increase in prices of diesel and petrol from 06.06.2006. On the element of increase no additional ad valorem VAT was payable and according to the proviso the increased component was not to be part of sale consideration. Consequently VAT was not to be charged in respect of such increased component, as per definition of the term “sale price” which came to be controlled by introduction of the proviso. When there was no increased component and therefore no liability to pay VAT in respect of such increased component, benefit under the proviso ceased to be applicable. The proviso cannot be given operation beyond the element of increase, so much so that even after complete roll back, the benefit in respect of that amount must operate. That certainly was not the intent. The idea was to grant benefit only in respect of that element of VAT respecting increase in rates and not beyond. If that component of increase ceased to be in existence, the benefit of proviso also ceased to be in operation. We, therefore, affirm the view taken by the High Court and the Appellate Authority and are not persuaded to take a different view in the matters. Affirming the judgment of the High Court, these appeals are dismissed without any order as to costs.

                                                              Non-reportable


                        IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISDICTION


                       CIVIL APPEAL NO. 5103  OF 2016
        (Arising out of Special Leave Petition (C) No.15206 of 2012)




Indo Burma Petroleum Corp. Ltd.                    …. Appellant

                                   Versus

Commissioner VAT Delhi & Ors.                        …. Respondents

                                    WITH

                 C.A. No.5104 of 2016 @ SLP(C) No.15274/2012
                C.A. No.5105 of 2016 @ SLP(C) No, 15275/2012
                C.A. No.5106 of 2016 @ SLP(C) No. 15279/2012
                C.A. No.5107 of 2016 @ SLP(C) No. 15374/2012
                 C.A. No.5108 of 2016 @ SLP(C) No.15379/2012
                 C.A. No.5109 of 2016 @ SLP(C) No.15680/2012
                 C.A. No.5110 of 2016 @ SLP(C) No.15732/2012
                 C.A. No.5111 of 2016 @ SLP(C) No.15736/2012
                 C.A. No.5112 of 2016 @ SLP(C) No.16330/2012
                 C.A. No.5113 of 2016 @ SLP(C) No.16333/2012
                 C.A. No.5114 of 2016 @ SLP(C) No.16498/2012
                 C.A. No.5115 of 2016 @ SLP(C) No.16520/2012
                 C.A. No.5116 of 2016 @ SLP(C) No.16599/2012
                 C.A. No.5117 of 2016 @ SLP(C) No.16601/2012
                 C.A. No.5118 of 2016 @ SLP(C) No.16615/2012
                 C.A. No.5119 of 2016 @ SLP(C) No.16707/2012
                 C.A. No.5120 of 2016 @ SLP(C) No.16711/2012
                 C.A. No.5121 of 2016 @ SLP(C) No.16793/2012
                 C.A. No.5122 of 2016 @ SLP(C) No.16810/2012
                 C.A. No.5123 of 2016 @ SLP(C) No.16837/2012
                 C.A. No.5124 of 2016 @ SLP(C) No.16841/2012
                 C.A. No.5125 of 2016 @ SLP(C) No.16900/2012
                C.A. No.5126 of 2016 @ SLP(C) No.17164/2012
                                     AND
               C.A. No.5127 of 2016 @ SLP(C) No.17510/ 2012)


                               J U D G M E N T


Uday Umesh Lalit, J.


1.    Leave granted.

2.    These appeals by special leave challenge  correctness  of  the  common
judgment and order dated 27.02.2012 passed by the High  Court  of  Delhi  at
New Delhi in Sales Tax Appeal No.20 of 2012  and  other  connected  matters.
Apart from lead matter i.e. Sales Tax Appeal No.20 of  2012  filed  by  Indo
Burma Petroleum Corporation Ltd., the High Court also dealt with  Sales  Tax
Appeal Nos.6, 7, 10, 14, 16, 23, 25  and  27  of  2012  filed  by  Hindustan
Petroleum Corporation Limited, Sales Tax Appeal Nos.8, 11, 17, 18,  21,  22,
28 and 30 of 2012 filed by Indain Oil  Corporation  Limited  and  Sales  Tax
Appeal Nos.9, 12, 13, 15, 19,  24,  26  and  29  of  2012  filed  by  Bharat
Petroleum Corporation Limited.   These petroleum companies had  filed  Sales
Tax Appeals under Section 81 of the Delhi Value Added Tax  Act,  2004  (“the
Act” for Short).

3.    On 01.06.2006 rates of Petrol and High Speed Diesel were increased  by
Rs.4/- and Rs.2/- respectively from the midnight of 5/6th June, 2006.   This
increase in rates would have resulted in ad valorem increase in Value  Added
Tax (VAT) at the rate of 0.66 paise per litre of Petrol and 0.22  paise  per
litre of High Speed Diesel.  With a view to grant some relief in  the  price
rise to the customers, the  Government  of  National  Capital  Territory  of
Delhi issued a Memorandum  dated  20.06.2006  which  was  to  the  following
effect:
                       “GOVERNMENT OF NATIONAL CAPITAL
                             TERRITORY OF DELHI
                         OFFICE OF THE COMMISSIONER,
                               VALUE ADDED TAX
                             DEPARTMENT OF TRADE
                             AND TAXES, BIKRIKAR
                       BHAWAN, I.P. ESTATE, NEW DELHI

No.F1[13/Pll/VAT/Act/2006/2069  Dated 20th June, 2006

                                 MEMORANDUM

In pursuance of the ordinance dated 20.06.2006 [copy  enclosed]  promulgated
by the Lt. Governor of the National Capital Territory of Delhi, Value  Added
Tax shall not be charged with immediate effect  on  the  incremental  prices
[including the duties and levies charged thereon by the Central  Government]
of petrol and diesel as has been announced by the Government of  India  with
effect from 6th June, 2006.

Therefore,  diesel  and  petrol  shall  be  sold  in  the  National  Capital
Territory of Delhi by not taking into account the  component  of  the  Value
Added Tax on the increased price  with  immediate  effect,  meaning  thereby
that VAT shall continue to be charged on the pre-revised  prices  of  diesel
and petrol till further notification in this regard.

                                                                  [HANS RAJ]
                                           ADDITIONAL COMMISSIONER [POLICY]”

4.    On 21.06.2006 an Ordinance was promulgated by the Lieutenant  Governor
inserting a proviso to the definition “Sale Price” in  Section  2(1)(zd)  of
the Act.  Said Section after such insertion of the proviso reads as under:
“(zd)  "sale  price"  means  the  amount  paid  or   payable   as   valuable
consideration for any sale, including-

(i) the amount of tax, if any, for which the dealer is liable  under Section
3 of this Act;

(ii) in relation to the delivery of goods on hire purchase or any system  of
payment by installments, the amount of valuable consideration payable  to  a
person for such delivery including hire charges, interest and other  charges
incidental to such transaction;

(iii) in relation to transfer of the right to use any goods for any  purpose
(whether or not for  a  specified  period)  the  valuable  consideration  or
hiring charges received or receivable for such transfer;

(iv) any sum charged for anything done by the dealer in respect of goods  at
the time of, or before, the delivery thereof;

(v) amount of duties levied or  leviable  on  the  goods  under  the Central
Excise Act,1944 (1 of 1944) or the Customs Act, 1962 (52 of  1962),  or  the
Punjab Excise Act, 1914 (1 of 1914) as  extended  to  the  National  Capital
Territory of Delhi whether such duties are payable  by  the  seller  or  any
other person; and

(vi) amount received or receivable by the seller by way of deposit  (whether
refundable or not) which has been received or is receivable whether  by  way
of separate agreement or not,  in  connection  with,  or  incidental  to  or
ancillary to the sale of goods;

(vii)  in  relation  to  works  contract  means  the  amount   of   valuable
consideration paid or payable to a dealer for the  execution  of  the  works
contract; less –

(a)  any sum allowed as  discount  which  goes  to  reduce  the  sale  price
according to the practice, normally, prevailing in trade;

(b) the cost of freight or delivery or the cost  of  installation  in  cases
where such cost is separately charged;

and the words "purchase price" with all  their  grammatical  variations  and
cognate expressions, shall be construed accordingly;

Provided that an amount equal to  increase  in  the  prices  of  petrol  and
diesel (including the duties and  levies  charged  thereon  by  the  Central
Government) taking effect from the 6th June 2006 shall not form part of  the
sale price of petrol and diesel sold on and after the date  of  promulgation
of this Ordinance till such date as the Government may, by  notification  in
the Official Gazette, direct:

Provided further that the first proviso  shall  not  take  effect  till  the
benefit is passed on to the consumers.

Explanation:-A dealer's sale price always includes the tax payable by it  on
making the sale, if any."

(The proviso for the sake of convenience has been highlighted in italics.)

5.    On 24.11.2006 Delhi Value Added Tax (Amendment) Act,  2006  came  into
force.  While repealing the  Ordinance,  Section  2  of  the  Amendment  Act
provided as under:
“2.   Amendment of Section 2:-  In the  Delhi  Value  Added  Tax  Act,  2004
[Delhi Act 3 of 2005] [hereinafter referred to as “the Principal  Act”],  in
Section 2, in sub-section  (1),  in  clause  [zd],  before  the  Explanation
occurring at the end thereof, the  following  provisos  shall  be  inserted,
namely –

“Provided that an amount equal to increase  in  the  prices  of  petrol  and
diesel [including the duties and  levies  charged  thereon  by  the  Central
Government] taking effect from the 6th June, 2006 shall  not  form  part  of
the sale price of petrol and diesel sold  on  and  after  the  date  of  the
commencement of the Delhi Value Added Tax [Amendment] Act,  2006  till  such
date as the Government may, by notification in the Official Gazette direct:

Provided further that the first proviso  shall  not  take  effect  till  the
benefit is passed on to the consumer.”

6.    On 30.11.2006 there was partial roll back  of  prices  of  Petrol  and
High Speed Diesel which had been enhanced with effect from 06.06.2006.   The
prices were again rolled back and brought to pre  06.06.2006  status  w.e.f.
16.02.2007.

7.    The appellant oil companies filed  their  VAT  Returns  with  the  Tax
Authorities on the footing that by reason of the continued operation of  the
first proviso to Section 2(1)(zd) they were permitted to  recover  VAT  only
on the amount of sale price currently charged, as reduced by the amounts  of
Rs.4/- per litre on Petrol and Rs.2/- per litre on High  Speed  Diesel.   In
other words, even after the partial roll back  which  came  into  effect  on
30.11.2006  and  complete  roll  back  w.e.f.  16.02.2007   the   appellants
continued to deduct amounts of Rs.4/- per litre on  Petrol  and  Rs.2/-  per
litre  on  High  Speed  Diesel  from   the   prevailing   sale   price   and
charged/recovered VAT in respect of sale price  so  reduced  by  Rs.4/-  and
Rs.2/- as stated above.

8.    On  05.06.2007  following  Gazette  Notification  was  issued  by  the
Government of NCT:
        “Notification No.F.3[8]/Fin.[T&E]/2007-08/ Dated 5th June, 2007
In exercise of the powers conferred by first proviso to clause [zd] of  sub-
section [1] of Section 2 of the Delhi Value Added Tax Act, 2004[Delhi Act  3
of 2005], the Lt. Government of the National  Capital  Territory  of  Delhi,
hereby, directs that the date of publication of  this  notification  in  the
Official Gazette, to be the date from which the proviso  referred  to  above
shall cease to be effective.

By order and in the name  of  the  Lt.  Governor  of  the  National  Capital
Territory of Delhi.
                                         [Ajay Kumar Garg]
                             Dy. Secretary Finance [T& E]”


9.     In October 2007, Notices of default under Section 32 of the Act  were
issued to the appellants. Notice dated 22.10.2007 issued to  the  appellants
in the lead matter i.e. Indo Burma Petroleum Company Ltd. stated as under:

      “……The exemption of VAT which  was  allowed  vide  notification  dated
24/11/2006 was only in respect of that portion of price of petrol  &  diesel
which was incremental to the price  of  petrol  &  diesel  prevalent  as  on
5/6/2006.  However, it has been observed that the  oil  company  even  after
reduction in the price of petrol & diesel has not  paid  VAT  on  an  amount
equal to the prices by which the price of petrol & diesel were increased  on
6/6/2006 which is not as per law.”


10.   The Notices as aforesaid having called upon the appellants to pay  VAT
and penalty, objections were taken by each of the appellants  under  Section
74 of the Act which  were  rejected  by  the  Additional  Commissioner  III,
Department of Trade and Taxes, Government of National Capital  Territory  of
Delhi vide Common order dated 04.08.2008.  It was observed:
“The amendment clearly says that to extend relief from the increase made  in
the price level of 05-06-2006  Govt.  declared  to  forgo  the  VAT  on  the
increased portion taking effect from 06-6-2006.  The  base  price  fixed  by
the Govt. in deciding the  exemption  was  the  price  level  prevailing  on
05.05.2006.  The amendment was made only to stop  the  prices  from  further
increase.  The Govt. had no intention to  allow  any  relief  on  the  price
level prevailing on 05.06.2006 and if any intention would  have  been  there
then such an amendment should have been  made  prior  to  06.06.2006.   Now,
with the reduction in price on 30-11-06 and 16-02-07 the  prices  came  down
to the level of 05.06.2006 and  with  prices  coming  at  the  level  it  is
implied that, the exemption allowed in VAT would cease as this would not  be
in conformity with the intentions  of  the  legislature.   The  notification
dated 05-06-2007 issued by the Govt. was done only  to  end  the  prevailing
confusion among the petroleum dealers.  Once the price decreased  on  16-02-
07 and brought at par with price on 05-06-2006, the notification  issued  by
the Govt. would deem to have become inoperative.  The penalty  imposed  upon
the dealers are consequential to the tax imposed.”

11.   The matters were carried in appeal by the  appellants,  namely  Appeal
Nos.134-147/ATVAT/08-09  and  other  connected   matters.    The   Appellate
Tribunal in its common judgment and order  dated  01.12.2011  dismissed  the
appeals as regards the main issue but set aside  the  demand  of  penalties.
It was observed, as under:
“17…. Tax is to be paid  as  per  Section  4  of  the  Act  on  the  taxable
turnover.  Taxable turnover is to be computed as per Section 5  r/w  Section
2(1)(zm) of the Act.  Section 2(1)zm) talks about the ‘sale  price’.   ‘Sale
price’ is defined by Section 2(1)(zd) as a valuable  consideration  for  any
sale including amount of tax payable under  the  Act.   (emphasis  in  bold)
Thus if a State Govt. wants to give relief against the  price  increased  by
the Central Government the it could only do so by not charging  tax  on  the
increased portion but for doing so it had to exclude the  increased  portion
from the purview of the expression ‘valuable consideration  for  any  sale’.
In our considered view purpose of the Govt. of NCT of Delhi  in  introducing
the proviso in question, when considered from  the  plain  language  of  the
proviso, was to direct the appellant dealers to continue to pay the  VAT  as
if there was no increase  in  the  prices  by  the  Central  Govt.   In  our
considered view, the act of the Govt. of NCT of  Delhi  in  introducing  the
proviso  in  question,  by  no  stretch  of  imagination,  could  goad   the
appellants to embark upon an  exercise  in  reducing  the  basic  price  for
calculating the VAT, as  argued  by  the  Ld.  Counsel  for  the  appellants
because simple meaning of this  proviso  is  that  oil  companies  were  not
required to include the increased component as a part of sale  consideration
under Section 2(1)(zd) of the Act.  When the increased component was not  to
be a part of sale consideration under  Section  2(1)(zd)  of  the  Act,  the
obviously the appellants were not to charge VAT  on  the  same  as  per  the
definition of  the  term  ‘sale  price’  which  came  to  be  controlled  by
introduction of the proviso in question.  When there was no  effect  of  the
increased component, in the liability to pay  Vat  then  it  was  immaterial
when there was complete roll back or when the  Notification  was  issued  as
per this proviso.  Thus in our considered view, the submission  of  the  Ld.
Counsel for the appellants  that  the  meaning  of  this  proviso  was  that
appellants shall continue to follow the deduction till another  notification
was issued which was in fact issued in June 2007 and oil  companies  stopped
taking benefit of the proviso after  this  notification  in  June  2007,  is
without any merit.”

12.    The  appellant-companies  being  aggrieved   in   so   far   as   the
interpretation placed on the first proviso to Section 2(1)(zd)  of  the  Act
was concerned, preferred appeals under Section 81  of  the  Act  before  the
High Court.  The High Court took the view that upon the  partial  roll  back
w.e.f. 30.11.2006 and upon the complete roll back w.e.f. 16.02.2007  benefit
of the proviso ceased to be partly or fully applicable.   According  to  the
High Court the proviso simply protected and gave  exemption  in  respect  of
enhanced ad valorem VAT payable on account of increase in petrol and  diesel
from 06.06.2006 and the benefit under the proviso ceased to  operate  partly
and fully on and w.e.f. partial and complete roll back respectively.   These
appeals by special leave challenge the correctness of the  decision  of  the
High Court.  We have  heard  Mr.  S.  Ganesh,  learned  Senior  Advocate  in
support of the appeals and Mr. Arvind Datar learned Senior Advocate for  the
respondents.

13.  According to the appellants, the benefit in terms  of  the  proviso  in
question was to the extent of VAT chargeable and payable in respect  of  the
amount of  increase and the benefit so quantified  must  be  made  available
regardless of any variation or  decrease in the rates  of  Petrol  and  High
Speed Diesel. For example, if the price before  the  increase  in  rates  is
taken to be x and the price were to be x+4 as a result  of  increase  w.e.f.
06.06.2006, the benefit  of  VAT  payable  in  respect  of  the  element  of
increase i.e. 4 must be available even if upon partial roll back  the  price
were to be x+1 or upon full roll back the price were to be x itself. If  the
logic is accepted, upon full roll back, according to the appellants the  VAT
would be payable on x-4.

14.   In our view, the proviso ought to be given normal and natural  meaning
keeping in mind the context,  object  and  reasons  for  its  enactment  and
incorporation.  The idea was to protect the interest  of  the  consumers  by
giving exemption in respect of enhanced ad valorem VAT  payable  on  account
of increase in prices of diesel and petrol from 06.06.2006.  On the  element
of increase no additional ad valorem VAT was payable and  according  to  the
proviso the increased component was not to be part  of  sale  consideration.
Consequently VAT was  not  to  be  charged  in  respect  of  such  increased
component, as per definition of the term  “sale  price”  which  came  to  be
controlled by introduction of the proviso.   When  there  was  no  increased
component and  therefore  no  liability  to  pay  VAT  in  respect  of  such
increased component, benefit under the proviso ceased to be applicable.  The
proviso cannot be given operation beyond the element of  increase,  so  much
so that even after complete roll  back,  the  benefit  in  respect  of  that
amount must operate. That certainly was not the intent.   The  idea  was  to
grant benefit only in respect of that element of VAT respecting increase  in
rates and not beyond.  If  that  component  of  increase  ceased  to  be  in
existence, the benefit of proviso also ceased to be in operation.

15.   We, therefore, affirm the  view  taken  by  the  High  Court  and  the
Appellate Authority and are not persuaded to take a different  view  in  the
matters.  Affirming the judgment  of  the  High  Court,  these  appeals  are
dismissed without any order as to costs.


                                                             ………………………….CJI.
    (T.S. Thakur)



                                                            .….………………………..J.
     (Uday Umesh Lalit)
New Delhi
May 13, 2016
-----------------------
13

whenever a charge is altered or added by the Court after the commencement of the trial, the prosecutor as well as the accused shall be allowed to recall or re-summon or examine any witnesses who have already been examined with reference to such alteration or addition. In such circumstances, the Court is to even allow any further witness which the Court thinks to be material in regard to the altered or additional charge.=In a case like this, addition and/or substitution of such a charge was bound to create prejudice to the appellants. Such a charge has to be treated as original charge. In order to take care of the said prejudice, it was incumbent upon the prosecution to re-call the witnesses, examine them in the context of the charge under Section 302 of IPC and allow the accused persons to cross-examine those witnesses. Nothing of that sort has happened. = the provisions of Sections 216 and 217 are mandatory in nature as they not only sub-serve the requirement of principles of natural justice but guarantee an important right which is given to the accused persons to defend themselves appropriately by giving them full opportunity. Cross- examination of the witnesses, in the process, is an important facet of this right. Credibility of any witness can be established only after the said witness is put to cross-examination by the accused person. In any case, it is not necessary to go into this aspect because of the reason that even if it is permissible for the prosecution to press the charge under Section 306 and even if it is presumed that such a charge is established, all the appellants have already suffered incarceration for more than eight years. For the same reason, we do not intend to go into the issue of conviction of these appellants under Section 364, when the charge was framed under Section 365 IPC. We, thus, reduce the sentence to the period already undergone and direct that the appellants shall be released forthwith, if not required in any other case.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL  NO(S). 2375/2009

R.RACHAIAH                                         APPELLANT(S)


                                    VERSUS


HOME SECRETARY, BANGALORE                          RESPONDENT(S)


                                    WITH

        CRIMINAL APPEAL NO. 2376/2009 & CRIMINAL APPEAL NO. 2377/2009




                               J U D G M E N T

A.K. SIKRI, J.

      The three appellants in these three appeals have  been  convicted  for
offences punishable under Sections 302 and 364 read with Section 34  of  the
Indian Penal Code (hereinafter referred to as 'IPC') and all three  of  them
have been directed to undergo sentence of life imprisonment for  the  charge
under Section 302 IPC read with Section 34 IPC and ten years in  respect  of
the charge under Section  364  IPC  read  with  Section  34  IPC.  Both  the
sentences are directed to run  concurrently.  The  conviction  and  sentence
recorded by the Trial Court has been affirmed  by  the  High  Court  in  the
impugned judgment dated 22.04.2009  resulting  into  the  dismissal  of  the
joint appeal which was filed by these three appellants.
      Though the case history is quite lengthy, having regard to the  aspect
which we intend to focus on and the fact that  on  that  aspect  only  these
appeals warrant to succeed, it is not  necessary  to  burden  this  judgment
with unnecessary factual details.  We would, therefore, be  eschewing  those
facts which are irrelevant for our purpose and would  be  taking  record  of
such facts that would be relevant to the issue on which we intend to  focus.

      The appellant/R. Rachaiah (hereinafter referred to as  “A-1”)  is  the
father  of  one  Prabhavati.   Her  marriage  was  solemnised  with  Dr.  N.
Shivakumar (since deceased) at Mysore on 28.05.2000. Within two days of  the
marriage, i.e. on 30.05.2000, Prabhavati consumed poison  and  as  a  result
she fell unconscious and was taken to B.M. Hospital at Mysore in a  critical
condition. In the night when Prabhavati had consumed poison, Dr.  Shivakumar
left Mysore and had gone back to Bangalore. On  31.05.2000,  he  along  with
his elder brother Rudraiah (PW-5) and uncle Andanaih traveled to  Mysore  in
a hired Tata Sumo to meet Prabhavati in the  hospital.  However,  when  they
were about 30 Kms. away from Mysore, as per the prosecution, Dr.  Shivakumar
telephoned  from  one  STD  booth  and  enquired  about  the  condition   of
Prabhavati when he was informed  that  she  was  dead.   On  receiving  this
information, Dr. Shivakumar attempted to  commit  suicide  by  slitting  his
throat by a blade at about 04.30 p.m. At that time he was in  the  car  with
his brother and uncle which was being  driven  to  Mysore.   In  an  injured
condition, he was shifted to the  General  Hospital  at  Bidadi  for  urgent
medical care. The case was  also  registered  against  him  for  attempt  to
commit suicide under Section 309 IPC with  the  Police  Station  at  Bidadi.
Next day, he was shifted to Shekhar Hospital at Bangalore  and  admitted  in
ICU.  In that hospital, he tried to commit suicide  again  by  consuming  30
Avil tablets when he was still in the hospital.
      As per the story put-forth  by  the  prosecution,  on  03.06.2000,  an
agreement was reached between A-1  on  the  one  hand  and  the  father  and
brother of Dr. Shivakumar on the other hand to end the marital  tie/disputes
and it was agreed that A-1 would be paid a sum of Rs. 8 lakhs to  compensate
for the marriage expenses which was incurred by him on the marriage  of  his
daughter Prabhavati. While the condition of Prabhavati  was  still  critical
and she was in the hospital,  on  07.06.2000,  her  statement  was  recorded
wherein she allegedly said that in the night of  30.05.2000  i.e.  about  10
p.m. while she was in the bedroom with Dr. Shivakumar, he  had  administered
poison to  her  suspecting  that  she  had  illicit  relationship  with  her
maternal uncle. Based on this statement of Prabhavati,  a  case  i.e.  Crime
No. 82/2000 was registered under  Section  498A  and  307  IPC  against  Dr.
Shivakumar at Mysore Police Station. At that time, as  already  pointed  out
above, Dr. Shivakumar was also in the  Shekhar  Hospital  in  Bangalore.  On
08.06.2000, he went to the toilet attached to the  ICU  and  cut  his  wrist
vein, which was another attempt on his part to commit suicide.
       On  09.06.2000,  Dr.  Shivakumar  was  got  discharged  from  Shekhar
Hospital at the instance of these appellants. The prosecution  alleges  that
it was against medical advice that the accused persons  got  him  discharged
and took him away to the house of A-1. On 10.06.2000, the dead body  of  Dr.
Shivakumar was found on the railway track near Naguvanahalli,  which  is  30
Kms. away Mysore. The body of Dr. Shivakumar was cut into two pieces due  to
the train running over him. The post-mortem of the dead body was  conducted.
 However, no case against anybody was  registered  either  for  suicidal  or
homicidal death even after receiving the post-mortem report. The  dead  body
of Dr. Shivakumar was taken and duly buried by performing  all  last  rites.
It appears that few days thereafter, i.e. on 28.06.2000, the father  of  the
deceased submitted a written complaint to the  Secretary,  Home  Department,
Government  of  Karnataka.  On  the   basis   of   this   complaint,   fresh
investigation to find out the cause of death was started. The  body  of  Dr.
Shivakumar  was  exhumed  and  again  medically  examined.  Even  the   said
examination did not implicate anybody. However, the father of  the  deceased
persisted with his complaint which led to constitution  of  a  Committee  of
five  expert  doctors  which  gave  its  report  (Exhibit  P-36).    Further
investigation was carried out on that basis and, ultimately, on  23.01.2002,
charge sheet was submitted in the Court. In this charge sheet filed  by  the
police, after investigation, it was alleged that a prima facie case  against
all the three accused persons was made out under Section 306  and  365  read
with Section 34 IPC. A-1 was arrested on 23.01.2002 itself and was  released
on bail on 06.03.2002. Thereafter, charges  were  framed  by  the  Court  of
Sessions on 19.02.2004 under Sections 306 and 365 read with Section  34  IPC
against all three accused. Trial proceeded on the basis  of  these  charges.
In all, 27 witnesses were examined which  included  seven  Police  Officers,
four  Doctors  and  two  Narcotic  Experts.  When  PW-26  was  examined   on
25.07.2006, thereafter, an application was filed by  the  prosecution  under
Section 216 of the Code of Criminal Procedure,  1973  (hereinafter  referred
to as “the Code”) for framing of additional charge under  Section  302  IPC.
This application  was  resisted  by  the  accused  persons.  However,  their
objections  were  rejected  and  on  30.09.2006,  the  Trial  Court   framed
“ALTERNATIVE CHARGE” under Section 302 IPC read  with  Section  34  IPC.  As
mentioned above, by that time,  26  witnesses  had  already  been  examined.
Thereafter,  only  one  more   witness   i.e.   PW-27/Deva   Reddi,   Deputy
Superintendent of Police was examined.  The  statement  of  accused  persons
under Section 313 of the Code was also recorded.
      The Trial Court convicted all the three accused persons under  Section
302 IPC read with Section 34 IPC and also under Section 364  IPC  read  with
Section 34 IPC. What follows from the above is that the appellants were  not
convicted of the original charge framed either under Section 306 or  Section
365 IPC. Instead of Section  306  IPC,  the  appellants  were  convicted  in
respect of 'alternative charge' under Section 302  IPC.  The  other  offence
for which they were charged was under Section 365  IPC  but  the  conviction
was recorded under Section 364 IPC on the ground that even when  the  charge
framed was under Section 365 IPC, the evidence produced by  the  prosecution
shows existence of all ingredients under Section 364 IPC.
      The appellants filed a  common  appeal  against  the  said  conviction
taking a specific plea to the effect that there  could  not  have  been  any
conviction under Section 302 IPC. In this regard, it was also pleaded  that,
the 'alternative charge' under Section 302 IPC was  wrongly  framed  without
following the procedure  under  Sections  216  and  217  of  the  Code  and,
therefore, the entire trial insofar as conviction under Section 302  IPC  is
concerned stood vitiated. It was further argued that there  could  not  have
been any conviction under Section 364 IPC as well  in  the  absence  of  any
specific charge under this section.   The  appellants  also  challenged  the
conviction on merits.
      The High Court, in detail, discussed the merits of the  case  and  did
not find favour with the arguments of the appellants.  It is  not  necessary
for us to go into this aspect as we find that the trial which  is  conducted
and on the basis of which conviction is recorded under Section  302  IPC  is
clearly vitiated as the same is in  violation  of  the  mandatory  procedure
prescribed under Sections 216 and 217 of the Code. These  two  sections  are
reproduced below:

“216. Court may alter charge.
(1) Any Court may alter or add to any charge at any time before judgment  is
pronounced.
(2) Every such alteration or addition shall be read  and  explained  to  the
accused.
(3) If the alteration or addition  to  a  charge  is  such  that  proceeding
immediately with the trial is not likely, in the opinion of  the  Court,  to
prejudice the accused in his defence or the prosecutor  in  the  conduct  of
the case, the Court  may,  in  its  discretion,  after  such  alteration  or
addition has been made, proceed with the trial as if the  altered  or  added
charge had been the original charge.
(4) If the alteration or addition is such that proceeding  immediately  with
the trial is likely, in the opinion of the Court, to prejudice  the  accused
or the prosecutor as aforesaid, the Court may either direct a new  trial  or
adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added  charge  is  one  for  the
prosecution of which previous sanction is necessary, the case shall  not  be
proceeded with until such sanction is obtained,  unless  sanction  has  been
already obtained for a prosecution on the same facts as those on  which  the
altered or added charge is founded.


217. Recall of witnesses when charge altered. Whenever a charge  is  altered
or added  to  by  the  Court  after  the  commencement  of  the  trial,  the
prosecutor and the accused shall be allowed-
(a) to recall or re-summon, and examine with reference  to  such  alteration
or addition, any witness who may have been examined, unless the  Court,  for
reasons to be recorded in writing, considers  that  the  prosecutor  or  the
accused, as the case may be, desires to recall or  re-examine  such  witness
for the purpose of vexation or delay or for defeating the ends of justice;
(b) also to call any  further  witness  whom  the  Court  may  think  to  be
material. B.- Joinder of charges

      The bare reading of Section 216 reveals that though it is  permissible
 for any Court to alter or add to any charge at any time before judgment  is
pronounced, certain safeguards, looking into the  interest  of  the  accused
person who is charged with the additional charge or with the  alteration  of
the additional charge, are also  provided  specifically  under  sub-sections
(3) and 4 of Section 216 of the Code. Sub-section(3), in no uncertain  term,
stipulates that  with  the  alteration  or  addition  to  a  charge  if  any
prejudice is going to be caused  to  the  accused  in  his  defence  or  the
prosecutor in the conduct of the case, the Court has  to  proceed  with  the
trial as if  it  altered  or  added  the  original  charge  by  terming  the
additional or alternative charge as original charge. The  clear  message  is
that it is to be treated as charge made for the first time and trial has  to
proceed from that stage. This position becomes further clear from  the  bare
reading of sub-section(4) of Section 216 of  the  Code  which  empowers  the
Court, in such a situation, to either direct a  new  trial  or  adjourn  the
trial for such period as may be necessary. A new trial is  insisted  if  the
charge is altogether different and distinct.

      Even if  the  charge  may  be  of  same  species,  the  provision  for
adjourning the trial is made to give sufficient opportunity to the   accused
to prepare and defend himself. It is, in the same process,  Section  217  of
the Code provides that whenever a charge is altered or added  by  the  Court
after the commencement of the trial, the prosecutor as well as  the  accused
shall be allowed to recall or re-summon or examine any  witnesses  who  have
already been examined with reference to  such  alteration  or  addition.  In
such circumstances, the Court is to even allow  any  further  witness  which
the Court thinks to be material in  regard  to  the  altered  or  additional
charge.

      When we apply the aforesaid principles to the facts of this case,  the
outcome becomes obvious. The accused persons were initially charged  for  an
offence under Section 306 of  the  IPC,  i.e.  abetting  suicide  which  was
allegedly committed by Dr. Shivakumar. It is  manifest  therefrom  that  the
entire case of the  prosecution,  even  after  repeated  investigations  and
medical examination of the dead body/skeleton of Dr.  Shivakumar,  was  that
the cause of the death was suicide. Thus, after the investigation, what  the
prosecution found was that Dr. Shivakumar had committed suicide and, as  per
the prosecution, the  three  appellants  had  aided  and  abetted  the  said
suicide which was committed by Dr. Shivakumar. On this specific  charge,  26
witnesses were examined and cross-examined  by  the  appellants.  Obviously,
when the appellants are charged with  an  offence  under  Section  306  i.e.
abetting the suicide, the focus  as well as stress in the  cross-examination
shall be on that charge alone. At the fag end of the trial,  the  charge  is
altered with “Alternative Charge” with  the  framing  of  the  charge  under
Section 302 IPC. This gives altogether a different complexion and  dimension
to the prosecution case.
      Now, the charge against the appellants was that  they  have  committed
murder of Dr. Shivakumar. In a case like this, addition and/or  substitution
of such a charge was bound to create prejudice to  the  appellants.  Such  a
charge has to be treated as original charge.  In order to take care  of  the
said prejudice, it  was  incumbent  upon  the  prosecution  to  re-call  the
witnesses, examine them in the context of the charge under  Section  302  of
IPC and allow the accused persons to cross-examine those witnesses.  Nothing
of that sort has happened.   As  mentioned  above,  only  one  witness  i.e.
official witness, namely, Deva Reddi, Deputy Superintendent of  Police,  was
examined and even he was examined on the same date i.e. 30.09.2006 when  the
alternative  charge  was  framed.  The  case  was  not  even  adjourned   as
mandatorily required under sub-Section (4) of Section 216 of the Code.

      In a case like  this,  with  the  framing  of  alternative  charge  on
30.09.2006, testimony of those witnesses recorded prior to that  date  could
even be taken into consideration. It hardly needs to  be  demonstrated  that
the provisions of Sections 216 and 217 are mandatory in nature as  they  not
only  sub-serve  the  requirement  of  principles  of  natural  justice  but
guarantee an important right which  is  given  to  the  accused  persons  to
defend themselves appropriately by  giving  them  full  opportunity.  Cross-
examination of the witnesses, in the process, is an important facet of  this
right. Credibility of any witness can be established  only  after  the  said
witness is put to cross-examination by the accused person.

      In the instant case, there is no cross-examination of these  witnesses
insofar as charge under Section 302 IPC is concerned. The trial,  therefore,
stands vitiated and there could not have been any conviction  under  Section
302 of the IPC.

      Though, in the given case, it would be  doubtful  as  to  whether  the
appellants can now be convicted under Section 306 IPC as  we,  prima  facie,
find that the charge under Section 302 was in substitution  of  the  earlier
charge under Section 306 as both the charges cannot  stand  together.  (See:
Sangaraboina Sreenu Vs State of A.P. (1997)5 SCC 348).

      In any case, it is not necessary to go into  this  aspect  because  of
the reason that even if it is permissible for the prosecution to  press  the
charge under Section 306 and even if it is presumed that such  a  charge  is
established, all the appellants  have  already  suffered  incarceration  for
more than eight years. For the same reason, we do not intend to go into  the
issue of conviction of these appellants under Section 364, when  the  charge
was framed under Section 365 IPC. We,  thus,  reduce  the  sentence  to  the
period already undergone and direct that the appellants  shall  be  released
forthwith, if not required in any other case.
      The appeals are, accordingly, allowed.



                                       ......................J.
                                                  [A.K. SIKRI]


                                             ......................J.
                                                  [R.K.AGRAWAL]
NEW DELHI;
MAY 05, 2016.

DNA test = the husbands plea that he had no access to the wife when the child was begotten stands proved by the DNA test report as, in the facts and circumstances of the case, it is possible to opine that the proof based on DNA test would be sufficient to dislodge the presumption under Section 112 of the Evidence Act. -The trial Court shall accordingly direct the petitioner, the respondent and the child of the respondent by name Shiva Kumar to undergo DNA test by referring them to Centre for Cellular and Molecular Biology, Habsiguda, Hyderabad. However, it is made clear that in case the respondent/wife accepts the directions that the trial court may issue in pursuance of the orders of this court, the DNA report will determine the conclusiveness of the veracity of the accusation levelled by the petitioner against her; but, in case she declines to comply with the directions, the allegations of the husband would be determined by the court below by drawing a presumption of the nature contemplated under section 114 of the Evidence Act especially in terms of illustration (h) thereof.

THE HON'BLE SRI JUSTICE  M. SEETHARAMA MURTI        

Civil Revision Petition no.5290 of 2011

11-02-2016

Govindula Sathaiah. Petitioner

Govindula Manjula .Respondent  

Counsel for the Petitioner:Sri P.V. Narayana Rao

Counsel for Respondent: Sri P. Laxma Reddy

<Gist :

>Head Note:

? Cases referred:

1.AIR 1993 SC 2295
2.AIR 2015 SC 418
3.2015(4) ALT 157

THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI          


Civil Revision Petition No.5290 of 2011

ORDER:

        The unsuccessful petitioner/husband filed this civil revision petition
under
Article 227 of the Constitution of India assailing the orders dated 21.09.2011
of
the learned Senior Civil Judge at Jagtial passed in IA.No.378 of 2011 in
OP.No.18
of 2008 filed under Section 45 of the Indian Evidence Act requesting to refer
the
petitioner, the respondent/his wife and her son Shiva Kumar for DNA test at
Centre for Cellular and Molecular Biology, Habsiguda, Hyderabad for
determination of parentage of the said male child Shiva Kumar by the Centre.
2.      I have heard the submissions of the learned counsel for the petitioner and
the learned counsel for the respondent.  I have perused the material record.
3.      The facts, which are necessary for consideration, in brief, are as
follows:
        The petitioner and the respondent are man and wife.  The petitioner filed
the original petition before the trial Court for grant of divorce by dissolution
of
the marriage between the parties and in that original petition, he had taken a
plea that he is not responsible for the birth of the male child-Shiva Kumar by
the
respondent and that he had no access to the respondent, who is the mother of
the said male child-Shiva Kumar and that the respondent had conceived the male
child on account of the illicit intimacy with one Mutyala Sathaiah and that,
therefore, it is, in the interests of justice, to refer the parties and the male
child
of the respondent to the said Centre to undergo DNA test.  The said application
was resisted by the respondent/wife by denying the allegations and inter alia
contending that no criminal case is filed on the grounds of adultery against the
respondent and the alleged person, who is said to be the father of the male
child; and, that the petition is filed to harass and defame the respondent and
to
create some ground to avoid payment of maintenance to the respondent; and,
that the respondent cannot be compelled to undergo DNA examination; and, that
the son is aged 3 years and that after lapse of three years, for the first time,
the
false allegations are made.  The trial Court, having considered the pleadings
and
submissions made before it and following the ratio in the decision of the
Supreme Court in Goutham Kundu v. State of West Bengal  had dismissed  
the application of the petitioner/husband.
4.      Feeling aggrieved, the present revision petition is filed and it is inter
alia
contended that the child Shiva Kumar to whom the respondent gave birth is not
the Son of the petitioner and that the respondent conceived the said child on
account of her illicit intimacy with one Mutyala Sathaiah and that to
substantiate
the allegation of infidelity urged in the divorce OP, the petitioner had made an
application before the Court below for directing the parties and the said child-
Shiva Kumar to undergo DNA test and that such a direction to the parties is
necessary to establish whether or not the petitioner had fathered the male child
born to the respondent/wife and that the Court below, in the facts and
circumstances of the case, ought to have ordered the petition as the petitioner
has gone to the extent of even naming the person who was the father of the
child born to the respondent/wife.  So contending, the learned counsel for the
petitioner had placed reliance on the decisions in Dipanwita Roy v. Ronobroto
Roy  and Manjudari Neerada @ Radhi v. M.P. Narasimha Rao .  He would  
submit that the Supreme Court in the latest decision had also considered not
only the decision which was followed by the trial Court but also the other
decisions holding the field and that the Supreme Court had finally held that the
husbands plea that he had no access to the wife when the child was begotten
stands proved by the DNA test report and that in the face of such a report, the
Court cannot compel the husband to bare the fatherhood of a child, when the
scientific report proves the contrary and that, therefore, in view of the latest
decision, the order of the trial Court brooks interference.   He had also
pointed
out from the decision cited, the following observations: We are conscious that
an innocent child may not be bastardised as the marriage between her
mother and father was subsisting at the time of her birth, but in view
of the DNA test reports and what we have observed above, we cannot
forestall the consequence.  It is denying the truth. Truth must
triumph is the hallmark of justice.
5.      On the other hand, the learned counsel for the respondent/wife would
submit that in the cited decision, which was followed by the trial Court, it was
laid that Courts in India cannot order DNA test as a matter of course and that
there must be a strong prima facie case and that the husband must establish non
access in order to dispel the presumption arising under Section 112 of the
Evidence Act and that it is for the court to carefully examine what would be the
consequence of ordering the blood test and that in the affidavit filed in
support
of the petition, the husband has baldly alleged non access but did not plead the
details as to during which period he did not have access to his wife and that in
the facts and circumstances of the case, the order impugned is sustainable and
needs no interference.
6.      I have bestowed my attention to the facts and the submissions.  I have
gone through the precedents cited.
7.      Reverting to the facts of the case, it is to be noted that the
petitioner/husband made categorical assertions regarding the infidelity of his
wife
in the petition filed by him for divorce and also in the affidavit filed in
support of
the instant petition.  He has gone to the extent of naming the person, who was
the father of the male child-Shiva Kumar born to the respondent/wife.  On the
ground that the wife gave birth to a child, who was not fathered by the
petitioner, the divorce was sought.  The law is now well settled that depending
upon the facts and circumstances of the case, it would be permissible for a
Court
to direct for holding of a DNA test to determine the veracity of the allegations
which constitute one of the grounds on which the petitioner would either
succeed or lose.  In the decision in Dipanwita Roy (2nd cited), the Supreme
Court having noted the provision of Section 112 of the Indian evidence Act held
as follows:
We may remember that Section 112 of the Evidence Act was enacted  
at a time when the modern scientific advancement and DNA test
were not even in contemplation of the legislature. The result of DNA
test is said to be scientifically accurate. Although Section 112 raises
a presumption of conclusive proof on satisfaction of the conditions
enumerated therein but the same is rebuttable. The presumption
may afford legitimate means of arriving at an affirmative legal
conclusion. While the truth or fact is known, in our opinion, there is
no need or room for any presumption. Where there is evidence to the
contrary, the presumption is rebuttable and must yield to proof. The
interest of justice is best served by ascertaining the truth and the
court should be furnished with the best available science and may
not be left to bank upon presumptions, unless science has no answer
to the facts in issue. In our opinion, when there is a conflict between
a conclusive proof envisaged under law and a proof based on
scientific advancement accepted by the world community to be
correct, the latter must prevail over the former.
Here in the present case, the husband has categorically pleaded that he has no
access to the wife and that he had not fathered the child.  Therefore, there is
a
likelihood that the husbands plea that he had no access to the wife when the
child was begotten stands proved by the DNA test report as, in the facts and
circumstances of the case, it is possible to opine that the proof based on DNA
test would be sufficient to dislodge the presumption under Section 112 of the
Evidence Act.  This Court is in agreement with the argument of the learned
counsel for the petitioner that but for the DNA test it would be impossible for
the
petitioner/husband to establish and confirm the assertions made in the
pleadings.  Therefore, this court is satisfied that a direction can be issued as
prayed for in the petition of the husband.  Having regard to the above analysis
and the precedential guidance in the decision in Dipanwita Roy (2nd cited),
which is binding on the parties as the facts of the case before the Supreme
Court
bear close similarity to the facts of the case which this Court is dealing
presently,
this Court finds that the order impugned brooks interference.
8.      In the result, the Civil Revision Petition is allowed and the order
impugned
is set aside.  The trial Court shall accordingly direct the petitioner, the
respondent and the child of the respondent by name Shiva Kumar to undergo 
DNA test by referring them to Centre for Cellular and Molecular Biology,
Habsiguda, Hyderabad.  However, it is made clear that in case the
respondent/wife accepts the directions that the trial court may issue in
pursuance of the orders of this court, the DNA report will determine the
conclusiveness of the veracity of the accusation levelled by the petitioner
against
her; but, in case she declines to comply with the directions, the allegations of
the
husband would be determined by the court below by drawing a presumption of 
the nature contemplated under section 114 of the Evidence Act especially in
terms of illustration (h) thereof.
      There shall be no order as to costs.
      Miscellaneous petitions pending, if any, in this civil revision petition
shall
stand closed.
_____________________  
M. SEETHARAMA MURTI, J    
11th February 2016

the prosecution has to fail due to non-compliance of the mandatory requirements of Section 20A of the TADA Act= “20-A Cognizance of offence. (1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police. (2) No court shall take cognizance of any offence under this Act without the previous sanction of the Inspector-General of Police, or as the case may be, the Commissioner of Police.”=since the prior approval of the District Superintendent of Police was not taken in the instant case, the trial got vitiated on this ground itself. The appeals filed by the convict persons being Criminal Appeal Nos. 464-466 of 2013 are allowed setting aside their conviction.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                   CRIMINAL APPEAL  NO(S).  2464-2466/2014


STATE OF RAJASTHAN                             APPELLANT(S)

                                VERSUS

MOHINUDDIN JAMAL ALVI & ANR.                  RESPONDENT(S)



                                    WITH
                      CRIMINAL APPEAL NOs. 464-466/2013



                               J U D G M E N T


A.K. SIKRI,J.



      All these appeals arise out of  a  common  judgment  dated  24.04.2012
rendered by the Designated Court for Rajasthan  at  Ajmer  in  TADA  Special
Case Nos. 1, 2 & 3 of 1999.

      Four accused persons were arrayed and prosecuted  by  the  prosecution
under Sections 3(2)(ii), 3(3) and  6(1)  of  the  Terrorist  and  Disruptive
Activities (Prevention) Act, 1987(hereinafter referred to as “TADA Act”  and
 Section 4A  of the Explosive Substances Act,1908.      The TADA  Court  has
acquitted two accused, namely, M. Jamal Alvi and Habib Ahmed. Against  their
acquittal, State of Rajasthan has filed  appeals  which  are  registered  as
Criminal Appeal Nos. 2464-66  of  2014.  Other  two  accused,  namely,  Abre
Rehmat Ansari @ Qari and Dr. Mohd. Jalees Ansari,  have  been  convicted  by
the TADA Court and challenging that conviction,  these  persons  have  filed
Criminal Appeal Nos. 464-466 of 2013. It is for this reason, we  have  heard
all these appeals together which  are  being  disposed  of  by  this  common
judgment.

      Mr. R.K. Dash, learned senior counsel,  appearing  for  the  convicted
accused persons submitted at the outset that he would not be going into  the
merits of the case because of the reason that the prosecution  has  to  fail
due to non-compliance of the mandatory requirements of Section  20A  of  the
TADA Act. For this reason, we are eschewing any discussion on the merits  of
the case.  Section 20A deals with the cognizance of offense that has  to  be
taken under TADA Act and reads as under :-

         “20-A  Cognizance of offence.
(1)   Notwithstanding anything  contained  in  the  Code,   no   information
about  the commission of an offence under this Act shall  be   recorded   by
the  police without the prior approval of  the  District  Superintendent  of
Police.

(2)   No court shall  take  cognizance  of  any  offence  under   this   Act
without  the previous sanction of the Inspector-General of  Police,  or   as
the  case  may be, the Commissioner of Police.”


      As per the aforesaid Section, no information about the  commission  of
offense under TADA is to be  recorded  by  the  police  without  the   prior
approval of District Superintendent of Police. The specific authority  which
is named under sub-Section (1) of Section 20A is District Superintendent  of
Police. In the present case, it is on record  that  the  approval  that  was
taken was of Additional Director General of Police Mr.  Shyam  Partap  Singh
Rathore. The TADA Court has treated the said approval as  valid  because  of
the reason that approval is given by an authority which is higher  than  the
District Superintendent  of  Police.  The  question,  therefore,  is  as  to
whether it is only District Superintendent of  Police  whose  approval  will
meet the requirements of law or it can be given  by  an  Officer  higher  in
rank. This question is no more res integra and is settled  by  a  series  of
judgments of this Court. It is not necessary to give account  of  all  those
judgments as in the latest  judgment  rendered  by  this  Court  in  Hussein
Ghadially @ M.H.G.A.Shaikh & Ors. vs. State of Gujarat  (2014)  8  SCC  425,
all the previous precedents are taken note of and on that basis, this  Court
has reiterated the position in law that even an  authority  higher  in  rank
would not  be  competent  to  give  the  approval  as  required  under  sub-
Section(1)of Section 21A of the TADA Act. The same has been interpreted   in
the said judgment in the following manner:
“21.  A careful reading of the above leaves no  manner  of  doubt  that  the
provision starts with a non obstante  clause  and  is  couched  in  negative
phraseology. It forbids recording of information  about  the  commission  of
offences under TADA  by  the  Police  without  the  prior  approval  of  the
District Superintendent of Police. The question  is  whether  the  power  of
approval vested in the District Superintendent of Police could be  exercised
by either the Government or the Additional  Police  Commissioner,  Surat  in
the instant case. Our answer to  that  question  is  in  the  negative.  The
reasons are not far to seek:

21.1  We say so firstly because the statute vests the grant approval  in  an
authority specifically designated for the purpose. That  being  so,  no  one
except the authority so designated,  can  exercise  that  power.  Permitting
exercise of the power by any other authority whether  superior  or  inferior
to the authority designated by the Statute  will  have  the  effect  of  re-
writing the provision and defeating the legislative purpose behind the  same
- a course that is legally impermissible. In Joint Action Committee  of  Air
Line Pilots’ Association of India V.  Director  General  of  Civil  Aviation
(2011) 5 SCC 435, this Court declared  that  even  senior  officials  cannot
provide any guidelines or direction to the authority under  the  statute  to
act in a particular manner.

21.2. Secondly, because  exercise  of  the  power  vested  in  the  District
Superintendent of Police under Section 20-A (1)  would  involve  application
of mind by the officer concerned to the material placed before  him  on  the
basis whereof,  alone  a  decision  whether  or  not  information  regarding
commission of an offence  under  TADA  should  be  recorded  can  be  taken.
Exercise of the power granting or refusing approval under Section  20-A  (1)
in its very nature casts a duty upon the officer concerned to  evaluate  the
information and determine  having  regard  to  all  attendant  circumstances
whether or not a case for invoking the  provisions  of  TADA  is  made  out.
Exercise of that power by anyone other than the  designated  authority  viz.
the District Superintendent of Police would amount to such  other  authority
clutching at the jurisdiction of the  designated  officer,  no  matter  such
officer or authority purporting to exercise that power is superior  in  rank
and position to the officer authorised by law to take the decision.



21.3. Thirdly, because if the Statute provides for a thing to be done  in  a
particular manner, then it must be done in  that  manner  alone.  All  other
modes  or  methods  of  doing  that  thing  must  be  deemed  to  have  been
prohibited. That proposition of law first was stated  in  Taylor  v.  Taylor
(1875)LR 1 ChD 426 and adopted later by  the  Judicial  Committee  in  Nazir
Ahmed v. King Emperor AIR 1936 PC 253 and by  this  Court  in  a  series  of
judgments including those in Rao Shiv Bahadur  Singh  &  Anr.  v.  State  of
Vindhya Pradesh AIR 1954 SC 322, State of Uttar Pradesh  v.  Singhara  Singh
AIR 1964 SC 358, Chandra Kishore Jha v. Mahavir Prasad  1999  (8)  SCC  266,
Dhananjaya Reddy v. State of Karnataka 2001  (4)  SCC  9  and  Gujarat  Urja
Vikas Nigam Ltd. V. Essar Power Ltd. 2008 (4) SCC 755. The principle  stated
in the above decisions applies to the cases at hand  not  because  there  is
any specific procedure that is  prescribed  by  the  Statute  for  grant  of
approval but because if the approval could  be  granted  by  anyone  in  the
police hierarchy the provision specifying the authority for  grant  of  such
approval might as well not have been enacted.”





      In arriving at the aforesaid conclusion, the Court  also  referred  to
and  relied  upon  the  three  Judge  Bench  decision  of  this   Court   in
Anirudhsinhji Karansinhji Jadeja & Anr. Vs State of  Gujarat  (1995)  5  SCC
302, in which the position in law was stated in the following manner:

“11. The case against the appellants originally was registered on  19-3-1995
under the Arms Act. The DSP did not give any prior approval on  his  own  to
record any information about the commission of an  offence  under  TADA.  On
the contrary, he made a report to the Additional Chief Secretary  and  asked
for permission to proceed under TADA. Why? Was it because he  was  reluctant
to exercise jurisdiction vested in him by the provision of Section  20-A(1)?
This is a case of power conferred upon one authority being really  exercised
by another. If a statutory authority has been vested with  jurisdiction,  he
has to exercise it according to its own discretion.  If  the  discretion  is
exercised under the direction or in compliance with some higher  authority’s
instruction, then it will be  a  case  of  failure  to  exercise  discretion
altogether. In other words, the discretion vested in the DSP  in  this  case
by Section 20-A(1) was not exercised by the DSP at all.”


      Learned counsel appearing for the State of Rajasthan  tried  to  argue
that the Division Bench in the  aforesaid  judgment   in  Hussein  Ghadially
@M.H.G.A.Shaikh & Ors. (Supra) did not interpret the  decision  rendered  in
Anirudhsinhji Karansinhji Jadeja & Anr. (Supra) correctly. As  according  to
him, in Anirudhsinhji Karansinhji Jadeja &  Anr.  (Supra),  this  Court  had
given one more reason for quashing the TADA proceedings which  is  contained
in para 15 of the said judgment, as in the said para, the Court  noted  that
the State Government had given sanction without even discussing  the  matter
with  the  Investigating  Officer  and  without  assessing   the   situation
independently which showed lack of proper and due  application  of  mind  of
the State Government by giving sanction/consent. His  submission  predicated
on para 15 of the said judgment that the prosecution  would  be  treated  as
bad in law only if there was a default on the  part  of  the  prosecutor  on
both the aspects, namely, only when violation of sub-Section(1)  of  Section
20A as well as grant of prior approval by  the  District  Superintendent  of
Police is not  there  and  also  when  the  State  Government  while  giving
sanction/consent has not applied its mind independently.  We  do  not  agree
with the contention of the learned counsel for the State. From  the  reading
of the judgment in Anirudhsinhji  Karansinhji  Jadeja  &  Anr.  (Supra),  it
becomes clear that this Court had given  the  aforesaid  two  reasons  while
holding that the trial against the accused persons in the  said  case  under
TADA was vitiated.  However, that does not mean that both the  reasons  have
to be satisfied. Even both are independent of each other  and  even  if  one
violation is found that would be sufficient to  upset  the  trial.  That  is
what this Court did in  Hussein Ghadially @ M.H.G.A.Shaikh & Ors. (Supra).

      From the aforesaid it becomes clear that since the prior  approval  of
the District Superintendent of Police was not taken  in  the  instant  case,
the trial got vitiated on this ground  itself.  The  appeals  filed  by  the
convict persons being Criminal Appeal  Nos.  464-466  of  2013  are  allowed
setting aside their conviction. The other appeals  which  are  preferred  by
the State being Criminal Appeal Nos. 2464-2466 of 2014 are dismissed.
      The two convicts, namely, Abre Rehmat Ansari  @  Qari  and  Dr.  Mohd.
Jalees Ansari shall be released forthwith, if they are not required  in  any
other case.


                                       ......................J.
                                                  [A.K. SIKRI]


                                             ......................J.
                                                  [R.K.AGRAWAL]
NEW DELHI;
MAY 04, 2016.

The Tribunal being the last forum of appreciation of facts has held that transfer of iron ore pellets by IIL to IMIL was not a sale of goods but was only a transfer of raw materials procured under the Tripartite Agreement between the two of them and the supplier of the said pellets.-circular makes it clear that a distinction is made between inputs on which credit has been taken which are removed on sale, and those which are removed on transfer. If removed on sale, “transaction value” on the application of Section 4(1)(a) of the valuation rules is to be looked at. However, where the goods are entirely transferred to a sister unit, it is reasonable to adopt the value shown in the invoice on the basis of which Cenvat Credit was taken by the assessee i.e. the invoice of the supplier of the pellets to the assessee.=it is a case of transfer and not sale of pellets, no infirmity can be found with the Tribunal’s judgment, which only follows the circular dated 1.7.2001. In addition, the Tribunal was also correct in holding that post manufacturing expenses cannot be loaded on to the amount equal to the duty of excise leviable on such goods as this amount would, then, cease to be an amount equal to the duty of excise but would be something more. On both these counts therefore, we find that the Tribunal is justified in its finding on law, which is based on its finding of fact that the present is a case of transfer and not sale. This being the case, it is unnecessary to consider any of the other submissions made by the learned counsel including the point of limitation. The appeals are, accordingly, dismissed.

                                 REPORTABLE




                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2562 OF 2008





      COMMISSIONER OF CENTRAL EXCISE,
      RAIGAD                                                ....APPELLANT




                                   VERSUS


      M/S. ISPAT METALLICS INDUSTRIES
      LTD. & ORS.                              ….RESPONDENTS


                                    WITH


                        CIVIL APPEAL NO.8557 OF 2015




                              J U D G M E N T



R.F. Nariman, J.

1.    Two appeals have been filed from a common  decision  of  CESTAT  dated
11.10.2005, whereby the Tribunal has upset the order  of  the  Commissioner,
confirming various duty demands, penalty and interest.

2.    The brief facts necessary in order to appreciate  the  controversy  at
hand, taken from C.A. No.2562 of 2008, are as follows.



3.    M/s. Ispat Industries Limited (hereinafter referred to as  the  “IIL”)
is engaged in the manufacture of HR coils, sheets, plates, etc.,  which  are
cleared on payment of duty of excise.  In the manufacture of such goods,  it
avails credit on inputs such as iron ore pellets.  Adjacent  to  its  plant,
another  group  company,  namely,  M/s.  Ispat  Metallics  Industries   Ltd.
(hereinafter referred to as the “IMIL”) also has  a  factory  in  which  pig
iron and molten metal are  manufactured.  The  principal  raw  material  for
manufacture for both these companies is iron ore pellets.  The said  pellets
were purchased from Mandovi Pellets and Essar  Steel  Limited.   These  were
carried to the factory of IIL.  Credit was availed by IIL of the  duty  paid
on the entire quantity so procured.  As and  when  required  by  the  sister
company IMIL, pellets were transferred through a conveyor from  IIL’s  plant
to IMIL’s premises under cover of an invoice  and  on  reversing  an  amount
equal to the Cenvat credit availed on inputs that were so  transferred.   In
addition to  such  invoices,  IIL  also  raised  debit  notes  on  IMIL  for
recovering actual expenditure incurred by it in relation  to  the  procuring
of such iron ore pellets, such as bank commission, interest, etc.



4.    The aforesaid two companies  were  issued  show  cause  notices  dated
29.9.2003 and  14.10.2003  respectively.   It  was  alleged  that  iron  ore
pellets were sold by IIL to IMIL and that the amounts recovered  by  IIL  in
the  form  of  debit  notes  towards  bank  charges,  interest,  etc.   were
includible in the assessable value of such inputs that  were  cleared.   The
notice alleged that the reversal of credit equal to the amount paid  to  the
supplier which was being followed by IIL was not in compliance with law.



5.    The learned Commissioner upheld the show cause  notices  stating  that
the transaction between IIL and IMIL was  one  of  sale  and  not  transfer.
Since the goods were reassessed to duty in terms of  Rule  57AB(1C)  of  the
Central Excise Rules, 1944 and Rule 3(4) of the Cenvat Credit  Rules,  2001,
the assessable value in terms of Section 4(1)(a) of the Central  Excise  Act
i.e., the transaction value at the time of  clearance  plus  any  additional
consideration paid by the buyer at  a  later  stage  is  to  be  added  and,
therefore, the amounts mentioned in the debit note from  IIL  to  IMIL  were
also  includible  in   the   assessable   duty   valuation   as   additional
consideration.  The extended period for limitation  was  also  found  to  be
available on the facts of the present case.



6.    The Tribunal reversed the aforesaid decision on the  ground  that  the
transfer of iron ore pellets by IIL to IMIL was not a sale of goods but  was
transfer of raw materials,  jointly  procured,  under  a  joint  procurement
policy which was followed by the  two  sister  companies  and  this  becomes
clear on a reading of the tripartite agreement between the supplier  of  the
pellets, IIL, and IMIL.  This being so,  the  Tribunal  applied  a  circular
dated 1.7.2002 by which, where no sale is involved but only  a  transfer  by
one sister unit to another, the value shown in the invoice on the  basis  of
which Cenvat credit was taken by the assessee would be  the  value  for  the
purpose of Rule 57AB and Rule 3(4). It  was  further  held  that  additional
consideration could not be added inasmuch as the amount  spoken  of  in  the
Rule 57AB and Rule 3(4) is an amount equal to the duty of  excise  which  is
leviable on such goods.  Post manufacturing expenses cannot possibly  amount
to a duty of excise leviable on such goods and therefore  all  amounts  paid
under the debit notes between IIL and IMIL could not be added to  the  value
of those goods. Further, the invoice value of the supplier alone was  to  be
taken  into  account  and,  consequently,  the  judgment  of   the   learned
Commissioner was set aside, not only on  merits,  but  also  on  limitation,
following the judgments of the Tribunal itself and of this Court.



7.    Shri Radhakrishnan has read to us in detail  the  show  cause  notices
and the Commissioner’s judgment dated 24.12.2004, which is  strongly  relied
upon by him in support of his case.  It is his case that  a  proper  reading
of the relevant rules would make it clear  that  what  has  to  be  seen  is
transaction value under Section 4(1)(a) of the Central Excise  Act  and  not
invoice value of the supplier of the  iron  ore  pellets.   This  being  so,
according to him, the learned Commissioner is right  in  his  reasoning  and
the Tribunal’s judgment should be reversed.







8.    Shri V.  Lakshmikumaran,  the  learned  counsel,  on  the  other  hand
supported the decision of the Tribunal and argued that on a reading  of  the
Rules the rate applicable to such goods would be as on the date  of  removal
but value would necessarily be that determined for such goods under  Section
4 or 4A of the Central Excise Act which would be the invoice  value  of  the
iron ore pellets cleared by  the  supplier  of  those  pellets.   He  relied
strongly on the circular dated 1.7.2002, which was also relied upon  by  the
Tribunal, and further went on to argue that  there  was  no  suppression  of
facts in this case and, hence, the extended period of limitation  could  not
possibly have been applied to the facts of this case.



9.    Having heard the learned counsel for the parties, it is  important  to
first set out the relevant rules.   Rule  57AB(1C)  of  the  Central  Excise
Rules, 1944 and Rule 3(4) of the Cenvat Credit Rules, 2001 as they  read  at
the relevant time, read as follows:-



           “57(1C)     When inputs or capital goods, on  which  credit  has
           been  taken,  are  removed  as  such  from  the   factory,   the
           manufacturer of the final products shall pay an amount equal  to
           the duty of excise which is leviable on such goods at  the  rate
           applicable to such goods on the date of such removal and on  the
           value determined for such goods under  Section  4  of  the  said
           Central Excise Act, and such removal shall  be  made  under  the
           cover of an invoice referred to in rule 52A.”

           Rule 3(4)   When inputs or capital goods, on which CENVAT credit
           has been taken, are  removed  as  such  from  the  factory,  the
           manufacturer of the final products shall pay an amount equal  to
           the duty of excise which is leviable on such goods at  the  rate
           applicable to such goods on the date of such removal and on  the
           value determined for such goods under Section 4 or Section 4A of
           the Act, as the case may be, and  such  removal  shall  be  made
           under the cover of an invoice referred to in rule 7.”







10.   The Tribunal being the last forum of appreciation of  facts  has  held
that transfer of iron ore pellets by IIL to IMIL was not  a  sale  of  goods
but was only a transfer of  raw  materials  procured  under  the  Tripartite
Agreement between the two of them and the  supplier  of  the  said  pellets.
This is a pure finding of fact and Shri Radhakrishnan has not been  able  to
dislodge this finding of fact. This being the case, the application  of  the
circular of 1.7.2002 becomes important.  Paragraph 14 of the  said  circular
reads as under:-



|14. |How will valuation|Where inputs or capital goods, on |
|    |be done when      |which credit has been taken, are  |
|    |inputs or capital |removed as such on sale, there    |
|    |goods, on which   |should be no problem in           |
|    |CENVAT credit has |ascertaining the transaction value|
|    |been taken are    |by application of sec.4(1)(a) or  |
|    |removed as such   |the Valuation Rules.  [Provided   |
|    |from the factory, |tariff values have not been fixed |
|    |under the         |for the inputs or they are not    |
|    |erstwhile sub rule|assessed under Section 4A on the  |
|    |(1C) of rule 57AB |basis of MRP ]                    |
|    |of the Central    |There may be cases where the      |
|    |Excise Rules,     |inputs or capital goods are       |
|    |1944, or under    |removed as such to a sister unit  |
|    |rule 3(4) of the  |of the assessee or to another     |
|    |Cenvat Credit     |factory of the same company and   |
|    |Rules, 2001 or    |where no sale is involved. It may |
|    |2002 ?            |be noticed that sub rule (1C) of  |
|    |                  |Rule 57AB of the erstwhile Central|
|    |                  |Excise Rules, 1944 and Rule 3(4)  |
|    |                  |of the Cenvat Credit Rules 2001   |
|    |                  |(now 2002, talk of determination  |
|    |                  |of value for “such goods” and not |
|    |                  |the “said goods”. Thus, if the    |
|    |                  |assessee partly sells the inputs  |
|    |                  |to independent buyers and partly  |
|    |                  |transfers to its sister units, the|
|    |                  |transaction value of “such goods” |
|    |                  |would be available in the form of |
|    |                  |the transaction value of inputs   |
|    |                  |sold to an unrelated buyer (if the|
|    |                  |sale price to the unrelated buyer |
|    |                  |varies over a period of time, the |
|    |                  |value nearest to the time of      |
|    |                  |removal should be adopted).       |
|    |                  |Problems will, however, arise     |
|    |                  |where the assessee does not sell  |
|    |                  |the inputs/ capital goods to any  |
|    |                  |independent buyer and the only    |
|    |                  |removal of such input/ capital    |
|    |                  |goods, outside the factory, is in |
|    |                  |the nature of transfer to a sister|
|    |                  |unit. In such a case proviso to   |
|    |                  |rule 9 will apply and provisions  |
|    |                  |of rule 8 of the valuation rules  |
|    |                  |would have to be invoked. However,|
|    |                  |this would require determination  |
|    |                  |of the ‘cost of production or     |
|    |                  |manufacture’, which would not be  |
|    |                  |possible since the said inputs/   |
|    |                  |capital goods have been received  |
|    |                  |by the assessee from outside and  |
|    |                  |have not been produced or         |
|    |                  |manufactured in his factory.      |
|    |                  |Recourse will, therefore, have to |
|    |                  |be taken to the residuary rule 11 |
|    |                  |of the valuation rules and the    |
|    |                  |value determined using reasonable |
|    |                  |means consistent with the         |
|    |                  |principles and general provisions |
|    |                  |of the valuation rules and        |
|    |                  |sub-section (1) of sec. 4 of the  |
|    |                  |Act. In that case it would be     |
|    |                  |reasonable to adopt the value     |
|    |                  |shown in the invoice on the basis |
|    |                  |of which CENVAT credit was taken  |
|    |                  |by the assessee in the first      |
|    |                  |place. In respect of capital goods|
|    |                  |adequate depreciation may be given|
|    |                  |as per the rates fixed in letter F|
|    |                  |No. 495/16/93-Cus.VI dated        |
|    |                  |26.5.93, issued on the Customs    |
|    |                  |side.                             |




11.   A reading of this circular makes it clear that a distinction  is  made
between inputs on which credit has been taken which  are  removed  on  sale,
and those which are removed on transfer.  If removed on  sale,  “transaction
value” on the application of Section 4(1)(a) of the valuation  rules  is  to
be looked at.  However, where  the  goods  are  entirely  transferred  to  a
sister unit, it is reasonable to adopt the value shown  in  the  invoice  on
the basis of which Cenvat Credit was taken by the assessee i.e. the  invoice
of the supplier of the pellets to the assessee.



12.   As it is clear that the present is a case of transfer and not sale  of
pellets, no infirmity can be found with the Tribunal’s judgment, which  only
follows the circular dated 1.7.2001.  In addition,  the  Tribunal  was  also
correct in holding that post manufacturing expenses cannot be loaded  on  to
the amount equal to the duty of  excise  leviable  on  such  goods  as  this
amount would, then, cease to be an amount equal to the duty  of  excise  but
would be something more.  On both these counts therefore, we find  that  the
Tribunal is justified in its finding on law, which is based on  its  finding
of fact that the present is a case of transfer and not sale. This being  the
case, it is unnecessary to consider any of the  other  submissions  made  by
the learned counsel including the point of  limitation.   The  appeals  are,
accordingly, dismissed.





                                        ……………………J.

                                        (A.K. Sikri)





                                        ……………………J.

                                        (R.F. Nariman)

New Delhi;

May 6, 2016