dedol-hf/india-case-legal-rag huggingface dataset:
limit which Parliament is authorised to fix can.be fixed  in
this indirect way. What Parliament is empowered to do  under
article 22(7) (b) is to prescribe--,
   "the  maximum  period for which any person  may  in  any
class or classes of cases be detained."'
    It  cannot  do this by saying that no  person  shall  be
detained  beyond  the 26th of February, 1952,  because  that
means  that persons arrested on the 27th of February,  1951,
can be kept under detention for a year while those  arrested
on the 25th of February, 1952, can only be detained for  one
day.   That, in my judgment, is   not what is meant by  pre-
scribing  a maximum period.
In  the  next place, when Parliament is  authorised   to  do
this, it is expected to do so consciously and   deliberately
after giving the matter due and mature consideration. It  is
not  possible to say that Parliament had this  provision  in
mind  and intended to act under it when it merely fixed  the
duration of the Act.. Had the matter been properly discussed
and placed before Parliament in the way it should have been,
it  is  conceivable that it might.have considered  that  the
maximum  period  of detention should not  exceed,  say,  six
months though the duration of the Act should be one
  651
year.  In  other words, that persons could  continue  to  be
arrested so long as the Act was in force but they could  not
be  kept under detention for more than six months. With  the
utmost  respect, I cannot agree that functions  so  solemnly
entrusted tO the care of Parliament under these  fundamental
clauses can be discharged unconsciously.
    In the third place, I cannot agree that these detentions
would come to an end with the expiry of the Act. The rule in
the case of temporary Acts is that-
    "as a general. rule, and unless it contains some special
provision to the contrary, after a temporary Act has expired
no  proceedings can be taken upon it, and it ceases to  have
any  further effect.  Therefore, offences committed  against
temporary  Acts must be prosecuted and punished  before  the
Act  expires."  (Craies on Statute Law,  4th  edition,  page
347).
    But transactions which are concluded and complete before
the  Act expires continue in being despite the expiry.   See
Craies  on Statute Law, page 348, and 31 Halsbury's Laws  of
England (Hailsham Edition), page 5 13.  I take this to  mean
that if a man is tried for an offence created by a temporary
Act  and is found guilty and sentenced to, say, five  years'
imprisonment,  he would have to serve his term even  if  the
Act  were to expire the next day.  In my opinion, the  posi-
tion  is the same in the case of detentions. A man,  who  is
arrested under a temporary detention Act and-validly ordered
to  be detained for a particular period, would not be  enti-
tled  to claim release before his time just because the  Act
expired earlier.
    Then  again.   The Act' we are considering  has  special
provision to the contrary.  Section 11 ( 1 ) empowers either
a State or the Union Government to order the detention of  a
person "for such period as it thinks fit". If this provision
is  not ultra vires, then the Act in express  terms  permits
the appropriate Government to order a detention which  shall
endure  beyond  the life of the Act itself, and  unless  the
fundamental provisions of the Constitution can be called  in
aid,  there is nothing to prevent Parliament  from  enacting
such a
652
law.  Therefore, the mere fact that the Act under considera-
tion  is to expire on the 26th of February, 1952, does  not,
in my opinion, mean that detentions under it must necessari-
ly  come to an end on that date. That in turn means that  no
maximum period has been prescribed even indirectly.
    Looked  straight in the face, what does the decision  of
the majority upholding the validity of section 11 (1) import
if it is pushed to its logical conclusion ? To me it  spells
just  this.  The Constitution tells all persons resident  in
the land--
    "Here  is the full extent of your liberty so far as  the
length of detention is concerned. We guarantee that you will
not be detained beyond three months unless Parliament other-
wise  directs, either generally or in your particular  class
of  case; but we empower Parliament to smash  the  guarantee
absolutely if it so chooses without let or hindrance,  with-
out restriction. Though we authorise Parliament to prescribe
a maximum. limit of detention if it so chooses, we place  no
compulsion on it to do so and we authorise it to pass legis-
lation which will empower any person or authority Parliament
chooses to name, right down to a police constable, to arrest
you  and detain you as long as he pleases, for the  duration
of your life if he wants, so that you may linger and rot  in
jail till you die as did men in the Bastille."
     In  the absence of restrictions Parliament  undoubtedly
has  these  powers, for it can  legislate  about  preventive
detention.  But if you remove the restrictions, what is left
of the fundamental right ? My concept of a fundamental right
is something which Parliament cannot touch save by an amend-
ment of the Constitution.  The full content of the right can
be as small or as narrow as you please, but unless there  is
a  residue which can answer that test, there is to  my  mind
nothing fundamental.  Now, I have no doubt that a  fundamen-
tal right regarding the length of detention was intended  to
be  conferred. It would be pointless to make  the  provision
about three months and place it in the chapter on  Fundamen-
tal  Rights if that were not so; so also there would  be  no
point in the
653
elaborate provisions regarding this in clauses (4) and  (7).
A simple clause saying that no detention shall exceed  three
months "unless Parliament otherwise directs" would have  met
the  case. It is therefore clear to my mind  that  something
fundamental regarding the length     detention which Parlia-
ment  could not touch save by amendment of the  Constitution
was  intended  to  be conferred. But if section  11  (1)  is
upheld,  what  is there left which is beyond  the  reach  of
Parliament  ? Parliament has here in effect said that  there
need  be no general limit to the duration of detentions  and
that  lesser authorities can fix the duration in each  indi-
vidual  ease  and  are free to detain for as  long  as  they
please.  If that is so, then what is there left of  anything
fundamental  regarding the maximum length of detention ?  To
my  mind,  the whole object of the elaborate  provisions  in
clauses (4) and (7) is to place restraints on powers regard-
ing the length of indefinite and arbitrary detentions  which
would otherwise be absolute.
    For these reasons, I am of opinion that section 11(1) is
ultra  vires.  My only hesitation has been on the  score  of
Gopalan's  case(1).  I have searched long and  anxiously  to
see whether this question is concluded there and whether  my
hands are tied.  After considerable study of the decision, I
have reached the conclusion that I am not bound.
    There  were  six  Judges there.  The  present  Act,  the
amending  Act  of  1951, was not  under  consideration,  but
section 11 of the old Act,. which corresponds to section  11
(1)of the new, was considered. But only two Judges,  namely,
my Lord the Chief Justice and my brother Mahajan, dealt with
this  section directly. Their views are directly counter  to
mine.  They expressly hold that section 11 of the old Act is
intra vires. That means. that section 11 (1) of the  present
Act  would  also have to be upheld on their view.   But  the
other four Judges did not discuss the vires of section 11 at
all.   They concentrated their attention on sections 12  and
14 of the old Act.  It is true my
 (1)  [1950] S.C.R. 88.
  84
654
brother  Das  made a general observation at the end  of  his
judgment  that  in his view "the impugned Act is  valid  law
except  as to section 14" but he did not expressly  consider
section 11.  In the circumstances, I do not think  Gopalan's
case concludes the matter.
    It is perhaps ironical that I should struggle to  uphold
these  freedoms  in  favour of a class of  persons  who.  if
rumour is to be accredited and if the list of their  activi-
ties furnished to us is a true guide. would be the first  to
destroy them if they but had the power.  But I cannot  allow
personal predilections to sway my judgment  of the Constitu-
tion.   As  Lord Justice Scrutton remarked in  Rex  v.  Home
Secretary
   `` It is, indeed, one test of belief in principles if you
apply  them  to  cases with which you have  no  sympathy  at
all.''
    and  as Mr. Justice Holmes of the United States  Supreme
Court said,  speaking of the  American Constitution,
    "If there is any principle of the Constitution that more
imperatively  calls for attachment than any other it is  the
principle  of free thought--not free thought for  those  who
agree with us but freedom for the thought that we hate.."
    I  respectfully dissent from the majority view and  con-
sider that section 11 (1) is ultra vires.  It follows, in my
view, that the present detentions are bad.  I am of  opinion
that the petitioners in these cases are entitled to  immedi-
ate release.
                                 Petitions dismissed.
    Agent for the petitioner in Petition No. 303: Subrahman-
yam.
    Agent  for the Petitioners in Petitions Nos.  618,  619,
621,622 and 624 to 631: V.P.K. Nambiyar.
Agent  for  the State of Madras: P.A. Mehta.
Agent  for  the State of Assam: Naunit Lal.
Agent for the Union of India: P.A. Mehta.
(1) (1923) L.J.K.B, 797.
655
PETITIONER:
RAMESHWAR
        Vs.
RESPONDENT:
THE STATE OF RAJASTHAN.
DATE OF JUDGMENT:
20/12/1951
BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
FAZAL ALI, SAIYID
CITATION:
 1952 AIR   54            1952 SCR  377
 CITATOR INFO :
 RF         1952 SC 159  (11)
 F          1953 SC 364  (25)
 RF         1954 SC 359  (4)
 F          1958 SC 143  (9)
 R          1958 SC 500  (9)
 R          1960 SC 961  (6)
 D          1965 SC 328  (7)
F          1968 SC 832  (5,12)
 F          1972 SC2661  (10,11)
 R          1973 SC 469  (11)
 R          1977 SC 472  (13)
 R          1977 SC1579  (23)
 R          1983 SC 753  (7)
 F          1983 SC 911  (9)
 RF         1988 SC 139  (11)
 RF         1988 SC 672  (7)
 RF         1991 SC1463  (5)
ACT:
    Indian Penal Code (XLV of 1860), s. 376--Indian Evidence
Act (I of 1872), s. 114 (b) 118, 133, 157--Indian Oaths  Act
(X of 1873), ss. 5, 6, 13--Rape on young girl--Necessity  of
corroboration of girl's testimony--Statement  made to  moth-
er--Whether  sufficient corroboration--Rule as to corrobora-
tion--Nature  and  extent of corroboration necessary--Admis-
sibility of statement made "at or about" the time of  occur-
rence--Admissibility of evidence of child under 12 years.
HEADNOTE:
    An  omission  to administer an oath, even to  an  adult,
goes  only  to the credibility of the witness  and  not  his
competency; so also an omission of the Court or the authori-
ty examining a child witness formally to record that in  its
opinion  the  witness understands the duty of  speaking  the
truth though he does not understand the nature of an oath or
affirmation,  does not affect the admissibility of the  evi-
dence given by that witness.
    Though  it  is  desirable that  judges  and  magistrates
should  always  record their opinion when a child is  to  be
examined that the child understands the duty of speaking the
truth, and state why they think so, whether a magistrate  or
judge  was really of that opinion can be gathered  from  the
circumstances  when there is no formal certificate  to  that
effect on the record.
    Mohamed  Sugal Esa v. The King (A.I.R. 1946 P.C. 3),  R,
v.  Sewa Bhogta (14 Beng. L,R. 294 F.N.), Samujh v.  Emperor
(1907) 10 O.C. 337) referred to.
    Though a woman who has been raped is not an  accomplice,
her  evidence  has been treated by the  Courts  on  somewhat
similar lines, and the rule which requires corroboration  of
such  evidence  save in exceptional  circumstances  has  now
hardened into law.
    The rule laid down in King v. Baskerville (L. R. 1916, 2
K.B. 658) with regard to the admissibility of the uneorrobo-
rated evidence of an accomplice is the law in India also  so
far as accomplices are concerned and it is not any higher in
the case of sexual offences.  The only clarification of  the
rule  that is necessary for the purposes of India  is  where
this class of offence is tried by a judge without the aid of
a jury.  In such cases it is necessary that the judge should
give  some  indication in his judgment that he has  had  the
rule  of  caution  in his mind and should  proceed  to  give
reasons for considering it unnecessary to require corrobora-
tion on the facts of the particular case before him and show
why he considers it safe to convict without corroboration in
that particular case.  There is, however, no rule of law or
378
practice  that  there must in every  case  be  corroboration
before  a  conviction can be allowed to stand.
   The  view that though corroboration should ordinarily  be
required in the case of a grown-up woman, it is  unnecessary
in the case of a child of tender years is not correct.   The
true  position is that in every case of this type  the  rule
about the advisability of corroboration should be present to
the mind of the judge; whether corroboration is  unnecessary
is a question of fact in every case.
    Bishram v. Emperor (A.I.R. 1944 Nag. 363) not  approved;
Mohamed Sugal Esa v. The King (A.I.R. 1946 P.C. 3) followed.
    The  nature and the extent of the corroboration that  is
required when it is not considered safe to dispense with it,
must  necessarily vary with the  circumstances of each  case
and  also according to the particular circumstances  of  the
offence  charged.  It is however clear (i) that  it  is  not
necessary  that there should be independent confirmation  of
every material circumstance in the sense that the  independ-
ent  evidence in the case, apart from the testimony  of  the
complainant  or accomplice, should itself be  sufficient  to
sustain conviction; all that is required is that there  must
be "some additional evidence rendering it probable that  the
story  of  the accomplice (or the complainant) is  true  and
that  it is reasonably safe to act upon it," (ii) The  inde-
pendent evidence must not only make it safe to believe  that
the  crime  was committed but must in  some  way  reasonably
connect  the accused with it; (iii) the  corroboration  must
come from independent sources and thus ordinarily the testi-
mony  of one accomplice would not be sufficient to  corrobo-
rate that of another accomplice;(iv) the corroboration  need
not be direct evidence that the accused committed the crime;
it is sufficient if it is merely circumstantial evidence  of
his connection with the crime.
    A  previous statement of an accomplice or a  complainant
is admissible as evidence of conduct; it is also  admissible
as  corroborg live evidence provided it fulfills the  condi-
tions laid down in see. 157 of the Evidence Act.
    The  main  test as to whether a previous  statement  was
made "at or about the time when the fact took place", within
the meaning of sec. 157, Evidence Act, is whether the state-
ment was made as early as can reasonably be expected in  the
circumstances of the case and before there was an opportuni-
ty for tutoring or concoction.
    Where  a person was charged with having  committed  rape
upon  a  girl eight years of age and the  only  evidence  to
corroborate the testimony of the girl connecting the accused
with  the  crime was a statement made by her to  her  mother
some four hours after the incident, that she had been  raped
by the accused: Held, that in the circumstances of the  case
the  testimony of the mother was admissible  as  independent
corroborative evidence and
379
the  girl's previous statement was sufficient  corroboration
of the girl's testimony for convicting the accused.
JUDGMENT:
    CRIMINAL  APPELLATE  JURISDICTION:  Criminal Appeal  No.
2 of 1951.  This Was an appeal under art. 134 (1) (c) of the
Constitution  from the Judgment and Order of the High  Court
of  Rajasthan (Nawal Kishore C.J., and Mehta J.) dated  16th
October,  1950,  in Criminal Appeal No. 63 of  Samvat  2005,
revising  an order of acquittal of the Sessions Judge,  Jai-
pur,  in Criminal Appeal Case No. 200 of Sam vat  2004,  and
convicting  the accused of an offence under sec. 376 of  the
Indian  Penal  Code. The material facts are  stated  in  the
judgment.
K.N. Aggarwala, for the accused.
G.S. Mathur, for the State of Rajasthan.
1951.  December 20. BOSE J. delivered judgment  as  fol-
lows. FAZL ALI J. agreed.
    BOSE  J. -The appellant Rameshwar was charged with  com-
mitting rape on a young girl Mst. Purni, eight years of age.
He  was committed to Sessions and was convicted by  the  As-
sistant  Sessions Judge, Sawai Jaipur, and sentenced to  one
year's rigorous imprisonment and a fine of Rs. 250.
    An appeal was made to the Sessions Judge at Jaipur, that
being  the appropriate appellate tribunal in that area.  The
learned Sessions Judge held that the evidence was sufficient
for moral conviction but fell short of legal proof  because,
in his opinion, the law requires corroboration of the  story
of  the prosecution in such cases as a matter of  precaution
and  the corroborative evidence, in so far as it  sought  to
connect  the appellant with the crime, was legally  insuffi-
cient  though morally enough. He was satisfied however  that
the girl had been raped by somebody. Accordingly, he acquit-
ted the accused giving him the benefit of the doubt.
     The State of Sawal Jaipur and Gangapur appealed against
the acquittal to the High Court at Jaipur.
380
   The learned High Court Judges held that the law  requires
corroboration in such cases but held that the girl's  state-
ment made to her mother was legally admissible as corrobora-
tion  and  considering that sufficient they  set  aside  the
acquittal and restored the conviction and sentence.
The  High  Court  later granted leave  to  appeal  under
article 134 (1)(c) of the Constitution as the case  involved
questions of law of general importance.
    The first point taken before  us related to the admissi-
bility  of  the evidence of the girl herself.  Her  age  was
stated to be seven or eight years at the time of the  exami-
nation by the learned Assistant Sessions Judge who  recorded
her testimony.  He certified that she did not understand the
sanctity  of an oath and accordingly did not administer  one
to  her.  He did not certify that the child  understood  the
duty of speaking the truth.
    The proviso to section 5 of the Indian Oaths Act,  1873,
prescribes that--"Provided that where the witness is a child
under  twelve years of age, and the Court or  person  having
authority to examine such witness is of opinion that, though
he  understands the duty of speaking the truth, he does  not
understand the nature of an oath or affirmation, the forego-
ing provisions of this section and the provisions of section
6 shall not apply to such witness, but in any such case  the
absence of an oath or affirmation shall not render  inadmis-
sible  any  evidence given by such witness  nor  affect  the
obligation of the witness to state the truth."
    The question is whether the opinion referred to must  be
formally  recorded  or whether it can be inferred  from  the
circumstances in which the deposition was taken.
The proviso quoted above must be read along with section
118 of the Evidence Act and section 13 of the Oaths Act.  In
my  opinion, an omission to administer an oath, even  to  an
adult,  goes only to the credibility of the witness and  not
his competency.  The question of competency is dealt with in
section 118.  Every
381
witness  is competent unless the Court considers he is  pre-
vented from understanding the questions put to him, or  from
giving  rational answers by reason of tender years,  extreme
old age, disease whether of body or mind, or any other cause
of the same kind.  It will be observed that there is  always
competency in fact unless the court considers otherwise.  No
other ground of incompetency is given, therefore, unless the
Oaths  Act  adds additional grounds of  incompetency  it  is
evident that section 118 must prevail.
    Now  the  Oaths Act does not deal with  competency.  Its
main  object  is to render persons who give  false  evidence
liable to prosecution.  It is true a subsidiary object is to
bring home to the witness the solemnity of the occasion  and
to  impress upon him the duty of speaking the truth, but  in
view of section 118 these matters only touch credibility and
not  admissibility. In my opinion, section 13 of  the  Oaths
Act places this beyond doubt. It states--
    "No   omission   to   take  any  oath   or    make   any
affirmation.........   and no irregularity whatever, in  the
form in which any one of them is administered, shall invali-
date  any  proceeding or render  inadmissible  any  evidence
whatever..........  "
    Section 5 is the  main  provision regarding the adminis-
tration  of  oaths. The proviso only sets out the  cases  in
which the oath is not to be administered.  If, therefore, an
omission to take the oath does not affect the  admissibility
of the evidence, it follows that irregularity of the kind we
are  considering  which  arises out of  the  proviso  cannot
affect  the  admissibility either. Section 118  remains  and
unless  the judge considers otherwise the witness is  compe-
tent.
    I  do  not think it will be useful to  consider  English
authorities on the point because we are governed here by the
terms  of  the various sections I have referred  to.  But  a
decision of the Judicial Committee of the Privyi Council  is
in  point. Their Lordships stated in Mohamed Sugal   Esa  v.
The King(1) :--
(1) A.I.R. 1946 P.C. 3 at 5
382
"Section  13,  Oaths Act, is quite  unqualified  in  its
terms  and there is nothing to suggest that it is  to  apply
only  where the omission to administer the oath  occurs  per
incuriam. If that had been the intention of the Legislature,
it would have been simple to insert words in the section  to
that effect.........  It may be observed that this  question
can no longer arise in India because in 1939 the Legislature
passed  the Oaths (Amendment) Act (Act XXXIX of 1939)  which
settles  the  law  in accordance with the  Bengal  and  Oudh
decisions referred to above."
The  decisions to which their Lordships refer are   and  Ram
Samujh  v.  Emperor(2). The decisions there  were  that  the
section being unqualified in terms did apply to a case where
the Court accepted the evidence of a child to whom the  oath
was not administered on the ground that the witness did  not
understand  its nature. The principle of the  decisions  ap-
plies here because, as their Lordships observe, the  section
is unqualified in its terms.
I would add however that it is desirable that judges and
magistrates  should  always record their  opinion  that  the
child  understands the duty of speaking the truth and  state
why  they think that, otherwise the credibility of the  wit-
ness  may  be seriously affected, so much so, that  in  some
cases it may be necessary to reject the evidence altogether.
But  whether  the  magistrate or judge really  was  of  that
opinion  can,  I think, be gathered from  the  circumstances
when  there is no formal certificate.  In the present  case,
it  is plain that the learned Judge had the proviso in  mind
because  he certified that the witness does  not  understand
the  nature  of an oath and so did not  administer  one  but
despite  that went on to take her evidence.  It is  also  an
important  fact  that the accused, who  was  represented  by
counsel, did not object.  Had he raised the point the  Judge
would doubtless have made good the omission. I am of opinion