The appellants were tried, convicted and sentenced to death for commission of offences punishable under Sections 302 and 364A of the Indian Penal Code, 1860. The conviction and sentence awarded to them was affirmed by the High Court of Punjab and Haryana in appeal and eventually by this Court in Criminal Appeals No.1396-1397 of 2008. The appellants did not, however, give-up. They filed Writ Petition (Crl.) D No.15177 of 2012 before this Court for a declaration that Section 364A inserted in the IPC by Act 42 of 1993 was ultra vires the Constitution to the extent the same prescribes death sentence for anyone found guilty. = whether the provisions of Section 364A in so far as the same prescribes death or life imprisonment is unconstitutional on account of the punishment being disproportionate to the gravity of the crime committed by the appellants. Our answer to that question is in the negative. A sentence of death in a case of murder may be rare, but, if the courts have, upon consideration of the facts and evidence, found that the same is the only sentence that can be awarded, it is difficult to revisit that question in collateral proceedings like the one at hand.

                                                     REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.824 OF 2013


Vikram Singh @ Vicky & Anr.                  …Appellants

Vs.

Union of India & Ors.                        …Respondents



                               J U D G M E N T

T.S. THAKUR, J.

1.     This  appeal,  by  special  leave,  arises   in   somewhat   peculiar
circumstances. The appellants were tried, convicted and sentenced  to  death
for commission of offences punishable under Sections 302  and  364A  of  the
Indian Penal Code, 1860. The conviction and sentence  awarded  to  them  was
affirmed by the High Court of Punjab and Haryana in  appeal  and  eventually
by this Court in Criminal Appeals No.1396-1397 of 2008. The  appellants  did
not, however, give-up. They filed Writ Petition (Crl.) D  No.15177  of  2012
before this Court for a declaration that Section 364A inserted  in  the  IPC
by Act 42 of 1993 was ultra vires the Constitution to the  extent  the  same
prescribes death sentence for anyone found guilty.  The  petitioner  further
prayed for quashing the death sentence awarded  to  the  petitioner  by  the
trial court as affirmed by the High Court and  by  this  Court  in  Criminal
Appeals No.1396-1397 of  2008.  A  mandamus  directing  commutation  of  the
sentence awarded to the petitioner to imprisonment for life was also  prayed
for. The  writ  petition  was  eventually  withdrawn  with  liberty  to  the
petitioners to approach the  jurisdictional  High  Court  for  redress.  The
appellant, thereafter, moved  the  High  Court  of  Punjab  and  Haryana  at
Chandigarh in CWP No.18956 of 2012 praying  for  a  mandamus  striking  down
Section 364A of the IPC and for an order restraining the  execution  of  the
death sentence awarded to them. Reopening of the case of the appellants  and
commutation of the death  sentence  for  imprisonment  for  life  were  also
prayed for in the writ petition. A Division  Bench  of  the  High  Court  of
Punjab and Haryana has, while dismissing the said petition by  its  judgment
and order dated 3rd October, 2012, taken the view that the question  whether
Section 364A of the IPC was attracted to the case  at  hand  and  whether  a
person found guilty of an offence punishable under the  provision  could  be
sentenced to death was not only raised by  the  appellants  as  an  argument
before this Court in appeal filed  by  them,  but,  was  noticed  and  found
against them. The High Court while  saying  so  relied  upon  the  following
passage of the judgment of this Court in the appeal filed by the  appellants
against their conviction:

“…  A plain reading of the Objects and Reasons which led  to  the  amendment
shows the concern of Parliament in dealing  with  kidnapping  for  ransom  a
crime which called for a deterrent punishment, even  in  a  case  where  the
kidnapping had not resulted in the death  of  the  victim.   The  statistics
further reveal that  kidnapping  for  ransom  had  become  a  lucrative  and
thriving industry all over the country which must  be  dealt  with,  in  the
harshest possible manner and an obligation rests on Courts as well.   Courts
to lend a helping hand in that direction. In the case  before  us,  we  find
that not only was Abhi Verma kidnapped for ransom which act would by  itself
attract the death penalty but  he  was  murdered  in  the  process.   It  is
relevant that even before the aforesaid amendments, this  Court  in  Henry’s
case (supra) observed that death sentence could be awarded even  in  a  case
of kidnapping and murder based on circumstantial evidence...”



2.    The High Court further held that the question of quantum  of  sentence
had also been examined by this Court  in  the  following  paragraph  of  the
judgment delivered in the criminal appeal filed by the appellants:

“24. Some of the judgments aforesaid refer to the ongoing debate as  to  the
validity and propriety of the death sentence in  a  modern  society.   There
are the moralists who say that as God has  given  life,  he  alone  has  the
right to take it away and this privilege cannot  be  usurped  by  any  human
being.  There are others who believe  that  the  death  sentence  cannot  be
taken as a retributive or deterrent factor as the statistics show  that  the
possibility of a death sentence has never acted as a  deterrent  to  serious
crime. The theory which is widely accepted in India,  however,  is  that  as
the death penalty is on the statute book it has to be awarded  provided  the
circumstances justify it. The  broad  principle  has  been  laid  in  Bachan
Singh’s case (supra) as the “rarest of the rare cases”.  Bachan  Singh  case
has been followed by a series of judgments of  this  Court  delineating  and
setting out as to the kind of matters that would fall within this  category.
In Machhi Singh & Ors. Vs. State of Punjab 1983 (3) SCC 470 this Court  gave
an indication as to what could constitute this category…”



3.    The High Court on the above reasoning concluded that  this  Court  had
considered the nature of the offence and  its  gravity  and  held  that  the
appellants deserved the maximum punishment prescribed for both the  offences
proved against them. The High Court held that the  plea  now  sought  to  be
raised by the writ-petitioners to the effect that Section 364A  of  the  IPC
was attracted only when the offence was committed against the government  or
a foreign country etc. or that no such offence was made out in the  case  of
the petitioners, had been  examined  and  decided  against  the  petitioners
which plea could not be  re-agitated  by  them  in  collateral  proceedings.
Having said that the High Court proceeded to examine the plea raised by  the
appellants on its merit, referred to the historical background in which  the
provisions of Section 364A were added to the  statute  book  and  held  that
Section 364A of IPC, even in the form in which it was initially  introduced,
made kidnapping by any person in the circumstances  indicated  in  the  said
provision an offence no matter at the time of initial insertion  of  Section
364A, India was not committed to the International  Convention  Against  the
Taking of Hostages, 1979 to which it became a party only on  7th  September,
1994. It was only thereafter that Section 364A was  amended  to  incorporate
the  expression  “any  foreign  state  or  international  inter-governmental
organization or any other person” to honour the commitment  under  the  said
Convention. The High Court, accordingly, repelled the argument that  Section
364A was attracted only in situations where kidnapping was meant  to  coerce
the government or any international organization  to  do  or  not  to  do  a
particular act  including  the  demand  for  payment  of  ransom.  The  writ
petition was,  on  that  reasoning,  dismissed  by  the  High  Court,  which
dismissal is what is under challenge in this appeal before us.

4.    When the appeal initially came up before a  two-Judge  Bench  of  this
Court, the same was directed to be placed  before  a  larger  Bench  for  an
authoritative pronouncement  especially  because  the  appellants  had  been
awarded a death sentence which stood  affirmed  by  a  Bench  of  coordinate
jurisdiction. That is precisely how the matter has come  up  before  us  for
final hearing.

5.    Appearing for the appellants, Mr. Tripurari Ray followed by M/s  Altaf
Ahmad and R.S. Sodhi, senior advocates, who appeared  for  the  interveners,
strenuously argued that Section 364A  of  the  IPC  was  attracted  only  in
situations where an  offence  was  committed  against  the  Government,  any
foreign  State  or  international   inter-governmental   organisation.   The
provision, argued the learned counsel, had no application to  situations  in
which a victim was abducted or kidnapped for ransom demand  from  a  private
individual. The provisions of Section 364A, it was contended, were meant  to
deal with kidnapping by terrorists  for  ransom  or  where  terrorists  take
hostages with a view to compelling the Government  or  a  foreign  State  or
international inter-governmental organisation to do or  abstain  from  doing
any act including payment of ransom.

6.    On behalf of the respondents, it was contended by  Mr.  Ranjit  Kumar,
Solicitor General, that the question whether Section 364A IPC was  attracted
to the fact situation of the case at hand was examined and decided  by  this
Court  in  the  criminal  appeal  filed  by  the  appellants  against  their
conviction and sentence. The view taken by this Court in the  appeal  having
attained finality, it was not open  to  the  appellants  to  re-agitate  the
issue in collateral proceedings. Reliance in support of that submission  was
placed upon the decisions of this Court in Naresh Shridhar Mirajkar etc.  v.
State  of  Maharashtra  (AIR  1967  SC  1),  Prem  Chand  Garg   v.   Excise
Commissioner, U.P., Allahabad (AIR 1963 SC 996) and  Rupa  Ashok  Hurra   v.
Ashok Hurra and Anr. (2002) 4 SCC 388.

7.    Alternatively, it was contended that  Section  364A  of  the  IPC  was
widely worded to cover not only situations where  terrorists  take  hostages
to compel the Government or a foreign  State  or  any  international  inter-
governmental organisation but also where any person abducts or  kidnaps  the
victim for no more than compelling payment of ransom by the  family  of  the
victim. It was contended that  the  High  Court  had  rightly  analysed  the
provisions, examined the historical perspective to hold  that  Section  364A
was not  confined  only  to  cases  involving  acts  of  terrorism  but  was
attracted even in cases where the crime is committed for securing ransom.

8.    There is no gainsaying that in an appeal directed against an order  of
conviction and  sentence,  the  appellant  is  entitled  to  urge  all  such
contentions as are open to him in law and on facts. One of  the  contentions
open to the aggrieved convict in such cases  is  that  the  provision  under
which he has been convicted has no application  to  his  case  or  that  the
ingredients  of  the  offence  with  which  he  has  been  charged  are  not
established to justify his conviction. It follows that the  contention  that
Section 364A was  not  attracted  in  the  present  case  was  open  to  the
appellants and was in fact advanced on their behalf in the appeal  filed  by
them. Not only that, the contention was examined and rejected.  So  long  as
that rejection holds the field, there is no  room  for  this  Court  or  any
other court for that matter to take  a  contrary  view.  The  writ  petition
filed by the appellants to the extent the same sought to urge  that  section
364A was not attracted to the case at hand was, thus,  not  maintainable  in
law.
9.    In Rupa Ashok Hurra’s case  (supra),  a  Constitution  Bench  of  this
Court examined the options available to a  litigant  aggrieved  of  a  final
judgment/order of this Court after the  dismissal  of  the  review  petition
filed by him. This Court reviewed the case law on the subject and held  that
a final judgment/order passed  by  this  Court  cannot  be  assailed  in  an
application under Article 32 of the Constitution of India  by  an  aggrieved
person regardless whether he was or was not a party to the case. This  Court
also examined  the  competing  considerations  of  giving  finality  to  the
judgments of the Court of last resort, on the one  hand,  and  the  need  to
dispense justice on reconsideration of a judgment  on  the  other  and  held
that in rarest of rare  situations,  a  final  judgment  of  the  Court  may
require re-consideration to set right the miscarriage of justice  complained
of. In such cases it would not only be proper but even  obligatory  for  the
Court to both legally and morally rectify  the  error.  This  Court  further
held that the duty to do justice in such rarest of rare cases shall  prevail
over the policy of certainty or finality of  judgments.  The  following  two
passages from the decision are apposite:
“40. The petitioners in these writ petitions seek  re-consideration  of  the
final judgments of this Court after they have been  unsuccessful  in  review
petitions and in that these cases are different from the cases  referred  to
above. The provision of Order XL Rule 5 of  the  Supreme  Court  Rules  bars
further application for review in the same matter. The concern of the  Court
now is whether any relief can be given to the petitioners who challenge  the
final judgment of this Court, though after  disposal  of  review  petitions,
complaining of the gross abuse  of  the  process  of  Court  and  irremedial
injustice. In a State like India, governed by rule of law, certainty of  law
declared and the final decision rendered on merits  in  a  lis  between  the
parties by the highest court in the country is of paramount importance.  The
principle of finality is insisted upon not on the  ground  that  a  judgment
given  by  the  apex  Court  is  impeccable  but  on  the  maxim   "Interest
reipublicae ut sit finis litium”.

41. xxxxxxxxxx

42. The concern of this Court for rendering justice in a cause is  not  less
important than the principle of finality of its judgment. We are faced  with
competing principles - ensuring certainty and finality of a judgment of  the
Court of  last  resort  and  dispensing  justice  on  reconsideration  of  a
judgment on the ground that  it  is  vitiated  being  in  violation  of  the
principle of natural justice or giving scope for apprehension  of  bias  due
to a Judge who participated in the decision making  process  not  disclosing
his links with a party to the case or on account of abuse of the process  of
the court. Such a judgment, far from ensuring finality, will  always  remain
under the cloud of uncertainty. Almighty alone is the dispenser of  absolute
justice - a concept which is not disputed but by a few. We are of  the  view
that though Judges of the highest Court do their best, subject of course  to
the limitation of human  fallibility,  yet  situations  may  arise,  in  the
rarest of the rare cases, which would require  reconsideration  of  a  final
judgment to set right miscarriage of justice complained of. In such case  it
would not only be proper but also obligatory both  legally  and  morally  to
rectify the error. After giving our anxious consideration to  the  question,
we are persuaded to hold that the duty to do  justice  in  these  rarest  of
rare cases shall have to prevail over the policy of  certainty  of  judgment
as though it is essentially in public interest that a final judgment of  the
final court in the country should not be open to challenge,  yet  there  may
be circumstances, as mentioned above, wherein declining  to  reconsider  the
judgment would be oppressive to judicial conscience and  cause  perpetuation
of irremediable injustice.”



10.   In the case at hand, the writ petition filed by the  appellants  under
Article 32 of the Constitution of India  was  dismissed  as  withdrawn  with
liberty reserved to the appellants to approach the High Court. Even  so,  in
the light of the pronouncement of this Court  in  Rupa  Ashok  Hurra’s  case
(supra), if against a final  judgment  of  this  Court,  a  remedy  was  not
available under Article 32 of the Constitution the same would  also  not  be
available under Article 226. If this Court could not take resort to  Article
32 for reopening for examination its final judgement, the High  Court  could
also not do so under Article 226.  The  only  remedy  which  the  appellants
could resort to  in terms of the view  taken  in  Rupa  Ashok  Hurra’s  case
(supra) is by invoking this Court’s inherent powers under Articles  129  and
142 of the Constitution of India for recall,  reversal  or  modification  of
the order passed  by  this  Court  in  the  criminal  appeal  filed  by  the
appellants. A writ petition before  the  High  Court  for  that  relief  was
clearly untenable in law.
11.   Legal impediments in  the  choice  of  the  remedy  available  to  the
appellants have not dissuaded the High Court from  examining  and  answering
the contentions sought to be raised on  the  merits  of  the  case.  We  too
propose to go into the merits of the contentions  urged  on  behalf  of  the
appellants, no matter it may not be necessary to do so in the light of  what
we have said about the maintainability of the  proceedings  brought  by  the
appellants. We do so not only because the matter was argued at  considerable
length before us but also because the lives of the appellants  hang  in  the
balance.  We will, therefore,  be  loathe  in  shutting  out  the  arguments
advanced on behalf of the appellants on  a  technical  ground  touching  the
maintainability of the petition filed by the appellants.
12.   Any attempt to properly understand  the  true  scope  and  purport  of
Section 364A must, in our opinion, start with the historical  background  in
which the provision came on the statute book. When we do so,  we  find  that
the proposal for addition of Section 364A  to  the  Indian  Penal  Code  was
first modified by the Law Commission of India in its 42nd  Report  submitted
in 1971. The relevant portion of the report reads as under:

“16.100 We consider it desirable  to  have  a  specific  section  to  punish
severely kidnapping or abduction for ransom, as such cases  are  increasing.
At present, such kidnapping or abduction is  punishable  under  Section  365
since the kidnapped or abducted  person  will  be  secretly  and  wrongfully
confined.

We also considered the question whether a provision for  reduced  punishment
in case of release of the person kidnapped without harm should be  inserted,
but we have come to the conclusion that there is no need for it. We  propose
the following section:-

“364A. Kidnapping or abduction for ransom – Whoever kidnaps or  abducts  any
person with intent to hold that person for ransom  shall  be  punished  with
rigorous imprisonment for a term which may extend to  14  years,  and  shall
also be liable to fine.”

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                                 Chapter 25

                         SUMMARY OF RECOMMENDATIONS

25.1. xxxxxxxxxxx

A brief summary of the principal recommendations made  in  each  chapter  is
given below:

xxxxxxxxxxxxxxx

(14)  Kidnapping or abduction for ransom should be  an  aggravated  form  of
the  offence  of  kidnapping   or   abduction   punishable   with   rigorous
imprisonment upto fourteen years and fine.”



13.   The recommendations of the Law Commission appear  to  have  languished
for nearly two decades before the Criminal Law (Amendment)  Bill,  1992  was
presented to the Parliament by the Government proposing to add  to  the  IPC
Section 364A in a form slightly different from the  one  in  which  the  Law
Commission had recommended such addition. What is important is that  in  the
statement  of  Objects  and  Reasons,  accompanying  the  bill,  a  two-fold
justification was given by the Government for the proposed addition  namely:
(i) that kidnappings by terrorists for ransom  for  creating  panic  amongst
the people and for securing release  of  their  associates  and  cadres  had
assumed serious dimensions and (ii) The  Law  Commission  had  in  its  42nd
Report  recommended  a  specific  provision  to  deal  with  the  menace  of
kidnapping and abductions  for  ransom.  The  Bill  eventually  led  to  the
Criminal Law Amendment Act 1993 (Act 42 of 1993), introducing  Section  364A
to the Indian Penal Code with effect from 22nd May, 1993, in  the  following
words:

”364A. Kidnapping for ransom, etc.— Whoever kidnaps or  abducts  any  person
or keeps a person in  detention  after  such  kidnapping  or  abduction  and
threatens to cause death or hurt to such person, or  by  his  conduct  gives
rise to a reasonable apprehension that such person may be put  to  death  or
hurt, or causes hurt or  death  to  such  person  in  order  to  compel  the
Government or any other person to do or abstain from doing  any  act  or  to
pay a ransom, shall be punishable with death, or imprisonment for life,  and
shall also be liable to fine.”



14.   Shortly after the introduction of the above provision arose  the  need
for an amendment to the same. The amendment was necessitated  by  reason  of
India acceding  to  the  international  convention  against  the  taking  of
hostages adopted by the General assembly  of  the  United  Nations  on  17th
December, 1979 in the background of Iranian hostage crisis.  The  Convention
aimed at fighting international terrorism, came into force with effect  from
3rd June, 1983 but was acceded to by India with effect from  7th  September,
1994.

15.   The Indian Penal Code (Amendment) Bill 1994, Bill No.LXV of 1994  was,
in the above background, introduced in the Rajya Sabha on 25th August,  1994
to amend Section 364A so as to substitute the expression “any other  person”
by  the  words  “any  foreign  State  or  international   inter-governmental
organisation or any other person” in the  said  section.  The  Statement  of
Objects and Reasons for the amendment also gave the background in which  the
amendment was considered necessary. The Statement  of  Objects  and  Reasons
accompanying the bill were as under:

“STATEMENT OF OBJECTS AND REASONS

An international convention against the taking of Hostages  was  adopted  by
the United Nations General Assembly on the 17th December, 1979

The said convention seeks to develop international cooperation  between  the
states  in  devising  and  adopting  effective   measures   for   prevention
prosecution and punishment of all acts of hostage taking.

India has decided to accede to the said convention since it is  one  of  the
important conventions aimed at fighting  international  terrorism.  For  the
purpose of implementing the convention it is proposed to amend section  364A
of the Indian Penal Code  which  provides  punishment  for  the  offence  of
kidnapping for ransom etc.  It is proposed to widen the scope  of  the  said
section by including therein situations where the offence is committed  with
a view to compelling foreign  states  or  international  inter  governmental
organisations to do or abstain from doing any act or to pay a ransom.

The bill seeks to achieve the above object.”


16.   A Committee of Home Affairs constituted by Rajya  Sabha  examined  the
issue and submitted a report dated 29th November, 1994  in  support  of  the
amendment to Section 364A. The existing Section 364A  did  not,  it  opined,
take care of situation where the  offence  was  committed  with  a  view  to
compel a foreign State or international inter-governmental  organisation  to
do or abstain from doing any act or paying ransom. The relevant  extract  of
the Report is as under:

“In its note furnished to  the  Committee,  the  Ministry  of  Home  Affairs
explained the background and the necessity for  amending  section  364-A  of
the Indian Penal Code, 1860, as under:-

An International Convention Against the Taking of Hostages  was  adopted  by
the General Assembly of the United Nations  on  17th  December,  1979.   The
Convention was adopted in the  background  of  Iranian  hostage  crisis  and
aimed at fighting  international  terrorism.  The  Convention  entered  into
force on 3rd June, 1983.

As per the Convention, if any person seizes  or  detains  and  threatens  to
kill, to injure or to continue to detain another person in order  to  compel
a  third   party,  namely,  a  State,  an  International  inter-governmental
organisation, a natural or juridical  person or a group of persons to do  or
abstain from doing any act as an explicit  or  implicit  condition  for  the
release of the hostages, it will constitute the offence of hostage taking.

India acceded to the Convention with effect from 7th September, 1994.

At present, the offence of hostage taking is not defined in the Indian  law.
However, vide Criminal Law (Amendment) Act, 1993, Section 364A was added  to
the Indian Penal Code  to  make  kidnapping  for  ransom,  etc.  An  offence
punishable with  death  or  imprisonment  for  life  and  also  fine.   This
provision read with other provisions of the Indian Penal  Code  on  abetment
and  attempt,  would  already  cover  hostage  taking,  as  defined  in  the
Convention to the extent that this Act  is  confined  to  the  territory  of
India. Section 364A IPC does not take care of situations where  the  offence
is committed with a view  to  compelling  foreign  States  or  international
inter-governmental organisation to do or abstain from doing any  act  or  to
pay a ransom.



Hence, the Indian Penal Code (Amendment) Bill, 1994 seeks to amend the  said
section  364A  on  kidnapping  for  ransom,  etc.  to  make  it  clear  that
kidnapping a person to  compel  the  Government  or  any  foreign  State  or
international  inter-governmental  organization  or  any  other  person   is
punishable under that section.”


17.   It is evident from the above that Section 364A  came  on  the  statute
book initially in the year 1993 not only because  kidnapping  and  abduction
for ransom were becoming rampant and  the  Law  Commission  had  recommended
that a separate provision making the same  punishable  be  incorporated  but
also because activities of terrorist  organisations  had  acquired  menacing
dimensions that called for an effective  legal  framework  to  prevent  such
ransom situations and punish those responsible for  the  same.  It  is  also
manifest that the further amendment to Section 364A in the year 1994  simply
added the expressions “foreign  state  or  international  inter-governmental
organisation” to the provision without deleting the pre-existing  expression
“any other person”.

18.   A conspectus  of  the  above  leaves  no  manner  of  doubt  that  the
expression “any other person” appearing in Section 364A right from the  time
of its initial incorporation in the Code was meant to apply  the  provisions
not only to situations where the Government was asked to pay  ransom  or  to
do any other act but even to situations where any other person  which  would
include a private person also  was  asked  to  pay  ransom.  The  subsequent
amendment in the year 1994 also did not remove  the  expression  “any  other
person” in Section 364A  while  adding  the  expression  “foreign  State  or
international  inter  Government  organisation”  to  the  provision  as   it
originally existed.

19.   There is nothing  in  the  provision  to  suggest  that  the  same  is
attracted only in ransom situations arising in acts  of  terrorism  directed
against  the  Government  or  any  foreign  state  or  international  inter-
governmental organization. The language employed in  the  provision  is,  in
our view, wide enough to cover even cases where the  demand  for  ransom  is
made not as a part of any terrorist act but also for monetary  gain  from  a
private individual.
20.   It was next argued  by  Mr.  Sodhi  that  kidnapping  for  ransom  was
already covered by the  existing  provisions  in  the  IPC.  He  urged  that
Sections 359,  360  and  361  of  the  IPC  deal  with  ‘kidnapping’,  which
according to Section 359 is of two kinds  viz.  kidnapping  from  India  and
kidnapping from  lawful  guardianship.  ‘Kidnapping  from  India’  is  under
Section 360 of the  IPC  while  ‘kidnapping  from  lawful  guardianship’  is
covered by Section 361 of the IPC. Both the situations are  made  punishable
under Section 363 of the IPC with imprisonment for a term which  may  extend
to seven years besides fine. ‘Abduction’ defined in Section 362 of the  IPC,
is not by itself punishable as is the case with kidnapping.

21.   Section 383 of the IPC defines ‘extortion’, while Section 384  of  the
IPC makes the same punishable with imprisonment that  may  extend  to  three
years, or with fine, or with both. Similarly, Sections 386,  387,  388,  389
of the IPC deal with aggravated forms of extortion  and  are  made  suitably
punishable. It was contended that once a person  is  kidnapped  and  put  in
fear of death or injury to coerce the  person  so  kidnapped  or  any  other
person to deliver any property  or  valuable  security  or  anything  signed
which may be converted into a valuable security  can  be  punished  suitably
under the provisions mentioned above. This, according to Mr.  Sodhi  implies
that the existing provisions  in  the  IPC  were  sufficient  to  deal  with
ordinary situations involving kidnapping  for  ransom,  thereby,  making  it
unnecessary for the Parliament to introduce  Section  364A  of  the  IPC  to
cover an ordinary crime situation. The corollary, according  to  Mr.  Sodhi,
is that Section 364A was added only to deal with  terrorist  related  ransom
situations and not ordinary crimes, like the one in the case at hand.

22.   The argument though attractive does not stand on closer scrutiny.  The
reasons are not far to seek.  Section 364A  has  three  distinct  components
viz. (i) the person concerned kidnaps or abducts  or  keeps  the  victim  in
detention after kidnapping or abduction; (ii) threatens to  cause  death  or
hurt or causes apprehension of death or hurt or  actually  hurts  or  causes
death; and (iii) the kidnapping, abduction or detention and the  threats  of
death or hurt, apprehension for such death or hurt or actual death  or  hurt
is caused to coerce the person concerned or someone else to do something  or
to forbear from doing something or to pay ransom. These ingredients are,  in
our opinion, distinctly  different  from  the  offence  of  extortion  under
Section 383 of the IPC. The deficiency in the existing legal  framework  was
noticed by the Law Commission and  a  separate  provision  in  the  form  of
Section 364A proposed for  incorporation  to  cover  the  ransom  situations
embodying the ingredients mentioned above. The argument that  kidnapping  or
abduction for ransom was effectively covered under the  existing  provisions
of the IPC must, therefore, fail.

23.   We may before parting with this aspect of the matter  also  deal  with
the argument that the expression ‘any other  person’  appearing  in  Section
364A ought to be read ejusdem generis  with  the  expression  preceding  the
said words. The argument needs notice only  to  be  rejected.  The  rule  of
ejusdem generis is a rule of construction and not  a  rule  of  law.  Courts
have to be very careful in applying the rule  while  interpreting  statutory
provisions. Having said that the rule applies in situations  where  specific
words forming a distinct genus class or category  are  followed  by  general
words. The first stage of any forensic application of the  rule,  therefore,
has to be to find out whether the preceding words constitute a  genus  class
or category so that the general words that follow  them  can  be  given  the
same colour as the words preceding. In cases where it  is  not  possible  to
find the genus in the use of the words  preceding  the  general  words,  the
rule of ejusdem generis will have no application.

24.   In M/s.  Siddeshwari Cotton Mills (P) Ltd.  v.   Union  of  India  and
Anr. (1989) 2 SCC 458 M.N. Venkatachaliah, J., as  His  Lordship  then  was,
examined the rationale underlying ejusdem generis as a rule of  construction
and observed:

“14. The principle underlying this approach  to  statutory  construction  is
that the subsequent general words were only intended to guard  against  some
accidental omission in the objects of the kind mentioned  earlier  and  were
not intended to extent to objects of a wholly  different  kind.  This  is  a
presumption and operates unless there is some contrary indication.  But  the
preceding words or expressions of restricted meaning must be susceptible  of
the import that they represent a class. If no class can  be  found,  ejusdem
generis rule is not attracted and such broad construction as the  subsequent
words may admit will be favoured. As a learned author puts it:



 ..... if a class can be found, but the specific words  exhaust  the  class,
then rejection of the rule may be favoured because its adoption  would  make
the general words unnecessary;  if,  however,  the  specific  words  do  not
exhaust the class, then adoption of the rule may  be  favoured  because  its
rejection would make the specific words unnecessary."



(See: Construction of Statutes by  EA  Driedger  P.  95  quoted  by  Francis
Bennion in his tatutory Construction, pp. 829 and 830)



25.    Relying  upon  the  observations  made  by  Francis  Bennion  in  his
“Statutory Construction” and English decisions in SS  Magnhild  v.  McIntyre
Bros. & Co. (1920) 3 KB 321 and those rendered by this  Court  in  Tribhuban
Prakash Nayyar v. Union of India (1969) 3 SCC 99,  UPSEB  v.   Hari  Shanker
(1978) 4  SCC  16,  his  Lordship  summed-up  the  legal  principle  in  the
following words:

“19. The preceding words  in  the  statutory  provision  which,  under  this
particular rule of construction,  control  and  limit  the  meaning  of  the
subsequent words must represent a genus  or  a  family  which  admits  of  a
number of species or members. If there is only one species it cannot  supply
the idea of a genus.”



26.   Applying the above to the case at hand,  we  find  that  Section  364A
added to the IPC made use of only two expressions viz. ‘government’ or  ‘any
other person’.  The Parliament did  not  use  multiple  expressions  in  the
provision constituting a distinct genus class or  category.   It  used  only
one single expression viz. ‘government’ which does not constitute  a  genus,
even when it may be a specie. The situation, at hand,  is  somewhat  similar
to what has been enunciated in ‘Craies on Statute Law’ (7th Edn.)  at  pages
181-182 in the following passage:

"The modern tendency of the law, it was said, [by  Asquith  J  in  Allen  v.
Emmerson (1944) KB 362)] is " to attenuate the application of  the  rule  of
ejusdem generis." To invoke the application  of  the  ejusdem  generis  rule
there must be a distinct genus category. The specific words must  apply  not
to different objects of a widely differing character but to something  which
can be called a class or kind of objects. Where this is  lacking,  the  rule
cannot apply, (Hood-Barrs v. IRC (1946) 2 All ER 768) but the mention  of  a
single species does not constitute a genus. (Per Lord Thankerton  in  United
Towns Electric Co. Ltd. v. Attorney General for Newfoundland  (1939)  1  All
ER 423). "Unless you can find a category," said Farwell L.J.,  (in  Tillmans
and Co. v. S.S. Knutsford (1908) 2  KB  385)  "there  is  no  room  for  the
application of the ejusdem  generis  doctrine,"  and  where  the  words  are
clearly wide in their meaning they ought not to be qualified on  the  ground
of their association with other words.  For  instance,  where  a  local  Act
required that "theatres and other places of public entertainment" should  be
licensed, the question arose whether a  "fun-fair"  for  which  no  fee  was
charged for admission was within the Act. It was held to  be  so,  and  that
the ejusdem generis rule did not apply to confine the words  "other  places"
to places of the same kind as theatres. So the insertion of such words as  "
or things  of  whatever  description"  would  exclude  the  rule.  (Attorney
General v. Leicester Corporation (1910) 2 Ch. 359). In N.A.L.G.O. v.  Bolton
Corpn. (1943) AC 166) Lord Simon L.C. referred to a definition of  "workman"
as any person who has  entered  into  a  works  under  a  contract  with  an
employer whether the contract be by way of manual labour, clerical work  "or
otherwise" and said: "The use of the words ’or  otherwise’  does  not  bring
into play the ejusdem generis principle: for ’manual labour’  and  ’clerical
work’ do not belong to a single limited genus" and Lord Wright in  the  same
case said: "The ejusdem generis rule is often useful or convenient,  but  it
is merely a rule of construction, not a rule of law. In the present case  it
is entirely inapt. It presupposes a ’genus’ but here the only ’genus’  is  a
contract with an employer".

                                        (emphasis supplied)



27.   The above passage was quoted with approval by  this  Court  in  Grasim
Industries Ltd. v.  Collector of Customs, Bombay (2002) 4  SCC  297  holding
that  note  1(a)  of  Chapter  84  relevant  to  that  case  was  clear  and
unambiguous.  It did not speak of a class, category  or  genus  followed  by
general words making the rule of ejusdem generis inapplicable.

28.   There is yet another angle from which the issue  can  be  viewed.  The
term ‘person’ used in  the  expression  ‘any  other  person’,  appearing  in
Section 364A of the IPC must be  understood  as  referring  to  ‘person’  as
defined in Section 11 of the IPC. Section 11 of the  IPC  defines  the  term
‘person’ as under:

“The word “person” includes any Company or Association or body  of  persons,
whether incorporated or not.”



29.   This would mean that the  term  ‘person’  appearing  in  Section  364A
would  include  a  company  or  association  or  body  of  persons   whether
incorporated  or  not,  apart  from  natural  persons.  The  tenor  of   the
provision, the context  and  the  statutory  definition  of  the  expression
‘person’ all militate against any attempt to restrict  the  meaning  of  the
term ‘person’ to the  ‘government’  or  ‘foreign  State’  or  ‘international
inter-governmental organisations’ only.


30.   That brings us to the only other contention urged  on  behalf  of  the
appellants. It was argued that Section 364A to the extent it denied  to  the
Courts the  discretion  to  award  a  sentence  other  than  death  or  life
imprisonment was ultra  vires  of  the  right  to  life  guaranteed  to  the
appellants  under  Article  21  of  the  Constitution.   Support  for   that
proposition was drawn from the decision of  this  Court  in  Mithu  etc.  v.
State of Punjab etc. (1983) 2 SCC 277 whereby a Constitution Bench  of  this
Court, struck down Section 303 of the IPC as unconstitutional. It was  urged
that denial of judicial discretion to award a sentence other than death  was
held by this Court to be a reason  good  enough  to  declare  the  provision
constitutionally invalid.  Since  Section  364A,  also  did  not  leave  any
discretion with the Court in the matter of sentence  except  death  or  life
imprisonment, it was on a parity of reasoning liable to be  struck  down  as
unconstitutional.
31.   On behalf of the respondents, it was argued that Mithu’s case  (supra)
was clearly distinguishable inasmuch as the Court was in that  case  dealing
with Section 303 IPC which did not leave any option for the Court except  to
award death sentence to a convict who  while  undergoing  life  imprisonment
committed a murder. That is not the position in the case at hand  where  the
Parliament has prescribed alternative sentences leaving it  for  the  courts
concerned  to  award  what  is  considered  suitable  in   the   facts   and
circumstances of a given case. It was also submitted that there was  nothing
outrageous about the sentence provided under Section 364A, keeping  in  view
the nature and gravity of the offence and  the  fact  that  kidnappings  and
abductions for ransom had assumed alarming dimensions in the  country  apart
from the fact that terrorists were also using that method to  achieve  their
nefarious ends. Similar  sentences  were  prescribed  for  several  offences
under the IPC that were considered grave by  the  Parliament  who  represent
the will of the people.  There was at any rate no reason for this  Court  to
go into the question of quantum  of  sentence  after  the  matter  had  been
thoroughly  examined  in  the  criminal  appeal  filed  by  the   appellants
including on the question of sentence to  be  awarded  to  them.  The  issue
whether a lesser punishment would meet the ends of justice may  arise  in  a
given case where the victim is  released  soon  after  he  is  kidnapped  or
abducted without doing any harm to him.   But  in  the  case  at  hand,  the
victim was done to death  which  called  for  the  extreme  penalty  rightly
awarded to the appellants upon consideration of the relevant  circumstances.
 Reference was also made to the decisions  of  this  Court  in  Malleshi  v.
State of Karnataka (2004) 8 SCC 95; Suman Sood  @ Kamal Jeet Kaur  v.  State
of Rajasthan (2007) 5 SCC 634; Vinod  v. State of Haryana (2008) 2  SCC  246
and Akram Khan v. State of West Bengal (2012) 1 SCC 406, in which  too  life
sentence was awarded even when the victim  was  released  unharmed.  It  was
lastly argued that  courts  must  show  deference  to  parliamentary  wisdom
underlying a legislation and as far as possible avoid interference with  the
quantum of sentence prescribed by law unless  of  course  the  same  was  so
outrageously brutal, barbaric or disproportionate as to be  unacceptable  by
any civilised society. That not  being  the  case  at  hand,  there  was  no
compelling need for this Court to interfere, argued the learned Counsel.
32.   In Mithu’s case (supra), this Court had before it a challenge  to  the
constitutional validity of Section 303, which prescribed  but  one  sentence
for an offender who committed  a  murder  while  undergoing  a  sentence  of
imprisonment for life. This  Court  struck  down  Section  303  of  the  IPC
holding that there  was  no  rational  basis  for  classifying  persons  who
committed murder while they are under a sentence of  life  imprisonment  and
those who are not under any such sentence for purposes of  awarding  to  the
former category a mandatory death sentence. The Court held that Section  303
assumed that life convicts are a dangerous breed of  humanity  as  a  class,
without there being any scientific data for such an assumption.  This  Court
further found that prescription  of  a  mandatory  death  sentence  for  the
offence of murder as a  second  offence  merely  for  the  reason  that  the
offender was under a sentence  of  life  imprisonment  for  the  first  such
offence is arbitrary and unreasonable, and  that  mandatory  death  sentence
would not serve any social purpose. The motivation of the two  offences  may
be different, the circumstances in  which  they  may  be  committed  may  be
different and even the two offences may be basically different  genre.  This
Court also found that there was no rational  distinction  between  a  person
who commits murder while undergoing the sentence of  life  imprisonment  and
another who does so after he  has  already  undergone  such  sentence.  This
Court in the above backdrop took the view that the mandatory death  sentence
deprived the Court of its wise and beneficial discretion in  the  matter  of
life and death, making it harsh, unjust and unfair.
33.   The above features, noticed by this Court  in  Mithu’s  case  (supra),
are not present in the case at hand for Section  364A  does  not  mandate  a
death sentence as was the case with Section  303  of  the  IPC.  In  Section
364A, the Court enjoys the discretion whether to award the  extreme  penalty
of death or the lesser alternative of a life imprisonment.   There  is  also
no element of any discrimination between persons  who  commit  the  offence,
like the one noticed by this Court in Mithu’s case  (supra).   Whether  life
or death would be the proper sentence is in the absolute discretion  of  the
Court which the Courts are expected to exercise wisely having regard to  the
facts of the case and the  gravity  of  the  offence  and  its  severity  or
barbarity.  To that extent, there is indeed no  comparison  between  Mithu’s
case (supra) and the case of the appellants  who  have  been  awarded  death
sentence not because the law  so  mandated  but  because  this  Court  after
considering the attendant circumstances found that to be the  only  sentence
which would meet the ends of justice. This is  evident  from  the  following
passages appearing in the judgment of this  Court  in  the  criminal  appeal
filed by the appellants [Vikram Singh & Ors. v. State  of  Punjab  (2010)  3
SCC 56]:

“56. Much argument and passion have been expended by the learned counsel  as
to the propriety of the death sentence in the facts of the case.  Mr  Sharan
has emphasised that  as  the  prosecution  story  rested  on  circumstantial
evidence, this fact by itself was a relevant consideration in  awarding  the
lesser sentence. It has also been  pleaded  that  the  appellants  were  all
young persons and the possibility that they could be reformed  during  their
incarceration could not be ruled out and this too was a factor which had  to
be considered in awarding the sentence.

57. Mr. Sharan has also referred us to Dhondiba Gundu  Pomaje  v.  State  of
Maharashtra (1976) 1 SCC 162  that  an  accused  of  young  age  should  not
ordinarily be meted out a death sentence. Reference has also  been  made  by
Mr Sharan to some observations in Bachan Singh v. State of Punjab  (1980)  2
SCC 684 that the mitigating circumstance in favour of an accused  must  also
be factored in. It has also been pleaded that  the  additional  circumstance
in favour of Sonia was that she was not only young but she was also  a  lady
and as it was possible that she had  been  influenced  into  the  unpleasant
situation by her husband, the death sentence should not be given to  her  in
any case. Mr Sharan has also placed reliance  on  two  recent  judgments  of
this Court in Santosh Kumar Satishbhushan Bariyar v.  State  of  Maharashtra
(2009) 6 SCC 498 and Sushil Kumar v. State of [pic]Punjab (2009) 10 SCC  434
whereby it has been indicated that the latest  trend  in  jurisprudence  was
that  the  death  penalty  should  not  be  awarded  except  in   the   most
extraordinary  of  cases  and  that  the  position  and  background  of  the
appellant-accused was to be kept in mind  in  evaluating  the  circumstances
for and against the imposition of the death sentence.

58. These submissions have been strongly controverted by  Mr.  Jaspal  Singh
and Mr. Kuldeep Singh, the learned counsel representing the complainant  and
the State of Punjab respectively. It has been emphasised that Sections  364-
A and 302 both provided for the  imposition  of  a  death  sentence  and  as
kidnapping for ransom was perhaps the most heinous of offences, no  latitude
should be shown to the appellants as they had poisoned a young boy to  death
for  money.  The  learned  counsel  have  also  placed  reliance  on   Henry
Westmuller Roberts v. State of Assam (1985) 3 SCC 291 and Mohan v. State  of
T.N. (1998) 5 SCC 336 where the kidnap  victim  was  a  young  boy  and  had
subsequently been done to death, the Court had awarded the death penalty.

xxxxxxxxxxxxxxxxxxxxxxxxxxx

64. A plain reading of the Objects and Reasons which led  to  the  amendment
shows the concern of Parliament in dealing with  kidnapping  for  ransom,  a
crime which called for a deterrent punishment, even  in  a  case  where  the
kidnapping had not resulted in the  death  of  the  victim.  The  statistics
further reveal that  kidnapping  for  ransom  has  become  a  lucrative  and
thriving industry all over the country which  must  be  dealt  with  in  the
harshest possible manner and an obligation rests on the courts as well.  The
courts to lend a helping hand in that direction.

65. In the case before us, we find that not only was  Abhi  Verma  kidnapped
for ransom which act would by itself attract the death penalty  but  he  was
murdered in the process. It is  relevant  that  even  before  the  aforesaid
amendments, this Court in Henry case (1985) 3 SCC 291  observed  that  death
sentence could be awarded even in a case of kidnapping and murder  based  on
circumstantial evidence holding that: (SCC p. 313, para 40)

“40. … We are of the opinion that  the  offences  committed  by  Henry,  the
originator of the idea of kidnapping children of rich people for  extracting
ransom, are very heinous and pre-planned. He had been attempting to  extract
money from the unfortunate boy’s father, PW 23 even after the boy  had  been
murdered by making the father to believe that the boy was  alive  and  would
be returned to him if he paid the ransom. In our opinion,  this  is  one  of
the rarest of rare cases in which the extreme penalty  of  death  is  called
for the murder of the innocent young boy, Sanjay in cold blood after he  had
been kidnapped with promise to be given sweets. We, therefore,  confirm  the
sentence of death and the other sentences  awarded  to  Henry  by  the  High
Court under Sections 302, 364, 201 and 387 IPC and dismiss  Criminal  Appeal
No. 545 of 1982 filed by him.”

66. Moreover, as already indicated, we have the eyewitness statement  of  PW
13 Baljeet Saini with regard to the kidnapping of Abhi  Verma  from  outside
the school.

67. Likewise, in Mohan case (1998) 5  SCC  336  which  again  related  to  a
kidnapping for ransom and murder under Sections 364-A and  302  of  a  young
boy aged ten [pic]years, while  assessing  the  aggravating  and  mitigating
circumstances, it was observed that the former far  outweighed  the  others.
It was held as under: (SCC p. 343, para 14)

“14. So far as appellant Gopi is concerned, he not only did  participate  by
pulling the rope around the neck of the boy, as already narrated,  but  went
to his house and brought a coir rope. After removing the rope from the  neck
of the boy, he encircled the coir rope  again  around  the  boy’s  neck  and
pulled the said rope for about half a minute and the boy stopped  breathing.
Thereafter he took out one Keltron  TV  box  from  underneath  the  cot  and
packed the boy in the box. These aggravating circumstances on  the  part  of
accused Mohan and Gopi clearly demonstrate their depraved state of mind  and
the brutality with which they took the life  of  a  young  boy.  It  further
transpires that after killing the boy and disposing of the dead body of  the
boy, Mohan also did not lose his lust for money and got the ransom of  Rs  5
lakhs.”

68. We must also emphasise that in this tragic scenario and in  the  drawing
up of the balance sheet, the plight of the hapless victim,  and  the  abject
terror that he must have undergone while in the grip of his  kidnappers,  is
often ignored. Take this very case. Abhi Verma was only  16  years  of  age,
and had been picked up by Vikram Singh who was known to  him  but  had  soon
realised the predicament that he faced and had shouted for help. His  terror
can further be visualised when he would have heard the threatening calls  to
his father and seen the preparations to do away  with  him,  which  included
the taping of his mouth and the administration of an overdose  of  dangerous
drugs. The horror, distress and the devastation felt in the  family  on  the
loss of an only son, can also be imagined.”


34.   Reliance upon Mithu’s case  (supra)  does  not,  therefore,  help  the
appellant in their challenge to the  vires  of  Section  364A.  Having  said
that, we must add that a legislation  is  presumed  to  be  constitutionally
valid with the burden of showing the contrary lying  heavily  upon  any  one
who challenges its validity. Not only that, courts  show  due  deference  to
the parliamentary wisdom and exercise self  restraint  while  examining  the
vires of legislations validly enacted.  Reference  may  in  this  regard  be
made to the decision of this Court in Maru Ram v.  Union  of  India  &  Ors.
(1981) 1 SCC 107 where Fazal Ali, J. in his concurring judgment observed:
“93. Thus, on a consideration of the  circumstances,  mentioned  above,  the
conclusion is inescapable that Parliament  by  enacting  Section  433-A  has
rejected the reformative character of punishment,  in  respect  of  offences
contemplated by it, for the time being in view of the prevailing  conditions
in our country. It is well settled  that  the  legislature  understands  the
needs and requirements of its people much better  than  the  courts  because
the [pic]Parliament consists of the elected representatives  of  the  people
and if the Parliament decides to enact a legislation for the benefit of  the
people, such a legislation must be meaningfully construed and  given  effect
to so as to subserve the purpose for which it is meant.”

35.   Reference may also be made to the decision of  this  Court  in  Bachan
Singh v. State of Punjab (1980) 2 SCC 684 where Sarkaria,  J.  speaking  for
majority observed:

“175.  We  must  leave  unto  the   Legislature,   the   things   that   are
Legislature’s. “The highest judicial duty is  to  recognise  the  limits  on
judicial power and to permit the democratic processes to deal  with  matters
falling outside  of  those  limits.”  As  Judges,  we  have  to  resist  the
temptation to substitute our own value-choices for the will of  the  people.
Since   substituted   judicial    “made-to-order”    standards,    howsoever
painstakingly made, do not bear the people’s imprimatur, they may  not  have
the same authenticity and efficacy as the  silent  zones,  and  green  belts
designedly marked out [pic]and left open by Parliament  in  its  legislative
planning for fair play of judicial discretion to take care of the  variable,
unpredictable  circumstances  of   the   individual   cases,   relevant   to
individualised   sentencing.   When   Judges,   acting    individually    or
collectively, in their benign anxiety to do what they think is morally  good
for the people, take upon themselves  the  responsibility  of  setting  down
social norms of conduct, there is every  danger,  despite  their  effort  to
make a rational guess of the notions of right and wrong  prevailing  in  the
community at large and despite their intention to abide by the  dictates  of
mere reason, that they might write  their  own  peculiar  view  or  personal
predilection into the law, sincerely  mistaking  that  changeling  for  what
they perceive to be the  community  ethic.  The  perception  of  “community”
standards or ethics may vary from Judge to Judge. In this  sensitive  highly
controversial  area  of  death  penalty,  with  all  its  complexity,   vast
implications  and  manifold  ramifications,  even  all  the  Judges  sitting
cloistered in this Court and acting  unanimously,  cannot  assume  the  role
which properly belongs to  the  chosen  representatives  of  the  people  in
Parliament,  particularly  when  Judges  have  no  divining  rod  to  divine
accurately the will of the  people.  In  Furman  408  US  238  ((1992),  the
Hon’ble Judges claimed to articulate the contemporary standards of  morality
among the American people. But speaking  through  public  referenda,  Gallup
Polls and the State  legislatures,  the  American  people  sharply  rebuffed
them. We must draw a lesson from the same.”


36.   To the same effect are the observations made by this  Court  in  State
of M.P. v. Bala alias Balaram (2005) 8 SCC 1 where this Court said:
“12. The punishments prescribed by the Penal Code  reflect  the  legislative
recognition of the social needs, the gravity of the offence  concerned,  its
impact on the society and what the legislature  considers  as  a  punishment
suitable for the particular offence. It  is  necessary  for  the  courts  to
imbibe that legislative wisdom and to respect it.”


37.   In a Parliamentary democracy  like  ours,  laws  are  enacted  by  the
Parliament or the State  legislature  within  their  respective  legislative
fields specified under the Constitution. The presumption attached  to  these
laws is that they are meant to cater to the societal demands  and  meet  the
challenges of the time, for the legislature  is  presumed  to  be  supremely
wise and aware of such needs and challenges.  The  means  for  redressing  a
mischief are also in the realm of legislation and so  long  as  those  means
are not violative  of  the  constitutional  provisions  or  the  fundamental
rights of the citizens, the Courts will show deference towards  them.  That,
however, is  not  to  say  that  laws  that  are  outrageously  barbaric  or
penalties that are palpably inhuman or shockingly  disproportionate  to  the
gravity of  the  offence  for  which  the  same  are  prescribed  cannot  be
interfered with.   As observed by Chandrachud, CJ in  Mithu’s  case  (supra)
if the Parliament were tomorrow to amend the IPC and make  theft  of  cattle
by a farmer punishable with cutting of the hands of the  thief,  the  Courts
would step in to declare the provision as constitutionally  invalid  and  in
breach of the right to life.  The Court observed:



“6……………………………………
Two instances, undoubtedly extreme, may be taken by way of illustration  for
the purpose of showing how the courts are not  bound,  and  are  indeed  not
free, to apply a fanciful procedure by a blind adherence to  the  letter  of
the law or to impose a savage sentence. A  law  providing  that  an  accused
shall not be allowed to  lead  evidence  in  self-defence  will  be  hit  by
Articles 14 and 21. Similarly, if a law were to provide that the offence  of
theft will be punishable with the penalty of the cutting of hands,  the  law
will be bad as violating Article 21. A savage sentence is  anathema  to  the
civilized jurisprudence  of  Article  21.  These  are,  of  course,  extreme
illustrations and we need have no fear that our legislatures will ever  pass
such laws. But these examples serve to illustrate that the last word on  the
question of justice and fairness does not rest with  the  legislature.  Just
as reasonableness of restrictions under clauses (2) to (6) of Article 19  is
for the courts to determine so is it for the courts to  decide  whether  the
procedure prescribed [pic]by a law for depriving a person  of  his  life  or
liberty is fair, just and reasonable.”

38.   That punishment must be proportionate to the offence is recognised  as
a fundamental principle of  criminal  jurisprudence  around  the  world.  In
Weems v. United States (217 US 349; 54 L.Ed 793; 30 S.  Ct  544  (1910)  the
petitioner  had  been  convicted  for  falsifying  a  public  document   and
sentenced to 15 years of what was described as ‘cadena temporal’, a form  of
imprisonment that  included  hard  labour  in  chains  and  permanent  civil
disabilities. The US Supreme Court, however, declared  the  sentence  to  be
cruel not only in terms of length of  imprisonment  but  also  in  terms  of
shackles and restrictions that were imposed  by  it.   That  punishment  for
crime should be graduated and proportionate to the offence, is a precept  of
justice, declared the Court.

39.   That decision was followed by Enmund v. Florida 647 458 US 782  (1982)
where the Court held that death penalty was  excessive  for  the  felony  of
murder where the petitioner did not take  life,  attempt  to  take  life  or
intend that life be taken or that lethal force be used. In Coker v.  Georgia
433 US 584 (1977) US Supreme Court held sentence  of  death  to  be  grossly
disproportionate and excessive for the crime of rape.  In  Herman  Solem  v.
Jerry Buckley Helm 463 US 277, 77 Led 2d 637, 103 S Ct 3001, the US  Supreme
Court was dealing with a case  where  Helm  was  found  guilty  of  what  is
described as “uttering a no  account  check”  for  100  dollars,  ordinarily
punishable with imprisonment for a period of five years and a fine  of  5000
dollars but was sentenced under the recidivist statute of  South  Dakota  to
undergo imprisonment for life. The question that fell for determination  was
whether the sentence was disproportionate to the crime  committed  by  Helm.
The Court by majority held that the  general  principle  of  proportionality
was applicable as much to sentence of imprisonment  as  it  was  to  capital
sentences and that while applying the proportionality principle  in  capital
cases, the Court had not drawn any distinction  between  capital  cases,  on
the one hand, and case of imprisonment, on the other, even when the  penalty
of death differs from all other forms of punishment not  in  degree  but  in
kind. The Court held that decisions rendered in capital cases  were  not  of
much assistance while deciding the constitutionality of punishments in  non-
capital  cases,  with  the  result  that  outside  the  context  of  capital
punishment, successful challenges to the proportionality of  sentences  were
exceedingly rare. That did not,  observed  the  Court,  however,  mean  that
proportionality  analysis  was  entirely  inapplicable  to  the  non-capital
cases.  The  Court  summed-up  its  conclusion  regarding  the  doctrine  of
proportionality as applicable to cases involving  sentence  of  imprisonment
in the following words:
“[6a, 7, 8] In sum, we hold  as  a  matter  of  principle  that  a  criminal
sentence must be proportionate to the crime  for  which  the  defendant  has
been convicted.  Reviewing  courts,  of  course,  should  grant  substantial
deference to the broad authority that legislatures  necessarily  possess  in
determining the types and limits of punishments for crimes, as  well  as  to
the discretion that trial courts possess in sentencing convicted  criminals.
 But no penalty is per se constitutional. As the Court noted in Robinson  v.
California, 370 US, at 667, 8 L Ed 2d 758, 82 S Ct 1417,  a  single  day  in
prison may be unconstitutional in some circumstances.”


40.    More  importantly,  the  Court  recognised  the   following   guiding
principles  for  determining  whether  the  sentence  of  imprisonment   was
disproportionate to the offence allegedly committed by the accused:

“[10] In sum, a court’s proportionality analysis under the Eighth  Amendment
should be guided by objective criteria, including (i)  the  gravity  of  the
offense and the harshness of the penalty;  (ii)  the  sentences  imposed  on
other criminals in the same jurisdiction; and (iii)  the  sentences  imposed
for commission of the same crime in other jurisdictions.”

41.   Applying the above  principles  to  the  case  before  it,  the  Court
declared:

“[1c] The Constitution requires us to examine Helm’s sentence  to  determine
if it is proportionate to his crime.  Applying objective criteria,  we  find
that Helm  has  received  the  penultimate  sentence  for  relatively  minor
criminal conduct.  He has been treated more harshly than other criminals  in
the State who have committed more serious crimes.  He has been treated  more
harshly than he  would  have  been  in  any  other  jurisdiction,  with  the
possible exception of a single State.  We  conclude  that  his  sentence  is
significantly disproportionate to his crime, and is therefore prohibited  by
the Eighth Amendment.  The judgment of the Court of Appeals  is  accordingly
affirmed.”


42.   More recently in Ronald Allen Harmelin v.  Michigan  501  US  957  the
U.S. Supreme Court revisited the approach to be  adopted  while  determining
the question of constitutionality of  sentences  for  non-capital  offences.
This was a case where the petitioner was convicted for possessing  672  gms.
of cocaine and sentenced to a mandatory  term  of  life  in  prison  without
possibility of  parole.   The  question  that  fell  for  consideration  was
whether the mandatory life imprisonment was in consonance  with  the  Eighth
Amendment to the U.S. Constitution. Kennedy, J. in his  concurring  judgment
noted the view taken by the Court in Weems v. United States (supra),  Enmund
v. Florida 458 US 782, Rummel v. Estelle 445 U.S 263, and Solem v. Helm  463
US 277 to observe that although the said decisions recognise  the  principle
of proportionality, its precise contours remain unclear.  The  Court,  based
on  a  conspectus  of  the  decisions,  formulated  some  common  principles
applicable  in  situations  that   required   examination   of   limits   of
proportionality. The first principle culled out from the  decisions  earlier
pronounced by the Court was that prescribing  punishment  for  crimes  rests
with the legislature and not Courts and that Courts ought to show  deference
to the wisdom of the legislature. The Court observed:

“The first of these principles is  that  the  fixing  of  prison  terms  for
specific crimes involves a  substantive  penological  judgment  that,  as  a
general matter, is  “properly  within  the  province  of  legislatures,  not
courts.”  Rumel,  supra,  at  275-276,  63  L  Ed2d  382,  100  S  Ct  1133.
Determinations about the nature and  purposes  of  punishment  for  criminal
acts implicate difficult and enduring questions respecting the  sanctity  of
the individual, the nature of law, and the  relation  between  law  and  the
social order.  “As a moral or political issue [the punishment of  offenders]
provokes intemperate emotions, deeply conflicting interests and  intractable
disagreements.”  D. Garland, Punishment and Modern Society  1  (1990).   The
efficacy of any sentencing system cannot be  assessed  absent  agreement  on
the purposes and objectives of the penal  system.   And  the  responsibility
for making these fundamental choices and implementing  them  lies  with  the
legislature.  See Gore  v.  United States [51 US 999] 357 US 386, 393,  2  L
Ed 2d 1405, 78  S  Ct  1280  (1958)  (“whatever  views  may  be  entertained
regarding severity of punishment, whether one believes in  its  efficacy  or
its futility…these are peculiarly questions of legislative  policy).   Thus,
“[r]eviewing  courts…should  grant  substantial  deference  to   the   broad
authority that legislatures necessarily possess  in  determining  the  types
and limits of punishments for crimes.”  Solem, supra, at 290,  77  L  Ed  2d
637, 103 S Ct 3001.  See also Rummel, supra, at 274, 63 L Ed 2d 382,  100  S
Ct 1133 (acknowledging “reluctance to review  legislatively  mandated  terms
of imprisonment”); Weems, supra, at 379, 54 L Ed 793,  30  S  Ct  544  (“The
function  of  the  legislature  is  primary,  its  exercises  fortified   by
presumptions of right and  legality,  and  is  not  to  be  interfered  with
lightly, nor by any judicial conception of their wisdom or propriety”).”



43.   The second principle recognised  by  the  Court  was  that  the  Eight
Amendment does not mandate adoption of any one penological theory  and  that
principles that guide criminal sentencing have varied with the times.

44.   The third principle recognised that divergences,  both  in  underlying
theories of sentencing and in the length  of  prescribed  prison  terms,  is
inevitable, because of the federal structure.  The fourth  principle  shaped
by the court was that proportionality  review  by  federal  courts  must  be
informed by objective factors to the maximum possible extent.  While  saying
so, the Court held that penalty of death differs from  all  other  forms  of
criminal punishments and  that  the  easiest  comparison  between  different
sentences is the comparison  between  capital  punishment  and  non  capital
punishment.  The  decision  also  recognised  that  objective  standards  to
distinguish between sentences for different terms of years are lacking  with
the result that  outside  the  context  of  capital  punishment,  successful
challenges to the proportionality of particular  sentences  are  exceedingly
rare. The Court summed-up in the following words:

      “[3b] All of these principles – the primacy of  the  legislature,  the
variety of  legitimate  penological  schemes,  the  nature  of  our  federal
system, and  the  requirement  that  proportionality  review  be  guided  by
objective factors – inform the final one:  The  Eighth  Amendment  does  not
require strict proportionality  between  crime  and  sentence.   Rather,  it
forbids only extreme sentences that are “grossly disproportionate.....”



45.   In Ewing v. California [538 US 11]  the US Supreme Court held that  it
is enough if the state  has  a  reasonable  basis  for  believing  that  its
punishment advances  the  goals  of  its  criminal  justice  system  in  any
substantial way.   The  Court  upheld  the  sentence  of  life  imprisonment
awarded to Ewing for theft of three  golf  sticks  because  it  reflected  a
rational legislative judgment, entitled to deference.  The Court observed:

            “Our traditional deference to legislative policy  choices  finds
a corollary in  the  principle  that  the  Constitution  “does  not  mandate
adoption of any one penological theory.”  Id., at 999, 115 L Ed 2d 836,  111
S Ct 2680 (Kennedy, J., concurring in part and conrurring in  judgment).   A
sentence can have a  variety  of  justifications,  such  as  incapacitation,
deterrence, retribution, or rehabilitation.  See 1 W.  LaFave  &  A.  Scott,
Substantive Criminal Law  1.5,  pp  30-36  (1986)  (explaining  theories  of
punishment).  Some or all of these justifications  may  play  a  role  in  a
State’s  sentencing  scheme.   Selecting  the   sentencing   rationales   is
generally a policy choice to be made  by  state  legislatures,  not  federal
courts.

xxxx             xxxx                   xxxx
xxxx             xxxx                   xxxx

      Ewing’s sentence is justified by the  State’s  public-safety  interest
in incapacitating and deterring recidivist felons, and  amply  supported  by
his own long, serious criminal record.  … … … To be sure,  Ewing’s  sentence
is a long one.  But it reflects a rational  legislative  judgment,  entitled
to deference, that offenders who have committed serious or violent  felonies
and who continue to commit felonies must be  incapacitated.   The  State  of
California “was entitled to place upon  [Ewing]  the  onus  of  one  who  is
simply unable to bring his conduct within the  social  norms  prescribed  by
the criminal law of the State.”  Rummel, supra, at 284 63 L Ed 2d  382,  100
S Ct 1133.  Ewing’s is not “the rare case in which  a  threshold  comparison
of the crime committed and the sentence imposed leads  to  an  inference  of
gross disproportionality.”



46.   The Canadian view on the principle of proportionality of  sentence  is
no different. Several decisions of the Canadian  Supreme  Court,  have  held
proportionality of punishment  to  the  gravity  of  the  offence  to  be  a
constitutional requirement. In R. v. Smith (1987) 1 SCR  1045,  the  Supreme
Court of Canada said:

“In assessing whether a sentence  is  grossly  disproportionate,  the  court
must  first  consider   the   gravity   of   the   offence,   the   personal
characteristics of the offender and  the  particular  circumstances  of  the
case in  order  to  determine  what  range  of  sentences  would  have  been
appropriate to punish, rehabilitate or deter this particular offender or  to
protect the public from this particular offender. The other  purposes  which
may  be  pursued  by  the  imposition  of  punishment,  in  particular   the
deterrence of other potential offenders,  are  thus  not  relevant  at  this
stage of the inquiry. This does not mean that the judge  or  the  legislator
can no longer consider general  deterrence  or  other  penological  purposes
that go beyond the particular offender in determining a sentence,  but  only
that the resulting sentence must not be  grossly  disproportionate  to  what
the offender deserves.”



47.   In R. v. Goltz (1991) 3 SCR  485,  the  Canadian  Supreme  Court  also
recognised  the  principle  that  legislative  edicts  as  to   quantum   of
punishment should not be lightly upset. The Court observed:

“Moreover, it is clear from both Smith and Lyons, that the test is  not  one
which is quick to invalidate sentences crafted by  legislators.   The  means
and purposes of  legislative  bodies  are  not  to  be  easily  upset  in  a
challenge under s.12.
xxx              xxx                    xxx

This acknowledgement that sanctions serve numerous purposes underscores  the
legitimacy of a legislative concern that sentences be geared in  significant
part  to  the  continued  welfare  of  the  public  through  deterrent   and
protective  aspects  of  a  punishment.   This  perspective  is   explicitly
affirmed in R. v. Luxton per Lamer C.J.  Thus, while  the  multiple  factors
which constitute the  Smith  test  are  aimed  primarily  at  ensuring  that
individuals not be subjected to grossly disproportionate punishment,  it  is
also supported by a concern to uphold other legitimate values which  justify
penal sanctions.  These values unavoidably play a role in the  balancing  of
elements in a S.12  analysis.”



48.   In R. v. Fergusson (2008) 1 SCR 96, the Canadian  Supreme  Court  held
that for the Court to interfere with the sentencing  provision  it  was  not
enough to say that the sentence was excessive. What must be demonstrated  is
that the sentence is so outrageously  disproportionate  that  the  Canadians
would  find  the  punishment  abhorrent  or   intolerable.   The   following
observations succinctly sum up the test to be adopted:

“The test for whether a particular sentence constitutes  cruel  and  unusual
punishment is whether the sentence is grossly disproportionate: R. v.  Smith
(1987) 1 SCR 1045. As this Court  has  repeatedly  held,  to  be  considered
grossly disproportionate, the sentence must be more than  merely  excessive.
The sentence must be “so excessive as to outrage standards of  decency”  and
disproportionate to the extent that Canadians  “would  find  the  punishment
abhorrent or intolerable”.



49.   To sum up:

(a) Punishments must be proportionate to  the  nature  and  gravity  of  the
offences for which the same are prescribed.

(b)   Prescribing punishments is the function of  the  legislature  and  not
the Courts’.

(c) The legislature is presumed to be supremely wise and aware of the  needs
of the people and the measures that are necessary to meet those needs.

Courts show deference to the legislative will and wisdom  and  are  slow  in
upsetting the enacted provisions dealing  with  the  quantum  of  punishment
prescribed for different offences.

(e)    Courts,  however,  have  the  jurisdiction  to  interfere  when   the
punishment prescribed is so outrageously disproportionate to the offence  or
so inhuman or brutal that the same cannot be accepted  by  any  standard  of
decency.

(f)   Absence of objective standards for determining  the  legality  of  the
prescribed sentence makes the job of  the  Court  reviewing  the  punishment
difficult.

(g)   Courts cannot interfere with the prescribed  punishment  only  because
the punishment is perceived to be excessive.

(h)   In dealing with questions of  proportionality  of  sentences,  capital
punishment is considered to be different in kind and  degree  from  sentence
of imprisonment. The result is that while there are several  instances  when
capital punishment  has  been  considered  to  be  disproportionate  to  the
offence  committed, there are very few  and  rare  cases  of   sentences  of
imprisonment being held disproportionate.

      50.   Applying the above to the case at hand, we find  that  the  need
to bring in  Section  364A  of  the  IPC  arose  initially  because  of  the
increasing incidence  of  kidnapping  and  abduction  for  ransom.  This  is
evident from the recommendations made by the  Law  Commission  to  which  we
have made reference in the  earlier  part  of  this  judgment.  While  those
recommendations were pending with the government, the specter  of  terrorism
started raising its head threatening not only the  security  and  safety  of
the citizens but the very sovereignty and integrity of the country,  calling
for adequate measures to curb what has the potential  of  destabilizing  any
country. With terrorism  assuming  international  dimensions,  the  need  to
further amend the law arose, resulting in the amendment to Section 364A,  in
the year 1994. The gradual growth of the challenges posed by kidnapping  and
abductions for ransom, not only by ordinary criminals for monetary  gain  or
as an organized activity for economic gains but by  terrorist  organizations
is what necessitated the incorporation of Section 364A  of  the  IPC  and  a
stringent punishment for those indulging  in  such  activities.   Given  the
background in which the law  was  enacted  and  the  concern  shown  by  the
Parliament for the safety and  security  of  the  citizens  and  the  unity,
sovereignty and integrity of the  country,  the  punishment  prescribed  for
those committing any act contrary to Section 364A cannot  be  dubbed  as  so
outrageously disproportionate to the nature of the offence as  to  call  for
the same being declared unconstitutional.  Judicial discretion available  to
the Courts to choose one of the two sentences prescribed for  those  falling
foul of Section 364A  will  doubtless  be  exercised  by  the  Courts  along
judicially recognized lines and death sentences awarded only in  the  rarest
of rare cases. But  just  because  the  sentence  of  death  is  a  possible
punishment that may be awarded in appropriate cases cannot make  it  per  se
inhuman or barbaric.  In the ordinary course and in cases which  qualify  to
be called rarest of the rare, death may be awarded only where kidnapping  or
abduction has resulted in the death either of the victim or anyone  else  in
the course of the commission of the offence. Fact situations where  the  act
which the accused is charged with is  proved  to  be  an  act  of  terrorism
threatening  the  very  essence  of  our  federal,  secular  and  democratic
structure may possibly  be  the  only  other  situations  where  Courts  may
consider awarding the  extreme  penalty.    But,  short  of  death  in  such
extreme and rarest of rare cases, imprisonment for life for  a  proved  case
of kidnapping or abduction will not qualify for being described as  barbaric
or inhuman so as to infringe the right to life guaranteed under  Article  21
of the Constitution.

51.   It was argued that in certain situations even  imprisonment  for  life
may be disproportionate to the gravity  of  the  offence  committed  by  the
accused. Hypothetical situations are pressed into service to bring home  the
force of the contention. The question, however, is  whether  the  Court  can
merely on a hypothetical situation strike down a provision disregarding  the
actual facts in which the challenge has been mounted. Our answer is  in  the
negative.  Assumed  hypothetical  situations  cannot,  in  our  opinion,  be
brought to bear upon the vires of Section 364A.  The stark facts  that  have
been held proved in the present case would at any rate take the case out  of
the purview of any such  hypothetical  situation.  We  say  so  because  the
appellants in the case at hand have been held guilty not only under  Section
364A, but even for murder punishable under Section 302 of the IPC.  Sentence
of death awarded to them for both  was  considered  to  be  just,  fair  and
reasonable, even by the standards of  rarest  of  rare  cases,  evolved  and
applied by this Court. It is not a case where the  victim  had  escaped  his
fate and lived to tell his woeful tale. It is a case where he  was  done  to
death, which is what appears to have weighed with the ourts in  awarding  to
the appellants  the  capital  punishment.  We  are  not  in  this  round  of
litigation sitting in judgment over what has already attained finality.  All
that we are concerned with is whether the provisions of Section 364A  in  so
far as the same prescribes death or life  imprisonment  is  unconstitutional
on account of the punishment being disproportionate to the  gravity  of  the
crime committed by the appellants. Our answer to that  question  is  in  the
negative. A sentence of death in a case of murder may be rare, but,  if  the
courts have, upon consideration of the facts and evidence,  found  that  the
same is the only sentence that can be awarded, it is  difficult  to  revisit
that question in collateral proceedings like the one at hand.







52.   In the result this appeal fails and is, hereby, dismissed.





                                                        ………………………………….…..…J.
                                                               (T.S. THAKUR)


                                                        ………………………………….…..…J.
                                                              (R.K. AGRAWAL)




                                                       …………………………..……………..J.
                                                         (ADARSH KUMAR GOEL)
New Delhi
August 21, 2015

Sec.144 C.P.C. -The doctrine of restitution is that on the reversal of a judgment the law raises an obligation on the party to the record, who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the interests of justice.”= whether the order under appeal suffers from any illegality requiring interference and correction by this Court. In our considered view in the course of finding out the value of the bonds which are no longer available for restitution, the learned Special Court committed a clear error of law in ignoring a relevant fact that the bonds in question were a tradable commodity on the stock market and its value could be easily ascertained either on the date when the bonds were handed over to the Citibank or at the time when the Citibank sold the bonds to third parties. Such relevant facts should not have been lost sight of and no presumption should have been made that Canfina would have retained the bonds with it till the maturity period. There are sufficient materials available to lend credence to the view that in all eventuality Canfina would have sold the bonds because it was in such business and also because earlier when it had the option, it chose to hand over the bonds to Citibank instead of preferring the other option of paying its monetary value. Sale of the bonds by Citibank to third parties at a verifiable rate not being under dispute, it is evidently unjust to saddle Citibank with liability to repay the possible gains made by the third party or subsequent purchasers of the bonds. For these reasons we come to the conclusion that the amount determined by the Special Court for restitution and payment by Citibank is unjust and is a result of error in not keeping under view the relevant facts as well as in applying the settled legal propositions for the purpose of compensating Canfina by way of restitution. In view of above the impugned order is set aside. In order to bring the dispute to a just, logical and early conclusion, instead of remanding the matter to the Special Court we accept the last chart submitted on behalf of appellant to be correct calculation of the amount payable by way of restitution by Citibank to Canfina. As noted earlier as per such chart the total amount payable to Canfina on 20.7.2004 is Rs. 115,08,98,835/- and after adjusting the further amount paid by Citibank to Canfina under protest on 25.4.2005 the Citibank is entitled to a refund by Canfina as on 25.4.2005 to an amount of Rs. 22,14,36,756/-. In line with earlier orders, we allow interest on this amount at the rate of 9% per annum from 25.4.2005 till the date of actual refund. Canfina should make a refund of aforesaid due amount along with interest awarded by us within four weeks. Both the appeals are allowed to the extent indicated above. In the facts of the case there shall be no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3580 OF 2005

Citibank N.A.                                       …..Appellant

      Versus

Hiten P. Dalal & Ors.                                     …..Respondents

                                    WITH

                        CIVIL APPEAL NO. 3584 OF 2005



                               J U D G M E N T



SHIVA KIRTI SINGH, J.

The simple grievance of the appellant  is  that  by  impugned  judgment  and
order dated 12.04.2005 passed by a Hon’ble Judge presiding over the  Special
Court (Trial of Offences Relating to Transactions in Securities)  at  Bombay
has erred in determining  an  excessive  amount  payable  by  the  appellant
Citibank to the respondent applicant – Canbank  Financial  Services  Limited
(hereinafter referred to as ‘Canfina’) by way of restitution.
There is no dispute that on account of reversal of a money decree in  favour
of Citibank in Suit No. 1 of 1995 filed by it against Canfina, by  a  common
order dated 7.7.2004 passed by this Court in Civil Appeal  nos.  7426,  9063
and 9138 of 1996, the Citibank is required  to  restore  back  the  monetary
benefits it received under the decree against Canfina.  The  operative  part
of the said decree dated 22/23/26.04.1996 in  Suit  no.  1  of  1995  is  as
follows:
      “121.  xxxx Accordingly, the defendants are  directed  to  deliver  to
the plaintiffs, 9% IRFC Bonds of the face value of Rs.  50  crore  within  a
period of 16 weeks xxx”

      “122.   the question then arises as to  the  interest  the  defendants
must therefore pay to the plaintiffs, the interest @ 9% on these  Bonds  for
the period starting from 15th July, 1991 till they deliver   the  Bonds.  If
the Defendants do not deliver the Bonds but  choose  to  return  the  monies
they must still pay interest. However,  in  my  view  the  Plaintiffs  would
still be entitled to interest at 9% only. This, however, will  be  from  the
date the consideration amount was received by the Defendants till  the  date
of repayment. xxx"

Since the decree gave an option to Canfina,  it  opted  to  deliver  to  the
Citibank the 9% IRFC Bonds of the face value of Rs. 50 crores on  13.8.1996.
It also paid the awarded interest at the rate of 9%. The aggregate  interest
amounted  to  Rs.22,34,58,904/-  calculated  for  the  period  15.7.1991  to
30.6.1996. There is no controversy so far as  the  restitution  of  interest
amount is concerned but there is a strong disagreement  between the  parties
as to how the market value of the bonds be calculated  for  the  purpose  of
effective and satisfactory restitution. Admittedly the  bonds  delivered  to
Citibank on 13.8.1996, were being traded in  the  market  and  there  is  no
serious dispute that on that date the market value of a bond  was  Rs.  81/-
and the aggregate value of the  bonds  on  that  basis  would  be  Rs  40.50
crores.
According to learned senior counsel, Mr. Kapil Sibal  the  Canfina  suffered
only the loss of Rs 40.50 crores and Rs. 22.34 crores and  on  decree  being
set aside it is entitled only to such loss along with 9%  interest,  by  way
of restitution.
There would have been no difficulty in working out the loss  of  Canfina  if
it had opted to pay the money value of the bonds instead of  delivering  the
bonds. It is also not in dispute that after receiving  the  bonds,  Citibank
in its wisdom disposed of the bonds in the market  during  March/April  1997
when the prevailing average market rate was Rs. 85/- per bond  although  its
face value was Rs. 100/- redeemable on 15.7.2001.  The  bonds  delivered  to
City Bank carried with them coupons for half yearly interest at the rate  of
9% on the face value of the bonds and  for  one  set  of  coupons  for  half
yearly interest, Rs. 2.25 crores in aggregate was also received by  Citibank
in January 1997. Thereafter between April/March 1997 the Citibank  sold  the
bonds at average price of Rs. 85/- receiving in aggregate Rs. 42.56  crores.

By the very nature, the bonds, on 15.7.2001 at their  face  value  would  be
worth Rs. 50 crores. This along with half yearly  interest  through  coupons
redeemed after April 1997 has presumably gone to  third  parties  who  might
have purchased the bonds in the market.
The appellant Citibank in compliance of the judgment  of  this  Court  dated
7.7.2004 had to offer restitution of  “total  amount  paid”  by  Canfina  to
Citibank (principal and interest) along with interest at the rate of 9%  per
annum from the date of payment. But in case the full amount was not paid  by
1.9.2004, the liability would increase to interest at the rate  of  12%  per
annum till repayment by Citibank. Obviously, the total amount  of  principal
paid by Canfina to Citibank through delivery of Bonds on  13.8.1996  had  to
be worked out in a reasonable and  just  manner.  This  problem  has  arisen
because Canfina had opted to deliver the bonds and not the  money  which  it
had received for those bonds. Admittedly the  total  consideration  paid  by
Citibank to Canfina for the 9% IRFC bonds of face value  of  Rs.  50  crores
was Rs. 49 crores at market value of   Rs. 98/- on 30.12.1991 along with  an
interest component  of  approximately  Rs.  2  crores,  bringing  the  total
consideration to     Rs. 51,07,12,328.77.
The issue is, when the bonds are no longer in  currency  and  not  available
for return by way of total amount paid by Canfina to the Citibank, then  for
restitution what method of calculation  shall  serve  the  purpose  best  in
arriving  at the total amount paid to Citibank “by way of  principal”  which
it must return to Canfina.
After the Supreme Court  judgment  on  12.7.2004  Canfina  by  a  letter  to
Citibank demanded Rs. 135,18,28,053/- by way of  restitution.  The  Citibank
made its own calculations and through its advocate’s  letter,  on  19.7.2004
tendered the aggregate amount of 107,75,40,141/- to  Canfina.  When  Canfina
declined to accept this offer the Citibank filed a praecipe in  the  Special
Court for depositing the aforesaid sum in Court with notice to Canfina.  The
Special Court vide its order  dated  20.7.2004  recorded  the  statement  of
Canfina that it will accept the amount without  prejudice  to  their  rights
and contentions in view of their stand that the amount is  not  correct  and
Canfina is  entitled  to  claim  more.  Thereafter  Citibank  unsuccessfully
attempted to get a recording in this Court that it  had  complied  with  the
order of restitution. This Court on 26.10.2004 disposed of  Citibank’s  I.A.
no. 5 of 2004 in Civil Appeal No.  9063  of  1996  and  granted  liberty  to
Citibank to  approach  the  Special  Court.  On  24.12.2004  Citibank  filed
miscellaneous application no. 24 of 2005 in the Special Court for  recording
satisfaction of this  Court’s  judgment.  On  2.3.2005  Canfina  also  filed
miscellaneous application no. 118 of 2005 claiming that it was  entitled  to
further amount of  approximately   Rs.  51.83  crores  after  deducting  Rs.
107.76 crores approximately already paid by Citibank. By the impugned  order
dated 12.4.2005 the Special Court disposed of both  the  above  applications
and allowed an additional sum of Rs. 30,13,55,175/-. This  amount  has  been
paid by the appellant without prejudice to its  rights  sought  through  the
present appeals  arising  out  of  common  judgment  dismissing  appellant’s
miscellaneous application and allowing that preferred by Canfina.
Learned senior counsel for  the  appellant,  Mr.  Kapil  Sibal  as  well  as
learned senior counsel for the respondent Canfina have relied  upon  various
judgments, many of them being common,  to  highlight  the  true  meaning  of
restitution in the light of Section 144 of the Code of Civil  Procedure.  It
goes without saying that they highlighted different words and  sentences  to
support their respective case.  Simply put, the contention on behalf of  the
Citibank is that for restitution  the  correct  amount  is  required  to  be
calculated on the basis of “market  value”  of  the  bonds  when  they  were
delivered  by  Canfina  to  the  Citibank  i.e,  at  the  rate  of  Rs.81/-,
aggregating Rs. 40.50 crores. This amount and also approximately  Rs.  22.34
crores paid by Canfina as interest at the rate  of  9%  per  annum  for  the
period 15.7.1991 to 30.6.1996 is the  “total  amount  paid”  by  Canfina  to
Citibank as principal and interest  and  therefore  the  sum  of  these  two
amounts alone is required to be repaid by  way  of  restitution  along  with
interest at the rate of 9% per annum because the Citibank  chose  to  comply
with the order of Supreme  Court  for  the  purpose  of  restitution  before
1.9.2004 by tendering the aggregate sum of Rs. 107,75,40,141/-  to  Canfina.
However, in order to  appear  more  fair  and  accommodative,  Citibank  has
placed three more set of calculations/charts.  The first chart  claims  that
in the light of various judgments on the issue of  restitution,  it  may  be
proper to calculate the market value of  the  bonds  on  the  basis  of  NSE
letter showing the rate as Rs. 82.80 per  bond.  So  calculated,  the  total
amount  along  with  interest  payable  to  Canfina  has   been   shown   as
Rs.109,31,28,500/-.  The second chart shows  the  total  amount  payable  as
Rs.111,30,97,602/-. This has been calculated by accepting the  market  value
of the bonds on the basis of average sale price during March/April  1997  as
Rs.85.129 per bond aggregating Rs. 42,56,45,000/-. From the figures  in  the
two charts noted above, it is evident that  while  seeking  to  justify  its
earlier calculation of approximately Rs. 107 crores as the  total  value  of
restitution,  as  an  alternative  submission  Citibank  appears   to   have
suggested two other figures by way of possible  restitution  which  are  Rs.
109 crores and Rs. 111.30 crores approximately.  But the last chart   (third
in this series) filed on behalf of Citibank acknowledges a  further  receipt
of Rs. 2.25  crores  as  coupon  interest  for  half  yearly  coupons  dated
1.1.1997 on which interest has been calculated till 20.7.2004.  That  brings
the aggregate total amount payable to Canfina as Rs. 115,08,98,835/-.  Since
Citibank paid the sum of Rs. 30,13,55,175/- on April 25, 2005  in  terms  of
the impugned order hence as per the last chart of calculations noted  above,
it has claimed that on adjustment,  it is entitled to refund by  Canfina  as
on April 25, 2005 of a total sum of Rs. 22,14,36,756/- along  with  interest
either at the rate of 12% per annum or as may be awarded by  this  Court  on
the aforesaid amount from 25th April 2005 till the date of actual refund.
On the other hand the stand of the Canfina is that after the  Supreme  Court
judgment setting aside the decree against Canfina on 7.7.2004 the only  safe
method for calculating the value of  the  bonds  delivered  to  Citibank  on
13.8.1996 would be to accept and act upon its face  value,  i.e,  Rs.  100/-
per bond on the maturity date, 15.7.2001 and  add  to  it  the  half  yearly
interest received after 13.8.1996 and then calculate interest  on  and  from
15.7.2001 at the rate indicated in the order of this Court  dated  7.7.2004.
The aforesaid claim, according to Canfina has rightly been accepted  by  the
Special Court in the impugned order so that status quo ante is  restored  by
way of restitution by ignoring the intervening circumstance of sale  of  the
bonds by Citibank to third parties in March/April 1997.
In reply learned  senior  counsel  for  the  appellant  has  criticized  the
impugned order by highlighting that in paragraph 7  the  Special  Court  has
erred in going beyond the three items delivered by Canfina to Citibank  i.e,
the bonds, the amount of interest  and  interest  coupons  by  indulging  in
speculation that “had the Canfina not been required to deliver the bonds  to
Citibank, the bonds would have remained  with  it  so  also  the  amount  of
interest till the date of redemption.” Same criticism was also made  against
another observation/opinion of the  Special  Court  in  the  same  paragraph
recorded in the following words:
“…………. in so far as the restitution is concerned the  fact  that  the  bonds
were sold by Citibank during the pendency of the appeal is not relevant.”

The contention of appellant is that the Special Court came to an unjust  and
erroneous conclusion that Canfina would be entitled to the redemption  value
of the bonds i.e, Rs. 50 Crores, mainly on account  of  aforesaid  erroneous
presumption and opinion.
Learned senior counsel, Mr. Kapil Sibal has advanced a  contention  that  as
per settled principles of law governing restitution, the respondent  Canfina
can be given back only what it lost on the  date  it  satisfied  the  decree
which was ultimately reversed and not what it could have gained  on  certain
presumptions made in the impugned order. In support of  this  contention  he
placed reliance upon two judgments of Madras  High  Court  in  the  case  of
Lakshmi Amma vs. Thazhathitathil Krishna Kurup (AIR 1931 Madras 81)  and  in
the case of S. Chokalingam Asari vs. N.S. Krishna Iyer and  Ors.  (AIR  1964
Madras 404). He also placed reliance on Calcutta High Court judgment in  the
case of Surendra Lal Chowdhury and Ors. vs. Sultan Ahmed and Ors. (AIR  1935
Calcutta 206) and the following four Supreme Court judgments:

1.    Lal Bhagwant Singh vs. Rai Sahib Lala Sri Kishen Das,
        1953 SCR 559=AIR 1953 SC 136
2.    Kartar Singh & Ors. vs. State of Punjab, (1995) 4 SCC 101
3.    Kerala State Electricity Board and Anr. vs. M.R.F.
      Limited, (1996) 1 SCC 597
4.    South Eastern Coalfields Ltd. vs. State of M.P. & Ors.,
      AIR 2003 SC 4482

In the case of Lakshmi Amma (Supra), the Madras High Court  noticed  certain
privy council judgments and also the contention that Section 144 of the  CPC
providing for restitution would apply only to cases where in execution of  a
decree passed by one court a benefit is received by the  decree  holder  and
thereafter that decree is reversed or set aside subsequently by a  competent
court then in such cases the court should place the parties in the  position
which they would have occupied but for such a decree  which  was  varied  or
set aside. However, on the facts of that case the  claim  of  the  plaintiff
appellant for restitution was turned down. In the other  Madras  High  Court
judgment in the case of S. Chokalingam (Supra) the  right  of  a  bona  fide
purchaser for  value  was  upheld  in  paragraph  30  of  the  judgment  and
thereafter in paragraph 31 reliance was placed upon judgment of  this  Court
in the case of Bhagwant Singh (Supra) by extracting  the following passage:
    “   The doctrine of restitution is that on the reversal  of  a  judgment
the law raises an obligation on the party to the record,  who  received  the
benefit of the erroneous judgment to make restitution  to  the  other  party
for what he had lost and it is  the  duty  of  the  Court  to  enforce  that
obligation unless it is shown that restitution would be clearly contrary  to
the interests of justice.”

In the case of Surendra Lal (Supra), the Calcutta High Court explained  that
it is the duty of the Court under Section 144 CPC to place  the  parties  in
the earlier position after a decree executed in favour of one be  varied  or
reversed.  But it was clarified that “in assessing what  a  party  may  have
lost or of what he may have been deprived during his dispossession  the  law
takes into account not what he could have made but what his opponent did  in
fact make or could with reasonable diligence  have  made.”  This  conclusion
was predicated on the reasoning that in vast majority of cases it  would  be
hypothetical, remote and uncertain to find out what the party  subjected  to
dispossession could have made if it was left in possession.
The relevant part of judgment in the case  of  Bhagwant  Singh  (Supra)  has
been extracted in  the  Madras  High  Court  judgment  and  already  noticed
earlier.  This  Court  in  the  penultimate  paragraph  has  reiterated  the
salutary and well established principle of restitution that on the  reversal
of a judgment the party who received the benefit of  an  erroneous  judgment
is obliged to make restitution to the other party for what he had lost.  The
Court is also duty bound to enforce such obligation  unless  it  finds  that
restitution would be clearly contrary to  the  real  justice  of  the  case.
Similar words have been used by this Court  in  the  case  of  Kartar  Singh
(Supra) by holding that the party which had  received  the  benefit  of  the
erroneous decree is required to make the  restitution  to  other  party  for
what he had lost.
In the case of Kerala State Electricity Board (Supra) also  the  view  taken
by this Court was similar. But it was further clarified that the  Court  has
a duty that in the matter of restitution justice be done  as  per  facts  of
the case. In granting  relief  of  restitution  the  Court  “should  not  be
oblivious of any unmerited hardship to be  suffered  by  the  party  against
whom action  by  way  of  restitution  is  taken.”  This  Court  favoured  a
pragmatic view and grant of relief in a manner as may  be  reasonable,  fair
and practicable  without  causing  unmerited  hardships  to  either  of  the
parties. In the case of  South  Eastern  Coalfields  Limited  (Supra),  this
Court re-emphasized that restitution is for meeting the ends of justice  and
depends upon the peculiar facts and circumstances of the case.   This  Court
further clarified in para 27 that as held by Privy Council in  the  case  of
Jai Berham vs. Kedar Nath Marwari, AIR 1922  PC  269,  Section  144  CPC  is
rather a statutory recognition of  an  already  existing  rule  of  justice,
equity and fair play and therefore even apart from  Section  144  the  Court
has inherent jurisdiction to order restitution so as to do complete  justice
between the parties. This Court approved the view of the Privy Council  that
the Court has to act rightly and  fairly  according  to  the  circumstances,
towards all parties involved.
Learned senior counsel for the respondent Canfina, as was indicated  earlier
also placed reliance upon the aforesaid judgments in  support  of  his  plea
that restitution requires that the parties be placed in the  position  which
they could have occupied  but  for  the  wrong  order  or  decree  which  is
ultimately varied or reversed. He amplified his submissions by  highlighting
certain other paragraphs in the earlier noted judgments  that  suggest  that
the status quo as obtaining on the date of wrongful  deprivation  should  be
restored and only if same is not possible due to  intervening  circumstances
like the sale of the property, price  and  mesne  profits  may  have  to  be
ordered. According  to  him  the  actual  sale  is  of  no  consequence  for
calculating what the wronged party had actually lost. However, according  to
him also, for proper restitution the Court must rely upon  verifiable  value
of the goods lost due to  sale  etc.  and  not  indulge  in  speculation  or
hypothetical presumptions. He placed reliance also  upon  judgment  of  this
Court in the case of Indian Council for Enviro-Legal  Action  vs.  Union  of
India & Ors. (2011)  8  SCC  161.  This  judgment  was  in  the  context  of
constitutional provisions such as  Article  21  and  compensation  for  loss
suffered by citizenry due to pollution. Advancing  the  principle  that  the
polluter pays for the sufferings, the  Court  propounded  the  principle  of
disgorgement of gains of wrongdoers and that the Court could even  think  of
imposing compound interest in place of simple interest provided by  statute.
Exercise of such inherent  powers  was  contemplated  only  in  interest  of
principles of justice and equity as warranted  by  the  facts  in  cases  of
pollution  causing  sufferings  to  citizenry.  All  these  principles  were
justified on the basis of power to  order  for  restitution  under  inherent
powers of the Court. But this Court did not over-rule  any  of  the  earlier
judgments of this Court laying down classic principles of restitution  under
Section 144 of the CPC on which the appellant has placed reliance and  which
require a just and fair approach so that no unmerited hardship is caused  to
either of the parties.
In the ultimate analysis we find that the law on restitution  under  Section
144 of the CPC is quite well settled. It vests expansive power in the  Court
but such power has to be exercised to ensure equity,  fairness  and  justice
for both the parties. It also flows  from  more  or  less  common  stand  of
parties on the principle of law that  for  ascertaining  the  value  of  the
property which is no longer available for restitution  on  account  of  sale
etc., the Court should adopt a realistic and verifiable approach instead  of
resorting to hypothetical and presumptive value.  It  is  also  one  of  the
established propositions that  in  the  context  of  restitution  the  Court
should keep under consideration not only the  loss  suffered  by  the  party
entitled to restitution but also the gain, if any, made by other  party  who
is obliged to make restitution. No unmerited injustice should be  caused  to
any of the parties.
Keeping the aforesaid principles in view it  has  to  be  seen  whether  the
order under appeal suffers from any illegality  requiring  interference  and
correction by this Court. In our considered view in the  course  of  finding
out the value of the bonds which are no longer  available  for  restitution,
the learned Special Court committed a clear  error  of  law  in  ignoring  a
relevant fact that the bonds in question were a tradable  commodity  on  the
stock market and its value could be easily ascertained either  on  the  date
when the bonds were handed over to the Citibank or  at  the  time  when  the
Citibank sold the bonds to third parties. Such  relevant  facts  should  not
have been lost sight of and  no  presumption  should  have  been  made  that
Canfina would have retained the bonds with  it  till  the  maturity  period.
There are sufficient materials available to lend credence to the  view  that
in all eventuality Canfina would have sold the bonds because it was in  such
business and also because earlier when it had the option, it chose  to  hand
over the bonds to Citibank instead of preferring the other option of  paying
its monetary value. Sale of the bonds by Citibank  to  third  parties  at  a
verifiable rate not being under dispute, it is evidently  unjust  to  saddle
Citibank with liability to repay the possible gains made by the third  party
or subsequent purchasers of the bonds. For these  reasons  we  come  to  the
conclusion that the amount determined by the Special Court  for  restitution
and payment by Citibank is unjust and is a result of error  in  not  keeping
under view the relevant facts as well  as  in  applying  the  settled  legal
propositions for the purpose of compensating Canfina by way of restitution.
In view of above the impugned order is set aside.  In  order  to  bring  the
dispute to a just, logical and early conclusion, instead  of  remanding  the
matter to the Special Court we accept the last chart submitted on behalf  of
appellant to be  correct  calculation  of  the  amount  payable  by  way  of
restitution by Citibank to Canfina. As noted earlier as per such  chart  the
total amount payable to Canfina on  20.7.2004  is  Rs.  115,08,98,835/-  and
after adjusting the  further  amount  paid  by  Citibank  to  Canfina  under
protest on 25.4.2005 the Citibank is entitled to a refund by Canfina  as  on
25.4.2005 to an amount of Rs. 22,14,36,756/-. In line with  earlier  orders,
we allow interest on this amount at the rate of 9% per annum from  25.4.2005
till the date of actual refund. Canfina should make a  refund  of  aforesaid
due amount along with interest awarded by us within  four  weeks.  Both  the
appeals are allowed to the extent indicated above.   In  the  facts  of  the
case there shall be no order as to costs.


                       …………………………………….J.
                       [VIKRAMAJIT SEN]


                       ……………………………………..J.
                             [SHIVA KIRTI SINGH]
New Delhi.
August 21, 2015.
-----------------------
18

Due to a dispute with its landlord it had to vacate its premises; and on locating to another, it applied for the renewal of the licence on 26.2.2002. This was obviously for the immediately succeeding year 1.4.2001 to 31.3.2002. The Excise Commissioner rejected the application for renewal on 4.9.2002 on the ground that the licence had become defunct; a decision which was upheld by the State Government. = In order to eradicate any possibility of misunderstanding our present Judgment, we hasten to clarify that had the Appellant’s application for renewal of the FL-3 licence found approval instead of rejection on 4.9.2002, the Appellant would have been liable to pay the entire fee for the year 2001-2002. This is so for the simple reason that there was no third party interference or intervention which led to the non-utilization of that licence for the previous portion of that year; it may be reiterated that the Appellant had to locate fresh premises. However, after 4.9.2002, the Appellant cannot be held responsible in any way for the non-utilization of the licence up to the date it was eventually renewed i.e. 25.3.2003.we are of the opinion that the Appellant is only liable to pay the proportionate licence fee for the period in which it could avail of the licence, that is 25.3.2003 to 31.3.2003. It would be fair to cogitate upon whether the Appellant should have declined the licence for virtually a week in that year, and since it failed to exercise that option, whether it should be burdened with the fee for the full year. It seems to us that any person placed in the position of the Appellant would not be in a position to decline to accept the renewal of the licence even though it was for less than a fortnight, since that would have led to the licence being rendered defunct; which may have then led to consequence of disentitlement for grant or renewal of the FL3 licence in the future. The Appeal is accordingly allowed. The Respondents are directed to recalculate the proportionate amount of licence fee due and payable by the Appellant for the period from 25.3.2003 to 31.3.2003. The amount of refund shall carry interest at the rate of six per cent per annum from the date of its payment due till the date of its refund. This exercise should be completed within two months from today. Failure to make this payment within this period will render the Respondents liable to pay the interest at the rate of twelve per cent per annum, instead of six per cent, as directed above, and in addition thereto, the Respondents shall be liable to pay to the Appellant the costs quantified at [pic]15,000/- (Rupees fifteen thousand only), which amount shall be deposited with the Supreme Court Advocates Welfare Fund.

                                                REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO. 2246 OF 2006
Chitra                                                   .. Appellant
                                   Versus
State of Kerala & Ors.                             .. Respondents
                                    WITH
                        CIVIL APPEAL NO. 4900 OF 2006
Cochin Wines & Drugs                               .. Appellant
                                   Versus
The Assistant Excise Commissioner & Ors.                 .. Respondents
                               J U D G M E N T
VIKRAMAJIT SEN, J.

CIVIL APPEAL NO.2246 OF 2006

1     This Appeal calls into question a brief Judgment passed  on  21.7.2005
by the Division Bench of the High Court of Kerala in W.A. No.  910  of  2000
reversing the detailed Judgment of the learned Single Judge.   The  question
that has  been  raised  pertains  to  the  Appellant’s  entitlement  to  pay
proportionate annual rental for the year 1999-2000, instead of  full  annual
fee of [pic]13 lakhs which was applicable for that year  in  respect  of  an
FL3 licence granted to her.

2.    The Division Bench took note of Rule 14 of the  Foreign  Liquor  Rules
which reads thus:
“If any of the licences referred to in Rule 13 is granted in the  course  of
a financial year, the full annual fee shall be paid and  the  licence  shall
expire at the end of the financial year”.

On the reading of the said Rule, the Division Bench opined that it  was  not
permissible for any licensee to claim  only  proportionate  payment  on  the
predication that it had been disabled from utilizing  the  licence  for  the
full period because of third party intervention. Accepting the  Appeal,  the
Appellant was  permitted  to  pay  the  balance  of  the  entire  fee  after
adjusting the sum already paid, within  three  weeks,  in  which  event  the
Respondent would not be permitted to claim  interest  on  belated  payments.
It is the admitted case that in  order  to  avail  of  this  indulgence  and
advantage the balance amount has been duly paid.  However, the  legality  of
the demand to pay the fee for the entire year, despite the truncated  period
of user by the Appellant for no fault ascribable to her  is  what  has  been
brought into question before us.

3     We have commented on the brevity of  the  impugned  Judgment  for  the
reason that the learned Single Judge of the Kerala High Court  in  O.P.  No.
18145 of 1994 had,  in  its  detailed  Judgment,  considered  various  legal
aspects  including  the  topicality  of  the  maxim  ‘Actus  curiae  neminem
gravabit’, that  an  act  of  Court  prejudices  no  one,  as  well  as  the
pronouncement of this  Court  in  R.Vijaykumar  v.  Commissioner  of  Excise
1993(4) SCALE 386, which indubitably held the  field  and  was  facially  in
favour of the Appellant.  It seems to us that the attention of the  Division
Bench  was  not  drawn  to  this  binding  precedent,  since  otherwise  its
conclusion would in all likelihood have been diametrically different.

4      The  facts  are  neither  disputed  nor  are  they  convoluted.   The
Appellant had submitted an application on 16.3.1990 for the grant of an  FL3
licence in respect of her Hotel  Chanakya  at  Trivandrum,  which  had  been
granted.  However, it transpired that a third party filed a  suit  in  which
the Munsif Court, Trivandrum granted an interim injunction  restraining  the
Excise Commissioner from issuing the said licence to the Appellant for  user
at her said Hotel. This suit, along with another suit  similar  to  it,  was
eventually dismissed on 29.9.1993.   In  an  ensuing  Appeal,  the  District
Judge granted an ad interim  injunction  on  15.4.1994,  which  came  to  be
vacated  on  3.6.1994.    On  23.11.1994,  the   Respondent   rejected   the
Appellant’s application for the FL3 licence  due  to  an  amendment  to  the
Foreign Liquor Rules which had resulted in private parties being  ineligible
for FL3 licences.  Consequently, the  Appellant  filed  O.P.  no.  18145  of
1994, which was allowed by the Single Judge. Acting in accordance  with  the
Single Judge’s directions the Excise Commissioner granted  the  licence  and
raised a demand of  only  the  proportionate  licence  fee  which  was  duly
deposited; but the matter was brought  before  the  Division  Bench  in  the
subject Appeal.  As  already  mentioned,  it  seems  most  likely  that  the
attention of the Division Bench which passed the impugned Judgment  was  not
brought to bear on the already existing binding  decisions  in  R.Vijaykumar
as well as Jayadevan v. Board of Revenue (Excise) 1999 (1)  KLJ  87  wherein
the Division Bench of the High Court of Kerala has held  that  the  licensee
is required to pay only the  proportionate  licence  fee  if  the  delay  in
granting the licence, or utilizing it, as the case may be, are  for  reasons
not attributable to the said licensee.

5     We are in agreement with the learned senior counsel for the  Appellant
that the legal principle to the effect that  no  person  can  be  prejudiced
because of an act of a Court is apposite and relevant in the  present  case.
We say this keeping in perspective the position that although the  Appellant
had applied for the FL3 licence which would ordinarily  run  the  course  of
one financial year,  due  to  interim  orders  passed  by  the  Courts,  the
Appellant could only utilize it for a fraction of that  period.   We  hasten
to clarify that the Appellant’s application was not made in the duration  of
that year and was thus initially not for a fraction of the  financial  year.
This  Court  has  already  held  in  R.Vijaykumar,  in   the   circumstances
prevailing in that case, that the Department could not  interfere  with  the
utilization of the FL3 licence, provided that  the  licensee  complied  with
all other conditions as well as “payment of annual rental  proportionately”.
  It is therefore clear that  Rule  14  would  not  impede  or  inhibit  the
charging of annual proportionate fee so long as no failure is placed on  the
licensee or it is blameworthy itself.  We must be quick to clarify  that  in
the event that  a  party  applies  for  a  period  which  is  obviously  not
effective for the entire financial year, such as applying for a licence mid-
way that financial year, the full fee for that  year  may  be  claimable  or
chargeable and, therefore, would have to be paid.   In other words, had  the
Appellant applied for the licence even with the knowledge  that  because  of
external factors such as a pre-existing injunction  order  etc.,  she  would
not have been able to exploit it for the entire year, she may not have  been
liable to pay the licence fee for the entire year.  This is not the  factual
matrix which obtains in the case at hand; the licence could only be  granted
for the period from 21.12.1999 to 31.3.2000, i.e. till  the  close  of  that
financial year, owing to unforeseeable  circumstances  beyond  the  ken  and
control of the parties before us.  We have already made  a  mention  of  the
Division Bench Judgment delivered in Jayadevan which in  turn  was  referred
to in another Division Bench  Judgment  in  Rajagopalan  Nair  v.  Assistant
Commissioner of  Excise  1989  (1)  KLT  800,  wherein  the  Division  Bench
directed that the licensee was entitled to remission  of  payment  of  kisht
because of being disabled to conduct its business on account of the  interim
orders passed by the Court.  We affirm the conclusions arrived at  in  these
decisions.  We hold that a party is entitled to  seek  a  remission  in  the
payment of licence fee if it is precluded from transacting business  on  the
strength of that licence because of factors and  reasons  extraneous  to  it
and/or if it is granted the licence on the direction of a Court for  only  a
portion of the financial year.

6     The Appeal is  accordingly  allowed.    The  Respondent  State  shall,
within six  weeks  from  today,  refund  to the  Appellant    the    balance
 amount   of  [pic] 9,41,257/- together with interest thereon  at  the  rate
of six per cent per annum with effect from 11.8.2005.      Failure to do  so
shall render the Respondent State liable to refund  the  aforementioned  sum
of [pic]9,41,257/- together with interest at the rate  of  twelve  per  cent
per annum calculated from 11.8.2005  till  the  date  of  payment  and  also
additionally  liable  for  payment  of  costs  quantified  at  [pic]15,000/-
(Rupees fifteen thousand only).

CIVIL APPEAL NO.4900 OF 2006

7      The  facts  that  arise  in  this  Appeal  are  somewhat  complex  in
comparison to Chitra’s foregoing Appeal.  The Appellant had been granted  an
FL3 licence for its Hotel Hackoba at Ernakulam  for  the  period  ending  on
31.3.2001.     Due to a dispute with its  landlord  it  had  to  vacate  its
premises; and on locating to another, it applied  for  the  renewal  of  the
licence on 26.2.2002.   This was obviously for  the  immediately  succeeding
year  1.4.2001  to  31.3.2002.   The  Excise   Commissioner   rejected   the
application for renewal on 4.9.2002 on  the  ground  that  the  licence  had
become defunct; a decision which was upheld by  the  State  Government.   In
these circumstances, the Appellant successfully approached  the  High  Court
of Kerala which issued a direction to the  State  Government  to  issue  the
licence within two weeks.  The  Single  Judge  simultaneously  directed  the
Appellant to pay the licence fee for the years 2001-2002  and  2002-2003  by
his Judgment dated 27.1.2003.  The Appellant preferred  an  Appeal,  and  on
the first day of its hearing, the Division Bench passed an ad interim  Order
directing the Appellant to pay [pic]15 lakhs.   Shortly  after  making  this
payment, on 25.3.2003, the licence was renewed.  The Division Bench  of  the
High Court of Kerala noted Rule 14 of the Foreign Liquor Rules  as  well  as
the fact that it had not been challenged.  The Division Bench  accepted  the
argument of the Appellant that for the reason that it could not utilize  the
licence for the year 2001-2002 as its application  had  been  disallowed  it
was not liable to pay any fee; viz. during this period it was  prevented  by
extraneous elements and factors from utilizing the licence.    However,  the
Division Bench held that since the licence was renewed in March  2003,  even
though the Appellant could conduct its business for less  than  a  fortnight
in that licence year, nevertheless the Appellant was liable to pay the  full
fee  for  the  year  2002-2003.   It  is  these  circumstances  which   have
constrained the Appellant to file the present Appeal before us.

8     In order to eradicate any possibility of misunderstanding our  present
Judgment, we hasten to clarify that  had  the  Appellant’s  application  for
renewal  of  the  FL-3  licence  found  approval  instead  of  rejection  on
4.9.2002, the Appellant would have been liable to pay  the  entire  fee  for
the year 2001-2002.  This is so for the simple  reason  that  there  was  no
third party interference or intervention which led  to  the  non-utilization
of that licence for the previous portion of that year; it may be  reiterated
that the Appellant had to locate fresh premises.  However,  after  4.9.2002,
the Appellant cannot be held responsible in any way for the  non-utilization
of the licence up to the date it was eventually renewed i.e. 25.3.2003.

9     On the predication of the  legal  analysis  and  discussion  in  Civil
Appeal No. 2246 of 2006 (supra), we are of the opinion  that  the  Appellant
is only liable to pay the proportionate licence fee for the period in  which
it could avail of the licence, that is 25.3.2003 to  31.3.2003.    It  would
be fair to cogitate upon whether the  Appellant  should  have  declined  the
licence for virtually a week in that year, and since it failed  to  exercise
that option, whether it should be burdened with the fee for the  full  year.
It seems to us that any person placed  in  the  position  of  the  Appellant
would not be in a position to decline to accept the renewal of  the  licence
even though it was for less than a fortnight, since that would have  led  to
the licence being rendered defunct; which may have then led  to  consequence
of disentitlement for grant or renewal of the FL3 licence in the future.

10    The Appeal is accordingly allowed.   The Respondents are  directed  to
recalculate the proportionate amount of licence fee due and payable  by  the
Appellant for the period from  25.3.2003  to  31.3.2003.     The  amount  of
refund shall carry interest at the rate of six per cent per annum  from  the
date of its payment due till the  date  of  its  refund.      This  exercise
should be completed within two months from  today.   Failure  to  make  this
payment within this period will render the Respondents  liable  to  pay  the
interest at the rate of twelve per cent per annum, instead of six per  cent,
as directed above, and in addition thereto, the Respondents shall be  liable
to pay to the  Appellant  the  costs  quantified  at  [pic]15,000/-  (Rupees
fifteen thousand only),  which amount shall be deposited  with  the  Supreme
Court Advocates Welfare Fund.



…………………………………J.
[VIKRAMAJIT SEN]


…………………………………J.
[SHIVA KIRTI SINGH]

New Delhi,
August 21 ,  2015.

Rule 17 - Rectified spirit – Whether Rule 17 which empowers the Government to fix the price of rectified spirit, valid? K.Shivashankar Bhat, J., Held. - Rule 17 of the State rules, invoked in the present case, nowhere lays down nor indicate the principles or factors to be considered while the Excise Commissioner fixes the price with the prior approval of the State Government. The case of other liquors may be different, because, in those cases, the State has exclusive privilege to deal with those liquors/intoxicants, unlike the case of rectified spirit. The permissible limits of delegation of legislative function cannot be stretched so as to make it notional. It cannot be said that the limitation on the delegation of legislative function has reached a vanishing point. Limitation is needed to prevent any possible dictatorial power being vested in the executive by the legislature. Rule 17 insofar as it empowers of the fixation of price of rectified spirit, is therefore, declared as unconstitutional and ultra vires the provisions of the State Act.

                                                                  REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No. 860 OF 2006




SRI MALAPRABHA CO-OP SUGAR FACTORY
LTD                                               ..APPELLANT(S)


      Versus



STATE OF KARNATAKA & ORS.                  .. RESPONDENTS







                           J  U  D  G  M  E  N  T



VIKRAMAJIT SEN,J.


1     This Appeal brings into challenge the Judgment of the  Division  Bench
of the High Court of Karnataka  in  terms  of  which  the  Judgment  of  the
learned Single Judge had been upheld; however, with the direction  that  the
competent authority shall examine the claim made by the Appellant for  being
classified as a non-captive unit.  On 29.7.2004,  while  issuing  notice  it
had been clarified that the impugned Judgment had not been stayed.

2      The  facts  that  are  relevant  for  deciding  the  present  Appeal,
succinctly, are that the Respondent State had fixed the price  of  rectified
spirit  uniformly  at  [pic]  6/-  per  litre  by  Government  Order   dated
12.5.1992.   While  doing  so,  it  had  been  indicated  that  the  captive
distilleries would be entitled to receive only [pic] 5/- per litre, and  the
balance [pic] 1/- per litre would be receivable  by  the  Respondent  State.
For the period of 1.7.1992 to 30.6.1993, supplies of rectified  spirit  were
made by the Appellant to various parties and the entire sum at the  rate  of
[pic] 6/- per litre was recovered/received by the  Appellant.   It  will  be
relevant to underscore that the supply of rectified spirit  (ethyl  alcohol)
was made by the Appellant with full knowledge of  the  Government  Order  to
which challenge has been made, namely, the payment of [pic]  1/-  per  litre
to the State Government.  The Appellant  does  not  dispute  that  it  is  a
captive distillery, since it produces molasses which is then  distilled  and
converted  into  ethyl  alcohol/rectified  spirit/industrial  alcohol.   The
Government Order dated 12.5.1992 has not been assailed by the  Appellant  at
any point of time.   When a demand  for  a  sum  of  [pic]  13,32,000/-  was
raised by the Superintendent of Excise, Huballi, by letter  dated  15.12.93,
a challenge by way of  the filing of a writ petition was initiated.

3     The Respondent State is  empowered  to  fix  the  price  of  rectified
spirit by virtue of  Rule  17  of  the  Karnataka  Excise  (Manufacture  and
Bottling  of  Arrack)  Rules,  1987,  the  vires  of  which  have  not  been
questioned.  The Rule is reproduced for facility of reference:

      Rule 17 -   Rectified spirit – Whether  Rule  17  which  empowers  the
Government to fix the price of rectified spirit, valid?

      K.Shivashankar Bhat, J., Held. -  Rule 17 of the State rules,  invoked
in the present case, nowhere  lays  down  nor  indicate  the  principles  or
factors to be considered while the Excise Commissioner fixes the price  with
the prior approval of the State Government.  The case of other  liquors  may
be different, because, in those cases, the State has exclusive privilege  to
deal with those liquors/intoxicants, unlike the case  of  rectified  spirit.
The permissible limits of  delegation  of  legislative  function  cannot  be
stretched so as to make it notional.  It cannot be said that the  limitation
on the delegation of  legislative function has reached  a  vanishing  point.
Limitation is needed to prevent any possible dictatorial power being  vested
in the executive by the legislature.  Rule 17 insofar as it empowers of  the
fixation  of  price  of  rectified  spirit,  is   therefore,   declared   as
unconstitutional and ultra vires the provisions of the State Act.

4     The manner in which the trade of arrack is conducted can  be  gleaned,
inter alia, from a  reading  of  Rule  13,  which  is  also  reproduced  for
convenience:

Rule 13.     Stock of rectified spirit. –  (1)  The  quantity  of  rectified
spirit required for the warehouse shall  be  allotted  by  the  Commissioner
from time to time.  It shall be drawn from the distillery  on  indents  duly
countersigned by the Warehouse Officer.  The  transportation  charges  shall
be borne by the licensee.  The  distillery  shall  issue  such  quantity  of
rectified spirit as allotted by the Commissioner, to the  warehouse  at  the
rates fixed by the Commissioner under Rule 17.

(2)  The stock of spirit when received at the warehouse  shall  be  verified
by the Warehouse Officer by volume and strength  or  the  quantity  of  pure
alcohol in it and taken to the storage vats.  The  Warehouse  Officer  shall
furnish a  certificate  of  such  verification  to  the  Distillery  Officer
concerned and shall keep a register showing the details of  stock  indented,
issued by the distillery and the stock as received in the warehouse.

(3)  Gauging of spirit shall be made by the Warehouse  Officer  everyday  in
the presence of the  licensee  or  his  authorized  representative  and  the
result thereon shall be recorded in a register, which shall be  attested  by
both the Officer and the licensee or his representative.

(4)  (a)  The licensee or his authorized  representative  shall      give  a
requisition for the transfer of such quantity of spirit for  the  production
of arrack to the vessels  kept  for  the  purpose.   The  requisition  shall
contain information as to the date,  batch,  number,  quantity,  spirit  vat
number from which to be issued, and the vessel number to which it should  be
transferred.

        (b)  The Warehouse Officer on receipt of the requisition may  permit
the transfer after gauging the stock in volume and strength.

A perusal of the said Rule makes it patently  clear  that  the  Commissioner
allots quantities of rectified spirit from the distillery to a  ‘warehouse’,
and the indents are duly counter signed by the Warehouse Officer.  The  Rule
clarifies that the transportation charges are to be borne by  the  licencee.
  This  arrangement,  so  far  as  transportation  expenses  are  concerned,
obviously does not arise where molasses is readily  available  in  the  very
same premises where its conversion or  distillation  into  rectified  spirit
takes place.   The contention of learned counsel for the Appellant  is  that
the State is not entitled to take away the extra profit  of  [pic]  1/-  per
litre which the Appellant earns because molasses is  available  in  its  own
premises.   This argument, however, conveniently ignores the fact  that  the
Respondent State had made it incontrovertibly clear  that  it  would  permit
the Appellant to sell rectified spirit at the common fixed rate of [pic] 6/-
 provided it transferred  [pic]  1/-  per  litre  to  the  State.    If  the
Appellant was serious in questioning the legal capacity  of  the  Respondent
State recover the said [pic] 1/- per litre, it  perforce  had  to  challenge
the Government Order dated 12.5.1992.   Having failed to do  so  it  cannot,
thereafter, challenge the Demand dated 15.12.1993 which is predicted on  the
Government Order itself.  Learned counsel for the Respondent State has  made
an attempt to rely on the decisions of this Court in  Bihar  Distillery  vs.
Union of India AIR (1997) SC 1208, as also Synthetics &  Chemicals  Ltd.  v.
State of U.P. (1990) 1 SCC 109.   We have not permitted him  to  do  so  for
the simple reason that the question of law that had  engaged  the  attention
of the Court in those cases, as well as in Vam Organics  Chemicals  Ltd.  v.
State of  U.P. (1997) 2 SCC 715 was altogether  different.    In  the  three
cases, the challenge was to  the  competence  of  the  State  Government  to
impose administrative  charges  for  regulating  the  holding  of  rectified
spirit, since there is an omnipresent danger of the rectified  spirit  being
surreptitiously diverted for the illicit production of arrack and  for  that
matter even Indian-Made Foreign Liquor  (IMFL).   Learned  counsel  for  the
Appellant has endeavoured to place  reliance  on  the  decision  in  Pratima
Chowdhury v. Kalpana Mukherjee (2014) 4 SCC 196, in order  to  buttress  the
argument that estoppel cannot be claimed by the  Respondent  State;  we  are
unable to appreciate the reliance  on  this  decision  in  support  of  this
contention.  What we have before us is a simple case of  recovery  of  dues,
viz. at rates which had been declared well before the permission  to  supply
rectified spirit was accorded to the  Appellant.    The  position  may  have
been different had the Respondent State failed to pass  relevant  orders  or
had it failed  to  inform  the  Appellant  that,  since  it  did  not  incur
transportation costs, this  amount,  which   had   been   predetermined   at
[pic]1/- per litre, would be payable to the State.

5     There were three Appellants before the  Division  Bench  of  the  High
Court of  Karnataka but only one of them, i.e. the Appellant before us,  has
decided to further challenge the Demand of [pic] 13,32,000/- being  accorded
at [pic] 1/- per litre sold by the  Appellant.    It  is  also  relevant  to
mention that the Appellant has not challenged the Demand  of  transportation
charges of [pic] 1/- per litre for any subsequent charges.

6     We  find  no  substance  in  the  Appeal.    The  Appellant  had  full
knowledge of the fact that it had been permitted to supply rectified  spirit
to third parties who are engaged in the business of production of arrack  on
the condition that of the general fixed price of [pic] 6/- per litre,  [pic]
1/- per litre would have to be made over to the Respondent State.

7     The Appeal is accordingly dismissed, with no order as to costs.




..............................................J.
                                                  [VIKRAMAJIT SEN]



..............................................J.
                                               [SHIVA KIRTI SINGH]
New Delhi;

August 21,   2015.





-----------------------
7

whether no remand in police custody can be given to the investigating agency in respect of the absconding accused who is arrested only after filing of the charge sheet

           
whether no remand in police  custody  can  be  given  to  the  investigating agency in respect of the absconding  accused  who  is  arrested  only  after filing of the charge sheet  

Out of eight  proclaimed  offenders,  five,  namely,  Rathin  Dandapat,  Md.
Khaliluddin, Dalim Pandey, Joydeb Giri  and  Tapan  Dey,  were  arrested  on
29.4.2014, whereafter on 30.4.2014 the CBI sought  their  remand  in  police
custody.  The Additional Chief Judicial Magistrate,  Jhargram  rejected  the
prayer of the CBI, aggrieved by which said  investigating  agency  submitted
Revisional Application (C.R.R. No. 1510 of 2014) before  the  Calcutta  High
Court.  Absconder-accused Chandi Karan was arrested on 9.5.2014  by  CID  of
the State, which informed the CBI about his arrest  and  meanwhile  vacation
Magistrate remanded judicial custody of said accused up to  12.5.2014.   The
CBI on 12.5.2014 sought remand  in  police  custody  in  respect  of  Chandi
Karan, but the same was also  rejected  by  the  Additional  Chief  Judicial
Magistrate, Jhargram, against which Revisional Application (C.R.R. No.  1641
of 2014) was filed before the High Court.  As to the absconder-accused  Anuj
Pandey too, CID, West Bengal, on 7.5.2014 informed the CBI about his  arrest
from Chandrapura in Jharkhand, and he was produced on  8.5.2014  before  the
Additional Chief Judicial Magistrate, Jhargram where CBI  sought  remand  in
police custody but the same was  also  refused.   Aggrieved  by  said  order
dated  8.5.2014,  passed  by  the  Additional  Chief  Judicial   Magistrate,
Revisional Application (C.R.R. No. 1640 of 2014) was filed before  the  High
Court.  All the three Criminal Revisions were disposed of by the High  Court
by separate orders of the same date, i.e., 15.10.2014, against  which  these
criminal appeals are filed through special leave.

law position

Proviso to sub-section (2) of Section 167 CrPC, which empowers a  Magistrate
to authorize detention of an accused in the  custody  of  police,  reads  as
under: -
“Provided that, -

The Magistrate may authorize the detention of the accused person,  otherwise
than in the custody of the police, beyond the period of fifteen days, if  he
is satisfied that adequate grounds exist for doing  so,  but  no  Magistrate
shall authorize the detention of the accused person in  custody  under  this
paragraph for a total period exceeding, -

Ninety days, where the investigation relates to an offence  punishable  with
death, imprisonment for life or imprisonment for a term  of  not  less  than
ten years;

Sixty days, where the investigation relates to any other  offence,  and,  on
the expiry of the said period of ninety days, or sixty  days,  as  the  case
may be, the accused person shall be released on bail if he  is  prepared  to
and does furnish bail, and every person released on  bail  under  this  sub-
section shall be deemed to be so released under the  provisions  of  Chapter
XXXIII for the purposes of that Chapter;

No Magistrate shall authorize detention of the accused  in  custody  of  the
police under this section unless the  accused  is  produced  before  him  in
person for the first time and  subsequently  every  time  till  the  accused
remains in the custody of the police, but the Magistrate may extend  further
detention in judicial custody on production of the accused either in  person
or through the medium of electronic video linkage;

No Magistrate of the second class, not specially empowered  in  this  behalf
by the High Court, shall authorize detention in the custody of the police.”


Sub-section (8) of Section 173, under which investigating agency  has  power
to further investigate the matter  in  which  the  report/charge  sheet  has
already been filed, is reproduced hereunder: -
“(8)   Nothing  in  this  section  shall  be  deemed  to  preclude   further
investigation in respect of an offence after a report under sub-section  (2)
has been forwarded to the Magistrate and,  where  upon  such  investigation,
the officer in charge of the police station obtains further  evidence,  oral
or documentary, he shall forward to  the  Magistrate  a  further  report  or
reports regarding such evidence in the form prescribed; and  the  provisions
of sub-sections (2) to (6) shall, as far as may be,  apply  in  relation  to
such report or reports as they apply  in  relation  to  a  report  forwarded
under sub-section (2).”

Relevant provision of  sub-section  (2)  of  Section  309  CrPC,  empowering
remand of an accused, provides as under: -
“(2)  If the Court after taking cognizance of an  offence,  or  commencement
of trial, finds it necessary or advisable to postpone the  commencement  of,
or adjourn, any inquiry or trial, it may, from time to time, for reasons  to
be recorded, postpone or adjourn the same on such terms as  it  thinks  fit,
for such time as it considers reasonable, and may by a  warrant  remand  the
accused if in custody:

            xxx              xxx             xxx

Explanation 1. – If  sufficient  evidence  has  been  obtained  to  raise  a
suspicion that the accused may have committed an  offence,  and  it  appears
likely that further evidence  may  be  obtained  by  a  remand,  this  is  a
reasonable cause for a remand.”

conclusion

 police  remand
can be sought under Section 167(2) CrPC in respect of  an  accused  arrested
at the stage of further investigation, if the  interrogation  is  needed  by
the investigating agency.
This Court has further  clarified  in  said  case
that expression ‘accused if in custody’ in  Section  309(2)  CrPC  does  not
include  the  accused  who  is  arrested  on  further  investigation  before
supplementary charge sheet is filed.

For the reasons, as discussed above, we find  that  the  refusal  of  police
remand in the present case is against the  settled  principle  of  law  laid
down by this Court.  Therefore, the  impugned  orders  passed  by  the  High
Court, affirming the orders of the  Additional  Chief  Judicial  Magistrate,
Jhargram, are liable to be set  aside.   Accordingly,  the  impugned  orders
passed by the High Court and the orders passed by the Magistrate,  declining
the police remand, are set aside.  The Magistrate is directed to pass  fresh
orders on the applications made by  the  appellant  before  it  relating  to
granting of police remand of the respondents in accordance with law.

All the three appeals stand allowed. 2015 S.C.MSKLAWREPORTS