Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 373 OF 2013
(Arising out of S.L.P. (Crl.) No. 3962 of 2012)
K.S. Panduranga ... Appellant
Versus
State of Karnataka ... Respondent
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. The appellant was convicted for the offences
punishable under Sections 7, 13(1)(d) read with
Section 13(2) of the Prevention of Corruption Act,
1988 (for short “the Act”) by the learned Special
Judge, Bangalore, and sentenced to undergo one
year rigorous imprisonment and to pay a fine of
Rs.10,000/-, in default, to suffer a further rigorous
imprisonment for two months on the first score andPage 2
four years rigorous imprisonment and to pay a fine of
Rs.15,000/- and on failure to pay fine to suffer further
rigorous imprisonment for three months on the
second count, with the stipulation that both the
sentences shall be concurrent.
3. In appeal, the High Court of Karnataka by the
impugned judgment, confirmed the conviction, but
reduced the sentence to two years’ rigorous
imprisonment from four years as far as the
imposition of sentence for the offence under Section
13(1)(d) read with Section 13(2) of the Act is
concerned and maintained the sentence in respect of
the offence under Section 7 of the Act.
4. The accusations which led to the trial of the accusedappellant are that H.R. Prakash, PW-1, the owner of
Prakash Transport, was having a contract for the
transport of transformers belonging to Karnataka
Vidyuth Karkhane (KAVIKA), Bangalore, and the said
agreement was for the period 15.9.2000 to
14.9.2001. Under the said agreement, the
transporter was required to transport transformers
2Page 3
from Bangalore to various places all over Karnataka.
Despite the agreement for transportation, three
months prior to the lodgment of the complaint, the
transport operator did not get adequate transport
work. The appellant, who was working as
Superintendent of KAVIKA, Bangalore, was incharge
of the dispatch department and, therefore, PW-1
approached him. At that juncture, a demand of
Rs.10,000/- was made as illegal gratification to give
him more transport loads. The accused-appellant
categorically told PW-1 that unless the amount was
paid, no load could be allotted to his company.
Eventually, a bargain was struck for payment of
Rs.5,000/- to get the load. As PW-1 was not
interested in giving the bribe amount to the accused,
he approached the Lokayukta and lodged a
complaint as per Exht. P-1 which was registered as
Criminal Case No. 9 of 2001. The investigating
agency of Lokayukta, after completing the
formalities, got a trap conducted. During the trap, a
sum of Rs.5,000/- was recovered from the custody of
3Page 4
the accused. After completion of all the formalities,
sanction order was obtained from the competent
authority and charge sheet was placed before the
competent court for the offences punishable under
Sections 7 and 13(1)(d) read with Section 13(2) of
the Act.
5. The accused persons pleaded innocence and took the
plea of false implication.
6. The prosecution, in order to substantiate the
allegations against the accused, examined PWs 1 to
6 and marked the documents, Exhts. P-1 to P-12, and
brought on record MOs-1 to 12. The defence, in
order to establish its stand, examined a singular
witness, DW-1.
7. The learned trial Judge posed three questions,
namely, (i) whether the sanction order obtained to
prosecute the accused was valid and proper; (ii)
whether the prosecution had been able to prove that
the accused had demanded and accepted the illegal
gratification of Rs.5,000/- as a motive or reward for
4Page 5
the purpose of showing an official favour to the
complainant, i.e., allotting transport loads and
thereby committed the offence under Section 7 of
the Act; and (iii) whether the prosecution had proven
that the accused, by means of corrupt and illegal
means, abused his position and obtained a pecuniary
advantage in the sum of Rs.5,000/-, as a result of
which he committed an offence punishable under
Section 13(1)(d) read with Section 13(2) of the Act.
The learned Special Judge, analyzing the evidence on
record, answered all the questions in the affirmative
and came to hold that the prosecution had been able
to bring home the charge and, accordingly, recorded
the conviction and imposed the sentence as
mentioned earlier.
8. On appeal being preferred, the High Court confirmed
the conviction and the sentence on the foundation
that the recovery, demand and acceptance of illegal
gratification had been established to the hilt.
9. We have heard Mr. S.N. Bhat, learned counsel for the
appellant. None has represented the State.
5Page 6
10. The first plank of submission of the learned counsel
for the appellant is that the High Court could not
have heard the appeal in the absence of the counsel
for the accused and proceeded to deliver the
judgment. It is urged by him that though at a later
stage, the counsel appeared and put forth his
contention, yet the fundamental defect in proceeding
to deal with the appeal vitiates the verdict. To
bolster the said submission, he has commended us to
the decision in Mohd. Sukur Ali v. State of
Assam1
. In the said case, the Division Bench held as
follows: -
“5. We are of the opinion that even
assuming that the counsel for the accused
does not appear because of the counsel's
negligence or deliberately, even then the
court should not decide a criminal case
against the accused in the absence of his
counsel since an accused in a criminal
case should not suffer for the fault of his
counsel and in such a situation the court
should appoint another counsel as amicus
curiae to defend the accused. This is
because liberty of a person is the most
important feature of our Constitution.
Article 21 which guarantees protection of
life and personal liberty is the most
important fundamental right of the
fundamental rights guaranteed by the
1
(2011) 4 SCC 729
6Page 7
Constitution. Article 21 can be said to be
the “heart and soul” of the fundamental
rights.”
After so stating, the Bench relied upon the decision of
the US Supreme Court in Powell v. Alabama2
which was
cited with approval by this Court in A.S. Mohammed
Rafi v. State of Tamil Nadu3
. Reference was also made
to Man Singh and another v. State of Madhya
Pradesh4
and Bapu Limbaji Kamble v. State of
Maharashtra5
. Eventually, the Bench held as follows: -
“The Founding Fathers of our Constitution
were themselves freedom fighters who had
seen civil liberties of our people trampled
under foreign rule, and who had
themselves been incarcerated for long
period under the formula “Na vakeel, na
daleel, na appeal” (No lawyer, no hearing,
no appeal). Many of them were lawyers by
profession, and knew the importance of
counsel, particularly in criminal cases. It
was for this reason that they provided for
assistance by counsel under Article 22(1),
and that provision must be given the
widest construction to effectuate the
intention of the Founding Fathers.”
After so holding, the learned Judges set aside the
impugned judgment of the High Court and remitted the
2
77 L Ed 158 : 287 US 45 (1932)
3
(2011) 1 SCC 688
4
(2008) 9 SCC 542
5
(2005) 11 SCC 413
7Page 8
matter to take a fresh decision after hearing the learned
counsel for the appellant in the High Court whose name
was not shown in the cause list and the name of the
former counsel was shown. We may hasten to clarify
whether in the said case the matter should have been
remitted or not is presently not the concern. The question
is whether the ratio laid down by the Division Bench that
even if the counsel for the accused does not appear
because of his negligence or deliberately, then the court
should not decide the case against the accused in the
absence of his counsel as he should not suffer for the fault
of the counsel.
11. At this stage, we think it appropriate to refer to the
decisions which have been relied on by the Division
Bench. In Bapu Limbaji Kamble (supra), the High
Court had convicted the appellant under Section 302
of the IPC on the charge of murdering his wife by
strangulating her to death. At the time of hearing of
the appeal, the counsel for the accused did not
appear. The High Court perused the evidence and
8Page 9
decided the matter. In that context, this Court stated
thus:-
“We are of the view that the High Court
should have appointed another advocate
as amicus curiae before proceeding to
dispose of the appeal. We say so especially
for the reason that there are arguable
points in the appeal such as the delay in
giving the report to the police, the material
discrepancy between the version in the FIR
and the deposition of PW 4 and the nondisclosure by PW 3 of the alleged
confession made by the accused after PW
4 came to the house. The question
whether there is clinching circumstantial
evidence to convict the appellant also
deserves fuller consideration. Without
expressing any view on the merits of the
case, we set aside the impugned order of
the High Court and remand the matter for
fresh disposal by the High Court
expeditiously, after nominating an amicus
to assist the Court.”
12. From the aforesaid passage, it is demonstrable that
this Court has not stated as a principle that whenever
the counsel does not appear, the court has no other
option but to appoint an amicus curiae and,
thereafter, proceed with the case. What has been
stated above is that as there were arguable points in
appeal and further whether there was clinching
9Page 10
circumstantial evidence to convict the appellant or
not, deserved a fuller consideration and in that
backdrop, the Court directed for nominating an
amicus to assist the Court. On a fair reading of the
aforesaid passage, it is quite clear that the direction
was issued in the special circumstances of the case.
13. In Man Singh and another (supra), the learned
single Judge of the High Court had dismissed the
appeal preferred by the appellant who had called in
question the legal propriety of his conviction for the
offence punishable under Section 8/18(b) of the
Narcotic Drugs and Psychotropic Substances Act,
1985 and such other offences. This Court observed
that when the appeal was called, the counsel who
was appointed through the Legal Aid Committee did
not appear and the learned single Judge heard the
matter with the assistance of the learned panel
lawyer for the respondent State. It was contended
before this Court that the High Court should not have
dismissed the appeal without engaging another
counsel or at least without appointing an amicus
10Page 11
curiae. Resisting the said contention, it was
contended by the State that the High Court analysed
the relevant evidence including the evidence of the
two relevant witnesses and, hence, no fault could be
found with the judgment. The two-Judge Bench, after
recording the said stand and stance, opined thus: -
“5. We need not deal with the merits of
the case as we find that the learned
counsel appointed by the Legal Aid
Committee did not appear on the date
fixed before the High Court. The High
Court could have in such circumstances
required the Legal Aid Committee to
appoint another counsel. Considering the
seriousness of the offence, it would have
been appropriate for the High Court to do
so.”
14. On a careful reading of the decision in its entirety
and what has been aforestated, it is vivid that it has
not been laid down as a ratio that in each
circumstance, the High Court should appoint a
counsel failing which the judgment rendered by it
would be liable to be set aside.
15. In A.S. Mohammed Rafi v. State of Tamil Nadu
(supra), the Division Bench, after referring to
11Page 12
Article 22(1), the dictum in Powell (supra) and
Anastaplo, In re6
, the immortal words authored by
Thomas Erskine (1750-1823) “The Rights of Man”,
the Sixth Amendment of the US Constitution, the
Biography of Clarence Darrow, i.e, Attorney for the
Damned, Harper Lee’s famous novel To Kill a
Mocking Bird and Chapter II of the Rules framed by
the Bar Council of India, opined thus: -
“24. Professional ethics require that a
lawyer cannot refuse a brief, provided a
client is willing to pay his fee, and the
lawyer is not otherwise engaged. Hence,
the action of any Bar Association in
passing such a resolution that none of its
members will appear for a particular
accused, whether on the ground that he is
a policeman or on the ground that he is a
suspected terrorist, rapist, mass murderer,
etc. is against all norms of the
Constitution, the statute and professional
ethics. It is against the great traditions of
the Bar which has always stood up for
defending persons accused for a crime.
Such a resolution is, in fact, a disgrace to
the legal community. We declare that all
such resolutions of Bar Associations in
India are null and void and the rightminded lawyers should ignore and defy
such resolutions if they want democracy
and rule of law to be upheld in this
country. It is the duty of a lawyer to defend
no matter what the consequences, and a
6
6 L Ed 2d 135 : 366 US 82 (1961)
12Page 13
lawyer who refuses to do so is not
following the message of The Gita.”
Be it noted, in the said case, the Bar Association of
Coimbatore had passed a resolution that no member of
the Coimbatore Bar Association would defend the accused
policemen in criminal case against them in the said case.
16. Prior to that, the Division Bench has quoted the
observations of Sutherland, J. (pp. 170-171) from
Powell case (supra) that deals with the fate of an
accused who is not given the assistance of a counsel.
The relevant part is reproduced below: -
“The right to be heard would be, in many
cases, of little avail if it did not
comprehend the right to be heard by
counsel. Even the intelligent and educated
layman has small and sometimes no skill in
the science of law. If charged with crime,
he is incapable, generally, of determining
for himself whether the indictment is good
or bad. He is unfamiliar with the rules of
evidence. Left without the aid of counsel
he may be put on trial without a proper
charge, and convicted upon incompetent
evidence, or evidence irrelevant to the
issue or otherwise inadmissible. He lacks
both the skill and knowledge adequately to
prepare his defense, even though he have
a perfect one. He requires the guiding
hand of counsel at every step in the
proceedings against him. Without it,
13Page 14
though he be not guilty, he faces the
danger of conviction because he does not
know how to establish his innocence.”
17. We have referred to the said judgment in extenso as
it has been stated in Mohd. Sukur Ali (supra) that
the said passage has been quoted with approval in
A.S. Mohammed Rafi (supra).
18. On a studied perusal of the said decision, it is
noticeable that the Court has stated about the role of
the lawyer and the role of the Bar Association in the
backdrop of professional ethics and norms of the
Constitution. It has been categorically held therein
that the professional ethics require that a lawyer
cannot refuse a brief, provided a client is willing to
pay his fee and the lawyer is not otherwise engaged
and, therefore, no Bar Association can pass a
resolution to the effect that none of its members will
appear for a particular accused whether on the
ground that he is a policeman or on the ground that
he is a suspected terrorist. We are disposed to think
that in Mohd. Sukur Ali (supra), the aforesaid case
was cited only to highlight the role of the Bar and the
14Page 15
ethicality of the lawyers. It does not flow from the
said pronouncement that it is obligatory on the part
of the Appellate Court in all circumstances to engage
amicus curiae in a criminal appeal to argue on behalf
of the accused failing which the judgment rendered
by the High Court would be absolutely unsustainable.
19. At this juncture, it is apt to survey the earlier
decisions of this Court in the field. In Shyam Deo
Pandey and others v. The State of Bihar7
, a twoJudge Bench of this Court was dealing with a criminal
appeal which had arisen from the order of the High
Court whereby the High Court, on perusal of the
judgment under appeal, had dismissed the criminal
appeal challenging the conviction. The Court
referred to Section 423 of the Old Code and came to
hold that the criminal appeal could not be dismissed
for default of appearance of the appellants or their
counsel. The Court has either to adjourn the hearing
of the appeal or it should consider the appeal on
merits and pass final orders. It is further observed
7
AIR 1971 SC 1606
15Page 16
that the consideration of the appeal on merits at the
stage of final hearing and to arrive at a decision on
merits and pass final orders will not be possible
unless the reasoning and findings recorded in the
judgment under appeal is tested in the light of the
record of the case. The Court referred to the earlier
Section 421 of the Code which dealt with dismissal of
an appeal summarily and was different from an
appeal that had been admitted and required to be
dealt with under Section 423 of the Code. It is worth
noting that reliance was placed on Challappa
Ramaswami v. State of Maharashtra8
wherein
reliance was placed on Siddanna Apparao Patil v.
State of Maharashtra9
and Govinda Kadtuji
Kadam v. The State of Maharashtra10
.
20. In Ram Naresh Yadav and others v. State of
Bihar11, a different note was struck by expressing
the view in the following terms: -
“It is no doubt true that if counsel do not
appear when criminal appeals are called
8
AIR 1971 SC 64
9
AIR 1970 SC 977
10 AIR 1970 SC 1033
11 AIR 1987 SC 1500
16Page 17
out it would hamper the working of the
court and create a serious problem for the
court. And if this happens often the
working of the court would become well
nigh impossible. We are fully conscious of
this dimension of the matter but in criminal
matters the convicts must be heard before
their mattes are decided on merits. The
court can dismiss the appeal for nonprosecution and enforce discipline or refer
the matter to the Bar Council with this end
in view. But the matter can be disposed of
on merits only after hearing the appellant
or his counsel. The court might as well
appoint a counsel at State cost to argue on
behalf of the appellants.”
21. In Bani Singh and others v. State of U.P.12, a
three-Judge Bench was called upon to decide whether
the High Court was justified in dismissing the appeal
filed by the accused-appellants therein against the
order of conviction and sentence issued by the trial
court for non-prosecution. The High Court had
referred to the pronouncement in Ram Naresh
Yadav (supra) and passed the order. The threeJudge Bench referred to the scheme of the Code,
especially, the relevant provisions, namely, Section
384 and opined that since the High Court had already
admitted the appeal following the procedure laid
12 AIR 1996 SC 2439
17Page 18
down in Section 385 of the Code, Section 384 which
enables the High Court to summarily dismiss the
appeal was not applicable. The view expressed in
Sham Deo’s case (supra) was approved with slight
clarification but the judgment in Ram Naresh
Yadav’s case (supra) was over-ruled. The threeJudge Bench proceeded to lay down as follows: -
“.....It is the duty of the appellant and his
lawyer to remain present on the appointed
day, time and place when the appeal is
posted for hearing. This is the
requirement of the Code on a plain reading
of Ss. 385-386 of the Code. The law does
not enjoin that the Court shall adjourn the
case if both the appellant and his lawyer
are absent. If the Court does so as a
matter of prudence or indulgence, it is a
different matter, but it is not bound to
adjourn the matter. It can dispose of the
appeal after perusing the record and the
judgment of the trial Court. We would,
however, hasten to add that if the accused
is in jail and cannot, on his own, come to
Court, it would be advisable to adjourn the
case and fix another date to facilitate the
appearance of the accused-appellant if his
lawyer is not present. If the lawyer is
absent, and the Court deems it appropriate
to appoint a lawyer at State expense to
assist it, there is nothing in the law to
preclude it from doing so. We are,
therefore, of the opinion and we say so
with respect, that the Division Bench which
decided Ram Naresh Yadav’s case (AIR
1987 SC 1500) did not apply the provisions
18Page 19
of Ss. 385-386 of the Code correctly when
it indicated that the Appellate Court was
under an obligation to adjourn the case to
another date if the appellant or his lawyer
remained absent.
16. Such a view can bring about a
stalemate situation. The appellant and his
lawyer can remain absent with impunity,
not once but again and again till the Court
issues a warrant for the appellant’s
presence. A complaint to the Bar Council
against the lawyer for non-appearance
cannot result in the progress of the appeal.
If another lawyer is appointed at State
cost, he too would need the presence of
the appellant for instructions and that
would place the court in the same
situation. Such a procedure can,
therefore, prove cumbersome and can
promote indiscipline. Even if a case is
decided on merits in the absence of the
appellant, the higher Court can remedy the
situation if there has been a failure of
justice. This would apply equally if the
accused is the respondent for the obvious
reason that if the appeal cannot be
disposed of without hearing the
respondent or his lawyer, the progress of
the appeal would be halted.”
(Emphasis supplied)
22. From the aforesaid decision, the principles that can
be culled out are (i) that the High Court cannot
dismiss an appeal for non-prosecution simpliciter
without examining the merits; (ii) that the court is not
bound to adjourn the matter if both the appellant or
19Page 20
his counsel/lawyer are absent; (iii) that the court
may, as a matter of prudence or indulgence, adjourn
the matter but it is not bound to do so; (iv) that it can
dispose of the appeal after perusing the record and
judgment of the trial court; (v) that if the accused is
in jail and cannot, on his own, come to court, it would
be advisable to adjourn the case and fix another date
to facilitate the appearance of the accused-appellant
if his lawyer is not present, and if the lawyer is
absent and the court deems it appropriate to appoint
a lawyer at the State expense to assist it, nothing in
law would preclude the court from doing so; and (vi)
that if the case is decided on merits in the absence of
the appellant, the higher court can remedy the
situation.
23. In Bapu Limbaju Kamble (supra), and Man Singh
(supra), this Court has not laid down as a principle
that it is absolutely impermissible on the part of the
High Court to advert to merits in a criminal appeal in
the absence of the counsel for the appellant. We
have already stated that the pronouncement in A.S.
20Page 21
Mohammed Rafi (supra), dealt with a different
situation altogether and, in fact, emphasis was on the
professional ethics, counsel’s duty, a lawyer’s
obligation to accept the brief and the role of the Bar
Associations. The principle laid down in Sham Deo
Pandey (supra), relying on Siddanna Apparao
Patil (supra), was slightly modified in Bani Singh
(supra). The two-Judge Bench in Mohd. Sukur Ali
(supra), had not noticed the binding precedent in
Bani Singh (supra).
24. In Union of India and another v. Raghubir Singh
(Dead) by LRs etc.13
, the question arose with
regard to the effect of the law pronounced by the
Division Bench in relation to a case relating to the
same point subsequently before a Division Bench or
a smaller number of Judges. Answering the said
issue, the Constitution Bench has ruled thus: -
“It is in order to guard against the
possibility of inconsistent decisions on
points of law by different Division Benches
that the Rule has been evolved, in order to
promote consistency and certainty in the
development of the law and its
13 (1989) 2 SCC 754
21Page 22
contemporary status, that the statement of
the law by a Division Bench is considered
binding on a Division Bench of the same or
lesser number of Judges. This principle has
been followed in India by several
generations of Judges. We may refer to a
few of the recent cases on the point. In
John Martin v. State of West Bengal14, a
Division Bench of three-Judges found it
right to follow the law declared in
Haradhan Saha v. State of West Bengal15
,
decided by a Division Bench of five Judges,
in preference to Bhut Nath Mate v. State of
West Bengal16 decided by a Division Bench
of two Judges. Again in Indira Nehru
Gandhi v. Raj Narain17, Beg, J. held that the
Constitution Bench of five Judges was
bound by the Constitution Bench of
thirteen Judges in Kesavananda Bharati v.
State of Kerala18. In Ganapati Sitaram
Balvalkar v. Waman Shripad Mage19, this
Court expressly stated that the view taken
on a point of law by a Division Bench of
four Judges of this Court was binding on a
Division Bench of three-Judges of the
Court. And in Mattulal v. Radhe Lal20, this
Court specifically observed that where the
view expressed by two different Division
Benches of this Court could not be
reconciled, the pronouncement of a
Division Bench of a larger number of
Judges had to be preferred over the
decision of a Division Bench of a smaller
number of Judges. This Court also laid
down in Acharya Maharajshri
Narandraprasadji Anandprasadji Maharaj v.
14 (1975) 3 SCC 836
15 (1975) 3 SCC 198
16 (1974) 1 SCC 645
17 1975 Supp SCC 1
18 (1973) 4 SCC 225
19 (1981) 4 SCC 143
20 (1974) 2 SCC 365
22Page 23
State of Gujarat21 that even where the
strength of two differing Division Benches
consisted of the same number of Judges, it
was not open to one Division Bench to
decide the correctness or otherwise of the
views of the other. The principle was
reaffirmed in Union of India v. Godfrey
Philips India Ltd.22
”
25. In N.S. Giri v. Corporation of City of Mangalore
and others23, while taking note of the decision in
LIC of India v. D.J. Bahadur24 in the context of
binding precedent under Article 141, the learned
Judges observed thus: -
“.....suffice it to observe that the
Constitution Bench decision in New
Maneck Chowk Spg. and Wvg. Co. Ltd. v.
Textile Labour Assn.25 and also the decision
of this Court in Hindustan Times Ltd. v.
Workmen26 which is a four-Judge Bench
decision, were not placed before the
learned Judges deciding LIC of India case.
A decision by the Constitution Bench and a
decision by a Bench of more strength
cannot be overlooked to treat a later
decision by a Bench of lesser strength as
of a binding authority; more so, when the
attention of the Judges deciding the latter
case was not invited to the earlier
decisions available.”
21 (1975) 1 SCC 11
22 (1985) 4 SCC 369
23 (1999) 4 SCC 697
24 (1981) 1 SCC 315
25 AIR 1961 SC 867
26 AIR 1963 SC 1332
23Page 24
26. Another Constitution Bench in Pradip Chandra
Parija and others v. Pramod Chandra Patnaik
and others27 has laid down that judicial discipline
and propriety demands that a Bench of two learned
Judges should follow a decision of a Bench of three
learned Judges. But if a Bench of two learned Judges
concludes that an earlier judgment of three learned
Judges is so very incorrect that in no circumstances
can it be followed, the proper course for it to adopt is
to refer the matter before it to a Bench of three
learned Judges setting out, the reasons why it could
not agree with the earlier judgment.
27. In Chandra Prakash and others v. State of U.P.
and another28
, the Constitution Bench referred to
the view expressed in Raghubir Singh’s case and
Parija’s case and opined that in Parija’s case it
has been held that judicial discipline and propriety
demanded a Bench of two learned Judges to follow
the decision of a Bench of three learned Judges.
27 (2002) 1 SCC 1
28 (2002) 4 SCC 234
24Page 25
28. Recently, in Rattiram and others v. State of
Madhya Pradesh29, the three-Judge Bench, referring
to the decision in Indian Oil Corporation Ltd. v.
Municipal Corporation and another30 wherein a
two-Judge Bench had the occasion to deal with the
concept of precedent, stated as follows: -
“27. In Indian Oil Corpn. Ltd. v. Municipal
Corpn. the Division Bench of the High
Court had come to the conclusion that
Municipal Corpn., Indore v. Ratnaprabha31
was not a binding precedent in view of the
later decisions of the co-equal Bench of
this Court in Dewan Daulat Rai Kapoor v.
New Delhi Municipal Committee32 and
Balbir Singh v. MCD33. It is worth noting
that the Division Bench of the High Court
proceeded that the decision in
Ratnaprabha was no longer good law and
binding on it. The matter was referred to
the Full Bench which overruled the
decision passed by the Division Bench.
When the matter travelled to this Court, it
observed thus: (Indian Oil Corpn. Ltd. case,
SCC p. 100, para 8)
“8. … The Division Bench of the High
Court in Municipal Corpn., Indore v.
Ratnaprabha Dhanda34 was clearly in
error in taking the view that the
decision of this Court in Ratnaprabha
was not binding on it. In doing so, the
Division Bench of the High Court did
29 (2012) 4 SCC 516
30 AIR 1995 SC 1480
31 (1976) 4 SCC 622
32 (1980) 1 SCC 685
33 (1985) 1 SCC 167
34 1989 MPLJ 20
25Page 26
something which even a later coequal Bench of this Court did not and
could not do.”
29. Regard being had to the principles pertaining to
binding precedent, there is no trace of doubt that the
principle laid down in Mohd. Sukur Ali (supra) by
the learned Judges that the court should not decide a
criminal case in the absence of the counsel of the
accused as an accused in a criminal case should not
suffer for the fault of his counsel and the court
should, in such a situation, must appoint another
counsel as amicus curiae to defend the accused and
further if the counsel does not appear deliberately,
even then the court should not decide the appeal on
merit is not in accord with the pronouncement by the
larger Bench in Bani Singh (supra). It, in fact, is in
direct conflict with the ratio laid down in Bani Singh
(supra). As far as the observation to the effect that
the court should have appointed amicus curiae is in a
different realm. It is one thing to say that the court
should have appointed an amicus curiae and it is
another thing to say that the court cannot decide a
26Page 27
criminal appeal in the absence of a counsel for the
accused and that too even if he deliberately does not
appear or shows a negligent attitude in putting his
appearance to argue the matter. With great respect,
we are disposed to think, had the decision in Bani
Singh (supra) been brought to the notice of the
learned Judges, the view would have been different.
30. Presently, we shall proceed to deal with the concept
of per incuriam. In A.R. Antulay v. R.S. Nayak35
,
Sabyasachi Mukharji, J. (as His Lordship then was),
while dealing with the said concept, had observed
thus: -
“42. … ‘Per incuriam’ are those decisions
given in ignorance or forgetfulness of some
inconsistent statutory provision or of some
authority binding on the court concerned,
so that in such cases some part of the
decision or some step in the reasoning on
which it is based, is found, on that account
to be demonstrably wrong.”
31. Again, in the said decision, at a later stage, the Court
observed: -
35 (1988) 2 SCC 602
27Page 28
“47. ... It is a settled rule that if a decision
has been given per incuriam the court can
ignore it.”
32. In Punjab Land Development & Reclamation
Corpn. Ltd. v. Labour Court36
, another Constitution
Bench, while dealing with the issue of per incuriam,
opined as under:
“40. The Latin expression ‘per incuriam’
means through inadvertence. A decision
can be said generally to be given per
incuriam when this Court has acted in
ignorance of a previous decision of its own
or when a High Court has acted in
ignorance of a decision of this Court.”
33. In State of U.P. v. Synthetics and Chemicals
Ltd.
37
, a two-Judge Bench adverted in detail to the
aspect of per incuriam and proceeded to highlight as
follows:
“40. ‘Incuria’ literally means
‘carelessness’. In practice per incuriam
appears to mean per ignoratium. English
courts have developed this principle in
relaxation of the rule of stare decisis. The
‘quotable in law’ is avoided and ignored if
it is rendered, ‘in ignoratium of a statute or
other binding authority’. (Young v. Bristol
Aeroplane Co. Ltd.38) Same has been
accepted, approved and adopted by this
Court while interpreting Article 141 of the
36 (1990) 3 SCC 682
37 (1991) 4 SCC 139
38 (1944) 2 All ER 293 (CA)
28Page 29
Constitution which embodies the doctrine
of precedents as a matter of law.”
34. In Siddharam Satlingappa Mhetre v. State of
Maharashtra39, while addressing the issue of per
incuriam, a two-Judge Bench, after referring to the
dictum in Bristol Aeroplane Co. Ltd. (supra) and
certain passages from Halsbury’s Laws of England
and Raghubir Singh (supra), has stated thus:
“138. The analysis of English and Indian
Law clearly leads to the irresistible
conclusion that not only the judgment of a
larger strength is binding on a judgment of
smaller strength but the judgment of a coequal strength is also binding on a Bench
of Judges of co-equal strength. In the
instant case, judgments mentioned in
paras 124 and 125 are by two or three
Judges of this Court. These judgments
have clearly ignored the Constitution
Bench judgment of this Court in Sibbia
case40 which has comprehensively dealt
with all the facets of anticipatory bail
enumerated under Section 438 of the Code
of Criminal Procedure. Consequently, the
judgments mentioned in paras 124 and
125 of this judgment are per incuriam.”
35. In Government of A.P. and another v. B.
Satyanarayana Rao (dead) by LRs and others41
39 (2011) 1 SCC 694
40 (1980) 2 SCC 565
41 (2000) 4 SCC 262
29Page 30
this Court has observed that the rule of per incuriam
can be applied where a court omits to consider a
binding precedent of the same court or the superior
court rendered on the same issue or where a court
omits to consider any statute while deciding that
issue.
36. In view of the aforesaid annunciation of law, it can
safely be concluded that the dictum in Mohd. Sukur
Ali (supra) to the effect that the court cannot decide
a criminal appeal in the absence of counsel for the
accused and that too if the counsel does not appear
deliberately or shows negligence in appearing, being
contrary to the ratio laid down by the larger Bench in
Bani Singh (supra), is per incuriam. We may hasten
to clarify that barring the said aspect, we do not
intend to say anything on the said judgment as far as
engagement of amicus curiae or the decision
rendered regard being had to the obtaining factual
matrix therein or the role of the Bar Association or
the lawyers. Thus, the contention of the learned
counsel for the appellant that the High Court should
30Page 31
not have decided the appeal on its merits without the
presence of the counsel does not deserve
acceptance. That apart, it is noticeable that after the
judgment was dictated in open court, the counsel
appeared and he was allowed to put forth his
submissions and the same have been dealt with.
37. At this juncture, we are obligated to state that in
certain cases this Court had remitted the matters to
the High Court for fresh hearing and in certain cases
the burden has been taken by this Court. If we allow
ourselves to say so, it depends upon the facts of the
each case. In the present case, as we perceive, the
High Court has dealt with all the contentions raised in
the memorandum of appeal and heard the learned
counsel at a later stage and, hence, we think it
apposite to advert to the contentions raised by the
learned counsel for the appellant as regards the
merits of the case.
38. On merits it has been argued by Mr. Bhat that the
essential ingredients of Section 7 of the Act have not
established inasmuch as no official work was pending
31Page 32
with the accused-appellant and the allotment work
was done by the Manager and, hence, he could not
have shown any official favour. It has also been
contended that mere recovery of bribed money from
the possession of the accused is not sufficient to
establish the offence and it is the duty of the
prosecution to prove the demand and acceptance of
money as illegal gratification but the same has not
been proven at all.
39. To appreciate the said submission, we have carefully
perused the judgment of the learned trial Judge as
well as that of the High Court and the evidence
brought on record. On a perusal of the Mahazar
(Exht.-4), it is evident that a sum of Rs.5,000/- was
recovered from the accused. That apart, the factum
of recovery has really not been disputed. The plea
put forth by the defence is that the accused had
borrowed Rs.20,000/- from the complainant and to
pay it back he had availed a loan from DW-1, an auto
driver. In support of the said stand on behalf of the
accused, DW-1, an auto-driver, has been examined,
32Page 33
who has deposed that the accused needed
Rs.20,000/- to pay back a loan to PW-1 and he had
given the said sum to him in his house and,
thereafter, had accompanied the accused to his
office and PW-1 was taken to a side by the accused
where he gave the money to him. The said witness
has stated that he had not known for what purpose
the accused had given the money to PW-1. He had
not even produced any document in support of his
deposition that he had given Rs.20,000/- to the
accused as a loan. It is interesting to note that the
said witness, to make his story credible, has also
gone to the extent of stating that he had
accompanied the accused to his office where the
accused took PW-1 to one side of the room and paid
the money. The testimony of this witness has to be
discarded as it is obvious that he has put forth a
concocted and totally improbable version. The
learned Sessions Judge as well as the High Court is
correct in holding that the testimony of this witness
does not inspire confidence and we accept the same.
33Page 34
40. The next limb of the said submission is that the
accused was not in-charge of allotment of work and,
hence, could not have granted any benefit to the
complainant and the allegation of the prosecution
that he had shown an official favour to the
complainant has no legs to stand upon. On a
scrutiny of the testimony of PW-2, it is demonstrable
that there had been demand of money from PW-2
and acceptance of the same. As far as the official
favour is concerned, though the allotment of work
was done by the Manager, it has come out in the
evidence of PW-4 that the immediate assignment of
the loads of contractors was the responsibility of the
accused. He had the responsibility for assignment of
loads and in that connection, he had demanded the
bribe. It has also come out from Exht. P-11 that the
responsibility of the accused was assignment or
identification of lorries. In view of the said evidence,
it is difficult to accept the plea that he had no
responsibility and, hence, he could not have granted
any favour. It is well settled in law that demand and
34Page 35
acceptance of the amount as illegal gratification is
sine qua non for constitution of an offence under the
Act and it is obligatory on the part of the prosecution
to establish that there was an illegal offer of bribe
and acceptance thereof.
41. Keeping in view that the demand and acceptance of
the amount as illegal gratification is a condition
precedent for constituting an offence under the Act,
it is to be noted that there is a statutory presumption
under Section 20 of the Act which can be dislodged
by the accused by bringing on record some evidence,
either direct or circumstantial, that money was
accepted other than for the motive or the reward as
stipulated under Section 7 of the Act. When some
explanation is offered, the court is obliged to
consider the explanation under Section 20 of the Act
and the consideration of the explanation has to be on
the touchstone of preponderance of probability. It is
not to be proven beyond all reasonable doubt. In the
case at hand, we are disposed to think that the
explanation offered by the accused does not deserve
35Page 36
any acceptance and, accordingly, we find that the
finding recorded on that score by the learned trial
Judge and the stamp of approval given to the same
by the High Court cannot be faulted.
42. In view of the aforesaid analysis, we find that the
prosecution has established the factum of recovery
and has also proven the demand and acceptance of
the amount as illegal gratification. Therefore, the
conviction recorded against the accused is
unimpeachable. The said conclusion is in
consonance with pronouncement of this Court in
State of Maharahstra v. Dnyaneshwar Laxaman
Rao Wankhede42
.
43. The alternative submission of the learned counsel for
the appellant relates to sentence. It is his submission
that the appellant has been suffering from number of
ailments and there has been immense tragedy in his
family life and, hence, the sentence should be
reduced to the period already undergone. As is
evincible, the appellant has been convicted under
42 (2009) 15 SCC 200
36Page 37
Section 7 of the Act and sentenced to undergo
rigorous imprisonment for a period of four years and
to pay a fine of Rs.15,000/- and on failure to pay fine,
to suffer further rigorous imprisonment for three
months.
Section 7 of the Act provides a punishment
with imprisonment which shall not be less than six
months which may extend to five years and liability
to pay fine. Section 13(2) stipulates that a public
servant who commits criminal misconduct shall be
punishable with imprisonment for a term which shall
not be less than one year but which may extend to
seven years and shall also be liable to pay fine. On
reading of both the provisions, it is clear that
minimum sentence is provided for the aforesaid
offence. There is a purpose behind providing the
minimum sentence. It has been held in Narendra
Champaklal Trivedi v. State of Gujarat43 that
where the minimum sentence is provided, it is not
appropriate to exercise jurisdiction under Article 142
of the Constitution of India to reduce the sentence on
the ground of any mitigating factor as that would
43 (2012) 7 SCC 80
37Page 38
tantamount to supplanting the statutory mandate
and further it would amount to ignoring the
substantive statutory provision that prescribes
minimum sentence for a criminal act relating to
demand and acceptance of bribe.
44. In view of the aforesaid analysis, we are unable to
accept the submission of the learned counsel for the
appellant to reduce the period of sentence to the
period already undergone in custody.
However,
regard being had to the facts and circumstances of
the case, the age of the accused and the ailments he
has been suffering, which has been highlighted
before us, we reduce the sentence of imprisonment
imposed under Section 13(1)(d) read with Section
13(2) of the Act to one year and maintain the
sentence under Section 7 of the Act. The imposition
of sentence of fine on both the scores remains
undisturbed.
45. With the aforesaid modification in the sentence, the
appeal stands disposed of.
38Page 39
……………………………….J.
[K. S. Radhakrishnan]
……………………………….J.
[Dipak Misra]
New Delhi;
March 01, 2013
39
