LAW FOR ALL

Friday, February 13, 2015

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.=The facts in the case of Thermax Ltd. (supra) were quite different and there was a clear situation showing that the complainant was trying to circumvent period of limitation for moving the Civil Court, by filing a delayed criminal case. On behalf of accused persons reliance has also been placed upon judgment in the case of M.N. Ojha & Ors. v. Alok Kumar Srivastav & Anr. (2009) 9 SCC 682. In that case a complaint filed against the appellants who were bank officials was quashed because the Court found that it was a counter-blast to action taken by them in their official capacity for realizing the loan amount due from the complainant. On facts of that case, it was easy to hold that the complaint was clearly an abuse of judicial process and it was also found that averments and allegations in complaint did not disclose commission of any offence by appellants. The Magistrate had failed to apply his mind to the case of the appellants and the High Court had erred in not even adverting to the basic facts. The factual situation in the present case is quite otherwise. Reliance was also placed on behalf of respondents upon judgment in the case of State of Karnataka v. Muniswamy & Ors. (1977) 2 SCC 699. In that case, the accused persons pleaded for discharge before the Sessions Court which was not accepted but the High Court quashed the proceedings on the ground that there was no material on the record on the basis of which any tribunal could reasonably come to the conclusion that the accused were in any manner connected with the incident leading to the prosecution. This Court agreed with the views of the High Court on the basis of peculiar facts of that case showing lack of any data or material which could create a reasonable likelihood of conviction for any offence in connection with attempted murder of the complainant. That judgment also is of no help to the respondents herein in the light of allegations made in the complaint, the statement of the complainant on solemn affirmation and the CID Report of investigation on which the complainant placed reliance and which was perused by the learned Magistrate. These appeals are therefore allowed, the judgment and order under appeal passed by the High Court is set aside. We also set aside the orders passed by the learned Sessions Court dated 30.11.2011 whereby summoning order was set aside in respect of accused nos.6 to 8 and accused no.9. In other words, the order of summoning passed by learned Magistrate dated 02.05.2011 is restored.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 285-287 OF 2015
[Arising out of S.L.P.(Crl.)Nos.300-302 of 2013]

Sonu Gupta .....Appellant

Versus

Deepak Gupta & Ors. .....Respondents

J U D G M E N T

SHIVA KIRTI SINGH, J.

Leave granted.
The parties have been heard in detail and they have also filed written
submissions. Appellant is wife of respondent no.1 and is complainant in
Criminal Complaint No.1213/2011 before Court of Judicial Magistrate, First
Class, Raipur. The respondents are accused in this Complaint Case which
was filed on 07.12.2010 for alleged offences under Section 464, 468 and 471
of the Indian Penal Code (IPC).
The appellant and respondent no.1 are undergoing a protracted matrimonial
dispute. It is the case of appellant as well as respondent no.1 that they
were married in February 1997. A girl child was born to the appellant in
May 1998 and in 2001 the appellant gave informations on various dates to
several police authorities regarding alleged torture and harassment
inflicted on her by respondent nos.1 to 8 for dowry as well as for giving
birth to a girl child. It is appellant's case that in April 2001 itself
there was pressure by the common relatives and friends leading to appellant
withdrawing her allegations against respondent no.1 who in turn withdrew
Divorce Petition No.496/2000 and the same was dismissed as withdrawn by
order of Additional District Judge, Delhi dated 30th April 2001. The
differences between the spouses got settled amicably in April-May 2001.
The appellant gave birth to another girl child in August 2002 much to the
dislike of accused persons.
The substance of the accusation in the instant complaint case is that
anticipating legal action by the appellant against renewed mental torture
and harassment by the respondent no.1 and his other relations named as
accused, as a stratagem and outcome of a conspiracy, one of her earlier
letters of complaint to some police officials which had been withdrawn by
the appellant in April-May 2001, was changed and tampered as per
convenience and a photocopy of such undated complaint making out a weak
case against the respondents which was bound to fail, was got registered at
the instance of the accused persons themselves with the help of some police
officials as Criminal Case (FIR No.73/2002) on 06.10.2002 in the Mahila
Thana, Raipur by the Town Inspector of this Thana under pressure of accused
no.9, Additional Director General of Police, PHQ, Raipur. According to the
complaint petition, the appellant informed the concerned court that the FIR
No.73/2002 was neither filed by her nor signed by her and this FIR
facilitated her husband and his relations who were accused to obtain
anticipatory bail not only in FIR No.73/2002 but also in the case genuinely
filed by the appellant against accused nos.1 to 8 under Sections 498A and
406, IPC in Women's Cell, Kirti Nagar, Delhi registered as Complaint
No.372/2004 on 15.06.2004. The appellant was also surprised to receive in
July 2003 a notice of Divorce Petition filed by respondent no.1 in a Delhi
court on 19.5.2003. The appellant approached various authorities and tried
to get an investigation into her allegations that FIR No.73/2002 was
fraudulently registered to benefit the accused nos.1 to 8 and the appellant
had no role in registering the same. Ultimately, even after a CID
investigation in favour of appellant's case, when no action was taken
against the culprits and no copy of the CID report was made available to
the appellant, she filed a Writ Petition No.1488/2005 before the High Court
of Chhattisgarh at Bilaspur seeking the record of investigation report of
CID and registration of a criminal case against the accused as well as
investigation by CBI. In terms of directions of the High Court issued
while disposing of the writ petition on 24.06.2010, the appellant was
provided with copy of the CID investigation report and was also permitted
to inspect the entire connected record. Thereafter appellant could find
that the Station House Officer of Mahila Thana, Raipur as well as accused
no.9, Additional Director General of Police, PHQ, Raipur also had played a
role in fraudulent registration of FIR No.73/2002 and hence she filed the
instant criminal complaint before the Court of Judicial Magistrate, First
Class, Raipur on 07.12.2010.
The learned Judicial Magistrate recorded the statement of the appellant and
also called for record of CID investigation in the matter of FIR No.73/2002
for the purpose of perusal and evaluation. On receipt of the record, the
learned Judicial Magistrate passed a speaking order on 02.05.2011 whereby
he issued summons against accused nos.1 to 9 after finding a prima facie
case on the basis of complaint petition, statement of complainant
(appellant) as well as records of CID investigation on which the
complainant had placed reliance. Accused nos.1 to 8 preferred one set of
criminal revision and accused no.9 preferred another criminal revision
before the Sessions Court at Raipur. By two separate orders passed on same
date, i.e., 30.11.2011, the Sessions Court upheld the summoning order in
respect of accused nos.1 to 5 but set it aside in respect of accused nos.6
to 8 and accused no.9. Against these two orders the appellant preferred
criminal revision petitions whereas accused nos.1 to 5 also preferred a
Criminal Miscellaneous Petition bearing No.45/2012 before the High Court.
The High Court, by common judgment and order dated 07.09.2012 which is
under appeal, dismissed both the criminal revision petitions preferred by
the appellant against grant of relief to accused nos.6 to 9 and allowed
criminal miscellaneous petition of accused nos.1 to 5 by setting aside the
summoning order of the Magistrate and directing the appellant to appear
before the Court of Judicial Magistrate for adducing further evidence, if
any, to support her allegation in the complaint petition. The High Court
thus remitted back the matter with various observations requiring the
appellant to produce alleged documents which could prove forgery and also
to send the same to expert for examination of the document and signature of
the complainant/appellant.
Considering the stage at which the criminal complaint is pending and the
nature of proposed order, this Court would not like to express any definite
opinion on the merits of the allegations made in the complaint petition or
upon the defence taken by the accused persons before the courts below or in
this Court lest it prejudices one or the other party in future.
Having considered the details of allegations made in the complaint
petition, the statement of the complainant on solemn affirmation as well as
materials on which the appellant placed reliance which were called for by
the learned Magistrate, the learned Magistrate, in our considered opinion,
committed no error in summoning the accused persons. At the stage of
cognizance and summoning the Magistrate is required to apply his judicial
mind only with a view to take cognizance of the offence, or, in other
words, to find out whether prima facie case has been made out for summoning
the accused persons. At this stage, the learned Magistrate is not required
to consider the defence version or materials or arguments nor he is
required to evaluate the merits of the materials or evidence of the
complainant, because the Magistrate must not undertake the exercise to find
out at this stage whether the materials will lead to conviction or not.
It is also well settled that cognizance is taken of the offence and not the
offender. Hence at the stage of framing of charge an individual accused
may seek discharge if he or she can show that the materials are absolutely
insufficient for framing of charge against that particular accused. But
such exercise is required only at a later stage, as indicated above and not
at the stage of taking cognizance and summoning the accused on the basis of
prima facie case. Even at the stage of framing of charge, the sufficiency
of materials for the purpose of conviction is not the requirement and a
prayer for discharge can be allowed only if the court finds that the
materials are wholly insufficient for the purpose of trial. It is also a
settled proposition of law that even when there are materials raising
strong suspicion against an accused, the court will be justified in
rejecting a prayer for discharge and in granting an opportunity to the
prosecution to bring on record the entire evidence in accordance with law
so that case of both the sides may be considered appropriately on
conclusion of trial.
Learned senior advocate for the appellant Mr. Aman Lekhi has relied upon a
catena of judgments such as :-
Bhim Lal Shah vs. Bisa Singh & Ors. [17 CWN 290];
State of Orissa & Anr. vs. Saroj Kumar Sahoo [(2005) 13 SCC 540];

Riyasat Ali vs. State of U.P. [1992 Crl.L.J. 1217];
Nupur Talwar vs. Central Bureau of Investigation & Anr. [(2012) 11 SCC
465];

Amit Kapoor vs. Ramesh Chander & Anr. [(2012) 9 SCC 460];

Asmathunnisa vs. State of Andhra Pradesh & Anr. [(2011) 11 SCC 259];

MEDCHL Chemicals & Pharma (P) Ltd. vs. Biological E. Ltd. & Ors. [(2000) 3
SCC 269];

State of Uttar Pradesh vs. Paras Nath Singh [(2009) 6 SCC 372];

B. Saha & Ors. vs. M.S. Kochar [(1979) 4 SCC 177];
Matajog Dobey vs. H.C. Bhari [AIR 1956 SC 44];
P.K. Pradhan vs. State of Sikkim [(2001) 6 SCC 704].

These need no discussion because settled propositions of law reiterated
therein have already been noticed earlier.
In the present case, on going through the order of the learned Magistrate,
we are satisfied that the same suffers from no illegality. The specific
case of the appellant that FIR was registered on an undated photocopy of a
petition attributed to the appellant but not bearing her original signature
could not have been rejected by the learned Magistrate at the present stage
especially in view of the report of investigation by the CID which was also
called for and there being no dispute that the FIR No.73/2002 was
registered only on the basis of a photocopy on which the signature is not
in original and hence in our considered view the Hon'ble High Court grossly
erred in exercise of its jurisdiction by directing the
appellant/complainant to lead further evidence and produce the original
documents to show forgery. If the FIR is admittedly on the basis of only a
photocopy of a document allegedly brought into existence by the accused
persons, the High Court erred in directing the appellant to produce the
original and get the signatures compared.
In our considered view, the High Court fell into error of evaluating the
merits of the defence case and other submissions advanced on behalf of the
accused which were not appropriate for consideration at the stage of taking
cognizance and issuing summons.
Learned advocate for the accused persons, Mr. D.N. Goburdhan has placed
reliance upon judgment in the case of Pepsi Foods Ltd. & Anr. v. Special
Judicial Magistrate & Ors. (1998) 5 SCC 749 to highlight that summoning of
an accused is a serious matter and, therefore, the order of the Magistrate
must reflect that he has applied his mind to the facts of the case and the
relevant law, as highlighted in paragraph 28 of the Report. In that case
emphasis was laid upon power available with the High Court either under
Articles 226 and 227 of the Constitution or under Section 482 of the
Cr.P.C. to quash a criminal proceeding even at initial stage to prevent the
abuse of process of law by the inferior courts. But this Court cautioned
that since the powers conferred on the High Court under aforesaid
provisions have no limits, hence more/due care and caution is required
while invoking these powers. In paragraph 29 it was emphasized that the
accused can approach the High Court "to have the proceeding quashed against
him when the complaint does not make out any case against him". The facts
in the present case are otherwise and required the High Court to exercise
more caution in view of clear allegations in the complaint petition. The
High Court erred in evaluating the merit of evidence for interfering with a
summoning order. Learned counsel also placed reliance upon judgments in
the case of State of Haryana & Ors. v. Bhajan Lal & Ors. 1992 Supp. (1)
SCC 335 and also in the case of Thermax Ltd. & Ors. v. K.M. Johny & Ors.
(2011) 13 SCC 412 in support of the proposition that power to quash
criminal prosecution is justified where a criminal proceeding is instituted
with malafide or ulterior motives. In the case of Bhajan Lal (supra) this
Court did indicate in para 102, seven kinds of cases where court may
exercise power to quash criminal prosecution but in respect of the 7th
category relating to malafide, this Court used the expression - "manifestly
attended with malafide" and further explained in paragraphs 103 and 104
that the power of quashing should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases. Paragraphs 103
and 104 are reproduced hereunder :

"103. We also give a note of caution to the effect that the power of
quashing a criminal proceeding should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases; that the court
will not be justified in embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in the FIR or the
complaint and that the extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to its whim or
caprice.

104. It may be true, as repeatedly pointed out by Mr. Parasaran, that in a
given situation, false and vexatious charges of corruption and venality may
be maliciously attributed against any person holding a high office and
enjoying a respectable status thereby sullying his character, injuring his
reputation and exposing him to social ridicule with a view to spite him on
account of some personal rancour, predilections and past prejudices of the
complainant. In such a piquant situation, the question is what would be
the remedy that would redress the grievance of the verily affected party?
The answer would be that the person who dishonestly makes such false
allegations is liable to be proceeded against under the relevant provisions
of the Indian Penal Code - namely under Section 182 or 211 or 500 besides
becoming liable to be sued for damages."

The facts in the case of Thermax Ltd. (supra) were quite different and
there was a clear situation showing that the complainant was trying to
circumvent period of limitation for moving the Civil Court, by filing a
delayed criminal case.
On behalf of accused persons reliance has also been placed upon judgment in
the case of M.N. Ojha & Ors. v. Alok Kumar Srivastav & Anr. (2009) 9 SCC
682. In that case a complaint filed against the appellants who were bank
officials was quashed because the Court found that it was a counter-blast
to action taken by them in their official capacity for realizing the loan
amount due from the complainant. On facts of that case, it was easy to
hold that the complaint was clearly an abuse of judicial process and it was
also found that averments and allegations in complaint did not disclose
commission of any offence by appellants. The Magistrate had failed to
apply his mind to the case of the appellants and the High Court had erred
in not even adverting to the basic facts. The factual situation in the
present case is quite otherwise. Reliance was also placed on behalf of
respondents upon judgment in the case of State of Karnataka v. Muniswamy &
Ors. (1977) 2 SCC 699. In that case, the accused persons pleaded for
discharge before the Sessions Court which was not accepted but the High
Court quashed the proceedings on the ground that there was no material on
the record on the basis of which any tribunal could reasonably come to the
conclusion that the accused were in any manner connected with the incident
leading to the prosecution. This Court agreed with the views of the High
Court on the basis of peculiar facts of that case showing lack of any data
or material which could create a reasonable likelihood of conviction for
any offence in connection with attempted murder of the complainant. That
judgment also is of no help to the respondents herein in the light of
allegations made in the complaint, the statement of the complainant on
solemn affirmation and the CID Report of investigation on which the
complainant placed reliance and which was perused by the learned
Magistrate.
These appeals are therefore allowed, the judgment and order under appeal
passed by the High Court is set aside. We also set aside the orders passed
by the learned Sessions Court dated 30.11.2011 whereby summoning order was
set aside in respect of accused nos.6 to 8 and accused no.9. In other
words, the order of summoning passed by learned Magistrate dated 02.05.2011
is restored. Before parting with the order we make it clear that any
observations in this order shall not prejudice the case of either of the
parties before the court below and the criminal complaint case of the
appellant must proceed on its own merits strictly in accordance with law.
Although we have set aside the order granting relief to accused nos.6 to 9
by the Sessions Court, in the interest of justice, we direct that in the
facts of the case accused nos.6 to 9 shall be granted benefit of bail by
the learned Magistrate if they appear within 10 weeks and apply for same.
The Magistrate shall of course be at liberty to set reasonable conditions
for such grant.

..................................J.
[ANIL R. DAVE ]

..................................J.
[KURIAN JOSEPH]

..................................J.
[SHIVA KIRTI SINGH]
New Delhi.
February 11, 2015.
-----------------------
14

Wednesday, February 11, 2015

It is the case of the defense that the deceased would have tried to commit suicide by consuming poison and when she was apprehensive whether she would die or not, she set fire to herself. Assuming, without conceding, that Smt. Prema had committed suicide, then under Section 113A of the Indian evidence Act, onus is shifted on the accused to dislodge the presumption of having committed abetment of suicide by a married woman. Unlike as in Section 304- B where the court "shall presume" dowry death, when the prosecution has established the ingredients, under Section 113A of the Evidence Act, discretion has been conferred upon the Court wherein it has been provided that the Court may presume abetment of suicide. Therefore the onus lies on the accused to rebut the presumption, and in case of Section 113-B of the Evidence Act relatable to Section 304B of IPC, the onus to prove shifts exclusively and heavily on the accused as held in Bansilal v. State of Haryana (2011) 11 SCC 359.The circumstantial evidence leads to the guilt of the accused persons, as the prosecution has proved that the accused had the opportunity to administer the poison and the doctors in the medical examination have also reported that the deceased was a healthy woman who, along with her family, was trying to reconcile matters with the accused persons. The fact that the death occurred in the house of the accused persons, leads to their guilt. They have not discharged the onus of disproving the presumptions under Sections 113A and 113B. Thus, the question of suicide is ruled out. The Court in this case is obliged to take the presumption raised under Section 113B of the Evidence Act.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2146 OF 2009

BHIM SINGH & ANR. ... APPELLANTS

:Versus:

STATE OF UTTARAKHAND ...RESPONDENT

J U D G M E N T

Pinaki Chandra Ghose, J.:

This appeal, by special leave, has been filed against the judgment and
order dated 23.03.2009 passed by the High Court of Uttarakhand at Nainital
in Criminal Appeal No.1706 of 2001 whereby the High Court while acquitting
the two co-accused (appellant Nos.2 & 3 herein), upheld the conviction and
sentence of appellant Nos.1 & 2 herein, as awarded by learned Special Judge
(CBI)/Additional Sessions Judge, Nainital, and dismissed their appeal. The
learned Special Judge (CBI)/Additional Sessions Judge, Nainital, by its
judgment and order dated 25.04.2000 passed in Sessions Trial No.36 of 1998
convicted appellant Nos.1 & 2 herein under Section 304-B of IPC and
sentenced them to imprisonment for life, and further convicted all the
appellants under Section 498-A IPC and sentenced them to rigorous
imprisonment for one year and a fine of Rs.500/- to each of them. All the
appellants were also convicted under Sections 3 & 4 of the Dowry
Prohibition Act, 1961 and sentenced each of them to three months' simple
imprisonment and fine.

The facts leading to this appeal are that one Bhim Singh S/o of Govind
Singh, resident of Village Naliana in District Nainital got married to
Prema Devi (deceased) on 4.5.1997. Appellants Nos.2 & 3, namely Aan Singh
and Nain Singh are brothers of Bhim Singh and Appellant No.4, namely Janki
Devi is the wife of Aan Singh (appellant No.2 herein). Prema Devi died
unnatural death in her in-laws' house on 26.9.1997. Soon after the death of
Prema Devi, Pushpa Joshi, Village Pradhan of Jeolikot made a complaint
telephonically to Sub-Divisional Magistrate about the unnatural death of
Prema Devi. Upon receiving this information, the Magistrate along with Sub-
Inspector Shiv Singh Gusain (PW-7) reached the village and took the dead
body in their possession and an inquest report was prepared on the same
day. Post-mortem examination of the deceased was conducted on the same day
at about 4.55 p.m. by Dr. D.K. Joshi (PW-5) and one Dr. H.C. Bhatt who
prepared the Autopsy Report. Post-mortem report reveals that there were 90%
burn injuries on the body of the deceased. Since the cause of death was not
ascertained by the medical officers, therefore, vicera was preserved for
chemical examination.

First Information Report was lodged on 27.9.1997 at around 1830 Hrs., at
Police Station Jyolikot, Police Station Tallital, District Nainital by one
Sri. Birbal Singh Sambhal, inter alia, stating that the marriage of his
sister Smt. Prema Devi was solemnized with Bhim Singh son of Govind Singh,
in the month of May, 1997 in Village Jyolikot, Nainital. The elder brother
of Bhim Singh, namely Aan Singh played the role of mediator in finalizing
the marriage. Several items were given in the aforesaid marriage. FIR
states that Prema Devi, complainant's sister, told him that when she went
to the house of her in-laws after marriage, her husband Bhim Singh, Aan
Singh, Nain Singh, all sons of Govind Singh and Smt. Janki Devi wife of
Aan Singh, used to taunt and torture her by saying that she had brought
nothing in dowry. When she narrated these events to her parents they
persuaded Prema and told her to adjust with her family and live with them
cordially. Father of the complainant however convinced Prema that he would
himself talk to her in-laws and settle things. They went to the house of
the in-laws of Prema and tried their best to persuade them, but instead of
settling matters, they exhorted to taunting. Consequently, Prema was
advised to adjust herself to the situation. Thereafter when she came to her
parents' house on the occasion of Rakhi, she told them that Bhim Singh,
Aan Singh, Nain Singh and Janki Devi are repeatedly taunting and torturing
her. She further told that the elder brother, Aan Singh threatened to
insult her before the entire village and pressurised her for getting
clothes and other items from her parents' house. On 27.9.1997 the
complainant received information that his sister had died due to burning.
Upon receiving this information, they immediately went to the house of
Prema's in-laws and they found her dead. She was completely burnt. They
were told that she had set herself on fire.

Investigation was done by Bimla Gunjyal, Deputy Superintendent of Police
(PW-6) and after the investigation was complete, charge-sheet against all
the four accused persons was filed before the Chief Judicial Magistrate
and the case was committed to the Sessions Court for trial.

The Trial Court on finding that the prosecution has succeeded in proving
the guilt of the appellants, convicted them for offences under Section 498-
A of IPC and sentenced them to undergo rigorous imprisonment for three
years each with a fine of Rs.500/-, and in the event of default in payment
of fine, further simple imprisonment for fifteen days each. Accused Bhim
Singh and Aan Singh (appellants Nos.1 & 2 herein) were also held guilty of
offence 304-B of IPC and both of them were sentenced to undergo rigorous
imprisonment for life. Appellants were also convicted for the offences
under Sections 3 & 4 of the Dowry Prohibition Act, 1961 and sentenced to
undergo three months' rigorous imprisonment along with fine of Rs.500/-.
In the event of default in payment of fine, they were to undergo further
simple imprisonment for fifteen days. However, all these sentences were
directed to run concurrently.

An appeal was preferred by the appellants under Section 374 of Code of
Criminal Procedure, 1973 ("Cr.P.C." for short) against the judgment and
order dated 25.04.2000 passed by the Special Judge (C.B.I)/ Additional
Sessions Judge, Nainital in Sessions Trial No.36 of 1998. After hearing
the counsel for the parties and perusing the Trial Court's record, the High
Court relied, firstly on the finding by the team of two doctors who after
post-mortem examination prepared the autopsy report. The said report
disclosed that there were 90% burns and all these burns were skin deep. As
to the cause of death, the two officers Dr. D.K. Joshi and Dr. H.C. Bhatt
opined that the cause of death could not be ascertained, hence the viscera
was preserved. The viscera report on the Trial Court record disclosed that
pieces of stomach, intestine, liver, kidney and spleen contained Organo
Chloro Insecticide and Ethile Alcohol poisons. The Autopsy report and
chemical examiner's report with statement of Dr. D.K. Joshi clearly
established the fact that the deceased died an unnatural death. Secondly
the High Court also relied on the statements of Virbal Singh, brother of
the deceased (PW- 1), Maan Singh, father of the deceased (PW-2) and Trilok
Singh, uncle of the deceased (PW-3) that the deceased got married to Bhim
Singh on 07.05.1997 and died an unnatural death on 26.9.1997, within 5
months of marriage. It also noted that the accused had themselves admitted
in their replies recorded under Section 313 of Cr.P.C. that the marriage
took place on the said date and Prema Devi died an unnatural death. The
only question in dispute as framed by the High Court was whether the
deceased was subjected to cruelty by the accused appellants before her
death or not. The High Court found that firstly the prosecution had
sufficiently shown as required under Section 304-B IPC that the deceased
was subject to cruelty and harassment by Bhim Singh and Aan Singh by
relying on the statements made on oath by PW-1 Virbal Singh, PW-2 Maan
Singh and PW-3 Trilok Singh where they specifically stated that in the
ceremony of Durgun, Aan Singh complained that expenditure incurred by him
in the marriage had not been recovered. Their statements were corroborated
by statement of Trilok Singh. Relying on Section 113-B of the Indian
Evidence Act 1872 read with prosecution evidence, the High Court opined
that the prosecution had successfully proved charge of offence punishable
under Section 498-A and 304-B of I.P.C. and one punishable under Sections 3
and 4 of Dowry Prohibition Act, 1961 against Bhim Singh and Aan Singh.
Secondly on the point of proving proximity between the taunts and death of
the deceased, the High Court decided that five months was proximate enough
and that presumption under Section 113B was proved beyond doubt to prove
charge. Thirdly, the fact of living separately by showing ration cards was
immaterial. On being urged by the accused that the charge framed by Trial
Court is defective and alternative charge could not have been framed in the
manner it is done by Trial Court, the Court found that there was no error
in stating the offence nor in particulars stated in the charge, nor any
failure of justice as is shown by the appellants. Relying on Sections 221
and Section 464 of Cr.P.C. the High Court opined that there was no error in
the charge nor there was any failure of justice. On going through the
entire evidence on record the High Court found that though the names of
Nain Singh and Janki Devi are mentioned with Bhim Singh and Aan Singh, no
specific role in harassing the deceased is stated against them and as such
the possibility of implication of their names, on suspicion, cannot be
ruled out. Even in respect of charge of offence punishable under Section
498-A and Sections 3 and 4 of Dowry Prohibition Act, 1961, charge against
Nain Singh and Janki Devi had not been proved beyond reasonable doubt. But
as far as conviction recorded by the Trial Court in respect of Bhim Singh
and Aan Singh is concerned, the Trial Court had committed no error in law
in convicting and sentencing them under Section 498-A I.P.C., 304-B I.P.C.,
and one under Sections 3 and 4 of Dowry prohibition Act, 1961 as the charge
against them was proved on the record beyond all reasonable doubt.

The High Court in the present matter convicted appellant Nos.1 & 2, on the
basis of circumstantial evidence in the impugned judgment. It has been
established in leading judicial precedents that where the prosecution case
is based on circumstantial evidence, only the circumstantial evidence of
the highest order can satisfy the test of proof in a criminal prosecution.
To base a conviction on circumstantial evidence put forth by the
prosecution should establish a complete and unbroken chain of events so
that only one inference could be drawn out from the same and if more than
one inference could be drawn, then the accused should be entitled to the
benefit of doubt.

The learned counsel appearing for the State of Uttarakhand contended that
PW-1 Birbal Singh had categorically stated on oath that marriage of his
sister Smt. Prema Devi was solemnized on 7.5.1997 with Bhim Singh. Elder
brother of Bhim Singh, Aan Singh, played role of mediator in finalizing the
marriage. Loan was taken for marriage. However no demand for dowry was
made. But his sister had complained twice that his family was taunting her
and demanding dowry. This statement given by PW-1 is fully corroborated by
the father of the deceased also. Prosecution counsel also examined PW-3
Trilok Singh the uncle, who said that Bhim Singh and Aan Singh talked about
dowry before him and thereupon he expressed his displeasure. The learned
counsel also argued that she died after 4 months and some days of her
marriage in an unnatural way. Further, it is argued that since there was no
mode of transport in the village at night, they could not go to the house
of Prema Devi's in-laws on 26.9.1997 and next day when they reached by
walking on foot for about 15 km, they came to know that the dead body had
been sent to Nainital for post-mortem. Apart from the above witnesses, Smt.
Pushpa Joshi, the Gram Pradhan of the Village was produced as PW-4. She
stated that the elder-brother Aan Singh came to her and told her that Prema
Devi had set herself on fire and thereafter she along with her neighbor,
went to their house and saw Prema Devi lying there badly burnt. PW-4
informed Darogaji Gusai Singh about the incident. The learned counsel
further stated that PW-5 Dr. D.K. Joshi examined the dead body on 26.9.1997
and in external examination found 90% burn injuries on the body. The
deceased had died 6-8 hours prior to examination. Since no cause of death
was visible from external examination, therefore, viscera of the deceased
was preserved for internal examination. Post-mortem report was prepared by
Dr. H.C. Bhatt in which it was stated that he was of the opinion that the
deceased was given some toxic substance before her death due to which she
died and later on she was burnt. Because no external reason of death was
found, the viscera was sent to the State Laboratory for chemical
examination and it was found that toxic material was present in the
viscera. The counsel for the State, thus, submitted that the accused tried
to kill Smt. Prema Devi by giving poisonous substance after torturing her
for dowry and when they became apprehensive whether she had died or not,
they set her on fire to confirm her death. Thereafter, they informed the
Gram Pradhan of the Village that Prema Devi had died due to burning so that
the deceased is not able to give her dying declaration.

On the other hand, the learned counsel for the appellants submitted that PW-
1 Birbal has admitted in his statement that no demand for dowry was made by
accused before the marriage and if at all they wanted dowry, they would
demand it before marriage itself. None of them were in a position to
demand and give dowry. Birbal admitted in his statement that the marriage
was settled voluntarily by Birbal and his father on their own accord. He
stated that "marriage of his sister was settled by his father and his
marriage was solemnized with the consent of both me and my father. My
sister came back to our house after some days of marriage. But I cannot
tell after how many days she came back. Because I was in Haldwani that
time." Further, it was urged that PW-1 and PW-2 have admitted that no
reports were lodged by them prior to death of Prema, with respect to
torture on demand of dowry. The Counsel further said that, the conduct of
the accused was of great importance, as the information of the death was
given by Aan Singh himself to the Gram Pradhan of the Village. If they had
killed her, they would not have informed her family members and instead
would have cremated her immediately after her death. Counsel urged that, it
appears that the deceased herself committed suicide, by first consuming
poisonous substance and thereafter she thought she might not die due to its
consumption, therefore she burnt herself. Learned Counsel further argued
that Bhim Singh, husband of the deceased has two brothers. Aan Singh, elder
brother of Bhim Singh is a Chowkidar in P.W.D. and living separately with
his wife. Bhim Singh was a vehicle driver and his younger brother Nain
Singh was running a shop. Thus, there was no correlation of Aan Singh, Nain
Singh and Janki Devi with Bhim Singh. All three were doing their separate
avocations. The voter lists and ration cards of all the three brothers,
which are on record, are separate. Thus, it is not proved that all three
brothers were involved in the offence. On the other hand, they have helped
the police in this case by informing them.

Thus, the present appeal requires an evaluation and analysis of the
circumstantial evidence on record and the statements made in the course of
investigation and produced against the accused appellants.

The first ground of defense taken by the appellants in this appeal is that
there is no specific incident of abuse or torture for dowry and no prior
report of dowry demand was filed by the family of the deceased. It is also
stated that there was no demand of dowry made by them before marriage as is
evident from the statements of PW-1 Birbal Singh and PW-2 Man Singh.
However, as held by this Court in the State of Himachal Pradesh v. Nikku
Ram & Ors., (1995) 6 SCC 219, the demand for dowry can be made at any time,
and not necessarily before marriage. The demand can be made on three
occasions; before marriage, at the time of marriage and after marriage. The
relevant extract of the said judgment is reproduced hereunder:

"Dowry, dowry and dowry. This is the painful repetition which confronts,
and at times haunts, many parents of a girl child in this holy land of ours
where, in good old days the belief was: "Yatra Naryastu Pujyante ramente
tetra dewatah" (where woman is worshipped, there is abode of God). We have
mentioned about dowry thrice, because this demand is made on three
occasions: (i) before marriage; (ii) at the time of marriage; and (iii)
after the marriage. Greed being limitless, the demands become insatiable in
many cases, followed by torture on the girl, leading to either suicide in
some cases or murder in some."

The accused have taken the defense that the PWs. have also stated in their
statements that no demand for dowry was made before marriage and that the
marriage was concluded by the consent of the two parties. They also took
the defense that no prior police complaint of dowry demand was made by the
family of the deceased. However, in light of the decision of this Court in
State of Himachal Pradesh v. Nikku Ram & Ors. (supra) and the social evil
of dowry that is prevalent in the Indian society, this defense does not
hold water. The demand for dowry can be made at any time and not
necessarily before marriage. The appellants have also taken the plea that
no specific incidents of abuse or torture were there. But in the present
case, PW-3 Trilok Singh has categorically stated in his statement that the
accused Aan Singh had come in the ceremony of durgud, which is celebrated
after marriage in which he had stated in the presence of all the persons
that he had not recovered the money he had spent in the marriage and became
angry. The PWs. have also stated that, the deceased, Smt. Prema Devi had
also complained to her family members twice, regarding taunts and demand
for dowry by the four accused persons. These incidents occurred "soon
before her death" as she died within 5 months of her marriage. This raises
a presumption, under Section 113-B of the Evidence Act, as to dowry death
punishable under Section 304-B of I.P.C. A conjoint reading of Section 113B
of the Evidence Act and Section 304-B of I.P.C. shows that there must be
material to show that soon before her death the victim was subjected to
cruelty or harassment. The prosecution has to rule out the possibility of a
natural or accidental death so as to bring it within the purview of "death
occurring otherwise than in normal circumstances". The prosecution is
obliged to show that soon before the occurrence there was cruelty or
harassment for or in connection with the demand for dowry. In other words,
only when the prosecution proves that soon before her death, the lady was
subjected to cruelty or harassment for or in connection with any demand for
dowry as laid down by this Court in Kaliyaperumal and Anr. Vs. State of
Tamil Nadu (2004) 9 SCC 157. The prosecution has proved by producing cogent
evidence that soon before her death the lady was subjected to cruelty or
harassment in connection with the demand for dowry. Thus, it becomes
obligatory for the Court to raise a presumption that the death is a dowry
death.

It is the case of the defense that the deceased would have tried to commit
suicide by consuming poison and when she was apprehensive whether she would
die or not, she set fire to herself. Assuming, without conceding, that Smt.
Prema had committed suicide, then under Section 113A of the Indian evidence
Act, onus is shifted on the accused to dislodge the presumption of having
committed abetment of suicide by a married woman. Unlike as in Section 304-
B where the court "shall presume" dowry death, when the prosecution has
established the ingredients, under Section 113A of the Evidence Act,
discretion has been conferred upon the Court wherein it has been provided
that the Court may presume abetment of suicide. Therefore the onus lies on
the accused to rebut the presumption, and in case of Section 113-B of the
Evidence Act relatable to Section 304B of IPC, the onus to prove shifts
exclusively and heavily on the accused as held in Bansilal v. State of
Haryana (2011) 11 SCC 359. Thus, where the death of the wife was
concurrently found to be unnatural, viz., by strangulation, and there was
demand for dowry and also cruelty on the part of the husband the
presumption under Section 113B has been rightly drawn, as held in Hemchand
v. State of Haryana AIR 1995 SC 120, 121. Even then the presumption
against the accused persons as in Section 113A of the Evidence Act is
rightly presumed as if we assume that she committed suicide, as the
circumstantial evidence shows that she might be compelled to take the
extreme steps as the alleged suicide was committed within 7 years of
marriage, as held in Gurbachan Singh v. Satpal Singh 1990 Cri. LJ 562,571
(SC). The circumstantial evidence leads to the guilt of the accused
persons, as the prosecution has proved that the accused had the opportunity
to administer the poison and the doctors in the medical examination have
also reported that the deceased was a healthy woman who, along with her
family, was trying to reconcile matters with the accused persons. The fact
that the death occurred in the house of the accused persons, leads to their
guilt. They have not discharged the onus of disproving the presumptions
under Sections 113A and 113B. Thus, the question of suicide is ruled out.
The Court in this case is obliged to take the presumption raised under
Section 113B of the Evidence Act.

The accused persons have taken the defense that they themselves had
informed the Gram Panchayat after she had died upon which the Gram Pradhan
along with other persons went to the accused persons house, where they
found the dead body of Smt. Prema. A prudent man, trying to save a person
from dying would have taken the deceased person to the nearest hospital,
and would not have waited for her to die. The argument put forward by the
learned counsel for the accused that the deceased first consumed poison and
then on being apprehensive of her death, she set herself on fire, is
further proved wrong, as any reasonable man would try to save his wife if
such a situation arise. When facts are clear, it is immaterial whether
motive was proved. Absence of motive does not break the link in the chain
of circumstances connecting the accused with the crime as held by this
Court in Mulakh Raj v. Staish Kumar, (1992) 3 SCC 43 = AIR 1992 SC 1175.
Further, proof of motive or ill-will is unnecessary to sustain conviction
where there is clear evidence.

In the present case, the guilt or innocence of the accused has to be
adduced from the circumstantial evidence. The law regarding circumstantial
evidence is more or less well settled. This Court in a plethora of
judgments has held that when the conviction is based on circumstantial
evidence solely, then there should not be any snap in the chain of
circumstances. If there is a snap in the chain, the accused is entitled to
benefit of doubt. Gurpreet Singh v. State of Haryana (2002) 8 SCC 18 is one
of such cases. On the question of any reasonable hypothesis, this Court has
held that if some of the circumstances in the chain can be explained by any
other reasonable hypothesis, then the accused is entitled to benefit of
doubt. But in assessing the evidence, imaginary possibilities have no
place. The Court considers ordinary human probabilities.

On circumstantial evidence, this Court has laid down the following
principles in Sharad Birdhichand Sardar v. State of Maharashtra, (1984) 4
SCC 116:

The circumstances from which the conclusion of guilt is to be drawn must or
should be and not merely "may be" fully established.

The facts so established should be consistent only with the hypothesis of
the guilt of the accused, that is to say they should not be explainable on
any other hypothesis except that the accused is guilty.

The circumstances should be of conclusive nature and tendency.

They should exclude every possible hypothesis except the one to be proved
and,

There must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have been
done by the accused.

Whenever there is a break in the chain of circumstances, the accused is
entitled to the benefit of doubt; State of Maharashtra v. Annappa Bandu
Kavatage (1979) 4 SCC 715.

Following the decision in Sharad Birdhichand (supra), this Court in the
case of Liyakat v. State of Uttaranchal, (2008) 16 SCC 148, and in the
case of Kusuma Ankama Rao v. State of Andhra Pradesh, (2008) 13 SCC 256,
upheld the conviction as awarded by the Trial Court and affirmed by the
High Court.

Thus, in light of the above, there is no missing link in the circumstantial
evidence put forth by the prosecution, and hence the accused are not
entitled to benefit of doubt. The guilt of the accused persons i.e. the
appellant Nos.1 & 2 herein, under Section 304-B IPC has been successfully
established. We, therefore, find no infirmity in the impugned judgment
passed by the High Court. This appeal is accordingly dismissed. There shall
be no order as to costs.

............................................J
(M.Y. Eqbal)

............................................J
(Pinaki Chandra Ghose)
New Delhi;
February 11, 2015.

"The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company with the deceased. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of the facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act."

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.827 OF 2008

DASIN BAI@ SHANTI BAI ......Appellant

:Versus:

STATE OF CHHATTISGARH ......Respondent

JUDGMENT

Pinaki Chandra Ghose, J.

This appeal has been filed by Dasin Bai against the judgment and order
dated 1st December, 2006 passed by the High Court of Chhattisgarh at
Bilaspur in Criminal Appeal No.1171 of 2001 by which the High Court while
upholding the findings of the Trial Court has dismissed the appeal filed by
the appellant. The facts of the case as narrated by the prosecution are
briefly stated as under:

On February 1, 2000, in the evening, one Raju Rajak (who is the deceased in
this case) was roaming near Kargi road railway station after finishing his
work in a hotel. There he met with Dasin Bai, the Appellant herein. On the
request of Dasin Bai, he went to drop her to her house at Kotsagar Para,
Kota, and after dropping her there when he was returning, Dasin Bai asked
her to stay back at her house. The deceased slept there by covering himself
with a quilt. While he was asleep, Dasin Bai poured Kerosene, kept in a
Jerricane, on him. The deceased woke up by the smell of Kerosene and at the
same time, Dasin Bai set him on fire with a match stick. He got burnt and
shouted for help. On hearing his shout, a neighbor, namely Santosh Yadav
and others ran towards the house of Dasin Bai.

Santosh Yadav covered the body of the deceased with a shawl while Dasin
Bai was standing there. Santosh Yadav (PW 1) brought Raju Rajak out, while
the smell of kerosene was still emanating from the body of Raju. Raju
disclosed that Dasin Bai poured kerosene on him and set him on fire. Raju
was taken to Primary health centre, Kota and then he was taken to District
hospital, Bilaspur for treatment where on 3.2.2000 he died. In the
hospital, dying declaration of Raju was recorded by S.L. Soni (PW 12) in
the presence of Radheyshyam (PW 3), Santosh and Basant Singh.

The investigating officer seized burnt bedding, bed sheet, plastic
jerrican, one match box, one half-burnt match stick, half burnt clothes of
the deceased and one wrist watch from the place of occurrence. Upon
investigation, it was found that Dasin Bai committed murder by setting the
deceased on fire. She was arrested, the charge-sheet was filed and the case
was committed to the Sessions for trial.

The Prosecution examined 12 witnesses to establish the charge against the
accused. Statement of the accused was recorded under section 313 of the
Code of Criminal Procedure, 1973. The accused examined one witness, namely,
Basant Singh Thakur in her defence.

The Sessions Court after hearing the counsel on both the sides and after
perusing the record, by its judgment dated September 29, 2001, convicted
the appellant under Section 302 of the Indian Penal Code and sentenced her
to life imprisonment. Aggrieved by the said judgment of conviction and
sentence, the appellant preferred an appeal before the High Court of
Chhattisgarh at Bilaspur. The High Court upheld the judgment of conviction
and sentence rendered by the Trial Court and dismissed the appeal filed by
the appellant. Against the judgment and order passed by the High Court, the
appellant has filed this appeal petition from jail.

The learned counsel for the appellant contended that the dying declaration
should not have been relied upon by the Trial Court and the High Court. It
was his case that considering the extent of burns, sustained by the
deceased, it was impossible on his part to give any dying declaration. The
learned counsel for the appellant further contended that the evidence
provided by the prosecution was not free and independent since they were
putting forward the version of interested witnesses.

The learned counsel for the respondents on the other hand supported the
impugned judgment of the High Court.

We have heard the learned counsels for the parties. We see no reason to
doubt the veracity of the dying declaration especially since there is
consistency between them.

This Court has observed in a number of cases, that there is no reason to
doubt the veracity of the dying declaration especially, since there is
consistency between them. In the case of Ravi & Anr. v State of T.N. (2004
(10) SCC 776), it has been held by this Court that if the truthfulness or
otherwise of the dying declaration cannot be doubted, the same alone can
form the basis of conviction of an accused and the same does not require
any corroboration, whatsoever in law.

In Mafabhai Nagarbhai Raval v. State of Gujarat, (1992) 4 SCC 69 it has
been held by this Court:

"It must be noted that PW2 recorded the statement within five minutes and
noted time also in the statement. The High Court has rightly pointed out
that both the dying declarations are true and voluntary. It is not the case
of the defense that she gave a tutored version. The entire attack of the
defense was on the mode of recording the dying declarations and on the
ground that the condition of the deceased was serious and she could not
have made the statements. On these aspects as noted above, the evidence of
the doctor is important and relevant. We have gone through the evidence of
the doctor as well as that of the Executive Magistrate. We find absolutely
no infirmity worth mentioning to discard the evidence. It therefore emerges
that both the dying declarations are recorded by independent witnesses and
the same give a true version of the occurrence as stated by the deceased.
The dying declarations are themselves sufficient to hold the appellant
guilty. The High Court has rightly interfered in an appeal against
acquittal. The appeal is accordingly dismissed."

For the factual situation before us, we find that there is consistency
between the statements of Santosh Yadav (PW1), and Radheyshyam (PW3), who
were present when Raju gave the oral dying declaration in the hospital,
before he succumbed to the injuries. There is consistency in their
statements, both stated that they reached the house of Dasin Bai on hearing
the voice "save-save".

Further, the appellant has alleged the dying declarations to be impossible
to give as the deceased was not in a position to do so, as he had suffered
burn injuries. However, this Court has rightly taken the following view in
a situation as contended by the learned counsel for the respondent in
Pothakamuri Srinivasulu v. State of A.P.,(2002) 6 SCC 399, where this Court
observed:

"The learned Counsel for the appellant submitted that for several reasons
the dying declaration cannot be believed. She submitted that looking to the
nature of injuries suffered by the deceased possibly she could not have
spoken and must become unconscious instantaneously. However no such
suggestion has been made to any of the witnesses including the two doctors
who respectively conducted the medico-legal examination of the victim. On
the contrary the three eye-witnesses have positively stated that the
deceased was speaking when they had met soon after the incident. the victim
had died two days after the incident. We cannot in the face of this
positive evidence just assume that the injured must have become unconscious
and speechless because of the injuries and discard on such assumption the
dying declaration deposed to by the independent witnesses corroborated by
the promptly lodged FIR."

Applying the ratio of the above mentioned cases to the present case, we
find that the counsel for the appellant has argued on the same lines.
Merely because the deceased suffered 70 per cent burns, this does not raise
an assumption that he could not have given the oral dying declaration. We
are of the opinion that the High Court was right in believing the oral
dying declaration of the deceased as it did not suffer from any infirmity.
Therefore, the contention of the respondent that the deceased could not
give a dying declaration is devoid of merit.

We are of the opinion that present case also involves appreciation of
circumstantial evidence and application of Section 106 of the Evidence Act,
which unambiguously lays down the law with respect to any fact especially
within the knowledge of a person. In State of Rajasthan v. Kashi Ram,
(2006) 12 SCC 254, it was observed by this Court in respect of Section 106,
that when there is any fact especially within the knowledge of a person,
the burden of proving that fact is upon him. This Court held as follows:

"The provisions of Section 106 of the Evidence Act itself are unambiguous
and categoric in laying down that when any fact is especially within the
knowledge of a person, the burden of proving that fact is upon him. Thus,
if a person is last seen with the deceased, he must offer an explanation as
to how and when he parted company with the deceased. He must furnish an
explanation which appears to the Court to be probable and satisfactory. If
he does so he must be held to have discharged his burden. If he fails to
offer an explanation on the basis of the facts within his special
knowledge, he fails to discharge the burden cast upon him by Section 106 of
the Evidence Act."

Further, while dealing with issue of cases resting on circumstantial
evidence, where the presence of special knowledge is with the accused, this
Court has reiterated time and again that "in a case resting on
circumstantial evidence if the accused fails to offer a reasonable
explanation in discharge of the burden placed on him by Section 106, that
itself provides an additional link in the chain of circumstances proved
against him."

The same observation has again been given in Babu alias Balasubramaniam &
Anr. v. State of Tamil Nadu, (2013) 8 SCC 60, that "appellant-1 could have
by virtue of his special knowledge regarding the said facts offered an
explanation from which a different inference could have been drawn. Since
he has not done so, this circumstance adds up to other circumstances which
substantiate the prosecution case."

The appellant/accused in her statement, recorded under Section 313 of
Criminal Procedure Code, has not given any explanation as to how the
deceased was burnt and she even admits to be unaware of the name of the
deceased. This is highly improbable and cast doubt on the innocence of the
accused. She is unable to discharge the burden cast upon her by Section 106
of the Evidence Act, as it was within her special knowledge as to how the
deceased came into the premises of her house.

The ground of defense taken by the appellant, that she did not have any
motive to kill the deceased, is ill founded and does not break the chain of
circumstances. Therefore, when facts are clear it is not necessary to have
proof of motive or ill-will to sustain conviction. (See Mulakh Raj & Ors.
v. Staish Kumar & Ors., (1992) 3 SCC 43.

Further, with regard to the aspect of the witnesses, PW-1 and PW-3, who
recorded the dying declaration, were neighbours of the accused and hence
the Trial Court correctly held that they are not interested witnesses. The
findings of the Trial Court also bring to light the fact that they had no
animosity with the appellant, and were visiting her house only on the
fateful night.

The Trial Court and the High Court have rightly analysed the evidence of
these witnesses and the statements made in the dying declaration referred
to above and held the accused guilty. That being so, no interference is
called for. This appeal fails and is dismissed. There shall be no order as
to costs.

............................................................J

(M.Y. EQBAL)

............................................................J

(PINAKI CHANDRA GHOSE)

New Delhi;

February 11, 2015.

"Since the issue of diversion of funds is interlinked with other issues namely RSD cost allocation, subsidy, high rate of interest on Government loans etc., the controversy relating to the extent of interest which can be allowed as a pass through cannot be resolved unless the other issues are also decided by the Commission as directed by us. The resolution of these issues are bound to take time and cannot be decided without relevant data. Therefore, relief can only be given to the consumers for the future years. In view of the foregoing, we direct that for the year 2006-2007 the issue relating to the extent of interest which can be allowed as a pass through shall be determined and resolved by the Commission alongwith the determination of the issue relating to RSD cost allocation, subsidy and high rate of interests on Govt. loans. This shall be accomplished during the truing up exercise for the year 2006-2007."

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4510 OF 2006

PUNJAB STATE POWER CORPORATION ... APPELLANT (S)
LIMITED

VERSUS
PUNJAB STATE ELECTRICITY
REGULATORY COMMISSION & ORS. ... RESPONDENT (S)

J U D G M E N T

RANJAN GOGOI, J.

1. This appeal, against the judgment and order dated 26.05.2006 and
25.07.2006 passed by the Appellate Tribunal for Electricity, New Delhi
(hereinafter referred to as the "Appellate Tribunal") was initially filed
by the Punjab State Electricity Board (PSEB). Pursuant to a statutory
scheme of transfer, vide notification dated 16.04.2010, the PSEB had been
unbundled and the functions of generation and distribution came to be
vested in the Punjab State Power Corporation Limited (Corporation). By
order dated 03.09.2014 the Corporation has been substituted as the
appellant in place of the PSEB.

2. Before the learned Appellate Tribunal the tariff orders of the Punjab
State Electricity Regulatory Commission (Commission) dated 30.11.2004 and
14.06.2005 for the financial years 2004-2005 and 2005-2006 were under
challenge. Such challenge was both by the present appellant as well as
various industrial consumers. By the impugned judgment while the appeals
filed by the present appellant have been dismissed, those filed by the
industrial consumers have been disposed of with certain directions.
Aggrieved, the instant appeal has been filed under Section 125 of the
Electricity Act, 2003 (for short "the Act") against the aforesaid common
order of the Appellate Tribunal.

3. Section 125 of the Act contemplates filing of an appeal to this Court
against an order of the Appellate Tribunal on any one or more of the
grounds specified in Section 100 of Code of Civil Procedure, 1908. The
scope of an appeal to this Court under the aforesaid provision of the Act
was considered in DSR (Steel) Pvt. Ltd. Vs. State of Rajasthan[1] holding,
inter alia, that :
"14. An appeal under Section 125 of the Electricity Act, 2003 is
maintainable before this Court only on the grounds specified in Section 100
of the Code of Civil Procedure. Section 100 CPC in turn permits filing of
an appeal only if the case involves a substantial question of law. Findings
of fact recorded by the courts below, which would in the present case,
imply the Regulatory Commission as the court of first instance and the
Appellate Tribunal as the court hearing the first appeal, cannot be
reopened before this Court in an appeal under Section 125 of the
Electricity Act, 2003. Just as the High Court cannot interfere with the
concurrent findings of fact recorded by [pic]the courts below in a second
appeal under Section 100 of the Code of Civil Procedure, so also this Court
would be loath to entertain any challenge to the concurrent findings of
fact recorded by the Regulatory Commission and the Appellate Tribunal. The
decisions of this Court on the point are a legion. Reference to Govindaraju
v. Mariamman[2], Hari Singh v. Kanhaiya Lal[3], Ramaswamy Kalingaryar v.
Mathayan Padayachi[4], Kehar Singh v. Yash Pal[5] and Bismillah Begum v.
Rahmatullah Khan[6] should, however, suffice."

The challenge in the present appeal, therefore, will have to be considered
keeping in mind the principles laid down in DSR (Steel) Pvt. Ltd. Vs. State
of Rajasthan (supra) enumerated above.

4. Before proceeding any further it would require a mention that though
several issues arise from the judgment and order of the learned Appellate
Tribunal, counsel for the appellant has confined his arguments to only four
of such issues dealing with the specific claims made by the PSEB
thereunder in the application for determination of tariff under Section 62
of the Act. The aforesaid four issues are:-

(i) Cost of supply and cross subsidy

(ii) Disallowance of interest cost on account of alleged diversion of
funds

(iii) Disallowance of Employees Cost and

(iv) Coal transit losses.

5. Having regard to the issues calling for an answer, at the outset, a
reference to the statement of objects and reasons for enactment of the Act
would be appropriate. The objects and reasons are self-explanatory as
would be evident on a plain reading of para 1.2, 1.3 and paragraph 3 which
are reproduced hereinbelow:

"1.2 The Electricity (Supply) Act, 1948 mandated the creation of a State
Electricity Board. The State Electricity Board has the responsibility of
arranging the supply of electricity in the State. It was felt that
electrification which was limited to cities needed to be extended rapidly
and the State should step in to shoulder this responsibility through the
State Electricity Boards. Accordingly the State Electricity Boards through
the successive Five Year Plans undertook rapid growth expansion by
utilizing Plan funds.

1.3 Over a period of time, however, the performance of SEBs has
deteriorated substantially on account of various factors. For instance,
though power to fix tariffs vests with the State Electricity Boards, they
have generally been unable to take decisions on tariffs in a professional
and independent manner and tariff determination in practice has been done
by the State Governments. Cross-subsidies have reached unsustainable
levels. To address this issue and to provide for distancing of government
from determination of tariffs, the Electricity Regulatory Commissions Act,
was enacted in 1998. It created the Central Electricity Regulatory
Commission and has an enabling provision through which the State
Governments can create a State Electricity Regulatory Commission. 16
States have so far notified/created State Electricity Regulatory
Commissions either under the Central Act or under their own Reform Acts.

3. With the policy of encouraging private sector participation in
generation, transmission and distribution and the objective of distancing
the regulatory responsibilities from the Government to the Regulatory
Commissions, the need for harmonizing and rationalizing the provisions in
the Indian Electricity Act, 1910, the Electricity (Supply) Act, 1948 and
the Electricity Regulatory Commissions Act, 1998 in a new self-contained
comprehensive legislation arose. Accordingly it became necessary to enact
a new legislation for regulating the electricity supply industry in the
country which would replace the existing laws, preserve its core features
other than those relating to the mandatory existence of the State
Electricity Board and the responsibilities of the State Government and the
State Electricity Board with respect to regulating licensees. There is
also need to provide for newer concepts like power trading and open access.
There is also need to obviate the requirement of each State Government to
pass its own Reforms Act. The Bill has progressive features and endeavours
to strike the right balance given the current realities of the power sector
in India. It gives the State enough flexibility to develop their power
sector in the manner they consider appropriate. The Electricity Bill, 2001
has been finalised after extensive discussions and consultations with the
States and all other stake holders and experts."

6. Chapter VII of the Act deals with tariff. While Section 61 provides
for the principles on basis of which tariff is to be determined, Section 62
contemplates that such determination will be at the point of generation,
transmission and wheeling as well as retail supply to the consumers. The
basic principles on which tariff is to be determined as laid down in
Section 61 of the Act are that generation, transmission and distribution
and supply of electricity should be conducted on commercial principles;
factors which would encourage competition, efficiency, economical use of
resources, good performance and optimum investments are to be kept in mind.
The interests of the consumers are to be safeguarded, and at the same
time, balanced with recovery of cost of electricity in a reasonable manner.
Of particular significance to the present case would be the principle
enshrined in Section 61(g) of the Act (as originally enacted) which
provides that the tariff shall progressively reflect the cost of supply of
electricity and also reduce and eliminate cross-subsidies within the period
to be specified. By Act No.26 of 2007, Section 61(g) has been amended and
the word 'eliminate' has been omitted. The significance of the said
amendment will be noticed separately.

7. Section 62 of the Act provides for determination of tariff at
different stages i.e. generation and supply; transmission; wheeling as well
as retail sale of electricity. Section 62(3) of the Act, which would also
have some significance to the present appeal, visualise that while the
Regulatory Commission shall not show any undue preference to any consumer
in fixing the tariff, the Commission may at its discretion differentiate
according to the consumer's load factor, power factor, voltage, total
consumption of electricity, geographical area, nature of supply etc. For a
fuller appreciation, the entire of the provisions of Sections 61 and 62 may
be quoted hereinbelow:

"61. Tariff regulations.-The Appropriate Commission shall, subject to the
provisions of this Act, specify the terms and conditions for the
determination of tariff, and in doing so, shall be guided by the following,
namely:-

(a) the principles and methodologies specified by the Central Commission
for determination of the tariff applicable to generating companies and
transmission licensees;

(b) the generation, transmission, distribution and supply of electricity
are conducted on commercial principles;

(c) the factors which would encourage competition, efficiency, economical
use of the resources, good performance and optimum investments;

(d) safeguarding of consumers' interest and at the same time, recovery of
the cost of electricity in a reasonable manner;

(e) the principles rewarding efficiency in performance;

(f) multi-year tariff principles;

(g) that the tariff progressively reflects the cost of supply of
electricity and also reduce cross-subsidies in the manner specified by the
Appropriate Commission;

(h) the promotion of co-generation and generation of electricity from
renewable sources of energy;

(i) the National Electricity Policy and tariff policy:

Provided that the terms and conditions for determination of tariff under
Electricity (Supply) Act, 1948 (54 of 1948), the Electricity Regulatory
Commissions Act, 1998 (14 of 1998) and the enactments specified in the
Schedule as they stood immediately before the appointed date, shall
continue to apply for a period of one year or until the terms and
conditions for tariff are specified under this section, whichever is
earlier.

62. Determination of tariff.-(1) The Appropriate Commission shall
determine the tariff in accordance with the provisions of this Act for -

(a) supply of electricity by a generating company to a distributing
licensee:

Provided that the Appropriate Commission may, in case of shortage of
supply of electricity, fix the minimum and maximum ceiling of tariff for
sale or purchase of electricity in pursuance of an agreement, entered into
between a generating company and a licensee or between licensees, for a
period not exceeding one year to ensure reasonable prices of electricity;

(b) transmission of electricity;

(c) wheeling of electricity:

(d) retail sale of electricity:

Provided that in case of distribution of electricity in the same area by
two or more distribution licensees, the Appropriate Commission may, for
promoting competition among distribution licensees, fix only maximum
ceiling of tariff for retail sale of electricity.

(2) The Appropriate Commission may require a licensee or a generating
company to furnish separate details, as may be specified in respect of
generation, transmission and distribution for determination of tariff.

(3) The Appropriate Commission shall not, while determining the tariff
under this Act, show undue preference to any consumer of electricity but
may differentiate according to the consumer's load factor, power factor,
voltage, total consumption of electricity during any specified period or
the time at which the supply is required or the geographical position of
any area, the nature of supply and the purpose for which the supply is
required.

(4) No tariff or part of any tariff may ordinarily be amended, more
frequently than once in any financial year, except in respect of any
changes expressly permitted under the terms of any fuel surcharge formula
as may be specified.

(5) The Commission may require a licensee or a generating company to
comply with such procedure as may be specified for calculating the expected
revenues from the tariff and charges which he or it is permitted to
recover.

(6) If any licensee or a generating company recovers a price or charge
exceeding the tariff determined under this section, the excess amount shall
be recoverable by the person who has paid such price or charge along with
interest equivalent to the bank rate without prejudice to any other
liability incurred by the licensee."

8. We may now proceed to consider the four issues as enumerated
hereinabove which have been raised before us.

9. Cost of Supply and Cross Subsidy

The statement of objects and reasons for the enactment of the Act,
extracted above, would indicate a legislative realisation that the power
sector in the country was in dire straits. This was largely on account of
implementation of policy decisions to provide free or highly subsidised
power to certain classes of consumers. In a regime wherein tariff was a
matter of governmental dictation and directives providing free or
subsidised power to one section at the cost of another or others and a host
of such related decisions divorced from commercial and prudent practices
had plunged the power sector into uncertainty and darkness. To remedy the
situation, the Act of 2003 was enacted which, inter-alia, vested the power
of fixation of tariff in the Regulatory Commissions with the Legislature
itself clearly enunciating the principles for such determination as are to
be found in Section 61 details of which has already been noted. Section
61(g), as originally enacted, contemplated a progressive journey to reduce
and ultimately eliminate cross-subsidies by identifying the cost of supply
to the consumer. The vision of each consumer fully paying for the power
drawn by such consumer was to be reached over a period of time. In fact in
the tariff policy notified under Section 3 of the Act it was visualised
that by the end of the year 2010-2011 tariff should be within 20 per cent
of the average cost of supply (average cost). The aforesaid National
Tariff Policy was published in the year 2006. Clause 2 thereof which deals
with the above aspect of the matter is in the following terms:-

"2. For achieving the objective that the tariff progressively reflects
the cost of supply of electricity, the SERC would notify roadmap within six
months with a target that latest by the end of year 2010-2011 tariffs are
within 20% of the average cost of supply. The road map would also have
intermediate milestones, based on the approach of a gradual reduction in
cross subsidy.

For example if the average cost of service is Rs. 3 per unit, at the end of
year 2010-2011 the tariff for the cross subsidised categories excluding
those referred to in para 1 above should not be lower than Rs. 2.40 per
unit and that for any of the cross-subsidising categories should not go
beyond Rs.3.60 per unit."

10. Section 61(g), as earlier noted, was amended by Act No.26 of 2007.
The amended Section omitted the word "eliminate" the effect whereof was
that cross-subsidies were destined to remain for the present and the
emphasis was on attainment of minimum levels of such subsidy. The
determination of "cost of supply" and reduction/elimination of cross-
subsidies is closely interlinked. The difference in the intent and purport
of Section 61(g) before and after its amendment would not be very relevant.
The reduction of cross subsidy was contemplated by the unamended section
as the first step leading to elimination. The change of legislative intent
to put on hold, if not to abandon, the elimination of cross subsidies
occurred during the period of transition itself. This is so because of the
close proximity of time between the original enactment and its amendment.
Besides, the road map visualised by the National Tariff Policy itself
contemplated the continuance of cross subsidy even in the year 2010-2011
whereas the amendment to Section 61(g) came about in the year 2007.

11. The Commission while considering the fixation of tariffs for the
years 2004-2005 and 2005-2006 based its determination on the average cost
of supply which plainly is to be worked out by taking into account the
total volume of electricity produced and the total cost incurred in such
production. The industrial consumers in the appeal before the Tribunal
contended that the cost of supply should be the voltage cost of supply,
namely, the cost at which the consumer receives electricity at a particular
voltage as a higher voltage would mean a lower price on account of lesser
amount of distribution losses. As the industrial consumer receives supply
of electricity at a high voltage, the average cost of supply, according to
the industrial consumers, were to their detriment and was thus not
contemplated under the Act. The Appellate Tribunal on an interpretation of
Section 61(g) and 62(3) particularly in the absence of any prefix to the
expression "cost of supply" in Section 61(g) took the view that it is more
reasonable to advance towards a regime of voltage cost of supply which
would provide a more actual/realistic basis for dealing with the issue of
cross subsidies. However, as the progress to a regime of voltage cost of
supply by reduction/elimination of cross-subsidies is to be gradual, the
learned Appellate Tribunal held that no fault can be found with the
determination of the average cost of supply made by the Commission for the
financial years in question. However, keeping in view what the Tribunal
understood to be the ultimate object of the Act it had directed that the
relevant data with regard to voltage cost should be laid before the
Commission and for the future the Commission would gradually proceed to
determine the voltage cost of supply.

12. We have considered the perspective adopted by the learned Appellate
Tribunal in seeking an answer to the issue of cost of supply/cross
subsidies that had arisen for decision by it. The provisions of the Act
and the National Tariff Policy requires determination of tariff to reflect
efficient cost of supply based upon factors which would encourage
competition, promote efficiency, economical use of resources, good
performance and optimum investments. Though the practice adopted by many
State Commissions and utilities is to consider the average cost of supply
it can hardly be doubted that actual costs of supply for each category of
consumer would be a more accurate basis for determination of the extent of
cross-subsidies that are prevailing so as to reduce the same keeping in
mind the provisions of the Act and also the requirement of fairness to each
category of consumers. In fact, we will not be wrong in saying that in
many a State the departure from average cost of supply to voltage cost has
not only commenced but has reached a fairly advanced stage. Moreover, the
determination of voltage cost of supply will not run counter to the
legislative intent to continue cross subsidies. Such subsidies, consistent
with executive policy, can always be reflected in the tariff except that
determination of cost of supply on voltage basis would provide a more
accurate barometer for identification of the extent of cross subsidies,
continuance of which but reduction of the quantum thereof is the avowed
legislative policy, at least for the present. Viewed from the aforesaid
perspective, we do not find any basic infirmity with the directions issued
by the Appellate Tribunal requiring the Commission to gradually move away
from the principle of average cost of supply to a determination of voltage
cost of supply.

13. Disallowance of Interest cost on account of alleged
diversion of funds

The Commission disallowed a total of Rs.100 crores on account of
interest paid on borrowed funds on the ground that the loans obtained to
meet capital expenditure were diverted by the Board (PSEB) to meet revenue
expenditure. The bulk of the interest (except Rs.100 crores) was, however,
allowed by the Commission on the ground that the same is a consequence of
the events in force prior to the coming into existence of the Commission
and that if the Board is asked to bear the burden of the entire interest it
will have a crippling effect on its resources. In considering the issue
the Commission further came to the finding that the total assets of the
Board would be of the value of Rs.9.431.06 crores out of which the assets
created with the funds available from consumers' contribution, grants and
subsidy towards capital assets etc. works out to Rs. 1784.48 crores leaving
the balance assets at Rs.7646.58 crores. As against this, the PSEB has
availed loans and equity amounting to Rs.11828.48 crores upto the period
ending March 31, 2004. The Commission accordingly recorded the finding
that the Board had availed loan to the extent of Rs.4181.90 crores in
excess of its capital assets. Obviously, the entire of the said excess
amount was diverted towards meeting revenue expenditure which is against
all canons of acceptance. Therefore, the amount on this loan paid by the
PSEB cannot be shifted to the consumer. Despite the said findings, for the
reasons already noticed, the Commission had disallowed interest of an
amount of Rs.100 crores only allowing the balance to be charged on
the consumers through the tariff. The Appellate Tribunal taking note of
the facts mentioned above did not interfere with the limited disallowance
made by the Commission and instead remanded the issue for a fuller
consideration of the Commission, in the determination for the subsequent
years, in the following terms :

"Since the issue of diversion of funds is interlinked with other issues
namely RSD cost allocation, subsidy, high rate of interest on Government
loans etc., the controversy relating to the extent of interest which can be
allowed as a pass through cannot be resolved unless the other issues are
also decided by the Commission as directed by us. The resolution of these
issues are bound to take time and cannot be decided without relevant data.
Therefore, relief can only be given to the consumers for the future years.

In view of the foregoing, we direct that for the year 2006-2007 the issue
relating to the extent of interest which can be allowed as a pass through
shall be determined and resolved by the Commission alongwith the
determination of the issue relating to RSD cost allocation, subsidy and
high rate of interests on Govt. loans. This shall be accomplished during
the truing up exercise for the year 2006-2007."

The conclusion of the learned Tribunal being on a consideration of the
facts and circumstances noted above, we can only approve the views
expressed.

14. Disallowance of Employees Cost

The Board had projected employees cost at Rs.1605.40 crores in the
ARR for 2004-2005 and at Rs.1700 crores for 2005-2006. The Commission in
its tariff order for financial year 2002-2003 had allowed employees cost of
Rs.1274.66 crores with the rider that for the next year the
employees' cost will be capped. However, the employees cost for financial
year 2003-2004 and 2004-2005 had remained capped. The Commission allowed a
cumulative increase of 15.6% for the year 2005-2006 by taking into account
the increase in wholesale price index taking the financial year 2002-03 as
the base year. The approved level of employees' cost of the Board of
Rs.1274.66 crores for the year 2002-2003, consequently, stood allowed to
the extent of Rs.1473.63 crores.

15. In the appeal before the Appellate Tribunal, the Board contended that
the capping of the increase of employees cost for the year 2004-2005 was
not justified and that the increase allowed by the Commission for the
financial year 2005-2006 is not adequate. The employees of the Board are
governed by the Punjab State Electricity Service Regulations 1972
whereunder the employees are given parity with the pay scales of the State
Government employees. As the Board had adopted the recommendation of the
5th Pay Commission a higher pay scale was required to be given to its
employees. The Board also placed before the Tribunal the details of the
efforts made by it to contain the employees cost including reduction in the
number of its employees.

16. The Appellate Tribunal took the view that what was obligatory on the
Board was to provide parity of pay scales of its employees with those of
the State Government at the time when the transfer of the Electricity Board
took place. Grant of higher pay scale without linking the same to
performance would, according to the Tribunal, defeat the provisions of
Electricity Act 2003. The Tribunal further held that the measures pointed
out by the Board to cut the employees cost were cosmetic. In this regard
the Tribunal observed that though the Board had claimed to have reduced its
employees from 91224 in the year 2000-2001 to 82494 in the year 2003-
2004 appointment on contract basis as well as in the exigencies of service
continued to be made on no known basis. The Tribunal found that even the
voluntary retirement scheme which could have been a viable option was not
adopted on the ground that the State Government was not in a position to
provide the expenses. In this regard the Tribunal in its order has
specifically found that :

(i) The number of consumers of electricity in the State of Punjab is the
least as compared to the other six States referred to in the charts;

(ii) PSEB 0.24 MU per employee, which puts the Board in the second lowest
position in the matter of sale of energy per employee;

(iii) Each employee of the PSEB caters to 59 consumers in the State
of Punjab. This ranking is the lowest amongst the seven SEBs;

(iv) PSEB has the highest percentage of establishment cost to total cost
as it constitutes 56 paise/Kwh cost of energy sold, which is also the
highest compared to other six States and

(v) The Boards per employee cable line circuit is the lowest being 2.95
Km/ckt cost against 7.84 Km/ckt in respect of Gujarat State.

17. It is in the light of the aforesaid facts that the Appellate Tribunal
came to the conclusion that the employees cost computed and claimed by the
PSEB at 1700 crores for the financial year 2005-2006 cannot be allowed.
However, the Tribunal taking into account the fact that for the previous
two years 2003-2004 and 2004-2005 no increase in employees cost have been
allowed thought it proper to allow the cumulative increase permitted by the
Commission i.e. 15.61% over and above the employees cost of Rs.1274.66
crores in the year 2002-2003 which, on proper calculation, works out to
Rs.1473.63 crores.

18. The eventual conclusion of the learned Appellate Tribunal having been
arrived at in the manner indicated above and being on due consideration of
the facts relevant to the issue we are of the view that no interference in
exercise of the limited jurisdiction of this Court under Section 125 of the
Act would be justified.

19. Coal transit losses

For the year 2004-05 the Tribunal had allowed transit loss of 2% as against
3% allowed in the previous year i.e. 2003-04. The Tribunal also directed
the PSEB to bring down the level of transit loss to 1% in the next 3 years
with yearly reduction target of 0.33%. For the year 2005-2006, however,
the learned Tribunal had approved the allowance of transit loss of 0.8%
allowed by the Commission. Though there appears to be a slight
inconsistency in the above view of the Tribunal, as the same has been
prompted by the necessity to bring down losses by the utilities by adopting
appropriate and prudent measures we do not think that any interference will
be justified particularly when what has been allowed is as per the CERC
norms (0.8%). The Tribunal had also taken the view that excessive loss
reflected inefficiency and must therefore be eliminated. If the Appellate
Tribunal, on consideration of the above fact had for the year 2004-2005
allowed transit loss to the extent of 2% as against the prescribed norm of
0.8% and for the year 2005-2006 had kept such allowance at 0.8%, we do not
see how interference with the above directions would be justified in the
present appeal under Section 125 of the Act.

20. For all the reasons stated above we find no ground whatsoever to
interfere with the impugned judgment and order dated 26.05.2006 and
25.07.2006 passed by the Appellate Tribunal or any part thereof. The
appeal is, therefore, dismissed without any order as to cost.
..................................J.
[RANJAN GOGOI]

..................................J.
[R.K. AGRAWAL]

New Delhi;
February 10, 2015.
-----------------------
[1]
[2] (2012) 6 SCC 782
[3]
[4] (2005) 2 SCC 500
[5]
[6] (1999) 7 SCC 288
[7]
[8] 1992 Supp (1) SCC 712
[9]
[10] AIR 1990 SC 2212
[11]
[12] (1998) 2 SCC 226

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