LAW FOR ALL

Monday, June 25, 2012

whether Section 621-A is mandatory or whether the said provision confers a discretion on the CLB to refuse to compound the offences where the penalty prescribed, for the offences alleged to have been committed, is merely a fine as, even if this Court were to proceed on the premise that the CLB has the discretion to refuse to compound the offences, such exercise of discretion can only be for just and valid reasons, and refusal to compound the offences cannot be at the mere whim and fancy of the CLB or for reasons which are wholly extraneous or irrelevant to the aspects required to be taken into consideration while exercising such discretion. As noted hereinabove C.C.Nos.394 and 400 of 2009 have not been clubbed with the other five cases (C.C.Nos.395 to 399 of 2009) nor has evidence been recorded in all these seven cases together. All these cases have been dealt with separately, though they are said to be listed on the same day. The letters to which Sri S.Ravi, Learned Senior Counsel, has drawn the attention of this Court to does indicate that the Ministry of Corporate Affairs of the Union of India, the CBI and the SFIO itself had no reason to suspect the involvement of Sri G.Jayaraman, Company Secretary in any of the offences in which the Chairman and Managing Director and other Directors of Satyam Computer Services Limited are said to be involved in. While it may not be appropriate for this Court to examine the authenticity of those letters, which have been relied upon by the appellants, (since these are matters which the CLB is required to examine while exercising its discretion under Section 621-A), it cannot, however, be lost sight of that, in one of the letters addressed by the CBI, it is stated that Sri G.Jayaraman had appeared on behalf of the prosecution, and was examined as a prosecution witness. The submission of Sri S.Ravi, Learned Senior Counsel, that the erstwhile Chairman and Managing Director, and the other erstwhile Directors of the company, are no longer involved in the company’s management; and the company itself was a victim of the fraud played by them, cannot be said to be without merit. These are relevant factors which the CLB should take into consideration while exercising its discretion to compound/not to compound the offences in exercise of its jurisdiction under Section 621A of the Act. Though Section 621A confers discretion on the CLB to also determine the quantum of the compounding fee, Sri S.Ravi, Learned Senior Counsel, would fairly state that the appellant company was ready and willing, if so ordered by the CLB, to pay the maximum amount prescribed under Section 621-A of the Act for compounding of such offences. The impugned orders of the CLB, in C.A.Nos.233 and 234 of 2010 dated 16.12.2011, are set aside, and the said applications are remanded back to the CLB for its consideration afresh in accordance with law. Since the trial in C.C.No.394 and 400 of 2009 is said to be at an advanced stage, it is but appropriate that the CLB decides C.A.Nos.233 and 234 of 2010 at the earliest, in any event not later than four weeks from the date of receipt of a copy of this order. It is made clear that this Court has not expressed any opinion on merits. It has merely noted the contentions, and has broadly indicated the aspects which the CLB should bear in mind while exercising its discretion whether or not to permit compounding of the offences alleged against the appellants in C.C.Nos.394 and 400 of 2009. Both the C.As. are, accordingly, disposed of at the stage of admission. ____________

THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN

COMPANY APPEAL Nos.1 AND 2 OF 2012

ORDER:

Both these appeals, under Section 10F of the Companies Act, 1956, are filed by the appellants herein aggrieved by the order of the Company Law Board (hereinafter called the CLB) in C.A.Nos.233 and 234 of 2010 dated 16.12.2011.

The aforesaid two applications were filed before the CLB under Section 621A of the Companies Act, consequent upon a complaint being filed by the department of Serious Fraud Investigation for Economic Offences, Hyderabad, which were subsequently numbered as Calendar Case Nos.394 and 400 of 2009 before the Court of the Special Judge for Economic Offences at Hyderabad. While C.C.No.400 of 2009 related to violation of the provisions of Section 220(1) read with Section 162 of the Companies Act, C.C.No.394 of 2009 was for violation of the provisions of Section 309 of the Companies Act read with Section 629-A thereof. The punishments specified under the Companies Act (hereinafter called the “Act”), for the offences alleged in C.C.Nos.394 and 400 of 2009, is only “fine”.

The applications in C.A.No233 and 234 of 2010, filed before the CLB, were for compounding of the offences alleged against the appellants herein, in C.C.Nos.394 and 400 of 2009; and the jurisdiction of the CLB, under Section 621A of the Act read with Regulation 44(1) of the Company Law Board Regulations, was invoked. The CLB, in the order under appeal, noted that a total of seven cases were filed against the appellants herein, and the other accused; they had allegedly paid Rs.2.66 Crores as professional charges to one of the Director of the company; this payment was over and above the salary that was being paid to him; failure to obtain approval of the Central Government in this regard had resulted in violation of Section 309(1) of the Act; the said person was appointed as a Director only in order to facilitate siphoning of funds; violation of the statutory provisions under the Companies Act was not merely technical in nature; and the averment, that the company was also a victim of the fraud perpetrated by the erstwhile management, was not a ground to permit compounding of the offence; and it could be ascertained only upon conclusion of the trial. The CLB further held that the Company Secretary (applicant No.2) was equally responsible for violation of the provisions of the Act; the offence was a continuing one; the same was brought to light only upon investigation; the applicants had not been candid in the matter of placing of materials and facts, and had not complied with the rule of full disclosure; and, as such, the present compounding applications could not be entertained. The CLB noted that applicant No.2 had admitted that he had committed a bonafide error in not filing the auditor’s report with the balance sheet for the relevant two years thereby violating Section 220(1) of the Act; the Registrar of Companies, Hyderabad, vide letter dated 26.8.2009, had confirmed that the Company’s Balance sheets, in respect of the period 31.3.2006 to 31.3.2008, did not contain several crucial and mandatory details; in the light of the objection raised by the SFIO, these offences could not be termed as purely non-compliance of the laid down provisions; the issue involved was a question of fact which needed to be enquired into during trial; there was considerable force in the contention of the SFIO that there was a fundamental inter-linkage between the seven cases filed by them on the basis of investigation, followed by the confession of Sri B.Ramalinga Raju, Ex-Chairman of the company which revealed large scale falsification of accounts of the company for several years prior to 7.1.2009; and the offences mentioned in C.C.Nos.394 and 400 of 2009 were also required to be tried along with the other cases. The CLB, therefore, declined to exercise its discretion under Sections 621A of the Act, and dismissed both C.A.Nos.233 and 234 of 2010. Aggrieved thereby, the present appeals.

Sri S.Ravi, Learned Senior Counsel appearing on behalf of the appellants, would draw attention of this Court to the letter dated 21.7.2011 addressed by the Deputy Director - Ministry of Corporate Affairs, to the Director-Serious Fraud Investigation Office, New Delhi wherein, while drawing his attention to the Ministry’s instruction in its letter dated 13.11.2009, the Deputy Director stated that prosecution for violation of Section 309(1)(b) read with Section 629-A and Section 220 of the Act, instructed to be filed against the company i.e., company only, may be withdrawn, and an action taken report be furnished after compliance. Learned Senior Counsel would also draw attention of this Court to the letter addressed by the Joint Director, CBI dated 7.7.2011 informing the present Chairman of the company that the Company Secretary Sri G.Jayaraman had been cited as a prosecution witness in RC.4(S)/2009-Hyd relating to the Satyam Scam case; he had been examined as a prosecution witness, and his cross-examination had been completed; the investigation carried out by the CBI did not reveal the role of Sri G.Jayaraman in the fraud perpetrated by the then Chairman Sri B.Ramalinga Raju and others in the company; this had no bearing on investigation being carried out by other agencies; and investigation, with regards diversion of funds of the company by Sri B. Ramalinga Raju and others, was in progress. Reliance is also placed by the Learned Senior Counsel on the supplementary investigation report of the SFIO dated 23.10.2009, under Section 235 of the Companies Act, wherein it is recorded that their investigation had not revealed the involvement of Company Secretary in the act of falsification; he had signed the said statements believing it to be the true and correct picture of the financial status of the company; as per the terms of his employment he had nothing to do with the preparation of the said accounts; therefore the Company Secretary may be excluded from such proceedings; similarly the company, being a juristic person, had acted through its directors and managerial persons, and was itself a victim of fraud; such directors, and managerial persons, had acted in a malafide manner and had falsified the accounts of the company; and, therefore, the company, being a victim of the fraud, could also be excluded. Learned Senior Counsel would also draw attention of this Court to the letter addressed by the DIG, CBI, ACZ, Hyderabad to the Chief Finance Officer of Mahindra Satyam that the culpability of Sri G.Jayaraman, Company Secretary, had not come to their notice during the course of investigation.

Learned Senior Counsel would submit that, as Sri G.Jayaraman, (Company Secretary) was a prosecution witness; and the aforesaid letters disclose that he was not involved in the fraudulent acts of the erstwhile Chairman and Directors of Satyam Computer Services Ltd, the CLB had erred in placing reliance on the other cases, (wherein the erstwhile Chairman and Managing Director and other Directors of Satyam Computer Services Ltd were involved), for refusing to exercise its jurisdiction under Section 621A of the Act. Learned Senior Counsel would submit that, since M/s Mahindra Satyam had, at the behest of the Central Government, invested in the equity share capital of the company and had taken over its management, it was evident that the company itself was a victim of the fraud; and prosecuting the victim, when Section 621A conferred jurisdiction on the CLB to compound such offences, was wholly illegal. Placing reliance on Official Liquidator v. Dharti Dhan (P) Ltd[1], Learned Senior Counsel would contend that Section 621 A is mandatory, and does not confer any discretion on the CLB to refuse to compound offences where the punishment prescribed for violation of the specified provisions of the Act was mere fine, and not imprisonment.

On the other hand Sri M. Ravindran, Learned Addl. Solicitor General appearing on behalf of both the Union of India and the Registrar of Companies, would submit that, while these two case (C.C.394 and 400 of 2009) filed for violation of the provisions of Sections 309 and 220 of the Companies Act read with Section 162 and 629A prescribe a penalty of fine only and not imprisonment, these two applications for compounding of the offences is just a prelude for applications to be filed later by the erstwhile Chairman and Directors of the company who are arrayed as the accused in the five cases in C.C.Nos.395 to 399 of 2009. Learned Addl. Solicitor General would submit that, while C.C.No.398 of 2009 was filed for violation of the provisions of Sections 205 and 205(8) of the Companies Act which prescribes punishment of fine only, in the other four cases (C.C.No.395 to 397 and 399) the punishment stipulated under the relevant provisions of the Act is fine or imprisonment or both. Learned Addl. Solicitor General would draw attention of this Court to Section 274(1)(d) of the Act whereunder a person shall not be capable of being appointed as a director of a company if he has been convicted by a Court of any offence involving moral turpitude, and sentenced in respect thereof to imprisonment for not less than six months, and a period of five years has not elapsed from the date of expiry of the sentence. He would also refer to Schedule XIII of the Act whereunder no person shall be eligible for appointment as a Managing Director or a Whole-time Director or a Manager of a company unless he satisfies the condition of not being sentenced to imprisonment for any period, or to a fine exceeding of Rs.1000/-, for the conviction of an offence under any of the sections of the Companies Act. Learned Additional Solicitor General would submit that since a person whose offence is compounded does not suffer the disqualification of a conviction, the CLB has the discretion to refuse to compound the offences in an appropriate case and require the accused to face the trial in the criminal case instituted against him; a discretion is conferred under Section 621A and the CLB is not bound to compound offences in all cases involving fine; and it can, in appropriate cases and for just and valid reasons, exercise discretion to refuse to compound the offences.

On being asked whether C.C.Nos.394 and 400 of 2009 have either been clubbed, or are being heard together, with the other five cases referred to hereinabove, Learned Addl. Solicitor General would fairly state that evidence was recorded in each of these cases separately, and the other five case are not clubbed either with C.C.No.394 or with C.C.No.400 of 2009. He would also concede that though Sri G.Jayaraman, the Company Secretary, also continues to be the Senior Vice-President of the Company, neither does he fall within the definition of a Managing Director, a Whole-time Director or a Manager of the company.

The amendment to Section 621A of the Act, by the Companies Second Amendment Act, 2002 (Amendment Act 11 of 2003), has not yet come into force; and, as such, the said provision, as it stood prior to its amendment, is applicable to the cases on hand. Under Section 621A(1), notwithstanding anything contained in the Code of Criminal Procedure, 1973, any offence punishable under the Act (whether committed by a company or any officer thereof) not being an offence punishable with imprisonment only, or with imprisonment and also with fine, may, either before or after the institution of any prosecution, be compounded by the CLB on payment or credit by the company or the officer, as the case may be, to the Central Government of such sums as that Government may prescribe. Under the first proviso thereto the sum so specified shall not, in any case, exceed the maximum amount of the fine which may be imposed for the offence so compounded. Section 220 of the Companies Act (violation of which is alleged in C.C.No.400 of 2009) requires the balance sheet and the profit and loss account to be laid before a company at the Annual General Meeting, and to be filed with the Registrar of Companies within 30 days thereafter. Failure to comply with Section 220 attracts the penal provision of Section 162 whereunder the company, and every officer of the company who is in default, shall be punishable with fine which may extend to Rs.500/- for every day during which the default continues. Under the proviso to Section 309(1) of the Act any remuneration for services rendered by any director in any other capacity shall not be so included if (a) the services rendered are of a professional nature and (b) in the opinion of the Central Government, the Director possesses the requisite qualifications for the practice of the profession.

The case of the prosecution, in short, is that the fees paid to Sri Krishna G Palepu, who was hitherto appointed as the Director of the Company, could not have been paid in the absence of permission being granted by the Central Government under Section 309(1)(b) of the Act. Under Section 629-A of the Companies Act, where no specific penalty is provided elsewhere in the Act, if a company or any other person contravenes any provision of the Act or any condition, limitation or restriction, the company, and every officer who is in default or such other person, shall be punishable with fine which may extend to Rs.5000/-, and where the contravention is a continuing one with a further fine which may extend to Rs.500/- for every day during which the contravention continues. Even on conviction by a competent Criminal Court, both Sections 162 and 629A (which are the penal provisions applicable for violation of Section 220 and 309 of the Act), merely require payment of fine, and not imprisonment. Even if C.C.Nos.394 and 400 of 2009 end in conviction of the accused, the punishment which can be imposed by the Criminal Court is merely imposition of fine, which under Section 621-A of the Act, the CLB itself is empowered to impose on the offences being compounded. It is no doubt true that, on the offences being compounded by the CLB, the accused, in whose cases the offence is compounded, would not suffer the consequences of a conviction by a competent Criminal Court. As the first appellant is the company, the consequences of conviction, as stipulated under Section 274(1)(d) and Schedule XIII of the Act, would not be attracted. Whether the aforesaid statutory provisions would be attracted in case the 2^nd appellant (the company secretary is convicted in C.C.Nos.394 and 400 of 2009) is a matter for the CLB to examine while exercising its discretion under Section 621-A of the Act.

It is wholly unnecessary for this Court to go into the question whether Section 621-A is mandatory or whether the said provision confers a discretion on the CLB to refuse to compound the offences where the penalty prescribed, for the offences alleged to have been committed, is merely a fine as, even if this Court were to proceed on the premise that the CLB has the discretion to refuse to compound the offences, such exercise of discretion can only be for just and valid reasons, and refusal to compound the offences cannot be at the mere whim and fancy of the CLB or for reasons which are wholly extraneous or irrelevant to the aspects required to be taken into consideration while exercising such discretion. As noted hereinabove C.C.Nos.394 and 400 of 2009 have not been clubbed with the other five cases (C.C.Nos.395 to 399 of 2009) nor has evidence been recorded in all these seven cases together. All these cases have been dealt with separately, though they are said to be listed on the same day. The letters to which Sri S.Ravi, Learned Senior Counsel, has drawn the attention of this Court to does indicate that the Ministry of Corporate Affairs of the Union of India, the CBI and the SFIO itself had no reason to suspect the involvement of Sri G.Jayaraman, Company Secretary in any of the offences in which the Chairman and Managing Director and other Directors of Satyam Computer Services Limited are said to be involved in. While it may not be appropriate for this Court to examine the authenticity of those letters, which have been relied upon by the appellants, (since these are matters which the CLB is required to examine while exercising its discretion under Section 621-A), it cannot, however, be lost sight of that, in one of the letters addressed by the CBI, it is stated that Sri G.Jayaraman had appeared on behalf of the prosecution, and was examined as a prosecution witness. The submission of Sri S.Ravi, Learned Senior Counsel, that the erstwhile Chairman and Managing Director, and the other erstwhile Directors of the company, are no longer involved in the company’s management; and the company itself was a victim of the fraud played by them, cannot be said to be without merit. These are relevant factors which the CLB should take into consideration while exercising its discretion to compound/not to compound the offences in exercise of its jurisdiction under Section 621A of the Act. Though Section 621A confers discretion on the CLB to also determine the quantum of the compounding fee, Sri S.Ravi, Learned Senior Counsel, would fairly state that the appellant company was ready and willing, if so ordered by the CLB, to pay the maximum amount prescribed under Section 621-A of the Act for compounding of such offences.

The impugned orders of the CLB, in C.A.Nos.233 and 234 of 2010 dated 16.12.2011, are set aside, and the said applications are remanded back to the CLB for its consideration afresh in accordance with law. Since the trial in C.C.No.394 and 400 of 2009 is said to be at an advanced stage, it is but appropriate that the CLB decides C.A.Nos.233 and 234 of 2010 at the earliest, in any event not later than four weeks from the date of receipt of a copy of this order. It is made clear that this Court has not expressed any opinion on merits. It has merely noted the contentions, and has broadly indicated the aspects which the CLB should bear in mind while exercising its discretion whether or not to permit compounding of the offences alleged against the appellants in C.C.Nos.394 and 400 of 2009.

Both the C.As. are, accordingly, disposed of at the stage of admission.

____________

12-03-2012

Note:

Issue C.C. in one week

B/o

asp

[1] AIR 1977 SC 740

Saturday, June 23, 2012

THE HON'BLE SRI JUSTICE VAMAN RAO

CRIMINAL PETITION No.401 OF 2000

16/02/2000

Pedda Geliche Divasekhar Reddy
and others.

petitioner

The State rep. By its P.P.

respondent

<CRIMINAL PROCEDURE CODE - - Sec. 482 - - Quash proceedings - - Preleminary
enquiry for offence under S. 354 I.P.C. - - Mere assault on a woman or causing
hurt to a woman does not constitute an offence under S.354 - - Ingredients of
Sec.354 analysed - - Taking cognizance of the offence under S.354 quashed.

>HELD:

Her (victim's) version as found in her 161 of CrPC statement discloses that
while her husband and herself were passing through the field of the accused in
their double bullock cart the accused objected to the passing of the cart
through their field. When her husband LW.1 sought to justify his action on the
ground that there was no other passage, the accused hit him with sticks.
According to the victim when she tried to intervene when the accused were
hitting her husband, they also hit her with sticks. There is not even a hint
that the accused had any intention of outraging her modesty.

Section 354 of IPC is intended to punish as a special vise and an offence
against public morality and decency. The essence of the offence is the
intention on the part of the accused to outrage the modesty of a woman. Modesty
is the quality of being modest which in respect of a woman means decent in
manner and conduct, chaste, distancing from indecency. Decency means propriety
of behaviour . Behavior which is inconsonance of good taste which includes
avoidance of obscene language and gesture and avoidance of undue exposure of
person. It connotes respectability. Decorum means propriety of speech and
manner and maintenance of dignity. Mere assault on a woman or causing hurt to a
woman cannot constitute an offence under Section 354 of IPC. The acts
attributed to the accused must be accompanied by an intention to outrage the
modesty of a woman. The acts attributed to the accused must have some special
significance or connotation in respect of the woman quo a woman.

Counsel for the Petitioner: Mr. M.Prasada Rao,

Counsel for the Respondents: The Public Prosecutor.

:ORDER:
This petition under Section 482 of CrPC seeks quashing of the proceedings in PRC
no.50 of 1999 as far as offence under Section 354 of IPC is concerned.
The relevant facts may be stated as follows:
On a complaint given by one Markapuram Narayana (L.W.1) N.P.Kunta police station
a case was registered in Crime no.20 of 1999 for the offences under sections
341,324,354 read with section 34 of IPC. The facts as disclosed from the
complaint are that on 17.4.1999 at about 10.00a.m. while the de facto
complainant Markapuram Narayana along with his wife Kanthamma were transporting
manure to his fields in double bullock cart and were passing through the land of
the accused, the latter objected for the cart passing through the land and a
wordy altercation ensured between them. In the meanwhile A2 to A4 joined A1
and attacked the complaint and assaulted with sticks. It is further stated that
while some witnesses L.W.2, the petitioner herein and L.W.3 went to rescue the
defacto complainant they were also assaulted with sticks by the accused. In
this incident, L.Ws.1 to 3 sustained bleeding multiple injuries. On the basis
of investigation, the Sub-Inspector of Police,N.P.Kunta P.S. filed a charge
sheet for the offence under section 324 read with section 34 of IPC against the
petitioners. However, the learned Magistrate after perusing the charge sheet
seems to have taken cognizance of the offence under section 34 of IPC also. It
is this taking cognizance for the offence under Section 354 of IPC which is
sought to be quashed in this petition under Section 482 of CrPC.
The learned counsel for the petitioners contends that neither in the charge
sheet nor in the depositions of witnesses, there is any remote hint as to the
commission of an offence under Section 354 of IPC and as such, as far as the
offence under Section 354 of IPC is concerned it may be quashed. The learned
Public Prosecutor fairly concedes that the statements of relevant witnesses
disclose that there is nothing to show that an offence under Section 354 of IPC
is alleged against the accused.
I have gone through the statements of L.W.2 Markapuram Kanthamma, who is a lady
in respect of whom the learned Magistrate has taken cognizance of the offence
under Section 354 of IPC. Her version as found in her 161 of CrPC statement
discloses that while her husband and herself were passing through the field of
the accused in their double bullock cart the accused objected to the passing of
the cart through their field. When her husband LW.1 sought to justify his
action on the ground that there was no other passage, the accused hit him with
sticks. According to L.W.2. when she tried to intervene when the accused were
hitting her husband, they also hit her with sticks. There is not even a hint
that the accused had any intention of outraging her modesty.

Section 354 of IPC is intended to punish as a special vise and an offence
against public morality and decency. The essence of the offence is the
intention on the part of the accused to outrage the modesty of a woman. Modesty
is the quality of being modest which in respect of a woman means decent in
manner and conduct, chaste, distancing from indecency. Decency means propriety
of behaviour . Behavior which is inconsonance of good taste which includes
avoidance of obscene language and gesture and avoidance of undue exposure of
person. It connotes respectability. Decorum means propriety of speech and
manner and maintenance of dignity. Mere assault on a woman or causing hurt to a
woman cannot constitute an offence under Section 354 of IPC. The acts
attributed to the accused must be accompanied by an intention to outrage the
modesty of a woman. The acts attributed to the accused must have some special
significance or connotation in respect of the woman quo a woman.
In the case of STATE PUNJAB V. MAJOR SINGH(1), His Lordship Justice Mudholkar
held that any act done to or in the presence of a woman is clearly suggestive
of sex according to the common notions of a woman is clearly suggestive of six
according to the common notions of mankind that must be fell within section
354 of IPC. In the same judgment, His Lordship Bachawat,J. observed that the
essence of a women's modesty is her sex and from her very birth she possess the
modesty which is the attribute of her sex.
Relying on this judgment, the Supreme Court in the case of RUPAN DEOL BAJAJ
V.KANWAR PAL SINGH GILL (2) observed that the element of test for ascertaining
whether the modesty has been outraged is the action of the offender such as
could be perceived as one which is capable of shocking the sense of decency of a
woman. The Supreme Court also held that where the intention or knowledge is one
of the ingredients of any offence, it has got to be proved like other ingredient
for convicting the person but such an intention has to be inferred from the
attending circumstances of a given case.
In this case, the allegation against the accused are that while the woman was
intervening when the accused were beating her husband, they caused hurt to her
also. In this case, the circumstance as set out in the complaint do not
disclose that the accused had any intention to affront the dignity and decency
of the alleged victim. On the other hand, a plain reading of the allegations in
the complaint would go to show that the accused beat and caused hurt to the
alleged victim merely because she intervened when they were beating her husband.
The consequence of offence as narrated in the first information report would
show that the accused were motivated by anger at the husband of victim and the
victim herself for the wrong they perceived was done by them by trespassing into
his land by carrying their bullock cart. There is no even a remote suggestion
that the accused had an intention to offend the modesty of a woman or slight her
feminine deceny.
The facts as alleged , even if they are accepted as true, do not appear to
constitute an offence under Section 354 of IPC. It would sub serve the ends of
justice if the petitioner is not made to go ordeal of facing of trial under
Section 354 of IPC.
In the result, taking cognizance of the offence under Section 354 of IPC is
wholly unwarranted and this petition is allowed and the cognizance shall be
confined to the offence under Section 324 read with Section 34 of IPC.

?1. AIR 1967 SC 63
2. 1995 SCC (CRL) 1059

Service Law: Date of birth - Correction of - Representation made 9 years after joining the service - Suit filed five years thereafter - HELD: Application for change in date of birth causes prejudice and disturbance in the working of the Department - Courts below should not have entertained the claim beyond the period provided in the Rules, which in the instant case, required the application to be made within two years - Whether the suit was time barred or not, the claim was, in any case, belated - Punjab Civil Services Rules, 1994 - Delay/Laches. The date of birth of respondent no. 1 at the time of his joining the Government service on 2.4.1992 was recorded in his service book as 25.3.1962 on the basis of his matriculation certificate. On 2.7.2001 he gave a representation for correction of his date of birth as 25.11.1962. By order dated 24.9.2002 his representation was rejected on the ground that no application for correction in date of birth submitted after two years from entry into service could be entertained. Respondent no. 1 gave a notice u/s 80 CPC on 10.11.2005, and thereafter filed a suit on 16.10.2006 for a declaration that the order dated 24.9.2002 was bad in law. The suit was decreed. The decree was affirmed by the first appellate court as also by the High Court in second appeal. Aggrieved, the State Government filed the appeal. Allowing the appeal, the Court HELD: 1.1 The relevant rule always required an application for correction of date of birth to be submitted within two years from joining the service. The amended rule of 20.12.2000 made a slight modification that the application filed after two years could be considered which will be only on the recommendation of the Administrative Department. This provision has now been removed after the rule was amended on 13.8.2001. [para 12] 1.2 It has been held time and again that the application for correction of date of birth should not be dealt with keeping in view only the public servant concerned, but it is also to be looked into from the point of view of the department and the employees engaged therein. The other employees have expectations of promotion based on seniority and suddenly if such change is permitted, it causes prejudice and disturbance in the working of the department. It is, therefore, quite correct for the State to insist that such application must be made within the time provided in the rules, say, two years, as in the present case. [para 14] Secretary and Commissioner, Home Department vs. R. Kirubakaran 1993 ( 2 ) Suppl. SCR 376=1994 Suppl. (1) SCC 155; State of UP vs. Gulaichi 2003 (1 ) Suppl. SCR762 = 2003 (6) SCC 483; State of Punjab vs. S C Chadha 2004 (2) SCR216 = 2004 (3) SCC 394; and State of Gujarat vs. Vali Mohmed Dosabhai Sindhi 2006 (3 ) Suppl. SCR685 = 2006 (6) SCC 537 - relied on. 1.3 It is also seen that such applications are made very often, almost at the end of the service of the employee or in any case, belatedly. In the instant case, the application was made after some nine years of entering into service. Even assuming that respondent no. 1 came to know in June 2001 that there was an error in his date of birth entered in the matriculation certificate, as claimed by him, he took more than three years to issue the notice u/s 80 CPC and then to file the suit. Whether the suit was time barred or not, the claim was in any case belated. It has to be filed within the time provided or within a reasonable time and it is not to be entertained merely on the basis of plausible material. [para 15] State of UP vs. Shiv Narayan Upadhyay 2005 (1) Suppl. SCR847 = 2005 (6) SCC 49 - relied on. 1.4 In the circumstances, the High Court as well as the courts below clearly erred in entertaining the claim of respondent No.1 for correction in his date of birth at a belated stage. The rules, in the instant case, all throughout required such application to be made within two years. Therefore, the courts clearly erred in finding fault with the appellant for allegedly applying the Notification of 13.8.2001 retrospectively which was not the case over here. [para 16-17] Union of India vs. Harnam Singh 1993 (1) SCR862= 1993 (2) SCC 162 - referred to. Case Law Reference: 1993 (2) Suppl. SCR376 relied on para 13 2003 (1) Suppl. SCR762 relied on para 13 2004 (2) SCR216 relied on para 13 2006 (3) Suppl. SCR685 relied on para 13 2005 (1) Suppl. SCR847 relied on para 15 1993 (1) SCR862 referred to para 16 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7415 of 2010. From the Judgment & Order dated 18.09.2007 of the High Court of Punjab & Haryana at Chandigarh in Regular Second Appeal No. 3013 of 2007. Manjit Singh, Sukhda Pritam, Prashant Shukla, Kamal Mohan Gupta for the Appellant. Manoj Swarup, Ankit Swarup, Devesh Kumar Tripathi, Ajay Kumar, for the Respondents.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7415 OF 2010
(ARISING OUT OF SPECIAL LEAVE PETITION NO. 2901 OF 2008)

State of Haryana Appellant
Versus

Satish Kumar Mittal and another Respondents

JUDGMENT

GOKHALE, J.

1. Leave granted.

2. This appeal seeks to challenge the order passed by the High

Court of Punjab and Haryana in Regular Second Appeal No.3013/2007

dated 18.9.2010 whereby the learned single judge has confirmed the

judgment of the Additional District Judge and that of the Civil Judge, Senior

Division, whereby he had granted a decree in favour of the Ist respondent

herein.
2

The short facts leading to this appeal are as follows:

3. Respondent No.1 joined the office of the Director of

Prosecution, Haryana, as an Assistant District Attorney on 2.4.1992. At that

time, he got the date of his birth recorded in the service book on the basis

of the Matriculation Certificate in which the date was mentioned as

25.3.1962. It is the case of the first respondent that there was a family

function in June 2001 where his relatives gathered, and wherein during the

discussion he came to know that his date of birth was actually 25.11.1962,

and that the one recorded in the matriculation certificate was erroneous.

4. The first respondent made a representation on 2.7.2001 for

correction of the date of birth, which was rejected by the communication

dated 24.9.2002 from the Superintendent of Jails and the Judicial and

Financial Commissioner (who is also the Principal Secretary to the

Administration of Judicial Department) addressed to the Director of

Prosecution, State of Haryana. The representation was rejected on the

basis of Finance Department's Notification dated 13.8.2001, which laid
3

down that no application for correction in date of birth, submitted after two

years from entry into service, can be entertained.

5. The first respondent gave a notice under section 80 of the

Code of Civil Procedure (hereinafter referred to as the `CPC' for short) on

10.11.2005 and thereafter filed a suit on 16.10.2006 for a declaration that

the decision dated 24.9.2002 was bad in law. The second respondent

herein viz. Secretary, Board of School Education, Haryana, was joined as

second defendant in the suit though he was a proforma-defendant.

6. The Learned Addl. Civil Judge, Senior Division, who decided

the suit, being Civil Suit No.18 of 2006 took the view that the appellant was

giving a retrospective effect to the Notification dated 13.8.2001 and that

was not permissible. The Learned Civil Judge held that the suit was within

time and granted a decree that the order dated 24.9.2002 was illegal, null

and void and that the date of birth of the first respondent was 25.11.1962.

7. The appellant filed an appeal against this judgment and order

to the Court of the Additional District Judge, Karnal being Civil Appeal

No.66/2007 which came to be dismissed and so also the Regular Second
4

Appeal No.3013/2007, which was filed against that order. The Learned

Single Judge dismissed the second appeal by a short order in view of the

concurrence of views of the courts below.

8. Being aggrieved by all these orders, the present appeal by

Special Leave has been filed. It is submitted on behalf of the appellant

that the first respondent joined as the Assistant District Attorney on

2.4.1992 and the date of birth given by him on the basis of the

matriculation certificate was recorded in his service book. Nine years later,

he has sought to correct the date of birth, allegedly on the basis of the

discussion at a family function and by pointing out the extracts of births of

his brothers and sisters (though in none of them, there is any name of the

child). Even after his representation was turned down on 24.9.2002 on the

basis of the Government Notification dated 13.8.2001, he took more than

three years to serve the notice under Section 80 of the CPC, which was

served on 10.11.2005 and the suit was filed almost one year thereafter on

16.10.2006. The appellant submitted that the action on part of the first

respondent was belated. It suffers from latches and the suit was also

barred by limitation. The Respondent No.1 on the other hand, defended

the impugned judgments as correctly rendered.
5

9. It was submitted on behalf of the appellant that the Courts

below have erred in not accepting the appellant's submission on the basis of

the Notification dated 13.8.2001 issued by the Finance Department,

Government of Haryana, containing the amendments to the Punjab Finance

Rules framed under Article 283(2) of the Constitution of India. It is

submitted that the Courts have erred in treating this as a case of

retrospective application of the relevant rule. It is pointed out that prior to

the Notification dated 13.8.2001 also there was the governing rule 2.5 of

the Punjab Civil Services Rules 1994 which laid down that the date of birth

of the government employees, once recorded in the service book, cannot be

corrected except in case of a clerical error without previous order of the

government. The rule further provided that the date of birth/declaration of

age made at the time of entry into service shall be deemed to be conclusive

as against the government servant, unless he applies for correction of his

age within two years from the date of his entry into government service.

The relevant Rule contained in paragraph 1 of those rules

reads as follows:-

"ANNEXURE (A)

(Referred to in Rule 2.5 and Note 3 thereunder)

1. In regard to the date of birth a declaration of age made
at the time or for the purpose of entry into Government service
shall, as against the Government employee in question be
deemed to be conclusive. The employee already in the service
of the Government of Punjab on the date of coming into force
6

of the Punjab Civil Services (First Amendment) Rules. Volume-
I, Part-I, 1994, may apply for the change of date of birth within
a period of two years from the coming into force of these rules
on the basis of confirmatory documentary evidence such as
Matriculation Certificate or Municipal Birth Certificate etc. No
request for the change of date of birth shall be entertained
after the expiry of the said period of two years. Government,
however, reserves the right to make a correction in the
recorded age of a Government employee at any time against
the interest of the Government employee when it is satisfied
that the age recorded in his service book or in the History of
service of a Gazetted Government employee is incorrect and
has been incorrectly recorded with the object that the
Government employee may derive some unfair advantage
therefrom."

10. This provision was later on amended and under the rules

amended on 20.12.2000, it was provided that if application is made beyond

two years, it must be considered on the recommendation of the

Administrative Department and the Chief Secretary only in consultation with

the Finance Department. It was entirely left to the discretion of the

government whether to entertain any such application. The principle

provision, which required that the employee must apply within two years,

remained unaltered. This rule amended on 20.12.2000 reads as follows:

"1. These rules may be called Punjab Financial Volume-I
(Haryana First Amendment) Rules, 2000.

2. In the Punjab Financial Rules, Volume-I, in Annexure
`A' referred to in Rule 7-3 and Note 3 thereunder,-

(I) For paragraph 1, the following paragraph
shall be substituted, namely:-
7

1. In regard to the date of birth a declaration of age
made at the time of, or for the purpose of entry into Government
service, shall be against the Government employee in question,
be deemed to be conclusive unless he applied for correction of
his age as recorded within two years from the date of his entry
into Government service. Wherever, it is proposed to consider
the application of the employee for correction of his age within a
period of two years from the date of his entry into government
service, the same would be considered by the government in
consultation with the Chief Secretary to Government of Haryana.
In cases where such application has been made beyond the
stipulated period and is proposed to be accepted, the same shall
be considered on recommendations of the Administrative
Department and the Chief Secretary to Government of Haryana,
in consultation with the Finance Department, Government
however, reserves the right to make a correction in the recorded
age of the government employee at any time against the interest
of that government employee when it is satisfied that the age
recorded in his service book or in the history of services of a
government employee is incorrect and has been incorrectly
recorded with the object that the government employee may
derive some unfair advantage therefrom."

11. Subsequently, by the notification dated 13.8.2001 amending the

rules, it is once again made clear that unless the application is made within

two years, no change in the date of birth will be entertained. This new rule

1, as amended on 13.8.2001 reads as follows:

" 1. These rules may be called Punjab Financial Volume-I
(Haryana First Amendment) Rules, 2001.

2. In the Punjab Financial Rules, Volume-I, in Annexure
`A' referred to in Rule 7.3 and Note 3 thereunder:-

(i) for paragraph 1, the following paragraph shall be
substituted, namely:-
8

1. In regard to the date of birth, a declaration of age
made at the time of, or for the purpose of entry into government
service, shall as against the government employee in question,
be deemed to be conclusive unless he applied for correction of
his age as recorded within two years from the date of his entry
into government service. No application submitted beyond the
stipulated period of two years for change in date of birth will be
entertained. Wherever the application for correction of his age is
submitted by the employee within a period of two years from the
date of his entry into government service, the same would be
considered by the government in consultation with the Chief
Secretary to Government of Haryana. The government, however,
reserves the right to make a correction in the recorded age of
government employee at any time against the interest of that
government employee when it is satisfied that the age recorded
in his service book or in the history of services of a government
employee is incorrect and has been incorrectly recorded with the
object that the government employee may derive some unfair
advantage therefrom."

12. Thus, as seen from the above position, the relevant rule

always required an application for correction of date of birth to be

submitted within two years from joining the service. The amended rule of

20.12.2000 made a slight modification that application filed after two years

could be considered which will be only on the recommendation of the

Administrative Department. This provision has now been removed after the

rule was amended on 13.8.2001.

13. The import of such a provision has been clarified by this court

from time to time. Thus, in paragraph 7 of the Secretary and
9

Commissioner, Home Department vs. R.Kirubakaran [1994 (Suppl.

1) SCC 155] this Court held as follows:

" An application for correction of the date of birth should not
be dealt with by the tribunal or the High Court keeping in
view only the public servant concerned. It need not be
pointed out that any such direction for correction of the date
of birth of the public servant concerned has a chain
reaction, inasmuch as others waiting for years, below him
for their respective promotions are affected in this process.
Some are likely to suffer irreparable injury, inasmuch as,
because of the correction of the date of birth, the officer
concerned, continues in office, in some cases for years,
within which time many officers who are below him in
seniority waiting for their promotion, may lose their
promotions for ever. Cases are not unknown when a person
accepts appointment keeping in view the date of retirement
of his immediate senior. According to us, this is an important
aspect, which cannot be lost sight of by the court or the
tribunal while examining the grievance of a public servant in
respect of correction of his date of birth. As such, unless a
clear case, on the basis of materials which can be held to be
conclusive in nature, is made out by the respondent, the
court or the tribunal should not issue a direction, on the
basis of materials which make such claim only plausible.
Before any such direction is issued, the court or the tribunal
must be fully satisfied that there has been real injustice to
the person concerned and his claim for correction of date of
birth has been made in accordance with the procedure
prescribed, and within the time fixed by any rule or order. If
no rule or order has been framed or made, prescribing the
period within which such application has to be filed, then
such application must be filed within the time, which can be
held to be reasonable."

The Court has, thereafter stated that burden in such cases lies

on the applicant and noted that in many of such cases, the employees

approach the Court on the eve of retirement. The Courts and Tribunals
1

must be slow in granting any interim relief in such cases. The same

principle has been reiterated in State of UP vs. Gulaichi [2003 (6) SCC

483]; State of Punjab vs. S C Chadha [2004 (3) SCC 394]; and State of

Gujarat vs. Vali Mohmed Dosabhai Sindhi [2006 (6) SCC 537].

14. As recorded above, it has been held time and again that the

application for correction of date of birth is also to be looked into from the

point of view of the concerned department and the employees engaged

therein. The other employees have expectations of promotion based on

seniority and suddenly if such change is permitted; it causes prejudice and

disturbance in the working of the department. It is, therefore, quite correct

for the State to insist that such application must be made within the time

provided in the rules, say, two years, as in the present case.

15. It is also seen that such applications are made very often,

almost at the end of the service of the employee or in any case, belatedly.

Whatever may be the reason, the fact remains that in the present case, the

application was made after some nine years of joining into service. Even

assuming that first respondent came to know in June 2001 that there was

an error in his date of birth entered in the matriculation certificate, as

claimed by him, he took more than three years to issue the notice under
1

Section 80 of the CPC and then to file the suit. Whether the suit was time

barred or not, the claim was in any case belated. It has to be filed within

the time provided or within a reasonable time and it is not to be entertained

merely on the basis of plausible material as held in Kirbukaran (supra).

As observed by this Court in State of UP vs. Shiv Narayan Upadhyaya

[2005 (6) SCC 49]:

"As such, unless a clear case on the basis of clinching
materials which can be held to be conclusive in nature, is
made out by the respondent and that too within a
reasonable time as provided in the rules governing the
service, the court or the Tribunal should not issue a
direction or make a declaration on the basis of materials
which make such claim only plausible."

16. In the circumstances in our view, the High Court as well as

the courts below clearly erred in entertaining the claim of Respondent No.1

for correction in his date of birth at a belated stage. In such a matter, we

are concerned with the correction in the date of birth for the purpose of

service record and not for any other purpose. The observation of this

Court in para 7 of the Union of India vs. Harnam Singh [1993 (2) SCC

162] in this behalf are quite apt.

"7. A Government servant, after entry into service,
acquires the right to continue in service till the age of
retirement, as fixed by the State in exercise of its powers
regulating conditions of service, unless the services are
dispensed with on other grounds contained in the relevant
service rules after following the procedure prescribed therein.
The date of birth entered in the service records of a civil
servant is, thus of utmost importance for the reason that the
1

right to continue in service stands decided by its entry in the
service record. A Government servant who has declared his
age at the initial stage of the employment is, of course, not
precluded from making a request later on for correcting his
age. It is open to a civil servant to claim correction of his date
of birth, if he is in possession of irrefutable proof relating to
his date of birth as different from the one earlier recorded and
even if there is no period of limitation prescribed for seeking
correction of date of birth, the Government servant must do
so without any unreasonable delay. In the absence of any
provision in the rules for correction of date of birth, the
general principle of refusing relief on grounds of laches or
stale claims, is generally applied by the courts and tribunals.
It is nonetheless competent for the Government to fix a time-
limit, in the service rules, after which no application for
correction of date of birth of a Government servant can be
entertained. A Government servant who makes an application
for correction of date of birth beyond the time, so fixed,
therefore, cannot claim, as a matter of right, the correction of
his date of birth even if he has good evidence to establish that
the recorded date of birth is clearly erroneous. The law of
limitation may operate harshly but it has to be applied with all
its rigour and the courts or tribunals cannot come to the aid of
those who sleep over their rights and allow the period of
limitation to expire. Unless altered, his date of birth as
recorded would determine his date of superannuation even if
it amounts to abridging his right to continue in service on the
basis of his actual age. ................."

17. This being so, the courts should not have entertained the

claim of the first respondent belatedly and beyond the period provided in

the rules. The rules, in the instant case, all throughout required such

application to be made within two years. Therefore, the courts clearly erred

in finding fault with the appellant for allegedly applying the Notification of

13.8.2001 retrospectively which was not the case over here.
1

18. In the circumstances, we allow this appeal and set aside the

orders passed by the High Court as well as by the courts below. The suit

filed by the first respondent will stand dismissed.

........................................J.
(R.V. Raveendran )

.........................................J.
(H.L. Gokhale )

New Delhi

Dated : September 7, 2010

Penal Code, 1860 - ss.452 and 354 - Code of Criminal Procedure, 1973 - ss. 211, 212, 215 and 464 - Accused charged with having entered the house of PW1 and assaulting her with intent to outrage her modesty - Evidence however indicated that accused assaulted PW1's daughter-in-law to outrage her modesty - Whether accused could be punished, for assaulting and outraging the modesty of PW1's daughter-in-law', even though he was not charged with any offence with reference to PW1's daughter-in-law', on the ground that the error or omission in the charge did not prejudice the accused or result in failure of justice - Held, No - The accused could not be punished for committing an offence against PW1's daughter-in-law when he was charged with having committed the offence against PW1 and the entire defence of the accused was with reference to charge of having committed offence against PW1 - New trial directed after charging the accused with the offence of outraging the modesty of PW1's daughter-in-law. Interpretation of Statutes - Illustrations under a provision of a Statute - Held: They offer relevant and valuable indications as to meaning and object of the provision and are helpful in the working and application of the provision. The appellant was charged with the offences of trespassing into the house of PW1 and attempting to outrage her modesty. The appellant pleaded not guilty to the said charge and claimed trial. The Magistrate held the appellant guilty of offences under Sections 452 and 354 IPC and sentenced him to rigorous imprisonment for six months. One of the contentions urged by the appellant before the first appellate court and the High Court was that the charge against him was that he attempted to outrage the modesty of Prakashi Devi (PW-1) whereas the evidence was to show that he attempted to outrage the modesty of Sheela Devi, daughter-in-law of PW1. He contended that as the charge levelled against him was not proved, and as he was not required to defend himself against a charge that he assaulted and outraged the modesty of PW1's daughter-in-law, he ought to have been acquitted. This was negatived by the appellate court and the High Court holding that an accused cannot take advantage of a technical defect in framing the charge. It was held that mentioning the name of PW1 instead of the name of her daughter-in-law in the charge was an error that did not prejudice the accused-appellant. In the instant appeal the question for consideration was: When the charge was that the accused assaulted PW1 and outraged her modesty, but the evidence was that he assaulted PW1's daughter-in-law to outrage her modesty, can the accused be punished, for assaulting and outraging the modesty of PW1's daughter-in-law', even though he was not charged with any offence with reference to PW1's daughter-in-law', on the ground that the error or omission in the charge did not prejudice the accused or result in failure of justice. Allowing the appeal, the Court HELD:1.1. In the instant case, the charge was that the appellant committed trespass into the house of PW1, assaulted her and outraged her modesty. The accused concentrated his cross-examination with reference to the said charge and elicited answers showing that he did not assault or outrage the modesty of PW1. The evidence of PW-1 and PW-2 was that the appellant did not touch or tease or abuse PW1. Their evidence was that he touched/caught the hand of PW1's daughter-in-law and when she raised an alarm, he ran away. When the charge was that the accused attempted to commit trespass into the house of PW1 with intent to outrage the modesty of PW1, the conclusion of the appellate court and the High Court that there was no failure of justice if he is punished for the offence of having assaulted PW1's daughter-in-law and outraging her modesty, is opposed to principles of fair play and natural justice embodied in Sections 211, 212, 215 and 464 of the Code of Criminal Procedure, 1973. [Para 11] [352-G-H; 353-A-D] 1.2. The principles relating to sections 212, 215 and 464, CrPC, which are relevant to this case, are as follows: (i) The object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The charge must also contain the particulars of date, time, place and person against whom the offence was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (ii) The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defence will be prejudiced. Where an accused is charged with having committed offence against one person but on the evidence led, he is convicted for committing offence against another person, without a charge being framed in respect of it, the accused will be prejudiced, resulting in a failure of justice. But there will be no prejudice or failure of justice where there was an error in the charge and the accused was aware of the error. Such knowledge can be inferred from the defence, that is, if the defence of the accused showed that he was defending himself against the real and actual charge and not the erroneous charge. (iii) In judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself. [Para 9] [351-C-H; 352-A-B] State of Himachal Pradesh v. Geeta Ram 2000 (7) SCC 452, distinguished. Willie (William) Staney v. State of Madhya Pradesh AIR 1956 SC 116; Gurbachan Singh v. State of Punjab AIR 1957 SC 623; Shamnsaheb M. Multtani vs. State of Karnataka 2001 (2) SCC 577; State of West Bengal vs. Laisal Haque AIR 1989 SC 129; State of A.P. vs. Thakkidiram Reddy 1998 (6) SCC 554; Dalbir Singh v. State of UP 2004 (5) SCC 334; Dumpala Chandra Reddy vs. Nimakayala Bali Reddy 2008 (8) SCC 339 and Sanichar Sahni vs. State of Bihar 2009 (7) SCC 198, relied on. 2.1. When the accused is charged with having entered the house of PW1 and assaulted her with intent to outrage her modesty and when the accused defended himself in regard to the said charge and concentrated on proving that the said charges were not true, he cannot be convicted for having assaulted and outraging the modesty of someone else, namely PW1's daughter- in-law. The accused did not have any opportunity to meet or defend himself against the charge that he assaulted PW1's daughter-in-law and outraged her modesty. Nor did he proceed with his defence on the understanding that he was being charged with having committed the offence with reference to PW1's daughter-in-law. One of the fundamental principles of justice is that an accused should know what is the charge against him so that he can build his defence in regard to that charge. An accused cannot be punished for committing an offence against `Y' when he is charged with having committed the offence against `X' and the entire defence of the accused was with reference to charge of having committed offence against `X'. [Para 11] [353-B-G] 2.2. The illustrations under a provision of a Statute offer relevant and valuable indications as to meaning and object of the provision and are helpful in the working and application of the provision. Illustration (e) under section 215 of CrPC, as contrasted from illustration (d) under that section, throws some light on this issue. Applying the guidance offered by the said illustrations and the legal principles evolved by this Court, the position will be as follows : If PW1's daughter-in-law alone had been present at the house at the time of the incident and the accused had assaulted and outraged the modesty of the said PW1's daughter-in-law, but in the charge the name of the victim had been erroneously mentioned, say as Sushila Devi or Prakashi Devi (though there was no person by such name), and the inquiry exclusively referred to the assault and outraging the modesty of PW1's daughter-in-law, the court could infer that the accused was not misled and the error in the charge was immaterial. On the other hand, if two persons were present in the house at the time of the incident, namely, PW1 and PW1's daughter-in-law and the accused is charged with trespassing into the house of PW1, and assaulting and outraging the modesty of the said PW1, and the witnesses refer only to the assault and outraging the modesty of PW1's daughter-in-law, the court will have to infer that the accused was prejudiced, if the accused had solely concentrated and focused his defence and entire cross-examination to show that he did not commit the offences against PW1. [Para 12] [353-G-H; 354-A-F-H; 355-A] 2.3. The court having charged the accused with the offence of having trespassed into the house of PW1 with intent to assault her and having further charged him for having assaulted her by outraging her modesty, convicts him on the ground that though he did not assault or outrage the modesty of PW1, he had outraged the modesty of PW1's daughter-in-law, that would lead to failure of justice. There was a material error in the charge as it violated the requirement of sub-section (1) of section 212 of CrPC, that the charge shall contain particulars as to the person against whom the offence was committed. There were two women present at the house at the time of the alleged incident, namely, PW1 and her daughter-in-law. In view of the specific charge, the accused concentrated on showing that the charge was false. He did not attempt to meet the case made out in the trial that the offence was against PW1's daughter-in-law. The accused was thus clearly misled by the error in the charge which caused prejudice to the accused thereby occasioning failure of justice. Therefore, there should be a new trial after charging him with the offence of outraging the modesty of PW1's daughter-in-law. [Para 13] [355-B-E] 3. The conviction of the accused-appellant is set aside and the matter is remitted to the trial court with a direction for a new trial after framing a charge by substituting the words "her daughter-in-law Sheela Devi" for the words "abovenamed Prakashi Devi", in the second part of the charge. [Para 14] [355-F-G] Case Law Reference: AIR 1956 SC 116 relied on Para 8 AIR 1957 SC 623 relied on Para 8 2001 (2) SCC 577 relied on Para 8 AIR 1989 SC 129 relied on Para 8 1998 (6) SCC 554 relied on Para 8 2004 (5) SCC 334 relied on Para 8 2008 (8) SCC 339 relied on Para 8 2009 (7) SCC 198 relied on Para 8 2000 (7) SCC 452 distinguished Para 10 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1696 of 2010. From the Judgment & Order dated 16.3.2010 of the High Court of Punjab & Haryana at Chandigarh in Criminal Revision No. 441 of 2002. Vikas Sharma, K.M. Gupta, Praveen Swarup for the Appellant.

Reportable
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1696 OF 2010
[Arising out of SLP (CRL.) No.4624 of 2010]

Main Pal ... Appellant

Vs.

State of Haryana ... Respondent

JUDGMENT

R. V. RAVEENDRAN J.,

Leave granted.

2. An FIR was registered on 23.3.1996 on the statement of one Prakashi

Devi. She stated that on the night of 22/23.3.1996, while she and her

daughter-in-law Sheela Devi were sleeping in her house, around 11.30 PM,

the appellant jumped over the front wall of her house and broke the bulbs

and ran away; that at that time, no male member was present in the house

except the children; that around 00.30 AM the appellant again came into her

house and touched her daughter-in-law Sheela Devi who woke up and raised
2

an alarm; and that the appellant immediately ran away. The police

investigated into the said complaint and submitted a report under Section

173 of the Code of Criminal Procedure (for short `the Code'). On that basis,

the following charge was framed by the Judicial Magistrate, First Class,

Karnal, against the appellant -

"That on 23.3.1996, after having made preparation for causing hurt or
assault, you committed house trespass into the house of Smt. Prakashi
Devi, and thereby committed an offence punishable under section 452 IPC
within my cognizance. Secondly on the same date, time and place, you
assaulted and used criminal force against abovenamed Prakashi Devi
with intent to outrage her modesty and thereby committed an offence
punishable under section 354 IPC and within my cognizance.

And I hereby direct that you be tried on the above said charge by this
court."
(emphasis supplied)

When the said charged was read over and explained to the appellant,

he pleaded not guilty to the said charge and claimed trial.

3. Prakashi Devi was examined as PW-1. She reiterated what was

recorded in the FIR, that the appellant came into the house around 11.30 PM

and broke the bulbs, that he came again around 00.30 AM and touched her

daughter-in-law (Sheela Devi) and when her daughter-in-law woke up and

raised an alarm, the appellant ran away. In her cross-examination, Prakashi

Devi stated that she has five sons; that only her husband and one son named

Mahavir were staying with her; that the other four sons were married and
3

were not staying with her; that on that night, her husband was away in the

fields and her son Mahavir was also not present in the house. However,

when confronted with her statement recorded in the FIR, she admitted

having stated that when the appellant had come first time at around 11.30

PM and broke the outside bulbs, her son woke up and went out of the house.

She also admitted that the appellant did not touch her nor teased her nor

abused her. Her daughter-in-law Sheela Devi gave evidence as PW-2 and

stated that she was married to one Jaibir who worked in the military

services; that at 11 to 11.30 PM the accused scaled the door and broke the

bulbs in the verandah of her house; that when she identified the accused and

raised an alarm the accused ran away; that again he came around 00.30 AM

by scaling the door and caught her hand; and that when she raised an alarm

and when her mother-in-law woke up, he ran away. It was elicited in her

cross-examination that the accused did not go towards her mother-in-law nor

say anything to her mother-in-law; that she used to come to the village

where her in-laws were residing, only when her husband came home; and

that the house of her father-in-law was surrounded by the houses of his

brothers and their sons. Both PW1 and PW2 stated that the house of the

accused was at a distance of 15-16 houses from the house of Prakashi Devi;

that the accused had never come into their house earlier; that their family
4

and the accused were not on visiting terms with each other even during

functions, marriages or death, though they were on visiting terms with others

in the village. PW 2 also stated that she did not know the particulars of the

dispute between the accused and her in-laws. The investigating officer was

examined as PW-3. The accused examined a witness Ex-Sarpanch of the

village as DW-1 and he stated that there was a quarrel between the accused

and complainant's son Surinder about a water course and subsequently he

came to know that the quarrel was converted into a false case against the

accused by registering a false allegation that the accused had outraged the

modesty of a woman.

4. The learned Magistrate by judgment dated 2.2.2001, held the accused

guilty of offences under sections 452 and 354 Cr.PC and sentenced him for

rigorous imprisonment for six months and a fine of Rs.1,000/- in default

thereof simple imprisonment for one month. The appeal filed by the accused

was dismissed by the Addl. Sessions Judge on 20.2.2002. The criminal

revision filed by the appellant was disposed of by the High Court on

16.3.2010 upholding the conviction but reducing the sentence from six to

four months rigorous imprisonment. That order is challenged by the accused.
5

5. One of the contentions urged by the accused before the appellate court

and High Court was that the charge against him was that he attempted to

outrage the modesty of Prakashi Devi (PW-1) whereas the evidence was to

show that he attempted to outrage the modesty of her daughter-in-law Sheela

Devi. He contended that as the charge levelled against him was not proved,

and as he was not required to defend himself against a charge that he

assaulted and outraged the modesty of Sheela Devi, he ought to have been

acquitted. This was negatived by the appellate court and High Court holding

that an accused cannot take advantage of a technical defect in framing the

charge. It was held that mentioning the name of Prakashi Devi instead of the

name of Sheela Devi in the charge was an error that did not prejudice the

accused.

6. The following question therefore arises for our consideration: When

the charge is that the accused assaulted `X' and outraged her modesty, but

the evidence is that he assaulted `Y' to outrage her modesty, can the accused

be punished, for having assaulting and outraging the modesty of `Y', even

though he was not charged with any offence with reference to `Y', on the

ground that the error or omission in the charge did not prejudice the accused

or result in failure of justice.
6

7. Section 211 of the Code relates to the contents of the charge. It inter

alia provides that every charge under the Code shall state the offence with

which the accused is charged. Section 212 of the Code provides that the

charge shall contain the particulars as to the time and place of the alleged

offence, and the person (if any) against whom, or the thing (if any) in respect

of which, it was committed, as are reasonably sufficient to give the accused

notice of the matter with which he is charged. Section 215 of the Code

however clarifies that no error in stating either the offence or the particulars

required to be stated in the charge, and no omission to state the offence or

those particulars, shall be regarded at any stage of the case as material,

unless the accused was in fact misled by such error or omission, and it has

occasioned a failure of justice. Section 464 of the Code relates to effect of

omission to frame, or absence of, or error in, charge. Sub-section (1) thereof

provides that no finding, sentence or order of a court of competent

jurisdiction shall be deemed invalid merely on the ground that no charge was

framed or on the ground of any error, omission or irregularity in the charge

including any misjoinder of charge, unless, in the opinion of the court of

appeal, confirmation or revision, a failure of justice has in fact been

occasioned thereby. Sub-section (2) of sec. 464 provides that if the court of
7

appeal, confirmation or revision is of opinion that failure of justice has in

fact been occasioned, it may --

(a) in the case of an omission to frame a charge, order that a charge be
framed and that the trial be recommended from the point immediately after
the framing of the charge;

(b) in case of an error, omission or irregularity in the charge, direct a new
trial to be had upon a charge framed in whatever manner it thinks fit.

8. In Willie (William) Slaney vs. State of Madhya Pradesh [AIR 1956 SC

116] this court explained the concepts of "prejudice to the accused" and

"failure of justice" thus:-

"(6) Before we proceed to set out our answer and examine the
provisions of the Code, we will pause to observe that the Code is a code of
procedure and, like all procedural laws, is designed to further the ends of
justice and not to frustrate them by the introduction of endless
technicalities. The object of the Code is to ensure that an accused
person gets a full and fair trial along certain well-established and
well-understood lines that accord with our notions of natural justice.
If he does, if he is tried by a competent court, if he is told and clearly
understands the nature of the offence for which he is being tried, if
the case against him is fully and fairly explained to him and he is
afforded a full and fair opportunity of defending himself, then,
provided there is `substantial' compliance with the outward forms of
the law, mere mistakes in procedure, mere inconsequential errors and
omissions in the trial are regarded as venal by the Code and the trial
is not vitiated unless the accused can show substantial prejudice.
That, broadly speaking, is the basic principle on which the Code is
based.

(7) Now here, as in all procedural laws, certain things are regarded as
vital. Disregard of a provision of that nature is fatal to the trial and at once
invalidates the conviction. Others are not vital and whatever the
irregularity they can be cured; and in that event the conviction must stand
unless the Court is satisfied that there was prejudice. Some of these
matters are dealt with by the Code and wherever that is the case full effect
must be given to its provisions."
8

This Court then examined the question as to when a procedure adopted

could be said to have worked actual injustice to the accused and held :

"Except where there is something so vital as to cut at the root of
jurisdiction or so abhorrent to what one might term natural justice, the
matter resolves itself to a question of prejudice. Some violations of the
Code will be so obvious that they will speak for themselves as, for
example, a refusal to give the accused a hearing, a refusal to allow him to
defend himself, a refusal to explain the nature of the charge to him and so
forth.

These go to the foundations of natural justice and would be struck down as
illegal forthwith. It hardly matters whether this is because prejudice is then
patent or because it is so abhorrent to well-established notions of natural
justice that a trial of that kind is only a mockery of a trial and not of the
kind envisaged by the laws of our land because either way they would be
struck down at once.

Other violations will not be so obvious and it may be possible to show that
having regard to all that occurred no prejudice was occasioned or that
there was no reasonable probability of prejudice. In still another class of
case, the matter may be so near the border line that very slight evidence of
a reasonable possibility of prejudice would swing the balance in favour of
the accused.

... The Code is emphatic that `whatever' the irregularity it is not to be
regarded as fatal unless there is prejudice."

"It is the substance that we must seek. Courts have to administer justice
and justice includes the punishment of guilt just as much as the protection
of innocence. Neither can be done if the shadow is mistaken for the
substance and the goal is lost in a labyrinth of unsubstantial technicalities.
Broad vision is required, a nice balancing of the rights of the State and the
protection of society in general against protection from harassment to the
individual and the risks of unjust conviction.

Every reasonable presumption must be made in favour of an accused
person; he must be given the benefit of every reasonable doubt. The same
broad principles of justice and fair play must be brought to bear when
determining a matter of prejudice as in adjudging guilt. But when all is
said and done what we are concerned to see is whether the accused had a
9

fair trial, whether he knew what he was being tried for, whether the main
facts sought to be established against him were explained to him fairly and
clearly and whether he was given a full and fair chance to defend himself.

If all these elements are there and no prejudice is shown the conviction
must stand whatever the irregularities whether traceable to the charge or to
a want of one."

"In adjudging the question of prejudice the fact that the absence of a
charge, or a substantial mistake in it, is a serious lacuna will naturally
operate to the benefit of the accused and if there is any reasonable and
substantial doubt about whether he was, or was reasonably likely to have
been, misled in the circumstances of any particular case, he is as much
entitled to the benefit of it here as elsewhere; but if, on a careful
consideration of all the facts, prejudice, or a reasonable and substantial
likelihood of it, is not disclosed the conviction must stand; also it will
always be material to consider whether objection to the nature of the
charge, or a total want of one, was taken at an early stage......But these are
matters of fact which will be special to each different case and no
conclusion on these questions of fact in any one case can ever be regarded
as a precedent or a guide for a conclusion of fact in another, because the
facts can never be alike in any two cases however alike they may seem.
There is no such thing as a judicial precedent on facts though counsel, and
even judges, are sometimes prone to argue and to act as if there were."

(emphasis supplied)

In Gurbachan Singh v. State of Punjab [AIR 1957 SC 623] following Willie

Slaney, this Court held:

"......in judging a question of prejudice, as of guilt, courts must act with a
broad vision and look to the substance and not to technicalities, and their
main concern should be to see whether the accused had a fair trial,
whether he knew what he was being tried for, whether the main facts
sought to be established against him were explained to him fairly and
clearly and whether he was given a full and fair chance to defend himself."
1

In Shamnsaheb M. Multtani vs. State of Karnataka - 2001 (2) SCC 577, this

Court considered the meaning of the expression "failure of justice"

occurring in section 464 of Cr.PC. This Court held thus :

"The crux of the matter is this : Would there be occasion for a failure of
justice by adopting such a course as to convict an accused of the offence
under section 304-B IPC when all the ingredients necessary for the said
offence have come out in evidence, although he was not charged with the
said offence?

... a conviction would be valid even if there is any omission or irregularity
in the charge, provided it did not occasion a failure of justice....The
criminal court, particularly the superior court should make a close
examination to ascertain whether there was really a failure of justice or
whether it is only a camouflage.

One of the cardinal principles of natural justice is that no man should be
condemned without being heard, (audi alteram partem). But the law
reports are replete with instances of courts hesitating to approve the
contention that failure of justice had occasioned merely because a person
was not heard on a particular aspect. However, if the aspect is of such a
nature that non-explanation of it has contributed to penalizing an
individual, the court should say that since he was not given the
opportunity to explain that aspect there was failure of justice on account of
non-compliance with the principle of natural justice."

The above principles are reiterated in several decisions of this Court,

including State of West Bengal vs. Laisal Haque - AIR 1989 SC 129, State

of A.P. vs. Thakkidiram Reddy - 1998 (6) SCC 554, Dalbir Singh v. State of

UP [2004 (5) SCC 334], Dumpala Chandra Reddy vs. Nimakayala Bali

Reddy - 2008 (8) SCC 339 and Sanichar Sahni vs. State of Bihar - 2009 (7)

SCC 198.
1

9. The following principles relating to sections 212, 215 and 464 of the

Code, relevant to this case, become evident from the said enunciations:

(i) The object of framing a charge is to enable an accused to have a clear
idea of what he is being tried for and of the essential facts that he has to
meet. The charge must also contain the particulars of date, time, place and
person against whom the offence was committed, as are reasonably
sufficient to give the accused notice of the matter with which he is charged.

(ii) The accused is entitled to know with certainty and accuracy, the exact
nature of the charge against him, and unless he has such knowledge, his
defence will be prejudiced. Where an accused is charged with having
committed offence against one person but on the evidence led, he is
convicted for committing offence against another person, without a charge
being framed in respect of it, the accused will be prejudiced, resulting in a
failure of justice. But there will be no prejudice or failure of justice where
there was an error in the charge and the accused was aware of the error.
Such knowledge can be inferred from the defence, that is, if the defence of
the accused showed that he was defending himself against the real and actual
charge and not the erroneous charge.

(iii) In judging a question of prejudice, as of guilt, the courts must act with
a broad vision and look to the substance and not to the technicalities,
and their main concern should be to see whether the accused had a fair
trial, whether he knew what he was being tried for, whether the main
facts sought to be established against him were explained to him fairly
1

and clearly, and whether he was given a full and fair chance to defend
himself.

10. The respondent relied upon the decision of this court in State of

Himachal Pradesh v. Geeta Ram [2000 (7) SCC 452]. In that case the

respondent was chargesheeted for an offence under section 376 IPC and

section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989. The Magistrate committed the case to Sessions Court

which was specified as a special court under the Act. The special court

framed a charge only for an offence under section 376 IPC and after trial

convicted the respondent under section 376 IPC and sentenced him to ten

years imprisonment. The High Court set aside the conviction on the

technical ground that the trial court had no jurisdiction as it was a special

court specified in under the SC & ST (Prevention of Atrocities) Act. This

Court reversed the decision of the High Court on the ground that a special

court under the Act being a sessions court, it continued to have jurisdiction

to try the case for the offence under section 376 IPC. That matter was

considered under section 465 of the Code and not relevant on the facts of

this case.
1

11. As noticed above, in this case, the charge was that appellant

committed trespass into the house of Prakashi Devi for assaulting Prakashi

Devi, and assaulted the said Prakashi Devi and outraged her modesty. The

accused concentrated his cross-examination with reference to the said charge

and elicited answers showing that he did not assault or outrage the modesty

of Prakashi Devi. He did not try to challenge the evidence let in to show that

he had tried to outrage the modesty of Sheela Devi, as he was not charged

with such an offence. The evidence of PW-1 and PW-2 was that the

appellant did not touch or tease or abuse Prakashi Devi. Their evidence was

that he touched/caught the hand of Sheela Devi and when she raised an

alarm he ran away. When the charge was that the accused attempted to

commit trespass into the house of Prakashi Devi with intent to outrage the

modesty of Prakashi Devi, the conclusion of the appellate court and the High

Court that there was no failure of justice if he is punished for the offence of

having assaulted Sheela Devi and outraging her modesty, is opposed to

principles of fair play and natural justice embodied in sections 211, 212,

215 and 464 of the Code. When the accused is charged with having entered

the house of Prakashi Devi and assaulted the said Prakashi Devi with intent

to outrage her modesty and when the accused defended himself in regard to

the said charge and concentrated on proving that the said charges were not
1

true, he cannot be convicted for having assaulted and outraging the modesty

of someone else, namely Sheela Devi. The accused did not have any

opportunity to meet or defend himself against the charge that he assaulted

Sheela Devi and outraged her modesty. Nor did he proceed with his defence

on the understanding that he was being charged with having committed the

offence with reference to Sheela Devi. One of the fundamental principles of

justice is that an accused should know what is the charge against him so that

he can build his defence in regard to that charge. An accused cannot be

punished for committing an offence against `Y' when he is charged with

having committed the offence against `X' and the entire defence of the

accused was with reference to charge of having committed offence against

`X'.

12. The illustrations under a provision of a Statute offer relevant and

valuable indications as to meaning and object of the provision and are

helpful in the working and application of the provision. Illustration (e) under

section 215 of the Code, as contrasted from illustration (d) under that

section, throws some light on this issue. The said illustrations are extracted

below :
1

"(d) A is charged with the murder of Khoda Baksh on the 21st January,
1882. In fact, the murdered person's name was Haidar Baksh, and the date
of the murder was the 20th January, 1882. A was never charged with any
murder but one, and had heard the inquiry before the Magistrate, which
referred exclusively to the case of Haidar Baksh. The Court may infer
from these facts that A was not misled, and that the error in the charge was
immaterial.
(e) A was charged with murdering Haidar Baksh on the 20th January, 1882,
and Khoda Baksh (who tried to arrest him for that murder) on the 21 st
January, 1882. When charged for the murder of Haidar Baksh, he was
tried for the murder of Khoda Baksh. The witnesses present in his defence
were witnesses in the case of Haidar Baksh. The Court may infer from this
that A was misled, and that the error was material."

Applying the guidance offered by the said illustrations and the legal

principles evolved by this Court, the position will be as follows : If Sheela

Devi alone had been present at the house at the time of the incident and the

accused had assaulted and outraged the modesty of the said Sheela Devi, but

in the charge the name of the victim had been erroneously mentioned, say as

Sushila Devi or Prakashi Devi (though there was no person by such name),

and the inquiry exclusively referred to the assault and outraging the modesty

of Sheela Devi, the court could infer that the accused was not misled and the

error in the charge was immaterial. On the other hand, if two persons were

present in the house at the time of the incident namely Prakashi Devi and

Sheela Devi and the accused is charged with trespassing into the house of

Prakashi Devi, and assaulting and outraging the modesty of the said Prakashi

Devi, and the witnesses refer only to the assault and outraging the modesty

of Sheela Devi, the court will have to infer that the accused was prejudiced,
1

if the accused had solely concentrated and focused his defence and entire

cross-examination to show that he did not commit the offences against

Prakashi Devi.

13. The court having charged the accused with the offence of having

trespassed into the house of Prakashi Devi with intent to assault her and

having further charged him for having assaulted the said Prakashi Devi by

outraging her modesty, convicts him on the ground that though he did not

assault or outrage the modesty of Prakashi Devi, he had outraged the

modesty of Sheela Devi, that would lead to failure of justice. There was a

material error in the charge as it violated the requirement of sub-section (1)

of section 212 of the Code, that the charge shall contain particulars as to the

person against whom the offence was committed. There were two women

present at the house at the time of the alleged incident, namely Prakashi

Devi and her daughter-in-law Sheela Devi. In view of the specific charge,

the accused concentrated on showing that the charge was false. He did not

attempt to meet the case made out in the trial that the offence was against

Sheela Devi. The accused was thus clearly misled by the error in the charge

which caused prejudiced to the accused thereby occasioning failure of
1

justice. Therefore, we are of the view that there should be a new trial after

charging him with the offence of outraging the modesty of Sheela Devi.

14. The appeal is therefore allowed, the conviction of the accused is set

aside and the matter is remitted to the trial court with a direction for a new

trial after framing a charge by substituting the words "her daughter-in-law

Sheela Devi" for the words "abovenamed Prakashi Devi", in the second part

of the charge.

...........................J
(R. V. Raveendran)

.............................J
(H. L. Gokhale)
New Delhi;
September 7, 2010.

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