IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2244 OF 2009
[Arising out of SLP (Civil) No. 18308 of 2008]

A.P. Public Service Commission …Appellant
Versus
Baloji Badhavath & Ors. …Respondents

J U D G M E N T

S.B. SINHA, J :

1. Leave granted.

2. Andhra Pradesh Public Service Commission is before us aggrieved by and dissatisfied with a judgment and order dated 23.07.2008 passed by a Division Bench of the Andhra Pradesh High Court in Writ Petition No. 16029 of 2008.

3. The Government of Andhra Pradesh used to issue orders laying down norms to be adopted for filling up of vacancies in Group – I services in the State comprising of Deputy Collectors, Commercial Tax Officers, Assistant Prohibition and Excise Superintendents, Assistant Commissioner of Labour, Deputy Superintendent of Police Category-2, Divisional Fire Officers, District Registrars, Assistant Audit Officer and Assistant Treasury Officer/ Assistant Accounts Officer. The selection process takes place in two phases; the first being holding of an examination for the purpose of shortlisting of the candidates and the second being holding of the main examination followed by interview.

4. Both for preliminary examination as also the main examination, two criteria used to be adopted; one for the general category candidates and other for the reserved category candidates.

5. Validity of the said procedure came up for consideration before a Division Bench of the Andhra Pradesh High Court as far back in the year 1984 in S. Jafeer Saheb v. State of Andhra Pradesh [1985 (2) APLJ 380]. Indisputably, a similar question came up for consideration again in G. Raju v. Government of A.P. rep. by its Secretary [Writ Petition No. 24247 of 2004 decided on 31.12.2004]

In S. Jafeer Saheb (supra), the contention of the State was that the reservation of posts used to be made while admitting the candidates for examination itself and not in the final selection in the ratio of 1:15. The question which, thus, posed, was as to whether admission of candidates for the main examination by applying compensatory preference even at the stage of admission in the main examination is violative of Articles 14 and 16 of the Constitution of India. Taking note of the provisions contained in Articles 14, 16 and 335 of the Constitution of India, the High Court held:

“11. The purpose of holding a screening test is to ensure the basic standard of eligibility of the candidates and even at the stage of admission to the main examination the rule of reservation of posts cannot be applied. Reservation for applicants is not permissible under Art. 16(4).

12. The learned Advocate-General submits that if reservation rule is not followed even at the stage of admitting candidates for the main examination, a reserved vacancy is likely to remain unfilled. It is nobody’s case that as many candidates as there are reserved vacancies have not been qualified for the main examination. Is there any rule of relaxation based on reservation for a pass in the H.S.C. Examination or Intermediate Examination or B.A. Examination? There can be no relaxation or waiver of a basic standard of performance. There can be no compromise with the maintenance of administrative efficiency which is barred by Art. 335 of the Constitution.”

It was furthermore held:

“14. Time is now ripe for Courts to lay down the limits to the lowering of standards for the purpose of compensatory preference. The intensity of compensatory preference cannot be at the expense of even-handedness and merit and cannot proliferate to such an extent as to prove fatal to the basic proficiency and efficiency. The intensity must vary depending on the nature of the compensatory discrimination whether it is primarily for individual benefit or whether the quality of public service is directly affected. Krishna Iyer, J., observed in State of Kerala v. N.M. Thomas that “to relax basic qualification is to compromise with the minimum administrative efficiency and is presumably barred by Art. 335”. Lowering of standards for the purpose of compensatory discrimination is limited to competing commitments to efficient administration.

Public interest demands concern for quality and prohibits waiver or abandonment of quality. In Janki Prasad v. State of Jammu & Kashmir, the Supreme Court observed that the setting of absurdly low minimal scores made it a “travesty of selection”.

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16…When a candidate is ineligible or does not come up to a basic standard, no relaxation can be granted. As already pointed out such concession of preference based on reservation is not granted for a pass in the H.S.C. Examination or Intermediate Examinat6ion or BA Degree Examination, because they are eligibility test and not proficiency test.”

6. Indisputably, pursuant to or in furtherance of the said judgment of the High Court dated 28.12.1984, the State of Andhra Pradesh issued fresh G.O.Ms. No. 570 dated 31.12.1997, providing that the candidates who had applied for Group – I services would be shortlisted based on a preliminary examination (Screening Test) in the ratio of 1:50 to the total number of vacancies available at the material time irrespective of community, the relevant portions whereof read as under:

“…The number of candidates to be admitted to the Written examination (Convention Type) would be 50 (fifty) times to the total number of vacancies available at material time irrespective of communities.

3. The papers except paper 2, i.e., General English may be answered in English or Telugu or Urdu chosen by the candidates. However, a candidate is not permitted to write part of the paper in English and part of it in Telugu.

4. The paper on General English is a qualifying one and the standard of this paper is that of S.S.C. The minimum qualifying marks in this paper are 40% for O.Cs. 35% for B.Cs. and 30% for SC/STs and P.H. These marks are not counted for ranking.

5. In the event of the S.C. and S.T. candidates not coming up for selection with the existing minimum prescribed for the selection in the competitive examination conducted by the commission, their selection shall be considered on the basis of rank with reference to their performance in the written and Oral competitive examination.”

7. Indisputably, when in terms of the said GOMs, a notification in Advertisement No. 21 of 2003 calling applications for Group – I Services was issued in the year 2003, another writ application came to be filed by G. Raju and seven others questioning the legality thereof.

The Andhra Pradesh High Court by a judgment an order dated 31.12.2004 passed in Writ petition No. 24247 of 2004, opined:

“13. The contention of the learned counsel for the petitioners is that at least the ratio of 1:50 should be maintained in respect of each post reserved for community reservation, in such an event, it will enable the reserved candidates to effectively participate in the selection and candidates from out of them would be selected within the reservation category, but this contention though appears to be appealing, cannot be accepted. There cannot be any upper limit. If this has to be taken into consideration, then 1:50 ratio should be considered to be appropriate and reasonable, and inasmuch as it is assured by the A.P.P.S.C. that there will not be any carry forward vacancies, we are not inclined to interfere with the order passed by the Tribunal.”

However, in that writ petition, the validity of GOMs dated 31.12.1997 was not in question.

8. A notification bearing No. 31 of 2007 was issued for Group – I Services Direct Recruitment (General) on 27.12.2007 notifying 196 vacancies; inter alia laying down:

“3. Caste & Community: Community Certificate issued by the competent authority in terms of G.O.Ms No. 58, SW(J) Dept., dt: 12/5/97 should be submitted at appropriate time. As per General Rules for State and Subordinate Service Rules, Rule 2(28) Explanation: – No person who professes a religion different from Hinduism shall be deemed a member of scheduled caste. BCs, SCs & STs belonging to other States are not entitled for reservation, candidates belonging to other States shall pay the prescribed fee of Rs. 120/- (One hundred and Twenty only) through
I.P.O. Otherwise such applications will not be considered and no correspondence on this will be entertained.

4. Reservation for local candidates is not applicable as per concerned Departmental Special Rules, except Post Code – 8, i.e., AAO in AP State Audit Service.

5. Reservation and eligibility in terms of General Rule 22 & 22-A of A.P. State and Subordinate Service Rules are applicable.

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10. The Reservation to Women will apply as per General Rules. For P.C. No. 066, women candidates are not eligible.”

Relaxation of age was granted for the SC/ST and BCs candidates by five years. The reserved categories of candidates were exempted from payment of fees.

9. Pursuant to or in furtherance of the said notification, 1,68,000/- candidates applied. A preliminary examination was held for all the candidates. Having regard to the ratio of the number of candidates to be admitted for main examination being 1: 50, 9,800 candidates were shortlisted to take the main examination.

10. Respondents herein appeared at the said preliminary examination without any demur whatsoever. They, however, having not been shortlisted filed an original application before the Andhra Pradesh State Administrative Tribunal. The said original application was dismissed.
11. Aggrieved by and dissatisfied therewith, they filed a writ petition before the Andhra Pradesh High Court which by reason of the impugned judgment has been allowed. The Commission was impleaded as a party in the writ petition.

The High Court, however, directed the Commission to prepare a statement showing the ratio as also category-wise data of the candidates permitted to appear for the Main examination as per the Commission. Despite noticing the ratio laid down, in regard to certain category of candidates, as for example, OC, BC(C), BC(E), women and physically handicapped candidates, in its earlier decisions in S. Jafeer Saheb (supra) as also in G. Raju (supra), it was held that in the said case as the ratio of the candidates in respect of those categories fell much short of 1:15 ratio, the said GOMs dated 31.12.1997 as also the notification dated 27.12.2007 were held to be ultra vires Articles 14 and 16 of the Constitution of India.

It was stated that both in S. Jafeer Saheb (supra) as also in G. Raju (supra), the GOMs No. 570 dated 31.12.1997 was not challenged at all.

The notification dated 27.12.2007 was said to be contrary to the principles of natural justice as also Articles 14 and 16 of the Constitution of India on the following premise:

(i) Non-implementation of community-wise reservation attracts the wrath of Article 16 of the Constitution of India.

(ii) The right of reservation must be recognized at all levels.

Although S. Jafeer Saheb (supra) as also G. Raju (supra) lay down good law but as community – wise reservation did not fall for consideration therein, the said decisions were not binding upon it.

(iii) Non-fixation of a cut-off mark for each category of community would also be violative of Articles 14 and 16 of the Constitution of India.

12. Mr. L. Nageshwara Rao, learned senior counsel appearing on behalf of the appellant and Mr. R. Sundaravaradhan, learned senior counsel appearing on behalf of the respondent – State, would contend:

(i) As Article 16(4) of the Constitution of India provides for an enabling provision, no writ of mandamus could be issued.

(ii) Right of the candidates being only to be considered for selection in terms of the extant rules, the High Court committed an error in passing the impugned judgment.

(iii) The impugned judgment would be detrimental to the interests of the meritorious candidates belonging to the reserved category.

(iv) The writ petitioners – respondents having failed to qualify in the preliminary examination, are estopped and precluded from questioning the validity of GOMs No. 570 or the notification dated 27.12.2007 issued by the appellant – Commission.

(v) Reservation for women and physically handicapped persons being an incident of horizontal reservation and not a vertical reservation, the impugned judgment cannot be sustained.

13. Mr. P.P. Rao, learned senior counsel appearing on behalf of the respondents, however, while conceding that the writ petitioners – respondents cannot claim any right of reservation and no writ of mandamus can be issued, contended:

(i) As the Constitution contemplates upliftment of weaker sections by providing a percentage of seats for employment in the State and having regard to the fact that both clauses (1) and (4) of Article 16 of the Constitution of India provide for valid classification, the impugned judgment should not be interfered with.

(ii) Judging of the merit of the candidates having regard to the provisions of Article 335 of the Constitution of India per se should not allow the State and the Commission to stop all the candidates at the first gate and then prevent them from appearing at the main examination as thereby constitutional scheme to provide reservation would be frustrated to a great extent.

(iii) The means to achieve the constitutional object and the goals should not be defeated by inserting procedural provisions as a result whereof what is being given by one hand should not be permitted to be taken away by the other.

(iv) Reservation made in favour of women, physically handicapped, etc, although pertains to horizontal reservation, the candidates of the said categories cannot be treated differently.

(v) A candidate only by appearing in an examination cannot waive his fundamental or a statutory right.

(vi) The State having provided for reservation in terms of Rules 22 and 22-A of the Andhra Pradesh State and Subordinate Service Rules, 1996 and furthermore, such a right having also been created in terms of Regulation 14-A of the Andhra Pradesh Public Service Commission Regulations, 1963, the writ petitioners – respondents obtained an indefeasible right for consideration of their candidature so as to enable them to compete with other candidates for appointment in the said post which cannot be permitted to be taken away by reason of the impugned GOMs No. 570 and the notification dated 27.12.2007.

(vii) The expression “irrespective of communities” used in GOMs No. 570 even otherwise cannot be read in such a manner so as to violate the constitutional scheme, as reservation is not based on any religion or race, particularly in view of the fact that the makers of the Constitution of India thought of a casteless and classless society.

(viii) The High Court having declared the GOMs No. 570 as unconstitutional and the State having not preferred any special leave petition thereagainst, the Andhra Pradesh Public Service Commission cannot be said to have any locus standi to maintain this appeal.

14. The vacancies which were to be filled up by the State pertained to Group – I services. The State indisputably subject to the constitutional limitations having regard to its power contained in the proviso appended to Article 309 of the Constitution of India is entitled to frame rules laying down the mode and manner in which vacancies are to be filled up.

15. If the State has the legislative competence to frame rules, indisputably, it can issue governmental orders in exercise of its power under Article 162 of the Constitution of India. It adopted one procedure. It was held to be ultra vires by the Andhra Pradesh High Court in S. Jafeer Saheb (supra). It attained finality. The State amended the procedure in the light of the said decision by GOMs No. 570 dated 31.12.1997. No new policy was laid down which can be said to be contrary to or inconsistent with the decision of the Andhra Pradesh High Court in S. Jafeer Saheb (supra). A notification containing similar provisions issued by the Andhra Pradesh Public Service Commission in 2003 was questioned. It may be true that the validity of the GOMs itself was not questioned but if the terms of the notification were held to be unconstitutional, GOMs could have also been declared as such.

16. The Division Bench of the High Court indisputably was bound by the said decision. It, however, proceeded to examine the constitutionality of the GOMs dated 31.12.1997 and the notification dated 27.12.2007 inter alia on the premise that the validity of the said GOM and the notification was not tested on the touchstone of Articles 14 and 16 of the Constitution of India.

17. The Constitution of India lays down provisions both for protective discrimination as also affirmative action. Reservation of posts for the disadvantaged class of people as also seats in educational institutions are provided for by reason of Articles 15 and 16 of the Constitution of India. Reservation made for the members of the Scheduled Castes, Scheduled Tribes and other Backward Classes would, however, is subject to Article 335 of the Constitution of India. Concededly, no citizen of India can claim reservation as a matter of right. The provisions contained in Articles 15 and 16 of the Constitution of India are merely enabling provisions. No writ of or in the nature of mandamus, thus, could be issued. [See C.A. Rajendran v. Union of India & Others, (1968) 1 SCR 721 at 731-733, Indra Sawhney and Others v. Union of India and Others [1992 Supp (3) SCC 217, para 165 to 169, 428 to 432, 741 and 742, Ajit Singh and Others (II) v. State of Punjab and Others (1999) 7 SCC 209, para 32 to 39, State of Punjab and Others v. Manjit Singh and Others (2003) 11 SCC 559, para 7 and 12]

18. The State, however, have made provisions for reservation.

Indisputably, the appellant – Commission has made regulations known as Andhra Pradesh Public Service Commission Regulations, 1963, Regulation 14-A whereof reads as under:

“It shall be necessary for the Commission in the matter of recruitment to the posts and services to strictly adhere to wherever applicable the provisions contained:

(i) in the General Rule 22 and 22-A;”

19. The rules of procedure for holding the said examination have also been prescribed known as the Andhra Pradesh Public Service Commission Rules of Procedure; Rule 4 whereof reads as under:

“4. Where a direct recruitment is to be made by selection, i.e., after interview only, and where the number of qualified petitioners is unduly large having regard to the actual number of vacancies available, the Commission may restrict the number of candidates to be called for interview to such extent as it may deem fit. Such shortlisting may be done by the Commission either by holding a written test or on the basis of preferential or higher qualifications and experience and after taking into account the requirements with reference to the Rules 22, 22-A of the General Rules for State and Subordinate Services and the Rule of reservation in favour of local candidates where they are applicable.”

20. The State of Andhra Pradesh in exercise of its power conferred upon it by the proviso appended to Article 309 of the Constitution of India framed rules known as the Andhra Pradesh State and Subordinate Service Rules, 1996. Rules 22 and 22-A thereof indisputably provide for reservation for appointments to a service, class or category in favour of Scheduled Castes, Scheduled Tribes, Backward Classes, women, physically handicapped, meritorious sportsmen, ex-servicemen, etc. Special rules and adhoc rules have also been made for reservation of women by way of Rule 22-A thereof, stating:

“22-A. Women reservation in appointment: Notwithstanding anything contained in these rules or special rules or Adhoc Rules:

(1) In the matter of direct recruitment to posts for which women are better suited than men, preference shall be given to women:

Provided that such absolute preference to women shall not result in total exclusion of men in any category of posts.

(2) In the matter of direct recruitment to posts for which women and men are equally suited, there shall be reservation to women to an extent to 33 1/3% of the posts in each category of Open Competition, Backward Classes (Group – A), Backward Classes (Group – B), Backward Classes (Group – C), Backward Classes (Group – D), Scheduled Castes, Scheduled Tribes and Physically Handicapped and Ex-servicemen quota:…”

21. Appellant – Commission which has been constituted in terms of Article 315 of the Constitution of India is bound to conduct examination for appointment to the services of the State in terms of the Rules framed by the State. It is, however, free to evolve procedure for conduct of examination. While conducting the examination in a fair and transparent manner as also following known principles of fair play, it cannot completely shut its eyes to the constitutional requirements of Article 335 of the Constitution of India, which reads as under:

“335 – Claims of Scheduled Castes and Scheduled Tribes to services and posts

The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State:

Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.”

In State of Kerala and Another v. N.M. Thomas and Others [(1976) 2 SCC 310], this Court opined:

“41. Article 335 of the Constitution states that claims of members of the Scheduled Castes and scheduled tribes shall be taken into consideration in the making of appointments to the services and posts in connection with affairs of the State consistent with the maintenance of efficiency of administration. The impugned rule and the impugned orders are related to this constitutional mandate. Without providing for relaxation of special tests for a temporary period it would not have been possible to give adequate promotion to

the lower division clerks belonging to Scheduled Castes and scheduled tribes to the posts of upper division clerks. Only those lower division clerks who were senior in service will get the benefit of the relaxation contemplated by Rule 13-AA and the impeached orders. Proipotion to upper division from lower division is governed by the rule of seniority subject only to passing of the qualified test. The temporary relaxation of test qualification made in favour of Scheduled Castes and scheduled tribes is warranted by their inadequate representation in the services and their overall backwardness. The classification of the members of the Scheduled Castes and scheduled tribes already in service made under Rule 13-AA and the challenged orders for exempting them for a temporary period from passing special tests are within the purview of constitutional mandate under Article 335 in consideration of they claims to redress imbalance in public service and to bring about parity in all communities in public services.”

22. How the Commission would judge the merit of the candidates is its function. Unless the procedure adopted by it is held to be arbitrary or against the known principles of fair play, the superior courts would not ordinarily interfere therewith. The State framed Rules in the light of the decision of the High Court in S. Jafeer Saheb (supra). Per se, it did not commit any illegality. The correctness of the said decision, as noticed hereinbefore, is not in question having attained finality. The matter, however, would be different if the said rules per se are found to be violative of Article 16 of the Constitution of India. Nobody has any fundamental right to be appointed in terms of Article 16 of the Constitution of India. It merely provides for a right to be considered therefor. A procedure evolved for laying down the mode and manner for consideration of such a right can be interfered with only when it is arbitrary, discriminatory or wholly unfair.

23. We may notice that in Chattar Singh v. State of Rajasthan [(1996) 11 SCC 742], Rule 13 of the Rajasthan State and Subordinate Services (Direct Recruitment by Combined Competitive Examinations) Rules, 1962 prescribing the mode of conducting preliminary as also main examination had been interpreted, opining :

“…What requires to be done is that the Public Service Commission has to consider the number of vacancies notified or likely to be filled in the year of recruitment for which notification was published. Then candidates who had appeared for the Preliminary Examination and qualified for Main Examination are to be screened by the test. The object is to eliminate unduly long list of candidates so that opportunity to sit for Main Examination should be given to candidates numbering 15 times the notified posts/vacancies in various services; in other words for every one post/vacancy there should be 15 candidates. There would be wider scope to get best of the talent by way of competition in the examination. The ultimate object is to get at least three candidates or as is prescribed, who may be called for viva voce. Therefore, the lowest range of aggregate marks as cut-off for general candidates should be so worked out as to get the required number of candidates including OBCs, Scheduled Castes and Scheduled Tribes. The lowest range would, therefore, be worked out in such a way that candidates numbering 15 times the notified posts/vacancies would be secured so as to afford an opportunity to the candidates to compete in the Main Examination.

15. Under the proviso, if that range has not been reached by the candidates belonging to the SCs or the STs, there may be 5% further cut-off from the last range worked out for the general candidates so as to declare them as qualified for appearing in the Main Examination. In other words, where candidates belonging to the SCs and STs numbering 15 times the total vacancies reserved for them are not available then the Service Commission has to go down further and cut off 5% of the marks from the lowest of the range prescribed for general candidates and then declare as eligible the SC and ST candidates who secured 5% less than the lowest range fixed by PSC for general candidates so as to enable them to appear for the Main Examination. The candidates who thus obtain qualifying marks are eligible to appear and write the Main Examination. The respective proportion of 1:3 or as may be prescribed and candidates who qualified in the Main Examination will be called by the Commission, in their discretion, for interview. The Commission shall award marks to each candidate interviewed by them, having regard to their character, personality, address, physique and knowledge of Rajasthani culture as is in vogue as per rules. However, for selection to the Rajasthan Police Service, candidates having ‘C’ Certificate of NCC will be given preference. The marks so awarded shall be added to the marks obtained in the Main Examination by each such candidate.

16. In working out this procedure, if the minimum of 15 times of the candidates are identified and results declared, it would not be necessary to pick up more General/Reserved candidates. It would not be necessary to declare the result of more than 15 times the total notified vacancies/posts so as to enable them to compete in the Main Examination. The object of screening test is to eliminate unduly long number of persons to appear for Main Examination. If more candidates are called by declaring their result in Preliminary Examination, the object of Rule 13 would be frustrated.”

24. The Commission contends that in all the past examinations held, the vacancies pertaining to the reserved categories had been filled up. The vacancies were not required to be carried forward as sufficient numbers of candidates belonging to the reserved category were available. It is in the aforementioned context, a statement was made in G. Raju (supra) that the Commission shall not carry forward the vacancies.

In Pitta Naveen Kumar and Others v. Raja Narasaiah Zangiti and Others [(2006) 10 SCC 261], this Court held:

“52. The authority of the State to frame rules is not in question. The purport and object for which the said notifications were issued also cannot be said to be wholly arbitrary so as to attract the wrath of Article 14 of the Constitution of India. The appellants herein no doubt had a right to be considered but their right to be considered along with other candidates had not been taken away. Both the groups appeared in the preliminary examination. Those who had succeeded in the preliminary examination were, however, allowed to sit in the main examination and the candidature of those had been taken into consideration for the purpose of viva voce test who had passed the written examination.”

25. Indisputably, the preliminary examination is not a part of the main examination. The merit of the candidate is not judged thereby. Only an eligibility criterion is fixed. The papers for holding the examination comprise of General Studies and Mental Ability. Such a test must be held to be necessary for the purpose of judging the basic eligibility of the candidates to hold the tests. How and in what manner the State as also the Commission would comply with the constitutional requirements of Article 335 of the Constitution of India should ordinarily not be allowed to be questioned.

The proviso appended to Article 335 of the Constitution, to which our attention has been drawn by Mr. Rao, cannot be said to have any application whatsoever in this case. Lowering of marks for the candidates belonging to the reserved candidates is not a constitutional mandate at the threshold. It is permissible only for the purpose of promotion. Those who possess the basic eligibility would be entitled to appear at the main examination. While doing so, in regard to General English whereas the minimum qualifying marks are 40% for OCs, it would be 35% for BCs and 30% for SC/STs and physically handicapped persons. However, those marks were not to be counted for ranking. We have noticed hereinbefore, that candidates belonging to the reserved categories as specified in the notification are not required to pay any fee. Their age is relaxed upto five years. It is, therefore, not correct to contend that what is given by one hand is sought to be taken by another. They can, thus, appear in the examination for a number of times. Indisputably, the right conferred upon the writ-petitioners – respondents in terms of Rules 22 and 22-A of the Andhra Pradesh State and Subordinate Service Rules, 1996 was to be protected. The extent of relaxation has been recognized. By reason of such a provision, the right to be considered has not been taken away.

26. Judging of merit may be at several tiers. It may undergo several filtrations. Ultimately, the constitutional scheme is to have the candidates who would be able to serve the society and discharge the functions attached to the office. Vacancies are not filled up by way of charity. Emphasis has all along been made, times without number, to select candidates and/ or students based upon their merit in each category. The disadvantaged group or the socially backward people may not be able to compete with the open category people but that would not mean that they would not be able to pass the basic minimum criteria laid down therefor.

27. We have been informed at the bar that 12 handicapped people have appeared at the main examination and, thus, it would be possible to fill up the posts even from that category of candidates.

28. Submission of Mr. Rao that by reason of such a process, only the forward sections of backward classes who have the advantage of undergoing coaching classes, etc. would be given preference may not be correct. No statistical data had been placed before the High Court or before us. We have not been furnished any information as to on what basis, such a contention could be raised. All the candidates are highly educated. Merit is not the monopoly of people living in urban areas. The State must adopt some criteria. It having regard to its limited resources cannot allow lakhs and lakhs of candidates to appear at the examination as also at the interview. It is bound to devise some procedure to shortlist the candidates. Rule 4 of the Andhra Pradesh Public Service Commission Rules of Procedure which refers to Rules 22 and 22-A of the Andhra Pradesh State and Subordinate Service Rules, 1996 would apply only where shortlisting is done. The first part of the said Rule empowers the Commission to restrict the number of candidates to be called for interview to such extent as it may deem fit. While shortlisting, however, it may hold a written test or provide for a preferential or higher qualification and experience and only for that purpose it is required to take into account the requirements with reference to Rules 22 and 22A of the Andhra Pradesh State and Subordinate Service Rules, 1996 and the rule of reservation in favour of local candidates.

29. Strong reliance has been placed by Mr. Rao on Sangram Singh v. Election Tribunal, Kotah, Bhurey Lal Baya [(1955) 2 SCR 1] wherein Vivian Bose. J., stated as under:

“Now a code of procedure must be regarded as such. It is procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.”

The said observation was made keeping in view the concept of justice. By reason of providing for a preliminary examination, the right of the reserved category candidates has not been taken away. The means cannot be allowed to defeat the ends which the constitutional scheme seeks to achieve.

30. Reliance has also been placed by Mr. Rao on Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and Others [(1981) 1 SCC 246] wherein this Court held:

“76. Proceeding on this footing, the fundamental right of equality of opportunity has to be read as justifying the categorisation of SCs & STs separately for the purpose of “adequate representation” in the services under the State. The object is constitutionally sanctioned in terms, as Articles 16 (4) and 46 specificate. The classification is just and reasonable. We may, however, have to test whether the means used to reach the end are reasonable and do not outrun the purposes of the classification. Thus the scope of the case is narrowed down.”

31. We have proceeded on the same assumption. What was in question in that case was as to whether in matter of promotions reservation of posts for SC/ST candidates is unconstitutional. It is now a settled law that it is not. The said observation inter alia was in tone with the opinion of Ray, CJ in N.M. Thomas (supra).

The said observations, in our opinion, have no application to the fact of the present case.

32. Submission of Mr. Rao is that the expression “irrespective of communities” has wrongly been used. In support of the said contention reliance has been placed on the expression “Irrespective of Race” in the Words and Phrases, Permanent Edition, Volume 22A, page 506, which is in the following terms:

“By Act May 2, 1890, c. 182 § 31, 26 Stat. 94, Sections 566, 567, Mansf. Dig., was extended over Indian Territory with a proviso excepting Indians and their estates. By act June 7, 1897, C.3, § 1, 30 Stat. 83, such laws were made to apply to all persons in the territory “irrespective of race” and by the Curtis Act June 28, 1898, C. 517, § 26, 30 Stat. 504, it was provided that the laws of the Indian tribes should not longer be enforced. Held that by virtue of such provisions, a noncitizen husband of a Creek allottee who died after the birth of a child of the marriage was entitled by the curtesy to a life estate in her allotted lands. Armstrong v. Wood, 195 F. 137, 141”

33. The word “community”, however, is understood in different senses, keeping in view the purport and object for which the said term is used. It may be given a natural meaning. It may have to be read along with the words ‘caste’ and ‘religion’ in which event it will have to have a narrower meaning than the dictionary meaning of a body of people having same common interest. [See Advanced Law Lexicon, 3rd edition, 2005, page 907]

34. Indisputably, when the said words were used, it took its clue from S. Jafeer Saheb (supra).

The expression might have been loosely used but its purport and object had been understood by candidates including the writ petitioners. The provisions for holding the preliminary examination were for the purpose of maintaining a basic standard. The High Court has directed deletion of the said words.

35. Mr. P.P. Rao has relied upon the following paragraph of the decision of this Court in N.M. Thomas (supra):

“43. Scheduled Castes and scheduled tribes are not a caste within the ordinary meaning of caste. In Bhaiyalal v. Harikishan Singh12 this Court held that an enquiry whether the appellant there belonged to the Dohar caste which was not recognised as a scheduled caste and his declaration that he belonged to the Chamar caste which was a scheduled caste could not be premitted because of the provisions contained in Article 341. No court can come to a finding that any caste or any tribe is a scheduled caste or scheduled tribe. Scheduled caste is a caste as notified under Article 366(25). A notification is issued by the President under Article 341 as a result of an elaborate enquiry. The object of Article 341 is to provide protection to the members of Scheduled Castes having regard to the economic and educational backwardness from which they suffer.”

36. For the views, we have taken earlier, it is not necessary for us to go into the above mentioned larger question particularly having regard to the recent decision of this Court in Ashoka Kumar Thakur v. Union of India and Others [(2008) 6 SCC 1]

37. One other aspect of the matter must be kept in mind.

If category-wise statement is prepared, as has been directed by the High Court, it may be detrimental to the interest of the meritorious candidates belonging to the reserved categories. The reserved category candidates have two options. If they are meritorious enough to compete with the open category candidates, they are recruited in that category. The candidates below them would be considered for appointment in the reserved categories. This is now a well-settled principle of law as has been laid down by this Court in several decisions. [See for example, Union of India and Anr. V. Satya Prakash and Ors. (2006) 4 SCC 550, para 18 to 20, Ritesh R. Shah v. Dr. Y.L. Yamul (1996) 2 SCR 695 at 700-701, R.K. Daria v. Rajasthan Public Service Commission, (2007) 8 SCC 785, para 9]

38. As we have entered into the merit of the matter, in our opinion, it is not necessary to determine the question as to whether the writ petitioners –

respondents having appeared in the examination were estopped and precluded from filing the writ petition.

39. Reservation of women, handicapped etc. is on a horizontal basis.

Reservation to the category of candidates has to be given irrespective of the class or category of candidates. A final selection has to be made. If such a procedure, as directed by the High Court, is to be taken recourse to, the same would give rise to a complexity.

40. So far as the question of locus standi of the appellant to file this Special Leave Petition is concerned, we are of the opinion that it has the locus standi. The High Court not only has set aside the GOMs dated 31.12.1997 but it has also set aside the notification dated 27.12.2007. If the High Court’s judgment is to be implemented, a fresh selection procedure has to be undertaken by the appellant. Furthermore, in terms of Order 41, Rule 4 of the Code of Civil Procedure, the appellate court, in the event, finds merit in the appeal at the instance of one of the respondents may set aside the entire judgment although another respondent had not appealed thereagainst.

41. The Commission had undertaken the task of holding preliminary examination. It had followed the procedure laid down in its notification issued in this behalf and the GOMs issued by the State. It, therefore, could maintain a writ petition.

42. Mr. Rao, however, submits that in order to maintain an appeal, the Commission should have been a ‘person aggrieved’. Reliance in this behalf has been placed on Thammanna v. K. Veera Reddy Ors. [(1980) 4 SCC 62 : (1981) 1 SCR 73] wherein in the context of the provisions of Section 116C of the Representation of People Act, 1951, it was held:

“14…As a general proposition, therefore, it may safely be stated that before a person is entitled to maintain an appeal under Section 116-C, all the conditions mentioned below, must be satisfied:

(1) that the subject-matter of the appeal is a conclusive determination by the High Court of the rights with regard to all or any of the matters in controversy, between the parties in the election petition,

(2) that the person seeking to appeal has been a party in the election petition, and

(3) that he is a “person aggrieved”, that is a party who has been adversely affected by the determination…”

No exception to the rule can be taken. We are not, however, dealing with the election petition. We are dealing with a rule laid down by a constitutional authority as also the State.

43. Mr. Rao also relied upon the following paragraph of a decision of this Court in A.P. Public Service Commission v. P. Chandra Mouleesware
Reddy [(2006) 8 SCC 330]:

“13. The State of Andhra Pradesh, we may notice, did not question the order of the Tribunal. The Commission was required to carry out fresh exercise in compliance with the directions of the Tribunal. For the said purpose, no fresh selection process was to be undertaken. If the State did not have any objection to fill up the said posts realising the mistake committed by it; we fail to see any reason as to why the Commission should have felt aggrieved by the order of the Tribunal.”

In that case, the State had accepted the judgment of the High Court. A mistake on the part of the State to issue the impugned direction was in question therein. It was in that context the aforementioned observations had been made.

Therein 19 posts were to be filled up whereas a direction was issued only to fill up ten posts. The Tribunal directed the State to fill up all 19 posts. The State of Andhra Pradesh did not question the order of the Tribunal. Even the Commission was not required to carry out any fresh exercise to comply with the direction of the Tribunal. As the order of the Tribunal was not found to be unjustified, the High Court refused to interfere therewith. The observations were made only in the aforementioned context.

44. For the reasons aforementioned, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.

………………………….J. [S.B. Sinha]
..…………………………J. [Cyriac Joseph]

New Delhi;
April 08, 2009

The post A.P. Public Service Commission Vs. Baloji Badhavath & Ors. appeared first on B&B Associates LLP.

Judgment reserved on: 25.09.2009
+ Judgment delivered on: 01.12.2009

% 1. FAO(OS) 313 OF 2008

SCHERING CORPORATION & ORS Appellants
Through: Mr. Sachin Datta, Ms.
Lakshmi Ramamurthy Ms. Shaila Arora, and Mr. Amit Mehta, Advocates

VERSUS

ALKEM LABORATORIES LTD.”…….Respondent
Through: Mr. Praveen Anand, Ms.
Ishani Chandra and Ms.
Vaishali Kakra, Advocates

AND
2. FAO(OS) 314 OF 2008

SCHERING CORPORATION & ORS Appellants
Through: Mr. Sachin Datta, Ms.
Lakshmi Ramamurthy, Ms. Shaila Arora and Mr. Amit Mehta, Advocates

VERSUS

GETWELL LIFE SCIENCES INDIA PRIVATE LIMITED …….Respondent
Through: Mr. Praveen Anand, Ms.
Ishani Chandra and Ms. Vaishali Kakra, Advocates

CORAM:
HON’BLE MR. JUSTICE MUKUL MUDGAL HON’BLE MR. JUSTICE VIPIN SANGHI

1. Whether the Reporters of local papers may be allowed to see the judgment? No

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

VIPIN SANGHI, J.

1. The present appeals have been filed by the appellants Schering Corporation, Schering-Plough Ltd. and Fulford (India) Ltd. under Order 43 Rule 1(r) CPC. They are directed against the identical orders dated 04th July, 2008 passed by the Learned Single Judge dismissing the appellants’/plaintiffs’ applications under Order 39 Rules 1 & 2 in the two suits CS (OS) No.730/2007 (out of which FAO(OS) No. 313/2008 arises) and CS(OS) No.361/2007 (out of which FAO(OS) 314/2008 arises) and vacating the ex parte ad interim orders of injunction passed in the said suits.

2. These interim applications had been filed to seek grant of an interim injunction to restrain the Respondent Alkem Laboratories Ltd. (Defendant in CS(OS) NO. 730/2007) (hereinafter referred to as ALKEM) and Getwell Sciences India Pvt. Ltd ( Defendant in Suit No. 361/2007) (hereinafter referred to as GETWELL) from using the marks TEMOKEM and TEMOGET respectively in relation to their pharmaceutical products the active ingredient whereof is TEMOZOLOMIDE, a drug administered for the treatment of brain cancer.

3. The appellants filed the aforesaid two suits to, inter alia, seek permanent injunction to restrain infringement of registered trademarks, copyright, passing off, dilution, unfair competition, rendition of accounts of profits, deliver-up etc. against the aforesaid respondents ALKEM & GETWELL respectively.

4. The appellants have disclosed the genesis of the TEMOZOLOMIDE molecule and its marks TEMODAL and TEMODAR used by the appellants. In 1984 one Professor Steven synthesized a molecule and named it TEMOZOLOMIDE. In 1991 the Cancer Research Campaign Technology Ltd., UK acquired rights to the TEMOZOLOMIDE technology from its maker, Prof. Stevens. In 1992 the appellants obtained worldwide license for TEMOZOLOMIDE technology from the aforesaid Cancer Technology Ltd. and initiated their research and development of a brain cancer drug. The drug was approved as a medical drug for cancer treatment in 1999.”The appellants then filed”for TEMODAL as their Trademark for their TEMOZOLOMIDE-based drug. According to the appellants the drug is being sold in India ever since 17.01.2000. Even the mark TEMODAL was registered in India in favor of the appellant vide registration no.687936 w.e.f. 23.11.1995 in class 5, which, inter alia, relates to pharmaceuticals including alkylating cytotoxic agents for the treatment of various types of cancer. Similarly, TEMODAR is registered in name of appellant no. 3 vide registration no. 888816 w.e.f 29.11.1999.

5. The appellants claim that they are global science-based health care business entities with leading prescription, consumer and animal health products. The mark TEMODAL existed in the appellants’ portfolio since 1978 and was first applied by them for “Psychopharmaceutical Preparations” in Class 5 in Norway, Denmark and Sweden. The appellants commenced sales in Europe and thereafter in other parts of the world along with filing for registration of the mark TEMODAL in those respective countries, which they successfully acquired too.

6. The appellants claim to have came to know that the respondent ALKEM was marketing and selling an almost identically positioned drug (for treatment of brain cancer or glioblastoma multiforme) under the mark TEMOKEM which, according to the appellants, was phonetically, linguistically, textually, visibly, manifestly, confusingly and deceptively similar to their marks TEMODAL/TEMODAR. They also came to know that the respondent ALKEM had submitted a “Proposed to be used” application bearing number 1348168 in class 5 for registration of the mark TEMOKEM and the same was advertised in Trademark Journal no. 1335-0 dated 01.11.2006 made available to the public on 03.03.2007. In answer to this, the appellants have filed a notice of opposition dated 23.03.2007 to the above application and the same is still pending.

7. The appellants alleged infringement of trademarks under section 29 of the Trademarks Act, 1999 (hereinafter referred to as ‘The Act’) and also passing off against the respondent ALKEM, in their civil suit, being CS(OS) No.730 of 2007 filed on the original side of this Court.

8. It appears that the learned Single Judge passed an ex parte ad interim order of injunction in favour of the appellants, and against the respondent ALKEM on 23.04.2007 thereby restraining the respondent ALKEM from launching/using, advertising, promoting, stocking, offering for sale or distributing or otherwise using trademark “TEMOKEM” or any other mark deceptively or confusingly similar to that of the plaintiff’s registered trademark “TEMODAL/TEMODAR” as a drug used especially for treatment of brain cancer. However, after notice to the respondent ALKEM, and after hearing the parties the learned Single Judge by the impugned order has vacated the aforesaid order dated 23.04.2007 and dismissed the appellants’ application under Order 39 Rules 1 & 2 CPC being I.A. No.4555/2007 while allowing respondent’s application being I.A. No.6041/2007 filed under Order 39 Rule 4 CPC.

9. Similarly, in CS (OS) No.361/2007 wherein GETWELL is the defendant, the appellants claimed that they came to know in December, 2006 of the defendant/respondent marketing and selling an identically positioned drug by GETWELL under the brand name ‘TEMOGET’ in Delhi and also in other towns of India. The appellants also stated that they had made enquiries with regard to the making of an application for registration of the trademark ‘TEMOGET’ by the respondent GETWELL, but the search had produced no results.

10. The learned Single Judge initially passed an ex parte ad interim injunction order on 27.02.2007 thereby restraining GETWELL from advertising, promoting, stocking, offering for sale or distributing or otherwise using trademark “TEMOGET” or any other mark deceptively or confusingly similar to that of the plaintiff’s registered trademark “TEMODAL/TEMODAR” as a drug used especially for treatment of brain cancer. After notice to and hearing the respondent GETWELL the ex parte ad interim order of injunction was vacated by the impugned order dated 04.07.2008 and the appellants application under Order 39 Rule 1 & 2 CPC being I.A. No.2226/2007 was dismissed.

11. The learned Single Judge in his impugned orders observed that the term ‘TEMO’ used in the appellant’s registered trademarks as well as in the respondent’s trademarks are derived from the name of the chemical compound TEMOZOLOMIDE. To the said term ‘TEMO’ the appellants had added the suffix ‘DAL’ and ‘DAR’ to arrive at the trademarks ‘TEMODAL’ and ‘TEMODAR’ respectively. On the other hand, respondents had added the suffix ‘KEM’ and ‘GET’ which are the parts of the respondent’s company names, to arrive at the trademark ‘TEMOKEM’ and ‘TEMOGET’ respectively. The learned Single Judge held that all the trademarks, as aforesaid, are portmanteau words. He further held as follows:

“A portmanteau word is used to describe a linguistic blend, namely, a word formed by blending sounds from two or more distinct words and combining their meanings. Examples of portmanteau words are – brunch (breakfast + lunch); Tanzania (Tanganyika + Zanzibar). As per the Wikipedia, portmanteaus can also be created by attaching a prefix or suffix from one word to give that association to other words. For example, the suffix ‘holism’ or ‘holic’ taken from the word ‘alcoholism’ or ‘alcoholic’ can be added to a noun, creating a word that describes an addiction to that noun. For example, chocoholic means a person who is addicted to chocolate and workaholic means a person who is addicted to work and so on. Portmanteau words can also be used to describe bilingual speakers who use words from both languages while speaking. For instance, a person would be considered speaking ‘Spanglish’ if he is using both Spanish and English words at the same time. Similarly, the portmanteau word ‘Hinglish’ would refer to the usage of Hindi and English words at the same time.”

12. He held that the respondents were able to show the derivation of the trademarks ‘TEMOKEM’ and ‘TEMOGET’ by employing ‘TEMO'”from”TEMOZOLOMIDE”and”‘KEM'”from”the”name”of”the respondent ALKEM and, similarly, ‘GET’ from the name of the respondent GETWELL, respectively. The combined effect of ‘TEMO’ and ‘KEM’ would be TEMOZOLOMIDE manufactured by Alkem Laboratories. Similarly, the combined effect of ‘TEMO’ and ‘GET’ is TEMOZOLOMIDE manufactured by Getwell.

13. The learned Single Judge relied on the decision of this court in Kalindi Medicure Pvt. Ltd. Vs. Intas Pharmaceuticals Limited and Anr. 2007 (34) PTC 18 (Del) wherein this Court had taken note of the established practice that in pharmaceutical trade names of various drugs are often almost similar to each other, having common prefixes or suffixes, for the reason that the name of the drug conveys as to which salt / compound it is a derivative of. In that case, while one of the products was sold in the form of pills in aluminum foils, the other competing product was sold in pre filled syringes. The price difference in the competing products was also taken into account for vacating the ex parte injunction granted in favour of the plaintiff in that case.

14. The learned Single Judge heavily relied on the Division Bench Judgment of this Court in Astrazeneca UK Ltd. & Anr. Vs. Orchid Chemicals & Pharmaceuticals Ltd. 2007 (34) PTC 469 (DB) (Delhi) which concerned the claim for infringement of the plaintiffs/appellants registered trademark ‘MERONEM’ by the defendants/respondents use of the trademark ‘MEROMER’. Both the products were derived from the active ingredient ‘MEROPENEM’. The Division Bench of this Court came to the conclusion that ‘MEROPENEM’ is a molecule which is used for treatment of bacterial infection and the term ‘MERO’ being an abbreviation of”the”generic”term”‘MEROPENEM'”was”publici”juris. Consequently, the appellants/plaintiffs in that case were held not entitled to claim exclusive rights to the use of the term ‘MERO’ as a constituent of the trademark in question as it was descriptive of the appellants’/plaintiffs’ drug. The Division Bench further held that the common feature in both the competing marks ‘MERO’ being descriptive and publici juris, the customers would tend to ignore the common feature and would pay more attention to the uncommon features namely ‘MER’ and ‘NEM’, which were clearly dissimilar. The following paragraph from the said decision of the Division Bench was particularly referred by the learned Single Judge :

“19. Admittedly, ‘Mero’, which is common to both the competing marks, is taken by both the appellants/plaintiffs and the respondent/ defendant from the drug “Meropenem’, taking the prefix ‘Mero’ which is used as a prefix in both the competing marks. Both the appellants/plaintiffs and the respondent/ defendant are marketing the same molecule ‘Meropenem’. Neither the appellants/plaintiffs nor the respondent/defendant can raise any claim for exclusive user of the aforesaid word ‘Meropenem’. Along with the aforesaid generic/common prefix, ‘Mero’, the appellants/ plaintiffs have used the syllables ‘nem’, whereas, the respondent/defendant has used the syllable ‘mer’. It is true that the aforesaid words/trade names cannot be deciphered or considered separately, but must be taken as a whole. But even if they are taken as a whole, the prefix ‘Mero’ used with suffix in the two competing names, distinguishes and differentiates the two products. When they are taken as a whole, the aforesaid two trademarks cannot be said to be either phonetically or visually or in any manner deceptively similar to each other.”

15. The learned Single Judge noted the view of the Division Bench in Astrazeneca (supra) that in the trade of drugs it was a common practice to name the drug by the name of the organ or ailment which it treated or the main ingredient of the drug. The name of such an organ, ailment or ingredient being publici juris or generic, could not be claimed by anyone exclusively for use as a trademark. The argument of the appellant that it was the first to have adopted and use the name ‘TEMO’, and that the appellants had trans-border reputation [which were claimed to be the distinguishing feature from the Astrazeneca (supra) case] was rejected by the learned Single Judge as the claim of the appellants was founded upon an alleged infringement of registered trademark. It was also not a case where the respondents had raised a defence of prior use under Section 34 of the Act, where again, the question of “who used the mark first” would be relevant. The case of the appellants was one of infringement under Section 29 of the Act and the only question which required consideration was whether the respondent’s trademarks were deceptively similar to the appellants registered trademarks, which could lead to confusion in the mind of the purchaser to purchase the drugs of the respondents, while intending to purchase the appellants drugs.

16. The learned Single Judge held that the present cases are squarely covered by the decision of the Division Bench in Astrazeneca (supra).

17. The learned Single Judge also took note of the decision in Bhagwan Dass Gupta Vs. Shri Shiv Shankar Tirath Yatra Company Pvt. Ltd. 93 (2001) DLT 406 wherein a learned Single Judge of this court noted that the basic test to find out whether a trademark is publici juris is whether the mark has come to be so public because of its universal use that it does not confuse or deceive, by the use of it, the purchasers of the goods of the original trader. The learned Single Judge held that as TEMOZOLOMIDE is a generic word and is publici juris and nobody can claim exclusivity in respect of the same. Consequently, the clipped expression ‘TEMO’ derived from clipping word TEMOZOLOMIDE would also be publici juris over which no person could claim exclusive proprietorship.

18. The learned Single Judge also placed reliance on another decision of this Court in Cadila Laboratories Ltd. V. Dabur India Ltd., 1997 PTC (17) 417. The competing marks considered in the said case were `MEXATE’ AND `ZEXATE’. The suffix `EXATE’ was common to both the marks, the only difference being in the prefix `M’ & `Z’. It was held in that case that where the suffix is common, prefix would have to be compared to see whether the marks are deceptively similar. The following extract from Cadila (supra) was quoted by the learned single Judge in the impugned order:

“As has been settled, while ascertaining two rival marks, as to whether they are deceptively similar or not, it is not permissible to dissect the words of the two marks. It is also held that the meticulous comparison of words, letter by letter and syllable by syllable, is not necessary and phonetic or visual similarity of the marks must be considered.”

19. The learned single Judge rejected the appellants reliance on the decision of the Supreme Court in Milment Oftho Industries & Ors V. Allergan Inc., 2004 (28) PTC 585 (SC) on the ground that the said decision was rendered in a case of passing of and not in an action for infringement of trade mark. The competing marks in the case of Milment (supra) were identical. Both the plaintiff and the defendant had adopted `OCUFLOX’ as their trade mark. However, in the present cases the marks of the appellants and the respondents are not identical. For the same reason, the decision in Pfizer Ireland Pharmaceuticals V. Intas Pharmaceuticals & Anr., (2004) 28 PTC 456 (Del) (The Lipitor v. Lipicor case) was distinguished.

20. Reliance placed by the appellants on the decision in Hoechst Pharmaceuticals Ltd & Ors V. Government of India & Ors, 1983 PTC 265 (Del) (DB) was also rejected as it proceeded on the assumption that the appellants products are superior to that of the respondent. The said basis could not be accepted at the prima facie stage, particularly, when the respondent had obtained drug licence under the Drug and Cosmetics Act, 1940. For the same reason, the learned Single Judge rejected the appellants reliance on the decision in Ramdev Food Products (P) Ltd. V. Arvindbhai Rambhai Patel & Ors., (2006) 8 SCC 726.

21. The learned single Judge also held that the trade marks `TEMODAL’ & `TEMODAR’ of the appellants were not identical with the trademarks TEMOKEM and TEMOGET. He held that there was no phonetic or visual similarity between the marks. The Court prima facie came to the conclusion that the suffix `KEM’ and ‘GET’ are entirely different and distinct from the suffix `DAL’ and ‘DAR’ used in the appellants trademarks. Prima facie the comparison of the competing marks did not show phonetic or visual similarity between the respondent’s marks with the trademarks of the appellants and the respondents’ marks were not prone to deceive the consumers. He also took into account the fact that TEMOZOLOMIDE is a schedule ‘H’ drug which could be sold in retail only on the prescription of a registered medical practitioner. The same, though not sufficient to answer a case of “no deception”, was an important factor considering the fact that the product in question is a highly specialized drug and used for specific treatment of a type of brain cancer. The Court also took notice of the fact that in the case of both the respondents, their packaging of the drugs contained the warning “to be supplied against demand from cancer hospitals, institutions and against the prescription of a cancer specialist only.”

22. The immense price difference between the products of the appellants on the one hand and those of the respondents was also taken note of by the learned single Judge. Whereas a set of 5 capsules of 100 mg of TEMODAL/TEMODAR are sold for Rs.33,602/-, 5 capsules of 100 mg each of TEMOKAM are sold for Rs.6,300/- and a set of 5 capsules of 250 mg each of TEMOGET sell for Rs.12,000/-.

23. For the aforesaid reasons, the learned single Judge dismissed the interim injunction applications filed by the appellants in the two suits.

24. Learned counsel for the parties have made elaborate submissions in support of their cases.

25. As noted above, the learned Single Judge has held that the present cases are covered by the Division Bench decision in Astrazeneca (supra). We have, therefore, gone through the said judgment. Before we proceed further, in our view it is essential for us to deal with the appellants’ submissions vis-à-vis Astrazeneca (supra), as the scope of the parties’ submissions which we need to consider in this appeal would depend upon our understanding of the said judgment.

26. In Astrazeneca (supra) both the appellant/plaintiff and the respondent/defendant had got their marks registered, though the appellant/plaintiff had moved an application for rectification in respect of the respondents/defendants trade mark `MEROMER’. The appellant had contended that since 1995-96, the drug under the brand name `MERONEM’ was being marketed by it in over 89 countries. On the other hand, the respondent/defendant had launched their drug `MEROMER’ in India sometime in November, 2004 and they were granted registration of the trade name `MEROMER’ on the basis of their application for registration filed on 2.8.2004 in Class 5. The appellant/plaintiff had contended that the trade name `MEROMER’ of the respondent as a whole be compared with the trade mark of the appellant/plaintiffs i.e. `MERONEM’ and on such comparison it would be clear that both are deceptively similar. On the other hand, the respondent/defendant had contended that an action for infringement was not maintainable in view of the provisions contained in Section 29 & 32(e) of the Act which provide, inter alia, that use of a mark by its registered proprietor shall not constitute infringement.

27. The learned single Judge held that the two trademarks are phonetically not similar and that the two marks are distinct. He also held that if an injunction as sought for is granted by restraining the respondents/defendants from selling, marketing or in any manner dealing with the drug `MEROPENEM’ under the trade name `MEROMER’ there would be irreparable inconvenience caused to the respondents/defendants, whereas the loss of the appellants/plaintiffs if any, which is more financial in nature could be safeguarded by directing the respondent/defendants to maintain accounts of sale under the trade name `MEROMER’. The appellant/plaintiff in Astrazeneca (supra) placed reliance on the decision of the Supreme Court in Cadila Health Care Ltd. V. Cadila Pharmaceuticals Ltd., 2001 PTC 541 (SC). The Division Bench in Astrazeneca culled out the principles laid down by the Supreme Court which would be applicable to a passing off action involving medicinal products. The Supreme Court held that the test to be applied to adjudge the violation of trade mark may not be at par with the case involving non- medicinal products. The Division Bench then proceeded to take notice of an earlier Division Bench judgment of this Court in SBL Limited. V. Himalaya Drug company, 1997 PTC (17) 540 and quoted the following observation of the Court:

“25.(3) Nobody can claim exclusive right to use any word, abbreviation, or acronym which has become publici juris. In the trade of drugs it is common practice to name a drug by the name of the organ or ailment which it treats or the main ingredient of the drug. Such an organ ailment or ingredient being publici juris or generic cannot be owned by anyone for use as trade mark.”

28. The Division Bench in Astrazeneca (supra) also referred to two other decisions in M/s Biofarma V, Sanjay Medical Stores, 1997 PTC (17) 355 and Cadila Laboratories V. Dabur India Limited, 1997 PTC (17) 417 wherein Dr. Mukundakam Sharma, J, as his Lordship then was, had occasion to deal with the trade names `TRIVEDON’ and `FLAREDON’ in the first case and `MEXATE’ and `ZEXATE’ in the second case. The Division Bench culled out the following extract from the decision in M/s Biofarma (supra): “Section 2(d) of the Trade and Merchandise Marks Act 1958, (hereinafter referred to as the Act) defines the word ‘deceptively similar’ as which would be deemed to be deceptively similar to another mark if it so nearly resembles that other mark so as likely to deceive or cause confusion. For deciding the question of deceptive similarity the Courts have laid down the following factors to be considered:

(a) The nature of the marks, i.e. whether the marks are world marks or level marks or composite marks, i.e. both world and level marks.

(b) the degree of resembleness between the marks, phonetically similar and hence similar in idea

(c) the nature of the goods in respect of which they are used to trade marks

(d) the similarity in the nature, character and performance of the goods of the rival traders.

(e) The class of purchasers who are likely to buy”the”goods bearing the marks they require on education and intelligence and a degree of care they are likely to exercise in purchasing the goods.

(f) the mode of purchasing the goods or placing orders for the goods; and

(g) Any other surrounding circumstances.”

29. In M/s Biofarma (supra) it was held that since the opening syllable of the two competing trade marks in the said case are completely different and distinct, and in pharmaceutical trade it is natural to find names of various drugs almost similar to each other or having the same prefix or suffix, the competing marks viz. ‘FLAREDON’ and ‘TRIVEDON’ are dissimilar as the two marks start with distinct dis- similarities so far as the first syllable is concerned. Similarly, in the other decision namely, Cadila Laboratories v. Dabur India Limited (supra) it was held that there is no possibility of ‘Mexate’ being pronounced and read as ‘Zexate’. It was also laid down that meticulous comparison of words, letter by letter and syllable by syllable, is not necessary and phonetic or visual similarity of the marks must be considered.

30. The observation of the Division Bench in Astrazeneca (supra) in paragraph 19 has been taken note of by the learned single Judge and has been extracted by us above. The Division Bench also took note of the fact that there are other similar names with the prefix `MERO’. The Division Bench further observed: –

“20.”……………………… In the decisions of the Supreme Court and this Court also, it has been clearly held that nobody can claim exclusive right to use any word, abbreviation, or acronym which has become publici juris. In the trade of drugs, it is common practice to name a drug by the name of the organ or ailment which it treats or the main ingredient of the drug. Such an organ ailment or ingredient being publici juris or generic cannot be owned by anyone exclusively for use as a trade mark. In the Division Bench decision of this Court in SBL Limited (supra) it was also held that possibility of deception or confusion is reduced practically to nil in view of the fact that the medicine will be sold on medical prescription and by licensed dealers well versed in the field and having knowledge of medicines. It was further held that the two rival marks, ‘Liv.52’ and ‘LIV-T’, contain a common feature, ‘Liv’ which is not only descriptive, but also publici juris and that a customer will tend to ignore the common feature and will pay more attention to uncommon features i.e. ’52’ and ‘T’ and that the two do not have such phonetic similarity so as to make it objectionable.

21. In our considered opinion the facts of the said case are almost similar and squarely applicable to the facts of the present case. ‘Meropenem’ is the molecule which is used for treatment of bacterial infections. In that view of the matter, the abbreviation ‘Mero’ became a generic term, is publici juris and it is distinctive in nature. Consequently, the appellants/plaintiffs cannot claim exclusive right to the use of ‘Mero’ as constituent of any trademark. The possibility of deception or confusion is also reduced practically to nil in view of the fact that the medicine is sold only on prescription by dealers. The common feature in both the competing marks i.e. ‘Mero’ is only descriptive and publici juris and, therefore, the customers would tend to ignore the common feature and would pay more attention to the uncommon feature. Even if they are expressed as a whole, the two did not have any phonetic similarity to make it objectionable. There are at least four other registered users of the prefix ‘Mero’ in India whereas the names of 35 companies using ‘Mero’ trademarks, which have been registered or applied for registration, have been furnished in the pleadings.”

31. The Division Bench held that the two names, namely, ‘MERONEM’ and ‘MEROMER’ were prima facie dissimilar to each other. They were Schedule-H drugs available only on doctor’s prescription. The factum that the same were available only on doctor’s prescription and not as an over the counter medicine was also considered relevant and it was held to have been rightly taken note of by the learned Single Judge. The Division Bench also opined that in its opinion, where the marks are distinct and the features are found to be dis-similar, they are not likely to create any confusion. It was also admitted by the parties that there was a difference in the price of the two products. This fact was also considered relevant by the Division Bench. It was held that the very fact that the two pharmaceutical products, one of the appellants/plaintiffs and the other of the respondent/ defendant, were being sold at different prices itself would ensure that there was no possibility of any deception/confusion, particularly in view of the fact that customer who came with the intention of purchasing the product of the appellants/plaintiffs would never settle for the product of the respondent/defendant which was priced much lower. The Bench held that it was apparent that the trademarks of the two products in question were totally dissimilar and different.

32. No doubt, in Astrazeneca (supra) the additional factor in favour of the respondent/defendants that weighed in the mind of the Court was that the mark of the respondent/defendant had also been registered, in respect whereof the appellant/plaintiff had applied for rectification. However, to us it is clear that the salient features which led the Court to deny the grant of interim injunction to the appellant/plaintiff were:-

a) The admission that `MEROPENEM’ was the active salt/drug in the medicines manufactured by both the parties which was publici juris;

b) That nobody could claim exclusive right to use any word, abbreviation, or acronym which has become publici juris and which is used descriptively;

c) In the trade of drugs it is common practice to name a drug by the name of the organ or ailment which it treats or the main ingredient of the drug. The name of an organ, ailment or ingredient being publici juris or generic if the use of the name is descriptive, the generic name cannot be claimed by anyone for exclusive use as a trade mark;

d) `MERO’ which was common to both the competing marks was taken from `MEROPENEM’ in respect whereof neither party could claim exclusive user for ‘MEROPENEM’ based drug. Both the parties had used three letter suffixes i.e. `NEM’ had been used by the appellant/plaintiff and `MER’ had been used by the respondent/defendant, which were distinct and not deceptive;

e) Even if the competing marks were to be taken as a whole, the suffixes ‘NEM’ and ‘MER’ distinguish and differentiate the two products. When they are taken as a whole, the aforesaid two trademarks could not be said to be either phonetically or visually, or in any manner deceptively similar to each other;

f) The possibility of deception or confusion is reduced to practically `Nil’ in view of the fact that the medicine would be sold by medical prescription and by licenced dealers well versed in the field and having knowledge of medicines. When two rival marks contain a common feature, which is not only descriptive but also publici juris, the consumer will tend to ignore the common feature and will pay more attention to the uncommon feature (for example in the case of Liv-52 V. Liv-T). If the uncommon features do not have phonetic similarity, the offending mark cannot be objected to. The drugs in question are Schedule H drugs available only on Doctor’s prescription and are not over the counter medicines;

g) There was a vast difference in the prices of the two products. This fact by itself would ensure that there is no possibility of any deception/confusion, particularly, in view of the fact that the customer who comes with the intention of purchasing the product of the appellant/plaintiff would never settle for the product of the respondent/defendant which is priced much lower.

33. The fact situation in the two cases in hand are starkly similar to the fact situation in Astrazeneca (supra). If one were to replace ‘MEROPENEM’ with ‘TEMOZOLOMIDE’, ‘MERO’ with ‘TEMO’, ‘MERONEM’ with ‘TEMODAL’/’TEMODAR’, ‘MEROMER’ with ‘TEMOKEM’/’TEMOGET’, ‘NEM’ with ‘DAL’/’DAR’ and ‘MER’ with ‘KEM’/’GET’, and proceed on the basis that ‘TEMO’ is publici juris for TEMOZOLOMIDE, each of the aforesaid factors (a) to (g) would hold true, in principle, in the present cases as well.

34. Mr. Datta submits that the following are the distinguishing features of the present appeals from the decision in Astrazeneca (supra):

i. Plaintiff conceded in Astrazeneca (Supra) that they were not claiming monopoly over just “mero”. But the appellants herein are asserting their exclusive right to use “TEM”/ “TEMO”.

ii. Plaintiff did not specifically dispute that Mero was generic for Moroprenem-based drugs but argued that even if so, Meronem be compared to Meromer, both as a whole. However, the appellants dispute that TEM/TEMO is publici juris for TEMOZOLOMIDE.

iii. Internationally a third party (other than plaintiff) had first adopted `Mero’. But in the present cases, it is the appellants alone who have adopted TEM/TEMO for their TEMOZOLOMIDE based drugs.

iv. No pleading of transborder reputation was made in Astrazeneca (supra). Not a single piece of evidence filed in this regard. But the appellants have not only pleaded, but also demonstrated their transborder reputation.

v. In Astrazeneca(supra), plaintiffs admitted that there were many other Meroprenem-based drugs incorporating `Mero’ as part of the mark but took no action was taken against them. However, the appellants do not admit the use of TEM/TEMO for TEMOZOLOMIDE based drugs and have zealously protected their trademarks.

vi. Plaintiffs disentitled themselves from discretionary relief by filing rectification after filing suit without taking statutory S. 124 permission. However, that is not the case in hand.

vii. Court found that `Mero’ was commonly used; that `Mero’ became publici juris for Meroprenem-based drugs. No such conclusion can be drawn in respect of TEM/TEMO for TEMOZOLOMIDE.

viii. Plaintiffs did not dispute that drugs are the same except only for shelf life owing to different buffering agent. No plea of superior formulation and better therapeutic effect was made in Astrazeneca (supra). However, the appellants’ case is that their drug has a narrow therapeutic index and works differently than the products of the respondents.

ix. In Astrazeneca (supra), there was no recordal of assignment in favour of the appellants/plaintiffs. So none of the Plaintiffs were the recorded proprietors of the registration of `Meronem’. There is no dispute in the present cases with regard to the rights of the appellants to their trademarks.

x. In Astrazeneca (supra), plaintiffs disentitled themselves from discretionary relief by concealing facts/details of assignment of registration. There is no such allegation against the appellants.

xi. In Astrazeneca (supra), plaintiffs did not dispute that different formulations of the same molecule can be different in therapeutic value and thus legitimately different in price. Thus Cadila judgment was applicable. That is not the position in the present cases.

35. The differences enumerated at sl. Nos.(i), (ii) and (vii) pertain to the appellants’ submission that ‘TEM’/’TEMO’ are not publici juris. We will deal with this submission of the appellants. However, the so called differences at sl. Nos.(iii), (iv), (v), (vi), (viii), (ix), (x) and (xi) above, in our view, are not material for the present purpose. These so called differences, in fact, had no bearing on the decision in Astrazeneca (supra), even if it is assumed that they existed, as they did not form the basis of the decision in Astrazeneca (supra). Since in Astrazeneca (supra) it was not asserted by the appellants/plaintiffs that ‘MERO’ is not publici juris, whereas in the present cases it is asserted by the appellants that TEM/TEMO is not publici juris, and the decision in Astrazeneca was primarily founded upon the premise that ‘MERO’ is publici juris being an abbreviation of ‘MEROPENEM’ (which admittedly was generic), in our view that would be the only aspect which would require our consideration to conclude whether or not the decision in Astrazeneca (supra) would apply to the present case. If we conclude that ‘TEM’/’TEMO’ is publici juris for TEMOZOLOMIDE, even the so called differences at sl. Nos.(i), (ii) and (vii) above would not survive and the decision in Astrazeneca (supra) would become applicable squarely to the present cases.

36. We may note that the Division Bench decision in Astrazeneca (supra) has also been followed in a recent decision of this Court in the case of Rhizome Distilleries P. Ltd. and Ors. V. Pernod Ricard S.A. France and Ors, MANU/DE/2742/2009 in FAO(OS) 484/2008 decided on 23.10.2008 by the Division Bench comprising of Vikramajit Sen and V.K.Jain, JJ. In this decision, the Division Bench observed as follows:-
“23. ………….In Astrazeneca UK Limited v. Orchid Chemicals and Pharmaceuticals Ltd. 2007(34) PTC 469 another Division Bench was called upon to decide the dispute in the use of the trademarks MEROMER and MERONEM, in respect of which the learned Single Judge had vacated the ad interim injunction granted earlier. The Division Bench observed that MERO was generic in character and concluded that the suffix in both the rival trademarks were sufficient to draw a distinction between the two. The Bench drew support from the LIV-52 and LIV-T litigation to uphold the refusal of an interim injunction. We can do no better than reproduce a passage from SBL Limited v. Himalaya Drug Company 1997 (17) PTC 540 in which Justice R.C. Lahoti, as his Lordship Chief Justice of India then was, spoke for the Bench in these words – “Nobody can claim exclusive right to use any generic word, abbreviation, or acronym which has become publici jurisdiction. In the trade of drugs it is common practice to name a drug by the name of the organ or ailment which it treats or the main ingredient of”the”drug.”Such”an”organ”ailment or ingredient being public jurisdiction or generic cannot be owned by anyone for use as a trademark”. The jural message, therefore, is clear and unequivocal. If a party chooses to use a generic, descriptive, laudatory or common word, it must realize that it will not be accorded exclusivity in the use of such words. At the most, it may bring a challenge in the nature of passing off and in such an event the Court would look at the rival labels/packagings/trade dresses in order to determine whether a customer possessing a modicum memory and ordinary intelligence may be so confused as to purchase one product believing it to be the other.”

37. We are, therefore, of the view that to get out of the said decision in Astrazeneca (supra), it is essential for the appellant to establish that TEM/TEMO is not publici juris for TEMOZOLOMIDE.

38. There is one other submission urged by Mr. Datta, which we would need to address even if we hold against the appellants that, prima facie, ‘TEM’/’TEMO’ are publici juris, and the decision in Astrazeneca (supra) applies to and binds the appellants’ cases. He has submitted that even if ‘TEM’/’TEMO’ are considered publici juris for TEMOZOLOMIDE, ‘TEM’/’TEMO’ have acquired a secondary meaning for ‘TEMODAL’/’TEMODAR’ on account of the registration and use of the said marks in over 100 countries, and on account of the uninterrupted, longstanding use by the appellants.

39. Mr. Datta submits that a word fragment of the word which denotes the ingredient/pharmaceutical substance, may or may not be generic or publici juris for that pharmaceutical substance. He submits that even if the word fragment is publici juris, such word fragment may acquire distinctiveness for that pharmaceutical substance in the context of certain formulations containing that pharmaceutical substance for certain indications i.e. for the particular goods, by acquiring a secondary meaning from registrations and use, ceasing thereby to be generic/publici juris for that pharmaceutical substance in that limited context. He , therefore, argues that even if it is assumed for the sake of argument that ‘TEMODAL’ and ‘TEMODAR’ were originally generic/publici juris for TEMOZOLOMIDE, TEM/TEMO as incorporated in ‘TEMODAL’ and ‘TEMODAR’ have since acquired distinctiveness by acquiring secondary meaning through, registrations and use of ‘TEMODAL’ and ‘TEMODAR’ in over 100 countries, and thereby TEM/TEMO have ceased to be generic/ publici juris for TEMOZOLOMIDE in the limited context of TEMOZOLOMIDE based brain cancer drugs, and ‘TEM/’TEMO’ have acquired secondary meaning i.e. as abbreviations for ‘TEMODAL’ and ‘TEMODAR’. In support of this submission, Mr. Datta cites example of “Naukri.com”, ‘Superflame’ and ‘Ayur’ and placed reliance on Glaxo Group Ltd. & Ors. v. Vipin Gupta & Ors. 2006 (33) PTC 145 (Del). He also places reliance upon Win-medicare Limited Vs. Somacare Laboratories 1997 (17) PTC 34 (Del), Orchid Chemicals and Pharmaceuticals Ltd. v. United Bio-tech P. Ltd. 2008 (38) PTC 691 (IPAB), Wyeth Holdings Corporation v. Burnet Pharmaceuticals P. Ltd. 2008 (36) PTC 478 (Bom), USV Ltd. v. Cadila Pharmaceuticals Ltd. 2008 (37) PTC 637 (IPAB), USV Ltd. v. IPCA Lab. Ltd. 2003 (26) PTC 21 (Mad), Corn Products Refining Co. v. Shangrila Food Products Ltd. AIR 1960 SC 142, Anglo French Drug Co. (Eastern) Ltd. (Bombay) v. Belco Pharmaceuticals (Haryana) Sup. (2) PTC 452 (P&H) (DB), Water Bush Well Ltd. v. Anil Arora & Others PTC Supp. (1) 849 (Del), Beechem Group PLC v. SRK Pharmaceuticals 2004 (28) PTC 391 (IPAB), State of Maharashtra v. Jethmal Himatmal Jain & Another 1993 (13) PTC 304 (Bom), Biochem Pharmaceutical Industries v Astron Pharmaceuticals & Assistant Registrar Of Trade Marks, Trade Marks Registry 2003 (26) PTC 200 (DEL), Obsurg Biotech Ltd. v. East West Pharma 2008 (36) PTC 542 (IPAB), Lyka Labs Ltd. v. Tamilnadu Dadha Pharmaceuticals Ltd. & Anr. 2006 (33) PTC 512 (IPAB), Baroda Pharma Pvt. Ltd. v. Zeneca Limited UK 2007 (34) PTC 151 (IPAB), Torrent Pharmaceuticals Limited v. The Wellcome Foundation Limited 2002 (24) PTC 580 (GUJ), Ranbaxy Laboratories Limited v. Vets Pharma (P) Limited & Ors. 2005 (31) PTC 116 (IPAB), Orchid Chemicals and Pharmaceuticals Ltd. Vs. United Biotech Pvt. Ltd. and The Registrar of Trade Marks 2008 (38) PTC 691, Wyeth Holdings Corporation and Anr. Vs. Burnet Pharmaceuticals (Pvt.) Ltd. 2008 (36) PTC 478 (Bom), USV Limited Vs. Cadila Pharmaceuticals Limited 2008 (37) PTC 637, Allergen Inc. vs. Sun Pharmaceuticals Industries Ltd. 2006 (32) PTC 495 (CAL), Lyka Labs Ltd. vs. Tamilnadu Dadha Pharmaceuticals Ltd. & Anr., 2006 (33) PTC 512 (IPAB). Remidex Pharma Private Ltd. v. Savita Pharmaceuticals P. Ltd. & Anr. 2006 (33) PTC 157, Pfizer Ireland Pharmaceuticals v. Intas Pharmaceuticals & Anr. 2004 (28) PTC 456, Allergen Inc. v. Chetana Pharmaceuticals 2007 (34) PTC 267 (CAL), Corn Products Refining Co. v. Shangrila Food Products Ltd. AIR 1960 SC 142, Ciba Geigy Limited & Hindustan Ciba – Geigy Ltd. v. Croslands Research Laboratories Ltd. 1995 IPLR 375, Heinz Italia & Anr. v. Dabur India Ltd. 2007 VI A.D. (S.C.) 677, Balsara Hygiene Products Ltd. v. Arm Chaudhury & Anr. 2005 (30) PTC 272 (CAL), Syncom Formulations (India) Ltd. v. SAS Pharmaceuticals 2004 (28) PTC 632 (DEL).

40. Mr. Datta submits that even if the adoption of the respondents marks is assumed to be honest, it can be injuncted if the marks the appellants have acquired distinctiveness. He cites the example of “Dr. Reddy”, which was protected in Dr. Reddy’s Lab. Ltd. v. Reddy Pharmaceuticals Ltd. 2004 (29) PTC 435. He submits that a word-fragment that is generic/ publici juris for a word which is descriptive for certain goods can and does sometimes acquire distinctiveness as a source-cue for those goods. He refers to Plastindia foundation v. Ajeet Singh 2002 (25) 71 (Del).

41. The appellants have also contended that TEMODAL and TEMODAR are valid trademarks and their registrations do not in any way, contravene Section 9 of the Act. It is contended that these registrations are in accordance with the WHO recommendation that the pharmaceutical trademarks “should not be derived from” the INN stems of the constituting chemical salts. It is argued that the marks in question, TEMODAL and TEMODAR cannot be said to be derived from the chemical TEMOZOLOMIDE because: –

a. They are not trivial modification of the word TEMOZOLOMIDE;

b. They are not obtained by the elision of a single syllable from the word TEMOZOLOMIDE;

c. They are not substantially identical to the word TEMOZOLOMIDE;

d. They are not actually descriptive and not merely suggestive of the word TEMOZOLOMIDE;

e. They are not the legal equivalent of the word TEMOZOLOMIDE;

f. They are not so utterly descriptive so as to be disqualified.

42. It is further submitted that the respondents have never filed any rectification or opposition before the Registrar of Trademarks questioning the registration of the appellants on the ground of they being “derived from” TEMOZOLOMIDE.

43. On the other hand, the respondents submit that they have adopted the trademark TEMOKEM/TEMOGET bonafide and have merely followed the practice of the pharmaceutical industry of deriving the name of the medicine from its chemical molecule viz. TEMOZOLOMIDE, which is obviously generic. It is, therefore, contended that the abbreviation or word-fragment, that is, TEM/TEMO of that generic term would also be generic.

44. The next line of argument of the respondent is that, as provided for under Section 17 of the Act, registration of a trademark confers on the proprietor an exclusive right to the use of the trademark taken as a whole and not for parts or fragments of the mark. So the appellants cannot claim exclusivity in respect of word- fragments which are publici juris and descriptive of the generic substance.

45. The respondents also contend that there is no likelihood of confusion between the drugs in question because of the vast price difference in the drugs of the appellants on the one hand, and of the two respondents on the other hand. They also contend that the drugs in question are Schedule-`H’ drugs and that the drugs of the respondents come with a medical warning that they are to be sold only against demand from cancer hospitals, institutions and against the prescription of a Cancer Specialist.

46. The respondents have sought to place reliance on various decisions and upon various published articles and text books on the relevant subject, which shall be referred to a little later.

47. We first proceed to deal with the submissions of Mr. Datta, which relate to his argument that TEM/TEMO is not publici juris for TEMOZOLOMIDE.

48. The crux of the appellants contention is that the word- fragment TEM/TEMO of the word-name TEMOZOLOMIDE Is not generic/ publici juris, as it is not so recognized either by:

i) The WHO (in its notified list of INN-Stems or in its List of Radicals-Groups);
ii) A standard dictionary or medical dictionary;
iii) The market proliferation of brands of formulations of the pharmaceutical substance incorporating the word-fragment TEM/TEMO, which market proliferation is a) uncontested; b) longstanding (c) extensive and (d) significant.

49. The expression “publici juris” is defined in Black’s Law Dictionary (Eighth Edition ) as-
“of public right; of importance to or available to the public a city holds title to its streets as property publici juris> words that are in general or common use and that are merely descriptive and publici juris and cannot be appropriated as a trademark.”

50. The concept of ‘public’, for the purpose of determining whether a word is publici juris for an article or thing would depend on what that article or thing is. For example, if the article or thing is one typically belonging to the field of aeronautics, the knowledge of the general public i.e. the common man on the street, of the meaning of the word would not be relevant. The meaning of the word would have to be gathered from the knowledge of the ‘public’ knowledgeable in the field of aeronautics, to determine whether the word is publici juris for the article or thing for which it is claimed to be publici juris. Similarly, to determine whether ‘TEM’/’TEMO’ is publici juris for TEMOZOLOMIDE, the query would have to be directed to those who would normally be expected to have knowledge of what TEMOZOLOMIDE and ‘TEM’/’TEMO’ mean. If people engaged in the treatment of, and research in the field of brain cancer use the word ‘TEM’/’TEMO’ for TEMOZOLOMIDE, in our view, it would be fair to conclude that ‘TEM’/’TEMO’ are publici juris for TEMOZOLOMIDE.

51. The submission of the appellants that ‘TEM’/’TEMO’ is not generic/ publici juris for TEMOZOLOMIDE because it is not notified as a INN STEM or is not listed as one of the radical groups by the WHO; that it is not so mentioned in a standard dictionary or medical dictionary is fallacious, as it proceeds on the assumption that for a medicine related word/term to become publici juris, it must either to listed as an INN Stem or a radical group by the WHO or by a standard dictionary or medical dictionary. There is nothing to suggest that these sources are exhaustive of medical terms which are publici juris. Whether or not a medical term is publici juris is an issue of fact, which would have to be established at the trial of the suits. At this stage only a prima facie view has to be formed, which is not the final view. Therefore, if there is some material available to show that TEM/TEMO has been used to describe TEMOZOLOMIDE or any other chemical compound, TEM/TEMO would, prima facie, be publici juris.

52. The respondents have placed on record a medical study published in the journal of nuero-oncology by the Duke University, wherein TEMO has been used for TEMOZOLOMIDE. There is another article on the subject of “Synthesis and antibacterial activity of dual– action agents of a β-lactam antibiotic with cytotoxic agent mitozolomide or TEMOZOLOMIDE, wherein TEMOZOLOMIDE has been denoted by TEMO.

53. It is also interesting to note from the above mentioned latter article that there is another chemical compound by the name of MITOZOLOMIDE. The extension ‘ZOLOMIDE’ itself appears to be publici juris for a group of chemical compounds having some common features/properties. Therefore, it appears to be quite natural to refer to TEMOZOLOMIDE as ‘TEMO’ just as MITOZOLOMIDE is described as ‘MITO’.

54. We may also take note of the fact that on the website www.allacronyms.com on keying the abbreviation ‘TEM’, the same leads to, inter alia, TEMOZOLOMIDE. On the website www.medilexicom.com a search for medical abbreviation ‘TEM’, inter alia, results in ‘TEMOZEPAM’ and TEMOZOLOMIDE. We are not suggesting that these instances establish that ‘TEM’/’TEMO’ are publici juris for TEMOZOLOMIDE. But these are instances, which establish that the materials and documents produced by the appellants, to show that ‘TEM’/’TEMO’ refer to TEMODAL and/or TEMODAR are not exhaustive to conclude, at this interlocutory stage, that ‘TEM’/’TEMO’ is not publici juris for TEMOZOLOMIDE, and that they necessarily refer exclusively to TEMODAL and TEMODAR.

55. McCarthy in Trademarks and Unfair Competition, inter alia, states:

“Clearly, one seller cannot appropriate a previously used generic name of a thing and claim exclusive rights in it as a “trademark” for that thing. Similarly, if one seller develops trademark rights in a term which a majority of the relevant public then appropriates as the name of a product, the mark is a victim of
“genericide” and trademark rights may cease.”

“An abbreviation of a generic name which still conveys to the buyer the original generic connotation of the abbreviated name is still generic.”

56. The Madras High Court in Indo-Pharma Pharmaceuticals Works Ltd., Mumbai v. Citadel Fine Pharmaceuticals Ltd., Madras 1998 (18) PTC (DB) (Mad) while dealing with two marks ‘Enerjex’ and ‘Enerjase’ held that the abbreviation of a generic word will also be generic. Reliance was placed on the aforesaid extract from McCarthy in Trademarks and Unfair Competition. Since the components ‘Jase’ and ‘Jex’ were completely dissimilar, injunction was refused by the Court to the plaintiff. The Madras High Court held as follows:
“The two rival marks ‘ENERJEX’ and ‘ENERJASE’ contain the common feature ‘ENERJ’ which is not only descriptive but also publici juris. Therefore a customer will tend to ignore the common feature and will pay more attention to uncommon features i.e `JEX’ and `JASE’. These two cannot be said to have such phonetic similarity so as to make it objectionable.”

“So the word `ENERG/J’ used as a prefix in both the trade names is the abbreviation of the generic term of the English word `energy’. As such, it is descriptive in nature and common in usage. Nobody can claim an exclusive right to the use of the word `ENERG/J’ as the constituent of any trademark.”

57. In The Cellular Clothing Company (supra), the Court held the following:-

“If a man invents a new article and protects it by a patent then during the term of the patent, he has of course a legal monopoly, but when the Patent expires all the world may make the article, and for that purpose use the name which the Patentee has attached to it during the time when he had the legal monopoly of the manufacture. But my Lords, the same thing in principle must apply where a man has not taken out a Patent, as in the present case, but has a virtual monopoly because other manufacturers, although they are entitled to do so, have not in fact commenced to make the article.”(emphasis supplied).

58. The argument of the appellants that to establish that the term TEM/TEMO is publici juris, there should be market proliferation of various brands of ‘TEMOZOLOMIDE’ incorporating the word fragment TEM/TEMO, which market proliferation is un-contested, longstanding, extensive and significant, cannot be accepted in our view, particularly in the light of the fact that the products of the appellants’ enjoyed a patent and, consequently, the appellants enjoyed a statutory monopoly. It is only on account of the fact that the product patent in this country was not protected till the amendment in the law in 2005, that the respondents’ have been able to manufacture the said drug. Obviously, during the tenure of the said statutory monopoly, none could validly manufacture and sell the said drug by whatever name.

59. Therefore, merely because the molecule TEMOZOLOMIDE may have been patented and commercially pioneered by the appellants, they do not become entitled, on the statutorily protected monopoly disappearing, to prevent others from calling, what the molecule is, by its generic name, and such other names which are
“publicly” known to describe and denote it.

60. In McCain International Limited (supra), the Court held:

“Here the plaintiffs have brought the article oven chips before the world, they have given it a name descriptive of that article, they have had a monopoly in it before other persons have entered into competition with them and they cannot now claim a monopoly of that name. All they can claim is that other person who make the same article shall distinguish their products by the appropriate means, which the defendants have adopted in this case, of making it quite clear that the products they produce come from County Fair and Birds Eye respectively.”

61. TEMO has been used for TEMOZOLOMIDE by several parties apart from the respondents, namely, Cipla Limited, who use the brand name ‘TEMOSIDE’, Netco Pharma Limited, who use the brand name ‘TEMONET'”and”Dabur”Pharma”Limited,”who”use”the”brand”name ‘TEMOZEM’.”There are a number of other similar marks with the prefix TEM/TEMO for drugs, which are present in the market. The appellants have themselves pointed out that TEM/TEMO is contained as a part of the trade mark of a variety of different pharmacological groups, such as (i) TEMSIROLIMUS (an anti kidney-cancer agent); (ii) TEMOPORFIN (a photosensitizing anti cancer agent like TEMOZOLOMIDE); (iii) TEMOCILLIN (antibiotic); (iv) TEMOCAPRIL (anti hypertensive). We may also notice that from the documents filed by the appellants it appears that there are various other drugs having the prefix TEM/TEMO such as TEMARIL- trademark for preparations of trimeprazine tartrate; TEMAZEPAM- a benzodiazepine used as a sedative and hypnotic in the treatment of insomnia, administered orally; TEMEFOS- USAN for temephos; TEMEPHOS- an organophosphorous insecticide used a a larvicide for control of mosquitoes and blackflies and as a veterinary ectoparasiticide; TEMODOX- a veterinary growth stimulant; TEMOVATE- trademark for preparations of clobetasol propionate.

62. It has been repeatedly recognized that in the trade of drugs it is a common practice to name a drug on the basis of the name of its active chemical compound or salt, or the disease it seeks to remedy, or the particular organ it is intended to treat. The name of such an ingredient or compound, ailment or organ being in the public domain and of generic nature, which has been used descriptively, cannot be claimed by anyone for use exclusively as only his/her trademark.

63. From the materials produced by the respondent, it is evident that TEM/TEMO have been employed in place of TEMOZOLOMIDE or as abbreviations for certain other medicines. No doubt TEM/TEMO have also been used in place of ‘TEMODAL’ and ‘TEMODAR’. However, there is nothing to suggest that TEM/TEMO mean, and only mean, TEMODAL/TEMODAR and nothing else. Even when TEM/TEMO is used”in relation to ‘TEMODAL’ and ‘TEMODAR’, the reference is actually to the chemical compound TEMOZOLOMIDE, which is the active ingredient in ‘TEMODAL’ and ‘TEMODAR’.

64. Consequently, in our view, prima facie the word fragment TEM/TEMO is publici juris and also generic for and descriptive of the chemical compound, TEMOZOLOMIDE, and, therefore, the appellants cannot claim the exclusive right to use thereof. The decision in Astrazeneca (supra) has rightly been held to apply on all fours to the cases in hand.

65. As the appellants have chosen to brand their product with a generic and descriptive prefix ‘TEMO’, any other person entering the market would be entitled to use the said term to identify the product in question. If the appellants were desirous of avoiding such a situation they should have branded their drug with a unique name instead of a descriptive name. [see Rhizome Distilleries P. Ltd. (supra)]

66. We now proceed to consider the second plea of Mr. Datta, that assuming that ‘TEM’/’TEMO’ are publici juris for TEMOZOLOMIDE, ‘TEM’/’TEMO’ have acquired a secondary meaning for TEMODAL and TEMODAR for the reasons stated by him and that, therefore, the appellants alone are entitled to the exclusive use of the same. Since various cases have been cited in this regard, we proceed to deal with each one of them.

67. In Glaxo Group (supra), the court was dealing with the plaintiff’s marks ‘BETNOVATE’ and ‘CROCIN’ on the one hand and ‘BETAVAT’ and ‘CORINAL’ on the other hand. The court held on a comparison of the various features in the get up of the competing products, that the products of the defendants could be passed off as that of the plaintiff. The court held that the mark ‘CORINAL’ does not appear to be deceptively or confusingly similar to the trademark ‘CROCIN’, but confusion is sought to be created by adopting similar strip/packaging as that of the plaintiff. The defendant was found to be using the logo ‘SGS’ in the same manner as the plaintiff’s logo ‘GSK’ within a heart shaped device. The court found that even though the competing marks were not identical, the marks used by the defendants so nearly resembled the plaintiff’s trademarks as was likely to deceive or cause confusion in relation to the similar goods, on account of the adoption of the similar getup by the defendant in respect of its products. The above was the basis for the grant of injunction by the Court in favour of the plaintiff.

68. This decision does not advance the proposition canvassed by the appellants that even if TEM/TEMO were originally generic/publici juris for TEMOZOLOMIDE, TEM/TEMO as incorporated in ‘TEMODAL’ and ‘TEMODAR’ have since acquired distinctiveness and that TEM/TEMO have acquired a secondary meaning through registration and use of ‘TEMODAL’ and ‘TEOMDAR’ in over hundred countries and thereby ceased to be generic/publici juris for TEMOZOLOMIDE in the context of TEMOZOLOMIDE based brain cancer drugs. The position in the following cases cited by the appellants is the same, which are discussed below in paragraphs 69 to 88. The grant of injunction in all these cases, it would be seen, was, inter alia, either on account of similar get up or on account of minimal difference in the trade name leading to structural and/or phonetic and/or visual similarity in the competing marks, and not on account of the Court allowing appropriation of a term which is publici juris by the plaintiff on the ground that the publici juris term has acquired a secondary meaning to denote the product of the plaintiff alone.

69. In Win-medicare Limited (supra) the plaintiff had brought the action for passing off. The competing trademarks were ‘DICLOMOL’ of the plaintiff and ‘DICMOL’ of the defendant. It was not an action founded upon Section 29 of the Act for infringement of registered trademark. Neither of the two trademarks in question in that case were registered. The court concluded that the two marks were structurally and phonetically similar which gave the impression that the defendant had copied the mark of the plaintiff. It was on this basis that the court had granted the injunction.”The difference in ‘DICLOMOL’ and ‘DICMOL’ was only that the two letters ‘LO’ had been removed from the plaintiff’s mark by the defendant while coining its own mark ‘DICMOL’. On account of the structural and phonetic similarity the court had granted the injunction.

70. Similarly, in Wyeth Holdings (supra) while considering whether the mark “FOLV’ of the defendant was deceptively similar to the mark ‘FOLVITE’ of the plaintiff, the court held that the two competing marks have to be considered as a whole. The structure of the mark visually and phonetically must be borne in mind. The image that the court must have is that of the quintessential common man. It was held: “when the Judge looks at phonetics, the sound which accompanies the pronunciation of the mark is the sound of the mark to an ordinary purchaser bereft of the niceties of language.” Neither the term ‘FOL’ derived from ‘FOLIC ACID’; nor the term ‘VITE’ derived from ‘VITAMIN’ were treated as being the proprietary of the plaintiff and that was not the basis of the said decision.

71. In USV Ltd. v. Cadila Pharmaceuticals Ltd (supra) the Intellectual Property Board was considering the two competing marks ‘PIOZULIN’ and ‘PIOZ’. Both were held to be structurally one and the same and they even looked alike. It was for this reason that the Appellate Board declared the registration obtained by the respondent to be invalid.

72. In USV Ltd. v. IPCA Lab. Ltd. (supra) the Madras High Court was considering the two competing marks namely, ‘PIOZ’ of the plaintiff and ‘PIOZED’ of the defendant. Since they were found to be phonetically similar and were drugs intended to be used for the same disease, the court injuncted the defendant from adopting the mark ‘PIOZED’. The active ingredient in the two drugs in question was ‘PIOGLITAZONE HYDROCLORIDE’. It was held that the prescription given by the doctors for purchase of medicines ‘PIOZ’ or ‘PIOZED’ will be in scribbling and the spelling normally written by doctors may not be read by common man and even by the English knowing literates. Even the chemists in the drug stores may not be able to make out a distinction between the ‘PIOZ’ and ‘PIOZED’ scribbled by the doctors. It was on this account that the court granted injunction in favour of the plaintiff. The court even in this case did not hold that the plaintiff was entitled to the exclusive use of the abbreviated version of the generic active compound in the medicine namely “PIOGLITAZONE HYDROCLORIDE”.

73. In Anglo French Co. (supra) the Punjab and Haryana High Court was concerned with the plaintiffs registered mark ‘BEPLEX’ and the defendant’s mark ‘BELPLEX’ being used for vitamin ‘B COMPLEX’ tablets. Even in this case the court concluded that there was deceptive similarity both phonetic and visual in the goods manufactured by the parties which is likely to cause confusion and deception in the minds of the purchasers. On this account the court granted injunction in favour of the appellant/plaintiff. This decision also, therefore, is of no avail to the appellants.

74. In Water Bush Well (supra) a learned Single Judge of this court was dealing with a claim for infringement of trademark ‘AMCLOX’ of the plaintiff, by the defendant who had adopted ‘AMPCLOX’.”The court granted injunction on the ground that ‘AMCLOX’ and ‘AMPCLOX- 500’ were both visually and phonetically similar to deceive and to cause confusion amongst the buyers of the products. The court also took into account that the mere insertion of the letter ‘P’ in the defendant’s mark would not make a difference while hearing the name of the mark. The court also compared the colour combination of the capsules. No doubt, the argument that the drug was a Schedule-H drug was advanced by the defendant, and the same was rejected by the court on the ground that for a minor complaint or indisposition one does not always go to the medical practitioner and the same medical preparation (even though they are Schedule H drugs) would be administered by a patient/person by directly approaching the chemist, in our view the said distinction cannot be held good in the present case as we are dealing with a drug meant for treating brain cancer which, by no means, can be described as a minor complaint or indisposition. As noticed by the learned Single Judge the medicines/drugs in question contain a warning that the same can be sold only on the prescription of not just any ordinary medical practitioner, but on the prescription of only a Cancer Hospital or Cancer Specialist. We may hasten to add that we are not commenting on the view of the learned Single Judge, as aforesaid, one way or another, as it is not necessary for us to do so in view of the materially different factual context. This decision also, therefore does not support the appellants cases.

75. In Biochem Pharmaceuticals Limited (supra) the learned Single Judge of this Court was concerned with the trademarks ‘BIOCILIN’ and ‘BICILLIN’ in respect of the same drug. Once again the court concluded that there was phonetic deceptive similarity in the two marks which is likely to lead to confusion and deception. Though the relief of injunction was granted, it was not on the basis that the appellant was entitled to appropriate the generic name of the two drugs in question namely ‘AMPICILLIN’ and ‘CLOXACILLIN’. In this case both”the”parties”were”manufacturing”the”drug”by combining ‘AMPICILLIN’ and ‘CLOXACILLIN’.”The appellant had used the mark ‘BIOCILLIN’ as it was a combination of two drugs. Consequently, ‘Bio’, of which ‘Bi’ means two, was used as a prefix to coin the word ‘BIOCILLIN’. The respondent had done the same and had merely dropped the letter ‘O’ and introduced an extra ‘L’ in the trademark adopted by it. This case, therefore, has no relevance.

76. Beecham Group PLC (supra) is a decision of Intellectual Property Board, Chennai in respect of the application made by the applicant for registration of the mark ‘LYMOXYL’. The trademark ‘AMOXIL’ belonged to the objector. Once again the court held that the mark adopted by the applicant was phonetically, structurally and deceptively similar to that of the objector. The only difference in the applicants trade name was the employment of the letters ‘LY’ and ‘M’. Like the earlier decisions this decision does not advance the proposition propounded by the appellants, and is, therefore, of no relevance.

77. In Obsurge Biotech Limited (supra) the common trademark was ‘SERADIC’. Since the two marks were identical in respect of medicinal preparations, the rectification application was allowed. This case has absolutely no relevance for our purpose.

78. Lyka Labs (supra) also is a decision of IPAB, Chennai dealing with the marks ‘TAMIACIN’ and ‘TAMNIFO’ on the one hand and the mark ‘TAMIN’ on the other hand. The Appellate Board was examining whether ‘TAMIN'”is”deceptively similar to the”registered”marks ‘TAMIACIN’ and ‘TAMNIFO’. The Board held that the mark ‘TAMIN’ was phonetically, visually or structurally similar to the respondents mark ‘TAMIACIN’. Once again this decision did not proceed on the basis that a party could appropriate to itself the generic name or the abbreviation of the chemical active compound in a drug.

79. Baroda Pharma Private Limited (supra) is also a decision of the IPAB, Chennai dealing with the mark ‘TENOREX’ and ‘TENORMIN’. ‘TENOREX’ was not permitted to be registered on the opposition of the proprietor of the mark ‘TENORMIN’ on the ground of deceptive and phonetic similarity which was likely to cause confusion. We find that though the argument of publici juris in respect of the prefix ‘TENOR’ did arise, the same was not gone into by the Appellate Board. Consequently, this decision does not help the appellants.

80. Torrent Pharmaceuticals Limited (supra) is a decision of the Gujarat High Court dealing with the mark ‘TROVIREX’, which was objected to by the proprietor of the mark ‘ZOVIREX’. The registration of ‘TROVIREX’ was denied on the ground that ‘TROVIREX’ had the highest degree of resemblance, visually and phonetically and the same was likely to deceive or cause confusion in the minds of the purchasers of the drug. The Gujarat High Court does not appear to have gone into the issue of publici juris in respect of the concerned active chemical compound, disease, organ on the basis of which the drug ‘ZOVIREX’ might have been named. This judgment is, therefore, of no assistance to the appellants.

81. Ranbaxy Laboratories (supra) is also a case decided by the IPAB, Chennai. The trademark under examination was ‘LEVASOL’, in respect whereof opposition was filed by the proprietor of the trademark ‘LEMASOL’. ‘LEVASOL’ was a veterinary medicine, whereas ‘LEMASOL’ was a pharmaceutical preparation for human use. The IPAB held that there was phonetic and visual identity, inasmuch as, for the letter ‘M’ in the objector’s drug, the letter ‘V’ had been substituted by the applicant. The drug of both the parties fell within the same class 5 and the distribution channel of the goods being the same, there was likelihood of confusion. This case also does not throw any light on the generic chemically active compound on which either of the two drugs were based. It has absolutely no relevance to the cases in hand.

82. Allergen Inc. v. Sun Pharmaceuticals Industries Ltd. (supra) is the decision of the Calcutta High Court. The suit had been filed alleging passing off of the ophthalmic solution under the trademark name ‘OCUFLOX’.”The defendant was also marketing its product, which could be used both for treatment of eyes as well as ears with the same tradename ‘OCUFLOX’.”It was for this reason, the Court had granted the injunction. This case, therefore, has absolutely no bearing on the present appeals.

83. Allergen Inc. v. Chetana Pharmaceuticals (supra) is a case decided by the Calcutta High Court in respect of the trademark ‘OXYLINE’. The plaintiff was the proprietor of the said mark in relation to a drug for ophthalmic use. The defendant used the identical mark in relation to its drug i.e. nasal drops. Since the marks were identical, injunction followed. This case too has no bearing on the issue in hand.

84. Remidex Pharma Private Ltd. (supra) is a decision of a learned Single Judge of this Court. The competing marks were ‘ZEVIT’ and ‘EVIT’. The defendant had adopted ‘EVIT’ in respect of its vitamin tablets. The defence of the defendant was that the clipping ‘VIT’ had been taken from word vitamin and was, therefore, generic. Since the product of the defendant was vitamin E tablets, the defendant claimed bonafide adoption of the mark ‘EVIT’.”The learned Single Judge while confirming the injunction in favour of the plaintiff observed that on comparison of ‘ZEVIT’ with ‘EVIT’, the prefixes ‘ZE’ and ‘E’ of ‘ZEVIT’ and”‘EVIT’, respectively, are phonetically similar. It was, on this account that the Court held that the mark ‘EVIT’ is deceptively similar to the registered mark ‘ZEVIT’ of the plaintiff. It is not that the Court proceeded on the basis that the plaintiff had the right to appropriate to itself the generic and phonetic term ‘VIT’ derived from vitamin. Consequently, this case too does not advance the case of the appellants.

85. In Pfizer Ireland Pharmaceuticals (supra) the Court was dealing with the passing off action. The court found that there was phonetic”and”visual”similarity”between”‘LIPITOR'”and”‘LIPICOR’, inasmuch as, only one letter i.e. ‘T’ had been replaced by ‘C’. It was, on this account, that the Court had granted the requisite injunction in favour of the plaintiff.

86. In Heinz Italia & Anr. (supra) the Supreme Court was dealing”with”the”marks”‘GLUCON-D'”of”the”appellant/plaintiff”and ‘GLUCOSE-D’ of the respondent/defendant.”The injunction granted in this case was, again, not founded upon the recognition of any exclusive right of the plaintiff to appropriate the word ‘GLUCOSE’ which is generic.”The injunction was granted on the basis that ‘GLUCON-D’ and”‘GLUCOSE-D'”appear”to”have”phonetic”similarity.”The color scheme in the packaging of the two competing products was also found to be more or less identical. The court found that the packaging and getup of the two competing products was almost identical. It was on this basis that the injunction was granted.

87. The decision in Balsara Hygiene Products Ltd. (supra) is also of no use to the appellants. The court while recognizing the legal principle that a party cannot have any monopoly right to use a generic word, concluded in the facts of that case that the plaintiff had not used a generic word and on that basis the defence of the defendant was rejected in respect of the defendant’s marks ‘ODOJA’ in comparison with”the”plaintiff’s”registered”trademarks”‘ODONIL’,”‘ODOPIC'”and ‘ODOMOS’.”The Court held that ‘ODO’ was an adoption and/or coinage of the plaintiff and was not a dictionary word. Consequently, the court, in fact, rejected the argument that ‘ODO’ was publici juris for ‘ODOUR’. This case too has no application in the facts of the present cases.

88. Syncom Formulations (India) Ltd. (supra) was a case of passing off in respect of the plaintiff’s trademark ‘REGULIN FORTE’ by the defendant who adopted the mark ‘REGU-30’. This Court dismissed the first appeal preferred by the defendant against the grant of injunction by the Trial Court in favor of the plaintiff. In the facts of that case the Court found that the mark of the defendant was confusing and deceptively similar to that of the plaintiff and the product of the defendant could be passed off as that of the plaintiff. This case also has absolutely no bearing on the present appeals.

89. The decision in Ciba Geigy Ltd.(supra), in our view, is also of no assistance to the appellants, as this case proceeded on the foundation that the medicine vendor may not know the difference, and he may unknowingly give the product of the defendant (‘VOLTA-K’ in this case) in place of the product of the plaintiff i.e. ‘VOLTAREN’. In the facts of the present cases, considering the nature of the drug, the warning endorsed on the drugs of the respondents, and the price difference in the drugs of the appellants on the one hand and those of the respondents on the other hand, in our view, there is no scope for any such confusion, and this decision has no bearing on the present appeals.

90. Corn Products Refining Co. (supra) was a case where the Supreme Court was concerned with the claim for registration made in respect of the mark ‘GLUVITA’ in respect of the biscuits made by the respondent. The appellant before the Supreme Court had got the mark ‘GLUCOVITA’ registered in respect of ‘DEXTROSE’, a substance used as food or as an ingredient in food; glucose and food. This is not a decision dealing with medicines/drugs. The relief granted to the appellant in the said case was primarily founded upon the similarity in the marks in question namely ‘GLUVITA’ and ‘GLUCOVITA’.”The letters `CO’ alone had been dropped by the respondent from the mark of the appellant to coin the mark `GLUVITA’. It does not advance the submission of the appellants, as the ratio of this decision is not to the effect that the word fragment of a generic/publici juris word can be appropriated by the person who may have used the word fragment as a part of a descriptive trademark.

91. The State of Maharashtra v. Jethmal Himatmal Jain (supra) is not a case dealing with infringement of trademark or even with passing off. The same is, therefore, of no relevance whatsoever.

92. The appellants have relied upon the decision Plastindia Foundation (supra) in support of their submission that a word fragment of a word that is generic/publici juris which is descriptive of certain goods, can and does sometimes acquire distinctiveness as a source que for those goods. In Plastindia Foundation (supra) the plaintiff had adopted the name ‘Plastindia Foundation’ for its trust, which was an apex body of associations of all the leading organizations and institutes concerned, directly or indirectly, with the manufacture, sale or promotion of plastics in India. The defendant adopted the same mark ‘PlastIndia’ for their magazine. The court granted an injunction in favour of the plaintiff and against the defendant from using the said mark on the basis that the adoption of ‘PlastIndia’ by the defendant may lead to the confusion that the magazine ‘PlastIndia’ has its source at, or that it has connection with Plastindia Foundation i.e. the plaintiff.

93. We do not see the relevance of this decision in the present context. Plastindia was a coined word derived from generic words Plastic and India. The Court did not hold that the Plaintiff alone was entitled to appropriate ‘Plast’ or ‘India’, which are publici juris/generic. Pertinently, the Court permitted the defendant to use, inter alia, “PLAST WORLD” and “WORLD PLAST”. It follows that others too would be entitled to use these generic and descriptive words. However, that does not mean that another person can use the identical or deceptively similar name/mark which is likely to cause confusion and deception. Because the Court found that the defendants mark was more or less identical with that of the plaintiff, and could lead to confusion and deception with regard to the source of the defendants’ magazine, the Court granted the injunction in favour of the plaintiff. Pertinently, this is also not a case relating to drugs.

94. TEMOZOLOMIDE is a generic word. TEM/TEMO, as we have already seen, is publici juris for TEMOZOLOMIDE. TEM/TEMO is not generic for the trademarks ‘TEMODAL’ and ‘TEMODAR’ of the appellant, but for TEMOZOLOMIDE. The use of TEM/TEMO in TEMODAL/TEMODAR is descriptive of ‘TEMOZOLOMIDE’. The use of the marks TEMOKEM and TEMOGET by the respondents, therefore, possibly cannot lead to the inference that TEMOKEM and TEMOGET have been sourced from the manufacturers of TEMODAL and TEMODAR i.e. from the appellants. Such a conclusion is also contra-indicated by the vast difference in price of the products of the appellants and the respondents.

95. The SUPERFLAME case (Globe Super Parts v. Blue Super Flame Industries AIR 1986 DELHI 245) was a passing off action by the plaintiff who was the proprietor of the unregistered mark “SUPERFLAME”. The defendants were using the mark “SUPERFLAME” for the same articles, namely, gas appliances. The Court held that the mark “SUPERFLAME” was a coined word. It was held that “SUPERFLAME” was not descriptive of gas stoves. For this reason, the Court granted permanent injunction to restrain the defendants from using the word “SUPERFLAME”, as the plaintiff was the prior user of the said coined word. Such is not the claim in the present appeals.

96. Dr. Reddy’s Laboratories Ltd. v.”Reddy Pharmaceuticals Ltd. 2004 (29) PTC 435 (Del) was a case of passing off. The Court came to the conclusion that the adoption of the mark “REDDY” by the defendant was fraudulent to encash upon the trade reputation and goodwill of the plaintiff built over two decades. The Court found that there was phonetic similarity between “DR. REDDY” and “REDDY” capable of creating confusion. The Court also found deceptive similarity in the names and packaging of the drugs of the defendant with those of the plaintiff. It is for this reason that the Court had granted injunction. The Court did not declare that “REDDY” could not be used by another person by that name bonafide, even if such user is not deceptively similar to that of the plaintiffs. This case, therefore, has no relevance in the present context.

97. Ayurherbs Pharmaceuticals Private Limited v. Three-N- Products Private Limited 2007 (35) PTC 261 (Del) was a case where the plaintiff, the proprietor of the mark “AYUR” initiated an action against the defendant, who had adopted a business/tradename “Ayurherbs Pharmaceuticals Private Limited”.”The defendant was also in the same trade, namely, manufacture and sale of ayurvedic products, as the plaintiff, who was selling its ayurvedic products under the trademark “AYUR”. The Court dismissed the defendant’s first appeal against the grant of injunction by the trial Court, on the premise that the use of the name “AYUR” by the appellant is likely to cause confusion in the mind of the ordinary purchaser and, consequently, it was held that the adoption of the name “AYUR” by the appellant in its trade name amounts to passing off. In this case the Court did not hold that “AYUR” was publici juris for ayurveda or that the plaintiff was exclusively entitled to appropriate to itself the use of the generic term ayurveda or its abbreviation “AYUR”.

98. The”second”‘Ayur'”case”reported”as”Three-N-Products Private Ltd. v. Karnataka Soaps & Detergents Ltd. & Anr. 2007 (34) PTC 515 (Cal) was also a passing off action. As the plaintiff was the prior user of “AYUR”, the defendant was injuncted from using the said mark for soaps. This case too is of no relevance for our purpose.

99. In Indo Edge (India) Pvt. Ltd. & Anr. v. Shailesh Gupta & Anr. 2002 (24) PTC 355 (Del) the plaintiff had developed the domain name “NAUKRI.COM” used to provide job placement services and employment with the peculiarity that the plaintiff had adopted a Hindi word with English script. It was held on the basis of press reports and write ups that the domain name of the plaintiff is unique and distinct which has a distinctive character and which has assumed a reputation in the market. The defendant, who had a similar business with the domain name “jobsourceindia.com”, had also adopted “naukari.com”. The”Court”held”that””If”a”product”of”a”particular”character”or composition is marketed in a particular area or place under a descriptive name and gained a reputation thereunder, that name which distinguished if from competing products of different composition, the goodwill in the name of those entitled to make use of”it there was protected against deceptive use there of the name by competitors”. The Court referred to McCarthy on Trademarks and Unfair Competition Vol.2, 3rd Edition, wherein in para 12.5(2) it was stated that in order to obtain some form of relief on a “passing off” claim, the user of the generic terms must prove some false or confusing usage by the newcomer above and beyond mere us of generic name. The only difference between the plaintiff’s and the defendant’s domain names was the insertion of the letter ‘A’ between the letters ‘K’ and ‘R’ in the word “Naukri”. It was further held that even if “Naukri” is assumed to be a generic word, the adoption of a similar mark by the defendant, when the plaintiff’s mark had attained distinctiveness and was associated with the business of the plaintiff for a considerable time, was dishonest and in bad faith. It is for these reasons that the Court had granted the injunction in favour of the plaintiff. In our view, this decision does not advance the case of the appellants, as, in our opinion, the marks of the appellants on the one hand and those of the respondents on the other hand are not phonetic and visually similar.

100. In Cadila Health Care Ltd. V. Cadila Pharmaceuticals Ltd. (supra) the two competing trademarks were ‘FALCIGO’ of the plaintiff and ‘FALCITAB’ of the defendant. Both the drugs were meant to cure cerebral malaria commonly known as “falcipharum”. The drugs were schedule ‘L’ drugs which means, that the drugs were not at all available for sale in retail and could be supplied only to hospitals and clinics. Consequently, there was even stricter regime for the sale of such drugs when compared to Schedule ‘H’ drugs. There was also substantial price difference in the two drugs. The Trial Court as well as the High Court (in First Appeal) found that the packaging and getup of the two products was not deceptively similar or confusing. The extra Assistant Judge, Vadodra declined the interim injunction sought by the plaintiff. This order was upheld in First Appeal. The Supreme Court also declined to interfere with the order. The reasons given by the Supreme Court for its decision, and the principles to be kept in mind while dealing with an action for infringement or passing off, specifically in the cases relating to medical products, were subsequently set out by the Supreme Court in the aforesaid judgment. The Court did not grant the interim injunction for the reason that it felt that there was possibility of evidence being required on merits of the case. The Court felt that expression of opinion on merits of the case by the Supreme Court at the interlocutory stage would not be advisable.

101. In the above decision, the action was brought by the plaintiff alleging passing off. It appears that the same was not an action for infringement of trademark under Section 29 of the Act. The Supreme Court in this decision overruled its earlier decision in S. M. Dyechem Ltd. v. Cadbury (India) Ltd. (2000) 5 SCC 573 in so far as it has been held in S.M.”Dyechem”(supra)””Where”common marks”are included in the rival trade marks, more regard is to be paid to the parts not common and the proper course is to look at the marks as whole, but at the same time not to disregard the parts which are common.” The Supreme Court held that “…………the decisions in the last four decades have clearly laid down that what has to be seen in the case of a passing off action is the similarity between the competing marks and to determine whether there is likelihood of deception or causing confusion…………Having come to the conclusion, in our opinion incorrectly, that the difference in essential features is relevant, this Court in Dyechem case (supra) sought to examine the difference in the two marks “PIKNIK” and “PICNIC” “.

102. The Supreme Court then proceeded to refer to American Court’s decisions relating to medicinal products. In paragraphs 35 and 36 the Supreme Court laid down the factors to be considered by the Court in an action for passing off on the basis of unregistered trademark. The said paragraphs reads as follows:

“35. Broadly stated in an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors to be considered:

a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks, i.e. both words and label works.

b) The degree of resemble ness between the marks, phonetically similar and hence similar in idea.

c) The nature of the goods in respect of which they are used as trade marks.

d) The similarity in the nature, character and performance of the goods of the rival traders.

e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.

f) The mode of purchasing the goods or placing orders for the goods and

g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.

36. Weightage to be given to each of the aforesaid factors depends upon facts of each case and the same weightage cannot be given to each factor in every case.”

103. As we have already noticed, the present is an action for infringement under Section 29 of the Act and not an action for passing off. In any event, on consideration of the various factors set out by the Supreme Court, as aforesaid, to us it is clear that keeping in view the nature of the marks-which are word marks; the lack of resemblance between the marks-phonetic or otherwise; the fact that the word fragment ‘TEMO’ is publici juris for the generic term TEMOZOLOMIDE, which is the active ingredient in the appellants drugs and the use of ‘TEMO’ is, therefore, descriptive; the fact that the appellants cannot appropriate to themselves the exclusive use of a generic term which is publici juris and descriptive; the fact that the drugs in question are Schedule-H drugs and that there are vast price differences, we are of the view that the injunction earlier granted in favour of the appellants in the two cases have rightly been vacated by the learned Single Judge.

104. Learned counsel for the appellants has also sought to urge that the trademarks of the appellants are valid, and the respondents have not challenged the registration of the appellants’ marks by seeking rectification.

105. The issue before us is not with regard to the validity of the appellants’ trademarks TEMODAL and TEMODAR. Merely because the said trademarks may be valid and legally registered and their registrations may not contravene Section 9 of the Act, it does not necessarily lead to the conclusion that the appellants would be entitled to claim proprietary over a word fragment of their marks, particularly when the said word fragment is publici juris for a generic compound TEMOZOLOMIDE, and is used descriptively for the active chemical compound in the appellants products and is descriptive in nature.

106. Mr. Datta submits that the appellants would fail in their action only if the appellants trademarks are a trivial modification of the word TEMOZOLOMIDE; the appellants’ trademarks are obtained by elision of a single syllable from the word TEMOZOLOMIDE; the appellants’ trademarks are substantially identical to the word TEMOZOLOMIDE; the appellants’ trademarks are legal equivalent of the word TEMOZOLOMIDE.

107. These may be some of the grounds for the appellants to fail in their action against the respondents, but these are not the only grounds why the Court would deny interim relief of injunction in cases like these. For the appellants to succeed, they must also establish that the respondents have no right to use the generic name/abbreviation of the compound ‘TEMOZOLOMIDE’ in their drugs, and that the appellants have an exclusive right in this regard. This, unfortunately for the appellants, they have failed to show. In our view, for the appellants to fail it is enough that the appellants’ trademark have been coined by combining the publici juris abbreviation TEM/TEMO for TEMOZOLOMIDE with the suffix ‘DAL’ in one case and ‘DAR’ in the other case, the marks of the appellants are descriptive, and the marks of the respondents do not bear phonetic or visual similarity which could be said to be deceptive or confusing for the purchasers of the drugs in question.

108. The registration of the appellants marks is in respect of TEMODAL and TEMODAR. By virtue of Section 17 of the Act, it is the said marks and not parts of the said marks, which stand protected. Consequently, TEM/TEMO cannot be claimed to enjoy protection by virtue of Section 17 of the Act. Section 17 of the Act confers on the proprietor the exclusive right to the use of the trademark as a whole.

It provides: “Notwithstanding anything contained in sub-section (1) when a trademark contains any matter which is common to the trade or is otherwise of a non-distinctive character, the registration thereof shall not confer any exclusive right in the matter forming only a part of the whole of the trademark so registered” (See Section 17 (2) (b)).

109. The packaging in which the products of the appellants, namely, ‘TEMODAL’ is marketed and the products of the respondents’ ALKEM and GETWELL are marketed, have been placed on record.
‘TEMODAL’ is marketed in 20 mg tablets, each bottle containing 5 tablets. On the other hand ‘TEMOKEM’ is marketed in an aluminum strip of five tablets and the potency of the tablets is 100 mg. There is absolutely no similarity in the getup of the packaging adopted by the appellants and the respondents. Similarly, ‘TEMOGET’ is sold in an aluminum strip of five capsules of either 20 mg or 250 mg. The colour of the capsules of the appellants is green for the 5 mg capsule, brown for the 20 mg capsule, blue for the 100 mg capsule and black for the 250 mg capsule. The product of the respondent GETWELL is sold in capsules of 20 mg of blue colour, 100 mg in while colour and 250 mg in green colour. Therefore, there is no similarity in the getup of either the packaging or the product itself.

110. In our view, the factors that the products of the respondent contain the warning “To be supplied against demand from cancer hospitals, institutions and against a prescription of a cancer patient only” and the huge price difference (about 600%) in the product of the appellants on the one hand, and the respondents on the other hand, are extremely germane considerations to rule out the possibility of any confusion or deception in the minds of the purchasers of the drugs in question.

111. The drugs of the respondents can be bought only against prescriptions from cancer hospitals, institutions and cancer specialists and not otherwise. The appellants have not produced any credible material to show actual confusion or that their product is, in any way, superior to that of the respondents which could be relied upon at this stage of the proceedings.

112. The aforesaid trademarks cannot be deciphered or considered separately i.e. by fragmenting them, but must be taken as a whole. But even if they are taken as a whole, the prefix TEMO used with suffix KEM and GET in the two competing names distinguish and differentiate the products of the appellants from those of the two respondents. When they are taken as a whole, the aforesaid two trademarks of the two respondents cannot be said to be either phonetically or visually or in any manner deceptively similar to the trademarks of the appellants i.e TEMODAL and TEMODAR.

113. The common feature in the competing marks i.e. TEMO is only descriptive and publici juris and, therefore, the customers would tend to ignore the common feature and would pay more attention to the uncommon feature. Even if they are expressed as a whole, the two do not have any phonetic similarity to make them objectionable.

114. Consequently, we find no infirmity with the findings arrived at by the learned Single Judge at this stage. The learned Single Judge was justified in not continuing the temporary injunction in favour of the appellants/plaintiffs. We, therefore, dismiss these appeals but with no orders as to costs. However, we direct the respondents Alkem and Getwell in the two appeals to maintain detailed accounts of the sales of their respective drugs ‘TEMOKEM’ and ‘TEMOGET’ and to regularly file half yearly statements in the suit, till the disposal of the suit. It goes without saying that any observation made by us on the merits of the cases of either party is only tentative, and the learned Single Judge shall decide all issues arising in the suit without being influenced one way or another by our said findings.

(VIPIN SANGHI) JUDGE

(MUKUL MUDGAL) JUDGE

DECEMBER 01, 2009
as/rsk/dp

The post Schering Corporation & Ors. Vs. Alkem Laboratories Ltd. appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1538 OF 2009
[ARISING OUT OF S.L.P. (CIVIL) NO. 25483 OF 2007]
M/S BOC INDIA LTD. … APPELLANT
Versus
STATE OF JHARKHAND & ORS. … RESPONDENTS
WITH
CIVIL APPEAL NO. 1540 OF 2009
[ARISING OUT OF S.L.P. (CIVIL) NO. 3045 OF 2008]
M/S TATA STEEL LTD. … APPELLANT
Versus
STATE OF JHARKHAND & ORS. … RESPONDENTS

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. These two appeals arising out of a judgment and order dated 2.11.2007 rendered by the High Court of Jharkhand at Ranchi in Writ Petition (T) No. 4693 of 2005 were taken up for hearing together and are being disposed of by this common judgment.

3. The factual matrix involved is not in dispute. M/s Tata Iron & Steel Company Limited (TISCO) produces steel. For the said purpose, it purchases oxygen gas from M/s B.O.C. India Ltd. (BOC), the producer and supplier, for industrial and medical use. BOC began supply of oxygen gas to TISCO from the year 1993. Indisputably, TISCO applied for and was granted a registration certificate in terms of the provisions of Section 13(1)(b) of the Bihar Finance Act, 1981 (hereinafter called and referred to as, “the Act”). The said certificate originally was granted on 16.3.1983. Indisputably, it was renewed from time to time; it covered the period in question, namely, 2001- 02, having been renewed till 31.5.2004. Indisputably, in terms of the provisions of the Act and the rules framed thereunder, a dealer is required to show the list of goods which were taxable at 1% as also the list of those goods which were taxable at 3%. Oxygen was shown in the list of goods taxable at 3% as specified in Annexure ‘B’ appended to the registration certificate.

4. We may at this stage notice the relevant statutory provisions, namely, Sections 13(1)(b), 14 (2) and 54 of the Act, which read as under:
(a) …
“13. Special rate of tax on certain sales or purchases.- (1) Notwithstanding anything contained in this part but subject to such conditions and restrictions as may be prescribed.

(b) Sales to or purchases by a registered dealer of goods required by him directly for use in the manufacture or processing of any goods for sale.

14. Registration of dealers. (1) … (2) Every dealer required by sub-section (1) to be in possession of a registration certificate shall apply for the same in the prescribed manner to the prescribed authority, and the said authority shall, on being satisfied that the application is in order, register the applicant and grant him a registration certificate within prescribed time in the prescribed manner and in the prescribed form specifying therein the goods or class or description of goods which the dealer sells or purchase and such other particulars as may be prescribed.

Provided that no application referred to in this sub-section shall be considered and be deemed valid, unless the applicant furnishes correctly all the prescribed particulars and, such other particulars as may be required by the prescribed authority in this behalf;

Provided further that where a dealer required by sub-section (1) to be in possession of a registration certificate applies for such a certificate within the prescribed time-limit and in the prescribed manner and the application is otherwise valid in accordance with the first proviso of this sub-section, he shall be deemed to be in possession of a valid registration certificate from the date he so applied for the purposes of exercising all the rights and performing all the duties and bearing all the liabilities under this part and the rules made thereunder:

Provided also that where a dealer carries on any business of sale or purchase of goods, in violation of the express and specific provisions of any law of the State or the Union, then notwithstanding anything to the contrary contained in this part and without prejudice to his liability to pay tax, the prescribed authority shall refuse to grant him a registration certificate.

54. Furnishing of information by dealers.-

If any dealer liable to pay tax under this part-

(a) disposes of his business or any part of his business, whether by sale or otherwise, or

(b) acquires any business or part of any business, whether by purchase or otherwise, or

(c) effects any other change in the ownership or constitution of the business, or

(d) discontinues his business or shifts his place of business, or

(e) changes the name, style or nature of his business or effects any change in the class or description of goods which he sells, or

(f) starts a new business or joins another business either singly or jointly with other persons, or

(g) effects any change in the particulars furnished in an application made under Section 14 or declaration furnished under Section 15,

He shall, within seven days of the occurring of any of the events aforesaid inform the prescribed authority accordingly, and, if any such dealer dies without doing so, his executor, administrator, successor-in-interest or legal representative, as the case may be, shall within fifteen days of the dealer’s death, inform the said authority accordingly.”

5. The State in exercise of its rule making power made rules known as Bihar Sales Tax Rules, 1983. Rules 3(9), 6(1)(b), 6(4) thereof read as under:
“3(9) (a) Every dealer to whom the provisions of section 54 apply shall inform, in writing, the appropriate authority prescribed in sub-rule (3) about the complete details necessitating action under Section 54.

(b) Where the information furnished by a dealer under section 54 or otherwise received by the authority prescribed under sub-rule (3) necessitates amendment of the registration certificate of the dealer the said authority shall, where the dealer has not submitted the certificate for amendment, direct him to produce the certificate and he shall comply with such direction. On receipt of the certificate the said authority shall, after such verification as may be necessary, amend the certificate suitably.

(c) Where the information furnished by a dealer under Section 54 or otherwise received by the authority prescribed in sub-rule (3) necessitates amendment in a declaration furnished under Section 15 the dealer shall furnish to the said authority a revised declaration until such revised declaration is furnished to the said authority the original declaration shall continue to be deemed valid and binding.

6. Certificate under section 13.- (1) An application for certificate under sub-section (1) of Section 13 shall be made–
(a) …..
(b) In Form III, where the certificate is required for making purchases covered by clause
(b) or (c) of the said sub-section, such application shall be made separately in respect of every place of business;
(2) ………..
(3) ………..
(4) (a) On receipt of an application in Form II or III if the appropriate authority prescribed in clause (a) or (b) of sub-rule (3), as the case may be, after verification of the particulars furnished by the applicant or after making or causing to be made such enquiry as it may deem necessary, is satisfied that the application is in order, it shall grant a certificate in Form VIA or VIB, as the case may be.

(b) On receipt of an application in Form IV, if the Joint Commissioner of the Division, after verification of the particulars furnished by the applicant, or after making or causing to be made such enquiry as he may deem necessary, is satisfied that the application is in order he shall, subject to the provisions of clause (a) of sub-rule (6), grant to the applicant a certificate in Form VIC. A copy of the certificate so granted shall also be sent forthwith to the Commercial Taxes Officer in-charge of the sub-circle, if the business is intended to be established within the local limits of a sub-circle, and to the Deputy Commissioner or Assistant Commissioner or Commercial Taxes officer in charge of the Circle in other cases.”

6. In terms of the said rules, application for grant of certificate is to be filed in Form III wherein inter alia particulars of the goods which the dealer may be permitted to purchase at special rate of tax in terms of clause (b) or (c) of sub-Section (1) of Section 13 of the Act are required to be shown. A registration certificate is granted in terms of Form VIB. Clause (3) whereof reads as under:

“(3) Particulars of the goods which the holder of the certificate is permitted to purchase at special rate of tax, under clause (b) or (c) of sub-section (1) of section 13. Description of goods. Particular purpose for which Required 1 2 ”

7. Indisputably, the State from time to time issued several notifications, one of such notification being dated 15.12.1976 in terms whereof tax at the rate of three per centum was prescribed in respect of the goods required directly for use in manufacture. However, by reason of S.O. No. 604 dated 12.4.1982, the rate of sales tax on Industrial raw materials (inputs) payable under Section 13(1)(b) of the Act was fixed at one per centum. By a Notification being S.O. 1096 dated 9.9.1983, it was provided:

“S.O. 1096 the 9th September, 1983- In exercise of the powers conferred by sub-section (1) of Section 13 of the Bihar Finance Act, 1981 Part 1 (Bihar Act No. 5, 1981) and in supersession of Finance (Commercial Taxes) Department notification No. S.O. 604, dated the 12th April, 1982, the Governor of Bihar is pleased to direct that the rate of sales tax payable under clause (b) of sub-section (1) of Section 13 of the said Act on the raw materials required directly for use in the manufacture or processing of goods for sale in the State or in course if inter-state trade or commerce, excluding such raw materials which have already undergone any manufacturing or production process and which are required for further assembly therewith shall be at the rate of two per centum.”

8. Yet again, by reason of S.O. 154 dated 3.2.1986 sales tax on sale of the raw materials required directly for use in the manufacture or processing of goods for sale excluding such raw materials which have already undergone any manufacturing or production process and which are required for further assembly therewith shall be at the rate of two per centum.

9. Concededly, TISCO never applied for amendment or modification of the Registration Certificate. Oxygen gas continued to be allowed to remain in Annexure ‘B’ of the Registration Certificate wherefor sales tax was payable at the rate of three per centum. Indisputably again, till the Assessment Year 2002-2003 for supply of oxygen gas to TISCO, BOC also used to charge sales tax at the rate of three per centum. However, the said purported mistake was sought to be rectified by BOC in terms of the said Notification dated 3.2.1986 charging two per centum sales tax on the supplies of oxygen gas made to TISCO. TISCO issued a declaration in terms of Form IX of the Rules. BOC also deposited tax at the rate of two per cent on the sale of industrial gases to TISCO.

10. The Deputy Commissioner of Commercial Tax issued a notice to BOC on or about 20.4.2005, stating:

“It is informed that you have deposited tax @ 2% on the sale of industrial gases to M/s TISCO Ltd. Because the Hon’ble Supreme Court has dismissed the SLP© No. 15419/2004, filed on your behalf, vide order dated 30.3.2005. Hence, you are directed to produce the evidence before the undersigned of deposit of the balance admitted tax of Rs.1,02,45,572/- by 20.5.2005, otherwise the proceedings for imposition of penalty will be initiated against you u/s 16(9) of Bihar Finance Act, 1981 as adopted by Jharkhand”

Another notice dated 29.6.2005 was also issued, stating:

“In spite of informing you by this office’s letter No. 188 dated 20.4.2005 the balance amount of Rs.1,02,45,572/- being admitted tax has not been deposited by you till date.
Again, you are directed to produce the evidence before the undersigned of deposit of the balance admitted tax of Rs.1,02,45,572/- by 15.7.2005, otherwise the proceedings for imposition of penalty will be initiated against you u/s 16 (9) of Bihar Finance Act, 1981 as adopted by Jharkhand.”

11. BOC in its letter dated dated 15.7.2005, addressed to the Deputy Commissioner, Commercial Taxes, Jamshedpur Circule, Jamshedpur, stated:

“After receiving the said letter/notice dated 29.06.05, we had taken up the matter with Tata Steel i.e. our purchaser who is the registered dealer for purchasing of the said Industrial Gases including Oxygen. It has been informed by Tata Steel that the Tata Steel is using those industrial gases including oxygen as their raw material for manufacturing of steel products and is covered under Notification S.O. No.1096 dated 09.09.83, hence the concessional rate of sales tax @ 2% is applicable. This has already been informed earlier by them vide their letter No. ACCTS/ST/990/115/05 dated 31.05.05 (copy enclosed) explaining the matter in this context. For paying the concessional rate of sales tax against supply/sale of Industrial Gases including Oxygen to Tata Steel, Tata Steel has submitted Form IX for availing the concessional rate of sales tax against supply of such industrial gases including oxygen, a copy of which is enclosed herewith. In view of the above, we request you to withdraw your letter No. 2137 dated 29.06.05 demanding differential rate of tax @ 1% totaling to Rs.1,02,45,572/- and drop the case accordingly.”

The demand was again raised on BOC by the Deputy Commissioner of Commercial Taxes, Jamshedpur Circle, Jamshedpur by its letter dated 22.7.2005 opining that TISCO was liable to pay concessional purchase tax at the rate of three per cent on Oxygen gas. BOC was, therefore, directed to produce the evidence of deposit of the balance differential amount of Rs.1,02,45,572/- by 18.8.2005 failing which other modes of recovery would be adopted.

12. Questioning the validity and/or legality of the said notice, a Writ Petition was filed before the High Court of Jharkhad at Ranchi, which by reason of the impugned judgment has been dismissed, holding that BOC has no locus standi to file writ petition as admittedly tax was payable by TISCO; being authorized to purchase at the concessional rate of three per cent and not at the rate of two per cent and, thus, the demand made by the respondent was unassailable, the selling dealer being bound by the certificate granted to it under Section 13(1)(b) of the Act. It was also held that whether oxygen gas is a raw material or not cannot be decided/determined in writ application filed by BOC as TISCO alone is competent to explain to the prescribed authority as to how, which had all along treated and mentioned as goods as per Annexure ‘B’, could be treated as raw material. In view of the order of this Court in the case of Tata Iron & Steel Co. Ltd. vs. State of Jharkhand & ors. [(2005) 4 SCC 272], the writ petition was also held to be not maintainable as TISCO cannot take a different stand to the effect that oxygen gas was used by it as a raw material.

It was furthermore held:

“As per the registration certificate issued under Section 13(1)(b) of the Act, Oxygen Gas was treated as goods as mentioned in Annexure – B. Endorsing the same, the purchasing dealer has been paying the tax at the concessional rate of 3% for a long number of years treating Oxygen Gas as goods. The selling dealer is bound by the said certificate. Accordingly, he has been collecting sales tax @ 3% from the beginning till 2000 and thereafter he started collecting sales tax @ 2% treating the same as raw material. Neither the purchasing dealer, nor the selling dealer can decide the nature of the goods on their own, unless the certificate is modified by the prescribed authority to that effect, treating Oxygen Gas as raw material, on being approached by purchasing dealer. The purchasing dealer has to pay sales tax @ 3% treating Oxygen Gas as goods mentioned in Annexure – B and the selling dealer has to merely collect and deposit the same as per the certificate with the Government. Unless it is established before the prescribed authority, which, in turn, will decide the nature of the goods, the purchasing dealer cannot claim payment of sales tax at the concessional rate of 2% treating Oxygen Gas as raw material under the garb of the two notifications dated 9.9.1983 and 3.2.1986. Therefore, demand notices are perfectly justified.”

13. Mr. S. Ganesh, learned Senior Counsel appearing on behalf of BOC and Mr. Shyam Divan, learned Senior Counsel appearing on behalf of TISCO would contend:

i. As oxygen gas is injected to the furnace through lance directly as would appear from diagram mentioned in Encyclopaedia Britannica, there cannot be any doubt whatsoever that it is used as a raw material for the purpose of manufacture of steel.

ii. Basic Oxygen Steelmaking (BOS) being a method of steelmaking in which carbon-rich molten iron is made into steel as by blowing oxygen through molten pig iron, the carbon content of the alloy is lowered and changes the material into low-carbon steel as would appear from the Wikipedia, the impugned judgment cannot be sustained.

iii. For the purpose of arriving at a finding as to whether a material used for a finished product would be a raw material or not, it is not necessary that the item should continue to remain a part of the finished product as even in a case where it has been burnt down in the chemical process required for manufacturing the end product, the same would continue to be a raw material.

iv. Section 13(1)(b) of the Act read with the notification providing only for the conditions that the assessee must sell raw material to a registered dealer; and it must be used for processing/manufacturing of goods meant for sale; BOC, being the assessee, is not concerned as to whether in the registration certificate issued to TISCO, oxygen gas has been shown in Annexure ‘A’ or Annexure ‘B’

v. BOC being an assessee having been made liable to pay tax had the requisite locus standi to maintain the writ application.

vi. Special Leave Petition filed by TISCO questioning the applicability of industrial policy, the decision of this Court in Tata Iron & Steel Co. Ltd. vs. State of Jharkhand & ors. [supra] cannot have any application in the instant case as payment of tax being governed by notification, the principles of res judicata and/or estoppel would not apply.

14. Mr. B.B. Singh, learned counsel appearing on behalf of the respondents, on the other hand, would contend:

i. The procedure for claiming special rate of tax on all materials and/or on raw materials having been provided for in the Act and/or Rules framed thereunder, the same were required to be complied with by the assessee for claiming the benefit thereof.

ii. TISCO which is a consumer of oxygen gas having never raised any contention that the rate of tax in respect of oxygen would be two per cent and not three per cent, BOC cannot be said to have any locus standi to plead the case of TISCO as ultimately the liability would be that of latter.

iii. The procedure laid down in the Act as also the rules framed thereunder being mandatory in nature, it was obligatory on the part of the TISCO to comply with requirements of the provisions thereof scrupulously.

iv. TISCO having not challenged the demand made by the authorities by way of a writ petition, the Special Leave Petition filed by it is not maintainable.

15. We may, at the outset, place on record that since Mr. B.B. Singh conceded that the decision of this Court in Tata Iron & Steel Co. Ltd. vs. State of Jharkhand & ors. [supra] has no application to the issues involved herein, we are not called upon to deal therewith.

16. BOC admittedly is the manufacturer of oxygen gas. It is a dealer within the meaning of the provisions of the Act being a supplier of its product. It, thus, comes within the purview of ‘dealer’ as contained in Section 2(e) of the Act as it carries on the business of buying, selling, supplying or distributing goods for cash or for deferred payment or for commission, remuneration or other valuable consideration. It is an assessee. It even as an agent of the State is bound to collect taxes on its behalf and deposit the same in accordance with law. Non-compliance thereof would lead to penal actions. Even in the demand made by the Deputy Commissioner, Commercial Taxes, Jamshedpur Circle, Jamshedpur dated 22.7.2005 it was threatened with proceedings for recovery of the differential amount unless it produced the evidence of deposit thereof.

17. Thus, a demand has been made on BOC. Hence, the opinion of the High Court that it did not have any locus standi to maintain the writ application cannot be accepted. It may be true that the consumer of oxygen gas is TISCO. It was also entitled to purchase the said goods at a concessional rate. If the material is used for manufacture, the rate of tax is three per cent whereas if the material is used as raw material for processing and/or manufacturing of the end product, indisputably, the rate of tax would be two per cent. Ultimately, BOC may be entitled to recover the differential amount of tax from TISCO, but, the same by itself would not mean that it is a busybody. Not only the penal proceedings but also other proceedings could be initiated against it for non-deposit of the aggregate amount of tax within the prescribed period. If an order of assessment is passed against the assessee, the only remedy before it is to prefer an appeal/revision in terms of the provisions of the Act. Thus, in our opinion, it was a person aggrieved to maintain a writ application.

18. In the matter of The Trade Mark No. 70,078 of Wright, Crossley, and Co. (1898) 15 RPC 131, it was stated: “I think, notwithstanding what was said in that case, and has been said in other cases dealing with Trade Marks , that an applicant in order to show that he is a person aggrieved, must show that in some possible way he may be damaged or injured if the Trade Mark is allowed to stand; and by `possible’ I mean possible in a practical sense, and not merely in a fantastic view. [See Kabushiki Kaisha Toshiba vs. TOSIBA Appliances Co. and Ors. [2008 (8) SCALE 354]

19. If it is to be held that the assessee is a person aggrieved to question the validity of the demand raised on it, it will have the locus standi to maintain a writ petition.

20. The expression “raw material” is not defined. It has to be given its meaning as is understood in the common parlance of those who deal with the matter. Oxygen gas when used would admittedly be burnt up. Would it mean that it ceases to be a raw material is the question?

In Collector of Central Excise, New Delhi vs. M/s Ballarpur Industries Ltd. [(1989) 4 SCC 566] on which reliance has been placed upon, Venkatachaliah, J. (as His Lordship then was) speaking for a bench was considering a case where the input of sodium sulphate in the manufacture of paper was held to continue to be a “raw material” by reason of the fact that in the course of the chemical reactions this ingredient is consumed and burnt up, holding:

“14. The ingredients, used in the chemical technology of manufacture of any end-product might comprise, amongst others, of those which may retain their dominant individual identity and character throughout the process and also in the end-product; those which, as a result of interaction with other chemicals or ingredients, might themselves undergo chemical or qualitative changes and in such altered form find themselves in the end-product; those which, like catalytic agents, while influencing and accelerating the chemical reactions, however, may themselves remain uninfluenced and unaltered and remain independent of and outside the end-products and those, as here, which might be burnt-up or consumed in the chemical reactions. The question in the present case i whether the ingredients of the last mentioned class qualify themselves as and are eligible to be called “Raw-Material” for the end- product. One of the valid tests, in our opinion, could be that the ingredient should be so essential for the chemical processes culminating in the emergence of the desired end-product, that having regard to its importance in and indispensability for the process, it could be said that its very consumption on burning-up is its quality and value as raw-materials. In such a case, the relevant test is not its absence in the end-product, but the dependence of the end-product for its essential presence at the delivery end of the process. The ingredient goes into the making of the end-product in the sense that without its absence the presence of the end-product, as such, is rendered impossible. This quality should coalesce with the requirement that its utilisation is in the manufacturing process as distinct from the manufacturing apparatus.”

21. Yet again, in the case of Tata Engineering & Locomotive Company Limited vs. State of Bihar & Anr. [(1994) 6 SCC 479], this Court while interpreting the provisions of Section 13(1)(b) of the Act itself, held that batteries, tyres and tubes which are by themselves finished products would be raw-material when they are fitted in a vehicle, stating:

“What requires consideration, therefore, is whether items such as tyres, tubes, batteries etc. purchased by the appellant for use in the manufacture of vehicles which are otherwise finished products could avail of concessional rate of tax at 1%. That would depend on the construction and understanding of the expression ‘industrial raw-material (inputs)’ used in the Notification. The word ‘raw-material’ has not been defined in the Act. It has, therefore, to be understood in the ordinary and well accepted connotation of it in the common parlance of the persons who deal with it. According to dictionary, it means ‘something which is used for manufacturing or producing the good’. The ordinary common sense understanding of it is that it is something from which another new or distinct commodity can be produced.”

22. Mr. B.B. Singh, however, rightly pointed out that the question as to whether the oxygen gas is a raw material or not had not been raised before the Assessing Authority. For the first time, before this Court, a question of fact has been raised. We cannot, for arriving at such a finding as to whether the same is correct or not, rely on Wikipedia alone, on which reliance has been placed. {See Commissioner of Customs, Bangalore vs. ACER India (P) Ltd. [(2008) 1 SCC 382] and Ponds India Limited vs. Commissioner of Trade Tax, Lucknow [(2008) 8 SCC 369]}

23. We do not know what are the manufacturing processes involved and what role oxygen gas has to play in the matter of manufacturing of steel. It is also not possible for us to base our decision solely on the basis of a diagram contained in Encyclopaedia Britannica. Whether oxygen gas can be considered to be a raw material is essentially a question of fact. Evidence is required to be adduced. Such evidence although may be in possession of TISCO. In the event, such a question is raised by the assessee, namely, BOC, the Assessing Authority must go therein. For the purpose of claiming exemption from payment of tax and/or special rate of tax applicable to a particular gas or commodity or goods, the assessee itself must bring on record sufficient materials to show that it comes within the purview of the notification. Both in M/s Ballarpur Industries Ltd (supra) and Tata Engineering & Locomotive Company Limited [supra], the question as to whether sodium sulphate and/or batteries, tyres, tubes were raw materials or not could be determined by this Court as such a question had been raised by the Assessing Authority.

24. We may, however, must place on record that we do not agree with Mr. B.B. Singh that the principle that as a procedure has been prescribed in the statute, the same must be followed or no benefit would be available to the assessee as is said to have been held by this Court in Narbada Prasad vs. Chhagan Lal & Ors. [(1969) 1 SCR 499] and in Kunwar Pal Singh (dead) by L.Rs. etc. etc. vs. State of U.P. & ors. [(2007) 5 SCC 85]. The said decisions cannot have any application in the facts of the present case.

In Narbada Prasad vs. Chhagan Lal & Ors [supra], this Court was dealing with a matter concerning Representation of the People Act in regard to filing of an election petition as in the election petition essential facts as specified therein was required to be pleaded in the manner laid down therein.

In Kunwar Pal Singh (dead) by L.Rs. etc. etc. vs. State of U.P. & ors. [(2007) 5 SCC 85], this Court was dealing with the provisions of the Land

Acquisition Act. Keeping in view the fact that the same was barred by limitation, this Court held:
“The principle is well settled that where any statutory provision provides a particular manner for doing a particular act, then, theat thing or act must be done in accordance with the manner prescribed therefor in the Act.”

25. For the self same reasons, we are of the opinion, that it is not necessary to go into the question as to whether a person even if he proves that he inadvertently did not claim the benefit of a notification would depend upon the facts and circumstances of each case as no such rule in absolute terms can be laid down therefor.

26. We may, however, notice that this Court in Share Medical Care vs. Union of India & ors. [(2007) 4 SCC 573] has opined as under:

“15. From the above decisions, it is clear that even if an applicant does not claim benefit under a particular notification at the initial stage, he is not debarred, prohibited or estopped from claiming such benefit at a later stage.”

27. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeals are allowed. The demand made on the appellant is also set aside. The question, as to whether the oxygen gas is a raw material for the manufacture of steel or not may be determined by the Assessing Authority on the basis of the material(s), which may be brought on record by the parties. All contentions raised by the parties on the said question shall remain open. The Assessing Authority is hereby directed to give an opportunity to the parties to adduce evidence in this behalf. All other consequential proceedings may follow on the basis of the determination on the said question.

In the facts and circumstances of the case, there shall be no order as to costs.

……………….…..………….J. [S.B. Sinha]
..………………..……………J. [Cyriac Joseph]

New Delhi;
MARCH 05, 2009

The post M/S Boc India Ltd vs State Of Jharkhand & Ors appeared first on B&B Associates LLP.

Crl. Rev. No.1262 of 2007
Date of Decision: 19.11.2009

Salauddin       …Petitioner
Vs.
State of Haryana    …Respondent
….
CORAM: HON’BLE MR.JUSTICE RAJIVE BHALLA
****
Present: Mr. R.S. Sihota, Sr. Advocate with Mr. B.R. Rana, Advocate for the petitioner. Mr. Ajay Chaudhary, DAG, Haryana for respondent no.1.
….

RAJIVE BHALLA, J

This order shall dispose of Criminal Revision Nos.1262 of 2007 and 1830 of 2007.

The complainant and the State of Haryana have filed separate revisions challenging the order dated 3.5.2007, passed by the Additional Sessions Judge, Fast Track Court, Gurgaon, dismissing an application for taking the blood sample of the accused. Surat alias Sujja, is an accused in FIR No.318 dated 12.9.2004, registered under Sections 302/102- B/216/201/148/149 IPC and Sections 25/54/59 of the Arms Act. After his arrest the police filed an application, before the J.M.I.C. Ferozepur Jhirka for being allowed to take his blood sample. On 7.12.2004, the Surat @ Sujja made a statement before the Judicial Magistrate Ist Class, Ferozepur Jhirka that he has no objection if his blood sample is taken. The Magistrate, therefore, directed the civil Surgeon, Gurgaon to take the blood sample of the accused. Surat @ Sujja, filed Criminal Revision No.34 of 2004/2006, challenging this order. Vide order dated 3.5.2007, the revision was dismissed. It appears that when the doctor visited the jail to take a blood sample but Surat @ Sujja refused to cooperate, thus compelling the doctor to return.

The petitioner/complainant filed an application praying that the prosecution should be directed to take the blood sample of the accused by using force as prescribed by Section 53 of the Code of Criminal Procedure (hereinafter referred to as `the Code’). The trial court dismissed the application by holding that a second application, for taking a blood sample is not maintainable and even otherwise an accused cannot be forced to furnish his blood sample.

Counsel for the petitioner submits, that Section 53 of the Code, allows the use of “reasonable force” for “examination” of the person of an accused. The accused agreed and, thereafter, refused to undergo a blood test. The trial court should have, therefore, directed the Civil Surgeon, Gurgaon to use “reasonable force”, for the purpose of drawing a blood sample for the purpose of D.N.A. profiling. It is further submitted that the courts below misconstrued the prayer in the application as in essence, the prayer is to carry out the order dated 7.12.2004 in accordance with the provisions of Section 53 of the Code.

Counsel for the accused, on the other hand, submits that though he does not dispute the facts but in view of Article 20(3) and Article 21 of the Constitution, the accused cannot be forced to give a blood sample. It is argued that though Section 53 of the Code includes the taking of a blood sample within the meaning of the word “examination”, the prosecution or a medical examiner cannot be allowed to use force. It is further submitted that as the respondent had already refused to furnish his blood sample, the second application for the same purpose is not maintainable.

I have heard learned counsel for the parties and perused the orders passed by the courts below. It is not disputed that respondent no.2 voluntarily agreed to provide a blood sample but later refused to cooperate. The question that falls for adjudication is whether the prosecution can be allowed to use force to take a blood sample of an accused.

The argument against the use of force for an invasive “examination” of the person of an accused flows from Article 20(3) and Article 21 of the Constitution. Article 20(3) mandates that no person accused of an offence shall be compelled to be a witness against himself. Article 21 protects the life and personal liberty of a person and its import extends to the protection of personal privacy, except in accordance with the procedure established by law. A long line of judicial precedents have consistently held that where the intrinsic character of the evidence does not undergo a change, an order calling upon an accused to submit to a physical examination of his person would not breach the protective wall of Article 20(3) of the Constitution, as it does not fall within the mischief of the expression “to be a witness”. Evidence like finger prints, hair and skin samples, blood and semen sample, to name a few, are unvariable constants and, therefore, the calling cards of the genetic make up of a person. An order requiring an accused to undergo an “examination” would not fall within the mischief of the expression “to be a witness”. Reference in this regard would necessarily have to be made to a judgment of the Supreme Court in State of Bombay V. Kathikalu, AIR 1961 S.C. 1808, while considering the nature of an order directing an accused to furnish his specimen handwriting or finger impression, it was held as follows :-

“16. In view of these considerations, we have come to the following conclusions:-

1. An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

2. The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not ‘compulsion’.

3. ‘To be a witness’ is not equivalent to ‘furnishing evidence’ in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.

4. Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showings parts of the body by way of identification are not included in the expression ‘to be a witness’.

5. ‘To be a witness’ means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.

6. ‘To be a witness’ in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.

7. To bring the statement in question within the prohibition of Art. 20 (3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.”

As the intrinsic character of finger prints, blood samples, hair samples etc. do change even though the taking of a sample may amount to furnishing evidence in the larger sense of the expression but would not fall within the expression “to be a witness”.

In another judgement reported as Gobind V. State of M.P., (1975)2 SCC 148, while considering the necessity of surveillance and the rights available under Article 21 of the Constitution, the Hon’ble Supreme Court observed as follows :-

“Depending on the character and antecedents of the person subjected to surveillance, as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction upon the right of privacy. Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest.

Other judgements that may be referred to are Kharak Singh Vs. State of U.P. AIR 1963 S.C. 1295 and Malak Singh V. State of P unjab and Haryana , 1981(1), SCC 420.

While considering Articles 20(3) and 21 of the Constitution in the context of H.I.V. (+) patient, the Hon’ble Supreme Court in Mr.X Vs. Hospital Z, 1998(8) SCC, 296 after considering these judgements held that the right under Article 20(3) is not absolute and is subject to such action, as may be lawfully taken for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others. In Goutam Kundu Vs. State of West Bengal, AIR 1993 S.C. 2295, while considering the question whether the collection of a blood sample of a party violates Article 20(3) of the Constitution, in the context of a dispute with respect to paternity the Hon’ble Supreme Court held as follows :-

“1. That courts in India cannot order blood test as a matter of course.

2. Wherever applications are made for such prayer in order to have roving inquiry, the prayer for blood test cannot be entertained.

3. There must be a strong prima facie case in that the husband must establish non access in order to dispel the presumption arising under Section 112 of the Evidence Act.

4. The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

5. No one can be compelled to give sample of blood for analysis.”

In Sharda Vs. Dharampal, AIR 2003 SC 3450, the Hon’ble Supreme Court after considering the judgement in Gautam Kundu (supra) held as follows :-

“Gautam Kundu (supra) is, therefore, not an authority for the proposition that under no circumstances the Court can direct that blood tests be conducted. It having regard to the future of the child, has, of course, sounded a note of caution as regard mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child.”

After observing as above, the Hon’ble Supreme Court proceeded to review the entire law on the subject, in the context of Article 20(3) and Article 21 of the Constitution and observed as follows :-

“78. At this stage we may observe that taking of a genetic sample without consent may in some countries e.g. Canada be viewed as a violation of the persons physical integrity although the law allows such forced taking of sample. But even this practice was held to be valid when the sample is collected by a health care professional. Collecting samples from the suspects for DNA tests in some countries have not been found to be violative of right of privacy.

80. The matter may be considered from another angle. In all such matrimonial cases where divorce is sought, say on the ground of impotency, schizophrenia….etc. normally without there being medical examination, it would be difficult to arrive at a conclusion as to whether the allegation made by his spouse against the other spouse seeking divorce on such a ground, is correct or not. In order to substantiate such allegation, the petitioner would always insist on medical examination. If respondent avoids such medical examination on the ground that it violates his/her right to privacy or for a matter right to personal liberty as enshrined under Article 21 of the Constitution of India, themn it may in most of such cases become impossible to arrive at a conclusion. It may render the very grounds on which divorce is permissible nugatory. Therefore, when there is no right to privacy specifically conferred by Article 21 of the Constitution of India and with the extensive interpretation of the phrase “personal liberty” this right has been read into Article 21, it cannot be treated as absolute right. What is emphasized is that some limitations on this right have to be imposed and particularly where two competing interests clash. In matters of aforesaid nature where the legislature has conferred a right upon his spouse to seek divorce on such grounds, it would be the right of that spouse which comes in conflict with the so-called right to privacy of the respondent. Thus the Court has to reconcile these competing interests by balancing the interests involved.

81. If for arriving at the satisfaction of the Court and to protect the right of a party to the lis who may otherwise be found to be incapable of protecting his own interest, the Court passes an appropriate order, the question of such action being violative of Article 21 of the Constitution of India would not arise. The Court having regard to Article 21 of the Constitution of India must also see to it that the right of a person to defend himself must be adequately protected.

82. It is, however, axiomatic that a Court shall not order a roving inquiry. It must have sufficient materials before it to enable it to exercise its discretion. Exercise of such discretion would be subjected to the supervisory jurisdiction of the High Court in terms of S. 115 of the Code of Civil Procedure and/or Article 227 of the Constitution of India. Abuse of the discretionary power at the hands of a Court is not expected. The Court must arrive at a finding that the applicant has established a strong prima facie case before passing such an order. 83. If despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out. S. 114 of the Indian Evidence Act also enables a Court to draw an adverse inference if the party does not produce the relevant evidences in his power and possession.”

The framers of the Constitution may have intended to protect an accused against self incrimination but could not have intended to place obstacles in the way of efficient and effective investigation into a crime for bringing a criminal to justice. Articles 20(3) and 21 of the Constitution of India would admit to exceptions, as may be established by law. Section 53 of the Code, is one such exception to the rule of law enunciated by Articles 20(3) and 21 of the Constitution, as it prescribes a procedure established by law to extract evidence from the person of an accused.

Section 53 of the Code, in its present form, was enacted by the 1973 Code but by way of Act No.25 of 2005, the original explanation to Section 53 was deleted and a new explanation was added. The explanation defines the word “examination” by including the examination of blood, blood stains, semen, sputum and sweat, hair samples and finger nail clipping by use of modern and scientific technique including DNA profiling etc.

Section 53 of the Code reads as follows :-

“53. Examination of accused by medical practitioner at the request of police officer – (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of subinspector and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.”

Explanation – In this section and in sections 53-A and 54 (a) “examination” shall include the examination of blood, blood-stains, semen, swabs in case of sexual offences, sputum and sweat,hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;

(b) “registered medical practitioner” means a medical practitioner who possesses any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register.”

Section 53 of the Code, postulates that where there is reason to believe that “examination” of the person of an accused may afford evidence as to the commission of an offence, such force as may be “reasonably necessary” can be used, by a registered medical practitioner, for such an examination, acting at the request of a police officer not below the rank of Sub Inspector.

The provisions of Section 53 of the Code have been enacted, to provide a window, in the protective wall of Article 20(3) and Article 21 of the Constitution, so as to allow an invasive examination of the person of an accused, subject to certain procedural and medical safeguards. The provisions of Section 53 neither fall within the mischief of the expression “to be a witness against himself” or violate the privacy of person guaranteed by Article 21 of the Constitution. A note of caution needs to be sounded for the courts and the police. The power under Section 53 of the Code shall not be exercised mechanically but shall be based upon relevant material, sufficient for a court or a police officer to form an opinion that the “examination” of the person of an accused is imperative in order to gather evidence as to the commission of an offence. A court would, therefore, be required to satisfy itself that the request made by the prosecution under Section 53 is based upon sufficient material and is not a mere roving enquiry intended to fish for evidence as by its very nature “force” is an anathema to freedom, self incrimination and personal privacy.

The expression “reasonable force” used in Section 53 of the Code has to be read in the context of the definition of the word “investigation” as used in Section 2(h) of the Code that reads as follows:-

“(h) “Investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.”

It is, therefore, beyond doubt that where investigation involves the collection of evidence that can be gathered from the “examination” of the person of an accused, a court would be entitled to issue a direction in terms of Section 53 of the Code i.e. direct the medical officer concerned to extract a blood sample by use of such reasonable force, as may be necessary in the circumstances of a case. It would be necessary to mention here that a D.N.A. examination is a significant tool in the armoury of the investigating agency, as Section 53 of the Code permits the use of reasonable force in collecting any evidence from the person of an accused. A direction, therefore, issued by a court directing an accused to furnish his blood sample and simultaneously directing the use of a reasonable force would not violate Article 20(3) or Article 21 of the Constitution of India.

In the present case, the accused agreed to undergo a blood test but subsequently refused to allow such a test. The respondent cannot be allowed to retract from his earlier consent. The learned trial court fell into an error while dismissing the application, as in essence, the prayer was for issuance of a direction to the respondent to furnish his blood sample in accordance with his consent and did not involve the passing of a fresh order.

In view of what has been stated herein above, the revision petition is allowed. The order dated 3.5.2007 is set aside. The learned trial court shall direct the Civil Surgeon, Gurgaon, to take a blood sample of the accused and for the said purpose use such force, as may be reasonably necessary.

19.11.2009
GS

(RAJIVE BHALLA)
JUDGE

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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 564 OF 2009
(Arising out of SLP (Crl.) No.9194 of 2008)
Gopal ..Appellant
Versus
State of M.P. ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of the Division Bench of the Madhya Pradesh High Court at Jabalpur, upholding the conviction and sentence of the appellant for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’) and sentence of imprisonment for life and fine of Rs.2,000/- with default stipulation. Appellant Gopal was arraigned in the charge sheet as A1.

3. Prosecution version as unfolded during trial is as follows: Saraswati Bai-deceased was a woman of questionable character. After being deserted by her husband Motilal, she developed illicit relationship with Amol Singh (A2) who ultimately kept her as mistress. At the relevant point of time, she was residing in Tapariya (hut) at village Bichhua.

On 17 th March, 1992 at about 8.00 p.m. hearing screams of Saraswati Bai, persons residing in the neighbourhood viz. Rajesh Gupta (PW6), Santosh Gudda (PW2), Mukundi Lal (PW4), Kaliram (PW5), Chhindami Lal (PW3), and Chandra Bhushan rushed towards her hut. In the transit, some of them had seen A1 running away. They found Saraswati Bai lying in a severely burnt condition in the courtyard of the hut. On being enquired, she revealed that both the accused persons had sprinkled kerosene over her body and set her ablaze. According to her, A2 was enraged by her act of taking land belonging to his adversary Raju Seth for cultivation as Bataidar (crop-sharer).

It was upon the report (Ex. P-1) lodged by Kotwar Prahlad Singh (PW1) and ASI Balram (PW8) registered a case under Section 307 read with Section 34 IPC against the appellant. He along with Prahlad proceeded to the spot and recorded Saraswati’s dying declaration (Ex.P-3) in the presence of Chhidami Lal (PW3), Kaliram (PW5), Babulal and Chandra Bhushan.

Saraswati Bai was immediately taken to the Government Hospital at Gadarwara. Observing that her condition was serious, Dr. B.P. Gupta (PW11) not only admitted her for treatment but also sent a memo (Ex.P-13) to the SHO requiring him to take necessary action to get dying declaration recorded. Naib Tahsildar and Executive Magistrate R.K. Dimole (PW9), after obtaining necessary certificate as to fit state of her mind, recorded Saraswati Bai’s dying declaration between 4.35 a.m. and 4.50 a.m. thereafter, at 9.10 a.m., Saraswati Bai breathed her last in the hospital. Accordingly, the case was altered to one under Section 302 IPC.

After inquest proceedings, dead body of Saraswati Bai was sent for post-mortem, Dr. D.S. Choudhary (PW7) found that body of Saraswati Bai, who was carrying more than 3 months pregnancy, had been burnt to the extent of 89%. According to him, the cause of Saraswati Bai’s death was shock due to extensive burns. However, he preserved the remaining pieces of burnt saree and blouse, earrings, nathni, Bangles and bunch of scalp hair for forensic examination.

During investigation, burnt pieces of saree and blouse, one kupiya (Container) of kerosene, a matchbox, one pair of shoes belonging to A2, a lathi and a broken mala (necklace) were seized from the spot; the appellants were apprehended and a burn injury was also found by Dr. R.K Patel (PW10) on the right forearm of A2.

4. Two accused persons faced trial for offence punishable under Section 302 IPC and in alternative under Section 302 read with Section 34 IPC, as they abjured the guilt. To prove the accusations prosecution examined 11 witnesses. On consideration of the evidence, the trial court found the accused persons guilty of death of the deceased in furtherance of their common intention. Accordingly, they were convicted and sentenced as afore-stated. Both of them preferred separate appeals before the High Court.

5. Before the High Court, the primary stand was to the acceptability of the dying declaration. The High Court rejected the plea and held that though there were more than one dying declarations, the extent of variance between the two was insignificant. It was noted that the dying declarations were consistent in substance as to the complexity of the accused persons causing burn injury to the person of the deceased and, therefore, there was no infirmity in the judgment of the trial court to warrant interference. Accordingly the appeals were dismissed.

6. In support of the appeal learned counsel for the appellant submitted that there was great variance in the so called dying declarations, which affected credibility of the evidence.

7. Learned counsel for the respondent-State on the other hand submitted that minor variance in the dying declarations have no relevance.

8. Law relating to appreciation of evidence in the form of more than one dying declaration is well settled. Accordingly, it is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration. The statement should be consistent throughout. If the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration they should be consistent. (See: Kundula Bala Subrahmanyam v. State of A.P. [(1993) 2 SCC 684]. However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scruitinizing the contents of various dying declaration, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.

9. It is to be noted that the High Court had itself observed that the dying declaration (Exh.P11) scribed by the Executive Officer, (PW9) at about 0435 hours in the same night was not in conformity with the FIR and the earlier dying declaration (Exh.P3) scribed by ASI Balram (PW 8) as different motives have been described. That is not the only variation. Several other discrepancies, even as regards the manner in which she is supposed to have been sprinkled with kerosene and thereafter set on fire.

10. Therefore, the discrepancies make the last declaration doubtful. The nature of the inconsistencies is such that they are certainly material. That being so, it would be unsafe to convict the appellant. The conviction is set aside and appellant is acquitted of the charges. He be set at liberty forthwith unless required to be in custody in connection with any other case.

11. The appeal is allowed.

…………….…………………….J.
(Dr. ARIJIT PASAYAT)
…………..………………………..J.
(ASOK KUMAR GANGULY)

New Delhi,
March 27, 2009

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Judgement Reportable
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO 3483 OF 2008
(Arising out of SLP [C] No.8648 of 2007)

Smt. Sarla Verma & Ors. … Appellants
Vs
Delhi Transport Corporation & Anr. … Respondents

ORDER

R.V.RAVEENDRAN, J.

The claimants in a motor accident claim have filed this appeal by special leave seeking increase in compensation.

2. One Rajinder Prakash died on account of injuries sustained in a motor accident which occurred on 18.4.1988 involving a bus bearing No.DLP 829 belonging to the Delhi Transport Corporation. At the time of the accident and untimely death, the deceased was aged 38 years, and was working as a Scientist in the Indian Council of Agricultural Research (ICAR) on a monthly salary of Rs.3402/- and other benefits. His widow, three minor children, parents and grandfather (who is no more) filed a claim for Rs.16 lakhs before the Motor Accidents Claims Tribunal, New Delhi. An officer of ICAR, examined as PW-4, gave evidence that the age of retirement in the service of ICAR was 60 years and the salary received by the deceased at the time of his death was Rs.4004/- per month.

3. The Tribunal by its judgment and award dated 6.8.1993 allowed the claim in part. The Tribunal calculated the compensation by taking the monthly salary of the deceased as Rs.3402. It deducted one-third towards the personal and living expenses of the deceased, and arrived at the contribution to the family as Rs.2250 per month (or Rs.27,000/- per annum).

In view of the evidence that the age of retirement was 60 years, it held that the period of service lost on account of the untimely death was 22 years.

Therefore it applied the multiplier of 22 and arrived at the loss of dependency to the family as Rs.5,94,000/-. It awarded the said amount with interest at the rate of 9% per annum from the date of petition till the date of realization. After deducting Rs.15000/- paid as interim compensation, it apportioned the balance compensation among the claimants, that is, Rs.3,00,000/- to the widow, Rs.75000/- to each of the two daughters, Rs.50000/- to the son, Rs.19000/- to the grandfather and Rs.30000/- to each of the parents.

4. Dissatisfied with the quantum of compensation, the appellants filed an appeal. The Delhi High Court by its judgment dated 15.2.2007 allowed the said appeal in part. The High Court was of the view that though in the claim petition the pay was mentioned as Rs.3,402 plus other benefits, the pay should be taken as Rs.4,004/- per month as per the evidence of PW-4.

Having regard to the fact that the deceased had 22 years of service left at the time of death and would have earned annual increments and pay revisions during that period, it held that the salary would have at least doubled (Rs.8008/- per month) by the time he retired. It therefore determined the income of the deceased as Rs.6006/- per month, being the average of Rs.4,004/- (salary which he was getting at the time of death) and Rs.8,008/- (salary which he would have received at the time of retirement). Having regard to the large number of members in the family, the High Court was of the view that only one fourth should be deducted towards personal and living expenses of the deceased, instead of the standard one-third deduction.

After such deduction, it arrived at the contribution to the family as Rs.4,504/- per month or Rs.54,048/- per annum. Having regard to the age of the deceased, the High Court chose the multiplier of 13. Thus it arrived at the loss of dependency as Rs.702,624/-. By adding Rs.15,000/- towards loss of consortium and Rs.2,000/- as funeral expenses, the total compensation was determined as Rs.7,19,624/-. Thus it disposed of the appeal by increasing the compensation by Rs.1,25,624/- with interest at the rate of 6% P.A. from the date of claim petition.

5. Not being satisfied with the said increase, the appellants have filed this appeal. They contend that the High Court erred in holding that there was no evidence in regard to future prospects; and that though there is no error in the method adopted for calculations, the High Court ought to have taken a higher amount as the income of the deceased. They submit that two applications were filed before the High Court on 2.6.2000 and 5.5.2005 bringing to the notice of the High Court that having regard to the pay revisions, the pay of the deceased would have been Rs.20,890/- per month as on 31.12.1999 and Rs.32,678/- as on 1.10.2005, had he been alive. To establish the revisions in pay scales and consequential re-fixation, the appellants produced letters of confirmation dated 7.12.1998 and 28.10.2005 issued by the employer (ICAR). Their grievance is that the High Court did not take note of those indisputable documents to calculate the income and the loss of dependency. They contend that the monthly income of the deceased should be taken as Rs.18341/- being the average of Rs.32,678/- (income shown as on 1.10.2005) and Rs.4,004/- (income at the time of death). They submit that only one-eighth should have been deducted towards personal and living expenses of the deceased. They point out that even if only one fourth (Rs.4585/-) was deducted therefrom towards personal and living expenses of the deceased, the contribution to the family would have been Rs.13,756/- per month or Rs.1,65,072/- per annum. They submit that having regard to the Second Schedule to the Motor Vehicles Act, 1988 (`Act’ for short), the appropriate multiplier for a person dying at the age of 38 years would be 16 and therefore the total loss of dependency would be Rs.26,41,152/-. They also contend that Rs.1,00,000/- should be added towards pain and suffering undergone by the claimants. They therefore submit that Rs.27,47,152/- should be determined as the compensation payable to them.

6. The contentions urged by the parties give rise to the following questions:

(i) Whether the future prospects can be taken into account for determining the income of the deceased ? If so, whether pay revisions that occurred during the pendency of the claim proceedings or appeals therefrom should be taken into account ?
(ii) Whether the deduction towards personal and living expenses of the deceased should be less than one-fourth (1/4th) as contended by the appellants, or should be one-third (1/3rd) as contended by the respondents ?
(iii) Whether the High Court erred in taking the multiplier as 13 ? (iv) What should be the compensation ? The general principles

7. Before considering the questions arising for decision, it would be appropriate to recall the relevant principles relating to assessment of compensation in cases of death. Earlier, there used to be considerable variation and inconsistency in the decisions of courts Tribunals on account of some adopting the Nance method enunciated in Nance v. British Columbia Electric Rly. Co. Ltd. [1951 AC 601] and some adopting the Davies method enunciated in Davies v. Powell Duffryn Associated Collieries Ltd., [1942 AC 601]. The difference between the two methods was considered and explained by this Court in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas [1994 (2) SCC 176]. After exhaustive consideration, this Court preferred the Davies method to Nance method. We extract below the principles laid down in Susamma Thomas:

“In fatal accident action, the measure of damage is the pecuniary loss suffered and is likely to be suffered by each dependant as a result of the death. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables, e.g., the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income altogether.”

“The matter of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalized by multiplying it by a figure representing the proper number of year’s purchase.”

“The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last.”

“It is necessary to reiterate that the multiplier method is logically sound and legally well-established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 year of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years – virtually adopting a multiplier of 45 – and even if one-third or one-fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible.”

In UP State Road Transport Corporation vs. Trilok Chandra [1996 (4) SCC 362], this Court, while reiterating the preference to Davies method followed in Susamma Thomas, stated thus :

“In the method adopted by Viscount Simon in the case of Nance also, first the annual dependency is worked out and then multiplied by the estimated useful life of the deceased. This is generally determined on the basis of longevity. But then, proper discounting on various factors having a bearing on the uncertainties of life, such as, premature death of the deceased or the dependent, remarriage, accelerated payment and increased earning by wise and prudent investments, etc., would become necessary. It was generally felt that discounting on various imponderables made assessment of compensation rather complicated and cumbersome and very often as a rough and ready measure, one-third to one-half of the dependency was reduced, depending on the life-span taken. That is the reason why courts in India as well as England preferred the Davies’ formula as being simple and more realistic. However, as observed earlier and as pointed out in Susamma Thomas’ case, usually English courts rarely exceed 16 as the multiplier. Courts in India too followed the same pattern till recently when Tribunals/Courts began to use a hybrid method of using Nance’s method without making deduction for imponderables……..Under the formula advocated by Lord Wright in Davies, the loss has to be ascertained by first determining the monthly income of the deceased, then deducting therefrom the amount spent on the deceased, and thus assessing the loss to the dependents of the deceased. The annual dependency assessed in this manner is then to be multiplied by the use of an appropriate multiplier.”

[emphasis supplied]

8. The lack of uniformity and consistency in awarding compensation has been a matter of grave concern. Every district has one or more Motor Accident Claims Tribunal/s. If different Tribunals calculate compensation differently on the same facts, the claimant, the litigant, the common man will be confused, perplexed and bewildered. If there is significant divergence among Tribunals in determining the quantum of compensation on similar facts, it will lead to dissatisfaction and distrust in the system. We may refer to the following observations in Trilok Chandra :

“We thought it necessary to reiterate the method of working out `just’ compensation because, of late, we have noticed from the awards made by Tribunals and Courts that the principle on which the multiplier method was developed has been lost sight of and once again a hybrid method based on the subjectivity of the Tribunal/Court has surfaced, introducing uncertainty and lack of reasonable uniformity in the matter of determination of compensation. It must be realized that the Tribunal/Court has to determine a fair amount of compensation awardable to the victim of an accident which must be proportionate to the injury caused.”

Compensation awarded does not become `just compensation’ merely because the Tribunal considers it to be just. For example, if on the same or similar facts (say deceased aged 40 years having annual income of 45,000/- leaving him surviving wife and child), one Tribunal awards Rs.10,00,000/- another awards Rs.5,00,000/-, and yet another awards Rs.1,00,000/-, all believing that the amount is just, it cannot be said that what is awarded in the first case and last case, is just compensation. Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective.

Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While it may not be possible to have mathematical precision or identical awards, in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation. In Susamma Thomas, this Court stated :

“So the proper method of computation is the multiplier method. Any departure, except in exceptional and extra-ordinary cases, would introduce inconsistency of principle, lack of uniformity and an element of unpredictability, for the assessment of compensation.”

9. Basically only three facts need to be established by the claimants for assessing compensation in the case of death : (a) age of the deceased; (b) income of the deceased; and the (c) the number of dependents. The issues to be determined by the Tribunal to arrive at the loss of dependency are (i) additions/deductions to be made for arriving at the income; (ii) the deduction to be made towards the personal living expenses of the deceased;

and (iii) the multiplier to be applied with reference of the age of the deceased. If these determinants are standardized, there will be uniformity and consistency in the decisions. There will lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay. To have uniformity and consistency, Tribunals should determine compensation in cases of death, by the following well settled steps:

Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.

Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.

Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the `loss of dependency’ to the family.

Thereafter, a conventional amount in the range of Rs. 5,000/- to Rs.10,000/- may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5,000/- to 10,000/- should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.

The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also added.

Question (i) – addition to income for future prospects

10. Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. The question is whether actual income at the time of death should be taken as the income or whether any addition should be made by taking note of future prospects. In Susamma Thomas, this Court held that the future prospects of advancement in life and career should also be sounded in terms of money to augment the multiplicand (annual contribution to the dependants); and that where the deceased had a stable job, the court can take note of the prospects of the future and it will be unreasonable to estimate the loss of dependency on the actual income of the deceased at the time of death. In that case, the salary of the deceased, aged 39 years at the time of death, was Rs.1032/- per month.

Having regard to the evidence in regard to future prospects, this Court was of the view that the higher estimate of monthly income could be made at Rs.2000/- as gross income before deducting the personal living expenses.

The decision in Susamma Thomas was followed in Sarla Dixit v. Balwant Yadav [1996] INSC 342; [1996 (3) SCC 179], where the deceased was getting a gross salary of Rs.1543/- per month. Having regard to the future prospects of promotions and increases, this Court assumed that by the time he retired, his earning would have nearly doubled, say Rs.3000/-. This court took the average of the actual income at the time of death and the projected income if he had lived a normal life period, and determined the monthly income as Rs.2200/- per month. In Abati Bezbaruah v. Dy. Director General, Geological Survey of India [2003 (3) SCC 148], as against the actual salary income of Rs.42,000/- per annum, (Rs.3500/- per month) at the time of accident, this court assumed the income as Rs.45,000/- per annum, having regard to the future prospects and career advancement of the deceased who was 40 years of age.

11. In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit, the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. [Where the annual income is in the taxable range, the words `actual salary’ should be read as `actual salary less tax’]. The addition should be only 30% if the age of the deceased was 40 to 50 years.

There should be no addition, where the age of deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances.

Re : Question (ii) – deduction for personal and living expenses

12. We have already noticed that the personal and living expenses of the deceased should be deducted from the income, to arrive at the contribution to the dependents. No evidence need be led to show the actual expenses of the deceased. In fact, any evidence in that behalf will be wholly unverifiable and likely to be unreliable. Claimants will obviously tend to claim that the deceased was very frugal and did not have any expensive habits and was spending virtually the entire income on the family. In some cases, it may be so. No claimant would admit that the deceased was a spendthrift, even if he was one. It is also very difficult for the respondents in a claim petition to produce evidence to show that the deceased was spending a considerable part of the income on himself or that he was contributing only a small part of the income on his family. Therefore, it became necessary to standardize the deductions to be made under the head of personal and living expenses of the deceased. This lead to the practice of deducting towards personal and living expenses of the deceased, one-third of the income if the deceased was a married, and one-half (50%) of the income if the deceased was a bachelor.

This practice was evolved out of experience, logic and convenience. In fact one-third deduction, got statutory recognition under Second Schedule to the Act, in respect of claims under Section 163A of the Motor Vehicles Act, 1988 (`MV Act’ for short).

13. But, such percentage of deduction is not an inflexible rule and offers merely a guideline. In Susamma Thomas, it was observed that in the absence of evidence, it is not unusual to deduct one-third of the gross income towards the personal living expenses of the deceased and treat the balance as the amount likely to have been spent on the members of the family/dependants. In UPSRTC v. Trilok Chandra [1996] INSC 666; [1996 (4) SCC 362], this Court held that if the number of dependents in the family of the deceased was large, in the absence of specific evidence in regard to contribution to the family, the Court may adopt the unit method for arriving at the contribution of the deceased to his family. By this method, two units is allotted to each adult and one unit is allotted to each minor, and total number of units are determined. Then the income is divided by the total number of units. The quotient is multiplied by two to arrive at the personal living expenses of the deceased. This Court gave the following illustration:

“X, male, aged about 35 years, dies in an accident. He leaves behind his widow and 3 minor children. His monthly income was Rs. 3500. First, deduct the amount spent on X every month. The rough and ready method hitherto adopted where no definite evidence was forthcoming, was to break up the family into units, taking two units for and adult and one unit for a minor. Thus X and his wire make 2+2=4 units and each minor one unit i.e. 3 units in all, totaling 7 units. Thus the share per unit works out to Rs. 3500/7=Rs. 500 per month. It can thus be assumed that Rs. 1000 was spent on X. Since he was a working member some provision for his transport and out-of-pocket expenses has to be estimated. In the present case we estimate the out-of-pocket expense at Rs. 250. Thus the amount spent on the deceased X works out to Rs. 1250 per month per month leaving a balance of Rs. 3500-1250=Rs.2250 per month. This amount can be taken as the monthly loss of X’s dependents.”

In Fakeerappa vs Karnataka Cement Pipe Factory – 2004 (2) SCC 473, while considering the appropriateness of 50% deduction towards personal and living expenses of the deceased made by the High Court, this Court observed:

“What would be the percentage of deduction for personal expenditure cannot be governed by any rigid rule or formula of universal application. It would depend upon circumstances of each case. The deceased undisputedly was a bachelor. Stand of the insurer is that after marriage, the contribution to the parents would have been lesser and, therefore, taking an overall view the Tribunal and the High Court were justified in fixing the deduction.”

In view of the special features of the case, this Court however restricted the deduction towards personal and living expenses to one-third of the income.

14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six.

15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically.

Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.

Re :Question (iii) – selection of multiplier

16. In Susamma Thomas, this Court stated the principle relating to multiplier thus:

“The multiplier represents the number of years’ purchase on which the loss of dependency is capitalized. Take for instance a case where annual loss of dependency is Rs.10,000. If a sum of Rs.1,00,000 is invested at 10% annual interest, the interest will take care of the dependency, perpetually, the multiplier in this case work out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalize the loss of the annual dependency at Rupees 10,000 would be 20. Then the multiplier, i.e.

the number of years’ purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowances for immediate lumpsum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc., Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependents, whichever is higher) goes up.”

17. The Motor Vehicle Act, 1988 was amended by Act 54 of 1994, inter alia inserting Section 163A and the Second Schedule with effect from 14.11.1994. Section 163A of the MV Act contains a special provision as to payment of compensation on structured formula basis, as indicated in the Second Schedule to the Act. The Second Schedule contains a Table prescribing the compensation to be awarded with reference to the age and income of the deceased. It specifies the amount of compensation to be awarded with reference to the annual income range of Rs.3,000/- to Rs.40,000/-. It does not specify the quantum of compensation in case the annual income of the deceased is more than Rs.40,000/-. But it provides the multiplier to be applied with reference to the age of the deceased. The table starts with a multiplier of 15, goes upto 18, and then steadily comes down to 5. It also provides the standard deduction as one-third on account of personal living expenses of the deceased. Therefore, where the application is under section 163A of the Act, it is possible to calculate the compensation on the structured formula basis, even where compensation is not specified with reference to the annual income of the deceased, or is more than Rs.40,000/-, by applying the formula : (2/3 x AI x M), that is two-thirds of the annual income multiplied by the multiplier applicable to the age of the deceased would be the compensation. Several principles of tortious liability are excluded when the claim is under section 163A of MV Act. There are however discrepancies/errors in the multiplier scale given in the Second Schedule Table. It prescribes a lesser compensation for cases where a higher multiplier of 18 is applicable and a larger compensation with reference to cases where a lesser multiplier of 15, 16, or 17 is applicable. From the quantum of compensation specified in the table, it is possible to infer that a clerical error has crept in the Schedule and the `multiplier’ figures got wrongly typed as 15, 16, 17, 18, 17, 16, 15, 13, 11, 8, 5 & 5 instead of 20, 19, 18, 17, 16, 15, 14, 12, 10, 8, 6 and 5. Another noticeable incongruity is, having prescribed the notional minimum income of non-earning persons as Rs.15,000/- per annum, the table prescribes the compensation payable even in cases where the annual income ranges between Rs.3000/- and Rs.12000/-.

This leads to an anomalous position in regard to applications under Section 163A of MV Act, as the compensation will be higher in cases where the deceased was idle and not having any income, than in cases where the deceased was honestly earning an income ranging between Rs.3000/- and Rs.12,000/- per annum. Be that as it may.

18. The principles relating to determination of liability and quantum of compensation are different for claims made under section 163A of MV Act and claims under section 166 of MV Act. (See : Oriental Insurance Co. Ltd.

vs. Meena Variyal – 2007 (5) SCC 428). Section 163A and Second Schedule in terms do not apply to determination of compensation in applications under Section 166. In Trilok Chandra, this Court, after reiterating the principles stated in Susamma Thomas, however, held that the operative (maximum) multiplier, should be increased as 18 (instead of 16 indicated in Susamma Thomas), even in cases under section 166 of MV Act, by borrowing the principle underlying section 163A and the Second Schedule. This Court observed:

“Section 163-A begins with a non obstante clause and provides for payment of compensation, as indicated in the Second Schedule, to the legal representatives of the deceased or injured, as the case may be. Now if we turn to the Second Schedule, we find a table fixing the mode of calculation of compensation for third party accident injury claims arising out of fatal accidents. The first column gives the age group of the victims of accident, the second column indicates the multiplier and the subsequent horizontal figures indicate the quantum of compensation in thousand payable to the heirs of the deceased victim.

According to this table the multiplier varies from 5 to 18 depending on the age group to which the victim belonged. Thus, under this Schedule the maximum multiplier can be up to 18 and not 16 as was held in Susamma Thomas case…..

Besides, the selection of multiplier cannot in all cases be solely dependent on the age of the deceased. For example, if the deceased, a bachelor, dies at the age of 45 and his dependents are his parents, age of the parents would also be relevant in the choice of the multiplier……What we propose to emphasise is that the multiplier cannot exceed 18 years’ purchase factor. This is the improvement over the earlier position that ordinarily it should not exceed 16…”

19. In New India Assurance Co. Ltd. vs. Charlie [2005 (10) SCC 720], this Court noticed that in respect of claims under section 166 of the MV Act, the highest multiplier applicable was 18 and that the said multiplier should be applied to the age group of 21 to 25 years (commencement of normal productive years) and the lowest multiplier would be in respect of persons in the age group of 60 to 70 years (normal retiring age). This was reiterated in TN State Road Transport Corporation Ltd. vs. Rajapriya [2005 (6) SCC 236] and UP State Road Transport Corporation vs. Krishna Bala [2006 (6) SCC 249]. The multipliers indicated in Susamma Thomas, Trilok Chandra and Charlie (for claims under section 166 of MV Act) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under section 163A of MV Act (with appropriate deceleration after 50 years) :

Age of the Multiplier Multiplier Multiplier Multiplier Multiplier actually deceased scale as scale as scale in Trilok specified in used in Second envisaged in adopted Chandra as second column in Schedule to MV Act Susamma by Trilok clarified in the Table in II (as seen from the Thomas Chandra Charlie Schedule to MV quantum of Act compensation) (1) (2) (3) (4) (5) (6) Upto 15 yrs – – 15 20 15 to 20 yrs. 16 18 18 16 19 21 to 25 yrs. 15 17 18 17 18 26 to 30 yrs. 14 16 17 18 17 31 to 35 yrs. 13 15 16 17 16 36 to 40 yrs. 12 14 15 16 15 41 to 45 yrs. 11 13 14 15 14 46 to 50 yrs. 10 12 13 13 12 51 to 55 yrs. 9 11 11 11 10 56 to 60 yrs. 8 10 09 8 8 61 to 65 yrs. 6 08 07 5 6 Above 65 5 05 05 5 5 yrs.

20. Tribunals/courts adopt and apply different operative multipliers.

Some follow the multiplier with reference to Susamma Thomas (set out in column 2 of the table above); some follow the multiplier with reference to Trilok Chandra, (set out in column 3 of the table above); some follow the multiplier with reference to Charlie (Set out in column (4) of the Table above); many follow the multiplier given in second column of the Table in the Second Schedule of MV Act (extracted in column 5 of the table above);

and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation (set out in column 6 of the table above). For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in column (2) of the Second schedule to the MV Act or 15 as per the multiplier actually adopted in the second Schedule to MV Act. Some Tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under section 166 and not under section 163A of MV Act. In cases falling under section 166 of the MV Act, Davies method is applicable.

21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.

Question (iv) – Computation of compensation

22. In this case as noticed above the salary of the deceased at the time of death was Rs.4,004. By applying the principles enunciated by this Court to the evidence, the High Court concluded that the salary would have at least doubled (Rs.8008/-) by the time of his retirement and consequently, determined the monthly income as an average of Rs.4004/- and Rs.8008/- that is Rs.6006/- per month or Rs.72072/- per annum. We find that the said conclusion is in conformity with the legal principle that about 50% can be added to the actual salary, by taking note of future prospects.

23. Learned counsel for the appellants contended that when actual figures as to what would be the income in future, are available it is not proper to take a nominal hypothetical increase of only 50% for calculating the income. He submitted that though the deceased was receiving Rs.4004/- per month at the time of death, as per the certificates issued by the employer (produced before High Court), on the basis of pay revisions and increases, his salary would have been Rs.32,678/- in the year 2005 and there is no reason why the said amount should not be considered as the income at the time of retirement. It was contended that the income which is to form the basis for calculation should not therefore be the average of Rs.4004/- and Rs.8008/-, but the average of Rs.4004/- and Rs.32,678/-.

24. The assumption of the appellants that the actual future pay revisions should be taken into account for the purpose of calculating the income is not sound. As against the contention of the appellants that if the deceased had been alive, he would have earned the benefit of revised pay scales, it is equally possible that if he had not died in the accident, he might have died on account of ill health or other accident, or lost the employment or met some other calamity or disadvantage. The imponderables in life are too many. Another significant aspect is the non-existence of such evidence at the time of accident. In this case, the accident and death occurred in the year 1988. The award was made by the Tribunal in the year 1993. The High Court decided the appeal in 2007. The pendency of the claim proceedings and appeal for nearly two decades is a fortuitous circumstance and that will not entitle the appellants to rely upon the two pay revisions which took place in the course of the said two decades. If the claim petition filed in 1988 had been disposed of in the year 1988-89 itself and if the appeal had been decided by the High Court in the year 1989-90, then obviously the compensation would have been decided only with reference to the scale of pay applicable at the time of death and not with reference to any future revision in pay scales. If the contention urged by the claimants is accepted, it would lead to the following situation: The claimants only could rely upon the pay scales in force at the time of the accident, if they are prompt in conducting the case. But if they delay the proceedings, they can rely upon the revised higher pay scales that may come into effect during such pendency. Surely, promptness cannot be punished in this manner. We therefore reject the contention that the revisions in pay scale subsequent to the death and before the final hearing should be taken note of for the purpose of determining the income for calculating the compensation.

25. The appellants next contended that having regard to the fact that the family of deceased consisted of 8 members including himself and as the entire family was dependent on him, the deduction on account of personal and living expenses of the deceased should be neither the standard one- third, nor one-fourth as assessed by the High Court, but one-eighth. We agree with the contention that the deduction on account of personal living expenses cannot be at a fixed one-third in all cases (unless the calculation is under section 163A read with Second Schedule to the MV Act). The percentage of deduction on account personal and living expenses can certainly vary with reference to the number of dependant members in the family. But as noticed earlier, the personal living expenses of the deceased need not exactly correspond to the number of dependants. As an earning member, the deceased would have spent more on himself than the other members of the family apart from the fact that he would have incurred expenditure on travelling/transportation and other needs. Therefore we are of the view that interest of justice would be met if one-fifth is deducted as the personal and living expenses of the deceased. After such deduction, the contribution to the family (dependants) is determined as Rs.57,658/- per annum. The multiplier will be 15 having regard to the age of the deceased at the time of death (38 years). Therefore the total loss of dependency would be Rs.57,658 x 15 = Rs.8,64,870/-.

26. In addition, the claimants will be entitled to a sum of Rs.5,000/- under the head of `loss of estate’ and Rs.5000/- towards funeral expenses. The widow will be entitled to Rs.10,000/- as loss of consortium. Thus, the total compensation will be Rs.8,84,870/-. After deducting Rs.7,19,624/- awarded by the High Court, the enhancement would be Rs.1,65,246/-.

27. We allow the appeal in part accordingly. The appellants will be entitled to the said sum of Rs.165,246/- in addition to what is already awarded, with interest at the rate of 6% per annum from the date of petition till the date of realization. The increase in compensation awarded by us shall be taken by the widow exclusively.

Parties to bear respective costs.

………..J.
(R V Raveendran)

………..J.
April 15, 2009 (Lokeshwar Singh Panta)

New Delhi;
April 15, 2009

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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1386 of 2009

[Arising out of Special Leave Petition (Crl.) No. 3276 of 2008]

State of Madhya Pradesh … Appellant(s)
Versus
Jiyalal … Respondent(s)

O R D E R

1. Leave granted.

2. Application for exemption from filing O.T. is allowed.

3. The State of Madhya Pradesh had filed a petition seeking special leave to appeal against a judgment given by a single judge at the Jabalpur Bench of the High Court of Madhya Pradesh (in Criminal Appeal No. 1539 of 1995). Prior to the impugned judgment of the High Court, a Special Judge at Balaghat, Madhya Pradesh had convicted the Respondent for offences under Section 7 and Section 13(1)(d)(ii) read with Section 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred to as `the Act’]. In pursuance of the findings of the Special Judge, the Respondent had been sentenced to undergo imprisonment for a period of one year and a fine of Rs. 200-/- had also been imposed on him. Aggrieved by this result, the Respondent had filed an appeal before the High Court.

4. The learned single judge of the High Court set aside the conviction and the sentence mainly on the ground that the requisite sanction order had not been obtained properly. Under the scheme of the Act, a sanction order from an appropriate authority is required before proceeding with a prosecution under the same Act. The rationale for requiring such a sanction order is to discourage frivolous prosecutions under the Act. In the present case, the learned single judge of the High Court had opined that the District Magistrate (the appropriate authority in this case) who had granted the sanction order in question had not applied his mind. It was held that since the sanction order did not enumerate reasons, it had been given mechanically and was hence illegal. It was further stated that the said sanction order (Exhibit – P/6 in the proceedings before the Special Judge) had not been proved because the District Magistrate who passed the order had not been subsequently examined as a witness by the prosecution in order to prove the same.

5. In our opinion, both of the above-mentioned findings of the learned single judge of the High Court are not correct. Therefore, the High Court was not justified in interfering with the `finding, sentence or order passed by a Special Judge’ under the Act. As per Section 19(3)(a) of the Act `no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned.’

6. The relevant portion of the Act reads as follows :- “Section 19. Previous sanction necessary for prosecution (1) No court shall take cognizance of an offence punishable under section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,- (a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the code of Criminal Procedure, 1973,- (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub- section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;

(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Explanation.-For the purposes of this section,- (a) error includes competency of the authority to grant sanction;

(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature.”

7. In the case before us, even if it were to be accepted that there has been an `error, omission or irregularity’ in the passing of the sanction order, the learned single judge of the High Court has not made a finding which shows that a serious failure of justice had been caused to the Respondent. In the absence of such a finding it was not correct for the High Court to set aside the conviction and sentence given by the Special Judge.

8. It was also not justified for the learned single judge to hold that the District Magistrate who had passed the sanction order should have been subsequently examined as a witness by the prosecution in order to prove the same. The sanction order was clearly passed in discharge of routine official functions and hence there is a presumption that the same was done in a bona fide manner. It was of course open to the Respondent to question the genuineness or validity of the sanction order before the Special Judge but there was no requirement for the District Magistrate to be examined as a witness by the prosecution.

9. It is apparent that the High Court has not considered the appeal on merits to decide whether a failure of justice had been occasioned in the present case. Therefore, we set aside the judgment of the learned single judge of the High Court and direct that the appeal filed by the Respondent before the High Court be considered on merits and disposed of accordingly.

10. The appeal is disposed of accordingly.

……………………………..CJI
(K.G. BALAKRISHNAN)

……………………………… J.
(P. SATHASIVAM)

New Delhi
July 31, 2009.

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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELALTE JURISDICTION
CRIMINAL APPEAL NO. 58 OF 2002

Prem Kanwar ….Appellant
Versus
State of Rajasthan ….Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned Single Judge of the Rajasthan High Court at Jodhpur allowing the appeal filed by the State of Rajasthan questioning correctness of the judgment of acquittal passed by a learned Sessions Judge, Sriganganagar. The appellant and two others faced trial for alleged commission of offence punishable under Sections 306 and 304 Part-B of the Indian Penal Code, 1860 (in short the `IPC’) and Section 4 of the Dowry Prohibition Act, 1961 (in short `Dowry Prohibition Act’).

2. Prosecution version unfolded during trial is as follows:- On 23-04-1988 at about 2.05 p.m., the accused Krishnalal lodged an oral report Ex.P/12 before Jagmalram (PW-11) SHO, Police Station Purani Abadi, Sri Ganganagar stating inter-alia that he was married with Smt. Raju, (hereinafter referred to as the deceased) in the year 1984 and his father had already died before 15 years back and since then he was living with his mother Prem Kanwar, the present appellant and uncle Puran Chand and he was not in service and thus was unemployed. On that day, he went out from his house for some work and when he returned back at about 1.30 p.m. he found crowd near his house and also found fire in his house and people were extinguishing the fire and he came to know that his wife, the deceased was burnt and had died and, therefore, he had come to inform the police.

On this report, police registered the FIR No. 7/88 and started investigation.

During investigation, postmortem of the dead body of the deceased was got conducted and the post mortem report is Ex. P/3, where the doctors opined that the cause of the death of the deceased was asphyxia due to ante- mortem burns.

When the investigation in FIR No. 7/88 was going on, PW 1 Bachna Ram, father of the deceased, lodged a written report Ex. P/1 on 26-4-1988 before police station Purani Abadi, Sri Ganganagar stating inter-alia that all the three accused have murdered his daughter (deceased) by burning her and he had also come to know that a report was also lodged on behalf of the accused stating therein that the deceased had committed suicide, but the fact was that all the three accused have killed her. It was further stated in the report that all the three accused used to harass and torture her as she was an illiterate lady and accused no 1 Krishnalal (husband of the deceased) was an educated person and accused used to say that in dowry nothing was given to them and thus, they used to torture, harass and humiliate her. It was further stated in the report that action be taken against the accused for killing her daughter (deceased) by burning.

On this report, police chalked out FIR Ex. P/2 for the offence u/Ss. 306, 304 B IPC and started investigation.

After usual investigation, police submitted challan against the accused respondents for the offence u/Ss. 306, 304 B IPC in the court of magistrate holding inter alia that it was a case of dowry death. Thereafter, the case was committed to the Court of Session.

As the accused persons denied the allegations trial was held. Eleven witnesses were examined to establish the accusations. Learned Sessions Judge directed acquittal inter-alia holding as follows:

1. That it is a case of suicide by the deceased.

2. That death of the deceased was caused due to burning and has taken place within seven years of the marriage.

3. That Bachnaram (PW.l) father of the deceased took the deceased to his house at the time of marriage of his son and kept the deceased in his house for 12 months and during that period nobody came from her-in-laws’ house to take her back.

4. That at the time of marriage of son of Rairam (PW-4), Bachnaram (PW-1) and PW.4 went to the house of her in-laws to take deceased where accused Prem Kanwar (mother-in-law of the deceased) expressed her displeasure and told that deceased be taken away by them and her clothes were thrown away.

5. That above facts were admitted by the learned Sessions Judge at pages 19 and 20 of his impugned judgment.

However, he observed that this statement of accused Prem Kanwar (mother-in-law of the deceased) is to some extent objectionable, but no case of dowry death or abetment of suicide is made from this part of her statement.

6. That prosecution has not been able to prove its case beyond all reasonable doubts against the accused respondents for the offence under Sections 306 and 304B IPC and Section 4 of the Dowry Prohibition Act.”

It is to be noted that the three accused persons were related to the deceased in the following manner:

Krishnalal is the husband of he deceased, Puran Chand is the Uncle- in-law and Prem Kanwar, the present appellant is the mother-in-law.

The High Court found that the conclusion of the trial Court that the case was one of suicide was not established. The High Court found that the possibility that before burning the deceased was murdered was clear from the evidence.

3. Learned counsel for the appellant submitted that considering the limited nature of the scope of interference in a matter of acquittal, the High Court ought not to have interfered, particularly, when it found that the acquittal was in order so far as the other co-accused persons are concerned.

It was submitted that the High Court’s conclusion that the skull bones were broken, which rules out the case of suicide, is contrary to medical evidence.

The High Court noted that to bring in application of Section 304 Part B, it is immaterial whether the death is suicidal or homicidal.

4. With reference to the evidence of Dhanni Devi (PW-5) it was submitted that her evidence was not sufficient to fasten the guilt on the appellant.

5. In response, learned counsel for the respondent-State supported the judgment of the High Court.

6. In order to attract Section 304B IPC, the following ingredients are to be satisfied.

i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances.

ii) Such death must have occurred within 7 years of the marriage.

iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband; and iv) Such cruelty or harassment must be in connection with the demand of dowry.

Sections 304B and Section 498A read as follows:

“304-B. Dowry Death- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her death.

Explanation – For the purpose of this sub-section `dowry’ shall have same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

“498-A: Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation – For the purpose of this section `cruelty’ means – (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

7. The term “dowry” has been defined in Section 2 of the Dowry Prohibition Act, 1961 (in short `Dowry Act’) as under:- “Section 2. Definition of `dowry’ – In this Act, `dowry’ means any property or valuable security given or agreed to be given either directly or indirectly – (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim personal law (Shariat) applies.

Explanation I- For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.

Explanation II- The expression `valuable security’ has the same meaning in Section 30 of the Indian Penal Code (45 of 1860).”

8. Explanation to Section 304-B refers to dowry “as having the same meaning as in Section 2 of the Act”, the question is : what is the periphery of the dowry as defined therein ? The argument is, there has to be an agreement at the time of the marriage in view of the words “agreed to be given” occurring therein, and in the absence of any such evidence it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage. This position was highlighted in Pawan Kumar and Ors. v. State of Haryana (1998 (3) SCC 309).

9. The offence alleged against the accused is under Section 304-B IPC which makes “demand of dowry” itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304-B refers to “demand of dowry”, it refers to the demand of property or valuable security as referred to in the definition of “dowry” under the Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences 9 can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word “agreement” referred to in Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the accused seek, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act.

“Dowry” definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or taking dowry and Section 4 which deals with a penalty for demanding dowry, under the Act and the IPC. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry.

10. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:- “113-B: Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation – For the purposes of this section `dowry death’ shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).”

11. The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10th August, 1988 on `Dowry Deaths and Law Reform’. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of `dowry death’ in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand of dowry”.

Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:

(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).

(2) The woman was subjected to cruelty or harassment by her husband or his relatives.

(3) Such cruelty or harassment was for, or in connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her death.

12. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `death occurring otherwise than in normal circumstances’. The expression `soon before’ is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates.

Evidence in that regard has to be led by prosecution. `Soon before’ is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression `soon before her death’ used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression `soon before’ is not defined. A reference to expression `soon before’ used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods `soon after’ the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term `soon before’ is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression `soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live- link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.

13. The Medical evidence is found in the statement of Dr. Rajendra Kuinar Gupta. (PW-6). He stated that for conducting the postmortem of the dead body of the deceased, a Medical Board was constituted on 25-04-1988 and apart from him, Dr. O.P. Sharma and Dr. Avinash Sardana were members of the Board. He further stated that dead body of the deceased was received on 23-04-1988 at about 8.00 p.m. and same was kept on ice and post mortem of the dead body of the deceased was conducted on 25-04- 1988 and on examination, following aspects were noticed:

1. That whole body was burnt.

2. That hairs of head of the deceased were totally burnt.

3. That outer portion of the skull had come out.

4. That there were nine bangles and one kada in the Left forearm of the deceased.

5. That bones of skull of the deceased were broken.

14. The doctors opined that cause of death of the deceased was Asphyxia due to ante mortem burns. He has proved the post mortem report Ex.P/3.

15. Thus, from the post mortem report Ex.P/3 and by the statement of Dr.

Rajendra Kumar Gupta (PW-6), the fact that deceased died because of burns is very well established and at the time of post mortem of the dead body of the deceased, her skull bones were found broken.

16. In the case of burning the fracture of skull is not a necessary corollary but in the present case the skull bones were broken. Therefore, the fact remains that she was killed before death. Therefore, the High Court was justified in holding that the Sessions Judge erroneously concluded that it was a case of suicide.

17. Jasvinder Singh (PW-7) is an independent witness who is neighbour of the accused. His evidence is of considerable importance. According to him, while he was standing at the place where the deceased was burning the 15 witness told Ramdev for extinguishing the fire upon which the appellant said that the deceased has been burnt and let her burn and it is no use extinguishing the fire. This statement has been rightly highlighted by the High Court to show that her role as alleged by the prosecution has been established.

18. The principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial Court have been set out in innumerable cases of this Court and in Ajit Savant Majagavi v. State of Karnataka (AIR 1997 SC 3255) the following principles have been re-iterated:

1. In an appeal against an order of acquittal, the High Court possesses all the powers and nothing less than the powers it possesses while hearing an appeal against an order of conviction.

2. The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse.

3. Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.

4. In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.

5. If the High Court on a fresh scrutiny and re-appraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.

6. The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanor of witnesses and observing their conduct in the Court especially in the witness box.

7. The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.

Rajasthan (JT 2000 (6) SC 254) may be seen.

Court has held as under :

“While caution is the watchword, in appeal against acquittal as the trial Judge has occasion to watch demeanour of witnesses interference should not be made merely because a different conclusion could have been arrived at. Prudence demands restraint on mere probability or possibility but in perversity or misreading interference is imperative otherwise existence of power shall be rendered meaningless. In the present case the order of the trial Court is vitiated as part from deciding the case on irrelevant consideration the most serious error of which he was guilty and which rendered the order infirm which could be set aside by the High Court was that he misread the evidence and indulged in conjectural inferences and surmises.

21. The evidence of PWs 1, 2, 3, 4 and 5 clearly shows the greed of the accused who was persistently taunting and harassing the deceased for not having brought sufficient dowry. Therefore, the High Court was justified in upsetting the order of acquittal passed by the trial Court and directing her conviction. We find no merit in this appeal which is accordingly dismissed.

………………………………….J.
(Dr. ARIJIT PASAYAT)

………………………………….J.
(Dr. MUKUNDAKAM SHARMA)

New Delhi,
January 7, 2009

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2888 OF 2001

Shyam Lal @ Kuldeep … Appellant
Versus
Sanjeev Kumar & Others … Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. This appeal is directed against the judgment dated 21.09.2000 of the High Court of Himachal Pradesh at Shimla in Regular Second Appeal No.10 of 1998 whereby the High Court allowed the appeal of the respondents and set aside the judgment and decree passed by the learned District Judge, Solan.

2. The appellant herein, who was the plaintiff before the Trial Court, filed a suit for declaration to the effect that mutation number 1313 dated 20.2.1988 in favour of defendant nos.1 and 2 was illegal, null and void. The plaintiff and defendant nos.3 and 4 are the sons and defendant nos.5 and 6 are the daughters of late Shri Balak Ram. They were joint owners and in possession of the estate of the deceased Balak Ram in equal shares. Balak Ram died on 31.10.1987.

After his death, his estate came to be mutated in favour of his grandsons, defendant nos.1 and 2, on the basis of a Will executed on 4.12.1978, vide mutation number 1313 dated 20.02.1988.

3. According to the plaintiff, the estate was inherited by the deceased Balak Ram from his father Mohar Singh and as such the same was ancestral in his hands. It is further alleged by the plaintiff that the deceased Balak Ram’s Hindu Undivided Family (HUF) consisted of himself, the plaintiff and the defendants. Late Balak Ram was governed by the Hindu Law and Customs in the matter of alienation and succession whereby he could not bequeath the ancestral property. It was further pleaded that no Will was executed by the deceased Balak Ram during his lifetime. The Will, if any, was forged and fabricated and ultimately the mutation of inheritance sanctioned on 20.2.1988 was illegal, null and void.

4. The respondents herein, who were defendants in the Trial Court, while resisting the suit admitted that the deceased Balak Ram had inherited the property from his father Mohar Singh. They, however, denied that such property was ancestral in the hands of the deceased. They also denied that the deceased was governed by the customs in the matter of alienation and succession. They pleaded that the deceased Balak Ram on 4.12.1978 was in a sound disposing mind when he had executed a valid Will in favour of defendant nos.1 and 2. The Will was registered on 23.12.1987 in the office of Sub-Registrar.

5. It was also submitted that Smt. Durgi, wife of deceased Balak Ram, had deserted her husband during her lifetime while he was in service at Chandigarh. She developed illicit relations with one Mehar Singh. The plaintiff and Phanki Ram, defendant no.4 were born to Smt. Durgi from the loins of the said Mehar Singh. The Trial Court framed the following issues:- “1. Whether the mutation no.1313 dated 20.2.88 is illegal, null and void and not operative against the plaintiff as alleged? OPP

2. Whether the plaintiff and defendant nos.3 and 6 are joint owners in possession of the suit land as alleged? OPP

3. Whether there is a validly executed will in favour of defendant nos.1 and 2 as alleged? OPD

4. Whether the plaintiff has no cause of action to file the present suit? OPD

5. Whether the suit is not maintainable as alleged? OPD

6. Whether the suit is not properly valued for purpose of court fee and jurisdiction.

OPD

7. Whether the plaintiff is estopped from filing the present suit as alleged.

OPD

8. Whether the suit is within time? OPD

9. Whether the suit is bad for want of better particulars, as alleged? OPD

10. Whether the alleged will in favour of defendants 1 and 2 is the result of fraud etc.

as alleged?”

OPP

6. The Trial Court decided issues nos.1, 2 and 10 against the plaintiff and issues no.3, 7 and 9 against the defendants.

Consequent upon such findings, the suit of the plaintiff was dismissed by the Trial Court on 27.8.1996.

7. The plaintiff, aggrieved by the said judgment filed an appeal before the learned District Judge, Solan who partly allowed the said appeal on 11.9.1997. The plaintiff and defendant no.4 were held to be the sons of deceased Balak Ram. The property in the hands of deceased Balak Ram was held to be ancestral to the extent of his share in the coparcenary property.

8. Defendant nos.1 to 3 and 6, aggrieved by the said judgment of the District Judge, Solan filed a second appeal before the High Court on the following substantial questions of law :

1. Whether the relationship, particularly regarding parentage, is required to be proved strictly in consonance with the provisions of Section 50 and 60 of the Indian Evidence Act? Can the evidence of persons who having no special means of knowledge of such relationship be held to be admissible and are not the findings of the lower appellate court unsustainable which are based on such inadmissible evidence?

2. When it was duly established that Smt. Durgi had illicit relationship with Mehar Singh in whose company she had begotten the plaintiff and defendant no.4, could the learned lower appellate court raise the presumption as envisaged under Section 112 of Indian Evidence Act relating parentage to Shri Balak Ram deceased from whom she severed all the relationship, merely on the ground that there was no legal divorce between Smt. Durga Devi and Shri Balak Ram?

3. Whether Ext. P-2 was inadmissible in evidence having not been proved in accordance with law and findings based on the same are illegal and unsustainable?

4. When the learned lower Appellate Court has held the custom to have been abrogated on account of the provisions of Sections 4 and 30 of the Hindu Succession Act, was not the will executed by Shri Balak Ram in favour of defendant nos.1 and 2 valid for the entire property when its due execution and validity has been upheld?

5. Whether the findings of the learned lower Appellate Court are incorrect to hold the property firstly to be Joint Hindu Family property, secondly ancestral property and thereby restricting the validity of the will executed by Shri Balak Ram qua his coparcenary interest in the property without holding that there existed a coparcenary amongst the parties to the suit and ascertaining the interest of Shri Balak Ram therein?

9. The High Court after hearing learned counsel for the parties answered questions nos.1 and 2 as follows:- “The learned District Judge in coming to the conclusion that the plaintiff and defendant No.4 are the sons of the deceased Balak Ram, has relied upon the presumption under Section 112, Evidence Act, 1872, which reads:- “112. Birth during marriage, conclusive proof of legitimacy. – The fact that any person who was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

The rule, contained in the above Section, that continuance of a valid marriage will prevent an inference being drawn to the effect that the children born to a woman during the continuance of the valid marriage were born to another person as a result of adulterous intercourse is only a rule of evidence. The presumption which Section 112, Evidence Act, 1872, contemplates, is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the Section, namely, non-access between the parties to the marriage at a time when according to the ordinary course of nature, the husband could have been the father of the child.”

10. Section 112 of the Indian Evidence Act is based on English law. Section 112 reproduces rule of English law that it is undesirable to inquire into paternity of child when mother is married woman and husband had access to her.

Adultery on her part will not justify finding of illegitimacy if husband has had access. [See: Nga Tun E v. Mi Chon A.I.R.

1914 Upper Burma 36].

11. More than a century ago in Bhima v. Dhulappa (1904) 7 Bombay Law Reports 95, the Court aptly observed that section 112 of the Evidence Act is based on the principle that when a particular relationship, such as marriage, is shown to exist, then its continuance must prima facie be preserved.

12. The fact that a woman is living in notorious adultery, though of course it amounts to very strong evidence, is not, in itself quite sufficient to repel this presumption [See: R v.Mansfield, 1941, 1 QB 444, 450].

13. In 1947 All LJ 569 at page 572 Hardan Singh v. Mukhtar Singh & Anr. , the Allahabad High Court observed:

“The mere fact that a woman is immoral or is living in a house separate from that of her husband is having relations with other men is not sufficient to rebut the conclusive presumption of legitimacy which is raised by section 112 of the Evidence Act, unless it is proved that the husband and wife had no access to each other during the period indicated in the section.”

14. In Lal Haribansha v. Nikunja Behari, ILR 1960 Cuttack 230, relying on Ma Wun Di and Another v. Ma Kin and Others XXXV IA 41, the Court stated that:

“It is the principle of law that “Odiosa et inkonesta non sunt in lege prae sumenda” (Nothing odious or dishonourable will be presumed by the law). So the law presumes against vice and immorality. One of the strongest illustrations of the principle, is the presumption in favour of legitimacy of children in a civilized society. But, where illegitimacy seems as common as marriage and legitimacy, a presumption of legitimacy cannot be drawn and legitimacy or illegitimacy will have to be proved like any other fact in issue.”

15. The High Court placed reliance on a judgment of this court in Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana AIR 1954 SC 1761 as under:- “It may be stated at the outset that the presumption which section 112 of the Indian Evidence Act contemplates is a conclusive presumption of law which can be displaced only by proof of the particular fact mentioned in the section, namely, non-access between the parties to the marriage at a time when according to the ordinary course of nature the husband could have been the father of the child. Access and non-access again connote, as has been held by the Privy Council (Vide Karapaya v. Mayandy, AIR 1934 PC 49(A), existence and non- existence of opportunities for material intercourse.

It is conceded by Mr. Somayya, who appeared on behalf of the plaintiff appellant, that non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is high favored by law it is necessary that proof of non-access must be clear and satisfactory…….”

16. Reliance has also been placed in Perumal Nadar (dead) by Legal Representative v. Ponnuswami Nadar (minor) AIR 1971 SC 2352 where the parties, i.e., the husband and wife were living separately long before the birth of the child. It was held that unless the husband is able to establish absence of access, presumption raised under section 112 of the Indian Evidence Act will not be displaced. The proof of non-access must be clear and satisfactory.

17. In Badri Prasad v. Deputy Director of ConsolidatioN & Others [1978] INSC 119; AIR 1978 SC 1557 : (1978) 3 SCC 537, it has been laid down that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. If man and woman who live as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence that they were validly married, few will succeed.

18. In Goutam Kundu v. State of W.B. & Another, AIR 1993 SC 2295, this Court summarized the law as under:

“(1) That courts in India cannot order blood test as a matter of course;

(2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.

(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) No one can be compelled to give sample of blood for analysis.”

19. In Raghunath Parmeshwar Panditrao Mali and Another v. Eknath Gajanan Kulkarni and Another, (1996) 7 SCC 681 it was observed that if a man and woman have lived together for long years as husband and wife and a son having been born to them, legal presumption would arise regarding valid marriage, though such a presumption is rebuttable similarly in S.P.S. Balasubramaniyam v. Suruttayan alias Andalipadayachi & Others, 1994 (1) SCC 460 it was observed by this court that if a man and woman live together for long years as husband and wife then a legal presumption arises as to the legality of marriage existing between the two, but such a presumption is rebuttable.

20. In Smt. Kanta Devi and Another v. Poshi Ram AIR 2001 SC 2226, this Court held as under:

“Section 112 which raises a conclusive presumption about the paternity of the child born during the subsistence of a valid marriage, itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness. The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted.”

21. In the impugned judgment, the High Court observed that in the present case admittedly the plaintiff and defendant no.4 were born to Smt. Durgi during the continuance of her marriage with the deceased Balak Ram. Therefore, in the absence of cogent and reliable evidence as to non-access on the part of the deceased Balak Ram, presumption under Section 112 of the Indian Evidence Act would be available and it will have to be held that plaintiff and defendants are sons of deceased Balak Ram.

22. On ground of public policy, it is undesirable to enquire into the paternity of a child whose parents “have access” to each other. The presumption of legitimacy arises from birth in wedlock and not from conception.

23. The High Court also observed that since the onus to rebut the presumption was on the defendants, it was for them to prove that the plaintiff and defendant no.4 are not the sons of the deceased. Sections 50 and 60 of the Indian Evidence Act cannot be pressed into service by the defendants to contend that the plaintiff has failed to prove his relationship with the deceased Balak Ram.

Question No.3

24. One of the documents relied upon by the learned District Judge in coming to the conclusion that the plaintiff is the son of the deceased Balak Ram is Ex.P.2, the School Leaving Certificate. The learned District Judge, while dealing with this documents has observed:

“on the other hand, there is a public document in the shape of school leaving certificate Ex.P.2 issued by Head Master, Government Primary School, Jabal Jamrot recording Kuldip Chand alias Sham Lal to be the son of Shri Balak Ram. In the said public document as such Kuldip Chand alias Sham Lal was recorded son of Shri Balak Ram.”

25. The findings of the learned District Judge holding Ex.P.2 to be a public document and admitting the same without formal proof cannot be questioned by the defendants in the present appeal since no objection was raised by them when such document was tendered and received in evidence. It has been held in Dasondha Singh and Others v. Zalam Singh and Others [1997(1) P.L.R. 735] that an objection as to the admissibility and mode of proof of a document must be taken at the trial before it is received in evidence and marked as an exhibit. Even otherwise such a document falls within the ambit of Section 74, Evidence Act, and is admissible per se without formal proof.

26. Even if such document is excluded from consideration, the defendants, as held under questions no.1 and 2 above, have not been able to rebut the presumption available under Section 112, Evidence Act.

Question No.5

27. The High Court, regarding question no.5, in the impugned judgment observed as under:- “The learned District Judge has held the property in the hands of the deceased Balak Ram to be coparcenary property.

Be it stated that such findings cannot be sustained. The plaintiff has nowhere pleaded that the property in the hands of his father the deceased Balak Ram was a coparcenary property. His pure and simple case, as set out in the plaint, is that the property in the hands of the deceased was ancestral and under the custom governing the parties such ancestral property could not be bequeathed by way of a will. By holding the property in the hands of the deceased Balak Ram to be coparcenary property, the learned District Judge has in fact made out a new case for the plaintiff. On this short ground alone, the findings of the learned District Judge deserve to be set aside.”

Question No.4 28. The two courts below have concurrently held the Will Ex.

DW 1/A to have been validly executed by the deceased Balak Ram in favour of defendant nos.1 and 2. Such concurrent findings being purely on a question of fact, that is, with regard to execution of the Will, cannot be interfered within the present Second Appeal.

29. There is no denying that the property in the hands of the deceased Balak Ram was ancestral since admittedly he had inherited the same form his father.

30. In so far as the question whether under the custom governing the parties, a Will could be executed in respect of ancestral property is concerned, the same is no more res integra. A learned Single Judge of this court in Kartari Devi and Ors. v. Tota Ram [1992 (1) Sim. L.C. 4021] has held that in view of section 30 read with section 4 of the Hindu Succession Act, 1956 a male Hindu governed by Mitakshara system is not debarred from making a Will in respect of coparcenary/ancestral property.

31. The above view of the learned Single Judge was upheld and approved by a Division Bench of this court in Tek Chand and Another v. Mool Raj and Others [1997 (2) Hindu L.R. 306].

32. In view of the above ratio, the learned District Judge has erred in upholding the validity of the Will Ex. DW 1/A only to the extent of the interest of the deceased in the property. Such findings are wrong and liable to be set aside.

33. There is yet another significant aspect of the case. The present suit was filed by the plaintiff for a declaration that the mutation of inheritance bearing No.1313 sanctioned on 20.2.1988 was wrong, illegal, null and void and not binding on his rights and that the land property in dispute was jointly owned and possessed by him and defendant nos.3 to 6 in  18 equal shares. Further that the Will dated 4.12.1978 was null and void and inoperative beyond the competency of the deceased and also being the result of fraud, misrepresentation etc. Such suit was filed on 21.5.1991.

34. Regarding question no.4 pertaining to the Will, the High Court has observed that the concurrent findings being purely on the question of fact, i.e. with regard to the execution of the Will cannot be interfered with in the Second Appeal. The High Court also observed that the property in the hands of the deceased Balak Ram was ancestral in character. The High Court also observed that a Will could not be executed as far as ancestral property was concerned and in view of the clear legal position this matter was no longer res integra.

Limitation (Issue No.8)

35. Regarding the limitation, the High Court observed as under:- “Undisputedly, the period of limitation prescribed under the law for such a suit is three years from the date the cause of action accrued to the plaintiff. It has been averred by the plaintiff in para 9 of his plaint, as to cause of action, as under:- “that the cause of action has arisen on 31.10.87 from death on 20.2.88 from mutation and on various other dates from the knowledge of the illegalities and wrongful actions of Village Jabal Jamrot Pargana Haripur Teh. and Distt. Solan within the jurisdiction of this Court, hence this matter has jurisdiction in the matter.”

36. The learned Trial Court, while recording the findings under issue no.8 has held the suit to be not within time. No findings have been recorded by the learned District Judge on the question of limitation. Considering the pleadings as a whole as set out in the plaint, the suit of the plaintiff as laid, on the face of it, was not within time. There were neither pleadings nor evidence as to the date on which the plaintiff had derived the knowledge about the mutation and/or the Will.

37. In the impugned judgment the High Court set aside the decree dated 11.9.1997 of the District Judge and that of the learned Trial Court dismissing the suit of the plaintiff restored. In the impugned judgment, the High Court also dealt with the question of limitation. The High Court observed that learned Trial Court while recording the findings under issue no.8 has held the suit to be not within time. No findings have been recorded by the learned District Judge on the question of limitation. Considering the pleadings as a whole as set out in the plaint, the suit of the plaintiff as laid, on the face of it, was not within time. There were neither pleadings nor evidence as to the date on which the plaintiff had derived the knowledge about the mutation and/or the Will.

38. Both the Trial Court and the District Court did not deal with this aspect of limitation in a proper perspective. The High Court, in our considered view has given correct findings regarding limitation. We have carefully and critically examined the findings of the High Court on the issues of Will and consequent mutation. The findings of the High Court are based on correct evaluation of evidence and record of the case.

39. The findings of the High Court on the interpretation of Section 112 of the Evidence Act are based on correct analysis of Indian and English cases for the last more than a century.

According to the legislative intention and spirit behind Section 112 of Evidence Act it is abundantly clear that once the 21 validity of marriage is proved then there is strong presumption about the legitimacy of children born out of that wedlock. The presumption can only be rebutted by a strong, clear satisfying and conclusive evidence. The presumption cannot be displaced by mere balance of probabilities or any circumstance creating doubt.

40. In the instant case, admittedly the plaintiff and defendant no.4 were born to Smt. Durgi during the continuance of her valid marriage with the deceased Balak Ram. Their marriage was infact never dissolved. There is no evidence on record that the deceased Balak Ram at any point of time did not have access to Smt. Durgi. According to the clear interpretation of section 112 of the Evidence Act, there is strong presumption about the legitimacy of children born out of continuation of the valid marriage.

41. It is well settled principle of law that Odiosa et inkonesta non sunt in lege prae sumenda (nothing odious or dishonourable will be presumed by the law). The law presumes against vice and immorality. In a civilized society it is imperative to presume legitimacy of a child born during continuation of a valid marriage and whose parents had “access” to each other.

42. It is undesirable to enquire into paternity of a child whose parents “have access” to each other. Section 112 of the Evidence Act is based on presumption of public morality and public policy.

43. It our considered view, no interference is called for.

This appeal being devoid of any merit is accordingly dismissed leaving the parties to bear their own costs.

…….……………………..J.
(Dalveer Bhandari)

…….……………………..J.
(H.L. Dattu)

New Delhi;
April 15, 2009

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IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (Crl.) NO. 193 OF 2006

Dalbir Singh …Petitioner
Vs.
State of U.P. and Ors. …Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Alleging that because of custodial torture and diabolic acts of the police officials of Noida Police, Somvir Singh @ Sonu aged 17 = years lost his life. He was studying in 9th standard. After dis-continuing his education he was helping his father, the petitioner, in his agricultural activities.

2. The petitioner had described the factual scenario to be thus:

The deceased was called by his friend one Kunwar Pal resident of Sikri PS Khurja and at relevant time residing at Telia ghat Khurja, PS Khurja, distt. Bulandshahar at about 6 p.m. on 1st of September, 2006. He told Sonu that five persons want to purchase some property. Since he wanted to show them the land, he requested Sonu to go along with him.

They took him in the car. Since Sonu did not return till 9 PM, the petitioner and his son who came from Faridabad started looking around for him and at about 3.45 AM the petitioner saw that the said Kunwar Pal came out from a lane. On enquiry about the whereabout of Sonu, the petitioner was informed that Sonu had been taken by the Police officials of Sector 20 Noida Police Station and he gave the telephone number of one Pradeep constable and asked the petitioner to contact him. The petitioner immediately contacted on the given number and the said constable told him that if he wanted to see Sonu, he had to come to Sector 31 Police Station at 10 AM. They were not given any further information. On trying to call up the number again to get further details, there was no response from the telephone or it was switched off. At about 9 A.M., the petitioner and his son reached Sector 31 Police Station to look for the said constable Pradeep and were informed that he was not on regular posting and that he used to visit the place occasionally.

The petitioner thereafter left Sector 20 and also called up the house and to the utter shock and surprise was informed that the police officers from PS Phurja Dehat had come and informed the family that Sonu had committed suicide in Sector 20 lock up. It is only then that the family realized that said five persons were policemen in plain clothes. On reaching Sector 20 the petitioner was informed that the dead body was lying in the mortuary and would be sent for post mortem. The petitioner and his son were taken to Sector 94 Noida where they saw the dead body of Sonu lying on a stretcher.

The body was covered with injuries, black marks and abrasions all over. It was clear that he had been badly beaten up. Blood was coming out from the head.

S.S.P. R.K.S. Rathore and Additonal SSP came to the petitioner’s house and tried to convince him and his family that since Sonu was involved in a case of looting, he had been arrested and he committed suicide while in police lock up by hanging himself with his shirt. The post mortem would have to be conducted. In the meantime, the news of Sonu’s killing having reached the village there was public out cry as there was one more death in the hands of Noida Police and the matter appeared in the local media mainly in vernacular. The petitioner lodged First Information Report (in short the `FIR’) with the police which threatened him and also tried to pressurize him into accepting the theory of suicide. But the untimely murder of the youngest child who was a law abiding citizen and had never been involved in any anti social or criminal activities had lost his life in the hands of the police and petitioner did not accept the statements, even at the cost of threat from the police.

To calm down the tempers of the villagers, an FIR was ultimately registered alongwith two other FIRs which have also been registered against the deceased son of the petitioner; one for alleged loot of some mobile phone, which has now been planted on the deceased and the other for attempt to suicide. The FIR dated 2.9.2006 was registered against the unknown police officers. All attempts by the petitioner to have an impartial post mortem of the body of the deceased was thwarted by the police who was insisting on the theory of the suicide by hanging with the help of shirt.

The external injuries all over the body of the deceased were not explained and in fact the post mortem report itself is not accurate as compared with the photographs. The petitioner and his other family members have given a statement setting out the facts.

Pursuant to notice issued in this case, the State of U.P. has filed its response. It is pointed out that the FIR has been registered and certain police officials had been charged for commission of offences punishable under Sections 330, 342 and 306 of the Indian Penal Code, 1860 (in short the `IPC’). It is stated that sanction for prosecution has been given on 15.10.2008 and the charge sheet had been filed on 14.11.2008. The accused persons surrendered before learned Chief Judicial Magistrate on 14.11.2008 and their bail applications had been rejected. Cognizance of the aforesaid offences has been taken on 17.11.2008.

4. Learned counsel for the petitioner submitted that it is a clear case of custodial torture and death and by giving a colour of Section 306 IPC, an attempt is being made to protect the erring police officials. It is also stated that the compensation should be paid.

5. Learned counsel for the respondent-State on the other hand submitted that the police after investigation has not found any evidence of murder and therefore the charge sheet had been filed. If at any stage it comes to the notice of the Court that other offences are involved, certainly necessary orders can be passed by the Court.

6. Custodial violence, torture and abuse of police power are not peculiar to this country, but it is widespread. It has been the concern of international community because the problem is universal and the challenge is almost global. The Universal Declaration of Human Rights in 1948 which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in Article 5 that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Despite this pious declaration, the crime continues unabated, though every civilized nation shows its concern and makes efforts for its eradication.

7. If it is assuming alarming proportions, now a days, all around it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from roof tops to be the defenders of democracy and protectors of peoples’ rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace loving puritans and saviours of citizens’ rights.

8. Article 21 which is one of the luminary provisions in the Constitution of India, 1950 (in short the `Constitution’) and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 (for short the `Code’) deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is therefore difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system. The community rightly gets disturbed. The cry for justice becomes louder and warrants immediate remedial measures. This Court has in a large number of cases expressed concern at the atrocities perpetuated by the protectors of law. Justice Brandies’s observation which have become classic are in following immortal words:

“Government as the omnipotent and omnipresent teacher teaches the whole people by its example, if the Government becomes a law breaker, it breeds contempt for law, it invites every man to become a law into himself”. (in [1928] USSC 133; (1928) 277 U.S. 438, quoted in (1961) 367 U.S. 643 at 659).

9. The diabolic recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new and unwarranted peril because guardians of law destroy the human rights by custodial violence and torture and invariably resulting in death. The vulnerability of human rights assumes a traumatic torture when functionaries of the State whose paramount duty is to protect the citizens and not to commit gruesome offences against them, in reality perpetrate them. The concern which was shown in Raghubir Singh’s case (supra) more than two decades back seems to have fallen to deaf ears and the situation does not seem to be showing any noticeable change. The anguish expressed in Gauri Shanker Sharma v. State of U.P. (AIR 1990 SC 709), Bhagwan Singh and Anr. v. State of Punjab [1992] INSC 148; (1992 (3) SCC 249), Smt. Nilabati Behera @Lalita Behera v. State of Orissa and Ors. (AIR 1993 SC 1960), Pratul Kumar Sinha v. State of Bihar and Anr. (1994 Supp. (3) SCC 100), Kewal Pati (Smt.) v. State of U.P. and Ors. (1995 (3) SCC 600), Inder Singh v.

State of Punjab and Ors. (1995(3) SCC 702), State of M.P. v. Shyamsunder Trivedi and Ors. (1995 (4) SCC 262) and by now celebrated decision in Shri D.K. Basu v. State of West Bengal (JT 1997 (1) SC 1) seems to have caused not even any softening attitude to the inhuman approach in dealing with persons in custody.

10. Rarely in cases of police torture or custodial death, there is any direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died.

Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues – and the present case is an apt illustration – as to how one after the other police witnesses feigned ignorance about the whole matter.

11. The exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt by the prosecution, at times even when the prosecuting agencies are themselves fixed in the dock, ignoring the ground realities, the fact-situation and the peculiar circumstances of a given case, as in the present case, often results in miscarriage of justice and makes the justice delivery system suspect and vulnerable. In the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by 9 this type of an unrealistic approach at times by the courts as well because it reinforces the belief in the mind of the police that no harm would come to them if one prisoner dies in the lock-up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognized by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/under- trial prisoners or suspects tarnishes the image of any civilised nation and encourages the men in `Khaki’ to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of heading, towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself, which, if it happens, will be a sad day, for any one to reckon with.

12. In view of the fact that sanction for prosecution has been granted, charge sheet had been filed and cognizance had been taken, we feel that no further direction at present is necessary. It is needless to say that if at any point of time, evidence surfaces before the concerned Court to show that some other offences appear to have been committed, necessary orders can be passed. We are not for the present accepting the prayer for compensation because that would depend upon the issue as to whether there was custodial death. The writ petition is accordingly disposed of. We make it clear that we have not expressed any opinion on the truth or otherwise of the allegations made and which will be considered by the concerned court.

………………………………J.
(Dr. ARIJIT PASAYAT)

……………………………..J.
(ASOK KUMAR GANGULY)

New Delhi,
February 3, 2009

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