Benefit of difference in age should be given to the accused for offences u/ss 363, 366, 376 IPC/Appeal allowed.

HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR Criminal Appeal No. 5029 of 2005 Raj Kumar Shukla ........................................Appellant Versus State of U.P. ...............................................Respondent Connected with Criminal Revision No. 723 of 2006 Sarju Prasad Mishra..............................................Revisionist Versus State of U.P. and another....................................Respondents. Hon Vinod Prasad, J Appellant Raj Kumar Shukla, in Criminal Appeal No. 5029 of 2005, has challenged his conviction u/s 363, 366,376 IPC and implanted sentences of three years RI with fine of Rs. 2000/- on first count, five years RI with fine of Rs. 3000/- on the second count and ten years RI with fine of Rs. 5000/- on the last count, recorded by Additional Session's Judge, Court No. 2, Basti, in Session's Trial No. 56 of 04, State Vs. Raj Kumar Shukla and another, relating to Police Station Kotwali, district Basti. Trial Judge had further ordered that in default of payment of fine appellant shall under go one year further RI on all the counts, and that all his sentences shall run concurrently. By the same impugned judgement, trial Judge had acquitted Mahant alias Hanuman, another accused and consequently informant Sarju Prasad Mishra has challenged acquittal of the said accused Mahant alias Hanuman in connected Criminal Revision No. 723 of 2006. Since both the aforesaid cases arose out of the same impugned judgement and order, they are clubbed together and are being decided by this common order. Charge against the accused appellant, as was levelled by informant Sarju Prasad Mishra in his 156(3) Cr. P.C. application dated 16.10.2003, Ex. Ka 1, which was filed before Chief Judicial Magistrate, Basti, were that informant was the resident of village Lighara, P.S. Rudhauli, district Basti and was an assistant teacher in Ganesh Sanskrit Primary School, Dakshin Darwaja, Basti and was residing with his family in the house of late Indra Deo Mishra, situated at district hospital crossing, Basti. Appellant Raj Kumar Shukla was his neighbour in the same premises. On 12.10.2003, appellant with his other socio criminises, at 6.30 p.m. kidnapped informant's daughter Km. Suman aged about 15 years from the banks of a nearby bond, when she had gone there to attend nature's call. Vishnu Deo Mishra had seen accused and the abductee near the place of the incident. After return to his house informant located for his daughter but could not find her and then he started searching for her, when aforesaid Vishnu Deo Mishra informed him about the incident. Informant went to appellants house but could not find him and his relatives informed that appellant too was not traceable since evening. Same day informant gave an application at P.S. Kotwali but his FIR was not registered and consequently informant moved another application on 15.10.2003 through registered post to SSP Basti but even then his FIR was not taken down. Relatives of accused were constantly hurling threats to the family members of the informant, and therefore, left without no other option, informant approached Chief Judicial Magistrate, Basti u/s 156 (3) Cr. P.C., as mentioned above, by moving an application Ex.Ka1. Chief Judicial Magistrate, Basti on the said application directed the Station Officer, Kotwali to register and investigate the offence, but not to arrest the accused without his permission. Sub Inspector, Ram Achal Mishra, working as Head Moharrir at P.S. Kotwali, on the basis of Ex. Ka1, registered FIR of crime no. 43 of 03, u/s 363, 366 and 506 IPC by preparing chick FIR Ex. Ka 4 on 19.10.2003 at 8.05 p.m. and corresponding GD entry Ex. Ka 5. Investigation into crime was commenced by Sub Inspector Ram Vilas Yadav, who recorded statements of Head Moharrir Ram Achal Mishra P.W. 5 and Vishnu Deo Misra, sole eye witness, and thereafter conducted spot investigation and prepared side plan Ex.Ka2. On 22.10.2003 victim Km. Suman returned back to her parental house and receiving the said information, P.W.4 came to her at her parental house and recovered her and prepared recovery memo Ex. Ka 3. Thereafter victim was sent for medical examination through lady constable. P.W. 4 also recorded 161 Cr.P.C. statements of victim Km. Suman Mishra and witnesses of recovery memo Shyam Prakash and Hari Shanker Mishra. Further investigation into the crime was conducted by SI P.K. Maurya P.W. 6, who copied medical examination report of the victim and handed over victim to her parent's custody under the orders of the court. He copied 164 Cr.P.C. statement of the victim. On 8.11.2003, P.W. 6 interrogated appellant and penned down his statement. On 20.11.2003, he recorded 161 Cr.P.C. statement of witness Badri Vishal, Smt. Geeta Devi (mother of victim) and that of victim herself. Subsequently, I.O. recorded investigatory statement of Manish Upadhyay. After some days, under the orders of C.J.M., he recorded 161 Cr.P.C. statement of co-accused Mahant @ Hanuman. Thereafter I.O. interrogated Asha Devi, aunt(Bua) of appellant and concluding investigation, charge sheeted appellant, as well as co-accused Mahant @ Hanuman, vide charge sheet no. 311 of 2003, under sections 363, 366, 376, 506 I.P.C. vide Ext. Ka-6. Medical examination of victim Km. Suman Mishra, P.W. 2 was conducted on 23.10.2003 by Dr. Alka Shukla, P.W.7, M.O., Women Hospita, Basti at 12.35 p.m., who was brought to her by lady constable C.P. No. 626 Sarita Singh. Doctor had noted following facts in her primary medical examination report Ext. Ka-7:- "Examined police medico legal case Km. Suman Mishra D/o Sri Sarju Prasad Mishra R/o Lighara, P.S. Rudhauli, Basti on 23.10.2003 at 12.35 p.m. B/B- Sarita Singh CP 626 on matter of UMSUR= M/I- A Black mole-1.5 cm below lower lip. General 4/5 feet wt. 32 kg, teeth 13/14 gest normal. No external injury seen. On examination axillary and pubic hair well developed. Breast not fully developed. Avera dark brown in colour, Valva looks normal lebia majora and minora not fully developed. Hymen old, healed seen but vagina admit two finger easily. Vaginal smear taken and send to pathological examination. For age determination send to radiological examination for left ankle, rt. wrist elbow, knee joint and radiological opinion of age. EMO Women Hospital, Basti. 23.10.2003." Dr. R.A.L. Gupta, Senior Radiologist P.W. 8 had got the victim X-rayed under his supervision on 24.10.2003 vide X-ray Registration No. 411041114112 for her elbow joint, right knee joint, right wrist etc. and had given his report Ext. Ka-10, contents of which are noted herein below:- "Suman Mishra, D/o Sarju Prasad, R/o Lighara, P.S. Rudhauli, District Basti. X-rayed No. 411041114112 Dt. 24.10.2003 A.M.- 106/96 Ref. By Women Hospital, Basti. B/B- PC Sarita Singh CP No. 626 P.S. Kotwali. M.I.- Bm on chin 1-5 cms lower lip. Part X-red- Rt. Wrist, Rt. Elbow, Rt. Knee. Rt. elbow joint- Epiphysis and the elbow joint are fused. Rt. knee joint- Epiphysnal fusion and the knee joint is started but not completed. Rt. wrist joint- Epiphysis at the lower end of radius and ulna is not fused. Radiologicaly the age of the girl appears to be 16 years. Radiologist- District Hospital, Basti." P.W. 8 further proved the X-ray plate as material Ext. 1. In the estimation of radiologist also, victim was about 16 years of age. Pathologist report regarding victim vide Ext. Ka-9 dated 23.10.2003 prepared by EMO, Women Hospital, Basti indicated that no spermatozoa was seen in the victim's vaginal smear. On 27.10.2003, PW7, after receipt of X-ray report and plate, prepared supplementary report Ext. Ka-8 and opined that the radiological age of the victim appeared to be about 16 years. On the basis of charge sheet Ext. Ka-6, CJM, Basti registered case no. 507 of 2004, State Vs. Raj Kumar Shukla on 3.2.2004 taking cognizance of the offence and finding the offence triable by Session's court, vide committal order dated 12.2.2004, committed case of both the accused Raj Kumar Shukla and Mahant @ Hanuman to Session's court, where it was registered as S.T. No. 56 of 2004, State Vs. Raj Kumar Shukla and one another on 24.2.2004. Additional Session's Judge, F.T.C. Court No. 1, Basti, in the aforesaid S.T. charged both the accused for offences under sections 363, 366 I.P.C. Appellant was additionally charged under section 376 I.P.C. on 10.3.2004. Both the accused denied the charges and claimed to be tried and hence to establish their guilt, prosecution tendered in all eight witnesses during their trial, out of whom informant Sarju Prasad Mishra P.W. 1, victim Km. Suman Mishra P.W. 2 and Manish Upadhyay P.W. 3 were the fact witnesses. Prosecution formal witnesses included first I.O. Ram Vilash Yadav P.W. 4, head moharir Ram Achal Mishra P.W. 5, second I.O. P.K. Maurya P.W. 6, Dr. Alka Shukla P.W. 7 and radiologist Dr. R.A.L. Gupta P.W. 8. In their statements under section 313 Cr.P.C., both the accused denied prosecution charges and pleaded defence of their false implication. They in their defence however, did not examine any witness. Additional Session's Judge, Court No. 2, Basti after examining facts and circumstances of the case, critically appreciating evidences, both oral and documentary, tendered before it, held that prosecution had failed to establish it's charge against Mahant @ Hanuman and, therefore, conferred benefit of doubt and acquitted him. It however concluded that charged offences were established to the hilt beyond any doubt against appellant Raj Kumar Shukla and, therefore, convicted him for all those offences under sections 363, 366, 376 I.P.C. and implanted sentences, which has already been mentioned in the opening paragraph of this judgment by passing impugned judgment of conviction and sentence, which is now been questioned by the convicted accused appellant in the instant appeal. Since, informant was aggrieved by acquittal of Mahant @ Hanuman and, therefore, he filed connected criminal revision against acquittal. On the above background facts, I have heard Sri Haridwar Singh, learned counsel representing both the accused Raj Kumar Shukla and Mahant @ Hanuman and Sri J.P. Mishra, learned counsel for the informant as well as Sri A.P. Singh, learned AGA for the State. Criticizing the impugned judgment of conviction and sentence, learned counsel for the appellants submitted that the entire background facts along with evidences of victim indicate that she was a consenting party to the entire episode and she escaped from her parental house on her own volition and stayed with the appellant for about nine days and when the FIR was lodged, she returned back to her house and leveled false charge of kidnapping, abduction and rape against the appellant. It was further submitted that victim P.W. 2 is not a reliable witness as she had embellished her testimony from what she had stated during investigation before the I.O. Next submission is that informant P.W. 1 is not an eye witness of the incident, which was divulged to him by Vishnu Deo Mishra but very surreally, prosecution could not muster courage to examine said Vishnu Deo Mishra as a witness and, therefore, prosecution story that the incident was informed to the informant P.W.1 by Vishnu Deo Mishra remains an unsubstantiated allegation. It is further submitted that the entire deposition of P.W. 1 in respect of the incident is incredible as it is hearse and, therefore, cannot be relied upon. It is next submitted that appellant was a tutor of the victim since last two years during course of which, because of infatuation, physical relationships between them developed because of which P.W. 2 had eloped from her parental house along with the appellant and, thereafter cooked up and manufactured a false story. It was further submitted that according to the own showing of P.W. 1, his FIR was not registered on 12.10.2003 and yet informant waited for another couple of days and filed his application Ext. Ka-1 only on 16.10.2003 after a gap of three days. It is therefore, submitted that the only evidence against the appellant remains is that of victim P.W.2. Criticizing P.W.2's depositions it was submitted that she had narrated altogether a different story to the Investigation Officer during investigation, according to which, she had developed physical relationship with the appellant when he was tutoring her. She had further informed the I.O. that from tempo she was brought outside the city and thereafter in a car she was taken to Bansi at the house of aunt (Bua) of the appellant. Aforesaid statement, given by the victim during investigation, was eschewed by her and she embellished her version by testifying in court that she had fainted when she was carried in the tempo. Learned counsel submitted that this summersault, during trial, was taken by the victim only for the reason that her entire deposition was false and cooked up. Medical report indicated that she was 16 years of age, which is corroborated by the depositions of PW2 herself. Learned counsel, to castigate and criticize P.W.2, further referred to her investigatory statement wherein, she had deposed that she was 16 years of age. It was next submitted that the secondary characters noted by P.W.7 along with testimony of P.W.8 unerringly established that P.W.2 could not have been less than 16 years of age. It was submitted that she is untruthful, unreliable and untrustworthy witness on whose statement, no credibility can be attached. Learned counsel, therefore castigated the depositions of P.W.2 as being totally incredible unnatural and unconvincing. Turning towards reliability of P.W.3, he was criticized for the reason that his depositions does not farther prosecution case at all. P.W.3 is the friend of younger brother of informant and therefore, he is interested and related witness. His name does not figure in FIR exhibit Ka-1 and therefore, he is a got up witness. Interrogatory statement of this witness was recorded only after recovery of the victim after enormous delay on 7.12.2003. It was next argued that the deposition of P.W.3 does not anoint any charge on the appellant as his seeing of two accused in conversation with each other is not an incriminating circumstances against the accused as both the accused were uncle and nephew and closely related. There standing in conversation with each other, therefore, is not indicative of the fact that they were conspiring or had a common motive & intention. Learned counsel therefore, submitted that evidence of P.W.3 is of no value in holding the appellant guilty. It was next submitted that the evidence of the two doctors does not at all establish that victim was subjected to rape against her will and consent. She was found to be used to sexual intercourse. None of her muslin was seized to lend credence to the prosecution version. No internal or external injury was found on her body and therefore, the charge of forceful intercourse with her is absolutely false. It was further contended that acquittal of accused Mahant @ Hanuman is well merited and the opinion by the trial Judge cannot be said to be patently absurd or not borne out form the record and therefore, in revision, the same cannot be upturned. Learned counsel further submitted that in revision reappraisal of evidence is impermissible and informant had failed to point out any illegality in recording acquittal and therefore, revision against acquittal preferred by the informant being without substance deserve to be rejected. It was on these submissions that it was contended by accused counsel that appeal of appellant Raj Kumar Shukla be allowed and he be acquitted of the charges and the revision preferred by the informant be dismissed. Learned counsel for the informant as well as learned AGA argued to the contrary and submitted that the accused by taking undue advantage of his position, as a tutor had enticed away victim P.W.2 with whom he had committed rape and therefore, the impugned judgment of conviction does not suffer from any error of law or that of fact. It was argued by informant's counsel that acquitted accused Mahant @ Hanuman was present at the scene of the incident at or about when victim was kidnapped and it was he who had brought the victim from the house of aunt(Bua) of the appellant and therefore, at every stage of the incident he is present and therefore, his complicity in the crime was also established and trial court erred in not holding him guilty. It was therefore, submitted that revision of the informant be allowed and the case of Mahant @ Hanuman be remanded back to the trial court for retrial. I have considered the arguments raised by both the sides and have perused and vetted evidences on record as well as other material exhibits and the case diary. In the present appeal, it is allegated that the appellant had enticed away the victim. Neither in the FIR nor in his deposition father informant had disclosed any reason for kidnapping. From the cross-examination of the victim P.W.2, it is clear that she had left her parental house to attend call of nature. Argument of appellant's counsel is also that P.W.2 had left her parental house on her own volition. It was never the prosecution case that accused had knowledge about victim's going to attend nature's call at that time and place. On this aspect, when evidence of PW2 is scanned it transpires that according to her claim nobody had any idea that she will go to attend call of nature at that particular time and place. According to her testimony her nose was gaged with anesthetic smell because of which she had fainted. On such fact it is not convincing that accused will wait for her arrival with a tempo at that spot unless they were knowning about victim's arrival at that time. Further if she had fainted immediately how could she knew that she was brought to Bansi at appellant's Bua house in a tempo. During investigation she had divulged altogether a different story that she was brought out of the city on tempo and from there she was taken to Bansi in a car. Hence what she had stated in court was not stated by her in her first disclosure statement to the I.O. Victim had also not informed the I.O. that she had fainted and that she had regained consciousness at Bansi and thus she had embellished and improved upon her version which does not inspire any confidence and is contrary to her initial statement u/s 161Cr.P.C. Her deposition that when she was put in the tempo she was unconscious and therefore she could not state as to whether she was lifted in tempo or that she was forced inside it is contradicted by her statement in court. Hence charge of kidnapping seems to have not been established. This view is also supported by the fact that during investigation she had stated that sexual contact between her and appellant occurred with her consent albeit on a false allurement of marriage. She had stated so in her 164 Cr.P.C. statement as well. Trial court also noted contradiction in her such statements and had even recorded opinion that accompanying of victim with the appellant was not unnatural. If such a conclusion was drawn by the trial judge there was no occasion for it to convict the appellant for the charge of abduction and kidnapping by taking a view contrary to the settled canons of law that it was for the prosecution to establish the charge to the hilt and accused is entitle to the benefit of each and every reasonable doubt. It was also brought on record through deposition of PW3, Manish, that on the date of the incident he (Manish,PW3) had seen both appellant and victim having conversation with each other near the place of abduction, which statement belies victim's testimonies of abduction after making her unconscious. Victim had never put up such a case that she had any conversation with the appellant. In such a view it is not convincing and reliable to believe that victim was kidnapped by the appellant and conversely, what seems most likely is that she had gone with the appellant on her own volition because of marriage assurance. This view is further lend credence by the fact that she had informed in her 161 and 164 Cr.P.C. statements that sexual act was performed with her with will and consent on false pretext of marriage. Regarding charge of rape victim's version is full of un-naturality. She contradicted herself and resiled from her earlier statement according to which she had entered into sexual intercourse with the appellant on false pretext of getting married when appellant had called her in his room. There was no force applied nor her hands were tied at the back, but in the court she deposed that she was raped forcefully by tying her hands. This was never her case during investigation. Why she created such a story for the first time in court is not understandable and does not inspire any confidence for it's truthfulness. Considering from another angle if she was not enticed away for forceful marriage charge of abduction u/s 366 IPC fails. Such a summersault by her bracket her in the category of not wholly a truthful witness and hence no implicit reliance can be placed upon her. Charge of rape is also supported by the evidence of the doctor according to whom no opinion about rape could be given in her respect. No external or internal injury was found on her body. Her cloths were neither seized nor produced in court. She had stayed with the appellant for nine days. From her such statements coupled with her medical report it does not seems to be a case of intercourse without her consent and will. What is most significant to note is that in her 164 Cr.P.C. statement victim had stated that she entered into sexual act because of allurement given to her for marriage. Why then she had not stated so before the trial court? Why she narrated altogether a different story during trial? Trial judge also noted such contradiction in 164 Cr.P.C. statement but instead of testing veracity of victim's deposition on the touch stone of truthfulness and probability, because of such contradictions in her story, it tried to justify her conduct by opining that such a conduct on her part was not unnatural looking to her age and her infatuated attraction towards appellant who was her neighbor and tutor. Trial court further accepted that there was sufficient force in accused argument that cohabitation took place with the consent of victim but convicted the appellant because of the reason that victim was a minor. This in my view is a fallacious approach as the benefit of difference in victim's age should have been conferred on the accused and not on the victim especially when prosecution had failed to get it elicited from the doctor that she was less than sixteen years of age. On this aspect even PW1, informant, who is father of the victim and was a teacher did not disclose her exact date of birth. He would have been the best person to establish her age by filing documentary proofs regarding it but he intentionally eschewed it. On this aspect finding by the trial court that she was minor is not born out from the record as doctors evidence does not establish it conclusively. Accused is entitled to benefit of flexibility in age and opinion favourable to the accused has to be adopted and accepted. While determining age trial court considered those factual aspects which were never spelt out by her father PW1. Although he did note that no documentary evidences was filed by PW1 regarding age of victim but made mere ipse dixit of PW1&3 alongwith unproved document as the basis of opining that victim was a minor. She could be about 16 years of age. If because of infatuation victim who could be 16 years of age had left her parental house no charge of kidnapping can be anointed on the abductor. Her consent will come to the rescue of the appellant for commission of that offence. In such a view, so far as conviction of the appellant for the charge of kidnapping and abduction is concerned, it cannot be sustained and has to be set aside. There is yet another reason for not upholding conviction u/s 366 IPC. Prosecution case is clear and cogent right form the very beginning that the victim was taken away by appellant Raj Kumar Shukla. In application under Section 156(3) Cr.P.C., no reason for kidnapping was mentioned by informant P.W.1. In his testimony before the court also, P.W.1 failed to divulge any reason for kidnapping and deposed that he was informed by Vishnu Dutt Mishra that he had seen his daughter boarding a tempo near grave yard alongwith appellant Raj Kumar and three other people who were ready to go to some place. The only charge levelled by P.W.1 is that his daughter was enticed away. When star prosecution witness P.W.2, victim herself, entered into the witness box she deposed in examination-in-chief that when she was going to attend nature's call and when she had reached near the grave yard then appellant along with three other associates was standing there. Appellant forced his handkerchief on her nose with some anesthetic smell and thereafter P.W.2 fainted. Appellant thereafter took her to Bansi in a tempo and there at 11p.m. that she regained her consciousness. Appellant's Bua gave her the dinner but she refused and requested them to send her back to her parents. It was further stated by the victim that thereafter, appellant confined her in a room where he had committed forceful rape upon her by tying her hands. Thus there is no charge against the appellants that victim was enticed way for forceful marital tie or for compelling her to marry any person against her will. Although such a statement was made by the victim in her 164 Cr.P.C. statement but for the reasons best known to her she resiled from such a case and developed a case of forceful rape upon her. In her 164 statement she had stated that she was allured for the marriage and on such a pretext that sexual contract developed between her and appellant with consent and will. Since victim eschewed allegation of abduction because of forceful marriage, no charge of abduction can be established against the appellant as first sine qua non ingredient for making offence u/s 366 IPC is absent in the present appeal. Now turning towards the second ingredient for making out offence u/s 366 IPC, that the victim was kidnapped for compelling her to forceful intercourse, it is noted that on the facts of the present appeal victim seems to be a consenting party, which fact was accepted by the trial court as well, and therefore, there was no intercourse without her will and consent. In this respect, it was argued that victim had taken a summersalt than what had been stated by her during investigation. For the purposes of judging the veracity of victim's deposition and to analyze as to whether she is a truthful or reliable witness or not, only for this limited purpose, I have perused her statement under Section 161 Cr.P.C. and it is revealed that criticism by appellant's counsel has got some substance. During investigation, altogether a different story was stated by the victim, according to which, she was having physical sexual relationship with the appellant since prior to her elopement more than two or three years prior to the present incident. This story has been completely eschewed by the victim when she entered into the witness box. Trial judge also considered such contradiction in the victim's story but ignored it while testing truthfulness of victim's depositions. Otherwise also medical report does not support her charge of forceful carnal intercourse. No injury had been detected on her private part nor on her external body. Victim had stated that her cloths were cleaned by her mother to wash of signs of rape. Why the mother did it, is not understandable but this certainly plummeted the charge against the appellant of raping the victim without her consent and will. Doctor also could not give any concrete opinion that victim was subjected to rape. Other unconvincing factor is that no where it has been stated by the victim that she had yelled out for help when she was being abducted. Her story that she was administered some poisonous smell because of which she fainted does not appeal to reason. In her medical examination there is no evidence to that effect and from her deposition also the said allegation does not seems to be a correct narration of fact. If victim had fainted how could she come to know that she was transported in a tempo to the house of appellant's aunt (Bua) in village Bansi. According to her she regain consciousness at 11.00 in the night. During investigation neither the number of the tempo nor whereabouts of his drivers could be traced out nor any attempt was made by the I.O. in that direction. During investigation, it was alleged that the accused and the victim had gone outside the city premises in the tempo and thereafter they had boarded in a car to go to Bansi. Why this story was given up by the victim also does not appeal to reason. Her mere ipse dixit that she was subjected to rape does not commend and is an unconvincing deposition. It is also unconvincing that the tempo was standing at the pond since prior to arrival of P.W. 2 unless there was a plan for elopement. How could accused know that the victim will arrive at the pond at the relevant hour on the date of the incident. It is not in her statement that she had fainted prior to be transported in the tempo. She also did not inform the I.O. that she regain consciousness in the house at Bansi. She was contradicted by her statement in respect of going to Bansi in the car and coming out of city precinct in the tempo. Regarding intercourse also, she had informed the I.O. that the appellant had called her in her room and then he had sexual intercourse. In such a view, prosecution allegation regarding abduction of the victim and committing rape upon her against her wishes does not inspire any confidence and seems to be an afterthought story. P.W. 4 when entered into witness box, contradicted victim P.W. 2 specifically and unambiguously when he deposed that P.W. 2 had not informed him that she had fainted prior to be put in tempo or that she was forced to smell something anesthetic because of which she had lost her conscious. In such a view, I am of the opinion that no intercourse took place against the will and consent of the victim. Coming to age of the victim trial Judge himself recorded a finding that in respect of victim's age, no documentary evidence was produced in court although High School mark sheet of 2003 was available on the record, which was filed at the time of hearing of bail application. Trial court committed an error in not relying upon evidences which were favourable to the accused in respect of age of the victim. It's opinion that victim could not have been 16 years of age because she was a student of class 10th also does not appeal to reason as according to the statement of victim herself, she had failed in class 10th. The opinion by the trial Judge that victim was below 16 years of age on the date of the incident is also not borne out from the record. In her statement before the I.O., she had stated her age to be 16 years and that is commensurate with the medical findings specially looking to the secondary characters mentioned by P.W. 7. For nine days, victim had remained with the appellant and it is very unconvincing that aunt of the appellant will also be a privy to the crime of rape in side her house. The impugned judgment also suffers from incorrect approach as the trial Judge although observed, at page 25 of the impugned judgment, that the argument by appellant's counsel that carnal intercourse took place with the consent of the victim is perceptibly clear from her testimony, has much substance, yet has rejected defence argument because in it's opinion victim was less than 16 years of age and, therefore, her consent was immaterial. In recording such a finding trial Judge completely misinterpreted the opinion of the two doctors, which were clear and unambiguous that the victim was about 16 years of age and hence benefit of age had to be conferred on the accused. Prosecution has not dare to challenge the said testimonies of medical expertsr. It had not mustered the courage to prove by documentary evidence, the age of the victim recorded in her school. It is cardinal rule of criminal jurisprudence that if two views are possible then the view favourable to the accused has to be adopted as it is for the prosecution to prove the charge beyond any reasonable doubt against the accused. Impugned judgment is also unsustainable as, at page 26 of the impugned judgment, trial Judge itself has opined that there is sufficient force in the accused argument that the prosecution has not tendered any reliable and credible evidence in the light of which, it can be said that victim was abducted. Trial Judge also opined that P.W.1 is not an eye witness of the incident and on the deposition of P.W. 3, no reliance can be placed on his statement that he was an eye witness of the incident. The trial Judge only relied upon the statement of victim P.W. 2. In my opinion, since she was an interested, partisan, and unreliable witness, who was a privy to the whole episode, therefore, to save her skin, she had narrated a fabricated version. Without lending assurance from any independent source her testimony was insufficient to hold appellant guilty. As pointed out above, she had changed her version from time to time and, therefore, cannot be relied upon. This she seems to have done to rectify her mistake committed by a damsel under infatuation, which is not far to perceive. Her hymen was found to be old torned and healed with insertion of two fingers easily, which can be taken to be a prima facie evidence, on preponderance of probability, that the victim was used to carnal intercourse. In such a view, I am of the opinion that the conviction and sentence of the appellant for all the charges remains unsubstantiated and disproved. In above view none of the offences leveled against the appellant are established beyond any shadow of doubt and he is entitle to acquittal. Now turning towards the revision filed by the informant, I am of the opinion that in revision, no reappraisal of the evidence is possible. Counsel for the informant had failed to point out any legal infirmity in the impugned judgment of acquittal because of which, it can be said that the same suffers from illegality or material irregularity. It is trite law that a judgment of acquittal should not be interfered with unless and until, it is found that the same suffers from patent error of law and the opinion recorded by the acquitting court is so patently absurd that it cannot be sustained at all. Presence of Mahant @ Hanuman near a pond is not an incriminating circumstance at all as appellant was his real nephew. If uncle and nephew entered into a conversation with each other, it is not an incriminating circumstance at all. The aunt of appellant was the sister of accused Mahant @ Hanuman. Visiting the house of sister and taking the victim from her house to victim's maternal uncle residence is also not an incriminating circumstance. It does not establish at all that Mahant @ Hanuman was also a socio criminises and had sensus id idum with the appellant to commit kidnapping and abduction of the victim.P.W. 3 himself has been disbelieved by the trial Judge, in whose opinion, he was not a reliable witness. The said opinion of the trial Judge could not be castigated by the revisionist counsel. The only evidence against the acquitted accused Mahant @ Hanuman was that of P.W. 3. as P.W.2 had not anointed any specific role to the said accused. He is 45 years of age and without any preceding and succeeding background, he could not have been convicted for the charges framed against him. Therefore, trial Judge had rightly given him benefit of doubt and has acquitted him. Impugned judgment, therefore, cannot be castigated so far as Mahant @ Hanuman is concerned regarding his acquittal. The opinion by the trial Judge for the said accused is hereby approved and affirmed and the revision preferred by the informant against acquittal of Mahant @ Hanumant being meritless is hereby dismissed as it does not require any interference. In the net result appeal of appellant Raj Kumar Shukla, being Criminal Appeal No. 5029 of 2005 is hereby allowed and he is acquitted of all the charges. He is on bail. He need not surrender. His surety and bail bonds are discharged. Criminal Revision No. 723 of 2006, Sarju Prasad Mishra versus State and another, is hereby dismissed. Let a copy of the judgment be certified to the trial court for its intimation. Dt.16.12.2011 SKS/Rk/AKG/-

`Aarushi’ murder case =The powers of Magistrate to take cognizance even the report of investigating officer found no offence as per his opinion=”The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against

1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.68 OF 2012 ARISING OUT OF Special Leave to Appeal (Crl) No(s).2982/2011 Dr. MRS. NUPUR TALWAR ... APPELLANT(S) VERSUS C.B.I., DELHI & ANR. ... RESPONDENT(S) J U D G M E N T GANGULY, J. 1. We have heard learned counsel for the parties. 2. Leave granted. 2 3. The subject matter of challenge before this Court is an order dated 18th March, 2011 of the Allahabad High Court whereby the High Court on a petition under Section 397/401 of the Criminal Procedure Code (hereinafter `Code') challenging the order dated 9th February, 2011 passed by Special Judicial Magistrate (CBI), Ghaziabad in Special Case No.01 of 2011 (Rajesh Talwar Vs. Unknown under Section 302, I.P.C. P.S. S.C.B. C.B.I., Delhi) refused to interfere with Magistrate's order of taking cognizance. 4. By the said order dated 9th February, 2011, the Magistrate had taken cognizance of the offences under Sections 302/34 and 201/34 I.P.C. against the appellant and one Dr. Rajesh Talwar. The concluding portion of the order of the Magistrate is:- "While rejecting the conclusion given in the Final Report by the Investigating Officer, cognizance on the basis of Police report under section 190(1)(b) of Cr.P.C. 3 is taken under section 302/34 and 201/34 IPC against accused Dr. Rajesh Talwar and Dr. Nupur Talwar for committing murders of Arushi and Hem Raj and for tampering with the proofs. The accused be summoned for appearance on 28.02.2011. Copies be prepared." 5. The entire case arises out of an unfortunate murder of a young girl namely, `Aarushi' in her own residence and also the murder of one Hemraj, a domestic help. It appears that the said unfortunate murder of the young girl raised some kind of a sensation in public mind and an uproar. Be that as it may, sitting in the Courts of law, we have to steer clear of the public debate and follow the course of law. 6. Initially, the investigation was conducted by the Uttar Pradesh Police in which the implication of Dr. Rajesh Talwar and Dr. Nupur Talwar, parents of the deceased victim girl transpired. Thereafter, the investigation of the case was handed over to the C.B.I. on 29th May, 4 2008 on the basis of a notification by the State. Prior to that, on 23rd May, 2008, Dr. Rajesh Talwar was arrested. The CBI initially filed a closure report of the investigation. On the basis of that report, an application was filed by the C.B.I. under Section 169 of the Code before the Special Judicial Magistrate, C.B.I., Ghaziabad. The contents of the said petition read as under: "i. That accused Rajesh Talwar was arrested in the aforesaid case on 23.5.2008. Subsequently, following expiry of his police remand, this Hon'ble Court remanded him to judicial custody upto 11.7.2008 vide order dated 2.7.2008. ii. That the investigation of this case is still pending and all the facts and circumstances of the case are being investigated. iii. That during investigation, the role of accused Rajesh Talwar was thoroughly investigated regarding the aforesaid crime. iv. That during investigation, the poly right to psychological analysis test of accused Rajesh Talwar was conducted and no deception has been found in the test reports. 5 v. That during investigation, the cloths, shoes and finger palm/foot prints of accused Rajesh Talwar was forwarded/submitted to CFSL, New Delhi for examination and expert opinion. The Scientific examination results could not connect accused Rajesh Talwar with the crime. vi. That in view of the above circumstances, the further judicial custody remand of accused Rajesh Talwar is not required in the interest of justice. Prayer It is, therefore, prayed that Judicial custody remand of accused Rajesh Talwar may not be extended." 7. On the basis of the aforementioned prayer of C.B.I. under Section 169 of the Code, an order came to be passed on 11th July, 2008 by the learned Magistrate and Dr. Rajesh Talwar was released on his furnishing two sureties of Rs.5 lakh each with a personal bond of the same amount. 8. Thereafter, the C.B.I. filed another closure 6 report on 29th December, 2010. Then, on a notice being issued by the Court, a protest petition came to be filed by Dr. Rajesh Talwar. Only thereafter, the impugned order of the Magistrate dated 9th February, 2011 came to be passed. The learned Magistrate in his detailed order after considering various aspects of the matter took cognizance of the offence and passed the order, quoted above. 9. It is apparent from the detailed order that the Magistrate rejected the conclusion given in the official report of the Investigating Officer and took cognizance under Section 190(1)(b) of the Code. 10. Attention of this Court has been drawn to various parts of the CBI closure report and certain other documents by Mr. Ranjit Kumar, learned senior counsel appearing for the appellant. 7 11. Sitting in a jurisdiction under Article 136 of the Constitution, we do not feel inclined to go into all the factual aspects of the case. Obviously at this stage we cannot weigh evidence. Looking into the order of Magistrate, we find that he applied his mind in coming to the conclusion relating to taking of cognizance. The Magistrate has taken note of the rejection report and gave his prima facie observation on the controversy upon a consideration of the materials that surfaced in the case. We reproduce the conclusions reached by the Special Judicial Magistrate. "From the analysis of evidence of all above mentioned witnesses prima facie it appears that after investigation, on the basis of evidence available in the case diary when this incident occurred at that time four members were present in the house--Dr. Rajesh Talwar, Dr. Nupur Talwar, Arushi and servant Hem Raj; Arushi and Hem Raj, the two out of four were found dead. In the case diary there is no such evidence from which it may appear that some person had made forcible entry and 8 there is no evidence regarding involvement of the servants. In the night of the incident, Internet was switched on and off in the house in regard to which this evidence is available in the case diary that it was switched on or off by some person. Private parts of deceased Arushi were cleaned and deceased Hem Raj was dragged in injured condition from the flat of Dr. Rajesh Talwar up to the terrace and the terrace was locked. Prior to 15.5.2008, terrace was not locked. According to documents available on the case diary, blood stains were wiped off on the staircase, both the deceased were slit with the help of a surgical instrument by surgically trained persons and shape of injury on the head and forehead was V shaped and according to the evidence available in the case diary that appeared to have been caused with a golf stick. A person coming from outside, during the presence of Talwar couple in the house could have neither used the Internet nor could have taken the dead body of deceased Hem Raj to the terrace and then locked when the Talwar couple was present in the house. On the basis of evidence available in the case diary footprints stained with blood were found in the room of Arushi but outside that room bloodstained footprints were not found. If the assailant would go out after committing murder then certainly his footprints would not be confined up to the room of Arushi and for an outsider it is not possible that when Talwar couple were present in the house he would use liquor or would try to take dead body on the terrace. Accused after committing the offence would like to run away immediately so that no one could catch him. 9 On the basis of evidence of all the above witnesses and circumstantial evidence available in case diary during investigation it was expected from the Investigating Officer to submit charge- sheet against Dr. Rajesh Talwar and Dr. Nupur Talwar. In such type of cases, when offence is committed inside a house, there direct evidence cannot be expected. Here it is pertinent to mention that CBI is the highest investigating agency of the country in which the public of the country has full confidence. Whenever in a case if any one of the investigating agencies of the country remained unsuccessful then that case is referred to CBI for investigation. In such circumstances, it is expected of CBI that applying the highest standards, after investigation it should submit such a report before the Court which is just and reasonable on the basis of evidence collected in investigation, but it was not done so by the CBI which is highly disappointing. If I draw a conclusion from the circumstances of case diary, then I find that in view of the facts, the conclusion of the investigating officer that on account of lack of evidence, case may be closed; does not appear to be just and proper. When offence was committed inside a house, on the basis of evidence received from case diary, a link is made from these circumstances, and these links are indicating prima facie the accused Dr. Rajesh Talwar and Dr. Nupur Talwar to be guilty. The evidence of witness Shoharat that Dr. Rajesh Talwar asked him to paint the wooden portion of a wall between the rooms of Arushi and Dr. Rajesh Talwar, indicates towards the conclusion that he wants to tamper with the evidence. From 10 the evidence ... so many in the case diary, prima facie evidence is found in this regard. Therefore, in the light of above evidences conclusion of Investigating Officer given in the final report deserves to be rejected and there is sufficient basis for taking prima facie cognizance against Dr. Rajesh Talwar and Dr. Nupur Talwar for committing murder of deceased Arushi and Hem Raj and for tampering with the proof. At this stage, the principle of law laid down by Hon'ble Supreme Court in the case of Jagdish Ram Vs. State of Rajasthan and another, reported in AIR 2004 SC 1734 is very important wherein the Hon'ble Supreme Court held that investigation is the job of police and taking of cognizance is within the jurisdiction of the Magistrate. If on the record, this much of evidence is available that prima facie cognizance can be taken then the Magistrate should take cognizance. Magistrate should be convinced that there is enough basis for further proceedings rather for sufficient basis for proving the guilt." 12. Assailing the said order, a Criminal Revision was filed before the High Court under Sections 397 and 401 of the Code, not by Dr. Rajesh Talwar, father of the girl but by Dr. Mrs. Nupur Talwar, her mother. 13. The High Court passed its order dated 18th 11 March, 2011 after a detailed consideration of the factual aspects and legal questions involved in the matter of taking cognizance and the same order is impugned before us. 14. In the concluding portion of its order, High Court held: "However, considering the facts of the case it is directed that in case the revisionist surrenders before the Special Judicial Magistrate (C.B.I.), Ghaziabad and applies for bail within a period of two weeks from today her bail application shall be dealt with in accordance with the law expeditiously." 15. On the next day i.e. 19th March 2011, which was a Saturday, a Bench of this Court entertained at 7 P.M. an SLP against the High Court's order and passed the following order:- "List on the notified date. In the meanwhile, there shall be stay as prayed for. However, the petitioners shall deposit their passports with the trial 12 Court on Monday i.e. 21.03.2011." 16. Since then, the matter has remained pending before this Court. 17. Now the question is what should be the extent of judicial interference by this Court in connection with an order of taking cognizance by a Magistrate while exercising his jurisdiction under Section 190 of the Code. 18. Section 190 of the Code lays down the conditions which are requisite for the initiation of a criminal proceeding. 19. At this stage the Magistrate is required to exercise sound judicial discretion and apply his mind to the facts and materials before him. In doing so, the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion irrespective 13 of the views expressed by the Police in its report and may prima facie find out whether an offence has been made out or not. 20. The taking of cognizance means the point in time when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence which appears to have been committed. 21. At the stage of taking of cognizance of offence, the Court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record. 22. The principles relating to taking of cognizance in a criminal matter has been very lucidly explained by this Court in S.K. Sinha, Chief Enforcement Officer Vs. Videocon 14 International Ltd. and Ors. - (2008) 2 SCC 492, the relevant observations are set out: "19. The expression "cognizance" has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means "become aware of" and when used with reference to a court or a Judge, it connotes" to take notice of judicially". It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone." 20. "Taking Cognizance" does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance." (para nos. 19 and 20 at page 499 of the report) 15 23. The correctness of the order whereby cognizance of the offence has been taken by the Magistrate, unless it is perverse or based on no material, should be sparingly interfered with. In the instant case, anyone reading the order of the Magistrate taking cognizance, will come to the conclusion that there has been due application of mind by the Magistrate and it is a well reasoned order. The order of the High Court passed on a Criminal Revision under Sections 397 and 401 of the code (not under Section 482) at the instance of Dr. Mrs. Nupur Talwar would also show that there has been a proper application of mind and a detailed speaking order has been passed. 24. In the above state of affairs, now the question is what is the jurisdiction and specially the duty of this Court in such a situation under Article 136? 25. We feel constrained to observe that at this 16 stage, this Court should exercise utmost restrain and caution before interfering with an order of taking cognizance by the Magistrate,otherwise the holding of a trial will be stalled. The superior Courts should maintain this restrain to uphold the rule of law and sustain the faith of the common man in the administration of justice. 26. Reference in this connection may be made to a three Judge Bench decision of this Court in the case of M/s. India Carat Private Ltd. Vs. State of Karnataka & Anr. (1989) 2 SCC 132. Explaining the relevant principles in paragraphs 16, Justice Natarajan, speaking for the unanimous three Judge Bench, explained the position so succinctly that we would rather quote the observation: as under:- "The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against 17 the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer; and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused..." 27. These well settled principles still hold good. Considering these propositions of law, we are of the view that we should not interfere with the concurrent order of the Magistrate which is affirmed by the High Court. 28. We are deliberately not going into various factual aspects of the case which have been raised before us so that in the trial the accused persons may not be prejudiced. We, therefore, 18 dismiss this appeal with the observation that in the trial which the accused persons will face, they should not be prejudiced by any observation made by us in this order or in the order of the High Court or those made in the Magistrate's order while taking cognizance. The accused must be given all opportunities in the trial they are to face. We, however, observe that the trial should be expeditiously held. 29. The appeal is accordingly disposed of. .............................J. (ASOK KUMAR GANGULY) .............................J. (JAGDISH SINGH KHEHAR) NEW DELHI, 06-01-2012

CYBER APPELLATE TRIBUNAL=Immediately disable access to any content, which is defamatory, derogatory, abusive and humiliative of the applicant’s company and its Chairman and CEO Sandy K.Chandra and further to disable access to all such content including disabling the said email account avinash.agnihotry@gmail.com.. (b) Further deliver by return email, the identity details of the sender (s) of the aforesaid defamatory and insinuating emails from the email account avinash.agnihotry@gmail.com including the contact number (cell number and email identity), address, telephone number, fax number and other identification details, if any.

CYBER APPELLATE TRIBUNAL (Ministry of Communications & Information Technology) Jeevan Bharti (LIC) Building, Connaught Place, New Delhi APPEAL NO. 6/2009 Date of decision May 28,2010 Dr.Avinash Agnihotry ……Appellant Through Mr.Pavan Duggal,Advo. With Mrs.Renu Narula,Advocate Versus GMAIL.COM & anr. Respondents Through Mr.Sajan Poovaya,Advo. With Mr.Parveen Sherawat,Advo. & Mr.Akhil Anand,Advocate CORAM: HON’BLE MR. JUSTICE RAJESH TANDON, CHAIRPERSON CYBER APPELLATE TRIBUNAL (Ministry of Communications & Information Technology) Jeevan Bharti (LIC) Building, Connaught Place, New Delhi APPEAL NO. 6/2009 Date of decision May 28,2010 Dr.Avinash Agnihotry S/o Mr.S.P.B.Agnihotry Mascon Global Limited, B 8/10, Vasant Vihar, New Delhi-110057 ……Appellant Through Mr.Pavan Duggal,Advo. With Mrs.Renu Narula,Advocate Versus GMAIL.COM C/o Google Inc., California, USA Email: removals@google.com And Google Inc.,California, USA Email: removals@google.com Respondents Through Mr.Sajan Poovaya,Advo. With Mr.Parveen Sherawat,Advo. & Mr.Akhil Anand,Advocate JUSTICE RAJESH TANDON, CHAIRPERSON Heard Mr.Pavan Duggal,Advocate assisted by Mrs.Renu Narula,Advocate for the appellant and Mr.Sajan Poovaya, Advocate assisted by Mr.Parveen Sherawat,Advocate and Mr.Akhil Anand, Advocate for the respondents. Present appeal has been filed praying following directions to respondents to 3 (a) Immediately disable access to any content, which is defamatory, derogatory, abusive and humiliative of the applicant’s company and its Chairman and CEO Sandy K.Chandra and further to disable access to all such content including disabling the said email account avinash.agnihotry@gmail.com.. (b) Further deliver by return email, the identity details of the sender (s) of the aforesaid defamatory and insinuating emails from the email account avinash.agnihotry@gmail.com including the contact number (cell number and email identity), address, telephone number, fax number and other identification details, if any. (c) Provide the complete details pertaining to the technicalities, headers and footers information and comprehensive identification parameters as also the complete computer logs of the entire electronic records and emails generated, sent, received and handled by or on behalf of the actual owner(s)/user(s) of the email account avinash.agnihotry@gmail.com in connection with the subject matter in the present application from the email account avinash agnihotry@gmail.com, including all electronic records and emails and other electronic communications generated, processed, sent or received therein; (d) Further disclose all the details concerning the true identity and comprehensive identification of the actual owner(s)/user(s) of the email account avinash.agnihotry@gmail.com and all relevant registration information connected therewith and further furnish all traffic data connected with the email account avinash.agnihotry@gmail.com. apart from preserving the 4 same, without any tampering or alteration of any kind whatsoever. (e) Immediately retain and preserve in the electronic form all electronic evidence pertaining to all the activities of the sender(s) of the aforesaid defamatory and insinuating emails from the email account avinash.agnihotry@gmail.com along with all electronic logs pertaining to, connected or associated with and relating to the aforesaid defamatory and insinuating emails and all activities of logins, postings, deletions and related activities thereon. (f) Preserve the said electronic evidence in a tamperproof manner, preserve its authenticity and veracity, without vitiating the evidence in any manner. (g) In case of the failure of the respondents to comply with sub paras (a) to (f), direct and require the respondents to produce before this Tribunal all concerned records, documents and all electronic records pertaining to the aforesaid contraventions and violations of the provisions of the Information Technology Act,2000 as amended using computers, computer systems, computer networks, computer resources and communication devices of the respondents as well as all data and information resident therein which has a connection, association, impact or relationship or nexus of any kind whatsoever pertaining to the aforesaid contraventions in violations of the provisions of the Information Technology Act 2000 as amended including identification details of the concerned person who has actually done the aforesaid contraventions or violations as per the records and electronic logs available on the computers, computer systems, computer networks, 5 computer resources and communication devices of the respondents. (h) Further to issue commission for the examination of all concerned documents, electronic logs as also electronic records residing in the computers, computer system, computer resources, computer networks and communication devices of the respondents in order to collect information about the various contravention and violations of the Information Technology Act 2000 as amended, as also rules, regulations, notifications, directions and orders made thereunder as detailed in the aforesaid paragraph. In para-7 of the petition, appellant has stated that he has sent the legal notice by email to the respondents. In para-8 of the petition, appellant declared that the matter regarding which this petition has been made is not pending before any court of law or any other authority and has not been rejected by any court of law or other authority. Respondents have filed Statement of objections wherein it has been stated that the appellant has impleaded Gmail.com as respondent No.1 and that Gmail.com is a service offered by GoogleInc., and is not a legal entity by itself, as such the appellant has wrongly impleaded Gmail.com as a party to the proceedings. Respondents have also objected to the maintainability of the appeal on the ground that without exhausting the alternative remedy the present appeal is not maintainable. It was further submitted that Section 57 of the Information Technology Act,2000 vests in this Tribunal’s jurisdiction to hear appeals from the orders of the Controller or the Adjudicating Officer and the Appellate Tribunal has been set up with the express and limited purpose of providing any party aggrieved from 6 the order of the Controller, a forum to seek redress. The jurisdiction of this Tribunal cannot extend to hearing any other application or petition that is not an appeal from the order of the Controller or an adjudicating officer. Heard counsels for both the parties at length. The present appeal raises the following points for consideration:- In view of the submissions made by the parties following points arise for determination:- (i) Whether the present appeal is maintainable without exhausting the alternative remedy of approaching the Controller of Certifying Authorities or the Adjudicating Officer appointed under the IT Act,2000.? (ii) Whether the ingredients made in the appeal amounted to an offence under the provisions of the Information Technology Act.? (iii) Relief Point No.(i) Coming to the first point i.e. with regard to the maintainability of the appeal, Act provides for adjudicating the offences i.e. Certifying Authority and Adjudicating Officer in respect of the different offences. Clauses (g) and (m) of Section 2 of the IT Act define the “Certifying Authority” and the “Controller”. Clauses (g) and (m) of Section 2 of the IT Act read as under:- (g) “Certifying Authority” means a person who has been granted a licence to issue a (Electronic Signature) Certificate under section 24; (m) “Controller” means the Controller of Certifying Authorities appointed under sub-section (1) of section 17. 7 Clause (n) of Section 2 of the IT Act defines the Cyber Appellate Tribunal as under:- (n) “Cyber Appellate Tribunal” means the Cyber Appellate Tribunal established under sub-section (1) of Section 48. Section 48 of the IT Act reads as under:- “48.Establishment of Cyber appellate Tribunal.- (1) The Central Government shall, by notification, establishes one or more appellate tribunals to be known as the Cyber Regulation Appellate Tribunal. (1) The Central Government shall also specify, in the notification referred to in Sub-section (1), the matters and places in relation to which the Cyber Appellate Tribunal may exercise jurisdiction.” Section 46 of the IT Act provides for the appointment of Adjudicating Officer. It reads as under:- 46. Power to adjudicate.- (2) For the purpose of adjudging under this Chapter whether any person has committed a contravention of any of the provisions of this Act or of any rule, regulation, direction or order made hereunder the Central Government shall, subject to the provisions of Sub-section (3),appoint any officer not below the rank of a Director to the Government of India or an equivalent officer of a State Government to be an adjudicating officer or holding an inquiry in the manner prescribed by the Central Government. (2) The adjudicating officer shall, after giving the person referred to in Sub-section (1) a reasonable opportunity for making representation in the matter and if, on such inquiry, he is satisfied that the person that the person has committed the contravention, he may impose such penalty or award such compensation as he thinks fit in accordance with the provisions of that section. (3)No person shall be appointed as an adjudicating officer unless he possesses such experience in the field of Information Technology and legal or judicial 8 experience as may be prescribed by the Central Government. (4)Where more than one adjudicating officer are appointed, the Central Government shall specify by order the matters and places with respect to which such officers shall exercise their jurisdiction. (5)Every adjudicating officer shall have the powers of a civil court which are conferred on the Cyber Appellate Tribunal under Sub-Section (2) of Section 58, and- (a)All proceedings before it shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860) (b)Shall be deemed to be a civil court for the purposes of Sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974) (c) Shall be deemed to be a Civil Court for purposes of Order XXI of the Civil Procedure Code,1908 (5 of 1908) Section 57 of the IT Act,2000 provides for filing the appeal before the Tribunal. It reads as under:- 57.Appeal to Cyber Appellate Tribunal.- (1) Save as provided in sub-section (2), any person aggrieved by an order made by Controller or an adjudicating officer under this Act may prefer an appeal to a Cyber Appellate Tribunal having jurisdiction in the matter. (2) No appeal shall lie to the Cyber Appellate Tribunal from an order made by an adjudicating officer with the consent of the parties. (3) Every appeal under sub-section (1) shall be filed within a period of forty five days from the date on which a copy of the order made by the Controller or the adjudicating officer is received by the person aggrieved and it shall be 9 in such form and be accompanied by such fee as may be prescribed: Provided that the Cyber Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period. (4) On receipt of an appeal under sub-section (1), the Cyber Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (5) The Cyber Appellate Tribunal shall send a copy of every order made by it to the parties to the appeal and to the concerned Controller or adjudicating officer. (6) The appeal filed before the Cyber Appellate Tribunal under sub section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal. A perusal of the aforesaid provision indicates that the appeal lies against the orders passed by the Controller of Certifying Authorities or the Adjudicating Officer appointed under Section 46 of the Information Technology Act. However, counsel for the appellant has submitted that this Court has inherent jurisdiction to decide the appeal even without exhausting the alternative remedy. Counsel for the appellant has referred the provisions of Section 58 of the Information Technology Act in order to support the argument. A perusal of the aforesaid provision indicates that the appeal lies against the orders passed by the Controller of Certifying Authorities or the Adjudicating Officer. 10 However, counsel for the appellant has submitted that this Court has inherent jurisdiction to decide the appeal even without exhausting the alternative remedy. Counsel for the appellant has referred the provisions of Section 58 of the Information Technology Act in order to support the argument. It will appear from the aforesaid definitions that the jurisdiction of the Certifying Authority is confined only to the digital signatures as contained under Chapter II and Chapter III, whereas Chapter IX relates to penalties, compensation and adjudication by the Adjudicating Officer and Chapter X relates to Cyber Appellate Tribunal Counsel for the respondents have pointed out that present appeal is not maintainable in as much as neither there is any order passed by the Controller nor the matter pertains to Chapter II, III, IV and V relating to electronic signatures. The matter relates to the offences covered under Chapter IX and XI and as such the Controller gets no jurisdiction and the appeal, therefore, is also not maintainable. Counsel for the appellant has submitted that this Tribunal has jurisdiction to decide the appeal even without exhausting the alternative remedy. In support of the arguments, counsel for the appellant has referred the following judgments. (i) Raja Soap Factory & Ors. Vs. S.P.Shantharaj & Ors. Reported in AIR 1965 SC 1449. (ii) L.Mool Chand & Ors. Vs. Fatima Sultana Begum & Ors. Reported in 1995(6) SCC 742. (iii) Jet Ply Wood Pvt.Ltd. & Ors.Vs. Madhukar Nowlakha & ors and Biswarup Banerjee & Ors. Vs.Madhukar Nowlakha, reported in AIR 2006, SCC 1260 (iv) Vikas Agarwal Vs. Anubha reported in AIR 2002 SC 1796. 11 (v) Shipping Corporation of India Ltd. Vs.Machado Brothers & Ors. Reported in 2004 (11) SCC 168. (vi) Lakshmi Natesan Versus Periasamy & ors. Of Chennai High Court in CMA No.9/2007 (vii) Justice P.Venugopal Vs. Union of India & ors. Reported in AIR 2003 SC 3887 (viii) Assistant Collector of Central Excise Chandan Nagar Vs. Dunlop India Ltd. & ors. Reported in AIR 1985 SC 330 and (ix) Hussainara Khatoon & Ors.Vs. Home Secretary, State of Bihar, reported in AIR 1979 SC 1360. Some of the judgments referred above are quoted below. Relevant portion (para-8) of the judgment in the case of Raja Soap Factory & ors. (supra) reads as under: “Section 151 of the Code of Civil Procedure preserves the inherent power of the Court as may be necessary for the ends of justice or to prevent abuse of the process of the Court. That power may be exercised where thee is a proceeding lawfully before the High Court. It does not however authorize the High Court to invest itself with jurisdiction where it is not conferred by law.” Relevant portion of para-25 of the judgment in the case of Jet Ply Wood Pvt.Ltd.(Supra) reads as under:- “25………..There is no doubt in our minds that in the absence of a specific provision in the Code of Civil Procedure providing for the filing of an application for recalling of an order permitting withdrawal of a suit, the provisions of Section 151 of the Civil Procedure Code can be resorted to in the interest of justice. The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito jutitiae for doing real and substantial justice between the parties.” 12 Relevant portion of para-11 of the judgment in the case of Vikas Agarwal (supra) reads as under:- “11……..It is submitted that inherent powers of the Court under Section 151 CPC can always be exercised to advance interest of justice and the technicalities will have no place in such matters…………………The contention that inherent powers under Section 151 CPC could not be exercised was repelled and it was held that there was nothing in Order XXXIX of the Code which expressly or by necessary implication precluded the exercise of inherent power of Court under Section 151 CPC and it was open for the Court to pass a suitable consequential order under Section 151 CPC as may be necessary for ends of justice or to prevent the abuse of process of Court……….” Relevant portion of the judgment in the case of Shipping Corporation of India Ltd. (supra) reads as under:- “The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercise if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code………..Whatever limitations are imposed by construction on the provisions of S.151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the court.” The aforesaid judgments have no application in the present case in view of the judgment delivered on 28th May,2010 in the case of Dr.Avinash Agnihotry Vs. Controller of Certifying Authorities and another, Appeal No.4/2009 Further the matter is fully covered by the judgment of the Apex Court in State of Uttar Pradesh Vs. Singhara Singh, reported in AIR 1964 SC 358 where the Apex Court has relied upon the judgment of Taylor V.Taylor (1876) 1 Ch.D 426 and decision in 13 Nazir Ahmed’s case 63 Ind.App 372( AIR 1936 PC 253 (2). Paras 8,12,13,17 and 19 of this judgment read as under:- “8.The rule adopted in Taylor v. Taylor (1876) 1 Ch. D 426 is well recognized and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not sc, the statutory provision might as well not have been enacted. A magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in S. 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of S. 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on magistrates the power to record statements or confessions, by necessary implication, prohibited a magistrate from giving oral evidence of the statements or confessions made to him.” 12. A similar argument was advanced in Nazir Ahmed’s case, 63 Ind App 372 : (AIR 1936 PC 253 (2) and rejected by the Judicial Committee. We respectfully agree with that view. The section gives power to make a record of the confession made by an accused which may be used in evidence against him and at the same time it provides certain safeguards for his protection by laying down the procedure subject to which alone the record may be made and used in evidence. The record, if duly made may not doubt be admitted in evidence without further proof but if it had not been so made and other evidence was admissible to prove that the statements recorded had been made, then the creation of the safeguards would have been futile. The safeguards were obviously not created for nothing and it could not have been intended that the safeguards might at the will of the prosecution be by passed. That is what would happen if oral evidence was admissible to prove a confession purported to have been recorded under S.164. Therefore it seems to us that the objection of s.164 was not to give the prosecution the advantage of Ss. 74 and 80 of the Evidence Act but to provide for evidence being made 14 available to the prosecution subject to due protection of the interest of the accused. 13.We have to point out that the correctness of the decision of Nazir Ahmed’s case 63, Ind App 372 : (AIR 1936 PC 253 (2) has been accepted by this Court in at least two cases, namely, Shiv Bahadur singh v. State of Vindhya Pradesh, 1954 SCR 1098 : (AIR 1954 SC 322) and Deep Chand v. State of Rajasthan, 1962-1 SCR 662 : (AIR 1961 SC 1527). We have found no reason to take a different view. 17.The next case to which reference was made by Mr. Aggarwala was Ghulam Hussain v. The Kind, 77 Ind App 65 (PC). That case dealt with the question whether a statement recorded under S.164 which did not amount to a confession could be used against the maker as an admission by him within Ss. 18 to 21 of the Evidence Act and it was held, that it could. The Judicial Committee observed that “the fact that an admission is made to a Magistrate while he is functioning under S. 164 of the Code of Criminal Procedure cannot take it outside the scope of the Evidence Act.” That case only held that the relevancy of a statement recorded under S.164 had to be decided by the provisions of the Evidence Act. We have nothing to do with any question as to relevancy of evidence. The question before us is whether a confession which is relevant can be proved by oral evidence in view of the provision of s. 164 of the Code. The question dealt with in Ghulam Hussain’s case, 77 Ind App 65 (PC) was quite different and that case has no bearing on the question before us. 19.Another case cited was Emperor v. Ram Naresh. ILR (1939) All 377 : (AIR 1939 All 242). What had happened there was that two accused persons walked into the court of a magistrate and wanted to make a confession. The magistrate called a petition writer and the accused persons dictated an application to him and that was taken down by the petition-writer and signed by them. That petition was admitted in evidence under S.21 of the Evidence Act. It was held, and we think rightly, that Nazir Ahmed’s case, 63 Ind App 372 : (AIR 1936 PC 253 (2) did not prevent the petition being admitted in evidence because it only forbade certain oral evidence being given. This case turned on wholly different facts and is of no assistance.” 15 In the case of Ajay Bansal Vs. Anup Mehta & ors, reported in 2007(Vol.II) SCC page 275, the Apex Court has held that, “Ordinarily, an application under Article 227 of the Constitution of India would not be maintainable where an appeal lies. An appeal lay from the decree under Section 96 of the Code. When an appeal could be filed, ordinarily, an application under Article 227 of the Constitution of India would not be entertained.” In the above judgment, it was also held, “The defendant in such a case can also be left to appeal against the decree and therein challenge the order refusing leave to defend in terms of Section 105(1) of the Code.” In view of the aforesaid case law by the Apex Court, no appeal is maintainable without exhausting the alternative remedy before the Adjudicating Officer. Further in view of the submissions made in para-7 of the appeal, the case is fully covered by the judgment in Appeal No.4/2009, Dr.Avinash Agnihotry Vs. Controller of Certifying Authorities and another decided on 28th May,2010, and no appeal is maintainable without exhausting the alternative remedy. Point No.(ii) Coming to the second point, since the appellant has not exhausted alternative remedy, therefore, I am not entering into the merits of the controversy and it will be open for the Adjudicating Officer to adjudicate the grievances in accordance with law. Counsel for the appellant has also submitted alternatively that the matter may be sent to the Adjudicating Officer for disposal. I am not inclined to accept the submission as there is 16 nothing on the record to indicate that any complaint has been filed before the Adjudicating Officer at any point of time as required under Section 46 of the Information Technology Act. On the other hand, any complaint filed before the Controller of Certifying Authorities will not serve the requirement of Section 46 of the Information Technology Act. The appellant is required to file a complaint before the Adjudicating Officer who has the jurisdiction for deciding the disputes. This point is decided in negative. Point No.(iii) Relief In view of the aforesaid, the appeal lacks merit and is dismissed at the admission stage. However, liberty is given to the appellant to file the complaint within 30 days of this judgment. The Adjudicating Officer shall not debar the appellant from filing a complaint as having been time barred and only the privilege of the time with regard to the pendency of the appeal shall be given automatically. At any stage if the Adjudicating Officer requires the record of the Appellate Authority in connection with the various orders passed from time to time, same may be called for the disposal of the complaint. Parties are left to bear their own costs. Registrar is directed to send a copy of this judgment to all the Adjudicating Officers of the States and the Union Territories for information and record. May 28,2010 (Justice Rajesh Tandon) Chairperson

Code of Criminal Procedure, 1973: Ss. 451 and 452-Custody or disposal during inquiry or trial of properly seized by police-Valuable articles, currency notes, vehicles, liquor, narcotic drugs etc. -Directions given for custody arid disposal of such articles so that no loss is caused either to State exchequer or to the owner of the property or to the Insurance company because of keeping them for a long time either in Police Malkhanas or at Police Stations.

CRIMINAL APPELLATE JURISDICTION : Special Leave Petition (CRL.) No. 2745 of 2002. From the Judgment and Order dated 20.6 2002 of the Gujarat High Court in Crl. R.A. No. 241 of 2002. WITH S.L.P.(Crl.) No. 2755 of 2002. Ujwal Kumar Jha, Aslam Ahmed, Ranjan Kumar Jha, Nakul Dewan and Ejaz Maqbool for the Petitioners. S.K. Dholakia and Ms. Hemantika Wahi for the Respondent. 2003 AIR 638 , 2002(3 )Suppl.SCR39 , 2002(10 )SCC283 , 2002(9 )SCALE153 , 2002(10 )JT80 CASE NO.: Special Leave Petition (crl.) 2745 of 2002 PETITIONER: SUNDERBHA1 AMBALAL DESAI RESPONDENT: STATE OF GUJARAT DATE OF JUDGMENT: 01/10/2002 BENCH: M.B. SHAH & D.M. DHARMADHIKARI JUDGMENT: JUDGMENT 2002 Supp(3) SCR 39 The following Order of the Court was delivered : In these two petitions filed by the police inspectors serving the Gujarat State, it has been contended that prosecuting agency has no right to ask for remand of petitioners (accused) for the purpose of collecting evidence and the application moved for remand of the petitioner (accused) was unjustified because anticipatory bail was granted to them. It is the prosecution version, as per the FIR lodged on 7.2.2002 by the Assistant Commissioner of Police 'D" Division, Surat that petitioners and other police personnel are involved in offences punishable under Sections 429, 420, 465, 468, 477-A and 114 IPC. It is alleged that when they were working at various police stations, they have committed offences during the period from 20.2.1992 to 23.11.2001 by replacement of mudammal articles including golden ornaments by other spurious articles, misappropriation of the amount which was kept at the police station, unauthorised auction of the property which was seized and kept in the police custody pending trial and tampering with the records of police station. The High Court by its judgment and order dated 20.6.2002 rejected the application against the order passed by the trial court granting remand of the petitioner. Hence, these special leave petitions. At the time of the hearing of these matters, learned counsel for the parties submitted that various articles are kept at the police station for a long period by not adhering to the procedure prescribed under Cr.P.C., which creates difficulties for keeping them in safe custody. Finally, the sufferers are-either the State exchequer or the citizens whose articles are kept in such custody. It is submitted that speedier procedure is required to be evolved either by the Court or under the rules for disposal of muddamal articles which are kept at various police stations as most of the police stations are flooded with seized articles. It is, therefore, submitted that directions be given so that burden of the Courts as well as at the police station can, to some extent, be reduced and that there may not be any scope for misappropriation or of replacement of valuable articles by spurious articles. Learned counsel further referred to the relevant Sections 451 and 457 of Code of Criminal Procedure, which read thus- "451. Order for custody and disposal of property pending trial in certain cases.-When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and. if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation-For the purposes of this section, "property" includes (a) property of any kind or document which is produced before the Court or which is in its custody. (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence. 457. Procedure by police upon seizure of property.- (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation." Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as- (1) for the proper custody pending conclusion of the inquiry or trial; (2) to order it to be sold or otherwise disposed of, after recording such evidence as it think necessary; (3) if the property is subject to speedy and natural decay, to dispose of the same. It is submitted that despite wide powers proper orders are not passed by the Courts. It is also pointed out that in the State of Gujarat there is Gujarat Police Manual for disposal and custody of such articles. As per the Manual also, various circulars are issued for maintenance of proper registers for keeping the muddamal articles in safe custody. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:- 1. Owner of the article would not suffer because of its remaining unused or by its misappropriation. 2. Court or the police would not be required to keep the article in safe custody; 3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail; and 4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles. The question of proper custody of the seized article is raised in number of matters. In Smt. Basawa Kom Dyanmangouda Patil v. State of Mysore and Anr., [1977] 4 SCC 358, this Court dealt with a case where the seized articles were not available for being returned to the complainant. In that case, the recovered ornaments were kept in a trunk in the police station and later it was found missing, the question was with regard to payment of those articles. In that context, the Court observed as under- "4. The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject-matter of an offence is seized by the police, it ought not to be retained in the custody of the Court or of the police for any time longer than what is absolutely necessary. As the seizure of the property by the police amounts to a clear entrustment of the property to a Government servant, the idea is that the property should be restored to the original owner after the necessity to retain it ceases. It is manifest that there may be two stages when the property may be returned to the owner. In the first place it may be returned during any inquiry or trial. This may particularly be necessary where the property concerned is subject to speedy or natural decay. There may be other compelling reasons also which may justify the disposal of the property to the owner or otherwise in the interest of justice. The High Court and the Sessions Judge proceeded on the footing that one of the essential requirements of the Code is that the articles concerned must be produced before the Court or should be in its custody. The object of the Code seems to be that any property which is in the control of the Court either directly or indirectly should be disposed of by the Court and a just and proper order should be passed by the Court regarding its disposal. In a criminal case, the police always acts under the direct control of the Court and has to take orders from it at every stage of an inquiry or trial. In this broad sense, therefore, the Court exercises an overall control on the actions of the police officers in every case where it has taken cognizance." The Court further observed that where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. To avoid such a situation, in our view, powers under Section 451 Cr.P.C. should be exercised promptly and at the earliest. Valuable Articles and Currency Notes With regard to valuable articles, such as golden or sliver ornaments or articles studded with precious stones, it is submitted that it is of no use to keep such articles in police custody for years till the trial is over. In our view, this submission requires to be accepted. In such cases, Magistrate should pass appropriate orders as contemplated under Section 451 Cr.P.C. at the earliest. For this purposes, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after:- (1) preparing detailed proper panchanama of such articles: (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451 Cr.P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs or such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451 Cr.P.C. to impose any other appropriate condition. In case, where such articles are not handed over either to the complainant or to the person from whom such articles are seized or to its claimant, then the Court may direct that such articles be kept in bank lockers. Similarly, if articles are required to kept in police custody, it would be open to the SIIO after preparing proper panchnama to keep such articles in a bank locker. In any case, such articles should be produced before the Magistrate within a week of their seizure. If required, the Court may direct that such articles be handed over back to the Investigating Officer for further investigation and identification, However, in no set of circumstances, the Investigating Officer should keep such articles in custody for a longer period for the purpose of investigation and identification. For currency notes, similar procedure can be followed. Vehicles Learned senior counsel Mr. Dholakia, appearing for the State of Gujarat further submitted that at present in the police station premises, number of vehicles are kept unattended and vehicles become junk day by day. It is his contention that appropriate directions should be given to the Magistrates who are dealing with such questions to hand over such vehicles to its owner or to the person from whom the said vehicles are seized by taking appropriate bond and the guarantee for the return of the said vehicles if required by the Court at any point of time. However, the learned counsel appearing for the petitioners submitted that this question of handing over vehicles to the person from whom it is seized or to its true owner is always a matter of litigation and a lot of arguments are advanced by the concerned persons. In our view, whatever be the situation, it is of no use to keep such-seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles. In case where the vehicle is not claimed by the accused, owner, or the insurance company or by third person, then such vehicle may be ordered to be auctioned by the Court. If the said vehicle is insured with the insurance company then insurance company be informed by the Court to take possession of the vehicle which is not claimed by the owner or a third person. If Insurance company fails to take possession, the vehicles may be sold as per the direction of the Court. The Court would pass such order within a period of six months from the date of production of the said vehicle before the Court. In any case, before handing over possession of such vehicles, appropriate photographs of the said vehicle should be taken and detailed panchnama should be prepared. For articles such as seized liquor also, prompt action should be taken in disposing it of after preparing necessary panchnama. If sample is required to be taken, sample may kept properly after sending it to the chemical analyser, if required. But in no case, large quantity of liquor should be stored at the police station. No purpose is served by such storing. Similarly for the Narcotic drugs also, for its identification, procedure under Section 451 Cr.P.C. should be followed of recording evidence and disposal. Its identity could be on the basis of evidence recorded by the Magistrate. Samples also should be sent immediately to the Chemical Analyser so that subsequently, a contention may not be raised that the article which was seized was not the same. However these powers are to be exercised by the concerned Magistrate. We hope and trust that the concerned Magistrate would take immediate action for seeing that powers under Section 451 Cr.P.C. are properly and promptly exercised and articles are not kept for a long time at the police station, in any case, for not more than fifteen days to one month. This object can also be achieved if there is proper supervision by the Registry of the concerned High Court in seeing that the rules framed by the High Court with regard to such articles are implemented properly. Adjourned for three weeks.

the maintainability of the suit of declaration and injunction in the light of Sections = whether the instant suit is barred either under Section 15 or 37 of the Act is required to be examined. We have already held that Section 15 only embodies a rule of evidence and does not create any bar of the jurisdiction of the Civil Courts. No doubt Section 37 creates a bar to the jurisdiction of the Civil Courts to entertain any suit or application; (a) to vary any decision or set aside any order given or passed under the Act; (b) with respect to any mater for which a proceeding could or ought to have been taken under the Act.

Non-reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL ) NO. 8225 OF 2003 ACHYUTANAND CHOUDHARY (D) THROUGH LRS. ......PETITIONERS Versus LUXMAN MAHTO & ORS. ......RESPONDENTS O R D E R CHELAMESWAR, J. 1. The maintainability of a Civil Suit filed by the respondents being titled suit No. 34 of 1996 filed in the Court of Subordinate Judge, Bhagalpur is the question raised in the Special Leave Petition. The suit is filed with the following prayer:- " That the plaintiffs pray for the following reliefs: (A) The court be pleased to hold and declare that the plaintiffs are the bonafide owners of the suit property having acquired Kayami right (right of occupancy) at the time of last cadastral survey and the entry of the suit property in the Khaitiayan of the defendant is wrong and illegal and result of collusion of survey amlas and did/does not confer any right to the defendant at any material time and the same is not binding upon the plaintiffs. (B) The court be further pleased to restrain the defendant from dispossessing the plaintiffs from the suit property or from disposing of the suit property by passing an order of the temporary injunction till the disposal of the suit.  2 (C) The cost of the suit be awarded to the plaintiff. " 2. For the sake of convenience the parties are referred to as they are arrayed in the suit. 3. The plaintiffs claim that the Suit Scheduled Property admeasuring 7.29 acres is owned by them and their ancestors and they have been in an uninterrupted possession of the same for the period of about 100 years. The instant suit is filed with the allegation that the defendants (petitioners herein), threatened to dispossess them (plaintiffs) on the ground that the Suit Scheduled Property has been recorded in the name of the defendant in the Consolidation Survey. The Relevant portion of the plaint reads as follows:- "That on 26.11.1995 for the first time the defendant came to the plaintiffs and disclosed that an area on 7.29 acres of land of the family of the plaintiffs have been recorded in the name of the defendant during consolidation survey for which P.S. Plot No. 793 area 5.97 and P.S. Plot No.755 area 1.32 have been made and land P.S. Khata No.4 the above two plots have been included along with other land of defendant so on such knowledge, the plaintiff sent a messenger to Bhagalpur for taking certified copy of Khatiyan of consolidation survey and when the copy of said Khatiyan was delivered to the messenger of the plaintiff on 2.12.1995 the above information of defendant was found to be correct on perusal of certified copy of Khatian aforesaid." 4. The instant Special Leave Petition is filed urging various questions of law regarding the maintainability of the suit in the light of Sections  3 37 and 15 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. (hereinafter referred to as "the Act"). 5. From the counter affidavit filed on behalf of the first respondent in the instant Special Leave Petition, it appears that after the trial of the suit commenced and two witnesses were examined on behalf of the plaintiffs, a petition was filed praying to determine the preliminary issue. The relevant portion of the counter affidavit reads as follows:- "That during the pendency of the suit aforesaid when the case was opened for trial and evidences on behalf of the respondents were started and two witnesses were examined, thereafter for the purpose of delaying the disposal of the suit, the petitioner filed a petition dated 11.9.2002 praying therein to determine preliminary issue on two questions namely, (1) the certificate of final Khatiyan of consolidation survey is a conclusive proof and for want of notice under section 80 C.P.C., the present suit cannot proceed which was replied by these respondents on 12.9.2002." 6. The learned sub-judge, Bhagalpur by his order dated 26.09.2002 rejected the said petition. Aggrieved by the same, the defendant carried the matter by way of a revision to the High Court of Patna. 7. The High Court dismissed the Revision by its order dated 14.1.2003 and hence the instant Special Leave Petition. 8. Unfortunately the defendants did not chose to place on record either the written statement filed by them in suit No. 34 of 1996 nor a copy of the application dated 11.9.2002 referred (supra). In order to  4 enable this Court to understand the exact scope of the defence and also the preliminary objections raised in the above-mentioned petition. Neither the order of the Trial Court dated 26.9.2002 nor the order of the High Court dated 14.1.2003 throw any light on the question. 9. However, in the instant Special Leave Petition, the submission made is that the suit is barred in view of Sections 15 and 37 of the Act. 10. From a perusal of the order of the trial court dated 26.09.2002, it appears that the objection raised is that in view of the declaration under Section 15 of the Act, the certificate issued under Section 15 is conclusive proof of the title of the holder of the certificate, and, therefore, the suit is not maintainable. It does not appear from the above-mentioned order that any specific objection on the basis of the bar contained under Section 37 of the act was pleaded. 11. In our opinion, the statutory declaration that a particular document is conclusive proof of a particular fact or legal right by itself, does not oust the jurisdiction of the Civil Courts. The effect of such a statutory declaration is that in any enquiry regarding the existence of such fact or a legal right, Courts/Tribunals are forbidden from entertaining any further evidence on such an issue the moment the document which is declared to be conclusive proof of such fact/legal rights is produced before the Court or Tribunal conducting  5 such an enquiry. The ouster of the jurisdiction is altogether a different matter. 12. The learned senior counsel Shri S.B. Sanyal, argued that the suit which is a subject matter of discussion is barred in view of the express language of Section 37 of the Act. He also relied upon the following decisions, Ram Krit Singh Vs. State of Bihar, AIR 1979 Patna 250 and Sheoratan Chamar and Ors. Vs. Ram Murat Singh alias Kishori Raman Singh & Ors., 1985 PLJR 86 in an attempt to support is submission that the suit is barred under Section 37 of the Act. 13. On the other hand learned counsel for the respondents Shri A.N. Choudhry relied upon a full Bench decision of the Patna High Court reported in 1990 (1) BLJR 51, Kalika Kaur alias Kalika Singh Vs. State of Bihar and Ors., in support of his submission that the suit is maintainable. 14. For an appreciation of the issue on hand, an examination of the scheme of the Act and relevant provisions is necessary. 15. The Act is virtually a sequel to the Abolition of Zamindaries in the State of Bihar. The purpose behind the Act is the consolidation of the small holdings and prevention of the fragmentation of the small pieces of land held by the raiyats. The expression `fragmentation' and `holding' and `raiyat' are defined under the Act. Section 3 of the Act  6 authorises the State Government to declare an intention to make a scheme for consolidation of holdings in any area by notification in the official gazette. 16. Section 4 declares that on the publication of such notification certain consequences enumerated therein would ensue. One of them being the "abatement" of all suits or legal proceedings for the correction of records, declaration of rights or interest in any land etc. covered by the notification. Such abatement is subject, of course, to certain conditions. The details of such are not necessary for the present purpose. 17. Section 8 of the Act stipulates that after publication of the notification under Section 3, an up to date record of rights shall be prepared in accordance with the various enactments specified therein. Section 8, in so far as it is relevant for the present purpose reads:- 8. Preparation of up-to-date record of-rights before consolidation.--(1) Save as provided in sub- section (2) as soon as may be after the publication of a notification under section 3, an up-to-date record of-rights, in respect of all lands comprised in the notified area, together with a map shall be prepared in accordance with the provisions of Chapter X of the Bihar Tenancy Act, 1885 (Act VIII of 1885), or as the case may be, Chapter XII of the Chota Nagpur Tenancy Act, 1908 (Ben. Act VI of 1908) or the Santhal Parganas Settlement Regulation, 1872 (Regulation III of 1872: [or the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 (Bihar Act 28 of 1975]:  7 18. On the preparation of such record-of-rights, the various steps contemplated in the subsequent provisions of the Act are required to be taken. The details of which are not necessary for the purpose of this case except to note that Section 11 contemplates the preparation of draft scheme. To indicate the nature of the draft scheme, we may extract Section 11 in so far as it is relevant. "11. Preparation of draft scheme-- Xxx xxx xxx (2) The Village Advisory Committee and the Assistant Consolidation Officer shall in preparation of a scheme of consolidation, keep the following factors in view, namely-- Xxx xxx xxx xxx (d) every raiyat is, as far as possible allotted a compact area of the plots where he holds the largest part of his holdings; Provided that no raiyat may be allotted more chaks than three except with the approval in writing of the Deputy Director of Consolidation." (e) every raiyat is, as far as possible allotted the plot on which exists his private source of irrigation or any other improvement, together with an area in the vicinity equal to the valuation of the plots originally held by him; (f) every raiyat is, as far as possible, allotted chaks in conformity with the process of rectangulation in rectangular units; and (g) subject to rules made in this behalf by the State Government, the lands held by an under raiyat is consolidated: Provided that the land allotted under the scheme to an under raiyat in lieu of any land held by him before the confirmation of the scheme shall form part of the new holding allotted under the scheme to the raiyat under whom the under raiyat originally held the land.  8 Section 13 prescribes that the draft scheme is required to be confirmed after considering the objections, if any, raised against such draft scheme. The section further mandates that the relevant extracts of the Consolidation scheme shall be granted to the concerned raiyat and declares that such extracts shall be the final allotment orders. 19. Section 15 contemplates the grant of a certificate:- 15(1) The Consolidation Officer shall grant to every raiyat to whom a holding has been allotted in pursuance of a scheme of consolidation a certificate in the prescribed form containing the prescribed particulars. Such certificate shall be conclusive proof of the title of such raiyat to such holding and he shall be liable for payment of such rent as may be specified in the certificate." Section 35 provides for a revision etc. to the Director of Consolidation against any case decided or proceedings taken under the provisions of the Act by any authority subordinate to him. The only other provision which is relevant for the present purpose is Section 37 which reads as follows:- "37. Bar of jurisdiction of Civil Courts.--No Civil Court shall entertain any suit or application to vary or set aside any decision or order given or passed under this Act with respect to any other matter for which a proceeding could or ought to have been taken under this Act." 20. In substance, under the said Section, the jurisdiction of the ordinary Civil Courts to entertain any suit, application either to stay or set aside any decision given or any order passed under the Act or  9 with respect to any matter for which a proceeding ought to have been taken is ousted. 21. In the background of the scheme of the Act, the question before us is the maintainability of Civil Suit filed by the respondent out of which the instant special leave petition arises. 22. Learned counsel for the defendant/petitioner relied upon the judgment in Ram Krit Singh (supra) and Sheoratan Chamar (supra) in support of the submission that the suit is not maintainable. In our opinion, neither of the judgments support the submission made by the learned counsel for the petitioner. In Ram Krit Singh (supra), a Full Bench of the Patna High Court was dealing with the effect of Section 4 of the Act on pending Civil Suits. We have already noticed that Section 4 declares that all pending suits with respect to the lands in the notified area shall abate. It was a case where the petitioners before the Patna High Court filed a suit in the year 1966 questioning certain alienation made by the first defendant in the suit in favour of the second defendant. While the suit was pending trial, a notification under Section 3 of the Act came to be issued. Therefore, the defendant raised preliminary objections that in view of the declaration under Section 4 of the Act, the suit had abated. The trial Court accepted the preliminary objection. Challenging the said decision of the trial Court and also the constitutionality of Section 4, 12A and 37 of the Act, the  10 plaintiffs thereon approached the High Court on the ground that those provisions violated Article 14 of the Constitution of India. 23. The Full Bench did not examine the scope of the content of Section 37. It was not necessary for the Full Bench to examine the question because the limited issue which fell for the consideration of the Full Bench on the facts of the case was the effect and constitutionality of Section 4 of the Act. 24. Coming to the next decision, Sheoratan Chamar and ors. Vs. Ram Murat Singh alias Kishori Raman Singh & Ors., 1985 PLJR 86 (Full Bench). In this case also the High Court was concerned with the effect of Section 4 on the pending suit on the date, the Notification under Section 3 of the Act was issued. 25. The scope of section 37 did not fall for consideration of the Full Bench. 26. On the other hand, the learned counsel for the respondent relied upon a judgment, Kalika Kuar alias Kalika Singh Vs. State of Bihar and Ors. reported in 1990 (1) BLJR 51 (Full Bench) in support of his submission that the respondents suit is maintainable. We need not examine the content of the judgment of the High Court for the simple reason that the said judgment stood set aside by this Court in  11 a Judgment reported in Kalika Kuar alias Kalika Singh Vs. State of Bihar and Ors., 2003 (5) SCC 448. 27. Therefore, the averment whether the instant suit is barred either under Section 15 or 37 of the Act is required to be examined. We have already held that Section 15 only embodies a rule of evidence and does not create any bar of the jurisdiction of the Civil Courts. No doubt Section 37 creates a bar to the jurisdiction of the Civil Courts to entertain any suit or application; (a) to vary any decision or set aside any order given or passed under the Act; (b) with respect to any mater for which a proceeding could or ought to have been taken under the Act. 28. From the material on record, it is not clear as to what exactly is the nature of the objection raised by the defendants to the maintainability of the suit. Whether the objection of the defendants to the maintainability of the suit is either under (a) or (b) mentioned above and what are the relevant facts are pleaded in support of the objection. It is also not possible to ascertain from the record whether the objection of the defendants is with rspect to both the prayers of the suit (extracted earlier) or otherwise. On the other hand, it appears that the trial of the suit is in progress. Therefore, we are of the opinion the extraordinary jurisdiction of this Court under Article 136 ought not to be exercised to interdict the suit. It is always open to the  12 defendants to seek the framing of an appropriate issue regarding the maintainability of the suit upon proper pleadings and invite a decision thereon. 29. The Special Leave Petition is, therefore, dismissed. ........................................J. ( P. SATHASIVAM) ........................................J. ( J. CHELAMESWAR ) New Delhi; January 06, 2012.