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4. If the trial is to get delayed on account of the delay in apprehending the co-accused, it is open to the trial Court to split up the case as against this appellant and proceed therewith, so that, it can be disposed of as expeditiously as possible. If the trial is delayed on account of dilatory tactics adopted by the appellant, that itself can be treated as a ground for cancellation of bail. |
With these observations, this appeal is disposed of. |
Appeal disposed of. |
Bridge and Roof Company (India), Limited, and Others v Union of India and Others |
Supreme Court of India |
11 September 1962 |
Petition No. 62 of 1962 |
The Judgment was delivered by : K. N. Wanchoo, J. |
1. The short question raised in this writ petition under Art. 32 of the Constitution is whether production bonus is included within the term "basic wages" as defined in s. 2(b) of the Employees' Provident Funds Act, No. 19 of 1952, (hereinafter referred to as the Act Writ Petition 64 of 1962 (The Jay Engineering, Works Limited v. The Union of India 1962 Indlaw SC 311) was heard along with this petition. In that writ petition a further question arose as to the nature of the production bonus scheme in force in that company and parties have been given time to file additional. Affidavits in that connection. What we say therefore: in the present case as to reduction bonus generally may not be taken necessarily to apply to the particular scheme in the case of writ petition No. 64 of 1962. |
2. The brief facts necessary for present purposes are these. Petitioner No. 1 (hereinafter' referred to as the Company) is a public limited company engaged in the manufacture of engineering goods, structural fabrication and rolling stock, and the Act applies to the Company. The Company has a production bonus scheme in force which provides for payment of production bonus over and above wages fixed by the major engineering award of 1958, published in the Calcutta gazette dated November 5, 1958, which governs 74 major engineering concerns in that region including the Company' That award is still in force and has fixed basic wages and dearness allowance on time rate basis for the entire major engineering industry. |
3. In addition to basic wages and dearness allowance payable under the award, the Company has two production bonus schemes one for the hourly rated workers and the other for the rest. It is unnecessary to go into the details of the two schemes; but the main feature of the two schemes is that production bonus begins to be paid on certain rates specified in the two schemes when the output reaches 5,000 tons per year and that no production bonus is paid when the output is less than 5,000 tons per year. It may be added that the scheme relating to the hourly rated workers has been revised from January 1, 1962 and the main feature of this revision is that the Scheme is now applicable to those workers on a quarterly basis. According to this revised scheme, production bonus begins when the output for the quarter reaches 1300 tons, and there is no production bonus if the output is below 1300 tons. In the case of other staff, the old scheme is still in force, though it is stated for the Company that negotiations are going on for revising the old scheme, presumably to bring it into line with the new scheme introduced for hourly rated workers since January 1, 1962. |
4. We may now briefly refer to the relevant provisions of the Act which require consideration. the Act provides by s. 5 for the introduction of Employees' Provident Fund Scheme for certain industries included in Schedule 1 to the Act. In consequence a Provident Fund Scheme was framed in September 1952 knows as the Employees Provident Funds Scheme, 1952, and it is applicable to the company. S. 6 of the Act provides for contribution by the employer and the employee to the provident fund and this contribution is 6- 1/4 per centum of the basic wages, dearness allowance end retaining allowance (if any) for the time being payable in the ease of both. S. 6 further provides for certain increased contribution; but we are not concerned with that in the present case. Basic wages" have been defined in s. 2(b) of the Act thus: |
"'Basic wages' means all emoluments which are earned by an employee while on duty or on leave with wages in accordance, with the terms of the contract of employment and which are paid or payable in cash to him, but does not include- |
The cash value of any food concession; |
Any dearness allowance (that is to say, all cash payments by whatever name called paid to an employee on account of a rise in the cost of living), houserent allowance, overtime allowance bonus, commission or any other similar allowance payable to the employee in respect of his employment or of work done in such employment, |
Any presents made by the employer;" |
5. Further, s. 19A of the Act provides for the removal of difficulties and lays down that, if any difficulty arises in giving effect to the provisions of the Act,, and in particular, if any doubt arises as to certain matters including ,,whether the total quantum of benefits to which an employee is entitled has been reduced by the employer", the Central Government may by order, make such provision or give such direction, not inconsistent with the provisions of the Act, as appears to it to be necessary or expedient for the removal of the doubt or difficulty, and the order of the Central Government in such cases shall be final. |
6. It appears that difficulties and doubts arose on the question whether production bonus could be taken into account in calculating the contribution of 6-1/4 per centum under s. 6 of the Act, and the Central Government directed about the March 7, 1962 that the question whether production bonus should be liable to provident fund deduction under the Act had been re-examined by it and it had been decided that production bonus, payable as part of a contract of employment either at a flat, rate or at a rate linked to the quantum of work turned out satisfied the definition of "basic wages" under s. 2 (b) of the Act. The Company was further directed to effect recovery of provident fund contributions on production bonus without any farther delay and arrear contribution in this respect payable with effect from January 1, 1960, was also to be deposited in the statutory fund immediately. The present petition was thereafter filed in April 1962 and is directed against the decision of the Central Government which was duly communicated to the Company in March 1962. |
7. The main contention of the Company is that bonus without any qualification has been expected from the terra ", basic wages" in the definition in s. 2(b) of the Act. Therefore, all kinds of bonus whether it be profit bonus or production bonus or attendance bonus or festival bonus either as an implied condition of service or as a customary payment, are excluded from "basic wages". Farther, s.6 which provides for contribution only refers to basic wages, dearness allowance and retaining allowance (if any) and contributions have to be made at the appropriate rate on these three payments and not on bonus which is not included in s. 6 It is urged that when the Act was passed in 1952 the legislature was aware of the various kinds of bonus which were being paid by various Concerns in various industries and when it decided to exclude bonus without any qualification from the term "(basic wages" as defined in s. 2(b), it was not open to the Central Government to direct that production bonus should be included in basic wages for the purposes of contribution under s. 6. Besides this contention based on the interpretation of the word "bonus" in s. 2(b), it is further contended that if the word "bonus" therein excludes production bonus the provision would be unconstitutional as it would be hit by Art. 14 of the Constitution inasmuch as production bonus is not a general feature of all industrial concerns but has been introduced only in some. The result of including production bonus within basic wages would be that some concerns where production bonus prevails would be contributing to the provident fund at a much higher rate than others where no production bonus prevails. |
8. The petition has been opposed on behalf of the Union of India and also on behalf of the two trade unions, which are existing in the Company. It is contended for the respondents that wages are the price for labour and arise out of contract, and the use of the term "basic wages" merely indicates that a certain part of the total wages is being separated for certain purposes only. Therefore production bonus being in the nature of incentive wage must be included in the definition of the term "basic wages" in s. 2(b), as basic wages there defined are "all emoluments which are earned by an employee while on duty or on leave with wages in accordance with the terms of the contract of employment and which are paid or payable in cash to him......... Therefore, production bonus being in the nature of an incentive wage is included in the terms "all emoluments" in the definition of "basic wages", for production bonus is earned by an employee while on duty in accordance with the terms of the contract of, employment. It is further submitted that when the word "bonus"' was "used in el. (ii) of the exceptions to s. 2(b), it only referred to profit bonus, as it was well established before 1952 that the use of the word "bonus" without any qualification referred to profit bonus only in industrial adjudications. Therefore, when cl. (ii) of the exceptions to s. 2(b) accepted "bonus" without any qualification it referred only to profit bonus and not to any other kind of bonus. |
9. The main question therefore that falls for decision is as to which of these two rival contentions is in consonance with s. 2 (b). There is no doubt that ",basic wages" as defined therein means all emoluments which are earned by an employee while on duty or on leave with wages in accordance with the terms of the contract of employment and which are paid or payable in cash. If there were no exceptions to this definition, there would have been no difficulty in holding that production bonus whatever be its nature would be included within these terms. The difficulty, however, arises because the definition also provides that certain things will not be included in the term "basic wages", and these are contained in three clauses. The first clause mentions the cash value of any food concession while the third clause mentions any presents made by the employer. The fact that the exceptions contain even presents made by the employer shows that though the definition mentions all emoluments which are earned in accordance with the terms of the contract of employment, care was taken to exclude presents which would ordinarily not be earned in accordance with the terms of the contract of employment. Similarly, though the definition includes "all emoluments" which are paid or payable in cash, the exception excludes the cash value of any food concession, which in any case was not payable in cash. The exceptions therefore do not seem to follow any logical pattern which would be in consonance with the main definition. |
10. Then we come to el. (ii). It excludes dearness allowance, house-rent allowance, overtime allowance, bonus, commission or any other similar allowance payable to the employee in respect of his employment or of work done in such employment. This exception suggests that even though the main part of the definition includes all emoluments which are earned in accordance with the terms of the contract of employment, certain payments which are in fact the price of labour and earned in accordance with the terms of the contract of employment are excluded from the main part of the definition of "basic wages". It is undeniable that the exceptions contained in cl. (ii) refer to payments which are earned by an employee in accordance with the terms of his contract of employment. It was admitted by counsel on both sides before us that it was difficult to find any one basis for the exceptions contained in the three clauses. |
11. It is clear however from cl. (ii) that from the definition of the word "basic wages" certain earnings were excluded, though they must be earned by employees in accordance with the terms of the contract of employment. Having excluded "dearness allowance" from the definition of "basic wages". a. 6 then provides for inclusion of dearness allowance for purposes of contribution. But that is clearly the result of the specific provision in s.6 which lays down that contribution shall be 6-1/4 per centum of the basic wages, dearness allowance and retaining allowance (if any). We must therefore try to discover some basis for the exclusion 987 in cl. (ii) as also the inclusion of dearness allowance and retaining allowance (for any). in s. 6. It seems that the basis of' inclusion in s. 6 and exclusion in cl. (ii) is that whatever is payable in all concerns' and is earned by all permanent employees is included for the purpose, of contribution under s. 6, but whatever is not payable by all concerns or may not be earned by all employees of a concern is excluded for the purpose of contribution. |
12. Dearness allowance (for examples is payable in all concerns either as an addition to basic wages or as a part of consolidated wages where a concern does not have separate dearness allowance and basic wage Similarly, retaining allowance is pay able to all permanent employees in all seasonal factories like sugar factories and is therefore included in a. 6; but house-rent allowance is not paid in many concerns and sometimes in the same concern it is paid to some employees but not to others, for the theory is that house-rent is included in the payment of basic wages plus dearness allowance or consolidated wages. Therefore, house-rent allowance which may not be payable to all employees of a concern and which is certainly not paid by all concern is taken out of the definition of "basic wages", even though the basis of payment of house rent allowance where it is paid is the contract of employment. Similarly, overtime allowance though it is generally in force in all concerns is not earned by all employees of a concern. |
13. It is also earned in accordance with the terms of the contract of employment; but because it may not be earned by all employees of a concern it is excluded from, basic wages". Similarly, commission or any other similar allowance is excluded from the definition of "basic wages" for commission and other allowances are not necessarily to be found in all concerns; nor are they necessarily earned by all employees of the same concern, though where they exist they are earned in accordance with the terms of the contract of employment. It seems therefore that the basis for the exclusion in cl. (ii) of the exceptions in s. 2 (b) is that all that is not earned in all concerns or by all employees of concern is excluded from basic wages. |
14. To this the exclusion of dearness allowance in cl. (ii) is an, exception. But that exception has been corrected by including dearness allowance in s. 6 for the purpose of contribution. Dearness allowance which is an exception in, the definition of "basic wages" is included for the purpose of contribution by s. 6 and the real exceptions therefore in el. (ii) are the other exceptions beside dearness allowance, which has been included through s. 6. |
15. This brings us to the consideration of the question of bonus, which is also an exception in el. (ii). Now the word "bonus" has been used in this clause without any qualification. Therefore, it would not be improper to infer that when the word "bonus" was used without any qualification in the clause, the legislature had in mind every kind of bonus that may be payable to an employee. It is not disputed on behalf of the respondents that bonuses other than profit bonus were in force and well-known before the Act came to be passed in 1952. For example, the Coal Mines Provident Fund and Bonus Schemes Act, No. 46 of 1948, provided for payment of bonus depending on attendance of employees during any period. Besides the attendance bonus, four other kinds of bonus had been evolved under industrial law even before 1952 and were in force in various concerns in various industries. |
16. There was first production bonus, which was in force in some concerns long before 1952 (see Messrs. Titaghur Paper Mills Co. Limited v. Its Workmen), [1959] Supp. 2 S.C.R. 1012 1959 Indlaw SC 84. Then there was festival or puja bonus which was in force as an implied term of employment long before 1952 (see Messrs. Ispahani Limited Calcutta v. Ispahani Employees' Union, [1960] 1 S.C.R. 24.). 1959 Indlaw SC 97 Then there was customary bonus in connection with some festival (see The Graham Trading Co. (India) Limited v. Its Workmen), [1960] 1 S. C. R. 107 1959 Indlaw SC 99. And lastly, there was profit bonus the principles underlying which and the determination of whose quantum were evolved by the Labour Appellate Tribunal in the Mill owners' Association v. The Rashtriya Mill Mazdoor Sangh, Bombay, [1950] I.L.J. 1247. |
17. The legislature therefore could not have been unaware that these different kinds of bonus were being paid by different concerns in different industries, when it passed the Act in 1952. Therefore, unless the contention on behalf of the respondents that bonus when it was used without qualification can only mean profit bonus is sound, it must be held that when the legislature used the term "bonus" without any qualification in cl. (ii) of the exception in s. 2 (b), it must be referring to every kind of bonus which was prevalent in the industrial field before 1952. The contention therefore of the respondents that when the term "bonus" was used in industrial law before 1952 without any qualifying term it meant only profit bonus and nothing else, requires careful consideration." |
18. We do not think however that this contention is well founded. It is true, as will appear from the terms of reference in various cases of profit bonus that the word "profit" was not used as a qualifying word before the word "bonus" in such cases. It may also be that in many cases where a particular type of bonus was in dispute, say, attendance or "puja bonus, the qualifying word "attendance" or "puja" was use in references. But it appears that where was in connection with profit bonus, the usual practice was to make the reference after qualifying the word bonus" by the year for which the profit bonus was claimed. For example, we may refer to the case of Mill owners' Association Bombay v. The Bashtrya Mill Mazdoor Sangh, (1950) L.L.J. 1247. The term of reference in Reference No. 1 of 1948 (Mill owners' Association Bombay v. The Employees in the Cotton Textile Mills Bombay) in these terms- |
"Re: Bonus for the year 1947" |
19. It seems therefore that when reference was with respect to profit bonus, the term "bonus" though not qualified by the word "profit" bad always been limited by specifying the year for which the bonus was being claimed. Though, therefore, it may be true that literally speaking, the word ", profit" was not used to qualify the word "'bonus" when references were made with respect to profit bonus, the matter was put beyond controversy that the use of the word "bonus" without any qualification was with reference to profit bonus by adding the year for which the bonus was being claimed. It would therefore be not right to say that in industrial adjudications before 1952, bonus without any qualifying word meant profit bonus and nothing else. Further though the word "profit" was not used to qualify the word "bonus", the intention was made quite clear when profit bonus was meant by using the words "for the year so and Sol# after the word "bonus". |
20. We are therefore not prepared to accept that where the word "bonus" is used without any qualification it only means profit bonus and nothing else. On the other hand, it seems to us that the use of the word "bonus" without any qualifying word before it or without any limitation as to year after it must refer to bonus of all kinds known to industrial law and industrial adjudication before 1952. The reason for the exclusion of all kinds of bonus is also in our opinion the same which led to the exclusion of house rent allowance, overtime allowance, commission and any other similar allowance, namely, that payment of bonus may not occur in all industrial concerns or it may not be made to all employees of an industrial concern (as, for example, attendance bonus) and that is why bonus of all kinds was also excluded from the definition of the term "basic wages". |
the Act is an All-India Act applicable to all industries mentioned in Sch. I and to all concerns engaged in those industries; and the intention behind the exclusion seems to be to make the incidence of provident fund the same in all industrial concerns, which are covered by the Act so that it was necessary to exclude from the wide definition of, basic wages" given in the opening part, all such payments which would not be common to all industries or to all employees in the same concern. We have already. Pointed out that to this principle, only dearness allowance in cl. (ii) is an exception; but that exception has been corrected by the inclusion of dearness allowance in s.6. We are therefore of opinion that there is no reason why when the, word "bonus" is used in el. (ii) without any qualifying word, it should not be interpreted to include all kinds of bonus which were known to industrial adjudication before 1952 and which must therefore be deemed to be within the knowledge of the legislature. |
21. This brings us to the consideration of the contention raised on behalf of the respondents that wages are the price for labour and arise out of contract, and that whatever is the price for labour and arises out of contract, was intended to be included in the definition of "basic wages" in s.2 (b), and that only those things, were excluded which were a reward for labour not arising out of the contract of employment but depending on various other considerations like profit or attendance. It may be, as we have pointed out earlier, that if there were no exceptions to the main part of the definition in s.2(b), whatever was payable in cash as price for labour and arose out of contract would be included in the term "basic wages", and that reward for labour which did not arise out of contract might not be included in the definition. But the main part of the definition is subject to exceptions in cl. (ii), and those exceptions clearly show that they include even the price for labour. |
22. It is therefore not possible to accept the contention on behalf of the respondents that whatever is price for labour and arises out of contract is include 1 in the definition of "basic wages" and therefore production bonus which is a kind of incentive wage would be included. This court had occasion to consider production bonus in Messrs. Titaghur Paper Mills Co. Ltd. v. Its Workmen, [1959] Supp 2 S. C.R. 10 12 1959 Indlaw SC 84. It was pointed out that "the payment of production bonus depends upon production and is in addition to wages. In effect, it is an incentive to higher production and is in the nature of an incentive wage". |
23. Rho straight piece rate plan where payment is made according to each piece produced is the simplest of incentive wage plans. In a straight piece rate plan, payment is made according to each piece produced and there is no minimum and the worker is free to produce as much or as little as he likes, his payment depending upon the number of pieces produced. But in such a case payment for all that is produced would be basic wage as defined in s. 2(b) of the Act, even though the worker is working under an incentive wage plan. The difficulty arises where the straight piece rate system cannot work as when the finished product is the result of the co-operative effort of a large number of workers each doing a small part which contributes to the result. In such a case the system of production bonus by tonnage or by any other standard is introduced. The core of such a plan is that there is a base or a standard above which extra payment is earned for extra production in addition to the basic wages which is the payment for work up to the base or standard. |
24. Such a plan typically guarantees time wage up to the time represented by standard performance and gives workers a share in a savings represented by superior performance. The scheme in force in the Company is a typical scheme of production bonus of this kind with a base or standard up to which basic wages as time wages are paid and thereafter extra payments are made for superior performance. This extra payment may be called incentive wage and is also called production bonus. In all such cases however the workers are not bound to produce anything beyond the base or standard that is set out. |
25. The performance may even fall below the base or standard but the minimum basic wages will have to be paid whether the base or standard is reached or not. When however the workers produce beyond the base or standard what they earn is not basic wages but production bonus or incentive wage. it is this production bonus which is outside the definition of "basic wages" in s. 2 (b), for reasons which we have already given above. The production bonus in the present case is a typical production bonus scheme of this kind and whatever therefore is earned as production bonus is payable beyond a base or standard and it cannot form part of the definition of "basic wages" in s. 2 (b) because of the exception of all kinds of bonus from that definition. We are therefore of opinion that production bonus of this type is excluded from the definition of "basic wages" in P. 2 (b) and therefore the decision of the Central Government, which was presumably under s. 19A of the Act, to remove the difficulty arising a out of giving effect to the provisions of the Act, by which such a bonus has been included in the definition of "basic wages" is incorrect. In view of this decision, it is unnecessary to consider the effect of Art. 14 in the present case |
26. We therefore allow the petition and hold that production bonus of the typical kind in force in the Company is accepted from the term "basic wages" and therefore the decision of the Central Government communicated to the Company on March 7, 1962, that provident fund contributions must also be made on the production bonus earned by the employees in 'his Company, must be set aside. As this petition was heard along with petition No.64 of 1962 and the main arguments were in that petition, we order parties to bear their own costs. |
Main Pal v State of Haryana |
Supreme Court of India |
7 September 2010 |
Cr.A. No. 1696 of 2010 Arising out of S.L.P. (Cr.) No. 4624 of 2010] |
The Judgment was delivered by: R. V. Raveendran, J. |
Leave granted. |
1. An FIR was registered on 23.3.1996 on the statement of one Prakashi Devi. She stated that on the night of 22/23.3.1996, while she and her daughter-in-law Sheela Devi were sleeping in her house, around 11.30 PM, the appellant jumped over the front wall of her house and broke the bulbs and ran away; that at that time, no male member was present in the house except the children; that around 00.30 AM the appellant again came into her house and touched her daughter-in-law Sheela Devi who woke up and raised an alarm; and that the appellant immediately ran away. The police investigated into the said complaint and submitted a report u/s. 173 of the Code of Criminal Procedure (for short 'the Code'). On that basis, the following charge was framed by the Judicial Magistrate, First Class, Karnal, against the appellant - |
"That on 23.3.1996, after having made preparation for causing hurt or assault, you committed house trespass into the house of Smt. Prakashi Devi, and thereby committed an offence punishable u/s. 452 IPC within my cognizance. Secondly on the same date, time and place, you assaulted and used criminal force against abovenamed Prakashi Devi with intent to outrage her modesty and thereby committed an offence punishable u/s. 354 IPC and within my cognizance. And I hereby direct that you be tried on the above said charge by this court." |
(Emphasis supplied) |
2. When the said charged was read over and explained to the appellant, he pleaded not guilty to the said charge and claimed trial. |
3. Prakashi Devi was examined as PW-1. She reiterated what was recorded in the FIR, that the appellant came into the house around 11.30 PM and broke the bulbs, that he came again around 00.30 AM and touched her daughter-in-law (Sheela Devi) and when her daughter-in-law woke up and raised an alarm, the appellant ran away. In her cross-examination, Prakashi Devi stated that she has five sons; that only her husband and one son named Mahavir were staying with her; that the other four sons were married and were not staying with her; that on that night, her husband was away in the fields and her son Mahavir was also not present in the house. However, when confronted with her statement recorded in the FIR, she admitted having stated that when the appellant had come first time at around 11.30 PM and broke the outside bulbs, her son woke up and went out of the house. She also admitted that the appellant did not touch her nor teased her nor abused her. Her daughter-in-law Sheela Devi gave evidence as PW-2 and stated that she was married to one Jaibir who worked in the military services; that at 11 to 11.30 PM the accused scaled the door and broke the bulbs in the verandah of her house; that when she identified the accused and raised an alarm the accused ran away; that again he came around 00.30 AM by scaling the door and caught her hand; and that when she raised an alarm and when her mother-in-law woke up, he ran away. |
4. It was elicited in her cross-examination that the accused did not go towards her mother-in-law nor say anything to her mother-in-law; that she used to come to the village where her in-laws were residing, only when her husband came home; and that the house of her father-in-law was surrounded by the houses of his brothers and their sons. Both PW1 and PW2 stated that the house of the accused was at a distance of 15-16 houses from the house of Prakashi Devi; that the accused had never come into their house earlier; that their family and the accused were not on visiting terms with each other even during functions, marriages or death, though they were on visiting terms with others in the village. PW 2 also stated that she did not know the particulars of the dispute between the accused and her in-laws. The investigating officer was examined as PW-3. The accused examined a witness Ex-Sarpanch of the village as DW-1 and he stated that there was a quarrel between the accused and complainant's son Surinder about a water course and subsequently he came to know that the quarrel was converted into a false case against the accused by registering a false allegation that the accused had outraged the modesty of a woman. |
5. The learned Magistrate by judgment dated 2.2.2001, held the accused guilty of offences u/ss. 452 and 354 Cr.PC and sentenced him for rigorous imprisonment for six months and a fine of Rs.1,000/- in default thereof simple imprisonment for one month. The appeal filed by the accused was dismissed by the Addl. Sessions Judge on 20.2.2002. The criminal revision filed by the appellant was disposed of by the High Court on 16.3.2010 upholding the conviction but reducing the sentence from six to four months rigorous imprisonment. That order is challenged by the accused. |
6. One of the contentions urged by the accused before the appellate court and High Court was that the charge against him was that he attempted to outrage the modesty of Prakashi Devi (PW-1) whereas the evidence was to show that he attempted to outrage the modesty of her daughter-in-law Sheela Devi. He contended that as the charge levelled against him was not proved, and as he was not required to defend himself against a charge that he assaulted and outraged the modesty of Sheela Devi, he ought to have been acquitted. This was negatived by the appellate court and High Court holding that an accused cannot take advantage of a technical defect in framing the charge. It was held that mentioning the name of Prakashi Devi instead of the name of Sheela Devi in the charge was an error that did not prejudice the accused. |
7. The following question therefore arises for our consideration: When the charge is that the accused assaulted 'X' and outraged her modesty, but the evidence is that he assaulted 'Y' to outrage her modesty, can the accused be punished, for having assaulting and outraging the modesty of 'Y', even though he was not charged with any offence with reference to 'Y', on the ground that the error or omission in the charge did not prejudice the accused or result in failure of justice. |
8. S. 211 of the Code relates to the contents of the charge. It inter alia provides that every charge under the Code shall state the offence with which the accused is charged. S. 212 of the Code provides that the charge shall contain the particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. S. 215 of the Code however clarifies that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. S. 464 of the Code relates to effect of omission to frame, or absence of, or error in, charge. Sub-s. (1) thereof provides that no finding, sentence or order of a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. Sub-s. (2) of sec. 464 provides that if the court of appeal, confirmation or revision is of opinion that failure of justice has in fact been occasioned, it may -- |
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge; |
(b) in case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit. |
9. In Willie (William) Slaney vs. State of Madhya Pradesh [AIR 1956 SC 116 1955 Indlaw SC 80] this court explained the concepts of "prejudice to the accused" and "failure of justice" thus:- |
"(6) Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice. |
If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is 'substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based. |
(7) Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions." |
10. This Court then examined the question as to when a procedure adopted could be said to have worked actual injustice to the accused and held : |
"Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth. |
These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land because either way they would be struck down at once. |
Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused. |
... the Code is emphatic that 'whatever' the irregularity it is not to be regarded as fatal unless there is prejudice." |
"It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction. |
Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. |
If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one." |
"In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand; also it will always be material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early stage |
But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another, because the facts can never be alike in any two cases however alike they may seem. There is no such thing as a judicial precedent on facts though counsel, and even judges, are sometimes prone to argue and to act as if there were." |
11. In Gurbachan Singh v. State of Punjab [AIR 1957 SC 623 1957 Indlaw SC 181] following Willie Slaney, this Court held: |
"In judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself." |
12. In Shamnsaheb M. Multtani vs. State of Karnataka - 2001 (2) SCC 577 2001 Indlaw SC 19904, this Court considered the meaning of the expression "failure of justice" occurring in s. 464 of Cr.PC. This Court held thus : |
"The crux of the matter is this : |
Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under section 304-B IPC when all the ingredients necessary for the said offence have come out in evidence, although he was not charged with the said offence? a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice....The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. |
One of the cardinal principles of natural justice is that no man should be condemned without being heard, (audi alteram partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalizing an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice." |
13. The above principles are reiterated in several decisions of this Court, including State of West Bengal vs. Laisal Haque - AIR 1989 SC 129 1988 Indlaw SC 706, State of A.P. vs. Thakkidiram Reddy - 1998 (6) SCC 554 1998 Indlaw SC 1286, Dalbir Singh v. State of UP [2004 (5) SCC 334 2004 Indlaw SC 247], Dumpala Chandra Reddy vs. Nimakayala Bali Reddy - 2008 (8) SCC 339 2008 Indlaw SC 1064 and Sanichar Sahni vs. State of Bihar - 2009 (7) SCC 198 2009 Indlaw SC 736. |
14. The following principles relating to sections 212, 215 and 464 of the Code, relevant to this case, become evident from the said enunciations: |
(i) The object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The charge must also contain the particulars of date, time, place and person against whom the offence was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. |
(ii) The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defence will be prejudiced. Where an accused is charged with having committed offence against one person but on the evidence led, he is convicted for committing offence against another person, without a charge being framed in respect of it, the accused will be prejudiced, resulting in a failure of justice. But there will be no prejudice or failure of justice where there was an error in the charge and the accused was aware of the error. Such knowledge can be inferred from the defence, that is, if the defence of the accused showed that he was defending himself against the real and actual charge and not the erroneous charge. |
(iii) In judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself. |
15. The respondent relied upon the decision of this court in State of Himachal Pradesh v. Geeta Ram [2000 (7) SCC 452 2000 Indlaw SC 408]. In that case the respondent was chargesheeted for an offence u/s. 376 IPC and s. 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Magistrate committed the case to Sessions Court which was specified as a special court under the Act. |
16. The special court framed a charge only for an offence u/s. 376 IPC and after trial convicted the respondent u/s. 376 IPC and sentenced him to ten years imprisonment. The High Court set aside the conviction on the technical ground that the trial court had no jurisdiction as it was a special court specified in under the SC & ST (Prevention of Atrocities) Act. This Court reversed the decision of the High Court on the ground that a special court under the Act being a sessions court, it continued to have jurisdiction to try the case for the offence u/s. 376 IPC. That matter was considered u/s. 465 of the Code and not relevant on the facts of this case. |
17. As noticed above, in this case, the charge was that appellant committed trespass into the house of Prakashi Devi for assaulting Prakashi Devi, and assaulted the said Prakashi Devi and outraged her modesty. The accused concentrated his cross-examination with reference to the said charge and elicited answers showing that he did not assault or outrage the modesty of Prakashi Devi. He did not try to challenge the evidence let in to show that he had tried to outrage the modesty of Sheela Devi, as he was not charged with such an offence. The evidence of PW-1 and PW-2 was that the appellant did not touch or tease or abuse Prakashi Devi. |
18. Their evidence was that he touched/caught the hand of Sheela Devi and when she raised an alarm he ran away. When the charge was that the accused attempted to commit trespass into the house of Prakashi Devi with intent to outrage the modesty of Prakashi Devi, the conclusion of the appellate court and the High Court that there was no failure of justice if he is punished for the offence of having assaulted Sheela Devi and outraging her modesty, is opposed to principles of fair play and natural justice embodied in sections 211, 212, 215 and 464 of the Code. |
19. When the accused is charged with having entered the house of Prakashi Devi and assaulted the said Prakashi Devi with intent to outrage her modesty and when the accused defended himself in regard to the said charge and concentrated on proving that the said charges were not true, he cannot be convicted for having assaulted and outraging the modesty of someone else, namely Sheela Devi. |
20. The accused did not have any opportunity to meet or defend himself against the charge that he assaulted Sheela Devi and outraged her modesty. Nor did he proceed with his defence on the understanding that he was being charged with having committed the offence with reference to Sheela Devi. One of the fundamental principles of justice is that an accused should know what is the charge against him so that he can build his defence in regard to that charge. An accused cannot be punished for committing an offence against 'Y' when he is charged with having committed the offence against 'X' and the entire defence of the accused was with reference to charge of having committed offence against 'X'. |
21. The illustrations under a provision of a Statute offer relevant and valuable indications as to meaning and object of the provision and are helpful in the working and application of the provision. Illustration (e) u/s. 215 of the Code, as contrasted from illustration (d) under that section, throws some light on this issue. The said illustrations are extracted below : |
"(d) A is charged with the murder of Khoda Baksh on the 21st January, 1882. In fact, the murdered person's name was Haidar Baksh, and the date of the murder was the 20th January, 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial. |
(e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh (who tried to arrest him for that murder) on the 21 st January, 1882. When charged for the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled, and that the error was material." |
22. Applying the guidance offered by the said illustrations and the legal principles evolved by this Court, the position will be as follows : If Sheela Devi alone had been present at the house at the time of the incident and the accused had assaulted and outraged the modesty of the said Sheela Devi, but in the charge the name of the victim had been erroneously mentioned, say as Sushila Devi or Prakashi Devi (though there was no person by such name), and the inquiry exclusively referred to the assault and outraging the modesty of Sheela Devi, the court could infer that the accused was not misled and the error in the charge was immaterial. |
23. On the other hand, if two persons were present in the house at the time of the incident namely Prakashi Devi and Sheela Devi and the accused is charged with trespassing into the house of Prakashi Devi, and assaulting and outraging the modesty of the said Prakashi Devi, and the witnesses refer only to the assault and outraging the modesty of Sheela Devi, the court will have to infer that the accused was prejudiced, if the accused had solely concentrated and focused his defence and entire cross-examination to show that he did not commit the offences against Prakashi Devi. |
24. The court having charged the accused with the offence of having trespassed into the house of Prakashi Devi with intent to assault her and having further charged him for having assaulted the said Prakashi Devi by outraging her modesty, convicts him on the ground that though he did not assault or outrage the modesty of Prakashi Devi, he had outraged the modesty of Sheela Devi, that would lead to failure of justice. There was a material error in the charge as it violated the requirement of sub-s. (1) of s. 212 of the Code, that the charge shall contain particulars as to the person against whom the offence was committed. |
25. There were two women present at the house at the time of the alleged incident, namely Prakashi Devi and her daughter-in-law Sheela Devi. In view of the specific charge, the accused concentrated on showing that the charge was false. He did not attempt to meet the case made out in the trial that the offence was against Sheela Devi. The accused was thus clearly misled by the error in the charge which caused prejudiced to the accused thereby occasioning failure of justice. Therefore, we are of the view that there should be a new trial after charging him with the offence of outraging the modesty of Sheela Devi. |
26. The appeal is therefore allowed, the conviction of the accused is set aside and the matter is remitted to the trial court with a direction for a new trial after framing a charge by substituting the words "her daughter-in-law Sheela Devi" for the words "abovenamed Prakashi Devi", in the second part of the charge. |
Appeal allowed. |