Evidentiary Weight when witness dies after examination in chief

Comment : This case is a preposition for “When a witness after his examination in chief dies – and hence could not be cross examined – his evidence does not ipso facto become inadmissible and washed off the record – it still can be considered though of little weight”
Kerala High Court
Food Inspector vs James N.T. And Anr. on 10 November, 1997
Equivalent citations: 1998 (1) ALT Cri 221, 1998 CriLJ 3494
Author: K M Shafi
Bench: K M Shafi

JUDGMENT

K.A. Mohamed Shafi, J.

1. The complainant-Food Inspector has preferred this appeal challenging the judgment of the Chief Judicial Magistrate, Thodupuzha dated 28-2-1994 in C.C. No. 57/ 1989 acquitting the accused.

2. Two accused persons, father and son were prosecuted for the offences punishable under Sections 2 (ia) (a), (f), (m) and 7 (i) read with Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act and Rule 5 appendix B, A. 18.06 of the Prevention of Food Adulteration Rules alleging that at 10.40 a.m. on 13-2-1987 they being the licensee and salesman of the shop conducted in door No. 17/3 of Kumaramangalam Panchayath exhibited for sale insect infested peas dhal unfit for human consumption and as such they committed the offences alleged against them.

3. That complaint preferred by the Food Inspector, Thodupuzha Circle, Idukki district was taken on file by the Court as C.C. 57/89 and proceeded with the trial of the case as in a warrant case instituted otherwise than on a police report and after examining some of the witnesses framed charge against the accused who are the respondents herein. Admittedly the respondents are father and son and while the. father was the licensee of the shop the son was salesman, the lower Court after trial found that the prosecution has not succeeded in establishing that the respondents have committed the offences alleged against them and therefore they were acquitted and set at liberty by the impugned judgment.

4. Even though the then Food Inspector who purchased peas dhal from the respondents for the purpose of sampling, sent the sample for analysis and filed the above complaint after receipt of the analysis report to the effect that the sample was insect infested and unfit for human consumption, was examined as PW1 before the lower Court prior to the framing of the charge against the respondr ts, he was not cross-examined at that stage and his cross-examination was deferred by the counsel for the respondents. But after the framing of charge PW 1 expired and the respondents had no opportunity to cross-examine him. Though the prosecution contended that eveni though PW 1 was not cross-examined, his evidence has to be considered by the trial Court along with the other evidence adduced by the prosecution to establish the guilt of the respondents, the lower Court held that since PW1 was not available for cross-examination by the accused in this case, his evidence cannot be relied upon. After eschewing the evidence of PW 1 the lower Court; found that the other evidence on record is insufficient to prove that the respondents have committed the offences alleged against them.

5. The case of the prosecution is that on 13-2-1987 at about 10.40 a.m. PW1 along with PW2. the Peon in his office after informing his identity purchased 750 gms. of peas dhal exhibited for sale from the shop of the respondents for the purpose of analysis by paying the price and sampled the same in accordance with law and sent for chemical analysis and after analysis PW5 the Public Analyst sent his report Ext. P9 to the effect that the sample did not conform to the standard prescribed for peas dhal under the provisions of the Prevention of Food Adulteration Act and it was insect infested and unfit for human consumption.

6. As already noted PW 1 the Food Inspector died after examination-in-chief and there was no opportunity to cross-examine him. PW2 who is the Peon in the office of PW1 has narrated in detail with regard to the purchase of peas dhal from the shop of the respondents for analysis, sampling etc. by PW1. PW3, the owner of the shop room in which the respondents were conducting the trade has also deposed about the purchase of the article for analysis, sampling etc. by PW 1. PW4 the successor-in-office of PW 1 has deposed in conformity with the evidence of PWs. 1 and 2 and the various documents produced in this case from his office are proved and marked through him. PW5 is the Public Analyst and PW6 is the District Food Inspector who is the local health authority in this case.

7. The Public Prosecutor vehemently argued that the evidence of PW1 along with the other evidence available on record in this case conclusively proved the offence alleged against the respondents and the lower Court is in manifest error in discarding the evidence of PW1 on the sole ground that there was no opportunity to the accused to cross-examine him. He argued that unlike in other cases generally in which the evidence of a witness who was not subjected for cross-examination, cannot be relied upon, in this case even though PW1 was available for cross-examination without subjecting him to cross-examination after his examination-in-chief, it was deferred by the respondents and unfortunately he expired before the respondents could get an opportunity to cross-examine him. Therefore, according to him since the failure of cross-examination of PW1 was due to his untimely demise prior to his cross-examination before the lower Court, his evidence is acceptable as the evidence of any other witnesses and the only question to be considered is regarding the veracity of his evidence.

8. In support of the contention that the evidence of a witness who died before cross-examination is admissible, the learned Public Prosecutor relied upon the decision in Ahmad Ali v. Joti Prasad AIR (31) 1944 All 188 (2): (1944 All LJ 182) wherein a Division Bench of the Allahabad High Court has observed as follows (at page 190 of AIR):

The plaintiffs had a commission issued to one Raj Bahadur Mathur, who went to the place and counted and measured every stump which he could find. They also produced a witness called Wazir Singh who was employed by them and who gave evidence about the number of trees which had been cut down by the defendants. Unfortunately this witness died before he could be cross-examined and it is urged on behalf of the defendants-appellants that his evidence is not admissible. There is certainly no provision in the Evidence Act that the evidence of a witness who has been examined in open Court upon oath shall be excluded because it has not been possible for the other party to cross-examine him the difference between rejecting evidence on the ground that it is legally inadmissible and ignoring it upon the ground that it should not be believed may often be of very little importance in practice but the distinction is important in principle because if the evidence is inadmissible the Court is not entitled to consider it at all whereas if it is admissible the Court must decide on the circumstances of each ease whether any weight should be attached to it. All relevant authority and also the provisions of the Evidence Act would support the proposition that the evidence of a witness in these circumstances is admissible and the Judge who is dealing with it must decide for himself whether he believes the facts stated or does not believe them. I hold therefore that the learned Judge was entitled in this case to take the evidence of Wazir Singh into consideration and that we are not entitled to ignore it although we may, if we choose, think that it is of little value.

9. He also relied upon another decision in Srikishun Jhunjhunwalla v. Emperor AIR (33) 1946 Patna 384 : (47 Cri LJ 614) wherein the Patna High Court has followed the above decision of the Allahabad High Court and held that where a witness dies after examination-in-chief and before cross-examination, his evidence is admissible but the degree of weight to be attached to it depends on the circumstances of the case.

10. The counsel for the respondents submitted that since PW 1 was not available and he could not be subjected to cross-examination, his evidence cannot be looked into for any purpose in this case. The proposition that unless a witness is subjected to cross-examination his evidence cannot be relied upon is well established. In the decision in Shaikh Shurfuraz Mollah v. Shaikh Dhunoo, (1871) 16 Weekly Reporter 257 it was observed as follows :

If a party wishes to give evidence in his own favour, of course it is in his power to come forward like any other witness and subject himself to examination andcross-examination in open Court; but until he has subjected himself to cross-examination, no statement which he may volunteer can be used as any evidence in support of his own case, unless the right, so to use it, has accrued from the deliberate act of his adversary. A party cannot himself determine that his own statement shall be used as evidence in his favour.

11. In the decision in Bhola Ram v. PeariDevi AIR 1962 Patna 168 a Division Bench of the Patna High Court has held that written statement filed by one of the defendants in a suit supporting the plaintiff is of no help to the plaintiff in the absence of his statement on oath on examination in Court.

12. In decision in Passang Lama v. State of Sikkim 1975 Cri LJ 1350 a single Judge of the Sikkim High Court has observed as follows at page 1354 :

Though the accused had wanted to cross-examine PWs.2 and 3 but they were not made available forcross-examination, as summons could not be served on them. Thus a valuable right of the accused as given in Section 256 has been denied to them. The fact that the accused had cross-examined PWs. 2 and 3 before the charge had been framed is no reason to deny the right of cross-examination of the said witnesses after fram-ing the charge. The accused was thus denied the right to cross-examine PW2 and PW3 and their evidence was no legal evidence and could not be relied upon.

13. The general proposition that the evidence of a witness who is not subjected to cross-examination cannot be looked into, cannot be disputed. But the question to be considered in this case is whether the evidence of PW1 who was examined in chief and was not available forcross-examination due to his death in the meanwhile, is admissible in evidence or not. The principles laid down in the decisions relied upon by the counsel for the appellant referred to above clearly establish that the evidence of a witness who could not be subjected to cross-examination due to his death before he could be cross-examined, is admissible in evidence, though the evidentiary value will depend upon the facts and circumstances of the case. Therefore, the lower Court is not at all justified in discarding the evidence of PW1 on the ground that he was not available for cross-examination and therefore, great prejudice will be caused to the respondents if his evidence is accepted.

14. As already noted, apart from PW1, PW2 the Peon in the office of PW1 who accompanied PW 1 at the time of purchase of the article for the purpose of analysis by PW 1 from the respondents, has given evidence corroborating the testimony of PW 1 with regard to the purchase of the article, sampling etc. PW3, who is the owner of the shop room in which the respondents had been conducting trade has also deposed about the purchase of peas dhal by PW1 from the respondents, sampling of the same etc. and the presence of himself and PW2 at that time. PW4, the succes-sor-in-office of PW1 and conversant with the signature of PW1 has given evidence with reference to the documents kept in his office and the documents are proved and marked through him in this case. The lower Court on the basis of the discrepancies in the evidence of PWs.2 and 3 to the effect that while PW2 deposed that himself and PW1 went to the shop of the respondents travelling in a bus, PW3 has deposed that they went there in a jeep; while PW2 deposed that the sampling in this case was done by PW 1, PW3 has deposed that the sampling was done by PW2 and while PWs. 1 and 3 deposed that even though PW 1 asked the persons gathered there to attest the mahazar etc. they did not oblige. PW3 has deposed that they did not ask anybody to do the same. It is pertinent to note that the purchase of the article by PW1 for the purpose of analysis from the shop of the respondents is not disputed by them. PW3 himself has deposed that he has seen PW1 purchasing the article from the shop of the respondents for the purpose of analysis, sampling etc. Therefore, the above discrepancies weighed with the lower Court in the evidence of PWs. 1 and 2 and that of PW3, are of no significance at all in this case and the rejection of the prosecution case on the ground of the above discrepancies in the evidence of PWs. 1 and 2 and that of PW3 cannot be justified.

15. In point No. 1 the lower Court has held that PW1 has purchased 750 gms. of peas dhal from the respondents for chemical examination on 13-2-1987 at 10.40 a.m. In point No. 2 the lower Court has held that on the basis of the evidence of PW5, the Public Analyst and his analysis report Ext.P9 that the peas dhal exhibited for sale in the shop of the respondents was unfit for human consumption due to insect infection. I find those findings arrived at by the lower Court are on proper appreciation of the evidence on record and the challenge against those findings made by the respondents are not at all sustainable.

16. The other ground on which the lower Court found that the prosecution case is not sustainable is want of a proper notice under Section 13(2) of the Prevention of Food Adulteration Act. Section 13(2) of the Act reads as follows :

13(2) On receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.

It is well settled that notice under Section 13(2) of the Act is mandatory and it is a statutory safeguard provided for the accused so that he will get an opportunity to get the second sample of the article kept with the Local (Health) Authority analysed by the Central Food Laboratory in order to disprove the prosecution case. In this case the prosecution has contended that PW6, the Local (Health) Authority has sent the statutory notice under Section 13 (2) of the Prevention of Food Adulteration Act along with the copy of the analysis report to the respondents and those notices were not accepted by the respondents and under those circumstances the postal authorities returned those notices to PW6 as unclaimed. Exts. PI3 and P14 are the covers with the notices sent by PW6 to the respondents which were returned by the postal authorities with the endorsement ‘unclaimed and returned to sender’.

17. The respondents have contended that they have sold their properties and shifted their residence to Cherupuzha in Kannur district on 12-9-1986 and they had no business and that they were not residing at Thaimattom, Kalloorkad in Kumaramangalam Panchayath during the relevant period as alleged by the prosecution. But as I have already noted, the evidence of PWs. 1, 2 and 3 establishes that the respondents have been conducting business at that time and PW 1 has purchased peas dhal from the shop of the respondents for analysis on 13-2-1987. Apart from the evidence of PW 3 that the respondents have been conducting trade in the shop room belonging to him during the relevant period, the prosecution has produced Exts. PI8 to P20 and examined PW 8 the Executive Officer of Kumaramangalam Panchayath to establish this fact. PW 8 has deposed that the shop room bearing No. IV/3 of Kumaramangalam Panchayath is owned by PW 3 and Exts. P18 and P19 are the two extracts of the registers maintained by the Panchayat evidencing issue of licence under the Prevention of Food Adulteration Act to the 2nd respondent for the period 1986-87 to 1987-88. He has also deposed that Ext. P20 is the letter sent by him to the Food Inspector noting the details of the licence to conduct the trade in building bearing door No. IV/3 of Kumaramangalam Panchayat. Therefore, the fact that the respondents had been conducting trade in that building is established with clinching evidence beyond any shadow of doubt.

18. It is also pertinent to note that the summons issued by the lower Court in the above case as well as the notices issued by this Court in this appeal to the respondents on the very same address given in Exts. P13 and P14 notices are personally served upon the respondents. Apart from the contentions raised by the respondents in this case, there is absolutely nothing on record to show that the respondents were not residing in the address mentioned in Exts. P13 and P14 during the relevant time when those notices were sent by PW 6 to the respondents nor to show that they had been residing at Cherupuzha in Kannur district during the relevant period. Therefore, the case of the prosecution that the respondents were residing at the place to which Exts. P13 and P14 were addressed by PW 6 to the respondents, has to be accepted and the contention of the respondents that they were not residing in that address and they had been residing at Cherupuzha in Kannur district during that period has to be rejected.

19. As already noted compliance of the provisions of Section 13(2) of the Prevention of Adulteration Act is mandatory and the non-compliance of the provisions will defeat the valuable right of the accused to get the second sample examined by the Central Food Laboratory. Therefore, the question to be considered in this case is whether there is proper compliance of the provisions of Section 13(2) of the Act by PW 6, the Local Health Authority. As already noted the notices along with the copy of the analysis report by the Public Analyst sent by PW 6 are returned as unclaimed and those covers with the enclosures are marked as Exts. PI 3 and P14.

20. The Public Prosecutor submitted that PW 6 has done everything within his powers to serve the notices under Section 13(2) of the Act upon the respondents by sending them through registered post in the correct address of the respondents and due to the evasive and dilatory tactics of the respondents those notices could not be served by the postman as they did not accept those notices even after intimation regarding those registered letters was given to the respondents. Therefore, according to him there is legal and proper compliance of Section 13(2) of the Act in this case.

21. The counsel for the respondents vehemently argued that there is no compliance of the mandatory provisions of Section 13(2) of the Prevention of Food Adulteration Act in this case since no notice as contemplated under that provision is served upon the respondents. He also argued that if, in fact, notices were served upon the respondents, they would have certainly taken steps to send the second sample to the Central Food Laboratory for analysis in order to disprove the analysis report filed by the Public Analyst in this case. Therefore, according to him, by the failure of service of the notice as contemplated under Section 13(2) of the Act a very valuable right available to the respondents as provided under that statute is denied to them and it will cause very great prejudice to the respondents in this case. It is true that non-compliance of the provisions of Section 13(2) of the Act will entail very grave prejudice to the accused and that fact alone will entitle them for acquittal in cases of this nature….

22. Once a notice is sent by registered post in the correct address no burden is cast upon the send or the postman to arrange that notice to be served upon the addressee. If a letter is posted prepaid and registered with acknowledgement due or otherwise to the correct address of the addressee and delivered to the post office, there is presumption under Section 27 of the General Clauses Act that the latter is delivered to the addressee. The postman has no authority nor is expected to detain the letter until the addressee chooses to receive the letter, when the postman’ is unable to deliver the letter on his first visit. The postman who gives intimation of the arrival off the letter to the addressee can keep the letter only for a reasonable time and thereafter he has to return the same to the send or. In this case the endorsement in Exts. P13 and P14 shows that in spite of the intimation the respondents did not take delivery of the letter and therefore, it is returned to PW 6, the send or as unclaimed. The prosecution has also produced Ext. P16 letter sent by the Superintendent of Post Offices, Idukki Division to PW 6 on 18-9-1987 stating that the addressees of Exts. P13 and P14 registered letters were out of station at the time of receipt of the registered letters at Kumara-mangalam Post Office and therefore, the articles were kept in deposit for seven days at the Post Office after giving information at the addressee’s house and returned after that period as the addressee did not claim the articles within that period with the remark ‘unclaimed’. Over and above the presumption of legality of the official act done by the postman in this case, Ext. P16 also establishes that in spite of the fact that intimation regarding the arrival of Exts. P13 and P14 letters was given at the house of the respondents, they did not claim the same from the Post Office for seven days and therefore, the letters were returned to PW 6 as unclaimed.

23. If the contention of the respondent that in order to comply with the requirement of Section 13(2) of the Act actual delivery of the notice or deliberate refusal to accept the same by the addressee is necessary, it will lead us to anomalous and very dangerous situations. A cunning and unscrupulous accused can effectively thwart the delivery of the notice to him by staying away from his house for some time knowing the arrival of the notice and get it returned to the sendor as unserved. Under such circumstances constructive notice should be imputed to the addressee. In this connection the decision of the Supreme Court in M/s. Madan & Co. v. Wazir Jaivir Chand AIR1989 SC 630 is very appropriate and to the point. Though in that case the apex Court was considering the validity of notice issued under Sections 11 and 12 of the J & K Houses and Shops Rent Control Act, to the tenant, the principles laid down in that decision are equally applicable to the above case coming under the Prevention of Food Adulteration Act since the notice contemplated under Sections 11 and 12 of the J & K Rent Control Act as well as Section 13(2) of the Prevention of Food Adulteration Act are the in-built safeguards provided in the statute by the legislature in favour of the tenant or the accused, as the case may be, with regard to the proceedings for eviction under the Rent Control Act or the prosecution lodged under the Prevention of Food Adulteration Act. The nature of service of notice and the correct view to be taken by the Court with regard to the service of notice are clearly and elaborately laid down in para 6 of the judgment by the apex Court. I think it is profitable to reproduce the same which is as follows :

We are of opinion that the conclusion arrived at by the Courts below is correct and should be upheld. It is true that the proviso to Clause (i) of Section 11(1) and the proviso to Section 12(3) are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through post. All that a landlord can do to comply with this provision is to post a paid registered letter (acknowledgment due or otherwise) containing the tenant’s correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on and receipt by the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the where abouts of the addressee : he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee’s absence. His reponsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under O.V. of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, as addressee can easily avoid receiving the letter addressed to him “without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as ‘not found’, ‘not in station’, ‘addressee has left’ and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee’s own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away from some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time untill he returns or to forward them to the address where he has gone, or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that would be to read the word ‘served’ as ‘sent by post’, correctly and properly addressed to the tenant and the word ‘receipt’ as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by the tenant.

24. In the above case which came up for consideration before the Supreme Court, the registered notice sent by the landlord calling upon the tenant to pay the arrears of rent and terminating the tenancy, was returned by the postal authorities with the endorsement ‘left without address, returned to sender,’. While considering the sufficiency of service of notice under Sections 11 and 12 of the J & K Houses and Shops Rent Control Act and the words ‘served’ and ‘receipt’ occurring in those provisions the apex Court has made the above observations. In that case the postman who tendered the notice to the tenant was examined. In this case before me the postman who attempted to serve Exts. P13 and P14 notices upon the respondents and made the endorsement in Exts. P13 and P14 to the effect ‘unclaimed, returned to sender’, is not examined. But the prosecution has produced Ext. P16 letter sent by the Superintendent of Post Offices, Idukki Division stating that detailed enquiries made in the case revealed that the addressee of the registered letters were out of station at the time of receipt of the registered letters at the Kumaramangalam Post Office and therefore the articles were kept in deposit for seven days at the Post Office after giving information at the addressees’ house and returned after the above period and as the addressees did not claim the articles within that period the remark ‘unclaimed’ was recorded. Therefore, even though the postman who attempted to serve Exts. P13 and P14 letters upon the respondents is not examined, the prosecution has adduced satisfactory evidence in this case to establish that the postman attempted to serve the notices upon the respondents and as they were out of station at that time, he left the intimation in their house and kept the registered letters for seven days and as the respondents did not take delivery of the registered letters within that time they were returned with the endorsement ‘unclaimed’ to PW 6, the sender. Hence adopting the more reasonable, effective, equitable and practical interpretation and reading the word ‘served’ as ‘sent by post’, correctly and properly addressed to the accused and the word ‘receipt’ as tender of the letter by the postal peon at the address mentioned in the letters as laid down by the Apex Court, it has to be held that there is proper service of notices under Section 13(2) of the Act on the respondents in this case. Therefore, the contention of the respondents that there was no proper notice under Section 13(2) of the Act and as such the entire prosecution is vitiated for non-compliance of that mandatory provision of the Act, is absolutely unsustainable. Consequently the finding of the lower Court to the effect that the prosecution has failed to comply with the requirement of Section 13(2) of the Act and the non-compliance of the provisions of Section 13(2) of the Act has prejudiced the respondents is unsustainable.

25. As it is found by the lower Court itself that PW. 1, the Food Inspector has purchased peas dhal exhibited for sale in the shop of the respondents for the purpose of analysis and on analysis it was found that the peas dhal did not conform to the standard prescribed under the Prevention of Food Adulteration Act and is unfit for human consumption as insect infested and this Court has found that the rejection of the evidence of PW 1 by the lower Court as well as the finding of the lower Court that there is violation of the mandatory provisions of Section 13(2) of the Act due to non-service of the notices with copy of the analysis report on the respondents, are not sustainable and the evidence of PW 1 is admissible in evidence and there is proper service of notice under Section 13(2) of the Act, the finding of the lower Court that the respondents are not guilty of the offences alleged against them and the order of acquittal are not sustainable. It is clear from the evidence on record that the prosecution has established beyond reasonable doubt that the respondents have committed the offences punishable under Sections 2(ia)(a)(f), (m) and 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and Rule 5 Appendix B, A. 18.06 of the Prevention of Food Adulteration Rules.

Hence in reversal of the finding of the lower Court that the respondents are not guilty, I find that the respondents are guilty of the offences punishable under Sections 2(ia)(a)(f), (m) and 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and Rule 5, Appendix B, A. 18.06 of the Prevention of Food Adulteration Rules and convict them and sentence them to undergo imprisonment for six months each and pay a fine of Rs. 1000/- each in default of payment to undergo imprisonment for one month each. Appeal is accordingly allowed.

Supreme Court convicting man for wife’s murder – circumstantial evidence.

In this interesting case – the Court convicted the man for murdering his wife, on the basis of following evidence – the chain of circumstantial evidence :-
i) Motive (Suspected infidelity on part of wife – strained relations on that count)
ii) Last Seen together.
iii) Unnatural subsequent conduct.
iv) killed wife at hotel – court matched his signatures on visitor’s book and vakalatnama in appeal and also matched in court u/s 73. 
Supreme Court of India
Ajit Savant Majagavi vs State Of Karnataka on 14 August, 1997
Author: S S Ahmad
Bench: M K Mukherjee, S S Ahmad

PETITIONER:

AJIT SAVANT MAJAGAVI

Vs.

RESPONDENT:

STATE OF KARNATAKA

DATE OF JUDGMENT: 14/08/1997

BENCH:

M. K. MUKHERJEE, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:

Present :

Hon’ble Mr. Justice M.K. Mukherjee

Hon’ble Mr. Justice S. Saghir Ahmad

Mukul Sharma, Adv. for S.R. Bhat, Adv. for the appellant Ms. Manjula Kulkarni, Adv. for M. Veerappa, Adv. for the Respondent

J U D G M E N T

The following Judgment of the Court was delivered : J U D G M E N T

S. Saghir Ahmad, J.

Padmavathi, a house wife, in this case, has been strangulated to death, of all persons, by her husband, the appellant before us.

2. BATTLE OF SEXES has always been a battle of wits. Today it is denuded of its charms. It has degenerated into a WAR involving physical violence, torture, mental cruelty and murder of the female, including particularly, the WIFE.

3. Social thinkers, philosophers, dramatists, poets and writer have eulogised the female species of the human race and have always used beautiful epithets to describe her temperament and personality and have not deviated from that path even while speaking of her odd behaviour, at times. Even in sarcasm, they have not crossed the literary limit and have adhered to a particular standard of nobility of language. Even when a member of her own species, Madame De Stael, remarked “I am glad that I am not a man; for then I should have to marry a woman”, there was wit in it. When Shakespeare wrote, “Age cannot wither her; nor custom stale; Her infinite variety”, there again was wit. Notwithstanding that these writers have cried hoarse for respect for “Woman”, notwithstanding that Schiller said “Honour Women! They entwine and weave heavenly rose in our earthly life.” and notwithstanding that Mahabharat mentioned her as the source of salvation, the crime against “woman” continues to rise and has, today undoubtedly, risen to alarming proportions.

4. It is unfortunate that in an age where people are described as civilised, crime against “Female” is committed even when the child is in the womb as the “female” foetus is often destroyed to prevent the birth of female child. If that child comes into existence, she starts her life as a daughter, then becomes a wife and in due course, a Mother. She rocks the cradle to rear up her infant, bestows all her love on the child and as the child grows in age, she gives to the child all that she has in her own personality. She shapes the destiny and character of the child. To be cruel to such a creature is unthinkable. To torment a wife can only be described as the most hated and derisive act of a human being.

5. In this appeal, we have to deal with the unfortunate story of torture of a wife and her sudden and untimely death at the hands of a person who had promised to the God, before the altar of fire, to be her protector.

6. The appellant was married to a young woman, by name, Padmavathi @ Janki, in or about April, 1984 in Belgaum Taluk. Her father was P.W. 8, Paris Savant Kaggodi who was, incidentally, also brother of appellant’s mother. Padmavathi, after bidding a-dieu to her father and other relations, came to live with the appellant in her new house where her parent-in-laws also lived. She became the victim of mental torture and cruelty for a charge, which, unfortunately, can be levied easily against any virtuous woman, that she was involved in extra marital relationship; in this case with one Gundu Badasad.

7. On becoming pregnant, Padmavathi came back to her father’s house of performance of certain ceremonies connected with the pregnancy and continued to stay there till she delivered a mala child. The information of birth of the child was conveyed to the appellant and his parents but nobody, not even the appellant, came to see Padmavathi or the child although, in normal course, the birth of a male child has the effect of bringing smile even on a frowning face. Like a lull before the storm, this cold-shouldering was the precursor of the evils that were to befall Padmavathi.

8. Four months after the delivery, the appellant suddenly, on a Saturday, came to the house of his father-in-law (P.W. 8) and sought his permission to take his wife and the child to a temple at Stanvanidhi which was a sacred and holy place for the Jains. The next morning, that is, on Sunday, the appellant, his wife and the child were seen off by his sister-in-law at the Bus Station where they boarded a Karnataka State Road Transport Corporation Bus and came to Halaga village where on Monday, at 1.00 A.M., the appellant, with his wife and child came to the house of a person named Gopal Bhimappa Inchal. The appellant told Gopal Bhimappa Inchal that on their return from the temple, they could not get the “Bus” and, therefore, they had come to this house for the night halt. As promised, the appellant with his wife and the child left the house in the early morning and came to “Ashoka Lodge” in Belgaum where he checked in Room No. 113 at 9.30 A.M. on 09.09.85. That was the most unfortunate, as also, the last day in Padmavathi’s life. At about 12.00 Noon, the appellant came to the reception counter of “Ashoka Lodge” and informed the people there that his wife has died of heart-attack and that he was going to bring his relations. he left the “Lodge”, with child in his lap, never to come back. Her gave the child to a lady called Gangavva, in village Halaga who, later, sent the child to Padmavathi’s father.

9. The police was informed of the matter in due course which visited the “Lodge” and held the inquest. The body of Padmavathi was sent for post mortem examination which revealed that Padmavathi had died not because of cardiac arrest, but on account of asphyxia. Her death was homicidal.

10. The police arrested, challenged and prosecuted the appellant, who was found “not guilty” by the trial court but the High Court, on appeal by the State, reversed the verdict and convicted the appellant u/s 302 IPC and sentenced him to life imprisonment. Now, the matter is before us.

11. Learned counsel for the appellant has contended that the High Court should not have interferred with the judgment passed by the trial Court unless it was of the positive opinion that the judgment was perverse and that it had to be reversed for “substantial and compelling reasons”. It is contended that since substantive and compelling reason have not been indicated, the judgment of the High Court is liable to be set aside and that of the trial court is to be restored. It is also contended that even if all circumstance appearing against the appellant are taken into consideration, the cumulative effect of those circumstance does not lead to the irresistible conclusion that the appellant was guilty.

12. Section 378 of the Code of Criminal Procedure 1973 which corresponds to Section 417 of the old Code provides for appeal in case of acquittal.

13. There was quite a controversy among the Court with considerable divergence of judicial opinion as to the scope of appeal against an order of acquittal. This controversy remained unabated till some guideline was indicated by the Privy Council in Sheo Swarup & Ors. v. King Emperor, L.R. 61 Indian Appeals 398 = AIR 1934 P.C. 227(2). This decision was considered inSanwat Singh vs. State of Rajasthan, (1961) 3 SCR 120, in which the legal position was explained by this Court as under :-

(1) The evidence upon which the

order of acquittal was passed by

the trial court can reviewed,

reappreciated and reappraised by

the Appellate Court.

(2) The principle laid down by the

Privy Council in Sheo Swarup & ors.

v. King Emperor, L.R.. 61 Indian

Appeals 398 (supra); provide

correct guidelines for the

Appellate Court while disposing of

the appeal against the order of

acquittal.

(3) The words “substantial and

compelling reasons”, “good and

sufficiently cogent reasons” or

“strong reasons” used by this court

in its various judgments do not

have the effect of curtailing power

of the High Court to reconsider,

review or scrutinise the entire

evidence on record so as to come to

its own conclusions in deciding the

appeal against an order of

acquittal.

14. As a matter of fact, the power of the High Court are not different from its powers in an ordinary appeal against conviction. The additional burden which is placed on the High Court is that it has to consider each of the grounds which has prompted the trial court to pass the order of acquittal and to record its own reasons for not agreeing with the trial court.

15. In State of Uttar Pradesh vs. Samman Das, AIR 1972 SC 677 – (1972) 3 SCR 58, this Court again reiterated the above principles and pointed out that there were certain cardinal rules which had always to kept in view in appeal against acquittal. It was pointed out that there is a presumption of innocence in favour of the accused especially when he has been acquitted by the trial court. It was further to be kept in view that if two views of the matter are possible. the view which favours the accused has to be adopted. The Appellate Court has also to keep in view the fact that the trial judge has the advantage of looking at the demeanour of witnesses and that the accused is still entitled to the benefit of doubt. The doubt should be such as a rational thinking person will reasonably, honestly and conscientiously entertain and not the doubt of an irrational mind. (See also : Sohrab vs. State of Madhya Pradesh, (1973) 1 SCR 472 = (1972) 3 SCC 751 = AIR 1972 SC 2020; Ediga Sanjnna vs. State of Andhra Pradesh, (1976) 2 SCC 210; Satbir Singh & Anr. vs. State of Punjab, (1977) 3 SCR 195 = (1977) 2 SCC 263; Chandrakanta Devnath vs. State of Tripura, (1986) 1 SCC 549 = 1986 Cr.L.J. 809; G.B. Patel & Anr. vs. State of Maharashtra, AIR 1979 SC 135; Awadesh & Anr. vs. State of Madhya Pradesh, (1988) 3 SCR 513 = (1988) 2 SCC 557; Anokh Singh vs. State of Punjab, (1992) 1 (Supp) SCC 426; Gajanan Amrut Gaykwad & Ors. vs. State of Maharashtra, (1995) 3 (Supp) SCC 607; Ram Kumar vs. State of Haryana, AIR 1995 SC 280; Betal Singh vs. State of Madhya Pradesh, (1996) 4 SCC 203).

16. This Court has thus explicitly and clearly laid down the principle which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under :- (1) In an appeal against an order

of acquittal, the High Court

possesses all the powers, and

nothing less than the powers, it

possesses while hearing an appeal

against an order of conviction.

(2) The High Court has the power to

reconsider the whole issue,

reappraise the evidence and come to

its own conclusion and finding in

place of the findings recorded by

the trial court, if the said

findings are against the weight of

the evidence on record, or in other

words, perverse.

(3) Before reversing the findings

of acquittal, the High Court has to

consider each ground on which the

order of acquittal was based and to

record its own reason for not

accepting those grounds and not

subscribing to the view expressed

by the trial court that the accused

is entitled to acquittal.

(4) In reversing the finding of

acquittal, the High Court has to

keep in view the fact that the

presumption of innocence is still

available in favour of the accused

and the same stands fortified and

strengthened by the order of

acquittal passed in his favour by

the trial court.

(5) If the High Court, on a fresh

scrutiny and reappraisal of the

evidence and other material on

record, is of the opinion that

there is another view which can be

reasonably taken, then the view

which favours the accused should be

adopted.

(6) The High Court has also to keep

in mind that the trial court had

the advantage of looking at the

demeanour of witnesses and

observing their conduct in the

Court especially in the witness-

box.

(7) The High Court has also to keep

in mind that even at that stage,

the accused was entitled to benefit

of doubt. The doubt should be such

as a reasonable person would

honestly and conscientiously

entertain as to the guilt of the

accused.

17. It is in the light of these principle that it has to be seen whether the High Court, in the instant case, was justified in reversing the order of acquittal.

18. Before taking up this task, it may be stated that for a crime to be proved, it is not necessary that the crime must be seen to have been committed and must in all circumstances, be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principle fact or “factum probandum” may be proved indirectly by means of certain inferences drawn from “factum probans”, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together, they form a chain of circumstances from which the existence of the principal fact can legally inferred or presumed.

19. It has been consistently laid down by this Court that were 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 of the guilt of any other person. (See : Hukam Singh vs. State of Rajasthan, AIR 1977 SC 1063; Eradu and other vs. State of Hyderabad, AIR 1956 SC 316; Earabhadrappa vs. State of Karnataka, AIR 1983 SC 446;State of U.P. vs. Sukhbasi and others. AIR 1985 SC 1224; Balwinder Singh vs. State of Punjab, AIR 1987 SC 350; Ashok Kumar Chatterjee vs. State of Madhya Pradesh. AIR 1989 SC 1890).

20. The circumstance 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 vs. State of Punjab, AIR 1954 SC 621, it was laid down that where the case depends upon the conclusions drawn from circumstance, the cumulative effect of the circumstance must be such a to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.

21. In Padala Veera Reddy vs. State of Andhra Pradesh and others, 1991 SCC (Crl.) 407 = 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 circumstance 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 circumstance, 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.

22. (See also : State of Uttar Pradesh vs. Ashok Kumar Srivastava, (1992) 2 SCC 86 = 1992 Cr.LJ 1104) in which 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 inference, the one in favour of the accused must be accept. 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.

23. What is important is that the possibility of the conclusions being consistent with the innocence of the accused must be ruled out altogether.

24. Let us now delve into the merits.

25. In order to prove its case, the prosecution has examined many witnesses to establish the link between the appellant and the crime. Paris Savant Kaggodi (P.W. 8) stated that his daughter Padmavathi was married to the appellant who was being ill-treated at the house of her in- laws principally because the appellant entertained a doubt that she was having extra marital relationship with Gundu Badasad. When Padmavathi became pregnant, she came to live with her parents and at the house of her parents, she gave birth to a child.

26. The learned Session Judge and the High Court have both found that this part of the statement of Padmavathi’s father has not been challenged and, therefore, it was established that Padmavathi was not treated fairly at the house of her in-law and the appellant carried doubt in his mind that she was involved in post-marital sex with Gundu Badasad. It was also established that she gave birth to a child at the house of her father.

27. The appellant, however, denied the prosecution story that he came to the house of his father-in-law and took away his wife and child. The trial court, namely, the IInd Addl. Sessions Judge, Belgaum has found that the prosecution had failed to establish that the appellant had come to the house of his father-in-law and requested him to take his wife and child to a temple or that, thereafter, he took his wife to the “Ashoka Lodge” at Belgaum where she was throttled to death by the appellant. The High Court, however, has reversed this finding and come to the conclusion that the death of Padmavathi, in Room No. 113 of “Ashoka Lodge”, at the hands of the appellant, was established by the fact that her dead body, which was identified by Mallasarja (P.W. 1) of Gandigawad village who was working at Belgaum, was found in that room. She had not died a natural death but was strangulated to death which was established by the post- mortem examination conducted by the Doctor (P.W. 12). Ajit (P.W. 2) who was the room-boy of “Ashoka Lodge” categorically stated that the appellant with his wife and the child had come to the “Lodge” and occupied Room No. 113. He also stated that the appellant later left the “Lodge” with his child on the pretext that his wife had died and that he was going to call his relations.

28. It is contended by the learned counsel for the appellant that since P.Ws. 9, 14, 17 and 18 as also P.W. 3 had turned hostile and had not supported the prosecution case, their statements are liable to be excluded and if this is done, the result will be that the link in the prosecution story would stand broken and the appellant could not be held guilty on the basis of broken circumstantial evidence. The Addl. Sessions Judge had fallen into the web of this, apparently, forceful argument but the High Court, and in our opinion, rightly, accepted the remaining evidence and held that in spite of hostility of the aforesaid witnesses, the prosecution story was fully established.

29. We would like to add a few words of our own on the effect of exclusion of statements of those witnesses who had turned hostile.

30. Gangavva (P.W. 3), with whom the child was left by the appellant on his return from “Lodge”, was the witnesss who was treated as hostile. Even if her statement is excluded, the main part of the prosecution story that the appellant had come with Padmavathi to “Ashoka Lodge” where they had occupied Room No. 113 is not affected. Their presence in “Ashoka Lodge” is testified by Ajit (P.W. 2), the room-boy of “Ashoka Lodge”. Padmavathi was, therefore, last seen in the company of the appellant. The appellant left the “Lodge” on the pretext that his wife had died and he was going to call his relations. But he did no return. His conduct of not returning back to Room No. 113 eloquently indicates that he, in order to avoid arrest, did not return to “Lodge”. He left the dead body of Padmavathi lying in Room No. 113 to be found out there by the hotel and police people. An innocent person would not have behaved in that fashion. His innocence would have been reflected in his conduct of coming back to the “Lodge”.

31. Apart from the appellant’s conduct in not returning to “Ashoka Lodge”, aft having left the “Lodge” at 12.00 Noon, another conduct of the appellant is significantly eloquent. When he reported at “Ashoka Lodge”, he was sporting a beard and had also unkempt hairs on his head. In the evening of the day of incident, he got his head and the beard shaved which is proved by the barber (P.W. 5), examined in the case. This was done obviously to the conceal his identity but police was vigilant and the appellant was apprehended without difficulty.

32. The appellant’s further conduct in taking away the child with him at 12.00 Noon is also significant. The child was hardly four months old and was a breast-suckling infant. Had Padmavathi been alive, the appellant; would have left the child with her. His taking away the child with him coupled with his statement made to the room-boy that his wife had died of heart-attack, establishes that Padmavathi was already dead. Since she was strangulated to death, there was non else except the appellant to have done it. It was positively that act of the appellant. He took the extreme step on account of suspected infidelity of his wife which he had been harbouring since his marriage.

33. The other hostile witnesses are Jaipal (P.W. 14) who had seen the appellant and his wife Padmavathi with their child in a Karnataka State Road Transport Corporation Bus, P.W. 9 before whom extra judicial confession was alleged made the appellant, P.Ws. 17 and 18 who were the witnesses for the Panchanamas apart from P.W. 15 who was also the witness of Panchanama but he did not turn hostile. If the statements of these witnesses are excluded, the prosecution case is still not affected on merits inasmuch as the story that the appellant had gone to the house of his father-in- law and taken away his wife and child and that the ultimately stayed in “Ashoka Lodge” at Belgaum where Padmavathi was found dead is not affected. Whether the appellant with his wife and the child had gone to the temple or had stayed with a friend in the night, cannot be said to be essential links in the chain of events leading to the conclusion that the appellant had committed the crime. The appellant was last seen with Padmavathi in Room No. 113 of “Ashoka Lodge” where he had stayed on the fateful day and had left the “Lodge with his child on the pretext that he was going to call his relations as Padmavathi had died of heart-attack. As pointed out earlier, Padmavathi had died of strangulation. The appellant’s presence in the Room immediately before the death of Padmavathi and his conduct in not coming back to the “Lodge” are circumstances strong enough to establish his guilt.

34. Some dispute appears to have been raised before the High Court as also before us that the hotel records should not be relied upon to indicate that the appellant had stayed in “Ashoka Lodge”.

35. Ajit (P.W. 2), room-boy of the “Lodge”, in his statement on oath, has given out that the appellant had come with his wife and child to the “Ashoka Lodge” and had taken one Room on the ground-floor for his stay. The necessary entry (Ex.P1(a)) was made by the Manager of the “Lodge” in the “Register of Lodgers”. The appellant had put his signature on the Register which is Ex.P1(b). The appellant, his wife and the child had been taken by the room-boy to Room No. 113 where he also supplied an extra bed. The hotel Manager, though mentioned as a witness in the charge-sheet, was not examined as he had already left the service of the “Lodge”. These facts stand proved by the statement of the room-boy and the High Court has already recorded a finding that the appellant had stayed in Room No. 113 of the “Ashoka Lodge”.

36. The original records were also placed before us and we have perused those records. Since learned counsel for the appellant contended that the appellant had not stayed in the “Ashoka Lodge”, we looked into the “Register of Lodgers”. It contains the relevant entry against which signature of the appellant also appears. His signature also appears on the “Vakalatnama” filed by him in this appeal. In the presence of the learned counsel for the parties, we compared the signature of the appellant on the “Vakalatnama” with the signature in the “Register of Lodgers”. A mere look at the signatures was enough to indicate the similarity which was so apparent that it required no expert evidence. This comparison was done by us having regard to the provisions of Section 73 of the Evidence Act which provides as under:- S.73. Comparison of signature,

writing or seal with others

admitted or proved.- In order to

ascertain whether a signature,

writing or seal is that of the

person by whom it purports to have

been written of made, any

signature, writing or seal admitted

or proved to t satisfaction of the

Court to have been written or made

by that person may be compared with

the one which is to be proved,

although that signature, writing or

seal has not been produced or

proved for any other purpose.

The Court may direct any

person present in Court to write

any words or figures for the

purpose of enabling the Court to

compare the words or figures so

written with any words or figures

alleged to have been written by

such person.”

37. This Section consists of two parts. While the first part provides for comparison of signature, finger impression, writing etc. allegedly written or made by a person with signature or writing etc. admitted or proved to the satisfaction of the Court to have been written by the same person, the second part empowers the Court to direct any person including an accused, present in Court, to give his specimen writing or finger prints for the purpose of enabling the Court to compare it with the writing or signature allegedly made by that person. The Section does not specify by whom the comparison shall made. However, looking to the other provision of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.

38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature of handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not power to compare the disputed signature with admitted signature as this power is clearly available under Section 73 of the Act. (See : State (Delhi Administration) vs. Pali Ram, AIR 1979 SC 14 = (1979) 2 SCC 158)

39. We have already recorded above that on the comparison of the signature in the “Register of Lodgers” with the appellant’s signature on the “Vakalatnama”, we have not found any dissimilarity and are convinced that the appellant himself had signed the “Register of Lodgers” in token of having taken Room No. 113 in “Ashoka Lodge” on rent wherein he had stayed with his wife and the child.

40. On an overall consideration of the matter, we are of the opinion that the High Court, in reversing the judgment of the trial court, had fully adhered to the principles laid down by this Court in various decisions and there is no infirmity in its judgment.

41. The circumstance, the conduct and behaviour of the appellant conclusively establish his guilt on no amount of innovative steps by him including sporting a beard and later shaving off the beard and the head could conceal the offence or his identity. It was rightly remarked by the famous Urdu poet, Amir Meenai in a couplet :-

“Qareeb hai yaro jo Roz-i-Mahshar

Chhupey ga kuston ka khoon keonkar

Jo chup Rehegi Zaban-i-Khanjar

Lahoo Pukarega Aastin Ka”

42. Translated into English, it will mean :- “On the day of Judgment, you will

not be able to conceal the killing

of innocents. If the sword will

keep silent, the blood stains on

your sleeves will reveal your

guilt.”

43. For the reasons stated above, we find no merit in the appeal which is dismissed. The appellant is no bail. His bail bonds are cancelled. He shall be take into custody forthwith to serve out the life sentence.

Supreme Court on S.92 Evidence Act – Doctrine of Conclusivity of Documentary Evidence.

Supreme Court of India
State Bank Of India & Anr vs Mula Sahakari Sakhar Karkhana Ltd on 6 July, 2006
Author: S Sinha
Bench: S Sinha, P Balasubramanyan

CASE NO.:

Appeal (civil) 2801 of 2006

PETITIONER:

State Bank of India & Anr.

RESPONDENT:

Mula Sahakari Sakhar Karkhana Ltd.

DATE OF JUDGMENT: 06/07/2006

BENCH:

S.B. Sinha & P.K. Balasubramanyan

JUDGMENT:

J U D G M E N T

S.B. SINHA, J.

(Arising out of SLP (C) No. 22576 of 2005)

Leave granted.

BACKGROUND FACTS

The Respondent is a cooperative society. It has a sugar factory. It entered into a contract for installation of a paper plant at village Sonai on turnkey basis so as to enable it to utilize the left over material called “bagasse” of the sugarcane with M/s. Pentagon Engineering Pvt. Ltd. (for short “Pentagaon”). The total value of the contract was Rs. 3,40,00,000/-. Pentagon furnished a performance guarantee in regard to the machinery supplied by it. The said contract contained a clause for retention of 10% of the contract price by the cooperative society in the following terms:

“15.2.4 5% of the contract price shall be payable after satisfactory commissioning and working of the plant for three months that is three months from the achievement of the performance guarantee as stipulated in clause no. 8 and 9 above, by a separate letter of credit.

15.2.5 5% of the contract price shall be paid after six months after satisfactory commissioning of the plant and continuous successful working of the plant during the period i.e. six months working of the plant as per clause 8 and 9 above, by a separate letter of credit.”

Pentagon, however, by a letter dated 6th April, 1985 suggested for a modification as regards the said payment clause regulating the cooperative society to waive its rights to retain the said 10% of the contract price, and in its turn proposed to have a letter of credit so that they can furnish appropriate bank guarantee; to which the cooperative society accepted stating:

“You have also to submit the performance guarantee at 10% of the contract price, if the same guarantee is not received the karkhana is entitled to recover it from the balance payment and

accordingly we have deducted it for want of performance guarantee.”

Pentagon in response thereto by its letter dated 16th April, 1985 agreed to the said proposal stating:

“As per agreement you have to open separate L/C for 10% retention which is still not done by you. As soon as you open L/C, we will give you Bank Guarantee for the retention money within 10 to 15 days thereafter.”

The Bank Guarantee/Indemnity was thereafter furnished by the Appellant herein on or about 7th September, 1985; the relevant clauses whereof read as under:

“Please find enclosed herewith the bank guarantee bearing No. 85/17 dated 4th September, 1985 issued by State Bank of India, Dombivli Industrial Estate Branch, Dombivli.

The guarantee is issued in pursuance of our agreement for paper project dated 25.9.1983. The guarantee covers 10% retention amount of Rs. 34 lacs.

An amount of Rs. 13,76,285/- is retained from the Proforma Invoices of the material reached at site.

Kindly release the amount of Rs.

13,76,285/- to be retained by you immediately on receipt of this guarantee and oblige.”

THE DISPUTE

Disputes and differences arose by and between the cooperative society and Pentagon. The contract of Pentagon was terminated by the cooperative society by a notice dated 17th July, 1987. A claim of Rs.3,23,28,209.10 was also raised. Pentagon not only denied and disputed its liability to pay the said sum but also, on the other hand, asserted that an amount of Rs.4,66,73,300/- was due and owing to it by a letter dated 18th July, 1987.

The Bank Guarantee was thereafter invoked by the cooperative society. The demand of the cooperative society invoking the said Bank Guarantee met resistance from the Appellant stating that it had executed an agreement of indemnity pursuant whereto or in terms whereof only losses, claims, damages, actions and costs which might have been suffered by it, were covered and the transaction in question does not constitute Bank Guarantee. It was, therefore, contended that unless the cooperative society proved any loss or damage for design, performance, workmanship or supply of any defective material through a competent court or authority, the Appellants were not liable to pay the said amount.

PROCEEDINGS

Cooperative society thereafter filed a suit in the Court of Civil Judge, Senior Division, Ahmednagar which was numbered as Special Civil Suit No. 310 of 1987. An application was filed by the cooperative society in the said suit for a direction upon the Appellant to deposit the amount of Rs.34,00,000/-.

ORDER OF THE COURT

The matter relating to passing of an interim order went upto the High Court. The High Court by an order dated 23rd February, 1988 directed that the said amount be retained by the Appellant subject to the condition that in the event, the suit is decreed the said amount would be paid with interest @ 12% per annum. The suit was dismissed. An appeal was preferred thereagainst by the cooperative society before the High Court. The High Court construing the said agreement dated 25.9.1983 to be a Bank Guarantee decreed the suit directing Appellant to pay the said sum of Rs.34,00,000/- with interest @ 14% per annum.

The Appellant is, thus, before us.

SUBMISSIONS

Mr. G.E. Vahanvati, learned Solicitor General appearing on behalf of the Appellants submitted that:

(i) On a true construction of the document dated 4th September, 1985, it would be seen that the same is a contract of indemnity and not a Bank Guarantee.

(ii) The High Court committed a manifest error in considering the oral evidence adduced by the parties in construing the said document dated 4th September, 1985.

(iii) Interest awarded @ 14% per annum is contrary to and inconsistent with the directions of the High Court as contained in its order dated 23rd February, 1988.

Mr. Naphade, learned Senior Counsel appearing on behalf of the cooperative society, on the other hand, submitted that:

(i) the substance of the matter must be considered in the backdrop of events in which the Bank Guarantee was furnished by the Appellant and for that purpose surrounding circumstances were relevant. As the terms of contract need not necessarily be gathered from one document, the relevant circumstances could also be considered, they being:-

(a) The document in question is by way of a letter. It refers to the original agreement dated 29.5.1983 in terms whereof the cooperative society agreed to purchase from Pentagon the paper plant on turnkey basis. The said agreement stipulates that final payment should be made to the supplier on his furnishing a Bank Guarantee to the cooperative society for design, performance, workmanship or against defective materials or equipment supplied.

(b) Pantagon was a client of the Appellant and it had approached it for furnishing the Bank Guarantee.

Strong reliance in this behalf has been placed on S. Chattanatha Karayalar v. The Central Bank of India and Others [1965 (3) SCR 318] and P.L. Bapuswami v. N. Pattay Gounder [1966 (2) SCR 918].

BANK GUARANTEE

The Operative portion of the Bank Guarantee dated 7th September, 1985 reads, thus:

“NOW THEREFORE THIS BANK

GUARANTEE is made in favour of Mula Sahakari Sakhar Karkhana Ltd. by State Bank of India (Dombivli Industrial Estate Branch) agreed security the State Bank of India (Dombivli Industrial Estate Branch) hereby agrees and undertake subject to the terms and conditions set forth in this agreement to indemnify and keep indemnified Mula Sakhari Sakhar Karkhana Ltd. against all losses, claims, damages actions and cost in respect of such sums which the supplier shall become liable to pay as the terms of the said order.”

In addition to the aforementioned, the Appellant agreed to the other terms and conditions referred to therein, stating :

“NOTWITHSTANDING anything hereinbefore

contained, our maximum liability under this guarantee is restricted to Rs. 34,00,000/- (Rupees Thirty four Lacs only). This guarantee shall remain in force upto 3rd September 1987 unless a suit or action to enforce claim under this guarantee is filed against us on or before the 3rd September, 1987 all right under this guarantee shall be forfeited and we shall be relieved and discharged from all liabilities hereunder.”

The High Court, however, despite noticing the said document in extenso, committed a manifest error in opining:

“The recital in the preamble in question itself cannot be the foundation to interpret the document in question as a document of indemnity”

Although it was opined that the same was intended to be a contract of indemnity, the High Court wrongly observed:

“There was no objection of any kind referred to or placed on the record by the appellants. The Officer of the Bank stated before the Court that the document in question was intended to be a contract of guarantee and not a contract of indemnity. The written document (Exhibit-46) as quoted above lays emphasis on the preamble as under”

Yet again, in the said paragraph, the operative portion of the document was erroneously described as a preamble stating:

“The preamble of the document in question creates an impression that the said document is a contract of indemnity and not a contract of guarantee.”

The High Court, furthermore, inserted some words in the said document which in fact were not there, as for example, in paragraph 31 of the impugned judgment it added the term “unequivocal condition” which term did not find place in the document in question. Similarly, in paragraph 34, it was stated:

“The appellants are entitled to their claimed money without any delay or demur. The nature and need of such commercial contracts and documents need to be respected by the parties concerned”

Yet again, it was stated:

“If the terms and conditions of the Bank Guarantee are unconditional and absolute, the respondents have no choice but to honour the same”

(Emphasis added)

No such terms were used in the said document. The approach of the High Court on construction of the said document was, thus, patently wrong.

The High Court committed a manifest error in terming the operative portion of the document as a preamble. It had inserted terms and expressions which did not find place in the document in question.

The High Court furthermore considered the oral evidence adduced by the parties despite the bar contained in Sections 91 and 92 of the Indian Evidence Act holding:

(i) “The testimony of these witnesses, in no way, derogates the document in question. On the contrary, the evidence supports the purpose and object of the execution of the Bank Guarantee in question. It also supports that the parties, specially the appellants are the creditors-beneficiaries, the respondents  Bank are the guarantors  the surety and the supplier is M/s Pentagon  the principal debtor. As we have noted and as

contemplated under Section 124 of the

Contract Act, such Bank Guarantee should have three ingredients, i.e., creditor,

guarantor and principal debtor. On a bare reading of this document, it is nothing but a tripartite agreement between the parties. M/s. Pentagon submitted the said Bank

Guarantee by its letter dated 7th September, 1985 to the appellants. The appellants, as noted above, without any demur or

objection, accepted this document as a Bank Guarantee and based upon the same, the

amount was released. There is no evidence to support that in absence of this bank

guarantee, the amount would not have been released by the appellants.”

(ii) “Therefore, according to us, the express terms of the written agreement in question, supported by the testimony of the

respondent  Bank’s Officer itself, apart from the appellants, some statements in the cross-examination or raising doubts about the nature of the agreement by one of the Bank witness, that itself would not affect the written agreement in question”

(iii) “In this background, we cannot overlook the circumstances under which the particular words were used and/ or misused”

A document, as is well known, must primarily be construed on the basis of the terms and conditions contained therein. It is also trite that while construing a document the court shall not supply any words which the author thereof did not use.

The document in question is a commercial document. It does not on its face contain any ambiguity. The High Court itself said that ex facie the document appears to be a contract of indemnity. Surrounding circumstances are relevant for construction of a document only if any ambiguity exists therein and not otherwise.

The said document, in our opinion, constitutes a document of indemnity and not a document of guarantee as is clear from the fact that by reason thereof the Appellant was to indemnify the cooperative society against all losses, claims, damages, actions and costs which may be suffered by it. The document does not contain the usual words found in a bank guarantee furnished by a Bank as, for example, “unequivocal condition”, “the cooperative society would be entitled to claim the damages without any delay or demur” or the guarantee was “unconditional and absolute” as was held by the High Court.

The High Court, thus, misread and misinterpreted the document as on scrutiny thereof, it had opined that it was a contract of guarantee and not a contract of indemnity.

The document was executed by the Bank in favour of the cooperative society. The said document indisputably was executed at the instance of Pentagon.

We have hereinbefore noticed the surrounding circumstances as pointed out by Mr. Naphade as contained in Clauses 15.2.4 and 15.2.5 of the contract vis-`-vis the letters exchanged between the parties dated 6.4.1985, 11.4.1985, 16.4.1985 leading to execution of the document dated 07.09.1985 by the First Appellant in favour of the cooperative society.

We are, however, unable to accept the submissions of the learned Senior Counsel that the bank guarantee must be construed in the light of other purported contemporaneous documents. A contract indisputably may be contained in more than one document. Such a document, however, must be a subject matter of contract by and between the parties. The correspondences referred to hereinbefore were between the cooperative society and Pentagon. The said correspondences were not exchanged between the parties hereto as a part of the same transaction. The Appellant understood that it would stand as a surety and not as a guarantor.

The decision of this Court in S. Chattanatha Karayalar (supra) on which reliance was placed by Mr. Naphade is not applicable to the fact of the present case. Therein, the construction of a promissory note executed in favour of a Bank was in question. The said promissory note was construed in the context of the letters and the hypothecation agreement executed by the borrower on the basis whereof it was held that the status of the Appellant therein with regard to the overdraft amount was that of a surety and not that of a co-applicant. In the said decision itself, Ramaswami, J. opined:

“The provisions of Section 92 of the Evidence Act do not apply in the present case, because Defendant 3 is not attempting to furnish evidence of any oral agreement in derogation of the promissory note but relying on the existence of a collateral agreement in writing  Exs. A & G which form parts of the same transaction as the promissory note  Ex. B”

The High Court proceeded on the basis that Section 92 of the Evidence Act would be attracted in the instant case but despite the same it referred to the oral evidence so as to find out the purported circumstances surrounding the transaction, which in our view, was not correct.

In P.L. Bapuswami (supra), relied upon by Mr. Naphade, this Court was concerned with a question as to whether Ex. B-1 therein was a transaction of mortgage by conditional sale or a sale with a condition of re- transfer in the light of Section 58(c) of the Transfer of Property Act. We are not concerned with such a case here.

It is one thing to say that the nature of a transaction would be judged by the terms and conditions together with the surrounding and/or attending circumstances in a case where the document suffers from some ambiguities but it is another thing to say that the court will take recourse to such a course, although no such ambiguity exists.

[See Bishwanath Prasad Singh v. Rajendra Prasad and Anr. [(2006) 2 SCALE 699]

It is beyond any cavil that a bank guarantee must be construed on its own terms. It is considered to be a separate transaction.

If a construction, as was suggested by Mr. Naphade, is to be accepted, it would also be open to a banker to put forward a case that absolute and unequivocal bank guarantee should be read as a conditional one having regard to circumstances attending thereto. It is, to our mind, impermissible in law.

In New India Assurance Company Ltd. v. Kusumanchi Kameshwara Rao and Another [(1997) 9 SCC 179], it is stated:

“It is obvious that when such guarantee bonds are reduced to writing the express terms of this writing containing the guarantee bond would be the repository of the obligations of the guarantor flowing from the surety bond. As per Sections 91 and 92 of the Indian Evidence Act, 1872 no evidence dehors the terms of the agreement, whether documentary or oral, can be led by the parties to get out of the express terms thereof. Whether the express terms of the guarantee bond give rise to the contract of guarantee sought to be enforced will be the only limited enquiry which could be gone into by the courts while deciding the rights and obligations flowing from such contract of guarantee which is a tripartite contract between the creditor, principal debtor and the surety. Once such suretyship agreement is established on the clear terms of the bond then as laid down by the aforesaid decisions of this Court no latitude can be given to the contracting party, namely, the surety or even the principal debtor to enable them to get out of the obligations of the suretyship agreement flowing from such contract, except in exceptional circumstances as indicated in these decisions.”

In Hindustan Construction Co. Ltd. v. State of Bihar and Others [(1999) 8 SCC 436], the guarantee in question was in the following terms:

“We, State Bank of India, incorporated under the State Bank of India Act, 1955, and having one of our branches at Nyayamurti C.N. Vaidya Marg, Fort, Bombay-400 023 (hereinafter referred to as ‘the said Bank’), as instructed by the contractor, agree unconditionally and irrevocably to guarantee as primary obligator and not as surety merely, the payment of the Executive Engineer, Kharkai Dam Division II, Icha, Chaliama, Post Kesargarhia, District Singhbhum, Bihar, on his first demand without whatsoever right of objection on our part and without his first claim to the contractor, in the amount not exceeding Rs.10,00,000 (Rupees ten lakhs only) in the event that the obligations expressed in the said clause of the above- mentioned contract have not been fulfilled by the contractor giving the right of claim to the employer for recovery of the whole or part of the advance mobilisation loan from the contractor under the contract”

Despite such conditions, holding that the guarantee in question was a performance guarantee, this Court opined:

“The Bank, in the above guarantee, no doubt, has used the expression “agree unconditionally and irrevocably” to guarantee payment to the Executive Engineer on his first demand without any right of objection, but these expressions are immediately qualified by following:

“… in the event that the obligations

expressed in the said clause of the above- mentioned contract have not been

fulfilled by the contractor giving the right of claim to the employer for recovery of the whole or part of the advance

mobilisation loan from the contractor

under the contract.”

This condition clearly refers to the original contract between HCCL and the defendants and postulates that if the obligations, expressed in the contract, are not fulfilled by HCCL giving to the defendants the right to claim recovery of the whole or part of the “advance mobilisation loan”, then the Bank would pay the amount due under the

guarantee to the Executive Engineer. By referring specifically to clause 9, the Bank has qualified its liability to pay the amount covered by the guarantee relating to “advance mobilisation loan” to the Executive Engineer only if the obligations under the contract were not fulfilled by HCCL or HCCL has misappropriated any portion of the “advance mobilisation loan”. It is in these circumstances that the aforesaid clause would operate and the whole of the amount covered by the “mobilisation advance” would become payable on demand. The bank guarantee thus could be invoked only in the circumstances referred to in clause 9 whereunder the amount would become payable only if the obligations are not fulfilled or there is misappropriation. That being so, the bank guarantee could not be said to be unconditional or unequivocal in terms so that the defendants could be said to have had an unfettered right to invoke that guarantee and demand immediate payment thereof from the Bank.”

It was clearly held therein that the bank guarantee constitutes a separate, distinct and independent contract between the bank and the defendants.

In this case, the document in question does not specifically refer to any particular clause of the contract. In fact the contract does not contain any clause requiring Pentagon to furnish any Bank Guarantee.

We may now consider the decision in Daewoo Motors India Ltd. v. Union of India and Others[(2003) 4 SCC 690]. The bank guarantee involved therein inter alia read as under:

“We, Times Bank Ltd., PTI Building, Parliament Street, New Delhi, 110 001 further agree that the demand made by the President of India any money so demanded notwithstanding any dispute raised by M/s Daewoo Motors India Ltd. in any

proceeding before any court or tribunal; We, Times Bank Ltd., PTI Building, Parliament Street, New Delhi 110 001 further agree that the demand made by the President of India shall be conclusive as regards the amount due and payable by us under these presents as out of liability under these presents are absolute and unequivocal;”

Construing the terms thereof, this Court held:

“From a perusal of the above clauses, it is abundantly clear that the bank guarantee furnished by the Bank is an unconditional and absolute bank guarantee. The Bank has rendered itself liable to pay the cash on demand by the President of India “notwithstanding any dispute raised by M/s Daewoo Motors India Limited in any proceeding before any court or tribunal”. It is worth noticing that the clause in the bank guarantee specifically provides that the demand made by the President of India shall be conclusive as regards the amount due and payable by the Bank under this guarantee and the liability under the guarantee is absolute and unequivocal. In the face of the clear averments, it is trite to contend that the bank guarantee is a conditional bank guarantee. Therefore, the Bank has no case to resist the encashment of the bank guarantee. Inasmuch as we have held that the bank guarantee is an

unconditional bank guarantee, the case of Hindustan Construction Co. Ltd. v. State of Bihar is of no avail to the appellant.”

The said decision, in the facts and circumstances of the case, cannot be said to have any application here.

We are not oblivious of the decisions of this Court where, save and except the cases of fraud or irretrievable evil, the Bank has been held liable to pay the guaranteed amount without any demur whatsoever. In an instructive judgment, M. Jagannadha Rao, J. in Federal Bank Ltd. v. V.M. Jog Engineering Ltd. and Others [(2001) 1 SCC 663] referring to Uniform Commercial Practice of Documentary Credits and a catena of decisions of this Court as also the English Courts, dealt with a case where a fraud was alleged and observed:

“Thus, not only must “fraud” be clearly proved but so far as the bank is concerned, it must prove that it had knowledge of the fraud. In United Trading Corpn. S.A. v. Allied Arab Bank it was stated that there must be proof of knowledge of fraud on the part of the bank at any time before payment. It was also observed that it

“would be sufficient if the corroborated evidence of the plaintiff usually in the form of contemporary documents and the unexplained failure of a beneficiary to respond to the attack, lead to the conclusion that the only realistic inference to draw was ‘fraud’.”

[See also Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. and Another,(1997) 6 SCC 450] and M/s. BSES Ltd. (Now Reliance Energy Ltd.) v. M/s. Fenner India Ltd. & Anr. JT 2006 (2) SC 192]

However, in this case, we have no doubt in our mind that the document in question constitutes a contract of indemnity and not an absolute or unconditional bank guarantee. The High Court, therefore, erred in construing the same to be an unconditional and absolute bank guarantee.

RATE OF INTEREST

Contention of Mr. Vahanvati as regards the rate of interest is also incontrovertible. The order dated 23rd February, 1988 clearly states that the amount would be repaid with an interest @ 12% and in that view of the matter, the High Court could not have directed payment of interest @ 14%.

For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The decree of the trial court is restored. The appeal is allowed with costs. Counsel’s fee assessed at Rs. 5000/-.

138 Acquittal won’t bar civil suit for recovery says Supreme Court

Comment : In this case the Court held two basic points :-
i) Civil and Criminal Proceedings can go on, on an acquittal u/s 138 would not automatically oust a civil suit for recovery. 
ii) Doctrine of Reverse Burden – to be proceeded with caution – presumption de hors proof of foundational facts improper. 

Supreme Court of India
Vishnu Dutt Sharma vs Daya Sapra on 5 May, 2009
Bench: S.B. Sinha, Mukundakam Sharma

HELD: 1.1 In the instant case, the cause of action for institution of the civil suit was grant of loan whereas that of the criminal case was return of a cheque inter alia on the premise that the account of the accused was insufficient to honour it or that it exceeded the amount arranged to be paid from that account by an agreement with the bank. [Para 13] [984-D-E]

1.2 Order 7 Rule 11(d) CPC provides for rejection of a plaint inter alia on the premise the suit was barred by any statute. Such an embargo in the maintainability of the suit must be apparent from the averments made in the plaint. A creditor can maintain a civil and criminal proceeding at the same time. Both the proceeding, thus, can run parallely. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case vis-a-vis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit ‘prepon-derance of probability’ would serve the purpose of obtaining a decree. [Paras 10 and 11] [983-G-H; 984-A-C]

1.3 In a criminal proceeding, although upon discharge of initial burden by the complaint, the burden of proof may shift on an accused, the court must apply the principles of ‘presumption of innocence as a human right’. The statutory provisions containing the doctrine of reverse burden must therefore be construed strictly. Whereas a provision containing reverse burden on an accused would be construed strictly and subject to the strict proof of the foundational fact by the complainant, in a civil proceeding no such restriction can be imposed. Reverse burden or evidentiary burden on an accused, thus, would require strict interpretation and application. However, in a civil suit such strict compliance may not be insisted upon. If that be so, it cannot be said that a judgment rendered in criminal proceeding would make continuation of a civil proceeding an abuse of the process of court. [Paras 16 and 19] [965-D-F; 989-B-C]

Krishna Janardhan Bhat vs. Dattatraya G. Hegde 2008 (1) SCALE 421; Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal (1999) 3 SCC 35 Noor Aga v. State of Punjab2008 (9) SCALE 68 – referred to

1.4 Any person may as of right have access to the courts of justice. Section 9 CPC enables him to file a suit of civil nature excepting those, the cognizance whereof is expressly or by necessary implication barred. Or. 7 r. 11(d) is one of such provision which provides for rejection of plaint, if it is barred by any law. Or. 7 r. 11(d) being one of the exception, thus, must be strictly construed. Answer to the question whether the civil suit was barred on the day on which it was filed indisputably must be rendered in the negative. If as on the date of institution of the suit, plaint could not be rejected in terms of Or. 7 r. 11(d) whether its continuation would attract the principles of abuse of processes of court only because the accused was acquitted in the criminal proceeding is the question. [Paras 20, 21 and 22] [989-D-G]

1.5 Dismissal of a suit on the ground that it attracts the provisions of s. 12 CPC, keeping in view of the content of provisions of s. 11 thereof may now be considered. The principle of res-judicata as contained in s. 11 CPC is not attracted in this case. Even general principle of res-judicata would also not be attracted. A suit cannot be held to be barred only because the principle of estoppel subject to requisite pleading and proof may be applied. The said principle may not be held to be applicable only at a later stage of the suit. This principle would, therefore, be applicable, inter alia, if the suit is found to be barred by the principle of res judicata or by reason of the provisions of any other statute. [Paras 23 and 24] [989-G-H; 990-A-D]

1.6 It does not lay down that a judgment of the criminal court would be admissible in the civil court for its relevance is limited. [Para 25] [990- E]

Seth Ramdayal Jat v. Laxmi Prasad 2009 (5) SCALE 527 – referred to

1.7 The judgment of a criminal court in a civil procee-ding will only have limited application, viz., inter alia, for the purpose as to who was the accused and what was the result of the criminal proceedings. Any finding in a criminal proceeding by no stretch of imagination would be binding in a civil proceeding. [Paras 25 and 26] [990-E-F]

M.S. Sheriff & Anr. v. State of Madras & Ors. AIR 1954 SC 397 – referred to

1.8 If a primacy is given to a criminal proceeding, indisputably, the civil suit must be determined on its own keeping in view the evidence which has been brought on record before it and not in terms of the evidence brought in the criminal proceedings. [Para 27] [991-B]

K.G. Premshanker v. Inspector of Police and anr. (2002) 8 SCC 87; M/s. Karam Chand Ganga Prasad & Anr. Etc. v. Union of India & Ors. (1970) 3 SCC 694-referred to

1.9 If judgment of a civil court is not binding on a criminal court, it is incomprehensible that a judgment of a criminal court will be binding on a civil court. Section 43 of the Evidence Act categorically states that judgments, orders or decrees, other than those mentioned in ss. 40,41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant in some other provisions of the Act. [Para 29] [993-B-D]

Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr. (2005) 4 SCC 370; P. Swaroopa Rani v. M. Hari Narayana @ Hari Babu AIR 2008 SC 1884-referred to

1.10 The principles of res judicata are not applicable in the facts and circumstances of the instant case. The impugned judgment cannot be sustained and is set aside. [Paras 32 and 33] [994-B-C]

Supreme Court on Possession of fruits of crime in murder case

A decision on inference arising from possession of fruits of crime – soon after the occurence, in absence of reasonable explanation may lead to inference of complicity, also a preposition on Life Sentence means incarceration till last breathe and not 14 or 20 years.

The possession of the fruits of the crime recently after it has been committed, affords a strong and reasonable ground for the presumption that the party in whose possession they are found was the real offender, unless he can account for such possession in some way consistent with his innocence. It is founded on the obvious principle that if such possession had been lawfully acquired, that party would be able to give an account of the manner in which it was obtained. His unwillingness or inability to afford any reasonable explanation is regarded as amounting to strong, self inculpatory evidence. If the party gives a reasonable explanation as to how he obtained it, the courts will be justified in not drawing the presumption of guilt. The force of this rule of presumption depends upon the recency of the possession as related to the crime and that if the interval of time be considerable, the presumption is weakened and more especially if the goods are of such kind as in the ordinary course of such things frequently change hands. It is not possible to fix any precise period. This Court has drawn similar presumption of murder and robbery in series of decisions especially when the accused was found in possession of these incriminating articles and was not in a position to give any reasonable explanation. Earabhadrappa @ Krishnappa vs. State of Karnataka (1983) 2 SCC 330 was a case where the deceased Bachamma was throttled to death and the appellant was taken into custody and gold ornaments and other articles were recovered at his instance.

SC

Shri Bhagwan vs State Of Rajasthan on 10 May, 2001
Author: K Balakris,hnan
Bench: M B Shah, K Balakrishnan

CASE NO.:

Appeal (crl.) 242 of 2000

PETITIONER:

SHRI BHAGWAN

Vs.

RESPONDENT:

STATE OF RAJASTHAN

DATE OF JUDGMENT: 10/05/2001

BENCH:

M B Shah & K.G. Balakrishnan

JUDGMENT:

K.G. BALAKRISHNAN, J.

The facts in this criminal appeal disclose acts of unparalleled evil and barbarity as five persons of a family were battered to death without mercy by a young culprit aged about 20 years.

PW-17 Shiv Pratap, his wife, three daughters and aged parents were residing in a house at Bidasar. The marriage of the eldest daughter of Shiv Pratap was fixed to be held on 20.2.1994. In order to purchase some articles for the marriage, Shiv Pratap and his wife Bhanwari had left for Jaipur on 14th December, 1993. They came back to Bidasar from Jaipur on 17th December, 1993 at about 9.30 PM. On reaching the house, they found the outer door of the house open and the inside room was found bolted from within. PW-17 knocked at the door in vain and after sometime he scaled over the wall and gained entry into the room. He found his parents lying dead with multiple injuries. PW-17 and his wife then went to the room of their daughters. That room was found locked from outside. PW-17 broke open the lock and found dead bodies of his three daughters. Various blood-stained articles were found strewn in the room. PW-17 used to peg the bag containing gold and silver jewellery of the shop. That bag was also found missing. Shocked at the incident, they made a hue and cry. The brother of PW-17 who was staying nearby came to the house. Some neighbours also came there in the meanwhile and saw the ghastly incident. By about 9.45 P.M., PW-17 gave the P-8 statement before the Station House Officer of Police Station Chhapar ( PW-23). PW-23 registered a case and immediately visited the place of occurrence. He recorded the statement of Bhanwari (PW-1); Murlidhar (PW-2) and also the further statement of Shiv Pratap (PW-17). On the next day, he took various photographs and conducted inquest of the dead bodies of all the five deceased persons. The various articles, including clothes found lying in the house, were recovered. Many of these articles were found blood-stained.

In his statement, PW-2, Murlidhar mentioned that on the evening of 14th December, 1993, he had seen the deceased Jora Ram, the father of Shiv Pratap, at about 6.00 PM going to his house after closing the shop and the appellant, Shri Bhagwan was also accompanying him. PW-2 further stated that Shri Bhagwan was known to him previously as he had worked in the shop of Shiv Pratap for about 8 to 10 months. He also stated that he saw the appellant and Jora Ram entering the house of Shiv Pratap. Based on this information, appellant Shri Bhagwan was arrested on the night of 18th December, 1993 and the investigation of the case was taken over by PW-24 . He too visited the place of occurrence and collected various articles from there. A broken iron ‘Kunta’, a wooden Pestle and an iron scissors were also recovered from the scene of occurrence and all these articles were stained with blood. The appellant was interrogated and based on his statement, an axe was recovered from the water tank located on the terrace of the house of Shiv Pratap. During the course of further investigation, the appellant gave a statement regarding the place of concealment of golden jewellery and other articles taken away from the house of Shiv Pratap. Appellant’s brother-in-law (Bahnoi) Ramu Ram was a resident of Sardar Shahar. The appellant led the police party to the house of Ramu Ram and from his house a bag containing jewellery and other articles were seized under Ex. P-83. These articles included one gold finger-ring, gold ear tops and nose tops, white pearls, etc. All these articles were later identified by Shiv Pratap as gold ornaments belonging to his mother and daughters. From the house of Ramu Ram, a small tobacco box was recovered which contained 12 copper pieces and an envelope of ‘Kumkum Patri’ addressed to Shiv Pratap, Bidasar, and the sender’s name was one Manak Chand Soni (PW-10). Manak Chand was examined and he deposed that this invitation had been sent by him to Shiv Pratap on the occasion of the marriage of his daughter which was on 10th December, 1993.

Appellant, Shri Bhagwan also gave a statement to the effect that while he was travelling in a bus, he had thrown away the shirt worn by him at the time of occurrence, near a place three kilometers away from Sujangarh. The appellant led the police party to that place and the said shirt was recovered from the bushes near the place where the appellant had stated to have thrown the same. This shirt was blood-stained and it bore the label of 786 J.K. Tailors, Subzi Mandi, S.R.D.R. On the shirt, number 427 was found marked. The investigation officer later visited the said shop of J.K. Tailors and questioned the owner of the shop, Zafar Hussain (PW-18). PW-18 stated that he had stitched the shirt for the appellant and he had also recorded the name of the appellant and the measurements in the register. Exh. P-48 is the register maintained by him and as against serial number 427, the name of appellant, Shri Bhagwan Soni was found written.

The appellant was tried for offences under Section 302 and 392 read with Section 397 IPC and was found guilty. For the offences under Section 392 and 397 IPC, he was sentenced to undergo R.I. for seven years and to pay a fine of Rs.200/-. For the offence under Section 302 IPC, the appellant was sentenced to death and to pay a fine of Rs.200/- by the Sessions Judge. This was challenged in appeal and the Division Bench of the Rajasthan High Court confirmed the conviction and sentence of the appellant.

On behalf of the appellant, Dr. Shyamla Pappu, learned Senior Advocate (A.C.) very ably argued the case. It was pointed out by her that the evidence adduced by the prosecution was not sufficient to find the guilt for the offences he had been charged with. It was contended that various incriminating circumstances relied on by the court are not sufficient to draw an inference of guilt of the appellant and the chain of circumstances was not cogently and firmly established and these circumstances have no definite tendency to unerringly point the guilt of the accused. It was also contended that in a case of circumstantial evidence, the chain of circumstances should be so complete that there is no escape from the conclusion that in all probability the crime was committed by the accused and none else.

The counsel for the appellant also argued that in the Exh. P-8 Statement given by PW-17 Shiv Pratap, the name of the appellant was not mentioned, though he was accompanied by PW-2 Murlidhar, who is alleged to have seen the appellant along with one of the deceased prior to the incident. It may be noted that PW-17 must have been under severe psychic trauma at the time of giving the Exh.P-8 Statement before the police and naturally he did not mention the name of the appellant to PW- 23 who recorded his statement. PW-23 himself recorded the statement of PW-2 immediately thereafter and in that statement the name of the appellant was mentioned as the person last seen with one of the deceased. Another contention urged by appellant’s counsel is that in the instant case series of injuries had been caused to the deceased persons and sticks, wooden pestle, broken handle of axe, scissors and ‘kunta’ were alleged to have been used and it was argued that from these facts, it is possibe that there must have been more than one assailant and therefore, the prosecution suppressed the real facts and the appellant is entitled to the benefit of doubt. All the articles allegedly used by appellant as weapons of offence are things which might have been collected from the house itself and according to the prosecution, the appellant was seen with deceased Jora Ram in the evening and in all probability he must have spent the night in the house of Shiv Pratap. The incident might have happened in the dead of the night and that being a winter season, it is quite possible that attention of the neighbours might not have been attracted. The fact that household items were used as weapons of offence rules out the possibility of the presence of any outsider. Moreover, it is also not possible to infer anything from the nature of injuries as to how many assailants were involved. It is quite reasonable and probable that one assailant alone can cause so much of injuries especially during the night when the victims might have been in deep slumber.

The counsel for the appellant also raised serious doubts regarding the various recoveries effected at the instance of the appellant, but we do not find any reason to disbelieve the evidence adduced by the prosecution as there is further corroborative evidence to support the recoveries. The articles were recovered from the close relative of the appellant and they were identified by PW-17. It is also established beyond doubt that the recovered blood stained shirt belonged to the appellant.

Having regard to the various facts, we do not find any reason to suspect the guilt of the accused as it is proved that the appellant was seen with one of the deceased Jora Ram in the evening of 14th November, 1993 and the appellant had an acquaintance with the family members of the deceased as he had already worked as an apprentice in the shop of PW-17 to learn the trade of goldsmithy. PW-17 deposed that the appellant was sent away from the shop as he had committed some minor gold thefts.

It is also relevant to note that the appellant had some injuries at the time of his arrest. These injuries are of minor nature, but even then the appellant could not give any satisfactory explanation with regard thereto. The recovery of various articles at the instance of the appellant, that too immediately after the incident, goes a long way in proving the guilt of the appellant.

The possession of the fruits of the crime recently after it has been committed, affords a strong and reasonable ground for the presumption that the party in whose possession they are found was the real offender, unless he can account for such possession in some way consistent with his innocence. It is founded on the obvious principle that if such possession had been lawfully acquired, that party would be able to give an account of the manner in which it was obtained. His unwillingness or inability to afford any reasonable explanation is regarded as amounting to strong, self inculpatory evidence. If the party gives a reasonable explanation as to how he obtained it, the courts will be justified in not drawing the presumption of guilt. The force of this rule of presumption depends upon the recency of the possession as related to the crime and that if the interval of time be considerable, the presumption is weakened and more especially if the goods are of such kind as in the ordinary course of such things frequently change hands. It is not possible to fix any precise period. This Court has drawn similar presumption of murder and robbery in series of decisions especially when the accused was found in possession of these incriminating articles and was not in a position to give any reasonable explanation. Earabhadrappa @ Krishnappa vs. State of Karnataka (1983) 2 SCC 330 was a case where the deceased Bachamma was throttled to death and the appellant was taken into custody and gold ornaments and other articles were recovered at his instance. This Court observed:

This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under Illustration (a) to Section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction.

In another case reported in (1997) 10 SCC 130 [Mukund vs. State of M.P.], the prosecution case was that in the night intervening 17.1.1994 and 18.1.1994, the appellants trespassed into the residential house of one Anuj Prasad Dubey, committed murders of his wife and their two children and looted their ornaments and other valuable articles. On the next night, the appellants were arrested and interrogated. Pursuant to the statement made by one of the accused, gold and silver ornaments and other articles were recovered. This court, relying on an earlier decision reported in Gulab Chand vs. State of M.P. (1995) 3 SCC 574, observed :

“If in a given case — as the present one — the prosecution can successfully prove that the offences of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered, a court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder.”

In the instant case, the appellant could not give an explanation as to how he came into possession of various gold ornaments and other articles belonging to Shiv Pratap and the members of his family. The appellant also could not give any reasonable explanation how he sustained injuries on his body and how his shirt became blood-stained. In the facts and circumstances, it is a fit case where the presumption under Illustration (a) to Section 114 of the Evidence Act could be drawn that the appellant committed the murders and the robbery. The courts below have rightly held the appellant guilty of the offences charged against him.

As regards the question of sentence, the counsel for the appellant submitted that the appellant was a youngster aged 20 at the time of crime and ever since the imposition of death penalty on him he has been under devastating and degrading fear that is imposed on the condemned and that appellant must have been under intense mental suffering that is inevitably associated with confinement under sentence of death. It is submitted that these factors had been taken note of by this Court as relevant mitigating factors to commute the sentence of death to life imprisonment.

Of course, the nature of the crime committed by the appellant was so horrendous and exceptionally cruel and sadistic. However, we are inclined to take a lenient view having regard to the various facts and circumstances of the case. In dealing with criminal matters where death sentence is prescribed in law as the punishment for the crime, the courts are required to answer new challenges as the object has to be not only to protect the society at large, but impose appropriate sentence lest there should be a tendency to undermine the public confidence in the criminal justice delivery system.

In A. Devendran v. State of Tamil Nadu [(1997) 11 SCC 720], while considering the question of imposition of death penalty, this Court observed:- (in para 26)

Bearing in mind the ratio of the aforesaid cases it may be seen that since the evidence of an approver has been taken out of consideration the conviction of the appellant Devendran under Section 302 has been upheld on the basis of the evidence of PW2, PW5 and the recovery of the pistol which was used for the commission of murder from the house of the said Devendran as well as the recoveries of ornaments and other jewelleries belonging to the informant recovered from the house of Devendran on the basis of his statement, while in custody and those jewelleries being identified by PW4. The aforesaid evidence by no stretch of imagination brings the case in hand to be one of the rarest of rare cases where the extreme penalty of death can be awarded.

Similar is the position in the present case. The circumstantial evidence discussed above, even though held to be reliable for convicting the accused, we do not think it to be one of the rarest of rare cases warranting death sentence.

Hence, what would be the appropriate punishment?

Crimes, like the one before us, cannot be looked upon with equanimity because they tend to destroy ones faith in all that is good in life. A young man was given opportunity to learn gold-smithery. He was once sent away for alleged act of theft. Yet again, on the day of incident, he was permitted to accompany the deceased old man and as per the evidence, he accompanied the deceased in his house. The reward of that kindness is murder of old man and his wife alongwith three daughters including one whose marriage was fixed after two months. Hence, even though we reduce the death penalty, we think that punishment should be sufficient so as to have deterrent effect as well as no further chance to the accused for relapsing into the crime and becoming danger to the Society.

Section 57 IPC provides that in calculating fractions of terms of punishment, imprisonment for life is to be reckoned as equivalent to the imprisonment for twenty years. In our view, considering the heinous barbaric offence committed by the accused, in no set of circumstances accused should be released before completion of 20 years of imprisonment. This Court in Dalbir Singh and others v. State of Punjab [(1979) 3 SCC 745] considered the question that in case where sentence of death is reduced to life imprisonment, for how many years accused should be detained in prison. The Court in paragraph 14 held thus:- 14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad case. Taking the cue from the English legislation on abolition, we may suggest that life imprisonment which strictly means imprisonment for the whole of the mans life, but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder.

(Emphasis added)

In case of Subash Chander v. Krishan Lal & Ors. [2001 (3) SCALE 130], the said principle is followed by this Court and it was ordered that accused shall be incarcerated for the remainder of his life and that he shall not be let loose upon the society as he is a potential danger.

Question may arisewhether in view of the provision of Section 433(b) read with Section 433-A Cr.P.C. accused should be released on completion of 14 years of imprisonment? For this purpose, we would make it clear that under Section 433 (b) enables the appropriate Government to commute the sentence of imprisonment for life, for imprisonment of a term not exceeding 14 years or for fine. Under Section 433-A, there is an embargo on that power by providing that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided under the law, such person is not to be released from prison unless he had served at least fourteen years of imprisonment. This question is considered by various decisions rendered by this Court and by the Privy Council and it has been reiterated that a sentence of imprisonment for life imposed prima facie be treated as imprisonment for the whole of the remaining period of the convicted persons natural life. It is also established law that rules framed under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life. This Court in State of Madhya Pradesh v. Ratan Singh and others [(1976) 3 SCC 470] in paragraphs 4 and 9 held thus:-

4. As regards the first point, namely, that the prisoner could be released automatically on the expiry of 20 years under the Punjab Jail Manual or the Rules framed under the Prisons Act, the matter is no longer res integra and stands concluded by a decision of this Court in Gopal Vinayak Godse v. State of Maharashtra [(1961) 3 SCR 440], where the Court, following a decision of the Privy Council in Pandit Kishori Lal v. King Emperor [(LR 72 IA 1 : AIR 1945 PC 64] observed as follows:

Under that section, a person transported for life or any other term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term.

If so, the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government can be automatically treated as one for a definite period. No such provision is found in the Indian Penal Code of Criminal Procedure or the Prisons Act.

* * * * *

A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted persons natural life.

The Court further observed thus:

But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisons Act confers a power on the State Government to make rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act. . . . Under the said rules the orders of an appropriate Government under Section 401, Criminal Procedure Code, are a pre-requisite for a release. No other rule has been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions. The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.

The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under Section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release.

It is, therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the rules. This Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under Section 401 of the Code of Criminal Procedure and neither Section 57 of the Indian Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the court under the Indian Penal Code. In other words, this Court has clearly held that a sentence for life would ensure till the lifetime of the accused as it is not possible to fix a particular period the prisoners death and remissions given under the Rules could not be regarded as a substitute for a sentence of transportation for life.

In Maru Ram v. Union of India [(1981) 1 SCC 107], Constitutional Bench of this Court reiterated the aforesaid position and observed that the inevitable conclusion is that since in Section 433-A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release. Further, in Laxman Naskar (LIFE CONVICT) v. State of W.B. and another [(2000) 7 SCC 626], after referring to the decision of the case of Gopal Vinayak Godse v. State of Maharashtra [(1961) 3 SCR 440], the Court reiterated that sentence for imprisonment for life ordinarily means imprisonment for the whole of the remaining period of the convicted persons natural life; that a convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitle the convict to be released automatically before the full life term is served. It was observed that though under the relevant Rules a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose.

Therefore, in the interest of justice, we commute the death sentence imposed upon the appellant and direct that the appellant shall undergo the sentence of imprisonment for life. We further direct that the appellant shall not be released from the prison unless he had served out at least 20 years of imprisonment including the period already undergone by the appellant. As regards offences under Sections 392 & 397 IPC, we confirm the conviction of the appellant and no separate sentence is awarded.

With the above directions and modification in the sentence, the appeal is disposed of.

Tukaram v. State of Maharashtra 1979 SC

Largely hailed as a rare example of judicial insensitivity to a rape victim/gender outrage – the judgment paved path for various amendments in rape related laws – especially those catering to situations on dominance where a person uses his official/superior position to obtain advantage (see S.376A to D) also introduced was S.114A which raised a rebuttable presumption of no consent’ on the ipse dixit of the girl and the burden to prove consent on the defence, in the fitness of things was introduced. 
Supreme Court of India
Tuka Ram And Anr vs State Of Maharashtra on 15 September, 1978
Equivalent citations: 1979 AIR 185, 1979 SCR (1) 810
Bench: Koshal, A.D.

PETITIONER:

TUKA RAM AND ANR.

Vs.

RESPONDENT:

STATE OF MAHARASHTRA

DATE OF JUDGMENT15/09/1978

BENCH:

KOSHAL, A.D.

BENCH:

KOSHAL, A.D.

SINGH, JASWANT

KAILASAM, P.S.

CITATION:

1979 AIR 185 1979 SCR (1) 810

1979 SCC (2) 143

ACT:

Indian Penal Code Sec. 375-Rape-What is the meaning of without consent-Obtaining consent by putting fear of death or hurt-Criminal trial-Onus is on prosecution to prove all the ingredients of an offence.

HEADNOTE:

The prosecution alleged that appellant No. 1, the Police Head Constable and appellant No. 2 Police Constable attached to Desai Gunj Police Station raped Mathura (P.W. 1) in the police station. Mathura’s parents died when she was a child and she was living with her brother, Gama. Both of them worked as labourers to earn a living. Mathura used to go to the house of Nunshi for work and during the course of her visits to that house she came in contact with Ashok who was the sister’s son of Nunshi. The contact developed into an intimacy so that Ashok and Mathura decided to become husband and wife.

On 26th of March, 1972 Gama lodged a report at the police station alleging that Mathura had been kidnapped by Nunshi, her husband Laxman and Ashok. The report was recorded by Head Constable Baburao, at whose instance all the three persons complained against as well as Mathura were brought to the police station at about 9 p.m. and the statements of Ashok and Mathura were recorded. By that time, it was 10.30 p.m. and Baburao asked all the persons to leave with a direction to Gama to bring a copy of the entry regarding the birth date of Mathura. After Baburao left Mathura, Nunshi and Gama and Ashok started to leave the police station. The appellants, however, asked Mathura to wait at the police station and told her companions to move out. The direction was complied with.

The case of the prosecution is that immediately thereafter Ganpat, appellant No. 1, took Mathura into a latrine raped her and thereafter dragged her to a Chhapri on the back side and raped her again. Thereafter, appellant No. 2 fondled with her private parts but could not rape her because he was in a highly intoxicated condition. Nunshi, Gama and Ashok who were waiting outside the police station for Mathura grew suspicious. They, therefore shouted and attracted a crowd. Thereafter, a complaint was lodged. Mathura was examined by a doctor who found that she had no injury on her person. Her hymen revealed old ruptures. The vagina admitted two fingers easily. The age of the girl was estimated by the doctor to be between 14 and 16 years. The Chemical Examiner did not find the traces of semen in the pubic hair and vaginal-smear slides. The presence of semen was, however, detected on the girl’s clothes.

The Sessions Judge found that there was no satisfactory evidence to prove that Mathura was below 16 years of age on the date of occurrence. He held that Mathura was “a shocking liar” whose testimony “is riddled with falsehood and improbabilities”. The Court came to the conclusion that she had sexual

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intercourse while at the police station but rape had not been proved and that she was habituated to sexual inter- course, but finding that Nunshi and Ashok would get angry with her, she had to sound virtuous before them. Really speaking, she would have surrendered her body to the Constable.

6. The District Judge, therefore, acquitted the appellants. The High Court reversed the order of acquittal. The High Court found that the sexual intercourse was forcible and amounted to rape. Since both the accused were strangers to Mathura, it was highly improbable that Mathura would make any overtures or invite the accused to satisfy her sexual desire. It is possible that a girl who was involved in a complaint filed by her brother would make such overtures or advances. However the initiative must have come from the accused and if such initiative came from the accused, she could not have resisted the same. About appellant Tuka Ram, the Court believed that he had not made any attempt to rape the girl but took her word for granted insofar as he was alleged to have fondled her private parts after the act of sexual intercourse by Ganpat appellant.

7. In an appeal by special leave, the appellant contended that :-

(1) there is no direct evidence about the nature of the consent of the girl to the alleged act of sexual intercourse. Therefore, it had to be inferred from the available circumstances and it could not be deduced from those circumstances that the girl had been subjected to or was under any fear or compulsion as would justify an inference of any “passive submission.”

(2) The alleged intercourse was a peaceful affair and the story of stiff resistance is all false.

(3) The averments of the girl that she had shouted loudly is false.

(4) The reasoning of the High Court that the girl must have submitted to sexual intercourse because of the fear does not amount to consent.

Secondly, the High Court lost sight of the fact that Mathura and Gama had started to leave the police station and the case is that at that time Ganpat caught her. Allowing the appeal, the Court

^

HELD : 1. The onus is always on the prosecution to prove affirmatively each ingredient of the offence. It was therefore, incumbent on the prosecution to prove all the ingredients of Section 375 of the Indian Penal Code. The High Court has not given a finding that the consent of the girl was obtained by putting her in a state of fear of death or of hurt. Therefore, the third clause of section 375 will not apply. There could be no fear because the girl was taken away by Ganpat right from amongst her near and dear ones. The circumstantial evidence available is not only capable of being construed in a way different from that adopted by the High Court but actually derogates in no uncertain measure from the inference drawn by it. [817G-H, 818A, G-H,819A] Secondly, the intercourse in question is not proved to amount rape and that no offence is brought home to appellant Ganpat. As far as Tuka Ram is concerned, the girl has made serious allegations against Tuka Ram in the First 812

Information Report. She went back on these allegations at the Trial. The presence of Tuka Ram at the police station is not inculpatory and is capable of more explanations than one. The appellants were acquitted. [819C-E]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 64 of 1977.

Appeal by Special Leave from the Judgment and Order dated 12th/13th December, 1978 of the Bombay High Court (Nagpur Bench) in Criminal Appeal No. 193/74. M. N. Phadke, S. V. Deshpande, V. M. Phadke and N. M. Ghatate for the Appellants.

H. R. Khanna and M. N. Shroff for the Respondent. The Judgment of the Court was delivered by KOSHAL, J.-This appeal by special leave is directed against the judgment dated the 12th October 1976 of the High Court of Judicature at Bombay (Nagpur Bench) reversing a judgment of acquittal of the two appellants of an offence under section 376 read with section 34 of the Indian Penal Code recorded by the Sessions Judge, Chandrapur, on the 1st of June 1974, and convicting Tukaram, appellant No. 1, of an offence under section 354 of the Code and the second appellant named Ganpat of one under section 376 thereof. The sentences imposed by the High Court on the two appellants are rigorous imprisonment for a year and 5 years respectively.

2. Briefly stated, the prosecution case is this. Appellant No. 1, who is a Head Constable of police, was attached to the Desai Gunj police station in March, 1972 and so was appellant No. 2 who is a police constable. Mathura (P.W. 1) is the girl who is said to have been raped. Her parents died when she was a child and she is living with her brother, Gama (P.W. 3). Both of them worked as labourers to earn a living. Mathura (P. W. 1) used to go to the house of Nunshi (P.W. 2) for work and during the course of her visits to that house, came into contact with Ashok, who was the sister’s son of Nunshi (P.W. 2) and was residing with the latter. The contact developed into an intimacy so that Ashok and Mathura (P.W. 1) decided to become husband and wife.

On the 26th of March, 1972, Gama (P.W. 3) lodged report Ex-P8 at police station Desai Gunj alleging that Mathura (P.W. 1) had been kidnapped by Nunshi (P.W. 2), her husband Laxman and the said Ashok. The report was recorded by Head Constable Baburao (P.W. 8) at whose instance all the three persons complained against as well as Mathura (P.W. 1) were brought to the police station at

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about 9 p.m. and who recorded the statements of the two lovers. By then it was about 10-30 p.m. and Baburao (P.W. 8) told them to go after giving them a direction that Gama (P.W. 3) shall bring a copy of the entry regarding the birth of Mathura (P.W.1) recorded in the relevant register and himself left for his house as he had yet to take his evening meal. At that time the two appellants were present at the police station.

After Baburao (P.W. 8) had gone away, Mathura (P.W. 1), Nunshi (P.W. 2), Gama (P.W. 3) and Ashok started leaving the police station. The appellants, however, asked Mathura (P.W. 1) to wait at the police station and told her companions to move out. The direction was complied with. Immediately thereafter Ganpat appellant took Mathura (P.W.1) into a latrine situated at the rear of the main building, loosened her under-wear, lit a torch and stared at her private parts. He then dragged her to a chhapri which serves the main building as its back verandah. In the chhapri he felled her on the ground and raped her in spite of protests and stiff resistance on her part. He departed after satisfying his lust and then Tukaram appellant, who was seated on a cot nearby, came to the place where Mathura (P.W. 1) was and fondled her private parts. He also wanted to rape her but was unable to do so for the reason that he was in a highly intoxicated condition.

Nunshi (P.W.2), Gama (P.W. 3) and Ashok, who had been waiting outside the police station for Mathura (P.W.1) grew suspicious when they found the lights of the police station being turned off and its entrance door being closed from within. They went to the rear of the police station in order to find out what the matter was. No light was visible inside and when Nunshi (P.W. 2) shouted for Mathura (P.W. 1) there was no response. The noise attracted a crowd and some time later Tukaram appellant emerged from the rear of the police station and on an enquiry from Nunshi (P.W. 2) stated that the girl had already left. He himself went out and shortly afterwards Mathura (P.W. 1) also emerged from the rear of the police station and informed Nunshi (P.W. 2) and Gama (P.W. 3) that Ganpat had compelled her to undress herself and had raped her.

Nunshi (P.W. 2) took Mathura (P.W. 1) to Dr. Khume (P.W. 9) and the former told him that the girl was subjected to rape by a police constable and a Head Constable in police station Desai Gunj. The doctor told them to go to the police station and lodge a report there.

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A few persons brought Head Constable Baburao (P.W. 8) from his house. He found that the crowd had grown restive and was threatening to beat Ganpat appellant and also to burn down the police station. Baburao (P.W. 8), however, was successful in persuading the crowd to disperse and thereafter took down the statement (Ex. 5) of Mathura (P.W. 1) which was registered as the first information report. Mathura (P.W. 1) was examined by Dr. Kamal Shastrakar at 8 p.m. on the 27th of March 1972. The girl had no injury on her person. Her hymen revealed old ruptures. The vagina admitted two fingers easily. There was no matting of the pubic hair. The age of the girl was estimated by the doctor to be between 14 and 16 years. A sample of the public hair and two vaginal-smear slides were sent by the doctor in a sealed packet to the Chemical Examiner who found no traces of semen therein. Presence of semen was however detected on the girl’s clothes and the pyjama which was taken off the person of Ganpat appellant.

3. The learned Sessions Judge found that there was no satisfactory evidence to prove that Mathura was below 16 years of age on the date of the occurrence. He further held that she was “a shocking liar” whose testimony “is riddled with falsehood and improbabilities”. But he observed that “the farthest one can go into believing her and the corroborative circumstances, would be the conclusion that while at the Police Station she had sexual intercourse and that, in all probability, this was with accused No. 2.” He added however that there was a world of difference between “sexual intercourse” and “rape”, and that rape had not been proved in spite of the fact that the defence version which was a bare denial of the allegations of rape, could not be accepted at its face value. He further observed: “Finding Nunshi angry and knowing that Nunshi would suspect some thing fishy, she (Mathura) could not have very well admitted that of her own free will, she had surrendered her body to a Police Constable. The crowd included her lover Ashok, and she had to sound virtuous before him. This is why-this is a possibility-she might have invented the story of having been confined at the Police Station and raped by accused No.

2…………………………….. Mathura is habituated to sexual intercourse, as is clear from the testimony of Dr. Shastrakar, and accused No. 2 is no novice. He speaks of nightly discharges. This may be untrue, but there is no reason to exclude the possibility of his having stained his Paijamal with semen while having sexual intercourse with persons other than

815

Mathura. The seminal stains on Mathura can be similarly accounted for. She was after all living with Ashok and very much in love with him……………… ” and then concluded that the prosecution had failed to prove its case against the appellants.

4. The High Court took note of the various findings arrived at by the Learned Sessions Judge and then itself proceeded to sift the evidence bearing in mind the principle that a reversal of the acquittal would not be justified if the view taken by the trial court was reasonably possible, even though the High Court was inclined to take a different view of the facts. It agreed with the learned Sessions Judge in respect of his finding with regard to the age of Mathura (P.W. 1) but then held that the deposition of the girl that Ganpat appellant had had sexual intercourse with her was reliable, supported as it was by circumstantial evidence, especially that of the presence of stains of semen on the clothes of the girl and Ganpat appellant. The fact that semen was found neither on the public hair nor on the vaginal-smears taken from her person, was considered to be of no consequence by reason of the circumstance that the girl was examined by the lady doctor about 20 hours after the event, and of the probability that she had taken a bath in the, meantime. The High Court proceeded to observe that although the learned Sessions Judge was right in saying that there was a world of difference between sexual intercourse and rape, he erred in appreciating the difference between consent and “passive submission”. In coming to the conclusion that the sexual intercourse in question was forcible and amounted to rape, the High Court remarked: “Besides the circumstances that emerge from the oral evidence on the record, we have to see in what situation Mathura was at the material time. Both the accused were strangers to her. It is not the case of the defence that Mathura knew both these accused or any of them since before the time of occurrence. It is, therefore, indeed, highly improbable that Mathura on her part would make any overtures or invite the accused to satisfy her sexual desire. Indeed it is also not probable that a girl who was involved in a complaint filed by her brother would make such overtures or advances. The initiative must, therefore, have come from the accused and if such an initiative comes from the accused, indeed she could not have resisted the same on account of the situation in which she had found herself especially on account of a complaint filed by her brother against her which was pending enquiry at the very police station. If these circumstances are taken into consideration it would be clear that the initiative for sexual intercourse must have come from the

816

accused or any of them and she had to submit without any resistance…………… Mere passive or helpless surrender of the body and its resignation to the other’s lust induced by threats or fear cannot be equated with the desire or will, nor can furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition……………… On the other hand, taking advantage of the fact that Mathura was involved in a complaint filed by her brother and that she was alone at the police station at the dead hour of night, it is more probable that the initiative for satisfying the sexual desire must have proceeded from the accused, and that victim Mathura must not have been a willing party to the act of the sexual intercourse. Her subsequent conduct in making statement immediately not only to her relatives but also to the members of the crowd leave no manner of doubt that she was subjected to forcible sexual intercourse.” In relation to Tukaram appellant, the High Court did not believe that he had made any attempt to rape the girl but took her word for granted insofar as he was alleged to have fondled her private parts after the act of sexual intercourse by Ganpat appellant.

It was in these premises that the High Court convicted and sentenced the two appellants as aforesaid.

5. The main contention which has been raised before us on behalf of the appellants is that no direct evidence being available about the nature of the consent of the girl to the alleged act of sexual intercourse, the same had to be inferred from the available circumstances and that from those circumstances it could not be deduced that the girl had been subjected to or was under any fear or compulsion such as would justify an inference of any “passive submission”, and this contention appears to us to be well- based. As pointed out earlier, no marks of injury were found on the person of the girl after the incident and their absence goes a long way to indicate that the alleged intercourse was a peaceful affair, and that the story of a stiff resistance having been put up by the girl is all false. It is further clear that the averments on the part of the girl that she had been shouting loudly for help are also a tissue of lies. On these two points the learned Sessions Judge and the High Court also hold the same view. In coming to the conclusion that the consent of the girl was a case of “passive submission”, the High Court mainly relied on the circumstance that at the relevant time the girl was in the police station where she would feel helpless in the presence of the two appellants who were persons in authority and whose advances she could hardly repel all by herself and inferred that her submission to the

817

act of sexual intercourse must be regarded as the result of fear and, therefore, as no consent in the eye of law. This reasoning suffers from two errors. In the first place, it loses sight of the fact which was admitted by the girl in cross-examination and which has been thus described in the impugned judgement:

“She asserted that after Baburao had recorded her statement before the occurrence, she and Gama had started to leave the police station and were passing through the front door. While she was so passing, Ganpat caught her. She stated that she knew the name of accused No. 2 as Ganpat from Head Constable Baburao while giving her report Exh. 5. She stated that immediately after her hand was caught by Ganpat she cried out. However, she was not allowed to raise the cry when she was being taken to the latrine but was prevented from doing so. Even so, she had cried out loudly. She stated that she had raised alarm even when the underwear was loosened at the latrine and also when Ganpat was looking at her private parts with the aid of torch. She stated that the underwear was not loosened by her.”

Now the cries and the alarm are, of course, a concoction on her part but then there is no reason to disbelieve her assertion that after Baburao (P.W. 8) had recorded her statement, she and Gama had. started leaving the police station and were passing through the entrance door when Ganpat appellant caught hold of her and took her away to the latrine. And if that be so, it would be preposterous to suggest that although she was in the company of her brother (and also perhaps of Ashok and her aunt Nunshi) and had practically left the police station, she would be so over-awed by the fact of the appellants being persons in authority or the circumstance that she was just emerging from a police station that she would make no attempt at all to resist. On the other hand, her natural impulse would be to shake of the hand that caught her and cry out for help even before she noticed who her molester was. Her failure to appeal to her companions who were no others than her brother, her aunt and her lover, and her conduct in meekly following Ganpat appellant and allowing him to have his way with her to the extent of satisfying his lust in full, makes us feel that the consent in question was not a consent which could be brushed aside as “passive submission”.

Secondly, it has to be borne in mind that the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and that such onus never shifts. It was, therefore, incumbent on it to make out that all the ingredients of section 818

375 of the Indian Penal Code were present in the case of the sexual intercourse attributed to Ganpat appellant. That section lays down:

375. `A man is said to commit “rape” who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:

First.-Against her will.

Secondly.-Without her consent.

Thirdly.-With her consent, when her consent has been obtained by putting her in fear of death, or of hurt. Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.-With or without her consent, when she is under sixteen years of age.

Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception.-Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.’

The section itself states in clauses Thirdly and Fourthly as to when a consent would not be a consent within the meaning of clause Secondly. For the proposition that the requisite consent was lacking in the present case, reliance on behalf of the State can be placed only on clause Thirdly so that it would have to be shown that the girl had been put in fear of death or hurt and that that was the reason for her consent. To this aspect of the matter the High Court was perhaps alive when it talked of “passive submission” but then in holding that the circumstances available in the present case make out a case of fear on the part of the girl, it did not give a finding that such fear was shown to be that of death or hurt, and in the absence of such a finding, the alleged fear would not vitiate the consent. Further, for circumstantial evidence to be used in order to prove an ingredient of an offence, it has to be such that it leads to no reasonable inference other than that of guilt, We have already pointed out that the fear which clause Thirdly of section 375 speaks of is negatived by the circumstance that the girl is said to have been taken away by Ganpat right from amongst her near and dear ones at a point of time when they were, all leaving the police station 819

together and were crossing the entrance gate to emerge out of it. The circumstantial evidence available, therefore, is not only capable of being construed in a way different from that adopted by the High Court but actually derogates in no uncertain measure from the inference drawn by it.

6. In view of what we have said above, we conclude that the sexual intercourse in question is not proved to amount to rape and that no offence is brought home to Ganpat appellant.

7. The only allegation found by the High Court to have been brought home to Tukaram appellant is that he fondled the private parts of the girl after Ganpat had left her. The High Court itself has taken note of the fact that in the first information report (Ex. 5) the girl had made against Tukaram serious allegations on which she had gone back at the trial and the acts covered by. Which she attributed in her deposition to Ganpat instead. Those allegations were that Tukaram who had caught hold of her in the first instance, had taken her to the latrine in the rear of the main building, had lit a torch and had stared at her private parts in the torch-light. Now if the girl could alter her position in regard to these serious allegations at will, where is the assurance that her word is truthful in relation to what she now says about Tukaram ? The High Court appears to have been influenced by the fact that Tukaram was present at the police station when the incident took place and that he left it after the incident. This circumstance, in our opinion, is not inculpatory and is cable of more explanations than one. We do not, therefore, propose to take the girl at her word in relation to Tukaram appellant and hold that the charge remains wholly unproved against him.

8. In the result, the appeal succeeds and is accepted. The judgment of the High Court is reversed and the conviction recorded against as well as the sentences imposed upon the appellants by it are set aside.

P.M.P. Appeal allowed.

820

The difference between Consent & Submission in cases of Rape

Punjab-Haryana High Court
Rao Harnarain Singh Sheoji Singh … vs The State on 12 August, 1957
Equivalent citations: AIR 1958 P H 123, 1958 CriLJ 563
Author: T Chand
Bench: T Chand

ORDER

Tek Chand, J.

1. This is an application under Section 498, Criminal Procedure Code, for release of the petitioners on bail pending their trial for offence said to have committed under Sections 302. 376, 109 and 201, Indian Penal Code. The applicants are (1) Rao Harnarain Singh, an Advocate and an Additional Public Prosecutor at Gurgaon, (2) Ch. Mauji Ram Deputy Superintendent Jail, Gurgaon, (3) Balbir Singh and (4) Sanwat Singh. The salient facts of the case are that Kalu Ram accused, husband of Mst. Surti, used to live in one of the rooms in the house of accused Rao Harnarain Singh.

Mst. Surti is said to be an attractive girl of 19 years. On the evening of 18th of April 1957 Rao Harnarain Singh was entertaining Ch. Mauji Ram, Deputy Superintendent Jail, Gurgaon, on the eve of his transfer. Rao Harnarain Singh is said to have required Kalu Hum to send Mst. Surti for the carnal pleasures of himself and his guests. Kalu Ram, who had a very humble station in life, after initial protasts, was induced to provide his wife to satisfy the carnal lust of Rao Harnarain Singh and his guests.

It is said that the girl protested vehemently against this outrageous demand, but under pressure of her husband, she was induced to surrender her chastity. It is alleged that three accused persons Rao Harnarain Singb, Ch. Mauji Ram and Balbir Singh ravished her during the night & she died almost immediately. It is also alleged that her shrieks were heard by some Advocates living in the neighbourhood. It is then stated that at the instance of Rao Harnarain Singh, Dr. Ram Parshad, Assistant Surgeon, was sent for in order to ascertain whether the girl had merely swooned or died.

Another physician Dr. Gulati, was also summoned and both of thorn were of the view, that she was dead but they could not assign the cause of her death. In the early hours of the morning of 19th April 1957 she was cremated. The prosecution contention is that the cremation was unduly hurried, without the performance of the usual funeral rites and with a view to destroy proof of violence done to her. The prosecution then alleges that soon after the hurried cremation of the dead body of Mst. Surti Rao Harnarain Singh left Gurgaon on 19th of April 1957 and was not to be seen there for several days.

Ch. Mauji Ram also left Gurgaon in the early hours of the morning of 19th of April 1957. It is also alleged that before her cremation, clothes worn by Mst. Surti at the time had been removed and they have been found by an expert to be smeared with stains of seminal fluid and human blood. Kalu Ram, the husband of Mst. Surti, made a confession giving full details as to the manner in which pressure was put on him for production of his wife for the satisfaction of the carnal pleasures of Rao Harnarain Singh and his guests.

This confession had been retracted after a lapse of a month and a half of its recording. The prosecution contends that Kalu Ram was made to resile from the confession under influence and coercion emanating from accused Rao Harnarain Singh and Mauji Ram, The prosecution also submitted that Babu Ram, who served Rao Harnarain Singh and his guests at the dinner, was a witness to the earlier part of the entertainment and saw Rao Harnarain Singh, Mauji Ram and Balbir Singh going inside a room with the girl and he also heard their talk when they came out after she had expired.

Out of the applicants Balbir Singh was proclaimed as an absconder and was apprehended after his property had been attached under the provisions of Criminal Procedure Code. Bail Application was rejected by the Committing Magistrate and the Additional Sessions Judge also declined to release the accused on bail. This Court has therefore been moved under Section 498, Criminal Procedure Code, praying that the petitioners be released on bail pending the decision of the case.

2. On behalf of the accused it is stated that a report was made by the local station house Officer to the Superintendent of Police of Gurgaon on 26th of April, 1957 that no tfrime had been committed. It is then stated that about three weeks after the cremation of the girl a rumour went round in Gurgaon that Mst. Surti had died an unnatural death and this rumour was featured by a local newspaper. A formal report was then lodged by the Superintendent of Police on 11th of May, 1957.

In that report he stated that on 26th of April. 1957 station House Officer Sadar Gurgaon brought to his notice an incident wherein a woman was reported to have died on the night of 18th/19th of April 1957 and that her body was cremated in haste early in the morning without performance of customary obsequial rites. The report then stated that although no formal or informal complaint or report had been lodged with the police and since the matter was likely to attract public attention he ordered Shri Ram Partap Deputy Superintendent of Police to Institute immediate inquiries into the Incident.

The report then mentioned that while the matter was still under inquiry with the Deputy Superintendent of Police, the Superintendent of Police found a large number of different rumours in circulation as to the sinister and suspicious manner in which the girl met her death. The Superintendent of Police ordered that a case under Section 302, Indian Penal Code, should be registered and investigated by the Inspector of Police, C. I. A, Gurgaon, under his direct supervision, and that the inquiry entrusted to Shri Ram Partap, Deputy Superintendent of Police, should be discontinued forthwith and all the papers transferred to his file. On 13th of May 1957 the Deputy Superintendent of Police, C. I. D. started investigation. On 18th of May, 1957 Rao Harnarain Singh was taken into custody and Mauji Ram was arrested on 28th of May, 1957. Balbir Singh accused was arrested on 26th of June, 1957. In this case 30th of July 1957 was the date fixed for recording the evidence of prosecution witnesses and on that day a transfer application was moved on behalf of the accused in this Court which has not yet been disposed of except that the High Court declined to stay proceedings in the trial Court. I am informed that 12th of August 1957 is the next date of hearing in this case before the trial Court.

3. Mr. Bhagat Singh Chawla has pressed for enlargement of the accused on bail on several grounds. He said that his clients deserved to be released on bail, as there did not appear any reasonable ground for holding that they had been gulity of an offence punishable with death or with imprisonment for life.

In the absence of Corpus delict he said it was not possible on the allegations in this case to hold any one of the accused to be guilty of murder, especially when there is no eye-witness to testify to the murder and no proof being available that the body of the girl which was cremated in the early hours shortly after the occurrence bore any marks of violence, suggestive of commission of offences of which they have been accused.

4. He also contended that on the allegations made in this case commission of offence of rape on the girl could not be established. According to him the girl was produced for the satisfaction of the carnal desires of Rao Harnarain Singh and his guests, with the consent of the girl’s husband Kalu Ram. He further urged that the girl was also a consenting party and she surrendered her body to the three persons willingly and with the approval and at the bidding of her husband.

5. Mr. Bhagat Singh, also suggested that she was a grown up girl of 19 years, and a married woman, and death could not result in consequence of sexual intercourse with her by three persons. Her death, he thought, was fortuitous and probably due to sudden failure of the heart. In his words, Rao Harnarain Singh and his guests were having “a good time” and had gathered there for a little bit of “gaiety and enjoyment”.

He also said that his two clients were “respectable persons”, one being an Advocate and the other a Deputy Superintendent of Jail, and for this reason also deserved to be set at large. He lastly urged that the gathering of three accused in the evening and their act in ravishing Mst. Surti, young wife of Kalu Ram, might be morally reprehensible but it was not such an act which should stand in the way of the accused, from being released on bail.

6. From such material as was referred to during the course of arguments of the counsel, I cannot accept the suggestion of S. Bhagat Singh Chawla that Kalu Ram, the husband of the girl, was a pander who had willingly agreed to minister to the baser passions of his clients. I cannot even pursuade myself to the view that his wife was a dissolute young woman who willingly lent her body to her ravishers to gratify her own lustful propensities;

The confession of Kalu Ram which was read out and which was later retracted after a month and a half, does not suggest consent on the part of either Kalu Ram or Mst Surti his wife. Kalu Ram appears to have protested as vehemently as he could dare, having regard to his humble station in life, to the suggestion made by accused Rao Harnarain Singh, that he should send his wife for carnal connection with himself and with his guests.

After such verbal resistance as Kalu Ram could offer had been overcome, his wife indignantly refused to submit to the indecent proposal conveyed to her through her husband. It is said that under the husband’s pressure, she after vehement protestations resigned herself to the disgrace that awaited her. There is also material with the prosecution that her shrieks pierced through the walls of the room and were heard by some Advocates living in the neighbourhood just before her voice was finally and fatally silenced. Such a submission on her part cannot be called by any stretch of language, consent.

7. A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be “consent” as understood in law. Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.

Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure.

A woman is said to consent, only when she freely agrees to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former. On the material placed before me it cannot reasonably be argued that Mst. Surti was an assenting victim to the outrage perpetrated on her, on the fatal night. It is also not possible for me to accept the contention of the counsel for the accused petitioners, that Kalu Rani, the husband of the girl had freely and voluntarily accepted the importunate overtures, said to have been made to him, by Rao Haranarain Singh with full awareness of and willing concurrence in the proposed acts to which his wife was to be subjected by the accused persons.

8. Mr. Bhagat Singh Chawla also submitted commiseratingly that his clients were respectable and well connected persons, belonging to a higher strata of society and had assembled to spend a pleasant evening with no intention to endanger the life of the girl. The orgy of lust and debauchery to which the accused are said to have abandoned themselves was an act of unmitigated reprobates rather than of the so called “respectable persons”.

9. I am not unmindful of the proposition that the bad character of a man does not disentitle him from being bailed out if the law allows it. It is also well established that the object of detention pending criminal proceedings, is not punishment, and the law favours allowance of bail, which is the rule, and refusal is the exception. On the other hand, the social position or status of an accused person should not be taken into consideration while granting or rejecting an application for bail.

The Courts do not grant bail merely because an accused is a respectable man and is able to afford reasonable security (vide Emperor v. Abhairaj Kunwar AIR 1940 Oudh 8 (A) and Shaikh Karim v. Emperor AIR 1926 Nag 279 (B). I may profitably quote the observations of Courtney-Terrell, C. J., in Hikayat Singh v. Emperor, AIR 1932 Pat 209, at p. 211 (C).

“We must point out in the most emphatic way for the future guidance of Magistrates and Sessions Judges that save in exceptional cases, persons accused of crimes punishable with long terms of imprisonment should not be released by them on bail. The richer the accused and the more easy it is for him to find bail, the less it is desirable that he should be released …..”

10. It will be proper at this place to consider the principles which should guide the Courts in granting bail in a case like the present. There cannot be inflexible rules governing a subject which rests principally with the Courts’ discretion in the matter of allowance or refusal of bail. The probability or improbability of the prosecution terminating in conviction is not a conclusive consideration for the grant or refusal of bail, particularly in a case like this, in which evidence has not so far been led. For their guidance the Courts also look to other circumstances which may be determinative, as for example the Courts consider:

(a) the enormity of the charge,

(b) the nature of the accusation,

(c) the severity of the punishment which the conviction will entail, (d) the nature of the evidence in support of the accusation,

(e) the danger of the applicant’s absconding if he is released on bail,

(f) the danger of witnesses being tampered with,

(g) the protracted nature of the trial, (h) opportunity to the applicant for preparation of his defence and access to his counsel and

(i) the health, age and sex of the accused. There are also other considerations and the above is by no means an exhaustive catalogue of the factors which should weigh with the Courts.

11. The applicants in this case are accused of having committed the offences of murder, rape and also for causing disappearance of evidence of these offences. The first is a capital offence entailing death sentence, the second involves imprisonment for life and the last makes the offence punishable with imprisonment which may extend to seven years.

Section 497(1) of the Code of Criminal Procedure, while conferring wide discretionary powers on Courts to grant or refuse bail, where an accused person is suspected of the commission of a non-bailable offence, imposes important limitations, in cases where there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. The words “death or imprisonment for life,” should be read disjunctively, so as to mean offence punishable with death or punishable with imprisonment for life vide Emperor v. Nga San Htwa, AIR 1927 Rang 205 (FB) (D).

12. In this case an application for bail has been made at the initial stages of the case before the framing of charges against the accused and it is not possible at this juncture to scan the evidence in order to sec whether it establishes the guilt of the accused beyond reasonable doubt. On an application for bail it is not the certainty or the improbability of a capital sentence or imprisonment for life being imposed, which is to be seen but simply whether, the offence is one for which such a sentence may be awarded.

In considering an application for bail a Court is not required to conduct a preliminary trial of the case and consider the probability of the accused being found guilty or innocent. The Courts while deciding such applications, will be traversing beyond their proper ambit and would be exceeding: the limits of their function if they engage themselves in discovering the guilt or innocence of the accused applicant, which can only be determined at the trial stage.

Courts may, however, incidentally turn to the evidence with a view to examining the question of allowance or refusal of bail with reference to the principles governing release or detention pending the proceedings vide Public Prosecutor v. M. Sanyasayya Naidu AIR 1925 Mad 1224 (E).

13. The applicants in this case have been accused of having committed grave offences punishable with long terms of imprisonment and this is a consideration against their being released on bail. The question of severity of punishment must be looked at not from the point of view of what sentence on the facts of a particular case the Court should award, but only to see the maximum punishment which the Court may award.

14. Shri Chctan Das Diwan, learned counsel appearing for the State, has argued that the State entertains grave apprehension that there is a danger of the applicants absconding. It is stated in the affidavit of S. Surjan Singh, Deputy Superintendent of Police, C.I.D., that Balbir Singh accused was proclaimed as an absconder and he could not be apprehended until his property was attached under the provisions of the Criminal Procedure Code.

He has also argued that two accused, Rao Harnarain Singh and Mauji Ram, are men of importance in their respective walks of life, possessing considerable wealth and wielding great influence, and the witnesses who are to be produced by the prosecution, comparatively, occupy a very humble station in life; one of such witnesses served meals to the party at the dinner and another was a sweepress in the house of Rao Harnarain Singh. In this case, the apprehension that the accused on being released on bail will in all likelihood avail themselves of the opportunities to corrupt the prosecution witnesses by tampering with their testimony cannot be dismissed as chimerical.

15. In this case there is no risk of any unreasonable delay in consequence of the laches of the prosecution. An unreasonably long detention in Jail before the commencement of the trial is ordinarily a hardship, which weighs greatly with the Courts, in favour of the accused, while considering the desirability of allowing bail applications. But in this case there is no such risk as 12th of August, 1957, is the next date fixed before the trial Court. It is expected that the trial will proceed with reasonable speed.

16. There is no suggestion, that the trial is going to be protracted or their detention in jail has in any way deprived them of an opportunity to prepare their defence or has in any way interfered with their right to instruct their counsel. Lastly, bail in this case has not been asked on grounds relating to health or age of the accused.

17. After having thoroughly examined the arguments of the learned counsel, and after taking into careful consideration the principles governing release on bail, I am of the view, that this application and Criminal Miscellaneous No. 397 of 1957 cannot succeed, and are, there-tore, dismissed. I must however, warn the trial Court against drawing any inferences as to the guilt or innocence of the accused from any observations made in this order. The guilt or innocence of the accused is a matter which has to be determined by the trial Court and no remarks made by me should be treated as prejudging the case. Such comments as have been made in this order exclusively bear on considerations for refusing or allowing release on bail.

Supreme Court on obscenity (Raj Kapoor v. State) Justice Krishna Iyer.

QUESTION : Cinematograph Act 1952 Section 5A-Whether the issuance of the certificate issued by the specialised Board of Film Censors bars the criminal Court’s jurisdiction to try for offences under Sections 292/293 I.P.C ? 
 
Court said no…read on
 
Supreme Court of India
Raj Kapoor And Ors vs State And Others on 26 October, 1979
Equivalent citations: 1980 AIR 258, 1980 SCR (1)1081
Author: O Untwalia.
Bench: Krishnaiyer, V.R.

PETITIONER:

RAJ KAPOOR AND ORS.

Vs.

RESPONDENT:

STATE AND OTHERS

DATE OF JUDGMENT26/10/1979

BENCH:

KRISHNAIYER, V.R.

BENCH:

KRISHNAIYER, V.R.

PATHAK, R.S.

CITATION:

1980 AIR 258 1980 SCR (1)1081

1980 SCC (1) 43

CITATOR INFO :

RF 1981 SC1196 (5)

F 1983 SC 67 (7)

RF 1986 SC 833 (49)

ACT:

Inherent powers vis-a-vis revisional powers of the High Court, nature of-Criminal Procedure Code, 1973 Sections 482 and 397.

Cinematograph Act 1952 Section 5A-Whether the issuance of the certificate issued by the specialised Board of Film Censors bars the criminal Court’s jurisdiction to try for offences under Sections 292/293 I.P.C.

HEADNOTE:

Pursuant to the complaint filed by the second respondent against the appellants under sections 292/293 read with section 34 of the Penal Code for alleged punitive prurience moral depravity and shocking erosion of public decency of the film Satyam, Shivam, Sundaram, the Metropolitan Magistrate recorded the statement of three witnesses, including the complainant, in a preliminary inquiry under section 200 of the Code of Criminal Procedure and holding that a prima facie case existed for summoning the appellants, made an order directing issue of summons for their attendance. The appellants applied against the order to the High Court of Delhi under section 482 of the Code of Criminal Procedure, but the High Court, being of opinion that a revision petition lay against that order, decided to entertain it under section 397 of the Code. As the certified copy of the order of the Metropolitan Magistrate was not filed along with the petition, it was rejected by the High Court on August 3, 1979, as not competent. Allowing the appeal by special leave the Court, ^

HELD:

(Per Iyer J.)

The opening words of Section 482 of the Code of Criminal Procedure contradict the contention whether the inherent powers of the High Court under Section 482 stands repelled when the revisional power under section 397 overlaps because nothing in the Code, not even section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Still, a general principle pervades this branch of law when a specific provision is made; easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same code. [1085 G-H, 1086A]

While it is true that Section 482 is pervasive, it should not subvert legal interdicts written into the same code, such for instance, in section 397(2). In short, there is no total ban on the exercise of inherent power where abuse of the process of the Court or other extraordinary situation excites the Court’s jurisdiction. The limitation is self-restraint, nothing more. [1086 A-B, G] 1082

The policy of law is clear that interlocutory orders, pure and simple, should not be taken upto the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent powers, if glaring injustice stares the Court in the face. In between there is a tertium quid where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complain of harassment through the Court’s process. In this third category (tertium quid) the inherent power can be exercised. [1086G-H, 1087A] Merely because a copy of the order has not been produced despite its presence in the records of the Court, it cannot be said that the entire revisory power stands frustrated and the inherent power stultified. [1087D-E] When the order in original is before the Court, to dismiss the petition for non production of a copy of it is to bring the judicial process into pejoration and if a copy were so sacred that the original were no substitute for it some time could have been granted for its production which was not done. In law, as in life a short cut may prove a wrong cut. The content of the power so far as the present situation is concerned is the same, be it under section 397 or section 482 of the Code. [1087E-G]

Madhu Limaye v. State of Maharashtra, A.I.R. 1978 SC 47 at 51 followed.

The Film Censor Board acting under section 5A of the Cinematograph Act, 1952, is specially entrusted to screen off the silver screen pictures which offensively invade or deprave public morals through over-sex. A certificate by a high powered Board of Censors with specialised composition and statutory mandate is not a piece of utter consequence. It is relevant material important in its impact, though not infallible in its verdict. But the Court is not barred from trying the case because the certificate is not conclusive. Nevertheless, the magistrate shall not brush aside what another tribunal has, for similar purpose found. [1088E-F] A Board’s certificate does not bar the criminal Court’s jurisdiction to try for the offences under sections 292/293 Penal Code. Once a certificate under the Cinematograph Act is issued, the Penal Code pro tanto will not hang limp. May be, even a rebuttable presumption arises in favour of the statutory certificate but could be negatived by positive evidence. An act of recognition of moral worthiness by a statutory agency is not opinion evidence but an instance or transaction where the fact in issue has been asserted, recognised or affirmed. The Court will examine the film and judge whether its public policy, in the given time and clime, so breaches public morals or depraves basic decency as to offend the penal provisions. A view of the film may tell more than volume of evidence will and maybe any court before making up its mind, may like to see the picture from the angle of Sections 292/293 I.P.C. There is no meaningful alternative for an intelligent eye. [1088G-H, 1089A, E, 1090A-B]

Finality and infallibility are beyond Courts which must interpret and administer the law with pragmatic realism, rather than romantic idealism or recluse extremism. Yet, especially when a special statute (the Cinematograph Act) has set special standards for films for public consumption and created a special Board to screen and censor from the angle of public morals and the

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like, with its verdicts being subject to higher review, inexpert criminal Courts must be cautious to “rush in” and indeed must “fear to tread”, lest the judicial process should become a public footpath for any highway man wearing a moral mask holding up a film-maker who has travelled the expensive and perilous journey to exhibition of his “certificated” picture. Omniscience is not the property of a judge. [1084E-F, 1089D]

(Per Pathak J.)

In a trial for the offences under sections 292/293 of the Indian Penal Code a certificate granted under s. 6 of the Cinematograph Act by the Board of Censors does not provide and irrebuttable defence to accused who have been granted such a certificate, but it is certainly a relevant fact of some weight to be taken into consideration by the criminal Court in deciding whether the offence charged is established. Regard must be had by the court to the fact that the certificate represents the judgment of a body of persons particularly selected under the statute for the specific purpose of adjudging the suitability of films for public exhibition, and that judgment extends to a consideration of the principal ingredients which go to constitute the offences under ss. 292 and 293 of the Indian Penal Code. At the same time, the Court must remind itself that the function of deciding whether the ingredients are established is primarily and essentially its own function, and it cannot abdicate that function in favour of another, no matter how august and qualified be the statutory authority. [1091 A-D]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 621 of 1979.

Appeal by Special Leave from the Judgment and Order dated 23-8-1979 of the Delhi High Court in Crl. Misc. No. 13/79.

B. K. L. Iyengar, M. Iyengar and P. R. Ramasesh for the Appellants.

R. N. Sachthey for Respondent No. 1.

Arun Kapil, Shiv Kumar and R. K. Jain for Respondent No. 2.

The following Orders were delivered:

KRISHNA IYER, J. In our constitutional order, fragrant with social justice, broader considerations of final relief must govern the judicial process save where legislative interdict plainly forbids that course. The dismissal by the High Court, on a little point of procedure, has led to this otherwise avoidable petition for special leave, at a time when torrents of litigation drown this Court with an unmanageable flood of dockets. The negative order under challenge was made by the High Court refusing to exercise its inherent power under s. 482 of the Criminal Procedure Code (the Code, for short) because the subject fell under its revisional power under s. 397 and this latter power was not unsheathed because a copy of the short order of the trial court had not been filed as required, not by the Code, but by a High Court rule, although the original order, together with all the records, had been sent for and was before the court ! A besetting sin

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of our legal system is the tyranny of technicality in the name of financial legality, hospitably entertained sometimes in the halls of justice. Absent orientation, justicing becomes ‘computering’ and ceases to be social engineering. The story briefly. Only a woodcut of the profile of the case will do. A unique pro bono publico prosecution was launched by a private complainant, claiming (before us) to be the President of a Youth Organisation devoted to defending Indian cultural standards, inter alia, against the unceasing waves of celluloid anti-culture, arraigning, together with the theatre owner, the producer, actors and photographer of a sensationally captioned and loudly publicised film by name Satyam, Sivam, Sundaram, under Ss. 282, 283 and 34 Indian Penal Code (hereinafter referred to as the Penal Code) for alleged punitive prurience, moral depravity and shocking erosion of public decency. Were there serious merit in the charge, a criminal prosecution would serve to sanitize the polluted celluloid, hand cuff cinemas running erotic and amok, and become a crucial super-censorship of salacious films. Why not ? Were it otherwise, the precarious film producer had to face a new menace to public exhibition easily set in motion through the process of the court by any busy body willing to blackmail of wanting to harass, prodded by rival producers. Especially when a special statute (the Cinematograph Act) has set special standards for films for public consumption and created a special board to screen and censor from the angle of public morals and the like, with its verdicts being subject to higher review, inexpert criminal courts must be cautious to ‘rush in’ and, indeed, must ‘fear to tread’, lest the judicial process should become a public footpath for any high way man wearing a moral mask holding up a film maker who has travelled the expensive and perilous journey to exhibition of his ‘certificated’ picture. Omniscience, if one may adapt a great thought of Justice Holmes, is not the property of a judge. We pronounce no, opinion at this stage, on the merits of the rival stances with reference to the picture Satyam, Sivam, Sundaram.

The trial court examined a few witnesses and, thereafter, issued summons to the appellants who, naturally, were scared by this novel process and rushed for refuge to the High Court. A petition under s. 482 to quash the proceedings was moved. The learned judge held: “a revision under s. 397 lay against an order summoning the accused persons. Once the revision petition lies, the petition cannot be entertained under the inherent powers of this Court.

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Therefore, the petition has to be treated as a petition for revision under Section 397(1) of the Code. A petition under Section 397(1) of the Code ought to be accompanied by a copy of the order impugned. [See Rule 3-A of Chapter 1-A(b) of Volume V, High Court Rules and Orders of the Punjab High Court, as applicable to Delhi]. The original summons filed, are not orders and no revision lies against those summons. The revision lies only against the order summoning the petitioners. Revision petition against the order of summoning without filing certified copy of the order summoning the petitioners, is not competent. The revision petition is accordingly dismissed for want of certified copy of the impugned orders.”

Thus, the inherent power was repelled because a revision lay and the revision was rejected because a copy of the order was not filed though the original itself was in the file. Thus the merits of the revision remain to be decided and preliminary skirmishes on points of procedure in a criminal prosecution have consumed well over a year. Two questions may be formulated for decision-one of jurisdiction and consequent procedural compliance, the other of jurisprudence as to when, in the setting of the Penal Code, a picture to be publicly exhibited can be castigated as prurient and obscene and violative of norms against venereal depravity. Art, morals and law’s manacles on aesthetics are a sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because State made straight-jacket is an inhibitive prescription for a free country unless enlightened society actively participates in the administration of justice to aesthetics.

The world’s greatest paintings, sculptures, songs and dances, India’s lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and proscribe heterodoxies. It is plain that the procedural issue is important and the substantive issue portentous.

The first question is as to whether the inherent power of the High Court under s. 482 stands repelled when the revisional power under s. 397 overlaps. The opening words of s. 482 contradict this contention because nothing in the Code, not even s. 397 can affect the amplitude of the inherent power preserved in so many terms by the language of s. 482. Even so, a general principle pervades this branch of law when a specific provision is made; easy resort to inherent power is not

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right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. In Madhu Limaye’s case(1) this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that s. 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in s. 397(2). Apparent conflict may arise in some situations between the two provisions and a happy solution: “would be to say that the bar provided in sub- section (2) of section 397 operates only in exercise of the revisional power of the High Court meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principle enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the assailed is purely on an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction.”(2)

In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extra-ordinary situation excites the court’s jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. In 1087

between is a tertium quid, as Untwalia, J. has pointed out as for example, where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complain of harassment through the courts process. Can we state that in this third category the inherent power can be exercised ? In the words of Untwalia. J.:

“The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible.”

I am, therefore, clear in my mind that the inherent power is not rebuffed in the case situation before us. Counsel on both sides, sensitively responding to our allergy for legalistics, rightly agreed that the fanatical insistence on the formal filing of a copy of the order under cassation need not take up this court’s time. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified. When the order, in original, is before you, to dismiss the petition for non-production of a copy of it is to bring the judicial process into pejoration, and, if a copy were so sacred that the original were no substitute for it some time could have been granted for its production, which was not done. In law, as in life, a short cut may prove wrong cut. I disinter the cassation proceeding and direct it to be disposed of de novo by the High Court. The content of the power, so far as the present situation is concerned, is the same, be it under s. 397 or s. 482 of the Code. The next point urged before us by Shri Iyengar is that once a certificate under the Cinematograph Act is granted, the homage to the law of morals is paid and the further challenge under the Penal Code is barred. Jurisprudentially speaking, law, in the sense of command to do or not to do, must be a reflection of the community’s cultural norms, not the State’s regimentation of aesthetic expression or artistic creation. Here we will realise the superior jurisprudential value of

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dharma, which is a beautiful blend of the sustaining sense of morality, right conduct, society’s enlightened consensus and the binding force of norms so woven as against positive law in the Austinian sense, with an awesome halo and barren autonomy around the legislated text is fruitful area for creative exploration. But morals made to measure by statute and court is a risky operation with portentous impact on fundamental freedoms, and in our constitutional order the root principle is liberty of expression and its reasonable control with the limits of ‘public order, decency or morality’. Here, social dynamics guides legal dynamics in the province of ‘policing’ art forms.

It is deplorable that a power for good like the cinema, by a subtle process, and these days, by a ribald display, vulgarises the public palate, pruriently infiltrates adolescent minds, commercially panders to the lascivious appetite of rendy crowds and inflames the lecherous craze of the people who succumb to the seduction of sex and resort, in actual life, to ‘horror’ crimes of venereal violence. The need to banish cinematographic pornos and the societal strategy in that behalf had led to the Cinematograph Act, 1952. The Censor Board, under this Act, is charged with power to direct doctoring, tailoring, sanitizing and even tabooing films so that noxious obscenity may not be foul and erotic aroma make mass appeal.

I am satisfied that the Film Censor Board, acting under s. 5A, is specially entrusted to screen off the silver screen pictures which offensively invade or deprave public morals through over-sex. There is no doubt-and counsel on both sides agree-that a certificate by a high-powered Board of Cansors with specialised composition and statutory mandate is not a piece of utter inconsequence. It is relevant material, important in its impact, though not infallible in its verdict. But the Court is not barred from trying the case because the certificate is not conclusive. Nevertheless, the magistrate shall not brush aside what another tribunal has for similar purpose, found. May be, even a rebuttable presumption arises in favour of the statutory certificate but could be negatived by positive evidence. An act of recognition of moral worthiness by a statutory agency is not opinion evidence but an instance or transaction where the fact in issue has been asserted, recognised or affirmed.

I am not persuaded that once a certificate under the Cinematograph Act is issued the Penal Code, pro tanto, will hang limp. The Court will examine the film and judge whether its public display, in the given time and clime, so breaches public morals or depraves basic decency as to offend the penal provisions. Statutory expressions are not 1089

petrified by time but must be up-dated by changing ethos even as popular ethics are not absolutes but abide and evolve as community consciousness enlivens and escalates. Surely, the satwa of society must rise progressively if mankind is to move towards its timeless destiny and this can be guaranteed only if the ultimate value-vision is rooted in the unchanging basics, Truth-Goodness-Beauty, Satyam, Shivam, Sundaram. The relation between Reality and Relativity must haunt the court’s evaluation of obscenity, expressed in society’s pervasive humanity, not law’s penal prescriptions. Social scientists and spiritual scientists will broadly agree that man lives not alone by mystic, squints, ascetic chants and austere abnegation but by luscious love of Beauty, sensuous joy of companionship and moderate non-denial of normal demands of the flesh. Extremes and excesses boomerang although some crazy artists and film directors do practise Oscar Wilde’s observation: “Moderation is a fatal thing. Nothing succeeds like excess”. All these add up to one conclusion that finality and infallibility are beyond courts which must interpret and administer the law with pragmatic realism, rater than romantic idealism or recluse extremism.

After all, Cohen’s words, in Reason and Law, are good counsel: “The law is not a homeless, wandering ghost. It is a phase of human life located in time and space.”(1) I reject the extreme contention that a board certificate bars the criminal court’s jurisdiction to try for offences under s. 292/293 I.P.C.

The general guide-lines, so far as is necessary, have been given. Since we are directing the High Court to re-hear the case, there is no room for further examination of the law except to sketch the perspective. The inter-action and cross-fertilisation of law and morality are interesting subjects for research and the guardian role of the court to paint paradigms of virtue or prescribe parameters of morals is too moot for glib assertion. Public policy on good morals is woven by society from within, although when degeneracy goes deep the State cannot sleep. Speaking generally, government-prescribed morality often turns out to be a remedy which aggravates the malady. But law’s imperatives and court’s commands can work well once popular institutions and voluntary groups mobilise the basic virtues and catalise the buried values. Spiritual secular movements, at a time of value crisis, are the salvationary agents of society, with the State, keeping its police power unsheathed, activising the voluntary process towards goodness.

I hold that the proceeding was maintainable before the High Court and its rejection was wrong. I would, therefore, set aside that order

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but direct the court to proceed with the hearing and bring it to a close expeditiously. A view of the film may tell more than volumes of evidence will and, maybe, any court before making up its mind, may like to see the picture from the angle of s. 292/293 I.P.C. There is no meaningful alternative for an intelligent eye.

For the reasons assigned above. I allow the appeal and send the case back for fresh disposal.

PATHAK, J. This is an appeal against an order of the High Court of Delhi rejecting a petition filed by the appellants for quashing an order summoning the appellants on a complaint filed by the second respondent in respect of offences under sections 292 and 293 read with section 34 of the Indian Penal Code.

Pursuant to a complaint filed by the second respondent the Metropolitan Magistrate recorded the statement of three witnesses, including the complainant, in a preliminary inquiry under s. 200 of the Code of Criminal Procedure, and holding that a prima facie case existed for summoning the appellants, he made an order directing issue of summons for the petitioners attendance of the appellants. The appellants applied against the order to the High Court of Delhi under section 482 of the Code of Criminal Procedure, but the High Court, being of opinion that a revision petition lay against that order, decided to entertain it as a revision petition. As the certified copy of the order of the Metropolitan Magistrate summoning the appellants was not filed along with the petition, it was rejected by the High Court on August 3, 1979 as not competent. The present appeal is directed against that order.

The questions which arises on the order of the High Court are whether (a) the petition filed by the appellants under s. 482 of the Code of the Criminal Procedure could be treated by the High Court as a revision petition under s. 397 of the Code, and (b) assuming that it could be regarded as a revision petition, whether the High Court was right in rejecting it on the ground that a certified copy of the Metropolitan Magistrate’s order summoning the appellants was not filed with it. After arguments before us had proceeded to a point, counsel for the parties agreed that the High Court should not have rejected the revision petition at the stage it had reached and that the matter called for a decision on the merits. In the circumstances, the controversies embodied in the two questions become wholly academic, and it is unnecessary to adjudicate on them. But the further question which has been debated before us relates to the relevance and probative value of the certificate issued by the Board of Censors certifying under s. 6 of the Cinematograph Act that the film “Satyam Shivam Sundaram” has been approved for public exhibition to an adult audience. We have been invited to express our 1091

views on the point as, counsel urge, it will arise directly in the litigation pending before the High Court and the Metropolitan Magistrate and our observations, they say, would foreclose any further dispute on an issue of law of some importance. There is no difficulty in laying down that in a trial for the offences under ss. 292 and 293 of the Indian Penal Code a certificate granted under s. 6 of the Cinematograph Act by the Board of Censors does not provide an irrebuttable defence to accused who have been granted such a certificate, but it is certainly a relevant fact of some weight to be taken into consideration by the criminal court in deciding whether the offence charged is established. Regard must be had by the court to the fact that the certificate represents the judgment of a body of persons particularly selected under the statute for the specific purpose of adjudging the suitability of films for public exhibition, and that judgment extends to a consideration of the principal ingredients which go to constitute the offences under ss. 292 and 293 of the Indian Penal Code. At the same time, the court must remind itself that the function of deciding whether the ingredients are established is primarily and essentially its own function, and it cannot abdicate that function in favour of another, no matter how august and qualified be the statutory authority.

The order of the High Court rejecting the petition being erroneous it is set aside, and the High Court is directed to dispose of the petition on the merits within two weeks from today. In case the petition is dismissed on the merits by the High Court, it will direct the Court below to proceed with the trial expeditiously and to bring to an early close the case pending before it.

ORDER OF THE COURT

We direct the High Court to dispose of the petition on the merits as soon as may be, not later than one month from today. In case, the petition is dismissed on the merits, by the High Court, it will direct the Court below to proceed with the trial as soon as possible and to bring to an early close the case pending before it.

S.R. Appeal allowed and remitted.


Supreme Court on obscenity (Bandit Queen Judgment)

A Remarkable judgment outlining the law of obscenity as it stands in India, in a nutshell, while holding Bandit Queen to have been rightly passed by the Censors, held it not to obscene as it in no manner appeals to the prurient interests or is lascivious – or corruptive to the minds of people whose minds are open to such immoral influences, it does not titilate rather reflect the agony of a woman gang raped and is a saga of her revenge. It negatived the argument that once censor board passes the movie – IPC would stand limp – The Courts can still peruse and scrutinize to see whether obscenity is there or not, though censor board certification is offcourse persuasive. 
 
Supreme Court of India
Bobby Art International, Etc vs Om Pal Singh Hoon & Ors on 1 May, 1996
Author: Bharucha
Bench: S Bharucha, B Kirpal

PETITIONER:

BOBBY ART INTERNATIONAL, ETC.

Vs.

RESPONDENT:

OM PAL SINGH HOON & ORS.

DATE OF JUDGMENT: 01/05/1996

BENCH:

CJI, S.P. BHARUCHA , B.N. KIRPAL

ACT:

HEADNOTE:

JUDGMENT:

WITH

CIVIL APPEAL NOS. 7523, 7525-27 AND 7524 (Arising out of SLP(Civil) No. 8211/96, SLP(Civil) No. 10519-21/96 (CC No. 1828-1830/96 & SLP(C) No. 9363/96) J U D G M E N T

BHARUCHA, J.

Special leave granted.

These appeals impugn the judgment and order of a Division Bench of the High Court of Delhi in Letters Patent appeals. The Letters Patent appeals challenged the judgment and order of a learned single judge allowing a writ petition. The Letters Patent appeals were dismissed, subject to a direction to the Union of India (the second respondent). The writ petition was filed by the first respondent to quash the certificate of exhibition awarded to the film “Bandit Queen” and to restrain its exhibition in India.

The film deals with the life of Phoolan Devi. It is based upon a true story. Still a child, Phoolan Devi was married off to a man old enough to be her father. She was beaten and raped by him. She was tormented by the boys of the village; and beaten by them when she foiled the advances of one of them. A village panchayat called after the incident blamed Phoolan Devi for attempting to entice the boy, who belonged to a higher caste. Consequent upon the decision of the village Panchayat. Phoolan Devi had to leave the village. She was then arrested by the Police and subjected to indignity and humiliation in the Police station. Upon the intervention of some persons she was released on bail; their intervention was not due to compassion but to satisfy their carnal appetite. Phoolan Devi was thereafter kidnapped by dacoits and sexually brutalised by their leader, a man named Babu Gujjar. Another member of the gang, Vikram Mallah, shot Babu Gujjar dead in a fit of rag while he was assaulting phoolan Devi. Phoolan Devi was attracted by Vikram Mallah and threw her not in with him. Along with Vikram Mallah she accosted her husband, tied him to a tree and took her revenge by brutally beating him. One Sri Ram, the leader of a gang of Thakurs, who had been released from jail, made advances to Phoolan Devi and was spurned. He killed Vikram Mallah. Having lost Vikram Mallah’s protection, Phoolan Devi was gang-raped by Sri Ram, Lalaram and others. She was stripped naked, paraded and made to fetch water from the village well under the gaze of the villagers, but no one came to her rescue. To avenge herself upon her persecutors, she joined a dacoits gang headed by Baba Mustkin. In avenging herself upon Sri Ram, she humiliated and killed twenty Thakurs of the village of Behmai. Ultimately, she surrendered and was in jail for a number of years.

(We have not viewed the film. The story thereof as set out above comes from the judgment under appeal.) The film is based on a book written by Mala Sen called “India’s Bandit Queen”. The book has been in the market since the year 1991 without objection. On 17th August, 1994, the film was presented for certification to the Censor Board under the Cinematograph Act, 1952. The Examining Committee of the Censor Board referred it to the Revising Committee under Rule 24(1) of the Cinematographic (Certification) Rules, 1983. On 19th July, 1995, the Revising Committee recommended that the film be granted an ‘A’ certificate, subject to certain excisions and modifications. (An ‘A’ certificate implies that the film may be viewed only by adults).

Aggrieved by the decision of the Revising Committee, an appeal was filed under Section SC of the Cinematographic Act before the Appellate Tribunal. It is constituted by virtue of the provisions of Section 5C of the Cinematograph Act and consists of the Chairman and members who “are qualified to judge the effect of films on the public”. In the present case the tribunal was chaired by Lentin. J., a retired Judge of the Bombay High Court, and three ladies, Smt. Sara Mohammad, Dr. Sarayu V. Doshi & Smt. Reena Kumari, were its members.

The Tribunal’s order states that the film “portrays the trials and tribulations and the various humiliations (mental and physical) heaped on her (Phoolan Devi) from childhood onwards, which out of desperation and misery drove her to dacoity and the revenge which she takes on her tormentors and those who had humiliated and tortured and had physically abused her.

3.1 The tone and tenor of the dialogues in this film reflect the nuances locally and habitually used and spoken in the villages and in the ravines of the Chambal, not bereft of expletives used for force and effect by way of normal and common parlance in those parts; these expletives are not intended to be taken literally. There in nothing sensual or sexual about these expletives used as they are in ordinary and habitual course as the language in those parts and express as they to emotions such as anger, rage, frustration and the like, and represent as they do the color of the various locales in this film.” The tribunal accepted the argument of the appellant before it in respect of certain scenes where excisions or modifications had been required. We shall restrict ourselves to the Tribunal’s findings on the observations relating to the film as a whole. A scene of policemen hitting Phoolan Devi with the butt of a gun had been ordered to be deleted; the Tribunal said that the deletion “would negate the very impact of this film in its endeavour to depict the maltreatment and cruelty heaped upon the victim by the perpetrators, which resulted in the former turning her face against, and seeking revenge on, the perpetrators of her humiliation and degradation. Deletion or even reduction of this sequence which follow, as it would also leave the average audience bewildered as to the intensity of the bitterness the victim right feels towards her tormentors.” Another scene dealt with the rape of Phoolan Devi by Babu Gujjar. The sequence was in three parts and the appellant had volunteered to reduce the first two sequences “to the bare cinematic necessity”: the Tribunal did not accept this, having ascertained what was meant. It directed that the second of the three sequences be deleted altogether, and that there be a reduction by 30% of the first sequence and by 20% of the third sequence, with the qualification that the visuals of the man’s bare posterior in the first and third sequences be reduced to a flash. Exception was taken before the Tribunal to the direction to reduce by 70% the sequence of Phoolan Devi torturing her husband. The Tribunal found that the sequence brought to the fore the ferocity of Phoolan Devi’s hatred and revulsion towards the man who drove her to being the hunted dacoit she became. Phoolan Devi’s pent-up anger, emotions and revulsion were demonstrated in the scene. It was a powerful scene the reduction of which would negate its impact. Much emphasis was laid before us upon the fact that Phoolan Devi is shown naked being paraded in the village after being humiliated. The Tribunal observed that these visuals could but create sympathy towards the unfortunate woman in particular and revulsion against the perpetrators of crimes against women in general. The sequence was an integral part of the story. It was not sensual or sexual, and was intended to, as indeed did, create revulsion in the minds of the average audience towards the tormentors and oppressors of women. “To delete or even to reduce these climactic visuals”, the Tribunal said, “would be a sacrilege”. It added, “4.9.1. While recommending the deletion of the visuals aforestated, perhaps the Revising Committee momentarily aforestated, perhaps the Revising Committee momentarily forgot “Schindier’s List” which was passed by the Board without a cut and despite prolonged sequences of frontal nudity of men and women depicted therein, and rightly so because the scenes of frontal nudity in that film were intended to create a feeling or revulsion and a sense of horror that such crimes could indeed be committed. Likewise in the present film.” The Tribunal permitted certain words of abuse in the vernacular to be retained because of the context in which they were spoken and the persons by whom they were spoken: “spoken as they are as colloquially and as part of their daily life, it would be unfair on our part to castigate the use of these words which we would otherwise have done”.

Upon the basis of this unanimous order of the Tribunal, the film was granted an ‘A’ certificate. On 31st August, 1995, the film was screened, with English sub-titles, at the Siri Fort Film Festival of India with the permission of the Ministry of Information and Broadcasting. From 25th January, 1996, onwards, the censored film was open to public viewing at various cinema theatres in the country.

On 27th January, 1996, the first respondent filed the writ petition before the Delhi High Court seeking to quash the certificate granted to the film and to restrain its exhibition in India. The first respondent stated in the writ petition that the was a Hindu and Gujjar by caste. He was the president of the Gujjar Gaurav Sansthan and involved in the welfare of the Gujjar community. He had seen the film when it was exhibited at the International Film Festival; he had felt aggrieved and his fundamental rights had been violated. Though audiences were led to believe that the film depicted the character of “a former queen of ravings” also known as Phoolan Devi, the depiction was “abhorrent and unconscionable and a slur on the womanhood of India”. The petitioner and his community had been depicted in a most depraved way specially in the scene of rape by Babu Gujjar, which scene was “suggestive of the moral depravity of the Gujjar community as rapists and the use of the name Babu Gujjar for the principal villian lowered the reputation of the Gujjar community and the petitioner. It lowered t he respect of the petitioner in the eyes of society and his friends. The scene of rape was obscene and horrendous and cast a slur on the face of the Gujjar community. The film went beyond the limits of decency and lowered the prestige and position of the woman in general and the community of Mahallas in particular. The first respondent had been discriminated against and Articles 14, 19 and 21 of the Constitution had been violated.

The learned Single Judge allowed the writ petition and quashed the certificate granted to the film. He directed the Censor Board to consider the grant of an ‘A’ certificate to it after excisions and modifications in accordance with his order had been made. Till a fresh certificate was granted the screening of the film was injuncted. The Division Bench, in the judgment under appeal, upheld the view taken by the learned single Judge. Having viewed the film, it examined it in regard to three aspects. The first dealt with the frontal nudity scene. The scene, the Division Bench said, ran for a full two minutes. The heroine was stripped totally naked in the gaze of about a hundred villagers standing in a circle at a distance around a well and she with her front, including her private parts, exposed. The Division Bench noted the findings of the Tribunal in regard to this scene (which have been referred to above) and held, “In the face of a finding by the Appellate Tribunal of the scene creating revulsion, the only inference could have been that the scene of total frontal nudity from top to toes was ‘indecent’ within Section 5-B and Article 19(2).” The scene also offended the guidelines in para 2(ix), para 2(xi) and para 2(vii). The second aspect that was considered by the Division Bench was that which showed the naked posterior of Babu Gujjar in the rape scene. As noticed by the Division Bench by stop watch, this scene ran for about 20 seconds. It showed sexual intercourse by man and his physical movement, with his posterior exposed. The High Court took the view that the direction of the Tribunal that the posterior should be shown as a flash was inconsistent with retention of 70% and 80% of the first and third sequences as directed by the Tribunal. The scene of violent rape was disgusting and revolting and it denigrated and degraded women. The third aspect that the High Court concerned itself with was the use of expletives and it concluded that they should be deleted. Over-all, the Division Bench was of the view that the Tribunal’s order was vitiated by the use of the wrong tests. Section 5-B of the Cinematograph Act, which echoes Article 19(2), states that a film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of, inter alia, decency. Under the provisions of sub-section (2) of Section 5-B the Central Government is empowered to issue directions section out the principles which shall guide the authority competent to grant certificates in sanctioning films for public exhibition.

The guidelines earlier issued were

revised in 1991. Clause (1) thereof

reads thus:

“1. The objectives of film

certification will be to ensure

that -

(a) the medium of film remains

responsible and sensitive to the

values and standards of society:

(b) artistic expression and

creative freedom are not unduly

curbed;

(c) certification is responsive to

social change;

(d) the medium of film provides

clean and healthy entertainments;

and

(e) as far as possible, the film is

or aesthetic value and

cinematically of a good standard.”

Clause (2) states that the Board of

Film Censors shall ensure that-

“(vii) human sensibilities are not

offended by vulgarity, obscenity or

depravity;

xxx xxx xxx

(ix) scenes degrading or

denigrating women in any manner are

not presented:

(ix) scenes involving sexual

violence against women like attempt

to rape, rape or any form of

molestation or scenes of a similar

nature are avoided, and if any such

incident is germane to the theme,

they shall be reduced to the

minimum and no details are shown;

xxx xxx xxx

Clause (3) reads thus :

“The Board of Film Certification

shall also ensure that the film-

(1) is judged in its entirety from

the point of view of the overall

impact; and

(ii) is examined in the light of

the period depicted in the film and

the contemporary standards of the

country and the people to which the

film relates, provided that the

film does not deprave the morality

of the audience.”

Learned counsel for the appellants submitted that the film had been scrutinised by the Tribunal, which was an expert body constituted for that purpose, and it had passed the test of such scrutiny. It was emphasised that three members of the four-member Tribunal were ladies and they had not found anything offensive in the film as certified for adult viewing. The guidelines, it was submitted, required the film did not offend either Section 5-8(i) or the guidelines. The submission of learned counsel for the appellants was supported by the learned Additional Solicitor General, appearing for the Union of India. Dr. Koul, learned counsel for the first respondent, submitted that the machinery under cinematograph act was only for those who had some concern with the making of the film and that citizens who were offended by it were free to approach the High Court under Article 226. There were compelling reasons for the High Court to pass the order that it did not for the film was abhorrent. What had also to be considered were the individual episodes and the episodes depicting full frontal nudity, rape and the use of swear ward offended the requirements of sub-clauses (vii), (ix) and (x) of the guidelines. The film violated the freedom of speech and expression of the first respondent.

The decision of the court most relevant to the appeals before use was delivered by constitution Bench in K.A, Abbas vs, the Union of India & anr., (1970) 2 S.C.C. 780. It related to a documentary film entitled “A Tale of Four Cities”. The appellant contended in a petition under Article 32 that he was entitled to a certificate for unrestricted public exhibition thereof. What Hidayatullah, C.J. speaking for the Court, said needs to be reproduced: “49. We may now illustrate out

meaning how even the items

mentioned in the directions may

figure in films subject either to

their artistic merit or their

social value over-weighing their

offending character. The task of

the censor is extremely delicate

and his duties cannot be subject of

an exhaustive set of commands

established by prior ratiocination.

But direction is necessary to him

so that he does not sweep within

the terms of the directions vast

areas of thought, speech and

expression of artistic quality and

social purpose and interest. Our

standards must be so framed that we

are not reduced to a level where

the protection of the least capable

and the most depraved amongst us

determines what the morally healthy

cannot view or read. The standards

that we set for our censors must

make a substantial allowance in

favour of freedom thus leaving a

vast area for creative art to

interpret life and society with

some with some of its foibles along

with what is good. we must not look

upon such human relationships as

banned in toto and for ever from

human thought and must give scope

for talent to put them before

society. The requirements of art

and literature included

requirements of art and literature

include social life and not only in

its ideal from and the line is to

be drawn where the average moral

man begins to feel embarrassed or

disgusted at a naked portrayal of

life without the redeeming touch of

art or genius or social value. If

the depraved begins to see in these

things more than what an average

person would, in much the same way,

as, it is wrongly said, a Frenchman

sees a woman’s legs in everything,

it cannot be helped. In our scheme

of things ideas having redeeming

special or artistic ideas having

redeeming social or artistic value

must also have importance and

protection for their growth. Sex

and obscenity are not always

synonymous and it is wrong to

classify sex as essentially obscene

or even indecent or immoral. It

should be our concerned, however,

to prevent the use of sex designed

to play a commercial role by making

its own appeal. This draws in the

censor’s scissors. Thus audiences

in India can be expected to view

with equanimity the story of

Oedipus son of Latius who committed

patricide and incest with his

mother. when, No one after viewing

these episodes would think that

patricide or incest with one’s own

mother is permissible or suicide in

such circumstances or tearing out

one’s own eyes is natural

consequence. And yet if one goes by

the latter of the directions the

film cannot be shown. Similarly,

scenes depicting leprosy as a theme

in a story or in a documentary are

not necessarily outside the

protection. It that were so Verrier

Elwyn’s Phulmat of the Hills or the

same episode in Henryson’s

Testament of Cressaid (from where

Verrier Elwyn borrowed the Idea)

would never see the light of the

day. Again carnage and bloodshed

may have historical value and the

depiction of such scenes as the

Back of Delhi by Nadirshah may be

permissible, if handled delicately

and as part of an artistic

portrayal of the confrontation with

Mohammad Shah Rangila. If Nadir

Shah made golgothas of Skulls, must

we leave them out of the story

because people must be made to view

a historical them without true

history? rape in all its nakedness

may be objectionable but

Voltaire’s Candide would be

meaningless without Cunegonde’s

episode with the soldier and the

story of Lucrece could never be

depicted on the screen.

50. Therefore it is not the

elements of rape, leprosy, sexual

immorality which should attract the

censor’s scissors but how the theme

is handled by the producer. It

must, however, be remembered that

the cinematograph is a powerful

medium and its appeal is different.

The horrors of war as depicted in

the famous etching of Goya do not

horrify one so much as the same

scenes rendered in colour and with

sound and movement would do. We may

view a documentary on the erotic

tableaux from our ancient temples

with equanimity of read the

Kamasutra but documentary from them

as a practical sexual guide would

be abhorrent.

51. We have said all this to show

that the items mentioned in the

directions are not by themselves

defective. We have adhered to the

43 points of T.P. O’ Connor framed

in 1918 and have made a

comprehensive list of what may not

be shown. Parliament has left this

task to the Central Government and

in out opinion, this could be done,

But Parliament has not legislated

enough, not has the Central

Government filled in the gap.

Neither has separated the artistic

and the socially valuable from that

which is deliberately indecent,

obscene, horrifying or corrupting.

They have not indicated the need of

society and the freedom of the

individual. They have thought more

of the depraved and less of the

ordinary moral man. In their desire

to keep films from the abnormal,

they have excluded the moral. They

have attempted to bring down the

public motion picture to the level

of home movies.”

In Raj Kapoor & Ors. vs. State & Ors., 1980 (1) S.C.C. 43, this Court was dealing with pro bono publico prosecution against the producer, actors and others connected with a film called “Satyem”, Sivam, Sundaram” on the ground of Prurience, moral depravity and shocking erosion of public decency. A petition to quash the proceedings was moved and procedural complications brought the matter to this Court. One of the questions considered was: when can a film to be publicly exhibited be castigated as prurient and obscene and violative of norms against venereal depravity. Krishna Iyer, J., speaking for the Court said,

“Art, morals and law’s manacles on

aesthetics are sensitive subject

where jurisprudence meets other

social sciences and never goes

alone to bark and bite because

State-made strait-jacket is an

inhibitive prescription for a free

country unless enlightened society

actively participates in the

administration of justice to

esthetics.

9. The world’s greatest

paintings, sculptures, songs and

dances, India’s lustrous heritage,

the Konaraks and Khajurahos, lofty

epics, luscious in patches, may be

asphyxiated by law, if prudes and

prigs and State moralists prescribe

paradigms and prescribe

heterodoxies..

14. I am satisfied that the Film

Censor Board, acting under Section

5-a, is specially entrusted to

screen off the silver screen

pictures with offensively invade or

deprave public morals through over-

sex. There is no doubt – and

Counsel no both sides agree 0 that

a certificate by a high-powered

Board of Censors with specialised

composition and statutory mandate

is not a piece of utter

inconsequence. It is relevant

material, important in its impact,

though not infallible in its

verdict. But the Court is not

barred from trying the case because

the certificate is not conclusive.

Nevertheless, the magistrate shall

not brush aside what another

tribunal has, for similar purpose,

found. May be, even a rebuttable

presumption arises in favour of the

statutory certificate but could be

negatived by positive evidence. An

act of recognition of moral

worthiness by a statutory agency is

not opinion evidence but an

instance or transaction where the

fact in issue has been asserted,

recognised or affirmed.

15. I am not persuaded that once a

certificate under the Cinematograph

Act is issued the Penal Code, Pro

tanto, will hang limp. The court

will examine the film and judge

whether its public display, in the

given time and clime, so breaches

public morals or depraves basic

decency as to offend the penal

provisions. Statutory expressions

are not petrified by time but must

be updated by changing ethos even

as popular ethics are not absolutes

but abide and evolve as community

consciousness enlivens and

escalates. Surely, the satwa of

society must rise progressively if

mankind is to move towards its

timeless destiny and this can be

guaranteed only if the ultimate

value-vision is rooted in the

unchanging basics, Truth- Goodness-

Beauty, Satyam, Sivam, Sundaram.

The relation between Reality and

Relativity must haunt the court’s

evaluation of obscenity, expressed

in society’s pervasive humanity,

not law’s penal prescriptions.

Social scientists and spiritual

scientists will broadly agree that

man lives not alone by mystic

squints, ascetic chants and austere

abnegation but by luscious love of

Beauty, sensuous joy of

companionship and moderate non-

denial of normal demands of the

flesh. Extremes and excesses

boomerang although some crazy

artists and film directors do

practise Oscar Wilde’s observation

: “Moderation is a fatal thing.

Nothing succeeds like excess”

In Samaresh Bose and an. vs. Amal Mitra and anr., 1985 (4) S.C.C. 289, this Court was concerned with a novel entitled “Prajapati”; it was published in Sarodiya Desh, which was read by Bengalis of both sexes and almost of all goes all over India. A complaint was lodged that the novel was obscene and had the tendency to corrupt the morals of its readers. This Court said :

” A vulgar writing is not

necessarily obscene. Vulgarity

arouses a feeling of disgust and

revulsion and also boredom but does

not have the effect of depraving,

debasing and corrupting the morals

of any reader of the novel, whereas

obscenity has the tendency to

deprave and corrupt those whose

minds are open to such immoral

influences. We may observe that

characters like Sukhen, Shikha, the

father and the brothers of Sukhen,

the business executives and others

portrayed in the book are not just

figments of the author’s

imagination, Such characters are

often to be seen in real life in

the society. The author who is a

powerful writer has used his skill

in focussing the attention of the

readers on such characters in

society and to describe the

situation more eloquently has had

used unconventional and slang words

so that in the light of the

author’s understanding, the

appropriate emphasis is there on

the problems. If we place ourselves

in the position of the author and

judge the novel from his point of

view, we find that the author

intends to expose various evils and

ills pervading the society and to

pose with particular emphasis the

problems which ail and afflict the

society in various spheres. He has

used his own technique, skill and

choice of words which may in his

opinion, serve properly the purpose

of the novel. If we place ourselves

in the position of readers, who are

likely to read this book, and we

must not forget that in this class

of readers there will probably be

readers of both sexes and of all

ages between teenagers and the

aged, we feel that the readers as a

class will read the book with a

sense of shock, and disgust and we

do not think that any reader on

reading this book would become

depraved, debased and encouraged to

lasciviousness. It is quite

possible that they come across such

characters and such situations in

life and have faced them or may

have to face them in life. On a

very anxious consideration and

after carefully applying our

judicial mind in making an

objective assessment of the novel

we do not think that it can be said

with any assurance that the novel

is obscene merely because slang and

unconventional words have been used

in the book in which there have

been emphasis on sex and

description of female bodies and

there are the narrations of

feelings, thoughts and actions in

vulgar language. Some portions of

the book may appear to be vulgar

and readers of cultured and refined

taste may feel shocked and

disgusted. Equally in some

portions, the words used and

description give may not appear to

be in proper taste. In some places

there may have been an exhibition

of bat taste leaving it to the

readers of experience and maturity

to draw the necessary inference but

certainly not sufficient to bring

home to the adolescents any

suggestion which is depraving or

lascivious. We have to bear in mind

that the author has written this

novel which came to be published in

the Srodiya Desh for all classes of

readers and if cannot be right to

insist that the standard should

always be for the writer to see

that the adolescent may not be

brought into contract with sex. If

a reference to sex by itself in any

novel fit to be read by

adolescents, adolescents will not

be in a position to read any novel

and “will have to read books which

are purely religious”.”

In The State of Bihar vs. Shailabala Devi, 1952 S.C.R. Mahajan, J. said that a writing had to be considered as a whole and in a fair and free and liberal spirit, not dwelling to much upon isolated passages or upon a strong word here and there. and an endeavour had to be made together the general effect which the whole composition would have not the mind of the public. Mukherjee, J., concurring with Mahajan, J., observed that the writing had to be looked at as a whole without laying stress on isolated passages or particular expressions used here and there and that the Court had to take unto consideration what effect the writing was likely to produce on the minds of the readers for whom the publication was intended. account had also to be taken of the place, circumstances and occasion of the publication, as a clear appreciation of the background in which the words were used was of very great assistance in enabling the court to view them in their proper perspective. In Sakal Papers (P) Ltd. and Ors. vs. The Union of India, 1962 (3) S.C.R. 842, a Constitution Bench held that the only restrictions which can be imposed on the rights of an individual under Article 19(1)(a) were those which clause (2) of Article 19 permitted and no other. This was reiterated in Life Insurance Corporation of India vs. Proof. Manubhai d. Shah, 1992 (3) S.C.C. 637. The guidelines aforementioned have been carefully drawn. They require the authorities concerned with film certification to be responsive to the values and standards of society and take note of social changes. They are required to ensure that ‘artistic expression and creative freedom are not unduly curbed”. The film must be “judged in its entirety from the point of view of its over-all impact”. It must also be judged in the light of the period depicted and the contemporary standards of the people to whom it relates, but it must not deprave the morality of the audience. Clause * requires that human sensibilities are not offended by vulgarity, obscenity or depravity, that scenes degrading or denigrating woman are not presented an scenes of sexual violence against women are avoided, but if such scenes are germane to the theme, they be reduced to a minimum and not particularised.

The guidelines are broad standards. They cannot be read as one would read a statue. Within the breath of their parameters the certification authorities have discretion. The specific sub-clauses of clause 2 of the guidelines cannot overweigh the sweep of clauses 1 and 3 and, indeed, of sub-clause (ix) of clause (2). Where the theme is of social relevance, it must be allowed to prevail. Such a theme does not offend human sensibilities nor extol the degradation or denigration of women. It is to this end that sub-clause (ix) of clause 2 permits scenes of sexual violence against women, reduced to a minimum and without details, if relevant to the theme. What minimum and lack of details should be is left to the good sense of the certification authorities, to be determined in the light of the relevance of the social theme of the film. ‘Bandit Queen’ is the story of a village child exposed from an early age to the brutality and lust of man . Married of to a man old enough to be her father she is beaten and raped. The village boys make advances which she repulses; Nut the village panchayat finds her guilty of the enticement of a village by because he is of high caste and she has to leave the village. She is arrested, and in the police station filthily abused. Those who stand bail for her dos to satisfy their lust. She is kidnapped and raped. during an act of brutality the rapist is shot dead and she find a ally in her rescuer. With his assistance she beats up her husband, violently, her rescuer is shot dead by one whose advances she has spurned. She is gang-raped by the rescuer’s assailant and his accomplices and they humiliate her in the light of the village: a hundred men stand in a circle around the village well and was the humiliation, her being stripped naked and walked around the circle and then made to draw water. And not one of the Villagers helps her. She burns with anger, shame and the urge for vengeance. She gets it, and kills many Thakurs too. It is not a pretty story. There are no syrupy songs or pirouetting round trees. It is the serious and sad story of a worm turning: a village born female. becoming a dreaded dacoit. An innocent who turns into a vicious criminal because lust and brutality have affected her psyche so. The film levels an accusing finger at members of society who had tormented Phoolan Devi and driven her to become a dreaded dacoit filled with the desire to revenge. It is in this light that the individual scenes have to be viewed.

First, the scene where she is humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. is intended by those who strip her to demean her. The effect of so doing upon her could hardly have been better conveyed than by explicitly showing the scene. the object of doing so was not to titillate the cinema-goer’s lust but to arouse in him sympathy for the victim and disgust for the perpetrators. The revulsion that the Tribunal referred to was not at Phoolan Devi’s nudity but at the sadism and heartlessness of those who had stripped her naked to rob her of every shared of dignity, Nakedness does not always arouse the baser incident. The reference by the Tribunal to the film ‘Schindler’s List’ was apt. shown frontally, being led into the gas chambers of a Nazi concentration camp. Not only are they about to but they have been stripped in their last moments of the basic dignity of human beings. Tears are a likely reaction; pity, horror and a fellow feeling of shame are certain, except in the pervert or to assuage the susceptibilities of the over- sensitive. ‘Bandit Queen’ tells a powerful human story and to that story the scene of Phoolan Devi’s enforced naked parade is central. It helps to explain why Phoolan Devi became what she die : her rage and vendetta against the society what had heaped indignities upon her. The rape scene also helps to explain why Phoolan Devi become what she did. Rape is crude and its crudity is what the rapist’s bouncing bare posterior is meant to illustrate. Rape and sex are not being glorified in the film. Quite the contrary. It shows what a terrible, and terrifying, effect rape and lust can have upon the victim. It focuses of on the trauma and emotional turmoil of the victim to evoke sympathy for her and disgust for the rapist.

Too much need not, we think, be made of a few swear words the like of which can be heard every day in every city, town and village street. No adult would be tempted to use them because they are used in this film. In sum, we should recognise the message of a serious film and apply this test to the individual scenes thereof : do they advance the message ? If they do they should be left alone, with only the caution of an ‘A” certificate. Adult Indian citizens as a whole may be relied upon to comprehend intelligently the message and react to it, not to the possible titillation of some particular scene. A film that illustrates the consequences of a social evil necessarily must show that social evil. The guidelines must be interpreted in that light. No film that extols the social evil or encourages it is permissible, but a film that carries the message that the social evil is evil cannot be made impermissible on the ground that it depicts the social evil. At the same time, the depiction must be just sufficient for the purpose of the film. The drawing of the line is best left to the sensibilities of the expert Tribunal. the Tribunal is multi-member body. It si comprised of persons who gauge public reactions to film and, except in case of stark breach of guidelines, should be permitted to go about its task.

In the present case, apart from the Chairman, three members of the Tribunal were woman. It is hardly to supposed that three women would permit a film be screened which denigrates women, insults India womanhood or is obscene or pornographic. It would appear from its order that the Tribunal took the view that it would do women some good to see the film.

We are of the opinion that the Tribunal had viewed the film in true perspective and had, in compliance with the requirements of the guidelines, granted to the film an ‘A’ certificate subject to the conditions it stated. We think that the High Court ought not to have entertained the 1st respondent’s writ petition impugning the grant of the certificate based as it was principally upon the slurs allegedly cast by the film on the Gujjar community. We find that the judgment under appeal does not take due not of the theme of the film and the fact that it condemns rape and the degradation of and violence upon women by showing their effect upon a village child, transforming her to a cruel dacoit obsessed with wreaking vengeance upon a society that has caused her so much psychological and physical hurt, and that the scenes of nudity and rape and the use of expletives, so far as the Tribunal had permitted them, were in aid of the theme and intended not to arouse prurient or lascivious thoughts but revulsion against the perpetrators and pity for the victim.

The appeal are allowed. The judgment and order appeal is set aside. The 1st respondent’s writ petition is dismissed. The “a” certificate issued to the film “Bandit Queen” upon the conditions imposed by the Appellate Tribunal is restored.

The 1st respondent shall pay to each appellant the costs of his appeal.

Comment : This case refle…

Comment : This case reflects that the Indian Courts have insisted on requirement of guilty knowledge for prosecution under S.494 for bigamy. In this particular case – the parties were under a bona fide belief of having divorced and lawfully being able to marry again. As a matter of fact their divorce deed was ineffectual under the law. The Husband was acquitted – holding that though S.494 does not expressly require the Mental Element/MENS REA still the purpose of statute won’t be served (test of necessary implication) by excluding requirement of MENS REA. Held not liable for bigamy

Kerala High Court
Sankaran Sukumaran vs Krishnan Saraswathy And Anr. on 2 December, 1983
Equivalent citations: 1984 CriLJ 317
Author: U Bhat
Bench: U Bhat

ORDER

U.L. Bhat, J.

1. The first respondent herein, claiming to be the legally wedded wife of the revision petitioner (first accused) and alleging that during the subsistence of the marriage revision petitioner married the second accused, which marriage is, but for the first marriage a valid marriage, filed a complaint against both the accused alleging the commission of an offence under Section 494, I.P.C., and Section 114, I. P. C. The accused pleaded not guilty. Prosecution examined four witnesses and marked Ext. P. 1. The defence marked Exts. D1 and D2. The trial Court held that both the marriages have been proved, that the ingredients of the offence under Section 494. I. P. C, have been proved against the first accused and accordingly convicted him thereunder and sentenced him to undergo simple imprisonment for six months. The second accused has been acquitted on the ground that she must have acted under the belief that the first marriage had been dissolved under Ext, D2. While the appellate Court confirmed the conviction against the first accused, the sentence has been reduced to simple imprisonment for one month. The first accused has preferred this revision petition.

2. I have been taken through the evidence in the case. The evidence of the complainant examined as P. W. 1 and the evidence of P. W. 2 in the light of the averments, in Ext. D2. which is admittedly a document entered into between P. W. 1. and the first accused, clearly establish that the first accused lawfully married P.W. 1 in accordance with the customary ceremonies. Admittedly, the parties entered into Ext, D2 divorce deed, The divorce purported to have been effected under Ext.D2 does not have the sanction of law and is therefore not sufficient to put an end to the marital tie. It must follow that in the eye of law the first marriage continued to subsist in spite of Ext. D2. The evidence of P.Ws. 3 and 4 in the light of Ext. P1 and Ext. D1 clearly proves that the first accused entered into customary marriage with the second accused and that was during the subsistence of the first, marriage. The findings entered into by the Courts below in this behalf are not liable to be interfered with.

3. The main contention urged by the learned Counsel for the revision petitioner is that the offence under Section 494, I. P. C, requires mens rea, that is, knowledge of the subsistence of the first marriage and the fact that, the first accused and P. W. 1 entered into Ext. D2 divorce deed would clearly show that the first accused was under the bona fide belief that the marital tie had been severed. If, in these circumstances, he contracted the second marriage, he could not be guilty of the offence and that too because of the absence of mens rea. The answer of the learned Counsel for the first respondent is that Section 494, I. P. C, does not require proof of mens rea and the offence is complete irrespective of knowledge or otherwise of the subsistence of the first marriage. While learned Counsel, for the revision petitioner sought to place reliance on earlier decisions of this Court, according to learned Counsel for the first respondent, the decisions require re-consideration.

4. The Travancore-Cochin High Court had occasion to consider this question in Janaki Amma v. Padmanabhan Nair 1954 Ker LT 977. In that case, the husband in the first marriage filed a petition in the Munsiff’s Court for dissolution of marriage and a final order, was passed dissolving the marriage. Thereafter, he entered into a second marriage. After the second marriage, the first wife filed an appeal in the High Court against the decision of the Munsiffs Court and the order dissolving the marriage was set aside and the case was remanded and ultimately the trial Court dismissed the petition. Sankaran. J., (as he then was) after considering the impact of the decisions in Dolman’s case (1949) 1 All ER 813) and Karim Bakhsh’s case 1918 46 Ind Cas 40 : 1918-19 Cri LJ 680 (Lah) and after analysing the ingredients of the offence under Section 497 Travancore Penal Code (corresponding to Section 494 I. P. C) and the facts of the case, held that there was nothing to suggest that when the second marriage, was entered into, the parties had any fraudulent or dishonest intention or that they had any guilty knowledge that the order of the Munsiffs Court dissolving the marriage was likely to be upset by superior Courts. The Court accepted the plea of the husband that he entered into the second marriage in all good faith and with the honest impression that his earlier marriage with the complainant had been put an end to by Court order, as a valid defence.

5. The earliest decision on the point by this Court is the decision in Kochu Mohmmad Kunju Ismail v. Mohammad Kadeeja Umma 1958 Ker LT 1042 : 1959 Cri LJ 591. The first wife in that case filed a suit for recovery of mahar etc., on the allegation that she had been divorced by her husband. The Court found against the divorce but decreed the suit for value of movables, The husband filed a suit for restitution of conjugal rights. The wife resisted the suit raising the plea of divorce and alternatively on grounds of cruelty. The suit was dismissed on the alternative plea at the same time rejecting the plea of divorce. Thereupon, the wife sent a registered letter to the husband intimating the fact of her having effected divorce ‘fasakh’. The letter was refused. A second and similar letter also was refused. Thereupon, she married again and the first husband filed a complaint alleging commission of an offence under Section 494, I. P. C. It was contended that the divorce effected by the wife was not valid. Overruling this contention, a Division Bench of this Court held that the divorce was valid and therefore the first marriage was not subsisting and an offence under Section 494. I. P. C, had not been made out. Alternatively, it was argued before the Court that mens rea was necessary for an offence under Section 494, I. P. C, and the wife had no mens rea. Of course, this question did not directly arise for consideration in view of the finding that the divorce was valid but nevertheless, the Division Bench proceeded to consider the question. The Court held that in the absence of words in the statute dispensing with proof of mens rea, it must follow that the crime can be committed only with requisite mens rea and if the person charged believed that he was legally free to marry again, it cannot be said that the crime was committed with the requisite mens rea. The Division Bench quoted with approval the observations in Tolson’s case (1889) 23 Q.B.D. 168, Dolman’s case (1949) 1 All ER 813 and Janaki Amma’s case 1954 Ker LT

977.

6. The only other decision of this Court on this point is the one in Ahmed Koya v. Amina Beebi 1972 Ker LT 1069. The husband in that case, it appears, embraced Ahamedeeya faith. The Valia Khasi of Kozhikode issued a publication to the effect that such a marriage would stand dissolved the moment the husband changed his faith. In due course, the wife married again and the first husband filed a complaint. One of the questions which arose for consideration was whether the conversion to Ahamedeeya faith involved a dissolution of the marriage and the Court took the view that it did not. The further question which was considered was whether mens rea was necessary in regard to the offence. Following the decisions mentioned above and dissenting from a decision, of the Madras High Court in re-Arcot Citizen Bank Ltd. v. Arcot , Sadasivan, J., held that mens rea was necessary and where the second marriage was entered into in the bona fide belief that she was doing the right thing as her former marriage was not subsisting, she should be exonerated from liability under Section 494, I. P. C.

7. In Tolson’s case 1889-23 Q.B.D. 168, the wife and her father who made enquiries about the husband came to know from the husband’s elder brother and others that he had been lost in a vessel bound for America that went down with all hands on board. Believing herself to be a widow, she married again and subsequently faced prosecution when the first husband returned to England. The case was stated by Stephen, J., and reserved for consideration of all the Judges. In five separate judgments, the majority held that it was a fit case for reversing the conviction while the minority in three separate judgments opted to sustain the conviction. The provision of law which came up for consideration at the hands of the Queen’s Division Bench was 24 & 25 Vict. c. 100, Section 57, which read as follows:

Whoever, being married, shall marry any other person during the life of the former husband or wife shall be guilty of felony, punishable with penal servitude for not more than seven years or imprisonment with or without hard labour for not more than two years”, with a proviso that “nothing in this Act shall extend to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years last past, and shall not have been known by such person to be living within that time.

It was undoubtedly a principle of English original law that ordinarily there must be a mind at fault before there can be a crime. That, of course, is not an inflexible rule, and a statute may relate to such a subject-matter and may be so framed as to indicate whether there has been any intention to break the law or otherwise to do wrong or not. It was recognised that there was a long body of municipal law which was so conceived as creating an absolute liability. The interpretation of statute in this behalf depends on the subject-matter of the enactment and the various circumstances that may make one construction or the other reasonable or unreasonable. If the same language could be legitimately construed in two opposite senses, it is obvious that assistance must be sought from other quarters, that is, all circumstances should be taken into consideration. In the circumstances, it was held that there was nothing to prevent the application of what was certainly a normal rule of construction in the case of a statute involving an offence entailing severe and rigorous punishments. Prima facie, the statute was satisfied when the case was brought within its limits and it lay upon the accused to prove that the violation of the law which had taken place had been committed accidentally or innocently so far as he was concerned. Adverting to the proviso, it was held to be not providing the sole excuse for the offence and it specified only one particular case. It was also opined that the proviso had a wider amplitude and adverted to mere absence of the spouses and did not involve a bona fide belief at all. So the proviso did not exclude the defence of bona fide belief. The object of the proviso was not to deny any other defence.

8. The view taken in Tolson’s case 1889-23 QBD 168 was followed in Dolman’s case 1949-1 All ER 813. In that case, the accused pleaded that he believed that the first wife had been previously married and therefore \ his first marriage was invalid. It was held that bigamy like many other offences required that there shall be what is known as guilty mind. There must be an appreciation that crime was being committed, though specific intention was unnecessary. But the accused must have culpable guilty knowledge that he was doing something unlawful. It was open to him to defend himself by showing that he had reasonable cause to believe that he had no first wife living. If under that belief he entered into a second marriage, there would not be guilty knowledge and appreciation of wrong doing. Though the statute did not say “knowingly or unlawfully” the accused did not commit the offence unless he realised, that he was committing such an offence. It would not be an offence if the accused succeeded in proving that the first marriage was really null and void. Equally, if he honestly believed the first marriage to be null and void, it would be a good defence.

9. I am not persuaded to agree that the view taken by this Court in the earlier decisions requires reconsideration. Generally speaking, the offences in the Indian Penal Code involve a degree of mens rea such as intention, knowledge, recklessness or the like. If the particular provision specifically refers to mens rea, the matter is put beyond doubt. Even where the particular provision does not take in any words specifically indicative of mens rea, the scheme of the provision and the words used in the provision might imply the requirement of mens rea. Section 494, I. P. C., makes it clear that the second marriage must he contracted by a person having a husband or wife living. In other words, he must have a spouse and the spouse must he living, that is, the person living must have the status of a spouse. There may be circumstances where a person may have reason to believe and in fact believes that the spouse was no. longer living or that the marriage was not subsisting. To hold that even knowledge would not be required for the offence, would be to punish a person who is really innocent The punishment involved is of a drastic nature namely, imprisonment of either description for a term which may extend to seven years and also fine. There is (nothing in the words used in the provision to contraindicate the necessity of guilty knowledge. It cannot be said that the section postulates an absolute liability as in the case of certain later statutes involving socio-economic offences. The legislature itself contemplated exceptions to the rule. The first exception relates to a case where the first marriage has been declared void by a competent court. ‘ The second exception however, does not relate to a case of a marriage declared to be void or the case of one of the spouses being dead it mentions the case of the continuous absence of a spouse for the space of seven years and not heard of by the person concerned as being alive within that time. Strictly speaking, it is not a case of a person who in law can be presumed to be dead. Nevertheless, the legislature took care to create an exception in that behalf. Thus, this is not a case of law having created an absolute liability. In the nature of the provisions of the section, the punishment involved and the exceptions created, the absence of any words to indicate that guilty knowledge was not required, I respectfully agree with the view taken in the above decisions that guilty knowledge is a necessary ingredient. Of course, in the generality of cases, the facts and circumstances would clearly establish a guilty knowledge. But it is open to the accused to place before the court facts and circumstances from which the absence of guilty knowledge or bona fide belief about non-subsistence of the first marriage could be inferred; and established and in such a case it cannot be said that the offence under Section 494, I. P. C. is made out.

10. Exhibit D2. admittedly, is a divorce deed entered into between the parties. It recites that the parties were residing separately on account of differences between them and they were convinced that it was not possible for them to live together and they resolved to terminate the marital tie and they purported to do so under the document. They further stated that by virtue of this document, each of them would be at liberty to marry again. Divorce by a registered document is not known to law governing the parties. Therefore, in the eye of law Ext. D2 was not sufficient to put, an end to the marital tie. No doubt, ignorance of law is no excuse. But this case involves not merely ignorance of law but a belief on the basis of certain facts and circumstances within the knowledge of the parties. The recitals in Ext. D2 would clearly show that the parties honestly believed that they were no longer husband and wife and that they were at liberty to marry again. In these circumstances, it has to be held, that the first accused, when he contracted the second marriage, acted on the bona fide belief that his marital tie with P. W. 1 had been severed under Ext. D2 and he was at liberty to marry again, and that thereby he was not doing a wrong act. The benefit of doubt in this behalf must certainly go to him.

11. In the result, the conviction and sentence entered against the revision petitioner are set aside. He is acquitted of the charge against him. His bail bonds are cancelled. The revision petition is allowed in this manner.