Friday, November 4, 2011
Tuesday, August 30, 2011
This Writ Petition under Article 32 of the Constitution had been initially filed challenging the constitutional validity of the Haj Committee Act 1959,
Prafull Goradia Vs Union of India
ORDER
Heard learned counsel for the parties. This Writ Petition under Article 32 of the Constitution had been initially filed challenging the constitutional validity of the Haj Committee Act 1959, but thereafter by an amendment application the Haj Committee Act of 2002 which replaced the 1959 Act, has been challenged. The ground for challenge is that the said Act is violative of Articles14, 15, and 27 of the Constitution. The grievance of the petitioner is that he is a Hindu but he has to pay direct and indirect taxes, part of whose proceeds go for the purpose of the Haj pilgrimage, which is only done by Muslims. For the Haj, the Indian Government inter alia grants a subsidy in the air fareof the pilgrims. Particular emphasis has been given by the petitioner to Article 27 of the Constitution which states:- "27. Freedom as to payment of taxes for promotion of any particular religion.--No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination."The petitioner contends that his fundamental right under Article 27 of the Constitution is being violated. We have, therefore, to correctly understand and interpret Article 27.
There are not many decisions which have given an in depth interpretation of Article 27. The decision in Commissioner, Hindu Religious Endowments vs. Sri Lakshmindra Thirtha Swamiar, 1954 (5)SCR 1005 held (vide page 1045) that since the object of the Madras Hindu Religious and Charitable Endowments Act, 1951 is not to foster or pre serve the Hindu religion but to see that religious trusts and institutions are properly administered, Article 27 is not attracted. The same view was taken in Jagannath Ramanuj Das vs. State of Orissa and Anr. 1954(5) SCR1046. The decision in T.M.A. Pae Foundation vs. State of Karnataka, AIR 2003 SC 355 (vide paragraph 85) does not really deal with Article 27 at any depth. There can be two views about Article 27. One view can be that Article 27 is attracted only when the statute by which the tax is levied specifically states that the proceeds of the tax will be utilized for a particular religion.
The other view can be that Article 27 will be attracted even when the statute is a general statute, like the Income Tax Act or the Central Excise Act or the State Sales Tax Acts (which do not specify for what purpose the proceeds will be utilized) provided that a substantial part of such proceeds are in fact utilized for a particular religion. In our opinion Article 27 will be attracted in both these eventualities. This is because Article 27 is a provision in the Constitution, and not an ordinary statute. Principles of interpreting the Constitution are to some extent different from those of interpreting an ordinary statute vide judgment of Hon'ble Sikri, J. in Kesavanand Bharati vs. State of Kerala, 1973 (4)SCC 225 (vide para 15).
The object of Article 27 is to maintain secularism, and hence we must construe it from that angle. As Lord Wright observed in James vs. Commonwealth of Australia, (1936) AC 578, a Constitution is not to be interpreted in a narrowor pedantic manner (followed in re C.P. & Berar Act, AIR 1939 F.C.I.).This is because a Constitution is a constituent or organic statute, vide British Coal Corporation vs. The King, AIR 1935 P.C. 158 and Kesavanand Bharati vs. State of Kerala, 1973 (4) SCC 225 (vide para506). While a statute must ordinarily be construed as on the day it was enacted, a Constitution cannot be construed in that manner, for it is intended to endure for ages to come, as Chief Justice Marshal of the U.S. Supreme Court observed in McCulloch vs. Maryland, 17 U.S. 316(1819) and by Mr. Justice Holmes in Missourie vs. Holland, 252 U.S. 416(1920). Hencea strict construction cannot be given to it. In our opinion Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any othe rtax collected in India, were to be utilized for promotion or maintenance of any particular religion or religious denomination.
In other words, suppose25 per cent of the entire income tax collected in India was utilized for promoting or maintaining any particular religion or religious denomination that, in our opinion, would be violative of Article 27 of the Constitution. However, the petitioner has not made any averment in his Writ Petition that a substantial part of any tax collected in India is utilized for the purpose of Haj. All that has been said in paragraph 5 (i) and (ii) of the Writ Petition is :-
"(i) That the respondent herein has been imposing and collecting various kinds of direct and indirect taxes from the petitioner and other citizens of the country.
(ii) That a part of the taxes so collected have been utilized for various purposes including promotion and maintenance of a particular religion and religious institutions.
" Thus, it is nowhere mentioned in the Writ Petition as to what percentage of any particular tax has been utilized for the purpose of the Hajpilgrimage. The allegation in para 5(ii) of the Writ Petition is very vague. In our opinion, if only a relatively small part of any tax collected is utilized for providing some conveniences or facilities or concessions to any religious denomination, that would not be violative of Article 27 of the Constitution. It is only when a substantial part of the tax is utilized for any particular religion that Article 27 would be violated. As pointed out in para 8 (iv), (v) and (viii) of the counter affidavit filed on behalf of the Central Government, the State Government incurs some expenditure for the Kumbh Mela, the Central Government incurs expenditure for facilitating Indian citizens to go on pilgrimage to Mansarover, etc. Similarly in para 8 (vii) of the counter affidavit it is mentioned that some State Governments provide facilities to Hindu and Sikh pilgrims to visit Temples and Gurudwaras in Pakistan.
These are very small expenditures in proportion to the entire tax collected. Moreover, in para 8(iii) of the counter affidavit the Central Government has stated that it is not averse to the idea of granting support to the pilgrimage conducted by any community. In our opinion, we must not be too rigid in these matters, and must give some free play to the joints of the State machinery. A balanced view has to be taken here, and we cannot say that even if one paisa of Government money is spent for a particular religion there will be violation of Article 27. As observed by Mr. Justice Holmes, the celebrated Judge of the U.S. Supreme Court in Bain Peanut Co. vs. Pinson, 282 U.S. 499, 501 (1931)"The interpretation of constitutional principles must not be too literal. We must remember that the machinery of the government would not work if it were not allowed a little play in its joints" (see also Missourie, Kansas and Tennessee Railroad vs. May, 194 U.S. 267 (1904).
Hence, in our opinion, there is no violation of Article 27 of the Constitution. There is also no violation of Articles 14 and 15 because facilities are also given, and expenditures incurred, by the Central and State Governments in India for other religions. Thus there is no discrimination. In Transport & Dock Workers Union vs. Mumbai Port Trust,2010(12) Scale 217 this Court observed that Article 14 cannot be interpreted in a doctrinaire or dogmatic manner. It is not prudent or pragmatic for the Court to insist on absolute equality when there are diverse situations and contingencies, as in the present case (vide paragraphs 39 and 43). Apart from the above, we have held in Government of Andhra Pradesh vs. P. Laxmi Devi, AIR 2008 SC 1640 that Court should exercise great restraint when deciding the constitutionality of a statute, and every effort should be made to uphold its validity. Parliament has the legislative competence to enact the Haj Committee Act in view of entry 20 to List 1 of the Seventh Schedule to the Constitution which states : "Pilgrimages to places outside India".
Thus there is no force in this petition and it is dismissed. Before parting with this case we would like to mention that India is a country of tremendous diversity, which is due to the fact that it is broadly a country of immigrants (like North America) as explained in detail by us in Kailas & Others vs. State of Maharashtra, JT 2011 (1) 19. As observed in paragraph 32 of the said decision, since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and equal respect for all communities and sects (see also in this connection the decision in Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamaat, AIR 2008 SC 1892 vide paragraphs 41 to 60). It is due to the wisdom of our founding fathers that we have a Constitution which is secular in character, and which caters to the tremendous diversity in our country.
It may be mentioned that when India became independent in 1947there were partition riots in many parts of the sub-continent, and a large number of people were killed, injured and displaced. Religious passions were inflamed at that time, and when passions are inflamed it is difficult to keep a cool head. It is the greatness of our founding fathers that under the leader ship of Pandit Jawaharlal Nehru they kept a cool head and decided to declare India a secular country instead of a Hindu country. This was a very difficult decision at that time because Pakistan had declared itself an Islamic State and hence there must have been tremendous pressure on Pandit Jawaharlal Nehru and our other leaders to declare a Hindu State. It is their greatness that they resisted this pressure and kept a cool head and rightly declared India to be a secular state. This is why despite all its tremendous diversity India is still united. In this sub-continent, with all its tremendous diversity (because 92 percent of the people living in the sub continent are descendants of immigrants) the only policy which can work and provide for stability and progress is secularism and giving equal respect to all communities, sects, denominations, etc.
.................................J [Markandey Katju]
.................................J.[Gyan Sudha Misra]
New Delhi;
January 28, 2011
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ORDER
Heard learned counsel for the parties. This Writ Petition under Article 32 of the Constitution had been initially filed challenging the constitutional validity of the Haj Committee Act 1959, but thereafter by an amendment application the Haj Committee Act of 2002 which replaced the 1959 Act, has been challenged. The ground for challenge is that the said Act is violative of Articles14, 15, and 27 of the Constitution. The grievance of the petitioner is that he is a Hindu but he has to pay direct and indirect taxes, part of whose proceeds go for the purpose of the Haj pilgrimage, which is only done by Muslims. For the Haj, the Indian Government inter alia grants a subsidy in the air fareof the pilgrims. Particular emphasis has been given by the petitioner to Article 27 of the Constitution which states:- "27. Freedom as to payment of taxes for promotion of any particular religion.--No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination."The petitioner contends that his fundamental right under Article 27 of the Constitution is being violated. We have, therefore, to correctly understand and interpret Article 27.
There are not many decisions which have given an in depth interpretation of Article 27. The decision in Commissioner, Hindu Religious Endowments vs. Sri Lakshmindra Thirtha Swamiar, 1954 (5)SCR 1005 held (vide page 1045) that since the object of the Madras Hindu Religious and Charitable Endowments Act, 1951 is not to foster or pre serve the Hindu religion but to see that religious trusts and institutions are properly administered, Article 27 is not attracted. The same view was taken in Jagannath Ramanuj Das vs. State of Orissa and Anr. 1954(5) SCR1046. The decision in T.M.A. Pae Foundation vs. State of Karnataka, AIR 2003 SC 355 (vide paragraph 85) does not really deal with Article 27 at any depth. There can be two views about Article 27. One view can be that Article 27 is attracted only when the statute by which the tax is levied specifically states that the proceeds of the tax will be utilized for a particular religion.
The other view can be that Article 27 will be attracted even when the statute is a general statute, like the Income Tax Act or the Central Excise Act or the State Sales Tax Acts (which do not specify for what purpose the proceeds will be utilized) provided that a substantial part of such proceeds are in fact utilized for a particular religion. In our opinion Article 27 will be attracted in both these eventualities. This is because Article 27 is a provision in the Constitution, and not an ordinary statute. Principles of interpreting the Constitution are to some extent different from those of interpreting an ordinary statute vide judgment of Hon'ble Sikri, J. in Kesavanand Bharati vs. State of Kerala, 1973 (4)SCC 225 (vide para 15).
The object of Article 27 is to maintain secularism, and hence we must construe it from that angle. As Lord Wright observed in James vs. Commonwealth of Australia, (1936) AC 578, a Constitution is not to be interpreted in a narrowor pedantic manner (followed in re C.P. & Berar Act, AIR 1939 F.C.I.).This is because a Constitution is a constituent or organic statute, vide British Coal Corporation vs. The King, AIR 1935 P.C. 158 and Kesavanand Bharati vs. State of Kerala, 1973 (4) SCC 225 (vide para506). While a statute must ordinarily be construed as on the day it was enacted, a Constitution cannot be construed in that manner, for it is intended to endure for ages to come, as Chief Justice Marshal of the U.S. Supreme Court observed in McCulloch vs. Maryland, 17 U.S. 316(1819) and by Mr. Justice Holmes in Missourie vs. Holland, 252 U.S. 416(1920). Hencea strict construction cannot be given to it. In our opinion Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any othe rtax collected in India, were to be utilized for promotion or maintenance of any particular religion or religious denomination.
In other words, suppose25 per cent of the entire income tax collected in India was utilized for promoting or maintaining any particular religion or religious denomination that, in our opinion, would be violative of Article 27 of the Constitution. However, the petitioner has not made any averment in his Writ Petition that a substantial part of any tax collected in India is utilized for the purpose of Haj. All that has been said in paragraph 5 (i) and (ii) of the Writ Petition is :-
"(i) That the respondent herein has been imposing and collecting various kinds of direct and indirect taxes from the petitioner and other citizens of the country.
(ii) That a part of the taxes so collected have been utilized for various purposes including promotion and maintenance of a particular religion and religious institutions.
" Thus, it is nowhere mentioned in the Writ Petition as to what percentage of any particular tax has been utilized for the purpose of the Hajpilgrimage. The allegation in para 5(ii) of the Writ Petition is very vague. In our opinion, if only a relatively small part of any tax collected is utilized for providing some conveniences or facilities or concessions to any religious denomination, that would not be violative of Article 27 of the Constitution. It is only when a substantial part of the tax is utilized for any particular religion that Article 27 would be violated. As pointed out in para 8 (iv), (v) and (viii) of the counter affidavit filed on behalf of the Central Government, the State Government incurs some expenditure for the Kumbh Mela, the Central Government incurs expenditure for facilitating Indian citizens to go on pilgrimage to Mansarover, etc. Similarly in para 8 (vii) of the counter affidavit it is mentioned that some State Governments provide facilities to Hindu and Sikh pilgrims to visit Temples and Gurudwaras in Pakistan.
These are very small expenditures in proportion to the entire tax collected. Moreover, in para 8(iii) of the counter affidavit the Central Government has stated that it is not averse to the idea of granting support to the pilgrimage conducted by any community. In our opinion, we must not be too rigid in these matters, and must give some free play to the joints of the State machinery. A balanced view has to be taken here, and we cannot say that even if one paisa of Government money is spent for a particular religion there will be violation of Article 27. As observed by Mr. Justice Holmes, the celebrated Judge of the U.S. Supreme Court in Bain Peanut Co. vs. Pinson, 282 U.S. 499, 501 (1931)"The interpretation of constitutional principles must not be too literal. We must remember that the machinery of the government would not work if it were not allowed a little play in its joints" (see also Missourie, Kansas and Tennessee Railroad vs. May, 194 U.S. 267 (1904).
Hence, in our opinion, there is no violation of Article 27 of the Constitution. There is also no violation of Articles 14 and 15 because facilities are also given, and expenditures incurred, by the Central and State Governments in India for other religions. Thus there is no discrimination. In Transport & Dock Workers Union vs. Mumbai Port Trust,2010(12) Scale 217 this Court observed that Article 14 cannot be interpreted in a doctrinaire or dogmatic manner. It is not prudent or pragmatic for the Court to insist on absolute equality when there are diverse situations and contingencies, as in the present case (vide paragraphs 39 and 43). Apart from the above, we have held in Government of Andhra Pradesh vs. P. Laxmi Devi, AIR 2008 SC 1640 that Court should exercise great restraint when deciding the constitutionality of a statute, and every effort should be made to uphold its validity. Parliament has the legislative competence to enact the Haj Committee Act in view of entry 20 to List 1 of the Seventh Schedule to the Constitution which states : "Pilgrimages to places outside India".
Thus there is no force in this petition and it is dismissed. Before parting with this case we would like to mention that India is a country of tremendous diversity, which is due to the fact that it is broadly a country of immigrants (like North America) as explained in detail by us in Kailas & Others vs. State of Maharashtra, JT 2011 (1) 19. As observed in paragraph 32 of the said decision, since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and equal respect for all communities and sects (see also in this connection the decision in Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamaat, AIR 2008 SC 1892 vide paragraphs 41 to 60). It is due to the wisdom of our founding fathers that we have a Constitution which is secular in character, and which caters to the tremendous diversity in our country.
It may be mentioned that when India became independent in 1947there were partition riots in many parts of the sub-continent, and a large number of people were killed, injured and displaced. Religious passions were inflamed at that time, and when passions are inflamed it is difficult to keep a cool head. It is the greatness of our founding fathers that under the leader ship of Pandit Jawaharlal Nehru they kept a cool head and decided to declare India a secular country instead of a Hindu country. This was a very difficult decision at that time because Pakistan had declared itself an Islamic State and hence there must have been tremendous pressure on Pandit Jawaharlal Nehru and our other leaders to declare a Hindu State. It is their greatness that they resisted this pressure and kept a cool head and rightly declared India to be a secular state. This is why despite all its tremendous diversity India is still united. In this sub-continent, with all its tremendous diversity (because 92 percent of the people living in the sub continent are descendants of immigrants) the only policy which can work and provide for stability and progress is secularism and giving equal respect to all communities, sects, denominations, etc.
.................................J [Markandey Katju]
.................................J.[Gyan Sudha Misra]
New Delhi;
January 28, 2011
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Sections 302 and 307 read with Section 34 I.P.C.
Jagat Singh Vs State of H.P.
JUDGMENT
P. Sathasivam, J.
1. This appeal is filed against the final order and judgment dated 05.05.2010/26.05.2010 of the High Court of Himachal Pradesh at Shimla in Criminal Appeal No. 270 of 1998whereby the High Court reversed the order of acquittal of the appellant passed by the Sessions Judge, Un a and convicted him under Sections 302 and 307 read with Section 34 I.P.C.
2. The brief facts leading to the filing of this appeal are as follows:
a. Vikram Singh, the complainant (PW-1), his brother Bachittar Singh (since deceased) and Jagat Singh, appellant/accused (A-1), are residents of village Dehlan.Vikram Singh had a land dispute with the accused for the last4/5 years. Rattan Singh - accused No.2 filed an application before the Assistant Settlement Officer (in short "ASO"), Un a for demarcation of the land in dispute. On 29.04.1997, the ASO accompanied by Kanungo and Patwari had come to the spot for carrying out the demarcation of the said land. Jagat Singh (A-1), and Rattan Singh (A-2) also reached there. The field which was to be demarcated was situated by the side of the house of one Sehdev Singh. On learning that the accusedhave brought the ASO for demarcating the disputed land which has already been settled in the Court, Vikram Singh, the Complainant (PW-1), and his brother Bachittar Singh (the deceased), also reached there. On seeing them, Jagat Singh (A-1) and Rattan Singh (A-2) started abusing them. At that stage, the ASO left the place and the demarcation of the land did not take place.
b. As soon as ASO left the place in a jeep, Jagat Singh (A-1)and Rattan Singh (A-2) took out their respective `Gatras' and stabbed the deceased on his chest. On seeing this, when Vikram Singh - the Complainant (PW-1), stepped forward to save his brother, Jagat Singh (A-1) stabbed him on the elbow of his right arm. Rattan Singh (A-2) also gave a blow on the right side of his chest. In the meanwhile, Avtar Kaur-wife, Gurdeep Kaur-daughter, Sarabjit Kaur-daughter-in-law of the deceased accompanied by Harnek Singh - son of Vikram Singh(PW-1) reached the place of incident. On seeing them, the accused persons ran away from the spot. Bachittar Singh and Vikram Singh were taken to the District Hospital, Una at about 3.30 p.m. However, Bachittar Singh died on the way while he was being taken to the hospital at Una. The complainant - (PW-1), after being given medical first aid was referred to Dayanand Medical College, Ludhiana. The matter was reported to the police over telephone. The police recorded the statement of Vikram Singh (PW-1) and on that basis, FIR was registered at Police Station, Una. During the course of investigation, one Gatra was recovered pursuant to the confession made by Jagat Singh (A-1). Another Gatra was handed over to the Investigator of the case by Gurdip Kaur, daughter of the deceased.
c. On completion of the investigation, the final report was filed in the Court of Chief Judicial Magistrate, Un a on24.07.1997. On 03.11.1997, the trial Court framed thecharges against the accused for committing offences punishable under Sections 302, 307, 324 read with Section 34I.P.C. The trial Court, by judgment dated 01.04.1998,acquitted all the accused persons.(d) Against the judgment of acquittal passed by the Trial Judge, Una, the State of H.P. filed an appeal before the High Court of Himachal Pradesh at Shimla.
The High Court, by the impugned judgment dated 05.05.2010, set aside the order of acquittal passed by the Sessions Judge, Una and convicted Jagat Singh (A-1) and Rattan Singh (A-2) under Sections 302and 307 read with Section 34 I.P.C. However, the appeal filed by the State against Parminder Singh (A-3) and Balwant Singh(A-4) was dismissed. On 26.05.2010, the High Court, while passing the order with regard to the quantum of sentence, sentenced Jagat Singh (A-1) to undergo imprisonment for life and to pay a fine of Rs. 2000/- and in default to undergo imprisonment for a further period of six months for the offence punishable under Section 302 read with Section 34 I.P.C. As regards the offence under Section 307/34 I.P.C., the appellant shall undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/-, in default to undergo simple imprisonment for a further period of six months. Since A-2was expired on 29.03.2009, the appeal against him was abated. Against the said order of conviction and sentence, the appellant (A-1) has filed this appeal before this Court.
(3) Heard Mr. R.K. Kapoor, learned counsel for the appellant and Ms. Kiran Bala Sahay, learned counsel for the respondent-State.(4) The prosecution case, as narrated by Vikram Singh (PW-1) is that he had a land dispute with the accused for the past four or five years. The second accused i.e. Rattan Singh (A-2) filed an application for demarcation of the land in dispute before the ASO. It is not in dispute that on 29.04.1997, the ASO accompanied by Kanungo and Patwari had come to the spot for carrying out the demarcation of the said land. At that time, the Complainant, PW-1, his brother - Bachittar Singh (the deceased), his son Harnek Singh and all the four accused were present there. As soon as the ASO started for demarcation, A-1 and A-2 started abusing the complainant and his brother.
On seeing the wordy quarrel, the ASO left the scene of occurrence. Immediately after his departure, Jagat Singh (A1) and Rattan Singh (A2) took out their respective Gatras and the other two accused, namely, Parminder Singh(A3) and Balwant Singh (A4) gesticulated towards the complainant party with their fists. In the course of such event, Jagat Singh A-1 and Rattan Singh A-2 inflicted blows with their respective Gatras on the chest of the deceased. On seeing the deceased being stabbed, the complainant - (PW-1)stepped forward to save him. Rattan Singh (A-2) gave a blow to the complainant with his Gatra on the right side of his chest. Jagat Singh (A-1) also gave a blow with his Gatra on his right elbow. A-3 and A-4 gave fist blows to the deceased. On seeing him crying, his wife, Avtar Kaur, daughter, GurdeepKaur, daughter in law Sarbjit Kaur and complainant's son Harnek Singh (PW-3) reached the place of incident. On seeing these persons, all the accused ran away from the spot.
The deceased, who was bleeding profusely and the complainant were taken to District Hospital, Una at about 3.30 p.m. However, Bachittar Singh succumbed to the injuries suffered by him on way to the hospital. The complainant, after being given medical first aid was referred to Dayanand Medical College, Ludhiana. Thereafter, the matter was reported to the police by the complainant and on that basis, FIR was registered being FIR No. 243 of 1997 at Police Station, Una. After trial, by order dated 01.04.1998, the trial Court acquitted all the accused. In the appeal filed by the State, (A-1) alone was convicted, as (A-2) died during the pendency of the case and the appeal against (A-3) and (A-4) was dismissed.5) Before considering the case of the prosecution, as discussed by the trial Court and the High Court, it is useful to refer the stand of the appellant-Jagat Singh (A1) from his statement made under Section 313 of the Code of Criminal Procedure (hereinafter referred to as `the Code').
He stated that he was working in the field when the ASO accompanied by Kanungo and Patwari came to their village. His brother Rattan Singh (A-2) had filed an application in which he had complained against the members of the staff of the Settlement Department. The ASO enquired his brother Rattan Singh. When the ASO was enquiring his brother, Bachittar Singh (the deceased) and Vikram Singh (PW-1) came there and started using abusive language against them. On seeing the situation, the ASO along with his staff left the village, however Vikram Singh and Bachittar Singh did not leave the courtyard of one Sehdev Singh and they continued using abusive language against them for about 20 minutes. Thereafter, Bachittar Singh pounced upon Rattan Singh (A-2), Vikram Singh (PW-1) had pounced upon him. Though he wanted to run away he found himself overpowered.
Vikram Singh (PW-1)laid him down on the ground and started throttling him. He requested Vikram Singh to release him from his clutches but of no use. He continued throttling him. Since he is an asthma patient and realizing that Vikram Singh was not going to release him then he took out his gatra Ext.P-12 and tried to frighten him by showing it to him but he did not release him. When he apprehended that Vikram Singh may kill him, hegave a Gatra blow, firstly, on his shoulder then on his chest but he continued to throttle him. Then he inflicted some more blows on his person. After receiving the blows, his grip loosened on his neck and then he managed to get up and ranaway.
Though similar statements were made by other accused, there is no need to refer the same.6) We have to find out whether the act of the appellant along with the other accused was deliberate and pre-planned in order to do away the life of the deceased or the offences alleged to have been committed have arisen from a free fight which had erupted at the spur of the moment. It is also relevant to ascertain whether the accused exceeded their right of private defence. It is not in dispute that in the fight between the persons belonging to the complainant and the accused, Bachittar Singh lost his life. Vikram Singh (PW-1) sustained injuries on his chest. The offences alleged to have been committed are the result of the same sequence of events which took place on 29.04.1997 at 2.30 p.m., near the house of Sehdev Singh at Village Dehlan. There is no dispute that the accused Jagat Singh (A-1) had filed a suit for permanent injunction against Vikram Singh (PW-1), Bachittar Singh (the deceased) and Smt. Thakri widow of Dina Nath. The said suit was compromised to the effect that none of the parties shall raise any construction over the land measuring 4 Marlas comprising of Khasra No. 2857 till the same is partitioned. When the ASO came to the spot in order to rectify wrong settlement work as claimed by the parties, a heated wordy quarrel started which ended with loss of life of one person.
There is no controversy that during the course of fight, Bachittar Singh (the deceased) sustained injuries on account of which he died. The post-mortem examination of the dead body of the deceased was performed by Dr. R.S. Dadhwal(PW-15) and he opined that the deceased died due to shock resulting from massive hemorrhage and injuries on the vital organs. The doctor noticed six wounds on the person of the deceased, on the nose, below the tip of left shoulder, posterior, on the right of the midline of the chest, on the left side of the chest and on the interior to the left axilla on the mis axillary line. Apart from the above injuries of the deceased as well as PW1, it is also relevant to note that the appellant Jagat Singh(A-1) and his brother Rattan Singh (A-2) also sustained injuries in the same commotion. Dr. Mrs. S. Sharma (DW-1),medically examined all the four accused and copies of which are marked as Exs. DA to DD respectively. Here again, we are concerned with the injuries on the person of Jagat Singh-appellant alone. 1. There was a reddish brown small bruise of the size of 2 cms x 1 cm on the chest on the left side of the lower one third of sternum. 2. There was bluish bruise on the left hip of the size of 8 cm x 7 cm. 3. There was bluish bruise 10 cm x 1/3cms with intervening healthy area on the left side of the abdomen 5 cms above the left iliac crest.
3. He had complained of pain on the right fore-arm. The injured was referred for treatment of bronchial asthama."7) As rightly observed by the trial Judge, the perusal of the statement of PWs 1 and 3 and the doctors leave no scope for doubt that a free fight had taken place in which members of both sides got injured and one person succumbed to the injuries. We have already adverted to the statement recorded under Section 313 of the Code, more particularly, the statement of the appellant-Jagat Singh which have thrown light that in what manner the fight ensued and ended. We have already mentioned that from the evidence of prosecution side as well as the statement by the accused recorded under Section 313 of the Code, it is very much clear that a free fight had taken place.
It is also clear and as narrated by the accused under Section 313 of the Code that to save themselves, they stabbed the deceased and the complainant. Both A1 and A2 happened to be baptized Sikhs and as per religious necessity they have to carry Gatra on their persons and in order to save them from the clutches of the deceased and the complainant, free blows were exchanged through Gatras.
It is also seen from the evidence that the main blow on the chest of the deceased was caused by Rattan Singh who died pending appeal before the High Court. (A-3) and (A-4) were acquitted by the trial Court and the High Court dismissed the appeal against them. Considering the evidence of the doctor with regard to the injuries sustained by the deceased, the complainant (PW-1) as well as the appellant/accused and the evidence of (DW-1) who examined the accused, the trial Court has rightly observed that they had no requisite intention to kill the deceased as envisaged under Section 300. As discussed earlier, on account of meddling with the enquiry conducted by the ASO, both the parties sustained injuries out of which the deceased succumbed to the injuries.8) From the materials placed by the prosecution as well as the defence, taking note of the fact that the trial Court has acquitted (A-3) and (A-4) and (A-2) died during the pendency of the appeal before the High Court, considering the nature of the injuries sustained by the deceased as opined by Dr. R.S.Dadhwal, (PW-15), and the injuries sustained by the appellant(A-1) as explained by Dr. Mrs. S. Sharma (DW-1), we hold that at the most, the appellant could be held under Section 323IPC for causing hurt on the body of the deceased.
We are also of the view that there is no acceptable evidence to the fact that the appellant had voluntarily caused hurt on the person of the deceased. Considering all these events and taking note of the fact that the persons in both the groups, namely, complainant and the accused sustained injuries in a free fight and also of the fact that the appellant A1 alone is before us, we feel that the ends of justice would be met by altering the conviction from Section 302 to Section 323. It is brought to our notice that he had served about a year in prison (pending trial) and is in prison for approximately seven months after conviction by the High Court, aged about 82 years and also suffering from asthma and other old age ailments. Considering all these aspects, we feel that the period undergone is sufficient and he be released forthwith if he is not required in any other offence. The appeal is allowed to this extent.
................................................J. (HARJIT SINGH BEDI)
................................................J. (P. SATHASIVAM)
….............................................J. (CHANDRAMAULI KR. PRASAD)
NEW DELHI;
JANUARY 3, 2011
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JUDGMENT
P. Sathasivam, J.
1. This appeal is filed against the final order and judgment dated 05.05.2010/26.05.2010 of the High Court of Himachal Pradesh at Shimla in Criminal Appeal No. 270 of 1998whereby the High Court reversed the order of acquittal of the appellant passed by the Sessions Judge, Un a and convicted him under Sections 302 and 307 read with Section 34 I.P.C.
2. The brief facts leading to the filing of this appeal are as follows:
a. Vikram Singh, the complainant (PW-1), his brother Bachittar Singh (since deceased) and Jagat Singh, appellant/accused (A-1), are residents of village Dehlan.Vikram Singh had a land dispute with the accused for the last4/5 years. Rattan Singh - accused No.2 filed an application before the Assistant Settlement Officer (in short "ASO"), Un a for demarcation of the land in dispute. On 29.04.1997, the ASO accompanied by Kanungo and Patwari had come to the spot for carrying out the demarcation of the said land. Jagat Singh (A-1), and Rattan Singh (A-2) also reached there. The field which was to be demarcated was situated by the side of the house of one Sehdev Singh. On learning that the accusedhave brought the ASO for demarcating the disputed land which has already been settled in the Court, Vikram Singh, the Complainant (PW-1), and his brother Bachittar Singh (the deceased), also reached there. On seeing them, Jagat Singh (A-1) and Rattan Singh (A-2) started abusing them. At that stage, the ASO left the place and the demarcation of the land did not take place.
b. As soon as ASO left the place in a jeep, Jagat Singh (A-1)and Rattan Singh (A-2) took out their respective `Gatras' and stabbed the deceased on his chest. On seeing this, when Vikram Singh - the Complainant (PW-1), stepped forward to save his brother, Jagat Singh (A-1) stabbed him on the elbow of his right arm. Rattan Singh (A-2) also gave a blow on the right side of his chest. In the meanwhile, Avtar Kaur-wife, Gurdeep Kaur-daughter, Sarabjit Kaur-daughter-in-law of the deceased accompanied by Harnek Singh - son of Vikram Singh(PW-1) reached the place of incident. On seeing them, the accused persons ran away from the spot. Bachittar Singh and Vikram Singh were taken to the District Hospital, Una at about 3.30 p.m. However, Bachittar Singh died on the way while he was being taken to the hospital at Una. The complainant - (PW-1), after being given medical first aid was referred to Dayanand Medical College, Ludhiana. The matter was reported to the police over telephone. The police recorded the statement of Vikram Singh (PW-1) and on that basis, FIR was registered at Police Station, Una. During the course of investigation, one Gatra was recovered pursuant to the confession made by Jagat Singh (A-1). Another Gatra was handed over to the Investigator of the case by Gurdip Kaur, daughter of the deceased.
c. On completion of the investigation, the final report was filed in the Court of Chief Judicial Magistrate, Un a on24.07.1997. On 03.11.1997, the trial Court framed thecharges against the accused for committing offences punishable under Sections 302, 307, 324 read with Section 34I.P.C. The trial Court, by judgment dated 01.04.1998,acquitted all the accused persons.(d) Against the judgment of acquittal passed by the Trial Judge, Una, the State of H.P. filed an appeal before the High Court of Himachal Pradesh at Shimla.
The High Court, by the impugned judgment dated 05.05.2010, set aside the order of acquittal passed by the Sessions Judge, Una and convicted Jagat Singh (A-1) and Rattan Singh (A-2) under Sections 302and 307 read with Section 34 I.P.C. However, the appeal filed by the State against Parminder Singh (A-3) and Balwant Singh(A-4) was dismissed. On 26.05.2010, the High Court, while passing the order with regard to the quantum of sentence, sentenced Jagat Singh (A-1) to undergo imprisonment for life and to pay a fine of Rs. 2000/- and in default to undergo imprisonment for a further period of six months for the offence punishable under Section 302 read with Section 34 I.P.C. As regards the offence under Section 307/34 I.P.C., the appellant shall undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/-, in default to undergo simple imprisonment for a further period of six months. Since A-2was expired on 29.03.2009, the appeal against him was abated. Against the said order of conviction and sentence, the appellant (A-1) has filed this appeal before this Court.
(3) Heard Mr. R.K. Kapoor, learned counsel for the appellant and Ms. Kiran Bala Sahay, learned counsel for the respondent-State.(4) The prosecution case, as narrated by Vikram Singh (PW-1) is that he had a land dispute with the accused for the past four or five years. The second accused i.e. Rattan Singh (A-2) filed an application for demarcation of the land in dispute before the ASO. It is not in dispute that on 29.04.1997, the ASO accompanied by Kanungo and Patwari had come to the spot for carrying out the demarcation of the said land. At that time, the Complainant, PW-1, his brother - Bachittar Singh (the deceased), his son Harnek Singh and all the four accused were present there. As soon as the ASO started for demarcation, A-1 and A-2 started abusing the complainant and his brother.
On seeing the wordy quarrel, the ASO left the scene of occurrence. Immediately after his departure, Jagat Singh (A1) and Rattan Singh (A2) took out their respective Gatras and the other two accused, namely, Parminder Singh(A3) and Balwant Singh (A4) gesticulated towards the complainant party with their fists. In the course of such event, Jagat Singh A-1 and Rattan Singh A-2 inflicted blows with their respective Gatras on the chest of the deceased. On seeing the deceased being stabbed, the complainant - (PW-1)stepped forward to save him. Rattan Singh (A-2) gave a blow to the complainant with his Gatra on the right side of his chest. Jagat Singh (A-1) also gave a blow with his Gatra on his right elbow. A-3 and A-4 gave fist blows to the deceased. On seeing him crying, his wife, Avtar Kaur, daughter, GurdeepKaur, daughter in law Sarbjit Kaur and complainant's son Harnek Singh (PW-3) reached the place of incident. On seeing these persons, all the accused ran away from the spot.
The deceased, who was bleeding profusely and the complainant were taken to District Hospital, Una at about 3.30 p.m. However, Bachittar Singh succumbed to the injuries suffered by him on way to the hospital. The complainant, after being given medical first aid was referred to Dayanand Medical College, Ludhiana. Thereafter, the matter was reported to the police by the complainant and on that basis, FIR was registered being FIR No. 243 of 1997 at Police Station, Una. After trial, by order dated 01.04.1998, the trial Court acquitted all the accused. In the appeal filed by the State, (A-1) alone was convicted, as (A-2) died during the pendency of the case and the appeal against (A-3) and (A-4) was dismissed.5) Before considering the case of the prosecution, as discussed by the trial Court and the High Court, it is useful to refer the stand of the appellant-Jagat Singh (A1) from his statement made under Section 313 of the Code of Criminal Procedure (hereinafter referred to as `the Code').
He stated that he was working in the field when the ASO accompanied by Kanungo and Patwari came to their village. His brother Rattan Singh (A-2) had filed an application in which he had complained against the members of the staff of the Settlement Department. The ASO enquired his brother Rattan Singh. When the ASO was enquiring his brother, Bachittar Singh (the deceased) and Vikram Singh (PW-1) came there and started using abusive language against them. On seeing the situation, the ASO along with his staff left the village, however Vikram Singh and Bachittar Singh did not leave the courtyard of one Sehdev Singh and they continued using abusive language against them for about 20 minutes. Thereafter, Bachittar Singh pounced upon Rattan Singh (A-2), Vikram Singh (PW-1) had pounced upon him. Though he wanted to run away he found himself overpowered.
Vikram Singh (PW-1)laid him down on the ground and started throttling him. He requested Vikram Singh to release him from his clutches but of no use. He continued throttling him. Since he is an asthma patient and realizing that Vikram Singh was not going to release him then he took out his gatra Ext.P-12 and tried to frighten him by showing it to him but he did not release him. When he apprehended that Vikram Singh may kill him, hegave a Gatra blow, firstly, on his shoulder then on his chest but he continued to throttle him. Then he inflicted some more blows on his person. After receiving the blows, his grip loosened on his neck and then he managed to get up and ranaway.
Though similar statements were made by other accused, there is no need to refer the same.6) We have to find out whether the act of the appellant along with the other accused was deliberate and pre-planned in order to do away the life of the deceased or the offences alleged to have been committed have arisen from a free fight which had erupted at the spur of the moment. It is also relevant to ascertain whether the accused exceeded their right of private defence. It is not in dispute that in the fight between the persons belonging to the complainant and the accused, Bachittar Singh lost his life. Vikram Singh (PW-1) sustained injuries on his chest. The offences alleged to have been committed are the result of the same sequence of events which took place on 29.04.1997 at 2.30 p.m., near the house of Sehdev Singh at Village Dehlan. There is no dispute that the accused Jagat Singh (A-1) had filed a suit for permanent injunction against Vikram Singh (PW-1), Bachittar Singh (the deceased) and Smt. Thakri widow of Dina Nath. The said suit was compromised to the effect that none of the parties shall raise any construction over the land measuring 4 Marlas comprising of Khasra No. 2857 till the same is partitioned. When the ASO came to the spot in order to rectify wrong settlement work as claimed by the parties, a heated wordy quarrel started which ended with loss of life of one person.
There is no controversy that during the course of fight, Bachittar Singh (the deceased) sustained injuries on account of which he died. The post-mortem examination of the dead body of the deceased was performed by Dr. R.S. Dadhwal(PW-15) and he opined that the deceased died due to shock resulting from massive hemorrhage and injuries on the vital organs. The doctor noticed six wounds on the person of the deceased, on the nose, below the tip of left shoulder, posterior, on the right of the midline of the chest, on the left side of the chest and on the interior to the left axilla on the mis axillary line. Apart from the above injuries of the deceased as well as PW1, it is also relevant to note that the appellant Jagat Singh(A-1) and his brother Rattan Singh (A-2) also sustained injuries in the same commotion. Dr. Mrs. S. Sharma (DW-1),medically examined all the four accused and copies of which are marked as Exs. DA to DD respectively. Here again, we are concerned with the injuries on the person of Jagat Singh-appellant alone. 1. There was a reddish brown small bruise of the size of 2 cms x 1 cm on the chest on the left side of the lower one third of sternum. 2. There was bluish bruise on the left hip of the size of 8 cm x 7 cm. 3. There was bluish bruise 10 cm x 1/3cms with intervening healthy area on the left side of the abdomen 5 cms above the left iliac crest.
3. He had complained of pain on the right fore-arm. The injured was referred for treatment of bronchial asthama."7) As rightly observed by the trial Judge, the perusal of the statement of PWs 1 and 3 and the doctors leave no scope for doubt that a free fight had taken place in which members of both sides got injured and one person succumbed to the injuries. We have already adverted to the statement recorded under Section 313 of the Code, more particularly, the statement of the appellant-Jagat Singh which have thrown light that in what manner the fight ensued and ended. We have already mentioned that from the evidence of prosecution side as well as the statement by the accused recorded under Section 313 of the Code, it is very much clear that a free fight had taken place.
It is also clear and as narrated by the accused under Section 313 of the Code that to save themselves, they stabbed the deceased and the complainant. Both A1 and A2 happened to be baptized Sikhs and as per religious necessity they have to carry Gatra on their persons and in order to save them from the clutches of the deceased and the complainant, free blows were exchanged through Gatras.
It is also seen from the evidence that the main blow on the chest of the deceased was caused by Rattan Singh who died pending appeal before the High Court. (A-3) and (A-4) were acquitted by the trial Court and the High Court dismissed the appeal against them. Considering the evidence of the doctor with regard to the injuries sustained by the deceased, the complainant (PW-1) as well as the appellant/accused and the evidence of (DW-1) who examined the accused, the trial Court has rightly observed that they had no requisite intention to kill the deceased as envisaged under Section 300. As discussed earlier, on account of meddling with the enquiry conducted by the ASO, both the parties sustained injuries out of which the deceased succumbed to the injuries.8) From the materials placed by the prosecution as well as the defence, taking note of the fact that the trial Court has acquitted (A-3) and (A-4) and (A-2) died during the pendency of the appeal before the High Court, considering the nature of the injuries sustained by the deceased as opined by Dr. R.S.Dadhwal, (PW-15), and the injuries sustained by the appellant(A-1) as explained by Dr. Mrs. S. Sharma (DW-1), we hold that at the most, the appellant could be held under Section 323IPC for causing hurt on the body of the deceased.
We are also of the view that there is no acceptable evidence to the fact that the appellant had voluntarily caused hurt on the person of the deceased. Considering all these events and taking note of the fact that the persons in both the groups, namely, complainant and the accused sustained injuries in a free fight and also of the fact that the appellant A1 alone is before us, we feel that the ends of justice would be met by altering the conviction from Section 302 to Section 323. It is brought to our notice that he had served about a year in prison (pending trial) and is in prison for approximately seven months after conviction by the High Court, aged about 82 years and also suffering from asthma and other old age ailments. Considering all these aspects, we feel that the period undergone is sufficient and he be released forthwith if he is not required in any other offence. The appeal is allowed to this extent.
................................................J. (HARJIT SINGH BEDI)
................................................J. (P. SATHASIVAM)
….............................................J. (CHANDRAMAULI KR. PRASAD)
NEW DELHI;
JANUARY 3, 2011
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State of Kerala vs Raneef
JUDGMENT
Markandey Katju, J.
1. Leave granted.
2. Heard learned counsel for the parties.
3. The appellant has filed this appeal challenging the impugned order of the Kerala High Court dated 17.9.2010 granting bail to the respondent, Dr. Raneef, who is a medical practitioner (dentist) in Ernakulam district in Kerala, and is accused in crime no.704 of 2010 of P.S. Muvattupuzha for offences under various provisions of the I.P.C., the Explosive Substances Act, and the Unlawful Activities (Prevention) Act.
4. The facts of the case are that on 4.7.2010 soon after 8 a.m. seven assailants came in a Maruti Van and assaulted Prof. T.J. Jacob of Newman College, Thodupuzha and chopped off his right palm from the vicinity of his house when he was returning home after Sunday mass. The role attributed to the respondent is that he treated one of the injured assailants (who was injured when Prof. Jacob's son tried to protect his father) by suturing(stitching) his wound on the back after applying local anesthesia at a place45 kms. away from the place of the incident.
5. The alleged motive for attacking Prof. Jacob was that he incorporated a question for the internal examination of B.Com. paper criticizing Prophet Mohammed and Islam.
6. The prosecution case is that the respondent gave medical aid to one of the wounded accused in pursuance of a previous plan that if and when any of the assailants got injured in the attack on Prof. Jacob then immediate medical treatment would be given by the respondent to the injured. The respondent stitched the back of an assailant, which is not the job of a dentist. The respondent, along with the other accused is a member of the Popular Front of India, a Muslim organization, and was head of its medical committee. Certain documents, C.D.s, mobile phone, books, etc. including a book called `Jihad' were allegedly seized from his house and car.
7. The prosecution has placed reliance on the proviso to Section 43D(5)of the Unlawful Activities (Prevention) Act, 1967 which states that the accused shall not be released on bail if the Court, on perusal of the case diary or the report under Section 173 Cr.P.C. is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
8. On the other hand, the case of the respondent as disclosed in the counter affidavit filed before us is that even according to the prosecution case the respondent was not one of the assailants, and he is not named in the FIR. In para 13 of the counter affidavit the respondent has stated that the attack on Prof. Jacob is a crime which is to be condemned. However, as a pretext to the investigation the police had lashed out are in of terror on innocent people of the minority community, people who are totally innocent or even had no knowledge of the crime have been falsely implicated. 54 persons have been made accused in the crime. Many residential houses, mosques and offices were raided and searched, and even minor children and women were cruelly tortured both physically and mentally. Holy books and other religious books were thrown out, seized and taken away and bundled in police stations. War like atmosphere was created in mosques, daily prayers were disrupted and men illegally detained, and physically tortured in custody and false cases booked against innocents.
9. It is further alleged in the counter affidavit that the Popular Front of India (PFI) or the Social Democratic Party of India (SDPI) are not militant or terrorist organizations. There is no history of crimes against the party or its workers. They are not banned organizations. The SDPI is a political party recognized by the Election Commission and the PFI is registered under the Societies Registration Act.
10. The respondent has alleged that he is a dental surgeon hailing from a respectable family in Aluva. His father Late Dr. Abdul Karim was a doctor loved and respected by all, who died as a Civil Surgeon while working in the Government Hospital, Perumbaroor. In 2001 the respondent started AlAmeen Multi-Specialty Dental Hospital in Aluva. Five other doctors including the respondent's wife, who is also a dental surgeon, are working in the said hospital. The respondent has a son aged 9 years and daughter aged 5 years. He claims that he has a very good reputation and is loved by all due to the services rendered by him to the poor and needy. The respondent's elder sister is a post graduate in zoology, and his younger sister is a law graduate. The book entitled `Jihad' said to have been found in his house was a Malayalam translation of a book written in Urdu in 1927 by a well known and respected religious scholar, Maulana Sayyid Abul Ala Mandoodi and has been in circulation for 83 years, and is available in many book shops.
11. The respondent has alleged that he has been falsely implicated only because he medically treated one of the alleged assailants.
12. At this stage we are not expressing any opinion as to whether the allegations in the versions of the prosecution or defence are correct or not, as evidence has yet to be led. However, we would like to make certain observations :
a. We are presently only considering the bail matter and are not deciding whether the respondent is guilty or not. Evidence has yet to be led and the trial yet to commence. Hence the prosecution is yet to establish by proof beyond reasonable doubt that the respondent was part of a conspiracy which led to the attack on Prof. Jacob.
b. The case against the respondent is very different from that against the alleged assailants. There is no allegation that the respondent was one of the assailants. We are of the opinion that at this stage there is no prima facie proof that the respondent was involved in the crime. Hence the proviso to Section 43D (5) has not been violated. The respondent, being a doctor, was under the Hippocratic oath to attempt to heal a patient. Just as it is the duty of a lawyer to defend an accused, so also it is the duty of a doctor to heal. Even a dentist can apply stitches in an emergency. Prima facie we are of the opinion that the only offence that can be leveled against the respondent is that under Section 202I.P.C., that is, of omitting to give information of the crime to the police, and this offence has also to be proved beyond reasonable doubt. Section 202 is a bailable offence.
c. As regards the allegation that the respondent belongs to the PFI, it is true that it has been held in Redaul Husain Khan vs. National Investigation Agency 2010 (1) SCC 521 that merely because an organization has not been declared as an `unlawful association' it cannot be said that the said organization could not have indulged in terrorist activities. However, in our opinion the said decision is distinguishable as in that case the accused was sending money to an extremist organization for purchasing arms and ammunition. That is not the allegation in the present case. The decision in State of Maharashtra vs. Dhanendra Shriram Bhurle 2009 (11) SCC 541 is also distinguishable because good reasons have been given in the present case by the High Court for granting bail to the respondent.
In the present case there is no evidence as yet to prove that the P.F.I.is a terrorist organization, and hence the respondent cannot be penalizedmerely for belonging to the P.F.I. Moreover, even assuming that the P.F.I. is an illegal organization, we have yet to consider whether all members of the organization can be automatically held to be guilty. In Scales vs. United States 367 U.S. 203 Mr. Justice Harlan of the U.S. Supreme Court while dealing with the membership clause in the McCarran Act, 1950 distinguished between active `knowing' membership and passive, merely nominal membership in a subversive organization, and observed :
"The clause does not make criminal all association with an organization which has been shown to engage in illegal activity. A person may be foolish, deluded, or perhaps mere optimistic, but he is not by this statute made a criminal. There must be clear proof that the defendant specifically intends to accomplish the aims of the organization by resort to violence." 8 In Elfbrandt vs. Russell 384 US 17-19 (1966) Justice Douglas of the U.S. Supreme Court speaking for the majority observed : "Those who join an organization but do not share its unlawful purpose and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. A law which applies to membership without the `specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of `guilt by association' which has no place here."
In Joint Anti-Fascist Refugee Committee vs. McGrath 341 US123 at 174 (1951) Mr. Justice Douglas of the U.S. Supreme Court observed: "In days of great tension when feelings run high, it is a temptation to take shortcuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within." We respectfully agree with the above decisions of the U.S. Supreme Court, and are of the opinion that they apply in our country too. We are living in a democracy, and the above observations apply to all democracies.
d. In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail.
13. In the present case the respondent has already spent 66 days in custody (as stated in paragraph 2 of his counter affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's novel `A Tale of Two Cities', who forgot his profession and even his name in the Bastille.14. With the above observations, this appeal is dismissed.
....................................J. (MARKANDEY KATJU)
.....................................J. (GYAN SUDHA MISRA)
NEW DELHI;
3RD JANUARY, 2011
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JUDGMENT
Markandey Katju, J.
1. Leave granted.
2. Heard learned counsel for the parties.
3. The appellant has filed this appeal challenging the impugned order of the Kerala High Court dated 17.9.2010 granting bail to the respondent, Dr. Raneef, who is a medical practitioner (dentist) in Ernakulam district in Kerala, and is accused in crime no.704 of 2010 of P.S. Muvattupuzha for offences under various provisions of the I.P.C., the Explosive Substances Act, and the Unlawful Activities (Prevention) Act.
4. The facts of the case are that on 4.7.2010 soon after 8 a.m. seven assailants came in a Maruti Van and assaulted Prof. T.J. Jacob of Newman College, Thodupuzha and chopped off his right palm from the vicinity of his house when he was returning home after Sunday mass. The role attributed to the respondent is that he treated one of the injured assailants (who was injured when Prof. Jacob's son tried to protect his father) by suturing(stitching) his wound on the back after applying local anesthesia at a place45 kms. away from the place of the incident.
5. The alleged motive for attacking Prof. Jacob was that he incorporated a question for the internal examination of B.Com. paper criticizing Prophet Mohammed and Islam.
6. The prosecution case is that the respondent gave medical aid to one of the wounded accused in pursuance of a previous plan that if and when any of the assailants got injured in the attack on Prof. Jacob then immediate medical treatment would be given by the respondent to the injured. The respondent stitched the back of an assailant, which is not the job of a dentist. The respondent, along with the other accused is a member of the Popular Front of India, a Muslim organization, and was head of its medical committee. Certain documents, C.D.s, mobile phone, books, etc. including a book called `Jihad' were allegedly seized from his house and car.
7. The prosecution has placed reliance on the proviso to Section 43D(5)of the Unlawful Activities (Prevention) Act, 1967 which states that the accused shall not be released on bail if the Court, on perusal of the case diary or the report under Section 173 Cr.P.C. is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
8. On the other hand, the case of the respondent as disclosed in the counter affidavit filed before us is that even according to the prosecution case the respondent was not one of the assailants, and he is not named in the FIR. In para 13 of the counter affidavit the respondent has stated that the attack on Prof. Jacob is a crime which is to be condemned. However, as a pretext to the investigation the police had lashed out are in of terror on innocent people of the minority community, people who are totally innocent or even had no knowledge of the crime have been falsely implicated. 54 persons have been made accused in the crime. Many residential houses, mosques and offices were raided and searched, and even minor children and women were cruelly tortured both physically and mentally. Holy books and other religious books were thrown out, seized and taken away and bundled in police stations. War like atmosphere was created in mosques, daily prayers were disrupted and men illegally detained, and physically tortured in custody and false cases booked against innocents.
9. It is further alleged in the counter affidavit that the Popular Front of India (PFI) or the Social Democratic Party of India (SDPI) are not militant or terrorist organizations. There is no history of crimes against the party or its workers. They are not banned organizations. The SDPI is a political party recognized by the Election Commission and the PFI is registered under the Societies Registration Act.
10. The respondent has alleged that he is a dental surgeon hailing from a respectable family in Aluva. His father Late Dr. Abdul Karim was a doctor loved and respected by all, who died as a Civil Surgeon while working in the Government Hospital, Perumbaroor. In 2001 the respondent started AlAmeen Multi-Specialty Dental Hospital in Aluva. Five other doctors including the respondent's wife, who is also a dental surgeon, are working in the said hospital. The respondent has a son aged 9 years and daughter aged 5 years. He claims that he has a very good reputation and is loved by all due to the services rendered by him to the poor and needy. The respondent's elder sister is a post graduate in zoology, and his younger sister is a law graduate. The book entitled `Jihad' said to have been found in his house was a Malayalam translation of a book written in Urdu in 1927 by a well known and respected religious scholar, Maulana Sayyid Abul Ala Mandoodi and has been in circulation for 83 years, and is available in many book shops.
11. The respondent has alleged that he has been falsely implicated only because he medically treated one of the alleged assailants.
12. At this stage we are not expressing any opinion as to whether the allegations in the versions of the prosecution or defence are correct or not, as evidence has yet to be led. However, we would like to make certain observations :
a. We are presently only considering the bail matter and are not deciding whether the respondent is guilty or not. Evidence has yet to be led and the trial yet to commence. Hence the prosecution is yet to establish by proof beyond reasonable doubt that the respondent was part of a conspiracy which led to the attack on Prof. Jacob.
b. The case against the respondent is very different from that against the alleged assailants. There is no allegation that the respondent was one of the assailants. We are of the opinion that at this stage there is no prima facie proof that the respondent was involved in the crime. Hence the proviso to Section 43D (5) has not been violated. The respondent, being a doctor, was under the Hippocratic oath to attempt to heal a patient. Just as it is the duty of a lawyer to defend an accused, so also it is the duty of a doctor to heal. Even a dentist can apply stitches in an emergency. Prima facie we are of the opinion that the only offence that can be leveled against the respondent is that under Section 202I.P.C., that is, of omitting to give information of the crime to the police, and this offence has also to be proved beyond reasonable doubt. Section 202 is a bailable offence.
c. As regards the allegation that the respondent belongs to the PFI, it is true that it has been held in Redaul Husain Khan vs. National Investigation Agency 2010 (1) SCC 521 that merely because an organization has not been declared as an `unlawful association' it cannot be said that the said organization could not have indulged in terrorist activities. However, in our opinion the said decision is distinguishable as in that case the accused was sending money to an extremist organization for purchasing arms and ammunition. That is not the allegation in the present case. The decision in State of Maharashtra vs. Dhanendra Shriram Bhurle 2009 (11) SCC 541 is also distinguishable because good reasons have been given in the present case by the High Court for granting bail to the respondent.
In the present case there is no evidence as yet to prove that the P.F.I.is a terrorist organization, and hence the respondent cannot be penalizedmerely for belonging to the P.F.I. Moreover, even assuming that the P.F.I. is an illegal organization, we have yet to consider whether all members of the organization can be automatically held to be guilty. In Scales vs. United States 367 U.S. 203 Mr. Justice Harlan of the U.S. Supreme Court while dealing with the membership clause in the McCarran Act, 1950 distinguished between active `knowing' membership and passive, merely nominal membership in a subversive organization, and observed :
"The clause does not make criminal all association with an organization which has been shown to engage in illegal activity. A person may be foolish, deluded, or perhaps mere optimistic, but he is not by this statute made a criminal. There must be clear proof that the defendant specifically intends to accomplish the aims of the organization by resort to violence." 8 In Elfbrandt vs. Russell 384 US 17-19 (1966) Justice Douglas of the U.S. Supreme Court speaking for the majority observed : "Those who join an organization but do not share its unlawful purpose and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. A law which applies to membership without the `specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms. It rests on the doctrine of `guilt by association' which has no place here."
In Joint Anti-Fascist Refugee Committee vs. McGrath 341 US123 at 174 (1951) Mr. Justice Douglas of the U.S. Supreme Court observed: "In days of great tension when feelings run high, it is a temptation to take shortcuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within." We respectfully agree with the above decisions of the U.S. Supreme Court, and are of the opinion that they apply in our country too. We are living in a democracy, and the above observations apply to all democracies.
d. In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail.
13. In the present case the respondent has already spent 66 days in custody (as stated in paragraph 2 of his counter affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's novel `A Tale of Two Cities', who forgot his profession and even his name in the Bastille.14. With the above observations, this appeal is dismissed.
....................................J. (MARKANDEY KATJU)
.....................................J. (GYAN SUDHA MISRA)
NEW DELHI;
3RD JANUARY, 2011
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304 Part II
Swaminathan & ANR. Vs. State of Tamil Nadu
OR D E R
At about 9.30 a.m. on the 5th April, 1994 A.1Ramasamy came to the wine shop of PW.3 Muthu Selvin and enquired if his uncle Velan was present in the wine shop. At that time Palanisamy deceased came riding a bicycle and dashed against A.1. The same evening at about 3.00 p.m. Palanisamy was going towards the field of Alagesan and as he was passing in front of the house of A.1., A.1 came out and shouted at him and thereafter lifted a stick and hit him on the head. A.2 Swaminathan and A.3 Raman who were standing close by picked up stones lying on the spot and hit the deceased on the cheek and forehead respectively. The incident was witnessed by PW.1 Narayanan.
He went and informed Ganesan, the brother of the deceased, and thereafter returned to the place of incident and found that Palanisamy was dead. He accordingly lodged the report at Police Station Theevattipatti, and case under Section 302was registered at about 4.30 p.m. The dead body was also subjected to a post mortem examination and nine injuries -2-were detected thereon, seven allegedly caused by a lathi and two by stones. The Doctor also opined that the death had been caused by a lathi injury and that the fatal injury was injury No.1.
The Trial Court relying on the evidence of PW.1 (Narayanan), the only eye-witness, convicted the accused A.1 under Section 304 Part II and sentenced him to undergo three years' rigorous imprisonment. A.2 and A.3were convicted and sentenced for the same offence and term with the aid of Section 34 of the IPC. An appeal was thereafter taken to the High Court which has confirmed the conviction and sentence awarded by the Trial Court.
The present appeal has been filed by A.2 and A.3alone. Mr. K.K. Mani, the learned counsel for the appellants has raised only one argument before us. He has urged that even accepting the prosecution story in its entirety the vicarious liability under Section 34 of the IPC could not be fastened on A.2 and A.3 as the facts did not indicate so.
He has pointed out that the incident had happened all of a sudden when Palanisami was passing by the house of A.1and there was absolutely no pre-planning and that he too had caused several blows after picking the lathi from the spot. It has also been submitted that the common intention on the part of A.2 and A.3 had also not made out as they had come to the spot by chance and there was no prior meeting of minds, and they had caused one simple injury each on the person of the deceased with stones picked up from the site. He has accordingly submitted that the conviction of the two appellants with the aid of Section 34 was not called for. We have heard the learned counsel for the parties and also gone through the evidence. Concededly, as per the post mortem report, injury No.1 on the person of the deceased was the fatal injury and had been caused by with a lathi.
There is also no reference whatsoever to any involvement of A.2 and A.3 in the incident in the morning. It appears that A.2 and A.3 who had been either passing by or were near the spot picked up stones on the spur of the moment and caused a simple injury each. It is therefore evident that A.2 and A.3 could not have had the knowledge of involvement of A.1 in a situation where death could be caused. We therefore feel that the conviction of A.2 and A.3 with the aid of Section 34 was not called for. We accordingly allow the appeal and order their acquittal. Their bail bonds shall stand cancelled.
.................J. (HARJIT SINGH BEDI)
..................J. (CHANDRAMAULI KR. PRASAD)
New Delhi,
January 12, 2011.
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OR D E R
At about 9.30 a.m. on the 5th April, 1994 A.1Ramasamy came to the wine shop of PW.3 Muthu Selvin and enquired if his uncle Velan was present in the wine shop. At that time Palanisamy deceased came riding a bicycle and dashed against A.1. The same evening at about 3.00 p.m. Palanisamy was going towards the field of Alagesan and as he was passing in front of the house of A.1., A.1 came out and shouted at him and thereafter lifted a stick and hit him on the head. A.2 Swaminathan and A.3 Raman who were standing close by picked up stones lying on the spot and hit the deceased on the cheek and forehead respectively. The incident was witnessed by PW.1 Narayanan.
He went and informed Ganesan, the brother of the deceased, and thereafter returned to the place of incident and found that Palanisamy was dead. He accordingly lodged the report at Police Station Theevattipatti, and case under Section 302was registered at about 4.30 p.m. The dead body was also subjected to a post mortem examination and nine injuries -2-were detected thereon, seven allegedly caused by a lathi and two by stones. The Doctor also opined that the death had been caused by a lathi injury and that the fatal injury was injury No.1.
The Trial Court relying on the evidence of PW.1 (Narayanan), the only eye-witness, convicted the accused A.1 under Section 304 Part II and sentenced him to undergo three years' rigorous imprisonment. A.2 and A.3were convicted and sentenced for the same offence and term with the aid of Section 34 of the IPC. An appeal was thereafter taken to the High Court which has confirmed the conviction and sentence awarded by the Trial Court.
The present appeal has been filed by A.2 and A.3alone. Mr. K.K. Mani, the learned counsel for the appellants has raised only one argument before us. He has urged that even accepting the prosecution story in its entirety the vicarious liability under Section 34 of the IPC could not be fastened on A.2 and A.3 as the facts did not indicate so.
He has pointed out that the incident had happened all of a sudden when Palanisami was passing by the house of A.1and there was absolutely no pre-planning and that he too had caused several blows after picking the lathi from the spot. It has also been submitted that the common intention on the part of A.2 and A.3 had also not made out as they had come to the spot by chance and there was no prior meeting of minds, and they had caused one simple injury each on the person of the deceased with stones picked up from the site. He has accordingly submitted that the conviction of the two appellants with the aid of Section 34 was not called for. We have heard the learned counsel for the parties and also gone through the evidence. Concededly, as per the post mortem report, injury No.1 on the person of the deceased was the fatal injury and had been caused by with a lathi.
There is also no reference whatsoever to any involvement of A.2 and A.3 in the incident in the morning. It appears that A.2 and A.3 who had been either passing by or were near the spot picked up stones on the spur of the moment and caused a simple injury each. It is therefore evident that A.2 and A.3 could not have had the knowledge of involvement of A.1 in a situation where death could be caused. We therefore feel that the conviction of A.2 and A.3 with the aid of Section 34 was not called for. We accordingly allow the appeal and order their acquittal. Their bail bonds shall stand cancelled.
.................J. (HARJIT SINGH BEDI)
..................J. (CHANDRAMAULI KR. PRASAD)
New Delhi,
January 12, 2011.
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Civil Appeal No.2897 of 2006
State of Punjab & Ors. Vs. Jagdish Kaur
State Of Punjab & ANR. Vs. Harjinder Singh
Aftab Alam,J.
1. These two appeals, at the instance of the State of Punjab and its officials, are directed against orders passed by the Punjab and Haryana High 2Court by which it knocked down the requirement of passing typing test in Punjabi at the speed of 30 words per minute (w.p.m.) as an eligibility criterion for promotion from class IV to class III posts in the State Government service.
2. Jagdish Kaur, the respondent in Civil Appeal No.2897 of 2006 was appointed as a Peon in the Government High School Vairwal, Tehsil Tarn Taran, District Amritsar, on February 21, 1978. Her appointment was made on compassionate grounds following her husband's death in harness on January 14, 1977. At the time of her appointment, she had passed matriculation examination in 3rd division. After joining the service, she passed the Senior Secondary School Examination from the Punjab School Education Board in 2nd division in the year 1992. According to her case, after passing the plus two examination, she became eligible for promotion to a class III post and she, accordingly, moved the concerned authorities for her promotion. However, getting no favourable response from them, she approached the Punjab and Haryana High Court in CWP No.11758 of 2003 seeking appropriate reliefs.
3. Harjinder Singh, respondent No.1, in Civil Appeal No.4134 of 2006, similarly joined as a Peon in the department of technical education on April 7, 1992. He was a matriculate at that time. According to his case, another person, namely, Baldev Singh, who was junior to him in class IV, was given promotion to a class III post in supersession of his claim. He too, therefore, moved the Punjab and Haryana High Court in CWP No.729 of 2004 seeking a direction to the concerned authorities to promote him to a class III post.
4. The writ petition filed by Jagdish Kaur was allowed by order passed by a Division Bench of the High Court on February 20, 2004. Later on the writ petition of Harjinder Singh came up before another Division Bench of the court and following the order passed in the case of Jagdish Kaur that too was allowed by order dated July, 1, 2005.
5. Following the order passed by the High Court, Harjinder Singh was given promotion and is working on a class III post since then. In the case of Jagdish Kaur, however, this Court stayed the operation of the impugned order of the High Court while issuing notice on April 18, 2005. As a result she continues to work on the class IV post.
6. Before the High Court, the case of the State was that the two writ petitioners (respondents in the two appeals before this Court) could only be considered for promotion in their turn on the basis of seniority. Moreover, they were not eligible for promotion from class IV to class III posts since they had not passed the typewriting test in Punjabi with the minimum speed of 30 w.p.m. The High Court did not take any objection to denial of promotion on the basis of seniority but went on to examine the requirement of passing the typing test in Punjabi as a condition for promotion to a class III post. It came to find that the condition of qualifying in typing test in Punjabi was illegal, arbitrary and unenforceable and, consequently, held and directed as follows:- "Accordingly, the instant petition is allowed.
The action of the authorities in requiring members of Class IV service to possess Punjabi typewriting test as a pre-condition for promotion to the post of Clerk is held to be illegal. The claim of the petitioner for promotion to the post of Clerk shall now be considered by re-determining her eligibility without insisting upon the earlier pre-condition having to pass the typewriting test in Punjabi. In case the petitioner is otherwise qualified, her claim shall be considered for promotion to the post of Clerk, without any further delay. If she is found suitable, she shall be promoted to the post of Clerk, with effect from the date, persons junior to her were promoted as such.
The aforesaid exercise be carried out and completed within three months from today."The finding of the High Court is primarily based on the provisions of the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994 (in short "1994 Rules").
The High Court observed that in the statutory rules, the requirement of qualifying the typewriting test in Punjabi with a minimum speed of 30 w.p.m. was for direct recruitment to a class III post but there was no such requirement for promotion from Class IV to class III posts. In this regard the High Court made the following observations:- "In the present case also, in the absence of any statutory provision to the contrary, the Punjab Civil Services (General & Common Conditions) Rules, 1994 (hereinafter referred to as the 1994 Rules), would be relevant to determine the controversy in hand.
Under the 1994 Rules, the rule making authority laid down the requirement of qualifying the typewriting test in Punjabi with a minimum speed of 30 words per minute within one year of the date of the direct recruitment. The 1994 Rules did not lay down such a pre-condition/stipulation for appointment by promotion to the post of Clerk. The inference that is liable to be drawn from the conditions delineated under the 1994 Rules, is that while qualifying the typewriting test in Punjabi is a condition for direct recruitment, it is not a pre-condition for promotion." (emphasis added)The High Court, then, proceeded to observe that in the absence of any provision in the statutory rules, no such requirement could be introduced through any Government Order. Hence, it held the stand of the State Government untenable and made the directions, as noted above.
7. To us it appears that the High Court was in error in making the 1994 Rules, the basis of its judgment. We have gone through the 1994 Rules. The rules framed under the proviso to Article 309 of the Constitution of India are exclusively in respect of the appointments, by direct recruitment, to class I, class II and class III services in the State Government. Rule 15 which is in two parts lays down the eligibility for appointment to the post of Clerk; sub-rule
(a) prescribes matriculation in second division or passing senior secondary part II examination from a recognized University as the minimum 6educational qualification and sub-rule
(b), as originally framed, made qualifying a test in Punjabi typewriting at the speed of 30 w.p.m. as the essential pre-requisite for appointment to a post of clerk in the Punjab Government. It may be noted that Rule 15 was amended by Notification dated June 23, 1999 and the amended rule reads as under. "15. Minimum educational qualification and other qualifications:- (1) No person shall be appointed by direct appointment to the post of a clerk under the Punjab Government unless he is matriculate in Second Division or has passed Senior Secondary Part III Examination from recognized university or institution. (2)
The person so appointed as Clerk in terms of sub-rule (1) shall have to qualify a test in Punjabi typewriting to be conducted by the Board or by the appointing authority at the speed of thirty words per minute within a period of one year from the date of his appointment. (3) In case the persons fails to qualify the said test within the period specified in sub-rule (2) he shall be allowed annual increment only with effect from the date he qualifies such test, but he shall not be paid any arrear for the period, for which he could not qualify the said test."
8. As a result of the amendment the qualification of typing that earlier used to be an essential requirement for appointment ceases to be a precondition and can now be acquired within a period of one year from the date of appointment failing which no annual increments would be allowed. It 7is, thus, clear that in case of direct recruitment to a class III post the qualification of typing in Punjabi as a requirement for appointment has been considerably relaxed.
9. The significant thing to note, however, is that the 1994 Rules do not deal with appointments to class IV posts and do not provide for promotion from class IV as a mode of recruitment to class III posts. Hence, there is no question of finding in the 1994 Rules any provision dealing with the eligibility criteria for promotion from class IV to class III posts. The High Court was, therefore, quite wrong in drawing the inference that while qualifying the typewriting test in Punjabi is a condition for direct recruitment, it was not a pre-condition for promotion.
10. Coming now to the issue of promotion from class IV to class III posts, the provision was first made in the Government Circular letter No.4/17/79-IPP/1973, dated August 24, 1983. Paragraphs (i) and (ii) of the circular letter read as follows:- "(i) There should be a provision for filling up 10% of Class III posts by promotion from amongst Class IV employees, who possess a minimum educational qualification of matriculation (with Punjabi) and have a minimum of 5 years' experience as such; (ii) There should be a provision for a qualifying test in Punjabi typewriting which should be equal to the one prescribed by the Subordinate Services Selection Board for such posts and it should be made essential to pass the test before a Class IV employee is considered eligible for promotion.
The test may be held by the appointing authority or any such authority to whom the powers for doing so are delegated by the appointing authority."The aforesaid Government Order was amended by Circular dated October 27, 1998. The later circular increased the quota for promotion from 10% to 15% but retained the qualification of Punjabi typewriting as prescribed in the earlier order. Paragraph 2 of the circular letter dated October 27, 1998, reads as follows:- "There should be provision for a qualified test of Punjabi typewriting which should be equal to the one prescribed by the S.S.S. Board for such posts and it should be made essential to pass the test before a Class IV employee is considered eligible for promotion. The test may be held by the appointing authority or any such authority to whom the powers for doing so are delegated by the appointing authority."
11. It is well-settled that in the absence of statutory rules on any subject, the relevant Government Orders would hold the field. [See: Sant Ram Sharma Vs State of Rajasthan & Anr., AIR 1967 SC 1910, Ashok Kumar Shrivastava & Ors. Vs. Ram Lal & Ors., (2008) 3 SCC 148, Shiba Shankar Mohapatra & Ors. Vs. State of Orissa & Ors. (2010) 12 SCC 471.]
12. In light of the above, the requirement of qualifying the test in Punjabi typewriting at the speed of 30 w.p.m. is manifestly a criterion for promotion from class IV to class III post. We are, therefore, clearly of the view that the orders passed by the High Court are untenable and we are constrained to set aside those orders.
13. Coming now to the specific cases of the two respondents, it is noted above that following the order passed by the High Court, Harjinder Singh was promoted to a class III post on which he is working since then. Jagdish Kaur, though, not promoted on account of the stay order passed by this Court, had the order of the High Court (though now set aside) in her favour for the past seven years. We, accordingly, direct that she too should be promoted to a class III post. However, the promotions given to Harjinder Singh and Jagdish Kaur would be subject to their qualifying in the typewriting test in Punjabi at the speed of 30 w.p.m. within one year from today in the case of Harjinder Singh and within one year from her promotion in the case of Jagdish Kaur, failing which they may be reverted back to their substantive posts in class IV.
14. Before parting with the records of the case, however, we must put in a caveat. It is seen above that in case of direct recruitment to a class III post the qualification of typing in Punjabi as a requirement has been greatly relaxed. It may be legally permissible for the State to have different standards for direct recruitment and for recruitment by promotion but in fairness the State would be well advised to review the criteria for promotion class IV to class III posts and to bring them at par with the requirements for direct recruitment to class III posts.
15. In the result, the appeals are allowed subject to the observations and directions made above.
..............................J. (Aftab Alam)
..............................J. (R.M. Lodha)
New Delhi;
August 26, 2011.
State Of Punjab & ANR. Vs. Harjinder Singh
Aftab Alam,J.
1. These two appeals, at the instance of the State of Punjab and its officials, are directed against orders passed by the Punjab and Haryana High 2Court by which it knocked down the requirement of passing typing test in Punjabi at the speed of 30 words per minute (w.p.m.) as an eligibility criterion for promotion from class IV to class III posts in the State Government service.
2. Jagdish Kaur, the respondent in Civil Appeal No.2897 of 2006 was appointed as a Peon in the Government High School Vairwal, Tehsil Tarn Taran, District Amritsar, on February 21, 1978. Her appointment was made on compassionate grounds following her husband's death in harness on January 14, 1977. At the time of her appointment, she had passed matriculation examination in 3rd division. After joining the service, she passed the Senior Secondary School Examination from the Punjab School Education Board in 2nd division in the year 1992. According to her case, after passing the plus two examination, she became eligible for promotion to a class III post and she, accordingly, moved the concerned authorities for her promotion. However, getting no favourable response from them, she approached the Punjab and Haryana High Court in CWP No.11758 of 2003 seeking appropriate reliefs.
3. Harjinder Singh, respondent No.1, in Civil Appeal No.4134 of 2006, similarly joined as a Peon in the department of technical education on April 7, 1992. He was a matriculate at that time. According to his case, another person, namely, Baldev Singh, who was junior to him in class IV, was given promotion to a class III post in supersession of his claim. He too, therefore, moved the Punjab and Haryana High Court in CWP No.729 of 2004 seeking a direction to the concerned authorities to promote him to a class III post.
4. The writ petition filed by Jagdish Kaur was allowed by order passed by a Division Bench of the High Court on February 20, 2004. Later on the writ petition of Harjinder Singh came up before another Division Bench of the court and following the order passed in the case of Jagdish Kaur that too was allowed by order dated July, 1, 2005.
5. Following the order passed by the High Court, Harjinder Singh was given promotion and is working on a class III post since then. In the case of Jagdish Kaur, however, this Court stayed the operation of the impugned order of the High Court while issuing notice on April 18, 2005. As a result she continues to work on the class IV post.
6. Before the High Court, the case of the State was that the two writ petitioners (respondents in the two appeals before this Court) could only be considered for promotion in their turn on the basis of seniority. Moreover, they were not eligible for promotion from class IV to class III posts since they had not passed the typewriting test in Punjabi with the minimum speed of 30 w.p.m. The High Court did not take any objection to denial of promotion on the basis of seniority but went on to examine the requirement of passing the typing test in Punjabi as a condition for promotion to a class III post. It came to find that the condition of qualifying in typing test in Punjabi was illegal, arbitrary and unenforceable and, consequently, held and directed as follows:- "Accordingly, the instant petition is allowed.
The action of the authorities in requiring members of Class IV service to possess Punjabi typewriting test as a pre-condition for promotion to the post of Clerk is held to be illegal. The claim of the petitioner for promotion to the post of Clerk shall now be considered by re-determining her eligibility without insisting upon the earlier pre-condition having to pass the typewriting test in Punjabi. In case the petitioner is otherwise qualified, her claim shall be considered for promotion to the post of Clerk, without any further delay. If she is found suitable, she shall be promoted to the post of Clerk, with effect from the date, persons junior to her were promoted as such.
The aforesaid exercise be carried out and completed within three months from today."The finding of the High Court is primarily based on the provisions of the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994 (in short "1994 Rules").
The High Court observed that in the statutory rules, the requirement of qualifying the typewriting test in Punjabi with a minimum speed of 30 w.p.m. was for direct recruitment to a class III post but there was no such requirement for promotion from Class IV to class III posts. In this regard the High Court made the following observations:- "In the present case also, in the absence of any statutory provision to the contrary, the Punjab Civil Services (General & Common Conditions) Rules, 1994 (hereinafter referred to as the 1994 Rules), would be relevant to determine the controversy in hand.
Under the 1994 Rules, the rule making authority laid down the requirement of qualifying the typewriting test in Punjabi with a minimum speed of 30 words per minute within one year of the date of the direct recruitment. The 1994 Rules did not lay down such a pre-condition/stipulation for appointment by promotion to the post of Clerk. The inference that is liable to be drawn from the conditions delineated under the 1994 Rules, is that while qualifying the typewriting test in Punjabi is a condition for direct recruitment, it is not a pre-condition for promotion." (emphasis added)The High Court, then, proceeded to observe that in the absence of any provision in the statutory rules, no such requirement could be introduced through any Government Order. Hence, it held the stand of the State Government untenable and made the directions, as noted above.
7. To us it appears that the High Court was in error in making the 1994 Rules, the basis of its judgment. We have gone through the 1994 Rules. The rules framed under the proviso to Article 309 of the Constitution of India are exclusively in respect of the appointments, by direct recruitment, to class I, class II and class III services in the State Government. Rule 15 which is in two parts lays down the eligibility for appointment to the post of Clerk; sub-rule
(a) prescribes matriculation in second division or passing senior secondary part II examination from a recognized University as the minimum 6educational qualification and sub-rule
(b), as originally framed, made qualifying a test in Punjabi typewriting at the speed of 30 w.p.m. as the essential pre-requisite for appointment to a post of clerk in the Punjab Government. It may be noted that Rule 15 was amended by Notification dated June 23, 1999 and the amended rule reads as under. "15. Minimum educational qualification and other qualifications:- (1) No person shall be appointed by direct appointment to the post of a clerk under the Punjab Government unless he is matriculate in Second Division or has passed Senior Secondary Part III Examination from recognized university or institution. (2)
The person so appointed as Clerk in terms of sub-rule (1) shall have to qualify a test in Punjabi typewriting to be conducted by the Board or by the appointing authority at the speed of thirty words per minute within a period of one year from the date of his appointment. (3) In case the persons fails to qualify the said test within the period specified in sub-rule (2) he shall be allowed annual increment only with effect from the date he qualifies such test, but he shall not be paid any arrear for the period, for which he could not qualify the said test."
8. As a result of the amendment the qualification of typing that earlier used to be an essential requirement for appointment ceases to be a precondition and can now be acquired within a period of one year from the date of appointment failing which no annual increments would be allowed. It 7is, thus, clear that in case of direct recruitment to a class III post the qualification of typing in Punjabi as a requirement for appointment has been considerably relaxed.
9. The significant thing to note, however, is that the 1994 Rules do not deal with appointments to class IV posts and do not provide for promotion from class IV as a mode of recruitment to class III posts. Hence, there is no question of finding in the 1994 Rules any provision dealing with the eligibility criteria for promotion from class IV to class III posts. The High Court was, therefore, quite wrong in drawing the inference that while qualifying the typewriting test in Punjabi is a condition for direct recruitment, it was not a pre-condition for promotion.
10. Coming now to the issue of promotion from class IV to class III posts, the provision was first made in the Government Circular letter No.4/17/79-IPP/1973, dated August 24, 1983. Paragraphs (i) and (ii) of the circular letter read as follows:- "(i) There should be a provision for filling up 10% of Class III posts by promotion from amongst Class IV employees, who possess a minimum educational qualification of matriculation (with Punjabi) and have a minimum of 5 years' experience as such; (ii) There should be a provision for a qualifying test in Punjabi typewriting which should be equal to the one prescribed by the Subordinate Services Selection Board for such posts and it should be made essential to pass the test before a Class IV employee is considered eligible for promotion.
The test may be held by the appointing authority or any such authority to whom the powers for doing so are delegated by the appointing authority."The aforesaid Government Order was amended by Circular dated October 27, 1998. The later circular increased the quota for promotion from 10% to 15% but retained the qualification of Punjabi typewriting as prescribed in the earlier order. Paragraph 2 of the circular letter dated October 27, 1998, reads as follows:- "There should be provision for a qualified test of Punjabi typewriting which should be equal to the one prescribed by the S.S.S. Board for such posts and it should be made essential to pass the test before a Class IV employee is considered eligible for promotion. The test may be held by the appointing authority or any such authority to whom the powers for doing so are delegated by the appointing authority."
11. It is well-settled that in the absence of statutory rules on any subject, the relevant Government Orders would hold the field. [See: Sant Ram Sharma Vs State of Rajasthan & Anr., AIR 1967 SC 1910, Ashok Kumar Shrivastava & Ors. Vs. Ram Lal & Ors., (2008) 3 SCC 148, Shiba Shankar Mohapatra & Ors. Vs. State of Orissa & Ors. (2010) 12 SCC 471.]
12. In light of the above, the requirement of qualifying the test in Punjabi typewriting at the speed of 30 w.p.m. is manifestly a criterion for promotion from class IV to class III post. We are, therefore, clearly of the view that the orders passed by the High Court are untenable and we are constrained to set aside those orders.
13. Coming now to the specific cases of the two respondents, it is noted above that following the order passed by the High Court, Harjinder Singh was promoted to a class III post on which he is working since then. Jagdish Kaur, though, not promoted on account of the stay order passed by this Court, had the order of the High Court (though now set aside) in her favour for the past seven years. We, accordingly, direct that she too should be promoted to a class III post. However, the promotions given to Harjinder Singh and Jagdish Kaur would be subject to their qualifying in the typewriting test in Punjabi at the speed of 30 w.p.m. within one year from today in the case of Harjinder Singh and within one year from her promotion in the case of Jagdish Kaur, failing which they may be reverted back to their substantive posts in class IV.
14. Before parting with the records of the case, however, we must put in a caveat. It is seen above that in case of direct recruitment to a class III post the qualification of typing in Punjabi as a requirement has been greatly relaxed. It may be legally permissible for the State to have different standards for direct recruitment and for recruitment by promotion but in fairness the State would be well advised to review the criteria for promotion class IV to class III posts and to bring them at par with the requirements for direct recruitment to class III posts.
15. In the result, the appeals are allowed subject to the observations and directions made above.
..............................J. (Aftab Alam)
..............................J. (R.M. Lodha)
New Delhi;
August 26, 2011.
Monday, August 29, 2011
SUPREME COURT LATEST CASE LAWS
Rajinder Vs. State of Delhi (NCT) & ANR.
HARJIT SINGH BEDI, J.
This appeal arises out of the following facts:
1. At about 3 p.m. on 25th of August 1993, Murari Lal PW-1 along with his wife Saroj had gone to the crockery shop of his brothers Gobind and Ashok PW-5 bearing No.2649, Shadipur Main Bazar. He parked his scooter near the shop and then asked his uncle Jagdish, who was present at his shop very close by, as to why his sons had abused Saroj. This enquiry annoyed Jagdish and he picked up a lathi and attempted to assault Saroj. Murari Lal thereupon intervened to save his wife but in the meantime Rajinder and Dharambir, sons of Jagdish, came rushing to that place carrying a scissor and a knife respectively. Dharambir thereupon gave knife blows to Murari Lal in the abdomen whereafter he fell down on the ground. Gobind raised an alarm and tried to save Murari Lal from further injury. Rajinder and Dharambir, however, attacked Gobind with their weapons and on receiving the injuries he too fell on the ground. This incident was seen by PW-2 Anil Kumar, PW-3 Saroj Bala and PW-5 Ashok Kumar. Gobind and Murari were immediately removed to the Ram Manohar Lohia Hospital.
It appears that information was received in Police Station Patel Nagar about a quarrel having taken place in Shop No.2666 in the Shadipur Main Market. This information was recorded in the daily diary register on which Sub-Inspector Shiv Kumar along with other police officials reached the place of incident and found that the injured had already been removed to the hospital. The Sub-Inspector thereupon went to the hospital and collected the medio-legal report with respect to the injuries of Murari Lal and also the information that Gobind had been brought dead to the hospital.
The Sub-Inspector also made an enquiry as to the fitness of Murari Lal and after the doctor had certified as to his fitness, his statement was recorded and on its basis the FIR was duly registered. In the FIR it was mentioned that the complainant and the accused parties were very closely related and had shared a common business at one time, but they had fallen out in a very nasty manner at a later stage. On the completion of the investigation, a charge sheet was filed against Jagdish and his sons Dharambir and Rajinder for offences punishable under Sections 302/34 and 307/34 of the IPC and they were duly charged under those provisions and were brought to trial.
2. The prosecution relied on the evidence of Murari Lal, Anil Kumar, Saroj and Ashok Kumar the eye witnesses to the incident, as also on the medical evidence. In their statements recorded under Section 313 of the Cr.P.C. the accused pleaded their innocence and denied all the allegations leveled against them. Rajinder claimed that he was in the house of his in -laws with his wife as it was the day of Rakhi whereas Dharambir claimed that he was at a Patel Nagar Park with some students in connection with their studies. No defence evidence was however led by the accused in support of their pleas of alibi. Jagdish took the plea that in fact PW-1 Murari Lal and the deceased had dragged him from his shop due to which he had sustained injuries and his shirt had got blood stained on that account and that he had been saved from further harm by the crowd that had collected at the site and that the injuries suffered by PW Murari Lal and the deceased may have been caused by someone from that crowd.
3. The trial court in its judgment dated 30th May 1994 held that the prosecution story had been proved beyond doubt in the light of the eye witness account, the medical evidence as well as the fact that the first information report had been lodged within a very short time. It was found that in the light of the doctor's evidence the injuries could have been caused by the scissor and the knife that Dharambir and Rajinder were said to be carrying and as the death was clearly homicidal, the involvement of all the three accused was spelt out beyond doubt, more particularly as no evidence had been produced by the accused to prove their explicit defence.
It was also observed that Jagdish had not been subjected to a medical examination and there was no evidence of any injury to him whereas the plea of alibi had not been supported by any witness and had remained confined only to the statements under Section 313 of the Cr.P.C. of the two accused Dharambir and Rajinder. The trial court accordingly convicted the accused for the offences charged and awarded a sentence of life imprisonment for the offence of murder and also 7 years RI on the charge of attempt to murder; both the sentences to run concurrently. The matter was thereafter taken in appeal to the High Court and the High Court, while confirming the conviction and sentence of Dharambir and Rajinder, has allowed the appeal of Jagdish holding that though his presence had been proved yet he did not share the common intention with his co-accused as he had allegedly picked up a lathi from the spot, but had not used it. Jagdish was accordingly acquitted. The present appeal has been filed by Dharambir and Rajinder alone.
4. Mr. R.S. Sodhi, the learned senior counsel for the appellants has raised two primary submissions before us. He has first submitted that it appeared that the place of incident had been changed inasmuch that the accused had been charged for having committed the murder outside shop No. 2649 which belonged to the accused party whereas the finding of the court was that the incident had taken place outside shop No. 2666 which belonged to the complainant party and this taken with the fact that the injuries on the person of Jagdish had not been explained by the prosecution, the entire prosecution story appeared to be a concoction. He has also submitted that Rajinder who had been armed with a pair of scissors had apparently caused no injury to the deceased as the medical evidence did not support the story and as such his case was on the same footing as Jagdish who had been acquitted.
5. The learned counsel for the State of Delhi has, however, supported the judgments of the courts below.
6. We have heard the learned counsel for the parties and considered the submissions very carefully. It is true that in the charge framed against the three accused on the 12th of February 1992, the allegation was that the murder had been committed in Shop No.2649, Main Bazar Shadipur. The charge aforesaid had its basis in the scaled plan Ex.PW9/A prepared by PW-9 Inspector Devinder Singh, Draftsman, Crime Branch, Delhi on the pointing out of PWs. Anil Kumar, Ashok and Saroj. The Inspector also deposed that the scaled plan was 2 cm. to 1 mtr.
The aforesaid eye witnesses, however (one of them Murari Lal being injured) have been very categoric that the incident had taken place in the shop of Jagdish which was Shop No.2666 where Murari Lal had gone along with his wife to remonstrate as to why he was abusing the ladies of the family. It appears, however, from the evidence, and it has been so found by the trial court and the High Court, that the defence could not take advantage of this apparent discordance as no question was put to them on this score in their cross-examination.
It is significant that no question was even put to Sub-Inspector Shiv Kumar who had sent the Ruqa that the incident had taken place outside Shop No.2649 whereas the eye witnesses' account was that it had happened outside Shop No.2666. We are of the opinion that this omission was not an oversight and even the facts show that no advantage can be taken by the defence on account of the conflicting addresses. A perusal of the scaled plan Ex.PW9/A along with the statement of PW-9 Inspector Devinder Singh would reveal that the distance between Shop No.2649 and 2666 was only 10 to 12 feet in a very crowded market and in this view of the matter the incident had taken place virtually in between both the shops. As a corollary to the above, the plea of the defence that the injuries to Jagdish (since acquitted) had not been explained by the prosecution really destroys the substratum of the defence version.
In his statement recorded under Section 313 of the Cr.P.C. Jagdish had stated that he had been dragged by the complainant party from his shop to Shop No.2649 and injuries had been caused to him by Murari Lal and others and that he had been saved by the crowd that had collected at that site and that the injuries to Murari Lal and the deceased had been caused by someone from that crowd. Admittedly, no evidence to that effect has been produced by the defence and save for the ipse dixit of Jagdish, there is no basis for this story.
Undoubtedly, PW-18 G.L. Mehta, the Investigating Officer admitted in his cross-examination that in the case diary, there was a reference to some injuries having been suffered by Jagdish and that his medical examination had been carried out. It is significant however that Jagdish had not claimed at the initial stage that he had received any injury much less a serious one at the hands of the deceased or Murari Lal or even during the various occasions when he had been produced before the Magistrates' Court for remand or other purposes. We are, therefore, of the opinion that the first argument raised by Mr. Sodhi has no merit.
7. We have also examined his second argument with respect to the role attributed to Rajinder who is alleged to have been armed with a pair of scissors. For this argument Mr. Sodhi has placed reliance on the statement of PW-11 Dr. Tarun Gupta, the emergency doctor and PW-12 Dr. L.K.Birwah, who had conducted the autopsy on the dead body. Dr. Gupta in the MLC Ex.PW11/B observed that Gobind had been brought dead to the hospital and that the dead body had three lacerated wounds on the left angle of the chest wall but when cross-examined, he was unable to say whether the wounds had been caused by one or more weapons or as to the kind of the weapon that had been used. Dr. L.K.Birwah too found three incised wounds on the dead body. They are re-produced herein below:
1. One vertically placed incised wound on left angle of chest of size 2.3 x 1.2 cm into querry deep. This injury was 12 cm below the left anterior axillary fold.
2. One incised wound 4 cm. lateral and posterior to the injury No.1 and 10 cm below the posterior axillary fold placed almost vertically of size 2.6 cm x 1.5 cm into querry; both the angles of the wound were acutely cut.
3. One incised wound on the back of left arm just below the posterior axillary fold placed obliquely vertical the lateral margin of the wound showed one small projection whereas the medical border showed slight bewelling of size 4 cm x 1.5 cm into querry. After exploration of this injury it had two bifurcated cuts at a distance of approximately 1 cm."
The underlined portion would indicate that as this injury had two bifurcated cuts, it could have been caused with a pair of scissors as the blades opened up in the course of their travel through the body. In his cross-examination, the doctor was categoric that the injuries had been caused by a sharp weapon which could be single edged or double edged, but he admitted that he could not say with certainty if they had been caused by one weapon or more than one weapon. It is also significant that PW-3 Saroj deposed that Rajinder had stabbed Gobind on the left back side of the shoulder and he had been holding the scissor by its two handles and had stabbed the deceased with the cutting portion. We are, therefore, of the opinion that this argument too lacks merit. We, accordingly, dismiss the appeal.
..........................................J. (Harjit Singh Bedi)
.........................................J. (Gyan Sudha Misra)
New Delhi,Dated:
August 12, 2011
HARJIT SINGH BEDI, J.
This appeal arises out of the following facts:
1. At about 3 p.m. on 25th of August 1993, Murari Lal PW-1 along with his wife Saroj had gone to the crockery shop of his brothers Gobind and Ashok PW-5 bearing No.2649, Shadipur Main Bazar. He parked his scooter near the shop and then asked his uncle Jagdish, who was present at his shop very close by, as to why his sons had abused Saroj. This enquiry annoyed Jagdish and he picked up a lathi and attempted to assault Saroj. Murari Lal thereupon intervened to save his wife but in the meantime Rajinder and Dharambir, sons of Jagdish, came rushing to that place carrying a scissor and a knife respectively. Dharambir thereupon gave knife blows to Murari Lal in the abdomen whereafter he fell down on the ground. Gobind raised an alarm and tried to save Murari Lal from further injury. Rajinder and Dharambir, however, attacked Gobind with their weapons and on receiving the injuries he too fell on the ground. This incident was seen by PW-2 Anil Kumar, PW-3 Saroj Bala and PW-5 Ashok Kumar. Gobind and Murari were immediately removed to the Ram Manohar Lohia Hospital.
It appears that information was received in Police Station Patel Nagar about a quarrel having taken place in Shop No.2666 in the Shadipur Main Market. This information was recorded in the daily diary register on which Sub-Inspector Shiv Kumar along with other police officials reached the place of incident and found that the injured had already been removed to the hospital. The Sub-Inspector thereupon went to the hospital and collected the medio-legal report with respect to the injuries of Murari Lal and also the information that Gobind had been brought dead to the hospital.
The Sub-Inspector also made an enquiry as to the fitness of Murari Lal and after the doctor had certified as to his fitness, his statement was recorded and on its basis the FIR was duly registered. In the FIR it was mentioned that the complainant and the accused parties were very closely related and had shared a common business at one time, but they had fallen out in a very nasty manner at a later stage. On the completion of the investigation, a charge sheet was filed against Jagdish and his sons Dharambir and Rajinder for offences punishable under Sections 302/34 and 307/34 of the IPC and they were duly charged under those provisions and were brought to trial.
2. The prosecution relied on the evidence of Murari Lal, Anil Kumar, Saroj and Ashok Kumar the eye witnesses to the incident, as also on the medical evidence. In their statements recorded under Section 313 of the Cr.P.C. the accused pleaded their innocence and denied all the allegations leveled against them. Rajinder claimed that he was in the house of his in -laws with his wife as it was the day of Rakhi whereas Dharambir claimed that he was at a Patel Nagar Park with some students in connection with their studies. No defence evidence was however led by the accused in support of their pleas of alibi. Jagdish took the plea that in fact PW-1 Murari Lal and the deceased had dragged him from his shop due to which he had sustained injuries and his shirt had got blood stained on that account and that he had been saved from further harm by the crowd that had collected at the site and that the injuries suffered by PW Murari Lal and the deceased may have been caused by someone from that crowd.
3. The trial court in its judgment dated 30th May 1994 held that the prosecution story had been proved beyond doubt in the light of the eye witness account, the medical evidence as well as the fact that the first information report had been lodged within a very short time. It was found that in the light of the doctor's evidence the injuries could have been caused by the scissor and the knife that Dharambir and Rajinder were said to be carrying and as the death was clearly homicidal, the involvement of all the three accused was spelt out beyond doubt, more particularly as no evidence had been produced by the accused to prove their explicit defence.
It was also observed that Jagdish had not been subjected to a medical examination and there was no evidence of any injury to him whereas the plea of alibi had not been supported by any witness and had remained confined only to the statements under Section 313 of the Cr.P.C. of the two accused Dharambir and Rajinder. The trial court accordingly convicted the accused for the offences charged and awarded a sentence of life imprisonment for the offence of murder and also 7 years RI on the charge of attempt to murder; both the sentences to run concurrently. The matter was thereafter taken in appeal to the High Court and the High Court, while confirming the conviction and sentence of Dharambir and Rajinder, has allowed the appeal of Jagdish holding that though his presence had been proved yet he did not share the common intention with his co-accused as he had allegedly picked up a lathi from the spot, but had not used it. Jagdish was accordingly acquitted. The present appeal has been filed by Dharambir and Rajinder alone.
4. Mr. R.S. Sodhi, the learned senior counsel for the appellants has raised two primary submissions before us. He has first submitted that it appeared that the place of incident had been changed inasmuch that the accused had been charged for having committed the murder outside shop No. 2649 which belonged to the accused party whereas the finding of the court was that the incident had taken place outside shop No. 2666 which belonged to the complainant party and this taken with the fact that the injuries on the person of Jagdish had not been explained by the prosecution, the entire prosecution story appeared to be a concoction. He has also submitted that Rajinder who had been armed with a pair of scissors had apparently caused no injury to the deceased as the medical evidence did not support the story and as such his case was on the same footing as Jagdish who had been acquitted.
5. The learned counsel for the State of Delhi has, however, supported the judgments of the courts below.
6. We have heard the learned counsel for the parties and considered the submissions very carefully. It is true that in the charge framed against the three accused on the 12th of February 1992, the allegation was that the murder had been committed in Shop No.2649, Main Bazar Shadipur. The charge aforesaid had its basis in the scaled plan Ex.PW9/A prepared by PW-9 Inspector Devinder Singh, Draftsman, Crime Branch, Delhi on the pointing out of PWs. Anil Kumar, Ashok and Saroj. The Inspector also deposed that the scaled plan was 2 cm. to 1 mtr.
The aforesaid eye witnesses, however (one of them Murari Lal being injured) have been very categoric that the incident had taken place in the shop of Jagdish which was Shop No.2666 where Murari Lal had gone along with his wife to remonstrate as to why he was abusing the ladies of the family. It appears, however, from the evidence, and it has been so found by the trial court and the High Court, that the defence could not take advantage of this apparent discordance as no question was put to them on this score in their cross-examination.
It is significant that no question was even put to Sub-Inspector Shiv Kumar who had sent the Ruqa that the incident had taken place outside Shop No.2649 whereas the eye witnesses' account was that it had happened outside Shop No.2666. We are of the opinion that this omission was not an oversight and even the facts show that no advantage can be taken by the defence on account of the conflicting addresses. A perusal of the scaled plan Ex.PW9/A along with the statement of PW-9 Inspector Devinder Singh would reveal that the distance between Shop No.2649 and 2666 was only 10 to 12 feet in a very crowded market and in this view of the matter the incident had taken place virtually in between both the shops. As a corollary to the above, the plea of the defence that the injuries to Jagdish (since acquitted) had not been explained by the prosecution really destroys the substratum of the defence version.
In his statement recorded under Section 313 of the Cr.P.C. Jagdish had stated that he had been dragged by the complainant party from his shop to Shop No.2649 and injuries had been caused to him by Murari Lal and others and that he had been saved by the crowd that had collected at that site and that the injuries to Murari Lal and the deceased had been caused by someone from that crowd. Admittedly, no evidence to that effect has been produced by the defence and save for the ipse dixit of Jagdish, there is no basis for this story.
Undoubtedly, PW-18 G.L. Mehta, the Investigating Officer admitted in his cross-examination that in the case diary, there was a reference to some injuries having been suffered by Jagdish and that his medical examination had been carried out. It is significant however that Jagdish had not claimed at the initial stage that he had received any injury much less a serious one at the hands of the deceased or Murari Lal or even during the various occasions when he had been produced before the Magistrates' Court for remand or other purposes. We are, therefore, of the opinion that the first argument raised by Mr. Sodhi has no merit.
7. We have also examined his second argument with respect to the role attributed to Rajinder who is alleged to have been armed with a pair of scissors. For this argument Mr. Sodhi has placed reliance on the statement of PW-11 Dr. Tarun Gupta, the emergency doctor and PW-12 Dr. L.K.Birwah, who had conducted the autopsy on the dead body. Dr. Gupta in the MLC Ex.PW11/B observed that Gobind had been brought dead to the hospital and that the dead body had three lacerated wounds on the left angle of the chest wall but when cross-examined, he was unable to say whether the wounds had been caused by one or more weapons or as to the kind of the weapon that had been used. Dr. L.K.Birwah too found three incised wounds on the dead body. They are re-produced herein below:
1. One vertically placed incised wound on left angle of chest of size 2.3 x 1.2 cm into querry deep. This injury was 12 cm below the left anterior axillary fold.
2. One incised wound 4 cm. lateral and posterior to the injury No.1 and 10 cm below the posterior axillary fold placed almost vertically of size 2.6 cm x 1.5 cm into querry; both the angles of the wound were acutely cut.
3. One incised wound on the back of left arm just below the posterior axillary fold placed obliquely vertical the lateral margin of the wound showed one small projection whereas the medical border showed slight bewelling of size 4 cm x 1.5 cm into querry. After exploration of this injury it had two bifurcated cuts at a distance of approximately 1 cm."
The underlined portion would indicate that as this injury had two bifurcated cuts, it could have been caused with a pair of scissors as the blades opened up in the course of their travel through the body. In his cross-examination, the doctor was categoric that the injuries had been caused by a sharp weapon which could be single edged or double edged, but he admitted that he could not say with certainty if they had been caused by one weapon or more than one weapon. It is also significant that PW-3 Saroj deposed that Rajinder had stabbed Gobind on the left back side of the shoulder and he had been holding the scissor by its two handles and had stabbed the deceased with the cutting portion. We are, therefore, of the opinion that this argument too lacks merit. We, accordingly, dismiss the appeal.
..........................................J. (Harjit Singh Bedi)
.........................................J. (Gyan Sudha Misra)
New Delhi,Dated:
August 12, 2011
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