LAW FOR ALL

Tuesday, August 3, 2021

The case for premature release of the prisoner in terms of the policy of the State Government dated 13.8.2008, the policy which was applicable on the date of his conviction, can be considered only after he completes 14 years of actual imprisonment. However, the State Government can consider the prisoner in question for premature release after undergoing imprisonment for less than 14 years only under Article 161 of the Constitution.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 721 OF 2021

(ARISING OUT OF SLP (CRIMINAL) NO. 4407 OF 2020)

THE STATE OF HARYANA & ORS. .....APPELLANT(S)

VERSUS

RAJ KUMAR @ BITTU .....RESPONDENT(S)

W I T H

CRIMINAL APPEAL NO. 722 OF 2021

(ARISING OUT OF SLP (CRIMINAL) NO. 4634 OF 2020)

A N D

CRIMINAL APPEAL NO. 723 OF 2021

(ARISING OUT OF SLP (CRIMINAL) NO. 2350 OF 2021)

J U D G M E N T

HEMANT GUPTA, J.

1. The State and the writ petitioner before the High Court,1

are aggrieved by an order passed by the learned Single Bench of the

High Court of Punjab & Haryana at Chandigarh on 12.5.2020

whereby the policies of the State Government to grant remission

to the prisoners were decided, inter alia, directing the State to

consider the feasibility of drafting a fresh policy particularly in re1 Hereinafter referred to as the ‘prisoner’

spect of exercise of powers conferred under Article 161 of the

Constitution. It was also held that the State may also consider

the feasibility of having a policy with retrospective operation,

provided the same does not lead to discrimination amongst substantial number of identically situated prisoners. The Court further observed that till such time a decision is taken, the appropriate Government can exercise its powers under Sections 432 and

433 of the Code of Criminal Procedure, 19732

in terms of policy

dated 13.8.2008, but while strictly adhering to the restrictions

imposed under Section 433-A of the Code.

2. The learned Single Bench has referred to certain policies circulated by the State Government. First policy referred to was circulated on 23.4.1987 wherein the convicts on whom punishment of

life imprisonment is imposed on conviction of an offence for

which death is one of the punishments provided by law, or where

the sentence of death imposed on a person had been commuted

under Section 433 of the Code on or after 18.12.78, would be

considered by the State Government for premature release after

they have undergone 14 years of substantive sentence. Thereafter, policies dated 28.9.1988, 19.11.1991, 8.8.2000 and

12.4.2002 were issued contemplating that case of premature release would be considered on individual basis after review by the

State Level Committee falling within the purview of Section 433

of the Code and cases thereafter shall be put up to the Hon’ble

Governor. However, the policy dated 13.8.2008 did not contem2 For short, the ‘Code’

plate that the individual cases will have to be placed before the

Hon’ble Governor.

3. The relevant provisions of the Constitution and the Code read as

thus:

Constitution of India

“Article 161 – Power of Governor to grant pardons etc.,

and to suspend, remit or commute sentences in certain

cases. - The Governor of a State shall have the power to

grant pardons, reprieves, respites or remissions of

punishment or to suspend, remit or commute the

sentence of any person convicted of any offence against

any law relating to a matter to which the executive

power of the State extends.

Code of Criminal Procedure 1973

432. Power to suspend or remit sentences. - (1) When

any person has been sentenced to punishment for an

offence, the appropriate Government may, at any

time, without conditions or upon any conditions which

the person sentenced accepts, suspend the execution of

his sentence or remit the whole or any part of the

punishment to which he has been sentenced.

(2) xxxx xxxx

(5) The appropriate Government may, by general rules or

special orders, give directions as to the suspension of

sentences and the conditions on which petitions should

be presented and dealt with:

Provided that in the case of any sentence (other than

a sentence of fine) passed on a male person above the

age of eighteen years, no such petition by the person

sentenced or by any other person on his behalf shall be

entertained, unless the person sentenced is in jail, and—

(a) where such petition is made by the person

sentenced, it is presented through the officer in

charge of the jail; or

(b) where such petition is made by any other

person, it contains a declaration that the person

sentenced is in jail.

(6) xxxx xxxx

(7) In this section and in Section 433, the expression “appropriate Government” means—

(a) in cases where the sentence is for an offence

against, or the order referred to in sub-section

(6) is passed under, any law relating to a matter

to which the executive power of the Union extends, the Central Government;

(b) in other cases, the Government of the State

within which the offender is sentenced or the

said order is passed.

433. Power to commute sentence. - The appropriate

Government may, without the consent of the person

sentenced, commute—

(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of

1860);

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen

years or for fine;

simple imprisonment for any term to which that

person might have been sentenced, or for fine;

(d) a sentence of simple imprisonment, for fine.

433-A. Restriction on powers of remission or

commutation in certain cases. - Notwithstanding

anything contained in Section 432, where a sentence of

imprisonment for life is imposed on conviction of a

person for an offence for which death is one of the

punishments provided by law, or where a sentence of

death imposed on a person has been commuted under

Section 433 into one of imprisonment for life, such

person shall not be released from prison unless he had

served at least fourteen years of imprisonment.”

4. The issue arising in the present appeals is regarding applicability

of policy dated 12.4.2002 or the policy dated 13.8.2008 to the

prisoner convicted on 25.3.2010. This Court in State of

Haryana & Ors. v. Jagdish

inter-alia held (para 52) that the

policy dated 4.2.1993 refers to the exercise of powers under

Article 161 of the Constitution whereas the policy dated

13.8.2008 is in exercise of the powers conferred under Section

432 read with Sections 433 and 433-A of the Code. The said

policy is a rule of procedure, thus, subordinate to the

Constitution. The power exercised under Article 161 is a

mandate of the Constitution, therefore, the policy dated

13.8.2008 cannot override the policy dated 4.2.1993. It is the

said finding which is required to be examined in the present

appeals, though in the context of similar later policy dated

12.4.2002. The two polices are reproduced hereinbelow before

the case of premature release can be considered. The two

polices in juxtaposition read as thus:

3 (2010) 4 SCC 216

12th

April, 2002

In supersession of Haryana Government Memo No. 36/135/91-1JJ(II), dated 8-

8-2000 which was further substituted bearing same number and date on 23-

2-2001, the Government have decided to revise the policy regarding

premature release of life convicts as follows:

(aa) Convicts whose Death Their cases may be considered

sentence has been Commuted after completion of 20 years actual

to life imprisonment and convicts sentence and 25 years total

who have been imprisoned for life sentence with remissions.

Having committed a heinous crime

such as”

(i) Murder after rape repeated/chained

rape/unnatural offences.

xxx xxx xxx

(a) Convicts who have been imprisoned Their cases may be considered

for life having committed a heinous after completion of 14 years

actual

crime such as: sentence including undertrial

period provided that the total

period of such sentence including

remissions is not less than 20

years.

(i) Murder with wrongful confinement

for extortion/robbery.

(b) Adult life convicts who have been Their cases may be considered

imprisoned for life but whose cases after completion of 10 years

are not covered under (aa) and (a) actual sentence including undertrial

above and who have committed period provided that the total

crime which are not considered period of such sentence including

heinous as mentioned in clause remissions is not less than 14 years.

13th

August, 2008

No. 36/135/91-1JJ(II)- In exercise of the powers conferred by Sub-section (1) of

Section 432 read with Section 433 of the Code of Criminal Procedure, 1973 (Act 2 of

1974) and in supersession of Haryana Government Memo No. 36/135/91-1JJ(II), dated

the 12

April, 2002 and all other earlier policies, the Governor of Haryana hereby

frames the following policy regarding premature release of life convicts, namely:

(a) Convicts whose death sentence has Their cases for pre-mature release may

been commuted to life imprisonment and considered after completion of 20 years

convicts who have been imprisoned for actual sentence and 25 years total

life having committed a heinous crime sentence with remissions.

such as:

(i) Murder with rape/unnatural

offences.

xxx xxx xxx

(b) Convicts who have been imprisoned Their cases for pre-mature release may

for life having committed any crime be considered after completion of 14

which is defined in IPC and/or NDPS years actual sentence including

Act as punishable with death sentence. Undertrial period; provided that the

total period of such sentence including

remissions is not less than 20 years.

for life having committed a crime completion of 10 years actual sentence

which is defined in IPC as punishable including undertrial period; provided

with life imprisonment but not with that the total period of such sentence

death sentence. Including remissions is not less than

14 years.

(aa) & (a) above.

xxx xxx xxx

5. The Director General of Prisons, Haryana shall put up all such premature

release cases to the State Level Committee for consideration. The Committee

will meet once in three months according to the convenience of the Minister

for jails, Haryana so that cases of review under this policy are not delayed.

The Director General of Prisons, Haryana further will forward a copy of the

decision taken by the Committee alongwith the roll of each of the life convict

to the State Government within one week for further action. Such cases will

be put up to the Governor through the Minister for Jails and the Chief

Minister, Haryana with full background of the prisoner and recommendations

of the committee alongwith the copy of judgment etc. for orders under Article

161 of the Constitution of India.

xxx xxx xxx

8. The Director General of Prisons, Haryana shall put up all such premature release

cases to the State Level Committee for consideration. The Committee will meet once

in three months, so that cases of review under this policy are not delayed. The

Director General of Prisons, Haryana will forward a copy of the decision taken by the

Committee along with the commutation roll of each of the life convict to the State

Government within one week for further action. Such cases will be put up to the Chief

Minister, Haryana along with full background of the convicts and recommendations of

the Committee and a copy of the Court judgement etc. for orders under Section 432

Cr.P.C. It is reiterated that no convict has fundamental right of remission or

shortening of sentence. The State Government in exercise of its executive

discretionary power of remission is to consider each individual case keeping in view

all the relevant factors. This policy is issued in exercise of the power of the State in

such a way that no discrimination is made while considering the case of life convicts

for premature release. This policy shall be applicable to all premature release cases

of life convicts with effect from date of notification irrespective of their date of

conviction.

The date for consideration of premature release of a convict would be the date of

completion of his requisite sentence in the policy.

5. In Jagdish, this Court did not approve the judgment of this Court

in Sadhu Singh & Ors. v. State of Punjab

wherein it was

held that these policies are executive instructions. Instead, this

Court approved the judgment of this Court reported as State of

Haryana v. Mahender Singh & Ors.

wherein it was held that

these policies of remission are in exercise of the powers

conferred under Section 59(5) of the Prisons Act, 1894,

contemplating “for the award of marks and the shortening of

sentences” and thus, they are statutory rules. Sections 401 and

402 of the Code were not empowering the appropriate

Government to issue general or special orders and the conditions

on which petitions for premature release should be presented

and dealt with. The Sections 432 and 433 of the Code had

corresponding provisions in Sections 401 and 402 of the Code

but sub-section (5) of Section 432 empowers an appropriate

Government to issue general or special orders. Therefore, after

the commencement of the Code on 1.4.1974, the power to issue

general or special orders allowing remissions is traceable to

Section 432 of the Code. Hence, the policies issued thereafter

are statutory in nature, having being framed in exercise of

powers conferred on appropriate Government under Section 432

of the Code.

6. None of the policies framed after 1974, except the one which

4 (1984) 2 SCC 310

5 (2007) 13 SCC 606

was published in the State Government Gazette on 13.8.2008,

referred to any provision of law under which such decisions have

been communicated to the Director General of Prisons. The

Constitution Bench judgment of this Court reported as L. Hazari

Mal Kuthiala v. Income Tax Officer, Special Circle, Ambala

Cantt.

held that exercise of powers will be referrable to a

jurisdiction which confers validity upon it and not to a jurisdiction

under which it will be nugatory. This Court held as under:

“5. …The Commissioner, when he transferred this case,

referred not to the Patiala Income Tax Act, but to the

Indian Income Tax Act, and it is contended that if the

Patiala Income Tax Act was in force for purposes of

reassessment, action should have been taken under that

Act and not the Indian Income Tax Act. This argument,

however, loses point, because the exercise of a power will

be referable to a jurisdiction which confers validity upon it

and not to a jurisdiction under which it will be nugatory.

This principle is well-settled. See Pitamber

Vajirshet v. Dhandu Navlapa [ILR 12 Bom 486, 489] .”

7. Such principle of law was reiterated in a three-Judge Bench

judgment of this Court reported as N. Mani v. Sangeetha

Theatre & Ors.

wherein it was held as under:

“9. It is well settled that if an authority has a power under

the law merely because while exercising that power the

source of power is not specifically referred to or a

reference is made to a wrong provision of law, that by

itself does not vitiate the exercise of power so long as the

power does exist and can be traced to a source available

in law.”

8. Therefore, even if there is no specific reference to the statutory

power under which such policies have been issued or even if a

6 AIR 1961 SC 200

7 (2004) 12 SCC 278

wrong provision is mentioned, the policy instructions would

continue to be statutory instructions framed either under the

Prisons Act, 1894 or under Section 432 of the Code.

9. In Maru Ram v. Union of India & Ors.

, a Constitution Bench

considering the scope of Article 161 of the Constitution and the

provisions of the Code held as under:

“54. …. The second plea, revolves round ‘pardon

jurisprudence”, if we may coarsely call it that way,

enshrined impregnably in Articles 72 and 161 and the

effect of Section 433-A thereon. The power to remit is a

constitutional power and any legislation must fail which

seeks to curtail its scope and emasculate its mechanics.

Thirdly, the exercise of this plenary power cannot be left

to the fancy, frolic or frown of government, State or

Central, but must embrace reason, relevance and

reformation, as all public power in a republic must. On this

basis, we will have to scrutinize and screen the survival

value of the various remission schemes and shortsentencing projects, not to test their supremacy over

Section 433-A, but to train the wide and beneficent power

to remit life sentence without the hardship of fourteen

fettered years.

xxx xxx xxx

57. We now move on to the second contention which

deals with the power of remission under the Constitution

and the fruits of its exercise vis-à-vis Section 433-A.

Nobody has a case – indeed can be heard to contend –

that Article 72 and 161 must yield to Section 433-

A…………………...

xxx xxx xxx

59. It is apparent that superficially viewed, the two

powers, one constitutional and the other statutory, are

coextensive. But two things may be similar but not the

same. That is precisely the difference. We cannot agree

that the power which is the creature of the Code can be

equated with a high prerogative vested by the

8 (1981) 1 SCC 107

Constitution in the highest functionaries of the Union and

the States. The source is different, the substance is

different, the strength is different, although the stream

may be flowing along the same bed. We see the two

powers as far from being identical, and, obviously, the

constitutional power is ‘untouchable’ and

‘unapproachable’ and cannot suffer the vicissitudes of

simple legislative processes. Therefore, Section 433-A

cannot be invalidated as indirectly violative of Articles 72

and 161. What the Code gives, it can take, and so, an

embargo on Sections 432 and 433(a) is within the

legislative power of Parliament.

60. Even so, we must remember the constitutional status

of Articles 72 and 161 and it is common ground that

Section 433-A does not stand and cannot affect even a

wee bit the pardon power of the Governor or the

President. The necessary sequel to this logic is that

notwithstanding Section 433-A the President and the

Governor continue to exercise the power of commutation

and release under the aforesaid articles.

61. … The upshot is that the State Government, whether

the Governor likes it or not, can advice and act under

Article 161, the Governor being bound by that advice. The

action of commutation and release can thus be pursuant

to a governmental decision and the order may issue even

without the Governor's approval although, under the Rules

of Business and as a matter of constitutional courtesy, it

is obligatory that the signature of the Governor should

authorise the pardon, commutation or

release…………....The Governor vis-à-vis his Cabinet is no

higher than the President save in a narrow area which

does not include Article 161. The constitutional conclusion

is that the Governor is but a shorthand expression for the

State Government and the President is an abbreviation for

the Central Government.

xxx xxx xxx

69. …. We have no hesitation to reject the notion that

Articles 72/161 should remain uncanalised. We have to

direct the provisional acceptance of the remission and

short-sentencing schemes as good guide-lines for exercise

of pardon power – a jurisdiction meant to be used as often

and as systematically as possible and not to be abused,

much as the temptation so to do may press upon the pen

of power.

70. The learned Solicitor-General is right that these Rules

are plainly made under the Prisons Act and not under the

constitutional power, the former fail under the pressure of

Section 433-A. But that, by no means, precludes the

States from adopting as working rules the same remission

schemes which seem to us to be fairly reasonable. After

all, the government cannot meticulously study each

prisoner and the present praxis of marks, until a more

advanced and expertly advised scheme is evolved, may

work. Section 433-A cannot forbid this method because it

is immunized by Article 161. We strongly suggest that,

without break, the same rules and schemes of remission

be continued as a transmigration of soul into Article 161,

as it were, and benefits extended to all who fall within

their benign orbit – save, of course, in special cases which

may require other relevant consideration. The wide power

of executive clemency cannot be bound down even by

self-created rules.

xxx xxx xxx

72. We conclude by formulating our findings:

(1) xxx xxx

(2) We affirm the current supremacy of Section 433-A

over the Remission Rules and short-sentencing

statutes made by the various States.

(3) xxx xxx

(4) We hold that Section 432 and Section 433 are not a

manifestation of Articles 72 and 161 of the

Constitution but a separate, though similar power,

and Section 433-A, by nullifying wholly or partially

these prior provisions does not violate or detract

from the full operation of the constitutional power to

pardon, commute and the like.

(5) xxx xxx

(6) We follow Godse case to hold that imprisonment for

life lasts until the last breath, and whatever the

length of remissions earned, the prisoner can claim

release only if the remaining sentence is remitted by

government.

(7) xxx xxx

(8) The power under Articles 72 and 161 of the

Constitution can be exercised by the Central and

State Governments, not by the President or Governor

on their own. The advice of the appropriate

Government binds the Head of the State. No

separate order for each individual case is necessary

but any general order made must be clear enough to

identify the group of cases and indicate the

application of mind to the whole group.

(9) xxx xxx

(10) Although the remission rules or short-sentencing

provisions proprio vigore may not apply as against

Section 433-A, they will override Section 433-A if the

government, Central or State, guides itself by the

self-same rules or schemes in the exercise of its

constitutional power. We regard it as fair that until

fresh rules are made in keeping with experience

gathered, current social conditions and accepted

penological thinking – a desirable step, in our view –

the present remission and release schemes may

usefully be taken as guide-lines under Articles 72/161

and orders for release passed. We cannot fault the

government, if in some intractably savage

delinquents, Section 433-A is itself treated as a

guide-line for exercise of Articles 72/161. These

observations of ours are recommendatory to avoid a

hiatus, but it is for Government, Central or State, to

decide whether and why the current Remission Rules

should not survive until replaced by a more

wholesome scheme.

(11) The U.P. Prisoners’ Release on Probation Act, 1938,

enabling limited enlargement under licence will be

effective as legislatively sanctioned imprisonment of

a loose and liberal type and such licensed

enlargement will be reckoned for the purpose of the

14-year duration. Similar other statutes and rules will

enjoy similar efficacy.

xxx xxx”

10. The Constitution Bench in Union of India v. V. Sriharan &

Ors.

inter alia examined the provisions of Articles 161 and 162

of the Constitution. It was held as under:

“22. Therefore, the resultant position would be that the

Executive Power of the Union and its authorities in relation

to grant of remission, commutation, etc. are available and

can be exercised by virtue of the implication of Article

73(1)(a) read along with its proviso and the exercise of

9 (2016) 7 SCC 1

such power by the State would be controlled and limited

as stipulated in the proviso to Article 162 to the extent to

which such control and limitations are prescribed in the

Criminal Procedure Code.”

11. Thus, the power under Article 161 of the Constitution can be

exercised by the State Governments, not by the Governor on his

own. The advice of the appropriate Government binds the Head

of the State. No separate order for each individual case is

necessary but any general order made must be clear enough to

identify the group of cases and indicate the application of mind

to the whole group. Therefore, the policies of the State

Government are composite policies encompassing both

situations under Article 161 of the Constitution and Sections 432,

433 and 433-A of the Code. The remission under Article 161 of

the Constitution will override Section 433-A of the Code, if the

State Government decides to be governed of its constitutional

power.

12. In State of Haryana v. Nauratta Singh & Ors.

, this Court

referred to Maru Ram’s case holding that period of 14 years as

specified in Section 433-A of the Code is the actual period of

imprisonment undergone by the prisoner without including any

period of remission. This Court was examining the case where

the accused was acquitted by the trial court but was convicted

by the High Court. He was on bail during the pendency of the

appeal before the High Court. The claim of the prisoner was that

10 (2000) 3 SCC 514

the period of bail in terms of the order of the High Court has to

be included in the period of 14 years of imprisonment. The Court

held as under:

“5. We may point out that Section 433-A of the Code was

introduced in the statute-book on 8-12-1978 by which the

power of a State Government to release a person (who

has been convicted and sentenced to life imprisonment of

any offence punishable with death or imprisonment for

life) has been curtailed by introducing the rider that such

convicted person should have served at least 14 years of

imprisonment. A Constitutional Bench of this Court has

held in Maru Ram v. Union of India that the period of 14

years envisaged in the new provision is the actual period

of imprisonment undergone by the prisoner without

including any period of remission.”

9. In Jagdish, the question raised was as to whether the policy

which makes a provision for remission of sentence should be the

one which was existing on the date of the conviction of the

accused or the one which existed on the date of consideration of

his case for premature release by the appropriate authority. The

Court held that the amendment inserting Section 433-A in the

Code would apply prospectively. The life convicts who had been

sentenced prior to 18.12.1978 i.e., date of enforcement of

amendment would not come within the purview of the provisions

of Section 433-A of the Code. The remission rules/short-sentencing policies could be taken as guidelines for exercise of powers

under Article 72 or 161 of the Constitution and in such an eventuality, remission rules would override Section 433-A of the

Code. This Court held that Section 433-A of the Code cannot and

does not in any way affect the constitutional power conferred on

the President/Governor under Articles 72/161 of the Constitution.

It was held as under:

“26. This Court in Ashok Kumar [(1991) 3 SCC 498 : 1991

SCC (Cri) 845 : AIR 1991 SC 1792] considered the matter

elaborately taking into consideration a large number of its

earlier judgments including Maru Ram [(1981) 1 SCC 107 :

1981 SCC (Cri) 112] , Bhagirath v. Delhi Admn. [(1985) 2

SCC 580 : 1985 SCC (Cri) 280 : AIR 1985 SC 1050] ; Kehar

Singh v. Union of India [(1989) 1 SCC 204 : 1989 SCC (Cri)

86 : AIR 1989 SC 653] and came to the following

conclusions:

(i) Section 433-A CrPC denied premature release

before completion of actual 14 years of incarceration to only those limited convicts convicted of a

capital offence i.e. exceptionally heinous crime;

(ii) Section 433-A CrPC cannot and does not in any

way affect the constitutional power conferred on

the President/Governor under Articles 72/161 of the

Constitution;

(iii) Remission Rules have a limited scope and in

case of a convict undergoing sentence for life imprisonment, it acquires significance only if the sentence is commuted or remitted subject to Section

433-A CrPC or in exercise of constitutional power

under Article 72/161 of the Constitution; and

(iv) Case of a convict can be considered under Articles 72 and 161 of the Constitution treating the

1958 Rules.

xx xx xx

28. Nevertheless, we may point out that the power of

the sovereign to grant remission is within its exclusive

domain and it is for this reason that our Constitution

makers went on to incorporate the provisions of Article

72 and Article 161 of the Constitution of India. This responsibility was cast upon the executive through a

constitutional mandate to ensure that some public

purpose may require fulfilment by grant of remission

in appropriate cases. This power was never intended

to be used or utilised by the executive as an unbridled

power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded

and which does not, in any way, wipe out the convic16

tion. It is a power which the sovereign exercises

against its own judicial mandate. The act of remission

of the State does not undo what has been done judicially. The punishment awarded through a judgment is

not overruled but the convict gets benefit of a liberalised policy of State pardon. However, the exercise of

such power under Article 161 of the Constitution or under Section 433-A CrPC may have a different flavour in

the statutory provisions, as short-sentencing policy

brings about a mere reduction in the period of imprisonment whereas an act of clemency under Article 161

of the Constitution commutes the sentence itself. as

guidelines.”

13. Thus, a prisoner has to undergo a minimum period of

imprisonment of 14 years without remission in the case of an

offence, the conviction of which carries death sentence, to take

benefit of policy of remission framed by an appropriate

government under Section 432 of the Code in view of the

overriding provision of Section 433-A of the Code. However, the

power of the Hon’ble Governor to commute sentence or to pardon

is independent of any such restriction or limitation. The State

Government can frame a policy of grant of remissions either under

Section 432 of the Code or under Article 161 of the Constitution.

The Governor continues to exercise the power of commutation and

release under Article 161 of the Constitution, notwithstanding

Section 433-A of the Code. The action of commutation and release

can thus be pursuant to a governmental decision and the order

may be issued even without the Governor's approval. However,

under the Rules of Business and as a matter of constitutional

courtesy, it may seek approval of the Governor, if such release is

under Article 161 of the Constitution.

14. Still further, it is the consistent view of this Court that the policy

prevalent at the time of conviction shall be taken into

consideration for considering the premature release of a prisoner.

In Jagdish, while determining the policy which would be

applicable for the remission of sentence, this Court held as under:

“27. In Mahender Singh, this Court as referred to

hereinabove held that the policy decision applicable

in such cases would be which was prevailing at the

time of his conviction. This conclusion was arrived on

the following ground: (SCC p. 619, para 38)

38. A right to be considered for remission,

keeping in view the constitutional safeguards of

a convict under Articles 20 and 21 of the

Constitution of India, must be held to be a legal

one. Such a legal right emanates from not only

the Prisons Act but also from the Rules framed

thereunder.”

15. The policy of premature release dated 13.8.2008 was issued in

the name of the Governor and was published in the official

Gazette. Such notification is said to have been issued in exercise

of the powers conferred under sub-section (1) of Sections 432

and 433 of the Code. Keeping in view the principles of law

enunciated above, such policy is in exercise of the powers

conferred on the appropriate Government in terms of the

provisions of the Code and is thus statutory in nature. The other

policy dated 12.4.2002 is in fact a memo issued by the Financial

Commissioner and Secretary to Government, Haryana, Jails

Department, Chandigarh to the Director General of Prisons,

Haryana, Chandigarh. Such policy of premature release would

again be traceable to the provisions of the Code.

16. Mr. Nikhil Goel, learned Additional Advocate General for the State

of Haryana, submitted that different policies have been issued

from time to time and the later policy has superseded the earlier

one, so there was no hiatus when a policy of premature release

was not in operation or at any given point of time, the two

polices were operational. The argument of Mr. Goel merit

acceptance inasmuch as the policy dated 12.4.2002 is in

supersession of earlier policy circulated on 8.8.2000 substituted

later on 23.2.2001. The policy dated 13.8.2008 has substituted

the earlier policy dated 12.4.2002 and such policy has been

published on behalf of the Governor of the State. The policy

dated 13.8.2008 has been issued in exercise of powers conferred

by sub-section (1) of Section 432 read with Section 433 of the

Code and in supersession of Government Memorandum dated

12.4.2002 and all other policies. The policy dated 13.8.2008 is a

statutory policy. The said policy cannot and has not tried to take

over the discretion vested in the Hon’ble Governor to grant

pardons, remissions or commute sentence in exercise of powers

conferred under Article 161 of the Constitution but it is the policy

issued under a Statute and therefore, such policy has a statutory

force. The policy dated 12.4.2002 is again a statutory policy and

cannot be put at a higher pedestal than the policy dated

13.8.2008 for the reason that it seeks approval from the Hon’ble

Governor. Such policy has been specifically superseded on

13.8.2008, ceases to be operative for the convicts who are

convicted after 13.8.2008.

17. Section 433-A of the Code starts with a non-obstante clause

restricting the right of the appropriate Government, to suspend

the sentence of imprisonment for life imposed on conviction of a

person for an offence for which death is one of the punishments

provided by law, that such person shall not be released from

prison unless he has served at least 14 years of imprisonment.

Therefore, the power of the appropriate Government to release a

prisoner after serving 14 years of actual imprisonment is vested

with the State Government. On the other hand, the power

conferred on the Governor, though exercised on the aid and

advice of the State, is without any restriction of the actual period

of imprisonment undergone by the prisoner. Thus, if a prisoner

has undergone more than 14 years of actual imprisonment, the

State Government, as an appropriate Government, is competent

to pass an order of premature release, but if the prisoner has not

undergone 14 years or more of actual imprisonment, the

Governor has a power to grant pardons, reprieves, respites and

remissions of punishment or to suspend, remit or commute the

sentence of any person de hors the restrictions imposed under

Section 433-A of the Constitution. Such power is in exercise of

the power of the sovereign, though the Governor is bound to act

on the aid and advice of the State Government.

18. The policy of 12.4.2002 is applicable in the cases of the

prisoners who have undergone actual sentence of 14 years of

imprisonment and also the prisoners who have not completed 14

years of actual imprisonment. Therefore, the cases of the

prisoners who have completed 14 years of actual imprisonment

can be decided by the State Government in terms of Sections

432 and 433 of the Code unless the State Government choses to

seek the approval of the Hon’ble Governor. There is nothing

illegal or improper to seek approval of the Hon’ble Governor in

all cases but in the cases where the prisoner has not undergone

14 years of actual imprisonment falling within scope of Section

433-A of the Code, it is for the Hon’ble Governor to exercise the

power conferred under Article 161 of the Constitution, though on

the aid and advice of the State Government. We find that clause

(b) of the policy dated 12.4.2002 provided for the cases of the

prisoners to be considered after completion of 10 years of actual

sentence including undertrial period provided the total period of

such sentence including remission is not less than 14 years. The

remissions not contemplated by Section 433-A of the Code, the

power to remit or commute sentence can be exercised by the

Governor in exercise of the power conferred under Article 161 of

the Constitution. This explains the last line in the policy that

such cases will be put up before the Governor with full

background of the prisoner and recommendation of the

Committee including copy of the judgment for orders under

Article 161 of the Constitution.

19. The Notification dated 13.8.2008 published in exercise of the

powers conferred upon an appropriate Government under

Section 432(5) of the Code, provides that the appropriate

Government may, by general rules or special orders, give

directions as to the suspension of sentences and the conditions

on which petitions should be presented and dealt with. Therefore,

all the polices issued from time to time are under Section 432 of

the Code, though no reference is made to such provisions in any

of the policies except the last one dated 13.8.2008. The source of

power to frame guidelines or the policies for remission etc.

was earlier in Section 59(5) of the Prisons Act, 1894 and now in

terms of Section 432(5) of the Code. Therefore, such policies are

statutory in nature, framed in exercise of power conferred upon

appropriate government under Section 432(5) of the Code.

20. The clause 2(c) of the policy dated 13.8.2008 deals with the

convicts who have been imprisoned for life having committed a

crime which is defined in the Indian Penal Code, 1860 (IPC) as

punishable for life imprisonment but not with death sentence.

The cases of such prisoners can be considered after completion

of 10 years of actual sentence including undertrial period

provided the total period of such sentence including remission is

not less than 14 years. The distinction is that in such cases, the

remission is taken into consideration whereas, the remissions

earned by a prisoner convicted for an offence under Section 302

IPC, an offence punishable with death, cannot be considered for

premature release. If such a prisoner is to be considered for

premature release in the cases of life imprisonment for an

offence under IPC, the bar under Section 433-A of the Code

would not apply. The judgment in Jagdish has to be read in the

light of the distinction which we have drawn between the power

exercised by the Hon’ble Governor and the power to be exercised

by the State Government.

21. Therefore, we find that the directions issued by the High Court

are not sustainable for the reason that the policies have to be

read keeping in view the period of imprisonment undergone by a

prisoner. The power of remission is to be exercised by the State

Government, as an appropriate Government, if the prisoner has

undergone 14 years of actual imprisonment in the cases falling

within the scope of Section 433-A of the Code and in case the

imprisonment is less than 14 years, the power of premature

release can be exercised by the Hon’ble Governor though on the

aid and advice of the State Government.

22. Consequently, the directions issued by the learned Single Bench

are not sustainable and are hereby set aside.

23. The prisoner herein has completed 12 years and 25 days as on

6.7.2021 as per the custody certificate produced by the State.

The case for premature release of the prisoner in terms of the

policy of the State Government dated 13.8.2008, the policy

which was applicable on the date of his conviction, can be

considered only after he completes 14 years of actual

imprisonment. However, the State Government can consider the

prisoner in question for premature release after undergoing

imprisonment for less than 14 years only under Article 161 of the

Constitution.

24. The appeals are disposed of accordingly.

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

(HEMANT GUPTA)

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

(A.S. BOPANNA)

NEW DELHI;

AUGUST 03, 2021.

The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Penal Code-Firstly, from the evidence as tendered, we did not see reason to permit the prosecution since in our opinion there is no intentional falsehood uttered. The other relevant facts also indicate that the factual matrix herein does not indicate that it is expedient in the interest of justice to initiate an inquiry and expose the appellant to criminal prosecution. On this aspect it is to be noted that the instant case is not a case where the nomination paper which was complete in all respect was filed and it had been improperly rejected in the scrutiny stage. The allegation of the election petitioner is that the Returning Officer had refused to receive the nomination paper, which the learned Judge in the ultimate analysis has accepted and termed the same as an improper rejection. Even that be so, to indicate that the nonacceptance alleged by the election petitioner was a deliberate action by the Returning Officer with a specific purpose, it has 26 neither been pleaded nor proved in the course of the proceedings so as to penalise the appellant to face yet another proceeding.- In the result, the following order: (i) Civil Appeal No. 4821/2012 is disposed of as infructuous. (ii) Civil Appeal No. 6171/2012 is allowed. Consequently, the direction contained in para 175 of the impugned order to the Registrar General of the High Court to register the complaint against the appellant, the then Returning Officer before the competent court for proceeding in accordance with law for the purpose of provisions of Section 193 of the Indian Penal Code is set aside.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4821 OF 2012

N.S. Nandiesha Reddy ……Appellant(s)

Versus

Kavitha Mahesh ….Respondent(s)

With

Civil Appeal No. 6171/2012

J U D G M E N T

A.S. Bopanna, J.

1. The appellants in both these appeals are assailing

the order dated 01.06.2012 passed by the learned Single

Judge of the High Court of Karnataka at Bangalore in

Election Petition No. 7/2008. By the said order, the

election of the appellant in C.A. No. 4821/2012 (Mr.

Nandiesha Reddy) from 151 K.R. Pura Legislative

Assembly constituency in Bangalore Urban District is

held to be void, in terms of Section 100 (1) (c) of the

Representation of People Act 1951. Further, in the course

of the said order the learned Judge has directed the

Registrar General of the High Court to register a

complaint against the appellant in C.A. No.6171/2012

(Mr. Ashok Mensinkai) before the Competent Court for

proceeding in accordance with law for the purpose of

provisions of Section 193 Indian Penal Code, 1860. The

said direction is issued since according to the learned

Judge, the appellant in the said appeal who was the

Returning Officer for the said election; on being examined

as PW.3 in the Election Petition had given false evidence

before the Court. In the above circumstance, the

appellant in C.A. No. 4821/2012 (Mr. Nandiesha Reddy)

has assailed the order in its entirety while the appellant

in C.A. No. 6171/2012 (Mr. Ashok Mensinkai) has

assailed the order insofar as directing prosecution

against the appellant.

2. In the above background, we have heard Mr. Jayant

Mohan, learned counsel for the appellant in C.A.

No.4821/2012 and Mr. S.N. Bhat, learned counsel for the

appellant in C.A. No.6171/2012. We have also heard the

respondent who had appeared as a partyinperson in

both these appeals and perused the relevant material, as

also the written submission filed on either side.

3. The issue arises from the election which was held in

April/May 2008 to the Karnataka State Legislative

Assembly. The present case as noted earlier, relates to

one of the constituencies, namely, 151 K.R. Pura

Legislative Assembly Constituency. The elections were

notified on 16.04.2008 and as per the calendar of events

the publication of result was fixed on 27.05.2008, soon

after which the Karnataka State Legislative Assembly for

that term was constituted. In that background, the term

of the Assembly was up to May, 2013 whereafter the

subsequent election to constitute the Karnataka State

Assembly afresh for the next term has taken place. In

that circumstance though by the order impugned dated

01.06.2012, the election of the appellant in C.A.

No.4821/2012 (Mr. Nandiesha Reddy) was held to be

void, immediately thereafter, the instant appeal was filed

and this Court had granted stay of the impugned order

while issuing notice on 11.06.2012. In that view, the

appellant has completed the term of the Assembly for

which he was elected. As such Mr. Jayant Mohan,

learned counsel for the appellant in C.A. No.4821/2012

(Mr. Nandiesha Reddy) has submitted that the grievance

put forth in the appeal does not survive for consideration.

Having noted the sequence it is evident that the prayer in

C.A. No.4821/2012 has rendered itself infructuous and

the appeal does not survive for consideration.

4. Though that be the position, Mr. S.N. Bhat, learned

counsel for the appellant in C.A. No.6171/2012 submits

that the said appeal needs consideration in view of the

direction issued by the learned Judge to prosecute the

appellant Mr. Ashok Mensinkai. In that regard, the

learned counsel has drawn our attention to the manner

of consideration made by the learned Judge presiding

over the election tribunal and contends that there is no

proper and definite conclusion reached by the learned

Judge as to the deliberate falsehood uttered in the

statement alleged to have been made by the appellant. It

is contended that the appellant in fact was cited as a

witness by the election petitioner herself and in the

course of the examinationinchief; in answer to the

questions put by the learned Judge and in the crossexamination, the appellant has been consistent in

narrating the facts sequentially as it had occurred on

that day. The appellant though was initially arrayed as

respondent No.4 to the election petition, he had been

deleted and as such the appellant did not have the

opportunity of putting forth his written

statement/objection statement to the Election Petition so

as to controvert the allegations made against the

appellant. In any event, the election petitioner had

examined the appellant and in respect of the statements

made by the appellant the election petitioner did not

choose to crossexamine the appellant after seeking to

treat him as a hostile witness if the allegation of

tendering false evidence was to be made. Further, the

learned Judge after noticing the two versions, one by the

election petitioner and the other by the appellant, though

was entitled to rely upon one of the versions as probable

to arrive at his conclusion on the merit of the case, that

by itself cannot be made the basis to order prosecution.

That apart no opportunity was granted to the appellant in

terms of Section 340 of the Criminal Procedure Code,

1973 before forming an opinion to direct the Registrar to

lodge a complaint. It is his further case that the action of

the present nature could not have been initiated unless

there was material to indicate that the witness had

uttered falsehood intentionally. The appellant could not

have gained either way if the election petitioner had

contested the election or not. In such situation no

purpose would have been served by not accepting her

nomination if she had actually complied with the

requirement and presented the nomination papers. The

appellant had accepted 30 nomination papers from 18

different candidates for the same election and on

23.04.2008 i.e., the last day itself the appellant had

received 18 nomination papers and one more would not

have made any difference. In that view he contends that

the order is not sustainable.

5. The respondent partyinperson however, contends

that the appellant had by not accepting the nomination,

denied an opportunity for the respondent to contest the

elections and in such circumstance the learned Judge

had noted the inconsistent statements made by the

appellant in the course of his evidence to justify his

illegal action. The learned Judge has therefore rightly

arrived at the conclusion to direct prosecution and such

order does not call for interference is her contention.

6. Having noticed the contentions put forth in C.A. No.

6171/2012 and also having noted that the dispute in

C.A. No.4821/2012 has rendered itself infructuous, we

restrict our consideration limited to the question as to

whether the appellant in C.A.No.6171/2012 (Mr. Ashok

Mensinkai) should be exposed to criminal prosecution

and whether it is expedient to do so in a matter of the

present nature. It is no doubt true that the election

petition itself is predicated on the allegation against the

appellant in C.A. No.6171/2012 to the effect that as a

Returning Officer for the said election he had wrongly

refused to accept the nomination papers sought to be

submitted by the election petitioner which amounts to

improper rejection of the nomination papers in terms of

Section 100 (1) (c) of the Act. The consequence of the

same has befallen on the elected candidate. However,

presently the ground of improper rejection of nomination

paper as alleged and the conclusion of the learned

Judge on that aspect fades into insignificance for the

reasons stated earlier.

7. Therefore, the limited aspect we are required to

notice in the present situation is only with regard to the

statements made by the appellant in his evidence as

PW.3 which are considered by the learned Judge to be

inconsistent and, therefore, stated to amount to perjury.

In that regard whether the action initiated by the learned

Judge on that aspect is justified is the issue, if not, it will

call for interference. As noted, the appellant was

examined as PW.3. In the course of his deposition, he

had stated that he can identify the election petitioner as

an intending candidate in 151 K.R. Pura Legislative

Assembly Constituency. He has further stated that he

does not remember if the election petitioner had met him

on three occasions on 23.04.2008 which was the last day

for filing nomination papers. He has however stated that

he remembers to have seen the election petitioner on two

occasions, on that day. He has also stated that he does

not remember the exact time of the election petitioner

meeting him for the first time, but it could be between

3.00 pm and 3.15 pm. On the second occasion he

recollects to have met the election petitioner on the same

day between 5.30 pm and 6.00 pm while he was going

out from office after work for the day. The request made

by the election petitioner at that stage to accept the

nomination paper was declined since the time for

acceptance was over. In that context he states that the

nomination paper which was marked as Exhibit P1 had

not been presented before him between 11.00 am and

3.00 pm on 23.04.2008 which was the permitted time for

filing. He also states that he did not refuse to accept

Exhibit P1(nomination paper) for the reason it was not

accompanied by other necessary documents but in fact it

was not presented before him.

8. As against what has been stated by the appellant,

the election petitioner who examined herself as PW1 has

stated that on 23.04.2008 she had submitted her

nomination paper before the appellant for the general

election. On delivering the nomination papers she had

requested the Returning Officer for extracting the new

part number and serial number of the ten proposers to

fill in column no. 2B. The Returning Officer is stated to

have told her that he did not have the electoral roll of

K.R. Pura State Assembly Constituency and that she

should approach the revenue officials working in the

ground floor of the building. She states that as per his

request she had entrusted the job to her husband and

supporters to collect the details from the ground floor

office. Later, she came to know from her husband and

her supporter that everybody in the revenue office were

having lunch break and the details could not be secured.

She thereafter, states that for the first time at 14.00

hours when she delivered nomination papers, the

Returning Officer directed her to collect the details but

she could not get the details of her ten proposers who

had signed the nomination papers. She states that on

realising the time factor that it was the last day for filing

nomination papers she submitted her nomination papers

by 15.00 hours before the Returning Officer once again

and stated that she would fill the column subsequently

as she has time upto 24 hours to fill the column. She

has further alleged that the appellant refused to receive

the nomination papers. What is relevant to be noted is

that the election petitioner in the course of her crossexamination recorded in para 37 states that after

deputing her husband and supporter to get the details

and while she was waiting, she was outside the hall

where the Returning Officer was sitting. This would

indicate, what the election petitioner has stated is in tune

with the sequence stated by the appellant except for the

variance in the stand insofar as actually tendering the

nomination paper and pressing for acceptance and

according to election petitioner the same not being

accepted.

9. From the two sets of statements, one by the

appellant as PW.3 and the other by the election petitioner

as PW.1 in the course of adjudication, the reliability of

one of them was to be deduced. The crux of the matter

was to find out as to whether the election petitioner had

actually submitted her nomination paper and the

appellant had declined to receive the same. Insofar as

that aspect, if the conclusion was in favour of the election

petitioner it would be a case of an improper rejection and,

on that aspect, it is not necessary for us to pronounce

upon since the appeal on that question does not survive.

However, only issue for consideration is, from the nature

of the statements made above, can the Court come to a

conclusion that the appellant has uttered deliberate or

intentional falsehood in the course of Court proceedings.

In that regard, it is to be noted that the learned Judge

during the course of the proceedings had made certain

observations and had extracted the earlier order in the

final impugned order dated 01.06.2012, the same reads

as hereunder:

ORDER PASSED IN THE MORNING SESSION

“The witness is not very sure of what

development took place and the manner of his

deposition is inconsistent every second and

minute keeps varying and to support his

version that he had conducted in accordance

with rules and regulations and in a proper

manner states that a certain development had

taken place around some time, but goes back

on the earlier version that the last nomination

paper was received at 2.58 pm but later

mentioned it was after 3 pm and on being

cautioned by the court, goes back to the earlier

version of 2.58 pm etc.

This witness is obviously lying on oath, his

deposition is inconsistent, varying by the

second, different version each time. A person

giving different version of the same incident is

not merely uttering falsehood once or the other

time, but also committing perjury.

This witness lacks credibility for deposing

before the court on oath and requires to be

dealt with in accordance with law and being a

public servant who has taken oath to depose

truth and only truth before this court has been

attempting to depose incorrect and false

statements which per se is not only perjury

within the meaning of section 191 of Indian

Penal Code but also committing contempt of

court.

Therefore, no need or occasion for

recording further evidence of this witness and if

need be, can be summoned later by the court

for questioning. As of now, the witness is

discharged.

Witness is directed to remain present in the

court hall. Call this matter again at 2.30 pm.

ORDER PASSED IN THE AFTERNOON SESSION:

Further crossexamination of the witness is

stopped at this stage to enable the witness to

procure relevant necessary, official records

throwing light on the developments that had

taken place during his functioning as the

returning officer in the K R Pura assembly

constituency.

As the witness states that the records

pertaining to conduct of elections etc. are all

now available at the office of the district election

officer, Mahadevapura Zone, BBMP, Bangalore,

who is ex officio holding this post is otherwise

functioning as joint commissioner, BBMP at

Mahadevapura and as this officer has to part

with records. The witness to be enabled to

secure these records and attend court for

further cross examination with the records.

Sri Shashikanth, learned counsel for the

respondent submits that for such purpose, it is

necessary for the election petitioner to make an

application listing the documents and records

that are required to be summoned and

summons may be issued on such applications

to the officer who is having the custody of such

records.

It is said that procedure is the handmaid of

justice and procedure should be given only

such importance as is warranted to ensure fair

play, equal opportunity and practical

possibilities of adhering to the procedure.

An election petition though is a creature of

the Representation of People Act 1951 and

being a petition at the instance of an aggrieved

persons with regard to the validity of the

declaration of election result, and for

questioning a correctness or otherwise of the

declaration of results and may have the

characteristics of an adversary litigation, it

nevertheless has a flavour of public interest

imbedded into it as the conduct of free and fair

election is the ‘sine qua non’ of any healthy

democratic process. Records relating to the

conduct of elections in a general election either

to an assembly or to the parliament are not

private documents but are public documents or

records and if any such record can throw light

on the manner of conduct of elections in any

particular assembly segment, while it is a

relevant record, familiarity or ignorance of such

a record on the part of the election petitioner

cannot come in the way of court scrutinizing

the record for being satisfied or even for being

apprised about the manner of conduct of

election.

It is therefore, hereby ordered and the

witness who has appeared before the Court as

PW3 today and who had functioned as the

returning officer of the K R Pura assembly

constituency is hereby directed to contact the

district election officer with this order secure

the relevant records to enable him to depose

before this court correctly with precision,

unambiguity and then appear with such

records before this court on 28.6.2011 as the

witness states that he requires at least seven

days’ time to complete this exercise.

The district election officer who is also the

joint commissioner, BBMP, Mahadevapura, is

hereby directed to ensure compliance with this

order and to hand over such records which are

in his custody relating to the conduct of K R

Pura assembly election to enable the witness to

depose further before this court in a proper and

precise manner as the then returning officer of

the constituency by identifying the record.

The Registrar General of this Court is

directed to ensure a copy of this order is served

on the district election officer, Mahadevapura

zone, BBMP, Mahadevapura, Bangalore48.

The witness also be furnished with a copy of

this order.

List the petition for further crossexamination of PW3 on 28.6.2011.”

10. As per the version of the election petitioner she had

met the Returning Officer at 2 pm on 23.04.2008 when

certain requirements were indicated due to which she

made an effort to secure the same from the ground floor

and after about 45 minutes her husband and the

supporter came back with the information that they were

unable to get the same. She has also stated that at that

point she waiting outside the room where the Returning

Officer was seated. If that version of the election

petitioner herself is kept in view, it is not the case of the

election petitioner herself that at 2 pm when she had

come, she had met the Returning Officer and insisted for

receiving the nomination paper even without the details

to be filled in column 2B. On the other hand, if the case

that she made efforts to get the details of the proposers

due to which some time lapsed and then she presented

the nomination paper without the details and if the time

spent in that regard as stated by her is about 45 minutes

which is a rough estimate and not precise, the version of

the appellant that he had met the election petitioner

around 3.00 pm to 3.15 pm on that day is a probable

version. This is more so when the fact remains that the

appellant was taking note of the nomination papers

presented by another independent candidate Smt.

Ambujakshi. If in that context he has stated that the

election petitioner had met him between 3.00 pm and

3.15 pm, it could only mean that it was after the process

of receiving the nomination paper of Smt. Ambujakshi. In

fact, it is in her own deposition the election petitioner has

stated that when she was unable to get the details and

realising the time factor that it was the last day for filing

nomination papers, she submitted her nomination papers

by 15.00 hours (i.e. 3 pm) before the Returning Officer.

Even in that situation, if the learned Judge were to come

to a conclusion that the election petitioner having already

entered the office of the Returning Officer prior to the

closing hours for receipt of the nomination papers at 3.00

pm and in that context due to the guidelines the

nomination papers were to be received, notwithstanding

the same being incomplete, it could be an aspect on the

question of improper rejection. But certainly, the same

could not have been made the basis to conclude that the

appellant was not truthful.

11. The extracted portion of the earlier order dated

15.06.2011 indicates an observation made by the learned

Judge to indicate that he has gone back on the version

wherein he had stated that the last nomination paper

was received at 2.58 pm but later mentioned it was after

3.00 pm and on being cautioned by the court he goes

back to the earlier version of 2.58 pm etc. On this aspect

also we do not see any deliberate falsehood uttered by the

appellant, much less is there any inconsistency. The

statement made by the appellant was that he received the

nomination paper of Smt. Ambujakshi i.e. the last

candidate at 2.58 pm and it had taken him about 78

minutes to go through the papers, after which she had to

take an oath as stated in para40 of his further crossexamination. If that be the position, the statement would

mean that the last nomination paper of Smt. Ambujakshi

was presented at 2.58 pm and when the process was over

it was past 3.00 pm. Only after that he had met the

election petitioner that is between 3 pm and 3.15 pm.

Even with regard to the statement that he had met the

General Observer on three occasions and later stated it

was on two occasions are to be noted in the context that

the evidence was being tendered after more than three

years and all inconsequential events cannot be recalled

with precision. The further evidence of the appellant is

referred in para 81 to 87 of the order, but learned Judge

has not pointed out any deliberate or intentional

falsehood arising therefrom. Mere reference to

inconsistent statements alone is not sufficient to take

action unless a definite finding is given that they are

irreconcilable; one is opposed to the other so as to make

one of them deliberately false.

12. Therefore, as noticed from the evidence recorded,

the appellant had stated that the nomination papers had

not been presented to him before the closing hours and

had sought to justify his action. He had also stated about

the procedure followed in all cases and the presence of

observers in his office. On the other hand, the election

petitioner had contended that she had made an attempt

to submit the nomination paper which was not received

by the appellant who was the Returning Officer. When he

had received 18 nomination papers on that day there was

no particular reason to refuse the election petitioner’s

nomination, nor has motive been suggested or

established. The learned Judge has no doubt accepted

the version put forth by the election petitioner. That by

itself does not indicate that appellant had uttered

falsehood intentionally and deliberately before the court

so as to initiate action under Section 193 Indian Penal

Code. The proceedings of the day in the office of the

Returning Officer, namely, the appellant was videorecorded and the same was marked as Exhibit P21 to P24

in the proceedings. The learned Judge did not choose to

refer to the same to come to a definite conclusion as to

whether the election petitioner had actually met the

Returning Officer, if so, the actual time and in that

context a finding was not recorded that the depiction in

the videorecording is quite contrary to the statement of

the Returning Officer so as to indicate that he had

uttered deliberate falsehood.

13. Apart from the factual aspect noted above relating

to the evidence tendered in the instant case, it is not a

case where the appellant was a partyrespondent to the

election petition where his written version was available.

On the other hand, he was examined as a witness by the

election petitioner as PW3. No doubt the learned Judge

has chosen to call him as a court witness by interrupting

the crossexamination and posing questions to him. Be

that as it may, it was also not a situation where the

petitioner had filed an application under Section 340 of

Criminal Procedure Code, 1973 seeking action. If that

was the case the appellant would have had an

opportunity to file his version in reply to the application.

That apart, the learned Judge also had not put the

appellant on notice on the allegation of committing

perjury and provided him an opportunity nor has the

learned Judge come to the conclusion that one of the

versions is deliberate or intentional falsehood and that

therefore, action is necessary to be taken against him. On

the other hand, the learned Judge during the course of

passing the final order has made certain observations

and directed that the Registrar General shall file a

complaint.

14. It is apposite to refer to the decision of this Court in

the case of KTMS Mohammad and Another vs. Union

of India, 1992 3 SCC 178 wherein it is observed as

hereunder:

“37. The mere fact that a deponent has

made contradictory statements at two

different stages in a judicial proceeding is

not by itself always sufficient to justify a

prosecution for perjury under Section 193

IPC but it must be established that the

deponent has intentionally given a false

statement in any stage of the ‘judicial

proceeding’ or fabricated false evidence for

the purpose of being used in any stage of

the judicial proceeding. Further, such a

prosecution for perjury should be taken

only if it is expedient in the interest of

justice.”

Further, in the case of Amarsang Nathaji vs.

Hardik Harshadbhai Patel & Ors., 2017 1 SCC 113

relied on by the learned counsel for the appellant, this

Court on referring to the case of KTMS Mohammad vs.

Union of India (supra) has held as hereunder:

“6. The mere fact that a person has made

a contradictory statement in a judicial

proceeding is not by itself always

sufficient to justify a prosecution under

Sections 199 and 200 of the Penal Code,

1860 (45 of 1860) (hereinafter referred to

as “IPC”); but it must be shown that the

defendant has intentionally given a false

statement at any stage of the judicial

proceedings or fabricated false evidence

for the purpose of using the same at any

stage of the judicial proceedings. Even

after the above position has emerged

also, still the court has to form an

opinion that it is expedient in the

interests of justice to initiate an inquiry

into the offences of false evidence and

offences against public justice and more

specifically referred to in Section 340 (1)

CrPC, having regard to the overall

factual matrix as well as the probable

consequences of such a prosecution. The

court must be satisfied that such an

inquiry is required in the interests of

justice and appropriate in the facts of

the case.”

15. The respondentelection petitioner has referred to

the decisions in the case of Mahavir Singh and Ors. vs.

Naresh Chandra & Anr. (AIR 2001 SC 134) and the

case of Jagan Nath vs. Jaswant Singh & Ors. (AIR

1954 SC 210) in her written submission. We however, do

not find any assistance from the same as they are not

relevant.

16. In the light of the above stated facts, we are of the

opinion that notwithstanding the conclusion reached by

the learned Judge on the aspect of improper rejection of

the nomination paper, the correctness of which was not

required to be gone into for the reasons stated supra, the

manner in which the learned Judge has concluded that

the appellant in C.A. No.6171/2012 was inconsistent in

his statements in the course of his evidence tendered by

him as PW3 is not justified. Further the conclusion

reached that he is to be prosecuted, without the findings

being recorded regarding deliberate or intentional

falsehood cannot be sustained. Hence the direction

issued to the Registrar General of the High Court to

initiate the proceedings by lodging a criminal complaint

also cannot be sustained in the facts and circumstances

arising in this case.

17. As noted from the decision in the case of Amarsang

Nathaji (supra) and the position of law which is well

established is that even in a case where the Court comes

to the conclusion on the aspect of intentional false

evidence, still the Court has to form an opinion whether

it is expedient in the interest of justice to initiate an

inquiry into the offences of false evidence, having regard

to the overall factual matrix as well as the probable

consequences of such prosecution. The Court must be

satisfied that such an inquiry is required in the interest

of justice and is appropriate in the facts of the case. In

that backdrop, insofar as the observation made by the

learned Judge of the election tribunal relating to the need

for maintaining purity of the election process which is the

heart and soul of democracy and in that situation the

role of the Returning Officer being pivotal, we fully concur

with the same. However, it is also to be noted, merely

because of that position the Returning Officer in the

instant case need not be exposed to prosecution.

18. Firstly, from the evidence as tendered, we did not

see reason to permit the prosecution since in our opinion

there is no intentional falsehood uttered. The other

relevant facts also indicate that the factual matrix herein

does not indicate that it is expedient in the interest of

justice to initiate an inquiry and expose the appellant to

criminal prosecution. On this aspect it is to be noted

that the instant case is not a case where the nomination

paper which was complete in all respect was filed and it

had been improperly rejected in the scrutiny stage. The

allegation of the election petitioner is that the Returning

Officer had refused to receive the nomination paper,

which the learned Judge in the ultimate analysis has

accepted and termed the same as an improper rejection.

Even that be so, to indicate that the nonacceptance

alleged by the election petitioner was a deliberate action

by the Returning Officer with a specific purpose, it has

neither been pleaded nor proved in the course of the

proceedings so as to penalise the appellant to face yet

another proceeding. The Assembly Constituency

concerned is a vast constituency which had nearly four

lakh voters on the electoral rolls. The election petitioner

had not placed material to indicate that she had

contested in any earlier election or had wide support base

in the election concerned and it is in that view she had

been shut out from the contest. Further there is no

allegation that the Returning Officer was acting at the

instance or behest of any other candidate who was feeling

threatened by the participation of the election petitioner

in the election process.

19. On the other hand, the election petitioner, as per

her own case was seeking to present the nomination

paper which was incomplete and even in that

circumstance, she had come to the office of the Returning

Officer only at 2.00 pm on the last day for filing

nomination which was to close at 3.00 pm. Thereafter

she made attempts to complete the formalities in filling

up the nomination paper and having failed had still

presented the nomination paper since according to her

the needful could have been done within 24 hours. In

such a case it cannot be said that the Returning Officer

with an ulterior motive had declined to receive the

nomination paper and to cover up his folly was seeking to

tender false evidence before the Court and thereby to

justify his illegal action. In fact, the appellant had

received the other nomination papers submitted to him

on the last day even as late as 2.58 pm. It is also the

consistent view of this Court that the success of a

candidate who has won at an election should not be

lightly interfered with. In any event it ought not to have

been made the basis to initiate prosecution by terming

the appellant as unreliable witness. Further, we notice

that the appellant was aged 59 years as on 15.06.2011

while recording his deposition and a decade has passed

by and now would be 69 years. As pointed out by the

learned counsel for the appellant, the appellant has

retired from service about eight years back. For all these

reasons also, we find that any proceeding against the

appellant is also not expedient apart from not being

justified.

In the result, the following order:

(i) Civil Appeal No. 4821/2012 is disposed of as

infructuous.

(ii) Civil Appeal No. 6171/2012 is allowed.

Consequently, the direction contained in para

175 of the impugned order to the Registrar

General of the High Court to register the

complaint against the appellant, the then

Returning Officer before the competent court

for proceeding in accordance with law for the

purpose of provisions of Section 193 of the

Indian Penal Code is set aside.

(iii) Parties to bear their own costs.

(iv) Pending applications, if any, shall stand

disposed of.

………….…………CJI

(N.V. RAMANA)

………….…………….J.

(A.S. BOPANNA)

………….…………….J.

(HRISHIKESH ROY)

New Delhi,

August 03, 2021

Monday, August 2, 2021

“(i) Whether the Tribunal and the Commissioner of Income Tax (Exemptions) were right in law in directing the cancellation of registration of the Appellant granted under Section 12AA to the Appellant Trust on the ground that the Trust had received bogus donation from School of Human Genetics and Population Health? (ii) Whether statement recorded in the course of survey under Section 133A of the Act has any probative or evidentiary value? 8. It was submitted on behalf of Trust that it had received donations from various donors and the Trust was under no obligation to verify the source of the funds of the donor or whether those funds were acquired by performance of any unlawful activity. It was further submitted that the funds were applied for the purposes of trust and that there was no evidence to suggest that those funds were applied for any illegal or immoral purposes or that the Trust was a namesake and some other activities were being carried out.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4451 OF 2021

COMMISSIONER OF INCOME

TAX (EXEMPTIONS), KOLKATA APPELLANT(S)

VERSUS

BATANAGAR EDUCATION

AND RESEARCH TRUST RESPONDENT(S)

J U D G M E N T

Uday Umesh Lalit, J.

1. This appeal challenges the judgment and order dated 09-10-2018

passed by the High Court at Calcutta in ITA No.116 of 2018 setting aside (i)

the order dated 25.02.2016 passed by Commissioner of Income Tax

(Exemption) (“CIT” for short) canceling registration of the respondent Trust

(“Trust”, for short) under Section 12AA of the Income Tax Act, 1961 (“the

Act” for short); and (ii) the order dated 13.09.2017 passed by the Income

Tax Appellate Tribunal (“the Tribunal”, for short) dismissing appeals arising

therefrom.

2. The Trust was registered under Section 12AA of the Act vide order

dated 06.08.2010 and was also accorded approval under Section 80G(vi) of

the Act.

3. In a survey conducted on an entity named School of Human Genetics

and Population Health, Kolkata under Section 133A of the Act, it was prima

facie observed that the Trust was not carrying out its activities in accordance

with the objects of the Trust. A show cause notice was, therefore, issued by

the CIT on 04.12.2015.

4. In answer to the questionnaire issued by the Department, Shri

Rabindranath Lahiri, Managing Trustee of the Trust gave answers to some of

the questions as under:

“Q.11. Please confirm the authenticity of the abovementioned

Corpus Donation.

Ans. A major part of the donations that were claimed exemption

u/s 11(1)(d) were not-genuine. The donation received in F.Ys.

2008-09, 2009-10 and 2010-11 were genuine Corpus Donation

received either from the Trustees or persons who were close to

the Trustees or persons who were close to the Trustees. In F.Y.

2011-12 and 2012-13 a part of the donation were genuine like

the earlier years. However, a major part of the donations

received in these two F.Ys. viz. 2011-12 and 2012-13, shown as

Corpus Donation, were in the nature of accommodation entries

to facilitate two thingsa) To procure loans from the Bank we had to show

substantial amount of Capital Reserve in our Balance Sheet.

b) We require funds for the expansion of our college.

The fees received from the students along with genuine

donations from the Trustees and their contacts were not

sufficient to run the institution.

Q.12. Why are you saying that a major part of the donations

received were not genuine?

Ans. In those cases, which I admit as accommodation entries, a

part of the donation received was returned back to the donors

through intermediaries.

Q. 13. Who were the intermediaries and what were the modes

of returning the money?

Ans. We were instructed to transfer funds through RTGS to the

following seven (7) persons:

1. Santwana Syndicate

2. P.C. Sales Corporation

3. Kalyani Enterprises

4. Riya Enterprises

5. Laxmi Narayan Traders

6. Hanuman Traders

7. Rani Sati Trade cum Pvt. Limited

These payments were booked as capital expenditure under the

head Building.

Q. 14. In response to the earlier question you have stated that

you were “instructed”. Who gave you the instruction?

Ans. I can remember only one name right now, that is Shri

Gulab Pincha, Mob No. 9831015157. He was the key person for

providing a large part of bogus donation received which was

immediately returned back to the different parties in the guise of

payments towards capital expenditure in building. We do now

know any details in respect of the donors on behalf of whom

Shri Gulab Pincha acted as a middle man. Shri Pincha provided

us with the details of the donors, cheque of the donations, letters

of corpus donations etc. He also provided us with the names and

bank a/c. details of the seven (7) persons, mentioned in Answer

13 to whom money has to be returned back through RTGS. He

also collected the money receipts/80G certifications on behalf of

the donors.

Q. 19. The ledger copy for the period from 01.04.2014 to

04.09.2014 in respect of “General Fund” of your trust having

details of the donors is being shown to you to identify the bogus

donations along with bogus donors.

Ans. After going through the list of the donors appeared in such

ledger it is understood that the Donors whose names are written

in capital letters under the sub-head “Donation-13”, “DonationI” and “Donations-II” having total amount of Rs.6,03,07,550/- is

bogus and out of which Rs.5,96,29,973/- was returned back

through RTGS to the above mentioned seven (7) persons

following the instructions of the mediators.”

5. On the basis of the material on record, the CIT came to the following

conclusions:

“6.1. The intention of the legislature to grant registration u/s

12AA and 80G, to give the benefit u/s 11 to encourage medical

relief to the poor and needy persons, promote education among

masses and support to the poor section of the society. But time

and again these provisions have been misused for personal need

and for benefit of trustees/members of the trusts and societies.

Survey u/s. 133A conducted in the case of assessee elaborates

the nature and volume of transactions in the alleged activities.

6.2. Looking at the volume and depth of the illegal activities

performed and indulged by the society to use the provisions of

the I.T. Act providing support and encouragement to the

organizations for doing the benevolent activities, assessee

society not only opened the pandora’s box defying the sole

benevolent purpose of provisions as per the I.T. Act, but also

challenged the cause of the constitutional provisions by

maintaining certain well-needed objectives as per the Act and

performing the reverse in reality.

6.3 Based on the facts and circumstantial evidences as discussed

in Para 1 to 5, it can be inferred: -

a) Assessee trust has received a sum of Rs.1,23,87,550/- as

bogus donation from M/s. School of Human Genetics &

Population Health and voluntarily offered as income. SHG &

PH has admitted their bogus transactions by filing application

before the Hon’ble Settlement Commission, Kolkata and

through confirmation filed.

b) They have received bogus corpus donation not only from

SGHG&PH but also from various parties in different years.

c) Society/Trust has grossly misused the provision of Section

12AA and 80G(5) (vi).

d) They have violated the objects of the trust as converting

cheque received through corpus donation in cash beyond-theobjects. The society was found to be involved in hawala

activities.

e) Corpus donation received is not voluntary, merely an

accommodation entry and fictitious.

f) Activities of the trust are not genuine as well as not being

carried out in accordance with its declared objects. Assessee’s

case is covered within the 60th limb of Section 12AA(3).

g) Even ingenuine and illegal activities carried on by assessee

through money laundering do not come within the conceptual

framework of charity vis-a-vis activity of general public utility

envisaged the Income Tax Act as laid down in Section 2(15).

The CIT, therefore, invoked the provisions of Section 12AA(3) of the

Act and cancelled the registration granted under Section 12AA of the Act

w.e.f. 01.04.2012. Consequently, the approval granted to the Trust under

Section 80G of the Act was also cancelled.

6. The matter was carried in appeal by the Trust by filing Income Tax

Appeal Nos.756 & 912 /Kol/2016 before the Tribunal.

After considering the entire material on record, the Tribunal concluded

as under:

“13. We have given a very careful consideration to the rival

submissions. It is clear from the statements of Secretary and

Treasurer of SHG and PH that they were accepting cash and

giving bogus donations. In the statement recorded in the survey

conducted in the case of SHG and PH on 27.1.2015, it was

explained that SHG&PH’s source of income was the money

received in the form of donations from corporate bodies as well

as from individuals. In the said statement it was explained that

there were about nine brokers who used to bring donations in the

form of cheque/RTGS to SHG and PH. The Donations received

would be returned by issue of cheque/RTGS in the name of

companies or organization specified by the nine brokers. SHG

and PH would receive 7 or 8% of the donations amount. It was

also stated in such statement since the assessee was entitled to

exemption u/s 80G and u/s 35 of the Act their organization was

chosen by the brokers for giving donations to SHG and PH as

well as for giving donations by SHG and PH. Till now the

Assessee’s name did not figure in the statement recorded on

27.1.2015. However, pursuant to the Survey in the case of SHG

& PH proceedings for cancellation of registration u/s 12A of the

Act granted to them were initiated. In such proceedings, Smt.

Samadrita Mukherjee Sardar (in a letter dated 24.8.2015) had

given a list of donations which were given by them after getting

cash of equivalent amount. It is not disputed that the name of the

assessee figures in the said list and the fact that SHG & PH to

the Assessee were against cash received from them in Financial

Year 2012-13 of a sum of Rs.1,23,87,550/-. Even at this stage

all admissions were by third parties and the same were not

binding on the Assessee. However, in a survey conducted in the

case of the Assessee on 24.8.2015, the Managing Trustee of the

Assessee admitted that it gave cash and got back donations. We

have already extracted the statement given by the Managing

Trustee. Even in the proceedings for cancellation of registration,

the Assessee has not taken any stand on all the evidence against

the Assessee. In such circumstances, we are of the view that the

conclusions drawn by the CIT(E) in the impugned order which

we have extracted in the earlier part of the order are correct and

calls for no interference. It is clear from the evidence on record

that the activities of the Assessee were not genuine and hence

their registration is liable to be cancelled u/s. 12AA(3) of the

Act, and was rightly cancelled by the CIT(E). We therefore,

uphold his orders and dismiss both the appeals by the Assessee.”

With this view, the appeals preferred by the Trust were dismissed.

7. The Trust being aggrieved, filed Income Tax Appeal No.116 of 2018

before the High Court. By its order dated 04.07.2018, following questions

were framed as substantial questions of law:

“(i) Whether the Tribunal and the Commissioner of Income Tax

(Exemptions) were right in law in directing the cancellation of

registration of the Appellant granted under Section 12AA to the

Appellant Trust on the ground that the Trust had received bogus

donation from School of Human Genetics and Population

Health?

(ii) Whether statement recorded in the course of survey under

Section 133A of the Act has any probative or evidentiary value?

8. It was submitted on behalf of Trust that it had received donations from

various donors and the Trust was under no obligation to verify the source of

the funds of the donor or whether those funds were acquired by performance

of any unlawful activity. It was further submitted that the funds were applied

for the purposes of trust and that there was no evidence to suggest that those

funds were applied for any illegal or immoral purposes or that the Trust was a

namesake and some other activities were being carried out.

9. After considering rival submissions, the High Court allowed the appeal

with following observations:

“On the basis of the evidence and the authorities cited before the

adjudicating bodies below, we say that the respondent revenue

has not been able to establish the case so as to warrant

cancellation of the registration of the appellant trust under

Section 12AA(3) of the Act. The respondent also has not been

able to prove any complicity of the appellant trust in any illegal,

immoral or irregular activity of the donors.

In that view of the matter, we answer the question (i) in the

order dated 4th July 2018 in the negative and in favour of the

assessee. We have not found it necessary to go into the issue

raised in question (ii).

The order of cancellation of the registration of the trust is

set aside. The respondent is directed to restore its registration

within three weeks of communication of this order. However,

this will not bar any action against the appellant in respect of

any future activities.

The appeal is hereby allowed to the extent above.”

10. In this appeal, we have heard Mr. N. Venkataraman, learned ASG in

support of the appeal and Mr. Rana Mukherjee, learned Senior Advocate for

the Trust.

It is submitted by the learned ASG that the answers given to the

questionnaire clearly show a definite tendency on part of the Trust to return

in cash, the donation it received from several entities.

Mr. Mukherjee, learned Senior Advocate appearing for the Trust

submitted that the conclusions drawn by the High Court were quite correct

and did not call for any interference.

11. The answers given to the questionnaire by the Managing Trustee of the

Trust show the extent of misuse of the status enjoyed by the Trust by virtue

of registration under Section 12AA of the Act.

These answers also show that donations were received by way of

cheques out of which substantial money was ploughed back or returned to the

donors in cash. The facts thus clearly show that those were bogus donations

and that the registration conferred upon it under Sections 12AA and 80G of

the Act was completely being misused by the Trust. An entity which is

misusing the status conferred upon it by Section 12AA of the Act is not

entitled to retain and enjoy said status. The authorities were therefore, right

and justified in cancelling the registration under Sections 12AA and 80G of

the Act.

12 The High Court completely erred in entertaining the appeal under

Section 260A of the Act. It did not even attempt to deal with the answers to

the questions as aforesaid and whether the conclusions drawn by the CIT and

the Tribunal were in any way incorrect or invalid.

In our view, this appeal, therefore, deserves to be allowed.

13. Setting aside the judgment and order presently under challenge, we

allow this appeal and restore the order passed by the CIT and the Tribunal.

No costs.

…………..........................J.

(UDAY UMESH LALIT)

………….........................J.

(AJAY RASTOGI)

NEW DELHI,

AUGUST 02, 2021.

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