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Thursday, March 31, 2011



                     IN THE SUPREME COURT OF INDIA


                   CIVIL APPEAL NOS.2795-2796  OF 2011

               [Arising out of SLP [C] Nos.18211-18212 of 2010]

K.K.Velusamy                                                         ... Appellant


N.Palanisamy                                                         ... Respondent

                                  J U D G M E N T


       Leave granted.

2.     The  respondent  herein   has  filed  a  suit for  specific  performance   (OS

No.48/2007) alleging  that the appellant-defendant  entered  into a registered

agreement   of   sale   dated   20.12.2006   agreeing   to   sell   the   suit   schedule

property   to   him,   for   a   consideration   of   Rs.240,000/-;   that   he   had   paid

Rs.160,000/- as advance on the date of agreement; that the appellant agreed

to execute a sale deed by receiving the balance of Rs.80,000/- within three

months from the date of sale; that he was ready and willing to get the sale

completed and issued a notice dated 16.3.2007 calling upon the appellant to


execute the sale deed on 20.3.2007; and that he went to the Sub-Registrar's

office on 20.3.2007 and waited, but the appellant did not turn up to execute

the   sale   deed.   On   the   said   averments,   the   respondent   sought   specific

performance of the agreement of sale or alternatively refund of the advance

of Rs.160,000/- with interest at 12% per annum from 20.12.2006.

3.     The   appellant   resisted   the   suit.   He   alleged   that   he   was   in   need   of

Rs.150,000 and approached the respondent who was a money lender, with a

request to advance him the said amount as a loan; that the respondent agreed

to   advance   the   loan   but   insisted   that   the   appellant   should   execute   and

register a sale agreement in his favour and also execute some blank papers

and blank stamp-papers, as security for the repayment of the amount to be

advanced; and that trusting the respondent, the appellant  executed the said

documents   with   the   understanding   that   the   said   documents   will   be   the

security for the repayment of the loan with interest. The appellant therefore

contended   that   the   respondent   -   plaintiff   was   not   entitled   to   specific


4.     The suit was filed on 26.3.2007. The written statement  was filed on

12.9.2007. Thereafter issues were framed and both parties led evidence. On

11.11.2008   when   the   arguments   were   in   progress,   the   appellant   filed   two


applications (numbered as IA No.216/2009 and IA No.217/2009). The first

application   was   filed   under   section   151   of   the   Code   of   Civil   Procedure

(`Code' for short) with a prayer to reopen the evidence for the purpose of

further   cross-examination   of   Plaintiff   (PW1)   and   the   attesting   witness

Eswaramoorthy (PW2). IA No.217/2009 was filed under Order 18 Rule 17

of   the   Code   for   recalling   PWs.1   and   2   for   further   cross   examination.   The

appellant   wanted   to   cross-examine   the   witnesses   with   reference   to   the

admissions made during some conversations, recorded on a compact disc (an

electronic record). In the affidavits filed in support of the said applications,

the   appellant   alleged   that   during   conversations   among   the   appellant,

respondent and three others (Ponnuswamy alias Krishnamoorthy, Shiva and

Saravana   Kumar),   the   respondent-plaintiff   admitted   that   Eswaramoorthy

(PW2) had lent the amount (shown as advance in the agreement of sale) to

the appellant through the respondent; and that during another conversation

among   the   appellant,   Eswaramoorthy   and   Shiva,   the   said   Eswaramoorthy

(PW2)   also   admitted   that   he   had   lent   the   amount   (mentioned   in   the

agreement of sale advance) through the respondent; that both conversations

were   recorded   by   a   digital   voice   recorder;   that   conversation   with   plaintiff

was   recorded   on   27.10.2008   between   8   a.m.   to   9.45   a.m.   and   the

conversation with Eswaramoorthy was recorded on 31.10.2008 between 7 to


9.50   p.m.;   and   that   it   was  therefore   necessary   to   reopen   the   evidence   and

further cross-examine PW1 and PW2 with reference to the said admissions

(electronically recorded evidence) to demonstrate that the agreement of sale

was only a security for the loan. It is stated that the Compact Disc containing

the   recording   of   the   said   conversations   was   produced   along   with   the   said


5.      The   respondent   resisted   the   said   applications.   He   denied   any   such

conversations or admissions. He alleged that the recordings were created by

the appellant with the help of mimicry  specialists and Ponnuswamy, Shiva

and Saravana Kumar. He contended that the application was a dilatory tactic

to drag on the proceedings.

6.      The   trial   court,   by   orders   dated   9.9.2009,   dismissed   the   said

applications.   The   trial   court   held   that   as   the   evidence   of   both   parties   was

concluded and the arguments  had also been heard in part, the applications

were intended only to delay the matter. The revision petitions filed by the

appellant challenging the said orders, were dismissed by the High Court by a

common  order dated 7.4.2010, reiterating  the reasons assigned by the trial

court.   The   said   order   is   challenged   in   these   appeals   by   special   leave.   The


only   question   that   arises   for   consideration   is   whether   the   applications   for

reopening/recalling ought to have been allowed.

7.     The   amended   definition   of   "evidence"   in   section   3   of   the   Evidence

Act, 1872 read with the definition of "electronic record" in section 2(t) of

the Information Technology Act 2000, includes  a compact disc containing

an electronic record of a conversation. Section 8 of Evidence Act provides

that the conduct of any party, or of any agent to any party, to any suit, in

reference to such suit, or in reference to any fact in issue therein or relevant

thereto, is relevant, if such conduct influences or is influenced by any fact in

issue or relevant fact, and whether it was previous or subsequent thereto.  In

R.M Malkani vs. State of Maharastra - AIR 1973 SC 157, this court made it

clear that electronically recorded conversation is admissible in evidence, if

the conversation is relevant to the matter in issue and the voice is identified

and the accuracy of the recorded conversation is proved by eliminating the

possibility of erasure, addition or manipulation. This Court further held that

a   contemporaneous   electronic   recording   of   a   relevant   conversation   is   a

relevant   fact   comparable   to   a   photograph   of   a   relevant   incident   and   is

admissible   as   evidence   under  Section   8  of  the   Act.     There   is   therefore   no

doubt that such electronic record can be received as evidence.


8.      Order 18 Rule 17 of the Code enables the court, at any stage of a suit,

to recall any witness who has been examined (subject to the law of evidence

for the time being in force) and put such questions to him as it thinks fit. The

power to recall any witness under Order 18 Rule 17 can be exercised by the

court either on its own motion or on an application filed by any of the parties

to   the   suit   requesting   the   court   to   exercise   the   said   power.   The   power   is

discretionary and should be used sparingly in appropriate cases to enable the

court to clarify any doubts it may have in regard to the evidence led by the

parties. The said power is not intended to be used to fill up omissions in the

evidence   of   a   witness   who   has   already   been   examined.   [Vide  Vadiraj

Naggappa   Vernekar   v.   Sharadchandra   Prabhakar   Gogate   -  2009   (4)

SCC   410].   Order   18   Rule   17   of   the   Code   is   not   a   provision   intended   to

enable   the   parties   to   recall   any   witnesses   for   their   further   examination-in-

chief or cross-examination or to place additional material or evidence which

could not be produced when the evidence was being recorded. Order 18 Rule

17 is primarily a provision enabling the court to  clarify any issue or doubt,

by recalling any witness either suo moto, or at the request of any party, so

that the court itself can put questions and elicit answers. Once a witness is

recalled   for   purposes   of   such   clarification,   it   may,   of   course,   permit   the

parties to assist it by putting some questions.


9.      There is no specific provision in the Code enabling the parties to re-

open the evidence for the purpose of further examination-in-chief or cross-

examination.   Section   151   of   the   Code   provides   that   nothing   in   the   Code

shall be deemed to limit or otherwise affect the inherent powers of the Code

to make such orders as may be necessary for the ends of justice or to prevent

the   abuse   of   the   process   of   the   court.   In   the   absence   of   any   provision

providing   for   re-opening   of   evidence   or   recall   of   any   witness   for   further

examination   or   cross-examination,   for   purposes   other   than   securing

clarification required by the court, the inherent power under section 151 of

the Code, subject to its limitations, can be invoked in appropriate cases to re-

open   the   evidence   and/or   recall   witnesses   for   further   examination.   This

inherent power of the court is not affected by the express power conferred

upon the court under Order 18 Rule 17 of the Code to recall any witness to

enable the court to put such question to elicit any clarifications.

10.     The   respondent   contended   that   section   151   cannot   be   used   for   re-

opening evidence or for recalling  witnesses. We are not able to accept the

said submission as an absolute proposition. We however agree that section

151   of   the   Code   cannot   be   routinely   invoked   for   reopening   evidence   or

recalling   witnesses.   The   scope   of   section   151   has   been   explained   by   this

Court in several decisions (See  :  Padam Sen vs. State of UP-AIR 1961 SC


218; Manoharlal Chopra vs. Seth Hiralal - AIR 1962 SC 527; Arjun Singh

vs. Mohindra Kumar - AIR 1964 SC 993; Ram Chand and Sons Sugar Mills

(P) Ltd. vs. Kanhay Lal - AIR 1966 SC 1899; Nain Singh vs. Koonwarjee -

1970 (1) SCC 732;  The Newabganj Sugar Mills Co.Ltd. vs. Union of India -

AIR   1976   SC   1152;            Jaipur   Mineral   Development   Syndicate   vs.

Commissioner  of Income Tax, New  Delhi - AIR 1977 SC 1348;   National

Institute of Mental Health & Neuro   Sciences vs. C Parameshwara  - 2005

(2) SCC 256; and  Vinod Seth vs. Devinder Bajaj  - 2010 (8) SCC 1).   We

may summarize them as follows:

(a)     Section   151   is   not   a   substantive   provision   which  creates  or   confers

any power or jurisdiction  on courts. It merely  recognizes the discretionary

power inherent in every court as a necessary corollary for rendering justice

in accordance with law, to do what is `right' and undo what is `wrong', that

is, to do all things necessary to secure the ends of justice and prevent abuse

of its process.

(b)     As   the   provisions   of   the   Code   are   not   exhaustive,   section   151

recognizes   and   confirms   that   if   the   Code   does   not   expressly   or   impliedly

cover   any   particular   procedural   aspect,   the   inherent   power   can   be   used   to

deal   with   such   situation   or   aspect,   if   the   ends   of   justice   warrant   it.   The

breadth of such power is co-extensive with the need to exercise such power

on the facts and circumstances.


(c)    A  Court  has   no   power  to   do  that   which  is   prohibited   by   law  or  the

Code,   by   purported   exercise   of   its   inherent   powers.   If   the   Code   contains

provisions   dealing   with   a   particular   topic   or   aspect,   and   such   provisions

either expressly or necessary implication exhaust the scope of the power of

the court or the jurisdiction that may exercised in relation to that matter, the

inherent   power   cannot   be   invoked   in   order   to   cut   across   the   powers

conferred   by   the   Code   or   a   manner   inconsistent   with   such   provisions.   In

other words the court cannot make use of the special provisions of Section

151 of the Code, where the remedy or procedure is provided in the Code.

(d)    The inherent powers of the court being complementary to the powers

specifically   conferred,   a  court   is   free   to   exercise   them   for   the   purposes

mentioned in Section 151 of the Code when the matter is not covered by any

specific provision in the Code and the exercise of those powers would not in

any way be in conflict with what has been expressly provided in the Code or

be against the intention of the Legislature.

(e)    While   exercising   the   inherent   power,   the   court   will   be   doubly

cautious,   as   there   is   no   legislative   guidance   to   deal   with   the   procedural

situation and the exercise of power depends upon the discretion and wisdom

of the court, and the facts and circumstances of the case. The absence of an

express provision in the code and the recognition and saving of the inherent

power of a court, should not however be treated as a carte blanche to grant

any relief.

(f)    The   power   under   section   151   will   have   to   be   used   with

circumspection and care, only where it is absolutely necessary, when there is

no provision in the Code governing the matter, when the bona fides of the


applicant   cannot   be   doubted,   when   such   exercise   is   to   meet   the   ends   of

justice and to prevent abuse of process of court.

11.     The Code earlier had a specific provision in Order 18 Rule 17A for

production of evidence not previously known or the evidence which could

not be produced despite due diligence. It enabled the court to permit a party

to   produce   any   evidence   even   at   a   late   stage,   after   the   conclusion   of   his

evidence   if   he   satisfied   the   court   that   even   after   the   exercise   of   due

diligence,   the   evidence   was   not   within   his   knowledge   and   could   not   be

produced   by   him   when   he   was   leading   the   evidence.   That   provision   was

deleted  with effect from 1.7.2002. The  deletion  of the  said provision does

not   mean   that   no   evidence   can   be   received  at   all,  after   a   party   closes   his

evidence.   It   only   means   that   the   amended   structure   of   the   Code   found   no

need   for   such   a   provision,   as   the   amended   Code   contemplated   little   or   no

time   gap   between   completion   of   evidence   and   commencement   and

conclusion   of   arguments.   Another   reason   for   its   deletion   was   the   misuse

thereof   by   the   parties   to   prolong   the   proceedings   under   the   pretext   of

discovery of new evidence.

12.     The  amended  provisions  of the Code  contemplate and  expect a trial

court   to   hear   the   arguments   immediately   after   the   completion   of   evidence


and   then   proceed   to   judgment.   Therefore,   it   was   unnecessary   to   have   an

express provision for re-opening the evidence to examine a fresh witness or

for recalling any witness for further examination. But if there is a time gap

between   the   completion   of   evidence   and   hearing   of   the   arguments,   for

whatsoever   reason,   and   if   in  that   interregnum,  a  party   comes   across  some

evidence   which   he   could   not   lay   his   hands   earlier,   or   some   evidence   in

regard to the conduct or action of the other party comes into existence, the

court may in exercise of its inherent power under section 151 of the Code,

permit the production of such evidence if it is relevant and necessary in the

interest of justice, subject to such terms as the court may deem fit to impose.

13.     The learned counsel for respondent contended that once arguments are

commenced,   there   could  be   no  re-opening   of  evidence   or   recalling   of  any

witness.   This   contention   is   raised   by   extending   the   convention   that   once

arguments   are   concluded   and   the   case   is   reserved   for   judgment,   the   court

will   not   entertain   any   interlocutory   application   for   any   kind   of  relief.   The

need for the court to act in a manner to achieve the ends of justice (subject to

the need to comply with the law) does  not end when arguments are heard

and judgment is reserved. If there is abuse of the process of the court, or if

interests   of   justice   require   the   court   to   do   something   or   take   note   of

something,   the   discretion   to   do   those   things   does   not   disappear   merely


because the arguments are heard, either fully or partly. The convention that

no application should be entertained once the trial or hearing is concluded

and the case is reserved for judgment is a sound rule, but not a straitjacket

formula.   There   can   always   be   exceptions   in   exceptional   or   extra-ordinary

circumstances, to meet the ends of justice and to prevent abuse of process of

court,   subject   to   the   limitation   recognized   with   reference   to   exercise   of

power   under   section   151   of  the   Code.   Be   that   as   it   may.   In   this   case,   the

applications were made before the conclusion of the arguments.

14.     Neither   the   trial   court   nor   the   High   court   considered   the   question

whether   it   was   a   fit   case   for   exercise   of   discretion   under   section   151   or

Order   18   Rule   17   of   the   Code.   They   have   not   considered   whether   the

evidence sought to be produced would either assist in clarifying the evidence

led on the issues or lead to a just and effective adjudication. Both the courts

have   mechanically   dismissed   the   application   only   on   the   ground   that   the

matter was already at the stage of final arguments and the application would

have the effect of delaying the proceedings.

15.     The   appellant   -   defendant   has   taken   a   consistent   stand   in   his   reply

notice,   written   statement   and   evidence   that   the   agreement   of   sale   was

executed   to   secure   a   loan   of   Rs.150,000,   as   the   respondent   insisted   upon


execution   and   registration   of   such   agreement.   If   after   the   completion   of

recording   of   evidence,   PW1   and   PW2   had   admitted   during   conversations

that the amount paid was not advance towards sale price, but only a loan and

the agreement of sale was obtained to secure the loan, that would be material

evidence   which   came   into   existence   subsequent   to   the   recording   of   the

depositions,   having   a   bearing   on   the   decision   and   will   also   clarify   the

evidence   already   led   on   the   issues.   According   to   the   appellant,   the   said

evidence   came   into   existence   only   on   27.10.2008   and   31.10.2008,   and   he

prepared the applications and filed them at the earliest, that is on 11.11.2008.

As defendant  could not have produced this material  earlier and if the said

evidence, if found valid and admissible, would assist the court to consider

the evidence in the correct perspective or to render justice, it was a fit case

for   exercising   the   discretion   under   section   151   of   the   Code.   The   courts

below have not applied their minds  to the question whether such evidence

will be relevant and whether the ends of justice require permission to let in

such evidence. Therefore the order calls for interference.

16.    We may add a word of caution. The power under section 151 or Order

18 Rule 17 of the Code is not intended to be used routinely, merely for the

asking. If so used, it will defeat the very purpose of various amendments to

the Code to expedite trials.  But where the application is found to be bona


fide and where the additional evidence, oral or documentary, will assist the

court to clarify the evidence on the issues and will assist in rendering justice,

and   the   court   is   satisfied   that   non-production   earlier   was   for   valid   and

sufficient   reasons,   the   court   may   exercise   its   discretion   to   recall   the

witnesses or permit the fresh evidence. But if it does so, it should ensure that

the   process   does   not   become   a   protracting   tactic.   The   court   should   firstly

award   appropriate   costs   to   the   other   party   to   compensate   for   the   delay.

Secondly the court should take up and complete the case within a fixed time

schedule so that the delay is avoided. Thirdly if the application is found to

be mischievous, or frivolous, or to cover up negligence or lacunae, it should

be rejected with heavy costs. If the application is allowed and the evidence is

permitted   and   ultimately   the   court   finds   that   evidence   was   not   genuine   or

relevant   and   did   not   warrant   the   reopening   of   the   case   recalling   the

witnesses, it can be made a ground for awarding exemplary costs apart from

ordering prosecution if it involves fabrication of evidence. If the party had

an opportunity to produce such evidence earlier but did not do so or if the

evidence   already   led   is   clear   and   unambiguous,   or   if   it   comes   to   the

conclusion   that   the   object   of   the   application   is   merely   to   protract   the

proceedings, the court should reject the application. If the evidence sought to

be   produced   is   an   electronic   record,   the   court   may   also   listen   to   the


recording before granting or rejecting the application.

17.     Ideally, the recording of evidence should be continuous, followed by

arguments, without any gap. Courts should constantly endeavour to follow

such a time schedule. The amended Code expects them to do so. If that is

done,   applications   for   adjournments,   re-opening,   recalling,   or   interim

measures could be avoided. The more the period of pendency, the more the

number   of   interlocutory   applications   which   in   turn   add   to   the   period   of


18.     In   this   case,   we   are   satisfied   that   in   the   interests   of   justice   and   to

prevent   abuse   of   the   process   of   court,   the   trial   court   ought   to   have

considered   whether   it   was  necessary   to   re-open   the   evidence   and   if   so,   in

what   manner   and   to   what   extent   further   evidence   should   be   permitted   in

exercise of its power under section  151 of the Code.     The  court ought to

have also considered whether it should straightway recall PW1 and PW2 and

permit   the   appellant   to   confront   the   said   recorded   evidence   to   the   said

witnesses  or  whether   it  should   first  receive  such  evidence   by   requiring   its

proof   of   its   authenticity   and   only   then   permit   it   to   be   confronted   to   the

witnesses (PW1 and PW2).


19.      In view of the above, these appeals are allowed in part. The orders of

the   High   Court   and   Trial   Court   dismissing   IA   No.   216/2009   under

section 151 of the Code are set aside. The orders are affirmed in regard to

the dismissal of IA No.217/2009 under Order 18 Rule 17 of the Code. The

trial   court   shall   now   consider   IA   No.216/2009   afresh   in   accordance   with



                                                           (R. V. Raveendran)

New Delhi;                                                 ............................J.

March 30, 2011.                                            (A. K. Patnaik)


Wednesday, March 30, 2011





             CRIMINAL APPEAL NO. 1511 OF 2003

Mehboob Batcha & Ors.                                 ..         Appellant(s)


State Rep. by Supdt. of Police                        ..          Respondent

                            J U D G M E N T


      "Bane hain ahal-e-hawas muddai bhi

                              munsif bhi

       Kise vakeel karein kisse munsifi



      --  Faiz Ahmed Faiz

1.     If ever there was a case which cried out for death penalty it is this one,

but it is deeply regrettable that not only was no such penalty imposed but not


even a charge under Section 302 IPC was framed against the accused by the

Courts below.

2.      Heard learned counsel for the parties.

3.      The facts in detail have been stated in the impugned judgment of the

High Court as well as of the trial court and hence we are not repeating the

same here, except where necessary.

4.      The   appellants   are   policemen   who   wrongfully   confined   one

Nandagopal   in   police   custody   in   Police   Station   Annamalai   Nagar   on

suspicion of theft from 30.5.1992 till 2.6.1992 and beat him to death there

with lathis, and also gang raped his wife Padmini in a barbaric manner.  The

accused also confined several other persons (who were witnesses) and beat

them in the police station with lathis.

5.      Both   the   trial   Court   and   the   High   Court   have   found   the   appellants

guilty   and   we   see   no   reason   to   disagree   with   their   verdict.     To   prove   the

charges the prosecution examined as many as 37 witnesses, and they have

proved the guilt of the accused beyond reasonable doubt.

6.      PW1   Padmini   has   given   her  evidence   in   great   detail   and   we   see   no

reason to disbelieve the same.   We have read her evidence which discloses


the   inhuman   and   savage   manner   in   which   the   accused,   who   were   police

personnel, treated Nandagopal and Padmini.  We may quote just parts of her

testimony which are as follows :

              ......."on Sunday at about 1.00 p.m. two policemen came

              in an auto to my house.  They are A3, A6 and A8.  All of

              them beat me by lathis on my buttocks.   A3 caught hold

              of my leg and pulled me saying get into the auto.   I ran

              outside.   Two autos came and in one auto Subramaniam

              and   Nandagopal   were   sitting   with   handcuffs   jointly.

              Unable to bear pain I sat by their side.  The auto went to

              Annamalai Nagar police station and they asked me to go

              inside   and   I   went   inside.   A6   beat   me   up.     I   was

              surrounded by 4, 5 persons who were beating me.  At that

              time my jacket (blouse) was torn.  Some one tore off my

              jacket   and   I   do   not   remember   as   to   who   tore   off   that

              jacket.  They said `you will not bear any more and go and

              sit'   I   sat   in   the   corner   where   the   Head   constable   was

              sitting earlier.   Some time afterwards two women police

              came there.   Thinking that I would be let off, I stated to

              them   that   I   took   oleander   seeds,   for   that   the   women

              police gave me water mixed with tamarind and soap and

              asked me to drink it.   That night myself and the women

              police   were   lying   down   in   the   room   where   the   Sub

              Inspector of Police was sitting and in the early morning

              the   women   police   went   out.     My   husband's   sister's

              daughter   by   name   Priya   gave   coffee.     I   could   talk

              anything.   I ate idly.   My husband told me why you are

              coming here, I am being tortured by them.  I told him that

              they would not do anything and they would let you free.

              At   that   time   a   policeman   came   and   told   `what   are   you

              talking to her', and saying so he kicked him and pushed

              him   down.     A6,   beat   my   husband   and   kept   him   in   the

              lock   up.     Subramani,   Kolanchi   and   Subramaniam   were

              also in the lock up.  Then I was given good meals and my

              husband   was   given   waste   food.     Therefore   I   gave   my

              food  to   Nandagopal.     For   that   A1  said   you   should   take

              that food and be good and why did you give it him, by


saying so he beat me by lathi.  In the evening all of them

jointly discussed with themselves saying that each one of

them should give Rs.50/- for giving a party.   One police

man asked for what purpose you are giving a party and

one   police   man   whispered   some   thing   in   his   ear.     On

hearing   that,   he   asked   were   you   not   born   with   your

sisters, and saying so he left that place.   On Monday at

about 8.00 pm night, Nandagopal was brought out from

the lock up.  A6 told that he should see some one has to

remove my saree.   He called the accused Kolanchi from

the lock up and asked him to remove my saree.  He was

holding   my   palla,   but   I   was   holding   it   tightly   without

leaving it.  The said Kolanchi told that he should not pull

it.   Immediately  the first accused  beat him with a lathi.

Then after beating him, he asked him to get to the side of

the   open   court   yard.     Immediately   A3   came   to   remove

my saree.  A3 removed the entire saree of mine.  At that

time I was wearing petty coat and jacket.   A1, A3, A6,

A8 and A10 removed my jacket and petty coat and made

me nude.   They asked me to run through the court yard

and beat me and I fell down.  All the five accused person

one by one embarrassed me and kissed me.   Then I fell

down.   At that time one said `your private part is big in

size, cannot you bear this pain'.  I cried and asked him to

stop   beating.     At   that   time   some   one   came   there   in

connection   with   a   case.     They   said   not   to   say   this   to

anyone outside.   I wrapped the saree over the body and

sat.  At that time two women police came there.  I stated

to them what had happened.   They said that no one will

beat   you   hereafter,   and   I   went   to   lie   down   along   with

them  in  a   room.    In  the   early   morning   on   Tuesday   one

Senthil   came  and   brought   coffee.     Senthil   is   the   son   of

my husband's sister.   On that evening my husband was

taken outside and brought to the police station along with

Rani,   Dandapani.     Rani   is   the   younger   sister   of

Nandagopal.   Dandapani is the husband of Rani.   When

Dandapani was asked about the tape recorder, he showed

a bill of a shop where he purchased it.  For that the police

said   `why   are   you   telling   a   lie'.     Yesterday   we   have

removed   the   saree   of   the   wife   of   Nandagopal   and   saw,


and   it   would   be   proper   if   we   remove   the   saree   of   your

wife.     At   that   time   there   were   bleeding   injuries   on   the

back,   leg   and   shoulder   of   Nandagopal   and   blood   was

oozing out in strips.  Police stated like that.  My husband

sustained injury on account of beatings by the police A1,

A3, A6, A8 and A10 beat my husband.   Then the police

asked   Rani   and   Dandapani   to   go   to   their   house.     On

Tuesday   night   two   women   police   came   to   the   police

station.  They were talking with each other as to whether

any   clothes   have   been   brought   for   staying   in   the   night.

Along   with   them   one   male   police   came   and   asked

whether   they   had   seen   Tamil   picture   `Sembaruthi'.     I

asked them not to leave me alone and asked them to take

me   along   with   them.     They   said   they   would   not   do

anything, by saying so those two women police went out.

I   cannot   identify   those   police   properly   and   I   do   not

remember  their names.    On Tuesday at about 10.30 pm

my husband  Nandagopal was brought  to the  open court

yard   from   the   lock   up.     Myself   and   Nandagopal   were

brought to a room opposite to the open court yard.   My

husband was kept in a standing position on the wall and

beaten up by them.  A6 Dhass pulled out my saree.  A10

removed   my   jacket   and   petty   coat   and   made   me   to

become nude and I was beaten and pushed down.  My leg

had stuck into a bench and I could not remove it.  At that

time   the   2nd  accused   Sub-Inspector   of   police   came   to

Annamalai Nagar police station.   He said that he would

go first.   At that time he used rubber loop at the genital

organ and committed rape on me.   A2, A3, A6, A8 and

A10   also   raped   me   forcibly.     All   of   them   have   used

rubber loop.  All of them raped me in the presence of my

husband.  At that time my husband Nandagopal requested

them not to do harm to my wife, and leave her.   At that

time A6 beat Nandagopal with lathi  on his genital  part.

He fell down.   He asked water by gesture.   At that time

after wrapping the saree over my body I took water from

the pot.  At that time the said five police men surrounded

me   and   said   if   you   want   to   give   water   to   Nandagopal,

you should give a kiss to everyone.  Then I gave kisses to

all the five.   When I went to take water to my husband,


they threw it away.  That fell down.  With an intention to

spoil me again, they pulled me and I said I cannot come

and leave me, by saying so I sat down.   When A6 came

and   tried   to   force   me,   I   fell   on   his   leg   and   bit.     On

account   of   the   sexual   intercourse,   I   sustained   bleeding

injuries   on   the   breast   and   genital   organ   and   then   I   fell

unconscious.     When   I   woke   up   after   regaining

consciousness, the clothes were wrapped halfly.   I said I

wanted to see my husband.  I was brought outside saying

that my husband was sent to court.  One of the policemen

asked me to get into the van.  I was kept at Chidambaram

police station.  They offered me idli and coffee.  I ate it.

One  lady  police  was with me.    All the  other  policemen

went out with lathis.   The woman police who was with

me stated that there was students' agitation and some one

was done to death at Annamalai Nagar Police Station.   I

wept   and   then   I   was   left   out.     I   asked   the   auto   man   at

Mariamman temple to take me in the auto.  He asked me

whether I am the wife of Nandagopal, I said yes.  He said

that   Nandagopal   was   done   to   death   by   the   police   and

asked   me   not   to   go   there.     Then   I  went   to   court   in   the

auto.   This occurrence was talked in court.   Then I went

to   Tahsildar's   office   immediately.     I   stated   what   had

happened   there.     The   Officers   have   gone   to  take   action

and they asked me to be here.  I was sitting there.  I went

to Annamalai Nagar police station in a Jeep.  There was a

crowd there.  I cried saying that not only I was raped by

five persons but they also assaulted my husband and done

him to death.  One of the police men who raped me was

standing  there.    I beat him with a chappal.    He is A10.

R.D.O. was there.  He asked me what had happened and I

said what had happened.  I fell down unconscious.  Then

I was taken to the hospital.   At about 1.00 pm one male

doctor examined me.  Then I came to the police station at

Annamalai   Nagar   and   gave   my   statement.     That   was

recorded   by   them.     Ex.P.1   is   the   statement   typed   by

R.D.O. and obtained my signature therein.   Then I went

to the house of my mother in law.  Nandagopal was lying

dead.     I   was   weeping.     At   that   time   Balakrishnan,

Jankirani   and   politicians   came   there.     I   stated   to   them


            what   had   happened.     Balakrishnan   is   the   District

            Secretary   of   Communist   Party,   Janki   Rani   is   the

            President of All Indian Madhar Sangam at Chidambaram.

            Janki Rani is the wife of Balakrishnan.  I gave a petition

            to the R.D.O. to send me to the hospital that is Ex.P.2.  I

            was   admitted   in   the   hospital   at   about   11.00   pm   in   the

            night.     On   the   next   day   at   about   7   or   7.30   am   I   was

            examined   by   a   lady   doctor.     After   coming   from   the

            hospital,   on   Thursday   evening   my   husband   was   buried.

            On   5.6.1992   I   sent   a   petition   to   the   District

            Superintendent   of  Police.     After  I came  to  my  house,  a

            police   officer   came   to   my   house.     I   have   stated   to   him

            what had happened.".........                          

7.    Padmini also stated :

            ..........."The   two   police   asked   me   to   come   to   the   rest

            room.     Then   at   the   same   time   three   police   without   any

            uniform came inside.  Then I cried in front of the lock up

            where my husband was kept inside saying that are calling

            me,   but   no   one   to   help   me.     My   husband   was   brought

            from   the   lock   to   the   open   court   yard   with   handcuff.     I

            cried   to   the   police   by   kneeling   down.     At   that   time

            Subramaniam asked them not to do anything to my sister

            and not to beat my friend.  Then they removed the jacket

            and saree and made me to become nude in the open yard

            and squeezed my breast and bit and the old aged police

            hit against  my private  part  with a stick  saying  that it is

            very big and I have to see how long it would go.........

            ........Five police men came smelling of Brandy in their

            mouth.  My husband was beaten while he was taken from

            the lock up and myself and my husband were kept in a

            room   where   the   rice   bags   were   kept.     I   was   made   to

            become   nude.     My   husband   cried   to   the   police   with

            handcuff to release him.   The police kicked my husband

            on his chest.  You would be alive only tonight and if you

            want you can enjoy.  By saying so they hit him with gun.

            At that time Sub-Inspector stated that others can do only


                if I say because I am the officer here and so I will do first

                and other can afterwards, and by saying so he raped me.

                I raised a noise saying I am having much pain and asked

                him to leave me and the other police men were beating

                my   husband.     My   husband   asked   them   to   remove   the

                handcuff put on him.  They did not do so.  After finishing

                the work, Sub Inspector went away  and asked others to

                do   the   same   and   he   would   see   whether   anybody   is

                coming and asked them to finish the work.   I was asked

                to   lie   facing   up,   one   of   them   was   holding   my   leg   and

                another  one  was  holding  the  hand  and  another  one  was

                lying on me and had intercourse with me.   Like that all

                the five persons spoiled me."..........      

8.      We   see   no   reason   to   disbelieve   Padmini's   evidence.     Ordinarily   no

self respecting woman would come forward in Court to falsely make such a

humiliating statement against her honour.

9.      The learned counsel for the accused referred to some discrepancies in

her evidence, but it is well settled that minor discrepancies cannot demolish

the   veracity   of   the   prosecution   case.     In   our   opinion   there   is   no   major

discrepancy in the prosecution case, which is supported by the evidence of a

large   number   of   witnesses,   including   injured   witnesses,   apart   from   the

testimony of Padmini, who identified the accused in the identification parade

held   on   13.8.1992   in   Central   Jail,   Cuddalore.     Although   A10   was   not

identified   by   her,  the  High  Court  has  given  good  reasons  for  holding  him

guilty too, and we agree with the same.


10.    The   Medical   Officer   who   examined   Padmini   found   multiple   nail

scratches on her breasts.  She complained of severe pain in her private parts.

There were multiple abrasions on her vagina and cervix  with discharge of

foul   smelling   fluids.     The   chemical   analysis   of  her   vaginal   smear   showed

plenty   of   pus   cells   and   epithetical   cells.     The   doctors   also   examined

Subramaniam   and   Chidambaranathan   who   were   beaten   by   the   accused

policemen with lathis.

11.    We have held in Satya Narain Tiwari @ Jolly & Anr.  vs.  State of

U.P., JT 2010(12) SC 154 and in Sukhdev Singh  vs.  State of Punjab, SLP

(Criminal)   No.8917   of   2010   decided   on   12.11.2010   that   crimes   against

women are not ordinary crimes committed in a fit of anger or for property.

They are social crimes.  They disrupt the entire social fabric, and hence they

call for harsh punishment.

12.    The horrendous manner in which Padmini was treated by policemen

was shocking and atrocious, and calls for no mercy.        

13.    The post-mortem report of Nandagopal shows the following injuries :

               "I.     A rope like ligature mark centre of neck encircling

               obliquely   upwards.   M   Right   to   left   neck   with   knot   like

               mark  on right neck.    (Size about "1/2  in width O Rope


                mark).     Middle   lateral   aspect.     Underlying   skin   dry

                parchment in colour.  

                II.     An abrasion 1 x 1 cm left cheek.

                III.    An abrasion 3 x 1 cm right hip anterior.

                IV.     An abrasion 2 x 1 cm left leg middle anterior.

                V.      An abrasion 3 x 1 cm right leg middle anterior.

                VI.     An abrasion 2 x 1 cm left arm shoulder posterior


                VII.    An abrasion 2 x 1 cm right arm shoulder posterior


                VIII. An abrasion 2 x 1 cm left elbow antero-medical.

                IX.     An abrasion 2 x 1 cm right elbow posterior lower.

                X.      An abrasion 2 x 1 cm right scrotum lower antero-

                        lateral.     No   underneath   haemotoma   injuries   are

                        ante-mortem in nature.

                XI.     Tongue   bitten   in   between   the   teeth   partially

                        protruded outside.

                The post-mortem certificate contains the final opinion of

                the doctor that Nandagopal died on asphyxial death due

                to   atypical   hanging   about   10   to   24   hours   prior   to   post-


14.     The   above   injuries   show   the   horrible   manner   in   which   Nandagopal

was beaten and killed in police custody.  In her evidence Padmini stated that

on   the  evening   of  Sunday,   "Four   policemen   beat  my   husband   with  sticks.

They kicked my husband with boots on his chest."  She also stated "At that

time there were bleeding injuries on back leg and shoulder (of Nandagopal)

and   blood   was   oozing   out   and   found   in   strip   form".     Even   when   she   was

being raped by the policemen Nandagopal was beaten.


15.    We are surprised that the accused were not charged under Section 302

IPC   and   instead   the   Courts   below   treated   the   death   of   Nandagopal   as

suicide.     In   fact   they   should   have   been   charged   under   that   provision   and

awarded death sentence, as murder by policemen in police custody is in our

opinion in the category of rarest of rare cases deserving death sentence, but

surprisingly no charge under Section 302 IPC was framed against any of the

accused.  We are constrained to say that both the trial Court and High Court

have failed in their duty in this connection.

16.    The   entire   incident   took   place   within   the   premises   of   Annamalai

Nagar police station and the accused deserve no mercy.

17.    In   this   appeal   the   appellant   no.1   has   been   given   the   sentence   of   3

years rigorous imprisonment and a fine, while the other appellants have been

given sentence of 10 years rigorous imprisonment with a fine.

18.    In the normal course, we could have issued notice of enhancement of

sentence,   but as  no  charge  under  Section  302  IPC  was framed, we  cannot

straightaway   record   conviction   under   that   provision   and   enhance   the


19.    For the reasons given above this appeal is dismissed.


20.     Before   parting   with   this   case,   we   once   again   reiterate   that   custodial

violence  in police  custody  is  in violation  of this Court's directive  in  D.K.

Basu  vs.  State of West Bengal 1997(1) SCC 416 and we give a warning to

all   policemen   in   the   country   that   this   will   not   be   tolerated.     The   graphic

description   of  the   barbaric   conduct  of   the   accused   in  this   case   shocks  our

conscience.     Policemen   must   learn   how   to   behave   as   public   servants   in   a

democratic country, and not as oppressors of the people.

21.     In D.K. Basu's case this Court observed :

                .........."Custodial violence, including torture and death in

                the   lock-ups,   strikes   a   blow   at   the   rule   of   law,   which

                demands that the powers of the executive should not only

                be   derived   from   law   but   also   that   the   same   should   be

                limited by law. Custodial violence is a matter of concern.

                It   is   aggravated   by   the   fact   that   it   is   committed   by

                persons   who   are   supposed   to   be   the   protectors   of   the

                citizens. It is committed under the shield of uniform and

                authority in the four walls of a police station or lock-up,

                the   victim   being   totally   helpless.   The   protection   of   an

                individual from torture and abuse by the police and other

                law-enforcing   officers   is   a   matter   of   deep   concern   in   a

                free society.

                        In   spite   of   the   constitutional   and   statutory

                provisions aimed at safeguarding the personal liberty and

                life of a citizen, growing incidence of torture and deaths

                in police custody has been a disturbing factor. Experience

                shows   that   worst   violations   of   human   rights   take   place

                during the course of investigation, when the police with a


              view   to   secure   evidence   or   confession   often   resorts   to

              third-degree   methods   including   torture   and   adopts

              techniques of screening arrest by either not recording the

              arrest or describing the deprivation of liberty merely as a

              prolonged   interrogation.   A   reading   of   the   morning

              newspapers   almost   everyday   carrying   reports   of

              dehumanising torture, assault, rape and death in custody

              of   police   or   other   governmental   agencies   is   indeed

              depressing. The increasing incidence of torture and death

              in custody has assumed such alarming proportions that it

              is   affecting   the   credibility   of   the   rule   of   law   and   the

              administration   of   criminal   justice   system.   The

              community   rightly   feels   perturbed.   Society's   cry   for

              justice becomes louder.

                      Custodial death is perhaps one of the worst crimes

              in   a   civilized   society   governed   by   the   rule   of   law.   The

              rights   inherent   in   Articles   21   and   22(1)   of   the

              Constitution   require   to   be   jealously   and   scrupulously

              protected. We cannot wish away the problem. Any form

              of   torture   or   cruel,   inhuman   or   degrading   treatment

              would   fall   within   the   inhibition   of   Article   21   of   the

              Constitution,   whether   it   occurs   during   investigation,

              interrogation   or   otherwise.   If   the   functionaries   of   the

              Government   become   law-breakers,   it   is   bound   to   breed

              contempt for  law and would encourage lawlessness  and

              every man would have the tendency to become law unto

              himself thereby leading to anarchism. No civilized nation

              can   permit   that   to   happen.   Does   a   citizen  shed   off  his

              fundamental right to life, the moment a policeman arrests

              him? Can the right to life of a citizen be put in abeyance

              on   his   arrest?   These   questions   touch   the   spinal   cord   of

              human rights' jurisprudence. The answer, indeed, has to

              be an emphatic `No'."..............

                                                            (emphasis supplied)

22.    Let   a   copy   of   this   order   be   sent   to   Home   Secretary   and   Director

General of Police of all States and Union Territories, who shall circulate the


same to all police officers up to the level of S.H.O. with a directive that they

must follow the directions given by this Court in D.K. Basu's case (supra),

and that custodial violence shall entail harsh punishment.


                                           (Markandey Katju)


                                           (Gyan Sudha Misra)

New Delhi:

March 29, 2011

Sunday, March 20, 2011

involvement in trivial case before employment, is not a bar for getting job


                    IN THE SUPREME COURT OF INDIA


                 CIVIL APPEAL NO(s). 1430 OF 2007

COMMR.OF POLICE AND ORS                       Appellant (s)


SANDEEP KUMAR                                 Respondent(s)

                             O  R  D  E  R

      Heard learned counsel for the parties.

      This   Appeal   has   been   filed   against   the   impugned

judgment of the High Court of Delhi dated 31.07.2006.

      The facts have been given in the impugned judgment and

hence   we  are   not  repeating   the  same   here,  except   wherever


      The   respondent   herein-Sandeep   Kumar   applied   for   the

post   of   Head   Constable   (Ministerial)   in   1999.         In   the

application form it was printed :

      "12(a)   Have   you   ever   been   arrested,   prosecuted
      kept   under   detention   or   bound   down/fined,
      convicted   by   a   court   of   law   for   any   offence
      debarred/disqualified   by   any   Public   Service
      Commission          from           appearing          at         its
      examination/selection   or   debarred   from   any
      Examination, rusticated by any university or any
      other education authority/Institution."

      Against that column the respondent wrote : 'No'.


      It is alleged that this is a false statement made by

the   respondent   because   he   and   some   of   his   family   members

were   involved   in   a   criminal   case   being   FIR   362   under

Section 325/34 IPC. This case was admittedly compromised on

18.01.1998   and   the   respondent   and   his   family   members   were

acquitted on 18.01.1998.

      In response to the advertisement issued in January 1999

for   filing   up   of   certain   posts   of   Head   Constables

(Ministerial), the respondent applied on 24.02.1999 but did

not mention in his application form that he was involved in

the aforesaid criminal case.

      The respondent qualified in all the tests for selection

to the post of temporary Head Constable (Ministerial).   On

03.04.2001   he   filled   the   attestation   form   wherein   for   the

first   time   he   disclosed   that   he   had   been   involved   in   a

criminal   case   with   his   tenant   which,   later   on,   had   been

compromised in 1998 and he had been acquitted.

      On   02.08.2001   a   show   cause   notice   was   issued   to   him

asking the respondent to show cause why his candidature for

the   post  should   not  be   cancelled  because   he  had   concealed

the fact of his involvement in the aforesaid criminal case

and   had   made   a   wrong   statement   in   his   application   form.

The   respondent   submitted   his   reply     on   17.08.2001   and   an

additional reply but the  authorities  were  not  satisfied


with the same and on 29.05.2003 cancelled his candidature.

      The   respondent   filed   a   petition   before   the   Central

Administrative   Tribunal  which   was  dismissed   on  13.02.2004.

Against   that   order   the   respondent   filed   a   writ   petition

which   has   been   allowed   by   the   Delhi   High   Court   and   hence

this appeal.

      The   learned   counsel   for   the   appellants   has   submitted

that   the  respondent   should  have   disclosed  the   fact  of   his

involvement in the criminal case even if he had later been

acquitted. Hence, it was submitted that his candidature was

rightly cancelled.

      We   respectfully   agree   with   the   Delhi   High   Court   that

the   cancellation   of   his   candidature   was   illegal,   but   we

wish to give our own opinion in the matter.

      When   the   incident   happened   the   respondent   must   have

been about 20 years of age. At that age young people often

commit indiscretions, and such indiscretions can often been

condoned.     After   all,   youth   will   be   youth.     They   are   not

expected to behave in as mature a manner as older people.

Hence,   our   approach   should   be   to   condone   minor

indiscretions   made   by   young   people   rather   than   to   brand

them as criminals for the rest of their lives.

      In this connection, we may refer to the character 'Jean

Valjean' in Victor Hugo's novel 'Les Miserables', in which

for committing a minor offence  of stealing a loaf of bread


for his hungry family Jean Valjean was branded as a thief

for his whole life.

     The   modern   approach   should   be   to   reform   a   person

instead of branding him as a criminal all his life.

     We may also here refer to the case of Welsh students

mentioned     by   Lord   Denning   in   his   book   'Due   Process   of

Law'.   It   appears   that   some   students   of   Wales   were   very

enthusiastic   about the Welsh language and they were upset

because   the   radio   programmes   were   being   broadcast   in   the

English language and not in Welsh. Then came up to London

and   invaded   the   High   Court.     They   were   found   guilty   of

contempt of court and sentenced to prison for three months

by the High Court Judge.   They filed an appeal before the

Court   of   Appeals.   Allowing   the   appeal,   Lord   Denning

observed :-

      "I come now to Mr. Watkin Powell's third point.
      He says that the sentences were excessive.  I do
      not think they were excessive, at the time they
      were   given   and   in   the   circumstances   then
      existing. Here was a deliberate interference with
      the   course   of   justice   in   a   case   which   was   no
      concern   of   theirs.     It   was   necessary   for   the
      judge   to   show   -   and   to   show   to   all   students
      everywhere   -   that   this   kind   of   thing   cannot   be
      tolerated.   Let   students   demonstrate,   if   they
      please,   for   the   causes   in   which   they   believe.
      Let them make their protests as they will.   But
      they   must   do   it   by   lawful   means   and   not   by
      unlawful.     If   they   strike   at   the   course   of
      justice  in  this  land  -  and  I speak both for

      England and Wales - they strike at the roots of
      society   itself,   and   they   bring   down   that   which
      protects them. It is only by the maintenance of

      law   and   order   that   they   are   privileged   to   be
      students and to study and live in peace.  So let
      them support the law and not strike it down.

            But   now   what   is   to   be   done?     The   law   has
      been vindicated by the sentences which the judge
      passed on Wednesday of last week.   He has shown
      that law and order must be maintained, and will
      be   maintained.     But   on   this   appeal,   things   are
      changed.   These students here no longer defy the
      law.  They have appealed to this court and shown
      respect for it.  They have already served a week
      in prison.   I do not think it necessary to keep
      them   inside   it   any   longer.     These   young   people
      are no ordinary criminals.  There is no violence,
      dishonesty   or   vice   in   them.     On   the   contrary,
      there was much that we should applaud.  They wish
      to   do   all   they   can   to   preserve   the   Welsh
      language.   Well may they be proud of it.   It is
      the language of the bards - of the poets and the
      singers   -   more   melodious   by   far   than   our   rough
      English tongue.   On high authority, it should be
      equal in Wales with English. They have done wrong
      - very wrong - in going to the extreme they did.
      But, that having been shown, I think we can, and
      should,   show   mercy   on   them.     We   should   permit
      them   to   go   back   to   their   studies,   to   their
      parents   and   continue   the   good   course   which   they
      have so wrongly disturbed."

      [ Vide : Morris  Vs.  Crown Office, (1970) 2 Q.B.
             114 ]

      In   our   opinion,   we   should   display   the   same   wisdom   as

displayed by Lord Denning.

      As   already   observed   above,   youth   often   commit

indiscretions, which are often condoned.

      It is true that in the application form the respondent

did   not   mention   that   he   was   involved   in   a   criminal   case


under Section 325/34 IPC. Probably he did not mention this

out   of   fear   that   if   he   did   so   he   would   automatically   be


      At any event, it was not such a serious offence like

murder,   dacoity   or   rape,   and   hence   a   more   lenient   view

should be taken in the matter.

      For the reasons above given, this Appeal has no force

and it is dismissed.   No costs.

                                            (MARKANDEY KATJU)

                                            (GYAN SUDHA MISRA)
MARCH 17, 2011.