1 APL823.16+1.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY : NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (APL) NO. 823 OF 2016 AND CRIMINAL APPLICATION (APL) NO. 209 OF 2017 ............... Criminal Application (APL) No. 823 of 2016 APPLICANT : Bharat Bhushan S/o Vipin Chouguley, Aged 65 years, Occu. Professional , R/o Jaika Apartments, Civil Lines, Nagpur - 440 001. VERSUS RESPONDENTS: 1] State of Maharashtra, through its Secretary, Ministry of Home, Mumbai - 400 032. 2] State of Maharashtra, Through Sub-Inspector of Police Station, Sadar, Nagpur. 3] Smt. Rachana Sanjay Singh, Age 50 years, R/o 9, Mecosabagh, Christian Colony, Kadbi Chowk, Jaripatka, Nagpur. ---------------------------------------------------------------------------------------------- Shri Ranjeet B. Chougulay, Advocate for the applicant Smt. S. S. Jachak , A. P. P. for non-applicant nos.1 and 2 Shri U. P. Dable, Advocate for non-applicant no.3 ---------------------------------------------------------------------------------------------- With Criminal Application (APL) No. 209 of 2017 APPLICANT : Prashant S/o Ashok Satralkar, Aged 45 years, R/o All Saints House compound, Opp VCA, Nagpur - 440 001. 2 APL823.16+1.odt VERSUS RESPONDENTS: 1] State of Maharashtra, through its Secretary, Ministry of Home, Mantralaya, Mumbai - 32. 2] Deputy Commissioner of Police, Sadar Zone, Nagpur. 3] Assistant Commissioner of Police, Sadar Zone, Nagpur. 4] State of Maharashtra, through Sub-Inspector of Police Station, Sadar, Nagpur - 440 001. 5] Smt. Rachana Sanjay Singh, Head Mistress, St. Ursula's Girls High School, Civil Lines, Nagpur - 440 001. ---------------------------------------------------------------------------------------------- Shri Rohit R. Chouguley, Advocate for the applicant Smt. S. S. Jachak , A. P. P. for non-applicant nos.1 to 4 Shri U. P. Dable, Advocate for non-applicant no.5 ---------------------------------------------------------------------------------------------- CORAM : PRASANNA B. VARALE and ARUN D. UPADHYE, JJ. DATE : NOVEMBER 09, 2017. ORAL JUDGMENT (Per Prasanna B. Varale, J). 1] Heard Shri R.B. Chouguley and Shri R.R.Chouguley, learned counsel for the applicants, Smt. S.S. Jachak, the learned Additional Public Prosecutor for non-applicant nos.1 and 2 and non- applicant nos.1 to 4, in respectiv applications and Shri U.B. Dable, 3 APL823.16+1.odt learned counsel for non-applicant/complainant-Smt. Rachana Singh. 2] ADMIT. 3] Both these applications seek quashment of the First Information Report No. 270/2016, dated 26.09.2016, lodged at Police Station, Sadar, Nagpur for the offences punishable under Sections 354(a)(4), 295(a) of the Indian Penal Code and under Sections 66A and 67 of the Information Technology Act, 2000. 4] The report was lodged at the instance of informant Smt. Rachana Sanjay Singh i.e non-applicant no.3 in APL No.823/2016 and non-applicant no.5 in APL No.209/2017, stating therein that she is working as Principal in Saint Ursula's Girls High School and Junior College, Nagpur and the accused persons i.e. present applicants and other accused one Samsan Manwatkar (who is not before this Court) posted, exchanged and re-posted certain objectionable material by way of 'Whatsapp' messages, e-mails and postal letters. It is submitted that this material is circulated and the material is an obscene material, resulting in her defamation as well as the religious hates. 4 APL823.16+1.odt 5] We first deal with APL No.823/2016 of applicant Bharat Bhushan Chouguley. Mr. R. B. Choguley, learned counsel appearing for this applicant submitted that the alleged material in the form of Whatsapp messages, e-mails and the letters are said to be received by the complainant in the year 2013. He firstly submitted that the applicant is a professional, working as a Chartered Accountant and is a member of Institute of Chartered Accountants of India. The applicant is having very good academic career at his credit. He submitted that the applicant himself is a follower of Christen religion and was an elected secretary of the body of christens namely 'Nagpur Diocese'. He submitted that the applicant has served the said body as a Secretary for a period of three years and he himself is a very conscious of the welfare of students taking education in the school and Saint Ursula's Girls High School, Nagpur is one of the schools being managed by the body namely 'Nagpur Diocese'. 6] The learned counsel then submitted that the alleged communications by way of 'Whatsapp' messages, e-mails and postal letters, are of the year 2013, whereas the report came to be lodged as belatedly as in year 2016 i.e. after three years and no explanation is 5 APL823.16+1.odt coming forward in the report for the said delay. The submission of the learned counsel is the report was lodged against the applicant only to malign his image. The learned counsel then submitted that the complainant Smt. Rachana is not the member of the 'Whatsapp' group and it is specifically stated in the report that one Prashant Satralkar (applicant in APL 209/2017) has formed a 'Whatsapp' group and the applicant, other accused Samson Manwatkar and other persons are the members of this group. It is further stated that there was exchange of some objectionable material. He submitted that in the report, the complainant has made false allegation against the applicant that the applicant was insisting upon the tribal girls to offer prayers in the Church and even if the girls were not ready to offer the prayer, they were asked to offer prayer forcibly. It is also alleged that there was mischief in the administration of the school such as theft committed of paddy, which was made available in the scheme known as 'Mid Day Meal'. The learned counsel then submitted that insofar as the material referred to in the report namely e-mails is concerned, it is the specific statement of the complainant that Prashant Satralkar had forwarded those e-mails and also stated that it was Shri Satralkar, who circulated the 6 APL823.16+1.odt objectionable material against the complainant as well as the religious hates. 7] The learned counsel, by inviting our attention to the 'Whatsapp' messages referred to in the report submitted that even if these messages are taken on its face value, they are neither objectionable nor they relate to any such act of causing embarassment to the complainant. He submitted that these messages only show that the applicant is having concern about the goodwill of the trust and welfare of the children taking education in the institute being run by the trust. He then submitted that one of the messages show that the intention of the applicant was clearly bona fide and he wanted that the institute should not be blamed for corruption in the institute. The learned counsel then submitted that registration of offence against the applicant either for commission of offence under Indian Penal Code or under the Information Technology Act, is unsustainable as there is absolutely no material on record to attract the offences punishable under the Indian Penal Code and insofar as offence under Section 66A of the I.T. Act registered against the applicant is concern, it is an act of sheer 7 APL823.16+1.odt negligence on the part of respondent authorities. The learned counsel for the applicant placed heavy reliance on the judgment of the Hon'ble Apex Court reported in AIR 2015 SC 1523 in the case of Shreya Singhal .vs. Union of India. He submitted that the Apex Court while dealing with the provisions of Sections 66A, 69 and 79 of the I.T. Act, 2000 along with constitutional rights, more particularly, Article 19(1)(a), in its detailed judgment held that Section 66A is wholly unconstitutional and void. 8] Insofar as offence punishable under Section 295(a) of the Indian Penal Code is concerned, the learned counsel for the applicant placed heavy reliance on the judgment of the Apex Court in the case of Mahendra Singh Dhoni .vs. Yerraguntla Shyamsundar and another in Transfer Petition (Criminal) No. 23/2016. It was the further submission of the learned counsel for the applicant that there were certain irregularities in the administration of the school and with a bona fide intention that there must be a check to mal- administration, the applicant made complaint to the school authorities and the report lodged by the complainant is a counter blast to the complaint made by the applicant. To submit that 8 APL823.16+1.odt lodgment of the report with mala fide intention and the proceedings on the basis of the report and vague material, is an abuse of process of law and as such, the report lodged against the applicant is required to be quashed, the learned counsel for the applicant further placed reliance on the judgment of the Apex Court in the case of Madhavrao Jiwajirao Scindia and others .vs. Sambhajirao Chandrojirao Angre and others, reported in AIR 1988 SC 709 ; and State of Haryana and others .vs. Ch.Bhajan Lal and others reported in AIR 1992 SC 604. 9] Mrs. Jachak, the learned Additional Public Prosecutor appearing for the respondent authorities and Mr. Dable, the learned counsel appearing for the non-applicant/complainant vehemently opposed the application. 10] The learned Additional Public Prosecutor submitted that there are serious allegations against the applicant and the material is in the form of 'Whatsapp' messages. She further submitted that the said material is lowering down the reputation of the non-applicant complainant and the communications hurt the religious feelings and 9 APL823.16+1.odt therefore, the report was lodged against the accused persons, including the applicant. It is stated in the report that the messages are circulated in a 'Whatsapp' group and in the group, there are certain lady members. The learned APP then submitted that certain letters were handed over to one Dolly Agrawal and some other acquaintances with the complainant and in these letters, derogatory and objectionable material was written against the complainant. The learned APP and the learned counsel appearing for the complainant submitted that as the investigation is at the initial stage, it would be necessary to collect the other material to unearth the truth. The learned APP submitted that the applicant is not cooperating the investigating agency and as such, the investigating agency is unable to proceed further in the investigation. Thus, the learned APP as well as the learned for the complainant submitted that the application be dismissed. 11] On the backdrop of rival submissions of the learned counsel for the parties referred to above, we have gone through the material placed on record so also the material presented for our perusal by the learned APP. 10 APL823.16+1.odt 12] It reveals from a perusal of the report that a 'Whatsapp' group is formed by another applicant Prashant Satralkar and applicant Bharat Chouguley is one of the members of the group. On the backdrop of the allegations in the report and in view of the submissions of the learned counsel for the applicant, when we put a specific query to the learned APP about the material against the applicant, she submitted that the material is in the form of 'Whatsapp' messages. 13] The undisputed material against the applicant is in the form of 'Whatsapp' messages. We have gone through all these messages. The first message deals with an appreciation of former Judge i.e. Justice Pardiwala. The second message reads that - "let's remove corruption in Nagpur Diocese by recovering Rs.15,00,000.00 from St. Ursula's School, due from July, 2015". 14] Now, the first message clearly shows that it is only an appreciation of a former Judge i.e. Justice Pardiwala and had no concern with the complainant or the trust - Nagpur Diocese. The second message shows that the applicant is asking for removal of corruption and if the intention is of clean image and trust, then this 11 APL823.16+1.odt message would not call for any action for the alleged offences. Insofar as third message is concerned, it was the submission of the learned APP and the learned counsel for the non-applicant/ complainant that this message refers to an advertisement of a product namely 'Stay-on' capsules and oil. It was the submission of the learned APP and the learned counsel for the complainant that reference to the said product and contents of the message are derogatory in nature and they lowered down the image of the complainant. Perusal of the message reveals that this message is a response to the message received wherein there was a reference to the advertisement of the product. It is not the message generated by the applicant. Then by reading the other messages, we find that there is a reference to certain mischief played while distributing food-grains to the students under the government scheme. The learned counsel for the applicant submitted that the applicant had made certain complaints to the school authorities in respect of the misdeeds in the school. The applicant being a vigilant citizen if raises grievance against some misdeeds in the administration of the school, it cannot be said that the applicant had mala fide intention to lower down the image of the complainant. 12 APL823.16+1.odt 15] The learned counsel for the applicant was justified in placing heavy reliance on the judgment of the Hon'ble Apex Court in the case of Shreya Singhal .vs. Union of India (supra). It would be useful to refer to the relevant observations of the Apex Court, which read thus - "95. It has been held by us that Section 66A purports to authorize the imposition of restrictions on the fundamental right contained in Article 19(1)(a) in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action. We have held following K.A. Abbas' case (Supra) that the possibility of Section 66A being applied for purposes not sanctioned by the Constitution cannot be ruled out. It must, therefore, be held to be wholly unconstitutional and void. Romesh Thappar's Case was distinguished in R.M.D. Chamarbaugwalla v. The Union of India, [MANU/SC/ 0020/ 1957 : [1957] S.C.R. 930 in the context of a right under Article 19(1)(g) as follows: "20. In Romesh Thappar v. State of Madras [MANU/SC /0006/1950 : (1950) SCR 594] , the question was as to the validity of Section 9(1-A) of the Madras Maintenance of Public Order Act, 23 of 1949. That section authorised the Provincial Government to prohibit the entry and circulation within the State of a newspaper "for the purpose of securing the public safety or the maintenance of public order." Subsequent to the enactment of this statute, the Constitution came into force, and the validity of the impugned provision depended on whether it was protected by Article 19(2), which saved "existing law insofar as it relates to any matter which undermines the security of or tends to 13 APL823.16+1.odt overthrow the State." It was held by this Court that as the purposes mentioned in Section 9(1-A) of the Madras Act were wider in amplitude than those specified in Article 19(2), and as it was not possible to split up Section 9(1-A) into what was within and what was without the protection of Article 19(2), the provision must fail in its entirety. That is really a decision that the impugned provision was on its own contents inseverable. It is not an authority for the position that even when a provision is severable, it must be struck down on the ground that the principle of severability is inadmissible when the invalidity of a statute arises by reason of its contravening constitutional prohibitions. It should be mentioned that the decision in Romesh Thappar v. State of Madras [MANU/SC /0006/1950 : (1950) SCR 594] was referred to in State of Bombay v. F.N. Balsara [MANU/SC/0009/1951 : (1951) SCR 682] and State of Bombay v. United Motors (India) Ltd. [ MANU/SC/ 0095/1953 : (1953) SCR 1069 at 1098-99] and distinguished." 98. We have already held that Section 66A creates an offence which is vague and overbroad, and, therefore, unconstitutional under Article 19(1)(a) and not saved by Article 19(2). We have also held that the wider range of circulation over the internet cannot restrict the content of the right under Article 19(1)(a) nor can it justify its denial. However, when we come to discrimination under Article 14, we are unable to agree with counsel for the petitioners that there is no intelligible differentia between the medium of print, broadcast and real live speech as opposed to speech on the internet. The intelligible differentia is clear - the internet gives any individual a platform which requires very little or no payment through 14 APL823.16+1.odt which to air his views. The learned Additional Solicitor General has correctly said that something posted on a site or website travels like lightning and can reach millions of persons all over the world. If the petitioners were right, this Article 14 argument would apply equally to all other offences created by the Information Technology Act which are not the subject matter of challenge in these petitions. We make it clear that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can certainly be created by legislation. We find, therefore, that the challenge on the ground of Article 14 must fail. Procedural Unreasonableness 99. One other argument must now be considered. According to the petitioners, Section 66A also suffers from the vice of procedural unreasonableness. In that, if, for example, criminal defamation is alleged, the safeguards available under Section 199 Cr.P.C. would not be available for a like offence committed under Section 66A. Such safeguards are that no court shall take cognizance of such an offence except upon a complaint made by some person aggrieved by the offence and that such complaint will have to be made within six months from the date on which the offence is alleged to have been committed. Further, safeguards that are to be found in Sections 95 and 96 of the Cr.P.C. are also absent when it comes to Section 66A. For example, where any newspaper book or document wherever printed appears to contain matter which is obscene, hurts the religious feelings of some community, is seditious in nature, causes enmity or hatred to a certain section of the public, or is against national integration, such book, newspaper or document may be seized but under Section 96 any person having any interest in such 15 APL823.16+1.odt newspaper, book or document may within two months from the date of a publication seizing such documents, books or newspapers apply to the High Court to set aside such declaration. Such matter is to be heard by a Bench consisting of at least three Judges or in High Courts which consist of less than three Judges, such special Bench as may be composed of all the Judges of that High Court. 119. In conclusion, we may summarise what has been held by us above: (a) Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2). (b) Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid. (c) Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the Information Technology "Intermediary Guidelines" Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment. (d) Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2)." 16] The learned counsel for the applicant was also justified in submitting that the material falls too short to call for any action as 16 APL823.16+1.odt alleged in the report for the offences punishable under Sections 354(a)(4) and 295(a) of the Indian Penal Code. It will be useful to refer to the observations of the Hon'ble Apex Court in the case of Mahendra Singh Dhoni .vs. Yerraguntla Shyamsundar and another, in paragraphs 5, 6 and 7, which read thus - 5. The seminal issue that arises for consideration is whether the allegations made in the complaint constitute an offence under Section 295A of the IPC and whether this Court, in the obtaining factual matrix, relegate the trial at some other place or grant him liberty to file an application under Section 482 CrPC for quashing. At this juncture, we may refer to Section 295A of the IPC which reads as follows:- 295A. Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious belief :- Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of 273 [citizens of India], 274 [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 4[three years], or with fine, or with both." 6. Be it noted, the constitutional validity of Section 295A was assailed before this Court in Ramji Lal Modi v. State of U.P.,[AIR 1957 SC 620] which was eventually decided by a Constitution Bench. The Constitution Bench, adverting to the multiple aspects and various facets of Section 295A IPC held as follows :- 17 APL823.16+1.odt "8. It is pointed out that s. 295A has been included in chapter XV of the Indian Penal Code which deals with offences against the public tranquility and from this circumstance it is faintly sought to be urged, therefore, that offences relating to religion have no bearing on the maintenance of public order, or tranquillity and, consequently, a law creating an offence relating to religion and imposing restrictions on the right to freedom of speech and expression cannot claim the protection of el. (2) of Art. 19. A reference to Arts. 25 and 26 of the Constitution, which guarantee the right to freedom of religion, will show that the argument is utterly untenable. The right to freedom of religion assured by those Articles is expressly made subject to public order, morality and health. Therefore, it cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order. These two Articles in terms contemplate that restrictions may be imposed on the rights guaranteed by them in the interests of public order. 9. Learned counsel then shifted his ground and formulated his objection in a slightly different way. Insults to the religion or the religious beliefs of a class of citizens of India may, says learned counsel, lead to public disorders in some cases, but in many cases they may not do so and,, therefore, a law which imposes restrictions on the citizens' freedom of speech and expression by simply making insult to religion an offence will cover both varieties of insults, i.e., those which may lead to public disorders as well as those 18 APL823.16+1.odt which may not. The law in so far as it covers the first variety may be said to have been enacted in the interests of public order within the meaning of el. (2) of Art. 19, but in so far as it covers the remaining variety will not fall within that clause. The argument then concludes that so long as the possibility of the law being applied for purposes not sanctioned by the Constitution cannot be ruled out, the entire law should be held to be unconstitutional and void. We are unable, in view of the language used in the impugned section, to accede to this argument. In the first place el. (2) of Art. 19 protects a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression "in the interests of" public order, which is much wider than "for maintenance of" public order. If, therefore, certain activities have a tendency to cause public disorder, a law penalising such activities as an offence cannot but be held to be a law imposing reasonable restriction "in the interests of public order" although in some cases those activities may not actually lead to a breach of public order. In the next place s. 295A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. It only Punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious 19 APL823.16+1.odt intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalises such activities, is well within the protection of cl. (2) of Art. 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Art. 19(1)(a). Having regard to the ingredients of the offence created by the impugned section, there cannot, in our opinion, be any possibility of this law being applied for purposes not sanctioned by the Constitution. In other words, the language employed in the section is not wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the fundamental right guaranteed by Art. 19(1)(s) and consequently, the question of severability does not arise and the decisions relied upon by learned counsel for the petitioner have no application to this case." 7. On a perusal of the aforesaid passages, it is clear as crystal that Section 295A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens. It penalise only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the Section. The Constitution Bench has further clarified that the said provision only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate 20 APL823.16+1.odt and malicious intention of outraging the religious feelings of that class. Emphasis has been laid on the calculated tendency of the said aggravated form of insult and also to disrupt the public order to invite the penalty. 17] The learned counsel for the applicant was also justified in placing reliance on the judgment of the Hon'ble Apex Court in the case of Madhavrao Jiwajirao Scindia .vs. Sambhajirao Chandrojirao Angre (supra). It would be useful to refer to the relevant observations of the Apex Court at paragraph 7, which read thus - 7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. 21 APL823.16+1.odt 18] The learned counsel for the applicant was also justified in placing reliance on the judgment of Gujrat High Court in case of Mohd. Rizwan Fazluddin Kadri .vs. State of Gujrat in Spl. Criminal Application No. 1832/2009 in support of his submission that the report against the applicant for commission of offence under Section 67 of the I.T. Act falls too short to make out any case against the applicant. It would be useful to refer to the observations of the Gujrat High Court at paragraphs 4 and 5, which read thus - "4. Contents of the complaint I have already briefly noted. As per the investigating agency, the petitioner had sent the above referred e-mail containing certain offending materials. Question is, even accepting the allegations of the investigating agency as true, whether offence under Section 67 of Information Technology Act can be stated to have been made out. Section 67 of Information Technology Act reads as follows: Publishing of information which is obscene in electronic form.- Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with 22 APL823.16+1.odt imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees. 5. It can thus be seen that Section 67 seeks to punish publication of information through electronic form which is obscene in nature. Though term obscene has been used in the title of the section, in the main body of the section it is provided that any publication or transmission in the electronic form any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied shall be punished with specified penalty." 19] The learned counsel for the applicant was also justified in submitting that none of the material which is in the form of 'Whatsapp' messages is satisfying the test namely it being a lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons so as to call for an action under Section 67 of the I.T. Act. 20] The the learned Additional Public Prosecutor vehemently submitted that in the 'Whatsapp' messages, the applicant re-posted the advertisement of a product 'Stay-on' capsules and oil and the act of the applicant was with an ill intention, as observed by us above, 23 APL823.16+1.odt that message was in response to a message received by the applicant forwarded by somebody else. It is not even the case of the prosecution that said message was created by the applicant. Thus, we find no merit in the submission of the learned Additional Public Prosecutor in her opposition to the application. 21] The learned APP also made an attempt to submit that the applicant is not cooperating with the investigating agency. On a perusal of the material the learned counsel for the applicant submitted that by order dated 19.12.2016, this Court had permitted the investigating agency to continue with the investigation, but directed the agency not to take coercive steps against the applicants. The learned counsel submitted that whenever notice was issued to the applicant to remain present before the Investigating Officer, the applicant remained present before the agency and extended all the cooperation to the investigating agency. The learned counsel for the applicant submitted that the investigating agency was insisting upon the applicant to handover his mobile phone. The learned counsel further submitted that insistence of the agency was in the form of coercive step and as such, the applicant in view of the order of this Court dated 19.12.2016, refused to handover the mobile phone to 24 APL823.16+1.odt the agency and this act of the applicant cannot be termed as non- cooperation by the applicant to the investigating agency. We find considerable merit in the submission of the learned counsel. 22] Considering all the above referred aspects, in our opinion, the learned counsel for the applicant - Bharat Bhushan Vipin Chouguley has made out a case for allowing the application. 23] Insofar as APL No.209/2017 of applicant Prashant Satralkar is concerned, Mr. Rohit R. Choubule, the learned counsel for the applicant made an attempt to submit before us that the applicant is similarly situated with the other applicant Bharat Chougule, whose application this Court is inclined to allow and as such the application of applicant Prashant may also be allowed. We are unable to accept the submission of the learned counsel for the reason that in the report, it is specifically stated that applicant Prashant is the person, who has formed a 'Whatsapp' group, so also there is a reference to certain e-mails forwarded by the applicant. 24] Insofar as applicant Bharat Chouguley is concerned, the only material against the applicant is in the form of 'Whatsapp' 25 APL823.16+1.odt messages and he is only a member of the 'Whatsapp' group, whereas present applicant Prashant Satralkar is the person, who has formed the group. Insofar as applicant Prashant is concerned, apart from 'Whatsapp' messages, there is a reference to e-mails forwarded by this applicant. These mails are presented before us by the learned APP for our perusal. These e-mails are in detail and they are referring to the religious sentiments. On a perusal of these e-mails, we find that there is a specific reference of the complainant. It may not be necessary for us to refer to those e-mails in detail, but to show the material in the form of e-mails referring personally the complainant and levelling allegations against her, we may refer to part of one e- mail and the same reads as under - "Hamare samaj me ek chawal choir principal hai....she sale ration of little school children and enjoys her personal life... like... Nayee-nayee gadi kharidna....Air travel karana...every week...And... Sarkari logon ko khushi karna....She do all stuff except teaching...etc." A bare perusal of the part of e-mail referred to above shows that the statement made therein is derogatory in nature and levelling personal allegations against the complainant. The material submitted for our perusal show that these mails are forwarded by the 26 APL823.16+1.odt applicant to the complainant. The period of exchange of these e-mails ranges from 06.2.2013 to 17.7.2014. Then, there is a reference to certain letters, under title "Paramjyoti ki Raslila". These letters are clearly derogatory in nature and maligning the image of the complainant and also bringing to disrepute the institute. Considering these factual aspects, we are of the opinion that the case of applicant Prashant differs from the case of applicant Bharat. Insofar as applicant Prashant is concerned, we find that the material against this applicant is prima facie sufficient enough to call for an action of registration of offence and the investigating agency is required to conduct thorough investigation in the matter. 25] As we have observed above while dealing with the application of applicant Bharat that the Apex Court by its judgment is pleased to truck down Section 66A of the I.T. Act, the offence under Section 66A against the applicant would not stand, but for the other offencess, the investigating agency is required to conduct investigation against the applicant on the backdrop of the specific material on record. In the result, APL No. 209/2017 deserves to be partly allowed. 27 APL823.16+1.odt 26] In the result, APL No.823/2016 of Bharat Bhushan Chouguley is allowed in terms of prayer clause (ii). APL No.209/2017 is partly allowed. The first information report registered against applicant Prashant at Police Station, Sadar, Nagpur vide Crime No. 270/2016 is quashed only in respect of offence under Section 66A of the Information Technology Act, 2000. The respondent authorities to take necessary steps and continue with the criminal proceedings insofar as other offences against applicant Prashant Satralkar is concerned, namely offences punishable under Sections 354(a)(4), 295(a) of the Indian Penal Code and under Section 67 of the Information Technology Act, 2000. The criminal applications are disposed of accordingly. JUDGE JUDGE Diwale


THE HIGH COURT OF MADHYA PRADESH 1 WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others Gwalior, Dated :21/01/2021 Shri Vibhor Kumar Sahu, counsel for the petitioner. Shri Abhishek Singh Bhadoriya, Panel Lawyer for the respondents/ State. This petition under Section 226 of the Constitution of India has been filed against the order dated 04/05/2020 passed by the Director, Public Education, MP, Bhopal, by which the appeal filed by the petitioner against the order of dismissal issued by the Joint Director, Public Education, Division Gwalior on 23/01/2020, has been dismissed. The necessary facts for disposal of present petition in short are that the petitioner was working as Upper Division Clerk in Government Girls Higher Secondary School, Gohad, District Bhind. He was convicted by judgment dated 17/06/2019 passed by JMFC, Gwalior in Criminal Case No.166/2016 for offene under Sections 341, 323/34 of IPC and was sentenced to undergo the rigorous imprisonment of three months and a fine of Rs.500/-. Criminal Appeal filed by the petitioner was dismissed by the Appellate Court by judgment dated 07/09/2019. Being aggrieved by the dismissal of his appeal, the petitioner has filed a Criminal Revision before this Court and by order dated 16/09/2019, his sentence has been suspended. The petitioner also remained in custody from 07/09/2019 to 16/09/2019. Challenging the impugned orders passed by the authorities, it is submitted by the counsel for the petitioner that even if the petitioner has been convicted for offence under Sections 323, 341, 34 of IPC but the offence committed by the WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others petitioner does not involve moral turpitude, therefore, the respondents have committed a mistake by terminating the services of the petitioner. Considered the submissions made by the counsel for the petitioner. Rule 19 of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (In short Rules 1966), which provides for special procedure in certain cases, to which reliance has been placed by the appellants does not appear to be applicable in the instant case. The said Rule reads thus: "19. Special procedure in certain cases.--Notwithstanding anything contained in Rule 14 to Rule 18-- (i) where any penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge, or (ii) where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in these Rules, or (iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in these Rules, the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit: Provided that the Commission shall be consulted where such consultation is necessary, before any orders are made in any case under this Rule." From plain reading of Rule 19(i) of Rules 1966, it is clear that the departmental enquiry can be dispensed with in the case of the conduct of an employee which has led to his conviction on a criminal charge. However, it would be too harsh to hold that the employer is not entitled to consider the circumstances of the criminal case, and in spite of the nature of the offence, the employer has to issue an order of dismissal. WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others The Supreme Court in the case of The State Bank of India Vs. P. Soupramaniane by judgment dated 26-4-2019 passed in C.A. NO. 7011 of 2019 has held as under :- ''9. There can be no manner of doubt about certain offences which can straightaway be termed as involving moral turpitude e.g. offences under the Prevention of Corruption of Act,NDPS Act, etc. The question that arises for our consideration in this case is whether an offence involving bodily injury can be categorized as a crime involving moral turpitude. In this case, we are concerned with an assault. It is very difficult to state that every assault is not an offence involving moral turpitude. A simple assault is different from an aggravated assault. All cases of assault or simple hurt cannot be categorized as crimes involving moral turpitude. On the other hand, the use of a dangerous weapon which can cause the death of the victim may result in an offence involving moral turpitude. In the instant case, there was no motive for the Respondent to cause the death of the victims. The criminal courts below found that the injuries caused to the victims were simple in nature. On an overall consideration of the facts of this case, we are of the opinion that the crime committed by the Respondent does not involve moral turpitude. As the Respondent is not guilty of an offence involving moral turpitude, he is not liable to be discharged from service.'' Thus, it is clear that if an employee has been convicted for an offence involving moral turpitude, then he can be dismissed from his service, but if an employee has been convicted for an offence not involving moral turpitude, then his dismissal is not warranted. Moral Turpitude has been explained by the Supreme Court in the cases of Allahabad Bank Vs. Deepak Kumar Bhola reported in (1997) 4 SCC 1 and Pawan Kumar Vs. State of Haryana reported in (1996) 4 SCC 17. In the case of Pawan Kumar (Supra) it has been held as under :- ''12. "Moral turpitude" is an expression which is used in legal WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. The Government of Haryana while considering the question of rehabilitation of ex-convicts took a policy decision on 2-2-1973 (Annexure E in the Paper-book), accepting the recommendations of the Government of India, that ex-convicts who were convicted for offences involving moral turpitude should not however be taken in government service. A list of offences which were considered involving moral turpitude was prepared for information and guidance in that connection. Significantly Section 294 IPC is not found enlisted in the list of offences constituting moral turpitude. Later, on further consideration, the Government of Haryana on 17/26-3-1975 explained the policy decision of 2-2-1973 and decided to modify the earlier decision by streamlining determination of moral turpitude as follows: "... The following terms should ordinarily be applied in judging whether a certain offence involves moral turpitude or not; (1) whether the act leading to a conviction was such as could shock the moral conscience of society in general. (2) whether the motive which led to the act was a base one. (3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society. Decision in each case will, however, depend on the circumstances of the case and the competent authority has to exercise its discretion while taking a decision in accordance with the above-mentioned principles. A list of offences which involve moral turpitude is enclosed for your information and guidance. This list, however, cannot be said to be exhaustive and there might be offences which are not included in it but which in certain situations and circumstances may involve moral turpitude." In order to find out as to whether the petitioner has committed an offence involving moral turpitude or not, it would be necessary for this Court to consider the allegations which were levelled against the petitioner. According to the WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others prosecution case, on 27/04/2016 at about 09:00 am, the complainant Radhakrishna Jatav was wrongfully restrained by the petitioner and two other co-accused persons and he was abused and with an intention to cause hurt to the complainant, he was assaulted by fists and blows as well as by a brick. The allegations of assaulting the complainant by brick was against the co-accused Nihal Singh. On the report lodged by the complainant, Crime No.166/2016 was registered at Police Station Thatipur, District Gwalior and after completing the investigation, the police filed the charge sheet against the applicant and other two co-accused persons. Charges under Section 341, 294, 323/34, 506 (II) of IPC were framed and by judgment dated 17/06/2019 passed by JMFC, Gwalior in Criminal Case No.4271/2016, the petitioner and other two co-accused persons were convicted for offence under Sections 323, 341/34 of IPC, whereas, the petitioner and the co-accused persons were acquitted for the charges under Section 294, 506 (II) of IPC. If the allegations which were made against the petitioner are considered, then it is clear that causing bodily hurt would not involve moral turpitude. The allegations of assaulting the complainant by a brick is against co-accused Nihal Singh and the only allegations against the petitioner were that he along with the co-accused persons, had wrongfully restrained the complainant and assaulted him by fists and blows. By no stretch of imagination, the allegation against the petitioner can be considered to be an offence involving moral turpitude. In the light of the judgment passed by the Supreme Court in the case of WP 8154 of 2020 Jagdish Singh Jatav vs. State of MP and Others P. Soupramaniane (supra), this Court is of the considered opinion that the authorities failed to consider that the allegation levelled against the petitioner does not involve moral turpitude and merely because the petitioner has been convicted for offence under Sections 323, 341/34 of IPC, it is not sufficient to dismiss him from service. Accordingly, the order dated 04/05/2020 passed by the Director, Public Education, MP, Bhopal and the order 23/01/2020 passed by the Joint Director, Public Education, Division Gwalior are hereby set aside. Accordingly, the respondents are directed to reinstate the petitioner in service forthwith. However, the petitioner shall not be entitled for back-wages from the date of his dismissal till today. With aforesaid observations, this petition succeeds and is hereby allowed. (G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK VALSALA 2021.01.25 15:04:14 +05'30' VASUDEVAN 2018.10.26 15:14:29 -07'00'


IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising out of SLP (Crl.) No.3814 of 2006) Inspector of Police, Tamil Nadu .. Appellant Versus Balaprasanna ..Respondent JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is to the order of a Division Bench of Madras High Court allowing the appeal filed by the respondent (hereinafter referred to as the `accused'). The accused was convicted for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the `IPC') and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- with default stipulation by Principal District Judge, Madurai. He was also convicted for offences punishable under Section 392 read with Section 397 IPC and sentence to undergo rigorous imprisonment for 10 years and to pay a fine. 3. Background facts in a nutshell are as follows: The deceased is one Mayurani, a Sri Lankan student, who was residing in the first floor of the house belonging to one Solsimalai (P.W.1). The Accused is also a Sri Lankan student studying in a different college, but staying in the second floor of the same premises. The occurrence allegedly took place in the afternoon of 22.4.2003. The First Information Report was lodged by P.W.1 on 24-4-2003 at about 9.30 A.M. It was indicated in the First Information Report that on 24.4.2003 at 9.00 A.M., while the informant had gone to perform pooja in the first floor of the house, he got foul smell in the last room of the first floor and found blood seeping through the front door. On opening the window he noticed that Mayurani was lying in a pool of blood with her face covered with a bag. On the basis of the aforesaid F.I.R., investigation was taken up initially by P.W.40. Subsequently on the basis of the order of the High Court, such investigation was completed by P.W.42. The accused is stated to have been arrested on suspicion on 26.4.2003. On the basis of the statement of the accused, prosecution discovered many materials including a knife and a log allegedly used for killing. Initially, P.W.40 suspected the role of P.W.1, his wife P.W.2, P.W.3, from whose house certain incriminating material were recovered allegedly on the basis of statement of the accused as well as P.W.4, who was working as a cleaner in the vehicle of P.W.1. Subsequently, however, P.W.42, who took over investigation from P.W.40 filed charge-sheet only against the present appellant on the footing that P.Ws. 1 to 4 had no role to play in the crime. 4. The prosecution relied upon only circumstantial evidence, namely, confessional statements of the accused leading to recovery of various incriminating materials. Ex.P-6 is the statement leading to recovery of Travel bags (M.Os. 2 & 3), knife (.M.0.5), wooden log (M.0.28), rubber gloves (M.0.29 series) cotton rope with human hair (MN.O.30 series), two sponges soaked with blood (M.0.31 series), bloodstained blue clolour jean pant (M.0.32), bloodstained white banian (M.0.33), colour banian (M.0.34), bloodstained grey colour pant (M.0.35), bloodstained pillow (M.0.36), plastic bucket (M.0.37) from the house of P.W.3. Ex-P-8 is the statement leading to recovery of computer and its accessories (M.Os. 6 to 17) from the house of P.W.15, a classmate of the accused. Ex.P-10 is the statement relating to jewelleries, ultimately leading to recovery of gold ingots (M.O.18 series) from the house of P.W.19 on the basis of other connecting statements of P.W.17 and P.W.18. These three statements, Exs. P-6, P-8 and P-10 dated 26-4-2003, were made before P.W.40 in the presence of P.W.22 and C.W.1. The other confessional statement Ex.P-12 dated 22-9-2003 made before P.W.42 and Subbiah and P.W.24, led to recovery of "M" dollar (M.0.38) and key chain with key chain in (M.0.39) from the toilet in the room of the accused. The prosecution has also relied upon the alleged motive to the effect that the accused urgently wanted money with a view to increase his marks in Mathematics and, therefore, the accused had stolen articles belonging to the deceased. 5. The trial court found the respondent guilty and recorded conviction and imposed sentence as aforestated. The trial court found that the prosecution version rested on circumstantial evidence. The following circumstances were highlighted to find the accused guilty. (a) The death is homicidal; (b) The accused was in need of money to chase mathematics paper and for the aforesaid purpose he has killed the deceased to take away the valuable articles like computer and gold ornaments to sell such articles in the market. (c) At the time of occurrence, only the accused, deceased and PW 9 were available in the premises and there was no other person. (d) Statement of the accused leading to recovery of incriminating materials such as knife, rope, clothes, wooden log and other valuable articles such as computer, gold ornaments, "M" Dollar and the key chain with key belonging to the deceased. 6. The High Court found that the circumstances highlighted were not sufficient to fasten the guilt on the accused, and directed acquittal. Learned counsel for the appellant submitted that the High Court failed to notice that the circumstances highlighted clearly establish the chain of circumstances which established the prosecution version and the High Court was not justified in directing acquittal. 7. Learned counsel for the respondent on the other hand supported the judgment of the High Court. 8. The conviction based on circumstantial evidence has been highlighted by this Court in various orders of this Court. 9. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan AIR (1977 SC 1063); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. 10. We may also make a reference to a decision of this Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus: "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....". 11. In Padala Veera Reddy v. State of A.P. and Ors. (AIR 1990 SC 79), it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 12. In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl.LJ 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 13. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted". 14. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch- stone of law relating to circumstantial evidence laid down by the this Court as far back as in 1952. 15. In Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), wherein it was observed thus: "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far 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 human probability the act must have been done by the accused." 16. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622). Therein, while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (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 compete 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. 17. These aspects were highlighted in State of Rajasthan v. Rajaram (2003(8) SCC 180), State of Haryana v. Jagbir Singh & Anr. (2003(11) SCC 261). 18. The main circumstances relied upon by the prosecution relates to the statements of the accused leading to discovery of materials facts, admissible under Section 27 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). 19. Law is well settled that the prosecution while relying upon the confessional statement leading to discovery of articles under Section 27 of the Evidence Act, has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. The scope and ambit of Section 27 of the Evidence Act had been stated and restated in several decisions of this Court. However, in almost all such decisions reference is made to the observation of the Privy Council in Pulukuri Kotayya v. Emperor (AIR 1947 PC 67). It is worthwhile to extract such quoted observation: "It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history, of the object produced is not related to his discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of the knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which stabbed A', these words are inadmissible since they do not related to the discovery of the knife in the house of the informant (p.77)". 20. At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kottaya's case (supra). 21. The various requirements of the section can be summed up as follows: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible. 22. As observed in Pulukuri Kottaya's case (supra) it can seldom happen that information leading to the discovery of a fact forms the foundation of the prosecution case. It is one link in the chain of proof and the other links must be forged in a manner allowed by law. To similar effect was the view expressed in K. Chinnaswamy Reddy v. State of A.P. (AIR 1962 SC 1788). 23. The above position was highlighted in Anter Singh v. State of Rajasthan (AIR 2004 SC 2665). 24. In Rammi alias Rameshwar v. State of Madhya Pradesh (AIR 1999 SC 3544) the scope and ambit of Section 27 of the Evidence Act was analysed in great detail and it was concluded in para 12 as follows: "12. True, such information is admissible in evidence under Section 27 of the Evidence Act, but admissibility alone would not render the evidence, pertaining to the above information, reliable. While testing the reliability of such evidence the court has to see whether it was voluntarily stated by the accused." 25. Significantly, the prosecution has relied upon the evidence of PW 40 who was investigating initially. His evidence has to be considered in the background of what has been stated by PW 22 and CW 1. It has been accepted by the prosecution that great efforts were made by PW 40 to falsely implicate to PWs 1 to 4 and for that purpose a departmental proceeding was initiated. Even according to the statement of the subsequent investigating officer (PW 42), several blank papers with the signature of PW 22 and CW 1 had been by PW 40 and such documents had been used to create false records to implicate PWs 1 to 4. It is to be noted that PW 2 himself was one of the suspected person at the initial stage of investigation. 26. That apart, materials on record such as the statement of P.W.22 recorded under Section 164 of the Code of Criminal Procedure, 1973 (in short `Code') and the statement of C.W.1, raise a reasonable doubt relating to voluntariness of the alleged confession. P.W.22, who is a close relation of the deceased (cousin) has stated that two days after the occurrence after the information that Bala Prasanna was roaming near LIC Colony, Anna Nagar Police brought him to the Police Station and Bala Prasanna was arrested at 5.00 P.M. and was taken to the police station and a witness was present there. It is further stated that at the time of enquiry, the accused was beaten up by the police and they have seized a gold ring and Rs.5000/- cash from him. If this is the statement of P.W.22 recorded under Section 164 of the Code a witness in whose presence the confessional statement leading to discovery of articles from the house of Hajeeali, P.W.3 had been made, it raises serious doubt regarding the voluntariness of the statement. In this context, it is also note worthy to indicate that C.W.1 in his evidence has stated that the accused was in police station on 24-4-2003 itself. Similar statement is made by P.W.4. That apart, C.W.1 has stated that no statement has been made in his presence. The prosecution version to the effect that even some signatures on blank papers had been taken from P.W.22 and C.W.1 thus assumes great importance. 27. The alleged statement made by the accused led to discovery of knife, bloodstained clothes, rope, etc. Unfortunately, for the prosecution there is no evidence to show that in fact the wearing apparels containing bloodstains belonged to the accused, save and except the alleged confessional statement. No witness has spoken that those clothes were worn by the accused at any time far less at or about the time of occurrence. It is also to be kept in view that those articles were recovered from the house of P.W.3 and at the initial stage of investigation, P.W.3 himself was one of the suspected person and he was arrested. Therefore, the statement of P.W.3 and his mother that those articles were brought by the accused and left in the upstairs room is to be considered with a pinch of salt. Moreover, there is nothing to indicate that in fact the bloodstained clothes and rope had tallied with the blood grouping of the deceased. The knife did not contain any bloodstain. Therefore, the aspect relating to recovery of articles from the house of P.W.3 and his mother cannot be considered as a link to complete the chain of circumstantial evidence. 28. The next recovery relates to recovery of computer and accessories. Apart from the fact that there is niggling doubt about the so called confession, in view of statement under Section 164 of the Code of P.W.22 and the statement of C.W.1, a further doubt is raised regarding such aspect in view of evidence of C.W.1 to the effect that he had seen such computer in the room of the deceased when they had gone to the room after the offence was reported. The fact that C.W.1 is a close relation of the deceased adds weight to his evidence rather than taking it away. Even accepting that the computer had been given to P.W.15 by the accused, such circumstance by itself does not unerringly points towards the guilt of the accused either in respect of offence of murder or even robbery. It is quite possible that such articles might have been borrowed by the accused from the deceased and not necessarily stolen by the accused from the deceased after killing her. The fact that P.W.9 had not initially stated anything before P.W.40 about the accused coming down with computer at 3.30 P.M. and stated so for the first time when she was re-examined after 5 months cannot be lost sight of. As a matter of fact, P.W.9 who was examined on the very date when police started investigation did not inform the police that she had seen the accused coming down from upstairs or that the accused had threatened her. Her statement to the following: "I did not tell anyone that Balaprasanna took away the computer and threatened me. I did not tell this even to the Inspector of Police after going to the police station. I do not tell this even to P.W.1...". 29. The next recovery relates to the ingots. For the aforesaid aspect, the evidence of P.Ws. 17, 18 and 19 is relevant. Since the golden jewellery had been molten and were recovered in the shape of ingots, it would be very hazardous to come to the conclusion that in fact the golden jewellery belonged to the deceased. If the accused had killed the deceased and stolen those golden jewellery, there is no reason as to why he had also not taken ear rings from the deceased. The fact that ear rings were on the dead body is admitted by the prosecution. 30. The prosecution has strongly relied upon the fact that "M" Dollar belonging to the deceased and a chain with key of the room of the deceased were discovered from inside the toilet in the room which was previously occupied by the accused. For the aforesaid purpose, they have relied upon the evidence of P.W.42 and the seizure witness P.W.24. The accused had allegedly made earlier confessional statement before P.W.40 on 26-4-2003 leading to discovery of several articles. The subsequent statement spoken to by P.W.42, the subsequent Investigating Officer, is alleged to have been made only in September, 2003, after about five months. So far as the first confession statement made before P.W.40 is concerned, admittedly the accused was under physical custody, at that time, whereas at the time of last confession stated to have been made before P.W.42, the accused was on bail and he had been summoned by P.W.42 for further examination and, therefore, technically in custody. If the accused had not made such a statement at such first instance, when he had confessed about other articles, it is not understood as to how after 5 months when he was on bail he would make such a statement. Such alleged confession made belatedly thus creates doubt regarding its authenticity or voluntariness. In this context, it is to be noted that C.W. 1 states that "M" Dollar was taken from him by P.W.42 for the purpose of facilitating investigation. Keeping in view the fact that C.W.1 is a close relation of the deceased and obviously interested in punishing the real culprit, such a statement coming from C.W.1 cannot be slightly brushed aside. 31. The fact that there had been a statement allegedly made by P.W.1 leading to recovery of a parallel key from the dash board of the car of P.W.1, cannot be lost sight of. It is of course true that the prosecution has tried to exonerate P.W.1 by adducing evidence through P.Ws. 36 and 39 to the effect that immediately after recovery of the dead body, P.W.40 had taken two such keys, thus contradicting the alleged confession of P.W.1. However, the very suspicious role of P.W.40, who apparently was in possession of at least two keys of the same lock creates suspicion regarding recovery of another key after 5 months. 32. Law is well settled that when the prosecution relies upon circumstantial evidence, all the links in the chain of circumstances must be complete and should be proved through cogent evidence. 33. When the judgment of the High Court is analysed in the background of what has been stated by this Court as regards circumstantial evidence, the inevitable conclusion is that the impugned judgment of the High Court does not suffer from any infirmity to warrant interference. The appeal is dismissed. ................................J. (Dr. ARIJIT PASAYAT) ................................J. (P. SATHASIVAM) New Delhi, July 21, 2008


1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO(S). 251-252 of 2021 (Arising out of S.L.P.(C) No.14266-14267 of 2019) ASSAM INDUSTRIAL DEVELOPMENT CORPORATION LTD. …APPELLANT(S) VERSUS GILLAPUKRI TEA COMPANY LIMITED & ORS. ETC. …RESPONDENT(S) JUDGMENT S. ABDUL NAZEER, J. 1. Leave granted. 2. Assam Industrial Development Corporation Limited has filed these appeals challenging the judgment and order in Writ Appeal Nos. 219 & 220 of 2017 dated 14.03.2019 whereby the Division Bench of the High Court of Guwahati has dismissed the said appeals confirming the order of the Learned Single Judge in Review Petition Nos. 79 & 80 of 2016. 3. Brief facts necessary for disposal of these appeals are as under. 4. In order to set up a plastic park, the Government of Assam decided to acquire a portion of the land belonging to the first respondent situated at Gillapukri Tea Estate, Village Gillapukri, Tinsukia, Assam. The Government of Assam, in exercise of the power vested in it under Section 4 of the Land Acquisition Act, 1894 (for short ‘L.A. Act’) issued a notification dated 04.08.2008, which was published in the Assam Gazette on 08.08.2008, expressing its intention to acquire 1,166 biggas, 1 katha, 14 lessas of land of the aforesaid Gillapukri Tea Estate. The proceedings being L.A Case No. 1 of 2008 were also initiated for the purpose of acquisition before the District Collector, Tinsukia and, for that purpose, declaration dated 17.06.2009 in terms of Section 6(1) of the L.A. Act was published in the Assam Gazette. The appellant was appointed as the nodal agency to deal with the acquisition proceedings vide appointment letter dated 24.06.2009. 5. The Deputy Commissioner and Collector, District Tinsukia, addressed a letter dated 30.01.2010 to the Principal Secretary to the Government of Assam, Revenue Department to seek approval of the award and the land acquisition estimate which were enclosed therewith in the prescribed Form No. 15 and Form No. 5 respectively. In response, the Commissioner and Secretary to the Government of Assam, Revenue Department, addressed a letter dated 05.03.2010 to the Deputy Commissioner whereby approval, as sought vide the aforesaid letter dated 30.01.2010, was granted. As will be seen in the following paragraphs, the controversy between the parties before us is whether this letter was approval of both the award and the estimate or only the estimate. Thereafter, the owner of the land, i.e. the first respondent herein, addressed a letter dated 05.05.2010 to the Commissioner seeking reference of the matter to the District Judge, Tinsukia, under Section 18 of the L.A. Act for reassessment of the compensation awarded to it. It is contended that other similar applications were also received from different families at different levels. It is further contended that in the letter dated 05.05.2010, the first respondent admitted that it had received a sum of Rs. 4.95 crores on 08.04.2010 by a crossed cheque immediately after the letter for approval dated 05.03.2010 was passed by the Commissioner. It is also contended that vide possession certificate dated 21.05.2010, possession was delivered to the Deputy Commissioner, and thereafter on 11.06.2010, possession of the land was handed over to the appellant by the Deputy Commissioner. 6. The first respondent has not disputed the issuance of the preliminary and final notification. However, it is contended that no award was approved pursuant to the letter dated 05.03.2010. It is the first respondent’s case that vide this letter, only the land acquisition estimate was approved and not the award. This, in the first respondent’s view, led to lapsing of the proceedings and initiation of fresh acquisition proceedings in 2012 which culminated in approval of the award for the first time on 04.01.2014. For this purpose, a fresh notification under Section 4 of the L.A. Act was published on 07.08.2012 and a declaration was also issued on 20.11.2012. Thereafter, the Commissioner issued a notice purportedly under Section 9 of the L.A. Act to the persons interested in the land to submit their objections and claims. On 04.01.2014, a fresh award was passed and the Deputy Secretary, Government of Assam, Revenue Department addressed a letter dated 06.01.2014 to the Deputy Commissioner conveying approval of the said fresh award. The first respondent contends that a comparison of this approval letter dated 06.01.2014 with the approval letter dated 05.03.2010 under the original acquisition proceedings would clearly indicate that under the letter dated 05.03.2010, only the estimate was approved and not the award. Since the award under the fresh proceedings was approved and made after coming into force of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short ‘2013 Act’), the first respondent approached the Deputy Commissioner to seek a fresh award by determining the compensation payable in terms of Section 24(1)(a) of the 2013 Act. 7. The first respondent has denied the claim of the appellant that an award had been approved on 05.03.2010 and has mainly rested its case on the letter dated 21.07.2012 addressed by the Deputy Secretary, Government of Assam, Revenue Department to the Deputy Commissioner wherein the Deputy Secretary admitted to not having drawn the award within two years from the date of publication of the declaration under the original acquisition proceedings. The first respondent has also relied upon the letter dated 06.01.2014 sent by the Deputy Secretary to the Government of Assam which, as per the first respondent, suggests that no award had been approved under the original acquisition proceedings. 8. On the contrary, the State Government has taken a stand that an award was approved by the State Government on 05.03.2010 and that the same had been made within two years of the declaration. It is also contended that pursuant to the award, possession of the land was taken from the first respondent by the acquiring authority and the land was then handed over to the appellant. It was also submitted that the entire compensation had been paid to the first respondent. The State Government contends that the need for an additional award arose only because some of the land owners of the land initially proposed to be acquired were left out in the original award that was approved on 05.03.2010. 9. Appearing for the appellant Shri Jayant Bhushan, learned senior counsel has submitted that the award had been passed in Form No. 15 of the Assam Land Acquisition Manual and was approved by the State on 05.03.2010. Possession of the land was also handed over by the first respondent to the acquiring authority on 21.05.2010 and was thereafter handed over to the appellant on 11.06.2010. Shri Bhushan submitted that the compensation was also received by the first respondent and, in fact, the first respondent had also sought enhancement of the compensation allowed under the said award. It is Shri Bhushan’s submission that once the land stood vested in the State, it could not have been acquired again. Therefore, any issuance of fresh notification under Section 4 and 6 or even preparing of a fresh award by the State Government in respect of the first respondent’s land will be non est or infructuous. He further submits that the letters dated 21.07.2012 and 06.01.2014 relied upon by the High Court could not have had the effect of re-acquiring the land in question since it already stood vested in the State Government. 10. Learned counsel appearing for the State of Assam has supported the stand of the appellant. 11. However, Shri Senthil Jagadeesan, learned counsel for the first respondent submits that the aforesaid two letters would conclusively establish that no approval to an award was granted by the State Government under the original acquisition proceedings. It is his submission that the two aforesaid letters dated 21.07.2012 and 06.01.2014 which were relied upon by the Division Bench of the High Court would clearly establish the same. Therefore, he prays for dismissal of these appeals. 12. We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record. Having regard to the contentions urged, the crucial question for consideration is whether an award in respect of the first respondent’s land was approved by the State Government on 05.03.2010. Needless to say, if the award was not approved on 05.03.2010, but rather on 06.01.2014 as contended by the first respondent, then the 2013 Act will be applicable and the first respondent will be eligible to receive compensation in accordance therewith. 13. To determine whether the award had indeed been approved on 05.03.2010, we first have to examine the letter dated 30.01.2010 through which the State Government’s approval of the award was sought by the Deputy Commissioner. It is uncontested that vide this letter both the award and the land acquisition estimate were sent to the State Government for its approval. It is pertinent to note that the award was in the format of Form No. 15 which is the statutorily prescribed form for a land acquisition award under the Assam Land Acquisition Manual. This is also true of the land acquisition estimate which was as per the prescribed format of Form No. 5. As such, the only further action required of the State Government was to approve the award which was already in the statutorily prescribed form. This is precisely what was done vide the letter dated 05.03.2010 issued by the Deputy Secretary to the Government of Assam, Revenue Department. 14. This letter dated 05.03.2010 was issued in response to the letter dated 30.01.2010, whereunder approval of the award and the land acquisition estimate was sought. While this letter only expressly mentions the land acquisition estimate and not the award, a combined reading of this letter with the preceding letter dated 30.01.2010 and the subsequent conduct of the parties, including the first respondent, make it evident that the award stood approved by this letter of 05.03.2010. It is noteworthy that copies of both the letters of 30.01.2010 and 05.03.2010 were also addressed to the Industries & Commerce Department of the Government of Assam. Vide the initial letter of 30.01.2010, the said Department was requested to arrange balance funds for making payment to the land owners as per the award. In furtherance of this, vide the letter of 05.03.2010, the said Department was directed to place the balance estimated fund at the disposal of the Deputy Commissioner. We find strength in the appellant’s submission that if the award which had been sent for approval alongwith the estimate had not been approved by the said letter dated 05.03.2010, this direction for making funds for payment to landowners available to the Deputy Commissioner would not have been called for. This view is fortified by the subsequent conduct of the parties, as particularly evinced by the below mentioned actions. 15. It is undisputed that the award amount was indeed made available to the Deputy Commissioner and the awarded sum was duly paid to and received by the first respondent. Not only did the first respondent receive compensation pursuant to the award, it in fact sought enhancement of the same vide its reassessment petition dated 05.05.2010 u/s 18 of the L.A. Act addressed to the Deputy Commissioner. It is also not contested that vide possession certificate dated 21.05.2010, the first respondent handed over possession to the Deputy Commissioner and that on 11.06.2010 possession of the land was ultimately handed over to the appellant by the Deputy Commissioner. What clearly emerges from the above is that after the letter dated 05.03.2010, it was the common belief of the State Government, the appellant as well as the first respondent that the award had been approved and that now actions subsequent thereto viz. payment and receipt of compensation, handover of possession, seeking reassessment of the compensation were needed to be undertaken. 16. It is clear from the materials on record that the plastic project for which the subject Land Acquisition was initiated has already been developed on the acquired land including boundary wall, entrance gate, laying of roads, drains and electrical distribution networks, electrical substation, industrial sheds and warehouses. 17. In the above scenario, the arguments of the first respondent are untenable. Once the award has been approved, compensation has been paid thereunder and possession of the land has been handed over to the Government, acquisition proceedings could not have been reopened, including by way of re-notification of the already acquired land under Section 4 of the L.A. Act by the Government. Contrary to the first respondent’s contention, the question of lapsing under Section 24 of the L.A. Act could not have arisen in this case once the award was approved on 05.03.2010. 18. So far as the second set of acquisition proceedings are concerned, without addressing the factual veracity of the State Government’s contention that the second award was meant to be only in respect of landowners not covered by the original award, we are of the opinion that it would not have been possible for the State Government to initiate acquisition proceedings in respect of already acquired land such as that of the first respondent herein. This position has been affirmed by this Court in D. Hanumanth SA & Ors. v. State of Karnataka and Ors.1 in the following terms: “17. Even otherwise, if land already stands acquired by the Government and if the same stands vested in the Government there is no question of acquisition of such a land by issuing a second notification for the Government cannot acquire its own land. The same is by now settled by various decision of this Court in a catena of cases. 18. In State of Orissa v. Brundaban Sharma,2 this Court has held that the Land Acquisition Act does not contemplate or provide for the acquisition of any interest belonging to the Government in the land on acquisition This position was reiterated in 1 (2010) 10 SCC 656. 2 1995 Supp (3) SCC 249. a subsequent decision of this Court in Meher Rusi Dalal v. Union of India3 in paras 15 and 16 of the said judgment, this Court has held that the High Court clearly erred in setting aside the order of the Special Land Acquisition Officer declining a reference since it is settled law that in land acquisition proceedings the Government cannot and does not acquire its own interest. While laying down the aforesaid law, this Court has referred to its earlier decision in Collector of Bombay v. Nusserwanji Rattanji Mistri4” The recent decision of the Constitution Bench of this Court in Indore Development Authority v. Manoharlal and Ors.5 has also affirmed that once possession is taken by the State, the land vests absolutely with the State and the title of the landowner ceases. We find no reason to deviate from this settled position of law and thus are unable to agree with the High Court’s reliance on the letters dated 21.07.2012 and 06.01.2014 to nullify the original award and allow fresh acquisition proceedings in respect of the first respondent’s land which had already been acquired and has been under the possession of the appellant since 11.06.2010. 19. Therefore, for the foregoing reasons, the appeals succeed and are accordingly allowed. The orders impugned herein are 3 (2004) 7 SCC 362. 4 AIR 1955 SC 298 : (1955) 1 SCR 1311. 5 (2020) 8 SCC 129. set aside. Pending applications, if any, shall stand disposed of. The parties shall bear their own costs. …….……………………………J. (S. ABDUL NAZEER) …….……………………………J. (SANJIV KHANNA) New Delhi; January 28, 2021.