IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 931-932 of 2009

Raj Kumar Singh @ Raju @ Batya …Appellant
Versus
State of Rajasthan …Respondent

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. These appeals have been preferred against the impugned judgment and order dated 4.1.2008, passed by the High Court of Rajasthan (Jaipur Bench) in D.B. Crl.A. Nos. 1250 and 1749 of 2003 by way of which, the High Court has dismissed the aforesaid appeals and affirmed the judgment and order dated 5.8.2003 of the learned Additional Sessions Judge (Fast Track) No. 1, Jaipur District in Sessions Case No. 19 of 2002 by way of which, the appellant stood convicted for the offences punishable under Sections 302, 376 and 201 of the Indian Penal Code, 1860, (hereinafter referred to as `the IPC’), and was awarded a sentence of life imprisonment alongwith a fine of Rs.1,000/- under Section 302 IPC; 10 years rigorous imprisonment alongwith a fine of Rs.1,000/- under Section 376 IPC, and rigorous imprisonment of 5 years alongwith a fine of Rs.500/- under Section 201 IPC, and in default of depositing such fine, to further suffer rigorous imprisonment for a period of six months. The substantive sentences, however, were ordered to run concurrently.

2. As per the case of the prosecution, the necessary facts related to the present case are as under:
A. Pooja, a 4 year old girl, went missing on 22.5.2001. Her family members searched for her relentlessly and also reported the matter to the police. She was eventually found lying dead on the roof of a lonely house on 24.5.2001. Rohtash (PW.1), father of the deceased, submitted a written report (Ex.P-1) of the incident at Police Station, Kotputli and upon the receipt of such report, a case under Sections 302 and 201 IPC was registered, and investigation pertaining to the same also commenced. Thereafter, postmortem was performed on the dead body, necessary memos were drawn, and statements of witnesses were recorded. The appellant was arrested on 27.5.2001 and upon completion of the investigation, chargesheet was filed.

B. The trial court concluded the trial and convicted the appellant under Sections 302, 376 and 201 IPC, vide impugned judgment and order dated 5.8.2003 and awarded the sentence as referred to hereinabove .

C. Aggrieved, the appellant filed an appeal in the High Court which was dismissed vide impugned judgment and order dated 4.1.2008.
Hence, these appeals.

3. Ms. Vibha Datta Makhija, learned Amicus Curiae, has submitted that the circumstances relied upon by the prosecution have not been satisfactorily established, and that additionally, the circumstances said to have been established against the appellant do not provide a complete chain that is required to prove the guilt of the appellant. There are material contradictions in the depositions of Rohtash (PW.1), Indira (PW.2), Kalawati (PW.3) and Naurang (PW.4), who are father, mother, grandmother and grandfather of the deceased, respectively. Their depositions have wrongly been relied upon by the courts below, as no reliance can be placed on their evidence. Moreover, the statements of the witnesses are self contradictory, and the standard of proof required to convict a person in a case of circumstantial evidence, has not been met either. The law requires, that the circumstances relied upon in support of the conviction must be fully established, and that the chain of evidence furnished by those circumstances must be so complete, so as not to leave any reasonable doubt for a conclusion, consistent with the innocence of the accused. The circumstances from which the conclusion of guilt is to be drawn, must not only be fully established, but also be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. They must not be capable of being explained by way of any other hypothesis except the guilt of the accused, and when all the said circumstances are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question. Thus, the appeals deserve to be allowed.

4. Per contra Ms. Pragati Neekhra, learned counsel appearing on behalf of the State, has opposed the appeals, contending that the judgments of the courts below do not warrant any interference. The circumstances relied upon by the courts below stand fully established, the chain of circumstances is complete, and every link in the said chain indicates that the appellant alone, could be the accused. The discrepancies in the evidence of the witnesses are so minor, that none of the same go to the root of the case and disturb such a conclusion as mentioned hereinabove. The medical evidence also fully supports the ocular evidence, and there is no contradiction between the two. The appellant had approached the family of the victim and asked them to pay to him, a sum of Rs.2,000/-, as he would bring Pooja back to them. The injuries found on the person of the deceased and the appellant-accused co-relate him to the evidence relating to the recoveries, clearly indicating that the appellant alone is guilty of the offence. Thus, the appeal is liable to be dismissed.

5. We have considered the rival submissions made by the learned counsel and perused the record.
There is no ocular version of the incident and the entire case of the prosecution is based on circumstantial evidence.

6. The courts below have found the following circumstances forming an incriminating chain against the appellant:

I. Conduct of the appellant.

II. False explanation given by the appellant.

III. Evidence relating to injuries on the person of the deceased.

IV. Evidence relating to injuries on the appellant.

7. The depositions with respect to the conduct of the appellant have been considered by the courts below, and 4 witnesses (family members of the deceased) have been examined in this respect. All 4 have deposed that the appellant had approached them and had asked them for the payment of a sum of Rs.2,000/-, to bring Pooja home, and this circumstance has thus been held to have been proved against him.

8. We have also been taken through the evidence of the witnesses on this aspect. Rohtash (PW.1), the father of the deceased, has deposed that they had reported the case to the police in the morning at around 8 O’ Clock as Pooja was found to be missing. The appellant had thereafter arrived at around 4 O’Clock in the evening, and had asked Rohtash (PW.1), to pay to him, a sum of Rs.2,000/-, stating that he would bring Pooja back. They had informed the police about this fact while lodging the FIR. In his cross examination, Rohtash (PW.1) admitted that the issue of the appellant asking for a sum of Rs.2,000/- had not been mentioned in the FIR. Then the witness himself voluntarily deposed, that the sum of Rs.2,000/- was asked for after the said report had already been written. He further deposed that he had never seen the appellant before he had asked him for the said amount of Rs.2,000/-. The witness also deposed that the police had not made any inquiry from him in this regard, and then made a statement to the contrary alleging that the police had questioned him vigorously. It may also be pertinent to mention that in his deposition, Rohtash (PW.1) was unable to mention the particular date on which the appellant had approached his family, and had asked for a sum of Rs.2,000/-.

9. Indira (PW.2), the mother of the deceased, Kalawati (PW.3), grandmother and Naurang (PW.4), grandfather of Pooja (deceased) had deposed that Rohtash (PW.1) had registered a report in the police station at 8 O’Clock about the fact that their daughter Pooja had gone missing and further deposed that, at about 4 O’Clock in the evening, on the same day, one boy had come to her and had asked her to pay to him a sum of Rs.2,000/-, as in return for the same he would bring back her daughter. Indira (PW.2) identified the appellant in court as the person who had asked to pay the said sum of Rs.2,000/-. All of them have further deposed that he had been caught by them and had been handed over to the police. In her cross-examination, she has admitted that the appellant had also been beaten up by them, and thereafter, had been handed over to the police on the same day.

If the evidence of the 4 witnesses on this very issue is carefully examined, it becomes evident that material contradictions exist therein, and that further, not only do such material contradictions exist, but embellishments and improvements have also been made to the version of events. In the event that the appellant had come to them and asked them for money, and they had caught hold of him and called the police, and the police had arrested him, there exists no rational explanation as regards why such a pertinent fact has been excluded from the FIR. Secondly, in case the witnesses i.e. the family members of the deceased had caught hold of the appellant, why has PW.4, grandfather of the deceased, deposed that the appellant was shown to them immediately after his arrest, if the witnesses had in fact caught hold of him, and had themselves handed him over to the police, the question of the police showing the appellant to them could not arise.

10. All recoveries were made on 24.5.2001, and the appellant was identified as the accused only on the ground that four witnesses i.e. PWs. 1 to 4, had deposed to the effect that he had asked them for a sum of Rs.2,000/- to bring back their child. No one has explained how the appellant was actually arrested. PWs.1 to 4 have made categorical statements to the effect that when the appellant had asked them for money to bring back the girl, they had caught hold of him and handed him over to the police on 24.5.2001 itself. However, Gopi Singh (PW.14), the Investigating Officer has made it clear that the appellant had been arrested on 27.5.2001 by Ext. P-14, and that there was no independent witness for the said arrest. An FIR was lodged on 24.5.2001 without naming any person, as the FIR itself reveals that some one had killed Pooja and had dumped her in the abandoned dharamshala.

Naurang (PW.4), grandfather of Pooja has deposed that the police had shown the accused to them as soon as he was arrested. Therefore, there exists a material contradiction as regards the issue of the arrest of the appellant.

We have examined the original documents/records. There is over-writing on the arrest memo and Gopi Singh (PW.14), the Investigating Officer has admitted in his cross-examination that there did in fact exist some over-writing underneath the signatures in Ext. D-1, and that the same, i.e., the over-writing, did not bear his initials.

11. So far as the recovery of the clothes of the accused which were recovered with blood and semen stains is concerned, there are numerous contradictions. Hari Singh (PW.9), the constable who made the said recoveries has deposed that on 27.5.2001, he had made the recovery of a light brown shirt, a white coloured vest on which there were blood like stains, one cream coloured underwear on which blood like stains and semen stains were found. The same were recovered from the appellant. Therefore, it is clear that the recoveries of the clothes of the appellant were made on 27.5.2001, and not on 24.5.2001. If the appellant had in fact been arrested as per the version of events narrated by PWs.1 to 4 on 24.5.2001, there would be no occasion for the police to make the recovery of his clothes on 27.5.2001. The statement of Rohtash (PW.1) was recorded on 27.5.2001, though the same was shown as recorded on 24.5.2001, and the statement of all other witnesses was recorded on 27.5.2001. It is thus, difficult to understand how such a material discrepancy in the evidence has been ignored by the courts below while convicting the appellant. Exts.P-23 to P-39 are the relevant photographs. They do not bear the signature of any person and therefore, it is difficult to comprehend how these material exhibits were sent for FSL report.

The High Court has doubted and in fact disbelieved the recovery of clothes at the instance of the appellant, and has remarked that the evidence of such recovery was fabricated and false.

12. The postmortem report (Ex.P-21) revealed the following anti- mortem injuries on her body:
“Body swollen, Abdomen distended, eyes protruded, lips swollen, no maggots over body, skin pealed off here and there, mouth semi opened, bleeding from both nostrils and Lt. ear, PM rigidly absent due to second stage of relaxer, PM lividity present over dependent parts of body, back of chest presents and both buttocks blush black, labia majora swollen and teared, hymen teared, vaginal walls teared. Rectum protruding through posterior vagina wall, posterior fornix ruptured.

In the opinion of Medical Board the cause of death was neurogenic shock, coma due to head injury.”

13. As already described, the dead body of Pooja was subjected to an autopsy by the Medical Board. Dr. Laxman Singh (PW.12) deposed that the body was swollen, abdomen distended, eyes protruding, lips swollen, no maggots over body, skin pealed off here and there, mouth semi opened, bleeding from both nostrils and left ear. PM rigidly absent due to second stage of relaxation, PM lividity present over dependent parts of body, back of chest present and both buttocks bluish black. Labia majora swollen and hymen torn. Vaginal walls torn. Rectum protruding through posterior vaginal wall, posterior fornix ruptured. The cause of death was neurogenic shock, coma due to head injury. The testimony of Dr. Laxman Singh clearly reveals that the innocent helpless soul Pooja was first subjected to monstrous sexual assault, and was then mercilessly killed by inflicting injuries on her head so that there remains no direct evidence against culprit.

14. The appellant after his arrest on 27.5.2001 was medically examined by Dr. Laxman Singh (PW.12) on May 28, 2001 and vide his medical examination report (Ext. P-22), an abrasion of the size of 0.2 x 0.2 cm on the corona penis was found. The body of the penis and glands therein were swollen and tenderness and inflammation was present. There was nothing to suggest that the appellant was incapable of indulging in intercourse.

15. The evidence of Daulat Ram (PW.7), the driver had been to the extent that on 22.5.2001, the appellant had travelled with him to certain places and had slept in his jeep that night and did not go to his house, and the appellant could not furnish any explanation as to why he had slept in the jeep and did not go to his house. Therefore, his conduct was suggestive of the fact that the offence had been committed by him.

The trial court also doubted the conduct of the appellant for the reason that he had slept in the jeep though he was neither the driver of a jeep nor the servant of Daulat Ram (PW.7), the driver. The High Court had taken note of the appellant’s statement under Section 313 of Code of Criminal Procedure, 1973, (hereinafter referred to as `Cr.P.C.’), wherein the appellant had replied that the aforesaid deposition was wrong, and held that explanation furnished by him was false.

16. The courts below have proceeded on the basis that there was no evidence of enmity against any of the witnesses which may lead to the presumption that the appellant has been falsely implicated in the case.

17. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be’ proved and `will be proved’. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between `may be’ and `must be’ is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be’ true and `must be’ true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be’ true and `must be’ true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade & Anr. v. State of Mahrashtra, AIR 1973 SC 2622; Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622; Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702; Ashish Batham v. State of M.P., AIR 2002 SC 3206; Narendra Singh & Anr. v. State of M.P., AIR 2004 SC 3249; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979)

18. In Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773, this Court observed as under:
“Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence.”

19. In R. v. Hodge 168 ER 1163, the court held that before a person is convicted entirely on circumstantial evidence, the court must be satisfied not only that those circumstances were consistent with his having committed the act, but also that the facts were such, so as to be inconsistent with any other rational conclusion other than the one that the accused is the guilty person.

20. In Sharad Birdhichand Sarda (Supra), this Court held as under:
“The facts so established should be consistent only with the hypothesis of the guilt of the accused. There should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

A similar view has been reiterated in Krishnan v. State Represented by Inspector of Police, (2008) 15 SCC 430; Pawan v. State of Uttaranchal, etc. etc. (2009) 15 SCC 259; and State of Maharashtra v. Mangilal, (2009) 15 SCC 418.

21. In M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200, this Court held, that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with his guilt.
Similarly, in Sharad Birdhichand Sarda (Supra), this Court held as under:

“Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence.

22. In an Essay on the Principles of Circumstantial Evidence by William Wills by T. & J.W. Johnson & Co. 1872, it has been explained as under:
“In matters of direct testimony, if credence be given to the relators, the act of hearing and the act of belief, though really not so, seem to be contemporaneous. But the case is very different when we have to determine upon circumstantial evidence, the judgment in respect of which is essentially inferential. There is no apparent necessary connection between the facts and the inference; the facts may be true, and the inference erroneous, and it is only by comparison with the results of observation in similar or analogous circumstances, that we acquire confidence in the accuracy of our conclusions.

The term PRESUMPTIVE is frequently used as synonymous with CIRCUMSTANTIAL EVIDENCE; but it is not so used with strict accuracy, The word” presumption,” ex vi termini, imports an inference from facts; and the adjunct “presumptive,” as applied to evidentiary facts, implies the certainty of some relation between the facts and the inference. Circumstances generally, but not necessarily, lead to particular inferences; for the facts may be indisputable, and yet their relation to the principal fact may be only apparent, and not real; and even when the connection is real, the deduction may be erroneous. Circumstantial and presumptive evidence differ, therefore, as genus and species.

The force and effect of circumstantial evidence depend upon its incompatibility with, and incapability of, explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove; the mode of argument resembling the method of demonstration by the reductio ad absurdum.”

23. Thus, in view of the above, the Court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.

24. This Court in Babu v. State of Kerala, (2010) 9 SCC 189 has dealt with the doctrine of innocence elaborately and held as under:
“27. Every accused is presumed to be innocent unless the guilt is proved. The presumption of innocence is a human right. However, subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence. For this purpose, the nature of the offence, its seriousness and gravity thereof has to be taken into consideration. The courts must be on guard to see that merely on the application of the presumption, the same may not lead to any injustice or mistaken conviction. Statutes like the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1988; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact.

28. However, in cases where the statute does not provide for the burden of proof on the accused, it always lies on the prosecution. It is only in exceptional circumstances, such as those of statutes as referred to hereinabove, that the burden of proof is on the accused. The statutory provision even for a presumption of guilt of the accused under a particular statute must meet the tests of reasonableness and liberty enshrined in Articles 14 and 21 of the Constitution.”

25. In a criminal trial, the purpose of examining the accused person under Section 313 Cr.P.C., is to meet the requirement of the principles of natural justice i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 Cr.P.C., cannot be used against him and have to be excluded from consideration.

26. In State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100, this Court observed as under:
“…if there is no evidence or circumstance appearing in the prosecution evidence implicating the accused with the commission of the crime with which he is charged, there is nothing for the accused to explain and hence his examination under Section 313 of the Code would be wholly unnecessary and improper. In such a situation the accused cannot be questioned and his answers cannot be used to supply the gaps left by witnesses in their evidence.”

27. In Mohan Singh v. Prem Singh & Anr., AIR 2002 SC 3582, this Court held:
“The statement of the accused under Section 313 CrPC is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. If the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 CrPC cannot be made the sole basis of his conviction.”

28. In Dehal Singh v. State of H.P., AIR 2010 SC 3594, this Court observed:
“Statement under Section 313 of the Code of Criminal Procedure is taken into consideration to appreciate the truthfulness or otherwise of the case of the prosecution and it is not an evidence. Statement of an accused under Section 313 of the Code of Criminal Procedure is recorded without administering oath and, therefore, the said statement cannot be treated as evidence within the meaning of Section 3 of the Evidence Act. The appellants have not chosen to examine any other witness to support this plea and in case none was available they were free to examine themselves in terms of Section 315 of the Code of Criminal Procedure which, inter- alia, provides that a person accused of an offence is a competent witness of the defence and may give evidence on oath in disproof of the charges. There is reason not to treat the statement under Section 313 of the Code of Criminal Procedure as evidence as the accused cannot be cross- examined with reference to those statements. However, when an accused appears as a witness in defence to disprove the charge, his version can be tested by his cross-examination.”

29. In State of M.P. v. Ramesh, (2011) 4 SCC 786, this Court held as under:
“The statement of the accused made under Section 313 CrPC can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross- examined. his statement so recorded under Section 313 CrPC cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act. 1872. Section 315 CrPC enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross-examined on behalf of the prosecution and/or of the accomplice, if it is so required.”

30. In Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114, this Court observed as under:
“It is true that the statement under Section 313 CrPC cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish the chain of events….”

31. In Dharnidhar v. State of U.P. & Ors., (2010) 7 SCC 759, this Court held:
“The proper methodology to be adopted by the Court while recording the statement of the accused under Section 313 CrPC is to invite the attention of the accused to the circumstances and substantial evidence in relation to the offence, for which he has been charged and invite his explanation. In other words, it provides an opportunity to an accused to state before the court as to what is the truth and what is his defence, in accordance with law. It was for the accused to avail that opportunity and if he fails to do so then it is for the court to examine the case of the prosecution on its evidence with reference to the statement made by the accused under Section 313 CrPC.”

32. In Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012 SC 1357, this Court held as under:
“It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law.”

33. In Munish Mubar v. State of Haryana, AIR 2013 SC 912, this Court, while dealing with the issue of the examination of the accused under Section 313 Cr.P.C. held, that the accused has a duty to furnish an explanation in his statement under Section 313 Cr.P.C. as regards any incriminating material that has been produced against him. Such a view was taken in light of the fact that there existed evidence to show that the accused had parked his car at the Delhi Airport, and that the same had remained there for several hours on the date of commission of the crime in question. Thus, in light of the fact that such a fact had been established, and that such circumstances also simultaneously existed, the accused was expected to explain the reason for which he had gone to the airport, and why the car had remained parked there for several hours.

34. In Ramnaresh (Supra), this Court had taken the view that if an accused is given the freedom to remain silent during the investigation, as well as before the Court, then the accused may choose to maintain silence or even remain in complete denial, even at the time when his statement under Section 313 Cr.P.C. is being recorded. However, in such an event, the Court would be entitled to draw an inference, including such adverse inference against the accused, as may be permissible in accordance with law. While such an observation has been made, this part of the judgment must be read alongwith the subsequent observation of the court stating that if he keeps silent or furnishes an explanation, in both cases, the same can be used against him for rendering a conviction, in so far as it supports the case of the prosecution.

35. In Brajendrasingh v. State of M.P., AIR 2012 SC 1552, this Court held, that it is equally true that a statement under Section 313 Cr.P.C., simpliciter cannot normally be made the basis for convicting the accused. But where the statement of the accused under Section 313 Cr.P.C. is in line with the case of the prosecution, then the heavy onus of providing adequate proof on the prosecution, that is placed is to some extent, reduced.

36. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution’s evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C. is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C.

An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself.

37. We have considered the case in the light of the aforesaid settled legal propositions and reached the following inescapable inferences:

I. Kalawati (PW.3), grandmother of the deceased Pooja, has stated that Indira (PW.2), mother of the deceased Pooja, had removed her silver Kada and had placed it near Pooja. The said Kada has however, not been seized from either the place of occurrence, from their cart, or from the appellant.

II. Witnesses PW.1 to PW.4 have submitted, that the pant, shirt, vest, brief and shoes of the appellant were found lying near the dead body of Pooja. This statement has been disbelieved in its entirety by the High Court, and to such extent, it has been held all the witnesses have given a false statement.

III. There has been an evidence in respect of recovery of blood stained clothes of the appellant which stand falsified by the deposition of Daulatram (PW.7) who had categorically deposed that when he woke him up while sleeping in the jeep, his clothes did not have any blood stained. Hari Singh (PW.9) admitted in his deposition that in Arrest Memo, Ex.P-14 there was no mention that there was any blood on the body of the accused or his clothes.

IV. As per the evidence of PWs.1 to 4, the appellant was apprehended by them when he came and made a demand of Rs.2,000/- to bring Pooja back on 23.5.2001 and was handed over to the police. There could be no explanation by the Investigating Officer as how his arrest had been shown on 27.5.2001.

V. Naurang (PW.4) has categorically deposed that the appellant was shown to such witnesses immediately after his arrest by the police.

VI. The High Court has taken the view that the appellant has also furnished a false explanation. Daulatram (PW.7) was a prosecution witness and the appellant has submitted that he has deposed falsely. Such a statement made by the appellant could not be held to be a false explanation.

VII. The discovery of the body of Pooja by Kalawati (PW.3) is also grossly suspect, owing to the fact that it is neither natural to defecate on the roof of a house, nor to go to the roof of a vacant building in the wee hours of the morning.

VIII. Even if the missing report was filed at 8 O’Clock in the morning of 23.5.2001 and the appellant had approached the witnesses to pay to him a sum of Rs.2,000/-, to bring Pooja back the very same day, there is no reason why the said fact is found to be missing in the FIR that was lodged on 24.5.2001.

IX. In their statements recorded under Section 161 Cr.P.C., witnesses PW.1 to PW.4 have expressed the doubt that they had with respect to the appellant. It is pertinent to note however, that all the statements were recorded on 27.5.2001 and there is no explanation for why such a statement is missing in the FIR lodged on 24.5.2001.

X. Statement of Rohtash (PW.1) was shown to have been recorded on 27.5.2001 though the same was recorded on 24.5.2001 as is evident from the overwriting in the original record.

XI. The recoveries are also highly unbelievable as Daulatram (PW.7) and another witness Ummaid (PW.8), who had been declared hostile, have deposed in the court stating that they had been asked to sign on blank papers. In such circumstances, why was Daulatram (PW.7) also not declared hostile by the prosecution?

XII. Doctor Laxman Singh (PW.12), has deposed before the court, stating that the appellant had on his person, several injuries and that some of the said injuries that were on his right leg, could have been caused by a blunt weapon. No explanation was furnished by the prosecution with respect to such injuries. Moreover, even if some injuries were found on the private parts of the appellant, the same does not conclusively connect him to the crime.

XIII. Gopi Singh (PW.14), the investigating officer, has deposed in court, that a white semen like substance was seized from the spot. Such a statement is not possible to be taken as true for the reason that the colour of the semen is said to have remained white even after the lapse of several hours.

38. In the instant case, there have been major contradictions/ improvements/embellishments in the deposition of witnesses which cannot be ignored when they are examined in the correct perspective. The chain of links connecting the appellant with the crime appears inconclusive. It is a settled legal proposition that, while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence thus provided, in its entirety. The irrelevant details which do not in any way corrode the credibility of a witness, cannot be labeled as omissions or contradictions. Therefore, the courts must be cautious and very particular, in their exercise of appreciating evidence. The approach to be adopted is, if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it may become necessary for the court to scrutinize the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief. “Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.” It is in fact, the entirety of the situation which must be taken into consideration. While appreciating the evidence, the court must not attach undue importance to minor discrepancies, rather must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereo- type investigation. After exercising such care and caution, and sifting through the evidence to separate truth from untruth, embellishments and improvements, the court must determine whether the residuary evidence is sufficient to convict the accused. (Vide: Bihari Nath Goswami v. Shiv Kumar Singh & Ors., (2004) 9 SCC 186; Vijay @ Chinee v. State of Madhya Pradesh, (2010) 8 SCC 191; and Sampath Kumar v. Inspector of Police, Krishnagiri, AIR 2012 SC 1249).

In Kehar Singh & Ors. v. State (Delhi Admn.), AIR 1988 SC 1883, this Court has held that if the discrepancies are material it would be safer to err in acquitting than in convicting the accused.

39. In Subhash v. State of Haryana, AIR 2011 SC 349, this Court has held that a significant omission in the statement of a witness recorded under Section 161 Cr.P.C. may amount to a major contradiction. However, it may depend upon the facts of case and in case of a material contradiction the accused becomes entitled for benefit of doubt and thus acquittal.

40. Thus, we find force in the submissions advanced by Ms. Makhija, learned Amicus Curiae, that evidence produced by the prosecution had been very shaky and the chain of links connecting the appellant with the crime appears inconclusive. The circumstantial evidence is completely wanting in this respect. To accept the description of the evidence collected as flimsy, or no evidence would be too short for convicting the appellant for the offence, as many issues/circumstances virtually remained unexplained.

In view of the above, we have no hesitation in holding that the prosecution failed to prove the case against the appellant beyond reasonable doubt and thus, he becomes entitled for benefit of doubt. Thus, the appeals succeed and are allowed. The conviction and sentence imposed on the appellant are set aside. The appellant be released forthwith unless wanted in some other case.

Before parting with the case, we record our appreciation to Ms. Vibha Datta Makhija, Advocate who rendered invaluable service as Amicus Curiae in disposal of these appeals.

…………………………………………………………….J. (Dr. B.S. CHAUHAN)
……………………………………………………………..J. (FAKKIR MOHAMED IBRAHIM KALIFULLA)

NEW DELHI; May 6, 2013.

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This Second Appeal is focussed as against the judgment and decree dated 21.9.2010 passed by the Principal District & Sessions Judge, Chengalput, confirming the judgement and decree dated 23.9.2008 passed by the Principal Sub-Judge, Chengalput, in O.S.No.143 of 2000

For appellants: Mr.D.Mahesh
For respondents: Mr.N.Manokaran

JUDGMENT

This Second appeal is focussed by the defendants 1 and 2 animadverting upon the judgment and decree dated 21.9.2010 passed by the Principal District & Sessions Judge, Chengalput, confirming the judgment and decree dated 23.9.2008 passed by the Principal Sub-Judge, Chengalput, in O.S.No.143 of 2000, which was one for partition.

2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.

3.Niggard and bereft of unnecessary details, the germane facts absolutely necessary for the disposal of this second appeal would run thus:
(i)The first respondent herein, as plaintiff, filed the suit seeking the following reliefs:
“a)to grant preliminary decree for partition of 3/10th share of the plaintiff in the entire suit properties, dividing the same into 4 equal share in the first instance, allotting one such share (<) to the plaintiff and again dividing the 1/4th share which remains for her late father into 5 equal shares among the plaintiffs and the defendants and allot one such share (1/20) to the plaintiff; totalling (3/10th) share to the plaintiff.

b)to appoint an Advocate Commissioner to divide the suit properties according to their share of the plaintiff and defendants and allot 3/10th share in the suit properties to the plaintiff.

c)to grant permanent injunction restraining the defendants from making any sort of encumbrance over the suit properties.

d)to ascertain the income from the suit properties from the date of the plaint.

e)to direct the defendants to pay the plaintiff the cost of the suit.” (extracted as such)

on the main ground that the suit properties are the ancestral properties; since the plaintiff remained unmarried as on the date of commencement of the Hindu Succession (Tamil Nadu Amendment) Act, [Tamil Nadu Act 1 of 1990), which came into vogue with effect from 25.03.1989, she was deemed to be one of the coparceners. As such, after the death of her father, who happened to be the ‘kartha’ of the family, during the year 2000, she demanded partition, which was refused by her two brothers, namely, Baskaran and Mohandoss/the appellants herein/defendants 1 and 2, which necessitated the plaintiff to file the suit. D3-Varalakshmi and D4-Vijaya Nirmala were married daughters as on 25.3.1989, so to say, on the date of commencement of the Hindu Succession (Tamil Nadu Amendment Act) Act, [Tamil Nadu Act 1 of 1990).

Accordingly, the plaintiff prayed for partition.

(ii)Per contra, the defendants filed the written statement, the gist and kernel of which would run thus:
Varadharaja Mudaliar-the father of the plaintiff and the defendants, acquired the suit properties, namely, items 1 and 2, from out of his own income as a teacher. He, during his life time, volitionally and voluntarily executed the Will Ex.B5 dated 29.4.1994, bequeathing the suit properties in favour of his two sons, namely, D1 and D2 and also specifying that in respect of his three daughters, he performed what were all a dutiful father should do for them and solemnized their marriages and gave them Stridhana etc. As such, the Will came into effect, and the plaintiff is having no right to seek for partition.

Accordingly, the defendants 1 and 2 prayed for dismissal of the suit.

(iii)Whereupon issues were framed. Up went the trial, during which, the plaintiff examined herself as P.W.1 along with P.W.2 and marked Ex.A1 to A12. The first and third defendants examined themselves as D.W.1 and D.W.2 along with D.Ws.3 to 5 and marked Exs.B1 to B10.

(iv)Ultimately the trial Court disbelieving the Will, decreed the suit holding that the first item of the suit properties happened to be the self-acquired property of Varadharaja Mudaliar and the second item of the properties happened to be the coparcenary property of Varadharaja Mudaliar and his children and accordingly, allotted share in favour of Manjula-the plaintiff, as per the following preliminary decree.
“The plaintiff is entitled 1/4th share in the suit 1st item of property and 3/10 share in the suit 2nd item of property. and allot the same by appointing an Advocate Commissioner in the final decree as per the preliminary decree.

(v)Challenging and impugning the judgment and decree of the trial Court, the defendants 1 and 2 preferred the appeal for nothing but to be dismissed by the first appellate Court, confirming the judgment and decree of the trial Court.

4.Being aggrieved by and dis-satisfied with the judgments and decrees of both the Courts below, this second appeal has been focussed by D1 and D2 on various grounds and also suggesting the following substantial questions of law.
“(i)Have not the trial Court and first appellate Court have committed grave illegality in holding that the suit schedule item-II property is the joint family property in the absence of any evidence much less legal evidence let in by the plaintiff either to prove the existence of alleged joint family or to prove suit item-II of the schedule property at the hands of the deceased Varadharajan was held alleged joint family property.
(ii) Have not the trial Court and first appellate Court have committed grave illegality in holding that the property covered under Exhibit-A9 sale deed dated 1.2.1970 purchased by deceased Varadharajan acquired the character of joint family property because in Exhibit-A6 sale deed, dated 9.3.1973 by which deceased Varadharajan sold ancestral property inherited by him and in that recital it was stated that the same was sold to discharge the debts availed for purchase of Nanja Land at Perumattunallur Village.

(iii)Have not the trial Court and first appellate Court had drawn wild presumptions and inferences that the sale proceeds of the Exhibit-A6 sale deed dated 9.3.1973 was utilized to discharge the loans avdailed for purchase of the property covered under Exhibit-A9, dated 1.2.1970. In the absence of any recitals in Exhibit-A6 linking hit sale for the discharge of alleged loan, which is presumed to have availed for purchase of property covered under the Exhibit-A6, especially after Exhibit-A9 purchase the deceased Varadharajan purchased a house property on 28.9.1972 by Exhibit-B3 and another Nanja land on 11.1.1973 by Exhibit-B1, which is just two months prior to Exhibit-A6 Sale dated 9.3.1973. In any event the alleged linkage drawn by the courts below relating to the sale proceeds under Exhibit-A6 to purchase the property under Exhibit-A9 without any specific recitals about in Exhibit-A6 and in the absence of any evidence let in by the plaintiff to prove, such inferences drawn by the courts below is against all canons of jurisprudence and the judgement and decree of the courts below are liable to be set aside.

(iv)Have not the trial Court and first appellate Courts have committed grave material illegality perplexing on the face of record and total non-application of mind in declaring that the plaintiff is entitled to < share in suit item-I and 3/10th share in suit item-II of the property, while holding that the suit item-I is self acquired property of late Vaadharajan, father of the plaintiff and defendants 1 to 4 and suit item-II as joint family property of the plaintiff and defendants 1 and 2 and late Varadharajan. Even if the judgement and decree of the courts below are acceptable, the correct calculation of shares of the plaintiff would be 1/5th share each to the plaintiff and defendants 1 to 4 in the suit item No.-I and 1/4th share each in suit item No.-II to the plaintiff and defendants 1 & 2 and also to late Varadharajan. Further the < share of the deceased Varadarajan devolves upon the plaintiff and defendants 1 to 4. Therefore the net share available to the plaintiff is 6/20 share in suit item-II and defendants 1 & 2 are entitled to 6/20th share each and defendants 3 & 4 are entitled to 1/20th share each. Hence, in view of the above the judgment and decree of the courts below are liable to be set aside.

(v) Have not the courts below erred in holding that Exhibit-B10 is a registered Will duly registered under the provisions of the Indian Registration Act by the deceased Varadharajan was not proved particularly presumption of due execution and genuineness was available under the provisions of the Indian Registration Act and Indian Evidence At, 1872 that the officials acts have been done property in accordance with law.

(vi)Have not the trial Court and first appellate Court erred in holding that Exhibit-B10 Will was not proved by the defendants, especially except the plaintiff the other two daughters of late Varadharajan, namely, the defendants 3 & 4 had not disputed the execution of Exhibit-B10 Will in favour of his sons namely the defendants 1 & 2.

(vii)Have not the courts below committed grave illegality in holding that Exhibit-B10 was not proved especially when the plaintiff’s case was that the suit properties are joint family properties and the signatures in the Will, Exhibit-B10 was admittedly signatures of late Varadharajan.

(viii)Have not the Courts below committed jurisdictional error in decreeing the suit filed by the plaintiff for partition in the absence of any evidence much less legal evidence to prove the alleged joint family as projected by the plaintiff.”
(extracted as such)
5.Heard both.

6.The learned counsel for the appellants/defendants 1 and 2 would pyramid his arguments, which could succinctly and precisely be set out thus:
(i)The suit properties belonged to Varadharaja Mudaliar as his absolute properties, as he was working as teacher during the period between 1946 and 1985 and he earned sufficiently. Those two items of properties were purchased vide sale deeds Exs.A9 dated 01.02.1970 (II item) and Ex.B1 dated 14.1.1973 (I item), respectively.

(ii)The sale considerations for those properties were meager and the preponderance of probabilities are in favour of the contentions of D1 and D2 that their father Varadharaja Mudaliar in all probabilities might have had that much meager amount to purchase those two items of properties as his self-acquired properties.

(iii)Both the Courts below were carried away by the recitals in Ex.A6-the sale deed dated 9.3.1973, wherein formally it was stated as though in order to discharge the loan incurred by Varadharaja Mudaiar to purchase the second item of the suit properties, the ancestral property was sold by him and his the then minor son-Baskaran(D1).

(iv)One cannot try to make a mountain out of mole hill. A Kartha of a family can sell, for discharging his personal loan, the ancestral property, and the decision of the Honourable Apex Court reported in A.I.R. 1936 PRIVY COUNCIL 277-SAT NARAIN AND ANOTHER V. SRI KISHEN DAS AND OTHERS would reveal the same.

(v)Absolutely there is no shard or shred, molecular or mint, jot or iota evidence to exemplify and indicate that income bearing ancestral property was in the hands of Varadharaja Mudaliar and that from out of the income derived from the said property, he purchased the suit items 1 and 2. Wherefore, in the absence of evidence, there is no presumption that the properties purchased by Varadharaja Mudaliar have to be treated as ancestral properties.

(vi)Both the Courts below fell into error in misapplying the law and giving verdicts.

(vii)The fact remains that Ex.B1-the sale deed dated 14.1.1973 in favour of Varadharaja Mudaliar executed by Nataraja Mudaliar would also reveal that within a short span of time, Varadharaja Mudaliar was purchasing several properties and that would connote and denote, convey and portray that Varadharaja Mudaliar had sufficient financial wherewithal to purchase properties and he was not under any dire necessity to raise loan allegedly for the purpose of purchasing the second item of the suit properties.

(viii)The recitals in Ex.A6-the sale deed dated 9.3.1973 should be down played and it cannot be given undue importance. But both the Courts below gave undue importance and decided the lis, warranting interference in second appeal.

(ix)Relating to the Will-Ex.B5 is concerned, it is a registered one. Artificially D.W.3-Venugopal-the attester of the Will-Ex.B5 would wax eloquence as though he had not seen the testator signing the Will and he was not also the identifying witness. His version is quite antithetical to the preponderance of probabilities and the illustration (e) to Section 114 of the Indian Evidence Act.

(x)A public official is presumed to be the one who acted genuinely. D.W.3’s evidence would go contra to his written commitments in Ex.B5-the Will. Over and above that, D.W.5-the scribe after putting his signature under the seal ‘scribed and attested’ in the Will, would veer round and take a plea as though he was not an attesting witness to the Will and that he did not see the signing of the Will by the testator or the witnesses. As such, both the Courts should have taken note of this incongruity and simply ignored those depositions of D.W.3 and D.W.5, and given importance to Ex.B5-the Will.

(xi)Ex.B5 is a solemn document. A dead man’s wish and will should be implemented and that is the bedrock of our jurisprudence. Ignoring that, both the Courts below simply ignored the Will, warranting interference in second appeal.

(xii) Ex.A6-the sale deed emerged on 9.3.1973, whereas the second item of the suit properties was purchased vide sale deed dated 1.2.1970 (Ex.A9) and as such, there is no knowing of the fact as to how subsequent sale of the ancestral property would enable the plaintiff to treat the second item of the suit properties as the one purchased from out of the sale proceeds of the ancestral property. A ‘kartha’ of a joint family can very well sell the joint family property for discharging his personal loan and in such a case, the recitals in E.A6-the sale deed dated 9.3.1973 would not be fatal to the claim of D1 and D2 that the second item of the properties was purchased under Ex.A9 as the self-acquired property of Varadharaja Mudaliar.

Accordingly, the learned counsel for the appellants/D1 and D2 would pray for setting aside the judgments and decrees of both the Courts below.

7.Per contra, the learned counsel for the plaintiff would advance his arguments, buttressing and fortifying the findings given by both the Courts below.

8.The learned counsel for D3 would submit that no doubt as against the judgment of the trial Court or the first appellate Court, no appeal was filed by D3 and in fact, D3 also filed the written statement along with D1 and D2. He would stress upon the fact that in a suit for partition, the plaintiff is the defendant and vice versa. In such a case, the Court would not be hesitant to interfere whenever there is some error in dividing the property, after giving a finding.

9.The Courts below gave a finding categorically that item No.1 of the suit properties happened to be the self-acquired property of Varadharaja Mudaliar. In such a case, axiomatically and obviously, the property of Varadharaja Mudaliar, i.e. item No.1 should have been divided into five equal shares, so to say, among the two sons and the three daughters of Varadharaja Mudaliar. Instead of doing that, both the Courts below fell into error in dividing the property improperly, warranting interference in second appeal and this Court being the High Court can very well rectify the error committed by both the fora below.

10.Whereas, the learned counsel for the plaintiff in all fairness on hearing the extempore argument submitted by the learned counsel for D3 would fully endorse his submission by pointing out that as on 25.3.1989, so to say, on the commencement of the Hindu Succession (Amendment Act) Act, (Tamil Nadu Act 1 of 1990), amending the Hindu Succession Act, the plaintiff alone was unmarried and the other two daughters were married and as such, the defendants 3 and 4 were not entitled to the second item of the suit properties, but only they are entitled to their shares in the first item of the suit properties along with their brothers.

11.As such in view of the extempore submissions submitted by the learned counsel for D3 as well as the submissions made by the learned counsel for the plaintiff, I would like to formulate the following substantial questions of law to the knowledge of both sides:

(i)Whether both the Courts below, after giving findings that item No.(1) of the suit properties happened to be the self-acquired property of Varadharaja Mudaliar and item No.(2) as the ancestral property, were justified in simply dividing the item No.I of the suit properties into four shares and allotting one such share to the plaintiff and that too, in the wake of Varadharaja Mudaliar having died during the year 2000, leaving behind his two sons and three daughters?

(ii)Whether there is any perversity or illegality in the judgments and decrees of both the Courts below?

IN Re ENTERTAINING SECOND APPEAL
12. At the outset itself, I would like to fumigate my mind with the following recent decision of the Hon’ble Apex Court reported in 2012(8) SCC 148 [Union of India v. Ibrahim Uddin and another]; an excerpt from it would run thus:
“59. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of facts or of law. In SBI v. S.N.Goyal (2008) 8 SCC 92, this Court explained the terms “substantial question of law” and observed as under: (SCC p.103, para 13)
“13……The word “substantial” prefixed to ‘question of law’ does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. ‘Substantial questions of law’ means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties ……any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law……There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case.” (emphasis added)

13. In the same precedent, the following decisions are found referred to:
(1) AIR 1962 SC 3314 [Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mgf. Co. Ltd.]
(2) (2011) 1 SCC 673 [Vijay Kumar Talwar v. CIT]
(3) AIR 1947 PC 19 [Bibhabati Devi v. Kumar Ramendra Narayan Roy]
(4) (1949) 17 ITR 269 (Nag) [Suwalal Chhogalal v. CIT]
(5) AIR 1957 SC 852 [Oriental Investment Co. Ltd. v. CIT]
(6) AIR 192 SC 1604 [Jagdish Singh v. Natthu Singh]
(7) (1996) 5 SCC 353 [Parativa Devi v. T.V.Krishnan]
(8) (1998) 6 SCC 423 [Satya Gupta v. Brijesh Kumar]
(9) AIR 2000 SC 534 [Ragavendra Kumar v. Firm Prem Machinery & Co.]
(10) AIR 2000 SC 1261 [Molar Mal v. Kay Iron Works(P) Ltd.]
(11) (2010) 11 SCC 483 [Bharatha Matha v. R.Vijaya Renganathan]
(12) (2010) 12 SCC 740 [Dinesh Kumar v. Yusuf Ali]
(13) (2002) 3 SCC 634 [Jai Singh v. Shakuntala]
(14) (2008) 12 SCC 796 [Kashmir Singh v. Harnam Singh]

14. A mere running of the eye over the above precedents would connote and denote, exemplify and demonstrate that unless there is any substantial question of law is involved, the question of upsetting the finding of the court below would not arise.

IN Re SELF ACQUIRED PROPERTY AND COPARCENARY PROPERTY
15.At the outset itself I would like to advert to the main argument focussed placing reliance on Ex.A6-the sale deed dated 9.3.1973 by both sides.

16.The learned counsel for the appellants/defendants 1 and 2 would stress upon the fact that the following recitals in Ex.A6 should be taken as a formal one. Certain excerpts from it would run thus:
“ehd; ehsJ njjpapy; fPH;tUk; g[“;ir epyj;ij j’;fSf;F U:gha; 4.500-f;F (vGj;jhy; ehyhapuj;J IehW kl;Lk;) Rj;jk; fpuak; bra;J bfhLg;gjha; rk;kjpj;J bjhif mile;j tptuk; ehd; br’;fy;gl;L jhYf;fh. bgUkhl;U:h; fpuhkj;jpy; e”;ir epyk; th’;fpajpy; vw;gl;Ls;s fld; ghf;fpia igry; bra;at[k;. / / / / / / / / @

17.Normally, according to the learned counsel for D1 and D2, while drafting a sale deed there would be formal clauses, so to say, the reason for selling etc. As such, the above recitals in Ex.A6 emerged and undue importance should not be given to them so as to enable the plaintiff to label and dub the second item of the properties as an ancestral property; furthermore, after purchasing of the second item of the suit properties, the question of ushering in support from the subsequently emerged sale deed(Ex.A9) is a well-neigh impossibility.

18.Whereas, the learned counsel for the plaintiff in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of D1 and D2 would submit that the precise question involved here is not concerning any challenge of the sale as contained in Ex.A6, but the right of the plaintiff to place reliance on the recitals therein. Item No.(II) of the suit properties, which was purchased under Ex.A9-the sale deed dated 1.2.1970, was indubitably and indisputably, admittedly and unarguably purchased by Varadharaja Mudaliar-the then kartha of the family by raising loan. The loan was discharged by selling the ancestral property as per Ex.A6-the sale deed dated 9.3.1973. In such a case, the second item of the suit properties should automatically be deemed and treated as the coparcenary ancestral property and both the Courts below appropriately and appositely, correctly and legally rendered their findings, warranting no interference in second appeal.

19. The learned counsel would also cite the decision of this Court in 2012(1) CTC 128-MALLA NAICKER @ SINGARI AND OTHERS.

20.I would also cite the following decisions of the Honourable Apex Court:
(i) AIR 1954 SC 379 (Srinivas Krishnarao Kango vs. Narayan Devji Kango and others). An excerpt from it would run thus:
“8. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.

10. Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case.

Where the finding of the Courts is that the income from the ancestral lands was not sufficient even for the maintenance of the members, and the houses in dispute are substantial, burden is on the plaintiff who alleges the houses to have been acquired out of joint family funds, to establish it.

Held that if the contention that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds,that burden had been discharged.

Likewise, it was held that since the ancestral Watan lands are intact, and were available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family, whether it were held that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds, the result was the same.”

21.The aforesaid decision would unambiguously highlight the point that in order to prove that the property is the joint family property, there should be evidence to show that there was joint family nucleus and income was arising out of it so as to enable the joint family to purchase additional properties and that the burden of proof is on the person, who pleads that even though the property might stand in the name of one of the co-sharers, nonetheless, it belongs to the joint family. Undoubtedly, this case should necessarily be analysed in the light of the dictum set out in the cited decision.

(ii) AIR 1960 SC 335 (Rukhmabai vs. Lala Laxminarayan and others) and an excerpt from it would run thus:
“5. There is a presumption in Hindu law that a family is joint. There can be a division in status among the members of a joint Hindu family by refinement of shares which is technically called division in status , or an actual division among them by allotment of specific property to each one of them which is described as division by metes and bounds . A member need not receive any share in the joint estate but may renounce his interest therein, his renunciation merely extinguishes his interest in the estate but does not affect the status of the remaining members vis-a-vis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though primafacie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property.”

22.A mere running of the eye over the above precedent would exemplify and demonstrate, portray and parody that once there is admission by the ‘kartha’ himself that by selling the ancestral property, a new property, in this case, the item No.II, was purchased, then that should be deemed to be the joint family property. Here there is no question of putting the horse behind the cart or putting the cart before the horse. The recitals in Ex.A6-the registered document cannot be resiled from in view of Sections 91 and 92 of the Indian Evidence Act.

23.In this connection I would like to cite the following decision of the Honourable Apex Court.
(i) 1993-2-L.W.205 NANJAMMAL (DIED) AND ANOTHER V. PALANIAMMAL, certain excerpts from it would run thus:
“5. It was one of the contentions urged in the Court below that the plaintiff had not even obtained encumbrance certificate before the execution of Exhibit A1 and she had not taken the title deed from the defendant. The Court below has pointed out the recital in Exhibit A1 under which the defendant had undertaken to obtain an encumbrance certificate and give it to the plaintiff. The fact that the plaintiff had not taken the title deed in advance does not in any way discredit the truth of the agreement in Exhibit A1. In fact, the evidence of the defendant is that what was written was really an agreement though it was only for the purpose of securing the loan. She (defendant) has admitted that the plaintiff wanted her to execute an agreement for sale by way of security for the loan and she did execute such an agreement. When that is the fact, it is not open to the defendant to raise a plea that the terms of the agreement should be ignored as the real purpose was to secure the loan transaction. It is conceded by learned counsel for the appellants that the defendant is barred from raising such a plea by S.92 of the Indian Evidence Act.
6. Hence the only question to be considered is whether the relief of specific performance should not be granted to the plaintiff. The normal rule is that once the truth of the agreement is made out the Court shall enforce it unless there are circumstances which would prove that equity will suffer by enforcing the agreement for sale. In the present case no such circumstances has been brought to the notice of the Court either in the pleadings or in the evidence to show that equity favours the defendant and relief of specific performance should be denied. The defendant has stated in the evidence that the property was worth much more than Rs.1,01,000/- at the time of the agreement. But there is absolutely no evidence in support of the same. No document has been produced to prove the value of the lands in the locality and no witness has been examined to speak to the same. In such circumstances we cannot accept the case of the defendant that the property is more valuable than the consideration mentioned in Exhibit A1.”

(ii) (1982) 1 SCC 4, at page 10 -Gangabai v. Chhabubai, certain excerpts from it would run thus:
“11. The next contention on behalf of the appellant is that sub-section (1) of Section 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parol evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-section (1) of Section 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. And the first proviso to Section 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-section (1) of Section 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties (Tyagaraja Mudaliyar v. Vedathanni919). The trial court was right in permitting the respondent to lead parol evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parol evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail.

24.A mere perusal of those decisions would highlight and spotlight that if there are certain recitals in a registered document then contra evidence cannot be adduced by either of the parties. Pleading that the said document was not intended to be acted upon, is different from pleading that certain averments found set out therein are untrue.

25.Those precedents would unambiguously and unequivocally indicate and exemplify the fact that the recitals in a registered deed cannot be given a go-by and the party who committed himself in black and white cannot veer round and take an antithetical stand.

26.Absolutely there no shard or shred, miniscule or molecular, jot or pint of evidence to convey and display as to why those recitals in Ex.A6 should be ignored or pooh-poohed, belittled or slighted for the purpose of benefiting D1 and D2. As such, the recitals in Ex.A6-the sale deed dated 9.3.1973 should be given due weightage.

27.Accordingly, if viewed it is crystal clear that the second item of the suit properties was not purchased from out of the self acquired income of Varadharaja Mudaliar, but only by raising loan, which was discharged from out of the sale proceeds, which he got subsequently under E.A6, by selling the ancestral property. Not to put too fine a point on it, there is no embargo as per law to treat such a property as ancestral property and the finding of both the Courts below is in concinnity and commensurate with the aforesaid precedents also.

28.Regarding the first item of the suit properties is concerned, the Courts below held that there is nothing to indicate that as per Ex.B1-the sale deed 14.1.1973 the first item of the suit property was purchased from out of the joint family income.

29. This is a peculiar and singularly singular case, in which, the plaintiff failed to adduce evidence to establish and demonstrate that Varadharaja Mudaliar had income bearing ancestral nucleus. In such a case, it cannot be assumed that the first item of the suit property was purchased from out of the income derived from the ancestral nucleus. Over and above that, the findings of both the Courts below is based on analysis of fact which this Court, while exercising its power under Section 100 of C.P.C. may not be willing to interfere with the same and that is also not legally permissible, unless there is any perversity or illegality and I could see no perversity or illegality in such a finding also.

IN re PROVING THE WILL-EX.B5
30.Relating to the Will is concerned, the learned counsel for the plaintiff would try to place heavy reliance on illustration (e) to Section 114 of the Indian Evidence Act. Before discussing on merits the evidence as well as the findings concerning the Will, I would like to keep myself informed of the following decisions, as my mind is reminiscent and redolent of the same.
1. 1994 (5) SCC 135 (Bhagwan Kaur vs. Kartar Kaur and others
2. 2003 (12) SCC 35 (Bhagat Ram and another vs. Suresh and others)
3. 2006 (13) SCC 449 (B.Venkatamuni vs. C.J.Ayodhya Ram Singh and others)

31.A perusal of the aforesaid judgments would cumulatively reveal that the propounder of a Will has to prove the due execution of the Will by the testator as per Section 63 (c) of the Indian Succession Act r/w Section 68 of the Indian Evidence Act. There could be no quarrel over the proposition that a Will has to be proved strictly in accordance with those aforesaid provisions of law.
(i) 2005(1) SCC 40 [Daulat Ram and other vs. Sodha and others]
(ii) 2005(1) SCC 280 [Meenakshiammal (Dead) through LRs. and others vs. Chandrasekaran and another]
(iii) 2005(1) CTC 443 [Sridevi and others vs. Jayaraja Shetty and others]
(iv) 2005(1) L.W.455 [Janaki Devi vs. R.Vasanthi and 6 others]
(v) 1989 (1) L.W.396 [Nagarajan and 3 others vs. Annammal]
(vi) AIR 1982 SC 133 [Smt.Indu Bala Bose and others vs. Manindra Chandra Bose and another]
(vii) AIR 1985 SC 500 [Satya Pal Gopal Das vs. Smt. Panchubala Dasi and others]
(viii) AIR 1991 Bom. 148 [Asber Reuben Samson and others v. Eillah Solomon and others]
(ix) 2008(2) MLJ 119 [M.Anandan and others vs. A.Dakshinamoorthy]
(x) 2006(4) L.W.942 [Gurdev Kaur & others vs. Kaki & others]
(xi) 2008(1) MLJ 1337 SC [Savithri and others vs. Karthyayani Amma and others]
(xii) 2007(3) L.W.916 [1. J.Mathew (died) 2. J.Damien and 3 others vs. Leela Joseph]
(xiii) (1990) 1 SCC 266 (Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur vs. Smt.Chhoti and others)
(xiv) (1990) 3 SCC 364 (Ram Piari vs. Bhagwant and others)
(xv) (1962) II Madras Law Journal Reports (Supreme Court) 27 (Rani Purnima Debi and another vs. Kumar Khagendra Narayan Deb and another)
(xvi) 1976 STPL (LE) 8415 SC (Smt.Jaswant Kaur vs. Smt.Amrit Kaur and others)
(xvii) 1984 (II) MLJ 133 (M.Krishnan vs. Ramaswami and others)
(xviii) 2004 (1) CTC 619 (SC) (P.S.Sairam and another vs. P.S.Rama Rao Pisey and others)
(xix) (2008) 8 MLJ 647 (Thayammal vs. Ponnusamy and another)

32.Among the aforesaid decisions, the decision of this Court reported in 2001(3)CTC 283 [Corra Vedachalam Chetty and another vs. G.Jankiraman] is on the point that the Court while analysing the Will is acting as a Court of conscience. An excerpt from the above said decision would run thus:
“26. This need for caution, cannot be exploited by unscrupulous caveators who choose to cull out imaginary suspicions with a view to prevent the legatees under the Will from claiming the benefit thereunder and to render the last Will of the deceased wholly ineffective. In this context, the conduct of the persons who raise the alleged ground for suspicion is also to be looked at, to know as to how credible are the grounds for suspicions sought to be raised by such persons. In this case, the suspicion is sought to be raised by a person who is keenly interested in making the Will ineffective and whose conduct is far from one which would inspire confidence in truthfulness of his statements.”
33.As such, the cited precedent would also highlight that the Court should not attach undue importance to imaginary suspicions. All these aforesaid decisions are on the point that the Court should not at the time of analysing the validity of the Will proceed on the hypothesis that the Will is an invalid one.

34. At this juncture, my mind is reminiscent and redolent of one other decision reported in 2003(1)CTC 308 [ Janki Narayan Bhoir vs. Narayan Namdeo Kadam]. An excerpt from it would run thus:
“8. To say will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witness has to sign the Will in the presence of the testator.

9. It is thus clear that one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory.

10. Section 68 of the Evidence Act speaks as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of the proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of the clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in this evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.”

35. A plain reading of the above decision would highlight that if there are suspicious circumstances, then the same should be dispelled to the satisfaction of the Court by the propounders of the Will.

36. With this in mind, this Court is enjoined to analyse the evidence as well as the facts placed before it for the purpose of deciding the substantial questions of law involved in this case.

37. So far interpretation of documents is concerned, the following maxims would govern the adjudication:
(a) Verba generalia genaraliter sunt intelligenda General words are to be understood generally.
(b) Verba ita sunt intelligenda, ut res magis valeat quam pereat – Words are to be so understood that the matter may have effect rather than fail.
(c) Qui haeret in litera, haeret in cortice: One who clings to the letter clings to the shell or surface.
(d) Mala grammatica non vitiat chartum. Sed in expositione instrumentorum mala grammatics quoad fieri possit evitanda est Bad grammar does not vitiate a deed. But in the exposition of instruments, bad grammar, as far as it can be done, is to be avoided.

38. The above maxims would connote and denote that a document has to be interpreted in such a manner so as to validate it and not to invalidate it, but those maxims blindly cannot be applied in respect of Will.

39.I also I recollect and call up the following maxim:
‘In dubiis non praesumitur pro testamento’ In doubtful cases, there is no presumption in favour of the Will.

40.So far Will is concerned, which is a solemn document, it should be proved beyond reasonable suspicion. As such, while interpreting a document other than Will, the approach of the Court is different.

41.To put in single syllable words, while interpreting documents other than Wills, the Courts are enjoined to interpret the impugned documents in such a manner so as to validate rather than invalidate them over looking insignificant mistakes or errors in them. But exception is to the Will. A Will cannot be interpreted so as to validate it if there are suspicious circumstances and over and above that the Honourable Apex Court had occasion to reiterate, to the risk of repetition, but without being tautalogous, that strictly in accordance with Section 68 of the Indian Evidence Act, and if necessary as per Section 69 of the Indian Evidence Act, the Will has to be proved. Here to say the least, absolutely there is no shard or shred, iota or jot of evidence in support of the Will.

42.I would like to suo motu refer to the following decision of the Honourable Apex Court:
(2005) 8 SUPREME COURT CASES 67 PENTAKOTA SATYANARAYANA AND OTHERS V. PENTAKOTA SEETHARATNAM AND OTHERS, certain excerpts from it would run thus:
“24.In the instant case, the propounders were called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above. It was argued by learned counsel for the respondent that the propounders themselves took a prominent part in the execution of the Will which confer on them substantial benefits. In the instant case, the propounders who were required to remove the said suspicion have let in clear and satisfactory evidence. In the instant case, there was unequivocal admission of the Will in the written statement filed by P.Srirammurthy. In his written statement, he has specifically averred that he has executed the Will and also described the appellants as his sons and Alla Kantamma as his wife as the admission was found in the pleadings. The case of the appellants cannot be thrown out. As already noticed, the first defendant has specifically pleaded that he had executed a Will in the year 1980 and such admissions cannot be easily brushed aside. However, the testator could not be examined as he was not alive at the time of trial. All the witnesses deposed that they had signed as identifying witnesses and that the testator was in sound disposition of mind. Thus, in our opinion, the appellants have discharged their burden and established that the Will in question was executed by Srirammurthy and Ext.B-9 was his last Will. It is true that registration of the Will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The Registrar has made the following particulars on Ext.B-9 which was admitted to registration, namely, the date, hour and place of presentation of the document for registration, the signature of the person admitting the execution of the Will and the signatures of the identifying witnesses. The document also contains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along with his signature and date of document. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and are correctly recorded. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. In such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same.”

43.However, the Honourable Apex Court, in the subsequent decision in B.VENKATAMUNI V. C.J.AYODHYA RAM SINGH [(2006)13 SCC 449)], in respect of PENTAKOTA SATHYANARAYANA’S CASE – (2005) 8 SUPREME COURT CASES 67), observed thus:
“However, having regard to the fact that the will was a registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not (sic) know well the contents of the will and in sound disposing capacity executed the same.
23.Each case, however, must be determined in the fact situation obtaining therein.”

44.The precedent referred to supra, namely, B.VENKATAMUNI’s case is referred to in the decision of the Honourable Apex Court reported in (2009)4 SUPREME COURT CASES 780 YUMNAM OBGBI TAMPHA IBEMA DEVI V. YUMNAM JOYKUMAR SINGH AND OTHERS.

45.Wherefore, the current law on the subject is that even if a Will is an admitted one, the burden of proof is on the propounder of the Will to prove it by examining witness/witnesses and it should be established strictly in accordance with Section 68 of the Indian Evidence Act.

46.D.W.3 pulling no punches candidly and categorically stated thus:

47.D.W.3 was also presumably cross-examined by advocate for D.1 and D.2, but in the deposition, the commencement of cross-examination was not separately shown, even though the answers of D.W.3 would indicate and point up that he gave such answers only during cross examination. D.W.3 candidly and categorically stated that he simply put his signature in the Will, but he did not see the testator signing it and according to him one other attesting witness also died. He also disowned his signature as identifying witness-Ex.B5.

48.A mere perusal of Ex.B5 the Will would show up that one and the same witnesses, namely, Kuppusamy and Venugopal signed as the attesting witnesses as well as the identifying witnesses. But Venugopal-D.W.3 would depose that he did not sign as attesting witness.
49.The learned counsel for D.1 and D.2 would submit that witnesses might go to the extent of denying anything and everything under the sun, but it is for the Court to hold such denial as false and separate the truth from falsehood; Ex.B5 is a registered Will and in such a case, the Registrar might not have gone to the extent of simply colluding with some persons and registered the Will. Both the Courts below failed to consider the probabilities in that aspect.

50.The learned counsel for the plaintiff, by way of reply to such an argument put forth by the learned counsel for the appellants/D1 and D2, would put forth his arguments, a thumbnail sketch of the same would run thus:
It is not as though the Legislators were not aware of the juridical act of registration of Will and also significance attached to such registration; nevertheless the Legislators in their wisdom thought fit to clearly stipulate under Sections 68 and 69 of the Indian Evidence Act that despite admission of either a registered Will or an unregistered Will it should be proved by examining at least one of the attesting witnesses.

51.Here, as has been discussed supra, the deposition of D.W.3 in no way supports the case of the propounder of the Will, namely, D.1 and D.2, who are claiming to be the beneficiaries under the Will and in fact, it boomerangs as against them.

52.The learned counsel for the defendants would try to place reliance on the deposition of D.W.5-the scribe by pointing out that as an ‘A’ grade scribe, he signed Ex.B5 under the seal “drafted and attested”, and in such a case, his subsequent resiling from his commitment cannot be given undue importance, but that has to be ignored and the genuineness of the Will should be upheld.

53.Whereas, the learned counsel for the plaintiff would submit that the scribe no doubt signed under his seal “drafted and attested”, but he has not put his signature as one of the witnesses along with Kuppusamy and Venugopal and as such, animus attestandi is absent.

54.It is quite obvious from a mere look at Ex.B5-the Will, that the scribe did not sign beneath the signatures of Venugopal in that attesting witnesses column, but he would, beneath his seal, sign and in his deposition he would reiterate that he signed not in his capacity as an attesting witness, but only as a scribe.

55.Even for argument’s sake it is taken that since the scribe signed under the seal “drafted and attested”, he should be taken as an attesting witness, yet his evidence is to the contrary. He would repeatedly assert that he did not see the testator signing or the attesting witnesses signing the Will. Wherefore D.W.5’s deposition would not come to the help of D1 and D2.

56.In the facts and circumstances of this case, no steps have been taken to summon the Registrar to prove the signature of D.W.3 as one of the identifying witness, but for reasons best known to themselves, they have not chosen to do so.

57. As such, in the light of the dictum laid down by the Honourable Apex Court concerning the proof of the Will, scarcely could it be taken that the available evidence of D.W.3 and D.W.5 could be taken as sufficient to prove the Will-Ex.B5

58.It is the categorical assertion of the defendants that only a few days after the execution of the Will by their father, the defendants came to know about it.

59.When such is the position, D.W.1(D1) and D.W.4(D2) were not competent to talk about the genuineness of the Will, because they could not have seen, as per their own version, the testator signing and also the attesting witnesses attesting the Will. As such, both the Courts below au fait with law and au courant with facts held and that too, after due analysis of the evidence, that the Will-Ex.B5 was not proved, warranting no interference in second appeal.

IN RE ALLOTMENT OF SHARES
60.I could see no perversity or illegality in the findings of both the Courts below. However, in view of the fact that after giving the finding that the first item of the suit properties was the self acquired property of Varadharaja Mudaliar and that Varadharaja Mudaliar died intestate during the year 2000, leaving behind his five children, the first item of the suit properties should have been divided into five shares and the plaintiff and D.1 to D4 should have been allotted 1/5th share each; wherefore I hereby allot accordingly.

61.Regarding the second item of the suit properties is concerned, in view of the finding that it is an ancestral property, as on the date of death of Vardharaja Mudaliar during the year 2000, the property notionally should be divided into four shares. Varadharaja Mudaliar and the plaintiff and D.1 and D.2 were entitled to 1/4th share each. Out of that, the 1/4th share notionally allotted to Varadhara Mudaliar should be further divided into five shares, and 1/5th share each, out of such 1/4 share, should be allotted in favour of the plaintiff and D.1 to D4.

62.On balance, the substantial questions of law are answered as under:
Substantial Question of Law No.(i) is decided to the effect that both the Courts below were not justified in allotting shares after giving the correct finding that item No.(I) of the suit properties was the self-acquired property of Varadharaja Mudaliar and the second item was the ancestral property in the hands of Varadharaja Mudaliar.
Substantial Question of Law No.(ii) is decided to the effect that there is perversity and illegality in the judgements and decrees of both the Courts below.

62.Accordingly, the preliminary decree stood modified as indicated supra. The ambiguity, if any, shall stand disambiguated in the preliminary decree and afresh a preliminary decree shall follow in the aforesaid manner in respect of the first and second items of the suit properties. Wherefore the judgments and decrees of both the fora below shall stand modified as above.

63.In the result, the second appeal is disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed. 19.3.2013

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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1791 OF 2008

SURINDER SINGH …APPELLANT
Versus
STATE OF HARYANA …RESPONDENT

J U D G M E N T

(SMT.) RANJANA PRAKASH DESAI, J.

1. In this appeal judgment and order dated 01/11/2007 passed by the Punjab and Haryana High Court is under challenge.

2. The appellant is original accused no. 1. He was tried along with Hazura Singh–original accused no. 2, Narata Singh–original accused no. 3 and Kaushalya – original accused no. 4 for offences punishable under Sections 498A and 304B of the IPC by the Additional Sessions Judge Yamuna Nagar in Sessions Case No. 60 of 1994. Appellant is the husband of deceased Anita (“the deceased” or “Anita”). Accused no. 2 is his father, accused no. 3 is his uncle and accused no. 4 is his mother.

3. The deceased was daughter of Ram Lal. Admittedly, she was married to the appellant on 24/04/1994. According to the prosecution, the accused were not satisfied with the quality and quantity of the dowry given at the time of marriage. They used to taunt and beat the deceased. At times, they used to keep her hungry. She had informed her brothers and father about this ill-treatment and harassment. Her brother Ashok Kumar and his brother-in-law Pawan Kumar went to the house of the accused and protested. At that time the accused told Ashok Kumar that if he had so much affection for his sister he should give Rs.60,000/- for the business of the appellant. Ashok Kumar expressed his helplessness to meet the demand. Ashok Kumar sent his younger brother Satish Kumar to bring the deceased home, but, the accused told him that he should take the deceased home after some days. On 22/07/1994 the uncle of the appellant i.e. accused no. 3 – Narata Singh went to the house of the parents of the deceased and told them that Anita-the deceased had committed suicide by burning herself. Ashok Kumar accompanied by his father, brother Satish Kumar and brother-in-law Pawan Kumar went to the house of the accused. The burnt dead body of Anita was found kept on a cot in the verandah. Ashok Kumar, then, went to P.S. Yamunanagar and lodged FIR Exhibit-PK. On completion of investigation the accused came to be charged as aforesaid.

4. The prosecution examined, inter alia, PW-6 Satish Kumar and PW-7 Ashok Kumar, who unfolded the prosecution story about the ill-treatment meted out to the deceased. PW-9 Dr. V.K. Nagpal conducted the post-mortem and gave report Exhibit-PH. PW-11 Maharaj Singh, DSP, who conducted the investigation, gave details of investigation.

5. The accused denied the allegations of demand of dowry and harassment to the deceased. The appellant in his statement recorded under Section 313 of the Cr.P.C. stated that the deceased was well looked after. Lot of affection was shown to her. When she was carrying, proper medical treatment was given to her. She developed complications and pregnancy had to be terminated. The doctors told her that whenever she conceives she will have problem of bleeding. The deceased was last examined on 19/07/1994. After her abortion the deceased was in depression and, therefore, she committed suicide. The accused examined three doctors. They are DW-1 Dr. Mrs. Iqbal Kaur, DW-2 Dr. Fitu Mago and DW-3 Dr. C. Vijayendra. DW-4 Anil Kumar, the brother-in-law produced letter Exhibit-DF received by him from the deceased.

6. The trial court by its judgment and order dated 01/08/1998 convicted the appellant and other accused for offence punishable under Section 304-B of the IPC and sentenced them to undergo RI for seven years each. The accused were also convicted for offence punishable under Section 498A of the IPC and sentenced to suffer RI for two years each. They were ordered to pay a fine of Rs.1,000/- each, in default, they were directed to undergo RI for six months. The substantive sentences were ordered to run concurrently.

7. The accused carried an appeal to the Punjab and Haryana High Court. The High Court acquitted accused nos. 2 to 4 on the ground that allegations made against them were vague and that they were living separately from the appellant. The High Court, however, confirmed the conviction and sentence of the appellant, hence, this appeal to this Court.

8. Learned senior counsel for the appellant Mr. Nidhesh Gupta submitted that since on the same set of evidence all the other accused have been acquitted the appellant should also have been acquitted because no part of the evidence involves the appellant alone. Counsel submitted that there is nothing on record to establish that the deceased was subjected to cruelty or harassment by the appellant. Counsel submitted that, in any case, the prosecution has failed to establish that the alleged cruelty and harassment was in connection with dowry. The allegations are too general and vague. No specific allegations are made against the appellant therefore Section 304B of the IPC is not attracted. Presumptions under Section 304B of the IPC and Section 113B of the Indian Evidence Act, 1872 also do not arise in this case. The witnesses have made only bald statements. No independent witnesses like neighbours have been examined to prove that the deceased was treated with cruelty. Thus, the conviction of the appellant under Section 304B of the IPC is not sustainable. In this connection counsel relied on Surinder Kaur and anr. v. State of Haryana1 , Durga Prasad and anr. v. State of Madhya Pradesh2 and Geeta Mehrotra and anr. v. State of Uttar Pradesh and anr.3 Counsel further submitted that so far as demand of Rs.60,000/- is concerned, no date of demand is mentioned, therefore, it is not possible to say that this alleged demand was made soon before the death. Moreover, the demand was made for business of the appellant, therefore, it cannot be called a dowry demand. In this connection counsel relied on Vipin Jaiswal (A-I) v. State of Andhra Pradesh represented by Public Prosecutor4 .. Drawing our attention to letter Exhibit-DF dated 16/07/1994 counsel submitted that this letter was written by the deceased just 15 days before the date of incident to DW-4 Anil Kumar, who is brother-in-law of the appellant. In that letter she has made no grievance about the alleged harassment or cruelty. In fact, she has made fond reference to the members of the appellant’s family. This shows that allegations of harassment and cruelty are false. Counsel also drew our attention to the evidence of the doctors examined by the appellant in support of his defence. He submitted that it is clear from their evidence that while the deceased was pregnant she was bleeding and, therefore, her pregnancy had to be terminated. The deceased was told that she may not conceive a child. Thereafter, the deceased went into depression. She appears to have committed suicide while in depression. In the circumstances, the appellant cannot be convicted under Section 304B and 498A of the IPC. His conviction and sentence deserves to be set aside.

9. Learned counsel for the State of Haryana Mr. Kamal Mohan Gupta submitted that PW-6 Satish Kumar and PW-7 Ashok Kumar, brothers of the deceased, have unfolded the prosecution case. They are reliable and trustworthy witnesses. They have described the ill-treatment meted out to the deceased and the demand of dowry made by the appellant. Counsel submitted that the demand of Rs.60,000/- related to the appellant’s business. The evidence of PW-6 Satish Kumar and PW-7 Ashok Kumar makes reference to the specific date of demand and specific amount, which was demanded by the appellant. Counsel submitted that deceased Anita died within 94 days of marriage. There can be no doubt that her death caused by burns was otherwise than under normal circumstances. The conviction of the appellant is legal and perfectly justified and, therefore, the appeal be dismissed.

10. The evidence of PW-6 Satish Kumar and PW-7 Ashok Kumar, brothers of the deceased, gives us the prosecution story. PW-7 Ashok Kumar is the complainant, hence, we shall first advert to his evidence. He stated that the deceased was married to the appellant on 20/04/1994. The accused were not satisfied with the quality and the quantity of the dowry given by them at the time of marriage. They used to taunt the deceased and the deceased had told him about this many times. The accused used to demand Rs.60,000/- for the business of the appellant or for getting him some job. PW-7 Ashok Kumar further stated that once he and his brother-in-law Pawan Kumar visited the house of the appellant to request the accused to treat the deceased properly. According to him, the accused told him that if he had so much affection for his sister he should pay Rs.60,000/- to them. He expressed inability to do so. On 05/07/1994 the deceased came to their house and even at that time she told them about the demand of Rs.60,000/-. PW-7 Ashok Kumar further stated that on 21/07/1994 they received a message that Anita should be taken home. He sent his brother PW-6 Satish Kumar to bring his sister home but the accused did not send her. On 22/07/1994 Narata Singh, uncle of the appellant, came to their house and told them that Anita had committed suicide. PW-7 Ashok Kumar went to the house of the accused along with his brother PW6 Satish Kumar, his father and brother-in-law Pawan Kumar. He saw the dead body of his sister kept in a verandah. He, then, lodged FIR Exhibit-PK. It is pertinent to note that in the FIR also PW-7 Ashok Kumar has stated that the accused demanded Rs.60,000/-, for the business of the appellant or for getting him some job. PW-6 Satish Kumar corroborates PW-7 Ashok Kumar. PW-6 Satish Kumar also stated that accused were not satisfied with the dowry and they used to taunt his sister for bringing less and inferior quality of dowry. He stated that the accused used to beat the deceased and keep her hungry and the deceased used to tell them about the misbehaviour of the accused whenever she came home. He further stated that on 05/07/1994 the deceased told him that the accused are demanding Rs.60,000/- for investing in the business of the appellant. They expressed their helplessness to pay the amount. The accused continued to beat the deceased. He further stated that on 21/07/1994 PW-7 Ashok Kumar received a message from his sister that she should be brought to their house. He, then, went to the appellant’s house to bring the deceased home. The accused asked him to fulfill their demand before taking his sister with him to his house. He returned home alone. PW-6 Satish Kumar further stated that on 22/07/1994 Narata Singh, uncle of the appellant came to their house and informed them that Anita had committed suicide. He went to the house of the appellant along with his father and brother and found that the dead body of Anita was kept in the verandah. Thus, the evidence of these two witnesses establishes that the deceased was treated with cruelty. She was subjected to harassment in the appellant’s house because the dowry given in the marriage was inadequate and not of good quality. It is also established that the accused wanted Rs.60,000/- for investing in the appellant’s business or for getting him some job.

11. The fact that the marriage took place on 20/04/1994 is not disputed. Anita died on account of burns in the appellant’s house. Her death was otherwise than under normal circumstances. She died just within 94 days of the marriage. It is true that the relatives of the appellant have been acquitted on the ground that there are no specific allegations against them. It is argued that, therefore, the appellant should also be acquitted because the allegations are general as against him also. We are unable to agree with this submission. There is a great difference between the allegations levelled against the relatives of the appellant and the appellant. The entire prosecution story revolves around the appellant. The demand of Rs.60,000/- relates to the appellant. The witnesses are specific on this point. PW7 Ashok Kumar has stated so in the FIR also. Therefore, the appellant’s case stands on a different footing.

12. It is further argued that neither PW-7 Ashok Kumar nor PW-6 Satish Kumar have stated the exact date on which they went to the house of the accused when the demand for Rs.60,000/- was made and, therefore, it is not possible to locate the date on which demand for Rs.60,000/- was made. Resultantly, it is not possible to say whether the demand was made soon before the death of Anita. We have no hesitation in rejecting this submission.

13. Section 113B of the Indian Evidence Act, 1872 states that 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. Section 304B of the IPC states that 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. Thus, the words ‘soon before’ appear in Section 113B of the Indian Evidence Act, 1872 and also in Section 304B of the IPC. For the presumptions contemplated under these Sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words ‘soon before’ is, therefore, important. The question is how ‘soon before’? This would obviously depend on facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, ‘soon before’ is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.

14. In this connection we may refer to judgment of this Court in Kans Raj v. State of Punjab5 where this Court considered the term ‘soon before’. The relevant observations are as under:
“… … … “Soon before” is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term “soon before” is not synonymous with the term “immediately before” and is opposite of the expression “soon after” as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be “soon before death” if any other intervening circumstance showing the nonexistence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.”
Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law.

15. The evidence of brothers of Anita show that after marriage Anita was unhappy in the matrimonial house because of the ill-treatment meted out to her. Anita died otherwise than under normal circumstances in her husband’s house within three months and four days of marriage. It is, indeed, a very short period. The cruelty was spread over the short period covering the date of her marriage till her death displaying a course of conduct. In her case, in our opinion, cruelty caused to her on any day from the date of her marriage i.e. 20/04/1994 till the date of her death i.e. 22/07/1994 could be cruelty caused ‘soon before’ her death. Therefore, even if date of their visit to the appellant’s house, when the demand was made, is not stated by Anita’s brothers in the court, that hardly makes any difference. In any case, the brothers have stated that on 05/07/1994 Anita came to their house and told them about the demand. Anita died shortly thereafter.

16. That takes us to the next submission that Rs.60,000/- were demanded after the marriage for the business of the appellant, and, therefore, it is not a dowry demand. In this connection, reliance is placed on Vipin Jaiswal. In that case the appellant therein was married to the deceased on 22/02/1996. The case of the prosecution was that ever since the marriage, the deceased was subjected to physical and mental torture by the appellant and others for not getting sufficient dowry. The trial court convicted all the accused under Sections 304B and 498A of the IPC. The High Court acquitted the relatives of the appellant-husband, but, confirmed his conviction. It is pertinent to note that while acquitting the appellant this Court took note of the fact that the deceased had left a suicide note in which she had stated that nobody from her husband’s family was responsible for her death. The High Court while noting that the allegations against the appellant were general in nature stated that the demand of Rs.50,000/- was made six months after the marriage and that was for enabling the appellant therein to purchase a computer and for setting-up his own business. This Court held that demand made for purchasing a computer, six months after the marriage, was not a demand in connection with marriage and was not a dowry demand within the meaning of Section 2 of the Dowry Prohibition Act, 1961. Vipin Jaiswal is not applicable to the present case. Explanation to Section 304B of the IPC states that for the purpose of this sub-section, dowry shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. Section 2 of the Dowry Prohibition Act, 1961, so far as it is material to this case, states that dowry means any property or valuable security given or agreed to be given either directly or indirectly by one party to a marriage to the other party to the marriage at or before or at any time after the marriage in connection with the marriage of the said party. Thus, the emphasis is on property or valuable security given ‘at or before’ or ‘at any time after’ the marriage in connection with marriage. The amount or things demanded must, therefore, have a nexus with the marriage. In this case both the brothers i.e. PW-6 Satish Kumar and PW-7 Ashok Kumar, brothers of the deceased, have clearly stated that the accused were unhappy by the quality and quantity of the dowry and the deceased was being taunted and beaten-up for that. The words ‘insufficient and inferior quality of dowry’ are important. They indicate that the transaction of giving dowry was not complete. Sufficient quantity of dowry was not given and that transaction was sought to be completed by asking for Rs.60,000/- after the marriage for the business of the appellant. This demand has a connection with the marriage. Therefore, in our opinion Vipin Jaiswal is not applicable to the present case.

17. We are mindful of the fact that in Vipin Jaiswal this Court relied upon Appasaheb and anr. v. State of Maharashtra6 . In that case the accused was convicted under Section 304B read with Section 34 of IPC. The incident had taken place on 15/09/1991. The deceased was married to the accused about 2 ½ years prior to the date of the incident. The deceased consumed poison and died in the house of the accused. The allegations were that there was a demand for money and consequent beating of the deceased. The evidence disclosed that the demand was made for defraying expenses of manure etc. This Court held that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. This Court held that being a penal provision Section 2 of the Dowry Prohibition Act, 1961 will have to be construed strictly.

18. It is true that penal provisions have to be construed strictly. However, we may mention that in Murlidhar Meghraj Loya v. State of Maharashtra7 this Court was dealing with the Prevention of Food Adulteration Act, 1954. Speaking for this Court, Krishna Iyer, J. held that any narrow and pedantic, literal and lexical construction of food laws is likely to leave loopholes for the offender to sneak out of the meshes of law and should be discouraged and criminal jurisprudence must depart from old canons defeating criminal statutes calculated to protect the public health and the nation’s wealth. Similar view was taken in Kisan Trimbak Kothula v. State of Maharashtra8 . In State of Maharashtra v. Natwarlal Damodardas Soni9 , while dealing with Section 135 of the Customs Act and Rule 126- H(2)(d) of the Defence of India Rules, a narrow construction given by the High Court was rejected on the ground that that will emasculate these provisions and render them ineffective as a weapon for combating gold smuggling. It was further held that the provisions have to be specially construed in a manner which will suppress the mischief and advance the object which the legislature had in view.

19. While we reiterate what this Court has said in Appasaheb that a penal statute has to be construed strictly, in light of Kisan Trimbak and Natwarlal Damodardas, we are of the opinion that penal statute, even if it has to be strictly construed, must be so construed as not to defeat its purport. Harassment of a married woman in an Indian household is a peculiar phenomenon. In most cases it is seen that the husband or the members of his family are never satisfied with what they get as dowry. The wife’s family is expected to keep fulfilling this insatiable demand in some form or the other for some period of time after marriage. Such demands are also fulfilled by parents of the wife for fear of their daughter being ill-treated. The courts of law cannot lose sight of these realities. The presumption under Section 113B of the Indian Evidence Act, 1872 and the presumption under Section 304B of the IPC have a purpose. These are beneficent provisions aimed at giving relief to a woman subjected to cruelty routinely in an Indian household. The meaning to be applied to each word of these provisions has to be in accord with the legislative intent. Even while construing these provisions strictly care will have to be taken to see that their object is not frustrated.

20. As stated by this Court in Appasaheb a demand for meeting financial stringency may not fall within the ambit of the term ‘dowry’ as defined under the Dowry Prohibition Act. Similarly, a demand of money made six months after marriage for setting-up computer business of the husband may not be covered by the term dowry as stated in Vipin Jaiswal. But, in this case, the demand is made to complete and fulfill the demand of dowry made prior to the marriage. The appellant’s grievance was about the inferior and insufficient dowry given by the deceased’s family and after marriage that was sought to be fulfilled by asking for Rs.60,000/- for setting-up appellant’s business or for getting him some job. Insufficient dowry given to the appellant was sought to be supplemented by the demand of Rs.60,000/-. The present case, therefore, stands on a different footing. Section 304B of the IPC is clearly attracted to this case.

21. It was argued that the evidence of the doctors examined by the appellant show that the deceased’s pregnancy was terminated, that she was told that she may not conceive a child again and, that, thereafter, she was in depression. It is argued that, therefore, she committed suicide. It is not possible to accept this submission. Even if the pregnancy of the deceased was terminated, that would not necessarily lead to depression. In fact, DW-3 Dr. C. Vijayendra, who terminated the pregnancy of the deceased stated that it is not necessary that a patient may suffer from depression after termination of pregnancy. Neither DW-1 Dr. Mrs. Iqbal Kaur or DW-2 Dr. Mrs. Ritu Mago stated that the deceased was in depression. They stated that there was no imminent danger to the life of the deceased. No medical record was produced to show that the deceased was in depression and she was taking medicine for the same. There is nothing on record to show that the deceased was told that she will never conceive a child. It is not, therefore, possible to say that the deceased committed suicide because she was in depression. Reliance was placed on a letter, allegedly written by the deceased to her husband’s brother-in-law. It was submitted that this letter does not indicate that the deceased was tortured or harassed. In fact, in this letter the deceased has fondly referred to the members of the appellant’s family. PW-6 Satish Kumar and PW-7 Ashok Kumar have not admitted that this letter was written by their sister. It is also improbable that the deceased would write a letter to the brother-in-law of her husband. Assuming that she wrote such a letter, she would never complain about the ill-treatment meted out to her in her matrimonial house to the brother-in-law of her husband. In any case, even if this letter is held to be genuine, that does not dilute the evidence of PW-6 Satish Kumar and PW-7 Ashok Kumar. This submission, therefore, does not impress us and is rejected.

22. None of the judgments relied upon by the appellant’s counsel help the appellant. They turn on their own facts. In Surinder Kaur the demand was made 2 ½ years prior to the death of the deceased and, therefore, it was held that allegations were not proximate to the death of the deceased hence, Section 304B of the IPC was not attracted. In that case the appellants before this Court were the relatives of Surinder Kumar, the husband of the deceased. There were no direct allegations against them. Considering all these circumstances they were acquitted. This case will have no application to the present case.

23. In Durga Prasad the appellants were convicted under Sections 498A and 304B of the IPC. This Court acquitted them by giving benefit of doubt on the ground that except for certain bald statements made by the witnesses alleging cruelty and harassment to the deceased-wife no other evidence was produced to prove that she committed suicide because of cruelty and harassment. This case is also not applicable to the instant case because here the demand of Rs.60,000/- specifically relates to the appellant, therefore, it cannot be said that qua the appellant there are no specific allegations. Here the harassment and cruelty is inextricably linked to the appellant.

24. In Geeta Mehrotra the High Court had refused to quash the complaint filed against the appellant(1), who was sister-in-law of the complainant and appellant(2), who was brother-in-law of the complainant, under Sections 498A, 323, 504 and 506 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961, on the ground that the question of alleged lack of territorial jurisdiction cannot be decided by it under Section 482 of the Cr.P.C. The High Court left it open to the appellants to move the trial court. While quashing the proceedings this Court took note of the fact that the marriage between the complainant wife and her husband was dissolved by an ex-parte decree of divorce. This Court was of the view that in the circumstances proceedings initiated prior to the divorce decree ought not to be prosecuted further. This Court also took into consideration the fact that there were no specific allegations against the appellants, who were relatives of the husband. It appears that in the complaint there was only a casual reference to the appellants. The instant case stands on different footing because here evidence is adduced and the appellant is convicted. The brothers of the deceased have stated on oath that Rs.60,000/- were demanded for the appellant’s business and for that amount the deceased was harassed and treated with cruelty. That cruelty led to her death in unnatural circumstances.

25. Before closing, the most commonplace argument must be dealt with. In all cases of bride burning it is submitted that independent witnesses have not been examined. When harassment and cruelty is meted out to a woman within the four walls of the matrimonial home, it is difficult to get independent witnesses to depose about it. Only the inmates of the house and the relatives of the husband, who cause the cruelty, witness it. Their servants, being under their obligation, would never depose against them. Proverbially, neighbours are slippery witnesses. Moreover, witnesses have a tendency to stay away from courts. This is more so with neighbours. In bride burning cases who else will, therefore, depose about the misery of the deceased bride except her parents or her relatives? It is time we accept this reality. We, therefore, reject this submission.

26. We are, therefore, of the view that the prosecution has successfully proved its case against the appellant. The trial court and the High Court have concurrently held the appellant guilty of offences punishable under Sections 304B and 498A of the IPC. We have no hesitation in endorsing the view taken by the trial court which is confirmed by the High Court. The appeal is, therefore, dismissed. The appellant is on bail. His bail bonds stand cancelled. He shall surrender to the concerned court.

.…………………………..J.
(Ranjana Prakash Desai)

.…………………………..J.
(Madan B. Lokur)

New Delhi;
November 13, 2013.

Footnote

1 (2004) 4 SCC 109
2 (2010) 9 SCC 73
3 (2012) 10 SCC 741
4 (2013) 3 SCC 684
5 (2000) 5 SCC 207
6 (2007) 9 SCC 721
7 (1976) 3 SCC 684
8 (1977) 1 SCC 300
9 (1980) 4 SCC 669

The post Surinder Singh Vs State of Haryana appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. 362-363 OF 2010
Shankar Kisanrao Khade … Appellant
Versus
State of Maharashtra … Respondent

JUDGMENT

K.S. Radhakrishnan, J.
1. We are in these appeals concerned with a gruesome murder of a minor girl with intellectual disability (moderate) after subjecting her to series of acts of rape by a middle ager, who has now been sentenced to death by the High Court of Bombay.

2. Appellant, Shankar Kisanrao Khade (Accused No.1) and his present wife Mala Shankar Khade (Accused No.2) were charge sheeted, for the offences punishable under Sections 363, 366-A, 376, 302, 201 read with Section 34 IPC, for having, in furtherance of their common intention, kidnapped a minor girl and accused No.1 had committed rape on her several times and committed the murder by strangulation. The Additional Sessions Court in Sessions Case No. 165/2006 convicted the first accused and sentenced him to death under Section 302 IPC, subject to confirmation by the High Court and was also awarded imprisonment for life and to pay a fine of Rs.1,000/- in default to suffer rigorous imprisonment (for short RI) for six months for offences under Section 376 IPC, further seven years RI and to pay a fine of Rs.500/- in default to suffer RI for three months under Section 366-A IPC and five years RI and to pay a fine of Rs.500/- in default to suffer RI for one month for offences punishable under Section 363 IPC, read with Section 304 IPC. The second accused – his wife, was convicted for the offences punishable under Section 363A read with Section 34 IPC and sentenced to suffer RI for five years and to pay a fine of Rs.500/- in default and to suffer RI for one month. The Accused No.2 had already suffered the punishment, hence did not file any appeal against the order of the sessions judge. The accused preferred Criminal Appeal No.512 of 2007 before the High Court and the Court heard the appeal along with Confirmation Case No.1 of 2007. The High Court dismissed the appeal and the reference made by the Sessions Court was accepted and the death sentence was confirmed. Appellant has preferred these two appeals against those orders.

3. The facts giving rise to these appeals are as follows: The deceased, a minor girl, aged about 11 years was living with her grandmother (PW-13) at Gunwant Khandare in Gunwant Maharaj Sansthan at Lakhnwadi. On 20.7.2006, in the evening, both the accused came to Sansthan and stayed there. On seeing the minor girl the accused and his wife offered mango sweets. On the morning of 21.07.2006 also the accused offered her sweets and attracted her attention. At about 12.00 O’clock on the same day, both the accused and his wife induced her to come with them and the girl accompanied them. PW-13, the grandmother of the girl child was informed by some of the ladies residing in the neighbourhood that they saw the girl being taken away by the first accused towards the place called Puja – Dhuni. PW-13 met village Madhan and informed him that fact and also to her son, Ramesh (PW-12), but the girl could not be traced. Facts revealed that the girl was taken by the accused persons to a weekly market at Paratwada and stayed there during night and the first accused had committed the act of rape on her and which was repeated at Gayatri Mandir at Paratwada where they had stayed on 22.7.2006.

4. The accused persons then on 23.07.2006 took the girl to the house of one Ravindra Lavate (PW-8) whom they know earlier. PW8 and the son of the accused were friends. On the date of incident, they stayed there. The accused and the girl were sleeping in the verandah when PW- 8 heard the cries of the minor girl and found the accused committing rape on her which was objected to by him and his wife. The accused then took the girl on a bicycle in the field bearing No.62 of Shantaram Jawarkar at about 9.00 pm. and after committing rape strangulated and murdered her. Vinod Jaswarkar (PW 14) and Sanjay (PW 9) found the dead body of the minor girl from the field. PW 9 approached the police station Asegaon and submitted Ext.48 report about the incident. The Investigating Officer A.P.I. Baviskar (PW18) went to the place of occurrence with the panchas and staff and noticed that the minor girl was raped and murdered. The spot panchnama was prepared in the presence of the staff. Articles found at the spot were seized and Ext.16 inquest panchnama was also prepared and dead body was sent for the post mortem. Dr. Mohan Kewade (PW 3) conducted the post-mortem and submitted the report Ext. 27 dated 25.07.2006.

5. Ramesh (PW12) informed Asegaon police station that his sister’s daughter was missing since 21.7.2006 and her dead body was identified by him. PW3, who conducted the post mortem, came to the conclusion that the deceased was raped and murdered and he had also opined that the deceased was subjected to carnal intercourse and the death was due to asphyxia due to strangulation. Devsingh Baviskar, API (PW18) recorded the statement of several witnesses and arrested the accused and his wife on 2.8.2006 and the charge sheet was filed before the Judge, First Class, Chandur Bazar who later committed the case to the Court of Sessions.

6. The prosecution examined 18 witnesses and relied upon several documents including the experts evidence. No witness was examined on the side of the defence. The Sessions Court found both the accused guilty and convicted the 1st accused and sentenced him with death penalty which was confirmed. We are in these appeals primarily concerned with the question whether the death sentence awarded to Shankar Kisanrao Khade is sustainable or not and whether the case falls under the category of rarest of rare cases warranting capital punishment.

7. We heard Shri. A.K. Talesera, learned counsel appearing for the accused and Ms.Aprajita Singh, learned counsel appearing for the State at length. Shri Talesera submitted that the prosecution had failed to prove beyond reasonable doubt that it was the accused who had committed the offence of rape and murder of the deceased girl. He submitted that PW 8 is not a natural witness and his evidence inspires no confidence. Further, it was pointed out that there was delay in recording the statement of PW8 by the Police and he was a planted witness. Learned counsel also pointed out that if PW 8 had witnessed the accused committing the crime, he would have informed the police at the earliest point of time. Learned counsel also pointed out that even though the wife of PW 8 was also present in the house, she was not examined as a witness. Further it was pointed out that, the test identification parade conducted also suffered from serious infirmities. Further it is also pointed out that there were material inconsistencies, contradictions and omissions which had seriously affected the prosecution version and that the important links in the chain of circumstances that it was the accused who had committed the crime were missing. Learned counsel submitted that in any view of the matter, the case would not fall under the rarest of rare category warranting capital punishment.

8. Ms. Aparjita Singh, learned counsel appearing for the respondent- State submitted that the prosecution has succeeded in proving the guilt of the accused beyond reasonable doubt. Learned counsel submitted that PW 8 is a natural witness and he had no motive or any enmity with the accused so as to rope him in the crime. On the other hand his son and accused’s son were friends. Learned counsel submitted that the evidence adduced in this case proved beyond doubt that it was the accused who had kidnapped the minor girl and committed rape on her and later strangulated her to death. Learned counsel also submitted that the medical evidence clearly establishes that over and above the commission of the offence of rape, the accused had committed the offence of sodomy as well. Further it was pointed out that the accused was aged about 52 years and had committed the ghastly crime of rape on the girl aged between 11 to 12 years having moderate intellectual disability. Facts, according to the counsel, clearly indicate that the deceased was subjected to rape for more than one occasion and later strangulated her to death. Learned counsel placed reliance on an affidavit and submitted that the accused had previous history of committing various crimes. Reference was made to Crime No.18 of 2006, charged against the accused for committing the offence under Sections 457 and 380 of IPC, which was registered at Asegaon police station. Reference was also made to Criminal Case No.264 of 2006 pending before the Judicial Magistrate, First Class, Chandurbazar. Further it was also pointed that the accused was arrayed as accused in Sessions Trial No.52 of 2007 for offences punishable under Section 302 IPC for committing the murder of one lady.

9. Counsel appearing on either side placed reliance on a number of judgments of this Court to bring home their respective contentions. Learned counsel appearing for the accused placed reliance on the judgments of this Court in Bachan Singh v. State of Punjab (1980) 2 SCC 684, Mohd. Chaman vs. State (NCT of Delhi) (2001) 2 SCC 28, Surendra Pal Shivbalakpal vs. State of Gujarat (2005) 3 SCC 127, State of Maharashtra v. Mansingh (2005) 3 SCC 131 and State of Rajasthan v. Kashi Ram (2006) 12 SCC 254.

10. Learned counsel appearing for the prosecution placed reliance on the judgments of this Court in Gurmukh Singh v. State of Haryana (2009) 15 SCC 635, Mohd. Farooq Abdul Gafur and others. v. State of Maharashtra (2010) 14 SCC 641, Sushil Murmu v. State of Jharkhand (2004) 2 SC 338, Shivu and another v. Registrar General, High Court of Karnataka and another (2007) 4 SCC 713, B.A. Umesh v. Registrar General, High Court of Karnataka (2011) 3 SCC 85, Mohd. Mannan Alias Abdul Mannan v. State of Bihar (2011) 5 SCC 317, Sebastian v. State of Kerala (2010) 1 SCC 58, Aloke Nath Dutta and others v. State of West Bengal (2007) 12 SCC 230 and Swamy Shraddananda Alias Murali Manohar Mishra v. State of Karnataka (2007) 12 SCC 288.

11. I have critically and minutely gone through the evidence adduced by the prosecution as well as by the defence and examined whether the prosecution had succeeded in establishing the following circumstances to prove the charges levelled against the accused.

(i) The accused went to Gunwant Maharaj Sansthan at Lakhanwadi on 20.07.2006 and stayed there for one day along with accused No.2 and on 21.7.2006 took the deceased to Dhuni.
(ii) On 22.7.2006 accused took deceased to Gayatri Mandir.
(iii) On 23.7.2006 the accused along with his wife and deceased went to the house of Ravindra Lavate (P.W.8) and stayed there.
(iv) On 23.7.2006 at night the accused committed rape on deceased.
(v) On 23.7.2006 during the night time the accused left on the bicycle with the deceased and on 24.7.2006 he came back to the house of PW8 to take his wife accused No.2.
(vi) False explanation given by accused to PW8 that he had dropped the deceased at Lakhanwadi.
(vii) On 24.7.2006 dead body of the deceased was found in the field of the father of Sanjay Jawarkar (P.W.9).
(viii) Death of deceased was homicidal and that deceased was subjected to sexual intercourse on more than one occasion.
(ix) Deceased was suffering from moderate intellectual disability.
(x) Identification of the accused by the witnesses.
(xi) Spot Punchanama and discovery of articles at the instance of the accused.”

12. Facts in this case indicate that the deceased was aged about 11 years on the date of the incident and was studying in the 4th standard. On the age of the girl, there was some dispute. Certificate Ext.94 issued by the Handicap Board stated the age of girl was 9 years on 6.12.2005. Post-mortem report Ext.27 mentions her age as 14 years and the opinion of the Medical Officer Ext. 29 shows that the approximate age of the deceased was about 14 years. Ramesh PW 12, the maternal uncle stated that her age was between 10-12 years. PW 13 – grandmother of the deceased stated her age was about 10 years. Taking into consideration all the versions of the witnesses and the documents produced, it is safe to conclude that her age was around 11 years.

13. PW 10, PW 11, PW 12 and PW 13 stated how the girl was taken from the house of PW 13 and travelled to difference places, including the mandir. PW 10 who was present at Gunwant Maharaj Sansthan had deposed that on 20.7.2006 at about 7.00 pm accused and his wife came to mandir and stayed in the hall of the mandir and one girl aged about 11 years was also with them. PW 11, who was conducting the hotel business opposite to the mandir, stated that on 20.7.2006 at about 7.00pm one man and woman had come to his hotel and on the next day at about 1.00 pm they came with a girl aged about 10-11 years and went to the mandir and he identified both the accused persons in the court. P.W. 12, the uncle of the deceased stated that on 23.7.2006 his mother had come to his house and informed that the deceased was missing. Further, a watchman of the mandir PW 16 had also deposed that he saw a lady and a man with the girl aged about 12 years coming come to the mandir. Another clinching evidence which conclusively proved that the girl was in the company of the accused and his wife was the evidence of PW 8. PW 8 deposed that his son and Santosh, son of the accused, were friends and he used to go to the house of the accused. PW 8 deposed that, on 19.6.2006, the accused and his wife had stayed in his house stating that they had come to meet one of the relatives who had been admitted in a nearby hospital. On 23.7.2006, again the accused along with his wife came to the house of PW 8 on a bicycle along with a minor girl who was wearing a white shirt and green skirt. The accused and his wife requested that they be permitted to stay during night which PW 8 agreed. The accused was sleeping in the verandah during night along with the girl. PW 8 heard the girl weeping and became curious and when it was found that the accused was having sexual intercourse with the minor girl PW 8 asked the accused and his wife to leave the place. Accused then took away the girl on his bicycle leaving his wife in the house of PW8.

14. The above facts would clearly establish that the girl was last seen with the accused. PW8 evidence discloses that the girl and the accused were seen together at a point of time in proximity with the time and date of the commission of the offence. Last seen theory was successfully established by the prosecution beyond any reasonable doubt. This Court in State of U.P. v. Satish (2005) 3 SCC 114 has held that the last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found is so small that possibility of any person other than the accused being the author of the crime is impossible. This test, in my view, is fully satisfied in the instant case. Reference may also be made to the judgment of this Court in Ramreddy Rajesh Khanna Reddy and Another v. State of Andhara Pradesh (2006) 10 SCC 172, Kusuma Ankama Rao v. State of Andhra Pradesh (2008) 13 SCC 257 and Manivel and Others v. State of Tamil Nadu.

15. PW8 stated on the next day of the incident that the accused came alone to his house without the girl and left the house along with his wife. Evidence of PW 8 is very crucial and there is nothing to show that he had any enmity or grudge against the accused so as to implicate him. PW8 had no difficulty in identifying the accused since he knew them earlier.

16. Further, apart from the evidence of witnesses discussed above, another crucial evidence is the medical evidence. PW 3, Dr. Mohan Kewade, who had conducted the post-mortem on the dead body of the deceased, noticed the following external injuries:

(i) Labia Majora and Minora swelled, tear of size two inch x ½ inch over interior part of labia Majora, extending to vagina present with clots of blood.
(ii) Anal tear of size 1 inch x ½ inch posteriorly present swelling of anal opening and dilation of anal opening about 2 inch ween.
(iii) Bruises of size 3 cm x 2 cm over both side of neck present about three in number on each side.
(iv) Bruise of size 2 cm x 2 cm over medial surface thigh and thigh folds present.
(v) Perianal bruises of size 1 cm x 1cm about three in number present, probable age of injuries are about 2 to 3 days.

On internal examination he found following injuries:
i) Injuries over larynx Trachea and bronchi; Evidence of fracture of upper two tracheal rings and larynx present.
ii) Organs of generation.
iii) Tear of cervix about 3 cm interiorly present with echoymetic.”

17. Medical evidence clearly indicates that the cause of the death was asphyxia due to strangulation and though there was clear evidence of carnal intercourse, the accused was not charged for that offence. On a close scrutiny of the evidence, it can safely be concluded that the deceased girl was subjected to the acts of rape for more than one occasion.

18. I have extensively, critically and minutely gone through the evidence adduced in this case and I have no doubt in mind that it was the accused who had committed the crime. The standard of proof required to convict a person on circumstantial evidence is well established by a series of judgments of this Court. The circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The Sessions Court as well as the High Court has correctly appreciated the evidence and documents adduced in this case and found that the guilt of the accused is proved beyond reasonable doubt with which we fully concur.

19. The only question that now remains to be decided is whether this case falls in the category of rarest of rare cases, justifying capital punishment. This Court in several Judgments has awarded capital punishment, where rape and murder have been committed on a minor girl, after striking a balance between the aggravating and mitigating circumstances. Several other factors like the young age of the accused, the possibility of reformation, lack of intention to murder consequent to rape etc. have also gone into the judicial mind.

20. In Bachan Singh (supra), while determining the constitutional validity of the death penalty, this Court also examined the sentencing procedure embodied in sub-section (3) of Section 354 Cr.P.C. and held as follows:

“While considering the question of sentence to be imposed for the offence of murder under Section 302 of the Penal Code, the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence.”

21. In Machhi Singh and others v. State of Punjab (1983) 3 SCC 470 this Court held that case fell in the category of rarest of rare cases calling for capital punishment since the victim of murder was an innocent child who could not have or had not provided even an excuse, much less a provocation for murder or the murder was committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner which arose intense and extreme indignation of the community. The motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof are factors which normally weigh with the court in awarding the death sentence terming it as the rarest of the rare cases. Reference to few judgments of this Court where death penalty has been awarded for rape and murder of minor girls and judgments, where it has been commuted may be apposite.

22. DEATH PENALTY AWARDED

1. Nathu Garam v. State of Uttar Pradesh [(1979 ) 3 SCC 366]

This Court in that case upheld the death sentence awarded by the trial Court, confirmed by the High Court, for causing death of a 14 year old girl by a person aged 28 years after luring her into the house for committing criminal assault. Judgment was delivered prior to Bachan Singh (supra), therefore, the mitigating circumstances concerning the criminal were not seen addressed. Stress was more on “crime test”.

2. Jumman Khan v. State of Uttar Pradesh [(1991) 1 SCC 752]

This Court, in this case, was hearing a writ petition moved by a convict, not to extend the death sentence. Writ Petition was dismissed after referring to the order passed by this Court in S.L.P. (Criminal) No. 558 of 1986, confirming the death sentence, noticing the degree of criminality and the reprehensive and gruesome manner the crime was committed on a six year old child. “Criminal test” is not prima facie seen satisfied, but only the “crime test”.

3. Dhananjoy Chatterjee v. State of West Bengal [(1994) 2 SCC 220]

This Court dealt with a case of rape and murder of a young girl of about 18 years. The Court opined that a real and abiding concern for the dignity of human life is required to be kept in mind by courts while considering the confirmation of the sentence of death but a cold-blooded and pre-planned murder without any provocation, after committing rape on an innocent and defenceless young girl of 18 years exists in a rarest of rare cases which calls for no punishment other than capital punishment.

Paras 14 and 15 of the judgment would indicate that this Court was more on crime test, not on criminal test, which are extracted below:

“14. In recent years, the rising crime rate-particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished, thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system’s credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences, in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an over-all view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration.

15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”

Prima facie, it is seen that criminal test has not been satisfied, since there was not much discussion on the mitigating circumstances to satisfy the ‘criminal test’.

4. Laxman Naik v. State of Orissa [(1994) 3 SCC 381]

This Court again confirmed the death sentence on an accused for the offence of rape followed by murder of 7 year old girl by her own uncle. The Court opined that the accused seems to have acted in a beastly manner. After satisfying his lust, he thought that the victim might expose him for the commission of offence on her to her family members and others, the accused with a view to screen the evidence of the crime, put an end to the life of that innocent girl. The Court noticed how diabolically the accused had conceived his plan and brutally executed it in such a calculated cold blooded and brutal murder of a very tender age girl after committing rape on her which, according to the Court, undoubtedly falls in the rarest of rare case attracting no punishment other than capital punishment.

In this case aggravating circumstances, that is, “crime test” is seen fully satisfied, but on mitigating circumstances (criminal test), this Court held as follows:

“26. This brings us to the question of sentence to be imposed upon the appellant for the offences for which he has been found guilty by the two Courts below as well as by us discussed above. In this connection it may be pointed out that this Court in the case of Bachan Singh v. State of Punjab (1980) 2 SCC 684: 1980 SCC (Cri) 580 while discussing the sentencing policy, also laid down norms indicating the area of imposition of death penalty taking into consideration the aggravating and mitigating circumstances of the case and affirmed the view that the sentencing discretion is to be exercised judicially on well recognized principles, after balancing all the aggravating and mitigating circumstances of the crime guided by the Legislative Policy discernible from the provision contained in Sections 253(2) and 354(3) of the CrPC. In other words, the extreme penalty can be inflicted only in gravest cases of the extreme culpability and in making choice of the sentence, in addition to the circumstances of the offender also. Having regard to these principles with regard to the imposition of the extreme penalty it may be noticed that there are absolutely no mitigating circumstances in the present case. On the contrary the facts of the case disclose only aggravating circumstances against the appellant which we have to some extent discussed above and at the risk of repetition shall deal with that again briefly.

27. The hard facts of the present case are that the appellant Laxman is the uncle of the deceased and almost occupied the status and position that of guardian. Consequently the victim who was aged about 7 years must have reposed complete confidence in the appellant must have believed in his bona fide also and it was on account of such a faith and belief that she acted upon the command of the appellant in accompanying him under the impression that she was being taken to her village unmindful of the pre-planned unholy designs of the appellant. The victim was totally a helpless child there being no one to protect her in the desert where she was taken by the appellant misusing his confidence to fulfill his just. It appears that the appellant had pre-planned to commit the crime by resorting to diabolical methods and it was with that object that he took the girl to a lonely place to execute his dastardly act.”

Both the tests “crime test” and “criminal test”, it is seen, have been satisfied against the accused for awarding capital punishment.

5. Kamta Tiwari v . State of M.P . [(1996) 6 SCC 250]

This Court dealt with a case of rape followed by murder of a 7 year old girl. Evidence disclosed that the accused was close to the family of the father of the deceased and the deceased used to call him “uncle”. This Court noticed the closeness to the accused and the accused encouraged her to go to the grocery shop where the girl was kidnapped by him and was subjected to rape and later strangulated to death throwing the dead body in a well. This Court described the murder as gruesome and barbaric and pointed out that a person, who was in a position of a trust, had committed the crime and the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuaded this Court to hold that case as a rarest of rare cases where death sentence was warranted. The Court was following the guidelines laid down in Machhi Singh (supra), held as follows:

“8. Taking an overall view of all the facts and circumstances of the instant case in the light of the above propositions we are of the firm opinion that the sentence of death should be maintained. In vain we have searched for mitigating circumstances – but found aggravating circumstances aplenty. The evidence on record clearly establishes that the appellant was close to the family of Parmeshwar and the deceased and her siblings used to call him ‘Tiwari uncle’. Obviously her closeness with the appellant encouraged her to go to his shop, which was near the saloon where she had gone for a haircut with her father and brother, and ask for some biscuits. The appellant readily responded to the request by taking her to the nearby grocery shop of Budhsen and handing over a packet of biscuits apparently as a prelude to his sinister design which unfolded in her kidnapping, brutal rape and gruesome murder – as the numerous injuries on her person testify; and the finale was the dumping of her dead body in a well. When an innocent hapless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a ‘rarest of rare’ cases where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society’s a abhorrence of such crimes.”

Court was giving thrust on crime test rather than criminal test against the accused.

6. Molai and another v. State of M.P . [(1999) 9 SCC 581]

A three-Judge Bench of this Court justified death sentence in a case where a 16 year old girl, preparing for her Tenth Standard Examination was raped and strangulated to death. The Court noticed the gruesome manner in which rape was committed and the way in which she was strangulated to death and the dead body was immersed in the septic tank. On sentence, the Court held as follows:

36. We have very carefully considered the contentions raised on behalf of the parties. We have also gone through various decisions of this Court relied upon by the parties in the courts below as well as before us and in our opinion the present case squarely falls in the category of one of the rarest of rare cases, and if this be so, the courts below have committed no error in awarding capital punishment to each of the accused. It cannot be overlooked that Naveen, a 16 year old girl, was preparing for her 10th examination at her house and suddenly both the accused took advantage of she being alone in the house and committed a most shameful act of rape. The accused did not stop there but they strangulated her by using her under-garment and thereafter took her to the septic tank along with the cycle and caused injuries with a sharp edged weapon. The accused did not even stop there but they exhibited the criminality in their conduct by throwing the dead body into the septic tank totally disregarding the respect for a human dead body. Learned Counsel for the accused (appellants) could not point any mitigating circumstances from the record of the case to justify the reduction of sentence of either of the accused. In a case of this nature, in our considered view, the capital punishment to both the accused is the only proper punishment and we see no reason to take a different view than the one taken by the courts below.”

The three-Judge Bench, it is seen, has applied both the tests Crime test as well as the Criminal test and found that the case falls in the category of rarest of rare cases.

7. Bantu v. State of Uttar Pradesh [(2008) 11 SCC 113]

This Court confirmed death sentence in a case where a minor girl of 5 years was raped and murdered. This Court, following the principles laid down in Bachan Singh, pointed out that when the victim of the murder is an innocent child or a helpless woman or old or infirm person or a person vis-à-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community, it is a vital factor justifying award of capital punishment. In this judgment also, this Court stressed on drawing of a balance sheet of mitigating and aggravating circumstances, following the judgment in Devender Pal Singh v. Government of NCT of Delhi (2002) 5 SCC 234. Court was applying the “balancing test”, to award capital sentence.

8. Shivaji @ Dadya Shankar Alhat v. The State of Maharashtra [(2008) 15 SCC 269]

This was a case where the accused, a married man having three children, was known to the family of the deceased. The Court noticed the horrendous manner in which the girl aged 9 years was done to death after ravishing her. The Court awarded capital punishment. The Court, in this case, took the view that mitigating and aggravating circumstances have to be balanced. Here also the test applied was the “balancing test” to award capital punishment.

9. Mohd. Mannan @ Abdul Mannan v. State of Bihar [(2011) 5 SCC 317]

This was a case where a minor girl aged 7 years was kidnapped, raped and murdered. Court noticed how the accused had won the trust of that innocent girl and the gruesome manner in which she was subjected to rape and then strangulated her to death. The accused was aged 42-43 years. The Court held that he would be a menace to society and would continue to be so and could not be reformed. The Court awarded death sentence. The Court, in this case, held that a balance sheet is to be prepared while considering the imposition of death sentence. Here also the test applied was “balancing test” to award capital punishment.

10. Rajendra Pralhadrao Wasnik v. State of Maharashtra , (2012) 4 SCC 37

This was a case of rape and murder of a 3 years old child by a married man of 31 years. Court noticed the brutal manner in which the crime was committed and the pain and agony undergone by the minor girl. The Court confirmed the death sentence awarded. The Court elaborately discussed when the aggravating and mitigating circumstances to be taken note of before awarding sentence and what are the principles to be followed, while awarding death sentence. The Court then held as follows:

“37. When the Court draws a balance-sheet of the aggravating and mitigating circumstances, for the purposes of determining whether the extreme sentence of death should be imposed upon the accused or not, the scale of justice only tilts against the accused as there is nothing but aggravating circumstances evident from the record of the Court. In fact, one has to really struggle to find out if there were any mitigating circumstances favouring the accused. Another aspect of the matter is that the minor child was helpless in the cruel hands of the accused. The accused was holding the child in a relationship of ‘trust-belief’ and ‘confidence’, in which capacity he took the child from the house of PW2. In other words, the accused, by his conduct, has belied the human relationship of trust and worthiness.”

Court in this case also applied the “balancing test” to award capital punishment.

23. CASES IN WHICH DEATH PENALTY COMMUTED

1. Kumudi Lal v. State of U.P. [(1994) 4 SCC 108]

It was a case where a 14 year girl was raped and killed by strangulation. The Court accepted the brutality of the crime, however commuted death penalty to life imprisonment. The Court noticed that the evidence did not indicate the girl was absolutely unwilling but rather showed that she initially permitted the accused to take some liberties with her but later expressed her unwillingness. Treating the same as a mitigating factor, death sentence was commuted to that of life imprisonment. ‘Criminal test’ was applied and was found not fully satisfied since some mitigating circumstances were found to be in favour of the accused so as to avoid death sentence.

2. Raju v. State of Haryana [(2001) 9 SCC 50]

This Court commuted death sentence to life imprisonment in a case where a girl of 11 years was raped and murdered. Court noticed that the accused had no intention to murder her, but on the spur of the moment, without any premeditation, he gave two brick blows which caused the death. Further, it was also found that the accused had no previous criminal record or would be a threat to the society. ‘Criminal test’ was applied and found not fully satisfied some mitigating circumstances were found to be in favour of the accused so as to avoid death sentence.

3. Bantu alias Naresh Giri v. State of M.P . [(2001) 9 SCC 615]

This Court commuted death sentence to that of life imprisonment in a case where a girl of 6 years was raped and murdered by a boy of less than 22 years. Though, this Court found that the act was heinous and required to be condemned, but it could not be said to be one of the rarest of rare category. The accused did not require to be eliminated from the society. ‘Criminal test’ was applied and found some circumstances favouring the accused so as to avoid death sentence.

4. State of Maharashtra v. Suresh [(2000) 1 SCC 471]

This Court in that case commuted the death sentence to life imprisonment where a girl of 4 years old was raped and murdered. Though this Court felt that the case was perilously near the region of rarest of the rare cases, but refrained from imposing extreme penalty. “Criminal test” was applied and narrowly escaped death sentence.

5. Amrit Singh v. State of Punjab [AIR 2007 SC 132]

This Court commuted death sentence to that of life imprisonment in a case, where a 7-8 years old girl was raped and murdered by the accused aged 31 years. The Court noticed the manner in which the deceased was raped, it was brutal, but held it could have been a momentary lapse on the part of the accused, seeing a lonely girl at a secluded place and there was no pre-meditation for commission of the crime. “Criminal test” it is seen, has been applied in favour of the accused to avoid death sentence.

6. Rameshbhai Chandubhai Rathod v. The State of Gujarat [(2011) 2 SCC 764]

This Court commuted death sentence to life imprisonment of the accused committing rape and murder of a girl of 8 years. It was noticed that the accused at the time of the commission of crime was 27 years and possibility of reformation could not be ruled out. “Criminal test” was applied considering the age of the accused and possibility of reformation saved the accused from death penalty.

7. Surendra Pal Shivbalak v. State of Gujarat [(2005) 3 SCC 127]

This Court commuted death sentence to that of life imprisonment in a case where the accused aged 36 years had committed rape and murder of a minor girl. This Court noticed at the time of occurrence, the accused had no previous criminal record and held would not be a menace to the society in future. “Criminal test” was applied and absence of previous record was considered as a circumstance to avoid death sentence.

8. Amit v. State of Maharashtra [(2003) 8 SCC 93]

This Court commuted death sentence to life imprisonment in a case where the accused aged 28 years had raped and murdered a girl of 11-12 years. This Court noticed that the accused had no previous criminal track record and also there was no evidence that he would be a danger to the society in future. “Criminal test” was applied, absence of previous track record and danger to the society were considered to avoid death sentence.

24. The list of cases mentioned above, wherein this Court had awarded death sentence and cases where this Court had commuted death sentence, is not exhaustive but only illustrative. This bench in Sangeeta & Ors v. State of Haryana (2013) 2 SCC 452 noticed that the circumstances of the criminal referred to in Bachan Singh appeared to have taken a bit of back seat in the sentencing process and held despite Bachan Singh, the ‘particular crime’ continues to play a more important role than the ‘crime and criminal’. In conclusion, we have said, inter alia, as follows:

“1. The application of aggravating and mitigating circumstances needs a fresh look. This Court has not endorsed that approach in Bachan Singh. In any event, there is little or no uniformity in the application of this approach.

2. Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review.

3. In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judge-centric sentencing rather than principled sentencing.

4. The Constitution Bench of this Court has not encouraged standardization and categorization of crimes and even otherwise it is not possible to standardize and categorize all crimes.”

25. In Bachan Singh and Machhi Singh cases, this Court laid down various principles for awarding sentence:

“Aggravating circumstances – (Crime test)

1. The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.

2. The offence was committed while the offender was engaged in the commission of another serious offence.

3. The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.

4. The offence of murder was committed for ransom or like offences to receive money or monetary benefits.

5. Hired killings.

6. The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.

7. The offence was committed by a person while in lawful custody.

8. The murder or the offence was committed, to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 Code of Criminal Procedure.

9. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.

10. When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.

11. When murder is committed for a motive which evidences total depravity and meanness.

12. When there is a cold blooded murder without provocation.

13. The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.

Mitigating Circumstances: (Criminal test)

1. The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.

2. The age of the accused is a relevant consideration but not a determinative factor by itself.

3. The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.

4. The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.

5. The circumstances which, in normal course of life, would render such a behavior possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behavior that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.

6. Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.

7. Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though prosecution has brought home the guilt of the accused.”

26. In Santosh Kumar Satishbhushan Bariyar vs. State of Maharashtra (2009) 6 SCC 498, this Court held the nature, motive, and impact of crime, culpability, quality of evidence, socio economic circumstances, impossibility of rehabilitation and some of the factors, the Court may take into consideration while dealing with such cases.

27. In Sangeeta’s case this Bench has held that there is no question of balancing the above mentioned circumstances to determine the question whether the case falls into the rarest of rare cases category because the consideration for both are distinct and unrelated. In other words the “balancing test” is not the correct test in deciding whether capital punishment be awarded or not.

28. Aggravating Circumstances as pointed out above, of course, are not exhaustive so also the Mitigating Circumstances. In my considered view that the tests that we have to apply, while awarding death sentence, are “crime test”, “criminal test” and the R-R Test and not “balancing test”. To award death sentence, the “crime test” has to be fully satisfied, that is 100% and “criminal test” 0%, that is no Mitigating Circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society no previous track record etc., the “criminal test” may favour the accused to avoid the capital punishment. Even, if both the tests are satisfied that is the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the Rarest of Rare Case test (R-R Test). R-R Test depends upon the perception of the society that is “society centric” and not “Judge centric” that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the Court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged, suffering from physical disability, old and infirm women with those disabilities etc.. Examples are only illustrative and not exhaustive. Courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges.

29. We have to apply the above tests in the present case and decide whether the courts below were justified in awarding the death sentence.

Enormity of the Crime and execution thereof (Crime Test)

30. Victim was aged 11 years, on the date of the incident, a school going child totally innocent, defenceless and having moderate intellectual disability. Ex. P-4 was a certificate issued by the President of the Handicap Board General Hospital, Amravati which disclosed that the girl was physically handicapped and was having moderate mental retardation. Evidence of PW 10, PW 12 and PW13 also corroborates the fact that she was a minor girl with moderate intellectual disability, an aggravating circumstance which goes against the accused. Vulnerability of the victim with moderate intellectual disability is an aggravating circumstance. The accused was a fatherly figure aged 52 years.

31. Dr. Kewade – PW3, who conducted the post mortem, had deposed as well as stated in the report the ghastly manner in which the crime was executed. Rape was committed on more than one occasion and the manner in which rape as well as murder was executed had been elaborately discussed in the oral evidence as well as in report which we do not want to reiterate. The action of accused, in my view, not only was inhuman but barbaric. Ruthless crime of repeated actions of rape followed by murder of a young minor girl who was having moderate intellectual disability, shocks not only the judicial conscience, but the conscience of the society.

32. In my view, in this case the crime test has been satisfied fully against the accused.

Criminal Test

33. Let us now examine whether “Criminal Test’ has been satisfied. The accused was aged 52 years at the time of incident, a fatherly figure for the minor child. The accused is an able bodied person has seen the world and is the father of two children. The accused repeatedly raped the girl for few days, ultimately strangulated her to death. Intellectually challenged minor girls will not be safe in our society if the accused is not given adequate punishment. Considering the age of the accused, a middle ager of 52 years, reformation or rehabilitation is practically ruled out. In the facts and circumstances of the case, in my view, criminal test has been fully satisfied against the accused and I do not find any mitigating factor favouring the accused. The only mitigating circumstance stated was that the accused is having two sons aged 26 and 27 years and are dependent on him, which in my view, is not a mitigating circumstance and the “criminal test” is fully satisfied against the accused. Both the crime test and criminal test are, therefore, independently satisfied against the accused.

34. Let us now apply the R-R Test. I have critically and minutely gone through the entire evidence and I am of the view that any other punishment other than life imprisonment would be completely inadequate and would not meet the ends of justice.

35. Remember, the victim was a minor girl aged 11 years, intellectually challenged and elders like the accused have an obligation and duty to take care of such children, but the accused has used her as a tool to satisfy his lust. Society abhors such crimes which shocks the conscience of the society and always attracts intense and extreme indignation of the community. R-R Test is fully satisfied against the accused, so also the Crime Test and the Criminal Test”. Even though all the above mentioned tests have been satisfied in this case, I am of the view that the extreme sentence of Death penalty is not warranted since one of the factors which influenced the High Court to award death sentence was the previous track record of the accused.

Previous Criminal Record of the Accused

36. The Investigating Officer, during the course of hearing of the criminal appeal by the High Court, filed an affidavit dated 11.4.2008 stating that the accused was also figured as an accused in Crime No. 165/92 registered at Police Station Borgaon Manju, District Akola for the offence under Section 302 IPC on the allegation that he caused murder of his wife Chanda by assaulting her with stick on 4.10.1993 and that Sessions Trial No. 52/07 was pending before the Sessions Court, Akola. Further, it was also stated that another Crime No. 80/06 was also registered against the accused at Chandur Bazar Police Station for an offence under Sections 457 and 380 IPC. The High Court was of the view that the accused had not disclosed those facts before the Court and held as follows:

“….However, fact remains that the accused has not disputed the pendency of these proceedings against him. Moreover, they cannot be said to be irrelevant for the purpose of deciding the appropriate sentence which deserves to be imposed on the appellant. We, therefore, deem it appropriate to consider the pendency of these cases as a circumstance against the accused…..”

37. I find it difficult to endorse this view of the High Court. In my view, the mere pendency of criminal cases as such cannot be an aggravating factor to be taken note of while granting appropriate sentence. In Gurmukh Singh v. State of Haryana (2009) 15 SCC 635, this Court opined that criminal background and adverse history of the accused is a relevant factor. But, in my view, mere pendency of cases, as such, is not a relevant factor. This Court in Mohd. Farooq Abdul Gafur v. State of Maharashtra (2010) 14 SCC 641 dealt with a similar contention and Justice S. B. Sinha, while supplementing the leading judgment, stated as follows:

“178. In our opinion the trial court had wrongly rejected the fact that even though the accused had a criminal history, but there had been no criminal conviction against the said three accused. It had rejected the said argument on the ground that a conviction might not be possible in each and every criminal trial……”

38. Therefore, the mere pendency of few criminal cases as such is not an aggravating circumstance to be taken note of while awarding death sentence unless the accused is found guilty and convicted in those cases. High Court was, therefore, in error in holding that those are relevant factors to be considered in awarding appropriate sentence.

39. But what disturbed me the most is that the police after booking the accused for offence under Section 377 IPC failed to charge sheet him, in spite of the fact the medical evidence had clearly established the commission of carnal intercourse on a minor girl with moderate intellectual disability. Dr. Kewade – PW3, who conducted the post mortem, had clearly spelt out the facts of sodomy in his report as well as in his deposition. Prosecuting agency has also failed in his duty to point out the same to the court that a case had been made out under Section 377 IPC.

Non-reporting the offence of sexual assault

40. Let me now refer to another disturbing trend in our society that is non-reporting of sexual assault on minor children, which has happened in this case as well. Ravindra Lavate (PW8), in his deposition, has stated as follows:

“I heard that the girl was weeping. I, therefore, come in Verandah and observed that Accused No.1 was lying on the body of the said girl. I observed it in the electric light. I also observed that Accused No.1 was committing sexual intercourse with the girl. I and my wife asked Accused No.1 as to what he was doing. I asked Accused No.1 Shankar to take out the said girl. Accused No.1 thereafter took away the said girl on cycle.”

41. PW8 has admitted in his cross-examination that he had not reported the said fact to the police, possibly due to the reason that there was no clear cut legislative provision casting an obligation on him to report to the J.J. Board or to the S.J.P.U. dealing with sexual offences towards children after having witnessed the incident. Is there not a duty cast on every citizen of this country if they witness or come to know any act of sexual assault or abuse on a minor child to report the same to the police or to the J.J. Board or can they keep mum so as to screen the culprit from legal punishment?

42. Article 15 (3) of the Constitution of India confers upon the State powers to make special provision for children. Article 39 inter alia provides that the State shall, in particular, direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity.

43. The United Nations Convention on the Rights of Children, rectified by India on 11th December 1992, requires the State Parties to undertake all appropriate national, bilateral and multilateral measures to prevent the inducement or coercion of child to engage in any unlawful sexual activity, the exploitative use of children in prostitution or other unlawful sexual practices etc. Articles 3(2) and 34 of the Convention have placed a specific duty on the State to protect the child from all forms of sexual exploitation and abuse. National Crime Records Bureau (NCRB) 2011 report specifically deals with the statistics of rape victims which is as follows:

Rape Victims

44. There were 24,270 victims of Rape out of 24,206 reported Rape cases in the country. 10.6% (2,582) of the total victims of Rape were girls under 14 years of age, while 19.0% (4,646 victims) were teenaged girls (14-18 years). 54.7% (13,264 victims) were women in the agegroup 18-30 years. However, 15.0% (3,637 victims) were in the age group of 30-50 years while 0.6% (141 victims) was over 50 years of age.

45. Offenders were known to the victims in as many as in 22,549 (94.2%) cases. Parents / close family members were involved in 1.2% (267 out of 22,549 cases) of these cases, neighbours were involved in 34.7% cases (7,835 out of 22,549 cases) and relatives were involved in 6.9% (1,560 out of 22,549 cases) cases.

46. A total of 7,112 cases of child rape were reported in the country during 2011 as compared to 5,484 in 2010 accounting for an increase of 29.7% during the year 2011. Madhya Pradesh has reported the highest number of cases (1,262) followed by Uttar Pradesh (1088) and Maharashtra (818). These three States altogether accounted for 44.5% of the total child rape cases reported in the country.

Crimes against Children in the country and % variation in 2011 over 2010

47. The Department of Women and Child Development conducted a study and prepared a Draft of the Offences against Children Bill, 2005 which was further discussed with the National Commission for Protection of Child Rights (NCPCR).

48. Parliament later passed the Act titled “The Protection of Children from Sexual Offences Act, 2012. (Act 32 of 2012) which received the assent of the President on 19th June, 2012. The Act provides for reporting of sexual offences and the punishment for failure to report or record punishment for filing false complaint and/or false information. The Act also provides for a Justice Delivery System for child victims and few other provisions to safeguard the interest of children.

49. Chapter V of the Act deals with the Procedure of reporting of cases. Sec. 19(1) deals with the manner in which the case has to be reported to the Special Juvenile Police Unit or local police. Section 20 deals with the obligation of media, studio and photographic facilities to report cases and the same reads as follows:

“20. Any personnel of the media or hotel or lodge or hospital or club or studio or photographic facilities, by whatever name called, irrespective of the number of persons employed therein, shall, on coming across any material or object which is sexually exploitative of the child (including pornographic, sexuallyrelated or making obscene representation of a child or children) through the use of any medium, shall provide such information to the Special Juvenile Police Unit, or to the local police, as the case may be.

Section 21 prescribes punishment for failure to report or record a case, which reads as follows:

“21. (1) Any person, who fails to report the commission of an offence under sub-section (1) of section 19 or section 20 or who fails to record such offence under sub-section (2) of section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both.

(2) Any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub-section (1) of section 19 in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine.”

50. I may also point out that, in large numbers of cases, children are abused by persons known to them or who have influence over them. Criminal Courts in this country are galore with cases where children are abused by adults addicted to alcohol, drugs, depression, marital discord etc. Preventive aspects have seldom been given importance or taken care of. Penal laws focus more on situations after commission of offences like violence, abuse, exploitation of the children. Witnesses of many such heinous crimes often keep mum taking shelter on factors like social stigma, community pressure, and difficulties of navigating the criminal justice system, total dependency on perpetrator emotionally and economically and so on. Some adult members of family including parents choose not to report such crimes to the police on the plea that it was for the sake of protecting the child from social stigma and it would also do more harm to the victim. Further, they also take shelter pointing out that in such situations some of the close family members having known such incidents would not extend medical help to the child to keep the same confidential and so on, least bothered about the emotional, psychological and physical harm done to the child. Sexual abuse can be in any form like sexually molesting or assaulting a child or allowing a child to be sexually molested or assaulted or encouraging, inducing or forcing the child to be used for the sexual gratification of another person, using a child or deliberately exposing a child to sexual activities or pornography or procuring or allowing a child to be procured for commercial exploitation and so on.

51. In my view, whenever we deal with an issue of child abuse, we must apply the best interest child standard, since best interest of the child is paramount and not the interest of perpetrator of the crime. Our approach must be child centric. Complaints received from any quarter, of course, have to be kept confidential without casting any stigma on the child and the family members. But, if the tormentor is the family member himself, he shall not go scot free. Proper and sufficient safeguards also have to be given to the persons who come forward to report such incidents to the police or to the Juvenile Justice Board.

52. The conduct of the police for not registering a case under Section 377 IPC against the accused, the agony undergone by a child of 11 years with moderate intellectual disability, non-reporting of offence of rape committed on her, after having witnessed the incident either to the local police or to the J.J. Board compel us to give certain directions for compliance in future which, in my view, are necessary to protect our children from such sexual abuses. This Court as parens patriae has a duty to do so because Court has guardianship over minor children, especially with regard to the children having intellectual disability, since they are suffering from legal disability. Prompt reporting of the crime in this case could have perhaps, saved the life of a minor child of moderate intellectual disability.

53. President of India on 3rd February, 2013 promulgated an ordinance titled “The Criminal Law (Amendment) Ordinance, 2013, further to amend the Code of Criminal Procedure Code, 1973, Indian Evidence Act, 1872 and the Indian Penal Code, 1860. By the ordinance Sections 375, 376, 376-A, 376-B, 376-C and 376-D of the Code have been substituted by new Sections. The word “rape” has been replaced by the word “sexual assault”. Section 375 has also clarified that lack of physical resistance is immaterial for constituting an offence. A new Section 376-A has been added which reads as follows:

376A. Whoever, commits an offence punishable under sub-section (I) or sub-section (2) of Section 376 and in the course of such commission inflicts an injury which causes the death of the person or causes the person to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years=, but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life, or with death”.

Therefore a person, who commits an offence punishable under subsection (1) and sub-section (2) of Section 376 and causes death shall be punishable with rigorous imprisonment for a term which shall not be less than twelve years but which my extend to imprisonment for life, which shall be mean the remainder of that periods natural life or with death.

54. Considering the entire facts and circumstances of the case, I am inclined to convert death sentence awarded to the accused to rigorous imprisonment for life and that all the sentences awarded will run consecutively.

55. I my opinion, the case in hand calls for issuing the following directions to various stake-holders for due compliance:

(1) The persons in-charge of the schools/educational institutions, special homes, children homes, shelter homes, hostels, remand homes, jails etc. or wherever children are housed, if they come across instances of sexual abuse or assault on a minor child which they believe to have committed or come to know that they are being sexually molested or assaulted are directed to report those facts keeping upmost secrecy to the nearest S.J.P.U. or local police, and they, depending upon the gravity of the complaint and its genuineness, take appropriate follow up action casting no stigma to the child or to the family members.

(2) Media personals, persons in charge of Hotel, lodge, hospital, clubs, studios, photograph facilities have to duly comply with the provision of Section 20 of the Act 32 of 2012 and provide information to the S.J.P.U., or local police. Media has to strictly comply with Section 23 of the Act as well.

(3) Children with intellectual disability are more vulnerable to physical, sexual and emotional abuse. Institutions which house them or persons in care and protection, come across any act of sexual abuse, have a duty to bring to the notice of the J.J. Board/S.J.P.U. or local police and they in turn be in touch with the competent authority and take appropriate action.

(4) Further, it is made clear that if the perpetrator of the crime is a family member himself, then utmost care be taken and further action be taken in consultation with the mother or other female members of the family of the child, bearing in mind the fact that best interest of the child is of paramount consideration.

(5) Hospitals, whether Government or privately owned or medical institutions where children are being treated come to know that children admitted are subjected to sexual abuse, the same will immediately be reported to the nearest J.J. Board/SJPU and the JJ Board, in consultation with SJPU, should take appropriate steps in accordance with the law safeguarding the interest of child.

(6) The non-reporting of the crime by anybody, after having come to know that a minor child below the age of 18 years was subjected to any sexual assault, is a serious crime and by not reporting they are screening offenders from legal punishment and hence be held liable under the ordinary criminal law and prompt action be taken against them, in accordance with law.

(7) Complaints, if any, received by NCPCR, S.C.P.C.R. Child Welfare Committee (CWC) and Child Helpline, NGO’s or Women’s Organizations etc., they may take further follow up action in consultation with the nearest J.J. Board, S.J.P.U. or local police in accordance with law.

(8) The Central Government and the State Governments are directed to constitute SJPUs in all the Districts, if not already constituted and they have to take prompt and effective action in consultation with J. J. Board to take care of child and protect the child and also take appropriate steps against the perpetrator of the crime.

(9) The Central Government and every State Government should take all measures as provided under Section 43 of the Act 32/2012 to give wide publicity of the provisions of the Act through media including television, radio and print media, at regular intervals, to make the general public, children as well as their parents and guardians, aware of the provisions of the Act.

56. Criminal appeals stand dismissed and the death sentence awarded to the accused is converted to that of rigorous imprisonment for life and that all the sentences awarded will run consecutively.

……………………J
(K.S. Radhakrishnan)

New Delhi
April 25, 2013

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 362-363 OF 2010
Shankar Kisanrao Khade    ….Appellant
Versus
State of Maharashtra    ….Respondent

JUDGMENT

Madan B. Lokur, J.

1. While entirely agreeing with my learned Brother Justice Radhakrishnan that the conviction of the appellant must be upheld and that all sentences awarded to him must run consecutively, I feel it necessary to draw attention to the views expressed by this Court on awarding death penalty or converting it to imprisonment for life in cases concerning rape and murder.

Element of subjectivity:

2. In Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 this Court noted in paragraph 44 of the Report that the expression “the rarest of rare cases” in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 indicates a relative category based on a comparison with other cases. In paragraph 45 of the Report, this Court considered the expression as requiring a comparison between (i) cases of murder with other cases of murder of the same or of a similar kind or even of a graver nature and (ii) the punishment awarded to the convicts in those cases. This Court also expressed the view that there is hardly any field available for comparison. In other words, this Court highlighted the difficulty in the practical application of the “rarest of rare” principle since there is a lack of empirical data for making the two-fold comparison.

3. The question therefore is: how does one determine that a case is rare as compared to another case? If such a comparison were possible, then on a relative basis could a particular case be described as rarer than an identified rare case? It is this inability to make a comparative evaluation and clarity on the issue due to a lack of information and any detailed study that the application of the rarest of rare principle becomes extremely delicate thereby making the awarding of a death sentence subjective as mentioned in Swamy Shraddananda or judge-centric as mentioned in Sangeet v. State of Haryana, 2013 (2) SCC 452.

Corridor of uncertainty:

4. My learned Brother Justice Radhakrishnan has put in great efforts in analyzing a species of cases (of which I am sure there would be many more) in which the victim was raped and murdered. These cases fall in two categories, namely, those in which the death penalty has been confirmed by this Court and those in which it has been converted to life imprisonment. In my view, there is a third category consisting of cases (which cannot be overlooked in the overall context of a sentencing policy) in which this Court has, while awarding a sentence of imprisonment for life, arrived at what is described as a via media and in which a fixed term of imprisonment exceeding 14 or 20 years (with or without remissions) has been awarded instead of a death penalty, or in which the sentence awarded has been consecutive and not concurrent.

5. For the present purposes, I will first refer to those somewhat recent cases (say over the last about 15 years) where the death penalty was converted to imprisonment for life and cull out the main reasons for commuting it. However, it is necessary to enter two caveats: Firstly, the Constitution Bench in Bachan Singh has concluded in paragraph 164 of the Report that normally the punishment for murder is life imprisonment and a death penalty may be imposed only if there are special reasons for doing so. In other words, special reasons are required to be recorded not for awarding life imprisonment but for awarding death sentence. This is what the Constitution Bench held:

“The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.”

6. It was further held in paragraph 209 of the Report that the normal rule is of awarding life sentence but death sentence may be awarded only if the alternative of life sentence is unquestionably foreclosed. The Constitution Bench held:

“It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guide-lines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

7. Strictly speaking, therefore, this Court is not required to record reasons for commuting the death sentence to one of life imprisonment – it is only required to record reasons for either confirming the death sentence or awarding it.

8. Secondly, though a sentence awarded by this Court relates to a specific case, nevertheless an exercise needs to be undertaken to identify some jurisprudential principle for awarding the death penalty. It is in this context that the present exercise has been undertaken. It is possible that the cases discussed are not exhaustive of the “rape and murder” category and perhaps some may have been left out of the discussion but the general principles or guidelines would be discernible from this exercise of finding a way through the existing corridor of uncertainty in sentencing.

Cases where the death penalty has been converted to imprisonment for life:

9. State of Tamil Nadu v. Suresh, (1998) 2 SCC 372 was a case of the rape and murder of a pregnant housewife. This Court took the view that though the crime was dastardly and the victim was a young pregnant housewife, it would not be appropriate to award the death penalty since the High Court had not upheld the conviction and also due to the passage of time. This is what was observed:

“The above discussion takes us to the final conclusion that the High Court has seriously erred in upsetting the conviction entered by the Sessions Court as against A-2 and A-3. The erroneous approach has resulted in miscarriage of justice by allowing the two perpetrators of a dastardly crime committed against a helpless young pregnant housewife who was sleeping in her own apartment with her little baby sleeping by her side and during the absence of her husband. We strongly feel that the error committed by the High Court must be undone by restoring the conviction passed against A-2 and A-3, though we are not inclined, at this distance of time, to restore the sentence of death passed by the trial court on those two accused.”

10. Nirmal Singh v. State of Haryana, (1999) 3 SCC 670 was a case in which Dharampal had raped P and was convicted for the offence. Pending an appeal the convict was granted bail. While on bail, Dharampal along with Nirmal Singh murdered five members of P’s family. Death penalty was awarded to Dharampal and Nirmal Singh by the Trial Court and confirmed by the High Court. This Court converted the death sentence in the case of Nirmal Singh to imprisonment for life since he had no criminal antecedents; there was no possibility of his committing criminal acts of violence; he would not continue being a threat to society; and he was not the main perpetrator of the crime. It was held:

“There is nothing on record to suggest that Nirmal was having any past criminal antecedents or that there is a possibility that the accused would commit criminal acts of violence and would constitute a continuing threat to the society. The only aggravating circumstance is that he had come with his brother and had given 3 blows on deceased Krishna only after Dharampal chased Krishna and gave kulhari blows hitting on the neck while Krishna was running and on sustaining that blow, she fell down and then Dharampal gave two to three blows to Krishna and only thereafter Nirmal gave burchi blows on the said Krishna. It is no doubt true that the presence of Nirmal at the scene of the occurrence with a burchi in his hand had emboldened Dharampal to take the drastic action of causing murder of 5 persons of Tale’s family as a result of which Tale’s family was totally wiped off. But because of the fact that Nirmal has not assaulted any other person and assaulted Krishna only after Dharampal had given her 3 or 4 blows, the case of Nirmal cannot be said to be the rarest of rare case attracting the extreme penalty of death. While, therefore, we uphold his conviction under Sections 302/34, we commute his sentence of death into imprisonment for life.”

11. Kumudi Lal v. State of Uttar Pradesh, (1999) 4 SCC 108 was a case of rape and murder of a 14 year old. This Court was of the view that the applicability of the rarest of rare principle did not arise in this case apparently because the crime had no ‘exceptional’ feature. This Court noted as follows:

“The circumstances indicate that probably she (the victim) was not unwilling initially to allow the appellant to have some liberty with her. The appellant not being able to resist his urge for sex went ahead in spite of her unwillingness for a sexual intercourse who offered some resistance and started raising shouts at that stage. In order to prevent her from raising shouts the appellant tied the salwar around her neck which resulted in strangulation and her death. We, therefore, do not consider this to be a fit case in which the extreme penalty of death deserves to be imposed upon the appellant.”

12. Akhtar v. State of Uttar Pradesh, (1999) 6 SCC 60 was a case of rape and murder of a young girl. The sentence of death awarded to the accused was converted to one of life imprisonment since he took advantage of finding the victim alone in a lonely place and her murder was not premeditated. It was observed:

“But in the case in hand on examining the evidence of the three witnesses it appears to us that the accused-appellant has committed the murder of the deceased girl not intentionally and with any premeditation. On the other hand the accused-appellant found a young girl alone in a lonely place, picked her up for committing rape; while committing rape and in the process by way of gagging the girl has died. The medical evidence also indicates that the death is on account of asphyxia. In the circumstances we are of the considered opinion that the case in hand cannot be held to be one of the rarest of rare cases justifying the punishment of death.”

13. In State of Maharashtra v. Suresh, (2000) 1 SCC 471 death penalty was not awarded to the accused since he had been acquitted by the High Court, even though the case was said to be “perilously near” to falling within the category of rarest of rare cases. The test of whether the lesser option was “unquestionably foreclosed” was adopted by this Court, which held:

“We, therefore, set aside the impugned judgment and restore the conviction passed by the trial court. Regarding sentence we would have concurred with the Sessions Court’s view that the extreme penalty of death can be chosen for such a crime, but as the accused was once acquitted by the High Court we refrain from imposing that extreme penalty in spite of the fact that this case is perilously near the region of “rarest of the rare cases” envisaged by the Constitution Bench in Bachan Singh v. State of Punjab. However, the lesser option is not unquestionably foreclosed and so we alter the sentence, in regard to the offence under Section 302 IPC, to imprisonment for life.”

14. In Mohd. Chaman v. State (NCT of Delhi), (2001) 2 SCC 28 the accused, a 30 year old man, had raped and killed a one and a half year old child. Despite concluding that the crime was serious and heinous and that the accused had a dirty and perverted mind, this Court converted the death penalty to one of imprisonment for life since he was not such a dangerous person who would endanger the community and because it was not a case where there was no alternative but to impose the death penalty. It was also held that a humanist approach should be taken in the matter of awarding punishment. It was held:

“Coming to the case in hand, the crime committed is undoubtedly serious and heinous and the conduct of the appellant is reprehensible. It reveals a dirty and perverted mind of a human being who has no control over his carnal desires. Then the question is: Whether the case can be classified as of a “rarest of rare” category justifying the severest punishment of death. Treating the case on the touchstone of the guidelines laid down in Bachan Singh, Machhi Singh [(1983) 3 SCC 470] and other decisions and balancing the aggravating and mitigating circumstances emerging from the evidence on record, we are not persuaded to accept that the case can be appropriately called one of the “rarest of rare cases” deserving death penalty. We find it difficult to hold that the appellant is such a dangerous person that to spare his life will endanger the community. We are also not satisfied that the circumstances of the crime are such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances in favour of the offender. It is our considered view that the case is one in which a humanist approach should be taken in the matter of awarding punishment.”

15. Raju v. State of Haryana, (2001) 9 SCC 50 was a case in which this Court took into account three factors for converting the death sentence of the accused to imprisonment for life for the rape and murder of an eleven year old child. Firstly, the murder was committed without any premeditation (however, there is no mention about the rape being not premeditated); secondly, the absence of any criminal record of the accused; and thirdly, there being nothing to show that the accused could be a grave danger to society. This is what was said:

“[T]he evidence on record discloses that the accused was not having an intention to commit the murder of the girl who accompanied him. On the spur of the moment without there being any premeditation, he gave two brick-blows which caused her death. There is nothing on record to indicate that the appellant was having any criminal record nor can he be said to be a grave danger to the society at large. In these circumstances, it would be difficult to hold that the case of the appellant would be rarest of rare case justifying imposition of death penalty.”

16. In Bantu v. State of Madhya Pradesh, (2001) 9 SCC 615 this Court converted the death sentence awarded to the accused to imprisonment for life. The accused was a 22 year old man who had raped and murdered a 6 year old child. It was acknowledged that the rape and murder was heinous, but this Court took into account that the accused had no previous criminal record and that he would not be a grave danger to society at large. On this basis, the death penalty was converted to life imprisonment. This is what was said:

“In the present case, there is nothing on record to indicate that the appellant was having any criminal record nor can it be said that he will be a grave danger to the society at large. It is true that his act is heinous and requires to be condemned but at the same time it cannot be said that it is the rarest of the rare case where the accused requires to be eliminated from the society. Hence, there is no justifiable reason to impose the death sentence.”

17. In State of Maharashtra v. Bharat Fakira Dhiwar, (2002) 1 SCC 622 this Court converted the death sentence to imprisonment for life since the accused was acquitted by the High Court and imprisonment for life was not unquestionably foreclosed. This is what this Court held:

“Regarding sentence we would have concurred with the Sessions Court’s view that the extreme penalty of death can be chosen for such a crime. However, as the accused was once acquitted by the High Court we refrain from imposing that extreme penalty in spite of the fact that this case is perilously near the region of “rarest of the rare cases”, as envisaged by the Constitution Bench in Bachan Singh v. State of Punjab. However, the lesser option is not unquestionably foreclosed and so we alter the sentence, in regard to the offence under Section 302 IPC, to imprisonment for life.”

18. In Amit v. State of Maharashtra, (2003) 8 SCC 93 the death penalty awarded to the accused for the rape and murder of an eleven year old child was converted to imprisonment for life for the reason that he was a young man of 20 years when the incident occurred; he had no prior record of any heinous crime; and there was no evidence that he would be a danger to society. This Court held:

“The next question is of the sentence. Considering that the appellant is a young man, at the time of the incident his age was about 20 years; he was a student; there is no record of any previous heinous crime and also there is no evidence that he will be a danger to the society, if the death penalty is not awarded. Though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare cases. We hope that the appellant will learn a lesson and have an opportunity to ponder over what he did during the period he undergoes the life sentence.”

19. Surendra Pal Shivbalakpal v. State of Gujarat, (2005) 3 SCC 127 was a case in which the death penalty awarded to the accused who had raped a minor child, was converted to life imprisonment considering the fact that he was 36 years old and there was no evidence of the accused being involved in any other case and there was no material to show that he would be a menace to society. It was held: “The next question that arises for consideration is whether this is a “rarest of rare case”; we do not think that this is a “rarest of rare case” in which death penalty should be imposed on the appellant. The appellant was aged 36 years at the time of the occurrence and there is no evidence that the appellant had been involved in any other criminal case previously and the appellant was a migrant labourer from U.P. and was living in impecunious circumstances and it cannot be said that he would be a menace to society in future and no materials are placed before us to draw such a conclusion. We do not think that the death penalty was warranted in this case.”

20. In State of Maharashtra v. Mansingh, (2005) 3 SCC 131 the accused was acquitted by the High Court of the offence of rape and murder of the victim. In a brief order, this Court noted this fact as well as the fact that this was a case of circumstantial evidence and, therefore, the death sentence was converted to imprisonment for life to meet the ends of justice. It was observed:

“Now the question which arises is as to whether the present case would come within the ambit of rarest of the rare case. In the facts and circumstances of the case, we are of the view that the trial court was not justified in imposing extreme penalty of death against the respondent and ends of justice would be met in case the sentence of life imprisonment is awarded against the respondent.”

21. Rahul v. State of Maharashtra, (2005) 10 SCC 322 was a case of the rape and murder of a four and a half year old child by the accused. The death sentence awarded to him was converted by this Court to one of life imprisonment since the accused was a young man of 24 years when the incident occurred; apparently his behavior in custody was not uncomplimentary; he had no previous criminal record; and would not be a menace to society. It was held:

“We have considered all the relevant aspects of the case. It is true that the appellant committed a serious crime in a very ghastly manner but the fact that he was aged 24 years at the time of the crime, has to be taken note of. Even though, the appellant had been in custody since 27-11-1999 we are not furnished with any report regarding the appellant either by any probationary officer or by the jail authorities. The appellant had no previous criminal record, and nothing was brought to the notice of the Court. It cannot be said that he would be a menace to the society in future. Considering the age of the appellant and other circumstances, we do not think that the penalty of death be imposed on him.”

22. In Amrit Singh v. State of Punjab, (2006) 12 SCC 79 a 6 or 7 year old child was raped and murdered by a 31 year old. This Court took the view that though the rape may be brutal and the offence heinous, “it could have been a momentary lapse” on the part of the accused and was not premeditated. The victim died “as a consequence of and not because of any overt act” by the accused. Consequently, the case did not fall in the category of rarest of rare cases. It was held:

“The opinion of the learned trial Judge as also the High Court that the appellant being aged about 31 years and not suffering from any disease, was in a dominating position and might have got her mouth gagged cannot be held to be irrelevant. Some marks of violence not only on the neck but also on her mouth were found. Submission of Mr Agarwal, however, that the appellant might not have an intention to kill the deceased, thus, may have some force. The death occurred not as a result of strangulation but because of excessive bleeding. The deceased had bleed half a litre of blood. Dr. Reshamchand Singh, PW 1 did not state that injury on the neck could have contributed to her death. The death occurred, therefore, as a consequence of and not because of any specific overt act on the part of the appellant.

“Imposition of death penalty in a case of this nature, in our opinion, was, thus, improper. Even otherwise, it cannot be said to be a rarest of rare cases. The manner in which the deceased was raped may be brutal but it could have been a momentary lapse on the part of the appellant, seeing a lonely girl at a secluded place. He had no premeditation for commission of the offence. The offence may look heinous, but under no circumstances, can it be said to be a rarest of rare cases.”

23.Bishnu Prasad Sinha v. State of Assam, (2007) 11 SCC 467 was a case concerning the rape and murder of a child aged about 7 or 8 years by two accused persons. The death penalty awarded to them was converted to life imprisonment since the conviction was based on circumstantial evidence and appellant No.1 had expressed remorse in his statement under Section 313 of the Code of Criminal Procedure and admitted his guilt. It appears that the second accused either did not admit his guilt or express any remorse. This Court held:

“The question which remains is as to what punishment should be awarded. Ordinarily, this Court, having regard to the nature of the offence, would not have differed with the opinion of the learned Sessions Judge as also the High Court in this behalf, but it must be borne in mind that the appellants are convicted only on the basis of the circumstantial evidence. There are authorities for the proposition that if the evidence is proved by circumstantial evidence, ordinarily, death penalty would not be awarded. Moreover, Appellant No.1 showed his remorse and repentance even in his statement under Section 313 of the Code of Criminal Procedure. He accepted his guilt.”

24. Santosh Kumar Singh v. State, (2010) 9 SCC 747 was a case in which the sentence of death was converted to life imprisonment by this Court since the accused had been acquitted by the Trial Court and the High Court had reversed the acquittal on circumstantial evidence. The accused was young man of 24 years when the incident occurred; he had got married in the meanwhile and had a daughter; his father had died a year after his conviction; his family faced a dismal future; and there was nothing to suggest that he was not capable of reform. It was held:

“Furthermore, we see that the mitigating circumstances need to be taken into account, more particularly that the High Court has reversed a judgment of acquittal based on circumstantial evidence. The appellant was a young man of 24 at the time of the incident and, after acquittal, had got married and was the father of a girl child. Undoubtedly also, the appellant would have had time for reflection over the events of the last fifteen years, and to ponder over the predicament that he now faces, the reality that his father died a year after his conviction and the prospect of a dismal future for his young family. On the contrary, there is nothing to suggest that he would not be capable of reform.

“There are extremely aggravating circumstances as well. In particular we notice the tendency of parents to be overindulgent to their progeny often resulting in the most horrendous of situations. These situations are exacerbated when an accused belongs to a category with unlimited power or pelf or even more dangerously, a volatile and heady cocktail of the two. The reality that such a class does exist is for all to see and is evidenced by regular and alarming incidents such as the present one.

“Nevertheless, to our mind, the balance sheet tilts marginally in favour of the appellant, and the ends of justice would be met if the sentence awarded to him is commuted from death to life imprisonment under Section 302 of the Penal Code; the other part of the sentence being retained as it is.”

25. Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC 764 was an unusual case in as much as the two learned Judges hearing the case had differed on the sentence to be awarded. Accordingly the matter was referred to a larger Bench which noted that the accused was about 28 years of age and had raped and killed a child studying in a school in Class IV. The accused was awarded a sentence of imprisonment for life subject to remissions and commutation at the instance of the Government for good and sufficient reasons. It was held as follows:

“Both the Hon’ble Judges have relied extensively on Dhananjoy Chatterjee case [(1994) 2 SCC 220]. In this case the death sentence had been awarded by the trial court on similar facts and confirmed by the Calcutta High Court and the appeal too dismissed by this Court leading to the execution of the accused. Ganguly, J. has, however, drawn a distinction on the facts of that case and the present one and held that as the appellant was a young man, only 27 years of age, it was obligatory on the trial court to have given a finding as to a possible rehabilitation and reformation and the possibility that he could still become a useful member of society in case he was given a chance to do so.

“We are, therefore, of the opinion that in the light of the findings recorded by Ganguly, J. it would not be proper to maintain the death sentence on the appellant….”

26. Incidentally, Dhananjoy Chatterjee was also 27 years of age when he committed the offence of rape and murder, while Rameshbhai Chandubhai Rathod was 28 years of age when he committed the offence.

27. In Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56 the Trial Court had awarded life sentence to the accused for the rape and murder of a 10 year old child but the High Court enhanced it to a sentence of death. Taking into account the view of the Trial Court, this Court converted the death sentence to one of life imprisonment. It was observed:

“So far as the sentence part is concerned, in view of the law referred to hereinabove, we are of the considered opinion that the case does not fall within the “rarest of rare cases”. The High Court was not justified in enhancing the punishment. Thus, in the facts and circumstances of the case, we set aside the punishment of death sentence awarded by the High Court and restore the sentence of life imprisonment awarded by the trial court. With this modification, the appeals stand disposed of.”

28. In Amit v. State of Uttar Pradesh, (2012) 4 SCC 107 the death penalty awarded to the accused for the rape and murder of a 3 year old child was converted to imprisonment for life since the accused was a young man of 28 years when he committed the offence; he had no prior history of any heinous offence; there was nothing to suggest that he would repeat such a crime in future; and given a chance, he may reform. This Court sentenced him to life imprisonment subject to remissions or commutation. This Court held:

“In the present case also, we find that when the appellant committed the offence he was a young person aged about 28 years only. There is no evidence to show that he had committed the offences of kidnapping, rape or murder on any earlier occasion. There is nothing on evidence to suggest that he is likely to repeat similar crimes in future. On the other hand, given a chance he may reform over a period of years. Hence, following the judgment of the three-Judge Bench in Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, we convert the death sentence awarded to the appellant to imprisonment for life and direct that the life sentence of the appellant will extend to his full life subject to any remission or commutation at the instance of the Government for good and sufficient reasons.”

Broad analysis:

29. A study of the above cases suggests that there are several reasons, cumulatively taken, for converting the death penalty to that of imprisonment for life. However, some of the factors that have had an influence in commutation include (1) the young age of the accused (Amit v. State of Maharashtra aged 20 years, Rahul aged 24 years, Santosh Kumar Singh aged 24 years, Rameshbhai Chandubhai Rathod (2) aged 28 years and Amit v. State of Uttar Pradesh aged 28 years); (2) the possibility of reforming and rehabilitating the accused (Santosh Kumar Singh and Amit v. State of Uttar Pradesh the accused, incidentally, were young when they committed the crime); (3) the accused had no prior criminal record (Nirmal Singh, Raju, Bantu, Amit v. State of Maharashtra, Surendra Pal Shivbalakpal, Rahul and Amit v. State of Uttar Pradesh); (4) the accused was not likely to be a menace or threat or danger to society or the community (Nirmal Singh, Mohd. Chaman, Raju, Bantu, Surendra Pal Shivbalakpal, Rahul and Amit v. State of Uttar Pradesh). A few other reasons need to be mentioned such as the accused having been acquitted by one the Courts (State of Tamil Nadu v. Suresh, State of Maharashtra v. Suresh, Bharat Fakira Dhiwar, Mansingh and Santosh Kumar Singh); the crime was not premeditated (Kumudi Lal, Akhtar, Raju and Amrit Singh); the case was one of circumstantial evidence (Mansingh and Bishnu Prasad Sinha). In one case, commutation was ordered since there was apparently no ‘exceptional’ feature warranting a death penalty (Kumudi Lal) and in another case because the Trial Court had awarded life sentence but the High Court enhanced it to death (Haresh Mohandas Rajput).

Cases where the death penalty has been confirmed:

30. Jumman Khan v. State of Uttar Pradesh, (1991) 1 SCC 752 was a case in which the death penalty was confirmed by this Court for the rape and murder of a 6 year old child on the basis of the brutality of the crime and on circumstantial evidence. This Court quoted the order dismissing the special leave petition of the accused against his conviction, in which it was said:

“Although the conviction of the petitioner under Section 302 of the Indian Penal Code, 1860 rests on circumstantial evidence, the circumstantial evidence against the petitioner leads to no other inference except that of his guilt and excludes every hypothesis of his innocence……

Failure to impose a death sentence in such grave cases where it is a crime against the society – particularly in cases of murders committed with extreme brutality – will bring to naught the sentence of death provided by Section 302 of the Indian Penal Code. It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment. The only punishment which the appellant deserves for having committed the reprehensible and gruesome murder of the innocent child to satisfy his lust, is nothing but death as a measure of social necessity and also as a means of deterring other potential offenders. The sentence of death is confirmed.”

31. In Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220 this Court confirmed the death sentence of the 27 year old married accused taking into consideration the rising crime graph, particularly violent crime against women; society’s cry for justice against criminals; and the fact that the rape and murder of an 18 year old was premeditated and committed in a brutal manner by a security guard against a young defenceless person to satisfy his lust and in retaliation for a complaint made by her against him. This is what this Court had to say:

“In recent years, the rising crime rate — particularly violent crime against women has made the criminal sentencing by the courts a subject of concern……

“In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society’s cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.

“The sordid episode of the security guard, whose sacred duty was to ensure the protection and welfare of the inhabitants of the flats in the apartment, should have subjected the deceased, a resident of one of the flats, to gratify his lust and murder her in retaliation for his transfer on her complaint, makes the crime even more heinous. Keeping in view the medical evidence and the state in which the body of the deceased was found, it is obvious that a most heinous type of barbaric rape and murder was committed on a helpless and defenceless school-going girl of 18 years…….”

32. In Laxman Naik v. State of Orissa, (1994) 3 SCC 381 this Court was of the opinion that since the accused was the guardian of the helpless victim, his 7 year old niece, and since the crime was pre-planned, cold blooded, brutal and diabolical, the appropriate punishment would be a sentence of death. This Court held:

“The hard facts of the present case are that the appellant Laxman is the uncle of the deceased and almost occupied the status and position that of a guardian. Consequently the victim who was aged about 7 years must have reposed complete confidence in the appellant and while reposing such faith and confidence in the appellant must have believed in his bona fides and it was on account of such a faith and belief that she acted upon the command of the appellant in accompanying him under the impression that she was being taken to her village unmindful of the preplanned unholy designs of the appellant. The victim was a totally helpless child there being no one to protect her in the desert where she was taken by the appellant misusing her confidence to fulfil his lust. It appears that the appellant had preplanned to commit the crime by resorting to diabolical methods and it was with that object that he took the girl to a lonely place to execute his dastardly act.”

33. Kamta Tiwari v. State of Madhya Pradesh, (1996) 6 SCC 250 was a case where the accused was close to the family of the victim, a 7 year old child. In fact, she would address him as ‘Uncle Tiwari’. He was, therefore, in the nature of a person of trust, while the victim was in a hapless condition and was brutally raped and murdered in a premeditated manner. This Court held:

“Taking an overall view of all the facts and circumstances of the instant case in the light of the above propositions we are of the firm opinion that the sentence of death should be maintained. In vain we have searched for mitigating circumstances — but found aggravating circumstances aplenty. …… When an innocent hapless girl of 7 years was subjected to such barbaric treatment by a person who was in a position of her trust his culpability assumes the proportion of extreme depravity and arouses a sense of revulsion in the mind of the common man. In fine, the motivation of the perpetrator, the vulnerability of the victim, the enormity of the crime, the execution thereof persuade us to hold that this is a “rarest of rare” cases where the sentence of death is eminently desirable not only to deter others from committing such atrocious crimes but also to give emphatic expression to society’s abhorrence of such crimes.”

34. Nirmal Singh v. State of Haryana, (1999) 3 SCC 670 has already been referred to above. One of the accused Dharampal, had been convicted for rape and had filed an appeal. Pending the appeal, he applied for and was granted bail. While on bail, he killed five members of the family who had given evidence against him in the case for which he was convicted of rape, thereby carrying out the threat he had earlier given. The crime was pre-planned and executed in a brutal manner. Confirming the death penalty awarded to him, this Court held:

“…… Coming to the question of sentence, however, we find that the High Court has not considered the individual role played by each of the appellants. So far as accused Dharampal is concerned, it is he who had given the threat on the previous occasion that if anybody gives evidence in the rape case, the whole family will be wiped off. It is he who after being convicted in the said rape case preferred an appeal and obtained a bail from the High Court and has totally misutilised that privilege of bail by killing 5 persons who were all the members of the family of P whose deposition was responsible for his conviction in the rape case. It is he who has assaulted each of the 5 deceased persons by means of a kulhari and the nature of the injuries as found by the doctor would indicate that the act is an act of a depraved mind and is most brutal and heinous in nature. It is he who had consecrated the plan to put into action his earlier threat but he has taken the help of his brother Nirmal.”

35. Jai Kumar v. State of Madhya Pradesh, (1999) 5 SCC 1 was a case in which the death penalty was confirmed since this Court accepted the view of the High Court that the accused was a “living danger” and incapable of rehabilitation. The crime was that of an attempted rape of a 30 year old pregnant woman followed by her murder and the murder of her 8 year old child. This Court held that the crime was brutal and committed in a gruesome and depraved manner. The fact that the accused was a young man of 22 years was held not to be a relevant factor, given the nature of the crime. The judicial conscience of this Court was shocked by the facts of the case. It was held:

“…… [W]e are unable to record our concurrence with the submissions of Mr Muralidhar that there are some mitigating circumstances and there is likelihood of the accused being reformed or rehabilitated. Incidentally, the High Court has described the accused as “a living danger” and we cannot agree more therewith in view of the gruesome act as noticed above.

“The facts establish the depravity and criminality of the accused in no uncertain terms. No regard being had for the precious life of the young child also. The compassionate ground of the accused being 22 years of age cannot in the facts of the matter be termed to be at all relevant…… “In the present case, the savage nature of the crime has shocked our judicial conscience. The murder was coldblooded and brutal without any provocation. It certainly makes it a rarest of the rare cases in which there are no extenuating or mitigating circumstances.

36. In Molai & Anr. v. State of M.P., (1999) 9 SCC 581 death penalty awarded to both the accused for the rape and murder of a 16 year old was confirmed. Molai was a guard in a Central Jail and Santosh was undergoing a sentence in that jail. The victim was the daughter of the Assistant Jailor. Taking into account the manner of commission of the offence and the fact that they took advantage of the victim being alone in a house, the death penalty was confirmed by this Court although the case was one of circumstantial evidence. This Court held:

“…… It cannot be overlooked that N, a 16-year-old girl, was preparing for her Class 10th examination at her house and suddenly both the accused took advantage of she being alone in the house and committed a most shameful act of rape. The accused did not stop there but they strangulated her by using her undergarment and thereafter took her to the septic tank along with the cycle and caused injuries with a sharp-edged weapon. The accused did not even stop there but they exhibited the criminality in their conduct by throwing the dead body into the septic tank totally disregarding the respect for a human dead body. Learned counsel for the accused (appellants) could not point any mitigating circumstance from the record of the case to justify the reduction of sentence of either of the accused.”

37. State of Uttar Pradesh v. Satish, (2005) 3 SCC 114 is a remarkable case for the reason that the accused was acquitted by the High Court and yet the death penalty awarded by the Trial Court was upheld by this Court for the rape and murder of a school going child. The case was also one of circumstantial evidence. The special reasons for awarding the death penalty were the diabolic and inhuman nature of the crime. It was held:

“Considering the view expressed by this Court in Bachan Singh case and Machhi Singh case we have no hesitation in holding that the case at hand falls in the rarest of rare category and death sentence awarded by the trial court was appropriate. The acquittal of the respondent-accused is clearly unsustainable and is set aside. In the ultimate result, the judgment of the High Court is set aside and that of the trial court is restored. The appeals are allowed.”

38. Shivu & Anr. v. Registrar General, High Court of Karnataka, (2007) 4 SCC 713 was a case in which the special reasons for confirming the death penalty given to both the accused who were aged about 20 and 22 years old respectively were the heinous rape and murder of an 18 year old. It was noted that the accused had twice earlier attempted to commit rape but were not successful. Though no case was lodged against them, they were admonished by the village elders and the Panchayat and asked to mend their ways. It was held:

“Considering the view expressed by this Court in Bachan Singh case and Machhi Singh case we have no hesitation in holding that the case at hand falls in rarest of rare category and death sentence awarded by the trial court and confirmed by the High Court was appropriate.”

39. In Bantu v. State of Uttar Pradesh, (2008) 11 SCC 113 the death sentence was confirmed for the special reason of the depraved and heinous act of rape and murder of a 5 year old child, which included the insertion of a wooden stick in her vagina to the extent of 33 cms. to masquerade the crime as an accident. This Court held:

“The case at hand falls in the rarest of the rare category. The depraved acts of the accused call for only one sentence, that is, death sentence.”

40. In Shivaji v. State of Maharashtra, (2008) 15 SCC 269 this Court categorically rejected the view that death sentence cannot be awarded in a case where the evidence is circumstantial. The death sentence was upheld also because of the depraved acts of the accused in raping and murdering a 9 year old child. This Court held:

“The plea that in a case of circumstantial evidence death should not be awarded is without any logic. If the circumstantial evidence is found to be of unimpeachable character in establishing the guilt of the accused, that forms the foundation for conviction. That has nothing to do with the question of sentence as has been observed by this Court in various cases while awarding death sentence. The mitigating circumstances and the aggravating circumstances have to be balanced. In the balance sheet of such circumstances, the fact that the case rests on circumstantial evidence has no role to play……….

“The case at hand falls in the rarest of the rare category. The circumstances highlighted above establish the depraved acts of the accused, and they call for only one sentence, that is, death sentence.”

41. In Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667 of the six accused, three were awarded life sentence by the High Court while for the remaining three, the death sentence was confirmed. The accused were found to have committed five murders and had raped a lady (who survived) and a child of 15 years of age (who died). This Court awarded the death penalty to all the six accused. This Court found the crime to be cruel and diabolic; the collective conscience of the community was shocked; the victims were of a tender age and defenceless; the victims had no animosity towards the accused and the attack against them was unprovoked. Considering these factors, this Court awarded the death penalty to all the accused and held:

“The murders were not only cruel, brutal but were diabolic. The High Court has held that those who were guilty of rape and murder deserve death sentence, while those who were convicted for murder only were to be awarded life sentence. The High Court noted that the whole incident is extremely revolting, it shocks the collective conscience of the community and the aggravating circumstances have outweighed the mitigating circumstances in the case of accused persons 1, 2 and 4; but held that in the case of others it was to be altered to life sentence.

“The High Court itself noticed that five members of a family were brutally murdered, they were not known to the accused and there was no animosity towards them. Four of the witnesses were of tender age, they were defenceless and the attack was without any provocation. Some of them were so young that they could not resist any attack by the accused. A minor girl of about fifteen years was dragged to the open field, gang-raped and done to death.

“Above being the position, the appeals filed by the accused persons deserve dismissal, which we direct and the State’s appeals deserve to be allowed. A-2, A-3 and A-5 are also awarded death sentence. In essence all the six accused persons deserve death sentence.”

42. B.A. Umesh v. Registrar General, High Court of Karnataka, (2011) 3 SCC 85 was a case of the rape and murder of a lady, a mother of a 7 year old child. In the High Court, there was a difference of opinion on the sentence to be awarded – one of the learned judges confirmed the death penalty while the other learned judge was of the view that imprisonment for life should be awarded. The matter was referred to a third learned judge who agreed with the award of a death penalty. This Court confirmed the death penalty since the crime was unprovoked and committed in a depraved and merciless manner; the accused was alleged to have been earlier and subsequently involved in criminal activity; he was a menace to society and incapable of rehabilitation; the accused did not feel any remorse for what he had done. It was held:

“On the question of sentence we are satisfied that the extreme depravity with which the offences were committed and the merciless manner in which death was inflicted on the victim, brings it within the category of the rarest of rare cases which merits the death penalty, as awarded by the trial court and confirmed by the High Court. None of the mitigating factors as were indicated by this Court in Bachan Singh case or in Machhi Singh case are present in the facts of the instant case. The appellant even made up a story as to his presence in the house on seeing PW 2 Suresh, who had come there in the meantime. Apart from the above, it is clear from the recoveries made from his house that this was not the first time that he had committed crimes in other premises also, before he was finally caught by the public two days after the present incident, while trying to escape from the house of one Seeba where he made a similar attempt to rob and assault her and in the process causing injuries to her.

“As has been indicated by the courts below, the antecedents of the appellant and his subsequent conduct indicates that he is a menace to the society and is incapable of rehabilitation. The offences committed by the appellant were neither under duress nor on provocation and an innocent life was snuffed out by him after committing violent rape on the victim. He did not feel any remorse in regard to his actions, inasmuch as, within two days of the incident he was caught by the local public while committing an offence of a similar type in the house of one Seeba.”

43. Mohd. Mannan v. State of Bihar, (2011) 5 SCC 317 was a case which a 42 year old man had raped and killed a 7 year old child. This Court looked at the factors for awarding death sentence both in the negative as well as in the positive sense. It was held that the number of persons killed by the accused is not a decisive factor; nor is the mere brutality of the crime decisive. However if the brutality of the crime shocks the collective conscience of the community, one has to lean towards the death penalty. Additionally, it is to be seen if the accused is a menace to society and can be reformed or not. Applying these broad parameters, this Court held that the accused was a mature man of 43 years; that he held a position of trust in relation to the victim; that the crime was pre-planned; and that the crime was, pre-planned, unprovoked and gruesome against a defenceless child. It was held:

“…… The appellant is a matured man aged about 43 years. He held a position of trust and misused the same in a calculated and pre-planned manner. He sent the girl aged about 7 years to buy betel and few minutes thereafter in order to execute his diabolical and grotesque desire proceeded towards the shop where she was sent. The girl was aged about 7 years of thin built and 4 ft of height and such a child was incapable of arousing lust in normal situation. The appellant had won the trust of the child and she did not understand the desire of the appellant which would be evident from the fact that while she was being taken away by the appellant no protest was made and the innocent child was made prey of the appellant’s lust.

“The post-mortem report shows various injuries on the face, nails and body of the child. These injuries show the gruesome manner in which she was subjected to rape. The victim of crime is an innocent child who did not provide even an excuse, much less a provocation for murder. Such cruelty towards a young child is appalling. The appellant had stooped so low as to unleash his monstrous self on the innocent, helpless and defenceless child. This act no doubt had invited extreme indignation of the community and shocked the collective conscience of the society. Their expectation from the authority conferred with the power to adjudicate is to inflict the death sentence which is natural and logical. We are of the opinion that the appellant is a menace to the society and shall continue to be so and he cannot be reformed.”

44. In Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37 the accused, a 31 year old, had raped and murdered a 3 year old child. This Court considered the brutality of the crime and the conduct of the accused prior to, during and after the crime. Prior to the incident, the accused had worked under a false name and had gained the trust and confidence of the victim. The accused had, after committing a brutal crime, left the injured victim in the open field without any clothes, thereby exhibiting his unfortunate and abusive conduct. It was held:

“This Court has to examine the conduct of the accused prior to, at the time as well as after the commission of the crime. Prior thereto, the accused had been serving with PW 5 and PW 6 under a false name and took advantage of his familiarity with the family of the deceased. He committed the crime in the most brutal manner and, thereafter, he opted not to explain any circumstances and just took up the plea of false implication, which is unbelievable and unsustainable.

“Another aspect of the matter is that the minor child was helpless in the cruel hands of the accused. The accused was holding the child in a relationship of “trust-belief” and “confidence”, in which capacity he took the child from the house of PW 2. In other words, the accused, by his conduct, has belied the human relationship of trust and worthiness. The accused left the deceased in a badly injured condition in the open fields without even clothes. This reflects the most unfortunate and abusive facet of human conduct, for which the accused has to blame no one else than his own self.”

Broad analysis:

45. The principal reasons for confirming the death penalty in the above cases include (1) the cruel, diabolic, brutal, depraved and gruesome nature of the crime (Jumman Khan, Dhananjoy Chatterjee, Laxman Naik, Kamta Tewari, Nirmal Singh, Jai Kumar, Satish, Bantu, Ankush Maruti Shinde, B.A. Umesh, Mohd. Mannan and Rajendra Pralhadrao Wasnik); (2) the crime results in public abhorrence, shocks the judicial conscience or the conscience of society or the community (Dhananjoy Chatterjee, Jai Kumar, Ankush Maruti Shinde and Mohd. Mannan); (3) the reform or rehabilitation of the convict is not likely or that he would be a menace to society (Jai Kumar, B.A. Umesh and Mohd. Mannan); (4) the victims were defenceless (Dhananjoy Chatterjee, Laxman Naik, Kamta Tewari, Ankush Maruti Shinde, Mohd. Mannan and Rajendra Pralhadrao Wasnik); (5) the crime was either unprovoked or that it was premeditated (Dhananjoy Chatterjee, Laxman Naik, Kamta Tewari, Nirmal Singh, Jai Kumar, Ankush Maruti Shinde, B.A. Umesh and Mohd. Mannan) and in three cases the antecedents or the prior history of the convict was taken into consideration (Shivu, B.A. Umesh and Rajendra Pralhadrao Wasnik).

46. However, what is more significant is that there are cases where the factors taken into consideration for commuting the death penalty were given a go-bye in cases where the death penalty was confirmed. The young age of the accused was not taken into consideration or held irrelevant in Dhananjoy Chatterjee aged about 27 years, Jai Kumar aged about 22 years and Shivu & another aged about 20 and 22 years while it was given importance in Amit v. State of Maharashtra, Rahul, Santosh Kumar Singh, Rameshbhai Chandubhai Rathod (2) and Amit v. State of Uttar Pradesh. The possibility of reformation or rehabilitation was ruled out, without any expert evidence, in Jai Kumar, B.A. Umesh and Mohd. Mannan in much the same manner, without any expert evidence, as the benefit thereof was given in Nirmal Singh, Mohd. Chaman, Raju, Bantu, Surendra Pal Shivbalakpal, Rahul and Amit v. State of Uttar Pradesh. Acquittal or life sentence awarded by the High Court was considered not good enough reason to convert the death sentence in Satish, Ankush Maruti Shinde and B.A. Umesh but it was good enough in State of Tamil Nadu v. Suresh, State of Maharashtra v. Suresh, Bharat Fakira Dhiwar and Santosh Kumar Singh. Even though the crime was not premeditated, the death penalty was confirmed in Molai notwithstanding the view expressed in Akhtar, Raju and Amrit Singh. Circumstantial evidence was held not to be a ‘mitigating’ factor in Jumman Khan, Kamta Tewari, Molai and Shivaji but it was so held in Bishnu Prasad Sinha.

47. Bachan Singh is more than clear that the crime is important (cruel, diabolic, brutal, depraved and gruesome) but the criminal is also important and this, unfortunately has been overlooked in several cases in the past (as mentioned in Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498) and even in some of the cases referred to above. It is this individualized sentencing that has made this Court wary, in the recent past, of imposing death penalty and instead substituting it for fixed term sentences exceeding 14 years (the term of 14 years or 20 years being erroneously equated with life imprisonment) or awarding consecutive sentences. Some of these cases, which are not necessarily cases of rape and murder, are mentioned below.

Minimum fixed term sentences:

48. There have been several cases where life sentence has been awarded by this Court with a minimum fixed term of incarceration. Many of them have been discussed in Swamy Shraddananda and so it is not necessary to refer to them individually. Swamy Shraddananda refers to Aloke Nath Dutta v. State of West Bengal, (2007) 12 SCC 230 which in turn refers to five different cases. I propose to refer to them at this stage.

49. In Subhash Chander v. Krishan Lal, (2001) 4 SCC 458 it was held that the convict shall remain in prison “for the rest of his life. He shall not be entitled to any commutation or premature release under Section 401 of the Code of Criminal Procedure, Prisoners Act, Jail Manual or any other statute and the rules made for the purposes of grant of commutation and remissions.”

50. In Shri Bhagwan v. State of Rajasthan, (2001) 6 SCC 296, Prakash Dhawal Khairnar (Patil) v. State of Maharashtra, (2002) 2 SCC 35 and Ram Anup Singh v. State of Bihar, (2002) 6 SCC 686 the convict was directed to serve out at least 20 years of imprisonment.

51. In Mohd. Munna v. Union of India, (2005) 7 SCC 417 the convict had undergone 21 years of incarceration. This Court held that he was not entitled to release as a matter of course but was required to serve out his sentence till the remainder of his life subject to remissions by the appropriate authority or State Government.

52. Swamy Shraddananda also refers to Jayawant Dattatraya Suryarao v. State of Maharashtra, (2001) 10 SCC 109 in which it was directed that the convict “will not be entitled to any commutation or premature release under Section 433-A of the Criminal Procedure Code, Prisoners Act, Jail Manual or any other statute and the Rules made for the purpose of commutation and remissions.” Similarly, in Nazir Khan v. State of Delhi, (2003) 8 SCC 461 while sentencing the convicts to imprisonment for 20 years it was held that they would not be entitled to any remission from this period.

53. The death sentence to the convict in Swamy Shraddananda was converted to imprisonment for life with a further direction that he shall not be released till the rest of his life.

54. Sebastian v. State of Kerala, (2010) 1 SCC 58 was a case of a 24 year old extremely violent pedophile accused of raping a two-year old child and then murdering her. While commuting the death sentence, this Court held that he should remain in jail for the rest of his life in terms of Swamy Shraddananda. It was observed:

“The evidence that the appellant was a paedophile with extremely violent propensities also stands proved on record in that he had been convicted and sentenced for an offence punishable under Section 354 in the year 1998 and later for the offences punishable under Sections 363, 376, 379, 302 and 201 IPC for the rape and murder of a young child and had been awarded a sentence of imprisonment for life under Section 302, and several other terms of imprisonment with respect to the other sections, though, an appeal in this connection was pending as on date. It is also extremely relevant that the appellant had, in addition, been tried for the murders of several other children but had been acquitted on 28-7-2005 with the benefit of doubt. The present incident happened three days later.

“We accordingly dismiss the appeals but modify the sentence of death to one for the rest of his life in terms of the judgment in Shraddananda case.”

55. In Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257 this Court converted the death sentence of the accused to imprisonment for life though the crime of rape and murder was heinous, since the accused persons were young at the time of commission of the offence (between 21 and 31 years of age); the possibility of the death of the victim being accidental; and the accused not being a social menace with possibility of reforming themselves. It was held, while modifying the sentence that the accused serve a term of imprisonment of 21 years:

“While we cumulatively examine the various principles and apply them to the facts of the present case, it appears to us that the age of the accused, possibility of the death of the deceased occurring accidently and the possibility of the accused reforming themselves, they cannot be termed as “social menace”. It is unfortunate but a hard fact that all these accused have committed a heinous and inhumane crime for satisfaction of their lust, but it cannot be held with certainty that this case falls in the “rarest of rare” cases. On appreciation of the evidence on record and keeping the facts and circumstances of the case in mind, we are unable to hold that any other sentence but death would be inadequate.

“Accordingly, while commuting the sentence of death to that of life imprisonment (21 years), we partially allow their appeals only with regard to the quantum of sentence.”

56. In Neel Kumar v. State of Haryana, (2012) 5 SCC 766 this Court modified the death penalty awarded to the accused for the rape and murder of his 4 year old daughter to one of 30 years imprisonment without remissions. It was held:

“A three-Judge Bench of this Court in Swamy Shraddananda (2) v. State of Karnataka, considering the facts of the case, set aside the sentence of death penalty and awarded the life imprisonment but further explained that in order to serve the ends of justice, the appellant therein would not be released from prison till the end of his life.

“Similarly, in Ramraj v. State of Chhattisgarh [(2010) 1 SCC 573] this Court while setting aside the death sentence made a direction that the appellant therein would serve minimum period of 20 years including remissions earned and would not be released on completion of 14 years’ imprisonment.

“Thus, in the facts and circumstances of the case, we set aside the death sentence and award life imprisonment. The appellant must serve a minimum of 30 years in jail without remissions, before consideration of his case for premature release.”

57. In Sandeep v. State of U.P., (2012) 6 SCC 107 the death sentence awarded to the convict for the murder of his pregnant friend and pouring acid on her head was converted to sentence of life for a minimum period of 30 years without any remission before his case could be considered for premature release.

58. In Brajendrasingh v. State of Madhya Pradesh, (2012) 4 SCC 289 the accused had murdered his wife and three children since he suspected his wife’s fidelity. The death penalty awarded to him was converted to imprisonment for life by this Court with a minimum imprisonment of 21 years. This is what was said by this Court:

“Considering the above aspects, we are of the considered view that it is not a case which falls in the category of the “rarest of rare” cases where imposition of death sentence is imperative. It is also not a case where imposing any other sentence would not serve the ends of justice or would be entirely inadequate.

“Once we draw the balance sheet of aggravating and mitigating circumstances and examine them in the light of the facts and circumstances of the present case, we have no hesitation in coming to the conclusion that this is not a case where this Court ought to impose the extreme penalty of death upon the accused. Therefore, while partially accepting the appeals only with regard to quantum of sentence, we commute the death sentence awarded to the accused to one of life imprisonment (21 years).”

59. In State of Uttar Pradesh v. Sanjay Kumar, (2012) 8 SCC 537 this Court converted the death penalty awarded to the accused for the rape and murder of an 18 year old into one of life imprisonment with a further direction that he would not be granted premature release under the guidelines framed for that purpose, that is, the Jail Manual or even under Section 433-A of the Cr. P.C. It was said:

“In view of the above, we reach the inescapable conclusion that the submissions advanced by the learned counsel for the State are unfounded. The aforesaid judgments make it crystal clear that this Court has merely found out the via media, where considering the facts and circumstances of a particular case, by way of which it has come to the conclusion that it was not the “rarest of rare cases”, warranting death penalty, but a sentence of 14 years or 20 years, as referred to in the guidelines laid down by the States would be totally inadequate. The life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years, rather it always meant as the whole natural life. This Court has always clarified that the punishment so awarded would be subject to any order passed in exercise of the clemency powers of the President of India or the Governor of the State, as the case may be. Pardons, reprieves and remissions are granted in exercise of prerogative power. There is no scope of judicial review of such orders except on very limited grounds, for example, non-application of mind while passing the order; non-consideration of relevant material; or if the order suffers from arbitrariness. The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly and reasonably. Administration of justice cannot be perverted by executive or political pressure. Of course, adoption of uniform standards may not be possible while exercising the power of pardon. Thus, such orders do not interfere with the sovereign power of the State. More so, not being in contravention of any statutory or constitutional provision, the orders, even if treated to have been passed under Article 142 of the Constitution do not deserve to be labelled as unwarranted. The aforesaid orders have been passed considering the gravity of the offences in those cases that the accused would not be entitled to be considered for premature release under the guidelines issued for that purpose i.e. under the Jail Manual, etc. or even under Section 433-A CrPC.”

60. In Gurvail Singh v. State of Punjab, (2013) 2 SCC 713 the death sentence was converted to imprisonment for life with the requirement that the convict spends a minimum of thirty years in jail without remission. It was held:

“We are of the view, so far as this case is concerned, that the extreme sentence of capital punishment is not warranted. Due to the fact that the appellants are instrumental for the death of four persons and nature of injuries they have inflicted, in front of PW 1, whose son, daughter-in-law and two grandchildren were murdered, we are of the view that the appellants deserve no sympathy. Considering the totality of facts and circumstances of this case we hold that imposition of death sentence on the appellants was not warranted but while awarding life imprisonment to the appellants, we hold that they must serve a minimum of thirty years in jail without remission. The sentence awarded by the trial court and confirmed by the High Court is modified as above. Under such circumstances, we modify the sentence from death to life imprisonment. Applying the principle laid down by this Court in Sandeep we are of the view that the minimum sentence of thirty years would be an adequate punishment, so far as the facts of this case are concerned.”

Consecutive sentence cases:

61. Ravindra Trimbak Chouthmal v. State of Maharashtra, (1996) 4 SCC 148 is perhaps among the earliest cases where consecutive sentences were awarded. This was not a case of rape and murder but one of causing a dowry death of his pregnant wife. It was held that it was not the “rarest of rare” cases “because dowry death has ceased to belong to that species of killing.” The death sentence was, therefore, not upheld. Since the accused had attempted to cause disappearance of the evidence by severing the head and cutting the body into nine pieces, this Court directed that he should undergo the sentence for that crime after serving out his life sentence. It was held:

“We have given considered thought to the question and we have not been able to place the case in that category which could be regarded as the “rarest of the rare” type. This is so because dowry death has ceased to belong to that species of killing. The increasing number of dowry deaths would bear this. To halt the rising graph, we, at one point, thought to maintain the sentence; but we entertain doubt about the deterrent effect of a death penalty. We, therefore, resist ourselves from upholding the death sentence, much though we would have desired annihilation of a despicable character like the appellant before us. We, therefore, commute the sentence of death to one of RI for life imprisonment.

“But then, it is a fit case, according to us, where, for the offence under Sections 201/34, the sentence awarded, which is RI for seven years being the maximum for a case of the present type, should be sustained, in view of what had been done to cause disappearance of the evidence relating to the commission of murder — the atrocious way in which the head was severed and the body was cut in nine pieces. These cry for maximum sentence. Not only this, the sentence has to run consecutively, and not concurrently, to show our strong disapproval of the loathsome, revolting and dreaded device adopted to cause disappearance of the dead body. To these sentences, we do not, however, desire to add those awarded for offences under Sections 316 and 498- A/34, as killing of the child in the womb was not separately intended, and Section 498-A offence ceases to be of significance and importance in view of the murder of Vijaya.

“The result is that the appeal stands allowed to the extent that the sentence of death is converted to one of imprisonment for life. But then, the sentence of seven years’RI for the offence under Sections 201/34 IPC would start running after the life imprisonment has run its course as per law.”

Since imprisonment for life means that the convict will remain in jail till the end of his normal life, what this decision mandates is that if the convict is to be earlier released by the competent authority for any reason, in accordance with procedure established by law, then the second sentence will commence immediately thereafter.

62. Ronny v. State of Maharashtra, (1998) 3 SCC 625 is also among the earliest cases in the recent past where consecutive sentences were awarded. The three accused, aged about 35 years (two of them) and 25/27 years had committed three murders and a gang rape. This Court converted the death sentence of all three to imprisonment for life since it was not possible to identify whose case would fall in the category of “rarest of rare” cases. However, after awarding a sentence of life imprisonment, this Court directed that they would all undergo punishment for the offence punishable under Section 376(2)(g) of the IPC consecutively, after serving the sentences for other offences. It was held:

“Considering the cumulative effect of all the factors, it cannot be said that the offences were committed under the influence of extreme mental or emotional disturbance for the whole thing was done in a pre-planned way; having regard to the nature of offences and circumstances in which they were committed, it is not possible for the Court to predict that the appellant would not commit criminal act of violence or would not be a threat to the society. A-1 is 35 years’ old, A-2 is 35 years’ old and A-3 is 25 (sic 27) years’ old. The appellants cannot be said to be too young or too old. The possibility of reform and rehabilitation, however, cannot be ruled out. From the facts and circumstances, it is not possible to predict as to who among the three played which part. It may be that the role of one has been more culpable in degree than that of the others and vice versa. Where in a case like this it is not possible to say as to whose case falls within the “rarest of the rare” cases, it would serve the ends of justice if the capital punishment is commuted into life imprisonment. Accordingly, we modify the sentence awarded by the courts below under Section 302 read with Section 34 from death to life imprisonment. The sentences for the offences for which the appellants are convicted, except under Section 376(2)(g) IPC, shall run concurrently; they shall serve sentence under Section 376(2)(g) IPC consecutively, after serving sentence for the other offences.”

63. In Sandesh v. State of Maharashtra, (2013) 2 SCC 479 this Court converted the death penalty awarded to the accused to imprisonment for life, inter alia, for the rape of a pregnant lady, attempted murder and the murder of her mother in law to imprisonment for life with a further direction that all the sentences were to run consecutively.

64. In Sanaullah Khan v. State of Bihar, MANU/SC/0165/2013 the death sentence awarded to the accused for the murder of three persons was converted by this Court to imprisonment for life for each of the three murders and further the sentences were directed to run consecutively.

65. These decisions clearly suggest that this Court has been seriously reconsidering, though not in a systemic manner, awarding life sentence as an alternative to death penalty by applying (though not necessarily mentioning) the “unquestionably foreclosed” formula laid down in Bachan Singh.

66. Off and on, the issue has been the interpretation of “life sentence” – does it mean imprisonment for only 14 years or 20 years or does it mean for the life of the convict. This doubt has been laid to rest in several cases, more recently in Sangeet where it has been unequivocally laid down that a sentence of imprisonment for life means imprisonment for the rest of the normal life of the convict. The convict is not entitled to any remission in a case of sentence of life imprisonment, as is commonly believed. However, if the convict is sought to be released before the expiry of his life, it can only be by following the procedure laid down in Section 432 of the Code of Criminal Procedure or by the Governor exercising power under Article 161 of the Constitution or by the President exercising power under Article 72 of the Constitution. There is no other method or procedure. Whether the statutory procedure under Section 432 of the Code of Criminal Procedure can be stultified for a period of 20 years or 30 years needs further discussion as observed in Sangeet, which did not deal with the constitutional power. This side issue does not arise in the present case also, and is therefore, not being discussed.

Information from the National Crime Records Bureau:

67. Quite apart from the above discussion, assuming a case can be identified as the rarest of rare, the chapter does not end with awarding the death sentence. From the information available in the annual reports published by the National Crime Records Bureau (NCRB) and which is freely available on the internet, it appears that between 2001 and 2011 (both years included) death sentence has been awarded to as many as 1455 persons and one person (Dhananjoy Chatterjee) was executed in 2004. However, death sentence has been converted to life imprisonment during the same period in respect of 4321 persons. The figures (of death sentence awarded and commuted) obviously do not match. It is unlikely that all the commutations were by the Executive. Perhaps (it is not at all clear) the NCRB has also taken into account cases where the death sentence awarded by the Trial Court has not been confirmed by the High Court and those cases where the High Court has confirmed the sentence, but it has been modified by this Court or cases where a plea of not guilty has been accepted by this Court for want of conclusive evidence. Whatever the reason, there is an obvious and glaring mismatch.

68. There are also an extraordinarily high number of “commutations” granted in Delhi. In 2005 Delhi granted 919 commutations; in 2006 Delhi granted 806 commutations; and in 2007 Delhi granted 726 commutations. A correspondingly high number of death sentences were not awarded in Delhi in the relevant years, but it is difficult to say whether there were such a large number of pending death sentences awaiting execution. There appears to be an inexplicable error in this regard also but even if the commutations granted in Delhi are taken out of calculation, there would still be a baffling mismatch in figures. The commutation figures given by the NCRB may not be entirely reliable, but in any case there is no reason to doubt the correctness of the number of death sentences awarded, which too is rather high, making it unclear whether death penalty is really being awarded only in the rarest of rare cases.

69. The details mentioned above, as obtained from a study of the publications of the NCRB, are compiled in the following chart:

DETAILS OF DEATH SENTENCE DURING 2001 TO 2011

70. The significance of these figures is that even though the Courts have awarded death penalty in appropriate cases applying the rarest of rare principle, the death sentence has been commuted in many of them. The reasons for commuting the death sentence by the Executive are not in the public domain and therefore it is not possible to know what weighed with the Executive in commuting the death sentence of each convict. Was the reason for commutation that the crime and the criminal did not fall in the category of rarest of rare and if so what was the basis for coming to this conclusion when the competent Court has come to a different conclusion?

71. It seems to me that though the Courts have been applying the rarest of rare principle, the Executive has taken into consideration some factors not known to the Courts for converting a death sentence to imprisonment for life. It is imperative, in this regard, since we are dealing with the lives of people (both the accused and the rape-murder victim) that the Courts lay down a jurisprudential basis for awarding the death penalty and when the alternative is unquestionably foreclosed so that the prevailing uncertainty is avoided. Death penalty and its execution should not become a matter of uncertainty nor should converting a death sentence into imprisonment for life become a matter of chance. Perhaps the Law Commission of India can resolve the issue by examining whether death penalty is a deterrent punishment or is retributive justice or serves an incapacitative goal.

72. It does prima facie appear that two important organs of the State that is the Judiciary and the Executive are treating the life of convicts convicted of an offence punishable with death with different standards. While the standard applied by the Judiciary is that of the rarest of rare principle (however subjective or judgecentric it may be in its application) the standard applied by the Executive in granting commutation is not known. Therefore, it could happen (and might well have happened) that in a given case the Sessions Judge, the High Court and the Supreme Court are unanimous in their view in awarding the death penalty to a convict, any other option being unquestionably foreclosed, but the Executive has taken a diametrically opposite opinion and has commuted the death penalty. This may also need to be considered by the Law Commission of India.

Conclusion:

73. While agreeing with my learned Brother Justice Radhakrishnan that the conviction of the appellant should be upheld, but keeping the above discussion in mind, I endorse the direction that all the sentences awarded to the appellant should run consecutively.

74. The appeals are disposed of accordingly.

……………………..J.
(Madan B. Lokur)

New Delhi;
April 25, 2013

The post Shankar Kisanrao Khade vs State Of Maharashtra appeared first on B&B Associates LLP.

Deepali Gundu Surwase …Appellant
versus
Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and others …Respondents

J U D G M E N T

G.S. SINGHVI, J.

1. Leave granted.

2. The question which arises for consideration in this appeal filed against order dated 28.9.2011 passed by the learned Single Judge of the Bombay High Court, Aurangabad Bench is whether the appellant is entitled to wages for the period during which she was forcibly kept out of service by the management of the school.

3. The appellant was appointed as a teacher in Nandanvan Vidya Mandir (Primary School) run by a trust established and controlled by Bagade family. The grant in aid given by the State Government, which included rent for the building was received by Bagade family because the premises belonged to one of its members, namely, Shri Dulichand. In 2005, the Municipal Corporation of Aurangabad raised a tax bill of Rs.79,974/- by treating the property as commercial. Thereupon, the Headmistress of the school, who was also President of the Trust, addressed a letter to all the employees including the appellant requiring them to contribute a sum of Rs.1500/- per month towards the tax liability. The appellant refused to comply with the dictate of the Headmistress. Annoyed by this, the management issued as many as 25 memos to the appellant and then placed her under suspension vide letter dated 14.11.2006. She submitted reply to each and every memorandum and denied the allegations. Education Officer (Primary) Zilla Parishad, Aurangabad did not approve the appellant’s suspension. However, the letter of suspension was not revoked. She was not even paid subsistence allowance in terms of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short, ‘the Rules’) framed under Section 16 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, ‘the Act’).

4. Writ Petition No.8404 of 2006 filed by the appellant questioning her suspension was disposed of by the Division Bench of the Bombay High Court vide order dated 21.3.2007 and it was declared that the appellant will be deemed to have rejoined her duties from 14.3.2007 and entitled to consequential benefits in terms of Rule 37(2)(f) of the Rules and that the payment of arrears shall be the liability of the management. Paragraphs 4 and 5 of that order read as under:

“4. Considering the order we intend passing it is not necessary for us to deal with the rival contentions of the parties. That will be for the Inquiry Committee to decide. In view of the apprehensions expressed regarding the inquiry being dragged on unnecessarily, it is necessary to safeguard the interests of the petitioner as well.

5. In the circumstances, Rule is made absolute in the following terms.

i) The Inquiry Committee shall conclude the proceedings and pass a final order on or before 31.5.2007.

ii) The petitioner shall be at liberty to have her case represented by Smt.Sulbha Panditrao Munde.

iii) The petitioner/her representative shall appear, in the first instance, before the Inquiry Committee at 11 a.m. on 26.3.2007 and, thereafter, as directed by the Inquiry Committee.

iv) The petitioner is entitled to the benefit of Rule 37 (2) (f) of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, as specified in paragraph 11 of the order and judgment of the Division Bench in the case of Hamid Khan Nayyar s/o Habib Khan v. Education Officer, Amravati and others (supra). The petitioner shall be deemed to have rejoined the duties from 14.3.2007 and entitled to consequential benefits that would flow out of Rule 37 (2) (f). The payment of arrears shall be the liability of the management.”

5. In the meanwhile, the management issued notice dated 28.12.2006 for holding an inquiry against the appellant under Rules 36 and 37 of the Rules. The appellant nominated Smt. Sulbha Panditrao Munde to appear before the Inquiry Committee, but Smt. Munde was not allowed to participate in the inquiry proceedings. The Inquiry Committee conducted ex parte proceedings and the management terminated the appellant’s service vide order dated 15.6.2007.

6. The appellant challenged the aforesaid order under Section 9 of the Act. In the appeal filed by her on 25.6.2007, the appellant pleaded that the action taken by the management was arbitrary and violative of the principles of natural justice. She further pleaded that the sole object of the inquiry was to teach her a lesson for refusing to comply with the illegal demand of the management.

7. The management contested the appeal and pleaded that the action taken by it was legal and justified because the appellant had been found guilty of misconduct. It was further pleaded that the inquiry was held in consonance with the relevant rules and the principles of natural justice.

8. By an order dated 20.6.2009, the Presiding Officer of the School Tribunal, Aurangabad Division (for short, ‘the Tribunal’) allowed the appeal and quashed the termination of the appellant’s service. He also directed the management to pay full back wages to the appellant. The Tribunal considered the appellant’s plea that she had not been given reasonable opportunity of hearing and observed:

“Now let us test for what purpose and for what subject inquiry was initiated in what manner inquiry was conducted, which witnesses have been examined and how injury was conclude. I have already demonstrate above that starting point against this appellant is calling upon staff members collection of fund for payment for tax dues page 54 of appeal memo. All the staff members have objected this joining hands together page 58 of appeal. Fact finding committee have submitted its report Exhibit

62. Report of Education Officer (Primary) in regard to the proposal of appointment of Administrator page 71. If we see issuance of memo by Head Mistress, I observe that language which is used to revengeful against this appellant. It seems that attitude towards this appellant was of indecent and I also observed that behaviour of the appellant have also instigated Head Mistress for the same. Language is of law standard use in the letter by imputing defamed language and humiliation to the appellant.

If we see memos, we can find that some memos are of silly count i.e. late for 3 minutes page 95, query about the examination page 93 to which appellant have replied that when no examinations were held where is the question of getting inquiry by the parents page 96. In regard to the memo, in regard to the black dress on 15.08.2005 and 06.12.2005 and about issuance of show cause notice for issuing false affidavit page 143.

We can find attitude of this Head Master towards appellant.

Three minute late is very silly ground query about examination which was not at all held, wearing of black dress during course of argument there was argument on photograph, however, no such photograph is submitted on record. In this regard during course of argument, it was brought to my notice that on 15.08.2005 this appellant have wore black colour blouse, however, she had wore white sari on her person. First thing is that there is no such rule about so called colour that it is bogus colour or this colour is being used for protesting or otherwise. How and why Head Mistress and Management have made issue of this black colour blouse I cannot understand. I have gone through the whole record but I do not find any circular issued by Head Mistress by which all the staff members have been called upon to come in dress for this function. So in the absence of such circular, how it can be an issue of inquiry.

Another aspect is that one of the staff Vijay Gedam have lodged appeal before this Tribunal in favour of him, this appellant and one another staff teacher have swear affidavit. I do not find how this issue can be a subject of inquiry that appellant have swear false affidavit. Is Head Mistress having authority to say that this appellant have swear false affidavit. Here I find 5 to 6 staff members have supported this appellant, at the same time some teachers have also come forward this Head Mistress. They were in dilemma to whom they may favour. So over all attitude of this Head Mistress against this appellant is revengeful with ulterior motive to drag this appellant in inquiry proceeding.

I gone through the statement recorded of the witnesses. I find that all the statements are general in nature and it is repetition of statement of first witness Surajkumar Khobragade.

Nobody has made statement specifically with date and incident.

The deposition is a general statement which is already in memos which have been issue by the Head Mistress to the appellant.

More important in this regard that no cross examination of witnesses by the appellant. In the statement of witnesses, I do not find any endorsement that appellant was absent or appellant is present, she declined to cross examine or otherwise. These statements have been concluded that witnesses have stated before inquiry committee, that is all. If we read first statement of first witnesses we can find carry forward of the statement for other witnesses by some minor change in the statement.

One crucial aspect in regard to the proceeding is that this Head Mistress who had issued more than 25 bulky memos against this appellant and on whose complaint or grievances this inquiry was initiate, have not been examined by the inquiry committee. I am surprised that why such a key witness is not examined. In reply this appellant have put her grievances against Head Mistress. By taking advantage of this Chief Executive Officer of the inquiry i.e. Sonia Bagale called upon written explanation from Head Mistress to cover up complaint and grievances of the appellant.

It is on 21.05.2007, page 777, 778 and 781 by this explanation again one issues have been brought which were not subject matter of the chargesheet. So it is serious lacuna in this inquiry proceeding that witnesses Head Mistress have not been examined.” The Tribunal then adverted to the charges levelled against the appellant and held:

“It is also demonstrated in the course of argument that permission was not granted as per letter dated 22.11.2006 of Education Officer. So naturally suspension of this appellant was in question. It is another aspect that on persuasion appellant have been paid subsistence allowance. However, remaining subsistence allowance till today is not paid to the appellant.

So it can be another ground for vitiating inquiry.

204(1)Mh. L.J. page 676 in case of Awdhesh Narayan K. Singh vs.

Adarsh Vidya Mandir Trust and another, (a) Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981, R.R. 35 and 33- Failure to obtain prior permission of Authority under Rule 33(1) before suspending an employee does not affect the action of suspension pending inquiry- If prior permission is obtained, Rule 35(3) is attracted and the suspended employee is entitled for subsistence allowance under the scheme of payment through Cooperative Banks for a period of four months after which period the payment is to be made by the Management. If an employee is suspended without obtaining prior approval of the Education Authority, payment of subsistence allowance for entire period has to be made by the Management. So if considered all these aspects, we can find that appeal deserves to be allowed by quashing inquiry held against appellant.” The Tribunal finally took cognizance of the fact that the appellant was kept under suspension from 14.11.2006 and she was not gainfully employed after the termination of her service and declared that she is entitled to full back wages. The operative portion of the order passed by the Tribunal reads as under:

“1) Appeal is allowed.

2) The termination order dated 15.06.2007 issued by Respondent on the basis of inquiry report is hereby quashed and set aside.

3) The appellant is hereby reinstated on her original post and Respondents are directed to reinstate the appellant in her original post as Asst. Teacher Nandanvan Vidyamandir (Primary School), Aurangabad with full back wages from the date of termination till date of reinstatement.

4) The Respondent Nos.1 to 3 are hereby directed to deposit full back wages i.e. pay and allowances of the appellant from the date of her termination till the date of her reinstatement in the service, within 45 days in this Tribunal from the date of this order.

5) The appellant will be entitled to withdraw the above amounts from this Tribunal immediately after it is deposited.”

9. The management challenged the order of the Tribunal in Writ Petition No. 10032 of 2010. The learned Single Judge examined the issues raised by the management in detail and expressed his agreement with the Tribunal that the decision of the management to suspend the appellant and to terminate her service were vitiated due to violation of the statutory provisions and the principles of natural justice. While commenting upon the appellant’s suspension, the learned Single Judge observed:

“It has also come on record that the appellant was suspended by suspension letter dated 14.11.2006. The appellant made representation to the Education Officer. The Education Officer refused to approve suspension of the appellant as per his letter dated 22.11.2006. From careful perusal of the material brought on record, I do not find that, there arose extraordinary situation to suspend services of the appellant without taking prior approval of the Education Officer, as contemplated under Rules. No doubt, the Management can suspend services of an employee without prior approval of the Education Officer, but for that there should be extraordinary situation. However, in the facts of this case, nothing is brought on record to suggest that there was extraordinary situation existing so as to take emergent steps to suspend services of the appellant without taking prior approval of the Education Officer (Primary), Zilla Parishad, Aurangabad. It is also not in dispute that the Education Officer declined to approve suspension of the appellant as per his letter dated 22.11.2006.

Therefore, taking into consideration facts involved in the present case, conclusion is reached by the School Tribunal that the Management of the petitioner-school/Institution is dominated by the members of Bagade family.” The learned Single Judge then considered the finding recorded by the Tribunal that the Inquiry Committee was not validly constituted and observed:

“In the present case, admittedly petitioners herein did not file any application or made prayer for reconstituting the inquiry committee and to proceed further for inquiry by newly reconstituted committee. On the contrary, from reading the reply filed by the petitioners herein before the School Tribunal, it is abundantly clear that the petitioners went on justifying constitution of the Committee and stating in the reply that no fault can be attributed with the constitution of the Committee.

Therefore, in absence of such prayer, the School Tribunal proceeded further and dealt with all the charges which were levelled against the appellant i.e. Respondent No.3 herein.

Therefore, in my opinion, further adjudication by the Tribunal on merits of the matter cannot be said to be beyond jurisdiction or powers of the School Tribunal. In the facts of this case, as it is apparent from the findings recorded by the School Tribunal, that as the case in hand is a case of victimization and petitioner Management as well as the Inquiry Committee having joined hands against the delinquent right from the beginning, no premium can be put over the action of the petitioner-Management and Inquiry Committee who threw the principles of natural justice in the air. It would be a travesty of justice, in these circumstances, to allow the petitioner- Management to once again hold inquiry in such a extreme case.” However, the learned Single Judge set aside the direction given by the School Tribunal for payment of back wages by relying upon the judgments in J.K. Synthetics Ltd. v. K. P. Agrawal and another (2007) 2 SCC 433 and Zilla Parishad, Gadchiroli and another v. Prakash s/o Nagorao Thete and another 2009 (4) Mh. L. J. 628. The observations made by the learned Single Judge on this issue are extracted below:

“Bare perusal of above reproduced para 40 of the judgment of the School Tribunal would make it abundantly clear that, the advocate for the appellant, in the course of arguments, argued that the appellant was kept under suspension from 14.11.2006 till the appeal is finally heard. It was argued that the appellant was not gainfully employed anywhere during the period of suspension and termination and therefore, she is entitled to back wages from the date of her suspension. The Tribunal has observed that no rebuttal argument by other side. Therefore, it appears that, the School Tribunal has considered only oral submissions of the Counsel appearing for the appellant, in the absence of any specific pleadings, prayers and evidence for payment of back wages. There was no application or pleadings before the School Tribunal on oath by the appellant stating that she was not gainfully employed from the date of suspension till reinstatement. Therefore, in my considered opinion, finding recorded by the Tribunal in clauses 3 to 5 of the operative order, in respect of payment of back wages, cannot be sustained, in the light of law laid down by this Court and Honourable Supreme Court in respect of payment of back wages.”

10. Learned counsel for the appellant relied upon the judgments of this Court in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited [1978] INSC 157; (1979) 2 SCC 80, Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi (1980) 4 SCC 443, Mohan Lal v. Management of Bharat Electronics Limited (1981) 3 SCC 225, Workmen of Calcutta Dock Labour Board and another v. Employers in relation to Calcutta Dock Labour Board and others (1974) 3 SCC 216 and argued that the impugned order is liable to be set aside because while the appellant had pleaded that she was not gainfully employed, no evidence was produced by the management to prove the contrary. Learned counsel submitted that the order passed by the Tribunal was in consonance with the provisions of the Act and the Rules and the High Court committed serious error by setting aside the direction given by the Tribunal to the management to pay back wages to the appellant on the specious ground that she had not led evidence to prove her non-employment during the period she was kept away from the job. He emphasized that in view of the embargo contained in Rule 33(3), the appellant had not taken up any other employment and argued that she could not have been deprived of full pay and allowances for the entire period during which she was forcibly kept out of job.

11. Learned counsel for the respondent supported the impugned order and argued that the High Court did not commit any error by setting aside the direction given by the Tribunal for payment of back wages to the appellant because she had neither pleaded nor any evidence was produced that during the period of suspension and thereafter she was not employed elsewhere.

Learned counsel relied upon the judgments in M.P. State Electricity Board v. Jarina Bee (2003) 6 SCC 141, Kendriya Vidyalaya Sangathan v. S.C. Sharma (2005) 2 SCC 363, U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey (2006) 1 SCC 479, J. K. Synthetics Ltd. v. K.P. Agrawal and another (supra), The Depot Manager, A.P.S.R.T.C. v. P. Jayaram Reddy (2009) 2 SCC 681, Novartis India Ltd. v. State of West Bengal and others (2009) 3 SCC 124, Metropolitan Transport Corporation v. V. Venkatesan (2009) 9 SCC 601 and Jagbir Singh v. Haryana State Agriculture Marketing Board and another (2009) 15 SCC 327 and argued that the rule of reinstatement with back wages propounded in 1960’s and 70’s has been considerably diluted and the Courts/Tribunal cannot ordain payment of back wages as a matter of course in each and every case of wrongful termination of service. Learned counsel submitted that even if the Court/Tribunal finds that the termination, dismissal or discharge of an employee is contrary to law or is vitiated due to violation of the principles of natural justice, an order for payment of back wages cannot be issued unless the employee concerned not only pleads, but also proves that he/she was not employed gainfully during the intervening period.

12. We have considered the respective arguments. The Act was enacted by the legislature to regulate the recruitment and conditions of service of employees in certain private schools in the State and to instill a sense of security among such employees so that they may fearlessly discharge their duties towards the pupil, the institution and the society. Another object of the Act is to ensure that the employees become accountable to the management and contribute their might for improving the standard of education. Section 2 of the Act contains definitions of various words and terms appearing in other sections. Section 8 provides for constitution of one or more Tribunals to be called “School Tribunal” and also defines the jurisdiction of each Tribunal. Section 9(1) contains a non obstante clause and provides for an appeal by any employee of a private school against his/her dismissal or removal from service or whose services are otherwise terminated or who is reduced in rank. The employee, who is superseded in the matter of promotion is also entitled to file an appeal. Section 10 enumerates general powers and procedure of the Tribunal and Section 11 empowers the Tribunal to give appropriate relief and direction. Section 12 also contains a non obstante clause and makes the decision of the Tribunal final and binding on the employee and the management. Of course, this is subject to the power of judicial review vested in the High Court and this Court. Section 16(1) empowers the State Government to make rules for carrying out the purposes of the Act. Section 16(2) specifies the particular matters on which the State Government can make rules. These include Code of Conduct and disciplinary matters and the manner of conducting inquiries.

13. Rule 35 of the Rules empower the management to suspend an employee with the prior approval of the competent authority. The exercise of this power is hedged with the condition that the period of suspension shall not exceed four months without prior permission of the concerned authority. The suspended employee is entitled to subsistence allowance under the scheme of payment (Rule 34) through Co-operative Bank for a period of four months.

If the period of suspension exceeds four months, then subsistence allowance has to be paid by the management. In case, the management suspends an employee without obtaining prior approval of the competent authority, then it has to pay the subsistence allowance till the completion of inquiry. A suspended employee can be denied subsistence allowance only in the contingencies enumerated in clauses (3) and (4) of Rule 33, i.e., when he takes up private employment or leaves headquarter without prior approval of the Chief Executive Officer.

14. For the sake of reference, Sections 2(7), 9, 10, 11 and 16 of the Act are reproduced below:

“2(7) “Employee,” means any member of the teaching and non teaching staff of a recognized school and includes Shikshan Sevak;

9. Right of appeal to Tribunal to employees of a private school.

(1) Notwithstanding anything contained in any law or contract for the time being in force, any employee in a private school,- (a) who is dismissed or removed or whose services are otherwise terminated or who is reduced in rank, by the order passed by the Management; or (b) who is superseded by the Management while making an appointment to any post by promotion;

and who is aggrieved, shall have a right to appeal and may appeal against any such order or supersession to the Tribunal constituted under section 8.

Provided that, no such appeal shall lie to the Tribunal in any case where the matter has already been decided by a Court of competent jurisdiction or is pending before such Court, on the appointed date or where the order of dismissal, removal, otherwise termination of service or reduction in rank was passed by the Management at any time before the 1st July, 1976.

(2) to (4) xxxx xxxx xxxx 10. General Powers and procedure of Tribunal.

(1) For the purpose of admission, hearing and disposal of appeals, the Tribunal shall have the same powers as are vested in an Appellate Court under the Code of Civil Procedure, 1908, and shall have the power to stay the operation of any order against which an appeal is made on such conditions as it may think fit to impose and such other powers as are conferred on it by or under this Act.

(2)The Presiding Officer of the Tribunal shall decide the procedure to be followed by the Tribunal for the disposal of its business including the place or places at which and the hours during which it shall hold its sitting.

(3) xxxx xxxx xxxx

11. Powers of Tribunal to give appropriate relief and direction.

(1) On receipt of an appeal, where the Tribunal, after giving reasonable opportunity to both parties of being heard, is satisfied that the appeal does not pertain to any of the matters specified in section 9 or is not maintainable by it, or there is no sufficient ground for interfering with the order of the Management it may dismiss the appeal.

(2) Where the Tribunal, after giving reasonable opportunity to both parties of being heard, decides in any appeal that the order of dismissal, removal, otherwise termination of service or reduction in rank was in contravention of any law (including any rules made under this Act), contract or conditions of service for the time being in force or was otherwise illegal or improper, the Tribunal may set aside the order of the Management, partially or wholly, and direct the Management,- (a) to reinstate the employee on the same post or on a lower post as it may specify;

(b) to restore the employee to the rank which he held before reduction or to any lower rank as it may specify;’ (c) to give arrears of emoluments to the employee for such period as it may specify;

(d) to award such lesser punishment as it may specify in lieu of dismissal, removal, otherwise termination of service or reduction in rank, as the case may be;

(e) where it is decided not to reinstate the employee or in any other appropriate case, to give to the employee twelve months’ salary (pay and allowances, if any) if he has been in the services of the school for ten years or more and six months salary (pay and allowances, if any) if he has been in service of the school for less then ten year, by way or compensation, regard being had to loss of employment and possibility of getting or not getting suitable employment thereunder, as it may specify; or (f) to give such other relief to the employee and to observe such other conditions as it may specify, having regard to the circumstances of the case.

(3) It shall be lawful for the Tribunal to recommend to State Government that any dues directed by it to be paid to the employee, or in case of an order to reinstate the employee an emoluments to be paid to the employee till he is reinstated, may be deducted from the grant due and payable, or that may become due and payable in future, to the Management and be paid to the employee directly.

(4) Any direction issued by the Tribunal under sub-section (2) shall be communicated to both parties in writing and shall be complied by the Management within the period specified in the direction, which shall not be less than thirty days from the date of its receipt by the Management.

16. Rules.

(1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :- (a) to (c) xx xx xx xx (d) the other conditions of service of such employees including leave, superannuation, re-employment and promotions;

(e) the duties of such employees and Code of Conduct and disciplinary matters;

(f) the manner of conducting enquiries;

(g) xx xx xx xx (2A) to (4) xx xx xx ”

15. Rules 33 (1) to (4), 34(1), (2) and 35, which have bearing on the decision of this appeal read as under:

“33. Procedure for inflicting major penalties.

(1) If an employee is alleged to be guilty of any of the grounds specified in sub-rule (5) of rule 28 and if there is reason to believe that in the event of the guilt being proved against him, he is likely to be reduced in rank or removed from service, the Management shall first decide whether to hold an inquiry and also to place the employees under suspension and if it decides to suspend the employee, it shall authorise the Chief Executive Officer to do so after obtaining the permission of the Education Officer or, in the case of the Junior College of Educational and Technical High Schools, of the Deputy Director.

Suspension shall not be ordered unless there is a prima facie case for his removal or there is reason to believe that his continuance in active service is likely to cause embarrassment or to hamper the investigation of the case. If the Management decides to suspend the employee, such employee shall, subject to the provisions of sub-rule (5) stand suspended with effect from the date of such orders.

(2) If the employee tenders resignation while under suspension and during the pendency of the inquiry such resignation shall not be accepted.

(3) An employee under suspension shall not accept any private employment.

(4) The employee under suspension shall not leave the headquarters during the period of suspension without the prior approval of the Chief Executive Officer. If such employee is the Head and also the Chief Executive Officer, he shall obtain the necessary prior approval of the President.

34. Payment of subsistence allowance.

(1) (a) A subsistence allowance at an amount equal to the leave salary which the employee would have drawn if he had been on leave on half pay and in addition, Dearness allowance based on such leave salary shall be payable to the employee under suspension.

(b) Where the period of suspension exceeds 4 months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first 4 months as follows, namely :- (i) The amount of subsistence allowance may be increased by a suitable amount not exceeding 50 per cent of the subsistence allowance admissible during the period of first 4 months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons, to be recorded in writing, not directly attributable to the employee.

(ii) The amount of subsistence allowance may be reduced by a suitable amount, not exceeding 50 per cent of the subsistence allowance admissible during the period of the first 4 months, if in the opinion of the said authority the period of suspension has been prolonged due to reasons, to be recorded in writing directly attributable to the employee.

(iii) The rate of Dearness allowance shall be based on the increased or on the Decreased amount of subsistence allowance, as the case may be, admissible under sub-clauses (i) and (ii).

(2) Other compensatory allowances, if any, of which the employee was in receipt on the date of suspension shall also be payable to the employee under suspension to such extent and subject to such conditions as the authority suspending the employee may direct:

Provided that the employee shall not be entitled to the compensatory allowances unless the said authority is satisfied that the employee continues to meet the expenditure for which such allowances are granted:

Provided further that, when an employee is convicted by a competent court and sentenced to imprisonment, the subsistence allowance shall be reduced to a nominal amount of rupee one per month with effect from the date of such conviction and he shall continue to draw the same till the date of his removal or reinstatement by the competent authority :

Provided also that, if an employee is acquitted by the appellate court and no further appeal or a revision application to a higher court is preferred and pending, he shall draw the subsistence allowance at the normal rate from the date of acquittal by the appellate court till the termination of the inquiry if any, initiated under these rules :

Provided also that, in cases falling under sub-rules (1) and (2) above, where the management refuses to pay or fails to start and continue payment of subsistence allowance and other compensatory allowances, if any, to an employee under suspension, payment of the same shall be made by the Education Officer or Deputy Director, as the case may be, who shall deduct an equal amount from the non-salary grant that may be due and payable or may become due and payable to the school.

35. Conditions of suspension.

(1) In cases where the Management desires to suspend an employee, he shall be suspended only with the prior approval of the appropriate authority mentioned in rule 33.

(2) The period of suspension shall not exceed four months except with the prior permission of such appropriate authority.

(3) In case where the employee is suspended with prior approval he shall be paid subsistence allowance under the scheme of payment through Co-operative Banks for a period of four months only and thereafter, the payment shall be made by the Management concerned.

(4) In case where the employee is suspended by the Management without obtaining prior approval of the appropriate authority as aforesaid, the payment of subsistence allowance even during the first four months of suspension and for further period thereafter till the completion of inquiry shall be made by the Management itself.

(5) The subsistence allowance shall not be withheld except in cases of breach of provisions of sub-rules (3) or (4) of rule 33.”

16. The word “reinstatement” has not been defined in the Act and the Rules. As per Shorter Oxford English Dictionary, Vol.II, 3rd Edition, the word “reinstate” means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word “reinstatement” means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edition, the word “reinstate” means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word “reinstatement” means establishing in former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam Webster Dictionary, the word “reinstate” means to place again (as in possession or in a former position), to restore to a previous effective state. As per Black’s Law Dictionary, 6th Edition, “reinstatement” means ‘to reinstall, to re- establish, to place again in a former state, condition, or office? To restore to a state or position from which the object or person had been removed.’

17. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latter’s source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments.

Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments.

18. A somewhat similar issue was considered by a three Judge Bench in Hindustan Tin Works Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd.

(supra) in the context of termination of services of 56 employees by way of retrenchment due to alleged non-availability of the raw material necessary for utilization of full installed capacity by the petitioner. The dispute raised by the employees resulted in award of reinstatement with full back wages. This Court examined the issue at length and held:

“It is no more open to debate that in the field of industrial jurisprudence a declaration can be given that the termination of service is bad and the workman continues to be in service. The spectre of common law doctrine that contract of personal service cannot be specifically enforced or the doctrine of mitigation of damages does not haunt in this branch of law. The relief of reinstatement with continuity of service can be granted where termination of service is found to be invalid. It would mean that the employer has taken away illegally the right to work of the workman contrary to the relevant law or in breach of contract and simultaneously deprived the workman of his earnings. If thus the employer is found to be in the wrong as a result of which the workman is directed to be reinstated, the employer could not shirk his responsibility of paying the wages which the workman has been deprived of by the illegal or invalid action of the employer. Speaking realistically, where termination of service is questioned as invalid or illegal and the workman has to go through the gamut of litigation, his capacity to sustain himself throughout the protracted litigation is itself such an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the law’s proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmen’s demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages. Articles 41 and 43 of the Constitution would assist us in reaching a just conclusion in this respect. By a suitable legislation, to wit, the U.P. Industrial Disputes Act, 1947, the State has endeavoured to secure work to the workmen.

In breach of the statutory obligation the services were terminated and the termination is found to be invalid; the workmen though willing to do the assigned work and earn their livelihood, were kept away therefrom. On top of it they were forced to litigation up to the Apex Court now they are being told that something less than full back wages should be awarded to them. If the services were not terminated the workmen ordinarily would have continued to work and would have earned their wages. When it was held that the termination of services was neither proper nor justified, it would not only show that the workmen were always willing to serve but if they rendered service they would legitimately be entitled to the wages for the same. If the workmen were always ready to work but they were kept away therefrom on account of an invalid act of the employer, there is no justification for not awarding them full back wages which were very legitimately due to them.

In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the Rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular.” (emphasis supplied) After enunciating the above-noted principles, this Court took cognizance of the appellant’s plea that the company is suffering loss and, therefore, the workmen should make some sacrifice and modified the award of full back wages by directing that the workmen shall be entitled to 75 % of the back wages.

19. Another three Judge Bench considered the same issue in Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi (supra) and observed:

“Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too. But there may be exceptional circumstances which make it impossible or wholly inequitable vis-à-vis the employer and workmen to direct reinstatement with full back wages. For instance, the industry might have closed down or might be in severe financial doldrums; the workmen concerned might have secured better or other employment elsewhere and so on. In such situations, there is a vestige of discretion left in the court to make appropriate consequential orders. The court may deny the relief of reinstatement where reinstatement is impossible because the industry has closed down. The court may deny the relief of award of full back wages where that would place an impossible burden on the employer. In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted.” (emphasis supplied) 20. The principle laid down in Hindustan Tin Works Private Limited v.

Employees of Hindustan Tin Works Private Limited (supra) was reiterated in P.G.I. of Medical Education & Research, Chandigarh v. Raj Kumar (2001) 2 SCC 54. That case makes an interesting reading. The respondent had worked as helper for 11 months and 18 days. The termination of his service was declared by Labour Court, Chandigarh as retrenchment and was invalidated on the ground of non-compliance of Section 25-F of the Industrial Disputes Act, 1947. As a corollary, the Labour Court held that the respondent was entitled to reinstatement with continuity of service. However, only 60% back wages were awarded. The learned Single Judge of the Punjab and Haryana High Court did not find any error apparent in the award of the Labour Court but ordered payment of full back wages. The two Judge Bench of this Court noted the guiding principle laid down in the case of Hindustan Tin Works Private Limited and observed:

“While it is true that in the event of failure in compliance with Section 25-F read with Section 25(b) of the Industrial Disputes Act, 1947 in the normal course of events the Tribunal is supposed to award the back wages in its entirety but the discretion is left with the Tribunal in the matter of grant of back wages and it is this discretion, which in Hindustan Tin Works (P) Ltd. case this Court has stated must be exercised in a judicial and judicious manner depending upon the facts and circumstances of each case. While, however, recording the guiding principle for the grant of relief of back wages this Court in Hindustan case, itself reduced the back wages to 75%, the reason being the contextual facts and circumstances of the case under consideration.

The Labour Court being the final court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that effect. In the event, however the finding of fact is based on any misappreciation of evidence, that would be deemed to be an error of law which can be corrected by a writ of certiorari. The law is well settled to the effect that finding of the Labour Court cannot be challenged in a proceeding in a writ of certiorari on the ground that the relevant and material evidence adduced before the Labour Court was insufficient or inadequate though, however, perversity of the order would warrant intervention of the High Court. The observation, as above, stands well settled since the decision of this Court in Syed Yakoob v. K.S. Radhakrishnan [1963] INSC 201; AIR 1964 SC 477.

Payment of back wages having a discretionary element involved in it has to be dealt with, in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety. As regards the decision of this Court in Hindustan Tin Works (P) Ltd. be it noted that though broad guidelines, as regards payment of back wages, have been laid down by this Court but having regard to the peculiar facts of the matter, this Court directed payment of 75% back wages only.

The issue as raised in the matter of back wages has been dealt with by the Labour Court in the manner as above having regard to the facts and circumstances of the matter in the issue, upon exercise of its discretion and obviously in a manner which cannot but be judicious in nature. In the event, however, the High Court’s interference is sought for, there exists an obligation on the part of the High Court to record in the judgment, the reasoning before however denouncing a judgment of an inferior Tribunal, in the absence of which, the judgment in our view cannot stand the scrutiny of otherwise being reasonable. There ought to be available in the judgment itself a finding about the perversity or the erroneous approach of the Labour Court and it is only upon recording therewith the High Court has the authority to interfere. Unfortunately, the High Court did not feel it expedient to record any reason far less any appreciable reason before denouncing the judgment.”

21. The aforesaid judgment became a benchmark for almost all the subsequent judgments. In Hindustan Motors Ltd. v. Tapan Kumar Bhattacharya (2002) 6 SCC 41, the Fifth Industrial Tribunal, West Bengal had found that the finding of guilty recorded in the departmental inquiry was not based on any cogent and reliable evidence and passed an award for reinstatement of the workman with other benefits. The learned Single Judge allowed the writ petition filed by the employer and quashed the award of the Industrial Tribunal. The Division Bench of the High Court reversed the order of the learned Single Judge. This Court issued notice to the respondent limited to the question of back wages. After taking cognizance of the judgments in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra) and P.G.I. of Medical Education & Research, Chandigarh v. Raj Kumar (supra), the Court observed:

“As already noted, there was no application of mind to the question of back wages by the Labour Court. There was no pleading or evidence whatsoever on the aspect whether the respondent was employed elsewhere during this long interregnum.

Instead of remitting the matter to the Labour Court or the High Court for fresh consideration at this distance of time, we feel that the issue relating to payment of back wages should be settled finally. On consideration of the entire matter in the light of the observations referred to supra in the matter of awarding back wages, we are of the view that in the context of the facts of this particular case including the vicissitudes of long-drawn litigation, it will serve the ends of justice if the respondent is paid 50% of the back wages till the date of reinstatement. The amount already paid as wages or subsistence allowance during the pendency of the various proceedings shall be deducted from the back wages now directed to be paid. The appellant will calculate the amount of back wages as directed herein and pay the same to the respondent within three months, failing which the amount will carry interest at the rate of 9% per annum. The award of the Labour Court which has been confirmed by the Division Bench of the High Court stands modified to this extent. The appeal is disposed of on the above terms. There will be no order as to costs.” (emphasis supplied)

22. In Indian Railway Construction Co. Ltd. v. Ajay Kumar (2003) 4 SCC 579, this Court was called upon to consider whether the services of the respondent could be terminated by dispensing with the requirement of inquiry enshrined in Indian Railway Construction Co. Ltd. (Conduct, Discipline and Appeal) Rules, 1981 read with Article 311(2) of the Constitution. The learned Single Judge of the Delhi High Court held that there was no legal justification to dispense with the inquiry and ordered reinstatement of the workman with back wages. The Division Bench upheld the order of the learned Single Judge. The two Judge Bench of this Court referred to the judgments in Hindustan Tin Works Private Limited v.

Employees of Hindustan Tin Works Private Limited (supra) and P.G.I. of Medical Education & Research, Chandigarh v. Raj Kumar (supra) and held that payment of Rs.15 lakhs in full and final settlement of all claims of the employee will serve the ends of justice.

23. In M.P. State Electricity Board v. Jarina Bee (Smt.) (supra), the two Judge Bench referred to P.G.I. of Medical Education & Research, Chandigarh v. Raj Kumar (supra) and held that it is always incumbent upon the Labour Court to decide the question relating to quantum of back wages by considering the evidence produced by the parties.

24. In Kendriya Vidyalaya Sangathan v. S. C. Sharma (supra), the Court found that the services of the respondent had been terminated under Rule 19(ii) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 on the charge that he was absconding from duty. The Central Administrative Tribunal held that no material was available with the disciplinary authority which could justify invoking of Rule 19(ii) and the order of dismissal could not have been passed without holding regular inquiry in accordance with the procedure prescribed under the Rules. The Division Bench of the Punjab and Haryana High Court did not accept the appellants’ contention that invoking of Rule 19(ii) was justified merely because the respondent did not respond to the notices issued to him and did not offer any explanation for his willful absence from duty for more than two years. The High Court agreed with the Tribunal and dismissed the writ petition. The High Court further held that even though the respondent- employee had not pleaded or produced any evidence that after dismissal from service, he was not gainfully employed, back wages cannot be denied to him.

This Court relied upon some of the earlier judgments and held that in view of the respondent’s failure to discharge the initial burden to show that he was not gainfully employed, there was ample justification to deny him back wages, more so because he had absconded from duty for a long period of two years.

25. In General Manager, Haryana Roadways v. Rudhan Singh (2005) 5 SCC 591, the three Judge Bench considered the question whether back wages should be awarded to the workman in each and every case of illegal retrenchment. The factual matrix of that case was that after finding the termination of the respondent’s service as illegal, the Industrial Tribunal- cum-Labour Court awarded 50% back wages. The writ petition filed by the appellant was dismissed by the Punjab and Haryana High Court. This Court set aside award of 50% back wages on the ground that the workman had raised the dispute after a gap of 2 years and 6 months and the Government had made reference after 8 months. The Court then proceeded to observe:

“There is no rule of thumb that in every case where the Industrial Tribunal gives a finding that the termination of service was in violation of Section 25-F of the Act, entire back wages should be awarded. A host of factors like the manner and method of selection and appointment i.e. whether after proper advertisement of the vacancy or inviting applications from the employment exchange, nature of appointment, namely, whether ad hoc, short term, daily wage, temporary or permanent in character, any special qualification required for the job and the like should be weighed and balanced in taking a decision regarding award of back wages. One of the important factors, which has to be taken into consideration, is the length of service, which the workman had rendered with the employer. If the workman has rendered a considerable period of service and his services are wrongfully terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and the qualification possessed by him he may not be in a position to get another employment. However, where the total length of service rendered by a workman is very small, the award of back wages for the complete period i.e. from the date of termination till the date of the award, which our experience shows is often quite large, would be wholly inappropriate.

Another important factor, which requires to be taken into consideration is the nature of employment. A regular service of permanent character cannot be compared to short or intermittent daily-wage employment though it may be for 240 days in a calendar year.”

26. In U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey (supra), the two Judge Bench observed:

“No precise formula can be laid down as to under what circumstances payment of entire back wages should be allowed.

Indisputably, it depends upon the facts and circumstances of each case. It would, however, not be correct to contend that it is automatic. It should not be granted mechanically only because on technical grounds or otherwise an order of termination is found to be in contravention of the provisions of Section 6-N of the U.P. Industrial Disputes Act.”

27. The Court also reiterated the rule that the workman is required to plead and prima facie prove that he was not gainfully employed during the intervening period.

28. In Depot Manager, Andhra Pradesh State Road Transport Corporation v.

P. Jayaram Reddy (supra), this Court noted that the services of the respondent were terminated because while seeking fresh appointment, he had suppressed the facts relating to earlier termination on the charges of grave misconduct. The Labour Court did not find any fault with the procedure adopted by the employer but opined that dismissal was very harsh, disproportionate and unjustified and accordingly exercised power under Section11-A of the Industrial Disputes Act, 1947 for ordering reinstatement with back wages. This Court referred to the judgments in P.G.I. of Medical Education & Research, Chandigarh v. Raj Kumar (supra) and J.K. Synthetics Ltd. v. K. P. Agrawal (supra) and held that the Labour Court was not justified in awarding back wages.

29. In Novartis India Limited v. State of West Bengal (supra), the services of the workman were terminated on the charge of not joining the place of transfer. The Labour Court quashed the termination of services on the ground of violation of the rules of natural justice and passed an award of reinstatement of the workman with back wages. The learned Single Judge of the High Court dismissed the writ petition filed by the appellant but the letters patent appeal was allowed by the Division Bench on the ground that the State of West Bengal was not the appropriate Government for making the reference. The special leave petition filed by the workman was allowed by this Court and the Division Bench of the High Court was asked to decide the letters patent appeal on merits. In the second round, the Division Bench dismissed the appeal. This Court referred to shift in the approach regarding payment of back wages and observed:

“There can, however, be no doubt whatsoever that there has been a shift in the approach of this Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premise that the burden to show that the workman was gainfully employed during interregnum period was on the employer. This Court, in a number of decisions opined that grant of back wages is not automatic. The burden of proof that he remained unemployed would be on the workmen keeping in view the provisions contained in Section 106 of the Evidence Act, 1872.

This Court in the matter of grant of back wages has laid down certain guidelines stating that therefor several factors are required to be considered including the nature of appointment;

the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 14 and 16 of the Constitution of India in cases of public employment, etc.

It is also trite that for the purpose of grant of back wages, conduct of the workman concerned also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right.”

30. In Metropolitan Transport Corporation v. V. Venkatesan (supra), the Court noted that after termination of service from the post of conductor, the respondent had acquired Law degree and started practice as an advocate. The Industrial Tribunal declared the termination of the respondent’s service by way of removal as void and inoperative on the ground that the Corporation had not applied for approval under Section 33(2)(b) of the Industrial Disputes Act. At one stage, the High Court stayed the order of the Industrial Tribunal but finally dismissed the writ petition. The workman filed application under Section 33-C(2) of the Industrial Disputes Act claiming full back wages. The Labour Court allowed the claim of the respondent to the extent of Rs.6,54,766/-. The writ petition filed against the order of the Labour Court was dismissed by the learned Single Judge and the appeal was dismissed by the Division Bench.

This Court referred to the earlier precedents and observed:

“First, it may be noticed that in the seventies and eighties, the directions for reinstatement and the payment of full back wages on dismissal order having been found invalid would ordinarily follow as a matter of course. But there is change in the legal approach now.

We recently observed in Jagbir Singh v. Haryana State Agriculture Mktg. Board that in the recent past there has been a shift in the legal position and in a long line of cases, this Court has consistently taken the view that the relief of reinstatement with back wages is not automatic and may be wholly inappropriate in a given fact situation even though the termination of an employee is held to be in contravention of the prescribed procedure.

Secondly, and more importantly, in view of the fact that the respondent was enrolled as an advocate on 12-12-2000 and continued to be so until the date of his reinstatement (15-6- 2004), in our thoughtful consideration, he cannot be held to be entitled to full back wages. That the income received by the respondent while pursuing legal profession has to be treated as income from gainful employment does not admit of any doubt. In North-East Karnataka RTC v. M. Nagangouda this Court held that “gainful employment” would also include self-employment. We respectfully agree.

It is difficult to accept the submission of the learned Senior Counsel for the respondent that he had no professional earnings as an advocate and except conducting his own case, the respondent did not appear in any other case. The fact that he resigned from service after 2-3 years of reinstatement and re- engaged himself in legal profession leads us to assume that he had some practice in law after he took sanad on 12-12-2000 until 15-6-2004, otherwise he would not have resigned from the settled job and resumed profession of glorious uncertainties.”

31. In Jagbir Singh v. Haryana State Agriculture Marketing Board (supra), this Court noted that as on the date of retrenchment, respondent No.1 had worked for less than 11 months and held:

“It would be, thus, seen that by a catena of decisions in recent time, this Court has clearly laid down that an order of retrenchment passed in violation of Section 25-F although may be set aside but an award of reinstatement should not, however, be automatically passed. The award of reinstatement with full back wages in a case where the workman has completed 240 days of work in a year preceding the date of termination, particularly, daily wagers has not been found to be proper by this Court and instead compensation has been awarded. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.

Therefore, the view of the High Court that the Labour Court erred in granting reinstatement and back wages in the facts and circumstances of the present case cannot be said to suffer from any legal flaw. However, in our view, the High Court erred in not awarding compensation to the appellant while upsetting the award of reinstatement and back wages.” 32. We may now deal with the judgment in J.K. Synthetics Ltd. v. K.P.

Agrawal and another (supra) in detail. The facts of that case were that the respondent was dismissed from service on the basis of inquiry conducted by the competent authority. The Labour Court held that the inquiry was not fair and proper and permitted the parties to adduce evidence on the charges levelled against the respondent. After considering the evidence, the Labour Court gave benefit of doubt to the respondent and substituted the punishment of dismissal from service with that of stoppage of increments for two years. On an application filed by the respondent, the Labour Court held that the respondent was entitled to reinstatement with full back wages for the period of unemployment. The learned Single Judge dismissed the writ petition and the Division Bench declined to interfere by observing that the employer had willfully violated the order of the Labour Court.

On an application made by the respondent under Section 6(6) of the U.P.

Industrial Disputes Act, 1947, the Labour Court amended the award. This Court upheld the power of the Labour Court to amend the award but did not approve the award of full back wages. After noticing several precedents to which reference has been made hereinabove, the two Judge Bench observed:

“There is also a misconception that whenever reinstatement is directed, “continuity of service” and “consequential benefits” should follow, as a matter of course. The disastrous effect of granting several promotions as a “consequential benefit” to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualised while granting consequential benefits automatically.

Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether “continuity of service” and/or “consequential benefits” should also be directed.

Coming back to back wages, even if the court finds it necessary to award back wages, the question will be whether back wages should be awarded fully or only partially (and if so the percentage). That depends upon the facts and circumstances of each case. Any income received by the employee during the relevant period on account of alternative employment or business is a relevant factor to be taken note of while awarding back wages, in addition to the several factors mentioned in Rudhan Singh and Uday Narain Pandey. Therefore, it is necessary for the employee to plead that he was not gainfully employed from the date of his termination. While an employee cannot be asked to prove the negative, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Then the burden will shift to the employer. But there is, however, no obligation on the terminated employee to search for or secure alternative employment. Be that as it may.

But the cases referred to above, where back wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the Court found that the termination was motivated or amounted to victimisation. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force.

When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement;

and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc.

But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back wages, etc. will be the same as those applied in the cases of an illegal termination.

In this case, the Labour Court found that a charge against the employee in respect of a serious misconduct was proved. It, however, felt that the punishment of dismissal was not warranted and therefore, imposed a lesser punishment of withholding the two annual increments. In such circumstances, award of back wages was neither automatic nor consequential. In fact, back wages was not warranted at all.”

33. The propositions which can be culled out from the aforementioned judgments are:

i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.

iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.

iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.

v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer’s obligation to pay the same. The Courts must always be kept in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.

vi) In a number of cases, the superior Courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The Courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer, i.e., the employee or workman, who can ill afford the luxury of spending money on a lawyer with certain amount of fame.

Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works Private Limited v. Employees of Hindustan Tin Works Private Limited (supra).

vii) The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal (supra) that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law.

This part of the judgment is also against the very concept of reinstatement of an employee/workman.

34. Reverting to the case in hand, we find that the management’s decision to terminate the appellant’s service was preceded by her suspension albeit without any rhyme or reason and even though the Division Bench of the High Court declared that she will be deemed to have rejoined her duty on 14.3.2007 and entitled to consequential benefits, the management neither allowed her to join the duty nor paid wages. Rather, after making a show of holding inquiry, the management terminated her service vide order dated 15.6.2007. The Tribunal found that action of the management to be wholly arbitrary and vitiated due to violation of the rules of natural justice.

The Tribunal further found that the allegations levelled against the appellant were frivolous. The Tribunal also took cognizance of the statement made on behalf of the appellant that she was not gainfully employed anywhere and the fact that the management had not controverted the same and ordered her reinstatement with full back wages.

35. The learned Single Judge agreed with the Tribunal that the action taken by the management to terminate the appellant’s service was per se illegal but set aside the award of back wages by making a cryptic observation that she had not proved the factum of non-employment during the intervening period. While doing so, the learned Single Judge not only overlooked the order passed by the Division Bench in Writ Petition No.8404/2006, but also Rule 33 which prohibits an employee from taking employment elsewhere. Indeed, it was not even the pleaded case of the management that during the period of suspension, the appellant had left the Headquarter without prior approval of the Chief Executive Officer and thereby disentitling her from getting subsistence allowance or that during the intervening period she was gainfully employed elsewhere.

36. In view of the above discussion, we hold that the learned Single Judge of the High Court committed grave error by interfering with the order passed by the Tribunal for payment of back wages, ignoring that the charges levelled against the appellant were frivolous and the inquiry was held in gross violation of the rules of natural justice.

37. In the result, the appeal is allowed, the impugned order is set aside and the order passed by the Tribunal is restored. The management shall pay full back wages to the appellant within four months from the date of receipt of copy of this order failing which it shall have to pay interest at the rate of 9% per annum from the date of the appellant’s suspension till the date of actual reinstatement.

38. It is also made clear that in the event of non-compliance of this order, the management shall make itself liable to be punished under the Contempt of Courts Act, 1971.

…………………………..J.
(G.S. SINGHVI)
…………………………..J.
(V. GOPALA GOWDA)

New Delhi;
August 12, 2013.

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1794 OF 2013
(Arising out of Special Leave Petition (Civil) No. 4782 of 2007)
K. SRINIVAS RAO … APPELLANT
Versus
D.A. DEEPA … RESPONDENT

J U D G M E N T

(SMT.) RANJANA PRAKASH DESAI, J.

1. Leave granted.

2. This appeal, by special leave, has been filed by the appellant-husband, being aggrieved by the judgment and order dated 8/11/2006 passed by the Andhra Pradesh High Court in Civil Miscellaneous Appeal No.797/03, setting aside the decree of divorce granted in his favour.

3. The appellant-husband is working as Assistant Registrar in the Andhra Pradesh High Court. The marriage between the appellant-husband and the respondent-wife was solemnized on 25/4/1999 as per Hindu rites and customs. Unfortunately, on the very next day disputes arose between the elders on both sides which resulted in their abusing each other and hurling chappals at each other. As a consequence, on 27/4/1999, the newly married couple got separated without consummation of the marriage and started living separately. On 4/10/1999, the respondent-wife lodged a criminal complaint against the appellant-husband before the Women Protection Cell alleging inter alia that the appellant-husband is harassing her for more dowry. This complaint is very crucial to this case. We shall advert to it more in detail a little later. Escalated acrimony led to complaints and counter complaints. The respondent-wife filed a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the Family Court, Secunderabad. The appellant-husband filed a counter-claim seeking dissolution of marriage on the ground of cruelty and desertion under Section 13(1)(i-a) and (b) of the Hindu Marriage Act, 1955.

4. The Family Court while dismissing the petition for restitution of conjugal rights and granting decree of divorce inter alia held that the respondent-wife stayed in the appellant-husband’s house only for a day, she admitted that she did not have any conversation with anyone and hence any amount of oral evidence adduced by her will not support her plea that she was harassed and driven out of the house; that the story that the appellant-husband made a demand of dowry of Rs.10,00,000/- is false; that by filing false complaint against the appellant-husband and his family, alleging offence under Section 498-A of the IPC in the Metropolitan Magistrate Court, Hyderabad and by filing complaints against the appellant-husband in the High Court where he is working, the respondent-wife caused mental cruelty to the appellant-husband and that reunion was not possible. The Family Court directed the appellant-husband to repay Rs.80,000/- given by the respondent-wife’s father to him with interest at 8% per annum from the date of the marriage till payment.

5. By the impugned judgment the High Court allowed the appeal carried by the respondent-wife against the said judgment and set aside the decree of divorce granted in favour of the appellant-husband. The High Court inter alia observed that the finding of the Family Court that lodging a complaint with the police against the appellant-husband amounts to cruelty is perverse because it is not a ground for divorce under the Hindu Marriage Act, 1955. The High Court further held that the appellant-husband and the respondentwife did not live together for a long time and, therefore, the question of their treating each other with cruelty does not arise. According to the High Court, the conclusion that the respondent-wife caused mental cruelty to the appellanthusband is based on presumptions and assumptions.

6. Mr. Jayanth Muth Raj, learned counsel for the appellanthusband assailed the conduct of the respondent-wife and submitted that it disentitles her from getting any relief from this Court. Counsel took us through the complaint lodged by the respondent-wife with the Superintendent of Police, Women Protection Cell, Hyderabad, making defamatory allegations against the mother of the appellant-husband and drew our attention to the various legal proceedings initiated by her against the appellant-husband and his family. Counsel submitted that she also lodged complaints with the High Court asking for the removal of the appellant-husband from his job. Counsel submitted that by lodging such false complaints the respondent-wife caused extreme mental cruelty to the appellant-husband. Counsel submitted that the High Court fell into a grave error in observing that because the respondent-wife did not live with the appellanthusband for long she could not have caused mental cruelty to him. Counsel submitted that this observation is erroneous and is contrary to the law laid down by this Court. False and defamatory allegations made in the pleadings can also cause mental cruelty. Counsel submitted that the marriage has irretrievably broken down and, therefore, it is necessary to dissolve it by a decree of divorce. In support of his submissions counsel placed reliance on G.V.N. Kameswara Rao vs. G. Jabilli1 , Parveen Mehta vs. Inderjit Mehta2 , Vijayakumar R. Bhate vs. Neela Vijayakumar Bhate3 , Durga Prasanna Tripathy vs. Arundhati Tripathy4 , Naveen Kohli vs. Neelu Kohli5 and Samar Ghosh vs. Jaya Ghosh6.

7. Mr. D. Rama Krishna Reddy, learned counsel for the respondent-wife, on the other hand, submitted that the father of the respondent-wife had given Rs.80,000/- and 15 tolas of gold as dowry to the appellant-husband’s family. However, they demanded additional cash of Rs.10,00,000/-. Because this demand could not be met, the respondent-wife and her family was humiliated and ill-treated. Therefore, the parents of the respondent-wife had to return to their house along with her immediately after marriage. The father of the respondent-wife made efforts to talk to the appellant husband’s family, but, they did not respond to his efforts. They persisted with their demands and, therefore, the respondent-wife had no alternative but to lodge complaint against them under Section 498-A of the IPC before the Metropolitan Magistrate, Hyderabad. The appellant-husband thereafter gave a false assurance that he will not harass her and, therefore, she withdrew the complaint and went to the matrimonial house. However, the approach of the appellanthusband and his family did not change. She had to therefore renew her complaint. Counsel submitted that only because of the obstinate and uncompromising attitude of the appellant-husband and his family that the respondent-wife had to take recourse to court proceedings. Counsel submitted that the respondent-wife values the matrimonial tie. She wants to lead a happy married life with the appellant-husband. She had, therefore, filed a petition for restitution of conjugal rights which should have been allowed by the Family Court. Counsel submitted that after properly evaluating all the circumstances the High Court has rightly set aside the decree of divorce and granted a decree of restitution of conjugal rights. The High Court’s judgment, therefore, merits no interference.

8. The matrimonial dispute started with a quarrel between the elders of both sides in which initially the appellanthusband and the respondent-wife were not involved. The ego battle of the elders took an ugly turn. Parties were dragged to the court and the inevitable happened. The relations between the two families got strained. With a fond hope that we could bring about a settlement we requested the counsel to talk to the parties and convey our wishes that they should bury the hatchet and start living together. We also tried to counsel them in the court. The respondent-wife appears to be very keen to go back to the matrimonial home and start life afresh, but the appellant-husband is adamant. He conveyed to us through his counsel that by filing repeated false complaints against him and his family the respondent-wife has caused extreme cruelty to them and therefore it will not be possible to take her back. In view of this we have no option but to proceed with the case.

9. The High Court has taken a view that since the appellant-husband and the respondent-wife did not stay together, there is no question of their causing cruelty to each other. The High Court concluded that the conclusion drawn by the Family Court that the respondent-wife caused mental cruelty to the appellant-husband is erroneous. We are unable to agree with the High Court.

10. Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, a marriage can be dissolved by a decree of divorce on a petition presented either by the husband or the wife on the ground that the other party has, after solemnization of the marriage, treated the petitioner with cruelty. In a series of judgments this Court has repeatedly stated the meaning and outlined the scope of the term ‘cruelty’. Cruelty is evident where one spouse has so treated the other and manifested such feelings towards her or him as to cause in her or his mind reasonable apprehension that it will be harmful or injurious to live with the other spouse. Cruelty may be physical or mental.

11. In Samar Ghosh this Court set out illustrative cases where inference of ‘mental cruelty’ can be drawn. This list is obviously not exhaustive because each case presents it’s own peculiar factual matrix and existence or otherwise of mental cruelty will have to be judged after applying mind to it. We must quote the relevant paragraph of Samar Ghosh. We have reproduced only the instances which are relevant to the present case.

“101. No uniform standard can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of “mental cruelty”. The instances indicated in the succeeding paragraphs are only illustrative and not exhaustive:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. (ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party.
(iii) xxx xxx xxx
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty.
(v) A sustained course of abusive and humiliating treatment calculated to torture, discommode or render miserable life of the spouse.
(vi) Sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty.
(vii) xxx xxx xxx
(viii) xxx xxx xxx
(ix) xxx xxx xxx
(x) The married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. The ill conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty.
(xi) xxx xxx xxx
(xii) xxx xxx xxx
(xiii) xxx xxx xxx
(xiv) Where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.”
It is pertinent to note that in this case the husband and wife had lived separately for more than sixteen and a half years. This fact was taken into consideration along with other facts as leading to the conclusion that matrimonial bond had been ruptured beyond repair because of the mental cruelty caused by the wife. Similar view was taken in Naveen Kohli.

12. In V. Bhagat v. D. Bhagat7 in the divorce petition filed by the husband the wife filed written statement stating that the husband was suffering from mental hallucination, that his was a morbid mind for which he needs expert psychiatric treatment and that he was suffering from ‘paranoid disorder’. In cross-examination her counsel put several questions to the husband suggesting that several members of his family including his grandfather were lunatics. This court held that these assertions cannot but constitute mental cruelty of such a nature that the husband cannot be asked to live with the wife thereafter. Such pleadings and questions it was held, are bound to cause immense mental pain and anguish to the husband. In Vijaykumar Bhate disgusting accusations of unchastity and indecent familiarity with a neighbour were made in the written statement. This Court held that the allegations are of such quality, magnitude and consequence as to cause mental pain, agony and suffering amounting to the reformulated concept of cruelty in matrimonial law causing profound and lasting disruption and driving the wife to feel deeply hurt and reasonably apprehend that it would be dangerous to live with her husband. In Naveen Kohli the respondent-wife got an advertisement issued in a national newspaper that her husband was her employee. She got another news item issued cautioning his business associates to avoid dealing with him. This was treated as causing mental cruelty to the husband.

13. In Naveen Kohli the wife had filed several complaints and cases against the husband. This Court viewed her conduct as a conduct causing mental cruelty and observed that the finding of the High Court that these proceedings could not be taken to be such which may warrant annulment of marriage is wholly unsustainable.

14. Thus, to the instances illustrative of mental cruelty noted in Samar Ghosh, we could add a few more. Making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse.

15. We shall apply the above principles to the present case. Firstly, it is necessary to have a look at the legal proceedings initiated by both sides against each other. The facts on record disclose that after the marriage, due to some dispute which arose between the elders, both sides abused and virtually attacked each other. The respondent-wife was taken by her parents to their house. According to the respondent-wife, her father made efforts to bring about an amicable settlement but the other side did not respond favourably and, therefore, on 4/10/1999 she lodged a complaint with the Superintendent of Police, Women Protection Cell against the appellant-husband and members of his family. In our opinion, this complaint is, to a large extent, responsible for widening the rift between the parties. In this complaint, after alleging ill-treatment and harassment for dowry, it is alleged that mother of the appellant-husband asked the respondent-wife to sleep with the father of the appellant-husband. When she was cross-examined in the Family Court during the hearing of her petition for restitution of conjugal rights the respondent-wife admitted that she had lodged the complaint. PW-2 her mother, in her crossexamination stated that though they had asked her not to lodge the complaint, the respondent-wife lodged it. She told them that she had lodged the complaint because the appellant-husband was not listening to her. Thus, it appears that this complaint was lodged out of frustration and anger and was a reaction to the appellant-husband’s refusal to live with her. It was, perhaps, felt by her that because of the pressure of such a complaint the appellant-husband would take her back to his house. Far from helping the respondent-wife, the complaint appears to have caused irreparable harm to her. It increased the bitterness. Perhaps, the respondent-wife was misguided by someone. But, such evidence is not on record. Even in this court, this complaint appears to us to be a major factor amongst others impeding settlement. Pursuant to the said complaint, Crime No.8/2000 was registered by C.I.D., Hyderabad, in the Metropolitan Magistrate (Mahila Court), Hyderabad against the appellant-husband and his family under Section 498-A of the IPC. It is the respondent-wife’s case that the appellanthusband gave an assurance before the police that he will not harass her. She, therefore, withdrew the complaint. The police then filed a closure report. According to the respondent-wife, the appellant-husband did not abide by the promise made by him and, therefore, she filed a protest petition. The Magistrate Court, Hyderabad, then, took cognizance of the case and renumbered the case as C.C.No.62/2002.

16. In the meantime, the respondent-wife filed O.P.No.88/2001 in the Family Court, Secunderabad, for restitution of conjugal rights. The appellant-husband filed a counter claim for divorce on 27/12/2002. The Family Court dismissed the petition for restitution of conjugal rights and allowed the counter claim for divorce filed by the appellanthusband. The respondent-wife challenged the Family Court judgment in the High Court. On 8/12/2006 the High Court reversed the Family Court’s order and allowed the petition for restitution of conjugal rights. The present appeal is filed by the appellant-husband against the said judgment.

17. According to the respondent-wife, on 17/9/2007 when she, along with her mother, came out of the court after a case filed by her against the appellant-husband was adjourned, the appellant-husband beat her mother and kicked her on her stomach. Both of them received injuries. She, therefore, filed complaint for the offence punishable under Section 324 of the IPC against the appellant-husband (C.C.No. 79/2009). It may be stated here that on 19/10/2009 the appellant-husband was acquitted in this case.

18. On 24/6/2008 the judgment was delivered by Additional Chief Metropolitan Magistrate, Hyderabad in C.C.No. 62/2002. The appellant-husband was convicted under Section 498-A of the IPC and was sentenced to undergo six months simple imprisonment. He and his parents were acquitted of the offences under the Dowry Prohibition Act. His parents were acquitted of the offence under Section 498- A of the IPC. After this judgment the respondent-wife and her parents filed a complaint in the High Court saying that since the appellant-husband was convicted he should be dismissed from service. Similar letters were sent to the High Court by the maternal uncle of the respondent-wife.

19. On 14/7/2008 the appellant-husband filed Criminal Appeal No.186/2008 challenging his conviction under Section 498-A of the IPC before the Metropolitan Sessions Judge. It is pertinent to note that the respondent-wife filed Criminal Appeal No.1219/2008 in the High Court questioning the acquittal of the appellant-husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable under Section 498-A of the IPC. This appeal is pending in the High Court. Not being content with this, the respondent-wife filed Criminal Revision Case No.1560/2008 in the High Court seeking enhancement of punishment awarded to the appellant-husband for offence under Section 498-A of the IPC.

20. According to the appellant-husband on 6/12/2009 the brother of the respondent-wife came to their house and attacked his mother. His mother filed a complaint and the police registered a complaint under Section 354 of the IPC. The brother of the respondent-wife also lodged a complaint and an offence came to be registered. Both the cases are pending.

21. On 29/6/2010 Criminal Appeal No. 186/2010 filed by the appellant-husband challenging his conviction for the offence under Section 498-A of the IPC was allowed by the Metropolitan Sessions Judge and he was acquitted. The respondent-wife has filed criminal appeal in the High Court challenging the said acquittal which is pending.

22. We need to now see the effect of the above events. In our opinion, the first instance of mental cruelty is seen in the scurrilous, vulgar and defamatory statement made by the respondent-wife in her complaint dated 4/10/1999 addressed to the Superintendent of Police, Women Protection Cell. The statement that the mother of the appellant-husband asked her to sleep with his father is bound to anger him. It is his case that this humiliation of his parents caused great anguish to him. He and his family were traumatized by the false and indecent statement made in the complaint. His grievance appears to us to be justified. This complaint is a part of the record. It is a part of the pleadings. That this statement is false is evident from the evidence of the mother of the respondent-wife, which we have already quoted. This statement cannot be explained away by stating that it was made because the respondent-wife was anxious to go back to the appellant-husband. This is not the way to win the husband back. It is well settled that such statements cause mental cruelty. By sending this complaint the respondentwife has caused mental cruelty to the appellant-husband.

23. Pursuant to this complaint, the police registered a case under Section 498-A of the IPC. The appellant-husband and his parents had to apply for anticipatory bail, which was granted to them. Later, the respondent-wife withdrew the complaint. Pursuant to the withdrawal, the police filed a closure report. Thereafter, the respondent-wife filed a protest petition. The trial court took cognizance of the case against the appellant-husband and his parents (CC No. 62/2002). What is pertinent to note is that the respondentwife filed criminal appeal in the High Court challenging the acquittal of the appellant-husband and his parents of the offences under the Dowry Prohibition Act and also the acquittal of his parents of the offence punishable under Section 498-A of the IPC. She filed criminal revision seeking enhancement of the punishment awarded to the appellanthusband for the offence under Section 498-A of the IPC in the High Court which is still pending. When the criminal appeal filed by the appellant-husband challenging his conviction for the offence under Section 498-A of the IPC was allowed and he was acquitted, the respondent-wife filed criminal appeal in the High Court challenging the said acquittal. During this period respondent-wife and members of her family have also filed complaints in the High Court complaining about the appellant-husband so that he would be removed from the job. The conduct of the respondentwife in filing a complaint making unfounded, indecent and defamatory allegation against her mother-in-law, in filing revision seeking enhancement of the sentence awarded to the appellant-husband, in filing appeal questioning the acquittal of the appellant-husband and acquittal of his parents indicates that she made all attempts to ensure that he and his parents are put in jail and he is removed from his job. We have no manner of doubt that this conduct has caused mental cruelty to the appellant-husband.

24. In our opinion, the High Court wrongly held that because the appellant-husband and the respondent-wife did not stay together there is no question of the parties causing cruelty to each other. Staying together under the same roof is not a pre-condition for mental cruelty. Spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof. In a given case, while staying away, a spouse can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating number of judicial proceedings making the other spouse’s life miserable. This is what has happened in this case.

25. It is also to be noted that the appellant-husband and the respondent-wife are staying apart from 27/4/1999. Thus, they are living separately for more than ten years. This separation has created an unbridgeable distance between the two. As held in Samar Ghosh, if we refuse to sever the tie, it may lead to mental cruelty.

26. We are also satisfied that this marriage has irretrievably broken down. Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree.

27. In V. Bhagat this Court noted that divorce petition was pending for eight years and a good part of the lives of both the parties had been consumed in litigation, yet the end was not in sight. The facts were such that there was no question of reunion, the marriage having irretrievably broken down. While dissolving the marriage on the ground of mental cruelty this Court observed that irretrievable breakdown of marriage is not a ground by itself, but, while scrutinizing the evidence on record to determine whether the grounds alleged are made out and in determining the relief to be granted the said circumstance can certainly be borne in mind. In Naveen Kohli, where husband and wife had been living separately for more than 10 years and a large number of criminal proceedings had been initiated by the wife against the husband, this Court observed that the marriage had been wrecked beyond the hope of salvage and public interest and interest of all concerned lies in the recognition of the fact and to declare defunct de jure what is already defunct de facto. It is important to note that in this case this Court made a recommendation to the Union of India that the Hindu Marriage Act, 1955 be amended to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce.

28. In the ultimate analysis, we hold that the respondentwife has caused by her conduct mental cruelty to the appellant-husband and the marriage has irretrievably broken down. Dissolution of marriage will relieve both sides of pain and anguish. In this Court the respondent-wife expressed that she wants to go back to the appellant-husband, but, that is not possible now. The appellant-husband is not willing to take her back. Even if we refuse decree of divorce to the appellant-husband, there are hardly any chances of the respondent-wife leading a happy life with the appellanthusband because a lot of bitterness is created by the conduct of the respondent-wife.

29. In Vijay Kumar, it was submitted that if the decree of divorce is set aside, there may be fresh avenues and scope for reconciliation between parties. This court observed that judged in the background of all surrounding circumstances, the claim appeared to be too desolate, merely born out of despair rather than based upon any real, concrete or genuine purpose or aim. In the facts of this case we feel the same.

30. While we are of the opinion that decree of divorce must be granted, we are alive to the plight of the respondent-wife. The appellant-husband is working as an Assistant Registrar in the Andhra Pradesh High Court. He is getting a good salary. The respondent-wife fought the litigation for more than 10 years. She appears to be entirely dependent on her parents and on her brother, therefore, her future must be secured by directing the appellant-husband to give her permanent alimony. In the facts and circumstance of this case, we are of the opinion that the appellant-husband should be directed to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs only) to the respondent-wife as and by way of permanent alimony. In the result, the impugned judgment is quashed and set aside. The marriage between the appellant-husband – K. Srinivas Rao and the respondent-wife – D.A. Deepa is dissolved by a decree of divorce. The appellant-husband shall pay to the respondent-wife permanent alimony in the sum of Rs.15,00,000/-, in three instalments. The first instalment of Rs.5,00,000/- (Rupees Five Lakhs only) should be paid on 15/03/2013 and the remaining amount of Rs.10,00,000/- (Rupees Ten Lakhs only) should be paid in instalments of Rs.5,00,000/- each after a gap of two months i.e. on 15/05/2013 and 15/07/2013 respectively. Each instalment of Rs.5,00,000/- be paid by a demand draft drawn in favour of the respondent-wife “D.A. Deepa”.

31. Before parting, we wish to touch upon an issue which needs to be discussed in the interest of victims of matrimonial disputes. Though in this case, we have recorded a finding that by her conduct, the respondent-wife has caused mental cruelty to the appellant-husband, we may not be understood, however, to have said that the fault lies only with the respondent-wife. In matrimonial disputes there is hardly any case where one spouse is entirely at fault. But, then, before the dispute assumes alarming proportions, someone must make efforts to make parties see reason. In this case, if at the earliest stage, before the respondent-wife filed the complaint making indecent allegation against her mother-in-law, she were to be counselled by an independent and sensible elder or if the parties were sent to a mediation centre or if they had access to a pre-litigation clinic, perhaps the bitterness would not have escalated. Things would not have come to such a pass if, at the earliest, somebody had mediated between the two. It is possible that the respondent-wife was desperate to save the marriage. Perhaps, in desperation, she lost balance and went on filing complaints. It is possible that she was misguided. Perhaps, the appellant-husband should have forgiven her indiscretion in filing complaints in the larger interest of matrimony. But, the way the respondent-wife approached the problem was wrong. It portrays a vindictive mind. She caused extreme mental cruelty to the appellanthusband. Now the marriage is beyond repair.

32. Quite often, the cause of the misunderstanding in a matrimonial dispute is trivial and can be sorted. Mediation as a method of alternative dispute resolution has got legal recognition now. We have referred several matrimonial disputes to mediation centres. Our experience shows that about 10 to 15% of matrimonial disputes get settled in this Court through various mediation centres. We, therefore, feel that at the earliest stage i.e. when the dispute is taken up by the Family Court or by the court of first instance for hearing, it must be referred to mediation centres. Matrimonial disputes particularly those relating to custody of child, maintenance, etc. are preeminently fit for mediation. Section 9 of the Family Courts Act enjoins upon the Family Court to make efforts to settle the matrimonial disputes and in these efforts, Family Courts are assisted by Counsellors. Even if the Counsellors fail in their efforts, the Family Courts should direct the parties to mediation centres, where trained mediators are appointed to mediate between the parties. Being trained in the skill of mediation, they produce good results.

33. The idea of pre-litigation mediation is also catching up. Some mediation centres have, after giving wide publicity, set up “Help Desks” at prominent places including facilitation centres at court complexes to conduct pre-litigation mediation. We are informed that in Delhi Government Mediation and Conciliation Centres, and in Delhi High Court Mediation Centre, several matrimonial disputes are settled. These centres have a good success rate in pre-litigation mediation. If all mediation centres set up pre-litigation desks/clinics by giving sufficient publicity and matrimonial disputes are taken up for pre-litigation settlement, many families will be saved of hardship if, at least, some of them are settled.

34. While purely a civil matrimonial dispute can be amicably settled by a Family Court either by itself or by directing the parties to explore the possibility of settlement through mediation, a complaint under Section 498-A of the IPC presents difficulty because the said offence is not compoundable except in the State of Andhra Pradesh where by a State amendment, it has been made compoundable. Though in Ramgopal & Anr. v. State of Madhya Pradesh & Anr.8 , this Court requested the Law Commission and the Government of India to examine whether offence punishable under Section 498-A of the IPC could be made compoundable, it has not been made compoundable as yet. The courts direct parties to approach mediation centres where offences are compoundable. Offence punishable under Section 498-A being a non-compoundable offence, such a course is not followed in respect thereof. This Court has always adopted a positive approach and encouraged settlement of matrimonial disputes and discouraged their escalation. In this connection, we must refer to the relevant paragraph from G.V. Rao v. L.H.V. Prasad & Ors. 9 , where the complaint appeared to be the result of matrimonial dispute, while refusing to interfere with the High Court’s order quashing the complaint, this court made very pertinent observations, which read thus:

“12. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their “cases” in different courts.”

In B.S. Joshi & Ors. v. State of Haryana & Anr.10 , after referring to the above observations, this Court stated that the said observations are required to be kept in view by courts while dealing with matrimonial disputes and held that complaint involving offence under Section 498-A of the IPC can be quashed by the High Court in exercise of its powers under Section 482 of the Code if the parties settle their dispute. Even in Gian Singh v. State of Punjab & Anr.11, this Court expressed that certain offences which overwhelmingly and predominantly bear civil flavour like those arising out of matrimony, particularly relating to dowry, etc. or the family dispute and where the offender and the victim had settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may quash the criminal proceedings if it feels that by not quashing the same, the ends of justice shall be defeated.

35. We, therefore, feel that though offence punishable under Section 498-A of the IPC is not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation. This is, obviously, not to dilute the rigour, efficacy and purport of Section 498-A of the IPC, but to locate cases where the matrimonial dispute can be nipped in bud in an equitable manner. The judges, with their expertise, must ensure that this exercise does not lead to the erring spouse using mediation process to get out of clutches of the law. During mediation, the parties can either decide to part company on mutually agreed terms or they may decide to patch up and stay together. In either case for the settlement to come through, the complaint will have to be quashed. In that event, they can approach the High Court and get the complaint quashed. If however they chose not to settle, they can proceed with the complaint. In this exercise, there is no loss to anyone. If there is settlement, the parties will be saved from the trials and tribulations of a criminal case and that will reduce the burden on the courts which will be in the larger public interest. Obviously, the High Court will quash the complaint only if after considering all circumstances it finds the settlement to be equitable and genuine. Such a course, in our opinion, will be beneficial to those who genuinely want to accord a quietus to their matrimonial disputes. We would, however, like to clarify that reduction of burden of cases on the courts will, however, be merely an incidental benefit and not the reason for sending the parties for mediation. We recognize ‘mediation’ as an effective method of alternative dispute resolution in matrimonial matters and that is the reason why we want the parties to explore the possibility of settlement through mediation in matrimonial disputes.

36. We, therefore, issue directions, which the courts dealing with the matrimonial matters shall follow:
(a) In terms of Section 9 of the Family Courts Act, the Family Courts shall make all efforts to settle the matrimonial disputes through mediation. Even if the Counsellors submit a failure report, the Family Courts shall, with the consent of the parties, refer the matter to the mediation centre. In such a case, however, the Family Courts shall set a reasonable time limit for mediation centres to complete the process of mediation because otherwise the resolution of the disputes by the Family Court may get delayed. In a given case, if there is good chance of settlement, the Family Court in its discretion, can always extend the time limit.
(b) The criminal courts dealing with the complaint under Section 498-A of the IPC should, at any stage and particularly, before they take up the complaint for hearing, refer the parties to mediation centre if they feel that there exist elements of settlement and both the parties are willing. However, they should take care to see that in this exercise, rigour, purport and efficacy of Section 498-A of the IPC is not diluted. Needless to say that the discretion to grant or not to grant bail is not in any way curtailed by this direction. It will be for the concerned court to work out the modalities taking into consideration the facts of each case.
(c) All mediation centres shall set up pre-litigation desks/clinics; give them wide publicity and make efforts to settle matrimonial disputes at pre-litigation stage.

37. The appeal is disposed of in the aforestated terms.

……………………………………………..J.
(AFTAB ALAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)

NEW DELHI,
FEBRUARY 22, 2013.

FOOTNOTE

1. (2002) 2 SCC 296
2. (2002) 5 SCC 706
3. (2003) 6 SCC 334
4. (2005) 7 SCC 353
5. (2006) 4 SCC 558
6. (2007) 4 SCC 511
7. (1994) 1 SCC 337
8. (2010) 13 SCC 540
9. (2000) 3 SCC 693
10 AIR 2003 SC 1386
11 (2012) 10 SCC 303

The post K. Srinivas Rao vs D.A. Deepa appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO… 4834 OF 2013
(Arising out of Special Leave Petition (Civil) No.5091 of 2009)
S. IYYAPAN …Appellant (s)
VERSUS
M/S UNITED INDIA INSURANCE COMPANY LTD. AND ANOTHER …Respondent(s)

JUDGMENT

M.Y. Eqbal, J.:

Leave granted.

2. The right of the victim of a road accident to claim compensation is a statutory one. The Parliament in its wisdom inserted the relevant provisions in the Motor Vehicles Act in order to protect the victims of road accident travelling in the vehicle or using the road and thereby made it obligatory that no motor vehicle shall be used unless the vehicle is compulsorily insured against third party risk. In this background, can an Insurance Company disown its liability on the ground that the driver of the vehicle although duly licensed to drive light motor vehicle but there was no endorsement in the licence to drive light motor vehicle used as commercial vehicle. This is the sole question arises for consideration in this appeal.

3. This appeal by special leave arises in the following circumstances.

4. On 23.5.1998, at about 8.30 P.M., when the deceased named Charles was riding his bicycle from east to west and reached in front of one house, one Sivananayaitha Perumal (driver of the vehicle who remained ex parte in the proceedings) came from west to east direction driving a Mahindra van at high speed and dashed against Charles and ran away without stopping the vehicle. Charles, who was admitted in a hospital, succumbed to the injuries sustained by him. It is evident from the Motor Vehicle Inspector’s Report that the accident did not occur due to mechanical defect. On the claim petition filed by deceased’s wife (respondent No.2 herein), the Motor Accidents Claims Tribunal (Principal District Judge) at Kanyakumari (in short, “Tribunal”), after considering the evidence on record, awarded a compensation of Rs.2,42,400/- with interest at 12% p.a. from the date of petition – to be paid by the respondents before the Tribunal jointly and severally. The Tribunal was of the view that the person possessing licence to drive light motor vehicle is entitled to drive Mahindra maxi cab.

5. Insurance company preferred an appeal before the High Court challenging the judgment and award of the Tribunal. The Insurance Company did not dispute the quantum of compensation, but questioned the liability itself submitting that the driver of the vehicle was not having a valid driving licence to drive the vehicle on that day. Insurance company referred the decisions of this Court in New India Assurance Company Ltd. v. Prabhu Lal 2008 (1) SCC 696 and Sardari & Ors. v. Sushil Kumar & Ors. 2008 ACJ 1307 and submitted that a person having licence to drive light motor vehicle is not authorized to drive a commercial vehicle.
6. Per contra, on behalf of the claimant, this Court’s decisions in Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd. AIR 1999 SC 3181 and National Insurance Co. Ltd. v. Annappa Irappa Nesaria alias Nesaragi and ors., 2008 (3) SCC 464 were referred and it was contended that a person who is having a licence to drive light motor vehicle can drive the commercial vehicle also.

7. After hearing the learned counsel on either side and considering the aforesaid decisions, the High Court relying upon Sardari’s case (supra), observed that since the vehicle was being used as a taxi, which is a commercial vehicle, the driver of the said vehicle was required to hold an appropriate licence. Hence, there being a breach of the condition of the contract of insurance, the Insurance Company is not liable to pay any compensation to the claimant. The view taken by the High Court is quoted hereinbelow:-

“It has not been disputed that the vehicle was being used as a taxi, which is a commercial vehicle. The driver of the said vehicle was required to hold an appropriate license therefore. The third respondent herein, who was driving the said vehicle at the relevant time, was holder of a license to drive a light motor vehicle only. He did not possess any license to drive a commercial vehicle. In the present case, R.W.2 has deposed that the driver of the vehicle was not having the license to drive a commercial vehicle on the date of accident. Therefore, it is clear that the driver was not having the driving license to drive commercial vehicle on the date of accident. Evidently, therefore, there was a breach of the condition of the contract of insurance. Having tested the present case in the light of the Supreme court Judgment in the case of Sardari and Others v. Sushil Kumar and Others, cited supra, this court is of the considered view that, since the driver was not possessing the driving license to drive a commercial vehicle, the Insurance Company is not liable to pay any compensation to the claimant and the owner of the vehicle is alone liable to pay the compensation to the claimant.”

8. Time and again this Court on various occasions considered the aim and object of making the insurance compulsory before a vehicle is put on the road. Indisputably a new chapter was inserted in the Motor Vehicles Act only with an intention of welfare measure to be taken to ensure and protect the plight of a victim of a road accident. In Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan, (1987) 2 SCC 654, this Court observed as under:-

“13. In order to divine the intention of the legislature in the course of interpretation of the relevant provisions there can scarcely be a better test than that of probing into the motive and philosophy of the relevant provisions keeping in mind the goals to be achieved by enacting the same. Ordinarily it is not the concern of the legislature whether the owner of the vehicle insures his vehicle or not. If the vehicle is not insured any legal liability arising on account of third party risk will have to be borne by the owner of the vehicle. Why then has the legislature insisted on a person using a motor vehicle in a public place to insure against third party risk by enacting Section 94? Surely the obligation has not been imposed in order to promote the business of the insurers engaged in the business of automobile insurance. The provision has been inserted in order to protect the members of the community travelling in vehicles or using the roads from the risk attendant upon the user of motor vehicles on the roads. The law may provide for compensation to victims of the accidents who sustain injuries in the course of an automobile accident or compensation to the dependants of the victims in the case of a fatal accident. However, such protection would remain a protection on paper unless there is a guarantee that the compensation awarded by the courts would be recoverable from the persons held liable for the consequences of the accident. A court can only pass an award or a decree. It cannot ensure that such an award or decree results in the amount awarded being actually recovered, from the person held liable who may not have the resources. The exercise undertaken by the law courts would then be an exercise in futility. And the outcome of the legal proceedings which by the very nature of things involve the time cost and money cost invested from the scarce resources of the community would make a mockery of the injured victims, or the dependants of the deceased victim of the accident, who themselves are obliged to incur not inconsiderable expenditure of time, money and energy in litigation. To overcome this ugly situation the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force. To use the vehicle without the requisite third party insurance being in force is a penal offence. The legislature was also faced with another problem. The insurance policy might provide for liability walled in by conditions which may be specified in the contract of policy. In order to make the protection real, the legislature has also provided that the judgment obtained shall not be defeated by the incorporation of exclusion clauses other than those authorised by Section 96 and by providing that except and save to the extent permitted by Section 96 it will be the obligation of the insurance company to satisfy the judgment obtained against the persons insured against third party risk (vide Section 96). In other words, the legislature has insisted and made it incumbent on the user of a motor vehicle to be armed with an insurance policy covering third party risks which is in conformity with the provisions enacted by the legislature. It is so provided in order to ensure that the injured victims of automobile accidents or the dependants of the victims of fatal accidents are really compensated in terms of money and not in terms of promise. Such a benign provision enacted by the legislature having regard to the fact that in the modern age the use of motor vehicles notwithstanding the attendant hazards, has become an inescapable fact of life, has to be interpreted in a meaningful manner which serves rather than defeats the purpose of the legislation. The provision has therefore to be interpreted in the twilight of the aforesaid perspective.”

9. The defence which the insurer is entitled to take in a case for compensation arising out of the motor vehicles accident was provided under Section 96 of the old Act which is now Section 149 of the Act of 1988. Section 149 of the Motor Vehicles Act, 1988 made it mandatory on the part of the insurer to satisfy the judgments and awards against persons insured in respect of third party risk. For better appreciation, Section 149 is reproduced herein below:-

“(1) If, after a certificate of insurance has been issued under sub-section (3) of section 147 in favour of the person by whom a policy has been effected, judgment or award in respect of any such liability as is required to be covered by a policy under clause (b) of sub-section (l) of section 147 (being a liability covered by the terms of the policy) or under the provisions of section 163A is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
(2) No sum shall be payable by an insurer under sub-section (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely: —
(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely: —
(i) a condition excluding the use of the vehicle—
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle,
(d) without side-car being attached where the vehicle is a motor cycle; or
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion; or
(b) that the policy is void on the ground that it was obtained by the nondisclosure of a material fact or by a representation of fact which was false in some material particular.

(3) Where any such judgment as is referred to in sub-section (1) is obtained from a Court in a reciprocating country and in the case of a foreign judgment is, by virtue of the provisions of section 13 of the Code of Civil Procedure, 1908 (5 of 1908) conclusive as to any matter adjudicated upon by it, the insurer (being an insurer registered under the Insurance Act, 1938 (4 of 1938) and whether or not he is registered under the corresponding law of the reciprocating country) shall be liable to the person entitled to the benefit of the decree in the manner and to the extent specified in sub-section (1), as if the judgment were given by a Court in India: Provided that no sum shall be payable by the insurer in respect of any such judgment unless, before the commencement of the proceedings in which the judgment is given, the insurer had notice through the Court concerned of the bringing of the proceedings and the insurer to whom notice is so given is entitled under the corresponding law of the reciprocating country, to be made a party to the proceedings and to defend the action on grounds similar to those specified in sub-section (2).

(4) Where a certificate of insurance has been issued under sub-section (3) of section 147 to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any condition other than those in clause (b) of subsection (2) shall, as respects such liabilities as are required to be covered by a policy under clause (b) of subsection (1) of section 147, be of no effect: Provided that any sum paid by the insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this sub-section shall be recoverable by the insurer from that person.
(5). …….
(6). …….”

10. Section 149(2)(a)(ii) gives a right to the insurer to take a defence that person driving the vehicle at the time of accident was not duly licensed. In other words, Section 149(2)(a)(ii) puts a condition excluding driving by any person who is not duly licensed. The question arose before this Court as to whether the Insurance Company can repudiate its liability to pay the compensation in respect of the accident by a vehicle taking a defence that at the relevant time it was being driven by a person having no licence. While considering this point, this Court in the case of Skandia Insurance Co. Ltd. (supra) observed:-

“12. The defence built on the exclusion clause cannot succeed for three reasons, viz.:
(1) On a true interpretation of the relevant clause which interpretation is at peace with the conscience of Section 96, the condition excluding driving by a person not duly licensed is not absolute and the promisor is absolved once it is shown that he has done everything in his power to keep, honour and fulfil the promise and he himself is not guilty of a deliberate breach.
(2) Even if it is treated as an absolute promise, there is substantial compliance therewith upon an express or implied mandate being given to the licensed driver not to allow the vehicle to be left unattended so that it happens to be driven by an unlicensed driver.
(3) The exclusion clause has to be “read down” in order that it is not at war with the “main purpose” of the provisions enacted for the protection of victims of accidents so that the promisor is exculpated when he does everything in his power to keep the promise.”

11. To examine the correctness of the aforesaid view, the matter was referred to a 3-Judge Bench because of the stand taken by the Insurance Company that the insurer shall be entitled to defend the action on the ground that there has been a breach of specified condition of policy i.e. the vehicle should not be driven by a person who is not duly licensed and in that case the Insurance Company cannot be held to be liable to indemnify the owner of the vehicle. The 3-Judge Bench of this Court in the case of Sohan Lal Passi v. P. Sesh Reddy & Ors., (1996) 5 SCC 21 after interpreting the provisions of Section 96(2)(b)(ii) of the Act corresponding to Section 149 of the new Act, observed as under:-

“12. …. …… According to us, Section 96(2)(b)(ii) should not be interpreted in a technical manner. Sub-section (2) of Section 96 only enables the insurance company to defend itself in respect of the liability to pay compensation on any of the grounds mentioned in sub-section (2) including that there has been a contravention of the condition excluding the vehicle being driven by any person who is not duly licensed. This bar on the face of it operates on the person insured. If the person who has got the vehicle insured has allowed the vehicle to be driven by a person who is not duly licensed then only that clause shall be attracted. In a case where the person who has got insured the vehicle with the insurance company, has appointed a duly licensed driver and if the accident takes place when the vehicle is being driven by a person not duly licensed on the basis of the authority of the driver duly authorised to drive the vehicle whether the insurance company in that event shall be absolved from its liability? The expression ‘breach’ occurring in Section 96(2)(b) means infringement or violation of a promise or obligation. As such the insurance company will have to establish that the insured was guilty of an infringement or violation of a promise. The insurer has also to satisfy the Tribunal or the Court that such violation or infringement on the part of the insured was wilful. If the insured has taken all precautions by appointing a duly licensed driver to drive the vehicle in question and it has not been established that it was the insured who allowed the vehicle to be driven by a person not duly licensed, then the insurance company cannot repudiate its statutory liability under sub-section (1) of Section 96. ….”

12. In the case of Ashok Gangadhar Maratha v. Oriental Insurance Co. Ltd., 1999 (6) SCC 620, the appellant was the owner of a truck weighing less than the maximum limit prescribed in Section 2(21) of the Motor Vehicles Act. The said truck was, therefore, a light motor vehicle. It was registered with the respondent insurer for a certain amount and for a certain period. Within the period of insurance, the truck met with an accident and got completely damaged. The appellant’s claim against the respondent was rejected by the National Consumer Disputes Redressal Commission. The National Commission accepted the respondent’s contention that the truck was a goods carriage or a transport carriage and that the driver of the truck, who was holding a driving licence in Form 6 to drive light motor vehicles only, was not authorized to drive a transport vehicle and, therefore, the insured having committed breach of the terms of insurance policy and the provisions of the Act, the respondent insurer was not liable to indemnify the insured. Allowing the appeal, this Court held as under:-

“14. Now the vehicle in the present case weighed 5920 kilograms and the driver had the driving licence to drive a light motor vehicle. It is not that, therefore, the insurance policy covered a transport vehicle which meant a goods carriage. The whole case of the insurer has been built on a wrong premise. It is itself the case of the insurer that in the case of a light motor vehicle which is a nontransport vehicle, there was no statutory requirement to have a specific authorisation on the licence of the driver under Form 6 under the rules. It has, therefore, to be held that Jadhav was holding an effective valid licence on the date of the accident to drive a light motor vehicle bearing Registration No. KA-28-567.”

13. In the case of New India Assurance Company, Shimla v. Kamla & Others, (2001) 4 SCC 342, a fake licence had happened to be renewed by the statutory authorities and the question arose as to whether Insurance Company would be liable to pay compensation in respect of motor accident which occurred while the vehicle was driven by a person holding such a fake licence. Answering the question, this Court discussed the provisions of Sections 146, 147 and 149 of the Act and observed:-
“21. A reading of the proviso to subsection (4) as well as the language employed in sub-section (5) would indicate that they are intended to safeguard the interest of an insurer who otherwise has no liability to pay any amount to the insured but for the provisions contained in Chapter
XI of the Act. This means, the insurer has to pay to the third parties only on account of the fact that a policy of insurance has been issued in respect of the vehicle, but the insurer is entitled to recover any such sum from the insured if the insurer were not otherwise liable to pay such sum to the insured by virtue of the conditions of the contract of insurance indicated by the policy.

22. To repeat, the effect of the above provisions is this: when a valid insurance policy has been issued in respect of a vehicle as evidenced by a certificate of insurance the burden is on the insurer to pay to the third parties, whether or not there has been any breach or violation of the policy conditions. But the amount so paid by the insurer to third parties can be allowed to be recovered from the insured if as per the policy conditions the insurer had no liability to pay such sum to the insured.

23. It is advantageous to refer to a twoJudge Bench of this Court in Skandia Insurance Co. Ltd. v. Kokilaben Chandravadan (1987 )2 SCC 654. Though the said decision related to the corresponding provisions of the predecessor Act (Motor Vehicles Act, 1939) the observations made in the judgment are quite germane now as the corresponding provisions are materially the same as in the Act. Learned Judges pointed out that the insistence of the legislature that a motor vehicle can be used in a public place only if that vehicle is covered by a policy of insurance is not for the purpose of promoting the business of the insurance company but to protect the members of the community who become sufferers on account of accidents arising from the use of motor vehicles. It is pointed out in the decision that such protection would have remained only a paper protection if the compensation awarded by the courts were not recoverable by the victims (or dependants of the victims) of the accident. This is the raison d’être for the legislature making it prohibitory for motor vehicles being used in public places without covering third-party risks by a policy of insurance.

24. The principle laid down in the said decision has been followed by a three-Judge Bench of this Court with approval in Sohan Lal Passi v. P. Sesh Reddy (1996) 5 SCC 21.

25. The position can be summed up thus: The insurer and the insured are bound by the conditions enumerated in the policy and the insurer is not liable to the insured if there is violation of any policy condition. But the insurer who is made statutorily liable to pay compensation to third parties on account of the certificate of insurance issued shall be entitled to recover from the insured the amount paid to the third parties, if there was any breach of policy conditions on account of the vehicle being driven without a valid driving licence. Learned counsel for the insured contended that it is enough if he establishes that he made all due enquiries and believed bona fide that the driver employed by him had a valid driving licence, in which case there was no breach of the policy condition. As we have not decided on that contention it is open to the insured to raise it before the Claims Tribunal. In the present case, if the Insurance Company succeeds in establishing that there was breach of the policy condition, the Claims Tribunal shall direct the insured to pay that amount to the insurer. In default the insurer shall be allowed to recover that amount (which the insurer is directed to pay to the claimant third parties) from the insured person.”

14. In the case of National Insurance Co. Ltd. v. Swaran Singh & Ors., (2004) 3 SCC 297, a 3-Judge Bench of this Court held as under:-

“47. If a person has been given a licence for a particular type of vehicle as specified therein, he cannot be said to have no licence for driving another type of vehicle which is of the same category but of different type. As for example, when a person is granted a licence for driving a light motor vehicle, he can drive either a car or a jeep and it is not necessary that he must have driving licence both for car and jeep separately.

48. Furthermore, the insurance company with a view to avoid its liabilities is not only required to show that the conditions laid down under Section 149(2)(a) or (b) are satisfied but is further required to establish that there has been a breach on the part of the insured. By reason of the provisions contained in the 1988 Act, a more extensive remedy has been conferred upon those who have obtained judgment against the user of a vehicle and after a certificate of insurance is delivered in terms of Section 147(3). After a third party has obtained a judgment against any person insured by the policy in respect of a liability required to be covered by Section 145, the same must be satisfied by the insurer, notwithstanding that the insurer may be entitled to avoid or to cancel the policy or may in fact have done so. The same obligation applies in respect of a judgment against a person not insured by the policy in respect of such a liability, but who would have been covered if the policy had covered the liability of all persons, except that in respect of liability for death or bodily injury.

xxx xxx xxx
73. The liability of the insurer is a statutory one. The liability of the insurer to satisfy the decree passed in favour of a third party is also statutory.

xxx xxx xxx
110. The summary of our findings to the various issues as raised in these petitions is as follows:

(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third-party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object.
(ii) An insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g. disqualification of the driver or invalid driving licence of the driver, as contained in subsection (2)(a)(ii) of Section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) Insurance companies, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish “breach” on the part of the owner of the vehicle; the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how the said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply “the rule of main purpose” and the concept of “fundamental breach” to allow defences available to the insurer under Section 149(2) of the Act.
(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person having a learner’s licence, the insurance companies would be liable to satisfy the decree.
(ix) The Claims Tribunal constituted under Section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of the Tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between the insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and the award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the Tribunal. Such determination of claim by the Tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the Tribunal to the Collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by sub-section (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal.
(xi) The provisions contained in sub-section (4) with the proviso thereunder and subsection (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims.”

15. In the case of National Insurance Co. Ltd. v. Kusum Rai and Others, (2006) 4 SCC 250, the respondent was the owner of a jeep which was admittedly used as a taxi and thus a commercial vehicle. One Ram Lal was working as a Khalasi in the said taxi and used to drive the vehicle some times. He had a driving licence to drive light motor vehicle. The taxi met with an accident resulting in the death of a minor girl. One of the issues raised was as to whether the driver of the said jeep was having a valid and effective driving licence. The Tribunal relying on the decision of this Court in New India Assurance Co. v. Kamla (supra) held that the insurance company cannot get rid of its third party liability. It was further held that the insurance company can recover this amount from the owner of the vehicle. Appeal preferred by the insurance company was dismissed by the High Court. In appeal before this Court, the insurance company relying upon the decision in Oriental Insurance Co. Ltd. v. Nanjappan, 2004 (13) SCC 224 argued that the awarded amount may be paid and be recovered from the owner of the vehicle. The Insurance Company moved this Court in appeal against the judgment of the High Court which was dismissed.

16. In the case of National Insurance Company Ltd. v. Annappa Irappa Nesaria alias Nesaragi and Others, 2008 (3) SCC 464, the vehicle involved in the accident was a matador having a goods carriage permit and was insured with the insurance company. An issue was raised that the driver of the vehicle did not possess an effective driving licence to drive a transport vehicle. The Tribunal held that the driver was having a valid driving licence and allowed the claim. In appeal filed by the insurance company, the High Court dismissed the appeal holding that the claimants are third parties and even on the ground that there is violation of terms and conditions of the policy the insurance company cannot be permitted to contend that it has no liability. This Court after considering the relevant provisions of the Act and definition and meaning of light goods carriage, light motor vehicles, heavy goods vehicles, finally came to conclusion that the driver, who was holding the licence duly granted to drive light motor vehicle, was entitled to drive the light passenger carriage vehicle, namely, the matador. This Court observed as under:

“20. From what has been noticed hereinbefore, it is evident that “transport vehicle” has now been substituted for “medium goods vehicle” and “heavy goods vehicle”. The light motor vehicle continued, at the relevant point of time to cover both “light passenger carriage vehicle” and “light goods carriage vehicle”. A driver who had a valid licence to drive a light motor vehicle, therefore, was authorized to drive a light goods vehicle as well.”

17. The heading “Insurance of Motor Vehicles against Third Party Risks” given in Chapter XI of the Motor Vehicles Act, 1988 (Chapter VIII of 1939 Act) itself shows the intention of the legislature to make third party insurance compulsory and to ensure that the victims of accident arising out of use of motor vehicles would be able to get compensation for the death or injuries suffered. The provision has been inserted in order to protect the persons travelling in vehicles or using the road from the risk attendant upon the user of the motor vehicles on the road. To overcome this ugly situation, the legislature has made it obligatory that no motor vehicle shall be used unless a third party insurance is in force.

18. Reading the provisions of Sections 146 and 147 of the Motor Vehicles Act, it is evidently clear that in certain circumstances the insurer’s right is safeguarded but in any event the insurer has to pay compensation when a valid certificate of insurance is issued notwithstanding the fact that the insurer may proceed against the insured for recovery of the amount. Under Section 149 of the Motor Vehicles Act, the insurer can defend the action inter alia on the grounds, namely, (i) the vehicle was not driven by a named person, (ii) it was being driven by a person who was not having a duly granted licence, and (iii) person driving the vehicle was disqualified to hold and obtain a driving licence. Hence, in our considered opinion, the insurer cannot disown its liability on the ground that although the driver was holding a licence to drive a light motor vehicle but before driving light motor vehicle used as commercial vehicle, no endorsement to drive commercial vehicle was obtained in the driving licence. In any case, it is the statutory right of a third party to recover the amount of compensation so awarded from the insurer. It is for the insurer to proceed against the insured for recovery of the amount in the event there has been violation of any condition of the insurance policy.

19. In the instant case, admittedly the driver was holding a valid driving licence to drive light motor vehicle. There is no dispute that the motor vehicle in question, by which accident took place, was Mahindra Maxi Cab. Merely because the driver did not get any endorsement in the driving licence to drive Mahindra Maxi Cab, which is a light motor vehicle, the High Court has committed grave error of law in holding that the insurer is not liable to pay compensation because the driver was not holding the licence to drive the commercial vehicle. The impugned judgment is, therefore, liable to be set aside.

20. We, therefore, allow this appeal, set aside the impugned judgment of the High Court and hold that the insurer is liable to pay the compensation so awarded to the dependants of the victim of the fatal accident. However, there shall be no order as to costs.

…………………………….J.
(Surinder Singh Nijjar)

…………………………….J.
(M.Y. Eqbal)

New Delhi,
July 1, 2013.

The post S. Iyyapan Vs. United India Insurance Company Ltd. and Another appeared first on B&B Associates LLP.

Hon’ble Pradeep Kumar Singh Baghel,J.
Petitioners have preferred this writ petition to seek issuance of a writ of mandamus or direction upon the respondents not to interfere in the peaceful marital life of the petitioners.
A brief reference to the factual aspects would suffice.
The petitioner no. 1 is stated to be wife of the petitioner no. 2. Her date of birth is 17th September, 1986, whereas date of birth of the petitioner no. 2 is 28th February, 1985. Petitioner no. 1 earned her Bachelor of Medicine and Bachelor of Surgery (M.B.B.S.) degree in the year 2010. The petitioner no. 2 did his Bachelor of Technology in Computer Science and Engineering. He stood first in his examination. Both the petitioners are thus major. It is stated that they were well acquainted with each other and, therefore, in cool mind, without there being any influence of any one, keeping in mind their life partner and in order to lead matrimonial life, they decided to marry. The parents of both the petitioners had objection about their marriage, presumably on the ground that they are from different caste, therefore, they decided and accordingly got their marriage performed on 04th June, 2013 at Arya Samaj Mandir, Arya Nagar, Ghaziabad. They have brought on record the marriage certificate issued by the Arya Samaj Mandir, Arya Nagar, Ghaziabad as Annexure-2 to the writ petition. It is stated that the petitioners also moved an application before the Registrar, Hindu Marriage-V, Ghaziabad for registration of their marriage. Registrar, Hindu Marriage-V, Ghaziabad has also issued a marriage registration certificate dated 04th June, 2013, which has been brought on record as Annexure-4 to the writ petition.
It is alleged by the petitioners that respondent no. 4, father of the petitioner no. 1, influenced the Senior Superintendent of Police, Hapur, the respondent no. 2, for harassment/torture of the petitioners, on account of which the police personnel of Police Station Hapur came to the petitioners’ house and harassed them as well as family members of the petitioner no. 2. Thereupon, both the petitioners approached the respondent no. 2 and made a complaint against the local police. However, in spite of the said complaint made to the respondent no. 2, local police again came at the house of the petitioners and threatened them. Therefore, having no other remedy, the petitioners have approached this Court for a direction upon the respondents not to interfere in the peaceful marital life of the petitioners. The principal ground of the writ petition is violation of their fundamental right under Article 21 of the Constitution.
In this Court, large numbers of the writ petitions under Article 226 of the Constitution of India are filed on somewhat similar facts and for similar reliefs. Keeping in view huge number of cases every day, Hon’ble the Chief Justice of this Court has assigned a separate jurisdiction to a Single Judge Bench under the caption of “couple matters”. The common grievance of the petitioners in these writ petitions is that they are major and they wish to live with each other, but they are being subjected to harassment by the local police at the behest of their unwilling parents. In these petitions, some of the petitioners claim that they have married in accordance with their religion/faith. There are cases of inter-religion marriages also. In some cases, petitioners also file marriage certificates duly issued by the Registrar (Marriage) to establish that they are legally wedded couple.
This Court is not concerned whether marriage in such cases is valid or not. These writ petitions cannot be treated as a short cut for a certificate of this Court regarding legality of marriage of the petitioners. But an important issue raised in these petitions is regarding the fundamental rights of the petitioners guaranteed under Article 21 of the Constitution. Can this Court be a silent spectator, when its extraordinary jurisdiction under Article 226 of the Constitution is invoked seeking its protection for personal liberty and to live with human dignity by a young couple, whose only fault is that they have crossed the bridge of caste and religion?
This Court takes divergent views and different nature of reliefs are granted by the different Benches. I find that there is no authoritative pronouncement by this court on this issue but the Supreme Court has considered this issue and has laid down the law in no uncertain terms.
In the case of Gian Devi v. The Superintendent, Nari Niketan, Delhi and others, (1976) 3 SCC 234, a three-Judge Bench of the Supreme Court has held that if a girl is major then no fetter can be placed upon her choice of the person with whom she is to stay nor any restriction can be imposed regarding the place where she should stay. The Supreme Court speaking through Justice H. R. Khanna (as His Lordship then was) further observed that relatives can also have no right to interfere in such matter. It is enough to extract relevant part of the judgment which reads as under:
“7. … Whatever may be the date of birth of the petitioner, the fact remains that she is at present more than 18 years of age. As the petitioner is sui juris no fetters can be placed upon her choice of the person with whom she is to stay, nor can any restriction be imposed regarding the place where she should stay. The court or the relatives of the petitioner can also not substitute their opinion or preference for that of the petitioner in such a matter.”

In the case of Lata Singh v. State of U.P. and another, reported in (2006) 5 SCC 475, the Court has welcomed the inter-caste marriages and has noted that the caste system is a curse on the nation and once a person becomes major, he or she can marry whosoever he or she likes, and if parents of such boy or girl do not approve of such inter-caste marriage, they can simply cut-off social relations with son or daughter, but they cannot give threats or commit or instigate acts of violence. In the said case, the Supreme Court has issued a general direction to the administration/ police authorities throughout the country to see that if any boy or girl, who is a major, undergoes inter-caste or inter-religion marriage, with a woman or man, who is a major, they should not be harassed by anyone nor subjected to threats or acts of violence. The relevant part of such judgment is extracted below:
“17. … This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut-off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple is not harassed by anyone nor subjected to threats or acts of violence, and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such person and further stern action is taken against such persons as provided by law.”
(emphasis supplied by me)

The judgment of Lata Singh (supra) was approved by a three-Judge Bench of the Supreme Court in the case of S. Khushboo v. Kanniammal and another, (2010) 5 SCC 600, and it was held that a major girl is free to marry anyone she likes or “live with anyone she likes”. In such a situation, the Court further held that no offence was committed by any of the accused and the whole criminal case in question was held to be abuse of the process of the Court. The Court commenting on the issue of morality in such cases aptly observed as under:
“46. …………. Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and criminality are not coextensive.”

In the case of Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC 396, the Supreme Court has taken judicial notice of the honour killings in many parts of the country, particularly in Haryana, Western Uttar Pradesh and Rajasthan. The Court has strongly condemned honor killings in such situation and has held that such act will be treated within the category of rarest of rare cases deserving death punishment. Paragraphs-28 and 29 of Bhagwan Dass (supra) read as under:
“28. ….. Often young couples who fall in love have to seek shelter in the police lines or protection homes, to avoid the wrath of kangaroo courts. We have held in Lata Singh case that there is nothing “honourable” in “honour” killings, and they are nothing but barbaric and brutal murders by bigoted persons with feudal minds. In our opinion honour killings, for whatever reason, come within the category of the rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilised behavior. All persons who are planning to perpetrate “honour” killings should know that the gallows await them.

29. Let a copy of this judgment be sent to the Registrars General/ Registrars of all the High Courts who shall circulate the same to all the Judges of the Courts. The Registrars General/ Registrars of the High Courts will also circulate copies of the same to all the Sessions Judges/ Additional Sessions Judges in the States/Union Territories. Copies of the judgment shall also be sent to all the Chief Secretaries/ Home Secretaries/ Directors General of Police of all States/ Union Territories in the country. The Home Secretaries and Directors General of Police will circulate the same to all SSPs/SPs in the States/Union Territories for information.”
( emphasis supplied )

The Supreme Court in the case of D. Velusamy v. D. Patchaiammal, reported in (2010) 10 SCC 469, has considered the live-in relationship or a relationship in the nature of marriage and laid down some ingredients, which can be treated like a common law marriage. The relevant paragraph of the judgment reads as under:
“31. In our opinion a “relationship in the nature of marriage” is akin to a common law marriage. Common law marriages require that although not being formally married:
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.”

The above law was in respect of ”live-in relationship’, therefore, in the present context the requirement of (d) would not be applicable.
Similar view has also been taken by the different Division Benches of this Court. In the case of Tanushree Upadhyay @ Tanushree Tripathi and another Vs. State Of U.P. and others, Civil Misc. Writ Petition No. 59575 of 2007, decided on 04th December, 2007 a Bench of Hon’ble Dr. Justice B.S. Chauhan (as His Lordship then was) and Hon’ble Mr. Justice Arun Tandon, has passed the following order:
“The petitioners claim to be major and got married by their free will because of love and affection. Their marriage is not being accepted by the respondent nos. 3 who is the Father of petitioner no. 1 and thus harassing the petitioners. Petitioners have filed the present writ petition seeking protection.

In view of the above, we dispose of the writ petition with the observation that in case the petitioners have any grievance, they may move an application before the Senior Superintendent of Police, Allahabad for their protection. In case, such an application is moved before the Senior Superintendent of Police, Allahabad, he may look into the grievance of the petitioners and do the needful. Needless to say, if the petitioners propose to lodge First Information Report against any person who is harassing, the same may be registered and necessary action may be taken in accordance with law as held by the Apex Court in the case of Lata Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522.”

In the case of Bharti Arora and another v. State of U.P. & others, Writ-C No. 53307 of 2012, decided on 11th October, 2012, another Division Bench of this Court comprising Hon’ble Mr. Justice Amitava Lala, Acting Chief Justice (as His Lordship then was) and Hon’ble Mr. Justice Ashok Srivastava, has passed the following order:
“Both the petitioners i.e. boy and girl are identified by Mr. Sushil Kumar, learned counsel appearing for the petitioners.

Marriage is definitely wishes of a boy and girl to continue with their conjugal relationship provided they have attained the age of marriage, as required by law. We have been fortified with several writ petitions in which more or less identical reliefs are claimed for protection of their marital relationship, which is allegedly being interfered with and harassed by their parents or relatives, who are private respondents. The writ jurisdiction is not made to resolve such type of dispute between the two private parties. We otherwise strongly believe family law is no law. It is a social problem, which can only be uprooted socially and not by the intervention of the writ Court in the garb of violation of Article 21 of the Constitution of India unless it is established beyond doubt.

If there is any real grievance of married couple against their parents or relatives who are allegedly interfering with their conjugal rights which goes to such extent that there is threat of life, they are at liberty to lodge any criminal complaint or file F.I.R. whichever is required under the law to the police and in case of refusal, may make appropriate application before the appropriate court of criminal law by way of applications under Sections 155 or 156 of the Criminal Procedure Code. Similarly, in case the parents or relatives, find that illegally their son or daughter was eloped for the purpose of marriage although he or she is underage or not inclined or they are behaving violently, they are equally at liberty to take steps in a similar manner.

But, when neither of the actions are taken amongst each other, a fictitious application with certain vague allegations, particularly by the newly married couple, under writ jurisdiction of the High Court, appears to be circuitous way to get the seal and signature of the High Court upon their respective marriages without any identification of their age and other necessary aspects required to be done by the appropriate authority/authorities. It is well settled by now that every marriage is required to be registered by the appropriate registering authority upon due verification of the ages etc. of respective parties. We cannot also allow to develop the disputed questions of fact under the writ jurisdiction nor we can draw any inference by the colourful presence of the newly wedded couple in the Court as per the respective advices. If we do so, it will be wrong presumption by using excessive power of the Court in this jurisdiction.

However, where no F.I.R. has been lodged or necessary police actions are taken by either of the parties, it is expected that no coercive action could be taken against each other.

In case the party/parties approaches/ approach the appropriate court of law or the authority concerned, raising his/her/their grievances, the same will be considered strictly in accordance with law.

If this order is obtained by fraud or suppression of material facts, then the law will take its own course independently.

Accordingly, the writ petition is treated to be disposed of, however, without any order as to costs.”

The anguish expressed by the Supreme Court in the case of Bhagwan Dass (supra) is a matter of serious concern for our democratic polity. Organizing Khaps on the caste basis and implementing their decisions instantly will turn the democracy into mobocracy. It will turn India into a banana republic. As noticed by the Supreme Court, honor killing has become commonplace in Western Uttar Pradesh. If the tendency to overreach the rule of law is not nipped in the bud, it would corrode the very foundation of our Constitution on which its grand edifice rests. The consequences are fraught with danger of collapse of our institutions and rule of law that will lead to anarchy.
It is axiomatic that India is much maligned for its caste system but a fleeting look at history will reveal that racial/caste discrimination was in existence in most of the countries and culture in one or the other forms. The word ”caste’ is derived from the Spanish and Portuguese word ”Casta’. Oxford dictionary defines it to mean “Race, lineage or breed”. In all the ancient societies, like in Rome, people were classified according to their distinct functions. According to Social Scientist Damezil, Roman society was broadly comprised of three classes: (1) Priestly (Like Brahmins in India); (2) people associated with Army (Kshatriyas); and (3) People who were engaged in agriculture, production, craft, and commerce.
In Japan also, such positions were inherited. At the top were Kuge. The Emperors belonged to this class. Rest of the people were divided in four classes: (1) Sumrai (Associated with Arms); (2) Peasants; (3) Craftsmen; and (4) Merchants. These classes were hierarchal and endogamous. The merchants were treated lowest because they had no contribution in production. The Sumerai had authority to kill any member of lower class if they show any disrespect to them.
In France also there was an untouchable caste, Cagots. They were treated as inferior caste. The Cagots are also found in some parts of Spain. In Africa also, in some parts social positions are inherited and they are hierarchical. Some castes are treated like untouchable and are shunned while the others are respected and are endogamous. In Nigeria if a person is born in Osu caste, he is treated as out caste and ostracized. He has limited opportunities in spite of his merit and ability. West Africans artisans have suffered similar treatment. They are looked upon as inferior, despised by some people, their occupation is hereditary and they are deprived of all political power.
Similar class divisions on the ethnic basis exist in other African countries. The Mande societies in Ivory costa, Ghana and neighboring countries have social stratification system. The Jonow are descendants of slaves. Griots, Forgenorons, and Cordonniers are other castes based on similar basis.
The United States, a land of freedom and liberty, has a long history of discrimination on the ground of colour and creed. Their society was segregated on the basis of the colour. Dr. Martin Luther King, an ardent follower of Mahatma Gandhi, had a long journey for America to be a country for the people of all colour and creed. He led a a historical march, like Mahatma Gandhi’s Dandi March, on 28th August, 1963 to Washington. On the said date, in response to his call 2,50,000 people made peaceful and orderly march to Lincoln Memorial, Washington. In the American history, it was the largest demonstration but Dr. Martin Luther King did not call it struggle against the inequality or oppression against the Government, he called it a pilgrimage. He cautioned his followers that pilgrimage will be long and arduous and to maintain high moral ground it was necessary to observe non-violence. He articulated it as “I have a dream”. His famous speech on that day at Lincoln Memorial placed him in the rank of Lincoln and Franklin. Said historical march led to enactment of the Civil Right Act, 1964, Voting Right Act, 1965 and Fair Housing Act, 1968. For the first time, after more than a hundred and fifty years of independence, it ended discrimination against the racial, ethnic, rational, religious minorities and women. They got the voting right and it ended racial segregation in schools, workplace and provided facilities that served the general public.
Relevant it would be to mention that in his famous speech “I have a dream”, there was not a single word of hatred against the whites. No complaint but an earnest desire which he wanted to send across the world was that everyone is born equal.
A chronological horizon of world history would reveal that most of the countries mentioned above, except a few African Countries, have successfully erased their blot of racial and other forms of discrimination with the help of better education, scientific advancement, scientific temper and humanism. It is matter of great concern and shame that our society is still resisting the change which has swept across the world in the era of globalization.
The Supreme Court, half a century ago, in the case of V.V. Giri v. D. Suri Dora and others, AIR 1959 SC 1318, speaking through Justice Gajendragadkar (as His Lordship then was) lamented and observed as under:
“23. … In dealing with this contention it would be essential to bear in mind the broad and recognised features of the hierarchical social structure prevailing amongst the Hindus. It is not necessary for our present purpose to trace the origin and growth of the caste system amongst the Hindus. It would be enough to state that whatever may have been the origin of Hindu castes and tribes in ancient times, gradually status came to be based on birth alone. It is well known that a person who belongs by birth to a depressed caste or tribe would find it very difficult, if not impossible, to attain the status of a higher caste amongst the Hindus by virtue of his volition, education, culture and status. The history of social reform for the last century and more has shown how difficult it is to break or even to relax the rigour of the inflexible and exclusive character of the caste system. It is to be hoped that this position will change, and in course of time the cherished ideal of casteless society truly based on social equality will be attained under the powerful impact of the doctrine of social justice and equality proclaimed by the Constitution and sought to be implemented by the relevant statutes and as a result of the spread of secular education and the growth of a rational outlook and of proper sense of social values; but at present it would be unrealistic and utopian to ignore the difficulties which a member of the depressed tribe or caste has to face in claiming a higher status amongst his co-religionists.”

The Supreme Court has followed said decision recently in Rameshbhai Dabhai Naika V. State Of Gujrat and others, (2012) 3 SCC 400.
I am not oblivious of the fact that I have digressed a little from the issue but it is in the fond hope that our generation will see a egalitarian and casteless society. Such digression is under permissible limits as aptly observed by Justice Krishna Iyer (as his Lordship then was) in his illuminating judgement in Msr. Maneka Gandhi v. Union of India and another, (1978) 1 SCC 248, in following terms:
“I have divagated a great deal into travel constitutionality in the setting of the story of the human journey, even though such a diffusion is partly beyond the strict needs of this case. But judicial travelling, like other travelling, is almost like ‘talking with men of other centuries and countries’.”

Now coming back to the case in hand, the principle of law that could be deduced from the above decisions is that if petitioners are major, they have unfettered right to choice of a person with whom they want to live. The Courts are not concerned whether their marriage is solemnized or not, as held by the Supreme Court in Gian Devi (supra) that if a girl has attained the age of majority, no one including her parents have right to object against her preference. In Bhagwan Dass (supra) the Supreme Court has issued a direction to circulate the copy of the judgment to the Registrars General/ Registrars of all the High Courts with a further direction to circulate the same to all the Judges of the Courts including Sessions Judges/ Additional Sessions Judges, and also to the Chief Secretaries, Home Secretaries, Directors General of Police of all the States to circulate the said judgment to all the Senior Superintendents of Police/Superintendents of Police of their States for their information.
It is distressing to note that in spite of the said direction of the Supreme Court, the Police is ignoring the law and the direction issued to them by the Apex Court. Thus, if any police officer harasses young couple, who are major and are living together voluntarily, such Police officer will be at the risk of disobeying the judgment of the Supreme Court in Bhagwan Dass (supra).
Therefore, if a complaint is made by the parents/relatives against a boy or a girl, the police officers shall have a limited role in such matter, under the law, that they can verify their age and whether they have decided to live together voluntarily. If they are educated and they produce their educational and other certificates, admissible under the law, from which it is evident that they have attained the majority and they are living with their free will then no police officer shall take any coercive action against them. If they do not have any documentary proof regarding their age and they come from the rural background and are illiterate/ semi-literate, the police officer can subject such boy or the girl to ossification test to verify their correct age, and he can also follow the other procedure permissible under the law.
If the police officer is satisfied that they are major then he has no authority to interfere with the living of the boy or girl and any such complaint made against the boy or girl by the parents should be dealt with in accordance with law.
After careful consideration of the facts and circumstances of the case, I am of the view that both the petitioners are major and they are living with their free will. They are present in the Court. Therefore, a direction needs to be issued to respondents not to interfere in their peaceful living. Accordingly it is issued.
The writ petition is allowed.
No order as to costs.

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION NO.(C) No.25237/2010
Abhay Singh ….PETITIONER
versus
State of Uttar Pradesh and others …RESPONDENTS
with
SPECIAL LEAVE PETITION(C) No.23984/2010
Abhay Singh ….PETITIONER
versus
Union of India and another ….RESPONDENTS

O R D E R

G.S. SINGHVI, J.
One of the several questions of public and constitutional importance raised by Shri Harish Salve, learned senior counsel, who initially appeared on behalf of the petitioner in the special leave petitions filed against order dated 21.8.2009 passed by the Division Bench of the Allahabad High Court in C.M.W.P. No. 15440 of 1998 quashing the withdrawal of “Z Grade Security” provided to Respondent No.6-Pramod Tiwari, but later on assumed the role of an Amicus, is whether the Constitution contemplates categorization of citizens into two groups and whether the entitlement to use signs and symbols of authority, such as lights of different colours including red lights, insignia, and convoys/escorts by public servants and persons, who hold public offices under the States or the Union of India, is contrary to constitutional ethos and the basic feature of republicanism enshrined in the Constitution.

Notice of the special leave petitions was issued on 25.8.2010. After an adjournment, the Court passed detailed order dated 14.10.2011, which reads as under:

“Although, the prayer made in this petition filed under Article 136 of the Constitution is for setting aside the order passed by the Division Bench of Allahabad High Court directing consideration of the case of respondent No. 6 for providing ‘Z’ category security to him and his family members, at the hearing Shri Harish N. Salve, Learned Senior counsel for the petitioner submitted that dehors the facts of the case, the Court should examine important issues affecting an important facet of the Constitutional democracy i.e. whether the country should have two categories of citizens, of which one enjoys all sorts of privileges including unwanted security at public expense and is also allowed to use different kinds of symbols which represented the authority of the State in pre-independence era and the fundamental rights to life and liberty of other category are not protected. Shri Salve suggested that the following questions may be considered by the Court:

1. Whether the permission to use signs and symbols of authority, such as beacons, insignia, and convoys/escorts by public servants or any person who holds any office under the States or the Union of India, or any other person, is contrary to Article 18 and 38 and the basic feature of republicanism enshrined in the Constitution?

2. Whether the State was and is under an affirmative obligation to ensure that the vision of the founding fathers to change the perception of the State and its functionaries from rulers to public servants who are to serve rather than govern the people, was implemented in letter and spirit?

3. Whether by virtue of Article 21 read with Article 14, State is under an obligation to afford the same degree of protection to the safety and security of every person irrespective of any office held by such person or status of such person or any other factor?

4. Whether the grant of protection [by way of escorts or otherwise], particularly at the expense of the State, on the basis of an office held by a person or any other factor [other than a perceived need to grant heightened protection on account of aggravated threat to the life of any person on account of his lawful occupation, assessed on an objective basis] is illegal, ultra vires and unconstitutional?

5. Whether the State is under an obligation to ensure that any heightened protection granted to any person, or any special security arrangements made for any person, holding public office, is done in a manner that does not violate the principle of republicanism and the provisions or Art. 18 and 21 of the Constitution? Shri Pallav Shishodia, learned senior counsel appearing for respondent No.6 says that the questions proposed by the learned counsel appearing for the petitioner are of great public importance and he will have no objection if same are considered by the Court. He also suggested that the Court may suo motu order impleadment of all the States and Union Territories as parties so that they may also make appropriate submissions.

We have considered the submissions of the learned counsel and are prima facie satisfied first four of the five questions framed by Shri Salve would require detailed examination.

Let notice be issued to all the States and Union Territories through their Secretaries, Home Department so as to enable them to file their written response in the context of question No. 1 to 4 framed by learned senior counsel appearing for the petitioner. Notice is returnable in six weeks.

Keeping in view the importance of the questions framed hereinabove, we request the learned Solicitor General to assist the Court.” On 17.1.2013, the Court considered the prayer made in the application filed on behalf of the SLP petitioner and passed the following order:

“Shri Harish Salve, learned senior counsel representing the petitioner in S.L.P.(C) No.25237 of 2010 place before the Court an application for direction in which it has been prayed that a direction may be issued to all the States and Union Territories to furnish information under the following headings:

(a) The Rules, Orders or Guidelines, if any, in the State which prescribe the policy for permitting Red Lights on vehicles to various persons in the state.

(b) The Rules, Orders or Guidelines, if any, in the state which prescribe the policy of the state for permitting security personnel to individuals.

(c) The Names and the designation of the persons to whom security personnel have been provided and the number of security persons provided to them.

(d) Total cost borne by the state for providing security in terms as aforesaid.

(e) Total number of security personnel in the state and the total number of such personnel who are engaged in (i) Maintaining Law and Order, (ii) Crime Prevention and investigation and (iii) Traffic Management.

Learned counsel for the States and Union Territories must ensure that affidavits of the responsible officers of the Home Department of their respective States and Union Territories are filed within three weeks from today. Any lapse in this regard will be viewed seriously.

For further consideration, list the cases on 07.02.2013.”

On the next effective date of hearing, i.e., 14.2.2013, the Court took into consideration two notes made available by the learned Amicus and passed detailed order, the relevant portions of which are reproduced below:

“Before considering the issues raised in the 2nd note made available by Shri Salve, we deem it proper to issue the following directions:

1. All the State Governments and the Administration of Union Territories shall furnish the details of the total expenses incurred in providing security to public functionaries and private individuals other than holders of the constitutional office like the President, the Vice-President, the Prime Minister, the Speaker of the Lok Sabha, the Chairman of the Rajya Sabha and the Chief Justice of India and their counter parts in the States and Union Territories.

2. Total number of persons other than the dignitaries, to whom reference has been made in the preceding paragraph, to whom security has been provided at the State expense giving the details of number of persons of various cadres deputed for providing security to the various persons.

3. The details of the security provided to the children and other family members / relatives of the public functionaries within or outside the State/Union Territory.

4. The details of the persons who are facing criminal charges, charges of violating any provisions of law and to whom security has been provided at State expense.

5. The details of the private individuals to whom the security has been provided at the cost of public exchequer, whether in lieu of payment made by them or otherwise.

6. Each State Government/Union Territory shall security provided to public functionaries and provide details of the review undertaken of the private individuals.

7. All the States and Union Territories shall file copies of the Rules/Orders which authorises the police and other functionaries to close roads for movement of public functionaries or their visits.

8. The notifications issued by the Central Government, State Governments and the Union Territories authorising use of Sirens other than by the man in uniform and those engaged and providing medical facilities to the patients and victims of accidents.”

When the case was taken up for hearing on 3.4.2013, Shri Harish N.

Salve made submissions with reference to the following three questions:

“1. Whether the use of beacons red-light and sirens by persons other than high constitutional functionaries is lawful and constitutional?

2. Whether the provision of security to persons other than the constitutional functionaries without corresponding increase in sanctioned strength and without a specific assessment of threat is lawful and constitutional?

3. Whether the closure of roads for facilitating movement of VIPs is lawful and constitutional?”

Further arguments were heard on 4.4.2013 and certain directions were issued in the light of the provisions of the Motor Vehicles Act, 1988 (for short, ‘the 1988 Act’), the Central Motor Vehicles Rules, 1989 (for short, ‘the 1989 Rules’)and the Rules framed by the State Governments, the relevant portions of which are extracted hereunder:

“The Motor Vehicles Act was enacted in 1988 and the Rules were framed by the Central Government and various State Governments in 1989. The legislative bodies and the authorities have not thought it proper to make appropriate amendments to bring the provisions of the Act and the Rules in conformity with the aspirations of the people of a republic and even now a small section of the society considers itself to be as a special category as compared to other citizens. This appears to be the primary reason why the Governments after Governments have issued notifications under Section 6 of the 1988 Act and the rules framed thereunder authorizing the use of beacons on government vehicles (some persons use such beacons even on private vehicles). The time has come when the use of beacons on the vehicles, government or non- government is drastically restricted so that the people’s right to freedom of movement is not hindered in any manner whatsoever.

Learned counsel representing some of the State Governments have not controverted the assertion made by Shri Salve that not only the high dignitaries on duty but large number of other elected and non-elected persons are allowed to use beacons and sirens/hooters causing serious invoncenience to the general public using the roads and even otherwise.

Shri Salve also brought to our notice the fact that the vehicles of the State neighbouring NCT of Delhi use beacons with flashers and sirens even though they are not permitted to do so in the NCT of Delhi.

With a view to ensure that menace of beacons on vehicles and use of sirens is stopped except in the cases of heads of the constitutional institutions, we deem it proper to give an opportunity to the Central Government as also the Governments of all the States and the Administration of the Union Territories to amend the relevant provisions of the Rules and the notifications issued under Rule 108 of the Central Motor Vehicles Rules, 1989 and corresponding provisions in the State Rules as also Rule 119 for restricting the use of beacons by the heads of political executive, legislature and judiciary only and total prohibition on the use of siren except by police, ambulance, fire fighters, Army and those permitted in Rule 119(3) of the 1989 Rules and the corresponding Rules framed by the State Governments.

We also deem it proper to indicate that it will be prudent for the Central Government and the State Governments as well as the administration of the Union Territories to substantially increase the fine for violation of the provisions of the 1988 Act and in particular those relating to the matters indicated hereinabove.” Shri Mohan Parasaran, learned Solicitor General, Shri Sidharth Luthra, learned Additional Solicitor General representing the Union of India and Delhi Administration respectively, and Shri Gaurav Bhatia, learned Additional Advocate General, Uttar Pradesh agreed that unauthorized use of red lights on motor vehicles and multi-toned horns deserves to be dealt with sternly and exemplary fine should be imposed on the violators.

After considering their statement, the Court adjourned the case to enable them to get in touch with the concerned authorities to find out a possible administrative and legislative solution to this menace. However, neither the Central Government nor the State Governments took any step for checking the menace of unauthorized use of red lights and multi-toned horns.

On the next date of hearing, i.e., 19.8.2013, the Court heard the arguments on the interpretation of Rules 108 and 119 of the Central Motor Vehicles Rules, 1989 and notification dated 11.1.2002 issued by the Central Government. Thereafter, the learned Solicitor General made available a short note on behalf of the Union of India (Ministry of Road, Transport and Highways) and the learned Amicus handed over note containing the gist of his submissions. Two further notes were made available on 4.10.2013 by Shri Sushil Kumar Jain, Senior Advocate representing the SLP petitioner.

Shri Harish Salve, learned Amicus pointed out that Rule 108(1) imposes total prohibition against showing a red light to the front or light other than red to rear and that exemption envisaged by proviso (iii) to Rule 108(1) is limited to a vehicle carrying “high dignitaries” as specified by the Central Government or the State Governments, from time to time. Shri Salve emphasized that even though the term “high dignitaries” has not been defined in the 1988 Act and the 1989 Rules, keeping in view the Preamble of the Constitution which talks of equality of status and the dignity of individual, that term must be given a restricted interpretation to include only Heads of three wings of the Republic, i.e., the President, the Vice-President, the Governors of the States, the Prime Minister, the Chief Ministers, Speaker of the Lower House of Parliament, Speakers of Legislative Assemblies and Chairmen of Legislative Councils and the Chief Justice of India and the Chief Justices of the High Courts. He submitted that while the Central Government has restricted the use of red light with or without flasher on the top front of a vehicle carrying high dignitaries who have been specified in Notification dated 11.1.2002, as amended by Notification dated 28.7.2005, and that too while on duty, the State Governments have exercised the rule making power under Section 110 and allowed the use of red lights with or without flasher by a very large number of public representatives at various levels as also the public servants and made a mockery of the object of proviso (iii) to Rule 108(1).

The learned Amicus submitted that the use of red light with or without flasher on the top of the government vehicles allotted to a large body of public representatives and civil servants has become a status symbol and those using such vehicles treat themselves as a class different than ordinary citizens. According to Shri Salve, the widespread use of red lights on government vehicles in the country is reflective of the mentality of those who served British Government in India and treated the natives as slaves. He drew our attention to the rules framed by various State Governments and the notifications issued permitting use of red lights with or without flasher on the top of the vehicles to show that the idea of permitting red light on the vehicle carrying “high dignitaries” has been reduced to a farce.

Shri Salve also referred to Rule 119 of the 1989 Rules and argued that despite total prohibition on use of multi-toned horns, vehicles used by public servants of different categories are indulging in rampant violation of the prohibition. Shri Salve pointed out that in terms of Rule 119(3), only in the vehicles used as ambulances or for fire fighting or salvage purposes or vehicles used by police officers or operators of construction equipment vehicles or officers of the Motor Vehicles Department in the course of their duty or on construction equipment vehicles, the registering authority can permit use of multi-toned horns, but such horns are being used by public representatives from the lowest to the highest level and civil servants of every possible category and those entrusted with the task of enforcing these provisions contemptuously overlook the violations.

Shri Mohan Parasaran, learned Solicitor General argued that in the absence of challenge to the vires and constitutionality of Rule 108, this Court cannot impose restriction on the power of the Central Government to specify the vehicles carrying “high dignitaries” which may be permitted to use red light with or without flasher. He further argued that there is no valid reason to give a restricted meaning to the term “high dignitaries” and it should be left to the Central and the State Governments to specify the “high dignitaries”. According to the learned Solicitor General, the vehicles carrying certain dignitaries and category of officials constitute a class by themselves and no illegality has been committed by the State Governments by allowing use of red lights on the vehicles carrying a large number of public representatives and public servants. He submitted that fixing of red lights on the vehicles used by civil servants is essential for effective discharge of their duties. Learned Solicitor General submitted that such use of red lights facilitates the movement of public representatives and civil servants. He then submitted that clause (e) of notification dated 11.1.2002 contains conditions for exercise of power by the State Government to grant exemption and argued that in some cases, the State Government might have violated the conditions specified in notification dated 11.1.2002, but that cannot be a ground for restricting the use of red lights on the vehicles used by government officers.

Shri Parasaran submitted that (1) men in uniform; (2) operational agencies which require un-hindered access to the road for performance of their duty; (3) those engaged in emergency duties such as ambulance services, fire services, emergency maintenance etc; and (4) officials in Districts, etc., such as Divisional Commissioner, DM, ADM, SDM, Executive Magistrates or where their functional requirements necessitate smooth, fast and easy passage in certain circumstances, are not entitled to use red light on their vehicles but lights of other colours, e.g., blue, white, multicoloured etc.

On the issue of use of multi-toned horns, the learned Solicitor General submitted that Rule 119(2) imposes total prohibition on the fittings of such horns on any vehicle subject to the exceptions specified in clause (3) thereof and the Union of India is fully committed to ensure total compliance of the prohibition.

Shri Siddharth Luthra, learned Additional Solicitor General supported the argument of learned Solicitor General and submitted that the term “high dignitaries” should be so interpreted as to include all those who are holding constitutional offices, i.e., the President, the Vice-President, the Prime Minister, the Speaker of Lok Sabha, the Chief Justice of India, the Judges of the Supreme Court, Chairman of the Union Public Service Commission, the Comptroller and Auditor General, the Chief Election Commissioner and their counterparts in the States. Shri Luthra also emphasized that use of the lights of different colours on the vehicles carrying civil servants is absolutely imperative because that facilitates their movement and enables them to effectively discharge their duties.

We have considered the respective arguments and perused the provisions of the 1988 Act, the 1989 Rules as also the Rules framed by various State Governments and Administration of Union Territories. We have also gone through notifications dated 11.1.2002 and 28.7.2005 issued by the Central Government under proviso (iii) to Rule 108(1) of the 1989 Rules.

The basics of Indian Republic were outlined in the Resolution moved by Pandit Jawahar Lal Nehru in the meeting of the Constituent Assembly held on 13.12.1946. The relevant portions of the same are extracted below:

“(1)This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution; (2)WHEREIN the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and (3) WHEREIN the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the Law of the Constitution, shall possess and retain the status of autonomous Units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and (4) WHEREIN all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and (5)WHEREIN shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith worship, vocation, association and action, subject to law and public morality; and (6)WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and (7)WHEREBY shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to Justice and the law of civilised nations, and (8)this ancient land attains its rightful and honoured place in the world and make its full and willing contribution to the promotion of world peace and the welfare of mankind.

I hope, the House will notice that in this Resolution, although we have not used the word ‘democratic’ because we thought it is obvious that the word ‘republic’ contains that word and we did not want to use unnecessary words and redundant words, but we have done something much more than using the word. We have given the content of democracy in this Resolution and not only the content of democracy but the content, if I may say so, of economic democracy in this Resolution.

The Resolution placed before you to-day has equality as its underlying theme. The different sections of the country have been given autonomy and India as a whole remains one with full sovereignty. We shall stand united in affairs which demand our unity. The one important thing in the Resolution is the recognition of India as a free country. Our country is one and yet we shall give full freedom to its various sections to have for themselves whatever administration they liked.

The present division of our country into provinces may change. We shall do justice to all communities and give them full freedom in their social and religious affairs.

The word ‘people’ means all the people. I am myself a servant of the farmers. To work with them is my highest glory. The term people’ is comprehensive and contains all the people, It is, therefore, my opinion that no adjective should be attached to it.” (emphasis added) On 15.8.1947, Dr. Rajendra Prasad addressed the Constituent Assembly of India wherein he identified the roles of various sections of the society and the Government. The English translation of the address is reproduced below:

“Let us in this momentous hour of our history, when we are assuming power for the governance of our country, recall in grateful remembrance the services and sacrifices of all those who laboured and suffered for the achievement of the independence we are attaining today. Let us on this historic occasion pay our homage to the maker of our modern history, Mahatma Gandhi, who has inspired and guided us through all these years of trial and travail and who in spite of the weight of years is still working in his own way to complete what is left yet unaccomplished.

Let us gratefully acknowledge that while our achievement is in no small measure due to our own sufferings, and sacrifices, it is also the result of world forces and events and last though not least it is the consummation and fulfilment of the historic traditions and democratic ideals of the British race whose farsighted leaders and statesmen saw the vision and gave the pledges which are being redeemed today. We are happy to have in our midst as a representative of that race Viscount Mountbatten of Burma and his consort who have worked hard and played such an important part in bringing this about during the closing scenes of this drama. The period of domination by Britain over India ends today and our relationship with Britain is henceforward going to rest on a basis of equality, of mutual goodwill and mutual profit.

It is undoubtedly a day of rejoicing. But there is only one thought which mars and detracts from the fulness of this happy event. India, which was made by God and Nature to be one, which culture and tradition and history of millenniums have made one, is divided today and many there are on the other side of the boundary who would much rather be on this side. To them we send a word of cheer and assurance and ask them not to give way to panic or despair but to live with faith and courage in peace with their neighbours and fulfil the duties of loyal citizenship and thus win their rightful place. We send our greetings to the new Dominion which is being established today there and wish it the best luck in its great work of governing that region and making all its citizens happy and prosperous. We feel assured that they all will be treated fairly and justly without any distinction or discrimination. Let us hope and pray that the day will come when even those who have insisted upon and brought about this division will realise India’s essential oneness and we shall be united once again.

We must realise however that this can be brought about not by force but by large heartedness and co-operation and by so managing our affairs on this side as to attract those who have parted. It may appear to be a dream but it is no more fantastic a dream than that of those who wanted a division and may well be realised even sooner than we dare hope for today.

More than a day of rejoicing it is a day of dedication for all of us to build the India of our dreams. Let us turn our eyes away from the past and fix our gaze on the future. We have no quarrel with other nations and countries and let us hope no one will pick a quarrel with us. By history and tradition we are a peaceful people and India wants, to be at peace with the world. India’s Empire outside her own borders has been of a different kind from all other Empires. India’s conquests have been the conquests of spirit which did not impose heavy chains of slavery, whether of iron or of gold, on others but tied other lands and other peoples to her with the more enduring ties of golden silk—of culture and civilisation, of religion and knowledge (gyan). We shall follow that same tradition and shall have no ambition save that of contributing our little mite to the building of peace and freedom in a war-distracted world by holding aloft the banner under which we have marched to victory and placing in a practical manner in the hands of the world the great weapon of Non-violence which has achieved this unique result. India has a great part to play. There is something in her life and culture which has enabled her to survive the onslaughts of time and today we witness a new birth full of promise, if only we prove ourselves true to our ideals.

Let us resolve to create conditions in this country when every individual will be free and provided with the wherewithal to develop and rise to his fullest stature, when poverty and squalor and ignorance and ill-health will have vanished, when the distinction between high and low, between rich and poor, will have disappeared, when religion will not only be professed and preached and practised freely but will have become a cementing force for binding man to man and not serve as a disturbing and disrupting force dividing and separating, when untouchability will have been forgotten like an unpleasant night dream, when exploitation of man by man will have ceased, when facilities and special arrangements will have been provided for the adimjatis of India and for all others who are backward, to enable them to catch up to others and when this land will have not only enough food to feed its teeming millions but will once again have become a land flowing with rivers of milk, when men and women will be laughing and working for all they are worth in fields and factories, when every cottage and hamlet will be humming with the sweet music of village handicrafts and maids will be busy with them and singing to their tune—when the sun and the moon will be shining on happy homes and loving faces.

To bring all this about we need all the idealism and sacrifice, all the intelligence and diligence, all the determination and the power of organisation that we can muster. We have many parties and groups with differing ideals and ideologies. They are all trying to convert the country to their own ideologies and to mould the constitution and the administration to suit their own view point. While they have the right to do so, the country and the nation have the right to demand loyalty from them. All must realise that what is needed most today is a great constructive effort—not strife, hard solid work—not argumentation, and let us hope that all will be prepared to make their contribution. We want the peasant to grow more food, we want the workers to produce more goods, we want our industrialists to use their intelligence, tact and resourcefulness for the common good. To all we must assure conditions of decent and healthy life and opportunities for self- improvement and self-realisation.

Not only have the people to dedicate themselves to this great task that lies ahead but those who have so far been playing the role of rulers and regulators of the lives of our men and women have to assume the role of servants. Our army has won undying glory in distant lands for its bravery and great fighting qualities. Our soldiers, sailors and airmen have to realise that they now form a national army on whom devolves the duty not only of defending the freedom which we have won but also to help in a constructive way in building up a new life.

There is no place in the armed forces of our country which is not open to our people, and what is more they are required to take the highest places as soon as they can so that they may take full charge of our defences. Our public servants in various departments of Government have to shed their role as rulers and have to become true servants of the people that their compeers are in all free countries. The people and the Government on their side have to give them their trust and assure them conditions of service in keeping with the lives of the people in whose midst they have to live and serve.

We welcome the Indian States which have acceded to India and to their people we offer our hands of comradeship. To the princes and the rulers of the States we say that we have no designs against them. We trust they will follow the example of the King of England and become constitutional rulers. They would do well to take as their model the British monarchical system which has stood the shock of two successive world wars when so many other monarchies in Europe have toppled down.

To Indians settled abroad in British Colonies and elsewhere we send our good wishes and assurance of our abiding interest in their welfare. To our minorities we give the assurance that they will receive fair and just treatment and their rights will be respected and protected.

One of the great tasks which we have in hand is to complete the constitution under which not only will freedom and liberty be assured to each and all but which will enable us to achieve and attain and enjoy its fulfilment and its fruits. We must accomplish this task as soon as possible so that we may begin to live and work under a constitution of our own making, of which we may all be proud, and which it may become our pride and privilege to defend and to preserve to the lasting good of our people and for the service of mankind. In framing that constitution we shall naturally draw upon the experience and knowledge of other countries and nations no less than on our own traditions and surroundings and may have at times to disregard the lines drawn by recent history and lay down new boundary lines not only of Provinces but also of distribution of powers and functions. Our ideal is to have a constitution that will enable the people’s will to be expressed and enforced and that will not only secure liberty to the individual but also reconcile and make that liberty subservient to the common good.

We have up to now been taking a pledge to achieve freedom and to, undergo all sufferings and sacrifices for it. Time has come when we have to take a pledge of another kind. Let no one imagine that the time for work and sacrifice is gone and the time for enjoying the fruits thereof has come. Let us realise that the demand on our enthusiasm and capacity for unselfish work in the future will be as great as, if not greater than, what it has ever been before. We have, therefore, to dedicate ourselves once again to the great cause that beckons us. The task is great, the times are propitious. Let us pray that we may have the strength, the wisdom and the courage to fulfil it.” (emphasis added) Both the leaders, who were visionaries of the time, laid emphasis on the need for ensuring equality among all, abolition of distinction between high and low, between rich and poor and change of the role of various segments of governance and also the need for protecting the dignity of every individual.

When we achieved independence in 1947, India was a baby aiming to grow to become one of the respected members of the world community. The leaders of Independence movement undertook an onerous task of framing the Constitution for the country. They studied the Constitutions of various countries and adopted their best provisions for creating an egalitarian society with the aim of ensuring justice, – social, economic and political, various types of freedoms, equality of opportunity and of status and ensuring dignity of every individual. During the drafting of the Constitution, the Preliminary notes on Fundamental Rights issued by the Constitutional Advisor, B.N. Rau, specifically dealt with the issue of equality using examples from various Constitutions to emphasize its importance. One of the issues highlighted in the note was that if the instinct of power is concentrated in few individuals then naked greed for power will destroy the basics of democratic principles. But, what we have done in the last four decades would shock the most established political systems. The best political and executive practices have been distorted to such an extent that they do not even look like distant cousins of their original forms. The best example of this is the use of symbols of authority including the red lights on the vehicles of public representatives from the lowest to the highest and civil servants of various cadres. The red lights symbolize power and a stark differentiation between those who are allowed to use it and the ones who are not. A large number of those using vehicles with red lights have no respect for the laws of the country and they treat the ordinary citizens with contempt. The use of red lights on the vehicles of public representatives and civil servants has perhaps no parallel in the world democracies.

For deciding the questions framed by Shri Salve, it will be useful to notice Section 70 of the Motor Vehicles Act, 1939 (for short, ‘the 1939 Act’), Sections 109, 110 and 111 of the 1989 Act and Rules 108, 108-A and 119 of the 1989 Rules. The same read as under:

Section 70 of the 1939 Act:

“Power to make rules – (1) A State Government may make rules regulating the construction, equipment and maintenance of motor vehicles and trailers (with respect to all matters other than the matters referred to in clause (a) or clause (b) of sub-section (1) of Section 69-B.

(2) Without prejudice to the generality of the foregoing power, rules may be made under this section governing any of the following matters, either generally in respect of motor vehicles or trailers or in respect of motor vehicles or trailers of a particular class or in particular circumstances namely- (a) x x x x (b)seating arrangements in public service vehicles and the protection of passengers against the weather;

(c) x x x x (d) brakes and steering gear;

(e) the use of safety glass;

(f)signaling appliances, lamps and reflectors;

(g) speed governors;

(h) the emission of smoke, visible vapour, sparks, ashes, grit or oil;

(i) the reduction of noise emitted by or caused by vehicles;

(j)prohibiting or restricting the use of audible signals at certain times or in certain places;

(k) prohibiting the carrying of appliances likely to cause annoyance or danger;

(l) the periodical testing and inspection of vehicles by prescribed authorities;

(m) the particulars other than registration marks to be exhibited by vehicles and the manner in which they shall be exhibited; and (n) the use of trailers with motor vehicles.” Sections 109, 110 and 111 of the 1988 Act:

“Section 109. General provision regarding construction and maintenance of vehicles – (1) Every motor vehicle shall be so constructed and so maintained as to be at all times under the effective control of the person driving the vehicle.

(2) Every motor vehicle shall be so constructed as to have right hand steering control unless it is equipped with a mechanical or electrical signaling device of a prescribed nature.

(3) If the Central Government is of the opinion that it is necessary or expedient so to do in public interest, it may by order published in the Official Gazette, notify that any article or process used by a manufacturer shall conform to such standard as may be specified in that order.

Section 110. Power of Central Government to make rules. – (1) The Central Government may make rules regulating the construction, equipment and maintenance of motor vehicles and trailers with respect to all or any of the following matters, namely :- (a) the width, height, length and overhand of vehicles and of the loads carried;

(b) the size, nature, maximum retail price and condition of tyres, including embossing thereon of date and year of manufacture, and the maximum load carrying capacity;

(c) brakes and steering gear;

(d) the use of safety glasses including prohibition of the use of tinted safety glasses;

(e) signalling appliances, lamps and reflectors;

(f) speed governors;

(g) the emission of smoke, visible vapour, sparks, ashes, grit or oil;

(h) the reduction of noise emitted by or caused by vehicles;

(i) the embossment of chassis number and engine number and the date of manufacture;

(j) safety belts, handle bars or motor cycles, auto-dippers and other equipment’s essential for safety of drivers, passengers and other road user.

(k) standards of the components used in the vehicle as inbuilt safety devices;

(l) provision for transportation of goods of dangerous or hazardous nature to human life;

(m) standards for emission of air pollutants;

(n) installation of catalytic convertors in the class of vehicles to be prescribed;

(o) the placement of audio-visual or radio or tape recorder type of devices in public vehicles;

(p) warranty after sale of vehicle and norms therefore:

Provided that any rules relating to the matters dealing with the protection of environment, so far as may be, shall be made after consultation with the Ministry of the Government of India dealing with environment.

(2) Rules may be made under sub-section (1) governing the matters mentioned therein, including the manner of ensuring the compliance with such matters and the maintenance of motor vehicles in respect of such matters, either generally in respect of motor vehicles or trailers or in respect of motor vehicles or trailers of a particular class or in particular circumstances.

(3) Notwithstanding anything contained in this section, – (a) the Central Government may exempt any class of motor vehicles from the provisions of this Chapter;

(b) a State Government may exempt any motor vehicle or any class or description of motor vehicles from the rules made under sub-section (1) subject to such conditions as may be prescribed by the Central Government.

Section 111.Power of State Government to make rules – (1) A State Government may make rules regulating the construction, equipment and maintenance of motor vehicles and trailers with respect to all matters other than the matters specified in sub-section (1) of section 110.

(2)Without prejudice to the generality of the foregoing power, rules may be made under this section governing all or any of the following matters either generally in respect of motor vehicles or trailers or in respect of motor vehicles or trailers of a particular class or description or in particular circumstances, namely:- a) seating arrangements in public service vehicles and the protection of passengers against the weather;

b) prohibiting or restricting the use of audible signals at certain times or in certain places;

c) prohibiting the carrying of appliances likely to cause annoyance or danger;

d) the periodical testing and inspection of vehicles by prescribed authorities (and fees to be charged for such test);

e) the particulars other than registration marks to be exhibited by vehicles and the manner in which they shall be exhibited;

f) the use of trailers with motor vehicles; and (g) x x x x” Rules 108, 108-A and 119 of the 1989 Rules:

“108. Use of red, white or blue light.—(1) No motor vehicle shall show a red light to the front or light other than red to rear:

Provided that the provisions of this rule shall not apply to— (i) the internal lighting of the vehicle; or (ii) the amber light, if displayed by any direction indicator or top light or as top light used on vehicle for operating within the premises like airports, ports without going outside the said premises on to public roads;

(iii) a vehicle carrying high dignitaries as specified by the Central Government or the State Government, as the case may be, from time to time;

(iv) the blinker type of red light with purple glass fitted to an ambulance van used for carrying patients; or (v) to a vehicle having a lamp fitted with an electrical bulb, if the power of the bulb does not exceed seven watts and the lamp is fitted with frosted glass or any other material which has the effect of diffusing the light;

(vi) white light illuminating the rear number plate;

(vii) white light used while reversing;

(viii) plough light provided in agricultural tractors for illuminating the implement’s working area on the ground in agricultural field operations.

(2) Use of blue light with flasher shall be determined and notified by the State Governments at their discretion;

(3) Use of blue light with or without flasher shall be permitted as top light on vehicles escorting high dignitaries entitled to the use of red light;

(4) Use of multi-coloured red, blue and white light shall be permitted only on vehicles specifically designated for emergency duties and shall be specifically specified by State Governments;

(5) The State Government shall inform the Central Government regarding publication of notifications issued by the concerned State Government under sub-rule (2) and under clause (e) of the Notification No. S.O.

52(E), dated 11th January, 2002, published in the Gazette of India, Ministry of Road Transport and Highways, regarding use of red light on top of vehicle being used by dignitaries;

(6) In case vehicle is not carrying dignitaries, red or blue light, as the case may be, light shall not be used and be covered by black cover.

108-A. Use of red or white light on construction equipment vehicles.—No construction equipment vehicle shall show a red light to the front or light other than red to the rear:

Provided that the provision of this rule shall not apply to:— (i) the internal lighting of the vehicle;

(ii) the amber light, if displayed by any direction indicator or top light;

(iii) white light illuminating the rear or side registration number plate;

(iv) white light used while reversing;

(v) light provided for illuminating the implement’s working area on the ground in off-highway or construction operations.

119. Horns.—(1) On and after expiry of one year from the date of commencement of the Central Motor Vehicles (Amendment) Rules, 1999, every motor vehicle, agricultural tractor, power tiller and construction equipment vehicle manufactured shall be fitted with an electric horn or other devices conforming to the requirements of IS:

1884—1992, specified by the Bureau of Indian Standards for use by the driver of the vehicle and capable of giving audible and sufficient warning of the approach or position of the vehicle:

Provided that on and from 1st January, 2003, the horn installation requirements for motor vehicle shall be as per AIS-014 specifications, as may be amended from time to time, till such time as corresponding Bureau of Indian Standards specifications are notified.

(2) No motor vehicle including agricultural tractor shall be fitted with any multi-toned horn giving a succession of different notes or with any other sound-producing device giving an unduly harsh, shrill, loud or alarming noise.

(3) Nothing contained in sub-rule (2) shall prevent the use on vehicles used as ambulance or for fire fighting or salvage purposes or on vehicles used by police officers or operators of construction equipment vehicles or officers of the Motor Vehicles Department in the course of their duties or on construction equipment vehicles of such sound signals as may be approved by the registering authority in whose jurisdiction such vehicles are kept.” In exercise of the power vested in it under proviso (iii) to Rule 108(1) of the 1989 Rules, the Central Government issued Notification SO 52(E) dated 11.01.2002 which was amended by Notification SO 1070(E) dated 28.7.2005. The same reads as under:

“(a) red light with flasher on the top front of the vehicle, while on duty anywhere in the country- 1) President, 2) Vice-President 3) Prime Minister 4) Former Presidents 5) Deputy Prime Minister 6) Chief Justice of India 7) Speaker of Lok Sabha 8) Cabinet Ministers of the Union 9) Deputy Chairman, Planning Commission 10) Former Prime Ministers 11) Leaders of Opposition in the Rajya Sabha and Lok Sabha 12) Judges of the Supreme Court.

(b) red light without flasher on the top front of the vehicle, while on duty anywhere in the country- 1) Chief Election Commissioner 2) Comptroller and Auditor General of India 3) Deputy Chairman, Rajya Sabha 4) Deputy Speaker, Lok Sabha 5) Ministers of the State of the Union 6) Members of the Planning Commission 7) Attorney General of India 8) Cabinet Secretary 9) Chiefs of Staff of the three services holding the rank of full General or equivalent rank 10) Deputy Ministers of the Union 11) Officiating Chiefs of Staff or the three services holding the rank of Lt. General or equivalent rank 12) Chairman, Central Administrative Tribunal 13) Chairman, Minorities Commission 14) Chairman, Scheduled Castes and Scheduled Tribes Commission 15) Chairman, Union Public Service Commission (c) Any vehicle carrying the dignitary formally designated as equivalent in rank, status and privileges to those dignitaries referred to in Items (a) and (b) above shall be entitled to use the red light as per the corresponding privileges. The vehicles carrying the dignitaries assigned rank in their personal capacities by the Ministry of Home Affairs shall be entitled to use red light as per the corresponding privileges assigned to those dignitaries referred to in items (a) and (b) above.

(d)In case the vehicle fitted with red light on top front is not carrying the dignitaries, then such red light shall not be used and be covered by a black cover.

(e) The State Governments and Union Territory Administrations shall issue similar notifications on the use of red light in respect of high dignitaries of their State Governments or Union Territory Administrations, such as Governor, Lt.Governor, Chief Minister, Chief Justices and Judges of High Courts, Chairman, Speaker and Cabinet Ministers of State/Union Territory Legislatures, etc., as the case may be.” (emphasis added) We shall first deal with the issue of use of multi-toned horns in violation of Rule 119 of the 1989 Rules and the corresponding Rules framed by the State Governments and the Administration of the Union Territories.

Since the learned Solicitor General and the Additional Solicitor General are in agreement with the learned Amicus that the prohibition contained in Rule 119(2) on the use of multi-toned horns giving a succession of different notes or with any other sound producing device giving an unduly harsh, shrill, loud or alarming noise is absolute with certain exceptions specified in sub-rule (3), the only thing required to be done by the Central and the State Governments is to implement the prohibition in its letter and spirit. Their failure to do so for last almost 24 years is inexplicable. The contemptuous disregard to the prohibition by people in power, holders of public offices, civil servants and even ordinary citizens is again reflective of ‘Raj Mentality’ and is antithesis of the concept of a Republic. We feel that the only possible remedy to curb the menace of use of multi-toned horns is to impose exemplary fine on the violators and ensure its rigorous enforcement by the concerned authorities and agencies.

On the issue of use of vehicles with red lights, we were inclined to agree with Shri Harish Salve, learned Amicus that use of signs and symbols of authority such as red lights, etc., is contrary to the constitutional ethos and the basic feature of republicanism, but, on a deeper consideration, we have felt persuaded to accept the submissions of the learned Solicitor General and the Additional Solicitor General that the term “high dignitaries” used in proviso (iii) to Rule 108(1) of the 1989 Rules would take within its fold various constitutional functionaries, i.e., holders of the constitutional offices. When the framers of the Constitution have considered it appropriate to treat those occupying constitutional positions as a special category, there is no reason for the Court to exclude them from the ambit of the term “high dignitaries”. The use of red lights on the vehicles carrying the holders of constitutional posts will in no manner compromise with the dignity of other citizens and individuals or embolden them to think that they are superior to other people, more so, because this distinction would be available to them only while on duty and would be co-terminus with their tenure. However, the Governments of most of the States and Administration of Union Territories have framed rules and issued notifications allowing use of red lights on the vehicles carrying large number of persons other than “high dignitaries”. They have also used the power of issuing notifications to enlarge the list of the persons entitled to use red lights with or without flashers whether on duty or otherwise. Most of these notifications are far beyond the scope of clause ‘c’ of Notifications dated 11.1.2002 and 28.7.2005 issued by the Central Government. It also deserves to be mentioned that there has been abysmal failure on the part of the concerned authorities and agencies of various State Governments and the Administration of the Union Territories to check misuse of the vehicles with red lights on their top. So much so that a large number of persons are using red lights on their vehicles for committing crimes in different parts of the country and they do so with impunity because the police officials are mostly scared of checking vehicles with red lights, what to say of imposing fine or penalty.

In the result, we hold as under:

1. The term “high dignitaries” used in proviso (iii) to Rule 108(1) of the 1989 Rules takes within its fold the holders of various posts, positions and offices specified in the Constitution.

2. The motor vehicles carrying “high dignitaries” specified by the Central Government and their counterparts specified by the State Government may be fitted with red lights but the red lights with or without flasher can be used only while the specified high dignitary is on duty and not otherwise.

3. The State Governments and Administration of Union Territories cannot enlarge the scope of the term “high dignitaries” beyond what is prescribed in clauses ‘c’ and ‘d’ of Notifications dated 11.1.2002 and 28.7.2005 issued by the Central Government. Therefore, they shall amend the relevant rules and notifications to bring them in tune with the 1989 Rules and notifications dated 11.1.2002 and 28.7.2002 issued by the Central Government. This exercise must be completed within a period of three months.

4. The men in uniform; operational agencies which require un-hindered access to the roads for performance of their duty; those engaged in emergency duties such as ambulance services, fire services, emergency maintenance etc, and police vehicles used as escorts or pilots or for law and order duties shall not be entitled to have red lights but lights of other colours, e.g., blue, white, multicoloured etc.

5. No motor vehicles except those specified in Rule 119(3) of the 1989 Rules or similar provisions contained in the rules framed by the State Governments or the Administration of Union Territories shall be fitted with multi-toned horns giving a succession of different notes or with any other sound producing device giving an unduly harsh, shrill, loud or alarming noise.

6. The police officers and other authorities entrusted with the task of enforcing the provisions of the 1988 Act and the Rules framed thereunder must discharge their duties without any fear or favour and should impose appropriate penalty on those who violate the prohibition contained in Rule 108(1) and Rule 119 and similar rules framed by the State Governments and the Administration of Union Territories. The owners/users of the vehicles fitted with multi-toned horns other than those allowed to use such horns under Rule 119(3) of the 1989 Rules or corresponding rules framed by the State Governments and the Administration of the Union Territories shall, within a period of one month from today, remove the multi-toned horns. The officers authorised to enforce the provisions of the 1988 Act and the rules framed thereunder by the Central Government, the State Governments and the Administration of Union Territories shall also ensure that multi- toned horns are removed from all the vehicles except those specified in rule 119(3) of the 1989 Rules or corresponding rules framed by the State Governments and the Administration of Union Territories.

7. The Chief Secretaries of all the States and the Administrators of Union Territories shall cause a notice published in the newspapers having wide circulation in their respective States and the Union Territories incorporating the directions contained in this order.

In the note submitted by the learned Solicitor General, it has been mentioned that Clause 51 of the Motor Vehicles (Amendment) Bill, 2012 contains a provision for imposition of enhanced penalty. That amendment is not shown to have been carried out so far. We hope and trust that the Legislature will make appropriate amendment and make provision for imposition of adequate penalty which may operate as deterrent against misuse of the provisions of the 1989 Act and the 1989 Rules generally and the provisions of Rules 108 and 119 in particular. The State Governments and the Administration of the Union Territories shall either amend the existing rules or frame appropriate rules for imposing deterrent penalty on the violators of the rules containing prohibition against the use of red lights and multi-toned horns or similar devices.

……………………………………………J.
[G.S. SINGHVI]
………………………………………….J.
[C. NAGAPPAN]

NEW DELHI;
DECEMBER 10, 2013.

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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2705 OF 2006
State of Maharashtra & Anr. …Appellants
VERSUS
Indian Hotel & Restaurants Assn. & Ors. …Respondents
WITH
CIVIL APPEAL NO.2704 OF 2006
State of Maharashtra & Ors. Etc. Etc …Appellants
VERSUS
Ramnath Vishnu Waringe Etc. Etc. …Respondents
WITH
CIVIL APPEAL NO._5504_____ OF 2013
[Arising out of S.L.P. (C) No.14534 of 2006]
Ghar Hakka Jagruti Charitable Trust…Appellant
VERSUS
State of Maharashtra & Ors. …Respondents

J U D G M E N T

SURINDER SINGH NIJJAR,J.

1. Leave granted in SLP (C) No.14534 of 2006.

2. These civil appeals seek to challenge common judgment and final order dated 12th April, 2006 in Writ Petition No.2450 of 2005, W.P. No.2052 of 2005, W.P.No.2338 of 2005 and W.P.No.2587 of 2005 passed by the High Court of Judicature at Bombay, whereby Section 33A of the Bombay Police Act, 1951 as inserted by the Bombay Police (Amendment) Act, 2005 has been declared to be ultra vires Articles 14 and 19(1)(g) of the Constitution of India.

Summary of Facts

3. Brief facts leading to the filing of the aforesaid writ petitions are ‘“ The Bombay Police Act, 1951 (hereinafter ‘the Act’) was enacted in the year 1951 with the object of consolidating and amending the law relating to the regulation of the exercise of powers and performance of the functions by the State Government for maintenance of public order. Section 33 of the Act authorises the State Government to frame rules regulating places of public amusement and entertainment. By virtue of Section 33 of the Act, the “Rules for Licensing and Controlling Places of Public Amusement (other than Cinemas) and Performances for Public Amusement including Melas &

Tamashas, 1960” (hereinafter ‘the Rules’) were enacted to regulate and maintain discipline in places of public amusement, melas etc.

4. In 1986, orchestra and dance in hotels was permitted to be performed pursuant to the Rules and such institutions functioned under terms and conditions laid down therein. However, several cases relating to violation of the terms and conditions of performance licences came to be registered. It is claimed that 20,196 cases were registered under Section 33(w), 110 and 117 of the Act from the year 2000 till 2005. Also, various cases of minor girls being rescued from dance bars were reported during the said period 2002-2005. The appellants have referred to the case histories from the Government Special Rehabilitation Centre for Girls (Special Home) of 10 girl children rescued from such establishments under Immoral Traffic (Prevention) Act, 1956 by Mumbai Police, which according to the appellants, correctly depict the prevailing situation.

The Government of Maharashtra, Home Department, on 10th December, 2002 passed resolution No. REH 012002/153/SE-5, noting therein :

“It has come to notice that prostitution rackets are being run through pick up points in hotel establishments in which dance programmes are being conducted (Dance Bars) and that dance forms being presented therein are horrid and obscene and that criminals are being sheltered in such hotels. Such undesirable practices going on in hotel establishments have an adverse effect on society.”

It was resolved to form a committee to make suggestions for amending the rules to deal with:

a) Remedial measures to check other undesirable practices going on in hotel establishments presenting dance programmes.

b) To prevent prostitution in hotel establishments c) Remedial measures to see that criminals are not sheltered in hotel establishments;

d) To frame a code specifying what type of dance forms should be presented in hotel establishments.

e) Creating a roving squad to check undesirable practices in hotel establishments and take strict action against owner of those establishments.

5. Pursuant to the aforesaid resolution, the Committee submitted its recommendations which were incorporated and circulated to all the concerned authorities through the letter of the Home Department No. REH 012002/153/SB-5 dated 16th July, 2004. In this letter, the suggested regulations were summarized as follows:

a. There should be restrictions on the attire of the dancers.

b. Dancing area must have a railing 3 feet high around it, and customer seats should be at least 5 feet away from the railing.

c. Dance floor to be of dimension of 10 x 12 ft so not more than 8 dancers can dance simultaneously.

d. Customer rewards for dancing are to be routed through management of the establishment and customers are banned from going near the dancers or “showering money”.

e. Names of dancers are to be registered with the establishment, a record kept of their employment, including details of identity/citizenship and place of residence.

6. This letter instructed all Judicial Magistrates and Police Commissioners to implement these recommendations with immediate effect.

7. On 6th August, 2004 the Chairperson of the Maharashtra State Commission for Women wrote to the State Government about the ongoing racketeering to lure girls to work in dance bars and their consequent acts of prostitution and immoral trafficking stating:

“Number of rackets indulging into physical and financial exploitation of girls working in dance bars by forcibly bringing them into this profession are found to be increasing alarmingly.

In the metropolis of Mumbai, the problems of the bar girls have acquired grave dimensions and have resulted even into death of many bar girls. These women are forcibly induced into prostitution leading to total destruction of their life.”…

Further “Most of the girls working in Dance Bars of Maharashtra State do not hail from State of Maharashtra, but come from other States.” …

“In the future this problem in all the probability would spoil our social health by acquiring increasingly grave dimensions, not confined only to Mumbai but extending to the National and even International levels.”

8. The letter went on to recommend a ban on such establishments by stating:

“I therefore, request you that the system of issuing permits to the Bar Girls by various departments of Government should be stopped forthwith, thereby relieving the women from their physical, sexual and financial exploitation in the future.”

9. According to the appellant, the seriousness of the issues involved is well documented of which the Home Department was fully aware.

The material available before the Home Department was as under:

a. Copies of case history of 10 girl children rescued from dance bar(s) under Immoral Traffic (Prevention) Act, 1956.

b. Copies of complaints of victims’ families against illicit relations with bar dancers.

c. Copies of complaints of Social Organizations against dance bars.

d. Copies of FIRs of cases registered in relation to dance bars.

e. Summary of cases registered under the Immoral Traffic (Prevention) Act, 1956, u/s 294 IPC, u/s 33(w) &

110 of Bombay Police Act, 1951 during the period 2000- 2005 regarding dance bars.

10. Apart from this, a study of the socio-economic situation and rehabilitation needs of the women in dance bars was conducted by PRAYAS (a field action project of the Tata Institute of Social Sciences) in 2005. This study pointed out the relevant facts regarding exploitation of minor girls in dance bars. The study also pointed out that there was presence of the element of human trafficking in the entire process; and that the environment of the dance bars was found to have negative impact on the physical and mental health of the minor girls. The study also pointed out that the atmosphere in the dance bars increased the vulnerability of the minor children to sexual exploitation. It is also the case of the appellants that independent of registration of offences under Bombay Police Act and PITA Act as well as IPC, several complaints had been received from various segments of society urging the State Government to take steps for closure of the dance bars by legislative action.

11. Taking into consideration the aforesaid material, the members of the Maharashtra Legislative Assembly expressed deep concern over the ill effects of dance bars on youth and dignity of women. The Assembly further felt that the existing measures were insufficient to tackle the subject. Just at that time, a ‘Call Attention Motion’ was tabled by Shri Vivek Patil in the State Legislative Assembly on 30th March, 2005. A detailed reply was given by Shri R.R. Patil, Hon’ble Dy. Chief Minster to the same, on 21st July, 2005. Taking stock of the entire situation, the State Government came to a tentative opinion that performance of dances in eating houses, permit rooms or beer bars in an indecent manner is derogatory to the dignity of women and is likely to deprave, corrupt and/or injure public morality. It was evident on the basis of the material available to the Government that permit rooms or beer bars licensed under the relevant rules, were indulging in exploitation of women by permitting the performance of dances in an indecent obscene or vulgar manner. The Government, therefore, considered it expedient to prohibit such dance performances in eating houses or permit rooms or beer bars.

12. It was emphasised that even prior to the aforesaid decision, the attention of the Government had been invited to mushrooming growth of illegal dance bars and their ill- effects on the society in general, including ruining of some families. The dance bars were also used as meeting points by criminals and pick up joints of girls indulging in immoral activities. Young girls desirous of earning easy money were being attracted to such dance bars and getting involved in immoral activities. The decision was, therefore, taken by the State Government to prohibit performance of dance in eating houses or permit rooms or beer bars by suitably amending the Bombay Police Act, 1951.

13. The State Government took a conscious decision upon consideration of the various factors to add Sections 33A and 33B to the Bombay Police Act. The necessary amendment was introduced in Maharashtra Legislative Assembly on 14th July, 2005. The Bill was passed by the Legislative Assembly on 21st July, 2005 and by the Legislative Council on 23rd July, 2005. The amended Act No. 35 of 2005, incorporating Sections 33A & 33B in the Bombay Police Act, 1951, came into force after receiving the assent of the Governor of the Maharashtra by publishing in the Maharashtra Gazette on 14th August, 2005.

Writ Petitions before the High Court of Bombay

14. The Amendment to the Bombay Police Act of 1951, introducing Sections 33A and 33B, was challenged as being unconstitutional in several writ petitions before the High Court of Bombay, which are tabulated as under:

|Writ Petition Number | Party | |WP 2450/2005 |Indian Hotel and Restaurants Owners | | |Association, an Association of various hotel | | |owners and bar owners and/or conductors of the| | |same, who carry on business of running | | |restaurants and bars in Mumbai. | |WP 2052/2005 |Bharatiya Bar Girls Union, a registered trade | | |union claiming a membership of 5000, whose | | |members work as bar girls in different parts | | |of Maharashtra. | |WP 2338/2005 |The Parties in this petition are a group of | | |six petitioners, who are women’s organizations| | |working in the field of women’s development. | |WP 2587/2005 |The 1st petitioner is a trust registered under| | |the Public Trust Act, working with sex workers| | |in the Malvani area of Malad in Mumbai. The | | |2nd petitioner is the Ekta Self Group which | | |consists of 10 bar dancers. | |WP 1971/2005 |The petitioner is the Association of Dance Bar| |Criminal WP |owners duly registered under the Trade Unions | | |Act, and have as their members 344 dance bars.| |WP 6930-6931/2005 |Proprietors of two establishments who are | | |affected by the amendments to the Police Act. | |WP 5503-5504/2005 |Proprietors of two establishments who are | | |affected by the amendments to the Police Act. | It was contended:

‘¢ That the State of Maharashtra does not have the legislative competence to enact the impugned law as ‘morality’ does not fall within the ambit of List II of Schedule 7 and that the impugned enactment falls in the concurrent list.

‘¢ That the impugned amendment was not reserved for the assent of the President and therefore is unconstitutional under Article 254 of the Constitution and also that the State does not have the power to implement international conventions and hence this enactment amounts to fraud on the Constitution.

‘¢ That the enactment results in interference with the independence of judiciary as no reasons are provided under S. 33A(2) of the Act for awarding lesser punishments.

‘¢ That the affidavit filed by Youraj Laxman Waghmare was not in compliance with Order 19 Rule 3 of the Civil Procedure Code as no verification clause was provided.

‘¢ That the establishment of the petitioners is a place of public entertainment and public amusement as defined under S.

2(10) and 2(9) respectively and not an “eating place” under S.2(5A) of the Bombay Prohibition Act, 1951 and hence the provisions do not bind the petitioners.

‘¢ That S. 33A and 33B are arbitrary under Article 14 as they provide for different standards of morality to institutions with similar activities and that the activities in S. 33A establishments are less obscene but nonetheless the classification bears no nexus to the object of the Amendment.

‘¢ That S. 33A is violative of Article 15 on the basis of gender discrimination as the dancers are mainly women.

‘¢ That there is violation of Article 19 (1)(a) as dance is a form of expression and that the impugned enactment is an unreasonable restriction and it is not by protected by Article 19(2).

‘¢ That there is an unreasonable restriction on right to freedom of profession as the State Government permitted and granted licenses for running such establishments being Res Commercium and that it deprives the bar owners of their right to carry on business and bar dancers the right to carry on their profession.

‘¢ That right to life under Article 21 is infringed as right to life includes right to livelihood and that the State has not provided for any rehabilitation.

15. The State of Maharashtra defended the challenge to enactment as follows:

‘¢ That the impugned enactment is covered by the List II. Entries 1- Public Order, 2- Police, 6- Public Order, 8- Intoxicants, 33- Entertainment or Amusement, 64- Offences against laws.

‘¢ That the ‘eating houses’ are covered in the impugned enactment as they would fall in public entertainment places, as license is issued to an eating house, which enjoys an additional facility to serve liquor, wine and beer.

‘¢ That there is no violation of Article 19(1)(a) as the dance being conducted is not an expression but a profession where restrictions can be imposed.

‘¢ That there is no violation of Article 15 as the ban on obscene dance applies to men and women.

‘¢ That the several minor girls danced to get rewarded with cash by enticing customers, that led to a competition between performers leading to greatest rewards reserved for the greatest indignities which escalated prostitution which lead to registration of several cases under Prevention of Immoral Trafficking Act and under Bombay Police Act. That this led the legislatures to make an independent classification of these establishments to safeguard the dignity of women, and public morality. That there are only six exempted establishments and that obscene performances are not permitted in such exempted establishments. Hence there is no violation of Article 14.

‘¢ That with regard to Article 19(I) (g) there is no absolute right to conduct trade or profession and that the same is subject to public order, decency and morality and hence the restriction is reasonable and justified.

‘¢ That there is no violation of Article 21 as special cell has been constituted by Women and Child Welfare Department to train and assist the “bar girls” in availing benefits of the various Government Schemes for employment and providing alternative dignified vocations.

16. After considering the aforesaid arguments of both the sides, the High Court has, inter alia, held that the type of dancing in both categories of establishments differs and while the difference is not capable of precise legislative definition, it is sufficient to constitute intelligible differentia. However, the fact of different types of dancing being performed bears no nexus with the object sought to be achieved, which, as understood by the Bombay High Court, was limited to the exploitation of women dancers.

Consequently, the operation of the impugned enactment is discriminatory.

17. With these observations, the High Court declared that Sections 33A and 33B of the Bombay Police Act, 1951 are ultra vires Articles 14 and 19(1)(g) of the Constitution of India.

18. We have heard the learned counsel for the parties at some length.

But before we notice the submissions at this stage it would be appropriate to reproduce the provisions in Sections 33A and 33B of the Bombay Police Act, 1951.

Sections 33A and 33B of the Bombay Police Act:

19. The provisions read as under:

“33A(1) Notwithstanding anything contained in this Act or the rules made by the Commissioner of Police or the District Magistrate under sub-section (1) of Section 33 for the area under their respective charges, on and from the date of commencement of the Bombay Police (Amendment) Act, 2005,- (a) holding of a performance of dance, of any kind or type, in any eating house, permit room or beer bar is prohibited;

(b) all performance licences, issued under the aforesaid rules by the Commissioner of Police or the District Magistrate or any other officer, as the case may be, being the Licensing Authority, to hold a dance performance, of any kind or type, in an eating house, performance, of any kind or type, in an eating house, permit room or beer bar shall stand cancelled.

(2) Notwithstanding anything contained in Section 131, any person who holds or causes or permits to be held a dance performance of any kind or type, in an eating house, permit room or beer bar in contravention of Sub-section (1) shall, on conviction, be punished with imprisonment for a term which may extend to three years and with fine which may extend to rupees two lakhs:

Provided that, in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the Court, such imprisonment shall not be less than three months and fine shall not be less than rupees fifty thousand.

(3) If it is, noticed by the Licensing Authority that any person, whose performance licence has been cancelled under Sub- section (1), holds or causes to be held or permits to hold a dance performance of any kind or type in his eating house, permit room or beer bar, the Licensing Authority shall, notwithstanding anything contained in the rules framed under section 33, suspend the Certificate of Registration as an eating house and the licence to keep a Place of Public Entertainment (PPEL) issued to a permit room or a beer bar and within a period of 30 days from the date of suspension of the Certificate of Registration and licence, after giving the licensee a reasonable opportunity of being heard, either withdraw the order of suspending the Certificate of Registration and the licence or cancel the Certificate of Registration and the licence.

(4) ………… (5)…………..

(6) The offence punishable under this section shall be cognizable and non-bailable.

33B. Subject to the other provisions of this Act, or any other law for the time being in force, nothing in section 33A shall apply to the holding of a dance performance in a drama theatre, cinema theatre and auditorium; or sports club or gymkhana, where entry is restricted to its members only, or a three starred or above hotel or in any other establishment or class of establishments, which, having regard to (a) the tourism policy of the Central or State Government for promoting the tourism activities in the State; or (b) cultural activities, the State Government may, by special or general order, specify in this behalf.

Explanation.–For the purposes of this section, “sports club” or “gymkhana” means an establishment registered as such under the provisions of the Bombay Public Trusts Act, 1950, or the Societies Registration Act, 1860 or the Companies Act, 1956, or any other law for the time being in force.” Statement of Objects and Reasons 20. The Statement of Objects and Reasons clause appended to Bill No.

LX of 2005 as introduced in the Maharashtra Legislative Assembly on 14th June, 2005 reads as under:

(1) The Commissioner of Police, District Magistrates or other officers, being Licensing Authorities under the Rules framed in exercise of the powers of Sub-section (1) of Section 33 of the Bombay Police Act, 1951 have granted licences for holding dance performance in the area under their respective charges in the State. The object of granting such performance licence is to hold such dance performance for public amusement. It is brought to the notice of the State Government that the eating houses or permit rooms or beer bars to whom licences to hold dance performance, have been granted are permitting the performance of dances in an indecent, obscene or vulgar manner. It has also been brought to the notice of the Government that such performance of dances are giving rise to exploitation of women. The Government has received several complaints regarding the manner of holding such dance performances. The Government considers that the performance of dances in eating houses, permit rooms or beer bars in an indecent manner is derogatory to the dignity of women and is likely to deprave, corrupt or injure the public morality or morals. The Government considers it expedient to prohibit the holding of such dance performances in eating houses or permit rooms or beer bars.

(2) In the last Budget Session of the State Legislature, by way of a Calling Attention Motion, the attention of the Government was invited to mushroom growth of illegal dance bars and their ill-effects on the society in general including ruining of families. The members of the State Legislature, from ruling and opposition sides, pointed out that such dance bars are used as meeting points by criminals and pick-up joints of girls Page 1267 for indulging in immoral activities and demanded that such dance bars should, therefore, be closed down. These dance bars are attracting young girls desirous of earning easy money and thereby such girls are involved in immoral activities. Having considered the complaints received from general public including the peoples’ representatives, the Government considers it expedient to prohibit the performance of dance, of any kind or type, in an eating house or permit room or beer bar, throughout the State by suitably amending the Bombay Police Act, 1951. However, a provision is also made to the effect that holding of a dance performance in a drama theatre or cinema theatre or auditorium; registered sports club or gymkhana; or three starred or above hotel; or in any other establishment or class establishments which the State Government may specify having regard to tourism policy for promotion of tourism in the State or cultural activities, are not barred but all such establishments shall be required to obtain performance licence in accordance with the said rules, for holding a dance performance.

3. The Bill is intended to achieve the following objectives.” Preamble “Whereas the Commissioners of Police, District Magistrates and certain other Officers, have granted performance licences for holding dance performance;

And whereas the object of granting such performance licences is to hold such dance performance for public amusement;

And whereas it is brought to the notice of the State Government that the eating houses, permit rooms or beer bars to whom licences to hold a dance performance have been granted are permitting performance of dances in an indecent, obscene or vulgar manner;

And whereas it has also been brought to the notice of the Government that such performance of dances are giving rise to exploitation of women;

And whereas the Government has received several complaints regarding the manner of holding of such dance performance;

And whereas the Government considers that such performance of dances in eating houses, permit rooms or beer bars are derogatory to the dignity of woken and are likely to deprave, corrupt or injure the public morality or morals.

And whereas the Government considered it expedient to prohibit such holding of performance of dances in eating houses, permit rooms and beer bars.” Legal Submissions:

21. Mr. Harish N. Salve, Mr. Gopal Subramanium and Mr. Shekhar Naphade, learned senior counsel, have on different occasions made submissions on behalf of the appellants. Mr. Gopal Subramanium has supplemented the oral submissions by written submissions. The common submissions are noted with the appellation of learned senior counsel, referring to all the aforesaid learned senior counsel.

22. Learned senior counsel have made submissions confined only to the issue as to whether Sections 33A and 33B of the Bombay Police Act infringe Article 14 and with regard to the provisions being ultra vires Article 19(1)(g) of the Constitution as all the other issues raised by the respondents were rejected by the High Court. The High Court had specifically rejected the challenge to the vires of the provisions under Article 15(1), 19(1)(a) and Article 21.

23. Learned counsel for the appellants submitted that the classification made by the impugned enactment is based on intelligible differentia, having a nexus with the object sought to be achieved. It is submitted that the impugned order suffers from flawed reasoning. The classification made between establishments under Sections 33A and 33B is not solely on the basis of the different kinds of dance performances but also on differing social impact such establishments have, by virtue of having differing dance performances and surrounding circumstances including the customers. Therefore according to Mr. Gopal Subramanium, the establishments must be understood in broader terms than is understood by the High Court. According to Mr. Harish Salve and Mr. Gopal Subramanium, the judgment of the High Court is too restrictive.

24. It was emphasised by the learned senior counsel that the High Court has failed to understand the distinction between the two provisions and the object sought to be achieved. Mr. Gopal Subramanium has listed the differences factored into the classification made by the impugned enactment. According to the learned senior counsel, the impugned enactment is based on intelligible differentia which could be categorized under the following broad heads:

(i) Type of dance; (ii) Form of remuneration; (iii) Demand for vulnerable women; (iv) Degree of Harm; (v) Regulatory feasibility.

25. It was submitted that in the banned establishments, the women who dance are not professional dancers. In fact, they are majorly trafficked into this profession or have taken this profession when they had no other option. Further, the dance is vulgar and obscene. Women are showered with money when they are dancing, which does not happen in the exempted establishments. Learned senior counsel further submitted that the classification based on type of dance need not be scientifically perfect but ought not to be palpably arbitrary. According to the learned senior counsel, in the present case, it is not just that the type of dance performed is different but the surrounding circumstances are also different.

In the exempted establishments, the distance between the dancing platform and the audience is greater than at the banned establishments. This, according to the learned senior counsel, is sufficient to justify the classification between the exempted establishments and the banned establishments. Therefore, it cannot be said that the classification is palpably arbitrary. In support of the submissions, the learned senior counsel relied on the observations made by this Court in Shashikant Laxman Kale & Anr.

follows :- “We must, therefore, look beyond the ostensible classification and to the purpose of the law and apply the test of ‘palpable arbitrariness’ in the context of the felt needs of the times and societal exigencies informed by experience to determine reasonableness of the classification.

26. Reliance was also placed Welfare Association, A.R.P., Maharashtra that:

“……….It is difficult to expect the legislature carving out a classification which may be scientifically perfect or logically complete or which may satisfy the expectations of all concerned, still the court would respect the classification dictated by the wisdom of the legislature and shall interfere only on being convinced that the classification would result in pronounced inequality or palpable arbitrariness on the touchstone of Article 14.”

27. With regard to the form of remuneration, learned senior counsel submitted that remuneration to dancers in banned establishments is generally made out of the money which is showered on them. This creates an unhealthy competition between the dancers to attract the attention of the customers. Therefore, each dancer tries to outdo her competitors in terms of sexual suggestion through dance.

This, in turn, creates an unsafe atmosphere not just for the dancers, but also for the other female employees of such establishments.

28. Relying on the report by Shubhada Chaukhar, learned senior counsel submitted that 84% of the bar dancers are from outside the State of Maharashtra. These girls are lured into bar dancing on false pretext. Supporting this submission, the following observations are pointed out in the same report:

“Some unmarried girls have entered the world of bars just because of its glamour. Not a few have come of their own free will. Many less educated girls are attracted to a livelihood that makes them quick money”.

29. On the basis of the aforesaid, learned senior counsel submitted that the activities that are carried out in establishments covered under Section 33A i.e. not just the dance itself but the surrounding circumstances of the dance are calculated to raise the illusion of access to women, irrespective of the consent or dignity of women, in men who are often in an inebriated condition.

In this context, learned senior counsel relied on the case history of girl children rescued from the dance bar(s) under Immoral Traffic (Prevention) Act, 1956; complaints of victims family against illicit relations with bar dancers; complaints of social organizations against dance bars; copies of First Information Reports of cases registered in relation to dance bars; summary of cases registered under PITA Act, 1956, under Section 294 IPC, under Section 33(w) & 110 of Bombay Police Act, 1951 during the period 2000-2005 regarding dance bars.

30. It is submitted by the learned senior counsel for the appellants that by comparison such complaints have been minimal in the case of exempted establishments. The same kind of behaviour is not seen as a norm. Learned senior counsel submitted that undesirable, anti social and immoral traffic is directly relatable to certain kind of dancing activities performed in prohibited establishments which are not performed in exempted establishments. Therefore, there is a rational distinction between the exempted establishments and the prohibited establishments. In support of the submissions, reliance was placed on the judgment of this Court in the case of State of constitutional validity of Immoral Traffic in Women and Girls Act, 1956 was called in question. This Court upheld the validity of the classification between a prostitute who is a public nuisance and one who is not.

31. Taking up the next head on which the classification has been sought to be justified as intelligible differentia, i.e. “the demand for vulnerable women,” learned senior counsel relied on certain observations made by one Cathatine Mackinnon (1993) in an article entitled “Prostitution and Civil Rights” which appeared in Michigan Journal of Gender & Law, Volume I : 13-31. The argument given by the author therein was that:

“If prostitution is a free choice, why are the women with the fewest choices the ones most often found doing it?… The money thus acts as a form of force, not as a measure of consent. It acts like physical force does in rape.”

32. Taking cue from the aforesaid comments, learned senior counsel submitted that the dancing that takes place in the banned establishments has a similar effect on the psyche of the woman involved, and functions within the same parameters of the understanding of consent. It was emphasised that as a general rule, dancing in a dance bar is not a profession of choice, but of necessity, and consequently, there is a demand not for women of means and options, but vulnerable women, who may not have families and communities to turn to and are completely dependent on their employers. In support of the aforesaid submissions, reliance was placed upon Prayas and Shubhada Chaukar Reports.

33. It was submitted that the High Court erroneously ignored the contents of the reports extracted above.

34. Now coming to the next head: “Justifying the classification on the criterion of “Degree of Harm.” The appellants emphasised that the characteristics of the dancing that is sought to be prohibited have, to a greater degree than the activities that may be comparable at first blush, created an atmosphere where physical and emotional violence to women was both profitable and normalized. It is, therefore, rational to classify these establishments as a separate class based on the degree of harm that they trigger. Support for this submission is sought from the S.R. Tendolkar[4] wherein it was observed as follows:

“The decisions of this Court further establish ‘“ (d) that the legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest.”

35. Reliance was also placed on the observations made in the case of case whereby an Act in Pennsylvania made it unlawful for unnaturalised foreign born residents to kill wild game, except in defence of person or property. The possession of shot guns and rifles by such persons was made unlawful. The Act was challenged as being unconstitutional under due process and equal protection provisions of the 14th Amendment of the United States Constitution. The Court upheld the Act as constitutional and observed as follows:

“The discrimination undoubtedly presents a more difficult question, but we start with the general consideration that a State may classify with reference to the evil to be prevented, and that if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out. A lack of abstract symmetry does not matter. The question is a practical one dependent upon experience. The demand for symmetry ignores the specific difference that experience is supposed to have shown to mark the class. It is not enough to invalidate the law that others may do the same thing and go unpunished, if as a matter of fact, it is found that the danger is characteristic of the class named. Lindsley v. Natural Carbonic Gas Co., 220 U.S.

61,80,81. The State ‘may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses’…… The question therefore narrows itself to whether this court can say that legislature of Pennsylvania was not warranted in assuming as its premise for the law that resident unnaturalised aliens were the peculiar source of the evil that it desired to prevent. Barrett v Indiana, [1913] USSC 155; 229 U.S. 26, 29.

Obviously the question so stated is one of local experience on which this court ought to be very slow to declare that the stale legislature was wrong in its facts. Adams v Milwaukee, 228 US.

572, 583. If we might trust popular speech in some states it was right – but it is enough that this Court has no such knowledge of local conditions as to be able to say that it was manifestly wrong.”

36. Reliance was also placed on the observations made in Keokee “It is more pressed that the act discriminates unconstitutionally against certain classes. But while there are differences of opinion as to the degree and kind of discrimination permitted by the Fourteenth Amendment, it is established by repeated decisions that a statute aimed at what is deemed an evil, and hitting it presumably where experience shows it to be most felt, is not to be upset by thinking up and enumerating other instances to which it might have been applied equally well, so far as the court can see. That is for the legislature to judge unless the case is very clear.”

People of the State of New York[7], in which the New York Statute was challenged, as it prohibited employment of women in restaurants in cities of first and second class between hours of 10 p.m. and 6 a.m. The Court upheld the legislation in the following words :

“Nor is the statute vulnerable to the objection that it constitutes a denial of the equal protection of the laws. The points urged under this head are (a) that the act discriminates between cities of the first and second class and other cities and communities; and (b) excludes from its operation women employed in restaurants as singers and performers, attendants in ladies’ cloak rooms and parlors, as well as in lunch rooms or restaurants conducted by employees solely for the benefit of their employees.

The limitation of the legislative prohibition to cities of the first and second class does not bring about an unreasonable and arbitrary classification. Packard v Banton, ante, 140; Hayes v Missouri[1887] USSC 27; , 120 U.S. 68. Nor is there substance in the contention that the exclusion of restaurant employees of a special kind, and of hotels and employees’ lunch rooms renders the statute obnoxious to the Constitution. The statute does not present a case where some persons of a class are selected for special restraint from which others of the same class are left free (Connolly v Union Sewer Pipe Co.[1902] USSC 71; , 184 U.S. 540, 564); but a case where all in the same class of work are included in the restraint. Of course, the mere fact of classification is not enough to put a statute beyond reach of equality provision of the Fourteenth Amendment. Such classification must not be “purely arbitrary, oppressive or capricious”. American Sugar Refining Co. V Louisiana, [1900] USSC 187; 179 U.S. 89, 92. But the mere production of inequality is not enough. Every selection of persons for regulation so results, in some degree. The inequality produced, order to counter the challenge of the constitution must “actually and palpably unreasonable and arbitrary.” ………………………. The U.S. Court then relied upon the observations made in Joseph Patsone’s case (supra), Keokee Consolidated Coke Co. case (supra) which we have already noticed.

38. Further, learned counsel supported the submissions by relying upon the court held as under:

“……The Courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and finally that in order to sustain the presumption of Constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.”

39. On the basis of the aforesaid extracts, learned counsel submitted that the classification between the exempted establishments and prohibited establishment is also based on “Degree of Harm”. The legislature is the best judge to measure the degree of harm and make reasonable classification.

40. Coming to the next factor’“ Regulatory Feasibility, which, according to the learned senior counsel, supports the validity of the classification. It was submitted that the import of the impugned enactment is not that, what is prohibited in establishments under Section 33A is to be permitted in establishments under Section 33B. It is submitted by the appellants that the acts which are degrading, dehumanising and facilitating of gender violence in society do not cease to be so simply by virtue of it being made exclusively available to an economically stronger sections of society. It is the submission of the appellants that the State has already made extensive regulatory provisions under various enactments. This relates to the grant of nature of license, terms and conditions of such licence, performance permits. All these regulatory measures are with a view to cure social evils. The impugned enactment, according to the appellants, is a form of an additional regulation. It is justified on the ground that the existing system of licenses and permits is not sufficient to deal with the problem of ever increasing “dance bars”. Relying on the observations made submitted by the appellants that it is the prerogative of the Government to decide if certain forms of regulation are insufficient, to provide for additional regulation. Reliance was People of the State of New York (supra) which are as under :- “The basis of the first contention is that the statute unduly and arbitrarily interferes with the liberty of two adult persons to make a contract of employment for themselves. The answer of the state is that night work of kind prohibited, so injuriously threatens to impair their peculiar and natural functions, and so exposes them to the dangers and menaces incident to night life in large cities, that a statute prohibiting such work falls within the police power of the state to preserve and promote the public health and welfare.

The legislature had before it a mass of information from which it concluded that night work is substantially and especially detrimental to the health of women. We cannot say that the conclusion is without warrant…. The injurious consequences were thought by the legislature to bear more heavily against women than men and considering their delicate organism, there would seem to be good reason for so thinking. The fact, assuming it to be such, properly may be made the basis of legislation applicable only to women. Testimony was given upon the trial to the effect that the night work in question was not harmful; but we do not find it convincing. Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature; and if the question of what facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker. The state legislature here determined that the night employment of the character specified, was sufficiently detrimental to the health and welfare of women engaging in it to justify its suppression; and, since we are unable to say that the finding is clearly unfounded, we are precluded from reviewing the legislative determination”.

41. Relying on the aforesaid, it is submitted that exempted establishments as understood by Section 33B are gymkhanas, three starred or above hotels. In order to be considered three stars or above establishments, such establishments have to meet greater degrees of scrutiny, both from Government and from private associations (hoteliers, reviewers etc). In fact, such establishments generally maintain standards higher than the standards expected of them under the regulation. Therefore, the regulation of such establishments is significantly easier, as opposed to the prohibited establishments. These establishments function, according to the appellants, to a greater degree, outside the constant scrutiny of the law. It is also pointed out that it is significantly easier to police the exempted establishments, which at present are six in number, than attempting to police the much greater number of prohibited establishments. It is also pointed out that in cases where an exempted establishment is found carrying out activities prohibited in S.33A, it is incumbent on the relevant authority to revoke the permission for such acts. Therefore, it was submitted that the significant difference in feasibility of regulation is another basis for classifying prohibited establishments. The High Court, according to the counsel, failed to examine the two provisions in a proper perspective.

42. The next submission of the appellants is that “the objective of the Act is an expression of the Obligation on the State to secure safety, social order, public order and dignity of women.” It is submitted that a bare perusal of the Preamble of the amending Act and the Statement of Objects and Reasons would make it clear that the State enacted the legislation only after receipt of complaints from various social organizations as well as from various individuals. The Preamble makes it clear that the legislature had enough material to show that the performance of dance in the said bars gives rise to exploitation of women, and further that the performance of dances in eating houses, permit rooms or beer bars are derogatory to the dignity of women and are likely to deprave, corrupt or injure the public morality or morals. The High Court ought to have considered the Statement of Objects and Reasons and Preamble of the Act to discern the true intention of the legislature. In support of the submission that the Court ought to have looked at the objects and reasons, reliance is placed on the observations of this Court in Shashikant Laxman Kale (supra), wherein it is observed as follows:

“It is first necessary to discern the true purpose or object of the impugned enactment because it is only with reference to the true object of the enactment that the existence of a rational nexus of the differentia on which the classification is based, with the object sought to be achieved by the enactment, can be examined to test the validity of the classification…”

43. It was reiterated that the High Court has given a very restrictive interpretation to the phrase “exploitation of women”. The expression would include not only the women who dance in the prohibited establishments but also the waitresses who work in the same establishments. It would also include the effect of the dance bar on gender relations of not just the bar dancer, but for the women around the area. The High Court, according to the appellants, failed to take into account the object that the statutory provisions are in respect of an activity of exploitation of women conducted for financial gain by bar owners and their intermediaries. It is emphasised that the issue involved in this matter is not merely about dancing in the bars, but involves larger issues of dignity of women, the destruction of environments and circumstances where it is profitable to keep women vulnerable.

In such circumstances, the law is being used as a tool for dealing with the evils of human trafficking and prostitution, rather than simply prohibiting such activity without the administrative resources to effectively implement such prohibition. It is further submitted that the State is bound by this duty to protect the interest of its citizens especially its weaker sections under the Constitution. The legislation is sought to be justified on the touchstone of Article 23, Article 39(e) and Article 51A(e) of the Constitution. The action of’ the Government is also justified on the ground that it is necessary to emancipate women from male dominance as women in dance bars are looked upon as objects of commerce. It is emphasised that the bar dancing is obscene, vulgar and casts considerable amount of negative influence on institutions like family, society, youth etc.

44. Mr. Gopal Subramanium also emphasised that the State cannot shut its eyes to the larger social problems arising out of bar dancing which is uncontrolled and impossible to regulate. He sought to justify the aforesaid submission by taking support from some Slaton, District Attorney, Atlanta Judicial Circuit, Et. Al[10].

This case provides, according to the learned senior counsel, a discussion on relation with obscenity and pornography and the duty of the state to regulate obscenity. Reliance is placed on the following observations at pp 58, 60, 63, 64 and 69.

“It is not for us to resolve empirical uncertainties underlying state legislation, save in exceptional Case where that legislation plainly impinges upon rights protected by the Constitution itself.” ………… “Although there is no conclusive proof of a connection between anti social behaviour and obscene material, the legislature of Georgia could quite reasonably determine that such a connection does or might exist. In deciding Roth, this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect the social interest in order and morality.” Roth v. United States, 354 U.S.., at 485, quoting Chaplinsky v New Hampshire, [1942] USSC 50; 315 US. 568, 572 (1942).” ………….. “The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex. Nothing in the Constitution prohibits a state from reaching such a conclusion and action on it legislatively simply because there is no conclusive evidence or empirical data.” ……………….. “The states have the power to make a morally neutral judgment that public exhibition of obscene material or commerce in such material has a tendency to injure community as a whole, to endanger the public safety or to jeopardise in Mr. Chief Justice Warren’s words, the States’ “right … to maintain a decent society”. Jacobellis v Ohio 378 US at 199 (dissenting opinion)”

45. It is further pointed out that the decision to ban obscene dancing is also in consonance with Convention on the Elimination of All Forms of Discrimination Against Women (CEADAW). Learned senior counsel further submitted that establishments covered by Section 33A have a greater direct and indirect effect on the exploitation of women, and the resultant and causative violence against women.

It is submitted that the degree of effect on the subjects covered by the objects of the enactment are greater than any effect that might be attributable to exempted establishments.

46. In any event, exempted establishments will also not be permitted to carry out such performances, but are left to the operation of parallel regulation simply because they are significantly fewer in number and their very nature facilitates effective regulation.

Therefore, according to the learned senior counsel, the impugned enactment is not discriminatory as it makes a reasonable legislative classification which has a direct nexus with the object sought to be achieved by the Act. In support of the proposition that there is a reasonable classification and that the State has the power to make such classification, reliance is placed on the observations made by this Court in Kedar Nath follows:

“Now it is well settled that the equal protection of the laws guaranteed by Article 14 of the Constitution does not mean that all laws must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purpose of legislation. To put it simply all that is required in class or special legislation is that the legislative classification must not be arbitrary but should be based on an intelligible principle having a reasonable relation to the object which the legislature seeks to attain. If the classification on which the legislation is founded fulfils this requirement, then the differentia which the legislation makes between the class of persons or things to which it applies and other persons or things left outside the purview of the legislation cannot be regarded as a denial of the intelligible differentia having a reasonable relation to the legislative purpose.”

47. Reliance is also placed on the observations of this Court in Ram the scope and ambit of Article 14 of the Constitution of India.

48. Finally, it is submitted that the Government had various documents and reports based on which they felt it important to regulate the menace of trafficking and to uphold the dignity of women. On the basis of the aforesaid material, it is submitted that the Government of Maharashtra enacted the amendment in good faith and knowledge of existing conditions after recognizing harm, confined the restrictions to cases where harm to women, public morality etc. was the highest. The High Court has failed to appreciate all the documentary evidence placed and gave a narrow meaning to the object of the Act which is in the larger interest of the women and society.

Article 19(1)(g) –

49. With regard to whether there is any infringement of rights under Article 19(1)(g), it is submitted by the learned senior counsel that the fundamental right under Article 19(1)(g) to practice any profession, trade or occupation is subject to restrictions in Article 19(6). Therefore, by prohibiting dancing under Section 33A, no right of the bar owners are being infringed. The curbs imposed by Sections 33A and 33B only restrict the owners of the prohibited establishments from permitting dances to be conducted in the interest of general public. The term “interest of general public” is a wide concept and embraces public order and public morality. The reliance in support of this proposition was placed Ors.[12] Reference was also made to Municipal Corporation of the wherein this Court gave a wide meaning to “interest of general public” and observed as follows :

“The expression in the interest of general public’ is of wide import comprehending public order, public health, public security, morals, economic welfare of the community and the objects mentioned in Part IV of the Constitution.”

50. Factually, it was emphasised that the history of the dance bars and the activities performed within the dance bars show that they are not set up with an intention to propagate art, exchange ideas or spread knowledge. It is submitted that the dance performances in these prohibited establishments were conducted in obscene and objectionable manner to promote the sale of liquor. Therefore, the main activity conducted in these prohibited establishments is not a fundamental right. There is no fundamental right in carrying business or sale in liquor and Government has power to regulate the same. There is also overwhelming evidence on record to show that girls have not opted for this profession out of choice but have been brought into this by middle men or other exploitative factors. There is no free and informed choice being made by the bar dancers. This is sought to be supported by the observations in the Prayas Report where it is stated :

“In conclusion, the study has shown that most women did not know the nature of their employment at the time of getting into dance bars for work, and they were brought into this work through middle men. The basic elements of trafficking were found to be present in the process of entry, though it may not have been in its overt form. Having come here and seeing no other options, they had no choice but to continue in this sector….”.

51. The SNDT Report also shows that only 17.40% of the bar girls are from State of Maharashtra. The bar owners have been exploiting the girls by sharing the tips received and also capitalizing on their performance to serve liquor and improve the sales and business.

Again reliance is placed on the observations made in Prayas Report at page 47 which is as under :

“The women working as either dancers or waiters were not paid any salary, but were dependant on tips given by customers in the bar, which varies from day-to-day and from women to another.

This money is often shared with the bar owner as per a fixed ratio ranging from 30 to 60 percent.”

52. The same conclusion is also found in Shubadha Chaukar Report where it is stated that :

“Tips given by enamoured customers are the main income of girls working in the bars. Normally dancers do not get a salary as such. The bar owner makes it look like he is doing a favour by allowing them to make money by dancing. So he does not give them a salary. On the contrary a dancer has to hand over to the owner 30 to 40 per cent of what she earns. This varies from bar to bar.”

53. On the basis of the above, it was submitted that the bar owners with a view to attract customers introduced dance shows where extremely young girls dance in an indecent, obscene and vulgar manner which is detrimental to the dignity of women and depraves and corrupt the morality.

54. The second limb of the submission is that the prohibition does not bar the restaurant owners or the beer parlour owners from running their respective establishments i.e. restaurant business, beer parlours etc. What is being prohibited is only the dancing as a form of entertainment in such establishments. The bar owners can still conduct entertainment programmes like music, orchestras etc which are not prohibited. It is submitted that loss of income cannot be a reason for the bar owners to claim that their right to trade and profession is being infringed. This submission is sought to be supported by the observations of this Court in T.B. Ibrahim observed by this Court as follows:

“…………..There is no fundamental right in a citizen to carry on business wherever he chooses and his right must he subject to any reasonable restriction imposed by the executive authority in the interest of public convenience. The restriction may have the effect of eliminating the use to which the stand has been put hitherto but the restriction cannot be regarded as being unreasonable if the authority imposing such restriction has power to do so. Whether the abolition of stand was conducive to public convenience or not is a matter entirely for the transport authority to judge, and it is not open to the court to substitute its own opinion for the opinion of the Authority, which is in the best position, having regard to its knowledge of local conditions to appraise the situation”.

55. It was next submitted that the High Court wrongly concluded that the activity of young girls/women being introduced as bar dancers is not Res Extra Commercium. Such activity by the young girls is a dehumanising process. In any event, trafficking the girls into bar dancing completely lacks the element of conscious selection of profession. An activity which has harmful effects on the society cannot be classified as a profession or trade for protection under Article 19(1)(g) of the Constitution. Such dances which are obscene and immoral would have to be considered as an activity which is ‘Res Extra Commercium’. The High Court has wrongly concluded otherwise. Reliance is also placed on the observations Chamarbaugwala & Anr.[15] In this case, it was observed by this Court that activity of gambling could not be raised to the status of trade, commerce or intercourse and to be made subject matter of a fundamental right guaranteed by Article 19(1)(g). Similarly, in this case the dance bars having negative impact on family, women, youth and has been augmenting the crime rate as well as trafficking and exploitation of women. Reference was again made to the various reports and studies to show the disruptive opinion of the dance bars in the families of the persons employed in such dance bars. Reliance was placed on the judgment of this Court in in support of the submission that the trading in liquor is not a fundamental right. This Court further observed that trafficking in women or in slaves or in counterfeit coins or to carry on business of exhibiting or publishing pornographic or obscene films and literature is not a fundamental right as such activities are vicious and pernicious. Reliance was placed on the following observations:

“The correct interpretation to be placed on the expression “the right to practice any profession, or to carry on any occupation, trade or business” is to interpret it to mean the right to practice any profession or to carry on any occupation, trade or business which can be legitimately pursued in a civilised society being not abhorrent to the generally accepted standards of its morality. ……This is apart from the fact that under our Constitution the implied restrictions on the right to practice any profession or to carry on any occupation, trade or business are made explicit in clauses (2) to (6) of Article 19 of the Constitution and the State is permitted to make law for imposing the said restrictions.” “It does not entitle citizens to carry on trade or business in activities which are immoral and criminal and in articles or goods which are obnoxious and injurious to health, safety and welfare of the general public, i.e., res extra commercium, (outside commerce). There cannot be a business in crime. (c) Potable liquor as a beverage is an intoxicating and depressant drink which is dangerous and injurious to health and is, therefore, an article which is res extra commercium being inherently harmful. A citizen has, therefore, no fundamental right to do trade or business in liquor. Hence the trade or business in liquor can be completely prohibited.” 56. The aforesaid observations were reiterated in State of Punjab &

aforesaid observations, it was submitted that in the banned establishments, the dance is performed amidst consumption of liquor and the State has every right and duty to regulate the consequence emanating from such circumstances. In support of this submission, the appellants relied on the judgment of the United BELLANCA, DBA The Main Event, Et Al.[18]. In this case, the question raised was about the power of a State to prohibit topless dancing in an establishment licensed by State to serve liquor. It was claimed that the prohibition was violative of United States Constitution. U.S. Supreme Court, upon consideration of the issue, observed as follows:

“In short, the elected representatives of the State of New York have chosen to avoid the disturbances associated with mixing alcohol and nude dancing by means of reasonable restriction upon establishments which sell liquor for on-premises consumption.

Given the “added presumption in favour of the validity of the state regulation” conferred by Twenty first Amendment, California v LaRue, 409 U. S., at 118, we cannot agree with the New York Court of Appeals that statute violates United States Constitution. Whatever artistic or communicative value may attach to topless dancing is overcome by State’s exercise of its broad powers arising under the Twenty-first Amendment. Although some may quarrel with the wisdom of such legislation and may consider topless dancing a harmless diversion, the Twenty first Amendment makes that a policy judgment fin- the state legislature, not the courts.”

57. It was also submitted that in the present case the dance is conducted in an obscene manner and further the dance bars eventually happen to be pick up locations that also propagate prostitution in the area, which is sought to be prevented by the legislation. The appellants also relied on the judgment in Regina the clubs who were charged with keeping a disorderly house, which arose out of matters that occurred in course of strip tease performances. The Court of Criminal Appeal (England) held that as regards the cases in which indecent performances or exhibition are alleged, a disorderly house is a house conducted contrary to law and good order in that matters performed or exhibited are of such a character that their performance or exhibition in a place of common resort amounts to an outrage of public decency or tends to corrupt or deprave the dignity of women and public morality.

Therefore in the present circumstances, the State, in the interest of dignity of women, maintenance of public order and morality has banned dances in such establishments where regulation is virtually impossible. Since the obscene and vulgar dancing is a res extra commercium, the establishments cannot claim a fundamental right to conduct dance therein.

58. It is further submitted that the legislation also does not infringe any fundamental right of the bar dancers. The prohibition contained under Section 33A is not absolute and the dancers can perform in exempted establishments. This apart, the dancers are also free to dance in auditoriums, at parties, functions, musical concerts, etc. According to the appellants, another important facet of the same submission is that the rights of the bar girls to dance are subject to the right of the bar owners to run the establishment. In other words, the right of the bar girls are derivative and they do not have absolute right to dance as a vocation or profession in the dance bars. This right would be automatically curtailed in case the dance bar is closed for economic reasons or as a result of licence being cancelled. In support of the submission, the appellants relied on a judgment of this Court in Fertilizer Corporation Kamgar Union (Regd.), Sindri :- “14. The right of the petitioners to carry on the occupation of industrial workers is not, in any manner, affected by the impugned sale. The right to pursue a calling or to carry on an occupation is not the same thing as the right to work in a particular post under a contract of employment. If the workers are retrenched consequent upon and on account of sale, it will be open to them to pursue their rights and remedies under the industrial laws. But the point to be noted is that the closure of an establishment in which a workman is for the time being employed does not by itself infringe his fundamental right to carry on an occupation which is guaranteed under article 19(1)(g) of the constitution.”

59. Relying on the above, it is submitted that there is no absolute right for the bar girls to be employed in the dance bars and that the right to work would be subject to the continuation of the establishment. Hence, it is a derivative right emanating from the right of the dance bar owners to run the establishments subject to restrictions imposed.

60. It is next submitted that the right to trade and profession is subject to reasonable restriction under Article 19(6) of the Constitution. The decision to impose the ban was to defend the weaker sections from social injustice and all forms of exploitation. In the instant case, the moral justification is accompanied with additional legitimate state interest in matters like safety, public health, crimes traceable to evils, material welfare, disruption of cultural pattern, fostering of prostitution, problems of daily life and multiplicity of crimes.

Learned senior counsel for the appellants strongly relied upon the Statement of Objects and Reasons and the Preamble of the amending Act to reiterate that the State is enjoined with the duty to protect larger interest of the society when weaker sections are being exploited as objects of commerce and when there is issue of public order and morality involved.

61. The appellants have relied on a number of judgments of this Court to illustrate the concept of “reasonable restriction” and the parameters within which the court will examine a particular restriction as to whether it falls within the ambit of Article Inspector Kerala Govt. & Ors.[23]. Since the principles are all succinctly defined, we may notice the observations made by this Court in B.P. Sharma’s case (supra).

“The main purpose of restricting the exercise of the right is to strike a balance between individual freedom and social control.

The freedom, however, as guaranteed under article 19(1)(g) is valuable and cannot be violated on grounds which are not established to be in public interest or just on the basis that it is permissible to do so. For placing a complete prohibition on any professional activity there must exist some strong reason for the same with a view to attain some legitimate object and in case of non-imposition of such prohibition, it may result in jeopardizing or seriously affecting the interest of the people in general. If it is not so, it would not be a reasonable restriction if placed on exercise of the right guaranteed under article 19 (1)(g). The phrase ”in the interest of the general public” has come to be considered in several decisions and it has been held that it would comprise within its ambit interests like public health and morals (refer to State of Maharashtra v Himmatbhai Narbheram Rao (AIR 1970 SC 1157), economic stability On consideration of a catena of decisions on the point, this Court, in a case reported in ‘IMF Ltd v Inspector, Kerala Government (1998) 8 SCC 227 has laid certain tests on the basis of which reasonableness of the restriction imposed on exercise of the right guaranteed under Article 19 (1)(g) can be tested.

Speaking for the Court, Saghir Ahmad (as he then was), laid down such considerations as follows:

“(1) While considering the reasonableness of the restrictions, the court has to keep in mind the directive principles of State policy.

(2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of general public.

(3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to the changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances.

(4) A just balance has to be struck between the restrictions imposed and the social control envisaged by clause (6) of article 19.

(5) Prevailing social values as also social needs which are intended to be satisfied by restrictions have to be borne in mind. (see State of U.P. v Kaushailiya) (6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions and the object of the Act, then a strong presumption in favour of constitutionality of the Act will naturally arise.” Mirzapur Moti Kureshi Kassab Jamat (supra) in support of the submission that Statement of Objects and Reasons would be relevant for considering as to whether it is permissible to place a total ban under Article 19(6). After considering the principles laid down earlier, this court concluded as under:- “We hold that though it is permissible to place a total ban amounting to prohibition on any profession, occupation, trade or business subject to satisfying the test of being reasonable in the interest of general public, yet, in the present case banning slaughter of cow progeny is not a prohibition but only a restriction.”

63. Relying on the aforesaid, it was submitted that while considering the reasonableness, the court should consider the purpose of restriction imposed, extent of urgency, prevailing conditions at the time when the restriction was imposed. According to the appellants, in the instant case, the social order problems in and around the dance bars had reached such heights which were beyond the tolerable point. The tests laid down earlier were reiterated case, it is observed as follows :

“18……… In applying the rest of reasonableness, the broad criterion is whether the law strikes a proper balance between social control on the one hand and the right of individual on the other hand. The court must take into account factors like nature of the right enshrined, underlying purpose of the restriction imposed, evil sought to be remedied by the law, its extent and urgency, how far the restriction is or is not proportionate to the evil and the prevailing conditions at that time.”

64. Relying on the aforesaid, it was submitted that the larger issue involved was the trafficking of young women and minors into dance bars and also incidentally leading to prostitution which could have been prevented to a large extent only by imposing the ban. In support of this, learned counsel have relied on the Prayas Report which shows that 6% of the women working in dance bars are minors and 87% are between the age of 18-30 years. Similarly, SNDT report states that minors constitute upto 6.80 % and those between 19 to 30 years of age constitute 88.20%. Prayas Report further states that “It was found that the women respondents did not find any dignity in this work. This is borne out by the fact that 47% of women did not reveal their work to family members and outsiders.

They are often exposed to the sexual overtures of overenthusiastic customers and are aware of their vulnerability to get exploited”.

The appellants also relied on a number of complaints and the various cases of minor girls being rescued from dance bars during the period 2002-05 to buttress their submission that the young girls were subjected to human trafficking. Learned senior counsel also submitted that the High Court has erroneously concluded that if the women can safely work as waitress in the Restaurants why can they not work as dancers. The learned senior counsel also submitted that the High Court wrongly proceeded on the basis that there was no evidence before the State or the Court in support of the legislation. On the basis of the above, it is submitted that the restrictions imposed are reasonable and the legislation deserves to be declared intra vires the constitutional provisions.

65. Further, it was submitted that the legislative wisdom cannot be gone into by the court. The Court can only invalidate the enactment if it transgresses the constitutional mandate. It is submitted that invalidation of a statute is a grave step and that the legislature is the best judge of what is good for the community. The legislation can only be declared void when it is totally absurd, palpably arbitrary, and cannot be saved by the court. It is reiterated that the principle of “Presumption of Constitutionality” has to be firmly rebutted by the person challenging the constitutionality of legislation. The United States Supreme Court had enunciated the principle of constitutionality in favour of a statute and that the burden is upon the person who attacks it to show that there has been a clear transgression of any Constitutional provision. The appellants Union of India & Ors.[25] wherein this Court observed as follows :

“It must be presumed that a legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds”

66. The same principle was reiterated by this Court in State of Bihar :

“The approach of the Court, while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality. The court should try to sustain its validity to the extent possible. It should strike down enactment only when it is not possible to sustain it. The court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ironed out as a part of attempt to sustain the validity/constitutionality of the enactment. After all, an act by the legislature represents the will of the people and that cannot be lightly interfered with. The unconstitutionality must be plainly and clearly established before an enactment is declared as void.”

67. On the basis of the above, it was submitted that the burden of proof is upon the Respondents herein to prove that the enactment/amendment is unconstitutional. Once the respondents prima facie convince the Court that the enactment is unconstitutional then the burden shifts upon the State to satisfy that the restrictions imposed on the fundamental rights satisfy the test of or reasonableness. The High Court, according to the appellants, failed to apply the aforesaid tests.

68. Finally, it was submitted that in the event this Court is not inclined to uphold the constitutionality of the impugned provisions, it ought to make every effort to give the provision a strained meaning than what appears to be on the face of it. This is based on the principle that it is only when all efforts to do so fail, the court ought to declare a statute to be unconstitutional. The principle has been noticed by this Court in wherein it is observed as follows :

“46. In our opinion, there is one and only one ground for declaring an Act of the legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways But before declaring the statute to be unconstitutional, the court must be absolutely sure that there can be no two views that are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the court must make every effort to uphold the constitutional validity of a statute, even if that requires giving strained construction or narrowing down its scope vide Rt. Rev. Msgr. Mark Netto v State of Kerala [1978] INSC 161; (1979) 1 SCC 23 para 6.

Bihar[28] which is as follows :

“It is well settled that if certain provisions of law, construed in one way, would make them consistent with the Constitution and another interpretation would render them unconstitutional, the court would lean in favour of the former construction.”

70. On the basis of the above, it was submitted that this Court ought to read down the provision in the following manner:

“All dance” found in Section 33A of the Police Act may be read down to mean that “dances which are obscene and derogatory to the dignity of women”. This would ensure that there is no violation of any of the rights of the girls who dance as well as that of the owners of the establishments. Still further, it was submitted that even if the reading of the provisions as mentioned above is not accepted, Section 33A can still be saved by applying the doctrine of severability. It is submitted that the intention of the legislature being to prohibit and ban obscene dance in the interest of society and to uphold the dignity of women, by severing the exempting section, namely, Section 33B and the provision which is contained in Section 33A can be declared to be in accordance with the object of legislature. This would remove the vice of discrimination, as declared by the High Court.

Respondents’ Submissions:

71. In response to the aforesaid elaborate submissions, learned senior counsel appearing for the respondents have also submitted written submissions. Mr. Mukul Rohatgi, learned senior counsel appeared for respondent ‘“ Indian Hotel and Restaurants Association in C.A.No.2705 of 2006, whereas Dr. Rajeev Dhawan, learned senior counsel, appeared on behalf of Bhartiya Bar Girls Union in C.A.No.2705 of 2006. Mr. Anand Grover, learned senior counsel, appeared for respondent Nos. 1 to 6 in W.P.No.2338/2005 and respondent No. 1 and 2 in W.P. No.2587 of 2005.

72. Since the High Court has accepted the submissions made on behalf of the respondents (writ petitioners in the High Court), it shall not be necessary to note the submissions of the learned senior counsel as elaborately as the submissions of the appellants herein. Mr. Mukul Rohatgi submitted that, at the heart of the present case, the controversy revolved around the right to earn a livelihood more so than the right of a person to choose the vocation of their calling. It was submitted that apart from the reasoning given in the judgment of the High Court, the challenge to the impugned legislation can be sustained on other grounds also. He submits that a classification of the establishments into three stars and above, and below is not based on any intelligible differentia and is per se discriminatory and arbitrary. Bar dancers have a right to livelihood under Article 21 and the ban practically takes away their right to livelihood. He therefore, submits that the ban is violative of Articles 14, 19(1)(a) and 19(1)(g) and 21 of the Constitution. Relying on the observations State of T.N.[29], he submits that these articles are the very heart and soul of the Constitution and are entitled to greater protection by the Court than any other right. Mr. Rohatgi submits that the submissions made by the appellants with regard to the protecting the dignity of women and preventing trafficking in women are misconceived. There are adequate measures in the existing provisions, licensing conditions which would safeguard the dignity of women. Relying on Sections 370 and 370A of the IPC, he submits that there are adequate alternate mechanisms for preventing trafficking in women. Elaborating on the submissions that dance is protected by Article 19(1)(a) of the Constitution being a part of fundamental right of speech and expression, he relied upon the observations made by this Court in Sakal Papers reference to some decisions of the High Court recognizing that dancing and cabaret are protected rights under Article 19(1)(a).

He points out that it is always open to a citizen to commercially benefit from the exercise of the fundamental right. Such commercial benefit could be by a bar owner having dance performance or by the dancers themselves using their creative talent to carry on an occupation or profession. The impugned amendment prohibits the bar owners from carrying on any business or trade associated with dancing in these establishments and the bar girls from dancing in those premises. He then submits that the amendment violates Article 19(1)(g), by imposing restrictions by way of total prohibition of dance. Even though the freedom under Article 19(1)(g) of the Constitution is not absolute, any restriction imposed upon the same have to fall within the purview of clause 6 of Article 19. Therefore, the restriction imposed by law must be reasonable and in the interest of general public. It was also submitted that while such restriction may incidentally touch upon other subjects mentioned above, such as morality or decency, the same cannot be imposed only in the interest of morality or decency. Mr. Rohatgi then submitted that the reasons set out in the objects and reasons of the amendment are not supported by any evidence which would demonstrate that there was any threat to public order. There is also no material to show that the members of the Indian Hotel and Restaurants Association were indulging in human trafficking or flesh trade. Therefore, according to Mr. Rohatgi, the ban was not for the protection of any interests of the general public. In fact, Mr. Rohatgi emphasised that the Statement of Objects and Reasons does not refer to trafficking. The compilation of 600 pages given to the respondents by the appellants does not contain a single complaint about trafficking. All allegations relating to trafficking have been introduced only to justify the ban on dancing. He, therefore, submits that the total ban imposed on dancing violates the fundamental right guaranteed under Article 19(1)(g). Learned senior counsel further submitted that dancing is not res extra commercium. He emphasised that if the dancing of similar nature in establishments, mentioned in Section 33B is permissible, the prohibition of similar dance performance in establishments covered under Section 33 cannot be termed as reasonable and or “in the interest of general public”. Therefore, according to Mr. Rohatgi, the restrictions do not fall within the scope of Article 19(6). He Association of India & Ors.[31], wherein a ban on employment of women in establishment where liquor was served, was declared discriminatory and violative of Articles 14, 15, 19 and 21. In this case, it was held as under :

“…..Women would be as vulnerable without State protection as by the loss of freedom because of the impugned Act. The present law ends up victimising its subject in the name of protection. In that regard the interference prescribed by the State for pursuing the ends of protection should be proportionate to the legitimate aims. The standard for judging the proportionality should be a standard capable of being called reasonable in a modern democratic society.

Instead of putting curbs on women’s freedom, empowerment would be a more tenable and socially wise approach. This empowerment should reflect in the law enforcement strategies of the State as well as law modelling done in this behalf.

Also with the advent of modern State, new models of security must be developed. There can be a setting where the cost of security in the establishment can be distributed between the State and the employer.” Jamat (supra), Mr. Rohatgi submitted that the standard for judging reasonability of restriction or restrictions which amounts to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inadequate. The State has failed to even examine the possibility of the alternative steps that could have been taken. He has also relied on the judgments with regard to the violation of Article 14 to which reference has already been made in the earlier part of the judgment. Therefore, it is not necessary to reiterate the same. However, coming back to Section 33B, Mr. Rohatgi submitted that dancing that is banned in the establishments covered under Section 33A is permitted under the exempted establishments under Section 33B. According to learned senior counsel, the differentia in Section 33A and 33B does not satisfy the requirement that it must be intelligible and have a rational nexus sought to be achieved by the statute. He submits that the purported “immorality” gets converted to “virtue” where the dancer who is prohibited from dancing in an establishment covered under Section 33A, dances in an establishment covered under Section 33B. The discrimination, according to Mr. Rohatgi, is accentuated by the fact that for a breach committed by the licensees in the category of Section 33B only their licenses will be cancelled but the licensees of establishments covered under Section 33A would have to close down their business. He further submits that the provision contained in Section 33A is based on the presumption of the State Government that the performance of dance in prohibited establishments having lesser facilities than three star establishments would be derogatory to the dignity of women. The State also presumed that dancing in such establishments is likely to deprave, corrupt or injure public morality. The presumption is without any factual basis. The entry of women in such establishments is not banned. There is also no prohibition for women to take up alternative jobs within such establishments. They can serve liquor and beer to persons but this does not lead to the presumption that it would arouse lust in the male customers. On the other hand, when women start dancing it is presumed that it would arouse lust in the male customers. He emphasised the categorization of establishments under Sections 33A and 33B does not specify the twin criteria: (i) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others; and (ii) the differentia must have a rational nexus or relation to the object sought to be achieved by the legislation. He submits that there is a clear discrimination between the prohibited establishments and the exempted establishments. He points out that the only basis for the differentiation between the exempted and prohibited establishments is the investment and the paying capacity of patrons. Such a differentiation, according to Mr. Rohatgi, is not permissible under the Constitution.

74. The next submission of Mr. Rohatgi is that Article 21 guarantees the right to life which would include the right to secure a livelihood and to make life meaningful. Article 15(1) of the Constitution of India guarantees the fundamental right that prohibits discrimination against any citizen, inter alia, on the ground only of sex. Similarly Article 15(2) lays down that no citizen shall, on grounds only of, inter alia, sex, be subject to any disability, liability, restriction or condition with regard, inter alia, to “access to shops, public restaurants, hotels and places of public entertainment.” The provision in Article 15(3) is meant for protective discrimination or a benign discrimination or an affirmative action in favour of women and its purpose is not to curtail the fundamental rights of women. He relied on the Vijayakumar & Anr.[32] :- “The insertion of clause (3) of Article 15 in relation to women is a recognition of the fact that centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women. An important limb of this concept of gender equality is creating job opportunities for women….” (Emphasis supplied)

75. He submits that the impugned legislation has achieved the opposite result. Instead of creating fresh job opportunities for women it takes away whatever job opportunities are already available to them. He emphasised that the ban also has an adverse social impact. The loss of livelihood of bar dancers has put them in a very precarious situation to earn the livelihood. Mr. Rohatgi submitted that the dancers merely imitate the dance steps and movements of Hindi movie actresses. They wear traditional clothes such as ghagra cholis, sarees and salwar kameez. On the other hand, the actresses in movies wear revealing clothes: shorts, swimming costumes and revealing dresses. Reverting to the reliance placed by the appellants on the Prayas Report and Shubhada Chaukar Report, Mr. Rohatgi submitted that both the reports are of no value, especially in the case of Prayas Report which is based on interviews conducted with only few girls. The SNDT Report actually indicates that there is no organized racket that brings women to the dance bars. The girls’ interview, in fact, indicated that they came to the dance bars through family, community, neighbors and street knowledge. Therefore, according to the Mr. Rohatgi, the allegations with regard to trafficking to the dance bars by middlemen are without any basis. Most of the girls who performed dance are generally illiterate and do not have any formal education. They also do not have any training or skills in dancing. This clearly rendered them virtually unemployable in any other job. He, therefore, submits that the SNDT Report is contradictory to the Prayas Report. Thus, the State had no reliable data on the basis of which the impugned legislation was enacted. Mr. Rohatgi further submitted that there are sufficient provisions in various statutes which empowered the Licensing Authority to frame rules and regulations for licensing/controlling places of public amusement or entertainment. By making a reference to Rules 120 and 123 framed under the Amusement Rules, 1960; he submits that no performers are permitted to commit on the stage or any part of the auditorium any profanity or impropriety of language. These dancers are also not permitted to wear any indecent dress. They are also not permitted to make any indecent movement or gesture whilst dancing. Similar provisions are contained under the Performance License. Although learned senior counsel has listed all the regulatory provisions contained under the Bombay Police Act, it is not necessary to notice the same. The submission based on this regulation is that there is wide amplitude of power available to the appellants for controlling any perceived violation of dignity of women through obscene dances. He submits that the respondents are being made a scapegoat for lethargy and failure of police to implement the provisions of law which are already in place and are valid and subsisting. Failure of the appellants in not implementing the necessary rules and regulations would not justify the impugned legislation. Learned senior counsel has also submitted that the State Government, in its effort to regulate the conduct of dances, had formed a Committee to make suggestions for amendment of the existing Rules.

The Committee had prepared its report and submitted the same to the State Government. However, the State Government did not take any steps for implementation of the recommendation which was supported by the Indian Hotel and Restaurant Association. He submits that the judgment of the High Court does not call for any interference.

76. Dr. Rajeev Dhawan, learned senior counsel, has also highlighted the same issues. He has submitted that the provisions contained in Section 33A(1) prohibit performance of dance of any kind or type.

Since the Section contained the Non Obstante Clause, it is a stand alone provision absolutely independent of the Act and the Rules.

He submits that the provisions are absolutely arbitrary and discriminatory. Under Section 33A(1), there is an absolute provision which is totally prohibiting dance in eating houses, permit rooms or beer bars. On the other hand, Section 33B introduced the discriminatory provision which allows such an activity in establishments where entry is restricted to members only and three starred or above hotels. He also emphasised that the consequence of violation of Section 33A is punishment up to 3 years imprisonment or Rs. 2 lakhs fine or both and with a minimum 3 months and Rs.50,000/- fine unless reasons are recorded. The Section further contemplates that the licence shall stand cancelled. Section 33A(6) makes the offence cognizable and non- bailable. According to Dr. Rajeev Dhawan, the provision is absolute and arbitrary. He reiterates that the non obstante clause virtually makes Section 33A stand alone. Further Section 33A(1) is discretion less. It applied to all the establishments and covers all the activities, including holding of performance of dance of any kind or type in any eating house, permit room or beer bar.

There is total prohibition in the aforesaid establishments. The breach of any condition would entail cancellation of licence.

According to Dr. Dhawan, Section 33A is a draconian code which is discretion less overbroad, arbitrary with mandatory punishment for offences which are cognizable and non-bailable. He then emphasised that the exemption granted to the establishment under Section 33B introduces blatant discrimination. He submits that the classification of two kinds of establishment is unreasonable.

According to Dr. Dhawan, it is clear that Section 33B makes distinction on the grounds of “class of establishments” or “class of persons who frequent the establishment” and not on the form of dance. He reiterates the submission that if dance can be permitted in exempted institutions it cannot be banned in the prohibited establishments. He submitted that treating establishments entitled to a performance licence differently, even though they constitute two distinct classes would be discriminatory as also arbitrary, considering the object of the Act and the same being violative of Article 14 of the Constitution of India. Answering the submission on burden of proof with regard to the reasonableness of the restriction, Dr. Dhawan submits that the burden of showing that the recourse to Article 19(6) is permissible lies upon the State and not on the citizen, he relies State of U.P. & Ors.[33] Ors.[34], he submitted that the total prohibition in Section 33A must satisfy the test of Article 19(6) of the Constitution.

Reliance is placed on a number of judgments to which we have made a reference earlier. Dr. Dhawan further emphasised that the reports relied upon by the State would not give a justification for enacting the impugned legislation. He points out that the study conducted by Shubhada Chaukar for Vasantrao Bhagwat Memorial Fellowship entitled “Problems of Mumbai Bar girls” is based on conversations with 50 girls. According to Dr. Dhawan, this report is thoroughly unreliable. The report itself indicates that there are about one lakh bar girls in Mumbai-Thane Region, therefore, interview of 50 girls would not be sufficient to generate any reliable data. The report also states that there are about 1000- 1200 bars, but it is based on interaction with seven bar owners.

Even then the report does not suggest complete prohibition but suggests a framework which “regulates” the functioning of bars, performances by singers, dancers etc. Similarly, the Prayas Report cannot be relied upon. The study was, in fact, done after the ban was imposed by the State Government. Even this report indicates that after the ban there was urgent need to find alternate source of livelihood for these girls. There was no facility of education for the children. Even this report finds that the families from which these girls come are economically weak. Six percent of minor children comprise the dancing population. They are not provided any specialized training to be bar dancers. They do not live in self owned houses. The SNDT Report clearly states that the study is based on interaction with 500 girls from 50 bars. The report indicates that there are a number of prevalent myths which are without any basis. It is pointed out that, according to the report, the following are the myths :-

1. It is an issue of trafficking from other States and countries.

2. 75% dancers are from Bangladesh.

3. Only 3% are dancers from Maharashtra.

4. Bar culture is against the tradition of Maharashtra.

5. Girls who dance are minors.

6. Bar Dancers hide their faces.

7. Girls don’t work hard.

8. Bar Girls can be rehabilitated in Call Centers.

9. Dancing in Bars is sexual exploitation.

10. Girls are forced into sex work.

11. Dance bars are vulgar and obscene.

12. Ban will solve all these problems.

78. The study, in fact, recommends that the dance bars should not be banned. There should be regularization of working conditions of bar dancers. There should be monitoring and prevention of entry of children into these establishments. There should be protection against forced sexual relations and harassments. There should be security of earning, medical benefits and protection from unfair trade practices. The report recommends that there is a need for development that increases rather than reduces options for women.

The report also indicates that the ban had an adverse impact in that respect. It will lead to women becoming forced sex workers.

The second report of SNDT is based on empirical interviews. It recommends that the ban imposed should be lifted immediately. Dr. Dhawan has further elaborated the shortcomings of the Prayas Report. He has also emphasised that both the SNDT and Prayas Report substantiate the fact that dancers were the sole bread winners in their families earning approximately Rs.5,000/- to Rs.20,000/- per month. They were supporting large families in Mumbai as well as in their native places. After the ban, these families are left without a source of income and have since then been rendered destitute. He also points out that the SNDT study indicates that many dancers came from environments/employments where they had been exploited (maid servants, factory workers, etc.). Most of these women had taken employment as dancers in view of the fact that it afforded them financial independence and security. The SNDT Report points out that not a single bar dancer has ever made any complaint about being trafficked. The reports, according to Dr. Dhawan, clearly indicate that complete prohibition is not the solution and regulation is the answer.

79. Dr. Dhawan then submitted that the conclusions recorded by the High Court on equality and exploitation need to be affirmed by this Court. He has submitted that to determine the reasonableness of the restriction, the High Court has correctly applied the direct and inevitable effect test. He seeks support for the submission, by making a reference to the observations made by this direct operation of the Act upon the rights forms the real test.

The principle has been described as the doctrine of intended and real effect or the direct and inevitable effect, in the case of Maneka Gandhi (supra). Dr. Dhawan also emphasised that dancing is covered by Article 19(1)(a) even though it has been held by the High Court that it is not an expression of dancers but their profession. He relied on the observations of this Court in Bharat wherein it is held that the acting done by an artist is not done for the business. It is an expression of creative talent, which is a part of expression.

80. Illustrations submitted by Dr. Dhawan are that the legislation cannot be saved even by adopting the doctrine of proportionality which requires adoption of the least invasive approach. Dr. Dhawan has reiterated that the suggestions made by the Committee pursuant to the resolution dated 19th December, 2002 ought to be accepted. According to Dr. Dhawan, acceptance of such suggestions would lead to substantial improvement. If the State really seeks to control obscene bar dancing, he submitted that the solution can be based on ensuring that:- bar girls are unionized;

there is adequate protection to the girls and more involvement of the workers in self improvement and self regulation. Dr. Dhawan does not agree with Mr. Gopal Subramanium that this should be treated as a case of trafficking with complicated crisis centric approach.

81. Mr. Anand Grover, learned senior counsel has rebutted the factual submissions made by the appellants. He submits that the State has wrongly mentioned before the court that women who dance in the bar are trafficked or compelled to dance against their will and that the significant number of dancers are minor or under the age of 18 years; that the majority of dancers are from states outside Maharashtra which confirms the allegation of inter-state trafficking; that dancing in bars is a gateway to prostitution;

that bar dancing is associated with crime and breeds criminality;

that the conditions of dance bars are exploitative and dehumanizing for the women. Lastly, that bar dancing contributes to social-ills and illicit affairs between dancers and the male visitors break up of family and domestic violence against wives of men visiting the dance bars. According to Mr. Grover, the aforesaid assertions are founded on incorrect, exaggerated or overstated claims. Learned senior counsel has also indicated that there is great deal of fudging of figures by police with regard to complaints and cases registered under the dance bars to substantiate their contentions. He has relied on the official data on the incidence of trafficking crimes from the National Crime Records Bureau report for the year 2004-2011 to show that there is no nexus between dance bars and trafficking in women. Learned senior counsel has reiterated the submission that Section 33A and Section 33B of the Bombay Police Act violate Article 14 of the Constitution. He has relied on the judgment of this Court in D.S.

reiterated that the classification between the establishment under Section 33A and Section 33B is unreasonable.

82. The High Court, according to the learned senior counsel, has wrongly accepted the explanation given by the appellants in their affidavits that the classification is based on the type of dance performed in the establishments. This, according to learned senior counsel, is contrary to the provisions contained in the aforesaid sections. He reiterated the submissions that the distinction between the establishments is based not on the type of dance performance but on the basis of class of such establishments. He makes a reference to the affidavit in reply filed in Writ Petition No.2450 of 2005 at paragraph 33 inter alia stated as follows :- “Even otherwise five star hotels are class themselves and can’t be compared with popularly known dance bars…the persons visiting these hotels or establishments referred therein above stand on different footing and can’t be compared with the people who attend the establishments which are popularly known as dance bar. They belong to different strata of society and are a class by themselves.”

83. These observations, according to learned counsel, are contrary to the decision of this Court in Sanjeev Coke Manufacturing Company reiterated the submission that classification between Sections 33A and 33B establishments has no rational nexus with the object sought to be achieved by the impugned legislation. He submits that whereas Section 33A prohibits any kind or type of dance performance in eating house, permit room or beer bar, i.e., dance bars, Section 33B allows all types and kinds of dances in establishments covered under Section 33B. Learned senior counsel further submits that the object of the impugned legislation is to protect women from exploitation by prohibiting dances, which were of indecent, obscene and vulgar type, derogatory to the dignity of women and likely to deprave, corrupt or injure the public morality, or morals. This is belied by the fact that all kinds of dances are permitted in the exempted establishments covered under Section 33B. He has also given the example that most of the Hindi film songs or even dancing in discos are much more sexually explicit than the clothes worn by the bar dancers.

84. Learned senior counsel further submitted that exploitation of women is not limited only to dance bar. Such exploitation exists in all forms of employment including factory workers, building site workers, housemaids and even waitresses. In short, he reiterated the submission that the legislation does not advance the objects and reasons stated in the amendment Act. Mr. Grover further submitted that the impugned law violates the principle of proportionality. He has pointed out that gender stereotyping is also palpable in the solution crafted by the legislature. The impugned statute does not affect a man’s freedom to visit bars and consume alcohol, but restricts a woman from choosing the occupation of dancing in the same bars. The legislation, patronizingly, seeks to ‘protect’ women by constraining their liberty, autonomy and self-determination. Mr. Grover has also reiterated the submission that Section 33A is violative of Article 19(1)(a) of the Constitution. According to Mr. Grover, restriction imposed on the freedom of expression is not justified under Article 19(6) of the Constitution. He submits that dancing in eating houses, permit rooms or beer bars is not inherently dangerous to public interest. Therefore, restrictions on the freedom of speech and expression are wholly unwarranted. Mr.

Grover also emphasised that dancing is not inherently dangerous or pernicious and cannot be treated akin to trades that are res extra commercium. Bar dancers, therefore, have a fundamental right to practice and pursue their profession/occupation of dancing in eating houses, beer bars and permit rooms. The social evils projected by the appellants, according to Mr. Grover, are related to serving and drinking of alcohol and not dancing.

Therefore, there was no rational nexus in the law banning all types of dances. He also emphasised that the women can be allowed to work as waitresses to serve liquor and alcoholic drinks. There could be no justification for banning the performance of dance by them. Mr. Grover also submitted that the ban contained in Section 33A violates Article 21 of the Constitution. He submits that the right to livelihood is an integral part of the right to life guaranteed under Article 21 of the Constitution. The deprivation of right to livelihood can be justified if it is according to procedure established by law under Article 21. Such a law has to be fair, just and reasonable both substantively and procedurally.

The impugned law, according to Mr. Grover, does not meet the test of substantive due process. It does not provide any alternative livelihood options to the thousands of bar dancers who have been deprived of their legitimate source of livelihood. In the name of protecting women from exploitation, it has sought to deprive more than 75,000 women and their families from their livelihoods and their only means of subsistence. Mr. Grover has submitted that there is no viable rehabilitation or compensation provision offered to the bar dancers, in order to tide over the loss of income and employment opportunities. According to learned senior counsel, in the last 7 years, the impact of the prohibition has been devastating on the lives of the bar dancers and their families. This has deprived the erstwhile bar dancers of a life with dignity. In the present context, the dignity of bar dancers (of persons) and dignity of dancing (work) has been conflated in a pejorative way. According to Mr. Grover, the bar dancing in establishments covered under Section 33A has been demeaned because the dancers therein hail from socially and economically lower castes and class. It is a class based discrimination which would not satisfy the test of Article 14.

85. Lastly, he has submitted that the plea of trafficking would not be a justification to sustain the impugned legislation. In fact, trafficking is not even mentioned in the Statement of Objects and Reasons, it was mentioned for the first time in the affidavit filed by the State in reply to the writ petition. According to learned senior counsel, the legislation has been rightly declared ultra vires by the High Court.

86. We have considered the submissions made by the learned senior counsel for the parties. We have also perused the pleadings and the material placed before us.

87. The High Court rejected the challenge to the impugned Act on the ground that the State legislature was not competent to enact the amendment. The argument was rejected on the ground that the amendment is substantially covered by Entries 2, 8, 33 and 64 of List II. The High Court further observed that there is no repugnancy between the powers conferred on the Centre and the State under Schedule 7 List II and III of the Constitution of India. The High Court also rejected the submissions that the proviso to Section 33A (2) amounts to interference with the independence of the judiciary on the ground that the legislature is empowered to regulate sentencing by enactment of appropriate legislation. Such exercise of legislative power is not uncommon and would not interfere with the judicial power in conducting trial and rendering the necessary judgment as to whether the guilt has been proved or not. The submission that the affidavit filed by Shri Youraj Laxman Waghmare, dated 1.10.2005, cannot be considered because it was not verified in accordance with law was rejected with the observations that incorrect verification is curable and steps have been taken to cure the same. The submissions made in Writ Petition 2450 of 2005 that the amendment would not apply to eating houses and would, therefore, not be applicable in the establishments of the petitioners therein was also rejected. It was held that the “place of public interest” includes eating houses which serve alcohol for public consumption. It was further observed that the amendment covered even those areas in such eating houses where alcohol was not served. The High Court also rejected the challenge to the amendment that the same is in violation of Article 15(1) of the Constitution of India. It has been observed that dancing was not prohibited in the establishments covered under Section 33B only on the ground of sex. What is being prohibited is dancing in identified establishments. The Act prohibits all types of dance in banned establishments by any person or persons. There being no discrimination on the basis of gender, the Act cannot be said to violate Article 15(1) of the Constitution.

88. The High Court has even rejected the challenge to the impugned amendment on the ground that the ban amounts to an unreasonable restriction, on the fundamental right of the bar owners and bar dancers, of freedom of speech and expression guaranteed under Article 19(1)(a). The submission was rejected by applying the doctrine of pith and substance. It has been held by the High Court that dance performed by the bar dancers can not fall within the term “freedom of speech and expression” as the activities of the dancers are mainly to earn their livelihood by engaging in a trade or occupation. Similarly, the submission that the provision in Section 33A was ultra vires Article 21 of the Constitution of India was rejected, in view of the ratio of this Court, in the Ors.[40] wherein it is observed as follows :- “We do not find any merit in the argument founded on Article 21 of the Constitution. In our opinion, Article 21 is not attracted in a case of trade or business ‘“ either big or small. The right to carry on any trade or business and the concept of life and personal liberty within Article 21 are too remote to be connected together.”

89. Since, no counter appeal has been filed by any of the respondents challenging the aforesaid findings, it would not be appropriate for us to opine on the correctness or otherwise of the aforesaid conclusions.

90. However in order to be fair to learned senior counsel for the respondents, we must notice that in the written submissions it was sought to be argued that in fact the amendments are also unconstitutional under Articles 15(1), 19(1)(a) and 21. Dr. Dhawan has submitted that the High Court has erroneously recorded the finding that the dancing in a bar is not an expression of dancers but their profession, and, therefore, it can not get the protection of Article 19(1)(a). Similarly, he had submitted that the High Court in the impugned judgment has erroneously held that the challenge to the amendment under Article 21 is too remote. The respondents, therefore, would invite this Court to examine the issue of “livelihood” under Article 142 of the Constitution of India being “question of law of general public importance.

According to Dr. Dhawan, the High Court ought to have protected the bar dancers under Articles 19(1)(a) and 21 also. As noticed earlier, Mr. Rohatgi and Mr. Grover had made similar submissions.

We are, however, not inclined to examine the same in these proceedings. No separate appeals have been filed by the respondents specifically raising a challenge to the observations adverse to them made by the High Court. We make it very clear that we have not expressed any opinion on the correctness or otherwise of the conclusions of the High Court with regard to Sections 33A and 33B not being ultra vires Articles 15(1), 19(1)(a) and Article 21. We have been constrained to adopt this approach:

1) Because there was no challenge to the conclusions of the High Court in appeal by respondents.

2) The learned senior counsel of the appellants had no occasion to make submissions in support of the conclusions recorded by the High Court.

3) We are not inclined to exercise our jurisdiction under Article 142, as no manifest injustice has been caused to the respondents. Nor can it be said that the conclusions recorded by the High Court are palpably erroneous so as to warrant interference, without the same having been challenged by the respondents. We, therefore, decline the request of Dr. Rajeev Dhawan.

91. This now brings us to the central issue as to whether the findings recorded by the High Court that the impugned amendment is ultra vires Article 14 and 19(1)(g) suffers from such a jurisdictional error that they cannot be sustained.

Is the impugned legislation ultra vires Article 14?

92. Before we embark upon the exercise to determine as to whether the impugned amendment Act is ultra vires Article 14 and 19(1)(g), it would be apposite to notice the well established principles for testing any legislation before it can be declared as ultra vires.

It is not necessary for us to make a complete survey of the judgments in which the various tests have been formulated and re- affirmed. We may, however, make a reference to the judgment of Constitution Bench of seven Judges of this Court explained the true meaning and scope of Article 14 as follows :- “It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.”

93. The aforesaid principles have been consistently adopted and applied in subsequent cases. In the case of Ram Krishna Dalmia (supra), this Court reiterated the principles which would help in testing the legislation on the touchstone of Article 14 in the following words :

“(a) That a law may be constitutional even though it relates to a single individual if on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself (b) That there is always presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;

(c) That it must he presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;

(d) That the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;

(e) That in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can he conceived existing at the time of the legislation; and (f) That while good faith and knowledge of the existing conditions on the part of the legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may be reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.”

(Italics are ours)

94. These principles were reiterated by this Court in Shashikant Laxman Kale (supra). The relevant observations have already been noticed in the earlier part of the judgment.

95. The High Court has held that the classification under Sections 33A and 33B was rational because the type of dance performed in the establishments allowed them to be separated into two distinct classes. It is further observed that the classification does not need to be scientifically perfect or logically complete.

96. The High Court has, however, concluded that classification by itself is not sufficient to relieve a statute from satisfying the mandate of the equality clause of Article 14. The amendment has been nullified on the second limb of the twin test to be satisfied under Article 14 of the Constitution of India that the amendment has no nexus with the object sought to be achieved. Mr.

Subramanium had emphasised that the impugned enactment is based on consideration of different factors, which would justify the classification. We have earlier noticed the elaborate reasons given by Mr. Subramanium to show that the dance performed in the banned establishments itself takes a form of sexual propositioning. There is revenue sharing generated by the tips received by the dancers. He had also emphasised that in the banned establishment women, who dance are not professional dancers. They are mostly trafficked into dancing. Dancing, according to him, is chosen as a profession of last resort, when the girl is left with no other option. On the other hand, dancers performing in the exempted classes are highly acclaimed and established performer. They are economically independent.

Such performers are not vulnerable and, therefore, there is least likelihood of any indecency, immorality or depravity. He had emphasised that classification to be valid under Article 14 need not necessarily fall within an exact or scientific formula for exclusion or inclusion of persons or things. [See: Welfare Association, A.R.P., Maharashtra (supra)] There are no requirements of mathematical exactness or applying doctrinaire tests for determining the validity as long as it is not palpably arbitrary. (See: Shashikant Laxman Kale & Anr. (supra)).

97. We have no hesitation in accepting the aforesaid proposition for testing the reasonableness of the classification. However, such classification has to be evaluated by taking into account the objects and reasons of the impugned legislation; (See: Ram Krishna Dalmia’s case supra). In the present case, judging the distinction between the two sections upon the aforesaid criteria cannot be justified.

98. Section 33(a)(i) prohibits holding of a performance of dance, of any kind or type, in any eating house, permit room or beer bar.

This is a complete embargo on performance of dances in the establishment covered under Section 33(a)(i). Section 33(a) contains a non-obstante clause which makes the section stand alone and absolutely independent of the act and the rules. Section 33(a)(ii) makes it a criminal offence to hold a dance performance in contravention of sub-section(i). On conviction, offender is liable to punishment for 3 years, although, the Court may impose a lesser punishment of 3 months and fine, after recording special reasons for the same. We are in agreement with the submission of Dr. Dhawan that it is a particularly harsh provision. On the other hand, the establishments covered under Section 33B enjoy complete exemption from any such restrictions. The dance performances are permitted provided the establishments comply with the applicable statutory provisions, Bye-Laws, Rules and Regulations. The classification of the establishments covered under Sections 33A and 33B would not satisfy the test of equality laid down in the case of State of it was observed as under:

“Classification, therefore, must be truly founded on substantial differences which distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved.” held that:

“Legal constitutional policy adumbrated in a statute must answer the test of Article 14 of the Constitution of India.

Classification whether permissible or not must be judged on the touchstone of the object sought to be achieved.”

100. Learned senior counsel for the appellants have sought to justify the distinction between two establishments, first of all as noticed earlier, on the basis of type of dance. It was emphasised that the dance performed in the prohibited establishments, itself takes a form of sexual propositioning. It was submitted that it is not only just the type of dance performed but the surrounding circumstances which have been taken into consideration in making the distinction. The distinction is sought to be made under different heads which we shall consider seriatim. It is emphasised that in the banned establishments, the proximity between the dancing platform and the audience is larger than at the banned establishments. An assumption is sought to be made from this that there would hardly be any access to the dancers in the exempted establishments as opposed to the easy access in the banned or prohibited establishments. Another justification given is that the type of crowd that visits the banned establishments is also different from the crowd that visits the exempted establishments. In our opinion, all the aforesaid reasons are neither supported by any empirical data nor common sense. In fact, they would be within the realm of “myth” based on stereotype images. We agree with the submission made by the learned counsel for the appellant, Mr. Mukul Rohtagi and Dr.

Dhawan that the distinction is made on the grounds of “classes of establishments” or “classes of persons, who frequent the establishment.” and not on the form of dance. We also agree with the submission of the learned senior counsel for the respondents that there is no justification that a dance permitted in exempted institutions under Section 33B, if permitted in the banned establishment, would be derogatory, exploitative or corrupting of public morality. We are of the firm opinion that a distinction, the foundation of which is classes of the establishments and classes/kind of persons, who frequent the establishment and those who own the establishments can not be supported under the constitutional philosophy so clearly stated in the Preamble of the Constitution of India and the individual Articles prohibiting discrimination on the basis of caste, colour, creed, religion or gender. The Preamble of the Constitution of India as also Articles 14 to 21, as rightly observed in the Constitutional Bench Judgment of this Court in I.R. Coelho (supra), form the heart and soul of the Constitution. Taking away of these rights of equality by any legislation would require clear proof of the justification for such abridgment. Once the respondents had given prima facie proof of the arbitrary classification of the establishments under Sections 33A and 33B, it was duty of the State to justify the reasonableness of the classification. This conclusion of ours is fortified by the observations in M/s. Laxmi Khandsari (supra), therein this Court observed as follow:

“14. We, therefore, fully agree with the contention advanced by the petitioners that where there is a clear violation of Article 19(1)(g), the State has to justify by acceptable evidence, inevitable consequences or sufficient materials that the restriction, whether partial or complete, is in public interest and contains the quality of reasonableness. This proposition has not been disputed by the counsel for the respondents, who have, however, submitted that from the circumstances and materials produced by them the onus of proving that the restrictions are in public interest and are reasonable has been amply discharged by them.” 101. In our opinion, the appellants herein have failed to satisfy the aforesaid test laid down by this court. The Counsel for the appellant had, however, sought to highlight before us the unhealthy practice of the customers showering money on the dancers during the performance, in the prohibited establishments. This encourages the girls to indulge in unhealthy competition to create and sustain sexual interest of the most favoured customers. But such kind of behaviour is absent when the dancers are performing in the exempted establishments. It was again emphasised that it is not only the activities performed in the establishments covered under Section 33 A, but also the surrounding circumstances which are calculated to produce an illusion of easy access to women. The customers who would be inebriated would pay little heed to the dignity or lack of consent of the women. This conclusion is sought to be supported by a number of complaints received and as well as case histories of girl children rescued from the dance bars. We are again not satisfied that the conclusions reached by the state are based on any rational criteria. We fail to see how exactly the same dances can be said to be morally acceptable in the exempted establishments and lead to depravity if performed in the prohibited establishments. Rather it is evident that the same dancer can perform the same dance in the high class hotels, clubs, and gymkhanas but is prohibited of doing so in the establishments covered under Section 33A. We see no rationale which would justify the conclusion that a dance that leads to depravity in one place would get converted to an acceptable performance by a mere change of venue. The discriminatory attitude of the state is illustrated by the fact that an infringement of section 33A(1) by an establishment covered under the aforesaid provision would entail the owner being liable to be imprisoned for three years by virtue of section 33A(2). On the other hand, no such punishment is prescribed for establishments covered under Section 33B. Such an establishment would merely lose the licence. Such blatant discrimination cannot possibly be justified on the criteria of reasonable classification under Article 14 of the Constitution of India. Mr. Subramaniam had placed strong reliance on the Kaushailiya & Ors. (supra), wherein it was observed as follows:

“7. The next question is whether the policy so disclosed offends Article 14 of the Constitution. It has been well settled that Article 14 does not prohibit reasonable classification for the purpose of legislation and that a law would not be held to infringe Article 14 of the Constitution if the classification is founded on an intelligible differentia and the said differentia has a rational relation to the object sought to be achieved by the said law. The differences between a woman who is a prostitute and one who is not certainly justify their being placed in different classes. So too, there are obvious differences between a prostitute who is a public nuisance and one who is not. A prostitute who carries on her trade on the sly or in the unfrequented part of the town or in a town with a sparse population may not so dangerous to public health or morals as a prostitute who lives in a busy locality or in an over-crowded town or in a place within the easy reach of public institutions like religious and educational institutions. Though both sell their bodies, the latter is far more dangerous to the public, particularly to the younger generation during the emotional stage of their life. Their freedom of uncontrolled movement in a crowded locality or in the vicinity of public institutions not only helps to demoralise the public morals, but, what is worse, to spread diseases not only affecting the present generation, but also the future ones. Such trade in public may also lead to scandals and unseemly broils. There are, therefore, pronounced and real differences between a woman who is a prostitute and one who is not, and between a prostitute, who does not demand in public interests any restrictions on her movements and a prostitute, whose actions in public places call for the imposition of restrictions on her movements and even deporation. The object of the Act, as has already been noticed, is not only to suppress immoral traffic in women and girls, but also to improve public morals by removing prostitute from busy public places in the vicinity of religious and educational institutions. The differences between these two classes of prostitutes have a rational relation to the object sought to be achieved by the Act.” 102. We fail to see how any of the above observations are of relevance in present context. The so called distinction is based purely on the basis of the class of the performer and the so called superior class of audience. Our judicial conscience would not permit us to presume that the class to which an individual or the audience belongs brings with him as a necessary concomitant a particular kind of morality or decency. We are unable to accept the presumption which runs through Sections 33A and 33B that the enjoyment of same kind of entertainment by the upper classes leads only to mere enjoyment and in the case of poor classes; it would lead to immorality, decadence and depravity. Morality and depravity cannot be pigeon-holed by degrees depending upon the classes of the audience. The aforesaid presumption is also perplexing on the ground that in the banned establishments even a non-obscene dance would be treated as vulgar. On the other hand, it would be presumed that in the exempted establishments any dance is non-obscene. The underlying presumption at once puts the prohibited establishments in a precarious position, in comparison to the exempted class for the grant of a licence to hold a dance performance. Yet at the same time, both kinds of establishments are to be granted licenses and regulated by the same restrictions, regulations and standing provisions.

103. We, therefore, decline to accept the submission of Mr. Subramaniam that the same kind of dances performed in the exempted establishments would not bring about sexual arousal in male audience as opposed to the male audience frequenting the banned establishments meant for the lower classes having lesser income at their disposal. In our opinion, the presumption is elitist, which cannot be countenanced under the egalitarian philosophy of our Constitution. Our Constitution makers have taken pains to ensure that equality of treatment in all spheres is given to all citizens of this country irrespective of their station in (supra), Ram Krishna Dalmia’s case (supra) and State of Uttar 33A and 33B introduce an invidious discrimination which cannot be justified under Article 14 of the Constitution.

104. The High Court, in our opinion, has rightly declined to rely upon the Prayas and Shubhada Chaukar’s report. The number of respondents interviewed was so miniscule as to render both the studies meaningless. As noticed earlier, the subsequent report submitted by SNDT University has substantially contradicted the conclusions reached by the other two reports. The situation herein was not similar to the circumstances which led to the decision in the case of Radice (supra). In that case, a New York Statute was challenged as it prohibited employment of women in restaurants in cities of first and second class between hours of 10 p.m. and 6 a.m., on the ground of (1) due process clause, by depriving the employer and employee of their liberty to contract, and (2) the equal protection clause by an unreasonable and arbitrary classification. The Court upheld the legislation on the first ground that the State had come to the conclusion that night work prohibited, so injuriously threatens to impair women’s peculiar and natural functions. Such work, according to the State, exposes women to the dangers and menaces incidental to night life in large cities. Therefore, it was permissible to enable the police to preserve and promote the public health and welfare. The aforesaid conclusion was, however, based on one very important factor which was that “the legislature had before it a mass of information from which it concluded that night work is substantially and especially detrimental to the health of women.” In our opinion, as pointed out by the learned counsel for the respondents, in the present case, there was little or no material on the basis of which the State could have concluded that dancing in the prohibited establishments was likely to deprave, corrupt or injure the public morality or morals.

105. The next justification for the so called intelligible differentia is on the ground that women who perform in the banned establishment are a vulnerable lot. They come from grossly deprived backgrounds. According to the appellants, most of them are trafficked into bar dancing. We are unable to accept the aforesaid submission. A perusal of the Objects and the Reasons would show that the impugned legislation proceed on a hypothesis that different dance bars are being used as meeting points of criminals and pick up points of the girls. But the Objects and Reasons say nothing about any evidence having been presented to the Government that these dance bars are actively involved in trafficking of women. In fact, this plea with regard to trafficking of women was projected for the first time in the affidavit filed before the High Court. The aforesaid plea seems to have been raised only on the basis of the reports which were submitted after the ban was imposed. We have earlier noticed the extracts from the various reports. In our opinion, such isolated examples would not be sufficient to establish the connection of the dance bars covered under section 33A with trafficking. We, therefore, reject the submission of the appellants that the ban has been placed for the protection of the vulnerable women.

106. The next justification given by the learned counsel for the appellants is on the basis of degree of harm which is being caused to the atmosphere in the banned establishments and the surrounding areas. Undoubtedly as held by this Court in the Ram Krishna Dalmia’s case (supra), the Legislature is free to recognize the degrees of harm and may confine its restrictions to those cases where the need is deemed to be clearest. We also agree with the observations of the U.S. Court in Joseph Patsone’s case (supra) that the state may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, but such conclusion have to be reached either on the basis of general consensus shared by the majority of the population or on the basis of empirical data. In our opinion, the State neither had the empirical data to conclude that dancing in the prohibited establishment necessarily leads to depravity and corruption of public morals nor was there general consensus that such was the situation. The three reports presented before the High Court in fact have presented divergent view points. Thus, the observations made in the case of Joseph Patsone (supra) are not of any help to the appellant. We are also conscious of the observations made by this court in case of Mohd.

Hanif Quareshi (supra), wherein it was held that there is a presumption that the legislature understands and appreciates the needs of its people and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. In the present case, the appellant has failed to give any details of any experience which would justify such blatant discrimination, based purely on the class or location of an establishment.

107. We are of the opinion that the State has failed to justify the classification between the exempted establishments and prohibited establishments on the basis of surrounding circumstances; or vulnerability. Undoubtedly, the legislature is the best judge to measure the degree of harm and make reasonable classification but when such a classification is challenged the State is duty bound to disclose the reasons for the ostensible conclusions. In our opinion, in the present case, the legislation is based on an unacceptable presumption that the so called elite i.e. rich and the famous would have higher standards of decency, morality or strength of character than their counter parts who have to content themselves with lesser facilities of inferior quality in the dance bars. Such a presumption is abhorrent to the resolve in the Preamble of the Constitution to secure the citizens of India.

“Equality of status and opportunity and dignity of the individual”. The State Government presumed that the performance of an identical dance item in the establishments having facilities less than 3 stars would be derogative to the dignity of women and would be likely to deprave, corrupt or injure public morality or morals; but would not be so in the exempted establishments. These are misconceived motions of a bygone era which ought not to be resurrected.

108. Incongruously, the State does not find it to be indecent, immoral or derogatory to the dignity of women if they take up other positions in the same establishments such as receptionist, waitress or bar tender. The women that serve liquor and beer to customers do not arouse lust in customers but women dancing would arouse lust. In our opinion, if certain kind of dance is sensuous in nature and if it causes sexual arousal in men it cannot be said to be more in the prohibited establishments and less in the exempted establishments. Sexual arousal and lust in men and women and degree thereof, cannot be said to be monopolized by the upper or the lower classes. Nor can it be presumed that sexual arousal would generate different character of behaviour, depending on the social strata of the audience. History is replete with examples of crimes of lust committed in the highest echelons of the society as well as in the lowest levels of society. The High Court has rightly observed, relying on the observations of this Court in hotels is a licence given to a person from higher echelon”. In our opinion, the activities which are obscene or which are likely to deprave and corrupt those whose minds are open to such immoral influences, cannot be distinguished on the basis as to whether they are performing in 5 star hotels or in dance bars. The judicial conscience of this Court would not give credence to a notion that high morals and decent behaviour is the exclusive domain of the upper classes; whereas vulgarity and depravity is limited to the lower classes. Any classification made on the basis of such invidious presumption is liable to be struck down being wholly unconstitutional and particularly contrary to Article 14 of the Constitution of India.

Is the impugned legislation ultra vires Article 19(1)(g) ‘“ 109. It was submitted by the learned counsel for the appellants that by prohibiting dancing under Section 33A, no right of the bar owners for carrying on a business/profession is being infringed [See: Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. (supra)]. The curbs are imposed by Section 33A and 33B only to restrict the owners in the prohibited establishments from permitting dance to be conducted in the interest of general public. Since the dances conducted in establishments covered under Section 33A were obscene, they would fall in the category of res extra commercium and would not be protected by the fundamental right under Article 19(1)(g). The submission is also sought to be supported by placing a reliance on the reports of Prayas and Subhada Chaukar. The restriction is also placed to curb exploitation of the vulnerability of the young girls who come from poverty stricken background and are prone to trafficking. In support of the submission, the learned counsel relied on a number of judgments of this Court as well as the American Courts, including Municipal Corporation of the City of Ahmedabad (supra), wherein it was held that the expression “in the interest of general public” under Article 19(6) inter alia includes protecting morality. The relationship between law and morality has been the subject of jurisprudential discourse for centuries. The questions such as: Is the development of law influenced by morals? Does morality always define the justness of the law? Can law be questioned on grounds of morality? and above all, Can morality be enforced through law?, have been subject matter of many jurisprudential studies for over at least a century and half. But no reference has been made to any such studies by any of the learned senior counsel. Therefore, we shall not dwell on the same.

110. Upon analyzing the entire fact situation, the High Court has held that dancing would be a fundamental right and cannot be excluded by dubbing the same as res extra commercium. The State has failed to establish that the restriction is reasonable or that it is in the interest of general public. The High Court rightly scrutinized the impugned legislation in the light of observations of this Court made in Narendra Kumar (supra), wherein it was held that greater the restriction, the more the need for scrutiny. The High Court noticed that in the guise of regulation, the legislation has imposed a total ban on dancing in the establishments covered under Section 33A. The High Court has also concluded that the legislation has failed to satisfy the doctrine of direct and inevitable effect [See: Maneka Gandhi’s case (supra)]. We see no reason to differ with the conclusions recorded by the High Court.

We agree with Mr. Rohatgi and Dr. Dhawan that there are already sufficient rules and regulations and legislation in place which, if efficiently applied, would control if not eradicate all the dangers to the society enumerated in the Preamble and Objects and Reasons of the impugned legislation.

111. The activities of the eating houses, permit rooms and beer bars are controlled by the following regulations:

A. Bombay Municipal Corporation Act.

B. Bombay Police Act, 1951.

C. Bombay Prohibition Act, 1949.

D. Rules for Licensing and Controlling Places of Public Entertainment, 1953.

E. Rules for Licensing and controlling Places of Public Amusement other that Cinemas.

F. And other orders are passed by the Government from time to time.

112. The Restaurants/Dance Bar owners also have to obtain licenses/permissions as listed below:

i. Licence and Registration for eating house under the Bombay Police Act, 1951.

ii. License under the Bombay Shops and Establishment Act, 1948 and the Rules thereunder.

iii. Eating House license under Sections 394, 412A, 313 of the Bombay Municipal Corporation Act, 1888.

iv. Health License under the Maharashtra Prevention of Food Adulteration Rules, 1962.

v. Health License under the Mumbai Municipal Corporation Act, 1888 for serving liquor;

vi. Performance License under Rules 118 of the Amusement Rules, 1960 ;

vii. Premises license under Rules 109 of the amusement Rules;

viii. License to keep a place of Public Entertainment under Section 33(1), clause (w) and (y) of the Bombay Police Act, 1951 and the said Entertainment Rules;

ix. FL III License under the Bombay Prohibition Act, 1949 and the Rules 45 of the Bombay Foreign Liquor Rules, 1953 or a Form “E” license under the Special Permits & Licenses Rules for selling or serving IMFL & Beer.

x. Suitability certificate under the Amusement Rules.

113. Before any of the licenses are granted, the applicant has to fulfil the following conditions :

(i) Any application for premises license shall accompanied by the site-plan indicating inter-alia the distance of the site from any religious, educational institution or hospital.

(ii) The distance between the proposed place of amusement and the religious place or hospital or educational institution shall be more than 75 metres.

(iii) The proposed place of amusement shall not have been located in the congested and thickly populated area.

(iv) The proposed site must be located on a road having width of more than 10 metres.

(v) The owners/partners of the proposed place of amusement must not have been arrested or detained for anti-social or any such activities or convicted for any such offenses.

(vi) The distance between two machines which are to be installed in the video parlour shall be reflected in the plan.

(vii) No similar place of public amusement exists within a radius of 75 metres.

(b) The conditions mentioned in the license shall be observed throughout the period for which the license is granted and if there is a breach of any one of the conditions, the license is likely to be cancelled after following the usual procedure.

114. The aforesaid list, enactments and regulations are further supplemented with regulations protecting the dignity of women. The provisions of Bombay Police Act, 1951 and more particularly Section 33(1)(w) of the said Act empowers the Licensing Authority to frame Rules ‘”licensing or controlling places of public amusement or entertainment and also for taking necessary steps to prevent inconvenience to residents or passers-by or for maintaining public safety and for taking necessary steps in the interests of public order, decency and morality.” 115. Rules 122 and 123 of the Amusement Rules, 1960 also prescribe conditions for holding performances.

“Rule 122 “ Acts prohibited by the holder of a Performance Licence : No person holding a performance Licence under these Rules shall, in the beginning, during any interval or at the end of any performance, or during the course of any performance, exhibition, production, display or staging, permit or himself commit on the stage or any part of the auditorium :- (a) any profanity or impropriety of language ;

(b) any indecency of dress, dance, movement or gesture;

Similar conditions and restrictions are also prescribed under the Performance Licence :

“The Licensee shall not, at any time before, during the course of or subsequent to any performance, exhibition, production, display or staging, permit or himself commit on the stage or in any part of the auditorium or outside it :

(i) any exhibition or advertisement whether by way of posters or in the newspapers, photographs of nude or scantily dressed women;

(ii) any performance at a place other than the place provided for the purpose;

(iii) any mixing of the cabaret performers with the audience or any physical contact by touch or otherwise with any member of the audience;

(iv) any act specifically prohibited by the rules.” 116. The Rules under the Bombay Police Act, 1951 have been framed in the interest of public safety and social welfare and to safeguard the dignity of women as well as prevent exploitation of women.

There is no material placed on record by the State to show that it was not possible to deal with the situation within the framework of the existing laws except for the unfounded conclusions recorded in the Preamble as well the Objects and Reasons. [See: State of it is held that the standard of judging reasonability of restriction or restrictions amounting to prohibition remains the same, except that a total prohibition must also satisfy the test that a lesser alternative would be inadequate]. The Regulations framed under Section 33(w) of the Bombay Police Act, more so Regulations 238 and 242 provide that the licensing authority may suspend or cancel a licence for any breach of the license conditions. Regulation 241 empowers the licensing authority or any authorised Police Officer, not below the rank of Sub Inspector, to direct the stoppage of any performance forthwith if the performance is found to be objectionable. Section 162 of the Bombay Police Act empowers a Competent Authority/Police Commissioner/District Magistrate to suspend or revoke a license for breach of its conditions. Thus, sufficient power is vested with the Licensing Authority to safeguard any perceived violation of the dignity of women through obscene dances.

117. From the objects of the impugned legislation and amendment itself, it is crystal clear that the legislation was brought about on the admission of the police that it is unable to effectively control the situation in spite of the existence of all the necessary legislation, rules and regulations. One of the submissions made on behalf of the appellants was to the effect that it is possible to control the performances which are conducted in the establishments fall within Section 33B; the reasons advanced for the aforesaid only highlight the stereotype myths that people in upper strata of society behave in orderly and moralistic manner.

There is no independent empirical material to show that propensity of immorality or depravity would be any less in these high class establishments. On the other hand, it is the specific submission of the appellants that the activities conducted within the establishments covered under Section 33A have the effect of vitiating the atmosphere not only within the establishments but also in the surrounding locality. According to the learned counsel for the appellants, during dance in the bars dancers wore deliberately provocative dresses. The dance becomes even more provocative and sensual when such behaviour is mixed with alcohol.

It has the tendency to lead to undesirable results. Reliance was (supra) to substantiate the aforesaid submissions. Therefore, looking at the degree of harm caused by such behaviour, the State enacted the impugned legislation.

118. We are undoubtedly bound by the principles enunciated by this Court in the aforesaid cases, but these are not applicable to the facts and circumstances of the present case. In Khoday Distilleries Ltd. (supra), it was held that there is no fundamental right inter alia to do trafficking in women or in slaves or to carry on business of exhibiting and publishing pornographic or obscene films and literature. This case is distinguishable because the unfounded presumption that women are being/were trafficked in the bars. The case of State of Punjab & liquor trade, whereas the present case is clearly different. The reliance on New York State Liquor Authority (supra) is completely unfounded because in that case endeavour of the State was directed towards prohibiting topless dancing in an establishment licensed indecent performances in a disorderly house. Hence, this case will also not help the appellants. Therefore, we are not impressed with any of these submissions. All the activities mentioned above can be controlled under the existing regulations.

119. We do not agree with the submission of Mr. Subramanium that the impugned enactment is a form of additional regulation, as it was felt that the existing system of licence and permits were insufficient to deal with problem of ever increasing dance bars. We also do not agree with the submissions that whereas exempted establishments are held to standards higher than those prescribed; the eating houses, permit rooms and dance bars operate beyond/below the control of the regulations. Another justification given is that though it may be possible to regulate these permit rooms and dance bars which are located within Mumbai, it would not be possible to regulate such establishments in the semi-urban and rural parts of the Maharashtra. If that is so, it is a sad reflection on the efficiency of the Licensing/Regulatory Authorities in implementing the legislation.

120. The end result of the prohibition of any form of dancing in the establishments covered under Section 33A leads to the only conclusion that these establishments have to shut down. This is evident from the fact that since 2005, most if not all the dance bar establishments have literally closed down. This has led to the unemployment of over 75,000 women workers. It has been brought on the record that many of them have been compelled to take up prostitution out of necessity for maintenance of their families.

In our opinion, the impugned legislation has proved to be totally counter productive and cannot be sustained being ultra vires Article 19(1)(g).

121. We are also not able to agree with the submission of Mr. Subramanium that the impugned legislation can still be protected by reading down the provision. Undoubtedly, this Court in the case (supra) upon taking notice of the previous precedents has held that the legislature must be given freedom to do experimentations in exercising its powers, provided it does not clearly and flagrantly violate its constitutional limits, these observations are of no avail to the appellants in view of the opinion expressed by us earlier. It is not possible to read down the expression “any kind or type” of dance by any person to mean dances which are obscene and derogatory to the dignity of women. Such reading down cannot be permitted so long as any kind of dance is permitted in establishments covered under Section 33B.

122. We are also unable to accept the submission of Mr. Subramanium that the provisions contained in Section 33A can be declared constitutional by applying the doctrine of severability.

Even if Section 33B is declared unconstitutional, it would still retain the provision contained in Section 33A which prohibits any kind of dance by any person in the establishments covered under Section 33A.

123. In our opinion, it would be more appropriate that the State Government re-examines the recommendations made by the Committee which had been constituted by the State Government comprising of a Chairman of AHAR, Public and Police Officials and chaired by the Principal Secretary (E.I.), Home Department. The Committee had prepared a report and submitted the same to the State Government.

The State Government had in fact sent a communication dated 16th July, 2004 to all District Judicial Magistrates and Police Commissioner to amend the rules for exercising control on Hotel Establishments presenting dance programmes. The suggestions made for the amendment of the Regulations were as follows :

(1) Bar girls dancing in dance bars should not wear clothes which expose the body and also there should be restriction on such dancers wearing tight and provocative clothes.

(2) There should be a railing of 3 ft. height adjacent to the dance stage. There should be distance of 5 ft. between the railing and seats for the customers. In respect of dance bars who have secured licences earlier, provisions mentioned above be made binding. It should be made binding on dance bars seeking new licences to have railing of 3 ft. height adjacent to the stage and leaving a distance of 5 ft. between the railing and sitting arrangement for customers.

(3) Area of dance floor should be minimum 10 x 12 ft. i.e.

120 sq. ft. and the area to be provided for such dancer should be minimum of 15 sq. ft. so that more than 8 dancers cannot dance simultaneously on the stage having area of 12- sq. ft.

(4) If the dancers are to be awarded, there should be a ban on going near them or on showering money on them. Instead it should be made binding to collect the said money in the name of manager of the concerned dancer or to hand over to the manager.

(5) Apart from the above, a register should be maintained in the dance bar to take entries of names of the girls dancing in the bar every day. Similarly, holders of the establishment should gather information such a name, address, photograph and citizenship and other necessary information of the dance girls. Holder of the establishment should be made responsible to verify the information furnished by the dance girls. Also above conditions should be incorporated in the licences being granted.

124. Despite the directions made by the State Government, the authorities have not taken steps to implement the recommendations which have been submitted by AHAR. On the contrary, the impugned legislation was enacted in 2005. In our opinion, it would be more appropriate to bring about measures which should ensure the safety and improve the working conditions of the persons working as bar girls. In similar circumstances, this Court in the case of Anuj Garg (supra) had made certain observations indicating that instead of putting curbs on women’s freedom, empowerment would be more tenable and socially wise approach. This empowerment should reflect in the law enforcement strategies of the State as well as law modeling done in this behalf. In our opinion, in the present case, the restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as there could be several lesser alternatives available which would have been adequate to ensure safety of women than to completely prohibit dance. In fact, a large number of imaginative alternative steps could be taken instead of completely prohibiting dancing, if the real concern of the State is the safety of women.

125. Keeping in view the aforesaid circumstances, we are not inclined to interfere with the conclusions reached by the High Court.

Therefore, we find no merit in these appeals and the same are accordingly dismissed.

126. All interim orders are hereby vacated.

………………..CJI.
[Altamas Kabir]
…………………..J.
[Surinder Singh Nijjar]

New Delhi;
July 16, 2013.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2705 OF 2006
State of Maharashtra & Anr. … Appellants
Vs.
Indian Hotel & Restaurants Assn. & Ors. …Respondents
WITH
Civil Appeal No. 2704 of 2006
and
Civil Appeal No.5504 of 2013
[Arising out of S.L.P. (C) No. 14534 of 2006]

J U D G M E N T

ALTAMAS KABIR, CJI.

1. Having had an opportunity of going through the masterly exposition of the law in the crucible of facts relating to the violation of the provisions of Articles 19(1)(a), 19(1)(g) and 21 of the Constitution read with the relevant provisions of the Bombay Police Act, 1951, I wish to pen down some of my thoughts vis-a-vis the problem arising in all these matters requiring the balancing of equities under Articles 19(1)(g) and 21 of the Constitution.

2. The expression “the cure is worse than the disease” comes to mind immediately.

3. As will appear from the judgment of my learned Brother, Justice Nijjar, the discontinuance of bar dancing in establishments below the rank of three star establishments, has led to the closure of a large number of establishments, which has resulted in loss of employment for about seventy- five thousand women employed in the dance bars in various capacities. In fact, as has also been commented upon by my learned Brother, many of these unfortunate people were forced into prostitution merely to survive, as they had no other means of survival.

4. Of course, the right to practise a trade or profession and the right to life guaranteed under Article 21 are, by their very nature, intermingled with each other, but in a situation like the present one, such right cannot be equated with unrestricted freedom like a run-away horse. As has been indicated by my learned Brother, at the very end of his judgment, it would be better to treat the cause than to blame the effect and to completely discontinue the livelihood of a large section of women, eking out an existence by dancing in bars, who will be left to the mercy of other forms of exploitation. The compulsion of physical needs has to be taken care of while making any laws on the subject. Even a bar dancer has to satisfy her hunger, provide expenses for her family and meet day to day expenses in travelling from her residence to her place of work, which is sometimes even as far as 20 to 25 kms. away. Although, it has been argued on behalf of the State and its authorities that the bar dancers have taken to the profession not as an extreme measure, but as a profession of choice, more often than not, it is a Hobson’s choice between starving and in resorting to bar dancing. From the materials placed before us and the statistics shown, it is apparent that many of the bar dancers have no other option as they have no other skills, with which they could earn a living. Though some of the women engaged in bar dancing may be doing so as a matter of choice, not very many women would willingly resort to bar dancing as a profession.

5. Women worldwide are becoming more and more assertive of their rights and want to be free to make their own choices, which is not an entirely uncommon or unreasonable approach. But it is necessary to work towards a change in mindset of people in general not only by way of laws and other forms of regulations, but also by way of providing suitable amenities for those who want to get out of this trap and to either improve their existing conditions or to begin a new life altogether. Whichever way one looks at it, the matter requires the serious attention of the State and its authorities, if the dignity of women, as a whole, and respect for them, is to be restored. In that context, the directions given by my learned Brother, Justice Nijjar, assume importance.

6. I fully endorse the suggestions made in paragraph 123 of the judgment prepared by my learned Brother that, instead of generating unemployment, it may be wiser for the State to look into ways and means in which reasonable restrictions may be imposed on bar dancing, but without completely prohibiting or stopping the same.

7. It is all very well to enact laws without making them effective. The State has to provide alternative means of support and shelter to persons engaged in such trades or professions, some of whom are trafficked from different parts of the country and have nowhere to go or earn a living after coming out of their unfortunate circumstances. A strong and effective support system may provide a solution to the problem.

8. These words are in addition to and not in derogation of the judgment delivered by my learned Brother.

……………….CJI.
(ALTAMAS KABIR)

New Delhi
July 16, 2013.

FOOTNOTE

[1] [1990] INSC 210; (1990) 4 SCC 366
[2] (2003) 9 SCC 358
[3] [1963] INSC 196; AIR 1964 SC 416
[4] [1958] INSC 30; AIR 1958 SC 538
[5] [1914] USSC 37; 232 U.S. 138 (1914)
[6] 234 U.S.224 (1913)
[7] [1924] USSC 60; 264 U.S. 292 (1924)
[8] [1958] INSC 46; AIR 1958 SC 731
[9] [1982] INSC 81; (1983) 1 SCC 51
[10] [1973] USSC 191; 413 U.S. 49 [1973]
[11] [1953] INSC 46; 1954 SCR 30
[12] AIR 2006 SC 212
[13] [1986] INSC 85; (1986) 3 SCC 20
[14] [1953] 4 SCR 290
[15] [1957] INSC 33; AIR 1957 SC 699
[16] [1996] INSC 733; (1995) 1 SCC 574
[17] (2004) 11 SCC 26
[18] [1981] USSC 159; 452 U.S. 714 (1981)
[19] 1961 3 W.L.R. 611
[20] [1980] INSC 220; AIR 1981 SC 344
[21] [1952] INSC 19; AIR 1952 SC 196
[22] (2003) 7 SCC 309
[23] (1998) 8 SCC 227
[24] (1995) 6 SCC 289
[25] [1950] INSC 38; AIR 1951 SC 41
[26] (1997) 2 SCC 453
[27] (2008) 4 SCC 720
[28] [1962] INSC 16; AIR 1962 SC 955
[29] (2007) 2 SCC 1
[30] [1961] INSC 281; (1962) 3 SCR 842
[31] (2008) 3 SCC 1
[32] [1996] INSC 582; (1995) 4 SCC 520
[33] [1981] INSC 57; (1981) 2 SCC 600
[34] [1959] INSC 147; (1960) 2 SCR 375
[35] [1970] INSC 18; (1970) 1 SCC 248
[36] (1978) 1 SCC 248
[37] (2001) 7 SCC 630
[38] [1982] INSC 103; (1983) 1 SCC 305
[39] [1982] INSC 93; (1983) 1 SCC 147
[40] (1989) 4 SCC 155
[41] [1954] INSC 114; AIR 1955 SC 191
[42] [1973] INSC 180; (1974) 1 SCC 19
[43] (2005) 1 SCC 394
[44] (1997) 8 SCC 114

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