LAW FOR ALL

Friday, May 26, 2017

categorized eve-teasing into five heads, viz. (1) verbal eve-teasing; (2) physical eve-teasing; (3) psychological harassment; (4) sexual harassment; and (5) harassment through some objects. The present case eminently projects a case of psychological harassment. We are at pains to state that in a civilized society eve-teasing is causing harassment to women in educational institutions, public places, parks, railways stations and other public places which only go to show that requisite sense of respect for women has not been socially cultivated. A woman has her own space as a man has. She enjoys as much equality under Article 14 of the Constitution as a man does. The right to live with dignity as guaranteed under Article 21 of the Constitution cannot be violated by indulging in obnoxious act of eve- teasing. It affects the fundamental concept of gender sensitivity and justice and the rights of a woman under Article 14 of the Constitution. That apart it creates an incurable dent in the right of a woman which she has under Article 15 of the Constitution. One is compelled to think and constrained to deliberate why the women in this country cannot be allowed to live in peace and lead a life that is empowered with a dignity and freedom. It has to be kept in mind that she has a right to life and entitled to love according to her choice. She has an individual choice which has been legally recognized. It has to be socially respected. No one can compel a woman to love. She has the absolute right to reject. 46. In a civilized society male chauvinism has no room. The Constitution of India confers the affirmative rights on women and the said rights are perceptible from Article 15 of the Constitution. When the right is conferred under the Constitution, it has to be understood that there is no condescendation. A man should not put his ego or, for that matter, masculinity on a pedestal and abandon the concept of civility. Egoism must succumb to law. Equality has to be regarded as the summum bonum of the constitutional principle in this context. The instant case portrays the deplorable depravity of the appellant that has led to a heart breaking situation for a young girl who has been compelled to put an end to her life. Therefore, the High Court has absolutely correctly reversed the judgment of acquittal and imposed the sentence. It has appositely exercised the jurisdiction and we concur with the same.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 775 OF 2017
(arising out of S.L.P. (Crl) No. 8998 of 2016)

Pawan Kumar ...Appellant

Versus

State of H.P. ...Respondent

J U D G M E N T

Dipak Misra, J.

The present appeal, by special leave, depicts the sorrowful story of
a young girl, in the middle of her teens, falling in love with the accused-
appellant and driven by the highest degree of youthful fixation, elopes
with him, definitely in complete trust, and after the accused is booked for
the offences punishable under Sections 363, 366 and 376 of the Indian Penal
Code (IPC), she stands behind him like a colossus determined to support
which consequently leads to his acquittal. In all possibility, she might
have realized that the accused should not be punished, for she was also
equally at fault. Be that as it may, as per the prosecution version, he
was extended the benefit of acquittal.
2. The sad story gets into a new and different beginning. The accused
feels that he has been prosecuted due to the prosecutrix and gets obsessed
with idea of threatening the girl and that continues and eventually eve-
teasing becomes a matter of routine. Here, as the exposition of the
prosecution uncurtains, a situation is created by the accused which becomes
insufferable, where the young girl feels unassured and realizes that she
could no more live in peace. The feeling gets embedded and the helpless
situation compels her to think that the life is not worth living.
Resultantly, she pours kerosene on her body and puts herself ablaze but
death does not visit instantly and that is how she was taken to a nearby
hospital, where in due course of investigation, her dying declaration is
recorded, but she ultimately succumbs to her injuries and the “prana”
leaves the body and she becomes a “body” – a dead one.
3. The question that is required to be answered is whether the accused
can be convicted under Section 306 IPC. The case of the prosecution as
projected is that deceased was the daughter of the informant, PW-1, Sukh
Dev, and after acquittal in the case under Sections 363, 366 and 376 IPC,
the accused-appellant used to threaten the girl that he would kidnap her,
and had been constantly teasing her. It is the case of the prosecution
that on 18.07.2008 at 9.00 p.m., appellant came to the house of informant
and threatened him that he would forcibly take her. As the narration
further unfolds on 19.07.2008 about 10.00 a.m. when the informant alongwith
his wife was working outside in the field, the deceased poured kerosene
oil on her and set herself ablaze which was extinguished by the father, and
immediately Pradhan of Gram Panchayat was informed. The injured girl was
taken to the private hospital at Daulatpur where she was referred to
Chandigarh for further medical treatment but the informant could not take
her to Chandigarh due to paucity of money and in the evening Pradhan of the
village visited the house of the informant and the deceased gave one
written document to the Pradhan stating that the accused-appellant was
responsible for her condition whereafter police was informed and statement
of the informant was recorded and the victim was medically examined. On
24.07.2008, the dying declaration of the girl was recorded by the Head
Constable in the presence of Medical Officer and after the victim expired
the post-mortem was conducted and an FIR was registered. After the criminal
law was set in motion, the investigating agency after completing the
investigation laid the charge sheet before the competent court which, in
turn, committed the case to the Court of Session.
4. The accused abjured his guilt and pleaded false implication. The
prosecution in order to establish the charge examined 14 witnesses. The
defence shoes not to examine any witness. The learned Sessions Judge, after
hearing the arguments, posed the following question:
“Whether the prosecution has successfully proved the liability of accused
under Section 306 of IPC beyond the scope of all reasonable doubts?”;

and answered the question in the negative and consequently acquitted
the accused-appellant vide judgment and order dated 16th July, 2010.
5. Being aggrieved by the aforesaid judgment, the State preferred the
appeal before the High Court. The Division Bench of the High Court, after
reappreciating the evidence, reversed the judgment of acquittal rendered by
the trial court and convicted the accused-appellant under Section 306 IPC
and sentenced him to suffer rigorous imprisonment for seven years and to
pay fine of Rs. 10,000/- and in default of payment of fine, to further
undergo rigorous imprisonment for a period of one year.
6. We have heard Mr. Sanchar Anand, learned counsel for the appellant
and Mr. D.K. Thakur, learned Additional Advocate General for the respondent-
State.
7. It is submitted by Mr. Anand, learned counsel for the appellant that
the judgment rendered by the learned trial Judge is absolutely flawless
since he has analysed the evidence in great detail and appreciated them in
correct perspective. It is his further submission that the trial court
scrutinizing the medical evidence and the burn injuries sustained by the
victim has appositely discarded the dying declaration, Ex.PW-10/A. It is
further put forth that when cogent reasons have been ascribed by the trial
court for not placing reliance upon the dying declaration and the
testimony of the prosecution witnesses, the High Court, in such a fact
situation, should have been well advised not to interfere with the judgment
of acquittal. It is also canvassed by him that when the appreciation of
evidence by the trial court is not perverse and the view expressed by it is
a plausible one, the High Court should not have interfered with the
judgment of acquittal.
8. Mr. D.K. Thakur, learned Additional Advocate General appearing for
the respondent-State, in support of the impugned judgment, would contend
that the High Court has reappreciated the evidence and on such reappraisal
has found the conclusion pertaining to medical condition of the victim is
wholly incorrect and accordingly opined that the acquittal recorded by the
learned trial Judge is unsupportable and, therefore, this Court should give
the stamp of approval to the same.
9. First we shall deal with the nature of jurisdiction the High Court
exercises when it reverses a judgment of acquittal to that of conviction in
exercise of appellate jurisdiction. It is put forth by the learned
Additional Advocate General that the prosecution has been able to establish
the active role played by the accused by adducing cogent evidence and
hence, the reversal of the judgment of acquittal by the High Court is
absolutely flawless. In Jadunath Singh and others v. State of Uttar
Pradesh[1], a three-Judge Bench of this Court has opined:-
“22. This Court has consistently taken the view that in an appeal against
acquittal the High Court has full power to review at large all the evidence
and to reach the conclusion that upon that evidence the order of acquittal
should be reversed. This power of the appellate court in an appeal against
acquittal was formulated by the Judicial Committee of the Privy Council in
Sheo Swarup v. King Emperor[2] and Nur Mohammad v. Emperor[3]. These two
decisions have been consistently referred to in the judgments of this Court
as laying down the true scope of the power of an appellate court in hearing
criminal appeals (see Surajpal Singh v. State[4] and Sanwat Singh v. State
of Rajasthan[5]).”

10. In Shivaji Sahabrao Bobade v. State of Maharashtra[6], the Court has
ruled that there are no fetters on the plenary power of the appellate Court
to review the whole evidence on which the order of acquittal is founded
and, indeed, it has a duty to scrutinise the probative material de novo,
informed, however, by the weighty thought that the rebuttable innocence
attributed to the accused having been converted into an acquittal, the
homage the jurisprudence owes to individual liberty constrains the higher
court not to upset the finding without very convincing reasons and
comprehensive consideration.
11. In State of Karnataka v. K. Gopalakrishna[7], it has been held that
where the findings of the court below are fully unreasonable or perverse
and not based on the evidence on record or suffer from serious illegality
and include ignorance and misreading of record, the appellate court will be
justified in setting aside such an order of acquittal.
12. In Girja Prasad (dead) by LRs. v. State of M.P.[8], it has been
observed that in an appeal against acquittal the appellate court has every
power to reappreciate, review and reconsider the evidence as a whole before
it. The Court further stated that it is, no doubt, true that there is a
presumption of innocence in favour of the accused and that presumption is
reinforced by an order of acquittal recorded by the trial court, but that
is not the end of the matter, for it is for the appellate court to keep in
view the relevant principles of law, to reappreciate and reweigh the
evidence as a whole and to come to its own conclusion in accord with the
principles of criminal jurisprudence.
13. In State of Uttar Pradesh v. Ajai Kumar[9], the principles stated in
State of Rajasthan v. Sohan Lal[10] were reiterated. It is worth noting
that in Sohan Lal (supra), it has been stated thus:-
“3. … This Court has repeatedly laid down that as the first appellate court
the High Court, even while dealing with an appeal against acquittal, was
also entitled, and obliged as well, to scan through and if need be
reappreciate the entire evidence, though while choosing to interfere only
the court should find an absolute assurance of the guilt on the basis of
the evidence on record and not merely because the High Court could take one
more possible or a different view only. Except the above, where the matter
of the extent and depth of consideration of the appeal is concerned, no
distinctions or differences in approach are envisaged in dealing with an
appeal as such merely because one was against conviction or the other
against an acquittal.”

14. In Chandrappa and others v. State of Karnataka[11], this Court culled
out the general principles regarding powers of the appellate court while
dealing with an appeal against an order of acquittal. The said principles
are enumerated below:-
“(1) An appellate court has full power to review, reappreciate and
reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or
condition on exercise of such power and an appellate court on the evidence
before it may reach its own conclusion, both on questions of fact and of
law.
(3) Various expressions, such as, ‘substantial and compelling reasons’,
‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted
conclusions’, ‘glaring mistakes’, etc. are not intended to curtail
extensive powers of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of ‘flourishes of language’ to
emphasise the reluctance of an appellate court to interfere with acquittal
than to curtail the power of the court to review the evidence and to come
to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused. Firstly,
the presumption of innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall be presumed to
be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened by the trial
court.
(5) If two reasonable conclusions are possible on the basis of the evidence
on record, the appellate court should not disturb the finding of acquittal
recorded by the trial court.”

15. In Shivaji Sahabrao Bobade (supra), taking note of the contemporary
context, the Court held:-
“….The dangers of exaggerated devotion to the rule of benefit of doubt at
the expense of social defence and to the soothing sentiment that all
acquittals are always good regardless of justice to the victim and the
community, demand especial emphasis in the contemporary context of
escalating crime and escape. The judicial instrument has a public
accountability. The cherished principles or golden thread of proof beyond
reasonable doubt which runs through the web of our law should not be
stretched morbidly to embrace every hunch, hesitancy and degree of doubt.
The excessive solicitude reflected in the attitude that a thousand guilty
men may go but one innocent martyr shall not suffer is a false dilemma.
Only reasonable doubts belong to the accused. Otherwise any practical
system of justice will then break down and lose credibility with the
community. The evil of acquitting a guilty person light heartedly as a
learned Author[12] has sapiently observed, goes much beyond the simple fact
that just one guilty person has gone unpunished. If unmerited acquittals
become general, they tend to lead to a cynical disregard of the law, and
this in turn leads to a public demand for harsher legal presumptions
against indicted “persons” and more severe punishment of those who are
found guilty. Thus, too frequent acquittals of the guilty may lead to a
ferocious penal law, eventually eroding the judicial protection of the
guiltless. For all these reasons it is true to say, with Viscount Simon,
that “a miscarriage of justice may arise from the acquittal of the guilty
no less than from the conviction of the innocent .…” In short, our
jurisprudential enthusiasm for presumed innocence must be moderated by the
pragmatic need to make criminal justice potent and realistic.”
[emphasis supplied]

16. Keeping in view the principles laid down in the aforesaid
authorities, we shall scan the approach of the learned trial Judge and
scrutinize the correctness of deliberation of the High Court and adjudge he
ultimate reversal of the judgment of the trial court.
17. On a careful examination and close study of the judgment of the trial
court, it is perceivable that the learned trial Judge, after enumerating
the facts, has analysed the evidence and come to the conclusion that the
prosecution has failed to prove the culpability of the accused under
Section 306 IPC. He has disbelieved the evidence of PW-1, Sukh Dev, the
father of the deceased, on the principal ground that though after acquittal
of the accused in the criminal case instituted for offence under Sections
363/364/376 IPC, teased his daughter, yet he only made an oral complaint to
the Gram Panchayat and did not file a written complaint before it. That
apart, the learned trial Judge has noted that though PW-1 had stated in the
FIR that the accused had threatened to forcibly take away his daughter, he
had not so stated in his deposition. The dying declaration, that is, Ex.
PW-10/A, has not been given credence to on the ground that the victim was
not in a position to speak and had sustained 80% burn injuries and further
as her both hands were burnt, she could not have written what has been
alleged to have written by her in the said document. On that ground, the
learned trial Judge arrived at the conclusion that it would not be safe to
rely on the said dying declaration. Be it noted, Ex. PW-10/A was written
by the deceased on 24.07.2008. He has also disbelieved the testimony of the
material witnesses on the same ground.
18. As is evincible, the learned trial Judge has also not found Ex. PW-
10/A, which had been recorded on 24.07.2008 by the investigating officer,
PW-13, as reliable as the victim was under treatment and the medical
officer PW-10, Dr. Sanjay, who had deposed that he had appended his
endorsement in PW-10/B, but not issued any certificate that the victim was
mentally fit to give her statement. Leaned trial Judge has observed that
barring the aforesaid evidence, there is no other evidence on record to
connect the accused with the crime. It is worthy to note that he has
referred to the post- mortem report which recorded that the victim had
suffered burn injuries and finally arrived at the conclusion that there is
no specific evidence to record a conviction against the accused.
19. The High Court, as is noticeable, has taken note of the fact that PW-
1 has testified that the accused had earlier faced trial for the offences
under Sections 363, 366 and 376 IPC and remained in jail for eleven months
and, therefore, he threatened the victim that he would again kidnap her.
That apart, PW-1, Sukh Dev, father of the deceased, had also deposed that
the accused used to tease her daughter by gestures and his daughter used to
narrate these facts to him and his wife. He had also stated that that he
had made an oral complaint to the President of the Gram Panchayat, Bathra
who, in his turn, had admonished the accused and told him to mend his
ways. The High Court further took note of the fact that PW-1 has vividly
described the burn injuries sustained by his daughter and the reason for
the same.
20. PW-2, Jai Singh, as his evidence would show, which has also been
taken note of by the High Court, is the Pradhan of the village. He has
testified about the conduct of the accused and how he had asked him to
understand the situation. He has also deposed about the victim being taken
to the hospital and the nature of treatment administered to him. The High
Court has also dealt with the evidence of PW-3, Dr. Kulbhushan Sood, who
had issued MLC, Ex. PW-3/B and admitted that the victim had suffered 80%
burn injuries and opined that the same is sufficient to affect the mental
capability of the patient. The High Court has also analysed the evidence
of PW-9, Sawarna Devi, mother of the deceased, who has deposed about the
whole incident. PW-10, Dr. Sanjay, on whom the High Court has placed heavy
reliance, was posted as Senior Resident in the Department of Surgery in
RPGMC, Tanda. The police had orally requested him to accompany them as the
statement of the victim was to be recorded and 24.07.2008 and he went to
the ward where the victim was and the statement of the injured was recorded
by the police, Ex. PW-10/A, in his presence. The High Court has also
appreciated the fact that in the cross-examination, treating doctor had
admitted that he had not issued any certificate that the victim was
mentally fit to make a statement. It is pertinent to mention that the said
witness has denied the suggestion that the victim was not fit to make
statement and Ex. PW-10/A was not her statement.
21. After analyzing the evidence, the High Court has found that the trial
court has acquitted the accused on the ground that the deceased was not fit
to write Ex. PW-10/A and PW-10, Dr. Sanjay, had not issued the certificate
that the deceased was in a fit mental condition to give the statement on
24.07.2008. The High Court has observed that it had perused Ex. PW-10/A
wherefrom it was reflectible that the victim had written that the accused
would be responsible for her death. The analysis of the High Court is as
follows:-
“It is evident from the handwriting that Shalu was in tremendous pain and
agony when she was writing that accused would be responsible for her
death. This was written on 19.7.2008. It is also written in Ext. PW-2/A by
the Pradhan that Shalu had received burn injuries and she told him that
accused used to tease her. Thus she has taken this extreme step. It has
come in the statement ofPW-1 Sukh Dev and his wife (PW-9) Sawarna Devi that
the accused used to tease their daughter even after his acquittal in
criminal case. They had informed this fact to the Pradhan of Gram
Panchayat, PW-2 Jai Singh. Jai Singh (PW-2) has also admitted that
complaint was lodged with him and he has told the accused to mend his way.”

And again:-
“PW-13 SI Surjeet Singh has recorded the statement of deceased vide Ext. PW-
10/A on 24.7.2008. PW-10 Dr. Sanjay has deposed that the police had
recorded the statement of Shalu in his presence. He attested the same vide
endorsement Ext.PW-10/B. Police has written the same version in Ext. PW-
10/A, which was told by Sahlu. Statement Ext. PW-10/A would constitute a
dying declaration under Section 32 of the Evidence Act. Merely that the
Doctor has not issued certificate that Shalu was fit to make statement
would not in any way affect the dying declaration made by deceased on
24.07.2008, that too in the presence of PW-10 dr. Sanjay. It is duly proved
by the prosecution that the accused alone was responsible for abetting
suicide committed by the deceased. She received 80-85% superficial ante-
mortem burns. She might have received 80-85% burns but still she had
sufficient strength to write Ext. PW-2/A.”

The High Court has relied on the decision in Gulzari Lal v. State of
Haryana[13], and come to hold that a valid dying declaration may be made
without obtaining a certificate fitness of the declarant by medical
officer.
22. It is demonstrable that the trial court has acquitted the accused by
disregarding the version of parents of the deceased and other witnesses and
treating the dying declaration as invalid and the High Court, on the
contrary, has placed reliance on the testimony of the parents of the
deceased, and the evidence of the village Pradhan and also given credence
to the dying declaration.
23. As is seen, the non-reliance on the dying declaration by the learned
trial Judge is founded on the reason that the deceased was not in a
position to speak and there was no medical certificate appended as regards
her fitness. That apart, the learned trial Judge has regarded the dying
declaration as unacceptable and unreliable on the base that the deceased
had sustained 80% burn injuries. The High Court has found the said
approach to be absolutely erroneous.
24. The hub of the matter is whether the dying declaration Ex. Pw-10/A
is to be treated as realiable or not. To appreciate the validity of the
dying declaration, we have requisitioned the original record and had
perused the same. On a careful scrutiny of the same, we find that the Head
Constable had written what the deceased had spoken and thereafter the
deceased had written that the accused alone was responsible for her death.
The dying declaration, as has been recorded by the Head Constable,
eloquently states about the constant teasing of the victim by the accused.
PW-10, Dr. Sanjay, has stood firm in his testimony that the victim was in a
fit condition to speak. Despite the roving cross-examination he has not
paved the path of tergiversation. The trial court, as mentioned earlier,
has disregarded the testimony of PW-10 on the ground that there is no
certificate of fitness. In this context, reference to the Constitution
Bench decision in Laxman v. State of Maharashtra[14] would be absolutely
seemly. In the said case, the larger Bench, while stating the law
relating to the dying declaration, has succinctly held:-
“3. … A dying declaration can be oral or in writing and any adequate method
of communication whether by words or by signs or otherwise will suffice
provided the indication is positive and definite. In most cases, however,
such statements are made orally before death ensues and is reduced to
writing by someone like a Magistrate or a doctor or a police officer. When
it is recorded, no oath is necessary nor is the presence of a Magistrate
absolutely necessary, although to assure authenticity it is usual to call a
Magistrate, if available for recording the statement of a man about to die.
There is no requirement of law that a dying declaration must necessarily be
made to a Magistrate and when such statement is recorded by a Magistrate
there is no specified statutory form for such recording. Consequently, what
evidential value or weight has to be attached to such statement necessarily
depends on the facts and circumstances of each particular case. What is
essentially required is that the person who records a dying declaration
must be satisfied that the deceased was in a fit state of mind. Where it is
proved by the testimony of the Magistrate that the declarant was fit to
make the statement even without examination by the doctor the declaration
can be acted upon provided the court ultimately holds the same to be
voluntary and truthful. A certification by the doctor is essentially a rule
of caution and therefore the voluntary and truthful nature of the
declaration can be established otherwise.”

25. In Atbir v. Government of NCT of Delhi[15], the Court, after noting
earlier judgments, has laid the following guidelines with regard to
admissibility of the dying declaration:-
“22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction if it inspires
the full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of
mind at the time of making the statement and that it was not the result of
tutoring, prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and
voluntary, it can base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of conviction unless it is
corroborated. The rule requiring corroboration is merely a rule of
prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon
without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased
was unconscious and could never make any statement cannot form the basis of
conviction.
(vii) Merely because a dying declaration does not contain all the details
as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and
conscious state to make the dying declaration, medical opinion cannot
prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and
free from any effort to induce the deceased to make a false statement and
if it is coherent and consistent, there shall be no legal impediment to
make it the basis of conviction, even if there is no corroboration.”

26. Recently, in Gulzari Lal (supra), the Court confirmed the conviction
by placing reliance on the statement made by the deceased and recorded by
the Head Constable on the basis of the principles stated in Laxman (supra).
The analysis in the said case is as follows:-
“23. In reference to the position of law laid down by this Court, we find
no reason to question the reliability of the dying declaration of the
deceased for the reason that at the time of recording his statement by the
Head Constable Manphool Singh (PW 7), he was found to be mentally fit to
give his statement regarding the occurrence. Further, evidence of Head
Constable Manphhol Singh (PW 7) was shown to be trustworthy and has been
accepted by the courts below. The view taken by the High Court does not
suffer from any infirmity and the same is in order.

24. The conviction by the High Court was based not only on the statements
made by Maha Singh (deceased) but also on the unshattered testimony of the
eyewitness Dariya Singh (PW 1) and the statement of the independent witness
Rajinder Singh (PW 11).”

27. Tested on the anvil of the aforesaid authorities, we find that there
is no reason to disregard the dying declaration. The Head Constable has
recorded it as narrated by the deceased and the deceased has also written
few words about the accused. The same has been recorded in presence of the
doctor, PW-10, who had appended his signature. A certificate of fitness is
not the requirement of law. The trial court has been swayed away by the
burn injuries. It is worthy to note that there cannot be an absolute rule
that a person who has suffered 80% burn injuries cannot give a dying
declaration. In Vijay Pal v. State (Government of NCT of Delhi)[16], the
Court repelled the submission with regard to dying declaration made by the
deceased who had sustained 100% burn injuries stating that:-

“22. Thus, the law is quite clear that if the dying declaration is
absolutely credible and nothing is brought on record that the deceased was
in such a condition, he or she could not have made a dying declaration to a
witness, there is no justification to discard the same. In the instant
case, PW 1 had immediately rushed to the house of the deceased and she had
told him that her husband had poured kerosene on her. The plea taken by the
appellant that he has been falsely implicated because his money was
deposited with the in-laws and they were not inclined to return, does not
also really breathe the truth, for there is even no suggestion to that
effect.

23. It is contended by the learned counsel for the appellant that when the
deceased sustained 100% burn injuries, she could not have made any
statement to her brother. In this regard, we may profitably refer to the
decision in Mafabhai Nagarbhai Raval v. State of Gujarat[17] wherein it has
been held that a person suffering 99% burn injuries could be deemed capable
enough for the purpose of making a dying declaration. The Court in the said
case opined that unless there existed some inherent and apparent defect,
the trial court should not have substituted its opinion for that of the
doctor. In the light of the facts of the case, the dying declaration was
found to be worthy of reliance.”

28. Quite apart from the above, her dying declaration has received
support from the other witnesses. In view of the corroborative evidence, we
are of the considered opinion that the High Court has correctly relied upon
this aspect and has reversed the finding of the trial court.
29. As far as reliability of evidence of PW-1 and PW-9, the parents of
the victim are concerned, the reasons for not treating their version as
reliable is based on the fact that they had not reported the incident in
writing to the Gram Panchayat. On a perusal of the evidence in entirety, we
find that the High Court has appropriately dislodged the analysis made by
the trial court. The evidence has to be appreciated regard being had to
various circumstances. It is to be noted that the accused has been
acquitted in the earlier offence and he has become a constant nuisance for
the victim. In such a situation, the poor parents had no other option but
to make a complaint to the Gram Panchayat. To hold that their evidence is
reproachable as the complaint was not given in writing manifestation of
perverse approach. On a perusal of the evidence in entirety, we find that
the testimonies of the parents are absolutely unimpeachable and deserve
credence.
30. The next aspect which is required to be addressed is whether Section
306 IPC gets attracted. Submission of the learned counsel for the
appellant is that even assuming the allegation is accepted to have been
proved, it would not come within the ambit and scope of Section 306 IPC as
there is no abetment.
31. Section 306 IPC reads as under:-
“Section 306. Abetment of suicide.—If any person commits suicide, whoever
abets the commission of such suicide, shall be punished with imprisonment
of either description for a term which may extend to ten years, and shall
also be liable to fine.”

32. The word ‘abetment’ has not been explained in Section 306 IPC. In
this context, the definition of abetment as provided under Section 107 IPC
is pertinent. Section 306 IPC seeks to punish those who abet the
commission of suicide of other. Whether the person has abetted the
commission of suicide of another or not is to be gathered from facts and
circumstances of each case and to be found out by continuous conduct of the
accused, involving his mental element. Such a requirement can be perceived
from the reading of Section 107 IPC. Section 107 IPC reads as under:-
“Section 107. Abetment of a thing.—A person abets the doing of a thing,
who—
First. — Instigates any person to do that thing; or
Secondly. —Engages with one or more other person or persons in any
conspiracy for the doing of that thing, if an act or illegal omission takes
place in pursuance of that conspiracy, and in order to the doing of that
thing; or
Thirdly. — Intentionally aids, by any act or illegal omission, the doing of
that thing.

Explanation 1.—A person who, by wilful misrepresentation, or by wilful
concealment of a material fact which he is bound to disclose, voluntarily
causes or procures, or attempts to cause or procure, a thing to be done, is
said to instigate the doing of that thing.

Illustration— A, a public officer, is authorized by a warrant from a Court
of Justice to apprehend Z. B, knowing that fact and also that C is not Z,
wilfully represents to A that C is Z, and thereby intentionally causes A to
apprehend C. Here B abets by instigation the apprehension of C.

Explanation 2.—Whoever, either prior to or at the time of the commission of
an act, does anything in order to facilitate the commission of that act,
and thereby facilitate the commission thereof, is said to aid the doing of
that act.”

“Abetment”, thus, means certain amount of active suggestion or
support to do the act.
33. Analysing the concept of “abetment” as found in Section 107 IPC, a
two-Judge Bench in Chitresh Kumar Chopra v. State (Government of NCT of
Delhi)[18] has held:-
“13. As per the section, a person can be said to have abetted in doing a
thing, if he, firstly, instigates any person to do that thing; or secondly,
engages with one or more other person or persons in any conspiracy for the
doing of that thing, if an act or illegal omission takes place in pursuance
of that conspiracy, and in order to the doing of that thing; or thirdly,
intentionally aids, by any act or illegal omission, the doing of that
thing. Explanation to Section 107 states that any wilful misrepresentation
or wilful concealment of material fact which he is bound to disclose, may
also come within the contours of “abetment”. It is manifest that under all
the three situations, direct involvement of the person or persons concerned
in the commission of offence of suicide is essential to bring home the
offence under Section 306 IPC.

x x x x x

15. As per clause Firstly in the said section, a person can be said to have
abetted in doing of a thing, who “instigates” any person to do that thing.
The word “instigate” is not defined in IPC. The meaning of the said word
was considered by this Court in Ramesh Kumar v. State of Chhattisgarh[19].”

In the said authority, the learned Judges have referred to the
pronouncement in Ramesh Kumar v. State of Chhattisgarh.
34. The word “instigate” literally means to goad, urge forward, provoke,
incite or encourage to do an act. A person is said to instigate another
person when he actively suggests or stimulates him to an act by any means
or language, direct or indirect, whether it takes the form of express
solicitation or of hints, insinuation or encouragement. Instigation may be
in (express) words or may be by (implied) conduct.
35. The word “urge forwards” means to advise or try hard to persuade
somebody to do something, to make a person to move more quickly in the
particular direction, specially by pushing or forcing such person.
Therefore, a person instigating another has to “goad” or “urge forward” the
latter with the intention to provoke, incite or encourage the doing of an
act with a latter. In order to prove abetment, it must be shown that the
accused kept on urging or annoying the deceased by words, taunts until the
deceased reacted. A casual remark or something said in routine or usual
conversation should not be construed or misunderstood as “abetment”.
36. Analysing further, in Randhir Singh and another v. State of
Punjab[20], the Court has observed thus:-
“12. Abetment involves a mental process of instigating a person or
intentionally aiding that person in doing of a thing. In cases of
conspiracy also it would involve that mental process of entering into
conspiracy for the doing of that thing. More active role which can be
described as instigating or aiding the doing of a thing is required before
a person can be said to be abetting the commission of offence under Section
306 IPC.”
[emphasis supplied]

37. In Praveen Pradhan v. State of Uttaranchal & another[21], it has been
ruled:-
“18. In fact, from the above discussion it is apparent that instigation has
to be gathered from the circumstances of a particular case. No straitjacket
formula can be laid down to find out as to whether in a particular case
there has been instigation which forced the person to commit suicide. In a
particular case, there may not be direct evidence in regard to instigation
which may have direct nexus to suicide. Therefore, in such a case, an
inference has to be drawn from the circumstances and it is to be determined
whether circumstances had been such which in fact had created the situation
that a person felt totally frustrated and committed suicide. …”
[emphasis is ours]

38. In Amalendu Pal alias Jhantu v. State of West Bengal[22], the Court,
after referring to the authorities in Randhir Singh (supra), Kishori Lal v.
State of M.P.[23] and Kishangiri Mangalgiri Goswami v. State of
Gujarat[24], has held:-
“12. Thus, this Court has consistently taken the view that before holding
an accused guilty of an offence under Section 306 IPC, the court must
scrupulously examine the facts and circumstances of the case and also
assess the evidence adduced before it in order to find out whether the
cruelty and harassment meted out to the victim had left the victim with no
other alternative but to put an end to her life. It is also to be borne in
mind that in cases of alleged abetment of suicide there must be proof of
direct or indirect acts of incitement to the commission of suicide. Merely
on the allegation of harassment without there being any positive action
proximate to the time of occurrence on the part of the accused which led or
compelled the person to commit suicide, conviction in terms of Section 306
IPC is not sustainable.”

39. A two-Judge Bench in Netai Dutta v. State of W.B.[25], while dwelling
the concept of abetment under Section 107 IPC especially in the context of
suicide note, observed:-
“6. In the suicide note, except referring to the name of the appellant at
two places, there is no reference of any act or incidence whereby the
appellant herein is alleged to have committed any wilful act or omission or
intentionally aided or instigated the deceased Pranab Kumar Nag in
committing the act of suicide. There is no case that the appellant has
played any part or any role in any conspiracy, which ultimately instigated
or resulted in the commission of suicide by deceased Pranab Kumar Nag.

7. Apart from the suicide note, there is no allegation made by the
complainant that the appellant herein in any way was harassing his brother,
Pranab Kumar Nag. The case registered against the appellant is without any
factual foundation. The contents of the alleged suicide note do not in any
way make out the offence against the appellant. The prosecution initiated
against the appellant would only result in sheer harassment to the
appellant without any fruitful result. In our opinion, the learned Single
Judge seriously erred in holding that the first information report against
the appellant disclosed the elements of a cognizable offence. There was
absolutely no ground to proceed against the appellant herein. We find that
this is a fit case where the extraordinary power under Section 482 of the
Code of Criminal Procedure is to be invoked. We quash the criminal
proceedings initiated against the appellant and accordingly allow the
appeal.”

40. At this juncture, we think it appropriate to reproduce two paragraphs
from Chitresh Kumar Chopra (supra). They are:-
“16. Speaking for the three-Judge Bench in Ramesh Kumar case (supra), R.C.
Lahoti, J. (as His Lordship then was) said that instigation is to goad,
urge forward, provoke, incite or encourage to do “an act”. To satisfy the
requirement of “instigation”, though it is not necessary that actual words
must be used to that effect or what constitutes “instigation” must
necessarily and specifically be suggestive of the consequence. Yet a
reasonable certainty to incite the consequence must be capable of being
spelt out. Where the accused had, by his acts or omission or by a continued
course of conduct, created such circumstances that the deceased was left
with no other option except to commit suicide, in which case, an
“instigation” may have to be inferred. A word uttered in a fit of anger or
emotion without intending the consequences to actually follow, cannot be
said to be instigation.

x x x x x

19. As observed in Ramesh Kumar (supra), where the accused by his acts or
by a continued course of conduct creates such circumstances that the
deceased was left with no other option except to commit suicide, an
“instigation” may be inferred. In other words, in order to prove that the
accused abetted commission of suicide by a person, it has to be established
that:
(i) the accused kept on irritating or annoying the deceased by words, deeds
or wilful omission or conduct which may even be a wilful silence until the
deceased reacted or pushed or forced the deceased by his deeds, words or
wilful omission or conduct to make the deceased move forward more quickly
in a forward direction; and
(ii) that the accused had the intention to provoke, urge or encourage the
deceased to commit suicide while acting in the manner noted above.
Undoubtedly, presence of mens rea is the necessary concomitant of
instigation.”

This Court again observed:-
“20. … The question as to what is the cause of a suicide has no easy
answers because suicidal ideation and behaviours in human beings are
complex and multifaceted. Different individuals in the same situation react
and behave differently because of the personal meaning they add to each
event, thus accounting for individual vulnerability to suicide. Each
individual’s suicidability pattern depends on his inner subjective
experience of mental pain, fear and loss of self-respect. Each of these
factors are crucial and exacerbating contributor to an individual’s
vulnerability to end his own life, which may either be an attempt for self-
protection or an escapism from intolerable self.”

41. Keeping in view the aforesaid legal position, we are required to
address whether there has been abetment in committing suicide. Be it
clearly stated that mere allegation of harassment without any positive
action in proximity to the time of occurrence on the part of the accused
that led a person to commit suicide, a conviction in terms of Section 307
IPC is not sustainable. A casual remark that is likely to cause harassment
in ordinary course of things will not come within the purview of
instigation. A mere reprimand or a word in a fit of anger will not earn
the status of abetment. There has to be positive action that creates a
situation for the victim to put an end to life.
42. In the instant case, the accused had by his acts and by his
continuous course of conduct created such a situation as a consequence of
which the deceased was left with no other option except to commit suicide.
The active acts of the accused have led the deceased to put an end to her
life. That apart, we do not find any material on record which compels the
Court to conclude that the victim committing suicide was hypersensitive to
ordinary petulance, discord and difference in domestic life quite common to
the society to which the victim belonged. On the other hand, the accused
has played active role in tarnishing the self-esteem and self-respect of
the victim which drove the victim girl to commit suicide. The cruelty
meted out to her has, in fact, induced her to extinguish her life-spark.
43. As is demonstrable, the High Court has not reversed the judgment of
acquittal solely on the basis of dying declaration. It has placed reliance
on the evidence of the parents and also other witnesses. It has also
treated the version of the Pradhan of the Gram Panchayat as credible. All
these witnesses have deposed that the accused after his acquittal engaged
himself in threatening and teasing the girl. He did not allow her to live
in peace.
44. The harassment caused to her had become intolerable and unbearable.
The father had deposed that the girl had told him on number of occasions
and he had complained to the Pradhan. All these amount to active part
played by the accused. It is not a situation where a person is insulted on
being asked to pay back a loan. It is not a situation where someone feels
humiliated on a singular act. It is a different situation altogether. The
young girl living in a village was threatened and teased constantly. She
could not bear it any longer. There is evidence that the parents belong to
the poor strata of the society. As the materials on record would reflect,
the father could not afford her treatment when case of his daughter was
referred to the hospital at Chandigarh. The impecuniosity of the family is
manifest. It is clearly evident from the materials brought on record that
the conduct of the accused was absolutely proactive.
45. Eve-teasing, as has been stated in Deputy Inspector General of Police
and another v. S. Samuthiram[26], has become a pernicious, horrid and
disgusting practice. The Court therein has referred to the Indian Journal
of Criminology and Criminalistics (January-June 1995 Edn.) which has
categorized eve-teasing into five heads, viz. (1) verbal eve-teasing; (2)
physical eve-teasing; (3) psychological harassment; (4) sexual harassment;
and (5) harassment through some objects. The present case eminently
projects a case of psychological harassment. We are at pains to state that
in a civilized society eve-teasing is causing harassment to women in
educational institutions, public places, parks, railways stations and other
public places which only go to show that requisite sense of respect for
women has not been socially cultivated. A woman has her own space as a man
has. She enjoys as much equality under Article 14 of the Constitution as a
man does. The right to live with dignity as guaranteed under Article 21 of
the Constitution cannot be violated by indulging in obnoxious act of eve-
teasing. It affects the fundamental concept of gender sensitivity and
justice and the rights of a woman under Article 14 of the Constitution.
That apart it creates an incurable dent in the right of a woman which she
has under Article 15 of the Constitution. One is compelled to think and
constrained to deliberate why the women in this country cannot be allowed
to live in peace and lead a life that is empowered with a dignity and
freedom. It has to be kept in mind that she has a right to life and
entitled to love according to her choice. She has an individual choice
which has been legally recognized. It has to be socially respected. No one
can compel a woman to love. She has the absolute right to reject.
46. In a civilized society male chauvinism has no room. The Constitution
of India confers the affirmative rights on women and the said rights are
perceptible from Article 15 of the Constitution. When the right is
conferred under the Constitution, it has to be understood that there is no
condescendation. A man should not put his ego or, for that matter,
masculinity on a pedestal and abandon the concept of civility. Egoism must
succumb to law. Equality has to be regarded as the summum bonum of the
constitutional principle in this context. The instant case portrays the
deplorable depravity of the appellant that has led to a heart breaking
situation for a young girl who has been compelled to put an end to her
life. Therefore, the High Court has absolutely correctly reversed the
judgment of acquittal and imposed the sentence. It has appositely exercised
the jurisdiction and we concur with the same.
47. Consequently, the appeal, being devoid of any merit, stands
dismissed.

............................................J.
[Dipak Misra]

…………...............................J.
[A.M. Khanwilkar]

………...................................J.
[Mohan M. Shantanagoudar]

New Delhi
April 28, 2017.
-----------------------
[1] (1971) 3 SCC 577
[2] AIR 1934 PC 227
[3] AIR 1945 PC 151
[4] AIR 1952 SC 52
[5] AIR 1961 SC 715
[6] (1973) 2 SCC 793
[7] (2005) 9 SCC 291
[8] (2007) 7 SCC 625
[9] (2008) 3 SCC 351
[10] (2004) 5 SCC 573
[11] (2007) 4 SCC 415
[12] Glanville Williams in ‘Proof of Guilt’.
[13] (2016) 4 SCC 583
[14] (2002) 6 SCC 710
[15] (2010) 9 SCC 1
[16] (2015) 4 SCC 749
[17] (1992) 4 SCC 69
[18] (2009) 16 SCC 605
[19] (2001) 9 SCC 618
[20] (2004) 13 SCC 129
[21] (2012) 9 SCC 734
[22] (2010) 1 SCC 707
[23] (2007) 10 SCC 797
[24] (2009) 4 SCC 52
[25] (2005) 2 SCC 659
[26] (2013) 1 SCC 598

-----------------------
32

whether the High Court had the jurisdiction to decide the second appeal when the appellant and 2 respondents had expired during the pendency of appeal and their legal representatives were not brought on record?whether the impugned judgment/order is a nullity because it was passed by the High Court in favour of and also against the dead persons. In our considered opinion, it is a nullity. =Such objection, in our opinion, could be raised in appeal or even in execution proceedings arising out of such decree. In our view, the objection, therefore, deserves to be upheld. It is, accordingly, upheld.

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 5671 OF 2017
(ARISING OUT OF SLP (C) No.26798/2011)

Gurnam Singh(D) Thr. Lrs. & Ors. ...Appellant(s)

VERSUS

Gurbachan Kaur(D) By Lrs.
& Ors. …Respondent(s)

J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed by the legal representatives of defendant Nos. 2
and 4 against the final judgment and order dated 18.05.2012 passed by the
High Court of Punjab and Haryana at Chandigarh in Civil Regular Second
Appeal No. 1148 of 1985 whereby the High Court allowed the plaintiff’s
appeal, set aside the concurrent findings of the Trial Court and the First
Appellate Court and decreed the plaintiff’s suit for specific performance
of contract against the defendants in relation to the suit land.
3) The facts of the case lie in a narrow compass so also the controversy
involved in the appeal is short. However, only relevant facts to appreciate
the question involved are mentioned infra.
4) One Surjan Singh(defendant No.1) was the original owner of the suit
land bearing Khasra Nos. 1806, 1807, 1808 and 1809 (new numbers 91R/2/3,
12, 9, 10, 11, 90R/6 and 15) measuring 43 Kanals 4 Marlas situated in
village Rasulpur, Tahsil/District Amritsar (hereinafter referred to as "the
suit land”).
5) On 06.05.1974, Surjan Singh entered into a contract to sell the suit
land to one Gurbachan Kaur(plaintiff) for Rs.10,000/- per Killa. In terms
of the contract, the sale deed of the suit land was to be executed by
Surjan Singh in favour of Gurbachan Kaur on or before 28.01.1975.
6) On 03.09.1974, Surjan Singh sold the suit land to Joginder Singh,
Mehal Singh and Gurnam Singh. This led to filing of the civil suit by
Gurbachan Kaur against Surjan Singh(defendant No.1) and subsequent
purchasers, namely, Joginder Singh(defendant No.2), Mehal Singh(defendant
No.3) and Gurnam Singh(defendant No.4). The suit was for specific
performance of contract dated 06.05.1974 filed by Gurbachan Kaur against
the aforementioned 4 defendants in relation to the suit land. The
defendants contested the suit. Parties went on trial.
7) By judgment/decree dated 29.08.1980, the Trial Court dismissed the
suit insofar as it pertained to grant of relief of specific performance of
contract was concerned but decreed the suit by granting money decree for
Rs.7000/- in plaintiff's favour. In this way, the suit was partly decreed
and partly dismissed.
8) Felt aggrieved, the plaintiff-Gurbachan Kaur alone filed the first
appeal in the Court of District Judge. So far as the defendants are
concerned, they did not file any appeal against the money decree suffered
by them. By judgment/decree dated 06.11.1984, the first Appellate Court
dismissed the appeal filed by the plaintiff and affirmed the
judgment/decree of the Trial Court.
9) Felt aggrieved, the plaintiff- Gurbachan Kaur carried the matter
further and filed Second Appeal before the High Court. The appeal was
admitted for final hearing on substantial questions of law framed by the
High Court.
10) During pendency of the second appeal, Gurbachan Kaur-
appellant(plaintiff) died on 10.05.1994. Likewise, Joginder Singh
(respondent- defendant No.2) died on 06.12.2000 and lastly Gurnam
Singh(respondent-defendant No.4) also died on 19.04.2002. Despite bringing
to the notice of the High Court about the death of the appellant and the
two respondents, no steps were taken by anyone to bring their legal
representatives on record to enable them to prosecute the lis involved in
the appeal.
11) On 18.05.2010, the High Court allowed the second appeal, set aside
the judgment/decree of the two Courts below and decreed the plaintiff's
suit for specific performance of the contract against the defendants in
relation to the suit land.
12) It is against this judgment of the High Court, the legal
representatives of defendant No.2(Late Joginder Singh) and defendant
No.4(Late Gurnam Singh) filed the present appeal by way of special leave
petition and sought permission to question its legality and correctness.
13) Heard Mr. Basava Prabhu S. Patil, learned senior counsel for the
appellants and Mr. Subhasish Bhowmick, learned counsel for the respondents.

14) The short question, which arises for consideration in this appeal, is
whether the impugned order allowing the plaintiff’s second appeal is
legally sustainable in law? In other words, the question is whether the
High Court had the jurisdiction to decide the second appeal when the
appellant and 2 respondents had expired during the pendency of appeal and
their legal representatives were not brought on record?
15) In a leading case of this Court in Kiran Singh & Others vs. Chaman
Paswan & Others (AIR 1954 SC 340), the learned Judge Venkatarama Ayyar
speaking for the Bench in his distinctive style of writing laid down the
following principle of law being fundamental in nature:
“It is a fundamental principle that a decree passed by a Court
without jurisdiction is a nullity, and that its invalidity could be set up
whenever and wherever it is sought to be enforced or relied upon, even at
the stage of execution and even in collateral proceedings. A defect of
jurisdiction, whether it is pecuniary or territorial, or whether it is in
respect of the subject-matter of the action, strikes at the very authority
of the Court to pass any decree, and such a defect cannot be cured even by
consent of parties.”

16) The question, therefore, is whether the impugned judgment/order is a
nullity because it was passed by the High Court in favour of and also
against the dead persons. In our considered opinion, it is a nullity. The
reasons are not far to seek.
17) It is not in dispute that the appellant and the two respondents
expired during the pendency of the second appeal. It is also not in
dispute that no steps were taken by any of the legal representatives
representing the dead persons and on whom the right to sue had devolved to
file an application under Order 22 Rules 3 and 4 of the Code of Civil
Procedure,1908 (for short, ‘the Code’) for bringing their names on record
in place of the dead persons to enable them to continue the lis.
18) The law on the point is well settled. On the death of a party to the
appeal, if no application is made by the party concerned to the appeal or
by the legal representatives of the deceased on whom the right to sue has
devolved for substitution of their names in place of the deceased party
within 90 days from the date of death of the party, such appeal abates
automatically on expiry of 90 days from the date of death of the party. In
other words, on 91st day, there is no appeal pending before the Court. It
is “dismissed as abated”.
19) Order 22 Rule 3(2) which applies in the case of the death of
plaintiff/appellant and Order 22 Rule 4(3) which applies in the case of
defendant/respondent provides the consequences for not filing the
application for substitution of legal representatives by the parties
concerned within the time prescribed. These provisions read as under:-
Order 22 Rule 3(2)
“Where within the time limited by law no application is made under
sub-rule (1) the suit shall abate so far as the deceased plaintiff is
concerned, and, on the application of the defendant, the Court may award to
him the costs which he may have incurred in defending the suit, to be
recovered from the estate of the deceased plaintiff.”

Order 22 Rule 4(3)

“Where within the time limited by law no application is made under
sub-rule (1), the suit shall abate as against the deceased defendant.”

20) In the case at hand, both the aforementioned provisions came in
operation because the appellant and the two respondents expired during the
pendency of second appeal and no application was filed to bring their legal
representatives on record. As held above, the legal effect of the non-
compliance of Rules 3(2) and 4(3) of Order 22, therefore, came into
operation resulting in dismissal of second appeal as abated on the expiry
of 90 days from 10.05.1994, i.e., on 10.08.1994. The High Court, therefore,
ceased to have jurisdiction to decide the second appeal which stood already
dismissed on 10.08.1994. Indeed, there was no pending appeal on and after
10.08.1994.
21) In our considered view, the appeal could be revived for hearing only
when firstly, the proposed legal representatives of the deceased persons
had filed an application for substitution of their names and secondly, they
had applied for setting aside of the abatement under Order 22 Rule 9 of the
Code and making out therein a sufficient cause for setting aside of an
abatement and lastly, had filed an application under Section 5 of the
Limitation Act seeking condonation of delay in filing the substitution
application under Order 22 Rules 3 and 4 of the Code beyond the statutory
period of 90 days. If these applications had been allowed by the High
Court, the second appeal could have been revived for final hearing but not
otherwise. Such was not the case here because no such applications had been
filed.
22) It is a fundamental principle of law laid down by this Court in Kiran
Singh’s case (supra) that a decree passed by the Court, if it is a nullity,
its validity can be questioned in any proceeding including in execution
proceedings or even in collateral proceedings whenever such decree is
sought to be enforced by the decree holder. The reason is that the defect
of this nature affects the very authority of the Court in passing such
decree and goes to the root of the case. This principle, in our considered
opinion, squarely applies to this case because it is a settled principle of
law that the decree passed by a Court for or against a dead person is a
“nullity” (See-N. Jayaram Reddy & Anr. Vs. Revenue Divisional Officer &
Land Acquisition Officer, Kurnool, (1979) 3 SCC 578, Ashok Transport Agency
vs. Awadhesh Kumar & Anr., (1998) 5 SCC 567 and Amba Bai & Ors. Vs. Gopal &
Ors., (2001) 5 SCC 570).
23) The appellants are the legal representatives of defendant Nos. 2 and
4 on whom the right to sue has devolved. They had, therefore, right to
question the legality of the impugned order inter alia on the ground of it
being a nullity. Such objection, in our opinion, could be raised in appeal
or even in execution proceedings arising out of such decree. In our view,
the objection, therefore, deserves to be upheld. It is, accordingly,
upheld.
24) In the light of foregoing discussion, we allow the appeal and set
aside the impugned judgment/decree.
………...................................J.
[R.K. AGRAWAL]

…...……..................................J.
[ABHAY MANOHAR SAPRE] New Delhi;
April 27, 2017
-----------------------
12

Sec.319 to summon any person as an accused and face the trial in the ongoing case when to be exercised - Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised. It is not to be exercised in a casual or a cavalier manner. The prima facie opinion which is to be formed requires stronger evidence than mere probability of his complicity. = the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. = the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under Section 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct. Notwithstanding the same, the trial court went by the deposition of complainant and some other persons in their examination-in-chief, with no other material to support their so- called verbal/ocular version. Thus, the ‘evidence’ recorded during trial was nothing more than the statements which was already there under Section 161 Cr.P.C. recorded at the time of investigation of the case. No doubt, the trial court would be competent to exercise its power even on the basis of such statements recorded before it in examination-in-chief. However, in a case like the present where plethora of evidence was collected by the IO during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether ‘much stronger evidence than mere possibility of their (i.e. appellants) complicity has come on record. There is no satisfaction of this nature. Even if we presume that the trial court was not apprised of the same at the time when it passed the order (as the appellants were not on the scene at that time), what is more troubling is that even when this material on record was specifically brought to the notice of the High Court in the Revision Petition filed by the appellants, the High Court too blissfully ignored the said material. Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done. Such orders cannot stand judicial scrutiny. As a consequence, this appeal is allowed setting aside the order of summoning the appellants under Section 319 Cr.P.C.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 763 OF 2017

|BRIJENDRA SINGH & ORS. |.....APPELLANT(S) |
|VERSUS | |
|STATE OF RAJASTHAN |.....RESPONDENT(S) |

J U D G M E N T

A.K. SIKRI, J.
The appellants herein, three in number, have been summoned by
the Court of Special Judge, SC/ST Act, which is in seisin of the trial in
respect of FIR No. 53 of 2000, wherein charges for offences under Sections
147, 148, 149, 323, 448, 302/149 of Indian Penal Code (IPC) as well as
under Sections 3 and 3(2)(V) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act) have been framed.
The appellants were not arraigned as accused in the chargesheet. The
charges were framed against those who were accused in the chargesheet and
prosecution evidence is being recorded. The appellants are summoned as
additional accused persons under Section 319 of Code of Criminal Procedure,
1973 (Cr.P.C.) to face the trial along with other accused persons. The
trial court has passed the Order dated 06.10.2015 on an application filed
by the complainant Harkesh Meena under Section 319 of Cr.P.C. This order
was challenged by the appellants before the High Court. However, the High
Court has dismissed the revision petition preferred by the appellants on
11.01.2016.

Factual details pertaining to the FIR and registration of case against
other persons as well as filing of the application by the complainant under
Section 319 of Cr.P.C. and the orders therein are as under:
On the basis of a written complaint, FIR No. 53 of 2000 was
registered at 10:30 pm on 29.04.2000 under Sections 147, 148, 149, 323,
448, 302/149 IPC as well as under Sections 3 and 3(2)(V) of SC/ST Act. In
this complaint, the complainant had stated that at about 3:00 pm on
29.04.2000 when he was at his Khejra well, making his cattle drink water,
certain persons including appellants who belong to his village came there
armed with axe, lathi sabbal (iron rod) and knives in their hands, with
intention to kill the complainant. On seeing them, the complainant ran
from that place and came to his uncle’s (Nathu) house and cried loudly.
His uncle was sleeping in front of the house and Lakhpat was sleeping under
Neem tree. As soon as he came into the thatch, Pratap Singh inflicted
lathi blow on him from behind which hit on his back. The complainant ran
into the house of Bharatlal. Brijendra Singh inflicted sabbal at the head
of his uncle Nathu who was sleeping at that time and Pratap hit his uncle
with axe above the ear. Thereafter, all these accused persons started
inflicting lathi sticks. Lakhpat tried to run in order to rescue himself.
These persons gave beating to him as well, with lathi sticks. When the
complainant’s elder brother went to rescue them, these accused persons gave
lathi sticks blow to him as well. In the meantime, their wives, wives of
their sons had also come. Rishi, son of Ramu Brahmin of Talabka and Bhanu,
nephew of Jagdish Singh of Jaipur were also along with them. Because of
the beating by the accused persons, complainant’s uncle Nathu died on the
spot. Thereafter, accused persons fled away. The incident was witnessed
by a number of villagers. In the FIR, the appellants were also named as
accused persons.

FIR was registered and the matter was investigated by the Investigating
Officer (IO). During the investigation, the appellants were also
interrogated. They had stated that they are residing at Jaipur and at the
time of incident, they were in Jaipur. Thus, plea of alibi was taken by
these persons. Appellant No.1 and 2 are in police service and at relevant
time they were posted at Jaipur. Appellant No.2 Jagdish has lost his leg
while on traffic police duty. Appellant No.3 Bhanu is the appellant’s
sister’s son and claimed that he was also at Jaipur. The police after
investigation and considering the evidence with regard to the alibi of the
appellants Brijendra, Jagdish (who lost his leg while discharging traffic
police duty) and Bhanu, did not find any sufficient and reliable evidence
against the appellants and, therefore, did not file any challan against
them and kept the investigation pending under Section 178(3) Cr.P.C. When
the trial court by its Order dated 06.09.2000, without any challan being
submitted by the police, directed cognizance of the matter, the appellants
filed the S.B. Criminal Revision No. 505/2000 before the High Court and the
High Court vide its Order dated 16.04.2009 allowed the Revision and set
aside the Order dated 06.09.2000 of the trial court. The High Court,
however, made it clear that the said Order dated 16.04.2009 shall be
without prejudice to the powers of the Sessions Court to add any person in
the array of accused under Section 319 Cr.P.C.

During the period when S.B. Criminal Revision No. 505 of 2000 was pending
before the High Court, the police came to the conclusion that the
appellants were not involved in the incident. The police after
investigation, prepared the Final Report of closure of the case against the
appellants which was approved by the SP. In this manner, after completing
the investigation, the police filed the Challan only against other accused
persons, namely, Bhanwar Singh, Pratap Singh and Shambhu Singh.

Though, at the time of filing of the Challan, the police kept investigation
pending, subsequently it came to the conclusion that the appellants were
not involved and the final report of closure of the case against the
appellants was filed. The trial court framed charges against the aforesaid
three accused persons and the trial proceeded, though it has been delayed
abnormally as more than 15 years have been passed. Be that as it may, the
prosecution examined 23 witnesses including PW-1 Bharat Lal, PW-2 Kamla, PW-
3 Lakhpat, PW-4 Harkesh and PW-5 Amritlal sometime in the year 2009. On
26.03.2014 i.e. after five years of examination of the aforesaid witnesses,
complainant filed application under Section 319 of Cr.P.C. It is this
application which has been allowed by the Special Judge and the said order
has been affirmed by the High Court.

Mr. Sushil Kumar Jain, learned senior counsel appearing for the appellant,
submitted that the appellant had obtained information from the authorities
under the Right to Information Act about the status of the investigation
that was carried out by the Investigating Officer culminating into filing
of the final report. He drew our attention to the letter dated 19.02.2016
that was received by the appellant in response to his query under the Right
to Information Act wherein the information was supplied to the appellant
along with requisite documents that were collected during the
investigation. The details of these documents are as under:

Duty Certificate No. 2407 dated 04.05.2000 signed by the Assistant
Inspector General of Police (Training), Jaipur, Rajasthan, certifying that
Brijendra Singh, Junior Driver, was present on duty on 29.04.2000.

Medical Certificate No. 13365 dated 28.04.2000 issued by the Medical
Officer, Primary Medical Centre, Moti Kotla, Jaipur, certifying that
Jagdish Singh was suffering from ..... (illegible) disease on 24.04.2000
and was advised five days rest.

Letter dated 17.02.2002 signed by the Police Superintendent, District
Karauli, addressed to the Circle Officer, Circle – Kailadevi, giving the
sanction under Section 173(9) of the Cr.P.C. to end investigation in Cr.No.
53/2K, Police Station, Sapotra, and submit the report in the Court.

Statement of Rajendra Prasad, Deputy Inspector General of Police, Police
Head Office, Jaipur, recorded under Section 161 Cr.P.C. on 07.12.2000,
wherein he stated that on 29.04.2000, he was working on the post of
Assistant Inspector General of Police (Training), Jaipur, Rajasthan and
Brijendra Singh, Constable, was his driver who was present on duty on that
day. Log book of the vehicle was also produced to show the presence of
Brijendra Singh.

Statement recorded under Section 161 Cr.P.C. of Smt. Shashi Rajawat,
Medical Officer In-charge, Government Ayurvedic Hospital, Nahati Ka Naka,
wherein she had stated that as per the record one Bhanu Pratap Singh had
come to the hospital on 26.4.2000, suffering from sickness as he was having
loose motions and was vomiting as well. He was treated by the said Medical
Officer and was also prescribed medicines on a slip written by her. She
verified the prescription.

Statement of Mr. Naveel Kasliwal of Jain Medical Store, Opposite Government
Hospital, Moti Katla, Jaipur, recorded under Section 161 Cr.P.C., wherein
stated that the said Medical Store was owned by him. He verified that the
medical slip of the Government Hospital had been written by Sudhir Sharma
on 29.04.2000 and based thereupon he had given the medicines.

Statement of Sudhir Sharma, Medical Officer, Government Hospital, Moti
Katla, Jaipur, recorded under Section 161 Cr.P.C., wherein he stated that
from 22.02.2000 to 04.05.2000, his duty was at Vidhan Sabha from 3.00 p.m.
to 7.00 p.m. and in the morning from 8.00 a.m. till 12.00 noon at the
Government Hospital. He further stated that on 29.04.2000, a patient named
Jagdish Singh, who was suffering from malaria fever, had come and was
prescribed medicines by him on the slip, which are medicines of the
Government Hospital. He verified that the slip was written by him,
containing the prescription. Three days medicines were given to the
patient. On 02.05.2000, again two days medicines for the patient were
prescribed on the said slip.

Statement of Shri Mahendra Singh Tanwar, who was working as a driver at the
Government District Mahila Hospital, Sanganeri Gate, Jaipur, recorded under
Section 161 Cr.P.C. He stated that son of his elder brother, Bhanu Pratap
Singh, who was a student, was unwell for 15 to 20 days in the month of
April, 2000. For this purpose, he was given treatment in private hospital
but no improvement was found and, therefore, he was taken to Ayurvedic
Hospital on 26.04.2000 for treatment. He was suffering from loose motions
and cough for which he was prescribed three days medicines and the
medicines were repeated again on 29.04.2000 for further three days.

Mr. Jain, learned senior counsel, submitted that it is on the basis of the
aforesaid documents and statements of various persons, recorded during
investigation, the Investigating Officer was convinced that these three
appellants were in Jaipur at the time of the incident and, therefore, could
not have been present at the place of incident, i.e. Karauli, which is at a
distance of 176 kms. approximately, from Jaipur. Submission of Mr. Jain
was that merely on the basis of the statement of the complainant, which was
there before the Investigating Officer as well at the time of
investigation, the Special Judge could not have allowed the application
under Section 319 Cr.P.C. as no further or new material was produced before
the Court which could indicate the involvement of the appellants. Learned
counsel submitted that for exercising the powers under Section 319 Cr.P.C.,
which was discretionary and extraordinary in nature, the trial court should
have convinced itself that there is strong and cogent evidence indicating
that the appellants may be guilty of committing the offence. This
condition, according to him, was not satisfied. He further submitted that
the High Court also did not examine the matter from the aforesaid
perspective and merely went by the fact that the witnesses have deposed
about the involvement of the appellants in their deposition before the
Court.

Learned counsel for the respondents, on the other hand, argued that the
trial court has rightly exercised its power on the basis of depositions of
the witnesses before it, which were in the form of ‘evidence’ to the effect
that the appellants may have committed the offence in question. It was
argued that provisions of Section 319 Cr.P.C. were not meant for this
purpose only and the exercise of power by the trial court cannot be treated
as unwarranted. It was so observed by the High Court also while dismissing
the revision petition and observing that no illegality or perversity was
found in the orders of the trial court.

Powers of the Court to proceed under Section 319 Cr.P.C. even against those
persons who are not arraigned as accused, cannot be disputed. This
provision is meant to achieve the objective that real culprit should not
get away unpunished. A Constitution Bench of this Court in Hardeep Singh
v. State of Punjab & Ors., (2014) 3 SCC 92, explained the aforesaid purpose
behind this provision in the following manner:
“8. The constitutional mandate under Articles 20 and 21 of the Constitution
of India provides a protective umbrella for the smooth administration of
justice making adequate provisions to ensure a fair and efficacious trial
so that the accused does not get prejudiced after the law has been put into
motion to try him for the offence but at the same time also gives equal
protection to victims and to society at large to ensure that the guilty
does not get away from the clutches of law. For the empowerment of the
courts to ensure that the criminal administration of justice works
properly, the law was appropriately codified and modified by the
legislature under CrPC indicating as to how the courts should proceed in
order to ultimately find out the truth so that an innocent does not get
punished but at the same time, the guilty are brought to book under the
law. It is these ideals as enshrined under the Constitution and our laws
that have led to several decisions, whereby innovating methods and
progressive tools have been forged to find out the real truth and to ensure
that the guilty does not go unpunished.

xx xx xx

12. Section 319 CrPC springs out of the doctrine judex damnatur cum nocens
absolvitur (Judge is condemned when guilty is acquitted) and this doctrine
must be used as a beacon light while explaining the ambit and the spirit
underlying the enactment of Section 319 CrPC.

13. It is the duty of the court to do justice by punishing the real
culprit. Where the investigating agency for any reason does not array one
of the real culprits as an accused, the court is not powerless in calling
the said accused to face trial. The question remains under what
circumstances and at what stage should the court exercise its power as
contemplated in Section 319 CrPC?

xx xx xx

19. The court is the sole repository of justice and a duty is cast upon it
to uphold the rule of law and, therefore, it will be inappropriate to deny
the existence of such powers with the courts in our criminal justice system
where it is not uncommon that the real accused, at times, get away by
manipulating the investigating and/or the prosecuting agency. The desire to
avoid trial is so strong that an accused makes efforts at times to get
himself absolved even at the stage of investigation or inquiry even though
he may be connected with the commission of the offence.”

It also goes without saying that Section 319 Cr.P.C., which is an enabling
provision empowering the Court to take appropriate steps for proceeding
against any person, not being an accused, can be exercised at any time
after the charge-sheet is filed and before the pronouncement of the
judgment, except during the stage of Section 207/208 Cr.P.C., the committal
etc., which is only a pre-trial stage intended to put the process into
motion.

In Hardeep Singh’s case, the Constitution Bench has also settled the
controversy on the issue as to whether the word ‘evidence’ used in Section
319(1) Cr.P.C. has been used in a comprehensive sense and indicates the
evidence collected during investigation or the word ‘evidence’ is limited
to the evidence recorded during trial. It is held that it is that
material, after cognizance is taken by the Court, that is available to it
while making an inquiry into or trying an offence, which the court can
utilise or take into consideration for supporting reasons to summon any
person on the basis of evidence adduced before the Court. The word
‘evidence’ has to be understood in its wider sense, both at the stage of
trial and even at the stage of inquiry. It means that the power to proceed
against any person after summoning him can be exercised on the basis of any
such material as brought forth before it. At the same time, this Court
cautioned that the duty and obligation of the Court becomes more onerous to
invoke such powers consciously on such material after evidence has been led
during trial. The Court also clarified that ‘evidence’ under Section 319
Cr.P.C. could even be examination-in-chief and the Court is not required to
wait till such evidence is tested on cross-examination, as it is the
satisfaction of the Court which can be gathered from the reasons recorded
by the Court in respect of complicity of some other person(s) not facing
trial in the offence.

The moot question, however, is the degree of satisfaction that is required
for invoking the powers under Section 319 Cr.P.C. and the related question
is as to in what situations this power should be exercised in respect of a
person named in the FIR but not charge-sheeted. These two aspects were
also specifically dealt with by the Constitution Bench in Hardeep Singh’s
case and answered in the following manner:
“95. At the time of taking cognizance, the court has to see whether a
prima facie case is made out to proceed against the accused. Under Section
319 CrPC, though the test of prima facie case is the same, the degree of
satisfaction that is required is much stricter. A two-Judge Bench of this
Court in Vikas v. State of Rajasthan [(2014) 3 SCC 321] , held that on
the objective satisfaction of the court a person may be “arrested” or
“summoned”, as the circumstances of the case may require, if it appears
from the evidence that any such person not being the accused has committed
an offence for which such person could be tried together with the already
arraigned accused persons.

xx xx xx

105. Power under Section 319 CrPC is a discretionary and an extraordinary
power. It is to be exercised sparingly and only in those cases where the
circumstances of the case so warrant. It is not to be exercised because the
Magistrate or the Sessions Judge is of the opinion that some other person
may also be guilty of committing that offence. Only where strong and cogent
evidence occurs against a person from the evidence led before the court
that such power should be exercised and not in a casual and cavalier
manner.

106. Thus, we hold that though only a prima facie case is to be established
from the evidence led before the court, not necessarily tested on the anvil
of cross-examination, it requires much stronger evidence than mere
probability of his complicity. The test that has to be applied is one which
is more than prima facie case as exercised at the time of framing of
charge, but short of satisfaction to an extent that the evidence, if goes
unrebutted, would lead to conviction. In the absence of such satisfaction,
the court should refrain from exercising power under Section 319 CrPC. In
Section 319 CrPC the purpose of providing if “it appears from the evidence
that any person not being the accused has committed any offence” is clear
from the words “for which such person could be tried together with the
accused”. The words used are not “for which such person could be
convicted”. There is, therefore, no scope for the court acting under
Section 319 CrPC to form any opinion as to the guilt of the accused.
(emphasis supplied)”

In order to answer the question, some of the principles enunciated in
Hardeep Singh’s case may be recapitulated:
Power under Section 319 Cr.P.C. can be exercised by the trial court
at any stage during the trial, i.e., before the conclusion of trial, to
summon any person as an accused and face the trial in the ongoing case,
once the trial court finds that there is some ‘evidence’ against such a
person on the basis of which evidence it can be gathered that he appears to
be guilty of offence. The ‘evidence’ herein means the material that is
brought before the Court during trial. Insofar as the material/evidence
collected by the IO at the stage of inquiry is concerned, it can be
utilised for corroboration and to support the evidence recorded by the
Court to invoke the power under Section 319 Cr.P.C. No doubt, such
evidence that has surfaced in examination-in-chief, without cross-
examination of witnesses, can also be taken into consideration. However,
since it is a discretionary power given to the Court under Section 319
Cr.P.C. and is also an extraordinary one, same has to be exercised
sparingly and only in those cases where the circumstances of the case so
warrants. The degree of satisfaction is more than the degree which is
warranted at the time of framing of the charges against others in respect
of whom chargesheet was filed. Only where strong and cogent evidence
occurs against a person from the evidence led before the Court that such
power should be exercised. It is not to be exercised in a casual or a
cavalier manner. The prima facie opinion which is to be formed requires
stronger evidence than mere probability of his complicity.

When we translate the aforesaid principles with their application to the
facts of this case, we gather an impression that the trial court acted in a
casual and cavalier manner in passing the summoning order against the
appellants. The appellants were named in the FIR. Investigation was
carried out by the police. On the basis of material collected during
investigation, which has been referred to by us above, the IO found that
these appellants were in Jaipur city when the incident took place in
Kanaur, at a distance of 175 kms. The complainant and others who supported
the version in the FIR regarding alleged presence of the appellants at the
place of incident had also made statements under Section 161 Cr.P.C. to the
same effect. Notwithstanding the same, the police investigation revealed
that the statements of these persons regarding the presence of the
appellants at the place of occurrence was doubtful and did not inspire
confidence, in view of the documentary and other evidence collected during
the investigation, which depicted another story and clinchingly showed that
appellants plea of alibi was correct.

This record was before the trial court. Notwithstanding the same, the
trial court went by the deposition of complainant and some other persons in
their examination-in-chief, with no other material to support their so-
called verbal/ocular version. Thus, the ‘evidence’ recorded during trial
was nothing more than the statements which was already there under Section
161 Cr.P.C. recorded at the time of investigation of the case. No doubt,
the trial court would be competent to exercise its power even on the basis
of such statements recorded before it in examination-in-chief. However, in
a case like the present where plethora of evidence was collected by the IO
during investigation which suggested otherwise, the trial court was at
least duty bound to look into the same while forming prima facie opinion
and to see as to whether ‘much stronger evidence than mere possibility of
their (i.e. appellants) complicity has come on record. There is no
satisfaction of this nature. Even if we presume that the trial court was
not apprised of the same at the time when it passed the order (as the
appellants were not on the scene at that time), what is more troubling is
that even when this material on record was specifically brought to the
notice of the High Court in the Revision Petition filed by the appellants,
the High Court too blissfully ignored the said material. Except
reproducing the discussion contained in the order of the trial court and
expressing agreement therewith, nothing more has been done. Such orders
cannot stand judicial scrutiny.

As a consequence, this appeal is allowed setting aside the order of
summoning the appellants under Section 319 Cr.P.C.

.............................................J.
(A.K. SIKRI)

.............................................J.
(ASHOK BHUSHAN)

NEW DELHI;
APRIL 27, 2017

Thursday, May 25, 2017

Section 127 of the MRTP Act, which reads as under: “127. Lapsing of reservation: If any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional plan, or final Development plan comes into force or if proceedings for the acquisition of such land under this Act or under the Land Acquisition Act, 1894 (1 of 1894), are not commenced within such period, the owner or any person interested in the land may serve notice on the Planning Authority, Development Authority or as the case may be, Appropriate Authority to that effect; and if within six months from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise, permissible in the case of adjacent land under the relevant plan.” Having regard to the peculiar facts of this case and that the Municipal Corporation has defaulted in certain respects, we are of the view that ends of justice would be sub-served if we allow the owner/ appellant to develop the reservation of 60% of land and after handing over it to the Planning Authority free of cost, then remaining 40% land is allowed to be developed as per the adjoining use, subject to the conditions that are mentioned in the Policy dated May 02, 2016. This order is passed in exercise of our powers under Article 142 of the Constitution and without treating this as a precedent. It may not be considered as tweaking with the Policy as the same is, otherwise, not applicable. That is taken as a yardstick for resolving the dispute as both the parties agreed for it. We also make it clear that the appellant would not be called upon to pay any penalties and the award passed in the case would not come in the way of the parties.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2640 OF 2016

|SATELLITE DEVELOPERS LIMITED |.....APPELLANT(S) |
|VERSUS | |
|STATE OF MAHARASHTRA & ORS. |.....RESPONDENT(S) |

J U D G M E N T

A.K. SIKRI, J.
This appeal has a chequered history with many rounds of
litigations. At the same time, it may not be necessary to take a detailed
stock of various litigations. It is simply because of the reason that the
controversy is substantially narrowed down, which we are called upon to
decide in these proceedings. However, a glimpse of the events that have
taken place since the start of the dispute may be spelled out in order to
have an idea of the nature of the dispute that had initially arisen and how
the controversy has remarkably shrunk and stands before us in a totally
truncated form. The short list of dates and event, therefore, would
suffice, which we reproduce below:

On September 16, 1991, the appellant claimed rights over the property being
C.S. No. 1/255 on Foras Road, Tardeo Division, Mumbai, admeasuring 10,394
sq.mts. Under the Maharashtra Regional and Town Planning Act, 1966
(hereinafter referred to as the ‘MRTP’ Act), the Municipal Corporation of
Greater Bombay can requisition the land for development for the purposes
specified under the said Act. In respect of the aforesaid land, a Draft
Development Plan (DDP) was prepared by the Municipal Corporation in the
year 1991. Under the said Plan, 3548.52 sq.mts. of land was reserved for
recreation ground, 1355 sq.mts for maternity home and 5491.4 sq.mts. for
housing the dishoused. However, later the reservation for recreation
ground was reduced to 2000 sq.mts. The MRTP Act further provides for
acquisition of such land, by agreement or under the Land Acquisition Act,
1894 in order to enable the Municipal Corporation to develop the land as
per the DDP. If the steps in this behalf are not taken within the
stipulated period, it results into lapsing of the land reserved for
development. This was so provided under Section 127 of the MRTP Act, which
reads as under:
“127. Lapsing of reservation: If any land reserved, allotted or
designated for any purpose specified in any plan under this Act is not
acquired by agreement within ten years from the date on which a final
Regional plan, or final Development plan comes into force or if proceedings
for the acquisition of such land under this Act or under the Land
Acquisition Act, 1894 (1 of 1894), are not commenced within such period,
the owner or any person interested in the land may serve notice on the
Planning Authority, Development Authority or as the case may be,
Appropriate Authority to that effect; and if within six months from the
date of the service of such notice, the land is not acquired or no steps as
aforesaid are commenced for its acquisition, the reservation, allotment or
designation shall be deemed to have lapsed, and thereupon the land shall be
deemed to be released from such reservation, allotment or designation and
shall become available to the owner for the purpose of development as
otherwise, permissible in the case of adjacent land under the relevant
plan.”

On February 06, 2003, the appellant served upon the respondent Corporation
a purchase notice under Section 127 of the MRTP Act and called upon the
Corporation to initiate acquisition proceedings in respect of land reserved
for recreational ground. On February 27, 2004, Notification under Section
6 of the Land Acquisition Act, 1894, read with Section 126 of the MRTP Act
was issued by respondent No.1. On June 21, 2006, by notice under Sections
9 and 10 of the Land Acquisition Act, respondent No.4 called upon the
appellant to furnish details required as per the notice issued and also to
record objections in respect of measurement of the subject land. On
September 22, 2006, the appellants gave their No Objection for handing over
the subject land against monetary compensation. On April 22, 2010, the
appellant filed Writ Petition No. 1184 of 2010 wherein a prayer is made for
a declaration of lapsing of the reservation. The appellant, however, also
prayed for an alternative order in the nature of a direction to the
respondents to acquire the land.

On July 21, 2010, the High Court disposed of the writ petition directing
respondent No.4 to pass the final award within a month and granted liberty
to the appellant to revive the writ petition in case of non-compliance by
respondent No.4. It may be mentioned herein that the appellant had made a
statement that it will not press prayer (a) in the writ petition for de-
reservation of the subject land. The operative portion of the order of the
High Court in this behalf reads as under:
“4. We, therefore, dispose of the petition with a direction that
respondent No.4 shall pass the award on or before 31st October, 2010 and
make payment of compensation in accordance with the award within a month
thereafter.

5. In case the respondent No.4 does not comply with the aforesaid time
limit, the petitioner will be at liberty to move this Court for appropriate
directions. Liberty is also granted to the petitioner to revive the
petition. This direction is given in view of the assurance from the
petitioner’s Counsel that petitioners will furnish the required documents
to the authorities within reasonable time limit.”

Thereafter, on October 25, 2010, the High Court extended the time for
passing of the award by respondent No.4 till December 31, 2010 and further
extended the time to pay the compensation to January 31, 2011. On March
31, 2011, the Municipal Corporation sought further three months time to
comply with the above-mentioned order dated July 21, 2010. The High Court
directed that 50% of the award amount be deposited in the Court.
Respondent No.3 had signed an award on October 31, 2011 for 2000.25 sq.mts.
of land to be acquired. The final compensation as per the award is
Rs.14,48,19,014/- and proper documents were required to be submitted.

On July 17, 2012, the appellant filed another writ petition bearing No.
1600 of 2012 with a prayer to quash the award dated October 31, 2011 passed
by respondent No.4 on the ground that the appellant was never called on
before signing of the award and neither was the compensation amount paid by
the Municipal Corporation to respondent No.3 as per the provisions of the
Land Acquisition Act. Significantly, the appellant, apart from seeking
orders of quashing of the award and de-reservation of the subject land,
again sought to be compensated in terms of the Award. In spite of repeated
extensions sought by the Municipal Corporation, it failed to pay the
compensation to the appellant, as directed by the High Court by its order
dated July 21, 2010.

Writ Petition No. 1184 of 2010 was finally heard and decided on May 08,
2013. The High Court, after narrating the aforesaid events, found that the
respondents did not act with due diligence, even after service of notice
upon them under Section 127 of the Act. At the same time, the High Court
was of the view that since the remedy under Article 226 of the Constitution
of India was in the nature of prerogative remedy and the extraordinary
jurisdiction of the High Court was purely discretionary, in the facts of
the present case, it was not necessary to exercise the jurisdiction under
Article 226 of the Constitution. The High Court, therefore, refused to
grant prayer (a) based on notice dated February 06, 2003 given by the
appellant to the respondents under Section 127 of the MRTP Act. In the
process, the High Court observed that the appellant had waived the effect
of its notice under Section 127 inasmuch as it was regularly following up
with the respondents to complete the acquisition proceedings and claim
compensation against the same. The High Court has also held that as Writ
Petition No. 1600 of 2010 was pending, the question regarding validity of
the award can be argued therein.

The present appeals were filed questioning the validity of the aforesaid
judgment dated May 08, 2013 passed by the High Court. The matter was taken
up from time to time. As pointed out in the beginning, since the
controversy has been narrowed down, because of the positive attitude shown
by both the parties, it is not necessary to discuss the legal nuances.

The Municipal Corporation has placed on record the Notification dated May
10, 2016 issued by the Urban Development Department of the Government of
Maharashtra. It has offered to settle the matter on the terms contained in
the said Notification. This Notification provides for a 70/30 policy
whereby the Chief Officer may allow the owner to develop the reservation on
70% of the land and after handing over it to the planning authority free of
cost then remaining 30% land may be allowed to be developed as per
adjoining use, subject to the following terms/conditions:
The owner shall be entitled to develop remaining 30% land for the uses
permissible in adjoining zone with full permissible FSI of the entire plot
and permissible TDR potential of the entire plot.
The Municipal Chief Officer, if required, shall allow the TDR for the
unutilised FSI if any (after deducting in-situ FSI as mentioned in
Sr.No.(i) above) which shall be utilised as per the TDR utilisation
regulations.
No reservation shall allow to be developed partly.

Time was given to the appellant to respond to the said suggestion. The
appellant, while maintaining that the DDP had lapsed in view of the
provisions contained in Section 127 of the Act, responded to the aforesaid
proposal of the Municipal Corporation vide it is letter dated December 26,
2016 by stating that the appellant was ready to consider developing 40% of
the plot as a Recreation Garden for the city at their own cost if 60% of
the balance plot is available to it for development, subject to two
conditions, viz., (i) as per MCGM policy, 100% of FSI/ development
potential of the entire plot is allowed to be constructed on the 60%; and
(ii) any open space deficiency in the planning of the building thereon be
condoned without payment of any premium therefor.

When the matter was heard, both the parties were agreeable to resolve the
dispute, but pressed their respective stance. The appellant submitted that
the proposal quoted in its letter dated December 26, 2016 be accepted,
whereas the Municipal Corporation impressed upon this Court to dispose of
the matter in terms of Notification dated May 10, 2016. While taking their
respective positions in the manner aforesaid, Mr. Sidharth Luthra, learned
senior counsel appearing for the appellant, and Mr. Mukul Rohatgi, learned
Attorney General appearing for the Municipal Corporation, agreed that they
would leave it to the Court to take any appropriate and suitable decision
in the matter.

We have considered the matter. Strictly speaking, the Policy is not
applicable in the instant case. However, both the parties want that to be
the basis for resolving the controversy. For this reason, the appellant is
not pressing its challenge predicated on Section 127 of the MRTP Act.
However, at the same time, it wants some modification of policy terms in
its favour. This constructive approach of both the parties commends to us.
Having regard to the peculiar facts of this case and that the Municipal
Corporation has defaulted in certain respects, we are of the view that ends
of justice would be sub-served if we allow the owner/ appellant to develop
the reservation of 60% of land and after handing over it to the Planning
Authority free of cost, then remaining 40% land is allowed to be developed
as per the adjoining use, subject to the conditions that are mentioned in
the Policy dated May 02, 2016.

This order is passed in exercise of our powers under Article 142 of the
Constitution and without treating this as a precedent. It may not be
considered as tweaking with the Policy as the same is, otherwise, not
applicable. That is taken as a yardstick for resolving the dispute as both
the parties agreed for it. We also make it clear that the appellant would
not be called upon to pay any penalties and the award passed in the case
would not come in the way of the parties.

The civil appeal is disposed of in the aforesaid terms.
No costs.

.............................................J.
(A.K. SIKRI)

.............................................J.
(ABHAY MANOHAR SAPRE)
NEW DELHI;
APRIL 27, 2017.

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Friday, May 26, 2017

Thursday, May 25, 2017