J.) 1)"
}
},
{
"from_name": null,
"id": "eec52090b6e14cae98d17bee2703b5ff",
"to_name": null,
"type": null,
"value": {
"end": 2211,
"labels": [
"RLC"
],
"start": 1968,
"text": "The appellants have challenged the judgment and order of conviction for an offence punishable under section 302 of Indian Penal Code dated 22nd June 2012 passed by learned Additional Sessions Judge-2, Ambajogai, in Sessions Case No.42 of 2011."
}
},
{
"from_name": null,
"id": "05351f8e93f74623b1c3ac94ce263266",
"to_name": null,
"type": null,
"value": {
"end": 2369,
"labels": [
"RLC"
],
"start": 2212,
"text": "The appellants were sentenced to suffer imprisonment for life and to pay a fine of Rs.2000/-each, in default, to suffer simple imprisonment for three months."
}
},
{
"from_name": null,
"id": "61bd8454daf545baa7c31857b0f81d10",
"to_name": null,
"type": null,
"value": {
"end": 2422,
"labels": [
"FAC"
],
"start": 2369,
"text": "\n 2) The prosecution case, in brief, is as under :--"
}
},
{
"from_name": null,
"id": "150b366e01344dc29956359155c55d36",
"to_name": null,
"type": null,
"value": {
"end": 2615,
"labels": [
"FAC"
],
"start": 2423,
"text": "On 22-7-2010 at 11.00 a.m. the Deputy Superintendent of Police Smt. Swati Bhore received an anonymous phone call informing that funeral of deceased Sunanda Baburao Gitte was to be carried out."
}
},
{
"from_name": null,
"id": "4bbe50c259794e42a34cfc3fd70d191c",
"to_name": null,
"type": null,
"value": {
"end": 2733,
"labels": [
"FAC"
],
"start": 2616,
"text": "The officer intimated Police Inspector Shri. Kale of Parali Rural Police Station to visit the spot at Talani village."
}
},
{
"from_name": null,
"id": "a4edd8b06b504bddbcc02d7023a37dfb",
"to_name": null,
"type": null,
"value": {
"end": 2764,
"labels": [
"FAC"
],
"start": 2734,
"text": "The police rushed to the spot."
}
},
{
"from_name": null,
"id": "bf9846b0aa6b4e728eebe839a62b3c01",
"to_name": null,
"type": null,
"value": {
"end": 2838,
"labels": [
"FAC"
],
"start": 2765,
"text": "They found that preparations for cremation of deceased Sunanda had begun."
}
},
{
"from_name": null,
"id": "29127a7476d14fea9125104222a0f2c2",
"to_name": null,
"type": null,
"value": {
"end": 2875,
"labels": [
"FAC"
],
"start": 2839,
"text": "They enquired and saw the dead body."
}
},
{
"from_name": null,
"id": "269db9e41b5245839469a1275af14ffa",
"to_name": null,
"type": null,
"value": {
"end": 2980,
"labels": [
"FAC"
],
"start": 2876,
"text": "After inspection they found ligature marks and injury on back side of skull on the dead body of Sunanda."
}
},
{
"from_name": null,
"id": "28c11f80d1c94e3480174289d2ad5b7c",
"to_name": null,
"type": null,
"value": {
"end": 3165,
"labels": [
"FAC"
],
"start": 2980,
"text": "\n The police carried inquest and post mortem on the dead body on the spot. PW-9 Sunil Shrinivas Birla, Police Inspector, was on duty as Station Diary Officer of Bardapur Police Station."
}
},
{
"from_name": null,
"id": "d8abe19cfdc8478ab55fb0c8ca85e611",
"to_name": null,
"type": null,
"value": {
"end": 3329,
"labels": [
"FAC"
],
"start": 3166,
"text": "He received message from Police Inspector Kale of Parali Rural Police Station that one Sunanda died at Talani village in Poose vicinity and her death was doubtful."
}
},
{
"from_name": null,
"id": "8ac26af19c8e4215a32a0888324c12fb",
"to_name": null,
"type": null,
"value": {
"end": 3466,
"labels": [
"FAC"
],
"start": 3330,
"text": "He was informed by Police Inspector Kale that the spot was within the jurisdiction of Bardapur Police Station, therefore, he was called."
}
},
{
"from_name": null,
"id": "f4247207b8714e45baa56b92bdd91b36",
"to_name": null,
"type": null,
"value": {
"end": 3574,
"labels": [
"FAC"
],
"start": 3467,
"text": "He reached the spot and at that time P.S.I. Bankar, A.P.I. Kale and their staff members were present there."
}
},
{
"from_name": null,
"id": "c39fd1575d0d4d9687a755c41ce63f34",
"to_name": null,
"type": null,
"value": {
"end": 3671,
"labels": [
"FAC"
],
"start": 3575,
"text": "He saw that near wooden plank prepared for cremation, dead body of Sunanda was lying besides it."
}
},
{
"from_name": null,
"id": "8f81e71faece48f9bb13b9522c5a3032",
"to_name": null,
"type": null,
"value": {
"end": 3790,
"labels": [
"FAC"
],
"start": 3672,
"text": "The officer noticed ligature mark on neck, injury to back side of head and rope mark on hands and leg of the deceased."
}
},
{
"from_name": null,
"id": "bf5ee9494af243f5950001e8b581b37e",
"to_name": null,
"type": null,
"value": {
"end": 3869,
"labels": [
"FAC"
],
"start": 3791,
"text": "The police officer had already started making inquest panchanama (Exhibit 18)."
}
},
{
"from_name": null,
"id": "5cb6f04ee7a74f15a0edf0cdcff97e55",
"to_name": null,
"type": null,
"value": {
"end": 3930,
"labels": [
"FAC"
],
"start": 3871,
"text": "Post mortem on the dead body was carried at the same place."
}
},
{
"from_name": null,
"id": "103f827cefb347a094901414678a5538",
"to_name": null,
"type": null,
"value": {
"end": 4064,
"labels": [
"FAC"
],
"start": 3931,
"text": "After return to Parali Rural Police station PW-9 registered the offence himself on behalf of the State and carried the investigation."
}
},
{
"from_name": null,
"id": "50a34d6b45ff45cc9adbb0399d3659b6",
"to_name": null,
"type": null,
"value": {
"end": 4096,
"labels": [
"FAC"
],
"start": 4065,
"text": "The complaint is at Exhibit 58."
}
},
{
"from_name": null,
"id": "5b0e7b0084d44225aa073c9a49e85b65",
"to_name": null,
"type": null,
"value": {
"end": 4221,
"labels": [
"FAC"
],
"start": 4098,
"text": "The officer thereafter prepared the spot panchanama (Exhibit-17) and during investigation recorded statements of witnesses."
}
},
{
"from_name": null,
"id": "ec38a8be5c4745d0a2864c7a9ddf73b3",
"to_name": null,
"type": null,
"value": {
"end": 4409,
"labels": [
"FAC"
],
"start": 4222,
"text": "In the memorandum of accused Nilesh and Balasaheb the prosecution case suggests that Nilesh had taken out an iron rod and his clothes which were used at the time of commission of offence."
}
},
{
"from_name": null,
"id": "0f2f4a13de174c029fc10e62f97a37a1",
"to_name": null,
"type": null,
"value": {
"end": 4478,
"labels": [
"FAC"
],
"start": 4410,
"text": "These article were seized under panchanamas at Exhibits 20, 21 & 22."
}
},
{
"from_name": null,
"id": "9f92f6ed43a14f018b148bab54e37277",
"to_name": null,
"type": null,
"value": {
"end": 4529,
"labels": [
"FAC"
],
"start": 4478,
"text": "\n Memorandum of accused Balasaheb is at Exhibit 23."
}
},
{
"from_name": null,
"id": "ddcf86cf7c57439aa387b36a4acf2c04",
"to_name": null,
"type": null,
"value": {
"end": 4581,
"labels": [
"FAC"
],
"start": 4530,
"text": "The articles from Nilesh and Balasaheb were seized."
}
},
{
"from_name": null,
"id": "81fd6fc44d7e44f9aabda2a3531b1e8e",
"to_name": null,
"type": null,
"value": {
"end": 4621,
"labels": [
"FAC"
],
"start": 4582,
"text": "A nylon rope was seized from Balasaheb."
}
},
{
"from_name": null,
"id": "f0454ed28b99457697e69e49e7b29023",
"to_name": null,
"type": null,
"value": {
"end": 4692,
"labels": [
"FAC"
],
"start": 4622,
"text": "Muddemal property was sent for chemical analysis by letter Exhibit 59."
}
},
{
"from_name": null,
"id": "3c35716f8aae44aab86f9d934953003c",
"to_name": null,
"type": null,
"value": {
"end": 4788,
"labels": [
"FAC"
],
"start": 4693,
"text": "A letter was sent to the Executive Magistrate for preparing map of spot of offence on 9-8-2010."
}
},
{
"from_name": null,
"id": "2d1dd18aecf0499fb9425c3bd8369edc",
"to_name": null,
"type": null,
"value": {
"end": 4871,
"labels": [
"FAC"
],
"start": 4789,
"text": "The police seized copy of 7/12 extract during interrogation of Sudhakar Nagargoje."
}
},
{
"from_name": null,
"id": "76dad31bf22e4ce5b88d432bc756de85",
"to_name": null,
"type": null,
"value": {
"end": 4942,
"labels": [
"FAC"
],
"start": 4871,
"text": "\n Further investigation was handed over to Police Sub Inspector Rathod."
}
},
{
"from_name": null,
"id": "15ec4ee4f44743a0816e8f4422a4e27d",
"to_name": null,
"type": null,
"value": {
"end": 5063,
"labels": [
"FAC"
],
"start": 4943,
"text": "PSI Rathod thereafter investigated the matter and filed charge-sheet against the accused persons in Crime No.39 of 2010."
}
},
{
"from_name": null,
"id": "8aa3c599b1ab4cd49bef57a56d88c9ae",
"to_name": null,
"type": null,
"value": {
"end": 5119,
"labels": [
"FAC"
],
"start": 5064,
"text": "The accused pleaded not guilty and claimed to be tried."
}
},
{
"from_name": null,
"id": "ebddfa32123645e58f7aa58510889eb3",
"to_name": null,
"type": null,
"value": {
"end": 5169,
"labels": [
"FAC"
],
"start": 5119,
"text": "\n 3) The prosecution examined 11 witnesses."
}
},
{
"from_name": null,
"id": "9900aab2ccaf47d584e6c0bc1c8fc242",
"to_name": null,
"type": null,
"value": {
"end": 5248,
"labels": [
"FAC"
],
"start": 5169,
"text": "\n 4) The appellant-Nilesh Baburao Gitte is real son of deceased Sunanda."
}
},
{
"from_name": null,
"id": "db3e2e0d7b9c4be18a1251147ae602da",
"to_name": null,
"type": null,
"value": {
"end": 5318,
"labels": [
"FAC"
],
"start": 5249,
"text": "PW1-Dinkar Manikrao Nagargoje is paternal cousin of deceased Sunanda."
}
},
{
"from_name": null,
"id": "fad5092ba29547f6a2102293a70471c1",
"to_name": null,
"type": null,
"value": {
"end": 5380,
"labels": [
"FAC"
],
"start": 5319,
"text": "He had seen dead body of Sunanda near her house in the field."
}
},
{
"from_name": null,
"id": "b0d33cb799cc46a695d7613a28dc4432",
"to_name": null,
"type": null,
"value": {
"end": 5504,
"labels": [
"FAC"
],
"start": 5381,
"text": "According to the witness, brothers of Sunanda, Prabhakar and Sudhakar were not present to attend the last rites of Sunanda."
}
},
{
"from_name": null,
"id": "e9a45846cd3e4ddf8e7662e708ccbaa3",
"to_name": null,
"type": null,
"value": {
"end": 5612,
"labels": [
"FAC"
],
"start": 5504,
"text": "\n 5) PW-2-Sattar Pashasab Patwekar, who was examined as panch of recovery of articles, tuned hostile."
}
},
{
"from_name": null,
"id": "110ad60d93354599a6d719308d8a5fe5",
"to_name": null,
"type": null,
"value": {
"end": 5748,
"labels": [
"FAC"
],
"start": 5614,
"text": "In the cross-examination of the witness by the State he deposed that Nilesh had taken out iron pipe and his clothes from wooden Diwan."
}
},
{
"from_name": null,
"id": "9f2a5b76c1bd405da294aa4493166cf1",
"to_name": null,
"type": null,
"value": {
"end": 5819,
"labels": [
"FAC"
],
"start": 5749,
"text": "The police seized those clothes by drawing memorandum in his presence."
}
},
{
"from_name": null,
"id": "55ed5339abc64b4c95ce398fae35bba9",
"to_name": null,
"type": null,
"value": {
"end": 5958,
"labels": [
"FAC"
],
"start": 5820,
"text": "In the cross-examination by the defence the witness deposed that he was looking after political work of Sudhakar, brother of the deceased."
}
},
{
"from_name": null,
"id": "cd0bc7757c3e43e7b633f09a34b5dce5",
"to_name": null,
"type": null,
"value": {
"end": 5997,
"labels": [
"FAC"
],
"start": 5959,
"text": "He had attended last rites of Sunanda."
}
},
{
"from_name": null,
"id": "2a6c446fc4714e1ca803af8d78dea992",
"to_name": null,
"type": null,
"value": {
"end": 6091,
"labels": [
"FAC"
],
"start": 5997,
"text": "\n 6) PW-3 is Sudhakar Bhagwanrao Nagargoje, one of the most important witnesses in this case."
}
},
{
"from_name": null,
"id": "e23fdfb547464f72acedb5a363cd0e84",
"to_name": null,
"type": null,
"value": {
"end": 6142,
"labels": [
"FAC"
],
"start": 6092,
"text": "He happens to be real brother of deceased Sunanda."
}
},
{
"from_name": null,
"id": "a73ff79dfa474885a8fe5e702a609e46",
"to_name": null,
"type": null,
"value": {
"end": 6275,
"labels": [
"FAC"
],
"start": 6143,
"text": "In his deposition the witness stated that the appellant Nilesh contacted him on phone and informed that his sister Sunanda had died."
}
},
{
"from_name": null,
"id": "c5eebc9971254f22ba080a0a1c5b27b7",
"to_name": null,
"type": null,
"value": {
"end": 6312,
"labels": [
"FAC"
],
"start": 6275,
"text": "\n He could not attend the last rites."
}
},
{
"from_name": null,
"id": "ec365e43d99643908a4a8146ab3d6299",
"to_name": null,
"type": null,
"value": {
"end": 6363,
"labels": [
"FAC"
],
"start": 6313,
"text": "According to the witness, his sister was murdered."
}
},
{
"from_name": null,
"id": "8a6d5506f59a43b99c3ecee4402cc4e6",
"to_name": null,
"type": null,
"value": {
"end": 6507,
"labels": [
"FAC"
],
"start": 6364,
"text": "Accused Nilesh was the beneficiary of the property which was inherited by Sunanda or which was to be allotted to her share in family partition."
}
},
{
"from_name": null,
"id": "1d7c82c97c6c49a79eefe376af11c6d2",
"to_name": null,
"type": null,
"value": {
"end": 6620,
"labels": [
"FAC"
],
"start": 6508,
"text": "The witness came on the next day for immersion of Asthi of Sunanda and thereafter visited Parali Police Station."
}
},
{
"from_name": null,
"id": "53fa13ed157b45718fe1f87ad98b7bbd",
"to_name": null,
"type": null,
"value": {
"end": 6732,
"labels": [
"FAC"
],
"start": 6621,
"text": "He stated that at Parali Police Station the police had shown him a copy of 7/12 extract which had blood stains."
}
},
{
"from_name": null,
"id": "252b82f31c2e4e1bb1e0ecf94d17c1c3",
"to_name": null,
"type": null,
"value": {
"end": 6781,
"labels": [
"FAC"
],
"start": 6733,
"text": "The said copy was recovered from accused Nilesh."
}
},
{
"from_name": null,
"id": "3e565a93205741449088850e3b1fbc39",
"to_name": null,
"type": null,
"value": {
"end": 6852,
"labels": [
"FAC"
],
"start": 6781,
"text": "\n In the 7/12 extract the land was shown to have been owned by Sunanda."
}
},
{
"from_name": null,
"id": "4d9ec2b4a01a42338b105b953cff7b0a",
"to_name": null,
"type": null,
"value": {
"end": 6917,
"labels": [
"FAC"
],
"start": 6853,
"text": "According to the witness, Sunanda was murdered for her property."
}
},
{
"from_name": null,
"id": "ae3a888f90794662a5f99f688c49e731",
"to_name": null,
"type": null,
"value": {
"end": 6950,
"labels": [
"FAC"
],
"start": 6917,
"text": "\n The defence cross-examined him."
}
},
{
"from_name": null,
"id": "98c8ce43cccc438998c1d316d1690e49",
"to_name": null,
"type": null,
"value": {
"end": 7046,
"labels": [
"FAC"
],
"start": 6951,
"text": "He deposed that in family partition his sister Sunanda got 15 guntha land situated at Ahmedpur."
}
},
{
"from_name": null,
"id": "bc42bf6efcd34cde8169a15296b48b37",
"to_name": null,
"type": null,
"value": {
"end": 7142,
"labels": [
"FAC"
],
"start": 7047,
"text": "He admitted that there was no mutation entry made in the record in respect of family partition."
}
},
{
"from_name": null,
"id": "27123fab128f464c9c914e89b57fc8d6",
"to_name": null,
"type": null,
"value": {
"end": 7259,
"labels": [
"FAC"
],
"start": 7143,
"text": "He referred to filing of Regular Civil Suit No.205 of 2003 against his brother Prabhakar in Civil Court at Ahmedpur."
}
},
{
"from_name": null,
"id": "845f3c003c0f45dfab953ff40373ebe4",
"to_name": null,
"type": null,
"value": {
"end": 7323,
"labels": [
"FAC"
],
"start": 7260,
"text": "The distance between Ahmedpur and Talani is about 40 to 50 kms."
}
},
{
"from_name": null,
"id": "2f38fd20bda94e54b608431092baf2ca",
"to_name": null,
"type": null,
"value": {
"end": 7422,
"labels": [
"FAC"
],
"start": 7324,
"text": "He denied the suggestion that appellant Nilesh was not demanding property from him and his mother."
}
},
{
"from_name": null,
"id": "b6e56a84d727497e9486630564e3cf62",
"to_name": null,
"type": null,
"value": {
"end": 7657,
"labels": [
"FAC"
],
"start": 7423,
"text": "He even claimed ignorance that father of Nilesh had gone for \"Chaar Dhaam Yatra\".\n 7) PW-4 is Dadarao Kondiram Bankar, Police Sub Inspector, who was, at the relevant time, working as Police Sub Inspector, Police Station Parali Rural."
}
},
{
"from_name": null,
"id": "7833ef9b5a8e4199b3122df95c4cb6c2",
"to_name": null,
"type": null,
"value": {
"end": 7736,
"labels": [
"FAC"
],
"start": 7658,
"text": "When he was on duty on 22-7-2010 information was received from Vidyanand Kale."
}
},
{
"from_name": null,
"id": "1dbbc1eec9e64af98f8b2e0c725237bc",
"to_name": null,
"type": null,
"value": {
"end": 7763,
"labels": [
"FAC"
],
"start": 7737,
"text": "He visited village Talani."
}
},
{
"from_name": null,
"id": "0d8e09d66f224376996942f8edeaebdb",
"to_name": null,
"type": null,
"value": {
"end": 7897,
"labels": [
"FAC"
],
"start": 7764,
"text": "Behind the house of Baburao Gitte, father of appellant Nilesh, he noticed that preparations for cremation of Sunanda were being made."
}
},
{
"from_name": null,
"id": "1e1ebd9898664ff7ace7c5c67064c0b2",
"to_name": null,
"type": null,
"value": {
"end": 7974,
"labels": [
"FAC"
],
"start": 7898,
"text": "He inspected the dead body and found injuries on the person of the deceased."
}
},
{
"from_name": null,
"id": "a1353a6460074b20aebdda7e630815a9",
"to_name": null,
"type": null,
"value": {
"end": 8040,
"labels": [
"FAC"
],
"start": 7975,
"text": "Black colour mark was noticed on her neck and injury on her head."
}
},
{
"from_name": null,
"id": "d916bfc75d3245cc8198f218c2a6c40a",
"to_name": null,
"type": null,
"value": {
"end": 8139,
"labels": [
"FAC"
],
"start": 8041,
"text": "He made inquest panchanama of the dead body and made arrangement for post mortem on the dead body."
}
},
{
"from_name": null,
"id": "4bf98ebe0d6346bc88c5713fdad55205",
"to_name": null,
"type": null,
"value": {
"end": 8210,
"labels": [
"FAC"
],
"start": 8140,
"text": "Articles 1 to 12 are the photographs which the witness had identified."
}
},
{
"from_name": null,
"id": "cf954899aea64d4f8983000167ac7157",
"to_name": null,
"type": null,
"value": {
"end": 8288,
"labels": [
"FAC"
],
"start": 8211,
"text": "The doctor had given provisional certificate about cause of death of Sunanda."
}
},
{
"from_name": null,
"id": "4188f4b04fed44098e7536202af63a93",
"to_name": null,
"type": null,
"value": {
"end": 8413,
"labels": [
"FAC"
],
"start": 8289,
"text": "As the offence had taken place in the jurisdiction of Bardapur Police Station, he handed over the investigation accordingly."
}
},
{
"from_name": null,
"id": "3807f237a21c4043b00f45a10909940c",
"to_name": null,
"type": null,
"value": {
"end": 8528,
"labels": [
"FAC"
],
"start": 8413,
"text": "\n In his cross-examination certain details in respect of investigation were asked which are not of material nature."
}
},
{
"from_name": null,
"id": "8bf0aed6280e4650bb85cee027d22599",
"to_name": null,
"type": null,
"value": {
"end": 8745,
"labels": [
"FAC"
],
"start": 8528,
"text": "\n 8) PW-6 is Dr. Solunke Radhakishan Sarjerao, who conducted post mortem on the dead body on 22-7-2010 at village Talani between 3.10 p.m. and 4.35 p.m. According to the witness the deceased was 50 year old female.\n "
}
},
{
"from_name": null,
"id": "393cba40596f4dda873a4f3831f913ea",
"to_name": null,
"type": null,
"value": {
"end": 8827,
"labels": [
"FAC"
],
"start": 8745,
"text": "According to the doctor, condition of body of Sunanda was well nourished and cold."
}
},
{
"from_name": null,
"id": "4bc22e3023594af882c73e0896198cbd",
"to_name": null,
"type": null,
"value": {
"end": 8872,
"labels": [
"FAC"
],
"start": 8828,
"text": "Rigor mortise was present in the whole body."
}
},
{
"from_name": null,
"id": "2d80ac9ffb6f4eec9c5f9c5ef39fbee3",
"to_name": null,
"type": null,
"value": {
"end": 8914,
"labels": [
"FAC"
],
"start": 8873,
"text": "Post mortem lividity was fully developed."
}
},
{
"from_name": null,
"id": "08788defe96245fdab9d2e4fba95ef2b",
"to_name": null,
"type": null,
"value": {
"end": 8951,
"labels": [
"FAC"
],
"start": 8914,
"text": "\n There was no sign of decomposition."
}
},
{
"from_name": null,
"id": "3e02e45ef040439c93fb11c1421c03f6",
"to_name": null,
"type": null,
"value": {
"end": 8983,
"labels": [
"FAC"
],
"start": 8952,
"text": "Face was swollen and congested."
}
},
{
"from_name": null,
"id": "46ad99c53c23412a8444ba6c2256906c",
"to_name": null,
"type": null,
"value": {
"end": 9066,
"labels": [
"FAC"
],
"start": 8984,
"text": "There was ligature mark encircled the neck 22 cm in length and half cm in breadth."
}
},
{
"from_name": null,
"id": "3d95028e10a94b1f8e28e0f38b5336b4",
"to_name": null,
"type": null,
"value": {
"end": 9104,
"labels": [
"FAC"
],
"start": 9067,
"text": "It was absent from back side of neck."
}
},
{
"from_name": null,
"id": "983c977f2c224d439c0eccbcd1379d72",
"to_name": null,
"type": null,
"value": {
"end": 9146,
"labels": [
"FAC"
],
"start": 9105,
"text": "It was at the level of thyroid cartilage."
}
},
{
"from_name": null,
"id": "643151ed07c14457b6e7dc9eb0079733",
"to_name": null,
"type": null,
"value": {
"end": 9382,
"labels": [
"FAC"
],
"start": 9146,
"text": "\n The doctor has noticed following injuries on the person of the deceased:-- (i) No evidence of injury to external genitals.\n(ii) Upper extremity flexed at the elbow joint.\n(iii) Fingers were flexed.\n (iv) Lower extremity were extended."
}
},
{
"from_name": null,
"id": "f7a895da1f8149719b5f1e011e694524",
"to_name": null,
"type": null,
"value": {
"end": 9465,
"labels": [
"FAC"
],
"start": 9383,
"text": "There was ligature mark encircled the neck 22 cm in length and half cm in breadth."
}
},
{
"from_name": null,
"id": "57f3dcb5e7a84f8896bd8f0f77657b65",
"to_name": null,
"type": null,
"value": {
"end": 9501,
"labels": [
"FAC"
],
"start": 9466,
"text": "It was absent on back side of neck."
}
},
{
"from_name": null,
"id": "cd71accd8bc745f38ffd185431434768",
"to_name": null,
"type": null,
"value": {
"end": 9543,
"labels": [
"FAC"
],
"start": 9502,
"text": "It was at the level of thyroid cartilage."
}
},
{
"from_name": null,
"id": "c243702ec60b449bb7b40d4f727de725",
"to_name": null,
"type": null,
"value": {
"end": 9625,
"labels": [
"FAC"
],
"start": 9544,
"text": "The ligature mark was horizontal dry, hard, brown in colour and depressed groove."
}
},
{
"from_name": null,
"id": "67db9a1f8f5840f1836000e48d9a1057",
"to_name": null,
"type": null,
"value": {
"end": 9699,
"labels": [
"FAC"
],
"start": 9626,
"text": "On the dissection of ligature mark the subcutaneous tissue is echymossed."
}
},
{
"from_name": null,
"id": "734d70404c4b4d7893e85c176265cafa",
"to_name": null,
"type": null,
"value": {
"end": 9746,
"labels": [
"FAC"
],
"start": 9700,
"text": "There was hemorrhage to the thyroid cartilage."
}
},
{
"from_name": null,
"id": "1b4bb2162fe945c490ade03532bcbd1a",
"to_name": null,
"type": null,
"value": {
"end": 9820,
"labels": [
"FAC"
],
"start": 9748,
"text": "(v) There were abrasion on the chin 5 cm in length and half cm in width."
}
},
{
"from_name": null,
"id": "b6e82293c9904904bb800ed185b0bd27",
"to_name": null,
"type": null,
"value": {
"end": 9900,
"labels": [
"FAC"
],
"start": 9821,
"text": "Extending body of mandible towards right side 6 cm length and half cm in width."
}
},
{
"from_name": null,
"id": "0ad7cadbd56f4eff91bb5c3d9442bb00",
"to_name": null,
"type": null,
"value": {
"end": 9988,
"labels": [
"FAC"
],
"start": 9900,
"text": "\n (vi) There was abrasion on left side of neck 8 to 9 cm in length and half cm in width."
}
},
{
"from_name": null,
"id": "f1e53b7b6e8c46e480ac588747e1622c",
"to_name": null,
"type": null,
"value": {
"end": 10025,
"labels": [
"FAC"
],
"start": 9989,
"text": "There is encircle left side of neck."
}
},
{
"from_name": null,
"id": "a67983751ad742ab9883d28515a5bbde",
"to_name": null,
"type": null,
"value": {
"end": 10102,
"labels": [
"FAC"
],
"start": 10026,
"text": "Abrasion marks absent on elbow in front of neck below the thyroid cartilage."
}
},
{
"from_name": null,
"id": "b6cb9604c4c44af0a0d2689eeeb99d35",
"to_name": null,
"type": null,
"value": {
"end": 10183,
"labels": [
"FAC"
],
"start": 10102,
"text": "\n (vii) Abrasion on right side of neck. 4 to 5 cm in length and half cm in width."
}
},
{
"from_name": null,
"id": "e64fe05f246b47e1b49509b20b5c68ac",
"to_name": null,
"type": null,
"value": {
"end": 10287,
"labels": [
"FAC"
],
"start": 10184,
"text": "Below the level of thyroid cartilage, encircled right side of the neck, It absent in front of the neck."
}
},
{
"from_name": null,
"id": "58c64810edee4fffb5f20d70b621b0a4",
"to_name": null,
"type": null,
"value": {
"end": 10428,
"labels": [
"FAC"
],
"start": 10287,
"text": "\n (viii) There is imprint abrasion on the right wrist joint 7 to 8 cm in length and half cm in width and it absent on back side of the wrist."
}
},
{
"from_name": null,
"id": "5aa2d20c8d5e495b984f0d71aa384519",
"to_name": null,
"type": null,
"value": {
"end": 10557,
"labels": [
"FAC"
],
"start": 10430,
"text": "(ix) Imprint abrasion on right scalp muscles below the knee joint on the outer side 22 to 24 cm in length and half cm in width."
}
},
{
"from_name": null,
"id": "5b95ee3279974ec68a6469554fe0d7d0",
"to_name": null,
"type": null,
"value": {
"end": 10714,
"labels": [
"FAC"
],
"start": 10557,
"text": "\n (x) Imprint abrasion on left calf mussels below the knee joint on outer side i.e. 23 to 24 cm in length and half cm in width and it absent from inner side."
}
},
{
"from_name": null,
"id": "99bc26cb904541d1a262947efcd8f09b",
"to_name": null,
"type": null,
"value": {
"end": 10822,
"labels": [
"FAC"
],
"start": 10714,
"text": "\n (xi) Abrasion on right side of upper and outer gluteal region extending 12 cm in length and 3 cm in width."
}
},
{
"from_name": null,
"id": "54b9e656d12b413f8c63a10a7241f757",
"to_name": null,
"type": null,
"value": {
"end": 10867,
"labels": [
"FAC"
],
"start": 10831,
"text": "Above and over side right side back."
}
},
{
"from_name": null,
"id": "e94da4466fcb4f4dadd72150c8485034",
"to_name": null,
"type": null,
"value": {
"end": 10927,
"labels": [
"FAC"
],
"start": 10867,
"text": "\n (xii) Abrasion mark on both thigh reddish brown in colour."
}
},
{
"from_name": null,
"id": "7d17d8fc14544862b6699ac031435855",
"to_name": null,
"type": null,
"value": {
"end": 11067,
"labels": [
"FAC"
],
"start": 10927,
"text": "\n The doctor noticed following injuries under the scalp:- (i) Contused lacerated wound on right side of the occipital region over the scalp."
}
},
{
"from_name": null,
"id": "0fabebea8f0d482d81d687ece91c7d8d",
"to_name": null,
"type": null,
"value": {
"end": 11155,
"labels": [
"FAC"
],
"start": 11067,
"text": "\n (ii) It parallel to above injury over the scalp at right occipital region 2 x half cm."
}
},
{
"from_name": null,
"id": "1121329004a44db1b6c9146b1bd5906f",
"to_name": null,
"type": null,
"value": {
"end": 11214,
"labels": [
"FAC"
],
"start": 11155,
"text": "\n The injuries were anti mortem and caused within 24 hours."
}
},
{
"from_name": null,
"id": "bf1a8d1fe01b4861b3b261174db40013",
"to_name": null,
"type": null,
"value": {
"end": 11272,
"labels": [
"FAC"
],
"start": 11215,
"text": "The contents of the post mortem (Exhibit 36) were proved."
}
},
{
"from_name": null,
"id": "266065f79009463b8be862d50dcfa7b4",
"to_name": null,
"type": null,
"value": {
"end": 11386,
"labels": [
"FAC"
],
"start": 11273,
"text": "It was stated that, the ligature mark and injuries may be possible by using rope (article 9) shown to the doctor."
}
},
{
"from_name": null,
"id": "426aca803a69424db997ff8045a41b8c",
"to_name": null,
"type": null,
"value": {
"end": 11423,
"labels": [
"FAC"
],
"start": 11387,
"text": "The witness was shown iron rod/pipe."
}
},
{
"from_name": null,
"id": "8556d9cfb38a497aa5403230eed19c09",
"to_name": null,
"type": null,
"value": {
"end": 11502,
"labels": [
"FAC"
],
"start": 11424,
"text": "He opined that injuries to the scalp may be possible by iron pipe (article 4)."
}
},
{
"from_name": null,
"id": "932aea65d50244be8655833cd0a57dc6",
"to_name": null,
"type": null,
"value": {
"end": 11582,
"labels": [
"FAC"
],
"start": 11502,
"text": "\n 9) PW-7 is Vidyadhar Murlidhar Kale, API of Parali Rural Police Station."
}
},
{
"from_name": null,
"id": "743286edbfad44258b166582e4e73818",
"to_name": null,
"type": null,
"value": {
"end": 11642,
"labels": [
"FAC"
],
"start": 11583,
"text": "He was on duty on 22-7-2010 at Parali Rural Police Station."
}
},
{
"from_name": null,
"id": "de4bfa6375db4934ab5fac9babdd4b8e",
"to_name": null,
"type": null,
"value": {
"end": 11710,
"labels": [
"FAC"
],
"start": 11643,
"text": "He proceeded to the spot and saw the dead body of deceased Sunanda."
}
},
{
"from_name": null,
"id": "b6f9fea6de3f46b98405eeb1afa14619",
"to_name": null,
"type": null,
"value": {
"end": 11819,
"labels": [
"FAC"
],
"start": 11711,
"text": "There was strangulation mark on neck and injury on backside of scull and blood was oozing from the injuries."
}
},
{
"from_name": null,
"id": "b1c4dc73152747a991fd9db91b279751",
"to_name": null,
"type": null,
"value": {
"end": 11850,
"labels": [
"FAC"
],
"start": 11820,
"text": "He carried inquest panchanama."
}
},
{
"from_name": null,
"id": "11adde711c174977b6410b21685d3736",
"to_name": null,
"type": null,
"value": {
"end": 11910,
"labels": [
"FAC"
],
"start": 11851,
"text": "He was present at the time of post mortem of the dead body."
}
},
{
"from_name": null,
"id": "3d71f09476d947558fc42b1a1c937439",
"to_name": null,
"type": null,
"value": {
"end": 12047,
"labels": [
"FAC"
],
"start": 11911,
"text": "In his cross-examination the witness deposed that he did not make any entry in the station diary about accidental death of the deceased."
}
},
{
"from_name": null,
"id": "ddb7fa477c2c4226be33c2b8d18bfcd4",
"to_name": null,
"type": null,
"value": {
"end": 12153,
"labels": [
"FAC"
],
"start": 12047,
"text": "\n Dy.S.P. Smt. Bhore, API Birla reached the spot after the witness reached there within one and half hour."
}
},
{
"from_name": null,
"id": "1bd7f860adb841eb882949f6562ac130",
"to_name": null,
"type": null,
"value": {
"end": 12242,
"labels": [
"FAC"
],
"start": 12154,
"text": "His statement was recorded by the investigating officer PSI Rathod on 15th January 2011."
}
},
{
"from_name": null,
"id": "0faa3782bb53408b92ffcf13082b6c94",
"to_name": null,
"type": null,
"value": {
"end": 12416,
"labels": [
"FAC"
],
"start": 12243,
"text": "He denied the suggestion that during investigation there was pressure of political leaders like Mr. Gopinath Mundhe, Dhananjay Mundhe, Pankaja Mundhe and Sudhakar Nagargoje."
}
},
{
"from_name": null,
"id": "4c1477dcf855422d9f072a0f7cb25aff",
"to_name": null,
"type": null,
"value": {
"end": 12513,
"labels": [
"FAC"
],
"start": 12416,
"text": "\n 10) PW-8 is Swati Rambhau Bhore, who was Deputy Superintendent of Police at the relevant time."
}
},
{
"from_name": null,
"id": "cd02dec3a51346419c532d3440a5a387",
"to_name": null,
"type": null,
"value": {
"end": 12566,
"labels": [
"FAC"
],
"start": 12514,
"text": "She reached the spot on receiving an anonymous call."
}
},
{
"from_name": null,
"id": "b15ed0d438894b3bb1253bee76cabe2f",
"to_name": null,
"type": null,
"value": {
"end": 12594,
"labels": [
"FAC"
],
"start": 12567,
"text": "She had seen the dead body."
}
},
{
"from_name": null,
"id": "e2efdb3c1e984706ab0a3892fcac4fd2",
"to_name": null,
"type": null,
"value": {
"end": 12672,
"labels": [
"FAC"
],
"start": 12595,
"text": "She denied the suggestion that she received phone call of Sudhakar Nagargoje."
}
},
{
"from_name": null,
"id": "af11ab50e64b41bfb55c7de08bd32c2b",
"to_name": null,
"type": null,
"value": {
"end": 12782,
"labels": [
"FAC"
],
"start": 12673,
"text": "She denied suggestion that at the instance of Sudhakar Nagargoje the appellant Nilesh was falsely implicated."
}
},
{
"from_name": null,
"id": "dd6dc239b08643c2bd2000954c82a3fb",
"to_name": null,
"type": null,
"value": {
"end": 12866,
"labels": [
"FAC"
],
"start": 12782,
"text": "\n 11) PW-9 is Sunil Shrinivas Birla, who was Police Inspector at the relevant time."
}
},
{
"from_name": null,
"id": "d2046c62773d45eaa114128997cfb3f4",
"to_name": null,
"type": null,
"value": {
"end": 12909,
"labels": [
"FAC"
],
"start": 12867,
"text": "He was on duty at Bardapur Police Station."
}
},
{
"from_name": null,
"id": "d6e0c2561f6b471fa61582042f71ac7a",
"to_name": null,
"type": null,
"value": {
"end": 12991,
"labels": [
"FAC"
],
"start": 12910,
"text": "He registered the crime on behalf of the State and carried out the investigation."
}
},
{
"from_name": null,
"id": "0e5f715e297f4cd1bd509e467284f9d6",
"to_name": null,
"type": null,
"value": {
"end": 13093,
"labels": [
"FAC"
],
"start": 12992,
"text": "He has seized incriminating articles under panchanama and sent the muddemal to the Chemical Analyser."
}
},
{
"from_name": null,
"id": "75f86c4807f5450f9e2ecce14ef25ced",
"to_name": null,
"type": null,
"value": {
"end": 13199,
"labels": [
"FAC"
],
"start": 13094,
"text": "In his cross- examination the witness deposed that accidental death report was not recorded in this case."
}
},
{
"from_name": null,
"id": "dd483d90aae540f1b4a75dc36d009cf0",
"to_name": null,
"type": null,
"value": {
"end": 13325,
"labels": [
"FAC"
],
"start": 13200,
"text": "He deposed that from the date of registration of crime till completion of investigation he did not have any doubt on anybody."
}
},
{
"from_name": null,
"id": "0b3a65375d6e448bb1aad6551171c25d",
"to_name": null,
"type": null,
"value": {
"end": 13373,
"labels": [
"FAC"
],
"start": 13326,
"text": "He recorded statement of Sudhakar on 10-9-2010."
}
},
{
"from_name": null,
"id": "a8477a53f0f2444191d9faf55319864b",
"to_name": null,
"type": null,
"value": {
"end": 13483,
"labels": [
"FAC"
],
"start": 13374,
"text": "During investigation the witness recovered iron rod under seizure panchanama from the house of Motiram Gitte."
}
},
{
"from_name": null,
"id": "4a55b597bab54b1193e2b8a4fedb4284",
"to_name": null,
"type": null,
"value": {
"end": 13587,
"labels": [
"FAC"
],
"start": 13484,
"text": "The witness volunteered that accused Nilesh was residing in the house of Motiram Gitte on rental basis."
}
},
{
"from_name": null,
"id": "a4c3aa78862c49cdb04581c10435f2f9",
"to_name": null,
"type": null,
"value": {
"end": 13777,
"labels": [
"FAC"
],
"start": 13588,
"text": "To the question put up by the court the witness answered as under : Question : From which document from case file you came to know that accused Nilesh was tenant in house of Motiram Gitte ?"
}
},
{
"from_name": null,
"id": "53468e5f655541c3af891db403ff0ef2",
"to_name": null,
"type": null,
"value": {
"end": 13903,
"labels": [
"FAC"
],
"start": 13777,
"text": "\n Answer: According to documents accused Nilesh was residing in Motiram Gitte, but it was not revealed that he was his tenant."
}
},
{
"from_name": null,
"id": "c8052a4e04034f629299fe7954f71102",
"to_name": null,
"type": null,
"value": {
"end": 14057,
"labels": [
"FAC"
],
"start": 13903,
"text": "\n The witness deposed that, he made efforts to record statement of husband of deceased Sunanda, Dr. Baburao Gitte, but he was reluctant to give statement."
}
},
{
"from_name": null,
"id": "e04e20dbcbf44d93a1edf0ae153483b2",
"to_name": null,
"type": null,
"value": {
"end": 14147,
"labels": [
"FAC"
],
"start": 14058,
"text": "The witness met Dr. Baburao Gitte 3 to 4 days after the incident of offence at his house."
}
},
{
"from_name": null,
"id": "f7933b14ba2742c3bd21a5d7392bdfab",
"to_name": null,
"type": null,
"value": {
"end": 14250,
"labels": [
"FAC"
],
"start": 14148,
"text": "He further deposed that the house where the incident of offence took place is owned by accused Nilesh."
}
},
{
"from_name": null,
"id": "a0f7ee3c02b9472a98c23863b36c395d",
"to_name": null,
"type": null,
"value": {
"end": 14349,
"labels": [
"FAC"
],
"start": 14251,
"text": "The witness did not collect any further documentary evidence in respect of ownership of the house."
}
},
{
"from_name": null,
"id": "a267577583494c8e85f741b3c668d27e",
"to_name": null,
"type": null,
"value": {
"end": 14460,
"labels": [
"FAC"
],
"start": 14350,
"text": "The witness denied that there was pressure of political leaders like Mr. Gopinath Mundhe and Dhananjay Mundhe."
}
},
{
"from_name": null,
"id": "e4221bba6d004a3fae03f066bd6d278c",
"to_name": null,
"type": null,
"value": {
"end": 14572,
"labels": [
"FAC"
],
"start": 14461,
"text": "The witness denied that at the instance of Sudhakar Nagargoje and Dy. S.P. Bhore he was making false statement."
}
},
{
"from_name": null,
"id": "ac3a378f7f9e445aa1220bf544bd66bf",
"to_name": null,
"type": null,
"value": {
"end": 14665,
"labels": [
"FAC"
],
"start": 14572,
"text": "\n 12) PW-10 is Narsing Patloba Gitte who was working as Circle Officer at Ghatnandur Circle."
}
},
{
"from_name": null,
"id": "8922ec6e0fcc42d7b4a29b5c64ac5baa",
"to_name": null,
"type": null,
"value": {
"end": 14744,
"labels": [
"FAC"
],
"start": 14666,
"text": "He prepared map of spot of offence in Crime No.39/2010 which is at Exhibit 65."
}
},
{
"from_name": null,
"id": "bfed7508c530424699ba0f64aaf3d914",
"to_name": null,
"type": null,
"value": {
"end": 14829,
"labels": [
"FAC"
],
"start": 14744,
"text": "\n 13) PW-11 is Shesharao Megha Rathod, Police Sub Inspector, who filed charge sheet."
}
},
{
"from_name": null,
"id": "18a8bb6d4f2a41e5aa069cab48c36cf6",
"to_name": null,
"type": null,
"value": {
"end": 14978,
"labels": [
"FAC"
],
"start": 14830,
"text": "He denied suggestion that Prabhakar and Sudhakar wanted to grab the property of the deceased and they have falsely involved the son of the deceased."
}
},
{
"from_name": null,
"id": "05c1120d907d4a8e8c09eda720cc43b3",
"to_name": null,
"type": null,
"value": {
"end": 15106,
"labels": [
"ARG_PETITIONER"
],
"start": 14978,
"text": "\n 14) The learned counsel for the appellant Shri. B.R.\n Warma submitted that there is no motive for Nilesh to commit the crime."
}
},
{
"from_name": null,
"id": "4c630e86b8b6477cb3ea19410bb8aa1a",
"to_name": null,
"type": null,
"value": {
"end": 15147,
"labels": [
"ARG_PETITIONER"
],
"start": 15107,
"text": "There is no eye witness to the incident."
}
},
{
"from_name": null,
"id": "49bf3cf0cfd34e5fa3f9d0c780ae2b39",
"to_name": null,
"type": null,
"value": {
"end": 15323,
"labels": [
"ARG_PETITIONER"
],
"start": 15147,
"text": "\n PW Sudhakar, brother of deceased Sunanda is deliberately deposing against Nilesh as he has interest in the property which may be inherited by Nilesh as his mother's property."
}
},
{
"from_name": null,
"id": "7b3e0a2af1114e13874488b6dc6e34e5",
"to_name": null,
"type": null,
"value": {
"end": 15390,
"labels": [
"ARG_PETITIONER"
],
"start": 15324,
"text": "The police machinery was under pressure of political heavyweights."
}
},
{
"from_name": null,
"id": "b0e28585cad54fcbb7ac6150f87f6f74",
"to_name": null,
"type": null,
"value": {
"end": 15435,
"labels": [
"ARG_PETITIONER"
],
"start": 15391,
"text": "The investigation is not carried out fairly."
}
},
{
"from_name": null,
"id": "161039c92c5943018cc24273930db192",
"to_name": null,
"type": null,
"value": {
"end": 15565,
"labels": [
"ARG_PETITIONER"
],
"start": 15436,
"text": "The investigation officers have hurriedly conducted the investigation which has caused serious prejudice to the appellant Nilesh."
}
},
{
"from_name": null,
"id": "414c801662844e81b66c5acd19b8303d",
"to_name": null,
"type": null,
"value": {
"end": 15638,
"labels": [
"ARG_PETITIONER"
],
"start": 15566,
"text": "The articles seized like iron rod, rope are not incriminating in nature."
}
},
{
"from_name": null,
"id": "8ca559efc17047108e484370e9c1568b",
"to_name": null,
"type": null,
"value": {
"end": 15693,
"labels": [
"ARG_PETITIONER"
],
"start": 15639,
"text": "The appellant Nilesh was not residing with his mother."
}
},
{
"from_name": null,
"id": "b6810b4398ce49fd888833e3d6e1753b",
"to_name": null,
"type": null,
"value": {
"end": 15871,
"labels": [
"ARG_PETITIONER"
],
"start": 15694,
"text": "The panch witnesses are tutored and except PW-3 Sudhakar, who is highly interested in prosecution, there is no independent witness whose evidence is recorded by the prosecution."
}
},
{
"from_name": null,
"id": "6b63c3e1d2bb48d1996f9a32c0717ea5",
"to_name": null,
"type": null,
"value": {
"end": 15914,
"labels": [
"ARG_PETITIONER"
],
"start": 15872,
"text": "The chain of circumstance is not complete."
}
},
{
"from_name": null,
"id": "1bbb23d5c00f4f6ba935287d5cc3c465",
"to_name": null,
"type": null,
"value": {
"end": 16030,
"labels": [
"ARG_PETITIONER"
],
"start": 15915,
"text": "Therefore, it be held that the prosecution has failed to establish the case against Nilesh beyond reasonable doubt."
}
},
{
"from_name": null,
"id": "a64aa97aca35429d926f6ffa0a374eb4",
"to_name": null,
"type": null,
"value": {
"end": 16129,
"labels": [
"ARG_PETITIONER"
],
"start": 16031,
"text": "The learned counsel in support of his submissions, has placed reliance on the following judgments."
}
},
{
"from_name": null,
"id": "5115aa30a0d54f76828446a5fd25d2e5",
"to_name": null,
"type": null,
"value": {
"end": 16589,
"labels": [
"ARG_PETITIONER"
],
"start": 16129,
"text": "\n (1) State of Punjab v. Karnail Singh, AIR 2003 SC 3609.\n (2) Vithal Tukaram More v. State of Maharashtra, AIR 2002 SC 2715.\n (3) Vipul Chandrakant Jain v. The State of Maharashtra, Criminal Appeal No.628 of 2002 decided on 19th January 2005.\n (4) Mulak Raj v. State of Haryana, AIR 1996 SC 2868.\n (5) Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan, 2013(4) Supreme 131.\n (6) Datta Ganpat Chandode v. State of Maharashtra, 2012 All MR (Cri) 1698.\n 15) "
}
},
{
"from_name": null,
"id": "4350b33834ee492aaf0fe9dd15cab399",
"to_name": null,
"type": null,
"value": {
"end": 16643,
"labels": [
"ARG_PETITIONER"
],
"start": 16589,
"text": "The learned counsel appearing for appellant Balasaheb"
}
},
{
"from_name": null,
"id": "506615e8d7354604945275529c109ca5",
"to_name": null,
"type": null,
"value": {
"end": 16789,
"labels": [
"ARG_PETITIONER"
],
"start": 16644,
"text": "in support of his submissions, has placed reliance on the reported judgment in Ashraf Hussain Shah v. State of Maharashtra, 1996 Cri.L.J. 3147.\n "
}
},
{
"from_name": null,
"id": "fcee7f2ffeeb4454a6d360c39b9443bb",
"to_name": null,
"type": null,
"value": {
"end": 16854,
"labels": [
"NONE"
],
"start": 16789,
"text": "We have perused the judgments cited supra by the learned counsel."
}
},
{
"from_name": null,
"id": "fcf256d7c2754333b16936f9f394509f",
"to_name": null,
"type": null,
"value": {
"end": 17104,
"labels": [
"ARG_RESPONDENT"
],
"start": 16854,
"text": "\n 16) The learned Additional Public Prosecutor for the State submitted that there is strong motive emerging from the evidence and the same is in respect of immovable property allotted to the share of deceased Sunanda which was of considerable value."
}
},
{
"from_name": null,
"id": "363fe232436b45d1b6c7a016020e87e2",
"to_name": null,
"type": null,
"value": {
"end": 17177,
"labels": [
"ARG_RESPONDENT"
],
"start": 17105,
"text": "A civil suit was contested between the brothers of the deceased Sunanda."
}
},
{
"from_name": null,
"id": "981a192a33ac4b3e871d8f8d231f417b",
"to_name": null,
"type": null,
"value": {
"end": 17288,
"labels": [
"ARG_RESPONDENT"
],
"start": 17178,
"text": "The defence version is not reliable and believable that the appellant Nilesh was not residing with his mother."
}
},
{
"from_name": null,
"id": "6ce6994df0d54341a7448f2f9d4315aa",
"to_name": null,
"type": null,
"value": {
"end": 17512,
"labels": [
"ARG_RESPONDENT"
],
"start": 17289,
"text": "In stead, it was suggested that as father of the appellant Nilesh, being Government Medical Officer, was engaged in transferable job, so he had made arrangement wherein his wife would stay at the village along with his son."
}
},
{
"from_name": null,
"id": "1dc50aa490e64e768378923aa5e7d6ca",
"to_name": null,
"type": null,
"value": {
"end": 17580,
"labels": [
"ARG_RESPONDENT"
],
"start": 17513,
"text": "Recovery of articles made by the police is incriminating in nature."
}
},
{
"from_name": null,
"id": "ead25248056240628a881c3ac2d4d245",
"to_name": null,
"type": null,
"value": {
"end": 17633,
"labels": [
"ARG_RESPONDENT"
],
"start": 17580,
"text": "\n The medical evidence supports the prosecution case."
}
},
{
"from_name": null,
"id": "81a4267b2663455f8a3c9bdcf251042e",
"to_name": null,
"type": null,
"value": {
"end": 17728,
"labels": [
"ARG_RESPONDENT"
],
"start": 17634,
"text": "It was submitted that conduct of the appellant Nilesh has to be minutely and seriously viewed."
}
},
{
"from_name": null,
"id": "b72c682b79374d1b90b2481f82162a96",
"to_name": null,
"type": null,
"value": {
"end": 17820,
"labels": [
"ARG_RESPONDENT"
],
"start": 17729,
"text": "Here is a son who had committed murder of his mother by severely beating and strangulating."
}
},
{
"from_name": null,
"id": "d3f3336186b244d7b42ffb77a6317449",
"to_name": null,
"type": null,
"value": {
"end": 17976,
"labels": [
"ARG_RESPONDENT"
],
"start": 17821,
"text": "If the police had not arrived at the spot at the relevant time the appellant-Nilesh would have cremated his mother and the evidence would have disappeared."
}
},
{
"from_name": null,
"id": "5e3187884c1f42bbada90148a47047dc",
"to_name": null,
"type": null,
"value": {
"end": 18019,
"labels": [
"ANALYSIS"
],
"start": 17976,
"text": "\n 17) We have perused the entire evidence."
}
},
{
"from_name": null,
"id": "99e88b57d2fb4eb9887008202acc436a",
"to_name": null,
"type": null,
"value": {
"end": 18084,
"labels": [
"ANALYSIS"
],
"start": 18020,
"text": "We find that the conduct of the appellant Nilesh is blameworthy."
}
},
{
"from_name": null,
"id": "cf1c2e0c9e3b4f93a41d3702f2260290",
"to_name": null,
"type": null,
"value": {
"end": 18270,
"labels": [
"ANALYSIS"
],
"start": 18084,
"text": "\n No explanation is coming forward as to why in spite of receiving serious injuries by the deceased the appellant Nilesh, son of the deceased, made arrangements for cremating his mother."
}
},
{
"from_name": null,
"id": "d157dd47368e43fbbae14db273880eb7",
"to_name": null,
"type": null,
"value": {
"end": 18420,
"labels": [
"ANALYSIS"
],
"start": 18271,
"text": "Soon before the dead body was to be taken for cremation the police reached the spot and could witness the injuries on the person of deceased Sunanda."
}
},
{
"from_name": null,
"id": "bd13a79900ed4b7ba64ed0128214e0f4",
"to_name": null,
"type": null,
"value": {
"end": 18499,
"labels": [
"ANALYSIS"
],
"start": 18421,
"text": "The appellant Nilesh did not brother to lodge any formal report to the police."
}
},
{
"from_name": null,
"id": "0253626b06b64892a395385831cabb92",
"to_name": null,
"type": null,
"value": {
"end": 18581,
"labels": [
"ANALYSIS"
],
"start": 18500,
"text": "No intimation was given to anybody in respect of injuries suffered by his mother."
}
},
{
"from_name": null,
"id": "2802c95fde27434ea612ba8c35327647",
"to_name": null,
"type": null,
"value": {
"end": 18637,
"labels": [
"ANALYSIS"
],
"start": 18582,
"text": "His keeping silence goes against his plea of innocence."
}
},
{
"from_name": null,
"id": "448c6afe0a6b4cfdb6559bce46ce7868",
"to_name": null,
"type": null,
"value": {
"end": 18745,
"labels": [
"ANALYSIS"
],
"start": 18638,
"text": "In normal circumstance, son would certainly raise hue and cry after seeing his mother in injured condition."
}
},
{
"from_name": null,
"id": "776860b89f8045ff91d0c49476ef4965",
"to_name": null,
"type": null,
"value": {
"end": 18775,
"labels": [
"ANALYSIS"
],
"start": 18746,
"text": "She had died unnatural death."
}
},
{
"from_name": null,
"id": "866045206e664e5394dff6fc669e2d2c",
"to_name": null,
"type": null,
"value": {
"end": 18835,
"labels": [
"ANALYSIS"
],
"start": 18776,
"text": "The medical evidence has supported the prosecution version."
}
},
{
"from_name": null,
"id": "bbbf2729902e46638d46dd6b555b2b2b",
"to_name": null,
"type": null,
"value": {
"end": 18949,
"labels": [
"ANALYSIS"
],
"start": 18836,
"text": "In the statement under section 313 of the Criminal Procedure Code the appellant Nilesh had stated thus : Q.No.46."
}
},
{
"from_name": null,
"id": "266543ebcefa45a1aba79102de12ba2d",
"to_name": null,
"type": null,
"value": {
"end": 18990,
"labels": [
"ANALYSIS"
],
"start": 18950,
"text": "Why witnesses are deposing against you ?"
}
},
{
"from_name": null,
"id": "946a58ca6af2496d993caa605b5115eb",
"to_name": null,
"type": null,
"value": {
"end": 19079,
"labels": [
"ANALYSIS"
],
"start": 18990,
"text": "\n Ans.: I say that land in name of my mother situated at Ahmedpur which having plotings."
}
},
{
"from_name": null,
"id": "c381ead2a89b405c9a9d675724ce8065",
"to_name": null,
"type": null,
"value": {
"end": 19175,
"labels": [
"ANALYSIS"
],
"start": 19080,
"text": "My maternal uncle (Mama) Sudhakar Nagargoje wants to grab that land standing in name of mother."
}
},
{
"from_name": null,
"id": "8757397c92e74d7d98bbf3a4958f2485",
"to_name": null,
"type": null,
"value": {
"end": 19279,
"labels": [
"ANALYSIS"
],
"start": 19175,
"text": "\n Witnesses are telling false story at instance of my maternal uncle Sudhakar Nagargoje.\"\n 18) "
}
},
{
"from_name": null,
"id": "6b284b90e51249a3b24cc09a7f1dd3d6",
"to_name": null,
"type": null,
"value": {
"end": 19557,
"labels": [
"ANALYSIS"
],
"start": 19279,
"text": "Even if for the sake of argument it is believed that Sudhakar had involved appellant Nilesh in the commission of murder of his mother but the question remains as to why the appellant maintained silence throughout and instead showed haste in preparation for cremating his mother."
}
},
{
"from_name": null,
"id": "d3feea074b554b51aec7fc3f55d33a23",
"to_name": null,
"type": null,
"value": {
"end": 19777,
"labels": [
"ANALYSIS"
],
"start": 19557,
"text": "\n 19) From the evidence we can gather that though the appellant had taken a plea that he was not residing with his mother but, instead, residing in the house of one Motiram Gitte as a tenant, the plea is not convincing."
}
},
{
"from_name": null,
"id": "922de6e9387f4f7586e2a43dd1284c8d",
"to_name": null,
"type": null,
"value": {
"end": 19860,
"labels": [
"ANALYSIS"
],
"start": 19778,
"text": "The house where mother of the deceased was residing was owned by appellant Nilesh."
}
},
{
"from_name": null,
"id": "8a174296d5f241ebaf407edfc1449d44",
"to_name": null,
"type": null,
"value": {
"end": 19973,
"labels": [
"ANALYSIS"
],
"start": 19861,
"text": "There is no reason coming forward as to why appellant Nilesh was said to be residing separately from his mother."
}
},
{
"from_name": null,
"id": "10c3afed64544c5f83290dfb28746a5b",
"to_name": null,
"type": null,
"value": {
"end": 20284,
"labels": [
"ANALYSIS"
],
"start": 19974,
"text": "When the evidence indicates that father of the appellant Nilesh had made this arrangement so that the mother and son could stay together as he was discharging his duties as a Government Medical Officer, there is no convincing reason to accept the plea of the defence in respect of separate residence of Nilesh."
}
},
{
"from_name": null,
"id": "80525467246b4939932ac64119d55f47",
"to_name": null,
"type": null,
"value": {
"end": 20467,
"labels": [
"ANALYSIS"
],
"start": 20284,
"text": "\n 20) The other strong circumstance going against the appellant Nilesh is the post mortem report which indicates that the deceased was mercilessly beaten and thereafter strangulated."
}
},
{
"from_name": null,
"id": "8a44c9f98ce549948ceb671d76e8916f",
"to_name": null,
"type": null,
"value": {
"end": 20520,
"labels": [
"ANALYSIS"
],
"start": 20468,
"text": "The cause of death is asphyxia due to strangulation."
}
},
{
"from_name": null,
"id": "9b1c9707b5a44f5b99140cdf51ccce53",
"to_name": null,
"type": null,
"value": {
"end": 20547,
"labels": [
"ANALYSIS"
],
"start": 20521,
"text": "It was an unnatural death."
}
},
{
"from_name": null,
"id": "8b6b47d545bd4371a3aa0628bf8baa18",
"to_name": null,
"type": null,
"value": {
"end": 20659,
"labels": [
"ANALYSIS"
],
"start": 20548,
"text": "The appellant Nilesh has not explained anything regarding the circumstances resulting into death of his mother."
}
},
{
"from_name": null,
"id": "d2afedd79e534c979d4c1fe130653cc0",
"to_name": null,
"type": null,
"value": {
"end": 20741,
"labels": [
"ANALYSIS"
],
"start": 20659,
"text": "\n 21) The villagers had gathered and the dead body was to be taken for cremation."
}
},
{
"from_name": null,
"id": "ed7d0d8f00ca4638aab89c0718e01b1d",
"to_name": null,
"type": null,
"value": {
"end": 21008,
"labels": [
"ANALYSIS"
],
"start": 20742,
"text": "Till this moment the appellant has not whispered to anybody regarding the circumstances in which the deceased suffered injuries or whether the appellant had any suspicion or doubt about conduct of any other persons who might have caused these injuries to his mother."
}
},
{
"from_name": null,
"id": "5aa13b284f6f4eba9fc97ed509798876",
"to_name": null,
"type": null,
"value": {
"end": 21189,
"labels": [
"ANALYSIS"
],
"start": 21009,
"text": "The testimony of PW-3 Sudhakar clearly blames the appellant-Nilesh and indicates that he was having interest in the property, which was a valuable property belonging to his mother."
}
},
{
"from_name": null,
"id": "6ae9421f18ea4439978a868f1c79befe",
"to_name": null,
"type": null,
"value": {
"end": 21281,
"labels": [
"ANALYSIS"
],
"start": 21189,
"text": "\n 22) Another intriguing feature in the case is silence of the husband of deceased Sunanda."
}
},
{
"from_name": null,
"id": "69c6add3f2d649af886216ac87b8bf74",
"to_name": null,
"type": null,
"value": {
"end": 21422,
"labels": [
"ANALYSIS"
],
"start": 21282,
"text": "The police officers tried for three to four times to elicit from husband of the deceased Sunanda but he was reluctant to make any statement."
}
},
{
"from_name": null,
"id": "b38d088ea5824e6ebbc51d5b8d5e0277",
"to_name": null,
"type": null,
"value": {
"end": 21506,
"labels": [
"ANALYSIS"
],
"start": 21423,
"text": "This further causes shadow on the plea of innocence raised by the appellant-Nilesh."
}
},
{
"from_name": null,
"id": "61f23b5ac2aa4237affab2ad4e0090d9",
"to_name": null,
"type": null,
"value": {
"end": 21623,
"labels": [
"ANALYSIS"
],
"start": 21506,
"text": "\n 23) On behalf of the defence it was submitted that PW-3 - Sudhakar did not attend the funeral of deceased Sunanda."
}
},
{
"from_name": null,
"id": "37f00f8f712246aa8f2b0aa83dcff252",
"to_name": null,
"type": null,
"value": {
"end": 21747,
"labels": [
"ANALYSIS"
],
"start": 21624,
"text": "By that conduct of PW-3 Sudhakar we cannot discard the prosecution version for upholding innocence of the appellant Nilesh."
}
},
{
"from_name": null,
"id": "10b0fc2edec24fa69fe66e5ad9334943",
"to_name": null,
"type": null,
"value": {
"end": 21875,
"labels": [
"ANALYSIS"
],
"start": 21747,
"text": "\n 24) We do not find any convincing reasoning to hold that due to political pressure the police falsely involved the appellant."
}
},
{
"from_name": null,
"id": "9e492606c19241b682f4578bb1a32425",
"to_name": null,
"type": null,
"value": {
"end": 22094,
"labels": [
"ANALYSIS"
],
"start": 21876,
"text": "Appellant Nilesh had ample opportunity and time to say something till fag end of the trial regarding the incident in-question but except blaming PW-3 Sudhakar the appellant Nilesh preferred not to say anything further."
}
},
{
"from_name": null,
"id": "bfba1edd6dcd4dc486a029dbbb72296a",
"to_name": null,
"type": null,
"value": {
"end": 22264,
"labels": [
"ANALYSIS"
],
"start": 22095,
"text": "From the prosecution evidence we do not notice that any other person residing in the village had grudge against the deceased to mercilessly beat her and strangulate her."
}
},
{
"from_name": null,
"id": "b0213881d68a4ed9884f7dfda75e938d",
"to_name": null,
"type": null,
"value": {
"end": 22341,
"labels": [
"ANALYSIS"
],
"start": 22265,
"text": "No other person was shown to be the beneficiary if Sunanda is done to death."
}
},
{
"from_name": null,
"id": "fb8d17d97a0e4294887672583f7b0a5b",
"to_name": null,
"type": null,
"value": {
"end": 22586,
"labels": [
"ANALYSIS"
],
"start": 22342,
"text": "If it is presumed that PW-3 Sudhakar was interested in involving the appellant Nilesh in the crime so as to grab the property of Sunanda then just because Nilesh is involved in the crime his legal rights to the property do not get extinguished."
}
},
{
"from_name": null,
"id": "0febb51625b64f0d9715bc1b281cefc2",
"to_name": null,
"type": null,
"value": {
"end": 22685,
"labels": [
"ANALYSIS"
],
"start": 22586,
"text": "\n Therefore, theory propounded by the defence on that count is also not convincing and sustainable."
}
},
{
"from_name": null,
"id": "f419bc83b53941a9be7af9bc725b047f",
"to_name": null,
"type": null,
"value": {
"end": 22819,
"labels": [
"ANALYSIS"
],
"start": 22685,
"text": "\n 25) Considering the facts of the case certain inferences are required to be drawn to the extent of conduct of the appellant Nilesh."
}
},
{
"from_name": null,
"id": "41514e3b5792452ab1cbe707de11de8c",
"to_name": null,
"type": null,
"value": {
"end": 22927,
"labels": [
"ANALYSIS"
],
"start": 22820,
"text": "The haste shown to cremate his mother speaks for itself and indicates guilty mind of the appellant Nilesh."
}
},
{
"from_name": null,
"id": "7e483579d5d84b819c6e87568103defb",
"to_name": null,
"type": null,
"value": {
"end": 23087,
"labels": [
"ANALYSIS"
],
"start": 22927,
"text": "\n 26) As regards the appellant Balasaheb, we find that he has been involved with allegation that as he had helped appellant Nilesh in commission of the crime."
}
},
{
"from_name": null,
"id": "5bd31d47c18c48c0af2473e3b8af9f68",
"to_name": null,
"type": null,
"value": {
"end": 23206,
"labels": [
"ANALYSIS"
],
"start": 23087,
"text": "\n Except recovery at the instance of appellant Balasaheb, the prosecution has failed to bring home guilty of Balasaheb."
}
},
{
"from_name": null,
"id": "15b94c0ded174dafafdc919b677961ee",
"to_name": null,
"type": null,
"value": {
"end": 23247,
"labels": [
"ANALYSIS"
],
"start": 23207,
"text": "Recovery is not incriminating in nature."
}
},
{
"from_name": null,
"id": "8891370101e34ea0a4073ac1cadf3507",
"to_name": null,
"type": null,
"value": {
"end": 23355,
"labels": [
"ANALYSIS"
],
"start": 23248,
"text": "The prosecution evidence is lacking to establish active involvement of appellant-Balasaheb Gangadhar Gitte."
}
},
{
"from_name": null,
"id": "97a14eb1887b45b39aad4c79ddee8392",
"to_name": null,
"type": null,
"value": {
"end": 23444,
"labels": [
"ANALYSIS"
],
"start": 23355,
"text": "\n There is no motive for Balasaheb to assist appellant-Nilesh in commission of the crime."
}
},
{
"from_name": null,
"id": "eec273c59af040ae87b77db4e4eadc49",
"to_name": null,
"type": null,
"value": {
"end": 23542,
"labels": [
"ANALYSIS"
],
"start": 23444,
"text": "\n 27) We have perused the reasoning adopted by the trial Court in convicting both the appellants."
}
},
{
"from_name": null,
"id": "bee6f60696514b9db10ee50b5f319d16",
"to_name": null,
"type": null,
"value": {
"end": 23661,
"labels": [
"ANALYSIS"
],
"start": 23543,
"text": "We are not convinced with the reasoning of the trial Court in convicting and sentencing the appellant Balasaheb Gitte."
}
},
{
"from_name": null,
"id": "d8a607bb53db4114a2cc665bb8dd1e5a",
"to_name": null,
"type": null,
"value": {
"end": 23830,
"labels": [
"ANALYSIS"
],
"start": 23661,
"text": "\n At the same time, the trial Court has scanned the evidence properly and reached appropriate conclusions while convicting and sentencing appellant-Nilesh Baburao Gitte."
}
},
{
"from_name": null,
"id": "c819510706534b138244f8dec60bd821",
"to_name": null,
"type": null,
"value": {
"end": 24017,
"labels": [
"RATIO"
],
"start": 23830,
"text": "\n 28) We have perused the case law submitted by the learned counsel Shri. Warma in respect of the principles that in a case based on circumstantial evidence, the motive plays vital role."
}
},
{
"from_name": null,
"id": "0e6bd7bddf15407991fd3bd6f004ca58",
"to_name": null,
"type": null,
"value": {
"end": 24140,
"labels": [
"RATIO"
],
"start": 24018,
"text": "The chain of circumstances must be so complete so as to clearly point out that the appellant alone must the guilty person."
}
},
{
"from_name": null,
"id": "c025db6a0805469e9f0b35e961121bf1",
"to_name": null,
"type": null,
"value": {
"end": 24283,
"labels": [
"RATIO"
],
"start": 24141,
"text": "These circumstances shall be conclusively established and in case the chain of circumstances is not complete then benefit goes to the accused."
}
},
{
"from_name": null,
"id": "567c3733f93d48bbb6e2e1462d4e347f",
"to_name": null,
"type": null,
"value": {
"end": 24648,
"labels": [
"RATIO"
],
"start": 24284,
"text": "Considering the facts, circumstances and the evidence brought on record we are of the opinion that, the conviction and sentence awarded by the trial Court against the appellant Nilesh Baburao Gitte is required to be confirmed whereas, we are not inclined to confirm the finding of guilt recorded by the trial Court against the appellant Balasaheb Gangadhar Gitte."
}
},
{
"from_name": null,
"id": "26de83d3414f4d5f8080356bdfaeec94",
"to_name": null,
"type": null,
"value": {
"end": 24705,
"labels": [
"RPC"
],
"start": 24648,
"text": "\n ORDER 29) Criminal Appeal No.447 of 2012 is dismissed."
}
},
{
"from_name": null,
"id": "c1f19a7519a74921aad46c91973a7604",
"to_name": null,
"type": null,
"value": {
"end": 24754,
"labels": [
"RPC"
],
"start": 24705,
"text": "\n 30) Criminal Appeal No.502 of 2012 is allowed."
}
},
{
"from_name": null,
"id": "48be04e8d9bf4dcda05a0b02f6edde53",
"to_name": null,
"type": null,
"value": {
"end": 25146,
"labels": [
"RPC"
],
"start": 24755,
"text": "The judgment and order dated 22-6-2012 passed by the learned Additional Sessions Judge-2, Ambajogai in Sessions Case No.42 of 2011 convicting the appellant Balasaheb Gangadhar Gitte for an offence punishable under section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.2,000/-,in default, to suffer simple imprisonment for three months"
}
},
{
"from_name": null,
"id": "25c202daff484cc4b33ff60d022828b4",
"to_name": null,
"type": null,
"value": {
"end": 25172,
"labels": [
"RPC"
],
"start": 25147,
"text": "is quashed and set aside."
}
},
{
"from_name": null,
"id": "d745c5cfa6084515842860d093579feb",
"to_name": null,
"type": null,
"value": {
"end": 25264,
"labels": [
"RPC"
],
"start": 25173,
"text": "The appellant Balasaheb Gangadhar Gitte is acquitted of the offence for which he was tried."
}
},
{
"from_name": null,
"id": "22687fa89e7f40c19bbbed28ff9ae001",
"to_name": null,
"type": null,
"value": {
"end": 25330,
"labels": [
"RPC"
],
"start": 25265,
"text": "He be set at liberty forthwith if not required in any other case."
}
},
{
"from_name": null,
"id": "b6d84140320c40afb3ee106c5b6f0133",
"to_name": null,
"type": null,
"value": {
"end": 25372,
"labels": [
"RPC"
],
"start": 25331,
"text": "Fine amount, if paid, be refunded to him."
}
},
{
"from_name": null,
"id": "6cccfb05f4554a26bb5ce39c3f7bb6da",
"to_name": null,
"type": null,
"value": {
"end": 25455,
"labels": [
"NONE"
],
"start": 25374,
"text": "Sd/- Sd/- (A.I.S. CHEEMA, J.) (NARESH H PATIL, J.) rsl"
}
}
]
}
] | 4,127 | {
"text": "IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n BENCH AT AURANGABAD\n\nCriminal Appeal No.447 of 2012\n\nNilesh Baburao Gitte, ]\nAge 27 years, ]\nOccupation : agriculture, ]\nR/o Talani, Taluka Ambajogai, ]\n ] .. Appellant.\nDistrict Beed.\n\nVersus\n\nThe State of Maharashtra, ]\nThrough Police Station Officer, ]\nPolice Station Bardapur, ]\n ] .. Respondent.\nTaluka Ambajogai, District Beed.\n\n --------\nShri. B.R. Waramaa, Advocate, for the appellant.\n\nShri. S.G. Nandedkar, Additional Public Prosecutor, for the\nrespondent.\n\n --------\n\n WITH\n\nCriminal Appeal No.502 of 2012\n\nBalasaheb s/o Gangadhar Gitte, ]\nAge 28 years, ]\nOccupation : agriculture, ]\nR/o Talani, Taluka Ambajogai, ]\n ] .. Appellant.\nDistrict Beed.\n\nVersus\n\nThe State of Maharashtra, ]\nThrough Police Station Officer, ]\nPolice Station Bardapur, ]\n ] .. Respondent.\nTaluka Ambajogai, District Beed.\n --------\n\nShri. N.S. Ghanekar, Advocate, for the appellant.\n\nShri. S.G. Nandedkar, Additional Public Prosecutor, for the\nrespondent.\n\n --------\n\n CORAM: NARESH H PATIL &\n A.I.S. CHEEMA, JJ.\n\n Judgment reserved on : 09th July 2013\n Judgment pronounced on : 23rd July 2013\n\nJUDGMENT: (Per Naresh H Patil, J.) 1) The appellants have challenged the judgment and order of conviction for an offence punishable under section 302 of Indian Penal Code dated 22nd June 2012 passed by learned Additional Sessions Judge-2, Ambajogai, in Sessions Case No.42 of 2011. The appellants were sentenced to suffer imprisonment for life and to pay a fine of Rs.2000/-each, in default, to suffer simple imprisonment for three months.\n 2) The prosecution case, in brief, is as under :-- On 22-7-2010 at 11.00 a.m. the Deputy Superintendent of Police Smt. Swati Bhore received an anonymous phone call informing that funeral of deceased Sunanda Baburao Gitte was to be carried out. The officer intimated Police Inspector Shri. Kale of Parali Rural Police Station to visit the spot at Talani village. The police rushed to the spot. They found that preparations for cremation of deceased Sunanda had begun. They enquired and saw the dead body. After inspection they found ligature marks and injury on back side of skull on the dead body of Sunanda.\n The police carried inquest and post mortem on the dead body on the spot. PW-9 Sunil Shrinivas Birla, Police Inspector, was on duty as Station Diary Officer of Bardapur Police Station. He received message from Police Inspector Kale of Parali Rural Police Station that one Sunanda died at Talani village in Poose vicinity and her death was doubtful. He was informed by Police Inspector Kale that the spot was within the jurisdiction of Bardapur Police Station, therefore, he was called. He reached the spot and at that time P.S.I. Bankar, A.P.I. Kale and their staff members were present there. He saw that near wooden plank prepared for cremation, dead body of Sunanda was lying besides it. The officer noticed ligature mark on neck, injury to back side of head and rope mark on hands and leg of the deceased. The police officer had already started making inquest panchanama (Exhibit 18).\n Post mortem on the dead body was carried at the same place. After return to Parali Rural Police station PW-9 registered the offence himself on behalf of the State and carried the investigation. The complaint is at Exhibit 58.\n The officer thereafter prepared the spot panchanama (Exhibit-17) and during investigation recorded statements of witnesses. In the memorandum of accused Nilesh and Balasaheb the prosecution case suggests that Nilesh had taken out an iron rod and his clothes which were used at the time of commission of offence. These article were seized under panchanamas at Exhibits 20, 21 & 22.\n Memorandum of accused Balasaheb is at Exhibit 23. The articles from Nilesh and Balasaheb were seized. A nylon rope was seized from Balasaheb. Muddemal property was sent for chemical analysis by letter Exhibit 59. A letter was sent to the Executive Magistrate for preparing map of spot of offence on 9-8-2010. The police seized copy of 7/12 extract during interrogation of Sudhakar Nagargoje.\n Further investigation was handed over to Police Sub Inspector Rathod. PSI Rathod thereafter investigated the matter and filed charge-sheet against the accused persons in Crime No.39 of 2010. The accused pleaded not guilty and claimed to be tried.\n 3) The prosecution examined 11 witnesses.\n 4) The appellant-Nilesh Baburao Gitte is real son of deceased Sunanda. PW1-Dinkar Manikrao Nagargoje is paternal cousin of deceased Sunanda. He had seen dead body of Sunanda near her house in the field. According to the witness, brothers of Sunanda, Prabhakar and Sudhakar were not present to attend the last rites of Sunanda.\n 5) PW-2-Sattar Pashasab Patwekar, who was examined as panch of recovery of articles, tuned hostile.\n In the cross-examination of the witness by the State he deposed that Nilesh had taken out iron pipe and his clothes from wooden Diwan. The police seized those clothes by drawing memorandum in his presence. In the cross-examination by the defence the witness deposed that he was looking after political work of Sudhakar, brother of the deceased. He had attended last rites of Sunanda.\n 6) PW-3 is Sudhakar Bhagwanrao Nagargoje, one of the most important witnesses in this case. He happens to be real brother of deceased Sunanda. In his deposition the witness stated that the appellant Nilesh contacted him on phone and informed that his sister Sunanda had died.\n He could not attend the last rites. According to the witness, his sister was murdered. Accused Nilesh was the beneficiary of the property which was inherited by Sunanda or which was to be allotted to her share in family partition. The witness came on the next day for immersion of Asthi of Sunanda and thereafter visited Parali Police Station. He stated that at Parali Police Station the police had shown him a copy of 7/12 extract which had blood stains. The said copy was recovered from accused Nilesh.\n In the 7/12 extract the land was shown to have been owned by Sunanda. According to the witness, Sunanda was murdered for her property.\n The defence cross-examined him. He deposed that in family partition his sister Sunanda got 15 guntha land situated at Ahmedpur. He admitted that there was no mutation entry made in the record in respect of family partition. He referred to filing of Regular Civil Suit No.205 of 2003 against his brother Prabhakar in Civil Court at Ahmedpur. The distance between Ahmedpur and Talani is about 40 to 50 kms. He denied the suggestion that appellant Nilesh was not demanding property from him and his mother. He even claimed ignorance that father of Nilesh had gone for \"Chaar Dhaam Yatra\".\n 7) PW-4 is Dadarao Kondiram Bankar, Police Sub Inspector, who was, at the relevant time, working as Police Sub Inspector, Police Station Parali Rural. When he was on duty on 22-7-2010 information was received from Vidyanand Kale. He visited village Talani. Behind the house of Baburao Gitte, father of appellant Nilesh, he noticed that preparations for cremation of Sunanda were being made. He inspected the dead body and found injuries on the person of the deceased. Black colour mark was noticed on her neck and injury on her head. He made inquest panchanama of the dead body and made arrangement for post mortem on the dead body. Articles 1 to 12 are the photographs which the witness had identified. The doctor had given provisional certificate about cause of death of Sunanda. As the offence had taken place in the jurisdiction of Bardapur Police Station, he handed over the investigation accordingly.\n In his cross-examination certain details in respect of investigation were asked which are not of material nature.\n 8) PW-6 is Dr. Solunke Radhakishan Sarjerao, who conducted post mortem on the dead body on 22-7-2010 at village Talani between 3.10 p.m. and 4.35 p.m. According to the witness the deceased was 50 year old female.\n According to the doctor, condition of body of Sunanda was well nourished and cold. Rigor mortise was present in the whole body. Post mortem lividity was fully developed.\n There was no sign of decomposition. Face was swollen and congested. There was ligature mark encircled the neck 22 cm in length and half cm in breadth. It was absent from back side of neck. It was at the level of thyroid cartilage.\n The doctor has noticed following injuries on the person of the deceased:-- (i) No evidence of injury to external genitals.\n(ii) Upper extremity flexed at the elbow joint.\n(iii) Fingers were flexed.\n (iv) Lower extremity were extended. There was ligature mark encircled the neck 22 cm in length and half cm in breadth. It was absent on back side of neck. It was at the level of thyroid cartilage. The ligature mark was horizontal dry, hard, brown in colour and depressed groove. On the dissection of ligature mark the subcutaneous tissue is echymossed. There was hemorrhage to the thyroid cartilage.\n (v) There were abrasion on the chin 5 cm in length and half cm in width. Extending body of mandible towards right side 6 cm length and half cm in width.\n (vi) There was abrasion on left side of neck 8 to 9 cm in length and half cm in width. There is encircle left side of neck. Abrasion marks absent on elbow in front of neck below the thyroid cartilage.\n (vii) Abrasion on right side of neck. 4 to 5 cm in length and half cm in width. Below the level of thyroid cartilage, encircled right side of the neck, It absent in front of the neck.\n (viii) There is imprint abrasion on the right wrist joint 7 to 8 cm in length and half cm in width and it absent on back side of the wrist.\n (ix) Imprint abrasion on right scalp muscles below the knee joint on the outer side 22 to 24 cm in length and half cm in width.\n (x) Imprint abrasion on left calf mussels below the knee joint on outer side i.e. 23 to 24 cm in length and half cm in width and it absent from inner side.\n (xi) Abrasion on right side of upper and outer gluteal region extending 12 cm in length and 3 cm in width.\n Above and over side right side back.\n (xii) Abrasion mark on both thigh reddish brown in colour.\n The doctor noticed following injuries under the scalp:- (i) Contused lacerated wound on right side of the occipital region over the scalp.\n (ii) It parallel to above injury over the scalp at right occipital region 2 x half cm.\n The injuries were anti mortem and caused within 24 hours. The contents of the post mortem (Exhibit 36) were proved. It was stated that, the ligature mark and injuries may be possible by using rope (article 9) shown to the doctor. The witness was shown iron rod/pipe. He opined that injuries to the scalp may be possible by iron pipe (article 4).\n 9) PW-7 is Vidyadhar Murlidhar Kale, API of Parali Rural Police Station. He was on duty on 22-7-2010 at Parali Rural Police Station. He proceeded to the spot and saw the dead body of deceased Sunanda. There was strangulation mark on neck and injury on backside of scull and blood was oozing from the injuries. He carried inquest panchanama. He was present at the time of post mortem of the dead body. In his cross-examination the witness deposed that he did not make any entry in the station diary about accidental death of the deceased.\n Dy.S.P. Smt. Bhore, API Birla reached the spot after the witness reached there within one and half hour. His statement was recorded by the investigating officer PSI Rathod on 15th January 2011. He denied the suggestion that during investigation there was pressure of political leaders like Mr. Gopinath Mundhe, Dhananjay Mundhe, Pankaja Mundhe and Sudhakar Nagargoje.\n 10) PW-8 is Swati Rambhau Bhore, who was Deputy Superintendent of Police at the relevant time. She reached the spot on receiving an anonymous call. She had seen the dead body. She denied the suggestion that she received phone call of Sudhakar Nagargoje. She denied suggestion that at the instance of Sudhakar Nagargoje the appellant Nilesh was falsely implicated.\n 11) PW-9 is Sunil Shrinivas Birla, who was Police Inspector at the relevant time. He was on duty at Bardapur Police Station. He registered the crime on behalf of the State and carried out the investigation. He has seized incriminating articles under panchanama and sent the muddemal to the Chemical Analyser. In his cross- examination the witness deposed that accidental death report was not recorded in this case. He deposed that from the date of registration of crime till completion of investigation he did not have any doubt on anybody. He recorded statement of Sudhakar on 10-9-2010. During investigation the witness recovered iron rod under seizure panchanama from the house of Motiram Gitte. The witness volunteered that accused Nilesh was residing in the house of Motiram Gitte on rental basis. To the question put up by the court the witness answered as under : Question : From which document from case file you came to know that accused Nilesh was tenant in house of Motiram Gitte ?\n Answer: According to documents accused Nilesh was residing in Motiram Gitte, but it was not revealed that he was his tenant.\n The witness deposed that, he made efforts to record statement of husband of deceased Sunanda, Dr. Baburao Gitte, but he was reluctant to give statement. The witness met Dr. Baburao Gitte 3 to 4 days after the incident of offence at his house. He further deposed that the house where the incident of offence took place is owned by accused Nilesh. The witness did not collect any further documentary evidence in respect of ownership of the house. The witness denied that there was pressure of political leaders like Mr. Gopinath Mundhe and Dhananjay Mundhe. The witness denied that at the instance of Sudhakar Nagargoje and Dy. S.P. Bhore he was making false statement.\n 12) PW-10 is Narsing Patloba Gitte who was working as Circle Officer at Ghatnandur Circle. He prepared map of spot of offence in Crime No.39/2010 which is at Exhibit 65.\n 13) PW-11 is Shesharao Megha Rathod, Police Sub Inspector, who filed charge sheet. He denied suggestion that Prabhakar and Sudhakar wanted to grab the property of the deceased and they have falsely involved the son of the deceased.\n 14) The learned counsel for the appellant Shri. B.R.\n Warma submitted that there is no motive for Nilesh to commit the crime. There is no eye witness to the incident.\n PW Sudhakar, brother of deceased Sunanda is deliberately deposing against Nilesh as he has interest in the property which may be inherited by Nilesh as his mother's property. The police machinery was under pressure of political heavyweights. The investigation is not carried out fairly. The investigation officers have hurriedly conducted the investigation which has caused serious prejudice to the appellant Nilesh. The articles seized like iron rod, rope are not incriminating in nature. The appellant Nilesh was not residing with his mother. The panch witnesses are tutored and except PW-3 Sudhakar, who is highly interested in prosecution, there is no independent witness whose evidence is recorded by the prosecution. The chain of circumstance is not complete. Therefore, it be held that the prosecution has failed to establish the case against Nilesh beyond reasonable doubt. The learned counsel in support of his submissions, has placed reliance on the following judgments.\n (1) State of Punjab v. Karnail Singh, AIR 2003 SC 3609.\n (2) Vithal Tukaram More v. State of Maharashtra, AIR 2002 SC 2715.\n (3) Vipul Chandrakant Jain v. The State of Maharashtra, Criminal Appeal No.628 of 2002 decided on 19th January 2005.\n (4) Mulak Raj v. State of Haryana, AIR 1996 SC 2868.\n (5) Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan, 2013(4) Supreme 131.\n (6) Datta Ganpat Chandode v. State of Maharashtra, 2012 All MR (Cri) 1698.\n 15) The learned counsel appearing for appellant Balasaheb in support of his submissions, has placed reliance on the reported judgment in Ashraf Hussain Shah v. State of Maharashtra, 1996 Cri.L.J. 3147.\n We have perused the judgments cited supra by the learned counsel.\n 16) The learned Additional Public Prosecutor for the State submitted that there is strong motive emerging from the evidence and the same is in respect of immovable property allotted to the share of deceased Sunanda which was of considerable value. A civil suit was contested between the brothers of the deceased Sunanda. The defence version is not reliable and believable that the appellant Nilesh was not residing with his mother. In stead, it was suggested that as father of the appellant Nilesh, being Government Medical Officer, was engaged in transferable job, so he had made arrangement wherein his wife would stay at the village along with his son. Recovery of articles made by the police is incriminating in nature.\n The medical evidence supports the prosecution case. It was submitted that conduct of the appellant Nilesh has to be minutely and seriously viewed. Here is a son who had committed murder of his mother by severely beating and strangulating. If the police had not arrived at the spot at the relevant time the appellant-Nilesh would have cremated his mother and the evidence would have disappeared.\n 17) We have perused the entire evidence. We find that the conduct of the appellant Nilesh is blameworthy.\n No explanation is coming forward as to why in spite of receiving serious injuries by the deceased the appellant Nilesh, son of the deceased, made arrangements for cremating his mother. Soon before the dead body was to be taken for cremation the police reached the spot and could witness the injuries on the person of deceased Sunanda. The appellant Nilesh did not brother to lodge any formal report to the police. No intimation was given to anybody in respect of injuries suffered by his mother. His keeping silence goes against his plea of innocence. In normal circumstance, son would certainly raise hue and cry after seeing his mother in injured condition. She had died unnatural death. The medical evidence has supported the prosecution version. In the statement under section 313 of the Criminal Procedure Code the appellant Nilesh had stated thus : Q.No.46. Why witnesses are deposing against you ?\n Ans.: I say that land in name of my mother situated at Ahmedpur which having plotings. My maternal uncle (Mama) Sudhakar Nagargoje wants to grab that land standing in name of mother.\n Witnesses are telling false story at instance of my maternal uncle Sudhakar Nagargoje.\"\n 18) Even if for the sake of argument it is believed that Sudhakar had involved appellant Nilesh in the commission of murder of his mother but the question remains as to why the appellant maintained silence throughout and instead showed haste in preparation for cremating his mother.\n 19) From the evidence we can gather that though the appellant had taken a plea that he was not residing with his mother but, instead, residing in the house of one Motiram Gitte as a tenant, the plea is not convincing. The house where mother of the deceased was residing was owned by appellant Nilesh. There is no reason coming forward as to why appellant Nilesh was said to be residing separately from his mother. When the evidence indicates that father of the appellant Nilesh had made this arrangement so that the mother and son could stay together as he was discharging his duties as a Government Medical Officer, there is no convincing reason to accept the plea of the defence in respect of separate residence of Nilesh.\n 20) The other strong circumstance going against the appellant Nilesh is the post mortem report which indicates that the deceased was mercilessly beaten and thereafter strangulated. The cause of death is asphyxia due to strangulation. It was an unnatural death. The appellant Nilesh has not explained anything regarding the circumstances resulting into death of his mother.\n 21) The villagers had gathered and the dead body was to be taken for cremation. Till this moment the appellant has not whispered to anybody regarding the circumstances in which the deceased suffered injuries or whether the appellant had any suspicion or doubt about conduct of any other persons who might have caused these injuries to his mother. The testimony of PW-3 Sudhakar clearly blames the appellant-Nilesh and indicates that he was having interest in the property, which was a valuable property belonging to his mother.\n 22) Another intriguing feature in the case is silence of the husband of deceased Sunanda. The police officers tried for three to four times to elicit from husband of the deceased Sunanda but he was reluctant to make any statement. This further causes shadow on the plea of innocence raised by the appellant-Nilesh.\n 23) On behalf of the defence it was submitted that PW-3 - Sudhakar did not attend the funeral of deceased Sunanda. By that conduct of PW-3 Sudhakar we cannot discard the prosecution version for upholding innocence of the appellant Nilesh.\n 24) We do not find any convincing reasoning to hold that due to political pressure the police falsely involved the appellant. Appellant Nilesh had ample opportunity and time to say something till fag end of the trial regarding the incident in-question but except blaming PW-3 Sudhakar the appellant Nilesh preferred not to say anything further. From the prosecution evidence we do not notice that any other person residing in the village had grudge against the deceased to mercilessly beat her and strangulate her. No other person was shown to be the beneficiary if Sunanda is done to death. If it is presumed that PW-3 Sudhakar was interested in involving the appellant Nilesh in the crime so as to grab the property of Sunanda then just because Nilesh is involved in the crime his legal rights to the property do not get extinguished.\n Therefore, theory propounded by the defence on that count is also not convincing and sustainable.\n 25) Considering the facts of the case certain inferences are required to be drawn to the extent of conduct of the appellant Nilesh. The haste shown to cremate his mother speaks for itself and indicates guilty mind of the appellant Nilesh.\n 26) As regards the appellant Balasaheb, we find that he has been involved with allegation that as he had helped appellant Nilesh in commission of the crime.\n Except recovery at the instance of appellant Balasaheb, the prosecution has failed to bring home guilty of Balasaheb. Recovery is not incriminating in nature. The prosecution evidence is lacking to establish active involvement of appellant-Balasaheb Gangadhar Gitte.\n There is no motive for Balasaheb to assist appellant-Nilesh in commission of the crime.\n 27) We have perused the reasoning adopted by the trial Court in convicting both the appellants. We are not convinced with the reasoning of the trial Court in convicting and sentencing the appellant Balasaheb Gitte.\n At the same time, the trial Court has scanned the evidence properly and reached appropriate conclusions while convicting and sentencing appellant-Nilesh Baburao Gitte.\n 28) We have perused the case law submitted by the learned counsel Shri. Warma in respect of the principles that in a case based on circumstantial evidence, the motive plays vital role. The chain of circumstances must be so complete so as to clearly point out that the appellant alone must the guilty person. These circumstances shall be conclusively established and in case the chain of circumstances is not complete then benefit goes to the accused. Considering the facts, circumstances and the evidence brought on record we are of the opinion that, the conviction and sentence awarded by the trial Court against the appellant Nilesh Baburao Gitte is required to be confirmed whereas, we are not inclined to confirm the finding of guilt recorded by the trial Court against the appellant Balasaheb Gangadhar Gitte.\n ORDER 29) Criminal Appeal No.447 of 2012 is dismissed.\n 30) Criminal Appeal No.502 of 2012 is allowed. The judgment and order dated 22-6-2012 passed by the learned Additional Sessions Judge-2, Ambajogai in Sessions Case No.42 of 2011 convicting the appellant Balasaheb Gangadhar Gitte for an offence punishable under section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.2,000/-,in default, to suffer simple imprisonment for three months is quashed and set aside. The appellant Balasaheb Gangadhar Gitte is acquitted of the offence for which he was tried. He be set at liberty forthwith if not required in any other case. Fine amount, if paid, be refunded to him.\n Sd/- Sd/- (A.I.S. CHEEMA, J.) (NARESH H PATIL, J.) rsl "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "4c3373d9f7ff4608ac491b0e837bb1a2",
"to_name": null,
"type": null,
"value": {
"end": 96,
"labels": [
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],
"start": 0,
"text": " IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n ON THE 01ST DAY OF MARCH , 2019"
}
},
{
"from_name": null,
"id": "16c8a4a6b47a410291dd55b001e1be17",
"to_name": null,
"type": null,
"value": {
"end": 254,
"labels": [
"PREAMBLE"
],
"start": 96,
"text": "\n BEFORE\n\n THE HON'BLE MR. JUSTICE RAVI MALIMATH\n\n AND\n\n THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD"
}
},
{
"from_name": null,
"id": "ab0c87571ca344499da0484296ec5709",
"to_name": null,
"type": null,
"value": {
"end": 304,
"labels": [
"PREAMBLE"
],
"start": 254,
"text": "\n\nCENTRAL EXCISE APPEAL NOS. 40 AND 45 53 OF 2018"
}
},
{
"from_name": null,
"id": "e59d19a87c1c48639868bec9dbdce416",
"to_name": null,
"type": null,
"value": {
"end": 761,
"labels": [
"PREAMBLE"
],
"start": 304,
"text": "\n\nBETWEEN:\n\nTHE COMMISSIONER OF CENTRAL TAX ... APPELANT\nBENGALURU EAST COMMISSIONERATE,\nBMTC BUILDING, OLD AIRPORT ROAD,\nDOMLUR, BENGALURU-560 071.\n\n(BY SRI K.V. ARAVIND, ADVOCATE)\n\nAND:\n\nNETAPP INDIA PVT. LTD.,\nNETAPP SURVEY NO. 26 P 31P 32P,\nMAHADEVAPURA MAIN ROAD\nMAHADEVAPURA\nHOODI VILLAGE,\nBENGALURU - 560 048\nKARNATAKA.\n\n ... RESPONDENT\n\n(BY SRI MIHIR MEHTA, ADVOCATE ALONG WITH\n SMT.G. L. SHILPI JAIN, ADVOCATE)"
}
},
{
"from_name": null,
"id": "4c75817f98de49719a2b249041344760",
"to_name": null,
"type": null,
"value": {
"end": 1392,
"labels": [
"PREAMBLE"
],
"start": 761,
"text": "\n\n THESE CENTRAL EXCISE APPEALS ARE FILED\nUNDER SECTION 35G OF THE CENTRAL EXCISE ACT,\nARISING OUT OF ORDER DATED 20.02.2018 PASSED IN\n\nFINAL ORDER NO. 20304-20313 OF 2018, PRAYING TO (I)\nANSWER THE SUBSTANTIAL QUESTIONS OF LAW\nFRAMED ABOVE IN FAVOUR OF THE APPELLANT IN THE\nINTEREST OF JUSTICE AND EQUITY; (II) SET ASIDE THE\nIMPUGNED FINAL ORDER NO. 20304-20313 OF 2018\nDATED 20.02.2018 PASSED BY THE CESTAT, SOUTH\nZONAL BENCH, BENGALURU IN THE INTEREST OF\nJUSTICE AND EQUITY AND (III) PASS SUCH OTHER\nORDER, DIRECTION AS THIS HON'BLE COURT DEEMS\nFIT IN THE CIRCUMSTANCES OF THE CASE IN THE\nINTEREST OF JUSTICE AND EQUITY."
}
},
{
"from_name": null,
"id": "4a379d7b017b4dbe88f45ed7e44f680c",
"to_name": null,
"type": null,
"value": {
"end": 1570,
"labels": [
"PREAMBLE"
],
"start": 1403,
"text": "THESE APPEALS HAVING BEEN HEARD AND\nRESERVED ON 25.02.2019 AND COMING ON FOR\nPRONOUNCEMENT OF JUDGMENT THIS DAY, B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING: JUDGMENT"
}
},
{
"from_name": null,
"id": "3d49a032462d4e01a30967b2fabd4475",
"to_name": null,
"type": null,
"value": {
"end": 1857,
"labels": [
"FAC"
],
"start": 1571,
"text": "The appellant revenue has, in these appeals under Section 35G of the Central Excise Act, 1944, impugned the Final Order dated 20.02.2018 in No.20304-20313 of 2018 by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bengaluru (for short, `Appellate Tribunal')."
}
},
{
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"id": "c8a50760b27d45df91dc6d01311a1def",
"to_name": null,
"type": null,
"value": {
"end": 2066,
"labels": [
"RLC"
],
"start": 1858,
"text": "The Appellate Tribunal by this impugned order has allowed the respondent's appeal against the common order dated 21.9.2017 by the Commissioner of Central Taxes (Appeals-1) in Appeal Nos. 1091 to 1100 of 2017."
}
},
{
"from_name": null,
"id": "cab71a3aa31f43468173e937cacbe8e0",
"to_name": null,
"type": null,
"value": {
"end": 2163,
"labels": [
"ISSUE"
],
"start": 2067,
"text": "The appellant- revenue has proposed the following as substantial questions in these appeals: \"1."
}
},
{
"from_name": null,
"id": "9b2303fe99cf44beb68e156a4ffb50c9",
"to_name": null,
"type": null,
"value": {
"end": 2437,
"labels": [
"ISSUE"
],
"start": 2164,
"text": "Whether on the facts and in the circumstances of the case CESTAT was correct in merely setting aside the impugned order (Commissioner Appeals) and allowing the appeal without assigning any reasons and recording any finding on the controversy and recorded perverse finding?"
}
},
{
"from_name": null,
"id": "2cae13a0f02e450abc8a54fc693faf79",
"to_name": null,
"type": null,
"value": {
"end": 3045,
"labels": [
"ISSUE"
],
"start": 2437,
"text": "\n 2. Whether on the facts and in the circumstances of the case, CESTAT was correct in allowing the appeal by giving reference to the judgments dealing with the interest under section 11BB of the Central Excise Act, without recording any finding on the eligibility of interest under section 11BB of the Central excise Act, the manner of computation of the interest, period of commencement of interest, the quantum of refund on which interest to be quantified, in the absence of such an issue was considered either by the adjudicating authority or by the Commissioner-Appeals and recorded perverse finding?\n 3."
}
},
{
"from_name": null,
"id": "3a053585b1134759ab5eea15252d01e5",
"to_name": null,
"type": null,
"value": {
"end": 3307,
"labels": [
"ISSUE"
],
"start": 3046,
"text": "Whether on the facts and in the circumstances of the case, CESTAT failed to record a finding regarding the quantum of refund the assessee would be eligible in view of the specific dispute on the quantum and the consequential interest on such quantum of refund?\""
}
},
{
"from_name": null,
"id": "12159cf59b6749e9aa7b0590ded8290b",
"to_name": null,
"type": null,
"value": {
"end": 3547,
"labels": [
"FAC"
],
"start": 3309,
"text": "2. The present appeals arise in the following circumstances: The respondent offered Information Technology Software Services, as defined under the Finances Act, 1994, to its foreign clients under the Service Agreement concluded with them."
}
},
{
"from_name": null,
"id": "a608054577e7430f8435c2b8a964e8da",
"to_name": null,
"type": null,
"value": {
"end": 3686,
"labels": [
"FAC"
],
"start": 3548,
"text": "The respondent furnished FIRCs, along with Export Invoices, to establish that it realized export proceeds in convertible foreign currency."
}
},
{
"from_name": null,
"id": "872b3c30cc3b4c108e4be0f54a28771d",
"to_name": null,
"type": null,
"value": {
"end": 3733,
"labels": [
"FAC"
],
"start": 3687,
"text": "The respondent filed its returns in Form ST-3."
}
},
{
"from_name": null,
"id": "60f09718d487438dbefa519a626bb961",
"to_name": null,
"type": null,
"value": {
"end": 3964,
"labels": [
"FAC"
],
"start": 3734,
"text": "Thereafter, the respondent filed Ten claims with the Assistant Commissioner, Division C, Bengaluru for refund of Unutilized CENVAT Credit for the period between July 2012 to June 2015 under Rule 5 of the CENVAT Credit Rules, 2004."
}
},
{
"from_name": null,
"id": "7c3e8978fe524bb5b7b1a50547ba0a63",
"to_name": null,
"type": null,
"value": {
"end": 4320,
"labels": [
"FAC"
],
"start": 3965,
"text": "The Assistant Commissioner, Division C, Bengaluru examined the respondent's claim for refund, and vide its separate orders dated 21.6.2017 allowed such claims for refund as provided for under Rule 5 of the CENVAT Credit Rules 2004 read with Notification No.27/2012-CE(NT) dated 18.6.2012 (for short, `CENVAT Credit Rules & Notification dated 18.6.2012').\n"
}
},
{
"from_name": null,
"id": "f2edfca1a5744e60806788232cfe0884",
"to_name": null,
"type": null,
"value": {
"end": 4426,
"labels": [
"FAC"
],
"start": 4320,
"text": "However, the Assistant Commissioner, Division C, Bangalore did not grant interest for the delay in refund."
}
},
{
"from_name": null,
"id": "42ff8a2e46cf4e8b843693d4be25c09d",
"to_name": null,
"type": null,
"value": {
"end": 4933,
"labels": [
"FAC"
],
"start": 4426,
"text": "\n 3. The respondent, being aggrieved by these orders, insofar as refusal of interest for the delay in the refund, filed Ten appeals before the Commissioner of Central Taxes (Appeals-1), who dismissed these Ten Appeals in No. 1091-1100 of 2017 holding that the respondent would not be entitled for payment of interest because the provision for payment of interest on delayed refund under Section 11BB of the Central Excise Act, 1944 would apply only where there has been excess payment or collection of duty."
}
},
{
"from_name": null,
"id": "d77b5492c155494ab1798fe831718393",
"to_name": null,
"type": null,
"value": {
"end": 5341,
"labels": [
"FAC"
],
"start": 4934,
"text": "The Commissioner of Central Taxes (Appeals-1) emphasized that the principle for payment of interest for the delay in refund contained in Section 11BB of the Central Excise Act, 1944 cannot be extrapolated into Schema for refund of Unutilized CENVAT Credit, as such Schema is nothing more than a facilitative mechanism provided to the exporter to convert the unutilized credit lying in its account into cash."
}
},
{
"from_name": null,
"id": "e03a77711afe4e24b75b28609e97f508",
"to_name": null,
"type": null,
"value": {
"end": 5837,
"labels": [
"FAC"
],
"start": 5342,
"text": "The fundamental difference between the Schema for the unutilized CENVAT Credit and refund of the excess duty paid or collected, the Commissioner of Central Taxes emphasized, is that in the former the unutilized credit lies in the assessee's account unlike in the case of excess payment of duty that would be with the State Exchequer; as the State Exchequer would have the benefit of excess payment of duty, the provision for payment of interest is provided under Section 11BB of the Customs Act."
}
},
{
"from_name": null,
"id": "4dbffde357f543508a7b63b0e152b83e",
"to_name": null,
"type": null,
"value": {
"end": 6176,
"labels": [
"RLC"
],
"start": 5839,
"text": "4. The respondent being aggrieved by this order, preferred an appeal with the Appellate Tribunal, and the Appellate Tribunal, by its impugned final order dated 20.2.2018, set aside the common order in Appeals in Nos. 1091-1100 of 2017 holding that the appellate order by the Commissioner of Central Taxes (Appeals-1) cannot be sustained."
}
},
{
"from_name": null,
"id": "c0d7461f7ce44dac9be25afda4aeaeb2",
"to_name": null,
"type": null,
"value": {
"end": 6371,
"labels": [
"RLC"
],
"start": 6177,
"text": "The Appellate Tribunal relied upon the decision of the High Court of Gujarat at Ahmedabad in Commissioner of Central Excise vs. Reliance Industries Ltd., reported in 2010(259) ELT 356 (GUJARAT)."
}
},
{
"from_name": null,
"id": "103ea401d7c74c30bd890ddbb2442810",
"to_name": null,
"type": null,
"value": {
"end": 6534,
"labels": [
"RLC"
],
"start": 6372,
"text": "The Appellate Tribunal also observed that the decision of the High of Gujarat was challenged before the Hon'ble Supreme Court but such challenge was unsuccessful."
}
},
{
"from_name": null,
"id": "55eff623889b4cc0b2ad0cf23d8a2c94",
"to_name": null,
"type": null,
"value": {
"end": 6779,
"labels": [
"ARG_PETITIONER"
],
"start": 6534,
"text": "\n 5. The learned counsel for the appellant - revenue argued that payment of interest on delayed refund is payable under Section 11BB of the Central Excise Act, 1944 (for short, the `Act'), if the claim for refund is under Section 11B of the Act."
}
},
{
"from_name": null,
"id": "b841ca5eab5f41b797ed6f8f439e92af",
"to_name": null,
"type": null,
"value": {
"end": 6936,
"labels": [
"ARG_PETITIONER"
],
"start": 6780,
"text": "However, the present claim by the respondent is for the refund of the unutilized CENVAT credit under the CENVAT Credit Rules & Notification dated 18.6.2012."
}
},
{
"from_name": null,
"id": "44c3125de31047c79d1881637d7e2eef",
"to_name": null,
"type": null,
"value": {
"end": 7085,
"labels": [
"ARG_PETITIONER"
],
"start": 6937,
"text": "As such, the Department/Revenue cannot be called upon to pay interest for delay in refund of the unutilized CENVAT credit under Section 11BB of Act."
}
},
{
"from_name": null,
"id": "fee5d6fe23044e7b815fc5cb8dfd010f",
"to_name": null,
"type": null,
"value": {
"end": 7219,
"labels": [
"ARG_PETITIONER"
],
"start": 7086,
"text": "The learned counsel elaborated that the claim for refund under Section 11B of the Act is in respect of excess duty paid or collected."
}
},
{
"from_name": null,
"id": "994427d5627d4b83b0f302887b9ac54f",
"to_name": null,
"type": null,
"value": {
"end": 7553,
"labels": [
"ARG_PETITIONER"
],
"start": 7220,
"text": "If the excess duty is paid or collected, then upon receipt of an application as provided under Section 11B of the Act, the interest on delay in refund is payable under Section 11BB of the Act provided that excess amount is not refunded within three months from the date of receipt of such application under Section 11B(1) of the Act."
}
},
{
"from_name": null,
"id": "f06dd81ceda1484b8582cdb4c46feb51",
"to_name": null,
"type": null,
"value": {
"end": 7864,
"labels": [
"ARG_PETITIONER"
],
"start": 7554,
"text": "Under Section 11 BB of the Act, the interest on the excess duty paid or collected is payable from the date of receipt of application till the date of refund of such duty at such rate which is not below 5% and not exceeding 30% p.a. as is fixed by the Central Government by Notification in the Official Gazette."
}
},
{
"from_name": null,
"id": "dcbae9abb2a2462987b576f686fb185c",
"to_name": null,
"type": null,
"value": {
"end": 8119,
"labels": [
"ARG_PETITIONER"
],
"start": 7865,
"text": "However, under Rule 5 of the CENVAT Credit Rules & Notification dated 18.6.2012, a manufacturer or a provider of output service is allowed refund of such unutilized CENVAT credit subject to such safeguards, conditions and limitations as may be specified."
}
},
{
"from_name": null,
"id": "c2097796912a44a7babdaa4a219ec076",
"to_name": null,
"type": null,
"value": {
"end": 8315,
"labels": [
"ARG_PETITIONER"
],
"start": 8120,
"text": "The unutilized CENVAT Credit lies in the account of the assessee and it is therefore distinct and separate from the excess duty paid or collected which would stand to the credit of the exchequer."
}
},
{
"from_name": null,
"id": "19234380bc41489ebf64ed02363526df",
"to_name": null,
"type": null,
"value": {
"end": 8476,
"labels": [
"ARG_PETITIONER"
],
"start": 8316,
"text": "As such, no recourse should be had to the provisions of 11BB of the Act to award interest in the event there is any delay in refund of unutilized CENVAT credit."
}
},
{
"from_name": null,
"id": "0005c040ebe64560abc048365c7ba7c8",
"to_name": null,
"type": null,
"value": {
"end": 8845,
"labels": [
"ARG_PETITIONER"
],
"start": 8478,
"text": "6. The learned counsel for the appellant - revenue argued that the Appellate Tribunal has not recorded any finding on the respondent's eligibility to interest under section 11BB of the Act, if interest is payable, the manner of computation of interest, the period of commencement for computing interest and the quantum of refund on which interest is to be quantified."
}
},
{
"from_name": null,
"id": "089f67c2008c4ccb9b5732b3903b97e7",
"to_name": null,
"type": null,
"value": {
"end": 8909,
"labels": [
"ARG_PETITIONER"
],
"start": 8846,
"text": "As such, the impugned order is perfunctory and contrary to law."
}
},
{
"from_name": null,
"id": "4f8286152c284f9b8d8a6f28a0544c47",
"to_name": null,
"type": null,
"value": {
"end": 9303,
"labels": [
"ARG_RESPONDENT"
],
"start": 8909,
"text": "\n 7. The learned Counsel for the respondent, on the other hand, submitted that this question whether interest on delayed refund of unutilized CENVAT credit as contemplated under Rule 5 of the CENVAT Credit Rules & Notification dated 18.6.2012 would be permissible under Section 11BB of the Central Excise Act has been considered by the High Court of Madras as well as the High Court of Gujarat."
}
},
{
"from_name": null,
"id": "ec304c98af57456995c275b3106bccf1",
"to_name": null,
"type": null,
"value": {
"end": 9483,
"labels": [
"ARG_RESPONDENT"
],
"start": 9304,
"text": "In fact, the appellant revenue impugned the decision of the High Court of Gujarat before the Hon'ble Supreme Court, but the appellant revenue did not succeed in the said appeal."
}
},
{
"from_name": null,
"id": "f073b3db80e348aeb866523aa30a578f",
"to_name": null,
"type": null,
"value": {
"end": 9553,
"labels": [
"ARG_RESPONDENT"
],
"start": 9484,
"text": "Therefore, the appellant revenue cannot re- agitate the issue again."
}
},
{
"from_name": null,
"id": "1f2b44bd7ed7415b8d227612efdb6fb2",
"to_name": null,
"type": null,
"value": {
"end": 10143,
"labels": [
"ARG_RESPONDENT"
],
"start": 9553,
"text": "\n 8. The learned counsel further contended that the manner of computation of interest is also settled in view of the decision of the Hon'ble Supreme Court in Ranbaxy Laboratories vs. Union of India reported in 2011(273)ELT 3(SC) wherein, the Hon'ble Supreme Court has declared that the liability of the Revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(i) of the Act and not on the expiry of the three months period from the date on which the order of refund is made."
}
},
{
"from_name": null,
"id": "3ea952ff30734ec3b7323e1652ad2d15",
"to_name": null,
"type": null,
"value": {
"end": 10274,
"labels": [
"ARG_RESPONDENT"
],
"start": 10144,
"text": "There cannot be any quarrel over the quantum of refund in view of the orders of the Assistant Commissioner, Division C, Bengaluru,"
}
},
{
"from_name": null,
"id": "ffe65eda34994091bfc8a9a15625b908",
"to_name": null,
"type": null,
"value": {
"end": 10357,
"labels": [
"ARG_RESPONDENT"
],
"start": 10275,
"text": "Therefore, the impugned order does not suffer from any irregularity or perversity."
}
},
{
"from_name": null,
"id": "692ad66f6ecf4fcb97c4a36f4a7b3018",
"to_name": null,
"type": null,
"value": {
"end": 10488,
"labels": [
"ANALYSIS"
],
"start": 10357,
"text": "\n 9. The rival submissions are examined in the light of the decisions by the High Court of Gujarat as well as High Court of Madras."
}
},
{
"from_name": null,
"id": "5f998e51f77e442f9db856c419229400",
"to_name": null,
"type": null,
"value": {
"end": 11255,
"labels": [
"PRE_RELIED"
],
"start": 10489,
"text": "The High Court of Gujarat in the case of Commissioner, Central Excise vs Reliance Industries Limited supra, while considering a similar canvas against the payment of interest on delayed refunds under Section 11BB of the Central Excise Act, in terms of the obligation to refund under Rule 5 of the CENVET Credit Rules & Notification dated 18.6.2012, did not accept the canvas on behalf of the revenue that the scheme for refund of unutilized CENVAT Credit is a special beneficial scheme with self contained procedure providing for the manner and method of its implementation, and hence any refund claimed under the Rules would be governed only by the provisions of the Scheme and the general provisions of Section 11BB of the Central Excise Act cannot be resorted to."
}
},
{
"from_name": null,
"id": "4892cebdd6a64366971a9282ab8ce38a",
"to_name": null,
"type": null,
"value": {
"end": 11702,
"labels": [
"PRE_RELIED"
],
"start": 11256,
"text": "The High Court of Gujarat concluded that the CENVAT credit is nothing but duty paid by the supplier of inputs which are dutiable goods manufactured by the supplier or dutiable services rendered by the service provider; when such goods/services are utilized for further manufacture or providing service, which are dutiable, the manufactured goods or service provided carry the duty paid by the Supplier of inputs as a component of its price/value."
}
},
{
"from_name": null,
"id": "e19195b529b0422e865a908059cba573",
"to_name": null,
"type": null,
"value": {
"end": 11846,
"labels": [
"PRE_RELIED"
],
"start": 11703,
"text": "Hence, the duty payable on the ultimately manufactured goods/services rendered stands reduced to the extent of duty already paid on the inputs."
}
},
{
"from_name": null,
"id": "922c290fc73141e184e75b588aacafad",
"to_name": null,
"type": null,
"value": {
"end": 11945,
"labels": [
"PRE_RELIED"
],
"start": 11847,
"text": "Thus, the duty paid on inputs by the supplier has already been actually received by the exchequer."
}
},
{
"from_name": null,
"id": "4514af58e41b4322b1805579dde281f1",
"to_name": null,
"type": null,
"value": {
"end": 12146,
"labels": [
"ANALYSIS"
],
"start": 11946,
"text": "Therefore, there is a basic fallacy in the argument by the revenue that refund of unutilized CENVAT credit is different from excess duty paid or collected as contemplated under Section 11B of the Act."
}
},
{
"from_name": null,
"id": "ed1047495bd141b787dc82f1c122171a",
"to_name": null,
"type": null,
"value": {
"end": 12395,
"labels": [
"ANALYSIS"
],
"start": 12147,
"text": "As such, the High Court of Gujarath held that when there is delay in sanctioning the refund under Rule 5 of the CENVAT Credit Rules & Notification dated 18.6.2012, the provisions of Section 11BB of the Central Excise Act would be clearly attracted."
}
},
{
"from_name": null,
"id": "79a753a82c5f4ea8a3c2ce0e241e15e9",
"to_name": null,
"type": null,
"value": {
"end": 12905,
"labels": [
"ANALYSIS"
],
"start": 12395,
"text": "\n 10. The High Court of Madras, which was considering allowing interest on the delayed refund of unutilized credit under the MODVAT Credit Scheme, has also concluded that the MODVAT Credit taken was nothing but payment of duty which would be available to the assessee on the assessee paying duty on inputs at the time of clearance of final bills and therefore, there is statutory obligation on the part of the appellant revenue under Section 11BB of the Act to pay interest for the delayed refund of the duty."
}
},
{
"from_name": null,
"id": "803f5b29dc884254bfa84708ebb8cfb2",
"to_name": null,
"type": null,
"value": {
"end": 13256,
"labels": [
"ANALYSIS"
],
"start": 12905,
"text": "\n 11. The learned counsel for the appellant revenue is unable to persuade this court to hold that the obligation to refund unutilized CEVANT Credit under Rule 5 of the CENVAT Credit Rules & Notification dated 18.6.2012 is distinct and separate from the obligation under Section 11B of the Act in the light of the reasoning in the aforesaid decisions."
}
},
{
"from_name": null,
"id": "04a8c49bbaff4061ae00f36d918650af",
"to_name": null,
"type": null,
"value": {
"end": 13593,
"labels": [
"RATIO"
],
"start": 13257,
"text": "This Court concurs with the reasons assigned in the aforesaid decisions to hold that the revenue would be obliged to pay under interest for the delayed refund as contemplated under Section 11BB of the Act even for the delayed refund of the Unutilized CENVAT credit under Rule 5 of the CENVAT Credit Rules & Notification dated 18.6.2012."
}
},
{
"from_name": null,
"id": "0b122352a3624a459c0c3d6c28537862",
"to_name": null,
"type": null,
"value": {
"end": 14059,
"labels": [
"RATIO"
],
"start": 13594,
"text": " There is also considerable force in the submissions on behalf of the respondent that in view of the decision of the Hon'ble Supreme Court Ranbaxy Laboratories vs. Union of India reported in 2011(273)ELT 3(SC) that there cannot be any dispute about the liability of the Revenue to pay interest under Section 11BB of the Act commencing from the date of expiry of three months from the date of receipt of application for refund under Section 11B(i) of the Act."
}
},
{
"from_name": null,
"id": "40b9977a78e84f1da0fad3e939425b07",
"to_name": null,
"type": null,
"value": {
"end": 14135,
"labels": [
"RATIO"
],
"start": 14060,
"text": "The Appellate Tribunal has referred to this decision in its impugned order."
}
},
{
"from_name": null,
"id": "a850bcd509e542eba2b0111dac75dc91",
"to_name": null,
"type": null,
"value": {
"end": 14371,
"labels": [
"RATIO"
],
"start": 14135,
"text": "\n Similarly, in view of the orders of the Assistant Commissioner, Division C, Bangalore, which has remained unchallenged as regards the quantum of refund of unutilized CENVAT credit, there cannot be any lis even as regards the quantum."
}
},
{
"from_name": null,
"id": "436108c301e14169977c0fd46318c186",
"to_name": null,
"type": null,
"value": {
"end": 14556,
"labels": [
"RPC"
],
"start": 14371,
"text": "\n 12. In the light of the aforesaid discussion, this court is of the considered opinion that no substantial questions arise for consideration, and the appeals are dismissed accordingly."
}
},
{
"from_name": null,
"id": "0cf6d5363ace43dab5493788c23f818b",
"to_name": null,
"type": null,
"value": {
"end": 14566,
"labels": [
"RPC"
],
"start": 14557,
"text": "No costs."
}
},
{
"from_name": null,
"id": "e952098ec3e948cc8cac6eb6513d7e8f",
"to_name": null,
"type": null,
"value": {
"end": 14686,
"labels": [
"RPC"
],
"start": 14568,
"text": "13. In view of dismissal of the appeals, IA No.2 of 2018 does not survive for consideration and the same is dismissed."
}
},
{
"from_name": null,
"id": "a621ddd2e5b4412a95450523a8789d70",
"to_name": null,
"type": null,
"value": {
"end": 14717,
"labels": [
"NONE"
],
"start": 14686,
"text": "\n SD/- SD/- JUDGE JUDGE nv"
}
}
]
}
] | 4,115 | {
"text": " IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n ON THE 01ST DAY OF MARCH , 2019\n BEFORE\n\n THE HON'BLE MR. JUSTICE RAVI MALIMATH\n\n AND\n\n THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD\n\nCENTRAL EXCISE APPEAL NOS. 40 AND 45 53 OF 2018\n\nBETWEEN:\n\nTHE COMMISSIONER OF CENTRAL TAX ... APPELANT\nBENGALURU EAST COMMISSIONERATE,\nBMTC BUILDING, OLD AIRPORT ROAD,\nDOMLUR, BENGALURU-560 071.\n\n(BY SRI K.V. ARAVIND, ADVOCATE)\n\nAND:\n\nNETAPP INDIA PVT. LTD.,\nNETAPP SURVEY NO. 26 P 31P 32P,\nMAHADEVAPURA MAIN ROAD\nMAHADEVAPURA\nHOODI VILLAGE,\nBENGALURU - 560 048\nKARNATAKA.\n\n ... RESPONDENT\n\n(BY SRI MIHIR MEHTA, ADVOCATE ALONG WITH\n SMT.G. L. SHILPI JAIN, ADVOCATE)\n\n THESE CENTRAL EXCISE APPEALS ARE FILED\nUNDER SECTION 35G OF THE CENTRAL EXCISE ACT,\nARISING OUT OF ORDER DATED 20.02.2018 PASSED IN\n\nFINAL ORDER NO. 20304-20313 OF 2018, PRAYING TO (I)\nANSWER THE SUBSTANTIAL QUESTIONS OF LAW\nFRAMED ABOVE IN FAVOUR OF THE APPELLANT IN THE\nINTEREST OF JUSTICE AND EQUITY; (II) SET ASIDE THE\nIMPUGNED FINAL ORDER NO. 20304-20313 OF 2018\nDATED 20.02.2018 PASSED BY THE CESTAT, SOUTH\nZONAL BENCH, BENGALURU IN THE INTEREST OF\nJUSTICE AND EQUITY AND (III) PASS SUCH OTHER\nORDER, DIRECTION AS THIS HON'BLE COURT DEEMS\nFIT IN THE CIRCUMSTANCES OF THE CASE IN THE\nINTEREST OF JUSTICE AND EQUITY.\n\n THESE APPEALS HAVING BEEN HEARD AND\nRESERVED ON 25.02.2019 AND COMING ON FOR\nPRONOUNCEMENT OF JUDGMENT THIS DAY, B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING: JUDGMENT The appellant revenue has, in these appeals under Section 35G of the Central Excise Act, 1944, impugned the Final Order dated 20.02.2018 in No.20304-20313 of 2018 by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bengaluru (for short, `Appellate Tribunal'). The Appellate Tribunal by this impugned order has allowed the respondent's appeal against the common order dated 21.9.2017 by the Commissioner of Central Taxes (Appeals-1) in Appeal Nos. 1091 to 1100 of 2017. The appellant- revenue has proposed the following as substantial questions in these appeals: \"1. Whether on the facts and in the circumstances of the case CESTAT was correct in merely setting aside the impugned order (Commissioner Appeals) and allowing the appeal without assigning any reasons and recording any finding on the controversy and recorded perverse finding?\n 2. Whether on the facts and in the circumstances of the case, CESTAT was correct in allowing the appeal by giving reference to the judgments dealing with the interest under section 11BB of the Central Excise Act, without recording any finding on the eligibility of interest under section 11BB of the Central excise Act, the manner of computation of the interest, period of commencement of interest, the quantum of refund on which interest to be quantified, in the absence of such an issue was considered either by the adjudicating authority or by the Commissioner-Appeals and recorded perverse finding?\n 3. Whether on the facts and in the circumstances of the case, CESTAT failed to record a finding regarding the quantum of refund the assessee would be eligible in view of the specific dispute on the quantum and the consequential interest on such quantum of refund?\"\n 2. The present appeals arise in the following circumstances: The respondent offered Information Technology Software Services, as defined under the Finances Act, 1994, to its foreign clients under the Service Agreement concluded with them. The respondent furnished FIRCs, along with Export Invoices, to establish that it realized export proceeds in convertible foreign currency. The respondent filed its returns in Form ST-3. Thereafter, the respondent filed Ten claims with the Assistant Commissioner, Division C, Bengaluru for refund of Unutilized CENVAT Credit for the period between July 2012 to June 2015 under Rule 5 of the CENVAT Credit Rules, 2004. The Assistant Commissioner, Division C, Bengaluru examined the respondent's claim for refund, and vide its separate orders dated 21.6.2017 allowed such claims for refund as provided for under Rule 5 of the CENVAT Credit Rules 2004 read with Notification No.27/2012-CE(NT) dated 18.6.2012 (for short, `CENVAT Credit Rules & Notification dated 18.6.2012').\nHowever, the Assistant Commissioner, Division C, Bangalore did not grant interest for the delay in refund.\n 3. The respondent, being aggrieved by these orders, insofar as refusal of interest for the delay in the refund, filed Ten appeals before the Commissioner of Central Taxes (Appeals-1), who dismissed these Ten Appeals in No. 1091-1100 of 2017 holding that the respondent would not be entitled for payment of interest because the provision for payment of interest on delayed refund under Section 11BB of the Central Excise Act, 1944 would apply only where there has been excess payment or collection of duty. The Commissioner of Central Taxes (Appeals-1) emphasized that the principle for payment of interest for the delay in refund contained in Section 11BB of the Central Excise Act, 1944 cannot be extrapolated into Schema for refund of Unutilized CENVAT Credit, as such Schema is nothing more than a facilitative mechanism provided to the exporter to convert the unutilized credit lying in its account into cash. The fundamental difference between the Schema for the unutilized CENVAT Credit and refund of the excess duty paid or collected, the Commissioner of Central Taxes emphasized, is that in the former the unutilized credit lies in the assessee's account unlike in the case of excess payment of duty that would be with the State Exchequer; as the State Exchequer would have the benefit of excess payment of duty, the provision for payment of interest is provided under Section 11BB of the Customs Act.\n 4. The respondent being aggrieved by this order, preferred an appeal with the Appellate Tribunal, and the Appellate Tribunal, by its impugned final order dated 20.2.2018, set aside the common order in Appeals in Nos. 1091-1100 of 2017 holding that the appellate order by the Commissioner of Central Taxes (Appeals-1) cannot be sustained. The Appellate Tribunal relied upon the decision of the High Court of Gujarat at Ahmedabad in Commissioner of Central Excise vs. Reliance Industries Ltd., reported in 2010(259) ELT 356 (GUJARAT). The Appellate Tribunal also observed that the decision of the High of Gujarat was challenged before the Hon'ble Supreme Court but such challenge was unsuccessful.\n 5. The learned counsel for the appellant - revenue argued that payment of interest on delayed refund is payable under Section 11BB of the Central Excise Act, 1944 (for short, the `Act'), if the claim for refund is under Section 11B of the Act. However, the present claim by the respondent is for the refund of the unutilized CENVAT credit under the CENVAT Credit Rules & Notification dated 18.6.2012. As such, the Department/Revenue cannot be called upon to pay interest for delay in refund of the unutilized CENVAT credit under Section 11BB of Act. The learned counsel elaborated that the claim for refund under Section 11B of the Act is in respect of excess duty paid or collected.\nIf the excess duty is paid or collected, then upon receipt of an application as provided under Section 11B of the Act, the interest on delay in refund is payable under Section 11BB of the Act provided that excess amount is not refunded within three months from the date of receipt of such application under Section 11B(1) of the Act. Under Section 11 BB of the Act, the interest on the excess duty paid or collected is payable from the date of receipt of application till the date of refund of such duty at such rate which is not below 5% and not exceeding 30% p.a. as is fixed by the Central Government by Notification in the Official Gazette. However, under Rule 5 of the CENVAT Credit Rules & Notification dated 18.6.2012, a manufacturer or a provider of output service is allowed refund of such unutilized CENVAT credit subject to such safeguards, conditions and limitations as may be specified. The unutilized CENVAT Credit lies in the account of the assessee and it is therefore distinct and separate from the excess duty paid or collected which would stand to the credit of the exchequer. As such, no recourse should be had to the provisions of 11BB of the Act to award interest in the event there is any delay in refund of unutilized CENVAT credit.\n 6. The learned counsel for the appellant - revenue argued that the Appellate Tribunal has not recorded any finding on the respondent's eligibility to interest under section 11BB of the Act, if interest is payable, the manner of computation of interest, the period of commencement for computing interest and the quantum of refund on which interest is to be quantified. As such, the impugned order is perfunctory and contrary to law.\n 7. The learned Counsel for the respondent, on the other hand, submitted that this question whether interest on delayed refund of unutilized CENVAT credit as contemplated under Rule 5 of the CENVAT Credit Rules & Notification dated 18.6.2012 would be permissible under Section 11BB of the Central Excise Act has been considered by the High Court of Madras as well as the High Court of Gujarat. In fact, the appellant revenue impugned the decision of the High Court of Gujarat before the Hon'ble Supreme Court, but the appellant revenue did not succeed in the said appeal. Therefore, the appellant revenue cannot re- agitate the issue again.\n 8. The learned counsel further contended that the manner of computation of interest is also settled in view of the decision of the Hon'ble Supreme Court in Ranbaxy Laboratories vs. Union of India reported in 2011(273)ELT 3(SC) wherein, the Hon'ble Supreme Court has declared that the liability of the Revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(i) of the Act and not on the expiry of the three months period from the date on which the order of refund is made. There cannot be any quarrel over the quantum of refund in view of the orders of the Assistant Commissioner, Division C, Bengaluru, Therefore, the impugned order does not suffer from any irregularity or perversity.\n 9. The rival submissions are examined in the light of the decisions by the High Court of Gujarat as well as High Court of Madras. The High Court of Gujarat in the case of Commissioner, Central Excise vs Reliance Industries Limited supra, while considering a similar canvas against the payment of interest on delayed refunds under Section 11BB of the Central Excise Act, in terms of the obligation to refund under Rule 5 of the CENVET Credit Rules & Notification dated 18.6.2012, did not accept the canvas on behalf of the revenue that the scheme for refund of unutilized CENVAT Credit is a special beneficial scheme with self contained procedure providing for the manner and method of its implementation, and hence any refund claimed under the Rules would be governed only by the provisions of the Scheme and the general provisions of Section 11BB of the Central Excise Act cannot be resorted to. The High Court of Gujarat concluded that the CENVAT credit is nothing but duty paid by the supplier of inputs which are dutiable goods manufactured by the supplier or dutiable services rendered by the service provider; when such goods/services are utilized for further manufacture or providing service, which are dutiable, the manufactured goods or service provided carry the duty paid by the Supplier of inputs as a component of its price/value. Hence, the duty payable on the ultimately manufactured goods/services rendered stands reduced to the extent of duty already paid on the inputs. Thus, the duty paid on inputs by the supplier has already been actually received by the exchequer. Therefore, there is a basic fallacy in the argument by the revenue that refund of unutilized CENVAT credit is different from excess duty paid or collected as contemplated under Section 11B of the Act. As such, the High Court of Gujarath held that when there is delay in sanctioning the refund under Rule 5 of the CENVAT Credit Rules & Notification dated 18.6.2012, the provisions of Section 11BB of the Central Excise Act would be clearly attracted.\n 10. The High Court of Madras, which was considering allowing interest on the delayed refund of unutilized credit under the MODVAT Credit Scheme, has also concluded that the MODVAT Credit taken was nothing but payment of duty which would be available to the assessee on the assessee paying duty on inputs at the time of clearance of final bills and therefore, there is statutory obligation on the part of the appellant revenue under Section 11BB of the Act to pay interest for the delayed refund of the duty.\n 11. The learned counsel for the appellant revenue is unable to persuade this court to hold that the obligation to refund unutilized CEVANT Credit under Rule 5 of the CENVAT Credit Rules & Notification dated 18.6.2012 is distinct and separate from the obligation under Section 11B of the Act in the light of the reasoning in the aforesaid decisions. This Court concurs with the reasons assigned in the aforesaid decisions to hold that the revenue would be obliged to pay under interest for the delayed refund as contemplated under Section 11BB of the Act even for the delayed refund of the Unutilized CENVAT credit under Rule 5 of the CENVAT Credit Rules & Notification dated 18.6.2012. There is also considerable force in the submissions on behalf of the respondent that in view of the decision of the Hon'ble Supreme Court Ranbaxy Laboratories vs. Union of India reported in 2011(273)ELT 3(SC) that there cannot be any dispute about the liability of the Revenue to pay interest under Section 11BB of the Act commencing from the date of expiry of three months from the date of receipt of application for refund under Section 11B(i) of the Act. The Appellate Tribunal has referred to this decision in its impugned order.\n Similarly, in view of the orders of the Assistant Commissioner, Division C, Bangalore, which has remained unchallenged as regards the quantum of refund of unutilized CENVAT credit, there cannot be any lis even as regards the quantum.\n 12. In the light of the aforesaid discussion, this court is of the considered opinion that no substantial questions arise for consideration, and the appeals are dismissed accordingly. No costs.\n 13. In view of dismissal of the appeals, IA No.2 of 2018 does not survive for consideration and the same is dismissed.\n SD/- SD/- JUDGE JUDGE nv "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "cd755eee67e940c4a574e78f10372f1d",
"to_name": null,
"type": null,
"value": {
"end": 207,
"labels": [
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],
"start": 0,
"text": "$~\n* IN THE HIGH COURT OF DELHI AT NEW DELHI\n32\n+ ITA 807/2015\n\n DELHI BUREAU OF TEXT BOOKS ..... Appellant\n Through:"
}
},
{
"from_name": null,
"id": "7ed825482f0446109f344705f9cf6429",
"to_name": null,
"type": null,
"value": {
"end": 245,
"labels": [
"PREAMBLE"
],
"start": 208,
"text": "Ms. Prem Lata Bansal, Senior Advocate"
}
},
{
"from_name": null,
"id": "fd10fa39047d45b9980a8a09a7b00e75",
"to_name": null,
"type": null,
"value": {
"end": 550,
"labels": [
"PREAMBLE"
],
"start": 267,
"text": "with Ms. Nidhi Raman and Ms. Isha Khanna,\n Advocates along with Mr. Ashok Kumar,\n Accounts Officer, DBTB\n\n versus\n\n DIRECTOR OF INCOME TAX (E) ..... Respondent\n Through:"
}
},
{
"from_name": null,
"id": "86bed51fc3c84e79b66a93084acd3a89",
"to_name": null,
"type": null,
"value": {
"end": 585,
"labels": [
"PREAMBLE"
],
"start": 551,
"text": "Mr. Rahul Kaushik, Senior standing"
}
},
{
"from_name": null,
"id": "12aff193e20642949b556d00d720d092",
"to_name": null,
"type": null,
"value": {
"end": 781,
"labels": [
"PREAMBLE"
],
"start": 585,
"text": "\n counsel.\n\n With\n33\n+ ITA 810/2015\n\n DELHI BUREAU OF TEXT BOOKS ....."
}
},
{
"from_name": null,
"id": "c174574e538e483ba41688137eae629c",
"to_name": null,
"type": null,
"value": {
"end": 791,
"labels": [
"PREAMBLE"
],
"start": 782,
"text": "Appellant"
}
},
{
"from_name": null,
"id": "f1d4de7d931d42abac93cb6cbfab9c20",
"to_name": null,
"type": null,
"value": {
"end": 821,
"labels": [
"PREAMBLE"
],
"start": 813,
"text": "Through:"
}
},
{
"from_name": null,
"id": "a842cada78c44250a7992296bf2f0706",
"to_name": null,
"type": null,
"value": {
"end": 859,
"labels": [
"PREAMBLE"
],
"start": 822,
"text": "Ms. Prem Lata Bansal, Senior Advocate"
}
},
{
"from_name": null,
"id": "65655cb9150f44aeb7447791ce661f6f",
"to_name": null,
"type": null,
"value": {
"end": 1163,
"labels": [
"PREAMBLE"
],
"start": 881,
"text": "with Ms. Nidhi Raman and Ms. Isha Khanna,\n Advocates along with Mr. Ashok Kumar,\n Accounts Officer, DBTB\n\n versus\n\n DIRECTOR OF INCOME TAX (E) ..... Respondent\n Through:"
}
},
{
"from_name": null,
"id": "bfd8bf7f18224fc4a6d52c0ac8278d98",
"to_name": null,
"type": null,
"value": {
"end": 1198,
"labels": [
"PREAMBLE"
],
"start": 1164,
"text": "Mr. Rahul Kaushik, Senior standing"
}
},
{
"from_name": null,
"id": "4d2466bd0c224430acb8d7975595256f",
"to_name": null,
"type": null,
"value": {
"end": 1353,
"labels": [
"PREAMBLE"
],
"start": 1198,
"text": "\n counsel.\n\n With\n34\n+ ITA 811/2015 & CM 24170/2015\n\n DELHI BUREAU OF TEXT"
}
},
{
"from_name": null,
"id": "2ba6b1de1a7a4e69b60785ded7c83ee0",
"to_name": null,
"type": null,
"value": {
"end": 1442,
"labels": [
"PREAMBLE"
],
"start": 1354,
"text": "BOOKS ..... Appellant\n\n\n\n\n\n Through:"
}
},
{
"from_name": null,
"id": "a6a4e774c2fe4c27857a96689ae50596",
"to_name": null,
"type": null,
"value": {
"end": 1480,
"labels": [
"PREAMBLE"
],
"start": 1443,
"text": "Ms. Prem Lata Bansal, Senior Advocate"
}
},
{
"from_name": null,
"id": "a935e5d964fe4e7caa900b2829aa2dfa",
"to_name": null,
"type": null,
"value": {
"end": 1819,
"labels": [
"PREAMBLE"
],
"start": 1513,
"text": "with Ms. Nidhi Raman and Ms. Isha Khanna,\n Advocates along with Mr. Ashok Kumar,\n Accounts Officer, DBTB\n\n versus\n\n DIRECTOR OF INCOME TAX (E) ..... Respondent\n Through:"
}
},
{
"from_name": null,
"id": "868f7bc3f9be422a959f11fc4c50fc6a",
"to_name": null,
"type": null,
"value": {
"end": 1854,
"labels": [
"PREAMBLE"
],
"start": 1820,
"text": "Mr. Rahul Kaushik, Senior standing"
}
},
{
"from_name": null,
"id": "4a9bc2d47083464c938f72c1800f5f91",
"to_name": null,
"type": null,
"value": {
"end": 2009,
"labels": [
"PREAMBLE"
],
"start": 1854,
"text": "\n counsel.\n\n And\n35\n+ ITA 812/2015\n\n DELHI BUREAU OF TEXT"
}
},
{
"from_name": null,
"id": "85097024ed7047a89040b7d5603afa7b",
"to_name": null,
"type": null,
"value": {
"end": 2078,
"labels": [
"PREAMBLE"
],
"start": 2010,
"text": "BOOKS ..... Appellant\n Through:"
}
},
{
"from_name": null,
"id": "1b640be820aa416c98b87e3a0eef106f",
"to_name": null,
"type": null,
"value": {
"end": 2116,
"labels": [
"PREAMBLE"
],
"start": 2079,
"text": "Ms. Prem Lata Bansal, Senior Advocate"
}
},
{
"from_name": null,
"id": "7e3d64036889401188c13908416da666",
"to_name": null,
"type": null,
"value": {
"end": 2179,
"labels": [
"PREAMBLE"
],
"start": 2116,
"text": "\n with Ms. Nidhi Raman and Ms. Isha Khanna,"
}
},
{
"from_name": null,
"id": "adbe3df1e2a94bd7a10cd0db3d58645c",
"to_name": null,
"type": null,
"value": {
"end": 2358,
"labels": [
"PREAMBLE"
],
"start": 2179,
"text": "\n Advocates along with Mr. Ashok Kumar,\n Accounts Officer, DBTB\n\n versus\n\n DIRECTOR OF INCOME TAX (E)"
}
},
{
"from_name": null,
"id": "2888110d5d3e4e5e867e21702fee624a",
"to_name": null,
"type": null,
"value": {
"end": 2414,
"labels": [
"PREAMBLE"
],
"start": 2375,
"text": "..... Respondent\n "
}
},
{
"from_name": null,
"id": "9005d227e95e43108b5fd62b614b5dc0",
"to_name": null,
"type": null,
"value": {
"end": 2604,
"labels": [
"PREAMBLE"
],
"start": 2414,
"text": "Through: Mr. Rahul Kaushik, Senior standing\n counsel.\n CORAM:\n JUSTICE S. MURALIDHAR\n JUSTICE CHANDER SHEKHAR\n\n ORDER"
}
},
{
"from_name": null,
"id": "057e76025f00412a8a686d35985629c1",
"to_name": null,
"type": null,
"value": {
"end": 2647,
"labels": [
"NONE"
],
"start": 2604,
"text": "\n% 03.05.2017"
}
},
{
"from_name": null,
"id": "19588a9cabf449999a50c3289ba71f00",
"to_name": null,
"type": null,
"value": {
"end": 2669,
"labels": [
"NONE"
],
"start": 2648,
"text": "Dr. S. Muralidhar, J."
}
},
{
"from_name": null,
"id": "bcc0b128dc074564903af0e2f997df50",
"to_name": null,
"type": null,
"value": {
"end": 3078,
"labels": [
"FAC"
],
"start": 2670,
"text": "1. These four appeals by the Delhi Bureau of Text Books („the Assessee') under Section 260-A of the Income Tax Act, 1961 („Act‟) are directed against the common impugned order dated 23 rd April 2015 passed by the Income Tax Appellate Tribunal („ITAT‟) in ITA Nos. 2362/Del/2010, 2363/Del/2010, 3796/Del/2011 and 56/Del/2013 for the Assessment Years („AYs‟) 2006-07, 2007-08, 2008-09 and 2009-10 respectively."
}
},
{
"from_name": null,
"id": "edc9889796e34d5fa1248483dd3b9993",
"to_name": null,
"type": null,
"value": {
"end": 3099,
"labels": [
"ISSUE"
],
"start": 3078,
"text": "\n Questions of law 2."
}
},
{
"from_name": null,
"id": "ee3fc86cfcb64baaa13902b12b096467",
"to_name": null,
"type": null,
"value": {
"end": 4026,
"labels": [
"ISSUE"
],
"start": 3100,
"text": "While admitting these appeals on 16th December 2015 this Court framed the following questions of law: (i) Whether ITAT was correct in law and on facts in setting aside the order passed by CIT (A) and thereby denying exemption to the Assessee under Sections 11 and 12 of the Income Tax Act?\n (ii) Whether the ITAT was correct in law and on facts in holding that the activities carried out by the Assessee fall under the 4 th limb i.e., “the advancement of any other object of General Public Utility” of the definition of the term “charitable purpose” under Section 2 (15) of the Act and not under the 2nd limb “education”?\n (iii) Whether ITAT could re-examine the issue already decided by it vide order dated 30.09.1980 in favour of the Assessee for AY 1975- 76 and 1976-77, without referring the same to the large Bench particularly when there is no change in the activities carried out by the Assessee throughout these years?"
}
},
{
"from_name": null,
"id": "f6eea7c498ea4a2397a93f501d213315",
"to_name": null,
"type": null,
"value": {
"end": 4047,
"labels": [
"FAC"
],
"start": 4026,
"text": "\n Background facts 3."
}
},
{
"from_name": null,
"id": "cd9fa9fae4564495a867ff50adb9092c",
"to_name": null,
"type": null,
"value": {
"end": 4158,
"labels": [
"FAC"
],
"start": 4048,
"text": "The background facts are that the Assessee is a society registered under the Societies Registration Act, 1860."
}
},
{
"from_name": null,
"id": "e93d9636eed74b1a979cac5a0b1e1045",
"to_name": null,
"type": null,
"value": {
"end": 4278,
"labels": [
"FAC"
],
"start": 4159,
"text": "It was set up by the Ministry of Education, Government of India as well as by the Government of NCT of Delhi („GNCTD‟)."
}
},
{
"from_name": null,
"id": "a1f584adf15341d48f89eee0d43aa3b1",
"to_name": null,
"type": null,
"value": {
"end": 4316,
"labels": [
"FAC"
],
"start": 4279,
"text": "It was registered on 28th March 1970."
}
},
{
"from_name": null,
"id": "467cd429560248c786be9b2b08e230d5",
"to_name": null,
"type": null,
"value": {
"end": 4510,
"labels": [
"FAC"
],
"start": 4317,
"text": "The Assessee was set up to ensure timely supply of prescribed text books at fair prices to school students and to improve the quality of primary and secondary school education in Delhi schools."
}
},
{
"from_name": null,
"id": "ceb931e73fa5410aa00ef6d98f9d16f7",
"to_name": null,
"type": null,
"value": {
"end": 4627,
"labels": [
"FAC"
],
"start": 4510,
"text": "\n 4. The Assessee was registered as charitable under Section 12A (a) of the Act by an order dated 27th December 1973."
}
},
{
"from_name": null,
"id": "367a8273abbf4771a0a4bdb4da3ac0fc",
"to_name": null,
"type": null,
"value": {
"end": 4692,
"labels": [
"FAC"
],
"start": 4628,
"text": "The Assessee is attached to the Directorate of Education, GNCTD."
}
},
{
"from_name": null,
"id": "c12141e66f144f27a6ca43c1c860b504",
"to_name": null,
"type": null,
"value": {
"end": 4908,
"labels": [
"FAC"
],
"start": 4693,
"text": "Its activities are administered by the Board of Directors („BoD‟) comprising of seven officers of the Directorate of Education in an ex-officio capacity and two members nominated by the Lieutenant Governor of Delhi."
}
},
{
"from_name": null,
"id": "4fda9641ca094831ae310770d45482b8",
"to_name": null,
"type": null,
"value": {
"end": 4975,
"labels": [
"FAC"
],
"start": 4909,
"text": "The Director of Education is the Chairman of the Assessee Society."
}
},
{
"from_name": null,
"id": "669f93aae5f04020808432e6a4f3cf87",
"to_name": null,
"type": null,
"value": {
"end": 5211,
"labels": [
"FAC"
],
"start": 4975,
"text": "\n 5. The Assessee is engaged in printing and publication of text books for Class I to VIII of Government Schools, Municipal Corporation of Delhi („MCD‟) schools, New Delhi Municipal Council („NDMC‟) Schools and Delhi Cantonment Schools."
}
},
{
"from_name": null,
"id": "82f49d277d7b4929b9342175982e548d",
"to_name": null,
"type": null,
"value": {
"end": 5271,
"labels": [
"FAC"
],
"start": 5212,
"text": "The books are provided at subsidized rates by the Assessee."
}
},
{
"from_name": null,
"id": "4595f8d3080f4f1497e1d022bf545455",
"to_name": null,
"type": null,
"value": {
"end": 5337,
"labels": [
"FAC"
],
"start": 5272,
"text": "There is nominal profit to school students and wholesale dealers."
}
},
{
"from_name": null,
"id": "7c3f27ecdfcd4a54b8aee2edce20e53d",
"to_name": null,
"type": null,
"value": {
"end": 5435,
"labels": [
"FAC"
],
"start": 5338,
"text": "The Assessee is also distributing free books, reading material and school bags to needy students."
}
},
{
"from_name": null,
"id": "8df11e256b894802b20b6ec5971ac3d3",
"to_name": null,
"type": null,
"value": {
"end": 7097,
"labels": [
"FAC"
],
"start": 5435,
"text": "\n 6. Para 4 of the Memorandum of the Assessee Society sets out its aims and objectives and reads as under: 1) To aid and promote the advancement of education particularly elementary and secondary education through production of high quality text books and other instructional material such as teachers hand-books, work books etc., 2) To arrange for printing, publishing, stocking and distribution of approved text books and other teaching learning materials, 3) To encourage through training or otherwise authors and writers of text books and other teaching material, 4) To undertake evaluation and research for improvement of curricula, text books and other instructional material, 5) To make available at subsidized cost or free of cost or in some other suitable manner text books and other learning material to the children of economically weak families and similarly to make teaching material and aid available to teachers at subsidized cost or free of cost or in other suitable manner so as to promote better teaching in Delhi Schools with the prior approval of Delhi Admin, and 6) To obtain manuscripts of subject text books prepared by the Text Book Branch of the Directorate of Education on such terms and conditions as may be determined by the Director of Education for printing, publishing and distribution in the Union Territory of Delhi.\n 7. Rule 17 of the Rules and Regulations governing the Assessee/Society states thus: “(1) The income of the Society derived from the Government Loans or sale of books or other sources shall be applied only towards the promotions of its objectives and Society, as laid down under this “Memorandum of Association.”"
}
},
{
"from_name": null,
"id": "b94ff5bb664646ad851f01cfe79ceeb2",
"to_name": null,
"type": null,
"value": {
"end": 7117,
"labels": [
"FAC"
],
"start": 7098,
"text": "Past tax history 8."
}
},
{
"from_name": null,
"id": "eb7b52899fae40d0ac012b445e585827",
"to_name": null,
"type": null,
"value": {
"end": 7222,
"labels": [
"FAC"
],
"start": 7118,
"text": "The Assessee's income was exempt from tax under Section 11 of the Act during the AYs 1971-72 to 2005-06."
}
},
{
"from_name": null,
"id": "f8bd046268b448d899c2df29846eddbd",
"to_name": null,
"type": null,
"value": {
"end": 7514,
"labels": [
"FAC"
],
"start": 7223,
"text": "When in AYs 1975-76 and 1976-77, the benefit of exemption from payment of income tax was denied by the concerned Assessing Officer („AO‟), the Assessee went in appeal before the Commissioner of Income Tax (Appeals) [„CIT (A)‟] who allowed the appeal and restored the exemption. The Revenue‟s"
}
},
{
"from_name": null,
"id": "cde914c3f7a14cacae3a6aae87090d35",
"to_name": null,
"type": null,
"value": {
"end": 7651,
"labels": [
"FAC"
],
"start": 7515,
"text": "appeals against the said order were dismissed by the ITAT vide order dated 30th September 1980 in ITA Nos.1239/Del/1979 & 4448/Del/1979."
}
},
{
"from_name": null,
"id": "edb4a638fc74445285e60c219b030f80",
"to_name": null,
"type": null,
"value": {
"end": 7723,
"labels": [
"FAC"
],
"start": 7652,
"text": "Those orders of the ITAT for AYs 1975-76 and 1976-77 attained finality."
}
},
{
"from_name": null,
"id": "47432c3686dd4f80998c86a95b9a66d8",
"to_name": null,
"type": null,
"value": {
"end": 7863,
"labels": [
"FAC"
],
"start": 7724,
"text": "The net result is that continuously from AY 1971-72 to AY 2005-06 the Assessee has had the benefit of exemption from payment of income tax."
}
},
{
"from_name": null,
"id": "e2627b0fc43d46718ad4719d0e36dacb",
"to_name": null,
"type": null,
"value": {
"end": 7907,
"labels": [
"FAC"
],
"start": 7863,
"text": "\n Order of the AO for the AYs in question 9."
}
},
{
"from_name": null,
"id": "998a76a8d6884e3ab8562952526c2e89",
"to_name": null,
"type": null,
"value": {
"end": 8064,
"labels": [
"FAC"
],
"start": 7908,
"text": "For AY 2006-07, the Assessee filed its return of income on 31 st October 2007 declaring „Nil‟ income claiming exemption under Sections 11 and 12 of the Act."
}
},
{
"from_name": null,
"id": "9650c2078417458f8e60078d59c82a3a",
"to_name": null,
"type": null,
"value": {
"end": 8210,
"labels": [
"FAC"
],
"start": 8065,
"text": "The AO called upon the Assessee to explain why the activity of publication and sale/purchase of books should not be treated as business activity."
}
},
{
"from_name": null,
"id": "ba1aad8120c744e69c4078c430011fe0",
"to_name": null,
"type": null,
"value": {
"end": 8331,
"labels": [
"FAC"
],
"start": 8211,
"text": "Secondly, the Assessee was asked whether it was maintaining books of accounts as mandated by Section 11 (4A) of the Act."
}
},
{
"from_name": null,
"id": "18adb3a916b34202a796e062c5477477",
"to_name": null,
"type": null,
"value": {
"end": 8414,
"labels": [
"FAC"
],
"start": 8332,
"text": "The approach of the AO was to consider the Assessee as a „General Public Utility.‟"
}
},
{
"from_name": null,
"id": "3c453d0d189544fbb600363e58b44167",
"to_name": null,
"type": null,
"value": {
"end": 8737,
"labels": [
"FAC"
],
"start": 8415,
"text": "Referring to the decision of the Supreme Court in Sole Trustee Loka Shikshana Trust v. Commissioner of Income Tax (1975) 101 ITR 234 (SC), the AO observed that since the Assessee was earning huge profit margins of about 35.15%, the activity of publication and sale of books could not be said to be a „charitable activity‟."
}
},
{
"from_name": null,
"id": "a790c82e205648b793e7587099735698",
"to_name": null,
"type": null,
"value": {
"end": 8859,
"labels": [
"FAC"
],
"start": 8738,
"text": "Accordingly, the AO treated the income from the sale and publication of books as taxable for each of the AYs in question."
}
},
{
"from_name": null,
"id": "bc284c8cd36547b1beeeb6226e9d9817",
"to_name": null,
"type": null,
"value": {
"end": 8885,
"labels": [
"FAC"
],
"start": 8859,
"text": "\n Order of the CIT (A) 10."
}
},
{
"from_name": null,
"id": "0a5217657c20419585dc47057389aeb5",
"to_name": null,
"type": null,
"value": {
"end": 9024,
"labels": [
"FAC"
],
"start": 8886,
"text": "Aggrieved by the above order, the Assessee filed appeals before the CIT (A) who by order dated 31st March 2010 reversed the AO‟s decision."
}
},
{
"from_name": null,
"id": "3da937f29d2a430689957f6190d6ad3d",
"to_name": null,
"type": null,
"value": {
"end": 9209,
"labels": [
"FAC"
],
"start": 9025,
"text": "The CIT (A) noted that the AO had not returned a finding that the Assessee‟s activities were beyond the aims and objectives of the Society as per its Memorandum of Association & Rules."
}
},
{
"from_name": null,
"id": "520d549f68be4c74a90433c33f858fff",
"to_name": null,
"type": null,
"value": {
"end": 9422,
"labels": [
"FAC"
],
"start": 9210,
"text": "Once registration had been granted under Section 12 A of the Act, the AO could not re-examine the issue whether what was being carried on by the Assessee was a charitable activity under Section 2 (15) of the Act."
}
},
{
"from_name": null,
"id": "e1f66b66a74c47b4ad831207db5a082e",
"to_name": null,
"type": null,
"value": {
"end": 9515,
"labels": [
"FAC"
],
"start": 9423,
"text": "The CIT (A) referred to the decision in ACIT v. Surat City Gymkhana (2008) 300 ITR 214 (SC)."
}
},
{
"from_name": null,
"id": "212691b2729d4deda3eec0a93896ab15",
"to_name": null,
"type": null,
"value": {
"end": 9649,
"labels": [
"FAC"
],
"start": 9515,
"text": "\n 11. The CIT (A) further held that generation of income is no test in itself for determining the charitable nature of the activities."
}
},
{
"from_name": null,
"id": "13d388687393447ebf69a23351efc1be",
"to_name": null,
"type": null,
"value": {
"end": 9814,
"labels": [
"FAC"
],
"start": 9650,
"text": "Earning of a surplus in working out the charitable purpose would not place the entity outside the purview of Section 2 (15) read with Sections 11 and 12 of the Act."
}
},
{
"from_name": null,
"id": "085c7aa9315d468d8ca1bf65f26856e6",
"to_name": null,
"type": null,
"value": {
"end": 10039,
"labels": [
"FAC"
],
"start": 9815,
"text": "The CIT (A) referred to the decisions in ACIT v. Surat Art Silk Cloth Manufacturers Association (1980) 2 SCC 31, Aditanar Education Institution v. ACIT (1997) 3 SCC 346 and ACIT v. Thanthi Trust (2001) 247 ITR 785 (SC).\n 12."
}
},
{
"from_name": null,
"id": "47352a0f7bb64b358d8dbcb87e96266b",
"to_name": null,
"type": null,
"value": {
"end": 10234,
"labels": [
"FAC"
],
"start": 10040,
"text": "For the subsequent AYs, the AO continued to deny the exemption by the assessment orders dated 26th November 2010, 15th December 2011 and 31st December 2008 for the AYs 2008-09, 2009-10, 2006-07."
}
},
{
"from_name": null,
"id": "cf73bd9114e044d181cd35ee30814309",
"to_name": null,
"type": null,
"value": {
"end": 10246,
"labels": [
"FAC"
],
"start": 10235,
"text": "The CIT (A)"
}
},
{
"from_name": null,
"id": "44ba05f925fc49cb9e93d18912282adb",
"to_name": null,
"type": null,
"value": {
"end": 10396,
"labels": [
"FAC"
],
"start": 10247,
"text": "by the corresponding orders dated 30th June 2011, 18th October 2012 and 22nd February 2010 allowed the Assessee's appeals and restored the exemption."
}
},
{
"from_name": null,
"id": "c3d97939eea242df9f715f027c61818c",
"to_name": null,
"type": null,
"value": {
"end": 10428,
"labels": [
"FAC"
],
"start": 10396,
"text": "\n Impugned order of the ITAT 13."
}
},
{
"from_name": null,
"id": "b7f203867770488f948d9e657373c38c",
"to_name": null,
"type": null,
"value": {
"end": 10562,
"labels": [
"FAC"
],
"start": 10429,
"text": "Aggrieved by the above orders of the CIT (A), the Revenue went in appeal before the ITAT which by a common order allowed the appeals."
}
},
{
"from_name": null,
"id": "74d8d959c84d469b851f3a0a4315c128",
"to_name": null,
"type": null,
"value": {
"end": 10625,
"labels": [
"FAC"
],
"start": 10563,
"text": "The impugned order of the ITAT may be summarised as under: (a)"
}
},
{
"from_name": null,
"id": "09ddaf8d81514d609bc702dd4387e637",
"to_name": null,
"type": null,
"value": {
"end": 10867,
"labels": [
"FAC"
],
"start": 10626,
"text": "After perusing the income and expenditure statement for the AYs in question, the ITAT observed that the AO had rightly held that the activity of the Assessee was prima facie in the nature of a business activity of sale and purchase of books."
}
},
{
"from_name": null,
"id": "9221fe0279ab47b788d4b55d084c6440",
"to_name": null,
"type": null,
"value": {
"end": 11005,
"labels": [
"FAC"
],
"start": 10868,
"text": "The books had been sold at a huge profit margin about 40% which showed that the Assessee was engaged in the activities of earning profit."
}
},
{
"from_name": null,
"id": "ee0faee166a64a1ca0507760dde4822a",
"to_name": null,
"type": null,
"value": {
"end": 11132,
"labels": [
"FAC"
],
"start": 11006,
"text": "Accordingly, it was held that the activities of the Assessee society are in the nature of business and not charitable purpose."
}
},
{
"from_name": null,
"id": "366d36a255904038807373bdae435bd0",
"to_name": null,
"type": null,
"value": {
"end": 11307,
"labels": [
"FAC"
],
"start": 11133,
"text": "The decisions in Sole Trustee, Loka Shikshana Trust v. CIT (supra) and Oxford University Press v.\n Commissioner of Income Tax (2001) 247 ITR 658 (SC) were referred to."
}
},
{
"from_name": null,
"id": "e9c0ec6568e84169a3d38b84628c10c7",
"to_name": null,
"type": null,
"value": {
"end": 11525,
"labels": [
"FAC"
],
"start": 11307,
"text": "\n (b) Even if the registration is granted to the Assessee under Section 12 AA of the Act, the AO was not precluded from examining whether the Assessee complied with the requirement of Section 11 of the Act in every AY."
}
},
{
"from_name": null,
"id": "5a53228062664e36ab01a95f6eea79be",
"to_name": null,
"type": null,
"value": {
"end": 11743,
"labels": [
"RLC"
],
"start": 11525,
"text": "\n (c) The ITAT held that its earlier order dated 30th September 1980 for AYs 1975-76 and 1976-77 had not considered the income and expenditure statements filed by the Assessee for those AYs and other relevant evidence."
}
},
{
"from_name": null,
"id": "ab773062a1754c4d9f0a8a0bcb936955",
"to_name": null,
"type": null,
"value": {
"end": 11798,
"labels": [
"RLC"
],
"start": 11744,
"text": "It was observed that the facts on hand were different."
}
},
{
"from_name": null,
"id": "4c1780accbca4040ba7308b7f75e5e1b",
"to_name": null,
"type": null,
"value": {
"end": 12018,
"labels": [
"RLC"
],
"start": 11799,
"text": "It further held that the Assessee has not maintained separate books of accounts for its activities of sale and purchase of books for the AY in question and thus has violated the provisions of Section 11 (4A) of the Act."
}
},
{
"from_name": null,
"id": "0ffc57fd202e42c2ae0f86f07497874b",
"to_name": null,
"type": null,
"value": {
"end": 12148,
"labels": [
"RLC"
],
"start": 12019,
"text": "The Assessee had made accumulation in excess and “without specifying any purpose” and “was not wholly for the charitable purpose."
}
},
{
"from_name": null,
"id": "595bc4a35a7e4c2f8c6edea5ce30b67d",
"to_name": null,
"type": null,
"value": {
"end": 12275,
"labels": [
"RLC"
],
"start": 12148,
"text": "” Reliance was placed on the decision of the Supreme Court in Nachimuthu Industrial Association v. CIT (1999) 235 ITR 190 (SC)."
}
},
{
"from_name": null,
"id": "bf1e55e39e1749dd9f6c22d03b4d615d",
"to_name": null,
"type": null,
"value": {
"end": 12288,
"labels": [
"ARG_PETITIONER"
],
"start": 12277,
"text": "Submissions"
}
},
{
"from_name": null,
"id": "55828fc968bf449086cd14a07280cae1",
"to_name": null,
"type": null,
"value": {
"end": 12317,
"labels": [
"ARG_PETITIONER"
],
"start": 12289,
"text": "on behalf of the Assessee 14"
}
},
{
"from_name": null,
"id": "3c5a22220312434fbdb654d7bec8e582",
"to_name": null,
"type": null,
"value": {
"end": 12577,
"labels": [
"ARG_PETITIONER"
],
"start": 12317,
"text": ". Ms. Prem Lata Bansal, learned Senior counsel for the Assessee, submitted that the ITAT erred in not appreciating the law governing the grant of exemption to a charitable institution as defined under Section 2 (15) read with Sections 11 (1) and 12 of the Act."
}
},
{
"from_name": null,
"id": "0a9cb9efdc234ca6913f04597f6ff583",
"to_name": null,
"type": null,
"value": {
"end": 12801,
"labels": [
"ARG_PETITIONER"
],
"start": 12578,
"text": "Ms. Bansal submitted that in terms of the law explained in Sole Trustee, Loka Shikshana Trust v. CIT (supra), the Assessee‟s income was derived from activity that constituted „charitable purpose‟ which included „education‟."
}
},
{
"from_name": null,
"id": "040cccb4e08d4c9ab2305e47c22e1b32",
"to_name": null,
"type": null,
"value": {
"end": 12970,
"labels": [
"ARG_PETITIONER"
],
"start": 12802,
"text": "Ms. Bansal submitted that the ITAT had erred in affirming the view of the AO that the income was from „trade, commerce or business‟ and therefore, within the ambit of „"
}
},
{
"from_name": null,
"id": "5c985d39e7cc4f4f8ad780707986c1b1",
"to_name": null,
"type": null,
"value": {
"end": 12994,
"labels": [
"ARG_PETITIONER"
],
"start": 12970,
"text": "general public utility‟."
}
},
{
"from_name": null,
"id": "a143e464e28e48ffbc77b2106b4b8e1a",
"to_name": null,
"type": null,
"value": {
"end": 13252,
"labels": [
"ARG_PETITIONER"
],
"start": 12995,
"text": "Ms. Bansal referred to the decision in Assam Text Book Production & Publication Corporation Limited v. CIT (2009) 319 ITR 317 (SC) which had reversed the view taken by the Gauhati High Court which, incidentally, was followed by the ITAT in the present case."
}
},
{
"from_name": null,
"id": "4db921f6e06b4c2499324eb40d50186b",
"to_name": null,
"type": null,
"value": {
"end": 13435,
"labels": [
"ARG_PETITIONER"
],
"start": 13253,
"text": "Ms.\nBansal also placed reliance on the decisions in CIT v. Rajasthan State Text Book Board (2000) 244 CTR 667 (Raj), Secondary Board of Education v.\nITO (1972) 86 ITR 408 (Ori).\n 15."
}
},
{
"from_name": null,
"id": "ed6ab853a882459882c7e6c5b84dc46f",
"to_name": null,
"type": null,
"value": {
"end": 13701,
"labels": [
"ARG_PETITIONER"
],
"start": 13436,
"text": "Referring to the decision of the Supreme Court in ACIT v. Surat City Jimkhana (supra) Ms. Bansal submitted that once the registration of a trust under Section 12 A of the IT Act is given the AO cannot thereafter make a further probe into the purposes of the entity."
}
},
{
"from_name": null,
"id": "e03c4c0f4f0d4e8c93a7fef5bd54eaa2",
"to_name": null,
"type": null,
"value": {
"end": 13788,
"labels": [
"ARG_PETITIONER"
],
"start": 13702,
"text": "She also referred to the decision in Hiralal Bhagwati v. CIT (2000) 246 ITR 188 (Guj)."
}
},
{
"from_name": null,
"id": "4da83384338c4d3aa8c65bbe52f42273",
"to_name": null,
"type": null,
"value": {
"end": 14119,
"labels": [
"ARG_PETITIONER"
],
"start": 13789,
"text": "Ms. Bansal pointed out that the legal position has been discussed extensively in Institution of Chartered Accountants of India v. Director General of Income Tax (Exemptions) (2012) 347 ITR 99 (Del) where the dominant function of the institution was examined in order to determine whether its earnings were for charitable purposes."
}
},
{
"from_name": null,
"id": "ffa55a05c4a34fb086a928a344c97bcc",
"to_name": null,
"type": null,
"value": {
"end": 14202,
"labels": [
"ARG_PETITIONER"
],
"start": 14119,
"text": "\n 16. Finally, Ms. Bansal submitted that the rule of consistency should also apply."
}
},
{
"from_name": null,
"id": "8526d30f141e495982ad810925b73c55",
"to_name": null,
"type": null,
"value": {
"end": 14428,
"labels": [
"ARG_PETITIONER"
],
"start": 14203,
"text": "She pointed out that from AY 1974-75 till 2005-06, exemption has been granted to the Appellant and with absolutely no change of circumstances there was no occasion for a different approach to be taken for the AYs in question."
}
},
{
"from_name": null,
"id": "794b10899fe9446581954a85f0c6fa84",
"to_name": null,
"type": null,
"value": {
"end": 14677,
"labels": [
"ARG_PETITIONER"
],
"start": 14429,
"text": "She also placed reliance on the decisions of the Supreme Court in CIT v. Excel Industries (2013) 262 CTR 261 (SC) and Radhasoami Satsang Saomi Bagh, Agra v. Commissioner of Income Tax (1992) 193 ITR 321 (SC) Submissions on behalf of the Revenue 17."
}
},
{
"from_name": null,
"id": "5e7a9b412c0e4041895acd6d5cb84431",
"to_name": null,
"type": null,
"value": {
"end": 14984,
"labels": [
"ARG_RESPONDENT"
],
"start": 14678,
"text": "Countering the above submissions, Mr. Rahul Kaushik, learned Senior standing counsel for the Revenue, sought to support the impugned order of the ITAT by pointing out that the level of profits earned by the Appellant during the AYs in question took its activity outside the ambit of a „charitable purpose‟."
}
},
{
"from_name": null,
"id": "c185cd52c5d04391badacfdcf3d6b376",
"to_name": null,
"type": null,
"value": {
"end": 15129,
"labels": [
"ARG_RESPONDENT"
],
"start": 14985,
"text": "He submitted that the ITAT was justified in negativing the plea by relying on the decision in Sole Trustee, Loka Shikshana Trust v. CIT (supra)."
}
},
{
"from_name": null,
"id": "d01b374a807d4d34ac6bfc86c4a93828",
"to_name": null,
"type": null,
"value": {
"end": 15423,
"labels": [
"ARG_RESPONDENT"
],
"start": 15130,
"text": "While Mr. Kaushik was unable to dispute that the activity of the Appellant involved „education‟, he maintained that the Appellant did not satisfy the requirement of the proviso under Section 2 (15) of the Act viz., that the activity should not be related to „trade, commerce or business‟.\n 18."
}
},
{
"from_name": null,
"id": "683b31ef666141138dff795a22e1c4c6",
"to_name": null,
"type": null,
"value": {
"end": 15819,
"labels": [
"ARG_RESPONDENT"
],
"start": 15424,
"text": "As regards the submission regarding the issue for grant of registration under Section 12A of the Act precluding the AO from re-examining the question of eligibility of the Assessee to examine, Mr. Kaushik referred to the case law referred to by the ITAT and submitted that the AO was within his rights to again examine whether those conditions were satisfied in every one of the AYs in question."
}
},
{
"from_name": null,
"id": "b9e8146f4ee743e39037a3ce26bc70de",
"to_name": null,
"type": null,
"value": {
"end": 15892,
"labels": [
"ARG_RESPONDENT"
],
"start": 15819,
"text": "\n 19. Lastly, it was submitted by Mr. Kaushik that every AY was separate."
}
},
{
"from_name": null,
"id": "a2bd98bb3bf945739ea4e04bd1f8c709",
"to_name": null,
"type": null,
"value": {
"end": 16072,
"labels": [
"ARG_RESPONDENT"
],
"start": 15892,
"text": "\nMerely because in an earlier AY another point of view was expressed would not preclude the AO from re-visiting the issue if he found that the facts and circumstances warranted it."
}
},
{
"from_name": null,
"id": "087b6ea5451940f69d023657dc34109b",
"to_name": null,
"type": null,
"value": {
"end": 16259,
"labels": [
"PRE_RELIED"
],
"start": 16073,
"text": "He placed reliance on the decisions in C.K.\nGangadharan v. Commissioner of Income Tax, Cochin (2008) 8 SCC 739 and Commissioner of Central Excise, Raipur v. Hira Cement (2006) 2 SCC 439."
}
},
{
"from_name": null,
"id": "6b5dbad5cd974ac5afc01643bb68c9bd",
"to_name": null,
"type": null,
"value": {
"end": 16316,
"labels": [
"NONE"
],
"start": 16259,
"text": "\n Is the Assessee engaged in the activity of 'education'?"
}
},
{
"from_name": null,
"id": "bdcfafca2cc54365879636f271239e21",
"to_name": null,
"type": null,
"value": {
"end": 16452,
"labels": [
"ANALYSIS"
],
"start": 16316,
"text": "\n20. The Court first considers the question of the interpretation placed on the word „education‟ occurring in Section 2 (15) of the Act."
}
},
{
"from_name": null,
"id": "5b9498c9a6d1481fb8cbd8664193995c",
"to_name": null,
"type": null,
"value": {
"end": 16617,
"labels": [
"ANALYSIS"
],
"start": 16453,
"text": "The exclusive activity of the Assessee is the publication and printing of text books and their distribution to Government schools and schools of the MCD, NDMC, etc."
}
},
{
"from_name": null,
"id": "b00813d337fb40eab26397fccb6acb51",
"to_name": null,
"type": null,
"value": {
"end": 16728,
"labels": [
"ANALYSIS"
],
"start": 16621,
"text": "This activity has continued uninterruptedly since the time of its inception, i.e., from AY 1971-72 onwards."
}
},
{
"from_name": null,
"id": "bf3831746b394713b7a80e767f51481c",
"to_name": null,
"type": null,
"value": {
"end": 16803,
"labels": [
"ANALYSIS"
],
"start": 16729,
"text": "The fact that the Assessee is a non-profit organisation is not in dispute."
}
},
{
"from_name": null,
"id": "1ff6f12797bb41b9a4d2d288cf7c4d0a",
"to_name": null,
"type": null,
"value": {
"end": 16953,
"labels": [
"ANALYSIS"
],
"start": 16804,
"text": "Its essential activities are administered by the BODs comprising of officers of the Government of India as well as GNCTD, in its ex officio capacity."
}
},
{
"from_name": null,
"id": "5d6cc52bc3794206bc88021cfed15ce9",
"to_name": null,
"type": null,
"value": {
"end": 17033,
"labels": [
"ANALYSIS"
],
"start": 16954,
"text": "The textbooks are provided by the Assessee to the students at subsidized rates."
}
},
{
"from_name": null,
"id": "1962cb7dd07d40c3ba0f8c95e64a65ac",
"to_name": null,
"type": null,
"value": {
"end": 17143,
"labels": [
"ANALYSIS"
],
"start": 17034,
"text": "Even the textbooks books, reading materials and school bags are being distributed free to deserving students."
}
},
{
"from_name": null,
"id": "4ef4b139cc514639b07369ce7f3d2eb3",
"to_name": null,
"type": null,
"value": {
"end": 17230,
"labels": [
"ANALYSIS"
],
"start": 17144,
"text": "The essential activity of the Assessee is connected with „education‟ and nothing else."
}
},
{
"from_name": null,
"id": "5f15d63974e44c958b41363d8fdc5bfa",
"to_name": null,
"type": null,
"value": {
"end": 17508,
"labels": [
"PRE_RELIED"
],
"start": 17230,
"text": "\n 21. In Sole Trustee, Loka Shikshana Trust v. CIT (supra), the Supreme Court explained as under: “The sense in which the word \"education\" has been used in section 2(15) is the systematic instruction, schooling or training given to the young in preparation for the work of life."
}
},
{
"from_name": null,
"id": "de9f339ea2624a51acd6c0ca6b66ecba",
"to_name": null,
"type": null,
"value": {
"end": 17597,
"labels": [
"PRE_RELIED"
],
"start": 17509,
"text": "It also connotes the whole course of scholastic instruction which a person has received."
}
},
{
"from_name": null,
"id": "aa4fbd9d433340559437b059c70c11d0",
"to_name": null,
"type": null,
"value": {
"end": 17750,
"labels": [
"PRE_RELIED"
],
"start": 17598,
"text": "The word \"education\" has not been used in that wide and extended sense, according to which every acquisition of further knowledge constitutes education."
}
},
{
"from_name": null,
"id": "c32e24e41fdb44279e5dff1bfcec2b88",
"to_name": null,
"type": null,
"value": {
"end": 17881,
"labels": [
"PRE_RELIED"
],
"start": 17751,
"text": "According to this wide and extended sense, travelling is education, because as a result of travelling you acquire fresh knowledge."
}
},
{
"from_name": null,
"id": "2a3c5bbb949b443fbf82a69dea098e2a",
"to_name": null,
"type": null,
"value": {
"end": 18017,
"labels": [
"PRE_RELIED"
],
"start": 17882,
"text": "Likewise, if you read newspapers and magazines, see pictures, visit art galleries, museums and zoos, you thereby add to your knowledge."
}
},
{
"from_name": null,
"id": "b35ff35a5aa24e65b7ce993a0c1d9b44",
"to_name": null,
"type": null,
"value": {
"end": 18189,
"labels": [
"PRE_RELIED"
],
"start": 18018,
"text": "Again, when you grow up and have dealings with other people, some of whom are not straight you learn by experience and thus add to your knowledge of the ways of the world."
}
},
{
"from_name": null,
"id": "d791f68642c147128f1371dad815ddb7",
"to_name": null,
"type": null,
"value": {
"end": 18309,
"labels": [
"PRE_RELIED"
],
"start": 18190,
"text": "If you are not careful, your wallet is liable to be stolen or you are liable to be cheated by some unscrupulous person."
}
},
{
"from_name": null,
"id": "095c18ebd6a24dcfb1e11350242a590a",
"to_name": null,
"type": null,
"value": {
"end": 18442,
"labels": [
"PRE_RELIED"
],
"start": 18310,
"text": "The thief who removes our wallet and the swindler who cheats you teach you a lesson and in the process make you wiser though poorer."
}
},
{
"from_name": null,
"id": "6cbb033cbc8d45a6a55cd827b58383d0",
"to_name": null,
"type": null,
"value": {
"end": 18588,
"labels": [
"PRE_RELIED"
],
"start": 18443,
"text": "If you visit a night club, you get acquainted with and add to your knowledge about some of the not much revealed realities and mysteries of life."
}
},
{
"from_name": null,
"id": "d3997456f0e945688c2e717712057df9",
"to_name": null,
"type": null,
"value": {
"end": 18648,
"labels": [
"PRE_RELIED"
],
"start": 18589,
"text": "All this in a way is education in the great school of life."
}
},
{
"from_name": null,
"id": "ee998d4e09954027a548d43f3a3d631d",
"to_name": null,
"type": null,
"value": {
"end": 18741,
"labels": [
"PRE_RELIED"
],
"start": 18649,
"text": "But that is not the sense in which the word \"education\" is used in clause (15) of Section 2."
}
},
{
"from_name": null,
"id": "278a73969205428c91cbe4f8038e6c9a",
"to_name": null,
"type": null,
"value": {
"end": 18901,
"labels": [
"PRE_RELIED"
],
"start": 18742,
"text": "What education connotes in that clause is the process of training and developing the knowledge, skill, mind and character of students by normal schooling.” 22."
}
},
{
"from_name": null,
"id": "d5bcdc95bf6849dcb5ebde0ef248bfcd",
"to_name": null,
"type": null,
"value": {
"end": 19056,
"labels": [
"ANALYSIS"
],
"start": 18902,
"text": "The preparation and distribution of text books certainly contributes to the process of training and development of the mind and the character of students."
}
},
{
"from_name": null,
"id": "0858c584f05c42cdba5a18e94f359540",
"to_name": null,
"type": null,
"value": {
"end": 19149,
"labels": [
"ANALYSIS"
],
"start": 19057,
"text": "There does not have to be a physical school for an institution to be eligible for exemption."
}
},
{
"from_name": null,
"id": "4519a7c4be4e4474bcc315eb57a09ad5",
"to_name": null,
"type": null,
"value": {
"end": 19184,
"labels": [
"ANALYSIS"
],
"start": 19150,
"text": "What is important is the activity."
}
},
{
"from_name": null,
"id": "fe98c2e29be9474e857c01b823aa70c1",
"to_name": null,
"type": null,
"value": {
"end": 19243,
"labels": [
"PRE_RELIED"
],
"start": 19185,
"text": "It has to be intrinsically connected to 'education'.\n 23.1"
}
},
{
"from_name": null,
"id": "54eb9e365ca6429b93034fb5a7c224d9",
"to_name": null,
"type": null,
"value": {
"end": 19368,
"labels": [
"PRE_RELIED"
],
"start": 19244,
"text": "In Assam State Text Book Production and Publication Corporation Limited v. CIT (supra), the facts were more or less similar."
}
},
{
"from_name": null,
"id": "430b7f3742124a578831f6c1803ea463",
"to_name": null,
"type": null,
"value": {
"end": 19557,
"labels": [
"PRE_RELIED"
],
"start": 19369,
"text": "There, the Assessee which was initially constituted as „Central Text Book Committee‟ changed its name to the „Assam Text Book Committee‟ with ten members nominated by the State Government."
}
},
{
"from_name": null,
"id": "fc178dd8973349c8ac33d4a6af2ab90e",
"to_name": null,
"type": null,
"value": {
"end": 19614,
"labels": [
"PRE_RELIED"
],
"start": 19558,
"text": "The Board was then converted into a corporation in 1972."
}
},
{
"from_name": null,
"id": "d6fb036191f242f7b6ccb32a4842cac9",
"to_name": null,
"type": null,
"value": {
"end": 19696,
"labels": [
"PRE_RELIED"
],
"start": 19615,
"text": "The entire share capital of the corporation was owned by the Government of Assam."
}
},
{
"from_name": null,
"id": "81df41ba61124588b1fe7a534ebbce16",
"to_name": null,
"type": null,
"value": {
"end": 19702,
"labels": [
"ANALYSIS"
],
"start": 19696,
"text": "\n 23.2"
}
},
{
"from_name": null,
"id": "558a63fae0724b969c7775350bf4e900",
"to_name": null,
"type": null,
"value": {
"end": 19853,
"labels": [
"ANALYSIS"
],
"start": 19703,
"text": "There again, the AO sought to deny exemption on the ground that the Corporation was not an „educational institution‟ under Section 10 (22) of the Act."
}
},
{
"from_name": null,
"id": "5c6f4e493b834879ba93b5ed7761b848",
"to_name": null,
"type": null,
"value": {
"end": 20045,
"labels": [
"ANALYSIS"
],
"start": 19854,
"text": "According to the AO, during the relevant AYs, the Assessee “had income exclusively from publication and selling of text books to the students” and, therefore, the exemption was not available."
}
},
{
"from_name": null,
"id": "5c17d1252c3042dda9b919f0f317ec42",
"to_name": null,
"type": null,
"value": {
"end": 20051,
"labels": [
"ANALYSIS"
],
"start": 20045,
"text": "\n 23.3"
}
},
{
"from_name": null,
"id": "5f678860a6174098be2f69a8aee8ba66",
"to_name": null,
"type": null,
"value": {
"end": 20312,
"labels": [
"ANALYSIS"
],
"start": 20052,
"text": "The High Court agreed with the AO and concluded that “the Assessee did not exist solely for educational purposes; that it did not solely impart education and that its income during the relevant assessment years was only from publishing and sale of text books.”"
}
},
{
"from_name": null,
"id": "87ebcfc0844d4328a435b57f5179f360",
"to_name": null,
"type": null,
"value": {
"end": 20378,
"labels": [
"ANALYSIS"
],
"start": 20313,
"text": "The High Court construed this as „profit-earning activity‟.\n 23.4"
}
},
{
"from_name": null,
"id": "0c402e319e494bb58985394f04cecbe4",
"to_name": null,
"type": null,
"value": {
"end": 20427,
"labels": [
"PRE_RELIED"
],
"start": 20379,
"text": "The Supreme Court disagreed with the High Court."
}
},
{
"from_name": null,
"id": "2191920f12024dd7acebd1ca39304aee",
"to_name": null,
"type": null,
"value": {
"end": 20524,
"labels": [
"PRE_RELIED"
],
"start": 20428,
"text": "It noted that “the aim of the said Corporation is to implement the State‟s policy on education”."
}
},
{
"from_name": null,
"id": "444f1e1498a64345a6bd8e9fdd742254",
"to_name": null,
"type": null,
"value": {
"end": 20728,
"labels": [
"PRE_RELIED"
],
"start": 20525,
"text": "It took note of the fact that in the year 1975, the CBDT had granted exemption under Section 10 (22) of the Act to the Tamil Nadu Text Books Society, which had performed activity similar to the Assessee."
}
},
{
"from_name": null,
"id": "5595e1c1fe65412d8536fb17f646c8df",
"to_name": null,
"type": null,
"value": {
"end": 20947,
"labels": [
"PRE_RELIED"
],
"start": 20729,
"text": "The Supreme Court also referred to the decision in Commissioner of Income Tax v.\n Rajasthan State Text Book Board (supra) as well as the decision of the Orissa High Court in Secondary Board of Education v. ITO (supra)."
}
},
{
"from_name": null,
"id": "10b76941e4364b17804bc22ef89af9a1",
"to_name": null,
"type": null,
"value": {
"end": 21231,
"labels": [
"PRE_RELIED"
],
"start": 20948,
"text": "It concurred with the approval of the following operative portion of the judgment in CIT v. Rajasthan State Text Book Board (supra): \"It is not disputed before us that the aims and objects of the Tamil Nadu Text Book Society and those of the Respondent-Assessee are almost identical."
}
},
{
"from_name": null,
"id": "83968be63dcb45a29d6ea756bbc7c2cf",
"to_name": null,
"type": null,
"value": {
"end": 21382,
"labels": [
"PRE_RELIED"
],
"start": 21232,
"text": "It is also not shown to us that the surplus amount, if any, of the Respondent-Assessee, is used for any other purpose or distributed to other members."
}
},
{
"from_name": null,
"id": "1af1a875bc0e41039e37cf2aaeb3f9b5",
"to_name": null,
"type": null,
"value": {
"end": 21555,
"labels": [
"PRE_RELIED"
],
"start": 21383,
"text": "The Commissioner of Income-tax (Appeals) as well as the Tribunal have noticed that even if some amount remains surplus, that is utilised only for the purposes of education."
}
},
{
"from_name": null,
"id": "e6b3033884da4aecbc7344c0c7dc8224",
"to_name": null,
"type": null,
"value": {
"end": 21849,
"labels": [
"PRE_RELIED"
],
"start": 21556,
"text": "Thus, having regard to the concurrent findings of fact recorded by the Commissioner of Income-tax (Appeals) and the Tribunal and also taking note of the letter of the Central Board of Direct Taxes itself, it is not possible for us to say that the order of the Tribunal is erroneous in any way."
}
},
{
"from_name": null,
"id": "8f5b711ee2724934af06f7d49e531cc5",
"to_name": null,
"type": null,
"value": {
"end": 21953,
"labels": [
"PRE_RELIED"
],
"start": 21850,
"text": "In this way, no question of law arises for consideration much less a substantial question of law.” 23.5"
}
},
{
"from_name": null,
"id": "abddefa09911437fa9b39a44b992d294",
"to_name": null,
"type": null,
"value": {
"end": 23075,
"labels": [
"PRE_RELIED"
],
"start": 21954,
"text": "The Supreme Court in Assam State Text Book Production and Publication Corporation Limited v. CIT (supra) concluded as under: “Following the judgement of the Rajasthan High Court, we are of the view that, in this case, the High Court, in its impugned judgement, has not considered the historical background in which the Corporation came to be constituted; secondly, the High Court ought to have considered the source of funding, the share-holding pattern and aspects, such as return on Investment; thirdly, it has not considered the letters issued by C.B.D.T. which are referred to in the judgement of the Rajasthan High Court granting benefit of exemption to various Board/Societies in the country under Section 10(22) of the Act; fourthly, it has failed to consider the judgements mentioned hereinabove; and lastly, it has failed to consider the letter of the Central Government dated 9th July, 1973, to the effect that all State- controlled Educational Committee(s)/Board(s) have been constituted to implement the educational policy of the State(s); consequently, they should be treated as educational institution.” 24."
}
},
{
"from_name": null,
"id": "bb0422fbfa614b24adab2d4c4668cbd5",
"to_name": null,
"type": null,
"value": {
"end": 23393,
"labels": [
"PRE_RELIED"
],
"start": 23076,
"text": "In Institute of Chartered Accountants of India v. DGIT (supra), the question that arose before this Court was whether the Petitioner-Institute could be denied exemption in view of the proviso to Section 2 (15) of the Act since it was engaged in activity of „advancement of any other object of general public utility.‟"
}
},
{
"from_name": null,
"id": "6005dc600b7443349e226b1601515760",
"to_name": null,
"type": null,
"value": {
"end": 23615,
"labels": [
"PRE_RELIED"
],
"start": 23394,
"text": "Although the Court held that the Petitioner could not be recognized as an educational institute, it accepted the plea that the Petitioner there was engaged in advancement of any other object of the general public utility."
}
},
{
"from_name": null,
"id": "dbd723e759434f9db23951104ef99d88",
"to_name": null,
"type": null,
"value": {
"end": 23793,
"labels": [
"PRE_RELIED"
],
"start": 23616,
"text": "The Court concluded that merely because there was profit generated as a result of the activity it could not be concluded that the „institute‟ should be disentitled to exemption."
}
},
{
"from_name": null,
"id": "264e1c2a5a594732a6d43131bff6d5ad",
"to_name": null,
"type": null,
"value": {
"end": 24053,
"labels": [
"PRE_RELIED"
],
"start": 23794,
"text": "It was held that “a very narrow view had been taken that the Institute was holding coaching classes and that this amounted to business” and that therefore, „the question whether the Institute carried on business had not been examined with proper perspective.”"
}
},
{
"from_name": null,
"id": "cfc55ac110e348ecb265e24e1b35abb5",
"to_name": null,
"type": null,
"value": {
"end": 24195,
"labels": [
"PRE_RELIED"
],
"start": 24054,
"text": "25. In Commissioner of Income Tax v. M.P. Rajya Pathya Pustak Nigam (2009) 226 CTR 497 (MP) the Madhya Pradesh High Court held as under: “17."
}
},
{
"from_name": null,
"id": "4269b9431e32470abc100e179ceb54e9",
"to_name": null,
"type": null,
"value": {
"end": 24376,
"labels": [
"PRE_RELIED"
],
"start": 24196,
"text": "From a perusal of the aforesaid decisions, it is lucid that for the entitlement for getting exemption for the assessment year, it is required to see the activities of the Assessee."
}
},
{
"from_name": null,
"id": "da95172728eb4356a72adf823b608127",
"to_name": null,
"type": null,
"value": {
"end": 24399,
"labels": [
"PRE_RELIED"
],
"start": 24377,
"text": "That is the acid test."
}
},
{
"from_name": null,
"id": "47a8e756d11048d4908a369ece6502af",
"to_name": null,
"type": null,
"value": {
"end": 24514,
"labels": [
"PRE_RELIED"
],
"start": 24400,
"text": "If the income/profit is applied for non-educational purposes, it is decided only at the end of the financial year."
}
},
{
"from_name": null,
"id": "0de156a1bed9484792d066e70920d7a6",
"to_name": null,
"type": null,
"value": {
"end": 24602,
"labels": [
"PRE_RELIED"
],
"start": 24515,
"text": "It is to be seen whether the Assessee is engaged in any kind of educational activities."
}
},
{
"from_name": null,
"id": "a68b44c3bc2f4c36a97d9572dbfa0810",
"to_name": null,
"type": null,
"value": {
"end": 24808,
"labels": [
"PRE_RELIED"
],
"start": 24603,
"text": "The authorities which we have referred to above have laid down the criteria under what circumstances an Assessee can claim exemption being involved in educational purposes and how the income is spent.” 26."
}
},
{
"from_name": null,
"id": "e3ae09918896404fb8537684f0055959",
"to_name": null,
"type": null,
"value": {
"end": 25133,
"labels": [
"PRE_RELIED"
],
"start": 24809,
"text": "In Council for the Indian School Certificate Examinations v. Director General of Income-Tax (Exemptions) (2014) 362 ITR 436 (Del) the Court held the Council for the Indian School Certificate Examinations to be an educational institution and quashed the order which denied it exemption under Section 10 (23c) (vi) of the Act."
}
},
{
"from_name": null,
"id": "6ff983d5026449bf8681bb8a86f453c2",
"to_name": null,
"type": null,
"value": {
"end": 25161,
"labels": [
"PRE_RELIED"
],
"start": 25134,
"text": "It was reiterated as under:"
}
},
{
"from_name": null,
"id": "9ec412f85a6e424fadac25b6960d24fe",
"to_name": null,
"type": null,
"value": {
"end": 25361,
"labels": [
"PRE_RELIED"
],
"start": 25162,
"text": "“It is, therefore, clear that courts have laid emphasis on the activity undertaken, while construing or deciding whether or not a particular institution can be regarded as an educational institution."
}
},
{
"from_name": null,
"id": "8ec9a802deac4a83973ff08e48c5bc2d",
"to_name": null,
"type": null,
"value": {
"end": 25526,
"labels": [
"PRE_RELIED"
],
"start": 25362,
"text": "The courts have repeatedly held that the holding of classes is not mandatory for an institution to qualify and to be treated as an educational institution.\n "
}
},
{
"from_name": null,
"id": "33027710c939441d8391f2f2d8b992f0",
"to_name": null,
"type": null,
"value": {
"end": 25603,
"labels": [
"ANALYSIS"
],
"start": 25526,
"text": "If the activity undertaken and engaged is educational, it is sufficient.” 27."
}
},
{
"from_name": null,
"id": "2b809e93b4c34ee68ee57bca7e754383",
"to_name": null,
"type": null,
"value": {
"end": 25768,
"labels": [
"ANALYSIS"
],
"start": 25604,
"text": "Reverting to the case on hand, the Court finds that what the ITAT has held in the impugned order is contrary to the settled law as explained in the above decisions."
}
},
{
"from_name": null,
"id": "edb9aa4efa204eecba43445a15b942c9",
"to_name": null,
"type": null,
"value": {
"end": 25983,
"labels": [
"ANALYSIS"
],
"start": 25769,
"text": "The ITAT came to the erroneous conclusion that merely because the Assessee had generated profits out of the activity of publishing and selling of school text books it ceased carrying on the activity of „education.‟"
}
},
{
"from_name": null,
"id": "b286fd1b6dfa49c1923a598d4d694849",
"to_name": null,
"type": null,
"value": {
"end": 26166,
"labels": [
"ANALYSIS"
],
"start": 25984,
"text": "The ITAT failed to address the issue in the background of the setting up of the Assessee, its control and management and the sources of its income and the pattern of its expenditure."
}
},
{
"from_name": null,
"id": "3a32743c68e448fe80561395c76d3d2f",
"to_name": null,
"type": null,
"value": {
"end": 26279,
"labels": [
"ANALYSIS"
],
"start": 26167,
"text": "The ITAT failed to notice that the surplus amount was again ploughed back into the main activity of 'education'."
}
},
{
"from_name": null,
"id": "83eaa1c359cc491ca7b8e8c63c57d3ab",
"to_name": null,
"type": null,
"value": {
"end": 26446,
"labels": [
"ANALYSIS"
],
"start": 26280,
"text": "The question to be asked was whether the activity of the Assessee contributed to the training and development of the knowledge, skill, mind and character of students?"
}
},
{
"from_name": null,
"id": "3df4dbd66c6d4ac4b3b6b073e840998f",
"to_name": null,
"type": null,
"value": {
"end": 26589,
"labels": [
"ANALYSIS"
],
"start": 26447,
"text": "In the considered view of the Court, the answer to that question had to be, in the facts and circumstances outlined above, in the affirmative."
}
},
{
"from_name": null,
"id": "358dae0969af4a5d8830b0e24d754177",
"to_name": null,
"type": null,
"value": {
"end": 26790,
"labels": [
"ANALYSIS"
],
"start": 26589,
"text": "\n 28. The Court, accordingly, concludes that the ITAT was incorrect in setting aside the order passed by the CIT (A) and in denying exemption to the Assessee under Section 11 and Section 12 of the Act."
}
},
{
"from_name": null,
"id": "5eb2b086821b4d288b9af6505fd12860",
"to_name": null,
"type": null,
"value": {
"end": 27071,
"labels": [
"ANALYSIS"
],
"start": 26791,
"text": "The ITAT erred in holding that the activities carried out by the Assessee fell under the 4th limb of Section 2 (15) of the Act, i.e., „the advancement of any other object of general public utility‟ and that its activities were not solely for purpose of advancement of „education‟."
}
},
{
"from_name": null,
"id": "8629f0a98933494788bf25f59a507f72",
"to_name": null,
"type": null,
"value": {
"end": 27230,
"labels": [
"ANALYSIS"
],
"start": 27072,
"text": "Questions (i) and (ii) framed by the Court are, therefore, answered in the negative, i.e., in favour of the Assessee and against the Revenue.\n Consistency 29."
}
},
{
"from_name": null,
"id": "e4509783ade44b768b13a1b6eb5b10af",
"to_name": null,
"type": null,
"value": {
"end": 27425,
"labels": [
"ANALYSIS"
],
"start": 27231,
"text": "On the issue of consistency, the Court notes that in the present case, continuously from AYs 1971-72 till 2005-06, exemption had been granted to the Assessee under Sections 11 and 12 of the Act."
}
},
{
"from_name": null,
"id": "b48662089fa442ea8e3f0e6845eda7dd",
"to_name": null,
"type": null,
"value": {
"end": 27598,
"labels": [
"ANALYSIS"
],
"start": 27426,
"text": "When for AYs 1975-76 and 1976-77 the AO sought to take a different view, the ITAT reversed that view and the decision of the ITAT was not challenged further by the Revenue."
}
},
{
"from_name": null,
"id": "3f5064d0ce624dc7b375e5f39df88b24",
"to_name": null,
"type": null,
"value": {
"end": 27846,
"labels": [
"ANALYSIS"
],
"start": 27599,
"text": "Apart from the fact that the Assessee was earning more profits from its essential activity of education, there was no change in the circumstances concerning the said activity since AY 2005-06 to warrant a different approach in the AYs in question."
}
},
{
"from_name": null,
"id": "7d833bf3d5d94fdd84896d1b4cae5c0d",
"to_name": null,
"type": null,
"value": {
"end": 28109,
"labels": [
"PRE_RELIED"
],
"start": 27846,
"text": "\n 30. In Parashuram Pottery Works Ltd. v. Income Tax Officer (1977) 106 ITR 1 (SC) the Supreme Court explained the rule of consistency in tax matters as under: \"We are aware of the fact that strictly speaking res judicata does not apply to income-tax proceedings."
}
},
{
"from_name": null,
"id": "d0bc9cfd627c4c03914c56b17ce8446d",
"to_name": null,
"type": null,
"value": {
"end": 28520,
"labels": [
"PRE_RELIED"
],
"start": 28110,
"text": "Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year."
}
},
{
"from_name": null,
"id": "554dccf21e5e48d28784fc136be0e9af",
"to_name": null,
"type": null,
"value": {
"end": 28928,
"labels": [
"PRE_RELIED"
],
"start": 28520,
"text": "\n \"On these reasonings in the absence of any material change justifying the Revenue to take a different view of the matter - and if there was no change it was in support of the Assessee - we do not think the question should have been reopened and contrary to what had been decided by the Commissioner of Income Tax in the earlier proceedings, a different and contradictory stand should have been taken.\"\n 31."
}
},
{
"from_name": null,
"id": "cd651fabfc5449a49ad7364e0abd4152",
"to_name": null,
"type": null,
"value": {
"end": 29055,
"labels": [
"PRE_RELIED"
],
"start": 28929,
"text": "In Radhasoami Satsang Saomi Bagh v. Commissioner of Income Tax (supra), the Supreme Court reiterated the above legal position."
}
},
{
"from_name": null,
"id": "a7922e0f815c41c282b6e026f5b5d541",
"to_name": null,
"type": null,
"value": {
"end": 29483,
"labels": [
"PRE_RELIED"
],
"start": 29056,
"text": "This time it quoted with approval the following extract from Hoystead v. Commissioner of Taxation 1926 AC 155 (PC): \"Parties are not permitted to begin fresh litigation because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the court of the legal result either of the construction of the documents or the weight of certain circumstances."
}
},
{
"from_name": null,
"id": "4e24457df2ea4045ad0a1ec220fcf6f6",
"to_name": null,
"type": null,
"value": {
"end": 29579,
"labels": [
"PRE_RELIED"
],
"start": 29484,
"text": "If this were permitted, litigation would have no end, except when legal ingenuity is exhausted."
}
},
{
"from_name": null,
"id": "f945f99506ff4df6ac3e6d26cbcf1374",
"to_name": null,
"type": null,
"value": {
"end": 29694,
"labels": [
"PRE_RELIED"
],
"start": 29580,
"text": "It is a principle of law that this cannot be permitted and there is abundant authority reiterating that principle."
}
},
{
"from_name": null,
"id": "91596e7d475d47ddacfb9d79ceebe0bf",
"to_name": null,
"type": null,
"value": {
"end": 29932,
"labels": [
"PRE_RELIED"
],
"start": 29695,
"text": "Thirdly, the same principle, namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the Plaintiff and traversable by the Defendant, has not been traversed."
}
},
{
"from_name": null,
"id": "4e5fec48e0ad4c35ab50222f66b9899a",
"to_name": null,
"type": null,
"value": {
"end": 30114,
"labels": [
"PRE_RELIED"
],
"start": 29933,
"text": "In that case also a Defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken.\"\n 32."
}
},
{
"from_name": null,
"id": "706725f47c294908aa5f851786daab66",
"to_name": null,
"type": null,
"value": {
"end": 30222,
"labels": [
"PRE_RELIED"
],
"start": 30115,
"text": "Recently, in CIT v. Excel Industries (supra), the above legal position was reaffirmed by the Supreme Court."
}
},
{
"from_name": null,
"id": "f84c2cac4c2b4d44912189fa9b726bf7",
"to_name": null,
"type": null,
"value": {
"end": 30266,
"labels": [
"PRE_RELIED"
],
"start": 30223,
"text": "On the facts of that case it was held: \"31."
}
},
{
"from_name": null,
"id": "c9dd02341ad84d168e02fd55fbeef7c7",
"to_name": null,
"type": null,
"value": {
"end": 30570,
"labels": [
"PRE_RELIED"
],
"start": 30267,
"text": "It appears from the record that in several assessment years, the Revenue accepted the order of the Tribunal in favour of the Assessee and did not pursue the matter any further but in respect of some assessment years the matter was taken up in appeal before the Bombay High Court but without any success."
}
},
{
"from_name": null,
"id": "2f35297f558147ac821b48395c1aa592",
"to_name": null,
"type": null,
"value": {
"end": 30758,
"labels": [
"ANALYSIS"
],
"start": 30571,
"text": "That being so, the Revenue cannot be allowed to flip-flop on the issue and it ought let the matter rest rather than spend the tax payers' money in pursuing litigation for the sake of it.\""
}
},
{
"from_name": null,
"id": "4ffba6934e9f400ea5255c78b6897d90",
"to_name": null,
"type": null,
"value": {
"end": 30851,
"labels": [
"RATIO"
],
"start": 30758,
"text": "\n 33. The decisions relied upon by Mr. Kaushik appear to have turned on their peculiar facts."
}
},
{
"from_name": null,
"id": "5bdb60a9aa164005907b1f63cd199f0c",
"to_name": null,
"type": null,
"value": {
"end": 31088,
"labels": [
"RATIO"
],
"start": 30852,
"text": "The question that arose was whether merely because the Revenue did not file appeals against the decisions against it in some of the AYs, it could be precluded from challenging the decisions on the issue against it in the subsequent AYs."
}
},
{
"from_name": null,
"id": "1b57eb6836ad4265afcebae7a77bf272",
"to_name": null,
"type": null,
"value": {
"end": 31122,
"labels": [
"RATIO"
],
"start": 31089,
"text": "The facts here are stark, though."
}
},
{
"from_name": null,
"id": "7aad25597e5542b9ad830b6d02e1e40a",
"to_name": null,
"type": null,
"value": {
"end": 31349,
"labels": [
"RATIO"
],
"start": 31123,
"text": "Having adopted a consistent stand for over 34 years, and with there being no change in the circumstances, there was no justification for the Revenue to take a different view in the matter only because it was possible to do so."
}
},
{
"from_name": null,
"id": "53d0ae9e582849908f05b6ac96821c33",
"to_name": null,
"type": null,
"value": {
"end": 31480,
"labels": [
"RPC"
],
"start": 31349,
"text": "\n 34. Question (iii) framed by the Court is also answered in the negative, i.e., in favour of the Assessee and against the Revenue."
}
},
{
"from_name": null,
"id": "51e4a25062584207b2a200f515424e5a",
"to_name": null,
"type": null,
"value": {
"end": 31616,
"labels": [
"RPC"
],
"start": 31480,
"text": "\n 35. The impugned common order dated 23rd April 2015 of the ITAT for the AYs 2006-07, 2007-08, 2008-09 and 2009-10 is hereby set aside."
}
},
{
"from_name": null,
"id": "f7bdb24872864700b182cf0e900a9694",
"to_name": null,
"type": null,
"value": {
"end": 31695,
"labels": [
"RPC"
],
"start": 31617,
"text": "The appeals are allowed but, in the circumstances, with no orders as to costs."
}
},
{
"from_name": null,
"id": "e670ed0c84204e07a5f1a1c9681ea32f",
"to_name": null,
"type": null,
"value": {
"end": 31754,
"labels": [
"RPC"
],
"start": 31696,
"text": "CM No. 24170/2015 in ITA No. 811/2015 is also disposed of."
}
},
{
"from_name": null,
"id": "b9866e0005754739af55631e8f1a6189",
"to_name": null,
"type": null,
"value": {
"end": 31807,
"labels": [
"NONE"
],
"start": 31754,
"text": "\n S. MURALIDHAR, J CHANDER SHEKHAR, J MAY 03, 2017/Rm"
}
}
]
}
] | 4,194 | {
"text": "$~\n* IN THE HIGH COURT OF DELHI AT NEW DELHI\n32\n+ ITA 807/2015\n\n DELHI BUREAU OF TEXT BOOKS ..... Appellant\n Through: Ms. Prem Lata Bansal, Senior Advocate\n with Ms. Nidhi Raman and Ms. Isha Khanna,\n Advocates along with Mr. Ashok Kumar,\n Accounts Officer, DBTB\n\n versus\n\n DIRECTOR OF INCOME TAX (E) ..... Respondent\n Through: Mr. Rahul Kaushik, Senior standing\n counsel.\n\n With\n33\n+ ITA 810/2015\n\n DELHI BUREAU OF TEXT BOOKS ..... Appellant\n Through: Ms. Prem Lata Bansal, Senior Advocate\n with Ms. Nidhi Raman and Ms. Isha Khanna,\n Advocates along with Mr. Ashok Kumar,\n Accounts Officer, DBTB\n\n versus\n\n DIRECTOR OF INCOME TAX (E) ..... Respondent\n Through: Mr. Rahul Kaushik, Senior standing\n counsel.\n\n With\n34\n+ ITA 811/2015 & CM 24170/2015\n\n DELHI BUREAU OF TEXT BOOKS ..... Appellant\n\n\n\n\n\n Through: Ms. Prem Lata Bansal, Senior Advocate\n with Ms. Nidhi Raman and Ms. Isha Khanna,\n Advocates along with Mr. Ashok Kumar,\n Accounts Officer, DBTB\n\n versus\n\n DIRECTOR OF INCOME TAX (E) ..... Respondent\n Through: Mr. Rahul Kaushik, Senior standing\n counsel.\n\n And\n35\n+ ITA 812/2015\n\n DELHI BUREAU OF TEXT BOOKS ..... Appellant\n Through: Ms. Prem Lata Bansal, Senior Advocate\n with Ms. Nidhi Raman and Ms. Isha Khanna,\n Advocates along with Mr. Ashok Kumar,\n Accounts Officer, DBTB\n\n versus\n\n DIRECTOR OF INCOME TAX (E) ..... Respondent\n Through: Mr. Rahul Kaushik, Senior standing\n counsel.\n CORAM:\n JUSTICE S. MURALIDHAR\n JUSTICE CHANDER SHEKHAR\n\n ORDER\n% 03.05.2017 Dr. S. Muralidhar, J.\n1. These four appeals by the Delhi Bureau of Text Books („the Assessee') under Section 260-A of the Income Tax Act, 1961 („Act‟) are directed against the common impugned order dated 23 rd April 2015 passed by the Income Tax Appellate Tribunal („ITAT‟) in ITA Nos. 2362/Del/2010, 2363/Del/2010, 3796/Del/2011 and 56/Del/2013 for the Assessment Years („AYs‟) 2006-07, 2007-08, 2008-09 and 2009-10 respectively.\n Questions of law 2. While admitting these appeals on 16th December 2015 this Court framed the following questions of law: (i) Whether ITAT was correct in law and on facts in setting aside the order passed by CIT (A) and thereby denying exemption to the Assessee under Sections 11 and 12 of the Income Tax Act?\n (ii) Whether the ITAT was correct in law and on facts in holding that the activities carried out by the Assessee fall under the 4 th limb i.e., “the advancement of any other object of General Public Utility” of the definition of the term “charitable purpose” under Section 2 (15) of the Act and not under the 2nd limb “education”?\n (iii) Whether ITAT could re-examine the issue already decided by it vide order dated 30.09.1980 in favour of the Assessee for AY 1975- 76 and 1976-77, without referring the same to the large Bench particularly when there is no change in the activities carried out by the Assessee throughout these years?\n Background facts 3. The background facts are that the Assessee is a society registered under the Societies Registration Act, 1860. It was set up by the Ministry of Education, Government of India as well as by the Government of NCT of Delhi („GNCTD‟). It was registered on 28th March 1970. The Assessee was set up to ensure timely supply of prescribed text books at fair prices to school students and to improve the quality of primary and secondary school education in Delhi schools.\n 4. The Assessee was registered as charitable under Section 12A (a) of the Act by an order dated 27th December 1973. The Assessee is attached to the Directorate of Education, GNCTD. Its activities are administered by the Board of Directors („BoD‟) comprising of seven officers of the Directorate of Education in an ex-officio capacity and two members nominated by the Lieutenant Governor of Delhi. The Director of Education is the Chairman of the Assessee Society.\n 5. The Assessee is engaged in printing and publication of text books for Class I to VIII of Government Schools, Municipal Corporation of Delhi („MCD‟) schools, New Delhi Municipal Council („NDMC‟) Schools and Delhi Cantonment Schools. The books are provided at subsidized rates by the Assessee. There is nominal profit to school students and wholesale dealers. The Assessee is also distributing free books, reading material and school bags to needy students.\n 6. Para 4 of the Memorandum of the Assessee Society sets out its aims and objectives and reads as under: 1) To aid and promote the advancement of education particularly elementary and secondary education through production of high quality text books and other instructional material such as teachers hand-books, work books etc., 2) To arrange for printing, publishing, stocking and distribution of approved text books and other teaching learning materials, 3) To encourage through training or otherwise authors and writers of text books and other teaching material, 4) To undertake evaluation and research for improvement of curricula, text books and other instructional material, 5) To make available at subsidized cost or free of cost or in some other suitable manner text books and other learning material to the children of economically weak families and similarly to make teaching material and aid available to teachers at subsidized cost or free of cost or in other suitable manner so as to promote better teaching in Delhi Schools with the prior approval of Delhi Admin, and 6) To obtain manuscripts of subject text books prepared by the Text Book Branch of the Directorate of Education on such terms and conditions as may be determined by the Director of Education for printing, publishing and distribution in the Union Territory of Delhi.\n 7. Rule 17 of the Rules and Regulations governing the Assessee/Society states thus: “(1) The income of the Society derived from the Government Loans or sale of books or other sources shall be applied only towards the promotions of its objectives and Society, as laid down under this “Memorandum of Association.” Past tax history 8. The Assessee's income was exempt from tax under Section 11 of the Act during the AYs 1971-72 to 2005-06. When in AYs 1975-76 and 1976-77, the benefit of exemption from payment of income tax was denied by the concerned Assessing Officer („AO‟), the Assessee went in appeal before the Commissioner of Income Tax (Appeals) [„CIT (A)‟] who allowed the appeal and restored the exemption. The Revenue‟s appeals against the said order were dismissed by the ITAT vide order dated 30th September 1980 in ITA Nos.1239/Del/1979 & 4448/Del/1979. Those orders of the ITAT for AYs 1975-76 and 1976-77 attained finality. The net result is that continuously from AY 1971-72 to AY 2005-06 the Assessee has had the benefit of exemption from payment of income tax.\n Order of the AO for the AYs in question 9. For AY 2006-07, the Assessee filed its return of income on 31 st October 2007 declaring „Nil‟ income claiming exemption under Sections 11 and 12 of the Act. The AO called upon the Assessee to explain why the activity of publication and sale/purchase of books should not be treated as business activity. Secondly, the Assessee was asked whether it was maintaining books of accounts as mandated by Section 11 (4A) of the Act. The approach of the AO was to consider the Assessee as a „General Public Utility.‟ Referring to the decision of the Supreme Court in Sole Trustee Loka Shikshana Trust v. Commissioner of Income Tax (1975) 101 ITR 234 (SC), the AO observed that since the Assessee was earning huge profit margins of about 35.15%, the activity of publication and sale of books could not be said to be a „charitable activity‟. Accordingly, the AO treated the income from the sale and publication of books as taxable for each of the AYs in question.\n Order of the CIT (A) 10. Aggrieved by the above order, the Assessee filed appeals before the CIT (A) who by order dated 31st March 2010 reversed the AO‟s decision. The CIT (A) noted that the AO had not returned a finding that the Assessee‟s activities were beyond the aims and objectives of the Society as per its Memorandum of Association & Rules. Once registration had been granted under Section 12 A of the Act, the AO could not re-examine the issue whether what was being carried on by the Assessee was a charitable activity under Section 2 (15) of the Act. The CIT (A) referred to the decision in ACIT v. Surat City Gymkhana (2008) 300 ITR 214 (SC).\n 11. The CIT (A) further held that generation of income is no test in itself for determining the charitable nature of the activities. Earning of a surplus in working out the charitable purpose would not place the entity outside the purview of Section 2 (15) read with Sections 11 and 12 of the Act. The CIT (A) referred to the decisions in ACIT v. Surat Art Silk Cloth Manufacturers Association (1980) 2 SCC 31, Aditanar Education Institution v. ACIT (1997) 3 SCC 346 and ACIT v. Thanthi Trust (2001) 247 ITR 785 (SC).\n 12. For the subsequent AYs, the AO continued to deny the exemption by the assessment orders dated 26th November 2010, 15th December 2011 and 31st December 2008 for the AYs 2008-09, 2009-10, 2006-07. The CIT (A) by the corresponding orders dated 30th June 2011, 18th October 2012 and 22nd February 2010 allowed the Assessee's appeals and restored the exemption.\n Impugned order of the ITAT 13. Aggrieved by the above orders of the CIT (A), the Revenue went in appeal before the ITAT which by a common order allowed the appeals. The impugned order of the ITAT may be summarised as under: (a) After perusing the income and expenditure statement for the AYs in question, the ITAT observed that the AO had rightly held that the activity of the Assessee was prima facie in the nature of a business activity of sale and purchase of books. The books had been sold at a huge profit margin about 40% which showed that the Assessee was engaged in the activities of earning profit. Accordingly, it was held that the activities of the Assessee society are in the nature of business and not charitable purpose. The decisions in Sole Trustee, Loka Shikshana Trust v. CIT (supra) and Oxford University Press v.\n Commissioner of Income Tax (2001) 247 ITR 658 (SC) were referred to.\n (b) Even if the registration is granted to the Assessee under Section 12 AA of the Act, the AO was not precluded from examining whether the Assessee complied with the requirement of Section 11 of the Act in every AY.\n (c) The ITAT held that its earlier order dated 30th September 1980 for AYs 1975-76 and 1976-77 had not considered the income and expenditure statements filed by the Assessee for those AYs and other relevant evidence. It was observed that the facts on hand were different. It further held that the Assessee has not maintained separate books of accounts for its activities of sale and purchase of books for the AY in question and thus has violated the provisions of Section 11 (4A) of the Act. The Assessee had made accumulation in excess and “without specifying any purpose” and “was not wholly for the charitable purpose.” Reliance was placed on the decision of the Supreme Court in Nachimuthu Industrial Association v. CIT (1999) 235 ITR 190 (SC).\n Submissions on behalf of the Assessee 14. Ms. Prem Lata Bansal, learned Senior counsel for the Assessee, submitted that the ITAT erred in not appreciating the law governing the grant of exemption to a charitable institution as defined under Section 2 (15) read with Sections 11 (1) and 12 of the Act. Ms. Bansal submitted that in terms of the law explained in Sole Trustee, Loka Shikshana Trust v. CIT (supra), the Assessee‟s income was derived from activity that constituted „charitable purpose‟ which included „education‟. Ms. Bansal submitted that the ITAT had erred in affirming the view of the AO that the income was from „trade, commerce or business‟ and therefore, within the ambit of „general public utility‟. Ms. Bansal referred to the decision in Assam Text Book Production & Publication Corporation Limited v. CIT (2009) 319 ITR 317 (SC) which had reversed the view taken by the Gauhati High Court which, incidentally, was followed by the ITAT in the present case. Ms.\nBansal also placed reliance on the decisions in CIT v. Rajasthan State Text Book Board (2000) 244 CTR 667 (Raj), Secondary Board of Education v.\nITO (1972) 86 ITR 408 (Ori).\n 15. Referring to the decision of the Supreme Court in ACIT v. Surat City Jimkhana (supra) Ms. Bansal submitted that once the registration of a trust under Section 12 A of the IT Act is given the AO cannot thereafter make a further probe into the purposes of the entity. She also referred to the decision in Hiralal Bhagwati v. CIT (2000) 246 ITR 188 (Guj). Ms. Bansal pointed out that the legal position has been discussed extensively in Institution of Chartered Accountants of India v. Director General of Income Tax (Exemptions) (2012) 347 ITR 99 (Del) where the dominant function of the institution was examined in order to determine whether its earnings were for charitable purposes.\n 16. Finally, Ms. Bansal submitted that the rule of consistency should also apply. She pointed out that from AY 1974-75 till 2005-06, exemption has been granted to the Appellant and with absolutely no change of circumstances there was no occasion for a different approach to be taken for the AYs in question. She also placed reliance on the decisions of the Supreme Court in CIT v. Excel Industries (2013) 262 CTR 261 (SC) and Radhasoami Satsang Saomi Bagh, Agra v. Commissioner of Income Tax (1992) 193 ITR 321 (SC) Submissions on behalf of the Revenue 17. Countering the above submissions, Mr. Rahul Kaushik, learned Senior standing counsel for the Revenue, sought to support the impugned order of the ITAT by pointing out that the level of profits earned by the Appellant during the AYs in question took its activity outside the ambit of a „charitable purpose‟. He submitted that the ITAT was justified in negativing the plea by relying on the decision in Sole Trustee, Loka Shikshana Trust v. CIT (supra). While Mr. Kaushik was unable to dispute that the activity of the Appellant involved „education‟, he maintained that the Appellant did not satisfy the requirement of the proviso under Section 2 (15) of the Act viz., that the activity should not be related to „trade, commerce or business‟.\n 18. As regards the submission regarding the issue for grant of registration under Section 12A of the Act precluding the AO from re-examining the question of eligibility of the Assessee to examine, Mr. Kaushik referred to the case law referred to by the ITAT and submitted that the AO was within his rights to again examine whether those conditions were satisfied in every one of the AYs in question.\n 19. Lastly, it was submitted by Mr. Kaushik that every AY was separate.\nMerely because in an earlier AY another point of view was expressed would not preclude the AO from re-visiting the issue if he found that the facts and circumstances warranted it. He placed reliance on the decisions in C.K.\nGangadharan v. Commissioner of Income Tax, Cochin (2008) 8 SCC 739 and Commissioner of Central Excise, Raipur v. Hira Cement (2006) 2 SCC 439.\n Is the Assessee engaged in the activity of 'education'?\n20. The Court first considers the question of the interpretation placed on the word „education‟ occurring in Section 2 (15) of the Act. The exclusive activity of the Assessee is the publication and printing of text books and their distribution to Government schools and schools of the MCD, NDMC, etc. This activity has continued uninterruptedly since the time of its inception, i.e., from AY 1971-72 onwards. The fact that the Assessee is a non-profit organisation is not in dispute. Its essential activities are administered by the BODs comprising of officers of the Government of India as well as GNCTD, in its ex officio capacity. The textbooks are provided by the Assessee to the students at subsidized rates. Even the textbooks books, reading materials and school bags are being distributed free to deserving students. The essential activity of the Assessee is connected with „education‟ and nothing else.\n 21. In Sole Trustee, Loka Shikshana Trust v. CIT (supra), the Supreme Court explained as under: “The sense in which the word \"education\" has been used in section 2(15) is the systematic instruction, schooling or training given to the young in preparation for the work of life. It also connotes the whole course of scholastic instruction which a person has received. The word \"education\" has not been used in that wide and extended sense, according to which every acquisition of further knowledge constitutes education. According to this wide and extended sense, travelling is education, because as a result of travelling you acquire fresh knowledge. Likewise, if you read newspapers and magazines, see pictures, visit art galleries, museums and zoos, you thereby add to your knowledge. Again, when you grow up and have dealings with other people, some of whom are not straight you learn by experience and thus add to your knowledge of the ways of the world. If you are not careful, your wallet is liable to be stolen or you are liable to be cheated by some unscrupulous person. The thief who removes our wallet and the swindler who cheats you teach you a lesson and in the process make you wiser though poorer. If you visit a night club, you get acquainted with and add to your knowledge about some of the not much revealed realities and mysteries of life. All this in a way is education in the great school of life. But that is not the sense in which the word \"education\" is used in clause (15) of Section 2. What education connotes in that clause is the process of training and developing the knowledge, skill, mind and character of students by normal schooling.” 22. The preparation and distribution of text books certainly contributes to the process of training and development of the mind and the character of students. There does not have to be a physical school for an institution to be eligible for exemption. What is important is the activity. It has to be intrinsically connected to 'education'.\n 23.1 In Assam State Text Book Production and Publication Corporation Limited v. CIT (supra), the facts were more or less similar. There, the Assessee which was initially constituted as „Central Text Book Committee‟ changed its name to the „Assam Text Book Committee‟ with ten members nominated by the State Government. The Board was then converted into a corporation in 1972. The entire share capital of the corporation was owned by the Government of Assam.\n 23.2 There again, the AO sought to deny exemption on the ground that the Corporation was not an „educational institution‟ under Section 10 (22) of the Act. According to the AO, during the relevant AYs, the Assessee “had income exclusively from publication and selling of text books to the students” and, therefore, the exemption was not available.\n 23.3 The High Court agreed with the AO and concluded that “the Assessee did not exist solely for educational purposes; that it did not solely impart education and that its income during the relevant assessment years was only from publishing and sale of text books.” The High Court construed this as „profit-earning activity‟.\n 23.4 The Supreme Court disagreed with the High Court. It noted that “the aim of the said Corporation is to implement the State‟s policy on education”.\nIt took note of the fact that in the year 1975, the CBDT had granted exemption under Section 10 (22) of the Act to the Tamil Nadu Text Books Society, which had performed activity similar to the Assessee. The Supreme Court also referred to the decision in Commissioner of Income Tax v.\n Rajasthan State Text Book Board (supra) as well as the decision of the Orissa High Court in Secondary Board of Education v. ITO (supra). It concurred with the approval of the following operative portion of the judgment in CIT v. Rajasthan State Text Book Board (supra): \"It is not disputed before us that the aims and objects of the Tamil Nadu Text Book Society and those of the Respondent-Assessee are almost identical. It is also not shown to us that the surplus amount, if any, of the Respondent-Assessee, is used for any other purpose or distributed to other members. The Commissioner of Income-tax (Appeals) as well as the Tribunal have noticed that even if some amount remains surplus, that is utilised only for the purposes of education. Thus, having regard to the concurrent findings of fact recorded by the Commissioner of Income-tax (Appeals) and the Tribunal and also taking note of the letter of the Central Board of Direct Taxes itself, it is not possible for us to say that the order of the Tribunal is erroneous in any way. In this way, no question of law arises for consideration much less a substantial question of law.” 23.5 The Supreme Court in Assam State Text Book Production and Publication Corporation Limited v. CIT (supra) concluded as under: “Following the judgement of the Rajasthan High Court, we are of the view that, in this case, the High Court, in its impugned judgement, has not considered the historical background in which the Corporation came to be constituted; secondly, the High Court ought to have considered the source of funding, the share-holding pattern and aspects, such as return on Investment; thirdly, it has not considered the letters issued by C.B.D.T. which are referred to in the judgement of the Rajasthan High Court granting benefit of exemption to various Board/Societies in the country under Section 10(22) of the Act; fourthly, it has failed to consider the judgements mentioned hereinabove; and lastly, it has failed to consider the letter of the Central Government dated 9th July, 1973, to the effect that all State- controlled Educational Committee(s)/Board(s) have been constituted to implement the educational policy of the State(s); consequently, they should be treated as educational institution.” 24. In Institute of Chartered Accountants of India v. DGIT (supra), the question that arose before this Court was whether the Petitioner-Institute could be denied exemption in view of the proviso to Section 2 (15) of the Act since it was engaged in activity of „advancement of any other object of general public utility.‟ Although the Court held that the Petitioner could not be recognized as an educational institute, it accepted the plea that the Petitioner there was engaged in advancement of any other object of the general public utility. The Court concluded that merely because there was profit generated as a result of the activity it could not be concluded that the „institute‟ should be disentitled to exemption. It was held that “a very narrow view had been taken that the Institute was holding coaching classes and that this amounted to business” and that therefore, „the question whether the Institute carried on business had not been examined with proper perspective.” 25. In Commissioner of Income Tax v. M.P. Rajya Pathya Pustak Nigam (2009) 226 CTR 497 (MP) the Madhya Pradesh High Court held as under: “17. From a perusal of the aforesaid decisions, it is lucid that for the entitlement for getting exemption for the assessment year, it is required to see the activities of the Assessee. That is the acid test. If the income/profit is applied for non-educational purposes, it is decided only at the end of the financial year. It is to be seen whether the Assessee is engaged in any kind of educational activities. The authorities which we have referred to above have laid down the criteria under what circumstances an Assessee can claim exemption being involved in educational purposes and how the income is spent.” 26. In Council for the Indian School Certificate Examinations v. Director General of Income-Tax (Exemptions) (2014) 362 ITR 436 (Del) the Court held the Council for the Indian School Certificate Examinations to be an educational institution and quashed the order which denied it exemption under Section 10 (23c) (vi) of the Act. It was reiterated as under: “It is, therefore, clear that courts have laid emphasis on the activity undertaken, while construing or deciding whether or not a particular institution can be regarded as an educational institution. The courts have repeatedly held that the holding of classes is not mandatory for an institution to qualify and to be treated as an educational institution.\n If the activity undertaken and engaged is educational, it is sufficient.” 27. Reverting to the case on hand, the Court finds that what the ITAT has held in the impugned order is contrary to the settled law as explained in the above decisions. The ITAT came to the erroneous conclusion that merely because the Assessee had generated profits out of the activity of publishing and selling of school text books it ceased carrying on the activity of „education.‟ The ITAT failed to address the issue in the background of the setting up of the Assessee, its control and management and the sources of its income and the pattern of its expenditure. The ITAT failed to notice that the surplus amount was again ploughed back into the main activity of 'education'. The question to be asked was whether the activity of the Assessee contributed to the training and development of the knowledge, skill, mind and character of students? In the considered view of the Court, the answer to that question had to be, in the facts and circumstances outlined above, in the affirmative.\n 28. The Court, accordingly, concludes that the ITAT was incorrect in setting aside the order passed by the CIT (A) and in denying exemption to the Assessee under Section 11 and Section 12 of the Act. The ITAT erred in holding that the activities carried out by the Assessee fell under the 4th limb of Section 2 (15) of the Act, i.e., „the advancement of any other object of general public utility‟ and that its activities were not solely for purpose of advancement of „education‟. Questions (i) and (ii) framed by the Court are, therefore, answered in the negative, i.e., in favour of the Assessee and against the Revenue.\n Consistency 29. On the issue of consistency, the Court notes that in the present case, continuously from AYs 1971-72 till 2005-06, exemption had been granted to the Assessee under Sections 11 and 12 of the Act. When for AYs 1975-76 and 1976-77 the AO sought to take a different view, the ITAT reversed that view and the decision of the ITAT was not challenged further by the Revenue. Apart from the fact that the Assessee was earning more profits from its essential activity of education, there was no change in the circumstances concerning the said activity since AY 2005-06 to warrant a different approach in the AYs in question.\n 30. In Parashuram Pottery Works Ltd. v. Income Tax Officer (1977) 106 ITR 1 (SC) the Supreme Court explained the rule of consistency in tax matters as under: \"We are aware of the fact that strictly speaking res judicata does not apply to income-tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year.\n \"On these reasonings in the absence of any material change justifying the Revenue to take a different view of the matter - and if there was no change it was in support of the Assessee - we do not think the question should have been reopened and contrary to what had been decided by the Commissioner of Income Tax in the earlier proceedings, a different and contradictory stand should have been taken.\"\n 31. In Radhasoami Satsang Saomi Bagh v. Commissioner of Income Tax (supra), the Supreme Court reiterated the above legal position. This time it quoted with approval the following extract from Hoystead v. Commissioner of Taxation 1926 AC 155 (PC): \"Parties are not permitted to begin fresh litigation because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted, litigation would have no end, except when legal ingenuity is exhausted. It is a principle of law that this cannot be permitted and there is abundant authority reiterating that principle. Thirdly, the same principle, namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the Plaintiff and traversable by the Defendant, has not been traversed. In that case also a Defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken.\"\n 32. Recently, in CIT v. Excel Industries (supra), the above legal position was reaffirmed by the Supreme Court. On the facts of that case it was held: \"31. It appears from the record that in several assessment years, the Revenue accepted the order of the Tribunal in favour of the Assessee and did not pursue the matter any further but in respect of some assessment years the matter was taken up in appeal before the Bombay High Court but without any success. That being so, the Revenue cannot be allowed to flip-flop on the issue and it ought let the matter rest rather than spend the tax payers' money in pursuing litigation for the sake of it.\"\n 33. The decisions relied upon by Mr. Kaushik appear to have turned on their peculiar facts. The question that arose was whether merely because the Revenue did not file appeals against the decisions against it in some of the AYs, it could be precluded from challenging the decisions on the issue against it in the subsequent AYs. The facts here are stark, though. Having adopted a consistent stand for over 34 years, and with there being no change in the circumstances, there was no justification for the Revenue to take a different view in the matter only because it was possible to do so.\n 34. Question (iii) framed by the Court is also answered in the negative, i.e., in favour of the Assessee and against the Revenue.\n 35. The impugned common order dated 23rd April 2015 of the ITAT for the AYs 2006-07, 2007-08, 2008-09 and 2009-10 is hereby set aside. The appeals are allowed but, in the circumstances, with no orders as to costs. CM No. 24170/2015 in ITA No. 811/2015 is also disposed of.\n S. MURALIDHAR, J CHANDER SHEKHAR, J MAY 03, 2017/Rm "
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"start": 0,
"text": "PETITIONER:\nCHAND KHAN & ANR.\n\n Vs.\n\nRESPONDENT:\nSTATE OF UTTAR PRADESH\n\nDATE OF JUDGMENT11/07/1995"
}
},
{
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"text": "BENCH:\nMUKHERJEE M.K. (J)\nBENCH:\nMUKHERJEE M.K. (J)\nANAND, A.S. (J)\n\nCITATION: 1995 SCC (5) 448\n 1995 AIR 2140 1995 SCALE (4)276\n JT 1995 (5) 329\n\nACT:\n\nHEADNOTE:\n\nJUDGMENT"
}
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"start": 301,
"text": ": THE 11TH DAY OF JULY, 1995 Present: Hon'ble Dr.Justice A.S.Anand Hon'ble Mr.Justice M.K.Mukherjee Mr.D.D.Thakur, Sr. Adv. Mr.Suman Kapoor, and Mr.Pankaj Kalra, Advs. with him for the appellants."
}
},
{
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"start": 514,
"text": "\nMr.Anis Ahmed Khan and Mr.A.S.Pundir, Advs. for the Respondent."
}
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"text": "\n J U D G M E N T"
}
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"text": "The following Judgment of the Court was delivered: IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION"
}
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"text": "CRIMINAL"
}
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"start": 718,
"text": "APPEAL NO. 716 OF 1991 Chand Khan and anr.\n Versus State of Uttar Pradesh J U D G M E N T M.K. MUKHERJEE"
}
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{
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"text": ". J.\n "
}
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"labels": [
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"text": "Chand Khan and Shabbu, the two appellants before us, and seven others were placed on trial before an Additional Sessions Judge of Rampur to answer common charges under Sections 452, 302/149, 325/149, 324/149 and 323/149 of the Indian Penal Code (`IPC' for short)."
}
},
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"labels": [
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"text": "Against five of them, including the two appellants, a charge under Section 148 IPC and against the other four a charge under Section 147 IPC were also framed."
}
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"end": 1353,
"labels": [
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],
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"text": "Besides, a separate charge under Section 302 IPC was framed against appellant Shabbu."
}
},
{
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"text": "The trial ended in an order of acquittal recorded in favour of all the persons araigned."
}
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"labels": [
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],
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"text": "Aggrieved thereby the State of Uttar Pradesh preferred an appeal which was partly allowed by the High Court by setting aside the acquittal of the two appellants and three others."
}
},
{
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"end": 1939,
"labels": [
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"start": 1622,
"text": "After setting aside their acquittal the High Court convicted the two appellants for the offence under Section 302 IPC as also for the other offences for which they were charged and sentenced them to suffer imprisonment for life for the former conviction and for the period already undergone for the other convictions."
}
},
{
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"labels": [
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"start": 1939,
"text": "\nThe other three were convicted of all the charges levelled against them except the one under Section 302/149 IPC and sentenced to imprisonment for the period already undergone."
}
},
{
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"id": "b2d2e81c791b4eb5ad496510f13653f1",
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"value": {
"end": 2290,
"labels": [
"FAC"
],
"start": 2116,
"text": "\nAssailing the above order of conviction and sentence only the two appellants have filed this appeal invoking their statutory right under Section 379 Criminal Procedure Code."
}
},
{
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"labels": [
"FAC"
],
"start": 2290,
"text": "\n Facts which are not in dispute are that Shah Alam (the deceased), his cousin Faheem Khan (P.W.6) and appellant Chand Khan were carrying on business of Karchobi from two separate workshops in Mohalla Gher Pipalwala within the police station of Ganj."
}
},
{
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"id": "aa4039d1022e49a3b00f50d26808fcbd",
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"value": {
"end": 2778,
"labels": [
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],
"start": 2541,
"text": "Aslam (P.W.7), a boy aged about 7/8 years, had been working for the appellant Chand Khan in his business but a few days before the incident out of which the present appeal arises he left his services and joined the set-up of Faheem Khan."
}
},
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"value": {
"end": 2969,
"labels": [
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],
"start": 2779,
"text": "On May 26, 1977 at or about 1 P.M.\nthe two appellants and accused Ishtiaq Khan went to the workshop of Faheem Khan and asked him to release Aslam so that he could work with Chand Khan again."
}
},
{
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"labels": [
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"start": 2970,
"text": "When Faheem Khan refused to oblige they assaulted him."
}
},
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"value": {
"end": 3101,
"labels": [
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],
"start": 3025,
"text": "For that incident, he lodged a complaint with the police the same afternoon."
}
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"labels": [
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],
"start": 3101,
"text": "\nHowever, according to the prosecution Shah Alam and Faheem Khan used to carry on their above business jointly but as adequate accommodation was not available at one and the same place they were maintaining two workshops, one in the house of one Allah Rakha Khan and the other in the terrace of Md.\nJama Khan."
}
},
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"end": 3729,
"labels": [
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],
"start": 3412,
"text": "The prosecution version of the incident is that on the same night (on May 26, 1977) the two appellants along with the other accused persons went to the house of Shah Alam to teach him a lesson for the report his business partner Faheem Khan had lodged against some of them earlier in the afternoon for assaulting him."
}
},
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"value": {
"end": 3837,
"labels": [
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],
"start": 3730,
"text": "For that purpose the two appellants went armed with Knives and the rest with other weapons including danda."
}
},
{
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"id": "4937e2530c8c4cb092fea74b83cd5372",
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"labels": [
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],
"start": 3838,
"text": "Shah Alam was then sitting on a cot in the open space in front of his house along with Irshad Khan, Babar Khan and Kaisher (P.W.2)."
}
},
{
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"text": "Immediately after entering the premises the accused persons started assaulting them."
}
},
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"end": 4173,
"labels": [
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],
"start": 4055,
"text": "Chand Khan gave two knife blows to Shah Alam and some others hit Irshad Khan, Babar Khan and Kaisher Khan with dandas."
}
},
{
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"value": {
"end": 4389,
"labels": [
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],
"start": 4174,
"text": "When the victims cried aloud, Keramat Ali Khan (P.W.1), father of the deceased Shah Alam, who was inside the house came out and some people from the mohalla including Kallan Mian @ Mardan Mian (P.W.4) arrived there."
}
},
{
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"end": 4576,
"labels": [
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],
"start": 4390,
"text": "In the meantime some of the miscreants including Chand Khan entered into the house of Keramat and assaulted his daughter Sm. Naeema Parveen (P.W.5) and his sister-in-law Sm. Raees Begum."
}
},
{
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"id": "e8a02850e12a4eceaf31eab64aef7c64",
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"end": 4743,
"labels": [
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],
"start": 4577,
"text": "When Sm. Naeema Parveen found that Chand Khan was about to beat her mother she picked up a knife used for cutting vegetables which was lying nearby and assaulted him."
}
},
{
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"labels": [
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],
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"text": "\nWhile coming out of the house Shabhu thrust his knife on the neck of Shah Alam felling him down."
}
},
{
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"labels": [
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],
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"text": "All of them then fled away."
}
},
{
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"labels": [
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],
"start": 4869,
"text": "Keramat Ali Khan arranged immediate hospitalisation of all the injured including Shah Alam, whose condition was precarious."
}
},
{
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"labels": [
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],
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"text": "Before, however, any treatment could be administered Shah Alam died."
}
},
{
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"labels": [
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],
"start": 5062,
"text": "While in the hospital Keramat Ali Khan got a complaint written by Asmat Ali Khan (P.W.9) as per his dictation and forwarded the same to the police station."
}
},
{
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"id": "e4e265984fd94f2ab36ccca4c2b0a511",
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"value": {
"end": 5399,
"labels": [
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],
"start": 5219,
"text": "At the hospital, Dr. S.P. Pandey (P.W.3) examined Sm.\nNaeema Parveen (P.W.5), Irshad Khan, Babar Khan, Sm. Raees Begum and Kaisher Khan (P.W.2) and found injuries on their persons."
}
},
{
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"end": 5578,
"labels": [
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],
"start": 5400,
"text": "P.W.5 had two incised wounds which, according to P.W.3, could be caused by sharp edged weapon and the other four had sustained contusions, which could be caused by blunt weapons."
}
},
{
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"id": "29820246a25c459d834b990b686155d3",
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"end": 5721,
"labels": [
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],
"start": 5579,
"text": "Chand Khan, who was also brought under arrest to the hospital in that very night as he had injuries on his person, was also examined by P.W.3."
}
},
{
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"id": "6d9ec6cd8ed249e8b2a01ba553099c7b",
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"labels": [
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],
"start": 5722,
"text": "He found three incised wounds on his person, all of which, according to him, could be caused by a sharp edged weapon."
}
},
{
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"id": "d2246bb6f11f42c6a0bd6b894d5bab4a",
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"end": 5987,
"labels": [
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],
"start": 5840,
"text": "Besides, P.W.3 examined Faheem Khan for injuries which, he alleged, were sustained by him in the incident that took place earlier in the afternoon."
}
},
{
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],
"start": 5988,
"text": "According to P.W.3 the two stab injuries he found on his person were likely to have been caused by a pointed weapon."
}
},
{
"from_name": "label",
"id": "48cbe18ca10f4c3e8bf8d19c9ac61d42",
"to_name": "text",
"type": "labels",
"value": {
"end": 6218,
"labels": [
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],
"start": 6104,
"text": "\n The post-mortem examination on the body of Shah Alam was held by Dr. O.N. Gupta on the following day (27.5.1977)"
}
},
{
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"id": "c9f6da29f678418ba1b44bc7145e9d70",
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"value": {
"end": 6277,
"labels": [
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],
"start": 6219,
"text": "He found the following external injuries on his person:- <"
}
},
{
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"id": "90ace57268794d7b8d7671631a4726d7",
"to_name": "text",
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"value": {
"end": 6283,
"labels": [
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],
"start": 6277,
"text": "SLS> 1"
}
},
{
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"id": "9b572623dba044c4a753e41e853568ee",
"to_name": "text",
"type": "labels",
"value": {
"end": 6452,
"labels": [
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],
"start": 6283,
"text": ". Incised punctured wound 5 cm. x 3 cm.\n x chest cavity deep on the base of left side neck, 5 cm. from the left sterno clavicular joint with direction downwards."
}
},
{
"from_name": "label",
"id": "72a9922d263d4173878c44b587c33c2f",
"to_name": "text",
"type": "labels",
"value": {
"end": 6555,
"labels": [
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],
"start": 6462,
"text": "2. Abrasion 4 cm. x 1 cm. on the right side forehead 3 cm. above right eye brows.\n 3."
}
},
{
"from_name": "label",
"id": "965412a762564cc7a8de0a82c7755f6e",
"to_name": "text",
"type": "labels",
"value": {
"end": 6564,
"labels": [
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],
"start": 6556,
"text": "Abrasion"
}
},
{
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"id": "2302b45754be46ee9a5799249e58b254",
"to_name": "text",
"type": "labels",
"value": {
"end": 6606,
"labels": [
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],
"start": 6565,
"text": "3 cm. x 2 cm. on right side forehead 3 cm"
}
},
{
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"id": "5ace9e93db1141c8a73010494a97c4b6",
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"value": {
"end": 6625,
"labels": [
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],
"start": 6606,
"text": ". lateral to injury"
}
},
{
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"id": "69a0684b03a7402a817eff04bb0b5cfe",
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"value": {
"end": 6717,
"labels": [
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],
"start": 6626,
"text": "No. 1.\n 4. Abrasion 2 cm. x 1cm. on the left side scapular region back.\n 5."
}
},
{
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"id": "e8f0bf7869e645b5be9d03cbf5ecf989",
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"value": {
"end": 6811,
"labels": [
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],
"start": 6718,
"text": "Incised wound 2 cm. x 1 cm. x skin deep on the left side back at inner angle of left scapula."
}
},
{
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"id": "03ade8023fb442df9124df21893294ca",
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"value": {
"end": 6932,
"labels": [
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],
"start": 6811,
"text": "\n 6. Incised punctured wound 3 cm. x 1 cm.\n chest cavity deep on left side back 4 cm. below injury No. 5."
}
},
{
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"id": "53bdde421da348ffa0209b0687424300",
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"value": {
"end": 7259,
"labels": [
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],
"start": 6933,
"text": "<SLE> On internal examination of the dead body he found that the sixth rit was cut under injury No. 6; the pleura was cut beneath the injuries No. 1 and 6, the left lung was cut through and through upper lobe was cut both under injury No.1 and 6 and the pericardium and the right side of the heart were cut by the injury No.1."
}
},
{
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"id": "22c2f60fd7e54f8d966973b8dcc77b9a",
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"value": {
"end": 7369,
"labels": [
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],
"start": 7260,
"text": "Dr. Gupta opined that the death was due to shock and haemorrhage as a result of the injuries to vital organs."
}
},
{
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"id": "759fdf3e57b04f65aa3ba0a22bc54a39",
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"value": {
"end": 7531,
"labels": [
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],
"start": 7379,
"text": "Shri V.P. Singh (P.W.16) Station House Officer of Ganj Police Station took up investigation of the case registered on the complaint of Keramat Ali Khan."
}
},
{
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"id": "83f8da37a4a14d3c92acab45f47de083",
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"end": 7760,
"labels": [
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],
"start": 7532,
"text": "Besides, interrogating him and the injured persons in the hospital on that very night, he inspected the place of occurrence, prepared a site plan and seized some blood stained earth from near the gate of the complainant's house."
}
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{
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"labels": [
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"start": 7761,
"text": "After completion of investigation he submitted charge-sheet against the nine accused persons."
}
},
{
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"end": 7979,
"labels": [
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],
"start": 7864,
"text": "The appellants and the other accused persons pleaded not guilty and asserted that they had been falsely implicated."
}
},
{
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"value": {
"end": 8136,
"labels": [
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],
"start": 7980,
"text": "In his statement recorded under Section 313 Dr.\nP.C.Chand Khan, however, admitted that earlier P.W.7 used to work at his workshop but P.W.6 weaned him away."
}
},
{
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"id": "8a7ecb2937df406ba600359001cf9bfd",
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"end": 8296,
"labels": [
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],
"start": 8137,
"text": "He also admitted that he had gone to the workshop of Faheem Khan with Shabbu and Ishtiad and asked him to hand over Aslam to him and that he had assaulted him."
}
},
{
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"id": "9cec640c436e415694e53aa9dbd0f656",
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"value": {
"end": 8350,
"labels": [
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],
"start": 8297,
"text": "He however denied to have assaulted him with a knife."
}
},
{
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"id": "ffe867f22fb945cf9d264c4bcda4c529",
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"value": {
"end": 8536,
"labels": [
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],
"start": 8351,
"text": "As regards the incident in question, his version was that on that night there was a festivity in the house of his cousin Sajjan and Mahboob (since acquitted) to which he was an invitee."
}
},
{
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"id": "0b599e97eb22424fa67b0c05b5bf63db",
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"end": 8684,
"labels": [
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],
"start": 8537,
"text": "As Rafiouddin of their mohalla was also invited in that function he went to his house which was near the house of the complainant to accompany him."
}
},
{
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"id": "381d297a8a5f4dfc930982aeb11afa22",
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"value": {
"end": 8828,
"labels": [
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],
"start": 8685,
"text": "There, on hearing his voice, Shah Alam and Kaisher Khan came out with knives accompanied by Babar Khan and Irshad Khan and started beating him."
}
},
{
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"id": "c4a05744298446a6b5dd26d024713cfa",
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"end": 8954,
"labels": [
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],
"start": 8829,
"text": "When he cried aloud Shabbu (appellant), Sharif and Salim who were standing nearby and talking among themselves arrived there."
}
},
{
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"id": "e3830c477b1f4301bc5cd3cc59eaaae1",
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"value": {
"end": 9066,
"labels": [
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],
"start": 8955,
"text": "When Shah Alam and his companions attempted to assault Shabbu and others, they in their defence assaulted them."
}
},
{
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"id": "556f344effe04e88bd8b4332df1de53e",
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"value": {
"end": 9147,
"labels": [
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],
"start": 9067,
"text": "As the ladies of the house had come out then they also sustained minor injuries."
}
},
{
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"id": "b974a01685014dde8f078c6bacbf6d9c",
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"value": {
"end": 9327,
"labels": [
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],
"start": 9148,
"text": "Appellant Shabbu, in his statement under Section 313 Dr.P.C. admitted the assault on Faheem Khan in that afternoon but denied his presence at the time of the incident in question."
}
},
{
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"id": "a5a91dd5caaf4760aa0b50afd36af8af",
"to_name": "text",
"type": "labels",
"value": {
"end": 9443,
"labels": [
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],
"start": 9329,
"text": "To prove its case the prosecution examined sixteen witnesses but no witness was examined on behalf of the defence."
}
},
{
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"id": "ececcf85b3bf4a438fd59cf755281c0f",
"to_name": "text",
"type": "labels",
"value": {
"end": 9555,
"labels": [
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],
"start": 9444,
"text": "On consideration of the evidence adduced the trial Court held that the prosecution case was unworthy of credit."
}
},
{
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"id": "af39d4187f7d4d00bfb5abb93f05cee4",
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"value": {
"end": 9854,
"labels": [
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],
"start": 9555,
"text": "\nOn appeal the learned Judges of the High Court found the evidence of the four eye-witnesses examined by the prosecution, namely, P.Ws. 1, 2, 4 and 5 convincing and the reasons given by the trial Court for disbelieving them and, for that matter, discarding the case of the prosecution were perverse."
}
},
{
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"id": "7e4e7e3deed94ad0a87cdec66a20df8d",
"to_name": "text",
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"value": {
"end": 10165,
"labels": [
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],
"start": 9854,
"text": "\n It was urgeo on behalf of the appellants that as the trial Court gave detailed reasons for disbelieving the evidence of the prosecution witnesses the High Court was not justified in interfering with the same even if another reasonably possible view of the evidence in favour of the prosecution might be taken."
}
},
{
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"id": "04b81dcbfa7b40279032ff200bf3067d",
"to_name": "text",
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"value": {
"end": 10569,
"labels": [
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],
"start": 10166,
"text": "Having heard the learned counsel at length and seen the judgments of the learned Courts below in the light of the evidence on record, we find that the High Court committed no error or injustice in interfering with the order of acquittal for it has noticed all the salient features of the case in the judgment of the trial Court, discussed them well and disapproved them for cogent and justified reasons."
}
},
{
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"id": "b9a3951f9f6d4528a9dcc96322511154",
"to_name": "text",
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"value": {
"end": 10694,
"labels": [
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],
"start": 10570,
"text": "We are in complete agreement with the High Court that the judgment of trial Court was perverse and deserved to be set aside."
}
},
{
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"id": "7f8fb5ca8e5f4149bd3b176631919d87",
"to_name": "text",
"type": "labels",
"value": {
"end": 11022,
"labels": [
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],
"start": 10696,
"text": "In the context of the respective cases of the parties, it could not be - nor was it - disputed that an incident of assault took place in the night of May 26, 1977 in or around the residential premises of Keramat Ali Khan (P.W.1) in the backdrop of an earlier incident in the afternoon in which Faheem Khan (P.W.6) was injured."
}
},
{
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"id": "4f9ab27df89b4a8facb1c1977253b726",
"to_name": "text",
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"value": {
"end": 11178,
"labels": [
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],
"start": 11023,
"text": "It was also not disputed that in the incident in question Shah Alam met with his death while some others including appellant Chand Khan sustained injuries."
}
},
{
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"id": "f33ba486b9a741809a6d4ef76b642ff3",
"to_name": "text",
"type": "labels",
"value": {
"end": 11463,
"labels": [
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],
"start": 11179,
"text": "In that view of the matter the principal question that fell for determination before the learned Courts below was whether it took place within the residential premises of P.W.1 and in the manner as alleged by the prosecution or in the lane outside his house as claimed by the defence."
}
},
{
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"id": "353b5557b0d0423e93bc62ec1d867a20",
"to_name": "text",
"type": "labels",
"value": {
"end": 11774,
"labels": [
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],
"start": 11464,
"text": "To prove its version of the incident, the prosecution relied, needless to say, upon the evidence of the four eye-witnesses referred to earlier while the defence relied upon the statement of the accused including the appellant Chand Khan made under Section 313 Dr.P.C. and the circumstances appearing on record."
}
},
{
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"id": "253ba81be1d64f08be2af28052f4235f",
"to_name": "text",
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"value": {
"end": 12042,
"labels": [
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],
"start": 11776,
"text": "In negativing the prosecution version the trial Court first held, for reasons given, that the assault on Faheem Khan in the afternoon by Chand Khan could not be a motive for committing the murder of Shah Alam and that no other motive was ascribed by the prosecution."
}
},
{
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"id": "2e25e3031a80410baffcb75e9c0a3911",
"to_name": "text",
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"value": {
"end": 12435,
"labels": [
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],
"start": 12043,
"text": "Even if we proceed on the basis that the prosecution failed to prove the genesis or motive and that the above finding of the trial Court in this regard is unexceptionable still then this appeal cannot succeed on that score for proof of motive is not essential for success of a prosecution case where - as in the instant case - the ocular testimony in support of it is convincing and reliable."
}
},
{
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"id": "b5c38c8f3ac24591b08e8b68004f1ea1",
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"value": {
"end": 12711,
"labels": [
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],
"start": 12436,
"text": "Indeed, as our discussion to follow will show the findings recorded by the trial Court for discarding the evidence of the four eye witnesses are based either on presumption, surmise and conjecture or on undue and unjustified reliance upon minor and immaterial contradictions."
}
},
{
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"id": "f1c2b940b83d4baca1bec27a456c6d01",
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"value": {
"end": 12870,
"labels": [
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],
"start": 12713,
"text": "In dealing with the evidence of the four eye - witnesses the trial Court first observed that having regard to the incident that took place in that afternoon."
}
},
{
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"id": "55784918224747b998681a1971c4f45a",
"to_name": "text",
"type": "labels",
"value": {
"end": 13046,
"labels": [
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],
"start": 12871,
"text": "Faheem Khan and Shah Alam could only be the targets of the attack of the accused persons and not others, namely, Kaisher Khan, Babar Khan and Irshad Khan as testified by them."
}
},
{
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"id": "c3098db0261f4801bb92f23dcdfce8b6",
"to_name": "text",
"type": "labels",
"value": {
"end": 13394,
"labels": [
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],
"start": 13047,
"text": "It next observed that if their evidence that Shah Alam and the above three persons were sitting together in front of the complainant's house and were talking to each other when the accused arrived there was to be believed, the latter could have caught hold of Shah Alam from out of those persons and put him to death in no time and then gone back."
}
},
{
"from_name": "label",
"id": "bfa536e14dac4a4193859c468b466326",
"to_name": "text",
"type": "labels",
"value": {
"end": 13711,
"labels": [
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],
"start": 13395,
"text": "After making the above observations the trial Court held: <SLS> \"It may be that the members of the complainant's house might have come-out at their door on hearing the noise and alarm of this incident and that they might be rebuking and even accusing these accused-persons on their assaulting Shah Alam etc\".\n "
}
},
{
"from_name": "label",
"id": "087d1c8cb8ce45adaf5b89eb52826379",
"to_name": "text",
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"value": {
"end": 14264,
"labels": [
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],
"start": 13711,
"text": "<SLE> The trial Court also disbelieved the prosecution case as to the manner in which the accused persons entered into the house of the complainant and beat the female members and, in explaining away the injuries found on the persons of Sm. Naeema Parveen and Sm. Raees Begum, observed: <SLS> \"........and truth of the matter appears to be that Sm. Naeema Parveen and Sm. Raees Begum had accidently sustained their injuries in this incident when they had entered in the arena of the fight for defending Shah Alam etc. from the assault of the accused.\"\n "
}
},
{
"from_name": "label",
"id": "b586c0bf935a4475a97a6c05806a727b",
"to_name": "text",
"type": "labels",
"value": {
"end": 14385,
"labels": [
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],
"start": 14264,
"text": "<SLE> The High Court brushed aside the first of the above quoted findings of the trial Court with the following comments:"
}
},
{
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"id": "fe0d4e5467a84f5eb89537377d8ee0bf",
"to_name": "text",
"type": "labels",
"value": {
"end": 14784,
"labels": [
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],
"start": 14386,
"text": "<SLS> \"The observation of the Additional Sessions Judge that the accused were likely to single out Shah Alam and to assault him alone in Shah Alam, Irshad Khan, Babar Khan and Kaiser Khan had been found sitting on the cot is misconceived and devoid of sense for Babar Khan the brother of Shah Alam and Kaisher Khan and Irshad Khan who were his close relatives could not have been silent soectators."
}
},
{
"from_name": "label",
"id": "1560f7e7c6eb4195aebe882378559156",
"to_name": "text",
"type": "labels",
"value": {
"end": 14863,
"labels": [
"ANALYSIS"
],
"start": 14785,
"text": "It is for this reason that they had all sustained injuries around the cot.\"\n <"
}
},
{
"from_name": "label",
"id": "fe6269ac1287454c8721d359eb2dfb62",
"to_name": "text",
"type": "labels",
"value": {
"end": 15174,
"labels": [
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],
"start": 14863,
"text": "SLE> As regards the other finding the High Court observed that in view of the nature of the injuries sustained by Sm.\n Naeema Parveen and Sm. Raees Begum and in the absence of any suggestion put forward by the defence that those injuries were caused accidentally the criticism of the trial Court was perverse.\n "
}
},
{
"from_name": "label",
"id": "7f3ae754f0fc48faa7e5d8c6f630e92e",
"to_name": "text",
"type": "labels",
"value": {
"end": 15312,
"labels": [
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],
"start": 15174,
"text": "On a close analysis of the materials on record we are of the opinion that the High Court was fully justified in making the above comments."
}
},
{
"from_name": "label",
"id": "561271ba4e4f41ec88ed1f2c3a528281",
"to_name": "text",
"type": "labels",
"value": {
"end": 15468,
"labels": [
"ANALYSIS"
],
"start": 15313,
"text": "That Kaisher Khan (P.W.2), Babar Khan and Irshad Khan were present at the material time as testified by the four eye witnesses was admitted by the defence."
}
},
{
"from_name": "label",
"id": "7110e10dbff8408885ac367b2155a461",
"to_name": "text",
"type": "labels",
"value": {
"end": 15593,
"labels": [
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],
"start": 15469,
"text": "It was also admitted that besides Shah Alam the above three persons as well as lady members of the house sustained injuries."
}
},
{
"from_name": "label",
"id": "7597ef883f364e0eaf063635e6de0901",
"to_name": "text",
"type": "labels",
"value": {
"end": 15797,
"labels": [
"ANALYSIS"
],
"start": 15594,
"text": "However, according to them, they had beaten Shah Alam and other male members in exercise of their right of private defence and the ladies sustained simple injuries as they had then come out of the house."
}
},
{
"from_name": "label",
"id": "2bd3cafdeee44158aeec8ae35c514ef5",
"to_name": "text",
"type": "labels",
"value": {
"end": 15939,
"labels": [
"ANALYSIS"
],
"start": 15798,
"text": "The trial Court therefore was not at all justified in disbelieving even the presence of Irshad Khan, Babar Khan and Kaisher Khan at the spot."
}
},
{
"from_name": "label",
"id": "34c11f473b984b96be154cf1b400de75",
"to_name": "text",
"type": "labels",
"value": {
"end": 16317,
"labels": [
"ANALYSIS"
],
"start": 15940,
"text": " Then again, keeping in view the fact that the injuries sustained by Sm. Naeema Parveen could be caused by a sharp edged weapon only and it being not the case of the defence that they had with them any such weapon the finding of the trial Court that Sm. Naeema Parveen and Sm. Raees Begum had accidentally sustained their injuries must be said to be based on conjecture only."
}
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"text": "\n Another reason which weighed with the trial Court in disbelieving the prosecution case was that there were discrepancies in evidence as to the details and manner of assault."
}
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"start": 16493,
"text": "While detailing those discrepancies the trial Court observed: <SLS> \"According to the complainant Keramat Ali Khan that cot was lying just in front of the main door of his house at a distance of only 2 to 3 steps from the door and the entire beating outside his house had taken place near that cot and the last fatal blow of the chhuri was also inflicted by Shabbu accused on Shah Alam at only 2 or 3 steps in front of his main door."
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"text": "On the other hand, according to Sm. Naeema Parveen, that cot was lying at 6 or 7 steps in front of the main door of the house."
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"labels": [
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"start": 17054,
"text": "According to P.W. Kaisher Khan, to whom that cot belonged, the cot was lying by the side of his chapper, i.e., towards the north- west of the complainant's door and, according to him it was lying at 6 or 7 steps from that door towards the left side."
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{
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"start": 17304,
"text": "According to P.W. Mardan Mian alias Kallan Mian also, that cot was lying at 7 or 8 steps towards the north- west from the complainant's door."
}
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{
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"text": "P.W.\n "
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"text": "Keraman Ali Khan, at first, stated before me that the accused-persons had beaten Shah Alam etc, towards the east of the cot."
}
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{
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"text": "Then he stated in the next breath that some of them were beating on one side, while the others were beating on the other side of the cot."
}
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{
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"start": 17715,
"text": "Further on he stated that the victims were roaming around that cot, while being beaten, and the samething has been stated by some other witnesses.\""
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{
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"text": "<SLE> The discrepancies pointed out by the trial Court are patently of minor character and cannot detract from the evidentiary value of the eye-witnesses."
}
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{
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"text": "The High Court was, therefore, fully justified in ignoring those discrepancies while dealing with the evidence of the four eye-witnesses."
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{
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"text": "\n The next reason canvassed by the trial Court for disbelieving the prosecution case was that the evidence of P.Ws. Kaisher Khan (P.W.2) and Mardan Mian (P.W.4) only established that some of the accused persons had assaulted Shah Alam and not all."
}
},
{
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"end": 18841,
"labels": [
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"start": 18404,
"text": "Having recorded the above finding it was imperative for the trial Court to consider the case of the individual accused on their respective merits in the light of other evidence on record and not to outright reject the evidence of the two witnesses in its entirely for it is trite that the principle Single in uno. Falsus in omnibus\"\ndoes not apply to criminal trials and it is the duty of the Court to disengage the truth from falsenood."
}
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{
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"text": "\n The judgment of the trial Court is replete with similar such findings which the High Court has rightly not accepted as correct."
}
},
{
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"end": 19184,
"labels": [
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],
"start": 18971,
"text": "However, to avoid prolixity we refrain from detailing or discussing all of them and refer only to the concluding one to highlight the absurd and perverse approach of the trial Court in dispensing criminal justice."
}
},
{
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"end": 19195,
"labels": [
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],
"start": 19185,
"text": "It reads:-"
}
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"value": {
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"labels": [
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],
"start": 19196,
"text": "<SLS> \"It is quite probable that Shah Alam etc. miont be bearing grudge and ill-will against Chand Khan etc."
}
},
{
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"end": 19735,
"labels": [
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],
"start": 19305,
"text": "On account of the noon incident of that day, in which the accused Chand Khan, Ishtiaq Khan and Shabbu had an altercation with P.W. Raheem Khan and had then beaten him; and it may be that Shah Alam etc. might have caught-hold of Chand Khan accused when he had gone to the house of Rafiquddin for calling him and that they might have taken him from there in front of the complainant's house and might have assaulted him with churis."
}
},
{
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"end": 20108,
"labels": [
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],
"start": 19736,
"text": "Then, it is also quite probable that the accused Sharif Khan, Salim Khan and Shabbu might have arrived on the spot on hearing the alarm raised by Chand khan accused and that Shah Alam etc. might have tried to assault them also and thereupon they might have assaulted Shah Alam etc. with dandas and chhuri in defence of Chand Khan accused, as also in their own selfdefence."
}
},
{
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"labels": [
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],
"start": 20109,
"text": "It has come in evidence that the house of Shabbu accused is situated quite near to the road crossing and that the house of Salim Khan accused is also situated in the same locality."
}
},
{
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"labels": [
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"start": 20290,
"text": "So, it is quite possible that the accused Shabbu, Salim Khan and Chand Khan might be standing at the road crossing near the house of Shabbu accused and might be talking to each-other at that time and that they might have reached the sput on hearing the alarm raised by Chand Khan accused.\"\n (emphasis supplied)"
}
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"start": 20601,
"text": "<SLE> By frequent recourse to and reliance upon the words \"might be\" and \"might have\" in the above quoted passage the trial Court, instead of finding out which of the contending versions was correct and acceptable, gave out a version of its own relying solely on presumption, surmise and conjecture."
}
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"start": 20901,
"text": "The trial Court would have been, on a proper discussion and aporaisal of the evidence, fully justified to hold that the prosecution case was unreliable and record an order of acquittal in favour of accused without going into the question as to whether the defence case was true, for burden of proof was upon the prosecution."
}
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{
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"text": "Equally justified the trial Court would have been in recording such an order if it found the defence case probable."
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{
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"text": "But it was not at all justified to make out a third case entering into the domain of speculation."
}
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"text": "The High Court was, therefore, right in basing its decision on a fresh and proper appraisal of the evidence leaving aside the obstinate findings of the trial Court."
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"text": "Having gone through the record we do not find any reason to differ from the decision so arrived at by the High Court."
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"text": "\n Mr. Thakur, learned counsel for the appellants, however submitted that even if it was held that the reasons which weighed with the trial Court in recording the order of acquittal were faulty and unsustainable still then the order of acquittal was liable to be upheld for the evidence on record did not Justify the impugned Judgment rendered by the High Court."
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"start": 22084,
"text": "To bring home his contention Mr. Thakur urged that the incident that took place in the afternoon in which Faheem Khan was assaulted by Chand Khan might have been a motive for the former to assault the latter and not vice- versa."
}
},
{
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"start": 22313,
"text": "In that context, Mr. Thakur urged, the defence version of the incident in question was more probable than that of the prosecution."
}
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{
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"start": 22444,
"text": "This contention of Mr. Thakur need not be gone into for we have earlier observed, and at the risk of repetition may again point out, that as the evidence on record clearly proves that the incident took place in the manner alleged by the prosecution absence or insufficency of motive is immaterial."
}
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{
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"labels": [
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],
"start": 22742,
"text": "Mr. Thakur next submitted that the evidence of the prosecution withesses so far as it related to the assault on Sm. Naeema Praveen and Chand Khan inside the house was patently false; firstly. because no blood was found inside the house and secondly because no knife was produced by Sm. Naeema Praveen much less seized by the Investigation Officer."
}
},
{
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"labels": [
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],
"start": 23090,
"text": "In support of this contention he drew our attention to the evidence of the Investigation Officer (PW 16) wherein he stated that neither he had seen nor shown the vegetable cutting knife used by Sm. Naeema Praveen and that he had found blood at the place which was about 8 steps from the northern main door outside the house of Keramat Ali and nowhere else."
}
},
{
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"text": "We are not impressed by any of the above contentions."
}
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"labels": [
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],
"start": 23500,
"text": "\n There is no evidence on record to show that there was profuse bleeding from the injuries sustained by the two ladies and Chand Khan for blood to trickle down to the floor."
}
},
{
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],
"start": 23674,
"text": "On the contrary, the find of blood near the threshold of P.W.1's house fits in with the evidence of the eye- witnesses and the nature of injuries sustained by Shah Alam."
}
},
{
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"end": 24067,
"labels": [
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],
"start": 23843,
"text": "\nFrom the evidence of Sm. Naeema Praveen (PW 5) we get that when the accused persons started beating the members of their family inside their premises, she her mother and aunt (Raees Begum) started shouting and cursing them."
}
},
{
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"value": {
"end": 24139,
"labels": [
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],
"start": 24068,
"text": "Then, when they found Chand Khan was approaching them they went inside."
}
},
{
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"value": {
"end": 24271,
"labels": [
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],
"start": 24139,
"text": "\nThere Ishtiaq Khan gave two chhuri blows on the left side of her face and Sharik Khan gave two danda blows to her aunt Raees Begum."
}
},
{
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"id": "29c39a1c597b49b4906af720cfbccf04",
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"value": {
"end": 24374,
"labels": [
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],
"start": 24272,
"text": "When she found Chand Khan was about to beat her mother, she struck him with a vegetable cutting knife."
}
},
{
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"id": "73bfb92fc4cb47f1aa2b7b47e17f4e9a",
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"end": 24490,
"labels": [
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],
"start": 24375,
"text": "The above evidence of P.W.5 stands substantially corroborated by the other three eye-witnesses referred to earlier."
}
},
{
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"id": "e11eac25ca48453cbe0730aa17621c1f",
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"end": 24616,
"labels": [
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],
"start": 24491,
"text": "Then again the nature of injuries as found by the doctor upon her, Sm. Raees Begum and Chand Khan fits in with her testimony."
}
},
{
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"id": "31fe9e8d48754a74bc0441ed0e734d74",
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"value": {
"end": 24781,
"labels": [
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],
"start": 24617,
"text": "In our opinion the best corroborative piece of evidence is furnished by the F.I.R. which was lodged by Keramat Ali (P.W.1) on the basis of what he heard from P.W.5."
}
},
{
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"value": {
"end": 25065,
"labels": [
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],
"start": 24782,
"text": "In the F.I.R., which was lodged within two hours of the incident, the substratum of the entire prosecution case finds place including a statement that during the incident Sm. Naeema Praveen had, in defending herself, given a blow to one of the accused with a vegetable cutting knife."
}
},
{
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"id": "cc7f31f7c88c49ae953f0921c85f1940",
"to_name": "text",
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"value": {
"end": 25566,
"labels": [
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],
"start": 25066,
"text": "In view of the above statement recorded in the F.I.R., the Investigation Officer (P.W.16) ought to have taken steps to seize the knife even if P.W. 5 had not produced it for, one of the essential requisites of a proper investigation is collection of evidence relating to the commission of the offence and that necessarily includes, in a case of assault, seizure of the weapon of offence, but then failure to collect evidence and failure to produce evidence collected during investigation at the trial"
}
},
{
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"id": "ebcf436f49914a83b1d9beb7ac1f0997",
"to_name": "text",
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"value": {
"end": 25617,
"labels": [
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],
"start": 25567,
"text": "carry two different connotations and consequences."
}
},
{
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"id": "41e05e9a60604276adc8857ad542c0d9",
"to_name": "text",
"type": "labels",
"value": {
"end": 25862,
"labels": [
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],
"start": 25618,
"text": "While, the former may entitle the Court to hold the investigation to be perfunctory or tainted affecting the entire trial in case of the latter the Court may legitimately draw a presumption in accordance with Section 114(g) of the Evidence Act."
}
},
{
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"id": "0957ec3e6f864c85af42d44321f69db0",
"to_name": "text",
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"value": {
"end": 26098,
"labels": [
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],
"start": 25863,
"text": "As the case presented before us comes under the first category of failures we have to find out whether we will be justified in discarding the prosecution case solely for the remissness of the Investigating Officer in seizing the knife."
}
},
{
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"id": "c2406c67fb564ee2998c47a069e79098",
"to_name": "text",
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"value": {
"end": 26429,
"labels": [
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],
"start": 26099,
"text": "The consistent and reliable evidence of the eye witnesses coupled with the nature of injuries sustained by some of them and Chand Khan and the fact that in the F.I.R. it has clearly been stated that one of the miscreants had been assaulted by a vegetable cutting knife do not persuade us to answer the question in the affirmative."
}
},
{
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"id": "ae71235096764ec89ef850d1045988bd",
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"value": {
"end": 26656,
"labels": [
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],
"start": 26430,
"text": "Mr. Thakur lastly submitted that the entire prosecution story was improbable for if really the incident had happened in the manner alleged by it, the persons present in P.W.1's house would have sustained more serious injuries."
}
},
{
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"id": "49c40003724f47d1937c5b8336c4c6e8",
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"value": {
"end": 26861,
"labels": [
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],
"start": 26657,
"text": "We do not find any substance in this contention for it is evident that Shah Alam was the main target and the assault on others was carried out to thwart any resistance from those present in the courtyard."
}
},
{
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"id": "cca2766ce20c4801bdbc3ee1162b2489",
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"value": {
"end": 27167,
"labels": [
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],
"start": 26861,
"text": "\n As all the points raised by Mr. Thakur fail and as on a conspectus of the entire evidence we are fully satisfied that the conclusions drawn by the High Court, particularly regarding the roles played by the two appellants in the riot and the murder of Shah Alam are unexceptionable, we dismiss the appeal."
}
},
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"value": {
"end": 27268,
"labels": [
"RPC"
],
"start": 27168,
"text": "The appellants, who are on bail, shall now surrender to their bail bonds to serve out the sentences."
}
}
]
}
] | 1,744 | {
"text": "PETITIONER:\nCHAND KHAN & ANR.\n\n Vs.\n\nRESPONDENT:\nSTATE OF UTTAR PRADESH\n\nDATE OF JUDGMENT11/07/1995\n\nBENCH:\nMUKHERJEE M.K. (J)\nBENCH:\nMUKHERJEE M.K. (J)\nANAND, A.S. (J)\n\nCITATION: 1995 SCC (5) 448\n 1995 AIR 2140 1995 SCALE (4)276\n JT 1995 (5) 329\n\nACT:\n\nHEADNOTE:\n\nJUDGMENT: THE 11TH DAY OF JULY, 1995 Present: Hon'ble Dr.Justice A.S.Anand Hon'ble Mr.Justice M.K.Mukherjee Mr.D.D.Thakur, Sr. Adv. Mr.Suman Kapoor, and Mr.Pankaj Kalra, Advs. with him for the appellants.\nMr.Anis Ahmed Khan and Mr.A.S.Pundir, Advs. for the Respondent.\n J U D G M E N T The following Judgment of the Court was delivered: IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 716 OF 1991 Chand Khan and anr.\n Versus State of Uttar Pradesh J U D G M E N T M.K. MUKHERJEE. J.\n Chand Khan and Shabbu, the two appellants before us, and seven others were placed on trial before an Additional Sessions Judge of Rampur to answer common charges under Sections 452, 302/149, 325/149, 324/149 and 323/149 of the Indian Penal Code (`IPC' for short). Against five of them, including the two appellants, a charge under Section 148 IPC and against the other four a charge under Section 147 IPC were also framed. Besides, a separate charge under Section 302 IPC was framed against appellant Shabbu. The trial ended in an order of acquittal recorded in favour of all the persons araigned. Aggrieved thereby the State of Uttar Pradesh preferred an appeal which was partly allowed by the High Court by setting aside the acquittal of the two appellants and three others. After setting aside their acquittal the High Court convicted the two appellants for the offence under Section 302 IPC as also for the other offences for which they were charged and sentenced them to suffer imprisonment for life for the former conviction and for the period already undergone for the other convictions.\nThe other three were convicted of all the charges levelled against them except the one under Section 302/149 IPC and sentenced to imprisonment for the period already undergone.\nAssailing the above order of conviction and sentence only the two appellants have filed this appeal invoking their statutory right under Section 379 Criminal Procedure Code.\n Facts which are not in dispute are that Shah Alam (the deceased), his cousin Faheem Khan (P.W.6) and appellant Chand Khan were carrying on business of Karchobi from two separate workshops in Mohalla Gher Pipalwala within the police station of Ganj. Aslam (P.W.7), a boy aged about 7/8 years, had been working for the appellant Chand Khan in his business but a few days before the incident out of which the present appeal arises he left his services and joined the set-up of Faheem Khan. On May 26, 1977 at or about 1 P.M.\nthe two appellants and accused Ishtiaq Khan went to the workshop of Faheem Khan and asked him to release Aslam so that he could work with Chand Khan again. When Faheem Khan refused to oblige they assaulted him. For that incident, he lodged a complaint with the police the same afternoon.\nHowever, according to the prosecution Shah Alam and Faheem Khan used to carry on their above business jointly but as adequate accommodation was not available at one and the same place they were maintaining two workshops, one in the house of one Allah Rakha Khan and the other in the terrace of Md.\nJama Khan.\n The prosecution version of the incident is that on the same night (on May 26, 1977) the two appellants along with the other accused persons went to the house of Shah Alam to teach him a lesson for the report his business partner Faheem Khan had lodged against some of them earlier in the afternoon for assaulting him. For that purpose the two appellants went armed with Knives and the rest with other weapons including danda. Shah Alam was then sitting on a cot in the open space in front of his house along with Irshad Khan, Babar Khan and Kaisher (P.W.2). Immediately after entering the premises the accused persons started assaulting them. Chand Khan gave two knife blows to Shah Alam and some others hit Irshad Khan, Babar Khan and Kaisher Khan with dandas. When the victims cried aloud, Keramat Ali Khan (P.W.1), father of the deceased Shah Alam, who was inside the house came out and some people from the mohalla including Kallan Mian @ Mardan Mian (P.W.4) arrived there.\nIn the meantime some of the miscreants including Chand Khan entered into the house of Keramat and assaulted his daughter Sm. Naeema Parveen (P.W.5) and his sister-in-law Sm. Raees Begum. When Sm. Naeema Parveen found that Chand Khan was about to beat her mother she picked up a knife used for cutting vegetables which was lying nearby and assaulted him.\nWhile coming out of the house Shabhu thrust his knife on the neck of Shah Alam felling him down. All of them then fled away. Keramat Ali Khan arranged immediate hospitalisation of all the injured including Shah Alam, whose condition was precarious. Before, however, any treatment could be administered Shah Alam died. While in the hospital Keramat Ali Khan got a complaint written by Asmat Ali Khan (P.W.9) as per his dictation and forwarded the same to the police station.\n At the hospital, Dr. S.P. Pandey (P.W.3) examined Sm.\nNaeema Parveen (P.W.5), Irshad Khan, Babar Khan, Sm. Raees Begum and Kaisher Khan (P.W.2) and found injuries on their persons. P.W.5 had two incised wounds which, according to P.W.3, could be caused by sharp edged weapon and the other four had sustained contusions, which could be caused by blunt weapons. Chand Khan, who was also brought under arrest to the hospital in that very night as he had injuries on his person, was also examined by P.W.3. He found three incised wounds on his person, all of which, according to him, could be caused by a sharp edged weapon. Besides, P.W.3 examined Faheem Khan for injuries which, he alleged, were sustained by him in the incident that took place earlier in the afternoon. According to P.W.3 the two stab injuries he found on his person were likely to have been caused by a pointed weapon.\n The post-mortem examination on the body of Shah Alam was held by Dr. O.N. Gupta on the following day (27.5.1977) He found the following external injuries on his person:- <SLS> 1. Incised punctured wound 5 cm. x 3 cm.\n x chest cavity deep on the base of left side neck, 5 cm. from the left sterno clavicular joint with direction downwards.\n 2. Abrasion 4 cm. x 1 cm. on the right side forehead 3 cm. above right eye brows.\n 3. Abrasion 3 cm. x 2 cm. on right side forehead 3 cm. lateral to injury No. 1.\n 4. Abrasion 2 cm. x 1cm. on the left side scapular region back.\n 5. Incised wound 2 cm. x 1 cm. x skin deep on the left side back at inner angle of left scapula.\n 6. Incised punctured wound 3 cm. x 1 cm.\n chest cavity deep on left side back 4 cm. below injury No. 5.\n<SLE> On internal examination of the dead body he found that the sixth rit was cut under injury No. 6; the pleura was cut beneath the injuries No. 1 and 6, the left lung was cut through and through upper lobe was cut both under injury No.1 and 6 and the pericardium and the right side of the heart were cut by the injury No.1. Dr. Gupta opined that the death was due to shock and haemorrhage as a result of the injuries to vital organs.\n Shri V.P. Singh (P.W.16) Station House Officer of Ganj Police Station took up investigation of the case registered on the complaint of Keramat Ali Khan. Besides, interrogating him and the injured persons in the hospital on that very night, he inspected the place of occurrence, prepared a site plan and seized some blood stained earth from near the gate of the complainant's house. After completion of investigation he submitted charge-sheet against the nine accused persons.\n The appellants and the other accused persons pleaded not guilty and asserted that they had been falsely implicated. In his statement recorded under Section 313 Dr.\nP.C.Chand Khan, however, admitted that earlier P.W.7 used to work at his workshop but P.W.6 weaned him away. He also admitted that he had gone to the workshop of Faheem Khan with Shabbu and Ishtiad and asked him to hand over Aslam to him and that he had assaulted him. He however denied to have assaulted him with a knife. As regards the incident in question, his version was that on that night there was a festivity in the house of his cousin Sajjan and Mahboob (since acquitted) to which he was an invitee. As Rafiouddin of their mohalla was also invited in that function he went to his house which was near the house of the complainant to accompany him. There, on hearing his voice, Shah Alam and Kaisher Khan came out with knives accompanied by Babar Khan and Irshad Khan and started beating him. When he cried aloud Shabbu (appellant), Sharif and Salim who were standing nearby and talking among themselves arrived there. When Shah Alam and his companions attempted to assault Shabbu and others, they in their defence assaulted them. As the ladies of the house had come out then they also sustained minor injuries. Appellant Shabbu, in his statement under Section 313 Dr.P.C. admitted the assault on Faheem Khan in that afternoon but denied his presence at the time of the incident in question.\n To prove its case the prosecution examined sixteen witnesses but no witness was examined on behalf of the defence. On consideration of the evidence adduced the trial Court held that the prosecution case was unworthy of credit.\nOn appeal the learned Judges of the High Court found the evidence of the four eye-witnesses examined by the prosecution, namely, P.Ws. 1, 2, 4 and 5 convincing and the reasons given by the trial Court for disbelieving them and, for that matter, discarding the case of the prosecution were perverse.\n It was urgeo on behalf of the appellants that as the trial Court gave detailed reasons for disbelieving the evidence of the prosecution witnesses the High Court was not justified in interfering with the same even if another reasonably possible view of the evidence in favour of the prosecution might be taken. Having heard the learned counsel at length and seen the judgments of the learned Courts below in the light of the evidence on record, we find that the High Court committed no error or injustice in interfering with the order of acquittal for it has noticed all the salient features of the case in the judgment of the trial Court, discussed them well and disapproved them for cogent and justified reasons. We are in complete agreement with the High Court that the judgment of trial Court was perverse and deserved to be set aside.\n In the context of the respective cases of the parties, it could not be - nor was it - disputed that an incident of assault took place in the night of May 26, 1977 in or around the residential premises of Keramat Ali Khan (P.W.1) in the backdrop of an earlier incident in the afternoon in which Faheem Khan (P.W.6) was injured. It was also not disputed that in the incident in question Shah Alam met with his death while some others including appellant Chand Khan sustained injuries. In that view of the matter the principal question that fell for determination before the learned Courts below was whether it took place within the residential premises of P.W.1 and in the manner as alleged by the prosecution or in the lane outside his house as claimed by the defence. To prove its version of the incident, the prosecution relied, needless to say, upon the evidence of the four eye-witnesses referred to earlier while the defence relied upon the statement of the accused including the appellant Chand Khan made under Section 313 Dr.P.C. and the circumstances appearing on record.\n In negativing the prosecution version the trial Court first held, for reasons given, that the assault on Faheem Khan in the afternoon by Chand Khan could not be a motive for committing the murder of Shah Alam and that no other motive was ascribed by the prosecution. Even if we proceed on the basis that the prosecution failed to prove the genesis or motive and that the above finding of the trial Court in this regard is unexceptionable still then this appeal cannot succeed on that score for proof of motive is not essential for success of a prosecution case where - as in the instant case - the ocular testimony in support of it is convincing and reliable. Indeed, as our discussion to follow will show the findings recorded by the trial Court for discarding the evidence of the four eye witnesses are based either on presumption, surmise and conjecture or on undue and unjustified reliance upon minor and immaterial contradictions.\n In dealing with the evidence of the four eye - witnesses the trial Court first observed that having regard to the incident that took place in that afternoon. Faheem Khan and Shah Alam could only be the targets of the attack of the accused persons and not others, namely, Kaisher Khan, Babar Khan and Irshad Khan as testified by them. It next observed that if their evidence that Shah Alam and the above three persons were sitting together in front of the complainant's house and were talking to each other when the accused arrived there was to be believed, the latter could have caught hold of Shah Alam from out of those persons and put him to death in no time and then gone back. After making the above observations the trial Court held: <SLS> \"It may be that the members of the complainant's house might have come-out at their door on hearing the noise and alarm of this incident and that they might be rebuking and even accusing these accused-persons on their assaulting Shah Alam etc\".\n <SLE> The trial Court also disbelieved the prosecution case as to the manner in which the accused persons entered into the house of the complainant and beat the female members and, in explaining away the injuries found on the persons of Sm. Naeema Parveen and Sm. Raees Begum, observed: <SLS> \"........and truth of the matter appears to be that Sm. Naeema Parveen and Sm. Raees Begum had accidently sustained their injuries in this incident when they had entered in the arena of the fight for defending Shah Alam etc. from the assault of the accused.\"\n <SLE> The High Court brushed aside the first of the above quoted findings of the trial Court with the following comments: <SLS> \"The observation of the Additional Sessions Judge that the accused were likely to single out Shah Alam and to assault him alone in Shah Alam, Irshad Khan, Babar Khan and Kaiser Khan had been found sitting on the cot is misconceived and devoid of sense for Babar Khan the brother of Shah Alam and Kaisher Khan and Irshad Khan who were his close relatives could not have been silent soectators. It is for this reason that they had all sustained injuries around the cot.\"\n <SLE> As regards the other finding the High Court observed that in view of the nature of the injuries sustained by Sm.\n Naeema Parveen and Sm. Raees Begum and in the absence of any suggestion put forward by the defence that those injuries were caused accidentally the criticism of the trial Court was perverse.\n On a close analysis of the materials on record we are of the opinion that the High Court was fully justified in making the above comments. That Kaisher Khan (P.W.2), Babar Khan and Irshad Khan were present at the material time as testified by the four eye witnesses was admitted by the defence. It was also admitted that besides Shah Alam the above three persons as well as lady members of the house sustained injuries. However, according to them, they had beaten Shah Alam and other male members in exercise of their right of private defence and the ladies sustained simple injuries as they had then come out of the house. The trial Court therefore was not at all justified in disbelieving even the presence of Irshad Khan, Babar Khan and Kaisher Khan at the spot. Then again, keeping in view the fact that the injuries sustained by Sm. Naeema Parveen could be caused by a sharp edged weapon only and it being not the case of the defence that they had with them any such weapon the finding of the trial Court that Sm. Naeema Parveen and Sm. Raees Begum had accidentally sustained their injuries must be said to be based on conjecture only.\n Another reason which weighed with the trial Court in disbelieving the prosecution case was that there were discrepancies in evidence as to the details and manner of assault. While detailing those discrepancies the trial Court observed: <SLS> \"According to the complainant Keramat Ali Khan that cot was lying just in front of the main door of his house at a distance of only 2 to 3 steps from the door and the entire beating outside his house had taken place near that cot and the last fatal blow of the chhuri was also inflicted by Shabbu accused on Shah Alam at only 2 or 3 steps in front of his main door. On the other hand, according to Sm. Naeema Parveen, that cot was lying at 6 or 7 steps in front of the main door of the house. According to P.W. Kaisher Khan, to whom that cot belonged, the cot was lying by the side of his chapper, i.e., towards the north- west of the complainant's door and, according to him it was lying at 6 or 7 steps from that door towards the left side. According to P.W. Mardan Mian alias Kallan Mian also, that cot was lying at 7 or 8 steps towards the north- west from the complainant's door. P.W.\n Keraman Ali Khan, at first, stated before me that the accused-persons had beaten Shah Alam etc, towards the east of the cot. Then he stated in the next breath that some of them were beating on one side, while the others were beating on the other side of the cot. Further on he stated that the victims were roaming around that cot, while being beaten, and the samething has been stated by some other witnesses.\"\n <SLE> The discrepancies pointed out by the trial Court are patently of minor character and cannot detract from the evidentiary value of the eye-witnesses. The High Court was, therefore, fully justified in ignoring those discrepancies while dealing with the evidence of the four eye-witnesses.\n The next reason canvassed by the trial Court for disbelieving the prosecution case was that the evidence of P.Ws. Kaisher Khan (P.W.2) and Mardan Mian (P.W.4) only established that some of the accused persons had assaulted Shah Alam and not all. Having recorded the above finding it was imperative for the trial Court to consider the case of the individual accused on their respective merits in the light of other evidence on record and not to outright reject the evidence of the two witnesses in its entirely for it is trite that the principle Single in uno. Falsus in omnibus\"\ndoes not apply to criminal trials and it is the duty of the Court to disengage the truth from falsenood.\n The judgment of the trial Court is replete with similar such findings which the High Court has rightly not accepted as correct. However, to avoid prolixity we refrain from detailing or discussing all of them and refer only to the concluding one to highlight the absurd and perverse approach of the trial Court in dispensing criminal justice. It reads:- <SLS> \"It is quite probable that Shah Alam etc. miont be bearing grudge and ill-will against Chand Khan etc. On account of the noon incident of that day, in which the accused Chand Khan, Ishtiaq Khan and Shabbu had an altercation with P.W. Raheem Khan and had then beaten him; and it may be that Shah Alam etc. might have caught-hold of Chand Khan accused when he had gone to the house of Rafiquddin for calling him and that they might have taken him from there in front of the complainant's house and might have assaulted him with churis. Then, it is also quite probable that the accused Sharif Khan, Salim Khan and Shabbu might have arrived on the spot on hearing the alarm raised by Chand khan accused and that Shah Alam etc. might have tried to assault them also and thereupon they might have assaulted Shah Alam etc. with dandas and chhuri in defence of Chand Khan accused, as also in their own selfdefence. It has come in evidence that the house of Shabbu accused is situated quite near to the road crossing and that the house of Salim Khan accused is also situated in the same locality. So, it is quite possible that the accused Shabbu, Salim Khan and Chand Khan might be standing at the road crossing near the house of Shabbu accused and might be talking to each-other at that time and that they might have reached the sput on hearing the alarm raised by Chand Khan accused.\"\n (emphasis supplied) <SLE> By frequent recourse to and reliance upon the words \"might be\" and \"might have\" in the above quoted passage the trial Court, instead of finding out which of the contending versions was correct and acceptable, gave out a version of its own relying solely on presumption, surmise and conjecture. The trial Court would have been, on a proper discussion and aporaisal of the evidence, fully justified to hold that the prosecution case was unreliable and record an order of acquittal in favour of accused without going into the question as to whether the defence case was true, for burden of proof was upon the prosecution. Equally justified the trial Court would have been in recording such an order if it found the defence case probable. But it was not at all justified to make out a third case entering into the domain of speculation. The High Court was, therefore, right in basing its decision on a fresh and proper appraisal of the evidence leaving aside the obstinate findings of the trial Court. Having gone through the record we do not find any reason to differ from the decision so arrived at by the High Court.\n Mr. Thakur, learned counsel for the appellants, however submitted that even if it was held that the reasons which weighed with the trial Court in recording the order of acquittal were faulty and unsustainable still then the order of acquittal was liable to be upheld for the evidence on record did not Justify the impugned Judgment rendered by the High Court. To bring home his contention Mr. Thakur urged that the incident that took place in the afternoon in which Faheem Khan was assaulted by Chand Khan might have been a motive for the former to assault the latter and not vice- versa. In that context, Mr. Thakur urged, the defence version of the incident in question was more probable than that of the prosecution. This contention of Mr. Thakur need not be gone into for we have earlier observed, and at the risk of repetition may again point out, that as the evidence on record clearly proves that the incident took place in the manner alleged by the prosecution absence or insufficency of motive is immaterial. Mr. Thakur next submitted that the evidence of the prosecution withesses so far as it related to the assault on Sm. Naeema Praveen and Chand Khan inside the house was patently false; firstly. because no blood was found inside the house and secondly because no knife was produced by Sm. Naeema Praveen much less seized by the Investigation Officer. In support of this contention he drew our attention to the evidence of the Investigation Officer (PW 16) wherein he stated that neither he had seen nor shown the vegetable cutting knife used by Sm. Naeema Praveen and that he had found blood at the place which was about 8 steps from the northern main door outside the house of Keramat Ali and nowhere else. We are not impressed by any of the above contentions.\n There is no evidence on record to show that there was profuse bleeding from the injuries sustained by the two ladies and Chand Khan for blood to trickle down to the floor. On the contrary, the find of blood near the threshold of P.W.1's house fits in with the evidence of the eye- witnesses and the nature of injuries sustained by Shah Alam.\nFrom the evidence of Sm. Naeema Praveen (PW 5) we get that when the accused persons started beating the members of their family inside their premises, she her mother and aunt (Raees Begum) started shouting and cursing them. Then, when they found Chand Khan was approaching them they went inside.\nThere Ishtiaq Khan gave two chhuri blows on the left side of her face and Sharik Khan gave two danda blows to her aunt Raees Begum. When she found Chand Khan was about to beat her mother, she struck him with a vegetable cutting knife. The above evidence of P.W.5 stands substantially corroborated by the other three eye-witnesses referred to earlier. Then again the nature of injuries as found by the doctor upon her, Sm. Raees Begum and Chand Khan fits in with her testimony. In our opinion the best corroborative piece of evidence is furnished by the F.I.R. which was lodged by Keramat Ali (P.W.1) on the basis of what he heard from P.W.5. In the F.I.R., which was lodged within two hours of the incident, the substratum of the entire prosecution case finds place including a statement that during the incident Sm. Naeema Praveen had, in defending herself, given a blow to one of the accused with a vegetable cutting knife. In view of the above statement recorded in the F.I.R., the Investigation Officer (P.W.16) ought to have taken steps to seize the knife even if P.W. 5 had not produced it for, one of the essential requisites of a proper investigation is collection of evidence relating to the commission of the offence and that necessarily includes, in a case of assault, seizure of the weapon of offence, but then failure to collect evidence and failure to produce evidence collected during investigation at the trial carry two different connotations and consequences. While, the former may entitle the Court to hold the investigation to be perfunctory or tainted affecting the entire trial in case of the latter the Court may legitimately draw a presumption in accordance with Section 114(g) of the Evidence Act. As the case presented before us comes under the first category of failures we have to find out whether we will be justified in discarding the prosecution case solely for the remissness of the Investigating Officer in seizing the knife. The consistent and reliable evidence of the eye witnesses coupled with the nature of injuries sustained by some of them and Chand Khan and the fact that in the F.I.R. it has clearly been stated that one of the miscreants had been assaulted by a vegetable cutting knife do not persuade us to answer the question in the affirmative. Mr. Thakur lastly submitted that the entire prosecution story was improbable for if really the incident had happened in the manner alleged by it, the persons present in P.W.1's house would have sustained more serious injuries. We do not find any substance in this contention for it is evident that Shah Alam was the main target and the assault on others was carried out to thwart any resistance from those present in the courtyard.\n As all the points raised by Mr. Thakur fail and as on a conspectus of the entire evidence we are fully satisfied that the conclusions drawn by the High Court, particularly regarding the roles played by the two appellants in the riot and the murder of Shah Alam are unexceptionable, we dismiss the appeal. The appellants, who are on bail, shall now surrender to their bail bonds to serve out the sentences.\n"
} |
{
"group": "Tax"
} | [
{
"result": []
}
] | 4,085 | {
"text": "PETITIONER:\nV. VENUGOPALA VARMA RAJAH\n\nVs.\n\nRESPONDENT:\nCOMMISSIONER, AGRICULTURAL INCOME TAX, TRIVANDRUM, KERALA\n\nDATE OF JUDGMENT06/10/1971\n\nBENCH:\nHEGDE, K.S.\nBENCH:\nHEGDE, K.S.\nGROVER, A.N.\nKHANNA, HANS RAJ\n\nCITATION: 1972 SCR (1)1000\n 1972 AIR 404\n 1971 SCC (3) 669\n\nACT:\nKerala Agricultural Income-tax Act, 1950, s. 9(1)-Property\nallotted to a member of family-Income utilised for\ndischarging obligations of assessee-When deemed to be income\nof family as assessee.\n\nHEADNOTE:\nThe assessee was a Hindu undivided family of which the\nappellant was the Kamavan. It possessed agricultural\nproperties. There was a family settlement among all the\nmembers of the family then living. The settlement allotted\nsome properties to some of the male members but did not\nprovide for their devolution. Also the joint status of the\nmembers was not disrupted and the properties allotted for\nthe enjoyment of the various members of the family continued\nto be the properties of the family. The liability to\nmaintain the other male members and the responsibility of\nperforming the marriages of the female members continued to\nbe that of the Karnavan. He was also responsible for the\npayment of land revenue in respect of the family properties\nexcepting some items.\nOn the question whether the income of the properties put in\npossession of the male members under the settlement\ncontinued to be the income of the family and therefore\nliable to tax under the Kerala Agricultural Income-tax Act,\n1950, the department, Tribunal and the High Court on\nreference, held against the assessee.\nDismissing the appeal to this Court,\nHELD : Section 9(1) of the Act is similar to s. 16(1) (c) of\nthe Income-tax Act, 1922. Under the latter section the test\nis that if the income in dispute is considered as having\nbeen applied to discharge an obligation of the assessee, the\nsame is liable to be included in the assessable income of\nthe assessee, but if on the other hand the same bad been\ndiverted by an overriding charge then it is not liable to be\nso included as it ceases to be the assessee's income. [1006\nA-B)\nIn the present case, the arrangement only provided for\nmaintenance and did not give any absolute right in any\nportion of the family properties to any one. It thus\nconferred benefit on the family inasmuch as it was absolved\n\nof the responsibility of maintaining its members. [106-5 G-\nH]\nFurther, it was not even a permanent arrangement and was\nrevocable if there was any substantial change in the\ncircumstances of the family. The properties would 'go back\nto the possession of the Karnavan on the death of the member\nto whom the property was allotted. [1005 C, D, E]\nThe members of the family received the income of the various\nproperties allotted to them on behalf of the family, and\napplied the same in discharge of an obligation of the\nfamily. Therefore, the income reached the hands of the\nfamily as soon as it reached the hands of any of its\nmembers. [1008 F-H]Hence, under s. 9(1) of the Act, the income should be deemed\nto be that of the assessee. [1005 F-G]\nRaja Bejoy Singh Dudhuria v. C.I.T., Bengal, 1 I.T.R. 135\nand Mullick v. C.I.T. Bengal, 6 I.T.R. 206, explained and\napplied.\nC.I.T., Bombay City v. Sitaldas Tirathdas, 41 I.T.R. 367,\nfollowed.\nC.I.T., Bombay v. Makanji Lalji, 5 I.T.R. 539 and C.I.T.,\nBombay City v. Ratilal Nathalal, 25 l.T.R. 426, referred to.\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 266 of 1969.\nAppeal by special leave from the judgment and order dated August 16, 1967 of the Kerala High Court in Income-tax Referred Case No. 44 of 1966.\nC. K. Viswanatha Iyer and K. Jayaram, for the appellant.\nV. A. Seyid Muhammad and A. G. Pudissery, for the respon- dent.\nThe Judgment of the Court was delivered by Hegde, J. The appellant, Venugopala Varma Rajah is the present Rajah of the Vengunad Swaroopan in Palghat District, Kerala State. He is the Karnavan of his Tarwad. He will be hereinafter referred to as the assessee. The predecessor of the appellant, as the then Kamavan of the family, submitted the return for the assessment year 1959-60 under the Kerala Agricultural Income-tax Act (which will hereinafter be referred to as the Act) showing a gross income of Rs.\n1,21,912/- and a net income of Rs. 84,065/60 P. That 'represented the income from the properties held by him under the family Karar dated May 29, 1909. The.\nAgricultural Income-tax Officer overruling the objection of the assessee included in the income returned, the income of the properties which had been put in possession of the junior members of the family under the aforementioned Karar of 1909. The net income so computed was Rs. 2,32,957/- and a tax of Rs. 1,30,672/35 P. was imposed. In appeal the Appellate Authority excluded from the taxable income the income of the properties allotted to the \"Rani Group\" but sustained the addition of the income of the properties allotted for the enjoyment of the male members. Aggrieved by the order of the Appellate Authority, the assessee took up the matter in second appeal to the Appellate Tribunal of the Agricultural Income-tax. The Tribunal rejected the contention of the assessee and dismissed the appeal.\nThereafter at the instance of the assessee, it stated a case under s. 60(1) of the Act and submitted to the High Court for its opinion three questions of law namely L119SupCI/72 \"(1) Whether the findings of the Tribunal that the family karar of 1909 does not constitute a diversion of family income to the various allottees thereunder is correct ?\n (2) Whether the findings of the Tribunal that the provisions of sub-section (1) of sec. 9 of the Act are applicable only to cases of diversion of income and not otherwise is correct ?\n (3) Whether the findings of the Tribunal that the provisions of sub-sec. (1) of sec. 9 of the Act are not applicable to the facts of this case are correct ?\nQuestions Nos. 2 and 3, in our opinion, do not bring out the import of sec. 9 (1) correctly but it is not necessary to go into that aspect as our decision covers the real point in issue.\nThe Reference originally came up for hearing before a Division Bench but as the questions arising for decision were considered to be of importance, the same was referred to a Fun Bench of three judges. The High Court by its judgment dated August 16, 1967 answered Question Nos. 1 and 2 against the assessee. It did not answer the third question as it was of the view that answer to that question was unnecessary in view of its findings on Questions Nos. 1 and 2. Thereafter this appeal was brought by certificate.\nThe assessee in this case is the H.U.F. of which the appellant was the Kamavan at the relevant time. The question for decision is whether the income of the properties put in possession of the male members under the Karar of 1909 continues to be the, income of the family. At present we are not concerned with the income of the properties put in possession of the \"Rani Group\" in view of the decision of the Appellate Authority which had not began appealed against. If the income in dispute continues to be the income of the family then the revenue is justified in bringing the same to tax under the provisions of the Act.\nOn the other hand if that income has ceased to be the income of the family, then the same cannot be brought to tax in the hands of the assessee. Therefore, the sole question is whether that income is the income of the family ?\nSection 9 of the Act provides \"9(1) In computing the total agricultural income of an assessee all agricultural 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 this Act, from asset remaining the property of the settlor or disponer shall be deemed to be the agricultural income of the settlor or disponer and all agricultural income arising to any person by virtue of a revocable transfer of asset shall be deemed to be the agricultural income of the transferor Provided that for the purpose of this sub- section a settlement, disposition or transfer shall be deemed to be revocable if it contains any provision for the transfer directly or indirectly of the agricultural income or asset to the settlor, disponer or transferor or in any way gives the settlor, disponer or transferor a right to reassume power directly or indirectly over the agricultural income or assets : Provided further that the expression settlement, disposition shall, for the purposes of the sub-section include any disposition trust, covenant, agreement or.\n 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 also that this sub-section shall not apply to any agricultural income arising to any person by virtue of a settlement or dispo sition which is not revocable for a period exceeding six years or during the life- time of the person and from which agricultural income the settlor or disponer derives no direct or indirect benefit but that the settlor shall be liable to be, assessed on the said agricultural income as and when the power to revoke arises to him.\"\nA Hindu Undivided Family is a person within the, meaning of s.2(m) of the Act.\nWe shall now proceed to examine the nature of the Karar entered into in 1909. The family of the assessee appears to have been one of the premier land holding families in Malabar. It appears to have had agricultural properties in various places. To the Karar in question all the then living members ( 12 in number) of the family were parties.\nThe properties mentioned in 'A' Sch. to the Karar were set apart for the maintenance, education and other expenses of the female and male members residing in Kalari Kovilagom which is otherwise known as \"Rani Group\". Under the Karar, Karnavan of the Tarwad was to perform the marriage ceremonies of the female members of the Tarwad in accordance with the prevailing conditions and to meetthe expenses thereof. All other expenses of female, and male members residing in Kalari are to be met from the income of the 'A' Sch. properties. The members residing in the Kalari have no right to alienate or encumber the properties allotted to them and all government revenue due in respect of those properties should be paid by them.\nParty No. 2, the second senior most member in the family was to be given 7,000 paras of paddy annually for his maintenance and for this purpose paddy lands yielding 3,500 paras of paddy shown in 'B' Sch. were made over to his possession and Party No. 1, Karnavan of the Tarwad was directed to give to- Party No. 2 from Malayalam era 1085 onwards 3,500 paras of paddy. Further the Karnavan was directed that he should redeem \"Karukakode Challa Nilam\" and make over the same to Party No. 2, but after making over the same to Party No. 2, be was not to pay 3,500 paras of paddy referred to earlier.\n\" C\" Sch. properties yielding an income of 4,750 paras of paddy were allotted for the enjoyment of Party No. 3. He was required to maintain himself from out of their income.\nProperties shown in 'D' Sch. were set apart for the mainte- nance of Party No. 4. The land-revenue of B, C and D Sch.\nproperties was required to be paid by the Karnavan of the tarwad. On the death of Party No. 2 or on his becoming Karnavan of the family, Party No. 3 was to take over the properties allotted for the maintenance of Party No. 2 and Party No. 4 was to take over the properties for the maintenance of Party No. 3. The Karar prohibited the persons who were in possession of the properties allotted for their enjoyment from alienating or encumbering those properties, and if in contravention of those terms, they alienated any of those properties, the Karnavan was entitled to resume the properties treating the alienation as void. Clause 18 of the Karar prohibited the parties in possession of the properties from cutting and selling the kuzhikoors or dismantling the buildings in the properties in their possession. Clause 19 of the Karar prohibited the parties from enhancing the munpattom amounts due to the tenant.\nClause 6 of the Karar provided that all the male members living in the Kalari, on completing the age of 21 should leave the Kalari and thereafter the Kamavan should make arrangements for their maintenance. Karar does not stipulate what arrangement he should make for their maintenance. Therefore it follows that he may maintain them either in the Tarwad house or give them maintenance allowance either in the shape of paddy or cash. It may also be noted that the Karar does not provide as to what would happen if the number of members in the Tarwad substantially increases. One other thing that has got tobe noted is that the Karar is silent as to what would happen to the properties shown in Schs. B, C and D after Parties Nos. 2, 3 and 4 die, all of whom, we were told have died.\nHence Kamavan can take possession of them on behalf of the family after their death.\nOn an examination of the various clauses in the Karar, it is obvious that the joint status of the parties was not disrupted. The arrangement made in the Karar was only an arrangement for providing maintenance. No party was given any absolute right in any portion of the family properties.\nThe properties mentioned in the Karar continued to be the properties of the family. The arrangement made under the Karar cannot even be considered as a permanent arrangement.\nThe properties were not divided on the basis of Thavazies.\nThe liability to maintain the male members, aged more than 21 years excepting Parties Nos. 2, 3 and 4 continued to be that of the Karnavan. The Karar also does not provide for devolution of the properties allotted to Parties 2 to 4.\nHence those properties must necessarily go back to the possession of the Karnavan after those Members die. We have earlier seen that the responsibility of performing the marriage ceremonies of the female members continued to be that of the Karnavan. He is also responsible for the payment of land revenue in respect of the family properties excepting properties included in Sch. (A) to the Karar.\nUnder these circumstances, it is not possible to hold that Karar in question embodied an irrevocable settlement. In the very nature of things, the arrangement made under that Karar must be held to be one which is revocable if there is any substantial change in the circumstances of the family.\nFor our present purpose it is sufficient if we hold that the properties allotted for the enjoyment of the various members of the family under the Karar continued to be the properties of the family.\nIn view of s. 9(1) of the Act in computing the total agricultural income of the H.U.F., all agricultural income arising from the assets remaining the property of the family should be deemed to be the agricultural income of the family. We have earlier come to the conclusion that the agrrangement made under the Karar is revocable if there is substantial change in the circumstances of the family. That arrangement confers benefit on the family inasmuch as it is absolved of the responsibility to maintain its members which, otherwise is its responsibility.\n Section 9 (1) of the Act is similar to s. 16 (1) (c) of the Indian Income-tax Act, 1922. The latter section has come up for consideration by courts. The courts have laid down the test that ifthe income in dispute is considered as having been applied to discharge an obligation of the assessee, the same is liable to be included in the assessable income of the assessee but if on the other hand the same had been diverted by an overriding charge, then it is not liable to be included in the assessable income of the assessee as it ceased to be his income. If we apply this test to the facts of the present case, it is clear that the income in dispute continued to be the income of the family. It was merely applied to discharge an obligation of the family namely the obligation to maintain the junior members of the family.\nAt first sight some of the decided cases on the subject appear to speak in conflicting voices. But on a careful examination, it is possible to find out the dividing line.\nThe earliest decision on the subject is that of the Judicial Committee in Raja Bejoy Singh Dudhuria v. Commissioner of Income-tax, Bengal(1). The, assessee therein succeeded to the family ancestral estate on the death of his father.\nSubsequently his step-mother brought a suit for maintenance against him in which a consent decree was made directing the assessee to make a monthly payment of a fixed sum to his step-mother and declaring that the maintenance was a charge on the ancestral estate in the hands of the assessee. While computing his income, the assessee claimed that the amounts paid by him to the step-mother under the decree should be excluded. That contention was not accepted by the authorities under the Act as well as by the High Court but the Judicial Committee reversing their decision came to the conclusion that though assessee's liability under the decree did not fall within any of the exemptions or allowances conceded in ss. 7 to 12 of the Indian Income-tax Act, yet the sums paid by the assessee to his stepmother were not \"income\" of the assessed at all; the decree of the court by charging the appellant's whole resources with a specific payment to his step-mother had to that extent diverted his income from him and had directed it to his step-mother; to that extent what he received for her was not his income; it was not a case of the application by the appellant of part of his income in a particular way; it was rather the allocation of a sum out of his revenue before it became income in his hands. This decision at the first sight appears to lend support to the assessee's contention but in understanding the ratio of the decision, we must bear in mind the fact that in that case the Advocate-General had abandoned before the High Court the contention that the assessee and his stepmother were members of undivided family and accepted the Position that the appellant was liable to be assessed as an individual and in no other manner. In view of this concession, the payment that had to be made to the step-mother of the assessee became a (1) 1, I.T.R. 135.charge on tile estate even before that estate devolved on him. Therefore what the assessee got was the income of the property minus what he had to pay to his step-mother.\nThe above conclusion of ours receives support from a later decision of the Judicial Committee in P. C. Mullick and anr.\n(Executors) v. Commissioner of Income-tax, Bengal(1).\nTherein a testator had by his will appointed the appellants his executors and had directed them to pay Rs. 10,000/- out of the income of his property on the occasion of his addya sradh for expenses in connection therewith to the person who was entitled to perform the sradh. He had also directed them to pay out of the income of his property the costs of taking out probate of his will. During the year of account the executors had paid Rs. 5,537/- for expenses in connection with the addya sradh and a sum of Rs. 1,25,000/- for probate duty. The question arose whether those payments were deductible in computing the chargeable income. The Judicial Committee held affirming the judgment of the Calcutta High Court, that the payments made for the sradh expenses and the costs of probate could not be excluded in computing the chargeable income. Those were payments made out of the income of the estate coming to the hands of the appellants as executors and in pursuance of obligation imposed by the testator. Their Lordships were of opinion that it was not a case in which a portion of the income was by an overriding title diverted from the person who would otherwise have received it as in Bejoy Singh Dudhuria's (2) case, but a case in which the executors having received the whole income apply a portion of it in a particular way.\nFrom this judgment of the Judicial Committee, it is dear that the true test is that if the income in question is an income of the assessee, the application of the same being not relevant for determining its assessability, it is assessable in his hands but if it is not his income then it cannot form part of his assessable income.\nThe scope of s. 16 (1) (c) of the Indian Income-tax Act, 1922 came up for consideration by this Court in Commissioner of Income-tax, Bombay City v. Sitaldas Tirathdas (3) .\nTherein the assessee Sitaldas Tirathdas of Bombay had many sources of income, chief among them being property, stocks and shares, bank deposits and share in a firm known as M/s.\nSitaldas Tirathdas. He followed the financial year as his accounting year. For the assessment years 1953-54 and 1954- 55, his total income was respectively computed at Rs.\n30,375/- and Rs. 55,160/-. This computation was not disputed by him but he sought to deduct Rs. 1350/- in the first assessment year and a sum of Rs. 18,000/- (1) 1 I.T.R. 135.\n(3) 41, I.T.R. 367.\n(2) 6 I.T.R. 206.in the second assessment year on the-ground that under a decree, he was required to pay these sums as maintenance to his wife and his children. In support of his claim, he relied on the decision of the Judicial Committee in Bejoy Singh Dudhuria's case (supra). This Court rejected that contention observing (at pp. 374 and 375 of the Report) \"In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income.\n Obligations, no doubt, there are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an-amount which a person is obliged to apply out of his income and amount which by the nature of the obligation cannot be said to be a part of the income of the assessee. Where by the obligation income is diverted before it reaches the assessee, it is deductible, but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence, in law, does not follow. It is the first kind of payment which can truly be excused and not the second. The second payment is merely an obligation to pay another a portion of one's own income, which has been received and is since applied. The first is the case in which the income never reaches the assessee who even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable.\"\n Counsel for the assessee tried to lay stress on the observation of this Court that the income should reach the hands of the assessee before it can be considered as his income. According to him in the case before us, the income in dispute never reached the hands of the assessee. We are unable to accept this contention as correct. The income is the income of the family. It reached the hands of the family as soon as it reached the hands of any of the members of the family who were entitled to receive it on behalf of the family. The members of the family received that income on behalf of the family and applied the same in discharge of an obligation of the family. When this Court spoke of the income reaching the hands of the assessee, it did not refer to any physical act. It was dealing with a legal concept a receipt in law. Viewed that way, it is quite clear that the income with which we are concerned in this case was received by the family.\n One other decision on the point in issue which we would like to refer is the decision of the Bombay High Court in Commis- (1) 5 I.T.R. 539.\n sioner of Income-tax, Bombay v. Makanji Lalji(1), wherein Beaumont C.J., speaking for the court held that in computing the income of the H.U.F. for purposes of income-tax, moneys paid to the widow of a deceased coparcener of the- family as maintenance and residence allowance cannot be deducted, even though the amount of such allowance has been fixed by a decree of the Court and has be en made a charge on properties belonging to the family.\n It is not necessary to refer to cases which deal with the diversion of the income of the assessee. The test to be applied for finding out whether there is diversion of income or not is set, out by this Court in Commissioner of Income Tax, Bombay City, V. Ratilal Nathalal(1).\n For the reasons mentioned above this appeal fails and the same is dismissed with costs.\n V.P.S. Appeal dismissed.\n (1) 25 I.T.R. 426.\n "
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"text": "\n CRIMINAL APPELLATE SIDE\n\n CRIMINAL APPEAL NO. 127 OF 1995\n\nSmt. Kusum Sagun Malmanke, .. Appellant"
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"text": "Shri Prashant D. Patil holding for Shri Ranjit V."
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"text": "CORAM : S.S. PARKAR, &\n ANOOP V.MOHTA, JJ.\n\n DATE : 19TH APRIL, 2005."
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"text": "The appellant-accused no.1 was charged for the offences punishable under Section 201, 302 r/w section 34 of Indian Penal Code (IPC), along with the original accused Nos. 2 and 3."
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"text": "Therefore, this appeal against the order of conviction and sentence to undergo imprisonment for life."
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"text": "\n 2. The appellant is the mother of Kumar (Accused No.2) and Parshuram (accused No.3)."
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"text": "The appellant married to Sagun Tatoba Malmanke ( the deceased husband)."
}
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{
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"text": "This was her second marriage."
}
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{
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"text": "Above two accused, Laxmi (the deceased daughter) and P.W.10 Renuka and P.W. 9 Deepak borned of her first marriage."
}
},
{
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"text": "The appellant therefore, on the date of incident dated 27/1/1994, was the mother of 3 sons and 2 daughters."
}
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{
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"text": "\n All were residing together with the deceased in the house situated at Miraj."
}
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{
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"text": "\n 3. The deceased daughter, Laxmi had illicit relations with the deceased husband, Sagun."
}
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{
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"text": "Eight days prior to the date of incident, the deceased Sagun and the deceased Laxmi had left the house and they were roaming around in the village."
}
},
{
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"text": "On 26/1/1994 at about 9 p.m.,P.W. 9 Deepak had noticed them."
}
},
{
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"text": "The appellant rushed there and noticed Mangalsutra around the neck of the deceased Laxmi and when enquired, they informed about their marriage."
}
},
{
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],
"start": 2069,
"text": "However, the appellant brought them to the house in Rickshaw, which was noticed by the neighbour, P.W. 4, Gopal."
}
},
{
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],
"start": 2182,
"text": "At about 1 a.m. on 27/1/1994, Gopal (P.W. 4) heard noise of quarrel from the house of the accused and the deceased."
}
},
{
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"id": "e27d0ed458f74c5da7b422fa7626291d",
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"labels": [
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],
"start": 2298,
"text": "As such quarrels were routine and as it was also stopped, Gopal P.W. 4 alongwith other neighbourers returned back to their respective homes."
}
},
{
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"id": "d30d6ed95eb94d6693afa2c7de833a0e",
"to_name": null,
"type": null,
"value": {
"end": 2591,
"labels": [
"FAC"
],
"start": 2439,
"text": "The appellant after 2 hours, on the same day at about 3 a.m. knocked the door of Gopal, P.W. 4 and requested him to accompany her to the police station."
}
},
{
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"id": "067d3572f14b442dac13ae395029bc79",
"to_name": null,
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"value": {
"end": 2690,
"labels": [
"FAC"
],
"start": 2592,
"text": "The appellant had also asked one Narsu, another neighbour, to accompany her to the police station."
}
},
{
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"id": "ba098b7ad41c4b7691aceb08b221cce2",
"to_name": null,
"type": null,
"value": {
"end": 2779,
"labels": [
"FAC"
],
"start": 2691,
"text": "The appellant picked up an blood stained axe, which was kept in the corner of her house."
}
},
{
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"id": "8ea7f9732ab844a296d73cb8b94660a5",
"to_name": null,
"type": null,
"value": {
"end": 2824,
"labels": [
"FAC"
],
"start": 2780,
"text": "They went to the rickshaw stand by walking ."
}
},
{
"from_name": null,
"id": "60132b3b341946a3a39686509df81b8c",
"to_name": null,
"type": null,
"value": {
"end": 3028,
"labels": [
"FAC"
],
"start": 2825,
"text": "The appellant informed that, she along with her son accused Nos. 2 and 3 had assaulted the deceased husband Sagun and deceased daughter Laxmi with an axe, gupti, knife, and wooden handle and killed them."
}
},
{
"from_name": null,
"id": "fe2234af2e4c43928998a50b1cecb54a",
"to_name": null,
"type": null,
"value": {
"end": 3086,
"labels": [
"FAC"
],
"start": 3029,
"text": "The clothes of the appellant were stained with the blood."
}
},
{
"from_name": null,
"id": "a9194edf054b4628bf19691beaa40c53",
"to_name": null,
"type": null,
"value": {
"end": 3137,
"labels": [
"FAC"
],
"start": 3087,
"text": "They went to the Miraj Police station by Rickshaw."
}
},
{
"from_name": null,
"id": "2698fa48d6504b4db27090decc7faae9",
"to_name": null,
"type": null,
"value": {
"end": 3259,
"labels": [
"FAC"
],
"start": 3138,
"text": "P.W. 4 and Narsu returned back from the compound of Police station, whereas the appellant went inside the police station."
}
},
{
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"id": "9fe8e694ce5a4320a9206947b7aa1e79",
"to_name": null,
"type": null,
"value": {
"end": 3351,
"labels": [
"FAC"
],
"start": 3260,
"text": "P.W. 14, Madan, Police Inspector, reduced into writing her report Exh.33 at about 4.45 a.m."
}
},
{
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"id": "a90edee68073415689447c12aebc0301",
"to_name": null,
"type": null,
"value": {
"end": 3427,
"labels": [
"FAC"
],
"start": 3352,
"text": "The appellant put her thumb-impression and it was also endorsed by P.W. 14."
}
},
{
"from_name": null,
"id": "50aa3ca1321d4728a9fe471f90a4ad5a",
"to_name": null,
"type": null,
"value": {
"end": 3487,
"labels": [
"FAC"
],
"start": 3427,
"text": "\nTherefore, on 27/1/1994, offence was registered as charged."
}
},
{
"from_name": null,
"id": "c48ed8c9829e4df6b826eb56f4643d39",
"to_name": null,
"type": null,
"value": {
"end": 3662,
"labels": [
"FAC"
],
"start": 3488,
"text": "The blood stained axe, brought by the appellant, which was used for the commission of crime was seized in presence of P.W.8, Panch Mustak Jamadar under the panchanama Exh.14."
}
},
{
"from_name": null,
"id": "d27f390c26ca4d31b7fb87e667775bac",
"to_name": null,
"type": null,
"value": {
"end": 3778,
"labels": [
"FAC"
],
"start": 3664,
"text": "4. P.W. 14 Madan, P.I. visited the spot and noticed both the dead bodies in the residential house of the accused."
}
},
{
"from_name": null,
"id": "469a59b51ad348e48f55743aa0f7336d",
"to_name": null,
"type": null,
"value": {
"end": 3812,
"labels": [
"FAC"
],
"start": 3779,
"text": "The dead body of Sagun was naked."
}
},
{
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"id": "fdc78742c5bf42f09caf402ae6f6cf56",
"to_name": null,
"type": null,
"value": {
"end": 3902,
"labels": [
"FAC"
],
"start": 3813,
"text": "There were several injuries on the head, as well as, vital parts of both the dead bodies."
}
},
{
"from_name": null,
"id": "1d373b84f69a4c4e9465a5df7e068fad",
"to_name": null,
"type": null,
"value": {
"end": 3947,
"labels": [
"FAC"
],
"start": 3903,
"text": "The inquest panchanma was drawn Exh.8 and 9."
}
},
{
"from_name": null,
"id": "2fb129bdd6ba4931860c4a5ad6eccb54",
"to_name": null,
"type": null,
"value": {
"end": 4025,
"labels": [
"FAC"
],
"start": 3948,
"text": "The photographs were taken Exh.\n 25 in presence of P.W. 1, Kadar Babu Sayyed."
}
},
{
"from_name": null,
"id": "89308368b1684d0e8313490be6a658cc",
"to_name": null,
"type": null,
"value": {
"end": 4068,
"labels": [
"FAC"
],
"start": 4026,
"text": "The panchanma Exh.12 was drawn by P.W. 14."
}
},
{
"from_name": null,
"id": "3bda3f2fd41b4d198cacac3c696ddd2c",
"to_name": null,
"type": null,
"value": {
"end": 4181,
"labels": [
"FAC"
],
"start": 4069,
"text": "Several other articles including knife, gupti, wooden handle scattered and lying on the ground were also seized."
}
},
{
"from_name": null,
"id": "d9193219fa5745b9a71f25eb1a5750c4",
"to_name": null,
"type": null,
"value": {
"end": 4261,
"labels": [
"FAC"
],
"start": 4182,
"text": "Both the bodies were sent for post mortem examination to Civil Hospital,Sangli."
}
},
{
"from_name": null,
"id": "e44244e629aa42e9ae73adf665e89b85",
"to_name": null,
"type": null,
"value": {
"end": 4365,
"labels": [
"FAC"
],
"start": 4262,
"text": "Dr. Sanjay S. Bhave (P.W. 15) (M,.O.), conducted the post mortem examination on both these dead bodies."
}
},
{
"from_name": null,
"id": "238046627cae47ab9a3a9953e07e065f",
"to_name": null,
"type": null,
"value": {
"end": 4465,
"labels": [
"FAC"
],
"start": 4366,
"text": "The report and letter Exh.47, 48 and death certificates and letter Exh.49 and 50 are on the record."
}
},
{
"from_name": null,
"id": "b5371a74372645f5bb77ff029de6fb58",
"to_name": null,
"type": null,
"value": {
"end": 4595,
"labels": [
"FAC"
],
"start": 4466,
"text": "The blood stained clothes, blouse, saree and petticoat were also seized in presence of PW.3 Bharat Gurav by P.W. 14, P.I. Chavan."
}
},
{
"from_name": null,
"id": "c4ed2a3d22ec43ad857c2034e0fb34a5",
"to_name": null,
"type": null,
"value": {
"end": 4642,
"labels": [
"FAC"
],
"start": 4596,
"text": "The statements of the witnesses were recorded."
}
},
{
"from_name": null,
"id": "7e3300bace7741608dddc150fc58f61a",
"to_name": null,
"type": null,
"value": {
"end": 4713,
"labels": [
"FAC"
],
"start": 4642,
"text": "The articles seized were sent to the Chemical Analyser for examination."
}
},
{
"from_name": null,
"id": "0b8a21c19e5041efba73ea8521af6104",
"to_name": null,
"type": null,
"value": {
"end": 4768,
"labels": [
"FAC"
],
"start": 4714,
"text": "The Chemical Analyser's report is filed on the record."
}
},
{
"from_name": null,
"id": "a4ad005f86444254bf35466379d3100c",
"to_name": null,
"type": null,
"value": {
"end": 4906,
"labels": [
"FAC"
],
"start": 4769,
"text": "P.W. 16, Shri Jadhav, Special Judicial Magistrate recorded the statement under Section 164 of Cr.P.C. of P.W. 9 Deepak Malmanke (Exh.55)."
}
},
{
"from_name": null,
"id": "bd96d2608be64558982bfa5fe8dfa3da",
"to_name": null,
"type": null,
"value": {
"end": 4982,
"labels": [
"FAC"
],
"start": 4907,
"text": "The charge sheet against all the accused including the appellant was filed."
}
},
{
"from_name": null,
"id": "d6dd6dd50b7f402e8601a2243bbc5c5d",
"to_name": null,
"type": null,
"value": {
"end": 5031,
"labels": [
"FAC"
],
"start": 4983,
"text": "The charges were framed against all the accused."
}
},
{
"from_name": null,
"id": "426c5971f8ab4ddebebf7a428e3da197",
"to_name": null,
"type": null,
"value": {
"end": 5143,
"labels": [
"FAC"
],
"start": 5032,
"text": "All the accused have denied the charges levelled against them and pleaded not guilty and claimed for the trial."
}
},
{
"from_name": null,
"id": "aaffb980b8894c788b0b562f6d87edac",
"to_name": null,
"type": null,
"value": {
"end": 5186,
"labels": [
"FAC"
],
"start": 5144,
"text": "The prosecution has examined 15 witnesses."
}
},
{
"from_name": null,
"id": "5d385f36995f4f5dadc816ac99b5d558",
"to_name": null,
"type": null,
"value": {
"end": 5219,
"labels": [
"FAC"
],
"start": 5187,
"text": "No defence witness was examined."
}
},
{
"from_name": null,
"id": "ae7423f4144549fda3769adef51c875d",
"to_name": null,
"type": null,
"value": {
"end": 5316,
"labels": [
"FAC"
],
"start": 5220,
"text": "The statements, under Section 313 of Cr.P.C. of each accused, were recorded vide Exh.2,3, and 4."
}
},
{
"from_name": null,
"id": "6bd883cf4b9b4a0a990f4895c185e894",
"to_name": null,
"type": null,
"value": {
"end": 5450,
"labels": [
"RLC"
],
"start": 5316,
"text": "\n 5. The learned Judge after considering the evidence and material placed on the record, acquitted the original accused Nos. 2 and 3."
}
},
{
"from_name": null,
"id": "08808b0e8ebb450a84b232569e40b463",
"to_name": null,
"type": null,
"value": {
"end": 5774,
"labels": [
"RLC"
],
"start": 5451,
"text": "The appellant-original accused No.1 was acquitted for the offence punishable under section 201 of IPC but convicted for the offence punishable under Section 302 r/w 34 of IPC and sentenced her to undergo imprisonment for life and to pay fine of Rs. 5,000/-, in default to undergo further rigorous imprisonment for one year."
}
},
{
"from_name": null,
"id": "dec025a052a049b8ba4f2cfe8702729b",
"to_name": null,
"type": null,
"value": {
"end": 5912,
"labels": [
"FAC"
],
"start": 5776,
"text": "6. Heard Shri Prashant D. Patil, the learned Counsel for the appellant and Shri D.R. More, the learned A.P.P. for the Respondent/State."
}
},
{
"from_name": null,
"id": "0c592059bd554c61820348915e57863f",
"to_name": null,
"type": null,
"value": {
"end": 6331,
"labels": [
"ARG_PETITIONER"
],
"start": 5913,
"text": "The appellant's Counsel has relied on 1989 Supp. (2) SCC 147 (Ajit Singh V. State of Punjab) and basically, submitted that the offence was committed by the appellant in grave and sudden provocation, as she found her second husband and her own daughter from first husband, in compromising position and therefore, submitted to consider the provisions of Section 304 (I) of IPC in the facts and circumstances of the case."
}
},
{
"from_name": null,
"id": "0dd3c9428bc640fdaf8c78edac7a670f",
"to_name": null,
"type": null,
"value": {
"end": 6432,
"labels": [
"ARG_PETITIONER"
],
"start": 6332,
"text": "He has also relied on 1993 Supp. (1) SCC 719 (Raghavan Achari Alias Njoonjappan V. State of Kerala)."
}
},
{
"from_name": null,
"id": "742cd143b4fa4bd89ec0b394e44054bd",
"to_name": null,
"type": null,
"value": {
"end": 6538,
"labels": [
"ARG_RESPONDENT"
],
"start": 6433,
"text": "The learned A.P.P. has supported the Judgment and order on all counts and submitted to maintain the same."
}
},
{
"from_name": null,
"id": "1d51168f6a094f6e9562d2ab62a3506a",
"to_name": null,
"type": null,
"value": {
"end": 6963,
"labels": [
"ANALYSIS"
],
"start": 6538,
"text": "\n 7. After considering the material, as well as, the evidence on the record, we are also of the view, that the appellant, in the facts and circumstances of the case, under grave provocation, murdered her second husband, Sagun and her own daughter, Laxmi (from her first husband), as they had developed illicit relations and at the relevant time at midnight on 26/1/1994, the appellant had seen them in compromising position."
}
},
{
"from_name": null,
"id": "dc6e38c915b2487387807efbfa5f1c25",
"to_name": null,
"type": null,
"value": {
"end": 7179,
"labels": [
"ANALYSIS"
],
"start": 6964,
"text": "There is no much dispute about the death of both the deceased on the spot, because of severe injuries on the vital parts of the bodies of the deceased, caused by, the duly seized blood stained axe, by the appellant."
}
},
{
"from_name": null,
"id": "e240c585a4da4ed4853793e2bea27412",
"to_name": null,
"type": null,
"value": {
"end": 7304,
"labels": [
"ANALYSIS"
],
"start": 7180,
"text": "The original accused Nos. 2 and 3 were acquitted and there is no counter appeal by the State against the order of acquittal."
}
},
{
"from_name": null,
"id": "19d07e41a37248c98eb5d5665e5032f2",
"to_name": null,
"type": null,
"value": {
"end": 7352,
"labels": [
"ANALYSIS"
],
"start": 7305,
"text": "The acquittal order therefore, remained intact."
}
},
{
"from_name": null,
"id": "512a92893a9940b6a766bc549a1697af",
"to_name": null,
"type": null,
"value": {
"end": 7462,
"labels": [
"ANALYSIS"
],
"start": 7353,
"text": "The prosecution has proved beyond doubt that the appellant assaulted and killed the deceased Sagun and Laxmi."
}
},
{
"from_name": null,
"id": "91e3e4f4c0984bf785db77ac667a2d77",
"to_name": null,
"type": null,
"value": {
"end": 7607,
"labels": [
"RLC"
],
"start": 7463,
"text": "The post mortem report, certificate of Doctor and multiple injuries, as recorded and observed by the learned Judge also support the prosecution."
}
},
{
"from_name": null,
"id": "0847afa954e842c9bdc6eda12258ef78",
"to_name": null,
"type": null,
"value": {
"end": 7753,
"labels": [
"RLC"
],
"start": 7608,
"text": "The learned Judge has convicted appellant by holding that there was predetermination and design and based on that the said offence was committed."
}
},
{
"from_name": null,
"id": "0969d53612434cbe9640c16aa7acaf38",
"to_name": null,
"type": null,
"value": {
"end": 7819,
"labels": [
"RLC"
],
"start": 7754,
"text": "Therefore, discarded the defence of sudden and grave provocation."
}
},
{
"from_name": null,
"id": "d062e9524cea4d1897267b2e4395cfe2",
"to_name": null,
"type": null,
"value": {
"end": 7961,
"labels": [
"ANALYSIS"
],
"start": 7819,
"text": "\n 8. The spot panchanma Exh.10, Scene of offence Exh.12,A inquest panchanma Exhs. 9 shows that the dead body of the deceased Sagun was naked."
}
},
{
"from_name": null,
"id": "fcca54e08dd64dc1a0ceee099f33f286",
"to_name": null,
"type": null,
"value": {
"end": 8031,
"labels": [
"ANALYSIS"
],
"start": 7962,
"text": "The illicit relation of the deceased must be bothering the appellant."
}
},
{
"from_name": null,
"id": "a53e407bfdd5491fb7c4fbd5f00dea98",
"to_name": null,
"type": null,
"value": {
"end": 8084,
"labels": [
"ANALYSIS"
],
"start": 8032,
"text": "Both the deceased were away from home for some days."
}
},
{
"from_name": null,
"id": "a7d8156338ee413e8b9e99cbd623d83d",
"to_name": null,
"type": null,
"value": {
"end": 8191,
"labels": [
"ANALYSIS"
],
"start": 8085,
"text": "The appellant's son Deepak noticed them in the garden and they were brought back to the house in question."
}
},
{
"from_name": null,
"id": "2e1f777a56af4cb482f3a84f45d7df4b",
"to_name": null,
"type": null,
"value": {
"end": 8302,
"labels": [
"ANALYSIS"
],
"start": 8192,
"text": "There was quarrel at about 1 a.m. between 26/1/1994 and 27/1/1994 and it was noticed by the by Gopal (P.W. 4)."
}
},
{
"from_name": null,
"id": "98dd97cba31346b9b6ff8f0d28ba9039",
"to_name": null,
"type": null,
"value": {
"end": 8456,
"labels": [
"ANALYSIS"
],
"start": 8303,
"text": "The Mangalsutra around the neck of the deceased Laxmi and open declaration about their marriage with the second husband was also troubling the appellant."
}
},
{
"from_name": null,
"id": "c29fae739989403996ef8cfe08231119",
"to_name": null,
"type": null,
"value": {
"end": 8566,
"labels": [
"ANALYSIS"
],
"start": 8457,
"text": "Their such illicit relations cannot be said to be normal circumstance for the appellant at the relevant time."
}
},
{
"from_name": null,
"id": "65b944086da849c09a1a320f1e2ed632",
"to_name": null,
"type": null,
"value": {
"end": 8742,
"labels": [
"ANALYSIS"
],
"start": 8567,
"text": "Above this, on the same night, when she saw her second husband Sagun in compromising position with the eldest daughter Laxmi, that must have provoked her to commit such crime."
}
},
{
"from_name": null,
"id": "f743b9158e9b426da127d28e841451ce",
"to_name": null,
"type": null,
"value": {
"end": 8908,
"labels": [
"ANALYSIS"
],
"start": 8743,
"text": "Merely because, some knife was purchased on the same date that itself cannot be the reason to hold that there was conspiracy or plan to commit the crime in question."
}
},
{
"from_name": null,
"id": "64947131204b4494a9db818b68ec64d8",
"to_name": null,
"type": null,
"value": {
"end": 9111,
"labels": [
"ANALYSIS"
],
"start": 8908,
"text": "\n 9. One cannot over look, in this back ground, the mental condition of the appellant, specially, when the appellant has 2 unmarried daughters and 3 unmarried sons staying together at the relevant time."
}
},
{
"from_name": null,
"id": "644663c343e4482cb30992ac28748472",
"to_name": null,
"type": null,
"value": {
"end": 9304,
"labels": [
"ANALYSIS"
],
"start": 9112,
"text": "Whatever may be the circumstances, there is no doubt that she had committed this heinous crime, but immediately made the confession and got arrested herself in the police station on 27/1/1994."
}
},
{
"from_name": null,
"id": "2588752cae91436e9f2a5ec22448f4d2",
"to_name": null,
"type": null,
"value": {
"end": 9521,
"labels": [
"ANALYSIS"
],
"start": 9305,
"text": "The appellant-accused before reaching to the Police Station, when enquired, informed to Gopal, P.W. 4, about the crime and as suggested by him she went to the police station, and informed the same also to the police."
}
},
{
"from_name": null,
"id": "472e322004e54a9d8fbfac571d7ee079",
"to_name": null,
"type": null,
"value": {
"end": 9753,
"labels": [
"ANALYSIS"
],
"start": 9521,
"text": "\n 10. The learned Judge, rightly came to the conclusion that, the confession made before the police officer (P.W. 14) by the accused, cannot be used against her, in view of the bar created under Section 25 of the Evidence Act."
}
},
{
"from_name": null,
"id": "9dce74e3a9af4434b0474d2cde1ea596",
"to_name": null,
"type": null,
"value": {
"end": 9828,
"labels": [
"PRE_RELIED"
],
"start": 9754,
"text": "The Apex Court in AIR, 1966 S.C.\n 119\" (Aghnoo Nagesia Vs. State of Bihar)"
}
},
{
"from_name": null,
"id": "2e8529643cf24eaeb660adea0bc32642",
"to_name": null,
"type": null,
"value": {
"end": 10020,
"labels": [
"PRE_RELIED"
],
"start": 9829,
"text": "has held that such admission of an incriminating fact including all other admission of related incriminating fact of the offence, fall within the purview of section 25 of Indian Evidence Act."
}
},
{
"from_name": null,
"id": "d3d87cc99ad24acea948c46433d3bee7",
"to_name": null,
"type": null,
"value": {
"end": 10116,
"labels": [
"PRE_RELIED"
],
"start": 10021,
"text": "The same is reiterated in 1972 Cr.L.J.\n 626 ( Khatri Hemraj Amulakh Vs. The State of Gujrat).\n "
}
},
{
"from_name": null,
"id": "804f8bcf313446d2b296d5562e05cb84",
"to_name": null,
"type": null,
"value": {
"end": 10176,
"labels": [
"PRE_RELIED"
],
"start": 10116,
"text": "The Apex Court has observed in the same Judgment as follows."
}
},
{
"from_name": null,
"id": "60d77b81d94f425c8fe5a2d401871cfb",
"to_name": null,
"type": null,
"value": {
"end": 10426,
"labels": [
"PRE_RELIED"
],
"start": 10176,
"text": "\n \"The part of the information as related distinctly to the fact discovered in consequence of the information could also be admitted into evidence under Section 27 of the Indian Evidence Act, if the other conditions of that section were satisfied.\"\n "
}
},
{
"from_name": null,
"id": "f8b529a59b3442df8d00f7c15b588801",
"to_name": null,
"type": null,
"value": {
"end": 10706,
"labels": [
"ANALYSIS"
],
"start": 10426,
"text": "The learned Judge therefore, rightly relied on Exh.33, the FIR lodged by the appellant, by considering the provisions of section 8 of the Indian Evidence Act, in reference to the conduct of the appellant including visiting the police station on her own accord and made the report."
}
},
{
"from_name": null,
"id": "c58e56361ff2451bbd5e568328ea3324",
"to_name": null,
"type": null,
"value": {
"end": 10836,
"labels": [
"ANALYSIS"
],
"start": 10707,
"text": "The information given by the appellant, which is followed by the seizure of the blood stained axe (Exh. 14) can be taken note of."
}
},
{
"from_name": null,
"id": "21fc4f66ed1f45609877863ecea1b5f5",
"to_name": null,
"type": null,
"value": {
"end": 11044,
"labels": [
"ANALYSIS"
],
"start": 10837,
"text": "The testimony of P.W. 4, Gopal; P.W. 14, P.I, Madan Chavan (Exh.33) and in addition to that statement made by he appellant under Section 313 of Cr.P.C. was rightly relied and considered by the learned Judge."
}
},
{
"from_name": null,
"id": "d6acc41987084bc2bf2434ef32c7e367",
"to_name": null,
"type": null,
"value": {
"end": 11207,
"labels": [
"ANALYSIS"
],
"start": 11045,
"text": "In view of the corroboration of this material particulars, we are also of the view, that the prosecution has proved the links of the events against the appellant."
}
},
{
"from_name": null,
"id": "b0311730c0fd450990b807e48e21356f",
"to_name": null,
"type": null,
"value": {
"end": 11366,
"labels": [
"ANALYSIS"
],
"start": 11208,
"text": "The panch, Mustaq, P.W. 8 of the panchanama Exh. 14, also support the fact that in his presence P.W. 14, I.O. had seized blood stained axe from the appellant."
}
},
{
"from_name": null,
"id": "fd92bde102814bad9118c3c70e40b524",
"to_name": null,
"type": null,
"value": {
"end": 11446,
"labels": [
"ANALYSIS"
],
"start": 11367,
"text": "The contents of FIR Exh.33, and all these aspects are also rightly relied upon."
}
},
{
"from_name": null,
"id": "0b8efa767783497eaf57889be75b2b34",
"to_name": null,
"type": null,
"value": {
"end": 11652,
"labels": [
"ANALYSIS"
],
"start": 11447,
"text": "We cannot over look the fact of recovery of the weapon (blood stained axe) from the possession of the appellant and as the same was also independently established by the evidence of P.Ws. 4, 8 and 14.\n 11."
}
},
{
"from_name": null,
"id": "c391d4e366b24b688be31d6e92903b75",
"to_name": null,
"type": null,
"value": {
"end": 11842,
"labels": [
"ANALYSIS"
],
"start": 11653,
"text": " The prosecution according to us and as observed by the learned Sessions Judge has proved the Commission of the offence by the appellant and her effective participation in the said offence."
}
},
{
"from_name": null,
"id": "c12cf61aebb8476a8cd7bae6fb945611",
"to_name": null,
"type": null,
"value": {
"end": 12044,
"labels": [
"ANALYSIS"
],
"start": 11843,
"text": "Apart from the extra Judicial confession by the appellant to P.W. 4, there are corroborative evidence, independently, on the record, to support the said extra judicial confession made by the appellant."
}
},
{
"from_name": null,
"id": "363d3f95184b4f47990aa6b960b75709",
"to_name": null,
"type": null,
"value": {
"end": 12162,
"labels": [
"ANALYSIS"
],
"start": 12045,
"text": "The possibility of disclosing this fact to P.W. 4, who was at the relevant time was neighbourer, cannot be discarded."
}
},
{
"from_name": null,
"id": "84b12b0228f4431d8ee092b51c6a7513",
"to_name": null,
"type": null,
"value": {
"end": 12313,
"labels": [
"ANALYSIS"
],
"start": 12163,
"text": "There is a observation by the learned Judge also that the appellant was prostitute and the acquaintance of the appellant with Gopal was not unnatural."
}
},
{
"from_name": null,
"id": "bf2cce3e93e2493d815e1d1cf39e682d",
"to_name": null,
"type": null,
"value": {
"end": 12380,
"labels": [
"ANALYSIS"
],
"start": 12314,
"text": "Gopal (P.W.4) was staying with his keep in the neighbouring house."
}
},
{
"from_name": null,
"id": "eb1d6eced7b745fd8f0f92b946432cc6",
"to_name": null,
"type": null,
"value": {
"end": 12525,
"labels": [
"ANALYSIS"
],
"start": 12381,
"text": "The immediate conduct of the appellant, after committing the crime and asking for help from P.W.. 4 and one other neighbour cannot be discarded."
}
},
{
"from_name": null,
"id": "e9d15de7edc84c379247c20470cb0fb7",
"to_name": null,
"type": null,
"value": {
"end": 12724,
"labels": [
"ANALYSIS"
],
"start": 12525,
"text": "\n 12. There is no doubt that such confessional statement cannot be the basis of conviction, and or even also the extra judicial confession, unless, it is corroborated by the other piece of evidence."
}
},
{
"from_name": null,
"id": "df20a7bf873444399cd1ebfd9fc2b805",
"to_name": null,
"type": null,
"value": {
"end": 12856,
"labels": [
"ANALYSIS"
],
"start": 12725,
"text": "In the facts and circumstance of the case, we are of the view, that the corroborative circumstances are also against the appellant."
}
},
{
"from_name": null,
"id": "aab8c5b66f5b4e4fa20a3e99c8a0b39f",
"to_name": null,
"type": null,
"value": {
"end": 13299,
"labels": [
"ANALYSIS"
],
"start": 12857,
"text": "Merely because, P.W. 9, Deepak son the appellant; P.W. 10, Renuka, daughter of the appellant were declared hostile, still, as both these witnesses, as observed rightly by the learned Sessions Judge, have deposed in their examination-in-chief, the facts prior to the incident, specially, the fact that Deepak ,P.W.\n9 noticed both the deceased Sagun and Laxmi in Ambedkar Garden, Miraj, and they were absent from the house for more than 8 days."
}
},
{
"from_name": null,
"id": "6a9419f1b60c4b51b18e8fa3184d810f",
"to_name": null,
"type": null,
"value": {
"end": 13433,
"labels": [
"ANALYSIS"
],
"start": 13300,
"text": "Based upon the said information, the appellant with others went to the spot and brought both the deceased to the house on 26/11/1994."
}
},
{
"from_name": null,
"id": "cf1fe235869649b3aeeda5df7ad75567",
"to_name": null,
"type": null,
"value": {
"end": 13560,
"labels": [
"ANALYSIS"
],
"start": 13434,
"text": "P.W. 4 (Gopal) noticed that the deceased Sagun and Laxmi and appellant alighted from the rickshaw on 26/1/1994 at about 3 p.m."
}
},
{
"from_name": null,
"id": "2b7ec84861f54d4ab77def7ee66c49d2",
"to_name": null,
"type": null,
"value": {
"end": 13710,
"labels": [
"ANALYSIS"
],
"start": 13561,
"text": "This fact was corroborated by P.W. 9, Deepak and P.W. 10, Renuka, who were also residing along with the deceased and the appellant in the same house."
}
},
{
"from_name": null,
"id": "a839cb162415421ea11680af25d80038",
"to_name": null,
"type": null,
"value": {
"end": 13784,
"labels": [
"ANALYSIS"
],
"start": 13711,
"text": "This circumstantial evidence therefore, also linked the prosecution case."
}
},
{
"from_name": null,
"id": "eb36bb275dc742e7800ba8468949f6a0",
"to_name": null,
"type": null,
"value": {
"end": 13893,
"labels": [
"ANALYSIS"
],
"start": 13784,
"text": "\n 13. The presence of original accused Nos. 2 and 3 was not supported and or proved by any of the witnesses."
}
},
{
"from_name": null,
"id": "429931c9de79460bbf8547add2d86778",
"to_name": null,
"type": null,
"value": {
"end": 14049,
"labels": [
"ANALYSIS"
],
"start": 13893,
"text": "\n 14. On 27/1/1994 at about 3 a.m., as noted above, P.W. 4, Gopal on the request of appellant accompanied her upto the compound wall of the police station."
}
},
{
"from_name": null,
"id": "3e8f41ed35304e2db130b325d00f4cec",
"to_name": null,
"type": null,
"value": {
"end": 14147,
"labels": [
"ANALYSIS"
],
"start": 14050,
"text": "P.W.\n 12 also gave drinking water to the appellant and asked her husband, Narsu to accompany her."
}
},
{
"from_name": null,
"id": "b9a610f89d2e4648af3f2419dfeeaf00",
"to_name": null,
"type": null,
"value": {
"end": 14244,
"labels": [
"ANALYSIS"
],
"start": 14148,
"text": "The blood stained clothes, blood stained weapon i.e. axe which were seized from appellant. No.1."
}
},
{
"from_name": null,
"id": "571604317c8f4d2c904f48ceea53eb32",
"to_name": null,
"type": null,
"value": {
"end": 14435,
"labels": [
"ANALYSIS"
],
"start": 14245,
"text": "The Chemical Analyser's reports Exh.37 to 40 disclose that the blood group of the deceased was found on the seized blood stained clothes, apart from the clothes of the appellant and the axe."
}
},
{
"from_name": null,
"id": "9119c18c974b424baf0f80b3272a9ee2",
"to_name": null,
"type": null,
"value": {
"end": 14518,
"labels": [
"ANALYSIS"
],
"start": 14436,
"text": "All these corroborative evidence, therefore, connect the appellant with the crime."
}
},
{
"from_name": null,
"id": "efa30af9678e482a8cdbb54ff246e629",
"to_name": null,
"type": null,
"value": {
"end": 14731,
"labels": [
"ANALYSIS"
],
"start": 14519,
"text": "P.W. 15, Dr.\nSanjay, Medical Officer, who examined the dead bodies also in his post mortem notes Exh.47 and 48 supports 21 injuries on the person of deceased Sagun and 17 injuries on the person of deceased Laxmi."
}
},
{
"from_name": null,
"id": "4e006216b542463b8b9d905690977a3c",
"to_name": null,
"type": null,
"value": {
"end": 14787,
"labels": [
"ANALYSIS"
],
"start": 14732,
"text": "These injuries were caused by sharp and cutting object."
}
},
{
"from_name": null,
"id": "1c113f7804cb4b1dabf59c4e3e5ddd86",
"to_name": null,
"type": null,
"value": {
"end": 15001,
"labels": [
"ANALYSIS"
],
"start": 14787,
"text": "\n 15. The learned Judge, however, merely relied on the evidence of P.W. 7, Mohinuddin, who deposed that in the night on 26/1/1994 at about 9 p.m. the appellant had been to his house and wanted to purchase a knife."
}
},
{
"from_name": null,
"id": "dc9932be08604de6b05e3c6bed886539",
"to_name": null,
"type": null,
"value": {
"end": 15151,
"labels": [
"ANALYSIS"
],
"start": 15002,
"text": "But as the shop was closed, he offered her a gupti and the appellant had purchased the same, for her own security, as she had to travel to Karnataka."
}
},
{
"from_name": null,
"id": "cd5819a9a1d14b37a870f13748d451af",
"to_name": null,
"type": null,
"value": {
"end": 15192,
"labels": [
"ANALYSIS"
],
"start": 15152,
"text": "The murder was committed at about 1 a.m."
}
},
{
"from_name": null,
"id": "211de9fca5e446e093f956453178fd2d",
"to_name": null,
"type": null,
"value": {
"end": 15352,
"labels": [
"ANALYSIS"
],
"start": 15193,
"text": "The basic injuries on the person of both the deceased, as per post- mortem reports Exh.47 and 48 were on the vital part i.e. head, chest and were with the axe."
}
},
{
"from_name": null,
"id": "7b3ae6e35f3b47f189ec16fcd5a82ebc",
"to_name": null,
"type": null,
"value": {
"end": 15485,
"labels": [
"ANALYSIS"
],
"start": 15353,
"text": "The gupti was also recovered from the spot, under the panchanma, which was identified by P.W.7, but the gupti was not blood stained."
}
},
{
"from_name": null,
"id": "ce798ca633bf4d318bdc1468a0edcc4d",
"to_name": null,
"type": null,
"value": {
"end": 15745,
"labels": [
"ANALYSIS"
],
"start": 15485,
"text": "\nAccording to us purchase and recovery of Gupti from the spot that itself cannot be sufficient to accept the prosecution case and reasoning given by the learned Judge that the appellant had predetermined and designed to kill and or assaulted both the deceased."
}
},
{
"from_name": null,
"id": "7106f7eb97f6427bb7152f310929d804",
"to_name": null,
"type": null,
"value": {
"end": 15918,
"labels": [
"ANALYSIS"
],
"start": 15746,
"text": "There is nothing material on the record to show that the gupti in question was used in the commission of offence, as observed by the learned Judge, himself in para 29.\n 16."
}
},
{
"from_name": null,
"id": "82ea70a4b2464f298ebb2bd86cdec8f2",
"to_name": null,
"type": null,
"value": {
"end": 16084,
"labels": [
"ANALYSIS"
],
"start": 15920,
"text": "The learned Judge according to us, right in his reasoning in holding that the appellant had committed the crime in question and the prosecution has proved the same."
}
},
{
"from_name": null,
"id": "428cdfb972d747c1924bb40f8700f8bd",
"to_name": null,
"type": null,
"value": {
"end": 16349,
"labels": [
"ANALYSIS"
],
"start": 16085,
"text": "However, in the facts and circumstances of the case, we are convinced that the appellants statement under section 313 of Cr.P.C. read with other corroborative evidence that the appellant had committed the crime, because of out come of grave and sudden provocation."
}
},
{
"from_name": null,
"id": "6014013db5a54231a13d7f77ee5d14f0",
"to_name": null,
"type": null,
"value": {
"end": 16462,
"labels": [
"ANALYSIS"
],
"start": 16350,
"text": "We are of the view, that there was no pre-designed act or pre determined plan to commit the offence in question."
}
},
{
"from_name": null,
"id": "16286184f4ce48409d8c436d5a21bda3",
"to_name": null,
"type": null,
"value": {
"end": 16672,
"labels": [
"ANALYSIS"
],
"start": 16463,
"text": "We are of the view, that in the totality of the circumstance, there is an ample material on the record to show that the grave and sudden provocation was the main reason to commit such offence by the appellant."
}
},
{
"from_name": null,
"id": "cb4e9c11d1a747fb90b69ed66bcb9550",
"to_name": null,
"type": null,
"value": {
"end": 16966,
"labels": [
"ANALYSIS"
],
"start": 16673,
"text": "In the facts and circumstance of the case, the learned Judge was wrong in observing that burden to discharge rests upon the appellant, that she had received grave and sudden provocation at the hands of her husband Sagun and daughter Laxmi and therefore, she made assault in such state of mind."
}
},
{
"from_name": null,
"id": "8360f0e68d154af5a77fbb3ae8ec6958",
"to_name": null,
"type": null,
"value": {
"end": 17158,
"labels": [
"ANALYSIS"
],
"start": 16967,
"text": "The learned Judge, according to us, was also wrong by observing that she did not choose to adduce any evidence in her defence to establish the facts of receiving grave and sudden provocation."
}
},
{
"from_name": null,
"id": "f882e9f192d54066be8ff7b9321a03ef",
"to_name": null,
"type": null,
"value": {
"end": 17357,
"labels": [
"ANALYSIS"
],
"start": 17159,
"text": "We are of the view, after evaluating the evidence on the record and in the facts and circumstances of the case, that the appellant had committed the crime in question, because of sudden provocation."
}
},
{
"from_name": null,
"id": "0d18770acbb44b51b3b33bf5667228e7",
"to_name": null,
"type": null,
"value": {
"end": 17742,
"labels": [
"PRE_RELIED"
],
"start": 17357,
"text": "\n 17. The Apex Court in Raghavan Achari (Supra) acquitted the accused as that was the case of self defence, as the accused had caused grievous injuries to the appellant first and the appellant having seen the deceased in compromising position with his wife, and therefore, in this background the appellant had inflicted with the chopper, which resulted into the death of the deceased."
}
},
{
"from_name": null,
"id": "5722a222dfe34a0fb069365f055d9193",
"to_name": null,
"type": null,
"value": {
"end": 17853,
"labels": [
"ANALYSIS"
],
"start": 17743,
"text": "In that circumstances, the Apex Court has acquitted the appellant by giving the benefit of section 100 of IPC."
}
},
{
"from_name": null,
"id": "dd5ed00dacba4596a37b360081fa6e6a",
"to_name": null,
"type": null,
"value": {
"end": 17897,
"labels": [
"ANALYSIS"
],
"start": 17854,
"text": "The facts are distinct in the present case."
}
},
{
"from_name": null,
"id": "c07fb88fe7a741588832cffbcbd9e865",
"to_name": null,
"type": null,
"value": {
"end": 18270,
"labels": [
"RPC"
],
"start": 17897,
"text": "\n 18. Therefore, after considering the material on the record, we are accepting the submissions made by the learned Advocate appearing for the appellant based upon the Apex Court's decision (Ajit Singh) ( Supra) that the appellant had acted under grave and sudden provocation, therefore, the offence committed by her falls within the ambit of Section 304(1) of I.P.C.\n 19."
}
},
{
"from_name": null,
"id": "1d951cd87cf845e5a64b8058c8c117ed",
"to_name": null,
"type": null,
"value": {
"end": 18301,
"labels": [
"RPC"
],
"start": 18271,
"text": " The appeal is partly allowed."
}
},
{
"from_name": null,
"id": "d5b5c8c846914eec87712544fdb8f0d3",
"to_name": null,
"type": null,
"value": {
"end": 18426,
"labels": [
"RPC"
],
"start": 18301,
"text": "\n . We are therefore, quash and set aside the conviction for the offence punishable under section 302 r/w section 34 of IPC."
}
},
{
"from_name": null,
"id": "ec1aab8763dc46168dcec9f07d39168e",
"to_name": null,
"type": null,
"value": {
"end": 18529,
"labels": [
"RPC"
],
"start": 18427,
"text": "The offence committed by the appellant according to us fall within the ambit of section 304(I) of IPC."
}
},
{
"from_name": null,
"id": "7401b18f19274774b38c691a53741479",
"to_name": null,
"type": null,
"value": {
"end": 18616,
"labels": [
"RPC"
],
"start": 18530,
"text": "Therefore, a sentence of 8 years rigorous imprisonment would meet the ends of justice."
}
},
{
"from_name": null,
"id": "7aeb392dad8e4a3f9f6e5f653d2653c3",
"to_name": null,
"type": null,
"value": {
"end": 18655,
"labels": [
"RPC"
],
"start": 18618,
"text": "The order is modified to this extent."
}
},
{
"from_name": null,
"id": "8d5af73504964d7b86da0687f2821be9",
"to_name": null,
"type": null,
"value": {
"end": 18747,
"labels": [
"RPC"
],
"start": 18656,
"text": "The appellant is entitled for the set off, for the period, which she has already undergone."
}
},
{
"from_name": null,
"id": "67c50051d0a54c3f84c6339549314355",
"to_name": null,
"type": null,
"value": {
"end": 18805,
"labels": [
"RPC"
],
"start": 18748,
"text": "The appellant shall surrender to her bail bond forthwith."
}
},
{
"from_name": null,
"id": "21fbe324624e405d9996531682217820",
"to_name": null,
"type": null,
"value": {
"end": 18847,
"labels": [
"NONE"
],
"start": 18805,
"text": "\n [ S.S. PARKAR, J. ] [ANOOP V. MOHTA, J.]"
}
}
]
}
] | 4,154 | {
"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n CRIMINAL APPELLATE SIDE\n\n CRIMINAL APPEAL NO. 127 OF 1995\n\nSmt. Kusum Sagun Malmanke, .. Appellant\nAged a out 36 years, (Orig.Accused\n(presently in Sangli Dist.Jail)\n No.1)\n V/s.\nThe State of Maharashtra ..Respondent.\n\nShri Prashant D. Patil holding for Shri Ranjit V. More\nfor the appellant.\n\nShri D.R. More,A.P.P. for the State/Respondent.\n\n CORAM : S.S. PARKAR, &\n ANOOP V.MOHTA, JJ.\n\n DATE : 19TH APRIL, 2005.\n\nORAL JUDGMENT ( PER ANOOP V. MOHTA, J.) . The appellant-accused no.1 was charged for the offences punishable under Section 201, 302 r/w section 34 of Indian Penal Code (IPC), along with the original accused Nos. 2 and 3. By an impugned Judgment and order dated 5/12/1994, the Additional Sessions Judge, Sangli, has convicted the appellant for the offence charged under Section 302 of IPC and acquitted accused Nos. 2 and 3. Therefore, this appeal against the order of conviction and sentence to undergo imprisonment for life.\n 2. The appellant is the mother of Kumar (Accused No.2) and Parshuram (accused No.3). The appellant married to Sagun Tatoba Malmanke ( the deceased husband). This was her second marriage. Above two accused, Laxmi (the deceased daughter) and P.W.10 Renuka and P.W. 9 Deepak borned of her first marriage. The appellant therefore, on the date of incident dated 27/1/1994, was the mother of 3 sons and 2 daughters.\n All were residing together with the deceased in the house situated at Miraj.\n 3. The deceased daughter, Laxmi had illicit relations with the deceased husband, Sagun. Eight days prior to the date of incident, the deceased Sagun and the deceased Laxmi had left the house and they were roaming around in the village. On 26/1/1994 at about 9 p.m.,P.W. 9 Deepak had noticed them. The appellant rushed there and noticed Mangalsutra around the neck of the deceased Laxmi and when enquired, they informed about their marriage. However, the appellant brought them to the house in Rickshaw, which was noticed by the neighbour, P.W. 4, Gopal. At about 1 a.m. on 27/1/1994, Gopal (P.W. 4) heard noise of quarrel from the house of the accused and the deceased. As such quarrels were routine and as it was also stopped, Gopal P.W. 4 alongwith other neighbourers returned back to their respective homes. The appellant after 2 hours, on the same day at about 3 a.m. knocked the door of Gopal, P.W. 4 and requested him to accompany her to the police station. The appellant had also asked one Narsu, another neighbour, to accompany her to the police station. The appellant picked up an blood stained axe, which was kept in the corner of her house. They went to the rickshaw stand by walking . The appellant informed that, she along with her son accused Nos. 2 and 3 had assaulted the deceased husband Sagun and deceased daughter Laxmi with an axe, gupti, knife, and wooden handle and killed them. The clothes of the appellant were stained with the blood. They went to the Miraj Police station by Rickshaw. P.W. 4 and Narsu returned back from the compound of Police station, whereas the appellant went inside the police station. P.W. 14, Madan, Police Inspector, reduced into writing her report Exh.33 at about 4.45 a.m. The appellant put her thumb-impression and it was also endorsed by P.W. 14.\nTherefore, on 27/1/1994, offence was registered as charged. The blood stained axe, brought by the appellant, which was used for the commission of crime was seized in presence of P.W.8, Panch Mustak Jamadar under the panchanama Exh.14.\n 4. P.W. 14 Madan, P.I. visited the spot and noticed both the dead bodies in the residential house of the accused. The dead body of Sagun was naked. There were several injuries on the head, as well as, vital parts of both the dead bodies. The inquest panchanma was drawn Exh.8 and 9. The photographs were taken Exh.\n 25 in presence of P.W. 1, Kadar Babu Sayyed. The panchanma Exh.12 was drawn by P.W. 14. Several other articles including knife, gupti, wooden handle scattered and lying on the ground were also seized. Both the bodies were sent for post mortem examination to Civil Hospital,Sangli. Dr. Sanjay S. Bhave (P.W. 15) (M,.O.), conducted the post mortem examination on both these dead bodies. The report and letter Exh.47, 48 and death certificates and letter Exh.49 and 50 are on the record. The blood stained clothes, blouse, saree and petticoat were also seized in presence of PW.3 Bharat Gurav by P.W. 14, P.I. Chavan. The statements of the witnesses were recorded.The articles seized were sent to the Chemical Analyser for examination. The Chemical Analyser's report is filed on the record. P.W. 16, Shri Jadhav, Special Judicial Magistrate recorded the statement under Section 164 of Cr.P.C. of P.W. 9 Deepak Malmanke (Exh.55). The charge sheet against all the accused including the appellant was filed. The charges were framed against all the accused. All the accused have denied the charges levelled against them and pleaded not guilty and claimed for the trial. The prosecution has examined 15 witnesses. No defence witness was examined. The statements, under Section 313 of Cr.P.C. of each accused, were recorded vide Exh.2,3, and 4.\n 5. The learned Judge after considering the evidence and material placed on the record, acquitted the original accused Nos. 2 and 3. The appellant-original accused No.1 was acquitted for the offence punishable under section 201 of IPC but convicted for the offence punishable under Section 302 r/w 34 of IPC and sentenced her to undergo imprisonment for life and to pay fine of Rs. 5,000/-, in default to undergo further rigorous imprisonment for one year.\n 6. Heard Shri Prashant D. Patil, the learned Counsel for the appellant and Shri D.R. More, the learned A.P.P. for the Respondent/State. The appellant's Counsel has relied on 1989 Supp. (2) SCC 147 (Ajit Singh V. State of Punjab) and basically, submitted that the offence was committed by the appellant in grave and sudden provocation, as she found her second husband and her own daughter from first husband, in compromising position and therefore, submitted to consider the provisions of Section 304 (I) of IPC in the facts and circumstances of the case. He has also relied on 1993 Supp. (1) SCC 719 (Raghavan Achari Alias Njoonjappan V. State of Kerala). The learned A.P.P. has supported the Judgment and order on all counts and submitted to maintain the same.\n 7. After considering the material, as well as, the evidence on the record, we are also of the view, that the appellant, in the facts and circumstances of the case, under grave provocation, murdered her second husband, Sagun and her own daughter, Laxmi (from her first husband), as they had developed illicit relations and at the relevant time at midnight on 26/1/1994, the appellant had seen them in compromising position. There is no much dispute about the death of both the deceased on the spot, because of severe injuries on the vital parts of the bodies of the deceased, caused by, the duly seized blood stained axe, by the appellant. The original accused Nos. 2 and 3 were acquitted and there is no counter appeal by the State against the order of acquittal. The acquittal order therefore, remained intact. The prosecution has proved beyond doubt that the appellant assaulted and killed the deceased Sagun and Laxmi. The post mortem report, certificate of Doctor and multiple injuries, as recorded and observed by the learned Judge also support the prosecution. The learned Judge has convicted appellant by holding that there was predetermination and design and based on that the said offence was committed. Therefore, discarded the defence of sudden and grave provocation.\n 8. The spot panchanma Exh.10, Scene of offence Exh.12,A inquest panchanma Exhs. 9 shows that the dead body of the deceased Sagun was naked. The illicit relation of the deceased must be bothering the appellant. Both the deceased were away from home for some days. The appellant's son Deepak noticed them in the garden and they were brought back to the house in question. There was quarrel at about 1 a.m. between 26/1/1994 and 27/1/1994 and it was noticed by the by Gopal (P.W. 4). The Mangalsutra around the neck of the deceased Laxmi and open declaration about their marriage with the second husband was also troubling the appellant. Their such illicit relations cannot be said to be normal circumstance for the appellant at the relevant time. Above this, on the same night, when she saw her second husband Sagun in compromising position with the eldest daughter Laxmi, that must have provoked her to commit such crime. Merely because, some knife was purchased on the same date that itself cannot be the reason to hold that there was conspiracy or plan to commit the crime in question.\n 9. One cannot over look, in this back ground, the mental condition of the appellant, specially, when the appellant has 2 unmarried daughters and 3 unmarried sons staying together at the relevant time. Whatever may be the circumstances, there is no doubt that she had committed this heinous crime, but immediately made the confession and got arrested herself in the police station on 27/1/1994. The appellant-accused before reaching to the Police Station, when enquired, informed to Gopal, P.W. 4, about the crime and as suggested by him she went to the police station, and informed the same also to the police.\n 10. The learned Judge, rightly came to the conclusion that, the confession made before the police officer (P.W. 14) by the accused, cannot be used against her, in view of the bar created under Section 25 of the Evidence Act. The Apex Court in AIR, 1966 S.C.\n 119\" (Aghnoo Nagesia Vs. State of Bihar) has held that such admission of an incriminating fact including all other admission of related incriminating fact of the offence, fall within the purview of section 25 of Indian Evidence Act. The same is reiterated in 1972 Cr.L.J.\n 626 ( Khatri Hemraj Amulakh Vs. The State of Gujrat).\n The Apex Court has observed in the same Judgment as follows.\n \"The part of the information as related distinctly to the fact discovered in consequence of the information could also be admitted into evidence under Section 27 of the Indian Evidence Act, if the other conditions of that section were satisfied.\"\n The learned Judge therefore, rightly relied on Exh.33, the FIR lodged by the appellant, by considering the provisions of section 8 of the Indian Evidence Act, in reference to the conduct of the appellant including visiting the police station on her own accord and made the report. The information given by the appellant, which is followed by the seizure of the blood stained axe (Exh. 14) can be taken note of. The testimony of P.W. 4, Gopal; P.W. 14, P.I, Madan Chavan (Exh.33) and in addition to that statement made by he appellant under Section 313 of Cr.P.C. was rightly relied and considered by the learned Judge. In view of the corroboration of this material particulars, we are also of the view, that the prosecution has proved the links of the events against the appellant. The panch, Mustaq, P.W. 8 of the panchanama Exh. 14, also support the fact that in his presence P.W. 14, I.O. had seized blood stained axe from the appellant. The contents of FIR Exh.33, and all these aspects are also rightly relied upon. We cannot over look the fact of recovery of the weapon (blood stained axe) from the possession of the appellant and as the same was also independently established by the evidence of P.Ws. 4, 8 and 14.\n 11. The prosecution according to us and as observed by the learned Sessions Judge has proved the Commission of the offence by the appellant and her effective participation in the said offence. Apart from the extra Judicial confession by the appellant to P.W. 4, there are corroborative evidence, independently, on the record, to support the said extra judicial confession made by the appellant. The possibility of disclosing this fact to P.W. 4, who was at the relevant time was neighbourer, cannot be discarded. There is a observation by the learned Judge also that the appellant was prostitute and the acquaintance of the appellant with Gopal was not unnatural. Gopal (P.W.4) was staying with his keep in the neighbouring house. The immediate conduct of the appellant, after committing the crime and asking for help from P.W.. 4 and one other neighbour cannot be discarded.\n 12. There is no doubt that such confessional statement cannot be the basis of conviction, and or even also the extra judicial confession, unless, it is corroborated by the other piece of evidence. In the facts and circumstance of the case, we are of the view, that the corroborative circumstances are also against the appellant. Merely because, P.W. 9, Deepak son the appellant; P.W. 10, Renuka, daughter of the appellant were declared hostile, still, as both these witnesses, as observed rightly by the learned Sessions Judge, have deposed in their examination-in-chief, the facts prior to the incident, specially, the fact that Deepak ,P.W.\n9 noticed both the deceased Sagun and Laxmi in Ambedkar Garden, Miraj, and they were absent from the house for more than 8 days. Based upon the said information, the appellant with others went to the spot and brought both the deceased to the house on 26/11/1994. P.W. 4 (Gopal) noticed that the deceased Sagun and Laxmi and appellant alighted from the rickshaw on 26/1/1994 at about 3 p.m. This fact was corroborated by P.W. 9, Deepak and P.W. 10, Renuka, who were also residing along with the deceased and the appellant in the same house. This circumstantial evidence therefore, also linked the prosecution case.\n 13. The presence of original accused Nos. 2 and 3 was not supported and or proved by any of the witnesses.\n 14. On 27/1/1994 at about 3 a.m., as noted above, P.W. 4, Gopal on the request of appellant accompanied her upto the compound wall of the police station. P.W.\n 12 also gave drinking water to the appellant and asked her husband, Narsu to accompany her. The blood stained clothes, blood stained weapon i.e. axe which were seized from appellant. No.1. The Chemical Analyser's reports Exh.37 to 40 disclose that the blood group of the deceased was found on the seized blood stained clothes, apart from the clothes of the appellant and the axe. All these corroborative evidence, therefore, connect the appellant with the crime. P.W. 15, Dr.\nSanjay, Medical Officer, who examined the dead bodies also in his post mortem notes Exh.47 and 48 supports 21 injuries on the person of deceased Sagun and 17 injuries on the person of deceased Laxmi. These injuries were caused by sharp and cutting object.\n 15. The learned Judge, however, merely relied on the evidence of P.W. 7, Mohinuddin, who deposed that in the night on 26/1/1994 at about 9 p.m. the appellant had been to his house and wanted to purchase a knife. But as the shop was closed, he offered her a gupti and the appellant had purchased the same, for her own security, as she had to travel to Karnataka. The murder was committed at about 1 a.m. The basic injuries on the person of both the deceased, as per post- mortem reports Exh.47 and 48 were on the vital part i.e. head, chest and were with the axe. The gupti was also recovered from the spot, under the panchanma, which was identified by P.W.7, but the gupti was not blood stained.\nAccording to us purchase and recovery of Gupti from the spot that itself cannot be sufficient to accept the prosecution case and reasoning given by the learned Judge that the appellant had predetermined and designed to kill and or assaulted both the deceased. There is nothing material on the record to show that the gupti in question was used in the commission of offence, as observed by the learned Judge, himself in para 29.\n 16. The learned Judge according to us, right in his reasoning in holding that the appellant had committed the crime in question and the prosecution has proved the same. However, in the facts and circumstances of the case, we are convinced that the appellants statement under section 313 of Cr.P.C. read with other corroborative evidence that the appellant had committed the crime, because of out come of grave and sudden provocation. We are of the view, that there was no pre-designed act or pre determined plan to commit the offence in question. We are of the view, that in the totality of the circumstance, there is an ample material on the record to show that the grave and sudden provocation was the main reason to commit such offence by the appellant. In the facts and circumstance of the case, the learned Judge was wrong in observing that burden to discharge rests upon the appellant, that she had received grave and sudden provocation at the hands of her husband Sagun and daughter Laxmi and therefore, she made assault in such state of mind. The learned Judge, according to us, was also wrong by observing that she did not choose to adduce any evidence in her defence to establish the facts of receiving grave and sudden provocation. We are of the view, after evaluating the evidence on the record and in the facts and circumstances of the case, that the appellant had committed the crime in question, because of sudden provocation.\n 17. The Apex Court in Raghavan Achari (Supra) acquitted the accused as that was the case of self defence, as the accused had caused grievous injuries to the appellant first and the appellant having seen the deceased in compromising position with his wife, and therefore, in this background the appellant had inflicted with the chopper, which resulted into the death of the deceased. In that circumstances, the Apex Court has acquitted the appellant by giving the benefit of section 100 of IPC. The facts are distinct in the present case.\n 18. Therefore, after considering the material on the record, we are accepting the submissions made by the learned Advocate appearing for the appellant based upon the Apex Court's decision (Ajit Singh) ( Supra) that the appellant had acted under grave and sudden provocation, therefore, the offence committed by her falls within the ambit of Section 304(1) of I.P.C.\n 19. The appeal is partly allowed.\n . We are therefore, quash and set aside the conviction for the offence punishable under section 302 r/w section 34 of IPC. The offence committed by the appellant according to us fall within the ambit of section 304(I) of IPC. Therefore, a sentence of 8 years rigorous imprisonment would meet the ends of justice.\n The order is modified to this extent. The appellant is entitled for the set off, for the period, which she has already undergone. The appellant shall surrender to her bail bond forthwith.\n [ S.S. PARKAR, J. ] [ANOOP V. MOHTA, J.] "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "362270c5d1e34392a0ba036cb7caa3fc",
"to_name": null,
"type": null,
"value": {
"end": 601,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX, ANDHRA PRADESH\n\nVs.\n\nRESPONDENT:\nT.N. ARVINDA REDDY\n\nDATE OF JUDGMENT05/10/1979\n\nBENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nDESAI, D.A.\n\nCITATION: 1980 SCR (1) 872\n 1980 AIR 96\n 1979 SCC (4) 421\n\nACT:\n Income-tax Act-1961 Section 54(1)-Scope of-Words &\n\nPhrases-Purchase-Meaning of.\n\nHEADNOTE:\n The respondent sold his house at a price sufficient to\n\nattract capital gins but he pre-empted the demand of tax by\nacquiring the common house from his brothers for a\nconsideration of Rs 30,000/- each through separate release\ndeeds."
}
},
{
"from_name": null,
"id": "c9dfb1ec1ad8441684b9e26b94531be8",
"to_name": null,
"type": null,
"value": {
"end": 766,
"labels": [
"PREAMBLE"
],
"start": 602,
"text": "On behalf of the Petitioner, it was contended that\nrelease deeds by sharers in favour of one of them amounts to\npurchase within the meaning of s. 54 (1) of the Act."
}
},
{
"from_name": null,
"id": "3227fb6667b841098d7962a2b0bfe20a",
"to_name": null,
"type": null,
"value": {
"end": 890,
"labels": [
"PREAMBLE"
],
"start": 767,
"text": "The\nHigh Court having held it is, the Revenue came by way of\nSpecial Leave.\n\n Dismissing the Petition,\n^\n\n "
}
},
{
"from_name": null,
"id": "559750e630e14735bd799b805ba72e0f",
"to_name": null,
"type": null,
"value": {
"end": 980,
"labels": [
"PREAMBLE"
],
"start": 890,
"text": "HELD: Each release is a transfer of the releaser's\nshare for consideration to the release."
}
},
{
"from_name": null,
"id": "6e02fdc15f4e4d319614386bdbf07ec2",
"to_name": null,
"type": null,
"value": {
"end": 1070,
"labels": [
"PREAMBLE"
],
"start": 981,
"text": "In plain English,\nthe transferee purchases the share of each of his brothers\nfor a price."
}
},
{
"from_name": null,
"id": "dc0049894ea945cf92bf05c72f7e7b6e",
"to_name": null,
"type": null,
"value": {
"end": 1207,
"labels": [
"PREAMBLE"
],
"start": 1071,
"text": "Had this been taken from non-fraternal owners\nof shares or from one stranger owner, plain spoken people\nwould have called it a purchase."
}
},
{
"from_name": null,
"id": "e008cfd05aa64f51aef1d6a413ef0fc4",
"to_name": null,
"type": null,
"value": {
"end": 1376,
"labels": [
"PREAMBLE"
],
"start": 1208,
"text": "The reason is supported by\ndecision in Hobshaw Brothers Ltd. v. Mayer, [1956(3) AER 833\nand 835] that purchase primarily means acquisition for money\npaid, not adjusted."
}
},
{
"from_name": null,
"id": "93694a29b5654d01bcf822676309635f",
"to_name": null,
"type": null,
"value": {
"end": 1642,
"labels": [
"PREAMBLE"
],
"start": 1377,
"text": "There is no reason to divorce the\nordinary meaning of the word 'purchase' as buying for price\nor equivalent of price by payment in kind or adjustment\ntowards an old debt or for other monetary consideration from\nthe legal meaning of that word in s. 54(1) of the Act."
}
},
{
"from_name": null,
"id": "ad456f039dd04dec81e62fd00e45a5c5",
"to_name": null,
"type": null,
"value": {
"end": 1663,
"labels": [
"PREAMBLE"
],
"start": 1643,
"text": "[873\nB-D]\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "620fa903f1be42788de198ee1123024b",
"to_name": null,
"type": null,
"value": {
"end": 1751,
"labels": [
"NONE"
],
"start": 1663,
"text": "\n CIVIL APPELLATE JURISDICTION: Special Leave Petition (Civil) No. 1557 of 1979."
}
},
{
"from_name": null,
"id": "0cd8c07e9c6b458f990a57acc67809de",
"to_name": null,
"type": null,
"value": {
"end": 1870,
"labels": [
"NONE"
],
"start": 1761,
"text": "From the Judgment and Order dated 1-2-1978 of the Andhra Pradesh High Court in Case Referred No. 114 of 1976."
}
},
{
"from_name": null,
"id": "db60875bb3b44d9c805bc15a1b853268",
"to_name": null,
"type": null,
"value": {
"end": 2026,
"labels": [
"NONE"
],
"start": 1870,
"text": "\n Soli J. Sorabji, Solicitor General and Miss A.\n Subhashini for the petitioner.\n S.T. Desai, K. J. John and A. K. Verma for the Respondent."
}
},
{
"from_name": null,
"id": "a8a85b917fe240aabb0797b5224e8bf6",
"to_name": null,
"type": null,
"value": {
"end": 2363,
"labels": [
"NONE"
],
"start": 2026,
"text": "\n The order of the Court was delivered by KRISHNA IYER, J. -We regard the single point, persuasively presented by the learned Solicitor General on behalf of the petitioner (The Commissioner of Income Tax, Andhra Pradesh), as deserving of a speaking order, although in dissent, since the question may arise again and needs to be silenced."
}
},
{
"from_name": null,
"id": "05156da5e6b64c6ca21268e92e3682e6",
"to_name": null,
"type": null,
"value": {
"end": 2391,
"labels": [
"FAC"
],
"start": 2364,
"text": " Briefly, the facts."
}
},
{
"from_name": null,
"id": "23a1c623b07c48c9a1a249fdac67170f",
"to_name": null,
"type": null,
"value": {
"end": 2536,
"labels": [
"FAC"
],
"start": 2392,
"text": "Four brothers, members of a coparcenery, partitioned their family properties, leaving in common a large house in the occupation of their mother."
}
},
{
"from_name": null,
"id": "062d511deebd4e26b323deb423ffae6d",
"to_name": null,
"type": null,
"value": {
"end": 2925,
"labels": [
"FAC"
],
"start": 2537,
"text": "The eldest, who is respondent before us, sold his own house at a price sufficient to attract handsome capital gains tax, but he pre-empted the demand for tax by acquiring the common house from his three brothers who executed three release ,, deeds for a consideration of Rs. 30,000/- each, adjusted towards the extra share (Jeshtabhaga) agreed to be given to the eldest by the next three."
}
},
{
"from_name": null,
"id": "8b0cfa291cd04f86996cc6d190ec11b2",
"to_name": null,
"type": null,
"value": {
"end": 3102,
"labels": [
"ANALYSIS"
],
"start": 2926,
"text": "It is common ground that if these release deeds did .. amount to purchase of the house, s. 54(1) of the Income Tax Act, 1961, would save the respondent from exigibility to tax."
}
},
{
"from_name": null,
"id": "317656dfb586465dafa8f41dfd3c375d",
"to_name": null,
"type": null,
"value": {
"end": 3385,
"labels": [
"ISSUE"
],
"start": 3103,
"text": "So the short question, neatly identified by the learned Solicitor General is whether release deeds by sharers in favour of one of them whereby the joint ownership of all became separate ownership of one amount to purchase of house property within the meaning of s. 54(1) of the Act."
}
},
{
"from_name": null,
"id": "ed91901c8d2a47408ef9c274bd469aae",
"to_name": null,
"type": null,
"value": {
"end": 3430,
"labels": [
"ANALYSIS"
],
"start": 3386,
"text": "The High Court has held it is and we concur."
}
},
{
"from_name": null,
"id": "ca1e6e4c664f47eca75ca7b2a373779e",
"to_name": null,
"type": null,
"value": {
"end": 3555,
"labels": [
"ANALYSIS"
],
"start": 3431,
"text": "Undoubtedly, each , release, in these circumstances, is a transfer of the releaser's share for consideration to the release."
}
},
{
"from_name": null,
"id": "2234a50a69ab4478b8f3ad5d34d26d30",
"to_name": null,
"type": null,
"value": {
"end": 3633,
"labels": [
"ANALYSIS"
],
"start": 3556,
"text": "In plain English, the transferee purchases the share of each of his brothers."
}
},
{
"from_name": null,
"id": "28f4aa6f9d904f88a32b1e3be8554ca9",
"to_name": null,
"type": null,
"value": {
"end": 3675,
"labels": [
"ANALYSIS"
],
"start": 3634,
"text": "It is for a price of i Rs. 30,000/- each."
}
},
{
"from_name": null,
"id": "d6663301eea34a159647c81b5422f49f",
"to_name": null,
"type": null,
"value": {
"end": 3813,
"labels": [
"ANALYSIS"
],
"start": 3676,
"text": "Had this been taken from non-fraternal owners of shares or from one stranger- owner, plain-spoken people would have called it a purchase."
}
},
{
"from_name": null,
"id": "9cfd41ad2bce48308336fa7a557e0cce",
"to_name": null,
"type": null,
"value": {
"end": 3887,
"labels": [
"ANALYSIS"
],
"start": 3813,
"text": "\nWhy, then, should legalist be allowed to play this linguistic distortion."
}
},
{
"from_name": null,
"id": "5bb3b27df5704f06983dc66b9e33c415",
"to_name": null,
"type": null,
"value": {
"end": 4063,
"labels": [
"PRE_RELIED"
],
"start": 3888,
"text": "The reason, supposedly supported by an English decision, is that purchase primarily means acquisition for money paid, not adjusted Upjohn, J. in Habshaw Brothers Ltd. v. Mayer"
}
},
{
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"value": {
"end": 4178,
"labels": [
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],
"start": 4064,
"text": "has circumspectly said : There are no doubt to be found authorities and statutes which have extended that meaning."
}
},
{
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"start": 4179,
"text": "In Mr. T.\n Cyprian Williams book, the Contract of Sale of Land, at p. 3 he says: \"'sale', in the strict and primary sense of the word, 'means' an agreement for the conveyance of property for a price in money; but the word 'sale' may be used in law in a wider sense and so applied to the conveyance of land for a price consisting wholly or partly of money's worth other than the conveyance of some other land.\"\n "
}
},
{
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"end": 4719,
"labels": [
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],
"start": 4598,
"text": "Apparently he considered that a sale for something other than money can in a wider sense be properly described as a sale."
}
},
{
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"text": "\nWe agree."
}
},
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],
"start": 4730,
"text": "The signification of a word of plural semantic shades may, in a given text, depend on the pressure of the context or other indicia."
}
},
{
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],
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"text": "Absent such compelling mutation of sense, the speech of the lay is also the language of the law."
}
},
{
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],
"start": 4959,
"text": " We find no reason to divorce the ordinary meaning of the word 'purchase' as buying for a price or equivalent of price by payment ill kind or adjustment towards an old debt or for other monetary consideration from the legal meaning of that word in Sec. 54 (1)."
}
},
{
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],
"start": 5227,
"text": "If you sell your house and make a profit, pay Caesar what is due to him."
}
},
{
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"labels": [
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],
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"text": "But if you buy or build another subject to the conditions of Sec. 54(1) you are exempt."
}
},
{
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"value": {
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"labels": [
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],
"start": 5388,
"text": "The purpose is plain; the symmetry is simple, the language is plain."
}
},
{
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"to_name": null,
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"labels": [
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],
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"text": "Why mutilate the meaning by lexical legalism."
}
},
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],
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"text": "We see no stress in the section on 'cash and carry'."
}
},
{
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"value": {
"end": 5604,
"labels": [
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],
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"text": "The point pressed must, therefore, be negatived."
}
},
{
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"id": "b055ef5aa4ee40efa440ffeaadcd5f4d",
"to_name": null,
"type": null,
"value": {
"end": 5724,
"labels": [
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],
"start": 5605,
"text": "We have declined lo hear Sri S. T. Desai's artillery fire although he was armed cap a pie with Mitakshara lore and law."
}
},
{
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"to_name": null,
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"value": {
"end": 5891,
"labels": [
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],
"start": 5725,
"text": "A point of suffocating scholarship sometimes arrives in court when one nostaligically remembers the escapist verse: \"Where ignorance is bliss, \"Tis folly to be wise.\""
}
},
{
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"id": "f2424da9ad214b099872039ef5ae3622",
"to_name": null,
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"value": {
"end": 5898,
"labels": [
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],
"start": 5892,
"text": "Amen !"
}
},
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"type": null,
"value": {
"end": 6056,
"labels": [
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],
"start": 5899,
"text": "A passing reference to avoidance and evasion of tax was made at the bar, a dubious refinement of a dated legal culture sanctified, though, by judicial dicta."
}
},
{
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"id": "5834d9e1cc80432180c902f1ee249de4",
"to_name": null,
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"value": {
"end": 6228,
"labels": [
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],
"start": 6057,
"text": "The court is not the mint of virtue and one day in our Welfare State geared to Social Justice, this clever concept of 'avoidance' against 'evasion' may have to be exposed."
}
},
{
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"id": "3373e3d91ef741ca80a370d837b6ba2c",
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"end": 6269,
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],
"start": 6229,
"text": "Enough unto the day is the evil thereof."
}
},
{
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"to_name": null,
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"end": 6296,
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],
"start": 6269,
"text": "\nN.K.A. Petition dismissed."
}
}
]
}
] | 4,228 | {
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX, ANDHRA PRADESH\n\nVs.\n\nRESPONDENT:\nT.N. ARVINDA REDDY\n\nDATE OF JUDGMENT05/10/1979\n\nBENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nDESAI, D.A.\n\nCITATION: 1980 SCR (1) 872\n 1980 AIR 96\n 1979 SCC (4) 421\n\nACT:\n Income-tax Act-1961 Section 54(1)-Scope of-Words &\n\nPhrases-Purchase-Meaning of.\n\nHEADNOTE:\n The respondent sold his house at a price sufficient to\n\nattract capital gins but he pre-empted the demand of tax by\nacquiring the common house from his brothers for a\nconsideration of Rs 30,000/- each through separate release\ndeeds. On behalf of the Petitioner, it was contended that\nrelease deeds by sharers in favour of one of them amounts to\npurchase within the meaning of s. 54 (1) of the Act. The\nHigh Court having held it is, the Revenue came by way of\nSpecial Leave.\n\n Dismissing the Petition,\n^\n\n HELD: Each release is a transfer of the releaser's\nshare for consideration to the release. In plain English,\nthe transferee purchases the share of each of his brothers\nfor a price. Had this been taken from non-fraternal owners\nof shares or from one stranger owner, plain spoken people\nwould have called it a purchase. The reason is supported by\ndecision in Hobshaw Brothers Ltd. v. Mayer, [1956(3) AER 833\nand 835] that purchase primarily means acquisition for money\npaid, not adjusted. There is no reason to divorce the\nordinary meaning of the word 'purchase' as buying for price\nor equivalent of price by payment in kind or adjustment\ntowards an old debt or for other monetary consideration from\nthe legal meaning of that word in s. 54(1) of the Act. [873\nB-D]\n\nJUDGMENT:\n CIVIL APPELLATE JURISDICTION: Special Leave Petition (Civil) No. 1557 of 1979.\n From the Judgment and Order dated 1-2-1978 of the Andhra Pradesh High Court in Case Referred No. 114 of 1976.\n Soli J. Sorabji, Solicitor General and Miss A.\n Subhashini for the petitioner.\n S.T. Desai, K. J. John and A. K. Verma for the Respondent.\n The order of the Court was delivered by KRISHNA IYER, J. -We regard the single point, persuasively presented by the learned Solicitor General on behalf of the petitioner (The Commissioner of Income Tax, Andhra Pradesh), as deserving of a speaking order, although in dissent, since the question may arise again and needs to be silenced. Briefly, the facts. Four brothers, members of a coparcenery, partitioned their family properties, leaving in common a large house in the occupation of their mother. The eldest, who is respondent before us, sold his own house at a price sufficient to attract handsome capital gains tax, but he pre-empted the demand for tax by acquiring the common house from his three brothers who executed three release ,, deeds for a consideration of Rs. 30,000/- each, adjusted towards the extra share (Jeshtabhaga) agreed to be given to the eldest by the next three. It is common ground that if these release deeds did .. amount to purchase of the house, s. 54(1) of the Income Tax Act, 1961, would save the respondent from exigibility to tax. So the short question, neatly identified by the learned Solicitor General is whether release deeds by sharers in favour of one of them whereby the joint ownership of all became separate ownership of one amount to purchase of house property within the meaning of s. 54(1) of the Act. The High Court has held it is and we concur. Undoubtedly, each , release, in these circumstances, is a transfer of the releaser's share for consideration to the release. In plain English, the transferee purchases the share of each of his brothers. It is for a price of i Rs. 30,000/- each. Had this been taken from non-fraternal owners of shares or from one stranger- owner, plain-spoken people would have called it a purchase.\nWhy, then, should legalist be allowed to play this linguistic distortion. The reason, supposedly supported by an English decision, is that purchase primarily means acquisition for money paid, not adjusted Upjohn, J. in Habshaw Brothers Ltd. v. Mayer has circumspectly said : There are no doubt to be found authorities and statutes which have extended that meaning. In Mr. T.\n Cyprian Williams book, the Contract of Sale of Land, at p. 3 he says: \"'sale', in the strict and primary sense of the word, 'means' an agreement for the conveyance of property for a price in money; but the word 'sale' may be used in law in a wider sense and so applied to the conveyance of land for a price consisting wholly or partly of money's worth other than the conveyance of some other land.\"\n Apparently he considered that a sale for something other than money can in a wider sense be properly described as a sale.\nWe agree. The signification of a word of plural semantic shades may, in a given text, depend on the pressure of the context or other indicia. Absent such compelling mutation of sense, the speech of the lay is also the language of the law. We find no reason to divorce the ordinary meaning of the word 'purchase' as buying for a price or equivalent of price by payment ill kind or adjustment towards an old debt or for other monetary consideration from the legal meaning of that word in Sec. 54 (1). If you sell your house and make a profit, pay Caesar what is due to him. But if you buy or build another subject to the conditions of Sec. 54(1) you are exempt. The purpose is plain; the symmetry is simple, the language is plain. Why mutilate the meaning by lexical legalism. We see no stress in the section on 'cash and carry'. The point pressed must, therefore, be negatived. We have declined lo hear Sri S. T. Desai's artillery fire although he was armed cap a pie with Mitakshara lore and law. A point of suffocating scholarship sometimes arrives in court when one nostaligically remembers the escapist verse: \"Where ignorance is bliss, \"Tis folly to be wise.\"\nAmen ! A passing reference to avoidance and evasion of tax was made at the bar, a dubious refinement of a dated legal culture sanctified, though, by judicial dicta. The court is not the mint of virtue and one day in our Welfare State geared to Social Justice, this clever concept of 'avoidance' against 'evasion' may have to be exposed. Enough unto the day is the evil thereof.\nN.K.A. Petition dismissed."
} |
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"text": "\n 1. Permission was granted for the establishment of Petitioner No.2- R.K.D.F. Medical College Hospital and Research Centre (hereinafter referred to as \"the College) by Respondent No.1 on the recommendation of Respondent No.2-herein- Medical Council of India, with an intake capacity of 150 MBBS seats annually for the academic year 2014-15."
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"text": "The High Court of Delhi quashed the said order dated 28th September, 2015 and directed the Central Government to examine the matter afresh vide its order dated 29th December, 2015 in Writ Petition (C) No. 9663 of 2015."
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"text": "The Oversight Committee directed the College to rectify the deficiencies and submit a compliance report to the Ministry of Health & Family Welfare by 27th September, 2016."
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"text": "The College was informed that a bank guarantee of Rs. Two Crores in favour of Respondent No.2 has to be furnished by 27th September, 2016."
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"text": "It was stated that non-compliance of the conditions imposed by the Oversight Committee would result in the College getting debarred from fresh intake for two years commencing 2017-18."
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"to_name": "text",
"type": "labels",
"value": {
"end": 4045,
"labels": [
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],
"start": 3884,
"text": "\n The 2nd Batch of 150 students for the academic year 2016-17 were admitted pursuant to the conditional permission for renewal granted by the Central Government."
}
},
{
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"id": "7dc789579d4a47c390aed872ea8c9a40",
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"value": {
"end": 4215,
"labels": [
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],
"start": 4047,
"text": "3. A joint verification inspection was conducted on 5th and 6th January, 2017 for renewal of permission to the 3rd Batch of MBBS students for the academic year 2017-18."
}
},
{
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"id": "6aff51733159482db7499caa337c23ef",
"to_name": "text",
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"value": {
"end": 4484,
"labels": [
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],
"start": 4216,
"text": "Finding gross deficiencies in the infrastructure, clinical material, teaching faculty and other physical facilities in the College, the Executive Committee of Respondent No.2 concluded that the undertaking given by the College on 28th September, 2016 was breached."
}
},
{
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"value": {
"end": 4634,
"labels": [
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],
"start": 4485,
"text": "The Committee decided to recommend to the Central Government to debar the College from admitting students for the academic years 2017-18 and 2018-19."
}
},
{
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"to_name": "text",
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"value": {
"end": 4845,
"labels": [
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],
"start": 4635,
"text": " The Central Government accepted the recommendations made by Respondent No.2 and by an order dated 31st May, 2017 debarred the College from making admissions for the years 2017-18 and 2018-19."
}
},
{
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"id": "8639b5134bb847adb8f298bde1117fd3",
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"value": {
"end": 5023,
"labels": [
"RLC"
],
"start": 4846,
"text": "The High Court of Madhya Pradesh allowed Writ Petition (C) No.8100 of 2017 filed by the College questioning the legality of order of the Central Government dated 31st May, 2017."
}
},
{
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"value": {
"end": 5086,
"labels": [
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],
"start": 5024,
"text": "The College was permitted to provisionally admit 150 students."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 5237,
"labels": [
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],
"start": 5087,
"text": "Aggrieved by the judgment dated 21st July, 2017 of the High Court of Madhya Pradesh, Respondent No.2 filed SLP (C) No.20400 of 2017 before this Court."
}
},
{
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"id": "9eb9fc8391cc47ed8e83e143a0a9d07f",
"to_name": "text",
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"value": {
"end": 5368,
"labels": [
"FAC"
],
"start": 5238,
"text": "The re-inspection as directed by the High Court of Madhya Pradesh was confirmed by this Court by an order dated 14th August, 2017."
}
},
{
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"id": "e16fc487a0ac49b282e31300042c8a3f",
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"type": "labels",
"value": {
"end": 5517,
"labels": [
"FAC"
],
"start": 5369,
"text": "It was made clear in the said order that the admission of students shall be completely provisional, being dependent on the result of the inspection."
}
},
{
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"id": "dfe8ddc27f064e52862c53f18ca3aae0",
"to_name": "text",
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"value": {
"end": 5703,
"labels": [
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],
"start": 5518,
"text": "It was further mentioned that the admission of students shall be liable to be cancelled if the College fails in the inspection and the students will not be entitled to claim any equity."
}
},
{
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"id": "9ec09b86512c43669548c26350fe047b",
"to_name": "text",
"type": "labels",
"value": {
"end": 5801,
"labels": [
"FAC"
],
"start": 5704,
"text": " The students were directed to be informed by the Counselling committee about the said condition."
}
},
{
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"id": "282782f015834a99b4d9bc72372bc8bc",
"to_name": "text",
"type": "labels",
"value": {
"end": 5949,
"labels": [
"FAC"
],
"start": 5802,
"text": "An inspection was scheduled to be conducted on 14th & 15th September, 2017 for renewal of the 4th Batch of students in College for the MBBS course."
}
},
{
"from_name": "label",
"id": "82120cc28a524869828a709fe8d0d33c",
"to_name": "text",
"type": "labels",
"value": {
"end": 6102,
"labels": [
"FAC"
],
"start": 5949,
"text": "\n According to Respondent No.2, the said inspection had to be aborted midway as the assessors were manhandled and physically forced to leave the College."
}
},
{
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"id": "dddf8bdb1f64433d933fee645a3b4ea3",
"to_name": "text",
"type": "labels",
"value": {
"end": 6207,
"labels": [
"FAC"
],
"start": 6103,
"text": "At the request made by the College, another inspection was conducted on the 25th & 26th September, 2017."
}
},
{
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"id": "d9c95056041c4e99823cf5bdfabb1775",
"to_name": "text",
"type": "labels",
"value": {
"end": 6542,
"labels": [
"FAC"
],
"start": 6208,
"text": "The Executive Committee of Respondent No.2 considered the Assessment Report at its meeting held on 26th September, 2017 and decided that admissions of the 4th Batch of 150 MBBS students for the year 2017-18 should be cancelled in view of the following deficiencies found in the inspection conducted on 25th & 26th September, 2017: \"I."
}
},
{
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"id": "6d713633da874e3b98909b873626bc0f",
"to_name": "text",
"type": "labels",
"value": {
"end": 6620,
"labels": [
"FAC"
],
"start": 6543,
"text": "Bed Occupancy at 10 a.m. on day of assessment was 01.07% (i.e. 7 out of 410)."
}
},
{
"from_name": "label",
"id": "9340d75e6cfe4578941853a1bd66a1e9",
"to_name": "text",
"type": "labels",
"value": {
"end": 6685,
"labels": [
"FAC"
],
"start": 6621,
"text": "II. There were no Major Surgical operation on day of assessment."
}
},
{
"from_name": "label",
"id": "8799c79c74f14bfca03c3e764744f731",
"to_name": "text",
"type": "labels",
"value": {
"end": 6750,
"labels": [
"FAC"
],
"start": 6686,
"text": "III. There was NIL Normal Delivery or LSCS on day of assessment."
}
},
{
"from_name": "label",
"id": "5f4a2a4c7acd4a88a9e58c5ba587c004",
"to_name": "text",
"type": "labels",
"value": {
"end": 6915,
"labels": [
"FAC"
],
"start": 6751,
"text": "IV. Data of Clinical material like Casualty attendance, Discharges, Major & Minor Operations, Radiological Investigations as provided by the Institute are inflated."
}
},
{
"from_name": "label",
"id": "761708884d02432a9556e1ba43469e49",
"to_name": "text",
"type": "labels",
"value": {
"end": 6924,
"labels": [
"FAC"
],
"start": 6916,
"text": "V. ICUs:"
}
},
{
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"id": "ec4fd5cffa7843dc8f54375a853af95f",
"to_name": "text",
"type": "labels",
"value": {
"end": 7024,
"labels": [
"FAC"
],
"start": 6925,
"text": "There was NIL patient in NICU/ PICU & only 1 patient each in ICCU, MICU, SICU on day of assessment."
}
},
{
"from_name": "label",
"id": "79efc11bd75a4afc87b9378d7dbc4773",
"to_name": "text",
"type": "labels",
"value": {
"end": 7085,
"labels": [
"FAC"
],
"start": 7024,
"text": "\nVI. Blood Bank: NIL Unit was dispensed on day of assessment."
}
},
{
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"id": "a86d8ce7dc824814b5243562bff0b973",
"to_name": "text",
"type": "labels",
"value": {
"end": 7149,
"labels": [
"FAC"
],
"start": 7085,
"text": "\nVII. Deficiency of faculty is 15.65% as detailed in the report."
}
},
{
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"id": "3a70aaa1f84d4fafbf060bfb5c865ea1",
"to_name": "text",
"type": "labels",
"value": {
"end": 7211,
"labels": [
"FAC"
],
"start": 7149,
"text": "\nVIII. Shortage of residents is 40% as detailed in the report."
}
},
{
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"id": "ba3f4ff6fc27414b9464faa246443611",
"to_name": "text",
"type": "labels",
"value": {
"end": 7282,
"labels": [
"FAC"
],
"start": 7212,
"text": "IX. Diet order was not recorded in the register on day of assessment."
}
},
{
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"id": "5746bae6c6d04ee5a7b93c3b380a3af7",
"to_name": "text",
"type": "labels",
"value": {
"end": 7307,
"labels": [
"FAC"
],
"start": 7282,
"text": "\nX. MRD is partly manual."
}
},
{
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"id": "637c4b893b694d3887bfc0f224f4b334",
"to_name": "text",
"type": "labels",
"value": {
"end": 7371,
"labels": [
"FAC"
],
"start": 7308,
"text": "XI. Facilities in Central Research Laboratory are not adequate."
}
},
{
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"id": "f3c4757d98dd43e4931870248692e65c",
"to_name": "text",
"type": "labels",
"value": {
"end": 7426,
"labels": [
"FAC"
],
"start": 7371,
"text": "\n There are NIL ongoing or completed research projects."
}
},
{
"from_name": "label",
"id": "13d5ca55794e4a48bbd49e099018edda",
"to_name": "text",
"type": "labels",
"value": {
"end": 7437,
"labels": [
"FAC"
],
"start": 7427,
"text": "XII. RHTC:"
}
},
{
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"id": "7c0e85753ddc44d9a2779a6194265d01",
"to_name": "text",
"type": "labels",
"value": {
"end": 7477,
"labels": [
"FAC"
],
"start": 7438,
"text": "Cold Chain equipment are not available."
}
},
{
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"id": "d7a86c3f57b8464bbd2ebcf7fde329c2",
"to_name": "text",
"type": "labels",
"value": {
"end": 7551,
"labels": [
"FAC"
],
"start": 7478,
"text": "Survey / MCH / Immunization / Family Welfare registers are not available."
}
},
{
"from_name": "label",
"id": "d3e1382173de46168f467f7f2fd25d61",
"to_name": "text",
"type": "labels",
"value": {
"end": 7619,
"labels": [
"FAC"
],
"start": 7552,
"text": "No activities under National Health Programmes are carried out."
}
},
{
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"id": "2d2596df09b442c084f912f53f56c4c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 7631,
"labels": [
"FAC"
],
"start": 7620,
"text": "XIII. UHCC:"
}
},
{
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"id": "30240664bdd04f609a4f8f3634c113bb",
"to_name": "text",
"type": "labels",
"value": {
"end": 7671,
"labels": [
"FAC"
],
"start": 7632,
"text": "Cold Chain equipment are not available."
}
},
{
"from_name": "label",
"id": "a4f0881978fe48358c9b6f786a98ce27",
"to_name": "text",
"type": "labels",
"value": {
"end": 7750,
"labels": [
"FAC"
],
"start": 7672,
"text": "Survey / MCH / Immunization / Family Welfare Registers are not available.\"\n 4."
}
},
{
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"id": "ca56c60aeef14993ae62ac124a4a5779",
"to_name": "text",
"type": "labels",
"value": {
"end": 8007,
"labels": [
"FAC"
],
"start": 7751,
"text": "The Executive Committee of Respondent No.2 further decided that Regulation 8(3)(1)(b)1 of the Establishment of Medical College Regulations, 1999 (\"the MCI Regulations\") should be invoked in view of the deficiencies found in the bed occupancy and residents."
}
},
{
"from_name": "label",
"id": "1c11db6aa284495bba8018ee852764d9",
"to_name": "text",
"type": "labels",
"value": {
"end": 8085,
"labels": [
"FAC"
],
"start": 8008,
"text": "The said decision of Respondent No.2 was approved by the Oversight Committee."
}
},
{
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"id": "9108a71d088141ab82c3c1bb6b3a823a",
"to_name": "text",
"type": "labels",
"value": {
"end": 8322,
"labels": [
"FAC"
],
"start": 8085,
"text": "\n 1 Regulation 8 (3)(1)- The permission to establish a medical college and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets."
}
},
{
"from_name": "label",
"id": "c56c4fb863be4d2491668405226fd24d",
"to_name": "text",
"type": "labels",
"value": {
"end": 8508,
"labels": [
"FAC"
],
"start": 8323,
"text": "It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal [as per latest time schedule] prior to the expiry of the initial permission."
}
},
{
"from_name": "label",
"id": "81b3cd4834894776aadcb4800ca84948",
"to_name": "text",
"type": "labels",
"value": {
"end": 8731,
"labels": [
"FAC"
],
"start": 8509,
"text": "This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted."
}
},
{
"from_name": "label",
"id": "79200118447249788895990c38aa0638",
"to_name": "text",
"type": "labels",
"value": {
"end": 8835,
"labels": [
"FAC"
],
"start": 8732,
"text": "Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled."
}
},
{
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"id": "ea9f75d6ad3e4be4946dcd59c22b9b32",
"to_name": "text",
"type": "labels",
"value": {
"end": 8985,
"labels": [
"FAC"
],
"start": 8836,
"text": "The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies."
}
},
{
"from_name": "label",
"id": "f3434ec9615745cabc3696ba10f68db0",
"to_name": "text",
"type": "labels",
"value": {
"end": 9382,
"labels": [
"FAC"
],
"start": 8987,
"text": "(b)- Colleges in the stage of III & IV renewal (i.e. Admission of fourth & fifth batch): [If it is observed during any inspection of the Institute that the deficiency of teaching faculty and / or Residents is more than 20% and / or bed occupancy is < 65%, compliance of rectification of deficiencies from such an institute will not be considered for renewal of permission in that Academic Year.]"
}
},
{
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"id": "f07e3ed7ee7048b2a8408a5b793f7f1e",
"to_name": "text",
"type": "labels",
"value": {
"end": 9533,
"labels": [
"FAC"
],
"start": 9383,
"text": "5. Respondent No.2 directed the College to discharge all the students admitted for the academic year 2017-18 by its letter dated 29th September, 2017."
}
},
{
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"id": "553bd01daf5b4934a8ecdb90e0ce2557",
"to_name": "text",
"type": "labels",
"value": {
"end": 9743,
"labels": [
"FAC"
],
"start": 9534,
"text": "The Principal Secretary (Medical Division Department), Government of Madhya Pradesh- Respondent No.3- herein was requested to cancel the admission of students made in the College for the academic year 2017-18."
}
},
{
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"id": "403dae48bc4c4990a86e8754699b1620",
"to_name": "text",
"type": "labels",
"value": {
"end": 9888,
"labels": [
"FAC"
],
"start": 9743,
"text": "\n 6. The communications dated 29th September, 2017 to the College and the Respondent No.3 are subject matter of challenge in this Writ Petition."
}
},
{
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"id": "ed61948f4183463db11c510c838dfe70",
"to_name": "text",
"type": "labels",
"value": {
"end": 10021,
"labels": [
"FAC"
],
"start": 9889,
"text": "The College sought a further direction that a fresh inspection should be conducted strictly in accordance with the Assessor's Guide."
}
},
{
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"id": "ee25bce1eb2642deb6425d7aa19be9a2",
"to_name": "text",
"type": "labels",
"value": {
"end": 10146,
"labels": [
"FAC"
],
"start": 10022,
"text": "While issuing notice on 23rd October, 2017, this Court stayed the operation of the communication dated 29th September, 2017."
}
},
{
"from_name": "label",
"id": "ea36dc14723a49d399f6d65a4151d214",
"to_name": "text",
"type": "labels",
"value": {
"end": 10337,
"labels": [
"FAC"
],
"start": 10147,
"text": "On 24th October, 2017 it was clarified that the students admitted as per the order dated 14th August, 2017 in SLP (Civil) No. 20400 of 2017 shall be permitted to continue with their studies."
}
},
{
"from_name": "label",
"id": "ea17fcb62d5044b9929b0c98371b84cf",
"to_name": "text",
"type": "labels",
"value": {
"end": 10611,
"labels": [
"FAC"
],
"start": 10338,
"text": "Thereafter, on a consideration of the Assessment Report pursuant to the inspection dated 25th & 26th September, 2017 and the submissions made on behalf of both sides, this Court by an order dated 14th December, 2017 directed the admission of the students to be cancelled."
}
},
{
"from_name": "label",
"id": "b08013a95498498a868c7e63e58dd13f",
"to_name": "text",
"type": "labels",
"value": {
"end": 10747,
"labels": [
"FAC"
],
"start": 10612,
"text": "This Court took note of the order dated 14th August, 2017 which made the admission of students subject to the result of the inspection."
}
},
{
"from_name": "label",
"id": "81983ad555094d898b96af342dacedb9",
"to_name": "text",
"type": "labels",
"value": {
"end": 10983,
"labels": [
"FAC"
],
"start": 10748,
"text": "As the students were found not to be complicit and not having any role to play in non-compliance of the requisite standards by the College, this Court considered it expedient to direct the students to be accommodated in other colleges."
}
},
{
"from_name": "label",
"id": "c87574bfc91c4480876d7e236ac501d8",
"to_name": "text",
"type": "labels",
"value": {
"end": 11307,
"labels": [
"FAC"
],
"start": 10984,
"text": "By referring to the Assessment Report pursuant to the inspection done on 25th & 26th September, 2017, learned Senior Counsel for Respondent Nos. 1 and 2 submitted that the College was indulging in fraud by showing persons who were not sick as patients only for the purpose of showing compliance of the minimum requirements."
}
},
{
"from_name": "label",
"id": "c43735b7f91146e9b6910d5afa4d523e",
"to_name": "text",
"type": "labels",
"value": {
"end": 11435,
"labels": [
"FAC"
],
"start": 11308,
"text": "The learned Senior Counsel appearing for the College refuted the said contention and argued that all the patients were genuine."
}
},
{
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"id": "aeaa07de2436453cbacba967fb502709",
"to_name": "text",
"type": "labels",
"value": {
"end": 11695,
"labels": [
"FAC"
],
"start": 11436,
"text": "As this Court was in no position to determine the truth or otherwise of the allegations, an enquiry was directed to be conducted into the correctness of the statistics, reports and material placed before this Court by the College along with the Writ Petition."
}
},
{
"from_name": "label",
"id": "f798f479c3464ab6a6c96db7827b4ca9",
"to_name": "text",
"type": "labels",
"value": {
"end": 11760,
"labels": [
"FAC"
],
"start": 11696,
"text": "For the said purpose, a committee was constituted by this Court."
}
},
{
"from_name": "label",
"id": "ba494b48ce4f4027be9fab3eda313cf6",
"to_name": "text",
"type": "labels",
"value": {
"end": 11976,
"labels": [
"FAC"
],
"start": 11761,
"text": "A senior officer deputed by the Director, Central Bureau of Investigation (CBI), was directed to head the Committee which would have two doctors of the All India Institute of Medical Sciences (AIIMS) as its members."
}
},
{
"from_name": "label",
"id": "074897b08367461cb33d61374c8baa3f",
"to_name": "text",
"type": "labels",
"value": {
"end": 12254,
"labels": [
"FAC"
],
"start": 11977,
"text": "It is relevant to note that in the said order dated 14th December, 2017 it was made clear that the College may have to face prosecution under Section 193 of the Indian Penal Code, 1860 (IPC) if the allegations made by Respondent No.2 were found to be correct."
}
},
{
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"id": "91ddfb46a25344fb9f254a7d8260cd45",
"to_name": "text",
"type": "labels",
"value": {
"end": 12419,
"labels": [
"FAC"
],
"start": 12255,
"text": "The decision to constitute a committee by this Court was arrived at after a thorough examination of the voluminous material placed on record by the College."
}
},
{
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"id": "2568ffa015f947aeae56223fe1c0f2b9",
"to_name": "text",
"type": "labels",
"value": {
"end": 12530,
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"text": "The material was constituted of several photographs showing patients occupying the beds and their case sheets."
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"text": "A bare perusal of the photographs did not convince us that the patients were genuine."
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"text": "After a close scrutiny of the case sheets, we had serious doubts about the necessity for admission of persons suffering from minor ailments as in-patients."
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"labels": [
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"text": "7. The students who were admitted in the College for the year 2017-18 were directed to be adjusted in the other private medical colleges in the State of Madhya Pradesh for the academic year 2018- 19 by an order passed by this Court on 3rd July, 2018."
}
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"text": "The students were directed to pay the fees to the colleges to which they are admitted."
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],
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"text": "It was mentioned in the said order dated 3rd July, 2018 that the entitlement of the students for refund of the fee paid for admission to the College shall be adjudicated at the final hearing of the Writ Petition."
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"text": "8. The Committee appointed by this Court on 14 th December, 2017 submitted its Report on 12th July, 2018."
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"text": "It was mentioned in the Report inter alia, that the Committee visited the College on 29th January, 2018 around 11.30 a.m. and found that the patient waiting area for OPD Registration was totally empty."
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"text": "After visiting several wards in the hospital, the Committee found that the attendance of patients was abysmally low and the patients shown to be admitted in OPDs/ wards were not in conformity with the actual number of patients."
}
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"text": "It was further stated in the Report that a scrutiny of the medical case files of the in-patients showed that their admission was not necessary."
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"text": "The case duty rosters for duty doctors as well as nurses were not available in the wards and the junior doctors on duty were not able to identify and confirm who had written the case notes/ progress notes on the case files."
}
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"text": "9. The Committee collected the medical sheets of 435 patients who were shown to have been admitted in the hospital on the date of the inspection conducted on 25th & 26th September, 2017."
}
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"text": "The hard disk that was obtained from the hospital for verification of the details of patients who were admitted prior to 7th January, 2018 was edamined by the CBI."
}
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"text": "It was found that the hard disk was empty and did not contain any data."
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"text": "The conclusion of the Committee after a detailed enquiry revealed the following: \"i."
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"end": 15062,
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"text": "The petitioner college has claimed that 6 doctors namely, Dr. Ritesh Kumawat, Dr. MR Gaikwad, SB Petkar, Dr. Deepak Kaladagi, Dr. Jeetendra Gupta and Dr. Ram Ballabh Thakur couldn't attend the MCI inspection on 25.09.2017 as they were summoned by Court/Police in connection with a motor accident case."
}
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"text": "\n However, such claim was found to be incorrect."
}
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"end": 15373,
"labels": [
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"start": 15112,
"text": "ii. All of the six doctors namely, Dr. Ritesh Kumawat, Dr.\n MR Gaikwad, SB Petkar, Dr. Deepak Kaladagi, Dr.\n Jeetendra Gupta, Dr. Ram Ballabh Thakur, when examined, denied having received any notice from police regarding the motor accident."
}
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{
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"end": 15561,
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],
"start": 15375,
"text": "iii. Out of the 10 doctors (Sr. Residents/ Jr.\n Residents) who were not counted by the assessors on the strength of the petitioner college as faculty on"
}
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"end": 15654,
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"text": " the ground that they were not residing in the college hostel, 9 doctors could be contacted,"
}
},
{
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"end": 15867,
"labels": [
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],
"start": 15655,
"text": "Examination of those 9 doctors revealed : 07 doctors confirmed during enquiry that they were not staying in the hostel in the college campus and they themselves had conveyed the MCI assessors in this regard."
}
},
{
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"end": 15966,
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],
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"text": "It is mandatory to stay in hostel as per Assessor's Guide issued by MCI for academic year 2018-19."
}
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"labels": [
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],
"start": 15966,
"text": "\n The other two resident doctors, i.e. Dr.\n Meenal Parmar and Dr. Arpita Mishra, stated that they were staying in the hostel but were not considered on the strength of the college by the MCI assessors."
}
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"start": 16180,
"text": "\n iv. Out of the 8 resident doctors which petitioner college had claimed to be on night duty and so couldn't appear before MCI assessors by 11 AM, enquiry revealed that: Out of the above mentioned 8 resident doctors, 6 doctors stated that they were not on payroll of the petitioner college on the day of inspection i.e.\n 25.09.2017."
}
},
{
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"end": 16592,
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"text": "Even 4 of those doctors had stated that they never joined the hospital."
}
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"end": 16703,
"labels": [
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"start": 16594,
"text": "1 doctor (Dr. Ritesh Kumawat) stated that he was not present on the day of the inspection, i.e. 25.09.2017.\n "
}
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"end": 16906,
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"text": "And another doctor Dr. Devyani Patel was present on 25.09.2017 but she was rightly excluded by the MCI assessors as she couldn't make her presence by 12 noon (which was mandated as per Assessor's Guide)."
}
},
{
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"end": 17059,
"labels": [
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"text": "\n v. The 3 doctors namely Dr. Priyank Jain, Dr. Manoj Sahu and Dr. Amit Jain, who were not treated as Sr.\n Resident doctors by the MCI assessors"
}
},
{
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"value": {
"end": 17221,
"labels": [
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],
"start": 17060,
"text": "doesn't seem to be justifiable considering the fact that all three of them were treated as Sr. Resident Doctors on earlier inspection on 05.01.2017.\nvi."
}
},
{
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"end": 17306,
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],
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"text": "Two tutors who have been shown as present in the assessment by the college had not "
}
},
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"value": {
"end": 17356,
"labels": [
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],
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"text": "attended the assessment proceedings on 25.09.2017."
}
},
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"value": {
"end": 17382,
"labels": [
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],
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"text": " addresses vii."
}
},
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"value": {
"end": 17625,
"labels": [
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],
"start": 17383,
"text": "Due to vague and incomplete type of the mentioned in the record of the petitioner college, most of the patients could not be located as merely the names of the colonies and sub areas have been found to be mentioned on the patient case sheets."
}
},
{
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"value": {
"end": 17720,
"labels": [
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],
"start": 17626,
"text": "In the identified 21 patients, 8 are the employees/ students of various RKDF institutions."
}
},
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"value": {
"end": 17952,
"labels": [
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],
"start": 17722,
"text": "xiv. On the basis of the medical analysis of the case sheets of the patients most doctors from AIIMS are of the similar view that it is doubtful that all these patients were actually admitted and that too for such a long duration."
}
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{
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"end": 18094,
"labels": [
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],
"start": 17953,
"text": "xv. Most of the doctors are also of the opinion that the range of cases shown to be admitted was grossly inadequate for training of students."
}
},
{
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"value": {
"end": 18288,
"labels": [
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],
"start": 18095,
"text": "xvi. The doctors were also of the opinion that in most of the case sheets prescriptions, operative notes, etc.\n appears to have been written by the same person in a very unprofessional manner."
}
},
{
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"value": {
"end": 18352,
"labels": [
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],
"start": 18289,
"text": "Also histopathological reports are very sketchy and incomplete."
}
},
{
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"value": {
"end": 18552,
"labels": [
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],
"start": 18353,
"text": "xvii. Dr. S.C. Sharma, Professor and HoD, ENT Department, AIIMS has examined 14 medical sheets of the patients shown on bed in ENT Department of petitioner's college on 25/25.09.2017."
}
},
{
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"id": "2e2ddd984083494d97e0c113ede59052",
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"value": {
"end": 18617,
"labels": [
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],
"start": 18553,
"text": "As per his opinion most of the patients appear to be fictitious."
}
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{
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"end": 18625,
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"text": "xviii."
}
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"value": {
"end": 18809,
"labels": [
"FAC"
],
"start": 18626,
"text": "Dr. H.L. Nag, Professor, Orthopedics, AIIMS has examined 52 medical sheets of the patients shown on bed in Orthopedics Department of petitioner's college on 25/26.09.2017."
}
},
{
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"id": "ae247a22161844eb94c92049d21b4916",
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"end": 18899,
"labels": [
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],
"start": 18810,
"text": "He held that majority of those cases could have been managed without hospital admissions."
}
},
{
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"value": {
"end": 19106,
"labels": [
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],
"start": 18900,
"text": "xix. Dr. Naval Kishore Vikram, Professor General Medicine AIIMS has examined 97 medical patients of General Medicine and 12 patients of TB & & Chest Department who were shown to be on bed on 25/26.09.2017."
}
},
{
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"id": "e74cad8793a7423d95755bc9a4309847",
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"value": {
"end": 19210,
"labels": [
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],
"start": 19107,
"text": "He has concluded that it appears doubtful that those patients were actually admitted in the hospital."
}
},
{
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"id": "918c75b778664975ad27d97549bcafb5",
"to_name": "text",
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"value": {
"end": 19307,
"labels": [
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],
"start": 19211,
"text": "Most of the patients appear to be over treated by various medications, particularly antibiotics."
}
},
{
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"id": "e6269f32dd5b4130b437a228d97d5a3d",
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"value": {
"end": 19437,
"labels": [
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],
"start": 19308,
"text": "He also held that most of the cases had limited number of diagnosis which is grossly inadequate for training of medical students."
}
},
{
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"value": {
"end": 19500,
"labels": [
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],
"start": 19437,
"text": "\n xx. Dr. Pankaj Hari, Professor Paediatrics Department, AIIMS"
}
},
{
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"id": "bab8421913ac4bcb834f1f878519d66e",
"to_name": "text",
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"value": {
"end": 19640,
"labels": [
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],
"start": 19501,
"text": "has examined 62 medical sheets of the patients shown on bed in Paediatrics Department of petitioner's college on 25/26.09.2017."
}
},
{
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"id": "38e62fd7d0714f91be7ea7761f020dc5",
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"value": {
"end": 19773,
"labels": [
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],
"start": 19641,
"text": "He concluded that the admitted cases have limited diagnosis which is quite inadequate for training of students in a medical college."
}
},
{
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"id": "7649d5fcf935446e91cd6853f73b082e",
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"value": {
"end": 19845,
"labels": [
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],
"start": 19774,
"text": "He also raised doubt over the authenticity of those medical files."
}
},
{
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"value": {
"end": 20060,
"labels": [
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],
"start": 19846,
"text": "xxi. Dr. Vinod K. Khetan, Professor, Department of Dermatology and Venerelogy, AIIMS, examined 10 medical sheets of the patients shown on bed in Dermatology department of petitioner's college on 25/2609.2017."
}
},
{
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"id": "75ed7fd6797a499a97dd07ae73685f04",
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"value": {
"end": 20143,
"labels": [
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],
"start": 20061,
"text": "He raised serious doubts over the authenticity of patient being actually admitted."
}
},
{
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"id": "82f043e83c0347d68443556f5a975afe",
"to_name": "text",
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"value": {
"end": 20262,
"labels": [
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],
"start": 20144,
"text": "He also opined that the range of cases admitted and their work- up is grossly inadequate for the training of students."
}
},
{
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"id": "2cf4c3a1ac2648e39f6989729950a33b",
"to_name": "text",
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"value": {
"end": 20309,
"labels": [
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],
"start": 20294,
"text": "Opthalmic xxii."
}
},
{
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"id": "3928d0cbd5f84619ab20a8b331c9f8f3",
"to_name": "text",
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"value": {
"end": 20568,
"labels": [
"FAC"
],
"start": 20310,
"text": "Dr. Namrata Sharma, Professor, Deptt. of Sciences, AIIMS has concluded that in out of total 17 cases, admission of the 02 patients was required whereas in all other cases patient could have been managed under day care OPD. Psychiatry, xxiii."
}
},
{
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"id": "5f28f135916a47b1a0d9015d5c0a3b9d",
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"value": {
"end": 20751,
"labels": [
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],
"start": 20569,
"text": "Dr. Mamta Sood, Professor, Deptt. of AIIMS examined 08 medical sheets of the patients shown on bed in Psychiatry Department of petitioner's college on 25th / 26.09.2017."
}
},
{
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"id": "ee7762745d6b4a43bba1d82a51c31c32",
"to_name": "text",
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"value": {
"end": 20908,
"labels": [
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],
"start": 20752,
"text": "Though she mostly agreed that the treatment shown to be given to the patients was appropriate, but she opined that they didn't require to be admitted."
}
},
{
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"value": {
"end": 21143,
"labels": [
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],
"start": 20909,
"text": "xxiv. Dr. Ongikla Bhutia, Professor, Division of Oral Maxillofacil Surgery, AIIMS examined 11 medical sheets of the patients shown on bed in Oral Maxillofacial Surgery Department of petitioner's college on 25/26.09.2017."
}
},
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"text": "The doctor opined that the diagnosis appeared repetitive."
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"text": " Neither pre- operative radiography nor post operative radiography were found on record."
}
},
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"text": "Consent from for the surgery was also found to be absent in some cases."
}
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],
"start": 21387,
"text": "xxv. Dr. Deepika Deka, Professor, Deptt. of Obstetrics and Gynaecology, AIIMS had examined 56 medical sheets of the patients shown on bed in Obstetrics and Gynaecology Department of petitioner's college on 25/26.09.2017."
}
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"text": "She raised doubt whether actual surgery was performed or not."
}
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"text": "She also raised doubt over the genuineness of the admissions shown for those patients."
}
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"text": "\n viii."
}
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"text": "Dr. Subodh Kumar, Professor, Deptt. of Surgical Disciplines, AIIMS examined 96 medical sheets of the patients on bed on 25/26.09.2017."
}
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"text": "He raised serious doubt over the genuineness of patients actually admitted."
}
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],
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"text": "He also held that spectrum of cases shown to be admitted was grossly inadequate for training of students.\""
}
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"text": "\n 10. When the matter was listed on 5th December, 2018, Shri Vivek Tankha, learned Senior Counsel appearing for the College, submitted that the College intends to submit an apology for the lapses on their part."
}
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"text": "He requested us to give a quietus to this matter."
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"text": "He submitted that there are students presently studying in the institution who would be affected by any adverse order passed against the College."
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"labels": [
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],
"start": 22502,
"text": "\n 11. It has been brought to our notice by the Respondent No.2- MCI that during the inspection conducted on 23 rd & 24th February, 2015 for the purpose of granting admission for the academic year 2014-15, it was found that there were patients who were fake and others who had been admitted without any significant illness."
}
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"end": 23230,
"labels": [
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"start": 22826,
"text": "The MCI was constrained to invoke Regulation 8(3)(1)(a)2 and 2 Regulation 8 (3)(1) The permission to establish a medical college and admit students may be granted initially for a period of one year and may be renewed on yearly basis Regulation 8(3)(1)(d)3 of the MCI Regulations in view of the College submitting forged/ fake documents for the purpose of showing compliance with the minimum requirements."
}
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"end": 23467,
"labels": [
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],
"start": 23231,
"text": "A complaint was made by Dr. A.K. Banerjee, Ex-Associate Professor of Surgery of the College on 25th March, 2015 alleging that more than 50% of the doctors who were shown as full-time Faculty Members were full-time private practitioners."
}
},
{
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"id": "f09138f4437a4f07ad03cb2d238f28ed",
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"value": {
"end": 23581,
"labels": [
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],
"start": 23468,
"text": "Dr. Paresh Ruparel who was shown as a Professor of subject to verification of the achievements of annual targets."
}
},
{
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"id": "f276d30557264252ae57d211a7ecbc47",
"to_name": "text",
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"value": {
"end": 23767,
"labels": [
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],
"start": 23582,
"text": "It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal [as per latest time schedule] prior to the expiry of the initial permission."
}
},
{
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"id": "c09a0192350548e5a009130327b2e3d6",
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"end": 23990,
"labels": [
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],
"start": 23768,
"text": "This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted."
}
},
{
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"id": "da6d3e35bc384dc28434ca994a80b14e",
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"value": {
"end": 24094,
"labels": [
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],
"start": 23991,
"text": "Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled."
}
},
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"id": "e3633c09fd074ea9ab411792f8720639",
"to_name": "text",
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"end": 24244,
"labels": [
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],
"start": 24095,
"text": "The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies."
}
},
{
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"id": "4aa4e215cc0a40ee9df54f6606138942",
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"value": {
"end": 24735,
"labels": [
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],
"start": 24246,
"text": "(a) Colleges in the stage of Letter of Permission upto II renewal (i.e.\nAdmission of third batch): [If it is observed during any inspection/assessment of the institute that the deficiency of teaching faculty and/or Residents is more than 30% and/or bed occupancy is < 50% (45% in North East, Hilly Terrain, etc.), compliance of rectification of deficiencies from such an institute will not be considered for issue of Letter of Permission (LOP)/renewal of permission in that Academic Year.]"
}
},
{
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"id": "edc260e059d0446bbe2dd7aa43fbbf47",
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"value": {
"end": 24841,
"labels": [
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],
"start": 24736,
"text": "3 Regulation 8(3)(1)(d) Colleges which are found to have employed teachers with faked / forged documents:"
}
},
{
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"id": "7d1a8b5972fb43d9a303a2fd64eb7e54",
"to_name": "text",
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"value": {
"end": 25249,
"labels": [
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],
"start": 24842,
"text": "If it is observed that any institute is found to have employed a teacher with faked / forged documents and have submitted the Declaration Form of such a teacher, such an institute will not be considered for renewal of permission / recognition for award of M.B.B.S. degree / processing the applications for postgraduate courses for two Academic Years i.e. that Academic Year and the next Academic Year also."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 25460,
"labels": [
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],
"start": 25251,
"text": "[However, the office of the Council shall ensure that such inspections are not carried out at least 2 days before and 2 days after important religious and festival holidays declared by the Central/State Govt.]"
}
},
{
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"id": "ffc2fb32dfd24435ba8f00190f370b34",
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"value": {
"end": 25562,
"labels": [
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],
"start": 25461,
"text": "Bracketed portions substituted/ modified/ aletered in terms of Gazette Notification dated 18.03.2016."
}
},
{
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"id": "89ab4c7e1c134cd4914e1e52abacd750",
"to_name": "text",
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"value": {
"end": 25721,
"labels": [
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],
"start": 25562,
"text": "\n Surgery in the College was working as a surgeon at V.S. Hospital affiliated to MHL Medial College, Ahmedabad and was also running a private hospital. "
}
},
{
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"id": "d07c8379fcd640288795708d083b9629",
"to_name": "text",
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"value": {
"end": 25812,
"labels": [
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],
"start": 25721,
"text": "Dr Ruparel was referred to Ethics Committee and he was suitably dealt with for misdemeanor."
}
},
{
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"id": "aa970efc1f7e4785aeed92f4544eb45d",
"to_name": "text",
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"value": {
"end": 25966,
"labels": [
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],
"start": 25813,
"text": "Without delving deep into the details of the Report submitted by the Committee, it is clear that the College is guilty of practicing fraud on this Court."
}
},
{
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"id": "45cae5d00d0b44f08ecefcbca6715665",
"to_name": "text",
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"value": {
"end": 26186,
"labels": [
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],
"start": 25967,
"text": "The conduct of the College administration in indulging in manipulations and hoodwinking the authorities to project compliance of the requisite minimum standards for admission of students does not deserve to be condoned."
}
},
{
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"id": "72e9f926bc3e4abbbaad58c9c568a9de",
"to_name": "text",
"type": "labels",
"value": {
"end": 26393,
"labels": [
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],
"start": 26192,
"text": "The impunity with which the College has manufactured records to convince us that they were being unnecessarily hounded by the MCI in spite of their compliance with the required standards is deprecated."
}
},
{
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"id": "6665e946ff634461befeb09cf744be9d",
"to_name": "text",
"type": "labels",
"value": {
"end": 26561,
"labels": [
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],
"start": 26394,
"text": "The brazen attempt by the College in taking this Court for a ride by placing on record maneuvered documents to obtain a favourable order is a clear-cut act of deceit."
}
},
{
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"id": "d06a44906cc946758d534f9bb2eed845",
"to_name": "text",
"type": "labels",
"value": {
"end": 26683,
"labels": [
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],
"start": 26562,
"text": "The justification given by the College regarding the absence of certain residents has turned out to be a concocted story."
}
},
{
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"id": "9ee58a5a23c445d5a330f10e6670f9b6",
"to_name": "text",
"type": "labels",
"value": {
"end": 26820,
"labels": [
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],
"start": 26684,
"text": "Had we not initiated an enquiry by the Committee of Experts, the fraud played by the College on this Court would not have come to light."
}
},
{
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"id": "eb82c18110574c96b12467855542077f",
"to_name": "text",
"type": "labels",
"value": {
"end": 26896,
"labels": [
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],
"start": 26821,
"text": "It is trite that every litigant has to approach the Court with clean hands."
}
},
{
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"id": "6e0860793db546f2aa22196eea0befe1",
"to_name": "text",
"type": "labels",
"value": {
"end": 26998,
"labels": [
"ANALYSIS"
],
"start": 26897,
"text": "A litigant who indulges in suppression of facts and misrepresentation is not entitled for any relief."
}
},
{
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"id": "1da21f669e294dc8b7a60d94c1b4addb",
"to_name": "text",
"type": "labels",
"value": {
"end": 27175,
"labels": [
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],
"start": 26999,
"text": "The conduct of the College in this case to mislead this Court for the purpose of getting a favourable order is reprehensible and the College deserves to be dealt with suitably."
}
},
{
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"id": "56cbebbcdfd340c0909b41165a9f6013",
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"value": {
"end": 27274,
"labels": [
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],
"start": 27176,
"text": "12. In Re. Suo Motu Proceedings against R. Karuppan, Advocate4, this Court observed as under: \"13."
}
},
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"id": "5621a24a709847ae8a5f688362393cea",
"to_name": "text",
"type": "labels",
"value": {
"end": 27494,
"labels": [
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],
"start": 27275,
"text": "Courts are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining the criminal liability of the offenders for offences committed against the society."
}
},
{
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"id": "f4251a391ce748a6a21579b80f572b21",
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"value": {
"end": 27615,
"labels": [
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],
"start": 27495,
"text": "The courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations."
}
},
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"id": "41f274c564a34e4dbde5c49e525a3948",
"to_name": "text",
"type": "labels",
"value": {
"end": 27888,
"labels": [
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],
"start": 27616,
"text": "Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon false evidence particularly in cases, the adjudication of which is dependent upon the statement of facts."
}
},
{
"from_name": "label",
"id": "fafda4487a4d4259b419315e31bf2615",
"to_name": "text",
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"value": {
"end": 28062,
"labels": [
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],
"start": 27889,
"text": "If the result of the proceedings are to be respected, these issues before the courts must be resolved to the extent possible in accordance 4 (2001) 5 SCC 289 with the truth."
}
},
{
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"id": "aea1bd2777a24aeca2fd57a317ed29bf",
"to_name": "text",
"type": "labels",
"value": {
"end": 28317,
"labels": [
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],
"start": 28063,
"text": "The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent."
}
},
{
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"id": "83d3ee0159aa44bdaf8fa152811046d5",
"to_name": "text",
"type": "labels",
"value": {
"end": 28464,
"labels": [
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],
"start": 28318,
"text": "Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy.\""
}
},
{
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"id": "8fc41ce781cc422e9fe5182e64963ff8",
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"type": "labels",
"value": {
"end": 28542,
"labels": [
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],
"start": 28466,
"text": "In Mohan Singh v. Amar Singh5 case, it was observed by this Court : \"36. ..."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 28709,
"labels": [
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],
"start": 28542,
"text": "Tampering with the record of judicial proceedings and filing of false affidavit in a court of law has the tendency of causing obstruction in the due course of justice."
}
},
{
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"id": "c23611350adc483a8de497d9e42ca5d2",
"to_name": "text",
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"value": {
"end": 28829,
"labels": [
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],
"start": 28710,
"text": "It undermines and obstructs free flow of the unsoiled stream of justice and aims at striking a blow at the rule of law."
}
},
{
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"id": "d2339508565b45039e59df259a14b37d",
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"type": "labels",
"value": {
"end": 28980,
"labels": [
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],
"start": 28830,
"text": "The stream of justice has to be kept clear and pure and no one can be permitted to take liberties with it by soiling its purity.\" Mr. S.S.\n13."
}
},
{
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"id": "232182ccaa3f4df7b993c1725299a54e",
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"value": {
"end": 29217,
"labels": [
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],
"start": 28981,
"text": "In the affidavit filed along with the Writ Petition, Kushwaha, Dean of the R.K.D.F. Medical College Hospital and Research Centre stated that the contents in the Writ Petition are true and correct to the best of his knowledge and belief."
}
},
{
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"to_name": "text",
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"value": {
"end": 29451,
"labels": [
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],
"start": 29218,
"text": "According to the 5 (1998) 6 SCC 686 College, the Assessment Report pursuant to the inspection conducted on 25th and 26th September, 2017 was unfair as the justification for the absence of six members of the faculty was not accepted."
}
},
{
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"to_name": "text",
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"end": 29729,
"labels": [
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],
"start": 29452,
"text": "The averment in the Writ Petition is to the effect that the said six doctors who had received summons from the Sub-Inspector of Police, Bairagarh were at the police station at 11 a.m. on 25 th September, 2017 in connection with the complaint relating to a motor accident case."
}
},
{
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"value": {
"end": 29856,
"labels": [
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],
"start": 29730,
"text": "The Committee enquired into the correctness of the claim made by the College regarding the absence of the six faculty members."
}
},
{
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"value": {
"end": 30033,
"labels": [
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],
"start": 29857,
"text": "Mr. Mohan Sharma, Assistant Sub-Inspector of Police of Bairagarh Police Station stated that there was no such notice issued for summoning the six doctors to the police station."
}
},
{
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"value": {
"end": 30254,
"labels": [
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],
"start": 30034,
"text": "On further enquiry, the six doctors namely Dr. Ritesh Kumawat, Dr. MR Gaikwad, SB Petkar, Dr. Deepak Kaladagi, Dr. Jeetendra Gupta and Dr. Ram Ballabh Thakur denied having received any notice from the police station."
}
},
{
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"value": {
"end": 30345,
"labels": [
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],
"start": 30255,
"text": "Dr. Ritesh Kumawat further denied having filed any complaint regarding the motor accident."
}
},
{
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"id": "50a2322adff2477590dc9af34ffc939a",
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"value": {
"end": 30502,
"labels": [
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],
"start": 30346,
"text": " On the basis of the above findings of the Committee, it is clear that a false statement has been made by the College on the basis of a fabricated document."
}
},
{
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"labels": [
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],
"start": 30503,
"text": "It was averred in the Writ Petition by the College that there were 365 patients in the hospital at the time of inspection on 25th September, 2017 but the inspection team recorded that there were only seven patients available."
}
},
{
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"value": {
"end": 30839,
"labels": [
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],
"start": 30730,
"text": "In support of the submission, reliance was placed on the computerized data of the Medical Records Department."
}
},
{
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"value": {
"end": 31038,
"labels": [
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],
"start": 30840,
"text": "The hard disk that was collected by the Committee to study the details of the patients who were admitted in the hospital prior to January, 2018 turned out to be empty and no data could be retrieved."
}
},
{
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"id": "f3e9bd32f5cb42848401df25db64cf8f",
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"value": {
"end": 31196,
"labels": [
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],
"start": 31039,
"text": "The assertion made by the College regarding the genuineness of the patients in the hospital turned out to be false in the enquiry conducted by the Committee."
}
},
{
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"id": "d277626ff62f4bb096ad70ce2390a336",
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"end": 31274,
"labels": [
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],
"start": 31197,
"text": "The Committee had serious doubts whether the patients were actually admitted."
}
},
{
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"id": "224b92f3f94c4b88b70f0bb24f512de4",
"to_name": "text",
"type": "labels",
"value": {
"end": 31411,
"labels": [
"ANALYSIS"
],
"start": 31275,
"text": "Most of the case sheets, prescriptions, operative notes, etc. appeared to be written by the same person in a very unprofessional manner."
}
},
{
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"id": "8d970a6dfca04bfd88d5f8852d9cbcf6",
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"value": {
"end": 31487,
"labels": [
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],
"start": 31412,
"text": " The histopathological reports were found to be sketchy and incomplete."
}
},
{
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"id": "cfb3ce8d415e4403862805bfd2b660fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 31632,
"labels": [
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],
"start": 31488,
"text": "On a thorough examination of the case sheets, the experts from AIIMS opined that admission of the patients was unnecessary in a number of cases."
}
},
{
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"id": "7b3268f0381a40a1a3eebaa2beb342ad",
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"value": {
"end": 31762,
"labels": [
"ANALYSIS"
],
"start": 31633,
"text": "In view of the fake and incomplete addresses mentioned in the records of the hospital, most of the patients could not be located."
}
},
{
"from_name": "label",
"id": "14aa301dd6b045eda314c0056cf4f52b",
"to_name": "text",
"type": "labels",
"value": {
"end": 31868,
"labels": [
"ANALYSIS"
],
"start": 31763,
"text": "Only 21 patients were identified and 8 out of these turned out to be employees/ students of the College."
}
},
{
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"id": "1b3504f2a24a4c8bb04168ef5eaf770a",
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"value": {
"end": 32052,
"labels": [
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],
"start": 31869,
"text": "All this goes to show that the College has indulged in large scale malpractices in showing compliance of the minimum required standards to obtain permission for admission of students."
}
},
{
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"id": "0f9146149eaa4fbbae7c9f307d7e6e71",
"to_name": "text",
"type": "labels",
"value": {
"end": 32187,
"labels": [
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],
"start": 32053,
"text": "The College further tried to mislead this Court that it is compliant in all respects, to get permission for the admission of students."
}
},
{
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"id": "1b94282f887044cb8d68c3467a3b5830",
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"value": {
"end": 32393,
"labels": [
"ANALYSIS"
],
"start": 32187,
"text": "\n 14. The brazen manner in which the College has indulged in relying upon manipulated records to mislead this Court for the purpose of getting favourable order deserves to be dealt with in a serious manner."
}
},
{
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"id": "a3a8f47539524d739451aa47737e3635",
"to_name": "text",
"type": "labels",
"value": {
"end": 32535,
"labels": [
"ANALYSIS"
],
"start": 32394,
"text": "We find that this is a fit case where Mr. S.S. Kushwaha, Dean of the College must be held liable for prosecution under Section 193 IPC.\n 15."
}
},
{
"from_name": "label",
"id": "fed68d9d3fde4285b230eb175d1b8a6d",
"to_name": "text",
"type": "labels",
"value": {
"end": 32673,
"labels": [
"ANALYSIS"
],
"start": 32536,
"text": "There have been instances of errant medical colleges making admissions to the medical courses without obtaining the requisite permission."
}
},
{
"from_name": "label",
"id": "68b7cabf9136436fb197373fcc25fce9",
"to_name": "text",
"type": "labels",
"value": {
"end": 32866,
"labels": [
"ANALYSIS"
],
"start": 32674,
"text": "This Court came down heavily on such deviant colleges by imposing penalties for the illegalities committed by them in the matter of admission and for putting the students' future in jeopardy.6"
}
},
{
"from_name": "label",
"id": "28e82152decb47e683a50cc87089df1c",
"to_name": "text",
"type": "labels",
"value": {
"end": 33243,
"labels": [
"PRE_RELIED"
],
"start": 32867,
"text": "We have noticed a disturbing trend of some medical colleges in projecting fake faculty and patients for obtaining 6 (2015) 4 SCC 580 45.6 -Medical Council of India v. M.G.R. Educational & Research Institute University and (2016) 11 SCC 530 31, 31.2 & 31.4 Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) permission for admission of students."
}
},
{
"from_name": "label",
"id": "9178666d9b094a239b11385a6ba328b3",
"to_name": "text",
"type": "labels",
"value": {
"end": 33428,
"labels": [
"ANALYSIS"
],
"start": 33244,
"text": "The Committee exposes the evil design of the College in resorting to deceitful methods to cheat the authorities concerned and this Court to secure permission for admission of students."
}
},
{
"from_name": "label",
"id": "c9a081a50a9941cd940ef4a403d0a286",
"to_name": "text",
"type": "labels",
"value": {
"end": 33538,
"labels": [
"ANALYSIS"
],
"start": 33429,
"text": "Apart from the prosecution of the Dean, the College is liable to be suitably punished for committing perjury."
}
},
{
"from_name": "label",
"id": "cea9fe0866d04842815328ccdfeacc57",
"to_name": "text",
"type": "labels",
"value": {
"end": 33635,
"labels": [
"ANALYSIS"
],
"start": 33538,
"text": "\n 16. We are unable to persuade ourselves to accept the apology offered on behalf of the College."
}
},
{
"from_name": "label",
"id": "3035ae7992064b10b6eafa9be476f6fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 33826,
"labels": [
"ANALYSIS"
],
"start": 33636,
"text": "The College has been habitually indulging in foul play which is clear from the course of events in 2015 when faculty members were found to have been working elsewhere and running hospitals."
}
},
{
"from_name": "label",
"id": "7845c0181ac94ee481dbae109267143f",
"to_name": "text",
"type": "labels",
"value": {
"end": 33953,
"labels": [
"ANALYSIS"
],
"start": 33838,
"text": "The bravado shown by the College in an attempt to cheat the MCI, the Government and this Court has to be condemned."
}
},
{
"from_name": "label",
"id": "b43604b332734ee39d868bfb464d1f64",
"to_name": "text",
"type": "labels",
"value": {
"end": 34151,
"labels": [
"ANALYSIS"
],
"start": 33954,
"text": "The Committee constituted by this Court is due to the vehemence with which the Counsels appearing for the College were trying to convince us that they are fully compliant with all the requirements."
}
},
{
"from_name": "label",
"id": "c9f47ae6e6ec4814846d427dfac95157",
"to_name": "text",
"type": "labels",
"value": {
"end": 34185,
"labels": [
"ANALYSIS"
],
"start": 34152,
"text": "\"Apology is an act of contrition."
}
},
{
"from_name": "label",
"id": "2fb2ed63afa64b3080300307a4cbfd1b",
"to_name": "text",
"type": "labels",
"value": {
"end": 34331,
"labels": [
"ANALYSIS"
],
"start": 34186,
"text": "Unless apology is offered at the earliest opportunity and in good grace, the apology is shorn of penitence and hence it is liable to be rejected."
}
},
{
"from_name": "label",
"id": "0984f33a3978448b83d1fd9ee261e929",
"to_name": "text",
"type": "labels",
"value": {
"end": 34509,
"labels": [
"ANALYSIS"
],
"start": 34332,
"text": "If the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward.7\""
}
},
{
"from_name": "label",
"id": "b159cf41541e48b79a278bcee6cb4aa7",
"to_name": "text",
"type": "labels",
"value": {
"end": 34779,
"labels": [
"RATIO"
],
"start": 34509,
"text": "\n 17. The students who were admitted in the 1st Year MBBS Course in the College for the academic year 2017-18 were duly cautioned and informed that their admission was purely provisional and they cannot claim any equity if the College was later on found to be deficient."
}
},
{
"from_name": "label",
"id": "2a273a739aa24eb5a1baa5826d8d73f1",
"to_name": "text",
"type": "labels",
"value": {
"end": 34860,
"labels": [
"RATIO"
],
"start": 34779,
"text": "\n They have been directed to be admitted in other colleges for the years 2018-19."
}
},
{
"from_name": "label",
"id": "e33da9df154241669287e21e3c2a55a1",
"to_name": "text",
"type": "labels",
"value": {
"end": 34937,
"labels": [
"RATIO"
],
"start": 34861,
"text": " In the process, students have lost a precious academic year."
}
},
{
"from_name": "label",
"id": "48d128459426488c86946896de6227a8",
"to_name": "text",
"type": "labels",
"value": {
"end": 35040,
"labels": [
"RATIO"
],
"start": 34938,
"text": "However, they are entitled for the refund of the fee collected from them for admission to the College."
}
},
{
"from_name": "label",
"id": "8ba1359ccf544ee3915d88fc7b4ae98b",
"to_name": "text",
"type": "labels",
"value": {
"end": 35117,
"labels": [
"RPC"
],
"start": 35040,
"text": "\n 18. For the aforementioned reasons, we pass the following order: (i) "
}
},
{
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"id": "fb925ce4d54c4c36ba31380be3bfaf18",
"to_name": "text",
"type": "labels",
"value": {
"end": 35296,
"labels": [
"RPC"
],
"start": 35117,
"text": "Mr. S.S. Kushwaha, Dean of the R.K.D.F. Medical College Hospital and Research Centre i.e. Petitioner No.2- herein is liable for prosecution under Section 193 IPC."
}
},
{
"from_name": "label",
"id": "a6d1119b41104445a4943a66aa66274b",
"to_name": "text",
"type": "labels",
"value": {
"end": 35444,
"labels": [
"RPC"
],
"start": 35297,
"text": "The Secretary General of this Court is directed to depute an Officer to initiate the prosecution in a competent Court having jurisdiction at Delhi."
}
},
{
"from_name": "label",
"id": "0d27ac42f8f241a38b024de6c9a9a58c",
"to_name": "text",
"type": "labels",
"value": {
"end": 35581,
"labels": [
"RPC"
],
"start": 35444,
"text": "\n (ii) The College is barred from making admissions for the 1st Year MBBS course for the next two years i.e. 2018-19 and 2019- 2020."
}
},
{
"from_name": "label",
"id": "13f4c8d389424780a2632efdcceed20d",
"to_name": "text",
"type": "labels",
"value": {
"end": 35640,
"labels": [
"NONE"
],
"start": 35583,
"text": "7 T N Godavarman Thirumalpad (102) v. Ashok Khot and Anr."
}
},
{
"from_name": "label",
"id": "2e675adf06e542b4a954f3d831b4e0fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 35672,
"labels": [
"NONE"
],
"start": 35641,
"text": "(2006) 5 SCC 1 at Para 31 (iii)"
}
},
{
"from_name": "label",
"id": "935ff494853e43d28b087504bc73511d",
"to_name": "text",
"type": "labels",
"value": {
"end": 35760,
"labels": [
"RPC"
],
"start": 35673,
"text": "A penalty of Rs. Five Crores is imposed on the College for playing fraud on this Court."
}
},
{
"from_name": "label",
"id": "5467872403e74ce48326dedc8fe6f5ec",
"to_name": "text",
"type": "labels",
"value": {
"end": 35845,
"labels": [
"RPC"
],
"start": 35761,
"text": "The amount may be paid to the account of the Supreme Court Legal Services Committee."
}
},
{
"from_name": "label",
"id": "81752999e9ed4c7e9aec7e57d3876c53",
"to_name": "text",
"type": "labels",
"value": {
"end": 35982,
"labels": [
"RPC"
],
"start": 35845,
"text": "\n (iv) The students are entitled to receive the refund of fee paid by them for admission to the College for the academic year 2017- 19."
}
},
{
"from_name": "label",
"id": "732c995a2de4455799015bd32afb5082",
"to_name": "text",
"type": "labels",
"value": {
"end": 36079,
"labels": [
"RPC"
],
"start": 35983,
"text": "In addition, the College is directed to pay a compensation of Rs. One Lakh to the said students."
}
},
{
"from_name": "label",
"id": "5df0cb30a3a04198b552b014b25a087c",
"to_name": "text",
"type": "labels",
"value": {
"end": 36128,
"labels": [
"RPC"
],
"start": 36079,
"text": "\n 19. The Writ Petition is dismissed accordingly."
}
},
{
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"id": "b0d246490905463c88a0c446f72dce91",
"to_name": "text",
"type": "labels",
"value": {
"end": 36168,
"labels": [
"RPC"
],
"start": 36128,
"text": "\n WRIT PETITION (CIVIL) NO. 731 OF 2018:"
}
},
{
"from_name": "label",
"id": "a1824c5b121d4f8a9c0cc24634d45724",
"to_name": "text",
"type": "labels",
"value": {
"end": 36238,
"labels": [
"RPC"
],
"start": 36169,
"text": "The Writ Petition is hereby dismissed in terms of the above judgment."
}
},
{
"from_name": "label",
"id": "4832d3f541e6421194dfa2fa8fb8fc1e",
"to_name": "text",
"type": "labels",
"value": {
"end": 36370,
"labels": [
"NONE"
],
"start": 36240,
"text": "...................................J.\n "
}
},
{
"from_name": "label",
"id": "bd49bfa336ff4e8d86af6e2214fbb540",
"to_name": "text",
"type": "labels",
"value": {
"end": 36382,
"labels": [
"NONE"
],
"start": 36370,
"text": "[ S.A. BOBDE"
}
},
{
"from_name": "label",
"id": "5fa98698548c448a9bcd94132eaf48fa",
"to_name": "text",
"type": "labels",
"value": {
"end": 36419,
"labels": [
"NONE"
],
"start": 36382,
"text": "] ..................................."
}
},
{
"from_name": "label",
"id": "1b7730019ece481580e9b47e505ff043",
"to_name": "text",
"type": "labels",
"value": {
"end": 36495,
"labels": [
"NONE"
],
"start": 36419,
"text": "J.\n "
}
},
{
"from_name": "label",
"id": "48825869877f40f2ae5ff648511239f6",
"to_name": "text",
"type": "labels",
"value": {
"end": 36515,
"labels": [
"NONE"
],
"start": 36495,
"text": "[ L. NAGESWARA RAO ]"
}
},
{
"from_name": "label",
"id": "8bfb81b11cff42309fd6ac3a632c00ce",
"to_name": "text",
"type": "labels",
"value": {
"end": 36526,
"labels": [
"NONE"
],
"start": 36516,
"text": "New Delhi,"
}
},
{
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"id": "f20ddc6d42864a359db693b36d4c448a",
"to_name": "text",
"type": "labels",
"value": {
"end": 36590,
"labels": [
"NONE"
],
"start": 36527,
"text": " ..................................J.\n"
}
},
{
"from_name": "label",
"id": "1715ec5215b2438daf4a9e7694f135db",
"to_name": "text",
"type": "labels",
"value": {
"end": 36607,
"labels": [
"NONE"
],
"start": 36590,
"text": "January 17, 2019."
}
},
{
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"id": "de5500e7e0ab4aeb9bcb9054c539e481",
"to_name": "text",
"type": "labels",
"value": {
"end": 36649,
"labels": [
"NONE"
],
"start": 36629,
"text": "[ R. SUBHASH REDDY ]"
}
}
]
}
] | 1,751 | {
"text": " REPORTABLE\n IN THE SUPREME COURT OF INDIA\n\n CIVIL ORIGINAL JURISDICTION\n\nWRIT PETITION (CIVIL) NO. 1001 of 2017\n\nSarvepalli Radhakrishnan University\n\n& Another .... Petitioners\n\n Versus\n\nUnion of India & Others .... Respondents\n\n WITH\n\n WRIT PETITION (CIVIL) NO. 731 of 2018\n\n J U D G M E N T\n L. NAGESWARA RAO, J.\n 1. Permission was granted for the establishment of Petitioner No.2- R.K.D.F. Medical College Hospital and Research Centre (hereinafter referred to as \"the College) by Respondent No.1 on the recommendation of Respondent No.2-herein- Medical Council of India, with an intake capacity of 150 MBBS seats annually for the academic year 2014-15. An inspection was conducted on 23rd and 24th of February, 2015 for grant of renewal for admitting the 2nd Batch of 150 MBBS students for the academic year 2015-16. The Medical Council of India (MCI) recommended to the Central Government to reject the permission for admission of the 2nd Batch of 150 MBBS students for the academic year 2015-16 in view of the deficiencies found in the Assessment Report. A review/ reassessment was done by the Executive Committee of Respondent No.2 at the request of the Central Government. The Executive Committee of Respondent No.2 reconsidered the matter and recommended to the Central Government not to renew the permission for the 2nd Batch of MBBS students for the academic session 2015-16. There was a further recommendation that the College should be debarred from making admissions for the next two academic sessions. The Central Government accepted the recommendation made by Respondent No.2 and rejected the request for renewal. Yet another review/ reassessment was done by the Central Government pursuant to the directions issued by this Court in SLP (C) No.19543 of 2015 vide order dated 8th September, 2015. A Committee was constituted to afford an opportunity of hearing to the College. The College was denied permission to admit the 2nd Batch of the MBBS students for the year 2015-16 by an order of Respondent No.1 dated 28th September, 2015. The High Court of Delhi quashed the said order dated 28th September, 2015 and directed the Central Government to examine the matter afresh vide its order dated 29th December, 2015 in Writ Petition (C) No. 9663 of 2015. The Central Government reiterated its decision by an order dated 1st January, 2016 to not grant permission to the College to admit the 2nd Batch of MBBS students. One more inspection was ordered by the High Court of Madhya Pradesh on 11th May, 2016 in Writ Petition (C) No.21223 of 2015. Respondent No.2 filed SLP (C) No.14729 of 2016 challenging the order dated 11th May, 2016 passed by the High Court of Madhya Pradesh. On 15th July, 2016, this Court directed that a fresh inspection should be conducted. The order dated 15th July, 2016 was modified by this Court on 9th September, 2016 by which the Oversight Committee was requested to consider the matter pertaining to the admission of students in the College for the year 2016-17.\n 2. By an order dated 27th September, 2016, the Oversight Committee accorded approval to the College for admission of students for the year 2016-17. The Oversight Committee directed the College to rectify the deficiencies and submit a compliance report to the Ministry of Health & Family Welfare by 27th September, 2016. The College was informed that a bank guarantee of Rs. Two Crores in favour of Respondent No.2 has to be furnished by 27th September, 2016. It was stated that non-compliance of the conditions imposed by the Oversight Committee would result in the College getting debarred from fresh intake for two years commencing 2017-18.\n The 2nd Batch of 150 students for the academic year 2016-17 were admitted pursuant to the conditional permission for renewal granted by the Central Government.\n 3. A joint verification inspection was conducted on 5th and 6th January, 2017 for renewal of permission to the 3rd Batch of MBBS students for the academic year 2017-18. Finding gross deficiencies in the infrastructure, clinical material, teaching faculty and other physical facilities in the College, the Executive Committee of Respondent No.2 concluded that the undertaking given by the College on 28th September, 2016 was breached. The Committee decided to recommend to the Central Government to debar the College from admitting students for the academic years 2017-18 and 2018-19. The Central Government accepted the recommendations made by Respondent No.2 and by an order dated 31st May, 2017 debarred the College from making admissions for the years 2017-18 and 2018-19. The High Court of Madhya Pradesh allowed Writ Petition (C) No.8100 of 2017 filed by the College questioning the legality of order of the Central Government dated 31st May, 2017. The College was permitted to provisionally admit 150 students. Aggrieved by the judgment dated 21st July, 2017 of the High Court of Madhya Pradesh, Respondent No.2 filed SLP (C) No.20400 of 2017 before this Court. The re-inspection as directed by the High Court of Madhya Pradesh was confirmed by this Court by an order dated 14th August, 2017. It was made clear in the said order that the admission of students shall be completely provisional, being dependent on the result of the inspection. It was further mentioned that the admission of students shall be liable to be cancelled if the College fails in the inspection and the students will not be entitled to claim any equity. The students were directed to be informed by the Counselling committee about the said condition. An inspection was scheduled to be conducted on 14th & 15th September, 2017 for renewal of the 4th Batch of students in College for the MBBS course.\n According to Respondent No.2, the said inspection had to be aborted midway as the assessors were manhandled and physically forced to leave the College. At the request made by the College, another inspection was conducted on the 25th & 26th September, 2017. The Executive Committee of Respondent No.2 considered the Assessment Report at its meeting held on 26th September, 2017 and decided that admissions of the 4th Batch of 150 MBBS students for the year 2017-18 should be cancelled in view of the following deficiencies found in the inspection conducted on 25th & 26th September, 2017: \"I. Bed Occupancy at 10 a.m. on day of assessment was 01.07% (i.e. 7 out of 410).\nII. There were no Major Surgical operation on day of assessment.\nIII. There was NIL Normal Delivery or LSCS on day of assessment.\nIV. Data of Clinical material like Casualty attendance, Discharges, Major & Minor Operations, Radiological Investigations as provided by the Institute are inflated.\nV. ICUs: There was NIL patient in NICU/ PICU & only 1 patient each in ICCU, MICU, SICU on day of assessment.\nVI. Blood Bank: NIL Unit was dispensed on day of assessment.\nVII. Deficiency of faculty is 15.65% as detailed in the report.\nVIII. Shortage of residents is 40% as detailed in the report.\nIX. Diet order was not recorded in the register on day of assessment.\nX. MRD is partly manual.\nXI. Facilities in Central Research Laboratory are not adequate.\n There are NIL ongoing or completed research projects.\nXII. RHTC: Cold Chain equipment are not available. Survey / MCH / Immunization / Family Welfare registers are not available. No activities under National Health Programmes are carried out.\nXIII. UHCC: Cold Chain equipment are not available. Survey / MCH / Immunization / Family Welfare Registers are not available.\"\n 4. The Executive Committee of Respondent No.2 further decided that Regulation 8(3)(1)(b)1 of the Establishment of Medical College Regulations, 1999 (\"the MCI Regulations\") should be invoked in view of the deficiencies found in the bed occupancy and residents. The said decision of Respondent No.2 was approved by the Oversight Committee.\n 1 Regulation 8 (3)(1)- The permission to establish a medical college and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal [as per latest time schedule] prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies.\n (b)- Colleges in the stage of III & IV renewal (i.e. Admission of fourth & fifth batch): [If it is observed during any inspection of the Institute that the deficiency of teaching faculty and / or Residents is more than 20% and / or bed occupancy is < 65%, compliance of rectification of deficiencies from such an institute will not be considered for renewal of permission in that Academic Year.] 5. Respondent No.2 directed the College to discharge all the students admitted for the academic year 2017-18 by its letter dated 29th September, 2017. The Principal Secretary (Medical Division Department), Government of Madhya Pradesh- Respondent No.3- herein was requested to cancel the admission of students made in the College for the academic year 2017-18.\n 6. The communications dated 29th September, 2017 to the College and the Respondent No.3 are subject matter of challenge in this Writ Petition. The College sought a further direction that a fresh inspection should be conducted strictly in accordance with the Assessor's Guide. While issuing notice on 23rd October, 2017, this Court stayed the operation of the communication dated 29th September, 2017. On 24th October, 2017 it was clarified that the students admitted as per the order dated 14th August, 2017 in SLP (Civil) No. 20400 of 2017 shall be permitted to continue with their studies. Thereafter, on a consideration of the Assessment Report pursuant to the inspection dated 25th & 26th September, 2017 and the submissions made on behalf of both sides, this Court by an order dated 14th December, 2017 directed the admission of the students to be cancelled. This Court took note of the order dated 14th August, 2017 which made the admission of students subject to the result of the inspection. As the students were found not to be complicit and not having any role to play in non-compliance of the requisite standards by the College, this Court considered it expedient to direct the students to be accommodated in other colleges. By referring to the Assessment Report pursuant to the inspection done on 25th & 26th September, 2017, learned Senior Counsel for Respondent Nos. 1 and 2 submitted that the College was indulging in fraud by showing persons who were not sick as patients only for the purpose of showing compliance of the minimum requirements. The learned Senior Counsel appearing for the College refuted the said contention and argued that all the patients were genuine. As this Court was in no position to determine the truth or otherwise of the allegations, an enquiry was directed to be conducted into the correctness of the statistics, reports and material placed before this Court by the College along with the Writ Petition. For the said purpose, a committee was constituted by this Court. A senior officer deputed by the Director, Central Bureau of Investigation (CBI), was directed to head the Committee which would have two doctors of the All India Institute of Medical Sciences (AIIMS) as its members. It is relevant to note that in the said order dated 14th December, 2017 it was made clear that the College may have to face prosecution under Section 193 of the Indian Penal Code, 1860 (IPC) if the allegations made by Respondent No.2 were found to be correct. The decision to constitute a committee by this Court was arrived at after a thorough examination of the voluminous material placed on record by the College. The material was constituted of several photographs showing patients occupying the beds and their case sheets. A bare perusal of the photographs did not convince us that the patients were genuine. After a close scrutiny of the case sheets, we had serious doubts about the necessity for admission of persons suffering from minor ailments as in-patients.\n 7. The students who were admitted in the College for the year 2017-18 were directed to be adjusted in the other private medical colleges in the State of Madhya Pradesh for the academic year 2018- 19 by an order passed by this Court on 3rd July, 2018. The students were directed to pay the fees to the colleges to which they are admitted. It was mentioned in the said order dated 3rd July, 2018 that the entitlement of the students for refund of the fee paid for admission to the College shall be adjudicated at the final hearing of the Writ Petition.\n 8. The Committee appointed by this Court on 14 th December, 2017 submitted its Report on 12th July, 2018. It was mentioned in the Report inter alia, that the Committee visited the College on 29th January, 2018 around 11.30 a.m. and found that the patient waiting area for OPD Registration was totally empty. After visiting several wards in the hospital, the Committee found that the attendance of patients was abysmally low and the patients shown to be admitted in OPDs/ wards were not in conformity with the actual number of patients. It was further stated in the Report that a scrutiny of the medical case files of the in-patients showed that their admission was not necessary. The case duty rosters for duty doctors as well as nurses were not available in the wards and the junior doctors on duty were not able to identify and confirm who had written the case notes/ progress notes on the case files.\n 9. The Committee collected the medical sheets of 435 patients who were shown to have been admitted in the hospital on the date of the inspection conducted on 25th & 26th September, 2017. The hard disk that was obtained from the hospital for verification of the details of patients who were admitted prior to 7th January, 2018 was edamined by the CBI. It was found that the hard disk was empty and did not contain any data. The conclusion of the Committee after a detailed enquiry revealed the following: \"i. The petitioner college has claimed that 6 doctors namely, Dr. Ritesh Kumawat, Dr. MR Gaikwad, SB Petkar, Dr. Deepak Kaladagi, Dr. Jeetendra Gupta and Dr. Ram Ballabh Thakur couldn't attend the MCI inspection on 25.09.2017 as they were summoned by Court/Police in connection with a motor accident case.\n However, such claim was found to be incorrect.\n ii. All of the six doctors namely, Dr. Ritesh Kumawat, Dr.\n MR Gaikwad, SB Petkar, Dr. Deepak Kaladagi, Dr.\n Jeetendra Gupta, Dr. Ram Ballabh Thakur, when examined, denied having received any notice from police regarding the motor accident.\n iii. Out of the 10 doctors (Sr. Residents/ Jr.\n Residents) who were not counted by the assessors on the strength of the petitioner college as faculty on the ground that they were not residing in the college hostel, 9 doctors could be contacted, Examination of those 9 doctors revealed : 07 doctors confirmed during enquiry that they were not staying in the hostel in the college campus and they themselves had conveyed the MCI assessors in this regard. It is mandatory to stay in hostel as per Assessor's Guide issued by MCI for academic year 2018-19.\n The other two resident doctors, i.e. Dr.\n Meenal Parmar and Dr. Arpita Mishra, stated that they were staying in the hostel but were not considered on the strength of the college by the MCI assessors.\n iv. Out of the 8 resident doctors which petitioner college had claimed to be on night duty and so couldn't appear before MCI assessors by 11 AM, enquiry revealed that: Out of the above mentioned 8 resident doctors, 6 doctors stated that they were not on payroll of the petitioner college on the day of inspection i.e.\n 25.09.2017. Even 4 of those doctors had stated that they never joined the hospital.\n 1 doctor (Dr. Ritesh Kumawat) stated that he was not present on the day of the inspection, i.e. 25.09.2017.\n And another doctor Dr. Devyani Patel was present on 25.09.2017 but she was rightly excluded by the MCI assessors as she couldn't make her presence by 12 noon (which was mandated as per Assessor's Guide).\n v. The 3 doctors namely Dr. Priyank Jain, Dr. Manoj Sahu and Dr. Amit Jain, who were not treated as Sr.\n Resident doctors by the MCI assessors doesn't seem to be justifiable considering the fact that all three of them were treated as Sr. Resident Doctors on earlier inspection on 05.01.2017.\nvi. Two tutors who have been shown as present in the assessment by the college had not attended the assessment proceedings on 25.09.2017. addresses vii. Due to vague and incomplete type of the mentioned in the record of the petitioner college, most of the patients could not be located as merely the names of the colonies and sub areas have been found to be mentioned on the patient case sheets. In the identified 21 patients, 8 are the employees/ students of various RKDF institutions.\n xiv. On the basis of the medical analysis of the case sheets of the patients most doctors from AIIMS are of the similar view that it is doubtful that all these patients were actually admitted and that too for such a long duration.\nxv. Most of the doctors are also of the opinion that the range of cases shown to be admitted was grossly inadequate for training of students.\nxvi. The doctors were also of the opinion that in most of the case sheets prescriptions, operative notes, etc.\n appears to have been written by the same person in a very unprofessional manner. Also histopathological reports are very sketchy and incomplete.\nxvii. Dr. S.C. Sharma, Professor and HoD, ENT Department, AIIMS has examined 14 medical sheets of the patients shown on bed in ENT Department of petitioner's college on 25/25.09.2017. As per his opinion most of the patients appear to be fictitious.\n xviii. Dr. H.L. Nag, Professor, Orthopedics, AIIMS has examined 52 medical sheets of the patients shown on bed in Orthopedics Department of petitioner's college on 25/26.09.2017. He held that majority of those cases could have been managed without hospital admissions.\nxix. Dr. Naval Kishore Vikram, Professor General Medicine AIIMS has examined 97 medical patients of General Medicine and 12 patients of TB & & Chest Department who were shown to be on bed on 25/26.09.2017. He has concluded that it appears doubtful that those patients were actually admitted in the hospital. Most of the patients appear to be over treated by various medications, particularly antibiotics. He also held that most of the cases had limited number of diagnosis which is grossly inadequate for training of medical students.\n xx. Dr. Pankaj Hari, Professor Paediatrics Department, AIIMS has examined 62 medical sheets of the patients shown on bed in Paediatrics Department of petitioner's college on 25/26.09.2017. He concluded that the admitted cases have limited diagnosis which is quite inadequate for training of students in a medical college. He also raised doubt over the authenticity of those medical files.\nxxi. Dr. Vinod K. Khetan, Professor, Department of Dermatology and Venerelogy, AIIMS, examined 10 medical sheets of the patients shown on bed in Dermatology department of petitioner's college on 25/2609.2017. He raised serious doubts over the authenticity of patient being actually admitted. He also opined that the range of cases admitted and their work- up is grossly inadequate for the training of students. Opthalmic xxii. Dr. Namrata Sharma, Professor, Deptt. of Sciences, AIIMS has concluded that in out of total 17 cases, admission of the 02 patients was required whereas in all other cases patient could have been managed under day care OPD. Psychiatry, xxiii. Dr. Mamta Sood, Professor, Deptt. of AIIMS examined 08 medical sheets of the patients shown on bed in Psychiatry Department of petitioner's college on 25th / 26.09.2017. Though she mostly agreed that the treatment shown to be given to the patients was appropriate, but she opined that they didn't require to be admitted.\nxxiv. Dr. Ongikla Bhutia, Professor, Division of Oral Maxillofacil Surgery, AIIMS examined 11 medical sheets of the patients shown on bed in Oral Maxillofacial Surgery Department of petitioner's college on 25/26.09.2017. The doctor opined that the diagnosis appeared repetitive. Neither pre- operative radiography nor post operative radiography were found on record. Consent from for the surgery was also found to be absent in some cases.\nxxv. Dr. Deepika Deka, Professor, Deptt. of Obstetrics and Gynaecology, AIIMS had examined 56 medical sheets of the patients shown on bed in Obstetrics and Gynaecology Department of petitioner's college on 25/26.09.2017. She raised doubt whether actual surgery was performed or not. She also raised doubt over the genuineness of the admissions shown for those patients.\n viii. Dr. Subodh Kumar, Professor, Deptt. of Surgical Disciplines, AIIMS examined 96 medical sheets of the patients on bed on 25/26.09.2017. He raised serious doubt over the genuineness of patients actually admitted. He also held that spectrum of cases shown to be admitted was grossly inadequate for training of students.\"\n 10. When the matter was listed on 5th December, 2018, Shri Vivek Tankha, learned Senior Counsel appearing for the College, submitted that the College intends to submit an apology for the lapses on their part. He requested us to give a quietus to this matter. He submitted that there are students presently studying in the institution who would be affected by any adverse order passed against the College.\n 11. It has been brought to our notice by the Respondent No.2- MCI that during the inspection conducted on 23 rd & 24th February, 2015 for the purpose of granting admission for the academic year 2014-15, it was found that there were patients who were fake and others who had been admitted without any significant illness. The MCI was constrained to invoke Regulation 8(3)(1)(a)2 and 2 Regulation 8 (3)(1) The permission to establish a medical college and admit students may be granted initially for a period of one year and may be renewed on yearly basis Regulation 8(3)(1)(d)3 of the MCI Regulations in view of the College submitting forged/ fake documents for the purpose of showing compliance with the minimum requirements. A complaint was made by Dr. A.K. Banerjee, Ex-Associate Professor of Surgery of the College on 25th March, 2015 alleging that more than 50% of the doctors who were shown as full-time Faculty Members were full-time private practitioners. Dr. Paresh Ruparel who was shown as a Professor of subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal [as per latest time schedule] prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies.\n (a) Colleges in the stage of Letter of Permission upto II renewal (i.e.\nAdmission of third batch): [If it is observed during any inspection/assessment of the institute that the deficiency of teaching faculty and/or Residents is more than 30% and/or bed occupancy is < 50% (45% in North East, Hilly Terrain, etc.), compliance of rectification of deficiencies from such an institute will not be considered for issue of Letter of Permission (LOP)/renewal of permission in that Academic Year.] 3 Regulation 8(3)(1)(d) Colleges which are found to have employed teachers with faked / forged documents: If it is observed that any institute is found to have employed a teacher with faked / forged documents and have submitted the Declaration Form of such a teacher, such an institute will not be considered for renewal of permission / recognition for award of M.B.B.S. degree / processing the applications for postgraduate courses for two Academic Years i.e. that Academic Year and the next Academic Year also.\n [However, the office of the Council shall ensure that such inspections are not carried out at least 2 days before and 2 days after important religious and festival holidays declared by the Central/State Govt.] Bracketed portions substituted/ modified/ aletered in terms of Gazette Notification dated 18.03.2016.\n Surgery in the College was working as a surgeon at V.S. Hospital affiliated to MHL Medial College, Ahmedabad and was also running a private hospital. Dr Ruparel was referred to Ethics Committee and he was suitably dealt with for misdemeanor. Without delving deep into the details of the Report submitted by the Committee, it is clear that the College is guilty of practicing fraud on this Court. The conduct of the College administration in indulging in manipulations and hoodwinking the authorities to project compliance of the requisite minimum standards for admission of students does not deserve to be condoned. The impunity with which the College has manufactured records to convince us that they were being unnecessarily hounded by the MCI in spite of their compliance with the required standards is deprecated. The brazen attempt by the College in taking this Court for a ride by placing on record maneuvered documents to obtain a favourable order is a clear-cut act of deceit. The justification given by the College regarding the absence of certain residents has turned out to be a concocted story. Had we not initiated an enquiry by the Committee of Experts, the fraud played by the College on this Court would not have come to light. It is trite that every litigant has to approach the Court with clean hands. A litigant who indulges in suppression of facts and misrepresentation is not entitled for any relief. The conduct of the College in this case to mislead this Court for the purpose of getting a favourable order is reprehensible and the College deserves to be dealt with suitably.\n12. In Re. Suo Motu Proceedings against R. Karuppan, Advocate4, this Court observed as under: \"13. Courts are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining the criminal liability of the offenders for offences committed against the society. The courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon false evidence particularly in cases, the adjudication of which is dependent upon the statement of facts. If the result of the proceedings are to be respected, these issues before the courts must be resolved to the extent possible in accordance 4 (2001) 5 SCC 289 with the truth. The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy.\"\n In Mohan Singh v. Amar Singh5 case, it was observed by this Court : \"36. ...Tampering with the record of judicial proceedings and filing of false affidavit in a court of law has the tendency of causing obstruction in the due course of justice. It undermines and obstructs free flow of the unsoiled stream of justice and aims at striking a blow at the rule of law. The stream of justice has to be kept clear and pure and no one can be permitted to take liberties with it by soiling its purity.\" Mr. S.S.\n13. In the affidavit filed along with the Writ Petition, Kushwaha, Dean of the R.K.D.F. Medical College Hospital and Research Centre stated that the contents in the Writ Petition are true and correct to the best of his knowledge and belief. According to the 5 (1998) 6 SCC 686 College, the Assessment Report pursuant to the inspection conducted on 25th and 26th September, 2017 was unfair as the justification for the absence of six members of the faculty was not accepted. The averment in the Writ Petition is to the effect that the said six doctors who had received summons from the Sub-Inspector of Police, Bairagarh were at the police station at 11 a.m. on 25 th September, 2017 in connection with the complaint relating to a motor accident case. The Committee enquired into the correctness of the claim made by the College regarding the absence of the six faculty members. Mr. Mohan Sharma, Assistant Sub-Inspector of Police of Bairagarh Police Station stated that there was no such notice issued for summoning the six doctors to the police station. On further enquiry, the six doctors namely Dr. Ritesh Kumawat, Dr. MR Gaikwad, SB Petkar, Dr. Deepak Kaladagi, Dr. Jeetendra Gupta and Dr. Ram Ballabh Thakur denied having received any notice from the police station. Dr. Ritesh Kumawat further denied having filed any complaint regarding the motor accident. On the basis of the above findings of the Committee, it is clear that a false statement has been made by the College on the basis of a fabricated document. It was averred in the Writ Petition by the College that there were 365 patients in the hospital at the time of inspection on 25th September, 2017 but the inspection team recorded that there were only seven patients available. In support of the submission, reliance was placed on the computerized data of the Medical Records Department. The hard disk that was collected by the Committee to study the details of the patients who were admitted in the hospital prior to January, 2018 turned out to be empty and no data could be retrieved. The assertion made by the College regarding the genuineness of the patients in the hospital turned out to be false in the enquiry conducted by the Committee. The Committee had serious doubts whether the patients were actually admitted. Most of the case sheets, prescriptions, operative notes, etc. appeared to be written by the same person in a very unprofessional manner. The histopathological reports were found to be sketchy and incomplete. On a thorough examination of the case sheets, the experts from AIIMS opined that admission of the patients was unnecessary in a number of cases. In view of the fake and incomplete addresses mentioned in the records of the hospital, most of the patients could not be located. Only 21 patients were identified and 8 out of these turned out to be employees/ students of the College. All this goes to show that the College has indulged in large scale malpractices in showing compliance of the minimum required standards to obtain permission for admission of students. The College further tried to mislead this Court that it is compliant in all respects, to get permission for the admission of students.\n 14. The brazen manner in which the College has indulged in relying upon manipulated records to mislead this Court for the purpose of getting favourable order deserves to be dealt with in a serious manner. We find that this is a fit case where Mr. S.S. Kushwaha, Dean of the College must be held liable for prosecution under Section 193 IPC.\n 15. There have been instances of errant medical colleges making admissions to the medical courses without obtaining the requisite permission. This Court came down heavily on such deviant colleges by imposing penalties for the illegalities committed by them in the matter of admission and for putting the students' future in jeopardy.6 We have noticed a disturbing trend of some medical colleges in projecting fake faculty and patients for obtaining 6 (2015) 4 SCC 580 45.6 -Medical Council of India v. M.G.R. Educational & Research Institute University and (2016) 11 SCC 530 31, 31.2 & 31.4 Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) permission for admission of students. The Committee exposes the evil design of the College in resorting to deceitful methods to cheat the authorities concerned and this Court to secure permission for admission of students. Apart from the prosecution of the Dean, the College is liable to be suitably punished for committing perjury.\n 16. We are unable to persuade ourselves to accept the apology offered on behalf of the College. The College has been habitually indulging in foul play which is clear from the course of events in 2015 when faculty members were found to have been working elsewhere and running hospitals. The bravado shown by the College in an attempt to cheat the MCI, the Government and this Court has to be condemned. The Committee constituted by this Court is due to the vehemence with which the Counsels appearing for the College were trying to convince us that they are fully compliant with all the requirements. \"Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is shorn of penitence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward.7\"\n 17. The students who were admitted in the 1st Year MBBS Course in the College for the academic year 2017-18 were duly cautioned and informed that their admission was purely provisional and they cannot claim any equity if the College was later on found to be deficient.\n They have been directed to be admitted in other colleges for the years 2018-19. In the process, students have lost a precious academic year. However, they are entitled for the refund of the fee collected from them for admission to the College.\n 18. For the aforementioned reasons, we pass the following order: (i) Mr. S.S. Kushwaha, Dean of the R.K.D.F. Medical College Hospital and Research Centre i.e. Petitioner No.2- herein is liable for prosecution under Section 193 IPC. The Secretary General of this Court is directed to depute an Officer to initiate the prosecution in a competent Court having jurisdiction at Delhi.\n (ii) The College is barred from making admissions for the 1st Year MBBS course for the next two years i.e. 2018-19 and 2019- 2020.\n 7 T N Godavarman Thirumalpad (102) v. Ashok Khot and Anr. (2006) 5 SCC 1 at Para 31 (iii) A penalty of Rs. Five Crores is imposed on the College for playing fraud on this Court. The amount may be paid to the account of the Supreme Court Legal Services Committee.\n (iv) The students are entitled to receive the refund of fee paid by them for admission to the College for the academic year 2017- 19. In addition, the College is directed to pay a compensation of Rs. One Lakh to the said students.\n 19. The Writ Petition is dismissed accordingly.\n WRIT PETITION (CIVIL) NO. 731 OF 2018: The Writ Petition is hereby dismissed in terms of the above judgment.\n ...................................J.\n [ S.A. BOBDE] ...................................J.\n [ L. NAGESWARA RAO ] New Delhi, ..................................J.\nJanuary 17, 2019. [ R. SUBHASH REDDY ] "
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"id": "6fc9e2f2e05746c9831e9657f5d73495",
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"value": {
"end": 595,
"labels": [
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],
"start": 587,
"text": "W/o Anil"
}
},
{
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"value": {
"end": 644,
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],
"start": 605,
"text": "Age: Major, Occ: Not Known\n R/o"
}
},
{
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"id": "0e4904ed34044be799c50e7e30b96263",
"to_name": null,
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"end": 657,
"labels": [
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],
"start": 645,
"text": "Nawad Devadi"
}
},
{
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"to_name": null,
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"value": {
"end": 681,
"labels": [
"PREAMBLE"
],
"start": 667,
"text": "Chowbara Bidar"
}
},
{
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"id": "95f4aedec12648428b4decd04c398891",
"to_name": null,
"type": null,
"value": {
"end": 693,
"labels": [
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],
"start": 682,
"text": " 585401\n\n5."
}
},
{
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"id": "b71e9711ee8e467ba3e2f43989405d3b",
"to_name": null,
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"value": {
"end": 703,
"labels": [
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],
"start": 694,
"text": "Sulochana"
}
},
{
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"value": {
"end": 718,
"labels": [
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],
"start": 704,
"text": "W/o Bhagwanrao"
}
},
{
"from_name": null,
"id": "e6925bb53460483eb05fed43689cbf25",
"to_name": null,
"type": null,
"value": {
"end": 789,
"labels": [
"PREAMBLE"
],
"start": 728,
"text": "... Petitioners\n Age: Major, Occ: Not Known\n "
}
},
{
"from_name": null,
"id": "36a0e6fcb83143f3a82de78f62682bdf",
"to_name": null,
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"end": 805,
"labels": [
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],
"start": 789,
"text": "R/o Nawad Devadi"
}
},
{
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"id": "55b15aa8a90d46369b3d174a9b409feb",
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"value": {
"end": 839,
"labels": [
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],
"start": 805,
"text": "\n Chowbara Bidar 585401\n\n"
}
},
{
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"id": "80df63f57a3249fca1306c4d5e4eb7c7",
"to_name": null,
"type": null,
"value": {
"end": 894,
"labels": [
"PREAMBLE"
],
"start": 839,
"text": "(By Sri Jairaj K. Bukka, Advocate)\n\n\nAND:\n\n1. The State"
}
},
{
"from_name": null,
"id": "0a222351d72a42a6802bd037db110a9c",
"to_name": null,
"type": null,
"value": {
"end": 907,
"labels": [
"PREAMBLE"
],
"start": 895,
"text": "of Karnataka"
}
},
{
"from_name": null,
"id": "485c7cd82be04694aba53f85f9a9284c",
"to_name": null,
"type": null,
"value": {
"end": 1055,
"labels": [
"PREAMBLE"
],
"start": 907,
"text": "\n By its Bidar Town PS\n Rep by Addl Public Prosecutor\n High Court of Karnataka\n Bench Kalaburagi\n Kalaburagi"
}
},
{
"from_name": null,
"id": "0733dc821d0d4ac8a0aadd465cfe3462",
"to_name": null,
"type": null,
"value": {
"end": 1065,
"labels": [
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],
"start": 1057,
"text": "585104\n\n"
}
},
{
"from_name": null,
"id": "a6aa76a90aa048f1930b4378a93e4713",
"to_name": null,
"type": null,
"value": {
"end": 1097,
"labels": [
"PREAMBLE"
],
"start": 1065,
"text": "2. Smt. Manisha W/o Umesh Pandre"
}
},
{
"from_name": null,
"id": "a20fe8c6ab8c49ea8eb1dacb7dfb59c1",
"to_name": null,
"type": null,
"value": {
"end": 1135,
"labels": [
"PREAMBLE"
],
"start": 1106,
"text": "... Respondents\n Age:"
}
},
{
"from_name": null,
"id": "66af6dfdc25a4bca84f7cee620e4fcd5",
"to_name": null,
"type": null,
"value": {
"end": 1170,
"labels": [
"PREAMBLE"
],
"start": 1136,
"text": "39 Years, Occ: Housewife\n "
}
},
{
"from_name": null,
"id": "c0790aa045c64d79b185d0b0e504a73f",
"to_name": null,
"type": null,
"value": {
"end": 1181,
"labels": [
"PREAMBLE"
],
"start": 1170,
"text": "R/o 2-3-111"
}
},
{
"from_name": null,
"id": "ca4a614102c244e8b69638d71ee7fac2",
"to_name": null,
"type": null,
"value": {
"end": 1218,
"labels": [
"PREAMBLE"
],
"start": 1182,
"text": "Nawab Devadi\n Chowbara Bidar"
}
},
{
"from_name": null,
"id": "5b241a11288f42038abbf0559442b4da",
"to_name": null,
"type": null,
"value": {
"end": 1297,
"labels": [
"PREAMBLE"
],
"start": 1219,
"text": " 585401\n\n(Sri P.S. Patil, HCGP for R1;\nSri Mohd. Vikharuddin, Advocate for R2)"
}
},
{
"from_name": null,
"id": "7f0c4890102e42349e163085a237b328",
"to_name": null,
"type": null,
"value": {
"end": 1634,
"labels": [
"PREAMBLE"
],
"start": 1308,
"text": "This Criminal Petition is filed under Section 482 of\nCr.P.C., praying to quash the FIR against the petitioners in\nCrime No.28/2019, registered by Bidar Town PS for the\noffences punishable under Sections 143, 147, 148, 307,\n323, 324, 354, 504, 506 R/w 149 IPC pending on the file\nof Addl. Civil Judge (Sr.Dn) & CJM Court Bidar."
}
},
{
"from_name": null,
"id": "afbb267d89ae4cf4821433581fad2731",
"to_name": null,
"type": null,
"value": {
"end": 1735,
"labels": [
"PREAMBLE"
],
"start": 1634,
"text": "\n\n This petition coming on for Admission this day, the\nCourt made the following:\n\n ORDER"
}
},
{
"from_name": null,
"id": "228398c1ed384739a599acf9d4b21903",
"to_name": null,
"type": null,
"value": {
"end": 1799,
"labels": [
"NONE"
],
"start": 1735,
"text": "\n Petitioners and their counsel Sri Jairaj K. Bukka are present."
}
},
{
"from_name": null,
"id": "400f94cbb1c14072ac446add0490a2bb",
"to_name": null,
"type": null,
"value": {
"end": 1901,
"labels": [
"NONE"
],
"start": 1800,
"text": "On behalf of respondent No.1 State, learned High Court Government Pleader Sri P.S. Patil is present."
}
},
{
"from_name": null,
"id": "89c911ab9e1d478faf03b18f173d6e27",
"to_name": null,
"type": null,
"value": {
"end": 1965,
"labels": [
"NONE"
],
"start": 1901,
"text": "\n Respondent No.2 and her counsel Mohd. Vikharuddin are present."
}
},
{
"from_name": null,
"id": "3030a52c463144368c881b402ae0b2f0",
"to_name": null,
"type": null,
"value": {
"end": 2100,
"labels": [
"FAC"
],
"start": 1965,
"text": "\n 2. Petitioners as well as respondent No.2 have filed a joint compromise petition under Section 320 (2) of Code of Criminal Procedure."
}
},
{
"from_name": null,
"id": "63fafca00fa64368a9f768b3578ecceb",
"to_name": null,
"type": null,
"value": {
"end": 2262,
"labels": [
"FAC"
],
"start": 2101,
"text": "The compromise petition including the prayer sought for therein read as under:- \"MEMORANDUM OF CRIMINAL PETITION UNDER SECTION 320 (2) OF CRIMINAL PROCEDURE CODE"
}
},
{
"from_name": null,
"id": "eb0fc495dea147cda369c6f9ade7eb69",
"to_name": null,
"type": null,
"value": {
"end": 2447,
"labels": [
"FAC"
],
"start": 2263,
"text": "The petitioner most humbly & respectfully submits as under, 1. That the petitioner and respondent are settled the present case and filed the present petition before this Hon'ble Court."
}
},
{
"from_name": null,
"id": "848e3032adc24c3aa8e0b86d3da0d7b0",
"to_name": null,
"type": null,
"value": {
"end": 2679,
"labels": [
"FAC"
],
"start": 2447,
"text": "\n 2. That, the elders of both the petitioners and the complainants' friends, well- wishers and friends and their respective counsels together advised both the parties to arrive at compromise and both the parties agreed for the same."
}
},
{
"from_name": null,
"id": "c9bf26da3d474d1fb5085563ef88868b",
"to_name": null,
"type": null,
"value": {
"end": 2725,
"labels": [
"FAC"
],
"start": 2680,
"text": "Hence, this compromise petition is preferred."
}
},
{
"from_name": null,
"id": "de06f8312aca4dabbcf5248837e0e958",
"to_name": null,
"type": null,
"value": {
"end": 2980,
"labels": [
"FAC"
],
"start": 2727,
"text": "3. It is submitted that the petitioner no 1 and the complainant husband are real brothers and Mahesh is the son in law of the petitioner no 1 and Sushma is daughter of the petitioner no.1 and all are the same family members and living in the same house."
}
},
{
"from_name": null,
"id": "8f3d5caa0cd54f248d8d93a58e637ec5",
"to_name": null,
"type": null,
"value": {
"end": 3149,
"labels": [
"FAC"
],
"start": 2980,
"text": "\n 4. It is submitted that the complaint was filed on 30.03.2019 and the respondent police not filed the charge sheet and on the basis of complaint the FIR is registered."
}
},
{
"from_name": null,
"id": "69eba8a1744a416bb551dcdb07b1a627",
"to_name": null,
"type": null,
"value": {
"end": 3224,
"labels": [
"FAC"
],
"start": 3150,
"text": "Further the said offence are neither life imprisonment nor death sentence."
}
},
{
"from_name": null,
"id": "0796b26fd5bf4dc09829fa23b0b5e985",
"to_name": null,
"type": null,
"value": {
"end": 3576,
"labels": [
"FAC"
],
"start": 3226,
"text": "5. That, it is submitted that the Hon'ble Supreme Court in the case of Gian Singh and State of Panjab and others under Section 482, 320 Cr.P.C. relative scope inherent power of High court under Section 482 to quash criminal proceedings involving in non- compoundable offences in view of compromise arrived between the parties in matrimonial disputes."
}
},
{
"from_name": null,
"id": "ba87f91c76da42488670a864b14dd989",
"to_name": null,
"type": null,
"value": {
"end": 3804,
"labels": [
"FAC"
],
"start": 3576,
"text": "\n 6. It is submitted that this Hon'ble Court also quashed the proceedings in Criminal Petition No.200579/2018 on dated 10-10-2018 under section 498(A), 323, 504, 506, 307 R/w 34 IPC when parties arrived to compromise the matter."
}
},
{
"from_name": null,
"id": "260a68bafbdf42a69e75cd222222d976",
"to_name": null,
"type": null,
"value": {
"end": 3949,
"labels": [
"FAC"
],
"start": 3804,
"text": "\n 7. That, this Hon'ble Court has got vide and ample power to exercise to allow the compromise petition and to quash the Trial court proceedings."
}
},
{
"from_name": null,
"id": "6381419e6984448fbea8602a3c5257fc",
"to_name": null,
"type": null,
"value": {
"end": 4333,
"labels": [
"FAC"
],
"start": 3949,
"text": "\n PRAYER Wherefore, It is humbly prayed that this Hon'ble Court be pleased allow this compromise petition and thereby quash the FIR in Crime No 28/2019 registered by the Bidar Town PS for the offence punishable under section 143, 147, 148, 307, 323, 324, 354, 504, 506 R/w 149 IPC pending on the file of Addl. Senior Civil Judge & CJM Court Bidar, in the interest of law and justice.\""
}
},
{
"from_name": null,
"id": "eadac2d507e74fdf8f4fa9afa94ab2f8",
"to_name": null,
"type": null,
"value": {
"end": 4542,
"labels": [
"FAC"
],
"start": 4333,
"text": "\n 3. A perusal of the criminal petition will show that the petitioners have sought for quashing of the proceedings in Crime No.28/2019 pending on the file of Additional Senior Civil Judge and CJM Court, Bidar."
}
},
{
"from_name": null,
"id": "62d67d155ce6470c961402d785880b0a",
"to_name": null,
"type": null,
"value": {
"end": 4661,
"labels": [
"NONE"
],
"start": 4542,
"text": "\n 4. As stated above, all the parties are present before the Court and they are identified by their respective counsel."
}
},
{
"from_name": null,
"id": "17a2d71118e74c50b6fd035f27c028df",
"to_name": null,
"type": null,
"value": {
"end": 4860,
"labels": [
"FAC"
],
"start": 4662,
"text": "Complainant/respondent No.2 submits that she has settled dispute of her own wish and volition and without any pressure from any one and that she is willing to withdraw the present case filed by her."
}
},
{
"from_name": null,
"id": "5287c2349df04a2b8c49a9c1d6d07169",
"to_name": null,
"type": null,
"value": {
"end": 5149,
"labels": [
"PRE_RELIED"
],
"start": 4860,
"text": "\n 5. The Hon'ble Apex Court in the case of Gian Singh V/s State of Punjab and another, reported in (2012) 10 SCC Page No.303 has laid down the certain principles as to in what circumstance, the proceedings can be quashed particularly, when the dispute is matrimonial and private in nature."
}
},
{
"from_name": null,
"id": "4dd03b82aa81414e8ec04598182da5c0",
"to_name": null,
"type": null,
"value": {
"end": 5620,
"labels": [
"PRE_RELIED"
],
"start": 5150,
"text": "The said guidelines reads thus: \"Held, power of High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from power of a criminal Court of compounding offences under Section 320 Cases where power to quash criminal proceedings may be exercised where the parties have settled their dispute, held, depends on facts and circumstances of each case-before exercise of inherent power under Section 482."
}
},
{
"from_name": null,
"id": "7cf85ed390ae4741ac77497cda96f452",
"to_name": null,
"type": null,
"value": {
"end": 5712,
"labels": [
"PRE_RELIED"
],
"start": 5621,
"text": "High Court must have due regard to nature and gravity of the crime and its societal impact."
}
},
{
"from_name": null,
"id": "c959c45e9c0b4ba1a3cdd03f370ffdac",
"to_name": null,
"type": null,
"value": {
"end": 6133,
"labels": [
"ANALYSIS"
],
"start": 5714,
"text": "Thus, held heinous and serious offences of mental depravity, murder, rape, dacoity, etc., or under special statutes like Prevention of Corruption Act or offences committed by public servants while working in their capacity as public servants, cannot be quashed even though victim or victim's family and offender have settled the dispute-such offences are not private in nature and have a serious impact on society.\"\n 6."
}
},
{
"from_name": null,
"id": "1a3de7fa1da54f09af2b802f96c754c6",
"to_name": null,
"type": null,
"value": {
"end": 6513,
"labels": [
"PRE_RELIED"
],
"start": 6134,
"text": "The Hon'ble Apex Court in the case of Narinder Singh and others V/s State of Punjab and Another, reported in (2014) 6 SCC 466 has held as under: \"Cr.P.C. Section 482- Quashment of proceedings on basis of settlement between parties offence alleged under Section 307 IPC- Falls in the category of heinous and serious offences and generally to be treated as crime against society "
}
},
{
"from_name": null,
"id": "7dc67d2737c14d5f9b3746ecdea3109d",
"to_name": null,
"type": null,
"value": {
"end": 6569,
"labels": [
"PRE_RELIED"
],
"start": 6513,
"text": "Power of quashment in such cases guidelines laid down "
}
},
{
"from_name": null,
"id": "40cb5940da0f4a1fa09a57fa28c3643e",
"to_name": null,
"type": null,
"value": {
"end": 6790,
"labels": [
"PRE_RELIED"
],
"start": 6569,
"text": "Held, only because FIR / charge sheet incorporates provisions of Section 307 IPC would not, by itself, be a ground to reject the petition under Section 482 Cr.P.C. and refuse to accept the settlement between the parties "
}
},
{
"from_name": null,
"id": "657c097dde9d45cba93fe17894a4b60c",
"to_name": null,
"type": null,
"value": {
"end": 6864,
"labels": [
"PRE_RELIED"
],
"start": 6790,
"text": "Quashment of proceedings depends on facts and circumstances of each case "
}
},
{
"from_name": null,
"id": "4f542685ce5e4ccfa698fe47cb8441b1",
"to_name": null,
"type": null,
"value": {
"end": 7678,
"labels": [
"ANALYSIS"
],
"start": 6864,
"text": "Detailed guidelines laid down (in para 29) for High Courts to form a view under what circumstances it should accept the settlement between the parties and quash the proceedings and when it should refrain from doing so- Cases where Court had approved quashing of proceedings under Section 307 of IPC and where it was rejected, considered Penal Code, 1860, Section 307.\"\n 7. Keeping in view the guidelines issued by the Hon'ble Apex Court in the aforesaid decisions and considering the entire facts of the present case and the compromise / settlement entered between the parties, I am of the view that this is a fit case where the inherent power under Section 482 of Cr.P.C. is required to be exercised by this Court as no useful purpose will be served in continuing the criminal proceedings before the trial Court."
}
},
{
"from_name": null,
"id": "07314d98953b45f5a5260e194c616b25",
"to_name": null,
"type": null,
"value": {
"end": 7855,
"labels": [
"RATIO"
],
"start": 7679,
"text": "Under these circumstances, I deem it fit to exercise inherent power under Section 428 of Cr.P.C. and quash the proceedings before the trial Court to secure the ends of justice."
}
},
{
"from_name": null,
"id": "6c8be2c3003f49e29b2fbd32887ca0b0",
"to_name": null,
"type": null,
"value": {
"end": 7997,
"labels": [
"RPC"
],
"start": 7855,
"text": "\n 8. In view of the aforesaid discussion, I pass the following order: ORDER 1) The petition filed under Section 320 (2) of Cr.P.C. is allowed."
}
},
{
"from_name": null,
"id": "4a9e600da78745bcab9644f0845c5931",
"to_name": null,
"type": null,
"value": {
"end": 8053,
"labels": [
"RPC"
],
"start": 7997,
"text": "\n 2) The parties are permitted to compound the offences."
}
},
{
"from_name": null,
"id": "0e49f0a353ff42cca1d1aa1fcd83df36",
"to_name": null,
"type": null,
"value": {
"end": 8111,
"labels": [
"RPC"
],
"start": 8054,
"text": "The compromise petition filed by the parties is accepted."
}
},
{
"from_name": null,
"id": "059edfaff6064a04a25190a08ccbda07",
"to_name": null,
"type": null,
"value": {
"end": 8304,
"labels": [
"RPC"
],
"start": 8112,
"text": "In terms of the above said compromise, the proceedings pending against the petitioners in Crime No.28/2019 on the file of Additional Senior Civil Judge and CJM Court, Bidar are hereby quashed."
}
},
{
"from_name": null,
"id": "8512d28f54364d9fbc4effeb88bb00c7",
"to_name": null,
"type": null,
"value": {
"end": 8367,
"labels": [
"RPC"
],
"start": 8304,
"text": "\n The Criminal Petition is allowed in terms of the above order."
}
},
{
"from_name": null,
"id": "22e0d2a334f640b1abe916025b5c1fff",
"to_name": null,
"type": null,
"value": {
"end": 8383,
"labels": [
"NONE"
],
"start": 8367,
"text": "\n Sd/- JUDGE RSP"
}
}
]
}
] | 4,212 | {
"text": " IN THE HIGH COURT OF KARNATAKA\n KALABURAGI BENCH\n\nDATED THIS THE 16TH DAY OF JANUARY 2020\n\n BEFORE\n\nTHE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR\n\nCRIMINAL PETITION NO.200039/2020\n\nBETWEEN:\n\n1. Bhagwanrao S/o Gunderao\n Age: Major, Occ: Not Known\n R/o Nawad Devadi\n Chowbara Bidar 585401\n\n2. Ajay S/o Bhagwanrao\n Age: Major, Occ: Not Known\n R/o Nawad Devadi\n Chowbara Bidar 585401\n\n3. Anil S/o Bhagwanrao\n Age: Major, Occ: Not Known\n R/o Nawad Devadi\n Chowbara Bidar 585401\n\n4. Sweta W/o Anil\n Age: Major, Occ: Not Known\n R/o Nawad Devadi\n Chowbara Bidar 585401\n\n5. Sulochana W/o Bhagwanrao ... Petitioners\n Age: Major, Occ: Not Known\n R/o Nawad Devadi\n Chowbara Bidar 585401\n\n(By Sri Jairaj K. Bukka, Advocate)\n\n\nAND:\n\n1. The State of Karnataka\n By its Bidar Town PS\n Rep by Addl Public Prosecutor\n High Court of Karnataka\n Bench Kalaburagi\n Kalaburagi 585104\n\n2. Smt. Manisha W/o Umesh Pandre ... Respondents\n Age: 39 Years, Occ: Housewife\n R/o 2-3-111 Nawab Devadi\n Chowbara Bidar 585401\n\n(Sri P.S. Patil, HCGP for R1;\nSri Mohd. Vikharuddin, Advocate for R2)\n\n This Criminal Petition is filed under Section 482 of\nCr.P.C., praying to quash the FIR against the petitioners in\nCrime No.28/2019, registered by Bidar Town PS for the\noffences punishable under Sections 143, 147, 148, 307,\n323, 324, 354, 504, 506 R/w 149 IPC pending on the file\nof Addl. Civil Judge (Sr.Dn) & CJM Court Bidar.\n\n This petition coming on for Admission this day, the\nCourt made the following:\n\n ORDER\n Petitioners and their counsel Sri Jairaj K. Bukka are present. On behalf of respondent No.1 State, learned High Court Government Pleader Sri P.S. Patil is present.\n Respondent No.2 and her counsel Mohd. Vikharuddin are present.\n 2. Petitioners as well as respondent No.2 have filed a joint compromise petition under Section 320 (2) of Code of Criminal Procedure. The compromise petition including the prayer sought for therein read as under:- \"MEMORANDUM OF CRIMINAL PETITION UNDER SECTION 320 (2) OF CRIMINAL PROCEDURE CODE The petitioner most humbly & respectfully submits as under, 1. That the petitioner and respondent are settled the present case and filed the present petition before this Hon'ble Court.\n 2. That, the elders of both the petitioners and the complainants' friends, well- wishers and friends and their respective counsels together advised both the parties to arrive at compromise and both the parties agreed for the same. Hence, this compromise petition is preferred.\n 3. It is submitted that the petitioner no 1 and the complainant husband are real brothers and Mahesh is the son in law of the petitioner no 1 and Sushma is daughter of the petitioner no.1 and all are the same family members and living in the same house.\n 4. It is submitted that the complaint was filed on 30.03.2019 and the respondent police not filed the charge sheet and on the basis of complaint the FIR is registered. Further the said offence are neither life imprisonment nor death sentence.\n 5. That, it is submitted that the Hon'ble Supreme Court in the case of Gian Singh and State of Panjab and others under Section 482, 320 Cr.P.C. relative scope inherent power of High court under Section 482 to quash criminal proceedings involving in non- compoundable offences in view of compromise arrived between the parties in matrimonial disputes.\n 6. It is submitted that this Hon'ble Court also quashed the proceedings in Criminal Petition No.200579/2018 on dated 10-10-2018 under section 498(A), 323, 504, 506, 307 R/w 34 IPC when parties arrived to compromise the matter.\n 7. That, this Hon'ble Court has got vide and ample power to exercise to allow the compromise petition and to quash the Trial court proceedings.\n PRAYER Wherefore, It is humbly prayed that this Hon'ble Court be pleased allow this compromise petition and thereby quash the FIR in Crime No 28/2019 registered by the Bidar Town PS for the offence punishable under section 143, 147, 148, 307, 323, 324, 354, 504, 506 R/w 149 IPC pending on the file of Addl. Senior Civil Judge & CJM Court Bidar, in the interest of law and justice.\"\n 3. A perusal of the criminal petition will show that the petitioners have sought for quashing of the proceedings in Crime No.28/2019 pending on the file of Additional Senior Civil Judge and CJM Court, Bidar.\n 4. As stated above, all the parties are present before the Court and they are identified by their respective counsel. Complainant/respondent No.2 submits that she has settled dispute of her own wish and volition and without any pressure from any one and that she is willing to withdraw the present case filed by her.\n 5. The Hon'ble Apex Court in the case of Gian Singh V/s State of Punjab and another, reported in (2012) 10 SCC Page No.303 has laid down the certain principles as to in what circumstance, the proceedings can be quashed particularly, when the dispute is matrimonial and private in nature. The said guidelines reads thus: \"Held, power of High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from power of a criminal Court of compounding offences under Section 320 Cases where power to quash criminal proceedings may be exercised where the parties have settled their dispute, held, depends on facts and circumstances of each case-before exercise of inherent power under Section 482. High Court must have due regard to nature and gravity of the crime and its societal impact.\n Thus, held heinous and serious offences of mental depravity, murder, rape, dacoity, etc., or under special statutes like Prevention of Corruption Act or offences committed by public servants while working in their capacity as public servants, cannot be quashed even though victim or victim's family and offender have settled the dispute-such offences are not private in nature and have a serious impact on society.\"\n 6. The Hon'ble Apex Court in the case of Narinder Singh and others V/s State of Punjab and Another, reported in (2014) 6 SCC 466 has held as under: \"Cr.P.C. Section 482- Quashment of proceedings on basis of settlement between parties offence alleged under Section 307 IPC- Falls in the category of heinous and serious offences and generally to be treated as crime against society Power of quashment in such cases guidelines laid down Held, only because FIR / charge sheet incorporates provisions of Section 307 IPC would not, by itself, be a ground to reject the petition under Section 482 Cr.P.C. and refuse to accept the settlement between the parties Quashment of proceedings depends on facts and circumstances of each case Detailed guidelines laid down (in para 29) for High Courts to form a view under what circumstances it should accept the settlement between the parties and quash the proceedings and when it should refrain from doing so- Cases where Court had approved quashing of proceedings under Section 307 of IPC and where it was rejected, considered Penal Code, 1860, Section 307.\"\n 7. Keeping in view the guidelines issued by the Hon'ble Apex Court in the aforesaid decisions and considering the entire facts of the present case and the compromise / settlement entered between the parties, I am of the view that this is a fit case where the inherent power under Section 482 of Cr.P.C. is required to be exercised by this Court as no useful purpose will be served in continuing the criminal proceedings before the trial Court. Under these circumstances, I deem it fit to exercise inherent power under Section 428 of Cr.P.C. and quash the proceedings before the trial Court to secure the ends of justice.\n 8. In view of the aforesaid discussion, I pass the following order: ORDER 1) The petition filed under Section 320 (2) of Cr.P.C. is allowed.\n 2) The parties are permitted to compound the offences. The compromise petition filed by the parties is accepted. In terms of the above said compromise, the proceedings pending against the petitioners in Crime No.28/2019 on the file of Additional Senior Civil Judge and CJM Court, Bidar are hereby quashed.\n The Criminal Petition is allowed in terms of the above order.\n Sd/- JUDGE RSP "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "bc9e51f2d57841398a652dea43a03307",
"to_name": null,
"type": null,
"value": {
"end": 40,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nRATAN RAI\n\n Vs."
}
},
{
"from_name": null,
"id": "a57c063c028345a79fb69d05c61b01cf",
"to_name": null,
"type": null,
"value": {
"end": 68,
"labels": [
"PREAMBLE"
],
"start": 40,
"text": "\n\nRESPONDENT:\nSTATE OF BIHAR"
}
},
{
"from_name": null,
"id": "bdda6d3b91c8492a89cf74243a1a8ff9",
"to_name": null,
"type": null,
"value": {
"end": 106,
"labels": [
"PREAMBLE"
],
"start": 68,
"text": "\n\nDATE OF JUDGMENT:\n30/01/1956\n\nBENCH:"
}
},
{
"from_name": null,
"id": "8262b8e0b660469ba7c7882913d7eb98",
"to_name": null,
"type": null,
"value": {
"end": 405,
"labels": [
"PREAMBLE"
],
"start": 106,
"text": "\n\nACT:\nReference-jury trial-judge disagreeing with the verdict-\nProcedure-Duty of counsel-High Court-If can accept majority\nverdict without considering the entire evidence-Supreme\nCourt If should adopt the Procedure--Code of Criminal\nProcedure (Act V of 1898), as amended by Act XXVI of 1955 s.\n307."
}
},
{
"from_name": null,
"id": "6277e3f0146746e19e01597f75024abc",
"to_name": null,
"type": null,
"value": {
"end": 416,
"labels": [
"PREAMBLE"
],
"start": 405,
"text": "\n\nHEADNOTE:"
}
},
{
"from_name": null,
"id": "21b511396c354460b0486b2951e193f2",
"to_name": null,
"type": null,
"value": {
"end": 561,
"labels": [
"PREAMBLE"
],
"start": 417,
"text": "The appellants were charged under ss., 435 and 436 of the\nIndian Penal Code and were tried by a jury, who returned a\nmajority verdict of guilty."
}
},
{
"from_name": null,
"id": "d6dde92f2f444037b83116fd9877a98b",
"to_name": null,
"type": null,
"value": {
"end": 662,
"labels": [
"PREAMBLE"
],
"start": 562,
"text": "The Assistant Sessions judge\ndisagreed with the said verdict and made a reference to the\nHigh Court."
}
},
{
"from_name": null,
"id": "522dcaeea9234745a178e5277aced484",
"to_name": null,
"type": null,
"value": {
"end": 997,
"labels": [
"PREAMBLE"
],
"start": 662,
"text": "\nAt the hearing of the reference the counsel for the\nappellants only contended that the charge to the jury was\ndefective, and did not place the entire evidence before the\njudges, who only considered the objections' urged, and\nnothing more, and held the274\nreference to be incompetent and found the appellants guilty\nand convicted them."
}
},
{
"from_name": null,
"id": "1a520ad9f5e540b3b7a3b161e4c8d1fb",
"to_name": null,
"type": null,
"value": {
"end": 1464,
"labels": [
"PREAMBLE"
],
"start": 997,
"text": "\nHeld, that in a reference under s. 307 of the Code of\nCriminal Procedure it was the duty of counsel to place, and\n-it was incumbent on the High Court to consider, the entire\nevidence and the charge as framed and placed before the jury\nand to come to its own conclusion, after giving due weight\nto the opinion of the trial judge and the verdict of the\njury, and to acquit or convict the accused of the offences\nof which the jury could have convicted or acquitted him."
}
},
{
"from_name": null,
"id": "98a2439ce2074cd98abda910b938a59a",
"to_name": null,
"type": null,
"value": {
"end": 1554,
"labels": [
"PREAMBLE"
],
"start": 1465,
"text": "It\nwas wrong of the' High Court to pass judgment without\nconsidering the entire evidence."
}
},
{
"from_name": null,
"id": "94de45386c9e4b2a9229f15b91b2fa3a",
"to_name": null,
"type": null,
"value": {
"end": 1789,
"labels": [
"PREAMBLE"
],
"start": 1554,
"text": "\nIt is not proper for the Supreme Court to adopt the\nprocedure of considering the entire evidence and come to a\nconclusion which according to the provisions of s.307(3) of\nthe Code of Criminal Procedure the High Court should have\ndone."
}
},
{
"from_name": null,
"id": "f1dbde062ded49298764ce36d2687ee3",
"to_name": null,
"type": null,
"value": {
"end": 1923,
"labels": [
"PREAMBLE"
],
"start": 1789,
"text": "\nAkhlakali Hayatalli v. The State of Bombay, (1954) S.C.R.\n435 and Ramanugrah Singh v. The Emperor, A.I.R. T946 P.C.\n151, referred to."
}
},
{
"from_name": null,
"id": "68cdc15fe68a49d6b7eaa95634508c34",
"to_name": null,
"type": null,
"value": {
"end": 2000,
"labels": [
"PREAMBLE"
],
"start": 1923,
"text": "\n\nJUDGMENT:\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 104 of 1955."
}
},
{
"from_name": null,
"id": "da8f04be28e7486c8fc179755a260bd6",
"to_name": null,
"type": null,
"value": {
"end": 2292,
"labels": [
"NONE"
],
"start": 2000,
"text": "\nAppeal by special leave from the judgment and order' dated September 9, 1953, of the Patna High Court in Jury Reference No. I of 1952 arising out of the ReferencE made on February 16, 1952, by the Assistant Sessions Judge, 2nd Court, Chapra, in connection with Sessions Trial No. 81 of 1951."
}
},
{
"from_name": null,
"id": "be37524740284060a6223e3787f038b0",
"to_name": null,
"type": null,
"value": {
"end": 2388,
"labels": [
"NONE"
],
"start": 2292,
"text": "\nS. P. Verma, for the appellants Nos. 2 and 3.\nB. K. Saran and R. C. Prasad, for the respondent."
}
},
{
"from_name": null,
"id": "f45693b6be014fea96202c7efec0150b",
"to_name": null,
"type": null,
"value": {
"end": 2394,
"labels": [
"NONE"
],
"start": 2388,
"text": "\n1957."
}
},
{
"from_name": null,
"id": "493bf5e9b0cc4a85a4625d021316d9c4",
"to_name": null,
"type": null,
"value": {
"end": 2406,
"labels": [
"NONE"
],
"start": 2395,
"text": "January 30."
}
},
{
"from_name": null,
"id": "bdd164b7c84b41199a03786f45cd342a",
"to_name": null,
"type": null,
"value": {
"end": 2458,
"labels": [
"NONE"
],
"start": 2407,
"text": "The Judgment of the Court was delivered by BHAGWATI"
}
},
{
"from_name": null,
"id": "4f7225e8a1914d87a9eb3950998a2de7",
"to_name": null,
"type": null,
"value": {
"end": 2465,
"labels": [
"FAC"
],
"start": 2459,
"text": "J.-The"
}
},
{
"from_name": null,
"id": "2d43971cb58543e3a056baee09ecc958",
"to_name": null,
"type": null,
"value": {
"end": 2781,
"labels": [
"FAC"
],
"start": 2466,
"text": "appellants Nos. 2 and 3, who are the surviving appellants after the death of appellant No. 1 during the pendency of this appeal, were charged with having committed offences under ss. 435 and 436 of the Indian Penal Code and were tried by the Second Assistant Sessions Judge of Saran, Chapra, with the aid of a jury."
}
},
{
"from_name": null,
"id": "46bb454e01804e328fe9b15a5daa6f00",
"to_name": null,
"type": null,
"value": {
"end": 2886,
"labels": [
"FAC"
],
"start": 2782,
"text": "The jury returned a majority verdict that both of them were guilty of the offences under those sections."
}
},
{
"from_name": null,
"id": "e9e4b92963144ff099639d9cb1ea2024",
"to_name": null,
"type": null,
"value": {
"end": 3058,
"labels": [
"FAC"
],
"start": 2887,
"text": "The Assistant Sessions Judge disagreed with the said verdict and made a reference to the High Court of Judicature at Patna, under s. 307 of the Code of Criminal Procedure."
}
},
{
"from_name": null,
"id": "82ad06809b8e422188422c4d66fdff5b",
"to_name": null,
"type": null,
"value": {
"end": 3127,
"labels": [
"FAC"
],
"start": 3059,
"text": "The said reference was heard by a Division Bench of that High Court."
}
},
{
"from_name": null,
"id": "3722ebebf1024310a547517ee78454fe",
"to_name": null,
"type": null,
"value": {
"end": 3349,
"labels": [
"RLC"
],
"start": 3128,
"text": "The learned judges of the High Court overruled the contentions which were urged before them in regard to the charge to the jury being defective and further held that the reference was, in the circumstances, not competent."
}
},
{
"from_name": null,
"id": "f5a8180292af4ada9ef75196c6eb0b76",
"to_name": null,
"type": null,
"value": {
"end": 3572,
"labels": [
"RLC"
],
"start": 3350,
"text": "They, however, without anything more accepted the majority verdict and held the appellants guilty of the offences under ss. 435 and 436 of the Indian Penal Code and sentenced them to six months' rigorous imprisonment each."
}
},
{
"from_name": null,
"id": "bec28a0ee3a04d2b89061e0b140733b4",
"to_name": null,
"type": null,
"value": {
"end": 3694,
"labels": [
"FAC"
],
"start": 3573,
"text": "The appellants obtained from this Court special leave to appeal under Art. 136 of the Constitution and hence this appeal."
}
},
{
"from_name": null,
"id": "cf0293a42bf9490ab5c6be133eb7ca53",
"to_name": null,
"type": null,
"value": {
"end": 3862,
"labels": [
"FAC"
],
"start": 3694,
"text": "\nThe facts leading up to this appeal may be shortly stated as follows:-There was a dispute between the parties as to title to plot No. 1100 of village Rampur, Tengrahi."
}
},
{
"from_name": null,
"id": "02978d06c56f4496a2a458d3f411492d",
"to_name": null,
"type": null,
"value": {
"end": 4056,
"labels": [
"FAC"
],
"start": 3863,
"text": "One Kailash Rai claimed to be the owner of -that plot and also claimed to be in possession of a Palani standing in a portion of that plot as also of a Punjaul, i.e., a haystack in its vicinity."
}
},
{
"from_name": null,
"id": "b791d699df2e46fda40dab5ffa26ccad",
"to_name": null,
"type": null,
"value": {
"end": 4280,
"labels": [
"FAC"
],
"start": 4057,
"text": "There had been proceedings under s. 144 of the Code of Criminal Procedure in regard to this area leading up to a title ,suit being T.S. No. 58/8 of 1948 /50 filed by Kailash Rai against the appellants in regard to the same."
}
},
{
"from_name": null,
"id": "cee2afbb911c4208ad3732258d82eb20",
"to_name": null,
"type": null,
"value": {
"end": 4382,
"labels": [
"FAC"
],
"start": 4281,
"text": "A decree had been pawed on December 16, 1950, in that title suit dismissing the claim of Kailash Rai."
}
},
{
"from_name": null,
"id": "84ebde8ccc304fcd9dbd11e77f39555f",
"to_name": null,
"type": null,
"value": {
"end": 4501,
"labels": [
"FAC"
],
"start": 4383,
"text": "An appeal had been filed by Kailash Rai against that decree and that appeal was pending at the date of the occurrence."
}
},
{
"from_name": null,
"id": "925a06d0afff43fe959269dabd4876b5",
"to_name": null,
"type": null,
"value": {
"end": 4746,
"labels": [
"FAC"
],
"start": 4502,
"text": "On March 4, 1951, Kailash Rai was sitting in the Palani and at about 3 to 4 p.m. a mob consisting of about 100 to 125 persons including the appellants all armed with lathes, bhallas and pharsas came to the Palani and began to demolish the same."
}
},
{
"from_name": null,
"id": "84598ebb8abd488f8a2376d3a07cf884",
"to_name": null,
"type": null,
"value": {
"end": 4851,
"labels": [
"FAC"
],
"start": 4747,
"text": "Kailash Rai remonstrated and the deceased appellant No. 1, ordered that the Palai should be set on fire."
}
},
{
"from_name": null,
"id": "62a11e6115a54fd1b2053a3c4ab4c0e5",
"to_name": null,
"type": null,
"value": {
"end": 4972,
"labels": [
"FAC"
],
"start": 4852,
"text": "The appellant No. 2 thereupon set fire to the Palani with a match stick and the appellant No. 3 set fire to the Punjaul."
}
},
{
"from_name": null,
"id": "a8fe1ca81d8248a59ccebf5cd7ec1ccc",
"to_name": null,
"type": null,
"value": {
"end": 5085,
"labels": [
"FAC"
],
"start": 4973,
"text": "The first information report of this occurrence was lodged at Gopalganj Police Station at 8 p.m. the same night."
}
},
{
"from_name": null,
"id": "6b934590827e4792ad60a2a131c80d81",
"to_name": null,
"type": null,
"value": {
"end": 5279,
"labels": [
"FAC"
],
"start": 5086,
"text": "The officer in charge of Gopalganj Police Station investigated the case andchallaned the appellants charging them with having committed, offences under ss. 435 and 436 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "1c1f31139625455080db26aaa558bbf5",
"to_name": null,
"type": null,
"value": {
"end": 5465,
"labels": [
"FAC"
],
"start": 5280,
"text": "The Committing Court found a prima facie case made out against the appellants and sent them up for trial by the Assistant Sessions Judge, Second Court, Chapra, who tried them by a jury."
}
},
{
"from_name": null,
"id": "762e9b4c677b487c8ac949b7c24a172f",
"to_name": null,
"type": null,
"value": {
"end": 5536,
"labels": [
"FAC"
],
"start": 5466,
"text": "The jury returned a majority verdict of guilty against the appellants."
}
},
{
"from_name": null,
"id": "4ec02bf18a124628992f009011f8476e",
"to_name": null,
"type": null,
"value": {
"end": 6239,
"labels": [
"FAC"
],
"start": 5537,
"text": "The Assistant Sessions Judge, however, disagreed with that verdict and made a reference to the High Court stating in the letter of reference that on the evidence recorded before him the appellants had been in possession of the Palani and the Punjaul but were dispossessed of the same some time prior to the passing of the decree in the title suit on December 16,1950, and were therefore justified in taking steps for recovery of possession thereof from Kailash Rai on March 4, 195 1, and if in that process the appellants set fire to the Palani and the Punjaul they were only destroying their own property and were not guilty of the offence of committing mischief by fire as alleged by the prosecution."
}
},
{
"from_name": null,
"id": "50b8a7e5548f43b3b7069fa660c4cbe9",
"to_name": null,
"type": null,
"value": {
"end": 6604,
"labels": [
"FAC"
],
"start": 6240,
"text": "The Assistant Sessions Judge tried to analyse the working of the minds of the jury in arriving at the verdict which they did and though he agreed with the alleged finding of fact reached by the jury in regard to the possession of the Palani and the Punjaul, disagreed with the law as allegedly applied by the jury and therefore disagreed with the majority verdict."
}
},
{
"from_name": null,
"id": "df01dbe388244bab91918c849aac7cf8",
"to_name": null,
"type": null,
"value": {
"end": 7170,
"labels": [
"FAC"
],
"start": 6604,
"text": "\nWhen the reference was heard before the High Court, the counsel for the appellants only contended that the charge addressed by the Assistant Sessions Judge to the jury was defective and he did not invite the High Court, as he should have done, to consider the entire evidence and to acquit or convict the appellants of the offences of which the jury could have convicted them upon the charges framed and placed before it, after giving due weight to the opinions of the learned Sessions Judge and the jury as required by a. 307 (3) of the Code of Criminal Procedure."
}
},
{
"from_name": null,
"id": "3a08fef717904de6bf219a2399e1ac5b",
"to_name": null,
"type": null,
"value": {
"end": 7447,
"labels": [
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],
"start": 7171,
"text": "The High Court, therefore, only considered the objections which had been urged by the learned counsel for the appellants before it in regard to the charge being defective and overruled them, accepted the majority verdict, convicted the appellants and -sentenced them as above."
}
},
{
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"labels": [
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],
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"text": "\nWe are of opinion that in so doing the High Court was clearly in error and acted in violation of the provisions of s. 307 (3) of the Code of Criminal Procedure."
}
},
{
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"id": "ec88745c09b643e0a98064a1c681ed12",
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"value": {
"end": 8139,
"labels": [
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],
"start": 7609,
"text": "Section 307 (3) provides:- In dealing with the case so submitted the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict such accused of any offence of which the jury could have convicted him upon the charge framed and placed before it; and, if it convicts him, may pass such sentence a,% might have been passed by the Court of Sessions.\""
}
},
{
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"id": "03757f16f8f7449d9c83cd9aba2dabd5",
"to_name": null,
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"value": {
"end": 8453,
"labels": [
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],
"start": 8139,
"text": "\nWe had occasion to consider this provision in Akhlakali Hayatalli v. The State of Bombay(1) where we approved of the following observations of their Lordships of the Privy Council in Ramanugrah Singh v. The Emperor(2): \" The powers of the High Court in dealing with the reference are contained in sub-section (3)."
}
},
{
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"id": "a2b44464e4f14c2a9156f2b1b08f4c09",
"to_name": null,
"type": null,
"value": {
"end": 8600,
"labels": [
"PRE_RELIED"
],
"start": 8454,
"text": "It may exercise any of the powers. which it might exercise upon an appeal, and this includes the power to call fresh evidence conferred by s.\n428."
}
},
{
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"id": "fb0bbf966370476b95f2f067db67733c",
"to_name": null,
"type": null,
"value": {
"end": 8747,
"labels": [
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],
"start": 8601,
"text": "The Court must consider the whole case and give due weight to the opinions of the Sessions Judge and jury, and then acquit or convict the accused."
}
},
{
"from_name": null,
"id": "0fd71730833b48a3b08748b72d713966",
"to_name": null,
"type": null,
"value": {
"end": 8869,
"labels": [
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],
"start": 8748,
"text": "In their Lordships' view, the paramount consideration in the High Court must be whether the ends of justice require that."
}
},
{
"from_name": null,
"id": "a94dcaa890c647ea903a9107db6cfea4",
"to_name": null,
"type": null,
"value": {
"end": 8914,
"labels": [
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],
"start": 8870,
"text": "the verdict of the jury should be set aside."
}
},
{
"from_name": null,
"id": "babff10056d241449fa153de2d424e99",
"to_name": null,
"type": null,
"value": {
"end": 9405,
"labels": [
"PRE_RELIED"
],
"start": 8915,
"text": "In general, if the evidence is such that it can properly support a verdict either of guilty, or. not guilty according to the view taken of it by the trial Court, and if the jury take one view of the evidence and the, judge thinks that they should have taken the other, the view of the jury must prevail, since they are the judges of fact. In such a case a reference is not justified, and it is only by accepting their view that the High Court can give due weight to the opinion of the jury."
}
},
{
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"id": "f2cd9142af1c44079061e5dac6556536",
"to_name": null,
"type": null,
"value": {
"end": 9709,
"labels": [
"PRE_RELIED"
],
"start": 9405,
"text": "\nIt, however, (I) [1954] S.C.R. 435. 442.\n(2) A.I.R. 1946 P.C. 151, 154.the High Court considers that upon the evidence no reasonable body- of men could have reached the conclusion arrived at by the jury, then the reference was justified and the ends of justice required that the verdict be disregarded.\""
}
},
{
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"id": "8a46dba463fa4fa2bb10530416b00179",
"to_name": null,
"type": null,
"value": {
"end": 9835,
"labels": [
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],
"start": 9709,
"text": "\nThis wag pronounced by us to be the correct method of approach in a reference under s. 307 of the Code of Criminal Procedure."
}
},
{
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"id": "3cabcae45e68485eb322e4339714a582",
"to_name": null,
"type": null,
"value": {
"end": 10075,
"labels": [
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],
"start": 9836,
"text": "It was incumbent on the High Court when the reference was heard by it to consider the entire evidence and come to its own conclusion whether the evidence was such that it could properly support the verdict of guilty against the appellants."
}
},
{
"from_name": null,
"id": "ef3c78f5b1014f2ebde59faa3af37d46",
"to_name": null,
"type": null,
"value": {
"end": 10386,
"labels": [
"ANALYSIS"
],
"start": 10076,
"text": "If the High Court came to the conclusion that the evidence was such that it was possible for the jury to take the view that it did even though the judge thought that they should have taken another view the reference would not have been justified and the High Court should have accepted the opinion of the jury."
}
},
{
"from_name": null,
"id": "8fc61ad1e8e844b5b3aff3cb16cb1577",
"to_name": null,
"type": null,
"value": {
"end": 10652,
"labels": [
"ANALYSIS"
],
"start": 10387,
"text": "If the High Court was however of opinion upon the evidence that no reasonable body of men could have reached the conclusion arrived at by the jury the reference would have been quite justified and the ends of justice required that the verdict should be disregarded."
}
},
{
"from_name": null,
"id": "f4402219ed974369a7774cd8bb76e484",
"to_name": null,
"type": null,
"value": {
"end": 10895,
"labels": [
"ANALYSIS"
],
"start": 10653,
"text": "The High Court, however, only considered the arguments in regard to the defect in the charge to the jury addressed before it by the learned counsel for the appellants and did not consider the entire evidence which was on the record before it."
}
},
{
"from_name": null,
"id": "c98cd5d87512472aacb8000f20c5269e",
"to_name": null,
"type": null,
"value": {
"end": 11025,
"labels": [
"ANALYSIS"
],
"start": 10896,
"text": "In not having done so, we are clearly of opinion that it violated the provisions of s. 307 (3) of the Code of Criminal Procedure."
}
},
{
"from_name": null,
"id": "efd190e7384542d0a17b632e3dec5bf7",
"to_name": null,
"type": null,
"value": {
"end": 11332,
"labels": [
"RATIO"
],
"start": 11025,
"text": "\nWe are accordingly of opinion that the judgment of the High Court accepting the majority verdict and convicting the appellants and sentencing them as above without considering the entire evidence was clearly wrong and the conviction of the appellants and the sentences passed upon them should be set aside."
}
},
{
"from_name": null,
"id": "ad91f8cd01bd4aea9a22aaee01fba2a4",
"to_name": null,
"type": null,
"value": {
"end": 11594,
"labels": [
"RATIO"
],
"start": 11332,
"text": "\nWe were invited by learned counsel for the parties appearing before us to consider the entire evidence for ourselves and come to the conclusion which, according to the provisions of s. 307 (3) of the Code of Criminal Procedure, I he High Court should have done."
}
},
{
"from_name": null,
"id": "5f8895b0ef844f83bf16c50a1d556cbc",
"to_name": null,
"type": null,
"value": {
"end": 11861,
"labels": [
"RPC"
],
"start": 11595,
"text": "We do not think that is the proper procedure to adopt and we therefore allow the- appeal, and remand this matter to the High Court to act in accordance with the provisions of s.\n307 (3) of the Code of Criminal Procedure and deal with the same in accordance with law."
}
},
{
"from_name": null,
"id": "ccae49a8b07b4a75b2e0ee53faa6b75b",
"to_name": null,
"type": null,
"value": {
"end": 11918,
"labels": [
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],
"start": 11862,
"text": "The appellants Will continue on the same bail as before."
}
},
{
"from_name": null,
"id": "9ef00b414d7e47c7bfffdf2f4fa72459",
"to_name": null,
"type": null,
"value": {
"end": 11934,
"labels": [
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],
"start": 11918,
"text": "\nAppeal allowed."
}
}
]
}
] | 4,128 | {
"text": "PETITIONER:\nRATAN RAI\n\n Vs.\n\nRESPONDENT:\nSTATE OF BIHAR\n\nDATE OF JUDGMENT:\n30/01/1956\n\nBENCH:\n\nACT:\nReference-jury trial-judge disagreeing with the verdict-\nProcedure-Duty of counsel-High Court-If can accept majority\nverdict without considering the entire evidence-Supreme\nCourt If should adopt the Procedure--Code of Criminal\nProcedure (Act V of 1898), as amended by Act XXVI of 1955 s.\n307.\n\nHEADNOTE:\nThe appellants were charged under ss., 435 and 436 of the\nIndian Penal Code and were tried by a jury, who returned a\nmajority verdict of guilty. The Assistant Sessions judge\ndisagreed with the said verdict and made a reference to the\nHigh Court.\nAt the hearing of the reference the counsel for the\nappellants only contended that the charge to the jury was\ndefective, and did not place the entire evidence before the\njudges, who only considered the objections' urged, and\nnothing more, and held the274\nreference to be incompetent and found the appellants guilty\nand convicted them.\nHeld, that in a reference under s. 307 of the Code of\nCriminal Procedure it was the duty of counsel to place, and\n-it was incumbent on the High Court to consider, the entire\nevidence and the charge as framed and placed before the jury\nand to come to its own conclusion, after giving due weight\nto the opinion of the trial judge and the verdict of the\njury, and to acquit or convict the accused of the offences\nof which the jury could have convicted or acquitted him. It\nwas wrong of the' High Court to pass judgment without\nconsidering the entire evidence.\nIt is not proper for the Supreme Court to adopt the\nprocedure of considering the entire evidence and come to a\nconclusion which according to the provisions of s.307(3) of\nthe Code of Criminal Procedure the High Court should have\ndone.\nAkhlakali Hayatalli v. The State of Bombay, (1954) S.C.R.\n435 and Ramanugrah Singh v. The Emperor, A.I.R. T946 P.C.\n151, referred to.\n\nJUDGMENT:\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 104 of 1955.\nAppeal by special leave from the judgment and order' dated September 9, 1953, of the Patna High Court in Jury Reference No. I of 1952 arising out of the ReferencE made on February 16, 1952, by the Assistant Sessions Judge, 2nd Court, Chapra, in connection with Sessions Trial No. 81 of 1951.\nS. P. Verma, for the appellants Nos. 2 and 3.\nB. K. Saran and R. C. Prasad, for the respondent.\n1957. January 30. The Judgment of the Court was delivered by BHAGWATI J.-The appellants Nos. 2 and 3, who are the surviving appellants after the death of appellant No. 1 during the pendency of this appeal, were charged with having committed offences under ss. 435 and 436 of the Indian Penal Code and were tried by the Second Assistant Sessions Judge of Saran, Chapra, with the aid of a jury. The jury returned a majority verdict that both of them were guilty of the offences under those sections. The Assistant Sessions Judge disagreed with the said verdict and made a reference to the High Court of Judicature at Patna, under s. 307 of the Code of Criminal Procedure. The said reference was heard by a Division Bench of that High Court.\nThe learned judges of the High Court overruled the contentions which were urged before them in regard to the charge to the jury being defective and further held that the reference was, in the circumstances, not competent. They, however, without anything more accepted the majority verdict and held the appellants guilty of the offences under ss. 435 and 436 of the Indian Penal Code and sentenced them to six months' rigorous imprisonment each. The appellants obtained from this Court special leave to appeal under Art. 136 of the Constitution and hence this appeal.\nThe facts leading up to this appeal may be shortly stated as follows:-There was a dispute between the parties as to title to plot No. 1100 of village Rampur, Tengrahi. One Kailash Rai claimed to be the owner of -that plot and also claimed to be in possession of a Palani standing in a portion of that plot as also of a Punjaul, i.e., a haystack in its vicinity. There had been proceedings under s. 144 of the Code of Criminal Procedure in regard to this area leading up to a title ,suit being T.S. No. 58/8 of 1948 /50 filed by Kailash Rai against the appellants in regard to the same. A decree had been pawed on December 16, 1950, in that title suit dismissing the claim of Kailash Rai. An appeal had been filed by Kailash Rai against that decree and that appeal was pending at the date of the occurrence. On March 4, 1951, Kailash Rai was sitting in the Palani and at about 3 to 4 p.m. a mob consisting of about 100 to 125 persons including the appellants all armed with lathes, bhallas and pharsas came to the Palani and began to demolish the same.\nKailash Rai remonstrated and the deceased appellant No. 1, ordered that the Palai should be set on fire. The appellant No. 2 thereupon set fire to the Palani with a match stick and the appellant No. 3 set fire to the Punjaul. The first information report of this occurrence was lodged at Gopalganj Police Station at 8 p.m. the same night. The officer in charge of Gopalganj Police Station investigated the case andchallaned the appellants charging them with having committed, offences under ss. 435 and 436 of the Indian Penal Code.\nThe Committing Court found a prima facie case made out against the appellants and sent them up for trial by the Assistant Sessions Judge, Second Court, Chapra, who tried them by a jury. The jury returned a majority verdict of guilty against the appellants. The Assistant Sessions Judge, however, disagreed with that verdict and made a reference to the High Court stating in the letter of reference that on the evidence recorded before him the appellants had been in possession of the Palani and the Punjaul but were dispossessed of the same some time prior to the passing of the decree in the title suit on December 16,1950, and were therefore justified in taking steps for recovery of possession thereof from Kailash Rai on March 4, 195 1, and if in that process the appellants set fire to the Palani and the Punjaul they were only destroying their own property and were not guilty of the offence of committing mischief by fire as alleged by the prosecution. The Assistant Sessions Judge tried to analyse the working of the minds of the jury in arriving at the verdict which they did and though he agreed with the alleged finding of fact reached by the jury in regard to the possession of the Palani and the Punjaul, disagreed with the law as allegedly applied by the jury and therefore disagreed with the majority verdict.\nWhen the reference was heard before the High Court, the counsel for the appellants only contended that the charge addressed by the Assistant Sessions Judge to the jury was defective and he did not invite the High Court, as he should have done, to consider the entire evidence and to acquit or convict the appellants of the offences of which the jury could have convicted them upon the charges framed and placed before it, after giving due weight to the opinions of the learned Sessions Judge and the jury as required by a. 307 (3) of the Code of Criminal Procedure. The High Court, therefore, only considered the objections which had been urged by the learned counsel for the appellants before it in regard to the charge being defective and overruled them, accepted the majority verdict, convicted the appellants and -sentenced them as above.\nWe are of opinion that in so doing the High Court was clearly in error and acted in violation of the provisions of s. 307 (3) of the Code of Criminal Procedure. Section 307 (3) provides:- In dealing with the case so submitted the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict such accused of any offence of which the jury could have convicted him upon the charge framed and placed before it; and, if it convicts him, may pass such sentence a,% might have been passed by the Court of Sessions.\"\nWe had occasion to consider this provision in Akhlakali Hayatalli v. The State of Bombay(1) where we approved of the following observations of their Lordships of the Privy Council in Ramanugrah Singh v. The Emperor(2): \" The powers of the High Court in dealing with the reference are contained in sub-section (3). It may exercise any of the powers. which it might exercise upon an appeal, and this includes the power to call fresh evidence conferred by s.\n428. The Court must consider the whole case and give due weight to the opinions of the Sessions Judge and jury, and then acquit or convict the accused. In their Lordships' view, the paramount consideration in the High Court must be whether the ends of justice require that. the verdict of the jury should be set aside. In general, if the evidence is such that it can properly support a verdict either of guilty, or. not guilty according to the view taken of it by the trial Court, and if the jury take one view of the evidence and the, judge thinks that they should have taken the other, the view of the jury must prevail, since they are the judges of fact. In such a case a reference is not justified, and it is only by accepting their view that the High Court can give due weight to the opinion of the jury.\nIt, however, (I) [1954] S.C.R. 435. 442.\n(2) A.I.R. 1946 P.C. 151, 154.the High Court considers that upon the evidence no reasonable body- of men could have reached the conclusion arrived at by the jury, then the reference was justified and the ends of justice required that the verdict be disregarded.\"\nThis wag pronounced by us to be the correct method of approach in a reference under s. 307 of the Code of Criminal Procedure. It was incumbent on the High Court when the reference was heard by it to consider the entire evidence and come to its own conclusion whether the evidence was such that it could properly support the verdict of guilty against the appellants. If the High Court came to the conclusion that the evidence was such that it was possible for the jury to take the view that it did even though the judge thought that they should have taken another view the reference would not have been justified and the High Court should have accepted the opinion of the jury. If the High Court was however of opinion upon the evidence that no reasonable body of men could have reached the conclusion arrived at by the jury the reference would have been quite justified and the ends of justice required that the verdict should be disregarded. The High Court, however, only considered the arguments in regard to the defect in the charge to the jury addressed before it by the learned counsel for the appellants and did not consider the entire evidence which was on the record before it. In not having done so, we are clearly of opinion that it violated the provisions of s. 307 (3) of the Code of Criminal Procedure.\nWe are accordingly of opinion that the judgment of the High Court accepting the majority verdict and convicting the appellants and sentencing them as above without considering the entire evidence was clearly wrong and the conviction of the appellants and the sentences passed upon them should be set aside.\nWe were invited by learned counsel for the parties appearing before us to consider the entire evidence for ourselves and come to the conclusion which, according to the provisions of s. 307 (3) of the Code of Criminal Procedure, I he High Court should have done. We do not think that is the proper procedure to adopt and we therefore allow the- appeal, and remand this matter to the High Court to act in accordance with the provisions of s.\n307 (3) of the Code of Criminal Procedure and deal with the same in accordance with law. The appellants Will continue on the same bail as before.\nAppeal allowed.\n"
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"value": {
"end": 910,
"labels": [
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"start": 901,
"text": "District."
}
},
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"end": 967,
"labels": [
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"start": 937,
"text": "{ By Sri T.Jayaramu, Advocate}"
}
},
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"id": "0a630a837c7b48869c63797268438b9f",
"to_name": "text",
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"value": {
"end": 1058,
"labels": [
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"start": 994,
"text": "Shivannegowda @ Shiva, S/o\n Thammegowda,"
}
},
{
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"id": "4c8c174a59f042e6862dff74e986ecd3",
"to_name": "text",
"type": "labels",
"value": {
"end": 1106,
"labels": [
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"start": 1059,
"text": "32 years, residing at\n "
}
},
{
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"id": "e4f41737e3a24314bae378fe78fcdf15",
"to_name": "text",
"type": "labels",
"value": {
"end": 1116,
"labels": [
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"start": 1106,
"text": "Kogilavadi"
}
},
{
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"id": "fca89974485c4659a95f19ba769268aa",
"to_name": "text",
"type": "labels",
"value": {
"end": 1144,
"labels": [
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"start": 1117,
"text": "Village, Periyapatna Taluk,"
}
},
{
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"id": "0b88f30f951944278021c7056980e331",
"to_name": "text",
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"value": {
"end": 1186,
"labels": [
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"start": 1170,
"text": "Mysore District."
}
},
{
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"id": "4a984fe23b974298bc544e13866541f5",
"to_name": "text",
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"value": {
"end": 1265,
"labels": [
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"start": 1186,
"text": "\n\n {By Sri V.B.Naik, Advocate}\n\nPetitioners: :"
}
},
{
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"id": "99690ce62cb642a6b8ffcde665df04c0",
"to_name": "text",
"type": "labels",
"value": {
"end": 1300,
"labels": [
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],
"start": 1266,
"text": "1. Papegowda, S/o Late Rangegowda,"
}
},
{
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"id": "05e48b7ed1e049d68a8383ca6933b074",
"to_name": "text",
"type": "labels",
"value": {
"end": 1392,
"labels": [
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"start": 1300,
"text": "\n 65 years\n(C.Mis.No.1869/14)\n "
}
},
{
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"id": "5946bd7810c14d83a09af9420eda4233",
"to_name": "text",
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"value": {
"end": 1423,
"labels": [
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],
"start": 1392,
"text": "2. Chandrashekar @ Annaiah, S/o"
}
},
{
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"id": "202b5e20819c4863bbea28d64056e408",
"to_name": "text",
"type": "labels",
"value": {
"end": 1474,
"labels": [
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],
"start": 1458,
"text": "late Rangegowda,"
}
},
{
"from_name": "label",
"id": "11e7a44ac0cc4fa9bd18e1cb391264c2",
"to_name": "text",
"type": "labels",
"value": {
"end": 1586,
"labels": [
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],
"start": 1475,
"text": "45 years\n\n 3. Nataraju, S/o Chikkegowda, 47\n years"
}
},
{
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"id": "c2b87d1c7e194b16964b43ddb215b8e0",
"to_name": "text",
"type": "labels",
"value": {
"end": 2530,
"labels": [
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],
"start": 1617,
"text": "All are residing at Kovilavadi Village,\n Periyapatna Taluk, Mysore District.\n\n {By Sri C.Appaji Gowda, Advocate}\n\n\n 2\n\nPetitioners: : 1. Prakasha, S/o Chikkanna, aged\n about 44 years, residing at\n(Crl.Mis.No.1910/14) Kogilavadi Village, Periyapatna\n Taluk, Mysore District.\nRespondent :\n(Common in all 2. K.A.Harisha, S/o Appanna, aged\ncases) about 22 years, residing at\n Kogilavadi Village, Periyapatna\n Taluk, Mysore District.\n\n {By Smt.Jyothi Madan Kumar, Adv.}\n\n Vs.\n\n State by Periyapatna Police Station.\n\n { By Public Prosecutor, Mysore }\n\n::"
}
},
{
"from_name": "label",
"id": "b844caddfd2c437f92504b46e0a6ef34",
"to_name": "text",
"type": "labels",
"value": {
"end": 2611,
"labels": [
"FAC"
],
"start": 2531,
"text": "COMMON ORDER ON BAIL PETITIONS FILED UNDER SECTIONS 438 AND 439 OF THE CR.P.C. :"
}
},
{
"from_name": "label",
"id": "d9fe4eea720244c0a6a47eb16a1f0fe2",
"to_name": "text",
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"value": {
"end": 2929,
"labels": [
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],
"start": 2611,
"text": ": Crl.Mis.No.1857/2014 is filed by petitioners under Section 438 of the Cr.P.C. praying to grant them Anticipatory Bail in Crime No.260/2014 registered by the respondent police for the offences punishable under Sections 143, 144, 147, 148, 341, 302, 149 of the I.P.C. and under Sections 3, 24 and 25 of Arms Act, 1959."
}
},
{
"from_name": "label",
"id": "fe8f149400c443c698bfcd77cff4d28c",
"to_name": "text",
"type": "labels",
"value": {
"end": 3318,
"labels": [
"FAC"
],
"start": 2931,
"text": "Crl.Mis.No.1817/2014, Crl.Mis.No.1869/2014 and Crl.Mis.No.1910/2014 are filed by the petitioners under Section 439 of the Cr.P.C. praying to grant them regular bail in Crime No.260/2014 registered by the respondent police for the offences punishable under Sections 143, 144, 147, 148, 341, 302, 149 of the I.P.C. and under Sections 3, 24 and 25 of Arms Act, 1959.\n 2."
}
},
{
"from_name": "label",
"id": "c8369dfa7ee649f298404eab3f031ab6",
"to_name": "text",
"type": "labels",
"value": {
"end": 3513,
"labels": [
"FAC"
],
"start": 3319,
"text": "On the other hand, the learned Public Prosecutor has resisted the aforesaid bail petitions of the petitioners in all the 4 cases by filing his separate objections and prayed to dismiss the same."
}
},
{
"from_name": "label",
"id": "0aa6ab9be83540e7a2b0329e947807e2",
"to_name": "text",
"type": "labels",
"value": {
"end": 3557,
"labels": [
"NONE"
],
"start": 3513,
"text": "\n 3 Crl.Mis.Nos.1857,1817,1869 & 1910/14 3."
}
},
{
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"id": "49daa88a69db4f09b2e37668aebac78c",
"to_name": "text",
"type": "labels",
"value": {
"end": 3791,
"labels": [
"FAC"
],
"start": 3558,
"text": "Since all the petitions have arisen out of the same Crime Number, all the 4 cases are clubbed and I proceed to pass common order in Crl.Mis.No.1857/2014 by clubbing Crl.Mis.No.1817/2014, Crl.Mis.No.1869/2014 and Crl.Mis.No.1910/2014."
}
},
{
"from_name": "label",
"id": "5d52a10cb5224960a942b68c09f1bb6c",
"to_name": "text",
"type": "labels",
"value": {
"end": 3838,
"labels": [
"NONE"
],
"start": 3793,
"text": "4. Heard the arguments of both the sides.\n 5."
}
},
{
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"id": "b6cb64fa3ee14792ab57c3e1b73f63e2",
"to_name": "text",
"type": "labels",
"value": {
"end": 3911,
"labels": [
"ISSUE"
],
"start": 3839,
"text": "At this stage, the following Points have arisen for my determination: 1."
}
},
{
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"id": "9d7b8842494440c2b90492196f2ee73c",
"to_name": "text",
"type": "labels",
"value": {
"end": 4038,
"labels": [
"ISSUE"
],
"start": 3912,
"text": "Whether the petitioners in Crl.Mis.No.1857/2014 are entitled to be granted anticipatory bail under Section 438 of the Cr.P.C.?"
}
},
{
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"id": "c57a2994dd72483789ef5acff93d17ea",
"to_name": "text",
"type": "labels",
"value": {
"end": 4211,
"labels": [
"ISSUE"
],
"start": 4038,
"text": "\n 2. Whether the petitioners in Crl.Mis.No.1817/2014, Crl.Mis.No.1869/2014 and Crl.Mis.No.1910/2014 are entitled to be granted regular bail under Section 439 of the Cr.P.C.?"
}
},
{
"from_name": "label",
"id": "8f530f6fc16d4f04880e574fb72e2cca",
"to_name": "text",
"type": "labels",
"value": {
"end": 4227,
"labels": [
"RPC"
],
"start": 4213,
"text": "3. What Order?"
}
},
{
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"id": "a1eedf0277e4437787bb6e788dd5f685",
"to_name": "text",
"type": "labels",
"value": {
"end": 4443,
"labels": [
"FAC"
],
"start": 4227,
"text": "\n 6. My findings on the aforesaid Points are held as under: Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per my final order below, for the following: : R e a s o n s : Points-1 and 2:- 7."
}
},
{
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"id": "922217442aae408881f8bb0b268703b8",
"to_name": "text",
"type": "labels",
"value": {
"end": 4533,
"labels": [
"ANALYSIS"
],
"start": 4444,
"text": "Perused the petitions, FIR, written complaint, C.D. and other materials placed before me."
}
},
{
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"id": "d3b929f4a2e8490084c2c4025528df77",
"to_name": "text",
"type": "labels",
"value": {
"end": 4626,
"labels": [
"FAC"
],
"start": 4534,
"text": "They reveal that, on 27-09-2014 at 6.00 p.m., the Complainant was returning to home by walk."
}
},
{
"from_name": "label",
"id": "c4efd7065c454b9193570658ddbc4631",
"to_name": "text",
"type": "labels",
"value": {
"end": 4793,
"labels": [
"FAC"
],
"start": 4627,
"text": "On the way, near the land of one Rajeshekar and Thammegowda, his brother by name K.S.Mahadeva was murdered by accused-1 to 9 named in the 4 written complaint and FIR."
}
},
{
"from_name": "label",
"id": "b61fcd5e6bfe4f059db88e8cc31da658",
"to_name": "text",
"type": "labels",
"value": {
"end": 4897,
"labels": [
"FAC"
],
"start": 4794,
"text": "Said accused had murdered Mahadeva by firing a bullet at him and also by assaulting him with a chopper."
}
},
{
"from_name": "label",
"id": "0b71380ea3b84feab06c1ecfbe4bb4e1",
"to_name": "text",
"type": "labels",
"value": {
"end": 5005,
"labels": [
"FAC"
],
"start": 4897,
"text": "\nThere was a land dispute between the deceased, Complainant on one side and accused persons on another side."
}
},
{
"from_name": "label",
"id": "f2d84eb44ea64ea1887ede513b6338a0",
"to_name": "text",
"type": "labels",
"value": {
"end": 5206,
"labels": [
"FAC"
],
"start": 5006,
"text": "Earlier to this incident, the accused had attempted to kill the Complainant for two times and two separate cases were registered against them for the offence punishable under Section 307 of the I.P.C."
}
},
{
"from_name": "label",
"id": "eb88a1f684d74c8cb8bc8f91299ca45b",
"to_name": "text",
"type": "labels",
"value": {
"end": 5271,
"labels": [
"FAC"
],
"start": 5207,
"text": "The said cases are pending for consideration before FTC, Hunsur."
}
},
{
"from_name": "label",
"id": "968210e8c68b4689a2f44c02289bbfae",
"to_name": "text",
"type": "labels",
"value": {
"end": 5359,
"labels": [
"FAC"
],
"start": 5272,
"text": "Since they had a threat to their lives, they had prayed for providing a Gunman to them."
}
},
{
"from_name": "label",
"id": "4e89a777e30d4c9aa0eb6592355257ca",
"to_name": "text",
"type": "labels",
"value": {
"end": 5420,
"labels": [
"FAC"
],
"start": 5360,
"text": "Inspite of it, police did not provided the security to them."
}
},
{
"from_name": "label",
"id": "2ef706cdd7474087aacf0f0d3979dc13",
"to_name": "text",
"type": "labels",
"value": {
"end": 5501,
"labels": [
"FAC"
],
"start": 5421,
"text": "The accused in order to destroy the evidence have murdered his brother Mahadeva."
}
},
{
"from_name": "label",
"id": "b60bfaf20ca24dca9017843d7b882108",
"to_name": "text",
"type": "labels",
"value": {
"end": 5614,
"labels": [
"FAC"
],
"start": 5502,
"text": "He is also a witness in the said two cases registered for the offence punishable under Section 307 of the I.P.C."
}
},
{
"from_name": "label",
"id": "700f6ff21f02430e9619f732a6589c8d",
"to_name": "text",
"type": "labels",
"value": {
"end": 5660,
"labels": [
"FAC"
],
"start": 5615,
"text": "The accused also have intended to murder him."
}
},
{
"from_name": "label",
"id": "b894047009db4309a22c418d1c47024c",
"to_name": "text",
"type": "labels",
"value": {
"end": 5783,
"labels": [
"FAC"
],
"start": 5661,
"text": "One Santhosh, son of his sister has witnessed the incident in question and informed the same to the members of the family."
}
},
{
"from_name": "label",
"id": "97d2afce45a3400abe371ad889eb2a25",
"to_name": "text",
"type": "labels",
"value": {
"end": 5971,
"labels": [
"FAC"
],
"start": 5784,
"text": "Himself, his wife Shilpa, Sannappa, Parashurama have seen accused-1 to 9 referred in the complaint and FIR after the incident while running away by holding Chopper and Gun in their hands."
}
},
{
"from_name": "label",
"id": "da6e7df4a79945008dfcb2b445466684",
"to_name": "text",
"type": "labels",
"value": {
"end": 6263,
"labels": [
"FAC"
],
"start": 5972,
"text": "So, on the basis of the complaint filed by the Complainant, the respondent/police have registered a case in Crime No.260/2014 against the accused-1 to 9 for the offences punishable under Sections 143, 144, 147, 148, 341, 302, 149 of I.P.C. and under Sections 3, 24, 25 of Arms act, 1959.\n 8."
}
},
{
"from_name": "label",
"id": "90939649db3a476aa9419bb582d06f47",
"to_name": "text",
"type": "labels",
"value": {
"end": 6365,
"labels": [
"FAC"
],
"start": 6264,
"text": "Petitioners-1 to 3 of Crl.Mis.No.1869/2014 are the accused-1, 3 and 4 named in the complaint and FIR."
}
},
{
"from_name": "label",
"id": "7e48a02da217482fbf74daee3979aa61",
"to_name": "text",
"type": "labels",
"value": {
"end": 6528,
"labels": [
"FAC"
],
"start": 6366,
"text": "The Petitioners-1 and 2 of Crl.Mis.No.1910/2014 are accused No.5 named in the FIR and complaint and accused No.13 is named in the Remand Application respectively."
}
},
{
"from_name": "label",
"id": "a98cbbf1b27342638b3b61964ca4a397",
"to_name": "text",
"type": "labels",
"value": {
"end": 6661,
"labels": [
"FAC"
],
"start": 6529,
"text": "The Petitioner of Crl.Mis.No.1817/2014 is the accused 5 Crl.Mis.Nos.1857,1817,1869 & 1910/14 No.14 named in the Remand Application."
}
},
{
"from_name": "label",
"id": "8ecb3af43da84cdc952d9a805df3f974",
"to_name": "text",
"type": "labels",
"value": {
"end": 6812,
"labels": [
"FAC"
],
"start": 6662,
"text": "The names of Petitioners-1 and 2 of Crl.Mis.No.1857/2014 are not appearing either in the written complaint or in the FIR or in the Remand application."
}
},
{
"from_name": "label",
"id": "6b35a8ae6faa4a33af693f05d0c385b9",
"to_name": "text",
"type": "labels",
"value": {
"end": 6906,
"labels": [
"FAC"
],
"start": 6813,
"text": "All the Petitioners of Crl.Mis.No.1817/2014, 1869/2014 and 1910/2014 are in judicial custody."
}
},
{
"from_name": "label",
"id": "16945e57fe4b4f21bf101d60ef4c4ef9",
"to_name": "text",
"type": "labels",
"value": {
"end": 7133,
"labels": [
"FAC"
],
"start": 6908,
"text": "9. Under the said facts and circumstances of the case, the Petitioners of Crl.Mis.No.1817/2014, 1869/2014 and 1910/2014 have filed separate bail applications under Section 439 of the Cr.P.C.\npraying to gram them regular bail."
}
},
{
"from_name": "label",
"id": "be3f7867925a406185685bdf72d84bf4",
"to_name": "text",
"type": "labels",
"value": {
"end": 7350,
"labels": [
"FAC"
],
"start": 7134,
"text": "The Petitioners of Crl.Mis.No.1857/2014 apprehending their arrest by the Respondent/police in the aforesaid crime have filed the bail petition under Section 438 of the Cr.P.C. praying to grant them anticipatory bail."
}
},
{
"from_name": "label",
"id": "3b5b962c497a49398c9d6f9467be99f6",
"to_name": "text",
"type": "labels",
"value": {
"end": 7464,
"labels": [
"ARG_PETITIONER"
],
"start": 7350,
"text": "\n 10. It is contended by the Petitioners of Crl.Mis.No.1857/2014 that they are innocents and law abiding citizens."
}
},
{
"from_name": "label",
"id": "c92d107b65e5422b986d5ac5afdb1781",
"to_name": "text",
"type": "labels",
"value": {
"end": 7510,
"labels": [
"ARG_PETITIONER"
],
"start": 7465,
"text": "They have not committed the alleged offences."
}
},
{
"from_name": "label",
"id": "bee8660da8954383ad9f7eff812404eb",
"to_name": "text",
"type": "labels",
"value": {
"end": 7548,
"labels": [
"ARG_PETITIONER"
],
"start": 7511,
"text": "Their names are not found in the FIR."
}
},
{
"from_name": "label",
"id": "5158adbb5f7041c19af420cbd3e050d3",
"to_name": "text",
"type": "labels",
"value": {
"end": 7694,
"labels": [
"ARG_PETITIONER"
],
"start": 7549,
"text": "Inspite of it, the Respondent/police are trying to arrest them just to harass and cause inconvenience by detaining them in their illegal custody."
}
},
{
"from_name": "label",
"id": "6056cfe9d17f4e03a32d2cd506b0e301",
"to_name": "text",
"type": "labels",
"value": {
"end": 7766,
"labels": [
"ARG_PETITIONER"
],
"start": 7695,
"text": "The 1st Petitioner is a senior citizen suffering from old age ailments."
}
},
{
"from_name": "label",
"id": "da1b5121b38d4b8abc4386adabff9f12",
"to_name": "text",
"type": "labels",
"value": {
"end": 7805,
"labels": [
"ARG_PETITIONER"
],
"start": 7767,
"text": "The 2nd Petitioner is a married woman."
}
},
{
"from_name": "label",
"id": "0c0fcc3448fa4c15ad8d6701ab16a07f",
"to_name": "text",
"type": "labels",
"value": {
"end": 7861,
"labels": [
"ARG_PETITIONER"
],
"start": 7806,
"text": "They are the permanent residents of Kogilavadi village."
}
},
{
"from_name": "label",
"id": "94728642bbad402cae2efe1e139991c5",
"to_name": "text",
"type": "labels",
"value": {
"end": 7915,
"labels": [
"ARG_PETITIONER"
],
"start": 7862,
"text": "They are the agriculturists having landed properties."
}
},
{
"from_name": "label",
"id": "55aa48b79df24743bd0263554092c7ea",
"to_name": "text",
"type": "labels",
"value": {
"end": 7953,
"labels": [
"ARG_PETITIONER"
],
"start": 7916,
"text": "They have grown crops in their lands."
}
},
{
"from_name": "label",
"id": "346c6d5da6164700acd937cdf16ce0fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 8002,
"labels": [
"ARG_PETITIONER"
],
"start": 7954,
"text": "The 1st Petitioner is suffering from ill health."
}
},
{
"from_name": "label",
"id": "36cb7df6b6274337a3e4bd5653f21897",
"to_name": "text",
"type": "labels",
"value": {
"end": 8037,
"labels": [
"ARG_PETITIONER"
],
"start": 8003,
"text": "They hail from respectable family."
}
},
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"labels": [
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],
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"text": "There is no allegation against them in the complaint."
}
},
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"text": "They are ready and willing to abide by the terms and conditions that would be imposed by this Court."
}
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"labels": [
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"text": "So they prayed to grant them anticipatory bail."
}
},
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"start": 8242,
"text": "6 11. It is contended by the Petitioner of Crl.Mis.No.1817/2014 that on perusal of the written complaint of the Complainant, it goes to show that the Complainant is not an eye witness to the incident."
}
},
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"labels": [
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"text": "It further reveals that, one Santhosh is an eye witness to the incident."
}
},
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"end": 8664,
"labels": [
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],
"start": 8515,
"text": "\nThe wife of the Complainant Shilpa, Sannappa and Parashuram have seen these accused who were running away from that place by holding deadly weapons."
}
},
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"end": 9018,
"labels": [
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],
"start": 8665,
"text": "The Remand Application dated 15-10-2014 reveals that the statement of Santhosh, Swamy, Parashuram, Shilpashri, Shanthi, Prema and Shankarappa have been recorded and in the said statements, it is stated that the murder has been committed in order to destroy the evidence as the cases pertaining to attempt to commit an offence of murder are put on trial."
}
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"end": 9124,
"labels": [
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],
"start": 9019,
"text": "If the said statements are perused, it goes to show that, Santhosh is not an eye witness to the incident."
}
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"text": "The witnesses have not seen the accused persons running away from that place."
}
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"value": {
"end": 9302,
"labels": [
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],
"start": 9203,
"text": "Recording of statement of these witnesses has not been mentioned in the earlier Remand Application."
}
},
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"value": {
"end": 9389,
"labels": [
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],
"start": 9303,
"text": "So, it goes to show that a false complaint has been filed on account of past ill will."
}
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"type": "labels",
"value": {
"end": 9444,
"labels": [
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],
"start": 9390,
"text": "The Petitioner was the resident of Kogilavadi village."
}
},
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"value": {
"end": 9544,
"labels": [
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],
"start": 9445,
"text": "After the marriage, he is staying in B.R.Kaval village, the village of his wife since 4 to 5 years."
}
},
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"id": "65914b0857494e19b17fbd697c55fcc5",
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"value": {
"end": 9587,
"labels": [
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],
"start": 9545,
"text": "It is 20 kms away from Kogilavadi village."
}
},
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"end": 9659,
"labels": [
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],
"start": 9588,
"text": "There is an allegation in the written complaint only against 9 persons."
}
},
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"value": {
"end": 9761,
"labels": [
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],
"start": 9660,
"text": "Nowhere it is stated in the complaint that others are also involved in the commission of the offence."
}
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"value": {
"end": 9847,
"labels": [
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],
"start": 9762,
"text": "His name is included in this case only as he is the friend of accused No.1-Papegowda."
}
},
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"end": 9947,
"labels": [
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],
"start": 9848,
"text": "The statement of Basavaraju and Ponnappa have been recorded at the time of drawing inquest mahazar."
}
},
{
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"id": "b31d08cecd2a4b49bc69757b691235a4",
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"type": "labels",
"value": {
"end": 10039,
"labels": [
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],
"start": 9948,
"text": "Said witnesses have not stated as to his involvement in the commission of alleged offences."
}
},
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"value": {
"end": 10184,
"labels": [
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],
"start": 10040,
"text": "Said inquest mahazar reveals that only 9 persons are involved in the commission of the alleged 7 Crl.Mis.Nos.1857,1817,1869 & 1910/14 offences."
}
},
{
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"id": "2510877aaac7463b8ad32d84be4a9ac8",
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"type": "labels",
"value": {
"end": 10228,
"labels": [
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],
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"text": "He is in judicial custody since 15-10-2014."
}
},
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"type": "labels",
"value": {
"end": 10327,
"labels": [
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],
"start": 10229,
"text": "The records reveals that a chopper and clothes have been seized at the instance of the Petitioner."
}
},
{
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"id": "22b462e4eb90486cbb83b9bfabb59f72",
"to_name": "text",
"type": "labels",
"value": {
"end": 10403,
"labels": [
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],
"start": 10328,
"text": "But the remand report does not reveal that said clothes were blood stained."
}
},
{
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"id": "1a32d60aabd0437d9e4fe4c8b547f497",
"to_name": "text",
"type": "labels",
"value": {
"end": 10477,
"labels": [
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],
"start": 10404,
"text": "So also, there is no evidence as to the chopper seized was blood stained."
}
},
{
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"id": "9fc7de3112f04040b96a0957e6942278",
"to_name": "text",
"type": "labels",
"value": {
"end": 10567,
"labels": [
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],
"start": 10478,
"text": "There is no acceptable evidence before this Court to connect the Petitioner in this case."
}
},
{
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"id": "72df25dd4088482497e328f29790c7cb",
"to_name": "text",
"type": "labels",
"value": {
"end": 10615,
"labels": [
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],
"start": 10568,
"text": "His parents are residing at Kogilavadi village."
}
},
{
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"id": "b2dfc8769b4949ba8eda52d86f9c8961",
"to_name": "text",
"type": "labels",
"value": {
"end": 10679,
"labels": [
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],
"start": 10616,
"text": "He used to come to Kogilavadi village often to see his parents."
}
},
{
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"id": "c8a08c40a589444991a96dd7c7217808",
"to_name": "text",
"type": "labels",
"value": {
"end": 10749,
"labels": [
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],
"start": 10680,
"text": "He is residing at B.R.Kaval village along with his wife and children."
}
},
{
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"id": "717def055fb847f78c2e64fde7175d1c",
"to_name": "text",
"type": "labels",
"value": {
"end": 10787,
"labels": [
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],
"start": 10750,
"text": "They are depending upon his earnings."
}
},
{
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"id": "cb9da76874114fb888e055d48dc5d185",
"to_name": "text",
"type": "labels",
"value": {
"end": 10825,
"labels": [
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],
"start": 10788,
"text": "He is an agriculturist by profession."
}
},
{
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"id": "5d775bea61064c9f98bc41738e5363f1",
"to_name": "text",
"type": "labels",
"value": {
"end": 10920,
"labels": [
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],
"start": 10826,
"text": "He is the permanent resident of Kogilavadi village having lands and house in the said village."
}
},
{
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"id": "438ca2d04f964580bd2acbe126acb413",
"to_name": "text",
"type": "labels",
"value": {
"end": 10954,
"labels": [
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],
"start": 10921,
"text": "He hails from respectable family."
}
},
{
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"id": "fc96f1fdd9ed462294a93612d24c25cb",
"to_name": "text",
"type": "labels",
"value": {
"end": 11052,
"labels": [
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],
"start": 10955,
"text": "He is ready and willing to abide by the terms and conditions that would be imposed by this Court."
}
},
{
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"id": "c8dae610fca3468788fc1e8940d9be83",
"to_name": "text",
"type": "labels",
"value": {
"end": 11092,
"labels": [
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],
"start": 11053,
"text": "So he prayed to grant him regular bail."
}
},
{
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"id": "0bb3ebbfad1b4369959b5e5003e65fe3",
"to_name": "text",
"type": "labels",
"value": {
"end": 11206,
"labels": [
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],
"start": 11092,
"text": "\n 12. It is contended by the Petitioners of Crl.Mis.No.1869/2014 that, they are innocents of the alleged offences."
}
},
{
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"id": "04a39573b5194f99861e5c33e9ba1945",
"to_name": "text",
"type": "labels",
"value": {
"end": 11243,
"labels": [
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],
"start": 11207,
"text": "They hail from respectable families."
}
},
{
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"id": "09535da0d7314ae7b9733ec5a69bb401",
"to_name": "text",
"type": "labels",
"value": {
"end": 11291,
"labels": [
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],
"start": 11244,
"text": "They are the earning members of their families."
}
},
{
"from_name": "label",
"id": "eb5131fe786a41c0b4f009ac15ce8dad",
"to_name": "text",
"type": "labels",
"value": {
"end": 11358,
"labels": [
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],
"start": 11291,
"text": "\nTheir names are included in this case on account of past ill will."
}
},
{
"from_name": "label",
"id": "76d442f74bcc4201a04304ecfa5b1b39",
"to_name": "text",
"type": "labels",
"value": {
"end": 11412,
"labels": [
"ARG_PETITIONER"
],
"start": 11359,
"text": "No grave nature of allegations are made against them."
}
},
{
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"id": "80322ad963174f43aea44c66d700f321",
"to_name": "text",
"type": "labels",
"value": {
"end": 11542,
"labels": [
"ARG_PETITIONER"
],
"start": 11413,
"text": "There is no evidence as to they were holding deadly weapons in their hands or they used such weapons in the incident in question."
}
},
{
"from_name": "label",
"id": "0730dc54180a4cbdb0132da6f57c2cdc",
"to_name": "text",
"type": "labels",
"value": {
"end": 11659,
"labels": [
"ARG_PETITIONER"
],
"start": 11543,
"text": "On perusal of the statement of witnesses, it creates doubt as to their presence at the time of incident in question."
}
},
{
"from_name": "label",
"id": "3591cd3186e04071af7e90d75afc38b0",
"to_name": "text",
"type": "labels",
"value": {
"end": 11746,
"labels": [
"ARG_PETITIONER"
],
"start": 11660,
"text": "There is no evidence as to their direct involvement in the commission of the incident."
}
},
{
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"id": "cb89b9296c244a8bb41663685dc78906",
"to_name": "text",
"type": "labels",
"value": {
"end": 11877,
"labels": [
"ARG_PETITIONER"
],
"start": 11747,
"text": "The police have stated that the main offenders have been arrested and the weapons used to commit the offences have been recovered."
}
},
{
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"id": "7a70490e7571477694aaa1bc59ea8bc0",
"to_name": "text",
"type": "labels",
"value": {
"end": 12071,
"labels": [
"ARG_PETITIONER"
],
"start": 11878,
"text": "Though the names of the Petitioners are found in the FIR and it is mentioned that they are accused-1, 3 and 4, but there is no evidence on record as to they have committed the alleged offences."
}
},
{
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"id": "b90ca691107448c789179d387f0d6234",
"to_name": "text",
"type": "labels",
"value": {
"end": 12118,
"labels": [
"ARG_PETITIONER"
],
"start": 12071,
"text": "\n 8 The Petitioners-1 and 2 are agriculturists."
}
},
{
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"id": "6095e9df57294dc29e358d82a1f0d088",
"to_name": "text",
"type": "labels",
"value": {
"end": 12183,
"labels": [
"ARG_PETITIONER"
],
"start": 12119,
"text": "Inspite of it, they were arrested and produced before the Court."
}
},
{
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"id": "39262b863aa14f1da734f4ff5530fe0d",
"to_name": "text",
"type": "labels",
"value": {
"end": 12228,
"labels": [
"ARG_PETITIONER"
],
"start": 12184,
"text": "The Petitioner No.3 is arrested 20 days ago."
}
},
{
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"id": "1444e136cd9347ec9abec9668e0f665d",
"to_name": "text",
"type": "labels",
"value": {
"end": 12269,
"labels": [
"ARG_PETITIONER"
],
"start": 12229,
"text": "They are not required for investigation."
}
},
{
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"id": "8586f13be5924b84bfa1fda300a2e560",
"to_name": "text",
"type": "labels",
"value": {
"end": 12332,
"labels": [
"ARG_PETITIONER"
],
"start": 12270,
"text": "There are no grounds to continue them in the judicial custody."
}
},
{
"from_name": "label",
"id": "dca092dff4ba427c8f653866fc310ddf",
"to_name": "text",
"type": "labels",
"value": {
"end": 12405,
"labels": [
"ARG_PETITIONER"
],
"start": 12333,
"text": "The alleged offences are not punishable with death or life imprisonment."
}
},
{
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"id": "b965ea98abb345cbab18b1580520d645",
"to_name": "text",
"type": "labels",
"value": {
"end": 12461,
"labels": [
"ARG_PETITIONER"
],
"start": 12406,
"text": "They are the permanent residents of Kogilavadi village."
}
},
{
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"id": "dc82e3a302db42899d729ba95ab4feee",
"to_name": "text",
"type": "labels",
"value": {
"end": 12562,
"labels": [
"ARG_PETITIONER"
],
"start": 12462,
"text": "They are ready and willing to abide by the terms and conditions that would be imposed by this Court."
}
},
{
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"id": "dea73858756e40eba84531a5dfaa996f",
"to_name": "text",
"type": "labels",
"value": {
"end": 12617,
"labels": [
"ARG_PETITIONER"
],
"start": 12563,
"text": "The Petitioners-1 and 3 are suffering from ill health."
}
},
{
"from_name": "label",
"id": "1b7df5926b254813b487e3263e2c54ae",
"to_name": "text",
"type": "labels",
"value": {
"end": 12660,
"labels": [
"ARG_PETITIONER"
],
"start": 12618,
"text": "So they prayed to grant them regular bail."
}
},
{
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"id": "6095f30360d948b9bf0dd00a2c1f696f",
"to_name": "text",
"type": "labels",
"value": {
"end": 12807,
"labels": [
"ARG_PETITIONER"
],
"start": 12660,
"text": "\n 13. It is contended by the Petitioners of Crl.Mis.No.1910/2014 that they are innocents of the alleged offences and they are law abiding citizens."
}
},
{
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"id": "1b97c181cb524198bc06d9443d9ddf98",
"to_name": "text",
"type": "labels",
"value": {
"end": 12850,
"labels": [
"ARG_PETITIONER"
],
"start": 12808,
"text": "There is no prima facie case against them."
}
},
{
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"id": "d107d8ad022544a5984df205a645ac0b",
"to_name": "text",
"type": "labels",
"value": {
"end": 12907,
"labels": [
"ARG_PETITIONER"
],
"start": 12851,
"text": "The 2nd Petitioner's name is not forthcoming in the FIR."
}
},
{
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"id": "25b1e21e608c487d97d6656bdcfdad19",
"to_name": "text",
"type": "labels",
"value": {
"end": 12952,
"labels": [
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],
"start": 12908,
"text": "They are respectable persons in the society."
}
},
{
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"id": "8e80ba503e1d480a9f63fe203b487094",
"to_name": "text",
"type": "labels",
"value": {
"end": 13088,
"labels": [
"ARG_PETITIONER"
],
"start": 12953,
"text": "There is no dispute between them and the deceased person in any manner They are having movable and immovable properties in their names."
}
},
{
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"id": "396a662884d44e5a9decba16bbe3a7bf",
"to_name": "text",
"type": "labels",
"value": {
"end": 13131,
"labels": [
"ARG_PETITIONER"
],
"start": 13089,
"text": "There is no prima facie case against them."
}
},
{
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"id": "47242142df7747b1a25c61cbed5f8287",
"to_name": "text",
"type": "labels",
"value": {
"end": 13184,
"labels": [
"ARG_PETITIONER"
],
"start": 13132,
"text": "They are the only earning members of their families."
}
},
{
"from_name": "label",
"id": "e64ffc96d8ec4f2bbd195a52a3f608f2",
"to_name": "text",
"type": "labels",
"value": {
"end": 13227,
"labels": [
"ARG_PETITIONER"
],
"start": 13184,
"text": "\nThe Petitioner No.1 is having a small kid."
}
},
{
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"id": "7d73127d9a554122965fb9fd98059439",
"to_name": "text",
"type": "labels",
"value": {
"end": 13258,
"labels": [
"ARG_PETITIONER"
],
"start": 13228,
"text": "2nd Petitioner is a young boy."
}
},
{
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"id": "1865b074ad2646c688ea788aa0c40275",
"to_name": "text",
"type": "labels",
"value": {
"end": 13359,
"labels": [
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],
"start": 13259,
"text": "They are ready and willing to abide by the terms and conditions that would be imposed by this Court."
}
},
{
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"end": 13402,
"labels": [
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],
"start": 13360,
"text": "So they prayed to grant them regular bail."
}
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"start": 13402,
"text": "\n 14. On the other hand, it is the case of the prosecution that, there is a prima facie case against the Petitioners of all the cases for having committed the alleged offences."
}
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"text": "The statements of witnesses have been recorded."
}
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],
"start": 13627,
"text": "The material objects have been seized."
}
},
{
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"id": "8ba185a9c954417782890f2ffa0e9d0e",
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"end": 13756,
"labels": [
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],
"start": 13666,
"text": "The deadly weapons-Chopper, Gun etc., have been seized at the instance of accused persons."
}
},
{
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"id": "4293170a90da4b279e62d64064d08a6b",
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"value": {
"end": 13848,
"labels": [
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],
"start": 13757,
"text": "Petitioner No.2 Harish of Crl.Mis.No.1910/2014 was arrested and subjected to investigation."
}
},
{
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"id": "0a071bae3cf14cd88af6cb5c124bc0ff",
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"end": 13993,
"labels": [
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],
"start": 13849,
"text": "He revealed that he 9 Crl.Mis.Nos.1857,1817,1869 & 1910/14 made criminal conspiracy with other accused persons to murder the deceased Mahadeva."
}
},
{
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"id": "6032c67e51ca48eabc29b87b8e714846",
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],
"start": 13994,
"text": "Thereafter on seeing that the deceased was coming alone, he informed other accused over phone."
}
},
{
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"id": "458ddcd85aad4e8aa8c89919911f8cff",
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],
"start": 14089,
"text": "Accordingly, the phone used by this accused Harish was seized."
}
},
{
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"id": "73fe405c21874265b6da0b7af1ad37f9",
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"end": 14212,
"labels": [
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],
"start": 14152,
"text": "Accused-1 to 3 were arrested and subjected to investigation."
}
},
{
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"id": "bdb646f05e0c43529ec1f721cc1eaa7b",
"to_name": "text",
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"value": {
"end": 14382,
"labels": [
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],
"start": 14213,
"text": "It revealed that, there was past ill will between the deceased and the accused with regard to a land and they conspired together to murder the deceased and murdered him."
}
},
{
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"id": "6f53102ac50f4afb8eed781fbb4432ff",
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"value": {
"end": 14441,
"labels": [
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],
"start": 14383,
"text": "The clothes of the accused Chandrashekar have been seized."
}
},
{
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"id": "7b98c6210af1467baad09baa00937bf2",
"to_name": "text",
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"value": {
"end": 14504,
"labels": [
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],
"start": 14442,
"text": "There are grave nature of allegations against the Petitioners."
}
},
{
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"id": "26311cc171924528a7ac407e3c0215dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 14614,
"labels": [
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],
"start": 14504,
"text": "\nThe alleged offence punishable under Section 302 of the I.P.C. is punishable with death or life imprisonment."
}
},
{
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"id": "3b2d6b908c2a4e738cfa348258b26bcc",
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"type": "labels",
"value": {
"end": 14650,
"labels": [
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],
"start": 14615,
"text": "Investigation is not yet completed."
}
},
{
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"id": "f37b81e8f9a14fa09cd54226b1ad064f",
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"type": "labels",
"value": {
"end": 14705,
"labels": [
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],
"start": 14651,
"text": "Statements of important witnesses have to be recorded."
}
},
{
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"id": "61e70725f4c74eaa90c2c18818aa0534",
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"type": "labels",
"value": {
"end": 14790,
"labels": [
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],
"start": 14706,
"text": "The Petitioners/accused are financially well of and politically influential persons."
}
},
{
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"id": "5fa836fe62b143e5ba3b909e1f655f0f",
"to_name": "text",
"type": "labels",
"value": {
"end": 14967,
"labels": [
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],
"start": 14791,
"text": "If they are released, they may tamper with the prosecution witnesses, cause threat to the life of the Complainant and witnesses, abscond and hamper the investigation and trial."
}
},
{
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"id": "7f05c6b0aaba4cc580dac7b544666def",
"to_name": "text",
"type": "labels",
"value": {
"end": 15052,
"labels": [
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],
"start": 14967,
"text": "\nThere is a dispute between the accused and the Complainant in respect of a property."
}
},
{
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"id": "52c873d4d5f041f9900f2746bc68396e",
"to_name": "text",
"type": "labels",
"value": {
"end": 15318,
"labels": [
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],
"start": 15053,
"text": "A case has been registered at Crime No.262/2012 for the offence punishable under Section 307 of the I.P.C. and other offences and another case has been registered in Crime No.131/2012 for the offences under Sections 506, 307 of the I.P.C. along with other offences."
}
},
{
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"id": "8ed134791bd049ae9633e28e9a9d22c0",
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"type": "labels",
"value": {
"end": 15371,
"labels": [
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],
"start": 15319,
"text": "They are pending for consideration before the Court."
}
},
{
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"id": "3a72f67b241740449d8582933874bc49",
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"type": "labels",
"value": {
"end": 15446,
"labels": [
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],
"start": 15372,
"text": "So the learned Public Prosecutor prayed to dismiss all the bail petitions."
}
},
{
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"id": "d798053153254da09bf9c09214ce002c",
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"type": "labels",
"value": {
"end": 15744,
"labels": [
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],
"start": 15446,
"text": "\n 15. The learned counsel for the Petitioners has relied upon the following decisions reported in (1) 2014 (3) KCCR 1900 (2) 2011 (4) KCCR 3091 (3) 2010(1) Crimes 13 (Kar.) 10 (4) Unreported decision passed by the Hon'ble High Court of Karnataka in Criminal Petition No.4477/2011 dated 14-09- 2011."
}
},
{
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"id": "37f9c77d6d474c76832e6504bee01eb5",
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"value": {
"end": 15868,
"labels": [
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],
"start": 15744,
"text": "\n (5) Unreported decision passed by the Hon'ble High Court of Karnataka in Criminal Petition No.7745/2013 dated 06-03- 2014."
}
},
{
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"id": "9ba627dc758041159959116ae8a80ee0",
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"value": {
"end": 15892,
"labels": [
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],
"start": 15868,
"text": "\n (6) 2010(1) Crimes 554"
}
},
{
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"id": "c82e68bcdaa245c7b3e5580657d0db89",
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"type": "labels",
"value": {
"end": 16006,
"labels": [
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],
"start": 15893,
"text": "I have gone through the principles laid down in the said decisions while disposing of the present bail petitions."
}
},
{
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"id": "39e35a18ab58456cad1c87641bd14d99",
"to_name": "text",
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"value": {
"end": 16056,
"labels": [
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],
"start": 16008,
"text": "16. I have gone through the records of the case."
}
},
{
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"id": "ffedd869e43c418bb360cd0e091907e5",
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"type": "labels",
"value": {
"end": 16287,
"labels": [
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],
"start": 16057,
"text": "On perusal of the written complaint of the Complainant, it goes to show that accused-1 to 9 including several Petitioners of these petitions have murdered K.S.Mahadevappa by firing a bullet at him and assaulted him with a chopper."
}
},
{
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"id": "7ef80718075f4f73b893ce6ab126f446",
"to_name": "text",
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"value": {
"end": 16377,
"labels": [
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],
"start": 16288,
"text": "There was a past ill will between the deceased and accused persons with regard to a land."
}
},
{
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"id": "4e3022edc2b6481eb200ebccb162cab7",
"to_name": "text",
"type": "labels",
"value": {
"end": 16501,
"labels": [
"ANALYSIS"
],
"start": 16378,
"text": "Some of the accused persons of the present case had earlier attempted to murder the deceased K.S.Mahadevappa for two times."
}
},
{
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"id": "0d3039f6c2e44f13b7304d1fdf962076",
"to_name": "text",
"type": "labels",
"value": {
"end": 16787,
"labels": [
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],
"start": 16502,
"text": "Accordingly, a case was registered in Crime No.131/2012 for the offence punishable under Section 307 of the I.P.C. and other I.P.C. offences and another case was registered in Crime No.262/2012 for the offence punishable under Section 307 of the I.P.C. including other I.P.C. offences."
}
},
{
"from_name": "label",
"id": "d7c0cb8d49524bfbae6be4ed4ba21629",
"to_name": "text",
"type": "labels",
"value": {
"end": 17052,
"labels": [
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],
"start": 16787,
"text": "\nSubsequently, after investigation, in the said two crime cases, charge sheets have been filed and cases have been registered against the accused persons at S.C.No.184/2014 and at S.C.No.113/2014 and they are pending before the Fast Track Court at Hunsur for trial."
}
},
{
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"id": "60f8cf3d905f4a0fa6d921cd5a70048b",
"to_name": "text",
"type": "labels",
"value": {
"end": 17260,
"labels": [
"ANALYSIS"
],
"start": 17053,
"text": "In the instant cases, the accused have made a third attempt to murder K.S.Mahadevappa and finally they have succeeded in murdering K.S.Mahadevappa by firing a bullet at him and assaulting him with a Chopper."
}
},
{
"from_name": "label",
"id": "111026c55e09415896d83389426392dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 17463,
"labels": [
"ANALYSIS"
],
"start": 17261,
"text": "The written complaint of the 11 Crl.Mis.Nos.1857,1817,1869 & 1910/14 Complainant reveals that, one Santhosh, sister's son of the Complainant aged 12 years is an eye witness to the incident in question."
}
},
{
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"id": "7822f0ff989e426fa06972b63a9911fe",
"to_name": "text",
"type": "labels",
"value": {
"end": 17785,
"labels": [
"ANALYSIS"
],
"start": 17464,
"text": "The written complaint of the Complainant also reveals that the Complainant, his wife Shilpa, Sannappa and one Parashuram have seen accused-1 to 9 named in the FIR and written complaint while they were running away from the place of incident after committing the alleged offences by holding Chopper and Gun in their hands."
}
},
{
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"id": "91db8c104b724e76ac587d13e62320bc",
"to_name": "text",
"type": "labels",
"value": {
"end": 18086,
"labels": [
"ANALYSIS"
],
"start": 17786,
"text": "The learned counsel for the Petitioners submits that, according to Remand Applications filed, it does not reveal that, Santosh is an eye witness to the incident and Complainant and others have seen the accused persons while they were running away from the place of incident along with deadly weapons."
}
},
{
"from_name": "label",
"id": "df011ea89a9d4230a25adc8fd80efbd0",
"to_name": "text",
"type": "labels",
"value": {
"end": 18150,
"labels": [
"ANALYSIS"
],
"start": 18087,
"text": "I am of the opinion that the case is still under investigation."
}
},
{
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"id": "6adda1892361469b96a5ee83a42dced3",
"to_name": "text",
"type": "labels",
"value": {
"end": 18262,
"labels": [
"ANALYSIS"
],
"start": 18151,
"text": "At this stage, I have no reasons to disbelieve the averments of the written complaint filed by the Complainant."
}
},
{
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"id": "193369b4b40840d6ba9e5b8ae0c2c3f6",
"to_name": "text",
"type": "labels",
"value": {
"end": 18487,
"labels": [
"ANALYSIS"
],
"start": 18263,
"text": "The records reveals that accused No.14 who is the Petitioner of Crl.Mis.No.1817/2014 and accused No.13 who is the Petitioner No.2 of Crl.Mis.No.1910/2014 are the members of criminal conspiracy to commit the alleged offences."
}
},
{
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"id": "96e0d8bbeab7464ba01eb672d5a1bf88",
"to_name": "text",
"type": "labels",
"value": {
"end": 18611,
"labels": [
"ANALYSIS"
],
"start": 18488,
"text": "In the instant case, the material objects have been seized by the Investigating Officer at the instance of accused persons."
}
},
{
"from_name": "label",
"id": "1dd872a368fb4c44811f970b952bf50b",
"to_name": "text",
"type": "labels",
"value": {
"end": 18799,
"labels": [
"ANALYSIS"
],
"start": 18612,
"text": "The Chopper used to commit the offences at the time of commission of the offences has been recovered at the instance of accused No.14-Shivannegowda of Crl.Mis.No.1817/2014 from his house."
}
},
{
"from_name": "label",
"id": "d71fe0e22c014145ad67debf069b91fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 19288,
"labels": [
"ANALYSIS"
],
"start": 18800,
"text": "Considering the material on record, it clearly establishes that the accused with an intention to destroy the evidence in order to escape from the criminal liability in S.C.No.184/2014 and S.C.No.113/2014 pending on the file of Fast Track Court at Hunsur where the accused had attempted to murder deceased K.S.Mahadevappa earlier for two times have murdered said K.S.Mahadevappa in this case in their third attempt on account of 12 past ill will existed between them with regard to a land."
}
},
{
"from_name": "label",
"id": "e939f5a27f9c4a17abe011520879290f",
"to_name": "text",
"type": "labels",
"value": {
"end": 19515,
"labels": [
"ANALYSIS"
],
"start": 19289,
"text": "There are sufficient material on record for the involvement of the Petitioners/accused in committing the grave and serious offence punishable under Section 302 of the I.P.C. which is punishable with death or life imprisonment."
}
},
{
"from_name": "label",
"id": "c6b64eb44cde43b1b93a4c9bc88a4f62",
"to_name": "text",
"type": "labels",
"value": {
"end": 19648,
"labels": [
"ANALYSIS"
],
"start": 19516,
"text": "Under the circumstances, I am of the opinion that the Petitioners are not entitled to be granted regular bail as prayed for by them."
}
},
{
"from_name": "label",
"id": "368601254b79446e96f2b66f34dd7611",
"to_name": "text",
"type": "labels",
"value": {
"end": 19814,
"labels": [
"ANALYSIS"
],
"start": 19649,
"text": " The Petitioners-1 and 2 of Crl.Mis.No.1857/2014 have prayed to grant them anticipatory bail apprehending their arrest by the Respondent/police in the present crime."
}
},
{
"from_name": "label",
"id": "9caa7b6b96ae4b97b3cbb918affb75f3",
"to_name": "text",
"type": "labels",
"value": {
"end": 19961,
"labels": [
"ANALYSIS"
],
"start": 19815,
"text": "Admittedly the anticipatory bail has to be granted to the Petitioners who apprehends their arrest in a crime pertaining to non- bailable offences."
}
},
{
"from_name": "label",
"id": "be8383786ff54c2fb42cfe13022beef8",
"to_name": "text",
"type": "labels",
"value": {
"end": 20156,
"labels": [
"ANALYSIS"
],
"start": 19962,
"text": "In the instant case, admittedly, the names of the Petitioners of Crl.Mis.No.1857/2014 are not found place either in the complaint or in the FIR or in any of the material placed before the Court."
}
},
{
"from_name": "label",
"id": "ee16ddbd67d1406c98c94abec38a1174",
"to_name": "text",
"type": "labels",
"value": {
"end": 20308,
"labels": [
"ARG_RESPONDENT"
],
"start": 20157,
"text": "The learned Public Prosecutor submits that these Petitioners of Crl.Mis.No.1857/2014 are not at all involved in the commission of the alleged offences."
}
},
{
"from_name": "label",
"id": "3d79ae0ff0a9498a9ccb5b8aee78eae9",
"to_name": "text",
"type": "labels",
"value": {
"end": 20345,
"labels": [
"ARG_RESPONDENT"
],
"start": 20309,
"text": "They are not required by the police."
}
},
{
"from_name": "label",
"id": "5220b7fc97054f8988efa100e5b10770",
"to_name": "text",
"type": "labels",
"value": {
"end": 20392,
"labels": [
"ARG_RESPONDENT"
],
"start": 20346,
"text": "They are not connected with the present crime."
}
},
{
"from_name": "label",
"id": "daee33fd04f94107838ef56925ce6d37",
"to_name": "text",
"type": "labels",
"value": {
"end": 20622,
"labels": [
"RATIO"
],
"start": 20393,
"text": "When such being the facts and circumstances of the case, I am of the opinion that the apprehension of these Petitioners of Crl.Mis.No.1857/2014 in this crime that they may be arrested by the Respondent/police is not well founded."
}
},
{
"from_name": "label",
"id": "83a0311443e94cc3ae1f9fa3f9323ad1",
"to_name": "text",
"type": "labels",
"value": {
"end": 20757,
"labels": [
"RATIO"
],
"start": 20623,
"text": "So, I am of the opinion that they are not entitled for anticipatory bail, as admittedly they are not connected with the present crime."
}
},
{
"from_name": "label",
"id": "148e8439c7a2423c97210f1c6d1c84a4",
"to_name": "text",
"type": "labels",
"value": {
"end": 20953,
"labels": [
"RATIO"
],
"start": 20758,
"text": "So far as the case relating to other Petitioners are concerned, there are sufficient material on record for having committed grave and serious nature of offence for murdering one K.S.Mahadevappa."
}
},
{
"from_name": "label",
"id": "e35ba2edb70449f0a82962a9014a9023",
"to_name": "text",
"type": "labels",
"value": {
"end": 21362,
"labels": [
"RATIO"
],
"start": 20954,
"text": "Considering the facts and circumstances of the case under which the Petitioners/accused have committed the murder of K.S.Mahadevappa, I feel, if the Petitioners/accused are released on 13 Crl.Mis.Nos.1857,1817,1869 & 1910/14 bail, they may commit similar type of offences, tamper with the prosecution witnesses, prevent the witnesses from deposing true facts, abscond and hamper the investigation and trial."
}
},
{
"from_name": "label",
"id": "a015b684c0ac45ed8dd8fed1b53df854",
"to_name": "text",
"type": "labels",
"value": {
"end": 21494,
"labels": [
"RATIO"
],
"start": 21363,
"text": "So, this is not a fit case to grant bail to the Petitioners of Crl.Mis.No.1817/2014, Crl.Mis.No.1869/2014 and Crl.Mis.No.1910/2014."
}
},
{
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"id": "f6e9f0d98601474a857f311ecf7d0f74",
"to_name": "text",
"type": "labels",
"value": {
"end": 21633,
"labels": [
"RATIO"
],
"start": 21495,
"text": "The principles laid down in the aforesaid decisions relied on by the learned counsel for the Petitioners will not help to grant them bail."
}
},
{
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"id": "0e25ec5483aa417e9f3998344e056043",
"to_name": "text",
"type": "labels",
"value": {
"end": 21690,
"labels": [
"RPC"
],
"start": 21634,
"text": "Accordingly, I answer Point Nos.1 and 2 in the Negative."
}
},
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"start": 21690,
"text": "\n Point No.3:- 17."
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"text": "In the result, I proceed to pass the following:"
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"text": ":: COMMON ORDER ::"
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"text": "The bail petition filed by the petitioners of Crl.Mis.No.1857/2014 under Section 438 of the Cr.P.C. is hereby dismissed."
}
},
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"text": "\n The bail Petitions filed by the Petitioners of Crl.Mis.No.1817/2014, Crl.Mis.No.1869/2014 and Crl.Mis.No.1910/204 under Section 439 of the Cr.P.C.\nare hereby dismissed."
}
},
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"end": 22374,
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"start": 22068,
"text": "The Original Order shall be placed in Crl.Mis.No.1857/2014 and a copy thereof in Crl.Mis.No.1817/2014, Crl.Mis.No.1869/2014 and Crl.Mis.No.1910/2014.\n (Dictated to the Judgment Writer, the transcript revised, corrected, signed and then pronounced by me in open court on this the 25th day of November, 2014)"
}
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"text": "(Suresh S Kogilgeri)"
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"text": "III Addl.Sessions Judge Mysore."
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"text": "\n 14 Order pronounced in open court (vide separate order)"
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"text": ":: COMMON ORDER ::"
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"text": "The bail petition filed by the petitioners of Crl.Mis.No.1857/2014 under Section 438 of the Cr.P.C. is hereby dismissed."
}
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"text": "The bail Petitions filed by the Petitioners of Crl.Mis.No.1817/2014, Crl.Mis.No.1869/2014 and Crl.Mis.No.1910/204 under Section 439 of the Cr.P.C. are hereby dismissed."
}
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"text": "\n The Original Order shall be placed in Crl.Mis.No.1857/2014 and a copy thereof in Crl.Mis.No.1817/2014, Crl.Mis.No.1869/2014 and Crl.Mis.No.1910/2014."
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"text": "\n III Addl.Sessions Judge Mysore."
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"text": "\n .\n 15 Crl.Mis.Nos.1857,1817,1869 &"
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] | 1,779 | {
"text": "IN THE COURT OF THE III ADDITIONAL SESSIONS JUDGE AT\n MYSORE.\n\n Dated this the 25th day of November 2014\n\n Present: Sri. Suresh S Kogilgeri, B.Com., LL.B.(Spl.),\n III Addl. Sessions Judge,\n Mysore.\n\n ::Crl.Mis.No.1857/2014, Crl.Mis.No.1817/2014,\n Crl.Mis.No.1869/2014 & Crl.Mis.No.1910/2014::\n\nPetitioners: : 1. Thammaiah @ Rajegowda, S/o\n Annegowda, aged about 62 years\n(Crl.Mis.No.1857/14)\n 2. Smt.Sheela K., W/o Lakshman\nPetitioner: : Patela @ Lakshmana, aged about\n 25 years\n(Crl.Mis.No.1817/14)\n Both are residing at Kogilavadi\n Village, Kasaba Hobli, Periyapatna\n Taluk, Mysore District.\n\n { By Sri T.Jayaramu, Advocate}\n\n Shivannegowda @ Shiva, S/o\n Thammegowda, 32 years, residing at\n Kogilavadi Village, Periyapatna Taluk,\n Mysore District.\n\n {By Sri V.B.Naik, Advocate}\n\nPetitioners: : 1. Papegowda, S/o Late Rangegowda,\n 65 years\n(C.Mis.No.1869/14)\n 2. Chandrashekar @ Annaiah, S/o\n late Rangegowda, 45 years\n\n 3. Nataraju, S/o Chikkegowda, 47\n years\n\n All are residing at Kovilavadi Village,\n Periyapatna Taluk, Mysore District.\n\n {By Sri C.Appaji Gowda, Advocate}\n\n\n 2\n\nPetitioners: : 1. Prakasha, S/o Chikkanna, aged\n about 44 years, residing at\n(Crl.Mis.No.1910/14) Kogilavadi Village, Periyapatna\n Taluk, Mysore District.\nRespondent :\n(Common in all 2. K.A.Harisha, S/o Appanna, aged\ncases) about 22 years, residing at\n Kogilavadi Village, Periyapatna\n Taluk, Mysore District.\n\n {By Smt.Jyothi Madan Kumar, Adv.}\n\n Vs.\n\n State by Periyapatna Police Station.\n\n { By Public Prosecutor, Mysore }\n\n:: COMMON ORDER ON BAIL PETITIONS FILED UNDER SECTIONS 438 AND 439 OF THE CR.P.C. :: Crl.Mis.No.1857/2014 is filed by petitioners under Section 438 of the Cr.P.C. praying to grant them Anticipatory Bail in Crime No.260/2014 registered by the respondent police for the offences punishable under Sections 143, 144, 147, 148, 341, 302, 149 of the I.P.C. and under Sections 3, 24 and 25 of Arms Act, 1959.\n Crl.Mis.No.1817/2014, Crl.Mis.No.1869/2014 and Crl.Mis.No.1910/2014 are filed by the petitioners under Section 439 of the Cr.P.C. praying to grant them regular bail in Crime No.260/2014 registered by the respondent police for the offences punishable under Sections 143, 144, 147, 148, 341, 302, 149 of the I.P.C. and under Sections 3, 24 and 25 of Arms Act, 1959.\n 2. On the other hand, the learned Public Prosecutor has resisted the aforesaid bail petitions of the petitioners in all the 4 cases by filing his separate objections and prayed to dismiss the same.\n 3 Crl.Mis.Nos.1857,1817,1869 & 1910/14 3. Since all the petitions have arisen out of the same Crime Number, all the 4 cases are clubbed and I proceed to pass common order in Crl.Mis.No.1857/2014 by clubbing Crl.Mis.No.1817/2014, Crl.Mis.No.1869/2014 and Crl.Mis.No.1910/2014.\n 4. Heard the arguments of both the sides.\n 5. At this stage, the following Points have arisen for my determination: 1. Whether the petitioners in Crl.Mis.No.1857/2014 are entitled to be granted anticipatory bail under Section 438 of the Cr.P.C.?\n 2. Whether the petitioners in Crl.Mis.No.1817/2014, Crl.Mis.No.1869/2014 and Crl.Mis.No.1910/2014 are entitled to be granted regular bail under Section 439 of the Cr.P.C.?\n 3. What Order?\n 6. My findings on the aforesaid Points are held as under: Point No.1 : In the Negative Point No.2 : In the Negative Point No.3 : As per my final order below, for the following: : R e a s o n s : Points-1 and 2:- 7. Perused the petitions, FIR, written complaint, C.D. and other materials placed before me. They reveal that, on 27-09-2014 at 6.00 p.m., the Complainant was returning to home by walk. On the way, near the land of one Rajeshekar and Thammegowda, his brother by name K.S.Mahadeva was murdered by accused-1 to 9 named in the 4 written complaint and FIR. Said accused had murdered Mahadeva by firing a bullet at him and also by assaulting him with a chopper.\nThere was a land dispute between the deceased, Complainant on one side and accused persons on another side. Earlier to this incident, the accused had attempted to kill the Complainant for two times and two separate cases were registered against them for the offence punishable under Section 307 of the I.P.C. The said cases are pending for consideration before FTC, Hunsur. Since they had a threat to their lives, they had prayed for providing a Gunman to them. Inspite of it, police did not provided the security to them. The accused in order to destroy the evidence have murdered his brother Mahadeva. He is also a witness in the said two cases registered for the offence punishable under Section 307 of the I.P.C. The accused also have intended to murder him. One Santhosh, son of his sister has witnessed the incident in question and informed the same to the members of the family. Himself, his wife Shilpa, Sannappa, Parashurama have seen accused-1 to 9 referred in the complaint and FIR after the incident while running away by holding Chopper and Gun in their hands. So, on the basis of the complaint filed by the Complainant, the respondent/police have registered a case in Crime No.260/2014 against the accused-1 to 9 for the offences punishable under Sections 143, 144, 147, 148, 341, 302, 149 of I.P.C. and under Sections 3, 24, 25 of Arms act, 1959.\n 8. Petitioners-1 to 3 of Crl.Mis.No.1869/2014 are the accused-1, 3 and 4 named in the complaint and FIR. The Petitioners-1 and 2 of Crl.Mis.No.1910/2014 are accused No.5 named in the FIR and complaint and accused No.13 is named in the Remand Application respectively. The Petitioner of Crl.Mis.No.1817/2014 is the accused 5 Crl.Mis.Nos.1857,1817,1869 & 1910/14 No.14 named in the Remand Application. The names of Petitioners-1 and 2 of Crl.Mis.No.1857/2014 are not appearing either in the written complaint or in the FIR or in the Remand application. All the Petitioners of Crl.Mis.No.1817/2014, 1869/2014 and 1910/2014 are in judicial custody.\n 9. Under the said facts and circumstances of the case, the Petitioners of Crl.Mis.No.1817/2014, 1869/2014 and 1910/2014 have filed separate bail applications under Section 439 of the Cr.P.C.\npraying to gram them regular bail. The Petitioners of Crl.Mis.No.1857/2014 apprehending their arrest by the Respondent/police in the aforesaid crime have filed the bail petition under Section 438 of the Cr.P.C. praying to grant them anticipatory bail.\n 10. It is contended by the Petitioners of Crl.Mis.No.1857/2014 that they are innocents and law abiding citizens. They have not committed the alleged offences. Their names are not found in the FIR. Inspite of it, the Respondent/police are trying to arrest them just to harass and cause inconvenience by detaining them in their illegal custody. The 1st Petitioner is a senior citizen suffering from old age ailments. The 2nd Petitioner is a married woman. They are the permanent residents of Kogilavadi village. They are the agriculturists having landed properties. They have grown crops in their lands. The 1st Petitioner is suffering from ill health. They hail from respectable family. There is no allegation against them in the complaint. They are ready and willing to abide by the terms and conditions that would be imposed by this Court. So they prayed to grant them anticipatory bail.\n 6 11. It is contended by the Petitioner of Crl.Mis.No.1817/2014 that on perusal of the written complaint of the Complainant, it goes to show that the Complainant is not an eye witness to the incident. It further reveals that, one Santhosh is an eye witness to the incident.\nThe wife of the Complainant Shilpa, Sannappa and Parashuram have seen these accused who were running away from that place by holding deadly weapons. The Remand Application dated 15-10-2014 reveals that the statement of Santhosh, Swamy, Parashuram, Shilpashri, Shanthi, Prema and Shankarappa have been recorded and in the said statements, it is stated that the murder has been committed in order to destroy the evidence as the cases pertaining to attempt to commit an offence of murder are put on trial. If the said statements are perused, it goes to show that, Santhosh is not an eye witness to the incident. The witnesses have not seen the accused persons running away from that place. Recording of statement of these witnesses has not been mentioned in the earlier Remand Application. So, it goes to show that a false complaint has been filed on account of past ill will. The Petitioner was the resident of Kogilavadi village. After the marriage, he is staying in B.R.Kaval village, the village of his wife since 4 to 5 years. It is 20 kms away from Kogilavadi village. There is an allegation in the written complaint only against 9 persons. Nowhere it is stated in the complaint that others are also involved in the commission of the offence. His name is included in this case only as he is the friend of accused No.1-Papegowda. The statement of Basavaraju and Ponnappa have been recorded at the time of drawing inquest mahazar. Said witnesses have not stated as to his involvement in the commission of alleged offences. Said inquest mahazar reveals that only 9 persons are involved in the commission of the alleged 7 Crl.Mis.Nos.1857,1817,1869 & 1910/14 offences. He is in judicial custody since 15-10-2014. The records reveals that a chopper and clothes have been seized at the instance of the Petitioner. But the remand report does not reveal that said clothes were blood stained. So also, there is no evidence as to the chopper seized was blood stained. There is no acceptable evidence before this Court to connect the Petitioner in this case. His parents are residing at Kogilavadi village. He used to come to Kogilavadi village often to see his parents. He is residing at B.R.Kaval village along with his wife and children. They are depending upon his earnings. He is an agriculturist by profession. He is the permanent resident of Kogilavadi village having lands and house in the said village. He hails from respectable family. He is ready and willing to abide by the terms and conditions that would be imposed by this Court. So he prayed to grant him regular bail.\n 12. It is contended by the Petitioners of Crl.Mis.No.1869/2014 that, they are innocents of the alleged offences. They hail from respectable families. They are the earning members of their families.\nTheir names are included in this case on account of past ill will. No grave nature of allegations are made against them. There is no evidence as to they were holding deadly weapons in their hands or they used such weapons in the incident in question. On perusal of the statement of witnesses, it creates doubt as to their presence at the time of incident in question. There is no evidence as to their direct involvement in the commission of the incident. The police have stated that the main offenders have been arrested and the weapons used to commit the offences have been recovered. Though the names of the Petitioners are found in the FIR and it is mentioned that they are accused-1, 3 and 4, but there is no evidence on record as to they have committed the alleged offences.\n 8 The Petitioners-1 and 2 are agriculturists. Inspite of it, they were arrested and produced before the Court. The Petitioner No.3 is arrested 20 days ago. They are not required for investigation. There are no grounds to continue them in the judicial custody. The alleged offences are not punishable with death or life imprisonment. They are the permanent residents of Kogilavadi village. They are ready and willing to abide by the terms and conditions that would be imposed by this Court. The Petitioners-1 and 3 are suffering from ill health. So they prayed to grant them regular bail.\n 13. It is contended by the Petitioners of Crl.Mis.No.1910/2014 that they are innocents of the alleged offences and they are law abiding citizens. There is no prima facie case against them. The 2nd Petitioner's name is not forthcoming in the FIR. They are respectable persons in the society. There is no dispute between them and the deceased person in any manner They are having movable and immovable properties in their names. There is no prima facie case against them. They are the only earning members of their families.\nThe Petitioner No.1 is having a small kid. 2nd Petitioner is a young boy. They are ready and willing to abide by the terms and conditions that would be imposed by this Court. So they prayed to grant them regular bail.\n 14. On the other hand, it is the case of the prosecution that, there is a prima facie case against the Petitioners of all the cases for having committed the alleged offences. The statements of witnesses have been recorded. The material objects have been seized. The deadly weapons-Chopper, Gun etc., have been seized at the instance of accused persons. Petitioner No.2 Harish of Crl.Mis.No.1910/2014 was arrested and subjected to investigation. He revealed that he 9 Crl.Mis.Nos.1857,1817,1869 & 1910/14 made criminal conspiracy with other accused persons to murder the deceased Mahadeva. Thereafter on seeing that the deceased was coming alone, he informed other accused over phone. Accordingly, the phone used by this accused Harish was seized. Accused-1 to 3 were arrested and subjected to investigation. It revealed that, there was past ill will between the deceased and the accused with regard to a land and they conspired together to murder the deceased and murdered him. The clothes of the accused Chandrashekar have been seized. There are grave nature of allegations against the Petitioners.\nThe alleged offence punishable under Section 302 of the I.P.C. is punishable with death or life imprisonment. Investigation is not yet completed. Statements of important witnesses have to be recorded.\nThe Petitioners/accused are financially well of and politically influential persons. If they are released, they may tamper with the prosecution witnesses, cause threat to the life of the Complainant and witnesses, abscond and hamper the investigation and trial.\nThere is a dispute between the accused and the Complainant in respect of a property. A case has been registered at Crime No.262/2012 for the offence punishable under Section 307 of the I.P.C. and other offences and another case has been registered in Crime No.131/2012 for the offences under Sections 506, 307 of the I.P.C. along with other offences. They are pending for consideration before the Court. So the learned Public Prosecutor prayed to dismiss all the bail petitions.\n 15. The learned counsel for the Petitioners has relied upon the following decisions reported in (1) 2014 (3) KCCR 1900 (2) 2011 (4) KCCR 3091 (3) 2010(1) Crimes 13 (Kar.) 10 (4) Unreported decision passed by the Hon'ble High Court of Karnataka in Criminal Petition No.4477/2011 dated 14-09- 2011.\n (5) Unreported decision passed by the Hon'ble High Court of Karnataka in Criminal Petition No.7745/2013 dated 06-03- 2014.\n (6) 2010(1) Crimes 554 I have gone through the principles laid down in the said decisions while disposing of the present bail petitions.\n 16. I have gone through the records of the case. On perusal of the written complaint of the Complainant, it goes to show that accused-1 to 9 including several Petitioners of these petitions have murdered K.S.Mahadevappa by firing a bullet at him and assaulted him with a chopper. There was a past ill will between the deceased and accused persons with regard to a land. Some of the accused persons of the present case had earlier attempted to murder the deceased K.S.Mahadevappa for two times. Accordingly, a case was registered in Crime No.131/2012 for the offence punishable under Section 307 of the I.P.C. and other I.P.C. offences and another case was registered in Crime No.262/2012 for the offence punishable under Section 307 of the I.P.C. including other I.P.C. offences.\nSubsequently, after investigation, in the said two crime cases, charge sheets have been filed and cases have been registered against the accused persons at S.C.No.184/2014 and at S.C.No.113/2014 and they are pending before the Fast Track Court at Hunsur for trial. In the instant cases, the accused have made a third attempt to murder K.S.Mahadevappa and finally they have succeeded in murdering K.S.Mahadevappa by firing a bullet at him and assaulting him with a Chopper. The written complaint of the 11 Crl.Mis.Nos.1857,1817,1869 & 1910/14 Complainant reveals that, one Santhosh, sister's son of the Complainant aged 12 years is an eye witness to the incident in question. The written complaint of the Complainant also reveals that the Complainant, his wife Shilpa, Sannappa and one Parashuram have seen accused-1 to 9 named in the FIR and written complaint while they were running away from the place of incident after committing the alleged offences by holding Chopper and Gun in their hands. The learned counsel for the Petitioners submits that, according to Remand Applications filed, it does not reveal that, Santosh is an eye witness to the incident and Complainant and others have seen the accused persons while they were running away from the place of incident along with deadly weapons. I am of the opinion that the case is still under investigation. At this stage, I have no reasons to disbelieve the averments of the written complaint filed by the Complainant. The records reveals that accused No.14 who is the Petitioner of Crl.Mis.No.1817/2014 and accused No.13 who is the Petitioner No.2 of Crl.Mis.No.1910/2014 are the members of criminal conspiracy to commit the alleged offences. In the instant case, the material objects have been seized by the Investigating Officer at the instance of accused persons. The Chopper used to commit the offences at the time of commission of the offences has been recovered at the instance of accused No.14-Shivannegowda of Crl.Mis.No.1817/2014 from his house. Considering the material on record, it clearly establishes that the accused with an intention to destroy the evidence in order to escape from the criminal liability in S.C.No.184/2014 and S.C.No.113/2014 pending on the file of Fast Track Court at Hunsur where the accused had attempted to murder deceased K.S.Mahadevappa earlier for two times have murdered said K.S.Mahadevappa in this case in their third attempt on account of 12 past ill will existed between them with regard to a land. There are sufficient material on record for the involvement of the Petitioners/accused in committing the grave and serious offence punishable under Section 302 of the I.P.C. which is punishable with death or life imprisonment. Under the circumstances, I am of the opinion that the Petitioners are not entitled to be granted regular bail as prayed for by them. The Petitioners-1 and 2 of Crl.Mis.No.1857/2014 have prayed to grant them anticipatory bail apprehending their arrest by the Respondent/police in the present crime. Admittedly the anticipatory bail has to be granted to the Petitioners who apprehends their arrest in a crime pertaining to non- bailable offences. In the instant case, admittedly, the names of the Petitioners of Crl.Mis.No.1857/2014 are not found place either in the complaint or in the FIR or in any of the material placed before the Court. The learned Public Prosecutor submits that these Petitioners of Crl.Mis.No.1857/2014 are not at all involved in the commission of the alleged offences. They are not required by the police. They are not connected with the present crime. When such being the facts and circumstances of the case, I am of the opinion that the apprehension of these Petitioners of Crl.Mis.No.1857/2014 in this crime that they may be arrested by the Respondent/police is not well founded. So, I am of the opinion that they are not entitled for anticipatory bail, as admittedly they are not connected with the present crime. So far as the case relating to other Petitioners are concerned, there are sufficient material on record for having committed grave and serious nature of offence for murdering one K.S.Mahadevappa. Considering the facts and circumstances of the case under which the Petitioners/accused have committed the murder of K.S.Mahadevappa, I feel, if the Petitioners/accused are released on 13 Crl.Mis.Nos.1857,1817,1869 & 1910/14 bail, they may commit similar type of offences, tamper with the prosecution witnesses, prevent the witnesses from deposing true facts, abscond and hamper the investigation and trial. So, this is not a fit case to grant bail to the Petitioners of Crl.Mis.No.1817/2014, Crl.Mis.No.1869/2014 and Crl.Mis.No.1910/2014. The principles laid down in the aforesaid decisions relied on by the learned counsel for the Petitioners will not help to grant them bail. Accordingly, I answer Point Nos.1 and 2 in the Negative.\n Point No.3:- 17. In the result, I proceed to pass the following: :: COMMON ORDER :: The bail petition filed by the petitioners of Crl.Mis.No.1857/2014 under Section 438 of the Cr.P.C. is hereby dismissed.\n The bail Petitions filed by the Petitioners of Crl.Mis.No.1817/2014, Crl.Mis.No.1869/2014 and Crl.Mis.No.1910/204 under Section 439 of the Cr.P.C.\nare hereby dismissed.\n The Original Order shall be placed in Crl.Mis.No.1857/2014 and a copy thereof in Crl.Mis.No.1817/2014, Crl.Mis.No.1869/2014 and Crl.Mis.No.1910/2014.\n (Dictated to the Judgment Writer, the transcript revised, corrected, signed and then pronounced by me in open court on this the 25th day of November, 2014) (Suresh S Kogilgeri) III Addl.Sessions Judge Mysore.\n 14 Order pronounced in open court (vide separate order) :: COMMON ORDER :: The bail petition filed by the petitioners of Crl.Mis.No.1857/2014 under Section 438 of the Cr.P.C. is hereby dismissed.\n The bail Petitions filed by the Petitioners of Crl.Mis.No.1817/2014, Crl.Mis.No.1869/2014 and Crl.Mis.No.1910/204 under Section 439 of the Cr.P.C. are hereby dismissed.\n The Original Order shall be placed in Crl.Mis.No.1857/2014 and a copy thereof in Crl.Mis.No.1817/2014, Crl.Mis.No.1869/2014 and Crl.Mis.No.1910/2014.\n III Addl.Sessions Judge Mysore.\n .\n 15 Crl.Mis.Nos.1857,1817,1869 & "
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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": "\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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}
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"text": "WRIT PETITION NO.1111 OF 2007"
}
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"text": "M/s.Sweta Enterprises."
}
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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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"text": "M/s.Kenlott Gaming Solutions"
}
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"text": "\nPvt.Ltd."
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{
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"end": 1220,
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"text": "\n\nvs.\n\n1.The Commissioner of Small Savings\n\n& Lotteries & others."
}
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{
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"text": "...Respondents."
}
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"text": "AND\n\n "
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"text": "WRIT PETITION NO.1127 OF 2007"
}
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"text": "M/s.Tashi Delek Gaming Solutions"
}
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"text": "vs.\n\n1.The Commissioner of Small Savings\n\n& Lotteries & others."
}
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}
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"text": "AND\n\n WRIT PETITION NO.425 OF 2009"
}
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"text": "M/s.Shree Enterprises"
}
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"text": "...Petitioner."
}
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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 AND\n\n WRIT PETITION NO.436 OF 2009\n\nPradeep Lunkad. ..."
}
},
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}
},
{
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"end": 1947,
"labels": [
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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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"end": 2020,
"labels": [
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],
"start": 1992,
"text": "WRIT PETITION NO.444 OF 2009"
}
},
{
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],
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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": "...Respondents."
}
},
{
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"start": 2160,
"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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"id": "cb7f8286cf7649bfbb970cc02b2952d9",
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"type": null,
"value": {
"end": 2429,
"labels": [
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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": "2d5f05601d7e4ec38e2dfc390efe154c",
"to_name": null,
"type": null,
"value": {
"end": 2505,
"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": "1324a00219e7489596f6ddc1956c080c",
"to_name": null,
"type": null,
"value": {
"end": 2585,
"labels": [
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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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"id": "fea15dc6e29447d4b5d02fffb8cd502c",
"to_name": null,
"type": null,
"value": {
"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": "4b7928e7ff3747b3950267d86d224b1f",
"to_name": null,
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"value": {
"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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"id": "08ad8930c1014653b08b56d3dd499f81",
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"value": {
"end": 2888,
"labels": [
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],
"start": 2873,
"text": "---\n\n\n "
}
},
{
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"id": "ffa7657a5c884189bf65d690f3502c20",
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"value": {
"end": 2947,
"labels": [
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],
"start": 2888,
"text": "CORAM: D.K.DESHMUKH &\n R.S.MOHITE, JJ."
}
},
{
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"id": "02561e745e904b48bb2272d1ca388dcd",
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"value": {
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"labels": [
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],
"start": 2958,
"text": "DATED: 14th August,2009."
}
},
{
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"id": "775a68a37cca4480b468b773f33adbf8",
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"value": {
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"labels": [
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],
"start": 2982,
"text": "\n\nJUDGMENT:"
}
},
{
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"type": null,
"value": {
"end": 3016,
"labels": [
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],
"start": 2993,
"text": " (PER D.K.DESHMUKH, J) "
}
},
{
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"id": "3bb9fe48652548379a29f02237f2c51e",
"to_name": null,
"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": "1bd858507db64dcc8b22c04d3caa046d",
"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."
}
},
{
"from_name": null,
"id": "40d99ed949494063a502cfce8e0f871e",
"to_name": null,
"type": null,
"value": {
"end": 3496,
"labels": [
"FAC"
],
"start": 3401,
"text": "The Respondent-State Government is also organizing, conducting and promoting its own lotteries."
}
},
{
"from_name": null,
"id": "c3768f7a6e69427d85a2f5a323185792",
"to_name": null,
"type": null,
"value": {
"end": 3698,
"labels": [
"FAC"
],
"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."
}
},
{
"from_name": null,
"id": "44662814a20445bf913cd7bba3085ef9",
"to_name": null,
"type": null,
"value": {
"end": 3943,
"labels": [
"FAC"
],
"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."
}
},
{
"from_name": null,
"id": "89cd226777c140f2a2650a9593d04c51",
"to_name": null,
"type": null,
"value": {
"end": 4277,
"labels": [
"ARG_PETITIONER"
],
"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."
}
},
{
"from_name": null,
"id": "3b4ded60e87b4f918bba2f6d5219a6ec",
"to_name": null,
"type": null,
"value": {
"end": 4454,
"labels": [
"ARG_PETITIONER"
],
"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": "c42326ec78aa41a4b43e9e42e7098c67",
"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": "ecbc7c74e0974a03b80cf40c71769c8b",
"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": "10f2abc35e284404b18090771ba41825",
"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": "944d364b5a404001875e558d871750e1",
"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": "d9bd7128ef1c4f42aa00c204207c0b67",
"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": "e6242c802fd443fcb58eb67c6ca81e5b",
"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": "1c29132f35864388944d815c6e7f718c",
"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": "c5bffbca8cd34932866ae094374524c8",
"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": "ca677d2ffe5b450b8383aa4565893253",
"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": "5edec7b84b1d4bfaa0b35fffa0ee4ad4",
"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": "594d4396c2a741d48de756c6ffb02b2f",
"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": "850459ee654c4515bac0cf9139e6d31f",
"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": "b3bbe0f6adba4209b8fc54a16caeba05",
"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": "888e60cb3bbe41b4bf76ae9ea87f4b66",
"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": "43366c08f7bf4158be35f0a6818aa6e2",
"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": "5f7618a7891e4de1990ec31d1a77c690",
"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": "749806721bd7407db311efc22adf1aab",
"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": "3d42a8becb404dde9338cce30c2a5956",
"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": "105c9e96642b45c4b8a6f177c968609c",
"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": "b4b6d4dca61d4e9aa79cbee7df33afa8",
"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": "6ebde802528848fdb8ec0d997ee326a7",
"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": "1ee6a4d3d0fe4278a5f78698ea0faa91",
"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": "5862d4816aa44700853d2e6e2836f517",
"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": "4353200799f8444c89a042bfccd49c42",
"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": "0439b8a9c37846bcb377a383c60bebb8",
"to_name": null,
"type": null,
"value": {
"end": 10313,
"labels": [
"ANALYSIS"
],
"start": 10307,
"text": "\n 9. "
}
},
{
"from_name": null,
"id": "8ba41d72d45e4ffcac2cccfdb7f39241",
"to_name": null,
"type": null,
"value": {
"end": 10552,
"labels": [
"ANALYSIS"
],
"start": 10313,
"text": "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": "e34c368c2398464fa5103a26e9c54c83",
"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": "61fc0d178a494a06be1b3b8024a4a26b",
"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": "1de14e2387f841948af31114410835ff",
"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": "6aa75a8f4d494a8a8774c41f289d1a64",
"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": "b6189491012b4231bcb447f0f77b3631",
"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": "fc361706373c4a21ae733dd48fcf1f70",
"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": "c06a6658970f49c6af28ee93e4080403",
"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": "57ae0a2d2b9648faa9929d7e9c9496a6",
"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": "1826e17c82234f929d631b2fd5c75c49",
"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": "9c1d04743b454646ae81ea4aa7d62c73",
"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": "52360f84a37d44119ddcb8597f073ca0",
"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": "6d69b69c6fb544b1b25de4c8827d8805",
"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": "2364952cb6b1448fa94ae122d29a172f",
"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": "2cc10443afd54744b628b80f055887de",
"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": "c0653b887c1e42f0a7ec2decf9ae3d69",
"to_name": null,
"type": null,
"value": {
"end": 13573,
"labels": [
"STA"
],
"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": "a57a20f6ba274a6c875198b93561f68a",
"to_name": null,
"type": null,
"value": {
"end": 13631,
"labels": [
"ANALYSIS"
],
"start": 13573,
"text": ".\n Petitioners do not dispute that the lottery is betting."
}
},
{
"from_name": null,
"id": "fc878e77b7124e51af74d8a0de837c4f",
"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": "34fee7c22f78400cba9e0d2b002cf594",
"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": "b40cbeece46b4b37afee5f8eb5b4ec43",
"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": "f992fee35a184c23b33a003384a431da",
"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": "f9c84b5d40f2498f8bf278ee29985113",
"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": "28914bacc63b471eb0530364b604899a",
"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": "325ca7941f1547e4834a46c6d42a44bf",
"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": "794f009d57ea4dc1b9a666423937521a",
"to_name": null,
"type": null,
"value": {
"end": 15430,
"labels": [
"PRE_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": "a868610ff6e942c08a511c8c5a1705b1",
"to_name": null,
"type": null,
"value": {
"end": 15543,
"labels": [
"PRE_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": "b8a1336d98a04aee832bedfe94635860",
"to_name": null,
"type": null,
"value": {
"end": 15634,
"labels": [
"PRE_RELIED"
],
"start": 15544,
"text": "It is necessary to examine the scheme underlying the Seventh Schedule of the Constitution."
}
},
{
"from_name": null,
"id": "5feb6b98cc9d47fc8d99f5c2c8b26cca",
"to_name": null,
"type": null,
"value": {
"end": 16115,
"labels": [
"PRE_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": "9d7b8c2a9e4f46c59e6fd045b227a117",
"to_name": null,
"type": null,
"value": {
"end": 16246,
"labels": [
"PRE_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": "6bfbbed18ae54a7f9c71cc56055a6881",
"to_name": null,
"type": null,
"value": {
"end": 16330,
"labels": [
"PRE_RELIED"
],
"start": 16247,
"text": "Entries 82 to 92 enumerate the taxes which could be imposed by a law of Parliament."
}
},
{
"from_name": null,
"id": "68f632605ba94cc2bffc982a938becaf",
"to_name": null,
"type": null,
"value": {
"end": 16518,
"labels": [
"PRE_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": "e5d29dc1aa2747ada8e2407f708f6131",
"to_name": null,
"type": null,
"value": {
"end": 16624,
"labels": [
"PRE_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": "c649e43e345e4c6ea5a62ff9e9c5776e",
"to_name": null,
"type": null,
"value": {
"end": 16700,
"labels": [
"PRE_RELIED"
],
"start": 16625,
"text": "Entries 45 to 63 in that list form another group, and they deal with taxes."
}
},
{
"from_name": null,
"id": "15ed8fba7ded40798c86ac3412af9836",
"to_name": null,
"type": null,
"value": {
"end": 16721,
"labels": [
"PRE_RELIED"
],
"start": 16701,
"text": "(AIR p.493, para 51)"
}
},
{
"from_name": null,
"id": "efca19d89bd34014b5a3390791570414",
"to_name": null,
"type": null,
"value": {
"end": 16931,
"labels": [
"PRE_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": "30a90c58c2754bf0a8c8853ce47af1ba",
"to_name": null,
"type": null,
"value": {
"end": 17067,
"labels": [
"PRE_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": "18b7559ba45649ccb44c092ff9e022ee",
"to_name": null,
"type": null,
"value": {
"end": 17182,
"labels": [
"PRE_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": "76f30ac4ddb74d5c926984aadf3bc4a0",
"to_name": null,
"type": null,
"value": {
"end": 17207,
"labels": [
"PRE_RELIED"
],
"start": 17183,
"text": "(AIR 494, paras 51 & 55)"
}
},
{
"from_name": null,
"id": "2aee54fe628f4522aeb320363364f13d",
"to_name": null,
"type": null,
"value": {
"end": 17334,
"labels": [
"PRE_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": "aac2c825c83545a99b73c03b9937678e",
"to_name": null,
"type": null,
"value": {
"end": 17438,
"labels": [
"PRE_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": "70a37da7983749359d16cdcfe0c2a314",
"to_name": null,
"type": null,
"value": {
"end": 17572,
"labels": [
"PRE_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": "1b94c60e3b7e4c4b8145dc564812ad24",
"to_name": null,
"type": null,
"value": {
"end": 17673,
"labels": [
"PRE_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": "e57f2b78c44a455db37d2d7cc0fafde2",
"to_name": null,
"type": null,
"value": {
"end": 17866,
"labels": [
"PRE_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": "c482cb92fae34d76a523fb59b4fb858a",
"to_name": null,
"type": null,
"value": {
"end": 17880,
"labels": [
"PRE_RELIED"
],
"start": 17866,
"text": "\n Illustration"
}
},
{
"from_name": null,
"id": "72839808c9fb4e66997ebb98573e9c46",
"to_name": null,
"type": null,
"value": {
"end": 18140,
"labels": [
"PRE_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": "732f0c1dae354cefaac2fca2b6835067",
"to_name": null,
"type": null,
"value": {
"end": 18245,
"labels": [
"PRE_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": "0a7128288f744c74b28505f41cc6214a",
"to_name": null,
"type": null,
"value": {
"end": 18273,
"labels": [
"PRE_RELIED"
],
"start": 18246,
"text": "(AIR p.495, paras 56-57) 6."
}
},
{
"from_name": null,
"id": "8fc92f3f7ac149cead4967b1a4604fd4",
"to_name": null,
"type": null,
"value": {
"end": 18547,
"labels": [
"PRE_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": "151f9ff94bf74b968bf9517fb5b9211c",
"to_name": null,
"type": null,
"value": {
"end": 18709,
"labels": [
"PRE_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": "1e6d6bb5e3e541cfadca26bf12d5ce09",
"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": "5327a365aa954a0bb90bf8a3c1a3840b",
"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": "f4d5f0763e9d4624bae51c6e5ae9ff2b",
"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": "546cac30aea2480fbf515af81f02eb6e",
"to_name": null,
"type": null,
"value": {
"end": 19943,
"labels": [
"PRE_RELIED"
],
"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": "2d183b88631447128fd4e7212a4aa219",
"to_name": null,
"type": null,
"value": {
"end": 20054,
"labels": [
"PRE_RELIED"
],
"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": "5e2a43f77fdb43c6b09be2b5ed1d79db",
"to_name": null,
"type": null,
"value": {
"end": 20450,
"labels": [
"PRE_RELIED"
],
"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": "ef9b85ff3c9547528c1a0478285a5d4b",
"to_name": null,
"type": null,
"value": {
"end": 20745,
"labels": [
"PRE_RELIED"
],
"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": "a21d4fdd5691494fab36c6e3520534bb",
"to_name": null,
"type": null,
"value": {
"end": 20939,
"labels": [
"PRE_RELIED"
],
"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": "c2d00c0e133e431097f25d8d921dcc45",
"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": "f79156df337e448d9a95e6d253028d5d",
"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": "e7e739001a344a6791bb23cba4ed97d0",
"to_name": null,
"type": null,
"value": {
"end": 21243,
"labels": [
"PRE_RELIED"
],
"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": "a5f2ddf0143a4df88168b094e8283e96",
"to_name": null,
"type": null,
"value": {
"end": 21303,
"labels": [
"PRE_RELIED"
],
"start": 21243,
"text": "\n Entry 97 in List I confers residuary powers on Parliament."
}
},
{
"from_name": null,
"id": "32dd68b92e554724b4566cba2ddc2644",
"to_name": null,
"type": null,
"value": {
"end": 21521,
"labels": [
"PRE_RELIED"
],
"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": "a737215122504e44b0af39579d6606bb",
"to_name": null,
"type": null,
"value": {
"end": 21674,
"labels": [
"PRE_RELIED"
],
"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": "90221f5c55d7415c9f552a90892c825c",
"to_name": null,
"type": null,
"value": {
"end": 21858,
"labels": [
"PRE_RELIED"
],
"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": "91d873ea61bc43d2a127c5d535792b27",
"to_name": null,
"type": null,
"value": {
"end": 22085,
"labels": [
"PRE_RELIED"
],
"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": "1494266a2d7848a89a2c42671eb1cba6",
"to_name": null,
"type": null,
"value": {
"end": 22188,
"labels": [
"PRE_RELIED"
],
"start": 22086,
"text": "According to Seervai (Constitutional Law of India, 4th/Silver Jubilee Edn. Vol.3, para22.191): 22.191."
}
},
{
"from_name": null,
"id": "489f49c177e2443a9d43cd847f61f4da",
"to_name": null,
"type": null,
"value": {
"end": 22359,
"labels": [
"PRE_NOT_RELIED"
],
"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": "700b8af89921473b9937fa1dcf99fcfb",
"to_name": null,
"type": null,
"value": {
"end": 22735,
"labels": [
"PRE_NOT_RELIED"
],
"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": "63da9f64b9d341f3bae4f8ac7b47a95f",
"to_name": null,
"type": null,
"value": {
"end": 22913,
"labels": [
"PRE_RELIED"
],
"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": "bf8f9fd784174e9eb61108d722897212",
"to_name": null,
"type": null,
"value": {
"end": 22951,
"labels": [
"PRE_RELIED"
],
"start": 22914,
"text": "Hegde and Mukherjea, JJ. held that --"
}
},
{
"from_name": null,
"id": "06d799624c0f416ba650cc381c23cbd9",
"to_name": null,
"type": null,
"value": {
"end": 23017,
"labels": [
"PRE_RELIED"
],
"start": 22952,
"text": "It is obvious that these lists have been very carefully prepared."
}
},
{
"from_name": null,
"id": "f0ed1b10031f4c71864e495b68d2169d",
"to_name": null,
"type": null,
"value": {
"end": 23051,
"labels": [
"PRE_RELIED"
],
"start": 23018,
"text": "They are by and large exhaustive."
}
},
{
"from_name": null,
"id": "8d9d7daca52a425f9b43201a9e082fe6",
"to_name": null,
"type": null,
"value": {
"end": 23137,
"labels": [
"PRE_RELIED"
],
"start": 23052,
"text": "Entry 97 in List I was included to meet some unexpected and unforeseen contingencies."
}
},
{
"from_name": null,
"id": "e235c000ceb743609334428509a62b7e",
"to_name": null,
"type": null,
"value": {
"end": 23487,
"labels": [
"PRE_RELIED"
],
"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": "7d1eae2bcd834451bf6286ff0316fb8d",
"to_name": null,
"type": null,
"value": {
"end": 23721,
"labels": [
"PRE_RELIED"
],
"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": "e8dcc33af79847629039ca91cf78ee73",
"to_name": null,
"type": null,
"value": {
"end": 23749,
"labels": [
"PRE_RELIED"
],
"start": 23721,
"text": "\n(emphasis in original) 101."
}
},
{
"from_name": null,
"id": "a59a9944f9ca4aa69b117189da1ec023",
"to_name": null,
"type": null,
"value": {
"end": 23801,
"labels": [
"PRE_RELIED"
],
"start": 23750,
"text": " Similar views were expressed by five other Judges."
}
},
{
"from_name": null,
"id": "9cd5f24843b14170b0c280bdea0a8c05",
"to_name": null,
"type": null,
"value": {
"end": 24046,
"labels": [
"PRE_RELIED"
],
"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": "2d32ce7d6f364846b74fdac526f5ce6a",
"to_name": null,
"type": null,
"value": {
"end": 24268,
"labels": [
"PRE_RELIED"
],
"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": "cedbdd8e9af643babdad0c8237ac067b",
"to_name": null,
"type": null,
"value": {
"end": 24330,
"labels": [
"PRE_RELIED"
],
"start": 24269,
"text": "Vide para 22.194 the eminent jurist poses a question: 22.194."
}
},
{
"from_name": null,
"id": "c7c35b0c171b4877a5c32e4947315d1a",
"to_name": null,
"type": null,
"value": {
"end": 24643,
"labels": [
"PRE_RELIED"
],
"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": "0820a90be23c4a8b9ed54109f6858f68",
"to_name": null,
"type": null,
"value": {
"end": 25000,
"labels": [
"PRE_RELIED"
],
"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": "3f95ec848d904ef392b1e18eb194a263",
"to_name": null,
"type": null,
"value": {
"end": 25129,
"labels": [
"PRE_RELIED"
],
"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": "b2683d2ffb0341c78fe594bd887ee37d",
"to_name": null,
"type": null,
"value": {
"end": 25319,
"labels": [
"PRE_RELIED"
],
"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": "1c68355576f8482b82173ca063a4ef24",
"to_name": null,
"type": null,
"value": {
"end": 25343,
"labels": [
"PRE_RELIED"
],
"start": 25320,
"text": "(para 22.195 at p.2433)"
}
},
{
"from_name": null,
"id": "c4ca4c660b254ab3995be1f8f8fbdf40",
"to_name": null,
"type": null,
"value": {
"end": 25399,
"labels": [
"PRE_RELIED"
],
"start": 25344,
"text": "Power to tax must be express, else no power to tax 104."
}
},
{
"from_name": null,
"id": "5046d0ac13204e9dbce8ea4387af85f7",
"to_name": null,
"type": null,
"value": {
"end": 25446,
"labels": [
"PRE_RELIED"
],
"start": 25400,
"text": "There is nothing like an implied power to tax."
}
},
{
"from_name": null,
"id": "3a8e607164774dc5af3d8fa4cc24e9b9",
"to_name": null,
"type": null,
"value": {
"end": 25641,
"labels": [
"PRE_RELIED"
],
"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": "9dc27a576166473b81ea150730f850fe",
"to_name": null,
"type": null,
"value": {
"end": 25737,
"labels": [
"PRE_RELIED"
],
"start": 25642,
"text": "States Cooley in Taxation (Vol.1, 4th Edn): \"There is no such thing as taxation by implication."
}
},
{
"from_name": null,
"id": "edd7fbf374934eaa924b11318e504c56",
"to_name": null,
"type": null,
"value": {
"end": 25869,
"labels": [
"PRE_RELIED"
],
"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": "7c887cedc74e4a43bfd50529e59e302e",
"to_name": null,
"type": null,
"value": {
"end": 25890,
"labels": [
"PRE_RELIED"
],
"start": 25870,
"text": "(para 122 at p.278)."
}
},
{
"from_name": null,
"id": "e6e3c33799524684a4e62f67edce533e",
"to_name": null,
"type": null,
"value": {
"end": 25896,
"labels": [
"PRE_RELIED"
],
"start": 25890,
"text": "\n 105."
}
},
{
"from_name": null,
"id": "38944137d04342d789d40ba5ee44c88f",
"to_name": null,
"type": null,
"value": {
"end": 26120,
"labels": [
"PRE_RELIED"
],
"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": "c93ee97643374274b1bbb2e27e81c13e",
"to_name": null,
"type": null,
"value": {
"end": 26417,
"labels": [
"PRE_RELIED"
],
"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": "c4b50a3b77234f8db93a2eefdaacfdb4",
"to_name": null,
"type": null,
"value": {
"end": 26631,
"labels": [
"PRE_RELIED"
],
"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": "d83353ad6bc24a73a3742a5e6bb03711",
"to_name": null,
"type": null,
"value": {
"end": 26850,
"labels": [
"PRE_RELIED"
],
"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": "ffda6c3b90fc46dabfcfa58096a6119e",
"to_name": null,
"type": null,
"value": {
"end": 27073,
"labels": [
"PRE_RELIED"
],
"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": "a6637e0b0c054287b4225a28da2049ec",
"to_name": null,
"type": null,
"value": {
"end": 27251,
"labels": [
"PRE_RELIED"
],
"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": "c29db65064584eb184a2f01217e7fa2e",
"to_name": null,
"type": null,
"value": {
"end": 27288,
"labels": [
"PRE_RELIED"
],
"start": 27252,
"text": "There is no room for any intendment."
}
},
{
"from_name": null,
"id": "ca1704f1f234400091ea34f43465407f",
"to_name": null,
"type": null,
"value": {
"end": 27320,
"labels": [
"PRE_RELIED"
],
"start": 27289,
"text": "There is no equity about a tax."
}
},
{
"from_name": null,
"id": "38c7820c3a9b4a2bbc0284cdec1b75f5",
"to_name": null,
"type": null,
"value": {
"end": 27355,
"labels": [
"PRE_RELIED"
],
"start": 27320,
"text": "\nThere is no presumption as to tax."
}
},
{
"from_name": null,
"id": "fcde1696b7914d1ab2d8c9d14bb439db",
"to_name": null,
"type": null,
"value": {
"end": 27407,
"labels": [
"PRE_RELIED"
],
"start": 27356,
"text": "Nothing is to be read in, nothing is to be implied."
}
},
{
"from_name": null,
"id": "0a3118fd8b914918bc8360d1c03df02b",
"to_name": null,
"type": null,
"value": {
"end": 27455,
"labels": [
"PRE_RELIED"
],
"start": 27408,
"text": "One can only look fairly at the language used.\""
}
},
{
"from_name": null,
"id": "29c141995274475cba9df4fa8b9680cf",
"to_name": null,
"type": null,
"value": {
"end": 27471,
"labels": [
"PRE_RELIED"
],
"start": 27456,
"text": "(at p.635) 106."
}
},
{
"from_name": null,
"id": "bccbc88d8ba14ceea945823b731d9eba",
"to_name": null,
"type": null,
"value": {
"end": 27683,
"labels": [
"PRE_RELIED"
],
"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": "33f790802d4848babaa6f6e097d0ffd3",
"to_name": null,
"type": null,
"value": {
"end": 27755,
"labels": [
"PRE_RELIED"
],
"start": 27684,
"text": "Taxing statutes cannot be interpreted on any presumption or assumption."
}
},
{
"from_name": null,
"id": "294b0221192e45298dd5b50acd44aeb4",
"to_name": null,
"type": null,
"value": {
"end": 28227,
"labels": [
"PRE_RELIED"
],
"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": "00b267a881d445f9960a7f301a3baf47",
"to_name": null,
"type": null,
"value": {
"end": 28384,
"labels": [
"PRE_RELIED"
],
"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": "df2cca620fdf404eb2bff23332404371",
"to_name": null,
"type": null,
"value": {
"end": 28491,
"labels": [
"PRE_RELIED"
],
"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": "19b17218f9c04211bdf18441ba362392",
"to_name": null,
"type": null,
"value": {
"end": 28656,
"labels": [
"PRE_RELIED"
],
"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": "5ba706d45ae34593b1a71f5754458cf1",
"to_name": null,
"type": null,
"value": {
"end": 29015,
"labels": [
"PRE_RELIED"
],
"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": "969e8ef232e54cf1bbe95bdaff2dd5bd",
"to_name": null,
"type": null,
"value": {
"end": 29252,
"labels": [
"PRE_RELIED"
],
"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": "15822f45dde140fb863cf031b04f212a",
"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": "b348d0fa8b5a45339a002ab75c77702e",
"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": "e661e6784aa44b9486baaa049bed9f88",
"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": "a888f4a3ddee4ec69050790557afb13b",
"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": "9677014a1ff34dc98d2f3e96bd8c3432",
"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": "ae9f274dc2fe4873bf5e0d554ff05add",
"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": "c0b9b578608242c4a7ae72e3ef4fd4b3",
"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": "4ea9b49d8aa643a4abd8d61241965200",
"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": "7fd32b5d31314a31b1d2451a4c1bb088",
"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": "4b0098ccafe44f28807632ea0e5c6340",
"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": "566d1048543744c4a9182794167f3545",
"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": "f19f8147881e47d8aed043aac9470e04",
"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": "1696a028b9bf4decb011c859c60d4404",
"to_name": null,
"type": null,
"value": {
"end": 32939,
"labels": [
"ANALYSIS"
],
"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": "808ef031eeee4c5789861264aa04adcc",
"to_name": null,
"type": null,
"value": {
"end": 33158,
"labels": [
"ANALYSIS"
],
"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": "dc738634cbf3441ab6a8506ddc93ddbb",
"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": "55a52848b12d4a8e804c13edd0c95304",
"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": "461381c8d0fa4dcc9d4d3ec947ab44b6",
"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": "d2f4f03703bd4f3889932a13793096a3",
"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": "6c98cff9ac8b478ba984f83cb1e8c7d8",
"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": "95ca2d0a7fef4354b5f0b7bca8087702",
"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": "61387841b4a54e4f8a03ba94c6b1ed6a",
"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": "34c860f112194e34a6cafe5dfad06ca2",
"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": "7be771391b69415289b1a00b6672809f",
"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": "6cb91e4726f445288e7aedc2f2aae69c",
"to_name": null,
"type": null,
"value": {
"end": 34278,
"labels": [
"ANALYSIS"
],
"start": 34217,
"text": "\n 12. We do not find any vagueness in the scheme of the Act."
}
},
{
"from_name": null,
"id": "0cd936b970a7456fac0fdc39946ee258",
"to_name": null,
"type": null,
"value": {
"end": 34388,
"labels": [
"ANALYSIS"
],
"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": "cf70d936d1c943348d40a3edac2a5acb",
"to_name": null,
"type": null,
"value": {
"end": 34731,
"labels": [
"ANALYSIS"
],
"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": "a1d1488872e6459ebe769eb250c3874b",
"to_name": null,
"type": null,
"value": {
"end": 35072,
"labels": [
"ANALYSIS"
],
"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,
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"end": 35173,
"labels": [
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],
"start": 35072,
"text": "\n 14. Taking overall view of the matter, therefore, we do not find any substance in these petitions."
}
},
{
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"id": "9ed7fa52a7234578b464dafc6c826b9a",
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"end": 35206,
"labels": [
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"start": 35174,
"text": "They are liable to be dismissed."
}
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{
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"end": 35257,
"labels": [
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"start": 35207,
"text": "They are, accordingly so, ordered to be dismissed."
}
},
{
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"to_name": null,
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"end": 35274,
"labels": [
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],
"start": 35258,
"text": "Rule discharged."
}
},
{
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"id": "c6dd1168c3f241e09f4a090c88f33e2f",
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"value": {
"end": 35296,
"labels": [
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"start": 35275,
"text": "No order as to costs."
}
},
{
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"end": 35333,
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"start": 35296,
"text": "\n (D.K.DESHMUKH, J.) (R.S.MOHITE, J.)"
}
}
]
}
] | 4,266 | {
"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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"text": " REPORTABLE\n\n "
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"text": "IN THE SUPREME COURT OF INDIA"
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"text": "CIVIL APPELLATE JURISDICTION"
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"start": 126,
"text": "CIVIL APPEAL NO(S). 4765-4766 OF 2018\n\nMAHABIR INDUSTRIES"
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"text": ".....APPELLANT(S)"
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"text": "\n\n VERSUS OF"
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"start": 290,
"text": "\n .....RESPONDENT(S)\nPRINCIPAL COMMISSIONER"
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"text": "\nINCOME TAX"
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{
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"text": "\n\n W I T H\nCIVIL APPEAL NO. 4767 OF 2018"
}
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{
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"text": "\n\n J U D G M E N T"
}
},
{
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"id": "8da5f481d38f49389512ce95b573357b",
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"type": null,
"value": {
"end": 511,
"labels": [
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],
"start": 496,
"text": "\n A.K.SIKRI, J."
}
},
{
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"id": "3a34350e1b1f42f0a1ffaf1d35656f55",
"to_name": null,
"type": null,
"value": {
"end": 593,
"labels": [
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],
"start": 511,
"text": "\n A short question of law arises for consideration in these appeals."
}
},
{
"from_name": null,
"id": "9e20ac5792b24ee9ba065bb8f0d55ff8",
"to_name": null,
"type": null,
"value": {
"end": 823,
"labels": [
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],
"start": 594,
"text": "All the appeals are filed by the same party, namely, Mahabir Industries (hereinafter referred to as the `assessee') in which common respondent is Principal Commissioner of Income Tax (hereinafter referred to as the `Department')."
}
},
{
"from_name": null,
"id": "e929f62425844137bd10768a1965d2b2",
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"type": null,
"value": {
"end": 1084,
"labels": [
"FAC"
],
"start": 824,
"text": "Before stating the question of law, it may be necessary to mention in brief the background under which the said question of law has arisen inasmuch as this background would be an enabling factor in understanding the true ambit and scope of the question of law."
}
},
{
"from_name": null,
"id": "0c829c8af409442e8973e9d4851e4aca",
"to_name": null,
"type": null,
"value": {
"end": 1185,
"labels": [
"FAC"
],
"start": 1084,
"text": "\n The assessee manufactures polythene for which it is having its factory in Shimla, Himachal Pradesh."
}
},
{
"from_name": null,
"id": "a1a28c029f6a48a7abc7fb91643b94ea",
"to_name": null,
"type": null,
"value": {
"end": 1612,
"labels": [
"FAC"
],
"start": 1186,
"text": "The activity undertaken by the assessee, an industrial undertaking, qualified for exemption from income tax under Section 80-IA of the Income Tax Act (hereinafter referred to as the `Act'). Section 80-IA of the Act provides for deductions in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development etc. if it fulfills the conditions mentioned in sub- section (4) thereof."
}
},
{
"from_name": null,
"id": "4ee53714978c4669b88d12457be74db5",
"to_name": null,
"type": null,
"value": {
"end": 1761,
"labels": [
"FAC"
],
"start": 1613,
"text": "Such a deduction is of an amount equal to hundred per cent of the profits and gains derived from such business for ten consecutive Assessment Years."
}
},
{
"from_name": null,
"id": "a2baf3c476c74900bab11949949c3c28",
"to_name": null,
"type": null,
"value": {
"end": 2106,
"labels": [
"FAC"
],
"start": 1762,
"text": "In nutshell, those undertakings or enterprises, which fulfill the conditions mentioned in sub-section (4) of Section 80-IA of the Act, are entitled to total deductions of their profits, which means, no tax is payable and the period for which such undertakings or enterprises are exempted from payment of tax is ten consecutive Assessment Years."
}
},
{
"from_name": null,
"id": "b15ecf879b25425494f40923a58fa09a",
"to_name": null,
"type": null,
"value": {
"end": 2219,
"labels": [
"FAC"
],
"start": 2107,
"text": "The assessee admittedly qualified for this deduction which it started availing from the Assessment Year 1998-99."
}
},
{
"from_name": null,
"id": "fe74ea93935d43bba067c9d58e0f9743",
"to_name": null,
"type": null,
"value": {
"end": 2331,
"labels": [
"FAC"
],
"start": 2220,
"text": "This deduction under Section 80-IA was claimed and allowed for two Assessment Years i.e. 1998-99 and 1999-2000."
}
},
{
"from_name": null,
"id": "114b2eb691c549aea2fd877199c9c7c1",
"to_name": null,
"type": null,
"value": {
"end": 2457,
"labels": [
"ANALYSIS"
],
"start": 2331,
"text": "\n 2. Section 80-IA of the Act was originally introduced in the year 1991 by the Finance (No.2) Act, 1991 w.e.f. April 1, 1991."
}
},
{
"from_name": null,
"id": "7cf880bc81044438afa730c28fb6effb",
"to_name": null,
"type": null,
"value": {
"end": 2513,
"labels": [
"ANALYSIS"
],
"start": 2458,
"text": "There were amendments in the Section from time to time."
}
},
{
"from_name": null,
"id": "10c3b4f72e4c4cd1b5754745e96b098c",
"to_name": null,
"type": null,
"value": {
"end": 2585,
"labels": [
"ANALYSIS"
],
"start": 2514,
"text": "This Section was amended by the Finance Act, 1999 w.e.f. April 1, 2000."
}
},
{
"from_name": null,
"id": "f19fd64c9330452a80ba08f278198ccf",
"to_name": null,
"type": null,
"value": {
"end": 2696,
"labels": [
"ANALYSIS"
],
"start": 2586,
"text": "Along with this provision, Section 80-IB was also introduced for the first time by the same Finance Act, 1999."
}
},
{
"from_name": null,
"id": "f49a2556f08849f8ae36244bd37d276a",
"to_name": null,
"type": null,
"value": {
"end": 2849,
"labels": [
"ANALYSIS"
],
"start": 2697,
"text": "This provision allows deduction in respect of profits and gains from certain industrial undertakings other than infrastructure development undertakings."
}
},
{
"from_name": null,
"id": "388e86845a4645caa9a6d23622b60237",
"to_name": null,
"type": null,
"value": {
"end": 3006,
"labels": [
"ANALYSIS"
],
"start": 2849,
"text": "\n Deduction from such profits and gains is of an amount equal to such percentage and for such number of Assessment Years as specified in Section 80-IB."
}
},
{
"from_name": null,
"id": "09adf837f8174c14b39979f9b93273ba",
"to_name": null,
"type": null,
"value": {
"end": 3143,
"labels": [
"STA"
],
"start": 3007,
"text": "Sub-section (4) of Section 80-IB provides for hundred per cent deduction for a period of five years and thereafter twenty-five per cent."
}
},
{
"from_name": null,
"id": "e443cf0ed8a8406d8b4195bbdcdd34c0",
"to_name": null,
"type": null,
"value": {
"end": 3254,
"labels": [
"STA"
],
"start": 3144,
"text": "First proviso thereto states that total period of deduction is not to exceed ten consecutive Assessment Years."
}
},
{
"from_name": null,
"id": "6888eaf2c9a947009cdff6df024c37ca",
"to_name": null,
"type": null,
"value": {
"end": 3390,
"labels": [
"STA"
],
"start": 3255,
"text": "Second proviso is a specific provision for industries in the North-Eastern Region to which we shall advert to at the appropriate stage."
}
},
{
"from_name": null,
"id": "9271ea99f7f54182adb5a3398b31c86c",
"to_name": null,
"type": null,
"value": {
"end": 3570,
"labels": [
"STA"
],
"start": 3391,
"text": "Sub-section (2) enumerates the conditions which are to be fulfilled by such industrial undertakings in order to qualify for deductions from profits and gains under that provision."
}
},
{
"from_name": null,
"id": "d39c9b5ed17c4f1ba7712f01daf8efcc",
"to_name": null,
"type": null,
"value": {
"end": 3726,
"labels": [
"FAC"
],
"start": 3570,
"text": "\n 3. As mentioned above, for the Assessment Years 1998-99 and 1999-2000 (i.e. two Assessment Years), the assessee was allowed deduction under Section 80-IA."
}
},
{
"from_name": null,
"id": "ff66f52ea0fb42b8874a6feac81de925",
"to_name": null,
"type": null,
"value": {
"end": 3843,
"labels": [
"FAC"
],
"start": 3727,
"text": "From the Assessment Year 2000-01 to Assessment Year 2005-06, the assessee claimed deduction under Section 80-IB.\n 4."
}
},
{
"from_name": null,
"id": "75fa5c421c7c4b1bb206133ac62674ea",
"to_name": null,
"type": null,
"value": {
"end": 3961,
"labels": [
"FAC"
],
"start": 3844,
"text": "Interestingly, another provision in the form of Section 80-IC was inserted by Finance Act, 2003 w.e.f. April 1, 2004."
}
},
{
"from_name": null,
"id": "9988eaaefd0e4ef598b2dacd4c49ccd0",
"to_name": null,
"type": null,
"value": {
"end": 4156,
"labels": [
"FAC"
],
"start": 3962,
"text": "As per this provision, certain undertakings or enterprises in certain special category States are allowed deduction from such profits and gains, as specified in sub-section (3) of Section 80-IC."
}
},
{
"from_name": null,
"id": "204333eea6bc483a9d5e0b7ce8939244",
"to_name": null,
"type": null,
"value": {
"end": 4322,
"labels": [
"FAC"
],
"start": 4157,
"text": "The provisions of Section 80-IC provided deduction to manufacturing units situated in the State of Sikkim, Himachal Pradesh and Uttaranchal and North-Eastern States."
}
},
{
"from_name": null,
"id": "a547c07930da4136bfc40f7c79d8847e",
"to_name": null,
"type": null,
"value": {
"end": 4484,
"labels": [
"FAC"
],
"start": 4323,
"text": "The deduction was provided to new units established in the aforesaid States, and also to existing units in those States if substantial expansion was carried out."
}
},
{
"from_name": null,
"id": "23eeb627c76c4281a73d2f17ef5d4dac",
"to_name": null,
"type": null,
"value": {
"end": 4735,
"labels": [
"FAC"
],
"start": 4485,
"text": "The deduction was available @100% for ten Assessment Years for the units located in North-Eastern and in the State of Sikkim and for the units located in Himachal Pradesh, the deduction was available @100% for five years and @25% for next five years."
}
},
{
"from_name": null,
"id": "d671cf50ed6d4a849037abf995eccb9f",
"to_name": null,
"type": null,
"value": {
"end": 5013,
"labels": [
"FAC"
],
"start": 4736,
"text": "The assessee completed substantial expansion (by investing in new plant and machinery of value more than 50% of the value of plant and machinery already installed as on 1 April, 2005) to the manufacturing unit situated at Baddi, Himachal Pradesh in the Assessment Year 2006-07."
}
},
{
"from_name": null,
"id": "d78349ae9098477ea465ceaad1da81d3",
"to_name": null,
"type": null,
"value": {
"end": 5260,
"labels": [
"FAC"
],
"start": 5014,
"text": "In view of the substantial expansion, the accused claimed deduction under Section 80-IC @100% for Assessment Years 2006-07 and 2007- 08, which was also allowed by the Assessing Officer (AO) after passing the order under Section 143(3) of the Act."
}
},
{
"from_name": null,
"id": "f63ff06cc00f4c508f1d9b158d191679",
"to_name": null,
"type": null,
"value": {
"end": 5386,
"labels": [
"STA"
],
"start": 5260,
"text": "\n 5. Sub-section (3), as noted above, mentions the period of ten Assessment Years commencing with the initial Assessment Year."
}
},
{
"from_name": null,
"id": "8f7811bdcfeb43b682a6981335c5110b",
"to_name": null,
"type": null,
"value": {
"end": 5836,
"labels": [
"STA"
],
"start": 5386,
"text": "\n Sub-section (6) may also be taken note of at this stage which reads as under: \"(6) Notwithstanding anything contained in this Act, no deduction shall be allowed to any undertaking or enterprise under this section, where the total period of deduction inclusive of the period of deduction under this section, or under the second proviso to sub-section (4) of section 80- IB or under section 10C, as the case may be, exceeds ten assessment years.\"\n 6."
}
},
{
"from_name": null,
"id": "1e8c8ce22500421497815f76c2cf6035",
"to_name": null,
"type": null,
"value": {
"end": 6036,
"labels": [
"ANALYSIS"
],
"start": 5837,
"text": "As noted above, the assessee had carried out substantial expansion in the Assessment Year 2006-07 and, therefore, claimed exemption under Section 80-IC of the Act for Assessment Year 2006-07 onwards."
}
},
{
"from_name": null,
"id": "d3351907153249b08134fca9fd9afd44",
"to_name": null,
"type": null,
"value": {
"end": 6094,
"labels": [
"ANALYSIS"
],
"start": 6037,
"text": "Deductions for the year 2006-07 and 2007-08 were allowed."
}
},
{
"from_name": null,
"id": "0518d2846cab4fd4a339d498727ba56c",
"to_name": null,
"type": null,
"value": {
"end": 6401,
"labels": [
"ANALYSIS"
],
"start": 6095,
"text": "However, thereafter, deductions for the Assessment Year 2008-09 and Assessment Year 2009-2010 were rejected by the AO on the ground that this was 11th and 12th year of deduction and as per Section 80-IC(6), total deductions under Section 80-IC and Section 80-IB cannot exceed the total period of ten years."
}
},
{
"from_name": null,
"id": "81988cef1bc04df8b9201fce29878b98",
"to_name": null,
"type": null,
"value": {
"end": 6516,
"labels": [
"ANALYSIS"
],
"start": 6402,
"text": "Commissioner of Income Tax (Appeals) {CIT(A)} and Income Tax Appellate Tribunal (ITAT) upheld the order of the AO."
}
},
{
"from_name": null,
"id": "9b08d083d7c84bbdad819e56ed23d1fd",
"to_name": null,
"type": null,
"value": {
"end": 6635,
"labels": [
"ANALYSIS"
],
"start": 6516,
"text": "\n The High Court took up the appeals of the assessee along with other similar enterprises who had claimed the benefits."
}
},
{
"from_name": null,
"id": "f36e88febd2e4d7a9b1e0331aa235846",
"to_name": null,
"type": null,
"value": {
"end": 7069,
"labels": [
"ANALYSIS"
],
"start": 6636,
"text": "It framed the following question in those appeals: \"The moot issue involved in these appeals, inter alia, is as to whether an \"undertaking or an enterprise\" (hereinafter referred to as the Unit), established after 7th January, 2003, carrying out \"substantial expansion\" within the specified window period, i.e. between 7.1.2003 and 1.4.2012, would be entitled to deduction on profits @100%, under Section 80-IC of the Income Tax Act."
}
},
{
"from_name": null,
"id": "cdb3a39621ab471583d54ea8291b3cd1",
"to_name": null,
"type": null,
"value": {
"end": 7109,
"labels": [
"ANALYSIS"
],
"start": 7070,
"text": "Also, if so, then for what period.\"\n 7."
}
},
{
"from_name": null,
"id": "0ad4f064a8d644c7baf16e855b14f9d1",
"to_name": null,
"type": null,
"value": {
"end": 7172,
"labels": [
"ANALYSIS"
],
"start": 7110,
"text": "This question has been decided in favour of all the assessees."
}
},
{
"from_name": null,
"id": "6cdb19c8c8f3463baba86164980e9c62",
"to_name": null,
"type": null,
"value": {
"end": 7590,
"labels": [
"ANALYSIS"
],
"start": 7172,
"text": "\n However, insofar as the assessee herein is concerned, keeping in view that there is a ceiling of ten years as stipulated under Section 80-IC(6), the High Court has held that ten years period shall be counted from the Assessment Year 1998-99 when the assessee had claimed deduction for the first time under Section 80-IA and, therefore, deductions for the Assessment Years 2008- 09 and 2009-2010 would not be allowed."
}
},
{
"from_name": null,
"id": "1c761cb6b7694413a86819130b2e15a1",
"to_name": null,
"type": null,
"value": {
"end": 7667,
"labels": [
"ANALYSIS"
],
"start": 7591,
"text": "This is clear from the following discussion in the High Court judgment: \"46."
}
},
{
"from_name": null,
"id": "b663a967c0774b1e81005e54546aa4db",
"to_name": null,
"type": null,
"value": {
"end": 7838,
"labels": [
"ANALYSIS"
],
"start": 7668,
"text": "The moment \"substantial expansion\" is completed as per Section 80-IC (8)(ix), the statutory definition of \"initial assessment year\" [Section 80-IC(8)(v)] comes into play."
}
},
{
"from_name": null,
"id": "a2b9794a0ce34c14b5be4ef4b24ce524",
"to_name": null,
"type": null,
"value": {
"end": 8045,
"labels": [
"ANALYSIS"
],
"start": 7838,
"text": "\nAnd consequently, Section 80-IC(3)(ii) entitles the unit to 100% deduction for five years commencing with completion of \"substantial expansion\", subject to maximum of ten years as per Section 80-IC(6).\n 47."
}
},
{
"from_name": null,
"id": "3233b402543f49dda6c5f97bb2e57df5",
"to_name": null,
"type": null,
"value": {
"end": 8175,
"labels": [
"ANALYSIS"
],
"start": 8046,
"text": "A unit that started operating/existed before 7.1.2003 was entitled to 100% deduction for first five years under Section 80-IB(4)."
}
},
{
"from_name": null,
"id": "3bb8a02198ad422db779ad4e2350074e",
"to_name": null,
"type": null,
"value": {
"end": 8442,
"labels": [
"ANALYSIS"
],
"start": 8176,
"text": "If this unit completes substantial expansion during the window period (7.1.2003 to 31.3.2012), it would be eligible for 100% deduction again for another five years under Section 80-IC(3)(ii), subject to ceiling of ten years as stipulated under Section 80-IC(6).\n 48."
}
},
{
"from_name": null,
"id": "1edc26cf47f04b9b96fc8908db8109ec",
"to_name": null,
"type": null,
"value": {
"end": 9572,
"labels": [
"ANALYSIS"
],
"start": 8443,
"text": "Applying the aforesaid interpretation, we find there can be different fact situations, some of which, we have tried to illustrate; (i) a \"Unit\" established prior to 7.1.2003, claiming deduction under Section 80-IB, post insertion of Section 80-IC carries out substantial expansion, would be entitled to deduction only under Section 80-IC, at the admissible percentage, for the remaining period, which in any case when combined, cannot exceed ten years, (ii) just as in the case of the present assessee, a unit established after 7.1.2003, carries out substantial expansion only in the 8th year of its establishment, for the first five years would have already claimed deduction @ 100%; for the 6th and 7th years @ 25%, and then for the period post substantial expansion, in our considered view, the initial year of assessment being in the 8th year, would be entitled for deduction @ 100%, subject to the cap of ten assessment years, (iii) the assessee establishes a unit after January 2003, say in the year 2005-06 and claims deduction under Section 80-IC for the first time in the assessment year 2006-2007 @ 100% of its profits."
}
},
{
"from_name": null,
"id": "be288aad19dd437493d183ada46049a1",
"to_name": null,
"type": null,
"value": {
"end": 10056,
"labels": [
"ANALYSIS"
],
"start": 9573,
"text": "Thereafter, substantially expands the Unit in the year 2009-10, relevant to Assessment Year 2010-11 can claim deduction @ 100% for next five years subject to the cap of ten assessment years, (iv) an existing unit not claiming any deduction under Section 80-IA, 80-IB or 80-IC substantially expands in the year 2003 and claims deduction under Section 80-IC first time in Assessment Year 2004-2005 and then substantially expands in the year 2007-2008, can claim deduction @ 100% w.e.f."
}
},
{
"from_name": null,
"id": "61cda15e250d49479861eaa50f157bfd",
"to_name": null,
"type": null,
"value": {
"end": 10102,
"labels": [
"ANALYSIS"
],
"start": 10057,
"text": "Assessment Year 2008-2009 for next five years"
}
},
{
"from_name": null,
"id": "2fadb83443024f51ba49a62bc1df351c",
"to_name": null,
"type": null,
"value": {
"end": 10282,
"labels": [
"ANALYSIS"
],
"start": 10102,
"text": ", (v) the assessee sets up its unit in the year 2000- 2001, claiming deduction under Section 80-IB till the Assessment Year 2003-2004 and thereafter under Section 80-IC as per law."
}
},
{
"from_name": null,
"id": "c56971cbf3de4670b4a08f0dea2d6237",
"to_name": null,
"type": null,
"value": {
"end": 10386,
"labels": [
"ANALYSIS"
],
"start": 10283,
"text": "Carrying out Substantial expansion in the Assessment Year 2004-2005, now claims deduction @ 100% w.e.f."
}
},
{
"from_name": null,
"id": "60174af5db1c4c6da8b0dcf37c1eea88",
"to_name": null,
"type": null,
"value": {
"end": 10661,
"labels": [
"ANALYSIS"
],
"start": 10387,
"text": "Assessment Year 2004-05 again substantially expands in the Assessment Year 2008-2009 can claim 100% deduction w.e.f. 2008-2009, (vi) the assessee sets up a unit in the year 2005-2006 and does not undergo substantial expansion at all can claim deduction under Section 80-IC.\""
}
},
{
"from_name": null,
"id": "c4ae0ad821824b939f456e7ea330339b",
"to_name": null,
"type": null,
"value": {
"end": 10787,
"labels": [
"ANALYSIS"
],
"start": 10661,
"text": "\n 8. As can be discerned, all other aspects are decided in favour of the assessees except what is illustrated at (i) and (iv)."
}
},
{
"from_name": null,
"id": "238d7ab4f6e54042aa9d87bcbcdc005d",
"to_name": null,
"type": null,
"value": {
"end": 11013,
"labels": [
"ANALYSIS"
],
"start": 10788,
"text": "However, the effect thereof is that insofar as appeals of the assessee herein are concerned, they are dismissed on the ground that it cannot claim deduction under Sections 80-IC, 80-IB or 10C for a period exceeding ten years."
}
},
{
"from_name": null,
"id": "ed4492c7a3664f08ba93d2247a44ed51",
"to_name": null,
"type": null,
"value": {
"end": 11133,
"labels": [
"NONE"
],
"start": 11013,
"text": "\n 9. In this backdrop, the questions of law which have been framed by the assessee in these appeals are the following: \""
}
},
{
"from_name": null,
"id": "99a72b6c9696455fad56bdb25bb2e5e2",
"to_name": null,
"type": null,
"value": {
"end": 12256,
"labels": [
"ISSUE"
],
"start": 11133,
"text": "(a) Whether the Hon'ble High Court was justified in holding that the petitioner was not entitled to deduction under Section 80-IC of the Act by virtue of provision sub-section (6), when the same was not even applicable to the petitioner?\n (b) Whether the Hon'ble High Court was justified in holding that the provisions of Section 80-IC(6) of the Act apply to all the undertaking claiming deduction under Section 80-IB(4) of the Act when 80-IC(6) refers to only those undertakings which are covered by second proviso to Section 80-IB(4)?\n (c) Whether the Hon'ble High Court was justified in holding that the petitioner is not eligible for deduction under Section 80-IC for a period of 10 assessment years when substantial expansion was carried out by the Petitioner and a substantially new unit was claiming deduction under Section 80-IC of the Act?\n (d) Whether the Hon'ble High Court was justified in holding that the petitioner was not entitled to deduction under Section 80-IC of the Act for assessment year 2008-09 and 2009-10 when the total period of deduction of ten years was expiring after assessment year 2009-10?\""
}
},
{
"from_name": null,
"id": "5c9494f82468444eb74b1c9533173833",
"to_name": null,
"type": null,
"value": {
"end": 12548,
"labels": [
"ANALYSIS"
],
"start": 12256,
"text": "\n 10. As can be seen from the reading of paras 46 and 47 of the High Court judgment, it has taken a categorical view that the moment `substantial expansion' is completed as per Section 80-IC(8)(ix), the statutory definition of `initial assessment year' {Section 80- IC(8)(v)} comes into play."
}
},
{
"from_name": null,
"id": "8a24ac1b02bc4341b7f752c0e12c2d54",
"to_name": null,
"type": null,
"value": {
"end": 12810,
"labels": [
"ANALYSIS"
],
"start": 12549,
"text": "As a consequence, Section 80-IC(3)(ii) would entitle the unit to hundred per cent deduction for five years commencing with completion of `substantial expansion' followed by twenty-five per cent deduction for next five years i.e. subject to maximum of ten years."
}
},
{
"from_name": null,
"id": "2ed5b3b7afdd441282a329f2c95feb9b",
"to_name": null,
"type": null,
"value": {
"end": 13171,
"labels": [
"ANALYSIS"
],
"start": 12811,
"text": "Thus, the High Court accepts that when the substantial expansion is done in a particular Assessment Year and that is made during the period mentioned in sub-section (2) of Section 80-IC, not only benefit admissible under Section 80-IC shall get triggered, the year in which such substantial expansion is completed is to be treated as `initial assessment year'."
}
},
{
"from_name": null,
"id": "a206225b584a416b86ceecf6b261de26",
"to_name": null,
"type": null,
"value": {
"end": 13264,
"labels": [
"ANALYSIS"
],
"start": 13172,
"text": "Having said so, it has put a cap of ten years by invoking the provision of Section 80-IC(6)."
}
},
{
"from_name": null,
"id": "d5320cd25ce348ed89f024d001ea2f2f",
"to_name": null,
"type": null,
"value": {
"end": 13343,
"labels": [
"ANALYSIS"
],
"start": 13265,
"text": "We have already reproduced the provisions of sub-section (6) of Section 80-IC."
}
},
{
"from_name": null,
"id": "4f78737bf67940cda585ccee029f8fcb",
"to_name": null,
"type": null,
"value": {
"end": 13672,
"labels": [
"ANALYSIS"
],
"start": 13344,
"text": "As per this provision, no deduction is allowed to any undertaking or enterprise under this Section, where the total period of deduction inclusive of the period of deduction under this Section, or under the second proviso to sub-section (4) of Section 80-IB or under Section 10C, as the case may be, exceeds ten assessment years."
}
},
{
"from_name": null,
"id": "b8709b76c05c481fbe5c8a7c06ca6730",
"to_name": null,
"type": null,
"value": {
"end": 13977,
"labels": [
"ANALYSIS"
],
"start": 13673,
"text": "The total period of ten years, thus, is to be counted in the following three circumstances: (a) When the deduction has been given under Section 80-IC for a period of ten years, no further deduction is admissible.\n (b) When the deduction is given under second proviso to sub- section (4) of Section 80-IB."
}
},
{
"from_name": null,
"id": "0adcb44db30d48c892940c53664d9136",
"to_name": null,
"type": null,
"value": {
"end": 14347,
"labels": [
"ANALYSIS"
],
"start": 13978,
"text": "The said second proviso reads as under: \"Provided further than in the case of such industries in the North-Eastern Region, as may be notified by the Central Government, the amount of deduction shall be hundred per cent. of profits and gains for a period of ten assessment years, and the total period of deduction shall in such a case not exceed ten assessment years.\"\n "
}
},
{
"from_name": null,
"id": "dbb992171b7242bfa372ea82b5328ac4",
"to_name": null,
"type": null,
"value": {
"end": 14429,
"labels": [
"ANALYSIS"
],
"start": 14347,
"text": "This provision pertains to those industries which are in the North-Eastern Region."
}
},
{
"from_name": null,
"id": "aaeb5df98bcf41beb6f4f54203d99fdf",
"to_name": null,
"type": null,
"value": {
"end": 14483,
"labels": [
"ANALYSIS"
],
"start": 14429,
"text": "\n (c) When the deduction is claimed under Section 10C."
}
},
{
"from_name": null,
"id": "424450a94672440ba58d64c58b873d4e",
"to_name": null,
"type": null,
"value": {
"end": 14586,
"labels": [
"ANALYSIS"
],
"start": 14484,
"text": "It is again a special provision in respect of certain industrial undertakings in North-Eastern Region."
}
},
{
"from_name": null,
"id": "c0a93eb846ba492fa80ba1e628d27a3c",
"to_name": null,
"type": null,
"value": {
"end": 14935,
"labels": [
"ANALYSIS"
],
"start": 14586,
"text": "\n 11. The assessee in the instant case has not got deduction under Section 80-IC for a period of ten years as he started claiming deduction under this provision w.e.f. Assessment Year 2006-07.\n Situation Nos. (b) and (c) mentioned above would not apply to the assessee as it's undertaking/enterprise is not established in North-Eastern Region."
}
},
{
"from_name": null,
"id": "27c29ff974f34f9c82631080ff166dc9",
"to_name": null,
"type": null,
"value": {
"end": 15317,
"labels": [
"ANALYSIS"
],
"start": 14936,
"text": "It is, thus, clear that the High Court has failed to appreciate that the provisions of Section 80-IC(6) of the Act state that the total period of deduction under Section 80-IC and Section 80-IB cannot exceed ten assessment years only if the manufacturing unit was claiming deduction under second proviso to Section 80-IB(4) of the Act i.e. units located in the North-Eastern State."
}
},
{
"from_name": null,
"id": "54a6c6c3445d4499b71f8ede6b7252ac",
"to_name": null,
"type": null,
"value": {
"end": 15372,
"labels": [
"ANALYSIS"
],
"start": 15319,
"text": "12. The matter can be looked into from another angle."
}
},
{
"from_name": null,
"id": "ade5498019604bce9f2b7a89235901e3",
"to_name": null,
"type": null,
"value": {
"end": 15591,
"labels": [
"ANALYSIS"
],
"start": 15373,
"text": "Under Section 80-IA, deduction is provided to such industrial undertakings or enterprises which are engaged in infrastructure development etc.\n provided they fulfill the conditions mentioned in sub-section (4) thereof."
}
},
{
"from_name": null,
"id": "7ceb9cc014314339af8b9e855d6153b1",
"to_name": null,
"type": null,
"value": {
"end": 15777,
"labels": [
"ANALYSIS"
],
"start": 15592,
"text": "Section 80-IB makes provisions for deduction in respect of those industrial undertakings, other than infrastructure development undertakings, which are enumerated in the said provision."
}
},
{
"from_name": null,
"id": "e50f02408ca84b528aef7e5745f5bc6b",
"to_name": null,
"type": null,
"value": {
"end": 16026,
"labels": [
"ANALYSIS"
],
"start": 15778,
"text": "On the other hand, the intention behind Section 80-IC is to grant deduction to the units making new investments in the State by establishing new manufacturing unit or even to the existing manufacturing unit which carried out substantial expansions."
}
},
{
"from_name": null,
"id": "0fb7e7aa45214ac9826eace178d07611",
"to_name": null,
"type": null,
"value": {
"end": 16156,
"labels": [
"ANALYSIS"
],
"start": 16027,
"text": "The purport behind the three types of deductions specified in Section 80-IA, Section 80-IB and Section 80-IC is, thus, different."
}
},
{
"from_name": null,
"id": "a427e77c63e2432087b8307e19087f42",
"to_name": null,
"type": null,
"value": {
"end": 16296,
"labels": [
"ANALYSIS"
],
"start": 16157,
"text": "Section 80-IC stipulates the period for which hundred per cent deduction is to be given and then deduction at reduced rates is to be given."
}
},
{
"from_name": null,
"id": "f4dce8b02d534395a3b3b605a20ab720",
"to_name": null,
"type": null,
"value": {
"end": 16613,
"labels": [
"ANALYSIS"
],
"start": 16297,
"text": "If the assessee had earlier availed deduction under Section 80-IA and Section 80-IB, that would be of no concern inasmuch as on carrying out substantial expansion, which was carried out and completed in the Assessment Year 2006-07, the assessee became entitled to deduction under Section 80-IC from the initial year."
}
},
{
"from_name": null,
"id": "6a396b71be4f4b69b414a588db85b074",
"to_name": null,
"type": null,
"value": {
"end": 16857,
"labels": [
"ANALYSIS"
],
"start": 16614,
"text": "The term `initial year' is referable to the year in which substantial expansion has been completed, which legal position is stated by the High Court itself and even accepted by the Department as it has not challenged that part of the judgment."
}
},
{
"from_name": null,
"id": "1a7268eecf464c66ac0bd43f4d6e33cb",
"to_name": null,
"type": null,
"value": {
"end": 17148,
"labels": [
"ANALYSIS"
],
"start": 16858,
"text": "The inclusion of period for the deduction is availed under Section 80-IA and Section 80-IB, for the purpose of counting ten years, is provided in sub-section (6) of Section 80-IC and it is limited to those industrial undertakings or enterprises which are set-up in the North-Eastern Region."
}
},
{
"from_name": null,
"id": "f2f3c55ff6d94ffc82357087499fc4b3",
"to_name": null,
"type": null,
"value": {
"end": 17501,
"labels": [
"ANALYSIS"
],
"start": 17149,
"text": "By making specific provision of this kind, the Legislature has shown its intent, namely, where the industry is not located in North- Eastern State, the period for which deduction is availed earlier by an assessee under Section 80-IA and Section 80-IB will not be reckoned for the purpose of availing benefit of deduction under Section 80-IC of the Act."
}
},
{
"from_name": null,
"id": "1343aca547bc4b55ba49c7682463d4d0",
"to_name": null,
"type": null,
"value": {
"end": 17673,
"labels": [
"ANALYSIS"
],
"start": 17501,
"text": "\n 13. Learned counsel for the Revenue could not dispute that sub- section (6) of Section 80-IC would get attracted when the industry is located in the North-Eastern Region."
}
},
{
"from_name": null,
"id": "b5a038f3acb240dfa59ee3707e78a4a7",
"to_name": null,
"type": null,
"value": {
"end": 17988,
"labels": [
"ANALYSIS"
],
"start": 17674,
"text": "Having faced with this situation, he raised an altogether different argument for consideration by referring to Section 15C of the Income Tax Act, 1922 (hereinafter referred to as the `1922 Act'), which was also a provision which granted exemption from income in respect of newly established industrial undertaking."
}
},
{
"from_name": null,
"id": "018b8bb59c0c489a93e5efc62292ef12",
"to_name": null,
"type": null,
"value": {
"end": 18079,
"labels": [
"ANALYSIS"
],
"start": 17989,
"text": "He submitted that this Court in Textile Machinery Corporation Limited, Calcutta v.\n "
}
},
{
"from_name": null,
"id": "f2d76ea114244a51b3ba84153ce6bd1b",
"to_name": null,
"type": null,
"value": {
"end": 18537,
"labels": [
"ANALYSIS"
],
"start": 18079,
"text": "The Commissioner of Income Tax, West Bengal, Calcutta1 has held that the true test for ascertaining whether industrial undertaking is `formed by reconstruction of business already in existence' (which was the expression used in Section 15C of 1922 Act), is not whether the new industrial undertaking connotes expansion of the existing business of the assessee but whether it is a new and identifiable undertaking separate and distinct from existing business."
}
},
{
"from_name": null,
"id": "7e5c47eb4c0847ef989ae36002817de7",
"to_name": null,
"type": null,
"value": {
"end": 18725,
"labels": [
"ANALYSIS"
],
"start": 18538,
"text": "In fine, the endeavour of learned senior counsel was that the assessee cannot be treated as an industrial undertaking which has reconstructed the business i.e. made substantial expansion."
}
},
{
"from_name": null,
"id": "f859141e0ed64ca6b870c3fb242dc0ac",
"to_name": null,
"type": null,
"value": {
"end": 19071,
"labels": [
"ANALYSIS"
],
"start": 18726,
"text": "This argument has to be rejected for at least two reasons: 1 (1977) 2 SCC 368 Page 13 of 15 Civil Appeal No(s). 4765-4766 of 2018 & Anr.\n (i) Section 15C of the 1922 Act provided exemption from tax to newly established industrial undertaking if they are not `formed by reconstruction of business already in existence'."
}
},
{
"from_name": null,
"id": "99654bbbea4540288c73e982d30dfb29",
"to_name": null,
"type": null,
"value": {
"end": 19269,
"labels": [
"ANALYSIS"
],
"start": 19072,
"text": "Thus, under the said provision, if it was found that an industrial undertaking is formed by reconstruction of business already in existence, then it was entitled to any exemption under Section 15C."
}
},
{
"from_name": null,
"id": "a85f4c7480254a559f527aadd1f257da",
"to_name": null,
"type": null,
"value": {
"end": 19360,
"labels": [
"ANALYSIS"
],
"start": 19270,
"text": "It is in that context the Court was considering the meaning of reconstruction of business."
}
},
{
"from_name": null,
"id": "df2e1b612f84423b9977b8c17f68954c",
"to_name": null,
"type": null,
"value": {
"end": 19438,
"labels": [
"ANALYSIS"
],
"start": 19361,
"text": "On the other hand, the words under Section 80-IC are `substantial expansion'."
}
},
{
"from_name": null,
"id": "2bf524fc96a544caaec12a88d7b6e256",
"to_name": null,
"type": null,
"value": {
"end": 19533,
"labels": [
"ANALYSIS"
],
"start": 19439,
"text": "Thus, discussion contained in the said judgment would have no application to the instant case."
}
},
{
"from_name": null,
"id": "8fcd5bb76a1a4e26bb142d55c7a52d9e",
"to_name": null,
"type": null,
"value": {
"end": 19725,
"labels": [
"ANALYSIS"
],
"start": 19533,
"text": "\n (ii) Insofar as the factum of substantial expansion of the assessee's unit in the Assessment Year 2006-07 is concerned, the same is not subject matter of any controversy in the instant case."
}
},
{
"from_name": null,
"id": "80e7b97130924fd8bf09bc389310787c",
"to_name": null,
"type": null,
"value": {
"end": 19817,
"labels": [
"ANALYSIS"
],
"start": 19726,
"text": "It has been accepted by the Department that assessee had carried out substantial expansion."
}
},
{
"from_name": null,
"id": "7b9e51f12e1946159d8b93d2d038a0e2",
"to_name": null,
"type": null,
"value": {
"end": 19916,
"labels": [
"ANALYSIS"
],
"start": 19818,
"text": "Precisely, for this reason, the AO had allowed deduction for Assessment Years 2006-07 and 2007-08."
}
},
{
"from_name": null,
"id": "a2f59e4dc34c48eda282ea7a753fe1b7",
"to_name": null,
"type": null,
"value": {
"end": 19995,
"labels": [
"ANALYSIS"
],
"start": 19917,
"text": "Therefore, issue is not as to whether there is a substantial expansion or not."
}
},
{
"from_name": null,
"id": "8d2e05d240ef49dd97ab4d4a4e7915d0",
"to_name": null,
"type": null,
"value": {
"end": 20260,
"labels": [
"ANALYSIS"
],
"start": 19996,
"text": "The issue is only as to how a period of ten years is to be calculated, namely, whether those Assessment Years in respect of which deduction under Section 80-IA and Section 80-IB was allowed are to be counted for the purpose of giving deduction under Section 80-IC."
}
},
{
"from_name": null,
"id": "82d0d558ff874c0ba7e124dd1833325e",
"to_name": null,
"type": null,
"value": {
"end": 20440,
"labels": [
"RATIO"
],
"start": 20260,
"text": "\n 14. Thus, we are of the opinion that it was wrong on the part of the AO not to allow deduction to the assessee under Section 80-IC for the Assessment Years 2008-09 and 2009-2010."
}
},
{
"from_name": null,
"id": "ce8bce3b219d4f74a9497b40f3abcf1a",
"to_name": null,
"type": null,
"value": {
"end": 20553,
"labels": [
"RPC"
],
"start": 20441,
"text": "As a result, the judgment of the High Court on this aspect is set aside and the appeals are accordingly allowed."
}
},
{
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"text": ".............................................J.\n (A.K. SIKRI)"
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"text": "NEW DELHI; MAY 18, 2018."
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] | 4,197 | {
"text": " REPORTABLE\n\n IN THE SUPREME COURT OF INDIA\n CIVIL APPELLATE JURISDICTION\n\nCIVIL APPEAL NO(S). 4765-4766 OF 2018\n\nMAHABIR INDUSTRIES .....APPELLANT(S)\n\n VERSUS OF\n .....RESPONDENT(S)\nPRINCIPAL COMMISSIONER\nINCOME TAX\n\n W I T H\nCIVIL APPEAL NO. 4767 OF 2018\n\n J U D G M E N T\n A.K.SIKRI, J.\n A short question of law arises for consideration in these appeals. All the appeals are filed by the same party, namely, Mahabir Industries (hereinafter referred to as the `assessee') in which common respondent is Principal Commissioner of Income Tax (hereinafter referred to as the `Department'). Before stating the question of law, it may be necessary to mention in brief the background under which the said question of law has arisen inasmuch as this background would be an enabling factor in understanding the true ambit and scope of the question of law.\n The assessee manufactures polythene for which it is having its factory in Shimla, Himachal Pradesh. The activity undertaken by the assessee, an industrial undertaking, qualified for exemption from income tax under Section 80-IA of the Income Tax Act (hereinafter referred to as the `Act'). Section 80-IA of the Act provides for deductions in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development etc. if it fulfills the conditions mentioned in sub- section (4) thereof. Such a deduction is of an amount equal to hundred per cent of the profits and gains derived from such business for ten consecutive Assessment Years. In nutshell, those undertakings or enterprises, which fulfill the conditions mentioned in sub-section (4) of Section 80-IA of the Act, are entitled to total deductions of their profits, which means, no tax is payable and the period for which such undertakings or enterprises are exempted from payment of tax is ten consecutive Assessment Years. The assessee admittedly qualified for this deduction which it started availing from the Assessment Year 1998-99. This deduction under Section 80-IA was claimed and allowed for two Assessment Years i.e. 1998-99 and 1999-2000.\n 2. Section 80-IA of the Act was originally introduced in the year 1991 by the Finance (No.2) Act, 1991 w.e.f. April 1, 1991. There were amendments in the Section from time to time. This Section was amended by the Finance Act, 1999 w.e.f. April 1, 2000. Along with this provision, Section 80-IB was also introduced for the first time by the same Finance Act, 1999. This provision allows deduction in respect of profits and gains from certain industrial undertakings other than infrastructure development undertakings.\n Deduction from such profits and gains is of an amount equal to such percentage and for such number of Assessment Years as specified in Section 80-IB. Sub-section (4) of Section 80-IB provides for hundred per cent deduction for a period of five years and thereafter twenty-five per cent. First proviso thereto states that total period of deduction is not to exceed ten consecutive Assessment Years. Second proviso is a specific provision for industries in the North-Eastern Region to which we shall advert to at the appropriate stage. Sub-section (2) enumerates the conditions which are to be fulfilled by such industrial undertakings in order to qualify for deductions from profits and gains under that provision.\n 3. As mentioned above, for the Assessment Years 1998-99 and 1999-2000 (i.e. two Assessment Years), the assessee was allowed deduction under Section 80-IA. From the Assessment Year 2000-01 to Assessment Year 2005-06, the assessee claimed deduction under Section 80-IB.\n 4. Interestingly, another provision in the form of Section 80-IC was inserted by Finance Act, 2003 w.e.f. April 1, 2004. As per this provision, certain undertakings or enterprises in certain special category States are allowed deduction from such profits and gains, as specified in sub-section (3) of Section 80-IC. The provisions of Section 80-IC provided deduction to manufacturing units situated in the State of Sikkim, Himachal Pradesh and Uttaranchal and North-Eastern States. The deduction was provided to new units established in the aforesaid States, and also to existing units in those States if substantial expansion was carried out. The deduction was available @100% for ten Assessment Years for the units located in North-Eastern and in the State of Sikkim and for the units located in Himachal Pradesh, the deduction was available @100% for five years and @25% for next five years. The assessee completed substantial expansion (by investing in new plant and machinery of value more than 50% of the value of plant and machinery already installed as on 1 April, 2005) to the manufacturing unit situated at Baddi, Himachal Pradesh in the Assessment Year 2006-07. In view of the substantial expansion, the accused claimed deduction under Section 80-IC @100% for Assessment Years 2006-07 and 2007- 08, which was also allowed by the Assessing Officer (AO) after passing the order under Section 143(3) of the Act.\n 5. Sub-section (3), as noted above, mentions the period of ten Assessment Years commencing with the initial Assessment Year.\n Sub-section (6) may also be taken note of at this stage which reads as under: \"(6) Notwithstanding anything contained in this Act, no deduction shall be allowed to any undertaking or enterprise under this section, where the total period of deduction inclusive of the period of deduction under this section, or under the second proviso to sub-section (4) of section 80- IB or under section 10C, as the case may be, exceeds ten assessment years.\"\n 6. As noted above, the assessee had carried out substantial expansion in the Assessment Year 2006-07 and, therefore, claimed exemption under Section 80-IC of the Act for Assessment Year 2006-07 onwards. Deductions for the year 2006-07 and 2007-08 were allowed. However, thereafter, deductions for the Assessment Year 2008-09 and Assessment Year 2009-2010 were rejected by the AO on the ground that this was 11th and 12th year of deduction and as per Section 80-IC(6), total deductions under Section 80-IC and Section 80-IB cannot exceed the total period of ten years. Commissioner of Income Tax (Appeals) {CIT(A)} and Income Tax Appellate Tribunal (ITAT) upheld the order of the AO.\n The High Court took up the appeals of the assessee along with other similar enterprises who had claimed the benefits. It framed the following question in those appeals: \"The moot issue involved in these appeals, inter alia, is as to whether an \"undertaking or an enterprise\" (hereinafter referred to as the Unit), established after 7th January, 2003, carrying out \"substantial expansion\" within the specified window period, i.e. between 7.1.2003 and 1.4.2012, would be entitled to deduction on profits @100%, under Section 80-IC of the Income Tax Act. Also, if so, then for what period.\"\n 7. This question has been decided in favour of all the assessees.\n However, insofar as the assessee herein is concerned, keeping in view that there is a ceiling of ten years as stipulated under Section 80-IC(6), the High Court has held that ten years period shall be counted from the Assessment Year 1998-99 when the assessee had claimed deduction for the first time under Section 80-IA and, therefore, deductions for the Assessment Years 2008- 09 and 2009-2010 would not be allowed. This is clear from the following discussion in the High Court judgment: \"46. The moment \"substantial expansion\" is completed as per Section 80-IC (8)(ix), the statutory definition of \"initial assessment year\" [Section 80-IC(8)(v)] comes into play.\nAnd consequently, Section 80-IC(3)(ii) entitles the unit to 100% deduction for five years commencing with completion of \"substantial expansion\", subject to maximum of ten years as per Section 80-IC(6).\n 47. A unit that started operating/existed before 7.1.2003 was entitled to 100% deduction for first five years under Section 80-IB(4). If this unit completes substantial expansion during the window period (7.1.2003 to 31.3.2012), it would be eligible for 100% deduction again for another five years under Section 80-IC(3)(ii), subject to ceiling of ten years as stipulated under Section 80-IC(6).\n 48. Applying the aforesaid interpretation, we find there can be different fact situations, some of which, we have tried to illustrate; (i) a \"Unit\" established prior to 7.1.2003, claiming deduction under Section 80-IB, post insertion of Section 80-IC carries out substantial expansion, would be entitled to deduction only under Section 80-IC, at the admissible percentage, for the remaining period, which in any case when combined, cannot exceed ten years, (ii) just as in the case of the present assessee, a unit established after 7.1.2003, carries out substantial expansion only in the 8th year of its establishment, for the first five years would have already claimed deduction @ 100%; for the 6th and 7th years @ 25%, and then for the period post substantial expansion, in our considered view, the initial year of assessment being in the 8th year, would be entitled for deduction @ 100%, subject to the cap of ten assessment years, (iii) the assessee establishes a unit after January 2003, say in the year 2005-06 and claims deduction under Section 80-IC for the first time in the assessment year 2006-2007 @ 100% of its profits. Thereafter, substantially expands the Unit in the year 2009-10, relevant to Assessment Year 2010-11 can claim deduction @ 100% for next five years subject to the cap of ten assessment years, (iv) an existing unit not claiming any deduction under Section 80-IA, 80-IB or 80-IC substantially expands in the year 2003 and claims deduction under Section 80-IC first time in Assessment Year 2004-2005 and then substantially expands in the year 2007-2008, can claim deduction @ 100% w.e.f. Assessment Year 2008-2009 for next five years, (v) the assessee sets up its unit in the year 2000- 2001, claiming deduction under Section 80-IB till the Assessment Year 2003-2004 and thereafter under Section 80-IC as per law. Carrying out Substantial expansion in the Assessment Year 2004-2005, now claims deduction @ 100% w.e.f. Assessment Year 2004-05 again substantially expands in the Assessment Year 2008-2009 can claim 100% deduction w.e.f. 2008-2009, (vi) the assessee sets up a unit in the year 2005-2006 and does not undergo substantial expansion at all can claim deduction under Section 80-IC.\"\n 8. As can be discerned, all other aspects are decided in favour of the assessees except what is illustrated at (i) and (iv). However, the effect thereof is that insofar as appeals of the assessee herein are concerned, they are dismissed on the ground that it cannot claim deduction under Sections 80-IC, 80-IB or 10C for a period exceeding ten years.\n 9. In this backdrop, the questions of law which have been framed by the assessee in these appeals are the following: \"(a) Whether the Hon'ble High Court was justified in holding that the petitioner was not entitled to deduction under Section 80-IC of the Act by virtue of provision sub-section (6), when the same was not even applicable to the petitioner?\n (b) Whether the Hon'ble High Court was justified in holding that the provisions of Section 80-IC(6) of the Act apply to all the undertaking claiming deduction under Section 80-IB(4) of the Act when 80-IC(6) refers to only those undertakings which are covered by second proviso to Section 80-IB(4)?\n (c) Whether the Hon'ble High Court was justified in holding that the petitioner is not eligible for deduction under Section 80-IC for a period of 10 assessment years when substantial expansion was carried out by the Petitioner and a substantially new unit was claiming deduction under Section 80-IC of the Act?\n (d) Whether the Hon'ble High Court was justified in holding that the petitioner was not entitled to deduction under Section 80-IC of the Act for assessment year 2008-09 and 2009-10 when the total period of deduction of ten years was expiring after assessment year 2009-10?\"\n 10. As can be seen from the reading of paras 46 and 47 of the High Court judgment, it has taken a categorical view that the moment `substantial expansion' is completed as per Section 80-IC(8)(ix), the statutory definition of `initial assessment year' {Section 80- IC(8)(v)} comes into play. As a consequence, Section 80-IC(3)(ii) would entitle the unit to hundred per cent deduction for five years commencing with completion of `substantial expansion' followed by twenty-five per cent deduction for next five years i.e. subject to maximum of ten years. Thus, the High Court accepts that when the substantial expansion is done in a particular Assessment Year and that is made during the period mentioned in sub-section (2) of Section 80-IC, not only benefit admissible under Section 80-IC shall get triggered, the year in which such substantial expansion is completed is to be treated as `initial assessment year'. Having said so, it has put a cap of ten years by invoking the provision of Section 80-IC(6). We have already reproduced the provisions of sub-section (6) of Section 80-IC. As per this provision, no deduction is allowed to any undertaking or enterprise under this Section, where the total period of deduction inclusive of the period of deduction under this Section, or under the second proviso to sub-section (4) of Section 80-IB or under Section 10C, as the case may be, exceeds ten assessment years. The total period of ten years, thus, is to be counted in the following three circumstances: (a) When the deduction has been given under Section 80-IC for a period of ten years, no further deduction is admissible.\n (b) When the deduction is given under second proviso to sub- section (4) of Section 80-IB. The said second proviso reads as under: \"Provided further than in the case of such industries in the North-Eastern Region, as may be notified by the Central Government, the amount of deduction shall be hundred per cent. of profits and gains for a period of ten assessment years, and the total period of deduction shall in such a case not exceed ten assessment years.\"\n This provision pertains to those industries which are in the North-Eastern Region.\n (c) When the deduction is claimed under Section 10C. It is again a special provision in respect of certain industrial undertakings in North-Eastern Region.\n 11. The assessee in the instant case has not got deduction under Section 80-IC for a period of ten years as he started claiming deduction under this provision w.e.f. Assessment Year 2006-07.\n Situation Nos. (b) and (c) mentioned above would not apply to the assessee as it's undertaking/enterprise is not established in North-Eastern Region. It is, thus, clear that the High Court has failed to appreciate that the provisions of Section 80-IC(6) of the Act state that the total period of deduction under Section 80-IC and Section 80-IB cannot exceed ten assessment years only if the manufacturing unit was claiming deduction under second proviso to Section 80-IB(4) of the Act i.e. units located in the North-Eastern State.\n 12. The matter can be looked into from another angle. Under Section 80-IA, deduction is provided to such industrial undertakings or enterprises which are engaged in infrastructure development etc.\n provided they fulfill the conditions mentioned in sub-section (4) thereof. Section 80-IB makes provisions for deduction in respect of those industrial undertakings, other than infrastructure development undertakings, which are enumerated in the said provision. On the other hand, the intention behind Section 80-IC is to grant deduction to the units making new investments in the State by establishing new manufacturing unit or even to the existing manufacturing unit which carried out substantial expansions. The purport behind the three types of deductions specified in Section 80-IA, Section 80-IB and Section 80-IC is, thus, different. Section 80-IC stipulates the period for which hundred per cent deduction is to be given and then deduction at reduced rates is to be given. If the assessee had earlier availed deduction under Section 80-IA and Section 80-IB, that would be of no concern inasmuch as on carrying out substantial expansion, which was carried out and completed in the Assessment Year 2006-07, the assessee became entitled to deduction under Section 80-IC from the initial year. The term `initial year' is referable to the year in which substantial expansion has been completed, which legal position is stated by the High Court itself and even accepted by the Department as it has not challenged that part of the judgment. The inclusion of period for the deduction is availed under Section 80-IA and Section 80-IB, for the purpose of counting ten years, is provided in sub-section (6) of Section 80-IC and it is limited to those industrial undertakings or enterprises which are set-up in the North-Eastern Region. By making specific provision of this kind, the Legislature has shown its intent, namely, where the industry is not located in North- Eastern State, the period for which deduction is availed earlier by an assessee under Section 80-IA and Section 80-IB will not be reckoned for the purpose of availing benefit of deduction under Section 80-IC of the Act.\n 13. Learned counsel for the Revenue could not dispute that sub- section (6) of Section 80-IC would get attracted when the industry is located in the North-Eastern Region. Having faced with this situation, he raised an altogether different argument for consideration by referring to Section 15C of the Income Tax Act, 1922 (hereinafter referred to as the `1922 Act'), which was also a provision which granted exemption from income in respect of newly established industrial undertaking. He submitted that this Court in Textile Machinery Corporation Limited, Calcutta v.\n The Commissioner of Income Tax, West Bengal, Calcutta1 has held that the true test for ascertaining whether industrial undertaking is `formed by reconstruction of business already in existence' (which was the expression used in Section 15C of 1922 Act), is not whether the new industrial undertaking connotes expansion of the existing business of the assessee but whether it is a new and identifiable undertaking separate and distinct from existing business. In fine, the endeavour of learned senior counsel was that the assessee cannot be treated as an industrial undertaking which has reconstructed the business i.e. made substantial expansion. This argument has to be rejected for at least two reasons: 1 (1977) 2 SCC 368 Page 13 of 15 Civil Appeal No(s). 4765-4766 of 2018 & Anr.\n (i) Section 15C of the 1922 Act provided exemption from tax to newly established industrial undertaking if they are not `formed by reconstruction of business already in existence'. Thus, under the said provision, if it was found that an industrial undertaking is formed by reconstruction of business already in existence, then it was entitled to any exemption under Section 15C. It is in that context the Court was considering the meaning of reconstruction of business. On the other hand, the words under Section 80-IC are `substantial expansion'. Thus, discussion contained in the said judgment would have no application to the instant case.\n (ii) Insofar as the factum of substantial expansion of the assessee's unit in the Assessment Year 2006-07 is concerned, the same is not subject matter of any controversy in the instant case. It has been accepted by the Department that assessee had carried out substantial expansion. Precisely, for this reason, the AO had allowed deduction for Assessment Years 2006-07 and 2007-08. Therefore, issue is not as to whether there is a substantial expansion or not. The issue is only as to how a period of ten years is to be calculated, namely, whether those Assessment Years in respect of which deduction under Section 80-IA and Section 80-IB was allowed are to be counted for the purpose of giving deduction under Section 80-IC.\n 14. Thus, we are of the opinion that it was wrong on the part of the AO not to allow deduction to the assessee under Section 80-IC for the Assessment Years 2008-09 and 2009-2010. As a result, the judgment of the High Court on this aspect is set aside and the appeals are accordingly allowed.\n .............................................J.\n (A.K. SIKRI) .............................................J.\n (ASHOK BHUSHAN) NEW DELHI; MAY 18, 2018.\n "
} |
{
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{
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"text": "IN THE COURT OF THE IInd ADDITIONAL SESSIONS\n JUDGE,ROURKELA."
}
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"text": "\n\nPresent:\n\n Smt. Minati Kumari Panda,LL.B.,\n IInd Additional Sessions Judge,\n Rourkela.\n\n Dated, this the 30th day of January, 2014."
}
},
{
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"start": 252,
"text": "\n\n S.T.CASE NO.50/39/12 of 2012-13."
}
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{
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"text": "(Arising out of G.R. Case No.1601 of 2011, corresponding to Biramitrapur P.S. Case No.135\ndated 04.10.2011, committed by the learned S.D.J.M.,Panposh to the Court of Session and\nsubsequently transferred to this Court for disposal according to law.)\n\nState of Odisha ..... Prosecution.\n -versus-\n\n1.Sanjay Rana, aged about 19 years,\n son of Nala Rana.\n\n2.Keshab Rana, aged about 33 years,\n son of Late Banamali Rana.\n\nBoth of Padampur Colony Tola, .... Accused persons.\nP.S.-Biramitrapur, District-Sundargarh.\n\nAppearances: : Sri R.N.Senapati, Addl. P.P.\n For the State\n\nFor the Defence : Sri A.C.Bisoi, Advocates.\n\nDate of Argument : 22nd day of January, 2015."
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"text": "\nDate of Judgment : 30th day of January, 2015."
}
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"start": 1103,
"text": "\n\nOFFENCES UNDER SECTION 302/34 OF INDIAN PENAL CODE, 1860.\n\n J U D G M E N T"
}
},
{
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"labels": [
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],
"start": 1201,
"text": "\n 1. The above named accused persons stand charged under section 302 r/w 34 of the Indian Penal Code, 1860.\n 2."
}
},
{
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"labels": [
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],
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"text": "The case of the prosecution in brief is as follows :- The deceased Hagru Rana is the son of the informant."
}
},
{
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"value": {
"end": 1642,
"labels": [
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],
"start": 1420,
"text": "On 3.10.2011at about 8 P.M. one Keshab Rana (accused) came to the house of the informant and informed his daughter-in-law namely, Chandrika Rana that Hagru was lying with bleeding injuries near the house of one Bama Majhi."
}
},
{
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"text": "On receiving the said information they went to the spot and found the deceased was lying there with bleeding injuries."
}
},
{
"from_name": null,
"id": "e808135ee8bb46029ee49d408b314b5e",
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"value": {
"end": 1833,
"labels": [
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],
"start": 1762,
"text": "They shifted him to the medical, where the doctor declared him as dead."
}
},
{
"from_name": null,
"id": "2f1fcd9efa574c848ffb097c48157e48",
"to_name": null,
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"labels": [
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],
"start": 1834,
"text": "The informant suspected that the accused persons namely, Keshaba Rana and Sanjay Rana have committed murder of his son Hagru Rana on the alleged date."
}
},
{
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"value": {
"end": 2045,
"labels": [
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"start": 1985,
"text": "So, he reported the matter in writing at Kuarmunda Out Post."
}
},
{
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"id": "5ebc834b92e14b6a8a7515afca77ee38",
"to_name": null,
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"value": {
"end": 2208,
"labels": [
"FAC"
],
"start": 2046,
"text": "Basing on his report, SI in-charge of Kuarmunda Out Post entered the fact in the Station Diary Entry No.76 dated 04.10.2011 and took up preliminary investigation."
}
},
{
"from_name": null,
"id": "7b07a1615f7044a791c2489a96d5c417",
"to_name": null,
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"value": {
"end": 2299,
"labels": [
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],
"start": 2209,
"text": "Then he sent the report to I.I.C., Biramitrapur police station for registration of a case."
}
},
{
"from_name": null,
"id": "d97652dd200d4a999572080ec2b52acd",
"to_name": null,
"type": null,
"value": {
"end": 2459,
"labels": [
"FAC"
],
"start": 2300,
"text": "Accordingly, Biramitrapur P.S.Case No. 135 dated 04.10.2011 was registered under section 302/34 of Indian Penal Code and S.I. S.K.Kanhar took up investigation."
}
},
{
"from_name": null,
"id": "e72ff2d15fd146efbfb67eb736f34b9a",
"to_name": null,
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"value": {
"end": 2717,
"labels": [
"FAC"
],
"start": 2460,
"text": "During investigation he visited the spot, examined the informant and other witnesses, seized the weapon of offence on production by accused Sanjay Rana, conducted inquest over the dead body of the deceased and sent the dead body for post-mortem examination."
}
},
{
"from_name": null,
"id": "ca3920295bf847dbbb0c64c899b75ff7",
"to_name": null,
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"value": {
"end": 2925,
"labels": [
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],
"start": 2718,
"text": "After completion of investigation he submitted charge sheet against the accused persons under section 302/34 of Indian Penal Code giving rise to the commitment of the case to the Court of Sessions for trial."
}
},
{
"from_name": null,
"id": "4a804b8f24b54838a71ea7ccd0df9986",
"to_name": null,
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"value": {
"end": 3023,
"labels": [
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],
"start": 2925,
"text": "\n 3. The accused persons denied the prosecution allegation and took the plea of false implication."
}
},
{
"from_name": null,
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"labels": [
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],
"start": 3025,
"text": "4. Hence, the only point for determination is, Whether on 3.10.2011 at about 8 PM on Monday at village Padampur, the accused persons committed murder of the deceased Hagru Rana intentionally, in furtherance of their common intention ?\n 5."
}
},
{
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"FAC"
],
"start": 3264,
"text": "To substantiate the alleged charge, prosecution examined as many as seventeen witnesses and declined to examine rest other charge sheeted witnesses."
}
},
{
"from_name": null,
"id": "3133a2e87bc44c939efa6a0ff9e836ed",
"to_name": null,
"type": null,
"value": {
"end": 3456,
"labels": [
"FAC"
],
"start": 3413,
"text": "It also proved some document in its favour."
}
},
{
"from_name": null,
"id": "6e8bb2f76d0b4db6883601a6ae5d908f",
"to_name": null,
"type": null,
"value": {
"end": 4051,
"labels": [
"FAC"
],
"start": 3457,
"text": "PW.1 is the informant, PW.2 is his daughter-in-law (Bahu); PW.3 Sushil Kumar Sahu, PW.5 Padma @ Palen Tanti, PW.6 Mangal Tanti, PW.7 Bholeswar Rana, PW.10 Hemamalini Rana, P.W.11 Binod Kumar Rout, P.W.12 Prema Rana, P.W.13 Subodh Sha are the independent witnesses; P.W.4 Debraj Singh, P.W.14 Fransis Xess and PW.17 Sankirtan Seth are the witnesses to the seizure; P.W.8 Susanta Rana is a witness to the inquest; P.W.9 Dr. Rajat Ranjan Sudual is the Assistant Surgeon, who had conducted post-mortem over the dead body of the deceased and P.W.16 S.K.Kanhar is the concerned investigating officer."
}
},
{
"from_name": null,
"id": "77d27755d1434a0396ae93e7a373676f",
"to_name": null,
"type": null,
"value": {
"end": 4121,
"labels": [
"FAC"
],
"start": 4052,
"text": "On the other hand the accused persons examined none in their support."
}
},
{
"from_name": null,
"id": "17f454dd80784a7092441de294b4b995",
"to_name": null,
"type": null,
"value": {
"end": 4246,
"labels": [
"ISSUE"
],
"start": 4121,
"text": "\n 6. Before proving the guilt of the accused persons, it is to be seen whether the death of the deceased is homicidal or not."
}
},
{
"from_name": null,
"id": "72bedc66473b4d348dd1a79d671879d1",
"to_name": null,
"type": null,
"value": {
"end": 4361,
"labels": [
"FAC"
],
"start": 4247,
"text": "To prove the same, prosecution replied on the sole evidence of the Medical Officer (P.W.9) Dr.Rajat Ranjan Sudual."
}
},
{
"from_name": null,
"id": "7fd5a135fdc8477ca10c3d8dd0c9b384",
"to_name": null,
"type": null,
"value": {
"end": 4538,
"labels": [
"FAC"
],
"start": 4362,
"text": "He stated that on 4.10.2011 on police requisition he conducted autopsy over the dead body of the deceased and found the eyes to have been closed, conjunctiva pale, cornea hazy."
}
},
{
"from_name": null,
"id": "8edafc84269d4d68ae993f4065d610ce",
"to_name": null,
"type": null,
"value": {
"end": 4582,
"labels": [
"FAC"
],
"start": 4540,
"text": "Mouth partially open, tongue inside teeth."
}
},
{
"from_name": null,
"id": "155c48c06a4b42d4b92f448a16389f3f",
"to_name": null,
"type": null,
"value": {
"end": 4684,
"labels": [
"FAC"
],
"start": 4583,
"text": "Red coloured bleeding staining present on the posterior of scalp, neck, shoulder and on left buttock."
}
},
{
"from_name": null,
"id": "ef588f8cbd904614b3784bf943c7caf9",
"to_name": null,
"type": null,
"value": {
"end": 4723,
"labels": [
"FAC"
],
"start": 4685,
"text": "But he did not find any ligature mark."
}
},
{
"from_name": null,
"id": "5965810889be41b79cb8f03e967e6151",
"to_name": null,
"type": null,
"value": {
"end": 4843,
"labels": [
"FAC"
],
"start": 4724,
"text": "His evidence revealed that during his examination, he found external injuries such as multiple chop wounds on the body."
}
},
{
"from_name": null,
"id": "f97061cbac1348989ceeaee624e154a6",
"to_name": null,
"type": null,
"value": {
"end": 4913,
"labels": [
"FAC"
],
"start": 4844,
"text": "All are fresh and ante mortem in nature and similar in age character."
}
},
{
"from_name": null,
"id": "bd91e6f26eb94ca9bd49be3f8507a5c1",
"to_name": null,
"type": null,
"value": {
"end": 5401,
"labels": [
"FAC"
],
"start": 4914,
"text": "Those are (i) Chop wound of 2 \" length, mild obliquely placed to the transverse plane (right end 1 cm at higher level than the left end) present on the middle occipital area width of the wound was \", depth 1\" and into the brain matter (ii) Chop wound of length 3\" placed above downward on the right Parieto occipital area,width \" and depth 1\" incising through brain matter (iii) chop wound of 2 \" long x \" width, 1 depth placed transversely on the left temporal area above the ear canal."
}
},
{
"from_name": null,
"id": "63998f0a5ce745f1869314e55bffeb55",
"to_name": null,
"type": null,
"value": {
"end": 5610,
"labels": [
"FAC"
],
"start": 5402,
"text": "The sub scalp area of the above mentioned three wounds and the cranial cavity contains ante mortem blood clots (iv) chop wound 2\" x \" width x 1\" deep present on the upper medial side of gluital (left) region."
}
},
{
"from_name": null,
"id": "1f27f5f5fe8247be87dae889b8e8cd43",
"to_name": null,
"type": null,
"value": {
"end": 5641,
"labels": [
"FAC"
],
"start": 5611,
"text": "It has chopped the illum bone."
}
},
{
"from_name": null,
"id": "f84ffe9d0fa841d9826674959271ce81",
"to_name": null,
"type": null,
"value": {
"end": 5680,
"labels": [
"FAC"
],
"start": 5642,
"text": "Blood and clots present in the margin."
}
},
{
"from_name": null,
"id": "6107b322d0be490c8cb0b3ce66ab17e0",
"to_name": null,
"type": null,
"value": {
"end": 5817,
"labels": [
"FAC"
],
"start": 5681,
"text": "On internal examination, he also noticed that the stomach had contained approximately 200 ml. of pale white liquid having alcohol smell."
}
},
{
"from_name": null,
"id": "e5589154509b4804b04be1b93a5c1b2b",
"to_name": null,
"type": null,
"value": {
"end": 5951,
"labels": [
"FAC"
],
"start": 5818,
"text": "He opined that the cause of death of the deceased was due to combined effect of coma due to head injury and shock due to haemorrhage."
}
},
{
"from_name": null,
"id": "ac500ed8b92c4bed9867cbe254d369ce",
"to_name": null,
"type": null,
"value": {
"end": 6019,
"labels": [
"FAC"
],
"start": 5952,
"text": "He proved his report as Ext.4 and his signature therein as Ext.4/1."
}
},
{
"from_name": null,
"id": "469ab5d0bd9b433b9b2f5126de5cd26b",
"to_name": null,
"type": null,
"value": {
"end": 6147,
"labels": [
"FAC"
],
"start": 6020,
"text": "So, from the above evidence of P.W.9 and from Ext.4 it is clearly proved that the death of the deceased is homicidal in nature."
}
},
{
"from_name": null,
"id": "3fbdb3feda264560931360d7b636366b",
"to_name": null,
"type": null,
"value": {
"end": 6281,
"labels": [
"ANALYSIS"
],
"start": 6149,
"text": "7. On careful scrutiny of the evidence of all the prosecution witnesses, it appeared that all of them are post occurrence witnesses."
}
},
{
"from_name": null,
"id": "f03ed8eaebef4a6db3c4687ae4a0ebce",
"to_name": null,
"type": null,
"value": {
"end": 6345,
"labels": [
"ANALYSIS"
],
"start": 6281,
"text": "\n None of them have direct knowledge about the alleged incident."
}
},
{
"from_name": null,
"id": "981e00c085f749ffb3126949cd7d1f6a",
"to_name": null,
"type": null,
"value": {
"end": 6439,
"labels": [
"ANALYSIS"
],
"start": 6346,
"text": "None of them had seen the accused persons while committing murder of the deceased Hagru Rana."
}
},
{
"from_name": null,
"id": "e849fc44e912424ea88313b8776d1fa5",
"to_name": null,
"type": null,
"value": {
"end": 6612,
"labels": [
"ANALYSIS"
],
"start": 6440,
"text": "P.W.1, the informant, deposed that on the day of occurrence at about 6 P.M. while he was in his house both the accused persons came to their house and called his son Hagru."
}
},
{
"from_name": null,
"id": "04e69cc3c9e64e08a36f803b72b0ad4f",
"to_name": null,
"type": null,
"value": {
"end": 6709,
"labels": [
"ANALYSIS"
],
"start": 6613,
"text": "Thereafter his son and both the accused persons went to the house of one Palen of their village."
}
},
{
"from_name": null,
"id": "c56493564f774425972bdf18a9ba535c",
"to_name": null,
"type": null,
"value": {
"end": 6903,
"labels": [
"ANALYSIS"
],
"start": 6710,
"text": "After one hour, the accused Keshab Rana came to their house and disclosed before him that they have killed their son Hagru and his dead body was lying near the school building of their village."
}
},
{
"from_name": null,
"id": "a3d6afaa2a6a4d3688c66d405898076e",
"to_name": null,
"type": null,
"value": {
"end": 7003,
"labels": [
"ANALYSIS"
],
"start": 6904,
"text": "So, he went to the spot and found his son Hagru was lying there with multiple injuries on his head."
}
},
{
"from_name": null,
"id": "e3755e77f6384275b1e18baf03d40e10",
"to_name": null,
"type": null,
"value": {
"end": 7163,
"labels": [
"ANALYSIS"
],
"start": 7004,
"text": "They shifted him to Kuarmunda hospital and thereafter they shifted him to Rourkela Government Hospital, but on the way to Rourkela Government Hospital he died."
}
},
{
"from_name": null,
"id": "497ebda42c064c29b639d51013c372a5",
"to_name": null,
"type": null,
"value": {
"end": 7214,
"labels": [
"ANALYSIS"
],
"start": 7164,
"text": "Thereafter he lodged F.I.R. at Kuarmunda Out Post."
}
},
{
"from_name": null,
"id": "2f6a10b3f6974a14bcdea32af6f2265b",
"to_name": null,
"type": null,
"value": {
"end": 7250,
"labels": [
"ANALYSIS"
],
"start": 7215,
"text": "He proved the said F.I.R. as Ext.1."
}
},
{
"from_name": null,
"id": "edb9659f27a9486480f85571c6342199",
"to_name": null,
"type": null,
"value": {
"end": 7381,
"labels": [
"ANALYSIS"
],
"start": 7251,
"text": "In his cross-examination he admitted that on the date of occurrence his son Hagru went to the house of Palen for consuming liquor."
}
},
{
"from_name": null,
"id": "244457c4101f45b58fbceba38cc58cc6",
"to_name": null,
"type": null,
"value": {
"end": 7439,
"labels": [
"ANALYSIS"
],
"start": 7382,
"text": "He had also gone to the house of Palen to consume liquor."
}
},
{
"from_name": null,
"id": "e7a233af853a42aebd458edf6edc72a2",
"to_name": null,
"type": null,
"value": {
"end": 7534,
"labels": [
"ANALYSIS"
],
"start": 7440,
"text": "When he was returning from the house of Palen after taking liquor, he heard that his son died."
}
},
{
"from_name": null,
"id": "a948065821e74cfdadbe920916a6a236",
"to_name": null,
"type": null,
"value": {
"end": 7620,
"labels": [
"ANALYSIS"
],
"start": 7534,
"text": "\nHe categorically stated that he had no direct knowledge about any assault on his son."
}
},
{
"from_name": null,
"id": "f0b78ba8bb454fe7a686970917e174ee",
"to_name": null,
"type": null,
"value": {
"end": 7685,
"labels": [
"ANALYSIS"
],
"start": 7621,
"text": "His evidence fully contradicted the story of the F.I.R.\n(Ext.1)."
}
},
{
"from_name": null,
"id": "80567d39c267405b858632adb7318bb3",
"to_name": null,
"type": null,
"value": {
"end": 7877,
"labels": [
"ANALYSIS"
],
"start": 7686,
"text": "Ext.1 revealed that on the day of occurrence at about 8 P.M. the accused Keshab Rana informed his (informant's) daughter-in-law that his on Hagru was lying near school building with injuries."
}
},
{
"from_name": null,
"id": "8fef6f096bbf4304b03b9ee1bb5a96cb",
"to_name": null,
"type": null,
"value": {
"end": 8050,
"labels": [
"ANALYSIS"
],
"start": 7878,
"text": "P.W.1 in his evidence stated that on the day of occurrence both the accused persons came to their house and called his son Hagru and all of them went to the house of Palen."
}
},
{
"from_name": null,
"id": "8e52326ed3fa4e97a6a422446daf1f1a",
"to_name": null,
"type": null,
"value": {
"end": 8149,
"labels": [
"ANALYSIS"
],
"start": 8051,
"text": "But he had not mentioned the said fact in his F.I.R.\nP.W.2 appears to be the wife of the deceased."
}
},
{
"from_name": null,
"id": "8f5d9d461d0a48de9f5b359c412bea14",
"to_name": null,
"type": null,
"value": {
"end": 8310,
"labels": [
"ANALYSIS"
],
"start": 8150,
"text": "She also corroborated the evidence of P.W.1 and stated that on the date of occurrence both the accused persons came to their house and called her husband Hagru."
}
},
{
"from_name": null,
"id": "17e4e267533b4dc98aa95be081b6f33b",
"to_name": null,
"type": null,
"value": {
"end": 8473,
"labels": [
"ANALYSIS"
],
"start": 8310,
"text": "\nSometimes thereafter the accused Keshab came to their house and told them that they have thrown her husband near the school of their village after assaulting him."
}
},
{
"from_name": null,
"id": "f4ed4da1c56e46639e2ef69727c8aae7",
"to_name": null,
"type": null,
"value": {
"end": 8568,
"labels": [
"ANALYSIS"
],
"start": 8474,
"text": "So, she rushed to the spot and found her husband was lying with multiple injuries on his head."
}
},
{
"from_name": null,
"id": "95bf1c454e2b44afb4d1ba56f0aaeed3",
"to_name": null,
"type": null,
"value": {
"end": 8619,
"labels": [
"ANALYSIS"
],
"start": 8569,
"text": "Thereafter they shifted him to Kuarmunda hospital."
}
},
{
"from_name": null,
"id": "f4a3805d096a4bb4bf0f10fde95a507b",
"to_name": null,
"type": null,
"value": {
"end": 8744,
"labels": [
"ANALYSIS"
],
"start": 8620,
"text": "As his condition became serious, they shifted him to Rourkela Government Hospital, where the doctor declared him to be dead."
}
},
{
"from_name": null,
"id": "7ddcd6b74431413fbf367610e123ae35",
"to_name": null,
"type": null,
"value": {
"end": 8847,
"labels": [
"ANALYSIS"
],
"start": 8745,
"text": "Her cross-examination revealed that she had not seen the accused persons while assaulting her husband."
}
},
{
"from_name": null,
"id": "f7022f9baef5402fb1bf2a51ffdd1ab1",
"to_name": null,
"type": null,
"value": {
"end": 8936,
"labels": [
"ANALYSIS"
],
"start": 8848,
"text": "P.W.3, P.W.5, P.W.6, P.W.7, P.W.10, P.W.11, P.W.12 and P.W.13 are independent witnesses."
}
},
{
"from_name": null,
"id": "817e3907ae94443a96d4b9f3bb50400c",
"to_name": null,
"type": null,
"value": {
"end": 8997,
"labels": [
"ANALYSIS"
],
"start": 8936,
"text": "\nThey have also no direct knowledge about the alleged murder."
}
},
{
"from_name": null,
"id": "d9517951775043dda33b7d1c69ad0715",
"to_name": null,
"type": null,
"value": {
"end": 9064,
"labels": [
"ANALYSIS"
],
"start": 8998,
"text": "P.W.4, P.W.14 and P.W.17 are appeared to be the seizure witnesses."
}
},
{
"from_name": null,
"id": "ae712d393e7342fbae9d6060f3c3cff9",
"to_name": null,
"type": null,
"value": {
"end": 9117,
"labels": [
"ANALYSIS"
],
"start": 9065,
"text": "As such they are also the post occurrence witnesses."
}
},
{
"from_name": null,
"id": "8c15abf3b8634acaa394dd4fc10214f6",
"to_name": null,
"type": null,
"value": {
"end": 9153,
"labels": [
"ANALYSIS"
],
"start": 9118,
"text": "P.W.8 is an witness to the inquest."
}
},
{
"from_name": null,
"id": "851590df12034e6a8ad9a74d99e2081d",
"to_name": null,
"type": null,
"value": {
"end": 9242,
"labels": [
"ANALYSIS"
],
"start": 9154,
"text": "He also categorically stated that he had no direct knowledge about the alleged incident."
}
},
{
"from_name": null,
"id": "a07727fbd2b5444a8ac609290a3651d4",
"to_name": null,
"type": null,
"value": {
"end": 9372,
"labels": [
"ANALYSIS"
],
"start": 9243,
"text": "He stated that on the date of occurrence they received an information that the dead body of the deceased was lying near the spot."
}
},
{
"from_name": null,
"id": "77eb848347914bef8c9888dd06772d21",
"to_name": null,
"type": null,
"value": {
"end": 9436,
"labels": [
"ANALYSIS"
],
"start": 9373,
"text": "So, he alongwith others went to the spot and saw the dead body."
}
},
{
"from_name": null,
"id": "9204a445db614d8fb9c829ff964d91e5",
"to_name": null,
"type": null,
"value": {
"end": 9551,
"labels": [
"ANALYSIS"
],
"start": 9437,
"text": "Police held inquest over the dead body of the deceased in his presence and prepared the inquest report vide Ext.3."
}
},
{
"from_name": null,
"id": "9e5eb929cdbd4384aa76f6b212356419",
"to_name": null,
"type": null,
"value": {
"end": 9744,
"labels": [
"ANALYSIS"
],
"start": 9552,
"text": "In his cross- examination he categorically stated that he had signed on the inquest report at the instance of police and the contents of the said report was not read over and explained to him."
}
},
{
"from_name": null,
"id": "c75f058642cf42638a6dc376ba336356",
"to_name": null,
"type": null,
"value": {
"end": 9857,
"labels": [
"ANALYSIS"
],
"start": 9745,
"text": "P.W.9, is the concerned Medical Officer, who had conducted post mortem over the dead body of the deceased Hagru."
}
},
{
"from_name": null,
"id": "7a239a5a73b6418eb912b9cda023ac31",
"to_name": null,
"type": null,
"value": {
"end": 9935,
"labels": [
"ANALYSIS"
],
"start": 9858,
"text": "P.W.16 is the concerned Investigating Officer, who had investigated the case."
}
},
{
"from_name": null,
"id": "73d406118f4f444b84bb930dac0221d4",
"to_name": null,
"type": null,
"value": {
"end": 9988,
"labels": [
"ANALYSIS"
],
"start": 9936,
"text": "So, both of them are also post occurrence witnesses."
}
},
{
"from_name": null,
"id": "bc8874c891d44ed7a22a5749234a607b",
"to_name": null,
"type": null,
"value": {
"end": 10072,
"labels": [
"ARG_PETITIONER"
],
"start": 9988,
"text": "\n 8. The learned Addl. P.P. argued that the informant is the father of the deceased."
}
},
{
"from_name": null,
"id": "10ee600468e44ffbac70500c3edfe392",
"to_name": null,
"type": null,
"value": {
"end": 10256,
"labels": [
"ARG_PETITIONER"
],
"start": 10073,
"text": "His evidence revealed that both the accused persons had confessed before him that they have killed his son Hagru and his dead body was lying near the school building of their village."
}
},
{
"from_name": null,
"id": "50a0275875a84961be66721ef287ce0a",
"to_name": null,
"type": null,
"value": {
"end": 10793,
"labels": [
"ARG_PETITIONER"
],
"start": 10257,
"text": "As both the accused persons confessed their guilt before the informant and as there is sufficient evidence to the fact that on the day of occurrence at about 6 P.M. both the accused persons came to the house of the informant and called his son Hagru and all of them went to the house of Palen for consuming liquor and thereafter the witnesses found the dead body of the deceased was lying near the school with multiple injuries on his head, it is clearly proved that both the accused persons have committed murder of the deceased Hagru."
}
},
{
"from_name": null,
"id": "bf35341fd5004f6c88212f23e3106167",
"to_name": null,
"type": null,
"value": {
"end": 10873,
"labels": [
"ARG_PETITIONER"
],
"start": 10794,
"text": "He further argued that conviction can be based basing on the solitary evidence."
}
},
{
"from_name": null,
"id": "1c0a44a158a440059d9def8d5fb2c317",
"to_name": null,
"type": null,
"value": {
"end": 11087,
"labels": [
"ARG_PETITIONER"
],
"start": 10874,
"text": "In this case as the informant categorically stated that on the day of occurrence both the accused persons disclosed before him that they have killed his son Hagru, they are not entitled for acquittal in this case."
}
},
{
"from_name": null,
"id": "1ac1094e72ad4fbba1daafd886b29bfe",
"to_name": null,
"type": null,
"value": {
"end": 11269,
"labels": [
"ARG_RESPONDENT"
],
"start": 11088,
"text": "On the other hand learned Advocate for the accused persons contended that, law is well settled in a catina of decisions that no conviction can be based on extra judicial confession."
}
},
{
"from_name": null,
"id": "ddcbade49adf4f3db905b7db46de47eb",
"to_name": null,
"type": null,
"value": {
"end": 11410,
"labels": [
"ARG_RESPONDENT"
],
"start": 11270,
"text": "In the instant case the evidence of the prosecution witnesses are not cogent and trust worthy, as all of them are post occurrence witnesses."
}
},
{
"from_name": null,
"id": "493247ae12a04e069e462ac674c25aca",
"to_name": null,
"type": null,
"value": {
"end": 11484,
"labels": [
"ARG_RESPONDENT"
],
"start": 11411,
"text": "None of the prosecution witnesses stated to have seen the alleged murder."
}
},
{
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"id": "75318c36591547bb91a20c412cf44eb6",
"to_name": null,
"type": null,
"value": {
"end": 11604,
"labels": [
"ARG_RESPONDENT"
],
"start": 11485,
"text": "There is also no chain of circumstances which lead to guilt of the accused persons for commission of the alleged crime."
}
},
{
"from_name": null,
"id": "672944a395f84147987b06823abc933c",
"to_name": null,
"type": null,
"value": {
"end": 11805,
"labels": [
"ANALYSIS"
],
"start": 11604,
"text": "\nAdmittedly, extra judicial confession is a very weak piece of evidence and conviction cannot be based only on extra judicial confession without any corroboration by any cogent and convincing evidence."
}
},
{
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"id": "a5eb01f9012a440d95373fe2847220c8",
"to_name": null,
"type": null,
"value": {
"end": 12005,
"labels": [
"RATIO"
],
"start": 11805,
"text": "\n 9. On through scrutiny of the evidence of all the prosecution witnesses I did not find any material to connect the accused persons for their involvement in the commission of murder of the deceased."
}
},
{
"from_name": null,
"id": "5c32ee3fe0d64d9ea1faf44efa48e54b",
"to_name": null,
"type": null,
"value": {
"end": 12071,
"labels": [
"RATIO"
],
"start": 12006,
"text": "No other evidence was also found on the record to prove the same."
}
},
{
"from_name": null,
"id": "609df4813c934641a27316b14a1a3af3",
"to_name": null,
"type": null,
"value": {
"end": 12186,
"labels": [
"RATIO"
],
"start": 12072,
"text": "Further prosecution also failed to produce the weapon of offence i.e. one axe for identification by the witnesses."
}
},
{
"from_name": null,
"id": "fc29e0fe76664a49a87f0504927211e7",
"to_name": null,
"type": null,
"value": {
"end": 12252,
"labels": [
"RATIO"
],
"start": 12187,
"text": "No explanation was also furnished for non production of the same."
}
},
{
"from_name": null,
"id": "be8837ed90874376ba43091c50f6c6b8",
"to_name": null,
"type": null,
"value": {
"end": 12345,
"labels": [
"RATIO"
],
"start": 12253,
"text": "Due to non production of the seized articles, the alleged seizure is also remained doubtful."
}
},
{
"from_name": null,
"id": "713af43802934aa0bbcc425249b22183",
"to_name": null,
"type": null,
"value": {
"end": 12497,
"labels": [
"RPC"
],
"start": 12347,
"text": "10. In view of my above discussion I held that prosecution miserably failed to prove its case against the accused persons beyond all reasonable doubt."
}
},
{
"from_name": null,
"id": "ffdc29acaa784e89b2dac26a34ecff58",
"to_name": null,
"type": null,
"value": {
"end": 12691,
"labels": [
"RPC"
],
"start": 12498,
"text": "In the result, I found the accused persons not guilty for committing the offences under section 302 r/w 34 of the of Indian Penal Code and acquitted them from the same U/S.235(1) of the Cr.P.C."
}
},
{
"from_name": null,
"id": "2aab52a374b34d428a8c58fe369d116b",
"to_name": null,
"type": null,
"value": {
"end": 12776,
"labels": [
"RPC"
],
"start": 12692,
"text": "They (accused persons) be set at liberty and they be discharged of their bail bonds."
}
},
{
"from_name": null,
"id": "2ace8023b553498a801aa32c94da1569",
"to_name": null,
"type": null,
"value": {
"end": 13111,
"labels": [
"RPC"
],
"start": 12777,
"text": "11. The seized articles, if any, be destroyed four moths after the expiry of period of limitation for preferring appeal, in case of no appeal is preferred and in case of appeal, subject to the order of the Appellate Court Pronounced the judgment in the open Court today, this the 30th day of January, 2015 under my seal and signature."
}
},
{
"from_name": null,
"id": "24faab32350e49c1b45cae6afa78b06c",
"to_name": null,
"type": null,
"value": {
"end": 13231,
"labels": [
"NONE"
],
"start": 13111,
"text": "\n Computerised to my dictation IInd Additional Sessions Judge, and corrected by me. Rourkela."
}
},
{
"from_name": null,
"id": "2f3028fd11f144e4b991433bd1a4c83c",
"to_name": null,
"type": null,
"value": {
"end": 13274,
"labels": [
"NONE"
],
"start": 13231,
"text": "\n IInd Additional Sessions Judge, Rourkela."
}
},
{
"from_name": null,
"id": "051016efb8b84bb9bfc70a56566ddcb3",
"to_name": null,
"type": null,
"value": {
"end": 13435,
"labels": [
"NONE"
],
"start": 13276,
"text": "List of witnesses examined by the prosecution:- PW.1 Sashi Rana PW.2 Chandrika Rana PW.3 Sushil Kumar Sahu PW.4 Dhiraj Singh PW.5 Padma @ Palen Tanti"
}
},
{
"from_name": null,
"id": "fdb08d75215a4289991670be88c98281",
"to_name": null,
"type": null,
"value": {
"end": 13505,
"labels": [
"NONE"
],
"start": 13436,
"text": "PW.6 Mangal Tanti PW.7 Bholeswar Rana PW.8 Susanta Rana P.W.9 "
}
},
{
"from_name": null,
"id": "9293cb39d53442ca8f7721f7dee3bde7",
"to_name": null,
"type": null,
"value": {
"end": 13558,
"labels": [
"NONE"
],
"start": 13505,
"text": "Dr.Rajat Ranjan Sudual P.W.10 Hema Malini Rana P.W.11"
}
},
{
"from_name": null,
"id": "9b774a31647b4020a232b6c6c37e6918",
"to_name": null,
"type": null,
"value": {
"end": 13600,
"labels": [
"NONE"
],
"start": 13559,
"text": "Binod Kumar Rout P.W.12 Prema Rana P.W.13"
}
},
{
"from_name": null,
"id": "f84df9caafde44fdad0ed3feaaf0ad9f",
"to_name": null,
"type": null,
"value": {
"end": 13658,
"labels": [
"NONE"
],
"start": 13601,
"text": "Subodh Sha P.W.14 Fransis Xess P.W.15 Raghaba Rana P.W.16"
}
},
{
"from_name": null,
"id": "f36963cb552548a586d2851918bbd54c",
"to_name": null,
"type": null,
"value": {
"end": 13700,
"labels": [
"NONE"
],
"start": 13659,
"text": "Suresh Kumar Kanra P.W.17 Sankirtan Seth."
}
},
{
"from_name": null,
"id": "9c96e585db1c4ca48df56f850ae10d46",
"to_name": null,
"type": null,
"value": {
"end": 13856,
"labels": [
"NONE"
],
"start": 13702,
"text": "List of witnesses examined on behalf of the defence Nil.\n List of documents marked as Exts. on behalf of Prosecution.\n Ext.1 F.I.R.\n Ext.2 Seizure list."
}
},
{
"from_name": null,
"id": "3165728955164ad183d846c8aa4e8f00",
"to_name": null,
"type": null,
"value": {
"end": 14304,
"labels": [
"NONE"
],
"start": 13856,
"text": "\n Ext.2/1 Signature of P.W.4 on Ext.2.\n Ext.3 Inquest report Ext.3/1 Signature of P.W.8 on Ext.3.\n Ext.4 Post mortem report Ext.4/1 Signature of PW.9 on Ext.4 Ext.5 Querry report Ext.5/1 Signature of P.W.9 in Ext.5 Ext.6 Seizure list Ext.6/1 Signature of P.W.14 in Ext.6 Ext.3/2 Signature of P.W.15 in Ext.3 Ext.2/2 Signature of P.W.16 in Ext.6 Ext.6/2 Signature of P.W.16 in Ext.6 Ext.7 Seizure list Ext.7/1 Signature of P.W.16 in Ext.7 Ext.8"
}
},
{
"from_name": null,
"id": "84622a3947d940e597334ec7d7e5b480",
"to_name": null,
"type": null,
"value": {
"end": 14578,
"labels": [
"NONE"
],
"start": 14306,
"text": "Chemical report Ext.8/1 Signature of P.W.16 in Ext.8 Ext.9 Seizure list Ext.9/1 Signature of P.W.16 in Ext.9 Ext.5/2 Querry report Ext.5/3 Signature of P.W.16 as Ext.5/2 Ext.9/2 Signature of P.W.17 in Ext.9.\n List of documents marked as Exts. on behalf of Defence."
}
},
{
"from_name": null,
"id": "d34a0e8b508e4292bbd55a2b90b200d5",
"to_name": null,
"type": null,
"value": {
"end": 14677,
"labels": [
"NONE"
],
"start": 14594,
"text": "Nil.\n List of material objects marked on behalf of Prosecution.\n Nil."
}
},
{
"from_name": null,
"id": "700068c540d74050bcbaa1301bd559e6",
"to_name": null,
"type": null,
"value": {
"end": 14752,
"labels": [
"NONE"
],
"start": 14679,
"text": "List of material objects marked on behalf of Defence.\n Nil."
}
},
{
"from_name": null,
"id": "f883835924a74d3ca40066db2ad8b3b6",
"to_name": null,
"type": null,
"value": {
"end": 14795,
"labels": [
"NONE"
],
"start": 14752,
"text": "\n IInd Additional Sessions Judge, Rourkela."
}
}
]
}
] | 4,132 | {
"text": "IN THE COURT OF THE IInd ADDITIONAL SESSIONS\n JUDGE,ROURKELA.\n\nPresent:\n\n Smt. Minati Kumari Panda,LL.B.,\n IInd Additional Sessions Judge,\n Rourkela.\n\n Dated, this the 30th day of January, 2014.\n\n S.T.CASE NO.50/39/12 of 2012-13.\n\n(Arising out of G.R. Case No.1601 of 2011, corresponding to Biramitrapur P.S. Case No.135\ndated 04.10.2011, committed by the learned S.D.J.M.,Panposh to the Court of Session and\nsubsequently transferred to this Court for disposal according to law.)\n\nState of Odisha ..... Prosecution.\n -versus-\n\n1.Sanjay Rana, aged about 19 years,\n son of Nala Rana.\n\n2.Keshab Rana, aged about 33 years,\n son of Late Banamali Rana.\n\nBoth of Padampur Colony Tola, .... Accused persons.\nP.S.-Biramitrapur, District-Sundargarh.\n\nAppearances: : Sri R.N.Senapati, Addl. P.P.\n For the State\n\nFor the Defence : Sri A.C.Bisoi, Advocates.\n\nDate of Argument : 22nd day of January, 2015.\nDate of Judgment : 30th day of January, 2015.\n\nOFFENCES UNDER SECTION 302/34 OF INDIAN PENAL CODE, 1860.\n\n J U D G M E N T\n 1. The above named accused persons stand charged under section 302 r/w 34 of the Indian Penal Code, 1860.\n 2. The case of the prosecution in brief is as follows :- The deceased Hagru Rana is the son of the informant. On 3.10.2011at about 8 P.M. one Keshab Rana (accused) came to the house of the informant and informed his daughter-in-law namely, Chandrika Rana that Hagru was lying with bleeding injuries near the house of one Bama Majhi. On receiving the said information they went to the spot and found the deceased was lying there with bleeding injuries. They shifted him to the medical, where the doctor declared him as dead. The informant suspected that the accused persons namely, Keshaba Rana and Sanjay Rana have committed murder of his son Hagru Rana on the alleged date. So, he reported the matter in writing at Kuarmunda Out Post. Basing on his report, SI in-charge of Kuarmunda Out Post entered the fact in the Station Diary Entry No.76 dated 04.10.2011 and took up preliminary investigation. Then he sent the report to I.I.C., Biramitrapur police station for registration of a case. Accordingly, Biramitrapur P.S.Case No. 135 dated 04.10.2011 was registered under section 302/34 of Indian Penal Code and S.I. S.K.Kanhar took up investigation. During investigation he visited the spot, examined the informant and other witnesses, seized the weapon of offence on production by accused Sanjay Rana, conducted inquest over the dead body of the deceased and sent the dead body for post-mortem examination. After completion of investigation he submitted charge sheet against the accused persons under section 302/34 of Indian Penal Code giving rise to the commitment of the case to the Court of Sessions for trial.\n 3. The accused persons denied the prosecution allegation and took the plea of false implication.\n 4. Hence, the only point for determination is, Whether on 3.10.2011 at about 8 PM on Monday at village Padampur, the accused persons committed murder of the deceased Hagru Rana intentionally, in furtherance of their common intention ?\n 5. To substantiate the alleged charge, prosecution examined as many as seventeen witnesses and declined to examine rest other charge sheeted witnesses. It also proved some document in its favour. PW.1 is the informant, PW.2 is his daughter-in-law (Bahu); PW.3 Sushil Kumar Sahu, PW.5 Padma @ Palen Tanti, PW.6 Mangal Tanti, PW.7 Bholeswar Rana, PW.10 Hemamalini Rana, P.W.11 Binod Kumar Rout, P.W.12 Prema Rana, P.W.13 Subodh Sha are the independent witnesses; P.W.4 Debraj Singh, P.W.14 Fransis Xess and PW.17 Sankirtan Seth are the witnesses to the seizure; P.W.8 Susanta Rana is a witness to the inquest; P.W.9 Dr. Rajat Ranjan Sudual is the Assistant Surgeon, who had conducted post-mortem over the dead body of the deceased and P.W.16 S.K.Kanhar is the concerned investigating officer. On the other hand the accused persons examined none in their support.\n 6. Before proving the guilt of the accused persons, it is to be seen whether the death of the deceased is homicidal or not. To prove the same, prosecution replied on the sole evidence of the Medical Officer (P.W.9) Dr.Rajat Ranjan Sudual. He stated that on 4.10.2011 on police requisition he conducted autopsy over the dead body of the deceased and found the eyes to have been closed, conjunctiva pale, cornea hazy.\n Mouth partially open, tongue inside teeth. Red coloured bleeding staining present on the posterior of scalp, neck, shoulder and on left buttock. But he did not find any ligature mark. His evidence revealed that during his examination, he found external injuries such as multiple chop wounds on the body. All are fresh and ante mortem in nature and similar in age character. Those are (i) Chop wound of 2 \" length, mild obliquely placed to the transverse plane (right end 1 cm at higher level than the left end) present on the middle occipital area width of the wound was \", depth 1\" and into the brain matter (ii) Chop wound of length 3\" placed above downward on the right Parieto occipital area,width \" and depth 1\" incising through brain matter (iii) chop wound of 2 \" long x \" width, 1 depth placed transversely on the left temporal area above the ear canal. The sub scalp area of the above mentioned three wounds and the cranial cavity contains ante mortem blood clots (iv) chop wound 2\" x \" width x 1\" deep present on the upper medial side of gluital (left) region. It has chopped the illum bone.\nBlood and clots present in the margin. On internal examination, he also noticed that the stomach had contained approximately 200 ml. of pale white liquid having alcohol smell. He opined that the cause of death of the deceased was due to combined effect of coma due to head injury and shock due to haemorrhage. He proved his report as Ext.4 and his signature therein as Ext.4/1. So, from the above evidence of P.W.9 and from Ext.4 it is clearly proved that the death of the deceased is homicidal in nature.\n 7. On careful scrutiny of the evidence of all the prosecution witnesses, it appeared that all of them are post occurrence witnesses.\n None of them have direct knowledge about the alleged incident. None of them had seen the accused persons while committing murder of the deceased Hagru Rana. P.W.1, the informant, deposed that on the day of occurrence at about 6 P.M. while he was in his house both the accused persons came to their house and called his son Hagru. Thereafter his son and both the accused persons went to the house of one Palen of their village. After one hour, the accused Keshab Rana came to their house and disclosed before him that they have killed their son Hagru and his dead body was lying near the school building of their village. So, he went to the spot and found his son Hagru was lying there with multiple injuries on his head. They shifted him to Kuarmunda hospital and thereafter they shifted him to Rourkela Government Hospital, but on the way to Rourkela Government Hospital he died. Thereafter he lodged F.I.R. at Kuarmunda Out Post. He proved the said F.I.R. as Ext.1. In his cross-examination he admitted that on the date of occurrence his son Hagru went to the house of Palen for consuming liquor. He had also gone to the house of Palen to consume liquor. When he was returning from the house of Palen after taking liquor, he heard that his son died.\nHe categorically stated that he had no direct knowledge about any assault on his son. His evidence fully contradicted the story of the F.I.R.\n(Ext.1). Ext.1 revealed that on the day of occurrence at about 8 P.M. the accused Keshab Rana informed his (informant's) daughter-in-law that his on Hagru was lying near school building with injuries. P.W.1 in his evidence stated that on the day of occurrence both the accused persons came to their house and called his son Hagru and all of them went to the house of Palen. But he had not mentioned the said fact in his F.I.R.\nP.W.2 appears to be the wife of the deceased. She also corroborated the evidence of P.W.1 and stated that on the date of occurrence both the accused persons came to their house and called her husband Hagru.\nSometimes thereafter the accused Keshab came to their house and told them that they have thrown her husband near the school of their village after assaulting him. So, she rushed to the spot and found her husband was lying with multiple injuries on his head. Thereafter they shifted him to Kuarmunda hospital. As his condition became serious, they shifted him to Rourkela Government Hospital, where the doctor declared him to be dead. Her cross-examination revealed that she had not seen the accused persons while assaulting her husband. P.W.3, P.W.5, P.W.6, P.W.7, P.W.10, P.W.11, P.W.12 and P.W.13 are independent witnesses.\nThey have also no direct knowledge about the alleged murder. P.W.4, P.W.14 and P.W.17 are appeared to be the seizure witnesses. As such they are also the post occurrence witnesses. P.W.8 is an witness to the inquest. He also categorically stated that he had no direct knowledge about the alleged incident. He stated that on the date of occurrence they received an information that the dead body of the deceased was lying near the spot. So, he alongwith others went to the spot and saw the dead body. Police held inquest over the dead body of the deceased in his presence and prepared the inquest report vide Ext.3. In his cross- examination he categorically stated that he had signed on the inquest report at the instance of police and the contents of the said report was not read over and explained to him. P.W.9, is the concerned Medical Officer, who had conducted post mortem over the dead body of the deceased Hagru. P.W.16 is the concerned Investigating Officer, who had investigated the case. So, both of them are also post occurrence witnesses.\n 8. The learned Addl. P.P. argued that the informant is the father of the deceased. His evidence revealed that both the accused persons had confessed before him that they have killed his son Hagru and his dead body was lying near the school building of their village. As both the accused persons confessed their guilt before the informant and as there is sufficient evidence to the fact that on the day of occurrence at about 6 P.M. both the accused persons came to the house of the informant and called his son Hagru and all of them went to the house of Palen for consuming liquor and thereafter the witnesses found the dead body of the deceased was lying near the school with multiple injuries on his head, it is clearly proved that both the accused persons have committed murder of the deceased Hagru. He further argued that conviction can be based basing on the solitary evidence. In this case as the informant categorically stated that on the day of occurrence both the accused persons disclosed before him that they have killed his son Hagru, they are not entitled for acquittal in this case. On the other hand learned Advocate for the accused persons contended that, law is well settled in a catina of decisions that no conviction can be based on extra judicial confession. In the instant case the evidence of the prosecution witnesses are not cogent and trust worthy, as all of them are post occurrence witnesses. None of the prosecution witnesses stated to have seen the alleged murder. There is also no chain of circumstances which lead to guilt of the accused persons for commission of the alleged crime.\nAdmittedly, extra judicial confession is a very weak piece of evidence and conviction cannot be based only on extra judicial confession without any corroboration by any cogent and convincing evidence.\n 9. On through scrutiny of the evidence of all the prosecution witnesses I did not find any material to connect the accused persons for their involvement in the commission of murder of the deceased. No other evidence was also found on the record to prove the same. Further prosecution also failed to produce the weapon of offence i.e. one axe for identification by the witnesses. No explanation was also furnished for non production of the same. Due to non production of the seized articles, the alleged seizure is also remained doubtful.\n 10. In view of my above discussion I held that prosecution miserably failed to prove its case against the accused persons beyond all reasonable doubt. In the result, I found the accused persons not guilty for committing the offences under section 302 r/w 34 of the of Indian Penal Code and acquitted them from the same U/S.235(1) of the Cr.P.C. They (accused persons) be set at liberty and they be discharged of their bail bonds.\n11. The seized articles, if any, be destroyed four moths after the expiry of period of limitation for preferring appeal, in case of no appeal is preferred and in case of appeal, subject to the order of the Appellate Court Pronounced the judgment in the open Court today, this the 30th day of January, 2015 under my seal and signature.\n Computerised to my dictation IInd Additional Sessions Judge, and corrected by me. Rourkela.\n IInd Additional Sessions Judge, Rourkela.\n List of witnesses examined by the prosecution:- PW.1 Sashi Rana PW.2 Chandrika Rana PW.3 Sushil Kumar Sahu PW.4 Dhiraj Singh PW.5 Padma @ Palen Tanti PW.6 Mangal Tanti PW.7 Bholeswar Rana PW.8 Susanta Rana P.W.9 Dr.Rajat Ranjan Sudual P.W.10 Hema Malini Rana P.W.11 Binod Kumar Rout P.W.12 Prema Rana P.W.13 Subodh Sha P.W.14 Fransis Xess P.W.15 Raghaba Rana P.W.16 Suresh Kumar Kanra P.W.17 Sankirtan Seth.\n List of witnesses examined on behalf of the defence Nil.\n List of documents marked as Exts. on behalf of Prosecution.\n Ext.1 F.I.R.\n Ext.2 Seizure list.\n Ext.2/1 Signature of P.W.4 on Ext.2.\n Ext.3 Inquest report Ext.3/1 Signature of P.W.8 on Ext.3.\n Ext.4 Post mortem report Ext.4/1 Signature of PW.9 on Ext.4 Ext.5 Querry report Ext.5/1 Signature of P.W.9 in Ext.5 Ext.6 Seizure list Ext.6/1 Signature of P.W.14 in Ext.6 Ext.3/2 Signature of P.W.15 in Ext.3 Ext.2/2 Signature of P.W.16 in Ext.6 Ext.6/2 Signature of P.W.16 in Ext.6 Ext.7 Seizure list Ext.7/1 Signature of P.W.16 in Ext.7 Ext.8 Chemical report Ext.8/1 Signature of P.W.16 in Ext.8 Ext.9 Seizure list Ext.9/1 Signature of P.W.16 in Ext.9 Ext.5/2 Querry report Ext.5/3 Signature of P.W.16 as Ext.5/2 Ext.9/2 Signature of P.W.17 in Ext.9.\n List of documents marked as Exts. on behalf of Defence.\n Nil.\n List of material objects marked on behalf of Prosecution.\n Nil.\n List of material objects marked on behalf of Defence.\n Nil.\n IInd Additional Sessions Judge, Rourkela.\n"
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"text": "IN THE COURT OF VIII ADDL.DISTRICT & SESSIONS\n JUDGE,MYSURU, SITTING: HUNSUR.\n\n "
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}
},
{
"from_name": null,
"id": "99bfaf627ee54511a5d499ec95926897",
"to_name": null,
"type": null,
"value": {
"end": 290,
"labels": [
"PREAMBLE"
],
"start": 251,
"text": "Sessions Judge\n\n Crl."
}
},
{
"from_name": null,
"id": "31abfb024dd04582bdae5910be161d2e",
"to_name": null,
"type": null,
"value": {
"end": 323,
"labels": [
"PREAMBLE"
],
"start": 290,
"text": "Mis.No.1383/2017\n "
}
},
{
"from_name": null,
"id": "1ea25a56e744409e9a6c9c1a7e3c472a",
"to_name": null,
"type": null,
"value": {
"end": 368,
"labels": [
"PREAMBLE"
],
"start": 323,
"text": "Dated 17th day of July 2017\n\nPetitioner/s:- "
}
},
{
"from_name": null,
"id": "e2e64c596e474565bc59dca19edbeaa1",
"to_name": null,
"type": null,
"value": {
"end": 572,
"labels": [
"PREAMBLE"
],
"start": 368,
"text": "Swamy S/o Jailinga,\n Aged about 26 years,\n R/at Mullur villgae,\n Sargur Hobli,\n HD Kote taluk, Mysuru Dist.\n\nRespondent:- (By Sri.KSM, adv.)"
}
},
{
"from_name": null,
"id": "33540985e9bd42e9a3c78b9d96945dcc",
"to_name": null,
"type": null,
"value": {
"end": 633,
"labels": [
"PREAMBLE"
],
"start": 572,
"text": "\n V/s.\n\n State by SHO,"
}
},
{
"from_name": null,
"id": "401311a5edf84ba299e71dbf01562fd8",
"to_name": null,
"type": null,
"value": {
"end": 694,
"labels": [
"PREAMBLE"
],
"start": 650,
"text": "Sargur P.S., HD Kote taluk\n\n "
}
},
{
"from_name": null,
"id": "edbd460465e04834845857a234d6647d",
"to_name": null,
"type": null,
"value": {
"end": 791,
"labels": [
"PREAMBLE"
],
"start": 694,
"text": "(By Public Prosecutor)\n\n ORDERS ON THE BAIL APPLICATION FILED UNDER SECTION 438 OF Cr.P.C.\n "
}
},
{
"from_name": null,
"id": "bd7135db87674a7694cc518bf5deae26",
"to_name": null,
"type": null,
"value": {
"end": 977,
"labels": [
"FAC"
],
"start": 791,
"text": "This is a petition filed by the petitioner U/S. 438 of Cr.P.C. seeking grant of bail for the offences U/S. 32 and 34 of Karnataka Excise Act in connection with Sargur P.S. Cr.No.78/2017."
}
},
{
"from_name": null,
"id": "53e1aa64b0184ed08e7039b44a7682c8",
"to_name": null,
"type": null,
"value": {
"end": 1046,
"labels": [
"FAC"
],
"start": 979,
"text": "2. The Public Prosecutor opposed the petition by filing objections."
}
},
{
"from_name": null,
"id": "a8bd2ed8c4c24608b736c5aab43914cc",
"to_name": null,
"type": null,
"value": {
"end": 1219,
"labels": [
"NONE"
],
"start": 1048,
"text": "3. Heard both sides.\n 4. Perused the contents of bail petition, objection, FIR, complaint, case diary and other materials on record in the light of submission of counsels."
}
},
{
"from_name": null,
"id": "75c9a944a59e4070b754dc59ab695a6d",
"to_name": null,
"type": null,
"value": {
"end": 1387,
"labels": [
"ISSUE"
],
"start": 1220,
"text": "The points that arise for consideration of this court are: 1. Whether the petitioner had made out reasonable and acceptable grounds for grant of bail ?\n 2. What order?"
}
},
{
"from_name": null,
"id": "b438a1710362466f97c4a58efaaa4be8",
"to_name": null,
"type": null,
"value": {
"end": 1473,
"labels": [
"ANALYSIS"
],
"start": 1387,
"text": "\n 5. My answers to the above points are as here under: Point No.1: In the Affirmative."
}
},
{
"from_name": null,
"id": "1e24df780d54494088da8cede0dbee9c",
"to_name": null,
"type": null,
"value": {
"end": 1527,
"labels": [
"ANALYSIS"
],
"start": 1473,
"text": "\n Point No.2: As per order REASONS 6."
}
},
{
"from_name": null,
"id": "0ce646f63af04044969cdf7513a9fde7",
"to_name": null,
"type": null,
"value": {
"end": 1539,
"labels": [
"ANALYSIS"
],
"start": 1528,
"text": "Point No.1:"
}
},
{
"from_name": null,
"id": "b95ad254abcf401897c5a600a442492f",
"to_name": null,
"type": null,
"value": {
"end": 1705,
"labels": [
"ANALYSIS"
],
"start": 1540,
"text": "Sargur Police registered the above crime for the offence punishable U/S. 32, 34 of Karnataka Excise Act against petitioner on the basis of complaint of Madappa, PSI."
}
},
{
"from_name": null,
"id": "c7af162a33bc4209ae8244be7999227b",
"to_name": null,
"type": null,
"value": {
"end": 2246,
"labels": [
"FAC"
],
"start": 1706,
"text": "It is alleged in the complaint that, on 27.6.2017 the complainant and other police constables who were on official duty to apprehend the accused who was charged for the offence U/S. 302 IPC and other offences in Cr.No.77/2017, while they were searching for the accused at Halasur,Chamalapura, Mullur and Dadadahalli villages at 5.00 p.m. when they reached mullur- chamalapura village near a channel, they found a person carrying a plastic bag on a motorbike and on seeing them he had left the bag and motor bike and ran away from the place."
}
},
{
"from_name": null,
"id": "6f1a780f690f48fe807dd3d0064860b4",
"to_name": null,
"type": null,
"value": {
"end": 2346,
"labels": [
"FAC"
],
"start": 2247,
"text": "Complainant and other police constables made attempt to apprehend him , but they could not succeed."
}
},
{
"from_name": null,
"id": "57a5f010a8e941a9b1e13dc707148e47",
"to_name": null,
"type": null,
"value": {
"end": 2397,
"labels": [
"FAC"
],
"start": 2347,
"text": "On opening the said plastic bag, they found 90 ml."
}
},
{
"from_name": null,
"id": "e84acfc9dab844948262b2d2e63a1d37",
"to_name": null,
"type": null,
"value": {
"end": 2445,
"labels": [
"FAC"
],
"start": 2397,
"text": "\noriginal choice deluxe whisky 2 pouches, 90 ml."
}
},
{
"from_name": null,
"id": "3b792945d8934bb3b238073967dcb464",
"to_name": null,
"type": null,
"value": {
"end": 2480,
"labels": [
"FAC"
],
"start": 2446,
"text": "Windsor whisky 16 pouches, 180 ml."
}
},
{
"from_name": null,
"id": "4226df5708524437b7c2f72f2d31aca5",
"to_name": null,
"type": null,
"value": {
"end": 2535,
"labels": [
"FAC"
],
"start": 2481,
"text": "Windsor whisky 8 pouches, old tavern whisky 3 pouches."
}
},
{
"from_name": null,
"id": "9456fae96a6c49a2b2cfe8927db79e58",
"to_name": null,
"type": null,
"value": {
"end": 2728,
"labels": [
"FAC"
],
"start": 2536,
"text": "On further enquiry they came to know that the name of the said person is Swamy S/o Jayalinga of Mullur village and he was doing the sale of illicit liquor without any permit on a higher price."
}
},
{
"from_name": null,
"id": "16fc741d390849d0b60ec705e6c14fad",
"to_name": null,
"type": null,
"value": {
"end": 2872,
"labels": [
"FAC"
],
"start": 2728,
"text": "\nThe complainant immediately by drawing the mahazar has seized the articles and thereafter filed the complaint before the jurisdictional police."
}
},
{
"from_name": null,
"id": "76335cf4886e4c559ff7bf7c04e8f974",
"to_name": null,
"type": null,
"value": {
"end": 3015,
"labels": [
"ARG_PETITIONER"
],
"start": 2872,
"text": "\n 7. The counsel for petitioner submits that the allegations made in the complaint are baseless and false complaint has been filed against him."
}
},
{
"from_name": null,
"id": "c27496920b3c4beeba1a947070aaa506",
"to_name": null,
"type": null,
"value": {
"end": 3094,
"labels": [
"ARG_PETITIONER"
],
"start": 3016,
"text": "He is innocent, law abiding citizen and has not committed the offence alleged."
}
},
{
"from_name": null,
"id": "b12ea62b71284b958219bf87b1e60656",
"to_name": null,
"type": null,
"value": {
"end": 3138,
"labels": [
"ARG_PETITIONER"
],
"start": 3095,
"text": "The petitioner is resident of Sargur Hobli."
}
},
{
"from_name": null,
"id": "318b2d9472e0431b94588a2fc3926444",
"to_name": null,
"type": null,
"value": {
"end": 3186,
"labels": [
"ARG_PETITIONER"
],
"start": 3139,
"text": "The petitioner apprehends his arrest by police."
}
},
{
"from_name": null,
"id": "fadb8b2340e14e6d898b70f66be11a5b",
"to_name": null,
"type": null,
"value": {
"end": 3277,
"labels": [
"ARG_PETITIONER"
],
"start": 3187,
"text": "The petitioner is ready and willing to abide by the conditions that may be imposed on him."
}
},
{
"from_name": null,
"id": "ff2271ceffe74a7bbf845be9d67ce1e5",
"to_name": null,
"type": null,
"value": {
"end": 3322,
"labels": [
"ARG_PETITIONER"
],
"start": 3277,
"text": "\nTherefore, prayed for allowing the petition."
}
},
{
"from_name": null,
"id": "965267134ad743278de1c46c1c4a6b5e",
"to_name": null,
"type": null,
"value": {
"end": 3466,
"labels": [
"ARG_RESPONDENT"
],
"start": 3322,
"text": "\n 8. On the other hand, the learned prosecutor submitted that the police have registered the case against the petitioner U/S. 32, 34 of K.E.Act."
}
},
{
"from_name": null,
"id": "dcb2b7f627314196bf1adf81c89fb287",
"to_name": null,
"type": null,
"value": {
"end": 3505,
"labels": [
"ARG_RESPONDENT"
],
"start": 3467,
"text": "The offences alleged are non bailable."
}
},
{
"from_name": null,
"id": "21b5306aa57045b9a8a301dc40d0c178",
"to_name": null,
"type": null,
"value": {
"end": 3535,
"labels": [
"ARG_RESPONDENT"
],
"start": 3506,
"text": "The petitioner is absconding."
}
},
{
"from_name": null,
"id": "c24db13eae0544f09b0db74659bef9e0",
"to_name": null,
"type": null,
"value": {
"end": 3568,
"labels": [
"ARG_RESPONDENT"
],
"start": 3536,
"text": "Investigation is under progress."
}
},
{
"from_name": null,
"id": "95c86472c6a6455dba2f5818f90949c2",
"to_name": null,
"type": null,
"value": {
"end": 3696,
"labels": [
"ARG_RESPONDENT"
],
"start": 3569,
"text": "If the petitioner is released on bail he may commit similar offence, he will come in the way of trial , tampering of witnesses."
}
},
{
"from_name": null,
"id": "2866de97d0ea4b9cbae0cb5eda0ea61e",
"to_name": null,
"type": null,
"value": {
"end": 3738,
"labels": [
"ARG_RESPONDENT"
],
"start": 3697,
"text": "Therefore, prayed for rejecting the bail."
}
},
{
"from_name": null,
"id": "33488c3b36584cc2b6d26feac84b017b",
"to_name": null,
"type": null,
"value": {
"end": 3837,
"labels": [
"STA"
],
"start": 3738,
"text": "\n 9. Right to life and liberty is a fundamental right guaranteed by Article 21 of the constitution."
}
},
{
"from_name": null,
"id": "e9a90696f3d9421ab61d7d5215db94a6",
"to_name": null,
"type": null,
"value": {
"end": 3952,
"labels": [
"STA"
],
"start": 3838,
"text": "No person shall be deprived of his life and personal liberty except according to the procedure established by law."
}
},
{
"from_name": null,
"id": "59c23af6a8f74d269bfc09ff88b437ce",
"to_name": null,
"type": null,
"value": {
"end": 4036,
"labels": [
"ANALYSIS"
],
"start": 3952,
"text": "\n 10. It is well settled law that when bail is refused personal liberty is deprived."
}
},
{
"from_name": null,
"id": "55fc88e7a5504075b4d2303be837041f",
"to_name": null,
"type": null,
"value": {
"end": 4119,
"labels": [
"ANALYSIS"
],
"start": 4037,
"text": "Deprivation of personal liberty only when just, reasonable and permissible in law."
}
},
{
"from_name": null,
"id": "4f3bff6c8a61451eb7cf5df5591e852e",
"to_name": null,
"type": null,
"value": {
"end": 4166,
"labels": [
"ANALYSIS"
],
"start": 4120,
"text": "Evidence not to be assessed for grant of bail."
}
},
{
"from_name": null,
"id": "94c1a47b0de6406e8209a04940cf7fc0",
"to_name": null,
"type": null,
"value": {
"end": 4319,
"labels": [
"ANALYSIS"
],
"start": 4166,
"text": "\nFactors for consideration are basic approach, prima-facie case, whether accused readily available for trial, and likely-hood of tampering with evidence."
}
},
{
"from_name": null,
"id": "144f025ef84e44d8ae23ae17cc4a47bb",
"to_name": null,
"type": null,
"value": {
"end": 4460,
"labels": [
"ANALYSIS"
],
"start": 4320,
"text": "Considerations; when case under investigation, investigation over and the chargesheet filed, after conviction at appellate stage, different."
}
},
{
"from_name": null,
"id": "459b79c7dcc6421bbd6b608f9f33cdca",
"to_name": null,
"type": null,
"value": {
"end": 4681,
"labels": [
"ANALYSIS"
],
"start": 4460,
"text": "\n 11. On going through the prosecution papers, offences alleged against the petitioner though are non bailable in nature but are not punishable with death or imprisonment of life and is triable by the Court of Magistrate."
}
},
{
"from_name": null,
"id": "4c022efe5cab404f879ee918b33b4ba5",
"to_name": null,
"type": null,
"value": {
"end": 4768,
"labels": [
"ANALYSIS"
],
"start": 4682,
"text": "Further he is ready and willing to abide by the conditions that may be imposed on him."
}
},
{
"from_name": null,
"id": "4658e79e59fc4852a49df497ee156e00",
"to_name": null,
"type": null,
"value": {
"end": 4973,
"labels": [
"ANALYSIS"
],
"start": 4769,
"text": "The apprehension of prosecution that the petitioner is going to abscond and prolong investigation and possibility of tampering the prosecution witnesses can be safeguarded by imposing suitable conditions."
}
},
{
"from_name": null,
"id": "ef649ef3ad614fa88c2d0a707fc62547",
"to_name": null,
"type": null,
"value": {
"end": 5194,
"labels": [
"RATIO"
],
"start": 4974,
"text": "On looking to the nature, gravity of the offences alleged against the petitioner if by imposing stringent conditions, the petitioner is granted anticipatory bail it would not in any way prejudice the case of prosecution."
}
},
{
"from_name": null,
"id": "ddd59e29af164b3b9eadcc2c44e91225",
"to_name": null,
"type": null,
"value": {
"end": 5294,
"labels": [
"ANALYSIS"
],
"start": 5196,
"text": "Consequently, the point No.1 for consideration is answered in the `Affirmative'.\n Point No.2 : 12."
}
},
{
"from_name": null,
"id": "e56ab62ce89c4925b88d00b192dd23a0",
"to_name": null,
"type": null,
"value": {
"end": 5358,
"labels": [
"RPC"
],
"start": 5295,
"text": "In the result, this court proceed to pass the following:- ORDER"
}
},
{
"from_name": null,
"id": "1fa2a0ceb2fc4087b6b2320ff64e3afc",
"to_name": null,
"type": null,
"value": {
"end": 5435,
"labels": [
"RPC"
],
"start": 5359,
"text": "The petition filed under section 438 of Cr.PC.\n is allowed."
}
},
{
"from_name": null,
"id": "83629fb68f0a4f3ab0e9d40924ff1eb4",
"to_name": null,
"type": null,
"value": {
"end": 5608,
"labels": [
"RPC"
],
"start": 5435,
"text": "\n The petitioner shall be released on bail on executing his self bond of Rs.25,000/- with one surety for likesum in the event of his arrest in Cr.No.78/2017 of Sargur P.S.\n "
}
},
{
"from_name": null,
"id": "c79cb9ac20fc40eb8e8d0af387e5fdc5",
"to_name": null,
"type": null,
"value": {
"end": 5680,
"labels": [
"RPC"
],
"start": 5608,
"text": "The petitioner shall not tamper the prosecution witnesses in any manner."
}
},
{
"from_name": null,
"id": "30d8df360d2d4e16bc2ebf2f35305e6c",
"to_name": null,
"type": null,
"value": {
"end": 5744,
"labels": [
"RPC"
],
"start": 5680,
"text": "\n The petitioner shall co-operate with the investigating agency."
}
},
{
"from_name": null,
"id": "4d8d890d484b41f894342459fd7ac06b",
"to_name": null,
"type": null,
"value": {
"end": 5824,
"labels": [
"RPC"
],
"start": 5745,
"text": "The petitioner shall appear before the IO as and when called for investigation."
}
},
{
"from_name": null,
"id": "30acfe93e51b4cb385f5416f3a5ed6e0",
"to_name": null,
"type": null,
"value": {
"end": 5943,
"labels": [
"RPC"
],
"start": 5824,
"text": "\n The petitioner shall not leave the jurisdiction of trial court till the conclusion of trial without prior permission."
}
},
{
"from_name": null,
"id": "b5b4671a556d43638030e69fb72bfe5e",
"to_name": null,
"type": null,
"value": {
"end": 6096,
"labels": [
"NONE"
],
"start": 5943,
"text": "\n [Dictated to the stenographer, transcribed by her, revised and corrected by me and then pronounced in the open court on this the 17th day of July 2017]"
}
},
{
"from_name": null,
"id": "604d05334d6243e0b24fe43146ffe15f",
"to_name": null,
"type": null,
"value": {
"end": 6177,
"labels": [
"NONE"
],
"start": 6097,
"text": "[B.S.Jayashree], VIII Addl. District & Sessions Judge, Mysuru Sitting at Hunsur."
}
},
{
"from_name": null,
"id": "c1670891eec1428fa95e34211df3cff0",
"to_name": null,
"type": null,
"value": {
"end": 6241,
"labels": [
"RPC"
],
"start": 6179,
"text": "ORDER PRONOUNCED IN THE OPEN COURT (vide separate order) ORDER"
}
},
{
"from_name": null,
"id": "43306899af3d429dad27507bde07ecde",
"to_name": null,
"type": null,
"value": {
"end": 6304,
"labels": [
"RPC"
],
"start": 6242,
"text": "The petition filed under section 438 of Cr.PC.\n is allowed."
}
},
{
"from_name": null,
"id": "4557dadd40224d249e6a2039b17d694d",
"to_name": null,
"type": null,
"value": {
"end": 6477,
"labels": [
"RPC"
],
"start": 6304,
"text": "\n The petitioner shall be released on bail on executing his self bond of Rs.25,000/- with one surety for likesum in the event of his arrest in Cr.No.78/2017 of Sargur P.S.\n "
}
},
{
"from_name": null,
"id": "a620684ee409480893a0a300ed7bc11f",
"to_name": null,
"type": null,
"value": {
"end": 6549,
"labels": [
"RPC"
],
"start": 6477,
"text": "The petitioner shall not tamper the prosecution witnesses in any manner."
}
},
{
"from_name": null,
"id": "8c816db60b4342c3809a994e6ab33284",
"to_name": null,
"type": null,
"value": {
"end": 6613,
"labels": [
"RPC"
],
"start": 6549,
"text": "\n The petitioner shall co-operate with the investigating agency."
}
},
{
"from_name": null,
"id": "948dd9cfb4274e95af629f18c051efd3",
"to_name": null,
"type": null,
"value": {
"end": 6693,
"labels": [
"RPC"
],
"start": 6614,
"text": "The petitioner shall appear before the IO as and when called for investigation."
}
},
{
"from_name": null,
"id": "1c3e36087b024f54ad7c8584cf4bd41c",
"to_name": null,
"type": null,
"value": {
"end": 6814,
"labels": [
"RPC"
],
"start": 6693,
"text": "\n The petitioner shall not leave the jurisdiction of trial court till the conclusion of trial without prior permission.\n "
}
}
]
}
] | 4,113 | {
"text": "IN THE COURT OF VIII ADDL.DISTRICT & SESSIONS\n JUDGE,MYSURU, SITTING: HUNSUR.\n\n Present : B.S.Jayashree,\n LL.M.,\n\n VIII Addl. District &\n Sessions Judge\n\n Crl.Mis.No.1383/2017\n Dated 17th day of July 2017\n\nPetitioner/s:- Swamy S/o Jailinga,\n Aged about 26 years,\n R/at Mullur villgae,\n Sargur Hobli,\n HD Kote taluk, Mysuru Dist.\n\nRespondent:- (By Sri.KSM, adv.)\n V/s.\n\n State by SHO,\n Sargur P.S., HD Kote taluk\n\n (By Public Prosecutor)\n\n ORDERS ON THE BAIL APPLICATION FILED UNDER SECTION 438 OF Cr.P.C.\n This is a petition filed by the petitioner U/S. 438 of Cr.P.C. seeking grant of bail for the offences U/S. 32 and 34 of Karnataka Excise Act in connection with Sargur P.S. Cr.No.78/2017.\n 2. The Public Prosecutor opposed the petition by filing objections.\n 3. Heard both sides.\n 4. Perused the contents of bail petition, objection, FIR, complaint, case diary and other materials on record in the light of submission of counsels. The points that arise for consideration of this court are: 1. Whether the petitioner had made out reasonable and acceptable grounds for grant of bail ?\n 2. What order?\n 5. My answers to the above points are as here under: Point No.1: In the Affirmative.\n Point No.2: As per order REASONS 6. Point No.1: Sargur Police registered the above crime for the offence punishable U/S. 32, 34 of Karnataka Excise Act against petitioner on the basis of complaint of Madappa, PSI. It is alleged in the complaint that, on 27.6.2017 the complainant and other police constables who were on official duty to apprehend the accused who was charged for the offence U/S. 302 IPC and other offences in Cr.No.77/2017, while they were searching for the accused at Halasur,Chamalapura, Mullur and Dadadahalli villages at 5.00 p.m. when they reached mullur- chamalapura village near a channel, they found a person carrying a plastic bag on a motorbike and on seeing them he had left the bag and motor bike and ran away from the place. Complainant and other police constables made attempt to apprehend him , but they could not succeed. On opening the said plastic bag, they found 90 ml.\noriginal choice deluxe whisky 2 pouches, 90 ml. Windsor whisky 16 pouches, 180 ml. Windsor whisky 8 pouches, old tavern whisky 3 pouches. On further enquiry they came to know that the name of the said person is Swamy S/o Jayalinga of Mullur village and he was doing the sale of illicit liquor without any permit on a higher price.\nThe complainant immediately by drawing the mahazar has seized the articles and thereafter filed the complaint before the jurisdictional police.\n 7. The counsel for petitioner submits that the allegations made in the complaint are baseless and false complaint has been filed against him. He is innocent, law abiding citizen and has not committed the offence alleged. The petitioner is resident of Sargur Hobli. The petitioner apprehends his arrest by police. The petitioner is ready and willing to abide by the conditions that may be imposed on him.\nTherefore, prayed for allowing the petition.\n 8. On the other hand, the learned prosecutor submitted that the police have registered the case against the petitioner U/S. 32, 34 of K.E.Act. The offences alleged are non bailable. The petitioner is absconding. Investigation is under progress. If the petitioner is released on bail he may commit similar offence, he will come in the way of trial , tampering of witnesses. Therefore, prayed for rejecting the bail.\n 9. Right to life and liberty is a fundamental right guaranteed by Article 21 of the constitution. No person shall be deprived of his life and personal liberty except according to the procedure established by law.\n 10. It is well settled law that when bail is refused personal liberty is deprived. Deprivation of personal liberty only when just, reasonable and permissible in law. Evidence not to be assessed for grant of bail.\nFactors for consideration are basic approach, prima-facie case, whether accused readily available for trial, and likely-hood of tampering with evidence. Considerations; when case under investigation, investigation over and the chargesheet filed, after conviction at appellate stage, different.\n 11. On going through the prosecution papers, offences alleged against the petitioner though are non bailable in nature but are not punishable with death or imprisonment of life and is triable by the Court of Magistrate. Further he is ready and willing to abide by the conditions that may be imposed on him. The apprehension of prosecution that the petitioner is going to abscond and prolong investigation and possibility of tampering the prosecution witnesses can be safeguarded by imposing suitable conditions. On looking to the nature, gravity of the offences alleged against the petitioner if by imposing stringent conditions, the petitioner is granted anticipatory bail it would not in any way prejudice the case of prosecution.\n Consequently, the point No.1 for consideration is answered in the `Affirmative'.\n Point No.2 : 12. In the result, this court proceed to pass the following:- ORDER The petition filed under section 438 of Cr.PC.\n is allowed.\n The petitioner shall be released on bail on executing his self bond of Rs.25,000/- with one surety for likesum in the event of his arrest in Cr.No.78/2017 of Sargur P.S.\n The petitioner shall not tamper the prosecution witnesses in any manner.\n The petitioner shall co-operate with the investigating agency. The petitioner shall appear before the IO as and when called for investigation.\n The petitioner shall not leave the jurisdiction of trial court till the conclusion of trial without prior permission.\n [Dictated to the stenographer, transcribed by her, revised and corrected by me and then pronounced in the open court on this the 17th day of July 2017] [B.S.Jayashree], VIII Addl. District & Sessions Judge, Mysuru Sitting at Hunsur.\n ORDER PRONOUNCED IN THE OPEN COURT (vide separate order) ORDER The petition filed under section 438 of Cr.PC.\n is allowed.\n The petitioner shall be released on bail on executing his self bond of Rs.25,000/- with one surety for likesum in the event of his arrest in Cr.No.78/2017 of Sargur P.S.\n The petitioner shall not tamper the prosecution witnesses in any manner.\n The petitioner shall co-operate with the investigating agency. The petitioner shall appear before the IO as and when called for investigation.\n The petitioner shall not leave the jurisdiction of trial court till the conclusion of trial without prior permission.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
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"end": 125,
"labels": [
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"start": 0,
"text": "IN THE COURT OF THE PRINCIPAL DISTRICT AND\n SESSIONS JUDGE AT MYSURU\n\nDated this the 6th day of September, 2018"
}
},
{
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"labels": [
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],
"start": 144,
"text": "PRESENT: Sri. S.K.Vantigodi, B.A., LL.B.(Spl.),\n Prl."
}
},
{
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"id": "afa3661296b1412a8a13e359fa4988ac",
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"text": "District & Sessions Judge,"
}
},
{
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"value": {
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"start": 257,
"text": "\n Mysuru."
}
},
{
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"text": "***\n\n**\n\n "
}
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{
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"value": {
"end": 736,
"labels": [
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],
"start": 381,
"text": "Crl.Misc. No.1499/2018\n\nPetitioners 1. Ravi S/o late Doreswamy, aged\n\n about 30 years, R/at\n\n Helavarahundi Village,\n\n T.Narasipura Taluk, Mysuru District.\n\n 2. Harish @ Dinesh S/o\n\n Mahabaleshwara Gowda, aged\n\n about 27 years, R/"
}
},
{
"from_name": null,
"id": "a36dee1d9f9e4956b88fc433bc64bfad",
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"value": {
"end": 786,
"labels": [
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"start": 736,
"text": "at\n\n Asanabelumane Village, Agumbe"
}
},
{
"from_name": null,
"id": "4479d602dedb456f9084b29f5d99d783",
"to_name": null,
"type": null,
"value": {
"end": 873,
"labels": [
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],
"start": 805,
"text": "Hobli, Thirthahalli Taluk,\n\n Shivamogga District."
}
},
{
"from_name": null,
"id": "eaab714b58b9432492a9bd593adeedb0",
"to_name": null,
"type": null,
"value": {
"end": 1102,
"labels": [
"PREAMBLE"
],
"start": 892,
"text": "( By Sri. K.S.Nagendra Prasad, Advocate )\n\n Vs.\n\nRespondent: State by Alanahalli Police Station.\n\n ( By learned Public Prosecutor )\n **"
}
},
{
"from_name": null,
"id": "83eb3f09383142228348ae1c2f7ed216",
"to_name": null,
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"value": {
"end": 1131,
"labels": [
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"start": 1102,
"text": "*\n\n O R D E R"
}
},
{
"from_name": null,
"id": "07a6b46929614e26a47880df2f9feeb5",
"to_name": null,
"type": null,
"value": {
"end": 1386,
"labels": [
"FAC"
],
"start": 1133,
"text": "This is a petition filed under Section 439 of Cr.P.C. by the petitioners seeking regular bail in Crime No. 105/2018 of Alanahalli Police Station for the offences punishable under Section 3, 4, 5 and 6 of I.T.P. Act, 1956 and Section 370(3) of I.P.C.\n 2."
}
},
{
"from_name": null,
"id": "432e7c5d46e74e5a9aed6d5ea7cf7b16",
"to_name": null,
"type": null,
"value": {
"end": 1654,
"labels": [
"FAC"
],
"start": 1387,
"text": "In brief, the averments of the petition are as under: On the basis of the complaint filed by one Sandeep.J., son of Jagadish, Creative Head of Prathidwani T.V., the respondent/Police have registered a case against the petitioners herein for the above said offences.\n "
}
},
{
"from_name": null,
"id": "fe9be0f680dd48daa1844ce859a4adcd",
"to_name": null,
"type": null,
"value": {
"end": 1964,
"labels": [
"FAC"
],
"start": 1654,
"text": "In the complaint, it is alleged that, on 04.08.2018 at about 04.45 p.m., when himself and his colleagues knocked the door of the House No.152 situated at Nadanahalli Village of T.Narasipura Taluk, two persons opened the door and when they entered the house, they found one male and a female in naked position.\n"
}
},
{
"from_name": null,
"id": "bc7d775bb41e4c839e3bf01629062518",
"to_name": null,
"type": null,
"value": {
"end": 2064,
"labels": [
"FAC"
],
"start": 1964,
"text": "When they told to wear the clothes, the said male person ran away from that place through back door."
}
},
{
"from_name": null,
"id": "42c1da26a0d147729e615f0ae17c231b",
"to_name": null,
"type": null,
"value": {
"end": 2235,
"labels": [
"FAC"
],
"start": 2065,
"text": "On coming to know that it is a immoral traffic offence, they informed to Vodanadi Institute and also their higher ups to lodge a complaint with the Jurisdictional Police."
}
},
{
"from_name": null,
"id": "ebf18bf07a1e47358cfc6799a1238b67",
"to_name": null,
"type": null,
"value": {
"end": 2382,
"labels": [
"FAC"
],
"start": 2236,
"text": "When enquired the lady who was present there, she told the name of one Harish i.e. petitioner No.2 herein and called him over phone to come there."
}
},
{
"from_name": null,
"id": "c91c413c70e7450389a76b6a6ae781c7",
"to_name": null,
"type": null,
"value": {
"end": 2406,
"labels": [
"FAC"
],
"start": 2383,
"text": "But he did not turn up."
}
},
{
"from_name": null,
"id": "04bd862be09345068e6a19751434c232",
"to_name": null,
"type": null,
"value": {
"end": 2533,
"labels": [
"FAC"
],
"start": 2406,
"text": "\nThen on enquiry, they came to know that one Ravi i.e. petitioner No.1 herein has also involved in the said immoral activities."
}
},
{
"from_name": null,
"id": "a60457eee0e2437e95538b836ca694cd",
"to_name": null,
"type": null,
"value": {
"end": 2643,
"labels": [
"FAC"
],
"start": 2534,
"text": "As such, prayed to take action against the said persons who involved in the commission of immoral activities."
}
},
{
"from_name": null,
"id": "89352bf457c64b9b8267e1c260ed0d74",
"to_name": null,
"type": null,
"value": {
"end": 2827,
"labels": [
"FAC"
],
"start": 2643,
"text": "\n 3. On the basis of such complaint filed by the complainant, the respondent/Police have registered a case in Crime No.105/2018 for the above said offences and commenced investigation."
}
},
{
"from_name": null,
"id": "89da5fda64cf4a359e16fec4651ce8a9",
"to_name": null,
"type": null,
"value": {
"end": 2958,
"labels": [
"FAC"
],
"start": 2828,
"text": "During investigation, the respondent/Police arrested these petitioners on 26.08.2018 and since then, they are in judicial custody."
}
},
{
"from_name": null,
"id": "0ca64285a14f45068e26538ed1544480",
"to_name": null,
"type": null,
"value": {
"end": 3024,
"labels": [
"FAC"
],
"start": 2959,
"text": "Hence, they have come up with this petition seeking regular bail."
}
},
{
"from_name": null,
"id": "aef5ceabfe824a1da2b9ee90bf48ab7a",
"to_name": null,
"type": null,
"value": {
"end": 3187,
"labels": [
"ARG_PETITIONER"
],
"start": 3024,
"text": "\n 4. It is now contended by the petitioners that, they are innocents and law abiding citizens and they have not committed any such offence as alleged against them."
}
},
{
"from_name": null,
"id": "c2ea34f274db497fa324b3131166ea17",
"to_name": null,
"type": null,
"value": {
"end": 3254,
"labels": [
"ARG_PETITIONER"
],
"start": 3188,
"text": "On the basis of statement of victim girl, they have been arrested."
}
},
{
"from_name": null,
"id": "9b253c4ea5974d26baa5cd1cd3124caf",
"to_name": null,
"type": null,
"value": {
"end": 3291,
"labels": [
"ARG_PETITIONER"
],
"start": 3255,
"text": "They are strangers to the said girl."
}
},
{
"from_name": null,
"id": "100a27dd7e3749ce9d67b7645c8f4a07",
"to_name": null,
"type": null,
"value": {
"end": 3411,
"labels": [
"ARG_PETITIONER"
],
"start": 3292,
"text": "As the TV media persons pressurized the respondent/Police, these petitioners have been falsely implicated in this case."
}
},
{
"from_name": null,
"id": "71c1c121ed2b46f181074c7a15cad717",
"to_name": null,
"type": null,
"value": {
"end": 3498,
"labels": [
"ARG_PETITIONER"
],
"start": 3412,
"text": "There is a delay of 8 hours in lodging the complaint, which is not properly explained."
}
},
{
"from_name": null,
"id": "9df361b7c40f4e6199144ae908b017b8",
"to_name": null,
"type": null,
"value": {
"end": 3719,
"labels": [
"ARG_PETITIONER"
],
"start": 3499,
"text": "The ingredients of the offences alleged are not attracted because the petitioners not at all keeping a brothel or allowing their premises to be used as brothel and they are not living on the earnings of the prostitution."
}
},
{
"from_name": null,
"id": "1b930ff5a9314609a3f23fa56711f318",
"to_name": null,
"type": null,
"value": {
"end": 3827,
"labels": [
"ARG_PETITIONER"
],
"start": 3720,
"text": "Both these petitioners are strangers to each other and they are permanent residents of different districts."
}
},
{
"from_name": null,
"id": "e0528c35331146ec9f9eab69bae0e189",
"to_name": null,
"type": null,
"value": {
"end": 3976,
"labels": [
"ARG_PETITIONER"
],
"start": 3828,
"text": "Further detention of these petitioners in the judicial custody amounts to pretrial punishment and they are not required for custodial interrogation."
}
},
{
"from_name": null,
"id": "8b82f430c1654bfbaab92eeddc9ffed8",
"to_name": null,
"type": null,
"value": {
"end": 4074,
"labels": [
"ARG_PETITIONER"
],
"start": 3976,
"text": "\nThey are having aged parents, wife and children and are the only earning members in their family."
}
},
{
"from_name": null,
"id": "5a2c11cc01184e369d1a3c3ac15f086e",
"to_name": null,
"type": null,
"value": {
"end": 4117,
"labels": [
"ARG_PETITIONER"
],
"start": 4075,
"text": "They are having deep roots in the society."
}
},
{
"from_name": null,
"id": "8c05a52ab66e46bf85848b8b4addaa1e",
"to_name": null,
"type": null,
"value": {
"end": 4194,
"labels": [
"ARG_PETITIONER"
],
"start": 4118,
"text": "The alleged offences are not punishable with death or imprisonment for life."
}
},
{
"from_name": null,
"id": "aea11f922e5c4e8ba62bed865d069085",
"to_name": null,
"type": null,
"value": {
"end": 4304,
"labels": [
"ARG_PETITIONER"
],
"start": 4195,
"text": "They are ready to abide by any conditions which may be imposed by this Court and assist in the investigation."
}
},
{
"from_name": null,
"id": "d1d0e886488a48daba645abfbee8d578",
"to_name": null,
"type": null,
"value": {
"end": 4341,
"labels": [
"ARG_PETITIONER"
],
"start": 4305,
"text": "Hence, prayed to allow the petition."
}
},
{
"from_name": null,
"id": "05fb1092ddcf41e3a8dd9b53d7aa1ed1",
"to_name": null,
"type": null,
"value": {
"end": 4491,
"labels": [
"ARG_RESPONDENT"
],
"start": 4343,
"text": "5. On the other hand, the learned Public Prosecutor has filed objections contending that the petition is not maintainable either in law or on facts."
}
},
{
"from_name": null,
"id": "2148b49704c64e1584afc595e4d1f783",
"to_name": null,
"type": null,
"value": {
"end": 4607,
"labels": [
"ARG_RESPONDENT"
],
"start": 4492,
"text": "Reiterating the averments of the complaint, it is contended that the offences alleged are heinous and anti- social."
}
},
{
"from_name": null,
"id": "625362a72e524bd0bafcb9e81c38c2d4",
"to_name": null,
"type": null,
"value": {
"end": 4698,
"labels": [
"ARG_RESPONDENT"
],
"start": 4608,
"text": "The records prima facie disclose that the petitioners have committed the offences alleged."
}
},
{
"from_name": null,
"id": "ddabf0277aad49e280f529a79e802ff3",
"to_name": null,
"type": null,
"value": {
"end": 4732,
"labels": [
"ARG_RESPONDENT"
],
"start": 4699,
"text": "The investigation is in progress."
}
},
{
"from_name": null,
"id": "32e1a3b31db042f38e82a22462c7e03f",
"to_name": null,
"type": null,
"value": {
"end": 4855,
"labels": [
"ARG_RESPONDENT"
],
"start": 4733,
"text": "The Investigating Officer has recorded the statement of victim girl and seized mobile and other articles from her custody."
}
},
{
"from_name": null,
"id": "29ede5f5cb6549a5a9d6a14f77288947",
"to_name": null,
"type": null,
"value": {
"end": 4960,
"labels": [
"ARG_RESPONDENT"
],
"start": 4856,
"text": "The I.O. has also arrested these petitioners and another accused and recorded their voluntary statement."
}
},
{
"from_name": null,
"id": "fe83aed2692940a996bf0083704de686",
"to_name": null,
"type": null,
"value": {
"end": 5131,
"labels": [
"ARG_RESPONDENT"
],
"start": 4961,
"text": "If at this stage, the petitioners are granted bail, there is every likelihood of tampering the witnesses, committing similar offences and hampering further investigation."
}
},
{
"from_name": null,
"id": "85ab8382cda64a2595a838ca659d132c",
"to_name": null,
"type": null,
"value": {
"end": 5232,
"labels": [
"ARG_RESPONDENT"
],
"start": 5132,
"text": "The petitioners are influential persons and by using their influence, they may hamper investigation."
}
},
{
"from_name": null,
"id": "188c268e88b84096910a48f543f7d1ce",
"to_name": null,
"type": null,
"value": {
"end": 5271,
"labels": [
"ARG_RESPONDENT"
],
"start": 5233,
"text": "They have no permanent place of abode."
}
},
{
"from_name": null,
"id": "447104c0e5794d90b74e72ce80100e82",
"to_name": null,
"type": null,
"value": {
"end": 5311,
"labels": [
"ARG_RESPONDENT"
],
"start": 5272,
"text": "As such, prayed to reject the petition."
}
},
{
"from_name": null,
"id": "cb64f658572941ada95c46e8b121c86c",
"to_name": null,
"type": null,
"value": {
"end": 5402,
"labels": [
"NONE"
],
"start": 5311,
"text": "\n 6. Heard learned Counsel for the petitioners and learned Public Prosecutor for the State."
}
},
{
"from_name": null,
"id": "cc259b0ff7674e2594f4b536b105ac1d",
"to_name": null,
"type": null,
"value": {
"end": 5423,
"labels": [
"NONE"
],
"start": 5403,
"text": "Perused the records."
}
},
{
"from_name": null,
"id": "75b9af8dd28f4a4dab0268f00c71ffb9",
"to_name": null,
"type": null,
"value": {
"end": 5570,
"labels": [
"ISSUE"
],
"start": 5425,
"text": "7. The points that arise for my consideration are as under: 1. Whether the petitioners are entitled for regular bail as prayed ?\n 2. What order ?"
}
},
{
"from_name": null,
"id": "2789941dd0d2462b830938769d92f20e",
"to_name": null,
"type": null,
"value": {
"end": 5815,
"labels": [
"ANALYSIS"
],
"start": 5570,
"text": "\n 8. My finding on the above points are as under: Point No.(1) :: In the Affirmative Point No.(2) :: As per final order, for the following: REASONS 9. Point No.1: Perused the contents of petition, objections and other materials placed on record."
}
},
{
"from_name": null,
"id": "d8518a7dc5794fa08aa86d025d49cfe9",
"to_name": null,
"type": null,
"value": {
"end": 5937,
"labels": [
"ANALYSIS"
],
"start": 5815,
"text": "\n 10. The petitioners have produced the certified copy of Order- sheet, F.I.R., complaint and also the remand requisition."
}
},
{
"from_name": null,
"id": "3c292874b23a4e70ab7de7ec27c0a6a5",
"to_name": null,
"type": null,
"value": {
"end": 6008,
"labels": [
"ANALYSIS"
],
"start": 5938,
"text": "They have also produced an Authority reported in 2018(2) AKR 129.\n 11."
}
},
{
"from_name": null,
"id": "476e6538abf147529c86b600b7dc0c77",
"to_name": null,
"type": null,
"value": {
"end": 6262,
"labels": [
"ANALYSIS"
],
"start": 6009,
"text": "A perusal of the materials placed before this Court reflects that, the Investigating Officer has already seized the incriminating materials during investigation and the alleged offences are not exclusively punishable with death or imprisonment for life."
}
},
{
"from_name": null,
"id": "27cb20dd28e74b87aa1df513ea1831b0",
"to_name": null,
"type": null,
"value": {
"end": 6409,
"labels": [
"ANALYSIS"
],
"start": 6263,
"text": "Even otherwise, the truth or otherwise of the allegations made in the complaint cannot be ascertained unless a thorough investigation takes place."
}
},
{
"from_name": null,
"id": "cad091bec91a4e429fbe9e5c53e06b19",
"to_name": null,
"type": null,
"value": {
"end": 6506,
"labels": [
"ANALYSIS"
],
"start": 6410,
"text": "Further, the petitioners are in judicial custody since the date of their arrest i.e.\n26.08.2018."
}
},
{
"from_name": null,
"id": "3bb903e58bd04851a9a4f3e10d6d584f",
"to_name": null,
"type": null,
"value": {
"end": 6682,
"labels": [
"ANALYSIS"
],
"start": 6507,
"text": "If the petitioners are detained in custody till conclusion of trial, they may come in contact with hardened criminals and they may turn out to be hardcore criminals in future."
}
},
{
"from_name": null,
"id": "e8c9221506b447c1ad6ec39480d71408",
"to_name": null,
"type": null,
"value": {
"end": 6785,
"labels": [
"ANALYSIS"
],
"start": 6683,
"text": "Further, the detention of these petitioners behind Bars is not required for any investigation purpose."
}
},
{
"from_name": null,
"id": "8339ae11d6644e869851ee4a0a245b36",
"to_name": null,
"type": null,
"value": {
"end": 6916,
"labels": [
"ANALYSIS"
],
"start": 6785,
"text": "\n 13. Even otherwise, the offences alleged though non-bailable, are not exclusively punishable with death or imprisonment for life."
}
},
{
"from_name": null,
"id": "250efefd2f0b40648a2583164df27fe3",
"to_name": null,
"type": null,
"value": {
"end": 7047,
"labels": [
"ANALYSIS"
],
"start": 6917,
"text": "The petitioners are permanent residents of the address shown in the cause-title and there are no any bad antecedents against them."
}
},
{
"from_name": null,
"id": "8eaa67ce2c17498196ec9bc2cc95c16f",
"to_name": null,
"type": null,
"value": {
"end": 7101,
"labels": [
"ANALYSIS"
],
"start": 7048,
"text": "They have also undertaken to abide by any conditions."
}
},
{
"from_name": null,
"id": "b4f6ab57ccf0463b8de39dd6c4723959",
"to_name": null,
"type": null,
"value": {
"end": 7341,
"labels": [
"ANALYSIS"
],
"start": 7102,
"text": "As such, the apprehension of learned Public Prosecutor that, the petitioners, if granted regular bail, would threaten the witnesses, commit similar offences and hamper further investigation, can be met with by putting stringent conditions."
}
},
{
"from_name": null,
"id": "bacc0a16a4624e97b9cea65c2e2b892a",
"to_name": null,
"type": null,
"value": {
"end": 7447,
"labels": [
"RPC"
],
"start": 7342,
"text": "So, considering all these aspects, I feel that, the bail petition deserves to be allowed with conditions."
}
},
{
"from_name": null,
"id": "b53a822d80df4ca381cb52abd035e2a1",
"to_name": null,
"type": null,
"value": {
"end": 7500,
"labels": [
"RPC"
],
"start": 7448,
"text": "Accordingly, I answer point No.1 in the affirmative."
}
},
{
"from_name": null,
"id": "16a3bb130bfb437883a9b2738ebcad69",
"to_name": null,
"type": null,
"value": {
"end": 7517,
"labels": [
"RPC"
],
"start": 7500,
"text": "\n 14. Point No.2:"
}
},
{
"from_name": null,
"id": "38e4644fa62a4ed9a4ba6c00207dda10",
"to_name": null,
"type": null,
"value": {
"end": 7565,
"labels": [
"RPC"
],
"start": 7518,
"text": "In the result, I proceed to pass the following:"
}
},
{
"from_name": null,
"id": "65a25a7cc0574b669eaa1eaa8d7c6134",
"to_name": null,
"type": null,
"value": {
"end": 7653,
"labels": [
"RPC"
],
"start": 7566,
"text": "ORDER Petition filed by the petitioners under Section 439 of Cr.P.C. is hereby allowed."
}
},
{
"from_name": null,
"id": "6880c6a5598346689c483f294cf5cb6e",
"to_name": null,
"type": null,
"value": {
"end": 7785,
"labels": [
"RPC"
],
"start": 7653,
"text": "\n Petitioners are granted bail in Crime No.105/2018 of Alanahalli Police Station, pending on the file of III J.M.F.C. Court, Mysuru."
}
},
{
"from_name": null,
"id": "c018fd3ca8664ee598cd541f21ccfd1c",
"to_name": null,
"type": null,
"value": {
"end": 7927,
"labels": [
"RPC"
],
"start": 7786,
"text": "The Jurisdictional Magistrate is hereby directed to release the petitioners in the said case on bail, subject to the following conditions: 1."
}
},
{
"from_name": null,
"id": "bbecab5220964e17bac8537e102c44c6",
"to_name": null,
"type": null,
"value": {
"end": 8182,
"labels": [
"RPC"
],
"start": 7928,
"text": "The petitioners shall execute personal bond in a sum of Rs.50,000/- (Rupees fifty thousand only) each with one surety for likesum to the satisfaction of the Magistrate for their appearance before I.O./Magistrate and to co-operate for investigation/trial."
}
},
{
"from_name": null,
"id": "277976b7cf2b4ea983fd8a08086385da",
"to_name": null,
"type": null,
"value": {
"end": 8249,
"labels": [
"RPC"
],
"start": 8182,
"text": "\n 2. They shall not tamper or threaten the witnesses in any manner."
}
},
{
"from_name": null,
"id": "cf45eceb939d41a7b1ba7d584b1eef4c",
"to_name": null,
"type": null,
"value": {
"end": 8299,
"labels": [
"RPC"
],
"start": 8249,
"text": "\n 3. They shall not involve in other offences.\n 4."
}
},
{
"from_name": null,
"id": "294f7a7c619a4960b5437c2c61dbbd47",
"to_name": null,
"type": null,
"value": {
"end": 8354,
"labels": [
"RPC"
],
"start": 8300,
"text": "They shall appear before Court regularly without fail."
}
},
{
"from_name": null,
"id": "dafeccaf3a994248bb29ad5a9046c3c2",
"to_name": null,
"type": null,
"value": {
"end": 8538,
"labels": [
"NONE"
],
"start": 8354,
"text": "\n ( Typed to my on-line dictation by the Judgment Writer on Computer and after corrections, signed and then pronounced by me in the open Court on this the 6th day of September, 2018. )"
}
},
{
"from_name": null,
"id": "30288bca23154f29a93546934beedcf8",
"to_name": null,
"type": null,
"value": {
"end": 8596,
"labels": [
"NONE"
],
"start": 8539,
"text": "( S.K.Vantigodi ) Prl. District & Sessions Judge, Mysuru."
}
}
]
}
] | 4,280 | {
"text": "IN THE COURT OF THE PRINCIPAL DISTRICT AND\n SESSIONS JUDGE AT MYSURU\n\nDated this the 6th day of September, 2018\n\n PRESENT: Sri. S.K.Vantigodi, B.A., LL.B.(Spl.),\n Prl.District & Sessions Judge,\n Mysuru.\n\n ***\n\n**\n\n Crl.Misc. No.1499/2018\n\nPetitioners 1. Ravi S/o late Doreswamy, aged\n\n about 30 years, R/at\n\n Helavarahundi Village,\n\n T.Narasipura Taluk, Mysuru District.\n\n 2. Harish @ Dinesh S/o\n\n Mahabaleshwara Gowda, aged\n\n about 27 years, R/at\n\n Asanabelumane Village, Agumbe\n\n Hobli, Thirthahalli Taluk,\n\n Shivamogga District.\n\n ( By Sri. K.S.Nagendra Prasad, Advocate )\n\n Vs.\n\nRespondent: State by Alanahalli Police Station.\n\n ( By learned Public Prosecutor )\n ***\n\n O R D E R\n This is a petition filed under Section 439 of Cr.P.C. by the petitioners seeking regular bail in Crime No. 105/2018 of Alanahalli Police Station for the offences punishable under Section 3, 4, 5 and 6 of I.T.P. Act, 1956 and Section 370(3) of I.P.C.\n 2. In brief, the averments of the petition are as under: On the basis of the complaint filed by one Sandeep.J., son of Jagadish, Creative Head of Prathidwani T.V., the respondent/Police have registered a case against the petitioners herein for the above said offences.\n In the complaint, it is alleged that, on 04.08.2018 at about 04.45 p.m., when himself and his colleagues knocked the door of the House No.152 situated at Nadanahalli Village of T.Narasipura Taluk, two persons opened the door and when they entered the house, they found one male and a female in naked position.\nWhen they told to wear the clothes, the said male person ran away from that place through back door. On coming to know that it is a immoral traffic offence, they informed to Vodanadi Institute and also their higher ups to lodge a complaint with the Jurisdictional Police. When enquired the lady who was present there, she told the name of one Harish i.e. petitioner No.2 herein and called him over phone to come there. But he did not turn up.\nThen on enquiry, they came to know that one Ravi i.e. petitioner No.1 herein has also involved in the said immoral activities. As such, prayed to take action against the said persons who involved in the commission of immoral activities.\n 3. On the basis of such complaint filed by the complainant, the respondent/Police have registered a case in Crime No.105/2018 for the above said offences and commenced investigation. During investigation, the respondent/Police arrested these petitioners on 26.08.2018 and since then, they are in judicial custody. Hence, they have come up with this petition seeking regular bail.\n 4. It is now contended by the petitioners that, they are innocents and law abiding citizens and they have not committed any such offence as alleged against them. On the basis of statement of victim girl, they have been arrested. They are strangers to the said girl. As the TV media persons pressurized the respondent/Police, these petitioners have been falsely implicated in this case. There is a delay of 8 hours in lodging the complaint, which is not properly explained. The ingredients of the offences alleged are not attracted because the petitioners not at all keeping a brothel or allowing their premises to be used as brothel and they are not living on the earnings of the prostitution.\nBoth these petitioners are strangers to each other and they are permanent residents of different districts. Further detention of these petitioners in the judicial custody amounts to pretrial punishment and they are not required for custodial interrogation.\nThey are having aged parents, wife and children and are the only earning members in their family. They are having deep roots in the society. The alleged offences are not punishable with death or imprisonment for life. They are ready to abide by any conditions which may be imposed by this Court and assist in the investigation. Hence, prayed to allow the petition.\n 5. On the other hand, the learned Public Prosecutor has filed objections contending that the petition is not maintainable either in law or on facts. Reiterating the averments of the complaint, it is contended that the offences alleged are heinous and anti- social. The records prima facie disclose that the petitioners have committed the offences alleged. The investigation is in progress.\nThe Investigating Officer has recorded the statement of victim girl and seized mobile and other articles from her custody. The I.O. has also arrested these petitioners and another accused and recorded their voluntary statement. If at this stage, the petitioners are granted bail, there is every likelihood of tampering the witnesses, committing similar offences and hampering further investigation. The petitioners are influential persons and by using their influence, they may hamper investigation. They have no permanent place of abode. As such, prayed to reject the petition.\n 6. Heard learned Counsel for the petitioners and learned Public Prosecutor for the State. Perused the records.\n 7. The points that arise for my consideration are as under: 1. Whether the petitioners are entitled for regular bail as prayed ?\n 2. What order ?\n 8. My finding on the above points are as under: Point No.(1) :: In the Affirmative Point No.(2) :: As per final order, for the following: REASONS 9. Point No.1: Perused the contents of petition, objections and other materials placed on record.\n 10. The petitioners have produced the certified copy of Order- sheet, F.I.R., complaint and also the remand requisition. They have also produced an Authority reported in 2018(2) AKR 129.\n 11. A perusal of the materials placed before this Court reflects that, the Investigating Officer has already seized the incriminating materials during investigation and the alleged offences are not exclusively punishable with death or imprisonment for life. Even otherwise, the truth or otherwise of the allegations made in the complaint cannot be ascertained unless a thorough investigation takes place. Further, the petitioners are in judicial custody since the date of their arrest i.e.\n26.08.2018. If the petitioners are detained in custody till conclusion of trial, they may come in contact with hardened criminals and they may turn out to be hardcore criminals in future. Further, the detention of these petitioners behind Bars is not required for any investigation purpose.\n 13. Even otherwise, the offences alleged though non-bailable, are not exclusively punishable with death or imprisonment for life. The petitioners are permanent residents of the address shown in the cause-title and there are no any bad antecedents against them. They have also undertaken to abide by any conditions. As such, the apprehension of learned Public Prosecutor that, the petitioners, if granted regular bail, would threaten the witnesses, commit similar offences and hamper further investigation, can be met with by putting stringent conditions. So, considering all these aspects, I feel that, the bail petition deserves to be allowed with conditions. Accordingly, I answer point No.1 in the affirmative.\n 14. Point No.2: In the result, I proceed to pass the following: ORDER Petition filed by the petitioners under Section 439 of Cr.P.C. is hereby allowed.\n Petitioners are granted bail in Crime No.105/2018 of Alanahalli Police Station, pending on the file of III J.M.F.C. Court, Mysuru. The Jurisdictional Magistrate is hereby directed to release the petitioners in the said case on bail, subject to the following conditions: 1. The petitioners shall execute personal bond in a sum of Rs.50,000/- (Rupees fifty thousand only) each with one surety for likesum to the satisfaction of the Magistrate for their appearance before I.O./Magistrate and to co-operate for investigation/trial.\n 2. They shall not tamper or threaten the witnesses in any manner.\n 3. They shall not involve in other offences.\n 4. They shall appear before Court regularly without fail.\n ( Typed to my on-line dictation by the Judgment Writer on Computer and after corrections, signed and then pronounced by me in the open Court on this the 6th day of September, 2018. ) ( S.K.Vantigodi ) Prl. District & Sessions Judge, Mysuru.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "6b7999cc3e2f42dc9805036f31d46fa9",
"to_name": null,
"type": null,
"value": {
"end": 115,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE HIGH COURT OF KARNATAKA AT BANGALORE\n\nDATED THIS THE 19TH DAY OF JUNE 2012\n\n BEFORE"
}
},
{
"from_name": null,
"id": "94b2596e8d174345bedbebfbded27afa",
"to_name": null,
"type": null,
"value": {
"end": 156,
"labels": [
"PREAMBLE"
],
"start": 115,
"text": "\n\nTHE HON'BLE MR. JUSTICE ANAND BYRAREDDY"
}
},
{
"from_name": null,
"id": "f31c3673ba6047afbe3883367c029840",
"to_name": null,
"type": null,
"value": {
"end": 207,
"labels": [
"PREAMBLE"
],
"start": 156,
"text": "\n\n CRIMINAL REVISION PETITION No.1307 OF 2005"
}
},
{
"from_name": null,
"id": "fa99aa101a0140f2888ab462b8313fa9",
"to_name": null,
"type": null,
"value": {
"end": 886,
"labels": [
"PREAMBLE"
],
"start": 208,
"text": "BETWEEN :\n\n1. Venkataramanappa,\n Son of Kondappa,\n Aged about 60 years,\n\n2. Rangadhamappa,\n @ Venkataramanappa,\n Son of Kurlappa,\n Aged about 35 years,\n\n3. Krishnappa,\n @ Venkataramanappa,\n Son of Kurlappa,\n Aged about 30 years,\n\n4. Kempappa,\n Son of Thimappa,\n Aged about 32 years,\n\nAll are residing at Kadagattur Village, ...PETITIONERS\nMadhugiri Taluk,\nTumkur District.\n\n(By Shri. B.Anand, Advocate\nfor Shri. K.Nagabhushana Reddy, Advocate)\n\nAND:\n\nState of Karnataka by ...RESPONDENT\nKodigenahally Police Station.\n\n(By Shri. P.Karunakara, High Court Government Pleader)\n\n ******\n "
}
},
{
"from_name": null,
"id": "be31096598b6446fbe96c6f49d70f382",
"to_name": null,
"type": null,
"value": {
"end": 1249,
"labels": [
"PREAMBLE"
],
"start": 886,
"text": "This Criminal Revision Petition filed under Section 397 read\nwith 401 Criminal Procedure Code, 1973 by the advocate for the\npetitioners praying that this Hon'ble Court may be pleased to set\naside the order of conviction and sentence passed by the\nPrincipal Judicial Magistrate First Class, Madhugiri, in\nC.C.No.93/2001 dated 31.5.2004 and also the order passed by"
}
},
{
"from_name": null,
"id": "4407309b87bd4d63bba9b1e9cfa80dad",
"to_name": null,
"type": null,
"value": {
"end": 1304,
"labels": [
"PREAMBLE"
],
"start": 1249,
"text": "\nthe Presiding Officer, Fast Track Court-IV, Tumkur, in"
}
},
{
"from_name": null,
"id": "ab58d4afe44b42aa91a68c64817a0848",
"to_name": null,
"type": null,
"value": {
"end": 1348,
"labels": [
"PREAMBLE"
],
"start": 1305,
"text": "Criminal\nAppeal No.21/2005 dated 15.7.2005."
}
},
{
"from_name": null,
"id": "9b92730a23ae4ebfb43cd2cf58266539",
"to_name": null,
"type": null,
"value": {
"end": 1414,
"labels": [
"PREAMBLE"
],
"start": 1348,
"text": "\n\n This Criminal Revision Petition is coming on for Hearing"
}
},
{
"from_name": null,
"id": "577545fd34024b30bbc46afd7bcacc9d",
"to_name": null,
"type": null,
"value": {
"end": 1507,
"labels": [
"PREAMBLE"
],
"start": 1414,
"text": ",\nthis day, the court made the following:\n\n O R D E R"
}
},
{
"from_name": null,
"id": "a7dadfb019294acc9aeebdce03879251",
"to_name": null,
"type": null,
"value": {
"end": 1597,
"labels": [
"NONE"
],
"start": 1507,
"text": "\n Heard the learned counsel for the petitioners and the learned Government Pleader."
}
},
{
"from_name": null,
"id": "34457f1ee3884eda84c6108c51b39bad",
"to_name": null,
"type": null,
"value": {
"end": 1740,
"labels": [
"FAC"
],
"start": 1599,
"text": "2. The facts leading up to this case are as follows: The petitioners were the accused before the Courts below in the following circumstances."
}
},
{
"from_name": null,
"id": "775fec0e45db456ba34310a07b9dc46d",
"to_name": null,
"type": null,
"value": {
"end": 1920,
"labels": [
"FAC"
],
"start": 1741,
"text": "It transpires that these petitioners had picked up a quarrel with the complainant and that there was enmity which was long standing between the petitioners and the PW2 the victim."
}
},
{
"from_name": null,
"id": "d308dde287324da2984214b6f9786995",
"to_name": null,
"type": null,
"value": {
"end": 2277,
"labels": [
"FAC"
],
"start": 1921,
"text": "It transpires that it was alleged as to petitioner No.1 having assaulted PW2 with a sickle on his left ear and as a result of which he has suffered a cut injury and that the petitioner No.2 had assaulted him with the club on the left hand of PW2 and that the petitioners No.3 and 4 had joined the petitioners No.1 and 2 by assaulting with their bear hands."
}
},
{
"from_name": null,
"id": "61df9d872a05492e8e998f43fc11222e",
"to_name": null,
"type": null,
"value": {
"end": 2488,
"labels": [
"FAC"
],
"start": 2278,
"text": "It was, therefore, alleged that the petitioners had committed offences punishable under Section 326, 324, 323 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as \"IPC\", for brevity)."
}
},
{
"from_name": null,
"id": "c7a31dc482c040ec97ced7ee56e1ae98",
"to_name": null,
"type": null,
"value": {
"end": 3241,
"labels": [
"FAC"
],
"start": 2489,
"text": "Thereafter, PW2 was admitted to hospital for treatment as an out-patient and on the next day, the complaint was lodged by PW1 on the basis of which the proceedings were initiated and during the course of investigation, the petitioners were arrested and it is alleged that petitioner No.1 had made a voluntary statement and had produced the weapons used in the commission of the offence and the same were seized under a mahazar and the accused- petitioners were produced before the jurisdictional Court and after further investigation, a charge sheet was filed against the petitioners and the petitioners having pleaded not guilty and claiming to have been tried, the prosecution examined nine witnesses and marked several exhibits including MO.1 and 2."
}
},
{
"from_name": null,
"id": "8458bf2daf8d4c5abd3cef96cd1d12be",
"to_name": null,
"type": null,
"value": {
"end": 3382,
"labels": [
"ISSUE"
],
"start": 3242,
"text": "On the basis of the evidence tendered and the arguments canvassed, the following points were framed by the Court below for consideration: 1."
}
},
{
"from_name": null,
"id": "bcae4b3811884b3592e2c1d9acb50c52",
"to_name": null,
"type": null,
"value": {
"end": 3985,
"labels": [
"ISSUE"
],
"start": 3383,
"text": "Whether the prosecution proves beyond all reasonable doubt that on 6.4.2000 at about 6.00 p.m. in front of V.S.S.N., Kadagathur, when CW.1- Aswathappa and CW.2-Gangappa were returning from Jathra at that time, accused No.1 to 4 with an common intention to commit a cognizable offence, having previous enemity, picked up quarrel, with the said CW.1 and 2 and accused No.1 voluntarily assaulted CW.2 on his left ear with a Chopper (matchu) and voluntarily caused grievous hurt to him and that thereby, the accused persons have committed an offence punishable under Section 326 read with 34 of I.P.C.?\n 2."
}
},
{
"from_name": null,
"id": "c90ad227b641434abc1c023f12333bb4",
"to_name": null,
"type": null,
"value": {
"end": 4352,
"labels": [
"ISSUE"
],
"start": 3986,
"text": "Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, in furtherance of common intention, accused No.2, voluntarily caused hurt to CW.2 on his left hand with a club and caused bleeding injury, and that thereby the accused persons have committed an offence punishable under Section 324 read with 34 of I.P.C.?"
}
},
{
"from_name": null,
"id": "aef7c3cdf8ff45f38a799350302db8eb",
"to_name": null,
"type": null,
"value": {
"end": 4733,
"labels": [
"ISSUE"
],
"start": 4352,
"text": "\n 3. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the accused Nos,3 and 4 in furtherance of their common intention, voluntarily caused hurt to CW.2 with hands and caused bodily pain to him and that thereby the accused persons have committed an offence punishable under Section 323 r/w 34 of I.P.C.?\n 4. What order?"
}
},
{
"from_name": null,
"id": "33e8caf862f04ec08d9eb016c3b432e2",
"to_name": null,
"type": null,
"value": {
"end": 5198,
"labels": [
"RLC"
],
"start": 4733,
"text": "\n 3. The Court below has answered points 1 to 3 in the affirmative and convicted the petitioners for an offence punishable under Section 323 IPC to undergo simple imprisonment for three months and for the offence punishable under Section 326 IPC for two years and also to pay a fine of Rs.1,000/- each and for the offences punishable under Section 324 IPC, the accused were sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.500/- each."
}
},
{
"from_name": null,
"id": "8ebb3e2cd3344edaae4c297493b3ba7f",
"to_name": null,
"type": null,
"value": {
"end": 5409,
"labels": [
"RLC"
],
"start": 5199,
"text": "This having been carried in appeal, the appellate Court had modified the sentence imposed while dismissing the appeal to hold that the sentence of imprisonment imposed by the Trial Court shall run concurrently."
}
},
{
"from_name": null,
"id": "d0af6f5529b7484fa4bd7b903515f9f8",
"to_name": null,
"type": null,
"value": {
"end": 5481,
"labels": [
"FAC"
],
"start": 5410,
"text": "It is that, which is under challenged in the present Revision Petition."
}
},
{
"from_name": null,
"id": "101e938d4be142469d68ea8108074a4d",
"to_name": null,
"type": null,
"value": {
"end": 5736,
"labels": [
"ARG_PETITIONER"
],
"start": 5483,
"text": "4. The learned counsel for the petitioners would point out that having regard to the facts and circumstances, the Courts below have committed an error in holding that the charges against the petitioners have been established beyond all reasonable doubt."
}
},
{
"from_name": null,
"id": "4e5c30d423d5486993c13258dca0dab6",
"to_name": null,
"type": null,
"value": {
"end": 5825,
"labels": [
"ARG_PETITIONER"
],
"start": 5737,
"text": "There was a delay in lodging the complaint, which has not been taken into consideration."
}
},
{
"from_name": null,
"id": "5ca601ff9b3d4f8683ce4c83c65c932e",
"to_name": null,
"type": null,
"value": {
"end": 5889,
"labels": [
"ARG_PETITIONER"
],
"start": 5826,
"text": "No reasonable explanation has been given by PW1 in this regard."
}
},
{
"from_name": null,
"id": "7d35265304ec4ff3ad33dd5b21f24f9e",
"to_name": null,
"type": null,
"value": {
"end": 6304,
"labels": [
"ARG_PETITIONER"
],
"start": 5890,
"text": "It is not in dispute that PW1 and PW2 are brothers and therefore the evidence of PW1 was that of an interested witness and it is also an admitted circumstance that though it was stated that there was standing enmity between the petitioners and PW2 and his family, the prosecution had not made any attempt to prove such enmity or that it was a motive for the alleged commissioning of the offence by the petitioners."
}
},
{
"from_name": null,
"id": "762732a71e344179b2bb2e2fc1843ba5",
"to_name": null,
"type": null,
"value": {
"end": 6467,
"labels": [
"ARG_PETITIONER"
],
"start": 6305,
"text": "There is also a glaring circumstance that PW1, in his cross-examination, has admitted that after the alleged incident, PW2 was taken to the hospital at 10.30 p.m."
}
},
{
"from_name": null,
"id": "9ec018e6997c421c9ea6b28d10a9cea5",
"to_name": null,
"type": null,
"value": {
"end": 6604,
"labels": [
"ARG_PETITIONER"
],
"start": 6468,
"text": "However, PW7 the medical practitioner, who is said to have attended on PW2 had indicated that he had administered treatment at 7.35 p.m."
}
},
{
"from_name": null,
"id": "244c3b494fa240b5b4fe1ab23bd1949d",
"to_name": null,
"type": null,
"value": {
"end": 6810,
"labels": [
"ARG_PETITIONER"
],
"start": 6605,
"text": "This is a glaring contradiction would which indicate that the true facts were not before the Court, and therefore, Exhibit P4 the wound certificate, was clearly a manipulation to implicate the petitioners."
}
},
{
"from_name": null,
"id": "247545f782f24302b7bfaeb72c07d068",
"to_name": null,
"type": null,
"value": {
"end": 7085,
"labels": [
"ARG_PETITIONER"
],
"start": 6811,
"text": "Further, PW2, who was said to be the injured victim, had stated that he had not made any statement before the concerned police and he had also stated that PWs 1 and 4 were about 50 feet away from the incident, but, there were contradictory statements of the other witnesses."
}
},
{
"from_name": null,
"id": "3857aed535a2407d97aa096fb0bb781c",
"to_name": null,
"type": null,
"value": {
"end": 7175,
"labels": [
"ARG_PETITIONER"
],
"start": 7086,
"text": "This has not been sought to be explained and the Courts below have glossed over the same."
}
},
{
"from_name": null,
"id": "03ad9a1c4b444e3f9ea72c2318690687",
"to_name": null,
"type": null,
"value": {
"end": 7376,
"labels": [
"ARG_PETITIONER"
],
"start": 7176,
"text": "It is further contended that PW4 was an alleged eye-witness who had turned hostile and he had also admitted that MOs.1 and 2 were left behind at the spot and he had handed over the same to the police."
}
},
{
"from_name": null,
"id": "16616e182e694d07a1ecd30c659cf33b",
"to_name": null,
"type": null,
"value": {
"end": 7592,
"labels": [
"ARG_PETITIONER"
],
"start": 7377,
"text": "However, PW5 the investigating officer, had stated that there was a voluntary statement by accused No.1, petitioner No.1 herein, and that it is pursuant to his statement that the said MOs.1 and 2 had been recovered."
}
},
{
"from_name": null,
"id": "f8756b51d42245e5a799a6aba516c900",
"to_name": null,
"type": null,
"value": {
"end": 7827,
"labels": [
"ARG_PETITIONER"
],
"start": 7593,
"text": "It is also stated that there were no blood stains on the said weapons and it is inexplicable that it was alleged as a result of the assault with the club by accused No.2, there was a bleeding cut injury, which is totally inexplicable."
}
},
{
"from_name": null,
"id": "7e1e7d95e2e944b1a3b030a17e496af8",
"to_name": null,
"type": null,
"value": {
"end": 8026,
"labels": [
"ARG_PETITIONER"
],
"start": 7828,
"text": "Whereas, the evidence of the medical practitioner was to the effect that injury caused by the club had resulted in a contusion, and therefore, these infirmities have not been sufficiently explained."
}
},
{
"from_name": null,
"id": "52bc7f2eb5da419dac7fc23bf1047125",
"to_name": null,
"type": null,
"value": {
"end": 8335,
"labels": [
"ARG_PETITIONER"
],
"start": 8027,
"text": "While, more importantly, the learned counsel for the petitioners would point out that insofar as the allegation that the petitioners were guilty of committing an offence punishable under Section 326 IPC require that the alleged injury caused was required to be of a grievous nature to invoke Section 326 IPC."
}
},
{
"from_name": null,
"id": "8395fda2281443b2a0052db72be9835e",
"to_name": null,
"type": null,
"value": {
"end": 8588,
"labels": [
"ARG_PETITIONER"
],
"start": 8336,
"text": "Having regard to the nature of the injuries, as described under Exhibit P4, the injuries are of a minor nature and the mere statement by the medical practitioner that they are of a grievous nature would not bring it within the scope of Section 326 IPC."
}
},
{
"from_name": null,
"id": "4de2061e67634d6c9ee38d114d6ce85d",
"to_name": null,
"type": null,
"value": {
"end": 8738,
"labels": [
"ARG_PETITIONER"
],
"start": 8589,
"text": "It is further stated that insofar as the petitioners 3 and 4 at the trial are concerned, there is no material to link them with the alleged incident."
}
},
{
"from_name": null,
"id": "40317afbe69942738722d13dfd429bd4",
"to_name": null,
"type": null,
"value": {
"end": 8818,
"labels": [
"ARG_PETITIONER"
],
"start": 8739,
"text": "The allegations against them are that they assaulted PW2 with their bare hands."
}
},
{
"from_name": null,
"id": "ba1c3a24d21b46468e986befbe6e6e32",
"to_name": null,
"type": null,
"value": {
"end": 9341,
"labels": [
"ARG_PETITIONER"
],
"start": 8819,
"text": "The medical practitioner had not indicated any such injuries which could have been caused by such assault and in the absence of any evidence in that regard, it could not be said that any case was made out against the petitioners 3 and 4 and there is also no evidence to indicate that they had any truck with the petitioners 1 and 2 and hence the allegation of there being a common intention of the petitioner and of petitioners 3 and 4 being involved is a make-believe allegation, merely to implicate the said petitioners."
}
},
{
"from_name": null,
"id": "cf32b0a3f14448b19acf49520b705a9c",
"to_name": null,
"type": null,
"value": {
"end": 9920,
"labels": [
"ARG_PETITIONER"
],
"start": 9342,
"text": "Therefore, the learned counsel would submit that the entire case is stage-managed only to implicate the petitioners and they ought to be acquitted, or in the alternative, he would submit that the punishment imposed being glaringly disproportionate to the alleged injuries said to have been caused to PW2, would have to be drastically modified for the reason that no offence is made out under Section 326 IPC and even if there were injuries caused and an offence under Section 324 IPC is made out and the punishment imposed is disproportionate and would have to be set at naught."
}
},
{
"from_name": null,
"id": "baa27891999847eba19bd442775100e7",
"to_name": null,
"type": null,
"value": {
"end": 10696,
"labels": [
"ARG_RESPONDENT"
],
"start": 9920,
"text": "\n 5. The learned Government Pleader would seek to justify that the judgement of the Trial Court which has been affirmed in appeal and would submit that the findings are findings of fact which are characterised as being without any basis and this is an incorrect contention and the learned Government Pleader would seek to take this Court through the record to demonstrate that the so called inconsistencies, which are sought to be thrown up by the learned Counsel for the petitioner, are not in fact inconsistencies which would go to the root of the matter and may be ascribed to the time lapse between the date of incident and the date of the trial and hence it is inevitable that there are minor discrepancies which cannot be said to be fatal to the case of the prosecution."
}
},
{
"from_name": null,
"id": "8109e66670c7407090ec0ae6220e1b51",
"to_name": null,
"type": null,
"value": {
"end": 11282,
"labels": [
"ARG_RESPONDENT"
],
"start": 10697,
"text": "The fact remains that PW2 was injured and the injuries having been established and since the matter has been investigated independently by the jurisdictional police, it cannot be said that the petitioners have been falsely implicated in a case in the face of injuries caused and the evidence of other independent witnesses on the basis of which the Courts below have imposed nominal punishment even though punishment of a higher degree could have been imposed in the eye of law, having regard to the circumstances of the case and therefore would seek dismissal of the present petition."
}
},
{
"from_name": null,
"id": "59cfa68194ce46b9a7f53cc171508a98",
"to_name": null,
"type": null,
"value": {
"end": 11699,
"labels": [
"ANALYSIS"
],
"start": 11282,
"text": "\n 6. In the light of the rival contentions, and from a close perusal of the record, it may straight away be said that insofar as petitioners 3 and 4 are concerned, the allegations that there was a common intention between them and petitioners 1 and 2 and they had together caused injuries to PW2 is not established insofar as the petitioners 3 and 4 are concerned in the absence of any material evidence against them."
}
},
{
"from_name": null,
"id": "5699d140d80a487e9111ecfc1422acbf",
"to_name": null,
"type": null,
"value": {
"end": 11899,
"labels": [
"ANALYSIS"
],
"start": 11700,
"text": "Insofar as petitioners 1 and 2 are concerned, the injuries which PW2 has suffered cannot be self-inflicted, it is therefore not possible to accept the contention that no incident has occurred at all."
}
},
{
"from_name": null,
"id": "9893b38e309c44d5b140b9771b9e4703",
"to_name": null,
"type": null,
"value": {
"end": 12153,
"labels": [
"ANALYSIS"
],
"start": 11900,
"text": "The evidence of the several witnesses would establish and would be consistent with the allegations that the petitioner No.1 had caused injury to the left ear of PW2 with a sickle and that he was also injured on his left hand with a club by accused No.2."
}
},
{
"from_name": null,
"id": "2ee80708931f466aa3b8ed9af503b055",
"to_name": null,
"type": null,
"value": {
"end": 12300,
"labels": [
"ANALYSIS"
],
"start": 12154,
"text": "The question then, would be whether the offence committed by the said accused would be an offence punishable under Section 324 or Section 326 IPC."
}
},
{
"from_name": null,
"id": "aa26c8947b33499288d36fe78b506ab1",
"to_name": null,
"type": null,
"value": {
"end": 12903,
"labels": [
"ANALYSIS"
],
"start": 12301,
"text": "As rightly pointed out by the learned Counsel for the petitioners, Section 320 IPC, which describes \"Grievous hurt\", gives 8 possible kinds of hurt which may be characterised as grievous hurt, the injuries caused to PW2 do not fall within any of those categories and from a description of the injuries they may be charaterised only as simple injuries which were not likely to cause the death of the victim, in which event, it could not be said that an offence punishable under Section 326 IPC had been committed by the petitioners 1 and 2 and at best it was an offence punishable under Section 324 IPC."
}
},
{
"from_name": null,
"id": "3b0116b42d3447aaa4da600c9dc5a903",
"to_name": null,
"type": null,
"value": {
"end": 13066,
"labels": [
"ANALYSIS"
],
"start": 12904,
"text": "Therefore, the conviction of the petitioners for an offence punishable under Section 326 IPC is misplaced and is not supported by the material evidence on record."
}
},
{
"from_name": null,
"id": "035132b913d04f60835bc5607da6fb6c",
"to_name": null,
"type": null,
"value": {
"end": 13196,
"labels": [
"ANALYSIS"
],
"start": 13067,
"text": "Insofar as the punishment imposed under Section 324 IPC, again, may be on the higher side going by the nature of injuries caused."
}
},
{
"from_name": null,
"id": "bc21344944cc4665bbaa84e1b0f37cde",
"to_name": null,
"type": null,
"value": {
"end": 13778,
"labels": [
"ANALYSIS"
],
"start": 13197,
"text": "When it was quite possible that there was a scuffle in which the victim also may have retaliated, in which event, the punishment that could have been imposed especially in the light of the circumstance that there was running enmity between the petitioners and the victim even according to the prosecution, the message that the petitioners 1 and 2 should conduct themselves in a more civil manner would be brought home, if they are made to feel the hardship of having to pay hard-earned money as fine, rather than the petitioners being incarcerated to fuel their enmity even higher."
}
},
{
"from_name": null,
"id": "f6586792a7d84c0b9bda07ed3733cb82",
"to_name": null,
"type": null,
"value": {
"end": 14155,
"labels": [
"RATIO"
],
"start": 13779,
"text": "Hence, in the opinion of this Court, while setting aside the punishment imposed under Section 326 IPC as also the punishment imposed under Section 323 IPC sentencing the accused to undergo simple imprisonment for three months and while modifying the punishment imposed under Section 324 IPC and reducing the same to payment of fine of Rs.5,000/-, ends of justice would be met."
}
},
{
"from_name": null,
"id": "d244d66f05474b82a195124a093737c8",
"to_name": null,
"type": null,
"value": {
"end": 14222,
"labels": [
"RPC"
],
"start": 14155,
"text": "\n 7. Accordingly, the judgements of the Courts below are set aside."
}
},
{
"from_name": null,
"id": "d21344749ee640a8a35cd7eaf9a56ff6",
"to_name": null,
"type": null,
"value": {
"end": 14631,
"labels": [
"RPC"
],
"start": 14223,
"text": "The punishment imposed on the accused for offences punishable under Section 323 and 324 of the Indian Penal Code is reduced to payment of fine of Rs.5,000/- each, shall be payable jointly and severally, by the accused petitioners 1 and 2 and out of such fine to be paid by the accused, a sum of Rs.9,000/- shall be paid to PW2 as compensation, in terms of Section 357 of the Code of Criminal Procedure, 1973."
}
},
{
"from_name": null,
"id": "d91b176899234c8d8381645d3188fd46",
"to_name": null,
"type": null,
"value": {
"end": 14718,
"labels": [
"RPC"
],
"start": 14632,
"text": "The punishment imposed as against accused No.3 and 4 is set aside on all three counts."
}
},
{
"from_name": null,
"id": "d23f4457a8444a28986f0e28c83c2b8f",
"to_name": null,
"type": null,
"value": {
"end": 14734,
"labels": [
"NONE"
],
"start": 14718,
"text": "\n Sd/- JUDGE lnn"
}
}
]
}
] | 4,175 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BANGALORE\n\nDATED THIS THE 19TH DAY OF JUNE 2012\n\n BEFORE\n\nTHE HON'BLE MR. JUSTICE ANAND BYRAREDDY\n\n CRIMINAL REVISION PETITION No.1307 OF 2005\nBETWEEN :\n\n1. Venkataramanappa,\n Son of Kondappa,\n Aged about 60 years,\n\n2. Rangadhamappa,\n @ Venkataramanappa,\n Son of Kurlappa,\n Aged about 35 years,\n\n3. Krishnappa,\n @ Venkataramanappa,\n Son of Kurlappa,\n Aged about 30 years,\n\n4. Kempappa,\n Son of Thimappa,\n Aged about 32 years,\n\nAll are residing at Kadagattur Village, ...PETITIONERS\nMadhugiri Taluk,\nTumkur District.\n\n(By Shri. B.Anand, Advocate\nfor Shri. K.Nagabhushana Reddy, Advocate)\n\nAND:\n\nState of Karnataka by ...RESPONDENT\nKodigenahally Police Station.\n\n(By Shri. P.Karunakara, High Court Government Pleader)\n\n ******\n This Criminal Revision Petition filed under Section 397 read\nwith 401 Criminal Procedure Code, 1973 by the advocate for the\npetitioners praying that this Hon'ble Court may be pleased to set\naside the order of conviction and sentence passed by the\nPrincipal Judicial Magistrate First Class, Madhugiri, in\nC.C.No.93/2001 dated 31.5.2004 and also the order passed by\nthe Presiding Officer, Fast Track Court-IV, Tumkur, in Criminal\nAppeal No.21/2005 dated 15.7.2005.\n\n This Criminal Revision Petition is coming on for Hearing,\nthis day, the court made the following:\n\n O R D E R\n Heard the learned counsel for the petitioners and the learned Government Pleader.\n 2. The facts leading up to this case are as follows: The petitioners were the accused before the Courts below in the following circumstances. It transpires that these petitioners had picked up a quarrel with the complainant and that there was enmity which was long standing between the petitioners and the PW2 the victim. It transpires that it was alleged as to petitioner No.1 having assaulted PW2 with a sickle on his left ear and as a result of which he has suffered a cut injury and that the petitioner No.2 had assaulted him with the club on the left hand of PW2 and that the petitioners No.3 and 4 had joined the petitioners No.1 and 2 by assaulting with their bear hands. It was, therefore, alleged that the petitioners had committed offences punishable under Section 326, 324, 323 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as \"IPC\", for brevity). Thereafter, PW2 was admitted to hospital for treatment as an out-patient and on the next day, the complaint was lodged by PW1 on the basis of which the proceedings were initiated and during the course of investigation, the petitioners were arrested and it is alleged that petitioner No.1 had made a voluntary statement and had produced the weapons used in the commission of the offence and the same were seized under a mahazar and the accused- petitioners were produced before the jurisdictional Court and after further investigation, a charge sheet was filed against the petitioners and the petitioners having pleaded not guilty and claiming to have been tried, the prosecution examined nine witnesses and marked several exhibits including MO.1 and 2. On the basis of the evidence tendered and the arguments canvassed, the following points were framed by the Court below for consideration: 1. Whether the prosecution proves beyond all reasonable doubt that on 6.4.2000 at about 6.00 p.m. in front of V.S.S.N., Kadagathur, when CW.1- Aswathappa and CW.2-Gangappa were returning from Jathra at that time, accused No.1 to 4 with an common intention to commit a cognizable offence, having previous enemity, picked up quarrel, with the said CW.1 and 2 and accused No.1 voluntarily assaulted CW.2 on his left ear with a Chopper (matchu) and voluntarily caused grievous hurt to him and that thereby, the accused persons have committed an offence punishable under Section 326 read with 34 of I.P.C.?\n 2. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, in furtherance of common intention, accused No.2, voluntarily caused hurt to CW.2 on his left hand with a club and caused bleeding injury, and that thereby the accused persons have committed an offence punishable under Section 324 read with 34 of I.P.C.?\n 3. Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place, the accused Nos,3 and 4 in furtherance of their common intention, voluntarily caused hurt to CW.2 with hands and caused bodily pain to him and that thereby the accused persons have committed an offence punishable under Section 323 r/w 34 of I.P.C.?\n 4. What order?\n 3. The Court below has answered points 1 to 3 in the affirmative and convicted the petitioners for an offence punishable under Section 323 IPC to undergo simple imprisonment for three months and for the offence punishable under Section 326 IPC for two years and also to pay a fine of Rs.1,000/- each and for the offences punishable under Section 324 IPC, the accused were sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.500/- each.\nThis having been carried in appeal, the appellate Court had modified the sentence imposed while dismissing the appeal to hold that the sentence of imprisonment imposed by the Trial Court shall run concurrently. It is that, which is under challenged in the present Revision Petition.\n 4. The learned counsel for the petitioners would point out that having regard to the facts and circumstances, the Courts below have committed an error in holding that the charges against the petitioners have been established beyond all reasonable doubt. There was a delay in lodging the complaint, which has not been taken into consideration. No reasonable explanation has been given by PW1 in this regard. It is not in dispute that PW1 and PW2 are brothers and therefore the evidence of PW1 was that of an interested witness and it is also an admitted circumstance that though it was stated that there was standing enmity between the petitioners and PW2 and his family, the prosecution had not made any attempt to prove such enmity or that it was a motive for the alleged commissioning of the offence by the petitioners. There is also a glaring circumstance that PW1, in his cross-examination, has admitted that after the alleged incident, PW2 was taken to the hospital at 10.30 p.m. However, PW7 the medical practitioner, who is said to have attended on PW2 had indicated that he had administered treatment at 7.35 p.m. This is a glaring contradiction would which indicate that the true facts were not before the Court, and therefore, Exhibit P4 the wound certificate, was clearly a manipulation to implicate the petitioners. Further, PW2, who was said to be the injured victim, had stated that he had not made any statement before the concerned police and he had also stated that PWs 1 and 4 were about 50 feet away from the incident, but, there were contradictory statements of the other witnesses. This has not been sought to be explained and the Courts below have glossed over the same. It is further contended that PW4 was an alleged eye-witness who had turned hostile and he had also admitted that MOs.1 and 2 were left behind at the spot and he had handed over the same to the police. However, PW5 the investigating officer, had stated that there was a voluntary statement by accused No.1, petitioner No.1 herein, and that it is pursuant to his statement that the said MOs.1 and 2 had been recovered. It is also stated that there were no blood stains on the said weapons and it is inexplicable that it was alleged as a result of the assault with the club by accused No.2, there was a bleeding cut injury, which is totally inexplicable. Whereas, the evidence of the medical practitioner was to the effect that injury caused by the club had resulted in a contusion, and therefore, these infirmities have not been sufficiently explained. While, more importantly, the learned counsel for the petitioners would point out that insofar as the allegation that the petitioners were guilty of committing an offence punishable under Section 326 IPC require that the alleged injury caused was required to be of a grievous nature to invoke Section 326 IPC. Having regard to the nature of the injuries, as described under Exhibit P4, the injuries are of a minor nature and the mere statement by the medical practitioner that they are of a grievous nature would not bring it within the scope of Section 326 IPC. It is further stated that insofar as the petitioners 3 and 4 at the trial are concerned, there is no material to link them with the alleged incident. The allegations against them are that they assaulted PW2 with their bare hands. The medical practitioner had not indicated any such injuries which could have been caused by such assault and in the absence of any evidence in that regard, it could not be said that any case was made out against the petitioners 3 and 4 and there is also no evidence to indicate that they had any truck with the petitioners 1 and 2 and hence the allegation of there being a common intention of the petitioner and of petitioners 3 and 4 being involved is a make-believe allegation, merely to implicate the said petitioners. Therefore, the learned counsel would submit that the entire case is stage-managed only to implicate the petitioners and they ought to be acquitted, or in the alternative, he would submit that the punishment imposed being glaringly disproportionate to the alleged injuries said to have been caused to PW2, would have to be drastically modified for the reason that no offence is made out under Section 326 IPC and even if there were injuries caused and an offence under Section 324 IPC is made out and the punishment imposed is disproportionate and would have to be set at naught.\n 5. The learned Government Pleader would seek to justify that the judgement of the Trial Court which has been affirmed in appeal and would submit that the findings are findings of fact which are characterised as being without any basis and this is an incorrect contention and the learned Government Pleader would seek to take this Court through the record to demonstrate that the so called inconsistencies, which are sought to be thrown up by the learned Counsel for the petitioner, are not in fact inconsistencies which would go to the root of the matter and may be ascribed to the time lapse between the date of incident and the date of the trial and hence it is inevitable that there are minor discrepancies which cannot be said to be fatal to the case of the prosecution. The fact remains that PW2 was injured and the injuries having been established and since the matter has been investigated independently by the jurisdictional police, it cannot be said that the petitioners have been falsely implicated in a case in the face of injuries caused and the evidence of other independent witnesses on the basis of which the Courts below have imposed nominal punishment even though punishment of a higher degree could have been imposed in the eye of law, having regard to the circumstances of the case and therefore would seek dismissal of the present petition.\n 6. In the light of the rival contentions, and from a close perusal of the record, it may straight away be said that insofar as petitioners 3 and 4 are concerned, the allegations that there was a common intention between them and petitioners 1 and 2 and they had together caused injuries to PW2 is not established insofar as the petitioners 3 and 4 are concerned in the absence of any material evidence against them. Insofar as petitioners 1 and 2 are concerned, the injuries which PW2 has suffered cannot be self-inflicted, it is therefore not possible to accept the contention that no incident has occurred at all. The evidence of the several witnesses would establish and would be consistent with the allegations that the petitioner No.1 had caused injury to the left ear of PW2 with a sickle and that he was also injured on his left hand with a club by accused No.2. The question then, would be whether the offence committed by the said accused would be an offence punishable under Section 324 or Section 326 IPC. As rightly pointed out by the learned Counsel for the petitioners, Section 320 IPC, which describes \"Grievous hurt\", gives 8 possible kinds of hurt which may be characterised as grievous hurt, the injuries caused to PW2 do not fall within any of those categories and from a description of the injuries they may be charaterised only as simple injuries which were not likely to cause the death of the victim, in which event, it could not be said that an offence punishable under Section 326 IPC had been committed by the petitioners 1 and 2 and at best it was an offence punishable under Section 324 IPC. Therefore, the conviction of the petitioners for an offence punishable under Section 326 IPC is misplaced and is not supported by the material evidence on record. Insofar as the punishment imposed under Section 324 IPC, again, may be on the higher side going by the nature of injuries caused. When it was quite possible that there was a scuffle in which the victim also may have retaliated, in which event, the punishment that could have been imposed especially in the light of the circumstance that there was running enmity between the petitioners and the victim even according to the prosecution, the message that the petitioners 1 and 2 should conduct themselves in a more civil manner would be brought home, if they are made to feel the hardship of having to pay hard-earned money as fine, rather than the petitioners being incarcerated to fuel their enmity even higher. Hence, in the opinion of this Court, while setting aside the punishment imposed under Section 326 IPC as also the punishment imposed under Section 323 IPC sentencing the accused to undergo simple imprisonment for three months and while modifying the punishment imposed under Section 324 IPC and reducing the same to payment of fine of Rs.5,000/-, ends of justice would be met.\n 7. Accordingly, the judgements of the Courts below are set aside. The punishment imposed on the accused for offences punishable under Section 323 and 324 of the Indian Penal Code is reduced to payment of fine of Rs.5,000/- each, shall be payable jointly and severally, by the accused petitioners 1 and 2 and out of such fine to be paid by the accused, a sum of Rs.9,000/- shall be paid to PW2 as compensation, in terms of Section 357 of the Code of Criminal Procedure, 1973. The punishment imposed as against accused No.3 and 4 is set aside on all three counts.\n Sd/- JUDGE lnn "
} |
{
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{
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{
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"start": 0,
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\nDATED THIS THE 12TH DAY OF MARCH 2020\n\n BEFORE"
}
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{
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"text": "\n\nTHE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY"
}
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{
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"start": 148,
"text": "\n\n CRIMINAL APPEAL No.116 OF 2014"
}
},
{
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"labels": [
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"text": "\n\nBETWEEN:"
}
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{
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"labels": [
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"start": 196,
"text": "\n\nMrs. Shivamma\nW/o.Mr. Manjunath"
}
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{
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"labels": [
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"text": "\nAged 37 years"
}
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{
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"labels": [
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"start": 244,
"text": "Resident of\nChimanahalli Village,\nChintamani Taluk\nPIN: 563 125.\n\n ...Appellant\n(By Mr. P.D. Subrahmanya, panel advocate of\nHigh Court Legal Services Committee)\n\nAND:\n\nState of Karnataka ...Respondent\nby Chintamani Rural Police\nChintamani Taluk\nThrough the State Public\nProsecutor, High Court Building\nDr. Ambedkar Veedhi,\nBangalore 560 001.\n\n(By Sri.Showri H.R., HCGP)\n\n ****\n "
}
},
{
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"id": "2f2b12eb76a546edb3608df961446585",
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"value": {
"end": 1728,
"labels": [
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],
"start": 755,
"text": "This Criminal Appeal is filed under Section 374(2) of\nCr.P.C praying to set aside the judgment of conviction and\n\norder on sentence dated 21-01-2014 passed by the\nlearned Principal District and Sessions Judge,\nChikkaballapura, in Sessions Case No.111/2008, convicting\nthe appellant/accused No.1 for the offences punishable\nunder Sections 342 and 326 read with Section 34 of IPC\nand sentencing to undergo Rigorous Imprisonment for six\nmonths and to pay fine of `1,000/- and in default of\npayment of fine to undergo rigorous imprisonment for one\nmonth for the offence punishable under Section 342 of IPC\nand further sentenced to undergo rigorous imprisonment\nfor five years and to pay fine of `5,000/- in default of\npayment of fine to undergo rigorous imprisonment for one\nyear for the offence punishable under Section 326 of IPC.\n\n This Criminal Appeal coming on for Hearing, this day,\nthe Court delivered the following:\n\n J U D G M E N T"
}
},
{
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"end": 2190,
"labels": [
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],
"start": 1728,
"text": "\n The present appellant as accused No.1 was tried and later convicted by the learned Principal District and Sessions Judge at Chikkaballapura, (hereinafter referred to as `Trial Court' for brevity), in Sessions Case No.111/2008, by its judgment of conviction and order on sentence dated 21-01-2014, for the offences punishable under Sections 342 and 326 of the Indian Penal Code, 1860 (hereinafter referred to as `IPC' for brevity) and was sentenced accordingly."
}
},
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"id": "24bda29a2c034e7695120cc5f1946edd",
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"value": {
"end": 2317,
"labels": [
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],
"start": 2191,
"text": "It is against the said judgment of conviction and order on sentence, the appellant/accused No.1 has preferred this appeal.\n 2."
}
},
{
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"id": "9a01f15cab2848aba69822c8e732ee3d",
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"value": {
"end": 2490,
"labels": [
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],
"start": 2318,
"text": "The summary of the case of the prosecution is that, accused No.1 is the wife of the complainant (PW-1) Manjunatha, and had developed illicit relationship with accused No.2."
}
},
{
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"id": "b426c1778203481ea85578910e481233",
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"end": 2670,
"labels": [
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],
"start": 2491,
"text": "On 30-04-2008, in the evening at about 8 o'clock, when the complainant returned to his home, he found the presence of accused No.2 along with his wife (accused No.1) in his house."
}
},
{
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"end": 3395,
"labels": [
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],
"start": 2671,
"text": "Though accused No.2 left the house, after arrival of complainant, but on the same night, which was on 01-05-2008 at 03:00 hours, once again accused No.2 went to the house of the complainant and got the door opened and when questioned by the complainant as to why he had come once again in that odd hour, the said accused No.2 joined by none else than the wife of the complainant closed the mouth of the complainant, dragged him to the cattle shed which was adjacent to their hut and after tying his hands and legs to a pole there, removed his nicker (half pant) and using a machete and a knife, amputated his penis shaft and also inflicted few more injuries on other parts of his body, thereby, attempted to cause his death."
}
},
{
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"id": "6695760eae734779ab243ef9dddfe800",
"to_name": "text",
"type": "labels",
"value": {
"end": 3698,
"labels": [
"FAC"
],
"start": 3396,
"text": "The complaint was lodged by the complainant himself, while under treatment in the Hospital which was registered in the respondent Station Crime No.81/2008 against both accused No.1 (present appellant) and accused No.2, for the offences punishable under Sections 342 and 307 read with Section 34 of IPC."
}
},
{
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"id": "755f260baf28409ab5f387bf95130e0c",
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"value": {
"end": 3796,
"labels": [
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],
"start": 3699,
"text": "After completing investigation, the respondent Police filed a charge sheet for the said offences."
}
},
{
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"id": "d276252b5ef94eb381ac3e9ebe2e81ef",
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"value": {
"end": 3926,
"labels": [
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],
"start": 3797,
"text": "The charge was framed against the accused for the offences punishable under Sections 342 and 307 read with Section 34 of IPC.\n 3."
}
},
{
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"id": "1d7a526217d845328f20b9179121c72a",
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"value": {
"end": 4145,
"labels": [
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],
"start": 3927,
"text": "Since the accused pleaded not guilty, in order to prove the charges leveled against the accused, the prosecution examined in all fourteen witnesses from PW-1 to PW-14 and got marked documents from Exhibits P-1 to P-33."
}
},
{
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"id": "bbe029b35130434a8e0d39652b656110",
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"value": {
"end": 4219,
"labels": [
"FAC"
],
"start": 4146,
"text": "Material Objects from MO-1 to MO-4 were marked from the prosecution side."
}
},
{
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"id": "fd387f90b044408d8e26e194e66c47c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 4328,
"labels": [
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],
"start": 4219,
"text": "\n Neither any witnesses were examined nor any documents were marked as exhibits from the side of the accused."
}
},
{
"from_name": "label",
"id": "3364c4944b0648028496eb073301595b",
"to_name": "text",
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"value": {
"end": 4676,
"labels": [
"FAC"
],
"start": 4330,
"text": "4. After hearing both side, the Trial Court by its impugned judgment dated 21-01-2014, acquitted the accused No.1 of the offence punishable under Section 307 read with Section 34 of IPC, however, convicted the appellant/accused No.1 for the offences punishable under Sections 326 and 342 read with Section 34 of IPC and sentenced her accordingly."
}
},
{
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"id": "79d1b62306cf4405b22cbf5853cb974a",
"to_name": "text",
"type": "labels",
"value": {
"end": 4793,
"labels": [
"FAC"
],
"start": 4677,
"text": "It is against the said judgment of conviction and order on sentence, the accused No.1 has preferred this appeal.\n 5."
}
},
{
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"id": "e11fcccfd1ec46d6a01c8542874a2bac",
"to_name": "text",
"type": "labels",
"value": {
"end": 4876,
"labels": [
"FAC"
],
"start": 4794,
"text": "The trial Court records were called for and the same are placed before this Court."
}
},
{
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"id": "6ef57df4f4b14cbc8c1a986fd10ef2c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 5326,
"labels": [
"FAC"
],
"start": 4876,
"text": "\n 6. Since apart from the present appellant (accused No.1), accused No.2 has also been convicted under the same judgment passed by the Trial Court for the same offences, this Court, when specifically asked learned counsels from both side as to the filing of any appeal by accused No.2 against the impugned judgment of conviction, both the learned counsels pleaded that they have no information, as such, they submitted that no such appeal is pending."
}
},
{
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"id": "44c55b30de04411eb8c0c40214f6ee6d",
"to_name": "text",
"type": "labels",
"value": {
"end": 5373,
"labels": [
"NONE"
],
"start": 5326,
"text": "\nAccordingly, the matter was proceeded further."
}
},
{
"from_name": "label",
"id": "30841b3976a949d0ad5bb2ea422c8383",
"to_name": "text",
"type": "labels",
"value": {
"end": 5450,
"labels": [
"FAC"
],
"start": 5373,
"text": "\n 7. The appellant/accused No.1 earlier was being represented by her counsel."
}
},
{
"from_name": "label",
"id": "e1dc6f6575004faeb04d8b31911919b6",
"to_name": "text",
"type": "labels",
"value": {
"end": 5569,
"labels": [
"FAC"
],
"start": 5451,
"text": "However, when the matter was listed for final hearing, the said learned counsel for the appellant had remained absent."
}
},
{
"from_name": "label",
"id": "081810a2f41a4fd8810a7ebc4308109e",
"to_name": "text",
"type": "labels",
"value": {
"end": 5975,
"labels": [
"RLC"
],
"start": 5569,
"text": "\nConsidering the fact that the appeal is of the year 2014 and causing further delay in disposing of the matter was not in the best interest of justice, this Court by its detailed order dated 04-03-2020 appointed learned counsel Mr. P.D. Subrahmanya, a panel advocate from the Legal Services Committee of this Court, to appear on behalf of the appellant and conduct the case of the appellant in this matter."
}
},
{
"from_name": "label",
"id": "dfa7e8a6f5ac482d9c0427dcda1a91c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 6115,
"labels": [
"FAC"
],
"start": 5975,
"text": "\nAccordingly, the said learned counsel from the panel of Legal Services Committee of this Court is representing the appellant in the matter."
}
},
{
"from_name": "label",
"id": "fd5de925a404406cab8dc8ed39b17bdd",
"to_name": "text",
"type": "labels",
"value": {
"end": 6303,
"labels": [
"NONE"
],
"start": 6115,
"text": "\n 8. Heard arguments of the learned panel advocate from the Legal Services Committee of this Court for the appellant and the learned High Court Government Pleader for the respondent State."
}
},
{
"from_name": "label",
"id": "f026ade7c1084662bb7a211dcabbaf00",
"to_name": "text",
"type": "labels",
"value": {
"end": 6420,
"labels": [
"NONE"
],
"start": 6305,
"text": "9. Perused the material placed before this Court including the impugned judgment and also Trial Court records.\n 10."
}
},
{
"from_name": "label",
"id": "17282064686f4c018e646709da77299c",
"to_name": "text",
"type": "labels",
"value": {
"end": 6525,
"labels": [
"NONE"
],
"start": 6421,
"text": "For the sake of convenience, the parties would be referred to as per their ranks before the Trial Court."
}
},
{
"from_name": "label",
"id": "0c73488bcfcd449baa36b007ff001fef",
"to_name": "text",
"type": "labels",
"value": {
"end": 7151,
"labels": [
"ISSUE"
],
"start": 6525,
"text": "\n 11. The points that arise for my consideration in this appeal are:- 1] Whether the prosecution has proved beyond reasonable doubt that on 01-05-2008 at about 03:00 hours, the appellant/accused No.1 joined by accused No.2 closed the mouth of the complainant, dragged him to the cattle shed which was adjacent to their hut and after tying his hands and legs to a pole there, removed his nicker and using a machete and a knife, amputated his penis shaft and also inflicted few more injuries on other parts of his body and thereby has committed the offences punishable under Sections 326 and 342 read with Section 34 of IPC?\n 2]"
}
},
{
"from_name": "label",
"id": "48db675109a444828455052e2a324c07",
"to_name": "text",
"type": "labels",
"value": {
"end": 7262,
"labels": [
"ISSUE"
],
"start": 7152,
"text": "Whether the judgment of conviction and order on sentence deserves any interference at the hands of this Court?"
}
},
{
"from_name": "label",
"id": "36dffac86560479a9f2cb46b6dc0a3cf",
"to_name": "text",
"type": "labels",
"value": {
"end": 7371,
"labels": [
"FAC"
],
"start": 7264,
"text": "12. The undisputed facts from the evidence led by the prosecution is that, the accused No.1 - Smt. Shivamma"
}
},
{
"from_name": "label",
"id": "787538f933f946f18462b508795285c3",
"to_name": "text",
"type": "labels",
"value": {
"end": 7469,
"labels": [
"FAC"
],
"start": 7372,
"text": "who is the appellant herein is the wife of the complainant cum alleged victim (PW-1 Manjunatha)."
}
},
{
"from_name": "label",
"id": "7b7efcda23ba498a85cbd7aeb31345dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 7725,
"labels": [
"FAC"
],
"start": 7470,
"text": "PW-2 - Kumari Shalini who is said to be a minor girl aged about 15 years as on the date of her evidence, is their daughter. PW-3 - Lakshmidevamma is the sister-in-law of the complainant and PW-4 - Lakshmana Reddy is the younger brother of the complainant."
}
},
{
"from_name": "label",
"id": "0edbec984ff244909126f04f889a53ab",
"to_name": "text",
"type": "labels",
"value": {
"end": 7847,
"labels": [
"FAC"
],
"start": 7726,
"text": "It is also not in dispute that on 01-05-2008, the complainant sustained injuries including amputation of his penis shaft."
}
},
{
"from_name": "label",
"id": "cc4c21b23a5e4ee797b9a1503af8e111",
"to_name": "text",
"type": "labels",
"value": {
"end": 8134,
"labels": [
"ANALYSIS"
],
"start": 7847,
"text": "\n In the light of these undisputed facts, the case of the prosecution is that, those injuries sustained by the complainant on the said day including grievous injury of amputation of penis shaft were inflicted by none else than the accused including the present appellant as accused No.1."
}
},
{
"from_name": "label",
"id": "4e18d0b0e5e14b76a66bc2a39cf336fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 8414,
"labels": [
"ANALYSIS"
],
"start": 8135,
"text": "On the other hand, the defence of the accused No.1 is that the complainant had fallen from a coconut tree while plucking coconuts from the tree and had fallen on the fence which included sharp edged zinc sheets and sphere shaped iron rods which have caused the injuries upon him."
}
},
{
"from_name": "label",
"id": "42684b2720424429a4b027ab2196b6be",
"to_name": "text",
"type": "labels",
"value": {
"end": 8616,
"labels": [
"ANALYSIS"
],
"start": 8415,
"text": "It is on the said point of whether the injuries found on the complainant were by the act of a human being and if so, by whom, the entire evidence of the production witnesses is required to be analysed."
}
},
{
"from_name": "label",
"id": "a039e987290d47918fcdeea799b22f7d",
"to_name": "text",
"type": "labels",
"value": {
"end": 8809,
"labels": [
"ANALYSIS"
],
"start": 8616,
"text": "\n 13. In order to prove the alleged incident of inflicting injuries upon the complainant as the one by none else than the accused No.1, the prosecution mainly relied upon two sets of witnesses."
}
},
{
"from_name": "label",
"id": "adb460fea85f4b95a727e3139fb8f37b",
"to_name": "text",
"type": "labels",
"value": {
"end": 9013,
"labels": [
"ANALYSIS"
],
"start": 8810,
"text": "The first set of witnesses is the complainant, his family members and close relatives of the complainant and the second set of witnesses is the residents of the village who are the independent witnesses."
}
},
{
"from_name": "label",
"id": "6d5e0147de014ed08a67a823f64c24e2",
"to_name": "text",
"type": "labels",
"value": {
"end": 9214,
"labels": [
"ANALYSIS"
],
"start": 9013,
"text": "\n 14. The first set of witnesses includes PW-1 Manjunatha who is said to be the complainant and victim in the case; his daughter PW-2 Kumari Shalini, his sister-in-law i.e. PW-3 -Lakshmidevamma.\n 15."
}
},
{
"from_name": "label",
"id": "4bf9a2d57a5645ca937eb3a085453175",
"to_name": "text",
"type": "labels",
"value": {
"end": 9425,
"labels": [
"ANALYSIS"
],
"start": 9215,
"text": "Among the first set of witnesses, PW-1 the victim, in his evidence, has stated that, on the date of incident in the evening at about of 8 0' clock, when he returned home, he saw the accused No.2 near his house."
}
},
{
"from_name": "label",
"id": "d74016ef81a34f729850b51b830084fa",
"to_name": "text",
"type": "labels",
"value": {
"end": 9493,
"labels": [
"ANALYSIS"
],
"start": 9426,
"text": "Thereafter the said accused left the place, then he had his dinner."
}
},
{
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"text": "Afterwards what happened he did not know."
}
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"text": "However, on the next day, he regained conscious in the Hospital."
}
},
{
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],
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"text": "His genital organ was cut and a cut injury was made on the lower bottom of his neck."
}
},
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"start": 9686,
"text": "The accused have thus cut by using a knife on that night."
}
},
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"text": "He stated that, it was the accused who have cut the same since he has actually seen it."
}
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],
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"text": "\nAccused No.2 made the cut while accused No.1 was holding him."
}
},
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"start": 9894,
"text": "They have also inflicted injuries behind his left shoulder, head and below the neck."
}
},
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"text": "The people of the village admitted him to Hospital."
}
},
{
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"labels": [
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],
"start": 10030,
"text": "\nAccused No.1 had poured water in the spot of the offence to wash out the blood."
}
},
{
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],
"start": 10111,
"text": "Then, he regained conscious and went to his sister-in-law and informed her the details."
}
},
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"end": 10297,
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],
"start": 10199,
"text": "First, he was shifted to Hospital at Chintamani and from there, to Victoria Hospital at Bengaluru."
}
},
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],
"start": 10298,
"text": "Police have recorded his statement at Chintamani as per Ex.P-1."
}
},
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"end": 10505,
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],
"start": 10362,
"text": "He also stated that he was assaulted and caused injuries on the lower part of the neck, head and cut his genital organ using knife and machete."
}
},
{
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"end": 10561,
"labels": [
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],
"start": 10506,
"text": "The witness stated that he is seeing the knife at MO-1."
}
},
{
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"value": {
"end": 10664,
"labels": [
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],
"start": 10562,
"text": "Stating that he was wearing a white colour nicker on the said day, he has identified the same at MO-2."
}
},
{
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"value": {
"end": 10769,
"labels": [
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],
"start": 10665,
"text": "He has further stated that his hands and legs were tied with a plastic rope which he identifies at MO-3."
}
},
{
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"id": "3b7a7f152009478e840a7d01c9f16a78",
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"end": 10831,
"labels": [
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],
"start": 10770,
"text": "Using the same rope, his mouth was also tied as well the ear."
}
},
{
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"value": {
"end": 10928,
"labels": [
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],
"start": 10832,
"text": "The Police have collected soil from the place of the incident and MO-4 is the blood stained mud."
}
},
{
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"id": "58d8fa4441324313815b5de5df3b09fb",
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"value": {
"end": 11009,
"labels": [
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],
"start": 10929,
"text": "The witness stated that accused No.2 had illicit relationship with accused No.1."
}
},
{
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"id": "54bda66950d846d4bf7bffb5a3ff16c9",
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"end": 11069,
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],
"start": 11009,
"text": "\nSince he had questioned that, they have committed this act."
}
},
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"value": {
"end": 11268,
"labels": [
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],
"start": 11070,
"text": "In his detailed cross-examination, several suggestions were made about the alleged improvements said to have been made by him in his evidence which were not there in his alleged complaint at Ex.P-1."
}
},
{
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"id": "2c7dc2e022bb4336b5ee4af052c6ebe5",
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"end": 11378,
"labels": [
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],
"start": 11269,
"text": "He has stated that his house includes a hall and a kitchen and these people will be in the hall of the house."
}
},
{
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"id": "c940ab94b30a4d1ab85d219f25eaf9f4",
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"end": 11428,
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],
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"text": "He lives with his two children in the said house."
}
},
{
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"labels": [
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"start": 11428,
"text": "\n 16. PW-2 Kumari Shalini, the daughter of PW-1 as well accused No.1, in her examination-in- chief, except admitting her relationship with PW-1 and accused No.1, has pleaded her ignorance about the alleged incident."
}
},
{
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"end": 11874,
"labels": [
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],
"start": 11645,
"text": "Though she stated that in three years, on one day, her father was admitted to a Government Hospital at Chintamani, but the reason for the same was that, he had fallen from a coconut tree sustaining injuries to his head and hands."
}
},
{
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"value": {
"end": 12157,
"labels": [
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],
"start": 11875,
"text": "Since according to prosecution, she being the daughter of the complainant, was aware of the alleged incident as well the alleged illicit relationship of her mother with accused No.2, she was permitted to be treated as hostile and the prosecution was permitted to cross- examine her."
}
},
{
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"id": "3b9df1bc80c44c11b9b6696170124bb0",
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"end": 12263,
"labels": [
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],
"start": 12158,
"text": "However, even in her cross- examination, the prosecution could not get any support from the said witness."
}
},
{
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"end": 12485,
"labels": [
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],
"start": 12264,
"text": "The relevant portions of her alleged statement before the Investigating Officer were read over to the witness and confronted to her, but the witness denied that she had given those statements to the Investigating Officer."
}
},
{
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"id": "0032fc7235a54285ae2b0d0ac46b6b78",
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"value": {
"end": 12559,
"labels": [
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],
"start": 12486,
"text": "Those portions of her statement were marked as Exs-P-2, P-3, P-4 and P-5."
}
},
{
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"id": "410acace15e54293aeeb92003404a5e5",
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"value": {
"end": 12965,
"labels": [
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],
"start": 12560,
"text": "In her cross-examination from the accused' side, she stated that on the previous night, when her father was admitted to the Hospital by Ashwatha Reddy, her uncle Lakshmana Reddy and Narayana Reddy, it was only herself, her mother and younger brother who were there in the house and her father was lifted from the coconut garden of Erappa Reddy and after changing his clothes, he was taken to the Hospital."
}
},
{
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"labels": [
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],
"start": 12965,
"text": "\n 17. PW-3 Lakshmidevamma, the sister-in-law of PW-1 has pleaded her ignorance about the alleged incident."
}
},
{
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"id": "b019165a4a6d46929d638f8d6ee632e9",
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"value": {
"end": 13215,
"labels": [
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],
"start": 13073,
"text": "She has even stated that, she does not know about her husband Narayanaswamy and others shifting the complainant for treatment to the Hospital."
}
},
{
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"id": "12c3f1f74b554933bd321b9dce6a9bbb",
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"value": {
"end": 13387,
"labels": [
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],
"start": 13215,
"text": "\nShe also stated that she does not know as to whether Srinivasa Reddy and Lakshmana Reddy had advised accused No.1 about her alleged illicit relationship with accused No.2."
}
},
{
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"id": "277a2c64dbdb431cbb90c42dff02f8a4",
"to_name": "text",
"type": "labels",
"value": {
"end": 13621,
"labels": [
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],
"start": 13388,
"text": "According to prosecution, even this witness was also fully aware of the incident, since she was said to have been heard from none else than the injured himself and had given her statement accordingly before the Investigating Officer."
}
},
{
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"id": "98d20bbf8c05411eadf2fa11bbfa12dc",
"to_name": "text",
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"value": {
"end": 13783,
"labels": [
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],
"start": 13622,
"text": "Since her evidence was diametrically opposite to the same, she too was permitted to be treated as hostile and the prosecution was permitted to cross-examine her."
}
},
{
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"id": "d653f10d0b9340d7b63f6ec26260e8cd",
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"value": {
"end": 13849,
"labels": [
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],
"start": 13783,
"text": "\nHowever, the prosecution could not get any support from her also."
}
},
{
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"id": "86544d90f0dc4e9281ef9131010b3719",
"to_name": "text",
"type": "labels",
"value": {
"end": 14024,
"labels": [
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],
"start": 13850,
"text": "The relevant portions of her alleged statement before the Investigating Officer were confronted to the witness and were marked at Ex.P-7, Ex.P-8, Ex.P-9, Ex.P-10 and Ex.P-11."
}
},
{
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"id": "f3ae7ab2eb974340afbaa936adc8d30f",
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"value": {
"end": 14034,
"labels": [
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],
"start": 14024,
"text": "\n 18. PW-4"
}
},
{
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"id": "0d69f73bd4a94b9593509b004ff9f962",
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"type": "labels",
"value": {
"end": 14231,
"labels": [
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],
"start": 14035,
"text": " Lakshmana Reddy, the younger brother of PW-1 also, according to the prosecution, had heard from none else than the injured complainant himself, but he did not support the case of the prosecution."
}
},
{
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"id": "d145d10e02024aebb9de8cdcabd1ed98",
"to_name": "text",
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"value": {
"end": 14359,
"labels": [
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],
"start": 14232,
"text": "He stated that though he is aware of his brother sustaining bleeding injuries, but he does not know about the alleged incident."
}
},
{
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"id": "92a9c1c172344552852abd5df74b4598",
"to_name": "text",
"type": "labels",
"value": {
"end": 14444,
"labels": [
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],
"start": 14360,
"text": "When his brother had come near his house, he noticed injures upon his genital organ."
}
},
{
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"id": "0acdc28c49b84832a4bde2c23f7e7316",
"to_name": "text",
"type": "labels",
"value": {
"end": 14576,
"labels": [
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],
"start": 14445,
"text": "Though he questioned as to how the same was caused, the injured did not say anything since he could not able to speak at that time."
}
},
{
"from_name": "label",
"id": "ff2f0264e7f540a98c0422754d6b8909",
"to_name": "text",
"type": "labels",
"value": {
"end": 14817,
"labels": [
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],
"start": 14577,
"text": "Then, he, joined by Ashwatha Reddy shifted the injured to the Government Hospital at Chintamani and after getting treatment for a day there, the injured was shifted to Victoria Hospital at Bengaluru where he was in-patient for fifteen days."
}
},
{
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"id": "402880594d894445961b8c216a03a939",
"to_name": "text",
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"value": {
"end": 14970,
"labels": [
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],
"start": 14818,
"text": "He further stated that he has not given any statement before the Police and does not even know about the complainant giving complaint before the Police."
}
},
{
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"id": "786509278c0b4bdaad62d778622926f1",
"to_name": "text",
"type": "labels",
"value": {
"end": 15077,
"labels": [
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],
"start": 14971,
"text": "He also pleaded his ignorance about the alleged illicit relationship between accused No.1 and accused No2."
}
},
{
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"id": "75432c2fdaf748008877616779243e87",
"to_name": "text",
"type": "labels",
"value": {
"end": 15119,
"labels": [
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],
"start": 15078,
"text": "This witness also was treated as hostile."
}
},
{
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"id": "e326aaeb2ae4438fb97a69d06ad1bff8",
"to_name": "text",
"type": "labels",
"value": {
"end": 15220,
"labels": [
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],
"start": 15120,
"text": "Still, the prosecution in its cross- examination of the witness, could not get any support from him."
}
},
{
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"id": "2e6b361d74ca4c99994f10bc0b84a584",
"to_name": "text",
"type": "labels",
"value": {
"end": 15325,
"labels": [
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],
"start": 15221,
"text": "The portions of his alleged statement before the Investigating Officer were marked at Exs.P-12 and P-13."
}
},
{
"from_name": "label",
"id": "d59cd45ac1614f9d87272f17e9f5af69",
"to_name": "text",
"type": "labels",
"value": {
"end": 15549,
"labels": [
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],
"start": 15326,
"text": "In his cross-examination from the accused' side, he stated that one Erappa Reddy has got a coconut garden in his village and in order to avoid the problems from the monkeys, he has put fencing of iron rods around the trees."
}
},
{
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"id": "d0d2069cf0e34b3fb908f0bbf07fd25f",
"to_name": "text",
"type": "labels",
"value": {
"end": 15820,
"labels": [
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],
"start": 15549,
"text": "\n 19. From the above evidence of the complainant himself and the other family members and close relatives of the complainant, what can be seen is that, except the complainant, none else have supported the case of the prosecution including the daughter of the complainant."
}
},
{
"from_name": "label",
"id": "79b3d48027e74fc6a07b94c284f37065",
"to_name": "text",
"type": "labels",
"value": {
"end": 15972,
"labels": [
"ANALYSIS"
],
"start": 15821,
"text": "According to complainant (PW-1), in his house, himself, his wife and two children are residing and they used to sleep in the hall portion of the house."
}
},
{
"from_name": "label",
"id": "de835193311948138a5b55a6d44b8ae7",
"to_name": "text",
"type": "labels",
"value": {
"end": 16596,
"labels": [
"ANALYSIS"
],
"start": 15973,
"text": "Presuming the same were to be true then, had really the incident of accused No.2 coming to their house and the said accused joined by none else than accused No.1 who is the mother of PW-2 forcibly dragging the complainant to an adjacent cattle shed and assaulting him with knife or machete or both, inflicting grievous and multiple injuries upon him, had taken place then, it was naturally expected of the children of the complainant/injured and accused No.1, more particularly, the elder daughter Kumari Shalini, who was about ten years old as on the said date, getting disturbed and waking up and witnessing the incident."
}
},
{
"from_name": "label",
"id": "b16d6d9c3973492d952d9015acf7613d",
"to_name": "text",
"type": "labels",
"value": {
"end": 16845,
"labels": [
"ANALYSIS"
],
"start": 16597,
"text": "On the contrary, the said witness Shalini, in her evidence, apart from stating that no such alleged incident had taken place, has categorically and specifically stated that, on the night of the incident, her father i.e. PW-1 was not in their house."
}
},
{
"from_name": "label",
"id": "e387900e37474063aec5279065a526fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 17069,
"labels": [
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],
"start": 16846,
"text": "This, at the threshold, puts an obstacle to believe that, any such incident of anybody entering his house on that night and inflicting multiple injuries upon him as well about the involvement of the accused in the said Act."
}
},
{
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"id": "3575b476702446cc925ab4a476fea57f",
"to_name": "text",
"type": "labels",
"value": {
"end": 17371,
"labels": [
"ANALYSIS"
],
"start": 17069,
"text": "\n 20. Secondly, according to the prosecution, after the incident, the complainant some how getting himself released went to the house of his brother Narayanaswamy, where he met his sister-in-law - PW-3 - Lakshmidevamma as well his younger brother - Lakshmana Reddy and informed them about the incident."
}
},
{
"from_name": "label",
"id": "a8b3d3b9e3524b6fb9f9fecd7a85415b",
"to_name": "text",
"type": "labels",
"value": {
"end": 17792,
"labels": [
"ANALYSIS"
],
"start": 17372,
"text": "However as already observed above, the said younger brother Lakshmana Reddy (PW-4) though has stated that, he saw his brother (complainant) sustaining injuries to his genital organ, but it was at about 12 o'clock on 01-05-2008 in the afternoon and that despite he specifically asking the cause for the said injury, the injured brother was unable to speak, as such, he did not tell as to how the said injury had happened."
}
},
{
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"id": "c0c1ff8e8ebe4a7daf2f547d79739110",
"to_name": "text",
"type": "labels",
"value": {
"end": 17929,
"labels": [
"ANALYSIS"
],
"start": 17793,
"text": "In this way, the very close relative who is none else than the full blood brother of PW-1 has not supported the case of the prosecution."
}
},
{
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"id": "d8d893ee10d042a9aef86bf618498e25",
"to_name": "text",
"type": "labels",
"value": {
"end": 18081,
"labels": [
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],
"start": 17929,
"text": "\nThe said brother went to the extent of even stating that he does not know about the alleged illicit relationship between accused No.1 and accused No.2."
}
},
{
"from_name": "label",
"id": "23a204e0f9a04546a8111ce6acd73c90",
"to_name": "text",
"type": "labels",
"value": {
"end": 18219,
"labels": [
"ANALYSIS"
],
"start": 18081,
"text": "\n Similarly PW-3 Lakshmidevamma, the sister- in-law of the injured complainant also has pleaded her ignorance about the alleged incident."
}
},
{
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"id": "c7a1e6476e2341649bf3c4c7483b17e9",
"to_name": "text",
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"end": 18361,
"labels": [
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],
"start": 18220,
"text": "She has gone to the extent of telling that she does not even know about the injured sustaining injuries and he being shifted to the Hospital."
}
},
{
"from_name": "label",
"id": "1705ced8ba2f4942bb99eabc4821aae2",
"to_name": "text",
"type": "labels",
"value": {
"end": 18602,
"labels": [
"ANALYSIS"
],
"start": 18362,
"text": "In this manner, when the very family members involving the daughter, brother and sister-in-law have not supported the case of the prosecution, the sole evidence of PW-1 who claims himself to be the injured has to be analysed very carefully."
}
},
{
"from_name": "label",
"id": "0819d090da154b30a0fb648f7966625a",
"to_name": "text",
"type": "labels",
"value": {
"end": 19032,
"labels": [
"ANALYSIS"
],
"start": 18602,
"text": "\n 21. The second set of witnesses upon whom the prosecution relied upon to prove the alleged guilt against the accused are, PW-5 Reddappa, PW-6 Lakshmana Reddy, and PW-13 Srinivasa Reddy, who, according to the prosecution are the residents of the same village, who had earlier conducted a panchayat in connection with the alleged illicit relationship between accused No.1 and accused No.2 and had advised accused No.1 suitably."
}
},
{
"from_name": "label",
"id": "01570264da62490da3eb284a6b88d52e",
"to_name": "text",
"type": "labels",
"value": {
"end": 19418,
"labels": [
"ANALYSIS"
],
"start": 19033,
"text": "Further, on the date of incident and after the incident, while injured PW-1 (complainant) was said to have been going to the house of his brother with bleeding injuries on his body, it is these three witnesses who saw him on the way and heard from the mouth of none else than PW-1 about the incident and the alleged overt act of the accused in inflicting the injuries upon the injured."
}
},
{
"from_name": "label",
"id": "33b00248a6834f6087f1ff971d9ca350",
"to_name": "text",
"type": "labels",
"value": {
"end": 19501,
"labels": [
"ANALYSIS"
],
"start": 19419,
"text": "However, none of these three witnesses have supported the case of the prosecution."
}
},
{
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"id": "301ad0565ee7413a91887ef692b72586",
"to_name": "text",
"type": "labels",
"value": {
"end": 19591,
"labels": [
"ANALYSIS"
],
"start": 19502,
"text": "None of them have stated that they heard about the alleged incident from the complainant."
}
},
{
"from_name": "label",
"id": "910ebae7e43f4d969d840dacb4cc121d",
"to_name": "text",
"type": "labels",
"value": {
"end": 19956,
"labels": [
"ANALYSIS"
],
"start": 19592,
"text": "Though PW-5 has stated that in connection with the alleged illicit relationship of accused No.1, a panchayat was held, wherein himself was also one of the panchas and had advised accused No.1 - Shivamma suitably, but he specifically stated that, on the date of the alleged incident, he was not in the village, as such, he does not know the details of the incident."
}
},
{
"from_name": "label",
"id": "475d7bdff5fc45ebbe34ee2fb3f4be79",
"to_name": "text",
"type": "labels",
"value": {
"end": 20328,
"labels": [
"ANALYSIS"
],
"start": 19957,
"text": "He further stated that after his return, though he came to know that some incident had taken place, since to the doctor at Victoria Hospital at the time of admission of the injured, his telephone number was given by the complainant and the said Doctor had called him over phone, he had only told the Doctor to give suitable treatment to the injured and ensure his living."
}
},
{
"from_name": "label",
"id": "03fc264586a7452295cdb24c7500c7d2",
"to_name": "text",
"type": "labels",
"value": {
"end": 20483,
"labels": [
"ANALYSIS"
],
"start": 20329,
"text": "Despite the prosecution subjecting him to a detailed cross-examination after getting him treated as hostile, still, it could not get any support from him."
}
},
{
"from_name": "label",
"id": "c8ade3cef3c74d678923199c170b918b",
"to_name": "text",
"type": "labels",
"value": {
"end": 20598,
"labels": [
"ANALYSIS"
],
"start": 20484,
"text": "The witness has even denied that he has given statement before the Investigating Officer as per Exs.P-14 and P-15."
}
},
{
"from_name": "label",
"id": "43fdfdcad16c401f8165bb55c82ca123",
"to_name": "text",
"type": "labels",
"value": {
"end": 21041,
"labels": [
"ANALYSIS"
],
"start": 20599,
"text": "In his cross- examination from the accused' side attempts were made to show that, he being a former Chairman of the Mandal Panchayat and a Member in the Committee of the Temple in the village, had asked accused No.1 to vacate their house to enable the extension of the Temple and since she refused to vacate, a false complaint was lodged making use of the complainant who incidentally had sustained injury by falling down from a coconut tree."
}
},
{
"from_name": "label",
"id": "3cac0853d02b498ab1556f0a97937f84",
"to_name": "text",
"type": "labels",
"value": {
"end": 21096,
"labels": [
"ANALYSIS"
],
"start": 21042,
"text": "However, PW-5 did not admit those suggestions as true."
}
},
{
"from_name": "label",
"id": "cbb9c847720c48f1ae8a4bd5e2fe6627",
"to_name": "text",
"type": "labels",
"value": {
"end": 21217,
"labels": [
"ANALYSIS"
],
"start": 21097,
"text": "Still, the fact remains that, even in his cross-examination, the prosecution could not get any support from the witness."
}
},
{
"from_name": "label",
"id": "91f6cf9b5a66438db360e5ebaf43606f",
"to_name": "text",
"type": "labels",
"value": {
"end": 21302,
"labels": [
"ANALYSIS"
],
"start": 21219,
"text": "22. The case of PW-6 Lakshmana Reddy is in no way different from the case of PW-5."
}
},
{
"from_name": "label",
"id": "df259c269f88477ca36fa1e9c1c91676",
"to_name": "text",
"type": "labels",
"value": {
"end": 21611,
"labels": [
"ANALYSIS"
],
"start": 21303,
"text": "He was also projected by the prosecution keeping him on the same standing as that of PW-5 and projecting him also to be one of the panchas in the Panchayat and also as a person having heard about the details of the incident immediately after such incident from none else than the injured complainant himself."
}
},
{
"from_name": "label",
"id": "a35ae69a7d404709b345c33fbb7f2755",
"to_name": "text",
"type": "labels",
"value": {
"end": 21821,
"labels": [
"ANALYSIS"
],
"start": 21613,
"text": "However, this witness also though stated that with respect to some dispute between the complainant and accused No.1, a panchayat was held, he stated that he has not heard anything from the injured personally."
}
},
{
"from_name": "label",
"id": "8c45609d04b144629a99c6d50d380b21",
"to_name": "text",
"type": "labels",
"value": {
"end": 22072,
"labels": [
"ANALYSIS"
],
"start": 21822,
"text": "On the other hand, he stated that it was the younger brother of the complainant, i.e. Lakshmana Reddy who had told him about the incident stating that, his brother was assaulted and his genital organ was cut, as such, he was admitted to the Hospital."
}
},
{
"from_name": "label",
"id": "84c69fa92d90466aa012f456deb8e8f8",
"to_name": "text",
"type": "labels",
"value": {
"end": 22172,
"labels": [
"ANALYSIS"
],
"start": 22073,
"text": "The said Lakshmana Reddy had also told him that it was accused No.1 who had committed the said act."
}
},
{
"from_name": "label",
"id": "6ac3f560bd01481b9d1b67f2fb8fc2e6",
"to_name": "text",
"type": "labels",
"value": {
"end": 22218,
"labels": [
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],
"start": 22173,
"text": "The same thing he had told before the Police."
}
},
{
"from_name": "label",
"id": "adccf36d9a3a40a688e13eba89dfb6b3",
"to_name": "text",
"type": "labels",
"value": {
"end": 22577,
"labels": [
"ANALYSIS"
],
"start": 22219,
"text": "Even if the said statement of PW-6 that he heard from the younger brother of injured complainant, i.e. Lakshmana Reddy is to be considered, still, it cannot be ignored of the fact that, the very Lakshmana Reddy (PW-4), the younger brother of the complainant, as observed above, has totally turned hostile and not at all supported the case of the prosecution."
}
},
{
"from_name": "label",
"id": "84476591a60745f592b239de07b7997f",
"to_name": "text",
"type": "labels",
"value": {
"end": 22735,
"labels": [
"ANALYSIS"
],
"start": 22578,
"text": "When that being the case, the said Lakshmana Reddy telling anything either about the incident or about the alleged role of accused No.1 to PW-6 is ruled out."
}
},
{
"from_name": "label",
"id": "50c3579a38be4b8a8787f7b9ccccbec0",
"to_name": "text",
"type": "labels",
"value": {
"end": 22836,
"labels": [
"ANALYSIS"
],
"start": 22736,
"text": "Further, even in the cross- examination of PW-6, the prosecution could not get any support from him."
}
},
{
"from_name": "label",
"id": "cfbc91446f664dd8bbb5f76df7bcf51b",
"to_name": "text",
"type": "labels",
"value": {
"end": 23102,
"labels": [
"ANALYSIS"
],
"start": 22837,
"text": "The witness has denied that he had given the statement before the Investigating Officer as per Exs.P-16 and P-17.\n 23. PW-13 - Srinivas Reddy has categorically stated that he has neither seen the incident nor stated before the Police that he has seen the incident.\n"
}
},
{
"from_name": "label",
"id": "16527f27dc6a425dadb7e562c82d9bb3",
"to_name": "text",
"type": "labels",
"value": {
"end": 23220,
"labels": [
"ANALYSIS"
],
"start": 23102,
"text": "On the said date, after he returned to his home, he came to know that injured Manjunatha was admitted to the Hospital."
}
},
{
"from_name": "label",
"id": "6d43fe89d95a47beac98d8f8d7384d41",
"to_name": "text",
"type": "labels",
"value": {
"end": 23280,
"labels": [
"ANALYSIS"
],
"start": 23221,
"text": "However, he did not go and meet Manjunatha in the Hospital."
}
},
{
"from_name": "label",
"id": "d1e3ee00abc64f5badc10dfe22b6601f",
"to_name": "text",
"type": "labels",
"value": {
"end": 23368,
"labels": [
"ANALYSIS"
],
"start": 23281,
"text": "Similarly the said Manjunatha also did not meet him and stated as to who assaulted him."
}
},
{
"from_name": "label",
"id": "633490891f014da0bb6c9412cbfb7508",
"to_name": "text",
"type": "labels",
"value": {
"end": 23530,
"labels": [
"ANALYSIS"
],
"start": 23369,
"text": "Even after treating this witness also as hostile, and prosecution was permitted to cross-examine him as well, the prosecution could not get any support from him."
}
},
{
"from_name": "label",
"id": "c1a9087039f440c08403dce9c53d74ce",
"to_name": "text",
"type": "labels",
"value": {
"end": 23672,
"labels": [
"ANALYSIS"
],
"start": 23531,
"text": "The witness has even denied that he has given any statement before the Investigating Officer as per Exs.P-27, P-28, P-29, P-30 and P-31.\n 24."
}
},
{
"from_name": "label",
"id": "8f2a5001d26643adb0e223c096d5d52b",
"to_name": "text",
"type": "labels",
"value": {
"end": 24002,
"labels": [
"ANALYSIS"
],
"start": 23673,
"text": "In this way, the second set of important witnesses, who, according to the prosecution were heard about the incident and the alleged role of the accused in such incident immediately after the alleged incident, that too, from none else than the injured complainant/PW-1 himself, also have not supported the case of the prosecution."
}
},
{
"from_name": "label",
"id": "e51234755a3047a197f160f14e1ac5b3",
"to_name": "text",
"type": "labels",
"value": {
"end": 24282,
"labels": [
"ANALYSIS"
],
"start": 24003,
"text": "In such a situation, when none of the family members and none of the independent material witnesses have supported the case of the prosecution, the appreciation of the evidence of PW-1 to ascertain whether this evidence is trustworthy and reliable requires more care and caution."
}
},
{
"from_name": "label",
"id": "e1cf51db36bf4643a1829ec8e886798e",
"to_name": "text",
"type": "labels",
"value": {
"end": 24509,
"labels": [
"ANALYSIS"
],
"start": 24282,
"text": "\n 25. As observed above, PW-1 the victim by a prima facie reading of his evidence appears to have supported the case of the prosecution by telling that it was the accused who had inflicted injuries upon him on the alleged date."
}
},
{
"from_name": "label",
"id": "fdec62d71acd4ecfa134ef31e3804635",
"to_name": "text",
"type": "labels",
"value": {
"end": 24693,
"labels": [
"ANALYSIS"
],
"start": 24510,
"text": "However, a careful reading of his evidence would go to show that the witness has stated that after he returned to his house on the date of incident, in the evening, he had his dinner."
}
},
{
"from_name": "label",
"id": "40d98b0a57ba48babcdc03f01ea938f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 24737,
"labels": [
"ANALYSIS"
],
"start": 24694,
"text": "Thereafter, he does not know what they did."
}
},
{
"from_name": "label",
"id": "07e9f4ba4a5a4085ae936673429ed209",
"to_name": "text",
"type": "labels",
"value": {
"end": 24805,
"labels": [
"ANALYSIS"
],
"start": 24738,
"text": "He regained conscious only in the Hospital on the next day morning."
}
},
{
"from_name": "label",
"id": "577a071e6b9149599dbcc40b0c3875f0",
"to_name": "text",
"type": "labels",
"value": {
"end": 24875,
"labels": [
"ANALYSIS"
],
"start": 24806,
"text": "The genital organ was cut and lower portion of his neck was also cut."
}
},
{
"from_name": "label",
"id": "32338a3b4d2744779284985b954de505",
"to_name": "text",
"type": "labels",
"value": {
"end": 25038,
"labels": [
"ANALYSIS"
],
"start": 24876,
"text": "If that were to be the case, then after his dinner, if he was not aware as to what was made to him, then, how come he say that it was the accused who had done it."
}
},
{
"from_name": "label",
"id": "5cbb8ef4b74947e9ac34a955a6d6640d",
"to_name": "text",
"type": "labels",
"value": {
"end": 25279,
"labels": [
"ANALYSIS"
],
"start": 25040,
"text": "Secondly, though he (PW-1) has stated that it was the accused who have caused such an act since he has seen it from his own eyes, but, as already observed above, the very same witness has stated that, it is not known as to who had done it."
}
},
{
"from_name": "label",
"id": "41ee45f6427749249ef8bef46d0763d5",
"to_name": "text",
"type": "labels",
"value": {
"end": 25380,
"labels": [
"ANALYSIS"
],
"start": 25280,
"text": "Further, he has also stated that he regained conscious only in the Hospital on the next day morning."
}
},
{
"from_name": "label",
"id": "92bca456c6554700baff66959c28ceb4",
"to_name": "text",
"type": "labels",
"value": {
"end": 25527,
"labels": [
"ANALYSIS"
],
"start": 25381,
"text": "However, in the very same evidence at a later stage, he has stated that when accused No.1 poured water to wash out the blood, he gained conscious."
}
},
{
"from_name": "label",
"id": "7bf464f5819041beb1418fc5525364c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 25704,
"labels": [
"ANALYSIS"
],
"start": 25528,
"text": "Thus, even with respect to his alleged regaining consciousness also, the witness is not sure whether it was in his house only or was it at the Hospital on the next day morning."
}
},
{
"from_name": "label",
"id": "5176e7e8bb984b2f8097f7cac6eacc87",
"to_name": "text",
"type": "labels",
"value": {
"end": 26117,
"labels": [
"ANALYSIS"
],
"start": 25706,
"text": "Thirdly, if his statement that he regained conscious only on the next day morning in the Hospital is accepted and believed, then, the contention of the prosecution that PW-5, PW-6 and PW-13 were the three witnesses who heard about the incident from the mouth of injured complainant himself immediately after the incident and that they had seen the injured victim with bleeding injuries, becomes false by itself."
}
},
{
"from_name": "label",
"id": "1f7f6d0bc608494d88489f32838c9d60",
"to_name": "text",
"type": "labels",
"value": {
"end": 26406,
"labels": [
"ANALYSIS"
],
"start": 26118,
"text": "As such, the evidence of those three witnesses, i.e.PW-5, PW-6 and PW-13 that they did not see the injured complainant immediately after the alleged incident becomes more nearer to the truth and believable than the contention of the prosecution that they had seen the injured on that day."
}
},
{
"from_name": "label",
"id": "6beca8f0e9ac40109f10f19278dcd97d",
"to_name": "text",
"type": "labels",
"value": {
"end": 26870,
"labels": [
"ANALYSIS"
],
"start": 26406,
"text": "\n Fourthly, the very same injured witness who has identified the complaint at Ex.P-1 has stated in his complaint at Ex.P-1 that while accused No.2 was holding him firmly, it was accused No.1 - wife who cut the genital organ with a machete (chopper machhu), however, in his evidence he has put it in the reverse order that it was accused No.1 his wife who was holding him firmly and it was accused No.2 who inflicted injuries upon him by cutting his genital organ."
}
},
{
"from_name": "label",
"id": "3ccbb503dc924f6dba83805be7513bd7",
"to_name": "text",
"type": "labels",
"value": {
"end": 27006,
"labels": [
"ANALYSIS"
],
"start": 26870,
"text": "\nFurther, in the complaint he has stated that, the weapon used was a machete whereas in his evidence, he has called the same as a knife."
}
},
{
"from_name": "label",
"id": "2eecf1ad41964275a7a98196f3c7cfab",
"to_name": "text",
"type": "labels",
"value": {
"end": 27151,
"labels": [
"ANALYSIS"
],
"start": 27007,
"text": "The said contradiction was brought in his cross-examination as well in the cross-examination of the Investigating Officer from the accused side."
}
},
{
"from_name": "label",
"id": "49602da96ee9411a95373238540c7769",
"to_name": "text",
"type": "labels",
"value": {
"end": 27315,
"labels": [
"ANALYSIS"
],
"start": 27151,
"text": "\n Fifthly, in his evidence, PW-1 has stated that he does not know who inflicted injuries upon him and he regained conscious on the next day morning in the Hospital."
}
},
{
"from_name": "label",
"id": "27bc5a30531d47a189a38f9a671c9d64",
"to_name": "text",
"type": "labels",
"value": {
"end": 27405,
"labels": [
"ANALYSIS"
],
"start": 27316,
"text": "Later, he said that he himself has seen the occurrence of the incident from his own eyes."
}
},
{
"from_name": "label",
"id": "21442701bcaa480589e016623d44b9ac",
"to_name": "text",
"type": "labels",
"value": {
"end": 27674,
"labels": [
"ANALYSIS"
],
"start": 27405,
"text": "\nHowever, the said statement that he has seen the incident by himself in his own eyes has not been stated by him in his complaint which was also elicited as an improvement in the cross-examination of this witness as well of Investigation Officer from the accused' side."
}
},
{
"from_name": "label",
"id": "eb8d0bc765414b58905042e5a701396f",
"to_name": "text",
"type": "labels",
"value": {
"end": 27986,
"labels": [
"ANALYSIS"
],
"start": 27674,
"text": "\n Similarly, the evidence of PW-1 that accused No.1 washing the blood stains from the spot and due to which, he regained conscious and also using plastic rope his legs, hands, mouth and ears were all tied by the accused were all shown to be an improvement made by this witness for the first time in his evidence."
}
},
{
"from_name": "label",
"id": "8922ffcfde1c412e9ff286ade0decd06",
"to_name": "text",
"type": "labels",
"value": {
"end": 28250,
"labels": [
"ANALYSIS"
],
"start": 27988,
"text": "The said witness (PW-1) has further stated that apart from admitting a suggestion that he always meets the Police and attends to their personal work, has volunteered to say that, he travels with them in their motor cycle and challenges the people in the village."
}
},
{
"from_name": "label",
"id": "033d594a5fd64b0da79f35469ca11867",
"to_name": "text",
"type": "labels",
"value": {
"end": 28333,
"labels": [
"ANALYSIS"
],
"start": 28251,
"text": "He also stated that, he also works as an agent in securing the Caste Certificates."
}
},
{
"from_name": "label",
"id": "1b3a0af5a81c4191a96d7c7f1d55ac75",
"to_name": "text",
"type": "labels",
"value": {
"end": 28490,
"labels": [
"ANALYSIS"
],
"start": 28334,
"text": "Further, the witness has also stated that, he helps the Police by signing several mahazars as a panch, as such, the Police attends his personal work neatly."
}
},
{
"from_name": "label",
"id": "eb1eb745bf544f669fbe0571210db3e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 28625,
"labels": [
"ANALYSIS"
],
"start": 28491,
"text": "The witness himself volunteered to say that even if he gets a stomach pain, it will be the Police who would admit him to the Hospital."
}
},
{
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"id": "ddf6d371896b46e2b066c3051713b95a",
"to_name": "text",
"type": "labels",
"value": {
"end": 28881,
"labels": [
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],
"start": 28626,
"text": "In this way, the witness apart from showing that there are lot of contradictions and improvements in his evidence, has himself shown that, he is getting lot of favours from the complainant Police since he attends to their personal and various other works."
}
},
{
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"id": "aa9935c04ec44954a2197613a051800e",
"to_name": "text",
"type": "labels",
"value": {
"end": 29100,
"labels": [
"ANALYSIS"
],
"start": 28882,
"text": "In such a circumstance, the sole evidence of PW-1 injured which lacks reliability upon it and appears to be not safe to rely upon, cannot be made the sole basis for convicting the accused No.1 for the alleged offences."
}
},
{
"from_name": "label",
"id": "0a475c04230044f2aa124d456484a956",
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"value": {
"end": 29305,
"labels": [
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],
"start": 29102,
"text": "26. The remaining witnesses examined by the prosecution, though are not material witnesses, still, they too have not supported the case of the prosecution to take the case of the prosecution any further."
}
},
{
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"id": "52bd7a2c4b124360b5521633f93d4ae7",
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"end": 29315,
"labels": [
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],
"start": 29305,
"text": "\n 27. PW-7"
}
},
{
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"id": "6c00575ac2864b54a06dd574287d3558",
"to_name": "text",
"type": "labels",
"value": {
"end": 29531,
"labels": [
"ANALYSIS"
],
"start": 29316,
"text": "- Ashwatha Reddy, according to the prosecution, was the one who had seen the injured complainant and after hearing from his mouth about the alleged incident, had shifted him to the Government Hospital at Chintamani."
}
},
{
"from_name": "label",
"id": "f8ccd4c802714924912a16c82f1944c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 29824,
"labels": [
"ANALYSIS"
],
"start": 29532,
"text": "However, the said witness though has stated in his evidence that he got admitted the injured to the Government Hospital at Chintamani, but stated that the younger brother of the injured had told him that the injured had fallen from a tree as such, he was required to be taken to the Hospital."
}
},
{
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"id": "fa3bc0ab9e7048e7b528c3948fd291b0",
"to_name": "text",
"type": "labels",
"value": {
"end": 29950,
"labels": [
"ANALYSIS"
],
"start": 29825,
"text": "Thus, he, joined by said Lakshmana Reddy, the younger brother of the injured shifted the injured complainant to the Hospital."
}
},
{
"from_name": "label",
"id": "bfe4b9c4bd804f4492e1d8fff7738fc3",
"to_name": "text",
"type": "labels",
"value": {
"end": 30067,
"labels": [
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],
"start": 29951,
"text": "He categorically stated that nobody told him that the injured was assaulted by any one, much less, the accused No.1."
}
},
{
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"id": "54a2546c7ff54a48a0dd20b74eb1e24d",
"to_name": "text",
"type": "labels",
"value": {
"end": 30161,
"labels": [
"ANALYSIS"
],
"start": 30068,
"text": "This witness also was treated as hostile and prosecution was permitted to cross- examine him."
}
},
{
"from_name": "label",
"id": "6e6d52059a6547f0afa2d12e94510bb0",
"to_name": "text",
"type": "labels",
"value": {
"end": 30231,
"labels": [
"ANALYSIS"
],
"start": 30162,
"text": "However, the prosecution could not get any support from this witness."
}
},
{
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"id": "88b6444dffb74ea292584deea2c7ff53",
"to_name": "text",
"type": "labels",
"value": {
"end": 30351,
"labels": [
"ANALYSIS"
],
"start": 30232,
"text": "His alleged statements before the Investigating Officer were confronted to the witness and marked at Exs.P-18 and P-19."
}
},
{
"from_name": "label",
"id": "c411ac0dab88463fa1281b60582b5f7e",
"to_name": "text",
"type": "labels",
"value": {
"end": 30424,
"labels": [
"ANALYSIS"
],
"start": 30352,
"text": "In this manner, PW-7 also has not supported the case of the prosecution."
}
},
{
"from_name": "label",
"id": "d8800a906db24186909bb457fb6a3d4e",
"to_name": "text",
"type": "labels",
"value": {
"end": 30860,
"labels": [
"ANALYSIS"
],
"start": 30424,
"text": "\n 28. PW-8 - Narayanaswamy who is the brother- in- law of the injured complainant has stated that his another brother-in-law, i.e. Lakshmana Reddy (PW-4) informed him about the incident over phone, as such, he went to the Government Hospital at Chintamani and thereafter on the advise of the Doctor, the injured was shifted to Bengaluru, however, in order to make financial arrangement for medical expenses, he came back to his village."
}
},
{
"from_name": "label",
"id": "7ce320ea5101487b80eea0630e6e5ca4",
"to_name": "text",
"type": "labels",
"value": {
"end": 30998,
"labels": [
"ANALYSIS"
],
"start": 30861,
"text": "The witness has specifically stated that he did not enquire with the injured about the incident since he was not in a condition to speak."
}
},
{
"from_name": "label",
"id": "ac54eee221a248738297c6efa1077fcc",
"to_name": "text",
"type": "labels",
"value": {
"end": 31230,
"labels": [
"ANALYSIS"
],
"start": 30999,
"text": "On the other hand, he stated that the injured and his wife were happy and he does not know about the alleged panchayat said to have been held in the village of the complainant wherein the accused No.1 was said to have been advised."
}
},
{
"from_name": "label",
"id": "69387420a0cc4efca96c7f3c0a26888b",
"to_name": "text",
"type": "labels",
"value": {
"end": 31328,
"labels": [
"ANALYSIS"
],
"start": 31231,
"text": "Even this witness also was treated as hostile and prosecution was permitted to cross-examine him."
}
},
{
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"id": "e5e66eccc9a44503aa20503d17ace4bb",
"to_name": "text",
"type": "labels",
"value": {
"end": 31384,
"labels": [
"ANALYSIS"
],
"start": 31329,
"text": "However, it could not get any support from the witness."
}
},
{
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"id": "4c0cef27dfef4027a5c8048ba71288c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 31500,
"labels": [
"ANALYSIS"
],
"start": 31385,
"text": "The confronted portions of his alleged statement before the Investigating Officer were marked at Exs.P-20 and P-21."
}
},
{
"from_name": "label",
"id": "8cdafa614d2f44aa97083e8e4bda0d82",
"to_name": "text",
"type": "labels",
"value": {
"end": 31510,
"labels": [
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],
"start": 31500,
"text": "\n 29. PW-9"
}
},
{
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"id": "f76b75efe84e4808b847a1d1b7abe1dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 31698,
"labels": [
"ANALYSIS"
],
"start": 31511,
"text": " Bachi Reddy and PW-10 Anjaneya Reddy were examined by the prosecution, projecting them as the panch witnesses for mahazar for the alleged scene of offence cum seizure mahazar at Ex.P-6."
}
},
{
"from_name": "label",
"id": "27fd932f6b014a8da8d0f6e612c867b9",
"to_name": "text",
"type": "labels",
"value": {
"end": 31949,
"labels": [
"ANALYSIS"
],
"start": 31699,
"text": "Both these witnesses have clearly stated that the Police have obtained their signatures upon a pre- prepared document and without knowing as to what that document was, they have singed to the said document since the Police had asked them to sign it.\n"
}
},
{
"from_name": "label",
"id": "e4ac630ee1a242b996bfc7015c70e5e8",
"to_name": "text",
"type": "labels",
"value": {
"end": 32036,
"labels": [
"ANALYSIS"
],
"start": 31949,
"text": "In this way, the prosecution could not get any support from the mahazar witnesses also."
}
},
{
"from_name": "label",
"id": "c22e08f2b2f54e71899299009b380e57",
"to_name": "text",
"type": "labels",
"value": {
"end": 32340,
"labels": [
"ANALYSIS"
],
"start": 32037,
"text": "As such, the evidence of the Investigating Officer (PW-11) that on 01-05-2008, he drew a scene of offence panchanama as per Ex.P-6 and from the spot of the offence, he also seized the material objects which are marked at MO-1 to MO-4 have remained un-corroborated by the evidence of these two witnesses."
}
},
{
"from_name": "label",
"id": "4c0a6095b9c34f1c8baaa2be13061109",
"to_name": "text",
"type": "labels",
"value": {
"end": 32487,
"labels": [
"ANALYSIS"
],
"start": 32341,
"text": "Hence, the alleged scene of offence as well the alleged seizure of the Material Objects at MO-1 to MO-4 also stands not proved by the prosecution."
}
},
{
"from_name": "label",
"id": "200cdab1cf8f486aa1cd8691ed2f80ac",
"to_name": "text",
"type": "labels",
"value": {
"end": 32752,
"labels": [
"ANALYSIS"
],
"start": 32487,
"text": "\n 30. At this stage, one more discrepancy that can be noticed in the case of the prosecution is that, according to the Investigating Officer, the weapon seized from the spot under alleged panchanama at Ex.P-6 was a machete (chopper/machchu) which is marked at MO-1."
}
},
{
"from_name": "label",
"id": "361164d326f24875818eeefd6f729ad4",
"to_name": "text",
"type": "labels",
"value": {
"end": 32877,
"labels": [
"ANALYSIS"
],
"start": 32753,
"text": "However, as already observed above, PW-1 the injured in his evidence has stated that he was inflicted injuries with a knife."
}
},
{
"from_name": "label",
"id": "4416a59d62b64dee8c5c41b0b7ea461a",
"to_name": "text",
"type": "labels",
"value": {
"end": 32956,
"labels": [
"ANALYSIS"
],
"start": 32878,
"text": "It is nobody's case that PW-1 has got confused a machete with that of a knife."
}
},
{
"from_name": "label",
"id": "38031ea97f2545a49b07991b7d63d9ed",
"to_name": "text",
"type": "labels",
"value": {
"end": 33097,
"labels": [
"ANALYSIS"
],
"start": 32957,
"text": "Though he is said to be a villager, still, the said villager like PW-1 can be taken as knowing the difference between a knife and a machete."
}
},
{
"from_name": "label",
"id": "38b1a24e56774ffd97b7941b4bfe5b90",
"to_name": "text",
"type": "labels",
"value": {
"end": 33244,
"labels": [
"ANALYSIS"
],
"start": 33098,
"text": "Therefore, with respect to alleged weapon used in the alleged commission of crime also, the prosecution could not able to place reliable evidence."
}
},
{
"from_name": "label",
"id": "2284d42dba584054af5cb58d5ae7fd63",
"to_name": "text",
"type": "labels",
"value": {
"end": 33509,
"labels": [
"ANALYSIS"
],
"start": 33244,
"text": "\n 31. In the light of the above, the evidence of PW-12 Secretary of Grama Panchayat, who has given the alleged revenue documents as per Ex.P-24 to show that the alleged place of offence stands in the name of PW-1, would take the case of the prosecution no further."
}
},
{
"from_name": "label",
"id": "ab812b5f929c42db91e6fde0f5383582",
"to_name": "text",
"type": "labels",
"value": {
"end": 34037,
"labels": [
"ANALYSIS"
],
"start": 33509,
"text": "\n Similarly, the evidence of PW-14 - Doctor who has stated that on 01-05-2008, in the afternoon at about 2 o'clock, he examined the injured Manjunatha, who was brought to him with the history of assault by the accused and noticed upon the injured, four injuries including a grievous injury in the form of complete amputation of the penis shaft at the base and exposure of both the testicles with incision of the scrotum measuring 4\"x2\", would not by itself go to prove that the said injuries inflicted are caused by the accused."
}
},
{
"from_name": "label",
"id": "04b137477f134998bd93ceb6f200fe4a",
"to_name": "text",
"type": "labels",
"value": {
"end": 34175,
"labels": [
"ANALYSIS"
],
"start": 34037,
"text": "\n 32. In the above circumstance, the evidence of the Investigating Officer (PW-11) would also take the case of the prosecution no further."
}
},
{
"from_name": "label",
"id": "a03a2d07d0b0435a9106a6539535574a",
"to_name": "text",
"type": "labels",
"value": {
"end": 34540,
"labels": [
"ANALYSIS"
],
"start": 34176,
"text": "His evidence that, he recorded the statements of the above said prosecution witnesses and also seized the incriminating materials including the weapon at MO-1 since have all been not at all established by corroborative evidence of any of other prosecution witnesses, the Investigating Officer's evidence alone would not make the case of the prosecution believable."
}
},
{
"from_name": "label",
"id": "820114b8fd4a4cc69ce10b7419f5300d",
"to_name": "text",
"type": "labels",
"value": {
"end": 35020,
"labels": [
"ANALYSIS"
],
"start": 34540,
"text": "\n 33. The motive alleged behind the crime, by the prosecution, is that, the accused No.1 had developed illicit relationship with accused No.2, as such, both the accused with their common intention to eliminate the complainant, had, on the alleged date and time of incident, inflicted injuries upon him and their attempt to kill him could not be succeeded, as such, the charge sheet was filed only for the offences punishable under Sections 342 and 307 read with Section 34 of IPC."
}
},
{
"from_name": "label",
"id": "14ad84e310b7469cbdaeb5be05cc9c42",
"to_name": "text",
"type": "labels",
"value": {
"end": 35280,
"labels": [
"ANALYSIS"
],
"start": 35021,
"text": "However, since none of the prosecution witnesses except PW-1 has supported the case of the prosecution on the said aspect and evidence of PW-1 also is proved to be not trustworthy, the alleged motive behind the alleged commission of the crime also fades away."
}
},
{
"from_name": "label",
"id": "5af4ac5865d348dc885e9469f69085f1",
"to_name": "text",
"type": "labels",
"value": {
"end": 35466,
"labels": [
"ANALYSIS"
],
"start": 35280,
"text": "\n 34. The defence of the accused is that in the village of the complainant, one Erappa Reddy had a coconut garden which was fenced with sharp edged iron rods and sharp edged zinc sheets."
}
},
{
"from_name": "label",
"id": "5c52aa6c604e4dfeb783b6c5fefc6636",
"to_name": "text",
"type": "labels",
"value": {
"end": 35593,
"labels": [
"ANALYSIS"
],
"start": 35467,
"text": "The complainant while attempting to pluck the coconuts from the said tree, had fallen on the fence and sustained the injuries."
}
},
{
"from_name": "label",
"id": "69016cb1a0ec48e7a308a859badbc38c",
"to_name": "text",
"type": "labels",
"value": {
"end": 35715,
"labels": [
"ANALYSIS"
],
"start": 35594,
"text": "The suggestion made to the said effect to the Doctor who was examined as PW-14 was not fully admitted by him as possible."
}
},
{
"from_name": "label",
"id": "dabd72a987d0494a8e90c9b507f824ba",
"to_name": "text",
"type": "labels",
"value": {
"end": 35901,
"labels": [
"ANALYSIS"
],
"start": 35716,
"text": "Though he admitted that the other injuries which were simple in nature, more particularly, injury No.2 could have been possible to be caused in that manner, but not the grievous injury."
}
},
{
"from_name": "label",
"id": "f718d747d13a490d8e0c160f8476fb0d",
"to_name": "text",
"type": "labels",
"value": {
"end": 36145,
"labels": [
"ANALYSIS"
],
"start": 35902,
"text": "However, PW-2 Kumari Shalini, the daughter of the complainant herself has stated in her examination-in-chief that, her father had sustained injury by falling from a coconut tree and it is in that regard, her father was admitted to a Hospital."
}
},
{
"from_name": "label",
"id": "5398c3f57885441184857aade0e9cd12",
"to_name": "text",
"type": "labels",
"value": {
"end": 36467,
"labels": [
"ANALYSIS"
],
"start": 36145,
"text": "\n Further, PW-4 - Lakshmana Reddy, the younger brother of the complainant in his cross-examination from the accused' side has stated that, one Sri. Erappa Reddy in their village has got a coconut tree and that in order to avoid the problem from the monkeys, he had put fencing around the trees with iron railings and rods."
}
},
{
"from_name": "label",
"id": "196d844b8d464e7fbea40ad9042e6d6a",
"to_name": "text",
"type": "labels",
"value": {
"end": 36751,
"labels": [
"ANALYSIS"
],
"start": 36467,
"text": "\n PW-7 - Ashwatha Reddy has stated that the said PW-4 - Lakshmana Reddy, for the injuries sustained by his brother and before shifting him to a Hospital, had told him that his brother (PW-1) had fallen from a tree and had sustained injuries, as such, he must be shifted to a Hospital."
}
},
{
"from_name": "label",
"id": "b5e1363882ce4e6ca933ad787bb83952",
"to_name": "text",
"type": "labels",
"value": {
"end": 36860,
"labels": [
"ANALYSIS"
],
"start": 36752,
"text": "It is only then, he joined said Lakshmana Reddy and shifted the injured in an auto rickshaw to the Hospital."
}
},
{
"from_name": "label",
"id": "f5c70ceaafd74f7caeccdf10740b49a4",
"to_name": "text",
"type": "labels",
"value": {
"end": 37210,
"labels": [
"ANALYSIS"
],
"start": 36861,
"text": "Thus, the evidence of these people who are none else than the Doctor, the younger brother and the person who shifted the injured to the Hospital would also go to show that, there was no whisper made to them about the commission of any criminal act or offences against the injured much less, by the accused resulting in injuries upon the complainant."
}
},
{
"from_name": "label",
"id": "ec831764183743f0bf714a55819ee0bb",
"to_name": "text",
"type": "labels",
"value": {
"end": 37294,
"labels": [
"ANALYSIS"
],
"start": 37211,
"text": "Thus, the defence taken by the accused further weakens the case of the prosecution."
}
},
{
"from_name": "label",
"id": "ccbbfb6fdfe34dfda9cf9e56a0f77e70",
"to_name": "text",
"type": "labels",
"value": {
"end": 37413,
"labels": [
"ANALYSIS"
],
"start": 37294,
"text": "\n 35. However the Trial Court did not appreciate the evidence of the prosecution witnesses in their proper perspective."
}
},
{
"from_name": "label",
"id": "f0026655d336443e843468869423d6d0",
"to_name": "text",
"type": "labels",
"value": {
"end": 37919,
"labels": [
"ANALYSIS"
],
"start": 37414,
"text": "On the other hand, merely because a trustworthy and reliable evidence of the sole injured witness can be believed and conviction can be pronounced, the Trial Court, in a hasty manner and without even assessing whether the evidence of PW-1/injured witness was trustworthy and reliable, proceeded to solely rely upon his evidence and pronounced the judgment of conviction holding the present appellant/accused No.1 as guilty of the offences punishable under Sections 342 and 326 read with Section 34 of IPC."
}
},
{
"from_name": "label",
"id": "052a303c3b38431d8940e9e077f3e87f",
"to_name": "text",
"type": "labels",
"value": {
"end": 38337,
"labels": [
"RATIO"
],
"start": 37920,
"text": "Since the above analysis now shows that the said appreciation of the evidence by the Trial Court is with error, the said judgment of conviction of the appellant/accused No.1 for the aforesaid alleged offences deserves to be set aside and the appellant/accused No.1 deserves to be acquitted of the alleged offences holding that the prosecution has failed to prove the alleged guilt against her beyond reasonable doubt."
}
},
{
"from_name": "label",
"id": "27439c13719e46c992c4dc61b3fb5304",
"to_name": "text",
"type": "labels",
"value": {
"end": 38722,
"labels": [
"RPC"
],
"start": 38337,
"text": "\n Accordingly, I proceed to pass the following: O R D E R [i] The appeal filed by appellant/accused No.1 is allowed; [ii] The judgment of conviction and order on sentence dated 21-01-2014 passed by the learned Principal District and Sessions Judge, Chikkaballapura, in Sessions Case No.111/2008, is set aside confining to the appellant here in; [iii] The appellant Mrs. Shivamma, W/o."
}
},
{
"from_name": "label",
"id": "e36271ae190f49998a07d2cf1aa6790c",
"to_name": "text",
"type": "labels",
"value": {
"end": 39415,
"labels": [
"RPC"
],
"start": 38723,
"text": "Mr. Manjunath, Aged about 37 years, Resident of Chimanahalli village, Chintamani Taluk 563 125, is acquitted of the offences punishable under Sections 342 and 326 read with Section 34 of IPC; [iv] In case the appellant/accused No.1 is in judicial custody, serving the sentence, the jail authorities are hereby directed to set her at liberty forthwith, unless she is required to be continued in the judicial custody in any other criminal case/s; [v] The fine amount deposited, if any, by the appellant/accused No.1 shall be released to her after the period of appeal and if no appeal is preferred; [vi] In view of disposal of the main appeal, I.A.No.1/2014 does not survive for consideration."
}
},
{
"from_name": "label",
"id": "4dcec02c2cb5429aa931aea264cd4902",
"to_name": "text",
"type": "labels",
"value": {
"end": 39524,
"labels": [
"RPC"
],
"start": 39415,
"text": "\n Registry to transmit a copy of this judgment along with Trial Court records to the Trial Court immediately."
}
},
{
"from_name": "label",
"id": "ec1d07efcce34c1b90ab39f8cdf6b092",
"to_name": "text",
"type": "labels",
"value": {
"end": 39595,
"labels": [
"RPC"
],
"start": 39524,
"text": "\n Registry to transmit today's order to the jail authorities forthwith."
}
},
{
"from_name": "label",
"id": "d0e04dff4525437abbeab1707c65c313",
"to_name": "text",
"type": "labels",
"value": {
"end": 39735,
"labels": [
"RPC"
],
"start": 39595,
"text": "\n The Court acknowledges the services rendered by Sri.P.D. Subrahmanya, learned panel advocate from the High Court Legal Services Committee."
}
},
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"id": "2ad7de2a71444cd0ab99abdf05a6b402",
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"end": 39911,
"labels": [
"RPC"
],
"start": 39736,
"text": "While acknowledging the assistance rendered by him in this case, the Court recommends to consider the remuneration payable to him to an amount not less than a sum of `5,000/-."
}
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"id": "c9ddcbe52a45458db9711755068efaaf",
"to_name": "text",
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"labels": [
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"start": 39911,
"text": "\n Sd/- JUDGE BMV*"
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] | 1,789 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\nDATED THIS THE 12TH DAY OF MARCH 2020\n\n BEFORE\n\nTHE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY\n\n CRIMINAL APPEAL No.116 OF 2014\n\nBETWEEN:\n\nMrs. Shivamma\nW/o.Mr. Manjunath\nAged 37 years\nResident of\nChimanahalli Village,\nChintamani Taluk\nPIN: 563 125.\n\n ...Appellant\n(By Mr. P.D. Subrahmanya, panel advocate of\nHigh Court Legal Services Committee)\n\nAND:\n\nState of Karnataka ...Respondent\nby Chintamani Rural Police\nChintamani Taluk\nThrough the State Public\nProsecutor, High Court Building\nDr. Ambedkar Veedhi,\nBangalore 560 001.\n\n(By Sri.Showri H.R., HCGP)\n\n ****\n This Criminal Appeal is filed under Section 374(2) of\nCr.P.C praying to set aside the judgment of conviction and\n\norder on sentence dated 21-01-2014 passed by the\nlearned Principal District and Sessions Judge,\nChikkaballapura, in Sessions Case No.111/2008, convicting\nthe appellant/accused No.1 for the offences punishable\nunder Sections 342 and 326 read with Section 34 of IPC\nand sentencing to undergo Rigorous Imprisonment for six\nmonths and to pay fine of `1,000/- and in default of\npayment of fine to undergo rigorous imprisonment for one\nmonth for the offence punishable under Section 342 of IPC\nand further sentenced to undergo rigorous imprisonment\nfor five years and to pay fine of `5,000/- in default of\npayment of fine to undergo rigorous imprisonment for one\nyear for the offence punishable under Section 326 of IPC.\n\n This Criminal Appeal coming on for Hearing, this day,\nthe Court delivered the following:\n\n J U D G M E N T\n The present appellant as accused No.1 was tried and later convicted by the learned Principal District and Sessions Judge at Chikkaballapura, (hereinafter referred to as `Trial Court' for brevity), in Sessions Case No.111/2008, by its judgment of conviction and order on sentence dated 21-01-2014, for the offences punishable under Sections 342 and 326 of the Indian Penal Code, 1860 (hereinafter referred to as `IPC' for brevity) and was sentenced accordingly. It is against the said judgment of conviction and order on sentence, the appellant/accused No.1 has preferred this appeal.\n 2. The summary of the case of the prosecution is that, accused No.1 is the wife of the complainant (PW-1) Manjunatha, and had developed illicit relationship with accused No.2. On 30-04-2008, in the evening at about 8 o'clock, when the complainant returned to his home, he found the presence of accused No.2 along with his wife (accused No.1) in his house. Though accused No.2 left the house, after arrival of complainant, but on the same night, which was on 01-05-2008 at 03:00 hours, once again accused No.2 went to the house of the complainant and got the door opened and when questioned by the complainant as to why he had come once again in that odd hour, the said accused No.2 joined by none else than the wife of the complainant closed the mouth of the complainant, dragged him to the cattle shed which was adjacent to their hut and after tying his hands and legs to a pole there, removed his nicker (half pant) and using a machete and a knife, amputated his penis shaft and also inflicted few more injuries on other parts of his body, thereby, attempted to cause his death. The complaint was lodged by the complainant himself, while under treatment in the Hospital which was registered in the respondent Station Crime No.81/2008 against both accused No.1 (present appellant) and accused No.2, for the offences punishable under Sections 342 and 307 read with Section 34 of IPC. After completing investigation, the respondent Police filed a charge sheet for the said offences. The charge was framed against the accused for the offences punishable under Sections 342 and 307 read with Section 34 of IPC.\n 3. Since the accused pleaded not guilty, in order to prove the charges leveled against the accused, the prosecution examined in all fourteen witnesses from PW-1 to PW-14 and got marked documents from Exhibits P-1 to P-33. Material Objects from MO-1 to MO-4 were marked from the prosecution side.\n Neither any witnesses were examined nor any documents were marked as exhibits from the side of the accused.\n 4. After hearing both side, the Trial Court by its impugned judgment dated 21-01-2014, acquitted the accused No.1 of the offence punishable under Section 307 read with Section 34 of IPC, however, convicted the appellant/accused No.1 for the offences punishable under Sections 326 and 342 read with Section 34 of IPC and sentenced her accordingly. It is against the said judgment of conviction and order on sentence, the accused No.1 has preferred this appeal.\n 5. The trial Court records were called for and the same are placed before this Court.\n 6. Since apart from the present appellant (accused No.1), accused No.2 has also been convicted under the same judgment passed by the Trial Court for the same offences, this Court, when specifically asked learned counsels from both side as to the filing of any appeal by accused No.2 against the impugned judgment of conviction, both the learned counsels pleaded that they have no information, as such, they submitted that no such appeal is pending.\nAccordingly, the matter was proceeded further.\n 7. The appellant/accused No.1 earlier was being represented by her counsel. However, when the matter was listed for final hearing, the said learned counsel for the appellant had remained absent.\nConsidering the fact that the appeal is of the year 2014 and causing further delay in disposing of the matter was not in the best interest of justice, this Court by its detailed order dated 04-03-2020 appointed learned counsel Mr. P.D. Subrahmanya, a panel advocate from the Legal Services Committee of this Court, to appear on behalf of the appellant and conduct the case of the appellant in this matter.\nAccordingly, the said learned counsel from the panel of Legal Services Committee of this Court is representing the appellant in the matter.\n 8. Heard arguments of the learned panel advocate from the Legal Services Committee of this Court for the appellant and the learned High Court Government Pleader for the respondent State.\n 9. Perused the material placed before this Court including the impugned judgment and also Trial Court records.\n 10. For the sake of convenience, the parties would be referred to as per their ranks before the Trial Court.\n 11. The points that arise for my consideration in this appeal are:- 1] Whether the prosecution has proved beyond reasonable doubt that on 01-05-2008 at about 03:00 hours, the appellant/accused No.1 joined by accused No.2 closed the mouth of the complainant, dragged him to the cattle shed which was adjacent to their hut and after tying his hands and legs to a pole there, removed his nicker and using a machete and a knife, amputated his penis shaft and also inflicted few more injuries on other parts of his body and thereby has committed the offences punishable under Sections 326 and 342 read with Section 34 of IPC?\n 2] Whether the judgment of conviction and order on sentence deserves any interference at the hands of this Court?\n 12. The undisputed facts from the evidence led by the prosecution is that, the accused No.1 - Smt. Shivamma who is the appellant herein is the wife of the complainant cum alleged victim (PW-1 Manjunatha). PW-2 - Kumari Shalini who is said to be a minor girl aged about 15 years as on the date of her evidence, is their daughter. PW-3 - Lakshmidevamma is the sister-in-law of the complainant and PW-4 - Lakshmana Reddy is the younger brother of the complainant. It is also not in dispute that on 01-05-2008, the complainant sustained injuries including amputation of his penis shaft.\n In the light of these undisputed facts, the case of the prosecution is that, those injuries sustained by the complainant on the said day including grievous injury of amputation of penis shaft were inflicted by none else than the accused including the present appellant as accused No.1. On the other hand, the defence of the accused No.1 is that the complainant had fallen from a coconut tree while plucking coconuts from the tree and had fallen on the fence which included sharp edged zinc sheets and sphere shaped iron rods which have caused the injuries upon him. It is on the said point of whether the injuries found on the complainant were by the act of a human being and if so, by whom, the entire evidence of the production witnesses is required to be analysed.\n 13. In order to prove the alleged incident of inflicting injuries upon the complainant as the one by none else than the accused No.1, the prosecution mainly relied upon two sets of witnesses. The first set of witnesses is the complainant, his family members and close relatives of the complainant and the second set of witnesses is the residents of the village who are the independent witnesses.\n 14. The first set of witnesses includes PW-1 Manjunatha who is said to be the complainant and victim in the case; his daughter PW-2 Kumari Shalini, his sister-in-law i.e. PW-3 -Lakshmidevamma.\n 15. Among the first set of witnesses, PW-1 the victim, in his evidence, has stated that, on the date of incident in the evening at about of 8 0' clock, when he returned home, he saw the accused No.2 near his house. Thereafter the said accused left the place, then he had his dinner. Afterwards what happened he did not know. However, on the next day, he regained conscious in the Hospital. His genital organ was cut and a cut injury was made on the lower bottom of his neck. The accused have thus cut by using a knife on that night. He stated that, it was the accused who have cut the same since he has actually seen it.\nAccused No.2 made the cut while accused No.1 was holding him. They have also inflicted injuries behind his left shoulder, head and below the neck. The people of the village admitted him to Hospital.\nAccused No.1 had poured water in the spot of the offence to wash out the blood. Then, he regained conscious and went to his sister-in-law and informed her the details. First, he was shifted to Hospital at Chintamani and from there, to Victoria Hospital at Bengaluru. Police have recorded his statement at Chintamani as per Ex.P-1. He also stated that he was assaulted and caused injuries on the lower part of the neck, head and cut his genital organ using knife and machete. The witness stated that he is seeing the knife at MO-1. Stating that he was wearing a white colour nicker on the said day, he has identified the same at MO-2. He has further stated that his hands and legs were tied with a plastic rope which he identifies at MO-3. Using the same rope, his mouth was also tied as well the ear. The Police have collected soil from the place of the incident and MO-4 is the blood stained mud. The witness stated that accused No.2 had illicit relationship with accused No.1.\nSince he had questioned that, they have committed this act. In his detailed cross-examination, several suggestions were made about the alleged improvements said to have been made by him in his evidence which were not there in his alleged complaint at Ex.P-1. He has stated that his house includes a hall and a kitchen and these people will be in the hall of the house. He lives with his two children in the said house.\n 16. PW-2 Kumari Shalini, the daughter of PW-1 as well accused No.1, in her examination-in- chief, except admitting her relationship with PW-1 and accused No.1, has pleaded her ignorance about the alleged incident. Though she stated that in three years, on one day, her father was admitted to a Government Hospital at Chintamani, but the reason for the same was that, he had fallen from a coconut tree sustaining injuries to his head and hands. Since according to prosecution, she being the daughter of the complainant, was aware of the alleged incident as well the alleged illicit relationship of her mother with accused No.2, she was permitted to be treated as hostile and the prosecution was permitted to cross- examine her. However, even in her cross- examination, the prosecution could not get any support from the said witness. The relevant portions of her alleged statement before the Investigating Officer were read over to the witness and confronted to her, but the witness denied that she had given those statements to the Investigating Officer. Those portions of her statement were marked as Exs-P-2, P-3, P-4 and P-5. In her cross-examination from the accused' side, she stated that on the previous night, when her father was admitted to the Hospital by Ashwatha Reddy, her uncle Lakshmana Reddy and Narayana Reddy, it was only herself, her mother and younger brother who were there in the house and her father was lifted from the coconut garden of Erappa Reddy and after changing his clothes, he was taken to the Hospital.\n 17. PW-3 Lakshmidevamma, the sister-in-law of PW-1 has pleaded her ignorance about the alleged incident. She has even stated that, she does not know about her husband Narayanaswamy and others shifting the complainant for treatment to the Hospital.\nShe also stated that she does not know as to whether Srinivasa Reddy and Lakshmana Reddy had advised accused No.1 about her alleged illicit relationship with accused No.2. According to prosecution, even this witness was also fully aware of the incident, since she was said to have been heard from none else than the injured himself and had given her statement accordingly before the Investigating Officer. Since her evidence was diametrically opposite to the same, she too was permitted to be treated as hostile and the prosecution was permitted to cross-examine her.\nHowever, the prosecution could not get any support from her also. The relevant portions of her alleged statement before the Investigating Officer were confronted to the witness and were marked at Ex.P-7, Ex.P-8, Ex.P-9, Ex.P-10 and Ex.P-11.\n 18. PW-4 Lakshmana Reddy, the younger brother of PW-1 also, according to the prosecution, had heard from none else than the injured complainant himself, but he did not support the case of the prosecution. He stated that though he is aware of his brother sustaining bleeding injuries, but he does not know about the alleged incident. When his brother had come near his house, he noticed injures upon his genital organ. Though he questioned as to how the same was caused, the injured did not say anything since he could not able to speak at that time. Then, he, joined by Ashwatha Reddy shifted the injured to the Government Hospital at Chintamani and after getting treatment for a day there, the injured was shifted to Victoria Hospital at Bengaluru where he was in-patient for fifteen days. He further stated that he has not given any statement before the Police and does not even know about the complainant giving complaint before the Police. He also pleaded his ignorance about the alleged illicit relationship between accused No.1 and accused No2. This witness also was treated as hostile. Still, the prosecution in its cross- examination of the witness, could not get any support from him. The portions of his alleged statement before the Investigating Officer were marked at Exs.P-12 and P-13. In his cross-examination from the accused' side, he stated that one Erappa Reddy has got a coconut garden in his village and in order to avoid the problems from the monkeys, he has put fencing of iron rods around the trees.\n 19. From the above evidence of the complainant himself and the other family members and close relatives of the complainant, what can be seen is that, except the complainant, none else have supported the case of the prosecution including the daughter of the complainant. According to complainant (PW-1), in his house, himself, his wife and two children are residing and they used to sleep in the hall portion of the house. Presuming the same were to be true then, had really the incident of accused No.2 coming to their house and the said accused joined by none else than accused No.1 who is the mother of PW-2 forcibly dragging the complainant to an adjacent cattle shed and assaulting him with knife or machete or both, inflicting grievous and multiple injuries upon him, had taken place then, it was naturally expected of the children of the complainant/injured and accused No.1, more particularly, the elder daughter Kumari Shalini, who was about ten years old as on the said date, getting disturbed and waking up and witnessing the incident. On the contrary, the said witness Shalini, in her evidence, apart from stating that no such alleged incident had taken place, has categorically and specifically stated that, on the night of the incident, her father i.e. PW-1 was not in their house. This, at the threshold, puts an obstacle to believe that, any such incident of anybody entering his house on that night and inflicting multiple injuries upon him as well about the involvement of the accused in the said Act.\n 20. Secondly, according to the prosecution, after the incident, the complainant some how getting himself released went to the house of his brother Narayanaswamy, where he met his sister-in-law - PW-3 - Lakshmidevamma as well his younger brother - Lakshmana Reddy and informed them about the incident. However as already observed above, the said younger brother Lakshmana Reddy (PW-4) though has stated that, he saw his brother (complainant) sustaining injuries to his genital organ, but it was at about 12 o'clock on 01-05-2008 in the afternoon and that despite he specifically asking the cause for the said injury, the injured brother was unable to speak, as such, he did not tell as to how the said injury had happened. In this way, the very close relative who is none else than the full blood brother of PW-1 has not supported the case of the prosecution.\nThe said brother went to the extent of even stating that he does not know about the alleged illicit relationship between accused No.1 and accused No.2.\n Similarly PW-3 Lakshmidevamma, the sister- in-law of the injured complainant also has pleaded her ignorance about the alleged incident. She has gone to the extent of telling that she does not even know about the injured sustaining injuries and he being shifted to the Hospital. In this manner, when the very family members involving the daughter, brother and sister-in-law have not supported the case of the prosecution, the sole evidence of PW-1 who claims himself to be the injured has to be analysed very carefully.\n 21. The second set of witnesses upon whom the prosecution relied upon to prove the alleged guilt against the accused are, PW-5 Reddappa, PW-6 Lakshmana Reddy, and PW-13 Srinivasa Reddy, who, according to the prosecution are the residents of the same village, who had earlier conducted a panchayat in connection with the alleged illicit relationship between accused No.1 and accused No.2 and had advised accused No.1 suitably. Further, on the date of incident and after the incident, while injured PW-1 (complainant) was said to have been going to the house of his brother with bleeding injuries on his body, it is these three witnesses who saw him on the way and heard from the mouth of none else than PW-1 about the incident and the alleged overt act of the accused in inflicting the injuries upon the injured. However, none of these three witnesses have supported the case of the prosecution. None of them have stated that they heard about the alleged incident from the complainant. Though PW-5 has stated that in connection with the alleged illicit relationship of accused No.1, a panchayat was held, wherein himself was also one of the panchas and had advised accused No.1 - Shivamma suitably, but he specifically stated that, on the date of the alleged incident, he was not in the village, as such, he does not know the details of the incident. He further stated that after his return, though he came to know that some incident had taken place, since to the doctor at Victoria Hospital at the time of admission of the injured, his telephone number was given by the complainant and the said Doctor had called him over phone, he had only told the Doctor to give suitable treatment to the injured and ensure his living. Despite the prosecution subjecting him to a detailed cross-examination after getting him treated as hostile, still, it could not get any support from him. The witness has even denied that he has given statement before the Investigating Officer as per Exs.P-14 and P-15. In his cross- examination from the accused' side attempts were made to show that, he being a former Chairman of the Mandal Panchayat and a Member in the Committee of the Temple in the village, had asked accused No.1 to vacate their house to enable the extension of the Temple and since she refused to vacate, a false complaint was lodged making use of the complainant who incidentally had sustained injury by falling down from a coconut tree. However, PW-5 did not admit those suggestions as true. Still, the fact remains that, even in his cross-examination, the prosecution could not get any support from the witness.\n 22. The case of PW-6 Lakshmana Reddy is in no way different from the case of PW-5. He was also projected by the prosecution keeping him on the same standing as that of PW-5 and projecting him also to be one of the panchas in the Panchayat and also as a person having heard about the details of the incident immediately after such incident from none else than the injured complainant himself. However, this witness also though stated that with respect to some dispute between the complainant and accused No.1, a panchayat was held, he stated that he has not heard anything from the injured personally. On the other hand, he stated that it was the younger brother of the complainant, i.e. Lakshmana Reddy who had told him about the incident stating that, his brother was assaulted and his genital organ was cut, as such, he was admitted to the Hospital. The said Lakshmana Reddy had also told him that it was accused No.1 who had committed the said act. The same thing he had told before the Police. Even if the said statement of PW-6 that he heard from the younger brother of injured complainant, i.e. Lakshmana Reddy is to be considered, still, it cannot be ignored of the fact that, the very Lakshmana Reddy (PW-4), the younger brother of the complainant, as observed above, has totally turned hostile and not at all supported the case of the prosecution. When that being the case, the said Lakshmana Reddy telling anything either about the incident or about the alleged role of accused No.1 to PW-6 is ruled out. Further, even in the cross- examination of PW-6, the prosecution could not get any support from him. The witness has denied that he had given the statement before the Investigating Officer as per Exs.P-16 and P-17.\n 23. PW-13 - Srinivas Reddy has categorically stated that he has neither seen the incident nor stated before the Police that he has seen the incident.\nOn the said date, after he returned to his home, he came to know that injured Manjunatha was admitted to the Hospital. However, he did not go and meet Manjunatha in the Hospital. Similarly the said Manjunatha also did not meet him and stated as to who assaulted him. Even after treating this witness also as hostile, and prosecution was permitted to cross-examine him as well, the prosecution could not get any support from him. The witness has even denied that he has given any statement before the Investigating Officer as per Exs.P-27, P-28, P-29, P-30 and P-31.\n 24. In this way, the second set of important witnesses, who, according to the prosecution were heard about the incident and the alleged role of the accused in such incident immediately after the alleged incident, that too, from none else than the injured complainant/PW-1 himself, also have not supported the case of the prosecution. In such a situation, when none of the family members and none of the independent material witnesses have supported the case of the prosecution, the appreciation of the evidence of PW-1 to ascertain whether this evidence is trustworthy and reliable requires more care and caution.\n 25. As observed above, PW-1 the victim by a prima facie reading of his evidence appears to have supported the case of the prosecution by telling that it was the accused who had inflicted injuries upon him on the alleged date. However, a careful reading of his evidence would go to show that the witness has stated that after he returned to his house on the date of incident, in the evening, he had his dinner. Thereafter, he does not know what they did. He regained conscious only in the Hospital on the next day morning. The genital organ was cut and lower portion of his neck was also cut. If that were to be the case, then after his dinner, if he was not aware as to what was made to him, then, how come he say that it was the accused who had done it.\n Secondly, though he (PW-1) has stated that it was the accused who have caused such an act since he has seen it from his own eyes, but, as already observed above, the very same witness has stated that, it is not known as to who had done it. Further, he has also stated that he regained conscious only in the Hospital on the next day morning. However, in the very same evidence at a later stage, he has stated that when accused No.1 poured water to wash out the blood, he gained conscious. Thus, even with respect to his alleged regaining consciousness also, the witness is not sure whether it was in his house only or was it at the Hospital on the next day morning.\n Thirdly, if his statement that he regained conscious only on the next day morning in the Hospital is accepted and believed, then, the contention of the prosecution that PW-5, PW-6 and PW-13 were the three witnesses who heard about the incident from the mouth of injured complainant himself immediately after the incident and that they had seen the injured victim with bleeding injuries, becomes false by itself. As such, the evidence of those three witnesses, i.e.PW-5, PW-6 and PW-13 that they did not see the injured complainant immediately after the alleged incident becomes more nearer to the truth and believable than the contention of the prosecution that they had seen the injured on that day.\n Fourthly, the very same injured witness who has identified the complaint at Ex.P-1 has stated in his complaint at Ex.P-1 that while accused No.2 was holding him firmly, it was accused No.1 - wife who cut the genital organ with a machete (chopper machhu), however, in his evidence he has put it in the reverse order that it was accused No.1 his wife who was holding him firmly and it was accused No.2 who inflicted injuries upon him by cutting his genital organ.\nFurther, in the complaint he has stated that, the weapon used was a machete whereas in his evidence, he has called the same as a knife. The said contradiction was brought in his cross-examination as well in the cross-examination of the Investigating Officer from the accused side.\n Fifthly, in his evidence, PW-1 has stated that he does not know who inflicted injuries upon him and he regained conscious on the next day morning in the Hospital. Later, he said that he himself has seen the occurrence of the incident from his own eyes.\nHowever, the said statement that he has seen the incident by himself in his own eyes has not been stated by him in his complaint which was also elicited as an improvement in the cross-examination of this witness as well of Investigation Officer from the accused' side.\n Similarly, the evidence of PW-1 that accused No.1 washing the blood stains from the spot and due to which, he regained conscious and also using plastic rope his legs, hands, mouth and ears were all tied by the accused were all shown to be an improvement made by this witness for the first time in his evidence.\n The said witness (PW-1) has further stated that apart from admitting a suggestion that he always meets the Police and attends to their personal work, has volunteered to say that, he travels with them in their motor cycle and challenges the people in the village. He also stated that, he also works as an agent in securing the Caste Certificates. Further, the witness has also stated that, he helps the Police by signing several mahazars as a panch, as such, the Police attends his personal work neatly. The witness himself volunteered to say that even if he gets a stomach pain, it will be the Police who would admit him to the Hospital. In this way, the witness apart from showing that there are lot of contradictions and improvements in his evidence, has himself shown that, he is getting lot of favours from the complainant Police since he attends to their personal and various other works. In such a circumstance, the sole evidence of PW-1 injured which lacks reliability upon it and appears to be not safe to rely upon, cannot be made the sole basis for convicting the accused No.1 for the alleged offences.\n 26. The remaining witnesses examined by the prosecution, though are not material witnesses, still, they too have not supported the case of the prosecution to take the case of the prosecution any further.\n 27. PW-7 - Ashwatha Reddy, according to the prosecution, was the one who had seen the injured complainant and after hearing from his mouth about the alleged incident, had shifted him to the Government Hospital at Chintamani. However, the said witness though has stated in his evidence that he got admitted the injured to the Government Hospital at Chintamani, but stated that the younger brother of the injured had told him that the injured had fallen from a tree as such, he was required to be taken to the Hospital. Thus, he, joined by said Lakshmana Reddy, the younger brother of the injured shifted the injured complainant to the Hospital. He categorically stated that nobody told him that the injured was assaulted by any one, much less, the accused No.1. This witness also was treated as hostile and prosecution was permitted to cross- examine him. However, the prosecution could not get any support from this witness. His alleged statements before the Investigating Officer were confronted to the witness and marked at Exs.P-18 and P-19. In this manner, PW-7 also has not supported the case of the prosecution.\n 28. PW-8 - Narayanaswamy who is the brother- in- law of the injured complainant has stated that his another brother-in-law, i.e. Lakshmana Reddy (PW-4) informed him about the incident over phone, as such, he went to the Government Hospital at Chintamani and thereafter on the advise of the Doctor, the injured was shifted to Bengaluru, however, in order to make financial arrangement for medical expenses, he came back to his village. The witness has specifically stated that he did not enquire with the injured about the incident since he was not in a condition to speak. On the other hand, he stated that the injured and his wife were happy and he does not know about the alleged panchayat said to have been held in the village of the complainant wherein the accused No.1 was said to have been advised. Even this witness also was treated as hostile and prosecution was permitted to cross-examine him. However, it could not get any support from the witness. The confronted portions of his alleged statement before the Investigating Officer were marked at Exs.P-20 and P-21.\n 29. PW-9 Bachi Reddy and PW-10 Anjaneya Reddy were examined by the prosecution, projecting them as the panch witnesses for mahazar for the alleged scene of offence cum seizure mahazar at Ex.P-6. Both these witnesses have clearly stated that the Police have obtained their signatures upon a pre- prepared document and without knowing as to what that document was, they have singed to the said document since the Police had asked them to sign it.\nIn this way, the prosecution could not get any support from the mahazar witnesses also. As such, the evidence of the Investigating Officer (PW-11) that on 01-05-2008, he drew a scene of offence panchanama as per Ex.P-6 and from the spot of the offence, he also seized the material objects which are marked at MO-1 to MO-4 have remained un-corroborated by the evidence of these two witnesses. Hence, the alleged scene of offence as well the alleged seizure of the Material Objects at MO-1 to MO-4 also stands not proved by the prosecution.\n 30. At this stage, one more discrepancy that can be noticed in the case of the prosecution is that, according to the Investigating Officer, the weapon seized from the spot under alleged panchanama at Ex.P-6 was a machete (chopper/machchu) which is marked at MO-1. However, as already observed above, PW-1 the injured in his evidence has stated that he was inflicted injuries with a knife. It is nobody's case that PW-1 has got confused a machete with that of a knife. Though he is said to be a villager, still, the said villager like PW-1 can be taken as knowing the difference between a knife and a machete. Therefore, with respect to alleged weapon used in the alleged commission of crime also, the prosecution could not able to place reliable evidence.\n 31. In the light of the above, the evidence of PW-12 Secretary of Grama Panchayat, who has given the alleged revenue documents as per Ex.P-24 to show that the alleged place of offence stands in the name of PW-1, would take the case of the prosecution no further.\n Similarly, the evidence of PW-14 - Doctor who has stated that on 01-05-2008, in the afternoon at about 2 o'clock, he examined the injured Manjunatha, who was brought to him with the history of assault by the accused and noticed upon the injured, four injuries including a grievous injury in the form of complete amputation of the penis shaft at the base and exposure of both the testicles with incision of the scrotum measuring 4\"x2\", would not by itself go to prove that the said injuries inflicted are caused by the accused.\n 32. In the above circumstance, the evidence of the Investigating Officer (PW-11) would also take the case of the prosecution no further. His evidence that, he recorded the statements of the above said prosecution witnesses and also seized the incriminating materials including the weapon at MO-1 since have all been not at all established by corroborative evidence of any of other prosecution witnesses, the Investigating Officer's evidence alone would not make the case of the prosecution believable.\n 33. The motive alleged behind the crime, by the prosecution, is that, the accused No.1 had developed illicit relationship with accused No.2, as such, both the accused with their common intention to eliminate the complainant, had, on the alleged date and time of incident, inflicted injuries upon him and their attempt to kill him could not be succeeded, as such, the charge sheet was filed only for the offences punishable under Sections 342 and 307 read with Section 34 of IPC. However, since none of the prosecution witnesses except PW-1 has supported the case of the prosecution on the said aspect and evidence of PW-1 also is proved to be not trustworthy, the alleged motive behind the alleged commission of the crime also fades away.\n 34. The defence of the accused is that in the village of the complainant, one Erappa Reddy had a coconut garden which was fenced with sharp edged iron rods and sharp edged zinc sheets. The complainant while attempting to pluck the coconuts from the said tree, had fallen on the fence and sustained the injuries. The suggestion made to the said effect to the Doctor who was examined as PW-14 was not fully admitted by him as possible. Though he admitted that the other injuries which were simple in nature, more particularly, injury No.2 could have been possible to be caused in that manner, but not the grievous injury. However, PW-2 Kumari Shalini, the daughter of the complainant herself has stated in her examination-in-chief that, her father had sustained injury by falling from a coconut tree and it is in that regard, her father was admitted to a Hospital.\n Further, PW-4 - Lakshmana Reddy, the younger brother of the complainant in his cross-examination from the accused' side has stated that, one Sri. Erappa Reddy in their village has got a coconut tree and that in order to avoid the problem from the monkeys, he had put fencing around the trees with iron railings and rods.\n PW-7 - Ashwatha Reddy has stated that the said PW-4 - Lakshmana Reddy, for the injuries sustained by his brother and before shifting him to a Hospital, had told him that his brother (PW-1) had fallen from a tree and had sustained injuries, as such, he must be shifted to a Hospital. It is only then, he joined said Lakshmana Reddy and shifted the injured in an auto rickshaw to the Hospital. Thus, the evidence of these people who are none else than the Doctor, the younger brother and the person who shifted the injured to the Hospital would also go to show that, there was no whisper made to them about the commission of any criminal act or offences against the injured much less, by the accused resulting in injuries upon the complainant. Thus, the defence taken by the accused further weakens the case of the prosecution.\n 35. However the Trial Court did not appreciate the evidence of the prosecution witnesses in their proper perspective. On the other hand, merely because a trustworthy and reliable evidence of the sole injured witness can be believed and conviction can be pronounced, the Trial Court, in a hasty manner and without even assessing whether the evidence of PW-1/injured witness was trustworthy and reliable, proceeded to solely rely upon his evidence and pronounced the judgment of conviction holding the present appellant/accused No.1 as guilty of the offences punishable under Sections 342 and 326 read with Section 34 of IPC. Since the above analysis now shows that the said appreciation of the evidence by the Trial Court is with error, the said judgment of conviction of the appellant/accused No.1 for the aforesaid alleged offences deserves to be set aside and the appellant/accused No.1 deserves to be acquitted of the alleged offences holding that the prosecution has failed to prove the alleged guilt against her beyond reasonable doubt.\n Accordingly, I proceed to pass the following: O R D E R [i] The appeal filed by appellant/accused No.1 is allowed; [ii] The judgment of conviction and order on sentence dated 21-01-2014 passed by the learned Principal District and Sessions Judge, Chikkaballapura, in Sessions Case No.111/2008, is set aside confining to the appellant here in; [iii] The appellant Mrs. Shivamma, W/o. Mr. Manjunath, Aged about 37 years, Resident of Chimanahalli village, Chintamani Taluk 563 125, is acquitted of the offences punishable under Sections 342 and 326 read with Section 34 of IPC; [iv] In case the appellant/accused No.1 is in judicial custody, serving the sentence, the jail authorities are hereby directed to set her at liberty forthwith, unless she is required to be continued in the judicial custody in any other criminal case/s; [v] The fine amount deposited, if any, by the appellant/accused No.1 shall be released to her after the period of appeal and if no appeal is preferred; [vi] In view of disposal of the main appeal, I.A.No.1/2014 does not survive for consideration.\n Registry to transmit a copy of this judgment along with Trial Court records to the Trial Court immediately.\n Registry to transmit today's order to the jail authorities forthwith.\n The Court acknowledges the services rendered by Sri.P.D. Subrahmanya, learned panel advocate from the High Court Legal Services Committee. While acknowledging the assistance rendered by him in this case, the Court recommends to consider the remuneration payable to him to an amount not less than a sum of `5,000/-.\n Sd/- JUDGE BMV* "
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"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n DATED THIS THE 9th DAY OF FEBRUARY, 2018"
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"text": "\n\n PRESENT\n\n THE HON'BLE MR.JUSTICE RAVI MALIMATH\n AND"
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"text": "\n\nTHE HON'BLE DR.JUSTICE H. B. PRABHAKARA SASTRY\n CRIMINAL APPEAL No.936 OF 2012\n\n C/w. CRIMINAL APPEAL No.1147 OF 2012"
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"text": "\n\nIn Crl.A.936 of 2012"
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"text": " ...Appellant"
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"text": "\n ...Respondent\nBETWEEN:\nJithendra @ Jithu\nS/o. Shekar,\nAged about 20 years,\nR/at No.168, Behind\nMuneshwara Temple,\nNGR Layout, Roopena Agrahara,\nBengaluru-560 068.\n\n(By Sri. Hashmath Pasha, Advocate)\n\nAND:\n\nState of Karnataka,\nBy Madiwala Police Station,\nBengaluru City-560 058.\n(Represented by Learned\nState Public Prosecutor)\n\n(By Sri. P.M. Nawaz, SPP-I)"
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"text": "\n\n\n - 2 -"
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"end": 1189,
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"start": 854,
"text": "This Criminal Appeal is filed under Section 374(2) of\nCr.P.C praying to set aside the judgment and order of\nconviction dated 07.07.2012 and sentence dated\n09.07.2012 passed by the P.O., FTC-XVII, Bangalore City in\nS.C.No.181 of 2011 convicting the appellant/accused for\nthe offence punishable under Section 302 r/w Section 149\nof IPC."
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"start": 1190,
"text": "The appellant/accused is sentenced to undergo life\nimprisonment and to pay fine of Rs.2,500/- and in default\nof fine, he shall undergo S.I. for a period of 6 months for\nthe offence punishable under Section 302 r/w Section 149\nof IPC."
}
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"text": "\n\nIn Crl.A.1147 of 2012 ..Appellant\n\nBETWEEN:\n\nSathish Babu @ Ayyappa\n(real name is Harish V.)\nS/o. Venkatamuni,\nAged about 21 years,\nR/at 7th Cross, Opp:Mosque,\nKaverinagar,\nKodichikkanahalli Road,\nHongasandra,\nBangalore.\n\n(By Sri. Hashmath Pasha, Advocate)\n\nAND\n\nState of Karnataka\nBy Madiwala Police Station,\nBengaluru City 560 068.\n\n(represented by Learned ..Respondent\nState Public Prosecutor)\n\n(By Sri. P.M. Nawaz, SPP-I)\n\n This Criminal Appeal is filed under Section 374(2) of\nCr.P.C praying to set aside the judgment and order of\n\n- 3 -\n\nconviction dated 07.07.2012 and sentence dated\n09.07.2012 passed by the P.O., FTC-XVII, Bangalore City in\nS.C.No.181 of 2011 convicting the appellant/accused\nNo.1 for the offence punishable under Section 302 r/w\nSection 149 of IPC."
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"text": "The appellant/accused No.1 is\nsentenced to undergo life imprisonment and to pay fine of\nRs.2,500/- and in default of fine, he shall undergo S.I. for\na period of 6 months for the offence punishable under\nSection 302 r/w Section 149 of IPC."
}
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"text": "\n\n These Criminal Appeals having been Heard and\nReserved for Judgment on 16.01.2018 and pronounced this\nday the Dr. H.B.PRABHAKARA SASTRY, J., delivered the\nfollowing:-\n\n JUDGMENT"
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"labels": [
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"text": "Being aggrieved by the judgment of conviction and order on sentence passed by the Presiding Officer, Fast Track Court-XVII, Bengaluru, (hence forth for brevity referred to as the `Sessions Court') in S.C. No.181 of 2011, dated 07.07.2012, convicting them for an offence punishable under Section 302 read with Section 149 of Indian Penal Code and sentencing them to undergo life imprisonment and to pay a fine of Rs.2,500/- each and in default of payment of fine, to undergo simple imprisonment for a period of six months, the accused Nos.1 and 2/appellants have filed these appeals.\n - 4 - 2. In their memorandum of appeals, the appellants have taken the contention that accused Nos.4, 5 and 7 have been acquitted in the matter and that there is no finding that accused Nos.1 and 2 had formed an unlawful assembly with other accused or any other person."
}
},
{
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"end": 3702,
"labels": [
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"start": 3552,
"text": "\nTherefore, the conviction of accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 149 of Indian Penal Code, is illegal."
}
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],
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"text": "The case of the prosecution is based on the part testimony of PWs-1, 4 and 10."
}
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"id": "6990c9e7f45b464e9e069af492c48eba",
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"text": "\nHowever, their evidence lost any consistency, as such, they are not trustworthy."
}
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"value": {
"end": 3962,
"labels": [
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],
"start": 3863,
"text": "The narration of the incident as given by the prosecution witnesses does not tally with each other."
}
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"text": "\nNo Test Identification Parade was conducted to fix the identity of the appellants."
}
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"end": 4197,
"labels": [
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],
"start": 4046,
"text": "With these, the appellants have prayed for allowing the appeals, by setting aside the judgment of conviction and order on sentence passed against them."
}
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"end": 4277,
"labels": [
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],
"start": 4197,
"text": "\n 3. The respondent is being represented by State Public Prosecutor-I.\n - 5 - 4."
}
},
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"end": 4348,
"labels": [
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],
"start": 4278,
"text": "Lower Court records were called for and the same are placed before us."
}
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"text": "\n 5. Since both these appeals have arisen out of a single judgment passed by the Sessions Court, both these appeals are taken as connected appeals and heard together.\n 6."
}
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"labels": [
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"start": 4519,
"text": "Perused the material placed before us, including the memorandum of appeals, impugned judgment and the lower Court records."
}
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],
"start": 4641,
"text": "\n 7. The summary of the case of the prosecution is that on 26.9.2010, in the evening hours, in an orchestra arranged in connection with Ganesha festival, accused No.1-Ayyappa was doing some galata with some other persons."
}
},
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"value": {
"end": 4990,
"labels": [
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],
"start": 4863,
"text": "At that juncture, deceased-Dinesh intervened and pacified their quarrel and also gave a slap on accused No.1 and sent him back."
}
},
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"id": "61712e5d01d24a79b98eacef4b539f47",
"to_name": "text",
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"value": {
"end": 5543,
"labels": [
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],
"start": 4991,
"text": "Due to this developing ill-will and rivalry, the accused No.1, joined by other accused, with an intention to take revenge against the deceased Dinesh, on 27.9.2010, at about 7.45 p.m., went in a group to the place - 6 - at 6th Main, 7th Cross, Hongasandra, Balaji Layout, where the deceased Dinesh, joined by his friends, was removing the shed (pandal) and picked up quarrel with him and further assaulted and stabbed the deceased Dinesh with deadly weapon like knife on his chest and other parts of the body and thereby caused his death intentionally."
}
},
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"id": "c55142d5518544eaa75251d5d467573e",
"to_name": "text",
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"value": {
"end": 5674,
"labels": [
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],
"start": 5544,
"text": "Charge sheet was filed against the accused for the offence punishable under Section 302 read with Section 34 of Indian Penal Code."
}
},
{
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"id": "9aabdc21f56c487b868e4950536b0fe4",
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"value": {
"end": 5838,
"labels": [
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],
"start": 5675,
"text": "The Sessions Court framed the charges against accused Nos.1, 2, 4, 5 and 7 for the offence punishable under Section 302 read with Section 149 of Indian Penal Code."
}
},
{
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"id": "6c4f433a4279433c813254fd6eca42b6",
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"value": {
"end": 5927,
"labels": [
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],
"start": 5839,
"text": "Accused No.3 was stated to be dead and case against accused Nos.6, 8 and 9 was split up."
}
},
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"id": "c1a961f4996c4482be095c5323f5ac2f",
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"end": 6317,
"labels": [
"RLC"
],
"start": 5928,
"text": "The Sessions Court by its judgment of conviction and order on sentence dated 9.7.2012, convicted accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 149 of Indian Penal Code and sentenced them to undergo life imprisonment and also to pay a fine of Rs.2,500/- each, and in default of payment of fine, to undergo simple imprisonment for a period of six months."
}
},
{
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"id": "7aa5f5dad45f4c51b446954925a10133",
"to_name": "text",
"type": "labels",
"value": {
"end": 6388,
"labels": [
"FAC"
],
"start": 6317,
"text": "\n Accused Nos.4, 5 and 7 were acquitted for the alleged - 7 - offences."
}
},
{
"from_name": "label",
"id": "4a9367d11fcb4df28c421afcea262977",
"to_name": "text",
"type": "labels",
"value": {
"end": 6507,
"labels": [
"FAC"
],
"start": 6389,
"text": "It is against the said judgment of conviction and order on sentence, accused Nos.1 and 2 have preferred these appeals."
}
},
{
"from_name": "label",
"id": "f67586256d544fd8906d075376d4a899",
"to_name": "text",
"type": "labels",
"value": {
"end": 6683,
"labels": [
"FAC"
],
"start": 6509,
"text": "8. The appellants have not disputed that the death of deceased Dinesh was a homicidal death and that he died on 27.9.2010 at 7.45 p.m. due to the injuries inflicted upon him."
}
},
{
"from_name": "label",
"id": "55d641d391b04f6e8803be3ba8056d5a",
"to_name": "text",
"type": "labels",
"value": {
"end": 6818,
"labels": [
"FAC"
],
"start": 6684,
"text": "The said aspect can be further confirmed by the evidence of the Medical Officer i.e., PW-11, coupled with evidence of PWs-1, 4 and 10."
}
},
{
"from_name": "label",
"id": "e428906f5d5145219708e11f2a24815e",
"to_name": "text",
"type": "labels",
"value": {
"end": 6981,
"labels": [
"FAC"
],
"start": 6819,
"text": "Besides the evidence of these witnesses, the Inquest mahazar at Ex.P-3 also shows that the panchas too have opined that the death of the deceased was a homicidal."
}
},
{
"from_name": "label",
"id": "ce18f5a6aef24ce89152cb9cf5467e5c",
"to_name": "text",
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"value": {
"end": 6991,
"labels": [
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],
"start": 6981,
"text": "\n 9. PW-11"
}
},
{
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"id": "be3bcfe5f44347319c968000a4b403a5",
"to_name": "text",
"type": "labels",
"value": {
"end": 7149,
"labels": [
"FAC"
],
"start": 6992,
"text": " Dr.Dilip Kumar, in his evidence has stated that he has conducted the autopsy over the dead body of Dinesh at the request of complainant police on 28.9.2010."
}
},
{
"from_name": "label",
"id": "72b55f460c084adc905340e7011f4488",
"to_name": "text",
"type": "labels",
"value": {
"end": 7382,
"labels": [
"FAC"
],
"start": 7150,
"text": "He noticed the following injuries on the deceased : 1. Incised wound meag. 5 cms x 0.5 cms x subcutaneous deep obliquely placed present over the outer aspect of upper - 8 - part of left arm situated, 5 cms below the tip of shoulder."
}
},
{
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"id": "ba5067bc3675474692d9ffb2cacacebc",
"to_name": "text",
"type": "labels",
"value": {
"end": 7594,
"labels": [
"FAC"
],
"start": 7382,
"text": "\n 2. Stab wound 1.5 cms x 0.5 cms x underneath tissue deep, obliquely placed over centre of chest situated 16 cms below the stemal notch, Margins are clean cut, Upper outer end is blunt, inner lower end is sharp."
}
},
{
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"id": "1b59153d6b394ea5954c3854f07f83a6",
"to_name": "text",
"type": "labels",
"value": {
"end": 7689,
"labels": [
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],
"start": 7595,
"text": "The wound shows tearing from inner lower end for a length of 5 cms towards left side of chest."
}
},
{
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"id": "a744aa0a68184057bf5178610206f51d",
"to_name": "text",
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"value": {
"end": 7848,
"labels": [
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],
"start": 7690,
"text": "On further dissection it is observed that weapon after cutting skin, subcutaneous tissue underlying muscle and slit the underlying bone, stemum at its middle."
}
},
{
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"id": "9c108de379a24d7e891619d2ae7e1927",
"to_name": "text",
"type": "labels",
"value": {
"end": 7961,
"labels": [
"FAC"
],
"start": 7849,
"text": "The wound is directed backward, downward and outward towards right, for a depth of 6 cms, blood effused around."
}
},
{
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"id": "47ebd93e56624d00a490d39424e83261",
"to_name": "text",
"type": "labels",
"value": {
"end": 8163,
"labels": [
"FAC"
],
"start": 7961,
"text": "\n 3. Stab wound 2 cms x 0.5 cms x underneath tissue deep vertically placed present on the left side of chest at mid clavicular line situated 18 cms below the mid clavicle.\n Margins are clean cut."
}
},
{
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"id": "743979db313e4f85bea09c24368d8a1e",
"to_name": "text",
"type": "labels",
"value": {
"end": 8183,
"labels": [
"FAC"
],
"start": 8164,
"text": "Lower end is sharp."
}
},
{
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"id": "6f8cb23bffb14f988d1de8da3ef57b89",
"to_name": "text",
"type": "labels",
"value": {
"end": 8211,
"labels": [
"FAC"
],
"start": 8183,
"text": "\n Upper end is blunt."
}
},
{
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"id": "8f28c1d7d2744f7b983b55e8dcc3bd79",
"to_name": "text",
"type": "labels",
"value": {
"end": 8444,
"labels": [
"FAC"
],
"start": 8212,
"text": "On further dissection, it is observed that weapon after cutting the skin, subcutaneous tissue underlying muscles, has pierced between 6th and 7th - 9 - ribs, pericardium and cut the left ventricle on its surface for whole thickness."
}
},
{
"from_name": "label",
"id": "3c19f6e165a34d859d386b09ec729356",
"to_name": "text",
"type": "labels",
"value": {
"end": 8540,
"labels": [
"FAC"
],
"start": 8445,
"text": "The wound is directed upwards, backward and inward for a depth of 10 cms, Blood effused around."
}
},
{
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"id": "f436c87e756949579fc3f44c47751486",
"to_name": "text",
"type": "labels",
"value": {
"end": 8662,
"labels": [
"FAC"
],
"start": 8542,
"text": "4. Stab wound 1.5 cms x 0.5 cms x muscle deep, Vertically placed, present over the front and lower abdomen on left side."
}
},
{
"from_name": "label",
"id": "258bb55010654ae6b47c7d2febe80470",
"to_name": "text",
"type": "labels",
"value": {
"end": 8737,
"labels": [
"FAC"
],
"start": 8671,
"text": "Situated 16 cms away from umbilicus 6 cms below the costal margin."
}
},
{
"from_name": "label",
"id": "f79d9f8ea3c448b48eb6529d32f0b406",
"to_name": "text",
"type": "labels",
"value": {
"end": 8800,
"labels": [
"FAC"
],
"start": 8738,
"text": "Margins are clean cut, upper end is sharp, lower end is blunt."
}
},
{
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"id": "99a8680867bc4456b1324aa91886a7e2",
"to_name": "text",
"type": "labels",
"value": {
"end": 8867,
"labels": [
"FAC"
],
"start": 8801,
"text": "The wound is directed upward backward inward for a depth of 6 cms."
}
},
{
"from_name": "label",
"id": "f2143d3ab7da4948983bb04ab6ff491f",
"to_name": "text",
"type": "labels",
"value": {
"end": 8889,
"labels": [
"FAC"
],
"start": 8868,
"text": "Blood effused around."
}
},
{
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"id": "e1a37f5657b94fce8e0d513f4b322834",
"to_name": "text",
"type": "labels",
"value": {
"end": 8997,
"labels": [
"FAC"
],
"start": 8891,
"text": "10. The said witness has also identified the Post Mortem Report said to have been issued by him at Ex.P-4."
}
},
{
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"id": "ae43dd1f7a8d4b7cb623cde153733489",
"to_name": "text",
"type": "labels",
"value": {
"end": 9132,
"labels": [
"FAC"
],
"start": 8997,
"text": "\nHe has also opined that the death of the deceased was due to shock and hemorrhage as a result of stab injuries sustained on the chest."
}
},
{
"from_name": "label",
"id": "f3b08f4cdd8b404eb431f64128a84769",
"to_name": "text",
"type": "labels",
"value": {
"end": 9229,
"labels": [
"FAC"
],
"start": 9133,
"text": "He has further stated that death of the deceased could be caused by the use of weapon like MO.1."
}
},
{
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"id": "303e0e55a7aa4cac93a91c6691f56a9f",
"to_name": "text",
"type": "labels",
"value": {
"end": 9277,
"labels": [
"FAC"
],
"start": 9230,
"text": "He has withstood the test of cross-examination."
}
},
{
"from_name": "label",
"id": "87b297c82eca4fce86c37537531701e3",
"to_name": "text",
"type": "labels",
"value": {
"end": 9604,
"labels": [
"FAC"
],
"start": 9277,
"text": "\nThus, the evidence of the doctor who conducted the autopsy and his report at Ex.P-4 and the Inquest - 10 - panchanama at Ex.P-3, coupled with the evidence of PWs-1, 4 and 10, who have stated that the deceased was assaulted and stabbed to death, clearly establishea that the death of Dinesh on the date 27.9.2010 was homicidal."
}
},
{
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"id": "e7163bab57fb41028a740aecbc5ea666",
"to_name": "text",
"type": "labels",
"value": {
"end": 9861,
"labels": [
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],
"start": 9606,
"text": "11. The next question would be as to whether the prosecution has proved beyond reasonable doubt that it is the present appellants/accused Nos.1 and 2 being the members of an unlawful assembly have committed the said murder of deceased-Dinesh on 27.9.2010?"
}
},
{
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"id": "f5d7a3615c9c4311a219b36bf6896ed1",
"to_name": "text",
"type": "labels",
"value": {
"end": 10022,
"labels": [
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],
"start": 9862,
"text": "In that regard, the entire case of the prosecution is mainly based upon the evidence of PWs-1, 4 and 10, who are stated to be the eye witnesses to the incident."
}
},
{
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"id": "2207454fe17a4080b4cbd0c3f555510e",
"to_name": "text",
"type": "labels",
"value": {
"end": 10149,
"labels": [
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],
"start": 10023,
"text": "However, in order to prove the other circumstances pertaining to the case, the prosecution in total has examined 17 witnesses."
}
},
{
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"id": "018be905029a484093b75f2b445680d3",
"to_name": "text",
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"value": {
"end": 10384,
"labels": [
"ANALYSIS"
],
"start": 10149,
"text": "\n 12. PW-1 Shravana Kumar, who is undisputedly the brother of the deceased-Dinesh and also the complainant in this case, has in his evidence stated that on the date 26.9.2010, there was an orchestra on the occasion of Ganesha festival."
}
},
{
"from_name": "label",
"id": "cd0670bffc7b4a35bc0b939b925f7d97",
"to_name": "text",
"type": "labels",
"value": {
"end": 10537,
"labels": [
"FAC"
],
"start": 10385,
"text": "At that point of time, at about 9.30 p.m., - 11 - accused No.1 Ayyappa was found in that place, creating some disturbances (making galata with others)."
}
},
{
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"id": "78e7ffcc97b6423e838340f76d0223e3",
"to_name": "text",
"type": "labels",
"value": {
"end": 10665,
"labels": [
"ANALYSIS"
],
"start": 10538,
"text": "The same was objected to by deceased-Dinesh, the brother of PW-1, who pacified the galata and also gave a slap on accused No.1."
}
},
{
"from_name": "label",
"id": "572662e6f9104c7fb6dbe5de95344b45",
"to_name": "text",
"type": "labels",
"value": {
"end": 11093,
"labels": [
"FAC"
],
"start": 10666,
"text": "On the next day evening i.e., on 27.9.2010, while himself (PW-1) along with his deceased brother Dinesh and their friends i.e., PW-4 Naveen Kumar and PW-10 Manjunath, were removing the shed (pandal) erected for the installation of Ganesh idol, the accused No.1, along with his associates, came to the said place at 7.45 p.m. and picked up a quarrel with deceased by questioning as to why he had bet him on the previous evening."
}
},
{
"from_name": "label",
"id": "7b3ad95b81114d90807fb8c6842cadcd",
"to_name": "text",
"type": "labels",
"value": {
"end": 11246,
"labels": [
"FAC"
],
"start": 11094,
"text": "Accused No.1 assaulted the deceased with hands and also instigated the other members of the assembly who were with him, not to spare the deceased alive."
}
},
{
"from_name": "label",
"id": "9589d51e163c4042a323fa50af14caa9",
"to_name": "text",
"type": "labels",
"value": {
"end": 11319,
"labels": [
"FAC"
],
"start": 11247,
"text": "At that time, accused No.3 assaulted his brother with hands on his face."
}
},
{
"from_name": "label",
"id": "6fed7d20f27942969a9e7178069e3c2c",
"to_name": "text",
"type": "labels",
"value": {
"end": 11380,
"labels": [
"FAC"
],
"start": 11320,
"text": "Accused No.2 and one Prabha and Jopadi attacked his brother."
}
},
{
"from_name": "label",
"id": "b196d9f2af68488a8bce06de87757bcf",
"to_name": "text",
"type": "labels",
"value": {
"end": 11606,
"labels": [
"FAC"
],
"start": 11381,
"text": "Accused No.2 stabbed his brother on the chest with knife, Prabha stabbed his brother on the stomach with knife, Jopadi stabbed his brother with knife on hands and all the assailants assaulted his brother with their legs also."
}
},
{
"from_name": "label",
"id": "be046e6af566420d9f104b252dfdc0d9",
"to_name": "text",
"type": "labels",
"value": {
"end": 11704,
"labels": [
"FAC"
],
"start": 11607,
"text": "After - 12 - assaulting him and on crying by the injured, all the accused ran away from the spot."
}
},
{
"from_name": "label",
"id": "6706a51318604f248978cfc26468e032",
"to_name": "text",
"type": "labels",
"value": {
"end": 11744,
"labels": [
"FAC"
],
"start": 11705,
"text": "He (PW-1) could not rescue his brother."
}
},
{
"from_name": "label",
"id": "22d78103068f47d18f0dbaf23b3049e6",
"to_name": "text",
"type": "labels",
"value": {
"end": 11871,
"labels": [
"FAC"
],
"start": 11745,
"text": "Then he took his injured brother to Kavya Nursing Home, where the doctor advised him to take the injured to a bigger hospital."
}
},
{
"from_name": "label",
"id": "bfdf948c859247739435e60c9c3436f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 11996,
"labels": [
"FAC"
],
"start": 11872,
"text": "As such, he took the injured to Sagar Apollo Hospital, but his brother succumbed to the injuries on the way to the hospital."
}
},
{
"from_name": "label",
"id": "79501199be8948c398ab4900095eb248",
"to_name": "text",
"type": "labels",
"value": {
"end": 12076,
"labels": [
"FAC"
],
"start": 11997,
"text": "Thereafter, he went to the police station and lodged a complaint as per Ex.P-1."
}
},
{
"from_name": "label",
"id": "773d54f2815a4830bcc31d95abd6bdd0",
"to_name": "text",
"type": "labels",
"value": {
"end": 12220,
"labels": [
"FAC"
],
"start": 12077,
"text": "On the very night at 11.30 p.m., the police visited the place of offence and drew the spot mahazar (scene of offence panchanama) as per Ex.P-2."
}
},
{
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"id": "a6e06567affa4ed8bb012f6d6aa9485b",
"to_name": "text",
"type": "labels",
"value": {
"end": 12310,
"labels": [
"FAC"
],
"start": 12221,
"text": "But, the respondent police could not seize any material objects in the place of incident."
}
},
{
"from_name": "label",
"id": "59f49593fcfb47a18b5fab10d1958865",
"to_name": "text",
"type": "labels",
"value": {
"end": 12451,
"labels": [
"ANALYSIS"
],
"start": 12310,
"text": "\n 13. It is also the evidence of PW-1 that on 28.9.2010, the police called him to the police station, where he identified accused Nos.1 to 5."
}
},
{
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"id": "ad0b2ecf8eac4e51b13a633d27a081b1",
"to_name": "text",
"type": "labels",
"value": {
"end": 12546,
"labels": [
"ANALYSIS"
],
"start": 12452,
"text": "On 8.10.2010, he was once again called to the police station where he identified accused No.7."
}
},
{
"from_name": "label",
"id": "d1a0f369fe5a46798560300f00772ab1",
"to_name": "text",
"type": "labels",
"value": {
"end": 12805,
"labels": [
"ANALYSIS"
],
"start": 12547,
"text": "The witness also stated that accused No.2 stabbed his brother with knife, accused No.1 bet on his cheek, accused No.3 assaulted his brother with his fist and - 13 - other accused also bet his brother, but he could not observe the activities of other accused."
}
},
{
"from_name": "label",
"id": "9d3ce40eba874bd3a9486eea5c464ad3",
"to_name": "text",
"type": "labels",
"value": {
"end": 12908,
"labels": [
"ANALYSIS"
],
"start": 12806,
"text": "The witness also identified the knife at MO-1, stating that the same was in the hands of accused No.2."
}
},
{
"from_name": "label",
"id": "a8a3e58910704af0841e78142d4e7380",
"to_name": "text",
"type": "labels",
"value": {
"end": 12980,
"labels": [
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],
"start": 12909,
"text": "He was subjected to a detailed cross-examination from the accused side."
}
},
{
"from_name": "label",
"id": "9cea1ba9b89d468f96a4636e96ac7c48",
"to_name": "text",
"type": "labels",
"value": {
"end": 13195,
"labels": [
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],
"start": 12980,
"text": "\n 14. PW-2 Venkatesh, the father of the deceased though has stated that his son Dinesh was murdered, but he has made it clear that he is only a hearsay witness and does not know who has caused the murder of his son."
}
},
{
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"id": "6490dfded20e4095a9867b6a1574431b",
"to_name": "text",
"type": "labels",
"value": {
"end": 13278,
"labels": [
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],
"start": 13195,
"text": "\nSame was the evidence with respect of PW-3 Bhagyamma, the mother of the deceased."
}
},
{
"from_name": "label",
"id": "c4a416ef454c41e188ae5d74619b5828",
"to_name": "text",
"type": "labels",
"value": {
"end": 13366,
"labels": [
"ANALYSIS"
],
"start": 13278,
"text": "\n 15. PW-4 Naresh Kumar, was projected as an independent eye witness by the prosecution."
}
},
{
"from_name": "label",
"id": "0b48b56ace4544099b54e8b24abf3b35",
"to_name": "text",
"type": "labels",
"value": {
"end": 13581,
"labels": [
"FAC"
],
"start": 13367,
"text": "In his evidence he has stated that on 27.9.2010, at 7.45 p.m.\nalong with the deceased, while he was engaged in removing the shed (pandal) erected for the purpose of Ganesh festival, PWs-1 and 10 were also with him."
}
},
{
"from_name": "label",
"id": "ad79545fe259470f978efe4a966a8e6d",
"to_name": "text",
"type": "labels",
"value": {
"end": 13693,
"labels": [
"FAC"
],
"start": 13582,
"text": "At that time, accused No.1 joined by three to four persons, came there and picked up quarrel with the deceased."
}
},
{
"from_name": "label",
"id": "0f93231b619e45538b8832af119b288c",
"to_name": "text",
"type": "labels",
"value": {
"end": 13771,
"labels": [
"FAC"
],
"start": 13694,
"text": "Two of - 14 - them held the deceased and accused No.3 assaulted the deceased."
}
},
{
"from_name": "label",
"id": "34ef3e07208542b0be86015f5c585c02",
"to_name": "text",
"type": "labels",
"value": {
"end": 13854,
"labels": [
"FAC"
],
"start": 13772,
"text": "Himself, joined by PWs-1 and 10, tried to rescue the deceased, but they could not."
}
},
{
"from_name": "label",
"id": "5c6f7e76f5fe45fb831be5d1f6eac56a",
"to_name": "text",
"type": "labels",
"value": {
"end": 13967,
"labels": [
"FAC"
],
"start": 13855,
"text": "Further, one Prabha stabbed the deceased and other three to four persons assaulted the deceased with their legs."
}
},
{
"from_name": "label",
"id": "e19de161727946ec844e2da19f4eefe2",
"to_name": "text",
"type": "labels",
"value": {
"end": 14027,
"labels": [
"FAC"
],
"start": 13968,
"text": "When the deceased started crying, all the accused ran away."
}
},
{
"from_name": "label",
"id": "8d3599fe37034cd49c38d597e0646a3e",
"to_name": "text",
"type": "labels",
"value": {
"end": 14186,
"labels": [
"FAC"
],
"start": 14028,
"text": "Therefore, the deceased was taken to Kavya Nursing Home and then to Sagar Apollo Hospital, where the deceased was declared as dead on the way to the hospital."
}
},
{
"from_name": "label",
"id": "f2810416b370438e96410f87c90b3586",
"to_name": "text",
"type": "labels",
"value": {
"end": 14363,
"labels": [
"FAC"
],
"start": 14187,
"text": "The witness also stated that in view of the previous night's incident at the orchestra, the accused No.1, joined by other accused, have committed the murder of deceased Dinesh."
}
},
{
"from_name": "label",
"id": "4e0fc35055f04993a17a7aaf5dbb74e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 14459,
"labels": [
"FAC"
],
"start": 14364,
"text": "This witness also stated that he has identified accused Nos.1 to 5 and 7 in the police station."
}
},
{
"from_name": "label",
"id": "e7589583470343fb9eb79f002f56fa97",
"to_name": "text",
"type": "labels",
"value": {
"end": 14528,
"labels": [
"FAC"
],
"start": 14460,
"text": "He stated that accused No.1 had an intention to finish the deceased."
}
},
{
"from_name": "label",
"id": "206d2093aedf4840bf21bf29488045a7",
"to_name": "text",
"type": "labels",
"value": {
"end": 14659,
"labels": [
"FAC"
],
"start": 14529,
"text": "Accused No.1 and one Prabha stabbed the deceased with knife, accused No.7 and one Tirupati were holding the deceased at that time."
}
},
{
"from_name": "label",
"id": "3749e19eb27b4a0d970c888095a67614",
"to_name": "text",
"type": "labels",
"value": {
"end": 14705,
"labels": [
"FAC"
],
"start": 14660,
"text": "Other accused were also beating the deceased."
}
},
{
"from_name": "label",
"id": "50317b55e03d472d9a2d342eec1d911a",
"to_name": "text",
"type": "labels",
"value": {
"end": 14797,
"labels": [
"FAC"
],
"start": 14706,
"text": "He has identified the knife at MO-1 stating that the same was in the hands of accused No.2."
}
},
{
"from_name": "label",
"id": "8542f6284e5b447b88e69e1a993d503c",
"to_name": "text",
"type": "labels",
"value": {
"end": 14875,
"labels": [
"FAC"
],
"start": 14798,
"text": "He was also subjected to a detailed cross- examination from the accused side."
}
},
{
"from_name": "label",
"id": "7de807d0a21447a1afc7d2d3eaddbd89",
"to_name": "text",
"type": "labels",
"value": {
"end": 14887,
"labels": [
"ANALYSIS"
],
"start": 14875,
"text": "\n - 15 - 16."
}
},
{
"from_name": "label",
"id": "a1210950771e4dab9a79b0d68d52b720",
"to_name": "text",
"type": "labels",
"value": {
"end": 15067,
"labels": [
"ANALYSIS"
],
"start": 14888,
"text": "PW-5 Kumar, the maternal uncle of the deceased though has stated that the deceased was murdered, but admittedly he is a hearsay witness and says that he learnt about the incident."
}
},
{
"from_name": "label",
"id": "19c12969183e45e9958db22d457c48db",
"to_name": "text",
"type": "labels",
"value": {
"end": 15142,
"labels": [
"ANALYSIS"
],
"start": 15067,
"text": "\n 17. PW-6 Prashant, has stated about the alleged incident dated 26.9.2010."
}
},
{
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"id": "3bca900dea6844b5ac9cf91e1104c2e0",
"to_name": "text",
"type": "labels",
"value": {
"end": 15362,
"labels": [
"FAC"
],
"start": 15143,
"text": "He has stated that on the said day, in the evening, he too was one among the audience in the orchestra, wherein accused No.1 Ayyappa was doing some galata (disturbance/nuisance) and as such, deceased Dinesh slapped him."
}
},
{
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"end": 15590,
"labels": [
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],
"start": 15363,
"text": "Though this witness has not stated that he has seen the next day's incident of alleged murder of Dinesh, but, stated that after hearing about the incident, he went to Sagar Apollo Hospital and saw the dead body of the deceased."
}
},
{
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],
"start": 15591,
"text": "Thus, his evidence would help in understanding the incident said to have occurred in the evening of 26.9.2010, where the deceased is said to have given a slap to accused No.1, but it does not help in knowing the details of the incident said to have occurred on 27.9.2010."
}
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],
"start": 15864,
"text": "- 16 - 18."
}
},
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"labels": [
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"start": 15875,
"text": "PW-7 Babu, in his evidence though has stated about he visiting the Kavya Nursing Home based on an information given to him by CW-4 and thereafter, he visiting Fortis Hospital and coming to know about the death of the deceased, but his evidence is silent about the alleged incident dated 27.9.2010, where the deceased was said to have hacked to death."
}
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{
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"start": 16225,
"text": "\n 19. PW-8 A.B.Krishna, has spoken about drawing of scene of offence panchanama (spot mahazar) in his presence as per Ex.P-2.\n 20."
}
},
{
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"id": "5c7958e62a34484f976bc7ee3f02478b",
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"value": {
"end": 16498,
"labels": [
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],
"start": 16356,
"text": "PW-9 Krishna Murthy, has stated about the police drawing inquest panchanama as per Ex.P-3 on the dead body of deceased Dinesh in his presence."
}
},
{
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"id": "785791556c18497a92c8f8ab961f9e1c",
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"end": 16593,
"labels": [
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],
"start": 16498,
"text": "\n 21. PW-10 Manjunath, was projected as another eye witness to the incident by the prosecution."
}
},
{
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"id": "b41715612a90486b94ec8329d07b4c14",
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"value": {
"end": 16904,
"labels": [
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],
"start": 16594,
"text": "He has stated in his evidence to the effect that on 27.9.2010, at about 7.45 p.m., while he was removing the shed erected for Ganesha idol, along with deceased, PW-1 and PW-4, the accused No.1, along with seven to eight persons, came there and - 17 - picked up quarrel with the deceased and bet him with hands."
}
},
{
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"id": "a4737a7aec0d425b88a7431f6f25b027",
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"value": {
"end": 17122,
"labels": [
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],
"start": 16905,
"text": "Accused No.3 and accused No.7 held the deceased and accused No.1 instigated others to finish the deceased, for which, one Prabha stabbed deceased with knife, accused Nos.4 and 5 assaulted the deceased with their legs."
}
},
{
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"id": "db404cbf3a9e4d3ca7aafb59392209b7",
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"labels": [
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],
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"text": "\nThereafter, all the accused ran away from the spot."
}
},
{
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"value": {
"end": 17262,
"labels": [
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],
"start": 17175,
"text": "He has identified accused Nos.1, 2, 4, 5 and 7 in the police station as the assailants."
}
},
{
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"id": "cf970fc64aa04116a4f4749821035767",
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"end": 17348,
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],
"start": 17263,
"text": "He was subjected to a thorough and searching cross-examination from the accused side."
}
},
{
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"value": {
"end": 17564,
"labels": [
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],
"start": 17348,
"text": "\n 22. PW-12 Syed Mushafa, Police Constable, has spoken to the effect that in this case, himself, joined by other Constables, at the instruction of his superiors, apprehended accused No.1 and accused Nos.2 to 5 and 7."
}
},
{
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"id": "54ce4bfd9b244fdab51fef5b6947cef4",
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"end": 17770,
"labels": [
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],
"start": 17564,
"text": "\n 23. PW-13 is the Police Constable who brought the clothes of the deceased from the Victoria Hospital after conducting autopsy on the body of the deceased and producing it before the Investigating Officer."
}
},
{
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"id": "0d431842b64a43d98d0bd3c96b0eaa7f",
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"value": {
"end": 17961,
"labels": [
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],
"start": 17770,
"text": "\n 24. PW-14 Raghu, has stated that recovery of the knife at MO-1 was made at the instance of accused No.2 in - 18 - his presence and that a panchanama as per Ex.P-7 was drawn in his presence."
}
},
{
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"id": "de4c66e5c1c6499687a30b7ba3b4360a",
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"value": {
"end": 18040,
"labels": [
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],
"start": 17962,
"text": "The witness has identified both the panchanama, as well as the weapon at MO-1."
}
},
{
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"id": "4e6ad987caca4a078e3089004449b2c4",
"to_name": "text",
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"value": {
"end": 18129,
"labels": [
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],
"start": 18041,
"text": "Denial suggestions made to him in his cross-examination was not admitted as true by him."
}
},
{
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"id": "50615079d8404a37a630b88d7682d6ba",
"to_name": "text",
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"value": {
"end": 18359,
"labels": [
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],
"start": 18129,
"text": "\n 25. PW-15 Niyothi Mani, a Woman Police Constable, has stated that it was she who has carried the seized four articles to the Forensic Science Laboratory as per the order of her superiors and submitted the same at the laboratory."
}
},
{
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"id": "643ed70560144e6cbbcaf88289818d2e",
"to_name": "text",
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"value": {
"end": 18370,
"labels": [
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],
"start": 18359,
"text": "\n 26. PW-16"
}
},
{
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"id": "6e1952ec08b64fdea8906936ca6a1524",
"to_name": "text",
"type": "labels",
"value": {
"end": 18867,
"labels": [
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],
"start": 18371,
"text": "E.I.Sirajuddin, the Police Sub-Inspector of the complainant police station has stated that on 27.9.2010, at 10.15 p.m. CW-1 appeared before him and lodged a complaint as per Ex.P-1, which he registered in there station Crime No.1118/2010 and submitted FIR to the Court as per Ex.P-8.\n PW-17 Purushotham M.L., the Police Inspector has stated about the investigation said to have been done by him in this matter and filing the charge sheet against the accused after completion of the investigation."
}
},
{
"from_name": "label",
"id": "5f46b8e80a4f45af95645aa431d1233c",
"to_name": "text",
"type": "labels",
"value": {
"end": 19323,
"labels": [
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],
"start": 18868,
"text": "He has given - 19 - the details of his investigation, which includes visiting the scene of offence and drawing of scene of offence panchanama, recording of the statement of witnesses, drawing inquest panchanama and arresting the accused and recording voluntary statements said to have been given by them and also recovery of incriminating articles at the instance of the accused and based upon their alleged voluntary statement in the presence of panchas."
}
},
{
"from_name": "label",
"id": "d17ae257294c457b9b5f3306274417f9",
"to_name": "text",
"type": "labels",
"value": {
"end": 19672,
"labels": [
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],
"start": 19324,
"text": "He has also stated about sending the seized articles to Forensic Science Laboratory through his staff and getting the opinion of the doctor who conducted the autopsy and also getting the opinion from him about the relationship of the injuries found on the deceased with the weapon said to have been seized by him during the course of investigation."
}
},
{
"from_name": "label",
"id": "0b2202da34c84756bed3ba0d7740bcad",
"to_name": "text",
"type": "labels",
"value": {
"end": 19802,
"labels": [
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],
"start": 19673,
"text": "He was subjected to a detailed cross-examination, however, he adhered to his original version given in his examination-in- chief."
}
},
{
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"id": "ecb136333f2a4038af2333addc7150fb",
"to_name": "text",
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"value": {
"end": 19984,
"labels": [
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],
"start": 19802,
"text": "\n 27. From the above details of the evidences of the witnesses, what can be seen is that it is only PWs-1, 4 and 10 who are very important and material witnesses in - 20 - this case."
}
},
{
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"id": "cee04599700e4ae5aa9a94006f2db823",
"to_name": "text",
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"value": {
"end": 20079,
"labels": [
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],
"start": 19985,
"text": "All the three of them have claimed themselves to be the eye witnesses to the alleged incident."
}
},
{
"from_name": "label",
"id": "15612229e0a44edaa28576acd948832e",
"to_name": "text",
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"value": {
"end": 20244,
"labels": [
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],
"start": 20079,
"text": "\n 28. A reading of the evidence of PW-1, who is also the complainant, go to show that he has seen accused No.1 of scolding the deceased and also assaulting him once."
}
},
{
"from_name": "label",
"id": "538e27fa670842b1b7ead3acb3609420",
"to_name": "text",
"type": "labels",
"value": {
"end": 20339,
"labels": [
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],
"start": 20244,
"text": "\nHowever, he has not alleged any overt act against accused No.1 in his complaint lodged by him."
}
},
{
"from_name": "label",
"id": "51dbd0b0504e4f00a07c1d1da600827c",
"to_name": "text",
"type": "labels",
"value": {
"end": 20447,
"labels": [
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],
"start": 20340,
"text": "In his complaint, he has only stated that accused No.1 shouted that Dinesh (deceased) should not be spared."
}
},
{
"from_name": "label",
"id": "73865bd6aa394afeb956157e1c58e902",
"to_name": "text",
"type": "labels",
"value": {
"end": 20544,
"labels": [
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],
"start": 20448,
"text": "The allegations of assaulting the deceased were all made against other accused by the witnesses."
}
},
{
"from_name": "label",
"id": "e7a2fb1784ee45b7abb81dc3e8b4712b",
"to_name": "text",
"type": "labels",
"value": {
"end": 20637,
"labels": [
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],
"start": 20545,
"text": "Therefore, the evidence of PW-1 to the effect that accused No.1 assaulted is an improvement."
}
},
{
"from_name": "label",
"id": "874e676fb7f245fdbd41956c2951f9de",
"to_name": "text",
"type": "labels",
"value": {
"end": 20831,
"labels": [
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],
"start": 20637,
"text": "\n Secondly, PW-1 in his complaint at the first instance has stated that one Vasu @ Wale Vasu and one more person stabbed the deceased near his chest and abdomen with knives they were possessing."
}
},
{
"from_name": "label",
"id": "fce51ae8a47a49c6be71db824854b3d0",
"to_name": "text",
"type": "labels",
"value": {
"end": 20910,
"labels": [
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],
"start": 20832,
"text": "No where in his complaint he has identified as to who that `other person' was."
}
},
{
"from_name": "label",
"id": "deddbe31fc5f41048bb4e4ee6dadb43d",
"to_name": "text",
"type": "labels",
"value": {
"end": 21044,
"labels": [
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],
"start": 20911,
"text": "On the other hand, he has stated in his evidence that it was accused No.2 and one Prabha stabbed the deceased - 21 - with the knives."
}
},
{
"from_name": "label",
"id": "f58b0996337c4a358013307dba1bbc3c",
"to_name": "text",
"type": "labels",
"value": {
"end": 21130,
"labels": [
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],
"start": 21045,
"text": "No where he has stated as to how come he came to know about the name of accused No.2."
}
},
{
"from_name": "label",
"id": "d91fdb31f7404acda65ddd80b3a1ee76",
"to_name": "text",
"type": "labels",
"value": {
"end": 21269,
"labels": [
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],
"start": 21131,
"text": "Even the Investigating Officer also has not stated as to how PW-1 came to know the name of that `other person' as Jitendra (accused No.2)."
}
},
{
"from_name": "label",
"id": "26efbcb5bc9a4d5da87426466297b7da",
"to_name": "text",
"type": "labels",
"value": {
"end": 21536,
"labels": [
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],
"start": 21270,
"text": "As such, in the absence of any evidence or material to show that the person shown as another person who stabbed the deceased was accused No.2 - Jitendra and that identity was subsequently came to the knowledge of PW-1, it cannot be taken that PW-1 knew accused No.2."
}
},
{
"from_name": "label",
"id": "af9378577f994f8ea27f075a90e03ab0",
"to_name": "text",
"type": "labels",
"value": {
"end": 21708,
"labels": [
"ANALYSIS"
],
"start": 21536,
"text": "\nThus, initially accusing one of the assailant without name and subsequently replacing that person with accused No.2 in his evidence amounts to an improvement made by PW-1."
}
},
{
"from_name": "label",
"id": "421e3e8e21d841d2afc1c778541b13b7",
"to_name": "text",
"type": "labels",
"value": {
"end": 21955,
"labels": [
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],
"start": 21709,
"text": "Interestingly, the very same witness who has stated in his complaint that among the two persons who are said to have stabbed his brother Dinesh, apart from unnamed person, the other was specifically named as Vasu @ Wale Vasu, who is accused No.3."
}
},
{
"from_name": "label",
"id": "2ad2a06889bc42fa880846b541f57f88",
"to_name": "text",
"type": "labels",
"value": {
"end": 22120,
"labels": [
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],
"start": 21956,
"text": "However, in his evidence as PW-1, he introduced accused Prabha and accused Jopady as two other persons along with accused No.2 who stabbed the deceased with knives."
}
},
{
"from_name": "label",
"id": "89ca2ff219184a38a961c7bffb22fbf3",
"to_name": "text",
"type": "labels",
"value": {
"end": 22296,
"labels": [
"ANALYSIS"
],
"start": 22121,
"text": "Therefore, the evidence of PW-1 on the very important aspect of the alleged overt acts of the - 22 - accused clearly proves to be an improvement made by him in his deposition."
}
},
{
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"id": "1207c082be9e40cbb74fd5b026e6b70f",
"to_name": "text",
"type": "labels",
"value": {
"end": 22351,
"labels": [
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],
"start": 22297,
"text": "As such, it is not safe to rely upon such improvement."
}
},
{
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"id": "6e3dee962b92444e88d3770e54cfa6e9",
"to_name": "text",
"type": "labels",
"value": {
"end": 22512,
"labels": [
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],
"start": 22351,
"text": "\n 29. With respect to the evidence of PW.4-Naresh Kumar is concerned, as already observed, he also claims to be one of the eye witnesses to the alleged incident."
}
},
{
"from_name": "label",
"id": "9ee8898a3d3a44c6ade97de5b4912f4a",
"to_name": "text",
"type": "labels",
"value": {
"end": 22684,
"labels": [
"ANALYSIS"
],
"start": 22513,
"text": "The said witness in his examination-in-chief has stated about the presence of accused No.1 at the time of commission of offence and another assailant with the name Prabha."
}
},
{
"from_name": "label",
"id": "fd88c02ee5324467ac70949a884c4eb9",
"to_name": "text",
"type": "labels",
"value": {
"end": 22781,
"labels": [
"ANALYSIS"
],
"start": 22685,
"text": "He has not named other accused, including accused No.2/appellant in Criminal Appeal No.936/2012."
}
},
{
"from_name": "label",
"id": "6384fe31299e433db850b7c13e6b6126",
"to_name": "text",
"type": "labels",
"value": {
"end": 23005,
"labels": [
"ANALYSIS"
],
"start": 22782,
"text": "Even though he has stated in his examination-in-chief that accused No.1/appellant in Criminal Appeal No.1147/2012, stabbed with a knife, he has no where whispered about the alleged overt act of accused No.2 in his evidence."
}
},
{
"from_name": "label",
"id": "b6b397e0db76401d8f2d99483d048802",
"to_name": "text",
"type": "labels",
"value": {
"end": 23335,
"labels": [
"ANALYSIS"
],
"start": 23005,
"text": "\nInterestingly, though he claims to be an eye witness to the alleged incident, in his examination-in-chief, he has made a statement that he came to know that on the previous day of the incident, in an orchestra, deceased had given a slap on accused No.1 Ayyappa and in vengeance to the same, Ayyappa and others have killed Dinesh."
}
},
{
"from_name": "label",
"id": "6777ee5be0fc47b7ba242eb77d0e8dd9",
"to_name": "text",
"type": "labels",
"value": {
"end": 23450,
"labels": [
"ANALYSIS"
],
"start": 23336,
"text": "That is, had he - 23 - really been an eye witness to the incident, he would not have used the word \"came to know\"."
}
},
{
"from_name": "label",
"id": "8163987a664048dc84eba5ed648369d1",
"to_name": "text",
"type": "labels",
"value": {
"end": 23573,
"labels": [
"ANALYSIS"
],
"start": 23451,
"text": "Further, he himself has stated that he has seen accused Jitendra, Ayyappa, Vasu, Ishwarappa, Madesh in the police station."
}
},
{
"from_name": "label",
"id": "b5771c8e82434ce3b6e388dde775125c",
"to_name": "text",
"type": "labels",
"value": {
"end": 23754,
"labels": [
"ANALYSIS"
],
"start": 23574,
"text": "Even according to the Investigating Officer, accused were shown to PW-4 in the police station, that means, no Test Identification Parade was conducted by the Investigating Officer."
}
},
{
"from_name": "label",
"id": "3e5a26b8ed224f61bf9742f9e6fe483d",
"to_name": "text",
"type": "labels",
"value": {
"end": 24089,
"labels": [
"ANALYSIS"
],
"start": 23755,
"text": "When PWs-1 and 4 have not named accused No.2 in their statement, nor they have disclosed about the identify of the said accused, by which, the accused could have been easily identified, in such a situation, it was required for the Investigating Officer to get the accused identified by these witnesses in a Test Identification Parade."
}
},
{
"from_name": "label",
"id": "3708337c97ce45809d1ccaa8d1e32b21",
"to_name": "text",
"type": "labels",
"value": {
"end": 24234,
"labels": [
"ANALYSIS"
],
"start": 24089,
"text": "\nOn the contrary, the Investigating Officer has directly shown the accused in this case to the witnesses and said to have got identified by them."
}
},
{
"from_name": "label",
"id": "c3d3c9180b1241c887c8dd47997d3d8b",
"to_name": "text",
"type": "labels",
"value": {
"end": 24482,
"labels": [
"ANALYSIS"
],
"start": 24234,
"text": "\n The very same witness PW-4 in his cross- examination, has clearly stated that he came to know about the name of accused No.1-Ayyappa on the next date of the incident and that he did not know the names of three accused who had accompanied Ayyappa."
}
},
{
"from_name": "label",
"id": "dfe27481083e4619beb81e2402096f07",
"to_name": "text",
"type": "labels",
"value": {
"end": 24633,
"labels": [
"ANALYSIS"
],
"start": 24483,
"text": "This leads to an - 24 - inference that according to this witness there were only four accused at the time of incident i.e., Ayyappa plus three others."
}
},
{
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"id": "57e53d383c144ebd8de2a80bf8e0eaa2",
"to_name": "text",
"type": "labels",
"value": {
"end": 24725,
"labels": [
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],
"start": 24634,
"text": "If that were to be the case, Section 149 of Indian Penal Code won't find place in the case."
}
},
{
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"id": "117a2823abde4d648845523617d3368a",
"to_name": "text",
"type": "labels",
"value": {
"end": 24897,
"labels": [
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],
"start": 24726,
"text": "Further the very same PW-4 in his cross-examination has already stated that he has seen accused No.2 in the police station and prior to that, he had not seen him anywhere."
}
},
{
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"id": "6ade62711f574eae8dc839e65d260dc8",
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"end": 25074,
"labels": [
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],
"start": 24898,
"text": "This also leads to an inference that among the accused i.e., Ayyappa plus three others, accused No.2 was not there and the total number of the accused also were four in number."
}
},
{
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"id": "6bbfcac6559748b4ba7c0be92b262868",
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"end": 25153,
"labels": [
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],
"start": 25075,
"text": "In this way, the evidence of PW-4 also does not inspire confidence to believe."
}
},
{
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"id": "26bd9ce143ef4df78622d74dfa285a27",
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"end": 25208,
"labels": [
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],
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"text": "\n 30. The third important alleged eye witness is PW-10."
}
},
{
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"id": "5014c5ff73954785b1eb9ff89ab2b112",
"to_name": "text",
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"end": 25358,
"labels": [
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],
"start": 25209,
"text": "As observed above, in his examination-in-chief, he has stated that he was an eye witness to the incident and has seen the occurrence of the incident."
}
},
{
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"id": "168bf432e22f4928b08a2193ebdbcbc0",
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"end": 25405,
"labels": [
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],
"start": 25359,
"text": "He has given the details of the incident also."
}
},
{
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"id": "459b9bfc3fb14c66a9c75f280dc55ef9",
"to_name": "text",
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"end": 25543,
"labels": [
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],
"start": 25406,
"text": "However, a reading of his evidence goes to show firstly that no where in his evidence, he has alleged any overt act against accused No.2."
}
},
{
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"id": "088a911a0ec44508a845f01f26f3c916",
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"end": 25551,
"labels": [
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],
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"text": "\n - 25 -"
}
},
{
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"id": "3f4f1d41c7704c92935e17d26096dd28",
"to_name": "text",
"type": "labels",
"value": {
"end": 25695,
"labels": [
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],
"start": 25552,
"text": "Secondly, in his cross-examination, he has categorically stated that he has seen accused No.1-Ayyappa for the first time in the police station."
}
},
{
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"id": "cfd125cceb6345e796306c6fafaf7f22",
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"value": {
"end": 25788,
"labels": [
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],
"start": 25696,
"text": "He has also stated that at the time of incident, in that place, there were about 30 persons."
}
},
{
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"id": "7cf7a5b2a84a4bcebff2b3671bc4c888",
"to_name": "text",
"type": "labels",
"value": {
"end": 25865,
"labels": [
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],
"start": 25789,
"text": "He does not know whether accused No.1 was also there among those 30 persons."
}
},
{
"from_name": "label",
"id": "8de9ccdad03e42109e77055eeb445d74",
"to_name": "text",
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"value": {
"end": 26273,
"labels": [
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],
"start": 25866,
"text": "Thus, his clear statement that he has seen accused No.1-Ayyappa for the first time in the police station and his second statement that he does not know whether accused No.1 was also there among the people who were there in the place of the incident, not only introduces a serious doubt about the presence of accused No.1 at the place of incident, but also about the trustworthiness of the evidence of PW-10."
}
},
{
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"id": "aeaca918bdc04381a21f6ad15aec058f",
"to_name": "text",
"type": "labels",
"value": {
"end": 26544,
"labels": [
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],
"start": 26274,
"text": "The said witness, who in his examination-in-chief, has categorically alleged over act against accused No.1 showing that accused No.1 was present in the incident, has made a quite contradictory statement in his cross-examination by making the statement as observed above."
}
},
{
"from_name": "label",
"id": "16f536e95c0647a1b0ca5a29c2327e6d",
"to_name": "text",
"type": "labels",
"value": {
"end": 26783,
"labels": [
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],
"start": 26544,
"text": "\n Thirdly, this witness who has given the details of the incident, including the overt acts, in his cross-examination admitted a suggestion as true to the effect that he cannot - 26 - say as to who scolded whom and also who assaulted whom."
}
},
{
"from_name": "label",
"id": "269e0d2bf43d4baa9c1565d663dbb1a2",
"to_name": "text",
"type": "labels",
"value": {
"end": 26832,
"labels": [
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],
"start": 26783,
"text": "\nThis further introduces a doubt in his evidence."
}
},
{
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"id": "66be9642d1644b91ac5b6859c0c478a0",
"to_name": "text",
"type": "labels",
"value": {
"end": 27121,
"labels": [
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],
"start": 26832,
"text": "\n Fourthly, the very same witness who claims to be an eye witness to the incident and speaks about the alleged act of stabbing the deceased in his presence, has, in his cross-examination, admitted a suggestion as true that till a telephone call came, he did not know as to how Dinesh died."
}
},
{
"from_name": "label",
"id": "c5ec3586fad243b1b82d15fea8b6be9d",
"to_name": "text",
"type": "labels",
"value": {
"end": 27343,
"labels": [
"ANALYSIS"
],
"start": 27122,
"text": "This is very strange that a person who claims to be an eye witness for the alleged stabbing of deceased-Dinesh allegedly by the accused, in his cross-examination has stated that he does not know as to how the victim died."
}
},
{
"from_name": "label",
"id": "b20ab082716c439e99d36afce7d65443",
"to_name": "text",
"type": "labels",
"value": {
"end": 27396,
"labels": [
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],
"start": 27343,
"text": "\nThis further augments the suspicion in his evidence."
}
},
{
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"id": "0a192183298f40ecac50bd223a337533",
"to_name": "text",
"type": "labels",
"value": {
"end": 27632,
"labels": [
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],
"start": 27396,
"text": "\n Lastly, this witness, who claims to be an eye witness and said to have given statement to the police to that effect taking the name of accused No.1, has in his cross-examination stated that he had been to police station only for once."
}
},
{
"from_name": "label",
"id": "d9c84d3aba3f437f9dc0d78518cb9df5",
"to_name": "text",
"type": "labels",
"value": {
"end": 27737,
"labels": [
"ANALYSIS"
],
"start": 27633,
"text": "Since Sharavana Kumar (PW-1) and Rajashekar shown him the accused as Ayyappa, he came to know about him."
}
},
{
"from_name": "label",
"id": "b0d8f5c3f6c24512bd4cf48ae211fbec",
"to_name": "text",
"type": "labels",
"value": {
"end": 27828,
"labels": [
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],
"start": 27738,
"text": "By stating so, he has further weakened his own statement made in his examination-in-chief."
}
},
{
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"id": "c18935981ad1440e90331ccaf15d85f0",
"to_name": "text",
"type": "labels",
"value": {
"end": 28077,
"labels": [
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],
"start": 27829,
"text": "He - 27 - has shown his ignorance about identity of accused No.1- Ayyappa either at the time of the incident or immediately thereafter and it was the said other two persons showing the said accused and disclosing his identity in the police station."
}
},
{
"from_name": "label",
"id": "43259469ce3843338fc2acb8b0223d01",
"to_name": "text",
"type": "labels",
"value": {
"end": 28141,
"labels": [
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],
"start": 28078,
"text": "Therefore, the evidence of PW-10 is also not safe to rely upon."
}
},
{
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"id": "22ca37aa4d8641cabe7394ed8699ac2d",
"to_name": "text",
"type": "labels",
"value": {
"end": 28278,
"labels": [
"ANALYSIS"
],
"start": 28143,
"text": "31. Apart from the above, one more comparison between PWs-1, 4 and 10, who claims to be the eye witnesses, is also required to be made."
}
},
{
"from_name": "label",
"id": "ec7e9688b7644423a8d56e1c6aa5b719",
"to_name": "text",
"type": "labels",
"value": {
"end": 28418,
"labels": [
"ANALYSIS"
],
"start": 28279,
"text": "The said comparison is with respect to their statement regarding the overt acts of accused Nos.1 and 2 (appellants herein) in the incident."
}
},
{
"from_name": "label",
"id": "7c5411c0031b4b6fb73d1a1f5d016b93",
"to_name": "text",
"type": "labels",
"value": {
"end": 28495,
"labels": [
"ANALYSIS"
],
"start": 28419,
"text": "According to PW-1, accused No.1 scolded the deceased and assaulted him once."
}
},
{
"from_name": "label",
"id": "668d99edd3c740b4a97a1a416745844f",
"to_name": "text",
"type": "labels",
"value": {
"end": 28659,
"labels": [
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],
"start": 28496,
"text": "He does not speak about accused No.1 stabbing the deceased with knife, whereas PW-4 in his evidence has stated that accused No.1 stabbed the deceased with a knife."
}
},
{
"from_name": "label",
"id": "a1e1c5969af74eacb322d3c419d1d409",
"to_name": "text",
"type": "labels",
"value": {
"end": 28787,
"labels": [
"ANALYSIS"
],
"start": 28660,
"text": "PW-10 has not stated about accused No.1 stabbing the deceased, but he has only stated that accused No.1 assaulted the deceased."
}
},
{
"from_name": "label",
"id": "395872c9474f48318ea40acc99d26c52",
"to_name": "text",
"type": "labels",
"value": {
"end": 28946,
"labels": [
"ANALYSIS"
],
"start": 28788,
"text": "Thus, with respect to the alleged overt act of accused No.1 as against deceased is concerned, these three alleged eye witnesses have given different versions."
}
},
{
"from_name": "label",
"id": "574d84839bad493b9ffc40c97d72bb8c",
"to_name": "text",
"type": "labels",
"value": {
"end": 29070,
"labels": [
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],
"start": 28947,
"text": "Had they really - 28 - seen the incident, there ought to be uniformity in the evidence regarding overt acts of the accused."
}
},
{
"from_name": "label",
"id": "9cea8d6b37144063b1ea235748f045a4",
"to_name": "text",
"type": "labels",
"value": {
"end": 29316,
"labels": [
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],
"start": 29071,
"text": "It is also because the alleged victim is only one person and alleged assailants are also not much in number, as such, each of the alleged eye witnesses was expected to see the incident clearly and their evidence was expected to come uniformly.\n "
}
},
{
"from_name": "label",
"id": "8fb64e8e52cf4e1797db1782e01ffef1",
"to_name": "text",
"type": "labels",
"value": {
"end": 29567,
"labels": [
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],
"start": 29316,
"text": "Similarly, as observed above, PW-1 - the complainant who has not stated anything about the accused by name Prabha stabbing the deceased with knife, has only stated that one Vasu (accused No.3) and another person stabbing his brother Dinesh with knife."
}
},
{
"from_name": "label",
"id": "aae47692af1b493da24c18c24313f6a3",
"to_name": "text",
"type": "labels",
"value": {
"end": 29650,
"labels": [
"ANALYSIS"
],
"start": 29568,
"text": "In his evidence, he has clothed that \"another person\" as accused No.2 - Jithendra."
}
},
{
"from_name": "label",
"id": "d8fdd64f74f24303876100c0427018f2",
"to_name": "text",
"type": "labels",
"value": {
"end": 29785,
"labels": [
"ANALYSIS"
],
"start": 29650,
"text": "\nThus, according to him, two knives that were used in the commission of crime were by accused No.2 - Jithendra and accused No.3 - Vasu."
}
},
{
"from_name": "label",
"id": "58a790ac2f5e4f73a94900c566c0bd92",
"to_name": "text",
"type": "labels",
"value": {
"end": 29911,
"labels": [
"ANALYSIS"
],
"start": 29786,
"text": "On the contrary, PW-4 attributes use of knife by accused No.1 Ayyappa and the second knife by another accused by name Prabha."
}
},
{
"from_name": "label",
"id": "522cbb3063ce4883b31b6f6ac1df6550",
"to_name": "text",
"type": "labels",
"value": {
"end": 30098,
"labels": [
"ANALYSIS"
],
"start": 29912,
"text": "More interestingly, PW-10 has attributed the overt act of stabbing the deceased with the knife only to accused Prabha, but neither to accused No.1 Ayyappa nor to accused No.2 Jiithendra."
}
},
{
"from_name": "label",
"id": "96e604b1e3bc4c19b1c107bcd33dc736",
"to_name": "text",
"type": "labels",
"value": {
"end": 30104,
"labels": [
"ANALYSIS"
],
"start": 30098,
"text": "\n - 29"
}
},
{
"from_name": "label",
"id": "216df7df99b84fdab78fbe82a1b5f923",
"to_name": "text",
"type": "labels",
"value": {
"end": 30296,
"labels": [
"ANALYSIS"
],
"start": 30105,
"text": "- Therefore, on this very important aspect of description of the incident, more particularly, the overt acts by the accused also, there is major variations in the evidence of PWs-1, 4 and 10."
}
},
{
"from_name": "label",
"id": "a1182af7a3d14151b195787109e59b92",
"to_name": "text",
"type": "labels",
"value": {
"end": 30410,
"labels": [
"ANALYSIS"
],
"start": 30297,
"text": "For this reason also, the evidence of these three witnesses are also not safe to be relied upon as eye witnesses."
}
},
{
"from_name": "label",
"id": "656b9f96748147fb8c711e2383285a45",
"to_name": "text",
"type": "labels",
"value": {
"end": 30784,
"labels": [
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],
"start": 30410,
"text": "\n 32. Apart from the above, it is also cannot be ignored of the fact that the Sessions Court which has convicted accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 149 of Indian Penal Code, has failed to frame a specific charge either for the offence under Section 142 and/or for the offence punishable under Section 148 of Indian Penal Code."
}
},
{
"from_name": "label",
"id": "93e20ae1eacb4f14803c7412153677f2",
"to_name": "text",
"type": "labels",
"value": {
"end": 30973,
"labels": [
"ANALYSIS"
],
"start": 30784,
"text": "\nSection 142 of Indian Penal Code is a substantive section which explains as to who is a member of unlawful assembly and Section 143 of Indian Penal Code is a punitive section for the same."
}
},
{
"from_name": "label",
"id": "7fff9613d602434ab69ced511d1f6793",
"to_name": "text",
"type": "labels",
"value": {
"end": 31092,
"labels": [
"ANALYSIS"
],
"start": 30974,
"text": "Similarly, Section 148 of Indian Penal Code is a punitive section for the offence of rioting armed with deadly weapon."
}
},
{
"from_name": "label",
"id": "2f93bc1704c048558b415323e0073ff7",
"to_name": "text",
"type": "labels",
"value": {
"end": 31309,
"labels": [
"ANALYSIS"
],
"start": 31093,
"text": "In the instant case, it is alleged that accused who were said to be more than five persons in - 30 - number, have formed an unlawful assembly and that they committed rioting duly armed with deadly weapons like knife."
}
},
{
"from_name": "label",
"id": "2ee4daa874324979982bd0493d364857",
"to_name": "text",
"type": "labels",
"value": {
"end": 31544,
"labels": [
"ANALYSIS"
],
"start": 31310,
"text": "Thus, when framing the charges, the Sessions Court without framing separate charges for distinct offences, it clubbed both and framed a single bald charge for Section 302 read with Section 149 of Indian Penal Code against the accused."
}
},
{
"from_name": "label",
"id": "d6644b9218664f43b7fc8456d62d7589",
"to_name": "text",
"type": "labels",
"value": {
"end": 31701,
"labels": [
"ARG_PETITIONER"
],
"start": 31544,
"text": "\n 33. The defence of the accused is that the deceased was a rowdy and he had quarreled with many persons, as such, in the incident, somebody has stabbed him."
}
},
{
"from_name": "label",
"id": "e19719a2849c4468a159e1ee21410cd6",
"to_name": "text",
"type": "labels",
"value": {
"end": 31901,
"labels": [
"ARG_PETITIONER"
],
"start": 31702,
"text": "Thus, the accused have not denied the incident and the nature of the death of the deceased as homicidal, but have only disputed their alleged involvement and participation in the commission of crime."
}
},
{
"from_name": "label",
"id": "c0a204db126d44088cb2d884b50ca3b4",
"to_name": "text",
"type": "labels",
"value": {
"end": 32041,
"labels": [
"ANALYSIS"
],
"start": 31903,
"text": "34. The above analysis of the evidence clearly establishes that the death of the deceased Dinesh on the night of 27.9.2010 is established."
}
},
{
"from_name": "label",
"id": "ed7f6ec0efcd4a9baeec4839baf619d3",
"to_name": "text",
"type": "labels",
"value": {
"end": 32096,
"labels": [
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],
"start": 32042,
"text": "It is also established that his death was a homicidal."
}
},
{
"from_name": "label",
"id": "c959d7ebadeb43b39f9c4ad4ea559288",
"to_name": "text",
"type": "labels",
"value": {
"end": 32319,
"labels": [
"ANALYSIS"
],
"start": 32097,
"text": "However, the evidence of PWs-1, 4 and 10, who were the material witnesses of the prosecution proved to be not safe to be relied upon and - 31 - that barring their evidence, the evidence of other witnesses are only hearsay."
}
},
{
"from_name": "label",
"id": "0647b13bea1d4f82899afc0a50f96685",
"to_name": "text",
"type": "labels",
"value": {
"end": 32392,
"labels": [
"RATIO"
],
"start": 32320,
"text": "Serious doubt which had erupted in the evidence of prosecution survives."
}
},
{
"from_name": "label",
"id": "fdc443bf22ed46f29f5a59edfe76db07",
"to_name": "text",
"type": "labels",
"value": {
"end": 32503,
"labels": [
"RATIO"
],
"start": 32393,
"text": "As such, the benefit of doubt is naturally required to be given to the present appellants/accused Nos.1 and 2."
}
},
{
"from_name": "label",
"id": "dd81b6b249dd4c1f9d37e123caaf4362",
"to_name": "text",
"type": "labels",
"value": {
"end": 32590,
"labels": [
"RATIO"
],
"start": 32504,
"text": "The Sessions Court has not appreciated the evidence before it in a proper perspective."
}
},
{
"from_name": "label",
"id": "66123e2717934ba88bc9c89fd1485251",
"to_name": "text",
"type": "labels",
"value": {
"end": 32742,
"labels": [
"RATIO"
],
"start": 32591,
"text": "It has wrongly believed the evidence of PWs- 1, 4 and 10 as trustworthy and concluded that the prosecution has proved its case beyond reasonable doubt."
}
},
{
"from_name": "label",
"id": "402c1884f2844044aa17b43011893002",
"to_name": "text",
"type": "labels",
"value": {
"end": 32831,
"labels": [
"RATIO"
],
"start": 32742,
"text": "\nThe said finding of the Sessions Court in our considered view is perverse and erroneous."
}
},
{
"from_name": "label",
"id": "561ce2e7e34b438599176609a5b348c3",
"to_name": "text",
"type": "labels",
"value": {
"end": 33008,
"labels": [
"RPC"
],
"start": 32832,
"text": "As such, the judgment of conviction and order on sentence under appeal passed against the present appellants/accused Nos.1 and 2 by the Sessions Court deserves to be set aside."
}
},
{
"from_name": "label",
"id": "9db646b51d964b72b92aa1888ddec809",
"to_name": "text",
"type": "labels",
"value": {
"end": 33097,
"labels": [
"RPC"
],
"start": 33009,
"text": "Accordingly, we proceed to pass the following order: ORDER Both the Appeals are allowed."
}
},
{
"from_name": "label",
"id": "06656b7c193644d6bc145ec4b4fa296f",
"to_name": "text",
"type": "labels",
"value": {
"end": 33260,
"labels": [
"RPC"
],
"start": 33098,
"text": "The judgment of conviction and order on sentence passed by the Sessions Judge, Fast Track Court-XVII, Bengaluru, in S.C.No.181/2011, dated 7.7.2012, is set aside."
}
},
{
"from_name": "label",
"id": "402067173c2b4c23947e9c6b09822c8c",
"to_name": "text",
"type": "labels",
"value": {
"end": 33469,
"labels": [
"RPC"
],
"start": 33261,
"text": "Accused - 32 - No.1 Sathish Babu @ Ayyappa, s/o Venkatamuni, residing at 7th Cross, Opposite to Mosque, Kaverinagar, Kodichikkanahalli Road, Hongasandra, Bengaluru (appellant in Criminal Appeal No.1147/2012}"
}
},
{
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"id": "f43389b62e9d47afa32427b9ee199abd",
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"end": 33769,
"labels": [
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"start": 33470,
"text": "and accused No.2 Jithendra @ Jitu, s/o Shekar, residing at No.168, Behind Muneshwara Temple, NGR Layout, Roopena Agrahara, Bengaluru (appellant in Criminal Appeal No.936/2012), are acquitted of the charges for alleged offence punishable under Section 302 read with Section 149 of Indian Penal Code."
}
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"end": 33972,
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"start": 33770,
"text": "The jail authorities are hereby directed to set them free forthwith, provided the accused Nos.1 and 2 are not required to be continued in judicial custody in any other case/s.\n Sd/- JUDGE Sd/- JUDGE bk/"
}
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}
] | 1,749 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n DATED THIS THE 9th DAY OF FEBRUARY, 2018\n\n PRESENT\n\n THE HON'BLE MR.JUSTICE RAVI MALIMATH\n AND\n\nTHE HON'BLE DR.JUSTICE H. B. PRABHAKARA SASTRY\n CRIMINAL APPEAL No.936 OF 2012\n\n C/w. CRIMINAL APPEAL No.1147 OF 2012\n\nIn Crl.A.936 of 2012 ...Appellant\n ...Respondent\nBETWEEN:\nJithendra @ Jithu\nS/o. Shekar,\nAged about 20 years,\nR/at No.168, Behind\nMuneshwara Temple,\nNGR Layout, Roopena Agrahara,\nBengaluru-560 068.\n\n(By Sri. Hashmath Pasha, Advocate)\n\nAND:\n\nState of Karnataka,\nBy Madiwala Police Station,\nBengaluru City-560 058.\n(Represented by Learned\nState Public Prosecutor)\n\n(By Sri. P.M. Nawaz, SPP-I)\n\n\n - 2 -\n\n This Criminal Appeal is filed under Section 374(2) of\nCr.P.C praying to set aside the judgment and order of\nconviction dated 07.07.2012 and sentence dated\n09.07.2012 passed by the P.O., FTC-XVII, Bangalore City in\nS.C.No.181 of 2011 convicting the appellant/accused for\nthe offence punishable under Section 302 r/w Section 149\nof IPC. The appellant/accused is sentenced to undergo life\nimprisonment and to pay fine of Rs.2,500/- and in default\nof fine, he shall undergo S.I. for a period of 6 months for\nthe offence punishable under Section 302 r/w Section 149\nof IPC.\n\nIn Crl.A.1147 of 2012 ..Appellant\n\nBETWEEN:\n\nSathish Babu @ Ayyappa\n(real name is Harish V.)\nS/o. Venkatamuni,\nAged about 21 years,\nR/at 7th Cross, Opp:Mosque,\nKaverinagar,\nKodichikkanahalli Road,\nHongasandra,\nBangalore.\n\n(By Sri. Hashmath Pasha, Advocate)\n\nAND\n\nState of Karnataka\nBy Madiwala Police Station,\nBengaluru City 560 068.\n\n(represented by Learned ..Respondent\nState Public Prosecutor)\n\n(By Sri. P.M. Nawaz, SPP-I)\n\n This Criminal Appeal is filed under Section 374(2) of\nCr.P.C praying to set aside the judgment and order of\n\n- 3 -\n\nconviction dated 07.07.2012 and sentence dated\n09.07.2012 passed by the P.O., FTC-XVII, Bangalore City in\nS.C.No.181 of 2011 convicting the appellant/accused\nNo.1 for the offence punishable under Section 302 r/w\nSection 149 of IPC. The appellant/accused No.1 is\nsentenced to undergo life imprisonment and to pay fine of\nRs.2,500/- and in default of fine, he shall undergo S.I. for\na period of 6 months for the offence punishable under\nSection 302 r/w Section 149 of IPC.\n\n These Criminal Appeals having been Heard and\nReserved for Judgment on 16.01.2018 and pronounced this\nday the Dr. H.B.PRABHAKARA SASTRY, J., delivered the\nfollowing:-\n\n JUDGMENT\n Being aggrieved by the judgment of conviction and order on sentence passed by the Presiding Officer, Fast Track Court-XVII, Bengaluru, (hence forth for brevity referred to as the `Sessions Court') in S.C. No.181 of 2011, dated 07.07.2012, convicting them for an offence punishable under Section 302 read with Section 149 of Indian Penal Code and sentencing them to undergo life imprisonment and to pay a fine of Rs.2,500/- each and in default of payment of fine, to undergo simple imprisonment for a period of six months, the accused Nos.1 and 2/appellants have filed these appeals.\n - 4 - 2. In their memorandum of appeals, the appellants have taken the contention that accused Nos.4, 5 and 7 have been acquitted in the matter and that there is no finding that accused Nos.1 and 2 had formed an unlawful assembly with other accused or any other person.\nTherefore, the conviction of accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 149 of Indian Penal Code, is illegal. The case of the prosecution is based on the part testimony of PWs-1, 4 and 10.\nHowever, their evidence lost any consistency, as such, they are not trustworthy. The narration of the incident as given by the prosecution witnesses does not tally with each other.\nNo Test Identification Parade was conducted to fix the identity of the appellants. With these, the appellants have prayed for allowing the appeals, by setting aside the judgment of conviction and order on sentence passed against them.\n 3. The respondent is being represented by State Public Prosecutor-I.\n - 5 - 4. Lower Court records were called for and the same are placed before us.\n 5. Since both these appeals have arisen out of a single judgment passed by the Sessions Court, both these appeals are taken as connected appeals and heard together.\n 6. Perused the material placed before us, including the memorandum of appeals, impugned judgment and the lower Court records.\n 7. The summary of the case of the prosecution is that on 26.9.2010, in the evening hours, in an orchestra arranged in connection with Ganesha festival, accused No.1-Ayyappa was doing some galata with some other persons. At that juncture, deceased-Dinesh intervened and pacified their quarrel and also gave a slap on accused No.1 and sent him back. Due to this developing ill-will and rivalry, the accused No.1, joined by other accused, with an intention to take revenge against the deceased Dinesh, on 27.9.2010, at about 7.45 p.m., went in a group to the place - 6 - at 6th Main, 7th Cross, Hongasandra, Balaji Layout, where the deceased Dinesh, joined by his friends, was removing the shed (pandal) and picked up quarrel with him and further assaulted and stabbed the deceased Dinesh with deadly weapon like knife on his chest and other parts of the body and thereby caused his death intentionally. Charge sheet was filed against the accused for the offence punishable under Section 302 read with Section 34 of Indian Penal Code. The Sessions Court framed the charges against accused Nos.1, 2, 4, 5 and 7 for the offence punishable under Section 302 read with Section 149 of Indian Penal Code. Accused No.3 was stated to be dead and case against accused Nos.6, 8 and 9 was split up. The Sessions Court by its judgment of conviction and order on sentence dated 9.7.2012, convicted accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 149 of Indian Penal Code and sentenced them to undergo life imprisonment and also to pay a fine of Rs.2,500/- each, and in default of payment of fine, to undergo simple imprisonment for a period of six months.\n Accused Nos.4, 5 and 7 were acquitted for the alleged - 7 - offences. It is against the said judgment of conviction and order on sentence, accused Nos.1 and 2 have preferred these appeals.\n 8. The appellants have not disputed that the death of deceased Dinesh was a homicidal death and that he died on 27.9.2010 at 7.45 p.m. due to the injuries inflicted upon him. The said aspect can be further confirmed by the evidence of the Medical Officer i.e., PW-11, coupled with evidence of PWs-1, 4 and 10. Besides the evidence of these witnesses, the Inquest mahazar at Ex.P-3 also shows that the panchas too have opined that the death of the deceased was a homicidal.\n 9. PW-11 Dr.Dilip Kumar, in his evidence has stated that he has conducted the autopsy over the dead body of Dinesh at the request of complainant police on 28.9.2010. He noticed the following injuries on the deceased : 1. Incised wound meag. 5 cms x 0.5 cms x subcutaneous deep obliquely placed present over the outer aspect of upper - 8 - part of left arm situated, 5 cms below the tip of shoulder.\n 2. Stab wound 1.5 cms x 0.5 cms x underneath tissue deep, obliquely placed over centre of chest situated 16 cms below the stemal notch, Margins are clean cut, Upper outer end is blunt, inner lower end is sharp. The wound shows tearing from inner lower end for a length of 5 cms towards left side of chest. On further dissection it is observed that weapon after cutting skin, subcutaneous tissue underlying muscle and slit the underlying bone, stemum at its middle. The wound is directed backward, downward and outward towards right, for a depth of 6 cms, blood effused around.\n 3. Stab wound 2 cms x 0.5 cms x underneath tissue deep vertically placed present on the left side of chest at mid clavicular line situated 18 cms below the mid clavicle.\n Margins are clean cut. Lower end is sharp.\n Upper end is blunt. On further dissection, it is observed that weapon after cutting the skin, subcutaneous tissue underlying muscles, has pierced between 6th and 7th - 9 - ribs, pericardium and cut the left ventricle on its surface for whole thickness. The wound is directed upwards, backward and inward for a depth of 10 cms, Blood effused around.\n 4. Stab wound 1.5 cms x 0.5 cms x muscle deep, Vertically placed, present over the front and lower abdomen on left side.\n Situated 16 cms away from umbilicus 6 cms below the costal margin. Margins are clean cut, upper end is sharp, lower end is blunt. The wound is directed upward backward inward for a depth of 6 cms. Blood effused around.\n 10. The said witness has also identified the Post Mortem Report said to have been issued by him at Ex.P-4.\nHe has also opined that the death of the deceased was due to shock and hemorrhage as a result of stab injuries sustained on the chest. He has further stated that death of the deceased could be caused by the use of weapon like MO.1. He has withstood the test of cross-examination.\nThus, the evidence of the doctor who conducted the autopsy and his report at Ex.P-4 and the Inquest - 10 - panchanama at Ex.P-3, coupled with the evidence of PWs-1, 4 and 10, who have stated that the deceased was assaulted and stabbed to death, clearly establishea that the death of Dinesh on the date 27.9.2010 was homicidal.\n 11. The next question would be as to whether the prosecution has proved beyond reasonable doubt that it is the present appellants/accused Nos.1 and 2 being the members of an unlawful assembly have committed the said murder of deceased-Dinesh on 27.9.2010? In that regard, the entire case of the prosecution is mainly based upon the evidence of PWs-1, 4 and 10, who are stated to be the eye witnesses to the incident. However, in order to prove the other circumstances pertaining to the case, the prosecution in total has examined 17 witnesses.\n 12. PW-1 Shravana Kumar, who is undisputedly the brother of the deceased-Dinesh and also the complainant in this case, has in his evidence stated that on the date 26.9.2010, there was an orchestra on the occasion of Ganesha festival. At that point of time, at about 9.30 p.m., - 11 - accused No.1 Ayyappa was found in that place, creating some disturbances (making galata with others). The same was objected to by deceased-Dinesh, the brother of PW-1, who pacified the galata and also gave a slap on accused No.1. On the next day evening i.e., on 27.9.2010, while himself (PW-1) along with his deceased brother Dinesh and their friends i.e., PW-4 Naveen Kumar and PW-10 Manjunath, were removing the shed (pandal) erected for the installation of Ganesh idol, the accused No.1, along with his associates, came to the said place at 7.45 p.m. and picked up a quarrel with deceased by questioning as to why he had bet him on the previous evening. Accused No.1 assaulted the deceased with hands and also instigated the other members of the assembly who were with him, not to spare the deceased alive. At that time, accused No.3 assaulted his brother with hands on his face. Accused No.2 and one Prabha and Jopadi attacked his brother. Accused No.2 stabbed his brother on the chest with knife, Prabha stabbed his brother on the stomach with knife, Jopadi stabbed his brother with knife on hands and all the assailants assaulted his brother with their legs also. After - 12 - assaulting him and on crying by the injured, all the accused ran away from the spot. He (PW-1) could not rescue his brother. Then he took his injured brother to Kavya Nursing Home, where the doctor advised him to take the injured to a bigger hospital. As such, he took the injured to Sagar Apollo Hospital, but his brother succumbed to the injuries on the way to the hospital. Thereafter, he went to the police station and lodged a complaint as per Ex.P-1. On the very night at 11.30 p.m., the police visited the place of offence and drew the spot mahazar (scene of offence panchanama) as per Ex.P-2. But, the respondent police could not seize any material objects in the place of incident.\n 13. It is also the evidence of PW-1 that on 28.9.2010, the police called him to the police station, where he identified accused Nos.1 to 5. On 8.10.2010, he was once again called to the police station where he identified accused No.7. The witness also stated that accused No.2 stabbed his brother with knife, accused No.1 bet on his cheek, accused No.3 assaulted his brother with his fist and - 13 - other accused also bet his brother, but he could not observe the activities of other accused. The witness also identified the knife at MO-1, stating that the same was in the hands of accused No.2. He was subjected to a detailed cross-examination from the accused side.\n 14. PW-2 Venkatesh, the father of the deceased though has stated that his son Dinesh was murdered, but he has made it clear that he is only a hearsay witness and does not know who has caused the murder of his son.\nSame was the evidence with respect of PW-3 Bhagyamma, the mother of the deceased.\n 15. PW-4 Naresh Kumar, was projected as an independent eye witness by the prosecution. In his evidence he has stated that on 27.9.2010, at 7.45 p.m.\nalong with the deceased, while he was engaged in removing the shed (pandal) erected for the purpose of Ganesh festival, PWs-1 and 10 were also with him. At that time, accused No.1 joined by three to four persons, came there and picked up quarrel with the deceased. Two of - 14 - them held the deceased and accused No.3 assaulted the deceased. Himself, joined by PWs-1 and 10, tried to rescue the deceased, but they could not. Further, one Prabha stabbed the deceased and other three to four persons assaulted the deceased with their legs. When the deceased started crying, all the accused ran away. Therefore, the deceased was taken to Kavya Nursing Home and then to Sagar Apollo Hospital, where the deceased was declared as dead on the way to the hospital. The witness also stated that in view of the previous night's incident at the orchestra, the accused No.1, joined by other accused, have committed the murder of deceased Dinesh. This witness also stated that he has identified accused Nos.1 to 5 and 7 in the police station. He stated that accused No.1 had an intention to finish the deceased. Accused No.1 and one Prabha stabbed the deceased with knife, accused No.7 and one Tirupati were holding the deceased at that time. Other accused were also beating the deceased. He has identified the knife at MO-1 stating that the same was in the hands of accused No.2. He was also subjected to a detailed cross- examination from the accused side.\n - 15 - 16. PW-5 Kumar, the maternal uncle of the deceased though has stated that the deceased was murdered, but admittedly he is a hearsay witness and says that he learnt about the incident.\n 17. PW-6 Prashant, has stated about the alleged incident dated 26.9.2010. He has stated that on the said day, in the evening, he too was one among the audience in the orchestra, wherein accused No.1 Ayyappa was doing some galata (disturbance/nuisance) and as such, deceased Dinesh slapped him. Though this witness has not stated that he has seen the next day's incident of alleged murder of Dinesh, but, stated that after hearing about the incident, he went to Sagar Apollo Hospital and saw the dead body of the deceased. Thus, his evidence would help in understanding the incident said to have occurred in the evening of 26.9.2010, where the deceased is said to have given a slap to accused No.1, but it does not help in knowing the details of the incident said to have occurred on 27.9.2010.\n - 16 - 18. PW-7 Babu, in his evidence though has stated about he visiting the Kavya Nursing Home based on an information given to him by CW-4 and thereafter, he visiting Fortis Hospital and coming to know about the death of the deceased, but his evidence is silent about the alleged incident dated 27.9.2010, where the deceased was said to have hacked to death.\n 19. PW-8 A.B.Krishna, has spoken about drawing of scene of offence panchanama (spot mahazar) in his presence as per Ex.P-2.\n 20. PW-9 Krishna Murthy, has stated about the police drawing inquest panchanama as per Ex.P-3 on the dead body of deceased Dinesh in his presence.\n 21. PW-10 Manjunath, was projected as another eye witness to the incident by the prosecution. He has stated in his evidence to the effect that on 27.9.2010, at about 7.45 p.m., while he was removing the shed erected for Ganesha idol, along with deceased, PW-1 and PW-4, the accused No.1, along with seven to eight persons, came there and - 17 - picked up quarrel with the deceased and bet him with hands. Accused No.3 and accused No.7 held the deceased and accused No.1 instigated others to finish the deceased, for which, one Prabha stabbed deceased with knife, accused Nos.4 and 5 assaulted the deceased with their legs.\nThereafter, all the accused ran away from the spot. He has identified accused Nos.1, 2, 4, 5 and 7 in the police station as the assailants. He was subjected to a thorough and searching cross-examination from the accused side.\n 22. PW-12 Syed Mushafa, Police Constable, has spoken to the effect that in this case, himself, joined by other Constables, at the instruction of his superiors, apprehended accused No.1 and accused Nos.2 to 5 and 7.\n 23. PW-13 is the Police Constable who brought the clothes of the deceased from the Victoria Hospital after conducting autopsy on the body of the deceased and producing it before the Investigating Officer.\n 24. PW-14 Raghu, has stated that recovery of the knife at MO-1 was made at the instance of accused No.2 in - 18 - his presence and that a panchanama as per Ex.P-7 was drawn in his presence. The witness has identified both the panchanama, as well as the weapon at MO-1. Denial suggestions made to him in his cross-examination was not admitted as true by him.\n 25. PW-15 Niyothi Mani, a Woman Police Constable, has stated that it was she who has carried the seized four articles to the Forensic Science Laboratory as per the order of her superiors and submitted the same at the laboratory.\n 26. PW-16 E.I.Sirajuddin, the Police Sub-Inspector of the complainant police station has stated that on 27.9.2010, at 10.15 p.m. CW-1 appeared before him and lodged a complaint as per Ex.P-1, which he registered in there station Crime No.1118/2010 and submitted FIR to the Court as per Ex.P-8.\n PW-17 Purushotham M.L., the Police Inspector has stated about the investigation said to have been done by him in this matter and filing the charge sheet against the accused after completion of the investigation. He has given - 19 - the details of his investigation, which includes visiting the scene of offence and drawing of scene of offence panchanama, recording of the statement of witnesses, drawing inquest panchanama and arresting the accused and recording voluntary statements said to have been given by them and also recovery of incriminating articles at the instance of the accused and based upon their alleged voluntary statement in the presence of panchas. He has also stated about sending the seized articles to Forensic Science Laboratory through his staff and getting the opinion of the doctor who conducted the autopsy and also getting the opinion from him about the relationship of the injuries found on the deceased with the weapon said to have been seized by him during the course of investigation. He was subjected to a detailed cross-examination, however, he adhered to his original version given in his examination-in- chief.\n 27. From the above details of the evidences of the witnesses, what can be seen is that it is only PWs-1, 4 and 10 who are very important and material witnesses in - 20 - this case. All the three of them have claimed themselves to be the eye witnesses to the alleged incident.\n 28. A reading of the evidence of PW-1, who is also the complainant, go to show that he has seen accused No.1 of scolding the deceased and also assaulting him once.\nHowever, he has not alleged any overt act against accused No.1 in his complaint lodged by him. In his complaint, he has only stated that accused No.1 shouted that Dinesh (deceased) should not be spared. The allegations of assaulting the deceased were all made against other accused by the witnesses. Therefore, the evidence of PW-1 to the effect that accused No.1 assaulted is an improvement.\n Secondly, PW-1 in his complaint at the first instance has stated that one Vasu @ Wale Vasu and one more person stabbed the deceased near his chest and abdomen with knives they were possessing. No where in his complaint he has identified as to who that `other person' was. On the other hand, he has stated in his evidence that it was accused No.2 and one Prabha stabbed the deceased - 21 - with the knives. No where he has stated as to how come he came to know about the name of accused No.2. Even the Investigating Officer also has not stated as to how PW-1 came to know the name of that `other person' as Jitendra (accused No.2). As such, in the absence of any evidence or material to show that the person shown as another person who stabbed the deceased was accused No.2 - Jitendra and that identity was subsequently came to the knowledge of PW-1, it cannot be taken that PW-1 knew accused No.2.\nThus, initially accusing one of the assailant without name and subsequently replacing that person with accused No.2 in his evidence amounts to an improvement made by PW-1.\nInterestingly, the very same witness who has stated in his complaint that among the two persons who are said to have stabbed his brother Dinesh, apart from unnamed person, the other was specifically named as Vasu @ Wale Vasu, who is accused No.3. However, in his evidence as PW-1, he introduced accused Prabha and accused Jopady as two other persons along with accused No.2 who stabbed the deceased with knives. Therefore, the evidence of PW-1 on the very important aspect of the alleged overt acts of the - 22 - accused clearly proves to be an improvement made by him in his deposition. As such, it is not safe to rely upon such improvement.\n 29. With respect to the evidence of PW.4-Naresh Kumar is concerned, as already observed, he also claims to be one of the eye witnesses to the alleged incident. The said witness in his examination-in-chief has stated about the presence of accused No.1 at the time of commission of offence and another assailant with the name Prabha. He has not named other accused, including accused No.2/appellant in Criminal Appeal No.936/2012. Even though he has stated in his examination-in-chief that accused No.1/appellant in Criminal Appeal No.1147/2012, stabbed with a knife, he has no where whispered about the alleged overt act of accused No.2 in his evidence.\nInterestingly, though he claims to be an eye witness to the alleged incident, in his examination-in-chief, he has made a statement that he came to know that on the previous day of the incident, in an orchestra, deceased had given a slap on accused No.1 Ayyappa and in vengeance to the same, Ayyappa and others have killed Dinesh. That is, had he - 23 - really been an eye witness to the incident, he would not have used the word \"came to know\". Further, he himself has stated that he has seen accused Jitendra, Ayyappa, Vasu, Ishwarappa, Madesh in the police station. Even according to the Investigating Officer, accused were shown to PW-4 in the police station, that means, no Test Identification Parade was conducted by the Investigating Officer. When PWs-1 and 4 have not named accused No.2 in their statement, nor they have disclosed about the identify of the said accused, by which, the accused could have been easily identified, in such a situation, it was required for the Investigating Officer to get the accused identified by these witnesses in a Test Identification Parade.\nOn the contrary, the Investigating Officer has directly shown the accused in this case to the witnesses and said to have got identified by them.\n The very same witness PW-4 in his cross- examination, has clearly stated that he came to know about the name of accused No.1-Ayyappa on the next date of the incident and that he did not know the names of three accused who had accompanied Ayyappa. This leads to an - 24 - inference that according to this witness there were only four accused at the time of incident i.e., Ayyappa plus three others. If that were to be the case, Section 149 of Indian Penal Code won't find place in the case. Further the very same PW-4 in his cross-examination has already stated that he has seen accused No.2 in the police station and prior to that, he had not seen him anywhere. This also leads to an inference that among the accused i.e., Ayyappa plus three others, accused No.2 was not there and the total number of the accused also were four in number. In this way, the evidence of PW-4 also does not inspire confidence to believe.\n 30. The third important alleged eye witness is PW-10. As observed above, in his examination-in-chief, he has stated that he was an eye witness to the incident and has seen the occurrence of the incident. He has given the details of the incident also. However, a reading of his evidence goes to show firstly that no where in his evidence, he has alleged any overt act against accused No.2.\n - 25 - Secondly, in his cross-examination, he has categorically stated that he has seen accused No.1-Ayyappa for the first time in the police station. He has also stated that at the time of incident, in that place, there were about 30 persons. He does not know whether accused No.1 was also there among those 30 persons. Thus, his clear statement that he has seen accused No.1-Ayyappa for the first time in the police station and his second statement that he does not know whether accused No.1 was also there among the people who were there in the place of the incident, not only introduces a serious doubt about the presence of accused No.1 at the place of incident, but also about the trustworthiness of the evidence of PW-10. The said witness, who in his examination-in-chief, has categorically alleged over act against accused No.1 showing that accused No.1 was present in the incident, has made a quite contradictory statement in his cross-examination by making the statement as observed above.\n Thirdly, this witness who has given the details of the incident, including the overt acts, in his cross-examination admitted a suggestion as true to the effect that he cannot - 26 - say as to who scolded whom and also who assaulted whom.\nThis further introduces a doubt in his evidence.\n Fourthly, the very same witness who claims to be an eye witness to the incident and speaks about the alleged act of stabbing the deceased in his presence, has, in his cross-examination, admitted a suggestion as true that till a telephone call came, he did not know as to how Dinesh died. This is very strange that a person who claims to be an eye witness for the alleged stabbing of deceased-Dinesh allegedly by the accused, in his cross-examination has stated that he does not know as to how the victim died.\nThis further augments the suspicion in his evidence.\n Lastly, this witness, who claims to be an eye witness and said to have given statement to the police to that effect taking the name of accused No.1, has in his cross-examination stated that he had been to police station only for once. Since Sharavana Kumar (PW-1) and Rajashekar shown him the accused as Ayyappa, he came to know about him. By stating so, he has further weakened his own statement made in his examination-in-chief. He - 27 - has shown his ignorance about identity of accused No.1- Ayyappa either at the time of the incident or immediately thereafter and it was the said other two persons showing the said accused and disclosing his identity in the police station. Therefore, the evidence of PW-10 is also not safe to rely upon.\n 31. Apart from the above, one more comparison between PWs-1, 4 and 10, who claims to be the eye witnesses, is also required to be made. The said comparison is with respect to their statement regarding the overt acts of accused Nos.1 and 2 (appellants herein) in the incident. According to PW-1, accused No.1 scolded the deceased and assaulted him once. He does not speak about accused No.1 stabbing the deceased with knife, whereas PW-4 in his evidence has stated that accused No.1 stabbed the deceased with a knife. PW-10 has not stated about accused No.1 stabbing the deceased, but he has only stated that accused No.1 assaulted the deceased. Thus, with respect to the alleged overt act of accused No.1 as against deceased is concerned, these three alleged eye witnesses have given different versions. Had they really - 28 - seen the incident, there ought to be uniformity in the evidence regarding overt acts of the accused. It is also because the alleged victim is only one person and alleged assailants are also not much in number, as such, each of the alleged eye witnesses was expected to see the incident clearly and their evidence was expected to come uniformly.\n Similarly, as observed above, PW-1 - the complainant who has not stated anything about the accused by name Prabha stabbing the deceased with knife, has only stated that one Vasu (accused No.3) and another person stabbing his brother Dinesh with knife. In his evidence, he has clothed that \"another person\" as accused No.2 - Jithendra.\nThus, according to him, two knives that were used in the commission of crime were by accused No.2 - Jithendra and accused No.3 - Vasu. On the contrary, PW-4 attributes use of knife by accused No.1 Ayyappa and the second knife by another accused by name Prabha. More interestingly, PW-10 has attributed the overt act of stabbing the deceased with the knife only to accused Prabha, but neither to accused No.1 Ayyappa nor to accused No.2 Jiithendra.\n - 29 - Therefore, on this very important aspect of description of the incident, more particularly, the overt acts by the accused also, there is major variations in the evidence of PWs-1, 4 and 10. For this reason also, the evidence of these three witnesses are also not safe to be relied upon as eye witnesses.\n 32. Apart from the above, it is also cannot be ignored of the fact that the Sessions Court which has convicted accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 149 of Indian Penal Code, has failed to frame a specific charge either for the offence under Section 142 and/or for the offence punishable under Section 148 of Indian Penal Code.\nSection 142 of Indian Penal Code is a substantive section which explains as to who is a member of unlawful assembly and Section 143 of Indian Penal Code is a punitive section for the same. Similarly, Section 148 of Indian Penal Code is a punitive section for the offence of rioting armed with deadly weapon. In the instant case, it is alleged that accused who were said to be more than five persons in - 30 - number, have formed an unlawful assembly and that they committed rioting duly armed with deadly weapons like knife. Thus, when framing the charges, the Sessions Court without framing separate charges for distinct offences, it clubbed both and framed a single bald charge for Section 302 read with Section 149 of Indian Penal Code against the accused.\n 33. The defence of the accused is that the deceased was a rowdy and he had quarreled with many persons, as such, in the incident, somebody has stabbed him. Thus, the accused have not denied the incident and the nature of the death of the deceased as homicidal, but have only disputed their alleged involvement and participation in the commission of crime.\n 34. The above analysis of the evidence clearly establishes that the death of the deceased Dinesh on the night of 27.9.2010 is established. It is also established that his death was a homicidal. However, the evidence of PWs-1, 4 and 10, who were the material witnesses of the prosecution proved to be not safe to be relied upon and - 31 - that barring their evidence, the evidence of other witnesses are only hearsay. Serious doubt which had erupted in the evidence of prosecution survives. As such, the benefit of doubt is naturally required to be given to the present appellants/accused Nos.1 and 2. The Sessions Court has not appreciated the evidence before it in a proper perspective. It has wrongly believed the evidence of PWs- 1, 4 and 10 as trustworthy and concluded that the prosecution has proved its case beyond reasonable doubt.\nThe said finding of the Sessions Court in our considered view is perverse and erroneous. As such, the judgment of conviction and order on sentence under appeal passed against the present appellants/accused Nos.1 and 2 by the Sessions Court deserves to be set aside. Accordingly, we proceed to pass the following order: ORDER Both the Appeals are allowed. The judgment of conviction and order on sentence passed by the Sessions Judge, Fast Track Court-XVII, Bengaluru, in S.C.No.181/2011, dated 7.7.2012, is set aside. Accused - 32 - No.1 Sathish Babu @ Ayyappa, s/o Venkatamuni, residing at 7th Cross, Opposite to Mosque, Kaverinagar, Kodichikkanahalli Road, Hongasandra, Bengaluru (appellant in Criminal Appeal No.1147/2012} and accused No.2 Jithendra @ Jitu, s/o Shekar, residing at No.168, Behind Muneshwara Temple, NGR Layout, Roopena Agrahara, Bengaluru (appellant in Criminal Appeal No.936/2012), are acquitted of the charges for alleged offence punishable under Section 302 read with Section 149 of Indian Penal Code. The jail authorities are hereby directed to set them free forthwith, provided the accused Nos.1 and 2 are not required to be continued in judicial custody in any other case/s.\n Sd/- JUDGE Sd/- JUDGE bk/ "
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"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n DATED THIS THE 13TH DAY OF OCTOBER, 2020\n BEFORE"
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"text": "\n\n THE HON'BLE MR.JUSTICE B.A.PATIL\n CRIMINAL PETITION No.4694/2020"
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"text": "\n\nSri.Khandya Praveen"
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"start": 271,
"text": "...Petitioner\n@ Praveen @ H.K. Praveen Kumar\nS/o Keshavamurthy\nAged about 39 years,\n"
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"text": "R/o Khandya"
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"text": "Village & Post\nChikkamagaluru Taluk"
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"text": " 577 101.\n\n"
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"text": "(By Sri.Hashmath Pasha, Sr.Counsel\nfor Sri.Suyog Herele E., Advocate)"
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"text": "\n\nAND:\n\nThe State of Karnataka,\nThrough Basavanahalli Police\nStation, Rep. by its State Public Prosecutor,\nHigh Court Building,\nHigh Court of Karnataka,\nBengaluru- 560 001."
}
},
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"start": 723,
"text": "...Respondent\n(By Sri.Mahesh Shetty, HCGP)\n\n This Criminal Petition is filed under Section 439 of\nCr.P.C praying to enlarge the petitioner on bail in Crime\nNo.132/2016 registered by Basavanahalli Police Station,\nChikkamagaluru, for the offence P/U/S. 364-A, 395, 386,\n342, 324, 506 and 120-B r/w Section 149 of IPC.\n\n "
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"labels": [
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"start": 1055,
"text": "This Criminal Petition having been heard and\nreserved on 08.10.2020 coming on for pronouncement of\nOrders `through Video Conference' this day, the Court\nmade the following:-\n\n O R D E R\n "
}
},
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"labels": [
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"start": 1284,
"text": "This petition has been filed by the petitioner-accused No.4 under Section 439 of Cr.P.C. praying to release him on regular bail in Crime No.132/2016 of Basavanahalli Police Station (S.C.No.34/2018 pending on the file of the Principal District and Sessions Judge, Chikkamagaluru), for the offences punishable under Sections 364A, 395, 386, 324, 342, 506 and 120B r/w Section 149 of Indian Penal Code."
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"text": "\n 2. I have heard the learned Senior Counsel Sri.Hashmath Pasha virtually for the petitioner-accused No.4 and also the learned High Court Government Pleader Sri.Mahesh Shetty for the respondent-State."
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},
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"text": "\n This case has been heard and reserved on 8.10.2020 for orders and today the order has been pronounced.\n 3."
}
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"start": 1992,
"text": "The gist of the complaint is that on 28.06.2016 at about 2.00 a.m., the complainant was about to open the gate of his house to park his vehicle."
}
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"text": "At that time, one Abhijith and six others came in a black Scorpio vehicle bearing Regn.No.KA-20/N-3659 and surrounded and thereafter kidnapped him in their car and he was also threatened not to shout and if he shouts, they will kill him."
}
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"text": "\nIt is further alleged that the persons who were there in the car were holding deadly weapons and they also forcibly took his car key and out of them two persons took away the car and they also switched off his mobile and thereafter started proceeding to Bengaluru and thereafter took him to a go-down at Bengaluru and tied him and wrongfully confined."
}
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"text": "It is further alleged that subsequently, one Naveen Shetty assaulted on the head and face of the complainant and threatened him that he should pay Rs.25 lakhs to a person whom they are going to name and if he is not going to pay, they will take away his life."
}
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"text": "When the complainant questioned him as to why he should pay so much of money, then Naveen Shetty told that he has cheated Rs.20 laksh to Nataraj Kalmane Chit Fund in a cricket betting and as such he has to pay the said amount."
}
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"text": "\nIt is further alleged that thereafter they shifted the complainant to another place, where accused No.4 petitioner along with Naveen Shetty came and they demanded Rs.10 lakhs."
}
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"text": "They also gave a mobile handset and he telephoned to one Shiva to arrange for Rs.10 lakhs."
}
},
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"text": "\nBut the said Shiva told that he has got only Rs.2,00,000/- and the complainant told about his kidnap and requested him to arrange for money and the said Shiva agreed to arrange Rs.10 lakhs with his friends and thereafter he telephoned to Shiva and told him to pay the same to one Pavan."
}
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"text": "He further told that the said Naveen Shetty has to be paid the said amount."
}
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"text": "He also gave a mobile number 9480805120, but the said mobile number belongs to Dy.S.P. and he told to bring the said amount near the Police Quarters where he handed over Rs.10 lakhs at about 10.15 p.m."
}
},
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"end": 4100,
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],
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"text": "On the basis of the complaint, a case was registered."
}
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"labels": [
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],
"start": 4102,
"text": "4. It is the contention of the learned Senior Counsel that, the petitioner-accused approached this Court for grant of bail in Criminal Petition No.6790/2018 on 22.10.2018, but the same came to be dismissed and subsequently he has also filed a Criminal Petition No.9456/2018."
}
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"text": "This Court by order dated 11.2.2019 rejected the bail application."
}
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"text": "Being aggrieved by the said order, the petitioner-accused No.4 approached the Hon'ble Apex Court in Special Leave to Appeal (Criminal No.2688/2019) and the same came to be dismissed on 2.4.2019."
}
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"text": "Subsequently, another Criminal Petition No.1945/2020 was filed before this Court."
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"text": "This Court by order dated 26.5.2020 dismissed the petition, however liberty has been given to the petitioner-accused to move this Court for bail after examination of the complainant."
}
},
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"text": "\nPetitioner-accused No.4 being aggrieved by the said order, approached the Hon'ble Supreme Court of India in Special Leave to appeal (Criminal No.3211/2020)."
}
},
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"text": "The same came to be dismissed on 31.7.2020 by confirming the order of this Court."
}
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],
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"text": "But however, the Hon'ble Apex Court directed the trial Court to examine the complainant within two months from that date with a compliance report."
}
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"value": {
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"labels": [
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],
"start": 5290,
"text": "It is his further submission that in pursuance of the direction issued by the Hon'ble Apex Court, complainant has been got examined before the trial Court as PW1 on 28.8.2020 and on subsequent dates."
}
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"labels": [
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"start": 5490,
"text": "Now his examination-in-chief and cross-examination has been completed."
}
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"text": "In pursuance of the order of this Court and the Hon'ble Apex Court, now he is reviving the right to bail."
}
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"text": "It is his further submission that the transactions which have been taken place is in between the other accused persons and complainant."
}
},
{
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"text": "No serious overt acts have been alleged as against petitioner- accused No.4."
}
},
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"start": 5880,
"text": "It is his further submission that already the other accused persons have been granted bail and on the ground of parity, the petitioner-accused is also entitled to be released on bail."
}
},
{
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"start": 6064,
"text": "It is his further submission that this petitioner-accused has not approached directly the complainant and asked about the ransom to be paid to him, on the contrary the amount has been paid to the accused No.5 the police official who is now deceased."
}
},
{
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"labels": [
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"text": "It is his further submission that in the evidence of PW1 there is nothing to suggest that it is the petitioner-accused demanded any amount from him or from his family members and he has been detained."
}
},
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"labels": [
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],
"start": 6515,
"text": "It is his further submission that in the evidence of PW1 nowhere he has expressed that the petitioner-accused was having an intention to take away the life of the complainant victim."
}
},
{
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"id": "ec34b6eb82fc4776af87fce68bad4fd3",
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"labels": [
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"start": 6698,
"text": "In that light, it is his submissions that the provisions of Section 364A of IPC will not attract to the facts of the case on hand."
}
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"labels": [
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],
"start": 6829,
"text": "It is his further submission that in order to attract the provisions of Section 364A of IPC, a person must be abducted and he should be detained and there must be threat to cause the death or such bodily injuries or by virtue of conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or causes hurt or death to such person to compel him to do some act or to pay a ransom."
}
},
{
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"labels": [
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],
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"text": "But on perusal of the evidence of the complainant- PW1, nowhere he has deposed that there was threat to the life of the complainant."
}
},
{
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"labels": [
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],
"start": 7372,
"text": "It is his further submission that, on perusal of the evidence at the most without admitting the act of the petitioner-accused No.4, may attract the provisions of Sections 384 or 392 of IPC, which are not considered to be serious in the eye of law."
}
},
{
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"text": "It is his further submission that already the complainant has been got examined before the trial Court and fully cross examined."
}
},
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"text": "Under such circumstances, there is no question of tampering of the evidence of the complainant."
}
},
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"labels": [
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"text": "It is further submitted that more than two years he is in custody, the trial may take some more time."
}
},
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],
"start": 7947,
"text": "It is further submitted that while dealing with bail application, delay in concluding the trial has to be taken into consideration."
}
},
{
"from_name": "label",
"id": "3cfe0ddd2a864a399edb32b56cdc8ff6",
"to_name": "text",
"type": "labels",
"value": {
"end": 8216,
"labels": [
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],
"start": 8079,
"text": "In order to support his said contention he relied on the decision in the case of State of Kerala Vs. Raneef reported in (2011) 1 SCC 784."
}
},
{
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"id": "da5f2bbfdcee4109bf05ecaf0bdf9be7",
"to_name": "text",
"type": "labels",
"value": {
"end": 8317,
"labels": [
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],
"start": 8217,
"text": "It is further submitted that now pandemic disease Covid-19 is there to keep him in judicial custody."
}
},
{
"from_name": "label",
"id": "e65a8911afd641c1b712a85aef42cdf4",
"to_name": "text",
"type": "labels",
"value": {
"end": 8423,
"labels": [
"ARG_PETITIONER"
],
"start": 8318,
"text": "He is ready to abide by the conditions that may be imposed by this Court and ready to offer the sureties."
}
},
{
"from_name": "label",
"id": "625d4b6dbd19478d88fec8109b98d00d",
"to_name": "text",
"type": "labels",
"value": {
"end": 8524,
"labels": [
"ARG_PETITIONER"
],
"start": 8424,
"text": "On these grounds he prayed to allow the petition and to release the petitioner-accused No.4 on bail."
}
},
{
"from_name": "label",
"id": "c558186ecb07499ebba71dbe3ffdb8c0",
"to_name": "text",
"type": "labels",
"value": {
"end": 8980,
"labels": [
"ARG_RESPONDENT"
],
"start": 8524,
"text": "\n 5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that earlier this Court has granted anticipatory bail to the petitioner- accused No.4, but the same has been challenged before the Hon'ble Apex Court and the bail granted has been cancelled by holding that there is a prima facie material as against the petitioner-accused having involved in a serious offence which is punishable with death or imprisonment for life."
}
},
{
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"id": "e3297d09e45545a7b492e5a71460e418",
"to_name": "text",
"type": "labels",
"value": {
"end": 9305,
"labels": [
"ARG_RESPONDENT"
],
"start": 8981,
"text": "It is his further submission that the charge sheet material clearly goes to show that petitioner-accused No.4 is the main accused and at his instance the complainant was kidnapped and amount of Rs.10 Lakhs has been paid to Dy.S.P. accused No.5 and the other accused persons have also monitored and kidnapped the complainant."
}
},
{
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"id": "cd285724048f41638ffcedcbfe877682",
"to_name": "text",
"type": "labels",
"value": {
"end": 9412,
"labels": [
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],
"start": 9305,
"text": "\nThere is prima facie material as against the petitioner- accused for having involved in the alleged crime."
}
},
{
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"id": "ddc9b299136445879d1fbd08e18c6b80",
"to_name": "text",
"type": "labels",
"value": {
"end": 9603,
"labels": [
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],
"start": 9413,
"text": "It is his further submission that if the petitioner-accused is enlarged on bail, he may tamper with the remaining prosecution evidence, he may abscond and may not be available for the trial."
}
},
{
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"id": "2e4bd79e723245faa69f20ff809a700f",
"to_name": "text",
"type": "labels",
"value": {
"end": 9655,
"labels": [
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],
"start": 9604,
"text": "On these grounds he prayed to dismiss the petition."
}
},
{
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"id": "0bf8c65dc1f94f9490951fc9b7230487",
"to_name": "text",
"type": "labels",
"value": {
"end": 9799,
"labels": [
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],
"start": 9655,
"text": "\n 6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records."
}
},
{
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"id": "bed347004e5f4af282242472cb89e50c",
"to_name": "text",
"type": "labels",
"value": {
"end": 9956,
"labels": [
"ANALYSIS"
],
"start": 9799,
"text": "\n 7. It is not in dispute that the petitioner-accused No.4 has approached this Court three times in Criminal Petition Nos.6790/2018, 9456/2018 and 1945/2020."
}
},
{
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"id": "8bfaeeea8e4148e2b8812b6bf848640e",
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"value": {
"end": 10028,
"labels": [
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],
"start": 9957,
"text": "This Court after considering the case on merits dismissed the petition."
}
},
{
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"id": "01c0080c61d24ee8abfc3ac970bb97f4",
"to_name": "text",
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"end": 10173,
"labels": [
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],
"start": 10028,
"text": "\nEven it is not dispute that the accused has also approached the Hon'ble Apex Court in Special Leave to Appeals and the same were also dismissed."
}
},
{
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"id": "b231c54233f34fe89ae61775f74998b4",
"to_name": "text",
"type": "labels",
"value": {
"end": 10446,
"labels": [
"ARG_PETITIONER"
],
"start": 10174,
"text": "It is the specific contention of the learned Senior counsel for the petitioner- accused that this Court while dismissing the Criminal Petition No.1945/2020 dated 26.5.2020 has given a liberty to the petitioner-accused to move for bail after examination of the complainant."
}
},
{
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"id": "815a7109c50c4fccb8ea08e49b62b489",
"to_name": "text",
"type": "labels",
"value": {
"end": 10770,
"labels": [
"ARG_PETITIONER"
],
"start": 10447,
"text": "It is his further submission that the said order has been challenged before the Hon'ble Apex Court in Special Leave to Appeal (Criminal No.3211/2020) and the said appeal also came to be dismissed on 31.7.2020 and while dismissing, it directed the trial Court to examine the complainant within two months from the said date."
}
},
{
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"id": "50f79fc012b847f7b487d61464d3b370",
"to_name": "text",
"type": "labels",
"value": {
"end": 10992,
"labels": [
"ANALYSIS"
],
"start": 10770,
"text": "\n 8. As per the direction of the Hon'ble Apex Court, on 28.8.2020, 1.9.2020, 3.9.2020, 4.9.2020, 5.9.2020 and subsequently on 10.9.2020 the complainant-PW1 has been fully examined and cross examined before the trial Court."
}
},
{
"from_name": "label",
"id": "54161a2793a54f22b8eeb78b2430beaa",
"to_name": "text",
"type": "labels",
"value": {
"end": 11263,
"labels": [
"ARG_PETITIONER"
],
"start": 10994,
"text": "9. It is the specific contention of the learned Senior Counsel that in order to attract the provisions of Section 364A of IPC, the conduct of the accused person must be reasonably apprehended that the person so detained may be put to death or threatened to cause death."
}
},
{
"from_name": "label",
"id": "b35b85ddfa484a19816d125d1ea512a1",
"to_name": "text",
"type": "labels",
"value": {
"end": 11366,
"labels": [
"ANALYSIS"
],
"start": 11264,
"text": "But the evidence of PW1 does not speak anything with regard to the ingredients of Section 364A of IPC."
}
},
{
"from_name": "label",
"id": "796c7276439545319828e94c8ae71b0f",
"to_name": "text",
"type": "labels",
"value": {
"end": 11481,
"labels": [
"STA"
],
"start": 11367,
"text": "For the purpose of brevity, I quote Section 364A of IPC, which reads as under: \"364A. Kidnapping for ransom, etc.-"
}
},
{
"from_name": "label",
"id": "e86480899115482fa9fd0dac2d4cc59d",
"to_name": "text",
"type": "labels",
"value": {
"end": 12060,
"labels": [
"STA"
],
"start": 11482,
"text": "Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter- governmental organization or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.\"\n 10."
}
},
{
"from_name": "label",
"id": "d81523f7773c415fbadc7854c801d08d",
"to_name": "text",
"type": "labels",
"value": {
"end": 12265,
"labels": [
"ANALYSIS"
],
"start": 12061,
"text": "On close reading of said Section it indicates that, there must be life threat, or such bodily injuries likely to cause death has to be made to the detenue who has been kidnapped for the purpose of ransom."
}
},
{
"from_name": "label",
"id": "6eecbe5d47d64e55a5b5794260c7b425",
"to_name": "text",
"type": "labels",
"value": {
"end": 12485,
"labels": [
"ANALYSIS"
],
"start": 12266,
"text": "I am of the considered opinion that whether the ingredients of Section 364A of IPC are going to be attracted or not, is a matter which has to be considered and appreciated only at the time of final disposal of the case."
}
},
{
"from_name": "label",
"id": "bd8e9d5da3b44c6fa54bf0d99288f59e",
"to_name": "text",
"type": "labels",
"value": {
"end": 12672,
"labels": [
"ANALYSIS"
],
"start": 12486,
"text": "At this pre-matured stage when still trial is going on before the trial Court, if I express my opinion, then the case of the prosecution as well as the accused is going to be prejudiced."
}
},
{
"from_name": "label",
"id": "7da00a00fc8946af9c5ee3e5cac0b84e",
"to_name": "text",
"type": "labels",
"value": {
"end": 12747,
"labels": [
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],
"start": 12673,
"text": "In that light, I am not inclined to express any opinion on the said point."
}
},
{
"from_name": "label",
"id": "10f89e7c35474a84adc004a267304cef",
"to_name": "text",
"type": "labels",
"value": {
"end": 12958,
"labels": [
"ANALYSIS"
],
"start": 12747,
"text": "\n 11. In pursuance of the liberty granted by this Court in Criminal Petition No.1945/2020 and as per the observation made by the Hon'ble Apex Court, after examination of PW1, the present petition has been filed."
}
},
{
"from_name": "label",
"id": "51fe5b8c350b416cb701da5a1fa12573",
"to_name": "text",
"type": "labels",
"value": {
"end": 13101,
"labels": [
"ANALYSIS"
],
"start": 12958,
"text": "\nAlready the remaining accused persons have been enlarged on bail and since more than two years the petitioner- accused is languishing in jail."
}
},
{
"from_name": "label",
"id": "196bef8536e942429e15f1f826511c7c",
"to_name": "text",
"type": "labels",
"value": {
"end": 13237,
"labels": [
"ANALYSIS"
],
"start": 13102,
"text": "Whether he has committed the alleged offence or not, is a matter which has to be considered and appreciated during the course of trial."
}
},
{
"from_name": "label",
"id": "94a9f65acee54332a5863ce3bdbc96fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 13434,
"labels": [
"ANALYSIS"
],
"start": 13237,
"text": "\n Under such circumstances, when already PW1 has been examined and cross-examined fully, there is no threat to the complainant to tamper with his evidence or threaten him while giving the evidence."
}
},
{
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"id": "9de5b21f1eaa4accae8c6a56f8c15424",
"to_name": "text",
"type": "labels",
"value": {
"end": 13453,
"labels": [
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],
"start": 13435,
"text": "Be that as it may."
}
},
{
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"id": "ffdc5442ef344d52b4912c0355332c2a",
"to_name": "text",
"type": "labels",
"value": {
"end": 13501,
"labels": [
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],
"start": 13454,
"text": "This case has been registered in the year 2016."
}
},
{
"from_name": "label",
"id": "ef109a321d504875a9e9dec4a3741c64",
"to_name": "text",
"type": "labels",
"value": {
"end": 13546,
"labels": [
"ANALYSIS"
],
"start": 13502,
"text": "Petitioner-accused is in custody since 2018."
}
},
{
"from_name": "label",
"id": "4f742f2c8f4b4333bbbd423aea63fc0f",
"to_name": "text",
"type": "labels",
"value": {
"end": 13662,
"labels": [
"ANALYSIS"
],
"start": 13547,
"text": "On perusal of evidence of PW1, it has taken a long time, many more witnesses are to be examined by the trial Court."
}
},
{
"from_name": "label",
"id": "d80033f596c0426d93d2890b1616ce70",
"to_name": "text",
"type": "labels",
"value": {
"end": 13775,
"labels": [
"ANALYSIS"
],
"start": 13663,
"text": "It is trite law that while considering the bail application, delay in concluding the trial has to be considered."
}
},
{
"from_name": "label",
"id": "ef2082832ad445f78f2c9fbd93dd01dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 13880,
"labels": [
"ANALYSIS"
],
"start": 13776,
"text": "This proposition of law has been laid down by the Hon'ble Apex Court in the case of Raneef quoted supra."
}
},
{
"from_name": "label",
"id": "ff6c101efc00446d8c6b9f2cebd2adca",
"to_name": "text",
"type": "labels",
"value": {
"end": 13932,
"labels": [
"ANALYSIS"
],
"start": 13881,
"text": "At paragraph 15 it has been observed as under: \"15."
}
},
{
"from_name": "label",
"id": "a147c3b4d686460aad9cfa7f65afd405",
"to_name": "text",
"type": "labels",
"value": {
"end": 14084,
"labels": [
"ANALYSIS"
],
"start": 13933,
"text": "In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial."
}
},
{
"from_name": "label",
"id": "13552427551347ae915aba429bb83547",
"to_name": "text",
"type": "labels",
"value": {
"end": 14240,
"labels": [
"ANALYSIS"
],
"start": 14085,
"text": "Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody?"
}
},
{
"from_name": "label",
"id": "473de17b204c47658a63d97d5ab0645d",
"to_name": "text",
"type": "labels",
"value": {
"end": 14379,
"labels": [
"ANALYSIS"
],
"start": 14241,
"text": "Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case?"
}
},
{
"from_name": "label",
"id": "f95e6ec91fa9446383b279f613b2abfc",
"to_name": "text",
"type": "labels",
"value": {
"end": 14502,
"labels": [
"ANALYSIS"
],
"start": 14380,
"text": "Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail."
}
},
{
"from_name": "label",
"id": "79a151f959ba4c0fbbc4011750fadd75",
"to_name": "text",
"type": "labels",
"value": {
"end": 14673,
"labels": [
"RATIO"
],
"start": 14503,
"text": "In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail."
}
},
{
"from_name": "label",
"id": "06ce6cd98b304094800a2b578ad9af8f",
"to_name": "text",
"type": "labels",
"value": {
"end": 14850,
"labels": [
"ANALYSIS"
],
"start": 14674,
"text": "A doctor incarcerated for a long period may end up like Dr.Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille.\""
}
},
{
"from_name": "label",
"id": "7a68ac79825d4097bc52a884178a8ce1",
"to_name": "text",
"type": "labels",
"value": {
"end": 15179,
"labels": [
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],
"start": 14850,
"text": "\n 12. Keeping in view the above said aspects and as already other accused persons under similar facts and circumstances have been released on bail, I am of the considered opinion that, by imposing some stringent conditions if the petitioner-accused No.4 is ordered to be released on bail, it is going to meet the ends of justice."
}
},
{
"from_name": "label",
"id": "8437f30d41644fc38a18aa9867f59231",
"to_name": "text",
"type": "labels",
"value": {
"end": 15225,
"labels": [
"RPC"
],
"start": 15179,
"text": "\n 13. In that light, this petition is allowed."
}
},
{
"from_name": "label",
"id": "f14a4b86932e43bd9289072e4c24ccd2",
"to_name": "text",
"type": "labels",
"value": {
"end": 15773,
"labels": [
"RPC"
],
"start": 15226,
"text": "The petitioner-accused No.4 is ordered to be released on bail in Crime No.132/2016 of Basavanahalli Police Station (S.C.No.34/2018 pending on the file of the Principal District and Sessions Judge, Chikkamagaluru), for the offences punishable under Sections 364A, 395, 386, 324, 342, 506 and 120B r/w Section 149 of Indian Penal Code, subject to the following conditions: i) Petitioner-accused shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) with two sureties for the likesum to the satisfaction of the trial Court."
}
},
{
"from_name": "label",
"id": "780598e2c4f44ae6864774b2807490e4",
"to_name": "text",
"type": "labels",
"value": {
"end": 15852,
"labels": [
"RPC"
],
"start": 15773,
"text": "\n ii) He shall not tamper with the prosecution evidence directly or indirectly."
}
},
{
"from_name": "label",
"id": "c1ea0bc82baf47b298452eface7b229b",
"to_name": "text",
"type": "labels",
"value": {
"end": 15933,
"labels": [
"RPC"
],
"start": 15852,
"text": "\n iii) He shall not leave the jurisdiction of the Court without prior permission."
}
},
{
"from_name": "label",
"id": "207444c0a17346d085128d1d38e85f44",
"to_name": "text",
"type": "labels",
"value": {
"end": 16086,
"labels": [
"RPC"
],
"start": 15933,
"text": "\n iv) He shall mark his attendance before the jurisdictional police once in fifteen days in between 10.00 a.m. and 5.00 p.m. till the trial is completed."
}
},
{
"from_name": "label",
"id": "d8f5f85e41ac4f908429cba7dc8d2524",
"to_name": "text",
"type": "labels",
"value": {
"end": 16152,
"labels": [
"RPC"
],
"start": 16086,
"text": "\n v) He shall not threaten the complainant or man-handled anybody."
}
},
{
"from_name": "label",
"id": "322f9742a8fa4cb3be60e68ba1cc3965",
"to_name": "text",
"type": "labels",
"value": {
"end": 16218,
"labels": [
"RPC"
],
"start": 16152,
"text": "\n vi) He shall not indulge in similar type of criminal activities."
}
},
{
"from_name": "label",
"id": "0b07d28fa05949d89cf5ccc2ed6001be",
"to_name": "text",
"type": "labels",
"value": {
"end": 16379,
"labels": [
"RPC"
],
"start": 16219,
"text": "If he again indulged in similar type of criminal activities, threaten the witness or man handle in any manner, the trial Court is at liberty to cancel the bail."
}
},
{
"from_name": "label",
"id": "43b1f38392cc4f4eb2b590396c4cb9d6",
"to_name": "text",
"type": "labels",
"value": {
"end": 16495,
"labels": [
"RPC"
],
"start": 16379,
"text": "\n vii) He shall surrender the Passport and Visa, if he is having before the trial Court till the trial is concluded."
}
},
{
"from_name": "label",
"id": "735aa4b799e64ef99947c3340ce0d0e9",
"to_name": "text",
"type": "labels",
"value": {
"end": 16513,
"labels": [
"NONE"
],
"start": 16495,
"text": "\n Sd/- JUDGE *AP/-"
}
}
]
}
] | 1,717 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n DATED THIS THE 13TH DAY OF OCTOBER, 2020\n BEFORE\n\n THE HON'BLE MR.JUSTICE B.A.PATIL\n CRIMINAL PETITION No.4694/2020\n\nBETWEEN:\n\nSri.Khandya Praveen ...Petitioner\n@ Praveen @ H.K. Praveen Kumar\nS/o Keshavamurthy\nAged about 39 years,\nR/o Khandya Village & Post\nChikkamagaluru Taluk 577 101.\n\n(By Sri.Hashmath Pasha, Sr.Counsel\nfor Sri.Suyog Herele E., Advocate)\n\nAND:\n\nThe State of Karnataka,\nThrough Basavanahalli Police\nStation, Rep. by its State Public Prosecutor,\nHigh Court Building,\nHigh Court of Karnataka,\nBengaluru- 560 001.\n\n ...Respondent\n(By Sri.Mahesh Shetty, HCGP)\n\n This Criminal Petition is filed under Section 439 of\nCr.P.C praying to enlarge the petitioner on bail in Crime\nNo.132/2016 registered by Basavanahalli Police Station,\nChikkamagaluru, for the offence P/U/S. 364-A, 395, 386,\n342, 324, 506 and 120-B r/w Section 149 of IPC.\n\n This Criminal Petition having been heard and\nreserved on 08.10.2020 coming on for pronouncement of\nOrders `through Video Conference' this day, the Court\nmade the following:-\n\n O R D E R\n This petition has been filed by the petitioner-accused No.4 under Section 439 of Cr.P.C. praying to release him on regular bail in Crime No.132/2016 of Basavanahalli Police Station (S.C.No.34/2018 pending on the file of the Principal District and Sessions Judge, Chikkamagaluru), for the offences punishable under Sections 364A, 395, 386, 324, 342, 506 and 120B r/w Section 149 of Indian Penal Code.\n 2. I have heard the learned Senior Counsel Sri.Hashmath Pasha virtually for the petitioner-accused No.4 and also the learned High Court Government Pleader Sri.Mahesh Shetty for the respondent-State.\n This case has been heard and reserved on 8.10.2020 for orders and today the order has been pronounced.\n 3. The gist of the complaint is that on 28.06.2016 at about 2.00 a.m., the complainant was about to open the gate of his house to park his vehicle. At that time, one Abhijith and six others came in a black Scorpio vehicle bearing Regn.No.KA-20/N-3659 and surrounded and thereafter kidnapped him in their car and he was also threatened not to shout and if he shouts, they will kill him.\nIt is further alleged that the persons who were there in the car were holding deadly weapons and they also forcibly took his car key and out of them two persons took away the car and they also switched off his mobile and thereafter started proceeding to Bengaluru and thereafter took him to a go-down at Bengaluru and tied him and wrongfully confined. It is further alleged that subsequently, one Naveen Shetty assaulted on the head and face of the complainant and threatened him that he should pay Rs.25 lakhs to a person whom they are going to name and if he is not going to pay, they will take away his life. When the complainant questioned him as to why he should pay so much of money, then Naveen Shetty told that he has cheated Rs.20 laksh to Nataraj Kalmane Chit Fund in a cricket betting and as such he has to pay the said amount.\nIt is further alleged that thereafter they shifted the complainant to another place, where accused No.4 petitioner along with Naveen Shetty came and they demanded Rs.10 lakhs. They also gave a mobile handset and he telephoned to one Shiva to arrange for Rs.10 lakhs.\nBut the said Shiva told that he has got only Rs.2,00,000/- and the complainant told about his kidnap and requested him to arrange for money and the said Shiva agreed to arrange Rs.10 lakhs with his friends and thereafter he telephoned to Shiva and told him to pay the same to one Pavan. He further told that the said Naveen Shetty has to be paid the said amount. He also gave a mobile number 9480805120, but the said mobile number belongs to Dy.S.P. and he told to bring the said amount near the Police Quarters where he handed over Rs.10 lakhs at about 10.15 p.m. On the basis of the complaint, a case was registered.\n 4. It is the contention of the learned Senior Counsel that, the petitioner-accused approached this Court for grant of bail in Criminal Petition No.6790/2018 on 22.10.2018, but the same came to be dismissed and subsequently he has also filed a Criminal Petition No.9456/2018. This Court by order dated 11.2.2019 rejected the bail application. Being aggrieved by the said order, the petitioner-accused No.4 approached the Hon'ble Apex Court in Special Leave to Appeal (Criminal No.2688/2019) and the same came to be dismissed on 2.4.2019. Subsequently, another Criminal Petition No.1945/2020 was filed before this Court. This Court by order dated 26.5.2020 dismissed the petition, however liberty has been given to the petitioner-accused to move this Court for bail after examination of the complainant.\nPetitioner-accused No.4 being aggrieved by the said order, approached the Hon'ble Supreme Court of India in Special Leave to appeal (Criminal No.3211/2020). The same came to be dismissed on 31.7.2020 by confirming the order of this Court. But however, the Hon'ble Apex Court directed the trial Court to examine the complainant within two months from that date with a compliance report. It is his further submission that in pursuance of the direction issued by the Hon'ble Apex Court, complainant has been got examined before the trial Court as PW1 on 28.8.2020 and on subsequent dates. Now his examination-in-chief and cross-examination has been completed. In pursuance of the order of this Court and the Hon'ble Apex Court, now he is reviving the right to bail. It is his further submission that the transactions which have been taken place is in between the other accused persons and complainant. No serious overt acts have been alleged as against petitioner- accused No.4. It is his further submission that already the other accused persons have been granted bail and on the ground of parity, the petitioner-accused is also entitled to be released on bail. It is his further submission that this petitioner-accused has not approached directly the complainant and asked about the ransom to be paid to him, on the contrary the amount has been paid to the accused No.5 the police official who is now deceased. It is his further submission that in the evidence of PW1 there is nothing to suggest that it is the petitioner-accused demanded any amount from him or from his family members and he has been detained. It is his further submission that in the evidence of PW1 nowhere he has expressed that the petitioner-accused was having an intention to take away the life of the complainant victim. In that light, it is his submissions that the provisions of Section 364A of IPC will not attract to the facts of the case on hand. It is his further submission that in order to attract the provisions of Section 364A of IPC, a person must be abducted and he should be detained and there must be threat to cause the death or such bodily injuries or by virtue of conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or causes hurt or death to such person to compel him to do some act or to pay a ransom. But on perusal of the evidence of the complainant- PW1, nowhere he has deposed that there was threat to the life of the complainant. It is his further submission that, on perusal of the evidence at the most without admitting the act of the petitioner-accused No.4, may attract the provisions of Sections 384 or 392 of IPC, which are not considered to be serious in the eye of law. It is his further submission that already the complainant has been got examined before the trial Court and fully cross examined. Under such circumstances, there is no question of tampering of the evidence of the complainant. It is further submitted that more than two years he is in custody, the trial may take some more time. It is further submitted that while dealing with bail application, delay in concluding the trial has to be taken into consideration. In order to support his said contention he relied on the decision in the case of State of Kerala Vs. Raneef reported in (2011) 1 SCC 784. It is further submitted that now pandemic disease Covid-19 is there to keep him in judicial custody. He is ready to abide by the conditions that may be imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition and to release the petitioner-accused No.4 on bail.\n 5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that earlier this Court has granted anticipatory bail to the petitioner- accused No.4, but the same has been challenged before the Hon'ble Apex Court and the bail granted has been cancelled by holding that there is a prima facie material as against the petitioner-accused having involved in a serious offence which is punishable with death or imprisonment for life. It is his further submission that the charge sheet material clearly goes to show that petitioner-accused No.4 is the main accused and at his instance the complainant was kidnapped and amount of Rs.10 Lakhs has been paid to Dy.S.P. accused No.5 and the other accused persons have also monitored and kidnapped the complainant.\nThere is prima facie material as against the petitioner- accused for having involved in the alleged crime. It is his further submission that if the petitioner-accused is enlarged on bail, he may tamper with the remaining prosecution evidence, he may abscond and may not be available for the trial. On these grounds he prayed to dismiss the petition.\n 6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.\n 7. It is not in dispute that the petitioner-accused No.4 has approached this Court three times in Criminal Petition Nos.6790/2018, 9456/2018 and 1945/2020. This Court after considering the case on merits dismissed the petition.\nEven it is not dispute that the accused has also approached the Hon'ble Apex Court in Special Leave to Appeals and the same were also dismissed. It is the specific contention of the learned Senior counsel for the petitioner- accused that this Court while dismissing the Criminal Petition No.1945/2020 dated 26.5.2020 has given a liberty to the petitioner-accused to move for bail after examination of the complainant. It is his further submission that the said order has been challenged before the Hon'ble Apex Court in Special Leave to Appeal (Criminal No.3211/2020) and the said appeal also came to be dismissed on 31.7.2020 and while dismissing, it directed the trial Court to examine the complainant within two months from the said date.\n 8. As per the direction of the Hon'ble Apex Court, on 28.8.2020, 1.9.2020, 3.9.2020, 4.9.2020, 5.9.2020 and subsequently on 10.9.2020 the complainant-PW1 has been fully examined and cross examined before the trial Court.\n 9. It is the specific contention of the learned Senior Counsel that in order to attract the provisions of Section 364A of IPC, the conduct of the accused person must be reasonably apprehended that the person so detained may be put to death or threatened to cause death. But the evidence of PW1 does not speak anything with regard to the ingredients of Section 364A of IPC. For the purpose of brevity, I quote Section 364A of IPC, which reads as under: \"364A. Kidnapping for ransom, etc.- Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter- governmental organization or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.\"\n 10. On close reading of said Section it indicates that, there must be life threat, or such bodily injuries likely to cause death has to be made to the detenue who has been kidnapped for the purpose of ransom. I am of the considered opinion that whether the ingredients of Section 364A of IPC are going to be attracted or not, is a matter which has to be considered and appreciated only at the time of final disposal of the case. At this pre-matured stage when still trial is going on before the trial Court, if I express my opinion, then the case of the prosecution as well as the accused is going to be prejudiced. In that light, I am not inclined to express any opinion on the said point.\n 11. In pursuance of the liberty granted by this Court in Criminal Petition No.1945/2020 and as per the observation made by the Hon'ble Apex Court, after examination of PW1, the present petition has been filed.\nAlready the remaining accused persons have been enlarged on bail and since more than two years the petitioner- accused is languishing in jail. Whether he has committed the alleged offence or not, is a matter which has to be considered and appreciated during the course of trial.\n Under such circumstances, when already PW1 has been examined and cross-examined fully, there is no threat to the complainant to tamper with his evidence or threaten him while giving the evidence. Be that as it may. This case has been registered in the year 2016. Petitioner-accused is in custody since 2018. On perusal of evidence of PW1, it has taken a long time, many more witnesses are to be examined by the trial Court. It is trite law that while considering the bail application, delay in concluding the trial has to be considered. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Raneef quoted supra. At paragraph 15 it has been observed as under: \"15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr.Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille.\"\n 12. Keeping in view the above said aspects and as already other accused persons under similar facts and circumstances have been released on bail, I am of the considered opinion that, by imposing some stringent conditions if the petitioner-accused No.4 is ordered to be released on bail, it is going to meet the ends of justice.\n 13. In that light, this petition is allowed. The petitioner-accused No.4 is ordered to be released on bail in Crime No.132/2016 of Basavanahalli Police Station (S.C.No.34/2018 pending on the file of the Principal District and Sessions Judge, Chikkamagaluru), for the offences punishable under Sections 364A, 395, 386, 324, 342, 506 and 120B r/w Section 149 of Indian Penal Code, subject to the following conditions: i) Petitioner-accused shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) with two sureties for the likesum to the satisfaction of the trial Court.\n ii) He shall not tamper with the prosecution evidence directly or indirectly.\n iii) He shall not leave the jurisdiction of the Court without prior permission.\n iv) He shall mark his attendance before the jurisdictional police once in fifteen days in between 10.00 a.m. and 5.00 p.m. till the trial is completed.\n v) He shall not threaten the complainant or man-handled anybody.\n vi) He shall not indulge in similar type of criminal activities. If he again indulged in similar type of criminal activities, threaten the witness or man handle in any manner, the trial Court is at liberty to cancel the bail.\n vii) He shall surrender the Passport and Visa, if he is having before the trial Court till the trial is concluded.\n Sd/- JUDGE *AP/- "
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"text": "COMMISSIONER OF INCOME TAX ....."
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"text": "Through Mr. J.R. Goel, Advocate\n\n versus\n\n\n M"
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"text": "/S KWALITY ICE CREAM "
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"text": "Rahul Yadavi, Advocates"
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"text": "In this reference, relevant to the Assessment Year 1976-77, the following question of law has been referred for our opinion under Section 256 (1) of the Income Tax Act, 1961('Act'): “"
}
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{
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"value": {
"end": 1496,
"labels": [
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],
"start": 1106,
"text": "Whether on the facts and in the circumstances of the case, the liability to pay the sales tax of Rs.4,24,029/- made up of Rs.3,22,482/- being refund of sales tax received by the assessee during the relevant year and Rs.1,01,507/- being provision for sales tax made in the accounting period relevant to the assessment year 1976-77, was chargeable to tax to the total income of the assessee?”"
}
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{
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],
"start": 1497,
"text": "In so far as the first part of the question is concerned, whether the liability to pay sales tax of Rs.3,22,482/- being refund of sales tax received by the assessee during the relevant year was chargeable to tax, learned counsel for the parties are agreed that in view of the decision in Polyflex (India) Pvt. Limited v. Commissioner of Income Tax [2002] 257 ITR 343 (SC) this part of the question is required to be answered in the affirmative, that is in favour of the Revenue and against the assessee."
}
},
{
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"to_name": null,
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"value": {
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"labels": [
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],
"start": 2000,
"text": "\n The second part of the question is whether the liability to pay sales tax on the amount of Rs.1,01,507/- being provision for sales tax made in the accounting period relevant to the assessment year 1976-77 is chargeable to tax."
}
},
{
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"labels": [
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],
"start": 2229,
"text": "The admitted position is that the assessee is following the mercantile system of accounting."
}
},
{
"from_name": null,
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"to_name": null,
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"labels": [
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],
"start": 2322,
"text": "Initially there was some dispute whether the ice cream sold by the assessee was exigible to tax or not."
}
},
{
"from_name": null,
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"to_name": null,
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"labels": [
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],
"start": 2426,
"text": "This Court in its judgment dated 27th March, 1974 held that the ice cream manufactured and sold by the assessee was not exigible to sales tax."
}
},
{
"from_name": null,
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"to_name": null,
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"value": {
"end": 2713,
"labels": [
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],
"start": 2570,
"text": "The Revenue was not satisfied with the decision rendered by this Court and preferred an appeal which remained pending before the Supreme Court."
}
},
{
"from_name": null,
"id": "fbd6feca61a84514a948543e719466fd",
"to_name": null,
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"value": {
"end": 2785,
"labels": [
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],
"start": 2714,
"text": "Ultimately it was decided by the Supreme Court on 6 th September, 1995."
}
},
{
"from_name": null,
"id": "174556f4da4b422188fe3938c3102385",
"to_name": null,
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"value": {
"end": 2959,
"labels": [
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],
"start": 2786,
"text": "It is common ground that the decision of the Supreme Court affirmed the decision of this Court that the assessee was not liable to pay sales tax on the ice cream sold by it."
}
},
{
"from_name": null,
"id": "a3bcc03635384fec871a47d433c99ac0",
"to_name": null,
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"value": {
"end": 3168,
"labels": [
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],
"start": 2961,
"text": "During the pendency of the the appeal preferred by the Revenue in the Supreme Court, the assessee made a provision of Rs.1,01,507/- for sales tax in the previous year relevant to the assessment year 1976-77."
}
},
{
"from_name": null,
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"to_name": null,
"type": null,
"value": {
"end": 3446,
"labels": [
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],
"start": 3169,
"text": "According to learned counsel for the Revenue, this provision was not required to be made since this Court had declared that no sales tax was payable on the sale of ice cream and further the Supreme Court also did not grant a stay of the operation of the judgment of this Court."
}
},
{
"from_name": null,
"id": "43b38e74c56e4d92b53534ff286f61ba",
"to_name": null,
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"value": {
"end": 3667,
"labels": [
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],
"start": 3447,
"text": "Learned counsel for the Revenue submitted that since the assessee did not in fact pay any sales tax on the sale of ice cream in the relevant previous year, there was no question of any provision for sales tax being made."
}
},
{
"from_name": null,
"id": "d0b8bad5bc23435e9f1e5e8da1881759",
"to_name": null,
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"labels": [
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],
"start": 3667,
"text": "\n Learned counsel for the Assessee has drawn our attention to the decision of the Supreme Court in Kedarnath Jute Manufacturing Co.\n Limited v. Commissioner of Income Tax [1971] 82 ITR 363 wherein it has been held that the moment a dealer makes either a purchase or sale of any commodity subject to sales tax, the obligation to pay the tax arises."
}
},
{
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"to_name": null,
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"value": {
"end": 4189,
"labels": [
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],
"start": 4014,
"text": "\n Although that liability could not be enforced till quantification was effected by assessment proceedings, the liability for payment of tax was independent of the assessment."
}
},
{
"from_name": null,
"id": "9ed2648120854df4ab14f1275e2ca6c6",
"to_name": null,
"type": null,
"value": {
"end": 4395,
"labels": [
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],
"start": 4190,
"text": "Since the assessee was following the mercantile system of accounting, it was entitled to make a provision for and therefore deduct from the profits and gains of its business the liability to pay sales tax."
}
},
{
"from_name": null,
"id": "4437d6ab935743e9a83ccadfa1ec1324",
"to_name": null,
"type": null,
"value": {
"end": 4486,
"labels": [
"ANALYSIS"
],
"start": 4396,
"text": "The liability did not cease to be a liability merely because the assessee had disputed it."
}
},
{
"from_name": null,
"id": "dc1e010d3cca424d904b1bd47c4a8451",
"to_name": null,
"type": null,
"value": {
"end": 4634,
"labels": [
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],
"start": 4487,
"text": "So long as the appeal filed by the Revenue was pending before the Supreme Court, the liability had accrued in so far as the assessee was concerned."
}
},
{
"from_name": null,
"id": "27b1242b3b9c48e3bce60cdc844a051b",
"to_name": null,
"type": null,
"value": {
"end": 4908,
"labels": [
"PRE_RELIED"
],
"start": 4634,
"text": "\n The Allahabad High Court in J.K. Synthetics Limited v. O.S. Bajpai, ITO, Central Circle-V, Kanpur [1976] 105 ITR 864 has held that an assessee is entitled to claim deduction in respect of the liability of excise duty for which it had made a provision in its account books."
}
},
{
"from_name": null,
"id": "d5529b8be8e34474aeb987595eacbe95",
"to_name": null,
"type": null,
"value": {
"end": 5022,
"labels": [
"PRE_RELIED"
],
"start": 4909,
"text": "This view was upheld by the Hon'ble Supreme Court in Union of India v. J.K. Synthetics Limited [1993] 199 ITR 14."
}
},
{
"from_name": null,
"id": "dc329ed086ee42fea0ebd4c604640a33",
"to_name": null,
"type": null,
"value": {
"end": 5261,
"labels": [
"PRE_RELIED"
],
"start": 5023,
"text": "The Supreme Court held that since under Section 41 of the Act the liability to tax would depend on the outcome of the appeal, there would be no prejudice to the department if the provision is made and the assessment is made on that basis."
}
},
{
"from_name": null,
"id": "da82d65ed97149ce8d30c63d54a83a58",
"to_name": null,
"type": null,
"value": {
"end": 5699,
"labels": [
"STA"
],
"start": 5263,
"text": "Section 41 (1) Act envisages that where the assessee has obtained some benefit in respect of a trading liability by way of remission or cessation thereof, the amount obtained by the assessee or the value of benefit accruing to him shall be deemed to be profits and gains of business for that year in which such remission or cessation occurs and would accordingly be chargeable to income tax as the income of that relevant previous year."
}
},
{
"from_name": null,
"id": "c46f618bb54143288565a0b6d05487af",
"to_name": null,
"type": null,
"value": {
"end": 5768,
"labels": [
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],
"start": 5700,
"text": "There would be no loss of tax in so far as the Revenue is concerned."
}
},
{
"from_name": null,
"id": "802dd8e544784121a7b8db437cc886c5",
"to_name": null,
"type": null,
"value": {
"end": 5891,
"labels": [
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],
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"text": "It can now tax in the Assessment Year 1996-97, the entire amount provided for by the assessee towards sales tax liability."
}
},
{
"from_name": null,
"id": "89af24832c63431ea8412ce5360c9ecb",
"to_name": null,
"type": null,
"value": {
"end": 6034,
"labels": [
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],
"start": 5891,
"text": "\n Under the circumstances, we answer the second part of the question in the negative that is in favour of the assessee and against the revenue."
}
},
{
"from_name": null,
"id": "0e6edb6547704dfba7fd6576c56ee98f",
"to_name": null,
"type": null,
"value": {
"end": 6077,
"labels": [
"RPC"
],
"start": 6034,
"text": "\n The reference is disposed of accordingly."
}
},
{
"from_name": null,
"id": "caed35912780466c9ee56591872fbba6",
"to_name": null,
"type": null,
"value": {
"end": 6133,
"labels": [
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],
"start": 6077,
"text": "\n MADAN B. LOKUR,J S.MURALIDHAR, J SEPTEMBER 03, 2007 rk"
}
}
]
}
] | 4,159 | {
"text": "* IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n Date of decision : September 3, 2007\nR-1\n+ ITR 553 of 1983\n\n\n COMMISSIONER OF INCOME TAX ..... Petitioner\n Through Mr. J.R. Goel, Advocate\n\n versus\n\n\n M/S KWALITY ICE CREAM ..... Respondent\n Through Mr. Ajay Vohra with Ms. Kavita Jha and Mr.\n Rahul Yadavi, Advocates\n\n\n CORAM:\n HON'BLE MR. JUSTICE MADAN B. LOKUR\n HON'BLE DR. JUSTICE S.MURALIDHAR\n\n 1. Whether Reporters of local papers may be allowed\n 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?\nYES\n\n ORDER\n In this reference, relevant to the Assessment Year 1976-77, the following question of law has been referred for our opinion under Section 256 (1) of the Income Tax Act, 1961('Act'): “Whether on the facts and in the circumstances of the case, the liability to pay the sales tax of Rs.4,24,029/- made up of Rs.3,22,482/- being refund of sales tax received by the assessee during the relevant year and Rs.1,01,507/- being provision for sales tax made in the accounting period relevant to the assessment year 1976-77, was chargeable to tax to the total income of the assessee?” In so far as the first part of the question is concerned, whether the liability to pay sales tax of Rs.3,22,482/- being refund of sales tax received by the assessee during the relevant year was chargeable to tax, learned counsel for the parties are agreed that in view of the decision in Polyflex (India) Pvt. Limited v. Commissioner of Income Tax [2002] 257 ITR 343 (SC) this part of the question is required to be answered in the affirmative, that is in favour of the Revenue and against the assessee.\n The second part of the question is whether the liability to pay sales tax on the amount of Rs.1,01,507/- being provision for sales tax made in the accounting period relevant to the assessment year 1976-77 is chargeable to tax. The admitted position is that the assessee is following the mercantile system of accounting. Initially there was some dispute whether the ice cream sold by the assessee was exigible to tax or not. This Court in its judgment dated 27th March, 1974 held that the ice cream manufactured and sold by the assessee was not exigible to sales tax.\n The Revenue was not satisfied with the decision rendered by this Court and preferred an appeal which remained pending before the Supreme Court. Ultimately it was decided by the Supreme Court on 6 th September, 1995. It is common ground that the decision of the Supreme Court affirmed the decision of this Court that the assessee was not liable to pay sales tax on the ice cream sold by it.\n During the pendency of the the appeal preferred by the Revenue in the Supreme Court, the assessee made a provision of Rs.1,01,507/- for sales tax in the previous year relevant to the assessment year 1976-77. According to learned counsel for the Revenue, this provision was not required to be made since this Court had declared that no sales tax was payable on the sale of ice cream and further the Supreme Court also did not grant a stay of the operation of the judgment of this Court. Learned counsel for the Revenue submitted that since the assessee did not in fact pay any sales tax on the sale of ice cream in the relevant previous year, there was no question of any provision for sales tax being made.\n Learned counsel for the Assessee has drawn our attention to the decision of the Supreme Court in Kedarnath Jute Manufacturing Co.\n Limited v. Commissioner of Income Tax [1971] 82 ITR 363 wherein it has been held that the moment a dealer makes either a purchase or sale of any commodity subject to sales tax, the obligation to pay the tax arises.\n Although that liability could not be enforced till quantification was effected by assessment proceedings, the liability for payment of tax was independent of the assessment. Since the assessee was following the mercantile system of accounting, it was entitled to make a provision for and therefore deduct from the profits and gains of its business the liability to pay sales tax. The liability did not cease to be a liability merely because the assessee had disputed it. So long as the appeal filed by the Revenue was pending before the Supreme Court, the liability had accrued in so far as the assessee was concerned.\n The Allahabad High Court in J.K. Synthetics Limited v. O.S. Bajpai, ITO, Central Circle-V, Kanpur [1976] 105 ITR 864 has held that an assessee is entitled to claim deduction in respect of the liability of excise duty for which it had made a provision in its account books. This view was upheld by the Hon'ble Supreme Court in Union of India v. J.K. Synthetics Limited [1993] 199 ITR 14. The Supreme Court held that since under Section 41 of the Act the liability to tax would depend on the outcome of the appeal, there would be no prejudice to the department if the provision is made and the assessment is made on that basis.\n Section 41 (1) Act envisages that where the assessee has obtained some benefit in respect of a trading liability by way of remission or cessation thereof, the amount obtained by the assessee or the value of benefit accruing to him shall be deemed to be profits and gains of business for that year in which such remission or cessation occurs and would accordingly be chargeable to income tax as the income of that relevant previous year. There would be no loss of tax in so far as the Revenue is concerned. It can now tax in the Assessment Year 1996-97, the entire amount provided for by the assessee towards sales tax liability.\n Under the circumstances, we answer the second part of the question in the negative that is in favour of the assessee and against the revenue.\n The reference is disposed of accordingly.\n MADAN B. LOKUR,J S.MURALIDHAR, J SEPTEMBER 03, 2007 rk "
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"start": 613,
"text": "Both the appellants, Babu Lal and Devi Lal are aggrieved by the affirmation of their conviction under Section 302 and other with the aid of Section 120 B of the Indian Penal Code and sentenced to life imprisonment under the impugned Judgment dated 30th January, 2009, seek this Court's intervention.\n 2."
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"text": "Brief facts of the case, as per prosecution, postincident, are that on 8th February 1999 at 7.15 p.m. complainant Vijay Singh (PW2) submitted a written report (Exhibit P1) at Police Station, Nimbahera, informing that he and his cousin brother Dharam Chand(deceased) were living with their families in separate houses in village Binota."
}
},
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"start": 1253,
"text": "In the evening of 7th February, 1999 at 6.00 p.m., daughter of the deceased Dharam Chand informed him on telephone that her father, who had gone to Bhagwanpura on Motor Cycle, had not returned."
}
},
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"labels": [
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"start": 1447,
"text": "The complainant, along with other neighbours, went to search deceased Dharam Chand on 8th February, 1999 and at village Bhagwanpura, outside the godown of brother deceased Dharam Chand, found his motorcycle but his whereabouts were not made known."
}
},
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"labels": [
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"start": 1695,
"text": "On his written complaint, a missing person report (Exh. P75) was lodged."
}
},
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"start": 1768,
"text": "The Investigating Officer, in the course of enquiry, made from Shambhu Singh (PW3), revealed that on 7th February, 1999, accused Babu Lal had hired his jeep."
}
},
{
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"labels": [
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"start": 1926,
"text": "Babu Lal and his labourers Logar and Bagdiram carried drum which contained wheat."
}
},
{
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"labels": [
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"start": 2008,
"text": "The drum was alighted from the jeep on way near field of Logar, making Shambhu Singh to sit at the house of Logar and on excuse of responding to call of nature, Babu Lal, Logar and Bagdiram got away for about 1.30 hours."
}
},
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"labels": [
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],
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"text": "When they came back, the drum was not there."
}
},
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"labels": [
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],
"start": 2274,
"text": "On inquiry by Shambhu Singh (PW3), Babu Lal told that Logar and Bagdiram shall deliver it afterwards."
}
},
{
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"end": 2598,
"labels": [
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],
"start": 2376,
"text": "On further inquiry, it revealed that on 5th February, 1999, hot altercations had taken place between Babu Lal and deceased Dharam Chand for some money transactions and on carrying such drum, Babu Lal caused some suspicion."
}
},
{
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"value": {
"end": 2686,
"labels": [
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],
"start": 2599,
"text": "During the course of search, it was found that from a dry well, bad odour was emitting."
}
},
{
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"value": {
"end": 2808,
"labels": [
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],
"start": 2687,
"text": "When freshly cut branches and leaves of the teak tree were removed, the dead body of the deceased Dharam Chand was found."
}
},
{
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"end": 2923,
"labels": [
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],
"start": 2809,
"text": "On the basis of Exhibit P73, formal FIR came to be registered on 11th February, 1999 at Police Station, Nimbahera."
}
},
{
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"end": 3079,
"labels": [
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],
"start": 2923,
"text": "\n 3. After the investigation, chargesheet was filed against the four accused persons namely, Babu Lal, Devi Lal, Keshu Ram @ Panchiya Meena and Logar Rawat."
}
},
{
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"value": {
"end": 3105,
"labels": [
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],
"start": 3080,
"text": "All the four faced trial."
}
},
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"value": {
"end": 3430,
"labels": [
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],
"start": 3106,
"text": "The learned trial Judge by its impugned judgment acquitted the accused persons Keshu Ram @ Panchiya Meena and Logar Rawat holding accused Babu Lal guilty for the offence under Section 302 read with Section 34 and 120B IPC and appellant Devi Lal for the offence of Section 120B IPC, of hatching a conspiracy to commit murder."
}
},
{
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"end": 3611,
"labels": [
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],
"start": 3430,
"text": "\n 4. The appeals preferred by both the appellants before the High Court came to be dismissed affirming their conviction and sentence vide judgment impugned dated 30th January, 2009."
}
},
{
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"end": 3729,
"labels": [
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],
"start": 3613,
"text": "5. Before adverting to the rival submissions, it would be apposite to first take analysis of the evidence on record."
}
},
{
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"end": 3798,
"labels": [
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],
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"text": "\n 6. The case of the prosecution is based on circumstantial evidence."
}
},
{
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"end": 4183,
"labels": [
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],
"start": 3799,
"text": "The circumstances which lead the trial Judge to held the appellants guilty under Section 302 and 120B IPC and confirmed by the High Court is primarily based on the evidence of complainant Vijay Singh (PW2), Vandna (PW5) and Uma Devi (PW10), daughter and wife of the deceased and also relied upon the extra judicial confession made by the coaccused Babu Lal to Shambhu Singh (PW3).\n 7."
}
},
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"end": 4414,
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"start": 4184,
"text": "At the outset, it may be noticed that neither in the initial complaint on which the missing report was lodged nor at the stage after inquiry, when the FIR came to be registered (Exh. P 73), the name of appellant Devi Lal surfaced."
}
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"text": "Even in the statement of Vandna(PW5), while recording statement under Section 164 CrPC, (Exh. D5), no such reference was made of any conspiracy having been hatched by Devi Lal, the accused appellant."
}
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"text": "In the testimony of PW5 Vandna and PW10 Uma Devi, it was deposed that accused Devi Lal came to the house on 5th February 1999 and wanted to purchase the half portion of Bada from the deceased Dharam Chand for a sum of Rs.\n10,000/."
}
},
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"text": "Devi Lal threatened the deceased to sell his Bada which he refused."
}
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"start": 4915,
"text": "8. As regards appellant Babu Lal, it was deposed by Vandna (PW5) and Uma Devi (PW10) that he was known to their family as Babu Lal used to take money from the deceased and to return the same."
}
},
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"start": 5107,
"text": "Deceased Dharam Chand lended Rs. 50,000/ to accused Babu Lal, which had been reduced into writing in the ledger book."
}
},
{
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"start": 5225,
"text": "When deceased Dharam Chand went to take money from Babu Lal, he refused to return the same and started quarrelling."
}
},
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],
"start": 5341,
"text": "The deceased had informed this to Vandna (PW5) and Uma Devi (PW10)."
}
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{
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"end": 5491,
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"start": 5409,
"text": "The money as demanded by the deceased led to suspicion of the commission of crime."
}
},
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],
"start": 5492,
"text": "But both the witnesses Vandna (PW 5) and Uma Devi (PW10), in their crossexamination, stated that they did not know when the accused Babu Lal had borrowed money from the deceased."
}
},
{
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"start": 5670,
"text": "\n 9. It is true that an extra judicial confession is used against its maker but as a matter of caution, advisable for the Court to look for a corroboration with the other evidence on record."
}
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"end": 6177,
"labels": [
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],
"start": 5861,
"text": "In Gopal Sah v. State of Bihar 2008(17) SCC 128, this court while dealing with extra judicial confession held that extra judicial confession is, on the face of it, a weak evidence and the Court is reluctant, in the absence of a chain of cogent circumstances, to rely on it, for the purpose of recording a conviction."
}
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"end": 6291,
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"start": 6178,
"text": "In the instant case, it may be noticed that there are no additional cogent circumstances on record to rely on it."
}
},
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"start": 6292,
"text": "At the same time, Shambhu Singh (PW3), while recording his statement under Section 164 CrPC, has not made such statement of extra judicial confession(Exh. D5) made by accused Babu Lal."
}
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{
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"text": "In addition, there are no other circumstances on record to support it."
}
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"start": 6547,
"text": "\n 10. The other connecting evidence on which reliance was placed by the prosecution was that accused Babu Lal had given information of handing over the torn leaf of Bahi obtaining signatures of deceased Dharam Chand to accused Devi Lal."
}
},
{
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"end": 6880,
"labels": [
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],
"start": 6783,
"text": "\nAccused Devi Lal got the said leaf recovered by giving information to the Investigating Officer."
}
},
{
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"end": 7144,
"labels": [
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],
"start": 6881,
"text": "There is no justifiable explanation available which came on record as to how the torn leaf came in the possession of Devi Lal as the said paper was torn from the Bahi(Article 27) which was recovered from the accused Babu Lal, which has been matched by FSL report."
}
},
{
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"id": "399382112c474826b098e662e659fb45",
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"value": {
"end": 7337,
"labels": [
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],
"start": 7145,
"text": "There was also no justification which came forward from the prosecution as to how the torn Bahi paper of Babu Lal containing the signatures of deceased Dharam Chand with black ink came to him."
}
},
{
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"id": "01d05e4b28b0462da395de2f2395c33e",
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"value": {
"end": 7467,
"labels": [
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],
"start": 7338,
"text": "Pen was recovered on the information of accused Babu Lal, by which handwriting found on the leaf recovered from accused Devi Lal."
}
},
{
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"id": "374c238a93de40a08571d836b9c13507",
"to_name": "text",
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"value": {
"end": 7655,
"labels": [
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],
"start": 7467,
"text": "\nThe further circumstance was recovery of Rs. 11,200/ on the information given by the accused Babu Lal but from where this money had come to Babu Lal, was not clarified by the prosecution."
}
},
{
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"id": "2d776ea2bd6a4ebd84019d4855948288",
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"end": 7946,
"labels": [
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],
"start": 7656,
"text": "The other circumstances completing the chain was that accused Devi Lal had not given any clarification with regard to the fact that by which information Devi Lal had come to Babu Lal which had been indicated in the diary recovered from accused Devi Lal under Section 27 of the Evidence Act."
}
},
{
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"value": {
"end": 8409,
"labels": [
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],
"start": 7947,
"text": "Accused Babu Lal was arrested on 13th February, 1999 and accused Devi Lal was arrested on 15th February, 1999 for the alleged incident of 7th February, 1999 which came to knowledge of informant on 8th February, 1999 and report was lodged on 11th February, 1999 and the alleged recovery of torn page of Bahi, which obtained signature of the deceased along with the diary of 1999(Exhibit P 79), under Section 27 of the Evidence Act was made on 24th February, 1999."
}
},
{
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"id": "8666b33ca21a41088a9f171eb1186ede",
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"end": 8448,
"labels": [
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],
"start": 8410,
"text": "The Bahi, as such, was never produced."
}
},
{
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"id": "f361fe3547b64619a1f926f16f3a8850",
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"end": 8775,
"labels": [
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],
"start": 8449,
"text": "Apart from nonproduction of Bahi, to prove the provonance of the torn piece of blank paper, the similarity of the ink on this torn piece of paper and ledger was extremely doubtful in view of the objection by the FSL and response lead to it which the Investigating Officer(PW33) has also admitted in the cross examination.\n 11."
}
},
{
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"id": "8f7c4d26fe524174bd1c659d4484ba8c",
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"value": {
"end": 9025,
"labels": [
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],
"start": 8776,
"text": "What was relied upon by the High Court was that paper Article 7 recovered on disclosure of appellant accused Devi Lal(from \"Darraj\" to Barsot\") was one which was torn away from Bahi recovered on information at the instance of the appellant Babu Lal."
}
},
{
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"id": "78b9242dfb894c47b85d016fb1a4d7eb",
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"end": 9161,
"labels": [
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],
"start": 9026,
"text": "Secondly, that piece of paper had lower portion which had signatures of deceased Dharam Chand and other than that, the paper was blank."
}
},
{
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"end": 9423,
"labels": [
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],
"start": 9163,
"text": "12. Summarily, the circumstances in totality apart from the extra judicial confession which has been noticed by the High Court are referred to as under: \"1. AppellantDevilal wanted to purchase half portion of `Bara' from deceased for which he actively pursued."
}
},
{
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"end": 9525,
"labels": [
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],
"start": 9425,
"text": "2. On February 7th, in morning, around 910, deceased left for Bhagwanpuranot a very distant village."
}
},
{
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"id": "0b37cd00c6ca485298d9bdf14b4c2344",
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"end": 9654,
"labels": [
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],
"start": 9527,
"text": "3. Around 1010.20 AM, he telling of going to house of Babulal for receiving moneywent towards and to house(`Nohra') of Babulal."
}
},
{
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"id": "b61d5755ae9e4e7386989c15ea510b33",
"to_name": "text",
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"value": {
"end": 9703,
"labels": [
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],
"start": 9654,
"text": "\n Going to house of Babulalthan never seen alive."
}
},
{
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"id": "a660aef1b5dd4ad6a1f99e7462fa14be",
"to_name": "text",
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"value": {
"end": 9809,
"labels": [
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],
"start": 9705,
"text": "4. Jeep of Shambhu hired by Babulal on February 6th for use in evening of 7th for going village Dhikiya."
}
},
{
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"id": "a05bed7766b849d0b0b7b3a06640a088",
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"value": {
"end": 9994,
"labels": [
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],
"start": 9809,
"text": "\n Then in evening of 7th around 8 p.m., Babulal and two other carried weighty drum which left at isolated site body of deceased found in a dry well like pitnear the place drum was left."
}
},
{
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"id": "4b42aa326a2145269b609ffb23106de5",
"to_name": "text",
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"value": {
"end": 10140,
"labels": [
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],
"start": 9996,
"text": "5. On information of Babulal, his own concealed clothes recovered from his housealso were blood stains on compound wall and soil of his `Nohra'."
}
},
{
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"id": "517fc3da557f402f8bf3384c02d1b79f",
"to_name": "text",
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"value": {
"end": 10203,
"labels": [
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],
"start": 10141,
"text": "On clothes of Babulal and clothes of deceased blood `A' group."
}
},
{
"from_name": "label",
"id": "0d9353b2062249a9ae3c1945f1938ae8",
"to_name": "text",
"type": "labels",
"value": {
"end": 10255,
"labels": [
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],
"start": 10205,
"text": "Stains found on the floor of `Nohra' of `A' group."
}
},
{
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"id": "bf2c1492d916421aad660e4e2e244f26",
"to_name": "text",
"type": "labels",
"value": {
"end": 10298,
"labels": [
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],
"start": 10257,
"text": "Stains on wall of `Nohra' of human blood."
}
},
{
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"id": "46e680f5d9394e769ce49f3d920e986e",
"to_name": "text",
"type": "labels",
"value": {
"end": 10446,
"labels": [
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],
"start": 10298,
"text": "\n 6. On information of Babulalthat is from his possession, recovered a `Bahi' of the `Bahi' a leaf about 78\" X 67\"\n was torn away."
}
},
{
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"id": "3b69cc000a7b442fa57eb915bd8b98aa",
"to_name": "text",
"type": "labels",
"value": {
"end": 10510,
"labels": [
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],
"start": 10448,
"text": "7. Babulal informed that above half torn leaf is with Babulal."
}
},
{
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"id": "0b5e32dcef404c89a04fb30d959aca7b",
"to_name": "text",
"type": "labels",
"value": {
"end": 10719,
"labels": [
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],
"start": 10512,
"text": "8. On information and at the instance of Devilal, that is from his possession, found above half torn leaf of `Bahi' recovered from \"Darraj\", that is a narrow space between frame of door and surrounding wall."
}
},
{
"from_name": "label",
"id": "92bdda7cca1541368d706095e32b7e6c",
"to_name": "text",
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"value": {
"end": 10822,
"labels": [
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],
"start": 10721,
"text": "9. On this torn away leaf at lower side, are signatures of Dharam Chandotherwise blank is the paper.\""
}
},
{
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"id": "cec16f220c7f45f59d66ad75aa0fd72a",
"to_name": "text",
"type": "labels",
"value": {
"end": 11118,
"labels": [
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],
"start": 10822,
"text": "\n 13. Without going into detailed scrutiny of the facts on record under consideration, the circumstances which emerged and taken note of under the impugned judgment in itself gives a suspicion in completing the chain of commission of crime beyond doubt, being committed by the accused appellants."
}
},
{
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"id": "81b33a009cef48c9bfb767285538a0de",
"to_name": "text",
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"value": {
"end": 11389,
"labels": [
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],
"start": 11118,
"text": "\n 14. The classic enunciation of law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable decision of the Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984(4) SCC 116."
}
},
{
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"id": "4deaabefaef246908b81f3489271d75e",
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"value": {
"end": 11470,
"labels": [
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],
"start": 11390,
"text": "The relevant excerpts from para 153 of the decision is assuredly apposite: \"153."
}
},
{
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"id": "a78b0ac79dd243db86703a1217370050",
"to_name": "text",
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"value": {
"end": 11734,
"labels": [
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],
"start": 11471,
"text": "A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established."
}
},
{
"from_name": "label",
"id": "20ed8a1441454821bd8568ac34029d49",
"to_name": "text",
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"value": {
"end": 11862,
"labels": [
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],
"start": 11734,
"text": "\n It may be noted here that this Court indicated that the circumstances concerned \"must or should\" and not \"may be\" established."
}
},
{
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"id": "4a552364769b4577b4f961bb3c4daad9",
"to_name": "text",
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"value": {
"end": 12368,
"labels": [
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],
"start": 11863,
"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 & Anr. Vs. State of Maharashtra [(1973) 2 SCC 793 where the observations were made: \"Certainly, it is a primary principle that accused must be the 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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"id": "59ef8e7502b04b0885420f543893a3cb",
"to_name": "text",
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"value": {
"end": 12972,
"labels": [
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],
"start": 12368,
"text": "\n (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.\""
}
},
{
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"id": "c13595159d504cdd8a61545cf95d0023",
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"value": {
"end": 13136,
"labels": [
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],
"start": 12972,
"text": "\n 15. It has further been considered by this Court in Sujit Biswas Vs. State of Assam 2013(12) SCC 406 and Raja alias Rajinder Vs. State of Haryana 2015(11) SCC 43."
}
},
{
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"id": "537f2ef06d4f4e99b927fbb353bff291",
"to_name": "text",
"type": "labels",
"value": {
"end": 13374,
"labels": [
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],
"start": 13137,
"text": "It has been propounded that while scrutinising the circumstantial evidence, a Court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused."
}
},
{
"from_name": "label",
"id": "0306f99aa0934a65a798b50479e2dbfd",
"to_name": "text",
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"value": {
"end": 13603,
"labels": [
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],
"start": 13375,
"text": "The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose."
}
},
{
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"id": "50fe80a48340472fa5761bd99716dd35",
"to_name": "text",
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"value": {
"end": 13931,
"labels": [
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],
"start": 13604,
"text": "But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused.\n 16."
}
},
{
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"value": {
"end": 14282,
"labels": [
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],
"start": 13932,
"text": "On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt."
}
},
{
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"to_name": "text",
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"value": {
"end": 14534,
"labels": [
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],
"start": 14283,
"text": "Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of \"may be true\" to the plane of \"must be true\" as is indispensably required in law for conviction on a criminal charge."
}
},
{
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"text": "All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same."
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"text": "The appellants are thus entitled to the benefit of doubt."
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"text": "Both the appeals succeed and are accordingly allowed."
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"text": "Appellant Devi Lal is already on bail."
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},
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"text": "His bail bonds are discharged."
}
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"text": "Appellant Babu Lal who is in custody is directed to be released forthwith, if not required in any other case."
}
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"text": "\n NEW DELHI"
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},
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"text": "................................CJI."
}
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"text": "\nJanuary 8, 2019."
}
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}
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"text": "J.\n "
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"text": "(AJAY RASTOGI)"
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] | 1,730 | {
"text": " REPORTABLE\n\n IN THE SUPREME COURT OF INDIA\n CRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL APPEAL NO(s). 148 OF 2010\n\nDEVI LAL ........Appellant(s)\n\n VERSUS\n\nSTATE OF RAJASTHAN .......Respondent(s)\n\n WITH\n\n CRIMINAL APPEAL NO(s). 149 OF 2010\n\nBABU LAL VERSUS ...........Appellant(s)\nSTATE OF RAJASTHAN ........Respondent(s)\n\n J U D G M E N T\n Rastogi, J.\n Both the appellants, Babu Lal and Devi Lal are aggrieved by the affirmation of their conviction under Section 302 and other with the aid of Section 120 B of the Indian Penal Code and sentenced to life imprisonment under the impugned Judgment dated 30th January, 2009, seek this Court's intervention.\n 2. Brief facts of the case, as per prosecution, postincident, are that on 8th February 1999 at 7.15 p.m. complainant Vijay Singh (PW2) submitted a written report (Exhibit P1) at Police Station, Nimbahera, informing that he and his cousin brother Dharam Chand(deceased) were living with their families in separate houses in village Binota. In the evening of 7th February, 1999 at 6.00 p.m., daughter of the deceased Dharam Chand informed him on telephone that her father, who had gone to Bhagwanpura on Motor Cycle, had not returned. The complainant, along with other neighbours, went to search deceased Dharam Chand on 8th February, 1999 and at village Bhagwanpura, outside the godown of brother deceased Dharam Chand, found his motorcycle but his whereabouts were not made known. On his written complaint, a missing person report (Exh. P75) was lodged. The Investigating Officer, in the course of enquiry, made from Shambhu Singh (PW3), revealed that on 7th February, 1999, accused Babu Lal had hired his jeep. Babu Lal and his labourers Logar and Bagdiram carried drum which contained wheat. The drum was alighted from the jeep on way near field of Logar, making Shambhu Singh to sit at the house of Logar and on excuse of responding to call of nature, Babu Lal, Logar and Bagdiram got away for about 1.30 hours. When they came back, the drum was not there. On inquiry by Shambhu Singh (PW3), Babu Lal told that Logar and Bagdiram shall deliver it afterwards. On further inquiry, it revealed that on 5th February, 1999, hot altercations had taken place between Babu Lal and deceased Dharam Chand for some money transactions and on carrying such drum, Babu Lal caused some suspicion. During the course of search, it was found that from a dry well, bad odour was emitting. When freshly cut branches and leaves of the teak tree were removed, the dead body of the deceased Dharam Chand was found. On the basis of Exhibit P73, formal FIR came to be registered on 11th February, 1999 at Police Station, Nimbahera.\n 3. After the investigation, chargesheet was filed against the four accused persons namely, Babu Lal, Devi Lal, Keshu Ram @ Panchiya Meena and Logar Rawat. All the four faced trial. The learned trial Judge by its impugned judgment acquitted the accused persons Keshu Ram @ Panchiya Meena and Logar Rawat holding accused Babu Lal guilty for the offence under Section 302 read with Section 34 and 120B IPC and appellant Devi Lal for the offence of Section 120B IPC, of hatching a conspiracy to commit murder.\n 4. The appeals preferred by both the appellants before the High Court came to be dismissed affirming their conviction and sentence vide judgment impugned dated 30th January, 2009.\n 5. Before adverting to the rival submissions, it would be apposite to first take analysis of the evidence on record.\n 6. The case of the prosecution is based on circumstantial evidence. The circumstances which lead the trial Judge to held the appellants guilty under Section 302 and 120B IPC and confirmed by the High Court is primarily based on the evidence of complainant Vijay Singh (PW2), Vandna (PW5) and Uma Devi (PW10), daughter and wife of the deceased and also relied upon the extra judicial confession made by the coaccused Babu Lal to Shambhu Singh (PW3).\n 7. At the outset, it may be noticed that neither in the initial complaint on which the missing report was lodged nor at the stage after inquiry, when the FIR came to be registered (Exh. P 73), the name of appellant Devi Lal surfaced. Even in the statement of Vandna(PW5), while recording statement under Section 164 CrPC, (Exh. D5), no such reference was made of any conspiracy having been hatched by Devi Lal, the accused appellant. In the testimony of PW5 Vandna and PW10 Uma Devi, it was deposed that accused Devi Lal came to the house on 5th February 1999 and wanted to purchase the half portion of Bada from the deceased Dharam Chand for a sum of Rs.\n10,000/. Devi Lal threatened the deceased to sell his Bada which he refused.\n 8. As regards appellant Babu Lal, it was deposed by Vandna (PW5) and Uma Devi (PW10) that he was known to their family as Babu Lal used to take money from the deceased and to return the same. Deceased Dharam Chand lended Rs. 50,000/ to accused Babu Lal, which had been reduced into writing in the ledger book. When deceased Dharam Chand went to take money from Babu Lal, he refused to return the same and started quarrelling. The deceased had informed this to Vandna (PW5) and Uma Devi (PW10). The money as demanded by the deceased led to suspicion of the commission of crime. But both the witnesses Vandna (PW 5) and Uma Devi (PW10), in their crossexamination, stated that they did not know when the accused Babu Lal had borrowed money from the deceased.\n 9. It is true that an extra judicial confession is used against its maker but as a matter of caution, advisable for the Court to look for a corroboration with the other evidence on record. In Gopal Sah v. State of Bihar 2008(17) SCC 128, this court while dealing with extra judicial confession held that extra judicial confession is, on the face of it, a weak evidence and the Court is reluctant, in the absence of a chain of cogent circumstances, to rely on it, for the purpose of recording a conviction. In the instant case, it may be noticed that there are no additional cogent circumstances on record to rely on it. At the same time, Shambhu Singh (PW3), while recording his statement under Section 164 CrPC, has not made such statement of extra judicial confession(Exh. D5) made by accused Babu Lal. In addition, there are no other circumstances on record to support it.\n 10. The other connecting evidence on which reliance was placed by the prosecution was that accused Babu Lal had given information of handing over the torn leaf of Bahi obtaining signatures of deceased Dharam Chand to accused Devi Lal.\nAccused Devi Lal got the said leaf recovered by giving information to the Investigating Officer. There is no justifiable explanation available which came on record as to how the torn leaf came in the possession of Devi Lal as the said paper was torn from the Bahi(Article 27) which was recovered from the accused Babu Lal, which has been matched by FSL report. There was also no justification which came forward from the prosecution as to how the torn Bahi paper of Babu Lal containing the signatures of deceased Dharam Chand with black ink came to him. Pen was recovered on the information of accused Babu Lal, by which handwriting found on the leaf recovered from accused Devi Lal.\nThe further circumstance was recovery of Rs. 11,200/ on the information given by the accused Babu Lal but from where this money had come to Babu Lal, was not clarified by the prosecution. The other circumstances completing the chain was that accused Devi Lal had not given any clarification with regard to the fact that by which information Devi Lal had come to Babu Lal which had been indicated in the diary recovered from accused Devi Lal under Section 27 of the Evidence Act. Accused Babu Lal was arrested on 13th February, 1999 and accused Devi Lal was arrested on 15th February, 1999 for the alleged incident of 7th February, 1999 which came to knowledge of informant on 8th February, 1999 and report was lodged on 11th February, 1999 and the alleged recovery of torn page of Bahi, which obtained signature of the deceased along with the diary of 1999(Exhibit P 79), under Section 27 of the Evidence Act was made on 24th February, 1999. The Bahi, as such, was never produced. Apart from nonproduction of Bahi, to prove the provonance of the torn piece of blank paper, the similarity of the ink on this torn piece of paper and ledger was extremely doubtful in view of the objection by the FSL and response lead to it which the Investigating Officer(PW33) has also admitted in the cross examination.\n 11. What was relied upon by the High Court was that paper Article 7 recovered on disclosure of appellant accused Devi Lal(from \"Darraj\" to Barsot\") was one which was torn away from Bahi recovered on information at the instance of the appellant Babu Lal. Secondly, that piece of paper had lower portion which had signatures of deceased Dharam Chand and other than that, the paper was blank.\n 12. Summarily, the circumstances in totality apart from the extra judicial confession which has been noticed by the High Court are referred to as under: \"1. AppellantDevilal wanted to purchase half portion of `Bara' from deceased for which he actively pursued.\n 2. On February 7th, in morning, around 910, deceased left for Bhagwanpuranot a very distant village.\n 3. Around 1010.20 AM, he telling of going to house of Babulal for receiving moneywent towards and to house(`Nohra') of Babulal.\n Going to house of Babulalthan never seen alive.\n 4. Jeep of Shambhu hired by Babulal on February 6th for use in evening of 7th for going village Dhikiya.\n Then in evening of 7th around 8 p.m., Babulal and two other carried weighty drum which left at isolated site body of deceased found in a dry well like pitnear the place drum was left.\n 5. On information of Babulal, his own concealed clothes recovered from his housealso were blood stains on compound wall and soil of his `Nohra'. On clothes of Babulal and clothes of deceased blood `A' group.\n Stains found on the floor of `Nohra' of `A' group.\n Stains on wall of `Nohra' of human blood.\n 6. On information of Babulalthat is from his possession, recovered a `Bahi' of the `Bahi' a leaf about 78\" X 67\"\n was torn away.\n 7. Babulal informed that above half torn leaf is with Babulal.\n 8. On information and at the instance of Devilal, that is from his possession, found above half torn leaf of `Bahi' recovered from \"Darraj\", that is a narrow space between frame of door and surrounding wall.\n 9. On this torn away leaf at lower side, are signatures of Dharam Chandotherwise blank is the paper.\"\n 13. Without going into detailed scrutiny of the facts on record under consideration, the circumstances which emerged and taken note of under the impugned judgment in itself gives a suspicion in completing the chain of commission of crime beyond doubt, being committed by the accused appellants.\n 14. The classic enunciation of law pertaining to circumstantial evidence, its relevance and decisiveness, as a proof of charge of a criminal offence, is amongst others traceable decision of the Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984(4) SCC 116. The relevant excerpts from para 153 of the decision is assuredly apposite: \"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (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\" established. 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 & Anr. Vs. State of Maharashtra [(1973) 2 SCC 793 where the observations were made: \"Certainly, it is a primary principle that accused must be the 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.\"\n (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.\"\n 15. It has further been considered by this Court in Sujit Biswas Vs. State of Assam 2013(12) SCC 406 and Raja alias Rajinder Vs. State of Haryana 2015(11) SCC 43. It has been propounded that while scrutinising the circumstantial evidence, a Court has to evaluate it to ensure the chain of events is established clearly and completely to rule out any reasonable likelihood of innocence of the accused. The underlying principle is whether the chain is complete or not, indeed it would depend on the facts of each case emanating from the evidence and there cannot be a straight jacket formula which can be laid down for the purpose. But the circumstances adduced when considered collectively, it must lead only to the conclusion that there cannot be a person other than the accused who alone is the perpetrator of the crime alleged and the circumstances must establish the conclusive nature consistent only with the hypothesis of the guilt of the accused.\n 16. On an analysis of the overall fact situation in the instant case, and considering the chain of circumstantial evidence relied upon by the prosecution and noticed by the High Court in the impugned judgment, to prove the charge is visibly incomplete and incoherent to permit conviction of the appellants on the basis thereof without any trace of doubt. Though the materials on record hold some suspicion towards them, but the prosecution has failed to elevate its case from the realm of \"may be true\" to the plane of \"must be true\" as is indispensably required in law for conviction on a criminal charge. It is trite to state that in a criminal trial, suspicion, howsoever grave, cannot substitute proof.\n 17. That apart, in the case of circumstantial evidence, two views are possible on the case of record, one pointing to the guilt of the accused and the other his innocence. The accused is indeed entitled to have the benefit of one which is favourable to him. All the judicially laid parameters, defining the quality and content of the circumstantial evidence, bring home the guilt of the accused on a criminal charge, we find no difficulty to hold that the prosecution, in the case in hand, has failed to meet the same.\n 18. In the given facts and circumstances, we are unable to sustain their conviction. The appellants are thus entitled to the benefit of doubt. Both the appeals succeed and are accordingly allowed. Appellant Devi Lal is already on bail. His bail bonds are discharged. Appellant Babu Lal who is in custody is directed to be released forthwith, if not required in any other case.\n NEW DELHI ................................CJI.\nJanuary 8, 2019. (RANJAN GOGOI) ...................................J.\n (K.M. JOSEPH) ...................................J.\n (AJAY RASTOGI) "
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"text": "IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS, ,\n ROURKELA.\n\n Present:\n\n Miss Neha Das.B.B.A, LL.B.\n Judicial Magistrate First Class,\n Rourkela."
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"text": "2(a)CC Case No. 314 of 2015\n "
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"text": "Trial No. 81 of 2016"
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"text": "State ... Complainant.\n\n -Versus-\n\nBali Vengra,aged about 50 years,S/"
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"text": "o-Chamu Vengra,of At-Ghogar,P.S-"
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"text": "\nRaiboga,Dist-Sundargarh"
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"text": ".\n\n ... Accused.\n\n Counsel for the State ... A.P.P., ROURKELA.\n Counsel for the Defence ..."
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"text": "Shri. S.K.Sahoo"
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"text": "&\n\n Associates.\n\n Date of conclusion of Argument : 19.02.2016"
}
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"text": "Date of Judgment : 20.02.2016"
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"text": "Offence U/s 47 (a) of Bihar and Orissa Excise Act."
}
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"text": "1. Accused above named stands charged for the offence punishable U/s 47(a) of Bihar & Orissa Excise Act(in short 'B & O Excise Act') with allegation of unlawful possession of five liters of I.D. Liquor , without any license or authority."
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"text": "\n2. Brief story of prosecution follows: That on 22.06.2015 at bout 8.AM., the then S. I.of Excise namely Fakira Dehuri (informant) had gone for excise patrolling along with other staff towards village Ghogar."
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"text": "Informant further alleged that during patrolling, they found one person coming on the road carrying one plastic jarycane in a suspicious manner."
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"text": "Upon suspicion, informant detained the person who identified himself as Bali Vengra."
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],
"start": 1592,
"text": "Informant further alleged that upon suspicion he conducted search of the accused after observing all legal formalities and recovered one plastic jarycane containing about five liters of I.D.liquor."
}
},
{
"from_name": null,
"id": "7053d4b84bca430a90a49e3b5a9e74f3",
"to_name": null,
"type": null,
"value": {
"end": 1885,
"labels": [
"FAC"
],
"start": 1790,
"text": "Then on suspicion, informant conducted blue litmus paper test with the liquid which turned red."
}
},
{
"from_name": null,
"id": "7fab17cb368d4163b3ed3da44be1091c",
"to_name": null,
"type": null,
"value": {
"end": 2012,
"labels": [
"FAC"
],
"start": 1886,
"text": "Informant also conducted hydrometer test with the liquid and found it's temperature 87'F,indication 82.2 and strength 56.7'UP."
}
},
{
"from_name": null,
"id": "782d4631165d4d7f918c6aa204a5916f",
"to_name": null,
"type": null,
"value": {
"end": 2125,
"labels": [
"FAC"
],
"start": 2013,
"text": "Informant further alleged that from the above tests and his distillery experience, he concluded it as I.D.liquor"
}
},
{
"from_name": null,
"id": "5e6722e5a6f949c0a45d854163a30703",
"to_name": null,
"type": null,
"value": {
"end": 2376,
"labels": [
"FAC"
],
"start": 2126,
"text": ".Informant further alleged that as the accused on demand failed to produce any license or authority for possession of such liquor,he seized the jarycane containing the liquor and prepared seizure list at the spot in presence of accused and witnesses."
}
},
{
"from_name": null,
"id": "13ea2d43f7fc4135953c2a181761dbc8",
"to_name": null,
"type": null,
"value": {
"end": 2492,
"labels": [
"FAC"
],
"start": 2377,
"text": "After completion of investigation, prosecution report was submitted against the accused U/s.47(a)of B&O Excise Act."
}
},
{
"from_name": null,
"id": "561f401ab89d40eba843f614ddba0efd",
"to_name": null,
"type": null,
"value": {
"end": 2509,
"labels": [
"FAC"
],
"start": 2492,
"text": "\nHence, the case."
}
},
{
"from_name": null,
"id": "13d921ded1464c41983bfd1a47d7acf0",
"to_name": null,
"type": null,
"value": {
"end": 2584,
"labels": [
"FAC"
],
"start": 2509,
"text": "\n3. Plea of the accused is one of complete denial of the above allegations."
}
},
{
"from_name": null,
"id": "e735b51eeddb461899b9d555759ebcf9",
"to_name": null,
"type": null,
"value": {
"end": 2836,
"labels": [
"ISSUE"
],
"start": 2585,
"text": "4. Hence, point for determination in this case is that: i) Whether On 22.06.2015 at about 8.00 A.M on the road near village Ghogar, the accused was in exclusive and conscious possession of five liters of I.D liquor, without any license or authority. ?"
}
},
{
"from_name": null,
"id": "c9b7a202e2fc4cbd8de9ca12daa17707",
"to_name": null,
"type": null,
"value": {
"end": 3079,
"labels": [
"FAC"
],
"start": 2837,
"text": "5. In order to establish the charge, prosecution has examined as many as three witnesses out of whom, P.W.3 is the informant S.I of Excise Fakira Dehuri who made the seizure .On the other hand, defence has examined none to further it's stand."
}
},
{
"from_name": null,
"id": "a6789b0fde714b449ac878bc167a0c4d",
"to_name": null,
"type": null,
"value": {
"end": 3254,
"labels": [
"FAC"
],
"start": 3080,
"text": "6. It is forthcoming from the testimony of P.W.3 that on 22.06.2015 at about 8.00 A.M., while he had gone for excise patrolling along with other staff towards village Ghogar."
}
},
{
"from_name": null,
"id": "a8101749531d44648660d9be9dfce1c6",
"to_name": null,
"type": null,
"value": {
"end": 3393,
"labels": [
"FAC"
],
"start": 3255,
"text": "P.W.3further deposed that during patrolling they found one person coming on the road carrying one plastic jarycane in a suspicious manner."
}
},
{
"from_name": null,
"id": "c7135cf027444801a91fcd2b1dcf8ba2",
"to_name": null,
"type": null,
"value": {
"end": 3497,
"labels": [
"FAC"
],
"start": 3394,
"text": "P.W.3further deposed that upon suspicion, he detained the person who identified himself as Bali Vengra."
}
},
{
"from_name": null,
"id": "8fceb5b3ecb141f4806a9846060d6945",
"to_name": null,
"type": null,
"value": {
"end": 3689,
"labels": [
"FAC"
],
"start": 3497,
"text": "P.W.3 further deposed that upon suspicion he conducted search of the accused after observing all legal formalities and recovered one plastic jarycane containing about five liters of I.D.liquor"
}
},
{
"from_name": null,
"id": "160012dd0a664a72b4199fb0fd4f8412",
"to_name": null,
"type": null,
"value": {
"end": 3803,
"labels": [
"FAC"
],
"start": 3690,
"text": ".P.W.3 further deposed that upon suspicion, he conducted blue litmus paper test with the liquid which turned red."
}
},
{
"from_name": null,
"id": "cec73cac7f1f417ea7a76e1006a585b6",
"to_name": null,
"type": null,
"value": {
"end": 3954,
"labels": [
"FAC"
],
"start": 3803,
"text": "P.W.3 further deposed that he also conducted hydrometer test with the liquid and found it's temperature 87'F,indication 82.2 and strength 56.7'UP.P.W.3"
}
},
{
"from_name": null,
"id": "3aaddc9837264961a1efa088ea9418e7",
"to_name": null,
"type": null,
"value": {
"end": 4057,
"labels": [
"FAC"
],
"start": 3955,
"text": "further deposed that from the above tests and his distillery experience, he concluded it as I.D liquor"
}
},
{
"from_name": null,
"id": "1e9536f68f024711982425c883bf9875",
"to_name": null,
"type": null,
"value": {
"end": 4305,
"labels": [
"FAC"
],
"start": 4058,
"text": ".P.W.3 further deposed that as the accused on demand failed to produce any license or authority for possession of such liquor, he seized the jarycane containing the liquor and prepared seizure list at the spot in presence of accused and witnesses."
}
},
{
"from_name": null,
"id": "a9cddaa6d2c84cc2a7269864efaa10a2",
"to_name": null,
"type": null,
"value": {
"end": 4492,
"labels": [
"FAC"
],
"start": 4306,
"text": "Testimonies of P.W.1 and P.W.2 are similar to that of P.W.3 in all material particulars regarding the seizure of liquor from the possession of the accused at the relevant time and place."
}
},
{
"from_name": null,
"id": "965b00af286a44868809f59073f1dcfb",
"to_name": null,
"type": null,
"value": {
"end": 4687,
"labels": [
"FAC"
],
"start": 4492,
"text": "P.W.1 proved the said seizure list vide Ext.2, his signature there on vide Ext.2/1,the hydrometer test chart vide Ext.1 blue litmus paper vide Ext.1/1 and his signature on hydrometer chart vide "
}
},
{
"from_name": null,
"id": "1c2c46d10c4942b4bea25faeb6460763",
"to_name": null,
"type": null,
"value": {
"end": 4815,
"labels": [
"FAC"
],
"start": 4687,
"text": "P.w.2 also proved his signature on the seizure list vide Ext.2/2 and also proved his signature on hydrometer chart vide Ext.1/3."
}
},
{
"from_name": null,
"id": "228a1cab65104f9488d1787623349f44",
"to_name": null,
"type": null,
"value": {
"end": 4932,
"labels": [
"FAC"
],
"start": 4816,
"text": "P.W.3 also proved and his signature on the hydrometer chart vide Ext.1/4 and his signature on the seizure list vide."
}
},
{
"from_name": null,
"id": "7c79e8f4a8e34834b7314855b77e73e9",
"to_name": null,
"type": null,
"value": {
"end": 5151,
"labels": [
"ANALYSIS"
],
"start": 4933,
"text": "Ext.2/3.\n P.W.3 in his cross examination admitted that no command certificate was issued to them for the purpose of patrolling duty at the alleged date and time and that the seized articles \\were not produced in court."
}
},
{
"from_name": null,
"id": "81d95a4b1d2041babe639151c049c71d",
"to_name": null,
"type": null,
"value": {
"end": 5457,
"labels": [
"ANALYSIS"
],
"start": 5151,
"text": "\n7. Now in order to establish the charge U/s.47(a) of B & O Excise Act, it is incumbent upon the prosecution to establish through direct and cogent evidences that: (i) The seized liquid was I.D.liquor (intoxicant).\n (ii) That the liquor was possessed by the accused without any license or authority."
}
},
{
"from_name": null,
"id": "82c754b3221148c0afaf3de6c4181997",
"to_name": null,
"type": null,
"value": {
"end": 5550,
"labels": [
"ANALYSIS"
],
"start": 5457,
"text": "\n (iii) That it was seized from the exclusive and conscious possession of the accused."
}
},
{
"from_name": null,
"id": "730cdad156cc4498b55cdec8ec9c8fbe",
"to_name": null,
"type": null,
"value": {
"end": 5658,
"labels": [
"ANALYSIS"
],
"start": 5550,
"text": "\n The prosecution has relied upon the testimony of P.W.3 to establish the charge against the accused."
}
},
{
"from_name": null,
"id": "c80138c9a428465aa9c3797130fd016e",
"to_name": null,
"type": null,
"value": {
"end": 5746,
"labels": [
"ANALYSIS"
],
"start": 5658,
"text": "P.W.3 deposed that he conducted blue litmus paper test with the liquid which turned red."
}
},
{
"from_name": null,
"id": "2ec6aa36fe0047a8bb8f862ee76bea0d",
"to_name": null,
"type": null,
"value": {
"end": 5884,
"labels": [
"ANALYSIS"
],
"start": 5746,
"text": "P.W.3 further deposed that he conducted hydrometer test with the liquid and found it's temperature 87'F,indication 82.2 and strength 56.7'"
}
},
{
"from_name": null,
"id": "d4df0e0502214e7d92765c8dca2a4cc9",
"to_name": null,
"type": null,
"value": {
"end": 5893,
"labels": [
"ANALYSIS"
],
"start": 5885,
"text": "UP.P.W.3"
}
},
{
"from_name": null,
"id": "4b4b0596948f400397c125765c02cdb1",
"to_name": null,
"type": null,
"value": {
"end": 5901,
"labels": [
"ANALYSIS"
],
"start": 5894,
"text": "further"
}
},
{
"from_name": null,
"id": "f32c244917ca4206bb0167b053863012",
"to_name": null,
"type": null,
"value": {
"end": 6011,
"labels": [
"ANALYSIS"
],
"start": 5902,
"text": "deposed that from the above tests and his distillery experience , he concluded the said liquid as I.D.liquor."
}
},
{
"from_name": null,
"id": "e00d924af6ab49c9b6217970462c81ae",
"to_name": null,
"type": null,
"value": {
"end": 6451,
"labels": [
"PRE_RELIED"
],
"start": 6020,
"text": "In Suma Das Vrs.State of Orissa reported in 1993(II) OLR- 392,Hon'ble Court has observed that \"Chemical test is the surest test for determining the illicit liquor .Other tests are litmus and hydrometer test but can not be said to be surest unless prosecution establishes by evidence that the officer who made the test was specially skilled because his evidence is to be accepted as evidence of expert U/s 45 of Indian Evidence Act."
}
},
{
"from_name": null,
"id": "15a56c0185194494b857dc6288e2d7c2",
"to_name": null,
"type": null,
"value": {
"end": 6591,
"labels": [
"PRE_RELIED"
],
"start": 6451,
"text": "Simple statement that the officer has been working in the department for a number of years would not attract Sec 45 of Indian Evidence Act\"."
}
},
{
"from_name": null,
"id": "6968211c3a1c4ceeaf7e0d7cf80add58",
"to_name": null,
"type": null,
"value": {
"end": 6757,
"labels": [
"ANALYSIS"
],
"start": 6593,
"text": "In this case , there is no evidence forth-coming that the liquor was sent for chemical test which is the surest test to conclude the liquid is nothing but ID Liquor"
}
},
{
"from_name": null,
"id": "612390ba3ea746c3b112224924e3a486",
"to_name": null,
"type": null,
"value": {
"end": 6870,
"labels": [
"ANALYSIS"
],
"start": 6758,
"text": ".The evidence of prosecution witnesses clearly revealed that the said liquid was not sent for any chemical test."
}
},
{
"from_name": null,
"id": "e4438c69aed94d6caf20a5d5386b0cd7",
"to_name": null,
"type": null,
"value": {
"end": 6969,
"labels": [
"ANALYSIS"
],
"start": 6871,
"text": "Further P.W.3 admitted not to have submitted his distillery training certificate with case record."
}
},
{
"from_name": null,
"id": "2e651d095cd441b7959ed115294b28fc",
"to_name": null,
"type": null,
"value": {
"end": 7061,
"labels": [
"ANALYSIS"
],
"start": 6970,
"text": "Hence, in view of the above , fact that the liquid is nothing but liquor comes under cloud."
}
},
{
"from_name": null,
"id": "88c7b90050ec4a54ba686adb5d120613",
"to_name": null,
"type": null,
"value": {
"end": 7202,
"labels": [
"ANALYSIS"
],
"start": 7062,
"text": "Hence, it can be safely concluded that prosecution has failed to prove that the liquid is noting but ID liquor,beyond all reasonable doubts."
}
},
{
"from_name": null,
"id": "05915d82ed634e7fa5d357f726d135f1",
"to_name": null,
"type": null,
"value": {
"end": 7526,
"labels": [
"ANALYSIS"
],
"start": 7203,
"text": "8. Now coming to the second ingredient i.e to establish the fact that the liquor was seized from the exclusive and conscious possession of the accused person, the prosecution has relied upon the testimonies of P.\nW.1,P.W.2 and P.W.3, who deposed similarly regarding seizure of the liquor from the possession of the accused."
}
},
{
"from_name": null,
"id": "5631f9f6bb134e1d8fad0d7ae5aa7741",
"to_name": null,
"type": null,
"value": {
"end": 7674,
"labels": [
"ANALYSIS"
],
"start": 7527,
"text": "However, prosecution has not brought any independent corroboration to establish regarding seizure of the liquor from the possession of the accused."
}
},
{
"from_name": null,
"id": "35f96be10e794399aca94d38c917edb4",
"to_name": null,
"type": null,
"value": {
"end": 7760,
"labels": [
"ANALYSIS"
],
"start": 7675,
"text": "The seized article was also not produced before the Court during the course of trial."
}
},
{
"from_name": null,
"id": "5d28e48971d94580bb10216846d4ce39",
"to_name": null,
"type": null,
"value": {
"end": 7912,
"labels": [
"ANALYSIS"
],
"start": 7761,
"text": "Prosecution has also not adduced any evidence that the accused persons had dominion or control over the seized article .In view of the above discussion"
}
},
{
"from_name": null,
"id": "b354b0200d0349acbcbf8804485e1d94",
"to_name": null,
"type": null,
"value": {
"end": 8044,
"labels": [
"ANALYSIS"
],
"start": 7913,
"text": ", the fact that the seized article was recovered from the exclusive and conscious possession of the accused person became doubtful."
}
},
{
"from_name": null,
"id": "b86c8297e97b44d6829324a00c9fa7e2",
"to_name": null,
"type": null,
"value": {
"end": 8227,
"labels": [
"ANALYSIS"
],
"start": 8045,
"text": "Hence, it is concluded that prosecution has failed to prove the factum of seizure from the exclusive and conscious possession of the accused persons beyond all the reasonable doubts."
}
},
{
"from_name": null,
"id": "f3f95663daac42fba95fa17d9ab865f0",
"to_name": null,
"type": null,
"value": {
"end": 8420,
"labels": [
"ANALYSIS"
],
"start": 8228,
"text": "Hence, the prosecution evidences on record in my opinion are not sufficient to establish the fact that the liquor has been seized from exclusive and conscious possession of the accused person."
}
},
{
"from_name": null,
"id": "6807889ec56a431d9b9d71f08a8587e7",
"to_name": null,
"type": null,
"value": {
"end": 8673,
"labels": [
"RATIO"
],
"start": 8420,
"text": "\nHence, from the discussions above made, I am of the view that prosecution has failed miserably to bring such direct and cogent evidences to establish the vital ingredients of offence U/s.47(a) of Bihar and Orissa Excise Act beyond all reasonable doubt."
}
},
{
"from_name": null,
"id": "b117b97e506040d486cda0c2935ae47e",
"to_name": null,
"type": null,
"value": {
"end": 8854,
"labels": [
"RPC"
],
"start": 8674,
"text": "9. In the result, therefore, I hold the accused person not guilty of committing the offence U/s 47(a)of Bihar & Orissa Excise Act and acquit him U/s 248(1) Criminal Procedure Code."
}
},
{
"from_name": null,
"id": "53a4447feb4e4464b59ff0b403dc1090",
"to_name": null,
"type": null,
"value": {
"end": 9011,
"labels": [
"RPC"
],
"start": 8855,
"text": "The accused person be set at liberty forthwith if he is in custody and no other case is pending against him and is discharged from his bail bonds, if any.\n "
}
},
{
"from_name": null,
"id": "f8c9b4c75dcb48d385f324935526e972",
"to_name": null,
"type": null,
"value": {
"end": 9145,
"labels": [
"RPC"
],
"start": 9011,
"text": "The seized article be destroyed after four months of expiry of appeal period if no appeal is preferred an if preferred , be dealt with"
}
},
{
"from_name": null,
"id": "b1058137476d471e836fc13b2f5b1b24",
"to_name": null,
"type": null,
"value": {
"end": 9190,
"labels": [
"RPC"
],
"start": 9146,
"text": "as per the direction of the Appellate Court."
}
},
{
"from_name": null,
"id": "b14540b893a8454b93a5a8202d224294",
"to_name": null,
"type": null,
"value": {
"end": 9269,
"labels": [
"NONE"
],
"start": 9190,
"text": "\n \"Enter this case as mistake of fact for statistical purpose\".\n JMFC,Rourkela."
}
},
{
"from_name": null,
"id": "9ad9d504daf84e25980f037e9ecf019e",
"to_name": null,
"type": null,
"value": {
"end": 9422,
"labels": [
"NONE"
],
"start": 9269,
"text": "\n Judgment is dictated and corrected by me, pronounced in the open court on this the 20th day of February , 2016 under my signature an seal of the Court."
}
},
{
"from_name": null,
"id": "0394c9f812584547b159d26f63b47685",
"to_name": null,
"type": null,
"value": {
"end": 9438,
"labels": [
"NONE"
],
"start": 9422,
"text": "\n JMFC,Rourkela."
}
},
{
"from_name": null,
"id": "60071fb10443431bbb6430ea2246c9f4",
"to_name": null,
"type": null,
"value": {
"end": 9461,
"labels": [
"NONE"
],
"start": 9440,
"text": "List of Pws examined."
}
},
{
"from_name": null,
"id": "bb1d97682448459fad79a0c9586a5805",
"to_name": null,
"type": null,
"value": {
"end": 9491,
"labels": [
"NONE"
],
"start": 9461,
"text": "\n P.W.1 Chadrakanta Behera."
}
},
{
"from_name": null,
"id": "69ac63c60eea4e6cb990491ff9e34b34",
"to_name": null,
"type": null,
"value": {
"end": 9515,
"labels": [
"NONE"
],
"start": 9491,
"text": "\n P.W.2 Pradeep Sahu."
}
},
{
"from_name": null,
"id": "4747df3a43554332bf3c8196d7a45413",
"to_name": null,
"type": null,
"value": {
"end": 9545,
"labels": [
"NONE"
],
"start": 9517,
"text": "P.W.3 Fakir Behuri."
}
},
{
"from_name": null,
"id": "6385c741907c49daa256a1dc1084352d",
"to_name": null,
"type": null,
"value": {
"end": 9568,
"labels": [
"NONE"
],
"start": 9547,
"text": "List of Dws examined."
}
},
{
"from_name": null,
"id": "2114fd251f2c4071ace15cbcac1fb1e2",
"to_name": null,
"type": null,
"value": {
"end": 9939,
"labels": [
"NONE"
],
"start": 9570,
"text": "N I l.\n List of Exts. marked by the Prosecution.\n Ext.1 Hydrometer Chart.\nExt.1/1 Blue litmus paper.\nExt.1/2 Signature of P.W.1 .\nExt.1/3 Signature of P.W.2 .\nExt.1/4 Signature on hydrometer chart.\nExt.2 Seizure list.\nExt.2/1 Signature of P.W.1 .\nExt.2/2 Signature of P.W.2.\nExt.2/3 Signature of P.W.3."
}
},
{
"from_name": null,
"id": "aa8ceaf74ed242e1a8ca09230a293333",
"to_name": null,
"type": null,
"value": {
"end": 9977,
"labels": [
"NONE"
],
"start": 9941,
"text": "List of Exts. marked by the Defence."
}
},
{
"from_name": null,
"id": "25d070a3399c40e794570b598a774e1f",
"to_name": null,
"type": null,
"value": {
"end": 10028,
"labels": [
"NONE"
],
"start": 9977,
"text": "\n N I l.\n Judicial Magistrate First Class Rourkela."
}
}
]
}
] | 4,214 | {
"text": "IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS, ,\n ROURKELA.\n\n Present:\n\n Miss Neha Das.B.B.A, LL.B.\n Judicial Magistrate First Class,\n Rourkela.\n\n 2(a)CC Case No. 314 of 2015\n Trial No. 81 of 2016\n\n State ... Complainant.\n\n -Versus-\n\nBali Vengra,aged about 50 years,S/o-Chamu Vengra,of At-Ghogar,P.S-\nRaiboga,Dist-Sundargarh.\n\n ... Accused.\n\n Counsel for the State ... A.P.P., ROURKELA.\n Counsel for the Defence ... Shri. S.K.Sahoo &\n\n Associates.\n\n Date of conclusion of Argument : 19.02.2016\n Date of Judgment : 20.02.2016\n\n Offence U/s 47 (a) of Bihar and Orissa Excise Act.\n\n JUDGMENT\n 1. Accused above named stands charged for the offence punishable U/s 47(a) of Bihar & Orissa Excise Act(in short 'B & O Excise Act') with allegation of unlawful possession of five liters of I.D. Liquor , without any license or authority.\n2. Brief story of prosecution follows: That on 22.06.2015 at bout 8.AM., the then S. I.of Excise namely Fakira Dehuri (informant) had gone for excise patrolling along with other staff towards village Ghogar. Informant further alleged that during patrolling, they found one person coming on the road carrying one plastic jarycane in a suspicious manner. Upon suspicion, informant detained the person who identified himself as Bali Vengra. Informant further alleged that upon suspicion he conducted search of the accused after observing all legal formalities and recovered one plastic jarycane containing about five liters of I.D.liquor. Then on suspicion, informant conducted blue litmus paper test with the liquid which turned red. Informant also conducted hydrometer test with the liquid and found it's temperature 87'F,indication 82.2 and strength 56.7'UP. Informant further alleged that from the above tests and his distillery experience, he concluded it as I.D.liquor .Informant further alleged that as the accused on demand failed to produce any license or authority for possession of such liquor,he seized the jarycane containing the liquor and prepared seizure list at the spot in presence of accused and witnesses. After completion of investigation, prosecution report was submitted against the accused U/s.47(a)of B&O Excise Act.\nHence, the case.\n3. Plea of the accused is one of complete denial of the above allegations.\n4. Hence, point for determination in this case is that: i) Whether On 22.06.2015 at about 8.00 A.M on the road near village Ghogar, the accused was in exclusive and conscious possession of five liters of I.D liquor, without any license or authority. ?\n5. In order to establish the charge, prosecution has examined as many as three witnesses out of whom, P.W.3 is the informant S.I of Excise Fakira Dehuri who made the seizure .On the other hand, defence has examined none to further it's stand.\n6. It is forthcoming from the testimony of P.W.3 that on 22.06.2015 at about 8.00 A.M., while he had gone for excise patrolling along with other staff towards village Ghogar. P.W.3further deposed that during patrolling they found one person coming on the road carrying one plastic jarycane in a suspicious manner. P.W.3further deposed that upon suspicion, he detained the person who identified himself as Bali Vengra.P.W.3 further deposed that upon suspicion he conducted search of the accused after observing all legal formalities and recovered one plastic jarycane containing about five liters of I.D.liquor .P.W.3 further deposed that upon suspicion, he conducted blue litmus paper test with the liquid which turned red.P.W.3 further deposed that he also conducted hydrometer test with the liquid and found it's temperature 87'F,indication 82.2 and strength 56.7'UP.P.W.3 further deposed that from the above tests and his distillery experience, he concluded it as I.D liquor .P.W.3 further deposed that as the accused on demand failed to produce any license or authority for possession of such liquor, he seized the jarycane containing the liquor and prepared seizure list at the spot in presence of accused and witnesses.\nTestimonies of P.W.1 and P.W.2 are similar to that of P.W.3 in all material particulars regarding the seizure of liquor from the possession of the accused at the relevant time and place.P.W.1 proved the said seizure list vide Ext.2, his signature there on vide Ext.2/1,the hydrometer test chart vide Ext.1 blue litmus paper vide Ext.1/1 and his signature on hydrometer chart vide P.w.2 also proved his signature on the seizure list vide Ext.2/2 and also proved his signature on hydrometer chart vide Ext.1/3. P.W.3 also proved and his signature on the hydrometer chart vide Ext.1/4 and his signature on the seizure list vide. Ext.2/3.\n P.W.3 in his cross examination admitted that no command certificate was issued to them for the purpose of patrolling duty at the alleged date and time and that the seized articles \\were not produced in court.\n7. Now in order to establish the charge U/s.47(a) of B & O Excise Act, it is incumbent upon the prosecution to establish through direct and cogent evidences that: (i) The seized liquid was I.D.liquor (intoxicant).\n (ii) That the liquor was possessed by the accused without any license or authority.\n (iii) That it was seized from the exclusive and conscious possession of the accused.\n The prosecution has relied upon the testimony of P.W.3 to establish the charge against the accused.P.W.3 deposed that he conducted blue litmus paper test with the liquid which turned red.P.W.3 further deposed that he conducted hydrometer test with the liquid and found it's temperature 87'F,indication 82.2 and strength 56.7' UP.P.W.3 further deposed that from the above tests and his distillery experience , he concluded the said liquid as I.D.liquor.\n In Suma Das Vrs.State of Orissa reported in 1993(II) OLR- 392,Hon'ble Court has observed that \"Chemical test is the surest test for determining the illicit liquor .Other tests are litmus and hydrometer test but can not be said to be surest unless prosecution establishes by evidence that the officer who made the test was specially skilled because his evidence is to be accepted as evidence of expert U/s 45 of Indian Evidence Act.Simple statement that the officer has been working in the department for a number of years would not attract Sec 45 of Indian Evidence Act\".\n In this case , there is no evidence forth-coming that the liquor was sent for chemical test which is the surest test to conclude the liquid is nothing but ID Liquor .The evidence of prosecution witnesses clearly revealed that the said liquid was not sent for any chemical test. Further P.W.3 admitted not to have submitted his distillery training certificate with case record. Hence, in view of the above , fact that the liquid is nothing but liquor comes under cloud. Hence, it can be safely concluded that prosecution has failed to prove that the liquid is noting but ID liquor,beyond all reasonable doubts.\n8. Now coming to the second ingredient i.e to establish the fact that the liquor was seized from the exclusive and conscious possession of the accused person, the prosecution has relied upon the testimonies of P.\nW.1,P.W.2 and P.W.3, who deposed similarly regarding seizure of the liquor from the possession of the accused. However, prosecution has not brought any independent corroboration to establish regarding seizure of the liquor from the possession of the accused. 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 persons 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 person became doubtful. Hence, it is concluded that prosecution has failed to prove the factum of seizure from the exclusive and conscious possession of the accused persons beyond all the reasonable doubts. Hence, the prosecution evidences on record in my opinion are not sufficient to establish the fact that the liquor has been seized from exclusive and conscious possession of the accused person.\nHence, from the discussions above made, I am of the view that prosecution has failed miserably to bring such direct and cogent evidences to establish the vital ingredients of offence U/s.47(a) of Bihar and Orissa Excise Act beyond all reasonable doubt.\n9. In the result, therefore, I hold the accused person not guilty of committing the offence U/s 47(a)of Bihar & Orissa Excise Act and acquit him U/s 248(1) Criminal Procedure Code. The accused person be set at liberty forthwith if he is in custody and no other case is pending against him and is discharged from his bail bonds, if any.\n The seized article be destroyed after four months of expiry of appeal period if no appeal is preferred an if preferred , be dealt with as per the direction of the Appellate Court.\n \"Enter this case as mistake of fact for statistical purpose\".\n JMFC,Rourkela.\n Judgment is dictated and corrected by me, pronounced in the open court on this the 20th day of February , 2016 under my signature an seal of the Court.\n JMFC,Rourkela.\n List of Pws examined.\n P.W.1 Chadrakanta Behera.\n P.W.2 Pradeep Sahu.\n P.W.3 Fakir Behuri.\n List of Dws examined.\n N I l.\n List of Exts. marked by the Prosecution.\n Ext.1 Hydrometer Chart.\nExt.1/1 Blue litmus paper.\nExt.1/2 Signature of P.W.1 .\nExt.1/3 Signature of P.W.2 .\nExt.1/4 Signature on hydrometer chart.\nExt.2 Seizure list.\nExt.2/1 Signature of P.W.1 .\nExt.2/2 Signature of P.W.2.\nExt.2/3 Signature of P.W.3.\n List of Exts. marked by the Defence.\n N I l.\n Judicial Magistrate First Class Rourkela.\n"
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "753c38378d2e45f49871774b84d98d29",
"to_name": null,
"type": null,
"value": {
"end": 55,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nPANDIT BANARSI DAS BHANOT\n\nVs.\n\nRESPONDENT:"
}
},
{
"from_name": null,
"id": "872bc5b31f84400398c96cfd26977ea0",
"to_name": null,
"type": null,
"value": {
"end": 114,
"labels": [
"PREAMBLE"
],
"start": 55,
"text": "\nTHE STATE OF MADHYA PRADESH& OTHERS(and connected appeals)"
}
},
{
"from_name": null,
"id": "1a2523e5989e4fb6867504d3a35ab2e1",
"to_name": null,
"type": null,
"value": {
"end": 152,
"labels": [
"PREAMBLE"
],
"start": 114,
"text": "\n\nDATE OF JUDGMENT:\n03/04/1958\n\nBENCH:"
}
},
{
"from_name": null,
"id": "65cfcf975bec4da8b9cd3d74ea3c6b3b",
"to_name": null,
"type": null,
"value": {
"end": 177,
"labels": [
"PREAMBLE"
],
"start": 152,
"text": "\nAIYYAR, T.L. VENKATARAMA"
}
},
{
"from_name": null,
"id": "6f0335b0b2d84722808d763cca7ac2cb",
"to_name": null,
"type": null,
"value": {
"end": 1081,
"labels": [
"PREAMBLE"
],
"start": 177,
"text": "\nBENCH:\nAIYYAR, T.L. VENKATARAMA\nBOSE, VIVIAN\nDAS, SUDHI RANJAN (CJ)\nDAS, S.K.\nSARKAR, A.K.\n\nCITATION: 1959 SCR 427\n 1958 AIR 909\n\nACT:\nSales Tax-Building contracts-Tax on supply of materials-\nValidity--Statute Providing for exemption from taxation, but\nalso enabling Government to amend such exemption by\nnotification--Constitutionality-Central Provinces and Berar\nSales Tax Act, 1947 (C.P. & Berar 21 Of 1947), SS. 2, 4(a),\n6(1)(2).\n\nHEADNOTE:\nsection 4(a) of the Central Provinces and Berar Sales Tax\nAct; 1947, provided that every dealer whose turnover\nexceeded certain limits shall be liable to pay tax in\naccordance with the provisions of the Act on all sales\neffected after the commencementof the Act ; and by S. 2(g) Of the Act, \" sale ... means any\ntransfer of property in goods . . . including a transfer of\nproperty in goods made in course of the execution of a\ncontract......"
}
},
{
"from_name": null,
"id": "81592ee74c094c91b39beeeb5cc41dc0",
"to_name": null,
"type": null,
"value": {
"end": 1258,
"labels": [
"PREAMBLE"
],
"start": 1082,
"text": "Under s. 6(1) of the Act no tax was payable\non the sale of goods specified in Sch. 11 to the Act and s.\n6(2) enabled the State Government by notification to amend\nthe schedule."
}
},
{
"from_name": null,
"id": "7d740cb4d4fa4f98ad6d74e6d899a129",
"to_name": null,
"type": null,
"value": {
"end": 1405,
"labels": [
"PREAMBLE"
],
"start": 1259,
"text": "Item 33 in Sch. 11 as amended by Act XVl of\n1949 and as adapted by the Adaptation Order of 195o, was \"\nGoods sold to or by the State Government \"."
}
},
{
"from_name": null,
"id": "de8a4d5569484fc5b96bf4d6bc940521",
"to_name": null,
"type": null,
"value": {
"end": 1462,
"labels": [
"PREAMBLE"
],
"start": 1406,
"text": "In exercise of\nthe power conferred by s. 6(2) of the Act"
}
},
{
"from_name": null,
"id": "77118368283643bab55e9c9d1ab14eb5",
"to_name": null,
"type": null,
"value": {
"end": 2956,
"labels": [
"PREAMBLE"
],
"start": 1462,
"text": ", the Government\nissued a notification on September 18, 1950, amending item\n33 by substituting the words \" Goods sold by the State\nGovernment \".\nThe appellant, a contractor doing business in the\nconstruction of buildings and roads for the Military and\nPublic Works Department in the State of Madhya Pradesh,\nchallenged the validity of the assessment which the\nrespondent proposed to make on the appellant under the\nprovisions of the Central Provinces and Berar Sales Tax Act,\n1947, on the grounds (1) that the Provincial Legislature had\nno authority under Entry 48 Of List II, Sch. VII of the\nGovernment of India Act, 1935, to impose a tax on the supply\nof materials in works contracts and that the provisions of\nthat Central Provinces and Berar Sales Tax Act which sought\n\nto impose a tax thereon treating it as a sale were ultra\nvires, and (2) that he was entitled to exemption under item\n33 in Sch. 11, to tile Act and that the notification of the\nGovernment dated September 18, 1950, withdrawing that\nexemption was bad as being an unconstitutional delegation of\nlegislative authority :\nHeld, that the expression \"sales of goods\" in Entry 48 has\nthe same meaning which it had in the Indian Sale of Goods\nAct, 1930, that in a building contract there is no sale of\nmaterials as such, and that it is therefore ultra vires the\npowers of the Provincial Legislature to impose tax on the\nsupply of materials.\nThe State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd.,\n[1959] S.C.R. 379, followed."
}
},
{
"from_name": null,
"id": "6a5c397fa79847c998f83f6e0328d157",
"to_name": null,
"type": null,
"value": {
"end": 3017,
"labels": [
"PREAMBLE"
],
"start": 2957,
"text": "Per Das C. J., Venkatarama Aiyar, S. K. Das and A. K. Sarkar"
}
},
{
"from_name": null,
"id": "17a178a7ebcc436abd9647f0efcb69c9",
"to_name": null,
"type": null,
"value": {
"end": 3318,
"labels": [
"PREAMBLE"
],
"start": 3017,
"text": "\nJJ-It is not unconstitutional for the legislature to leave\nit to the executive to determine details relating to the\nworking of taxation laws, such as the selection of persons\non whom the tax is to be laid, the rates at which it is to\nbe charged in respect of different classes of goods, and the\nlike."
}
},
{
"from_name": null,
"id": "5d6d3c09318145af83bd6332d6c55edf",
"to_name": null,
"type": null,
"value": {
"end": 3536,
"labels": [
"PREAMBLE"
],
"start": 3319,
"text": "The power conferred on the State Government by s.\n6(2) of the Act to amend the Schedule relating to exemption\nis in consonance with the accepted legislative practice\nrelating to the topic, and is not unconstitutional."
}
},
{
"from_name": null,
"id": "eb1917287f5e4e2c898c83df742cf44d",
"to_name": null,
"type": null,
"value": {
"end": 3905,
"labels": [
"PREAMBLE"
],
"start": 3537,
"text": "Sub-sections (1) and (2) of s. 6 together form integral part\nof a single enactment the object of which is to grant\nexemption from taxation in respect of such goods and to such\nextent as may from time to time be determined by the State\nGovernment, and an\nexemption granted under s. 6(1) is conditional and subject\nto any notification that might be issued under s. 6(2)."
}
},
{
"from_name": null,
"id": "52c9e7e8b53d435cac57ab725c8ca00d",
"to_name": null,
"type": null,
"value": {
"end": 3974,
"labels": [
"PREAMBLE"
],
"start": 3906,
"text": "The\nnotification dated September 18, 1950, is therefore intra\nvires."
}
},
{
"from_name": null,
"id": "dea623f3a80f4dc18d072a3ab238b9d2",
"to_name": null,
"type": null,
"value": {
"end": 4052,
"labels": [
"NONE"
],
"start": 3974,
"text": "\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION: Civil Appeals-Nos.253 to 255 of 1955"
}
},
{
"from_name": null,
"id": "3f7777c53b7b426fa2c6dad1aa983fb8",
"to_name": null,
"type": null,
"value": {
"end": 4197,
"labels": [
"NONE"
],
"start": 4052,
"text": ".\nAppeals from the judgment and decree dated November 30, 1954, of the former Nagpur High Court in Misc. Petitions Nos. 245, 279 and 308 of 1954."
}
},
{
"from_name": null,
"id": "2a4b225a8c054f27afc156a2db258f24",
"to_name": null,
"type": null,
"value": {
"end": 4276,
"labels": [
"NONE"
],
"start": 4197,
"text": "\nN. C. Chatterjee and G. C. Mathur, for the appellant in C.\nA. No. 253 of 1955."
}
},
{
"from_name": null,
"id": "bc790cb052bc4fdf9655d177386006c7",
"to_name": null,
"type": null,
"value": {
"end": 4343,
"labels": [
"NONE"
],
"start": 4276,
"text": "\nG. C. Mathur, for the appellant in C. A. Nos. 254 and 255 of 1955."
}
},
{
"from_name": null,
"id": "15814531878943d9bb6b8d947fae04aa",
"to_name": null,
"type": null,
"value": {
"end": 4483,
"labels": [
"NONE"
],
"start": 4343,
"text": "\nB. Sen, S. B. Sen and 1. N. Shroff, for the respondents in C. A. Nos. 253 and 254 of 1950 and for the State of Madhya Pradesh (Intervener)."
}
},
{
"from_name": null,
"id": "b180d23cd02c4465a9ae178c019aac4b",
"to_name": null,
"type": null,
"value": {
"end": 4631,
"labels": [
"NONE"
],
"start": 4483,
"text": "\nC. K. Daphtary, Solicitor-General of India and R. H.\nDhebar, for the respondents in C. A. No. 255 of 1955 and for the State of Bombay (Intervener)."
}
},
{
"from_name": null,
"id": "af6f05f9fbb24e25b51e32c323f32720",
"to_name": null,
"type": null,
"value": {
"end": 4697,
"labels": [
"NONE"
],
"start": 4631,
"text": "\nN. S. Bindra and T. M. Sen, for the State of Punjab (Intervener)."
}
},
{
"from_name": null,
"id": "52e6cd178c314c1fa2d8d4e3a4070d43",
"to_name": null,
"type": null,
"value": {
"end": 4712,
"labels": [
"NONE"
],
"start": 4698,
"text": "1958. April 3."
}
},
{
"from_name": null,
"id": "a2b9eda3cad7419b991dccc57fb3c755",
"to_name": null,
"type": null,
"value": {
"end": 4812,
"labels": [
"NONE"
],
"start": 4713,
"text": "The judgment of S. R. Das C. J., Venkatarama Aiyar, S. K. Das and A. K. Sarkar JJ. was delivered by"
}
},
{
"from_name": null,
"id": "dd0a2b021ad548ffb50f8b0744f7efc3",
"to_name": null,
"type": null,
"value": {
"end": 4833,
"labels": [
"NONE"
],
"start": 4813,
"text": "Venkatarama Aiyar J."
}
},
{
"from_name": null,
"id": "b990e10700d446d083bccf09b044f0c9",
"to_name": null,
"type": null,
"value": {
"end": 4872,
"labels": [
"NONE"
],
"start": 4834,
"text": "Bose J. delivered a separate judgment."
}
},
{
"from_name": null,
"id": "5761ca1d53364f4a9fab6dbaf3c87443",
"to_name": null,
"type": null,
"value": {
"end": 5229,
"labels": [
"FAC"
],
"start": 4872,
"text": "\nVENKATARAMA AIYAR J.-These are appeals against the judgment of the High Court of Nagpur in writ applications filed by the appellants impugning the validity of certain provisions of the Central Provinces and Berar Sales Tax Act, 1947 (C.\nP. & Berar 21 of 1947), hereinafter referred to as the Act, imposing sales tax on materials used in construction works."
}
},
{
"from_name": null,
"id": "508d446a87b94dcfafacafbaeb545384",
"to_name": null,
"type": null,
"value": {
"end": 5295,
"labels": [
"NONE"
],
"start": 5229,
"text": "\nIt will be convenient to refer to these provisions at this stage."
}
},
{
"from_name": null,
"id": "78df7143eb75460f919b60d74b7cd2d4",
"to_name": null,
"type": null,
"value": {
"end": 5657,
"labels": [
"STA"
],
"start": 5296,
"text": "Section 2(b) of the Act defines \" contract \" as including \" any agreement for carrying out for cash or deferred payment or other valuable consideration the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property or the installation or repair of any machineryaffixed to a building or other immovable property \"."
}
},
{
"from_name": null,
"id": "c20daa740b494bc88c12ce2e2b2c73f6",
"to_name": null,
"type": null,
"value": {
"end": 5770,
"labels": [
"STA"
],
"start": 5658,
"text": "Section 2(c) of the Act defines \" dealer \" as including a person who carries on the business of supplying goods."
}
},
{
"from_name": null,
"id": "064caed0f0b444a694215d66cfddf684",
"to_name": null,
"type": null,
"value": {
"end": 5967,
"labels": [
"STA"
],
"start": 5771,
"text": "In s. 2 (d), \"\ngoods \" are defined as including \" all materials, articles and commodities whether or not to be used in the construction, fitting out, improvement or repair of immovable property \"."
}
},
{
"from_name": null,
"id": "9e238bcd9f0749a09ee0bb576f65468b",
"to_name": null,
"type": null,
"value": {
"end": 6391,
"labels": [
"STA"
],
"start": 5968,
"text": "Section 2(g) defines sale \" as follows: \" \" Sale \" with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods made in course of the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge; and the word 'purchase' shall be construed accordingly."
}
},
{
"from_name": null,
"id": "4042bbc43dad4e2e8abba47588d27ea8",
"to_name": null,
"type": null,
"value": {
"end": 6690,
"labels": [
"STA"
],
"start": 6392,
"text": "\"\nSection 2(h) defines \" sale price \" as including the amount payable to a dealer as valuable consideration for the carrying out of any contract, less such portion, representing the proportion of the cost of labour to the cost of materials, used in carrying out such contract, as may be prescribed."
}
},
{
"from_name": null,
"id": "a111238f653a4048adaa7c0bc2650402",
"to_name": null,
"type": null,
"value": {
"end": 6883,
"labels": [
"STA"
],
"start": 6691,
"text": "\" Turnover \" is defined in s. 2(j) as including the aggregate amount of the sale price received or receivable by a dealer in respect of the supply of goods in the carrying out of any contract."
}
},
{
"from_name": null,
"id": "24762ce95e154674a4d19102568d505d",
"to_name": null,
"type": null,
"value": {
"end": 7113,
"labels": [
"STA"
],
"start": 6884,
"text": "The charging section is s. 4(a), and it provides that dealers whose turnover exceeded certain limits shall be liable to pay tax in accordance with the provisions of the Act on all sales effected after the commencement of the Act."
}
},
{
"from_name": null,
"id": "9c551ee400aa44d391440285b5742d73",
"to_name": null,
"type": null,
"value": {
"end": 7612,
"labels": [
"STA"
],
"start": 7114,
"text": "Rule 4 of the Sales Tax Rules, 1947, provides that \" in calculating the sale price for the purpose of sub-cl. (ii) of cl. (h) of s.\n2, a dealer may be permitted to deduct from the amounts payable to him as valuable consideration for carrying out a contract, a sum not exceeding such percentages as may be fixed by the Commissioner for different areas subject to the following maximum percentages \", and then follows a scale of percentages to be allowed in respect of different classes of contracts."
}
},
{
"from_name": null,
"id": "af278bb41c124992be8d81a194e709ba",
"to_name": null,
"type": null,
"value": {
"end": 7943,
"labels": [
"FAC"
],
"start": 7612,
"text": "\nActing on these provisions, the authorities constituted under the Act called upon the contractors within the State to furnish returns in respect of their receipts from contract works for the purpose of assessment of sales tax, to which the appellants replied by instituting the proceedings, out of which the present appeals arise."
}
},
{
"from_name": null,
"id": "d836287b4ffe430dab4752611645feef",
"to_name": null,
"type": null,
"value": {
"end": 8274,
"labels": [
"FAC"
],
"start": 7944,
"text": "The appellant in Civil Appeal No. 253 of 1955 is a contractor doing business in the construction of buildings and roads for the Military and Public Works Department in the State of Madhya Pradesh, and he filed M. P. No. 245 of 1954 challenging the validity of the assessment which the respondents proposed to make, on two grounds."
}
},
{
"from_name": null,
"id": "76e043327d8940fc8cbc40496735356c",
"to_name": null,
"type": null,
"value": {
"end": 8899,
"labels": [
"ARG_PETITIONER"
],
"start": 8275,
"text": "He contended firstly that the Provincial Legislature had authority under Entry 48 of List 11, Sch. VII of the Government of India Act, 1935, to impose tax only on sale of goods, that the supply of materials in works contracts was not a sale within that Entry, and that the provisions of the Act, which sought to impose a tax thereon treating it as a sale, were therefore ultra vires; and secondly that he was entitled to exemption under item 33 in Sch. 11 to the Act as enacted by Act XVI of 1949, and that the notification of the Government dated September 18, 1950, withdrawing that exemption was unconstitutional and void"
}
},
{
"from_name": null,
"id": "b42d8bd53cf343d090eadf0af5d2ddde",
"to_name": null,
"type": null,
"value": {
"end": 9226,
"labels": [
"STA"
],
"start": 8899,
"text": ". To appreciate this contention, it is necessary to refer to s. 6 of the Act, which is as follows: 6 (1) \" No tax shall be payable under this Act on the sale of goods specified in the second column of Schedule 11, subject to the conditions and exceptions, if any, set out in the corresponding entry in the third column thereof."
}
},
{
"from_name": null,
"id": "1ba401fef8ce4d89b642f0d27af373fa",
"to_name": null,
"type": null,
"value": {
"end": 9537,
"labels": [
"STA"
],
"start": 9226,
"text": "\n(2) The State Government may, after giving by notification not less than one month's notice of their intention so to do, by a notification after the expiry of the period of notice mentioned in the first notification amend either Schedule, and thereupon such Schedule shall be deemed to be amended accordingly.\""
}
},
{
"from_name": null,
"id": "290b000380954e65b0f2b0a9ea3f63ed",
"to_name": null,
"type": null,
"value": {
"end": 9611,
"labels": [
"ANALYSIS"
],
"start": 9537,
"text": "\nItem 33 in Sch. 11 as originally enacted was \" Goods sold by the Crown \"."
}
},
{
"from_name": null,
"id": "bb57c18a8049401f991bca47cffe793f",
"to_name": null,
"type": null,
"value": {
"end": 9718,
"labels": [
"ANALYSIS"
],
"start": 9612,
"text": "This was amended by Act XVI of 1949 by substituting for the above words \" Goods sold to or by the Crown \"."
}
},
{
"from_name": null,
"id": "f3c6b9aa5fa2419eb8c5f3f938764798",
"to_name": null,
"type": null,
"value": {
"end": 9872,
"labels": [
"ANALYSIS"
],
"start": 9719,
"text": "By an Adaptation Order of 1950, the words \"State Government\" were substituted for \"Crown\", and item 33 became \"Goods sold to or by the State Government \""
}
},
{
"from_name": null,
"id": "ef1823ee19ad49819a66b4095c3b7d89",
"to_name": null,
"type": null,
"value": {
"end": 10127,
"labels": [
"ANALYSIS"
],
"start": 9873,
"text": "In exercise ofthe power conferred by s. 6 (2) of the Act, the State issued a notification on September 18, 1950, amending item 33 by substituting for the words \" Goods sold to or by the State Government \" the words \" Goods sold by the State Government \"."
}
},
{
"from_name": null,
"id": "e4fbbcf67bb847deab9ede98ff23d63a",
"to_name": null,
"type": null,
"value": {
"end": 10333,
"labels": [
"ANALYSIS"
],
"start": 10128,
"text": "The resultant position is that the appellant who was entitled to exemption under Act XVI of 1949 in respect of goods sold to the Government could no longer claim it by reason of the notification aforesaid."
}
},
{
"from_name": null,
"id": "a96ada2601c548cd8c04712d8015371f",
"to_name": null,
"type": null,
"value": {
"end": 10530,
"labels": [
"ANALYSIS"
],
"start": 10334,
"text": "Now, the ground of his attack was that it was not open to the Government in exercise of the authority delegated to it under s. 6 (2) of the Act to modify or alter what the Legislature had enacted."
}
},
{
"from_name": null,
"id": "5a1a208a11714016983061853765eb39",
"to_name": null,
"type": null,
"value": {
"end": 10770,
"labels": [
"ARG_PETITIONER"
],
"start": 10530,
"text": "\nThe appellant accordingly claimed that the proceedings which the respondents proposed to take for assessment of sales tax were incompetent, and prayed that an appropriate writ might be issued restraining them from proceeding with the same."
}
},
{
"from_name": null,
"id": "5e5b86aa1918478a9229ffc8b8c44d66",
"to_name": null,
"type": null,
"value": {
"end": 11051,
"labels": [
"ANALYSIS"
],
"start": 10771,
"text": "In Civil Appeal No. 254 of 1955, the appellants are the Jabalpur Contractors' Association, which is a registered body and certain contractors, and they filed M. P. No. 279 of 1954 questioning the validity of the proposed assessment on the same grounds as in M. P. No. 245 of 1954."
}
},
{
"from_name": null,
"id": "fa789433cd194c62a5ac77cb9177d85d",
"to_name": null,
"type": null,
"value": {
"end": 11332,
"labels": [
"ANALYSIS"
],
"start": 11052,
"text": "The appellant in Civil Appeal No. 255 of 1955, is the Madhya Pradesh Contractors' Association, Nagpur, which is again a registered body, and it filed M. P. No. 305 of 1954, challenging the legality of the proceedings for assessment on the same grounds as in M. P. No. 245 of 1954."
}
},
{
"from_name": null,
"id": "1269065726a44040a5cde0e08cafeaf9",
"to_name": null,
"type": null,
"value": {
"end": 11798,
"labels": [
"ANALYSIS"
],
"start": 11333,
"text": "All these three petitions were heard together, and by their judgment dated November 30, 1954, the learned Judges held that the expression \" sale of goods\" in Entry 48 was wide enough to coverall transactions in which property in the moveables passed from one person to another for money, and that, accordingly, in a building contract there was a sale within Entry 48 of the materials used therein, and that the provisions of the Act imposing tax thereon were valid."
}
},
{
"from_name": null,
"id": "70c715673d6e46ecad4f1c7d262d5f64",
"to_name": null,
"type": null,
"value": {
"end": 12199,
"labels": [
"ANALYSIS"
],
"start": 11799,
"text": "But the learned Judges also held that the tax could be levied only on the actual value of the materials to be determined on an enquiry into the matter, and that the definition of \"\nprice \" in s. 2 (h) (ii) and r. 4 framed pursuant thereto were ultra viresin that they laid down artificial rules for fixing the same by deducting certain percentages from out of the total receipts on account of labour."
}
},
{
"from_name": null,
"id": "b6bcc50d6b2e4a34902489d65e758877",
"to_name": null,
"type": null,
"value": {
"end": 12350,
"labels": [
"ANALYSIS"
],
"start": 12200,
"text": "As regards the notification dated September 18, 1950, the learned Judges held that it was within the authority conferred by the statute and was valid."
}
},
{
"from_name": null,
"id": "7430473a7404449abfb15b4c7207a15b",
"to_name": null,
"type": null,
"value": {
"end": 12519,
"labels": [
"ANALYSIS"
],
"start": 12351,
"text": "In the result, the impugned provisions of the Act were held to be valid except as to the definition of \" price \" in s. 2 (h) (ii) and r. 4 of the Sales Tax Rules, 1947."
}
},
{
"from_name": null,
"id": "e83bcbdeafc947e99f9cee207943baf4",
"to_name": null,
"type": null,
"value": {
"end": 12672,
"labels": [
"ANALYSIS"
],
"start": 12519,
"text": "\nIt is against this judgment that the above appeals have been preferred on a certificate granted by the High Court under Art. 132(1) of the Constitution."
}
},
{
"from_name": null,
"id": "4f02a1e136a44b18a766faac7b96dd60",
"to_name": null,
"type": null,
"value": {
"end": 13094,
"labels": [
"ANALYSIS"
],
"start": 12672,
"text": "\nTwo contentions have been urged in support of the appeals : (1) that the Provincial Legislature has no authority in exercise of its power under Entry 48 to impose a tax on the supply of materials in works contracts as such supply cannot be said to be also of those materials within that Entry ; and (2) that the notification dated September 18, 1950, is bad as being an constitutional delegation of legislative authority."
}
},
{
"from_name": null,
"id": "641d8fee3b5044febef006b2e30ae06f",
"to_name": null,
"type": null,
"value": {
"end": 13590,
"labels": [
"PRE_RELIED"
],
"start": 13094,
"text": "\nAs regards the first contention, the question is now concluded by the decision of this Court in The State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. (1) in which it has been held that the expression \" sale of goods \" in Entry 48 has the same meaning which it has in the Indian Sale of Goods Act, 1930, that in a building contract there is no sale of materials as such, and that it is therefore ultra vires the powers of the Provincial Legislature to impose tax on the supply of materials."
}
},
{
"from_name": null,
"id": "145f19b578e24dfbad8181fb0335021f",
"to_name": null,
"type": null,
"value": {
"end": 14310,
"labels": [
"ARG_RESPONDENT"
],
"start": 13591,
"text": "Mr. B. Sen appearing for the respondents has argued that even if the expression \"\nsale of goods \" in Entry 48 is construed in the sense which it has in the Sale of Goods Act, that might render the impugned provisions of the Act ultra vires only in respect of a building contract which is one and indivisible, that there might be contracts which might consist of two distinct agreements, one for the sale of materials and another, for work and labour, and that in such a case, it would be competent to the State to impose tax on the sale of materials even construing that word in its (1) [1959] S.C.R. 379.434 narrow sense, and that these are matters which must be left to be investigated by the appropriate authorities."
}
},
{
"from_name": null,
"id": "82bd7e11e60f420fabc349b6bf03e10b",
"to_name": null,
"type": null,
"value": {
"end": 14932,
"labels": [
"ANALYSIS"
],
"start": 14311,
"text": "That undoubtedly is the correct legal position as observed in The State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. (1), and accordingly, when a question arises as to whether a particular works contract could be charged to sales tax, it will be for the authorities under the Act to determine whether the agreement in question is, on its true construction, a combination of an agreement to sell and an agreement to work, and if they come to the conclusion that such is its character, then it will be open to them to pro- ceed against that part of it which is a contract for the sale of goods, and impose tax thereon."
}
},
{
"from_name": null,
"id": "4925832d3eb945cd81afc289d74bd960",
"to_name": null,
"type": null,
"value": {
"end": 15100,
"labels": [
"ANALYSIS"
],
"start": 14932,
"text": "\n(2) We have next to consider the contention that the notification dated September 18, 1950, is bad as constituting an unconstitutional delegation of legislative power."
}
},
{
"from_name": null,
"id": "67226afd66f74c0186a1f26d81b9b5ec",
"to_name": null,
"type": null,
"value": {
"end": 15490,
"labels": [
"ANALYSIS"
],
"start": 15101,
"text": "In the view which we have expressed above that there is in a works contract no sale of materials as such, it might seem academic to enter into a discussion of this question ; but as there may be building contracts in which it is possible to spell out agreements for the sale of materials as distinct from contracts for work and labour, it becomes necessary to express our decision thereon."
}
},
{
"from_name": null,
"id": "a221e2d191ed4520bebba4024ce6c9c3",
"to_name": null,
"type": null,
"value": {
"end": 15852,
"labels": [
"ARG_PETITIONER"
],
"start": 15491,
"text": "Mr.\nChatterjee appearing for the appellant in Civil Appeal No.\n253 of 1955 contends that the notification in question is ultra vires because it is a matter of policy whether exemption should be granted under the Act or not, and a decision on that question must be taken only by the Legis- lature, and cannot be left to the determination of an outside authority."
}
},
{
"from_name": null,
"id": "7689fa72fb1a4f0da68b0a7e66d805ca",
"to_name": null,
"type": null,
"value": {
"end": 16187,
"labels": [
"ARG_PETITIONER"
],
"start": 15853,
"text": "While a power to execute a law, it was argued, could be delegated to the executive, the power to make it must be exercised by the Legislature itself, and reliance was placed on the observations in Hampton J R & Co.\nv. United States (2), Panama Refining Co. v. Ryan (3), and Schechter v. United States (4), as supporting this position."
}
},
{
"from_name": null,
"id": "14bd9cf454c9445ea800f13d87152b13",
"to_name": null,
"type": null,
"value": {
"end": 16991,
"labels": [
"ARG_PETITIONER"
],
"start": 16187,
"text": "\nIt was also contended that the grant of a power to an outside authority to (1) [1959] S.C.R. 379.\n(2) 276 U. S. 394; 72 L. Ed. 624, 629.\n(3) 293 U.S. 388; 79 L. Ed. 446, 458.\n(4) 295 U.S. 495; 79 L. Ed. 1570.repeal or modify a provision in a statute passed by the legislature was unconstitutional, and that, in consequence, the impugned notification was bad in that, in reversal of the policy laid down by the legislature in Act XVI of 1949 that sales to Government should be excluded from the operation of the Act, it withdrew the exemption which had been granted thereunder, and the observations in re The Delhi Laws Act, 1912 etc. (1), and the decision in Rajnarain Singh v. The Chairman, Patna Administration Committee, Patna and another (2), were strongly relied on as establishing this contention."
}
},
{
"from_name": null,
"id": "826c346c8e0e497fab136d39234c667c",
"to_name": null,
"type": null,
"value": {
"end": 17276,
"labels": [
"ARG_PETITIONER"
],
"start": 16992,
"text": "Mr. N. C. Chatterjee particularly relied on the following observations of Bose J. at p. 301 in Rajnarain Singh's case (2) : \" In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature."
}
},
{
"from_name": null,
"id": "67b466fdcd4d4b9a866988f81806ee11",
"to_name": null,
"type": null,
"value": {
"end": 17525,
"labels": [
"ARG_PETITIONER"
],
"start": 17277,
"text": "Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out above; it cannot include a change of policy.\""
}
},
{
"from_name": null,
"id": "4aaaf89851d94877b4300aee87cab430",
"to_name": null,
"type": null,
"value": {
"end": 17726,
"labels": [
"ANALYSIS"
],
"start": 17525,
"text": "\nOn these observations, the point for determination is whether the impugned notification relates to what may be said to be an essential feature of the law, and whether it involves any change of policy."
}
},
{
"from_name": null,
"id": "976b530e4bcc4c00a434df47c91e4484",
"to_name": null,
"type": null,
"value": {
"end": 18060,
"labels": [
"ANALYSIS"
],
"start": 17727,
"text": "Now, the authorities are clear that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like."
}
},
{
"from_name": null,
"id": "0725021bf83a4943ae4ada7ad264cf65",
"to_name": null,
"type": null,
"value": {
"end": 18343,
"labels": [
"PRE_RELIED"
],
"start": 18060,
"text": "\nIn Powell v. Appollo Candle Company Limited the question arose as to whether s. 133 of the Customs Regulation Act of 1879 of New South Wales which conferred a power on the Governor to impose tax on certain articles of import was an unconstitutional delegation of legislative powers."
}
},
{
"from_name": null,
"id": "df6fb8eaa0a34406b59d7b8640b47346",
"to_name": null,
"type": null,
"value": {
"end": 18618,
"labels": [
"PRE_RELIED"
],
"start": 18344,
"text": "In holding that it was not, the Privy Council observed: \"It is argued that the tax in question has been (1) [1951] S.C.R. 747, 787, 982, 984- (3) (1885) 10 A.C. 282.\n(2) [1955] 1 S.C.R. 290.imposed by the Governor and not by the Legislature who alone had power to impose it."
}
},
{
"from_name": null,
"id": "5e18963caae34cd5ab7b308c041b8bb3",
"to_name": null,
"type": null,
"value": {
"end": 18746,
"labels": [
"PRE_RELIED"
],
"start": 18619,
"text": "But the duties levied under the Order-in-Council are really levied by the authority of the Act under which the Order is issued."
}
},
{
"from_name": null,
"id": "3e52f918510445b784efa378ca9786c0",
"to_name": null,
"type": null,
"value": {
"end": 18937,
"labels": [
"PRE_RELIED"
],
"start": 18747,
"text": "The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him."
}
},
{
"from_name": null,
"id": "cc66a7204fd246d9b29f25a95cfdbd90",
"to_name": null,
"type": null,
"value": {
"end": 19148,
"labels": [
"PRE_RELIED"
],
"start": 18938,
"text": "In these circumstances, their Lordships are of opinion that the judgment of the Supreme Court was wrong in declaring Section 133 of the Customs Regulation Act of 1879 to be beyond the power of the Legislature.\""
}
},
{
"from_name": null,
"id": "6b7f34bf02fa4b76905713d527673be0",
"to_name": null,
"type": null,
"value": {
"end": 19296,
"labels": [
"PRE_RELIED"
],
"start": 19148,
"text": "\nIn Syed Mohamed & Co. v. The State of Madras (1), the question was as to the vires of rules 4 and 16 framed under the Madras General Sales Tax Act."
}
},
{
"from_name": null,
"id": "73122216b0c247bca086b57e45a5a63b",
"to_name": null,
"type": null,
"value": {
"end": 19616,
"labels": [
"PRE_RELIED"
],
"start": 19297,
"text": "Section 5 (vi) of that Act had left it to the rule-making authority to determine at which single point in the series of sales by successive dealers the tax should be levied, and pursuant thereto, rules 4 and 16 had provided that it was the purchaser who was liable to pay the tax in respect of sales of hides and skins."
}
},
{
"from_name": null,
"id": "936958ea42654baa940065ab7c197198",
"to_name": null,
"type": null,
"value": {
"end": 19843,
"labels": [
"PRE_RELIED"
],
"start": 19617,
"text": "The validity of the rules was attacked on the ground that it was only the legislature that \"as competent to decide who shall be taxed, and that the determination of that question by the rule-making authorities was ultra vires."
}
},
{
"from_name": null,
"id": "b8bcc0a8a51d44e189eebd1054fb3810",
"to_name": null,
"type": null,
"value": {
"end": 20027,
"labels": [
"PRE_RELIED"
],
"start": 19844,
"text": "The Madras High Court rejected this conntetion, and held on a review of the authorities that the delegation of authority under s. 5 (vi) war, within permissible constitutional limits."
}
},
{
"from_name": null,
"id": "7bee643c859b4e50b17eb4cad2e166df",
"to_name": null,
"type": null,
"value": {
"end": 20463,
"labels": [
"PRE_RELIED"
],
"start": 20027,
"text": "\nIn Hampton J. R. & Co. v. United States (2), which was cited on behalf of the appellant, the question arose whether s.\n315(b) of the Tariff Act, 1922, under which the President had been empowered to make such increases and decreases in the rates of duty as were found necessary for carrying out the policies declared in the statute was an unconstitutional delegation, and the decision was that such delegation was not unconstitutional."
}
},
{
"from_name": null,
"id": "76e6f68861fa405280b1dc2c8658f14f",
"to_name": null,
"type": null,
"value": {
"end": 20707,
"labels": [
"ANALYSIS"
],
"start": 20464,
"text": "We are therefore of the opinion that the power conferred on the State Government by s. 6(2) to amend the schedule relating to exemption is in consonance with the accepted legislative practice relating to the topic, and is not unconstitutional."
}
},
{
"from_name": null,
"id": "6bafcf6afd79436bb721a957ac0bb515",
"to_name": null,
"type": null,
"value": {
"end": 20896,
"labels": [
"ANALYSIS"
],
"start": 20707,
"text": "\n(1) (1952) 3 S.T.C. 367 (2) 276 U.S. 394 ; 72 L. Ed. 624, 629.The contention of the appellant that the notification in question is ultra vires must, in our opinion, fail on another ground."
}
},
{
"from_name": null,
"id": "7ff00c687e2540c8bc0fd4b5782f4550",
"to_name": null,
"type": null,
"value": {
"end": 21260,
"labels": [
"ANALYSIS"
],
"start": 20897,
"text": "The basic assumption on which the argument of the appellant proceeds is that the power to amend the schedule conferred on the Government under s. 6(2) is wholly independent of the grant of exemption under s. 6(1) of the Act, and that, in consequence, while an exemption under s.\n6(1) would stand, an amendment thereof by a notification under s. 6(2) might be bad."
}
},
{
"from_name": null,
"id": "9ce467f780054c27b497b1cff47a2130",
"to_name": null,
"type": null,
"value": {
"end": 21336,
"labels": [
"ANALYSIS"
],
"start": 21261,
"text": "But that, in our opinion, is not the correct interpretation of the section."
}
},
{
"from_name": null,
"id": "7c47d108fcc6435285e8a0ff02e909de",
"to_name": null,
"type": null,
"value": {
"end": 21574,
"labels": [
"ANALYSIS"
],
"start": 21337,
"text": "The two sub- sections together form integral parts of a single enactment, the object of which is to grant exemption from taxation in respect of such goods and to such extent as may from time to time be determined by the State Government."
}
},
{
"from_name": null,
"id": "b00a7bdb295b4fe1ad99132d24fb3c53",
"to_name": null,
"type": null,
"value": {
"end": 21769,
"labels": [
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],
"start": 21575,
"text": "Section 6(1), therefore, cannot have an operation independent of s. 6(2), and an exemption granted thereunder is conditional and sub- ject to any modification that might be issued under s. 6(2)."
}
},
{
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"id": "c8cd9d721c4240e5ba7aceba4f217a34",
"to_name": null,
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"value": {
"end": 21851,
"labels": [
"RATIO"
],
"start": 21769,
"text": "\nIn this view, the impugned notification is intra vires and not open to challenge."
}
},
{
"from_name": null,
"id": "669ea02f7f5d4b118e73a9e874eb1118",
"to_name": null,
"type": null,
"value": {
"end": 22285,
"labels": [
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],
"start": 21851,
"text": "\nBut on our finding on the first question that the impugned provisions of the Act are ultra vires the powers of the Provincial Legislature under Entry 48 in List 11 in the seventh Schedule, we should set aside the orders of the Court below, and direct that the respondents be restrained from enforcing the provisions of the Central Provinces and Berar Sales Tax Act, 1947, in so far as they seek to impose a tax on construction works."
}
},
{
"from_name": null,
"id": "e87c990bf647421eb43525d40f82cb72",
"to_name": null,
"type": null,
"value": {
"end": 22863,
"labels": [
"RATIO"
],
"start": 22286,
"text": "It should be made clear, however, in accordance with what we have already stated, that the prohibition against imposition of tax is only in respect of contracts which are single and indivisible and not of contracts which are a combination of distinct contracts for sale of materials and for work, and that nothing that we have said in this judgment shall bar the sales tax authorities from deciding \"whether a particular contract falls within one category or the other and imposing a tax on the agreement of sale of materials, where the contract belongs to the latter category."
}
},
{
"from_name": null,
"id": "f6e7099dfab64dd5a4daf386a73144d4",
"to_name": null,
"type": null,
"value": {
"end": 22913,
"labels": [
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],
"start": 22864,
"text": "The parties will bear their own costs throughout,"
}
},
{
"from_name": null,
"id": "8274a6f1e28a46eb9d3ab32162036f28",
"to_name": null,
"type": null,
"value": {
"end": 23176,
"labels": [
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],
"start": 22913,
"text": "BOSE J.-I agree except that I prefer not to express an opinion about the validity of the power conferred on the State Government by s. 6(2) of the Central Provinces and Berar Sales Tax Act, 1947, to amend the schedule in the way in which it has been amended here."
}
},
{
"from_name": null,
"id": "5a1c73f8b7194c75a20987289c6142a0",
"to_name": null,
"type": null,
"value": {
"end": 23221,
"labels": [
"RPC"
],
"start": 23177,
"text": "I would leave that open for future decision."
}
},
{
"from_name": null,
"id": "10541018ea8c441e90d1e4025ab4e060",
"to_name": null,
"type": null,
"value": {
"end": 23239,
"labels": [
"RPC"
],
"start": 23221,
"text": "\n Appeals allowed."
}
}
]
}
] | 4,185 | {
"text": "PETITIONER:\nPANDIT BANARSI DAS BHANOT\n\nVs.\n\nRESPONDENT:\nTHE STATE OF MADHYA PRADESH& OTHERS(and connected appeals)\n\nDATE OF JUDGMENT:\n03/04/1958\n\nBENCH:\nAIYYAR, T.L. VENKATARAMA\nBENCH:\nAIYYAR, T.L. VENKATARAMA\nBOSE, VIVIAN\nDAS, SUDHI RANJAN (CJ)\nDAS, S.K.\nSARKAR, A.K.\n\nCITATION: 1959 SCR 427\n 1958 AIR 909\n\nACT:\nSales Tax-Building contracts-Tax on supply of materials-\nValidity--Statute Providing for exemption from taxation, but\nalso enabling Government to amend such exemption by\nnotification--Constitutionality-Central Provinces and Berar\nSales Tax Act, 1947 (C.P. & Berar 21 Of 1947), SS. 2, 4(a),\n6(1)(2).\n\nHEADNOTE:\nsection 4(a) of the Central Provinces and Berar Sales Tax\nAct; 1947, provided that every dealer whose turnover\nexceeded certain limits shall be liable to pay tax in\naccordance with the provisions of the Act on all sales\neffected after the commencementof the Act ; and by S. 2(g) Of the Act, \" sale ... means any\ntransfer of property in goods . . . including a transfer of\nproperty in goods made in course of the execution of a\ncontract...... Under s. 6(1) of the Act no tax was payable\non the sale of goods specified in Sch. 11 to the Act and s.\n6(2) enabled the State Government by notification to amend\nthe schedule. Item 33 in Sch. 11 as amended by Act XVl of\n1949 and as adapted by the Adaptation Order of 195o, was \"\nGoods sold to or by the State Government \". In exercise of\nthe power conferred by s. 6(2) of the Act, the Government\nissued a notification on September 18, 1950, amending item\n33 by substituting the words \" Goods sold by the State\nGovernment \".\nThe appellant, a contractor doing business in the\nconstruction of buildings and roads for the Military and\nPublic Works Department in the State of Madhya Pradesh,\nchallenged the validity of the assessment which the\nrespondent proposed to make on the appellant under the\nprovisions of the Central Provinces and Berar Sales Tax Act,\n1947, on the grounds (1) that the Provincial Legislature had\nno authority under Entry 48 Of List II, Sch. VII of the\nGovernment of India Act, 1935, to impose a tax on the supply\nof materials in works contracts and that the provisions of\nthat Central Provinces and Berar Sales Tax Act which sought\n\nto impose a tax thereon treating it as a sale were ultra\nvires, and (2) that he was entitled to exemption under item\n33 in Sch. 11, to tile Act and that the notification of the\nGovernment dated September 18, 1950, withdrawing that\nexemption was bad as being an unconstitutional delegation of\nlegislative authority :\nHeld, that the expression \"sales of goods\" in Entry 48 has\nthe same meaning which it had in the Indian Sale of Goods\nAct, 1930, that in a building contract there is no sale of\nmaterials as such, and that it is therefore ultra vires the\npowers of the Provincial Legislature to impose tax on the\nsupply of materials.\nThe State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd.,\n[1959] S.C.R. 379, followed.\nPer Das C. J., Venkatarama Aiyar, S. K. Das and A. K. Sarkar\nJJ-It is not unconstitutional for the legislature to leave\nit to the executive to determine details relating to the\nworking of taxation laws, such as the selection of persons\non whom the tax is to be laid, the rates at which it is to\nbe charged in respect of different classes of goods, and the\nlike. The power conferred on the State Government by s.\n6(2) of the Act to amend the Schedule relating to exemption\nis in consonance with the accepted legislative practice\nrelating to the topic, and is not unconstitutional.\nSub-sections (1) and (2) of s. 6 together form integral part\nof a single enactment the object of which is to grant\nexemption from taxation in respect of such goods and to such\nextent as may from time to time be determined by the State\nGovernment, and an\nexemption granted under s. 6(1) is conditional and subject\nto any notification that might be issued under s. 6(2). The\nnotification dated September 18, 1950, is therefore intra\nvires.\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION: Civil Appeals-Nos.253 to 255 of 1955.\nAppeals from the judgment and decree dated November 30, 1954, of the former Nagpur High Court in Misc. Petitions Nos. 245, 279 and 308 of 1954.\nN. C. Chatterjee and G. C. Mathur, for the appellant in C.\nA. No. 253 of 1955.\nG. C. Mathur, for the appellant in C. A. Nos. 254 and 255 of 1955.\nB. Sen, S. B. Sen and 1. N. Shroff, for the respondents in C. A. Nos. 253 and 254 of 1950 and for the State of Madhya Pradesh (Intervener).\nC. K. Daphtary, Solicitor-General of India and R. H.\nDhebar, for the respondents in C. A. No. 255 of 1955 and for the State of Bombay (Intervener).\nN. S. Bindra and T. M. Sen, for the State of Punjab (Intervener).\n1958. April 3. The judgment of S. R. Das C. J., Venkatarama Aiyar, S. K. Das and A. K. Sarkar JJ. was delivered by Venkatarama Aiyar J. Bose J. delivered a separate judgment.\nVENKATARAMA AIYAR J.-These are appeals against the judgment of the High Court of Nagpur in writ applications filed by the appellants impugning the validity of certain provisions of the Central Provinces and Berar Sales Tax Act, 1947 (C.\nP. & Berar 21 of 1947), hereinafter referred to as the Act, imposing sales tax on materials used in construction works.\nIt will be convenient to refer to these provisions at this stage. Section 2(b) of the Act defines \" contract \" as including \" any agreement for carrying out for cash or deferred payment or other valuable consideration the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property or the installation or repair of any machineryaffixed to a building or other immovable property \". Section 2(c) of the Act defines \" dealer \" as including a person who carries on the business of supplying goods. In s. 2 (d), \"\ngoods \" are defined as including \" all materials, articles and commodities whether or not to be used in the construction, fitting out, improvement or repair of immovable property \". Section 2(g) defines sale \" as follows: \" \" Sale \" with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods made in course of the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge; and the word 'purchase' shall be construed accordingly. \"\nSection 2(h) defines \" sale price \" as including the amount payable to a dealer as valuable consideration for the carrying out of any contract, less such portion, representing the proportion of the cost of labour to the cost of materials, used in carrying out such contract, as may be prescribed. \" Turnover \" is defined in s. 2(j) as including the aggregate amount of the sale price received or receivable by a dealer in respect of the supply of goods in the carrying out of any contract. The charging section is s. 4(a), and it provides that dealers whose turnover exceeded certain limits shall be liable to pay tax in accordance with the provisions of the Act on all sales effected after the commencement of the Act. Rule 4 of the Sales Tax Rules, 1947, provides that \" in calculating the sale price for the purpose of sub-cl. (ii) of cl. (h) of s.\n2, a dealer may be permitted to deduct from the amounts payable to him as valuable consideration for carrying out a contract, a sum not exceeding such percentages as may be fixed by the Commissioner for different areas subject to the following maximum percentages \", and then follows a scale of percentages to be allowed in respect of different classes of contracts.\nActing on these provisions, the authorities constituted under the Act called upon the contractors within the State to furnish returns in respect of their receipts from contract works for the purpose of assessment of sales tax, to which the appellants replied by instituting the proceedings, out of which the present appeals arise. The appellant in Civil Appeal No. 253 of 1955 is a contractor doing business in the construction of buildings and roads for the Military and Public Works Department in the State of Madhya Pradesh, and he filed M. P. No. 245 of 1954 challenging the validity of the assessment which the respondents proposed to make, on two grounds. He contended firstly that the Provincial Legislature had authority under Entry 48 of List 11, Sch. VII of the Government of India Act, 1935, to impose tax only on sale of goods, that the supply of materials in works contracts was not a sale within that Entry, and that the provisions of the Act, which sought to impose a tax thereon treating it as a sale, were therefore ultra vires; and secondly that he was entitled to exemption under item 33 in Sch. 11 to the Act as enacted by Act XVI of 1949, and that the notification of the Government dated September 18, 1950, withdrawing that exemption was unconstitutional and void. To appreciate this contention, it is necessary to refer to s. 6 of the Act, which is as follows: 6 (1) \" No tax shall be payable under this Act on the sale of goods specified in the second column of Schedule 11, subject to the conditions and exceptions, if any, set out in the corresponding entry in the third column thereof.\n(2) The State Government may, after giving by notification not less than one month's notice of their intention so to do, by a notification after the expiry of the period of notice mentioned in the first notification amend either Schedule, and thereupon such Schedule shall be deemed to be amended accordingly.\"\nItem 33 in Sch. 11 as originally enacted was \" Goods sold by the Crown \". This was amended by Act XVI of 1949 by substituting for the above words \" Goods sold to or by the Crown \". By an Adaptation Order of 1950, the words \"State Government\" were substituted for \"Crown\", and item 33 became \"Goods sold to or by the State Government \" In exercise ofthe power conferred by s. 6 (2) of the Act, the State issued a notification on September 18, 1950, amending item 33 by substituting for the words \" Goods sold to or by the State Government \" the words \" Goods sold by the State Government \". The resultant position is that the appellant who was entitled to exemption under Act XVI of 1949 in respect of goods sold to the Government could no longer claim it by reason of the notification aforesaid. Now, the ground of his attack was that it was not open to the Government in exercise of the authority delegated to it under s. 6 (2) of the Act to modify or alter what the Legislature had enacted.\nThe appellant accordingly claimed that the proceedings which the respondents proposed to take for assessment of sales tax were incompetent, and prayed that an appropriate writ might be issued restraining them from proceeding with the same.\nIn Civil Appeal No. 254 of 1955, the appellants are the Jabalpur Contractors' Association, which is a registered body and certain contractors, and they filed M. P. No. 279 of 1954 questioning the validity of the proposed assessment on the same grounds as in M. P. No. 245 of 1954. The appellant in Civil Appeal No. 255 of 1955, is the Madhya Pradesh Contractors' Association, Nagpur, which is again a registered body, and it filed M. P. No. 305 of 1954, challenging the legality of the proceedings for assessment on the same grounds as in M. P. No. 245 of 1954.\nAll these three petitions were heard together, and by their judgment dated November 30, 1954, the learned Judges held that the expression \" sale of goods\" in Entry 48 was wide enough to coverall transactions in which property in the moveables passed from one person to another for money, and that, accordingly, in a building contract there was a sale within Entry 48 of the materials used therein, and that the provisions of the Act imposing tax thereon were valid. But the learned Judges also held that the tax could be levied only on the actual value of the materials to be determined on an enquiry into the matter, and that the definition of \"\nprice \" in s. 2 (h) (ii) and r. 4 framed pursuant thereto were ultra viresin that they laid down artificial rules for fixing the same by deducting certain percentages from out of the total receipts on account of labour. As regards the notification dated September 18, 1950, the learned Judges held that it was within the authority conferred by the statute and was valid. In the result, the impugned provisions of the Act were held to be valid except as to the definition of \" price \" in s. 2 (h) (ii) and r. 4 of the Sales Tax Rules, 1947.\nIt is against this judgment that the above appeals have been preferred on a certificate granted by the High Court under Art. 132(1) of the Constitution.\nTwo contentions have been urged in support of the appeals : (1) that the Provincial Legislature has no authority in exercise of its power under Entry 48 to impose a tax on the supply of materials in works contracts as such supply cannot be said to be also of those materials within that Entry ; and (2) that the notification dated September 18, 1950, is bad as being an constitutional delegation of legislative authority.\nAs regards the first contention, the question is now concluded by the decision of this Court in The State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. (1) in which it has been held that the expression \" sale of goods \" in Entry 48 has the same meaning which it has in the Indian Sale of Goods Act, 1930, that in a building contract there is no sale of materials as such, and that it is therefore ultra vires the powers of the Provincial Legislature to impose tax on the supply of materials. Mr. B. Sen appearing for the respondents has argued that even if the expression \"\nsale of goods \" in Entry 48 is construed in the sense which it has in the Sale of Goods Act, that might render the impugned provisions of the Act ultra vires only in respect of a building contract which is one and indivisible, that there might be contracts which might consist of two distinct agreements, one for the sale of materials and another, for work and labour, and that in such a case, it would be competent to the State to impose tax on the sale of materials even construing that word in its (1) [1959] S.C.R. 379.434 narrow sense, and that these are matters which must be left to be investigated by the appropriate authorities. That undoubtedly is the correct legal position as observed in The State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. (1), and accordingly, when a question arises as to whether a particular works contract could be charged to sales tax, it will be for the authorities under the Act to determine whether the agreement in question is, on its true construction, a combination of an agreement to sell and an agreement to work, and if they come to the conclusion that such is its character, then it will be open to them to pro- ceed against that part of it which is a contract for the sale of goods, and impose tax thereon.\n(2) We have next to consider the contention that the notification dated September 18, 1950, is bad as constituting an unconstitutional delegation of legislative power. In the view which we have expressed above that there is in a works contract no sale of materials as such, it might seem academic to enter into a discussion of this question ; but as there may be building contracts in which it is possible to spell out agreements for the sale of materials as distinct from contracts for work and labour, it becomes necessary to express our decision thereon. Mr.\nChatterjee appearing for the appellant in Civil Appeal No.\n253 of 1955 contends that the notification in question is ultra vires because it is a matter of policy whether exemption should be granted under the Act or not, and a decision on that question must be taken only by the Legis- lature, and cannot be left to the determination of an outside authority. While a power to execute a law, it was argued, could be delegated to the executive, the power to make it must be exercised by the Legislature itself, and reliance was placed on the observations in Hampton J R & Co.\nv. United States (2), Panama Refining Co. v. Ryan (3), and Schechter v. United States (4), as supporting this position.\nIt was also contended that the grant of a power to an outside authority to (1) [1959] S.C.R. 379.\n(2) 276 U. S. 394; 72 L. Ed. 624, 629.\n(3) 293 U.S. 388; 79 L. Ed. 446, 458.\n(4) 295 U.S. 495; 79 L. Ed. 1570.repeal or modify a provision in a statute passed by the legislature was unconstitutional, and that, in consequence, the impugned notification was bad in that, in reversal of the policy laid down by the legislature in Act XVI of 1949 that sales to Government should be excluded from the operation of the Act, it withdrew the exemption which had been granted thereunder, and the observations in re The Delhi Laws Act, 1912 etc. (1), and the decision in Rajnarain Singh v. The Chairman, Patna Administration Committee, Patna and another (2), were strongly relied on as establishing this contention. Mr. N. C. Chatterjee particularly relied on the following observations of Bose J. at p. 301 in Rajnarain Singh's case (2) : \" In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature. Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out above; it cannot include a change of policy.\"\nOn these observations, the point for determination is whether the impugned notification relates to what may be said to be an essential feature of the law, and whether it involves any change of policy. Now, the authorities are clear that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like.\nIn Powell v. Appollo Candle Company Limited the question arose as to whether s. 133 of the Customs Regulation Act of 1879 of New South Wales which conferred a power on the Governor to impose tax on certain articles of import was an unconstitutional delegation of legislative powers. In holding that it was not, the Privy Council observed: \"It is argued that the tax in question has been (1) [1951] S.C.R. 747, 787, 982, 984- (3) (1885) 10 A.C. 282.\n(2) [1955] 1 S.C.R. 290.imposed by the Governor and not by the Legislature who alone had power to impose it. But the duties levied under the Order-in-Council are really levied by the authority of the Act under which the Order is issued. The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him. In these circumstances, their Lordships are of opinion that the judgment of the Supreme Court was wrong in declaring Section 133 of the Customs Regulation Act of 1879 to be beyond the power of the Legislature.\"\nIn Syed Mohamed & Co. v. The State of Madras (1), the question was as to the vires of rules 4 and 16 framed under the Madras General Sales Tax Act. Section 5 (vi) of that Act had left it to the rule-making authority to determine at which single point in the series of sales by successive dealers the tax should be levied, and pursuant thereto, rules 4 and 16 had provided that it was the purchaser who was liable to pay the tax in respect of sales of hides and skins. The validity of the rules was attacked on the ground that it was only the legislature that \"as competent to decide who shall be taxed, and that the determination of that question by the rule-making authorities was ultra vires. The Madras High Court rejected this conntetion, and held on a review of the authorities that the delegation of authority under s. 5 (vi) war, within permissible constitutional limits.\nIn Hampton J. R. & Co. v. United States (2), which was cited on behalf of the appellant, the question arose whether s.\n315(b) of the Tariff Act, 1922, under which the President had been empowered to make such increases and decreases in the rates of duty as were found necessary for carrying out the policies declared in the statute was an unconstitutional delegation, and the decision was that such delegation was not unconstitutional. We are therefore of the opinion that the power conferred on the State Government by s. 6(2) to amend the schedule relating to exemption is in consonance with the accepted legislative practice relating to the topic, and is not unconstitutional.\n(1) (1952) 3 S.T.C. 367 (2) 276 U.S. 394 ; 72 L. Ed. 624, 629.The contention of the appellant that the notification in question is ultra vires must, in our opinion, fail on another ground. The basic assumption on which the argument of the appellant proceeds is that the power to amend the schedule conferred on the Government under s. 6(2) is wholly independent of the grant of exemption under s. 6(1) of the Act, and that, in consequence, while an exemption under s.\n6(1) would stand, an amendment thereof by a notification under s. 6(2) might be bad. But that, in our opinion, is not the correct interpretation of the section. The two sub- sections together form integral parts of a single enactment, the object of which is to grant exemption from taxation in respect of such goods and to such extent as may from time to time be determined by the State Government. Section 6(1), therefore, cannot have an operation independent of s. 6(2), and an exemption granted thereunder is conditional and sub- ject to any modification that might be issued under s. 6(2).\nIn this view, the impugned notification is intra vires and not open to challenge.\nBut on our finding on the first question that the impugned provisions of the Act are ultra vires the powers of the Provincial Legislature under Entry 48 in List 11 in the seventh Schedule, we should set aside the orders of the Court below, and direct that the respondents be restrained from enforcing the provisions of the Central Provinces and Berar Sales Tax Act, 1947, in so far as they seek to impose a tax on construction works. It should be made clear, however, in accordance with what we have already stated, that the prohibition against imposition of tax is only in respect of contracts which are single and indivisible and not of contracts which are a combination of distinct contracts for sale of materials and for work, and that nothing that we have said in this judgment shall bar the sales tax authorities from deciding \"whether a particular contract falls within one category or the other and imposing a tax on the agreement of sale of materials, where the contract belongs to the latter category. The parties will bear their own costs throughout,BOSE J.-I agree except that I prefer not to express an opinion about the validity of the power conferred on the State Government by s. 6(2) of the Central Provinces and Berar Sales Tax Act, 1947, to amend the schedule in the way in which it has been amended here. I would leave that open for future decision.\n Appeals allowed.\n "
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"text": "IN THE COURT OF THE III ADDITIONAL SESSIONS JUDGE AT\n MYSORE.\n\n "
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"text": "Dated this the 10th day of March, 2014"
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"text": "Present: Sri. Suresh S Kogilgeri, B.Com., LL.B.(Spl.),\n III Addl."
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"text": "Sessions Judge,"
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"text": "\n Mysore."
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"text": "\n\n : Criminal Appeal No.173/2013 :"
}
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"start": 375,
"text": "\n\nAppellants : 1. Smt.Rajamani, W/o late Girish,\nRespondents aged about 33 years"
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},
{
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"start": 470,
"text": "\n\n 2. Nithish, S/o late Girish, aged about"
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{
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"id": "edbdaf5cd3e84d429241e9fbb7a6d3e5",
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"start": 531,
"text": "\n 9 years\n\n 3. Supreeth, S/o late Girish, aged\n "
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{
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"text": "about 6 years\n\n 4. Chirag, S/o late Girish, aged about\n 8 years\n\n Appellants 2 to 4 being minors\n represented by 1st petitioner mother\n Smt.Rajamani."
}
},
{
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"start": 896,
"text": "All are residing at\n D.No.42, Medara Block, Bamboo\n Bazaar, Mysore.\n\n {By"
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{
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"start": 1020,
"text": "Sri S.Sundar Raj, Advocate}"
}
},
{
"from_name": null,
"id": "f7c71632d4df40e2966f0a157cc28536",
"to_name": null,
"type": null,
"value": {
"end": 1081,
"labels": [
"PREAMBLE"
],
"start": 1047,
"text": "\n\n Vs.\n\n :"
}
},
{
"from_name": null,
"id": "ff8ca60c59944d9e9dfe1b4e1e109899",
"to_name": null,
"type": null,
"value": {
"end": 1107,
"labels": [
"PREAMBLE"
],
"start": 1082,
"text": "1. Parameshwara, 78 years"
}
},
{
"from_name": null,
"id": "55b8db46a8c54ad2b87bab56a73f8efb",
"to_name": null,
"type": null,
"value": {
"end": 1186,
"labels": [
"PREAMBLE"
],
"start": 1107,
"text": "\n\n 2. Smt.Renukadevi, w/o\n\n Parameshwara,"
}
},
{
"from_name": null,
"id": "ab0685dc6a9f491faf0c4ded517aa0b6",
"to_name": null,
"type": null,
"value": {
"end": 1220,
"labels": [
"PREAMBLE"
],
"start": 1187,
"text": "aged about 60\n\n years"
}
},
{
"from_name": null,
"id": "c8fe9d80e7f2471ea1a91f1c30b94a55",
"to_name": null,
"type": null,
"value": {
"end": 1665,
"labels": [
"PREAMBLE"
],
"start": 1235,
"text": "3. Jagadeesha, S/o Parameshwara,\n aged about 40 years\n\n 4. Smt.Rajini, D/o Parameshwara, 35\n years\n\n All are residing at D.No.751, 12th\n Cross, Vinayamarga, Siddarthanagar,\n Mysore.\n\n { By Sri S.P.Thyagaraj, Advocate for\n R1 to R4 }\n\n 2\n\n :"
}
},
{
"from_name": null,
"id": "1397a11539cd4b8dbfd22e5c96e1a9f2",
"to_name": null,
"type": null,
"value": {
"end": 1675,
"labels": [
"PREAMBLE"
],
"start": 1665,
"text": ": JUDGMENT"
}
},
{
"from_name": null,
"id": "10fc73616d6b430b8a31b15bd2b675dd",
"to_name": null,
"type": null,
"value": {
"end": 2084,
"labels": [
"RLC"
],
"start": 1676,
"text": ":: This is a Criminal Appeal filed by the appellants against the respondents under Section 29 of Protection of Women from Domestic Violence Act being aggrieved by the order dated 20- 05-2013 passed by the learned JMFC III Court, Mysore, in C.Mis.29/2012 wherein the leaned Magistrate has dismissed the application filed by the petitioners under Section 12 of Protection of Women from Domestic Violence Act 2."
}
},
{
"from_name": null,
"id": "aec199c981314a748cccc3b90d84f3b7",
"to_name": null,
"type": null,
"value": {
"end": 2224,
"labels": [
"FAC"
],
"start": 2085,
"text": "For the sake of convenience, the appellants and respondents will be referred with their original status as referred before the Trial Court."
}
},
{
"from_name": null,
"id": "6496077edd87476caf3218631599d10e",
"to_name": null,
"type": null,
"value": {
"end": 2319,
"labels": [
"FAC"
],
"start": 2225,
"text": "Appellants are the petitioners and the respondents are the respondents before the Trial Court."
}
},
{
"from_name": null,
"id": "d50d4a8bbd2b4309b5dd1395b1f2f19f",
"to_name": null,
"type": null,
"value": {
"end": 2477,
"labels": [
"FAC"
],
"start": 2319,
"text": "\n 3. Brief facts of the case of the petitioners before the Trial Court are as under: The 1st petitioner is the wife of one late Girish, son of 1st respondent."
}
},
{
"from_name": null,
"id": "7c09779d8b8444e496e9adda558764a8",
"to_name": null,
"type": null,
"value": {
"end": 2567,
"labels": [
"FAC"
],
"start": 2478,
"text": "Their marriage was taken place during June 2004 at Dharmastala in the presence of elders."
}
},
{
"from_name": null,
"id": "ff4bc79b16004792802e14a44e911701",
"to_name": null,
"type": null,
"value": {
"end": 2624,
"labels": [
"FAC"
],
"start": 2568,
"text": "The respondents did not have attended the said marriage."
}
},
{
"from_name": null,
"id": "1cc4a7fc95f549419ef17cb20610bdc8",
"to_name": null,
"type": null,
"value": {
"end": 2706,
"labels": [
"FAC"
],
"start": 2625,
"text": "After the marriage, the 1st petitioner started residing with her husband happily."
}
},
{
"from_name": null,
"id": "1e09a93e182b4d3a92c3864022bf75ff",
"to_name": null,
"type": null,
"value": {
"end": 2791,
"labels": [
"FAC"
],
"start": 2707,
"text": "On account of their wedlock, 2 male children and one female child were born to them."
}
},
{
"from_name": null,
"id": "7db4ac7610794bedac4d688e47c4fcdb",
"to_name": null,
"type": null,
"value": {
"end": 2833,
"labels": [
"FAC"
],
"start": 2792,
"text": "The said children are petitioners-2 to 4."
}
},
{
"from_name": null,
"id": "ab9e1705113f4329af6af09669739310",
"to_name": null,
"type": null,
"value": {
"end": 2905,
"labels": [
"FAC"
],
"start": 2834,
"text": "The husband of the 1st petitioner was working in the office of Courier."
}
},
{
"from_name": null,
"id": "a58c109b6cd44edaaf7e2ef23772ca70",
"to_name": null,
"type": null,
"value": {
"end": 3015,
"labels": [
"FAC"
],
"start": 2906,
"text": "During the life time of the husband of the 1st petitioner, he used to take his children to his parents house."
}
},
{
"from_name": null,
"id": "ef71309a54af494ca7f537df107790e1",
"to_name": null,
"type": null,
"value": {
"end": 3059,
"labels": [
"FAC"
],
"start": 3016,
"text": "He was not taking her to his parents house."
}
},
{
"from_name": null,
"id": "0a935358d6314bbcab43a928d6e0ccf4",
"to_name": null,
"type": null,
"value": {
"end": 3119,
"labels": [
"FAC"
],
"start": 3060,
"text": "On 09-10-2011, her husband died on account of heart attack."
}
},
{
"from_name": null,
"id": "9bdce8b4f8e04533af940f85b3199cc7",
"to_name": null,
"type": null,
"value": {
"end": 3199,
"labels": [
"FAC"
],
"start": 3120,
"text": "After the death of her husband, she is getting difficulty to maintain the life."
}
},
{
"from_name": null,
"id": "a1b998be0b61401db6a7038b0b2332ff",
"to_name": null,
"type": null,
"value": {
"end": 3381,
"labels": [
"FAC"
],
"start": 3200,
"text": "She has to repay the 3 Crl.A.No.173/2013 loan borrowed by her husband and she has to spend the amount towards educational expenses of her children and to pay the rent to the house."
}
},
{
"from_name": null,
"id": "9df5096f10b341c0b18fe1f31e48db45",
"to_name": null,
"type": null,
"value": {
"end": 3494,
"labels": [
"FAC"
],
"start": 3382,
"text": "So the 1st petitioner went to the house of the 1st respondent along with her children and asked him to help her."
}
},
{
"from_name": null,
"id": "a4d330fb47a7457882744816e4ffcdbc",
"to_name": null,
"type": null,
"value": {
"end": 3582,
"labels": [
"FAC"
],
"start": 3494,
"text": "\nBut all the respondents abused her, assaulted her and sent her out from the said house."
}
},
{
"from_name": null,
"id": "7aaacb300fc3404087e6bec980a34551",
"to_name": null,
"type": null,
"value": {
"end": 3674,
"labels": [
"FAC"
],
"start": 3583,
"text": "The respondents have not given the share of her husband out of the joint family properties."
}
},
{
"from_name": null,
"id": "2518097032e64f19b9efb4e4ab0ba249",
"to_name": null,
"type": null,
"value": {
"end": 3773,
"labels": [
"FAC"
],
"start": 3675,
"text": "The 1st respondent is doing the business and getting an income of more than Rs.40,000/- per month."
}
},
{
"from_name": null,
"id": "832a5ebdbbea4b659b42846e5169adbf",
"to_name": null,
"type": null,
"value": {
"end": 3857,
"labels": [
"FAC"
],
"start": 3774,
"text": "He has given several houses on rent and earning income from the said rented houses."
}
},
{
"from_name": null,
"id": "5918d916e3fd401c9abdaa0b313560fa",
"to_name": null,
"type": null,
"value": {
"end": 3885,
"labels": [
"FAC"
],
"start": 3858,
"text": "He is financially well off."
}
},
{
"from_name": null,
"id": "0a9327a1224a45dc92354208e9ffd6fd",
"to_name": null,
"type": null,
"value": {
"end": 3929,
"labels": [
"FAC"
],
"start": 3886,
"text": "The 1st respondent is not maintaining them."
}
},
{
"from_name": null,
"id": "3c638fd11f024321968ac4f600b622be",
"to_name": null,
"type": null,
"value": {
"end": 4160,
"labels": [
"FAC"
],
"start": 3929,
"text": "\nSo the petitioners have prayed to grant them the relief under Sections 18 to 20 and 22 of Protection of Women from Domestic Violence Act as to the residence order, interim order, maintenance and to meet the expenses of her family."
}
},
{
"from_name": null,
"id": "49bc983234f94bc79638a1084a01087d",
"to_name": null,
"type": null,
"value": {
"end": 4333,
"labels": [
"FAC"
],
"start": 4160,
"text": "\n 4. On the other hand, the respondents have appeared through their counsel and resisted the petition of the petitioners by filing objections and prayed to dismiss the same."
}
},
{
"from_name": null,
"id": "2e2f409f688a473b896c973e202a84ae",
"to_name": null,
"type": null,
"value": {
"end": 4402,
"labels": [
"ARG_RESPONDENT"
],
"start": 4334,
"text": "They contend that the averments made in paras-2 to 12 are all false."
}
},
{
"from_name": null,
"id": "835a5a248ca74f9daa84a5bc122c0388",
"to_name": null,
"type": null,
"value": {
"end": 4460,
"labels": [
"FAC"
],
"start": 4403,
"text": "The 1st petitioner is having only one son by name Girish."
}
},
{
"from_name": null,
"id": "29268f4aa523479898d4ebf82d637a56",
"to_name": null,
"type": null,
"value": {
"end": 4562,
"labels": [
"FAC"
],
"start": 4461,
"text": "They deny that the marriage of the 1st petitioner was taken place with the son of the 1st respondent."
}
},
{
"from_name": null,
"id": "9189d1af5728487d929e4c57acc5d5df",
"to_name": null,
"type": null,
"value": {
"end": 4629,
"labels": [
"FAC"
],
"start": 4563,
"text": "They deny all other allegations made against them in the petition."
}
},
{
"from_name": null,
"id": "116db074355f4b6d834e1579e64c3a29",
"to_name": null,
"type": null,
"value": {
"end": 4693,
"labels": [
"FAC"
],
"start": 4630,
"text": "The petitioners did not resided with them at any point of time."
}
},
{
"from_name": null,
"id": "8c45ef3119514960ad19b10de16bad01",
"to_name": null,
"type": null,
"value": {
"end": 4768,
"labels": [
"FAC"
],
"start": 4694,
"text": "So the respondents have prayed to dismiss the petition of the petitioners."
}
},
{
"from_name": null,
"id": "ea9a789bb3ca4d15a98d93fb73ecfe03",
"to_name": null,
"type": null,
"value": {
"end": 4873,
"labels": [
"FAC"
],
"start": 4770,
"text": "5. The 1st respondent has also filed an Application on the question of maintainability of the petition."
}
},
{
"from_name": null,
"id": "9f05059a9d784786a2840925d9029441",
"to_name": null,
"type": null,
"value": {
"end": 5007,
"labels": [
"FAC"
],
"start": 4874,
"text": "The petitioners have 4 resisted the said Application filed by the 1st respondent by filing objections and prayed to dismiss the same."
}
},
{
"from_name": null,
"id": "0352fcdb99e34542b4114cfba590449b",
"to_name": null,
"type": null,
"value": {
"end": 5225,
"labels": [
"RLC"
],
"start": 5009,
"text": "6. The Learned Magistrate after hearing both the parties on the question of maintainability of the petition has dismissed the petition of the petitioners as not maintainable under the impugned order dated 20-05-2013."
}
},
{
"from_name": null,
"id": "cbb4e3690dd54e99b1f455e0cf13830f",
"to_name": null,
"type": null,
"value": {
"end": 5491,
"labels": [
"FAC"
],
"start": 5227,
"text": "7. Now, the petitioners being aggrieved by the aforesaid order passed by the Learned Magistrate have preferred the present Criminal Appeal under Section 29 of Protection of Women from Domestic Violence Act praying to set aside the same on the following grounds: 1."
}
},
{
"from_name": null,
"id": "5e9f74b4029a4f44a55a9505110a13d2",
"to_name": null,
"type": null,
"value": {
"end": 5622,
"labels": [
"FAC"
],
"start": 5492,
"text": "i Pɼ AiƮAiĪ îzgg CfAiģ Zgu iqz U Cg z zR wU gIJz îzgg CfAiģ ʸVP Ai v PU gzުV CfAiģ e irgvg.\n 2. i "
}
},
{
"from_name": null,
"id": "07cfc49513c74a969c5526184ac29a43",
"to_name": null,
"type": null,
"value": {
"end": 5659,
"labels": [
"FAC"
],
"start": 5622,
"text": "Pɼ AiƮAiĪ Jzgzgg "
}
},
{
"from_name": null,
"id": "537d671df41048d49db70e878772a3b3",
"to_name": null,
"type": null,
"value": {
"end": 5932,
"labels": [
"FAC"
],
"start": 5659,
"text": "z Cf xAivAi CfU îzgg vPgg z, zj vPgg CfAiģ gIJz JPJQ eirgvg.\n 5 Crl.A.No.173/2013 3. i Pɼ AiƮAiĪ PAlĩP zd Pz PA 2 (Js) Pg PAlĩP AAzsz PPgg MAz jrAiİ Aiivzg gP Cx wgP DU iv v Q F PzAirAiİ jg qAiĮ CgVgvg JAz s îzgg CfAiģ e irgvg. Dzg, PAlĩP zd Pz PA 2 (Js)"
}
},
{
"from_name": null,
"id": "e959fe511fae4dbf9bfeb12a850f08fe",
"to_name": null,
"type": null,
"value": {
"end": 5941,
"labels": [
"FAC"
],
"start": 5933,
"text": "AtV gIJzU"
}
},
{
"from_name": null,
"id": "8f17e670004b4ed3af7b018b65c99ec6",
"to_name": null,
"type": null,
"value": {
"end": 6068,
"labels": [
"FAC"
],
"start": 5942,
"text": "GsAi PPgg MAz jrAiİ wgPA AiĪĪã PAqħAgĪŢ.\n EzP AAzslAv g GZ AiiAiU wåU rz, CU UĤz îzgg CfAiģ e irgvg.\n 4. i "
}
},
{
"from_name": null,
"id": "9fccbe6f9f144e7fbb10367b5a088a79",
"to_name": null,
"type": null,
"value": {
"end": 6361,
"labels": [
"FAC"
],
"start": 6068,
"text": "Pɼ AiƮAiĪ Jzgzgg îzgg CUɢz, JzgzggU îzgg U Cg U v Vjñ 6 VgĪŢAz vPgg z, îzgg z gdĪwU AAzlAv z smUļ, r, Lr Pq, P̼ d itv, P̼ zsz it vU dgĥrz, CU i Pɼ AiƮAiĪ jðz îzgg v Vjñ Aqw JAz z gdĪv r AiiAiĢAz Dzñ qAiĨPAz ý îzgg CfAiģ e irgvg.\n 5. i "
}
},
{
"from_name": null,
"id": "0eeaef4fb07b4afbae68fb4f825f72ca",
"to_name": null,
"type": null,
"value": {
"end": 6624,
"labels": [
"FAC"
],
"start": 6361,
"text": "Pɼ AiƮAiĪ AgPuPjU PAlĩP sl gAiģ AiiAiP z, Cg gAi Pg JzgzggU îzgjU PAlĩP zd qĪzi PAqħAz, i PɼAiiAiĪ AgPuPjU gAiģ jðz Jzgzgg 7 Crl.A.No.173/2013 îzgjU Aiiz PAlĩP zd JVAz wêiP Az îzgg CfAiģ e irgvg.\n 6. i "
}
},
{
"from_name": null,
"id": "3ae045a1c07b460ea127a5919196bb0d",
"to_name": null,
"type": null,
"value": {
"end": 6754,
"labels": [
"FAC"
],
"start": 6624,
"text": "Pɼ AiƮAiĪ Jzgzgg Pɼ AiiAiz Az z CfAi xvU AAzAv Zaz îzgg z U îzgg P̼ U CUvV Zaz, F Avz Czg CUvv Ezg CUvV Za CfAiģ e irgvg.\n 7."
}
},
{
"from_name": null,
"id": "4a23ccd775c04d6f9c6bf0da5a8a2b2e",
"to_name": null,
"type": null,
"value": {
"end": 6824,
"labels": [
"FAC"
],
"start": 6755,
"text": "i Pɼ AiƮAiĪ îzgg dgĥrz zR wU jðz U wAiģ jUtz CfAiģ e irgvg."
}
},
{
"from_name": null,
"id": "ee89ed1301004fc19b58dac608d44812",
"to_name": null,
"type": null,
"value": {
"end": 7030,
"labels": [
"FAC"
],
"start": 6824,
"text": "\n So the appellants have prayed to set aside the order passed by the Learned Magistrate and to remand the matter to the Trial Court to dispose of the case on the merits of the case after recording evidence."
}
},
{
"from_name": null,
"id": "4c17cc056b974ed282fc58572a39d1b1",
"to_name": null,
"type": null,
"value": {
"end": 7065,
"labels": [
"FAC"
],
"start": 7032,
"text": "8 8. Secured Trial Court records."
}
},
{
"from_name": null,
"id": "995d33249210462fbf6a2e13edde357a",
"to_name": null,
"type": null,
"value": {
"end": 7147,
"labels": [
"FAC"
],
"start": 7066,
"text": "Perused the Trial Court records and the impugned order passed by the Trial Court."
}
},
{
"from_name": null,
"id": "6cbb58929ba94abaaea51d5a9933a1a8",
"to_name": null,
"type": null,
"value": {
"end": 7263,
"labels": [
"NONE"
],
"start": 7149,
"text": "9. Heard arguments of the learned counsel for the petitioners and of the learned counsel for the respondents.\n 10."
}
},
{
"from_name": null,
"id": "63c955f8c9a741df974750d397cab3df",
"to_name": null,
"type": null,
"value": {
"end": 7336,
"labels": [
"ISSUE"
],
"start": 7264,
"text": "As this stage, the following Points have arisen for my determination: 1."
}
},
{
"from_name": null,
"id": "40bd1891c103493997a77ad861a4a454",
"to_name": null,
"type": null,
"value": {
"end": 7537,
"labels": [
"ISSUE"
],
"start": 7337,
"text": "Whether the appellants have made out a case to set aside the impugned order passed by the Learned Magistrate and to remand back the matter to the Trial Court for fresh disposal in accordance with law?"
}
},
{
"from_name": null,
"id": "791947d0b4804c749f3714c3e65f5c08",
"to_name": null,
"type": null,
"value": {
"end": 7553,
"labels": [
"ISSUE"
],
"start": 7537,
"text": "\n 2. What Order?"
}
},
{
"from_name": null,
"id": "527368912cc24a2695569630b1c00c96",
"to_name": null,
"type": null,
"value": {
"end": 7721,
"labels": [
"ANALYSIS"
],
"start": 7553,
"text": "\n 11. My findings on the aforesaid Points are held as under: Point No.1 : In the Affirmative Point No.2 : As per my final order, for the following: : R e a s o n s : 12"
}
},
{
"from_name": null,
"id": "4ec03744ba5f4681a87ebeaa00165d23",
"to_name": null,
"type": null,
"value": {
"end": 7780,
"labels": [
"ANALYSIS"
],
"start": 7721,
"text": ". Point No.1:- I have gone through the records of the case."
}
},
{
"from_name": null,
"id": "093e6fa4e5da4a60bad6e21ffeb83450",
"to_name": null,
"type": null,
"value": {
"end": 8124,
"labels": [
"ANALYSIS"
],
"start": 7781,
"text": "The petitioners had filed a petition under Sec.12 of the Protection of Women from Domestic Violence Act and prayed to grant them various reliefs under Secs.19(1), 22, 18, ,19 and 20 of the Protection of Women from Domestic Violence Act contending that the petitioner No.1 is the wife and petitioners-2 to 4 are the children of one late Girish."
}
},
{
"from_name": null,
"id": "d74aa277078d49529dfc4e26ee6bf6d1",
"to_name": null,
"type": null,
"value": {
"end": 8176,
"labels": [
"ANALYSIS"
],
"start": 8125,
"text": "Said late Girish is the son of respondents-1 and 2."
}
},
{
"from_name": null,
"id": "a21b5a5706ca4b85b8d3acd081237874",
"to_name": null,
"type": null,
"value": {
"end": 8266,
"labels": [
"ANALYSIS"
],
"start": 8177,
"text": "Respondent No.3 is the brother of late Girish and 4th respondent is the sister of Girish."
}
},
{
"from_name": null,
"id": "3465eac4b5c84268bd31585dac860f6b",
"to_name": null,
"type": null,
"value": {
"end": 8373,
"labels": [
"ANALYSIS"
],
"start": 8267,
"text": "The petitioner No.1 contends that her marriage was taken place with the aforesaid Girish during June 2004."
}
},
{
"from_name": null,
"id": "14daeb10ac9641beb2254b370ea54c81",
"to_name": null,
"type": null,
"value": {
"end": 8430,
"labels": [
"ANALYSIS"
],
"start": 8374,
"text": "Their marriage was a 9 Crl.A.No.173/2013 love marriage."
}
},
{
"from_name": null,
"id": "f43d17cccb09426194514a398328cb71",
"to_name": null,
"type": null,
"value": {
"end": 8477,
"labels": [
"ANALYSIS"
],
"start": 8431,
"text": "The respondents did not attend their marriage."
}
},
{
"from_name": null,
"id": "b346f388333d40409fc5d002ecb2d9fb",
"to_name": null,
"type": null,
"value": {
"end": 8564,
"labels": [
"ANALYSIS"
],
"start": 8477,
"text": "\nAfter the marriage, the 1st petitioner started living with her husband Girish happily."
}
},
{
"from_name": null,
"id": "678d7b2ca56d4f1fa382cf99c44a5b41",
"to_name": null,
"type": null,
"value": {
"end": 8642,
"labels": [
"ANALYSIS"
],
"start": 8565,
"text": "Out of their wedlock, 2 male children and one female child were born to them."
}
},
{
"from_name": null,
"id": "354dbf9fa63f4ded9f5e65e1a793ef4e",
"to_name": null,
"type": null,
"value": {
"end": 8758,
"labels": [
"ANALYSIS"
],
"start": 8643,
"text": "During the life time of Girish, he used to take the children to his parents house, but he was not taking her there."
}
},
{
"from_name": null,
"id": "d9915962de6b43e989386e39f052ceae",
"to_name": null,
"type": null,
"value": {
"end": 8826,
"labels": [
"ANALYSIS"
],
"start": 8759,
"text": "Subsequently on 09-10-2011, Girish died on account of heart attack."
}
},
{
"from_name": null,
"id": "54c243482f89406bb026c526578f8b30",
"to_name": null,
"type": null,
"value": {
"end": 8884,
"labels": [
"ANALYSIS"
],
"start": 8827,
"text": "Now she is not able to maintain herself and her children."
}
},
{
"from_name": null,
"id": "8d168cb9701b44f6893c76d04463f01f",
"to_name": null,
"type": null,
"value": {
"end": 8953,
"labels": [
"ANALYSIS"
],
"start": 8885,
"text": "Her husband had incurred loan for the business during his life time."
}
},
{
"from_name": null,
"id": "df57ded384734353a0f01e4c2ed9f348",
"to_name": null,
"type": null,
"value": {
"end": 8989,
"labels": [
"ANALYSIS"
],
"start": 8954,
"text": "Now she has to repay the said loan."
}
},
{
"from_name": null,
"id": "dfde06e5558d4b3282dc64f9bd43b0ad",
"to_name": null,
"type": null,
"value": {
"end": 9057,
"labels": [
"ANALYSIS"
],
"start": 8990,
"text": "There are joint family properties in which her husband has a share."
}
},
{
"from_name": null,
"id": "114928ca6f8040cc863f000f612d90f1",
"to_name": null,
"type": null,
"value": {
"end": 9114,
"labels": [
"ANALYSIS"
],
"start": 9058,
"text": "The respondents are not giving the share of her husband."
}
},
{
"from_name": null,
"id": "74af667ec90a431cbc38e21b213963c1",
"to_name": null,
"type": null,
"value": {
"end": 9229,
"labels": [
"ANALYSIS"
],
"start": 9115,
"text": "When she asked for the same, all the respondents have abused her, assaulted her and sent her out from their house."
}
},
{
"from_name": null,
"id": "f80ce723668b42cb9f534c9ab3eef887",
"to_name": null,
"type": null,
"value": {
"end": 9390,
"labels": [
"ANALYSIS"
],
"start": 9230,
"text": "Under such circumstances, the petitioners have prayed various reliefs under the provisions of the Protection of Women from Domestic Violence Act referred above."
}
},
{
"from_name": null,
"id": "ba78b7e468144104a029a9ed801c961a",
"to_name": null,
"type": null,
"value": {
"end": 9592,
"labels": [
"ANALYSIS"
],
"start": 9390,
"text": "\n 13. On the other hand, the respondents have denied the very relationship of petitioners with late Girish-son of 1st respondent and denied all other allegations made by the petitioners in the petition."
}
},
{
"from_name": null,
"id": "4e411d9e030b43479cdf84ec9ecbdde3",
"to_name": null,
"type": null,
"value": {
"end": 9784,
"labels": [
"ANALYSIS"
],
"start": 9594,
"text": "14. During the proceedings of the case, the 1st respondent has filed an application on the question of maintainability of the petition and the petitioners have filed objections for the same."
}
},
{
"from_name": null,
"id": "bf51e4c8d0694e80b2173003154812c9",
"to_name": null,
"type": null,
"value": {
"end": 10113,
"labels": [
"RLC"
],
"start": 9785,
"text": "The Learned Magistrate after hearing both the parties has dismissed the petition filed by the petitioners under Sec.12 of the Protection of Women from Domestic Violence Act by holding that the petition of the petitioners is not maintainable and observed that the petitioners have to get their rights settled in a 10 Civil Court."
}
},
{
"from_name": null,
"id": "2db2f16fbd1c48109069e7b73b47d403",
"to_name": null,
"type": null,
"value": {
"end": 10318,
"labels": [
"ANALYSIS"
],
"start": 10114,
"text": "The petitioners in support of their case have produced C.D., Marriage Invitation Card, Marriage Photographs, Death Certificate of Girish, Birth Certificates of petitioners-2 to 4 in support of their case."
}
},
{
"from_name": null,
"id": "c3a58a84d2bb403a86a260fbb749f1ab",
"to_name": null,
"type": null,
"value": {
"end": 10722,
"labels": [
"ANALYSIS"
],
"start": 10319,
"text": "Though the marriage of petitioner No.1 was taken place with late Girish during June 2004 as contended in the petition by the petitioners, the Birth Certificate of 4th petitioner goes to show that he was born on 17-01-2005 and one Birth Certificate goes to show that one Nanjunda was born to the 1st petitioner and late Girish on 24-11-2003, i.e. prior to the marriage of 1st petitioner with late Girish."
}
},
{
"from_name": null,
"id": "152b6bb9aff94936b61398f4684efbfe",
"to_name": null,
"type": null,
"value": {
"end": 10781,
"labels": [
"ANALYSIS"
],
"start": 10723,
"text": "Said Nanjunda is not impleaded as a party to the petition."
}
},
{
"from_name": null,
"id": "16526f7ce8a545789e5dc6007f1327b6",
"to_name": null,
"type": null,
"value": {
"end": 10897,
"labels": [
"ANALYSIS"
],
"start": 10782,
"text": "Admittedly in the instant case, the evidence of the petitioners and respondents is not recorded by the Trial Court."
}
},
{
"from_name": null,
"id": "203f4b1d3dfa4be79efc5878b933950a",
"to_name": null,
"type": null,
"value": {
"end": 10997,
"labels": [
"ANALYSIS"
],
"start": 10898,
"text": "Only after hearing both the parties, the Trial Court had dismissed the petition of the petitioners."
}
},
{
"from_name": null,
"id": "262924ec60e9445c9d36169248945d7f",
"to_name": null,
"type": null,
"value": {
"end": 11155,
"labels": [
"ARG_PETITIONER"
],
"start": 10998,
"text": "Under such circumstances, the petitioners contend that they should be given an opportunity to adduce their oral and documentary evidence to prove their case."
}
},
{
"from_name": null,
"id": "2af11f1290be4d2e8f69b68e1e7ca22e",
"to_name": null,
"type": null,
"value": {
"end": 11537,
"labels": [
"ARG_PETITIONER"
],
"start": 11156,
"text": "At this stage, the learned counsel for the petitioners in support of their case has relied on the following decisions reported in: (1) I (2013) DMC 530 wherein his Lordship of the Hon'ble Bombay High Court has observed as under: \"Protection of Women from Domestic Violence Act, 2005 Sections 2(f), 3, 12 Maintenance Grant of relief `Domestic relationship' `Shared household' "
}
},
{
"from_name": null,
"id": "f52573b0352b47f38676df44fa87e919",
"to_name": null,
"type": null,
"value": {
"end": 11673,
"labels": [
"ARG_PETITIONER"
],
"start": 11537,
"text": "Evidence is given by petitioner-wife on factum of marriage, cohabitation - She has proved that she falls under Section 2(f) of the Act "
}
},
{
"from_name": null,
"id": "1d63add50ef0479682da603fa671d6d7",
"to_name": null,
"type": null,
"value": {
"end": 11825,
"labels": [
"ARG_PETITIONER"
],
"start": 11673,
"text": "JMFC committed no error in granting relief of maintenance allowance to petitioner- Impugned judgment and order of Sessions Court quashed and set aside.\""
}
},
{
"from_name": null,
"id": "b7ea76b90ba3425699bc1b3c2ac3ba9c",
"to_name": null,
"type": null,
"value": {
"end": 13192,
"labels": [
"ARG_PETITIONER"
],
"start": 11825,
"text": "\n 11 Crl.A.No.173/2013 (2) I (2013) DMC 196 (DB) wherein their Lordships of Hon'ble Orissa High Court has observed as under: \"(ii) Protection of Women from Domestic Violence Act, 2005 Section 3 Explanation IV, Section 12 Maintenance Grant of monthly maintenance till share in joint family property Validity Husband has a right in the joint family properties After husband's death, wife acquired such right since she was not given share in the joint family properties, lower Courts rightly granted monthly maintenance to O.P. wife till she gets a share in petitioner's properties Award of maintenance @ Rs.1000 p.m. by ASJ till she gets her share in ancestral properties - Not on higher side.\"\n (3) III (2011) DMC 850 wherein his Lordships of Hon'ble Bombay High Court has observed as under: \"Protection of Women from Domestic Violence Act, 2005- Sections 27, 27(2) \"Reside\"\n Meaning of expression It implies something more than a casual stay and concrete intention to remain at particular place but not merely to pay casual or flying visit JMFC directed to consider application afresh by giving full opportunity to parties concerned to put forward their respective contentions along with oral documentary evidence in support of their rival contentions and to decide application challenging jurisdiction of Court to entertain and try proceedings.\""
}
},
{
"from_name": null,
"id": "ace5af572b9b4f0db61565d4d3a55229",
"to_name": null,
"type": null,
"value": {
"end": 13336,
"labels": [
"RATIO"
],
"start": 13192,
"text": "\n 15. I have gone through the principles laid down in the aforesaid decisions with reference to the facts and circumstances of the present case."
}
},
{
"from_name": null,
"id": "15a9edaff0894ddbb9dd1efa5256d952",
"to_name": null,
"type": null,
"value": {
"end": 13414,
"labels": [
"RATIO"
],
"start": 13337,
"text": "Admittedly the Trial Court has not recorded the evidence of both the parties."
}
},
{
"from_name": null,
"id": "86fb706af39c41b299c48692afcfeff2",
"to_name": null,
"type": null,
"value": {
"end": 13542,
"labels": [
"RATIO"
],
"start": 13415,
"text": "No opportunity was given to the petitioners to adduce their oral and documentary evidence to prove their case before the Court."
}
},
{
"from_name": null,
"id": "0c427fa97955431eb9f99214ea57b22a",
"to_name": null,
"type": null,
"value": {
"end": 13682,
"labels": [
"RATIO"
],
"start": 13543,
"text": "The 12 Trial Court instead of giving such an opportunity to the petitioners, dismissed the petition of the petitioners as not maintainable."
}
},
{
"from_name": null,
"id": "ec1b295329574b06b01536ffbb8aa4c5",
"to_name": null,
"type": null,
"value": {
"end": 13847,
"labels": [
"RATIO"
],
"start": 13683,
"text": "It is opposed to the principles of natural justice which requires that every one should be given an opportunity to place their case before passing the final orders."
}
},
{
"from_name": null,
"id": "7f3b66a847fb4a99a3a414428adf2dbb",
"to_name": null,
"type": null,
"value": {
"end": 13930,
"labels": [
"RATIO"
],
"start": 13848,
"text": "The reasons given by the Trial Court in the impugned order are not acceptable one."
}
},
{
"from_name": null,
"id": "e4934a30dbd645488ddf1c72a0949417",
"to_name": null,
"type": null,
"value": {
"end": 14271,
"labels": [
"RATIO"
],
"start": 13931,
"text": "Under such circumstances, I am of the opinion that the impugned order passed by the Trial Court has to be set aside and the matter has to be remanded back to the Trial Court for fresh disposal in accordance with law after giving an opportunity to both the parties to place oral and documentary evidence in respect of their respective cases."
}
},
{
"from_name": null,
"id": "7d97c6ad09314c9388a1188ed8b668ec",
"to_name": null,
"type": null,
"value": {
"end": 14465,
"labels": [
"RATIO"
],
"start": 14272,
"text": "Accordingly, I set aside the impugned order passed by the Trial Court and remand back the matter to the Trial Court for fresh disposal in accordance with law for the reasons stated by me supra."
}
},
{
"from_name": null,
"id": "eaf8086c91924523a00dd8d7079201d9",
"to_name": null,
"type": null,
"value": {
"end": 14518,
"labels": [
"RATIO"
],
"start": 14465,
"text": "\nAccordingly, I answer Point No.1 in the Affirmative."
}
},
{
"from_name": null,
"id": "53ea3f8c706e411586f733128dfc8f82",
"to_name": null,
"type": null,
"value": {
"end": 14536,
"labels": [
"RPC"
],
"start": 14518,
"text": "\n 16. Point No.2:-"
}
},
{
"from_name": null,
"id": "010e5a60dc8449c38f2fae1533c3193b",
"to_name": null,
"type": null,
"value": {
"end": 14596,
"labels": [
"RPC"
],
"start": 14537,
"text": "In the result, I proceed to pass the following: :: ORDER ::"
}
},
{
"from_name": null,
"id": "cff9ee52d720432ab203460679171818",
"to_name": null,
"type": null,
"value": {
"end": 14717,
"labels": [
"RPC"
],
"start": 14597,
"text": "The appeal filed by the appellants under Sec.29 of the Protection of Women from Domestic Violence Act is hereby allowed."
}
},
{
"from_name": null,
"id": "9ac851a01cc44f31967f06cb96f7691e",
"to_name": null,
"type": null,
"value": {
"end": 14841,
"labels": [
"RPC"
],
"start": 14719,
"text": "The impugned order dated 20-05- 2013 passed by learned JMFC (III Court), Mysore in C.Mis.No.29/2012 is hereby set aside.\n "
}
},
{
"from_name": null,
"id": "3268cf195cdf4859a99518d55e76f51e",
"to_name": null,
"type": null,
"value": {
"end": 15079,
"labels": [
"RPC"
],
"start": 14841,
"text": "The matter has been remanded back to the Trial Court for fresh disposal in accordance with law after giving an opportunity to both parties to adduce oral 13 Crl.A.No.173/2013 and documentary evidence in support of their respective cases."
}
},
{
"from_name": null,
"id": "3ba6a9da6fde4e888a8f362b4c89a888",
"to_name": null,
"type": null,
"value": {
"end": 15250,
"labels": [
"NONE"
],
"start": 15079,
"text": "\n (Dictated to the Judgment Writer, the transcript revised, corrected and then pronounced by me in open court on this the 10th day of March, 2014) (Suresh S Kogilgeri) III"
}
},
{
"from_name": null,
"id": "d23ab6ad8ffa450aaeaf519c8b5d35b2",
"to_name": null,
"type": null,
"value": {
"end": 15278,
"labels": [
"NONE"
],
"start": 15251,
"text": "Addl.Sessions Judge Mysore."
}
},
{
"from_name": null,
"id": "1b0f3c3b4a91421eb6342bee2daeceb7",
"to_name": null,
"type": null,
"value": {
"end": 15332,
"labels": [
"NONE"
],
"start": 15280,
"text": "Order pronounced in open court (vide separate order)"
}
},
{
"from_name": null,
"id": "06de44ca0c5e429f9929171d816efd57",
"to_name": null,
"type": null,
"value": {
"end": 15344,
"labels": [
"NONE"
],
"start": 15333,
"text": ":: ORDER ::"
}
},
{
"from_name": null,
"id": "1aa2d6e8c87f4822992bbf69b42422f7",
"to_name": null,
"type": null,
"value": {
"end": 15465,
"labels": [
"RPC"
],
"start": 15345,
"text": "The appeal filed by the appellants under Sec.29 of the Protection of Women from Domestic Violence Act is hereby allowed."
}
},
{
"from_name": null,
"id": "f6f5f9d245ed470cae3cb84e37996957",
"to_name": null,
"type": null,
"value": {
"end": 15588,
"labels": [
"RPC"
],
"start": 15467,
"text": "The impugned order dated 20-05-2013 passed by learned JMFC (III Court), Mysore in C.Mis.No.29/2012 is hereby set aside.\n "
}
},
{
"from_name": null,
"id": "8a2a623b372c484ba367e7819f8d3854",
"to_name": null,
"type": null,
"value": {
"end": 15804,
"labels": [
"RPC"
],
"start": 15588,
"text": "The matter has been remanded back to the Trial Court for fresh disposal in accordance with law after giving an opportunity to both parties to adduce oral and documentary evidence in support of their respective cases."
}
},
{
"from_name": null,
"id": "26b1c2a5812941939e616cd6eb5eb781",
"to_name": null,
"type": null,
"value": {
"end": 15837,
"labels": [
"NONE"
],
"start": 15804,
"text": "\n III Addl.Sessions Judge Mysore."
}
}
]
}
] | 4,171 | {
"text": "IN THE COURT OF THE III ADDITIONAL SESSIONS JUDGE AT\n MYSORE.\n\n Dated this the 10th day of March, 2014\n\n Present: Sri. Suresh S Kogilgeri, B.Com., LL.B.(Spl.),\n III Addl. Sessions Judge,\n Mysore.\n\n : Criminal Appeal No.173/2013 :\n\nAppellants : 1. Smt.Rajamani, W/o late Girish,\nRespondents aged about 33 years\n\n 2. Nithish, S/o late Girish, aged about\n 9 years\n\n 3. Supreeth, S/o late Girish, aged\n about 6 years\n\n 4. Chirag, S/o late Girish, aged about\n 8 years\n\n Appellants 2 to 4 being minors\n represented by 1st petitioner mother\n Smt.Rajamani. All are residing at\n D.No.42, Medara Block, Bamboo\n Bazaar, Mysore.\n\n {By Sri S.Sundar Raj, Advocate}\n\n Vs.\n\n : 1. Parameshwara, 78 years\n\n 2. Smt.Renukadevi, w/o\n\n Parameshwara, aged about 60\n\n years\n\n 3. Jagadeesha, S/o Parameshwara,\n aged about 40 years\n\n 4. Smt.Rajini, D/o Parameshwara, 35\n years\n\n All are residing at D.No.751, 12th\n Cross, Vinayamarga, Siddarthanagar,\n Mysore.\n\n { By Sri S.P.Thyagaraj, Advocate for\n R1 to R4 }\n\n 2\n\n :: JUDGMENT :: This is a Criminal Appeal filed by the appellants against the respondents under Section 29 of Protection of Women from Domestic Violence Act being aggrieved by the order dated 20- 05-2013 passed by the learned JMFC III Court, Mysore, in C.Mis.29/2012 wherein the leaned Magistrate has dismissed the application filed by the petitioners under Section 12 of Protection of Women from Domestic Violence Act 2. For the sake of convenience, the appellants and respondents will be referred with their original status as referred before the Trial Court. Appellants are the petitioners and the respondents are the respondents before the Trial Court.\n 3. Brief facts of the case of the petitioners before the Trial Court are as under: The 1st petitioner is the wife of one late Girish, son of 1st respondent. Their marriage was taken place during June 2004 at Dharmastala in the presence of elders. The respondents did not have attended the said marriage. After the marriage, the 1st petitioner started residing with her husband happily. On account of their wedlock, 2 male children and one female child were born to them. The said children are petitioners-2 to 4. The husband of the 1st petitioner was working in the office of Courier. During the life time of the husband of the 1st petitioner, he used to take his children to his parents house. He was not taking her to his parents house. On 09-10-2011, her husband died on account of heart attack. After the death of her husband, she is getting difficulty to maintain the life. She has to repay the 3 Crl.A.No.173/2013 loan borrowed by her husband and she has to spend the amount towards educational expenses of her children and to pay the rent to the house. So the 1st petitioner went to the house of the 1st respondent along with her children and asked him to help her.\nBut all the respondents abused her, assaulted her and sent her out from the said house. The respondents have not given the share of her husband out of the joint family properties. The 1st respondent is doing the business and getting an income of more than Rs.40,000/- per month. He has given several houses on rent and earning income from the said rented houses. He is financially well off. The 1st respondent is not maintaining them.\nSo the petitioners have prayed to grant them the relief under Sections 18 to 20 and 22 of Protection of Women from Domestic Violence Act as to the residence order, interim order, maintenance and to meet the expenses of her family.\n 4. On the other hand, the respondents have appeared through their counsel and resisted the petition of the petitioners by filing objections and prayed to dismiss the same. They contend that the averments made in paras-2 to 12 are all false.\nThe 1st petitioner is having only one son by name Girish. They deny that the marriage of the 1st petitioner was taken place with the son of the 1st respondent. They deny all other allegations made against them in the petition. The petitioners did not resided with them at any point of time. So the respondents have prayed to dismiss the petition of the petitioners.\n 5. The 1st respondent has also filed an Application on the question of maintainability of the petition. The petitioners have 4 resisted the said Application filed by the 1st respondent by filing objections and prayed to dismiss the same.\n 6. The Learned Magistrate after hearing both the parties on the question of maintainability of the petition has dismissed the petition of the petitioners as not maintainable under the impugned order dated 20-05-2013.\n 7. Now, the petitioners being aggrieved by the aforesaid order passed by the Learned Magistrate have preferred the present Criminal Appeal under Section 29 of Protection of Women from Domestic Violence Act praying to set aside the same on the following grounds: 1. i Pɼ AiƮAiĪ îzgg CfAiģ Zgu iqz U Cg z zR wU gIJz îzgg CfAiģ ʸVP Ai v PU gzުV CfAiģ e irgvg.\n 2. i Pɼ AiƮAiĪ Jzgzgg z Cf xAivAi CfU îzgg vPgg z, zj vPgg CfAiģ gIJz JPJQ eirgvg.\n 5 Crl.A.No.173/2013 3. i Pɼ AiƮAiĪ PAlĩP zd Pz PA 2 (Js) Pg PAlĩP AAzsz PPgg MAz jrAiİ Aiivzg gP Cx wgP DU iv v Q F PzAirAiİ jg qAiĮ CgVgvg JAz s îzgg CfAiģ e irgvg. Dzg, PAlĩP zd Pz PA 2 (Js) AtV gIJzU GsAi PPgg MAz jrAiİ wgPA AiĪĪã PAqħAgĪŢ.\n EzP AAzslAv g GZ AiiAiU wåU rz, CU UĤz îzgg CfAiģ e irgvg.\n 4. i Pɼ AiƮAiĪ Jzgzgg îzgg CUɢz, JzgzggU îzgg U Cg U v Vjñ 6 VgĪŢAz vPgg z, îzgg z gdĪwU AAzlAv z smUļ, r, Lr Pq, P̼ d itv, P̼ zsz it vU dgĥrz, CU i Pɼ AiƮAiĪ jðz îzgg v Vjñ Aqw JAz z gdĪv r AiiAiĢAz Dzñ qAiĨPAz ý îzgg CfAiģ e irgvg.\n 5. i Pɼ AiƮAiĪ AgPuPjU PAlĩP sl gAiģ AiiAiP z, Cg gAi Pg JzgzggU îzgjU PAlĩP zd qĪzi PAqħAz, i PɼAiiAiĪ AgPuPjU gAiģ jðz Jzgzgg 7 Crl.A.No.173/2013 îzgjU Aiiz PAlĩP zd JVAz wêiP Az îzgg CfAiģ e irgvg.\n 6. i Pɼ AiƮAiĪ Jzgzgg Pɼ AiiAiz Az z CfAi xvU AAzAv Zaz îzgg z U îzgg P̼ U CUvV Zaz, F Avz Czg CUvv Ezg CUvV Za CfAiģ e irgvg.\n 7. i Pɼ AiƮAiĪ îzgg dgĥrz zR wU jðz U wAiģ jUtz CfAiģ e irgvg.\n So the appellants have prayed to set aside the order passed by the Learned Magistrate and to remand the matter to the Trial Court to dispose of the case on the merits of the case after recording evidence.\n 8 8. Secured Trial Court records. Perused the Trial Court records and the impugned order passed by the Trial Court.\n 9. Heard arguments of the learned counsel for the petitioners and of the learned counsel for the respondents.\n 10. As this stage, the following Points have arisen for my determination: 1. Whether the appellants have made out a case to set aside the impugned order passed by the Learned Magistrate and to remand back the matter to the Trial Court for fresh disposal in accordance with law?\n 2. What Order?\n 11. My findings on the aforesaid Points are held as under: Point No.1 : In the Affirmative Point No.2 : As per my final order, for the following: : R e a s o n s : 12. Point No.1:- I have gone through the records of the case. The petitioners had filed a petition under Sec.12 of the Protection of Women from Domestic Violence Act and prayed to grant them various reliefs under Secs.19(1), 22, 18, ,19 and 20 of the Protection of Women from Domestic Violence Act contending that the petitioner No.1 is the wife and petitioners-2 to 4 are the children of one late Girish. Said late Girish is the son of respondents-1 and 2. Respondent No.3 is the brother of late Girish and 4th respondent is the sister of Girish. The petitioner No.1 contends that her marriage was taken place with the aforesaid Girish during June 2004. Their marriage was a 9 Crl.A.No.173/2013 love marriage. The respondents did not attend their marriage.\nAfter the marriage, the 1st petitioner started living with her husband Girish happily. Out of their wedlock, 2 male children and one female child were born to them. During the life time of Girish, he used to take the children to his parents house, but he was not taking her there. Subsequently on 09-10-2011, Girish died on account of heart attack. Now she is not able to maintain herself and her children. Her husband had incurred loan for the business during his life time. Now she has to repay the said loan. There are joint family properties in which her husband has a share. The respondents are not giving the share of her husband. When she asked for the same, all the respondents have abused her, assaulted her and sent her out from their house. Under such circumstances, the petitioners have prayed various reliefs under the provisions of the Protection of Women from Domestic Violence Act referred above.\n 13. On the other hand, the respondents have denied the very relationship of petitioners with late Girish-son of 1st respondent and denied all other allegations made by the petitioners in the petition.\n 14. During the proceedings of the case, the 1st respondent has filed an application on the question of maintainability of the petition and the petitioners have filed objections for the same.\nThe Learned Magistrate after hearing both the parties has dismissed the petition filed by the petitioners under Sec.12 of the Protection of Women from Domestic Violence Act by holding that the petition of the petitioners is not maintainable and observed that the petitioners have to get their rights settled in a 10 Civil Court. The petitioners in support of their case have produced C.D., Marriage Invitation Card, Marriage Photographs, Death Certificate of Girish, Birth Certificates of petitioners-2 to 4 in support of their case. Though the marriage of petitioner No.1 was taken place with late Girish during June 2004 as contended in the petition by the petitioners, the Birth Certificate of 4th petitioner goes to show that he was born on 17-01-2005 and one Birth Certificate goes to show that one Nanjunda was born to the 1st petitioner and late Girish on 24-11-2003, i.e. prior to the marriage of 1st petitioner with late Girish. Said Nanjunda is not impleaded as a party to the petition. Admittedly in the instant case, the evidence of the petitioners and respondents is not recorded by the Trial Court. Only after hearing both the parties, the Trial Court had dismissed the petition of the petitioners. Under such circumstances, the petitioners contend that they should be given an opportunity to adduce their oral and documentary evidence to prove their case. At this stage, the learned counsel for the petitioners in support of their case has relied on the following decisions reported in: (1) I (2013) DMC 530 wherein his Lordship of the Hon'ble Bombay High Court has observed as under: \"Protection of Women from Domestic Violence Act, 2005 Sections 2(f), 3, 12 Maintenance Grant of relief `Domestic relationship' `Shared household' Evidence is given by petitioner-wife on factum of marriage, cohabitation - She has proved that she falls under Section 2(f) of the Act JMFC committed no error in granting relief of maintenance allowance to petitioner- Impugned judgment and order of Sessions Court quashed and set aside.\"\n 11 Crl.A.No.173/2013 (2) I (2013) DMC 196 (DB) wherein their Lordships of Hon'ble Orissa High Court has observed as under: \"(ii) Protection of Women from Domestic Violence Act, 2005 Section 3 Explanation IV, Section 12 Maintenance Grant of monthly maintenance till share in joint family property Validity Husband has a right in the joint family properties After husband's death, wife acquired such right since she was not given share in the joint family properties, lower Courts rightly granted monthly maintenance to O.P. wife till she gets a share in petitioner's properties Award of maintenance @ Rs.1000 p.m. by ASJ till she gets her share in ancestral properties - Not on higher side.\"\n (3) III (2011) DMC 850 wherein his Lordships of Hon'ble Bombay High Court has observed as under: \"Protection of Women from Domestic Violence Act, 2005- Sections 27, 27(2) \"Reside\"\n Meaning of expression It implies something more than a casual stay and concrete intention to remain at particular place but not merely to pay casual or flying visit JMFC directed to consider application afresh by giving full opportunity to parties concerned to put forward their respective contentions along with oral documentary evidence in support of their rival contentions and to decide application challenging jurisdiction of Court to entertain and try proceedings.\"\n 15. I have gone through the principles laid down in the aforesaid decisions with reference to the facts and circumstances of the present case. Admittedly the Trial Court has not recorded the evidence of both the parties. No opportunity was given to the petitioners to adduce their oral and documentary evidence to prove their case before the Court. The 12 Trial Court instead of giving such an opportunity to the petitioners, dismissed the petition of the petitioners as not maintainable. It is opposed to the principles of natural justice which requires that every one should be given an opportunity to place their case before passing the final orders. The reasons given by the Trial Court in the impugned order are not acceptable one. Under such circumstances, I am of the opinion that the impugned order passed by the Trial Court has to be set aside and the matter has to be remanded back to the Trial Court for fresh disposal in accordance with law after giving an opportunity to both the parties to place oral and documentary evidence in respect of their respective cases. Accordingly, I set aside the impugned order passed by the Trial Court and remand back the matter to the Trial Court for fresh disposal in accordance with law for the reasons stated by me supra.\nAccordingly, I answer Point No.1 in the Affirmative.\n 16. Point No.2:- In the result, I proceed to pass the following: :: ORDER :: The appeal filed by the appellants under Sec.29 of the Protection of Women from Domestic Violence Act is hereby allowed.\n The impugned order dated 20-05- 2013 passed by learned JMFC (III Court), Mysore in C.Mis.No.29/2012 is hereby set aside.\n The matter has been remanded back to the Trial Court for fresh disposal in accordance with law after giving an opportunity to both parties to adduce oral 13 Crl.A.No.173/2013 and documentary evidence in support of their respective cases.\n (Dictated to the Judgment Writer, the transcript revised, corrected and then pronounced by me in open court on this the 10th day of March, 2014) (Suresh S Kogilgeri) III Addl.Sessions Judge Mysore.\n Order pronounced in open court (vide separate order) :: ORDER :: The appeal filed by the appellants under Sec.29 of the Protection of Women from Domestic Violence Act is hereby allowed.\n The impugned order dated 20-05-2013 passed by learned JMFC (III Court), Mysore in C.Mis.No.29/2012 is hereby set aside.\n The matter has been remanded back to the Trial Court for fresh disposal in accordance with law after giving an opportunity to both parties to adduce oral and documentary evidence in support of their respective cases.\n III Addl.Sessions Judge Mysore.\n 14 "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "ed3bbbfe5f54453399d92a99cd4fdf34",
"to_name": null,
"type": null,
"value": {
"end": 112,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nSTATE (DELHI ADMN.)\n\nVs.\n\nRESPONDENT:\nJAGJIT SINGH\n\nDATE OF JUDGMENT15/12/1988\n\nBENCH:\nRAY, B.C. (J)"
}
},
{
"from_name": null,
"id": "8d1f8ff80b3844389cf15fb599bdecec",
"to_name": null,
"type": null,
"value": {
"end": 535,
"labels": [
"PREAMBLE"
],
"start": 112,
"text": "\nBENCH:\nRAY, B.C. (J)\nOJHA, N.D. (J)\n\nCITATION:\n\n1989 AIR 598 1988 SCR Supl. (3)1093\n\n1989 SCC Supl. (2) 770 JT 1988 (4) 715\n\n1988 SCALE (2)1578\n\nACT:\n Criminal Procedure Code, 1973: Section 306 Person\n\naccepting tender of pardon- To be examined as witness in\nCourt of Magistrate taking cognizance of offence as well as\ntrial Court- Person resiling from earlier statement-\nLiability to be examined not absolved."
}
},
{
"from_name": null,
"id": "1f8e01e371214bd3bb87a73977c93be5",
"to_name": null,
"type": null,
"value": {
"end": 642,
"labels": [
"PREAMBLE"
],
"start": 535,
"text": "\n\nHEADNOTE:\n Many explosions took place in May 1985 in Delhi and\n\nUttar Pradesh killing many persons."
}
},
{
"from_name": null,
"id": "49e51f0dec354ae28b5f516aa5282cb3",
"to_name": null,
"type": null,
"value": {
"end": 691,
"labels": [
"PREAMBLE"
],
"start": 643,
"text": "Consequently, a number\nof cases were registered."
}
},
{
"from_name": null,
"id": "e6837ba2ff3f4ac8acd3808460000097",
"to_name": null,
"type": null,
"value": {
"end": 879,
"labels": [
"PREAMBLE"
],
"start": 692,
"text": "In Delhi, FIR No. 238 of 1985 was\nregistered wherein the respondent and another accused turned\napprovers and were granted pardon under section 306 of the\nCode of Criminal Procedure, 1973."
}
},
{
"from_name": null,
"id": "509bff1eb58040cbbc825c694dc91e57",
"to_name": null,
"type": null,
"value": {
"end": 959,
"labels": [
"PREAMBLE"
],
"start": 880,
"text": "Both these approvers\nhowever resiled from their statements in the Court of the\n"
}
},
{
"from_name": null,
"id": "e0abf1ce795a4ff2a850dd317a8ba6d2",
"to_name": null,
"type": null,
"value": {
"end": 980,
"labels": [
"PREAMBLE"
],
"start": 959,
"text": "Committing Magistrate"
}
},
{
"from_name": null,
"id": "9eb6762d0a404a18b701ce06f684da32",
"to_name": null,
"type": null,
"value": {
"end": 1197,
"labels": [
"PREAMBLE"
],
"start": 980,
"text": ".\n\n Four Criminal cases pending in Meerut were later\ntransferred by the Supreme Court to the Court of the Chief\nMetropolitan Magistrate, Delhi, to be tried along with the\ncase arising out of FIR No. 238 of 1985."
}
},
{
"from_name": null,
"id": "7298a30c91f24992b3f3ffc62b700da6",
"to_name": null,
"type": null,
"value": {
"end": 1315,
"labels": [
"PREAMBLE"
],
"start": 1197,
"text": "\n\n In the supplementary committal proceedings in case FIR\nNo. 238 of 1985, the respondent objected to his being\n"
}
},
{
"from_name": null,
"id": "4aa6c7dba28242d5bed23e4346596ae8",
"to_name": null,
"type": null,
"value": {
"end": 1556,
"labels": [
"PREAMBLE"
],
"start": 1315,
"text": "summoned as an approver on the ground inter alia that he\ncould not be examined as a witness in the case because he\nwas figuring as an accused person in the other four cases on\nthe same facts and circumstances, which were being jointly\ntried."
}
},
{
"from_name": null,
"id": "5f2f9c8033804730ba0037d95c646d4e",
"to_name": null,
"type": null,
"value": {
"end": 1617,
"labels": [
"PREAMBLE"
],
"start": 1557,
"text": "The Chief Metropolitan Magistrate dismissed the\napplication."
}
},
{
"from_name": null,
"id": "4262a52499a54c9a81dd37634bc485f6",
"to_name": null,
"type": null,
"value": {
"end": 1784,
"labels": [
"PREAMBLE"
],
"start": 1618,
"text": "The High Court allowed the respondent's\nrevision petition and directed the State not to examine the\nrespondent as an approver in case F.I.R. No. 238 of 1985.\n\n "
}
},
{
"from_name": null,
"id": "ca856de0c9ff4ff1bd8b3f474feb4c70",
"to_name": null,
"type": null,
"value": {
"end": 1963,
"labels": [
"PREAMBLE"
],
"start": 1784,
"text": "In the appeal before this Court, it was inter alia\ncontended that the prosecution could not examine the\nrespondent as a witness because he had cast away the pardon\ngranted to him."
}
},
{
"from_name": null,
"id": "1d01b7c151294ff3bff51793968e13ce",
"to_name": null,
"type": null,
"value": {
"end": 2008,
"labels": [
"PREAMBLE"
],
"start": 1963,
"text": "\n\n Allowing the appeal,\n HELD: 1."
}
},
{
"from_name": null,
"id": "adb8f78200be4265a109382adafbe77b",
"to_name": null,
"type": null,
"value": {
"end": 2197,
"labels": [
"PREAMBLE"
],
"start": 2009,
"text": "The pardon granted to the respondent was\naccepted by him and he was examined as a prosecution witness\nin the Court of the Committing Magistrate, though he resiled\nfrom his statement there."
}
},
{
"from_name": null,
"id": "ba0ed0b6727d4c738dc4caa7fe662032",
"to_name": null,
"type": null,
"value": {
"end": 2407,
"labels": [
"PREAMBLE"
],
"start": 2198,
"text": "[1097C]\n\n PG NO 1093\n PG NO. 1094"
}
},
{
"from_name": null,
"id": "fc156bb283da49fd8ec3e120903df77e",
"to_name": null,
"type": null,
"value": {
"end": 2631,
"labels": [
"PREAMBLE"
],
"start": 2416,
"text": "2. It is a mandate of the provisions of the Criminal\nProcedure Code to the prosecution to examine the approver to\nwhom pardon had been granted as a witness both in the\nCommitting Court as well as in the trial court."
}
},
{
"from_name": null,
"id": "cc060d7599414a3a8926aa8b3502edef",
"to_name": null,
"type": null,
"value": {
"end": 2957,
"labels": [
"PREAMBLE"
],
"start": 2632,
"text": "[1097E]\n\n 3. Section 306 clearly enjoins that the approver who was\ngranted pardon had to comply with the condition of making a\nfull and true disclosure of the whole of the circumstances\nwithin his knowledge relative to the offencc and to every\nother concerned whether as principal or abettor, in the\ncommission thereof."
}
},
{
"from_name": null,
"id": "272f804f0f4540b5b93b883b66dca900",
"to_name": null,
"type": null,
"value": {
"end": 3217,
"labels": [
"PREAMBLE"
],
"start": 2958,
"text": "It is because of this mandate that the\nState cannot withdraw the pardon from the approver nor the\napprover can cast away the pardon granted to him, till he is\nexamined as a witness by the prosecution both in the\nCommitting Court as well as in the trial court."
}
},
{
"from_name": null,
"id": "e2f0460afa2f416b81d6ad84d07fab7b",
"to_name": null,
"type": null,
"value": {
"end": 3245,
"labels": [
"PREAMBLE"
],
"start": 3218,
"text": "[1097H;\n1098A-B]\n\n 4."
}
},
{
"from_name": null,
"id": "8a4d06be5614485aa76513b6eea1a9f9",
"to_name": null,
"type": null,
"value": {
"end": 3524,
"labels": [
"PREAMBLE"
],
"start": 3246,
"text": "The respondent who has been granted pardon in case\nF.I.R. No. 238 of 1985 has to be examined by the prosecution\nin the trial court no matter that he has resiled from his\nearlier statement and tried to conceal what was within his\nknowledge with regard to the offence in question."
}
},
{
"from_name": null,
"id": "25a15ad1a44146bc88f15f8ecf5fd431",
"to_name": null,
"type": null,
"value": {
"end": 3651,
"labels": [
"PREAMBLE"
],
"start": 3525,
"text": "[1100D]\n\n In re: Arusami Goundan, AIR 1959 Mad. 274 and Emperor v.\nShandino Bhaniperto, AIR 1940 (Sind) 114 referred to."
}
},
{
"from_name": null,
"id": "c1e3e5245ed940e8808d8235bf1779da",
"to_name": null,
"type": null,
"value": {
"end": 3662,
"labels": [
"PREAMBLE"
],
"start": 3651,
"text": "\n\n 5."
}
},
{
"from_name": null,
"id": "ed76dd02de0e43daa7d72d70ed0f474a",
"to_name": null,
"type": null,
"value": {
"end": 3785,
"labels": [
"PREAMBLE"
],
"start": 3663,
"text": "Once an accused is granted pardon under section 306,\nhe ceases to be an accused and becomes a witness for the\nprosecution."
}
},
{
"from_name": null,
"id": "db7721bebdf344debdf6b31d39f79f1b",
"to_name": null,
"type": null,
"value": {
"end": 4119,
"labels": [
"PREAMBLE"
],
"start": 3786,
"text": "So long as the prosecution does not certify\nthat he has failed to make a full and true disclosure of the\nwhole of the circumstance within his knowledge relating to\nthe offence, he continues to be a witness and the\nprosecution is under obligation to examine him as a witness\nboth in the Committing Court as well as in the trial court."
}
},
{
"from_name": null,
"id": "bb8b91bbc0ff4ac68bf60079f8fb9953",
"to_name": null,
"type": null,
"value": {
"end": 4207,
"labels": [
"PREAMBLE"
],
"start": 4119,
"text": "\n[1099H; 1100A-B]\n\n A.J. Peiris v. State of Madras, AIR 1954 (SC) 616\nreferred to."
}
},
{
"from_name": null,
"id": "d567d9da935444e5bfd046445fa204e6",
"to_name": null,
"type": null,
"value": {
"end": 4398,
"labels": [
"PREAMBLE"
],
"start": 4216,
"text": "6. A witness is legally bound to answer any question\nwhich is relevant to the matter in issue even if the answer\nto such question is likely to incriminate him directly or\nindirectly."
}
},
{
"from_name": null,
"id": "ef3ccfd76e924267ab2609319d24a343",
"to_name": null,
"type": null,
"value": {
"end": 4417,
"labels": [
"PREAMBLE"
],
"start": 4399,
"text": "[1100G]\n\n 7."
}
},
{
"from_name": null,
"id": "05566a41d9de48fe9d06b7e082823669",
"to_name": null,
"type": null,
"value": {
"end": 4640,
"labels": [
"PREAMBLE"
],
"start": 4418,
"text": "The proviso to section 132 of the Indian Evidence Act\nclearly protects a witness from being prosecuted on the\nbasis of the answers given by him in a criminal proceeding\nwhich tend to incriminate him directly or indirectly."
}
},
{
"from_name": null,
"id": "3b33cbb9ae3f45e48686d5a1d7359cb1",
"to_name": null,
"type": null,
"value": {
"end": 4758,
"labels": [
"PREAMBLE"
],
"start": 4641,
"text": "[1101A]\n\n PG NO. 1095\n 8."
}
},
{
"from_name": null,
"id": "ec4ec9c4088046699458a98fbf140a9c",
"to_name": null,
"type": null,
"value": {
"end": 4935,
"labels": [
"PREAMBLE"
],
"start": 4759,
"text": "The apprehension of the respondent that his evidence\nas approver will be used against him in the other four\ncriminal cases where he figures as an accused was without\nany basis."
}
},
{
"from_name": null,
"id": "b733a4ddf8464a8c97ebdf0f6f17f96d",
"to_name": null,
"type": null,
"value": {
"end": 5105,
"labels": [
"PREAMBLE"
],
"start": 4936,
"text": "On the other hand, he was absolutely protected\nfrom criminal prosecution on the basis of the evidence to be\ngiven by him when examined by the prosecution as an\napprover."
}
},
{
"from_name": null,
"id": "c6c0290f58f843ed9fd51526beb4cc78",
"to_name": null,
"type": null,
"value": {
"end": 5126,
"labels": [
"PREAMBLE"
],
"start": 5106,
"text": "[1101B-C]\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "b7b4dd23671b404cb4b9baecf6db9f54",
"to_name": null,
"type": null,
"value": {
"end": 5199,
"labels": [
"NONE"
],
"start": 5126,
"text": "\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 640 of 1988."
}
},
{
"from_name": null,
"id": "b5c68804f5514fc89806fb38df3456a8",
"to_name": null,
"type": null,
"value": {
"end": 5304,
"labels": [
"NONE"
],
"start": 5207,
"text": "From the Judgment and Order dated 27.4.1987 of the Delhi High Court in Crl. Rev. No. 221 of 1986."
}
},
{
"from_name": null,
"id": "69031545ac9f40318762947c7d4b4614",
"to_name": null,
"type": null,
"value": {
"end": 5414,
"labels": [
"NONE"
],
"start": 5304,
"text": "\n B. Datta, Additional Solicitor General, Kitty Kumar Mangalam and Miss A. Subhashini for the Appellant."
}
},
{
"from_name": null,
"id": "e43386cc8eb546eabe5427e447ca113d",
"to_name": null,
"type": null,
"value": {
"end": 5473,
"labels": [
"NONE"
],
"start": 5414,
"text": "\n Hardev Singh and R.K. Agnihotri for the Respondent."
}
},
{
"from_name": null,
"id": "ffbe2e725d0e48bb91aaa91e23de0c22",
"to_name": null,
"type": null,
"value": {
"end": 5531,
"labels": [
"NONE"
],
"start": 5481,
"text": "The Judgment of the Court was delivered by RAY, J."
}
},
{
"from_name": null,
"id": "d4e0eea1ca2042a2a707ad0278756c04",
"to_name": null,
"type": null,
"value": {
"end": 5554,
"labels": [
"NONE"
],
"start": 5532,
"text": "Special leave granted."
}
},
{
"from_name": null,
"id": "ecdb2065aaac4e71a5eb4dcb0087345e",
"to_name": null,
"type": null,
"value": {
"end": 5593,
"labels": [
"NONE"
],
"start": 5555,
"text": "Heard learned counsel for the parties."
}
},
{
"from_name": null,
"id": "d88b930f98d34f1385fb7472475dffa6",
"to_name": null,
"type": null,
"value": {
"end": 5894,
"labels": [
"FAC"
],
"start": 5601,
"text": "The prosecution case, in short, is that to create fear and terror to commit murder and to aggravate tense situation some persons hatched a conspiracy to massacre the general public by placing transistor bombs at public places and also by placing them in public transports as trains, buses etc."
}
},
{
"from_name": null,
"id": "44ea01bd97f04cbf98c8fe24a37a5963",
"to_name": null,
"type": null,
"value": {
"end": 6060,
"labels": [
"FAC"
],
"start": 5894,
"text": "\nMany explosions took place in May 1985 in Delhi and parts of Uttar Pradesh in consequence whereof many persons were killed in Delhi and some places in Uttar Pradesh."
}
},
{
"from_name": null,
"id": "cd673a5ab45f475b9c67ca28dc190753",
"to_name": null,
"type": null,
"value": {
"end": 6165,
"labels": [
"FAC"
],
"start": 6061,
"text": "Several cases were registered in different police stations of Aligarh, Ghaziabad, Meerut and Khekra etc."
}
},
{
"from_name": null,
"id": "d8d56c9871144c3da2d488aaa0460b59",
"to_name": null,
"type": null,
"value": {
"end": 6386,
"labels": [
"FAC"
],
"start": 6166,
"text": "In Delhi F.I.R.\nNo. 238 of 1985 was registered i.e. State v. Kartar Singh Narang etc. wherein all the accused persons named therein were arrested except one Gurdeep Singh Sehgal who was declared as a proclaimed offender."
}
},
{
"from_name": null,
"id": "2fe8223d725f41709b6dc916df1c080c",
"to_name": null,
"type": null,
"value": {
"end": 6536,
"labels": [
"FAC"
],
"start": 6387,
"text": "The accused Jagjit Singh and Gurvinder Singh turned approvers and they were granted pardon under Section 308 of the Code of Criminal Procedure, 1973."
}
},
{
"from_name": null,
"id": "7be8dc2025e54f2084c962c2dbc101df",
"to_name": null,
"type": null,
"value": {
"end": 6677,
"labels": [
"FAC"
],
"start": 6537,
"text": "They were examined as P.W. 1 and P.W. 2 in the committal case proceeding in the court of Chief Metropolitan Magistrate on December 24, 1985."
}
},
{
"from_name": null,
"id": "e6d2421e99c3461f9fb98f996512d7f7",
"to_name": null,
"type": null,
"value": {
"end": 6771,
"labels": [
"FAC"
],
"start": 6678,
"text": "Both these approvers resiled from their statements in the court of the Committing Magistrate."
}
},
{
"from_name": null,
"id": "f1fe01e56818433fa985c7902ec8a34d",
"to_name": null,
"type": null,
"value": {
"end": 6975,
"labels": [
"FAC"
],
"start": 6772,
"text": "The accused persons were committed to the Court of Sessions to stand their trial for offences under Sections 121, 121A, 153, 153A, 302 and 307 I.P.C. and sections 3, 5 and 6 of Explosives Substances Act."
}
},
{
"from_name": null,
"id": "dd00e52932514e9a9a524eb2a64dde11",
"to_name": null,
"type": null,
"value": {
"end": 6988,
"labels": [
"FAC"
],
"start": 6975,
"text": "\n PG NO. 1096"
}
},
{
"from_name": null,
"id": "40167bb81b384e82a01f27df49c69975",
"to_name": null,
"type": null,
"value": {
"end": 7329,
"labels": [
"FAC"
],
"start": 6989,
"text": "On February 27, 1986, Surjit Kaur, another accused in the Transistor Bomb Case, against whom cases were pending in the Meerut, Ghaziabad and Aligarh Districts of U.P., moved an application under Section 406 of the Code of Criminal Procedure before this Court for transfer of criminal case pending in the court of Meerut to a court in Delhi."
}
},
{
"from_name": null,
"id": "f2f1dcde5197432c918d77c961f16c5e",
"to_name": null,
"type": null,
"value": {
"end": 7770,
"labels": [
"FAC"
],
"start": 7330,
"text": "This Court after hearing Counsel for the State of Uttar Pradesh has directed that criminal cases referred to at Serial Nos.\n1, 2, 3 and 5 in paragraph 2 of the transfer petition stand transferred to the Court of the Chief Metropolitan Magistrate, Delhi and shall be tried along with the case instituted in the Court of the Chief Metropolitan Magistrate, Delhi arising out of F.I.R. No. 238 of 1985 of Police Station, Patel Nagar, New Delhi."
}
},
{
"from_name": null,
"id": "c48fbb9074d04a0d831937035d437316",
"to_name": null,
"type": null,
"value": {
"end": 8101,
"labels": [
"FAC"
],
"start": 7771,
"text": "When the matter was taken up in the Court of Sessions, the respondent, Jagjit Singh, the approver moved an application that he cannot be examined as a witness as he had not accepted the pardon and did not support the prosecution version and he was forced to make a wrong statement by the police before the Metropolitan Magistrate."
}
},
{
"from_name": null,
"id": "24e23a1170ed45cc80cd4424cfc94cf7",
"to_name": null,
"type": null,
"value": {
"end": 8210,
"labels": [
"RLC"
],
"start": 8102,
"text": "The application was rejected by the Trial Judge after hearing the arguments of the parties on March 1, 1986."
}
},
{
"from_name": null,
"id": "ee047dbbd3d546b080bc2daac278f9e6",
"to_name": null,
"type": null,
"value": {
"end": 8351,
"labels": [
"FAC"
],
"start": 8210,
"text": "\n Against this order, a Criminal Revision Petition No. 92 of 1986 was filed by the respondent, Jagjit Singh in the High Court at Delhi."
}
},
{
"from_name": null,
"id": "30552ed75ae943ea813f4389f1538e20",
"to_name": null,
"type": null,
"value": {
"end": 8697,
"labels": [
"FAC"
],
"start": 8352,
"text": "This application was heard by Jagdish Chandra, J who dismissed the petition on August 12, 1986 holding that the mandate of the law requiring that the approver shall be examined both before the Committing Magistrate as well as during trial as a witness, is binding not only on the trial court and the prosecution but also on the approver as well."
}
},
{
"from_name": null,
"id": "ccd7313a83214693be3aaebef2c7fd40",
"to_name": null,
"type": null,
"value": {
"end": 8871,
"labels": [
"FAC"
],
"start": 8697,
"text": "\n Thereafter, one of the accused person who was a proclaimed offender was arrested and a supplementary challan was filed in the Court of Metropolitan Magistrate, Delhi."
}
},
{
"from_name": null,
"id": "400c21a1f0484556b885607ee42fa04d",
"to_name": null,
"type": null,
"value": {
"end": 9035,
"labels": [
"FAC"
],
"start": 8872,
"text": "The respondent, Jagjit Singh was sought to be examined as an approver by the prosecution, in the said supplementary committal proceeding in F.I.R. No. 238 of 1985."
}
},
{
"from_name": null,
"id": "3bf9e733adfd40d0bf37355010baaec4",
"to_name": null,
"type": null,
"value": {
"end": 9301,
"labels": [
"FAC"
],
"start": 9036,
"text": "The respondent objected to his being summoned as an approver on the ground inter alia that he cannot be examined as a witness in a case though he is figuring as an accused person in other five cases on the same facts and circumstances which are being jointly tried."
}
},
{
"from_name": null,
"id": "046f69dfce784627bc5dbab3c10f13f3",
"to_name": null,
"type": null,
"value": {
"end": 9404,
"labels": [
"RLC"
],
"start": 9302,
"text": "The Chief Metropolitan Magistrate, Delhi dismissed the application by his order dated October 6, 1986."
}
},
{
"from_name": null,
"id": "410b168637344ddb893060f8ca6e1bf3",
"to_name": null,
"type": null,
"value": {
"end": 9501,
"labels": [
"FAC"
],
"start": 9405,
"text": "Against this order the respondent Jagjit Singh filed Criminal Revision Petition No. 221 of 1986."
}
},
{
"from_name": null,
"id": "da0b05b6760345c18d5eccec3557aae8",
"to_name": null,
"type": null,
"value": {
"end": 9681,
"labels": [
"RLC"
],
"start": 9502,
"text": "M.K. Chawla, J after hearing the parties allowed the Revision Petition and directed the State not to examine the respondent-approver as an approver in case F.I.R. No. 238 of 1985."
}
},
{
"from_name": null,
"id": "486877f61fa04b5d886283db6d39e53f",
"to_name": null,
"type": null,
"value": {
"end": 9694,
"labels": [
"FAC"
],
"start": 9681,
"text": "\n PG NO. 1097"
}
},
{
"from_name": null,
"id": "37c495f472f44612801ca1f24069dee9",
"to_name": null,
"type": null,
"value": {
"end": 9772,
"labels": [
"FAC"
],
"start": 9695,
"text": "Aggrieved by this order this appeal by special leave has been filed by State."
}
},
{
"from_name": null,
"id": "3186ff6ff12546b9be83b2a9b7eec558",
"to_name": null,
"type": null,
"value": {
"end": 9984,
"labels": [
"ARG_RESPONDENT"
],
"start": 9772,
"text": "\n It has been urged that the statement recorded under Section 164 of the Code of Criminal Procedure was not made by the respondent, Jagjit Singh voluntarily but it was obtained under coercion by the police."
}
},
{
"from_name": null,
"id": "a5701dd05cc9463193f600aadad46b79",
"to_name": null,
"type": null,
"value": {
"end": 10158,
"labels": [
"ARG_RESPONDENT"
],
"start": 9985,
"text": "It has also been contended that he resiled from his statements in the court of the Committing Magistrate and he has not accepted the pardon granted to him by the Magistrate."
}
},
{
"from_name": null,
"id": "3af280eb115445e49598a39cff7e6a13",
"to_name": null,
"type": null,
"value": {
"end": 10300,
"labels": [
"ARG_RESPONDENT"
],
"start": 10159,
"text": "He should be arrayed as an accused in the case F.I.R. No. 238/85 and should be tried as an accused along with other accused in the said case."
}
},
{
"from_name": null,
"id": "394be162213c47de98dbb6f876b073ba",
"to_name": null,
"type": null,
"value": {
"end": 10534,
"labels": [
"ANALYSIS"
],
"start": 10301,
"text": "This contention is not tenable in as much as the pardon granted to the respondent, Jagjit Singh was accepted by him and other approver, Gurvinder Singh who were examined as P.W. 1 and P.W. 2 in the court of the Committing Magistrate."
}
},
{
"from_name": null,
"id": "a5779f1744464957892576f4cf42156f",
"to_name": null,
"type": null,
"value": {
"end": 10634,
"labels": [
"ANALYSIS"
],
"start": 10535,
"text": "These approvers, of course, resiled from their statement in the court of the Committing Magistrate."
}
},
{
"from_name": null,
"id": "a72d575bb38a4244a500cd1d0e1aaa31",
"to_name": null,
"type": null,
"value": {
"end": 10784,
"labels": [
"ARG_RESPONDENT"
],
"start": 10635,
"text": "It has therefore, been submitted that the prosecution cannot examine him as a witness in the said case as he has cast away the pardon granted to him."
}
},
{
"from_name": null,
"id": "20845e675c41424c801be90703b306af",
"to_name": null,
"type": null,
"value": {
"end": 11110,
"labels": [
"ANALYSIS"
],
"start": 10785,
"text": "This submission, in our considered opinion, is not tenable in as much as sub-section (4) of Section 306 of Code of Criminal Procedure clearly enjoins that a person accepting a tender of pardon has to be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any."
}
},
{
"from_name": null,
"id": "7f6094c9305941a1a1daecdf345e7fc5",
"to_name": null,
"type": null,
"value": {
"end": 11318,
"labels": [
"ANALYSIS"
],
"start": 11111,
"text": "It is therefore, a mandate of the provisions of the said Act to the prosecution to examine the approver to whom pardon has been granted as a witness both in the Committing Court as well as in the trial court"
}
},
{
"from_name": null,
"id": "7d012989a2e34da2a910ccd3479acffc",
"to_name": null,
"type": null,
"value": {
"end": 11337,
"labels": [
"ANALYSIS"
],
"start": 11319,
"text": "It does not matter"
}
},
{
"from_name": null,
"id": "0f3e3e20cc8f46cd9c91516c80ece8f4",
"to_name": null,
"type": null,
"value": {
"end": 11345,
"labels": [
"ANALYSIS"
],
"start": 11338,
"text": "whether"
}
},
{
"from_name": null,
"id": "b2732d05bc74485f923a84d17e82140f",
"to_name": null,
"type": null,
"value": {
"end": 11734,
"labels": [
"ANALYSIS"
],
"start": 11346,
"text": "the approver has resiled from his statement and has not made a full and true disclosure of whole of the circumstances within his knowledge relating to the offence so long as the Public Prosecutor does not certify that in his opinion the approver has either wilfully concealed anything essential or has given false evidence contrary to the condition on which the tender of pardon was made."
}
},
{
"from_name": null,
"id": "f30cb3f39db14853bfed201691778ae3",
"to_name": null,
"type": null,
"value": {
"end": 11933,
"labels": [
"ARG_RESPONDENT"
],
"start": 11734,
"text": "\n It has been next contended that the grant of pardon is in the nature of a contract between the State granting the pardon on the one hand and the person accepting the pardon on the other hand."
}
},
{
"from_name": null,
"id": "e505b0cca3824f7eb267d6087dc8a928",
"to_name": null,
"type": null,
"value": {
"end": 12080,
"labels": [
"ARG_RESPONDENT"
],
"start": 11934,
"text": "As the State has the power to revoke the pardon at any time the approver has also got the reciprocal right to cast away the pardon granted to him."
}
},
{
"from_name": null,
"id": "96a7b9f3a6f64fd38e296560ac07c9f5",
"to_name": null,
"type": null,
"value": {
"end": 12117,
"labels": [
"ANALYSIS"
],
"start": 12081,
"text": "This submission is also not tenable."
}
},
{
"from_name": null,
"id": "c8e33fe5d9624d08a559b8b7bc04ae96",
"to_name": null,
"type": null,
"value": {
"end": 12232,
"labels": [
"ANALYSIS"
],
"start": 12118,
"text": "The power to grant pardon carries with it the right to impose a condition limiting the operation of such a pardon."
}
},
{
"from_name": null,
"id": "493e5e877c274223a699268ef15b9029",
"to_name": null,
"type": null,
"value": {
"end": 12374,
"labels": [
"ANALYSIS"
],
"start": 12233,
"text": "Hence a pardoning power can attach any condition, precedent or subsequent so long as it is not illegal, immoral or impossible of performance."
}
},
{
"from_name": null,
"id": "92514c8c35544c37991c5b5cda04fcca",
"to_name": null,
"type": null,
"value": {
"end": 12692,
"labels": [
"ANALYSIS"
],
"start": 12374,
"text": "\nSection 306 clearly enjoins that the approver who was PG NO 1098 granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other concerned whether as principal or abettor, in the commission thereof."
}
},
{
"from_name": null,
"id": "2aab9d435dad4b4f9ac40c4890069656",
"to_name": null,
"type": null,
"value": {
"end": 12948,
"labels": [
"ANALYSIS"
],
"start": 12693,
"text": "It is because of this mandate, the State can not withdraw the pardon from the approver nor the approver can cast away the pardon granted to him till he is examined as a witness by the prosecution both in the Committing Court as well as in the trial court."
}
},
{
"from_name": null,
"id": "3d4dea42a3c34b639afdbf4b29b51758",
"to_name": null,
"type": null,
"value": {
"end": 13203,
"labels": [
"ANALYSIS"
],
"start": 12949,
"text": "The approver may have resiled from the statement made before the Magistrate in the Committing Court and may not have complied with the condition on which pardon was granted to him, still the prosecution has to examine him as a witness in the trial court."
}
},
{
"from_name": null,
"id": "39d92d593e554203bcbb01a845863637",
"to_name": null,
"type": null,
"value": {
"end": 13577,
"labels": [
"ANALYSIS"
],
"start": 13204,
"text": "It is only when the Public Prosecutor certifies that the approver has not complied with the conditions on which the tender was made by wilfully concealing anything essential or by giving false evidence, he may be tried under section 308 of the Code of Criminal Procedure not only for the offence in respect of which pardon was granted but also in respect of other offences."
}
},
{
"from_name": null,
"id": "2cb5ddfd30104bf0b13d55d39802bd42",
"to_name": null,
"type": null,
"value": {
"end": 13778,
"labels": [
"ANALYSIS"
],
"start": 13578,
"text": "In these circumstances, the question of casting away the pardon granted to an approver and his claim not to be examined by the prosecution as a witness before the trial court is without any substance."
}
},
{
"from_name": null,
"id": "7beed1196f834512aad83ce7748d19c0",
"to_name": null,
"type": null,
"value": {
"end": 14238,
"labels": [
"ARG_RESPONDENT"
],
"start": 13779,
"text": "It has been submitted in this connection by citing a decision In re Arusami Goundan, AIR 1959 (Madras) 274 that the accomplice who has been tendered a pardon if at any stage either wilfully conceals material particulars or gives false evidence and thereby fails to comply with the conditions on which pardon was tendered to him and thereby incurs its forfeiture he should not be compelled by the prosecution to be examined as a witness before the trial court."
}
},
{
"from_name": null,
"id": "e9797df82d0d4f9e8ef830adf5b1ec86",
"to_name": null,
"type": null,
"value": {
"end": 14743,
"labels": [
"PRE_RELIED"
],
"start": 14239,
"text": "It has been observed even in the said case that the provisions of Section 337(2) of the old Code of Criminal Procedure, 1898 (5 of 1898) provide that the approver who has been tendered pardon must be examined both in the Committing Court and the Court of Sessions it has been held that: \"The obligation to make a full and true disclosure would arise whenever the approver is lawfully called upon to give evidence touching the matter; it may be in the Committing court, or, it may be in he Sessions Court."
}
},
{
"from_name": null,
"id": "a978f3b46fa746f0b0410c0c4101e3c5",
"to_name": null,
"type": null,
"value": {
"end": 14890,
"labels": [
"PRE_RELIED"
],
"start": 14744,
"text": "But, the obligation to make a full and true disclosure rests on the approver at every stage at which he can be lawfully required to give evidence."
}
},
{
"from_name": null,
"id": "6cddbe4dabf64db09ad05bab98eb3f04",
"to_name": null,
"type": null,
"value": {
"end": 15102,
"labels": [
"PRE_RELIED"
],
"start": 14891,
"text": "If at any stage he either wilfully conceals material particulars or gives false evidence he would failed to comply with the conditions on which the pardon was tendered to him and thereby incurred its forfeiture."
}
},
{
"from_name": null,
"id": "e42f1ce45ac44c25a5439a9f1b99158b",
"to_name": null,
"type": null,
"value": {
"end": 15428,
"labels": [
"PRE_RELIED"
],
"start": 15104,
"text": "Neither as a matter of reason or logic, nor as a matter PG NO 1099 of statutory interpretation can it be said that S. 339(1) is dependent on or connected with S. 337(2) in the sense that the approver must be examined both in the Committing Court and the Sessions Court before it can be held that he has forfeited his pardon."
}
},
{
"from_name": null,
"id": "dbad812048bf4aaa93a93c2aa9ec1969",
"to_name": null,
"type": null,
"value": {
"end": 15548,
"labels": [
"PRE_RELIED"
],
"start": 15429,
"text": "It is sufficient if he fails to conform to the conditions on which the pardon has been granted to him at either stage.\""
}
},
{
"from_name": null,
"id": "8cd59619bbda4721a4cd2d342db7d15c",
"to_name": null,
"type": null,
"value": {
"end": 15901,
"labels": [
"PRE_RELIED"
],
"start": 15550,
"text": "This decision has been considered in Emperor v. Shandino Dhaniparto, AIR 1940 (Sind) 114 wherein it has been held that: \"When an accused after accepting pardon denies all knowledge of facts before the Committing Magistrate and the case is committed to Sessions Court the pardon cannot be forfeited before the accused is examined in the Sessions Court."
}
},
{
"from_name": null,
"id": "65df00e136c149b7878d48cacc4f301a",
"to_name": null,
"type": null,
"value": {
"end": 16115,
"labels": [
"PRE_RELIED"
],
"start": 15902,
"text": "Once a pardon is tendered and accepted, S. 337(2) renders it obligatory for the prosecution to examine the approver both in the Committing Magistrate s Court and in the Sessions Court should the case be committed."
}
},
{
"from_name": null,
"id": "0584aaf135334d7d83e24ecb5b543aa2",
"to_name": null,
"type": null,
"value": {
"end": 16209,
"labels": [
"PRE_RELIED"
],
"start": 16116,
"text": "Failure of the prosecution to examine the approver in the Sessions Court vitiates the trial.\""
}
},
{
"from_name": null,
"id": "4cd449a8d4fa4e8b8928f3671087b643",
"to_name": null,
"type": null,
"value": {
"end": 16402,
"labels": [
"ANALYSIS"
],
"start": 16209,
"text": "\n The provisions of Sections 337 and 339 of the old Code of Criminal Procedure are almost in identical terms with the provisions of Sections 306 and 308 of the Code of Criminal Procedure, 1973."
}
},
{
"from_name": null,
"id": "60492b5c54b7406fa538d53350afd5e5",
"to_name": null,
"type": null,
"value": {
"end": 16477,
"labels": [
"ANALYSIS"
],
"start": 16403,
"text": "This submission on a plain reading of these sections, cannot be sustained."
}
},
{
"from_name": null,
"id": "3ca0f863659e4dc6954c6d146641085c",
"to_name": null,
"type": null,
"value": {
"end": 16778,
"labels": [
"ARG_RESPONDENT"
],
"start": 16477,
"text": "\n It has been urged with great vehemence that the appellant, Jagjit Singh was granted pardon with regard to case F.I.R. No. 238 of 1985 whereas his name appears as an accused in the other four cases which have been directed to be tried along with above case wherein the facts are almost similar."
}
},
{
"from_name": null,
"id": "d8f11e4a5fe8421f93c05d80c620acd0",
"to_name": null,
"type": null,
"value": {
"end": 16979,
"labels": [
"ARG_RESPONDENT"
],
"start": 16779,
"text": "The appellant-approver in such circumstances should not be examined by the prosecution as a witness in as much as his evidence may be used in the other criminal cases wherein he figures as an accused."
}
},
{
"from_name": null,
"id": "4b946e95f2f144e49dfc181c2ffdfb2b",
"to_name": null,
"type": null,
"value": {
"end": 17062,
"labels": [
"ARG_RESPONDENT"
],
"start": 16980,
"text": "This is against the protection given by Article 2(3) of the Constitution of India."
}
},
{
"from_name": null,
"id": "9f18f19b03f34a7fa0273cd15c7db55a",
"to_name": null,
"type": null,
"value": {
"end": 17262,
"labels": [
"ARG_RESPONDENT"
],
"start": 17063,
"text": "It has, therefore, been submitted that the order dated April 27, 1987 passed in Revision Petition No. 221 of 1986 directing the State not to examine the approver as a witness should not be set aside."
}
},
{
"from_name": null,
"id": "ab753d834f0847f8a0dbbb25d29f93ae",
"to_name": null,
"type": null,
"value": {
"end": 17469,
"labels": [
"ANALYSIS"
],
"start": 17263,
"text": "This contention is also not tenable in as much as once an accused is granted pardon under section 306 of the Code of Criminal Procedure, he ceases to be an accused and becomes a witness for the prosecution."
}
},
{
"from_name": null,
"id": "9eb0d34a7c7e46519fff3a94c5e10fbb",
"to_name": null,
"type": null,
"value": {
"end": 17763,
"labels": [
"ANALYSIS"
],
"start": 17470,
"text": "The only condition imposed by the provisions of the Act is that the approver must make a full and true disclosure of the whole of the circumstances within his PG NO 1100 knowledge relating to the offence and to every other concerned, whether as principal or abettor, in the commission thereof."
}
},
{
"from_name": null,
"id": "a72f67fa405442ad8aa33452a24db3ec",
"to_name": null,
"type": null,
"value": {
"end": 17992,
"labels": [
"ANALYSIS"
],
"start": 17764,
"text": "So long as the Prosecution does not certify that he has failed to do so he continues to be a witness and the prosecution is under obligation to examine him as a witness both in the Committing Court as well as in the trial court."
}
},
{
"from_name": null,
"id": "00845df7bddf4f06839ea2cc29d3921b",
"to_name": null,
"type": null,
"value": {
"end": 18309,
"labels": [
"PRE_RELIED"
],
"start": 17993,
"text": "This has been made very clear by this Court in the case of A.J. Peiris v. State of Madras, AIR 1954(SC) 616 wherein it has been observed that: \".....We think that the moment the pardon was tendered to the accused he must be presumed to have been discharged whereupon he ceased to be an accused and became a witness.\""
}
},
{
"from_name": null,
"id": "d3cf1e78670b4c5aa75487b37a26461d",
"to_name": null,
"type": null,
"value": {
"end": 18501,
"labels": [
"ANALYSIS"
],
"start": 18309,
"text": "\n We have already held hereinbefore that sub-section 4 of Section 306 casts an obligation on the prosecution to examine the approver both in the Committing Court as well as in the trial court."
}
},
{
"from_name": null,
"id": "aa87537e0f874c698e52eb10f858af8d",
"to_name": null,
"type": null,
"value": {
"end": 18777,
"labels": [
"ANALYSIS"
],
"start": 18502,
"text": "So the appellant who has been granted pardon in case F.I.R. No. 238/85 has to be examined by the prosecution in the trial court no matter that he has resiled from his earlier statement and tried to conceal what was within his knowledge with regard to the offence in question."
}
},
{
"from_name": null,
"id": "37bc7d59dc724000b30f5e181f1c991b",
"to_name": null,
"type": null,
"value": {
"end": 19290,
"labels": [
"STA"
],
"start": 18777,
"text": "\nIt will be pertinent to mention here Section 132 of the Indian Evidence Act, 1872 which lays down that: \"A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceedings, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind."
}
},
{
"from_name": null,
"id": "50351949ed654475a5be5b2fe5a77178",
"to_name": null,
"type": null,
"value": {
"end": 19300,
"labels": [
"STA"
],
"start": 19292,
"text": "Proviso-"
}
},
{
"from_name": null,
"id": "c01e67e90cda4945b69d9b0b1d0ce19c",
"to_name": null,
"type": null,
"value": {
"end": 19531,
"labels": [
"STA"
],
"start": 19301,
"text": "Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be against him in any criminal proceeding, except a prosecution for giving false evidence by such answer."
}
},
{
"from_name": null,
"id": "b0fe317c23244b4184c85f2e19502ba8",
"to_name": null,
"type": null,
"value": {
"end": 19721,
"labels": [
"ANALYSIS"
],
"start": 19531,
"text": "\n Therefore, a witness is legally bound to answer any question which is relevant to the matter in issue even if the answer to such question is likely to criminate him directly or indirectly."
}
},
{
"from_name": null,
"id": "0a84d844883c440480de80c64186766e",
"to_name": null,
"type": null,
"value": {
"end": 20008,
"labels": [
"ANALYSIS"
],
"start": 19722,
"text": "Proviso to Section 132 expressly provides that such answer which a witness is compelled to give shall not subject him to any arrest or prosecution PG NO 1101 nor the same can be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer."
}
},
{
"from_name": null,
"id": "36d76de96abe48a88ffe16b4574a4e9c",
"to_name": null,
"type": null,
"value": {
"end": 20242,
"labels": [
"ANALYSIS"
],
"start": 20009,
"text": "The provisions of proviso to Section 132 of the Indian Evidence Act clearly protect a witness from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to criminate him directly or indirectly."
}
},
{
"from_name": null,
"id": "cef594425be64558a5e1f7b872d874e8",
"to_name": null,
"type": null,
"value": {
"end": 20445,
"labels": [
"ANALYSIS"
],
"start": 20243,
"text": "In view of this provision, the apprehension of the respondent that his evidence as approver will be used against him in the other four criminal cases where he figures as an accused is without any basis."
}
},
{
"from_name": null,
"id": "16a8a4e2246e4c218e704a3221521f2a",
"to_name": null,
"type": null,
"value": {
"end": 20631,
"labels": [
"ANALYSIS"
],
"start": 20446,
"text": "On the other hand, he is absolutely protected from criminal prosecution on the basis of the evidence to be given by him when examined by the prosecution as an approver in the said case."
}
},
{
"from_name": null,
"id": "12033ea1926b48dabc7690c1d31f78b4",
"to_name": null,
"type": null,
"value": {
"end": 20694,
"labels": [
"ANALYSIS"
],
"start": 20631,
"text": "\n This submission of the respondent is, therefore, not tenable."
}
},
{
"from_name": null,
"id": "8e0ee27803f14765963bcb6ca3a443fe",
"to_name": null,
"type": null,
"value": {
"end": 20821,
"labels": [
"PRE_RELIED"
],
"start": 20695,
"text": "It is pertinent to refer in this connection the decision of this Court in Laxmipat Choraria and Ors. v.\n State of Maharashtra."
}
},
{
"from_name": null,
"id": "830893dbb59d4003b6012a2c835373ce",
"to_name": null,
"type": null,
"value": {
"end": 21234,
"labels": [
"PRE_RELIED"
],
"start": 20822,
"text": "[1968] 2 SCR 626 wherein it has been observed by Hidayatullah, J as he then was that: \"....... Under s. 132 a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding (among others) upon the ground that the answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind."
}
},
{
"from_name": null,
"id": "de192d8411f040afa99368226ce11d6f",
"to_name": null,
"type": null,
"value": {
"end": 21494,
"labels": [
"PRE_RELIED"
],
"start": 21235,
"text": "The safeguard to this compulsion is that no such answer which the witness is compelled to give exposes him to any arrest or prosecution or can ii be prove i against him in any criminal proceeding except a prosecution for giving false evidence by such answer.\""
}
},
{
"from_name": null,
"id": "d20ea0cee1e1491498f05197f9ef19e0",
"to_name": null,
"type": null,
"value": {
"end": 21601,
"labels": [
"RATIO"
],
"start": 21494,
"text": "\n So Section 132 of the Evidence Act sufficiently protects him since his testimony does not go against him."
}
},
{
"from_name": null,
"id": "1ec9d9a5c1a64a8bb423c5c8d6497892",
"to_name": null,
"type": null,
"value": {
"end": 21652,
"labels": [
"RPC"
],
"start": 21601,
"text": "\n For the reasons aforesaid, the appeal is allowed."
}
},
{
"from_name": null,
"id": "d1f14db1ebff454ba2f13fdc90dc875f",
"to_name": null,
"type": null,
"value": {
"end": 21761,
"labels": [
"RPC"
],
"start": 21653,
"text": "The judgment and order dated April 27, 1987 passed in Revision Petition No. 221 of 1986 is hereby set aside."
}
},
{
"from_name": null,
"id": "8adf1005d8c7458093a3f5599df282ca",
"to_name": null,
"type": null,
"value": {
"end": 21769,
"labels": [
"NONE"
],
"start": 21761,
"text": "\n R.S.S."
}
},
{
"from_name": null,
"id": "7b623cc12023466fb53214acd31dc1cb",
"to_name": null,
"type": null,
"value": {
"end": 21799,
"labels": [
"RPC"
],
"start": 21769,
"text": " Appeal allowed."
}
}
]
}
] | 4,090 | {
"text": "PETITIONER:\nSTATE (DELHI ADMN.)\n\nVs.\n\nRESPONDENT:\nJAGJIT SINGH\n\nDATE OF JUDGMENT15/12/1988\n\nBENCH:\nRAY, B.C. (J)\nBENCH:\nRAY, B.C. (J)\nOJHA, N.D. (J)\n\nCITATION:\n\n1989 AIR 598 1988 SCR Supl. (3)1093\n\n1989 SCC Supl. (2) 770 JT 1988 (4) 715\n\n1988 SCALE (2)1578\n\nACT:\n Criminal Procedure Code, 1973: Section 306 Person\n\naccepting tender of pardon- To be examined as witness in\nCourt of Magistrate taking cognizance of offence as well as\ntrial Court- Person resiling from earlier statement-\nLiability to be examined not absolved.\n\nHEADNOTE:\n Many explosions took place in May 1985 in Delhi and\n\nUttar Pradesh killing many persons. Consequently, a number\nof cases were registered. In Delhi, FIR No. 238 of 1985 was\nregistered wherein the respondent and another accused turned\napprovers and were granted pardon under section 306 of the\nCode of Criminal Procedure, 1973. Both these approvers\nhowever resiled from their statements in the Court of the\nCommitting Magistrate.\n\n Four Criminal cases pending in Meerut were later\ntransferred by the Supreme Court to the Court of the Chief\nMetropolitan Magistrate, Delhi, to be tried along with the\ncase arising out of FIR No. 238 of 1985.\n\n In the supplementary committal proceedings in case FIR\nNo. 238 of 1985, the respondent objected to his being\nsummoned as an approver on the ground inter alia that he\ncould not be examined as a witness in the case because he\nwas figuring as an accused person in the other four cases on\nthe same facts and circumstances, which were being jointly\ntried. The Chief Metropolitan Magistrate dismissed the\napplication. The High Court allowed the respondent's\nrevision petition and directed the State not to examine the\nrespondent as an approver in case F.I.R. No. 238 of 1985.\n\n In the appeal before this Court, it was inter alia\ncontended that the prosecution could not examine the\nrespondent as a witness because he had cast away the pardon\ngranted to him.\n\n Allowing the appeal,\n HELD: 1. The pardon granted to the respondent was\naccepted by him and he was examined as a prosecution witness\nin the Court of the Committing Magistrate, though he resiled\nfrom his statement there. [1097C]\n\n PG NO 1093\n PG NO. 1094\n\n 2. It is a mandate of the provisions of the Criminal\nProcedure Code to the prosecution to examine the approver to\nwhom pardon had been granted as a witness both in the\nCommitting Court as well as in the trial court. [1097E]\n\n 3. Section 306 clearly enjoins that the approver who was\ngranted pardon had to comply with the condition of making a\nfull and true disclosure of the whole of the circumstances\nwithin his knowledge relative to the offencc and to every\nother concerned whether as principal or abettor, in the\ncommission thereof. It is because of this mandate that the\nState cannot withdraw the pardon from the approver nor the\napprover can cast away the pardon granted to him, till he is\nexamined as a witness by the prosecution both in the\nCommitting Court as well as in the trial court. [1097H;\n1098A-B]\n\n 4. The respondent who has been granted pardon in case\nF.I.R. No. 238 of 1985 has to be examined by the prosecution\nin the trial court no matter that he has resiled from his\nearlier statement and tried to conceal what was within his\nknowledge with regard to the offence in question. [1100D]\n\n In re: Arusami Goundan, AIR 1959 Mad. 274 and Emperor v.\nShandino Bhaniperto, AIR 1940 (Sind) 114 referred to.\n\n 5. Once an accused is granted pardon under section 306,\nhe ceases to be an accused and becomes a witness for the\nprosecution. So long as the prosecution does not certify\nthat he has failed to make a full and true disclosure of the\nwhole of the circumstance within his knowledge relating to\nthe offence, he continues to be a witness and the\nprosecution is under obligation to examine him as a witness\nboth in the Committing Court as well as in the trial court.\n[1099H; 1100A-B]\n\n A.J. Peiris v. State of Madras, AIR 1954 (SC) 616\nreferred to.\n\n 6. A witness is legally bound to answer any question\nwhich is relevant to the matter in issue even if the answer\nto such question is likely to incriminate him directly or\nindirectly. [1100G]\n\n 7. The proviso to section 132 of the Indian Evidence Act\nclearly protects a witness from being prosecuted on the\nbasis of the answers given by him in a criminal proceeding\nwhich tend to incriminate him directly or indirectly.\n[1101A]\n\n PG NO. 1095\n 8. The apprehension of the respondent that his evidence\nas approver will be used against him in the other four\ncriminal cases where he figures as an accused was without\nany basis. On the other hand, he was absolutely protected\nfrom criminal prosecution on the basis of the evidence to be\ngiven by him when examined by the prosecution as an\napprover. [1101B-C]\n\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 640 of 1988.\n From the Judgment and Order dated 27.4.1987 of the Delhi High Court in Crl. Rev. No. 221 of 1986.\n B. Datta, Additional Solicitor General, Kitty Kumar Mangalam and Miss A. Subhashini for the Appellant.\n Hardev Singh and R.K. Agnihotri for the Respondent.\n The Judgment of the Court was delivered by RAY, J. Special leave granted. Heard learned counsel for the parties.\n The prosecution case, in short, is that to create fear and terror to commit murder and to aggravate tense situation some persons hatched a conspiracy to massacre the general public by placing transistor bombs at public places and also by placing them in public transports as trains, buses etc.\nMany explosions took place in May 1985 in Delhi and parts of Uttar Pradesh in consequence whereof many persons were killed in Delhi and some places in Uttar Pradesh. Several cases were registered in different police stations of Aligarh, Ghaziabad, Meerut and Khekra etc. In Delhi F.I.R.\nNo. 238 of 1985 was registered i.e. State v. Kartar Singh Narang etc. wherein all the accused persons named therein were arrested except one Gurdeep Singh Sehgal who was declared as a proclaimed offender. The accused Jagjit Singh and Gurvinder Singh turned approvers and they were granted pardon under Section 308 of the Code of Criminal Procedure, 1973. They were examined as P.W. 1 and P.W. 2 in the committal case proceeding in the court of Chief Metropolitan Magistrate on December 24, 1985. Both these approvers resiled from their statements in the court of the Committing Magistrate. The accused persons were committed to the Court of Sessions to stand their trial for offences under Sections 121, 121A, 153, 153A, 302 and 307 I.P.C. and sections 3, 5 and 6 of Explosives Substances Act.\n PG NO. 1096 On February 27, 1986, Surjit Kaur, another accused in the Transistor Bomb Case, against whom cases were pending in the Meerut, Ghaziabad and Aligarh Districts of U.P., moved an application under Section 406 of the Code of Criminal Procedure before this Court for transfer of criminal case pending in the court of Meerut to a court in Delhi. This Court after hearing Counsel for the State of Uttar Pradesh has directed that criminal cases referred to at Serial Nos.\n1, 2, 3 and 5 in paragraph 2 of the transfer petition stand transferred to the Court of the Chief Metropolitan Magistrate, Delhi and shall be tried along with the case instituted in the Court of the Chief Metropolitan Magistrate, Delhi arising out of F.I.R. No. 238 of 1985 of Police Station, Patel Nagar, New Delhi. When the matter was taken up in the Court of Sessions, the respondent, Jagjit Singh, the approver moved an application that he cannot be examined as a witness as he had not accepted the pardon and did not support the prosecution version and he was forced to make a wrong statement by the police before the Metropolitan Magistrate. The application was rejected by the Trial Judge after hearing the arguments of the parties on March 1, 1986.\n Against this order, a Criminal Revision Petition No. 92 of 1986 was filed by the respondent, Jagjit Singh in the High Court at Delhi. This application was heard by Jagdish Chandra, J who dismissed the petition on August 12, 1986 holding that the mandate of the law requiring that the approver shall be examined both before the Committing Magistrate as well as during trial as a witness, is binding not only on the trial court and the prosecution but also on the approver as well.\n Thereafter, one of the accused person who was a proclaimed offender was arrested and a supplementary challan was filed in the Court of Metropolitan Magistrate, Delhi.\nThe respondent, Jagjit Singh was sought to be examined as an approver by the prosecution, in the said supplementary committal proceeding in F.I.R. No. 238 of 1985. The respondent objected to his being summoned as an approver on the ground inter alia that he cannot be examined as a witness in a case though he is figuring as an accused person in other five cases on the same facts and circumstances which are being jointly tried. The Chief Metropolitan Magistrate, Delhi dismissed the application by his order dated October 6, 1986. Against this order the respondent Jagjit Singh filed Criminal Revision Petition No. 221 of 1986. M.K. Chawla, J after hearing the parties allowed the Revision Petition and directed the State not to examine the respondent-approver as an approver in case F.I.R. No. 238 of 1985.\n PG NO. 1097 Aggrieved by this order this appeal by special leave has been filed by State.\n It has been urged that the statement recorded under Section 164 of the Code of Criminal Procedure was not made by the respondent, Jagjit Singh voluntarily but it was obtained under coercion by the police. It has also been contended that he resiled from his statements in the court of the Committing Magistrate and he has not accepted the pardon granted to him by the Magistrate. He should be arrayed as an accused in the case F.I.R. No. 238/85 and should be tried as an accused along with other accused in the said case. This contention is not tenable in as much as the pardon granted to the respondent, Jagjit Singh was accepted by him and other approver, Gurvinder Singh who were examined as P.W. 1 and P.W. 2 in the court of the Committing Magistrate. These approvers, of course, resiled from their statement in the court of the Committing Magistrate. It has therefore, been submitted that the prosecution cannot examine him as a witness in the said case as he has cast away the pardon granted to him. This submission, in our considered opinion, is not tenable in as much as sub-section (4) of Section 306 of Code of Criminal Procedure clearly enjoins that a person accepting a tender of pardon has to be examined as a witness in the court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. It is therefore, a mandate of the provisions of the said Act to the prosecution to examine the approver to whom pardon has been granted as a witness both in the Committing Court as well as in the trial court It does not matter whether the approver has resiled from his statement and has not made a full and true disclosure of whole of the circumstances within his knowledge relating to the offence so long as the Public Prosecutor does not certify that in his opinion the approver has either wilfully concealed anything essential or has given false evidence contrary to the condition on which the tender of pardon was made.\n It has been next contended that the grant of pardon is in the nature of a contract between the State granting the pardon on the one hand and the person accepting the pardon on the other hand. As the State has the power to revoke the pardon at any time the approver has also got the reciprocal right to cast away the pardon granted to him. This submission is also not tenable. The power to grant pardon carries with it the right to impose a condition limiting the operation of such a pardon. Hence a pardoning power can attach any condition, precedent or subsequent so long as it is not illegal, immoral or impossible of performance.\nSection 306 clearly enjoins that the approver who was PG NO 1098 granted pardon had to comply with the condition of making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other concerned whether as principal or abettor, in the commission thereof. It is because of this mandate, the State can not withdraw the pardon from the approver nor the approver can cast away the pardon granted to him till he is examined as a witness by the prosecution both in the Committing Court as well as in the trial court. The approver may have resiled from the statement made before the Magistrate in the Committing Court and may not have complied with the condition on which pardon was granted to him, still the prosecution has to examine him as a witness in the trial court. It is only when the Public Prosecutor certifies that the approver has not complied with the conditions on which the tender was made by wilfully concealing anything essential or by giving false evidence, he may be tried under section 308 of the Code of Criminal Procedure not only for the offence in respect of which pardon was granted but also in respect of other offences. In these circumstances, the question of casting away the pardon granted to an approver and his claim not to be examined by the prosecution as a witness before the trial court is without any substance. It has been submitted in this connection by citing a decision In re Arusami Goundan, AIR 1959 (Madras) 274 that the accomplice who has been tendered a pardon if at any stage either wilfully conceals material particulars or gives false evidence and thereby fails to comply with the conditions on which pardon was tendered to him and thereby incurs its forfeiture he should not be compelled by the prosecution to be examined as a witness before the trial court. It has been observed even in the said case that the provisions of Section 337(2) of the old Code of Criminal Procedure, 1898 (5 of 1898) provide that the approver who has been tendered pardon must be examined both in the Committing Court and the Court of Sessions it has been held that: \"The obligation to make a full and true disclosure would arise whenever the approver is lawfully called upon to give evidence touching the matter; it may be in the Committing court, or, it may be in he Sessions Court. But, the obligation to make a full and true disclosure rests on the approver at every stage at which he can be lawfully required to give evidence. If at any stage he either wilfully conceals material particulars or gives false evidence he would failed to comply with the conditions on which the pardon was tendered to him and thereby incurred its forfeiture.\n Neither as a matter of reason or logic, nor as a matter PG NO 1099 of statutory interpretation can it be said that S. 339(1) is dependent on or connected with S. 337(2) in the sense that the approver must be examined both in the Committing Court and the Sessions Court before it can be held that he has forfeited his pardon. It is sufficient if he fails to conform to the conditions on which the pardon has been granted to him at either stage.\"\n This decision has been considered in Emperor v. Shandino Dhaniparto, AIR 1940 (Sind) 114 wherein it has been held that: \"When an accused after accepting pardon denies all knowledge of facts before the Committing Magistrate and the case is committed to Sessions Court the pardon cannot be forfeited before the accused is examined in the Sessions Court. Once a pardon is tendered and accepted, S. 337(2) renders it obligatory for the prosecution to examine the approver both in the Committing Magistrate s Court and in the Sessions Court should the case be committed. Failure of the prosecution to examine the approver in the Sessions Court vitiates the trial.\"\n The provisions of Sections 337 and 339 of the old Code of Criminal Procedure are almost in identical terms with the provisions of Sections 306 and 308 of the Code of Criminal Procedure, 1973. This submission on a plain reading of these sections, cannot be sustained.\n It has been urged with great vehemence that the appellant, Jagjit Singh was granted pardon with regard to case F.I.R. No. 238 of 1985 whereas his name appears as an accused in the other four cases which have been directed to be tried along with above case wherein the facts are almost similar. The appellant-approver in such circumstances should not be examined by the prosecution as a witness in as much as his evidence may be used in the other criminal cases wherein he figures as an accused. This is against the protection given by Article 2(3) of the Constitution of India. It has, therefore, been submitted that the order dated April 27, 1987 passed in Revision Petition No. 221 of 1986 directing the State not to examine the approver as a witness should not be set aside. This contention is also not tenable in as much as once an accused is granted pardon under section 306 of the Code of Criminal Procedure, he ceases to be an accused and becomes a witness for the prosecution. The only condition imposed by the provisions of the Act is that the approver must make a full and true disclosure of the whole of the circumstances within his PG NO 1100 knowledge relating to the offence and to every other concerned, whether as principal or abettor, in the commission thereof. So long as the Prosecution does not certify that he has failed to do so he continues to be a witness and the prosecution is under obligation to examine him as a witness both in the Committing Court as well as in the trial court. This has been made very clear by this Court in the case of A.J. Peiris v. State of Madras, AIR 1954(SC) 616 wherein it has been observed that: \".....We think that the moment the pardon was tendered to the accused he must be presumed to have been discharged whereupon he ceased to be an accused and became a witness.\"\n We have already held hereinbefore that sub-section 4 of Section 306 casts an obligation on the prosecution to examine the approver both in the Committing Court as well as in the trial court. So the appellant who has been granted pardon in case F.I.R. No. 238/85 has to be examined by the prosecution in the trial court no matter that he has resiled from his earlier statement and tried to conceal what was within his knowledge with regard to the offence in question.\nIt will be pertinent to mention here Section 132 of the Indian Evidence Act, 1872 which lays down that: \"A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceedings, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind.\n Proviso- Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.\n Therefore, a witness is legally bound to answer any question which is relevant to the matter in issue even if the answer to such question is likely to criminate him directly or indirectly. Proviso to Section 132 expressly provides that such answer which a witness is compelled to give shall not subject him to any arrest or prosecution PG NO 1101 nor the same can be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer. The provisions of proviso to Section 132 of the Indian Evidence Act clearly protect a witness from being prosecuted on the basis of the answers given by him in a criminal proceeding which tend to criminate him directly or indirectly. In view of this provision, the apprehension of the respondent that his evidence as approver will be used against him in the other four criminal cases where he figures as an accused is without any basis. On the other hand, he is absolutely protected from criminal prosecution on the basis of the evidence to be given by him when examined by the prosecution as an approver in the said case.\n This submission of the respondent is, therefore, not tenable. It is pertinent to refer in this connection the decision of this Court in Laxmipat Choraria and Ors. v.\n State of Maharashtra. [1968] 2 SCR 626 wherein it has been observed by Hidayatullah, J as he then was that: \"....... Under s. 132 a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding (among others) upon the ground that the answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind. The safeguard to this compulsion is that no such answer which the witness is compelled to give exposes him to any arrest or prosecution or can ii be prove i against him in any criminal proceeding except a prosecution for giving false evidence by such answer.\"\n So Section 132 of the Evidence Act sufficiently protects him since his testimony does not go against him.\n For the reasons aforesaid, the appeal is allowed. The judgment and order dated April 27, 1987 passed in Revision Petition No. 221 of 1986 is hereby set aside.\n R.S.S. Appeal allowed.\n "
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