“Whether the amounts paid by the ONGC to the non-resident assessees /foreign companies for providing various services in connection with prospecting, extraction or production of mineral oil is chargeable to tax as “fees for technical services” under Section 44D read with Explanation 2 to Section 9(1)(vii) of the Income Tax Act or will such payments be taxable on a presumptive basis under Section 44BB of the Act”?the pith and substance of each of the contracts/agreements is inextricably connected with prospecting, extraction or production of mineral oil. The dominant purpose of each of such agreement is for prospecting, extraction or production of mineral oils though there may be certain ancillary works contemplated thereunder. If that be so, we will have no hesitation in holding that the payments made by ONGC and received by the non-resident assessees or foreign companies under the said contracts is more appropriately assessable under the provisions of Section 44BB and not Section 44D of the Act. On the basis of the said conclusion reached by us, we allow the appeals under consideration by setting aside the orders of the High Court passed in each of the cases before it and restoring the view taken by the learned Appellate Commissioner as affirmed by the learned Tribunal.

                                                                     NON-
REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL  NO. 731 OF 2007

OIL & NATURAL GAS CORPORATION LIMITED         ...APPELLANT (S)



                                   VERSUS

COMMISSIONER OF INCOME TAX & ANR.            ... RESPONDENT (S)

                                    WITH
CIVIL APPEAL NOs.729 OF 2007, 733 OF 2007,  736 OF 2007, 737  OF  2007,  738
OF 2007, 740 OF 2007, 741 OF 2007, 6008 OF  2007,  6016  OF  2007,  6023  OF
2007, 925 OF 2008, 1239 OF 2008, 1240 OF 2008, 1514 OF 2008, 1515  OF  2008,
1516 OF 2008, 1517 OF 2008, 1518 OF 2008, 1519 OF 2008, 1520 OF  2008,  1521
OF 2008, 1522 OF 2008, 1523 OF 2008, 1524 OF 2008, 1527  OF  2008,  1528  OF
2008, 1529 OF 2008, 1531 OF 2008, 1532 OF 2008, 1533 OF 2008, 1535 OF  2008,
2008 OF 2008, 2012 OF 2008, 4321 OF 2008, 7226 OF 2008, 7227 OF  2008,  7230
OF 2008, 2794 OF 2009, 2795 OF 2009, 2796 OF 2009, 2797  OF  2009,  1722  OF
2010 AND CIVIL APPEAL NO. 6174 OF 2010

                               J U D G M E N T
RANJAN GOGOI, J.

1.    The issue that arise for consideration in this  group  of  appeals  is
common and may be summarized as follows.

“Whether the  amounts  paid  by  the  ONGC  to  the  non-resident  assessees
/foreign  companies  for  providing  various  services  in  connection  with
prospecting, extraction or production of mineral oil is  chargeable  to  tax
as “fees for technical services” under Section 44D read with  Explanation  2
to Section 9(1)(vii) of the Income Tax Act or will such payments be  taxable
on a presumptive basis under Section 44BB of the Act”?

2.    The appellant-ONGC has been assessed in a representative  capacity  on
behalf of  the  different  foreign  companies  with  whom  it  had  executed
separate agreements for  services  to  be  rendered  by  such  companies  in
connection with prospecting, extraction or production  of  mineral  oils  by
ONGC.

3.    The primary/assessing authority took the  view  that  the  assessments
should be made under Section 44D of the Act and  not  Section  44BB  of  the
Income Tax Act (hereinafter  referred  to  as  the  ‘Act’).   The  Appellate
Commissioner and the Income Tax Appellate Tribunal disagreed with the  views
of the assessing authorities leading to the institution of separate  appeals
before the High Court of Uttrakhand in respect of each  of  the  assessments
made for the years in question.  The High  Court  considered  the  facts  of
Civil Appeal No. 731 of 2007 (Income Tax Appeal No. 239 of 2001  before  the
High Court) as the lead case and on the grounds and reasons assigned in  the
impugned order dated 15.12.2005, the High Court overturned  the  view  taken
by the  Appellate  Commissioner  and  the  learned  Tribunal  and  held  the
payments made to be liable for assessment under  Section  44D  of  the  Act.
Aggrieved, the ONGC has filed the present group of appeals.

4.    We have heard Shri Arvind P. Datar, learned senior  counsel  appearing
for the appellant and Shri Guru Krishna Kumar, learned  senior  counsel  for
the Revenue.

5.    As the facts of Civil Appeal No. 731 of 2007 corresponding  to  I.T.A.
No. 239 of 2001 has been considered in detail by  the  High  Court  and  the
view expressed in the said proceeding have been followed in  all  the  other
appeals before the High Court, it may be necessary to notice in  detail  the
said facts arising in the appeal in question.

6.    The  appellant-ONGC  and  a  non  resident/foreign  company  one  M/s.
Foramer France had entered into  an  agreement  by  which  the  non-resident
company had agreed to make available supervisory staff and personnel  having
experience and expertise  for operation  and  management  of  drilling  rigs
Sagar Jyoti and Sagar Pragati  for  the  assessment  year  1985-86  and  the
drilling rig Sagar Ratna for the assessment year 1986-87.   Faced  with  the
different views taken by the authorities under the Act, as mentioned  above,
the High Court proceeded to analyse the different clauses  of  the  contract
between the parties.  A consideration of such  analysis  made  by  the  High
Court would go to show that it had come to light before the High Court  that
the contract between the  parties  visualized  operation  of  the  oil  rigs
including drilling operations by the  personnel  made  available  under  the
contracts/agreements, which fact was further stated on affidavit before  the
High Court by an authorized official of the ONGC in the following terms.
“That under the said agreement, Foramer was required, through its  personnel
listed in Exhibit-A to the said  agreement,  to  carry  out  inter-alia  the
drilling operations specified in clause 4.3 to 4.10 of the said agreement.”

Despite the above, the High Court took the view  that  under  the  agreement
payment to M/s. Foramer France was required to be made at the rate  of  3450
USD per  day  and  that  the  contract  clearly  contemplated  rendering  of
technical   services   by    personnel   of   the   non-resident    company.
Specifically, taking the view that the contract did  not  mention  that  the
personnel of the non-resident company was also  carrying  out  the  work  of
drilling of wells and as  the  company  had  received   fees  for  rendering
service the payments made were liable to be taxed under  the  provisions  of
Section 44D of the Act.  As already noticed, in  the  rest  of  the  appeals
before the High Court the aforesaid  decision  dated  15.12.2005  passed  in
I.T.A. No. 239 of 2001 was followed on the basis that the facts in  all  the
appeals were similar to those involved in I.T.A. No. 239 of 2001.
7.    It will be convenient and  in  fact  necessary  for  the  purposes  of
present adjudication to take a careful note of the  provisions  of  Sections
44BB, 44D and also clause (vii) of Explanation 2  to  Section  9(1)  of  the
Income Tax Act,  1961 (hereinafter for short the ‘Act’).

“44BB. Special provision for computing profits and gains in connection  with
the business of exploration, etc., of mineral oils.-
(1)  Notwithstanding  anything  to  the   contrary   contained   in sections
28 to 41 and sections 43 and 43A, in the case of an assessee, being  a  non-
resident, engaged in the business of providing  services  or  facilities  in
connection with, or supplying plant and machinery on hire  used,  or  to  be
used, in the prospecting for, or extraction or production of, mineral  oils,
a sum equal to ten per cent of the aggregate of  the  amounts  specified  in
sub-section (2) shall be  deemed  to  be  the  profits  and  gains  of  such
business chargeable to tax under the head "Profits and gains of business  or
profession" :

Provided that  this  sub-section  shall  not  apply  in  a  case  where  the
provisions  of section  42 or section  44D or    [section   44DA or] section
115A or section 293A apply for the purposes of computing  profits  or  gains
or any other income referred to in those sections.

(2)   The amounts referred to in sub-section (1)  shall  be  the  following,
namely:—

(a)   the amount paid or payable  (whether  in  or  out  of  India)  to  the
assessee or to any person on his behalf  on  account  of  the  provision  of
services  and  facilities  in  connection  with,  or  supply  of  plant  and
machinery on hire used, or to be used in the prospecting for, or  extraction
or production of, mineral oils in India; and

(b)   the amount received or deemed to be received in India by or on  behalf
of the assessee on account of the provision of services  and  facilities  in
connection with, or supply of plant and machinery on hire  used,  or  to  be
used in the prospecting for, or extraction or  production  of  mineral  oils
outside India.

 [(3) Notwithstanding anything contained in  sub-section  (1),  an  assessee
may claim lower profits and gains than the profits and  gains  specified  in
that sub-section, if he keeps and maintains such books of account and  other
documents as required under sub-section (2)  of section  44AA and  gets  his
accounts  audited  and  furnishes  a  report  of  such  audit  as   required
under section 44AB, and thereupon the Assessing  Officer  shall  proceed  to
make an assessment of the total income or loss of the  assessee  under  sub-
section (3) of section 143 and determine the sum payable by,  or  refundable
to, the assessee.]

Explanation.—For the purposes of this section,—

(i)    "plant"  includes  ships,   aircraft,   vehicles,   drilling   units,
scientific apparatus and  equipment  used  for  the  purposes  of  the  said
business;

(ii)  "mineral oil" includes petroleum and natural gas.]”

“44D. Special provision for computing income by way of royalties,  etc.,  in
the case of foreign companies.-

Notwithstanding anything to the contrary  contained  in sections  28 to 44C,
in the case of an assessee, being a foreign company,—

(a)   the deductions admissible under the said  sections  in  computing  the
income by way of royalty  or  fees  for  technical  services  received [from
Government or an Indian concern in pursuance of an  agreement  made  by  the
foreign company with Government or with the Indian concern] before  the  1st
day of April, 1976, shall not exceed in the aggregate  twenty  per  cent  of
the gross amount of such royalty or fees as reduced by so much of the  gross
amount of such royalty  as  consists  of  lump  sum  consideration  for  the
transfer outside India of, or the imparting of information outside India  in
respect of, any data, documentation, drawing or  specification  relating  to
any patent, invention, model, design, secret formula  or  process  or  trade
mark or similar property;

(b)   no deduction in respect of  any  expenditure  or  allowance  shall  be
allowed under any of the said sections in computing the  income  by  way  of
royalty or fees for technical  services  received  [from  Government  or  an
Indian concern in pursuance of an agreement  made  by  the  foreign  company
with Government or with the Indian concern] after the  31st  day  of  March,
1976  [but before the 1st day of April, 2003];

(c)   [***]

(d)   [***]

Explanation.—For the purposes of this section,—

(a)   "fees for technical services" shall  have  the  same  meaning  as  in
[Explanation 2] to clause (vii) of sub-section (1) of section 9;

(b)   "foreign company" shall have the same meaning as in section 80B;

"royalty" shall have the same meaning as in Explanation 2 to clause (vi)  of
sub-section (1) of section 9;

(d)   royalty received [from Government or an Indian  concern  in  pursuance
of an agreement made by a  foreign  company  with  Government  or  with  the
Indian concern] after the 31st day of March, 1976, shall be deemed  to  have
been received in pursuance of an  agreement  made  before  the  1st  day  of
April, 1976, if such agreement is deemed, for the purposes  of  the  proviso
to clause (vi) of sub-section (1) of section 9, to  have  been  made  before
the 1st day of April, 1976.]”

“9. (1) (vii) income by way of fees for technical services payable by—

(a)   the Government ; or
(b)   a person who is a resident, except  where  the  fees  are  payable  in
respect of services utilised in a business or profession carried on by  such
person outside India or for the purposes of making  or  earning  any  income
from any source outside India; or
(c)   a person who is a non-resident, where the fees are payable in  respect
of services utilised in a business or profession carried on by  such  person
in India or for the purposes of  making  or  earning  any  income  from  any
source in India :

[Provided that nothing contained in this clause shall apply in  relation  to
any income by way of fees for technical services payable in pursuance of  an
agreement made before the 1st day  of  April,  1976,  and  approved  by  the
Central Government.]

[Explanation 1.—For the purposes of  the  foregoing  proviso,  an  agreement
made on or after the 1st day of April, 1976, shall be deemed  to  have  been
made before that date if the agreement is made in accordance with  proposals
approved by the Central Government before that date.]

[Explanation 2.—For  the  purposes  of  this  clause,  "fees  for  technical
services" means any consideration (including  any  lump  sum  consideration)
for the rendering of  any  managerial,  technical  or  consultancy  services
(including the provision of services of technical or  other  personnel)  but
does not include consideration for any  construction,  assembly,  mining  or
like project undertaken by the recipient or  consideration  which  would  be
income of the recipient chargeable under the head "Salaries".]

(2) Notwithstanding anything  contained  in  sub-section  (1),  any  pension
payable outside India to a person residing permanently outside  India  shall
not be deemed to accrue or arise in India, if the pension is  payable  to  a
person referred to in article 314 of the Constitution or to  a  person  who,
having been appointed before the 15th day of August, 1947, to be a Judge  of
the Federal Court or of a High Court within the meaning  of  the  Government
of India Act, 1935, continues to serve on or after the commencement  of  the
Constitution as a Judge in India.

 [Explanation.—For the removal of doubts, it is  hereby  declared  that  for
the purposes of this section, income of a non-resident shall  be  deemed  to
accrue or arise in India under clause (v) or clause (vi) or clause (vii)  of
sub-section (1) and shall be included  in  the  total  income  of  the  non-
resident, whether or not,—
(i) the non-resident has a  residence  or  place  of  business  or  business
connection in India; or
(ii) the non-resident has rendered services in India.]”

8.    A careful reading of the aforesaid provisions of the Act goes to  show
that under Section 44BB(1) in case of a non-resident providing  services  or
facilities in connection with or supplying plant and machinery  used  or  to
be used in prospecting, extraction or production of mineral oils the  profit
and gains from such business chargeable to tax is to be calculated at a  sum
equal to 10% of the aggregate of the amounts paid or payable  to  such  non-
resident assessee as mentioned in Sub-section  (2).    On  the  other  hand,
Section 44D contemplates that if the income of a foreign company with  which
the government or  an  Indian  concern  had  an  agreement  executed  before
1.4.1976 or on any date thereafter the computation of income would  be  made
as contemplated  under  the  aforesaid  Section  44D.   Explanation  (a)  to
Section  44D  however  specifies  that  “fees  for  technical  services”  as
mentioned in Section 44D would have the same meaning as in Explanation 2  to
Clause (vii) of Section 9(1).  The said explanation as quoted above  defines
“fees for technical services”  to mean consideration for  rendering  of  any
managerial, technical or consultancy services.  However, the later  part  of
the  explanation  excludes  from  consideration  for  the  purposes  of  the
expression i.e. “fees for  technical  services”  any  payment  received  for
construction, assembly, mining or like project undertaken by  the  recipient
or consideration which would be chargeable under the head “salaries”.   Fees
for technical services, therefore, by virtue of  the  aforesaid  explanation
will not include payments made in connection with a mining project.
9.    Before the High Court, a Circular No. 1862 dated 22.10.1990  having  a
bearing on the subject  was  placed  for  consideration  by  the  appellant-
assessee.  The aforesaid instruction may be conveniently  reproduced  herein
below.
“Subject: Definition of “fees for  technical  services”  in  Explanation  to
Section 9(1) (vii) of the Income Tax Act, 1961  whether prospecting  for  or
extraction  of  production  of  mineral   oil   are   “mining”   operations-
clarification regarding.

The  expression  “fees  for  technical  services”  has   been   defined   in
Explanation 2 to Section 9(1) (vii) of the Income Tax Act, 1961  as under:

“Explanation 2.—For  the  purposes  of  this  clause,  "fees  for  technical
services" means any consideration (including  any  lump  sum  consideration)
for the rendering of  any  managerial,  technical  or  consultancy  services
(including the provision of services of technical or  other  personnel)  but
does not include consideration for any  construction,  assembly,  mining  or
like project undertaken by the recipient or  consideration  which  would  be
income of the recipient chargeable under the head "Salaries".

2. The question whether prospecting for, or  extraction  or  production  of,
mineral oil can be  termed  as  ‘mining  operations,  was  referred  to  the
Attorney General of India for his opinion. The Attorney General  has  opined
that such operations are  mining  operations  and  the  expressions  ‘mining
project’ or ‘like projects’ occurring in Explanation 2 to Section 9(1)  (ii)
of the Income Tax Act would cover rendering of services  like  imparting  of
training  and  carrying  out  drilling   operations   for   exploration   or
exploitation of oil and natural gas.

3. In view of the above opinion, the consideration for  such  services  will
not  be  treated  as  fees  for  technical  services  for  the  purpose   of
Explanation 2 to Section 9(1) (vii) of the Income-tax Act,  1961.   Payments
for  such  services  to  a  foreign  company,  therefore,  will  be   income
chargeable to tax under the provisions of section 44BB   of  the  Income-tax
Act, 1961 and not under the special provision for the taxation of  fees  for
technical services contained in section 115A read with section  44D  of  the
Income-tax Act, 1961.

4. A copy of the statement of the case dated 16.3.1990  (without  annexures)
and a copy of the Attorney General’s opinion dated 13.5.90 are enclosed.

5. These instructions may brought to the notice of all the officers in  your
region.
[F.No.500/6/89-FTD dt.22.10.90 from CBDT]”

10.   Before us the opinion of the learned Attorney General has been  placed
by the learned counsel for the appellants at great length  to  contend  that
the views expressed by the learned Attorney which had been accepted  by  the
CBDT were based on an exhaustive consideration  of  the  provisions  of  the
Mines Act, 1952 and the Mines  and  Minerals  (Regulation  and  Development)
Act, 1957 read with the relevant Entries in the Union and the State List  in
the 7th Schedule to the  Constitution  of  India.   It  is  urged  that  the
eventual test is one  of  pith  and  substance  of  the  agreement,  namely,
whether the  works  contemplated  or  services  to  be  rendered  under  the
agreement  is  directly  and  inextricably  linked  with  the   prospecting,
extraction or production of mineral oil.  It is submitted on behalf  of  the
appellants that the agreements in question satisfy the above test for  which
purpose the appellants have categorized  the  different  contracts  under  8
heads which may be conveniently set out at this stage hereinbelow.
Carrying out seismic surveys and drilling for oil and gas



2.    Services starting/re-starting/enhancing  production  of  oil  and  gas
from wells


3.    Services for prospecting for exploration of oil and or gas


4.    Planning and supervision of repair of wells


Repair, Inspection or Equipment  used  in  the  exploration,  extraction  or
production of oil and gas


6.    Imparting Training


Consultancy in regard to exploration of oil and gas


8.     Supply,  Installation,  etc.  of  software  used  for  oil  and   gas
exploration”



11.    It  is  also  urged  on   behalf   of   the   appellants   that   the
instruction/Circular dated 22.10.1990 issued by the CBDT was binding on  the
primary authority on the ratio  of  the  decision  of  this  Court  in  K.P.
Varghese Vs. Income Tax Officer,  Ernakulam  and  Others[1].   It  has  been
further pointed on behalf of the appellants that even under  the  provisions
of Section 3D of the Oil Fields (Regulation  and  Development)  Act  1948  a
mining lease means a lease  granted  for  the  purposes  of  searching  for,
winning,  working,  getting,  making  merchandisable,   carrying   away   or
disposing of mineral oils or for the purpose connected therewith and such  a
lease includes an exploring or prospecting lease.  Reference has  also  been
made to the Petroleum and Natural Gas Rules, 1959 framed under Section 5  of
the aforesaid Act.  Under Rule 4 of the said Rules no  person  can  prospect
for petroleum except pursuant  to  a  Petroleum  Exploration  License  (PEL)
granted under  the  Rules  and  no  person  can  mine  petroleum  except  in
pursuance of a Petroleum Mining License (PML)  granted under the Rules.   It
is pointed out that under Rule 7 of the Rules of  1959  a  petroleum  mining
license   (PML)  entitles  the  licensee  to  carry  out  construction   and
maintenance in and  on  such  land,  works,  buildings,  plants,  waterways,
roads, pipelines etc. as may be necessary for full  enjoyment  of  the  PML.
On the said basis it is argued that  rendering  any  service  in  connection
with prospecting and extraction is an integral part of mining and  that  the
expression “mining” in the Explanation 2 to Section 9(1) of the  Income  Tax
Act, in the absence of any definition under the Income Tax Act,  has  to  be
understood  as  per  the  provisions  of  the  Oil  Fields  (Regulation  and
Development) Act, 1948 read with the Petroleum and Natural Gas Rules, 1959.

12.   Opposing the contentions advanced on behalf of  the  appellants,  Shri
Gurukrishna Kumar, learned senior counsel   for the Revenue has  urged  that
the opinion of the Attorney General relied upon and the  CBDT  Circular  has
no relevance to the present case inasmuch as  the  agreements  between  ONGC
and the non-resident companies made it abundantly clear that what  is   paid
to the non-resident  company  are  fees  for  technical  services  rendered.
Though  such  services  may  have  some  connection  with  the  prospecting,
extraction or production of mineral oil, the  primary  service  rendered  by
the non-resident companies on  the  basis  of  the  agreements  is  not  for
prospecting, extraction or production of mineral oil but  various  ancillary
services like training of personnel etc. which may have  a  somewhat  remote
connection with the business of prospecting, exploration  or  production  of
mineral oils.  Learned counsel for the revenue has even  suggested  that  if
it is held that the High Court ought to  have  examined  each  agreement  or
contract to find out its real purpose and intent the revenue would  have  no
objection if the matters are remanded for a complete exercise to be made  on
the above basis.

13.   The Income Tax  Act  does  not  define  the   expressions  “mines”  or
“minerals”.  The said expressions are found defined  and  explained  in  the
Mines Act, 1952 and the Oil Fields (Development and  Regulation)  Act  1948.
While construing the somewhat pari  materia  expressions  appearing  in  the
Mines and Minerals (Development and Regulation) Act 1957 regard must be  had
to the provisions of Entries 53 and 54 of List I and Entry 22 of List II  of
the 7th Schedule to the Constitution to understand the exclusion of  mineral
oils from the definition of minerals  in  Section  3(a)  of  the  1957  Act.
Regard must also be had to the fact that mineral oils is separately  defined
in Section 3(b) of the 1957 Act to include  natural  gas  and  petroleum  in
respect of which Parliament has exclusive jurisdiction  under  Entry  53  of
List I of the 7th Schedule and had enacted an earlier legislation  i.e.  Oil
Fields (Regulation and Development) Act, 1948.   Reading  Section  2(j)  and
2(jj) of the Mines Act,  1952  which  define  mines  and  minerals  and  the
provisions  of  the  Oil  Fields  (Regulation  and  Development)  Act,  1948
specifically relating  to  prospecting  and  exploration  of  mineral  oils,
exhaustively referred to earlier,  it  is  abundantly  clear  that  drilling
operations for the purpose of production of petroleum would  clearly  amount
to a mining activity  or  a  mining  operation.   Viewed  thus,  it  is  the
proximity of the works contemplated under an agreement, executed with a non-
resident assessee or a foreign  company,  with  mining  activity  or  mining
operations that would be crucial  for  the  determination  of  the  question
whether the payments made  under  such  an  agreement  to  the  non-resident
assessee or the foreign  company is to be assessed under  Section   44BB  or
Section 44D of the Act.  The test of pith and  substance  of  the  agreement
commends to us as reasonable for acceptance.  Equally important is the  fact
that the CBDT had accepted the said test and had in fact issued  a  circular
as far back as 22.10.1990 to the  effect  that  mining  operations  and  the
expressions “mining projects” or “like projects” occurring in Explanation  2
to Section 9(1) of the Act would cover rendering of service  like  imparting
of training and carrying out drilling  operations  for  exploration  of  and
extraction of oil and  natural  gas  and  hence  payments  made  under  such
agreement to a non-resident/foreign  company  would  be  chargeable  to  tax
under the provisions of Section 44BB and not Section 44D of  the  Act.    We
do not see how any other  view  can  be  taken  if  the  works  or  services
mentioned  under  a  particular  agreement   is   directly   associated   or
inextricably  connected  with  prospecting,  extraction  or  production   of
mineral oil.  Keeping in mind the above provision, we have looked into  each
of the contracts involved in the present group of cases and  find  that  the
brief description of the works covered under each of the said  contracts  as
culled out by the appellants and placed before the Court  is  correct.   The
said details are set out below.

|S. No. |Civil   |Work covered under the contract              |
|       |Appeal  |                                             |
|       |No.     |                                             |
|       |4321    |Drilling of exploration wells and carrying   |
|       |        |out seismic surveys for exploratory drilling.|
|       |740     |Drilling, furnishing personnel for manning,  |
|       |        |maintenance and operation of drilling rig and|
|       |        |training of personnel.                       |
|       |731     |Drilling, furnishing personnel for manning,  |
|       |        |maintenance and operation of drilling rig and|
|       |        |training of personnel.                       |
|       |        |                                             |
|       |1722    |Furnishing supervisory staff with expertise  |
|       |        |in operation and management of Drilling unit.|
|       |729     |Capping including subduing of well, fire     |
|       |        |fighting.                                    |
|       |738     |Capping including subduing of well, fire     |
|       |        |fighting.                                    |
|       |1528    |Analysis of data to prepare job design,      |
|       |        |procedure for execution and details regarding|
|       |        |monitoring.                                  |
|       |1532    |Study for selection of enhanced Oil Recovery |
|       |        |processes and conceptual design of Pilot     |
|       |        |Tests.                                       |
|       |1520    |Engineering and technical support to ONGC in |
|       |        |implementation of Cyclic Steam Stimulation in|
|       |        |Heavy Oil Wells.                             |
|       |2794    |Assessment and processing of seismic data    |
|       |        |along with engineering and technical support |
|       |        |in implementation of Cyclic Steam            |
|       |        |Stimulation.                                 |
|       |1524    |Conducting reservoir stimulation studies in  |
|       |        |association with personnel of ONGC.          |
|       |1535    |Laboratory testing under simulated reservoir |
|       |        |conditions.                                  |
|       |1514    |Consultancy for optimal exploitation of      |
|       |        |hydrocarbon resources.                       |
|       |2797    |Consultancy for all aspects of Coal Bed      |
|       |        |Methane.                                     |
|       |6174    |Analysis of data of wells to prepare a job   |
|       |        |design.                                      |
|       |        |                                             |
|       |1517    |Geological study of the area and analysis of |
|       |        |seismic information reports to design 2      |
|       |        |dimensional seismic surveys.                 |
|       |7226    |Opinion on hydrocarbon resources and         |
|       |        |foreseeable potential.                       |
|       |7227    |Opinion on hydrocarbon resources and         |
|       |        |foreseeable potential.                       |
|       |7230    |Opinion on hydrocarbon resources and         |
|       |        |foreseeable potential.                       |
|       |6016    |Opinion on hydrocarbon resources and         |
|       |        |foreseeable potential.                       |
|       |6008    |Evaluation of ultimate resource potential and|
|       |        |presentations outside India in connection    |
|       |        |with promotional activities for Joint Venture|
|       |        |Exploration program.                         |
|       |1531    |Review of sub-surface well data, provide     |
|       |        |repair plan of wells  and supervise repairs. |
|       |733     |Repair of gas turbine, gas control system and|
|       |        |inspection of gas turbine and generator.     |
|       |741     |Repair and inspection of turbines.           |
|       |737     |Repair, inspection and overhauling of        |
|       |        |turbines.                                    |
|       |736     |Inspection, engine performance evaluation,   |
|       |        |instrument calibration and inspection of far |
|       |        |turbines.                                    |
|       |1522    |Replacement of choke and kill consoles on    |
|       |        |drilling rigs.                               |
|       |1521    |Inspection of gas generators.                |
|       |1515    |Inspection of rigs.                          |
|       |2012    |Inspection of generator.                     |
|       |1240    |Inspection of existing control system and    |
|       |        |deputing engineer to attend to any problem   |
|       |        |arising in the machines.                     |
|       |1529    |Inspection of drilling rig and verification  |
|       |        |of reliability of control systems in the     |
|       |        |drilling rig.                                |
|       |2008    |Expert advice on the device to clean insides |
|       |        |of a pipeline.                               |
|       |2795    |Feasibility study of rig to assess its       |
|       |        |remaining useful life and to carry out       |
|       |        |structural alterations.                      |
|       |925     |Engineering analysis of rig.                 |
|       |1519    |Imparting training on cased hold production  |
|       |        |log evaluation and analysis.                 |
|       |1533    |Training on well control.                    |
|       |1518    |Training on implementation of Six Sigma      |
|       |        |concepts.                                    |
|       |1516    |Training on implementation of Six Sigma      |
|       |        |concepts.                                    |
|       |6023    |Training on Drilling project management.     |
|       |2796    |Training in Safety Rating System and         |
|       |        |assistance in development and audit of Safety|
|       |        |Management System.                           |
|       |1239    |To develop technical specification for 3D    |
|       |        |Seismic API modules of work and to prepare   |
|       |        |bid packages.                                |
|       |1527    |Supply supervision and installation of       |
|       |        |software which is used for analysis of flow  |
|       |        |rate of mineral oil to determine reservoir   |
|       |        |conditions.                                  |
|       |1523    |Supply, installation and familiarization of  |
|       |        |software for processing seismic data.        |

      The above facts would indicate that the pith and substance of each  of
the  contracts/agreements  is  inextricably  connected   with   prospecting,
extraction or production of mineral oil.  The dominant purpose  of  each  of
such agreement is for prospecting, extraction or production of mineral  oils
though there may be certain ancillary  works  contemplated  thereunder.   If
that be so, we will have no hesitation in holding that the payments made  by
ONGC and received by the non-resident assessees or foreign  companies  under
the said contracts is more appropriately assessable under the provisions  of
Section 44BB and not Section 44D of the Act.   On  the  basis  of  the  said
conclusion reached by us,  we  allow  the  appeals  under  consideration  by
setting aside the orders of the High Court  passed  in  each  of  the  cases
before  it  and  restoring  the  view  taken  by   the   learned   Appellate
Commissioner as affirmed by the learned Tribunal.

14.   Consequently, all the appeals are allowed with  no  order  as  to  the
costs.
                                                          …….…………………………...J.
                                               [RANJAN GOGOI]


                                                            …………………………….……J.
                                           [PINAKI CHANDRA GHOSE]

NEW DELHI;
JULY 01, 2015.

-----------------------
[1]    (1981) 4 SCC 173

Whether an interlocutory application is maintainable for permission of GPA to represent and depose on behalf of one of the party before the family court and any advocate of the choice of party to make available the skype facility for the court to interact with the party as he is in abroad - their lordships hled that Family Court to entertain the I.A. as it is maintainable and permit the GPA of the 2nd petitioner in O.P. to represent and depose on behalf of the 2nd petitioner in the O.P. and the Family Court shall also direct such GPA or any legal practitioner chosen by him to make available the skype facility for the Court to interact with the 2nd petitioner, who is staying at Melbourne, Australia and record the consent of 2nd petitioner and proceed with the matter thereafter as expeditiously as is possible.-2015 Telangana & A. P.msklawreports

The petitioner herein is the husband and the respondent is his
wife.  Both of them have filed the aforesaid O.P.No.1547 of 2014
under Section 13-B of Hindu Marriage Act, 1955, for dissolution of
their marriage performed on 22.08.2010 by a decree of divorce by
mutual consent. 

The 1st petitioner in the O.P., who is the respondent herein, has
been attending to the proceedings by appearing before the Family
Court. 
However, the father of the 2nd petitioner, who holds the
General Power of Attorney (GPA) of the 2nd petitioner/husband in the
O.P., filed an interlocutory application bearing SR.No.2216 of 2015
on 09.04.2015 before the Family court to receive the chief affidavit of
PW.2/petitioner No.2, duly dispensing with the personal appearance
of the 2nd petitioner before the Family Court.  
The 2nd petitioner has sworn to a detailed affidavit and got it notarized by
a notary public of South Melbourne, Australia.  
That interlocutory
application has been returned with a cryptic order dated 09.04.2015,
which reads as under:
      Petition is returned as not maintainable.
      It is against this order the present revision is filed.

whether a GPA holder can represent a party in Family Court O.P. and
also depose on behalf of his principal.

 in K. BHARATHY, GUDIVADA AND     
ANOTHER v. AUTHORITY UNDER SECTION 50 OF A.P.S.E.          
ACT- CUM-LABOUR OFFICER, MACHILIPATNAM AND            
ANOTHER (1999 (3) ALD 420) and contended that no person    
holding a Power of Attorney can examine himself as a witness
and hence, the evidence brought on record through the
Special Power of Attorney holder, viz., PW-1 should be
eschewed and since the petitioner has not examined herself,
the above petition should be dismissed.
       Hence, the question as to 
whether a Power of Attorney
holder can be examined as a witness requires a deeper
consideration.

 Therefore, the contention
canvassed by the learned counsel for the Respondent placing
reliance upon a judgment in K. BHARATHY, GUDIVADA AND      
ANOTHER case cited (1 supra), is not tenable.  It is altogether
a different thing that a Power of Attorney holder is not liable to
be granted permission to plead in a Court, which is an
exercise, regulated by Section 32 of the Advocates Act, while
the act of deposing as a witness on behalf of the Principal, is
not such a regulated exercise. Therefore, the correct way to
understand the judgment in K. BHARATHY, GUDIVADA AND       
ANOTHER case cited (1 supra) is that the power of attorney
holder is not entitled to plead on behalf of the Principal, but
he can only lead evidence or settle the pleading in the form of
a plaint or written statement or petition.

      In view of the above clear cut pronouncement, it is evident that
a GPA holder can depose and also lead evidence on behalf of his
principal.

whether the Family Court can entertain an
application presented by a legal practitioner in view of the provision
contained in Section 13 of the Family Courts Act, 1984.

 Keeping the very object behind the Family Courts Act, 1984,
read with the spirit behind Section 13-B of the Hindu Marriage Act,
the Family Court could have entertained the interlocutory application
in as much as legal practitioners are not totally forbidden from
rendering assistance to the Family Court. 
  Increasingly Family Courts have been noticing that one of the
parties is stationed abroad.  It may not be always possible for such
parties to undertake trip to India, for variety of good reasons.  On the
intended day of examination of a particular party, the proceedings
may not go on, or even get completed possibly, sometimes due to pre-
occupation with any other more pressing work in the Court.  But,
however, technology, particularly, in the Information sector has
improved by leaps and bounds.  Courts in India are also making
efforts to put to use the technologies available.  Skype is one such
facility, which is easily available.  Therefore, the Family Courts are
justified in seeking the assistance of any practicing lawyer to provide
the necessary skype facility in any particular case.  For that purpose,
the parties can be permitted to be represented by a legal practitioner,
who can bring a mobile device.  By using the skype technology,
parties who are staying abroad can not only be identified by the
Family Court, but also enquired about the free will and consent of
such party.  This will enable the litigation costs to be reduced greatly
and will also save precious time of the Court.  Further, the other
party available in the Court can also help the Court in not only
identifying the other party, but would be able to ascertain the
required information.  Accordingly, I direct the Family Court to
entertain the I.A. as it is maintainable and permit the GPA of the 2nd
petitioner in O.P. to represent and depose on behalf of the 2nd
petitioner in the O.P. and the Family Court shall also direct such GPA
or any legal practitioner chosen by him to make available the skype
facility for the Court to interact with the 2nd petitioner, who is staying
at Melbourne, Australia and record the consent of 2nd petitioner and
proceed with the matter thereafter as expeditiously as is possible.
      Accordingly, the civil revision petition is allowed.  No order as
to costs.
        Consequently, the miscellaneous petitions, if any pending shall
also stand closed.

The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction the bank branch of the payee, where the payee presents the cheque for payment, is situated.”. 4. In the principal Act, after section 142, the following section shall be inserted, ‘‘142A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or directions of any court, all cases arising out of section 138 which were pending in any court, whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Act, 2015, shall be transferred to the court having jurisdiction under sub-section (2) of section 142 as if that sub-section had been in force at all material times.

The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction the bank branch of the payee, where the payee presents the cheque for payment, is situated.”. 4. In the principal Act, after section 142, the following section shall be inserted, ‘‘142A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any judgment, decree, order or directions of any court, all cases arising out of section 138 which were pending in any court, whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Act, 2015, shall be transferred to the court having jurisdiction under sub-section (2) of section 142 as if that sub-section had been in force at all material times.

EXTRAORDINARY

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PART II — Section 2

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PUBLISHED BY AUTHORITY

lañ 24] ubZ fnYyh] cq/kokj] ebZ 6] 2015@oS'kk[k 16] 1937 1⁄4'kd1⁄2

No. 24] NEW DELHI, WEDNESDAY, MAY 6, 2015/VAISAKHA 16, 1937 (SAKA)

bl Hkkx esa fHkUu i`"B la[;k nh tkrh gS ftlls fd ;g vyx ladyu ds :i esa j[kk tk ldsA

Separate paging is given to this Part in order that it may be filed as a separate compilation.

LOK SABHA

————

The following Bill was introduced in Lok Sabha on 6th May, 2015:—

BILL NO. 151 OF 2015

A Bill further to amend the Negotiable Instruments Act, 1881.

26 of 1881. Amendment

BE it enacted by Parliament in the Sixty-sixth Year of the Republic of India as follows:—

1. (1) This Act may be called the Negotiable Instruments (Amendment) Act, 2015.

 (2) It shall come into force on such date as the Central Government may, by notification

Provided that different dates may be appointed for different provisions of this Act and

any reference in any such provision to the commencement of this Act shall be construed as

a reference to the coming into force of that provision.

2. In the Negotiable Instruments Act,1881 (hereinafter referred to as the principal Act),

2 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

(i) in the Explanation I, for clause (a), the following clause shall be substituted,

‘(a) ‘‘a cheque in the electronic form” means a cheque drawn in electronic

medium by using any computer resource and signed in a secure system with

digital signature (with or without biometrics signature) and asymmetric crypto

system or electronic signature, as the case may be;’;

(ii) after Explanation II, the following Explanation shall be inserted, namely:—

same meanings as assigned to those expressions in the Information Technology

 3. In the principal Act, section 142 shall be numbered as sub-section (1) thereof and

after sub-section (1) as so numbered, the following sub-section shall be inserted, namely:—

“(2) The offence under section 138 shall be inquired into and tried only by a

court within whose local jurisdiction the bank branch of the payee, where the payee

presents the cheque for payment, is situated.”.

4. In the principal Act, after section 142, the following section shall be inserted,

‘‘142A. (1) Notwithstanding anything contained in the Code of Criminal

Procedure, 1973 or any judgment, decree, order or directions of any court, all cases

arising out of section 138 which were pending in any court, whether filed before it, or

transferred to it, before the commencement of the Negotiable Instruments (Amendment)

Act, 2015, shall be transferred to the court having jurisdiction under sub-section (2)

of section 142 as if that sub-section had been in force at all material times.

(2) Notwithstanding anything contained in sub-section (2) of section 142 or

sub-section (1), where the payee or the holder in due course, as the case may be, has

filed a complaint against the drawer of a cheque in the court having jurisdiction under

sub-section (2) of section 142 or the case has been transferred to that court under

sub-section (1), all subsequent complaints arising out of section 138 against the same

drawer shall be filed before the same court irrespective of whether those cheques were

presented for payment within the territorial jurisdiction of that court.

(3) If, on the date of the commencement of the Negotiable Instruments

(Amendment) Act, 2015, more than one prosecution filed by the same person against

the same drawer of cheques is pending before different courts, upon the said fact

having been brought to the notice of the court, such court shall transfer the case to

the court having jurisdiction under sub-section (2) of section 142 before which the

first case was filed as if that sub-section had been in force at all material times.’’.

“Explanation III.—The expressions used in this section shall have the

SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 3

STATEMENT OF OBJECTS AND REASONS

The Negotiable Instruments Act, 1881 was enacted to define and amend the law relating

to Promissory Notes, Bills of Exchange and Cheques. The Banking, Public Financial

Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 inserted in the

Negotiable Instruments Act, 1881 (hereinafter called the said Act), a new Chapter XVII,

comprising sections 138 to 142 with effect from 1st April, 1989. Section 138 of the said Act

provides for penalties in case of dishonour of cheques due to insufficiency of funds in the

account of the drawer of the cheque.

2. As sections 138 to 142 of the said Act were found deficient in dealing with dishonour

of cheques, the Negotiable Instruments (Amendment and Miscellaneous Provisions)

Act, 2002, inter alia, amended sections 138, 141 and 142 and inserted new sections 143 to

147 in the said Act aimed at speedy disposal of cases relating to dishonour of cheque

through their summary trial as well as making them compoundable. Punishment provided

under section 138 too was enhanced from one year to two years. These legislative reforms

are aimed at encouraging the usage of cheque and enhancing the credibility of the instrument

so that the normal business transactions and settlement of liabilities could be ensured.

3. The Supreme Court, in its judgment dated 1st August, 2014, in the case of Dashrath

Rupsingh Rathod versus State of Maharashtra and another (Criminal Appeal No. 2287 of

2009), held that the territorial jurisdiction for dishonour of cheques is restricted to the court

within whose local jurisdiction the offence was committed, which in the present context is

where the cheque is dishonoured by the bank on which it is drawn. The Supreme Court has

directed that only those cases where, post the summoning and appearance of the alleged

accused, the recording of evidence has commenced as envisaged in section 145(2) of the

Negotiable Instruments Act, 1881, will proceeding continue at that place. All other complaints

(including those where the accused/respondent has not been properly served) shall be

returned to the complainant for filing in the proper court, in consonance with exposition of

the law, as determined by the Supreme Court.

4. Pursuant to the judgment of the Supreme Court, representations have been made

to the Government by various stakeholders, including industry associations and financial

institutions, expressing concerns about the wide impact this judgment would have on the

business interests as it will offer undue protection to defaulters at the expense of the aggrieved

complainant; will give a complete go-by to the practice /concept of 'Payable at Par cheques'

and would ignore the current realities of cheque clearing with the introduction of CTS

(Cheque Truncation System) where cheque clearance happens only through scanned image

in electronic form and cheques are not physically required to be presented to the issuing

branch (drawee bank branch) but are settled between the service branches of the drawee

and payee banks; will give rise to multiplicity of cases covering several cheques drawn on

bank(s) at different places; and adhering to it is impracticable for a single window agency

with customers spread all over India.

5. To address the difficulties faced by the payee or the lender of the money in filing

the case under section 138 of the said Act, because of which, large number of cases are

stuck, the jurisdiction for offence under section 138 has been clearly defined. The Negotiable

Instruments (Amendment) Bill, 2015 provides for the following, namely:-—

branch of the payee, where the payee presents the cheque for payment, is

(i) filing of cases only by a court within whose local jurisdiction the bank

4 THE GAZETTE OF INDIA EXTRAORDINARY [PART II—

a cheque in the court having jurisdiction under the new scheme of jurisdiction,

all subsequent complaints arising out of section 138 of the said Act against the

same drawer shall be filed before the same court, irrespective of whether those

cheques were presented for payment within the territorial jurisdiction of that

(ii) stipulating that where a complaint has been filed against the drawer of

(iii) stipulating that if more than one prosecution is filed against the same

drawer of cheques before different courts, upon the said fact having been brought

to the notice of the court, the court shall transfer the case to the court having

jurisdiction as per the new scheme of jurisdiction; and

meaning of expression "a cheque in the electronic form", as the said meaning is

found to be deficient because it presumes drawing of a physical cheque, which

is not the objective in preparing "a cheque in the electronic form" and inserting

a new Explanation III in the said section giving reference of the expressions

contained in the Information Technology Act, 2000.

6. It is expected that the proposed amendments to the Negotiable Instruments

Act, 1881 would help in ensuring that a fair trial of cases under section 138 of the said

Act is conducted keeping in view the interests of the complainant by clarifying the

territorial jurisdiction for trying the cases for dishonour of cheques.

7. The Bill seeks to achieve the above objects.

(iv) amending Explanation I under section 6 of the said Act relating to the

NEW DELHI; ARUN JAITLEY.

SEC. 2] THE GAZETTE OF INDIA EXTRAORDINARY 5

EXTRACT FROM THE NEGOTIABLE INSTRUMENTS ACT, 1881

ANNEXURE

(26 OF 1881)

* * * * *

6. * * * *

Explanation I.—For the purposes of this section, the expressions—

mirror image of a paper cheque, and is generated, written and signed in a secure

system ensuring the minimum safety standards with the use of digital signature (with

or without biometrics signature) and asymmetric crypto system;

* * * * *

(a) “a cheque in the electronic form” means a cheque which contains the exact

————

ANOOP MISHRA

Secretary General

PRINTED BY THE GENERAL MANAGER, GOVERNMENT OF INDIA PRESS, MINTO ROAD, NEW DELHI

GMGIPMRND—930GI(S3)—08-05-2015.

AND PUBLISHED BY THE CONTROLLER OF PUBLICATIONS, DELHI—2015.

Section 302 or/and Section 304 Part I. It is apart from the fact that the State has not filed any appeal against the impugned order seeking conviction of the appellant under Section 302 or under Section 304 Part I or even for enhancement of punishment awarded to the appellant under Section 304 Part II.=We are not impressed by the submission of the learned counsel for the appellant when he urged that since the co-accused was acquitted of the charges, hence the benefit of the same be also extended to the appellant. 24. As held above, the evidence on record in no uncertain terms proves that it was the appellant who was the aggressor and hit the deceased. This evidence was rightly made basis by the two courts to hold the appellant guilty for committing the offence in question. When the evidence directly attributes the appellant for commission of the act then we fail to appreciate as to how and on what basis we can ignore this material evidence duly proved by the eyewitnesses. Such was not the case so far as co-accused is concerned. The prosecution witnesses too did not speak against the co- accused and hence he was given the benefit of doubt. It is pertinent to mention that the State did not file any appeal against his acquittal and hence that part of the order has attained finality. 25. Now coming to the issue of conviction and sentence awarded under Section 304 Part II of IPC to the appellant, though arguments were advanced by the learned counsel for the appellant for its conversion under Section 323/325 of IPC or in the alternative to reduce the quantum of sentence to the extent of appellant already undergone i.e. three years, we are not inclined to accept the submission of learned counsel even on this issue. 26. In our considered opinion, having regard to the nature of injury caused by the appellant to the deceased and the manner in which it was caused and taking into account the cause of death - shock and hemorrhage, the Courts below were justified in bringing the case under Section 304 part II instead of bringing the same either under Section 302 or/and Section 304 Part I. It is apart from the fact that the State has not filed any appeal against the impugned order seeking conviction of the appellant under Section 302 or under Section 304 Part I or even for enhancement of punishment awarded to the appellant under Section 304 Part II. 27. In any event, we find that punishment of five years appears to be just and proper. It could have been even more because eventually the incident resulted in death of a person though the appellant did not intend to cause death of deceased. In the absence of any cross appeal by the State on the issue of quantum of sentence, we do not therefore consider it to be proper to go into the question of adequacy of sentence in this appeal filed by the accused. 28. In the light of foregoing discussion, we find no merit in this appeal which thus fails, and is accordingly dismissed. As a result, the conviction and sentence awarded to the appellant by the courts below is upheld. 29. The appellant is accordingly directed to undergo remaining period of sentence. If the appellant is on bail, his bail bonds are cancelled to enable him to surrender and undergo remaining period of sentence. 30. A copy of the order be sent to concerned court for compliance.

            REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL No.86 OF 2013


      Jagtar Singh                                 Appellant(s)


                             VERSUS


State of Haryana                  Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1.    This appeal is filed by the accused against  the  final  judgment  and
order dated 22.12.2009 passed by the High Court of  Punjab  and  Haryana  at
Chandigarh in Criminal Appeal No. 910-SB of 1998 which arose from the  order
of conviction and sentence  dated  06.10.1998  and  07.10.1998  respectively
passed  by  the  Sessions  Judge,  Karnal  in  Sessions  Case  No.   37   of
1996/Session Trial No. 9  of  1997  convicting  the  accused  persons  under
Section 304 Part II read with Section 34 of  the  Indian  Penal  Code,  1860
(hereinafter  referred  to  as  “IPC”)  and  sentencing  them   to   undergo
imprisonment for five years and  to  pay  a  fine  of  Rs.1000/-  each.   By
impugned judgment, the High Court dismissed the appeal  in  respect  of  the
present appellant–accused by  upholding  his  conviction  and  sentence  and
allowed the appeal in respect of the co-accused by  acquitting  him  of  the
charge.
2.    Facts of the case need  mention  in  brief  to  appreciate  the  issue
involved in this appeal.
3.    Harwant Singh/Harbans Singh, (PW-3)-first informant  and  the  accused
persons are related to each other.  Kapoor Singh  (since  deceased),  father
of PW-3 was having three brothers, namely,  Amar  Singh,  Gurnam  Singh  and
Surinder Singh.   The accused persons–Ajaib Singh and  Jagtar  Singh  -  the
appellant herein are sons of Gurnam Singh.   Amar  Singh  and  Gurnam  Singh
have expired.   The family of these  persons  owned  extensive  agricultural
land. The  forefathers  of  the  parties  had,  therefore,  partitioned  the
agricultural land verbally amongst the family members  and  accordingly  all
sharers were cultivating their respective share.
4.    In the year 1991, the  appellant-accused  and  his  brother  raised  a
grievance to PW-3 that the land which was allotted to them was not  of  good
quality. PW-3, acceded to their request and  exchanged  his  land  with  the
accused persons.  The parties accordingly executed the exchange  deed  on  a
written document before the Panchayat in  relation  to  exchange  of  lands.
However, the girdawari in respect of the exchanged land  remained  unaltered
and both the parties continued to cultivate their exchanged land. PW-3  then
made improvements in the land which was in his possession by  investing  his
money and labour.  On finding that the land had been improved by  PW-3,  the
appellant and his brother raised a  demand  to  reverse  the  exchange.   On
noticing that this might lead to a dispute, PW-3 applied for  correction  of
the girdawari entries in  revenue  records.   The  Tehsildar,  Nilokheri  on
31.07.1996, visited the spot to enable him to  pass  appropriate  orders  on
adjudication of the application.
5.      On  20.09.1996,  when  PW-3  went  to  the  Court  to   attend   the
proceedings, his uncle Surinder Singh and Gurmeet Singh, son of  Amar  Singh
also accompanied him.  The Tehsildar passed the order  in  favour  of  PW-3.
At about 5.15 p.m.,  when  they  were  coming  out  of  the  office  of  the
Tehsildar, the appellant and his brother came there and caught hold of  PW-3
and said that the verdict of the revenue officer is  wrong  and,  therefore,
they would not allow him to enter  the  land  in  question.   When  Surinder
Singh tried to intervene, Jagtar Singh, the appellant-accused herein  caught
hold of the beard of Surinder Singh and pulled him down on  the  ground  and
hit him on his head 2-3 times by hand. Due to  injuries  received,  Surinder
Singh became unconscious.  PW-3 and his cousin-Gurmeet Singh then  tried  to
catch hold of the accused persons but they managed  to  run  away  from  the
spot. Both of them then took Surinder  Singh  to  the  nearest  hospital  at
Nilokheri but in midway, he died.  Thereafter, PW-3 lodged  an  FIR  bearing
No.404  dated  20.09.1996  at  P.S.  Butana,  Dist.  Karnal  under   Section
302/341/34 IPC of the incident.
6.     After investigation, on 07.10.1996, charge sheet against the  accused
persons, namely, Jagtar Singh-appellant (accused) herein  and  Ajaib  Singh,
was filed under Section 302/341/34 IPC.
7.    By order dated 16.11.1996, the Judicial Magistrate-1st  Class,  Karnal
committed the case for  trial  to  the  Sessions  Judge,  Karnal  which  was
numbered as Session Case No. 37 of 1996 (Session Trial No.9 of  1997).   The
prosecution examined six witnesses  to  prove  their  case  whereas  defence
examined one witness and filed certain documents.
8.    By order dated  06.10.1998  in  Sessions  Case  No.  37  of  1996  and
Sessions Trial No. 9 of 1997 convicted both the accused  under  Section  304
Part-II read with  Section  34  of  IPC  and  vide  order  dated  07.10.1998
sentenced them to undergo imprisonment for five years and to pay a  fine  of
Rs.1000/-  each,  in  default  of  payment  of  fine  to   further   undergo
imprisonment for six months under Section 304 Part II read with  Section  34
of IPC.
9.    Aggrieved by the said order, the accused persons filed appeal  bearing
Appeal No. 910-SB of 1998  before  the  High  Court.   The  High  Court,  by
judgment  dated  22.12.2009  dismissed  the  appeal  of   Jagtar   Singh-the
appellant (accused) herein and in consequence upheld his conviction  whereas
while allowing the appeal filed by Ajaib Singh,  co-accused,  set  side  his
conviction and acquitted him of the charges.
10.   Feeling aggrieved, Jagtar Singh (accused) has  filed  this  appeal  by
way of special leave.
11.   Heard Mr. Akshat Goel, learned counsel for the  appellant-accused  and
Dr. Monika Gusain, learned counsel for the State.
12.   Challenging the conviction  and  sentence,  learned  counsel  for  the
appellant-accused has submitted that:
there was neither any motive on the part of accused to  commit  the  offence
in question and nor there was any incident of any type in  the  past  during
the course of proceedings.
 (ii) in any case, since there was only one simple injury found on the  body
of the deceased and no weapon was used to inflict such  injury,  the  courts
below erred in convicting the appellant for  an  offences  punishable  under
Section 304 Part II of IPC.
(iii) even if the case against the appellant-accused is held proved  yet  at
best it is punishable under Section 323/325  of IPC.
(iv)  the statement of the eyewitnesses are not trustworthy  and  hence  the
Court below erred in placing reliance on their testimony.
(v)    In any event,  the  High  Court  having  rightly  acquitted  the  co-
accused, the same benefit should have been extended to the appellant and  he
too should have been acquitted on the same reasoning
(vi) and lastly since the appellant has already  undergone  sentence  for  a
period around 3 years or so out of total sentence awarded to him  and  hence
the  appellant  be  now  left  with  the  sentence  already   undergone   by
appropriately reducing the quantum of sentence.
13.   In contra, learned counsel for the respondent-State contended that  no
case is made out for any interference in the concurrent conviction  recorded
by the two Courts below.  He urged that  none  of  the  submissions  of  the
appellant-accused has any substance.
14.   Having heard learned counsel for the parties and  on  perusal  of  the
record of the case, we find no merit  in  any  of  the  submissions  of  the
appellant-accused.
15.   The High Court dealt with the case of  appellant  herein  for  holding
him guilty as under:
“The same is, however, not true in case of appellant  Jagtar  Singh.   There
is  clear,  clinching  and  unambiguous  evidence  on  the  record,  in  the
statements of PW-3-Harbans Singh and PW-4 Gurmeet Singh to the  effect  that
it was he who caught hold of Surinder Singh, deceased by latter’s beard  and
hair, felled him upon ground and  hit  his  head  twice  or  thrice  against
ground.   It  was  on  account  of  that  hit  that  Surinder  Singh  became
unconscious on  the  spot.   Though  appellant  Jagtar  Singh  did  make  an
attempt, abortive though, to raise above indicated plea  (in  the  statement
under Section 313 Cr.P.C.) but that plea does not stand  proved  on  record.
If there was an iota of truth in the above noticed plea of appellant  Jagtar
Singh (to the effect that matter was under discussion  in  the  presence  of
certain common relations), there is no reason why he could  not  have  named
them or examined at least one or two  out  of  them  at  the  trial.   Their
testimony could be supportive of the plea raised by Jagtar  Singh  appellant
at the trial.”

16.   We have also on our part perused the ocular  evidence  and  having  so
perused are inclined to concur with the  aforementioned  view  of  the  High
Court calling no interference.
17.   The evidence, in our opinion, does prove that  it  was  the  appellant
who took the lead, caught hold of deceased by his hand, pulled him  down  to
the ground and hit him on his head. The injury  in  the  head  resulted  the
deceased first becoming unconscious and later succumbed to  it.  The  ocular
evidence on this issue was properly appreciated by the trial Court  and  the
High Court for holding the appellant guilty for committing  the  offence  in
question and hence it deserves to be upheld.
18.   We have  not  been  able  to  notice  any  kind  of  inconsistency  or
exaggeration in the evidence adduced by the  prosecution  on  this  material
issue so as to disbelieve the evidence of eyewitnesses account and hence  we
concur with the finding of the  High  Court  quoted  above  and  reject  the
submission of the learned counsel for the appellant.
19.   Now so far as the issue relating to existence of motive is  concerned,
we consider it apposite to reproduce the finding of the High Court  on  this
issue.

“There also, Jagtar Singh appellant is not  on  firmer  footing.   There  is
plethora of evidence available on record to prove that the  first  informant
had filed an  application  for  correction  of  Girdawari  entries  and  the
adjudication announced on the relevant  date  by  the  revenue  officer  was
favourable to him.  There is also material available on  record  that  first
informant had improved the land which he exchanged  with  the  appellant  to
redress the grievance of the latter that the quality of the land which  fell
to their share in a partition  was  inferior.   It  was  after  the  further
exchange, as between the appellants on the one hand and PW-3  Harbans  Singh
on the other hand, that the latter had improved the quality  of  that  land.
It was obvious that the appellants entertained a  feeling  of  envy  towards
the first informant and they had an eye upon the  improved  land  under  the
cultivation  of  first  informant.   The  favourable  announcement  of   the
Girdwari correction provided the  proverbial  combustible  material  to  the
appellants who have been proved on record to have announced thereafter  that
announcement of the verdict of the  revenue  officer  notwithstanding,  they
would not allow the first informant to enter upon the land qua which  Khasra
girdwaries entries had been ordered to be corrected.   It  cannot,  thus  be
said with any justification that the appellant had no motive to  commit  the
impugned crime.”

20.   We have on our part perused the evidence on this  issue  and  find  no
case to differ with the finding of the two  courts  below.  Learned  counsel
for the appellant was also not able to show as  to  why  the  aforementioned
finding of the High Court is rendered bad in law and legally unsustainable.
21.   In our considered view, there  is  enough  evidence  both  ocular  and
documentary to prove that the motive did exist prior to  commission  of  the
crime in question. Firstly, it was not in  dispute  that  the  parties  were
related to each other; secondly, everyone had a share  in  the  lands  which
belong to their forefathers; thirdly, proceedings for  mutation  were  going
in revenue courts in relation to the lands belonging to them;  fourthly,  an
order of mutation was  passed  by  Tehsildar  in  PW-3’s  favour  which  the
accused did not like being adverse to  them  resulting  in  developing  some
grudge against PW-3 and his family members.
22.   In the light of these facts, which are duly proved by the  prosecution
with the aid of their eyewitnesses, we find no good ground  to  differ  with
the finding of the High Court and accordingly hold that there was  a  motive
to commit the offence. We accordingly hold so.
23.   We are not impressed by the submission of the learned counsel for  the
appellant when he urged that since  the  co-accused  was  acquitted  of  the
charges, hence the benefit of the same be also extended to the appellant.
24.   As held above, the evidence on record in  no  uncertain  terms  proves
that it was the appellant who was the aggressor and hit the  deceased.  This
evidence was rightly made basis by the two  courts  to  hold  the  appellant
guilty for committing the offence in question. When  the  evidence  directly
attributes the  appellant  for  commission  of  the  act  then  we  fail  to
appreciate as to how and on what basis we can ignore this material  evidence
duly proved by the eyewitnesses. Such was not the case so far as  co-accused
is concerned. The prosecution witnesses too did not speak  against  the  co-
accused and hence he was given the benefit of  doubt.  It  is  pertinent  to
mention that the State did not file any appeal  against  his  acquittal  and
hence that part of the order has attained finality.
25.   Now coming to the issue  of  conviction  and  sentence  awarded  under
Section 304 Part II of IPC to the appellant, though arguments were  advanced
by the learned counsel for the appellant for its  conversion  under  Section
323/325 of IPC or in the alternative to reduce the quantum  of  sentence  to
the extent of appellant already undergone  i.e.  three  years,  we  are  not
inclined to accept the submission of learned counsel even on this issue.
26.   In our considered opinion, having  regard  to  the  nature  of  injury
caused by the appellant to the deceased and  the  manner  in  which  it  was
caused and taking into account the cause of death -  shock  and  hemorrhage,
the Courts below were justified in bringing the case under Section 304  part
II instead of bringing the same either under Section 302 or/and Section  304
Part I. It is apart from the fact that the State has not  filed  any  appeal
against the  impugned  order  seeking  conviction  of  the  appellant  under
Section 302 or  under  Section  304  Part  I  or  even  for  enhancement  of
punishment awarded to the appellant under Section 304 Part II.
27.   In any event, we find that punishment of  five  years  appears  to  be
just and proper.  It could  have  been  even  more  because  eventually  the
incident resulted in death of a person though the appellant did  not  intend
to cause death of deceased.  In the absence  of  any  cross  appeal  by  the
State on the issue of quantum of sentence, we do not therefore  consider  it
to be proper to go into the question of adequacy of sentence in this  appeal
filed by the accused.
28.   In the light of foregoing discussion, we find no merit in this  appeal
which thus fails, and is accordingly dismissed. As a result, the  conviction
and sentence awarded to the appellant by the courts below is upheld.
29.   The appellant is accordingly directed to undergo remaining  period  of
sentence. If the appellant is on bail,  his  bail  bonds  are  cancelled  to
enable him to surrender and undergo remaining period of sentence.
30.   A copy of the  order  be  sent  to  concerned  court  for  compliance.


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


               …………..................................J.
                             [ABHAY MANOHAR SAPRE]

      New Delhi;
      June 19, 2015.
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