LAW FOR ALL

Sunday, January 9, 2011

ABSENCE OF IDENTIFICATION - NO CONVICTION

   REPORTABLE
   IN THE SUPREME COURT OF INDIA
   CRIMINAL APPELLATE JURISDICTION

   CRIMINAL APPEAL NO.1283 OF 2010

Sajjan Sharma ... Appellant

   Versus

State of Bihar ... Respondent

   JUDGMENT

AFTAB ALAM, J.

1. The appellant Sajjan Sharma stands convicted under section 302 of

the Penal Code and sentenced to rigorous imprisonment for life.

2. The prosecution case that led to the conviction and sentence of the

appellant is based on the Fard-e-beyan (Ext. 3) of one Mukesh Kumar

(PW4) recorded by the officer-in-charge of Bihpur Police Station on

November 24, 1994, at 4.00 p.m. at David Door Bahiar of village Marba (in

local dialect `bahiar' is the word for the agricultural lands at a distance from

the dwelling part of the village). In his statement before the police officer,

Mukesh Kumar stated that on that day at about 10.00 a.m., he along with his

uncles Narain Kunwar and Bauku Kunwar had gone to the corn fields in
2

David Door Bahiar carrying a licensed .315 rifle and some rounds. There,

they supervised the scattering of fertilizer over the land by the farm

labourers. The work was over by 2.30 p.m. and then the labourers left. In the

meanwhile, one Gunanand Sharma/Sanghai, (PW3) s/o Ram Avtar Sharma

of Amarpur Village came there to meet Narain Kunwar. He (the informant)

and his uncle Bauku Kunwar were chatting, sitting at the other corner of the

field. At that time the accused, Bodhan Rai @ Prabhu Narain Rai s/o Basu

Rai came there carrying a rifle which is called a semi-rifle. He was wearing

around his neck a belt full of cartridges. Accompanying him were Satto

Sharma s/o Lalho Sharma who was carrying a .315 rifle, Shambhu Sharma

s/o Satto Sharma carrying a .315 rifle, Sukesh Kunwar s/o Naney Kunwar

holding a `3 nought' rifle, Paro Kunwar s/o Naney Kunwar holding a `3

nought' rifle and three unknown persons who were also carrying rifles. All

the named accused were from the same village as the informant.

3. All the accused went up to his uncle, who on seeing them asked

Gunanand to call the informant and his other uncle Bauku. As Gunanand

came towards them, Bodhan Rai snatched the rifle from the hands of his

uncle and pushed him towards south. Watching this, the informant, Bauku

Kunwar and Gunanand started shouting as to where they were taking his

uncle. Suddenly, Bodhan Rai fired a shot from his rifle in the air and warned
3

them to go back, whereupon they got frightened and slowly fell back. Then,

he took his uncle to the field of Laxmi Mishra that was vacant. All the while

they were shouting and raising alarm to save their uncle. Then, Bodhan Rai,

calling his uncle as "the bastard" exclaimed that he should be killed there

only, lest others would come on alarm. Uttering those words, Bodhan Rai

fired a shot hitting his uncle in the abdomen. His uncle fell down twisting on

the ground. Then, Bodhan Rai again said that they would torture the bastard

to death. On this, Shambhu Sharma and Sukesh Sharma also fired shots at

him. His uncle was writhing in pain when Bodhan Rai put the barrel of the

rifle near the ears of his uncle and fired another shot and said to his fellow

accused that they should go as he was finished.

4. The informant further said that they were watching from a little

distance when Bodhan Rai turned towards them and said that if they gave

evidence, they would also meet the same fate. The informant also said that

his uncle was killed due to enmity from before, and earlier also Bodhan Rai

had tried to kill his uncle. The informant further said that after the accused

persons had left, he went near his uncle and saw that his uncle was lying

dead with the face downward on the ground. On the report of the gun shots

and their shouting, several persons from the vicinity gathered there. Bodhan
4

Rai also carried away the licensed rifle of his uncle. He did not remember

the number of his rifle.

5. The informant concluded by saying that his uncle was killed by

Bodhan Rai @ Prabhu Narain Rai s/o Basu Rai, Satto Sharma s/o Lalho Rai,

Shambhu Sharma s/o Satto Sharma, Sukesh Kunwar s/o Naney Kunwar,

Paro Kunwar s/o Naney Kunwar, and other unknown persons, colluding

together, due to old enmity, who also snatched away his licensed rifle

no.AB0202.

6. He finally said that what was recorded by the police officer was his

statement; he had read and understood it and finding it true put his signature

in the presence of witnesses. The Fard-e-beyan was signed besides the

informant Mukesh Kumar, by Bauku Kunwar and Gunanand Sanghai as

witnesses.

7. The Fard-e-beyan was incorporated in the formal FIR (Ext. 5),

instituted at 9.00 p.m. on the same date, giving rise to Bihpur P.S. case

no.224/94 dated November 24, 1994 under sections 302, 379, 34 of the

Penal Code and under section 27 of the Arms Act.

8. The first thing that needs to be noted in connection with the Fard-e-

beyan is that the appellant Sajjan Sharma is not named there as one of the

accused. The Fard-e-beyan was recorded soon after the occurrence when
5

there was hardly any time for deliberation and for false implication of

anyone who was actually not among the accused. It gave the names of five

accused, apart from the three persons who were unknown. All the five

named accused were from the same village as the informant and his uncle

Bauku Kunwar. Among the five accused the Fard-e-beyan gave the names of

Satto Sharma, the father of the appellant and his brother Shambhu Sharma,

the other son of Satto Sharma. More importantly, Bauku Kunwar, who later

named the appellant in his deposition before the court was not only present

at the time of recording of the Fard-e-beyan but had actually signed it as one

of two witnesses.

9. The police after investigation submitted chargesheet against seven

accused persons of whom five were named in the Fard-e-beyan/FIR and two

namely, Sajjan Sharma (the appellant) and Mantu Chaudhri were not named

in the Fard-e-beyan/FIR. In the charge-sheet three accused namely, Sukesh

Kumar, Paro Kunwar and Mantu Chaudhri were shown as absconders and

the rest were in custody. Later Paro Kunwar was apprehended and he was

also put on trial along with the accused who were in custody. The ACJM,

Naugachia separated the case of the two accused who remained absconding

by order dated August 16, 1996, and the other five accused were put on trial.

Later on Satto Sharma, the father of the appellant and the accused Shambhu
6

Sharma died and in so far as he was concerned, the proceedings abated. The

trial continued in respect of the four accused, including the appellant.

10. On the basis of the evidences adduced before it, the trial court (First

Additional District and Sessions Judge, Naugachia) found and held that the

prosecution was able to fully establish the guilt of the accused and by

judgment and order dated August 2, 2001, convicted all the four accused

under section 302 of the Penal Code and section 27 of the Arms Act and

sentenced them to rigorous imprisonment for life under section 302 of the

Penal Code and rigorous imprisonment for 1 year under section 27 of the

Arms Act. Bodhan Rai was also convicted under section 379 of the Penal

Code and sentenced to rigorous imprisonment for 3 years. All the sentences

of the accused were directed to run concurrently.

11. Bodhan Rai died after the judgment of the trial court. The rest of the

three accused, including the appellant preferred separate appeals before the

Patna High Court (being Criminal Appeal Nos. 391, 394 and 427 of 2001).

All the three appeals were consolidated and heard together and were

dismissed by judgment and order dated September 10, 2007. Against the

judgment of the High Court, the two brothers Shambhu Sharma and Sajjan

Sharma (the present appellant) jointly filed the SLP. (It is reported the third

accused Paro Kunwar did not file any appeal against the judgment of the
7

High Court). The SLP insofar as Shambhu Sharma is concerned was

dismissed but the appellant was granted leave to appeal. That is how the

appellant alone stands in appeal before this Court from amongst the several

accused who were charge-sheeted and who later faced trial on the charge of

killing Narain Kunwar.

12. Before adverting to the merits of the appellant's case, we need to take

a look at the charge framed against the accused. Curiously, the trial court

charged all the five accused (before Satto Sharma had died) only under

section 302 of the Penal Code, without the aid of either section 149 or

section 34 of the Penal Code. Equally inexplicably, the trial court did not

charge the accused under section 148 of the Penal Code. Apart from section

302 of the Penal Code all the accused were charged under section 27 of the

Arms Act; accused Bodhan Rai was additionally charged under section 379

of the Penal Code for taking away the rifle of the deceased.

13. Taking advantage of the highly flawed charge framed by the trial

court, Mr. Nagendra Rai, Senior Advocate, appearing for the appellant

submitted that the appellant's conviction cannot be legally sustained under

section 302 of the Penal Code alone. Mr. Rai further submitted that both

PWs 4 and 6, the two prosecution witnesses who in their deposition before

the court mentioned the name of the appellant did not attribute to him any
8

overt act at all but simply named him among the accused. Hence, even if the

prosecution evidence were to be accepted without any question the appellant

could not be held guilty of committing murder without imputing to him a

shared object or intention to commit the offence with the other accused.

14. Here we may also take a look at the examination of the appellant by

the court under section 313 of the Code of Criminal Procedure. This

examination too is highly unsatisfactory and sketchy. The first question by

the court to the appellant (and for that matter to all the accused) was:

   "There is evidence against you that on 24.11.94 at Davidor
   Bahiyar in concert with the other accused (you) killed Narain
   Kunwar by firing shot at him."

The appellant replied:

   "It is wrong (to say that)"

Whereupon the court put the second and the last question:

   "In defence you wish to say anything?"

The appellant replied:

   "I am innocent."

15. We are constrained to say that this is not an isolated case but it is

almost a stereotype. It is our experience that in criminal trials in Bihar no

proper attention is paid to the framing of charges and the examination of the

accused under section 313 of the Code of Criminal Procedure, the two very
9

important stages in a criminal trial. The framing of the charge and the

examination of the accused are mostly done in the most unmindful and

mechanical manner. We wish that the Patna High Court should take note of

the neglectful way in which some of the Courts in the State appear to be

conducting trials of serious offences and take appropriate corrective steps.

16. Having regard to the charge that was framed against the appellant and

his examination by the court under section 313 of the Code of Criminal

Procedure the point raised by Mr. Rai cannot be said to be entirely without

substance but we see no reason to go into that technical aspect of the matter

since we find that the appellant has a good case on merit as well.

17. The prosecution examined eight witnesses in support of its case. PWs

1 and 2 (Bihari Mandal and Sadanand Kumar) stated that they did not know

anything about the occurrence and they had not given any statement before

the police. They were declared hostile. PW3 (Gunanand Sharma) who was

the brother-in-law of the deceased, Narain Kunwar and who was not only

present at the time of recording of the Fard-e-beyan but had also signed it as

a witness along with Bauku Kunwar also turned hostile and said that he did

not know who killed Narain Kunwar. In cross-examination he also said that

his brother-in-law had enmity with a large number of people. PW4, Mukesh

Kumar, the informant and PW6, Bauku Kunwar are the two eye witnesses.
10

PW5, Binodanand Kumar did not claim to have witnessed the actual

occurrence but said that on the date of occurrence, at about 2:30 in the

afternoon he heard the report of the gun shots and saw some of the accused

fleeing away with .315 rifles. PW7 is the doctor who conducted post mortem

on the body of Narain Kunwar. PW8, Ranjit Kumar Mishra is the

investigating officer of the case.

18. In view of the evidences of PWs 4, 6 and 5 coupled with the medical

evidence there is no room for doubt that Narain Kunwar was killed in the

manner as stated by the prosecution. But the question is whether or not the

appellant was one of the accused taking part in the commission of the

offence.

19. PW4, Mukesh Kumar in his deposition before the court stated what he

had said in the Fard-e-beyan. He did not name the appellant as one of the

accused. The name of the appellant figures in the deposition of PW6, Bauku

Kunwar. PW6 named the appellant and Mantu Chaudhri (absconding) and

Munna Sharma (not charge-sheeted), in addition to the five accused named

in the FIR. He did not assign them any particular weapon but said that they

were carrying different arms and weapons. He then stated that all the

accused surrounded Narain but beyond this he did not assign any role to the

appellant. PW5, Binodanand Kumar stated that on the date of the occurrence
11

he was scattering fertilizer in his banana field when all of a sudden on

hearing the sound of firing and noise, he looked around and saw the accused

persons, including the appellant coming from the Gohal. He saw a rifle in

the hands of Shambhu Sharma and 2 rifles in the hands of Bodhan Rai who

passed him close by. The rest of the accused were carrying some small and

big `3 noughts'. In cross examination he stated that he had told Mukesh

(PW4) that he had seen the accused persons running away. But he had not

said the names of all the accused persons to Mukesh. He further stated that

the Inspector recorded his statement about 10-20 days after the occurrence.

20. It is noted above that the appellant was not named in the FIR. The

appellant lived in the same village as the informant and PW6, Bauku

Kunwar. The appellant's father and brother were seen as members of the

unlawful assembly and were duly named in the Fard-e-beyan/FIR. The

weapons being carried by them (.315 rifle) were also identified and

expressly mentioned in the Fard-e-beyan. In regard to Shambhu Sharma, it

was stated that after the first shot fired by Bodhan Rai, he and Sukesh

Sharma also fired at the victim. In those circumstances, had the appellant

been actually present at the place of occurrence, there is no reason why his

name along with his father and brother, should not have figured in the FIR.

In case the informant missed him, PW6 Bauku Sharma would have given his
12

name who was undeniably present at the time of recording of the Fard-e-

beyan and who had signed it as one of the witnesses.

21. PW6 in his deposition before the court made a statement suggesting

that his statement was recorded by the police on the date of the occurrence

itself after recording the statement of Mukesh but Mr. Nagendra Rai

submitted that from the records it appeared that his statement was taken by

the police on the day following the date of occurrence.

22. In this country, even while correctly naming the accused in cases of

serious offences, it is endemic that some other innocent persons or even such

of the members of the family of the accused who might not be present at the

time of commission of offence are also roped in and falsely implicated. Satto

Sharma, named as accused no.5 in the FIR, had two sons- Shambhu Sharma

and Sajjan Sharma, the present appellant. Satto Sharma himself and Sambhu

Sharma were duly named as the accused. Had the appellant been identified

at the time of commission of the offence, his name would have surely

figured in the FIR. It appears that though he was not identified as one of the

accused at the time of the commission of the offence, it was later realized

that one of the sons of Satto Sharma was left out and he too was later named

among the accused.
13

23. For the reasons as discussed above, we are unable to accept the

evidence of PW6 insofar as he names the appellant also as one of the

members of the unlawful assembly.

24. This leaves PW5 only who claims to have seen the appellant among

the accused while they were going away after the commission of the offence.

But his statement was admittedly recorded by the police after ten or twenty

days of the occurrence and till then he had not disclosed the name of the

appellant as one of the accused to Mukesh or to any one else. In the facts and

circumstances as discussed above, it becomes difficult even to accept the

testimony of PW5, Binodanand Kumar insofar as the appellant is concerned.

25. In this state of evidence, it will not be wholly safe to maintain the

conviction of the appellant under section 302 of the Penal Code and

applying the rule of caution, he must be given the benefit of doubt. We,

accordingly, allow the appeal and set aside the conviction of the appellant

and the sentence given to him. The appellant is directed to be released

forthwith unless he is wanted in some other criminal case.
14

26. Let a copy of this order be placed before the Hon'ble Judge of the

Patna High Court, in-charge of the State's Judicial Academy.

   ....................................J.
   (AFTAB ALAM)

   ....................................J.
   (R.M. LODHA)

New Delhi
January 7, 2011.

ABSENCE OF CHARGE IS NOT FATAL FOR CONVICTION UNDER SEC.306 I.P.C

   REPORTABLE

   IN THE SUPREME COURT OF INDIA
   CRIMINAL APPELLATE JURISDICTION

   CRIMINAL APPEAL NO. 590 OF 2005

Narwinder Singh ... Appellant

VERSUS

State of Punjab ...Respondent

   JUDGMENT

SURINDER SINGH NIJJAR, J.

   1. This appeal has been filed against the

   judgment and order dated 6th October, 2004 of

   the Punjab and Haryana High Court at

   Chandigarh in Criminal Appeal No. 406-SB of

   1992 wherein the appellant has been convicted

   under Section 306 Indian Penal Code (`IPC' for

   short) and sentenced to rigorous imprisonment

   for two years and to pay a fine of Rs.1,000/-

   and in default of payment thereof to undergo

   further rigorous imprisonment for one month.

   1
2. We may briefly notice the facts.

Sukhjit Kaur, alias Rani was married to Narwinder Singh

of Village Mehdipur on 30th September, 1984. A male

child had first been born to the couple and at the time of

the incident, the wife was pregnant a second time.

According to the in-laws of the appellant, they had given

sufficient dowry at the marriage of their daughter to the

appellant. It appears that the appellant and his parents

Daljit Singh and Joginder Kaur remained dissatisfied.

About two months after the marriage, Sukhjit Kaur

informed her mother Gursharan Kaur that her in-laws

were asking her to bring valuable articles such as a

scooter from her parents. It is also the case of the

prosecution that an additional demand of Rs.5,000/- was

made by Narwinder Singh, in the year 1986, which

amount too was paid by his mother-in-law Gursharan

Kaur. Unfortunately, on 25th May, 1987, Bhai Davinder

Singh, father of Sukhjit Kaur was murdered by

extremists. After the death of Bhai Davinder Singh, there

   2
was sea-change in the attitude of the appellant and her

parents, and they started maltreating her. About six

months prior to the fatal incident, there had been a

quarrel between the husband and wife, which was settled

with the intervention of several relatives including Kulbir

Singh and Onkar Singh, PW-5. About ten days prior to

the incident, Sukhjit Kaur went to Onkar Singh's house

in Village Nabipur and informed him that the accused

were demanding Rs.50,000/-. They were saying that her

late father had left enough money for the family and that

she should get her share. Onkar Singh told her that he

would inform Gursharan Kaur, who was then living in

England about the demand and seek instructions from

her. Unfortunately, on 30th May, 1988, Onkar Singh

came to know about the death of his niece Sukhjit Kaur

(hereinafter referred to as `the deceased'). He alongwith

Gurjit Kaur, sister of the deceased, Hanwant Singh,

Darshan Singh and Mohan Singh went to village

Mehdipur and saw the dead body of Sukhjit Kaur alias

Rani lying in the house. Blood was oozing from her nose.

   3
Onkar Singh, thereafter, lodged a FIR naming the

accused as having been responsible for her death.

Initially, a case under Section 306 IPC was registered

against the accused but, a charge under Section 304-B of

the IPC was ultimately framed by the Court.

3. In support of its case, the prosecution relied inter-

alia on the evidence of Kulbir Singh (PW-2) and Onkar

Singh (PW-5), both uncles of the deceased, Gursharan

Kaur (PW-6) the mother and Gurjit Kaur (PW-7). The

sister of Sukhjit Kaur stated that the demands made by

the accused had been satisfied off and on and that the

behaviour of the accused had compelled Sukhjit Kaur to

commit suicide. The prosecution also relied upon the

evidence of Dr. H.S. Bajwa (PW-3), who on the basis of

the report of the Forensic Science Laboratory opined that

she had died of Organo Phosphorus poisoning. A large

number of documents including some letters allegedly

written by the deceased to her family members and by

them to her were also produced in evidence.

   4
4. The prosecution case was then put to the accused

and their statements recorded under Section 313 of

Cr.P.C. They denied the allegations levelled against them

and pleaded that as a matter of fact Sukhjit Kaur had

fallen ill as she was pregnant and depressed after the

murder of her father (to whom she had been deeply

attached) and that she had been taken to Oberoi Hospital

by her father-in-law on seeing her condition

deteriorating, and that despite all efforts on the part of

the accused to save her, she had died. The accused also

produced three witnesses in defence, namely Hardev

Singh (DW-1), Jarnail Singh (DW-2) and Pritam Singh

(DW-3), as also certain letters written inter-se the parties.

5. The trial court held that from the evidence of Kulbir

Singh, Onkar Singh, Gursharan Kaur and Gurjit Kaur

(PWs) and the letter Ex.P.1, it appeared that demands for

dowry had been made by the accused from Sukhjit Kaur

time and again and that she had been harassed and thus

   5
compelled to commit suicide. It further held that the

ingredients of Section 304-B IPC were satisfied on the

presumptions raised under Section 113-B of the

Evidence Act with regard to dowry deaths and that the

letters Exs. PA, PB, PC, PD and PE did not in any way

show that the relation between the parties had been

cordial. The trial court accordingly convicted the

accused for an offence punishable under Section 304-B

IPC, and sentenced them to undergo rigorous

imprisonment for seven years and to fine and in

default of payment of fine to undergo further rigorous

imprisonment for a specified period.

6. Aggrieved, against the aforesaid conviction and

sentence, the appellant and his parents filed an appeal

before the Punjab and Haryana High Court. Upon

reconsideration of the entire evidence, the High Court

concluded that the deceased had not committed suicide

on account of demands for dowry but due to harassment

caused by the husband, in particular. The appeal was,

   6
therefore, partly allowed. The High Court acquitted the

parents of the appellant. However, the conviction of the

appellant was converted from one under Section 304-B

IPC to Section 306 IPC. He was sentenced to undergo

rigorous imprisonment for two years and to pay a fine of

Rs.1,000/- and in default of payment, he has to undergo

further rigorous imprisonment for one month. The

aforesaid judgment is challenged in the present appeal.

7. Mr. Vikram Mahajan, learned senior counsel

appearing for the appellant submitted that there is no

distinction between the case of the appellant and that of

his parents, who have been acquitted. The High Court

having acquitted the parents, the appellant also could

not have been convicted. He further submitted that this

was a plain and simple case of suicide due to the mental

state of the deceased. He submits that since the murder

of her father by extremists, the deceased had been under

acute depression and she, therefore, had suicidal

tendencies. Learned senior counsel further submitted

   7
that there is no evidence on the record to show that the

victim had died an unnatural death. Lastly, it is

submitted that the High Court committed a grave error in

convicting the appellant under Section 306 IPC. It is

submitted by Mr. Mahajan that the nature of offence

under Section 304-B IPC is distinct and different from

the offence under Section 306 IPC. The basic constituent

of an offence under Section 304-B IPC is homicidal death

(dowry death) and those of Section 306 IPC is suicidal

death and abetment thereof. Furthermore, according to

the learned senior counsel, the nature of evidence

required under both the categories of offences are totally

different. The appellant was never charged under

Section 306 IPC, nor is there any evidence on the record

to sustain the conviction under Section 306 IPC.

8. Mr. Kuldip Singh, learned counsel, appearing for

the State of Punjab submits that the appellant is in fact

fortunate being convicted only under Section 306 IPC.

There is overwhelming evidence to prove that the

   8
appellant and his parents had been harassing the

deceased to bring more dowry. He submits that there is

evidence that the wife had been subjected to harassment

on account of dowry immediately after the marriage. The

death occurred within seven years of marriage, therefore,

by virtue of Section 113-B of the Evidence Act, the trial

court had rightly presumed that the appellant and his

parents had committed the offence under

Section 304-B IPC.

9. We have considered the submissions made by the

learned counsel. The High Court, upon close scrutiny of

the evidence, concluded that there was evidence of a

quarrel between the husband and wife about six months

prior to the occurrence, which had been settled with the

intervention of the eldest. There were complaints that

the deceased did not know how to do any household

work. The in-laws had also complained that she was not

well mannered. Their ill-treatment of the wife escalated

after the murder of her father by extremists. It was at

   9
that stage the husband had started demanding that the

deceased should claim one of the two houses left behind

by her father in Village Nabipur. About ten months prior

to her death, she was actually sent by the appellants to

demand possession of the house. The appellant and his

parents were suspecting that the sister of the deceased,

Gurjit Kaur had taken everything after the death of the

father of the deceased. The appellant and his parents

were insisting that the house be legally conveyed in the

name of the deceased. However, mother of the deceased

left for England after the first death anniversary of her

husband in May, 1988. The High Court, on examination

of the entire evidence, concluded that the deceased had

not committed suicide on account of demands for dowry

but due to harassment caused by her husband, in

particular. The deceased had committed suicide by

drinking Organo Phosphorus poison. In view of the

findings recorded, the High Court converted the

conviction of the appellant from one under Section 304-B

IPC to one under Section 306 IPC.

   10
10. We do not find much substance in the submission

of Mr. Mahajan that the High Court could not have

convicted the appellant under Section 306 IPC as the

charge had been framed under Section 304-B IPC. On

scrutiny of the entire evidence, the High Court has come

to the conclusion that the deceased had not committed

suicide on account of demands for dowry but due to

harassment caused by her husband, in particular. The

harassment by the appellant had compounded the acute

depression from which the deceased was suffering after

the murder of her father. There was no evidence of any

demand for dowry soon before the death, and there was

no demand whatsoever that the house in question should

be transferred to either of the accused. Under

Section 304-B IPC, the cruelty or harassment by her

husband or any relative of her husband "for, or in

connection with, any demand for dowry" is a prelude to

the suicidal death of the wife. Such suicidal death is

defined as `dowry death'. The High Court has recorded a

   11
firm finding that the harassment was not for or in

connection with any demands for dowry. But, at the

same time, the High Court has concluded that the wife

committed suicide due to the harassment of the

appellant, in particular. In such circumstances, the High

Court was, therefore, fully justified in convicting the

appellant under Section 306 IPC.

11. We also do not find any substance in the

submission of Mr. Mahajan that the appellant could not

have been convicted under Section 306 IPC in the

absence of a charge being framed against him under the

aforesaid section. The learned counsel had relied upon

the judgments of this court in the case of Sangaraboina

Sreenu Vs. State of A.P.1 and Shamnsaheb M. Multtani

Vs. State of Karnataka2. We are of the opinion that the

aforesaid judgments are of no assistance to the

appellant, in the facts and circumstances of the present

case. We may, however, notice the observations made
1
   (1997) 5 SCC 348
2
   (2001) 2 SCC 577

   12
therein. In the case of Sangaraboina Sreenu (supra), it

was observed as follows:

"This appeal must succeed for the simple reason that having
acquitted the appellant of the charge under Section 302 IPC --
which was the only charge framed against him -- the High Court
could not have convicted him of the offence under Section 306 IPC.
It is true that Section 222 CrPC entitles a court to convict a person
of an offence which is minor in comparison to the one for which he
is tried but Section 306 IPC cannot be said to be a minor offence in
relation to an offence under Section 302 IPC within the meaning of
Section 222 CrPC for the two offences are of distinct and different
categories. While the basic constituent of an offence under Section
302 IPC is homicidal death, those of Section 306 IPC are suicidal
death and abetment thereof."

In the present case, both the trial court and the High

Court have held that the deceased had committed

suicide. Therefore, the nature of the offence under

Sections 304-B and 306 IPC are not distinct and different

categories.

Again in the case of Shamnsaheb M. Multtani (supra),

this court observed:

"18. So when a person is charged with an offence under Sections
302 and 498-A IPC on the allegation that he caused the death of a
bride after subjecting her to harassment with a demand for dowry,
within a period of 7 years of marriage, a situation may arise, as in
this case, that the offence of murder is not established as against
the accused. Nonetheless, all other ingredients necessary for the
offence under Section 304-B IPC would stand established. Can the
accused be convicted in such a case for the offence under Section
304-B IPC without the said offence forming part of the charge?

   13
19. A two-Judge Bench of this Court (K. Jayachandra Reddy and
G.N. Ray, JJ.) has held in Lakhjit Singh v. State of Punjab1 that if a
prosecution failed to establish the offence under Section 302 IPC,
which alone was included in the charge, but if the offence under
Section 306 IPC was made out in the evidence it is permissible for
the court to convict the accused of the latter offence.

20. But without reference to the above decision, another two-
Judge Bench of this Court (M.K. Mukherjee and S.P. Kurdukar,
JJ.) has held in Sangaraboina Sreenu v. State of A.P. that it is
impermissible to do so. The rationale advanced by the Bench for
the above position is this:(SCC p.348, para 2)
"It is true that Section 222 CrPC entitles a court to convict a
person of an offence which is minor in comparison to the one for
which he is tried but Section 306 IPC cannot be said to be a minor
offence in relation to an offence under Section 302 IPC within the
meaning of Section 222 CrPC for the two offences are of distinct
and different categories. While the basic constituent of an offence
under Section 302 IPC is homicidal death, those of Section 306
IPC are suicidal death and abetment thereof."

21. The crux of the matter is this: Would there be occasion for a
failure of justice by adopting such a course as to convict an
accused of the offence under Section 304-B IPC when all the
ingredients necessary for the said offence have come out in
evidence, although he was not charged with the said offence? In
this context a reference to Section 464(1) of the Code is apposite:
"464. (1) No finding, sentence or order by a court of competent
jurisdiction shall be deemed invalid merely on the ground that no
charge was framed or on the ground of any error, omission or
irregularity in the charge including any misjoinder of charges,
unless, in the opinion of the court of appeal, confirmation or
revision, a failure of justice has in fact been occasioned thereby".
(emphasis supplied)

22. In other words, a conviction would be valid even if there is any
omission or irregularity in the charge, provided it did not occasion
a failure of justice.

23. We often hear about "failure of justice" and quite often the
submission in a criminal court is accentuated with the said
expression. Perhaps it is too pliable or facile an expression which
could be fitted in any situation of a case. The expression "failure of
justice" would appear, sometimes, as an etymological chameleon

   14
(the simile is borrowed from Lord Diplock in Town Investments Ltd.
v. Deptt. of the Environment). The criminal court, particularly the
superior court should make a close examination to ascertain
whether there was really a failure of justice or whether it is only a
camouflage."

We are of the considered opinion that the aforesaid

observations do not apply to the facts of the present case.

The High Court upon meticulous scrutiny of the entire

evidence on record rightly concluded that there was no

evidence to indicate the commission of offence under

Section 304-B IPC. It was also observed that the

deceased had committed suicide due to harassment

meted out to her by the appellant but there was no

evidence on record to suggest that such harassment or

cruelty was made in connection to any dowry demands.

Thus, cruelty or harassment sans any dowry demands

which drives the wife to commit suicide attracts the

offence of `abetment of suicide' under Section 306 IPC

and not Section 304-B IPC which defines the offence and

punishment for `dowry death'.

   15
12. It is a settled proposition of law that mere omission

or defect in framing charge would not disable the Court

from convicting the accused for the offence which has

been found to be proved on the basis of the evidence on

record. In such circumstances, the matter would fall

within the purview of Section 221 (1) and (2) of the

Cr.P.C. In the facts of the present case, the High Court

very appropriately converted the conviction under

Section 304-B to one under Section 306 IPC.

13. In our opinion, there has been no failure of justice

in the conviction of the appellant under Section 306 IPC

by the High Court, even though the specific charge had

not been framed.

14. Therefore, we see no reason to interfere with the

judgment of the High Court. The appeal is accordingly

dismissed.

   ..................................J.
   [B.SUDERSHAN REDDY]

   16
............................
   .........J. [SURINDER SINGH NIJJAR]

NEW DELHI;
JANUARY 05, 2011.

   17

Friday, January 7, 2011

WAS THE ACCIDENT INVOLVING EXPLOSION AND FIRE IN THE PETROL TANKER CONNECTED WITH THE USE OF TANKER AS A MOTOR VEHICLE

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3744 OF 2005

New India Assurance Company Ltd. ... Appellant

Versus

Yadu Sambhaji More & Ors. ... Respondents

JUDGMENT

AFTAB ALAM, J.

1. This is an appeal under Article 133 of the Constitution of India read

with Order XV Rule 1 of the Supreme Court Rules,1966 on a certificate

granted by the Bombay High Court under Article 134A(b) of the

Constitution. The appellant is the insurance company and it seeks to assail

the judgment and order passed by the High Court in an appeal from a motor

accident claim case. In order to properly appreciate the issue in regard to

which the High Court has granted the certificate to appeal, it would be useful

to take note of some basic facts of the case.
2

2. In the early hours of October 29, 1987 a petrol tanker bearing

registration no.MXL7461, was proceeding on National Highway 4, coming

from the Pune side and going towards Bangalore. As it reached near village

Kavathe, in the district of Satara, Maharashtra, a truck, bearing registration

no.MEH4197, laden with onions, was coming from the opposite direction.

At the point where the two vehicles crossed each other, there was a pile of

rubble on the left side of the road. As the two vehicles crossed each other,

the rear right side of the petrol tanker was hit by the rear left side of the

truck. As a result of the impact, the petrol tanker was thrown off the road

and it came to rest on its left side/ cleaner's side on the kutcha ground, about

5 feet below the road. As a result of the collision and the falling down of the

petrol tanker on its side, petrol started leaking from the tanker. The tanker

driver was unable to stop the leak even though he tried to tighten the lid. The

accident took place at around 3:15am. Shortly after the accident, another

tanker, coming from the Bombay side passed by. In that tanker, apart from

the driver, there was also an officer of the Indian Oil Company. Both of

them assured the driver of the fallen down tanker that they would report the

accident at the police station and asked him to wait near the place of the

accident. Later on, yet another tanker from Sangli arrived at the spot and

then the cleaner of the ill-fated tanker and the owner of the Sangli tanker
3

together went to village Kavathe in search of a telephone to inform the

tanker owner about the accident. After they came back from the village all of

them, the driver and the cleaner of the tanker that had met with accident and

the owner, the driver and the cleaner of the tanker coming from Sangli

waited near the accident site. At daybreak, the local people started collecting

near the fallen down tanker and some of them brought cans and tried to

collect the petrol leaking out from the tanker. The driver of the tanker tried

to stop them from collecting petrol or even going near the tanker, explaining

to them that doing so would be risky and dangerous. No one, however,

listened to him and he was even manhandled. In the melee, the petrol caught

fire and there was a big explosion in which 46 persons lost their lives.

3. The heirs and legal representatives of those people who died at the

accident site filed claim petitions for compensation under section 110A of

the Motor Vehicles Act, 1939 before the MACT, Satara, against the owner

of the petrol tanker and its insurer, the present appellant. In all the cases,

claims were also made for payment of Rs.15,000/- as no fault compensation

under section 92A of the Act. The owner of the tanker and the insurer (the

respondents before the Tribunal) contested the claim petitions filed by the

applicants under section 92A of the Act and questioned the jurisdiction of

the Claims Tribunal to entertain such petitions on the ground that the fire
4

and the explosion causing the death of those who had assembled at the

accident site could not be said to be an accident arising out of the use of a

motor vehicle. The Claims Tribunal upheld the objection raised by the

insurer and the owner of the petrol tanker, and by a common order dated

December 2, 1989, dismissed all the claim petitions filed under section 92A

of the Act on the ground that the fire and the explosion could not be said to

be accident arising out of the use of the petrol tanker and hence, the

provisions of section 92A of the Act were not attracted. The Claims Tribunal

pointed out that there was a time gap of about 4 hours between the tanker

meeting with the road accident and the fire and explosion of the tanker and

there was absolutely no connection between the road accident and the fire

accident that took place about 4 hours later. The Claims Ttribunal also

observed that the local people were trying to steal petrol from the petrol

tanker and the fire and the explosion were the result of their attempt to steal

the petrol leaking out from the tanker. In other words, it was the people who

had assembled at the accident site and some of whom eventually died as a

result of it who were responsible for causing the fire and explosion accident

and the later accident had no causal connection with the earlier road accident

of the tanker. The fire and the explosion could not be said to be an accident

arising out of the use of the tanker. Against the order of the Claims Tribunal
5

passed on December 2, 1989, appeals were filed before the High Court. One

such appeal was filed by Vatschala Uttam More, whose son Deepak Uttam

More was one of the persons who died as a result of injuries caused by the

fire and explosion of the petrol tanker. A learned single judge of the High

Court allowed the appeal and by judgment dated February 5, 1990, reversed

the order passed by the Claims Tribunal. Against the decision of the single

judge, the owner of the petrol tanker and the insurance company filed a

Letters Patent Appeal which was dismissed by a division bench of the High

Court by judgment dated August 16, 1990.

4. The owner of the petrol tanker and the insurance company then

brought the matter to this court in SLP no.14822 of 1990 challenging the

judgment and order of the High Court passed on August 16, 1990. The SLP

was dismissed by this court by judgment and order passed on July 17, 1991.

In this judgment, reported as Shivaji Dayanu Patil & Anr. vs. Vatschala

Uttam More, (1991) 3 SCC 530 the Court considered at length, the questions

whether the fire and explosion of the petrol tanker in which Deepak Uttam

More lost his life could be said to have resulted from an accident arising out

of the use of a motor vehicle, namely the petrol tanker. The court answered

the question in the affirmative, that is to say, in favor of the claimant and

against the insurer.
6

5. The judgment of this Court, thus, put an end to the objections raised

by the owner and the insurer of the petrol tanker against the claim of no fault

compensation by and/or on behalf of the victims of the fire and explosion

accident.

6. But next came the turn of the main applications filed under section

110A of the Act. There were altogether 44 claim applications in which, case

no.168 of 1988 was treated as the lead case. In the main claim cases too, the

owner and the insurer of the tanker inter alia raised the same objections as

taken earlier against the claim of no fault compensation. In view of the

pleadings of the parties, the Claims Tribunal framed five issues in which

issue no.3, being relevant for the present, was as follows:

"3. Whether sustaining of injuries was (sic) arising out of use of
the petrol tanker and was the result of negligence on the part of
the petrol tanker driver?"

7. On the basis of the evidences led before it, the Claims Tribunal

answered the issue in the negative and as a consequence dismissed all the

claim cases by its judgment and order dated July 31, 1997.

8. Against the judgment and order passed by the Claims Tribunal, the

applicant of MACP no.168 of 1988, preferred an appeal before the High

Court (being First Appeal no.149 of 1999). (The other claimants whose

claims were similarly dismissed by the Claims Tribunal are also said to have
7

preferred their respective appeals before the High Court which are pending

awaiting the result of the present appeal before this Court).

9. Before the High Court it was contended on behalf of the claimants

that the question whether the death of the victims resulted from an accident

arising out of the use of the petrol tanker was concluded by the decision of

this Court in Shivaji Dayanu Patil and any finding recorded by the Claims

Tribunal contrary to the decision of this Court was completely illegal and

untenable. On the other hand, on behalf of the insurer and the owner of the

petrol tanker, it was argued that the decision of this Court in Shivaji Dayanu

Patil was rendered on a claim for no-fault compensation under section 92A

of the Act. It was, thus, a judgment against an interlocutory order, before any

evidences were recorded in the proceeding and, therefore, the decision in

Shivaji Dayanu Patil cannot be taken as binding and it was open to the

Claims Tribunal or the High Court to come to a different finding on the basis

of the evidences adduced in course of the main proceeding. It was further

argued, on behalf of the insurer and the owner of the petrol tanker that an

order under section 92A is, in nature, an interim order that is passed without

following the formal procedure of recording evidence. The decision of this

Court in Shivaji Dayanu Patil had not decided the issue finally and

conclusively and, hence, the claimants could not draw any benefit from it in
8

the main proceeding under section 110A of the Act based on the principle of

fault or negligence of the driver of the vehicle. The High Court did not

accept the arguments advanced on behalf of the owner and the insurer of the

petrol tanker, but agreed with the claimants that the decision of this Court in

Shivaji Dayanu Patil was conclusive on the issue that the death of the

victim, caused by the fire and explosion of the petrol tanker, had resulted

from an accident arising out of the use of the motor vehicle, namely, the

petrol tanker and it was not open to the Claims Tribunal to take a contrary

view. It, accordingly, allowed the appeal and by judgment and order dated

March 24, 2005, set aside the judgment of the Claims Tribunal and allowed

the claim petition with costs.

10. Though, having held against the insurer, the High Court, on a prayer

made before it, granted certificate to appeal to this Court by order dated

April 28, 2005, in the following terms:

"1. Heard advocates for the appellant and respondents. The
issue involved that is for the purpose of this leave to go to the
Supreme Court is, whether the order of the Supreme Court
under section 92A was for all purposes an interim order or it
concluded and decided the question as to whether the vehicle
i.e. the tanker was in use when exploded. Though, I have held
against the respondents, looking to the question involved,
certificate as prayed, is granted. No stay to the order of
payment. Certified copy expedited."
9

11. Mr. Ramesh Chandra Mishra appearing on behalf of the appellant

advanced the same arguments before us as were advanced before the High

Court in support of the judgment passed by the Claims Tribunal. Learned

counsel submitted that the decision of this Court in Shivaji Dayanu Patil was

rendered on an application under section 92A of the Act and, therefore, any

finding recorded in that decision would not be binding on the Claims

Tribunal in the main proceeding under section 110A of the Act that was to

be decided on the basis of the evidences adduced before the Tribunal.

12. On hearing Mr. Atul Nanda, the amicus curiae and Mr. Ashok Kumar

Singh, counsel appearing on behalf of the respondent, we are unable to

accept the submissions made by Mr. Ramesh Chandra Mishra and we are in

complete agreement with the view taken by the High Court.

13. In a given case, on the basis of the evidences later on adduced before

it in the main proceeding under section 110A of the Act, it may be possible

for the Claims Tribunal to arrive at a finding at variance with the finding

recorded by a superior court on the same issue on an application under

section 92A of the Act. But the variant finding by the tribunal must be based

on some material facts coming to light from the evidences led before it that

were not available before the superior court while dealing with the

proceeding under section 92A of the Act. In this case, however, as correctly
10

noted by the High Court, the position is entirely different. It is true that the

case Shivaji Dayanu Patil arose from the claim for no-fault compensation

under section 92A but all the material facts were already before the court

and all the contentions being raised now were considered at length by this

Court in that case. In Shivaji Dayanu Patil the Court took note of the

relevant facts in paragraphs 2 and 3 of the judgment. In paragraph 4 of the

judgment, the Court noted the three limbs of argument advanced by Mr.

G.L. Sanghi, learned counsel appearing for the owner of the petrol tanker in

support of the plea that the explosion and fire in the petrol tanker could not

be said to be an accident arising out of the use of a motor vehicle. Paragraph

4 of the judgment reads as under:

"4. Shri G.L. Sanghi, the learned Counsel appearing for the
petitioners, has urged that in the instant case, it cannot be said
that the explosion and fire in the petrol tanker which occurred at
about 7.15 A.M., i.e., nearly four and half hours after the
collision involving the petrol tanker and the other truck, was an
accident arising out of the use of a motor vehicle and therefore,
the claim petition filed by the respondent could not be
entertained under Section 92-A of the Act. Shri Sanghi has
made a three-fold submission in this regard. In the first place,
he has submitted that the petrol tanker was not a motor vehicle
as defined in Section 2(18) of the Act at the time when the
explosion and fire took place because at that time the petrol
tanker was lying turtle and was not capable of movement on the
road. The second submission of Shri Sanghi is that since before
the explosion and fire the petrol tanker was lying immobile it
could not be said that the petrol tanker, even if it be assumed
that it was a motor vehicle, was in use as a motor vehicle at the
time of the explosion and fire. Thirdly, it has been submitted by
11

Shri Sanghi that even if it is found that the petrol tanker was in
use as a motor vehicle at the time of the explosion and fire,
there was no causal relationship between the collision which
took place between the petrol tanker and the truck at about 3
A.M. and the explosion and fire in the petrol tanker which took
place about four and half hours later and it cannot, therefore, be
said that explosion and fire in the petrol tanker was an accident
arising out of the use of a motor vehicle."

14. After having considered each of the 3 limbs of Mr. Sanghi's

arguments and having rejected all of them, the Court, in paragraph 37 of the

judgment, held and observed as follows:

"37. Was the accident involving explosion and fire in the petrol
tanker connected with the use of tanker as a motor vehicle? In
our view, in the facts and circumstances of the present case, this
question must be answered in the affirmative. The High Court
has found that the tanker in question was carrying petrol which
is a highly combustible and volatile material and after the
collision with the other motor vehicle the tanker had fallen on
one of its sides on the sloping ground resulting in escape of
highly inflammable petrol and that there was grave risk of
explosion and fire from the petrol coming out of the tanker. In
the light of the aforesaid circumstances the learned Judges of
the High Court have rightly concluded that the collision
between the tanker and the other vehicle which had occurred
earlier and the escape of petrol from the tanker which
ultimately resulted in the explosion and fire were not
unconnected but related events and merely because there was
interval of about four to four and half hours between the said
collision and the explosion and fire in the tanker, it cannot be
necessarily inferred that there was no causal relation between
explosion and fire. In the circumstances, it must be held that the
explosion and fire resulting in the injuries which led to the
death of Deepak Uttam More was due to an accident arising out
of the use of the motor vehicle viz. the petrol tanker No. MKL
7461."
12

15. We have examined the evidences of the OWs adduced before the

Claims Tribunal, in particular the depositions of Shivaji Patil, the owner of

the petrol tanker, who examined himself as OW1 and Dhondirama Mali, the

driver of the ill-fated petrol tanker who was examined as OW2. We have

also gone through the judgment of the Tribunal. In the evidences of the

OWs, there was no new material fact that wasn't already before this Court in

Shivaji Dayanu Patil. And on the basis of the evidences led by the opposite

party, no new points were raised before the Claims Tribunal, that can be said

to have not been raised before this Court in Shivaji Dayanu Patil. The High

Court was, therefore, perfectly justified in observing in paragraph 26 of the

judgment coming under appeal as follows:

"... But whether the vehicle was in use or not was a question
before the Supreme Court and even after evidence that aspect
has not changed. Time at which the accident occurred, viz.
catching the fire by the petrol has remained the same. The
circumstances preceding this particular point have also
remained the same. The manner in which the petrol tanker came
near the spot and how it was hit by a vehicle or truck coming
from opposite direction also remained the same even after
evidence and therefore when facts which were before the
Supreme Court have not at all changed inspite of the full trial
and evidence, the judgment of the Supreme Court has to be
accepted and taken as a concluded judgment so far as the issue
as to whether the vehicle was "in use" or "arising out of the use
of the motor vehicle", fully and concluding. Secondly,
questions before the Supreme Court was about the
interpretation of the words "arising out of use of motor
vehicle". The situation namely occurring explosion to the petrol
13

tanker has not changed so far as this particular aspect is
concerned...."

16. In light of the discussions made above, it must be held that in the facts

and circumstances of the present case, the decision rendered in Shivaji

Dayanu Patil was completely binding on the Claims Tribunal and it was not

open to the Claims Tribunal to come to any finding inconsistent with the

aforesaid decision of this Court. The issue framed by the High Court is

answered accordingly. There is no merit in the appeal and it is, accordingly,

dismissed with costs.

....................................J.
(AFTAB ALAM)

....................................J.
(R.M. LODHA)

New Delhi
January 7, 2011.

Friday, December 24, 2010

ETHICS OF JUDICIARY - TRANSPARENCY - OPENNESS

   1

   REPORTABLE
   IN THE SUPREME COURT OF INDIA

   CIVIL APPELLATE JURISDICTION

   I. A. NO. 2

   IN

   SPECIAL LEAVE PETITION (C) No. 31797 of 2010

Raja Khan .. Petitioner

   -versus-

U.P. Sunni Central Waqf Board & Anr. .. Respondents

   ORDER

1. This is an application praying for expunging certain remarks made in

our judgment dated 26.11.2010 in the aforesaid case.

2. The Allahabad High Court has had a glorious history having produced

great lawyers who were leaders in the Independence struggle. It is the

largest High Court in India, and often gives leadership to all the High Courts

in the country. There have been many great Judges who have adorned the

bench of the High Court upholding the rich traditions of the Court and

maintaining the highest level of integrity e.g. Justice Mahmood, Justice
2

Pramoda Charan Banerjee, Chief Justice Shah Mohammed Suleiman, Chief

Justice Kamla Kant Verma, Justice Vashisht Bhargava, Chief Justice O.H.

Mootham, Chief Justice Nasirulla Beg, Justice S.N. Dwivedi, Justice Satish

Chandra, Justice Yashoda Nandan, Justice H.N. Seth, Justice N.D. Ojha,

Justice C.S.P. Singh, Justice A. N. Verma, etc. Hence what happens in the

Allahabad High Court is of great importance to the entire judiciary in the

country, as it will have great impact on all the High Courts in the country.

3. There are presently many excellent Judges of the Allahabad High

Court. These upright Judges are keeping the flag of the High Court flying

high by their integrity and hard work. It is therefore totally false to say that

all Judges of the Allahabad High Court are corrupt, or to construe our order

dated 26.11.2010 in that manner. It is nowhere mentioned in the said order

that all Judges of the High Court are corrupt. What is mentioned in the order

is that there are complaints against "certain Judges", not all Judges. It has

been mentioned in the order that many lawyers who are relatives of Judges

are scrupulously taking care that no one should lift a finger on that account.

It is clarified that many Judges in the High Court are doing the same.

4. One of us (M. Katju, J.) has close attachment to the Allahabad High

Court as his family has been associated with the High Court for over a
3

century. It is, therefore, inconceivable that he would like to damage the

High Court in any way. However, what has caused great pain and anguish

to us, are certain unfortunate happenings for some time in the Allahabad

High Court. It is not necessary to mention all of them here, but reference

can certainly be made to certain distressing orders passed during the

Summer Vacations by certain Judges of the High Court this year (2010), one

of which pertains to this very case.

5. In para 9 of the Application filed before us it is stated that sweeping

observations have been made against the High court. This is not correct. In

fact, in the order dated 26.11.2010 it has been stated -

   "We do not mean to say that all lawyers who have
   close relations as Judges of the High Court are misusing
   that relationship. Some are scrupulously taking care that
   no one should lift a finger on this account. However,
   others are shamelessly taking advantage of this
   relationship"

How is the above a sweeping observation? A distinction is clearly made in

the above between those who are taking care of their reputation and those

who are not.
4

6. It is alleged in paragraph 9 of the application that the observations we

have made in our order "seriously damage the reputation of the institution"

and sully its image. In this connection we wish to say that the reputation of

an institution is damaged and its image sullied when some of its members

pass shocking orders and behave in a totally unacceptable manner.

7. We can quite appreciate the anguish of some of the learned Judges of

the Allahabad High Court, but we cannot overlook the fact that there are

times when introspection is required, and not mere reaction. We earnestly

request the Hon'ble Judges of the High Court to consider our order in that

spirit.

8. We again reiterate that there are many excellent Judges in the

Allahabad High Court who are working hard and doing their duty honestly,

and we have not painted everyone with the same brush.

9. With these observations the Application stands disposed of.

   .............................................J.
   [MARKANDEY KATJU]

NEW DELHI; .............................................J.
DECEMBER 10, 2010 [GYAN SUDHA MISRA]

PROFESSIONAL ETHICS OF ADVOCATES

   Reportable

   IN THE SUPREME COURT OF INDIA

   CRIMINAL APPELLATE JURISDICTION

   CRIMINAL APPEAL NO. 2310 of 2010
   (arising out of S.L.P.(Crl.) No.6820 of 2008)

A.S. Mohammed Rafi .. Appellant(s)

   -versus-

State of Tamil Nadu .. Respondent(s)
Rep. by Home Dept. & Ors.

   WITH

   CIVIL APPEAL NOS. 10304-10308 of 2010
   (arising out of S.L.P.(C) Nos.26659-26663 of 2008)

   JUDGMENT

Markandey Katju, J.

CRIMINAL APPEAL NO. 2310 of 2010
(arising out of S.L.P.(Crl.) No.6820 of 2008)

1. Leave granted.
2

2. Heard learned counsel for the parties.

3. This appeal has been file against the impugned judgment and

order of the High Court of Madras dated 29.4.2008 passed in Writ

Petition No.716 of 2007.

4. The facts have been set out in the impugned judgment and

order and hence we are not repeating the same here.

5. The High Court had appointed a Commission of Enquiry

headed by Hon'ble Mr. Justice K.P. Sivasubramaniam, a retired

Judge of the High Court of Madras which is on record.

6. During the course of the proceedings today, we had requested

Mr. Altaf Ahmad, learned senior counsel, to assist us as Amicus

Curiae in this case and we are grateful to Mr. Altaf Ahmad and we

appreciate his assistance to us in this case.
3

7. As suggested by Mr. Altaf Ahmad, without going into the

merits of the controversy, we direct that a sum of Rs.1,50,000/-

(Rs. One Lakh and Fifty Thousand only) be given to the appellant

by the State of Tamil Nadu as compensation. We have been

informed that the appellant had already received a sum of

Rs.50,000/- (Rs. Fifty Thousand only) and hence the remaining

sum of Rs.1,00,000/- (Rs. One Lakh only) shall be paid by the

State of Tamil Nadu to the appellant within a period of two months

from today.

8. FIR No.2105 of 2006 dated 15.12.2006 on the file of B-4

Police Station (Law and Order), Race Course Police Station,

Coimbatore city against the appellant stands quashed.

9. To put quietus to the matter FIR No.2106 of 2006 on the file

of B-4 Police Station (Law and Order), Race Course Police

Station, Coimbatore city against the police also stands quashed

under Article 142 of the Constitution of India.
4

10. The impugned judgment and order of the High Court is

substituted by our order. The appeal is disposed off accordingly.

CIVIL APPEAL NOS. 10304-10308 of 2010
(arising out of S.L.P.(C) Nos.26659-26663 of 2008)

11. Leave granted.

12. Mr. P.H. Parekh, learned senior counsel, appears for the

Coimbatore Bar Association.

13. We agree with the submission of Mr. P.H. Parekh that the

observations made against the Coimbatore Bar Association in para 13

of the impugned judgment and order of the High Court should be

quashed. We order accordingly.

14. Before parting with this case, we would like to comment upon a

matter of great legal and constitutional importance which has caused us

deep distress in this case. It appears that the Bar Association of
5

Coimbatore passed a resolution that no member of the Coimbatore Bar

will defend the accused policemen in the criminal case against them in

this case.

15. Several Bar Association all over India, whether High Court Bar

Associations or District Court Bar Associations have passed resolutions

that they will not defend a particular person or persons in a particular

criminal case. Sometimes there are clashes between policemen and

lawyers, and the Bar Association passes a resolution that no one will

defend the policemen in the criminal case in court. Similarly,

sometimes the Bar Association passes a resolution that they will not

defend a person who is alleged to be a terrorist or a person accused of a

brutal or heinous crime or involved in a rape case.

16. In our opinion, such resolutions are wholly illegal, against all

traditions of the bar, and against professional ethics. Every person,

however, wicked, depraved, vile, degenerate, perverted, loathsome,

execrable, vicious or repulsive he may be regarded by society has a

right to be defended in a court of law and correspondingly it is the duty

of the lawyer to defend him.
6

17. We may give some historical examples in this connection.

18. When the great revolutionary writer Thomas Paine was jailed and

tried for treason in England in 1792 for writing his famous pamphlet

`The Rights of Man' in defence of the French Revolution the great

advocate Thomas Erskine (1750-1823) was briefed to defend him.

Erskine was at that time the Attorney General for the Prince of Wales

and he was warned that if he accepts the brief, he would be dismissed

from office. Undeterred, Erskine accepted the brief and was dismissed

from office.

19. However, his immortal words in this connection stand out as a

shining light even today :

   "From the moment that any advocate can be
   permitted to say that he will or will not stand between the
   Crown and the subject arraigned in court where he daily
   sits to practice, from that moment the liberties of England
   are at an end. If the advocate refuses to defend from
   what he may think of the charge or of the defence, he
   assumes the character of the Judge; nay he assumes it
   before the hour of the judgment; and in proportion to his
   rank and reputation puts the heavy influence of perhaps a
   mistaken opinion into the scale against the accused in
   whose favour the benevolent principles of English law
7

   make all assumptions, and which commands the very
   Judge to be his Counsel"

20. Indian lawyers have followed this great tradition. The

revolutionaries in Bengal during British rule were defended by our

lawyers, the Indian communists were defended in the Meerut

conspiracy case, Razakars of Hyderabad were defended by our lawyers,

Sheikh Abdulah and his co-accused were defended by them, and so

were some of the alleged assassins of Mahatma Gandhi and Indira

Gandhi. In recent times, Dr. Binayak Sen has been defended. No

Indian lawyer of repute has ever shirked responsibility on the ground

that it will make him unpopular or that it is personally dangerous for

him to do so. It was in this great tradition that the eminent Bombay

High Court lawyer Bhulabhai Desai defended the accused in the I.N.A.

trials in the Red Fort at Delhi (November 1945 - May 1946).

21. However, disturbing news is coming now from several parts of

the country where bar associations are refusing to defend certain

accused persons.
8

22. The Sixth Amendment to the US Constitution states "In all

criminal prosecutions the accused shall enjoy the right .......to have the

assistance of counsel for his defence".

23. In Powell vs. Alabama 287 US 45 1932 the facts were that nine

illiterate young black men, aged 13 to 21, were charged with the rape of

two white girls on a freight train passing through Tennessee and

Alabama. Their trial was held in Scottsboro, Alabama, where

community hostility to blacks was intense. The trial judge appointed

all members of the local bar to serve as defense counsel. When the trial

began, no attorney from the local bar appeared to represent the

defendants. The judge, on the morning of the trial, appointed a local

lawyer who undertook the task with reluctance. The defendants were

convicted. They challenged their convictions, arguing that they were

effectively denied aid of counsel because they did not have the

opportunity to consult with their lawyer and prepare a defense. The

U.S. Supreme Court agreed. Writing for the court, Mr. Justice George

Sutherland explained :

   "It is hardly necessary to say that the right to
   counsel being conceded, a defendant should be afforded a
9

   fair opportunity to secure counsel of his own choice. Not
   only was that not done here, but such designation of
   counsel as was attempted was either so indefinite or so
   close upon the trial as to amount to a denial of effective
   and substantial aid....."

24. In the same decision Justice Sutherland observed:

   "What, then, does a hearing include? Historically
   and in practice, in our own country at least, it has always
   included the right to the aid of counsel when desired and
   provided by the party asserting the right. The right to be
   heard would be, in many cases, of little avail if it did not
   comprehend the right to be heard by counsel. Even the
   intelligent and educated layman has small and sometimes
   no skill in the science of law. If charged with crime, he
   is incapable, generally, of determining for himself
   whether the indictment is good or bad. He is unfamiliar
   with the rules of evidence. Left without the aid of
   counsel he may be put on trial without a proper charge,
   and convicted upon incompetent evidence, or evidence
   irrelevant to the issue or otherwise inadmissible. He
   lacks both the skill and knowledge adequately to prepare
   his defense, even though he have a perfect one. He
   requires the guiding hand of counsel at every step in the
   proceedings against him. Without it, though he be not
   guilty, he faces the danger of conviction because he does
   not know how to establish his innocence. If that be true
   of men of intelligence, how much more true is it of the
   ignorant and illiterate, or those of feeble intellect. If in
   any case, civil or criminal, a state or federal court were
   arbitrarily to refuse to hear a party by counsel, employed
   by and appearing for him, it reasonably may not be
   doubted that such a refusal would be a denial of a
   hearing, and, therefore, of due process in the
   constitutional sense".
1

25. In this connection we may also refer to the legendry American

lawyer Clarence Darrow (1857-1930) who was strongly of the view

that every accused, no matter how wicked, loathsome, vile or repulsive

he may be regarded by society has the right to be defended in court.

Most lawyers in America refused to accept the briefs of such apparently

wicked and loathsome persons, e.g. brutal killers, terrorists, etc. but

Clarence Darrow would accept their briefs and defend them, because he

was firmly of the view that every persons has the right to be defended

in court, and correspondingly it was the duty of the lawyer to defend.

His defences in various trials of such vicious, repulsive and loathsome

persons became historical, and made him known in America as the

`Attorney for the Damned', (because he took up the cases of persons

who were regarded so vile, depraved and despicable by society that

they had already been condemned by public opinion) and he became a

legend in America (see his biography `Attorney for the Damned').

26. In Re Anastaplo, 366 US 82 (1961), Mr. Justice Hugo Black of

the US Supreme Court in his dissenting judgment praised Darrow and

said :
1

   "Men like Lord Erskine, James Otis, Clarence
   Darrow, and a multitude of others have dared to speak in
   defense of causes and clients without regard to personal
   danger to themselves. The legal profession will lose
   much of its nobility and its glory if it is not constantly
   replenished with lawyers like these. To force the Bar to
   become a group of thoroughly orthodox, time-serving,
   government-fearing individuals is to humiliate and
   degrade it."

27. At the Nuremberg trials, the Nazi war criminals responsible for

killing millions of people were yet defended by lawyers.

28. We may also refer to the fictional American lawyer Atticus Finch

in Harper Lee's famous novel `To Kill a Mocking Bird'. In this novel

Atticus Finch courageously defended a black man who was falsely

charged in the State of Alabama for raping a white woman, which was

a capital offence in that State. Despite the threats of violence to him

and his family by the racist white population in town, and despite social

ostracism by the predominant while community, Atticus Finch bravely

defended that black man (though he was ultimately convicted and

hanged because the jury was racist and biased), since he believed that

everyone has a right to be defended. This novel inspired many young

Americans to take up law as a profession in America.
1

29. The following words of Atticus Finch will ring throughout in

history :

   "Courage is not a man with a gun in his hand.
   It is knowing you are licked before you begin, but
   you begin anyway and you see it through no matter
   what. You rarely win, but sometimes you do."

30. In our own country, Article 22(1) of the Constitution states :

   "No person who is arrested shall be detained in
   custody without being informed, as soon as may be, of
   the grounds for which arrest nor shall he be denied the
   right to consult, and to be defended by, a legal
   practitioner of his choice".

31. Chapter II of the Rules framed by the Bar Council of India states

about `Standards of Professional Conduct and Etiquette', as follows :

   "An advocate is bound to accept any brief in the
   Courts or Tribunals or before any other authorities in or
   before which he proposes to practice at a fee consistent
   with his standing at the Bar and the nature of the case.
   Special circumstances may justify his refusal to accept a
   particular brief".

32. Professional ethics requires that a lawyer cannot refuse a brief,

provided a client is willing to pay his fee, and the lawyer is not

otherwise engaged. Hence, the action of any Bar Association in
1

passing such a resolution that none of its members will appear for a

particular accused, whether on the ground that he is a policeman or on

the ground that he is a suspected terrorist, rapist, mass murderer, etc. is

against all norms of the Constitution, the Statute and professional

ethics. It is against the great traditions of the Bar which has always

stood up for defending persons accused for a crime. Such a resolution

is, in fact, a disgrace to the legal community. We declare that all such

resolutions of Bar Associations in India are null and void and the right

minded lawyers should ignore and defy such resolutions if they want

democracy and rule of law to be upheld in this country. It is the duty of

a lawyer to defend no matter what the consequences, and a lawyer who

refuses to do so is not following the message of the Gita.

33. The Registry of this Court will circulate copies of this

judgment/order to all High Court Bar Associations and State Bar

Councils in India. The High Court Bar Associations are requested to

circulate the judgment/order to all the District Court Bar Associations

in their States/Union territories.
1

34. With these observations, these appeals are disposed of. No costs.

   ..................................J.
   (Markandey Katju)

   .................................J.
   (Gyan Sudha Misra)

New Delhi;
6th December, 2010