advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Thursday, March 30, 2017

whether a dispute raised by the said employee for setting aside his removal from service on the ground that it was an act of victimization and for reinstatement in service with back wages was one ‘touching the management or business of the society’, within the contemplation of the Co-operative Societies Act. This Court held that the expression ‘any dispute’ referred to in section 96 of the Gujarat Co-operative Societies Act, 1961 did not cover a dispute of the kind raised by the respondent employee against the bank. As a result, this appeal is allowed, the order of the High Court is set aside and the Division Bench judgment, on which reliance is placed by the High Court in the impugned judgment, is overruled. As a consequence, it is held that the petition filed by the respondent before the Cooperative Court is not maintainable. It would, however, be open to the respondent to file a civil suit. Needless to mention, in such a civil suit filed by the respondent, he would be at liberty to file application under Section 14 of the Limitation Act, 1963 in order to save the limitation.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 1488 OF 2017


|THE MAHARASHTRA STATE COOPERATIVE HOUSING      |                          |
|FINANCE CORPORATION LTD.                       |.....APPELLANT(S)         |
|VERSUS                                         |                          |
|PRABHAKAR SITARAM BHADANGE                     |.....RESPONDENT(S)        |


                               J U D G M E N T
A.K. SIKRI, J.
            The appellant, Maharashtra  State  Cooperative  Housing  Finance
Corporation Limited (hereinafter referred to as  the  ‘Corporation’),  is  a
cooperative society registered under the Maharashtra  Cooperative  Societies
Act, 1960 (hereinafter referred  to  as  the  ‘Act’).   The  respondent  had
joined the services in the appellant Corporation in  the  year  1975  as  an
Inspector.  He was promoted to the post of Branch Manager (Class-I)  in  the
year 2000.  For certain  acts  of  misconduct  allegedly  committed  by  the
respondent, he was put under suspension vide orders  dated  July  11,  2003.
Thereafter, a charge-sheet was served upon him and the departmental  inquiry
conducted, which resulted in dismissal order dated April 28, 2006 passed  by
the Corporation, dismissing the respondent from service.   His  departmental
appeal having dismissed, the respondent approached the Cooperative Court  at
Aurangabad, which is set up under the Act, on  April  19,  2007  challenging
the orders of dismissal from service as well  as  the  order  rejecting  the
departmental appeal by filing Dispute No. 61  of  2007.   On  receiving  the
notice in the said dispute petition, the Corporation  filed  an  application
for rejection of the petition of the  respondent  on  the  ground  that  the
Cooperative Court set up under the Act did  not  have  the  jurisdiction  to
entertain and decide the  service  dispute  between  the  employer  and  the
employee, inasmuch as the  dispute  in  question  did  not  touch  upon  the
business of the society and was not covered by the provisions of Section  91
of the Act.  The Cooperative Court dismissed the  said  application  holding
that it had the requisite jurisdiction to decide the dispute.  Order of  the
Cooperative Court was challenged by the  appellant  before  the  Cooperative
Appellate Court in the  form  of  an  appeal.   This  appeal  was  dismissed
confirming the orders of the Cooperative Court.  Further challenge was  laid
by the appellant by  filing  a  writ  petition  before  the  High  Court  of
Judicature at Bombay, Aurangabad Bench.  This writ petition  has  also  been
dismissed vide judgment dated January 21, 2014.  Present appeal assails  the
said judgment of the High Court.

From the aforesaid, it becomes  clear  that  the  issue  that  needs  to  be
decided is as to whether the Cooperative Court  established  under  the  Act
has the  requisite  jurisdiction  to  decide  ‘service  dispute’  between  a
cooperative society established under the Act and its employees.

Section 91(1) of the Act, scope whereof is to be examined, reads as under:
“91. Disputes. – (1) Notwithstanding anything contained  in  any  other  law
for the  time  being  in  force,  any  dispute  touching  the  constitution,
elections  of  the  committee  or  its  officers  other  than  elections  of
committees of the specified societies  including  its  officer,  conduct  of
general meetings, management or business of a society shall be  referred  by
any of the parties to the dispute, or by a  federal  society  to  which  the
society is affiliated or by a creditor of the society,  to  the  Cooperative
Court if both the parties thereto are one or the other of the following –

(a)   a society, its committee, any past  committee,  any  past  or  present
officer, any past or present agent, any past or present servant or  nominee,
heir or legal representative of any  deceased  officer,  deceased  agent  or
deceased servant of the society, or the liquidator of  the  society  or  the
official assignee of a deregistered society;

(b)   a member, past member of a person  claiming  through  a  member,  past
member of a deceased member of society, or a society which is  a  member  of
the society or a person who claims to be a member of the society;

(c)   a person other than a member of the society, with  whom  the  society,
has any transactions in respect of which  any  restrictions  or  regulations
have been imposed, made or prescribed under Section 43, 44 or  45,  and  any
person claiming through such person;

(d)   a surety of a member, past member or deceased member, or surety  of  a
person other than a member with whom the  society  has  any  transaction  in
respect of  which  restrictions  have  been  prescribed  under  Section  45,
whether such surety or person is or is not a member of the society;

(e)    any  other  society,  or  the  liquidator  of  such  a   society   or
deregistered society  or  the  official  assignee  of  such  a  deregistered
society.”

As the plain language of  Section  91  suggests,  primarily  those  disputes
which  pertain  to  the  constitution  of  the  society  or  the  elections,
management  or  business  of  society,  etc.,  are  to  be  decided  by  the
Cooperative Court.  Such disputes are normally between the  members  of  the
society or between the society and its members.  However, this Section  also
uses the expression ‘it’s officers’ and on that basis, it is argued  by  the
respondent that disputes of employees/officers with the management  and  the
society can also  be  covered,  more  particularly,  the  dispute  regarding
termination of the officer, which is the  subject  matter  of  the  petition
filed by the respondent.  It is further argued that  in  any  case  disputes
pertaining to ‘management or business of  a  society’  are  wide  enough  to
cover the dispute between the society as an employer and its employees.

Before the High Court it was argued by the counsel for the  respondent  that
the respondent was not claiming reinstatement as he had attained the age  of
superannuation when the dispute was  filed.   Therefore,  while  challenging
the resolution of the respondent dismissing  his  services,  the  respondent
was seeking compensation for wrongful dismissal.  It was, thus, argued  that
since reinstatement was not claimed, the award of  compensation  was  within
the  jurisdiction  of  the  Cooperative  Court.   This  contention  of   the
respondent is accepted by the High Court relying upon its  earlier  Division
Bench judgment in the case of Pralhad Vithalrao Pawar v. Managing  Director,
Kannaded Sahakari Sakhar Karkhana Ltd. & Anr.[1]  The rationale behind  this
view taken in the aforesaid judgment by the High Court was that  the  remedy
under Section 91(1) of the Act is a substitute for the  remedy  which  could
have been available before the  Civil  Court  as  the  forum  created  under
Section 91 is a substitute for the Civil Court and created under  a  special
legislation.  Since the Civil Court has the jurisdiction to  award  damages,
the Cooperative Court would be vested with same powers  as  its  substitute.
The High Court also held that the  respondent  herein  was  working  as  the
Manager with the appellant Corporation and,  therefore,  was  not  ‘workman’
within the meaning of Section 2(s) of the  Industrial  Disputes  Act,  1947.
The submission of the learned counsel for the appellant was that,  no  doubt
the Cooperative Court was the substitute of the Civil  Court,  but,  at  the
same time, it was the creature of the statute and only limited  powers  were
conferred upon the Cooperative Court and not all the  powers  of  the  Civil
Court.  These  powers  pertained  to  the  nature  of  disputes  which  were
categorically delineated under Section 91 of  the  Act.   According  to  the
learned counsel, the Cooperative Court was vested with the  jurisdiction  to
decide only those disputes which touch upon the business of the society  and
since it was not a dispute pertaining to the business of the society or  the
election  of  committee  or  its  officers,  and  was  an  employer-employee
dispute, Section 91 did not give any  power  to  the  Cooperative  Court  to
decide such disputes which arise between the employer and the employee.

Learned counsel for the respondent, on the other hand,  adopted  the  afore-
noted reasons as given by the High Court.  His submission was that the  word
‘officer’ occurring  in  Section  91  would  include  disputes  between  the
management and its officers, i.e. employees.  He  also  submitted  that  the
disputes relating to ‘management’ of a society  should  be  read  widely  to
include service disputes as well.

We may state at the outset that it was conceded  at  the  Bar  that  if  the
employee of a cooperative society is covered by the definition of  ‘workman’
within the meaning of the Industrial Disputes Act, 1947 and claims a  relief
of reinstatement,  in  that  event  the  Cooperative  Court  will  not  have
jurisdiction  to  entertain  such  a   claim,   inasmuch   as,   relief   of
reinstatement cannot be granted by the Cooperative  Court.   Such  a  relief
can only  be  granted  by  the  Labour  Court  or  the  Industrial  Tribunal
constituted under the Industrial Disputes Act  having  regard  to  the  fact
that special and complete machinery for this purpose is provided  under  the
provisions of the Industrial Disputes Act, the  jurisdiction  of  the  Civil
Court stands ousted.  This is so  held  by  this  Court  consistently  in  a
number of judgments[2].  These observations are made  on  the  premise  that
even if it is accepted that the Cooperative Court established under the  Act
is a substitute of a Civil Court, the jurisdiction of  the  Civil  Court  to
grant relief would not go beyond the jurisdiction which has been  vested  in
the  Civil  Court.   When  admittedly  the  Civil  Court   does   not   have
jurisdiction to grant any such relief and  its  jurisdiction  is  barred  in
view of the law laid down in the aforesaid judgment, as  a  fortiorari,  the
jurisdiction of the Cooperative Court shall also stand barred.  We may  also
clarify one more aspect.  Contract of personal services is  not  enforceable
under the common law.  Section 14, read with Section 41(e) of  the  Specific
Relief Act, 1963, specifically bars the enforcement of such a contract.   It
is for this reason the principle of law which is well  established  is  that
the  Civil  Court  does  not  have  the  jurisdiction  to  grant  relief  of
reinstatement as giving  of  such  relief  would  amount  to  enforcing  the
contract of personal services.  However, as laid down in the cases  referred
to above, and also in Executive Committee of Vaish Degree College, Shamli  &
Ors. v. Lakshmi  Narain  &  Ors.[3],  there  are  three  exceptions  to  the
aforesaid rule where the contract of personal services can be enforced:
(a)   in the case of a public servant who has been  dismissed  from  service
in contravention of Article 311 of the Constitution of India;
(b)   in the case of an employee who could be reinstated  in  an  industrial
adjudication by the Labour Court or an Industrial Tribunal; and
 (c)  in the case of a statutory body,  its  employee  could  be  reinstated
when it has acted in breach of the  mandatory  obligations  imposed  by  the
statute.

Even when the employees falling under any of the aforesaid three  categories
raise dispute qua their termination, the Civil Court  is  not  empowered  to
grant reinstatement and the remedy would be, in the  first  two  categories,
by way of writ petition  under  Article  226  of  the  Constitution  or  the
Administrative Tribunal Act, as the case may be, and in the third  category,
it would be under the Industrial Disputes Act.  An  employee  who  does  not
fall in any of the aforesaid exceptions  cannot  claim  reinstatement.   His
only remedy is to file a suit in the Civil Court  seeking  declaration  that
termination was wrongful and claim damages for such wrongful termination  of
services.  Admittedly, the appellant Corporation  is  not  a  ‘State’  under
Article 12 of the Constitution.  The respondent also cannot be treated as  a
Government/public servant  as  he  was  not  under  the  employment  of  any
Government.  He was also not ‘workman’ under the Industrial Disputes Act  as
he was working as Manager with the appellant Corporation.

In the aforesaid conspectus, we have to examine as  to  whether  this  power
which is available with the Civil Court to grant damages  is  now  given  to
the Cooperative Court under Section 91 of the Act.  We may also  mention  at
this stage that some of the States have statutes  which  contain  provisions
regarding management and  regulations  of  the  cooperative  society,  where
specific machinery under these State Cooperative Societies Acts is  provided
for resolution of employment  disputes  as  well,  between  the  cooperative
societies and its employees, that too  by  excluding  the  applicability  of
labour laws.  No doubt, in such cases, the disputes between the  cooperative
societies and it employees, including the workmen, would be  dealt  with  by
such machinery and the general Act, like the Industrial Disputes Act,  would
not be applicable (See Ghaziabad Zila Sahkari  Bank  Ltd.  v.  Addl.  Labour
Commissioner  &  Ors.[4]  and  Dharappa  v.  Bijapur  Coop.  Milk  Producers
Societies Union Ltd.[5]).  Pertinently, in  the  instant  case,  Section  91
specifically excludes  the  disputes  between  the  cooperative  society  as
employer and its  ‘workmen’.   Ultimately,  the  outcome  depends  upon  the
powers that are given to the Cooperative Court or  the  stipulated  tribunal
created under such Acts.  It is in this hue  we  have  to  find  out  as  to
whether Section 91 of the Act at hand empowers Cooperative Courts to  decide
such disputes.

A reading of the provisions of Section 91 would  show  that  there  are  two
essential requirements for  conferment  of  exclusive  jurisdiction  on  the
Cooperative Court which need to be satisfied:
(i)   the first requirement is that disputes should be  ‘disputes  touching’
the constitution of the society or elections or committee  or  its  officers
or conduct of general meetings or management of society, or business of  the
society; and
(ii)  the second requirement is that such a dispute is  to  be  referred  to
the Cooperative Court  by  ‘enumerated  persons’  as  specified  under  sub-
section (1) of Section 91.

When we read the provision in the aforesaid manner,  we  arrive  at  a  firm
conclusion that service dispute between the employees  of  such  cooperative
society and the management of the society are not covered by  the  aforesaid
provision.  The context in which the word ‘officers’ is used  is  altogether
different, namely, election of the committee or  its  officers.   Thus,  the
word ‘officers’  has  reference  to  elections.   It  is  in  the  same  hue
expression ‘officer’ occurs second time as well.

It was, however, argued by the  learned  counsel  for  the  respondent  that
disputes touching the ‘management or business of a  society’  would  include
the dispute between the management of the society and its employees.

There are plethora of judgments of this Court holding  that  the  expression
‘business of the society’ would not cover the service  matters  of  employer
and employee.  In Deccan Merchants  Coop.  Bank  Ltd.  v.  Dalichand  Jugraj
Jain[6], this Court interpreted somewhat similar clause  and  held  that  it
covered five kinds  of  disputes.   It  becomes  clear  from  the  following
discussion:
“Five kinds of  disputes  are  mentioned  in  sub-section:  first,  disputes
touching  the  constitution  of  a  society;  secondly,  disputes   touching
election of the office-bearers of a society; thirdly, disputes touching  the
conduct of general meetings of a society; fourthly,  disputes  touching  the
management of a society; and fifthly disputes touching  the  business  of  a
society. It is clear that the word ‘business’ in this context does not  mean
affairs of a society because election of office-bearers, conduct of  general
meetings and management of a society  would  be  treated  as  affairs  of  a
society. In this  sub-section  the  word  ‘business’  has  been  used  in  a
narrower sense and it means  the  actual  trading  or  commercial  or  other
similar business activity of the society which the society is authorised  to
enter into under the Act and the Rules and its bye-laws.”

      Likewise, in Coop. Central Bank Ltd. v. Addl. Industrial  Tribunal[7],
the Court held that the expression ‘touching the business  of  the  society’
would not cover the disputes  pertaining  to  alteration  of  conditions  of
service of workman.
      These judgments were taken note of in Morinda Coop. Sugar  Mills  Ltd.
v. Morinda Coop. Sugar Mills Workers’ Union[8], where scope  of  Section  55
of the Punjab Cooperative Societies Act, 1961  came  up  for  consideration.
That section provided for  reference  of  dispute  to  arbitration  ‘if  any
dispute  touching  the  constitution,  management  or  the  business  of   a
cooperative society arises’.  Following the aforesaid judgments,  the  Court
gave limited meaning to the aforesaid expression  and  held  that  the  suit
filed by the Workers’ Union of the  cooperative  society  claiming  dearness
allowance on the wages plus fixed allowance in  accordance  with  the  Third
Wage Board Report was maintainable in the Civil Court, and  such  a  dispute
was not covered by the provisions of Section 55 of  the  Punjab  Cooperative
Societies Act, 1961.
      The reading of the aforesaid judgments  make  it  crystal  clear  that
dispute of this nature does not come within the scope of  ‘business  of  the
society’.

We now advert to the question as to whether such a dispute  can  be  treated
as dispute relating to ‘management of  the  society’.   On  this  aspect  as
well, there is a direct judgment of this Court in Gujarat State  Cooperative
Land Development Bank Ltd. v. P.R. Mankad & Ors.[9] wherein  the  expression
‘management of the society’ was assigned the following meaning:
“35. We will now focus  attention  on  the  expression  “management  of  the
Society” used in Section 96(1)  of  the  Act  of  1961.  Grammatically,  one
meaning of the term ‘management’ is: “the Board of Directors' or  “the  apex
body”  or  “Executive  Committee  at  the  helm  which  guides,   regulates,
supervises, directs and controls the affairs of the Society”. In this  sense
it may not include the individuals who under the  overall  control  of  that
governing body or Committee, run the day-to-day  business  of  the  Society,
(see Words and Phrases, by West Publishing Co., Permanent Edn., Vol. 26,  p.
357, citing Warner and Swasey Co. v. Rusterholz D.C. Minn [41  F  Supp  398,
505] . Another meaning of the term “management”, may be: ‘the  act  or  acts
of  managing  or  governing   by   direction,   guidance,   superintendence,
regulation and control, the affairs of a Society’.

36.  A still wider meaning of the  term  which  will  encompass  the  entire
staff of servants and workmen of the Society, has been canvassed for  by  Mr
Dholakia. The use of the term “management” in such a wide sense  in  Section
96(1) appears to us, to be very doubtful.”

      It, thus, clearly follows that the dispute raised  by  the  respondent
is not covered within the meaning of Section 91 of the Act  and,  therefore,
the Cooperative Court does not have the jurisdiction to entertain the  claim
filed by the respondent.

The learned counsel for the respondent referred  to  the  judgment  of  this
Court in the case  of  R.C.  Tiwari  v.  M.P.  State  Cooperative  Marketing
Federation Ltd. & Ors.[10].  However, a close scrutiny of the said  judgment
would reveal that the power of the Registrar to deal  with  the  dispute  of
dismissal from service of the  employee  was  recognised  having  regard  to
Section 55 of the M.P. Cooperative Societies Act, 1960 which  gave  specific
power to the Registrar to determine conditions of employment  in  societies,
including deciding the  disputes  regarding  terms  of  employment,  working
conditions and disciplinary actions taken by  the  society  arising  between
the society and its employees.  Therefore, that  judgment  would  be  of  no
help to the respondent.

It may be noted that the High Court, in the impugned  judgment,  has  itself
proceeded on the basis that if the dispute  relates  to  reinstatement,  the
Cooperative Court will not have  any  jurisdiction.   The  main  reason  for
conferring jurisdiction upon the Cooperative Court in the  instant  case  is
that the Cooperative Court has replaced  the  Civil  Court  and,  therefore,
powers of the Civil Court are given to the Cooperative Court.  However,  the
High Court erred in not further analysing the provisions of  Section  91  of
the Act which  spells  out  the  specific  powers  that  are  given  to  the
Cooperative Court and those powers are of  limited  nature.   Our  aforesaid
analysis leads to the conclusion that the disputes between  the  cooperative
society and its employees are not covered by the  said  provision.   We  may
hasten to add that if the provision is couched  in  a  language  to  include
such disputes (and we find such  provisions  in  the  Cooperative  Societies
Acts of certain States) and it is found that  the  Cooperative  Society  Act
provides  for  complete  machinery  of  redressal  of  grievances   of   the
employees, then even  the  jurisdiction  of  the  Labour  Court/  Industrial
Tribunal under the Industrial Disputes Act shall be barred having regard  to
the provisions of such a special statute vis-a-vis general statute like  the
Industrial Disputes Act {See – Ghaziabad Zila Sahkari Bank Ltd.[11]}.

In Gujarat State Co-operative Land Development Bank Ltd. v.  P.R.  Mankad  &
Ors.[12], an employee working as  Additional  Supervisor  was  removed  from
service by giving one  month’s  pay  in  lieu  of  Notice  under  the  Staff
Regulations.  He had issued a notice under the Bombay  Industrial  Relations
Act, 1946, as he was an employee as defined under section 2(13) of the  said
Act.  One of the questions that was considered by this Court was  whether  a
dispute raised by the said employee  for  setting  aside  his  removal  from
service on  the  ground  that  it  was  an  act  of  victimization  and  for
reinstatement in service with back wages was one  ‘touching  the  management
or business of the society’, within the contemplation  of  the  Co-operative
Societies Act.  This Court held that the expression ‘any  dispute’  referred
to in section 96 of the Gujarat Co-operative Societies  Act,  1961  did  not
cover a dispute of the kind raised by the respondent  employee  against  the
bank.

As a result, this appeal is allowed, the order of  the  High  Court  is  set
aside and the Division Bench judgment, on which reliance is  placed  by  the
High Court in the impugned judgment, is overruled.  As a consequence, it  is
held that the petition filed by the respondent before the Cooperative  Court
is not maintainable.  It would, however, be open to the respondent  to  file
a civil suit.  Needless to mention, in  such  a  civil  suit  filed  by  the
respondent, he would be at liberty to file application under Section  14  of
the Limitation Act, 1963 in order to save the limitation.
      No costs.
                             .............................................J.
                                                                (A.K. SIKRI)


                             .............................................J.
                                                              (R.K. AGRAWAL)
NEW DELHI;
MARCH 30, 2017.
-----------------------
[1]
      1998 (3) Mh.L.J. 214
[2]      Uttar Pradesh Warehousing Corporation Ltd. v. Chandra Kiran  Tyage,
1970 1 LLJ 32; Dr. S.B. Dutta v. University of  Delhi,  1959  SCR  1236  and
S.R. Tewari v. District Board, Agra 1964 1 LLJ 1
[3]   (1976) 2 SCC 58
[4]     (2007) 11 SCC 756
[5]      (2007) 9 SCC 109
[6]   (1969) 1 SCR 887
[7]   (1969) 2 SCC 43
[8]   (2006) 6 SCC 80
[9]   (1979) 3 SCC 123
[10]  (1997) 5 SCC 125
[11]      Refer Footnote 4
[12]  (1979) 3 SCC 123

The practice of omnibus marking of S. 164 statement of witness deserves to be deprecated. The relevant portion of such prior statements of living persons used for contradiction or corroboration U/s. 145/157 of the Evidence Act deserves to be marked separately and specifically. 12. The practice of whole sale marking of confession statement of accused persons for introduction of the relevant statement admissible under S. 27 of Evidence Act deserves to be deprecated. Ideally the admissible portion and that portion alone, must be extracted in the recovery memos (Mahazar or Panch – different nomenclature used in different parts of the land) within inverted commas. Otherwise the relevant portion alone written separately must be proved by the Investigating Officer. Back door access to inadmissible evidence by marking the entire confession statement in the attempt to prove the admissible portion under S. 27 of Evidence Act should be strictly avoided.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION
                      SUO MOTU WRIT(CRL.) NO.1 OF 2017

IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING INADEQUACIES  AND  DEFICIENCIES
IN CRIMINAL TRIALS


                         O R D E R


            During the course of hearing of Criminal Appeal No.400/2006  and
connected matters, Mr. R. Basant, learned Senior Counsel appearing  for  the
appellants-complainant,  pointed  out  certain   common   inadequacies   and
deficiencies in the course  of  trial  adopted  by  the  trial  court  while
disposing of criminal cases. In particular, it was pointed out  that  though
there are beneficial provisions in the Rules of  some  of  the  High  Courts
which ensure that certain documents such as list of witnesses and  the  list
of exhibits/material objects referred to, are annexed to  the  judgment  and
order itself of the trial court, these features do not exist  in  Rules   of
some other High Courts. Undoubtedly, the judgments and orders of  the  trial
court which have such lists annexed, can be appreciated much better  by  the
appellate courts.
            Certain other matters were also pointed out  by     Mr.  Basant,
learned Senior Counsel for the appellants- complainant,  during  the  course
of arguments. He made the following submissions :

A.    In the course of discussions at the Bar while considering  this  case,
this Court  had  generally  adverted  to  certain  common  inadequacies  and
imperfections that occur in the criminal trials in our  country.  I  venture
to suggest that in  the  interests  of  better  administration  of  criminal
justice and to usher in a certain amount of uniformity,  and  acceptance  of
best practices prevailing over  various  parts  of  India,  this  Court  may
consider issue of certain general  guidelines  to  be  followed  across  the
board by all Criminal Courts in the country.

B.    The following areas may be considered specifically:
1.    The pernicious practice of the Trial Judge leaving  the  recording  of
deposition to the clerk concerned and recording  of  evidence  going  on  in
more than one case in the same Court room,  at  the  same  time,  under  the
presence and  general  supervision  of  the  presiding  officer  has  to  be
disapproved strongly and discontinued forthwith.  A  visit  to  Delhi  Trial
Courts any day will reveal  this  sad  state  of  affairs,  I  am  given  to
understand.
2.    The depositions of witnesses must be recorded, in typed format,  using
computers, in Court, to the dictation of the presiding officers (in  English
wherever  possible)  so  that  readable  true  copies  will   be   available
straightaway and can be issued to both sides  on  the  date  of  examination
itself.
3.    The deposition of each witness  must  be  recorded  dividing  it  into
separate paragraphs assigning para numbers to facilitate easy  reference  to
specific portions later in the course of arguments and in Judgments.
4.      Witnesses/documents/material   objects    be    assigned    specific
nomenclature and numbers like PWs/DWs/CWs (1 onwards); Ext. P/Ext. D/Ext.  C
(1 onwards); MOs (1 onwards) etc., so that reference later becomes easy  and
less time-consuming. Kindly see the Relevant Rules
Kerala Criminal Rules of Practice 1982

“Rule 62 – Marking of exhibits.-
(1) Exhibits admitted in evidence shall be marked as follows:

If filed by the prosecution, with capital letter P  followed  by  a  numeral
P1, P2, P3 etc

If filed by defence, with capital letter D followed by a numeral D1, D2,  D3
etc

If Court exhibits, with capital letter C followed by a numeral  C1,  C2,  C3
etc.

(2) All exhibits marked by several accused shall be marked consecutively.

(3) All material objects shall be marked in  Arabic  numbers  in  continuous
series, whether exhibited for the prosecution or the defence  or  the  Court
as M.O.1, M.O.2, M.O.3, etc”



Andhra Pradesh Criminal rules of Practice and Circular Orders, 1990

“Rule 66 – How witness shall be referred to
Witnesses shall be referred by their names or ranks  as  P.W.s.,  or  D.Ws.,
and if the witnesses are not examined, but cited in  the  chargesheet,  they
should be referred by their names and not by numbers  allotted  to  them  in
the charge-sheet.”



5.    Every judgment must mandatorily have a preface  showing  the  name  of
the parties and an appendix showing  the  list  of  Prosecutions  Witnesses,
Prosecution Exhibits, Defence Witnesses, Defence Exhibits, Court  witnesses,
Court Exhibits and Material Objects. Kindly  see  inter  alia  the  Relevant
rules in the Kerala Criminal Rules of Practice, 1982.

“Rule 132 – Judgment  to  contain  certain  particulars.-  The  Judgment  in
original decision shall, apart from the particulars  prescribed  by  Section
354 of the Code  also  contain  a  statement  in  Tabular  Form  giving  the
following particulars, namely:-
|1.     |Serial Number               |                      |
|2.     |Name of the Police Station  |                      |
|       |and the Crime No. of the    |                      |
|       |offence                     |                      |
|3.     |Name                        |                      |
|       |                            |                      |
|       |                            |Description of the    |
|       |                            |Accused               |
|4.     |Father's name               |                      |
|5.     |Occupation                  |                      |
|6.     |Residence                   |                      |
|7.     |Age                         |                      |
|8.     |Occurrence                  |                      |
|       |                            |                      |
|       |                            |Date of               |
|9.     |Complaint                   |                      |
|10.    |Apprehension                |                      |
|11.    |Release on bail             |                      |
|12.    |Commitment                  |                      |
|13.    |Commencement of trial       |                      |
|14.    |Close of trial              |                      |
|15.    |Sentence or order           |                      |
|16.    |Service of copy of judgment |                      |
|       |or finding on accused       |                      |
|17.    |Explanation of delay        |                      |

Note.- (1) Date of complaint in column 9 shall be the date of the filing  of
the charge-sheet in respect of case instituted  on  police  report  and  the
date of filing of the complaint in respect of other case.
(2) Date of apprehension in column 10 shall be the date of arrest.
(3) Date of commencement of trial in column 13 shall be :
(a)   In summons cases, the date on which the  particulars  of  the  offence
are stated to the accused under section 251 of the Code.
(b) In warrant cases instituted on police report,  the  date  on  which  the
documents under section 207 of the Code are furnished  to  the  accused  and
the Magistrate satisfied himself of the same under section 238 of the  Code.

(c) In other warrant cases, when the  recording  of  evidence  is  commenced
under section 244 of the Code.
(d) In Sessions trials, when the charge is read out  and  explained  to  the
accused under section 228 of the Code.
“Rule 134 – List of witnesses etc. to be Appended to Judgement.


There shall be appended to every judgment a list of the  witnesses  examined
by the prosecution and for the defence and by the Court and also a  list  of
exhibits and material objects marked.”









6.    Once numbers are assigned to  the  accused,  witnesses  and  exhibits,
they be referred to, subsequently in the proceedings and  in  the  judgments
with the help of such numbers only. The practice of referring to  the  names
of the accused/witnesses and  documents  descriptively  in  the  proceedings
paper and judgments creates a lot of confusion. Whenever there  is  need  to
refer to them by name  their  rank  as  Accused/Witness  must  be  shown  in
brackets.



7.    Repetition of pleadings, evidence, and arguments in the judgments  and
orders of the Trial Court,  Appellate  and  Revisional  Courts  be  avoided.
Repetition of facts, evidence, and contentions before lower Courts make  the
judgments cumbersome,  and  takes  away  the  precious  time  of  the  Court
unnecessarily.  The  Appellate/Revisional  Court   judgment/order   is   the
continuation of the lower court judgment and must ideally start  with  “  in
this appeal/revision, the impugned judgment is  assailed  on  the  following
grounds”  or  “the   points   that   arise   for   consideration   in   this
appeal/revision  are”.  This   does   not   of   course,   take   away   the
option/jurisdiction of the Appellate/Revisional Courts to  re-narrate  facts
and contentions if they be inadequately or insufficiently  narrated  in  the
judgment. Mechanical re narration to be avoided at any rate.



8.    In every case file, a judgment folder to be maintained, and the  first
para in the  appellate/revisional  judgment  to  be  numbered  as  the  next
paragraph after the last para in the impugned judgment. This would cater  to
a better culture of judgment writing saving precious court time.



9.    The healthy practice in  some  states  of  the  Investigating  Officer
obtaining and producing (or the wound certificate/ post  mortem  certificate
showing) the front and rear sketch of the human torso showing  the  injuries
listed in the medical documents specifically,  may  be  uniformly  insisted.
This would help the judges to have a clearer and surer understanding of  the
situs of the injuries.



10.   Marking  of  contradictions  –  A  healthy  practice  of  marking  the
contradictions/Omissions properly  does  not  appear  to  exist  in  several
States. Ideally the relevant portions  of  case  diary  statement  used  for
contradicting a witness must be extracted fully in the  deposition.  If  the
same  is  cumbersome  at  least  the  opening  and  closing  words  of   the
contradiction in the case  diary  statement  must  be  referred  to  in  the
deposition and marked separately as a Prosecution/Defence exhibit.



11.   The practice of  omnibus  marking  of  S.  164  statement  of  witness
deserves to be deprecated. The relevant portion of such prior statements  of
living persons used for contradiction or corroboration U/s. 145/157  of  the
Evidence Act deserves to be marked separately and specifically.



12.   The practice of whole sale marking of confession statement of  accused
persons for introduction of the relevant statement admissible  under  S.  27
of Evidence Act deserves to be deprecated. Ideally  the  admissible  portion
and that portion alone, must be extracted in the recovery memos (Mahazar  or
Panch – different nomenclature used in different parts of the  land)  within
inverted commas. Otherwise the relevant  portion  alone  written  separately
must  be  proved  by  the  Investigating  Officer.  Back  door   access   to
inadmissible evidence by marking the  entire  confession  statement  in  the
attempt to prove the admissible portion under S. 27 of Evidence  Act  should
be strictly avoided.



13.   The Trial Courts  must  be  mandatorily  obliged  to  specify  in  the
Judgment the period of set off under Section 428 Cr.P.C specifying date  and
not leave  it  to  be  resolved  later  by  jail  authorities  or  successor
presiding officers. The Judgements and the consequent warrant  of  committal
must specify the period of set off clearly.









            In the circumstances, we direct that notices be  issued  to  the
Registrars General of all the High Courts,  and  the  Chief  Secretaries/the
Administrators and the Advocates-General/Senior Standing Counsel of all  the
States/Union Territories, so that general consensus can  be  arrived  at  on
the need to amend the relevant Rules of Practice/ Criminal Manuals to  bring
about uniform best  practices  across  the  country.  This  Court  may  also
consider issuance of directions under Article 142 of the Constitution.  They
can be given the option to give suggestions also on other areas of concern.


                                                  .........................J
                                                               [S. A. BOBDE]


                                                   ........................J
                                                          [L. NAGESWARA RAO]
New Delhi;
      MARCH 30, 2017.


whether A3, A4, A14, A15 and A18 are liable to be convicted under Section 302/149 IPC. Taking into account the fact that the incident occurred in the year 1993, that they attacked the deceased with sticks causing simple injuries on non-vital parts, their conviction under Section 326/149 IPC will meet the ends of justice. The Trial Court convicted A4 under Section 324/149 IPC and sentenced for imprisonment for 2 years along with his conviction under Section 302/149 IPC. The High Court acquitted A4 under Section 302/149 IPC and reduced the sentence under Section 324/149 IPC to 1 year. A4 was separated from A3, A14, A15 and A18 only on the ground that PW3 spoke about his presence. Otherwise, the role ascribed to A4 is the same as that of A3, A14, A15 and A18. In the result A3 Majeed, A4 Ummer alias Podi Ummer, A14 Balaji, A15 Muraleedharan and A18 Hasheem alias Muhammed Hasheem are sentenced to 7 years imprisonment under Section 326/149 IPC.

                                                                  Reportable


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No.400 of 2006

KATTUKULANGARA MADHAVAN (DEAD) THR. LRS.

.... Appellant(s)
      Versus
MAJEED & ORS.                                       ….Respondent(s)
                                    With

                       CRIMINAL APPEAL No.661 OF 2006

KATTUKULANGARA MADHAVAN (DEAD) THR. LRS.

 .... Appellant(s)
      Versus
SIDDIK & ORS.                                        ….Respondent(s)

                                     And

                       CRIMINAL APPEAL No.141 OF 2007

STATE    OF    KERALA                                                   ....
Appellant(s)
      Versus

ABOOBACKER @ ARABI ABOOBACKER & ORS.
                                                             ….Respondent(s)



                               J U D G M E N T


L. NAGESWARA RAO, J.
      The Sessions Court, Thrissur convicted A1 to A4,  A14,  A15,  and  A18
under Section 302  read  with  149  Indian  Penal  Code,  1860  (hereinafter
referred to as the ‘IPC’) and  sentenced  them  to  imprisonment  for  life.
They were also convicted for offences under Section 143, 147, 148, 341,  342
and 324/149 IPC.  A5 to A13, A16 and A17 were acquitted. A1 to A4, A14,  A15
and A18 who were convicted,  filed  an  Appeal  before  the  High  Court  of
Kerala.  The State of Kerala and the complainant (father  of  the  deceased)
also filed appeals against the order of acquittal of  A5  to  A13,  A16  and
A17.  By way of abundant caution  the  complainant  also  filed  a  Criminal
Revision challenging the acquittal of the said  accused.   The  judgment  of
the Trial Court acquitting A5 to A13, A16 and A17 was confirmed by the  High
Court.   A1 was convicted under Section 302 and  sentenced  to  imprisonment
for life.   A2 and A4 were convicted under  Section  324/149  IPC  and  were
sentenced to imprisonment of 1 year.  A3, A14, A15 and A18  were  acquitted.
A1 filed an appeal  before  this  Court  which  abated  as  he  died.    The
complainant filed an appeal against the acquittal of A2 to A4, A14, A15  and
A18.  He also filed an appeal challenging the acquittal of A5  to  A13,  A16
and A17.  The State of Kerala also assailed the acquittal of A2 to A4,  A14,
A15 and A18 by filing an appeal.  It is relevant to take note  of  the  fact
that initially 21 persons were named as accused.  A21 absconded and A19  and
A20 died during the course of trial.   A1, A2, A5 and A12  died  during  the
pendency of the appeals.
2.    The case of the prosecution was that PW-14, a Head Constable  attached
to Kunnamkulam Police Station, received a  phone  call  in  the  evening  on
10.03.1993 that there was a fight  going  on  at  Ottappilavu  centre.    He
along with two other police men reached the place of the incident and  found
a person lying on the road margin on the western side of the  road.   As  he
was unconscious and was bleeding due  to  injuries,  he  was  taken  to  the
Government hospital, Kunnamkulam  for  treatment  in  a  police  jeep.   The
Doctor examined him  and  declared  him  dead.    As  the  identity  of  the
deceased was not known, PW 14 kept the body in the mortuary,  went  back  to
the police station and recorded the  details  in  the  General  Diary.   The
First Information Statement of PW-1  Krishnankutty  was  recorded  at  12:00
midnight on 10.03.1993.  He stated that there was a dispute  between  people
belonging to RSS and CPI (Marxist) party in connection with the festival  at
Korattikara Vishnu Bhagwati Temple.  He further stated that at  about  08:15
pm on 10.03.1993 when he was  walking  back  home  and  reached  Ottappilavu
centre he saw A2 to A5, A13,  A19  and  A21  along  with  number  of  others
attacking Suresh Babu.  He also stated  that  Suresh  Babu  was  stabbed  to
death by A13 and others.   On the basis of the First  Information  Statement
FIR No.95 of  1993  was  registered  at  Kunnamkulam  Police  Station  under
Section  143,  147,  148,  341,  324,  302/149  IPC  at  12:00  midnight  on
10.03.1993 by PW15.  Inquest was conducted between 9:45 am to  12:45  pm  by
PW15.   The Assistant Professor of Forensic  Medicine  at  Medical  College,
Thrissur (PW13) conducted the autopsy immediately  thereafter.    The  post-
mortem certificate referred to 26 injuries  on  the  body  of  the  deceased
Suresh Babu and the cause of death was  stated  as  “the  deceased  died  of
multiple injuries sustained to chest”.  The FIR was sent to  the  Magistrate
in the morning on 11.03.1993.
3.    Not satisfied with the investigation, Madhavan (PW12), the  father  of
the deceased filed a private complaint on  01.04.1994  before  the  Judicial
Magistrate 1st Class, Kunnamkulam. He  along  with  4  other  witnesses  was
examined and process was issued to the accused  persons.  PW4  Chandran  was
mentioned as a witness in the complaint. On 08.09.1994,  Madhavan  submitted
another list of witnesses in which PW5 and PW6 were included.  The cases  of
the  prosecution  and  the  private  complainant  were  consolidated.    The
Sessions Court directed the prosecution to submit a  schedule  of  witnesses
which would include the witnesses mentioned in the private  complaint  also.
The consolidated list of witnesses given by the  prosecution  included  PW4,
PW5 and PW6.
4.    After completion of investigation, all the accused  were  charged  for
committing offences under Sections  143, 147,  148,  341,  323  and  302/149
IPC.  As stated earlier A19 and A20 died during the course of trial and  A21
absconded.  The other accused pleaded not guilty  and  were  tried  for  the
aforementioned offences.   There were 16 witnesses  examined  on  behalf  of
the prosecution and 3 witnesses by the defence. PW1 Krishnankutty,  who  was
the informant and PW2 Gopinathan  who  was  an  eyewitness  turned  hostile.
Likewise, PW-8 Sulalman, PW9 Ashraf and PW10 Francis who were  attestors  to
the scene mahazar and seizure of  the  weapon  also  turned  hostile.   PW11
Kuttikrishan who was the driver  of  the  bus  in  which  the  deceased  was
travelling also turned hostile.
5.    The testimony of PW3 was  examined  in  detail  by  the  Trial  Court.
After considering the submissions on behalf of the defence, the Trial  Court
held that the evidence of PW3 Subramanian  was  consistent,  cogent  and  in
conformity with the prosecution case.  The Trial Court  held  that  PW4  was
also a credible witness.    According  to  the  Trial  Court  there  was  no
material contradiction brought out in the evidence of PW5 Balan who  was  an
eyewitness.   PW6 Velayudhan was found to be  a  doubtful  witness  and  the
Trial Court held that it was not safe to rely on his evidence.    The  Trial
Court concluded that there was corroboration to the oral  testimony  of  PW3
to PW5 from the  medical  evidence.    The  oral  evidence  showed  that  A1
stabbed on the left side of the back of the deceased  which  corresponds  to
injury No.24.  The other stab injuries inflicted by A1 and A21 as  mentioned
by the eyewitness also correspond to the stab injuries  in  Exh.P-11  (post-
mortem certificate).  Injury No.24 had the  depth  of  7.5  c.m.  caused  by
knife which entered the  left  chest  cavity  through  the  5th  intercostal
space.  It terminated at the upper part of lower  lobe  of  the  left  lung.
The Doctor opined that this injury was sufficient in the ordinary course  of
nature to cause death.   The  Trial  Court  held  that  A1  had  a  definite
intention to kill  the  deceased.   Considering  the  fact  that  the  other
accused continued to beat the deceased with sticks even  after  stabbing  by
A1 and A21, the Trial Court held that there was a common  object  of  murder
on the part of the accused.  A5 to A13, A16 and A17 were  acquitted  by  the
Trial Court as there was no evidence against them.  A1 to A4, A14,  A15  and
A18 were convicted under Section 302/149 IPC and sentenced  to  imprisonment
for life.
6.    The appeals filed by the convicted accused, the appeals filed  by  the
State and the complainant against the acquittal of some accused  were  taken
up along with the Criminal Revision filed by  the  complainant  against  the
acquittal.  The High Court discarded the evidence of PW5 and PW6.  The  High
Court held that PW3 is a trustworthy witness and PW4’s evidence can be  used
for corroboration.  Placing reliance on the evidence of  PW3  and  PW4,  the
High Court upheld the conviction of A1 under Section  302  IPC.    The  High
Court also held A2 and A4 guilty of  an  offence  punishable  under  Section
324/149 IPC by acquitting them of an  offence  under  Section  302/149  IPC.
A3, A14, A15 and A18 were acquitted for offences under Section  302/149  IPC
by the High Court.  The acquittal of other accused A5 to A13,  A16  and  A17
recorded by the Trial Court was confirmed  by  the  High  Court.   The  High
Court  referred  to  the  remand  report  dated  17.03.1993  of  the  Circle
Inspector in which it was recorded that on 10.03.1993  sympathisers  of  CPI
(M) were attacked by the followers of BJP at Ottappilavu.  In that  incident
Moidunny,  Ali,  Subramannian,  Shameer  and  Kunhikoya  sustained   serious
injuries and crime No.96 of 1993 in the  Kunnamkulam  Police  Station  under
Section 143, 147, 148, 323, 324, 307/149 IPC  was  registered.   There  were
three other cases which were registered against the sympathisers of CPI  (M)
for incidents that took place at 06:15 pm on the same day.   Taking note  of
the series of clashes on 10.03.1993, the High Court repelled the  submission
of the defence about the unexplained delay in filing  of  the  FIR  and  the
delay in the FIR reaching the Magistrate only on the next  day.    The  High
Court relying upon the judgments of this Court held  that  the  recovery  of
weapon not  being  proved  is  not  fatal  to  the  prosecution  case.   The
submission made on behalf  of  the  accused  that  PW3  and  PW4  cannot  be
believed on the ground that their  conduct  was  contrary  to  normal  human
behaviour was also rejected on the ground that there cannot be any  straight
jacket formula for the reaction of a person who  had  witnessed  a  criminal
act.  The High Court relied upon the judgments of this  Court  in  which  it
was held that human behaviour is unpredictable and there is no set  rule  of
natural reaction.   The defence  witnesses  were  disbelieved  by  the  High
Court.  All the accused except A1, A2 and  A4  were  acquitted  of  all  the
charges against them on the ground that the prosecution was unable to  prove
the common object of the unlawful assembly for the murder of Suresh Babu.
7.    The complainant filed Criminal  Appeal  No.400  of  2006  against  the
acquittal of A2 to A4, A14, A15 and A18.   He  also  filed  Criminal  Appeal
No.661 of 2006 assailing the acquittal of A5  to  A13,  A16  and  A17.   The
State of Kerala has filed Criminal Appeal No.141  of  2007  challenging  the
judgment of the High Court by  which  A2  to  A4,  A14,  A15  and  A18  were
acquitted.   A1 also approached this Court by filing an Appeal  against  his
conviction under Section 302 IPC.  However, the said appeal abated  in  view
of the death of A1.  We have heard Mr.Basant R., learned Senior Counsel  for
the appellant/ complainant in  Criminal  Appeal  Nos.400  of  2006,  Mr.  G.
Prakash, Advocate for the State of Kerala in Crl. Appeal  No.  141  of  2007
and Mr. Siddharth Luthra, learned Senior  Counsel  for  the  accused.    Mr.
Basant submitted that the  complainant  was  compelled  to  file  a  private
complaint in view of  the  perfunctory  investigation  into  the  murder  of
Suresh  Babu.   He  submitted  that  there  was  a  consolidation   of   the
prosecution case and the case filed by the  complainant  under  Section  210
Cr.P.C.  He further submitted that a  consolidated  list  of  witnesses  was
prepared.    According  to  the  learned  Senior  Counsel,  the  High  Court
committed  a  serious  error  in  eschewing  the  evidence   of   PW5   from
consideration.   He also stated that the evidence of PW4  should  have  been
relied upon by the High Court instead of using  it  only  for  corroborating
the evidence of PW3.  He urged that the High Court  erred  in  holding  that
the common object of the accused was  not  proved.    He  also  argued  that
admittedly there was a homicide and A1 was convicted for causing  the  death
of Suresh Babu.   The High Court also  convicted  A2  and  A4  for  offences
under Sections 143, 147, 148,  324/149  IPC.   He  submitted  that  all  the
accused are liable for conviction under Section 302/149 IPC especially  when
A2 and A4 were convicted under Section 143, 147, 148,  324/149  IPC  and  A1
convicted under Section 302 IPC.  Mr.G.Prakash, Advocate, appearing for  the
State of Kerala adopted the submissions made by Mr. Basant.
8.    Mr.  Siddharth  Luthra,  learned  Senior  Counsel  appearing  for  the
accused took us through the evidence of PW4, PW5 and PW6 and submitted  that
they are all interested  witnesses  who  deposed  at  the  instance  of  the
complainant.  He submitted that the informant  PW1  and  another  eyewitness
PW2 turned hostile.   He stated that the offence  took  place  on  a  public
road and no independent eyewitnesses were produced  by  the  prosecution  to
prove the case.  He further submitted that apart from PW4 no  other  witness
cited in the private complaint was examined.  The  partisan  and  interested
testimonies of eye witnesses who belonged to the  opposite  political  party
ought not to have been taken into consideration by  the  Courts  below.   He
also commented upon the  unnatural  behaviour  of  PW3  and  PW4  after  the
incident.   Mr. Luthra finally submitted that the appeals against  acquittal
should not be interfered lightly by this Court.  In any event, according  to
him, when there are two views possible, the  accused  should  be  given  the
benefit.
9.    As stated earlier, A1, A2, A5 and A12 died during the pendency of  the
appeals before this Court.  The remaining accused can  be  categorised  into
three groups.  The first group consists of A5 to A13, A16 and A17  who  were
acquitted both by the Trial Court and the  High  Court.   The  second  group
consists of A3, A14, A15 and A18 who  were  convicted  by  the  Trial  Court
under Section 302/149 IPC but acquitted by the High Court.    A4  forms  the
third group whose conviction under Section 302/149 IPC by  the  Trial  Court
was set aside by the High Court.  However, he was  convicted  under  Section
324/149 IPC and sentenced for a period of 1 year.
10.   PW3, who was an independent witness  and  was  believed  by  both  the
Courts below, gave a vivid description of the incident.  He stated  that  he
was a resident of Ottappilavu and that he was acquainted with  the  deceased
Suresh Babu who was residing about 1 k.m. away from his house.   He  deposed
that he went to Kunnamkulam to purchase medicines for his  brother  who  was
unwell.  He boarded a stage carriage bus by name Babu  bus  at  Kunnamkulam.
The deceased Suresh Babu was travelling in the same  bus.   He  stated  that
when the bus reached Ottappilavu junction, A1, A2, A4  and  A5  entered  the
bus, pulled Suresh Babu out of the bus and took him to  the  front  side  of
the bus and attacked him.  He  further  stated  that  A1  inflicted  a  stab
injury on the back of the left side  of  the  chest  of  Suresh  Babu.   The
deceased fell down and A1  inflicted  two  more  stab  injuries.   When  the
deceased  was  struggling  to  stand  up  and  escape  the   other   accused
indiscriminately beat him with a reaper and  sticks.    He  did  not  alight
from the bus and continued his travel and got down at  Chalissery  junction.
 He stated that he  was  questioned  by  the  police  after  two  days.   He
identified M.O.1 knife used by A1.   PW4  was  also  an  eyewitness  to  the
incident.  He stated that A2  to  A4,  A10,  A13,  A14,  A15,  A18  and  A20
attacked the deceased with sticks and a reaper after A1  and  A21  inflicted
stab injuries on the deceased.  He stated that his  house  is  situated  2/3
k.m. from the house of the deceased and that he also  attended  the  funeral
of Suresh Babu.  He was cited as a witness in the  private  complaint  filed
by PW12 (appellant).  His statement was recorded  by  the  Magistrate  under
Section 202 Cr. P.C.   PW6 was disbelieved by the Trial Court as well as  by
the High Court.  The evidence of PW5 disbelieved by  the  High  Court.   The
High Court acquitted A3, A14, A15 and  A18  of  the  charges  under  Section
302/149 IPC on two grounds.   The first ground was that PW3 did  not  depose
about  their  presence  and  it  was  only  PW4  who  stated   about   their
involvement.  The second ground was that there is no evidence to  show  that
the members of the unlawful assembly had a common object to cause the  death
of Suresh Babu.  Modification of the conviction  and  sentence  of  A4  from
Section 302/149 IPC to Section 324/149 IPC was on the  ground  that  A4  who
was a member of the unlawful assembly did  not  share  a  common  object  of
causing the death of Suresh Babu along with A1 and A21.
11.   We are of the opinion that the High Court committed  a  serious  error
in not  taking  into  consideration  the  evidence  of  PW4.    The  finding
recorded by the High Court that the evidence of PW4 can be  considered  only
for the limited purpose of corroboration of evidence of PW3 is  unreasonable
and perverse.   After recording a finding that the evidence  of  PW4  cannot
be rejected only on the ground that he was not  questioned  by  the  police,
the High Court proceeded to hold that the evidence of PW4 can be  used  only
for corroboration of PW3’s evidence.  Unlike PW5 and PW6 who were  cited  as
witnesses in the second list of witnesses  given  by  the  complainant  five
months after filing of the complaint, PW4 was named  as  a  witness  in  the
complaint.  Further, his statement was  recorded  by  the  Magistrate  under
Section 202 Cr. P.C.  There was a consolidated list of  witnesses  given  by
the prosecution.  The High Court has not given any  reason  as  to  why  the
evidence  of  PW4  can  be  used  only  for  corroboration.   On  a  careful
examination of the evidence of PW4 we are of  the  considered  opinion  that
the Trial Court was right in relying upon his testimony and the  High  Court
was not correct in holding that it can be used  only  for  corroboration  of
PW3’s evidence.  The finding of the High Court that A3,  A14,  A15  and  A18
are entitled for acquittal on the basis that PW3 did not speak  about  their
presence is liable to be set aside as PW4 had categorically mentioned  about
their involvement.
12.   The High Court held that the accused were not aware that the  deceased
was travelling in the bus and there is no evidence to show that they  formed
an unlawful assembly with a view to attack  and  commit  his  murder.    The
High Court referred to the clash between the supporters of CPI (M)  and  BJP
workers on 10.03.1993.  The High Court held that the deceased  was  attacked
due to political rivalry but there is no evidence to show that  the  members
of the unlawful assembly had a common object  to  commit  his  murder.   The
High Court also found that A1 and A21 alone inflicted stab injuries and  the
other members of the unlawful assembly who caused injuries on the non  vital
parts cannot be said to have shared the common object of causing  the  death
of Suresh Babu.  The common object of the unlawful assembly can be  gathered
from the nature of the assembly, arms used by them and the behaviour of  the
assembly at or before the scene of occurrence.   It is an  inference  to  be
deduced from the fact and circumstances of the case (See Lalji v.  State  of
U.P., (1989) 1 SCC 437 ¶8). It is also settled law that  the  mere  presence
in the unlawful assembly may vicariously  fasten  criminal  liability  under
Section 149 IPC (See. State of UP v. Dan Singh (1997) 3 SCC 747).
13.   We are not in agreement with the High Court regarding the  absence  of
common object of the A3, A4, A14, A15  and  A18.   The  evidence  on  record
shows that the deceased and accused belong to two political parties  opposed
to each other.  There were three other  incidents  of  clashes  between  the
rival groups.  The existence of a CPI (M) office at Ottappilavu junction  is
proved by a sketch of the site of the  incident.   The  accused  along  with
others assembled and were searching for BJP workers travelling in the  buses
that were passing through the junction.  We do not agree  with  the  finding
of the High Court that merely because the accused did  not  plan  to  murder
Suresh Babu (deceased), there was no common object.  The  common  object  of
the members of the unlawful assembly was to attack  any  BJP  supporter  who
was passing through Ottappilavu junction.  Unfortunately,  Suresh  Babu  was
in the bus and he was killed in the attack.
14.   Justice V. R. Krishna Iyer in Shivaji  Sahabrao  Bobade  v.  State  of
Maharashtra, (1973) 2 SCC 793 ¶ 6  held as follows:
      “The evil of acquitting a guilty person light heartedly as  a  learned
Author [Glanville Williams in ‘Proof of  Guilt’.]  has  sapiently  observed,
goes much beyond the simple fact  that  just  one  guilty  person  has  gone
unpunished. If unmerited acquittals become general, they tend to lead  to  a
cynical disregard of the law, and this in turn leads to a public demand  for
harsher legal  presumptions  against  indicted  “persons”  and  more  severe
punishment of those who are found guilty. Thus, too frequent  acquittals  of
the guilty may lead  to  a  ferocious  penal  law,  eventually  eroding  the
judicial protection of the guiltless. For all these reasons it  is  true  to
say, with Viscount Simon, that “a miscarriage of justice may arise from  the
acquittal of the guilty no less than from the conviction of the  innocent.…”
In short, our jurisprudential enthusiasm  for  presumed  innocence  must  be
moderated by  the  pragmatic  need  to  make  criminal  justice  potent  and
realistic.”

The point that remains to be considered is whether A3, A4, A14, A15 and  A18
are liable to be convicted under Section 302/149 IPC.  Taking  into  account
the fact that the incident occurred in the year  1993,  that  they  attacked
the deceased with sticks causing simple injuries on non-vital  parts,  their
conviction under Section 326/149 IPC will meet the  ends  of  justice.   The
Trial Court convicted  A4  under  Section  324/149  IPC  and  sentenced  for
imprisonment for 2 years along with his  conviction  under  Section  302/149
IPC.  The High Court acquitted A4 under Section 302/149 IPC and reduced  the
sentence under Section 324/149 IPC to 1 year.  A4  was  separated  from  A3,
A14, A15 and A18 only on the ground  that  PW3  spoke  about  his  presence.
Otherwise, the role ascribed to A4 is the same as that of A3, A14,  A15  and
A18.  In the result A3 Majeed, A4 Ummer alias Podi Ummer,  A14  Balaji,  A15
Muraleedharan and A18 Hasheem alias Muhammed  Hasheem  are  sentenced  to  7
years imprisonment under Section 326/149 IPC.  They shall  surrender  within
4 weeks to serve the sentence.  Criminal Appeal No. 661  of  2006  filed  by
the  complainant  against  the  acquittal  of  A5  Siddik,  A6  Asharaf,  A7
Sundaran,  A8  Rajan,  A9  Monutty  alias  Dharmarajan,  A10  Kunhippa,  A11
Kunhimon, A13 Sathyan, A16 Shaji Alias Kuttamon and A17 Kurukkal  Rassak  is
dismissed.  Criminal Appeal No. 400 of 2006 and 141 of  2007  filed  by  the
complainant and State respectively against the acquittal of  A3  Majeed,  A4
Ummer alias Podi Ummer, A14 Balaji, A15 Muralledharan and A18 Hasheem  alias
Muhammed Hasheem are allowed.



..……................................J
                                              [S. A. BOBDE]



                    ..……................................J
                                                     [L. NAGESWARA RAO]

New Delhi,
March 30, 2017
                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No.400 OF 2006


KATTUKULANGARA MADHAVAN (DEAD) THR. LRS.


                                            ...APPELLANT(S)

                                   VERSUS
MAJEED & ORS.
...RESPONDENT(S)


                                    WITH

                       CRIMINAL APPEAL No.661 OF 2006


KATTUKULANGARA MADHAVAN (DEAD) THR. LRS.


                                                ...APPELLANT(S)

                                   VERSUS

SIDDIK & ORS.
   ...RESPONDENT(S)

                                    WITH

                       CRIMINAL APPEAL No.141 OF 2007


STATE OF KERALA                   …..APPELLANT(S)

                                   VERSUS


ABOOBACKER         @         ARABI         ABOOBACKER         &         ORS.
                       ...RESPONDENT(S)


                                      1


                                 2 JUDGMENT

S. A. BOBDE, J.
      I am in complete agreement with my learned brother  Nageswara  Rao  J.
I would, however, like to deal with  one  submission  made  at  the  bar  in
relation to the culpability of  an  accused  participating  in  an  unlawful
assembly in general, and that of A4 Ummer alias Podi  Ummer  in  particular.
It has been argued on behalf of A4 that his mere presence  in  the  unlawful
assembly could not be inculpatory since none of the witnesses attributed  an
overt act to the accused.  Such a submission without any  concrete  evidence
enabling the Court to infer that the accused did  not  in  fact  harbor  the
same intention as that of the unlawful assembly, cannot be accepted.
      In the first place, the presence of an accused as part of an  unlawful
assembly, when not as a  curious  onlooker  or  a  bystander,  suggests  his
participation  in  the  object  of  the  assembly.   When  the   prosecution
establishes such presence, then it is the conduct of the accused that  would
determine whether he continued to participate in the unlawful assembly  with
the intention to fulfill the object of the  assembly,  or  not.    It  could
well be that an accused had no intention to participate  in  the  object  of
the assembly.  For example, if the object  of  the  assembly  is  to  murder
someone, it is possible that the accused  as  a  particular  member  of  the
assembly had no knowledge of  the  intention  of  the  other  members  whose
object was to murder, unless of course the evidence to  the  contrary  shows
such knowledge. But having participated and gone along with the  others,  an
inference whether inculpatory or exculpatory can be drawn from  the  conduct
of such an accused.  The  following  questions  arise  with  regard  to  the
conduct of such an accused:-
What was the point  of  time  at  which  he  discovered  that  the  assembly
intended to kill the victim?
Having discovered that, did he make any attempt to stop  the  assembly  from
pursuing the object?
If he did, and failed, did  he  dissociate  himself  from  the  assembly  by
getting away?
      The answer to these  questions  would  determine  whether  an  accused
shared the common  object  in  the  assembly.   Without  evidence  that  the
accused had no knowledge of the unlawful object of the assembly  or  without
evidence that after having gained knowledge, he  attempted  to  prevent  the
assembly from accomplishing the unlawful object, and without  evidence  that
after having failed to do so, the accused  disassociated  himself  from  the
assembly, the mere participation of an accused in such an assembly would  be
inculpatory.
      In the case of A4, there is no such evidence  on  record  that  having
participated in the unlawful assembly which resulted in the death of  Suresh
Babu, he made any attempt to either stop the incident from taking place,  or
having found out that he could not prevent it, dissociated himself from  the
assembly.
      Therefore, he must be held liable under Section 326/149 of the  Indian
Penal Code.

                                                  .....................………J.
                                                              [ S.A. BOBDE ]
NEW DELHI,
MARCH 30, 2017










On the other hand, according to the learned Amicus, permitting such vehicles to be sold or registered on or after 1st April, 2017 would constitute a health hazard to millions of our country men and women by adding to the air pollution levels in the country (which are already quite alarming).= The manufacturers of such vehicles were fully aware that eventually from 1st April, 2017 they would be required to manufacture only BS-IV compliant vehicles but for reasons that are not clear, they chose to sit back and declined to take sufficient pro-active steps. Accordingly, for detailed reasons that will follow, we direct that: (a) On and from 1st April, 2017 such vehicles that are not BS-IV compliant shall not be sold in India by any manufacturer or dealer, that is to say that such vehicles whether two wheeler, three wheeler, four wheeler or commercial vehicles will not be sold in India by any manufacturer or dealer on and from 1st April, 2017. (b) All the vehicle registering authorities under the Motor Vehicles Act, 1988 are prohibited for registering such vehicles on and from 1st April, 2017 that do not meet BS-IV emission standards, except on proof that such a vehicle has already been sold on or before 31st March, 2017. As mentioned above, detailed reasons for the above order will be given in due course.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION

           I.A.NO. 487/2017, I.A. NO. 491/2017, I.A. NO. 494/2017,
                    I.A. NO. 489/2017, I.A. NO. 495/2017
                                     in
                     Writ Petition(Civil) No.13029/1985

M.C.MEHTA                                          ...PETITIONER(s)

                          VERSUS

UNION OF INDIA & ORS.                        ...RESPONDENT(s)



                                  O R D E R


      We have heard the learned Solicitor General,  learned  Amicus  Curiae,
learned counsel for the interveners who are manufacturers of  vehicles  (two
wheelers, three wheelers, four wheelers and commercial vehicles – for  short
referred to as ‘such vehicles’) and learned counsel for the  association  of
dealers of such vehicles.
      The seminal issue in  these  applications  is  whether  the  sale  and
registration and therefore the commercial  interests  of  manufacturers  and
dealers of such vehicles that do not meet the  Bharat  Stage-IV  (for  short
'BS-IV') emission standards as on 1st April, 2017  takes  primacy  over  the
health hazard due to increased air pollution of millions of our country  men
and women. The answer is quite obvious.
      The controversy relates to the sale and  registration  (on  and  after
1st April, 2017) of such vehicles lying in stock with the manufacturers  and
dealers that meet the Bharat Stage III emission standards (for short  BS-III
standards) but do not meet the BS-IV emission standards.
       Briefly,  according  to  the  manufacturers,  they  are  entitled  to
manufacture such vehicles till 31st March, 2017 and they have  done  so.  In
so doing, they say that they have not violated any prohibition or  any  law.
Hence, the sale and registration of such vehicles on  and  from  1st  April,
2017  ought  not  to  be  prohibited.  They  say  that  they  will  not   be
manufacturing any vehicle that does  not  comply  with  the  BS-IV  emission
standards from and after 1st April, 2017 and therefore  the  only  issue  is
the sale and registration of  the  existing  stock  of  such  vehicles  that
comply with BS-III emission standards. They  say  that  they  may  be  given
reasonable time to dispose of the existing stock of such vehicles.
      On the other hand, according to the learned  Amicus,  permitting  such
vehicles to be sold  or  registered  on  or  after  1st  April,  2017  would
constitute a health hazard to millions of  our  country  men  and  women  by
adding to the air pollution levels in the country (which are  already  quite
alarming). It is her submission that  the  manufacturers  of  such  vehicles
were fully aware, way back in 2010, that all vehicles would have to  convert
to BS-IV fuel on and from 1st April, 2017 and therefore, they had more  than
enough time to stop the production of BS-III compliant vehicles  and  switch
over to the manufacture of BS-IV compliant  vehicles.  In  fact,  the  major
manufacturer of 4 wheeler vehicles, Maruti Sazuki  had  completely  switched
over to the manufacture  of  BS-IV  compliant  vehicles  a  few  years  ago.
However, for reasons best  known  to  manufacturers  of  such  vehicles  and
entirely at their peril, they did not  make  a  complete  switch  (though  a
partial switch has been made)  even  though  they  had  the  technology  and
technical know-how to do so.  Therefore, keeping the larger public  interest
in mind and the potential health hazard to millions of our country  men  and
women due to increased air pollution, there is no justification for  any  of
the manufacturers  not  shifting  to  the  manufacture  of  BS-IV  compliant
vehicles well before 1st April, 2017.
      It has been brought to our  notice  that  on  5th  January,  2016  the
learned  Solicitor  General  on  behalf  of  the  Government  of  India  had
submitted before this Court that requisite quality fuel for BS-IV  compliant
vehicles would be available (all over the  country)  with  effect  from  1st
April, 2017.[1] This was confirmed and reiterated by the  learned  Solicitor
General during the course of hearing and he stated that now from 1st  April,
2017 requisite quality fuel for BS-IV compliant vehicles would be  available
all over the country. He  also  pointed  out  that  the  refineries  of  the
Government of India had incurred an expenditure of  about  Rs.30,000  crores
for producing requisite fuel for BS-IV compliant vehicles.
      On balance, in our opinion,  the  submission  of  the  learned  Amicus
deserves to be accepted keeping in mind the potential health hazard of  such
vehicles being introduced on the road affecting millions of  our  people  in
the country. The number of such  vehicles  may  be  small  compared  to  the
overall number of vehicles in the country but the health of  the  people  is
far, far more important than the commercial interests of  the  manufacturers
or the loss that they are likely to  suffer  in  respect  of  the  so-called
small number of such vehicles.  The  manufacturers  of  such  vehicles  were
fully aware that eventually from 1st April, 2017 they would be  required  to
manufacture only BS-IV compliant vehicles  but  for  reasons  that  are  not
clear, they chose to sit back and declined  to  take  sufficient  pro-active
steps.
      Accordingly, for detailed reasons that will follow, we direct that:
(a)   On and  from  1st  April,  2017  such  vehicles  that  are  not  BS-IV
compliant shall not be sold in India by any manufacturer or dealer, that  is
to say that such vehicles whether two wheeler, three wheeler,  four  wheeler
or commercial vehicles will not be sold in  India  by  any  manufacturer  or
dealer on and from 1st April, 2017.
(b)   All the vehicle registering authorities under the Motor Vehicles  Act,
1988 are prohibited for registering such vehicles on  and  from  1st  April,
2017 that do not meet BS-IV emission standards, except on proof that such  a
vehicle has already been sold on or before 31st March, 2017.
      As mentioned above, detailed reasons  for  the  above  order  will  be
given in due course.


                                             .............................J.
                                    (MADAN B. LOKUR)

                                             .............................J.
                                    (DEEPAK GUPTA)
NEW DELHI
MARCH 29, 2017
-----------------------
[1]
      [2]               M.C. Mehta v. Union of India, (2016) 4 SCC 269