“Orphanage or Places for Child Abuse”. – orphanages in Mahabalipuram in Tamil Nadu, run by NGOs as well as government institutions were reportedly involved in systematic sexual abuse of children. A sting operation indicated that sexual services of children were being provided to foreigners as well as Indian tourists and that the rates of children whose sexual services were being taken were fixed over telephone or in a meeting at the orphanage. = children in need of care and protection we leave these issues open for consideration and grant liberty to the learned Amicus to move an appropriate application in this regard including any application for modification or clarification of the directions given above. The Union of India is directed to communicate our directions to the concerned Ministry or Department of each State and Union Territory for implementation and to collate necessary information regarding the implementation of these directions with the assistance of the National Commission for the Protection of Child Rights and the State Commission for the Protection of Child Rights. A status report in this regard should be filed in this Court on or before 15thJanuary, 2018. The Registry will list this case immediately thereafter.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 102 OF 2007
Re: Exploitation of Children in Orphanages
in the State of Tamil Nadu
….Petitioner

versus

Union of India & Ors.
….Respondents

J U D G M E N T

Madan B. Lokur, J.

1. This writ petition was taken up on the basis of an article published
in the Hindi newspaper “Hindustan” (Lucknow Edition) on 4thJuly, 2007. The
article was written by Ms. Anjali Sinha and the translated caption of the
article is “Orphanage or Places for Child Abuse”. The article was
forwarded to this Court by one A.S. Choudhury along with a letter and that
is the genesis of this petition which was registered as a Public Interest
Litigation (PIL) on 10th September, 2007. Ms. Aparna Bhat was appointed as
Amicus Curiae to assist this Court. At the outset we must and do
acknowledge the unstinting and excellent efforts put in by Ms. Aparna Bhat
over the last 10 years in rendering assistance in this matter.

2. Broadly, the article written by Ms. Anjali Sinha mentions that
orphanages in Mahabalipuram in Tamil Nadu, run by NGOs as well as
government institutions were reportedly involved in systematic sexual
abuse of children. A sting operation indicated that sexual services of
children were being provided to foreigners as well as Indian tourists and
that the rates of children whose sexual services were being taken were
fixed over telephone or in a meeting at the orphanage.

3. It is further stated that in a program organized by the State
Commission for Women in Tamil Nadu, representatives of the National
Commission for Women participated and it was acknowledged that government
schools have become unsafe for girl students due to sexual abuse. The
incident of an eight year old girl who was harassed by her Principal was
mentioned and it was noted that the Principal was only transferred out by
way of punishment. Another incident was mentioned where the school teacher
misbehaved with students in the presence of other students in a closed
room.

4. The then Ministry of Family and Child Welfare along with UNICEF
brought out a report on the condition of children in which it was reported
that 53% of children suffered from sexual abuse. Children were reported to
be the subject of institutional abuse as well as by relatives.

5. On these broad facts Ms. Anjali Sinha suggested that the problem of
sexual abuse of children especially in government institutions has become a
serious problem and requires immediate redressal. She made some
suggestions including a Counseling Cell in each school where children are
taught how to recognize abuse and providing a complaint mechanism
accessible to children in case of any such incident.

Proceedings in this Court

6. Over the years, this Court passed several orders and also mentioned
that certain other issues such as trafficking of children, schools being
occupied by Central Para Military Forces and the right to education
guaranteed to children require consideration. In other words, this Court
sought to expand the scope of this PIL to include the rights of children in
general.
7. In an order passed on 7th February, 2013 the learned Additional
Solicitor General and the learned Amicus submitted that the main reason for
this Court issuing various orders is to ensure that the provisions for the
rights of children as well as provisions for proper facilities to children
in education as also health are implemented. It was submitted that
obviously the rights of children can be adequately secured only if the
monitoring and controlling provisions contained in statutes relating to
children such as The Commissions for Protection of Child Rights Act, 2005,
The Right of Children to Free and Compulsory Education Act, 2009, The
Protection of Children from Sexual Offences Act, 2012 and The Juvenile
Justice (Care and Protection of Children) Act, 2000 are fully implemented.
8. A detailed order was passed by this Court on 16th December, 2013
lamenting that despite the directions issued, little or no progress was
made by the States in protecting the rights of children. As far as the
Commissions for the Protection of Child Rights are concerned, they exist
only on paper since in some cases the Chairperson had not been appointed or
the Members had not been appointed or no rules and regulations had been
framed. This Court observed that the lackadaisical manner in which the
States and the Union Territories had responded to the rights of children
made it necessary to draw attention to the constitutional rights guaranteed
to children. It was observed that the inaction of the States was in the
teeth of the directions given by this Court and additionally the States and
Union Territories ought to realize that they have to operate in accordance
with the provisions of the Constitution of India.

9. Accordingly, specific information was sought from each State and
Union Territory regarding efforts made by the respective governments.
Affidavits were filed by the States and Union Territories from time to time
as an attempt to respond to the questions raised by this Court regarding
action taken by the concerned governments in protecting the rights of
children as well as implementation of the statutes mentioned above. The
responses were disheartening then and the situation has not changed
substantially even after almost a decade since this Court took cognizance
of the matter. Progress, if any, has been marginal. Unfortunately, it
appears that the governments of some of the States and Union Territories
have little remedial or pro-active concern for children.

10. On 20thMarch, 2015 this Court raised the need for a social audit in
terms of Rule 64 of the Juvenile Justice (Care and Protection of Children)
Rules, 2007 and the utilization of funds given to the States and Union
Territories under the Integrated Child Protection Scheme.

11. On 17thApril, 2015 this Court raised the issue of a concurrent
monitoring audit under the Integrated Child Protection Scheme as well as
the establishment of Juvenile Justice Boards, Child Welfare Committees,
Special Juvenile Police Units, functioning of Child Care Institutions and
functioning of adoption agencies.

12. On 31stJuly, 2015 at the instance of the learned Amicus, the issue of
formulating Child Care Plans was discussed in addition to laying down a
policy for conducting social audits. On 28th August, 2015, the issue of
vacancies in the National Commission for the Protection of Child Rights was
raised by this Court. On 30thOctober, 2015 the format for social audits
was discussed, in the context of finalizing something workable and
pragmatic.

13. Since it appeared that there was a lack of seriousness and more
tragically a lack of empathy towards the well being and welfare of children
amongst some of the States and Union Territories and complete apathy with
respect to the disturbingly increasing instances of child sexual abuse,
often by someone in a position of authority and ineffective implementation
of the laws passed by Parliament virtually making parliamentary legislation
irrelevant, we heard detailed submissions of all the parties with the
intention of passing appropriate directions so as to ensure the meaningful
implementation of the statutes already enacted by Parliament. It must be
appreciated that the Juvenile Justice (Care and Protection of Children)
Act, 2015 is a medium for the State to honour the Directive Principles of
State Policy particularly under Article 39(f) of the Constitution by giving
opportunities to children to develop in a healthy manner and in conditions
of freedom and dignity. Indeed, though the Directive Principles of State
Policy are fundamental to the governance of the country, they are not
enforceable However, as held in Bandhua Mukti Morcha v. Union of India,
once a directive principle is enforced through law the State must be
obligated to enforce the statute to uphold its constitutional
obligation.[1]

14. In this context, it is pertinent to note that India acceded to the
Convention on the Rights of the Child (CRC) on the 11th December, 1992.
Article 19 of the CRC obligates the State Parties to “take all appropriate
legislative, administrative, social and educational measures to protect the
child from all forms of physical or mental violence, injury or abuse,
neglect or negligent treatment, maltreatment or exploitation, including
sexual abuse….”

15. Keeping all this in mind, the learned Amicus focused on three
principal issues namely (1) Children in need of care and protection; (2)
Trafficked children (3) Street children. We do not propose to consider the
plight of trafficked or street children, since that would mean losing focus
on the issues raised by Ms. Anjali Sinha. We leave open the issues of
trafficked children and street children for consideration in an appropriate
case.

16. On the rights of children in need of care and protection it was
submitted that issues relating to child care institutions whether managed
by the State Government or by NGOs or other voluntary organizations need to
follow certain minimum standards of care and in addition, rehabilitation
of such children must be a priority.

Children in need of care and protection

17. Who is a child in need of care and protection? The provisions of the
Protection of Children from Sexual Offences Act, 2012 (for short the ‘POCSO
Act’) do not provide any definition of a child in need of care and
protection. But no one can deny that a child victim of sexual abuse or
sexual assault or sexual harassment is a child in need of care and
protection. Similarly in a given case,a child accused of an offence and
brought before the Juvenile Justice Board or any other authority might also
be a child in need of care and protection.

18. Even though a child in need of care and protection is defined in
Section 2(14) of the Juvenile Justice (Care and Protection of Children)
Act, 2015 (hereinafter referred to as the JJ Act) the definition does not
specifically include some categories of children. Consequently, we are of
the view that since the JJ Act is intended for the benefit of children and
is intended to protect and foster their rights, the definition of a child
in need of care and protection must be given a broad interpretation. It
would be unfortunate if certain categories of children are left out of the
definition, even though they need as much care and protection as categories
of children specifically enlisted in the definition. Beneficial
legislations of the kind that we are dealing with demand an expansive view
to be taken by the Courts and all concerned.

19. In Workmen v. Management of American Express International Banking
Corporation[2] this Court held in paragraph 4 of the Report that:

“The principles of statutory construction are well settled. Words occurring
in statutes of liberal import such as social welfare legislation and human
rights’ legislation are not to be put in Procrustean beds or shrunk to
Liliputian dimensions. In construing these legislations the imposture of
literal construction must be avoided and the prodigality of its
misapplication must be recognised and reduced.”

20. A similar view was expressed in Regional Director, ESI Corporation.
v. Francis De Costa[3] when it was observed that “It is settled law that to
prevent injustice or to promote justice and to effectuate the object and
purpose of the welfare legislation, broad interpretation should be given,
even if it requires a departure from literal construction.”

21. The necessity of giving a purposeful interpretation to a provision in
a statute was recognized in MSR Leathers v. S. Palaniappan[4] when this
Court observed that:

“…..one of the salutary principles of interpretation of statutes is to
adopt an interpretation which promotes and advances the object sought to be
achieved by the legislation, in preference to an interpretation which
defeats such object. This Court has in a long line of decisions recognised
purposive interpretation as a sound principle for the courts to adopt while
interpreting statutory provisions.”

A similar view was expressed, though in a different context, in Badshah v.
Urmila Badshah Godse.[5] A far more detailed discussion on the subject is
to be found in the Constitution Bench decision of this Court in Abhiram
Singh v. C.D. Commachen.[6]

22. Read in this light, the definition of a child in need of care and
protection given in Section 2(14) of the JJ Act should be given a broad and
purposeful interpretation – it ought not to be treated as exhaustive but
illustrative and furthering the requirements of social justice. This
understanding would also be in consonance with Article 40 of the CRC which
stipulates that the “State Parties shall recognize rights of every child
accused of an offence and treatment of such a child shall be in a manner
consistent with promotion of the child’s dignity and worth”.

23. Learned Amicus drew our attention to decisions rendered by some
High Courts which have taken a broad based approach to the meaning of a
child in need of care and protection and some other High Courts that have
adopted a comparatively narrow interpretation. These decisions were
rendered in the context of the Juvenile Justice (Care and Protection) Act,
2000 and would not really be applicable insofar as the JJ Act is concerned.
However, this does not detract from her submission that a child in need of
care and protection must be given a wider meaning and in addition to some
children in conflict with law as discussed above, it must also include
victims of sexual abuse or sexual assault or sexual harassment under the
POCSO Act as also victims of child trafficking. Such children must also be
given protection under the provisions of the JJ Act being victims of crime
under the POCSO Act and the Immoral Traffic (Prevention) Act, 1956.
Child care institutions

24. Children in need of care and protection are given shelter in homes
that are managed by the State Government or by NGOs or by voluntary
organizations. In this context, it is necessary to draw attention to
Section 41 of the JJ Act which mandates, notwithstanding anything contained
in any other law for the time being in force, that all institutions,
whether run by a State Government or by voluntary organizations or NGOs
which are meant, either wholly or partially, for housing children in need
of care and protection shall be registered under the JJ Act in such manner
as may be prescribed within six months of the commencement of the said Act.
The JJ Act came into force on 15th January, 2016 but we were informed that
the process of registration is underway and not yet complete.
25. In this day and age when high quality technology is available and
there is no shortage of manpower in the country we are unable to appreciate
why the provisions of Section 41 of JJ Act have not yet been fully
implemented particularly as regards registration of child care
institutions. It is virtually impossible to find out what is going on
within its four walls. The article by Ms. Anjali Sinha is a prime example
of what can happen in child care institutions. It is not clear from the
article whether all the institutions referred to were registered or not,
but surely the government run institutions must have been registered or
licensed. Therefore, if activities of the nature mentioned by Ms. Anjali
Sinha in her article are carried out in government run institutions, one
can only imagine what possibly can go wrong in unregistered institutions,
which are managed beyond the law.

26. Apart from their registration, the statute requires quite a few
salutary actions to be taken by such institutions including recording the
residential capacity and purpose of the child care institution. Rule 21 of
the Juvenile Justice (Care and Protection of Children) Model Rules, 2016
(hereinafter referred to as the Model Rules) specifies the manner of
registration of child care institutions and provides, inter alia, the
availability of the bye-laws and memorandum of association, office bearers
etc. of such institutions. The State Government is obligated to consider an
application for registration of a child care institution (in Form 27) in
light of aspects like whether provision exists for the care and protection
of children, their health, education, boarding and lodging facilities,
vocational studies and rehabilitation (among others things). It is only
then that a certificate of registration can be issued. The State Government
is also obligated to conduct an inspection of an applicant institution and
it appears to us that if such an inspection is faithfully and sincerely
carried out, it will reveal the dark underbelly, if any, of a dubious child
care institution such as those referred to by Ms. Anjali Sinha. The
strict implementation of the provisions of the JJ Act will go a long way in
making the life of children in such child care institutions safer and far
more comfortable than it has been and also reduce the possibility of crimes
such as trafficking, sexual abuse or sexual assault or sexual harassment of
children. If the registration of child care institutions is not complete,
their management obviously cannot be supervised. Therefore, a misstep in
the very first stage could have a chain reaction and perhaps disastrous
consequences in some cases as is evident from the incidents of child abuse
in institutions as brought out by Ms. Anjali Sinha.

Minimum Standards of care
27. Article 3 of the CRC mandates that all actions concerning children
undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies shall have the best
interest of the children as a primary consideration. Article 3(3) of the
CRC specifically obligates the State Parties to ensure that institutions
responsible for care and protection of children shall conform to standards
laid down by competent authorities, particularly in areas of safety,
health, staff and supervision. However, the minimum standards of care
prescribed for institutions cannot be ensured if the child care institution
is not identified and registered.
28. In this regard it is necessary to draw attention to the provisions of
Chapter VI of the Model Rules particularly the series of rules starting
from Rule 26 onwards. Amongst other things, these Rules deal with the
staffing pattern of child care institutions, physical infrastructure,
clothing, bedding, toiletries and other articles, sanitation and hygiene,
daily routine, nutrition and diet scale, medical health, mental health,
education, vocational and recreational facilities and genuine efforts in
the rehabilitation and re-integration of such children into society. All
these requirements are rendered unenforceable in the absence of
registration of child care institutions.
29. The Integrated Child Protection Scheme, which also concerns itself
with the minimum standards of care in child care institutions, refers to
several of these requirements and also draws attention to the
rehabilitation programme of children and their recreation. The minimum
standards of care prescribed for child care institutions must be adhered to
in letter and spirit and not only on paper.
30. We have been given to understand by the learned Amicus that
unfortunately, even in registered child care institutions, many of the
statutory facilities and requirements are missing. If that be so, we can
only imagine the living conditions of children in unregistered
institutions.

31. In a given case, failure to maintain a basic or minimum standard of
care can be actionable as negligence. In Jacob Mathew v. State of Punjab[7]
this Court cited Charlesworth & Percy on Negligence[8] and held that the
essential components of negligence are: (1) the existence of a duty to take
care, which is owed by the defendant to the complainant; (2) the failure to
attain that standard of care, prescribed by the law, thereby committing a
breach of such duty; and (3) damage, which is both causally connected with
such breach and recognized by the law, has been suffered by the
complainant. Effectively therefore, if the officers of the State do not
ensure that minimum standards of care are followed in the child care
institutions, they could well be guilty of negligence. Since ours is a
welfare State it would be difficult for uncaring officers to absolve
themselves of a charge of negligence and also perhaps of a violation of the
human rights of children.

Utilization of grants
32. During the course of hearing, we found that many of the Model Rules
though workable and beneficial, exist only on paper and there has been no
serious attempt to implement the provisions or the requirements under the
Integrated Child Protection Scheme. One of the concerns that kept coming
up as an excuse for non-implementation of the Rules was a so-called
shortage of funds. We are surprised that such an excuse was advanced even
though a large amount allocated towards child welfare is lying unspent.

33. Really therefore, the problem is not a lack of funds but the absence
of a will to gainfully utilize the available grants. In this context,
learned Amicus brought to our notice by way of an example, the statement of
expenditure under the Integrated Child Protection Scheme for the year 2013-
14. This indicates that the unspent grant is over Rs.3000 lakhs. (This
figure does not include unspent amounts by the State of Andhra Pradesh and
the State of Uttarakhand). Therefore, it cannot be said that there is a
shortage of funds. The chart brought on record is as follows:-

|Year-wise details of unspent grants |
|Sl. No. |Name of the State|Unspent |
| | |(Amount in |
| | |Lakhs) |
| | |2013-14 |
|1 |Andhra Pradesh |2999.28* |
|2 |Arunachal Pradesh|147.05 |
|3 |Assam |148.47 |
|4 |Bihar |442.14 |
|5 |Chhattisgarh |0.00 |
|6 |Goa |- |
|7 |Gujarat |545.23 |
|8 |Haryana |238.92 |
|9 |Himachal Pradesh |138.10 |
|10 |Jammu & Kashmir |- |
|11 |Jharkhand |147.21 |
|12 |Karnataka |57.94 |
|13 |Kerala |291.52 |
|14 |Madhya Pradesh |1084.67 |
|15 |Maharashtra |0.00 |
|16 |Manipur |473.13 |
|17 |Meghalaya |0.00 |
|18 |Mizoram |0.00 |
|19 |Nagaland |0.00 |
|20 |Orissa |2.63 |
|21 |Punjab |749.37 |
|22 |Rajasthan |253.33 |
|23 |Sikkim |50.36 |
|24 |Tamil Nadu |589.22 |
|25 |Tripura |0.00 |
|26 |Uttar Pradesh |99.92 |
|27 |Uttarakhand |333.92* |
|28 |West Bengal |268.95 |
|29 |Andaman & Nicobar|- |
| |Island | |
|30 |Chandigarh |25.17 |
|31 |Dadra & Nagar |9.63 |
| |Haveli | |
|32 |Daman & Diu |58.63 |
|33 |Delhi |676.68 |
|34 |Lakshadweep |- |
|35 |Puducherry |- |
|Total | |6498.27 |
* States have not submitted their Statement of Expenditure
(SOE)

We are told that the same situation continued for subsequent years as well.

34. No doubt, it is the constitutional obligation of the State to ensure
that for safeguarding and fostering the rights of children, adequate funds
are available particularly for children who are in need of care and
protection. The State cannot conflate non-availability of funds to shirk
their obligations with inefficient utilization of grants. We are pained
that such an excuse is being trotted out.

National and State Commissions

35. Parliament has, of course, appreciated the need for protecting the
rights of children in many of the ways that we have mentioned above and
that is why the Commissions for Protection of Child Rights Act, 2005 was
enacted. In fact the Preamble to the said Act is extremely significant and
brings into focus not only the necessity of protecting the rights of
children generally but also as a part of our obligations to the
international community. The Preamble to the Commissions for Protection of
Child Rights Act, 2005 (hereinafter referred to as ‘the CPCR Act’) reads as
follows:
“An Act to provide for the constitution of a National Commission and State
Commissions for Protection of Child Rights and Children’s Courts for
providing speedy trial of offences against children or of violation of
child rights and for matters connected therewith or incidental thereto.
WHEREAS India participated in the United Nations (UN) General Assembly
Summit in 1990, which adopted a Declaration on Survival, Protection and
Development of Children;
AND WHEREAS India has also acceded to the Convention on the Rights of the
Child (CRC) on the 11th December, 1992;
AND WHEREAS CRC is an international treaty that makes it incumbent upon the
signatory States to take all necessary steps to protect children’s rights
enumerated in the Convention;
AND WHEREAS in order to ensure protection of rights of children one of the
recent initiatives that the Government have taken for Children is the
adoption of National Charter for Children, 2003;
AND WHEREAS the UN General Assembly Special Session on Children held in May
2002 adopted an Outcome Document titled “A World Fit for Children”
containing the goals, objectives, strategies and activities to be
undertaken by the member countries for the current decade;
AND WHEREAS it is expedient to enact a law relating to children to give
effect to the policies adopted by the Government in this regard, standards
prescribed in the CRC, and all other relevant international instruments;”

36. To fulfill the obligations to children, the CPCR Act provides for the
constitution of a National Commission for Protection of Child Rights (for
short ‘the NCPCR’) and for the constitution of State Commissions for
Protection of Child Rights (for short ‘the SCPCR’). These Commissions are
intended to function under the provisions of the CPCR Act and their vast
range of functions has been delineated in Section 13 as well as in Section
24 of the CPCR Act.

37. It was pointed out by the learned Amicus that the NCPCR and the SCPCR
can play a very crucial role in fostering child rights. This deserves to
be recognized, but is unfortunately overlooked both by the Union Government
as well as by the State Governments. She pointed out that there are a
large number of vacancies in many of these bodies and in fact the NCPCR
was, at one time, without any Chairperson for more than a year. Some of
the State Governments have also not bothered to fill up the vacancies in
the SCPCR and some others have used the SCPCR as a sinecure for some
favourites. This again, as pointed out, is nothing but providing lip
service to the provisions of a parliamentary legislation and not giving
serious attention to the constitutional rights of children. This is
certainly not acceptable.

38. Similarly, in the implementation of the POCSO Act, the NCPCR and the
SCPCR have a vital role to play. As mentioned above, issues of sexual abuse
or sexual assault or sexual harassment complained of by Ms. Anjali Sinha
need attention and Section 44 of the POCSO Act places a great burden on the
shoulders of the NCPCR and the SCPCRs. These authorities have an obligation
to monitor the implementation of the POCSO Act as is evident from Section
44 thereof which reads as follows:

“44. Monitoring of implementation of Act – (1) The National Commission for
Protection of Child Rights constituted under Section 3, or as the case may
be, the State Commission for Protection of Child Rights constituted under
Section 17, of the Commissions for Protection of Child Rights Act, 2005 (4
of 2006), shall, in addition to the functions assigned to them under that
Act, also monitor the implementation of the provisions of this Act in such
manner as may be prescribed.

(2) The National Commission or, as the case may be, the State Commission,
referred to in sub-section (1), shall, while inquiring into any matter
relating to any offence under this Act, have the same powers as are vested
in it under the Commissions for Protection of Child Rights Act, 2005 (4 of
2006).

(3) The National Commission or, as the case may be, the State Commission,
referred to in sub-section (1), shall, also include, its activities under
this section, in the annual report referred to in Section 16 of the
Commissions for Protection of Child Rights Act, 2005 (4 of 2006).”

39. In our opinion, it is imperative that the NCPCR and the SCPCR be
allowed to function in terms of the CPCR Act and the POCSO Act and only for
the benefit of children. These Commissions are under an obligation to take
action wherever necessary including approaching the Constitutional Courts
wherever necessary. These Commissions are under an obligation to prepare
annual reports and if necessary special reports but it has been pointed out
that this requirement has hardly been implemented mainly because of a lack
of interest that these Commissions have shown in functioning under the
statute and also partly because of the large number of vacancies in these
Commissions.

40. This is not to suggest that the NCPCR or the SCPCRs are not doing a
good job. On the contrary, the NCPCR has of late begun taking its statutory
obligations quite seriously and there are a few SCPCRs that are also
faithfully performing their functions under the relevant statutes. On the
other hand, there are some SCPCRs that are not performing well at all or
are defunct and headless. It is difficult to appreciate how, under these
circumstances, the JJ Act or the POCSO Act can at all be implemented, let
alone implemented effectively.

41. Needless to say, it is obligatory on the part of the Union Government
as well as of the State Governments to ensure that the provisions of laws
enacted by Parliament are faithfully and sincerely implemented and the
statutory Commissions constituted under the provisions of the CPCR Act must
be allowed to function as independent statutory bodies under the provisions
of the said Act, the POCSO Act as well as the JJ Act.

42. The rule of law includes adherence to parliamentary legislation by
all concerned including State Governments and the Union Government and it
would be extremely unfortunate if the concerned governments voluntarily and
knowingly flout the provisions of law solemnly enacted by Parliament. We
need say nothing more on this subject, except that laws solemnly enacted by
Parliament cannot be insulted by putting hurdles in the effective
functioning of these Commissions, such as by not appointing the Chairperson
or Members.

Rehabilitation and social re-integration

43. With regard to the future of children in need of care and protection,
the JJ Act contains obligatory provisions such as Section 53 which deals
with rehabilitation and social re-integration services in child care
institutions. This provision requires the State to take care of the basic
requirements of children in such institutions including children with
special needs, legal aid where required and more importantly assistance in
obtaining proof of identity. There have been instances brought to our
notice where children;particularly in the case of abandoned children, are
unable to give any information about their parentage or permanent address
etc. In such cases, proof of identify is crucial for the welfare of the
child, otherwise he or she is reduced to a mere statistic.

44. The provision for rehabilitation and re-integration services has
several facets and cannot be read in isolation but must be read, inter
alia, in conjunction with Section 54 of the JJ Act which requires the
inspection of child care institutions registered under the said Act.
Inspection Committees are required to be set up which shall mandatorily
visit all facilities housing children in the area allocated, at least once
in three months in a team of not less than three members, of whom at least
one shall be a woman and one shall be a medical officer. Their Inspection
Reports are required to be furnished to the District Child Protection Unit
or the State Government, as the case may be, for further action. Form 46
of the Model Rules prepared under Rule 41 thereof is quite exhaustive and
if the Form is filled up with due seriousness it will go a long way in
improving the living conditions of children in child care institutions.

45. The importance of rehabilitation and social re-integration clearly
stands out if we appreciate the objective of the JJ Act which is to foster
restorative justice. There cannot be any meaningful rehabilitation,
particularly of a child in conflict with law who is also a child in need of
care and protection unless the basic elements and principles of restorative
justice are recognized and practised.

46. Unfortunately, one of the problems faced in introducing restorative
justice is that a child in a child care institution is treated as a number
and no effort is made to introduce any individual child care plan
postulated by Rule 19 of the Model Rules read with Form 7. Learned Amicus
informed us that the Form is very rarely filled up (if at all) and little
or no attention is paid to the needs of each child including a child in
conflict with law. She submitted that specific directions should be given
for the preparation of individual child care plans in every child care
institution since that is really the heart of rehabilitation and social re-
integration of a child in need of care and protection. Of course, some
expertise is involved in this exercise but as we had mentioned earlier,
there is no shortage of manpower in our country and it is only the will of
the State Governments, Union Territories and the Union Government which is
coming in the way of the effective implementation of the provisions of the
JJ Act, Model Rules and filling up various Forms and their analysis.

Training of personnel

47. One of the more important issues raised by the learned Amicus in the
context of rehabilitation and social re-integration is to be found in Rule
89 of the Model Rules which concerns itself with training of personnel
dealing with children. This rule provides for a minimum period of 15 days
training to various categories of personnel under the JJ Act including the
staff of Children’s Courts, Principal Magistrates and Members of Juvenile
Justice Boards, Chairpersons and Members of Child Welfare Committees,
Police Officers including persons in charge of child care institutions etc.
Rule 89 of the Model Rules also postulates that the Judicial Academy and
the Police Academy in the States as well as the State Legal Services
Authorities prepare appropriate training modules, training manuals and
provide training to personnel. It was pointed out by the learned Amicus
that this rule is being followed more in the breach and there is hardly any
Judicial Academy or Police Academy or State Legal Services Authority which
conducts 15 days training programmes. This is quite unfortunate to say the
least.

48. The importance of quality training can best be understood by giving a
negative example, which is that unless proper training is imparted to the
concerned personnel, it is quite possible that strange practices and
procedures may evolve due to the absence of proper guidance. It has been
brought to our notice in cases of adoption of children some extremely
unusual and impracticable orders have been passed by the concerned Courts.
It is high time that the High Courts exercise their supervisory
jurisdiction and intervene and take appropriate remedial steps. It is also
high time that training of personnel be given due importance. We may note
here that it was brought to our attention by the learned Amicus that
untrained or inadequately trained personnel can unwittingly play havoc with
the lives of victims of sexual abuse or sexual assault or sexual
harassment.

De-institutionalization

49. In the context of rehabilitation and social re-integration, it was
submitted before us that institutionalization of children is not
necessarily the only available option. This submission of the learned
Amicus also finds support in Article 20 of the CRC. The Article obligates
the State Parties to provide special protection and assistance to children
temporarily or permanently deprived of family environment. The Article
illustrates alternate care in the form of foster placement, adoption “or if
necessary placement in suitable institution”. It is clear that the first
option exercised by the authorities should not be institutionalization of a
child in need of care and protection and the same is a measure of the last
resort. Article 40(4) of the CRC pertaining to children accused of
violating the law also states that the State Parties shall ensure “care,
guidance, supervision, counseling, probation, foster care, education and
vocational training and other alternatives to institutional care”. Indeed,
in keeping with the spirit of the CRC, the JJ Act itself encourages
alternatives to institutionalization such as adoption (Chapter VIII),
foster care (Section 44) and Sponsorship (Section 45). This too needs some
serious thought, as submitted by the learned Amicus.

50. The learned Additional Solicitor General brought to our notice that
the Union Government has since framed the Adoption Regulations, 2017 as
well as the Model Guidelines for Foster Care, 2016. These need to be
implemented by all concerned including the Courts, particularly those
dealing with issues of adoption. However, as mentioned above, training in
the understanding and appreciation of the JJ Act, the Model Rules,
Regulations and Guidelines is imperative and merely handing over copies of
these documents to the concerned personnel even if they are judicial
officers or police officers or government functionaries is not enough.
Some sort of training is absolutely necessary so that the aims and objects
of the various statutory provisions enacted for the benefit of children and
to foster their rights are implemented in letter and spirit.

51. We must emphasize, at this stage that it is absolutely necessary for
all stakeholders having interest in the welfare of children to work
together towards a common goal. This teamwork would include not only the
government machinery but also the police, civil society and the judiciary.

Juvenile Justice Committee

52. That the judiciary is not far behind in fulfilling its constitutional
responsibilities is obvious from the fact that the rather slack
implementation of the Juvenile Justice (Care and Protection of Children)
Act, 2000 even after four years of its enactment, compelled the Chief
Justice of India to request all the High Courts to set up a Juvenile
Justice Committee to ensure effective implementation of the said Act and
monitor the activities under the said Act. The High Courts have a
constitutional obligation to ensure that the rights of all citizens,
including children, as guaranteed under the Constitution are preserved,
protected and respected. With this in mind, all the High Courts have since
set up a Juvenile Justice Committee consisting of Judges of the High Court
and these Committees ensure that the provisions of the Act are implemented
in letter and spirit. For better co-ordination on issues relating to
children, some High Courts have also provided a Secretariat for the
Juvenile Justice Committee.

53. With the passage of time, it has been realized that the importance of
the Juvenile Justice Committee in the High Court cannot be overemphasized.
It is time for all of us to now realize that judges are no longer required
to remain in an ivory tower. Judges of all the Courts including the
Constitutional Courts have non-judicial duties and obligations to perform
so that the fundamental rights of the people are respected. It is this
realization that led the Constitutional Courts to exercise jurisdiction in
social justice issues through Public Interest Litigation and it is this
that requires judges of the Courts to ensure access to justice under the
Legal Services Authorities Act, 1986 to indigent people and those who
cannot afford legal services due to financial or other constraints. It is
very much in keeping with this constitutional obligation and goals that the
concern and involvement of each Juvenile Justice Committee in the effective
implementation of the Act is an absolute necessity. It is equally the
obligation of the concerned officials of the State, including the police,
to render all assistance to each Juvenile Justice Committee to ensure that
the goals envisaged by the JJ Act and the constitutional vision are
successfully achieved in the shortest possible time.

Social audit

54. For the purposes of ensuring that the implementation of the JJ Act is
proceeding in the right direction, it is necessary that a social audit be
conducted every year. Social audits give reasons for introspection as well
as for improvement in the services.

55. Social audit has gained relevance as a tool of public accountability.
It has been defined as “an assessment of a department’s non financial
objectives through systematic and regular monitoring on the basis of the
views of its stakeholders.”[9] A social audit is considered novel as it is
supposed to serve as a supplement to a conventional Government Audit, often
done in 12 month cycles generating an audit report every time.[10] In fact,
in the Report of the Task Group on Social Audit by the Office of the
Comptroller and Auditor General, it was opined that social audit be brought
into the mainstream of auditing by the Indian Audit and Accounts Department
as an essential process and tool in all the performance audits of social
sector programmes as they afford an opportunity to strengthen the micro
level scrutiny of the programme planning, implementation and
monitoring.[11]

56. The requirement of a social audit is necessary not only for purposes
of introspection but also transparency and accountability in the effective
implementation of the JJ Act. There cannot be any reason to avoid
conducting social audits, more particularly since they have been encouraged
by the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 as well
as by the Integrated Child Protection Scheme, by the Comptroller and
Auditor General of India and the National Food Security Act, 2013. The
impression given to us is that for some inexplicable reason the Union
Government is shying away from social audits.

57. In the hearing on 17th April, 2015, the learned Additional Solicitor
General informed us that no social audit was carried out despite the rule
being notified in 2007. The Union of India was then directed to finalize a
policy for conducting social audits. In the hearing on 30th October, 2015
we were informed that the formats for social audit have been more or less
finalized. In its affidavit filed sometime in November 2015, the Union of
India has annexed copies of Model Social Audit Formats for Child Welfare
Committees, Juvenile Justice Boards, Special Juvenile Police Units,
Children Homes, Specialized Adoption Agencies, Open Shelter/Shelter Homes,
Observation Homes and Special Homes. It is stated in the affidavit that
these formats will be circulated for pilot testing by selected States as
mentioned in an earlier affidavit dated 29th October, 2015.

58. We have not been informed whether any steps have been taken to
conduct social audits in terms of the Model Formats prepared by the Union
of India or the result of the pilot testing, if any. It is therefore
necessary to ensure that these formats are tested out with urgency so that
the implementation of the JJ Act is made more meaningful.

Technology and computers

59. We have been given to understand that there is no data base of all
the child care institutions in the country. State Governments have not even
validated the available data or undertaken the mapping of child care
institutions in collaboration with the Union Government. This is an
essential first step since it is difficult to imagine how children in child
care institutions can be cared for if there is no record of the number of
institutions, number of children in such institutions, relevant information
regarding the children etc. Therefore technology can be put to good use for
collection, revision and access of records of children in need of care and
protection and the child care institutions.

60. It is imperative for the Union Government as well as the State
Governments to make out a complete list of all child care institutions
along with their addresses and the person in charge or the principal
officer as well as full details of the children residing in these child
care institutions. Learned Amicus submitted that all these details,
though necessary, are not available with the Union Government or the NCPCR.
Availability of all this information is possible only with the use of
technology and a massive computerization program.

61. Similarly, for the effective functioning of the Juvenile Justice
Boards as well as the Child Welfare Committees, it is necessary that they
should be equipped with computers and printers along with uninterrupted
power supply units so that their day to day functioning can be taken care
of. Learned Amicus pointed out that perhaps this may be asking for too
much since she has received complaints to the effect that very often
stationery is not available with the Child Welfare Committees or the
Juvenile Justice Boards and an appropriate requisition has to be made to
the State Government or the local authority, which is leisurely processed.
In our opinion if this submission were to be accepted it would indicate a
very sorry state of affairs in which the Juvenile Justice Boards and the
Child Welfare Committees are made to function. This step-child attitude
cannot be permitted to continue since these statutory bodies are vital for
having necessary supervision over child care institutions within their
jurisdiction.

Directions

62. In view of the above discussion, the following directions are issued:

The definition of the expression “child in need of care and protection”
under Section 2(14) of the JJ Act should not be interpreted as an
exhaustive definition. The definition is illustrative and the benefits
envisaged for children in need of care and protection should be extended to
all such children in fact requiring State care and protection.

The Union Government and the governments of the States and Union
Territories must ensure that the process of registration of all child care
institutions is completed positively by 31st December, 2017 with the entire
data being confirmed and validated. The information should be available
with all the concerned officials. The registration process should also
include a data base of all children in need of care and protection which
should be updated every month. While maintaining the database, issues of
confidentiality and privacy must be kept in mind by the concerned
authorities.

The Union Government and the governments of the States and Union
Territories are directed to enforce the minimum standards of care as
required by and in terms of the JJ Act and the Model Rules positively on or
before 31st December, 2017.

The governments of the States and Union Territories should draw up plans
for full and proper utilization of grants (along with expenditure
statements) given by the Union Government under the Integrated Child
Protection Scheme. Returning the grants as unspent or casual utilization
of the grants will not ensure anybody’s benefit and is effectively wasteful
expenditure.

It is imperative that the Union Government and the governments of the
States and Union Territories must concentrate on rehabilitation and social
re-integration of children in need of care and protection. There are
several schemes of the Government of India including skill development,
vocational training etc which must be taken advantage of keeping in mind
the need to rehabilitate such children.

The governments of the States and Union Territories are directed to set up
Inspection Committees as required by the JJ Act and the Model Rules to
conduct regular inspections of child care institutions and to prepare
reports of such inspections so that the living conditions of children in
these institutions undergo positive changes. These Inspection Committees
should be constituted on or before 31st July, 2017 and they should conduct
the first inspection of the child care institutions in their jurisdiction
and submit a report to the concerned government of the States and Union
Territories on or before 31st December, 2017.

The preparation of individual child care plans is extremely important and
all governments of the States and Union Territories must ensure that there
is a child care plan in place for every child in each child care
institution. While this process may appear to be long drawn and
cumbersome, its necessity cannot be underestimated in any circumstances.
The process of preparing individual child care plans is a continuing
process and must be initiated immediately and an individual child care plan
must be prepared for each child in each child care institutions on or
before 31st December, 2017.

Wherever the State Commission for Protection of Child Rights has not been
established or though established is not fully functional in the absence of
a Chairperson or any one or more Members, the governments of the States and
Union Territories must ensure that all vacancies are filled up with
dedicated persons on or before 31st December, 2017. The SCPCRs so
constituted must publish an Annual Report so that everyone is aware of
their activities and can contribute individually or collectively for the
benefit of children in need of care and protection.
The training of personnel as required by the JJ Act and the Model Rules is
essential. There are an adequate number of academies that can take up this
task including police academies and judicial academies in the States. There
are also national level bodies that can assist in this process of training
including bodies like the Bureau of Police Research and Training, the
National Judicial Academy and others including established NGOs. Wherever
possible training modules should be prepared at the earliest.

It is time that the governments of the States and Union Territories
consider de-institutionalization as a viable alternative. It is not
necessary that every child in need of care and protection must be placed in
a child care institutions. Alternatives such as adoption and foster care
need to be seriously considered by the concerned authorities.

The importance of social audits cannot be over-emphasized. The necessity
of having a social audit has been felt in some statutes which have been
mentioned above and also by the Comptroller and Auditor General of India.
That being the position, it is imperative that the process of conducting a
social audit must be taken up in right earnestness by the National
Commission for the Protection of Child Rights as well as by each State
Commission for the Protection of Child Rights. This is perhaps the best
possible method by which transparency and accountability in the management
and functioning of child care institutions and other bodies under the JJ
Act and Model Rules can be monitored and supervised.

While the Juvenile Justice Committee in each High Court is performing its
role in ensuring the implementation of the JJ Act and Model Rules, there is
no doubt that each Committee will require a small Secretariat by way of
assistance. We request each Juvenile Justice Committee to seriously
consider establishing a Secretariat for its assistance and we direct each
State Government and Union Territory to render assistance to the Juvenile
Justice Committee of each High Court and to cooperate and collaborate with
the Juvenile Justice Committee in this regard.

We acknowledge the contribution made by Ms. Aparna Bhat in taking keen
interest in the issues raised in this PIL and for rendering effective
assistance to this Court at all times. The Supreme Court Legal Services
Committee will give an honorarium of Rs. 2 lakhs to Ms. Aparna Bhat out of
the funds available for juvenile justice issues.

While there may be some other issues specifically concerning children in
need of care and protection we leave these issues open for consideration
and grant liberty to the learned Amicus to move an appropriate application
in this regard including any application for modification or clarification
of the directions given above.

The Union of India is directed to communicate our directions to the
concerned Ministry or Department of each State and Union Territory for
implementation and to collate necessary information regarding the
implementation of these directions with the assistance of the National
Commission for the Protection of Child Rights and the State Commission for
the Protection of Child Rights. A status report in this regard should be
filed in this Court on or before 15thJanuary, 2018. The Registry will list
this case immediately thereafter.
………………………J
(Madan B. Lokur)
………………………J
May 5 , 2017 (Deepak Gupta)
New Delhi;
———————–
[1]

[2](1984) 3 SCC 161
[3]

[4](1985) 4 SCC 71
[5]

[6]1993 Supp (4) SCC 100
[7]

[8](2013) 1 SCC 177
[9]

[10](2014) 1 SCC 188
[11]

[12](2017) 2 SCC 629
[13]

[14](2005) 6 SCC 1
[15]

[16]10th Edition (2001)
[17]

[18]Social Audit: A Toolkit, A Guide for Performance Improvement and
Outcome Measurement available at
https://cgg.gov.in/publicationdownloads2a/Social%20Audit%20Toolkit%20Final.p
df.
[19]

[20] Ibid
[21]

[22]Report of the Task Group on Social Audit, Office of the
Comptroller and Auditor General of India, (2010) at pg 5

Posted in Uncategorized

Land acquisition Act- In the matter on hand, none of the parties have led oral evidence in support of their respective cases. However, certified copies of the two Sale Deeds are available on record which came to be produced by the parties before the Reference Court. The Sale Deed dated 24.01.1974 relied upon by the appellants depicts the price of one bigha of the property sold through the said sale deed was at Rs. 7,000/-, whereas the respondents relied upon the certified copy of Sale Deed dated 19.03.1971 which shows that the land therein was sold at the rate of Rs. 2,000/- per bigha under the said Sale Deed.-Though the Reference Court as well as the High Court have assigned valid reasons for not relying upon the Sale Deed dated 24.01.1974 relied upon by the claimants, have erred in ignoring to consider the Sale Deed dated 19.03.1971 produced by the respondents. The Reference Court as well as the High Court have merely observed, in the course of the judgment, that certified copy of such Sale Deed is produced by the respondents, but no further discussion was made as to why the said Sale Deed was not considered.- we do not find any reason to ignore the Sale Deed produced by the respondents in support of their case. As mentioned supra, the Sale Deed dated 19.03.1971 is in respect of 11 bighas and 10 biswas of land situated in the village Roshan Pura. As per the said Sale Deed, the price per bigha of the land involved therein would be about Rs. 2000/-. Prima facie, the land in question as well as the land covered under the Sale Deed dated 19.03.1971 are approximately having the similar dimension and are situated in the same village i.e. Roshan Pura. The respondents being the beneficiaries under the acquisition have themselves relied upon the Sale Deed dated 19.03.1971 as the sole basis to oppose the prayer of the claimants. Some sort of guess work is necessary while determining compensation for the land acquired. One has to perceive from the view point of the prudent purchaser. As the acquisition is of the year 1973, we do not wish to remit the matter to Reference Court. Having regard to the totality of the facts and circumstances of the matter, in our considered opinion, the compensation may be determined relying upon the Sale Deed dated 19.03.1971 particularly when there is no other reliable material on record. Since the land under the said Sale Deed dated 19.03.1971 was valued at a sum of Rs. 2,000/- per bigha, and as the land in question was acquired in the year 1973, the compensation can be determined by adding 15% of the value of the sale consideration per year keeping in mind the escalation in price of the lands day by day. Normally 15% escalation is taken, per year by this Court in recent times while quantifying compensation. Thus, the claimants would be entitled to Rs. 2,600/- per bigha.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5630 of 2017
(Arising out of S.L.P. (Civil) No.14272 of 2015)

Jage Ram (D) Thr. Lrs. ….Appellant(s)

Versus

Union of India & Anr.
…..Respondent(s)

WITH

CIVIL APPEAL NO. 5631 of 2017
(Arising out of S.L.P. (Civil) No.14277 of 2015)

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.
The appellants are owners of the land to an extent of ½ share in
Khasra No. 46 (4-08), 462 (4-16), 463 (4-14), totally measuring 13 bighas
18 biswas situated in revenue estate of Village Roshan Pura, New Delhi.
The land was acquired for the public purpose of construction of Sub-
Divisional Office. The Land Acquisition Collector passed the Award bearing
no. 45/78-79, awarding compensation at the rate of Rs. 2,200/- per bigha
along with statutory benefits such as solatium, interest etc. as provided
under the Land Acquisition Act, 1894.

1. The appellants, being dissatisfied with the quantum of compensation
awarded by the Land Acquisition Collector, filed petition under Section 18
of the Land Acquisition Act. The said petition came to be dismissed by the
Reference Court/Additional District Judge, Delhi on 04.10.2005 in LA Case
No. 896 of 1993. The appellants further approached the High Court of Delhi
by filing LA.A.No.34/2006 and L.A.A.No.35-54/2006 which also came to be
dismissed. The appellants are aggrieved by the award of the Land
Acquisition Collector, Award passed by the Reference Court as well as by
the judgment of the High Court.

2. Mr. Arvind K. Sharma, the learned counsel for the
claimants/appellants submitted that the Reference Court as well as the High
Court were not justified in ignoring the Sale Deed dated 24.01.1974
produced by the claimants in respect of the land measuring 4 bighas and 16
biswas situated adjoining Chhawla Gurgaon Road in village Roshan Pura,
Delhi which depicts that the price per bigha was about Rs.7,000/-.
According to him, though no relevant evidence is adduced by the parties
including the claimants, the aforementioned certified copy of the sale deed
could be sufficient evidence in support of the case of the claimants for
getting higher compensation.

3. Per contra, Ms. Garima Prashad, learned counsel for the respondents
argued that the Land Acquisition Collector has sufficiently compensated the
claimants in respect of the acquired land therefore, the Reference Court as
well as the High Court were justified in dismissing the contention of the
claimants for enhanced compensation.

4. In the matter on hand, none of the parties have led oral evidence in
support of their respective cases. However, certified copies of the two
Sale Deeds are available on record which came to be produced by the parties
before the Reference Court. The Sale Deed dated 24.01.1974 relied upon by
the appellants depicts the price of one bigha of the property sold through
the said sale deed was at Rs. 7,000/-, whereas the respondents relied upon
the certified copy of Sale Deed dated 19.03.1971 which shows that the land
therein was sold at the rate of Rs. 2,000/- per bigha under the said Sale
Deed.

5. Though the Reference Court as well as the High Court have assigned
valid reasons for not relying upon the Sale Deed dated 24.01.1974 relied
upon by the claimants, have erred in ignoring to consider the Sale Deed
dated 19.03.1971 produced by the respondents. The Reference Court as well
as the High Court have merely observed, in the course of the judgment, that
certified copy of such Sale Deed is produced by the respondents, but no
further discussion was made as to why the said Sale Deed was not
considered.

6. We do not want to burden this judgment by reiterating the reasons
assigned by the Reference Court as well as the High Court while refusing to
rely on the Sale Deed dated 24.01.1974 produced by the claimants
particularly when we find that the courts have on facts justified in doing
so. We also find that there is no evidence to show the similarity in
location/situation of the acquired land vis-à-vis the land which is the
subject matter of the Sale Deed dated 24.01.1974. Moreover, the land
involved in the Sale Deed dated 24.01.1974 is relatively very small piece
of land having dimension to the extent of 1/4th of the land in question.
While awarding the compensation for the acquired land, the Court must take
into account several factors including fertility, yield, nature of soil,
comparative sale statistics, its present use, its capacity for the higher
potential, the precise location, potentiality to use for non-agricultural
purposes, the use to which the land was put, its’ proximity to develop as
urban area etc. etc. It is also to be borne in mind the special value
which ought to be attached in respect of the special advantages, if any,
possessed by the land. In the matter on hand unfortunately, no such
evidence was let in by the claimants to show that the land covered under
Sale Deed dated 24.01.1974 is having the similar characteristics as the
land in question. Therefore, both the Courts below have rightly not relied
upon the Sale Deed dated 24.01.1974 while coming to the conclusion.

7. Learned counsel for the appellants relied upon the judgment in the
case of Suresh Prasad @ Hari Kishan & Ors. Vs. Union of India & Ors. (Civil
Appeal No. 1726 of 2015 decided on 18.3.2015) wherein this Court has fixed
compensation of Rs. 22,00,000/- (Rupees twenty two lakhs only) per acre in
respect of the land acquired under Acquisition Notification issued on
5.8.2003. The land involved in the said matter was of village Masoodabad.
The said judgment cannot be relied upon in the matter on hand, as much as,
in the present matter, the Notification issued was of the year 1973 and
whereas the Notification issued in the case of Suresh Prasad was in the
year 2003 i.e. almost 30 years later. Moreover, the land involved in the
Suresh Prasad’s case is situated in village Masoodabad which is stated to
be about 5 K.Ms. far from village Roshan Pura wherein the land to be
compensated is situated in this matter. In the case of Suresh Prasad,
the Land Acquisition Collector had determined compensation of Rs.15.70
lakhs per acre and the same was enhanced to Rs.24 lakhs by this Court. The
compensation determined in the case of Suresh Prasad was purely based on
the facts of that case and there is nothing on record to show that the land
involved in Suresh Prasad’s case was having the same characteristics as the
land in the present matter.

8. However, we do not find any reason to ignore the Sale Deed produced
by the respondents in support of their case. As mentioned supra, the Sale
Deed dated 19.03.1971 is in respect of 11 bighas and 10 biswas of land
situated in the village Roshan Pura. As per the said Sale Deed, the price
per bigha of the land involved therein would be about Rs. 2000/-. Prima
facie, the land in question as well as the land covered under the Sale Deed
dated 19.03.1971 are approximately having the similar dimension and are
situated in the same village i.e. Roshan Pura. The respondents being the
beneficiaries under the acquisition have themselves relied upon the Sale
Deed dated 19.03.1971 as the sole basis to oppose the prayer of the
claimants. Some sort of guess work is necessary while determining
compensation for the land acquired. One has to perceive from the view
point of the prudent purchaser. As the acquisition is of the year 1973, we
do not wish to remit the matter to Reference Court. Having regard to the
totality of the facts and circumstances of the matter, in our considered
opinion, the compensation may be determined relying upon the Sale Deed
dated 19.03.1971 particularly when there is no other reliable material on
record. Since the land under the said Sale Deed dated 19.03.1971 was
valued at a sum of Rs. 2,000/- per bigha, and as the land in question was
acquired in the year 1973, the compensation can be determined by adding 15%
of the value of the sale consideration per year keeping in mind the
escalation in price of the lands day by day. Normally 15% escalation is
taken, per year by this Court in recent times while quantifying
compensation. Thus, the claimants would be entitled to Rs. 2,600/- per
bigha.

9. Accordingly, these appeals are allowed. The compensation is
enhanced from Rs. 2,200/- to Rs. 2,600/- per bigha. It is needless to
state that the claimants are entitled to all the statutory benefits such as
solatium, interest etc. in accordance with law.

10. There shall be no order as to costs.
……………………….J (Dipak
Misra)
……………………………..J
(A.M. Khanwilkar)

………………………J
(Mohan M. Shantanagoudar)

New Delhi
Dated: May 04, 2017

Posted in Uncategorized

Whether the subsequent purchasers/assignees/power of attorney holders, etc., have locus standi to file a petition for a declaration of lapse of acquisition proceedings under Section 24(2) of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as “the 2013 Act”), is the only issue arising for consideration in these cases.=Thus, the subsequent purchaser, the assignee, the successor in interest, the power of attorney, etc., are all persons who are interested in compensation/land owners/affected persons in terms of the 2013 Act and such persons are entitled to file a case for a declaration that the land acquisition proceedings have lapsed by virtue of operation of Section 24(2) of the 2013 Act. It is a declaration qua the land wherein indisputably they have an interest and they are affected by such acquisition. For such a declaration, it cannot be said that the respondents/writ petitioners do not have any locus standi.- In the peculiar facts and circumstances of these cases, the appellants are given a period of six months to exercise its liberty granted under Section 24(2) of the 2013 Act for initiation of the acquisition proceedings afresh.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6112 OF 2017
(Arising out of S.L.P.(C) No. 13551 of 2015)
GOVT. OF NCT OF DELHI … APPELLANT (S)
VERSUS

MANAV DHARAM TRUST AND ANOTHER … RESPONDENT (S)

WITH

CIVIL APPEAL NO. 6113 OF 2017
(Arising out of S.L.P.(C) No.14802 of 2015),

CIVIL APPEAL NO. 6115 OF 2017
(Arising out of S.L.P.(C) No.15451 of 2015),

CIVIL APPEAL NO. 6118 OF 2017
(Arising out of S.L.P.(C) No.15454 of 2015),

CIVIL APPEAL NO. 6120 OF 2017
(Arising out of S.L.P.(C) No.16995 of 2015),

CIVIL APPEAL NO. 6123 OF 2017
(Arising out of S.L.P.(C) No.17006 of 2015),

CIVIL APPEAL NO. 6128 OF 2017
(Arising out of S.L.P.(C) No.17248 of 2015),

CIVIL APPEAL NO. 6131 OF 2017
(Arising out of S.L.P.(C) No.17740 of 2015),

CIVIL APPEAL NO. 6134 OF 2017
(Arising out of S.L.P.(C) No.18480 of 2015),

CIVIL APPEAL NO. 6136 OF 2017
(Arising out of S.L.P.(C) No.18485 of 2015),

CIVIL APPEAL NO. 6138 OF 2017
(Arising out of S.L.P.(C) No.19204 of 2015),

CIVIL APPEAL NO. 6140 OF 2017
(Arising out of S.L.P.(C) No.19452 of 2015),

CIVIL APPEAL NO. 6142 OF 2017
(Arising out of S.L.P.(C) No.19555 of 2015),

CIVIL APPEAL NO. 6146 OF 2017
(Arising out of S.L.P.(C) No.22067 of 2015),

CIVIL APPEAL NO. 6149 OF 2017
(Arising out of S.L.P.(C) No.22069 of 2015),

CIVIL APPEAL NO. 6152 OF 2017
(Arising out of S.L.P.(C) No.22994 of 2015),

CIVIL APPEAL NO. 6156 OF 2017
(Arising out of S.L.P.(C) No.22995 of 2015),

CIVIL APPEAL NO. 6160 OF 2017
(Arising out of S.L.P.(C) No.23742 of 2015),

CIVIL APPEAL NO. 6163 OF 2017
(Arising out of S.L.P.(C) No.24957 of 2015),

CIVIL APPEAL NO. 6164 OF 2017
(Arising out of S.L.P.(C) No.24963 of 2015),

CIVIL APPEAL NO. 6166 OF 2017
(Arising out of S.L.P.(C) No.25524 of 2015),

CIVIL APPEAL NO. 6170 OF 2017
(Arising out of S.L.P.(C) No.26493 of 2015),

CIVIL APPEAL NO. 6173 OF 2017
(Arising out of S.L.P.(C) No.26606 of 2015),

CIVIL APPEAL NO. 6186 OF 2017
(Arising out of S.L.P.(C) No.26724 of 2015),

CIVIL APPEAL NO. 6190 OF 2017
(Arising out of S.L.P.(C) No.27318 of 2015),

CIVIL APPEAL NO. 6194 OF 2017
(Arising out of S.L.P.(C) No.27485 of 2015),

CIVIL APPEAL NO. 6197 OF 2017
(Arising out of S.L.P.(C) No.27729 of 2015),

CIVIL APPEAL NO. 6203 OF 2017
(Arising out of S.L.P.(C) No.28002 of 2015),

CIVIL APPEAL NO. 6206 OF 2017
(Arising out of S.L.P.(C) No.28579 of 2015),

CIVIL APPEAL NO. 6209 OF 2017
(Arising out of S.L.P.(C) No.28745 of 2015),

CIVIL APPEAL NO. 6213 OF 2017
(Arising out of S.L.P.(C) No.28768 of 2015),

CIVIL APPEAL NO. 6216 OF 2017
(Arising out of S.L.P.(C) No.28922 of 2015),

CIVIL APPEAL NO. 6219 OF 2017
(Arising out of S.L.P.(C) No. 28927 of 2015),

CIVIL APPEAL NO. 6224 OF 2017
(Arising out of S.L.P.(C) No. 28929 of 2015),

CIVIL APPEAL NO. 6228 OF 2017
(Arising out of S.L.P.(C) No.29537 of 2015),

CIVIL APPEAL NO. 6233 OF 2017
(Arising out of S.L.P.(C) No. 30148 of 2015),

CIVIL APPEAL NO. 6237 OF 2017
(Arising out of S.L.P.(C) No. 30211 of 2015),

CIVIL APPEAL NO. 6240 OF 2017
(Arising out of S.L.P.(C) No. 30224 of 2015),

CIVIL APPEAL NO. 6242 OF 2017
(Arising out of S.L.P.(C) No.30228 of 2015),

CIVIL APPEAL NO. 6246 OF 2017
(Arising out of S.L.P.(C) No.30234 of 2015),

CIVIL APPEAL NO. 6249 OF 2017
(Arising out of S.L.P.(C) No.30238 of 2015),

CIVIL APPEAL NO. 6260 OF 2017
(Arising out of S.L.P.(C) No.30243 of 2015),

CIVIL APPEAL NO. 6264 OF 2017
(Arising out of S.L.P.(C) No.30244 of 2015),

CIVIL APPEAL NO. 6267 OF 2017
(Arising out of S.L.P.(C) No.30275 of 2015),

CIVIL APPEAL NO. 6270 OF 2017
(Arising out of S.L.P.(C) No.30733 of 2015),

CIVIL APPEAL NO. 6272 OF 2017
(Arising out of S.L.P.(C) No.30734 of 2015),

CIVIL APPEAL NO. 6274 OF 2017
(Arising out of S.L.P.(C) No.30735 of 2015),

CIVIL APPEAL NO. 6276 OF 2017
(Arising out of S.L.P.(C) No.31250 of 2015),

CIVIL APPEAL NO. 6279 OF 2017
(Arising out of S.L.P.(C) No.31366/2015),

CIVIL APPEAL NO. 6281 OF 2017
(Arising out of S.L.P.(C) No.31673 of 2015),

CIVIL APPEAL NO. 6283 OF 2017
(Arising out of S.L.P.(C) No.32614 of 2015),

CIVIL APPEAL NO. 6285 OF 2017
(Arising out of S.L.P.(C) No.32617 of 2015),

CIVIL APPEAL NO. 6287 OF 2017
(Arising out of S.L.P.(C) No.32640 of 2015),

CIVIL APPEAL NO. 6289 OF 2017
(Arising out of S.L.P.(C) No. 32642 of 2015),

CIVIL APPEAL NO. 6291 OF 2017
(Arising out of S.L.P.(C) No.32643 of 2015),

CIVIL APPEAL NO. 6292 OF 2017
(Arising out of S.L.P.(C) No.32645 of 2015),

CIVIL APPEAL NO. 6294 OF 2017
(Arising out of S.L.P.(C) No.32647 of 2015),

CIVIL APPEAL NO. 6296 OF 2017
(Arising out of S.L.P.(C) No.33344 of 2015),

CIVIL APPEAL NO. 6298 OF 2017
(Arising out of S.L.P.(C) No.34619 of 2015),

CIVIL APPEAL NO. 6300 OF 2017
(Arising out of S.L.P.(C) No.35231 of 2015),

CIVIL APPEAL NO. 6302 OF 2017
(Arising out of S.L.P.(C) No.35243 of 2015),

CIVIL APPEAL NO. 6125 OF 2017
(Arising out of S.L.P.(C) No.545 of 2016),

CIVIL APPEAL NO. 6127 OF 2017
(Arising out of S.L.P.(C) No.848 of 2016),

CIVIL APPEAL NO. 6129 OF 2017
(Arising out of S.L.P.(C) No.1686 of 2016),

CIVIL APPEAL NO. 6130 OF 2017
(Arising out of S.L.P.(C) No.1698 of 2016),

CIVIL APPEAL NO. 6132 OF 2017
(Arising out of S.L.P.(C) No.1700 of 2016),

CIVIL APPEAL NO. 6133 OF 2017
(Arising out of S.L.P.(C) No.2070 of 2016),

CIVIL APPEAL NO. 6135 OF 2017
(Arising out of S.L.P.(C) No.2839 of 2016),

CIVIL APPEAL NO. 6137 OF 2017
(Arising out of S.L.P.(C) No.4221 of 2016),

CIVIL APPEAL NO. 6141 OF 2017
(Arising out of S.L.P.(C) No.7016 of 2016),

CIVIL APPEAL NO. 6143 OF 2017
(Arising out of S.L.P.(C) No. 7564 of 2016),

CIVIL APPEAL NO. 6145 OF 2017
(Arising out of S.L.P.(C) No.7568 of 2016),

CIVIL APPEAL NO. 6147 OF 2017
(Arising out of S.L.P.(C) No.7609 of 2016),

CIVIL APPEAL NO. 6150 OF 2017
(Arising out of S.L.P.(C) No.7735 of 2016),

CIVIL APPEAL NO. 6153 OF 2017
(Arising out of S.L.P.(C) No.7761 of 2016),

CIVIL APPEAL NO. 6155 OF 2017
(Arising out of S.L.P.(C) No.8770 of 2016),

CIVIL APPEAL NO. 6157 OF 2017
(Arising out of S.L.P.(C) No.8793 of 2016),

CIVIL APPEAL NO. 6159 OF 2017
(Arising out of S.L.P.(C) No.8798 of 2016),

CIVIL APPEAL NO. 6161 OF 2017
(Arising out of S.L.P.(C) No.8808 of 2016),

CIVIL APPEAL NO. 6167 OF 2017
(Arising out of S.L.P.(C) No.8811 of 2016),

CIVIL APPEAL NO. 6169 OF 2017
(Arising out of S.L.P.(C) No.8812 of 2016),

CIVIL APPEAL NO. 6172 OF 2017
(Arising out of S.L.P.(C) No.8813 of 2016),

CIVIL APPEAL NO. 6175 OF 2017
(Arising out of S.L.P.(C) No.8817 of 2016),

CIVIL APPEAL NO. 6176 OF 2017
(Arising out of S.L.P.(C) No. 8818 of 2016),

CIVIL APPEAL NO. 6178 OF 2017
(Arising out of S.L.P.(C) No.8819 of 2016),

CIVIL APPEAL NO. 6180 OF 2017
(Arising out of S.L.P.(C) No.8820 of 2016),

CIVIL APPEAL NO. 6181 OF 2017
(Arising out of S.L.P.(C) No.8829 of 2016),

CIVIL APPEAL NO. 6182 OF 2017
(Arising out of S.L.P.(C) No.8836 of 2016),

CIVIL APPEAL NO. 6184 OF 2017
(Arising out of S.L.P.(C) No.9061 of 2016),

CIVIL APPEAL NO. 6185 OF 2017
(Arising out of S.L.P.(C) No.9184 of 2016),

CIVIL APPEAL NO. 6187 OF 2017
(Arising out of S.L.P.(C) No.10009 of 2016),

CIVIL APPEAL NO. 6189 OF 2017
(Arising out of S.L.P.(C) No.10495 of 2016),

CIVIL APPEAL NO. 6191 OF 2017
(Arising out of S.L.P.(C) No.11339 of 2016),

CIVIL APPEAL NO. 6193 OF 2017
(Arising out of S.L.P.(C) No.11349 of 2016),

CIVIL APPEAL NO. 6195 OF 2017
(Arising out of S.L.P.(C) No.11356 of 2016),

CIVIL APPEAL NO. 6198 OF 2017
(Arising out of S.L.P.(C) No.11372 of 2016),

CIVIL APPEAL NO. 6200 OF 2017
(Arising out of S.L.P.(C) No.11380/2016),

CIVIL APPEAL NO. 6202 OF 2017
(Arising out of S.L.P.(C) No.11383 of 2016),

CIVIL APPEAL NO. 6205 OF 2017
(Arising out of S.L.P.(C) No.11448 of 2016),

CIVIL APPEAL NO. 6207 OF 2017
(Arising out of S.L.P.(C) No.11458/2016),

CIVIL APPEAL NO. 6210 OF 2017
(Arising out of S.L.P.(C) No.17354 of 2016),

CIVIL APPEAL NO. 6212 OF 2017
(Arising out of S.L.P.(C) No.19966 of 2016),

CIVIL APPEAL NO. 6214 OF 2017
(Arising out of S.L.P.(C) No.19972 of 2016),

CIVIL APPEAL NO. 6217 OF 2017
(Arising out of S.L.P.(C) No.19976 of 2016),

CIVIL APPEAL NO. 6218 OF 2017
(Arising out of S.L.P.(C) No.23083/2016),

CIVIL APPEAL NO. 6221 OF 2017
(Arising out of S.L.P.(C) No.23085/2016),

CIVIL APPEAL NO. 6222 OF 2017
(Arising out of S.L.P.(C) No.23095/2016),

CIVIL APPEAL NO. 6225 OF 2017
(Arising out of S.L.P.(C) No.23642/2016),

CIVIL APPEAL NO. 6227 OF 2017
(Arising out of S.L.P.(C) No.23646/2016),

CIVIL APPEAL NO. 6230 OF 2017
(Arising out of S.L.P.(C) No.23659 of 2016),

CIVIL APPEAL NO. 6231 OF 2017
(Arising out of S.L.P.(C) No.24307 of 2016),

CIVIL APPEAL NO. 6234 OF 2017
(Arising out of S.L.P.(C) No.24313 of 2016),

CIVIL APPEAL NO. 6236 OF 2017
(Arising out of S.L.P.(C) No.24321 of 2016),

CIVIL APPEAL NO. 6239 OF 2017
(Arising out of S.L.P.(C) No.25136 of 2016),

CIVIL APPEAL NO. 6241 OF 2017
(Arising out of S.L.P.(C) No.28183 of 2016),

CIVIL APPEAL NO. 6243 OF 2017
(Arising out of S.L.P.(C) No.28270 of 2016),

CIVIL APPEAL NO. 6245 OF 2017
(Arising out of S.L.P.(C) No.28272 of 2016),

CIVIL APPEAL NO. 6248 OF 2017
(Arising out of S.L.P.(C) No. 28274/2016),

CIVIL APPEAL NO. 6250 OF 2017
(Arising out of S.L.P.(C) No.28279 of 2016),

CIVIL APPEAL NO. 6252 OF 2017
(Arising out of S.L.P.(C) No.28281 of 2016),

CIVIL APPEAL NO. 6253 OF 2017
(Arising out of S.L.P.(C) No.28661 of 2016),

CIVIL APPEAL NO. 6255 OF 2017
(Arising out of S.L.P.(C) No.28668 of 2016),

CIVIL APPEAL NO. 6256 OF 2017
(Arising out of S.L.P.(C) No.30426 of 2016),

CIVIL APPEAL NO. 6259 OF 2017
(Arising out of S.L.P.(C) No.31440 of 2016),

CIVIL APPEAL NO. 6262 OF 2017
(Arising out of S.L.P.(C) No.31442/2016),

CIVIL APPEAL NO. 6263 OF 2017
(Arising out of S.L.P.(C) No.31444 of 2016),

CIVIL APPEAL NO. 6265 OF 2017
(Arising out of S.L.P.(C) No.31480/2016),

CIVIL APPEAL NO. 6266 OF 2017
(Arising out of S.L.P.(C) No.32231 of 2016),

CIVIL APPEAL NO. 6269 OF 2017
(Arising out of S.L.P.(C) No.32996 of 2016),

CIVIL APPEAL NO. 6119 OF 2017
(Arising out of S.L.P.(C) No.35159 of 2016),

CIVIL APPEAL NO. 6121 OF 2017
(Arising out of S.L.P.(C) No.35160 of 2016),

CIVIL APPEAL NO. 6122 OF 2017
(Arising out of S.L.P.(C) No.35163 of 2016),

CIVIL APPEAL NO. 6139 OF 2017
(Arising out of S.L.P.(C) No.36421 of 2016),

CIVIL APPEAL NO. 6144 OF 2017
(Arising out of S.L.P.(C) No.36792 of 2016),

CIVIL APPEAL NO. 6148 OF 2017
(Arising out of S.L.P.(C) No.37159 of 2016),

CIVIL APPEAL NO. 6151 OF 2017
(Arising out of S.L.P.(C) No.37657 of 2016),

CIVIL APPEAL NO. 6154 OF 2017
(Arising out of S.L.P.(C) No.38279 of 2016),

CIVIL APPEAL NO. 6158 OF 2017
(Arising out of S.L.P.(C) No.38283 of 2016),

CIVIL APPEAL NO. 6162 OF 2017
(Arising out of S.L.P.(C) No.38284 of 2016),

CIVIL APPEAL NO. 6168 OF 2017
(Arising out of S.L.P.(C) No.38286 of 2016),

CIVIL APPEAL NO. 6171 OF 2017
(Arising out of S.L.P.(C) No.38292 of 2016),

CIVIL APPEAL NO. 6174 OF 2017
(Arising out of S.L.P.(C) No.38295 of 2016),

CIVIL APPEAL NO. 6177 OF 2017
(Arising out of S.L.P.(C) No.38300 of 2016),

CIVIL APPEAL NO. 6179 OF 2017
(Arising out of S.L.P.(C) No.38303 of 2016),

CIVIL APPEAL NO. 6183 OF 2017
(Arising out of S.L.P.(C) No.38354 of 2016),

CIVIL APPEAL NO. 6188 OF 2017
(Arising out of S.L.P.(C) No.38358 of 2016),

CIVIL APPEAL NO. 6192 OF 2017
(Arising out of S.L.P.(C) No.38364 of 2016),

CIVIL APPEAL NO. 6196 OF 2017
(Arising out of S.L.P.(C) No.38367 of 2016),

CIVIL APPEAL NO. 6199 OF 2017
(Arising out of S.L.P.(C) No.38370 of 2016),

CIVIL APPEAL NO. 6201 OF 2017
(Arising out of S.L.P.(C) No.38373 of 2016),

CIVIL APPEAL NO. 6204 OF 2017
(Arising out of S.L.P.(C) No.1498 of 2017),

CIVIL APPEAL NO. 6208 OF 2017
(Arising out of S.L.P.(C) No.1499 of 2017),

CIVIL APPEAL NO. 6211 OF 2017
(Arising out of S.L.P.(C) No.1639 of 2017),

CIVIL APPEAL NO. 6215 OF 2017
(Arising out of S.L.P.(C) No.1724 of 2017),

CIVIL APPEAL NO. 6220 OF 2017
(Arising out of S.L.P.(C) No.1726 of 2017),

CIVIL APPEAL NO. 6223 OF 2017
(Arising out of S.L.P.(C) No.1728 of 2017),

CIVIL APPEAL NO. 6226 OF 2017
(Arising out of S.L.P.(C) No.1729 of 2017),

CIVIL APPEAL NO. 6229 OF 2017
(Arising out of S.L.P.(C) No.1730 of 2017),

CIVIL APPEAL NO. 6232 OF 2017
(Arising out of S.L.P.(C) No.1731 of 2017),

CIVIL APPEAL NO. 6235 OF 2017
(Arising out of S.L.P.(C) No.3826 of 2017),

CIVIL APPEAL NO. 6238 OF 2017
(Arising out of S.L.P.(C) No.6911 of 2017),

CIVIL APPEAL NO. 6244 OF 2017
(Arising out of S.L.P.(C) No.8928 of 2017),

CIVIL APPEAL NO. 6247 OF 2017
(Arising out of S.L.P.(C) No.8929 of 2017),

CIVIL APPEAL NO. 6251 OF 2017
(Arising out of S.L.P.(C) No.9586 of 2017),

CIVIL APPEAL NO. 6254 OF 2017
(Arising out of S.L.P.(C) No.9734 of 2017),

CIVIL APPEAL NOS. 6257-6258 OF 2017
(Arising out of S.L.P.(C) Nos.10556-10557 of 2017)

CIVIL APPEAL NO. 6261 OF 2017
(Arising out of S.L.P.(C) No.11873 of 2017),

CIVIL APPEAL NO. 6268 OF 2017
(Arising out of S.L.P.(C) No.25536 of 2015),

CIVIL APPEAL NO. 6271 OF 2017
(Arising out of S.L.P.(C) No.38374 of 2016),

CIVIL APPEAL NO. 6273 OF 2017
(Arising out of S.L.P.(C) No.28305 of 2015),

CIVIL APPEAL NO. 6275 OF 2017
(Arising out of S.L.P.(C) No.30167 of 2015),

CIVIL APPEAL NO. 6278 OF 2017
(Arising out of S.L.P.(C) No.30170 of 2015),

CIVIL APPEAL NO. 6280 OF 2017
(Arising out of S.L.P.(C) No.13381 of 2015),

CIVIL APPEAL NO. 6282 OF 2017
(Arising out of S.L.P.(C) No.7731 of 2016),

CIVIL APPEAL NO. 6284 OF 2017
(Arising out of S.L.P.(C) No.7754 of 2016),

CIVIL APPEAL NO. 6286 OF 2017
(Arising out of S.L.P.(C) No.8762 of 2016),

CIVIL APPEAL NO. 6288 OF 2017
(Arising out of S.L.P.(C) No.11404 of 2016),

CIVIL APPEAL NO. 6290 OF 2017
(Arising out of S.L.P.(C) No.11479/2016),

CIVIL APPEAL NO. 6293 OF 2017
(Arising out of S.L.P.(C) No.38296 of 2016),

CIVIL APPEAL NO. 6295 OF 2017
(Arising out of S.L.P.(C) No.38299 of 2016),

CIVIL APPEAL NO. 6297 OF 2017
(Arising out of S.L.P.(C) No.38355 of 2016),

CIVIL APPEAL NO. 6299 OF 2017
(Arising out of S.L.P.(C) No.38360 of 2016)

AND

CIVIL APPEAL NO. 6301 OF 2017
(Arising out of S.L.P.(C) No.38366 of 2016)

J U D G M E N T

KURIAN, J.:

Leave granted.
Whether the subsequent purchasers/assignees/power of attorney holders,
etc., have locus standi to file a petition for a declaration of lapse of
acquisition proceedings under Section 24(2) of The Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (hereinafter referred to as “the 2013 Act”), is the
only issue arising for consideration in these cases.

The High Court has taken the view in favour of such people. Thus, aggrieved
the NCT of Delhi and Delhi Development Authority are in appeals before this
Court.

At the outset, we may note that in these cases, the land acquisition
proceedings have otherwise lapsed by the operation of Section 24(2) of the
2013 Act since either compensation was not paid or possession was not taken
within five years prior to 01.01.2014, the date of coming into force of the
2013 Act. Thus, the dispute is only on the locus standi.
Shri Amarendra Saran, learned Senior Counsel leading the arguments on
behalf of the appellants submits that in all these cases, the transfer is
in violation of The Delhi Lands (Restrictions on Transfer) Act, 1972
(hereinafter referred to as “the Delhi Act, 1972”). The transfers in favour
of the writ petitioners are hence void, and accordingly, the beneficiary of
an illegal/void transaction is not entitled to file a case for any relief.
Reliance is placed on Sections 3,4,8, and 9 of the 1972 Act, which read as
follows:

1 “3. Prohibition on transfer of lands acquired by Central Government –
No person shall purport to transfer by sale, mortgage, gift, lease or
otherwise any land or part thereof situated in the Union territory of Delhi
which has been acquired by the Central Government under the Land
Acquisition Act, 1984 or under any other law providing for acquisition of
land for a public purpose.
2 4. Regulation on transfer of lands in relation to which acquisition
proceedings have been initiated.
No person shall, except with the previous permission in writing of the
competent authority, transfer or purport to transfer by sale, mortgage,
gift, lease or otherwise any land or part thereof situated in the Union
territory of Delhi, which is proposed to be acquired in connection with the
Scheme and in relation to which a declaration to the effect that such land
or part thereof is needed for a public purpose having been made by the
Central Government under section 6 of the Land Acquisition Act, 1894, the
Central Government has not withdrawn from the acquisition under section 48
of that Act.
xxx xxx xxx
3 8. Restrictions on registration of transfers of land –
Notwithstanding any thing contained in any other law for the time being in
force, where any document required to be registered under the provisions of
clause (a) to clause (e) of sub-section (1) of section 17 of the
Registration Act, 1908, purports to transfer by sale, mortgage, gift, lease
or otherwise any land or part thereof referred to in section 4, no
registering officer appointed under that Act shall register any such
document unless the transferor produces before such registering officer a
permission in writing of the competent authority for such transfer.
4 9. Penalty –

If any person contravenes the provisions of section 3 or section 4, he
shall be punishable with imprisonment for a term which may extend to three
years or with fine or with both.”
Learned Senior Counsel and other learned Counsel further submitted that the
issue is no more res integra in view of the following decisions of this
Court:
(i) U.P. Jal Nigam, Lucknow Through Its Chairman and another v. Kalra
Properties (P) Ltd., Lucknow and others[1],

(ii) Sneh Prabha (Smt.) and others v. State of U.P. and another[2],

(iii) Meera Sahni v. Lieutenant Governor of Delhi and others[3],

(iv) V. Chandrasekaran and another v. Administrative Officer and
others[4],

(v) Rajasthan State Industrial Development and Investment
Corporation v. Subhash Sindhi Cooperative Housing Society, Jaipur and
others[5] and
U.P. Jal Nigam, Lucknow (supra), is a case where this Court considered the
consequences of a transfer of the land after issuance of notification under
Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as
“the 1894 Act”) in the State of Uttar Pradesh. It was held that any
encumbrances created by the owner after Section 4(1) Notification is
published, does not bind the Government and such a purchaser does not
acquire any title to the property. Therefore, such a purchaser cannot
challenge the validity of the notification or the regularity of the process
of taking possession of the land. To quote paragraph-3:

“3. … It is settled law that after the notification under Section 4(1) is
published in the Gazette any encumbrance created by the owner does not bind
the Government and the purchaser does not acquire any title to the
property. In this case, notification under Section 4(1) was published on 24-
3-1973, possession of the land admittedly was taken on 5-7-1973 and pumping
station house was constructed. No doubt, declaration under Section 6 was
published later on 8-7-1973. Admittedly power under Section 17(4) was
exercised dispensing with the enquiry under Section 5-A and on service of
the notice under Section 9 possession was taken, since urgency was acute,
viz., pumping station house was to be constructed to drain out flood water.
Consequently, the land stood vested in the State under Section 17(2) free
from all encumbrances. It is further settled law that once possession is
taken, by operation of Section 17(2), the land vests in the State free from
all encumbrances unless a notification under Section 48(1) is published in
the Gazette withdrawing from the acquisition. Section 11-A, as amended by
Act 68 of 1984, therefore, does not apply and the acquisition does not
lapse. The notification under Section 4(1) and the declaration under
Section 6, therefore, remain valid. There is no other provision under the
Act to have the acquired land divested, unless, as stated earlier,
notification under Section 48(1) was published and the possession is
surrendered pursuant thereto. That apart, since M/s Kalra Properties,
respondent had purchased the land after the notification under Section 4(1)
was published, its sale is void against the State and it acquired no right,
title or interest in the land. Consequently, it is settled law that it
cannot challenge the validity of the notification or the regularity in
taking possession of the land before publication of the declaration under
Section 6 was published.”

In Sneh Prabha (supra), this Court reiterated the position that any
alienation of land after the publication of the notification under Section
4(1) of the 1894 Act does not bind the Government or the beneficiary under
the acquisition. It has also been held that once the possession of the land
is taken under Section 16 of the Act, the land vests with the Government
free from all encumbrances and the absolute title is vested in the
Government. To quote from paragraph-5:

“5. … It is settled law that any person who purchases land after
publication of the notification under Section 4(1), does so at his/her own
peril. The object of publication of the notification under Section 4(1) is
notice to everyone that the land is needed or is likely to be needed for
public purpose and the acquisition proceedings point out an impediment to
anyone to encumber the land acquired thereunder. It authorises the
designated officer to enter upon the land to do preliminaries etc.
Therefore, any alienation of land after the publication of the notification
under Section 4(1) does not bind the Government or the beneficiary under
the acquisition. On taking possession of the land, all rights, titles and
interests in land stand vested in the State, under Section 16 of the Act,
free from all encumbrances and thereby absolute title in the land is
acquired thereunder. If any subsequent purchaser acquires land, his/her
only right would be subject to the provisions of the Act and/or to receive
compensation for the land. In a recent judgment, this Court in Union of
India v. Shivkumar Bhargava considered the controversy and held that a
person who purchases land subsequent to the notification is not entitled to
alternative site. It is seen that the Land Policy expressly conferred that
right only on that person whose land was acquired. In other words, the
person must be the owner of the land on the date on which notification
under Section 4(1) was published. By necessary implication, the subsequent
purchaser was elbowed out from the policy and became disentitled to the
benefit of the Land Policy.”
In Meera Sahni (supra), this Court dealt with the provisions under the
Delhi Act, 1972. After referring to U.P. Jal Nigam and Sneh Prabha cases
(supra), in paragraph-21 of the judgment, it was held that … “it is by
now well settled law that under the Land Acquisition Act, the subsequent
purchaser cannot challenge the acquisition proceedings and that he would be
only entitled to get the compensation”.

In V. Chandrasekaran (supra), this Court again addressed the issue as to
whether the subsequent purchaser can challenge the acquisition proceedings.
After referring to some of the earlier judgments, at paragraph-18, the law
has been laid down as follows:

“18. In view of the above, the law on the issue can be summarised to the
effect that a person who purchases land subsequent to the issuance of a
Section 4 notification with respect to it, is not competent to challenge
the validity of the acquisition proceedings on any ground whatsoever, for
the reason that the sale deed executed in his favour does not confer upon
him, any title and at the most he can claim compensation on the basis of
his vendor’s title.”

In Rajasthan State Industrial Development and Investment Corporation
(supra), this Court held that such transactions after initiation of
acquisition proceedings would be void and would not be binding on the
Government. To quote paragraph-13:

“13. There can be no quarrel with respect to the settled legal proposition
that a purchaser, subsequent to the issuance of a Section 4 notification in
respect of the land, cannot challenge the acquisition proceedings, and can
only claim compensation as the sale transaction in such a situation is void
qua the Government. Any such encumbrance created by the owner, or any
transfer of the land in question, that is made after the issuance of such a
notification, would be deemed to be void and would not be binding on the
Government. …”

On behalf of the respondents, it has been mainly contended that the
subsequent purchasers are persons interested and they have every right to
file a case to protect their interests. It was also pointed out that under
the Delhi Act, 1972, there is no absolute bar on transfer since under
Section 5, the transfer was possible with the permission of the Competent
Authority and that under Section 5, the Competent Authority cannot refuse
to grant the permission except on any of the grounds under sub-Section (3)
of Section 5. To quote Section 5:

5 “5. Application for grant of permission for transfer under section 4 –
6 xxxx xxxx xxxx xxxx
(3) The competent authority shall not refuse to grant the permission
applied for under this section except on one or more of the following
grounds, namely:-
(i) That the land is needed or is likely to be needed for the effective
implementation of the Scheme;
(ii) That the land is needed or is likely to be needed for securing the
objects of the Delhi Development Authority referred to in section 6 of the
Development Act;
(iii) That the land is needed or is likely to be needed for any development
within the meaning of clause (d) of section 2 of the Development Act or for
such things as public building and other public works and utilities, roads,
housing, recreation, industry, business, markets, schools and other
educational institutions, hospitals and public open spaces and other
categories of public uses.”
It was also contended that the 2013 Act has not exempted the acquisitions
under The Delhi Development Act, 1957, and for that matter the Delhi Act,
1972 under the Fourth Schedule to Section 105.

Yet another contention was that in all these cases, the challenge was not
to the acquisition proceedings but for a declaration under Section 24(2) of
the 2013 Act to the effect that by virtue of operation of the said
provision, the acquisition proceedings have lapsed.

“Person interested”, under the 1894 Act, is defined under Section 3(b) of
the Act, which reads as follows:

“3(b) the expression “person interested” includes all persons claiming an
interest in compensation to be made on account of the acquisition of land
under this Act; and a person shall be deemed to be interested in land if he
is interested in an easement affecting the land;”
Under the 2013 Act, “person interested” has been given a much wider meaning
under Section 3(x). To quote:
“3(x).     “person interested” means—

all persons claiming an interest in compensation to be made on account of
the acquisition of land under this Act;

the Scheduled Tribes and other traditional forest dwellers, who have lost
any forest rights recognised under the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006;

a person interested in an easement affecting the land;

persons having tenancy rights under the relevant State laws including share-
croppers by whatever name they may be called; and

any person whose primary source of livelihood is likely to be adversely
affected;”

Thus, under the 2013 Act, all persons claiming interest in compensation to
be paid on account of the acquisition of land under the 2013 Act, are
persons interested. Among others, any person whose primary source of
livelihood is likely to be adversely affected is also a person interested.
“Land owner” under the 2013 Act is defined under Section 3(r), which reads
as follows:
“3(r)      “land owner” includes any person,—

whose name is recorded as the owner of the land or building or part
thereof, in the records of the authority concerned; or

any person who is granted forest rights under the Scheduled Tribes and
Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
or under any other law for the time being in force; or

who is entitled to be granted Patta rights on the land under any law of the
State including assigned lands; or

any person who has been declared as such by an order of the court or
Authority;
Thus, among others, a person whose name is recorded as owner of the land or
building or part thereof in the records of the Authority concerned, is a
land owner.

“Affected family” has been defined in the 2013 Act under Section 3(c)
which reads as follows :-

“3(c) ?affected family? includes—
a family whose land or other immovable property has been acquired;
a family which does not own any land but a member or members of such
family may be agricultural labourers, tenants including any form of tenancy
or holding of usufruct right, share-croppers or artisans or who may be
working in the affected area for three years prior to the acquisition of
the land, whose primary source of livelihood stand affected by the
acquisition of land;
the Scheduled Tribes and other traditional forest dwellers who have lost
any of their forest rights recognised under the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of
2007) due to acquisition of land;
family whose primary source of livelihood for three years prior to the
acquisition of the land is dependent on forests or water bodies and
includes gatherers of forest produce, hunters, fisher folk and boatmen and
such livelihood is affected due to acquisition of land;
a member of the family who has been assigned land by the State
Government or the Central Government under any of its schemes and such land
is under acquisition;
a family residing on any land in the urban areas for preceding three
years or more prior to the acquisition of the land or whose primary source
of livelihood for three years prior to the acquisition of the land is
affected by the acquisition of such land;”

This definition of affected family also indicates that even a family
residing in the lands sought to be acquired, be it an owner or not, is an
affected family, and if a family or a person is affected, necessarily, he
has a right to approach the Court to protect his interests.

It is also to be specifically noted that the challenge made by the writ
petitioners in the Miscellaneous Application filed by them is not to the
acquisition or to the regularity of the process of acquisition including
the taking of possession. Their only prayer is for a declaration that the
proceedings qua the land referred to in the Application have lapsed by
virtue of the operation of Section 24(2) of the 2013 Act.

All the decisions cited by the learned Senior Counsel appearing for the
appellants, no doubt, have categorically held that the subsequent
purchasers do not have locus standi to challenge the acquisition
proceedings. But in the present case, the challenge is not to the
acquisition proceeding; it is only for a declaration that the acquisition
proceedings have lapsed in view of the operation of Section 24(2) of the
2013 Act, and therefore, the ratio in those cases has no application to
these cases.

It is one thing to say that there is a challenge to the legality or
propriety or validity of the acquisition proceedings and yet another thing
to say that by virtue of operation of a subsequent legislation, the
acquisition proceedings have lapsed.

In all the decisions cited by the learned Senior Counsel for the
appellants, which we have referred to above, this Court has protected the
rights of the subsequent purchaser to claim compensation, being a person
interested in the compensation, despite holding that they have no locus
standi to challenge the acquisition proceedings.

The 2013 Act has made a sea change in the approach on the acquisition of
land and compensation thereof. The only lapse under the 1894 Act was under
Section 11A where what would lapse is the … “entire proceedings for the
acquisition of land” whereas under Section 24(2) of the 2013 Act, what gets
lapsed is the land acquisition proceedings initiated under the 1894 Act
which has culminated in passing of an award under Section 11 but where
either possession was not taken or compensation was not paid within five
years prior to 01.01.2014. In other words, the land acquisition proceedings
contemplated under Section 24(2) of the 2013 Act would take in both,
payment of compensation and taking of possession within the five year
period prior to 01.01.2014. If either of them is not satisfied, the entire
land acquisition proceedings would lapse under the deeming provision. The
impact of deemed lapse under Section 24(2) is that pervasive. To quote R.F.
Nariman, J. in Delhi Development Authority v. Sukbhir Singh and others[6].
To quote:

“… As is well settled, a deeming fiction is enacted so that a putative
state of affairs must be imagined, the mind not being allowed to boggle at
the logical consequence of such putative state of affairs … In fact,
Section 24(2) uses the expression “deemed to have lapsed” because the
Legislature was cognisant of the fact that, in cases where compensation has
not been paid, and physical possession handed over to the State/vesting has
taken place, after which land acquisition proceedings could be said to have
been ended. …” (Paragraph-27).
Thus, on account of the lapse, the encumbrance created in favour of
the State comes to an end, and resultantly, the impediment to encumber the
land also comes to an end. Even, according to the appellants, the transfers
were illegal and void for the reason that there was an impediment for the
transfer. Once the acquisition proceedings lapse, all impediments cease to
exist.

As we have already noted above, the whole face of land acquisition has
changed by the 2013 Act. Section 105 of the 2013 Act has provided that the
provisions of the Act shall not apply to the enactments specified in the
Fourth Schedule. So far, only 13 Acts have been notified under the Fourth
Schedule. Neither The Delhi Development Act, 1957 nor The Delhi Lands
(Restrictions on Transfers) Act, 1972 is included in the Fourth Schedule.

The main purpose of the 2013 Act is clearly stated in the preamble which
reads as follows :-

“An Act to ensure, in consultation with institutions of local self-
government and Gram Sabhas established under the Constitution, a humane,
participative, informed and transparent process for land acquisition for
industrialisation, development of essential infrastructural facilities and
urbanisation with the least disturbance to the owners of the land and other
affected families and provide just and fair compensation to the affected
families whose land has been acquired or proposed to be acquired or are
affected by such acquisition and make adequate provisions for such affected
persons for their rehabilitation and resettlement and for ensuring that the
cumulative outcome of compulsory acquisition should be that affected
persons become partners in development leading to an improvement in their
post acquisition social and economic status and for matters connected
therewith or incidental thereto.”
There is a clear indication that the Act proposes to protect the interest
of those persons, among others who are affected by the acquisition. The
subsequent purchasers/successors, etc., in the cases before us, are all
people affected by the acquisition, and therefore, also they are entitled
to seek a declaration on lapse under the 2013 Act.
The High Court of Karnataka at Bengaluru in Suryaprakash and others v.
State of Karnataka and others[7] has considered a situation of lapse and
locus standi of the subsequent purchaser to file a writ petition for a
declaration on lapse, though not under Section 24(2) of the 2013 Act. At
paragraph-16, it has been held:
“16. … the principle that transferee of land after the publication of
preliminary notification cannot maintain a writ petition challenging the
acquisition, cannot be made applicable to a case where the acquisition
itself has been abandoned and has stood lapsed due to efflux of time on
account of the omission and inaction on the part of the acquiring
authority, particularly because, it is because of the lapse of time and the
abandonment of the acquisition, right accrues to the original owner to deal
with his property including by way of the sale and the purchaser will
acquire right to protect his interest. Hence, the judgment in the case of
Rajasthan State Industrial Development and Investment Corporation v.
Subhash Sindhi Cooperative Housing Society, Jaipur and others (2013) 5 SCC
427, will have no application to the facts of the present case.”
We are of the view that this decision, in principle, applies to the
facts of these appeals as well.
Thus, the subsequent purchaser, the assignee, the successor in interest,
the power of attorney, etc., are all persons who are interested in
compensation/land owners/affected persons in terms of the 2013 Act and such
persons are entitled to file a case for a declaration that the land
acquisition proceedings have lapsed by virtue of operation of Section 24(2)
of the 2013 Act. It is a declaration qua the land wherein indisputably they
have an interest and they are affected by such acquisition. For such a
declaration, it cannot be said that the respondents/writ petitioners do not
have any locus standi.

Thus, we do not find any merit in these appeals and they are accordingly
dismissed. All Interlocutory Applications for Impleadment and Intervention,
other than those by Legal Representatives, are also rejected. Applications
for Impleadment of Legal Representatives are allowed. There shall be no
order as to costs.

In the peculiar facts and circumstances of these cases, the appellants are
given a period of six months to exercise its liberty granted under Section
24(2) of the 2013 Act for initiation of the acquisition proceedings afresh.

We make it clear that we have not gone into the inter se disputes between
the parties in some cases or other claims regarding the ownership.
…………………..J.
(KURIAN JOSEPH)

.……………………J.
(R. BANUMATHI)

New Delhi;
May 4, 2017.
———————–
[1]

(1996) 3 SCC 124
[2] (1996) 7 SCC 426
[3] (2008) 9 SCC 177
[4] (2012) 12 SCC 133
[5] (2013) 5 SCC 427
[6] (2016) 8 SCALE 655
[7] MANU/KA/3319/2016 (Writ Petition No. 10286-291 of 2014, decided on
05.12.2016).
———————–
REPORTABLE

———————–
33

Posted in Uncategorized

failed to appreciate = but not discussed as to why their testimony as to the fact that married sister-in-law (of the deceased) and her husband used to live in village Sabutar, is not believed. – we find that both the courts below have erred in law in holding that the charge under Section 304B read with Section 34 IPC stood proved as against the present appellants. In our opinion, in view of the evidence discussed above, it cannot be said that it is proved beyond reasonable doubt that the present appellants, who are sister-in-law and brother-in-law of the deceased, tortured the victim for any demand of dowry. In our opinion, in the present case which is based on circumstantial evidence it cannot be said that appellants had any common intention with the husband of the deceased in commission of the crime. It is sufficiently shown on the record that they used to live in a different village. Therefore, we are inclined to allow the present appeal. Accordingly, this appeal is allowed, and conviction and sentence recorded as against the present appellants Bibi Parwana Khatoon @ Parwana Khatoon and Md. Hasan @ Hasan Raja is set aside.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURSIDICTION

CRIMINAL APPEAL NO. 888 OF 2017
(Arising out of S.L.P. (Crl.) No. 6630 of 2016)
Bibi Parwana Khatoon @
Parwana Khatoon and another … Appellants

Versus

State of Bihar …Respondent

J U D G M E N T
Prafulla C. Pant, J.
Leave granted.

2. The appellants, who are sister-in-law and brother-in-law of the
deceased, have challenged the judgment and order dated 09.12.2016 passed by
the High Court of Judicature at Patna in Criminal Appeal (SJ) No. 48 of
2014 whereby said Court has dismissed the criminal appeal affirming their
conviction and sentence under Section 304B read with Section 34 of Indian
Penal Code (IPC) recorded by the Ad hoc Additional District Judge, Purnea
in Sessions Trial No. 1219 of 2010 (with Sessions Trial No. 617 of 2011).

3. Prosecution story, in brief, is that Tamkinat Ara @ Bulbul got
married to Md. Parwez Alam on 30.09.2009 and she used to live in her in-
laws’ house. The prosecution case is that after her marriage deceased used
to live with Md. Parwez Alam (husband), Abdul Gaffar (father-in-law),
Baitun Nisha (mother-in-law), Bibi Parwana Khatoon (sister of husband) and
her husband Md. Hasan (both appellants). It is alleged by the informant
Md. Faisal PW-5 (brother of the deceased) that the deceased was killed by
setting her on fire by all the above accused. On receiving telephonic
information on 30.05.2010 from father-in-law of the deceased, PW-5 Md.
Faisal went to see his sister and found that she had died of burn injuries.
On the basis of First Information Report given by Md. Faisal Crime Case
No. 184 of 2010 was registered relating to offence punishable under Section
304B read with Section 34 IPC against all the five accused at Police
Station Khajanchi Hat, Madhubani. PW-7 Arti Kumari Jaiswal, Station House
Officer, started investigation. Dead body of the deceased was sealed and
sent for post mortem examination. PW-6 Dr. Umesh Kumar of Sadar Hospital,
Purnea, conducted post mortem examination on the dead body of Tamkinat Ara
and found following ante mortem injuries: –
“(i) Rigor mortis present in all four limbs and trunk

(ii) Tongue was protruded between teeth

(iii) Burned (burnt) blood clot from/in ear opening

(iv) 100% burn of five degree with smell. Key oil and roasted smell, line
of redness along burn area absent, vesication and sign of inflammation was
absent, formation of granulation tissue absent, indicating post mortem
burnt.”

The Medical Officer opined that the deceased died of asphyxia due to
strangulation.

4. Later, investigation was taken over by PW-8 Lal Babu Prasad who
submitted charge sheet against all the five accused. Accused Baitun Nisha
(mother-in-law of the deceased) died during the course of trial, as such,
case as against her stood abated and the trial court proceeded against
remaining four accused.

5. After framing charge against the accused, the trial court recorded
the evidence of PW-1 Syed Masuf Ahmad, PW-2 Md. Azam Rad, PW-3 Samim
Akhtar, PW-4 Taleba Kauser (brother of the deceased), PW-5 Md. Faisal
(brother of the deceased and informant), PW-6 Dr. Umesh Kumar (who
conducted post mortem examination), PW-7 Arti Kumari Jaiswal (who started
investigation) and PW-8 Lal Babu Prasad (who concluded the investigation).

6. The prosecution evidence appears to have been put to the accused
under Section 313 of Criminal Procedure Code whereafter, on behalf of the
accused, defence evidence was adduced, and DW-1 Md. Mozammil Hussain, DW-2
Md. Shamim, DW-3 Manish Kumar Srivastava, DW-4 Raghunandan Yadav, DW-5
Rahul Kumar, DW-6 Mukesh Kumar, DW-7 Nakir Yadav, DW-8 Dhani Yadav, DW-9
Md. Jasir and DW-10 Sanni Yadav, were got examined.

7. The trial court, after hearing the parties, found all the four
accused guilty of offence punishable under Section 304B read with Section
34 IPC, and convicted them accordingly. Md. Parwez Alam (husband of the
deceased) was sentenced to rigorous imprisonment for ten years, and each
one of the remaining three convicts was sentenced to seven years rigorous
imprisonment.

8. Aggrieved by the judgment and order dated 19.11.2013/ 26.11.2013,
passed by the trial court in Sessions Trial No. 1219 of 2010 (with Sessions
Trial No. 617 of 2011), whereby the accused were convicted and sentenced,
as above, three appeals were filed before the High Court. Criminal Appeal
(SJ) No. 59 of 2014 was filed by Md. Parwez Alam (husband of the deceased),
Criminal Appeal (SJ) No. 20 of 2014 was filed by Abdul Gaffar (father-in-
law of the deceased) and Criminal Appeal (SJ) No. 48 of 2014 was filed by
present appellants Bibi Parwana Khatoon and Md. Hasan. The High Court,
after hearing the parties, allowed the appeal of father-in-law of the
deceased but maintained the conviction and sentence recorded against other
three. Hence, this appeal through special leave by sister-in-law Parwana
Khatoon and brother-in-law Md. Hasan.

9. Our attention is drawn on behalf of the appellants to the testimony
of the defence witnesses relating to the fact that they were not residing
in Kali Prasad Tola, and it is argued that the courts below have failed to
appreciate the same. It is also pointed out that there is no special role
assigned to the appellants in the First Information Report.

10. DW-1 Md. Mozammil Hussain, cousin of husband of the deceased, has
stated that Parwana Khatoon and Md. Hasan used to live in village Sabutar,
and on the day of the incident they were not in village Kali Prasad Tola,
Madhubani, i.e. the place where the deceased and her husband used to live.
DW-4 Raghunandan Yadav, who is resident of Kali Prasad Tola, has also
stated that the present appellants used to live in village Sabutar
(Purnea). This witness belongs to village Sabutar. DW-7 Nakir Yadav also
corroborated the fact that Parwana and her husband Hasan used to live in
Sabutar. This fact is further corroborated by DW-8 Dhani Yadav, DW-9 Md.
Jasir and DW-10 Sanni Yadav, all neighbours of the deceased and her
husband.

11. We have gone through the judgment and order passed by the trial court
(copy Annexure P-9) in which the trial court has mentioned the name of
defence witnesses but not discussed as to why their testimony as to the
fact that married sister-in-law (of the deceased) and her husband used to
live in village Sabutar, is not believed. The High Court has also
committed the same error.

12. Apart from the above, in support of their plea, there are three
documents filed on behalf of the appellants, which are copies of public
documents, to show that they are residents of village Sabutar in District
Purnea. Copy of the Residence Certificate is Annexure A-1, which shows
that Sub Divisional Officer, Sadar, Purnea, has certified on 31.10.2008
that Hasan Raja (appellant No. 2) used to live in village Sabutar, P.S. K.
Nagar, District Purnea. Another document (Annexure A-2) is copy of PAN
issued by Income-tax Department of Government of India, which appears to
have been sent on the address of the account holder Parwana Khatoon
(appellant No. 1) on her address of Sabutar, Purnea, Pin Code 854205. Not
only this, copy of service book (Annexure A-3) of appellant No. 1 Parwana
Khatoon shows that she was Panchayat teacher in primary school, K. Nagar
(Purnea). This document also shows that address of appellant No. 1 is
village Sabutar, P.O. Kajha, Police Station K. Nagar, District Purnea. All
these public documents read with the oral testimony adduced before the
trial court, create serious doubt in the prosecution story, so far it
relates as against the present appellants. (We are not commenting on the
evidence as against the husband of the deceased.)

13. In view of the above discussion of oral and documentary evidence, we
find that both the courts below have erred in law in holding that the
charge under Section 304B read with Section 34 IPC stood proved as against
the present appellants. In our opinion, in view of the evidence discussed
above, it cannot be said that it is proved beyond reasonable doubt that the
present appellants, who are sister-in-law and brother-in-law of the
deceased, tortured the victim for any demand of dowry. In our opinion, in
the present case which is based on circumstantial evidence it cannot be
said that appellants had any common intention with the husband of the
deceased in commission of the crime. It is sufficiently shown on the record
that they used to live in a different village. Therefore, we are inclined
to allow the present appeal.

14. Accordingly, this appeal is allowed, and conviction and sentence
recorded as against the present appellants Bibi Parwana Khatoon @ Parwana
Khatoon and Md. Hasan @ Hasan Raja is set aside. They are acquitted of
charge of offence punishable under Section 304B read with Section 34 IPC.
They are in jail. They shall be released forthwith if not required in
connection with any other crime.
………………………..…….J.
[N.V. Ramana]

………………………..…….J.
[Prafulla C. Pant]
New Delhi;
May 04, 2017.

Posted in Uncategorized

the Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986 (for short, the ‘Act of 1986’).= the detention order in this case is vitiated by taking into account incidents so far back in the past as would have no bearing on the immediate need to detain him without a trial. The satisfaction of the authority is not in respect of the thing in regard to which it is required to be satisfied. Incidents which are stale, cease to have relevance to the subject matter of the enquiry and must be treated as extraneous to the scope and purpose of the statute.- The influence of the stale incidents in the detention order is too pernicious to be ignored, and the order must therefore go; both on account of being vitiated due to malice in law and for taking into account matters which ought not to have been taken into account There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-2003. The detenu could not have been detained preventively by taking this stale incident into account, more so when he was in jail.- In Ramesh Yadav v. District Magistrate, Etah and Ors.[9], this Court observed as follows:- “6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” – Therefore, in the facts and circumstances of this case, we allow this appeal, and set aside the aforesaid detention order dated 23.11.2016 passed by the Respondent No.2 – Commissioner of Police, Rachakonda Commissionerate, Rangareddy District, Telangana, as also the impugned judgment and order dated 22.03.2017 passed by the High Court of Judicature at Hyderabad in Writ Petition No.43671 of 2016.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 885 OF 2017
SAMA ARUNA ….APPELLANT(S)
VERSUS
STATE OF TELANGANA AND ANR …RESPONDENT(S)
J U D G M E N T

S.A.BOBDE, J.
The appellant – the wife of the detenu, has preferred this
appeal against the impugned judgment and order dated 22.03.2017 passed by
the High Court of Hyderabad in Writ Petition No.43671 of 2016, whereby the
High Court dismissed the writ petition challenging the order of detention
dated 23.11.2016, issued against the detenu by Respondent No.2–Commissioner
of Police, Rachakonda Commissionerate, Rangareddy District, Telangana.
2. The detenu has been charged for various offences which he had
allegedly committed during the years 2002-2007. Four FIR’s were registered
for the said offences. He was admitted to bail in three FIR’s. In the
fourth FIR Crime No. 221 of 2016, he was arrested on 05.09.2016. To prevent
him from seeking bail, while in judicial custody he was detained under the
Telangana Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug
Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986
(for short, the ‘Act of 1986’).
3. The Respondent No.2 – Commissioner of Police, Rachakonda
Commissionerate, Rangareddy District, Telangana, passed an order of
detention against the detenu on 23.11.2016 under section 3(2) of the Act of
1986, for a unspecified period, from the date of service of the order on
the detenu, and further directed that the detenu be lodged in Central
Prison, Chenchalguda, Hyderabad.
4. The aforesaid detention order was accompanied by grounds for
detention of the same date. The grounds in the detention order carried a
statement informing the detenu of his right to represent against the order
of detention to (i) the detaining authority i.e. Commissioner of Police,
Rachakonda, (ii) the Chief Secretary to Government of Telangana State,
Hyderabad, (iii) the Advisory Board.
5. The Respondent No.1 – State approved the aforesaid detention
order on 01.12.2016 under section 3(3) of the Act of 1986. The Advisory
Board reviewed the case on 02.01.2017 and opined that “there is sufficient
cause for the detention of Sama Sanjeeva Reddy”. After the report of the
Advisory Board, the respondent-State confirmed the detention order on
15.02.2017. Being aggrieved, the appellant- the wife approached the High
Court by filing a writ petition which was dismissed. Hence, this appeal.
6. The main contention of Mr. Vikas Singh, learned Senior Counsel
appearing for the appellant, is that the grounds of detention are stale.
They are based on the incidents which are said to have occurred between the
period from 2002 to 2007 and are relied on by the detaining authority while
forming its opinion and recording its satisfaction that the detenu needs to
be detained on 23.11.2016.
7. The aforesaid contention of Mr. Singh, learned Senior Counsel
for the appellant, may be examined with reference to the detention order.
The detention order mentions six cases as follows:
|Sl. |Case No. |Date of |Date of |Offences under IPC |
|No. | |Incident |Reporting the| |
| | | |incident | |
|1. |Crime No.554/2013 |26.9.2013 |21.11.2013 |447, 427, 506 |
|2. |Crime No.8/2014 |21.11.2014 |23.11.2015 |447, 427 |
|3. |Crime No.361/2016 |2007 |13.08.2016 |363, 384, 420,120B,|
| | | | |Section 4 of AP LG |
| | | | |Act and 25 1(B) of |
| | | | |the Arms Act. |
|4. |Crime No.362/2016 |2007 |13.08.2016 |363, 384, 420,120B,|
| | | | |Section 4 of AP LG |
| | | | |Act and 25 1(B) of |
| | | | |the Arms Act. |
|5. |Crime No.367/2016 |2005 |17.08.2016 |363, 384, 420,120B,|
| | | | |Section 4 of AP LG |
| | | | |Act and 25 1(B) of |
| | | | |the Arms Act. |
|6. |Crime No.221/2016 |2002-03 |05.09.2016 |419, 420, 468, 363,|
| | | | |452, 323, 342, 386,|
| | | | |505 r/w 120B, |
| | | | |Section 4 of AP LG |
| | | | |Act and 25 1(B) of |
| | | | |the Arms Act. |

8. The first two incidents are about three to two years before the
detention order dated 23.11.2016. The other incidents are about 9 to 14
years before the detention order. Peculiarly, though the first two
incidents are mentioned, the detaining authority has not relied on them as
grounds of detention. The detaining authority has relied on the four other
cases which are item nos.3 to 6 as grounds of detention. The report in
these cases was apparently lodged in the year 2016 for some reason best
known to the police. However, that is not of much consequence since the FIR
is in respect of incidents which are old, 9 to 14 years old. It is their
relevance to a grossly belated order of detention which we have to
consider.
9. The detaining authority has pointedly referred to only four
offences of criminal conspiracy, cheating, kidnapping and extortion, in the
limits of Pahadishareef Police Station and Adibatla Police Station of
Rachakonda Commissionerate. In three out of these four cases he has been
granted bail. The State accepted these orders.
10. Each of them are beyond 9 years, up to 14 years, before the
detention orders. They have been considered under a sub-heading which is as
follows:
“THE FOLLOWING FACTS OF THE (4) CASES CONSIDERED AS GROUNDS FOR DETENTION
WHICH WERE COMMITTED BY YOU IN THE RECENT PAST, WOULD PROVE YOUR ACTIVITY
PREJUDICIAL TO THE MAINTENANCE OF PUBLIC ORDER.”

11. The detaining authority has then gone to consider those
grounds, to arrive at the satisfaction that the detenu needs to be detained
in 2016. These grounds are so stale and mildewed that the exercise of the
power of detention based on them appears mala fide in law.
12. The four cases which are old and therefore, stale, pertain to
the period from 2002 to 2007. They pertain to land grabbing and hence, we
are not inclined to consider the impact of those cases on public order etc.
We are satisfied that they ought to have been excluded from consideration
on the ground that they are stale and could not have been used to detain
the detenu in the year 2016 under the Act of 1986 which empowers the
detaining authority to do so with a view to prevent a person from acting in
any manner prejudicial to the maintenance of public order.
13. We are not inclined to accept the justification offered by Mr.
Harin P. Raval, learned Senior Counsel appearing on behalf of the
respondents, that the mere reference to two other cases which are 2-3 years
old should be considered as relevant and proximate grounds of detention,
though the detaining authority itself has not done so. Every statement in
the detention order must be taken to have been made responsibly. Where the
detaining authority has detailed 4 cases and stated that these have been
considered as the grounds of detention it must be considered as true-
speaking. Moreover, those incidents appeared to be cases of ordinary
criminal trespass which would not, in any way, be of much significance
since they do not deal with the disruption of any public order which is
relevant under the law dealing with preventive detention.

14. Section 3(1) confers the power of detention in the following
terms:-
“3(1). The Government may, if satisfied with respect to any boot-
legger, dacoit, drug-offender, goonda, immoral traffic offender or land-
grabber that with a view to preventing him from acting in any manner
prejudicial to the maintenance of public order, it is necessary so to do,
make an order directing that such person be detained.”

The purpose for which a detention order may be passed is confined to
‘preventing him from acting in any manner prejudicial to the maintenance of
public order’.
The term “acting in any manner prejudicial to the maintenance of public
order” is further defined as follows:-
“2. In this Act, unless the context otherwise requires,-
(a) “acting in any manner prejudicial to the maintenance of public order”
means when a bootlegger, a dacoit, a drug-offender, a goonda, an immoral
traffic offender or a land-grabber is engaged or is making preparations for
engaging, in any of his activities as such, which affect adversely, or are
likely to affect adversely, the maintenance of public order:

Explanation:- For the purpose of this clause public order shall be deemed
to have been affected adversely, or shall be deemed likely to be affected
adversely inter alia, if any of the activities of any of the persons
referred to in this clause directly, or indirectly, is causing or
calculated to cause any harm, danger or alarm or a feeling of insecurity
among the general public or any section thereof or a grave wide spread
danger to life or public health:”
A person may be detained under the Act of 1986 with a view to prevent him
from engaging in, or making preparations for engaging, in any such
activities.
15. Obviously, therefore, the power to detain, under the Act of
1986 can be exercised only for preventing a person from engaging in, or
pursuing or taking some action which adversely affects or is likely to
affect adversely the maintenance of public order; or for preventing him
from making preparations for engaging in such activities. There is little
doubt that the conduct or activities of the detenu in the past must be
taken into account for coming to the conclusion that he is going to engage
in or make preparations for engaging in such activities, for many such
persons follow a pattern of criminal activities. But the question is how
far back? There is no doubt that only activities so far back can be
considered as furnish a cause for preventive detention in the present.
That is, only those activities so far back in the past which lead to the
conclusion that he is likely to engage in or prepare to engage in such
activities in the immediate future can be taken into account. In Golam
Hussain alias Gama v. Commissioner of Police, Calcutta and Ors.[1], this
Court observed as follows:-
“No authority, acting rationally, can be satisfied,
subjectively or otherwise, of future mischief merely because long ago the
detenu had done something evil. To rule otherwise is to sanction a
simulacrum of a statutory requirement. But no mechanical test by counting
the months of the interval is sound. It all depends on the nature of the
acts relied on, grave and determined or less serious and corrigible, on the
length of the gap, short or long, on the reason for the delay in taking
preventive action, like information of participation being available only
in the course of an investigation. We have to investigate whether the
causal connection has been broken in the circumstances of each case.”

Suffice it to say that in any case, incidents which are said to have taken
place nine to fourteen years earlier, cannot form the basis for being
satisfied in the present that the detenu is going to engage in, or make
preparation for engaging in such activities.
16. We are, therefore, satisfied that the aforesaid detention order
was passed on grounds which are stale and which could not have been
considered as relevant for arriving at the subjective satisfaction that the
detenu must be detained. The detention order must be based on a reasonable
prognosis of the future behavior of a person based on his past conduct in
light of the surrounding circumstances. The live and proximate link that
must exist between the past conduct of a person and the imperative need to
detain him must be taken to have been snapped in this case. A detention
order which is founded on stale incidents, must be regarded as an order of
punishment for a crime, passed without a trial, though purporting to be an
order of preventive detention. The essential concept of preventive
detention is that the detention of a person is not to punish him for
something he has done but to prevent him from doing it. See G. Reddeiah v.
Government of Andhra Pradesh and Anr.[2] , and P.U. Iqbal v. Union of
India and Ors.[3]

THE SCOPE OF JUDICIAL REVIEW
17. While reviewing a detention order, a court does not substitute
its judgment for the decision of the executive. Nonetheless, the Court has
a duty to enquire that the decision of the executive is made upon matters
laid down by the statute as relevant for reaching such a decision. For
what is at stake, is the personal liberty of a citizen guaranteed to him by
the Constitution and of which he cannot be deprived, except for reasons
laid down by the law and for a purpose sanctioned by law. As early as in
Machinder Shivaji v. The King[4], this Court observed:-
“…… and it would be a serious derogation from that responsibility if
the Court were to substitute its judgment for the satisfaction of the
executive authority and, to that end, undertake an investigation of the
sufficiency of the materials on which such satisfaction was grounded.
The Court can, however, examine the grounds disclosed by the
Government to see if they are relevant to the object which the legislation
has in view, namely, the prevention of acts prejudicial to public safety
and tranquility, for “satisfaction” in this connection must be grounded on
material which is of rationally probative value.”

Later, in the case of Khudiram Das vs. The State of West Bengal and
Others[5], while considering the judicial reviewability of the subjective
satisfaction of the detaining authority, the Court surveyed the area within
which the validity of the subjective satisfaction can be subjected to
judicial scrutiny in the following paragraphs:-
“9. …… There are several grounds evolved by judicial decisions for saying
that no subjective satisfaction is arrived at by the authority as required
under the statute. The simplest case is whether the authority has not
applied its mind at all; in such a case the authority could not possibly be
satisfied as regards the fact in respect of which it is required to be
satisfied. Emperor v. Shibnath Banerji is a case in point. Then there may
be a case where the power is exercised dishonestly or for an improper
purpose: such a case would also negative the existence of satisfaction on
the part of the authority. The existence of ‘Improper purpose’, that is, a
purpose not contemplated by the statute, has been recognised as an
independent ground of control in several decided cases. The satisfaction,
moreover, must be a satisfaction of the authority itself, and therefore, if
in exercising the power, the authority has acted under the dictation of
another body as the Commissioner of Police did in Commissioner of Police v.
Gordhandas Bhanji and the officer of the Ministry of Labour and National
Service did in Simms Motor Units Ltd. v. Minister of Labour and National
Service, the exercise of the power would be bad and so also would the
exercise of the power be vitiated where the authority has disabled itself
from applying its mind to the facts of each individual case by self-created
rules of policy or in any other manner. The satisfaction said to have been
arrived at by the authority would also be bad where it is based on the
application of a wrong test or the misconstruction of a statute. Where this
happens, the satisfaction of the authority would not be in respect of the
thing in regard to which it is required to be satisfied. Then again the
satisfaction must be grounded ‘on materials which are of rationally
probative value’. Machinder v. King. The grounds on which the satisfaction
is based must be such as a rational human being can consider connected with
the fact in respect of which the satisfaction is to be reached. They must
be relevant to the subject-matter of the inquiry and must not be extraneous
to the scope and purpose of the statute. If the authority has taken into
account, it may even be with the best of intention, as a relevant factor
something which it could not properly take into account in deciding whether
or not to exercise the power or the manner or extent to which it should be
exercised, the exercise of the power would be bad.”

18. This Court then dealt with the review of administrative
findings which are not supported with substantial evidence in the following
paragraphs of Khudiram Das (supra):-

“10. …… But in England and in India, the courts stop-short at merely
inquiring whether the grounds on which the authority has reached its
subjective satisfaction are such that any reasonable person could possibly
arrive at such satisfaction. “If”, to use the words of Lord Greene, M. R.,
in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation
words which have found approval of the House of Lords in Smith v. Rest
Eller Rural District Council and Fawcett Properties Ltd. v. Buckingham
County Council – ‘the authority has come to a conclusion so unreasonable
that no reasonable authority could ever have come to it, then the courts
can interfere”. In such a case, a legitimate inference may fairly be drawn
either that the authority “did not honestly form that view or that in
forming it, he could not have applied his mind to the relevant facts’…….

11. This discussion is sufficient to show that there is nothing like
unfettered discretion immune from judicial reviewability. The truth is that
in a Government under law, there can be no such thing as unreviewable
discretion. “Law has reached its finest moments”, said Justice Douglas,
“when it has freed man from the unlimited discretion of some ruler,
some…official, some bureaucrat…. Absolute discretion is a ruthless
master. It is more destructive of freedom then any of man’s other
inventions”. United States v. Wunderlich and this is much more so in a case
where personal liberty is involved. That is why the courts have devised
various methods of judicial control so that power in the hands of an
individual officer or authority is not misused or abused or exercised
arbitrarily or without any justifiable grounds.”
19. Incidents which are old and stale and in which the detenu has
been granted bail, cannot be said to have any relevance for detaining a
citizen and depriving him of his liberty without a trial. This Court
observed the following in the case of Khudiram Das (Supra):
“The grounds on which the satisfaction is based must be such as
a rational human being can consider connected with the fact in respect of
which the satisfaction is to be reached. They must be relevant to the
subject-matter of the inquiry and must not be extraneous to the scope and
purpose of the statute. If the authority has taken into account, it may
even be with the best of intention, as a relevant factor something which it
could not properly take into account in deciding whether or not to exercise
the power or the manner or extent to which it should be exercised, the
exercise of the power would be bad. Partap Singh v. State of Punjab. If
there are to be found in the statute expressly or by implication matters
which the authority ought to have regard to them, in exercising the power,
the authority must have regard to those matters. The authority must call
its attention to the matters which it is bound to consider.”

20. We are of the view, that the detention order in this case is
vitiated by taking into account incidents so far back in the past as would
have no bearing on the immediate need to detain him without a trial. The
satisfaction of the authority is not in respect of the thing in regard to
which it is required to be satisfied. Incidents which are stale, cease to
have relevance to the subject matter of the enquiry and must be treated as
extraneous to the scope and purpose of the statute.
21. In this case, we find the authority has come to a conclusion so
unreasonable that no reasonable authority could ever reach. A detaining
authority must be taken to know both, the purpose and the procedure of law.
It is no answer to say that the authority was satisfied. In T.A. Abdul
Rahman v. State of Kerela and Ors.[6], this Court observed, where the
authority takes into account stale incidents which have gone by to seed it
would be safe to infer that the satisfaction of the authority is not a
genuine one.
The extent of staleness of grounds in this case compel us to examine
the aspect of malice in law. It is not necessary to say that there was an
actual malicious intent in making a wrong detention order. In Smt. S.R.
Venkataraman v. Union of India and Anr.[7], this Court cited Shearer v.
Shields[8], where Viscount Haldane observed as follows:-
“A person who inflicts an injury upon another person in
contravention of law is not allowed to say that he did so with an innocent
mind; he is taken to know the law, and he must act within the law. He may,
therefore, be guilty of malice in law, although, so far the state of his
mind is concerned, he acts ignorantly and in that sense innocently.”

22. This Court then went on to observe in Smt. S.R. Venkataraman
(supra) as follows:-
“6. It is however not necessary to examine the question of malice in law in
this case, for it is trite law that if a discretionary power has been
exercised for an unauthorised purpose, it is generally immaterial whether
its repository was acting in good faith or in bad faith. As was stated by
Lord Goddard. C.J. in Pilling v. Abergele Urban District Council where a
duty to determine a question is conferred on an authority which state their
reasons for the decision,
and the reasons which they state show that they have taken into account
matters which they ought not to have taken into account, or that they have
failed to take matters into account which they ought to have taken into
account, the court to which an appeal lies can and ought to adjudicate on
the matter.

7. The principle which is applicable in such cases has thus been stated by
Lord Esher, M.R. in The Queen on the Prosecution of Richard Westbrook v.
The Vestry of St. Pancras:
“If people who have to exercise a public duty by exercising their
discretion take into account matters which the Courts consider not to be
proper for the guidance of their discretion, then in the eye of the law
they have not exercised their discretion.”
This view has been followed in Sadler v. Sheffield Corporation.”

23. The influence of the stale incidents in the detention order is
too pernicious to be ignored, and the order must therefore go; both on
account of being vitiated due to malice in law and for taking into account
matters which ought not to have been taken into account.
24. There is another reason why the detention order is unjustified.
It was passed when the accused was in jail in Crime No. 221 of 2016. His
custody in jail for the said offence was converted into custody under the
impugned detention order. The incident involved in this offence is
sometime in the year 2002-2003. The detenu could not have been detained
preventively by taking this stale incident into account, more so when he
was in jail. In Ramesh Yadav v. District Magistrate, Etah and Ors.[9], this
Court observed as follows:-
“6. On a reading of the grounds, particularly the paragraph which we
have extracted above, it is clear that the order of detention was passed as
the detaining authority was apprehensive that in case the detenu was
released on bail he would again carry on his criminal activities in the
area. If the apprehension of the detaining authority was true, the bail
application had to be opposed and in case bail was granted, challenge
against that order in the higher forum had to be raised. Merely on the
ground that an accused in detention as an under-trial prisoner was likely
to get bail an order of detention under the National Security Act should
not ordinarily be passed.”

25. Therefore, in the facts and circumstances of this case, we
allow this appeal, and set aside the aforesaid detention order dated
23.11.2016 passed by the Respondent No.2 – Commissioner of Police,
Rachakonda Commissionerate, Rangareddy District, Telangana, as also the
impugned judgment and order dated 22.03.2017 passed by the High Court of
Judicature at Hyderabad in Writ Petition No.43671 of 2016.
………………..J
[S. A. BOBDE]

………………..J
[L. NAGESWARA RAO]
NEW DELHI
MAY 03, 2017
———————–
[1]
[2] (1974) 4 SCC 530
[3]
[4] (2012) 2 SCC 389
[5]
[6] (1992) 1 SCC 434
[7]
[8] AIR 1950 FC 129
[9]
[10] (1975) 2 SCC 81
[11]
[12] (1989) 4 SCC 741
[13]
[14] (1979) 2 SCC 491
[15]
[16] (1914) AC 808
[17]
[18] (1985) 4 SCC 232

Posted in Uncategorized

the word ‘payable’ in Section 40(a)(ia) would mean only when the amount is payable and not when it is actually paid. Grammatically, it may be accepted that the two words, i.e. ‘payable’ and ‘paid’, denote different meanings. = The liability to deduct tax at source under the provisions of Chapter XVII is mandatory. A person responsible for paying any sum is also liable to deposit the amount in the Government account. All the sections in Chapter XVII-B require a person to deduct the tax at source at the rates specified therein. The requirement in each of the sections is preceded by the word “shall”. The provisions are, therefore, mandatory. There is nothing in any of the sections that would warrant our reading the word “shall” as “may”. The point of time at which the deduction is to be made also establishes that the provisions are mandatory. For instance, under Section 194C, a person responsible for paying the sum is required to deduct the tax “at the time of credit of such sum to the account of the contractor or at the time of the payment thereof. ……”= In view of the aforesaid discussion, we hold that the view taken by the High Courts of Punjab & Haryana, Madras and Calcutta is the correct view and the judgment of the Allahabad High Court in CIT v. Vector Shipping Services (P) Ltd., (2013) 357 ITR 642 did not decide the question of law correctly. Thus, insofar as the judgment of the Allahabad High Court is concerned, we overrule the same. Consequences of the aforesaid discussion will be to answer the question against the appellant/assessee thereby approving the view taken by the High Court.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5512 OF 2017
|M/S. PALAM GAS SERVICE |…..APPELLANT(S) |
|VERSUS | |
|COMMISSIONER OF INCOME TAX |…..RESPONDENT(S) |
J U D G M E N T
A.K. SIKRI, J.

The neat question which arises for consideration in this appeal
relates to the interpretation of Section 40(a)(ia) of the Income Tax Act,
1961 (hereinafter referred to as the ‘Act’). Section 197C of the Act has
also some bearing on the issue involved.

Section 40 of the Act enumerates certain situations wherein expenditure
incurred by the assessee, in the course of his business, will not be
allowed to be deducted in computing the income chargeable under the head
‘Profits and Gains from Business or Profession’. One such contingency is
provided in clause (ia) of sub-section (a) of Section 40. This provision
reads as under:
“S. 40 – Amounts not deductible:

Notwithstanding anything to the contrary in Sections 30 to [38], the
following amounts shall not be deducted in computing the income chargeable
under the head “Profits and gains of business or profession”,—

xxx xxx xxx

(ia) any interest, commission or brokerage, fees for professional services
or fees for technical services payable to a resident, or amounts payable to
a contractor or sub-contractor, being resident for carrying out any work
(including supply of labour for carrying out any work), on which tax is
deductible at source under Chapter XVII-B and such tax has not been
deducted or, after deduction, has not been paid during the previous year,
or in the subsequent year before the expiry of the time prescribed under
sub-section (1) of Section 200;

Provided that where in respect of any such sum, tax has been deducted in
any subsequent year or has been deducted in the previous year but paid in
any subsequent year after the expiry of the time prescribed under sub-
section (1) of section 200, such sum shall be allowed as a deduction in
computing the income of the previous year in which such tax has been paid.

xxx xxx xxx”
As per clause (ia), certain payments made, which includes amounts payable
to a contractor or sub-contractor, would not be allowed as expenditure in
case the tax is deductible at source on the said payment under Chapter
XVIIB of the Act and such tax has not been deducted or, after deduction,
has not been paid during the previous year or in the subsequent year before
the expiry of the time prescribed under sub-section (1) of Section 200 of
the Act. In the instant case, certain payments were made by the appellant
assessee, in the Assessment Year 2006-2007 but the tax at source was not
deducted and deposited. We may point out here itself that as per Section
194C of the Act, payments to contractors and sub-contractors are subject to
tax deduction at source. The Income Tax Department/Revenue has, therefore,
not allowed the amounts paid to the sub-contractors as deduction while
computing the income chargeable to tax at the hands of the assessee in the
said Assessment Year.

It can be seen that Section 40(a)(ia) uses the expression ‘payable’ and on
that basis the question which is raised for consideration is:
“Whether the provisions of Section 40(a)(ia) shall be attracted when the
amount is not ‘payable’ to a contractor or sub-contractor but has been
actually paid?”
Some facts which will have bearing on the aforesaid issue need to be
mentioned at this stage:
The appellant-assessee is engaged in the business of purchase and
sale of LPG cylinders under the name and style of M/s. Palam Gas Service at
Palampur. During the course of assessment proceedings, it was noticed by
the Assessing Officer that the main contract of the assessee for carriage
of LPG was with the Indian Oil Corporation, Baddi. The assessee had
received the total freight payments from the IOC Baddi to the tune of
Rs.32,04,140/-. The assessee had, in turn, got the transportation of LPG
done through three persons, namely, Bimla Devi, Sanjay Kumar and Ajay to
whom he made the freight payment amounting to Rs. 20,97,689/-. The
Assessing Officer observed that the assessee had made a sub-contract with
the said three persons within the meaning of Section 194C of the Act and,
therefore, he was liable to deduct tax at source from the payment of Rs.
20,97,689/-. On account of his failure to do so the said freight expenses
were disallowed by the Assessing Officer as per the provisions of Section
40(a)(ia) of the Act. Against the order of the Assessing Officer, the
assessee preferred an appeal before the Commissioner of Income Tax
(Appeals), Shimla who vide its order dated August 17, 2012 upheld the order
dated November 30, 2011. The matter thereafter came up in appeal before
the Income Tax Appellate Tribunal (for short ‘ITAT’) which too met with the
same fate.
In further appeal to the High Court under Section 260A of the Act,
the outcome remained unchanged as the High Court of Himachal Pradesh also
dismissed the appeal affirming the order of the ITAT.

It may be pertinent to observe that the question raised now and formulated
above was specifically raised before the authorities below, including the
High Court.

The question is, as noted above, when the word used in Section 40(a)(ia) is
‘payable’, whether this Section would cover only those contingencies where
the amount is due and still payable or it would also cover the situations
where the amount is already paid but no advance tax was deducted thereupon.
This issue has come up for hearing before various High Courts and there
are divergent views of the High Courts there upon. In fact, most of the
High Courts have taken the view that the aforesaid provision would cover
even those cases where the amount stands paid. This is the view of the
Madras, Calcutta and Gujarat High Courts. Contrary view is taken by the
Allahabad High Court. In a recent judgment, the Punjab & Haryana High
Court took note of the judgments of the aforesaid High Courts and concurred
with the view taken by the Madras, Calcutta and Gujarat High Courts and
showed its reluctance to follow the view taken by the Allahabad High Court.
In this scenario, we would like to first discuss the reasons given by the
High Courts in two sets of judgments, arriving at a contrary conclusion.
Before that, we would also like to reproduce relevant portions of Section
194C and 200 of the Act as well as Rule 30(2) of the Income Tax Rules,
since they are also relevant to decide the controversy. These provisions
make the following reading:
“194-C. Payments to contractors.—(1) Any person responsible for paying any
sum to any resident (hereafter in this section referred to as the
contractor) for carrying out any work (including supply of labour for
carrying out any work) in pursuance of a contract between the contractor
and a specified person shall, at the time of credit of such sum to the
account of the contractor or at the time of payment thereof in cash or by
issue of a cheque or draft or by any other mode, whichever is earlier,
deduct an amount equal to—
.……… ……. …… ………

200. Duty of person deducting tax.—(1) Any person deducting any sum in
accordance with the foregoing provisions of this chapter] shall pay within
the prescribed time, the sum so deducted to the credit of the Central
Government or as the Board directs.

(2) Any person being an employer, referred to in subsection (1-A) of
Section 192 shall pay, within the prescribed time, the tax to the credit of
the Central Government or as the Board directs.

(3) Any person deducting any sum on or after the 1st day of April, 2005 in
accordance with the foregoing provisions of this chapter or, as the case
may be, any person being an employer referred to in sub-section (1-A) of
Section 192 shall, after paying the tax deducted to the credit of the
Central Government within the prescribed time, prepare such statements for
such period as may be prescribed] and deliver or cause to be delivered to
the prescribed income tax authority or the person authorised by such
authority such statement in such form and verified in such manner and
setting forth such particulars and within such time as may be prescribed.”
Rule 30(2) of the Income Tax Rules which stipulates the time prescribed for
payment of the tax deducted to the credit of the Central Government as
required by Section 200(1) and relevant portion thereof reads as under:
“Time and mode of payment to Government account of tax deducted at source
or tax paid under sub-section (1A) of section 192.

30(1) All sums deducted in accordance with the provisions of Chapter XVII-B
by an office of the Government shall be paid to the credit of the Central
Government-
.….. ………. …….. ……..

(2) All sums deducted in accordance with the provisions of Chapter XVII-B
by deductors other than an office of the Government shall be paid to the
credit of the Central Government-

on or before 30th day of April where the income or amount is credited or
paid in the month of March; and
in any other case, on or before seven days from the end of the month in
which-
the deduction is made; or
income-tax is due under sub-section(1A) of section 192.”

As per Section 194C, it is the statutory obligation of a person, who is
making payment to the sub-contractor, to deduct tax at source at the rates
specified therein. Plain language of the Section suggests that such a tax
at source is to be deducted at the time of credit of such sum to the
account of the contract or at the time of payment thereof, whichever is
earlier. Thus, tax has to be deducted in both the contingencies, namely ,
when the amount is credited to the account of the contractor or when the
payment is actually made. Section 200 of the Act imposes further obligation
on the person deducting tax at source, to deposit the same with the Central
Government or as the Board directs, within the prescribed time.
A conjoint reading of these two Sections would suggest that not only
a person, who is paying to the contractor, is supposed to deduct tax at
source on the said payment whether credited in the account or actual
payment made, but also deposit that amount to the credit of the Central
Government within the stipulated time. The time within which the payment
is to be deposited with the Central Government is mentioned in Rule 30(2)
of the Rules.

The Punjab & Haryana High Court in P.M.S. Diesels & Ors. v. Commissioner of
Income Tax – 2, Jalandhar & Ors., (2015) 374 ITR 562, has held these
provisions to be mandatory in nature with the following observations:
“13.  The liability to deduct tax at source under the provisions of Chapter
XVII is mandatory. A person responsible for paying any sum is also liable
to deposit the amount in the Government account. All the sections in
Chapter XVII-B require a person to deduct the tax at source at the rates
specified therein. The requirement in each of the sections is preceded by
the word “shall”. The provisions are, therefore, mandatory. There is
nothing in any of the sections that would warrant our reading the word
“shall” as “may”. The point of time at which the deduction is to be made
also establishes that the provisions are mandatory. For instance, under
Section 194C, a person responsible for paying the sum is required to deduct
the tax “at the time of credit of such sum to the account of the contractor
or at the time of the payment thereof. ……”
While holding the aforesaid view, the Punjab & Haryana High Court discussed
the judgments of the Calcutta and Madras High Courts, which had taken the
same view, and concurred with the same, which is clear from the following
discussion contained in the judgment of the Punjab & Haryana High Court:
“14. A Division Bench of the Calcutta High Court in Commissioner of Income
Tax v. Crescent Export Syndicate, (2013) 216 Taxman 258 (Calcutta) held:-

“13.…………… ……………… ……………

The term ‘shall’ used in all these sections make it clear that these are
mandatory provisions and applicable to the entire sum contemplated under
the respective sections. These sections do not give any leverage to the
assessee to make the payment without making TDS. On the contrary, the
intention of the legislature is evident from the fact that timing of
deduction of tax is earliest possible opportunity to recover tax, either at
the time of credit in the account of payee or at the time of payment to
payee, whichever is earlier.”

15. Ms. Dhugga invited our attention to a judgment of the Division Bench
of Madras High Court in Tube Investments of India Ltd. v. Assistant
Commissioner of Income-Tax (TDS), [2010] 325 ITR 610 (Mad). The Division
Bench referred to the statistics placed before it by the Department which
disclosed that TDS collection had augmented the revenue. The gross
collection of advance tax, surcharge, etc. was Rs. 2,75,857.70 crores in
the financial year 2008-09 of which the TDS component alone constituted Rs.
1,30,470.80 crores. The Division Bench observed that introduction of
Section 40(a)(ia) had achieved the objective of augmenting the TDS to a
substantial extent. The Division Bench also observed that when the
provisions and procedures relating to TDS are scrupulously applied, it also
ensured the identification of the payees thereby confirming the network of
assessees and that once the assessees are identified it would enable the
tax collection machinery to bring within its fold all such persons who are
liable to come within the network of tax payers. These objects also
indicate the legislative intent that the requirement of deducting tax at
source is mandatory.

16. The liability to deduct tax at source is, therefore, mandatory.”
The aforesaid interpretation of Sections 194C conjointly with Section 200
and Rule 30(2) is unblemished and without any iota of doubt. We, thus,
give our imprimatur to the view taken. As would be noticed and discussed
in little detail hereinafter, the Allahabad High Court, while interpreting
Section 40(a)(ia), did not deal with this aspect at all, even when it has a
clear bearing while considering the amplitude of the said provision.

In the aforesaid backdrop, let us now deal with the issue, namely, the word
‘payable’ in Section 40(a)(ia) would mean only when the amount is payable
and not when it is actually paid. Grammatically, it may be accepted that
the two words, i.e. ‘payable’ and ‘paid’, denote different meanings. The
Punjab & Haryana High Court, in P.M.S. Diesels & Ors., referred to above,
rightly remarked that the word ‘payable’ is, in fact, an antonym of the
word ‘paid’. At the same time, it took the view that it was not
significant to the interpretation of Section 40(a)(ia). Discussing this
aspect further, the Punjab & Haryana High Court first dealt with the
contention of the assessee that Section 40(a)(ia) relates only to those
assessees who follow the mercantile system and does not cover the cases
where the assessees follow the cash system. Those contention was rejected
in the following manner:
“19. There is nothing that persuades us to accept this submission. The
purpose of the section is to ensure the recovery of tax. We see no
indication in the section that this object was confined to the recovery of
tax from a particular type of assessee or assessees following a particular
accounting practice. As far as this provision is concerned, it appears to
make no difference to the Government as to the accounting system followed
by the assessees. The Government is interested in the recovery of taxes. If
for some reason, the Government was interested in ensuring the recovery of
taxes only from assessees following the mercantile system, we would have
expected the provision to so stipulate clearly, if not expressly. It is not
suggested that assessees following the cash system are not liable to deduct
tax at source. It is not suggested that the provisions of Chapter XVII-B do
not apply to assessees following the cash system. There is nothing in
Chapter XVII-B either that suggests otherwise.

20. Our view is fortified by the Explanatory Note to Finance Bill (No. 2)
of 2004. Sub-clause (ia) of clause (a) of Section 40 was introduced by the
Finance Bill (No. 2) of 2004 with effect from 01.04.2005. The Explanatory
Note to Finance Bill-2004 stated:-

“….. ….. ….. ….. ..
With a view to augment compliance of TDS provisions, it is proposed to
extend the provisions of section 40(a)(i) to payments of interest,
commission or brokerage, fees for professional services or fees for
technical services to residents, and payments to a resident contractor or
sub-contractor for carrying out any work (including supply of labour for
carrying out any work), on which tax has not been deducted or after
deduction, has not been paid before the expiry of the time prescribed under
sub-section(1) of section 200 and in accordance with the other provisions
of Chapter XVII-B. ……”

21. The adherence to the provisions ensures not merely the collection of
tax but also enables the authorities to bring within their fold all such
persons who are liable to come within the network of tax payers. The
intention was to ensure the collection of tax irrespective of the system of
accounting followed by the assessees. We do not see how this dual purpose
of augmenting the compliance of Chapter XVII and bringing within the
Department’s fold tax payers is served by confining the provisions of
Section 40(a)(ia) to assessees who follow the mercantile system. Nor do we
find anything that indicates that for some reason the legislature intended
achieving these objectives only by confining the operation of Section
40(a)(ia) to assessees who follow the mercantile system.

22. The same view was taken by a Division Bench of the Calcutta High Court
in Commissioner of Income Tax v. Crescent Export Syndicate, (supra). It was
held:-

“12.3. It is noticeable that Section 40(a) is applicable irrespective of
the method of accounting followed by an assessee. Therefore, by using the
term ‘payable’ legislature included the entire accrued liability. If
assessee was following mercantile system of accounting, then the moment
amount was credited to the account of payee on accrual of liability, TDS
was required to be made but if assessee was following cash system of
accounting, then on making payment TDS was to be made as the liability was
discharged by making payment. The TDS provisions are applicable both in the
situation of actual payment as well of the credit of the amount. It becomes
very clear from the fact that the phrase, ‘on which tax is deductible at
source under Chapter XVII-B’, was not there in the Bill but incorporated in
the Act. This was not without any purpose.”
We approve the aforesaid view as well. As a fortiorari, it follows that
Section 40(a)(ia) covers not only those cases where the amount is payable
but also when it is paid. In this behalf, one has to keep in mind the
purpose with which Section 40 was enacted and that has already been noted
above. We have also to keep in mind the provisions of Sections 194C and
200. Once it is found that the aforesaid Sections mandate a person to
deduct tax at source not only on the amounts payable but also when the sums
are actually paid to the contractor, any person who does not adhere to this
statutory obligation has to suffer the consequences which are stipulated in
the Act itself. Certain consequences of failure to deduct tax at source
from the payments made, where tax was to be deducted at source or failure
to pay the same to the credit of the Central Government, are stipulated in
Section 201 of the Act. This Section provides that in that contingency,
such a person would be deemed to be an assessee in default in respect of
such tax. While stipulating this consequence, Section 201 categorically
states that the aforesaid Sections would be without prejudice to any other
consequences which that defaulter may incur. Other consequences are
provided under Section 40(a)(ia) of the Act, namely, payments made by such
a person to a contractor shall not be treated as deductible expenditure.
When read in this context, it is clear that Section 40(a)(ia) deals with
the nature of default and the consequences thereof. Default is relatable
to Chapter XVIIB (in the instant case Sections 194C and 200, which
provisions are in the aforesaid Chapter). When the entire scheme of
obligation to deduct the tax at source and paying it over to the Central
Government is read holistically, it cannot be held that the word ‘payable’
occurring in Section 40(a)(ia) refers to only those cases where the amount
is yet to be paid and does not cover the cases where the amount is actually
paid. If the provision is interpreted in the manner suggested by the
appellant herein, then even when it is found that a person, like the
appellant, has violated the provisions of Chapter XVIIB (or specifically
Sections 194C and 200 in the instant case), he would still go scot free,
without suffering the consequences of such monetary default in spite of
specific provisions laying down these consequences. The Punjab & Haryana
High Court has exhaustively interpreted Section 40(a(ia) keeping in mind
different aspects. We would again quote the following paragraphs from the
said judgment, with our complete approval thereto:
“26. Further, the mere incurring of a liability does not require an
assessee to deduct the tax at source even if such payments, if made, would
require an assessee to deduct the tax at source. The liability to deduct
tax at source under Chapter XVII-B arises only upon payments being made or
where so specified under the sections in Chapter XVII, the amount is
credited to the account of the payee. In other words, the liability to
deduct tax at source arises not on account of the assessee being liable to
the payee but only upon the liability being discharged in the case of an
assessee following the cash system and upon credit being given by an
assessee following the mercantile system. This is clear from every section
in Chapter XVII.

27. Take for instance, the case of an assessee, who follows the cash
system of accounting and where the assessee who though liable to pay the
contractor, fails to do so for any reason. The assessee is not then liable
to deduct tax at source. Take also the case of an assessee, who follows the
mercantile system. Such an assessee may have incurred the liability to pay
amounts to a party. Such an assessee is also not bound to deduct tax at
source unless he credits such sums to the account of the party/payee, such
as, a contractor. This is clear from Section 194C set out earlier. The
liability to deduct tax at source, in the case of an assessee following the
cash system, arises only when the payment is made and in the case of an
assessee following the mercantile system, when he credits such sum to the
account of the party entitled to receive the payment.

28. The government has nothing to do with the dispute between the assessee
and the payee such as a contractor. The provisions of the Act including
Section 40 and the provisions of Chapter XVII do not entitle the tax
authorities to adjudicate the liability of an assessee to make payment to
the payee/other contracting party. The appellant’s submission, if accepted,
would require an adjudication by the tax authorities as to the liability of
the assessee to make payment. They would then be required to investigate
all the records of an assessee to ascertain its liability to third parties.
This could in many cases be an extremely complicated task especially in the
absence of the third party. The third party may not press the claim. The
parties may settle the dispute, if any. This is an exercise not even
remotely required or even contemplated by the section.”
As mentioned above, the Punjab & Haryana High Court found support from the
judgments of the Madras and Calcutta High Courts taking identical view and
by extensively quoting from the said judgments.

Insofar as judgment of the Allahabad High Court is concerned, reading
thereof would reflect that the High Court, after noticing the fact that
since the amounts had already been paid, it straightaway concluded, without
any discussion, that Section 40(a)(ia) would apply only when the amount is
‘payable’ and dismissed the appeal of the Department stating that the
question of law framed did not arise for consideration. No doubt, the
Special Leave Petition thereagainst was dismissed by this Court in limine.
However, that would not amount to confirming the view of the Allahabad High
Court (See V.M. Salgaocar & Bros. (P) Ltd. v. Commissioner of Income Tax,
(2000) 243 ITR 383 and Supreme Court Employees Welfare Association v. Union
of India, (1989) 4 SCC 187.

In view of the aforesaid discussion, we hold that the view taken by the
High Courts of Punjab & Haryana, Madras and Calcutta is the correct view
and the judgment of the Allahabad High Court in CIT v. Vector Shipping
Services (P) Ltd., (2013) 357 ITR 642 did not decide the question of law
correctly. Thus, insofar as the judgment of the Allahabad High Court is
concerned, we overrule the same. Consequences of the aforesaid discussion
will be to answer the question against the appellant/assessee thereby
approving the view taken by the High Court.

The appeal is, accordingly, dismissed with costs.
………………………………………J.
(A.K. SIKRI)

………………………………………J.
(ASHOK BHUSHAN)

NEW DELHI;
MAY 03, 2017.

Posted in Uncategorized

conviction of the petitioner for the offences punishable under Sections 302, 363, 367, 376(2)(f) and 201 IPC and various sentences imposed upon the petitioner including death sentence under Section 302 IPC and life imprisonment under Section 376(2)(f) IPC. In view of the decision of this Court in Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India and others.[1], these review petitions were listed in Court for oral hearing.= Principles (1) The court has to apply the test to determine, if it was the “rarest of rare” case for imposition of a death sentence. (2) In the opinion of the court, imposition of any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice. (3) Life imprisonment is the rule and death sentence is an exception. (4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations. (5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime = after the Judgment under review, the petitioner has completed Bachelors Preparatory Programme offered by the Indira Gandhi National Open University enabling him to prepare for Bachelor level study and that he has also completed the Gandhi Vichar Pariksha and had participated in drawing competition organized sometime in January 2016. It is asserted that the jail record of the petitioner is without any blemish. The matter is not contested as regards Conditions 1, 2, 5, 6 and 7 as stated in paragraph 206 of the decision in Bachan Singh (supra) but what is now being projected is that there is a possibility of the accused being reformed and rehabilitated. Though these attempts on part of the petitioner are after the Judgment under review, we have considered the material in that behalf to see if those circumstances warrant a different view. We have given anxious consideration to the material on record but find that the aggravating circumstances namely the extreme depravity and the barbaric manner in which the crime was committed and the fact that the victim was a helpless girl of four years clearly outweigh the mitigating circumstances now brought on record. Having taken an overall view of the matter, in our considered view, no case is made out to take a different view in the matter. We, therefore, affirm the view taken in the Judgment under review and dismiss the present Review Petitions..

Reportable
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Review Petition (Crl.) Nos.637-638 of 2015

IN

Criminal Appeal Nos.2486-2487 of 2014
Vasanta Sampat Dupare ….. Petitioner

Versus

State of Maharashtra …. Respondent

J U D G M E N T
Uday Umesh Lalit, J.

1. These Review Petitions are directed against the Judgment and Order
dated 26.11.2014 passed by this Court in Criminal Appeal Nos.2486-87 of
2014 affirming conviction of the petitioner for the offences punishable
under Sections 302, 363, 367, 376(2)(f) and 201 IPC and various sentences
imposed upon the petitioner including death sentence under Section 302 IPC
and life imprisonment under Section 376(2)(f) IPC. In view of the decision
of this Court in Mohd. Arif @ Ashfaq v. Registrar, Supreme Court of India
and others.[1], these review petitions were listed in Court for oral
hearing.

2. The facts leading to the filing of criminal appeals in this Court
including the nature and quality of evidence on record have been dealt with
and considered in the Judgment of this Court dated 26.11.2014[2]. The
charge against the petitioner was that the victim, a minor girl of four
years was raped and battered to death by the petitioner. The petitioner
allegedly lured the victim by giving her chocolates, kidnapped her and
after satisfying his lust caused crushing injuries to her with the help of
stones weighing about 8.5 kg and 7.5 kg. The prosecution relied upon the
evidence of PW2 Manisha, PW3 Minal, PW5 Vandana and PW6 Baby Sharma who had
seen the petitioner taking away the victim on a bicycle on the fateful day.
In his disclosure statement under Section 27 of the Evidence Act the
petitioner had shown the place where dead body of the victim was lying and
the tap where he had washed his blood stained clothes. The medical
evidence on record was dealt with in paragraph 14 of the Judgment under
review as under :-

14. According to the doctor, he had found during internal examination
that under scalp haematoma was present over left frontal and right frontal
region of size 4cm × 4cm, dark red, the frontal bone was fractured and
depressed, fracture line extended up to occipital bone through right
temporal and parietal bone fracture on interior and middle cranial side.
The subarachnoid haemorrhage was present all over the brain surface and
meninges were congested. In his opinion, the cause of death was head
injury, associated with the injury on the genital region. He has testified
that the two stones that were sent to him in sealed cover along with the
requisition, Ext.62, for opinion, could have been used to cause the
injuries on the victim. He has weighed the stones, which are, 8.5kg and
7.5kg, and has opined that there had been forceful sexual intercourse.”
3. After taking into account the evidence and the circumstances on
record, this Court in the Judgment under review concluded as under:-

“On a critical analysis of the evidence on record, we are convinced
that the circumstances that have been clearly established are that the
appellant was seen in the courtyard where the minor girl and other children
were playing; that the appellant was seen taking the deceased on his
bicycle; that he had gone to the grocery shop owned by PW-6 to buy Mint
chocolate along with her; that the accused had told PW2 that the child was
the daughter of his friend and he was going to ‘Tekdi-Wadi’ along with the
girl; that the appellant had led to discovery of the dead body of the
deceased, the place where he had washed his clothes and at his instance the
stones smeared with blood were recovered; that the medical report clearly
indicates about the injuries sustained by the deceased on her body; that
the injuries sustained on the private parts have been stated by the doctor
to have been caused by forcible sexual intercourse; that the stones that
were seized were smeared with blood and the medical evidence corroborates
the fact that injuries could have been caused by battering with stones;
that the chemical analysis report shows that the blood group found on the
clothes of the appellant; that the appellant has not offered any
explanation with regard to the recovery made at his instance; and that
nothing has been stated in his examination under Section 313 CrPC that
there was any justifiable reason to implicate him in the crime in question.
Thus, we find that each of the incriminating circumstances has been
clearly established and the chain of circumstances are conclusive in nature
to exclude any kind of hypothesis, but the one proposed to be proved, and
lead to a definite conclusion that the crime was committed by the accused.
Therefore, we have no hesitation in affirming the judgment of conviction
rendered by the learned trial Judge and affirmed by the High Court.”

4. On the issue of death sentence awarded to the petitioner, this Court
first considered the principles governing the matter in issue as under:-

“39. Now we shall proceed to deal with the facet of sentence. In Bachan
Singh v. State of Punjab[3], the Court held thus:

“(a) 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.

(b) 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.”

40. In Bachan Singh case3, the Court referred to the decision in Furman v.
Georgia[4] and noted the suggestion given by the learned counsel about the
aggravating and the mitigating circumstances. While discussing about the
aggravating circumstances, the Court noted the aggravating circumstances
suggested by the counsel which read as follows: (Bachan Singh case3, SCC p.
749, para 202)
“Aggravating circumstances.—A court may, however, in the following cases
impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning and involves
extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the Union or
of a member of any police force or of any public servant and was committed—
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member
or public servant in the lawful discharge of his duty as such member or
public servant whether at the time of murder he was such member or public
servant, as the case may be, or had ceased to be such member or public
servant; or
(d) if the murder is of a person who had acted in the lawful discharge of
his duty under Section 43 of the Code of Criminal Procedure, 1973, or who
had rendered assistance to a Magistrate or a police officer demanding his
aid or requiring his assistance under Section 37 and Section 129 of the
said Code.”
After reproducing the same, the Court opined: (SCC p. 749, para 203)
“203. Stated broadly, there can be no objection to the acceptance of these
indicators but as we have indicated already, we would prefer not to fetter
judicial discretion by attempting to make an exhaustive enumeration one way
or the other.”

41. Thereafter, the Court referred to the suggestions pertaining to
mitigating circumstances: (Bachan Singh case3, – SCC p.750 para 206)
“Mitigating circumstances.—In the exercise of its discretion in the above
cases, the court shall take into account the following circumstances.—
(1) That the offence was committed under the influence of extreme mental or
emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be
sentenced to death.
(3) The probability that the accused would not commit criminal acts of
violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy
Conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the accused believed
that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another
person.
(7) That the condition of the accused showed that he was mentally defective
and that the said defect impaired his capacity to appreciate the
criminality of his conduct.”
After reproducing the above, the Court observed: (SCC p. 750, para 207)
“207. We will do no more than to say that these are undoubtedly relevant
circumstances and must be given great weight in the determination of
sentence.

42. In the said case, the Court has also held thus: (Bachan Singh case3,
SCC p. 751, para 209)
“209. … It is, therefore, imperative to voice the concern that courts,
aided by the broad illustrative guidelines 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.”

43. In Machhi Singh and others v. State of Punjab[5] a three-Judge Bench
has explained the concept of rarest of the rare cases by stating that: (SCC
p. 487, para 32)
“32. The reasons why the community as a whole does not endorse the
humanistic approach reflected in ‘death sentence-in-no-case’ doctrine are
not far to seek. In the first place, the very humanistic edifice is
constructed on the foundation of ‘reverence for life’ principle. When a
member of the community violates this very principle by killing another
member, the society may not feel itself bound by the shackles of this
doctrine. Secondly, it has to be realised that every member of the
community is able to live with safety without his or her own life being
endangered because of the protective arm of the community and on account of
the rule of law enforced by it. The very existence of the rule of law and
the fear of being brought to book operates as a deterrent of those who have
no scruples in killing others if it suits their ends. Every member of the
community owes a debt to the community for this protection.”

44. Thereafter, after adverting to the aspects of the feeling of the
community and its desire for self-preservation, the Court opined that the
community may well withdraw the protection by sanctioning the death
penalty. The Court in that regard ruled thus: (Machhi Singh case5, SCC p.
487, para 32)
“32. … But the community will not do so in every case. It may do so ‘in the
rarest of rare cases’ when its collective conscience is so shocked that it
will expect the holders of the judicial power centre to inflict death
penalty irrespective of their personal opinion as regards desirability or
otherwise of retaining death penalty.”
It is apt to state here that in the said case, emphasis was laid on certain
aspects, namely, manner of commission of murder, motive for commission of
murder, anti-social or socially abhorrent nature of the crime, magnitude of
crime and personality of the victim of murder.

45. After so enumerating, the propositions that emerged out from Bachan
Singh3 were culled out which are as follows: (Machhi Singh case5, SCC p.
489, para 38)
“38. … The following propositions emerge from Bachan Singh case3:
‘(i) The extreme penalty of death need not be inflicted except in gravest
cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the
“offender” also require to be taken into consideration along with the
circumstances of the “crime”.
(iii) Life imprisonment is the rule and death sentence is an exception. In
other words death sentence must be imposed only when life imprisonment
appears to be an altogether inadequate punishment having regard to the
relevant circumstances of the crime, and provided, and only provided, the
option to impose sentence of imprisonment for life cannot be
conscientiously exercised having regard to the nature and circumstances of
the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be
drawn up and in doing so the mitigating circumstances have to be accorded
full weightage and a just balance has to be struck between the aggravating
and the mitigating circumstances before the option is exercised.”

46. Thereafter, the three-Judge Bench opined that to apply the said
guidelines, the following questions are required to be answered: (Machhi
Singh case5, SCC p. 489, para 39)
“(a) Is there something uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative
but to impose death sentence even after according maximum weightage to the
mitigating circumstances which speak in favour of the offender?”
In the said case, the Court upheld the extreme penalty of death in respect
of three accused persons.”

5. In the light of the principles as stated above, the facts of the
present matter were considered by this Court in the Judgment under review
as under:-
“57. Keeping in view the aforesaid authorities, we shall proceed to
adumbrate what is the duty of the Court when the collective conscience is
shocked because of the crime committed. When the crime is diabolical in
nature and invites abhorrence of the collective, it shocks the judicial
conscience and impels it to react keeping in view the collective
conscience, cry of the community for justice and the intense indignation at
the manner in which the brutal crime is committed. We are absolutely
conscious that Judges while imposing sentence, should never be swayed away
by any kind of individual philosophy and predilections. It should never
have the flavour of Judge-centric attitude or perception. It has to satisfy
the test laid down in various precedents relating to the rarest of the rare
case. We are also required to pose two questions that have been stated in
Machhi Singh case5.

58. Presently, we shall proceed to dwell upon the manner in which the crime
was committed. Materials on record clearly reveal that the appellant was
well acquainted with the inhabitants of the locality and as is demonstrable
he had access to the house of the father of the deceased and the children
used to call him “uncle”. He had lured the deceased to go with him to have
chocolates. It is an act of taking advantage of absolute innocence. He had
taken the deceased from place to place by his bicycle and eventually raped
her in a brutal manner, as if he had an insatiable and ravenous appetite.
The injuries caused on the minor girl are likely to send a chill in the
spine of the society and shiver in the marrows of human conscience. He had
battered her to death by assaulting her with two heavy stones. The injured
minor girl could not have shown any kind of resistance. It is not a case
where the accused had a momentary lapse. It is also not a case where the
minor child had died because of profuse bleeding due to rape but because of
the deliberate cruel assault by the appellant. After the savage act was
over, the coolness of the appellant is evident, for he washed the clothes
on the tap and took proper care to hide things. As is manifest, he even did
not think for a moment the trauma and torture that was caused to the
deceased. The gullibility and vulnerability of the four year girl, who
could not have nurtured any idea about the maladroitly designed biological
desires of this nature, went with the uncle who extinguished her life-
spark. The barbaric act of the appellant does not remotely show any concern
for the precious life of a young minor child who had really not seen life.
The criminality of the conduct of the appellant is not only depraved and
debased, but can have a menacing effect on the society. It is calamitous.

60. In the case at hand, as we find, not only was the rape committed in a
brutal manner but murder was also committed in a barbaric manner. The rape
of a minor girl child is nothing but a monstrous burial of her dignity in
the darkness. It is a crime against the holy body of a girl child and the
soul of society and such a crime is aggravated by the manner in which it
has been committed. The nature of the crime and the manner in which it has
been committed speaks about its uncommonness. The crime speaks of
depravity, degradation and uncommonality. It is diabolical and barbaric.
The crime was committed in an inhuman manner. Indubitably, these go a long
way to establish the aggravating circumstances.

61. We are absolutely conscious that mitigating circumstances are to be
taken into consideration. The learned counsel for the appellant pointing
out the mitigating circumstances would submit that the appellant is in his
mid-fifties and there is possibility of his reformation. Be it noted, the
appellant was aged about forty-seven years at the time of commission of the
crime. As is noticeable, there has been no remorse on the part of the
appellant. There are cases when this Court has commuted the death sentence
to life finding that the accused has expressed remorse or the crime was not
premeditated. But the obtaining factual matrix when unfolded stage by stage
would show the premeditation, the proclivity and the rapacious desire. The
learned counsel would submit that the appellant had no criminal antecedents
but we find that he was a history-sheeter and had a number of cases pending
against him. That alone may not be sufficient. The appalling cruelty shown
by him to the minor girl child is extremely shocking and it gets
accentuated, when his age is taken into consideration. It was not committed
under any mental stress or emotional disturbance and it is difficult to
comprehend that he would not commit such acts and would be reformed or
rehabilitated. As the circumstances would graphically depict, he would
remain a menace to society, for a defenceless child has become his prey. In
our considered opinion, there are no mitigating circumstances.”
6. The above quoted observations of this Court in Judgment under review
show that the aggravating facts were considered in paragraphs 58 and 60 and
the entirety of the matter including the mitigating circumstances were
dealt with more particularly in paragraph 61. The aggravating facts not
only showed the extreme depravity but in the opinion of this Court they
brought to the fore the diabolical and barbaric manner in which the crime
was committed. The Court did not find any mitigating circumstances in
favour of the accused to tilt the balance in his favour for awarding lesser
punishment.

7. At this juncture, it may be noted that the decision of this Court in
Machhi Singh (supra) shows that after having laid down oft-quoted
principles, this Court considered individual cases of accused Machhi Singh,
Jagir Singh and Kashmir Singh. As regards Machhi Singh, it was observed in
paragraph 42:-
“…….The offence committed was of an exceptionally depraved and heinous
character. The manner of its execution and its design would put it at the
level of extreme atrocity and cruelty.

…….. The crime committed carries features which could be utterly
horrendous especially when we know the weapons and the manner of their use.
The victims could offer no resistance to the accused appellants. The law
clamours for a sterner sentence; the crime being heinous, atrocious and
cruel.

……..The crime was gruesome and cold-blooded revealing the propensity of the
accused appellants to commit murder.”

Similarly as regards Jagir Singh it was observed,

“…….The crime committed carries features which could be utterly horrendous
especially when we know the weapons and their manner of use. The victims
could offer no resistance to the accused appellants. The law clamours for a
sterner sentence; the crime being heinous, atrocious and cruel.

………The helpless state of the victims and the circumstances of the case lead
us to confirm the death sentence.”
8. Further, paragraphs 44 and 45 show that one of the accused namely
Kashmir Singh had caused the death of a defenceless child of six years and
the matter as regards said accused Kashmir Singh in particular and with
regard to all the accused in general, was dealt with as under:-
“44. Insofar as appellant Kashmir Singh s/o Arjan Singh is concerned death
sentence has been imposed on him by the Sessions Court and confirmed by the
High Court for the following reasons:
Similarly, Kashmir Singh appellant caused the death of a child Balbir Singh
aged six years while asleep, a poor defenceless life put off by a depraved
mind reflecting grave propensity to commit murder.

45. We are of the opinion that insofar as these three appellants are
concerned the rarest of rare cases rule prescribed in Bachan Singh case is
clearly attracted and sentence of death is called for. We are unable to
persuade ourselves that a sentence of imprisonment for life will be
adequate in the circumstances of the crime. We therefore fully uphold the
view concurrently taken by the Sessions Court and the High Court that
extreme penalty of death requires to be imposed on appellants (1) Machhi
Singh (2) Kashmir Singh s/o Arjan Singh (3) Jagir Singh. We accordingly
confirm the death sentence imposed on them and dismiss their appeals.”
9. The assessment and the consideration bestowed by this Court in Machhi
Singh (supra) shows that the aggravating circumstances namely the manner in
which the crime was committed, the brutality and barbaric manner of
execution, the status and helplessness of victims and the fact that the
crime was gruesome and cold blooded were given due weightage. These facts
themselves were found to be tilting the balance against the concerned
accused. In the present case a minor girl of four years was raped and
battered to death by the petitioner. The brutality and diabolical nature
of the crime and the fact that the victim had reposed trust and confidence
in the petitioner was taken into account and this Court found the
aggravating circumstances completely outweighing the other factors. The
evidence and circumstances were dealt with in the Judgment under review in
great detail and this Court had no hesitation in affirming the death
sentence.

10. In the present Review Petition, Mr. Anup Bhambhani, learned Senior
Advocate appearing for the petitioner, at the outset, raised a grievance
that in the light of principles laid down in Bachan Singh and Machhi Singh
(supra) mitigating factors ought to have been taken into account and that
proper and effective hearing in that behalf was not extended to the
petitioner. This Court therefore by Order dated 31.08.2016 permitted the
petitioner to file material to indicate mitigating factors for conversion
of the death sentence to life imprisonment. This was in keeping with the
principles laid down by this Court in Dagdu and Others v. State of
Maharashtra[6] wherein three Judge Bench of this Court had observed:-

“79 …..The Court, on convicting an accused, must unquestionably hear him on
the question of sentence. But if, for any reason, it omits to do so and the
accused makes a grievance of it in the higher court, it would be open to
that Court to remedy the breach by giving a hearing to the accused on the
question of sentence.”

80. …….For a proper and effective implementation of the provision contained
in Section 235(2), it is not always necessary to remand the matter to the
court which has recorded the conviction……Remand is an exception, not the
rule, and ought therefore to be avoided as far as possible in the interests
of expeditious, though fair, disposal of cases.”
11. The petitioner thereafter filed Crl.M.P. Nos.16369-70 of 2016 placing
on record certain facts and material. It was submitted :-
“Education and Activities undertaken by the Petitioner in Jail

The Petitioner submits that he had to discontinue school after class 6th
during childhood. Thereafter he worked in various jobs such as
electrician, construction labourer, nursery worker, security guard. Death
row prisoners in Maharashtra are not permitted to work, but the Petitioner
as an undertial has worked in the jail nursery. During incarceration, the
Petitioner has undertaken studies, art competitions as well as several
programmes aimed at reforming himself. The Petitioner’s counsel is
informed that his drawings are exhibited in jail as well.

The Petitioner has in 2015 successfully completed the Bachelors Preparatory
Programme offered by the Indira Gandhi National Open University. This
course enables people who have discontinued schooling before matriculation
to prepare for bachelors-level studies.

The Petitioner in 2015 also successfully completed the Gandhi Vichar
Pariksha (Examinaiton on Gandhian Thoughts). This examination seeks to
rehabilitate prisoners who have committed violent crimes, by learning from
the life and teaching of M.K. Gandhi. The course includes classes on the
teachings of M.K. Gandhi, reading his autobiography, and a descriptive
exam.

The Petitioner is quite proficient in drawing and has also participated in
a drawing competition organized by the Nagpur Municipal Corporation and
Kalajarn Foundation on 10.01.2016.

It is therefore submitted that the Petitioner is on the path to reformation
and rehabilitation and therefore the death sentence imposed on him deserves
to be commuted to imprisonment for life.”

The application then set out that the Disciplinary Record of the
Petitioner in Jail was without any blemish and that there were no criminal
antecedents.

12. The matter was thereafter posted for hearing. Mr. Anup Bhambhani,
learned Senior Advocate principally submitted:-
a. The judgment of conviction and order of sentence were passed by the
trial court on the same day namely on 23.02.2012 which was completely
opposed to the law laid down by this Court in Allauddin Mian and Others v.
State of Bihar[7] and against the spirit of Section 235(2) of the CrPC.

b. As laid down in para 206 of Bachan Singh (supra) “the probability
that the accused can be reformed” was an important facet and the burden was
on the State to prove by evidence that the accused could not possibly be
reformed. However, such burden was not discharged by the State and no
evidence was led. In the absence of such evidence by the State, no death
sentence could be awarded or confirmed.
13. Para 10 of the decision of this Court in Allauddin Mian v. State of
Bihar (supra) on which reliance was placed, is to the following effect:-
10. Even a casual glance at the provisions of the Penal Code will show that
the punishments have been carefully graded corresponding with the gravity
of offences; in grave wrongs the punishments prescribed are strict whereas
for minor offences leniency is shown. Here again there is considerable room
for manoeuvre because the choice of the punishment is left to the
discretion of the judge with only the outer limits stated. There are only a
few cases where a minimum punishment is prescribed. The question then is
what procedure does the judge follow for determining the punishment to be
imposed in each case to fit the crime? The choice has to be made after
following the procedure set out in sub-section (2) of Section 235 of the
Code. That sub-section reads as under:

If the accused is convicted, the judge shall, unless he proceeds in
accordance with the provisions of Section 360, hear the accused on the
question of sentence, and then pass sentence on him according to law.

The requirement of hearing the accused is intended to satisfy the rule of
natural justice. It is a fundamental requirement of fair play that the
accused who was hitherto concentrating on the prosecution evidence on the
question of guilt should, on being found guilty, be asked if he has
anything to say or any evidence to tender on the question of sentence. This
is all the more necessary since the courts are generally required to make
the choice from a wide range of discretion in the matter of sentencing. To
assist the court in determining the correct sentence to be imposed the
legislature introduced sub-section (2) to Section 235. The said provision
therefore satisfies a dual purpose; it satisfies the rule of natural
justice by according to the accused an opportunity of being heard on the
question of sentence and at the same time helps the court to choose the
sentence to be awarded. Since the provision is intended to give the accused
an opportunity to place before the court all the relevant material having a
bearing on the question of sentence there can be no doubt that the
provision is salutary and must be strictly followed. It is clearly
mandatory and should not be treated as a mere formality. Mr Garg was,
therefore, justified in making a grievance that the trial court actually
treated it as a mere formality as is evident from the fact that it recorded
the finding of guilt on 31-3-1987, on the same day before the accused could
absorb and overcome the shock of conviction they were asked if they had
anything to say on the question of sentence and immediately thereafter the
decision imposing the death penalty on the two accused was pronounced. In a
case of life or death as stated earlier, the presiding officer must show a
high decree of concern for the statutory right of the accused and should
not treat it as a mere formality to be crossed before making the choice of
sentence. If the choice is made, as in this case, without giving the
accused an effective and real opportunity to place his antecedents, social
and economic background, mitigating and extenuating circumstances, etc.,
before the court, the court’s decision on the sentence would be vulnerable.
We need hardly mention that in many cases a sentencing decision has far
more serious consequences on the offender and his family members than in
the case of a purely administrative decision; a fortiori, therefore, the
principle of fair play must apply with greater vigour in the case of the
former than the latter. An administrative decision having civil
consequences, if taken without giving a hearing is generally struck down as
violative of the rule of natural justice. Likewise a sentencing decision
taken without following the requirements of sub-section (2) of Section 235
of the Code in letter and spirit would also meet a similar fate and may
have to be replaced by an appropriate order. The sentencing court must
approach the question seriously and must endeavour to see that all the
relevant facts and circumstances bearing on the question of sentence are
brought on record. Only after giving due weight to the mitigating as well
as the aggravating circumstances placed before it, it must pronounce the
sentence. We think as a general rule the trial courts should after
recording the conviction adjourn the matter to a future date and call upon
both the prosecution as well as the defence to place the relevant material
bearing on the question of sentence before it and thereafter pronounce the
sentence to be imposed on the offender. In the present case, as pointed out
earlier, we are afraid that the learned trial Judge did not attach
sufficient importance to the mandatory requirement of sub-section (2) of
Section 235 of the Code.”
14. Sub-section (2) of Section 235 of Cr.P.C. obliges the Court to hear
the accused on the question of sentence and normally it is expected that
after recording the conviction, the matter be adjourned to a future date
calling upon both the prosecution as well as the defence to place relevant
material having bearing on the question of sentence. The effect of
recording of the conviction and imposition of death sentence on the same
day, was also considered by a bench of three learned Judges of this Court
in Malkiat Singh and others v. State of Punjab[8]. In that case, this
Court did not deem it expedient to remand the matter after six years and
converted the sentence of death to imprisonment for life. It was observed:-

“18. On finding that the accused committed the charged offences, Section
235(2) of the Code empowers the Judge that he shall pass sentence on him
according to law on hearing him. Hearing contemplated is not confined
merely to oral hearing but also intended to afford an opportunity to the
prosecution as well as the accused to place before the court facts and
material relating to various factors on the question of sentence, and if
interested by either side, to have evidence adduced to show mitigating
circumstances to impose a lesser sentence or aggravating grounds to impose
death penalty. Therefore, sufficient time must be given to the accused or
the prosecution on the question of sentence, to show the grounds on which
the prosecution may plead or the accused may show that the maximum sentence
of death may be the appropriate sentence or the minimum sentence of life
imprisonment may be awarded, as the case may be. No doubt the accused
declined to adduce oral evidence. But it does not prevent to show the
grounds to impose lesser sentence on A-1. This Court in the aforestated
Allauddin and Anguswamy[9] cases held that the sentence awarded on the same
day of finding guilt is not in accordance with the law. That would normally
have the effect of remanding the case to the Special Court for
reconsideration. But in the view of the fact that A-1 was in incarceration
for long term of six years from the date of conviction, in our considered
view it needs no remand for further evidence. It is sufficient that the
sentence of death awarded to A-1 is converted into rigorous imprisonment
for life. The sentences of death is accordingly modified and A-1 is
sentenced to undergo rigorous imprisonment for life for causing the deaths
of all four deceased.”
15. In a recent Judgment rendered by three learned Judges of this Court
in B.A. Umesh v. High Court of Karnataka[10], the facts were more or less
similar, in that no separate date for hearing on sentence was given after
recording conviction. Para 8 of that decision of this Court is quoted for
ready reference:-
“8. In addition to above, it is contended on behalf of the petitioner
(Review Applicant) that since no separate date for hearing on sentence was
given in the present case by the trial court, as such for violation of
Section 235(2) Cr.P.C., the sentence of death cannot be affirmed. We have
considered the argument of Ms. Suri. It is true that the convict has a
right to be heard before sentence. There is no mandate in Section 235(2)
Cr.P.C. to fix separate date for hearing on sentence. It depends on the
facts and circumstances as to whether a separate date is required for
hearing on sentence or parties feel convenient to argue on sentence on the
same day. Had any party pressed for separate date for hearing on the
sentence, or both of them wanted to be heard on some other date, situation
could have been different. In the present case, the parties were heard on
sentence by both the courts below, and finally by this Court, as is
apparent from the Judgment under review. As such, merely for the reason
that no separate date is given for hearing on the sentence, the Review
Petition cannot be allowed.”

This Court then relied on the principle laid down in Dagdu v. State of
Maharashtra (supra) which was followed subsequently by another Bench of
three learned Judges in Tarlok Singh v. State of Punjab[11]. In the
circumstances, merely because no separate date was given for hearing on
sentence, we cannot find the entire exercise to be flawed or vitiated.
Since we had allowed the petitioner to place the relevant material on
record in the light of the principles laid down in Dagdu v. State of
Maharashtra (supra), we will proceed to consider the material so placed on
record and weigh these factors and the aggravating circumstances as found
by the Court in the Judgment under review.

16. However, before such consideration we must deal with the second
submission advanced by Mr. Bhambhani, learned Senior Advocate. In his
submission, in terms of paragraph 206 of the decision of this Court in
Bachan Singh (supra) the burden was upon the State in respect of conditions
(3) and (4), which burden was not discharged at all. Consequently,
according to him, the sentence of death would be required to be converted
to life imprisonment. Paragraph 206 of the decision of this Court in
Bachan Singh (supra) detailed certain mitigating circumstances and while
dealing with conditions (3) and (4), this Court observed that it would be
for the State to prove by evidence that the accused did not satisfy
conditions (3) and (4). However, subsequent paragraphs show that those
circumstances would certainly be relevant and great weight be attached to
them but it was the cumulative effect of the mitigating circumstances on
one hand and the aggravating facts on the other, which would be weighed to
come to the final conclusion whether the case satisfied the requirement of
being “rarest of rare”. It is not as if mere failure on part of the State
to lead such evidence would clinch the issue in favour of the accused.

17. Mr. Bhambhani, learned Senior Advocate then relied on the decision of
this Court in Rajesh Kumar v. State through Government of NCT of Delhi[12],
particularly paragraphs 73 and 74 thereof which paragraphs are as under:
“73. In the instant case the State has failed to show that the appellant is
a continuing threat to the society or that he is beyond reform and
rehabilitation. On the other hand, in para 77 of the impugned judgment the
High Court observed as follows:
“We have no evidence that the appellant is incapable of being rehabilitated
in society. We also have no evidence that he is capable of being
rehabilitated in society. This circumstance remains a neutral
circumstance.”

74. It is clear from the aforesaid finding of the High Court that there is
no evidence to show that the accused is incapable of being reformed or
rehabilitated in the society and the High Court has considered the same as
a neutral circumstance. In our view the High Court was clearly in error.
The very fact that the accused can be rehabilitated in the society and is
capable of being reformed, since the State has not given any evidence to
the contrary, is certainly a mitigating circumstance and which the High
Court has failed to take into consideration. The High Court has also failed
to take into consideration that the appellant is not a continuing threat to
the society in the absence of any evidence to the contrary. Therefore, in
para 78 of the impugned judgment, the High Court, with respect, has taken a
very narrow and a myopic view of the mitigating circumstances about the
appellant. The High Court has only considered that the appellant is a first
time offender and he has a family to look after. We are, therefore,
constrained to observe that the High Court’s view of mitigating
circumstances has been very truncated and narrow insofar as the appellant
is concerned.”

The discussion shows that this Court found that mitigating circumstances in
favour of the appellant were not properly considered and in the ultimate
analysis the case did not satisfy being “rarest of rare” and therefore,
this Court substituted the sentence of imprisonment for life to that of
death sentence. The discussion in paragraphs 73 and 74 does not indicate
that in the absence of any evidence led by the State in connection with
conditions (3) and (4) as stated in paragraph 206 of Bachan Singh (supra),
the entire exercise gets vitiated and the matter must always be answered in
favour of the accused. It is undoubtedly a relevant consideration which
will be weighed by the Court together with other circumstances on record.
We, therefore, do not find any merit in the second submission.

18. In Ramnaresh and Others v. State of Chhattisgarh[13] this Court
considered the import of governing principles regarding death sentence and
summed up that it is the cumulative effect of both the aggravating and
mitigating circumstances that need to be taken into account. Paragraphs 76
to 81 of the decision are as under:-
“76. The law enunciated by this Court in its recent Judgments, as already
noticed, adds and elaborates the principles that were stated in Bachan
Singh and thereafter, in Machhi Singh. The

aforesaid Judgments, primarily dissect these principles into two different
compartments—one being the “aggravating circumstances” while the other
being the “mitigating circumstances”. The court would consider the
cumulative effect of both these aspects and normally, it may not be very
appropriate for the court to decide the most significant aspect of
sentencing policy with reference to one of the classes under any of the
following heads while completely ignoring other classes under other heads.
To balance the two is the primary duty of the court. It will be appropriate
for the court to come to a final conclusion upon balancing the exercise
that would help to administer the criminal justice system better and
provide an effective and meaningful reasoning by the court as contemplated
under Section 354(3) Cr.P.C.

Aggravating circumstances

(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 CrPC.
(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

(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
behaviour 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 behaviour 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
eyewitness though the prosecution has brought home the guilt of the
accused.
77. While determining the questions relatable to sentencing policy, the
court has to follow certain principles and those principles are the
loadstar besides the above considerations in imposition or otherwise of the
death sentence.

Principles

(1) The court has to apply the test to determine, if it was the “rarest of
rare” case for imposition of a death sentence.
(2) In the opinion of the court, imposition of any other punishment i.e.
life imprisonment would be completely inadequate and would not meet the
ends of justice.
(3) Life imprisonment is the rule and death sentence is an exception.
(4) The option to impose sentence of imprisonment for life cannot be
cautiously exercised having regard to the nature and circumstances of the
crime and all relevant considerations.
(5) The method (planned or otherwise) and the manner (extent of brutality
and inhumanity, etc.) in which the crime was committed and the
circumstances leading to commission of such heinous crime.

78. Stated broadly, these are the accepted indicators for the exercise of
judicial discretion but it is always preferred not to fetter the judicial
discretion by attempting to make the excessive enumeration, in one way or
another. In other words, these are the considerations which may
collectively or otherwise weigh in the mind of the court, while exercising
its jurisdiction. It is difficult to state it as an absolute rule. Every
case has to be decided on its own merits. The judicial pronouncements, can
only state the precepts that may govern the exercise of judicial discretion
to a limited extent. Justice may be done on the facts of each case. These
are the factors which the court may consider in its endeavour to do
complete justice between the parties.

79. The court then would draw a balance sheet of aggravating and mitigating
circumstances. Both aspects have to be given their respective weightage.
The court has to strike a balance between the two and see towards which
side the scale/balance of justice tilts. The principle of proportion
between the crime and the punishment is the principle of “just deserts”
that serves as the foundation of every criminal sentence that is
justifiable. In other words, the “doctrine of proportionality” has a
valuable application to the sentencing policy under the Indian criminal
jurisprudence. Thus, the court will not only have to examine what is just
but also as to what the accused deserves keeping in view the impact on the
society at large.

80. Every punishment imposed is bound to have its effect not only on the
accused alone, but also on the society as a whole. Thus, the courts should
consider retributive and deterrent aspect of punishment while imposing the
extreme punishment of death.

81. Wherever, the offence which is committed, manner in which it is
committed, its attendant circumstances and the motive and status of the
victim, undoubtedly bring the case within the ambit of “rarest of rare”
cases and the court finds that the imposition of life imprisonment would be
inflicting of inadequate punishment, the court may award death penalty.
Wherever, the case falls in any of the exceptions to the “rarest of rare”
cases, the court may exercise its judicial discretion while imposing life
imprisonment in place of death sentence.”
19. It is thus well settled, “the Court would consider the cumulative
effect of both the aspects (namely aggravating factors as well as
mitigating circumstances) and it may not be very appropriate for the Court
to decide the most significant aspect of sentencing policy with reference
to one of the classes completely ignoring other classes under other heads
and it is the primary duty of the Court to balance the two.” Further, “it
is always preferred not to fetter the judicial discretion by attempting to
make excessive enumeration, in one way or another; and that both aspects
namely aggravating and mitigating circumstances have to be given their
respective weightage and that the Court has to strike the balance between
the two and see towards which side the scale/balance of justice tilts.”
With these principles in mind we now consider the present review petition.
20. The material placed on record shows that after the Judgment under
review, the petitioner has completed Bachelors Preparatory Programme
offered by the Indira Gandhi National Open University enabling him to
prepare for Bachelor level study and that he has also completed the Gandhi
Vichar Pariksha and had participated in drawing competition organized
sometime in January 2016. It is asserted that the jail record of the
petitioner is without any blemish. The matter is not contested as regards
Conditions 1, 2, 5, 6 and 7 as stated in paragraph 206 of the decision in
Bachan Singh (supra) but what is now being projected is that there is a
possibility of the accused being reformed and rehabilitated. Though these
attempts on part of the petitioner are after the Judgment under review, we
have considered the material in that behalf to see if those circumstances
warrant a different view. We have given anxious consideration to the
material on record but find that the aggravating circumstances namely the
extreme depravity and the barbaric manner in which the crime was committed
and the fact that the victim was a helpless girl of four years clearly
outweigh the mitigating circumstances now brought on record. Having taken
an overall view of the matter, in our considered view, no case is made out
to take a different view in the matter. We, therefore, affirm the view
taken in the Judgment under review and dismiss the present Review
Petitions.
..………………………J.
(Dipak Misra)

…………..…..…………J.
(Rohinton Fali Nariman)

…………..……..……..J.
(Uday Umesh Lalit)

New Delhi,
May 03, 2017
———————–
[1]

[2] (2014) 9 SCC 737
[3]

[4] (2015) 1 SCC 253
[5]

[6] (1980) 2 SCC 684
[7]

[8] 33 L.Ed. 2d 346 = 408 US 238 (1972)
[9]

[10](1983) 3 SCC 470
[11]

[12] (1977) 3 SCC 68
[13]

[14](1989) 3 SCC 5
[15]

[16] (1991) 4 SCC 341
[17]

[18] (1989) 3 SCC 33
[19]

[20] (2016) 9 SCALE 600
[21]

[22] (1977) 3 SCC 218
[23]

[24] (2011) 13 SCC 706
[25]

[26] (2012) 4 SCC 257

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