Special Leave Petition Criminal
S.L.P. (Crl.) No. 3672 of 2012 - Vipul Shital Prasad Agarwal Vs. State of Gujarat, 2012 (4) KLT SN 144 (C.No.138)posted Feb 19, 2013, 12:53 AM by Law Kerala [ updated Feb 19, 2013, 12:53 AM ]
(2012) 39 SCD 715
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
ALTAMAS KABIR, CJI, SURINDER SINGH NIJJAR AND J. CHELAMESWAR
November 6, 2012
SPECIAL LEAVE PETITION (CRL.) No.3672 of 2012
VIPUL SHITAL PRASAD AGARWAL … PETITIONER
STATE OF GUJARAT & ANR. … RESPONDENTS
Code of Criminal Procedure, 1973 – Section 439, 167(2), 173(2) and (8) - FIR - Charge-sheet submitted - Direction by Court for further investigation by CBI - CBI registering another FIR - Application for bail on default ground - The mere undertaking of a further investigation either by the Investigating Officer on his own or upon the directions of the superior police officer or pursuant to a direction by the Magistrate concerned to whom the report is forwarded does not mean that the report submitted u/s 173(2) is abandoned or rejected.
Held:- Even the fact that the CBI purported to have registered a "fresh FIR", does not lead to conclusion in law that the earlier report or the material collected by the State Police (CID) on the basis of which they filed the charge-sheet ceased to exist. It only demonstrates the administrative practice of the CBI. Notwithstanding the practice of the CBI to register a "fresh FIR", the investigation undertaken by the CBI is in the nature of further investigation u/s 173 (8) of the CrPC pursuant to the direction of the Court.
J U D G M E N T
ALTAMA S KABIR , CJI .
1. This Special Leave Petition is directed against the judgment and order dated 20th March, 2012, passed by the Gujarat High Court dismissing the petition filed by the Petitioner, Dr. Vipul Shital Prasad Agarwal, under Articles 226 and 227 of the Constitution, read with Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), being SCRMA No.2698 of 2011.
2. There are certain special features in this case which need to be recorded in order to decide this matter.
3. The Petitioner was at the relevant time posted as Superintendent of Police, Banaskantha, Gujarat. On 28th December, 2006, one Tulsiram Prajapati was killed in an encounter and a First Information Report (F.I.R.), being I.C.R.No.115 of 2006, was registered with the Ambaji Police Station, Banaskantha, Gujarat, against unidentified persons under Sections 307, 427 and 34 of the Indian Penal Code, 1860 (IPC), Section 25(1)(A) of the Arms Act, 1959, and Section 135 of the Bombay Police Act, 1951.
4. In 2007, Nirmala Bai, the mother of the deceased, filed Writ Petition (Crl.) No.115 of 2007, before this Court praying for an inquiry into the incident by the Central Bureau of Investigation (C.B.I.), and while the same was pending, the prosecution, upon completion of investigation, added Sections 302, 364, 307, 333, 334, 427, 365, 368, 193, 197, 201, 120-B, 471 read with Section 34 I.P.C., together with Section 25(1)(a) and 27 of the Arms Act, 1959, as also Section 135 of the Bombay Police Act, against 12 police officers, including the Petitioner. Consequent thereupon, the Petitioner was arrested by the C.I.D. crime, on 3rd May, 2010, and charge-sheet was, thereafter, filed against the accused persons, including the Petitioner, on 30th July, 2010.
5. One of the strange features of this case, therefore, is that in the case which was registered against the victim, 12 police officers, including the Petitioner, came to be arraigned as accused in what was alleged to be a fake encounter. However, the fact remains that F.I.R. No.115 of 2006 was lodged with the Ambaji Police Station on 28th December, 2006, resulting in the arrest of the Petitioner by the C.I.D. crime, on 3rd May, 2010, and the filing of charge-sheet on 30th July, 2010, within 90 days of his arrest.
6. While considering the writ petition filed by the mother of the deceased (Writ Petition (Crl.) No.115 of 2007), this Court, by its judgment and order 8th April, 2011, refused to accept the investigation conducted and completed by the State C.I.D. and directed as follows :
“39. In view of the above discussion, the Police Authorities of the Gujarat State are directed to handover all the records of the present case to the CBI within two weeks from this date and the CBI shall investigate all aspects of the case relating to the killing of Tulsiram Prajapati and file a report to the concerned court/special court having jurisdiction within a period of six months from the date of taking over of the investigation from the state Police Authorities. We also direct the Police Authorities of the state of Gujarat, Rajasthan and Andhra Pradesh to cooperate with the CBI Authorities in conducting the investigation.”
7. We have intentionally quoted the aforesaid direction of this Court, since the main plank of the submissions made on behalf of the Petitioner in this Special Leave Petition depends on an interpretation thereof.
8. Pursuant to the directions given by this Court, the C.B.I. registered a separate F.I.R. on 29th April, 2011, being R.C.-3(S)/2011/Mumbai dated 29th April, 2011. On 31st May, 2011, the C.B.I. applied before the Court of Sessions Judge Palanpur, Banaskantha, Gujarat, in Sessions Case No.58 of 2010, inter alia, for the following directions :
“It is, therefore, humbly prayed that keeping in view the orders dated 08.04.2011 of the Hon’ble Supreme Court of India, the articles submitted by the Gujarat Police as per the list enclosed (as desired by this Hon’ble Court) along with the Charge Sheet No.50/2010 dated 30.07.2010 vide CC No.1439/10 dated 30.07.2010 and supplementary Charge Sheets in case FIR No.115/2006 dated 28.12.2006 of PS Ambaji, District Banaskantha may be released and handed over to the CBI for the purpose of fresh investigation.
It is further prayed that in the light of order of the Hon’ble Supreme Court of India, no further proceeding may be allowed in the case till the investigation of CBI is finalized. And for this the applicant shall ever pray.”
9. The said application was allowed by the Sessions Judge on 9th June, 2011.
10. Since the investigation was not completed and the Petitioner had been in custody for a long time, an application for bail was moved on his behalf in the Court of learned Sessions Judge, Palanpur, on 16th August, 2011, who rejected the same on the ground that the application ought to have been moved before the Judicial Magistrate, First Class, Danta, and not before the Sessions Court.
11. Having regard to the order of the learned Sessions Judge, the Petitioner moved an application before the Judicial Magistrate, First Class, Danta, on 2nd September, 2011, for bail, which was rejected on 7th October, 2011. The Petitioner then moved the Gujarat High Court by way of Special Criminal Application No.2698 of 2011, for quashing and setting aside the aforesaid judgment and order dated 7th October, 2011, passed by the Judicial Magistrate, First Class, rejecting his prayer for bail. Another application for regular bail, being Criminal Misc. Application No.04 of 2012, was also filed on behalf of the Petitioner before the Sessions Judge, Palanpur, on 2nd January, 2012, on the limited ground of delay in the trial. The said bail application was dismissed by the 2nd Additional Sessions Judge on 27th February, 2012. The High Court also rejected the Petitioner’s application challenging the order of the Magistrate by its order dated 20th March, 2012. On 9th April, 2012, the Petitioner’s Criminal Misc. Application No.4729 of 2012, challenging the order of the 2nd Additional Sessions Judge dated 27th February, 2012, was dismissed by the High Court. It is against the said order that the present Special Leave Petition has been filed.
12. The major thrust of the submissions made by Mr. Sushil Kumar, learned Senior Advocate, appearing for the Petitioner, was that the Petitioner was entitled to the benefit of statutory bail in terms of Sub- Section (2) of Section 167 Cr.P.C. Learned counsel urged that since after registering a fresh F.I.R. and commencing of fresh investigation, as directed by this Court, the C.B.I. had failed to file charge-sheet pursuant to such F.I.R., within the stipulated period of 90 days, the Petitioner was entitled to bail on account of such default in view of the provisions of Sub-Section (2) of Section 167 Cr.P.C. Learned counsel also emphasized that the Petitioner was in custody since his arrest on 3rd May, 2010, and on the other hand, the trial was being delayed.
13. Mr. Sushil Kumar urged that since the earlier investigation by the State police had not been accepted by this Court and the C.B.I. was directed to conduct a fresh investigation, it would necessarily entail that the charge-sheet filed on the basis of the initial inquiry was also rejected by this Court, though not in explicit terms. Mr. Sushil Kumar submitted that there could not be two charge-sheets arising out of the two FIRs in respect of a single incident and charge would have to be framed on the basis of one of the said two charge-sheets filed and, since the first investigation had not been accepted, the logical consequence would be that the first charge-sheet also stood quashed which would give the second charge-sheet due legitimacy. Accordingly, since the charge-sheet had not been filed in respect of the second F.I.R. within a period of 90 days, as stipulated under Section 167(2) Cr.P.C., the Petitioner was entitled to be released on default bail, as a matter of right.
14. Mr. Sushil Kumar made it clear that he was basing his submissions mainly on the ground available under Section 167(2) Cr.P.C. and the fact that the trial had been delayed for a long period during which the Petitioner has remained in custody.
15. Appearing for the C.B.I., Mr. Vivek Tankha, learned Senior Advocate, submitted that there was a basic fallacy in Mr. Sushil Kumar’s submissions since the Petitioner was arrested in connection with the first F.I.R., being No.115 of 2006, in which chargesheet had been filed within the stipulated period of 90 days and that he had not been arrested in connection with the second F.I.R. filed by the C.B.I. Accordingly, the benefit of default bail under Section 167(2) Cr.P.C. was not available to the Petitioner. Mr. Tankha also submitted that the investigation started by the C.B.I. was in continuation of the investigation initially commenced on the basis of F.I.R. No.115 of 2006 of Ambaji Police Station and that the lodging of a fresh F.I.R. by the C.B.I. was only for the purpose of enabling the C.B.I. to take over the investigation from the State police in terms of the directions given by this Court.
16. On the question of delay in the trial, Mr. Tankha pointed out that the same had been stayed at the instance of a co-accused and C.B.I., therefore, had no hand as far as delay of the trial is concerned. According to Mr. Tankha, in any event, charge-sheet had already been filed even on the basis of the second F.I.R., which would have to be treated as a supplementary charge-sheet to the original chargePage10 sheet filed in F.I.R. No.115 of 2006. Mr. Tankha pointed out that it was also significant that the prayer for default bail in terms of Section 167(2) Cr.P.C. had been made on behalf of the Petitioner in connection with F.I.R. No.115 of 2006, of Ambaji Police Station dated 28th December, 2006, and not in connection with F.I.R. No.RC-3(S)/2011/Mumbai dated 9th April, 2011, filed by the C.B.I.
17. Mr. Tankha, therefore, contended that the Special Leave Petition filed by the Petitioner was entirely misconceived and was liable to be dismissed.
18. We have carefully considered the submissions made on behalf of the respective parties and we have little hesitation in rejecting Mr. Sushil Kumar’s submissions. One of the most significant features of this case is that the prayer for default bail was made on behalf of the Petitioner in F.I.R.No.115 of 2006, lodged by the local police with the Ambaji Police Station, though the submissions in respect thereof have been made in connection with the subsequent F.I.R. lodged by the C.B.I. It is obvious that the Petitioner was fully aware of the situation while making the application for grant of bail, knowing that he was under arrest in connection with the first F.I.R. and not under the second F.I.R. lodged by the C.B.I. In the event the second investigation is treated to be a fresh investigation and the Petitioner had been arrested in connection therewith, the submissions made by Mr. Sushil Kumar would have been relevant. However, since the prayer for default bail was made in connection with F.I.R.No.115 of 2006, in which charge-sheet had been filed within the stipulated period of 90 days, the argument with regard to the default bail was not available to the Petitioner and such argument has, therefore, to be rejected. The other submission of Mr. Sushil Kumar that since a fresh investigation was directed to be conducted by this Court, the earlier charge-sheet must be deemed to have been quashed, has to be rejected also on the same ground.
19. Even on the question of delay in concluding the trial, such delay has not been caused by the prosecuting authorities, but by a co-accused and advantage thereof cannot be taken by the Petitioner. 20. Since no argument had been advanced on behalf of the Petitioner on the merits of the case, we also refrain from looking into the same and on the basis of our aforesaid observations, we are not convinced that the Special Leave Petition, along with the Criminal Miscellaneous Petition No.11364 of 2012, warrants any interference by this Court. The Special Leave Petition and the Criminal Miscellaneous Petition are, therefore, dismissed.
IN THE SUPREME COUR OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL MISCELLANEOUS PETITION NO.11364 OF 2012
SPECIAL LEAVE PETITION (CRL. ) NO.3672 OF 2012
Vipul Shital Prasad Agarwal
State of Gujarat & Another ….Respondents
J U D G M E N T
Chelameswar, J .
1. While I agree with the conclusion reached by Hon’ble the Chief Justice of India, I wish to add a few lines.
2. The necessary facts and submissions of the learned counsel for the petitioner are clearly set out in the judgment of my Lord the Chief Justice. I wish to deal with only one submission made on behalf of the petitioner - that the earlier judgment and order of this Court in Writ Petition (Criminal) No.115 of 2007 dated 8th April 2011 directing the Central Bureau of Investigation (CB) to conduct an investigation pertaining to all aspects of killing of Tulsiram Prajapati would necessarily mean that the charge-sheet filed by the Gujarat Police (CID) stood rejected. In my view, the submission is misconceived for the following reasons.
3. Section 173 of the Code of Criminal Procedure, 1973 (for short “the CrPC”) obligates the police investigating a case to make a report to the Magistrate to take cognizance of the offence which is subject matter of the investigation. Sub-section (2) indicates the various pieces of information which are required to be contained in the said report. Section 173(2)(i)(d) stipulates that the said report should state whether any offence appears to have been committed and, if so, by whom. If the Investigating Officer opines in the said report that an offence appears to have been committed by the persons named therein, he is also obliged to forward to the Magistrate all documents on which the prosecution proposes to rely along with the statements recorded under Section 161 of the CrPC of all persons whom the prosecution proposes to examine as witnesses. Sub-section (8) recognizes the authority of the Investigating Officer/Agency to make any further investigation in respect of any offence notwithstanding the fact that the report contemplated under sub-Section (2) of Section 173 had already been submitted. It may be worthwhile noticing that under sub-Section (3), even a superior police officer appointed under Section 158 of the CrPC could direct the Investigating Officer to make a further investigation pending any orders by the concerned Magistrate on the report submitted. It is settled law that a Magistrate to whom report is submitted under Section 173(2) can direct the Investigating Officer to make a further investigation into the matter.
4. In my opinion, the mere undertaking of a further investigation either by the Investigating Officer on his own or upon the directions of the superior police officer or pursuant to a direction by the concerned Magistrate to whom the report is forwarded does not mean that the report submitted under Section 173(2) is abandoned or rejected. It is only that either the Investigating Agency or the concerned Court is not completely satisfied with the material collected by the investigating agency and is of the opinion that possibly some more material is required to be collected in order to sustain the allegations of the commission of the offence indicated in the report.
5. Therefore, the submission of Mr. Sushil Kumar, learned senior advocate appearing for the petitioner, that the directions given by this Court earlier in Writ Petition (Criminal) No.115 of 2007 would necessarily mean that the charge-sheet submitted by the police stood implicitly rejected is without any basis in law and misconceived. Even the fact that the CBI purported to have registered a “fresh FIR”, in my opinion, does not lead to conclusion in law that the earlier report or the material collected by the Gujarat Police (CID) on the basis of which they filed the charge-sheet ceased to exist. It only demonstrates the administrative practice of the CBI.
6. In my view, notwithstanding the practice of the CBI to register a “fresh FIR”, the investigation undertaken by the CBI is in the nature of further investigation under Section 173 (8) of the CrPC pursuant to the direction of this Court.
 Section 173(2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating— (d) whether any offence appears to have been committed and, if so, by whom.
 Section 173(5). When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report—t (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.
 Section 173(8). Notwithstanding in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of' sub-section (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).
 Kashmeri Devi v. Delhi Administration & Another (1988 (Supp.) SCC 482 para 7 “7. Since according to the respondents charge-sheet has already been submitted to the Magistrate we direct the trial court before whom the charge-sheet has been submitted to exercise his powers under Section 173(8) CrPC to direct the Central Bureau of Investigation for proper and thorough investigation of the case. On issue of such direction the Central Bureau of Investigation will investigate the case in an independent and objective manner and it will further submit additional charge-sheet, if any, in accordance with law. The appeal stands disposed of accordingly.”
posted Jan 3, 2013, 9:00 AM by Law Kerala [ updated Jan 3, 2013, 9:19 AM ]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Dr. B.S. Chauhan and Jagdish Singh Khehar, JJ.
January 3, 2013.
SPECIAL LEAVE PETITION (CRL) NO.7532 OF 2012
N. Kannapan …. Petitioner
State (Union Territory) Andaman & Nicobar Islands …. Respondent
SPECIAL LEAVE PETITION (CRL.) No.8286 of 2012
R. Chidambaram …. Petitioner
State (Union Territory) Andaman & Nicobar Islands …. Respondent
SPECIAL LEAVE PETITION (CRL.) No.8730 of 2012
Sanjay Choudhury …. Petitioner
State (Union Territory) Andaman & Nicobar Islands …. Respondent
SPECIAL LEAVE PETITION (CRL.) No.8876 of 2012
S. Namochivayam (In Jail) …. Petitioner
State (Union Territory) Andaman & Nicobar Islands …. Respondent
Explosive Substances Act, 1908 – Bail Application - In the pleadings, and during the course of hearing, we were informed, that some of the accused are still absconding. Obviously all the accused are financially well placed. Releasing them from jail at the present juncture, when the prosecution has not even commenced to examine the main witnesses, could prove detrimental to the eventual outcome of the trial. Atleast till the culmination of the evidence of the material witnesses, it is not proper to order the release of the petitioners on bail.
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. On a complaint made by H.L. Tiwari FIR No.546 was registered at Police Station CCS, Port Blair on 21.6.2011. The FIR and the action taken thereupon indicate, that a cargo ship (christianed, Gati Zipp) had set sail from Chennai and was to reach Port Blair on 20.6.2011. It was alleged, that the aforesaid cargo ship was carrying cartons shipped by VMR Shipping Agency. It was also alleged, that the cartons of VMR Shipping Agency contained unauthorized substances. At the time of the receipt of the information, the cargo ship was allegedly berthed at Haddo Jetty, Port Blair. Based on the said information recorded in the First Information Report, a raiding party comprising of one Inspector, one Sub-Inspector, two Head Constables, two Constables, one police driver (of the rank of Head Constable) and one official photographer was organized. On reaching Haddo Jetty the raiding party associated with itself, one Sub Inspector, three Head Constables and one Constable of the SB-CID staff stationed there. Two independent persons Nikhi Sakar, a Tally Clerk at Port Blair and Manoj Kumar were also associated with the raiding party.
2. The raiding party, having reached Haddo Jetty, started looking for the cartons/containers shipped by VMR Shipping Agency, which had arrived at Port Blair in Gati Zipp. The raiding party identified a container belonging to VMR Shipping Agency, which had been unloaded from the concerned cargo ship (Gati Zipp). The container in question, was further being loaded into a truck bearing registration no.AN-01E-1847. G..S. Babuwas supervising the loading operations of the aforesaid container. As per the declaration in the manifest list, the carton in question, contained four drums of grease. The four drums found in the container were photographed by the official photographer. The said drums were then checked in the presence of independent witnesses. The alleged contents of the four drums (revealed upon search by the raiding party) are being summarized hereunder:
i) First drum: Three packets of grease, 406 pieces of gelatine sticks and 122 bundles of electronic detonators (each bundle containing 25 detonators, i.e., in all 3000 detonators).
ii) Second drum: 405 gelatine sticks and 120 bundles of electronic detonators (in all 3000 detonators)
iii) Third drum: 823 gelatine sticks
iv) Fourth drum: 823 gelatine sticks.
The drums as well as the explosive substances recovered from the drums, were counted and seized, in the presence of independent witnesses. Before that, five gelatine sticks were taken from the first drum and secured in a separate packet for chemical analysis. Likewise, five electronic detonators were taken from the first drum and secured in a separate packet for chemical examination. The person who was supervising the reloading of the container into the truck bearing registration no. AN-01E- 1847 allegedly identified himself as G.S. Babu. He also disclosed, that he was employed as Manager by VMR Shipping Agency.
3. With the assistance of G.S. Babu, and in the presence of the official photographer and the independent witnesses, the raiding party allegedly identified another container belonging to VMR Shipping Agency. The saidcarton/container had also been off-loaded from Gati Zipp. As per its declaration in the manifest list, the second carton, contained salt. The aforesaid container was also opened in the presence of independent witnesses. It was found, that the contents of the instant container were enclosed in a large plastic bag. The large plastic bag in turn contained smaller plastic bags. The small plastic bags had the inscription “imported coated drilled ammonium nitrate” and “net weight 50 kilograms” printed on them. 200 such small bags were allegedly found in the second container. The official photographer also clicked photographs of the contents of the second container. The aforesaid bags contained in all, 10,000 kgs of ammonium nitrate. The aforesaid ammonium nitrate was taken into possession. Two samples of the contents of the small bags, weighing 50 grams each, were taken for chemical analysis.
4. Based on the recovery of the aforesaid explosive substances, further investigations were carried out. These investigations allegedly revealed inter alia, the names of the petitioners before this Court. Consequent upon the discovery of the petitioners involvement with the consignment of unauthorized explosive substances, they were arrested. Applications filed by the petitioners for bail remained unsuccessful. The impugned orders in these petitions is the last such unsuccessful attempt, made on behalf of the petitioners. It is therefore, that the petitioners are now before us, praying for bail.
5. In order to support their claim for release on bail, it was the vehement contention of the learned counsel for S. Namochivayama (petitioner in SLP (Crl.) no.8876 of 2012), that the petitioner runs a groceryshop, and cannot be associated with the allegations narrated in the First Information Report, as also, the alleged recovery of explosive substances.
6. In so far as N. Kannapan, R. Chidambaram and Sanjay Choudhary [petitioners in SLP (Crl.) no. 7532 of 2012, SLP(Crl.) no. 8286 of 2012, and SLP (Crl.) no. 8730 of 2012, respectively] are concerned, the principal submission is, that they are all genuine quarry operators, possessing valid licences for carrying out quarrying operations. They are officially issued explosives by the Andaman Public Works Department, which they use for extraction of boulders from their respective quarries, over which they have valid licences. Their contention in nutshell is, that the action of the petitioners in possessing and using explosive substances is legal and legitimate. As such, the aforesaid three petitioners contend, that they are not involved in any unauthorized activity. All the petitioners therefore pray for their release on bail.
7. In support of their prayer for bail, it was pointed out, that the First Information Report in this case was registered as far back as on 21.6.2011, the first chargesheet in the case was filed on 24.8.2011. Thereafter, three supplementary chargesheets were filed on 30.1.2012, 10.4.2012 and 7.7.2012. It was the pointed submission of all learned counsel, that based on the successive filing of the supplementary chargesheets, their detention in jail was being unduly and intentionally prolonged, for extraneous considerations. It was also pointed out by the learned counsel for the petitioners, that all the petitioners have already been in jail for periods exceeding one year and, as such, they should be extended the concession of bail.
8. It was also the contention of the learned counsel for the petitioners, that the confiscated explosive materials, even according to the contents of the First Information Report, and the three chargesheets referred to above, were admittedly being used for quarrying operations. It was submitted, that there is no allegation against any of the accused, that the contraband detained in Port Blair was for use in any terrorist or like activity/activities. It was submitted, that keeping in mind the tenor of the insinuations contained in the First Information Report, as also, the allegations contained in the chargesheets, the petitioners should not be dealt with as if they are terrorists or are associated with terrorists.
9. Additionally, it was the contention on behalf of all the petitioners, that no explosive materials were recovered from the premises of any of the petitioners, and accordingly, none of the petitioners could be associated with the recovery of explosives allegedly made from the shipping yard at Port Blair. It was submitted, that the petitioners have been detained, only on the basis of telephone conversations, and deposit of cash in bank accounts, which have no nexus with the recoveries of explosives made at Port Blair.
10. We shall endeavour to deal with the pointed allegations levelled against each of the petitioners hereinafter. We shall deal with the petitioners, in the same sequence, in which submissions on their behalf, were addressed at the Bar.
11. First and foremost, the allegations against S. Namochivayama (petitioner in SLP (Crl.) no.8876 of 2012). According to learned counsel representing the respondent state, G.S. Babu who was arrested when thecontraband was recovered at Haddo Jetty, Port Blair, as also, the driver Pankriacius Ekka (of the vehicle bearing registration No.AN-01E-1847) revealed, that the bags (200 bags) of ammonium nitrate seized by the raiding party on 21.6.2011, were booked in the name of M/s.Karpaga Vinagar Stores, whose proprietor is the petitioner S. Namochivayama. The investigations conducted by the police also revealed, that consignments of ammonium nitrate used to be distributed by S. Namochivayama, to the other co-accused, who are involved in quarrying operations. Even the driver, named above, had expressly indicated, that it was at the directions of the petitioner S. Namochivayama, that he had gone to Haddo Jetty, Port Blair, for collecting the consignment under reference. According to the evidence allegedly collected by the investigating agency, Muthuraja and Sadasivam are the proprietors of VMR Shipping Agency. They were responsible for shipping the containers from Chennai to Port Blair. Both the aforesaid Muthuraja and Sadasivam are related to the petitioner S. Namochivayama. It is also the case of the prosecution, that another accused Raghavan, also a consignee of the gelatine sticks and detonators, was related to petitioner S. Namochivayama. It is also asserted by the learned counsel for the respondents, that the evidence collected by the investigating agency clearly demonstrates the involvement of the petitioner S. Namochivayama, inasmuch as, the instant consignment was not a stray incident. The petitioner S. Namochivayama is believed to have been indulging in such activities in the ordinary course of his business. In view of the petitioner S. Namochivayama being the distributor of ammonium nitrate, gelatine sticks and electronic detonators at Port Blair, he wasperceived as the kingpin of the alleged activity, at Port Blair. And therefore, a prime accused in the alleged conspiracy. Finally, it was the contention of the learned counsel for the respondents, that procurement of explosives of the nature in question (which were recovered by the police party on 21.6.2011), and their unauthorized sale and use, is a matter of serious concern, not only for environmental purpose, but also for national security. It was pointed out, that explosives of the nature recovered at Port Blair on 21.6.2011, can easily be used for other allied unauthorized purposes, with disastrous consequences.
12. The name of N. Kannapan (petitioner in SLP (Crl.) no.7532 of 2012), allegedly came to light, from the statement of witnesses recorded under Section 164 of the Code of Criminal Procedure. According to the statement of Magesh, the petitioner N. Kannapan had paid a sum of Rs.3,20,000/- to him. The aforesaid amount was deposited by the aforestated Magesh in the account of Selvam. The bank account of Selvam affirmed the truthfulness of the aforesaid assertion. Call details reveal, regular conversation between the petitioner N. Kannapan and Selvam, which establishes their relationship. N. Kannapan was also found to be associated in the matter, as Shanmugam in his statement under Section 164 of the Code of Criminal Procedure affirmed, that the petitioner N. Kanappan was using ammonium nitrate for quarrying operations. In this behalf it was pointed out, that the Andaman Public Works Department had not issued any ammonium nitrate to N. Kannapan, but the investigation revealed, that he was using the same for quarrying purposes, at his own quarry. It was also submitted, that the findings of the forensic sciencelaboratory indicate, that the seized goods were “special category explosive substances”, and as such, the petitioner N. Kannapan had actually used such explosive substances, without due authorization in quarrying operations, and was liable for infringement of the provisions under the Explosive Substances Act, 1908. It was also contended, that the explosive substances under reference, were brought in a ship in a clandestine manner. In this behalf it was pointed out, that in the declaration manifest of one of the cartons, the gelatine sticks and the electronic detonators were described as grease. The other container with ammonium nitrate, was described as salt (in the declaration manifest relating thereto). It was submitted, that if the intentions of the petitioner N. Kannapan, were bonafide and genuine, there was no reason for clandestine transportation of the ceased explosives from Chennai to Port Blair. The explosives in question, according to the learned counsel for the respondents, could be used for extraneous considerations, and had the potential of a massive disaster, not only to life but also to property, on the Andaman or neighbouring islands. It was also pointed out, that the petitioner N. Kannapan had a regular relationship with the other co-accused in the transaction. The aforesaid relationship was allegedly established from call data registers, depicting a relationship between the petitioner N. Kannapan and the other co-accused.
13. R. Chidambaram (petitioner in SLP (Crl.)no.8286 of 2012) is admittedly a quarry operator. For quarrying operations, he is admittedly in possession of a valid quarry licence. He was issued 15 kgs. of gelatine sticks and 60 detonators for quarrying operations by the Andaman PublicWorks Department. According to the inferences drawn, from expert opinion sought on the issue, it had emerged, that the gelatine sticks and detonators officially issued to the petitioner R. Chidamabaram, would result in excavation of 450 metric tonnes of boulders, whereas, the petitioner R. Chidambaram is stated to have extracted 1590 metric tonnes of boulders. This, according to learned counsel, was evident from the transport permits used by R. Chidambaram, for transportation of the boulders. According to the learned counsel for the respondents, the boulders excavated by petitioner R. Chidambaram, were three folds more than what he could have, by using the explosives issued to him by the Andaman Public Works Department. It was also the contention of the learned counsel for the respondents, that the petitioner R. Chidamabaram was using ammonium nitrate for quarrying activities, in the area over which he had a lease. It is pointed out, that R. Chidambaram was not issued any ammonium nitrate by the concerned authority. It is further submitted, that the statements of Armugam, Ganeshan, Sashi, Shanmugam, Mageshwaram and Karupaiah, recorded under Section 164 of the Code of Criminal Procedure, also revealed, the involvement of petitioner R. Chidambaram in the procurement of illegal explosive substances, and of their use in his quarrying activities. It was also submitted, that the aforestated Mageshwaram, during the course of his statement recorded under Section 164 Cr.P.C. had stated, that he (Mageshwaram) used to collect money from the petitioner R. Chidamabaram, and used to deposit the same in the account of Selvam. It is therefore submitted, that the involvement ofpetitioner R. Chidambaram is based on concrete and unrefutable evidence.
14. In the case of Sanjay Choudhary (petitioner in SLP (Crl.) no.8730 of 2010), it was submitted by the learned counsel for the respondents, that his (of Sanjay Choudhary) position, was exactly the same as that of R. Chidambaram, and as such, the factual position projected in the case of R. Chidamabaram, should be considered as against Sanjay Choudhary as well. It is pointed out, that the said similarity is on the following aspects. The money collected by Nagesh and deposited in Selvam’s account. The use of ammonium nitrate without allotment of the same by the competent authority. The statements of Shamugam, Ganesh and Sashi under Section 164 Cr.P.C. And the fact, that although he was allotted only 15 kgs. of gelatine sticks and 60 electronic detonators, which could at best result in excavation of 450 metric tonnes of boulders; he was found to have extracted and transported 1905 metric tonnes of boulders, i.e., more than four times the amount which he could have excavated on the basis of the allotted explosives.
15. Having considered the assertions made at the hands of the rival parties, we are satisfied, that there is prima facie material, to establish the involvement of the petitioners in activities violating the provisions of the Explosive Substances Act, 1908. The consequences of such violation are extremely serious. The minimum punishment on conviction, is 10 years rigorous imprisonment. For more serious activities, the punishment can extend to imprisonment for life, and with death penalty. In the pleadings, and during the course of hearing, we were informed, that some of the accused are still absconding. Obviously all the accused are financially well placed. Releasing them from jail at the present juncture, when the prosecution has not even commenced to examine the main witnesses, could prove detrimental to the eventual outcome of the trial. Atleast till the culmination of the evidence of the material witnesses, it is not proper to order the release of the petitioners on bail. In the facts and circumstances noticed hereinabove, we hereby decline the prayer for bail made by the petitioners. The impugned orders passed by the High Court are accordingly affirmed.
16. Having disposed of the matter in the manner expressed hereinabove, we consider it just and appropriate to direct the prosecution to first examine the material witnesses. It shall be open to the petitioner(s) to move a fresh application for bail, after the examination of all the material witnesses. Observations made in the instant order, on the merits of the controversy, shall not prejudice any of the parties during the course of the trial or thereafter.
17. Disposed of in the aforesaid terms.
posted Sep 24, 2012, 9:09 PM by Law Kerala [ updated Sep 24, 2012, 9:11 PM ]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
R.M. Lodha, Anil R. Dave and Sudhansu Jyoti Mukhopadhaya, JJ.
SEPTEMBER 24, 2012
SPECIAL LEAVE PETITION (CRL.) NO . 8989 OF 2010
Gian Singh …Petitioner
State of Punjab & Another …Respondents
SPECIAL LEAVE PETITION (CRL.) NO . 6138 OF 2006
SPECIAL LEAVE PETITION (CRL.) NO . 5203 OF 2011
SPECIAL LEAVE PETITION (CRL.) NO . 259 OF 2011
SPECIAL LEAVE PETITION (CRL.) NO . 5921 OF 2009
SPECIAL LEAVE PETITION (CRL.) NO . 7148 OF 2009
SPECIAL LEAVE PETITION (CRL.) NO . 6324 OF 2009
CRIMINAL APPEAL NOS . 2107-2125 OF 2011
Code of Criminal Procedure, 1973 - Sections 320 and 482 - Quashing a criminal proceeding or FIR or complaint - Compounding the offences - the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code.
Held:- Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime.
Code of Criminal Procedure, 1973 - Sections 320 and 482 - Quashing a criminal proceeding or FIR or complaint - Heinous and serious offences - Compounding the offences - Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute.
Held:- Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences.
Code of Criminal Procedure, 1973 - Sections 320 and 482 - Quashing a criminal proceeding or FIR or complaint - Civil Nature - Compounding the offences - Criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute.
Held:- In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.
J U D G E M E N T
R.M . LODHA , J .
When the special leave petition in Gian Singh v. State of Punjab and another came up for hearing, a two-Judge Bench (Markandey Katju and Gyan Sudha Misra, JJ.) doubted the correctness of the decisions of this Court in B.S. Joshi and others v. State of Haryana and another, (2003) 4 SCC 675 Nikhil Merchant v. Central Bureau of Investigation and another, (2008) 9 SCC 677 and Manoj Sharma v. State and others, (2008) 16 SCC 1 and referred the matter to a larger Bench. The reference order reads as follows :
“Heard learned counsel for the petitioner.
The petitioner has been convicted under Section 420 and Section 120B, IPC by the learned Magistrate. He filed an appeal challenging his conviction before the learned Sessions Judge. While his appeal was pending, he filed an application before the learned Sessions Judge for compounding the offence, which, according to the learned counsel, was directed to be taken up along with the main appeal. Thereafter, the petitioner filed a petition under Section 482, Cr.P.C. for quashing of the FIR on the ground of compounding the offence. That petition under Section 482 Cr.P.C. has been dismissed by the High Court by its impugned order. Hence, this petition has been filed in this Court.
Learned counsel for the petitioner has relied on three decisions of this Court, all by two Judge Benches. They are B.S. Joshi vs. State of Haryana (2003) 4 SCC 675; Nikhil Merchant vs. Central Bureau of Investigation and Another (2008) 9 SCC 677; and Manoj Sharma vs. State and Others (2008) 16 SCC 1. In these decisions, this Court has indirectly permitted compounding of non-compoundable offences. One of us, Hon’ble Mr. Justice Markandey Katju, was a member to the last two decisions.
Section 320, Cr.P.C. mentions certain offences as compoundable, certain other offences as compoundable with the permission of the Court, and the other offences as non-compoundable vide Section 320(7).
Section 420, IPC, one of the counts on which the petitioner has been convicted, no doubt, is a compoundable offence with permission of the Court in view of Section 320, Cr.P.C. but Section 120B IPC, the other count on which the petitioner has been convicted, is a non-compoundable offence. Section 120B (Criminal conspiracy) is a separate offence and since it is a non-compoundable offence, we cannot permit it to be compounded.
The Court cannot amend the statute and must maintain judicial restraint in this connection. The Courts should not try to take over the function of the Parliament or executive. It is the legislature alone which can amend Section 320 Cr.P.C.
We are of the opinion that the above three decisions require to be re-considered as, in our opinion, something which cannot be done directly cannot be done indirectly. In our, prima facie, opinion, non-compoundable offences cannot be permitted to be compounded by the Court, whether directly or indirectly. Hence, the above three decisions do not appear to us to be correctly decided.
It is true that in the last two decisions, one of us, Hon’ble Mr. Justice Markandey Katju, was a member but a Judge should always be open to correct his mistakes. We feel that these decisions require re-consideration and hence we direct that this matter be placed before a larger Bench to reconsider the correctness of the aforesaid three decisions.
Let the papers of this case be placed before Hon’ble Chief Justice of India for constituting a larger Bench.”
2. This is how these matters have come up for consideration before us.
3. Two provisions of the Code of Criminal Procedure, 1973 (for short, ‘Code’) which are vital for consideration of the issue referred to the larger Bench are Sections 320 and 482. Section 320 of the Code providesfor compounding of certain offences punishable under the Indian Penal Code, 1860 (for short, ‘IPC’). It reads as follows :
“S. 320. Compounding of offences.—(1) The offences punishable under the sections of the Indian Penal Code, (45 of 1860) specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that Table :
Offence Section of the Indian Penal Code applicable Person by whom offence may be compounded 1 2 3
(2) The offences punishable under the sections of the Indian Penal Code (45 of 1860) specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that Table:--
Offence Section of the Indian Penal Code applicable Person by whom offence may be compounded 1 2 3
(3) When an offence is compoundable under this section, the abatement of such offence or an attempt to commit such offence (when such attempt is itself an offence) or where the accused is liable under section 34 or 149 of the Indian Penal Code (45 of 1860) may be compounded in like manner.
(4) (a) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years or is an idiot or a lunatic, any person competent to contract on his behalf, may, with the permission of the Court, compound such offence.
(b) When the person who would otherwise be competent to compound an offence under this section is dead, the legal representative, as defined in the Code of Civil Procedure, 1908 of such person may, with the consent of the Court, compound such offence.
(5) When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or, as the case may be, before which the appeal is to be heard.
(6) A High Court or Court of Session acting in the exercise of its powers of revision under section 401 may allow any person to compound any offence which such person is competent to compound under this section.
(7) No offence shall be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for such offence.
(8) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.
(9) No offence shall be compounded except as provided by this section.”
4. Section 482 saves the inherent power of the High Court and it reads as follows :
“S. 482. Saving of inherent power of High Court.— Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”
5. In B.S. Joshi, the undisputed facts were these : the husband was one of the appellants while the wife was respondent no. 2 in the appeal before this Court. They were married on 21.7.1999 and were living separately since 15.7.2000. An FIR was registered under Sections 498-A/323 and 406, IPC at the instance of the wife on 2.1.2002. When the criminal case registered at the instance of the wife was pending, the dispute between the husband and wife and their family members was settled. It appears that the wife filed an affidavit that her disputes with the husband and the other members of his family had been finally settled and she and her husband had agreed for mutual divorce. Based on the said affidavit, the matter was taken to the High Court by both the parties and they jointly prayed for quashing the criminal proceedings launched against the husband and his family members on the basis of the FIR registered at the wife’s instance under Sections 498-A and 406 IPC. The High Court dismissed the petition for quashing the FIR as in its view the offences under Sections 498-A and 406, IPC were non-compoundableand the inherent powers under Section 482 of the Code could not be invoked to by-pass Section 320 of the Code. It is from this order that the matter reached this Court. This Court held that the High Court in exercise of its inherent powers could quash criminal proceedings or FIR or complaint and Section 320 of the Code did not limit or affect the powers under Section 482 of the Code. The Court in paragraphs 14 and 15 (Pg. 682) of the Report held as under :
“14. There is no doubt that the object of introducing Chapter XX-A containing Section 498-A in the Indian Penal Code was to prevent torture to a woman by her husband or by relatives of her husband. Section 498- A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hypertechnical view would be counterproductive and would act against interests of women and against the object for which this provision was added. There is every likelihood that nonexercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XX-A of the Indian Penal Code.
15. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.”
6. In Nikhil Merchant, a company, M/s. Neemuch Emballage Ltd., Mumbai was granted financial assistance by Andhra Bank under various facilities. On account of default in repayment of loans, the bank filed a suit for recovery of the amount payable by the borrower company. The bank also filed a complaint against the company, its ManagingDirector and the officials of Andhra Bank for diverse offences, namely, Section 120-B read with Sections 420, 467, 468, 471 of the IPC read with Sections 5(2) and 5(1)(d) of the Prevention of Corruption Act, 1947 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The suit for recovery filed by the bank against the company and the Managing Director of the Company was compromised. The suit was compromised upon the defendants agreeing to pay the amounts due as per the schedule mentioned in the consent terms. Clause 11 of the consent terms read, “agreed that save as aforesaid neither party has any claim against the other and parties do hereby withdraw all the allegations and counter-allegations made against each other”. Based on clause 11 of the consent terms, the Managing Director of the Company, the appellant who was accused no. 3 in charge sheet filed by CBI, made application for discharge from the criminal complaint. The said application was rejected by the Special Judge (CBI), Greater Bombay, which came to be challenged before the Bombay High Court. The contention before the High Court was that since the subject matter of the dispute had been settled between the appellant and the bank, it would be unreasonable to continue with the criminal proceedings. The High Court rejected the application for discharge from the criminal cases. It is from this order that the matter reached this Court by way of special leave. The Court having regard to the facts of the case and the earlier decision of this Court in B.S. Joshi, set aside the order of the High Court and quashed the criminal proceedings by consideration of the matter thus:
“28. The basic intention of the accused in this case appears to have been to misrepresent the financial status of the Company, M/s Neemuch Emballage Ltd., Mumbai, in order to avail of the credit facilities to an extent to which the Company was not entitled. In other words, the main intention of the Company and its officers was to cheat the Bank and induce it to part with additional amounts of credit to which the Company was not otherwise entitled.
29. Despite the ingredients and the factual content of an offence of cheating punishable under Section 420 IPC, the same has been made compoundable under sub-section (2) of Section 320 CrPC with the leave of the court. Of course, forgery has not been included as one of the compoundable offences, but it is in such cases that the principle enunciated in B.S. Joshi case becomes relevant.
30. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail of credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised?
31. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshi case and the compromise arrived at between the Company and the Bank as also Clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise.”
7. In Manoj Sharma, the Court was concerned with the question whether an F.I.R. under Sections 420/468/471/34/120-B IPC can be quashed either under Section 482 of the Code or under Article 226 of the Constitution when the accused and the complainant have compromised and settled the matter between themselves. Altamas Kabir, J., who delivered the lead judgment referred to B.S. Joshi and the submission made on behalf of the State that B.S. Joshi required a second look and held that the Court was not inclined to accept the contention made on behalf of the State that the decision in B.S. Joshi required reconsideration, at least not in the facts of the case. It was held that what was decided in B.S. Joshi was the power and authority of the High Court to exercise jurisdiction under Section 482 of the Code or under Article 226 of the Constitution to quash offences which were not compoundable. The law stated in B.S. Joshi simply indicated the powers of the High Court to quash any criminal proceeding or first information report or complaint whether the offences were compoundable or not. Altamas Kabir, J. further observed, “The ultimate exercise of discretion under Section 482 CrPC or under Article 226 of the Constitution is withthe court which has to exercise such jurisdiction in the facts of each case. It has been explained that the said power is in no way limited by the provisions of Section 320 CrPC. We are unable to disagree with such statement of law. In any event, in this case, we are only required to consider whether the High Court had exercised its jurisdiction under Section 482 CrPC legally and correctly.”
Then in paragraphs 8 and 9 (pg. 5) of the Report, Altamas Kabir, J., inter alia, held as under :
“8. …..Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the first information report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case.
9. ……In the facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility………”
8. Markandey Katju, J. although concurred with the view of Altamas Kabir, J. that criminal proceedings in that case deserved to be quashed but observed that question may have to be decided in some subsequent decision or decisions (preferably by a larger Bench) as to which non-compoundable cases can be quashed under Section 482 of the Code or Article 226 of the Constitution on the basis that the partieshave entered into compromise. In paragraphs 27 and 28 (pg. 10) of the report he held as under:
“27. There can be no doubt that a case under Section 302 IPC or other serious offences like those under Sections 395, 307 or 304-B cannot be compounded and hence proceedings in those provisions cannot be quashed by the High Court in exercise of its power under Section 482 CrPC or in writ jurisdiction on the basis of compromise. However, in some other cases (like those akin to a civil nature), the proceedings can be quashed by the High Court if the parties have come to an amicable settlement even though the provisions are not compoundable. Where a line is to be drawn will have to be decided in some later decisions of this Court, preferably by a larger Bench (so as to make it more authoritative). Some guidelines will have to be evolved in this connection and the matter cannot be left at the sole unguided discretion of Judges, otherwise there may be conflicting decisions and judicial anarchy. A judicial discretion has to be exercised on some objective guiding principles and criteria, and not on the whims and fancies of individual Judges. Discretion, after all, cannot be the Chancellor's foot.
28. I am expressing this opinion because Shri B.B. Singh, learned counsel for the respondent has rightly expressed his concern that the decision in B.S. Joshi case should not be understood to have meant that Judges can quash any kind of criminal case merely because there has been a compromise between the parties. After all, a crime is an offence against society, and not merely against a private individual.”
9. Dr. Abhishek Manu Singhvi, learned senior counsel for the petitioner in SLP(Crl.) No. 6324 of 2009 submitted that the inherent power of the High Court to quash a non-compoundable offence was not circumscribed by any of the provisions of the Code, including Section 320. Section 482 is a declaration of the inherent power pre-existing in the HighCourt and so long as the exercise of the inherent power falls within the parameters of Section 482, it shall have an overriding effect over any of the provisions of the Code. He, thus, submitted that in exercise of its inherent powers under Section 482, the High Court may permit compounding of a non-compoundable offence provided that in doing so it satisfies the conditions mentioned therein. Learned senior counsel would submit that the power to quash the criminal proceedings under Section 482 of the Code exists even in non-compoundable offence but its actual exercise will depend on facts of a particular case. He submitted that some or all of the following tests may be relevant to decide whether to quash or not to quash the criminal proceedings in a given case; (a) the nature and gravity of case; (b) does the dispute reflect overwhelming and predominantly civil flavour; (c) would the quashing involve settlement of entire or almost the entire dispute; (d) the compromise/settlement between parties and/or other facts and the circumstances render possibility of conviction remote and bleak; (e) not to quash would cause extreme injustice and would not serve ends of justice and (f) not to quash would result in abuse of process of court.
10. Shri P.P. Rao, learned senior counsel for the petitioner in Special Leave Petition (Crl.) No. 5921 of 2009 submitted that Section 482 of the Code is complete answer to the reference made to the larger Bench. He analysed Section 482 and Section 320 of the Code andsubmitted that Section 320 did not limit or affect the inherent powers of the High Court. Notwithstanding Section 320, High Court can exercise its inherent power, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends of justice. To secure the ends of justice is a wholesome and definite guideline. It requires formation of opinion by High Court on the basis of material on record as to whether the ends of justice would justify quashing of a particular criminal complaint, FIR or a proceeding. When the Court exercises its inherent power under Section 482 in respect of offences which are not compoundable taking into account the fact that the accused and the complainant have settled their differences amicably, it cannot be viewed as permitting compounding of offence which is not compoundable.
11. Mr. P.P. Rao, learned senior counsel submitted that in cases of civil wrongs which also constitute criminal offences, the High Court may pass order under Section 482 once both parties jointly pray for dropping the criminal proceeding initiated by one of them to put an end to the dispute and restore peace between the parties.
12. Mr. V. Giri, learned senior counsel for the respondent (accused) in Special Leave Petition (Crl.) No. 6138 of 2006 submitted that the real question that needs to be considered by this Court in the reference is whether Section 320(9) of the Code creates a bar or limits or affects the inherent powers of the High Court under Section 482 of theCode. It was submitted that Section 320(9) does not create a bar or limit or affect the inherent powers of the High Court in the matter of quashing any criminal proceedings. Relying upon various decisions of this Court, it was submitted that it has been consistently held that the High Court has unfettered powers under Section 482 of the Code to secure the ends of justice and prevent abuse of the process of the Court. He also submitted that on compromise between the parties, the High Court in exercise of powers under Section 482 can quash the criminal proceedings, more so the matters arising from matrimonial dispute, property dispute, dispute between close relations, partners or business concerns which are predominantly of civil, financial or commercial nature.
13. Learned counsel for the petitioner in Special Leave Petition (Crl.) No. 8989 of 2010 submitted that the court should have positive view to quash the proceedings once the aggrieved party has compromised the matter with the wrong doer. It was submitted that if the court did not allow the quashing of FIR or complaint or criminal case where the parties settled their dispute amicably, it would encourage the parties to speak lie in the court and witnesses would become hostile and the criminal proceeding would not end in conviction. Learned counsel submitted that the court could also consider the two questions (1) can there be partial quashing of the FIR qua accused with whom the complainant/aggrieved party enters into compromise. (2) can the court quash the proceedings inthe cases which have not arisen from the matrimonial or civil disputes but the offences are personal in nature like grievous hurt (S.326), attempt to murder (S.307), rape (S.376), trespassing (S.452) and kidnapping (S.364, 365) etc.
14. Mr. P. P. Malhotra, learned Additional Solicitor General referred to the scheme of the Code. He submitted that in any criminal case investigated by police on filing the report under Section 173 of the Code, the Magistrate, after applying his mind to the chargesheet and the documents accompanying the same, if takes cognizance of the offences and summons the accused and/or frames charges and in certain grave and serious offences, commits the accused to be tried by a court of Sessions and the Sessions Court after satisfying itself and after hearing the accused frames charges for the offences alleged to have been committed by him, the Code provides a remedy to accused to challenge the order taking cognizance or of framing charges. Similar situation may follow in a complaint case. Learned Additional Solicitor General submitted that power under Section 482 of the Code cannot be invoked in the noncompoundable offences since Section 320(9) expressly prohibits the compounding of such offences. Quashing of criminal proceedings of the offences which are non-compoundable would negative the effect of the order of framing charges or taking cognizance and therefore quashingwould amount to taking away the order of cognizance passed by the Magistrate.
15. Learned Additional Solicitor General would submit that when the Court takes cognizance or frames charges, it is in accordance with the procedure established by law. Once the court takes cognizance or frames charges, the method to challenge such order is by way of appropriate application to the superior court under the provisions of the Code.
16. If power under Section 482 is exercised, in relation to noncompoundable offences, it will amount to what is prohibited by law and such cases cannot be brought within the parameters ‘to secure ends of justice’. Any order in violation and breach of statutory provisions, learned Additional Solicitor General would submit, would be a case against the ends of justice. He heavily relied upon a Constitution Bench decision of this Court in Central Bureau of Investigation and others v. Keshub Mahindra and others, (2011) 6 SCC 216 wherein this Court held, ‘no decision by any court, this Court not excluded, can be read in a manner as to nullify the express provisions of an Act or the Code.’ With reference to B.S. Joshi, learned Additional Solicitor General submitted that that was a case where the dispute was between the husband and wife and the court felt that if the proceedings were not quashed, it would prevent the woman from settling in life and the wife had already filed an affidavit that there were temperamental differences and she was not supporting continuation of criminal proceedings. As regards, Nikhil Merchant, learned Additional Solicitor General submitted that this Court in State of Madhya Pradesh v. Rameshwar and others, (2009) 11 SCC 424 held that the said decision was a decision under Article 142 of the Constitution. With regard to Manoj Sharma, learned Additional Solicitor General referred to the observations made by Markandey Katju, J. in paragraphs 24 and 28 of the Report.
17. Learned Additional Solicitor General submitted that the High Court has no power to quash criminal proceedings in regard to offences in which a cognizance has been taken by the Magistrate merely because there has been settlement between the victim and the offender because the criminal offence is against the society.
18. More than 65 years back, in Emperor v. Khwaja Nazir Ahmed, (1945) 47 Bom. L.R. 245 it was observed by the Privy Council that Section 561A (corresponding to Section 482 of the Code) had not given increased powers to the Court which it did not possess before that section was enacted. It was observed, `The section gives no new powers, it only provides that those which the court already inherently possess shall be preserved and is inserted lest, as their Lordships think, it should be considered that the only powers possessed by the court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of the Code’.
19. In Khushi Ram v. Hashim and others, AIR 1959 SC 542 this Court held as under :
“It is unnecessary to emphasise that the inherent power of the High Court under Section 561A cannot be invoked in regard to matters which are directly covered by the specific provisions of the Code…”
20. The above view of Privy Council in Khwaja Nazir Ahmed and another decision in Lala Jairam Das & Ors. v. Emperor, AIR 1945 PC 94 was expressly accepted by this Court in State of Uttar Pradesh. v. Mohammad Naim, AIR 1964 SC 703. The Court said :
“7. It is now well settled that the section confers no new powers on the High Court. It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice. The section provides that those powers which the court inherently possesses shall be preserved lest it be considered that the only powers possessed by the court are those expressly conferred by the Code and that no inherent powers had survived the passing of the Code………..”
21. In Pampathy v. State of Mysore, 1966 (Suppl) SCR 477 a three-Judge Bench of this Court stated as follows :
“ The inherent power of the High Court mentioned in Section 561A, Criminal Procedure Code can be exercised only for either of the three purposes specifically mentioned in the section. The inherent power cannot be invoked in respect of any matter covered by the specific provisions of the Code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code. It is only if the matter in question is not covered by any specific provisions of the Code that s. 561A can come into operation…….”
22. In State of Karnataka v. L. Muniswamy and others, (1977) 2 SCC 699 a three- Judge Bench of this Court referred to Section 482 of the Code and in paragraph 7 (pg. 703) of the Report held as under :
“7. …….. In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.”
23. The Court then observed that the considerations justifying the exercise of inherent powers for securing the ends of justice naturally vary from case to case and a jurisdiction as wholesome as the one conferred by Section 482 ought not to be encased within the straitjacket of a rigid formula.
24. A three-Judge Bench of this Court in Madhu Limaye v. The State of Maharashtra, (1977) 4 SCC 551 dealt with the invocation of inherent power under Section 482 for quashing interlocutory order even though revision under Section 397(2) of the Code was prohibited. The Court noticed the principles in relation to the exercise of the inherent power of the High Court as under :
“(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.”
25. In Raj Kapoor and others v. State and others, (1980) 1 SCC 43 the Court explained the width and amplitude of the inherent power of the High Court under Section 482 vis-à-vis revisional power under Section 397 as follows:
“10. …….The opening words of Section 482 contradict this contention because nothing of 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. Even so, 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. In Madhu Limaye’s case 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 Section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 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 subsection (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 principles 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 order assailed is purely of 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”.
In short, there is no total ban on the exercise of inherent power where abuse of the process of thecourt or other extraordinary 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 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 court's process. Can we state that in this third category the inherent power can be exercised? In the words of Untwalia, J.: (SCC p. 556, para 10)
“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 cessation 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.”
26. In Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee and another, (1990) 2 SCC 437 the Court considered the scope of Section 482 of the Code in a case where on dismissal of petition under Section 482, a second petition under Section 482 of the Code was made. The contention before this Court was that the second petition under Section 482 of the Code was not entertainable; the exercise of power under Section 482 on a second petition by the same party on the same ground virtually amounts to review of the earlier order and is contrary to the spirit of Section 362 of the Code and the High Court was in error in having quashed the proceedings by adopting that course. While accepting this argument, this Court held as follows :
“3. ……The inherent power under Section 482 is intended to prevent the abuse of the process of the court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the court. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362.
5. Section 362 of the Code expressly provides that no court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error save as otherwise provided by the Code. Section 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The inherent powers, however, as much are controlled by principle and precedent as are its express powers by statute. If a matter is covered by an express letter of law, the court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction.
7. The inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section 362. It is clearly stated in Sooraj Devi v. Pyare Lal, that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code. The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code. The court is not empowered to review its own decision under the purported exercise of inherent power. We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials. The High Court has grievously erred in doing so. Even on merits, we do not find any compelling reasons to quash the proceedings at that stage.”
27. In Dharampal & Ors. v. Ramshri (Smt.) and others, 1993 Crl. L.J. 1049 this Court observed as follows :
“……It is now well settled that the inherent powers under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code…….”
28. In Arun Shankar Shukla v. State of Uttar Pradesh and ors., AIR 1999 SC 2554 a two-Judge Bench of this Court held as under :
“….It is true that under Section 482 of the Code, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions “abuse of the process of law” or “to secure the ends of justice” do not confer unlimited jurisdiction on the High Court and the alleged abuse of the process of law or the ends of justice could only be secured in accordance with law including procedural law and not otherwise. Further, inherent powers are in the nature of extraordinary powers to be used sparingly for achieving the object mentioned in Section 482 of the Code in cases where there is no express provision empowering the High Court to achieve the said object. It is well-neigh settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code. In the present case, the High Court overlooked the procedural law which empowered the convicted accused to prefer statutory appeal against conviction of the offence. The High Court has intervened at an uncalled for stage and soft-pedalled the course of justice at a very crucial stage of the trial.”
29. In G. Sagar Suri and another v. State of U.P. and others, (2000) 2 SCC 636 the Court was concerned with the order of the High Court whereby the application under Section 482 of the Code for quashing the criminal proceedings under Sections 406 and 420 of the IPC pending in the Court of Chief Judicial Magistrate, Ghaziabad was dismissed. In paragraph 8 (pg. 643) of the Report, the Court held as under:
“8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.”
30. A three-Judge Bench of this Court in State of Karnataka v. M. Devendrappa and another, (2002) 3 SCC 89 restated what has been stated in earlier decisions that Section 482 does not confer any new powers on the High Court, it only saves the inherent power which the court possessed before the commencement of the Code. The Court went on to explain the exercise of inherent power by the High Court in paragraph 6 (Pg.94) of the Report as under :
“6. ………It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice……..” The Court in paragraph 9 (Pg. 96) further stated :
“9. ………the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rulecan be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage……”
31. In Central Bureau of Investigation v. A. Ravishankar Prasad and others, (2009) 6 SCC 351 the Court observed in paragraphs 17,19,20 and 39 (Pgs. 356, 357 and 363) of the Report as follows :
“17. Undoubtedly, the High Court possesses inherent powers under Section 482 of the Code of Criminal Procedure. These inherent powers of the High Court are meant to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court.
19. This Court time and again has observed that the extraordinary power under Section 482 CrPC should be exercised sparingly and with great care and caution. The Court would be justified in exercising the power when it is imperative to exercise the power in order to prevent injustice. In order to understand the nature and scope of power under Section 482 CrPC it has become necessary to recapitulate the ratio of the decided cases.
20. Reference to the following cases would reveal that the Courts have consistently taken the view that they must use the court's extraordinary power only to prevent injustice and secure the ends of justice. We have largely inherited the provisions of inherent powers from the English jurisprudence, therefore the principles decided by the English courts would be of relevance for us. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. The English courts have also used inherent power to achieve the same objective.
39. Careful analysis of all these judgments clearly reveals that the exercise of inherent powers would entirely depend on the facts and circumstances of each case. The object of incorporating inherent powers in the Code is to prevent abuse of the process of the court or to secure ends of justice.”
32 In Devendra and others v. State of Uttar Pradesh and another, (2009) 7 SCC 495 while dealing with the question whether a pure civil dispute can be subject matter of a criminal proceeding under Sections 420, 467, 468 and 469 IPC, a two-Judge Bench of this Court observed that the High Court ordinarily would exercise its jurisdiction under Section 482 of the Code if the allegations made in the First Information Report, even if given face value and taken to be correct in their entirety, do not make out any offence.
33. In Sushil Suri v. Central Bureau of Investigation and another, (2011) 5 SCC 708 the Court considered the scope and ambit of the inherent jurisdiction of the High Court and made the following observations in para 16 (pg. 715) of the Report:
“16. Section 482 CrPC itself envisages three circumstances under which the inherent jurisdiction may be exercised by the High Court, namely, (i) to give effect to an order under CrPC; (ii) to prevent an abuse of the process of court; and (iii) to otherwise secure the ends of justice. It is trite that although the power possessed by the High Court under the said provision is very wide but it is not unbridled. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the Court exists. Nevertheless, it is neither feasible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Yet, in numerous cases, this Court has laid down certain broad principles which may be borne in mind while exercising jurisdiction under Section 482 CrPC. Though it is emphasised that exercise of inherent powers would depend on the facts and circumstances of each case, but the common thread which runs through all the decisions on the subject is that the Court would be justified in invoking its inherent jurisdiction where the allegations made in the complaint or charge-sheet, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged.”
34. Besides B.S. Joshi, Nikhil Merchant and Manoj Sharma, there are other decisions of this Court where the scope of Section 320 vis-à-vis the inherent power of the High Court under Section 482 of the Code has come up for consideration.
35. In Madan Mohan Abbot v. State of Punjab, (2008) 4 SCC 582 in the appeal before this Court which arose from an order of the High Court refusing to quash the FIR against the appellant lodged under Sections 379, 406, 409, 418, 506/34, IPC on account of compromise entered into between the complainant and the accused, in paragraphs 5 and 6 (pg. 584) of the Report, the Court held as under :
“5. It is on the basis of this compromise that the application was filed in the High Court for quashing of proceedings which has been dismissed by the impugned order. We notice from a reading of the FIR and the other documents on record that the dispute was purely a personal one between two contesting parties and that it arose out of extensive business dealings between them and that there was absolutely no public policy involved in the nature of the allegations made against the accused. We are, therefore, of the opinion that no useful purpose would be served in continuing with the proceedings in the light of the compromise and also in the light of the fact that the complainant has on 11-1-2004 passed away and the possibility of a conviction being recorded has thus to be ruled out.
6. We need to emphasise that it is perhaps advisable that in disputes where the question involved is of a purely personal nature, the court should ordinarily accept the terms of the compromise even in criminal proceedings as keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilised in deciding more effective and meaningful litigation. This is a common sense approach to the matter based on ground of realities and bereft of the technicalities of the law.”
36. In Ishwar Singh v. State of Madhya Pradesh, (2008) 15 SCC 667 the Court was concerned with a case where the accused – appellant was convicted and sentenced by the Additional Sessions Judge for an offence punishable under Section 307, IPC. The High Court dismissed the appeal from the judgment and conviction. In the appeal, by special leave, the injured – complainant was ordered to be joined as party as it was stated by the counsel for the appellant that mutual compromise has been arrived at between the parties, i.e. accused on the one hand and the complainant – victim on the other hand during the pendency of the proceedings before this Court. It was prayed on behalf of the appellant that the appeal be disposed of on the basis of compromise between the parties. In para 12 (pg. 670) of the Report, the Court observed as follows :
“12. Now, it cannot be gainsaid that an offence punishable under Section 307 IPC is not a compoundable offence. Section 320 of the Code of Criminal Procedure, 1973 expressly states that no offence shall be compounded if it is not compoundable under the Code. At the same time, however, while dealing with such matters, this Court may take into account a relevant and important consideration about compromise between the parties for the purpose of reduction of sentence.”
37. The Court also referred to the earlier decisions of this Court in Jetha Ram v. State of Rajasthan, (2006) 9 SCC 255 Murugesan v. Ganapathy Velar, (2001) 10 SCC 504 Ishwarlal v. State of M.P., (2008) 15 SCC 671 and Mahesh Chand & another v. State of Rajasthan, 1990 (supp) SCC 681 and noted in paragraph 13 (pg. 670) of the Report as follows:
“13. In Jetha Ram v. State of Rajasthan, Murugesan v. Ganapathy Velar and Ishwarlal v. State of M.P. this Court, while taking into account the fact of compromise between the parties, reduced sentence imposed on the appellant-accused to already undergone, though the offences were not compoundable. But it was also stated that in Mahesh Chand v. State of Rajasthan such offence was ordered to be compounded.”
Then, in paragraphs 14 and 15 (pg. 670) the Court held as under :
“14. In our considered opinion, it would not be appropriate to order compounding of an offence not compoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned counsel for the appellant deserves consideration that while imposing substantive sentence, the factum of compromise between the parties is indeed a relevant circumstance which the Court may keep in mind.
15. In the instant case, the incident took place before more than fifteen years; the parties are residing in one and the same village and they are also relatives. The appellant was about 20 years of age at the time of commission of crime. It was his first offence. After conviction, the petitioner was taken into custody. During the pendency of appeal before the High Court, he was enlarged on bail but, after the decision of the High Court, he again surrendered and is in jail at present. Though he had applied for bail, the prayer was not granted and he was not released on bail. Considering the totality of facts and circumstances, in our opinion, the ends of justice would be met if the sentence of imprisonment awarded to the appellant (Accused 1) is reduced to the period already undergone.”
38. In Rumi Dhar (Smt.) v. State of West Bengal and another, (2009) 6 SCC 364 the Court was concerned with applicability of Section 320 of the Code where the accused was being prosecuted for commission of offences under Sections 120-B/420/467/468/471 of the IPC along with the bank officers who were being prosecuted under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988. The accused had paid the entire due amount as per the settlement with the bank in the matter of recovery before the Debts Recovery Tribunal. The accused prayed for her discharge on the grounds (i) having regard to the settlement arrived at between her and the bank, no case for proceeding against her has been made out; (ii) the amount having already been paid and the title deeds having been returned, the criminal proceedings should be dropped on the basis of the settlement and (iii) the dispute between the parties were purely civil in nature and that she had not fabricated any document or cheated the bank in any way whatsoever and charges could not have been framed against her. The CBI contested the application for discharge on the ground that mere repayment to the bank could not exonerate the accused from the criminal proceeding. The two-Judge Bench of this Court referred to Section 320 of the Code and the earlier decisions of this Court in CBI v. Duncans Agro Industries Limited, (1996) 5 SCC 591 State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222 Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305 and Nikhil Merchant which followed the decision in B.S. Joshi and then with reference to Article 142 of the Constitution and Section 482 of the Code refused to quash the charge against the accused by holding as under:
“24. The jurisdiction of the Court under Article 142 of the Constitution of India is not in dispute. Exercise of such power would, however, depend on the facts and circumstances of each case. The High Court, in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, and this Court, in terms of Article 142 of the Constitution of India, would not direct quashing of a case involving crime against the society particularly when both the learned Special Judge as also the High Court have found that a prima facie case has been made out against the appellant herein for framing the charge.”
39. In Shiji alias Pappu and others vs. Radhika and another, (2011) 10 SCC 705 this Court considered the exercise of inherent power by the High Court under Section 482 in a matter where the offence was not compoundable as the accused was already involved in commission of the offences punishable under Sections 354 and 394 IPC. The High Court rejected the prayer by holding that the offences with which appellants were charged are not ‘personal in nature’ to justify quashing the criminal proceedings on the basis of a compromise arrived at between the complainant and the appellants. This Court considered earlier decisions of this Court, the provisions contained in Sections 320 and 394 of the Code and in paragraphs 17, 18 and 19 (pgs. 712 and 713) of the Report held as under:
“17. It is manifest that simply because an offence is not compoundable under Section 320 CrPC is by itself no reason for the High Court to refuse exercise of its power under Section 482 CrPC. That power can in our opinion be exercised in cases where there is no chance of recording a conviction against the accused and the entire exercise of a trial is destined to be an exercise in futility. There is a subtle distinction between compounding of offences by the parties before the trial court or in appeal on the one hand and the exercise of power by the High Court to quash the prosecution under Section 482 CrPC on the other. While a court trying an accused or hearing an appeal against conviction, may not be competent to permit compounding of an offence based on a settlement arrived at between the parties in cases where the offences are not compoundable under Section 320, the High Court may quash the prosecution even in cases where the offences with which the accused stand charged are non-compoundable. The inherent powers of the High Court under Section 482 CrPC are not for that purpose controlled by Section 320 CrPC.
18. Having said so, we must hasten to add that the plenitude of the power under Section 482 CrPC by itself, makes it obligatory for the High Court to exercise the same with utmost care and caution. The width and the nature of the power itself demands that its exercise is sparing and only in cases where the High Court is, for reasons to be recorded, of the clear view that continuance of the prosecution would be nothing but an abuse of the process of law. It is neither necessary nor proper for us to enumerate the situations in which the exercise of power under Section 482 may be justified. All that we need to say is that the exercise of power must be for securing the ends of justice and only in cases where refusal to exercise that power may result in the abuse of the process of law. The High Court may be justified in declining interference if it is called upon to appreciate evidence for it cannot assume the role of an appellate court while dealing with a petition under Section 482 of the Criminal Procedure Code. Subject to the above, the High Court will have to consider the facts and circumstances of each case to determine whether it is a fit case in which the inherent powers may be invoked.
19. Coming to the case at hand, we are of the view that the incident in question had its genesis in a dispute relating to the access to the two plots which are adjacent to each other. It was not a case of broad daylight robbery for gain. It was a case which has its origin in the civil dispute between the parties, which dispute has, it appears, been resolved by them. That being so, continuance of the prosecution where the complainant is not ready to support the allegations which are now described by her as arising out of some “misunderstanding and misconception” will be a futile exercise that will serve no purpose. It is noteworthy that the two alleged eyewitnesses, who are closely related to the complainant, are also no longer supportive of the prosecution version. The continuance of the proceedings is thus nothing but an empty formality. Section 482 CrPC could, in such circumstances, be justifiably invoked by the HighCourt to prevent abuse of the process of law and thereby preventing a wasteful exercise by the courts below”.
40. In Ashok Sadarangani and Anr. vs. Union of India and others, JT 2012 (3) SC 469 the issue under consideration was whether an offence which was not compoundable under the provisions of the Code could be quashed. That was a case where a criminal case was registered against the accused persons under Sections 120-B, 465, 467, 468 and 471 of IPC. The allegation was that accused secured the credit facilities by submitting forged property documents as collaterals and utilized such facilities in a dishonest and fraudulent manner by opening Letters of Credit in respect of foreign supplies of goods, without actually bringing any goods but inducing the Bank to negotiate the Letters of Credit in favour of foreign suppliers and also by misusing the cash credit facility. The Court considered the earlier decisions of this Court including B.S. Joshi, Nikhil Merchant, Manoj Sharma, Shiji alias Pappu, Duncans Agro Industries Limited, Rumi Dhar (Smt.) and Sushil Suri and also referred to the order of reference in one of the cases before us. In paragraphs 17, 18, 19 and 20 of the Report it was held as under:-
“17. Having carefully considered the facts and circumstances of the case, as also the law relating to the continuance of criminal cases where the complainant and the accused had settled their differences and had arrived at an amicable arrangement, we see no reason to differ with the views that had been taken in Nikhil Merchant's case or Manoj Sharma's case (supra) or the several decisions that have come thereafter. It is, however, no coincidence that the golden thread which runs through all the decisions cited, indicates that continuance of a criminal proceeding after a compromise has been arrived at between the complainant and the accused, would amount to abuse of the process of court and an exercise in futility, since the trial could be prolonged and ultimately, may conclude in a decision which may be of any consequence to any of the other parties. Even in Sushil Suri's case on which the learned Additional Solicitor General had relied, the learned Judges who decided the said case, took note of the decisions in various other cases, where it had been reiterated that the exercise of inherent powers would depend entirely on the facts and circumstances of each case. In other words, not that there is any restriction on the power or authority vested in the Supreme Court in exercising powers under Article 142 of the Constitution, but that in exercising such powers the Court has to be circumspect, and has to exercise such power sparingly in the facts of each case. Furthermore, the issue, which has been referred to a larger Bench in Gian Singh's case (supra) in relation to the decisions of this Court in B.S. Joshi's case, Nikhil Merchant's case, as also Manoj Sharma's case, deal with a situation which is different from that of the present case. While in the cases referred to hereinabove, the main question was whether offences which were not compoundable, under Section 320 Cr.P.C. could be quashed under Section 482 Cr.P.C., in Gian Singh's case the Court was of the view that a noncompoundable offence could not be compounded and that the Courts should not try to take over the function of the Parliament or executive. In fact, in none of the cases referred to in Gian Singh's case, did this Court permit compounding of non-compoundable offences. On the other hand, upon taking various factors into consideration, including the futility of continuing with the criminal proceedings, this Court ultimately quashed the same.
18. In addition to the above, even with regard to the decision of this Court in Central Bureau ofInvestigation v. Ravi Shankar Prasad and Ors. : [(2009) 6 SCC 351], this Court observed that the High Court can exercise power under Section 482 Cr.P.C. to do real and substantial justice and to prevent abuse of the process of Court when exceptional circumstances warranted the exercise of such power. Once the circumstances in a given case were held to be such as to attract the provisions of Article 142 or Articles 32 and 226 of the Constitution, it would be open to the Supreme Court to exercise its extraordinary powers under Article 142 of the Constitution to quash the proceedings, the continuance whereof would only amount to abuse of the process of Court. In the instant case the dispute between the petitioners and the Banks having been compromised, we have to examine whether the continuance of the criminal proceeding could turn out to be an exercise in futility without anything positive being ultimately achieved.
19. As was indicated in Harbhajan Singh's case (supra), the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh's case (supra) need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field.
20. In the present case, the fact situation is different from that in Nikhil Merchant's case (supra). While in Nikhil Merchant's case the accused had misrepresented the financial status of the company in question in order to avail of credit facilities to an extent to which the company was not entitled, in the instant case, the allegation is that as part of a larger conspiracy, property acquired on lease from a person who had no title to the leased properties, was offered as collateral security for loans obtained. Apart from the above, the actual owner of the property has filed a criminal complaint against Shri Kersi V. Mehta who had held himself out as the Attorney of the owner and his family members. The ratio of the decisions in B.S. Joshi's case and in Nikhil Merchant's case or for that matter, even in Manoj Sharma's case, does not helpthe case of the writ petitioners. In Nikhil Merchant's case, this Court had in the facts of the case observed that the dispute involved had overtures of a civil dispute with criminal facets. This is not so in the instant case, where the emphasis is more on the criminal intent of the Petitioners than on the civil aspect involving the dues of the Bank in respect of which a compromise was worked out.”
The Court distinguished B.S. Joshi and Nikhil Merchant by observing that those cases dealt with different fact situation.
41. In Rajiv Saxena and others v. State (NCT of Delhi) and another, (2012) 5 SCC 627 this Court allowed the quashment of criminal case under Sections 498-A and 496 read with Section 34 IPC by a brief order. It was observed that since the parties had settled their disputes and the complainant agreed that the criminal proceedings need not be continued, the criminal proceedings could be quashed.
42. In a very recent judgment decided by this Court in the month of July, 2012 in Jayrajsinh Digvijaysinh Rana v. State of Gujarat and another, JT 2012 (6) SC 504 this Court was again concerned with the question of quashment of an FIR alleging offences punishable under Sections 467, 468, 471, 420 and 120-B IPC. The High Court refused to quash the criminal case under Section 482 of the Code. The question for consideration was that inasmuch as all those offences, except Section 420 IPC, were noncompoundable offences under Section 320 of the Code, whether it would be possible to quash the FIR by the High Court under Section 482 of the Code or by this Court under Article 136 of the Constitution of India. The Bench elaborately considered the decision of this Court in Shiji alias Pappu33 and by invoking Article 142 of the Constitution quashed the criminal proceedings. It was held as under:-
“10. In the light of the principles mentioned above, inasmuch as Respondent No. 2 - the Complainant has filed an affidavit highlighting the stand taken by the Appellant (Accused No. 3) during the pendency of the appeal before this Court and the terms of settlement as stated in the said affidavit, by applying the same analogy and in order to do complete justice under Article 142 of the Constitution, we accept the terms of settlement insofar as the Appellant herein (Accused No. 3) is concerned.
11. In view of the same, we quash and set aside the impugned FIR No. 45/2011 registered with Sanand Police Station, Ahmedabad for offences punishable Under Sections 467, 468, 471, 420 and 120-B of IPC insofar as the Appellant (Accused No. 3) is concerned. The appeal is allowed to the extent mentioned above”.
43. In Y. Suresh Babu v. State of A. P., (2005) 1 SCC 347 decided on April 29, 1987, this Court allowed the compounding of an offence under Section 326 IPC even though such compounding was not permitted by Section 320 of the Code. However, in Ram Lal and Anr. v. State of J & K, (1999 2 SCC 213 this Court observed that Y. Suresh Babu was per incuriam. It was held that an offence which law declares to be non-compoundable cannot be compounded at all even with the permission of the Court.
44. Having surveyed the decisions of this Court which throw light on the question raised before us, two decisions, one given by the Punjab and Haryana High Court and the other by Bombay High Court deserve to be noticed.
45. A five-Judge Bench of the Punjab and Haryana High Court in Kulwinder Singh and others v. State of Punjab and another, (2007) 4 CTC 769 was called upon to determine, inter alia, the question whether the High Court has the power under Section 482 of the Code to quash the criminal proceedings or allow the compounding of the offences in the cases which have been specified as non-compoundable offences under the provisions of Section 320 of the Code. The five-Judge Bench referred to quite a few decisions of this Court including the decisions in Madhu Limaye, Bhajan Lal, L. Muniswamy, Simrikhia, B.S. Joshi and Ram Lal and framed the following guidelines:
“a. Cases arising from matrimonial discord, even if other offences are introduced for aggravation of the case.
b. Cases pertaining to property disputes between close relations, which are predominantly civil in nature and they have a genuine or belaboured dimension of criminal liability. Notwithstanding a touch of criminal liability, the settlement would bring lasting peace and harmony to larger number of people.
c. Cases of dispute between old partners or business concerns with dealings over a long period which are predominantly civil and are given or acquire a criminal dimension but the parties are essentially seeking a redressal of their financial or commercial claim.
d. Minor offences as under Section 279, IPC may be permitted to be compounded on the basis of legitimate settlement between the parties. Yet another offence which remains non- compoundable is Section 506 (II), IPC, which is punishable with 7 years imprisonment. It is the judicial experience that an offence under Section 506 IPC in most cases is based on the oral declaration with different shades of intention. Another set of offences, which ought to be liberally compounded, are Sections 147 and 148, IPC, more particularly where other offences are compoundable. It may be added here that the State of Madhya Pradesh vide M.P. Act No. 17 of 1999 (Section 3) has made Sections 506(II) IPC, 147 IPC and 148, IPC compoundable offences by amending the schedule under Section 320, Cr.P.C.
e. The offences against human body other than murder and culpable homicide where the victim dies in the course of transaction would fall in the category where compounding may not be permitted. Heinous offences like highway robbery, dacoity or a case involving clear-cut allegations of rape should also fall in the prohibited category. Offences committed by Public Servants purporting to act in that capacity as also offences against public servant while the victims are acting in the discharge of their duty must remain non-compoundable. Offences against the State enshrined in Chapter-VII (relating to army, navy and air force) must remain non-compoundable.
f. That as a broad guideline the offences against human body other than murder and culpable homicide may be permitted to be compounded when the court is in the position to record a finding that the settlement between the parties is voluntary and fair.While parting with this part, it appears necessary to add that the settlement or compromise must satisfy the conscience of the court. The settlement must be just and fair besides being free from the undue pressure, the court must examine the cases of weaker and vulnerable victims with necessary caution."
To conclude, it can safely be said that there can never be any hard and fast category which can be prescribed to enable the Court to exercise its power under Section 482 of the Cr.P.C. The only principle that can be laid down is the one which has been incorporated in the Section itself, i.e., "to prevent abuse of the process of any Court" or "to secure the ends of justice". It was further held as under :
“23. No embargo, be in the shape of Section 320(9) of the Cr.P.C., or any other such curtailment, can whittle down the power under Section 482 of the Cr.P.C.
25. The only inevitable conclusion from the above discussion is that there is no statutory bar under the Cr.P.C. which can affect the inherent power of this Court under Section 482. Further, the same cannot be limited to matrimonial cases alone and the Court has the wide power to quash the proceedings even in non-compoundable offences notwithstanding the bar under Section 320 of the Cr.P.C., in order to prevent the abuse of law and to secure the ends of justice. The power under Section 482 of the Cr.P.C. is to be exercised ex-debito Justitiae to prevent an abuse of process of Court. There can neither be an exhaustive list nor the defined para-meters to enable a High Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The power under Section 482 of the Cr.P.C. has no limits. However, the High Court will exercise it sparingly and with utmost care and caution. The exercise of power has to be with circumspection and restraint. The Court is a vital and an extra-ordinary effective instrument to maintain and control social order. The Courts play role of paramount importance in achieving peace, harmonyand ever-lasting congeniality in society. Resolution of a dispute by way of a compromise between two warring groups, therefore, should attract the immediate and prompt attention of a Court which should endeavour to give full effect to the same unless such compromise is abhorrent to lawful composition of the society or would promote savagery.”
46. A three-Judge Bench of the Bombay High Court in Abasaheb Yadav Honmane v. State of Maharashtra, 2008 (2) Mh.L.J.856 dealt with the inherent power of the High Court under Section 482 of the Code vis-à-vis the express bar for compounding of the non-compoundable offences in Section 320(9) of the Code. The High Court referred to various decisions of this Court and also the decisions of the various High Courts and then stated as follows :
“The power of compounding on one hand and quashing of criminal proceedings in exercise of inherent powers on the other, are incapable of being treated as synonymous or even interchangeable in law. The conditions precedent and satisfaction of criteria in each of these cases are distinct and different. May be, the only aspect where they have any commonality is the result of exercise of such power in favour of the accused, as acquittal is the end result in both these cases. Both these powers are to be exercised for valid grounds and with some element of objectivity. Particularly, the power of quashing the FIR or criminal proceedings by the Court by taking recourse to inherent powers is expected to be used sparingly and that too without losing sight of impact of such order on the criminal justice delivery system. It may be obligatory upon the Court to strike a balance between the nature of the offence and the need to pass an order in exercise of inherent powers, as the object of criminal law is protection of public by maintenance of law and order.”
47. Section 320 of the Code articulates public policy with regard to the compounding of offences. It catalogues the offences punishable under IPC which may be compounded by the parties without permission of the Court and the composition of certain offences with the permission of the court. The offences punishable under the special statutes are not covered by Section 320. When an offence is compoundable under Section 320, abatement of such offence or an attempt to commit such offence or where the accused is liable under Section 34 or 149 of the IPC can also be compounded in the same manner. A person who is under 18 years of age or is an idiot or a lunatic is not competent to contract compounding of offence but the same can be done on his behalf with the permission of the court. If a person is otherwise competent to compound an offence is dead, his legal representatives may also compound the offence with the permission of the court. Where the accused has been committed for trial or he has been convicted and the appeal is pending, composition can only be done with the leave of the court to which he has been committed or with the leave of the appeal court, as the case may be. The revisional court is also competent to allow any person to compound any offence who is competent to compound. The consequence of thecomposition of an offence is acquittal of the accused. Sub-section (9) of Section 320 mandates that no offence shall be compounded except as provided by this Section. Obviously, in view thereof the composition of an offence has to be in accord with Section 320 and in no other manner.
48. The question is with regard to the inherent power of the High Court in quashing the criminal proceedings against an offender who has settled his dispute with the victim of the crime but the crime in which he is allegedly involved is not compoundable under Section 320 of the Code.
49. Section 482 of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, ‘nothing in this Code’ which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in Section 482 itself i.e., to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly stated that Section 482 confers no new powers on High Court; it merely safeguards existing inherent powers possessed by High Court necessary to prevent abuse of the process of any Court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress ofthe grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
50. In different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under Section 482 on either of the twin objectives, (i) to prevent abuse of the process of any court or (ii) to secure the ends of justice, is a sine qua non.
51. In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection.
52. It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under Section 482. No precise and inflexible guidelines can also be provided.
53. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment.
54. Where High Court quashes a criminal proceeding having regard to the fact that dispute between the offender and victim has been settled although offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futilityand justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrong doing that seriously endangers and threatens well-being of society and it is not safe to leave the crimedoer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without permission of the Court. In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between offender and victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to victim and the offender and victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or F.I.R if it is satisfied that on the face of suchsettlement, there is hardly any likelihood of offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will depend on its own facts and no hard and fast category can be prescribed.
55. B.S. Joshi, Nikhil Merchant, Manoj Sharma and Shiji alias Pappu do illustrate the principle that High Court may quash criminal proceedings or FIR or complaint in exercise of its inherent power under Section 482 of the Code and Section 320 does not limit or affect the powers of the High Court under Section 482. Can it be said that by quashing criminal proceedings in B.S. Joshi, Nikhil Merchant, Manoj Sharma and Shiji alias Pappu33, this Court has compounded the noncompoundable offences indirectly? We do not think so. There does exist the distinction between compounding of an offence under Section 320 and quashing of a criminal case by the High Court in exercise of inherent power under Section 482. The two powers are distinct and different although ultimate consequence may be same viz., acquittal of the accused or dismissal of indictment.
56. We find no incongruity in the above principle of law and the decisions of this Court in Simrikhia, Dharampal, Arun Shankar Shukla, Ishwar Singh, Rumi Dhar (Smt.). and Ashok Sadarangani. The principle propounded in Simrikhia14 that the inherent jurisdiction of theHigh Court cannot be invoked to override express bar provided in law is by now well settled. In Dharampal, the Court observed the same thing that the inherent powers under Section 482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Similar statement of law is made in Arun Shankar Shukla. In Ishwar Singh, the accused was alleged to have committed an offence punishable under Section 307, IPC and with reference to Section 320 of the Code, it was held that the offence punishable under Section 307 IPC was not compoundable offence and there was express bar in Section 320 that no offence shall be compounded if it is not compoundable under the Code. In Rumi Dhar (Smt.) although the accused had paid the entire due amount as per the settlement with the bank in the matter of recovery before the Debts Recovery Tribunal, the accused was being proceeded with for commission of offences under Section 120-B/420/467/468/471 of the IPC along with the bank officers who were being prosecuted under Section 13(2) read with 13(1)(d) of Prevention of Corruption Act. The Court refused to quash the charge against the accused by holding that the Court would not quash a case involving a crime against the society when a prima facie case has been made out against the accused for framing the charge. Ashok Sadarangani was again a case where the accused persons were charged of having committed offences under Sections 120- B, 465, 467, 468 and 471, IPC and the allegations were that the accusedsecured the credit facilities by submitting forged property documents as collaterals and utilized such facilities in a dishonest and fraudulent manner by opening letters of credit in respect of foreign supplies of goods, without actually bringing any goods but inducing the bank to negotiate the letters of credit in favour of foreign suppliers and also by misusing the cash-credit facility. The Court was alive to the reference made in one of the present matters and also the decisions in B.S. Joshi, Nikhil Merchant and Manoj Sharma and it was held that B.S. Joshi, and Nikhil Merchant dealt with different factual situation as the dispute involved had overtures of a civil dispute but the case under consideration in Ashok Sadarangani was more on the criminal intent than on a civil aspect. The decision in Ashok Sadarangani supports the view that the criminal matters involving overtures of a civil dispute stand on a different footing.
57. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.
58. In view of the above, it cannot be said that B.S. Joshi, Nikhil Merchant and Manoj Sharma were not correctly decided. We answer the reference accordingly. Let these matters be now listed before the concerned Bench(es).
S.L.P. (Crl.) No. 6432 of 2012 - Vilas Pandurang Pawar Vs. State of Maharashtra, (2012) 8 SCC 795 : JT 2012 (9) SC 390 : 2012 (8) SCALE 577posted Sep 17, 2012, 1:39 AM by Law Kerala [ updated Oct 26, 2012, 9:38 AM ]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
P. SATHASIVAM AND RANJAN GOGOI, JJ.
SEPTEMBER 10, 2012
Vilas Pandurang Pawar & Anr.
State of Maharashtra & Ors.
SPECIAL LEAVE PETITION (CRL. ) NO . 6432 of 2012
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 18 - Code of Criminal Procedure, 1973 - Section 438 - Anticipatory Bail - Section 438 of the Code is not applicable to persons committing an offence under the SC/ST Act.
Held:- Section 18 of the SC/ST Act is applicable to the case on hand and in view of the same, the petitioners are not entitled to anticipatory bail under Section 438 of the Code. Accordingly, the special leave petition is dismissed. However, it is made clear that the present conclusion is confined only to the disposal of this petition and the trial Court is free to decide the case on merits.
J U D G M E N T
P . Sathasivam , J .
1) The short question to be decided in this petition is whether an accused charged with various offences under the Indian Penal Code, 1860 (in short ‘IPC’) along with the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short ‘the SC/ST Act’) is entitled for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (in short ‘the Code’).
2) In the complaint filed by Savita Madhav Akhade – Respondent No.3 herein, it has been alleged that she has been residing with her family members at Khandeshwari, Taluq Karjat, Ahmednagar, Maharashtra and earning their livelihood from agricultural work. It is further alleged that the complainant is having an agricultural land adjacent to the agricultural land of one Balu Bhanudas Pawar and Arun Bhanudas Pawar. On 15.06.2012, the complainant allowed the rain water, which was accumulated, to flow into the field of Balu Bhanudas Pawar. When the complainant and her husband was standing on S.T. stand for going to Karjat, at that time, Balu Bhanudas Pawar came there and abused them on caste on account of the rain water flowing from the agricultural land of the complainant to his land. The complainant has also alleged that after their return to home, the petitioner along with other co-accused persons gathered at their house and they again abused them on their caste and assaulted the complainant and her family members by using sticks, stones, fighters etc. Thereafter, on the same day, anFIR was registered being No. 139/2012 at Karjat P.S., Ahmednagar, Maharashtra.
3) The petitioners along with other co-accused filed an application for anticipatory bail under Section 438 of the Code being Criminal Miscellaneous Application No. 712 of 2012 before the Court of Sessions Judge, Ahmednagar. By order dated 04.07.2012, the Additional Sessions Judge rejected their application for anticipatory bail.
4) Aggrieved by the order of Sessions Judge, the petitioners filed Criminal Application No. 3012 of 2012 before the High Court of Bombay, Bench at Aurangabad. By impugned judgment and order dated 19.07.2012, the High Court, while rejecting the anticipatory bail application of the present petitioners, allowed the anticipatory bail to 13 accused out of 15. Being aggrieved, the petitioners approached this court by filing special leave petition under Article 136 of the Constitution of India.
5) Heard Mr. Dilip Annasaheb Taur, learned counsel for the petitioners.
6) Taking note of the fact that the complaint not only refers to various offences under IPC but also under Section 3(1)(x) of the SC/ST Act, we posed a question to the counsel by drawing his attention to Section 18 of the SC/ST Act as to how the petitioners are entitled to anticipatory bail. It is useful to reproduce Section 18 of the SC/ST Act which reads as under:
“18. Section 438 of the Code not to apply to persons committing an offence under the Act.- Nothing in section 438 of the code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”
A reading of the above provision makes it clear that Section 438 of the Code is not applicable to persons committing an offence under the SC/ST Act. In the complaint, the complainant has specifically averred that she and her family members were insulted by the petitioners by mentioning her caste and also assaulted them by saying “Beat the Mahar so that, they should not live in the village.”
7) In order to understand the grievance of the Complainant and the claim of the petitioners, it is useful to extract the complaint dated 15.06.2012.
“COMPLAINT I. Sau. Savita Madhav Akhade, Age-45 years, Occu. Household, R/o Takali-Khandeshwari. Tq. Karjat, (Caste- Hindu Mahar) I am giving in writing the complaint in the Police Station that, I am residing on the above place with hushand – Madhav, my sons Ramesh, Umesh jointly. My husband is in service in the Beed district. Near my house, Dadasaheb Paraji Akhade, Sadashiv Paraji Akhade and Deelip Paraji Akhade are residing with their families and doing the agricultural work. There is my agricultural land in Khandeshwari area. Near my agricultural land, there is agricultural land of Balu Bhanudas Pawar and Arun Bhanudas Pawar and they are cultivating their lands. On 15.06.2012, we allowed the rain water to flow the lower side and that flow is running from previously. Today on dated 15.06.2012 at about 7.00 O’Clock, my husband stood on Takali-Khandeshwari S.T. stand for going to Karjat, at that time, Balu Bhanudas Pawar came there and said my husband that, “Mahardya”, I will not be allowed your water to come in my field and started beating him. After that, the people, who gathered along with Shivaji Anna Thombe has rescued the quarrel. After that, my husband came at home. After we came at home, while I was fetching the water from water tank, the TATA ACC belongs to Vilas Pawar in that all the people, namely, Balu Bhanudas Pawar, Vilas Pandurang Pawar, Ravi Dada Pawar, Arun Bhanudas, Pawar, Shrirang Pawar, Deepak Bhagade, Parmeshwar Indrajit Phadtare, Sudhir Chhagan Phadtare, Satish Namdeo Kirdat, Raghunath Tukaram Savant, Vitthal Raghunath Savant, Sandeep Raghunath Savant, Aba Kaka Phadtare, Dattatray Namdeo Pawar, Nephew of Balu Pawar, all R/o Takali Khandeshwari (Pawar Vasti) came there and said that, beat the Mahar so that , they should not live in the village , they are behaving arrogantly, saying that, they started beating with the weapons in hand like sticks, stones, fighters. In that quarrel, I myself, Dada Paraji Akhade, Sadashiv Paraji Akhade, Kundlik Gaikwad, Ramesh Akhade, Umesh Akhade, Rahul Akhade, Asru Akhade, Deelip Akhade are beaten at the hands of these people, so also, Nanda Deelip Akhade, Chhabubai Dadasaheb Akhade including myself were snatched on corner and beaten by these people. Thereafter, Vilas Pandurang Pawar told to RaghunathTukaram Savant to help them. Thereafter, we phoned to police and the quarrel is stopped after the Police came on the spot. Therefore, on 15.06.2012, near about 7.00 to 7.30 A.M. the persons namely, Balu Bhanudas Pawar, Vilas Pandurang Pawar, Ravi Dada Pawar, Arun Bhanudas Pawar, Shrirang Pawar, Deepak Bhagade, Parmeshwar Indrajit Phadtare, Sudhir Chhagan Phadtare, Satish Namdeo Kirdat, Raghunath Tukaram Savant, Vitthal Raghunath Savant, Sandeep Raghunath Savant, Aba Kaka Phadtare, Dattatray Namdeo Pawar, Nephew of Balu Pawar, name is not known, all R/o Takali Khandeshwari have gathered unlawful assembly and assaulted the complainant and her relatives by means of sticks, stones, fighters and also abused on caste by saying, “ Beat the Mahar so that , they should not live in the village ”, on the ground that, the rain water is allowed to flow in the filed of Balu Bhanudas Pawar. I and others have sustained injuries. We want to go in Hospital. My complaint is read over to me and it is true as stated by me. Before Hence, written Sd/- Date: 15/06/12 Police Station Officer, Karjat Police Station. Sent to: Hon’ble JMFC Karjat. Sd/- Police Station Officer Karjat Police Station.”
A perusal of the complaint shows that the petitioners and other accused persons abused the complainant and her husband by calling their caste (Mahar) and assaulted them for their action of letting rain water to their field.
8) Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.
9) The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.
10) Learned counsel appearing for the petitioners, relying on the decisions of the Delhi High Court in Dr. R.K. Sangwan & Anr. vs. State, 2009 (112) DRJ 473 (DB) and in Crl. M.C. No. 3866/2008 and Crl. M.C. No. 1222/2009 titled M.A. Rashid vs. Gopal Chandra decided on 23.03.2012 and a decision of the Orissa High Court in Ramesh Prasad Bhanja & Ors. vs. State of Orissa, 1996 Cri. L.J. 2743, submitted that in spite of the specific bar under Section 438 of the Code, the Courts have granted anticipatory bail to the accused who were charged under Section 3(1) of the SC/ST Act.
11) In view of the specific statutory bar provided under Section 18 of the SC/ST Act, the above decisions relied on by the petitioners cannot be taken as a precedent and as discussed above, it depends upon the nature of the averments made in the complaint.
12) In view of the above discussion and in the light of the specific averments in the complaint made by the complainantrespondent No.3 herein, we are of the view that Section 18 ofthe SC/ST Act is applicable to the case on hand and in view of the same, the petitioners are not entitled to anticipatory bail under Section 438 of the Code. Accordingly, the special leave petition is dismissed. However, it is made clear that the present conclusion is confined only to the disposal of this petition and the trial Court is free to decide the case on merits.
S.L.P. (Crl.) No. 6467 of 2012 - State of U.P. Vs. Sanjay Kumar, (2012) 8 SCC 537 : 2012 (8) SCALE 3posted Sep 5, 2012, 7:57 AM by Law Kerala [ updated Oct 4, 2012, 9:37 AM ]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Dr. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.
August 21, 2012
SLP (Crl.) No.6467/2012
Constitution of India, 1950 - Article 142 - Whether the direction of the court, that the convict has to serve a particular period of sentence before his case for premature release is considered, infringes upon the clemency or other statutory powers of the executive? Held, life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years, rather it always meant as the whole natural life. The punishment so awarded would be subject to any order passed in exercise of the clemency powers of the President of India or Governor of State, as the case may be.
Constitution of India, 1950 - Article 142 - Judicial Review - Power of Pardon - Uniform Standards - Not Possible - Pardons, reprieves and remissions are granted in exercise of prerogative power. There is no scope of judicial review of such orders except on very limited grounds for example non-application of mind while passing the order; non-consideration of relevant material; or if the order suffers from arbitrariness. The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly and reasonably. Administration of justice cannot be perverted by executive or political pressure. Of course, adoption of uniform standards may not be possible while exercising the power of pardon.
Constitution of India, 1950 - Article 142 - Indian Penal Code, 1860 - Sections 376 and 302 - Rape and Murder - Life Imprisonment - ‘rarest of rare cases - facts of the case did not warrant death sentence - Sentencing Policy is a way to guide judicial discretion in accomplishing particular sentencing. Generally, two criteria, that is, the seriousness of the crime and the criminal history of the accused, are used to prescribe punishment.
O R D E R
1. Delay condoned.
2. This petition has been filed against the impugned judgment and Order dated 8.2.2012 passed by the High Court of Judicature at Allahabad in Criminal Appeal (Capital Case) No. 7760 of 2009, by which the High Court has commuted the death sentence awarded to the respondent by the Sessions Court, in life imprisonment upon recording its conclusion that it was not among the `rarest of rare cases’, in which death penalty could be awarded.
3. Facts and circumstances giving rise to this petition are as follows:
A. The respondent was engaged in the work of whitewash in the house of one Shyam Ji Sharma, resident of Tulsi Vihar Colony, Varanasi and his very close relative Divya Rani was staying with him, as she was appearing for her Intermediate examination. The complainant Shyam Ji Sharma alongwith his wife Rajni Sharma had gone to the market on 24.2.2007 to purchase goods while Divya Rani (deceased) was supervising the said work. When the complainant came back with his wife they found the door of the house open and saw that the respondent had killed Divya Rani and was now trying to conceal her body in a tin box after throwing out the clothes contained in it. There was blood on Divya’s face. The complainant and his wife tried to catch hold of the respondent but he pushed them aside and ran away. They immediately lodged a First Information Report and Divya’s body was henceforth sent for postmortem examination.
B. In addition to several simple injuries on her body, a ligature mark measuring 29 cm in length, 1/2-1 cm in thickness at places all around the neck, with a pattern of pressure points 3 cm below the sternal notch and 3 cm below both the ears, was found. The doctor also found that there was laceration of the vagina and the vaginal vault, and rupturing of hymen was also observed. Asphyxia as a result of strangulation contributed to her death. The doctor also opined that the victim had been subjected to sexual assault.
C. On the basis of the post-mortem report, the charges under Sections 376 and 302 of Indian Penal Code, 1860 (hereinafter called ‘IPC’), were framed against the respondent, to which he pleaded not guilty and claimed trial.
D. After conclusion of the trial and particularly placing reliance upon the confessional statement made by the respondent under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter called ‘Cr.P.C.), the trial Court vide its judgment and order dated 5.12.2009 in Sessions Trial No. 245 of 2007 convicted the respondent of the said charges and awarded him death sentence. The reason for giving death sentence had been recorded stating that the deceased was 18 years of age and the offence committed by the respondent would have a very negative effect on society. The offence committed by the respondent was in fact rarest of the rare. The confessional statement recorded by the Judicial Magistrate was worth placing reliance upon, wherein the respondent had admitted his guilt and, therefore, taking into consideration all the facts and circumstances of the case, the Court reached the conclusion that it was a case under the category of ‘rarest of rare cases’. Therefore, death penalty was awarded to the respondent alongwith a fine of Rs.10,000/- in default of which, he would have to suffer further RI for 4 months. For the charge of rape, he was awarded lifeimprisonment, with a fine of Rs.10,000/- and in default, he would have to suffer further RI for 4 years.
E. Being aggrieved, the respondent filed an appeal and while considering his appeal alongwith the Death Reference made to the High Court, the High Court after appreciating the entire evidence, came to the conclusion that upon consideration of the totality of circumstances, the charges stood fully proved against the respondent. However, the case did not fall within the category of ‘rarest of rare cases’ where the option of awarding a sentence of imprisonment for life was unquestionably foreclosed.
Hence, this petition.
4. Learned counsel for the State has submitted that the High Court committed an error in not accepting the capital reference and in the facts and circumstances of the case, particularly, where a girl of 18 years of age has been raped and murdered, in order to ensure some deterrent effect, the High Court ought to have affirmed the death sentence, particularly, when the respondent himself has admitted his guilt on both charges, while making a confessional statement under Section 164 Cr.P.C. before the Judicial Magistrate.
5. It has been submitted at the bar that this Court has given different terms as minimum sentence to be served by convicts and,thus, the Court failed to ensure consistency in sentence and in laying down an effective and elaborate sentencing policy.
In Neel Kumar @ Anil Kumar v. State of Haryana, (2012) 5 SCC 766; and Sandeep v. State of U.P. (2012) 6 SCC 107 while commuting the awarded death sentence into a sentence of life imprisonment, it has been directed by this Court that convicts therein must serve a minimum of 30 years in jail without remissions before the consideration of their respective cases for premature release.
It has been further submitted that the aforesaid judgments reveal that there is no definite yardstick for the purpose of sentencing and that it varies from court to court to award the term of sentence. If the court awards a sentence of a particular term, subject to the clemency power of the sovereign or subject to premature release under Section 433-A Cr.P.C., then the period of sentence so fixed by the court remains meaningless.
Questions arise as to whether the direction of the court, that the convict has to serve a particular period of sentence before his case for premature release is considered, infringes upon the clemency or other statutory powers of the executive; whether such an order can be said to have been passed under Article 142 of the Constitution; and whether the court can issue such direction in exercise of the power vested in it under Article 142 of theConstitution. Whether this kind of sentence awarded by the court, if made subject to the clemency power and other statutory powers could be held merely to be a recommendation, as a result of which, while exercising such a power, the executive may bear in mind the opinion expressed by the court and take a decision, accordingly.
6. The High Court after placing reliance upon the judgments of this Court in Ramraj v. State of Chhattisgarh, AIR 2010 SC 420; Mulla & Anr. v. State of Uttar Pradesh, AIR 2010 SC 942; and Rameshbhai Chandubhai Rathod v. State of Gujarat, AIR 2011 SC 803; passed the order of sentence as under:
“We think that in the present case the ends of justice would be met if the sentence of death awarded to the appellant be substituted with a sentence of imprisonment for the whole of the remaining natural life of the appellant, subject further, to the condition that the prisoner could be eligible to any commutation and remissions that may be granted by the President and the Governor under Articles 72 and 161 of the Constitution of India or of the State Government under Section 433-A of the Code of Criminal Procedure, 1973 for good and sufficient reasons”.
7. We have gone through the impugned judgments and the evidence produced by the petitioner-State. We are of the view that the High Court is correct to the extent, that the facts of the case did not warrant death sentence.
8. Undoubtedly, a comprehensive sentencing policy is required to be laid down by the Court, however, the same would be a herculean task as it is impossible to foresee all possible circumstances which may take place in the future.
In Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka, AIR 2008 SC 3040, after considering various provisions of various statutes, a three-Judge Bench observed as under:
“The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment that subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then the Court should do? If the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the court, i.e., the vast hiatus between 14 years' imprisonment and death. It needs to beemphasized that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all.
In light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be.
…….We accordingly substitute the death sentence given to the appellant by the trial court and confirmed by the High Court by imprisonment for life and direct that he shall not be released from prison till the rest of his life.”
The Court further clarified that while passing an order of punishment, the Court deals with the powers of the State under the provisions of the Cr.P.C., the Prisons Acts and the Rules framed by the States, and not with clemency power, that is, the power of the Sovereign in this respect.
9. Another three-Judge Bench of this Court in Rameshbhai Chandubhai Rathod (supra) passed a similar order, wherein, the Bench made it clear, that the sentence of natural life would be subject to the power of clemency and powers under Section 433-A Cr.P.C.
10. The concept of Separation of Powers is inherent in the polity of the Constitution. This doctrine creates a system of checks and balances by reason of which, powers are so distributed that none of the three organs set up can become so pre-dominant, so as to disable the others from exercising and discharging the powers and functions entrusted to them. The separation of powers between the legislature, the executive and the judiciary constitutes one of the basic features of the Constitution. There is distinct and rigid separation of powers under the Indian Constitution. The scrupulously discharged duties of all guardians of the Constitution include among them, the duty not to transgress the limitations of their own constitutionally circumscribed powers by trespassing into what falls properly within the domain of other constitutional organs. (Vide: His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala & Anr., AIR 1973 SC 1461; Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr. , AIR 1975 SC 2299; and State of West Bengal & Ors. v. The Committee for Protection of Democratic Rights, West Bengal and Ors., AIR 2010 SC 1476).
11. In Jayawant Dattatraya Suryarao v. State of Maharashtra, (2001) 10 SCC 109, this Court after considering a large number of judgments, having conjoint reading of Sections 433and 433-A Cr.P.C., and taking into account the facts of the case particularly that the appellant therein had committed a heinous act of terrorism and brutal murder of two police constables who were on duty to guard the person to whom they wanted to kill held that they could not be awarded death sentence and thus, commuted the same to imprisonment for life but directed that the accused therein would not be entitled to any commutation or premature release under Section 433-A Cr.P.C., Prisons Act, Jail Manual or any other Statute and the Rules made for the purpose of commutation and remissions.
12. In Manish Goel v. Rohini Goel, AIR 2010 SC 1099, after placing reliance on a very large number of Constitution Bench judgments of this Court, the Court came to the conclusion that the Court cannot exercise its power under Article 142 of the Constitution for passing an order or granting a relief, which is totally inconsistent with, or which goes against the substantive or statutory provisions pertaining to the case.
13. The purpose of conferring the power of clemency has been explained by Chief Justice Taft in Ex p. Grossman, (1924) 69 L.ed. 527 observing as under:
“The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments as well as monarchies, to vest in some other authority than the courts power to avoid particular judgments. It is a check entrusted to the Executive for special cases. To exercise it to the extent of destroying the deterrent effect of judicial punishment would be to pervert it; but whoever is to make it useful must have full discretion to exercise it.”
14. In State of Haryana v. Jagdish, AIR 2010 SC 1690, this Court dealt with the issue of clemency power elaborately and held that such powers are unfettered and absolute. Where the State authority frame rules under Article 161 of the Constitution, the case of the convict is required to be considered under the said rules. Even if the life convict does not satisfy the requirements of the remission rules or of the short sentencing scheme, there can be no prohibition for the President or the Governor of the State, as the case may be, to exercise the power of clemency vested in them, under the provisions of Articles 72 and 161 of the Constitution. Therefore, this Court while passing such orders never meant that clemency power could not be exercised by the President/Governor. The order of the Court in such an eventuality always remains subject to the said clemency powers.
15. Sentencing Policy is a way to guide judicial discretion in accomplishing particular sentencing. Generally, two criteria, that is, the seriousness of the crime and the criminal history of the accused, are used to prescribe punishment. By introducing more uniformity and consistency into the sentencing process, the objective of the policy, is to make it easier to predict sentencing outcomes. Sentencing policies are needed to address concerns in relation to unfettered judicial discretion and lack of uniform and equal treatment of similarly situated convicts. The principle of proportionality, as followed in various judgements of this Court, prescribes that, the punishments should reflect the gravity of the offence and also the criminal background of the convict. Thus the graver the offence and the longer the criminal record, the more severe is the punishment to be awarded. By laying emphasis on individualised justice, and shaping the result of the crime to the circumstances of the offender and the needs of the victim and community, restorative justice eschews uniformity of sentencing. Undue sympathy to impose inadequate sentence would do more harm to the public system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats.Ultimately, it becomes the duty of the Courts to award proper sentence, having regard to the nature of the offence and the manner in which it was executed or committed etc. The Courts should impose a punishment befitting the crime so that the Courts are able to accurately reflect public abhorrence of the crime. It is the nature and gravity of the crime, and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. Imposition of sentence without considering its effect on social order in many cases may be in reality, a futile exercise. The survival of an orderly society demands the extinction of the life of a person who is proved to be a menace to social order and security. Thus, the Courts for the purpose of deciding just and appropriate sentence to be awarded for an offence, have to delicately balance the aggravating and mitigating factors and circumstances in which a crime has been committed, in a dispassionate manner. In the absence of any foolproof formula which may provide a basis for reasonable criteria to correctly assess various circumstances germane for the consideration of gravity of crime, discretionary judgment, in relation to the facts of each case, is the only way in which such judgment may be equitably distinguished. The Court has primarily dissected the principles into two different compartments - one being, the 'aggravating circumstances' and the other being, the 'mitigatingcircumstance’. To balance the two is the primary duty of the Court. The principle of proportionality between the crime and the punishment is the principle of 'just deserts' that serves as the foundation of every criminal sentence that is justifiable. In other words, the 'doctrine of proportionality' has valuable application to the sentencing policy under Indian criminal jurisprudence. While determining the quantum of punishment the court always records sufficient reasons. (Vide: Sevaka Perumal etc. v. State of Tamil Nadu AIR 1991 SC 1463; Ravji v. State of Rajasthan, AIR 1996 SC 787; State of Madhya Pradesh v. Ghanshyam Singh AIR 2003 SC 3191; Dhananjay Chatterjee alias Dhana v. State of W.B. AIR 2004 SC 3454; Rajendra Pralhadrao Wasnik v. The State of Maharashtra, AIR 2012 SC 1377; and Brajendra Singh v. State of Madhya Pradesh, AIR 2012 SC 1552).
16. In view of the above, we reach the inescapable conclusion that the submissions advanced by learned counsel for the State are unfounded. The aforesaid judgments make it crystal clear that this Court has merely found out the via media, where considering the facts and circumstances of a particular case, by way of which it has come to the conclusion that it was not the `rarest of rare cases’, warranting death penalty, but a sentence of 14 years or 20 years, asreferred to in the guidelines laid down by the States would be totally inadequate. Life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years, rather it always meant as the whole natural life. This Court has always clarified that the punishment so awarded would be subject to any order passed in exercise of the clemency powers of the President of India or Governor of State, as the case may be. Pardons, reprieves and remissions are granted in exercise of prerogative power. There is no scope of judicial review of such orders except on very limited grounds for example non-application of mind while passing the order; non-consideration of relevant material; or if the order suffers from arbitrariness. The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly and reasonably. Administration of justice cannot be perverted by executive or political pressure. Of course, adoption of uniform standards may not be possible while exercising the power of pardon. Thus, such orders do not interfere with the sovereign power of the State. More so, not being in contravention of any statutory or constitutional provision, the orders, even if treated to have been passed under Article 142 of the Constitution do not deserve to be labelled as unwarranted. The aforesaid orders have been passed considering the gravity of the offences in those cases that the accused would not be entitled to be considered for prematurerelease under the guidelines issued for that purpose i.e. under Jail Manual etc. or even under Section 433-A Cr.P.C.
With these observations, the Petition is dismissed.
S.L.P. (Crl.) No. 1688 of 2012 - Subramanian Swamy Vs. A. Raja, (2012) 9 SCC 257 : JT 2012 (7) SC 609 : 2012 (7) SCALE 520posted Sep 3, 2012, 9:48 AM by Law Kerala [ updated Nov 1, 2012, 10:58 AM ]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
G.S. Singhvi and K.S. Radhakrishnan
August 24, 2012
SPECIAL LEAVE PETITION (Crl.) No.1688 of 2012
I.A . No. 34 of 2012
CIVIL APPEAL No . 10660 of 2010
2G Spectrum Cases – Complaint against Finance Minister Shri P. Chidambaram - Materials on record do not show that Shri P. Chidambaram had abused his position as a Minister of Finance or conspired or colluded with A. Raja so as to fix low entry fee by non- visiting spectrum charges fixed in the year 2001. No materials are also made available even for a prima facie conclusion that Shri P. Chidambaram had deliberately allowed dilution of equity of the two companies, i.e. Swan and Unitech. No materials is also available even prima facie to conclude that Shri P. Chidambaram had abused his official position, or used any corrupt or illegal means for obtaining any pecuniary advantage for himself or any other persons, including Shri A. Raja.
O R D E R
K.S . RADHAKRISHNAN , J .
1. Common questions arise for consideration in both these applications, hence they are being disposed of by a common order. SLP (Crl.) 1688 of 2012 arises out of an order dated 04.02.2012 in CC No.01(A)/11 passed by the Special Judge, CBI (04) (2G Spectrum Cases), New Delhi. I.A. No. 34 of 2012 has been filed by the appellants in Civil Appeal No. 10660 of 2010 claiming almost identical reliefs.
2. Dr. Subramanian Swamy, the petitioner in special leave petition filed a criminal complaint on 15.12.2010 before the Special Judge, CBI of Central/Delhi to set in motion the provisions of Prevention of Corruption Act (for short ‘the PC Act’) against A. Raja, the then minister of Telecommunications and to appoint him as a prosecutor under Section 5(3) of the PC Act. The complaint was numbered as CC No.1 of 2010 and was heard on several occasions. The case was later transferred to the Special Judge, CBI (04)(2G Spectrum Cases), New Delhi. CBI, after investigation, filed a charge sheet in that complaint on 2.4.2011 regarding commission of offences during 2007- 2009 punishable under Sections 120B, 420, 468, 471 IPC and also punishable under Section 13(2) read with Section 13(1)(d) of the PC Act, against A. Raja and others. Special Judge took cognizance on 2.4.2011. CBI’s further investigation disclosed that the monetary involvement was much more and charge was laid. Special Judge tookcognizance of the aforesaid charge sheet on 25.4.2011. Both the charge sheets were clubbed together vide order dated 22.10.2011 under Section 120B read with Sections 409, 420, 468 and 471 IPC and day to day trial began from 11.11.2011. Dr. Subramanian Swamy’s complaint case No.CC 01/2011 was also taken on file and renumbered as CC.No.1(A)/2011.
3. Dr. Subramanian Swamy, the petitioner, herein, while he was being examined under Section 200, Code of Criminal Procedure in CC No. 01(A)/11 had deposed on 17.12.2011 as well as on 07.01.2012 that Shri A Raja, the first accused, could not have alone committed the offences alleged against him, but for the active connivance of Shri P. Chidambaram, the then Finance Minister. So far as the various charges were concerned, it was alleged that both Shri A. Raja and Shri P. Chidambaram were jointly and severely responsible. Reference was also made to documents including Ext. CW 1/1 to CW 1/28 with an emphasis that all those acts were done by the accused – Shri A Raja in connivance, collusion and consent of Shri P. Chidambaram and hence Shri P.Chidambaram was also guilty of commission of the offences under the P.C. Act for which Shri A. Raja was already facing trial. Further, it was also pointed out that Shri P. Chidambaram was also guilty of breach of trust on the question of national security for not disclosing that Etisalat and Telenor were black-listed by the Home Ministry. Further, it was pointed out that there was enough incriminating materials on record for carrying out the investigation against Shri P. Chidambaram and for making him an accused in the case. Further, it was also alleged that Shri P. Chidambaram had played a vital role in the subversion of the process of issuance of Letter of Intent (for short ‘LOI’), Unified Access Service (for short ‘UAS’) Licences and allocation of spectrum in the year 2007-08. Further, it was also alleged that Shri P. Chidambaram was also complicit in fixing the price of the spectrum licence at 2001 level and permitting two companies, which received the licence that is Swan Tele Communication (P) Ltd. (for short ‘Swan’) and Unitech (T.N.) Ltd. (for short ‘Unitech’) and to dilute their shares even before roll-out of their services.
4. Learned Special Judge, after referring to the various documents, produced found no substance in the allegations raised against Shri P. Chidambaram and found that he had no role in the subversion of the process of issuance of the LOI, UAS Licences and allocation of spectrum in the year 2007-08. Learned Judge concluded that there was no evidence on record that he was acting in pursuant to the criminal conspiracy, while being party to the two decisions regarding non-revision of the spectrum pricing and dilution of equity by the two companies. Consequently, the prayer made for carrying out the investigation against Shri P. Chidambaram and to make him an accused was rejected vide order dated 04.02.2012, against which SLP (Crl.) No. 1688 of 2012 has been filed.
5. Dr. Swamy appeared in person and elaborately referred to Annexure P-1 Final Report dated 03.04.2011 submitted by CBI before the Special Judge especially Para E, charge dealing with “Cheating the Government Exchequer by Non- Revision of Entry Fee”. Reference was also made to the summary of his arguments raised beforethe Special Judge for carrying out investigation against Shri P. Chidambaram and to array him as an accused in the pending criminal case. Reference was also made to the meetings that Shri P. Chidambaram had with Shri A. Raja on 30.01.2008, 29.05.2008, 12.06.2008 and later with the Prime Minister on 04.07.2008 and submitted that in those meetings both of them conspired together for a common object and purpose in fixing the pricing of spectrum at the year 2001 level and permitting distribution equally by two companies Swan and Unitech. Further, it was also pointed out that Shri P. Chidambaram was fully aware, at least, on 09.01.2008 as to what Shri A Raja was planning to do on 10.01.2008. Referring to several documents placed on record, it was pointed out that in fact Shri P. Chidambaram did not pay heed to the opinions expressed by the officials of his own Ministry and abeted to commit various illegal acts.
6. Dr. Swamy referred to various ingredients of Section 13(1)(d)(iii) of PC Act and pointed out that a bare reading of the above mentioned provision shows that mens rea or criminal intent was not an essential ingredient of thatSection. Reference was made to the judgment of this Court reported in Indo China Steam Navigation Co. v. Jasjeet Singh [1964(6) SCR 594], State of Maharashtra v. Hans George [1965 (1) SCR 123] and R.S. Joshi, Sales Tax Officer, Gujarat and Others v. Ajit Mills Ltd. and Another [1977 (4) SCC 98] and submitted the ratio of above judgments indicate that certain criminal offences imposing punishment of incarceration need not require mens rea instead strict liability as enumerated in the statute itself. Dr. Swamy pointed out that the above mentioned statutory provision would indicate that the emphasis is on “obtains” and “public interest”. Dr. Subramanian Swamy submitted that the learned trial judge had failed to notice those vital aspects and has wrongly rejected the prayer for conducting investigation against Shri P. Chidambaram and to array him as an accused.
7. Shri Prashant Bhushan, learned counsel appearing for the applicants in I.A. No. 34 of 2012 has indicated the necessity of conducting a thorough investigation by the CBI into the role of the then Finance Minister Shri P.Chidambaram in the matter of fixing the spectrum pricing and allowing the sale of equity by Swan and Unitech. Learned counsel pointed out that in that process, Shri P. Chidambaram had over-ruled the officers of his own Ministry who favoured auction / market-based pricing of spectrum and instead allowed various companies to make windfall profits. Further, it was also stated that he had allowed the above-mentioned companies to sell off their shares without charging any Government’s share of its premium on account of spectrum valuation and without enforcing his own agreement with the then Telecom Minister.
8. Learned counsel made specific reference to para 2.1.2(3) and submitted that the Group of Ministers (GoMs) had in their recommendation dated 30.10.2003 stated that the Department of Telecom (DoT) and the Ministry of Finance (MoF) would discuss and finalise spectrum pricing formula which would include incentive for efficient use of spectrum as well as disincentive for suboptimal usages. Learned counsel pointed out that the aboverecommendation would clearly indicate that MoF officials were fully aware that unless such ‘concurrence’ based on discussion and finalization of spectrum pricing formula between the DoT and the MoF had been established, the DoT could not have moved ahead and spectrum could have been allocated at 2001 rates in the year 2007-08.
9. Learned counsel also referred to the “Position Paper on Spectrum Policy” prepared by the Department of Economic Affairs (revised on 03.01.2008) which was forwarded along with covering letter dated 09.01.2008. The Telecom Commission meeting which was to take place on 09.01.2008 was postponed to 15.01.2008. Further, it was pointed out that before the scheduled meeting of the Telecom Commission on 15.01.2008, DoT had already issued 122 LOIs for UAS licenses on 10.01.2008 and that LOIs were converted into licenses during 27.02.2008 to 7.3.2008 and the spectrum allocation was started from 22.4.2008 and completed 6.5.2009. Learned counsel pointed out that, the then Finance Minister had enoughtime to stop the scam, since the price was not fixed by the DoT and MoF as authorized by the GoMs (2003).
10. Further, it was also stated that before the Telecom Commission could meet, then Finance minister made a note on 15.01.2008 to the Prime Minister of India pointing out that the note did not deal with the need, if any, to revise entry fee or the rate of revenue share, and also indicated the said note dealt with spectrum charges for 2G spectrum. Further, it was also stated by Shri Prashant Bhushan that then Finance Minister and Shri A Raja had met on 30.01.2008 to discuss the issue of licensing and spectrum pricing. In that meeting, then Finance Minister had announced the issue of revising entry fee of 122 LOIs already issued by DoT and that they were not seeking to revisit the current regimes for entry fee or for revenue share.
11. Shri Bhushan also referred to the approach paper by Department of Telecom Commission, which was forwarded by the Secretary, DoT to the Finance Secretary, MoF, which would indicate that the officials of Finance Ministry werekeen to stop the allocation of spectrum of 4.4 MHz and were suggesting the allocation of spectrum by way of auction.
12. Learned counsel also referred to the sequel note to the Department of Economic Affairs dated 11.02.2008 which according to the learned counsel, would indicate that the MoF had deferred from the position of DoT and stated that there was no contractual obligation to allot a start-up spectrum of 4.4 MHz to every licencee free of cost and that the entire range of the spectrum allotted should be priced and that the issue of level playing field could be addressed by charging the price even on existing operators. Learned counsel pointed out that in spite of objection raised by the officials of Ministry, the Finance Minister acted in connivance with Shri A Raja and Shri A Raja went ahead and issued 122 licences which could have been prevented by Shri P. Chidambaram, had he stood with the views of his officials.
13. Learned counsel also referred to note dated 07.04.2008 sent by the Finance Secretary after discussionwith the Finance Minister wherein it was noticed that DoT was agreeable for pricing of spectrum beyond 4.4 MHz but wanted that to be deferred till auction of 3G and WIMax was completed. Reference was also made by the learned counsel to the note dated 03.04.2008 of the Additional Secretary (EA) and pointed out that then Finance Minister had agreed that spectrum usage charge should be increased reflecting the scarcity value of spectrum as indicated in their note dated 11.02.2008. Further, the note also indicated the Finance Minister’s view that they should insist, in principle, on pricing spectrum beyond 4.4 MHz although details could be worked out after the auction of 3G spectrum.
14. Shri Prashant Bhushan also referred to the Office Memorandum, MoF dated 8.4.2008 prepared by Shri Govind Mohan, Director which, according to the learned counsel reflected the MoF’s original position of 11.2.2008 on the issue of subjecting the entire spectrum to specific pricing. Learned counsel alleged that the note issued was later withdrawn and the officer was reprimanded and afresh Office Memorandum was issued by the same Director. Learned counsel compared the original Office Memorandum dated 08.04.2008 and the new Office Memorandum and submitted that the original Office Memorandum had required the entire range of spectrum to be specifically priced and the revised Office Memorandum which was prepared on 9.4. 2008 had presented with a date of 8.4.2008, specifically sought to exclude start-up spectrum upto 4.4 MHz from being specifically charged, ensuring the entry fee of 2001 that was fixed by the then Telecom Minister in 2008, was not revised. Shri Bhushan submitted that the officer had to apologize for his deeds and on 16.04.2008, the then Finance Minister accepted the apology of the officer.
15. Learned counsel also referred to letter dated 21.4. 2008 sent by the then Finance Minister to Shri A Raja and submitted that the spectrum issue “non paper” was silent on the issue of entry fee for start-up spectrum for 122 licences already issued and the discussion mainly concentrated on the charging for spectrum beyond 4.4 MHz.Reference was also made to the Finance Secretary’s updated note dated 29.04.2008 which, according to the learned counsel, reflected the same position preferred by MoF. Both Shri A Raja and Shri P. Chidambaram met on 29.05.2008 as well as on 12.06.2008. Learned counsel also pointed out that on 4.7.2008, the then Finance Minister, Shri A Raja along with Finance Secretary met the Prime Minister. By the time, LOIs were already issued which were converted to licences, allocation of start-up spectrum was started. Learned counsel also made reference to the CAG report and the pointed out the reference made to Shri P. Chidambaram. Reference was also made to the briefing made by the Prime Minister, to the Media on 16.2.2011 and also the address made by the Prime Minister in Rajya Sabha on 24.2.2011.
16. Learned counsel also pointed out that there was no justification, in any view, in allotting the start-up spectrum 4.4 MHz to every licensee free of cost and submitted that the entire range of spectrum allotted should have been priced. Learned counsel pointed out that one price ofspectrum between 4.4 MHz and 6.2MHz and different price for spectrum between beyond 6.2 MHz would be nontransparent and illegal. Learned counsel pointed out that in fact the MoF had initially objected the above stand of DoT but subsequently yielded after the meeting Shri P. Chidambaram had with Shri A Raja.
17. Learned counsel pointed out all those facts which would clearly indicate that Shri P. Chidambaram the then Finance Minister was also equally responsible. Non-revision of spectrum price though specifically recommended by the GoMs in the year 2003 would indicate, according to the counsel, that Shri P. Chidambaram colluded up with Shri A Raja in non-auctioning of the spectrum and went on for allotment of first come first served basis at 2001 rates. Further, it was also pointed out that Shri P. Chidambaram had not revised his position from giving away 4.4 MHz of spectrum at 2001 prices and giving away 6.2 MHz of spectrum at 2001, thus causing huge loss to the exchequer. Further, he was also instrumental along with Shri A. Raja for allowing companies like Swan and Unitech to sell off their shares without charging any Government’s share of itspremium. Counsel therefore prayed for a direction of CBI to conduct a thorough investigation / further investigation into the role of Shri P. Chidambaram in 2G spectrum scam under the close scrutiny of this court.
18. We heard Dr. Subramnian Swamy, appearing in person and Shri Prashant Bhushan, learned counsel at length. Arguments raised give rise to the following questions:
(1) Whether Shri P. Chidambaram has conspired with Shri A Raja in fixing the price of the spectrum at 2001 level thereby committed the offence of criminal misconduct.
(2) Whether Shri P. Chidambaram by corrupt and illegal means obtained for himself or for Shri Raja any valuable thing or pecuniary advantage.
(3) Whether Shri P. Chidambaram has deliberately allowed dilution of equity by Swam Telecom Pvt. Ltd. and Unitech Wireless (Tamil Nadu) Ltd. at the cost of public exchequer.
(4) Whether Shri P. Chidambaram has conspired with Shri A. Raja in fixing one price of spectrum between 4.4 MHz and 6.2 MHz and another price for spectrum beyond 6.2 MHz for unlawful gain, for benefiting the licensees.
(5) Whether the above mentioned acts fall within the scope of Section 13(1)(d)(i) to (ii) of the P.C. Act and the materials on record are sufficient to conclude so.
19. Shri P. Chidambaram was the Finance Minister of the Union of India from 22.5.2004 to 31.11.2008. Brief reference to facts prior to 22.5.2004 has already been made by this Court in its judgment in Centre for Public Interest Litigation and Others etc. v. Union of India and Others (2012) 3 SCC 1 and hence not repeated, but reference to few facts is necessary to appreciate and understand the alleged involvement of Shri P. Chidambaram in the 2G Scam.
20. The Telecom Regulatory Authority of India (for short ‘TRAI’), a statutory authority constituted under the Telecom Regulatory Authority of India Act, 1997 (for short “1997 Act”), had made certain recommendations on 27.10.2003 on UAS Licence for the allocation of spectrum under Sections 11(1)(a)(i), (ii), (iv) and (vii) of the 1997 Act. Para 7.30 of the recommendations emphasized the necessity of efficient utilisation of spectrum by all service providers and indicated that it would make further recommendations on efficient utilisation of spectrum, spectrum pricing, availability andspectrum allocation procedure and that the DoT might issue spectrum related guidelines based on its recommendations.
21. A GoMs was constituted on 10.9.2003 with the approval of the then Prime Minister to consider various issues as to how to ensure release of adequate spectrum for the telecom sector, including the issues relating to merger and acquisition in the telecom sector and to recommend how to move forward. GoMs made detailed recommendations on 30.10.2003. Para 2.1.2(3) of the recommendations reads as follows:
“(3) The Department of Telecom and Ministry of Finance would discuss and finalise spectrum pricing formula which will include incentive for efficient use of spectrum as well as disincentive for sub-optimal usages.”
Para 2.1.2(4) stated that the allotment of additional spectrum would be transparent, fair and equitable, avoiding monopolistic situation regarding spectrum allotment usage. Para 2.4.6(ii) of the recommendations reads as follows:
“(ii) The recommendations of TRAI with regard to implementation of the Unified Access Licensing Regime for basic and cellular services may be accepted.”
22. The recommendations of the GoMs were accepted by the Council of Ministers on 31.10.2003, the meeting of which was chaired by the then Prime Minister. The then Minister of Communications on 24.11.2003 accepted the recommendations that entry fee for new UAS licensees would be the entry fee of the fourth cellular operator and where there was no fourth cellular operator, it would be the entry fee fixed by the Government for the basic operator. A decision was also taken by the then Minister for Communications for the grant of spectrum licenses on firstcome- first served basis. Shri Dayanidhi Maran became the Minister for Telecommunications on 26.5.2004.
23. TRAI later made comprehensive recommendations on 13.5.2005 on various issues relating to spectrum policy i.e. efficient utilisation of spectrum, spectrum allocation, spectrum pricing, spectrum charging and allocation for other terrestrial wireless links. On 23.2.2006, the Prime Minister approved the constitution of a GoMs consisting of the Minister of Defence, Home Affairs, Finance, Parliamentary Affairs, Information and Broadcasting and Communications, to look into issues relating to vacation of spectrum. DeputyChairman, Planning Commission was a special invitee. The Terms of Reference of GoMs, inter alia, suggested a spectrum pricing policy. Shri Dayanidhi Maran, the then Minister of Telecommunications wrote a letter dated 28.2.2006 to the Prime Minister indicating that the terms of reference of the GoMs would impinge upon the work of his Ministry since wider in scope and requested that they be modified in accordance with the draft enclosed along with his letter. The draft forwarded by the Minister, however, did not contain any formula for spectrum pricing. However, on 7.12.2006, the Cabinet Secretary conveyed the approval of the Prime Minister to the modified terms of reference which did not contain any formula for spectrum pricing.
24. DoT, later, vide its letter dated 13.4.2007 requested TRAI to furnish its recommendations under Section 11(1)(a) of the 1997 Act on the issues of limiting the number of access providers in each service area and for the review of the terms and conditions in the access provider licence mentioned in the letter. Shri Dayanidhi Maran had by the time resigned on 14.5.2007 and Shri A. Raja became the Minister for Telecommunications on 16.5.2007.25. TRAI made its recommendations on 28.8.2007. One of the recommendations made by TRAI was that in future all spectrums excluding the spectrum in 800, 900 and 1800 MHz bands in 2G services should be auctioned. Para 2.73 of the recommendations is of some importance and hence extracted hereunder:
“2.73. .............The Authority in the context of 800, 900 and 1800 MHz is conscious of the legacy i.e. prevailing practice and the overriding consideration of level playing field. Though the dual charge in present form does not reflect the present value of spectrum it needed to be continued for treating already specified bands for 2G services i.e. 800, 900 and 1800 MHz. It is in this background that the Authority is not recommending the standard options pricing of spectrum, however, it has elsewhere in the recommendation made a strong case for adopting auction procedure in the allocation of all other spectrum bands except 800, 900 and 1800 MHz.”
Paras 2.74, 2.75, 2.76, 2.77, 2.78 and 2.79 are also relevant for determining the various issues which arise for consideration in this case and hence given below for ready reference:
“2.74 Some of the existing service providers have already been allocated spectrum beyond 6.2 MHz in GSM and 5 MHz in CDMA as specified in the license agreements without charging any extra one time spectrum charges. The maximumspectrum allocated to a service provider is 10 MHz so far. However, the spectrum usage charge is being increased with increased allocation of spectrum. The details are available at Table 8.
2.75 The Authority has noted that the allocation beyond 6.2 MHz for GSM and 5 MHz for CDMA at enhanced spectrum usage charge has already been implemented. Different licensees are at different levels of operations in terms of the quantum of spectrum. Imposition of additional acquisition fee for the quantum beyond these thresholds may not be legally feasible in view of the fact that higher levels of usage charges have been agreed to and are being collected by the Government. Further, the Authority is conscious of the fact that further penetration of wireless services is to happen in semi-urban and rural areas where affordability of services to the common man is the key to further expansion.
2.76 However, the Authority is of the view that the approach needs to be different for allocating and pricing spectrum beyond 10 MHz in these bands i.e. 800, 900 and 1800 MHz. In this matter, the Authority is guided by the need to ensure sustainable competition in the market keeping in view the fact that there are new entrants whose subscriber acquisition costs will be far higher than the incumbent wireless operators. Further, the technological progress enables the operators to adopt a number of technological solutions towards improving the efficiency of the radio spectrum assigned to them. A cost-benefit analysis of allocating additional spectrum beyond 10 MHz to existing wireless operators and the cost of deploying additional CAPEX towards technical improvements in the networks would show that there is either a need to place a cap on the maximum allocable spectrum at 10 MHz or to impose framework of pricing through additional acquisition fee beyond 10 MHz.The Authority feels it appropriate to go in for additional acquisition fee of spectrum instead of placing a cap on the amount of spectrum that can be allocated to any wireless operator. In any case, the Authority is recommending a far stricter norm of subscriber base for allocation of additional spectrum beyond the initial allotment of spectrum. The additional acquisition fee beyond 10 MHz could be decided either administratively or through an auction method from amongst the eligible wireless service providers. In this matter, the Authority has taken note of submissions of a number of stakeholders who have cited evidences of the fulfillment of the quality of service benchmarks of the existing wireless operators at 10 MHz and even below in almost all the licensed service areas. Such an approach would also be consistent with the Recommendation of the Authority in keeping the door open for new entrant without putting a limit on the number of access service providers.
2.77 The Authority in its recommendation on "Allocation and pricing of spectrum for 3G and broadband wireless access services" had recommended certain reserve price for 5 MHz of spectrum in different service areas. The recommended price are as below:
Service areas Price (Rs. in million) for 2 MHz x 5 MHz Mumbai, Delhi and Category A 800 Chennai, Kolkata and Category B 400 Category C 150 The Authority recommends that any licensee who seeks to get additional spectrum beyond 10 MHz in the existing 2G bands i.e. 800,900 and 1800MHz after reaching the specified subscriber numbers shall have to pay a onetime spectrum charge at the above mentioned rate on prorata basis for allotment of each MHz or part thereof of spectrum beyond 10 MHz. For one MHz allotment in Mumbai, Delhi and Category A service areas, the service provider will have to pay Rs. 160 million as one time spectrum acquisition charge.
2.78 As far as a new entrant is concerned, the question arises whether there is any need for change in the pricing methodology for allocation of spectrum in the 800, 900 and 1800 MHz bands. Keeping in view the objective of growth, affordability, penetration of wireless services in semi-urban and rural areas, the Authority is not in favour of changing the spectrum fee regime for a new entrant. Opportunity for equal competition has always been one of the prime principles of the Authority in suggesting a regulatory framework in telecom services. Any differential treatment to a new entrant vis-a-vis incumbents in the wireless sector will go against the principle of level playing field. This is specific and restricted to 2G bands only i.e. 800, 900 and 1800 MHz. This approach assumes more significance particularly in the context where subscriber acquisition cost for a new entrant is likely to be much higher than for the incumbent wireless operators.
2.79 In the case of spectrum in bands other than 800, 900 and 1800 MHz i.e. bands that are yet to be allocated, the Authority examined various possible approaches for pricing and has come to the conclusion that it would be appropriate in future for a market based price discovery systems. In response to the consultation paper, a number of stakeholders have also strongly recommended that the allocation of spectrum should be immediately de-linked from the license and the future allocation should be based on auction. The Authority in its recommendation on "Allocation and pricing of spectrum for 3G and broadband wireless access services" has also favored auction methodology for allocation of spectrum for 3G and BWA services. It is therefore recommended that in future all spectrum excluding the spectrum in 800, 900 and 1800 bands should be auctioned so as to ensure efficient utilization of this scarce resource. In the 2G bands (800 MHz/900 MHz/1800 MHz), the allocation through auction may not be possible as the service providers were allocated spectrum at different times of their license and the amount of spectrum with them varies from 2X4.4 MHz to 2X10 MHz for GSM technology and 2X2.5 MHz to 2X5 MHz in CDMA technology. Therefore, to decide the cut off after which the spectrum is auctioned will be difficult and might raise the issue of level playing field."
26. The Internal Committee of DoT considered the above recommendations made by TRAI and its report was placed before the Telecom Commission on 10.10.2007. The Finance Secretary and other three non-permanent members were not informed of that meeting, but attended only by the officials of DoT and the report of the Internal Committee was approved by the Telecom Commission. Shri A. Raja accepted the recommendations of Telecom Commission. Consequently, the recommendations of TRAI dated 28.8.2007 stood approved by the Internal Committee of DoT, Telecom Commission and DoT. DoT, it may be noted, did not get intouch with the Ministry of Finance to discuss and finalise the spectrum pricing formula which had to include incentive for efficient use of spectrum as well as disincentive for suboptimal usage in terms of the Cabinet decision of 2003.
27. Above facts would indicate that neither Shri P. Chidambaram nor the officials of MoF had any role in the various decisions taken by TRAI on 28.8.2007, decision taken by the Internal Committee of DoT and the decision of the Telecom Commission taken on 10.10.2007.
28. DoT then went ahead to process applications received for UAS licences. Between 24.9.2007 and 1.10.2007, over 300 applications were received. The Member (Technology), Telecom Commission and ex-officio Secretary to the Government of India sent a letter dated 26.10.2007 to the Secretary, Department of Legal Affairs, Ministry of Law and Justice seeking the opinion of the Attorney General of India/Solicitor General of India for dealing with those applications for licences. The Law Secretary placed the papers before the Minister of Law and Justice on 1.11.2007 who had recommended that the entire issue be considered byan Empowered GoMs and, in that process, opinion of the Attorney General of India be obtained. When the note of the Law Minister was placed before Shri A. Raja, he recorded a note on 2.11.2007 calling for discussion. Shri A. Raja, however, on the same day, ordered the issuance of LoIs to new applicants as per the then existing policy and authorised Shri R. K. Gupta, ADG (AS-1) for signing the LoIs on behalf of the President of India. Shri A. Raja had also ordered for the issuance of LoI to the applicants whose applications had been received up to 25.9.2007 and also sent a letter bearing DO No. 20/100/2007-AS-I dated 2.11.2007 to the Prime Minister and took strong objection to the suggestion made by the Law Minister by describing his opinion as totally out of context.
29. The Prime Minister, however, vide his letter dated 2.11.2007 had requested Shri A. Raja to give urgent consideration to the various issues raised with a view to ensuring fairness and transparency and requested him to inform the Prime Minister of the position before taking any further action. On the same day, Shri A.Raja sent a reply to the Prime Minister brushing aside the suggestions made bythe Prime Minister pointing out that it would be unfair, discriminatory, arbitrary and capricious to auction the spectrum to new applicants as it would not give them a level playing field. The relevant portion of Para 3 of Shri A. Raja’s letter is extracted below:
"3. Processing of a large number of applications received for fresh licenses against the backdrop of inadequate spectrum to cater to overall demand The issue o f auction o f spectrum was considered by the TRAI and the Telecom Commission and was not recommended as the existing licence holders who are already having spectrum upto 10 MHz per Circle have got it without any spectrum charge . It wil l be unfair , discriminatory, arbitrary and capricious to auction the spectrum to new applicants as it wil l not give them leve l playing field . I would like to bring it to your notice that DoT has earmarked totally 800 MHz in 900 MHz and 1800 MHz bands for 2G mobile services. Out of this, so for a maximum of about 35 to 40 MHz per Circle has been allotted to different operators and being used by them. The remaining 60 to 65 MHz, including spectrum likely to be vacated by Defence Services, is still available for 2G services. Therefore, there is enough scope for allotment of spectrum to few new operators even after meeting the requirements of existing operators and licensees. An increase in number of operators will certainly bring real competition which will lead to better services and increased teledensity at lower tariff. Waiting for spectrum for long after getting licence is not unknown to theIndustry and even at present Aircel, Vodafone, Idea and Dishnet are waiting for initial spectrum in some Circles since December 2006."
30. Shri P. Chidambaram, it is seen, had no role in the exchange of those communications or the expression of opinions of the decisions taken between Shri A. Raja and the Prime Minister’s Office, a situation created by Shri A. Raja and the officials of DoT. Neither Shri P. Chidambaram nor the officials of the MoF did figure in those communications and hence the allegation of involvement of Shri P. Chidambaram in the 2G Scam has to be examined in that background.
31. The Secretary, DoT made a presentation of the spectrum policy on 20.11.2007 to the Cabinet Secretary. Finance Secretary, Dr. Subbarao, who had witnessed the presentation sent a letter dated 22.11.2007 to the Secretary, DoT to know whether proper procedure had been followed with regard to financial diligence. The operative portion of the letter reads as follows:
“2. That purpose of this letter is to confirm if proper procedure has been followed with regard to financial diligence. In particular, it is not clear how the rate of Rs.1600 crore, determined as farback as in 2001, has been applied for a license given in 2007 without any indexation, let alone current valuation. Moreover, in view of the financial implications, the Ministry of Finance should have consulted in the matter before you had finalized the decision.
3. I request you to kindly review the matter and revert to us as early as possible with responses to the above issues. Meanwhile, all further action to implement the above licenses may please be stayed. Will you also kindly send us copies of the letters of permission given and the date?”
32. DoT replied to the Finance Secretary vide letter dated 29.11.2007. the operative portion of the same reads as follows:
“As per Cabinet decision dated 31st October, 2003, accepting the recommendations of Group of Ministers (GoM) on Telecom matters, headed by the then Hon’ble Finance Minister, it was inter alia decided that “The recommendations of TRAI with regard to implementation of the Unified Access Licensing Regime for basic and cellular services may be accepted. DoT may be authorized to finalize the details of implementation with the approval of the Minister of Communications and IT in this regard including the calculation of the entry fee depending on the date of payment based on the principle given by TRAI in its recommendations…….”
33. DoT also pointed out in that letter that the entry fee was also finalised for UAS regime in 2003 based on the decision of the Cabinet and it was decided to keep the entry fee for theUAS license the same as the entry fee of the fourth cellular operator, which was based on a bidding process in 2001. Further, it was also pointed out that the dual technology licenses were licenses based on TRAI recommendations of August 2007 and that TRAI in its recommendations dated 28.8.2007 had not recommended any changes in entry fee/ annual license fee and hence no changes were considered in the existing policy.
34. Shri A. Raja then sent a letter dated 26.12.2007 to the Prime Minister, Paras 1 and 2 of that are extracted below:
“1. Issue of Letter of Intent (LOI): DOT follows a policy of First-cum-First Served for granting LOI to the applicants for UAS licence, which means, an application received first will be processed first and if found eligible will be granted LOI.
2. Issue of Licence: The First-cum-First Served policy is also applicable for grant of licence on compliance of LOI conditions. Therefore, any applicant who complies with the conditions of LOI first will be granted UAS licence first. This issue never arose in the past as at one point of time only one application was processed and LOI was granted and enough time was given to him for compliance of conditions of LOI. However, since the Government has adopted a policy of "No Cap" on number of UAS Licence, a large number of LOI's are proposed to be issued simultaneously. In these circumstances, an applicant who fulfils the conditions of LOI firstwill be granted licence first, although several applicants will be issued LOI simultaneously. The same has been concurred by the Solicitor General of India during the discussions."
DDG (AS), DoT, after a few days, prepared a note incorporating therein the changed first-come-first-served policy to which reference was made in the letter addressed to the Prime Minister.
35. We have no information as to whether the PMO had replied to the letter dated 26.12.2007 sent by A. Raja. After brushing aside the views expressed by Dr. D. Subbarao in his letter dated 22.11.2007, views expressed by the Minister of Law and Justice on 1.11.2007, as well as the views expressed by the Prime Minister on 2.11.2007, A. Raja and the officials of DoT went ahead in implementing the policy of first-come-first-served basis for the grant of UAS licenses for which it is seen, no further objection had been raised by the Prime Minister’s Office.
36. Telecom Commission meeting was then scheduled to be held on 9.1.2008 to consider two important issues i.e. performance of telecom sector and pricing of spectrum butthe meeting was postponed to 15.1.2008. But, on 10.1.2008, a press release was issued by DoT stating that TRAI on 28.8.2007 had not recommended any cap on the number of access service providers in any service area. Further, it was also stated that the Government had accepted the recommendations of TRAI and that DoT had decided to issue LoIs to all the eligible applicants on the date of application who applied up to 25.9.2007. Further, it was also stated in the press release that DoT had been implementing a policy of first-come-first-served for grant of UAS licences under which initially an application which was received first would be processed first and thereafter if found eligible would be granted LoI and then whosoever complied with the conditions of LoI first would be granted UAS licence.
37. Another press release was issued on 10.1.2008 by DoT requesting the applicants to submit compliance with the terms of LoIs. Soon after obtaining the LoI, three of the successful applicants offloaded their stakes for thousands of crores in the name of infusing equity, the details are as under:
“(i) Swan Telecom Capital Pvt. Ltd. (now known as Etisalat DB Telecom Pvt. Ltd.) which was incorporated on 13.7.2006 and got UAS Licence by paying licence fee of Rs. 1537 crores offloaded its 45% (approximate) equity in favour of Etisalat of UAE for over Rs.3,544 crores.
(ii) Unitech which had obtained licence for Rs.1651 crores offloaded its stake 60% equity in favour of Telenor Asia Pte. Ltd., a part of Telenor Group (Norway) in the name of issue of fresh equity shares for Rs.6120 crores between March, 2009 and February, 2010.
(iii) Tata Tele Services transferred 27.31% of equity worth Rs. 12,924 crores in favour of NTT DOCOMO.
(iv) Tata Tele Services (Maharashtra) transferred 20.25% equity of the value of Rs. 949 crores in favour of NTT DOCOMO.”
38. Materials made available would not indicate any role played by Shri P. Chidambaram on the steps taken by Shri A. Raja and DoT, reference of which have elaborately been made in the previous paragraphs of this judgment. The views expressed by Dr. D. Subbarao in his letter dated 22.11.2007 were already brushed aside by A. Raja and DoT officials and a communication dated 29.11.2007 was already sent to Dr. Subbarao followed by a letter to the Prime Minister on 26.12.2007.39. MoF then sent a letter on 9.1.2008, following the letter of Dr. D. Subbarao dated 22.11.2007 as well as the reply received from DoT on 29.11.2007, which was prepared and sent as instructed by Shri P. Chidambaram for presentation in the meeting of the Telecom Commission which was held on 10.1.2008. Note referred to the recommendations of GoMs for discussing and finalizing the spectrum pricing formula by DoT and Ministry of Finance. Paras 6.3 and 8.4 of the note which was prepared as instructed by Shri P. Chidambaram are relevant and hence are extracted hereunder:
“6.3 Given the fact that there are reportedly over 575 applications pending with DoT (including 45 new applicants) there is a case for reviewing the entry fee fixed in 2001. This is an administratively fixed fee. Therefore any change should be governed by transparent and objective criteria applicable uniformly to all new entrants.
8.4 The most transparent method of allocation of spectrum would be by auction. However, there are two caveats to the auction method. (a) The ways in which the existing licensees in GSM and CDMA would be eligible to participate in the auction vis-a-vis the new entrants; and(b) The advantages and disadvantages of the method itself. A detailed table is placed at Annexure V.”
40. Shri P. Chidambaram, following the views expressed by the Ministry of Finance on 9.1.2008, on his instructions, also sent a note to the Prime Minister on 15.1.2008 on spectrum charges. Noticeably, this letter was sent at a time when Finance Secretary’s view was rejected by Shri A. Raja and the officers of the DoT and that Shri A. Raja’s views were not overturned even by the Prime Minister’s Office. Therefore, the allegation that the attempt of Shri P. Chidambaram was to hide the illegalities in the award of licences is unfounded. On the other hand, Shri P. Chidambaram was advocating the fact that the most important method of allocating the spectrum would be through auction. Shri P. Chidambaram also made a reference in the note of the recommendations made in the year 2003 by TRAI and GoMs and stated that the recommendations note did not deal with the need, if any, to revise entry fee or the rate of revenue share, but dealt with the spectrum charges for 2G spectrum. Para 10 of the note sent by Shri P. Chidambaram reads as follows:
“10. Spectrum is a scarce resource. The price for spectrum should be based on its scarcity value and efficiency of usage. The most transparent method of allocating spectrum would be through auction. The method of auction will face the least legal challenge, if Government is able to provide sufficient information on availability of spectrum, that would minimise the risks and, consequently, fetch better prices at the auction. The design of the auction should include a reserve price.”
Further, para 13 of the note reads as follows:
“13. This leaves the question about licensees who hold spectrum over and above the start up spectrum. In such cases, the past may be treated as a closed chapter and payments made in the past for additional spectrum (over and above the start up spectrum) may be treated as the charges for spectrum for that period. However, prospectively, licensee should pay for the additional spectrum that they hold, over and above the start-up spectrum, at the price discovered in the auction. This will place old licensees, existing licensee seeking additional spectrum and new licensees on par so far as spectrum charges are concerned.”
Shri P. Chidambaram had indicated his mind in the note sent to the Prime Minister.
41. Prime Minister’s Office, it is seen, had not taken any contrary view to that of Shri P. Chidambaram and, in any view, no materials were also made available when this Court was dealing with the case relating to cancellation oflicences, wherein Union of India was a party. In such circumstances, it is difficult to conclude, on the materials available, that P. Chidambaram had conspired with A. Raja in subverting the process of issuance of LoI, UAS Licences and allocation of spectrum.
42. Shri P. Chidambaram met Shri A. Raja on 30.1.2008 for discussions on spectrum charges and one has to appreciate the discussions held in the light of the facts discussed above. Meeting was held at a time, it may be noted, when Shri A. Raja and DoT officials had already brushed aside the views expressed by Dr. D. Subbarao in his letter dated 22.11.2007, the views expressed by the Department of Economic Affairs in the note dated 3.1.2008 and in the absence of any response from PMO on the note dated 15.1.2008 sent by Shri P. Chidambaram. Meeting dated 30.1.2008 and subsequent meetings Shri P. Chidambaram had with Shri A. Raja on 29.5.2008, 12.6.2008 and with the Prime Minister on 4.7.2008 have to be appreciated in the light of the facts already discussed.
43. Shri P. Chidambaram, it is seen under the abovementioned circumstances, had taken up the stand in the meeting held on 30.1.2008 that the Finance Minister was not seeking to revisit the current regimes for entry fee or for revenue share and for the regime for allocation of spectrum, however, it was urged that the following aspects had to be studied:
“(i) The rules governing the allocation of additional spectrum and the charges thereof, including the charges to be levied for existing operators who have more than their entitled spectrum.
(ii) Rules governing trade in spectrum. In particular, how can Government get a share of the premium in the trade?
(iii) The estimate of the additional spectrum that may be available for allocation after taking into account:
(a) the entitlement of entry spectrum of fresh licenses;
(b) the spectrum that needs to be withdrawn from existing operators who do not have the subscriber base corresponding to the spectrum allotted to them; and
(c) the spectrum that may be released by Defence.
(iv) We also need to check the current rules and regulations governing withdrawal of spectrum in the event of:
(a) not rolling over;
(b) merger and acquisition;
(c) trading away spectrum.”
Salient points discussed in the meeting held on 30.1.2008 are given below:
“2. Spectrum Usage Charges for Initial allotment of spectrum of 4.4 MHz.
2.1 Secretary (Finance) was of the opinion that auctioning is legally possible for initial allotment of spectrum of 4.4 MHz. Secretary (DoT) explained that auction of spectrum of 4.4 MHz though may be legally possible but it would not be practical proposition to auction or fixing a price for 4.4 MHz spectrum due to following:
2.1.1 As per clause 43.5 (i) of UAS License, which provides that:
“initially a cumulative maximum of up to 4.4 MHz +4.4 MHz shall be allocated in the case of GSM based systems….”
It implies that when a service provider signs UAS License he understands that and contractually he is eligible for initially a cumulative maximum of 4.4 MHz subject to availability.
2.1.2 120 LoIs have been issued and the Department is contractually obliged to give them start up spectrum of 4.4. MHz under UASL.
2.1.3 As auctioning does not assure the operators to get initial spectrum of 4.4 MHz as per UAS License provision, auctioning and the clause 43.5 (i) of the UASL are contradictory.
2.1.4 If the new entrants get spectrum by auctioning, they may be paying more as compared to the existing players. Hence (a) auction will not ensure level playing; (b) also, asthe cost to the new entrants would be more, they may not be able to offer competitive tariff.
2.1.5 Also 4.4. MHz is a part of the license agreement; no spectrum acquisition charge is proposed to be levied. Even if it is priced, it will also disturb the level playing field and the present LOI holders, who have already paid entry fee, are likely to go for litigation. Initial entry fee for license may be construed as the defector price of initial spectrum i.e. Rs.1650 crore approximately for pan-India license.”
Para 3 of the Approach Letter deals with the spectrum usage charges for additional spectrum of 1.8 MHz beyond 4.4. MHz. The relevant portion of para 3 is extracted below:
“3. Spectrum Usage Charges for additiona l spectrum o f 1.8 MHz beyond 4.4 MHz The issue of levying price for additional spectrum of 1.8 MHz beyond 4.4 MHz including auctioning was also discussed. Secretary (Finance) desired to know whether this additional spectrum can be priced / auctioned and if not then why.
3.1 The issue of levying price for additional spectrum of 1.8 MHz would not be practical due to following:
3.1.1 As per clause 43.5(ii) of UAS License which provided that “Additional spectrum beyond the 4.4 MHz may also be considered for allocation after ensuring optimal and efficient utilization of the already allocated spectrum taking into account of all types of traffic andguidelines / prescribed from time to time. However 6.2 + 6.2 MHz in respect of TDMA (GSM) based system shall be allocated to any new Unified Access Services Licensee”.
3.1.2 It implies that an operator is eligible for consideration of additional 1.8 MHz spectrum (making total of 6.2 MHz) after ensuring optimal and efficient utilization of the already allocated spectrum taking into account all types of traffic and guidelines / criteria prescribed from time to time.
3.1.3 The matter was internally discussed with Solicitor General, who opined that he is defending the Government cases in various courts, where one of the main contentions is that auction would lead to reduction of competition and will not help in reducing the tariff and hence it would be against increase of teledensity and affordability. These being public interest concerns, it would be difficult to change the track at this juncture.
3.1.4 It is, however, proposed to price the spectrum of 1.8 MHz beyond 4.4 MHz upto 6.2 MHz. The TRAI in its report of August 2007 has recommended that any licensee who seeks to get additional spectrum beyond 10 MHz in the existing 2G bands, i.e. 800, 900 and 1800 MHz after reaching the specified subscriber numbers shall have to pay a onetime spectrum charge at the below mentioned rates on pro-rata basis for allotment of each MHz or part thereof of spectrum beyond 10 MHz…….”
Para 4 of the Approach Paper deals with the price of spectrum beyond 6.2 MHz. Relevant portion of para 4 reads as under:
“4. Price o f spectrum beyond 6.2 MHz The UASL does not explicitly provide any provision or spectrum beyond 6.2 MHz and upto 10 MHz, however the UASL clause 43.5(iv) provides that “the Licensor has right to modify and / or amend the procedure of allocation of spectrum including quantum of spectrum at any point of time without assigning any reason”. Hence the spectrum beyond 6.2 MHz should be properly priced keeping in mind the market value of spectrum.
4.1 Auction Path : Since we are not auctioning startup spectrum of 4.4 MHz and only pricing additional allocation of 1.8 MHz as explained earlier, therefore, we can take 6.2 MHz as threshold for consideration for auction as this also falls beyond the provisions of the license agreement. The following points are brought out:
· 2G GSM Spectrum bands are 890-915 MHz paired with 935-960 MHz, 1710- 1755 MHz paired with 1805-1890 MHz i.e., 2.5 MHz is available in 900 & 75 MHz band is available in 1900 MHz band making a total of 100 MHz. Out of this more than 37 MHz stand allocated to the GSM service providers in different service areas. Remaining 63 MHz, major portion of the spectrum in 1800 MHz band is being used by Defence.
· 120 LOIs have been issued and startup spectrum is to be allotted to them as well as for the growth; existing operators should be given 6.2 MHz, subject to availability.
· After this allotment, hardly any identifiable free spectrum will be available, which is a pre-requisite for auction.
· At any given time one or two operators will be eligible for beyond 6.2 MHz based on the subscribers linked criteria. Hence if an auction is to be held, competition would be limited.
· Hence auctioning may not be successful in providing optimum value due to (a) limited availability of spectrum & (b) limited competition. TRAI has also not recommended for auctioning of 2G spectrum in view of the following:
· Service providers were allocated spectrum at different times of their licenses and the amount of spectrum with them. Therefore, to decide the cut off after which spectrum is auctioned will be difficult and might raise issue of level playing field.
· Penetration of mobile service is to happen in semi urban and rural areas, where affordability of the services to the common man is the key for further expansion:
In view of all these factors, auction 2G spectrum at this juncture does not appears to be viable solution.”
4.2 Fix Price for spectrum beyond 6.2 MHzThe following two options were considered:
Option 1 For this purpose it may be desirable to index, the entry fee of Rs.1650 crores in the year 2003-04 (for initial 4.4 MHz) i.e. Rs.375 crore per MHz, for inflation, potential for growth of tele-density and revenue etc. appropriately. If we take an inflation of about 5% per year for 4 years upto 2007-08, which would mean about 20% compounded inflation till 2007. Therefore, additional charges can be levied at 20% of Rs.375 crores for one MHz of spectrum i.e. Rs.425 Crores. This option is not favoured in view of the low value of spectrum. Option 2 The service area wise AGR figures per MHz for the years 2003-04, and anticipated figure were calculated and is given at Annexure 1. It may be seen that there is an increase of about 3-5 times, if the figures of 2007-08 with 2003-04 is compared. It is for consideration to charge ‘x’ times of base price of Rs.375 crore/MHz, where ‘x’ is to be decided.This will be charged to existing as well as new entrants. Those who decide not to pay may be asked to surrender the excess spectrum beyond 6.2 MHz.”
Para 6 deals with the Merger and Acquisition (M&A) is also relevant and the same reads as under:
6. Mergers and Acquisition (M&A ) In the context of intra-circle merger and acquisition, TRAI in their report of August 2007 have considered various factors, namely Definition of Market Assessment of Market Power criteria and Methodology, Determination of minimum number of access service providers in a post merger scenario and spectrum cap of the merged entity. The TRAI Recommendations had been considered by Telecom Commission. Some of the issues have been referred back to TRAI for consultation. In view of very large number of new players, it is expected that consolidation is likely to take place in the industry in future.
6.1 In view of this, we need to have clear guidelines relating to M&A. We also need to consider fees on account of transfer of spectrum to the merged entity. In the event of M&A the transfer charge to the Government has not been considered by TRAI in their recommendation of August 2007. This is a complex issue requiring detailed deliberation and consultation. Therefore, the issue of quantum of fees which the Government would get on account of transfer of spectrum during M&A needs to be referred to TRAI. Based on the Recommendations of TRAI on the above issue, DoT will take appropriate decision with a specified time period and issueclear and transparent guidelines for M&A including transfer charges for spectrum.”
44. The Secretary, DoT then vide letter dated 8.2.2008, forwarded the Approach Paper with regard to the meeting held. Minister of Finance vide note dated 11.2.2008, acknowledged the note dated 8.2.2008 which was the summary of the four rounds of discussion they had and a Sequal note setting out the then existing position regarding telecom fees and charges and pricing of spectrum and the issues for decision were high-lighted. Paras 16 to 18 of the Sequal note read as under:
“Auction of Spectrum
16. Auctioning spectrum suggests itself is as a clear first choice. It has several merits.
(i) Best method of discovering price
(ii) Is more transparent and provides a level playing field
(iii) Promotes competition
17. However, it will be problematic for us to adopt the auction route at this late stage mainly for ‘historical legacy’ reasons. A number of operators have already been given spectrum free of charge. The spectrum available for auction, therefore, will be quite limited (DoT has not been able to indicate the precise quantum of spectrum that will be available for allotment). Efficient price discovery becomes possible only if the supply is large and there are a number ofpotential buyers: a thin market has clear limitation in signalling a price. It may turn out that the ‘discovered price’ is either too low or too high. In its August 2007 report (para 2.79), TRAI too advised against auctioning of spectrum on the ground that it will trigger issues of level playing field.
18. Auction will be viable if we can increase the quantum of spectrum available. This can be done by withdrawing the spectrum already allotted to existing operators and putting all of it on auction. Both existing and new license will then bid on a clean slate. This is evidently an extreme measure, and has significant practical and legal implications.”
On the subject of market based price determination, the MoF in paras 19 & 20 stated as follows:
“Market Based Price Determination
19. If auction is ruled out, what are the alternatives for determining an appropriate market based price for spectrum?
20. The value of spectrum embedded in the entry fee provides a possible reference frame for pricing spectrum. Currently, 4.4MHz of spectrum is allotted at the entry level on payment of an entry fee of Rs. 1650 crores for pan-India operation. This translates to an embedded price of Rs.375 crores/MHz. This price was discovered in 2001 and fixed in 2003/04. Using this reference frame price, there are two options for determining the current price of spectrum.On the question of pricing of spectrum beyond 4.4 MHz, the views expressed by the Ministry of Finance in the above letter read as follows:
28. DoT is of the view that it is not advisable / possible to price the start-up allocation of a 4.4 MHz on the following argument. Allocation of 4.4 MHz spectrum is part of the licence Agreement. This start-up spectrum was given free of cost in the past. The new entrants who were given licenses in January 2008 paid the entry fee on the understanding that they would get this start-up spectrum would be a breach of this understanding. It will also disturb the level playing field between the existing operators and the new licencees. This may also trigger litigation.
29. DoT is agreeable to pricing of spectrum beyond 4.4MHz. However, they have suggested a differentiated pricing regime. According to them, there should one price of spectrum between 4.4 MHz and 6.2 MHz (1.8 MHz), and another price for spectrum beyond 6.2 MHz. In August 2007, TRAI recommended a price for licensees who seek spectrum beyond 10 MHz. DoT wants to apply this price for spectrum between 4.4 MHz and 6.2 MHz for spectrum beyond 6.2 MHz, DoT is agreeable to using the price determined as at paragraph 22 above.
30. Ministry of Finance differs from the above position of DoT. There is no contractual obligation to allot a start-up spectrum of 4.4 MHz to every licensee free of cost. The entire range of the spectrum allotted should be priced. The issue of level playing field can be addressed by charging this price even on existing operators.
31. Moreover, the differentiated pricing suggested by DoT, viz. One price for spectrum between 4.4and 6.2 MHz and a different price for spectrum beyond 6.2 MHz will be clumsy, non-transparent and legally questionable. It will be neat and transparent to fix a single circle-specific price for spectrum across the entire bandwidth. On Merger and Acquisition (M&A), the views expressed by the Finance Minister read as follows:
“32. It is likely that the market will see considerable M&A activity over the next few years. It should be Government’s endeavour to ensure that this consolidation happens in an efficient and healthy manner. One question that arises is whether the Government should get a premium out of an M&A transaction. Since spectrum has not been auctioned but priced juristically, it is likely that the rent, if any, involved in the price of spectrum will form part of the M&A transaction which would typically involve a host of other assets and liabilities, is a complex task. TRAI is best positioned to think through and advise on this issue. The ToRs to TRAI in the regard should be:
(i) What should be guidelines for M&As between UASL operators?
(ii) Should Government get a premium out of M&A activity? And
(iii) if yes, how can this premium be determined?
45. Ministry of Finance (Department of Economic Affairs) also prepared a note on 7.4.2008 after discussing the matter with the Minister of Finance, which shows that the Minister of Finance had also agreed that spectrum usagecharges should be increased reflecting the scarcity value of spectrum as indicated in Ministry’s note dated 11.2.2008. On pricing of spectrum, the Ministry of Finance was of the view that they might insist in principle on pricing spectrum (beyond 4.4. MHz) although details could be worked out after the auction of 3G’s spectrum.
46. Mr. Govind Mohan, Director, Ministry of Finance had prepared a detailed office memorandum on 8.4.2008, wherein after referring to the DoT letter dated 29.1.2008, the following amendments were suggested:
“4.0 Union Cabinet, in its meeting on October 31, 2003 had, inter alia, decided that spectrum pricing would need to be decided mutually between DoT and MoF so as to provide incentive for efficient use of spectrum as well as disincentive for sub-optimal usage. In the context of this decision, the following amendments are being suggested in Pricing of Spectrum, its allotment among Access providers and Spectrum Usage Charges:
1. Any Allotments of Spectrum to access subscriber licensees under UASL regime may henceforth be specifically priced and charged for. The charge may be determined, circle wise, by adopting the Entry Fee, fixed for that circle in 2003-04, and thereafter inflating it by the multiplier, which represents the growth in aggregate AGR per MHz between 2003-04 and 2007-08; hence, for a Pan India operator, the Circle fee fixed in 2003-04 (Rs.375 crore per MHz) would be inflated by a multiple of 3.5 (which represents the growth in AGR/MHz between 2003-04 and 2007-08) to yield the new spectrum price of Rs.1,312 Crore per MHz (approximately);
2. The price determined as above may be made applicable to both the new and existing operators; moreover, the entire range of spectrum allotted may be charged, for both new and existing operators; such operators who do not intend to pay the new charges may be given the option of surrendering the Spectrum allotted to them;....................”
47. Letter, it is seen, was issued with the approval of the Minister of Finance.
48. Noticing some mistakes in that office memorandum, an amended office memorandum was issued by Mr. Govind Mohan, on the same date. The reason is obvious, because the Finance Secretary D. Subbaroa, had made a note on 7.4.2008 stating that the FM’s view was that the Ministry must insist in principle on pricing of Spectrum (beyond 4.4.MHz), although details could be worked out after the auction of 3G Spectrum. Evidentially it was a bona fide mistake committed by Dr. Govind Mohan, because theoriginal Memo dated 8.4.2008 was contrary to the note prepared by the Finance Secretary, and hence he had to issue a corrected OM the operative portion of the same reads as follows:
‘4.Union Cabinet in its meeting on October 31, 2003, inter alia, decided that spectrum pricing would need to be decided mutually between DoT and MoF so as to provide incentive for efficient use of spectrum as well as disincentive for suboptimal usage. In the context of this decision, the issues that need to be decided in respect of 2G spectrum were discussed by Finance Secretary in three rounds of meetings with Secretary (Telecom) in February, 2008. Accordingly, the following amendments are being suggested in Pricing of Spectrum, its allotment among Access providers and Spectrum Usage Charges:
1. Any allotments of spectrum to access subscriber licensees under UASL regime – beyond the initial “start-up” allocation of 4.4 MHz – may henceforth be specifically priced and charged for. Details in this regard can be worked out;
2. The price determined as above may be made applicable to both the new and existing operators; such operators who do not intend to pay the new charges may be given the option of surrendering the spectrum allotted to them;
3. Spectrum Usage Charge, instead of being charged as a fixed percentage of Adjusted Gross Revenue (AGR) for different spectrum bands, may henceforth be charged as a percentage of AGR based on volume of business categorization, so as to betterreflect and capture the circle specific scarcity value of spectrum. The revised charges proposed for various Circles are as per the table annexed to this OM and as agreed in the discussions between Finance Secretary and Secretary, Department of Telecom;
4. The recommendations of TRAI for revising the subscriber base criteria for allotment of spectrum may be considered for implementation in the interest of enhancing efficiency of spectrum usage and encouraging technological innovations.
49. Shri P. Chidambaram, wrote a letter dated 21.4.2008 to Shri A. Raja, forwarding a non-paper containing Finance Minister’s views on issues relating to 2G Spectrum and issues relating to 3G (Wi Max Spectrum). After discussions, it was pointed out that the conclusion be presented to the Prime Minister.
50. The Finance Secretary, as instructed by the Finance Minister, met the Secretary DoT on 24th April, 2008 and a hand written note was prepared by the Finance Secretary on 29.4.2008 on all outstanding issues. The recommendations of the MoF were as follows:
“Pricing of Spectrum
3. We may recommend the following principles for pricing of spectrum:
(i) The start-up spectrum of 4.4 MHz for GSM (2.5 MHz for CDMA may be exempted from upfront pricing both for new and existing operators.
(ii) Under the UASL Licensing regime, there appears to be an implicit, indirect contractual obligation to allow further allotment of spectrum, beyond 4.4 MHz for GSM (2.5 MHz for CDMA), and upto 6.2 MHz for GSM (5MHz for CDMA) after payment of 1% additional spectrum usage charges and ensuring that already allocated spectrum has been optimally and efficiently utilized. This may effectively protect operators who have existing allocations upto 6.2 MHz for GSM (5MHz for CDMA ) from payment o f any other charges , including the “ up front ” spectrum price . Since it may not be possible to charge operators already having allocations upto this range , the principle o f equity and “ leve l playing field ” would require that the operators, who get fresh allotment o f spectrum upto 6.2 MHz for GSM ( 5MHz for CDMA ) too should not be charged for spectrum upto 6.2 MHz for GSM ( 5 MHz for CDMA).
(iii) Spectrum beyond 6.2 MHz in case of GSM (5MHz in case of CDMA) should be priced. This is defensible on the following grounds. First, as per the terms of the UAS license, there is no contractual obligation on the part of the Government to necessarily allot spectrum beyond 6.2 MHz (beyond 5MHz in case of CDMA); and, secondly, Government retains thesovereign right to modify the terms of license as also the procedure for allocation of spectrum, including quantum of spectrum, at any point of the time without assigning any reason.”
Issues relating to merger and acquisition have been dealt with in Paras 16 to 18 and the same read as follows:
“Issues relating to Mergers and Acquisitions
16. DoT have issued a notification on April 22, 2007 on “Guidelines for intra service merger of Cellular Mobile Telephone Service (CMTS)/Unified Access Services (UAS) Licensees”.
17. The guidelines derive substantially from the recommendations made by TRAI on this subject vide Report of August, 2007. The guidelines mandate a “spectrum transfer charges” to be payable as specified by Government.
18. DoT may be advised that fixation of “spectrum transfer charges” shall be in consultation with DEA.”
51. Shri P. Chidambaram and Shri A. Raja met on 29.5.2008 and 12.6.2008 for resolving the then outstanding issues relating to the allocation and pricing 2G and 3G Spectrums. Meeting of two Ministers would not by itself be sufficient to infer the existence of a conspiracy. Even before those meetings, as instructed by the Finance Minister, theFinance Secretary and Telecom Secretary had already met on 24.4.2008, had agreed that it might not be possible to charge operators already having allocation upto 6.2 MHz and the principle of equity and level playing field would require that the operators who get fresh allotment of Spectrum upto 6.2MHz for GSM too should not be charged for Spectrum upto 6.2 MHz for GSM. Therefore, the allegation that Shri P. Chidambaram had over-ruled his officers’ views and had conspired with Shri A. Raja is without any basis.
52. Criminal conspiracy cannot be inferred on the mere fact that there were official discussions between the officers of the MoF and that of DoT and between two Ministers, which are all recorded. Suspicion, however, strong, cannot take the place of legal proof and the meeting between Shri P. Chidambaram and Shri A. Raja would not by itself be sufficient to infer the existence of a criminal conspiracy so as to indict Shri P. Chidambaram. Petitioners submit that had the Minister of Finance and the Prime Minister intervened, this situation could have been avoided, might beor might not be. A wrong judgment or an inaccurate or incorrect approach or poor management by itself, even after due deliberations between Ministers or even with Prime Minister, by itself cannot be said to be a product of criminal conspiracy.
53. We are of the considered view that materials on record do not show that Shri P. Chidambaram had abused his position as a Minister of Finance or conspired or colluded with A. Raja so as to fix low entry fee by non-visiting spectrum charges fixed in the year 2001. No materials are also made available even for a prima facie conclusion that Shri P. Chidambaram had deliberately allowed dilution of equity of the two companies, i.e. Swan and Unitech. No materials is also available even prima facie to conclude that Shri P. Chidambaram had abused his official position, or used any corrupt or illegal means for obtaining any pecuniary advantage for himself or any other persons, including Shri A. Raja.
54. We are, therefore, of the considered opinion that no case is made out to interfere with the order dated 4.2.2012in C.C. No. 01 (A) / 11 passed by Special Judge CBI (04) (2G Spectrum Cases), New Delhi or to grant reliefs prayed for in I.A. No. 34 of 2012. Special Leave Petition (Crl.) No. 1688 of 2012 is, therefore, not entertained, so also I.A. No. 34 of 2012 in Civil Appeal No.10660 of 2010 and they are accordingly stand rejected.
posted Jun 5, 2012, 11:50 PM by Law Kerala [ updated Sep 17, 2012, 1:43 AM ]
(2012) 4 SCC 776 : 2012 (3) SCALE 354
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
R.M. LODHA AND H.L. GOKHALE, JJ.
FEBRUARY 28, 2012
SPECIAL LEAVE PETITOIN (CRL.) NO. 2874 OF 2008
SPECIAL LEAVE PETITOIN (CRL.) NO. 3354 OF 2008
ANIL KUMAR ....PETITIONER
STATE OF U.P. ....RESPONDENT
Indian Penal Code, 1860 - Sections 147, 148, 302 read with Section 149 - When the injuries caused were cumulatively sufficient to cause death, it was necessary for the Court before holding each of the accused guilty under Section 302 read with Section 149 IPC to find that the common object of the unlawful assembly was to cause death or that the members of the unlawful assembly knew it to be likely that an offence under Section 302 IPC would be committed in furtherance of the common object.
J U D G M E N T
R.M. LODHA, J.
Five persons namely; Surendra, Narendra, Yogesh all s/o Anoop Singh, Amar Pal s/o Jagpal Singh and Anil Kumar s/o Roopchand Tyagi were tried for the murder of Ramchandra Singh under Sections 147,148,302 read with Section 149 of the Indian Penal Code, 1860 (IPC).
2 The incident occurred on May 19, 1980 at 1.30 p.m. According to the prosecution case, Ramchandra Singh (deceased) who was on his way on that day to Siana in a buffalo cart with a cement permit and some money was waylaid by the accused persons; Surendra andNarendra were armed with burri and knife respectively and other three were having lathis with them. There was a criminal litigation pending between the deceased Ramchandra Singh and the accused Surendra, Narendra and Yogesh. These three accused are real brothers. Accused Anil Kumar happens to be their brother-in-law. Surendra, at the time of incident, exhorted the other accused to kill Ramchandra Singh. In the incident, Ramchandra Singh sustained 21 injuries. He died on the next day.
3. On conclusion of the trial, the IVth Additional Sessions Judge, Bulandshahar convicted the accused for the offence punishable under Section 302 read with Section 149 IPC. Accused Surendra and Narendra were convicted under Section 148 IPC additionally while accused Yogesh, Amar Pal and Anil Kumar were convicted under Section 147 IPC in addition to the offence under Section 302 read with Section 149 IPC. All of them were sentenced to suffer life imprisonment for commission of offence punishable under Section 302 read with Section 149 IPC. Accused Surendra and Narendra were sentenced to rigorous imprisonment for two years for the offence punishable under Section 148 IPC while accused Yogesh, Amar Pal and Anil Kumar were sentencedto rigorous imprisonment for one year for the offence punishable under Section 147 IPC.
4. Aggrieved by their conviction and sentence, the four convicts namely; Surendra, Narendra, Yogesh and Amar Pal filed one appeal while the fifth convict Anil Kumar filed a separate appeal before the High Court. Both the appeals were heard together. The Division Bench of the Allahabad High Court, vide its judgment dated November 14, 2007, dismissed both the appeals.
5. Special Leave Petition (Crl.) No. 2874 of 2008 is at the instance of accused Surendra, Narendra and Yogesh. The other Special Leave Petition (Crl.) No. 3354 of 2008 is at the instance of accused Anil Kumar.
6. This Court on October 3, 2008, in both the matters, issued notice limited to the nature of offence. The controversy is confined to this aspect only.
7. Mr. Nagendra Rai, learned senior counsel for the petitioners in S.L.P. (Crl.) No. 2874 of 2008 submitted that the injuries sustained by the Ramchandra Singh which cumulatively resulted in his death leave no manner of doubt that the accused persons did not act in prosecution of the common object to commit the murder of Ramchandra Singh. Had the intention been tocommit the murder of Ramchandra Singh, learned senior counsel submitted, accused Surendra would not have used burri as lathi and the other accused would not have caused injuries on the non-vital parts of the deceased Ramchandra Singh. In support of his contentions, Mr. Nagendra Rai, learned senior counsel heavily relied upon the decision of this Court in Sarwan Singh and others vs. State of Punjab, (1978) 4 SCC 111 and Kusum Chandrakant Khaushe vs. Hmlingliana and others, AIR 1993 SC 401.
8. Mr. P.H. Parekh, learned senior counsel appearing for the petitioner Anil Kumar in S.L.P. (Crl.) No. 3354 of 2008 adopted the arguments of Mr. Nagendra Rai, learned senior counsel. He further submitted that accused Anil Kumar was not the resident of the village where the incident occurred and there was no enmity between him and the deceased Ramchandra Singh. Accused Anil Kumar had come to the village to take his wife and merely because he was armed with a lathi, it can not be said that he acted in furtherance of the common object with other accused to kill the victim Ramchandra Singh.
9. Mr. Subodh Markandeya, learned senior counsel for the State of U.P. highlighted the injuries sustained by the deceased and the consideration of the matter by the High Court with regard to the nature of offence.
10. Dr. Inder Sen (PW4) was the doctor who attended to the deceased Ramchandra Singh immediately after the incident when he was brought to the Primary Health Cente, Siana. He has proved the injury report (Ex. Ka- 2). The following injuries were found on the person of the deceased:
“1. Bruise 7 cm x 4 cm on the top of right shoulder.
2. Multiple bruises over lapping each other in an area 10cm x 11cm on the upper 3rd of right upper arm in front outer aspect.
3. Peeling of skin in its entire thickness 5 cm x 3 cm on the back of right forearm, 6 cm below the elbow.
4. Bruise 5 cm x 2 cm on the inner back aspect of the middle of right forearm.
5. Abrasion 7 cm x 1 ½ cm on the inner aspect of right forearm, 3cm above the wrist.
6. Incised wound 1 cm x 1/5 cm x ½ cm on front aspect of right forearm, just above the wrist, with clean cut margins and fresh bleeding.
7. 2 abrasions ½ cm x 1cm on the back aspect of the middle right of the middle ring finger of right hand.
8. Swelling with tenderness 6cm x 5cm on the inner side of right hand to the top of thumb and above the index finger. Fracture suspected.
9. Swelling on first digit of right little finger.
10. Bruise 6 cm x 3 cm on the outer aspect of left upper arm 6 cm below the shoulder.
11. Multiple deep bruises 12cm x 8cm with the peeling of skin in an area 4 cm x 4 cm on the middle of left upper arm front and outer aspect.
12. Bruise below the nail of left thumb withblood oozing from nail band.
13. Bruise 16 cm x 2 cm on the right side of back oblique from axilla to lower angle of shoulder wing.
14. Bruise 8 cm x 3 ½ cm on outer aspect of back along 10 to 12th rib right side.
15. Bruise 20 cm x 3 cm in horizontal plane on left side of back just above renal angle.
16. Multiple bruise over lapping 12 cm x 10 cm on the outer of right thigh above the knee.
17. Abrasion 2 cm x 1 cm below the left knee.
18. Abrasion 3 cm x 1 cm in front of right leg 11 cm below the knee.
19. Lacerated wound 2 cm x ½ cm x 1 cm on the front of right leg 11 cm above ankle.
20. Bruise 8 cm x 2 cm on the front of the left thigh, 6 cm below the groin.
21. Bruise 10 cm x 2 cm on the lower and of left thigh above the knee.”
Dr. Inder Sen (PW4) further stated that the injury Nos. 1,2,4,8,9 to 16, 19 & 20 were caused by blunt object; injury No. 6 was from a sharp weapon and rest were by friction.
11. The post-mortem of the dead body was conducted by Dr. P.C. Agarwal (PW5). He had noted as follows:
“A stitched wound 1 ½ long on the right forearm, incised wound on the medial aspect of right wrist, abraded contusion 1/4” x 1/4” on the dorsal aspect of right middle and ring fingers, contusion 12” x 4” on the outer aspect of right arm and top of shoulder, contusion 2 1/2” x 2” on the right back in the lower 3rd, 3 contusions 1/2” x 1/4”, 3/4” x 1/4”, 1 ½ “ x ½ “ on the right knee and the 3rd of front of right leg, stitched wound 3/4” on the upper lower third of front of right leg, abraded contusion 1” x 3/4” on the middle of left leg, abraded contusion 1 ½ “ x 1/2” on the front side of the left arm, abraded contusion 2” x 1 3/4” on the outer aspect of left arm, contusion 6” x 2” on the front and left side of chest, contusion 3” x 1 1/2” on theleft upper thigh and contusion 3 1/2” x 1 1/2” on the outer aspect of left middle leg.”
12. In Sarwan Singh, this Court observed that when the injuries caused were cumulatively sufficient to cause death, it was necessary for the Court before holding each of the accused guilty under Section 302 read with Section 149 IPC to find that the common object of the unlawful assembly was to cause death or that the members of the unlawful assembly knew it to be likely that an offence under Section 302 IPC would be committed in furtherance of the common object. The Court then examined the above question in light of the injuries sustained by the deceased. In paragraph 8 of the report, the injuries have been noticed. The Court then noticed the circumstances of the case particularly that an unexpected quarrel took place between the members of the same family over a dispute as to water rights. Consequently, the Court held that the common object of the assembly was not to cause bodily injury sufficient in the ordinary course of nature to cause death. The Court held that the common object of the assembly, in the circumstances, could only be said to cause injuries which were likely to cause death. In Sarwan Singh, accordingly, it was held that the offence would be under Section 304 Part-I IPC.
13. Sarwan Singh, has no application to the facts of the present case for more than one reason. In the first place, the motive for the crime in the present case has been established. There was criminal litigation pending between the deceased Ramchandra Singh and the accused Surendra, Narendra and Yogesh. The other accused Anil Kumar is the bother-in-law of these three accused. The enmity between the deceased and the accused party stands proved. Secondly, all the five accused were armed with deadly weapons. Accused Surendra and Narendra were armed with burri and knife respectively and other three accused were armed with lathis. Accused Surendra, at the time of incident, exhorted the other accused, “Kill him. He is the bone of contention”. The attack by the accused party on the victim has been established to be pre-planned and premeditated. Thirdly; the evidence of Dr. P.C. Agarwal (PW5) who conducted the autopsy on the body of the deceased would show that the deceased had fractured ribs – left 9th, 10th and right 10th and both the lungs of the deceased were lacerated and were found ruptured. The legal position is well established that inference of common object has to be drawn from various factorssuch as the weapons with which the members were armed, their movements, the acts of violence committed by them and the result. We are satisfied that the prosecution, from the entirety of the evidence, has been able to establish that all the members of the unlawful assembly acted in furtherance of the common object to cause the death of Ramchandra Singh.
14. In, what we have indicated above, the decision of this Court in the case of Kusum Chandrakant Khaushe, also has no application to the facts of the present case.
15. The case of the accused Anil Kumar is not at all distinct from the case of the other accused as has been sought to be canvassed by Mr. P.H. Parekh, learned senior counsel.
16. The High Court, while dealing with the question of nature of offence, observed:
“The last point argued by learned counsel for the appellants was that this was not the case under Section 302 IPC but circumstances and nature of injuries show that this was a case under Section 304 Part-I of Indian Penal Code. But we see no force in this contention because there was enmity between the parties and the attack was well planned. This was not a case of sudden provocation. The injury report Ex. Ka-2 shows that deceased was brutally and badly assaulted by the accused persons and cumulative effect of injuries was the cause of death.”
17. We find no error in consideration of the matter by the High Court.
18. Special Leave Petitions are, accordingly, dismissed.
S.L.P. (Crl.) No. 335 of 2012 - Ram Dhan Vs. State of U.P., 2012 (2) KLT SN 88 (C.No. 82) : (2012) 5 SCC 536 : 2012 (4) SCALE 259posted Apr 12, 2012, 9:53 PM by Kesav Das [ updated Jun 30, 2012, 8:44 AM by Law Kerala ]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
DR. B.S. CHAUHAN AND JAGDISH SINGH KHEHAR, JJ.
April 10, 2012
SPECIAL LEAVE PETITION (CRL.) NO.335 OF 2012
Code of Criminal Procedure, 1973 - Sections 195, 239 and 340 - Indian Penal Code, 1860 - Sections 177, 181, 182, 195 and 420 - Quashing of the chargesheet.
Facts of the Case:-
Petitioner lodged an FIR alleging that his son Dinesh had disappeared and, subsequently, filed a complaint against respondents. Trial Court convicted the respondents and awarded sentence of 9 years rigorous imprisonment and imposed a fine of Rs.5,000/-. Respondents preferred an appeal before the High Court which was admitted and granted bail. The petitioner’s son for whose kidnapping respondents had been convicted, came back home and disclosed to the public as well as to the police that he had not been kidnapped rather had voluntarily gone to Punjab, where he worked for several years. Respondents realised that they had been wrongly enroped and convicted in the offence by the petitioner. Thus, they filed an FIR under Sections 177, 181, 182, 195 and 420 IPC. After investigating the case, chargesheet was filed against the petitioner and others under Sections 177, 181, 182 and 195 IPC. The petitioner filed an application under Section 239 Cr.P.C. before the Chief Judicial Magistrate contending that that the prosecution of the petitioner is illegal and liable to be quashed in view of the provisions of Sections 195 and 340 Cr.P.C, for the reason that as the offence has been committed in the court, such a drastic action can be taken against the petitioner only on a complaint lodged by the court and not by the convict. The Chief Judicial Magistrate rejected the said application and the petitioner challenged the said order by filing a criminal revision before the High Court which has been dismissed. Hence, this petition.
Dismissing the Petition the Court Held:-
The petitioner has suppressed the material fact and has not disclosed anywhere in this petition that he had approached the High Court for quashing of the chargesheet, which stood rejected and the said order attained finality as has not been challenged any further. Thus, he is guilty of suppressing the material fact which makes the petition liable to be dismissed only on this sole ground.
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. This petition has been filed against the judgment and order dated 14.11.2011 passed by the High Court of Judicature at Allahabad in Criminal Revision No.4259 of 2011 by which the High Court has rejected the said revision petition against the impugned order dated 3.9.2011 passed by the Chief Judicial Magistrate, Bagpat, rejecting the application under Section 239 of the Code of Criminal Procedure, 1973 (hereinafter called `Cr.P.C.’).
2. Facts and circumstances giving rise to this petition are that present petitioner Ram Dhan lodged an FIR dated 4.6.1995 alleging that his son Dinesh had disappeared and, subsequently, filed a complaint against Balraj alias Billu and others (respondents) under Section 364 of the Indian Penal Code, 1860 (hereinafter called IPC). The investigating agency concluded the investigation and filed a chargesheet on the basis of which trial commenced against the respondents Balraj etc. and the trial Court vide judgment and order dated 11.5.2005 convicted the respondent No.2 Balraj and others for the offences punishable under Section 364 read with Section 149 IPC and awarded sentence of 9 years rigorous imprisonment and imposed a fine of Rs.5,000/-.
3. Being aggrieved, Balraj, respondent No.2 and others preferred an appeal before the High Court of Allahabad which was admitted and the respondent No.2 and other convicts were granted bail by the High Court. The petitioner’s son for whose kidnapping Balraj, respondent No.2 and others had been convicted, came back home and disclosed to the public as well as to the police that he had not been kidnapped rather had voluntarily gone to Punjab, where he worked for several years. Balraj, respondent No.2 realised that he had been wrongly enroped and convicted in the offence by the petitioner. Thus, he filed an FIR on 29.8.2009 under Sections 177, 181, 182, 195 and 420 IPC. After investigating the case, chargesheet was filed against the petitioner and others under Sections 177, 181, 182 and 195 IPC on 23.11.2009.
4. The petitioner filed an application under Section 239 Cr.P.C. before the Chief Judicial Magistrate contending that the FIR at the behest of the respondent No.2, Balraj was not maintainable in view of the provisions of Section 195 read with Section 340 Cr.P.C. The Chief Judicial Magistrate rejected the said application vide order dated 3.9.2011. The petitioner challenged the said order dated 3.9.2011 by filing a criminal revision before the High Court which has been dismissed vide impugned order dated 14.11.2011. Hence, this petition.
5. Shri Ashok Kumar Sharma, learned counsel appearing for the petitioner, has vehemently contended that the prosecution of the petitioner is illegal and liable to be quashed in view of the provisions of Sections 195 and 340 Cr.P.C, for the reason that as the offence has been committed in the court, such a drastic action can be taken against the petitioner only on a complaint lodged by the court and not by the convict/respondent No.2.
6. We find no merit in the petition. After investigation, chargesheet has been filed against the petitioner and others under Sections 177, 181, 182 and 195 IPC. The petitioner has suppressed the material fact and has not disclosed anywhere in this petition that he had approached the High Court under Section 482 Cr.P.C. for quashing of the chargesheet, which stood rejected vide order dated 3.2.2010 and the said order attained finality as has not been challenged any further. Thus, he is guilty of suppressing the material fact which makes the petition liable to be dismissed only on this sole ground. We are of the view that it was necessary for the petitioner to disclose such a relevant fact. The learned Chief Judicial Magistrate while deciding the application under Section 239 Cr.P.C. has made reference to the said order of the High Court dated 3.2.2010. We had been deprived of the opportunity to scrutinise the chargesheet as well as the order of the High Court dated 3.2.2010 and to ascertain as to whether the grievance of the petitioner in respect of the application of the provisions of Section 195 read with Section 340 Cr.P.C. had been raised in that petition and as to whether even if such plea has not been taken whether the petitioner can be permitted to raise such plea subsequently.
7. In such a fact-situation, the courts below may be right to the extent that question of discharge under Section 239 Cr.P.C. was totally unwarranted in view of the order passed by the High Court on 3.2.2010. For the reasons best known to the petitioner, neither the copy of the chargesheet nor of the order dated 3.2.2010 passed by the High Court have been placed on record.
8. Be that as it may, the chargesheet has been filed under Sections 177, 181, 182, 195 and 420 IPC. Section 177 IPC deals with an offence furnishing false information. Section 181 IPC deals with false statement on oath. Section 182 IPC deals with false information with intent to cause public servant to use his lawful power to the injury of another person. Section 195 IPC deals with giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment.
9. At least the provisions of Sections 177 and 182 deal with the cases totally outside the court. Therefore, the question of attracting the provisions of Sections 195 and 340 Cr.P.C. are not attracted. Section 195 IPC makes fabrication of false evidence punishable. It is not necessary that fabrication of false evidence takes place only inside the court as it can also be fabricated outside the court though has been used in the court. Therefore, it may also not attract the provisions of Section 195 Cr.P.C. (See: Sachida Nand Singh & Anr. v. State of Bihar & Anr. , (1998) 2 SCC 493).
10. Mr. Ashok Kumar Sharma, learned counsel appearing for the petitioner, has placed a very heavy reliance on the judgment of this Court in Abdul Rehman & Ors. v. K.M. Anees-ul-Haq, JT (2011) 13 SC 271. However, it is evident from the judgment relied upon that the judgment in Sachida Nand Singh (Supra), which is of a larger Bench, has not been brought to the notice of the court. (See also: Balasubramaniam v. State & Anr., (2002) 7 SCC 649). The petitioner is guilty of suppressing the material fact. Admittedly, filing of successive petition before the court amounts to abuse of the process of the court. Thus, we are not inclined to examine the issue any further. Considering the composite nature of the offences, we do not see any cogent reason to interfere with the impugned order. The petition lacks merit and is, accordingly, dismissed.
S.L.P. (Crl.) No. 3916 of 2010 - V.D. Bhanot Vs. Savita Bhanot, 2012 (1) KLT 637 : 2012 (1) KLJ 723 : 2012 (1) KHC 610posted Feb 14, 2012, 11:09 PM by Kesav Das [ updated Sep 24, 2012, 9:06 PM by Law Kerala ]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
ALTAMAS KABIR AND J. CHELAMESWAR, JJ.
SPECIAL LEAVE PETITION (Crl.) NO. 3916 OF 2010
O R D E R
ALTAMAS KABIR, J.
1. The Special Leave Petition is directed against the judgment and order dated 22nd March, 2010, passed by the Delhi High Court in Cr.M.C.No.3959 of 2009 filed by the Respondent wife, Mrs. Savita Bhanot, questioning the order passed by the learned Additional Sessions Judge on 18th September, 2009, dismissing the appeal filed by her against the order of the Metropolitan Magistrate dated 11th May, 2009.
2. There is no dispute that marriage between the parties was solemnized on 23rd August, 1980 and till 4th July, 2005, they lived together. Thereafter, for whatever reason, there were misunderstandings between the parties, as a result whereof, on 29th November, 2006, the Respondent filed a petition before the Magistrate under Section 12 of the Protection of Women from Domestic Violence Act, 2005, hereinafter referred to as the “PWD Act”, seeking various reliefs. By his order dated 8th December, 2006, the learned Magistrate granted interim relief to the Respondent and directed the Petitioner to pay her a sum of Rs.6,000/- per month. By a subsequent order dated 17th February, 2007, the Magistrate passed a protection/residence order under Sections 18 and 19 of the above Act,protecting the right of the Respondent wife to reside in her matrimonial home in Mathura. The said order was challenged before the Delhi High Court, but such challenge was rejected.
3. In the meantime, the Petitioner, who was a member of the Armed Forces, retired from service on 6th December, 2007, and on 26th February, 2008, he filed an application for the Respondent’s eviction from the Government accommodation in Mathura Cantonment. The learned Magistrate directed the Petitioner herein to find an alternative accommodation for the Respondent who had in the meantime received an eviction notice requiring her to vacate the official accommodation occupied by her. By an order dated 11th May, 2009, the learned Magistrate directed the Petitioner to let the Respondent live on the 1st Floor of House No.D-279, Nirman Vihar, New Delhi, which she claimed to be her permanent matrimonial home. The learnedMagistrate directed that if this was not possible, a reasonable accommodation in the vicinity of Nirman Vihar was to be made available to the Respondent wife. She further directed that if the second option was also not possible, the Petitioner would be required to pay a sum of Rs.10,000/- per month to the Respondent as rental charges, so that she could find a house of her choice.
4. Being dissatisfied with the order passed by the learned Metropolitan Magistrate, the Respondent preferred an appeal, which came to be dismissed on 18th September, 2009, by the learned Additional Sessions Judge, who was of the view that since the Respondent had left the matrimonial home on 4th July, 2005, and the Act came into force on 26th October, 2006, the claim of a woman living in domestic relationship or living together prior to 26th October, 2006, was not maintainable. The learned Additional Sessions Judge was of the viewthat since the cause of action arose prior to coming into force of the PWD Act, the Court could not adjudicate upon the merits of the Respondent’s case.
5. Before the Delhi High Court, the only question which came up for determination was whether the petition under the provisions of the PWD Act, 2005, was maintainable by a woman, who was no longer residing with her husband or who was allegedly subjected to any act of domestic violence prior to the coming into force of the PWD Act on 26th October, 2006. After considering the constitutional safeguards under Article 21 of the Constitution, vis-à-vis, the provisions of Sections 31 and 33 of the PWD Act, 2005, and after examining the statement of objects and reasons for the enactment of the PWD Act, 2005, the learned Judge held that it was with the view of protecting the rights of women under Articles 14, 15 and 21 of theConstitution that the Parliament enacted the PWD Act, 2005, in order to provide for some effective protection of rights guaranteed under the Constitution to women, who are victims of any kind of violence occurring within the family and matters connected therewith and incidental thereto, and to provide an efficient and expeditious civil remedy to them. The learned Judge accordingly held that a petition under the provisions of the PWD Act, 2005, is maintainable even if the acts of domestic violence had been committed prior to the coming into force of the said Act, notwithstanding the fact that in the past she had lived together with her husband in a shared household, but was no more living with him, at the time when the Act came into force. The learned Judge, accordingly, set aside the order passed by the Additional Sessions Judge and directed him to consider the appeal filed by the Respondent wife on merits.
6. As indicated hereinbefore, the Special Leave Petition is directed against the said order dated 22nd March, 2010, passed by the Delhi High Court and the findings contained therein.
7. During the pendency of the Special Leave Petition, on 15th September, 2011, the Petitioner appearing in-person submitted that the disputes between him and the Respondent had been resolved and the parties had decided to file an application for withdrawal of the Special Leave Petition. The matter was, thereafter, referred to the Supreme Court Mediation Centre and during the mediation, a mutual settlement signed by both the parties was prepared so that the same could be filed in the Court for appropriate orders to be passed thereupon. However, despite the said settlement, which was mutually arrived at by the parties, on 17th January, 2011, when the matter was listed for orders to be passed on the settlement arrived atbetween the parties, an application filed by the Petitioner was brought to the notice of the Court praying that the settlement arrived at between the parties be annulled. Thereafter, the matter was listed in-camera in Chambers and we had occasion to interact with the parties in order to ascertain the reason for change of heart. We found that while the wife was wanting to rejoin her husband’s company, the husband was reluctant to accept the same. For reasons best known to the Petitioner, he insisted that the mutual settlement be annulled as he was not prepared to take back the Respondent to live with him.
8. The attitude displayed by the Petitioner has once again thrown open the decision of the High Court for consideration. We agree with the view expressed by the High Court that in looking into a complaint under Section 12 of the PWD Act, 2005, the conduct of the parties even prior to the cominginto force of the PWD Act, could be taken into consideration while passing an order under Sections 18, 19 and 20 thereof. In our view, the Delhi High Court has also rightly held that even if a wife, who had shared a household in the past, but was no longer doing so when the Act came into force, would still be entitled to the protection of the PWD Act, 2005.
9. On facts it may be noticed that the couple has no children. Incidentally, the Respondent wife is at present residing with her old parents, after she had to vacate the matrimonial home, which she had shared with the Petitioner at Mathura, being his official residence, while in service. After more than 31 years of marriage, the Respondent wife having no children, is faced with the prospect of living alone at the advanced age of 63 years, without any proper shelter or protection and without any means of sustenance except for a sum ofRs.6,000/- which the Petitioner was directed by the Magistrate by order dated 8th December, 2006, to give to the Respondent each month. By a subsequent order dated 17th February, 2007, the Magistrate also passed a protection-cum-residence order under Sections 18 and 19 of the PWD Act, protecting the rights of the Respondent wife to reside in her matrimonial home in Mathura. Thereafter, on the Petitioner’s retirement from service, the Respondent was compelled to vacate the accommodation in Mathura and a direction was given by the Magistrate to the Petitioner to let the Respondent live on the 1st Floor of House No.D-279, Nirman Vihar, New Delhi, and if that was not possible, to provide a sum of Rs.10,000/- per month to the Respondent towards rental charges for acquiring an accommodation of her choice.
10. In our view, the situation comes squarely within the ambit of Section 3 of the PWD Act, 2005,which defines “domestic violence” in wide terms, and, accordingly, no interference is called for with the impugned order of the High Court. However, considering the fact that the couple is childless and the Respondent has herself expressed apprehension of her safety if she were to live alone in a rented accommodation, we are of the view that keeping in mind the object of the Act to provide effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family, the order of the High Court requires to be modified. We, therefore, modify the order passed by the High Court and direct that the Respondent be provided with a right of residence where the Petitioner is residing, by way of relief under Section 19 of the PWD Act, and we also pass protection orders under Section 18 thereof. As far as any monetary relief is concerned, the same has already been provided by the learned Magistrate andin terms of the said order, the Respondent is receiving a sum of Rs.6,000/- per month towards her expenses.
11. Accordingly, in terms of Section 19 of the PWD Act, 2005, we direct the Petitioner to provide a suitable portion of his residence to the Respondent for her residence, together with all necessary amenities to make such residential premises properly habitable for the Respondent, within 29th February, 2012. The said portion of the premises will be properly furnished according to the choice of the Respondent to enable her to live in dignity in the shared household. Consequently, the sum of Rs.10,000/- directed to be paid to the Respondent for obtaining alternative accommodation in the event the Petitioner was reluctant to live in the same house with the Respondent, shall stand reduced from Rs.10,000/- to Rs.4,000/-, which will be paid to the Respondent in addition to the sum ofRs.6,000/- directed to be paid to her towards her maintenance. In other words, in addition to providing the residential accommodation to the Respondent, the Petitioner shall also pay a total sum of Rs.10,000/- per month to the Respondent towards her maintenance and day-to-day expenses.
12. In the event, the aforesaid arrangement does not work, the parties will be at liberty to apply to this Court for further directions and orders. The Special Leave Petition is disposed of accordingly.
13. There shall, however, be no order as to costs.
Equivalent Citations:- 2012 (1) KLT 637 : 2012 (1) KLJ 723 : 2012 (1) KHC 610 : 2012 (1) KLD 287 : AIR 2012 SC 965 : (2012) 3 SCC 183 : JT 2012 (2) SC 647 : 2012 (2) SCALE 367
posted Dec 26, 2011, 7:48 AM by Kerala Law Reporter [ updated Jan 5, 2012, 5:08 AM ]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CYRIAC JOSEPH AND T.S. THAKUR, JJ.
December 16, 2011
SPECIAL LEAVE PETITION (CRL.) No.4010 of 2011
J U D G M E N T
T.S. THAKUR, J.
1. The High Court of Gujarat at Ahmedabad has by its order dated 13th September, 2010 allowed Criminal Misc. -- Application No.9119/2010 and enlarged the respondent, Ganga Maldebhai Odedara on bail under Section 439 of Code of Criminal Procedure. The present Special Leave Petition has been filed by the complainant assailing the said order.
2. Briefly stated, the prosecution case is that 14th January, 2007, being Makar Sankranti Day, the complainant-Jetha Bhaya Odedara, the petitioner before us, was sitting at the house of one Abha Arjan, along with Navgan Arasi, Rama Arasi Jadeja, Suresh Sanghan Odedara and a few ladies of the house, named, Aarsi Munja, Maliben and Puriben. At around 8.00 p.m. one Ramde Rajsi Odedara, one of the accused persons is alleged to have come to the place where the complainant was sitting and started using abusive language. He was asked not to do so, thereupon he left the place only to return a few minutes later with accused Punja Ram, Lakha Ram, Devsi Rama, Vikram Keshu Odedara, Gangu Ranmal, Vikram DevsiOdedara, Ramde Rajsi Odedara and the respondent and some others armed with knives and a pistol which the -- respondent was allegedly carrying with him. The accused persons started abusing and assaulting the complainant and others who were sitting with him resulting in knife injuries to Vikram Keshu, Navgan Arasi, Rama Arasi and Puriben. Respondent Ganga Maldebhai Odedara is alleged to have fired multiple rounds from the pistol in the air exhorting his companions to kill the complainant and others with him. Navgan Arasi died in the hospital on account of the injuries sustained by him leading to the registration of FIR No. I Cr.No.4/2007 in the Kirti Mandir Police Station, Porbandar City against the respondent and his companions for offences punishable under Sections 302, 307, 324, 147, 148, 149, 323, 504, 507 (2) of IPC read with Section 25(1) of the Arms Act and Section 135 of the Bombay Police Act. With the death of the deceased, Navgan Arasi, in due course the investigation was completed and a charge sheet for the offences mentioned above filed before the Sessions Judge, Porbandar, who made over the case to Fast Track Court, Porbandar for trial and disposal in accordance withlaw.
3. An application, being Crl. Misc. Application No.3/2010 was then filed by the respondent before the trial Court for grant of bail which was opposed by the prosecution and eventually dismissed by its order dated 11th February, 2010. The trial Court was of the view that no case for the grant of bail to the respondent-applicant had in the facts and circumstances of the case been made out particularly in view of the fact that the respondent was involved in several criminal cases apart from the one in which he was seeking bail. The trial Court was also of the view that the respondent was a member of the gang operating in Porbandar area and that he had absconded for a month before he was arrested. It was also of the view that the role played by the respondent and his association with the other accused persons was likely to affect the smooth conduct of the trial.
4. Aggrieved by the order passed by the trial Court the respondent filed Criminal Misc. Application No.9119/2010before the High Court of Gujarat at Ahmedabad which application as noticed earlier, was allowed by the High -- Court in terms of the impugned order in this petition. The High Court has without scrutinizing and appreciating the evidence in detail come to the conclusion that the respondent had made out a case for grant of bail. The High Court also noticed the fact that no injury was caused with the help of the firearm which the respondent was allegedly carrying with him. The High Court accordingly allowed the application subject to the condition that the respondent shall not take undue advantage of his liberty, tamper with or pressurize the witnesses and that he shall maintain law and order and mark his presence before the concerned police station once in a month. He was also directed to surrender his passport and not to enter Porbandar Taluka limits for a period of six months. The present special leave petition assails the correctness of the above order.
5. We have heard learned counsel for the parties at some length. We have also gone through the record. While the petitioner-complainant has described the respondent andother accused persons as a desperate gang active in Porbandar area and involved in commission of several -- offences, the respondent has in the counter affidavit filed by him made a similar allegation giving particulars of the cases registered against the petitioner and some of the witnesses. In para 4 of the counter affidavit the respondent has stated thus:
I state that the complainants’ side is a well recognised Gang, properly known as ‘Arjun Gang’ and ‘God Mother Gang’. Prosecution witness-Abha Arjan, who is the brother of the deceased is the real son of Arjan Munja Jadeja. Arjan Munja Jadega is the real brother of deceased Sarman Munja Jadeja who was a well known history sitter of Porbandar. After death of Sarman Munja, Santokben Jadeja, properly known as ‘God Mother’ took the charge of Gang and it was known as God Mother Gang. Series of offences have been registered against ‘Arjun Gang’ and ‘God Mother Gang’. Abha Arjan is the nephew of Santokben Jadeja. Abha Arjan Jadeja is involved in series of offences stated herein below:
ABHA ARJAN JADEJA
C.R. No. Offence U/s. Police Station
II-3068/2001 25 (1B) A, etc. of Arms Act Madhavpur
II-101/1995 25 (1B) A, etc. of Arms Act Kutiyana
II-28/1995 25 (1B) A, etc. of Arms Act Kutiyana
II-33/1990 504, 506(2), etc. of IPC Kamlabaug
I-193/1997 302, 120-B of IPC and Sec. 25 (1B) of Arms Act Kamlabaug
I-170/1994 307, 302 etc. of IPC Kamlabaug
II-30/1990 506(2), 114, etc. of IPC Kamlabaug
II-54/1997 25 (1B) (A), 25 (1) (D) of Arms Act Ranavav
II-3/1994 25 (1B) (A), 25 (1) (D) of the Arms Act Ranavav
I-20/1990 367, 147, 325, etc. of IPC and 25 (1) A of the Arms Act Kutiyana
I-91/1990 147, 148, 149, 323, 324 of IPC Kirti Mandir
I say and submit that the complainants’ side is a well recognized Gang, properly known as ‘Arjun Gang’ and ‘God Mother Gang’. Prosecution witnesses viz. Jetha Bhaya, Suresh Sangan Odedra, Keshu Chana Kudechha, Bhima Rama Bhutiya, Prakash Punja Kadechha, Rama Arshi, Amit Nebha Bhutiya are the members of ‘Arjun Gang’ and ‘God Mother Gang’. All these prosecution witnesses are involved in series of offences stated herein below:
JETHA BHAYA ODEDRA-COMPLAIANT
C.R. No. Offence U/s. Police Station
I-44/1995 302 of IPC Udhyognagar
I-177/1994 307, 147, 148, 149 etc. of IPC Kamlabaug
SURESH SANGAN ODEDRA C.R. No. Offence U/s. Police Station
II-79/1993 135-B of B.P. Act Kamlabaug
I-189/1993 302 of IPC Kamlabaug
I-24/2001 323, 324 etc. of IPC Kamlabaug
II-20/1992 110, 117, 135 of B.P. Act Kamlabaug
II-61/1995 122-C of B.P. Act Kirti Mandir
BHIMA RAMA BHUTIYA - C.R. No. Offence U/s. Police Station
III- /1991 66B & 65E of Prohibition Act Kirti Mandir
I-101/1991 323, 324, 325, 114 of IPC and Section 135 of B.P. Act. Kirti Mandir
III-5132/2003 66(1)B and 65(1)E of Prohibition Act Kirti Mandir
I-44/1993 279, 337, 338 of IPC and 177, 184, etc. M.V. Act Udhyognagar
I-252/1991 302 of IPC and 25(1) of Arms Act and 135 of B.P. Act Kamlabaug
I-30/1993 302 of IPC Madhavpur I-46/1993 147, 325, 149, etc. of IPC Madhavpur
III-18/1992 66-B, 65E of the Prohibition Act Madhavpur
II-28/1995 25 (1) B-A of Arms Act Kutiyana
II-3003/2001 142 of B.P. Act Madhavpur
I-49/2001 447, 323, 506 (2), etc. of IPC Udhyognagar
III-5085/2000 66-B, 66EE of Prohibition Act Madhavpur
I-54/2000 66-B, 65Ee of Prohibition Act Madhavpur
II-3054/2000 142 of B.P. Act Madhavpur
I-17/1994 143, 506 (2) of IPC Madhavpur
PRAKASH PUNJA KUCHHADIYA
C.R. No. Offence U/s. Police Station
II-97/2007 135 of B.P. Act Kirti Mandir
II-3025/2002 135 of B.P. Act Kirti Mandir
III-5275/2002 66-1-B, 85(1-3) of Prohibition Act Kirti Mandir
III-5052/1999 66-1-B, 85(1-3) of Prohibition Act Kirti Mandir
I-102/2001 279, 337 of IPC and 337, 184, 177 of M.V. Act Kirti Mandir
RAMA ARSHI JADEJA
C.R. No. Offence U/s. Police Station
II-96/2007 135 of B.P. Act Kirti Mandir
AMIT NEBHA BHUTIYA C.R. No. Offence U/s. Police Station
III-5019/1999 66(1) B of Prohibition Act Kirti Mandir
6. The petitioner has not filed any rejoinder to the counter affidavit filed on behalf of the respondent. If the allegations made in the special leave petition and those made in the counter affidavit are correct, the incident appears to have been the result of a gang war between ‘Kotda Gang’ of which the respondent is said to be amember and ‘Arjun Gang’ of which the complainantpetitioner and some of the witnesses are said to be active members. It is true that while no one including a gangster has any right to take law into his own hands or to criminally assault any other gangster operating in any area or any one else for that matter, the fact that two gangs appear to be at war with each other and involved in commission of several offences, makes it imperative that the rival versions presented before the Court in connection with the incident in question are examined carefully and with added circumspection. Having said that we need to note that the bail order was passed as early as on 11th February, 2010 i.e. nearly two years back. It is not the case of the complainant that the respondent has during this period either tried to tamper with the evidence or committed any other act that may affect the fairness of the trial. Equally significant is the fact that there was no gunshot injury to either the complainant or the deceased or any other person involved in the incident. In the circumstances and keeping in view the fact that the prosecution shall be free to apply for cancellation of bail should the respondent fail to complywith any of the conditions imposed upon him by the High Court in the order under challenge, we are not inclined to interfere with the order granting bail at this stage.
7. The special leave petition is dismissed with these observations. We make it clear that nothing said by us in this order shall prejudice either the prosecution or the defence. The observations made by us are relevant only for the disposal of the petition and will not be taken to be the expression of any opinion on the merits of the case pending before the court below.
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