DATE OF JUDGMENT: 02/03/1998

BENCH: M.K. MUKHERJEE, S.P. KURDUKAR, K.T. THOMAS

J U D G M E N T

M.K. MUKHERJEE, J

Leave granted.

On May, 3, 1991 the Central Bureau of Investigation (CBI), New Delhi, searched the premises of J.K. Jain at G-36 Saket, New Delhi to work out an information received while investigating RC Case No. 5(S)/91 SIU (B)/CBI/New Delhi. In course of the search they recovered, besides other articles and documents, two diaries, two small note books and two files containing details of receipts of various amounts from different sources recorded in abbreviated forms of ditties and initials and details of payments to various persons recorded in similar fashion. Preliminary investigation taken up by the Cbi to decode and comprehend those entries revealed payments amounting to Rs. 65.47 crores, out of which 53.5 crores had been illegally transferred from abroad through hawala channels, during the years 1988 to 1991 to 115 persons including politicians, some of whom were members of either Houses of parliament during the relevant period, officials of government and Public Sector Undertakings, and friends of S.K. Jain, B. R. Jain, and N.K. Jain, who are three brothers carrying on different businesses. It further revealed that the Jain brothers and J. K. Jain, who is their employee, had acted as middlemen in the award of certain big projects in the power sector of the Government of India to different bidders; that they had official dealings with politicians and public servants whose names were recorded in the diaries and the files; and that some of them had accepted illegal gratification other than legal remuneration from jains as a reward for giving them and the companies they own and manage various contracts. On such revelation the CBI registered a case on march 4, 1995 under Sections 7 and 12 of the prevention of Corruption Act, 1988 and Section 56 read with Section 8(1) of the Foreign Exchange Regulation Act, 1973 against the Jains, some public servants and others being RC No. 1(A)/95 ACU (VI) and on completion of investigation filed 34 charge-sheets (challans) in the Court of the Special Judge, New Delhi against various politicians, Government servants and jains. In one of the above charge- sheets (C.S. No. 4 dated 16.1.1996) Shri Lal Krishna Advani, who at the material time was a member of the parliament, and the jains figure as accused and the another (C. S. No. 8 dated 23.1.1996), Shri V. C. Shukla, also a member of parliament, along with the Jains.

The common allegations made in the above two charge- sheets (from which these appeals stem) are that during the years 1988 to 1991 jains entered into a criminal conspiracy among themselves, the object of which was to receive unaccounted money and to disburse the same to their companies, friends, close relatives and other persons including public servants and political leaders of India. In pursuance of the said conspiracy S.K. Jain lobbied with various public servants and Government organisations in the power and steel sectors of the Government of India to persuade them to award contracts to different foreign bidders with the motive of getting illegal kickbacks from them. During the aforesaid period the jain brothers received Rs. 59,12, 11, 685/-, major portion of which came from foreign countries through hawala channels as kickbacks from the foreign bidders of certain projects of power sector undertakings and the balance from within the country. An account of receipts and disbursements of the monies was maintained by J.K. Jain in the diaries and files recovered from his house and jain brothers authenticated the same.

As against Shri Advani the specific allegation in the charge-sheet in which he and jains figure as accused) is that he received a sum of Rs. 25 lacs from jains during his tenure as a member of the parliament, (besides a sm of Rs. 35 lacs which was received by him while he was not a member of the parliament). In the other charge-sheet filed against Shri Shukla and Jains) it is alleged that during the period 1988 to 1991, while shri Shukla was a member of the parliament and for some time a Cabinet Minister of the Central Government he received Rs. 39 lacs (approximately) from Jains.

According to CBI the materials collected during investigation clearly disclosed that jains were in the habit of making payments to influential public servants and political leaders of high status expecting official favours from them and the above payments were made to Shri Shukla and Shri Advani with that oblique motive. Thereby, the Cbi averred, the above persons (the respondents in these appeals) committed offences under Section 120B I.B.C. and Section 13(2) read with Section 13(1) (d), 7 & 12 of the prevention of Corruption Act, 1988.

The special judge took cognisance upon the above two charge-sheets and issued processes against the respondents. After entering appearance they agitated various grounds (to which we will refer at the appropriate stage) to contend that there was no material whatsoever to frame charges against them. The Special Judge, however, the rejected all those contentions and passed separate orders deciding to frame charges and try the respondents. Pursuant to the order passed in Case No. 15 of 1996 (arising out of C.S. No. 8 dated 23.1.1996) the following charges were framed against Shri Shukla:-

” Firstly, that you, V. C. Shukla , during the period from Feb. 90 to Jan. 91 at Delhi agreed with other co-accused S.K. Jain, N.K. Jain, B. R. Jain, and J. K. Jain to do an illegal act, to wit, to obtain pecuniary advantage from the said Jains by abusing your official position as a public servant being Member of Parliament during the said period and also be Minister of External Affairs from 21.11.90 to Jan. 91 and in pursuance of the said agreement, you obtained the pecuniary advantage and accepted Rs. 38, 85,834/- as gratification other than legal remuneration from the said Jains for a general favour to them from you and you, thereby, committed an offence punishable U/s 120 -B IC r/w Sec. 7, 12 and 13(2) r/w 13(1)(d) of the prevention of Corruption Act, 1988 and within the cognizance of this Court.

Secondly, that you during the aforesaid period at the aforesaid place in or aforesaid period at the aforesaid place in your aforesaid capacity being a public servant, accepted a sum of Rs. 38,85,834 from the above said co-accused persons, namely S.K. Jain, N.K. Jain, B. R. Jain and J. K. Jain as gratification other than legal remuneration for showing general favour to them and you, thereby, committed an offence punishable U/s 7 of the prevention of Corruption Act, 1988 and within the cognizance of this Court.

Thirdly, that you during the aforesaid period and at the aforesaid place, in your aforesaid capacity being a public servant obtained pecuniary advantage amounting to Rs. 38,85,834/- from the co-accused persons namely, S.K. Jain, B. R. Jain, N.K. Jain and J.K. Jain by abusing your position as a public servant and also without any public interest and you, thereby committed an offence punishable U/S 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 and within the cognizance of this Court.

The charges framed against S.K. Jain, in that case read as under:

” Firstly, that you, S.K. Jain, during the period from Feb. 90 to Jan. 91 at Delhi, agreed with other co-accused V.C. Shukla, N. K. Jain, B. R. Jain and J. K. Jain to do an illegal act, to wit, to make payment of Rs. 38,85,834/- to said Sh. V. C. Shukla, as a gratification other than legal remuneration as a motive or reward for getting general favour from said V. C. Shukla who was holding the post of a member of parliament during the said period and also was Minister for External Affairs during the period from 21.11.90 to Jan. 91 and in pursuance of the said agreement, the pecuniary advantage was obtained by said V. C. Shukla by abusing his official position and without any public interest and the payment was made by you as, aforesaid, gratification an you, thereby, committed an offence punishable U/s 120-b IPC r/w Sec. 7, 12, 13(2) r/w 13(1)(d) of the prevention of Corruption Act, 1988 and within the cognizance of this Court.

Secondly, that you, S.K. Jain during the aforesaid period and at the aforesaid place abetted the commission of offence punishable U/S 7 of the P. C. Act, 1988 by offering bribe of Rs. 38,85834 to said V. C. Shukla, who was a public servant during the relevant period as a member of parliament and also as a minister of External Affairs during the period from 21.11.90 to Jan. 91 for getting general favour from him and you, thereby committed an offence punishable u/s 12 of the Prevention of Corruption Act, 1988 and within the cognizance of this Court.”

Similar charges were also framed against the other Jains.

In the other case (c.c. No. 17 of 1996), in which Shri Advani figure as an accused with Jains no formal charge was framed (as by then the respondents had moved the High Court), but the special Judge decided to frame charges against them in similar lines as would be evident from the order dated September 6, 1996, the relevant portion of which reads as under:

” So, after going through the entire material available on record, i.e. charge-sheet statements of the witnesses recorded U/s 161 Cr.P.C., documents placed on record prima facie, it cannot be said that the allegations made against all these accused are groundless or that there is no sufficient ground for proceeding against all the accused. Prima facie, it is clear that there are sufficient grounds for framing of charges against all these accused. Accordingly, I hereby order that the charges against all these accused. Accordingly, I hereby order that the charges for offences U/S 120b IPC and Sections 7, 12, 13(2) r/w 13(1) (d) of the P. C. Act, 1988 be framed against all the accused namely, L. K. Adavani, S.K. Jain, J.K. Jain, B.R . Jain and N.K. Jain.

Further Charges for offence U.s. 7 and 13(2) read with 13(1)(d) of P.C. Act, 1988 be framed against accused L. K. Advani.

Further charges for offence U/s 12 of P.C. Act, 1988 be framed against accused S.K. Jain, J.K. Jain, B.R. Jain and N. K. Jain.”

Assailing the above order/charges the respondents moved the High court through petitions filed under Section 482 CR. P. C., which were allowed by a common order and the proceedings of the above two cases were quashed and the respondents were discharged. The above order of the High Court is under challenge in these appeals at the instance of the CBI.

From the above resume of facts it is manifest that the entire edifice of the prosecution case is built on the diaries and files – and for that matter the entries made therein – recovered from J. K. Jain. While the appellant claimed that the entries in the documents would be admissible under Sections 34,10 and 17 of the Evidence Act, (’Act’ for short) the respondents contended that the nature and character of the documents inhibited their admissibility under all the above Sections. Needless to say, to delve into and decide this debatable point it will be necessary at this stage to look into the documents; the two spiral note books (marked MR 68/91 and MR 71/91), two small spiral pads (MR 69/91 and MR 70/91) and two files, each containing some loose sheets of papers (MR 72/91 and MR 73/91). Since according to the prosecution MR 71/91 is the main (mother) book we first take the same for scrutiny. Page 1 of the book begins with the heading “A/C given upto 31st January on 31.1.1998;” and then follows serially numbered entries of various figures multiplied by ‘some other figures on the left hand column and the product thereof on the next column for each month commencing from January, 1990 to April, 1991. The overleaf (’o’ for short ) of the page contains similar entries for the period from April, 1988 to December, 1989 and it ends with the words “2.77’ we have to receive”. In the subsequent pages the book records monthly receipts of monies/funds from inconspicuous persons/entities during the period commencing from the month of February, 1988 to April 1991 maintained on ’2 columns’ basis. The left hand column represents the receipts and the right hand column disbursements. In the column of receipts the source is indicated in abbreviated form on the left of the figure representing the sum received. On the right side of the said figures a number is mentioned which co-relates with the serial number of the account of receivers recorded on pages 1 and 1(o) of the diary for the period subsequent to 31.1.1988. So far as the names of the payees are concerned the same have also been recorded in abbreviated form, alphabets or words. The entries, however, do not give nay indication of any sale, purchase or trading and show only receipts of money from a set of persons and entities on one side and payments to another set of persons and entities on the other, both reckoned and kept monthly. As regards the actual amounts received and disbursed we notice that the figures which have been mentioned briefly against the respective names are not suffixed with any symbol, volume or unit so as to specifically indicate whether they are in lakhs, thousands or any other denomination. It is noticed that in most of the entries the figures against transactions extend to 2 places after decimal which seem to suggest that the figures in money column may be in thousands, but then in some of the months, namely, 11/88, 6/89, 10/90, 2/91, 3/91, 4/91, figures extend to 5 places after decimal point in money column. This gives an impression that the figures are in lakhs; and this impression gains ground from other transactions. For example, at page 9 of the book in the transactions relating to the month of September 80, a figure of 32,000 prefixed by (sterling pound symbol) indicates that it is 32,000 sterling pounds and the same has been multiplied by Rs. 40/- per pound which was possibly the conversion rate of pound according to Indian currency at that time) and the total has been indicated at 12.80 as against the product of Rs. 12,80,000/-. That necessarily means that the 2 places after decimal denotes that figures are in lakhs. The book further indicates that it was from time to time shown to some persons and they put their signatures in token thereof.

The other book (M.R. 68/91) contains, inter alia, entries relating to cash and fund received and disbursed in the months of February, March and April 1991 recorded in similar fashion as in M.R. 71/91 (some or all of which correspond with the entries in MR 71/91 for those months); expenses incurred in the month of March 91; and ’political expenses as on 26.4.91’ with names of a number of persons mentioned thereunder through their initials or surnames and various amounts shown against their respective names in only figures running upto 2 points after decimal. The other entries in this book seem to be wholly unconnected to the entries earlier referred to. The two small spiral pads (M.R. 69/71 and M.R. 70/91) also contain some entries relating to similar receipt and disbursement on certain days and in certain months during the above period – all written in similar fashion. So far as the two files containing some loose sheets of paper are concerned ( M. R. 72/91 and 71/91) we notice that in some of these papers accounts of money received and disbursed in one particular month or a period covering a number of months are written.

While arguing their case for framing of charges against the respondents it was contended on behalf of the appellant before the trial Court that having regard to the fact that the documents unmistakably showed that accounts of business regarding receipt and payment of money during the period 1988 to 19991 were regularly maintained those documents would be admissible under Section 34 of the Act. Relying upon the statements of some of the witnesses recorded during investigation and report of the handwriting expert that the entries in the documents were in the handwriting of J.K. Jain, and that the three Jain brothers had signed those documents in token of their authenticity, it was contended that entries therein would be admissible also under Section 10 of the Act to prove that pursuant to a conspiracy hatched up by the Jains to obtain favours from politicians and other public servants payments were made to them from moneys received through hawala transactions. Section 17 and 21 were also pressed into service to contend that the entries would be ’admission of the Jains of such payments.

In refuting the above contentions it was submitted on behalf of the respondents that since those documents were not books of accounts nor were they maintained in regular course of business they would not be relevant under Section 34. It was next submitted that even it was assumed that those documents were relevant and admissible under Section 34 they could be, in view of the plain language of that Section, used only as corroborative evidence, but in absence of any independent evidence to prove the payments alleged therein the documents were of no avail to the prosecution. The admissibility of the documents under Section 10 was resisted by the respondents contending that there was not an iota of material to show even, prima facie, that there was a conspiracy. Similar was the contention regarding

applicability of sections 17 and 21 in absence of any material to prove ’admission’ of Jains. In support of their respective contentions they relied upon some decisions of this Court as also of different High Courts.

From the order of the trial Court we find that though it noted all the contentions of the parties and quoted in extensor from the judgments relied on by them it left the question regarding admissibility of the documents under Section 34 unanswered with the following observation:-

“All the above cited case laws U/s 34 and other sections of Indian Evidence Act pertain to the stage where in those cases entire evidence has been recorded and the trial was concluded. There is not even a single judgment which has been referred to above which pertains to the stage of charge. In the instant case, the case is at the stage of charge. So these case laws are not applicable to the facts and circumstances of the present case, at this stage.”

Then, proceeding on the assumption that those documents did not come within the purview of Section 34, the trial court posed the question as to their evidentlary value without first going into the question whether the documents were admissible in evidence) and held that being ’documents’ under Section 3 of the Act they could be proved during trial under Sections 61 and 62 thereof. The trial Court then referred to the various entries in the diaries and after correlating them came to the conclusion that a prima facie case had been made out against the respondents. However, the appellant’s contention that the entries made in the diaries were also admissible under Sections 17 and 21 as against the Jains did not find favour with the trial court as, according to it, prima facie there was no admission on behalf of the accused. As regards the admissibility of the entries in the documents under Section 10, the trial Court did not record any specific finding.

In setting aside the order of the trial court, the High Court accepted the contention of the respondents that the documents were not admissible in evidence under Section 34 with the following words:

” An account presupposes the existence of two persons such as a seller and a purchaser, creditor and debtor. Admittedly, the alleged diaries in the present case are not records of the entries arising out of a contract. They do not contain the debts and credits. They can at the most be described as a memorandum kept by a person for his own benefit which will enable him to look into the same whenever the need arised to do for his future purpose. Admittedly the said diaries were not being maintained on day-to day basis in he course of business. There is no mention of the dates on which the alleged payment were made. In fact the entries there in are on monthly basis. Even the names of the persons whom the alleged payments were made do not find a mention in full. they have been shown in abreviated form. Only certain ’letters’ have been written against their names which are within the knowledge of only the scribe of the said diaries as to what they stand for and whom they refer to.”

After having held that the documents were neither books of account nor kept in the regular course of business the High Court observed that even if they were admissible under Section 34, they were not, in view of the plain language of the Section , sufficient enough to fasten the liability on the head of a person, against whom they were sought to be used. As, according to the High, the prosecution conceded that besides the alleged entries in the diaries and the loose sheets there was no other evidence it observed that the entires would not further the case of the prosecution. As regards the admissibility of the documents under Section 10 the High Court held that the materials collected during investigation did not raise a reasonable ground to believe that a conspiracy existed, far less, that the respondents were parties thereto and, therefore, those documents would not be admissible under Section 10 also. The High Court next took up the question as to whether those documents could be admitted under Section 17 and observed that the admissions, if any, therein could be used against Jains only and not against Shri Adavani and Shri Shukla. The High Court, however observed that the production and proof of the documents by themselves would not furnish evidence of the truth of their contents and that during investigation C.B.I. did not examine any witness or collect materials to prove the same. With the above findings and observations, the High Court arrived at the following conclusion:-

” In the present case there is no evidence against the petitioners except the diaries, note books and the loose sheet with regard to the alleged payments (vide MR Nos. 68/91, 72/91 and 73/91). The said evidence is of such a nature which cannot be converted into a legal evidence against the petitioners, in view of my above discussion.

There is no evidence in the instant case with regard to the monies which are alleged to have been, received by Jains for the purpose of disbursement. There is no evidence with regard to the disbursement of the amount . Then there is no evidence with regard to the disbursement of the amount. Then there is no evidence with regard to the fact to prove prima facie that the petitioners i.e. Shri L. K. Advani and Shri V. C. Shukla accepted the alleged amounts as a motive or reward for showing favour or disfavor to any person and that the said favours and disfavors were shown in the discharge of their duties as public servants as contemplated by 5.7 of the Act (Prevention of Corruption Act, 1988). Thus the court will have to presume all the above facts in the absence of any evidence in connection therewith to frame charges against the petitioners.

To appreciate the contentions raised before us by the learned counsel for the parties it will be necessary at this stage to refer to the material provisions of the Act. Section 3 declares that a fact a relevant to another when it is connected with the other in any of the ways referred to in the provisions of the Act relating to the relevancy of facts; and those provisions are to be found in sections 6 to 55 appearing in Chapter II. Section 5, with which Chapter Ii opens, expressly provides that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and the facts declared relevant in the aforesaid section, and of no others. Section 34 of the Act reads as under:-

” Entries in books of account when relevant – Entries in book of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the court has to inquire but such statements shall not alone be sufficient evidence to charge any person with liability.”

From a plain reading of the Section it is manifest that to make an entry relevant thereunder it must be shown that it has been made in a book, that book is a book of account and that book of account has been regularly kept in the course of business. From the above Section it is also manifest that even if the above requirements are fulfilled and the entry becomes admissible as relevant evidence, still, the statement made therein shall not alone be sufficient evidence, still, the statement made therein shall not along be sufficient evidence to charge any person with liability. It is thus seen that while the first part of the section speaks of the relevancy of the entry as evidence, the second park speaks, in a negative way, of its evidentiary value for charging a person with a liability. It will, therefore, be necessary for us to first ascertain whether the entries in the documents, with which we are concerned, fulfil the requirements of the above section so as to be admissible in evidence and if this question is answered in the affirmative then only its probative value need be assessed. ’Book’ ordinarily means a collection of sheets of paper or other material, blank, written, or printed, fastened or bound together so as to form a material whole. Loose sheets or scraps of paper cannot be termed as ’book’ for they can be easily detached and replaced. In dealing with the work ’book’ appearing in Section 34 in Mukundram vs. Dayaram [AIR 1914 Nagpur 44], a decision on which both sides have placed reliance, the Court observed:-

” In its ordinary sense it signifies a collection of sheets of paper bound together in a manner which cannot be disturbed or altered except by tearing apart. The binding is of a kind which is not intended to the moveable in the sense of being undone and put together again. A collection of papers in a portfolio, or clip, or strung together on a piece of twine which is intended to be untied at will, would not, in ordinary English, be called a book………………………………………………………I think the term “book” in S. 34 aforesaid may properly’ be taken to signify, ordinarily, a collection of sheets of paper bound together with the intention that such binding shall be permanent and the papers used collectively in one volume. It is easier however to say what is not a book for the purposes of S. 34, and I have no hesitation in holding that unbound sheets of paper in whatever quantity, though filled up with one continuous account, are not a book of account within the purview of S. 34.”

We must observe that the aforesaid approach is in accord with good reasoning and we are in full agreement with it. Applying the above tests it must be held that the two spiral note books (MR 68/91 and 71/91) and the two spiral pads (MR 69/91 and MR 70/91) are “books” within the meaning of Section 34, but not the loose sheets of papers contained in the two files (MR 72/91 and MR 73/91).

The next question is whether the above books fulfil the other requirements of Section 34 so as to be admissible in evidence. Mr. Altaf Ahmed, the learned Additional Solicitor General, appearing for the appellant submitted that the interpretation of the High Court that the expressions “books of account” and “business” appearing in the above section refer and relate to only such business as may exist between two persons such as a seller and purchaser, creditor and debtor, is anomalous for such a truncated view would disable law from dealing with illicit business and situations connected therewith, such as the case in hand, where a conspiracy was hatched up to receive money through hawala channels and other sources and to distribute it as bribes to politicians to influence favorable decisions from them. According to Mr. Altaf Ahmed, the expression “business” under Section 34 should receive the widest possible meaning and should be under stood and construed to mean and include all such efforts of people, which , by varied methods of dealing with each other are designed to improve their individual economic conditions and satisfy their desires. he submitted that any book in which monetary transactions are recorded and reckoned would answer the description of ’book of account’ within the meaning of the aforesaid section. Relying upon the dictionary meanings of the above two words, namely, ’business’ and ’account’ and the interpretations given to those words by various Courts of law, he submitted that the book (MR 71/91) and the connected documents would clearly prove that they were books of account maintained in respect of the illegal business that the Jain were carrying. His last contention on this aspect of the matter was that the transactions contained in MR 71/91 and the connected documents were an inherently credible record of the business in question and the books were maintained with such regularity as was compatible with the nature of the business the Jain brothers were carrying and consequently those books would be admissible in evidence under Section 34.

Mr. Sibal, the learned counsel for the Jains, did not dispute that the spiral note books and the small pads are ’books’ within the meaning of Section 34. He, however, strongly disputed the admissibility of those books in evidence under the aforesaid section on the ground that they were neither books of account nor they were regularly kept in the course of business. he submitted that at best it could be said that those books were memoranda kept by a person for his own benefit. According to Mr. Sibal, in business parlance ’account’ means a formal statement of money transactions between parties arising out of contractual or fiduciary relationship. Since the books in question did not reflect any such relationship and, on the contrary, only contained entries of monies received from one set of persons and payment thereof to another set of persons it could not be said, by any stretch of imagination that they were books of account, argued mr. Sibal. He next contended that even if it was assumed for argument’s sake that the above books were books of account relating to a business still they would not be admissible under Section 34 as they were not regularly kept. It was urged by him that the words ’regularly kept’ mean that the entries in the books were contemporaneously made at the time the transactions took place but a cursory glance of the books would show that the entries were made therein long after the purported transactions took place. In support of his contentions he also relied upon the dictionary meanings of the words ’account’ and ’regularly kept’.

The word ’account’ has been defined in Words and Phrases, permanent Edition, Volume IA at pages 336 to 338 to mean (i) a claim or demand by one person against another creating a debtor-creditor relation’ (ii) a formal statement in detail of transactions between two parties arising out of contracts or some fiduciary relation. At page 343 of the same book the word has also been defined to mean the preparation of record or statement of transactions or the like; a statement and explanation of one’s administration or conduct in money affairs; a statement of record of financial transactions, a reckoning or computation; a registry of pecuniary transactions or a reckoning of money transactions’ a written or printed statement of business dealing or debts and credits; or a certain class of them. It is thus seen that while the former definitions give the word ’account’ a restrictive meaning the latter give it a comprehensive meaning. Similarly is the above word defined, both expansively, in Black’s Law Dictionary (Sixth Edition) to mean’s detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contracts or some fiduciary relation. A statement in writing, of debits and credits, or of receipts and payments; a list of items of debits and credits, with their respective dates. A statement of pecuniary transactions; a record or course of business dealings between parties; a list of statement of monetary transactions, such as payments, losses, sales, debits, credits, accounts payable, accounts receivable, etc., in most cases showing a balance or result of comparison between items of an opposite nature.’

Mr. Altaf Ahmed relied upon the wider definition of the word ’account’ as mentioned above to conned that MR 71/91 fulfills the requirements of ’account’ as it records a statement of monetary transactions – such as receipts and payments – duly reckoned. Mr. Sibal on the other hand urged that business accounts must necessarily mean only those accounts which record transactions between two parties, arising out of a contract or some fiduciary relations ( a meaning accepted by the High Court). He submitted, relying upon the definition of ’memorandum’ as appearing in ’words and Phrases’, that MR 71/91 could at best be described as a memorandum of some transactions kept by a person for his own benefit to look into same if and when the occasion would arise.

From the above definitions of ’account’ it is evident that if it has to be narrowly construed to mean a formal statement of transactions between two parties including debtor-creditor relation and arising out of contract, or some fiduciary relations undoubtedly the book MR 71/91 would not come within the purview of Section 34. Conversely, if the word ’account’ is to be given wider meaning to include a record of financial transactions properly reckoned the above book would attract the definition of ’book of account’.

It cannot be gainsaid that the words ’account’, ’books of account’, ’business’ and ’regularly kept’ appearing in Section 34 are of general import. necessarily, therefore, such words must receive a general construction unless there is something in the Act itself, such as the subject matter with which the Act is dealing, or the context in which the words are used, to show the intention of the legislature that they must be given a restrictive meaning.

Indubitably, the Act lays down the rules of evidence to be applied and followed in all judicial proceedings in or before any Court including some Courts – martial. Keep in view the purpose for which the Act was brought into the statute book and its sweep, the words appearing in Section 34 have got to be given their ordinary, natural and grammatical meaning, more so, when neither the context nor any principle of construction requires their restrictive meaning. While on this point we may refer to Section 209 of the Companies Act, 1956 which expressly lays down what ’books of account’ to be maintained thereunder must contain and, therefore, the general meaning of the above words under the Act may not be applicable there.

In Mukundram (supra) after dealing with the word ’book’ (to which we have earlier referred) the Court proceeded to consider what is meant by a ’book of account’ under Section 34 and stated as under:

” To account is to reckon, and I an unable to conceive any accounting which does not involve either addition or subtraction or both of these operations of arithmetic. A book which contains successive entries of items may be a good memorandum book; but until those entries are totalled or balanced, or both, as the case may be, there is no reckoning and no account. In the making of totals and striking of balances from time to time lies the chief safeguard under which books of account have been distinguished from other private records as capable of containing substantive evidence on which reliance may be placed.”
(emphasis supplied)

We have no hesitation in adopting the reasoning adumbrated in the above observations. The underlined portion of the above passage supports the contention of Mr. Altaf Ahmed and rebuts that of mr. Sibal that Mr 71/91 is only a memorandum for the entries made therein are totalled and balanced. We are, therefore, of the opinion that MR71/91 is a ’book of account’ as it records monetary transactions duly reckoned.

Coming now to the word ’ business’ , we need not search for its meaning in Black’s Law Dictionary, or words and Phrases for this Court has dealt with the word in a number of cases. In Narain Swadesh Weaving Mills vs. The Commissioner of Excess profits Tax [ 1955 (1) SCR 952], a five judge bench of this Court held that the word ’business’ connotes some real, substantial and systematic or organised course of activity or conduct with a set purpose’ and the above interpretation was quoted with approval in Mazagaon Dock Ltd. vs. The Commissioner of Income Tax and Excess Profits Tax [1959 SCR 848]. Again in Barendra Prasad Ray vs. I.T.O. [1981 92) SCC 693] this court observed that the word ’business’ is one of wide import ad it means an activity carried on continuously and systematically by a person by the application of his labour or skill with a view to earning an income. The activities of the Jain brothers, as sought to be projected by the prosecution now on the basis of the materials collected during investigation (detailed earlier) would, therefore, be ’business’ for they were being carried on continuously in an organised manner, with a set purpose (be it illegal) to augment their own resources. mr. 71/91 is, therefore, a book of account kept in the course of business.

That brings us to the question whether it was ’regularly kept’ so as to satisfy the last requirement of Section 34 to be admissible in evidence as a relevant fact. Mr. Altaf Ahamed submitted that the above question has got to be answered keeping in view the nature of business the Jain brothers were carrying on and that when MR 71/91 is Scanned in that perspective it is obvious that it was regularly kept. In refuting the above contentions Mr. Sibal relied upon $ 1550 of American Jurisprudence, proof of Facts (Volume 34, Second Series) wherein it has been observed that not merely regularity is required; the entry must have been fairly contemporaneous with the transaction entered. he also referred to $ 1526 of the same book which reads as under:

The entry should have been made at or near the time of the transaction recorded – not merely because this is necessary in order to assure a fairly accurate recollection of the of the matter, but because any trustworthy habit of making regular business records will ordinarily involve the making of the record contemporaneously. The rule fixes no precise time’ each case must depend on its own circumstances.”
(emphasis supplied)

Mr. Sibal submitted that from a cursory glance of MR 71/91. It would be apparent that the entries therein were not contemporaneously made; and, on the contrary, they were made monthly which necessarily meant that those entries were made long after the dates the purported transactions of receipt and disbursement took place.

What is meant by the words ’regularly kept’ in Section 34 came up for consideration before different high Courts; and we may profitable refer to some of those decisions cited at the Bar. In Ramchand Pitembhardar Vs. Emperor [19 Indian cases 534] it has been observed that the books are ’regularly kept in the corse of business’ if they are kept in pursuance of some continuous and uniform practice in the current routine of the business of the particular person to whom they belong. In Kesheo Rao vs. Ganesh [AIR 1926 Nagpur 407] the court interpreted the above words as under:

” The regularity of which S.34 speaks cannot possibly mean that there is not mistake in the accounts, as that would make the section a dead letter; no accounts could be admitted in evidence till they had been proved to be absolutely correct, which is in itself an impossible task and also cannot be begun till they have been admitted in evidence. Regularly or systematically means that the accounts are kept according to a set of rules or a system, whether the accountant has followed the rules or system closely or not. Nor is there any thing in the section that says the system must be an elaborate or reliable one. Both those matters, the degree of excellence of the system and the closeness with which it has been followed, affect the weight of the evidence of an entry, not it s admissibility. The roughest memoranda of accounts kept generally according to the most elementary system, though often departing from its, are admissible in evidence, but would of corse have no weight.”

The view expressed by the Kerala High Court in Kunjamman Vs. Govinda Kurukkal [1960 kerala Law Times 184] in this regard is that the words ’regularly kept’ do not necessarily mean kept in a technically correct manner for no particular set of rule or system of keeping accounts is prescribed under Section 34 of the Evidence Act and even memoranda of account kept by petty shopkeepers are admissible if they are authentic While dealing with the same question the Punjab & Haryana High Court observe in Hiralal Mahabir Pershad Vs. Mutsaddilal Jugal Kishore [(1967) 1 I. L. R P &: H 435] that the entries should not be a recital of past transactions but an account of transactions as they occur, of course, not necessarily to be made exactly at the time of occurrence and it is sufficient if they are made within a reasonable time when the memory could be considered recent.

In our considered opinion to ascertain whether a book of account has been regularly kept the nature of occupation is an eminent factor fr weighment. The test of regularity of keeping accounts by a shopkeeper who has dally transactions cannot be the same as that of a broker in real estates. Not only their systems of maintaining books of account will differ but also the yardstick of contemporaneity in making entries therein. We are, therefore, unable to subscribe to the view of Mr. Sibal that an entry must necessarily be made in the book of account at or about the time the related transaction takes place so as to enable the book to a pass the test of ’regularly kept’. Indeed the above Section ($ 1526) expressly lays down (emphasised earlier) that the rule fixed no precise time and each case must depend upon its own circumstances. Applying the above tests and the principles consistently laid down by the different High Court s(referred to above ) we find that Mr 71/91 has been regularly and systematically maintained. Whether the system in which the book has been maintained guarantees its correctness or trustworthiness is a question of its probative value and not of its admissibility as a relevant fact under Section 34. The other three books, namely MR 68/91 and MR 70/91 would not however come within the purview of the above Section, for, even though some of the emonetary transactions entered therein appear to be related to those in MR 70/91, they (the three books ) cannot be said to be books of account regularly kept. We need not, however, at this stage consider whether the entries in these three books will be relevant under any other provisions of Chapter II of the Act.

Now that we have found ( in disagreement with the High Court ) that entries in MR 71/91 would be admissible under Section 34 of the Act we have to next ascertain there probative value. mr. Altaf Ahmed took great pains to decode and analyses the entries in the above book and, correlating them with the entries in the other three books and in some of the loose sheets found in the files, submitted that the intrinsic evidence furnished by their internal corroboration and inter-dependence unmistakably demonstrated their authenticity and trustworthiness. According to Mr. Altaf Ahmed the entries reflect such periodicity and regularity as was compatible with the modus operandi of the business of Jain brothers of corrupting public servant including Members of Parliament and Ministers in order to influence their decisions and seek their favours for promotion of their (Jain brothers’) economic interests. Besides, he submitted, the external independent corroboration of those entries as required under Section 34 was also available to the prosecution from the statements made by Shri Jacob Mathai, Danial P. Rambal and P. Ghoshal and Ejaj Ilmi during investigation, in that, they have admitted receipts of the payments as shown against them in MR. 71/91. While on this point, he made a particular reference to those entries in MR 71/91 Which, according to him m if corresponded with the entries in the other books and the enclose sheets would prove the payments to Shri Advani and Shri Shukla. As regard s the proof of authorship of the entries he drew our attention to the statements of Pawan Jain , A. V. Pathak and D.K. Guha who have stated that the entries were made by J. K. Jain and that the Jain Brothers had put their signatures against some of these entries in token of verification thereof. He also drew our attention to the written opinion given by the hand writing expert in this regard.

In response Mr. Sibal submitted that the evidence that has been collected during investigation only shows that the entries were made by J. K. Jain and that the Jain brothers had put certain signatures against some of those entries it there is o evidence whatsoever to prove that movies were actually paid by the Jains and received by the payees as shown in the entries, without proof of which no case, even prima facie, could be said to have ben made out against any of therm. According to Mr. Sibal and Mr. Jethmalani, learned Counsel for Shri Advani by more proof of a document the truth of the contents thereof is to proved and independent evidence for that purpose is required. In absence of any such evidence, they contended, no liability can be foisted under Section 34.

The rationale behind admissibility of parties’ books of account as evidence is that the regularity of habit, the difficulty of falsification and the fair certainty of ultimate detection give them in a sufficient degree a probability of trustworthiness (wigmore on evidence $ 1546). Since, however, an element of self interest and partisanship of the entrant to make a person – behind whose back and without whose knowledge the entry is made – liable cannot be ruled out the additional safeguard of insistence upon other independent evidence to fasten him with such liability, aha been provided for in Section 34 by incorporating the words such statements shall not alone be sufficient to charge any person with liability.

The probative value of the liability created by an entry in books of account came up for consideration in Chandradhar vs. Gauhati Bank [1967 (1) S. C. R. 898]. That case arose out of a suit filed by Gauhati Bank against Chandradhar (the appellant therein ) for recovery of a loan of Rs. 40,000/- . IN defence he contended, inter alia, that no loan was taken. To substantiate their claim the Bank solely relied upon certified copy of the accounts maintained by them under Section 4 of the Bankers’ Book Evidence Act, 1891 and contended that certified copies became prima facie evidence of the existence of the original entries in the accounts and were admissible to prove the payment of loan given. The suit was decreed by the trial Court and the appeal preferred against it was dismissed by the High Court. In setting aside the decree this Court observed that in the face of the positive case made out by Chandradhar that he did not ever borrow any sum from the Bank, the Bank had to prove that fact of such payment and could not rely on mere entries in the books of account even if they were regularily kept in the corse of business in view of the clear language of Section 34 of the Act. This Court further observed that where the entries were not admitted it was the duty of the Bank, if it relied on such entries to charge any person with liability, to produce evidence in support of the entries to show that the money was advanced as indicated therein and thereafter the entries would be of use as corroborative evidence.

The same question came up for consideration before different High Court on a number of occasions but to eschew prolixity we would confine our attention to some of the judgements on which Mr. Sibal relied. In Yesuvadiyan Vs. Subba Naicker [A. I. R. 1919 Madras 132] one of the learned judges constituting the Bench had this to say:

S.34, Evidence Act, lays down that the entries in books of account, regularly kept in the course of business are relevant, but such a statement will not alone e be sufficient to charge any person with liability. That merely means that the plaintiff cannot obtain a decree by merely proving the existence of certain entries in his books of account even though those books are shown to be kept in the regular course of business. he will have to show further by some independent evidence that the entires represent real and honest transactions and that the moneys were paid in accordance with those entries. The legislature however does not require any particular form or kind of evidence in addition to entries in books of account, and I take it that any relevant fact s which can be treated as evidence within the meaning of the Evidence Act would be sufficient corroboration of the evidence furnished by entries in books of account if true.”

While concurring with the above observations the other learned Judge stated as under:

” If no other evidence besides the accounts were given, however strongly those accounts may be supported by the probabilities, and however strong may be the evidence as to the honesty of those who kept them, such consideration could not alone with reference to s.34, Evidence Act, be the basis of a decree.”
(emphasis supplied)

In Beni Vs. Bisan Dayal [ A. I. R 1925 Nagpur 445] it was observed tat entries in book s of account are not by themselves sufficient to charge any person with liability, the reason being that a man cannot be allowed to make evidence for himself by what he chooses to write in his own books behind the back of the parties. There must be independent evidence of the transaction to which the entries relate an din absence of such evidence no relief can be given to the party who relies upon such entries to support his claim against another. In Hira Lal Vs. Ram Rakha [ A. I. R. 1953 Pepsu 113] the High Court, while negativing a contention that it having been proved that the books of account were regularly kept in the ordinary course of business and that, therefore, all entries therein should be considered to be relevant and to have been prove, said that the rule as laid down in Section 34 of the Act that entries in the books of account regularly kept in the course of business re relevant whenever they refer to a matter in which the court has to enquire was subject to the salient proviso that such entries shall not alone be sufficient evidence to charge any person with liability. It is not, therefore, enough merely to prove that the books have been regularly kept in the course of business and the entries therein are correct. It is further incumbent upon the person relying upon those entries to prove that the were in accordance with facts.

The evidentiary value of entries relevant under Section 34 was also considered in Hiralal Mahabir Pershad (supra ) I.D. Dua, ]. (as he then was ) speaking for the Court observed that such entries though relevant were only corroborative evidence and it is to be shown further by some independent evidence that the entries represent honest and real transactions and that monies were paid in accordance with those entries.

A conspectus of the above decisions makes it evident that even correct and authentic entries in books of account cannot without independent evidence of their trustworthiness, fix a liability upon a person. Keeping in view the above principles, even if we proceed on the assumption that the entries made in MR 71/91 are correct and the entries in the other books and loose sheets which we have already found to be not admissible in evidence under Section 34) are admissible under Section 9 of the Act to support an inference about the formers’ correctness still those entries would not be sufficient to charge Shri Advani and Shri Shukla with the accusations levelled against them for there is not an iota of independent evidence in support thereof. In that view of the matter we need not discuss, deleve into or decide upon the contention raised by Mr. Altaf Ahmed in this regard. Suffice it to say that the statements of the for witnesses, who have admitted receipts of the payments as shown against them in MR 71/91, can at best be proof of reliability of the entries so far they are concerned and not others. In other words, the statements of the above witnesses cannot be independent evidence under Section 34 as against the above two respondents. So far as Shri Advani is concerned Section 34 would not come in aid of the prosecution for another reason also. According to the prosecution case itself his name finds place only in one of the loose sheets (sheet No. 8) and not in MR 71/91. Resultantly, in view of our earlier discussion, section 34 cannot at all be pressed into service against him.

Following conclusion of our discussion on Section 34 of the Act we may now turn to the principle and scope of Section 10 of the Act and its applicability to the entries in question. This section reads as under:-

” Things said or done by conspirator in reference to common design. – where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, any thing said, done or written by any one of such persons in reference to their common intention, after the time when such intention was firs t entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.”

In dealing with this Section in Sardul Singh vs. State of Bombay [ AIR 1957 S. C. 747], this court observed that it is recognised on well established authority that the principle under lining the reception of evidence of the statements, acts and writings of one co-conspirator as against the other is on the theory of agency. Ordinarily, a person cannot be made responsible for the acts of other unless they have been instigated by him or done with his knowledge or consent. This section provides an exception to that rule, by laying down that an overt act committed by any one of the conspirators is sufficient, (on the general principles of agency) to make it the act of all. But then, the opening of words of the Section makes in abundantly clear that such concept of agency can be availed of, only after the Court is satisfied that there is reasonable ground to believe that they have conspired to commit an offence or an actionable wrong. In other words, only when such a reasonable ground exists, any thing said, done or written by any one of then in reference to their common intention thereafter is relevant against the others, not only for the propose of proving the existence of the conspiracy but also for proving the existence of the conspiracy but also for proving that the other person was a party to it. In Bhagwan Swarup vs. State of Maharashtra [ A. I. R 1965 S. C. 682 ], this court analysed the section as follows:-

” (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe that two or more persons are members of a conspiracy; (2) if the said condition is fulfilled, any thing said, done or written by any one of them in reference to their common intention will be evidence against the other; (3) any thing said, done or written by him should have been said, done or written by him after the intention was formed by any one of them; (4) it would also be relevant for the said purpose against another who entered the conspiracy whether it was said , done or written before the entered the conspiracy or after the left it’ and (5) it can only be used against a co-conspirator and not in his favour.”

In the light of the above principles we may now consider the arguments canvassed by Mr. Altaf Ahmed to made the entries in the books and the enclose sheets admissible under the above section as relevant evidence. He submitted that the materials collected during investigation and placed on record clearly establish the existence of a general conspiracy amongst jains to promote their economic interest by corrupting public servant. He next contended that the materials further disclosed that in order to accomplish the design of the general conspiracy, a number of separate conspiracles with similar purpose had been hatched up between jains and different public servants.

At the outset we may point out that no charge was framed against the Jains from having entered into a criminal conspiracy amongst themselves (even though such was the allegation in the charge sheet). We need not, therefore, consider the materials collected during investigation from that perspective. Indeed , according to the charges of conspiracy all the respondents were parties thereto and the conspiracy existed for the period from February, 1990 to January, 1991. Therefore we have to ascertain whether there is Prima facie evidence affording a reasonable ground for us to believe about its such existence.

To persuade us to give an affirmative answer to the above question mr. Altaf Ahmed drew our attention to the statements of Jacob Mathai (L. W. 4), Dr. P.K. Magu (L.W. 14), Vijay Kumar Verma (L. W. 15), Bharat Singh (L. W. 16) C. D.D Reddy (L. W. 17), S.R. Choudhary (L. W. 18), Ram Prasad (L. W. 19), H. P. Guha Roy (L. W. 20) and Narendra Singh (L. W. 21). On perusal of their statements we find that some of them are irrelevant to the charges of conspiracy with which we are now concerned while others, to the extent they can be translated into legally admissible evidence, only indicate that Shri Shukla was known to the jain Brothers and had gone to their residence on formal occasions. The above statements cannot be made a reasonable ground to believe that all of them have conspired together. So far as Shri Advani is concerned, we find that no one has even spoke about him in their statements. Since the first requirement of Section 10 is not fulfilled the entired in the documents cannot be pressed into service under its latter part .

Lastly, comes the questions whether the entries are ’admissions’ within the meaning of Section 17 of the Act so as to be admissible as relevant evidence under Section 21; and if so, as against whom can the entries be prove. IN Section 17 admission has been defended to be a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons, and under the circumstances, mentioned in the subsequent Sections (Section 18 to 21). Section 18, so far as it is relevant for our present purposes, provides that statements made by apart to the proceeding or by an agent to any such party, whom the Court regards under the circumstances of the case, has expressly or impliedly authorised by him to make them are admissions. Section 21 reads as under:

Proof of admissions against persons making them and by or on their behalf – admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but hey cannot be proved by or on behalf of the person who makes them or by his representative in interest except in the following cases:-

(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature, that if the person making it were dead, it would be relevant as between third persons under Section 32.

(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.

(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.”

From a combined reading of the above Sections it is manifest that an oral or documentary statement made by a party or his authorised agent, suggesting any inference as to any fact in issue or relevant fact may be proved against a party t the proceeding or his authorised agent as ’admission’ but, apart form exceptional cases (as contained in Section 21), such a statement cannot be proved by or on their behalf. While on this point the distinction between ’admission’ and concession’ needs to be appreciated. In absence of any definition of ’confession’ in the Act judicial opinion, as to its exact meaning, was not unanimous until the judicial Committee made an authoritative pronouncement about the same in Pakala Narayana vs Emperor [AIR 1939 privy Council 47] with these words:-

” …. a confession must either admit in terms the offence, or at any rate substantially all the facts which constitutes the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, eg. An admission that the accused is the owner of an was in recent possession of the knife or revolver which caused a death……………………………………………..have a general term for use in the three following articles, confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Evidence Act, 1872, and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused ’suggesting the inference that he committed the crime”.

The above statement of law has been approved and consistently followed by this Court. [Palvinder Kaur vs. State of Punjab (1953) S.C.R. 94, Om Parkash vs. State of U.P. A.I.R. 1960 SC 409 and Veera Ibrahim vs. State of Maharashtra (1976) 3 S.C.R. 692].

It is thus seen that only voluntary and direct acknowledgement of guilt is a confession but when a confession falls short of actual admission guilt it may nevertheless be used as evidence against the person who made it or his authorised agent as an ’admission’ under section 21. The law in this regard has been clearly – and in our considered view correctly – explained in Monir’s law of Evidence (New Edition at pages 205 and 206), on which mr. Jethmalani relied to bring home his contention that even if the entries are treated as ’admission’ of jains still they cannot be used against Shri Advani. The relevant passage reads as under:-

” The distinction between admissions and confessions is of considerable importance for two reasons. Firstly, a statement made by an accused person, if it is an admission, is admissible in evidence under Section 21 of the evidence Act, unless the Statement amounts to a confession and was made to a person in authority in consequence of some improper inducement, threat or promise, or was made at a time when the accused was in custody of a police officer. If a statement was made by the accused in the circumstance just mentioned it s admissibility will depend upon the determination of the question whether it does not does not amount to a confession. If it amounts to a confession, it will be inadmissible, but if it does not amount to a confession. If it amounts to a confession. If it amounts to a confession, it will be inadmissible, but if it does not amount to a confession, it will be admissible under Section 21 of the Act as an admission, provided that it suggests an inference as to a fact which is in issue in, or relevant to, the case and was not made to a police officer in the course of an investigation under Chapter XIV of the Code of criminal procedure. Secondly, a statement made by an accused person is admissible against others who are being jointly tried with him only if the statement amounts to a confession. Where the statement falls short of a confession, it is admissible only against its maker as an admission and not against those who are being jointly tried with him. Therefore, from the point of view of Section 30 of the Evidence Act also the distinction between and admission and a confession is of fundamental importance.”
(emphasis supplied)

In the light of the preceding discussion we proceed to consider the validity of the arguments canvassed by Shri Altaf Ahmed in this regard. mr. Altaf Ahmed urged that it being a settled principle of law that statements in account books of a person are ’admissions’ and can be used against him even though those statements were never communicated to any other person, the entries would be admissible as admission of J. K. Jain, who made them that apart, he contended, they would be admissible against jain brothers also as they were made under their authority as would be evident from their endorsements/signatures appearing against below some of those entries. In support of his first contention he relied upon the following passage from the judgment of his Court in Bhogilal Chunilal pandya vs. State of Bombay [(1959) Supp. (1) SCR 310]:

” The first group of sections in the Act in which the word ’ statement ’ occurs, are ss. 17 to 21, which deal with admissions. Section 17 defines the word ’admission’, ss. 18 to 21 lay down what statements are admissions, and s. 21 deals with the proof of admissions against persons making them. The word s used in ss. 18 to 21 in this connection are ’statements made by.’. It is not disputed that statements made by persons may be used as admissions against them even though they may not have been communicated to any other person. For example. Statements in the account books of a person showing that he was indebted to another person are admissions which can be used against him even though these statements were never communicated to any other person. illustration (b) of s. 231 also shows that the word ’statement’ used in these sections does not necessarily imply that they must have been communicated to any other person. In the Illustration in question entries made in the book kept by a ship’s captain in the ordinary corse of business are called statements, though these entries are not communicated to any other person. An examination, therefore, of these sections show that in this part of the Act the word ’statement’ has been used in its primary meaning namely, ’something that is stated’ communication is not necessary in order that it may be a statement.”.

Even if we are to accept the above contentions of Mr. Altaf Ahmed the entries, [which re statements’ as held by this Court in Bhogilal chunilal (supra) and hereinafter will be so referred to ], being ’admissions’ – and not t’ confession’- cannot be used as against Shri Advani or Shri Shukla. however, as against jains the statements may be proved as admissions under Section 18 read with Section 21 of the Act provided they relate to ’ any fact in issue or relevant fact.’ Needless to say, what will be ’facts in issue’ or ’relevant facts’ in a criminal trial will depend upon, and will be delineated by, the nature of accusations made or charges levelled against the person indicated. In the two case with which were are concerned in these appeals, the gravamen of the charges which were framed against Jains in one of them (quoted earlier) and were to be framed in the other pursuant to the order of the trial Court (quoted earlier) is that they entered into two separate agreements; one with Shri Shukla and the other with Shri Advani, in terms of which they were to make certain payments to them as a gratification other than legal remuneration as a motive or reward for getting their favour while they were ’public servants’ and in pursuance of the said agreements payments were actually made to them thereby the Jains committed the offence of conspiracy under Section 120 b of the Indian Penal code; and under Section 12 of the prevention of Corruption Act, 1988 (P.C. Act for short), in that, they abetted the commission of offences under Section 7 of the Act by Shri Shukla and Shri Advani.

It is thus seen that the prosecution sought to prove that there were tow separate conspiracies, in both of which Jains together figured as the common party and Shri Advani or Shri Shukla, as the other . Since we have already found that the prosecution has not been able to made out a prima facie case to prove that Shri Advani and Shri shukla were parties to such conspiracies, the charges of conspiracy, as framed/sought to be framed, cannot stand also against the Jains, for the simple reason that in a conspiracy there must be two parties. Resultantly , the statements cannot be proved as admission of Jains of such conspiracy. We hasten to add hat the case the prosecution intended to project now was not that there was a conspiracy amongst the Jains to offer illegal gratification to Shri Advani and shri Shukla and that pursuant thereto the latter accepted the Same. We need not, therefore, dilate of the question whether, if such was the case of the prosecution, the statements could be proved against the Jains as their admission.

Thus said we may now turn our attention to Section 12 of the P. C. Act. That Section reads as under:-

” Punishment for abetment of offences defined in section 7 or 11… Whoever abets any offence punishable under Section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.”

Undoubtedly for a person to be guilty thereunder it is not necessary that the offences mentioned therein should have been committed prusuan to the abetment. Since ’abetment’ has not been defined under the P.C. Act we may profitable y refer to its exhaustible definition in Section 107 of the Indian Penal Code. As per that Section a person abets the doing of a thing when he does any of the acts mentioned in the following three clauses;
(i) instigates any person to do that thing, or

(ii) engages with one or more other person or persons in any conspiracy for the doing of that thing …….., or

(iii) intentionally aids, by any act or illegal omission, the doing of that things.

So far as the first two clauses are concerned it is not necessary that the offence instigated should have been committed. For under standing the scope of the word ” aid” in the third clause it would be advantageous to see Explanation 2 in Section 107 I.P.C. which reads thus:

” whoever, either prior to or t the time of the commission of an act, does any thing in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.”

It is thus clear that under the third clause when a person abets by aiding, the act so aided should have been committed in order to make such aiding an offence. In other words, unlike the first tow clauses the third clause applies to a case where the offence is committed.

Since in the instant case the prosecution intended to prove the abetment of a Jains by aiding (and not by any act falling under the first two clauses adverted to above ) and since we have earlier found that no prima facie case has been made out against Shri Advani and Shri Shukla of their having committed the offence under Section 7 of the P.C. Act, the question of Jains’ committing the offence under Section 12 and , for that matter, their admission in respect thereof – does not arise. Incidentally, we may mention that the abetment by conspiracy would not also arise here in view of our earlier discussion.

Before we conclude it need be mentioned that another question of considerable importance that came up for consideration in these appeals was whether members of parliament come within the definition of ’public servant’ in the P.C. Act so as to make the respondents liable for prosecution for alleged commission of offences there under.

We did not deem it necessary to go into that question as we found, proceeding on the assumption that they could be so prosecuted, that no prima facie case was made out against any of the respondents to justify the changes that were framed against the Jains and Shri Shukla ( in one case ) ; and were to be framed against Jains and Shri Advani (in the other ) pursuant to the order of the trial Court. Accordingly, we dismiss these appeals keeping this question of law open .

The post Central Bureau of Investigation Vs. V.C. Shukla & Ors. appeared first on B&B Associates LLP.

2. To be referred to the Reporter or not? YES

3. Whether Their Lordships wish to see the fair copy of the judgement? NO

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? NO

5. Whether it is to be circulated to the Civil Judge? NO
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KTAER ABBAS HABIB AL QUTAIFI
Versus
UNION OF INDIA
————————————————————–
Appearance:
MR BHUSHAN B OZA WITH MR ANMOL SHARON for Petitioners
MR HL JANI, GOVERNMENT PLEADER for Respondent No. 2, 3
MR BT RAO, Addl. Standing Counsel for Union of India
————————————————————–
CORAM : MR.JUSTICE N.N.MATHUR

Date of decision: 12/10/98

ORAL JUDGEMENT

1. By way of this Special Civil Application under Article 226 of the Constitution of India, the petitioners (1) Mr. Ktaer Abbas Habib Al Qutaifi and (2) Taer Al Mansoori, aged 16 and 17 years respectively (hereinafter referred to as ‘the refugees’) of Iraq Origin, seeks direction to release them from detention at the Joint Interrogation Centre, Bhuj, Dist. Kutch, State of Gujarat and instead of deporting them to Iraq, they may be handed over to United Nations, High Commissioner for Refugees known as UNHCR on the basis of principle of ‘non-refoulement’.

2. The “Humanitarian Jurisprudence” is now an International Creed in time of Peace and War. According to Jean Pictet, an authority on Humanitarian law, “It is based on two basic principles viz. – necessity and humanity”. The word ‘Humanitarian’ itself directs ‘humanitarian touch’ to the problem. Amnesty international report 1998 on Iraq has reported detention of hundreds of suspected Government opponents including the possible prisoners of conscience, without trial. It has also reported hundreds of execution, some of which may be extra judicial. The report has quoted Decree No. 115 dated 25th August 1994 issued by the Government of Iraq which stipulates, cutting off one auricle of one ear of a person in event of non-performance of military service, deserting from military service or shouldering or protecting anyone who has evaded or deserted from military services. The decree further stipulates that a horizontal line shall be tattooed on the forehead of person whose ear has been cut off. The petitioners who are Iraqi Refugees do not wish to join army because of their abhorrence for violence. Thus, they were left with no option but to flee from the country as there was no scope of continuing to live there in a peaceful and free style. They had a fear of being persecuted. They like many others flee to India and some other countries. On their entrance in India, they have been detained since 13th November 1997. It is their say that they are out of contact with their family, ever since they were detained. It is also stated that they are in fragile state of mind and one of them made an attempt to commit suicide by putting his hands in electric connection. An offence u/s 309 IPC was registered against him and he was let off, after a days imprisonment. They have been detained under the provisions of the Foreigners Act and it is threatened that they will be deported to Iraq. The petitioners do not want to return to Iraq as they have fear of being persecuted in their country. It is also stated that the petitioners have registered themselves as refugees with the UNHCR. The certificate dated 3rd March 1998 reads as follows :

“UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES

This is to certify that Ktaer Abbass Habib Al Qutaili …….. a national of IRAQ is on the basis of available information considered to be a refugee within the mandate of the Office of the United Nations High Commissioner for Refugees.

Any assistance provided to Ktaer Abbass Habib Al Qutaili …….. during his stay in India would be greatly appreciated.

This certificate is valid for a period of one year.

Sumbul Rizui Khan
Associate Protection Officer
For UNHCR Chief of Mission”

Identical certificate has been issued in case of second petitioner Taer Al Mansoori.

R E P L Y ::

2. A counter affidavit has been filed by Miss Usha Rani, Section Officer in Foreigner Division in the Ministry of Home Affairs, Government of India, at New Delhi. An objection has been taken with respect to the maintainability of the petition on the ground that the petitioners have no constitutional or fundamental rights to file the present petition as they have entered in the territory of Union of India without any valid travel documents. It is also submitted that the powers under the Foreigners Act, 1946 especially u/s 3(2)(c) and (d) has been entrusted to the State Government. This power includes the power to deportation, movements, residence of foreign nationals staying illegally in India. With respect to the condition in Iraq, it is stated that the present situation in Iraq is substantially improved and there is no war like situation. It is also stated that many such Iraqis are returning from India to Iraq. It is further stated that, in compliance of the directions of this Court dated 22nd May 1998 based on refugee certificate issued by UNHCR, the petitioners have been handed over to UNHCR and they have been accorded extension upto 30th December 1998 i.e. till Iraqi Embassy, New Delhi issue necessary travel documents for the purpose of sending the present petitioners to Iraq. It is further stated that the petitioners cannot be given permanent status of Indian Citizen on account of several administrative exigencies and from the point of view of National Security, which cannot be disclosed before this Court on the ground of National Security.

C O N T E N T I O N S ::

3. It is contended by Mr. Bhushan Oza, learned counsel for the petitioners that the petitioners though foreign nationals, their fundamental rights to life and liberty are guaranteed under Article 21 of the Constitution of India. Apart from that, this right is also guaranteed under Article 3 of the Universal Declaration of Human Rights, which is binding on India. Further, under Article 3 of the convention against torture, a state party to convention is prohibited to expel, return or extradite a person to another State, where there are substantial grounds for believing that he would be in danger of being subjected to torture. He place reliance upon the decision of the apex Court in case of People’s Union for Civil Liberties v/s Union of India reported in 1997 (3) SCC page 433. He also relied on some unreported decisions of the various High Courts. It is further submitted that the Central Government has power to exempt an individual foreigner or a class or a description of foreigners from the application of Foreigners Act, as provided u/s 3-A of the Foreigners Act. It is submitted that India has given shelter to the refugees like Tibetans, Srilankans, Afghans and Chakmas. Learned counsel has also contended that Article 51 of the Constitution extends the principle of the rules of natural justice with regard to refugees being followed i.e. the refugees should not be expelled or forcibly returned in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened on account of various grounds such as membership of a particular social group or a political opinion. The principle of “Non-Refoulement’ is the principle which prevents all such expulsion or forcible return of refugees and should be followed by the central Government in accordance with Article 51 of the Constitution. With reference to the improvement of the condition in Iraq, it is submitted that the same is not correct.

4. On the other hand, Mr. B.T.Rao, learned Additional Central Government Counsel submits that our country has not signed the treaties and conventions referred by the petitioners and as such, the same are not binding. With respect to the powers of exemption u/s 3(A) of the Foreigners Act, it is submitted that the same applies only to the citizens of Commonwealth countries. The petitioners are of Iraq origin and that country being not commonwealth country, the provision of section 3(A) of the Foreigners Act is not attracted. It is emphasized by the learned Additional Central Government Counsel that the influx of refugees has become a serious problem to the country which is also threatening its security. So far as the fundamental rights are concerned, it is submitted that the foreign nationals have no fundamental right of residence in India. It is also submitted by Mr. B.T.Rao, learned counsel that the powers u/s 3(2) has been delegated to the State Government. Thus, the appropriate action is required to be taken by the State Government. Mr. Rao has also disputed the genuineness of the photostat copy of the report of the UNHCR produced by the petitioners.
5. So far as the State Government is concerned, inspite of notice, it has exhibited unconcern attitude.

REFUGEES and U.N.O. ::

6. Refugee problem is a global problem. A successive stream of humanitarian crises has high lightened the plight of the victims, as well as the threat, that large scale population movements pose to regional security, stability and prosperity. Host countries are reluctant to keep doors open for refugees. Since 1947, some about 35 – 40 million people have moved across the border in the Indian Sub Continent. India opened boundary for Tibetians, Sri Lankans, Chakmas, Afgans and others. The Government of India has seen the refugees problem from a broader perspective, derived from its ancient cultural heritage. Reminding the Indian ethos and the humanitarian thrust, Buddha to Gandhi, Justice V.R.Krishna Iyer, has given message as Chairman, ICHLR, in these words :

“The Indian perception is informed by a profound regard for person-hood and a deep commitment to prevent suffering. Ancient India’s cultural vision has recognised this veneration for the individual. The Manusmrithi deals elaborately with Dharma even amidst the clash of arms. The deeper springs of humanitarian law distinguished the people of India by the very fact that Dharma Yudha or the humanitarian regulation of warfare, is in the very blood of Indian history. Cosmic compassion and ecological empathy flow from the abundant reservoir of Buddha’s teachings whose mission was the search for an end to human sorrow or Dukha. ‘Emperor Ashoka’ renounced war as he beheld slaughter in the battle-field. In the Mahabharatha and Ramayana, the great epics of India, we find inviolable rules of ethics and kindness to be observed even by warring rulers in battle-fields. One may conclude that the Indian Constitution, in enacting fundamental duties in Article 51-A has cast on every citizen the duty to promote harmony among all the peoples of India, to have compassion for living creatures and to develop humanism and abjure violence. Thus, humanitarian legality and concern for refugee status are writ large in the Indian ethos. Its noble tone and temper is in keeping with the Delhi Declaration signed by Rajiv Gandhi and Gorbachev (1989) expressing the finest spirit of India’s composite cultural heritage as it advocates a Non-violent World Order and war-free global humanity.”

7. On December 10, 1948, The General Assembly of the United Nations adopted and proclaimed the Universal declaration of Human Rights. The declaration contained in all 30 Articles. The people of the United Nations reaffirmed their faith in fundamental human rights, the dignity and worth of the human person and in the equal rights of men and women. The member nations pledged themselves to achieve, in cooperation with the United Nations, the promotion of Universal respect for and observance of human rights and fundamental freedom. Some of the relevant articles are extracted as follows :

Article – 3 ::
Everyone has the right to life, liberty and security of person.
Article – 5 ::
No one shall be subjected to torture or to cruel, in human or degrading treatment or punishment.
Article – 6 ::
Everyone has the right to recognition everywhere as a person before the law.
Article – 9 ::
No one shall be subjected to arbitrary arrest, detention or exile.

U N H C R ::

8. Soon after coming into force United Nations Charter on December 10, 1948, the General Assembly of the UNO adopted and proclaimed universal declaration of human rights. by resolution of 3rd December 1949. United Nations General Assembly decided to establish a High Commissioner’s office for Refugees. The Statute of the office of U.N. High Commissioner for Refugee was adopted by general assembly on 14th December 1950. The Assembly also called upon the Governments to cooperate with the High Commissioner in performance of his functions concerning refugees falling under the competence of his office. In accordance with the statute, the work of the High Commissioner is humanitarian and social and of an entirely non-political character. The High Commissioner reports annually to the General Assembly through the economic and social council. The office of the High Commissioner for Refugees has engaged in activities in countries of actual or potential return aimed at making effective the fundamental human rights of refugees to return to their own countries. They include the negotiation – often within tripartie frameworks involving countries of asylum, the country of origin, and UNCHR office. They also include, monitoring the situation of returnees on the ground, for the dual purpose of preventing discrimination or victimization and of providing objective information upon which remaining refugees and displaced persons can base their decision to return. UNCHR claims to have helped million of Refugees return home voluntarily. It also helps in the disintegration of the refugees back into their country, through small community based projects and income generating activities. In the host country, refugees are helped to become self reliant through training. In limited situations, UNCHR help refugees to resettle in third country. The role of UNCHR in the repatriation of Tamils to Sri Lanka from India has been mentioned in particular.

Implementation of International Humanitarian Treaties and Conventions by Courts in India ::

9. There is no law in India which contain any specific provision obliging the State to enforce or implement the international treaties and conventions including the implementation of International Humanitarian Law (IHL). Amongst the domestic legislation, the only law that directly deals with the principle of IHL is the Geneva Convention Act, 1960. The main objectives of the Act is to implement the provisions of the 1949 Conventions relating to the punishment for grave breaches and prevent and punish the abuse of Red cross in other emblems. The apex Court in Rev. Mons. Sebastian Francisco Zavier Dos Remedious Monterio vs. The state of Goa reported in AIR 1970 SC 329 examined the scope of Geneva Conventions Act, 1960 and observed about the efficacy of the Act, thus,

“…. the Act by itself does not give any special remedy. It does give indirect protection by providing for breaches of Conventions. The Conventions are not made enforceable by the government against itself, nor does the Act give a cause of action to any party for the enforcement of the Conventions. Thus, there is only an obligation undertaken by the Government of India to respect the Conventions regarding the treatment of civilian population, but there is no right created in respect of protected persons which the court has been asked to enforce.”

10. However, constitution guarantees certain fundamental human rights to citizens as well as non-citizens. The preamble of the Constitution which declares the general purpose for which the several provisions of the Constitution have been made to, “assure the dignity of the individual” which is also the basic objective of the international humanitarian law. The Article 21 of the Constitution of India guarantees the right of life and the personal liberty. A person can not be deprived of right of life and liberty, except according to the procedure established by law.

11. The apex Court in case of National Human Rights Commission vs. State of Arunachal Pradesh and another reported in (1996) 1 SCC 742, held that the Indian Constitution confer certain rights on every human being, may be a citizen of this country or not, which includes right of “life”. A.M.Ahmedi, C.J. (as he then was), speaking for the Court, said, thus,

“We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus, the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise……”

In the said case, National Human Rights Commission in a PIL under Article 32 of the Constitution sought to enforce rights under Article 21 of about 65,000 Chakmas. A large number of Chakmas from erst while East Pakistan were displaced by Kaptai Hydal power project in 1964. They had taken shelter in Tripura and Assam. Since large number of refugees had taken shelter in Assam, the State Government expressed its inability to rehabilitate. As such, a discussion took place between the Government of India and NEFA administration and it was decided to send some of the Chakmas for the purpose of re-settlement to the territory of the present day Arunachal Pradesh. Now, they have settled there and developed and established social, economic and religious ties. A group of Chakmas made representations for the grant of citizenship, but no decision was taken thereon. The relations between citizens of Arunachal and Chakmas deteriorated, as such they complained that they were subjected to repressive measures with a view to forcibly expel them. NHRC found prima facie case, to the extent that the State Government was working in coordination with a local organisation known as AAPSU with a view to expel Chakmas. The apex Court held that State Government was under constitutional and statutory obligation to protect the threatened groups. The Court directed the State of Arunachal Pradesh to protect the life and liberty of Chakma refugees.

12. In Louis deraedt vs. Union of India and others reported in (1991) 3 SCC 554, the apex Court held that the fundamental rights of the foreigners is confined to Article 21 for life and liberty and does not include right to reside and settle in this country as mentioned in Article 19(1)(e) which is applicable only to the citizens of this country. The Court also referred to its earlier decision in case of Central Bank of India vs. Ram Narain AIR 1955 SC 36, wherein it is held that the power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in India fettering this discretion.

In the said case, petitioner Louis Deraedt, a foreign national was living in India since 1937 continuously except for a brief period when he had gone to Belgium in the year 1966 and 1973. On the commencement of the Indian constitution, the petitioner did not express his intention to stay in India permanently, but he continued to stay. In 1985, he was asked to leave the country. He applied for the citizenship which was declined. The Court on facts held that he was not entitled to Indian Citizenship.

13. In People’s Union for Civil Liberties vs. Union of India reported in (1997) 3 SCC 433, a direction was sought t•o institute a judicial inquiry into the fake counter by Imphal police in which two persons were killed. A further direction was sought for compensation to the members of the deceased family. In pursuance of the court’s direction the District Judge conducted the inquiry and reported that there was no encounter and deceased persons were shot dead by police. The State took the plea that the Manipur is a disturbed area and there are several terrorists groups operating in the State. They are indulging in number of crimes affecting the public order and security of the State. It was also submitted that there have been regular encounters and exchange of fire between police and terrorists on number of occasions. A number of citizens have suffered at the hands of the terrorists and many people have been killed. The petitioners claiming compensation for the family of the deceased persons, placed reliance on Article 9(5) of the International Covenant on Civilian Political Rights, 1966, which reads as under :-

“Any one who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

It raised an interesting question, viz. to what extent can the provisions of international convenants / conventions be read into domestic law. The Court referred to a decision of Australia Court, viz. Minister of Immigration and Ethnic Affairs v/s Teoh [ (1995) Aus LJ 43 ], wherein the court held that provisions of international conventions to which Australia is a party, especially on which declares universal fundamental rights, may be used by the Courts as a legitimate guide in developing the common law. The apex Court after referring the said Australian Case and its own decisions in Nilabati Behera (1993(2) SCC 746) and D.K. Basu (1997(1) SCC 416), held that the provisions of covenant, which elucidate and go to effectuate the fundamental rights guaranteed under our Constitution can be relied upon by the Courts, as facets of those fundamental rights and hence, enforceable as such. The Court accordingly awarded compensation to families of each of the deceased persons.

14. Learned counsel has also placed reliance on two unreported decisions of the Madras High Court. In the case of P. Nedunara vs. Union of India in writ petition No. 6708/96 and No. 7910/92 decided on 22nd March 1990. In both the cases, the controversy was with respect to deportation of certain Srilankan Refugees. It was contended in the said case that the refugees were being deported without their consent. Petitions were disposed of on the basis of statement made by the counsel for Union of India that the Srilankan Refugees will not be sent back to their native place without their consent.

15. Learned counsel has also brought to my notice a unreported decision of Gauhati High Court in Civil Writ Petition No. 1847/89. In the said case, the petitioner sought direction to allow him to go to Delhi to seek political asylum from the United Natinas, High Commissioner for Refugees. He also prayed that till he gets such certificate he may not be deported to Burma, where his life would be in danger. During the pendency of the writ petition, the petitioner was registered as refugee. On the facts of the case, the Court directed to release the petitioner to enable him to make an attempt to obtain political asylum.

16. Learned counsel has next relied upon another unreported decision of the Punjab & Haryana High Court in writ petition No. 499/96 decided on 21st February 1997. In the said case, the foreigner national was given custody to the United Nations High Commissioner for Refugees, as it was not objected either by the learned counsel for the State Government or by the Union of India.

17. The unreported decisions referred to above indicates that Union or the State Governments till now as a policy have not objected to give custody of registered refugees to UNCHR. Mr. Bhushan Oza, the learned counsel has also made it clear that the petitioners only seek to bide their time in India till the situation in Iraq improves, thereby enabling them to return to their own country.

PRINCIPLE OF NON-REFOULMENT ::
18. The principle of ‘Non-refoulment’ i.e. the principle of international law which requires that no state shall return a refugee in any manner to a country where his or her life or freedom may be in danger, is also embodied in Article 33(1) of the United Nations Convention on the Status of Refugees. Article 33 reads as under :-

“No contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership of social group or political opinion.”

This principle prevents expulsion of a refugee where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Its application protects life and liberty of a human being irrespective of his nationality. It is encompassed in Article 21 of the Constitution, so long as the presence of refugee is not prejudicial to the law and order and security of India. All member nations of United Nation including our country are expected to respect for international treaties and conventions concerning Humanitarian law. In fact, Article 51(c) of the Constitution also cast a duty on the State to endeavour to “foster respect for international law and treaty obligations in the dealing of organized people with one another”. It is apt to quote S. Goodwin Gill from his book on “The Refugees in International Law”, thus,

“The evidence relating to the meaning and scope of non-refoulement in its treaty sence also amply supports the conclusion that today the principle forms part of general international law. There is substantial, if not conclusive, authority that the principle is binding on all states, independently of specific assent.”

PRINCIPLE FOR ENFORCEMENT OF HUMANITARIAN LAW :
19. From the conspectus of the aforesaid, following principle emerges in the matter of enforcement of Humanitarian law :-

(1) The International Conventions and Treaties are not as such enforceable by the Government, nor they give cause of action to any party, but there is an obligation on the Government to respect them.

(2) The power of the Government to expel a foreigner is absolute.

(3) Article 21 of the Constitution of India guarantees right of life on Indian Soil to a non-citizen, as well, but not right to reside and settle in India.

(4) The international covenants and treaties which effectuate the fundamental rights guaranteed in our constitution can be relied upon by the Courts as facets of those fundamental rights and can be enforced as such.

(5) The work of the UNHCR being humanitarian, on certification of Refugee,FS the Government of India is under obligation to ensure that Refugees receive international protection until their problem is solved.

(6) The principle of ‘non-refoulment’ is encompassed in Article 21 of the Constitution of India and the protection is available, so long as the presence of the refugee is not prejudicial to the national security.

(7) In view of directives under Article 51(c) and Article 253, international law and treaty obligations are to be respected. The Courts may apply those principles in domestic law, provided such principles are not inconsistent with domestic law.

(8) Where two construction of the domestic law is possible, Courts can give effect to international conventions and treaties by a harmonious construction.

20. In the instant case, the petitioners are refugees certified by UNHCR. Say of the petitioners that their life is in danger on return to their country, finds support from the report of the UNHCR which refers to Decree No. 115 of 25th August 1994 issued by the Government of Iraq which stipulates that the auricle of one ear shall be cut off of any person evading to perform military service. The relevant part of the report is extracted as follows :-

Country Information / UNCHR / UNHCR Centre for Documentation and Research / Iraq / Background Paper on Refugees and Asylum Seekers from Iraq (September 1996) / 4. Human Rights Situation / 4.3 General respect for Human Rights / Death Penalty.

Death Penalty :

The Special Reporteur in past years noted the frequent use of the death penalty for such political offences as insulting the President or the Baath Party His February 1995 reports summarized several Revolutionary Command Council decrees that stipulate the death penalty for political and civil offences (U.N. Economic and Social Council, 15 February 1995, 12, 13).

Decree No. 115 of 25th August 1994 stipulates that the auricle of one ear shall be cut off any person evading to perform military service, deserting from military service, or sheltering or protecting anyone who has evaded or deserted from military service. The auricle of the other ear shall be cut off in the case of a second offence involving any of the crimes mentioned above. A horizontal line shall be tattoed on the forehead of every person whose ear has been cut off. Further more, Decree No.115 broadened the application of the death penalty. It stated that ‘death by firing squad shall be the penalty for anyone who; (a) Has deserted from military service three times; (b) Had evaded military service and subsequently deserted twice; (c) Has three times protected or sheltered any deserted from or evader of military service (llbid.25). In March 1996, Saddam Hussein ordered an end to the practice of cutting off the ears of deserters and draft evaders. The decision may have been linked to parliamentary elections that month (The Guardian, 18 March 1996). According to the Swiss Federal Office for Refugees, as far as is known the abolishment of ear amputations has not been officially adopted in the form of a Decree and therefore, is not yet lawful.”

While disputing the genuineness of the abovesaid document, learned additional central government counsel says that according to the report, the practice of cutting off ears has been stopped. The learned counsel has conveniently overlooked the next sentence in the report, where it is said that the decision may have been linked to parliamentary elections that month. In fact, the Central Government has not applied its mind to the problem. Only after direction was given by this Court to keep present in Court on next date of hearing, a officer from the Home Department of the Government of India, a casual reply by a junior officer of the rank of section officer has been filed. The Central Government has taken the stand that the decision is to be taken by the State Government as the power u/s 3(2)(c) and (d) of the Foreigners Act has been entrusted to the State Government. The State Government, though a party has adopted an attitude of “total unconcern”. UNHCR inspite of tall claims, in the instant case, except issuing a refugee certificate, has done nothing. UNHCR is required to take up the problem with the Government of Iraq as well as Government of India. It is expected from the UNHCR to take more active interest to solve the problems of the petitioners Refugees, for which it exists. Thus, in absence of relevant material and consideration by the concerned authorities, the only direction which can be given in the present case is to ask the said authorities to consider the petitioners’ case in right perspective from the humanitarian point of view.

21. Consequently, this Special Civil Application is allowed and the respondents are directed to consider the petitioner’s prayer in accordance with law, keeping in view law laid down in this judgement and take a decision by 31st December 1998. Petitioners shall not be deported from India till then. If the decision is taken against the petitioners, they will not be deported for a further period of 15 days from the date of communication of such decision. A copy of this judgement be sent to Chief of Mission, United Nations High Commissioner for Refugees, 14, Jor Bagh, New Delhi 110 003. Rule is made absolute to the aforesaid extent. No orders as to costs.

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IN THE SUPREME COURT OF INDIA
SHRI A.B.KRISHNA & ORS. …PETITIONER
Vs.
THE STATE OF KARNATAKA & ORS. …RESPONDENT
DATE OF JUDGMENT: 14/01/1998
BENCH: S. SAGHIR AHMAD, D.P. WADHWA
THE 14TH DAY OF JANUARY, 1998

Present :
Hon’ble Mr. Justice S.Saghir Ahmad
Hon’ble Mr. Justice D.P.Wadhwa
P.Mahale, Adv. for the appellants
M.Veerappa, Adv. for t he Respondents

J U D G M E N T

The following Judgment of the Court was delivered:

S.SAGHIR AHMAD. J.
Section 39 of the Fire Force Act, 1964 under which Mysore Fire Force has been established gives rule-making power to the State Government, in exercise of which the State Government made Mysore Fire Force (Cadre Recruitment )Rules, 1971. Under these Rules, promotion to the post of Leading Firemen is made from the post of Firemen/Firemen Drivers.

2. In 1982, an examination was conducted for making promotion to the post of Leading Firemen in accordance with the procedure indicated in the Rules, and a select list of 43 persons including Respondent 4 and 5 was prepared out of which nineteen persons, ten in one batch and nine in the other, were promoted but thereafter the select list was not operated. In June, 1982, the select list was not operated.

In June, 1982, the Government of Karnataka, however, took a policy decision that promotion to the post of Head of Department or to the posts of Additional Head of Department would be made by Selection while promotion on all other posts would be made on the basis of seniority-cum-merit and not by selection, including selection through a qualifying examination, irrespective of the method specified in the Rules of Recruitment. In view of this policy decision, the Karnataka Civil Services (General Recruitment) Rules, 1971 were amended. This was followed by a Circular which was issued to all the Departments indicating therein that examination, if any, prescribed under the Rules, may not be held for purpose of promotion.

3. In 1986, after the amendment of the General Rules, as indicated above, the appellants were promoted to the post of Leading Firemen on the basis of their seniority. Their promotion was challenged by respondents 4 and 5 on the ground that the Karnataka Civil Services (General Recruitment) Rules, 1977 were not applicable to the posts under the present establishment and that promotion to the post of Leading Firemen shall continue to be government by the Rules made by the State Government under Section 39 of the Fire Force Act, 1964, under which a qualifying examination had to be passed before promotion which was not passed by the appellants who were promoted merely on the ground of seniority. This contention has been upheld by the Karnataka Administrative Tribunal. It is against this Judgment that the present appeal has been filed.

4 It is contended by the learned counsel for the appellants that the Karnataka Civil Services (General Recruitment) Rules, 1971 were amended in 1977 by Rules made by the Government under Article 309 of the Constitution and, therefore, the Mysore Fire Force (Cadre Recruitment) Rules, 1971 shall be deemed to have been superseded at least to the extent that t hey make provision for an examination to be passed before promotion which under the General Rules, have to be made on the basis of seniority alone and, therfore, the promotion of the appellants made on the basis of seniority could not have been set aside. It is contended, in the alternative that Rules made under Section 39 of the Act have been made by the Government and not by the Legislature and, therefore, if any Rule is made by the Government under Article 309 of the Constitution, it will positively displace the Rule made under Section 39 by the same authority namely, the Government and, therefore, those Rules shall be deemed to have been impliedly superseded.

5 Rule-making power, so far as services under the Union or any State, are concerned, are vested in the President or the Governor, as the case may be, under Article 309 of the Constitution which provides as under :- “309.Recruitment and conditions of service of persons serving the Union or a State-Subject to the provisions of this constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of services of person appointed, to public services and posts in connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.”

6. It is primarily the Legislature, namely, the Parliament or the State Legislative Assembly, in whom power to make law regulating the recruitment and conditions of service of persons appointed to public services and posts, in connection with the affairs of the Union or the State, is vested. The legislative field indicated in this Article is the same as is indicated in Entry 71 of List I of the Seventh Schedule of Entry 41 of List II of that Schedule.

The Proviso, however, gives power to the President or the Governor to make Service Rules but this is only a transitional provision as the power under the Proviso can be exercised only so long as the Legislature does not make an Act whereby recruitment to public posts as also other conditions of service relating to that post are laid down.

7. The Rule-making function under the Proviso to Article 309 is a legislative function. Since Article 309 has to operate subject to other provisions of the Constitution, it is obvious that whether it is an Act made by the Parliament or the State Legislature which lays down the conditions of service or it is the Rule made by the President or the Governor under the Proviso to that Article, they have to be in conformity with the other provisions of the Constitution specially Article 14, 16 310 and 311.

8. The Fire Services under the State Government were created and established under the Fire Force Act, 1964 made by the State Legislature. It was in exercise of the power conferred under Section 39 of the Act that the State Government made Service Rules regulating the conditions of Fire Service. Since Fire Service had been specially established under an Act of the Legislature and the Government, in pursuance of the power conferred upon it under that Act, has already made Service Rules, any amendment in the Karnataka Civil Services (General Recruitment) Rules, 1977 would not affect the special provisions validly made for Fire Services. As a matter of fact, under the scheme of Article 309 of the Constitution, once a Legislature intervenes to enact a law regulating the conditions of service, the power of Executive, including the President or the Governor, as the case may be, is totally displaced on the principle or “Doctrine of Occupied Field”.

If, however, any matter is not touched by that enactment, it will be competent for the Executive to either issue executive instructions or to make a Rule under Article 309 in respect of th at matter.

9. It is no doubt true that the Rule-making authority under Article 309 of the Constitution and Section 39 of the Act is the same, namely, the Government (to be precise, Governor, under Article 309 and Govt. under Section 39), but the two jurisdictions are different. As has been seen above, power under Article 309 cannot be exercised by the Governor, if the legislature has already made a law and the field is occupied. In that situation, Rules can be made under the Law so made by the legislature and not under Article 309. It has also to be noticed that Rules made in exercise of the rule- making power given under an Act constitute Delegated or Sub- ordinate legislation, but the Rules under Article 309 cannot be treated to fall in that category and, therefore, ont he principle of “occupied field”, the Rules under Article 309 cannot supersede the Rules made by the legislature.

10. So far as the question of implied supersession of the Rules made under Section 39 of the Act by the General Recruitment Rules, as amended in 1977, is concerned, it may be pointed out that the basic principle, as ser out in Maxwell’s Interpretation of Statutes (11th edn., page 168), is that :- “A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words, ‘where there are general words in a later Act capable of r easonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. In such cases it is presumed to have only general cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act.”

11. This principle was reiterated in Vera Cruz’s case, (1884) 10 AC 59, as under :- “Where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation… that earlier and special legislation is not to be held indirectly repealed, altered or derogated from merely by force of such general words without nay indication of a particular intention to do so.”

12. Vera Cruz’s case was followed in Eileen Louise Nicolle v. John Winter Nicolle, (1992) 1AC 284, as under :- “It is no doubt a sound principle of all jurisprudence that a prior particular law is not easily to be held to be abrogated by a posterior law, expressed in general terms and by the apparent generality of its language applicable to and covering a number of cases of which the particular law is but one.”

13. To the above effect, is also the decision of this Court in Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dev, AIR 1966 SC 1931 = (1966) 3 SCR 663, in which it was indicated that an earlier Special Law cannot be held to have been abrogated by mere implication. That being so, the argument regarding implied supersession has to be rejected for both the reasons set our above.

14. Applying the above principle to the instant case, it will be noticed that the Rules made by the State Government under Section 39 of the Act prescribe the qualifying examination as a condition precedent for promotion to t he post of Leading Firemen. These Rules have not been touched, altered or amended and they exist in their original form.

What had been done by the Government is that it has amended the General Recruitment Rules by providing therein the at any promotion made ont he higher post would not be on the basis of examination, if any prescribed, but on the basis of seniority. This is a Rule made by the Executive, namely, the Governor under Article 309 of the Constitution. The amendment in the General Recruitment Rules would not have the effect of displacing or altering the Rules made under Section 39 of the Fire Force Act, 1964 as the Act of the Legislature would have precedence over any Rule made by the Executive under the Proviso to Article 309.

15. As pointed out earlier, fire service was created and established under Fire Force Act, 1964 made by the State Legislature which gave rule-making power to the State Government. Instead of amending the General Recruitment Rules, the Government could well have exercised its power under Section 39 of the Fire Force Act, 1964 and amended the Rules specially made for the fire services. The Government, however, in its wisdom, did not do it obviously because it n ever intended to touch the fire services specially created by the State Legislature.

16. In view of the above, the appeals have no merits and the same are dismissed but without any order as to costs.

The post Shri A.B. krishna & Ors Vs. The State of Karnataka & Ors appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
P.V. NARSIMHA RAO …PETITIONER
Vs.
STATE (CBI/SPE) ETC. ETC. …RESPONDENT

DATE OF JUDGMENT: 17/04/1998
BENCH: G.N. RAY

JUDGMENT

THE 17TH DAY OF APRIL, 1998

Present:
Hon’ble Mr. Justice S.C. Agrawal
Hon’ble Mr. Justice G.N. Ray
Hon’ble Mr. Justice A.S. Anand
Hon’ble Mr. Justice S.P. Bharucha
Hon’ble Mr. Justice S. Rajendra Babu

Ashok H. Desai, Attorney General, T.R. Andhyarujina, Solicitor General, P.P. Rao, Kapil Sibal, Dr. D.D. Thakur, Sr. Advs., Ranjit Kumar, Anu Mohla, I.C. Pandey, C.Paramasivam, Ajay Talesara, Jamshed Bey, Rakhi Roy, Ms. Bina Gupta, Dr. Surat Singh, Ashok Mahajan, P.P. Singh, Chandrashekar, Girish Ananthamurthy, B.Y. Kulkarni, Navin Prakash, Arun Bhardwaj, K.C. Kaushik, Manish Sharma, D. Prakash Reddy, L. Nageshwara Rao, Ms. Indu Malhotra, Rajiv Dutta, Akhilesh Kumar Pandey, Bharat Sangal, R.P. Wadhwani, P.K. Manohar, P. Parmeswaran, A.Mariarputham and Dr. S.C. Jain, Advs. with them for the appearing parties.

J U D G M E N T S

The following Judgments of the Court were delivered:
[With Crl. A. Nos. 1209/97, 1210-1212/97. 1213/97, 1214/97. 1215/97, 1216/97, 1217-18/97, 1219/97, 1220/97, 1221/97, 1222/97, 186/98 (Arising out of S.L.P. (Crl. No 2/98) and 187/98 (Arising out of S.L.P. (Crl.) No. 366/98)]

G.N. RAY, J.

I had the privilege of reading both the judgments – one by my learned brother Mr. Justice S.C. Agrawal and the other by learned brother Mr. Justice S.P. Bharucha. Though I respectfully concur with the findings of Mr. Justice Agrawal and agree with the reasonings for such findings that (1) a member of Parliament is a public servant under Section 2[c] of the Prevention of Corruption Act, 1988 and (2) since there is no authority competent to grant sanction for the prosecution of a Member of Parliament under Section 19[1] of the Prevention of Corruption Act 1988, the Court can take cognizance of the offences mentioned in Section 19[1] in the absence of sanction but before filing a chargesheet in respect of an offence punishable under Sections 7,10,11,12 and 15 of 1988 Act against a Member of Parliament in a criminal court, the prosecuting agency shall obtain the permission of the Chairman of the Rajya Sabha/Speaker of the Lok Sabha, as the case may be, I have not been able to persuade myself to concur with the reasonings and the finding in the judgment of Mr. Justice Agrawal that a member of parliament does not enjoy immunity under Article 105(2) or 105(3) of the Constitution from being prosecuted before a criminal court for an offence involving offer or acceptance of bribe for the purpose of speaking or giving his vote in Parliament or in any committee thereof.

Article 105 of the Constitution deals with powers, privileges etc. of the Houses of Parliament and the members and committees thereof. Sub article (1) of Article 105 makes it evident that subject to the provisions of the Constitution and rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. The provisions of Sub-article (1) Article 105 indicates in no uncertain term that the freedom of speech guaranteed under sub Article (1) of Article 105 is independent of the freedom of speech guaranteed under Article 19 of the Constitution and such freedom of speech under Article 105 (1) is not inhibited or circumscribed by the restrictions under Article 105 (1) is not inhibited or circumscribed by the restrictions under Article 19 of the Constitution. In order to ensure effective functioning of Parliamentary democracy, there was a felt need that a Member of Parliament will have absolute freedom in expressing his views in the deliberations made in the door of Parliament.

Similarly he must enjoy full freedom in casting his vote in Parliament.

The protections to be enjoyed by a Member of Parliament as contained in Sub Article (2) of Article 105 essentially flows from the freedom of speech guaranteed under Sub- Article (1) of Article 105. Both the Sub-articles (1) and (2) compliment each other and indicate the true content of freedom of speech and freedom to exercise the right to vote envisaged in Article 105 of the Constitution. The expression “in respect of” appearing in several articles of the Constitution and in some other legislative provisions has been noticed in a number of decisions of this Court.

The correct interpretation of the expression “in respect of can not be made under any rigid formula but must be appreciated with references to the context in which it has been used and the purpose to be achieved under the provision in question. The context in which the expression “in respect of” has been used in sub article (2) of Article 105 and the purpose for which the freedom of speech and freedom to vote have been guaranteed in sub article (2) of Article 105 do not permit any restriction or curtailment of such right expressly given under sub article (1) and sub article (2) of Article 105 of the Constitution. It must, however be made clear that the protection under sub-article (2) of Article 105 of the Constitution must relate to the vote actually given and speech actually made in Parliament by a Member of Parliament. In any view, the protection against proceedings in court as envisaged under Sub-article (2) of Article 105 must necessarily be interpreted broadly and not in a restricted manner. Therefore, an action impugned in a court proceeding which has a nexus with the vote cast or speech made in Parliament must get the protection under sub- article (2) of Article 105. Sub-Article (3) of Article 105 provides for other powers, privileges and immunities to be enjoyed by a Member of Parliament. The farmers of the Constitution did not catalogue such powers, privileges and immunities but provided in sub article (3) of Article 105 that until such privileges are defined by the Parliament, a member of Parliament will enjoy such powers, privileges and immunities which had been recognised to be existing for a member of House of Commons at the commencement of the Constitution of India. As I respectfully agree with the reasonings indicated in the judgment of the learned brother Mr. Justice S.P. Bharucha that in the facts of the case, protection under Article 105(3) of the Constitution is not attracted but protection under Sub article (2) of Article 105 is available only to those accused, who as Members of Parliament had cast their votes in Parliament, I refrain from indicating separate reasonings in support of such finding.

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IN THE SUPREME COURT OF INDIA

STATE OF U.P. …PETITIONER
Vs.
LAKHMI …RESPONDENT

DATE OF JUDGMENT: 12/02/1998
BENCH: CJI, K.T. THOMAS, M. SRINIVASAN

J U D G M E N T

Thomas, J.

In this case of uxoricide the husband was found guilty by the Sessions Court but the High Court found him not guilty and acquitted him. That judgment of the High Court is in challenge in this appeal by special leave.

Prosecution case can be compendiously stated thus. The deceased “Omwati” was the young wife of the respondent- accused. They with their two little children were living together in the house of the respondent. Intermittent skirmishes used to erupt between them as the wife was accusing the husband for dissipating his money on alcoholic drinks. During the wee hours of 8.2.1970 respondent inflicted blows with a Phali (a spade like agricultural implement) on the head of the deceased. Her skull was smashed and she died on the spot. PW2 (Ramey) who was working in the adjacent field, on hearing the screams of the deceased, rushed up and peeped through the window and witnessed respondent thrashing his wife with the said weapon. PW2 made a hue and cry and some of the neighbours who heard the noise, ran to the place or occurrence. As the door of the room was bolted from inside they broke it open, over-powered the berserk assailant and trussed him up on a pole with a rope.

FIR was lodged by PW1 Baljeet who was one of the persons rushed to the place of occurrence on hearing the noise of PW2 (Ramey). Police after registering the case, reached the place of occurrence and took the tethered assailant into custody and proceeded to conduct investigation.

As the respondent too did not dispute the fact that his wife (deceased) was murdered by inflicting blows on her head it is unnecessary to further consider the question whether death of the deceased was a case of homicide.

Learned Sessions Judge, on evaluation of the prosecution evidence, found that the accused had killed the deceased and then considered whether he did the act without knowing the nature of it by reason of any unsoundness of mind. Though the trial Judge felt that accused was not quite a normal person it was not possible to conclude that his cognitive faculties were as impaired as to deprive him of the capacity to know the nature of his acts. Accordingly, learned Sessions Judge convicted him under Section 302, IPC and sentenced him to imprisonment for life.

But a Division Bench of the Allahabad High Court which heard his appeal felt that the evidence of PW2 (Ramey), which is of crucial importance in this case, was not credit- worthy and at any rate it was not supported by other reliable evidence. The Division Bench did not attach any importance to the statement of the respondent which he made while being examined under Section 313 of the Code of Criminal Procedure (`Code’ for short) wherein he practically admitted that he murdered his wife. Learned Judges took the view that the prosecution cannot succeed on the strength of what the accused said during examination under Section 313 of the code. Accordingly, the High Court sent the verdict of acquittal.

This being an appeal against acquittal we heard learned counsel for both sides in detail and scrutinised the evidence. In our considered opinion the High Court has gone wrong in holding that prosecution has failed to prove that the deceased was murdered by the accused. High Court has not given due regard to the cogent circumstances leading to the only conclusion that deceased was slashed to death by the accused.

As a legal proposition we cannot agree with the High Court that statement of an accused recorded under Section 313 of the code does not deserve any value or utility if it contains inculpatory admission. The need of law for examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial nor is it a mere formality. It has a salutary purpose. It enables the Court to be apprised of what the indicted person has to say about the circumstances pitted against him by the prosecution. Answers to the questions may sometimes be flat denial or outright repudiation of those circumstances. In certain cases accused would offer some explanations to incriminating circumstances. In very rare instances accused may even admit or own incriminating circumstances adduced against him, perhaps for the purpose of adopting legally recognised defences. In all such cases the Court gets the advantage of knowing his version about those aspects and it helps the Court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstance appearing in evidence against him there is no warrant that those admissions should altogether be ignored merely on the ground that such admissions were advanced as a defence strategy.

Sub-Section (4) of Section 313 of the Code contains necessary support o the legal position that answers given by the accused during such examination are intended to be considered by the Court. The words “may be taken into consideration in such enquiry or trial” in sub-Section (4) would amount to a legislative guideline for the Court to give due weight to such answers, though it does not mean that such answers could be made the sole basis of any finding.

Time and again, this Court has pointed out that such answer of the accused can well be taken into consideration in deciding whether the prosecution evidence can be relied on, and whether the accused is liable to be convicted of the offences charged against him; vide: Sampath Singh V. The State of Rajasthan [1969] INSC 1; (1969 (1) SCC 367) Jethamal Pithaji V. The Assistant Collector of Customs. Bombay and another Pradesh (1997) 4 SCC 161.

We make it clear that answers of the accused, when they contain admission of circumstances against him are not by themselves, delinked from the evidence be used for arriving at a finding that the accused had committed the offence.

In this case, PW2 (Ramey) said that while he was working in the field he heard a loud cry from inside the house of the deceased and when he peeped through the window he witnessed accused thrashing his wife with Phali. PW3 (Bhudia) and PW4 (Raje) have stated in their evidence that they too heard the sound of cry and rushed to the scene and then they saw the accused standing with Phali and Kunda near the deceased who was lying on her bed with bleeding head injury and that the room was bolted from inside.

One answer which the accused gave to the following question put to him in the examination under Section 313 of the Code is said to contain his admission of a very vital circumstance against him.

The question was this:

“What have you to say about the evidence of Ramey (PW2) that he peeped through the window and saw you standing near her bed and you killed her with Phali (Ex.Ka1) and Kunda (Ex.Ka2)?” The answer of the accused to the said question was this:

“It was not like that. I murdered her with kunda and not with Phali.” The above answer would certainly help in appreciating the statement of the prosecution witnesses who saw the accused standing near the bed of the deceased with a Phali and Kunda and that the deceased was bleeding with injuries then. We are not disposed to by-pass the impact of the aforesaid answer of the accused in determining as to who would have caused the death of the deceased.

Learned counsel for the respondent however, pointed out that as the doctor who conducted post-mortem examination on the dead body was not put in the witness box in this case and it was argued on its strength that in the absence of legally proved medical evidence no finding can be reached that the deceased died due to blows inflicted with “Phali.” No reason is seen noted by the trial court or the High Court for the non-examination of the doctor who conducted the autopsy No doubt it is the duty of the prosecution to prove post-mortem findings in murder cases, if they are available.

Absence of such proof in the prosecution evidence in a murder case is a drawback for prosecution. However, we are not disposed to allow this case to be visited with fatal consequences on account of such a lapse because the accused has admitted that death of the deceased was a case of homicide.

From the above circumstances, there is no escape from the conclusion that deceased had died at the hands of the accused. Still, that finding is not enough to dispose of this appeal. Accused attempted for a defence presumably under Section 84 of the Indian Penal Code by examining DW2, his mother to show that he was of unsound mind. But the trial judge had, according to us rightly, repelled the said defence since he did not succeed in making out that he had such a mental case when he committed the act and further that he did not know the nature of the acts committed by him by reason of such mental impairment. However, we have noticed that accused had adopted another alternative defence which has been suggested during cross-examination of prosecution witnesses i.e. his wife and PW2 (Ramey) were together on the bed during the early hours of the date of occurrence. If that suggestion reserves consideration we have to turn to the question whether the benefit of Exception I to Section 300 of the IPC should be extended to him? The law is that burden of proving such an exception is on the accused. But the mere fact that accused adopted another alternative defence during his examination under Section 313 of the IPC without referring to Exception No. 1 of Section 300 of IPC is not enough to deny him of the benefit of the Exception, if the Court can cull out materials from evidence pointing to the Existence of circumstances leading to that exception. It is not the law that failure to set up such a defence would foreclose the right to rely on the exception once and for all. It is axiomatic that burden on the accused to prove any fact can be discharged either through defence evidence or even through prosecution evidence by showing a preponderance of probability.

In the above context, we deem it useful to ascertain what possibly would have prompted the accused to kill his wife. The prosecution case as noted above, is that the accused was not well-disposed to his wife as she was always speaking against his drinking habits. we are inclined to think that, while considering the manner in which he had suddenly pounced upon his young wife who bore two children to him and smashed her head during the early hours, he would have had some other strong cause which probably would have taken place within a short time prior to the murder. Certain broad features looming large in evidence help us in that line of thinking.

The defence counsel put a definite suggestion to PW-2 (Ramey), during cross-examination, that the incident was preceded by a liaison between Omvati, the deceased, and Ramey (PW-2). The suggestion was, of course, rebuffed by the witness. One of the defence witnesses (DW-1) was examined to say that the accused was working in his field till 4 A.M. on the night in question. As that version was not inconsistent with the prosecution story, the aforesaid evidence of DW-1 was not rejected by the trial court. If that version is correct, he would have gone back to his bedroom some time thereafter, In this connection, we refer to the evidence of PW-3 who said even during chief examination itself that when he saw the accused standing near the bed side of his wife, the witness asked him what did he do, to which he snorted out that he would not spare Ramey (PW-2) also. That evidence of PW-3 (Bhondia) was binding on the prosecution which has a very significant impact on the plea based on the First Exception to Section 300. It indicates that the motive for the accused to murder his wife had some nexus with Ramey (PW-2). According to PW-4 (Raje), he rushed to the house of the accused and saw PW-2 scampering away and then saw the accused inside the bedroom muttering that Ramey had done foul acts with his wife and that he would murder him. Though the Public Prosecutor challenged that part of the witness’s testimony, he did not treat the witness as hostile for the prosecution.

The above features positively suggest that the accused would have seen something lascivious between his wife and PW2 just when he entered the house from the field.

There can be little doubt that if the accused had witnessed any such scene, his mind would have become suddenly deranged. It is not necessary that a husband should have been hot-tempered or hypersensitive to lose his equanimity by witnessing such scenes. Any ordinary man with normal senses or even sangfroid would be outraged at such a scene.

We are therefore, inclined to afford to the respondent accused benefit of Exception I to Section 300 IPC. As the corollary, we find the respondent guilty only under Section 304 (Part I), IPC.

In the result, we allow this appeal and set aside the judgment of the High Court, but in alteration of the conviction passed by the Sessions Court, we convict him under Section 304 (Part I), IPC. We sentence him to undergo rigorous imprisonment for a period of six years. We direct the Sessions Judge, Meerut to take steps to put the accused in jail for undergoing the remaining portion of the imprisonment term in accordance with the sentence imposed on him now.

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SUPREME COURT OF INDIA

WHIRLPOOL CORPORATION …PETITIONER
Vs.
REGISTRAR OF TRADE MARKS, MUMBAI & ORS. …RESPONDENT

DATE OF JUDGMENT: 26/10/1998

BENCH: S.SAGHIR AHMAD, K.T.THOMAS,

JUDGMENT

S.Saghir Ahmad. J.

Leave granted.
WHIRLPOOL, true to their name have created a WHIRLPOOL of litigation in this country. Based, as they are, the United States of America, they started the gyrating movement by applying for registration of their Trade Mark “WHIRLPOOL” to the Registrar of the Trade Marks under the Trade Marks Act, 1940, which has since been replaced by the Trade and Merchandise Marks Act, 1958 and which for the sake of brevity, shall hereinafter be referred to as the “Act”. The Trade Mark was duly registered and a Certificate of Registration was issued on 31st of July, 1957 which was renewed twice, in 1962 for a period of seven years and again for seven years with effect from 22.2.70. Since further renewal was not obtained after 1977, it was removed from the Register but the appellants continued to publicise their Trade Mark “WHIRLPOOL” as also the company name through publications Which had wide circulation in this country and thus managed to maintain their reputation among the business circle including prospective customers and buyers. On 6th of Aug. 1986, Mrs. Sumitra Charat Ram and Mr. N.R.Dongre, as Trustees of Chinar Trust applied for registration of the Trade Mark “Whirlpool” in class under Application No. 458134, which was duly advertised by the Registrar in Trade Marks Journal No. 945 on Page 845 pursuant to which the appellant filed their Opposition on 6th January, 1989, but their objections were dismissed by the Assistant Registrar by his order dated 12.8.1992. An appeal against this order which was filed in the Delhi High Court on 7.11.1992 has since been admitted on 1.2.1993 and registered as C.M.(Main) No. 414 of 1992.

In the meantime, “Whirlpool” was registered as the Trade Mark of the Chinar Trust on 30.11.1992 and a Certificate of Registration No. 458134 was granted to them. A petition for Rectification and for removal of this entry from the Register has already been filed by the appellant before the Registrar on 4.8.1993 under Sections 45 & 46 of the Act. It is still pending.

Since Chinar Trust had also started using the Trade Mark “Whirlpool” in relation to certain washing-machines, allegedly manufactured by them, the appellant, as owner of the Trade Mark “Whirlpool”, filed a Suit (Suit No. 1705 of 1994) for passing off in the Delhi High Court with a application for temporary injunction under Order 39 Rules 1 & 2 of the Code of Civil Procedure for restraining the defendants, namely, Chinar Trust, etc., from using the Trade Mark Whirlpool in relation to their products. A Single Judge of the Delhi High Court granted temporary injunction to the appellant on 31.10.1994 which was upheld by the Division Bench on 21.4.1995. Special Leave Petition filed against this order by the Chinar Trust has already been dismissed by this Court on 30.8.1996.

On 28.2.1997, the appellant filed an application in From TM-12 for renewal of the Trade Mark “Whirlpool” in Class 7 and the Registrar, by his order dated 29th July, 1997, allowed the renewal for three successive periods, namely, 22.2.1977, 22.2.1984 and finally 22.2.1991. Thereafter, on 8th Aug., 1997 appellant made an application under Order 6 Rule 17 C.P.C. for amendment of the plaint in Suit No. 1705 of 1994, referred to above, so as to include the ground of infringement of the Trade Mark also in the suit but the application is still pending in the Delhi High Court which has already granted time twice to the defendants, namely, Chinar Trust to file a reply.

In the meantime, Chinar Trust, through its attorneys, wrote on 10th Sept. 1997 to the registrar to take suo motu action under Section 56(4) for cancellation of the Certificate of Renewal granted to the appellant on 29th July, 1997 and the registrar, acting on that request, issued a notice to the appellant on 26th Sept., 1997 requiring it to show cause why the Certificate of Registration be not cancelled. Against this notice, the appellant filed a writ petition in the Bombay High Court which was dismissed on 8.12.1997. It is against this judgment that the present appeal has been filed.

Mr. Iqbal Chagla, senior counsel appearing for the appellant, has contended that a notice under Section 56(4) can be issued only by the ’TRIBUNAL’ which has been defined in Section 2 (1)(x), which means the Registrar or the High Court before which the ’proceeding concerned’ is pending. Mr. Chagla has contended that it is either the Registrar or the High Court, which can issue a notice under Section 56(4), but out of the two, only that authority can issue the notice before which the ’proceeding concerned’ is pending. It is further contended that since a passing-off suit was already pending in the Delhi High Court, where the appellant has also moved an application for amendment of the plaint so as to include the relief of infringement of its Trade Mark. notice under Section 56(4) could have been issued only by the Delhi High Court and not by the Registrar. Mr. R.N.Trivedi, ASG appearing for the Registrar, has on the contrary, contended that the Registrar continued to retain his jurisdiction under Section 56 of the Act, notwithstanding the pendency of the passing off suit filed by the appellant in the High Court as the said suit could not be treated to constitutie, in any manner, “proceedings”under the Act. Moreover, the application for amendment, by which the relief relating to infringement of Trade Mark was sought to be added in the plaint was still pending and unless that application was allowed and the additional paragraphs, including the above relief, were added in the plaint, the nature of proceedings would not change and they will continue to be treated a proceedings in a suit and not “proceeding” under the Act.

This is also the contention of Mr. Sudhir Chandra, senior counsel appearing for the Chinar Trust. He has also contended that the High Court was fully justified in dismissing that petition at the threshold particularly as the Writ Petition was directed only against a notice issued under Section 56(4) of the Act requiring the appellant to show cause why the Registration Certificate be not cancelled. The appellant, it is contended, should have submitted a reply to that notice and allowed the Registrar to dispose of the whole matter on merits particularly as the Registrar had initiated the action principally on the ground that the appellant had obtained the renewal of the Trade Mark by misrepresentation and concealment of relevant facts. Mr.Chagla, in reply, has submitted that where the action initiated by a statutory authority is wholly without jurisdiction, it can be challenged under Article 226 of the Constitution and the Writ Petition cannot be dismissed summarily. In the instant case, the Registrar, it is cintended, could not have legally acted as the Tribunal as the “Proceedings concerned” was pending before the High Court and, therefore, the High Court alone could have acted as a “TRIBUNAL” and initiated action under Section 56(4) of the Act.

Learned counsel appearing on behalf of the parties have thus tried to create a whirlpool of arguments around the work “TRIBUNAL” as defined in Section 2(1)(x) of the Act and, therefore in order to save ourselves from becoming the victim of “Vertigo” of this whirlpool at the Bar, we have, for the time being, dispassionately assumed the role of a grammarian, to consider the science of English language from the point of view of inflexion, punctuation and of course, whole syntax, as the argument of the respondent’s counsel is based, almost wholly, on the importance of “comma” and the pronouns, “which” or “whom” occurring in that definition keeping at the same time in our mind the principle Grammatical false non vitiat chartam (false grammar does not vitiate a deed) and the question whether this would also apply to statutory interpretation. But before we do it, we will first dispose of the preliminary objection relating to maintainability of the Writ Petition as filed in the High Court, allegedly, being premature and having been brought without first exhausting the alternative remedies under the Act.

Learned counsel for the appellant has contended that since suo motu action under Section 56(4) could be taken only by the High Court and not by the Registrar, contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cut down this circle of fornices whirlpool we would rely or some old decisions of the evolutionary era of the constitutional law as they still hold the field.

Rashid Ahmad vs. Municipal Board, kairana, AIR 1960 SC 163, laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting Writs. This was followed by another Rashid case, namely, K.S.Rashid & Son Vs. The Income Tax Investigation Commissioner AIR 1954 SC 207 which reiterated the above proposition and held that where alternative remedy esisted, it would be a sound exercise of discreation to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, “unless there are good grounds therefor”, which indicated that alternative remedy would not operate as an absolute bar and that Writ Petition under Article 226 could still be entertained in exceptional circumstances. Specific and clear rule was laid down in State of U.P. vs. Mohd. Nooh 1958 SCR 595 = AIR 1958 SC 86, as under : “But this rule requiring the exhaustion of statutory remedies before the Writ will be granted is a rule of policy convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies.”This proposition was considered by a Constitution Bench of this Court in A.V.Venkateswaran, Collector of Customs. Bombay vs Ramchand Sobhraj Wadhwani & Anr. AIR 1961 SC 1506 and was affirmed and followed in the following words

“The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus per-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court”.

Another Constitution Bench decision in Calcutta Discount co.Ltd. vs Income Tax Officer Companies Distt. I AIR 1961 SC 372 laid down :

“Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment. the High Court will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against Income Tax Officer acting without jurisdiction under 8.34 I.T.Act”.

Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.

That being so, the High Court was not justified in dismissing the Writ Petition at the initial stage without examining the contention that the show cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the “TRIBUNAL”. We proceed to the next question now. Section 56, under which the notice to show cause has been issued to the appellant, provides as under :

56. Power to cancel or very registration and to rectify the register –
1. On application made in the prescribed manner to a High Court or to the registrar by any person aggrieved, the tribunal may make such order as it may think fit for the cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto.

2. Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause or by any entry wrongly remaining on the register, or by any error of defect in any entry in the register, may apply in the prescribed manner to a High Court or to the Registrar, and the tribunal may make such order for making expunging or varying the entry as it may think fit.

3. The tribunal may in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of the register.

4. The tribunal, of its own motion, may after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make any order referred to in sub-section (1) or sub-section (2).

5. Any order of the High Court rectifying the register shall direct that notice of the rectification shall be served upon the Registrar in the prescribed manner who shall upon receipt of such notice rectify the register accordingly.

6. The power to rectify the register conferred by this section shall include the power to remove a trade mark registered in Part A of the register to Part B of the register. Section 56(1) provides that on an application made to the High Court or the Registrar by the person aggrieved, the Tribunal may cancel or vary the registration of the Trade Mark. Under Sub-section 4 of Section 56, this power can be exercised by the “Tribunal” suo motu. TRIBUNAL has been defined under Section 2(1) (x) as under :

“Tribunal” means the Registrar, or as the case may be the High Court before which the proceeding concerned is pending.”This definition treats “High Court” and “Registrar” both as “TRIBUNAL” for purposes of this Act. High Court has been defined in Section 2(h) as the “High Court” having jurisdiction under Section 3″ which, in its turn, provides that it shall be that High Court within the limits of whose appellate jurisdiction the office of the Trade Marks Registry referred to in each of the sub-clauses (a) to (e) is situate. We have to consider the meaning of these definitions in the context of other relative provisions of the Act so as to find an answer to the question relating to the extent of jurisdiction of the Registrar and the High Court functioning as “Tribunal”.

Now the principle is that all statutory definitions have to be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or context. That is why all definitions in statues generally begin with the qualifying words, similar to the words used in the present case, namely ’unless there is anything repugnant in the subject or context’. Thus there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in the definition section, namely ’unless there is anything repugnant in the subject or context’. In view of this qualification, the Court has not only to look at the words but also to look at the context, the collocation and the object of such words relating to such matter and interpret the meaning intended to be conveyed by the use of the words under those circumstance”. (See : Vanguard Fire and General Insurance Co. Ltd. Madras vs Fraser & Ross, AIR 1960 SC 971). Before considering the contextual aspect of the definition of “Tribunal”, we may first consider its ordinary and simple meaning. A bare look at the definition indicates that High Court and the Registrar, on their own, are not “Tribunal”. They become “Tribunal” if “the proceeding concerned” comes to be pending before either of them. In other words, if “the proceeding concerned” is pending before the High Court, it will be treated as “Tribunal”. If on the contrary, “the proceeding concerned” is pending before the Registrar, the latter will be treated as “Tribunal”. Since “Tribunal” is defined in Senction 2 which, in its opening part, uses the phrase “Unless the context otherwise requires”, the definition, obviously, cannot be read in isolation. The phrase “Unless the context otherwise requires” is meant to prevent a person from falling into the whirlpool of “definitions” and not to look to other provisions of the Act which, necessarily, has to be done as the meaning ascribed to a “definition” can be adopted only if the context does not otherwise require.

The history of legislation is more than a century old. The first legislation brought on the Statute Book was the India Merchandise Marks Act, 1889 (Act No. 4 of 1889). This was followed by the Trade Marks Act, 1940 (Act No. 5 of 1940). Both these acts were repealed by the Trade & Merchandise Marks Act, 1958. This Act follows the pattern of Trade Marks Act, 1938 of the United kingdom. Prior to the enactment of Trade Marks Act, 1940, the disputes or problems, specially those relating to infringement of trade-marks or passing-off were decided in the light of Section 54 of the Specific Relief Act, 1877, while the registration problem was tackled by obtaining a declaration as to ownership of a trade-mark under the Indian Registration Act, 1908. The present Act which, as pointed out above, as repealed the Indian Merchandise Marks Act, 1889 and Trade Marks Act, 1940, also provides in Section 129 that any document declaring or purporting to declare the ownership or title of a person to a trade-mark other than a registered trade mark, shall not be registered under the Indian Registration Act, 1908. We may now have a quick look at other relevant provisions of the Act.

Section 4 provides that Central Govt. shall appoint a person as Controller-General of Patents, Designs & Trade Marks who shall be the Registrar of Trade Marks under the Act. The functions of the Registrar, as are authorised by him, can also be performed by such other persons as the Central Government may appoint. Thus, there is an element of plurality in the sense that the functions of the Registrar can be performed by more than one person. Section 5 provides for the establishment of a Registry known as Trade Marks Registry, with a Head Office and Branch Offices at such places as the Govt. may think fit.

Under Section 6 read with Section 7 of the Act, a Register of Trade Marks, in two parts, namely, Part A and Part B, is to be maintained with the original Register kept at the Head Office of the Trade Marks Registered Trade Marks with the names, addresses and descriptions of the proprietors, and all notifications of assignments are to be entered in that Register. Section 9 indicates the requisites for registration of a Trade Mark in Part A or Part B. Sub-section (5) of Section 9 gives guidelines to the Tribunal to follow in determining one of the relevant criteria for that purpose.

There is a prohibition contained in Section 12 on the registration of a Trade Mark which is identical or deceptively similar to an already registered Mark except as provided in Sub-section (3) thereof which authorises the Registrar to permit the registration by more than one proprietor of Trade Marks which are identical or nearly resemble each other (whether any such Trade Mark is already registered or not) in respect of the same goods or description of goods subject to such conditions and limitations as he may think fit to impose. Section 10(1) provides that a trade mark may be limited wholly or in part to one or more specified colors, and any such lamination shall be taken into consideration by the “Tribunal” while deciding the distinctive character of the trade mark.

Section 17 contains the provision for “Registration of Trade Mark subject to disclaimer” and provides that the Tribunal, in deciding whether the Trade Mark shall be entered or shall remain on the register, amy require as a condition of its being on the register, that the proprietor shall either disclaim any right to the exclusive use of such part or of all or any portion of such matter, as the case may be, to the exclusive use of which the Tribunal holds him not to be entitled, or make such other disclaimer as the Tribunal may consider necessary for the purpose of defining the rights of the proprietor under the registration. Chapter III of the Act deals with the procedure for and duration of Registration. Section 18 deals with the making of an application for Registration of a Trade Mark either in Part A or Part B of the Register. The application has to be made to the Registrar though filed in the office of the Trade Mark Registry within whose territorial limits the principal place of business of the applicant, or in the case of joint applicants, whose name is first mentioned, is situate. The Registrar may either accept or refuse the application or accept it with conditions. Section 19 empowers the Registrar to withdraw his acceptance if it was given in the circumstances enumerated in clauses (a) and (b) the Section.

Where an application has been accepted either absolutely or subject to certain conditions and limitations, it has to be advertised (Sec : Section 20), though the Registrar may advertise it even before its acceptance in certain situations contemplated by that Section. Under Section 21, Notice of Opposition may be given to the Registrar by any person opposing registration and the applicant may, in reply thereto, file a counter-statement. Thereafter the Registrar is required, after giving an opportunity of hearing to the applicant and his opponent, to decide whether registration is to be permitted absolutely or subject to such conditions or limitations as he may deem fit to specify. Then comes the stage of registration of the Trade Mark under Section 23 which provides that if the application is not opposed and the period of filing “opposition” has expired or the “opposition” has been decided in favour of the applicant, the Registrar shall register the Trade Mark either in Part A or part B of the Register and issue a Certificate of Registration. Registration of a Trade Mark is done initially for a period of 7 years which can be renewed from time to time in accordance with the provisions of Section 25. The renewal can be obtained by making an application to the Registrar in the prescribed manner within the prescribed period and on payment of the prescribed fee. The renewal will be for another period of 7 years. Sub-section (3) of Section 25 provides that the Registrar, at the prescribed time before the expiration of the last registration of the Trade Mark, shall send a notice to the registered proprietor of the date of expiration and the conditions as to payment of fees upon which a renewal of registration may be obtained. If, at the expiration of the time prescribed in that behalf, those conditions have not been duly complied with, the Registrar may remove the Trade Mark from the Register. But the Trade Mark can be restored and it can be renewed provided an application is made within one year from the expiration of the last registration and provided the Registrar is satisfied that it would be just so to do. Once a Trade Mark has been removed from the Register for failure to pay the fee for renewal, it would, nevertheless, be deemed to be a Trade Mark already on the Register for a period of one year for purposes of any application for registration of another Trade Mark, unless the “Tribunal” is satisfied either :

(a) that there has been no bona fide trade use of the trade mark which has been removed during the years immediately preceding its removal; or
(b) that no deception or confusion would be likely to arise from the use of the trade mark which is the subject of the application for registration by reason of any previous use of the trade mark which has been removed.

Chapter IV of the Act deals with the effect of the registration. This Chapter deals with the rights conferred by registration, infringement of Trade Marks and also defines the acts which do not constitute infringement. Chapter V deals with assingment and transmission, while Chapter VI deals with the use of Trade Marks and registered Users.

Chapter VII deals with Rectification and Correction of the Register, which begins with Section 56, around which the bulk of arguments made by both the sides, any three, as Registrar has also addressed us has revolved. This Section also speaks of the “Tribunal”, “Registrar” and the “High Court”.

Chapter VIII deals with Certificate of Trade Marks, Chapter IX contains “Special Provisions For Textile Goods”, while chapter X deals with offences, penalties and procedure therefor. Chapter XI contains the miscellaneous provisions which, inter alia, provides that suits for infringement etc. of the Trade Marks or relating to any right in a registered Trade Mark or for passing off arising out of the use by the defendant of a Trade Mark, which is identical with or deceptively similar to the plaintiff’s Trade Mark, whether registered or unregistered, shall not be instituted in any court inferior to a district Court. (See : Section 105). Section 106 specifies the reliefs which may be granted in suits for infringement or for passing off.

Under Section 107 of the Act, any application for rectification of Register has to be made, in the circumstances specified therein, only to the High Court an not to the Registrar. The provisions of this section are quoted below :-

“107. Application for rectification of register to be made to High Court in certain cases. (1) Where in a suit for infringement of a registered trade mark the validity of the registration of the plaintiff’s trade mark is questioned by the defendant or where in any such suit the defendant raises a defence under Clause (d) of sub-section (1) of section 30 and the plaintiff questions the validity of the registration of the defendant’s trade mark, the issue as to the validity of the registration of the trade mark concerned shall be determined only on an application for the rectification of the register, and notwithstanding anything contained in section 46, sub-section (4) of section 47 or section 56, such application shall be made to the High Court and not to the Registrar.
(2) Subject to the provisions of sub-section (1), where an application for rectification of the register is made to the Registrar under Section 46 or sub-section (4) of section 47 or section 56, the Registrar may , if he thinks fit, refer the application at any stage of the proceeding to the High Court.”

Since a reference in this Section has been made to Sections 46 of the Act, they are reproduced below:-
“46. Removal from register and imposition of limitations on ground of non-use. – (1) Subject to the provisions of section 47, a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved on the ground either

(a) that the trade mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods by him or, in a case to which the provisions of section 45 apply, by the company concerned, and that there has, in fact, been no bona fide use of the trade mark in relation to those goods by any proprietary thereof for the time being up to a date one month before the date of the application; or

(b) that up to a date one month before the date of the application, a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no boan fide use thereof in relation to those goods by any proprietor thereof for the time being :
proprietor thereof for time Provided that, except where the applicant has been permitted under sub-section (3) of section 12 to register an identical or nearly resembling trade mark in respect of the goods in question or where the tribunal is of opinion that he might properly be permitted so to register such a trade mark, the tribunal may refuse an application under clause (a) or clause (b) in relation to any goods, if it is shown that there has been, before the relevant date or during the relevant period, as the case may be, bona fide use of the trade mark by any proprietor thereof for the time being in relation to goods of the same description, being goods in respect of which the trade mark is registered.

(2) Where in relation to any goods in respect of which a trade mark is registered –
(a) the circumstances referred to in clause (b) of sub-section (1) are shown to exist so far as regards non-use of the trade mark in relation to goods to be sold, or otherwise trade in, in a particular place in India (otherwise than for export from India), or in relation to goods to be exported to a particular market outside India; and

(b) a person has been permitted under sub-section (3) of section 12 to register an identical or nearly resembling trade mark in respect of those goods under a registration extending to use in relation to goods to be so sold, or otherwise trade in or in relation to goods to be so exported, or the tribunal is of opinion that he might properly be permitted so to register such a trade mark;

on application by that person in the prescribed manner to a High Court or to the Registrar, the tribunal may impose on the registration of the first-mentioned trade mark such limitations as it thinks proper for securing that registration shall cease to extend to such use.
(3) An applicant shall not be entitled to rely for the purpose of clause (b) of sub-section (1) or for the purposes of sub-section (2) on any non-use of a trade mark which is shown to have been due to special circumstances in the trade and not to any intention to abandon or not to use the trade mark in relation to the goods to which the application relates.”
“47. Defensive registration of well known trade marks :(1) Where a trade mark consisting of any invented words has become so well known as respects any goods in relation to which it is registered and has been used, that the use thereof in relation to other goods would be likely to be taken as indicating a connection in the course of trade between those goods and a person entitled to use the trade mark in relation to the first-mentioned goods, then notwithstanding that the proprietor registered in respect of the first mentioned goods does not use or propose to use the trade mark in relation to those other goods and notwithstanding anything in section 46, the trade mark may, on application in the prescribed manner by such proprietor, be registered in his name in respect of those other goods as a defensive trade mark, and while so registered, shall not be liable to be taken off the register in respect of those goods under the said section.
(2) The registered proprietor of a trade mark may apply for the registration thereof in respect of any goods as a defensive trade mark notwithstanding that it is already registered in his name in respect of those goods otherwise than as a defensive trade mark, or may apply for the registration there of in respect of any goods otherwise than as a defensive trade mark notwithstanding that it is already registered in his name in respect of those goods as a defensive trade mark in lieu in each case of the existing registration.
(3) A trade mark registered as a defensive trade mark and that trade mark as otherwise registered in the name of the same proprietor shall, notwithstanding that the respective registrations are in respect of different goods, be deemed to be and shall be registered as associated trade mark.
(4) On application made in the prescribed manner to a High Court or to the Registrar, by any person aggrieved, the registration of a trade mark as a defensive trade mark may be cancelled on the ground that the requirements of sub-section (1) are no longer satisfied in respect of any goods in relation to which the trade mark is registered in the name of the same proprietor otherwise than as a defensive trade mark, or may be cancelled as respects any goods in relation to which it is registered as a defensive trade mark on the ground that there is no longer any likelihood that the use of the trade mark in relation to those goods would be taken as giving the indication mentioned in sub-section (1).
(5) The Registrar may at any time cancel the registration as a defensive trade mark of a trade mark of which there is no longer any registration in the name of the same proprietor otherwise than as a defensive trade mark.
(6) Except as otherwise expressly provided in this section, the provisions of this act shall apply in respect of the registration of trade marks as defensive trade marks and of trade marks so registered as they apply in other case.”
Section 108 lays down the procedure and the manner in which the application for rectification shall be dealt with by the High Court. It prvides as under :-

“108. Procedure for application for rectification before a High Court (1) An application for rectification of the register made to a High Court under section 46, sub-section (4) of section 47 or section 56 shall be in such form and shall contain such particulars as may be prescribed.
(2) Every such application shall be heard by a single Judge of the High Court : Provided that any such Judge may, if he thinks fit, refer the application at any stage of the proceedings for decision to a Bench of that High Court.
(3) Where any such application is heard by a single Judge of the High Court an appeal shall lie from the order made by him on application to a Bench of the High Court.
(4) Subject to the provisions of this Act and the rules made thereunder, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), shall apply to applications to a High Court under this section.
(5) A certified copy of every order of judgment of the High Court or of the Supreme Court, as the case may be relating to a registered trade mark under this section shall be communicated to the Registrar by that Court and the Registrar shall give effect to the order of Court and shall, when so directed, amend the entries in, or rectify, the register in accordance with such order.”
Section 109 makes provision for an appeal to the High Court against any order or decision of the registrar under this Act or the rules made thereunder. The appeal is to be heard by a Single Judge with a further appeal before the Division Bench of the High Court. Sub-section (6) of Section 109 provides that in disposing of the appeal, the High Court shall have power to make any order which the Registrar could make under the Act.

Section 111 provides for the circumstances in which proceedings in a suit are to be stayed. It is quoted below :-
“111.Stay of proceedings where the validity of registration of the trade mark is questioned, etc.- (1) Where in any suit for the infringement of a trade mark – (a) the defendant pleads that the registration of the plaintiff’s trade mark is invalid; or
(b) the defendant raises a defence under clause (d) of sub-section (1) of section 30 and the plaintiff pleads the invalidity of the registration of the defendant’s trade mark; the court trying the suit (hereinafter referred to as the court), shall, –
(i) if any proceeding for rectification of the register in relation to the plaintiff’s or defendant’ trade mark are pending before the Registrar or the High Court, stay the suit pending the final disposal of such proceedings;

(ii) if no such proceedings are pending and the court is satisfied that the plea regarding the invalidity of the registration of the plaintiff’s or defendant’s trade mark is prima facie tenable, raise an issue regarding the same and adjourn the case for a period of three months from the date of the framing of the issue in order to enable the party concerned to apply to the High Court for rectification of the register.

(2) If the party concerned proves to the court that he has made and such application as is referred to in clause
(b) (ii) of sub-section (1) within the time specified therein or within such extended time as the court may for sufficient cause allow, the trial of the suit shall stand stayed until the final disposal of the rectification proceedings.
(3) If no such application as aforesaid has been made within the time so specified or within such extended time as the court may allow, the issue as to the validity of the registration of the trade mark concerned shall be deemed to have been abandoned and the court shall proceed with the suit in regard to the other issues in the case.
(4) The final order made in any rectification proceedings referred to in sub-section (2) shall be binding upon the parties and the court shall dispose of the suit conformably to such order in so far as it relates to the issue as to the validity of the registration of the trade mark.
(5) The stay of a suit for the infringement of a trade mark under this section shall not preclude the court making any interlocutory order (including any order granting an injunction directing accounts to be kept, appointing a receiver or attaching any property), during the period of the stay of the suit.”

It is in the background of the above provisions that the question relating to the jurisdiction of the “Registrar”and the “High Court”, which individually and separately constitute “Tribunal” within the meaning of Section 2(1)(x), has to be considered.

The functions and extent of jurisdiction of the registrar and that of the High Court which, incidentally, has also been constituted as the appellate authority of the Registrar, have been distinctly set out in different provisions of the Act. There are, however, certain matters for which jurisdiction has been given to the “Tribunal”which, by its definition, includes the “High Court” and the “Registrar” and therefore, the question is “can both be said to have “concurrent” jurisdiction over matters as are set out for example, in Sections 9, 10,26,45,46,47 and 56″. If the proceeding is cognisable both by the Registrar and the High Court, which of the two will have jurisdiction to entertain such proceeding to the exclusion of the other or the jurisdiction being concurrent, can the proceeding go on simultaneously before the High Court and the Registrar, resulting, may be, in conflicting decisions at the end, is a question which seems to be answered by the words “before which the proceeding concerned is pending”occuring in the definition of “Tribunal” in Section 2(1)(x) of the Act. Let us test whether the answer is correct. Section 56 contemplates proceedings of varying nature. The proceedings contemplated by Sub-section (1) relate to the cancellation of Trade Mark or varying the registration of Trade Mark, on the ground that the condition on which the registration was granted, was either violated or there was failure in observing the condition of registration. These proceedings may be entertained either by the High Court or the Registrar on the application, and, at the instance, of the “person aggrieved”.

The proceedings contemplated by Sub-section (2) of Section 56 relate to the absence or omission of an entry in the Register or an entry having been made without sufficient cause or an entry wrongly remaining on the Register or there being any error or defect in an entry in the Register. Such proceedings may also be entertained either by the Registrar or the High Court on an application made in the prescribed manner by a “person aggrieved”. The High Court or the registrar may, in these proceedings, pass an order either for making an entry, or expunging or varying the entry. In these proceedings which may be pending either before the High court or the Registrar, it would be open to either of them to decide any further question which may be necessary or expedient to decide in connection with the rectification of the Register. Obviously, this gives very wide jurisdiction to the High Court or the Registrar working as a Tribunal as the jurisdiction is not limited to the proceedings pending under Sub-section (1) or Sub-section (2) but extends also to decide, in the same proceedings, any other question which may legitimately arise in connection with the rectification proceedings.

The jurisdiction conferred on the High Court or the Registrar under Sub-section (1) or Sub-section (2) can also be exercised suo motu subject to the condition that a notice is issued to the parties concerned and an opportunity of hearing is given to them before passing any order contemplated by Sub-section (1) or Sub-section (2). The Registrar and the High Court have also been given the jurisdiction under this Section to order that a Trade Mark registered in Part A shall be shifted to Part B of the Register.

An order of rectification, if passed by the High Court, is implemented by the Registrar by rectifying the Register in conformity with the order passed by the High Court.

The extent of jurisdiction conferred by Section 56 on the Registrar to rectify the Register, is, however curtail by Section 107 which provides that an application for rectification shall, in certain situations, be made only to the High Court. These situations are mentioned in Sub-section (1) of Section 107, namely, where in a suit for infringement of the registered Trade Mark, the validity of the registration is questioned by the defendant or the defendant, in that suit, raises the defence contemplated by Section 30(1)(d) in which the acts which do not constitute an infringement, have been specified, and the plaintiff in reply to this defence questions the validity of the defendant’s Trade Mark. In these situations, the validity of the registration of the Trade Mark can be determined only by the High Court and not by the Registrar. Section 107 thus impels the proceedings to be instituted only in the High Court. The jurisdiction of the Registrar in those cases which are covered by Section 107 is totally excluded. Significantly, Section 107(2) provides that if an application for rectification is made to the registrar under Section 46 or Section 47(4) or Section 56, the Registrar may, if he thinks fit, refer that application, at any stage of the proceeding, to the High Court. Similarly, under Section 111 of the Act, in a pending suit relating to infringement of a Trade Mark, if it is brought to the notice of the Court that any rectification proceedings relating to plaintiff’s or defendant’s trade Mark are pending either before the Registrar or the High Court, the proceedings in the suit shall be stayed pending final decision of the High Court or the Registrar. Even if such proceedings are not pending either before the Registrar or the High Court, the trial court, if prima facie satisfied that the plea regarding invalidity of plaintiff’s or defendant’s Trade Mark is tenable, amy frame an issue and adjourn the case for three months to enable the party concerned to apply to the High Court for rectification of the Register. If within three months, the party concerned does not approach the High Court, the plea regarding invalidity of Trade Mark would be treated as abandoned but if such an application has been given hearing, the suit would be stayed awaiting final decision of the High Court. The finding of the High Court would bind the parties and the issue relating to the invalidity of Trade Mark would be decided in terms of those findings.

In this background, the phrase “before which the proceeding concerned is pending” stands out prominently to convey the idea that if the proceeding is pending before the “Registrar”, it becomes the “Tribunal” Similarly, if the proceeding is pending before the “High Court”, then the High Court has to be treated as “Tribunal”. Thus, the jurisdiction of the Registrar and the High Court, though apparently concurrent in certain matters, is mutually exclusive. That is to say, if a particular proceeding is pending before the registrar, any other proceeding, which may, in any way, relate to the pending proceeding, will have to be initiated before and taken up by the Registrar and the High Court will act as the Appellate Authority of the Registrar under Section 109. It is obvious that if the proceedings are pending before the High Court, the registrar will keep his hands off and not touch those or any other proceedings which may, in any way, relate to those proceedings, as the High Court, which has to be the High Court having jurisdiction as set out in Section 3, besides being the Appellate Authority of the Registrar has primacy over the Registrar in all matters under the Act. Any other interpretation of the definition of “Tribunal” would not be in consonance with the scheme of the Act or the contextual background set out therein and may lead to conflicting decision on the same question by the Registrar and the High Court besides generating multiplicity of proceedings. Learned counsel for the respondent – Chinar Trust, at this stage, invoked the Rule of Punctuation in English Grammar and contended that the definition of “Tribunal” is amply clear and requires no interpretative exercise as there is a distinction between the “Registrar” and the “High Court” inasmuch as the Registrar will have jurisdiction irrespective of the pendency of any proceeding, the High Court will have jurisdiction only when “proceeding concerned is pending before it. This he tried to show by pointing out thet the wourds “as the case may be” are placed between tow commas, one at the beginning immediately after the word “Registrar” and the other at the end, with the result that the words “Tribunal means the Registrar” stand out distinctly, while the words “High Court before which the proceeding concerned is pending” stand out separately as an independent phrase. It is contended that the words “before which the proceeding concerned is pending” will not be applicable to the Registrar and, therefore, the Registrar can exercise the jurisdiction under Section 56 irrespective of pendency of any “proceeding”.

The argument is fallacious.
Learned counsel for the Chinar Trust is trying to give a measure of importance to the punctuation mark “comma”, more than it deserves. If “comma” were that important, there, incidentally, is another “comma” obviously separates the phrase “before which the proceeding concerned is pending” from the word “High Court” with the result that this phrase becomes applicable both to “High Court” and the “Registrar”. The word “concerned” in this phrase is also of significance inasmuch as the word Tribunal has been used in different sections in relation to different proceedings. At some places in the Act, all the three words, namely, Registrar, High Court and Tribunal have been used which indicate that if the proceeding under that particular provision is pending before the Registrar then on account of that proceeding, the Registrar becomes the Tribunal. So also, if the proceeding is pending before the High Court then that proceeding makes the High Court a Tribunal. It is in that sense that the word proceeidng concerned has to be understood.

Pronoun means for-a-noun. It is defined as a word used instead of a noun. The Pronoun with which we are concerned in this case is the relative pronoun namely the pronoun WHICH which incidentally can be used in many other forms, namely as an interrogative pronoun, an interrogative adjective, or as a relative adjective. Its use is not limited to inanimate objects or animals but it can also be used for people as explained in A Practical English Grammar (A.J.Thomson and A.V. Martinet – Fourth Edition). The two Nouns, namely, the registrar and the High Court used in the definition of Tribunal are followed by the relative pronoun which and therefore the phrase before which the proceeding concerned is pending would relate to both the Nouns, namely, the Registrar and the High Court. This rule of Grammar which was sought to be pressed into aid by the learned counsel for the repondent is therefore of no use to him. Not content with the regection of the above contention, learned counsel for the respondent invoked another rule of English grammar relating to the use of pronouns which and whom and contended that if the phrase before which the proceeding concerned is pending were meant to apply to the Registrar, the Legislature would have used the pronoun whom instead of which and the phrase would have read before whom the proceeding concerned is pending.” The High Court, it is contended, is an inanimate object and, therefore, the pronoun which has been used. “Pronoun” means “for-a-noun”. It is defined as a word lused “instead of a noun”. The Pronoun with which we are concerned in this case is the relative pronoun. namely, the pronoun WHICH, which, incidentally, can be used in many other forms, namely, as an interrogative pronoun, an interrogative adjective. Its use is not limited to inanimate objects or animals but it can also be used for “people” as explained in A Practical English Grammar (A.J. Thomson and A.V.Martinet – Fourth edition). The two Nouns, namely, the Registrar and the High Court, used in the definition of Tribunal are followed by the relative pronoun which and therefore, the phrase before which the proceeding concerned is pending would relate to both the Nouns, namely, the Registrar and the High Court. This rule of Grammar which was sounght to be pressed into aid by the learned counsel for the respondent is therefore, of no use to him. Moreover, in a situation of this nature, mere rule of Grammar would not lead to correct interpretation of the definition which has to be analysed, as we have already done, in the background of those provisions in which the word Tribunal has been used together with the propose for which it has been used deeping in mind the overall scheme of the Act.

Learned counsel for the respondent than cited before us a decision of the Calcutta High Cort in Standard Pharmaceuticals vs. Dy. Registrar of Trade Marks [Appeal No. 213 of 1970 decided on 18.2.1975 by Sabyasachi Mukherjee, J. (as His Lordship then was )], in which it was inter alia, observed as under :-

…. “The definition clause under section 2(1)(x) provides as follows; “Tribunal means the Registrar or as the case may be, the High Court before whom the proceeding concerned is pending. Therefore, in order to be a tribunal the Registrar must be one before whom a proceeding is pending Counsel for the appellant contended that in section 56(1) of the Act, a proceeding could only be pending before the Registrar where there were two parties or in other words, where there was a proceeding initiated at the behest of a third party. It was contended that in this case no proceeding was pending. In my opinion, this contention also cannot be accepted. It is true that under the Act, the registrar (being the person designated) performs some function as the Registrar and the Registrar as well as the High Court perform in certain other cases certain functions of the tribunal. But both the High Court perform in certain other cases certain functions of the tribunal. But both the High Court and the Registrar perform the function of the tribunal, only in cases where proceedings are pending Proceedings in the case of statutory bodies, like this, need not be a dispute between two contending private parties. It could be a dispute between the adjudicating party and the party against whom the proceedings are taken. In this connection, reliance may be placed on the observations of the Supreme Court in the case of Associated Cement Companies Ltd. V. P.N. Sharma and another, A.I.R. 1965 S.C. 1965 at page 1999 where the Supreme Court observed “If a statutory body has power to do any act which will prejudicially affect the subject then although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi judicial act provided that the authority is required by the statute to act judicially. In such case the statutory body which adjudicates such a dispute would, in my opinion be a tribunal in terms of Section 2(1)(x) of the Trade and Merchandise Marks act, 1958. In this case, after the proceeding which was pending by the initiation of the notice dated the 9th May, 1968, the Registrar in deciding this controversy in my opinion, was acting as a tribunal and therefore, was competent to take action as a tribunal contemplated under section 56(4) of the Act.”

As against the above decision, there is a decision of a Division Bench of the same High Court in Registrar of Trade Marks and Anr. Vs Kumar Ranjan Sen & Ors. AIR 1966 Calcutta 311, in which it was laid down as under :- “It will be noticed that the word “Tribunal” as defined in clause (x)

As against the above decision, there is a decision of a Division Bench of the same High Court in Registrar of Trade Marks and Anr. Vs. Kumar Ranjan Sen & Ors., AIR 1966 Calcutta 311, in which it was laid down as under :- “It will be noticed that the word “Tribunal” as defined in clause (x) of Sub-section (1) of S. 2 does not simply mean the Registrar or the High Court but the Registrar or the High Court, only when proceedings are pending before them. It is a convenient way of describing either the Registrar of the High Court before whom proceedings were pending. Coming now to S. 56, we find that sub-section (1) refers to an application made in the Prescribed manner to a High Court or to a Registrar, but it is the Tribunal which can make an order under it of cancellation or varying the registration as the case may be. It is a mistake to think that the word “Tribunal”Stands in contra-distinction to the word “High Court” or the “Registrar”. The word “Tribunal” has been used as meaning the “High Court” or the “Registrar” before whom proceedings are pending. It is in this sense that the word “tribunal” has been used in sub-section (4). It is intended to convey that the “Tribunal”, that is to say, the High Court or the Registrar before whom proceedings are pending may, after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make an order a referred to in sub-section (1) or sub-section (2). As will appear from sub-section (5) the High Court has itself power to order a rectification of the register. In fact, the Court below, having come to the conclusion that the registration had been improperly done in violation of the provisions of the said Act, was not powerless in the matter, but could of its own motion have rectified the register, even if its conclusion as to the powers of the Deputy Registrar was right. It is clear to us that the use of the word “Tribunal” in sub-section (4) of S. 56 does not exclude the provisions of sub-section (2) of S.4. The only thing to note is that in order to attract the provisions of sub-section (4) of Section
56. proceedings must be pending before the Registrar or the persons authorised by him to exercise a particular function under sub-section (2) or S. 4.

This decision has been considered by the learned Single Judge in Standard Pharmaceutical’s case (supra). In our opinion, both the decisions are in line with the view that we have taken in the instant case on the interpretation of the definition of Tribunal. But the point before us is a little different as we are concerned essentially with the extent of jurisdiction of the “Registrar” and the High Court vis-a-vis other provisions of the Act.

In the instant case, it has already been indicated above that when the Assistant Registrar of Trade Marks dismissed appellant’s opposition to the registration of respondent’s Trade Mark by its order dated 12.8.1992, it filed an appeal in the Delhi High Court, which was admitted on 1.2.1993 and has since been registered as C.M.(Main) 414 of 1992. Thereafter, on 4.8.1993, the appellant filed a rectification petition under Sections 45 and 46 of the Act for removing the entry relating to the Trade Mark for which Registration Certificate was granted to the respondents on 30.11.1992. The appellant has also filed a suit for passing-off (Suit No. 1705 of 1994) in the Delhi High Court against the respondents in which an order of temporary injunction has been granted in favour of the appellant which has been upheld by the Division Bench of the High Court as also by this Court. In that suit, an amendment application has also been filed so as to include the ground of infringement of the appellant’s Trade Mark but that application has not yet been disposed of. It is, however, obvious that if the application is allowed, the amendments will relate back to the date of the application, if not to the date of plaint.

In view of the pendency of these proceedings in the High Court and specially in view of Section 107 of the Act, the Registrar could not legally issue any suo motu notice to the appellant under Section 56(4) of the Act for cancellation of the Certificate of Registration/Renewal already granted. The appeal is consequently allowed and the show-cause notice issued by the Deputy Registrar (respondent No.2) on 26th of Sept. 1997 under Section 56(4) of the Act is hereby quashed. The appellants shall be entitled to their costs.

The post Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors. appeared first on B&B Associates LLP.

DATE : 17 April 1998

BENCH : S.C. AGRAWAL, G.N. RAY A.S. ANAND, S.P. BHARUCHA, S.RAJENDRA BABU

WITH CIVIL APPEAL NO. 2346 OF 1981
WITH CIVIL APPEAL NO.2345 OF 1981
WITH SPECIAL LEAVE PETITION (CIVIL) No 13148 OF 1997
WITH SPECIAL LEAVE PETITION (CIVIL) NO. 2892 OF 1983
WITH SPECIAL LEAVE PETITION (CIVIL) 9252 OF 1981

G.N. RAY,J.

In all these matters a common question arises for decision as to whether n a singh cadre post reservation for the backward classes, namely, Scheduled Castes, Scheduled Tribes and other backward classes can be made either directly or by applying rotation of roster point. These are conflicting decisions of this Court on the question of such reservation in a single cadre post.

The learned counsel for the parties in all these matters have agreed in the question of law as to the constitutional validity of reservation in a single cadre post is to be decided by the constitution Bench and thereafter the cases will be placed before the appropriate Bench for disposal on merits in accordance with decision rendered by this Bench. therefore, the question of constitutional validity of reservation in a single cadre post either directly or by rotation of roster point has been considered by us and we have not taken into consideration other contentions raised in these matters.

In support of the contention that reservation can be made not only in respect of the promotional post but also in respect of a single post in a cadre, Mr. E.C. Agrawala, learned counsel appearing for the appellant in CA No. 2346/81, Mr. Puri, learned counsel appearing for the appellant in CA No. 2345 of 1981, Mr. R.K. Jain, learned senior counsel appearing for the Intervenor in the review petition filed in CA No. 3175 of 1997 on behalf of the Scheduled Castes and scheduled tribes Employees Welfare Association, Post Graduate Institute of medical Education and Research, Chandigarh, and Mr. Andhyarujina, learned Solicitor General appearing for the appellant in SLP [c] No. 13148 of 1997 for the petitioner Union of India have made elaborate submissions. Mr. kapil Sibal, learned senior counsel appearing in support of the review petition in CA No. 3175 of 1997 has opposed the contention that a reservation can be made in respect of a single post cadre. Other learned counsel appearing in these matters have adopted the rival contentions, without advancing any separate argument.

Mr. Kapil Sibal has submitted that there cannot be any reservation either for initial appointment or for an appointment on promotion in respect of a single post cadre either directly or by the device of rotation or roster. Mr. Sibal has contended that the very concept of carry forward or the principle of roster is alien to a single post cadre. he has also contended that the principle of carry forward meaning thereby carrying forward reservation presupposes existence of multi posts cadre. If there is only one post in a cadre, the vacancy for such single post being filled up, there will be no occasion for carrying forward reservation for filling up such vacancy. Mr. Sibal has also contended that the rationale of reservation under Article 16(4) of the constitution is founded on the inadequacy of representation of a class in the service under the state. The question of adequacy of representation does not and cannot arise in a single post cadre because only one person can be accommodated against the single post, leaving no scope for adequate representation of any particular class in such single post.

Mr. Sibal has contended that the impugned judgment cannot be supported because (a) reservation of super speciality is against the decision of a Nine Judges’ Bench India and Ors. (1992 Supp. (3) SC 217), and (b) no reservation in a single cadre post is permissible in law. Mr. Sibal has submitted that both in the impugned judgment Madhav and Anr. (1997 (2) SCC 332) on which reliance has been made in the impugned judgment, the ratio in the [1973] INSC 185; (1974 (1) SCC 87) was wrongly appreciated and the ratio was wrongly stated. Mr. Sibal has drawn the attention of the Court to the observations of Justice Reddy speaking for majority decision on Article 335 of the constitution as contained in paragraph 112 of the decision in Indra Sawhney’s case which are as follows:-

“While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level (in the hierarchy) at which they obtain, merit as explained hereinabove, alone counts. in such situations it ma not be advisable to provide for reservations. for example, technical posts in research and development organisations/ departments/institutions, in specialities and super-specialities in medicine, engineering and other such courses in physical sciences and mathematics, in defence services and in the establishments connected therewith. Similarly, in the case of posts at the higher echelons e.g. professors (in Education), Pilots in Indian Airlines and Air India, scientists and Technicians in nuclear and space application, provision for reservation would not be advisable.

x x x Be that as it may we are of the opinion that in certain services and in respect of certain posts, application of the rule of reservation ma not be advisable for the reason indicated hereinbefore. Some of them are : (1) Defence Services including all technical posts therein but excluding civil posts. () All technical posts in establishments engaged in production of defence equipment.

(3) Teaching posts of professors – above if any, (4) Posts in super specialities in Medicine, engineering and other scientific and technical subject. (5) Posts of pilots (and co-pilots) in Indian Airlines and air India. The list given above is merely illustrative and not exhaustive. It is for the Government of India to consider and specify the service and posts to which the Rule of reservation shall not apply but on that account the implementation of impugned office Memorandum dated 13th August, 1990 cannot be stayed or withheld.

We may point out that the services posts enumerated above, on account of their nature and duties attached, are such as call for highest level of intelligence, skill and excellence. Some of them are second level and third level posts in the ascending order. hence, they form a category apart. Reservation therein may not be consistent with “efficiency of administration” contemplated by Art. 335.

We may add that we see no particular relevance of Article 38() in this context. Article 16(4) is also a measure to ensure equality of status besides equality of opportunity.”

Mr. Sibal has also submitted that the reservation for the socially, economically and educationally backward classes is made so that the members of such backward classes do not fail to get adequate representation in public employment on account of facing open competition. but such reservation cannot be and should not be made for posts in higher echelons where merit and expertise are essential and also necessary for discharging the duties and responsibilities of such positions in higher echelons of service. Mr. Justice Reddy in the majority decision, which was also concurred by Justice Pandian, has pointed out that there are some services and positions where either on account of the nature of duties attached to them or the level in the hierarchy at which they obtain, merit alone counts. In such situations, it may not be advisable to provide for reservation and in that context, by way of illustration, enumerated certain positions including the technical posts in the Establishment engaged in Research and Development, the teaching posts of Professors and above, the posts of super-specialities in Medicine, Engineering and other Scientific and Technology subjects, and also posts of pilots and co-pilots in Indian Airlines and Air India. Mr. Sibal has submitted that by and large, in the higher echelons of service, there is a single post cadre. The appointment to the posts of Professors or Readers in the super-speciality of Medicine in an advanced institution like the Post Graduate Institute of Medical Research & Education in Chandigarh appointments must be made strictly on the basis of selection on merits and any attempt of reservation by whatever method will not only be against law laid down by this court but also against the larger interests of the country.

Mr. Sibal has contended that in M.R. Balaji & Ors. v. State of Mysore (1963 Supp. (1) SCR 439) this Court struck down the order by which 68% of seats in educational institutions were reserved for the members of Scheduled Castes and Scheduled Tribes and other educationally backward classes. This Court did not suggest any percentage which should be reserved for such backward classes but indicated that the reservation has to be made keeping in mind the interests of the community as a whole and such percentage of reservation would be less then 50%. How much less of 50% is to be reserved, would however depend on the facts and circumstances of a given case.

Mr. Sibal has also submitted tat in the Constitution Bench decision of this Court in T.Devadasan v. The Union of India & Anr. [1963] INSC 182; (1964 (4) SCR 680), the majority view is that in order to effectuated the guarantee contained in Article 16(1), each year of recruitment is to be considered separately by itself for the reservation for backward classes. In Arati Ray Choudhury’s case (supra) a Constitution Bench of this Court has clearly held that the reservation for backward community should not be so excessive as to create a monopoly or to disturb unduly the legitimate claim of other communities. It has also been specifically indicated in the said decision that if there are two vacancies to be filled up in a particular year, not more than one vacancy can be treated as reserved. In the decision in Arati Ray Choudhury’s case, the earlier decision in M.R. Balaji’s case was noticed and followed and no departure from the decision in Devadasan’s case was made.

Mr. Sibal has submitted that in Dr. Chakradhar Paswan v. State of Bihar & Ors. (1988 () SCC 14) after relying on the decisions in Arati Roy Choudhury, M.R. Balaji and Devadasan’s cases, it has been held that for implementing 50-point roster, isolated and separate posts in different specialities cannot be clubbed together. It has also been held that reservation of posts by applying the roster can be made only where there are more than one post and reservation of only one post cannot be made because such reservation would amount to 100% reservation thereby violating Article 16(1) and 16(4) of the Constitution.

Mr. Sibal has submitted that the three-Judges’ Bench decision in Madhav’s case (supra) is the principal judgment which has taken a contrary view by holding that even in case of a single post cadre, reservation can be made by applying the principle of rotation and by that process can avoid the bar of reservation of 100%. Such decision is based on a wrong reading of the decision in Arati Roy Choudhury’s case and on an erroneous appreciation of Articles 16(1), 16(4) and 16(4-A) of the Constitution. The impugned decision in the case of Post-Graduate Institute of Medical Education & Research has been made by relying on the decision in Madhav’s case and following the reasonings contained in the said decision. Therefore, the said decision cannot be sustained and the impugned judgment should be set aside by allowing the review petition.

Mr. E.C. Agrawala, learned counsel for the appellant in C.A. No. 346/1981, has however submitted that the principle of carry forward in a single post cadre is a device which serves the purpose of reservation for the backward classes, consistent with the Directive Principles of the Constitution and the policy of reservation enshrined in the constitution. Such principle of carrying forward in a single post by applying the rotation of roster, affords opportunities for getting appointment of the members of backward classes on some occasions but throwing such appointment for open competition on other occasions by de-reserving the vacancy on such occasions. If such principle of rotation of roster is not applied in the case of single post cadre, the very purpose of reservation under Article 16(4) will be made nugatory. Mr. Agrawala has submitted that since some observation was made against reservation to a promotional post in the decision in Indra Sawhney’s case, sub Article 4 A of Article 16 has been incorporated by the 77th Amendment of the Constitution. Such amendment clearly reflects the anxiety of the Legislature to ensure reservation at all stages of public employment including promotional posts. Mr. Agrawala has submitted that in Arati Roy Choudhury’s case, the Constitution Bench upheld the appointment of a member of the Scheduled Caste Scheduled Tribe which was reserved for such category even though at the relevant year, there was only one vacancy to be filled up in respect of the post of Head Mistress. Therefore, it will not be correct to contend that the Constitution Bench in Arati Ray Choudhury’s case has not upheld reservation of a single vacancy in the cadre in a particular year by applying the principle of roster. Mr. Puri, learned counsel appearing for the appellant in CA 2345 of 1981 has also made similar submissions.

Mr. RK Jain, learned senior counsel appearing for the intervenors in the review petition in the case of Post Graduate Institute of Medical Education and Research has submitted that there is no Government order to the effect that reservation in a single cadre post to be excluded. If, therefore, there is no prohibition under any law for reservation of a single post and if the Government gives effect to Article 16(4) of the Constitution in a single post cadre which helps the case of social justice, consistent with the Directive Principles of the Constitution, this Court should be slow to react against such reservation. He has also supported the contention of Mr. Agrawala that by rotation of roster, the device of 100% reservation is avoided. At the same time, such rotation gives opportunity for appointment of members of socially backward classes in the higher echelons of service even when the post is a single post cadre. Mr. Jain has submitted that in the matter of implementation of rotation of roster in a single post cadre, even if the other view against such rotation is a possible view, such view should not be accepted because in the matter of a course of action which advances the cause of social justice, the view in favour of furtherence of social justice is to be preferred. Mr. Jain has also submitted that reservation is not to the post or the vacancy but reservation must be viewed as a measure of giving adequate opportunity in public employment to the socially and economically backward classes, consistent with Article 16(4) and 16(4)(A) of the Constitution and the Directive Principles. Mr. Jain has submitted that Article 16 does not speak of any post or vacancy but speaks of equality of opportunity in public employment.

Mr. Jain has also submitted that in Chakradhar Paswan’s case (supra), the ratio in Arati Ray Choudhury’s case was not appreciated and followed. Referring to the decision in Indra Sawhney’s case, Mr. Jain has submitted that in Indra Sawnhey’s case the ratio in Arati Ray Choudhury’s case or in Paswan’s case was not considered. Therefore, the decision in Indira Sawhney’s case is not an authority for the issues involved in the case under consideration. Mr. Jain has submitted that the mechanism of roster has been evolved to balance justice for all segments of the society so that in the higher echelons of service, a single post is also made available to the backward classes by reserving such post only periodically on the basis of rotation of the roster point. Such mechanism does not offend any provision of the Constitution. He has submitted that the three Judges’ Bench in Madhav’s case has analysed all the decisions having relevance on the question of reservation of a single post cadre, and has upheld such reservation in a single post cadre by applying the roster. Therefore, the impugned decision in the Post Graduate Institute of Medical Education and Research Chandigarh, does not warrant any interference by this Court.

Mr.Andhyarujina, the learned Solicitor General has also supported the reservation of a single post cadre with the aid of rotation of roster. He has invited in attention of the Court to Office Memorandum No. 3601//96-Estt. (Res) issued by the Ministry of personnel, Public Grievances and Pension (Department of Personnel and Training) of the Government of India in respect of reservation roster for implementation of the Supreme Court judgment in R.K. Sabharwal and ors. Vs. State of Punjab and Ors. (1995 (2) SCC 745). After indicating in short, the purport of the decision of this Court in the said case, it has been indicated in the said Office Memorandum that “with a view to bringing the policy of reservation in line with the law laid down by the supreme Court. it has been decided that the existing 200 point, 40 point and 120 point vacancy-based rosters shall be replaced by post based rosters. All the Ministries/Departments and concerned authorities are requested to prepare the respective rosters based on the principles elaborated in the Explanatory Notes given in Annexure – 1 to this O.M. and illustrated in the Model Rosters annexed to this O.M. as Annexure-II, III and IV. Similarly, the concerned authorities may prepare rosters to replace the existing 100 point rosters n respect of local recruitment to Group C and D posts on the basis of the same principles.”

Paragraph 4 of the said O.M. contains the principles for preparing the rosters elaborated in the Explanatory Notes. Clause (e) of the said paragraph 4 indicating the principles for preparing the rosters is relevant for consideration in this case and the same is to the following effect:

“In small cadres of upto 13 posts, the method prescribed for preparation of rosters does not permit reservation to be made for all the three categories. In such cases, the administrative Ministries/Departments may consider grouping of posts in different cadres as prescribed in this Department’s O.M. No. 42/21/49-NGS dated 28.1.1952 and subsequent orders reproduced at pages 70 and 74 of the Brochure on Reservation for Scheduled Castes and Scheduled Tribes (Eighty Edition) and prepare common rosters for such groups. In the event it is not possible to resort to such grouping the enclosed rosters (Appendices to Annexures-II, III and IV) for cadre strength upto 13 posts may be followed. The principles of operating these rosters are explained in the explanatory notes.

Appendix to Annexure III contains the model roster for promotion in the cadre strength up to 13 posts; whereas Appendix to Annexure IV contains the roster for direct recruitment otherwise than through open competition for cadre strength upto 13 posts. Charts indicating the Appendix to Annexure III and the Appendix to Annexure IV are set out as hereunder:

Cadre Initial 1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 11th 12th 13th

1. UR UR UR UR UR UR SC UR UR UR UR UR UR ST
2. UR UR UR UR UR SC UR UR UR UR UR UR ST
3. UR UR UR UR SC UR UR UR UR UR UR ST
4. UR UR UR SC UR UR UR UR UR UR ST
5. UR UR SC UR UR UR UR UR UR ST
6. UR SC UR UR UR UR UR UR ST
7. SC UR UR UR UR UR UR ST
8. UR UR UR UR UR UR ST
9. UR UR UR UR UR ST
10. UR UR UR UR ST
11. UR UR UR ST
12. UR UR ST
13. UR ST

Note: For cadres of 2 to 13 posts the roster is to be read from entry 1 under column Cadre Strength till the last post and then horizontally till the last entry in the horizontal row i.e. “L”

2. All the posts of a cadre are to be earmarked or the categories shown under column initial appointment while initial filling up will be by the earmarked category, the replacement against any of the post in the cadre shall be by rotation as shown horizontally against the last post of the cadre.

3. The relevant rotation by the indicated reserved category could be skipped over if it leads to more then 50% representation of reserved category.

Roster for direct recruitment otherwise than through open competition for cadre strength upto 13 posts. Cadre Initial 1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 11th 12th 13th

1. UR UR UR OBC UR UR SC OBC UR UR UR OBC SC ST
2. UR UR OBC UR UR SC OBC UR UR UR OBC SC ST
3. UR OBC UR UR SC OBC UR UR UR OBC SC ST
4. OBC UR UR SC OBC UR UR UR OBC SC ST
5. UR UR SC OBC UR UR UR OBC SC ST
6. UR SC OBC UR UR UR OBC SC ST
7. SC OBC UR UR UR OBC SC ST
8. OBC UR UR UR OBC SC ST
9. UR UR UR OBC SC ST
10. UR UR OBC SC ST
11. UR OBC SC ST
12. OBC SC ST
13. SC ST

Note 1. For cadres of 2 to 13 posts the roster is to be read from entry 1 under column cadre strength till the last post and then horizontally till the last entry in the horizontal tow i.e. like “L”

2. All the posts of a cadre are to be earmarked for the categories shown under column initial appointment. While initial filling up will be by the earmarked category, the replacement against any of the post in the cadre shall be by rotation as shown horizontally against the last post of the cadre.

3. The relevant rotation by the indicated reserved category could be skipped over it leads to more than 50% representation of reserved category.

Referring to such model roster, the learned Solicitor General has submitted that in case of promotion in a single post cadre, for the initial recruitment, the post will remain ‘unreserved’. Similarly, for the 1st 2nd 3rd 4th 5th subsequent vacancies in such single cadre post, such posts shall be treated as unreserved but for the 6th subsequent vacancy, the post will be reserved for scheduled castes. Again from 7th to 12th subsequent vacancy will be treated as unreserved but the 13th vacancy will be treated as reserved for Scheduled Tribes. So far as the roster for direct recruitment, otherwise than through open competition, the Appendix to Annexure IV indicates that if the cadre strength is only one then the initial recruitment and the first and second successive recruitment will be made on the basis of open competition but the third successive vacancy will be reserved for members of the backward classes. The fourth successive vacancies will be treated as unreserved; sixth successive vacancy will be reserved for the members of Scheduled Castes; 7th successive vacancy shall be reserved for members of other backward classes; 8th, 9th and 10th successive vacancies will be filled up by open competition but the 11th successive vacancy shall be reserved for OBCs’, the 12th for scheduled castes and 13th for scheduled tribes.

The learned Solicitor General has further submitted with reference to the aforesaid Charts, that the Charts have been prepared for balancing the felt need for reservation of single cadre post, usually in the higher echelons of service in such a manner that the opportunities for employment are shared by the members belonging to the reserved categories and also by the other members i.e. members not belonging to reserved categories. According to him, if the vacancies are filled up in respect of single post cadre by following the aforesaid Charts, the interests of socially and economically backward classes and also other members of the community at large will be met without seriously affection the interests of either the members belonging to reserved classes or the members not belonging to any of the reserved categories. Under such mechanism, only of certain occasions the vacancies are to be filled up by treating such vacancies ‘reserved’ for members of a particular class of reserved categories, namely, scheduled castes, scheduled tribes and other backward classes but on other occasions the post in the single cadre will not be treated as reserved.

The learned Solicitor has submitted that the constitutional validity of reservation for socially and economically backward classes has been upheld by this Court. The learned Solicitor has also submitted that after the judgment of this Court in R.K. Sabharwal’s case suitable directions have been issued relating to rotation of roster in conformity with the law laid down by this Court. He has submitted if a reference is made to the Chart containing the model roster for appointment by promotion for a single cadre post, it will be crystal clear that the initial recruitment is unreserved and out of subsequent 13 vacancies, only 7th and 13th vacancies are meant for members of scheduled castes and scheduled tribes. Similarly the roster for direct recruitment otherwise than by promotion it is indicated that if it is a single post cadre then not only the initial recruitment but the first and second successive recruitment will be treated as unreserved. Similarly, the 4th, 5th, 8th, 9th and 10th successive vacancies will also be treated as ‘unreserved’ but the 3rd, 6th, 7th, 11th, 12th, and 13th will be kept reserved for members of other backward classes, scheduled castes and scheduled tribes respectively. The learned Solicitor has submitted that such device of appointment by rotating the roster fulfils the felt need of reservation and also eschews the vice of reservation beyond 50% for the members of the reserved classes. Since the post is a single post in the cadre, unless such device is adopted there will be no occasion for reservation of such post at any point to time.

The learned Solicitor has also submitted that in Arati Roy Chouhdry’s case, the Constitution Bench has approved the action taken in filling up of a single vacancy which occurred in a particular year for the post of Head Mistress by applying the rotation of roster, because such rotation of roster served the avowed purpose of reservation by delicately balancing the interests of the members of the reserved classes and other members of the community not belonging to any reserved class. The learned Solicitor has further urged that the decision of the three Judges’ Bench in Madhav’s case has indicated the correct principle by giving very cogent reasons and such decision does not offend any of the provisions of the Constitution and does not come in conflict with the decisions of the larger Bench of this Court. Therefore, no interference is called for against the decision in madhav’s case and the other decisions rendered by following the decision in Madhav’s case.

In order to appreciate the rival contentions of the parties, it would be appropriate to refer to the Constitution Bench decisions of this Court made in M.R.

Balaji, T. Devadasan and Arati Ray Choudhary’s cases (supra). In Arati Ray Choudhury’s case, decision in Balaji and Devadasan were referred to and followed. Since both the sides have relied on the decisions in Arati Ray Choudhury’s case, it will also be appropriate to consider the decision in Arati Ray Choudhury’s case in some detail.

In Balaji’s case, the Constitution Bench has held that the reservation should be allowed to advance the prospects of weaker sections of the society, but while doing so, care should be taken not to exclude admission to higher educational standards of deserving and qualified conditions of other communities. It has also been indicated that reservation under Arts. 15(4) and 16(4) of the constitution must be within a reasonable limit. The interests of the weaker sections of the society, which are a first charge on the States and the Centre, have to be adjusted with the interests of the community as a whole. The objective of Art. 15(4) is to advance the interests of the weaker elements in society. If a provision under Art. 15(4) ignores the interests of the society that is clearly outside the purview of Art. 15(4). It is therefore, quite evident that the Constitution Bench in Balaji’s case has clearly indicated that in giving effect to reservations for the Scheduled Castes, Scheduled Tribes and other backward classes, a balance is to be struck so that the interests of the backward classes and the members of the scheduled castes and scheduled tribes are properly balanced with the interests of the other segments of the society, and in order to safeguard the interests of the reserved classes the interest of the community as a whole can not be ignored. In Devadasan’s case (supra), the majority decision of four Judges (Justice Subba Rao dissenting) was to the effect that the carry-forward rule as a result of which the applicants belonging to Scheduled Castes or Scheduled Tribes could get more than 50% of the vacancies to be filled up in a particular year, is unconstitutional. It has also been indicated that Art 14 will not be infringed if certain proportion of appointments of the State in order to provide the backward classes an opportunity equal to that of the members of more advanced classes is made, provided that the reservation is not so exercised which would amount to practically deny a reasonable opportunity of employment to the members of the other communities. It was indicated that under Art, 16 (4) of the Constitution, reservation of a reasonable percentage for the Scheduled Castes and Scheduled Tribes is valid and within the competence of the States or the Centre. But it necessary that a reasonable balance between backward classes and other members of the society is to be struck and maintained. In the decision of Devadasan’s case (supra) reliance was also placed on the decision in Balaji’s case and another constitution Bench decision of this court in General Manager S.E.Railway Vs. Rangachari (1962 (2) SCR 586). In the majority decision in Rangachari’s case, it has been held that Arts. 16(1) and 16(2) are intended to give effect to Arts. 14 and 15 of the Constitutional code of guarantees and supplement each other. Art. 16(1) should, therefore, be construed in a broad and general way, and not in pedantic and technical way. When so construed, matters relating to employment cannot mean merely matters prior to the act of appointment nor can ‘appointment to any office’ mean merely the initial appointment but must include all matters relating to employment, whether prior or subsequent to the employment, that are either incidental to such employment or form part of its terms and conditions.

The short fact in Arati Ray Choudhury’s case is that the Railway Board prepared a Roster in 1964 by which 12.5% of the vacancies were reserved for Scheduled Castes and 5% for Scheduled Tribes. it was also mentioned that if there would be only a single vacancy then it should be treated as unreserved and if on account of that a reserved vacancy was to be treated as unreserved then the reservation would be carried forward to the subsequent two recruitment year. In 1966, a vacancy of Headmistress was treated as unreserved on this basis. Another vacancy arose in January, 1969 and the four Assistant Mistresses were called for selection. One of the respondent challenged the selection on the ground that the post should be treated as reserved for Scheduled Caste candidate and such contention was accepted by the High Court. In 1971 the Railways decided to hold a selection to form a panel of two candidates for filling up one post reserved for Scheduled Caste and another to cover unforeseen requirements. At that stage, a writ petition was filed challenging such decision of the Railway Administration and an order of injunction was issued in such writ proceeding. In spite of this, the said respondents was called by the Selection board. The writ petition was ultimately dismissed not on merits but on the ground that such writ petition was barre by the principle of res judicata. This Court however held that since the previous writ petition was not decided on merits, the principle of res judicata or analogous to it was not attracted. Therefore, the Court was competent to consider the case on merits. In Arati Ray Choudhury’s case, reference was made to the decisions of Constitution Bench in Balaji’s case. Relying on the decision’s case the constitution Bench in Arati Ray Choudhury’s case has held that in Balaji’s decision, this Court had struck down as unconstitutional an order by which 68% of the seats in educational institutions were reserved for Scheduled Castes and Scheduled Tribes and other educationally and socially backward classes. It was indicated in Arati Ray Choudhury’s case that following the decision in Balaji’s case, in the majority decision in Devadasan’s case it was held that in order to effectuate the guarantee contained in Article 16(1), each year recruitment has to be considered separately by itself and “the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities.”

(emphasis added)

It has also been indicated in Artai Ray Choudhury’s case that the Ministry of Home Affairs issued a Memorandum modifying the carry forward rule so as to comply with the decision in Devadasan’s case. By para 2 of the Memorandum, the carry-forward rule was amended by providing that “in any recruitment year, the number of normal reserved vacancies and the ‘carried forward reserved vacancies together shall not exceed 45% of the total number of vacancies.” It was however indicated in the said Memorandum that if there be only two vacancies, one of them may be treated as a reserved vacancy. But if there be only one vacancy it shall be treated as unreserved (emphasis added). The surplus above 45% shall be carried forward to the subsequent year of recruitment, subject however to the condition that the particular vacancies carried forward do not become time barred due to their becoming more than two years old. It has been specifically held in Arati Ray Choudhury’s case that in the first place each year of recruitment is to be considered separately and by itself as held in Devadasan’s case (supra) so that if there are only two vacancies to be filled in a particular year of recruitment, not more than one vacancy can be treated as reserved. Secondly, if there be only one vacancy to be filed in a given year of recruitment, it has to be treated as unreserved, irrespective of whether it occurs in the Model Roster at a reserved point. the appointment then is not open to the charge that the reservation exceeds 50% for if the very first vacancy in the first year of recruitment is in practice treated as a reserved vacancy, the system may be open to the objection that the reservation not only exceeds 50% but is, in fact, cent per cent. But, if on this account, that is to say, if on account of the requirement that the first vacancy must in practice be treated as unreserved even if it occurs in the Model Roster at a reserved point, the reservation can be carried forward to not more than two subsequent year of recruitment. Thus, if two vacancies occur, say , within an initial span of three years, the first vacancy has to be treated as an unreserved vacancy and the second as reserved. It has not been held in Arati Ray Choudhury’s case that for a single post there can be a reservation for Scheduled Castes, Scheduled Tribes or other backward classes. What has been held in Arati Ray Choudhury’s case is that when there was a vacancy at Adra, according to the Model Roster, such vacancy was a reserved point and therefore the other vacancy was strictly a reserved vacancy but there being only one vacancy in that particular year of recruitment, such vacancy had to be treated as unreserved and therefore appointment was given of smt. Biswas, who was not a reserved candidate. Therefore, it had to be compensated by carrying forward the reservation in two subsequent recruitment year when the vacancy in Kharagpur in the financial year 1968-69 arose w.e.f. December 31, 1968.

In Dr. Chakradhar Paswan’s case (supra) in the State Directorate of indigenous Medicines, Bihar, initially there three Class I posts for (1) Director of Indigenous Medicines, (2) Deputy Director (Homeopathic) and (3) Deputy Director (Unani). Later the post of Deputy Director (Ayurvedic) had also been added. The post of Director was the highest in the Directorate; being the Director of Indigenous Medicines as a whole and not of any particular speciality of Indigenous Medicines.

By a Circular dated November 8, 1975, the State Government prescribed a 50 point roster to implement the policy of reservation to posts and appointments for members of the backward classes under Article 16(4). It was laid down that if in any grade, there is only one vacancy for the first time, then it will be deemed to be unreserved and for the second time also, if there be only one vacancy, then it will be deemed to be reserved”. For the purpose of determining the quantum of reservation according to the roster, the Government grouped together all the Class I posts viz. the posts of Director as well as of Deputy Directors and as the post of the Director had already been filled up treating it to be unreserved, the second post viz. the Deputy Director (Homeopathic) was treated as reserved. Accordingly, the State Public Service commission issued advertisement inviting applications from Scheduled Castes candidates for selection to the same posts and ultimately the State Government appointed a member of Scheduled Caste to the post of Deputy Director (Homeopathic). A general candidate thereafter filed a writ petition before the High Court challenging the advertisement issued by the State Public Service Commission and also the consequent order of appointment. The High Court allowed the petition and quashed the impugned advertisement and the appointment order. Such decision of the High Court was assailed before this Court in Dr. Chakradhar Paswan’s case. The appeal was dismissed by this Court by holding that in service jurisprudence, he term ‘cadre’ has a definite legal connotation. It is not synonymous with ‘service’. It is open to the Government to constitute as many cadres in any particular service as it may choose according to the administrative convenience and expediency and it cannot be said that the establishment of the Directorate constituted the formation of a joint cadre of the Director and the Deputy Directors because the post are not interchangeable and the incumbents do not perform the same duties or carry the same responsibilities or draw the same pay. The posts of the Director and those of the Deputy Directors constitute different cadres of the service. The first vacancy in the cadre of Deputy Directors was that of the Deputy Director (Homeopathic) and it had to be treated as unreserved, the second reserved and the third unreserved. Therefore, for the first vacancy of the Deputy Director (Homeopathic), a candidate belonging to the Scheduled Caste had, therefore, to compete with other. Relying on the decision in Balaji’s case, it was held in Chakradhar’s case that once the power to make reservation in favour of Scheduled Castes and Scheduled Tribes is exercised, it must necessarily follow that for the purpose of vacancies for which reservation has been made, must be brought into effect and in order to do full justice, a carry forward rule must be so applied that in any particular year there is not more than 50% reservation. The whole concept of reservation for application of the 50 point roster is that there are more than one post, and the reservation can be up to 50%. If there is only one post in the cadre, there can be no reservation with reference to that post either for recruitment at the initial stage or for filling up a future vacancy in respect of that post. A reservation which would come under Article 16(4), presupposes the availability of at least more than one post in that cadre. No reservation could be made under Article 16(4) so as to create a monopoly. Otherwise, it would render the guarantee of equal opportunity contained in Article 16(1) and (2) wholly meaningless and illusory. The reservation of the post of Deputy Director (Homeopathic) amounted to 100% reservation which was impermissible under Article 16(4) as otherwise it would render Article 16(1) wholly elusive and meaningless. Article 16(4) is an exception to Article 16(1) and (2) and therefore the power to make a special provision for reservation of posts and appointments in favour of the backward classes must not be so excessive which would in effect efface the guarantee of equal opportunity in the matter of public employment or at best make it illusory. Reference was also made in Chakradhar’s case to the decision in Arati Ray Choudhury’s case by indication that in the facts of that case when the open class had reaped a benefit in 1966-67 when a reserved vacancy was treated as unreserved by the appointment of an open candidate, if the carry forward rule had to be given any meaning, the vacancy had to be carried forward for the benefit of Scheduled Castes and Scheduled Tribes until the close of the financial year 1968-69. It was pointed out in Chakradhar’s case that the decision in Arati Ray Choudhury’s case turned on the carry forward rule and such decision was clearly distinguishable and the same does not support reservation in a single cadre post.

The decision in Chakradhar Paswan’s case that for a single post cadre no reservation can be made for the backward classes has also been followed in Chetana Dilip Motghare Vs. Bhide Girls’ Education Society (1995 Supp. 1 SCC 157) and it has been held in the said decision that when the post is a solitary post in the cadre, the roster and carry forward scheme underlying any reservation policy cannot apply. A contrary view, however, has been taken in the decision of State of Bihar and Ors. Vs. Bageshwari Prasad and Anr. (1995 Supp. 1 SCC 432), Shri Suresh Chandra Vs. Shri J.B. Agarwal and others (JT 1997 (5) SC 72), and later on in a three Judges’ Bench decision in Union of India and Anr. Vs. Madhav (1997 (2) SCC 332). Following the said three Judges’ Bench decision in Madhav’s case, reservation in a single post cadre by rotation of roster point has been upheld in Union of India and others Vs. Brij Lal Thakur (JT 1997 (4) SC 195) and the decision rendered in the case of Post Graduate Institute of Medical Education Research Vs. Faculty Association and others. The later decision is the subject matter of challenge in the Review Petition before us in C.A. No. 3175 of 1997.

Since the decision in Madhav’s case by a three Judges’ Bench upholding the reservation for the backward classes even in single post cadre on the basis of rotation of roster point is the main decision, when followed in Post Graduate Institute of Medical Research case, we propose to consider the decision in madhav’s case in some detail. The brief facts in Madhav’s case may be indicated as follows:

In the national Savings Scheme Service, only one post of Secretary was available. the Government applied the rule of reservation to that post by rotation the vacancies in accordance with the 40-point roster. When point No. 4 vacancy in that post reserved for Scheduled Tribe, was filled by promoting an ST candidate from the post below, such promotion was set aside by the Central Administrative Tribunal on the ground that the post of Secretary being a single point post, granting of reservation was unconstitutional. The correctness or the said decision was assailed in Madhav’s case.

It has been held in Madhav’s case that (i) appointment to an office or post under the State is one of the means to render socio-economic justice; (ii) Article 16(4-A) of the Constitution introduced in 1995 by the 77th Amendment of the constitution, has resuscitated the objectives of the Preamble to, and Articles 46 and 335 of the constitution of India to enable the Dalit and Scheduled tribe employees to improve excellence in higher echelons of service and a source of equality of opportunity in the matter of social and economic status; (iii) Parliament has removed the lacuna pointed out by the Supreme Court in Indra Sawhney’s case (supra) that Article 16(1) and 16(4) do not apply to appointment by promotion but apply to initial appointment. By the 77th Amendment of the constitution, the legal position enunciated in Rangachari’s decision has been restored and reservation of promotion to 50% quota as per the Indra Sawhney’s case is available to members of Scheduled Castes and Scheduled Tribes; (iv) the carry forward scheme has been upheld in Indra Sawhney’s case; ((v) reservation could be provided even to the isolated posts on the basis of the rule of rotation by relying on the decision in Arati Ray choudhury’s case; (vi) extension of reservation is not unconstitutional. On the other hand, such scheme provides opportunity and facilities to Scheduled Castes and Scheduled Tribes for being considered for promotion to hold single post consistent with equality of opportunity on par with others; (vii) In Paswan’s case even though it was held that a single post cannot be reserved because such reservation would amount to 100% reservation, the question whether the single post reservation by rotation could be granted and whether it would be violative of Article 16(1) was not gone into and such question has been kept open. In Arati Ray Choudhury’s case, the application of rule of carry forward and appointment by rotation of roster in a single post has been approved. (viii) In Sabharwal’s case (supra), a Constitution Bench considered whether reservation as per the roster for the purposes of promotion could be valid and consistent with Article 16(1) of the constitution and held in favour of such reservation (ix) Smt. Chetana Dilip Motghare v. Bhide Girls’ Education Society (1995 Supp. 1 SCC 157) has not been correctly decided and the decisions in Vidyulata Arvind Kakade v. Digambar Gyanba Surwase and Arati Ray Choudhury’s cases were not properly appreciated in Bhide Girls’ case (x) In State of Bihar & Ors. V. Bageshwari Prasad & Anr. (1995 Supp. 1 SCC 432), the rule of rotation has been held valid by indicating that the said rule does not offend Articles 14 and 16(1) of the Constitution. (xi) The judgment in Chakradhar Paswan’s case was also distinguished in Bageshwari’s decision.

In Madhav’s case, in support of the view that even in respect of single post cadre, reservation can be made for the backward classes by rotation of roster, the Constitution Bench decision in Arati Ray Choudhury’s case has been relied on. We have already indicated that in Arati’s case, the Constitution Bench did not lay down that in single post cadre, reservation is possible with the aid of roster point. The court in Arati’s case considered the applicability of roster point in the context of plurality of posts and in that context the rotation of roster was upheld by the Constitution Bench. The Constitution Bench in Arati’s case has made it quite clear by relying on the earlier decisions of the Constitution Bench in Balaji’s case and Devadasan’s case that 100% reservation was not permissible and in no case reservation beyond 50% could be made. Even the circular on the basis of which appointment was made in Arati Ray Choudhury’s case was amended in accordance with the decision in Devadasan’s case. Therefore, the very premises that Constitution Bench in Arati’s case has upheld reservation in a single post cadre is erroneous and such erroneous assumption in Madhav’s case has been on account of misreading of the ratio in Arati Ray Choudhury’s case. It may be indicated that the later decision of the Constitution Bench in R.K. Sabharwal’s case (1995(2) SCC 745) has also proceeded on the footing that reservation in roster can operate provided in the cadre there is plurality of post. It has also been indicated in Sabharwal’s decision that the post in a cadre different from vacancies.

It also appears that the decision in Indra Swhney’s case has also not been properly appreciated in madhav’s decision. In Indra Sawnhey’s case, it has not been held that there can be reservation in a single cadre post. There is not dispute that a carry forward scheme, provided it does not result in reservation beyond 50% is constitutionally valid but that does not mean that by the device of carry forward scheme, 100% reservation on some occasions can be made even when the post is only a single cadre post. In Madhav’s decision and Brij Lal’s decision, reliance has been placed on Article 16(4A) of the Constitution for holding that even in respect of single post such reservation can be made with the aid of rotation of roster. In our view, Article 16(4A) relates to reservation in promotional post in the cadre, but the said Article 16(4A) does not deal with the question of reservation in a single cadre post.

There is no difficulty in appreciating that there is need for reservation for the members of the Scheduled Castesand Scheduled Tribes and other backward classes ad such reservation is not confined to the initial appointment in a cadre but also to the appointment in promotional post. It cannot however be lost sight of that in the anxiety for such reservation for the backward classes, a situation should not be brought by which the chance of appointment is completely taken away so far as the members of other segments of the society are concerned by making such single post cent per cent reserved for the reserved categories to the exclusion of other members of the community even when such member is senior in service and is otherwise more meritorious.

Articles 14, 15 and 16 including Article 16(4), 16(4A) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserved classes. Such view has been indicated in the Constitution Bench decisions of this Court in Balaji’s case, Devadasan’s case and Sabharwal’s case. Even in Indra Sawhney’s case, the same view has been held by indicating that only a limited reservation not exceeding 50% is permissible. it is to be approciated that Article 15(4) is an enabling provision like Article 16(4) and the reservation under either provision should not exceed legitimate limits. In making reservations for the backward classes the State cannot ignore the fundamental rights of the rest of citizens. the special provision under Article 15(4) must therefore strike a balance between several relevant considerations and proceed objectively. In this connection reference may be made to the decisions of this court in The State of Andhra Pradesh and Ors. Vs. U.S.V. Balaram and C.A. Rajendran Vs. Union of India (AIR 1972 SC 1375 and AIR 1968 SC 507). It has been indicated in Indra Swhney’s case (supra) that clause (4) of Article 16 is not in the nature of an exception to Clauses (1) and (2) of Article 16 but an instance of classification permitted by clause (1). It has also been indicated in the said decision that clause (4) of Article 16 does not cover the entire field covered by clauses (1) and (2) of Article 16. In Indra Sawhney’s case, this court has also indicated that in the interests of the backward classes of citizens, the State can not reserve all the appointment under the State or even majority of them. the doctrine of equality of opportunity in Clause (1) of Article 16 is to be reconciled in favour of backward classes under clause (4) of Article 16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality.

In Triloknath Vs. State of Jammu and Kashmir (AIR 1967 SC 1283), it has been held by this Court that where the percentage of reservations is not reasonable, having regard to employment opportunities of the general public to the cadre of service in question, the population of the entire State, the extent of their backwardness and the like, the interference by Court against unreasonable reservation is called for.

In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general embers of the public. Such total exclusion of general members of the public and cent percent reservation for the backward classes is not permissible within the constitutional frame work. The decisions of this Court to this effect over the decades have been consistent.

Hence, until there is plurality of posts in a cadre the question of reservation will not arise because any attempt of reservation by whatever means and even with device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such post is kept out of bound to the members of a large segment of the community who do not belong to any reserved class, but on some other occasions the post will be available for open competition when in fact on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society.

Mr. Kapil Sibal has contended that in some higher echleon of service in educational and technical institution where special expertise is necessary to hold superior posts, like Professors and Readers there should not be reservation even if there are plurality of posts in such cadre as indicated in the majority view in Indra Sawhney’s case. It is, however, not necessary for us to decide the said contention for the purpose of disposal of these matters, where the question of reservation in single cadre post calls for decision.

We, therefore, approve the view taken in Chakradhar’s case that there can not be any reservation in a single post cadre and we do not approve the reasonings in Madhav’s case, Brij Lal Thakur’s case and Bageswari Prasad’s case upholding reservation in a single post cadre either directly or by device of rotation of roster point. Accordingly, the impugned decision in the case of Post Graduate Institute of Medical Education Research can not also sustained. The Review Petition made in civil appeal No. 3175 of 1997 in the case of Post Graduate Institute of Medical Education Research, Chandigarh, is therefore allowed and the judgment dated may 2, 1997 passed in civil Appeal No. 3175 of 1997 is set aside.

As we do not propose to consider the facts and circumstances i other cases which have been heard along with the Review Petition, we direct that the said matters be placed before the appropriate Bench for disposal on the basis of this decision in Review Petition in C.A. No. 3175 of 1997. In the facts and circumstances of the case, there will be no order as to costs.

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