Complaint - Section 195(1)(b)(i) and Section 195(1)(b)(iii) of the Code of Criminal Procedure and sought punishment of the accused persons under Section 120-B of the Indian Penal Code (IPC) read with Sections 193/196/420 thereof and independently under Section 193 of the IPC.- Creating a Fake Judgment and order and getting benefits under the same - When challenged by interested persons before Apex court - Fraud played by accused came to light - Apex court order for CBI enquiry - in the meanwhile concerned High court Officer with out obtaining permission from the High court filed criminal complaint before the Magistrate of CBI court - court issued summons to the accused - one of the accused being an Advocate filed discharged petition as the complaint was not filed with permission and with out sanction - Magistrate court dismissed the same - High court allowed the appeal - Apex court held that when the complainant himself lack authority to lodge a complaint , taking cognizance of the case on invalid complaint and proceeding further does not arise due to lack of Jurisdiction and as such sanction for prosecution not necessary and further more not arised = Central Bureau of Investigation , Lucknow, U.P. …..Appellant Versus Indra Bhushan Singh & Ors. …Respondents = 2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41500

Complaint - Section  195(1)(b)(i)  and  Section 195(1)(b)(iii) of the Code of Criminal Procedure and  sought  punishment  of the accused persons under Section 120-B of the Indian Penal Code (IPC)  read with Sections 193/196/420 thereof and independently  under  Section  193  of the IPC.- Creating a Fake Judgment and order and getting benefits under the same - When challenged by interested persons before Apex court - Fraud played by accused came to light - Apex court order for CBI enquiry - in the meanwhile concerned High court Officer with out obtaining permission from the High court filed criminal complaint before the Magistrate of CBI court - court issued summons to the accused - one of the accused being an Advocate filed discharged petition as the complaint was not filed with permission and with out sanction - Magistrate court dismissed the same - High court allowed the appeal - Apex court held that when the complainant himself lack authority to lodge a complaint , taking cognizance of the case on invalid complaint and proceeding further does not arise due to lack of Jurisdiction and as such sanction for prosecution not necessary and further more not arised =

2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41500
RANJANA PRAKASH DESAI, MADAN B. LOKUR

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 876 OF 2002

Central Bureau of Investigation    , Lucknow, U.P.       …..Appellant

                                    Versus

Indra Bhushan Singh & Ors.
…Respondents

                                    With

                       CRIMINAL APPEAL NO.877 OF 2002


                               J U D G M E N T

Madan B. Lokur, J.

1.       The three questions before us are: (i) whether the complaint  filed
against the respondents under Section 195(1)(b)  of  the  Code  of  Criminal
Procedure, 1973 was authorized by the Allahabad High Court; (ii) whether  it
was necessary to obtain a sanction from the Allahabad High Court for  filing
the  complaint  against  the  respondents,  and  (iii)  if  a  sanction  was
necessary, whether it was in -fact  obtained.  In  our  opinion,  the  first
question must be answered in the  negative.  Consequently,  the  second  and
third questions do not arise or are, at best, academic in  nature  and  need
not be answered. As such, the orders under appeal call for no  interference.

The facts
2.       On 25th May, 1990 a learned Single  Judge  of  the  Allahabad  High
Court  is  said  to  have  dealt  with  Writ  Petition  No.  5267  of   1990
(purportedly filed by Dr. Sheetal Nandwani)  and  passed  an  order  to  the
effect that the competitive examinations scheduled to be held on  27th  May,
1990 for  admission  in  post-graduate  medical  courses  in  State  medical
colleges ought not to be held. Instead, admissions should  be  made  on  the
basis of marks obtained by the candidates in the MBBS  course  as  has  been
done in MDS courses. With this brief order the writ petition was allowed.
3.       In compliance with  the  order  dated  25th  May,  1990  the  State
Government  cancelled  the  scheduled  competitive  examinations  in   seven
medical colleges in Uttar Pradesh and a direction issued to grant  admission
on the basis of MBBS results.
4.       For reasons that are not relevant, the medical  college  in  Meerut
was not informed of the cancellation.  Therefore,  Dr.  Rahul  -Verma,  like
several others, participated in the examination  held  on  27th  May,  1990.
However, unlike others he filed Writ  Petition  No.  5548  of  1990  in  the
Lucknow Bench of the Allahabad  High  Court  in  which  he  sought  and  was
granted, on 4th June, 1990 the same relief as Dr. Sheetal  Nandwani  on  the
basis of the order dated 25th May, 1990. He was represented in the  case  by
his lawyer Indra Bhushan Singh. Dr. Rahul Verma is one  of  the  respondents
in Criminal  Appeal  No.877  of  2002  while  Indra  Bhushan  Singh  is  the
respondent in Criminal Appeal No.876 of 2002.
5.       The order dated 25th May, 1990 was challenged  in  this  Court  and
the result of the petition  is  reported  as  U.P.  Junior  Doctors’  Action
Committee v. Dr. B. Sheetal Nandwani and Others.[1]
6.       This Court found that no writ petition bearing  no.  5267  of  1990
was filed by Dr. Sheetal Nandwani  and  obviously  therefore  no  order  was
passed on 25th May, 1990 in the said case. It  was  found  that  the  entire
proceedings were fabricated and fake  and  this  Court  was  satisfied  that
there was deep rooted conspiracy  which  resulted  in  the  purported  order
dated 25th May, 1990. Consequently, this Court passed appropriate orders  in
the case and also directed that -the entire matter be  investigated  by  the
CBI which was required to identify the persons behind the deep rooted  fraud
and bring them to book without any delay. It was observed  that  the  purity
of the judicial  stream  should  not  be  permitted  to  be  polluted  by  a
clandestine move such as the one that was the subject matter  of  discussion
and citizens should not be misled by the actions of conspirators.
7.       Pursuant to the directions given by this Court to  investigate  the
conspiracy, the CBI searched the premises of Dr. Rahul  Verma  and  found  a
copy of  the  order  dated  25th  May,  1990.   The  CBI  also  carried  out
investigations with regard to the role of Indra Bhushan  Singh  and  others.
We were informed by  the  learned  Additional  Solicitor  General  that  the
persons responsible for the fraud leading to the order dated 25th May,  1990
have not yet been identified although about 24 years have gone by.
8.       Be that as it may, on 26th August, 1991 a complaint  was  filed  by
Shri H.D. Kandpal, Deputy Registrar (Administration),  Lucknow Bench of  the
Allahabad High Court in the Court of the Special Judicial  Magistrate  (CBI)
in Lucknow against Dr. Rahul Verma and Indra Bhushan  Singh.  The  complaint
was  filed  under  the  provisions  -of  Section  195(1)(b)(i)  and  Section
195(1)(b)(iii) of the Code of Criminal Procedure and  sought  punishment  of
the accused persons under Section 120-B of the Indian Penal Code (IPC)  read
with Sections 193/196/420 thereof and independently  under  Section  193  of
the IPC.
9.       The complaint gives the background facts leading to its filing  and
goes on to state, inter alia, that after he had  filed  the  writ  petition,
but before it was presented to the court, Dr. Rahul Verma  substituted  four
pages in the writ petition as filed.  In these pages, a  reference  is  made
to the purported order dated 25th May,  1990  and  two  of  the  pages  were
signed by Indra Bhushan Singh. During the hearing of the  writ  petition  on
4th June, 1990 a photocopy of the purported order dated 25th May,  1990  was
filed in court by Indra Bhushan Singh. On the basis of  this  writ  petition
with the interpolated or substituted pages and  the  purported  order  dated
25th May, 1990 filed during the course of hearing, a  learned  Single  Judge
of the Allahabad High Court, Lucknow Bench passed orders on 4th  June,  1990
directing the State Government to  act  in  accordance  with  the  purported
order dated 25th  May,  1990.   The  complaint  states,  however,  that  the
signature of Dr. Rahul Verma -on the vakalatnama filed along with  the  writ
petition could not be confirmed.  In  the  complaint,  it  was  prayed  that
cognizance of offences committed by Dr. Rahul Verma and Indra Bhushan  Singh
under Section 120-B read with Sections 193, 196, and  420  of  the  IPC  and
Section 193 of the IPC be taken and the accused persons, that is, Dr.  Rahul
Verma and Indra Bhushan Singh be summoned to face  trial  for  the  offences
said to have been committed by them.
10.      The complaint, as originally filed on 26th  August,  1991  did  not
mention that H.D. Kandpal had the authority to file  it  on  behalf  of  the
Allahabad High Court. But a  paragraph  was  subsequently  inserted  in  the
complaint to the effect that H.D. Kandpal had  the  authority  to  file  the
complaint on behalf of the Lucknow Bench of the Allahabad High Court.
11.      Be that as it may, the Magistrate took cognizance of the  complaint
and issued summons to Dr. Rahul Verma and Indra Bhushan Singh.
12.      At this stage, it is worth mentioning that pursuant to  the  orders
passed by this Court in the case filed by the  U.P.  Junior  Doctors  Action
Committee, the CBI submitted to this Court a  “Self  Contained  Note”  dated
27th August, 1991 under cover of a letter -dated 28th August, 1991 in  which
it was stated, inter alia, that “A statutory complaint under  provisions  of
Section 195(1)(b) of Cr. P. C. is being obtained  from  competent  authority
(sic) of Allahabad High Court for  prosecuting  Dr.  Rahul  Verma  and  I.B.
Singh Advocate.” In other words,  Kandpal  had  no  authority  to  file  the
complaint on 26th August, 1991 as claimed by him since on 28th August,  1991
the necessary sanction was “being obtained”.   It  is  on  this  basis  that
learned counsel for the accused persons submitted that a  paragraph  to  the
effect that Kandpal was authorized to file the  complaint  was  inserted  in
the complaint subsequently and illegally.
13.      Subsequent to the Magistrate taking cognizance  of  the  complaint,
Indra Bhushan Singh moved an  application  for  being  discharged  from  the
prosecution of the case.  Apart from contesting the matter  on  its  merits,
in the sense that no case was made out for proceeding  with  the  complaint,
one of the grounds taken by him was to the effect  that  the  complaint  was
filed without due authorization. By an  order  dated  2nd  April,  1999  the
Magistrate rejected the application on merits, but did  not  advert  to  the
issue regarding authorization (in favour of Kandpal) to file the  complaint.
-
This led Indra Bhushan Singh to file Criminal Case No.1875 of  1999  in  the
Allahabad High Court and that was allowed by the order  under  appeal  dated
4th February, 2000.
Decision of the High Court
14.      In the High Court, three submissions were  advanced  on  behalf  of
Indra Bhushan Singh.  It  was  contended,  firstly,  that  before  filing  a
complaint, the High Court ought to have conducted an inquiry as mandated  by
Section 340 of the Code of Criminal Procedure. The High Court, in the  order
under appeal, decided this issue in his favour  and  held  that  an  inquiry
ought to have been conducted before the complaint was filed. We  express  no
opinion on this issue and leave it open for adjudication in  an  appropriate
case. Secondly, it  was  argued  that  the  Allahabad  High  Court  had  not
authorized Kandpal to file the complaint.  In this regard, it was held:
           “A perusal of the  original  complaint  itself  shows  that  the
           complaint was once type then again at internal page  7  a  fresh
           para was added at the bottom with fresh  typewriter  with  fresh
           ribbon that the complainant is authorized to file this complaint
           on behalf of the Hon’ble High Court, Lucknow Bench, Lucknow.  On
           this typing initial has been made by  Sri  Kandpal.  Apparently,
           the complaint shows that Sri Kandpal has got some  authority  on
           behalf of High Court. The  petitioner  alleged  that  there  was
           absolutely no such authority. On  9.6.1999also,  the  petitioner
           had argued that there was no order of the High court to file the
           complaint against Indra Bhushan Singh and the -
           present argument was also advanced that there is no  such  order
           in writing on record to show any such authority.  In  the  Lower
           Court also this point was raised that there is no order  of  the
           High Court authorizing Sri Kandpal for filing such  a  complaint
           against Indra Bhushan Singh. The prosecution was granted several
           dates but record was not produced. Such a plea was also taken in
           the application for discharge dated 9.12.1995 in  para  15.  The
           entire record of the  High  Court  was  summoned  and  both  the
           counsels for the parties, namely, Sri Amarendra Nath  Singh  and
           Sri D.R. Azad went through the  entire  records  to  search  out
           whether Sri Kandpal has been authorized to file  complaint.  Sri
           Azad searched out the entire records of the case but  could  not
           find any such direction of the Court passed by  the  High  Court
           authorizing  Sri  Kandpal  to  file  the  complaint.  Thus,  the
           complaint filed by Sri Kandpal is without any authority  and  is
           to be quashed merely on this ground.”


Thirdly, it was contended on the merits of the allegations made, that  there
was no case for proceeding against  Indra  Bhushan  Singh.  The  High  Court
decided this issue also in favour of Indra Bhushan Singh.  In  our  opinion,
it is not necessary to go into the merits of the  case  since  it  is  quite
clear that the complaint deserves to be quashed  on  the  sole  ground  that
Kandpal was not authorized to file it.
15.      Following the order passed by the High Court, Dr. Rahul Verma  also
moved an application for being discharged from the  prosecution  and  by  an
order dated 7th April, 2001 the  Magistrate  accepted  the  application  and
closed the case against him. The order -
passed by the Magistrate is the subject matter of appeal in Criminal  Appeal
No.877 of 2002 and it is based on the order dated 4th February, 2000  passed
by the High Court in the case of Indra Bhushan Singh.
Proceedings in this court and conclusion
16.      Before us, learned Additional Solicitor General sought  to  contend
that it was not necessary to obtain  the  sanction  of  the  Allahabad  High
Court to prosecute Dr. Rahul  Verma  and  Indra  Bhushan  Singh.  He  placed
reliance on Iqbal Singh Marwah v.  Meenakshi  Marwah.[2]   In  our  opinion,
this question will arise only if the complaint filed by Kandpal against  Dr.
Rahul Verma and Indra Bhushan Singh was  an  authorized  complaint.  If  the
complaint was filed without any authority conferred on  Kandpal,  it  is  no
complaint at all,  and  that  would  make  the  requirement  of  a  sanction
completely irrelevant.
17.      Therefore, it is essential to first answer  the  primary  question,
that is, whether or not the complaint filed by  Kandpal  against  Dr.  Rahul
Verma and Indra Bhushan Singh was at all authorized. Realizing this  as  the
primary issue, this Court passed an order on -
28th October, 2009 to the effect that the Allahabad High Court  is  required
to be impleaded as a party respondent “for an  effective  hearing  of  these
appeals, and to do  complete  justice  between  the  parties.”  Accordingly,
notice was issued to the Allahabad High Court.
18.      In response to the notice issued by this Court, an affidavit  dated
28th January, 2010 was filed on behalf of the  Allahabad  High  Court.   The
affidavit reads as follows:-
           “I, Shamsher Chandra aged about 52 years son of Late Ram  Sundar
           Tripathi   presently   posted   as    Officer-On-Special    Duty
           (Litigation), High Court, Allahabad,  the  deponent  herein,  do
           hereby solemnly affirm and state as under:

                            1. That, the deponent is at  present  posted  as
                               Officer-On-Special  Duty  (Litigation),  High
                               Court,  Allahabad,  and  as  such  is   fully
                               conversant with the facts  and  circumstances
                               of the instant case and is competent and duly
                               authorized to swear the instant affidavit.

                            2. That, it is stated that no authorization  was
                               given by the High Court  for  filing  of  the
                               complaint dated 26.08.1991 before the Special
                               Judicial Magistrate, C.B.I., Lucknow, by  the
                               Deputy  Registrar  (Administration)  of   the
                               Lucknow Bench of the High  Court,  Allahabad.
                               As such, no record  in  relation  thereto  is
                               available or existent.

                            3. That, a fact finding enquiry in the matter of
                               the alleged authorization to the then  Deputy
                               Registrar  (Administration)  of  the  Lucknow
                               Bench  of  the  High  Court,  Allahabad   was
                               initiated by the Allahabad High Court and the
                               enquiry has now been  concluded  and  it  has
                               been reported that Sri H.D. Kandpal, the then
                               -

                            4.  Deputy  Registrar  (Administration)  of  the
                               Lucknow Bench of the High  Court,  Allahabad;
                               who had  retired  from  service  on  November
                               1992,  was  responsible   for   lodging   the
                               complaint dated 26.08.1991 before the Special
                               Judicial Magistrate, C.B.I., Lucknow  without
                               any sanction/approval of the  High  Court  of
                               Judicature at Allahabad.  A true copy of  the
                               fact finding Enquiry Report dated  14.12.2009
                               and its supplementary report dated 22.12.2009
                               of the Enquiry Officer in  the  same  enquiry
                               are being annexed herewith and is  marked  as
                               Annexure-1 (colly) to this affidavit.”

19.      It is quite clear from the affidavit filed by  the  Allahabad  High
Court that Kandpal had filed the complaint against Dr.Rahul Verma and  Indra
Bhushan Singh without any authority conferred on  him  by  the  High  Court.
This is now beyond question.
20.      Since the complaint by Kandpal was filed without any authority,  in
our opinion, the Magistrate  could  not  have  taken  cognizance  of  it  or
proceeded with the matter. He lacked the jurisdiction to do so  since  there
was no valid complaint before him.
21.      In view of the factual position as stated on  affidavit  on  behalf
of the Allahabad High Court,  the  other  questions  urged  by  the  learned
Additional Solicitor General do not arise. They  would  certainly  arise  if
the complaint had been a valid complaint, which it was not.
-
22.      Under these circumstances, in view of the categorical stand of  the
Allahabad High Court that no sanction or authorization was given to  Kandpal
to file a complaint against Dr. Rahul Verma or Indra  Bhushan  Singh,  there
is no merit in these appeals and they are accordingly dismissed.
                                                             ……………………………………J
                                               (Ranjana Prakash Desai)


                                                             ……………………………………J
                                                         (Madan B. Lokur)
New Delhi;
May 2, 2014
-----------------------
[1]

         [2] (1990) 4 SCC 633



[3]

         [4] (2005) 4 SCC 370

Commuted Death sentence to life - Apex court held that the death sentence awarded by the courts below require to be converted into life imprisonment but taking note of the diabolic manner in which the offence had been committed against a child, it is desirable that the appellant should serve minimum sentence of 30 years in jail without remission, though subject to exercise of constitutional power for clemency.= Selvam …Appellant Versus State Thr. Insp. of Police …Respondent = 2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41499

Commuted Death sentence  to life - Apex court held that the death sentence awarded by the  courts  below  require  to  be converted into life imprisonment  but  taking  note  of  the  diabolic manner in which the offence had been committed against a child, it  is desirable that the appellant should serve minimum sentence of 30 years in  jail  without   remission,   though   subject   to   exercise   of constitutional power for clemency.=

“…the root-cause for the perpetrator of the heinous  crime,  his
           thirst for lust, his loneliness in his house  and the fact  that
           the parents of the deceased gone for pilgrim and  take  days  to
           return back, though the girl goes to  school  as  usual  on  the
           fateful day also, but the above  circumstances,  which  were  so
           conducive for the accused, who is a sex hunter, took the girl to
           his house where nobody was available, raped the girl to  fulfill
           his thirst for sex and after his  fond  /desire  is  over;  fear
           crept in his mind and hence he killed the girl by attacking with
           cot-frame (M.O.2) on her head with intention  to  kill  her  and
           with knowledge that blow by M.O.2 on the head of  the  deceased,
           which is a vulnerable part of  the  body,  would  easily  caused
           death, as she being a small girl at  a  tender  age  of  9,  and
           thereby he had committed the offence of rape and murder….”


             The  court  after  weighing  the  mitigating  and   aggravating
      circumstances came to the conclusion that the act of the appellant was
       a violent, barbaric and sinful sexual attack  on  the  child  thereby
      awarding death sentence.=

As a result, we do not find any cogent reason  to  interfere  so
      far as the  findings  of  guilt  recorded  by  the  courts  below  are
      concerned.  
However, considering the facts and  circumstances  of  the
      case the death sentence awarded by the  courts  below  require  to  be
      converted into life imprisonment  but  taking  note  of  the  diabolic
      manner in which the offence had been committed against a child, it  is
      desirable that the appellant should serve minimum sentence of 30 years
      in  jail  without   remission,   though   subject   to   exercise   of
      constitutional power for clemency.
2014 ( May.Part) http://judis.nic.in/supremecourt/filename=41499
B.S. CHAUHAN, J. CHELAMESWAR, M.Y. EQBAL

IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO. 1287 of 2011


      Selvam
          …Appellant




                                   Versus


      State Thr. Insp. of Police
      …Respondent




                               J U D G M E N T


      Dr. B.S. CHAUHAN, J.


      1.    This appeal  arises  out  of  final  judgment  and  order  dated
      21.9.2010 passed by the High Court of Judicature at Madras in Referred
      Trial No. 1 of 2010 and Criminal Appeal No. 299 of 2010 confirming the
      judgment and order of death sentence dated  12.3.2010  passed  by  the
      Additional Sessions Judge, Salem in S.C.No. 198 of 2009.


      2.    The facts and circumstances arising out of this Criminal  Appeal
      are that:
      A.     Murugesan (PW.1) and his wife Indirani (PW.2) had  left  for  a
      Padayatra to Palani hills  leaving  their  daughter  Palaniammal,  the
      deceased herein, aged 9 years and studying in  fourth  standard,  with
      her grandfather Karnaiyan (PW.3).
      B.    On 12.2.2009, the deceased had left for her school at 8.30  a.m.
      after informing Valli (PW.4).  Since the deceased did not return  from
      the school as usual, Karnaiyan (PW.3) after making a search,  conveyed
      the message over the  phone  to   her  parents  Murugesan  (PW.1)  and
      Indirani (PW.2).
      C.    In early hours  of  13.2.2009,  Murugesan  (PW.1)  and  Indirani
      (PW.2) returned home and  after  making  a  search  got  registered  a
      missing complaint of her daughter.
      D.    On the same day, the accused Selvam, appellant herein,  appeared
      before Vijayan (PW.9), the Village Administrative Officer (V.A.O)  and
      made a confessional statement. Vijayan (PW.9) produced  the  appellant
      before the police and another confessional statement was  recorded  on
      the basis of which, the case of missing person was converted into  one
      under Sections 302, 376, 379  and  201  of  Indian  Penal  Code,  1860
      (hereinafter referred to as `the IPC’).    Thereafter,  the  appellant
      took Shanmugam (PW.16) I.O., Vijayan (PW.9) and Murugesan  (PW.1)  and
      got recovered the dead body of the deceased.
      E.    A Sessions Case No. 198 of  2009  was  instituted,  wherein  the
      prosecution examined 16 witnesses and relied on various  exhibits  and
      objects.   The trial court after hearing  the  parties  convicted  the
      appellant for the  charges  framed  and  awarded  death  penalty  vide
      judgment and order dated 12.3.2010.
      F.    The matter was submitted to the High Court for  confirmation  of
      death sentence under Section 366 of the Code  of  Criminal  Procedure,
      1973 (hereinafter referred to as `the Cr.P.C.’) and the appellant also
      filed an appeal against the said judgment and order.  The  High  Court
      vide its impugned  judgment  and  order  dated  21.9.2010  upheld  the
      conviction as well as the  death  sentence  awarded  by  the  Sessions
      Court.
            Hence, this appeal.


      3.    Mr. Neeraj Kumar Jain, learned senior counsel appearing for  the
      appellant has submitted that it is a case of  circumstantial  evidence
      as there is no eye-witness. The depositions made by  Marimuthu  (PW.5)
      and Amudha (PW.8) cannot be relied upon  as  their  version  is  quite
      unnatural and no evidence has been produced to corroborate the version
      given by the said witnesses, particularly, about the character of  the
      appellant given by Amudha  (PW.8).  His  wife  and  sister-in-law  who
      alleged to have been mis-behaved with by the appellant  had  not  been
      examined. More so, it was not a case where death sentence  could  have
      been awarded
      4.    Per contra, Mr. M. Yogesh Kanna, learned  standing  counsel  for
      the State of Tamil Nadu has opposed the  appeal  contending  that  the
      concurrent findings recorded by the courts below do  not  warrant  any
      interference. Considering the  rape  and  murder  of  a  9  years  old
      innocent and defenceless girl and the manner in  which  the  rape  and
      murder had been committed, the courts below had  rightly  awarded  the
      death sentence. Thus, no interference is called for.


      5.    We have heard learned counsel for the parties  and  perused  the
      record.
            Before we proceed  further  to  examine  the  case,  it  may  be
      necessary to mention the injuries found on the person  of  the  victim
      and the same are as under:
           “1.   Ant bite mark seen over the sides of clavicular region and
           lateral and upper of right side of chest and flank  and  lateral
           side of abdomen. Both sides of inner aspect of upper SRD of both
           thighs, the inner and back of left knee, bleeding  through  left
           ear. Blood stained cut fluid oozed out from both nostrils;
           2.    Contusion over  left  neck  measuring  3  cms  below  left
           mastoid process measuring 6 x 4 cms brownish in colour;
           3.    A laceration over outer aspect of the  left  ear-lobe  and
           pinnae measuring 5.5 x 2.5 x 0.26 cms;
           4.    Bluish black contusion over right  infra  scapular  region
           measuring 9 x 6 cms and measuring 3 x 2 cms over  left  scapular
           region;
           5.    Abrasion measuring 2 x 2 cm over  upper  part  of  gluteal
           region;
           6.    A contused abrasion over at the level  of  both  sides  of
           scapular region measuring 16 x 5 cms.
           7.    Laceration over right side  of  posterior  parital  region
           measuring 2.5 x 0.25 x  bone  deep  and  it  lies  4  cms  above
           occipital protrudence and 28 cms  above  the  glabilla  swelling
           with contusion over both sides of the neck;
           8.     Curved  linear  abrasion  with  contusion  over  external
           genitalia right measuring 7.5 x 0.25 cms and left side measuring
           2.25 x 2.0 cms; O/D underlying tissue is contused;
           9.    Dark reddish brown abrasion  over  labia  majora  on  both
           sides measuring 3 x 0.2 cms.”


            With respect to the  injuries,  Dr.  Panneerselvam  (PW.14)  has
      opined as under:
                 “Injuries  8  and  9  may  occur  when   having   forcible
           intercourse (with a small girl).
                 Injury 2 may occur when the neck is pressed hard.”
            In the post mortem  certificate,  PW.14  stated  that  the  said
      Palaniammal was raped forcibly, which is confirmed by injuries 8 and
      9.  As regards the absence of spermatozova, PW.14 deposed  before  the
      court that  when the spermatozova goes into the parts of a  person  it
      will start  to  destroy  after  24  hours.  After  48  hours  it  will
      completely disintegrate. If the body was in  a  decomposed  condition,
      then it could not be found whether there was any spermatozova  in  the
      parts of the body or not. PW.14 further opined that the death  of  the
      deceased was caused due to the injury on the head.


      6.    From the  statements  of  Murugesan   (PW.1),  Indirani  (PW.2),
      Karnaiyan (PW.3), Valli (PW.4) and Arumugam (PW.12), it is clear  that
      the deceased had left for the school at around 8.30 a.m. on  12.2.2009
      but did not reach the school or returned home thereafter.   Radiokaran
      (PW.7), who was well known to the accused, deposed that while  he  was
      proceeding to Chithoor, he passed through the house of  the  appellant
      and saw that the appellant was washing the  floor  of  his  house.  He
      questioned the appellant about the same  suspecting  it  to  be  blood
      smell to which the appellant responded that the dog  had  vomited  and
      hence he was cleaning the floor.  Later on, he came to know  that  the
      deceased was missing.  Marimuthu (PW.5) deposed that he had joined the
      search of the deceased girl on 12.2.2009.  At about 5.00 a.m.  on  the
      next day, he saw the appellant going on a TVS motorcycle with a  gunny
      bag but when the appellant returned after half an  hour,  he  did  not
      have any gunny bag with him.  Marimuthu  (PW.5)  identified  the  said
      motorcycle and the belongings of the deceased  girl  as  well  as  the
      deceased itself.  Vijayan  (PW.9)  has  deposed  about  the  appellant
      making an extra-judicial confession before him and  that  he  produced
      the said appellant before the IO PW.16.    He  further  deposed  about
      the appellant making a confession before the said IO on the  basis  of
      which he alongwith the police went to the house of the appellant  from
      where he got recovered a pair  of  silver  anklets  belonging  to  the
      deceased and also pointed out the TVS motorcycle. He  further  deposed
      about the appellant taking them to Onamparai Thanneer Vaikkal  Madhaka
      from where he got recovered the body of the deceased as well as  other
      belongings of the deceased  from  inside  the  gunny  bag.   Shanmugam
      (PW.16) is the IO and had  deposed  about  the  disappearance  of  the
      deceased and the subsequent  investigation  including  the  confession
      made by the appellant before him and the recoveries made thereto.


      7.    After relying on the above evidence, the trial court came to the
      following conclusion:
           ?“…the root-cause for the perpetrator of the heinous  crime,  his
           thirst for lust, his loneliness in his house  and the fact  that
           the parents of the deceased gone for pilgrim and  take  days  to
           return back, though the girl goes to  school  as  usual  on  the
           fateful day also, but the above  circumstances,  which  were  so
           conducive for the accused, who is a sex hunter, took the girl to
           his house where nobody was available, raped the girl to  fulfill
           his thirst for sex and after his  fond  /desire  is  over;  fear
           crept in his mind and hence he killed the girl by attacking with
           cot-frame (M.O.2) on her head with intention  to  kill  her  and
           with knowledge that blow by M.O.2 on the head of  the  deceased,
           which is a vulnerable part of  the  body,  would  easily  caused
           death, as she being a small girl at  a  tender  age  of  9,  and
           thereby he had committed the offence of rape and murder….”


             The  court  after  weighing  the  mitigating  and   aggravating
      circumstances came to the conclusion that the act of the appellant was
       a violent, barbaric and sinful sexual attack  on  the  child  thereby
      awarding death sentence.
      8.    On reference being made  to  the  High  Court,  the  High  Court
      carefully examined the evidence on record and came to  the  conclusion
      that the prosecution has been successful in  proving  its  case.   The
      court recorded a finding that the extra-judicial  confession  made  by
      the appellant was voluntary and made in a fit state of mind  and  that
      the appellant having come to know of the ensuing  investigation  might
      have come under a grip of fear and, therefore, would  have  rushed  to
      make a judicial confession before PW.9.  The court further came to the
      conclusion  that  the  evidence  was  marshaled   properly   and   the
      prosecution has without an iota of doubt brought home the guilt of the
      appellant.   Looking at the facts of the case and the manner in  which
      the crime was committed, the High Court held that it was  a  fit  case
      where the death  sentenced  awarded  by  the  trial  court  should  be
      affirmed.


      9.    With the assistance of learned counsel for the parties  we  have
      perused the judgments of the courts below and the evidence on record.
      In his statement under Section 313  Cr.P.C.,  the  appellant  did  not
      plead any defence whatsoever. Rather a bald statement  had  been  made
      that he had falsely been implicated and there  is  no  reason  on  the
      basis of which the evidence of Marimuthu (PW.5) could be  disbelieved.
      More so, the appellant had been seen going on the TVS motorcycle  with
      a gunny bag and came back without any gunny  bag  regarding  which  he
      made the confessional statement before  Vijayan  (PW.9),  V.A.O.,  the
      recovery had been made at his instance and the recovery witnesses  had
      been examined whose veracity could not be doubted.
           As a result, we do not find any cogent reason  to  interfere  so
      far as the  findings  of  guilt  recorded  by  the  courts  below  are
      concerned.  However, considering the facts and  circumstances  of  the
      case the death sentence awarded by the  courts  below  require  to  be
      converted into life imprisonment  but  taking  note  of  the  diabolic
      manner in which the offence had been committed against a child, it  is
      desirable that the appellant should serve minimum sentence of 30 years
      in  jail  without   remission,   though   subject   to   exercise   of
      constitutional power for clemency.


      10.    With  the  above  observations,  the  appeal  is  disposed   of
      accordingly.
                                          ….....…….……………………..J.
                                      (Dr. B.S. CHAUHAN)




                                                   .......……………………………J.
                                                   (J. CHELAMESWAR)




                                                   .......……………………………J.
                                                   (M.Y. EQBAL)
    New Delhi,
    May 2, 2014

Service matter - Assistant Teacher (Language) L.T. Grade - last date was preponed - mark list was submitted belatedly - his selection was rejected on that count - High court order to give posting from date of selection - filed appeal and obtained interim orders - Additional Director instead of following the orders of High court , reviewed the order of High court and refused to give posting - Apex court dismissed the appeal and confirmed the orders of High court = STATE OF UTTARAKHAND & ORS. .…..PETITIONERS Versus KANHAYA LAL …..RESPONDENT= 2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41497

  Service matter - Assistant Teacher  (Language)  L.T.  Grade - last date was preponed - mark list was submitted belatedly - his selection was rejected on that count - High court order to give posting from date of selection  -  filed appeal and obtained interim orders - Additional Director instead of  following the orders of High court , reviewed the order of High court and refused to give posting - Apex court dismissed the appeal and confirmed the orders of High court = 
learned  Single  Judge  had
directed by Order dated 10.3.2008 that the case  of  the  Respondent  before
us, (namely, Kanhaya Lal, the petitioner in Writ Petition No.1478  of  2003)
be considered within three months for appointment to the post  of  Assistant
Teacher (Language) L.T. Grade, if  there  is  no  other  impediment  in  his
selection (emphasis  added).    =
“he is not challenging the appointment as such but  his  only  grievance  is
that respondent cannot claim appointment from 1997”, had been recorded.=
 On a perusal of the SLP paper book, we  are  disturbed  to  note  that
pursuant to the Orders of the learned Single Judge, the Additional  Director
of Education, Garwal Division, Pohri, instead of  investigating  the  aspect
whether or not any other obstacles existed, has revisited  the  entire  case
and has virtually over-ruled the Order passed by the learned  Single  Judge.
  Having perused the Report/Order of the Additional Director  of  Education,
Pohri  dated  23.5.2008,  it  would  be  possible  to  view  his  action  as
contemptuous of the Orders of the High Court=
We  also  note  the
averment in the Special Leave Petition to the  effect  that  the  Respondent
(writ  petitioner)  already  stands  selected  and  appointed  as  Assistant
Teacher (Language) L.T. Grade  on  4.10.2005  in  Government  Inter-college,
Kamadh, Uttarakashi.  
To scotch any further misunderstanding, we direct  the
State of Uttarakhand to appoint the Respondent  to  the  post  of  Assistant
Teacher (Language) L.T. Grade, i.e. the advertised post, treating  the  writ
petitioner to have been appointed along with the other candidates  who  were
selected in response to the subject advertisement  for  appointment  to  the
post of Assistant Teacher  (Language)  L.T.  Grade.   
His  seniority  shall,
therefore, be fixed such that it is not detrimental to the services  already
rendered by him.
7      The  Special  Leave  Petition  is  wholly  devoid  of  merit  and  is
dismissed.   Interim Orders are recalled.

2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41497
DIPAK MISRA, VIKRAMAJIT SEN

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


                  SPECIAL LEAVE PETITION© No. 4495  OF 2013






STATE OF UTTARAKHAND & ORS.   .…..PETITIONERS


            Versus


KANHAYA LAL                                          …..RESPONDENT








                               J U D G M E N T






VIKRAMAJIT SEN,J.



1     By  means  of  this  Special  Leave  Petition  the  endeavour  of  the
petitioner, State of Uttarakhand, is to dislodge and  reverse  the  findings
of the learned Single Judge of the High Court of Uttarakhand at Nainital  in
Writ Petition No.1478  of  2003,  which  Order  has  been  affirmed  by  the
Division Bench of the High Court in Special Appeal No.146 of 2008.     After
going into the factual matrix of the case,  the  learned  Single  Judge  had
directed by Order dated 10.3.2008 that the case  of  the  Respondent  before
us, (namely, Kanhaya Lal, the petitioner in Writ Petition No.1478  of  2003)
be considered within three months for appointment to the post  of  Assistant
Teacher (Language) L.T. Grade, if  there  is  no  other  impediment  in  his
selection (emphasis  added).       Dissatisfied  with  this  direction,  the
Special Appeal came to be filed in which  the  Hon’ble  Division  Bench  had
opined that there was no error in the impugned Order of the  learned  Single
Judge, and, accordingly,  the  Special  Appeal  deserved  to  be  dismissed.
There are, accordingly, concurrent findings of facts and law before us.
2     On the first date of hearing before this Court, the submission of  the
learned counsel appearing for the State of Uttarakhand to  the  effect  that
“he is not challenging the appointment as such but  his  only  grievance  is
that respondent cannot claim appointment from 1997”, had been recorded.
3     On a perusal of the SLP paper book, we  are  disturbed  to  note  that
pursuant to the Orders of the learned Single Judge, the Additional  Director
of Education, Garwal Division, Pohri, instead of  investigating  the  aspect
whether or not any other obstacles existed, has revisited  the  entire  case
and has virtually over-ruled the Order passed by the learned  Single  Judge.
  Having perused the Report/Order of the Additional Director  of  Education,
Pohri  dated  23.5.2008,  it  would  be  possible  to  view  his  action  as
contemptuous of the Orders of the High Court.    The  learned  Single  Judge
had directed for appointment to the post  of  Assistant  Teacher  (Language)
L.T. Grade “unless there was some other impediment in selection”.     As  we
have already opined, the Additional Director of Education has not  disclosed
“any other  impediment”  and  instead  has  merely  reiterated  the  already
articulated case of the State, which had not  found  favour  with  the  High
Court.  It is palpably clear that  the  Additional  Director  of  Education,
Garwal Division, Pauri, has contumaciously  adorned  itself  with  appellate
powers over the decision of the learned Single  Judge  of  the  High  Court.
We shall desist from making any  further  directions,  however,  leaving  it
open to the respondent to initiate proceedings, if so advised.
4     In the impugned Order, the learned Division Bench has noted  that  the
first advertisement clearly  indicated  the  last  date  for  submission  of
Application to be 21st November, 1997, which was advanced  and  preponed  to
10th November, 1997 in  terms  of  a  “vague  corrigendum”  issued  on  24th
October, 1997.   It is trite  that  in  matters  concerning  appointment  to
Government posts, fair play and good conscience,  along  with  adherence  to
equity, are paramount  prescriptions.    In  the  case  in  hand,  the  only
infirmity in the Application of the Respondent was that  he  had  failed  to
include his Marksheet along with his Application Form, which  was  submitted
by him on 4.11.1997; he had made full compliance by  personally  filing  his
Marksheet  on  12.11.1997.    Keeping  in  perspective  the  fact   that   a
corrigendum has been issued preponing the last date of submission  of  Forms
from 21.11.1997 to 10.11.1997, it would have been advisable and  prudent  to
infuse some elasticity or laxity in the observance  of  the  last  date  for
submission of forms.    The  Respondent  is  justifiably  perturbed  by  the
situation that the last appointed candidate had 55.6 quality points  whereas
he possessed much higher merit, i.e. 58.4 quality points.
5     We do not wish to make any further observations on  the  approach  and
the conduct of the Additional Director of Education, Garwal  Region,  Pohri,
in terms of his Order dated 23.5.2008.    In this case, the writ  petitioner
is a Teacher and it is unfair to him to be repeatedly  drawn  into  fighting
futile, if not frivolous litigation  by  the  State.    It  has  become  the
practice of the State to carry on filing appeals even where  the  case  does
not deserve  it,  knowing  fully  well  that  private  respondents  will  be
physically fatigued and  economically  emasculated  in  pursuing  protracted
litigation.
6     The Order/Report of  the  Additional  Director  of  Education,  Garwal
Division, Pohri, passed on 23.5.2008 is wholly contrary  to  the  directions
given by the learned Single Judge, inasmuch  as  it  fails  to  unravel  any
“other impediment” in granting appointment  to  the  writ  petitioner  after
treating his Application to be in conformity with the subject  advertisement
as per the judgment of the  learned  Single  Judge.      We  also  note  the
averment in the Special Leave Petition to the  effect  that  the  Respondent
(writ  petitioner)  already  stands  selected  and  appointed  as  Assistant
Teacher (Language) L.T. Grade  on  4.10.2005  in  Government  Inter-college,
Kamadh, Uttarakashi.  To scotch any further misunderstanding, we direct  the
State of Uttarakhand to appoint the Respondent  to  the  post  of  Assistant
Teacher (Language) L.T. Grade, i.e. the advertised post, treating  the  writ
petitioner to have been appointed along with the other candidates  who  were
selected in response to the subject advertisement  for  appointment  to  the
post of Assistant Teacher  (Language)  L.T.  Grade.   His  seniority  shall,
therefore, be fixed such that it is not detrimental to the services  already
rendered by him.
7      The  Special  Leave  Petition  is  wholly  devoid  of  merit  and  is
dismissed.   Interim Orders are recalled.  We would have awarded  costs  but
refrain from doing so because the respondent-Kanhaya Lal has not put in  any
representation.


      ............................................J.
                                                [DIPAK MISRA]





      ............................................J.
                                                [VIKRAMAJIT SEN]
New Delhi
April 29,   2014.
-----------------------
6

Sec.72 of Income Tax - Amalgamation of four co-operative societies - accumulated losses of four societies carried forward - Set off against the profits of appellant society as per section 72 of INCOME TAX- not accepted from assessing officer to all lower tribunals - Apex court held that sec.72 apply only to company but not to society and held that a non-existent person cannot file an income tax return and therefore, cannot carry forward its losses after its existence comes to an end. All those four societies, upon their amalgamation into the appellant society,had ceased to exist and registration of those societies had been cancelled. - Dismissed the appeal = RAJASTHAN R.S.S. & GINNING MILLS FED. LTD. …APPELLANT VERSUS DY. COMMISSIONER OF INCOME TAX, JAIPUR. ....RESPONDENT = RAJASTHAN R.S.S. & GINNING MILLS FED. LTD. …APPELLANT= 2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41495

Sec.72 of Income Tax - Amalgamation of four co-operative societies - accumulated losses of four societies carried forward - Set off against the profits of  appellant society as per section 72 of INCOME TAX- not accepted from assessing officer to all lower tribunals - Apex court held that sec.72 apply only to company but not to society and held that a non-existent person  cannot  file
 an income tax return and therefore,  cannot  carry  forward  its losses after its existence comes to  an  end.   All  those  four societies, upon their amalgamation into the  appellant  society,had ceased to exist and registration of those societies had been cancelled. - Dismissed the appeal =

After the amalgamation  of
        the four co-operative societies into the appellant society when
        Income-Tax returns for the assessment years 1994-95 and  1995-96
        were filed by  the  appellant  society,  the  appellant  society
        wanted  to  get  the  accumulated  losses  of  the   aforestated
        societies, of about Rs.2,68,39,504/-, carried forward,  so  that
        the same could be set off against the profits of  the  appellant
        society under the provisions of Section 72  of  the  Income  Tax
        Act, 1961 (hereinafter referred to as ‘the Act’).


        The assessing officer negatived the appellant’s  claim  for  the
        reason that the said societies were not in existence after their
        amalgamation into the  appellant  society.   As  the  said  four
        societies were not in  existence,  according  to  the  assessing
        officer, their accumulated losses could not  have  been  carried
        forward  or  adjusted  against  the  profits  of  the  appellant
        society. Assessment orders were passed accordingly.

the  appellant  society,  being  an
        amalgamated society, must get benefit of setting off  losses  of
        the co-operative societies which had been amalgamated  into  the
        appellant society.  According to him by virtue of the provisions
        of Section 16(8) of the Rajasthan  Co-operative  Societies  Act,
        1965,  read  with  Sections  72  and  72(A)  of  the  Act,   the
        accumulated losses of the  amalgamating  societies  should  have
        been permitted to be adjusted or set off against the profits  of
        the appellant society.  His main submission was that  by  virtue
        of Section 16(8) of the Rajasthan  Co-operative  Societies  Act,
        1965  all  legal  proceedings  initiated  against  or   by   the
        amalgamating   co-operative   societies   would   continue   and
        therefore, right of the amalgamating societies  with  regard  to
        getting their losses carried forward and  set  off  against  the
        profits of the amalgamated society would continue.
    16. We are not in agreement with the submissions made by the learned
        counsel appearing for the appellant for the reason that for  the
        purpose of getting carried forward losses adjusted  or  set  off
        against the profits of subsequent years,   there  must  be  some
        provision in the Act. If there is no  provision,  the  societies
        which are not in existence cannot get any benefit.   The  losses
        were suffered by the societies which were in  existence  at  the
        relevant time and their existence or legal personality had  come
        to an end upon being amalgamated into another society.
    17. The normal principle is that a non-existent person  cannot  file
        an income tax return and therefore,  cannot  carry  forward  its
        losses after its existence comes to  an  end.   All  those  four
        societies, upon their amalgamation into the  appellant  society,
        had ceased to exist and registration of those societies had been
        cancelled.  In the circumstances, those societies had  no  right
        under the provisions of the Act to file a return  to  get  their
        earlier losses adjusted against the income of a different  legal
        personality i.e. the appellant society.
    18. So far as companies are concerned, there is a specific provision
        in the Act that upon amalgamation of one company  with  another,
        losses of the amalgamating companies can be carried forward  and
        the amalgamated company can get those losses set off against its
        profits  subject  to  the  provisions  of  the  Act.   This   is
        permissible by virtue of Section 72 A of the Act but there is no
        such provision in the case of co-operative societies.
    19. It is pertinent to note that such a provision has been made only
        with regard to amalgamation of companies and  later  on  similar
        provisions were made with regard to  banks,  etc.,  but  at  the
        relevant time there was no such provision which would permit the
        amalgamating co-operative society to carry  forward  and  adjust
        such losses against the profits of the amalgamated  co-operative
        society.

We agree with the view expressed by the High Court that as there
        is no provision under the Act for setting off accumulated losses
        of  the  amalgamating  societies  against  the  profits  of  the
        amalgamated society, the appellant society could  not  have  got
        the  benefit  of  carrying  forward  losses  of  the   erstwhile
        societies which  were  not  in  existence  during  the  relevant
        Assessment Year.
 2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41495
ANIL R. DAVE, SHIVA KIRTI SINGH
                                                    REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3880 OF 2003



RAJASTHAN R.S.S. & GINNING MILLS


FED. LTD.                                     …APPELLANT


                                VERSUS

DY. COMMISSIONER OF INCOME
TAX, JAIPUR.                                       ....RESPONDENT




                              1 J U D G M E N T



1 ANIL R. DAVE, J.



     1. Being aggrieved by the judgment  delivered  on  19th  September,
        2002 in Income Tax Appeal No.19 of 2001 by  the  High  Court  of
        Judicature of Rajasthan, Jaipur Bench,   this  appeal  has  been
        filed by the assessee, which is a  co-operative  society.   When
        the appeal was called out for hearing, none had appeared for the
        appellant co-operative society.  Upon perusal of the record,  we
        found that the learned advocate who  had  appeared  earlier  had
        become a senior counsel.  In the circumstances, we had requested
        his colleague to appear in the  matter  but  he  had  shown  his
        reluctance to appear for the appellant  society,  especially  in
        view of the fact that though more  than  two  letters  had  been
        addressed to the appellant society for  sending  vakalatnama  or
        for making appropriate arrangement for its  appearance  in  this
        Court, the appellant society had not even cared to reply to  the
        said letters.  As the appellant society is a society wherein the
        State of Rajasthan has substantial interest,  we  had  requested
        learned  advocate  Mr.  Puneet  Jain  to  assist  the  court  by
        appearing for the appellant society  and  in  pursuance  of  the
        request of this Court, he had rendered his  valuable  assistance
        by appearing for the appellant society.
     2. The facts giving rise to the present appeal in a  nut-shell  are
        as under:


        There were four co-operative societies in the State of Rajasthan
        wherein  the  Government  of  Rajasthan  had  substantial  share
        holding, namely -  (i)  Rajasthan  Co-operative  Spinning  Mills
        Ltd.; (ii)  Gangapur Co-operative  Spinning  Mills  Ltd.;  (iii)
        Ganganagar Co-operative Spinning Mills Ltd.; and (iv)  Gulabpura
        Cotton Ginning & Pressing Sahkari Samiti Ltd.  An administrative
        decision was taken by the Government of  Rajasthan to amalgamate
        all the aforestated co-operative societies into the appellant co-
        operative society, namely Rajasthan  Rajya  Sahkari  Spinning  &
        Ginning Mills Federation Ltd w.e.f. 01.01.1993.


        Upon amalgamation of  the  said  societies  into  the  appellant
        society,  the  registration  of  the  said   four   co-operative
        societies had been cancelled and all the assets and  liabilities
        of the said four societies had been taken over by the  appellant
        society  by  virtue  of  the   aforestated   amalgamation.   The
        aforestated four societies were not sound  financially and  they
        had substantial accumulative losses.  After the amalgamation  of
        the four co-operative societies into the appellant society, when
        Income-Tax returns for the assessment years 1994-95 and  1995-96
        were filed by  the  appellant  society,  the  appellant  society
        wanted  to  get  the  accumulated  losses  of  the   aforestated
        societies, of about Rs.2,68,39,504/-, carried forward,  so  that
        the same could be set off against the profits of  the  appellant
        society under the provisions of Section 72  of  the  Income  Tax
        Act, 1961 (hereinafter referred to as ‘the Act’).


        The assessing officer negatived the appellant’s  claim  for  the
        reason that the said societies were not in existence after their
        amalgamation into the  appellant  society.   As  the  said  four
        societies were not in  existence,  according  to  the  assessing
        officer, their accumulated losses could not  have  been  carried
        forward  or  adjusted  against  the  profits  of  the  appellant
        society. Assessment orders were passed accordingly.


     3. Being aggrieved by the above stated assessment  orders,  appeals
        were filed before  the  CIT  (Appeals)  and  the  CIT  (Appeals)
        dismissed the said appeals.  Further appeals were  filed  before
        the  Income  Tax  Appellate  Tribunal  but  the  Tribunal   also
        dismissed the appeals.
     4. Being aggrieved by the common order passed by the Tribunal,  the
        appellant filed Income Tax Appeal No.19 of  2001 before the High
        Court of Rajasthan and the  said  Income  Tax  Appeal  was  also
        dismissed and therefore, the appellant has approached this Court
        by way of the present appeal.
     5. The learned counsel appearing  for  the  appellant  society  had
        submitted that the assessing officer and the authorities  below,
        confirming the view taken by  the  assessing  officer,  are  not
        correct for the reason that upon amalgamation of the aforestated
        four co-operative  societies  into  the  appellant  society,  by
        virtue of the provisions of Section 16(8) of the  Rajasthan  Co-
        operative Societies Act, rights and obligations of the societies
        so amalgamated would not be  affected  and  therefore,  all  the
        rights which the societies had with regard to  carrying  forward
        of their losses would continue, and as the  said  societies  had
        been amalgamated  into  the  appellant  society,  the  appellant
        society ought to have been  permitted  to  set  off  the  losses
        suffered by the amalgamated societies.  The learned counsel  had
        relied upon Section 16(8) of  Rajasthan  Co-operative  Societies
        Act, 1965 which is reproduced hereinbelow:


              “16(8) The amalgamation, transfer or  division  made  under
              this section shall not affect any rights or obligations  of
              the societies so amalgamated, or of the society so  divided
              or  of  the  transferee,  or  render  defective  any  legal
              proceedings which might have been continued or commenced by
              or against the societies which  have  been  amalgamated  or
              divided or  the  transferee;  and  accordingly  such  legal
              proceedings may be continued or commenced by or against the
              amalgamated society, the new societies or  the  transferee,
              as the case may be.”






     6. The learned counsel had further submitted that  reading  Section
        72(1) of the  Act  with  Section  16(8)  of  the  Rajasthan  Co-
        operative Societies Act, 1965 clearly denotes that the appellant
        assessee had a right to carry forward  losses  incurred  by  the
        amalgamating societies and set off the business  losses  of  the
        said societies against the profits and gains  of  the  appellant
        society.
     7. He had further submitted that the word ‘company’ used in Section
        72(A)  of the Act should be given wide interpretation so  as  to
        include societies in the term ‘company’ because like  companies,
        societies also have a distinct legal personality and there is no
        reason for the authorities  under  the  Act  to  give  different
        treatment to co-operative societies.
     8. It had further been submitted that the appellant society  had  a
        vested right to get the accumulated losses  of  the  amalgamated
        societies adjusted against the profits of the appellant  society
        and the said vested right could not have been taken away by  the
        assessing officer. So as to substantiate his submission, he  had
        relied upon the judgment delivered in the case  of  Commissioner
        of Income Tax v. M/s. Shah Sadiq and Sons  1987(3) SCC 516.
     9. He had, therefore, submitted that  the  appeal  deserved  to  be
        allowed and the appellant society should be permitted to set off
        accumulated losses of the  amalgamating  societies  against  the
        profits of the appellant society.
    10. On the  other  hand,  the  learned  counsel  appearing  for  the
        authorities of the Income Tax Department had submitted that  the
        concurrent findings of the fact, and the views expressed by  all
        the authorities below and the High Court were absolutely correct
        and  therefore,  the  impugned  judgment  did  not  require  any
        interference.   It  had  been  submitted   by   him   that   the
        registration of the amalgamating societies  had  been  cancelled
        upon the amalgamation and as they were not in existence  at  the
        time when the appellant  society  was  assessed,  there  was  no
        question  of  carrying  forward  accumulated   losses   of   the
        amalgamating societies and adjusting them against the profits of
        the appellant society.
    11. He had drawn our attention to the provisions of Section  72  and
        72A of the Act.  He had further  submitted  that  upon  conjoint
        reading of Section 72 and 72A of the Act, it is clear  that  the
        co-operative  societies  cannot  get  the  benefit  of  carrying
        forward and setting off accumulated losses if the said societies
        were not in existence.  Only in case of a ‘company’, the benefit
        of set off could be availed by an amalgamated  company,  if  the
        amalgamating company had accumulated  losses  which  could  have
        been carried forward and adjusted against  the  profits  of  the
        amalgamated company in accordance with the  provisions  of   the
        Act.
    12. So as to  substantiate  his  submissions,  he  had  relied  upon
        judgments delivered in the case of  The Commissioner  of  Income
        Tax, Lucknow v. Sh. Madho Pd.  Jatia       1976(4)  SCC  92  and
        M/s. Baidyanath Ayurved Bhawan  (Pvt.)  Ltd.,  Jhansi   v.   The
        Excise Commissioner, U.P. and others  1971(1)  SCC  4.   He  had
        also  relied  upon  the  judgment  delivered  in  the  case   of
        Commissioner of Income Tax, Bombay v.  Maharashtra  Sugar  Mills
        Ltd.,  Bombay  1971  (3)  SCC  543.     Upon  perusal   of   the
        aforestated  judgments,  which  support  the   learned   counsel
        appearing for the Income Tax authorities, it is clear  that  the
        tax statute should be interpreted very strictly as there  is  no
        equity in tax matters and nothing can be read which  is  not  in
        the section.
    13.  Thus,  the  learned  counsel  appearing  for   the   respondent
        authorities had submitted that the impugned judgment is just and
        correct and therefore, the appeal deserved to be dismissed.
    14. We had heard the learned counsel and had  also  perused  records
        pertaining to the case and had also gone through  the  judgments
        referred to by them, and upon hearing them we are  of  the  view
        that the judgment delivered by the High Court is absolutely just
        and proper.
    15. The main submission of the learned  counsel  appearing  for  the
        appellant society was  that  the  appellant  society,  being  an
        amalgamated society, must get benefit of setting off  losses  of
        the co-operative societies which had been amalgamated  into  the
        appellant society.  According to him by virtue of the provisions
        of Section 16(8) of the Rajasthan  Co-operative  Societies  Act,
        1965,  read  with  Sections  72  and  72(A)  of  the  Act,   the
        accumulated losses of the  amalgamating  societies  should  have
        been permitted to be adjusted or set off against the profits  of
        the appellant society.  His main submission was that  by  virtue
        of Section 16(8) of the Rajasthan  Co-operative  Societies  Act,
        1965  all  legal  proceedings  initiated  against  or   by   the
        amalgamating   co-operative   societies   would   continue   and
        therefore, right of the amalgamating societies  with  regard  to
        getting their losses carried forward and  set  off  against  the
        profits of the amalgamated society would continue.
    16. We are not in agreement with the submissions made by the learned
        counsel appearing for the appellant for the reason that for  the
        purpose of getting carried forward losses adjusted  or  set  off
        against the profits of subsequent years,   there  must  be  some
        provision in the Act. If there is no  provision,  the  societies
        which are not in existence cannot get any benefit.   The  losses
        were suffered by the societies which were in  existence  at  the
        relevant time and their existence or legal personality had  come
        to an end upon being amalgamated into another society.
    17. The normal principle is that a non-existent person  cannot  file
        an income tax return and therefore,  cannot  carry  forward  its
        losses after its existence comes to  an  end.   All  those  four
        societies, upon their amalgamation into the  appellant  society,
        had ceased to exist and registration of those societies had been
        cancelled.  In the circumstances, those societies had  no  right
        under the provisions of the Act to file a return  to  get  their
        earlier losses adjusted against the income of a different  legal
        personality i.e. the appellant society.
    18. So far as companies are concerned, there is a specific provision
        in the Act that upon amalgamation of one company  with  another,
        losses of the amalgamating companies can be carried forward  and
        the amalgamated company can get those losses set off against its
        profits  subject  to  the  provisions  of  the  Act.   This   is
        permissible by virtue of Section 72 A of the Act but there is no
        such provision in the case of co-operative societies.
    19. It is pertinent to note that such a provision has been made only
        with regard to amalgamation of companies and  later  on  similar
        provisions were made with regard to  banks,  etc.,  but  at  the
        relevant time there was no such provision which would permit the
        amalgamating co-operative society to carry  forward  and  adjust
        such losses against the profits of the amalgamated  co-operative
        society.
    20. The submission made by the learned  counsel  appearing  for  the
        appellant with regard to discrimination and violation of Article
        14 of  the  Constitution  of  India  would  also  not  help  the
        appellant, as in our opinion, there is no discrimination.    The
        societies and companies belong to different classes  and  simply
        because both have a distinct legal  personality,  it  cannot  be
        said that both must be given the same treatment.
    21. We agree with the view expressed by the High Court that as there
        is no provision under the Act for setting off accumulated losses
        of  the  amalgamating  societies  against  the  profits  of  the
        amalgamated society, the appellant society could  not  have  got
        the  benefit  of  carrying  forward  losses  of  the   erstwhile
        societies which  were  not  in  existence  during  the  relevant
        Assessment Year.
    22. We are also of the view that in all the tax matters one  has  to
        interpret taxation statute strictly. Simply because one class of
        legal entities are given  some  benefit  which  is  specifically
        stated in the Act does not mean  that  the  legal  entities  not
        referred to in the Act would also  get  the  same  benefit.   As
        stated by this Court on several occasions, there is no equity in
        matters of taxation. One cannot read into a  section  which  has
        not been specifically provided for  and  therefore,  we  do  not
        agree with the submissions of the learned counsel appearing  for
        the appellant and we are not prepared to read something  in  the
        section which has not been provided for.  The judgments referred
        to hereinabove support the view which we have expressed here.

  23.   For the reasons stated hereinabove, the appeal is dismissed with no
                             order as to costs.

                                 …………………………….,J.
                                                 (Anil R. Dave)


                                                       …………………………….,J.
                                        (Shiva Kirti Singh)


New Delhi;
April 29, 2014




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