LAW FOR ALL : May 2011

Tuesday, May 31, 2011

the requirement under Section 50 of the NDPS Act is not complied with by merely informing the accused of his option to be searched either in the presence of a gazetted officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazetted officer or the Magistrate and in Para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate. That being the law laid down by the Constitution Bench of this Court on interpretation of Section 50 of the NDPS Act, we do not think that the obligation under Section 50 of the Act has been discharged statutorily by the appellant in this case

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1079 OF 2002

NARCOTICS CENTRAL BUREAU ... Appellant

VERSUS

SUKH DEV RAJ SODHI ... Respondent

J U D G M E N T

GANGULY, J.

Heard learned counsel for the appellant. Despite

notice, none appears for the respondent.

This is an appeal by the Narcotics Central Bureau

impugning judgment and order dated 11.01.2002 passed by the

High Court whereby the High Court, on consideration of the

facts and the legal position of the case, was pleased to

hold that the mandatory provision of Section 50 of the

Narcotic Drugs and Psychotropic Substances Act, 1985

(hereinafter referred to as 'NDPS Act') has not been

complied with and the violation of the said Act has vitiated

the conviction and on that ground, the High Court was

pleased to set aside the conviction and did not examine any

other fact of the case. In this appeal also, we do not go

into other factual aspects.

...2.

CRIMINAL APPEAL NO. 1079 OF 2002
.2.

It is not in dispute that pursuant to the High

Court's order, the respondent is set at liberty.

Now, the learned counsel for the appellant

submits that in the instant case, from the search notice (at

Annexure P-1), it will appear that the requirement of

Section 50 of the NDPS Act has been complied with. From the

said notice, it appears that the accused was informed that

he has the option of being searched either in the presence

of gazetted officer or Magistrate and it appears that the

accused wanted to be searched in the presence of gazetted

officer. The learned counsel for the appellant submits that

by giving the option to the accused, the appellant has

complied with the requirement under Section 50 of the NDPS

Act.

The obligation of the authorities under

Section 50 of the NDPS Act has come up for consideration

before this Court in several cases and recently, the

Constitution Bench of this Court in the case of Vijaysinh

Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609] has

settled this controversy. The Constitution Bench has held

that requirement of Section 50 of the NDPS Act is a

mandatory requirement and the provision of Section 50 must

be very strictly construed.

...3.

CRIMINAL APPEAL NO. 1079 OF 2002
.3.

From the perusal of the conclusion arrived at

by this Court in Vijaysinh Chandubha Jadeja's case, it

appears that the requirement under Section 50 of the NDPS

Act is not complied with by merely informing the accused of

his option to be searched either in the presence of a

gazetted officer or before a Magistrate. The requirement

continues even after that and it is required that the

accused person is actually brought before the gazetted

officer or the Magistrate and in Para 32, the Constitution

Bench made it clear that in order to impart authenticity,

transparency and creditworthiness to the entire proceedings,

an endeavour should be made by the prosecuting agency to

produce the suspect before the nearest Magistrate.

That being the law laid down by the

Constitution Bench of this Court on interpretation of

Section 50 of the NDPS Act, we do not think that the

obligation under Section 50 of the Act has been discharged

statutorily by the appellant in this case. We, therefore,

find no reason to interfere with the finding made by the

High court. The appeal is, accordingly, dismissed.

................., J.
[ASOK KUMAR GANGULY]

................., J.
[DEEPAK VERMA]
NEW DELHI;
MAY 20, 2011.

the FIR has been recorded in clear violation of the provisions contained under Section 20(A)(1) of the said Act, as a result whereof, the entire proceeding subsequent thereto has been vitiated and this has also vitiated the judgment and order of the designated court.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s). 2307 OF 2009

RANGKU DUTTA @ RANJAN KUMAR DUTTA Appellant (s)

VERSUS

STATE OF ASSAM Respondent(s)

J U D G M E N T

Ganguly, J.

Heard learned counsel for the parties.

This is a statutory appeal under Section 19 of Terrorist

and Disruptive Activities (Prevention) Act, 1987 (hereinafter

referred to as "the said Act") impugning an order dated

10.9.2009 passed by the Designated Court TADA. The learned

counsel appearing for the sole appellant has impugned the

judgment of the designated court (TADA) on various grounds but

at the time of arguments, he made emphasis on a particular

ground, namely, that in the instant case, the FIR has been

recorded in clear violation of the provisions contained under

Section 20(A)(1) of the said Act, as a result whereof, the

entire proceeding subsequent thereto has been vitiated and this

has also vitiated the judgment and order of the designated

court.

The material facts of the facts are these.

-2-

That FIR was lodged on 6.11.1993 by one Ajit Kumar Sarma,

Office-in-Charge of Bihpuria Police Station against several

persons including the appellant. Of the four accused persons,

no charges were framed against Moni Pathak. In so far as Bhaben

Gogoi @ Bikram was concerned, he was acquitted by the designated

court and Indreswar Hazarika @ Babul Handique died during the

pendency of the proceedings before the designated court. Only

Rangku Dutta @ Ranjan Kumar Dutta was convicted and is the

appellant before us.

The FIR which has been lodged on 6.11.1993 runs as

follows:-

"I beg to report that on 5.11.93 at 2150 hrs.
while SI AQM Zahingir I/C Dholpur O.P. along with the
PSO Hav. Loknath Konwar and other police personnel
were informed law and order duty in connection with
Debraj Theatre show at Dhalpur circle in open place by
the side of Hill, some ULFA extremist fired at SI AQM
Zahingir and PSO Hav. Loknath under simultaneously
from a close range behind them and as a result both of
them succumbed to injuries.

Earlier of this incident on 5.10.93 an
encounter took place between the ULFA with Dhalpur
O.P. Place and under the leadership of SI AQM Zahangir
I/C Dhalpur O.P. where Lakhimpur Dist. ULFA commander
Jogen Gogoi killed and since them the banned ULFA
activists associates of Jogen Gogoi were planning with
criminals conspiracy to liquidate SI AQM Zahingir.

On 5.11.93 evening the said ULFA activists with
the help of Sri ranku Dutta got identified SI AQM
Zahingir and then ULFA extremist namely (1) Sri
Indreswar Hazarika @ Babul Handique (2) Sri Nobel
Gogoi @ Bikram under the leadership of Sri Moni Pathak
@ Debo Pathak taking advantage of darkness attacks
simultaneously with fire arms and killed SI AQM
Zahingir and PSO Hav. Loknath Knowar.

-3-

So I request to register a case under Section
120(B)/302 IPC R/W 3/4/5 TADA(P) Act, 1987 against the
(illegible) ULFA activist and four others associates,
I have already taken up the investigation of the case."

On the basis of the FIR, a case being Bihpuria Police

Station Case No. 497 of 1993, was initiated under Section

120B/302 IPC read with Section 3 / 4 and 5 TADA (P) Act and the

designated court vide order dated 31st October, 2002 framed

charges against the appellant, inter alia, under Section

120(B)/302 of the Indian Penal Code and Section 3(2)(1) of the

said Act. Thereafter, the designated court by impugned judgment

dated 10th September, 2009 passed in TADA Sessions Case No. 116

of 2000 found the appellant guilty of offences punishable under

Section 120B/302 IPC read with Section 3(2)(1) of the said Act

and sentenced him to undergo imprisonment for life and to pay a

fine of Rs. 2000/-, in default further imprisonment for two

months.

Learned counsel appearing for the appellant urged that in

accordance with the provisions contained under Section 20(A)(1)

of the said Act, no information about the commission of any

offence under the said Act shall be recorded by the Police

without prior approval of the District Superintendent of Police.

Learned Counsel submitted that the said provision under

Section 20(A)(1) was incorporated by way of an amendment vide

Section 9 of Act 43 of 1993. The said amendment came into

effect on 23.5.1993 and the FIR was recorded on 6.11.1993.

-4-

Therefore, at the time when the FIR was recorded, the provision

of Section 20(A)(1) was clearly attracted.

It will be in the fitness of things that to appreciate

the points urged by the appellant, Section 20(A) is set out

below:

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

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

Relying on the said section, the learned Counsel for the

appellant submitted that from the evidence of PW 15 Ajit Kumar

Sarma who recorded the FIR, it is clear that he did not take the

approval of the Superintendent of Police before recording the

FIR. In his cross-examination, PW 15 clearly stated "I did not

obtain the approval from the concerned SP for registering the

case." From the evidence of PW 11, who is one Sanjit Sekhar

Roy, learned counsel stated that the said PW 11 was working on

22.6.2000 as DSP Headquarter at North Lakhimpur. In his cross-

examination, he stated that the occurrence took place on

6.11.1993 and prior to the filing of the Ejahar which is the

FIR, the written approval of the SP concerned was not obtained

and in the Ejahar itself, There is no approval of SP, North

Lakhimpur.

-5-

We have looked into the original FIR Exhibit P-12. In

the original FIR, the following endorsement which has been made

by Ajit Kumar Sarma is quoted below:-

"Received and registered Bihpuria PS Case
no. 0497/93 u/s 120(B)/302 I.P.C. R/W 3/4/5 TADA (P)
Act, 1987 with the approval of SP(I) NL."

It is an admitted position in this case that even though

the aforesaid endorsement has been made in the FIR, the SP(I),

North Lakhimpur, whose approval is alleged to have been taken by

PW 15 Ajit Kumar Sarma has not been examined by the prosecution.

Apart from that, in the substantive evidence before the Court,

PW 15, Ajit Kumar Sarma has categorically stated that he has not

obtained approval of SP before registering the case. He rather

said that he registered the case and himself took up the

investigation of the case, prepared the seizure list and

recorded the statement of witnesses and at that point of time,

the rank of Ajit Kumar Sarma was that of SI of police.

We have already referred to the evidence of PW 11 who has

also deposed that written approval of SP was not obtained.

In the background of these facts, the question is whether

in this case the mandatory requirement of Section 20(A)(1) was

complied with. Attention of this Court has been drawn to

certain decisions of the Court where from it appears that there

was a controversy and divergence of judicial view as to whether

-6-

written approval or oral approval is required. The said

divergence of judicial view has been set at rest by the judgment

of a three-Judge Bench of this Court in State of A.P. Vs. A.

Satyanarayana and Others 2001(10) SCC 597.

A Three-Judge Bench of this Court setting out the

controversy in this matter ultimately came to hold as follows in

paragraph 8:-

"Having applied our mind to the aforesaid two
judgments of this Court, we are in approval of the
latter judgment and we hold that it is not the
requirement under Section 20-A(1) to have the prior

approval only in writing. Prior approval is a
condition precedent for registering a case, but it may
be either in writing or oral also, as has been
observed by this Court in Kalpanath Rai case 1997(8)
SCC 732 and, therefore, in the case in hand, the
learned Designated Judge was wholly in error in
refusing to register the case under Sections 4 and 5
of TADA. We, therefore, set aside the impugned order
of the learned Designated Judge and direct that the
matter should be proceeded with in accordance with
law."

It is, therefore, clear that approval has to be taken,

even if it is an oral approval. Attention of this Court has

also been drawn to a decision rendered in Hitendra Vishnu Thakur

and Others Vs. State of Maharashtra and Others 1994(4)SCC 602 as

to the requirement of the provision of Section 20(A)(1). The

learned Judges of this Court after considering various

provisions of the said Act held that the requirement of Section

20(A)(1) of TADA was introduced by way of an amendment with a

view to prevent abuse of the provisions of TADA. We, therefore,

reiterate the principles laid down by this Court in paragraph 12

by Justice Dr. A.S. Anand(as His Lordship then was), which is

set out below:-

-7-

"Of late, we have come across some cases where
the Designated Courts have charge-sheeted and/or
convicted an accused person under TADA even though
there is not even an iota of evidence from which it
could be inferred, even prima facie, let alone
conclusively, that the crime was committed with the
intention as contemplated by the provisions of TADA,
merely on the statement of the investigating agency to
the effect that the consequence of the criminal act
resulted in causing panic or terror in the society or
in a section thereof. Such orders result in the
misuse of TADA Parliament, through Section 20-A of

TADA has clearly manifested its intention to treat the
offences under TADA seriously inasmuch as under
Section 20-A(1), notwithstanding anything contained in
the Code of Criminal Procedure, no information about
the commission of an offence under TADA shall even be
recorded without the prior approval of the District
Superintendent of Police and under Section 20-A(2), no
court shall take congisance of any offence under TADA
without the previous sanction of the authorities
prescribed therein. Section 20-A was thus introduced
in the Act with a view to prevent the abuse of the
provisions of TADA."

Learned counsel appearing on behalf of the State wanted

to urge that in the instant case, the requirement of Section

20(A)(1) has been complied with and in support of her

submissions, the learned counsel has drawn the attention of this

Court to the evidence of PW 4 and PW 6. In his evidence, PW 4

Nitul Gogoi has said that on 21.10.94 he was working as D.S.P.

H.Q. at Lakhimpur. On that day, the S.P. Lakhimpur handed over

the CD of this case to him to hold "remaining part of

investigation of the case."

PW 6 Nirmal Dr. Das also deposed that on 25.9.99, he was

working as Head Quarter DSP at North Lakhimpur. On that day,

S.P. Lakhimpur entrusted the investigation of the case in his

name and accordingly, he got the CD from R.S.I.

-8-

Relying on the aforesaid deposition of PW 4 and PW 6, the

learned counsel urged that in the instant case, the

investigation was conducted by the DSP, therefore, the

requirement of section 20(A)(1) has been complied with. We are

unable to appreciate the aforesaid submission.

It is obvious that Section 20(A)(1) is a mandatory

requirement of law. First, it starts with an overriding clause

and, thereafter, to emphasise its mandatory nature, it uses the

expression "No" after the overriding clause. Whenever the

intent of a statute is mandatory, it is clothed with a negative

command. Reference in this connection can be made to G.P.

Singh's Principles of Statutory Interpretation, 12th Edition. At

page 404, the learned author has stated:

"As stated by CRAWFORD: "Prohibitive or
negative words can rarely, if ever, be directory. And
this is so even though the statute provides no penalty
for disobedience. As observed by SUBBARAO, J.:
"Negative words are clearly prohibitory and are
ordinarily used as a legislative device to make a
statute imperative". Section 80 and Section 87-B of
the Code of Civil Procedure, 1908, section 77 of the
Railways Act, 1890; section 15 of the Bombay Rent Act,
1947; section 213 of the Succession Act, 1925; section
5-A of the Prevention of Corruption Act, 1947; section
7 of the Stamp Act, 1899; section 108 of the Companies
Act, 1956; section 20(1) of the Prevention of Food
Adulteration Act, 1954; section 55 of the Wild Life
Protection Act, 1972, the proviso to section 33(2)(b)
of the Industrial Disputes Act, 1947 (as amended in
1956); section 10A of Medical Council Act, 1956 (as
amended in 1993), and similar other provisions have
therefore, been construed as mandatory. A provision
requiring 'not les than three months' notice is also
for the same reason mandatory."

-9-

We are in respectful agreement with the aforesaid

statement of law by the learned author.

So there can be no doubt about the mandatory nature of

the requirement of this Section. Apart from that, since the

said section has been amended in order to prevent the abuse of

the provisions of TADA, this Court while examining the question

of complying with the said provision must examine it strictly.

Going by the aforesaid principles, this Court finds that

no information about the commission of an offence under the said

Act can be recorded by the Police without the prior approval of

the District Superintendent of Police. Therefore, the

requirement of prior approval must be satisfied at the time of

recording the information. If a subsequent investigation is

carried on without a proper recording of the information by the

DSP in terms of Section 20(A)(1), that does not cure the

inherent defect of recording the information without the prior

approval of the District Superintendent of Police. Whether the

Deputy Superintendent of Police is a District Superintendent of

Police or not is a different question which we need not decide

in this case. But one thing is clear that the requirement of

approval must be made at the initial stage of recording the

information. If there is absence of approval at the stage of

recording the information, the same cannot be cured by

subsequent carrying on of the investigation by the DSP.

Reference in this connection is made to the principles laid down

-10-

by Lord Denning speaking for the Judicial Committee of Privy

Council in Benjamin Leonard MacFoy Versus United Africa Co. Ltd.

[1961(3) Weekly Law Reports 1405]. Lord Denning, speaking for

the unanimous Bench, pointed out the effect of an act which is

void so succintly that I better quote him:

"If an act is void, then it is in law a
nullity. It is not only bad, but incurably bad.
There is no need for an order of the court to set it
aside. It is automatically null and void without more
ado, though it is sometimes convenient to have the
court declare it to be so. And every proceeding which
is founded on it is also bad and incurably bad. You
cannot put something on nothing and expect it to stay
there. It will collapse."

We are in respectful agreement with the aforesaid view.

Therefore, the evidence of PW 4 and PW 6 do not come to

any aid of the State Counsel in the facts of the present case.

We are, however, surprised to find that the Designated

Court in the impugned judgment has come to a finding that there

has been verbal approval from the Superintendent of Police even

after noting that the I.O. In this case (PW 15) admitted that he

did not obtain approval. It is nobody's case that PW 15 was

confronted with the FIR while he was giving his evidence.

Therefore, the prosecution in this case has failed to bring on

record that verbal approval was obtained. It may be noted that

PW 15 has not been declared hostile.

-11-

Therefore, having regard to the clear evidence of PW 15,

this Court is constrained to hold that even verbal approval of

the concerned authority was not obtained in the case before

recording the information.

Therefore, the entire proceeding right from the

reigstering of the FIR, filing of the charge-sheet and the

subsequent trial is vitiated by a legal infirmity and there is a

total miscarriage of justice in holding the trial, ignoring the

vital requirement of law. We have, therefore, no hesitation in

setting aside the impugned judgment of the Designated Court.

The appeal is, therefore, allowed. The appellant who is

in jail must be set at liberty forthwith, if not required in

connection with any other case.

..........................J.
(ASOK KUMAR GANGULY)

.........................J.
(DEEPAK VERMA)

NEW DELHI
MAY 20, 2011

Sunday, May 15, 2011

The appellants are policemen accused of a contract killing in Sessions Case No. 317/2010 which is pending before the Sessions Judge, Greater Bombay. The appellants have been charge-sheeted for offences punishable under Sections 302/34,120-B, 364/34 IPC and other minor offences. The victim of the offence is deceased Ramnaryan Gupta @ Lakhanbhaiyya. The prosecution case is that the appellants were engaged as contract killers by a private person to eliminate the deceased.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1174-1178_OF 2011

[Arising out of SLP((Criminal) Nos. 3865-69 of 2011]

Prakash Kadam & etc. etc. .. Appellants

-versus-

Ramprasad Vishwanath Gupta & Anr. .. Respondents

J U D G M E N T

Markandey Katju, J.

A curse shall light upon the limbs of men;

Domestic fury and fierce civil strife

Shall cumber all the parts of Italy;

Blood and destruction shall be so in use

And dreadful objects so familiar

That mothers shall but smile when they behold

Their infants quarter'd with the hands of war;

All pity choked with custom of fell deeds:

And Caesar's spirit, ranging for revenge,

With Ate by his side come hot from hell,

Shall in these confines with a monarch's voice

Cry "Havoc!" and let slip the dogs of war;

That this foul deed shall smell above the earth

With carrion mean, groaning for burial.

-- (Shakespeare: Julius Caesar Act 3 Scene 1)

2

1. Leave granted. Heard learned counsel for the appellants and perused

the record.

2. This case reveals to what grisly depths our society has descended.

3. This appeal has been filed against the impugned judgment and order

dated 21.1.2011 passed by the High Court of Judicaure at Bombay in

Criminal Application Nos. 5283-5285 and 5303-5304 of 2010 by which the

High Court has cancelled the bail granted to the appellants by the Sessions

Court.

4. The appellants are policemen accused of a contract killing in Sessions

Case No. 317/2010 which is pending before the Sessions Judge, Greater

Bombay. The appellants have been charge-sheeted for offences punishable

under Sections 302/34,120-B, 364/34 IPC and other minor offences. The

victim of the offence is deceased Ramnaryan Gupta @ Lakhanbhaiyya. The

prosecution case is that the appellants were engaged as contract killers by a

private person to eliminate the deceased.

5. The case of the prosecution in brief is that the deceased Ramnarayan

Gupta and the accused No. 14, Janardan Bhange were, once upon a time,

3

very close to each other. Both of them had been working as estate agents

and, mainly their business was to purchase land from the farmers whose land

has been acquired by the Government under the Land Acquisition Act and to

whom 12 percent of the land was given by the Government. This 12 percent

of the land was being purchased at meager price by the deceased and

accused No. 14, Janardan Bhange and was being sold on premium at later

stage. During the course of that business, both of them had been exchanging

the files pending with them for disposal pertaining to the said land.

6. There were some differences between the deceased Ramnarayan

Gupta and accused No. 14, Janardan and hence it is alleged that the accused

Janardan decided to eliminate the deceased in a false police encounter.

Hence, he hired the services of the accused, and in pursuance of the said

conspiracy the deceased Ramnarayan Gupta and his friend Anil Bheda were

abducted on 11.11.2006 from near a shop named Trisha Collections at

Vashi, New Bombay by 4 or 5 well-built persons who appeared to be

policemen and were forcibly bundled into a Qualis car. The complainant,

brother of the deceased, sent telegrams and fax messages to different

authorities complaining that the said two persons had been abducted by

some persons who appeared to be policemen and were in danger of losing

their lives.

4

7. It is alleged that at Bhandup Complex the deceased was shifted to an

Innova vehicle. The deceased and witness Anil Bheda were taken to D.N.

Nagar police station in two separate vehicles i.e. one Qualis and the other

Innova. It is alleged that the deceased was killed and his dead body was

thrown near Nana-Nani Park at Versova. The dead body, after some time,

was collected from the said place by the police to create a false case of

police encounter. A case vide C.R. No. 302/2006 was registered on

11.11.2006 at Versova Police Station against deceased Ramnarayan Gupta

on the complaint made by accused No. 9. In the said FIR it was shown that

accused No. 9 and other police officers had gone to Nana-Nani Park on the

basis of certain information and that the deceased was asked to surrender

before the police. Instead of surrendering before the police, the deceased

had attempted to kill the police and in retaliation he was shot by them.

8. It is also alleged that witness Anil Bheda was initially detained at

D.N. Nagar Police Station and thereafter he was taken to Kolhapur and he

was further detained at Mid Town Hotel at Andheri. As such the witness

Anil Bheda was in custody of the police for about one month from

11.11.2006. His wife had lodged a missing complaint at Vashi police station

on the same day, but she was compelled to withdraw that complaint.

5

9. The complainant is the brother of the deceased and is a practicing

advocate. He came to know within a few minutes of the incident of

abduction of his brother. He, therefore, along with advocate Mr. Ganesh

Ayyer, started searching for his brother and in the meantime he had also sent

telegrams to Police Commissioner of Thane, Mumbai and New Bombay of

the alleged abduction of his brother and indicated apprehension that his

brother would be eliminated in a false police encounter. On the same day it

was flashed on T.V. channels that the deceased had been killed in a police

encounter. The complainant, therefore, approached the High Court on

15.11.2006 by filing a writ petition (WP 2473/2006) to get directions from

the High Court to the police to register a case in respect of death of his

brother.

10. On the aforesaid writ petition the High Court on 13.2.2008 passed an

order that the offence of murder be registered against the accused. During

the investigation the statement of Anil Bheda and other witnesses were

recorded. So far, the police have charge-sheeted 19 accused.

11. After the High Court by its order dated 13.2.2008 had directed the

Metropolitan Magistrate, Railway Mobile Court, Andheri to make an inquiry

6

under Section 176(1A) Cr.P.C., the Metropolitan Magistrate after holding

the inquiry submitted a report dated 11.8.2008 that Ramnarayan Gupta was

shot by the police when he was in police custody. The report also stated that

the death had not taken place at the spot alleged by the police, and that the

deceased had not disappeared from the police custody before he was done to

death, but that the deceased was abducted by the police. The report also

held that a false FIR was lodged by accused No. 9 Police Inspector Pradip

Suryavanshi of D.N. Nagar Police Sttion to show that Ramnarayan Gupta

was killed in a police encounter at Nana-Nani Park, and this FIR was filed to

cover up the murder of the deceased Ramnarayan Gupta.

12. After the inquiry report was submitted by the Metropolitan

Magistrate, the Division Bench of the Bombay High Court by its order dated

13.8.2009 in the aforesaid criminal writ petition constituted a Special

Investigation Team for investigation of this case. Mr. K.M.M. Prasanna,

DCP, Mumbai City, was appointed as head of the investigation team, and he

was directed to record the statement of the complainant and to treat that

statement as the FIR. Copy of the order of the Bombay High Court dated

13.8.2009 is Annexure P-3 to this appeal. Accordingly, the statement of the

complainant was recorded on 20.8.2009 which was treated as the FIR

(Annexure P4 to this appeal) and investigation was carried out. The

7

statement and supplementary statement of Anil Bheda, which corroborates

the prosecution case, is Annexure P5 to this appeal.

13. During investigation, it was revealed that accused No.1 Police

Inspector Pradip Sharma (who is described as an `encounter specialist'),

accused No.9 - PI Pradip Suryawanshi and accused No. 14 - Janardan

Bhanage, had entered into a conspiracy to eliminate Ramnarayan Gupta. It

appears that accused No.14 Janardan Bhanage had some personal enmity

with Ramnarayan Gupta. Thereafter other officers and some criminals were

involved in the execution of the said conspiracy. Accused No.4 - Shailendra

Pande , accused No.5 - Hitesh Solanki, accused N0.6 - Akil Khan, accused

No.8 - Manoj Mohan Raj, accused No.12 - Mohd. Moiddin and accused

No.21 - Suresh Shetty and accused No.7 police constable Vinayak Shinde

had abducted Ramnarayan Gupta and Anil Bheda from Vashi, on

11.11.2006. Accused No.1 PI Pradip Sharma, accused No.2 Police

Constable Tanaji Desai, accused No.9 P.I. Pradip Suryavanshi, accused

No.15 API - Dilip Palande were the persons who actually fired and shot

dead the deceased. Accused No.11 API Nitin Satape and accused no.22 PSI

Arvind Sarvankar claimed to have fired during the encounter, though the

bullets fired from their fire arms were not recovered. Accused Nos. 13,16,

17, 18 and 19, whose bail orders were cancelled by the High Court, are said

8

to be the members of the team which shot him dead. Accused No.13

Devidas Sakpal had allegedly guarded Anil Bheda at Hotel Mid Town on

certain occasions and accused No.16 Head Constable Prakash Kadam had

joined the abductors at about 4.30 p.m. and since then he was with Anil

Bheda. He was also with Anil Bheda when he was taken out from

D.N.Nagar Police Station in the evening and also later on at Hotel Mid

Town from time to time.

14. On behalf of the prosecution, it is pointed out that in the FIR lodged

by P.I. Pradip Suryavanshi showing the killing of Ramnarayan Gupta in an

encounter at Nana-Nani Park, he had given names of police officers and

police staff, who were in that team. The names of accused Nos.13,16, 17, 18

and 19 are shown in the said FIR. On that basis an entry was made in the

station diary, where also the names of these persons were shown. It is also

pointed out that in the magisterial enquiry, which was initially directed by

the Police Commissioner, these persons had claimed to be members of the

encounter team. When the complainant filed the Writ Petition against the

State for taking action against the culprits, some of these persons had

appeared to contest the writ petition. After the writ petition was allowed and

this Court directed investigation, accused Nos. 13, 16, 19 and 20 filed

Special Leave Petition challenging that order, which was dismissed.

9

Everywhere they had taken the plea that Ramnarayan Gupta was shot dead

in an encounter and that they were members of the Police team involved in

that encounter and were also present at the time of the alleged encounter.

The learned Counsel also pointed out that there is sufficient material to show

that these persons were involved in the commission of the crime.

15. The Sessions Court granted bail to the appellants but that has been

cancelled by the High Court by the impugned judgment.

16. It was contended by learned counsel for the appellants before us, and

it was also contended before the High Court, that the considerations for

cancellation of bail is different from the consideration of grant of bail vide

Bhagirathsinh s/o Mahipat Singh Judeja vs. State of Gujarat (1984) 1

SCC 284, Dolat Ram and others vs. State of Haryana (1995) 1 SCC 349

and Ramcharan vs. Sta
te of M.P. (2004) 13 SCC 617.

17. However, we are of the opinion that that is not an absolute rule, and it

will depend on the facts and circumstances of the case. In considering

whether to cancel the bail the Court has also to consider the gravity and

nature of the offence, prima facie case against the accused, the position and

standing of the accused, etc. If there are very serious allegations against the

10

accused his bail may be cancelled even if he has not misused the bail granted

to him. Moreover, the above principle applies when the same Court which

granted bail is approached for canceling the bail. It will not apply when the

order granting bail is appealed against before an appellate/revisional Court.

18. In our opinion, there is no absolute rule that once bail is granted to the

accused then it can only be cancelled if there is likelihood of misuse of the

bail. That factor, though no doubt important, is not the only factor. There

are several other factors also which may be seen while deciding to cancel the

bail.

19. This is a very serious case and cannot be treated like an ordinary case.

The accused who are policemen are supposed to uphold the law, but the

allegation against them is that they functioned as contract killers. Their

version that Ramnarayan Gupta was shot in a police encounter has been

found to be false during the investigation. It is true that we are not deciding

the case finally as that will be done by the trial court where the case is

pending, but we can certainly examine the material on record in deciding

whether there is a prima facie case against the accused which disentitles

them to bail.

11

20. Accused No. 11 API Nitin Sartape, accused No.17 PSI Ganesh

Harpude, and accused No.19 PSI Pandurang Kokam, who were attached to

Versova Police Station, as per the station diary entry 33 of Versova Police

Station left Versova Police Station to go to D.N.Nagar Police Station on a

special assignment. That entry No.33 was taken in the station diary of

Versova Police Station at 18.05 hours. Entry No.25 in the station diary of

D.N.Nagar Police Station at 18.55 hrs. shows that Police Inspector

Suryavanshi, API Dilip Palande (accused No.15), PSI Arvind Sarvankar

(accused No.22), PSI Patade (accused No.18) and API Sartape (accused

No.11), PSI Harpude (accused No.17) and Police Constable Batch No.26645

i.e. Pandurang Kokam (accused No.19) left the Police Station to go near

Nani Nani Park to verify and to arrest a hardened criminal. It appears that 3

police officers i.e. AP Sartape, PSI Harpude and Constable Pandurang

Kokam were specially called from the Versova Police Station and they were

in the team of the police officers and staff who accompanied PI Suryavanshi.

This team left the police station at 18.55 hrs. as per the said entry and it

appears that at about 8 to 8.15 p.m. Ramnarayan was shot dead. At this

stage, the defence of the accused need not be taken into consideration,

because during the investigation, it has been found that there was no

encounter and Ramnarayan Gupta was shot dead in a fake encounter. This

12

station diary No.25 of 18.55 hrs. goes to show that accused No.17 PSI

Hapude, accused No.18 PSI Patade and accused No.19 Constable Pandurang

Kokam were the members of the team which killed Ramnarayan. Not only

this, as per the record of D.N.Nagar Police station, on 11.11.2006, at 6 p.m.

Police Inspector Suryavanshi, API Sartape and PSI Anand Patade had

collected weapons and ammunition. Naturally, those weapons were collected

by the said officers to go to some place for a mission. According to them,

they went to at Nana Nani Park where Ramnarayan Gupta was killed. In

view of this, the presence of PSI Patade in the team which executed the said

plan and killed Ramnarayan does not appear to be in doubt. Merely because

accused No.18 PSI Patade himself did not fire is not sufficient. Accused

Nos. 17 Ganesh Harpude and accused No.19 Pandurang Kokam, as pointed

out above, were also members of that team. It is also material to note that

these accused persons had consistently taken a stand that they were present

at the time of the said encounter and this is clear from their stand taken

before the High Court as well as before the Supreme Court in Special Leave

Petition filed by the accused Nos. 13, 16, 19 and 21. In that SLP also they

had stated that accused Nos. 17 and 18 were also in the encounter team.

Hence there is a prima facie case against them.

13

21. As far as accused Nos. 16, 17, 18 and 19 are concerned, there is

sufficient material to prima facie establish their role in this conspiracy and

the alleged execution of Ramnarayan Gupta. Accused No.13 was allegedly

given duty of guarding Anil Bheda at Hotel Mid Town where he was being

detained illegally. It is contended by the learned Counsel for the accused that

if any duty of guarding or surveillance is given to a Police Constable by his

superiors, he is bound to discharge that duty and merely because he was

given the guarding duty, it cannot be said that he was party to the

conspiracy. However, it cannot be forgotten that accused No.13 was one of

the petitioners before the Supreme Court and had claimed that he was a

member of the encounter team along with PI Suryavanshi and others, and

this admission finds corroboration from the contents of the FIR registered by

PI Suryavanshi himself.

22. In fact, the prosecution material collected during the investigation

prima facie indicates that Ramnarayan Gupta was abducted during the day

time and was taken to D.N.Nagar Police Station and from there he was taken

to some unknown place where he was shot dead. At 9 p.m. some police

officers came back to the police station and deposited their weapons and

kept their blood stained clothes.

14

23. In our opinion this is a very serious case wherein prima facie some

police officers and staff were engaged by some private persons to kill their

opponent i.e. Ramnarayan Gupta and the police officers and the staff acted

as contract killers for them. If such police officers and staff can be engaged

as contract killers to finish some person, there may be very strong

apprehension in the mind of the witnesses about their own safety. If the

police officers and staff could kill a person at the behest of a third person, it

cannot be ruled out that they may kill the important witnesses or their

relatives or give threats to them at the time of trial of the case to save

themselves. This aspect has been completely ignored by the learned Sessions

Judge while granting bail to the accused persons.

24. In our opinion, the High Court was perfectly justified in canceling the

bail to the accused-appellants. The accused/appellants are police personnel

and it was their duty to uphold the law, but far from performing their duty,

they appear to have operated as criminals. Thus, the protectors have become

the predators. As the Bible says "If the salt has lost its flavour, wherewith

shall it be salted?", or as the ancient Romans used to say,"Who will guard

the Praetorian guards?" (see in this connection the judgment of this Court in

CBI vs. Kishore Singh, Criminal Appeal Nos.2047-2049 decided on

25.10.2010).

15

25. We are of the view that in cases where a fake encounter is proved

against policemen in a trial, they must be given death sentence, treating it as

the rarest of rare cases. Fake `encounters' are nothing but cold blooded,

brutal murder by persons who are supposed to uphold the law. In our

opinion if crimes are committed by ordinary people, ordinary punishment

should be given, but if the offence is committed by policemen much harsher

punishment should be given to them because they do an act totally contrary

to their duties.

26. We warn policemen that they will not be excused for committing

murder in the name of `encounter' on the pretext that they were carrying out

the orders of their superior officers or politicians, however high. In the

Nuremburg trials the Nazi war criminals took the plea that `orders are

orders', nevertheless they were hanged. If a policeman is given an illegal

order by any superior to do a fake `encounter', it is his duty to refuse to carry

out such illegal order, otherwise he will be charged for murder, and if found

guilty sentenced to death. The `encounter' philosophy is a criminal

philosophy, and all policemen must know this. Trigger happy policemen

who think they can kill people in the name of `encounter' and get away with

it should know that the gallows await them.

16

27. For the above reasons, these appeals are dismissed.

28. Before parting with this case, it is imperative in our opinion to

mention that our ancient thinkers were of the view that the worst state of

affairs possible in society is a state of lawlessness. When the rule of law

collapses it is replaced by Matsyanyaya, which means the law of the jungle.

In Sanskrit the word `Matsya' means fish, and Matsyanyaya means a state of

affairs where the big fish devours the smaller one. All our ancient thinkers

have condemned Matsyanyaya vide `History of Dharmashastra' by P.V.

Kane Vol. III p. 21. A glimpse of the situation which will prevail if

matsyanyaya comes into existence is provided by Mark Antony's speech in

Shakespeare's `Julius Caesar' quoted at the beginning of this judgment.

29. This idea of matsyanyaya (the maxim of the larger fish devouring the

smaller ones or the strong despoiling the weak) is frequently dwelt upon by

Kautilya, the Mahabharata and other works. It can be traced back to the

Shatapatha Brahmana XI 1.6.24 where it is said "whenever there is drought,

then the stronger seizes upon the weaker, for the waters are the law," which

means that when there is no rain the reign of law comes to an end and

matsyanyaya beings to operate.

17

30. Kautilya says, `if danda be not employed, it gives rise to the condition

of matsyanyaya, since in the absence of a chastiser the strong devour the

weak'. That in the absence of a king (arajaka) or when there is no fear of

punishment, the condition of matsyanyaya follows is declared by several

works such as the Ramayana II, CH. 67, Shantiparva of Mahabharat 15.30

and 67,16. Kamandaka II. 40, Matsyapurana 225.9, Manasollasa II.

20.1295 etc.

31. Thus in the Shanti Parva of Mahabharat Vol. 1 it is stated:-

"Raja chen-na bhavellokey prithivyaam dandadharakah

Shuley matsyanivapakshyan durbalaan balvattaraah"

32. This shloka means that when the King carrying the rod of punishment

does not protect the earth then the strong persons destroy the weaker ones,

just like in water the big fish eat the small fish. In the Shantiparva of

Mahabharata Bheesma Pitamah tells Yudhishthir that there is nothing worse

in the world than lawlessness, for in a state of Matsyayaya, nobody, not even

the evil doers are safe, because even the evil doers will sooner or later be

swallowed up by other evil doers.

18

33. We have referred to this because behind the growing lawlessness in

the country this Court can see the looming danger of matsyanyaya.

34. The appeals are dismissed, but it is made clear that the trial court will

decide the criminal case against the appellants uninfluenced by any

observations made in this judgment, or in the impugned judgment of the

High Court.

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

(Markandey Katju)

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

(Gyan Sudha Misra)

New Delhi;

13th May, 2011

The appellant's case is that the suit was instituted between the plaintiff-respondent No.1 herein and 1st defendant- respondent No.2 herein under the pretext of partition but in fact the idea behind institution of the suit was to oust the appellant who continued to be in possession of half of the share of the property being the sole legal representative of the younger son of Laksmi Naicker who was Andi Naicker. As already stated, the appellant in fact was not even made a party in the partition suit initially but was 8 later impleaded as 2nd defendant after she filed an application for her impleadment. "Whether the sale deed executed by the de facto guardian on behalf of the minor without the permission of the court could be held to be valid ?

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 562 OF 2003

RANGAMMAL .. Appellant

Versus

KUPPUSWAMI & ANR. ..Respondents

J U D G M E N T

GYAN SUDHA MISRA, J.

This appeal by special leave has been filed by the

appellant Tmt. Rangammal against the order dated

11.07.2002 passed by the learned single Judge of the High

Court of Judicature at Madras in Second Appeal No.

703/1992 by which the appeal was dismissed by

practically a summary order although the substantial

question of law which was formulated at the time of

admission of the appeal was as follows:

"Whether the sale deed executed by the

de facto guardian on behalf of the minor

without the permission of the court

could be held to be valid ?

2. However, on hearing the appeal in the light of

the prevailing facts and circumstances of the instant

matter, we are of the view that the question also arises

whether in a partition suit filed by the plaintiff/respondent

No.1 herein, the courts below could shift the burden of

proof on the defendant - appellant regarding the validity of

a sale deed, which was executed when the appellant was

admittedly a minor, contrary to the pleading in the plaint

filed in a suit for partition, who claimed title to the suit

land on the basis of the alleged sale deed. Still further the

question arises whether the question of limitation could

arise against the defendant/appellant shifting the burden

on her to challenge the sale deed, when the story of

execution of the alleged sale deed was set up by the

plaintiff/respondent No.1 in the plaint for the first time

when he filed partition suit against his brother, without

impleading the appellant, but claimed benefit of title to the

suit land on the basis of the alleged sale deed.

3. In order to decide the aforesaid controversy, it is

necessary to relate the facts giving rise to this appeal in

so

far as it is relevant which disclose that the appellant Tmt.

Rangammal was impleaded as second defendant in a suit

for partition bearing O.S. No. 255/1982 which had been

filed by one Kuppuswami plaintiff-respondent No.1 herein

in the court of District Munsif, Palani, against his brother

Andivelu who was the principal defendant/1st

defendant/respondent No.2 herein for partition and

separate possession, but the plaintiff also included the

property of the appellant-Rangammal in the schedule to

the plaint without including her as a party to the suit as it

was pleaded by the plaintiff-respondent No.1-Kuppuswami

that the share which originally belonged to the appellant-

Rangammal, was transferred to their predecessors, who

were father and uncle of the plaintiff and defendant

No.1/Respondent No.1 Andivelu, by way of a sale deed

dated 24.2.1951 executed in their favour by Kumara

Naicker who claimed to be the legal guardian of the

Rangammal when the appellant/Rangammal was

admittedly a minor and was barely few years old, less than

even three years. The sale deed was claimed to have been

4

executed for legal necessity in order to discharge the

debt

of the deceased mother of the appellant in the year 1951

which according to the case of the plaintiff-respondent No. 1

had been transferred to their branch by virtue of the

aforesaid sale deed executed on 24.2.1951 by the alleged

guardian of the appellant Kumara Naicker.

4. Since the appellant had not been impleaded in

the suit for partition although her property was included in

the partition suit between the two brothers i.e. plaintiff

Kuppuswami-respondent No.1 herein and Andivelu 1st

defendant -respondent No.2 herein, the appellant filed an

application for impleadment in the partition suit before the

trial court which was allowed.

5. The appellant herein who was impleaded as a

second defendant in the suit clearly pleaded that the

partition suit filed by Kuppuswami-plaintiff against his

brother Andivelu 1st defendant -respondent No.2 herein,

was collusive in nature as this was clearly to deprive the

5

appellant from her share by relying on an alleged sale deed

dated 24.2.1951 by fraudulently stating that the deceased

mother of the appellant was owing certain debt during her

lifetime and in order to discharge the same, the so-

called

legal guardian of the appellant Kumara Naicker executed a

sale deed in favour of the father and uncle of the plaintiff

and defendant No.1 who are respondents herein. It was,

therefore, submitted by the appellant/2nd defendant in the

suit that the sale deed dated 24.2.1951 alleged to have

been executed in order to discharge the debt of her

deceased mother, when the appellant was a minor, ought

not to be held legally binding on her and so as to include

her property for partition in the partition suit which had

been instituted by an altogether different branch of the

family who had separated more than three generations

ago. Hence she specifically pleaded that the partition suit

including her property was clearly collusive in nature and

therefore the suit was fit to be dismissed.

6

6. In order to appreciate whether the courts below

were justified in depriving the appellant Tmt. Rangammal

from her share, it appears necessary to relate some other

salient facts of the case leading up to the filing of this

appeal. The schedule-property comprising an area of 4

acres and 10 cents described in various survey numbers

originally belonged to one Laksmi Naicker-the common

ancestor of contesting parties who had two sons and an

oral partition had taken place between them in regard to the

properties of the joint family including the schedule-

property. Thereafter, a sale deed dated 24.2.1951 in

respect of the schedule-property was executed by Kumara

Naicker -alleged legal guardian of appellant-Rangammal

who was one of the sons of late Kumara Naicker and wife

of the elder son of Laksmi Naicker-Thottammal a cousin of

her son, who was descendent of Kumara Naicker. Kumara

Naicker, i.e. the son of the elder son of Laksmi Naicker

executed the sale deed on behalf of the appellant herein,

who was the daughter of younger son of Laksmi Naicker

and Andi Naicker was admittedly a minor, representing

himself as her guardian since she had lost both her father

7

and her mother at the time of the execution of the sale

deed. However, the appellant according to her case

continued in possession of half of the schedule property

according to the oral partition which had fallen into the

share of her father since the only brother of the appellant/

Rangammal had died unmarried. Thus, the appellant

continued to be in possession of half of the property without

any knowledge about the alleged sale deed.

7. The appellant's case is that as she was a minor

and had lost both her parents, she was living with her

maternal uncle even at the time of the alleged sale. The

appellant's case is that the suit was instituted between the

plaintiff-respondent No.1 herein and 1st defendant-

respondent No.2 herein under the pretext of partition but

in fact the idea behind institution of the suit was to oust

the appellant who continued to be in possession of half of

the share of the property being the sole legal representative

of the younger son of Laksmi Naicker who was Andi

Naicker. As already stated, the appellant in fact was not

even made a party in the partition suit initially but was

8

later impleaded as 2nd defendant after she filed an

application for her impleadment.

8. However, the High Court while dealing with the

second appeal arising out of the partition suit, cast the

burden completely on the appellant/2nd defendant to

prove that the property shown in the sale deed which fell

into the share of the appellant, was not for the purpose of

discharge of the liability of her deceased mother who

according to her case was not owing any debt to anyone

including Kumara Naicker. But the suit was finally

decreed in favour of the plaintiff/respondent No.1 holding

therein that the appellant's deceased mother was owing

certain debts and for discharge of the same, the so-called

legal guardian of the appellant who was Kumara Naicker

executed a sale deed in favour of the plaintiff's father and

defendant No.1's father in respect of the entire property

of Rangammal and this was done ostensibly as the

appellant's mother had to discharge certain debts which

she was owing to the plaintiff's father during her lifetime.

Thus, the District Munsif, Palani, decreed the suit in favour

of the plaintiff/1st respondent herein Kuppuswami. While

9

doing so, the trial court recorded a finding that the sale

deed dated 24.2.1951 by which half share of the appellant

in the suit property was transferred when the appellant

was a minor had been executed by legal guardian Kumara

Naicker for legal necessity according to the case of the

appellant herein, Kumara Naicker the so-called legal

guardian was neither her natural guardian nor guardian

appointed by the court and hence the sale deed executed

by him to the extent of half share of the schedule property

of appellant-Rangammal was clearly void, illegal, inoperative

and hence not binding on her. The trial court decreed the

suit against which the appeal before the 1st appellate court

was dismissed. The matter then came up to the High Court

by way of a second appeal.

9. Learned counsel for the appellant while

challenging the judgment and orders of the courts below

submitted that the sale deed executed by the so-called de

facto guardian Kumara Naicker and Thottammal cannot be

held to be binding on her as she was a minor in the

custody of her maternal uncle and not Kumara Naicker -

father of the respondent No.2 and hence the sale deed

10

executed by him on her behalf was not binding on her as

the same was executed in order to deprive her of her half

share in the disputed property which is situated on the

eastern portion of the schedule property.

10. The learned single Judge of the High Court

however was pleased to dismiss the second appeal holding

therein that the present suit out of which the second

appeal arose was filed in the year 1982 which was after 31

years of the execution of the sale deed dated 24.2.1951.

The single Judge further observed that if the appellant

Tmt. Rangammal was aggrieved of the sale deed executed

by the de facto guardian, she ought to have challenged it

within three years from the date of attaining majority. The

High Court went on to hold that until the date of filing of

the present suit by the 1st respondent and even thereafter,

the appellant had not chosen to challenge the sale deed

executed by the de facto guardian and she never asserted

any title in respect of the suit property irrespective of the

sale deed in order to establish that she was aggrieved of

the sale deed and hence it was too late for the appellant to

11

raise such a plea in the High Court by way of a second

appeal.

11. We have heard learned counsel for the parties at

length and on a consideration of their submissions in the

light of the judgments and orders of the courts below,

specially the High Court, we are clearly of the view that the

High Court as also the courts below have clearly

misconstrued the entire case of the plaintiff as well as the

respondents and tried it contrary to the pleadings. The

High Court has recorded that "the present suit which was

filed in the year 1982, is after 31 years" i.e. after 31 years of

the execution of the sale deed dated 24.2.1951. But it can

be instantly noticed that the High Court has fallen into a

crystal clear error as it has patently and unambiguously

missed that the suit had not been filed by the appellant

Tmt. Rangammal as she was the 2nd defendant who was

later impleaded in the suit but the partition suit had been

filed by the plaintiff-Kuppuswami-respondent No.1 herein

against his brother the 2nd respondent-Andivelu-1st

defendant which was a suit for partition of the property

but while doing so he included and asserted title to the

12

property in the schedule of the plaint which admittedly had

fallen into the share of the appellant's deceased-father

which devolved upon her after the death of her father,

mother and brother who died unmarried. But it is the

plaintiff/respondent No.1 who came up with a case in the

plaint that this property was transferred for legal necessity

by the so-called legal guardian of the appellant by

executing a sale deed on 24.2.1951 in favour of the

respondents predecessors who were father and uncle of the

plaintiff and 1st defendants/respondents herein.

12. The learned single Judge of the High Court as

also the trial court and the lower appellate court thus have

lost sight of the fact that it is the plaintiff/respondent No.1

herein who had come up with a case that the half share of

the disputed property which on partition had fallen into

the share of the appellant's father was sold out by

Kumara Naicker as guardian of the appellant-who was a

minor in order to discharge some debt which the appellant's

deceased mother was alleged to be owing. However the

disputed property which was sold in order to discharge the

alleged burden of debt vide sale deed dated 24.2.1951 was

13

purchased by the plaintiff-1st respondent's father Arumuga

Gounder and their uncle Kumara Naicker which means

that the legal guardian Kumara Naicker claims the property

of the appellant who was minor and then sold it to himself

and nephew Arumuga Gounder. Furthermore, it is also

the plaintiff's case that the property which had fallen into

the share of Tmt. Rangammal had been sold out by

Kumara Naicker to the father of Kuppuswami-Arumuga

Gounder and Andivelu who was his own son.

13. Therefore, it is more than apparent that when

the plaintiff/respondent came up with a case of execution

of sale deed on 24.2.21951 for half of the schedule

property/disputed property alleged to have been sold out

for legal necessity which had fallen into the share of

appellant Rangammal, the burden clearly lay on the

plaintiff/respondent No.1 to discharge that the sale deed

executed by Kumara Naicker to his own son and nephew

Arumuga Gounder in regard to the share which had

admittedly fallen into the appellant share Rangammal

who was a minor, was sold for the legal necessity. But this

burden by the trial court was wrongly cast upon the

14

appellant/Rangammal to discharge, although, it is well-

settled that the party who pleads has also to prove his

case.

14. Section 101 of the Indian Evidence Act, 1872

defines `burden of proof' which clearly lays down that

whosoever desires any court to give judgment as to any

legal right or law dependent on the existence of facts which

he asserts, must prove that those facts exist. When a

person is bound to prove the existence of any fact it is

said that the burden of proof lies on that person. Thus, the

Evidence Act has clearly laid down that the burden of

proving fact always lies upon the person who asserts.

Until such burden is discharged, the other party is not

required to be called upon to prove his case. The court has

to examine as to whether the person upon whom burden

lies has been able to discharge his burden. Until he

arrives at such conclusion, he cannot proceed on the basis

of weakness of the other party. In view of this legal position

of the Evidence Act, it is clear that in the instant matter,

when the plaintiff/respondent No.1 pleaded that the

disputed property fell into the share of the plaintiff by

15

virtue of the sale deed dated 24.2.1951, then it was clearly

for the plaintiff/respondent No.1 to prove that it was

executed for legal necessity of the appellant-while she was

a minor. But, the High Court clearly took an erroneous

view while holding that it is the defendant/appellant who

should have challenged the sale deed after attaining

majority as she had no reason to do so since the plaintiff

/respondent No.1 failed to first of all discharge the burden

that the sale deed in fact had been executed for legal

necessity of the minor's predecessor mother was without

permission of the court. It was not the

defendant/respondent who first of all claimed benefit of the

sale deed or asserted its genuineness, hence the burden of

challenging the sale deed specifically when she had not even

been dispossessed from the disputed share, did not arise at

all.

15. Plethora of commentaries emerging from series

of case laws on burden of proof which are too numerous

to cite, lay down that when a person after attaining

majority, questions any sale of his property by his guardian

during his minority, the burden lies on the person who

16

upholds/asserts the purchase not only to show that the

guardian had the power to sell but further that the whole

transaction was bona fide. This was held in the case of

Roop Narain vs. Gangadhar, 9WR 297, as also in Anna

Malay vs. Na U Ma, 17C 990. Thus when the

plaintiff/respondent No.1 came up with a case that the

minor's share/appellant herein was sold for legal necessity

by her uncle Kumara Naicker, then it was the

plaintiff/respondent No.1 who should have discharged the

burden to prove that the minor/appellant's share had been

sold of by the de facto guardian Kumara Naicker without

permission of the court, could be held to be legal and valid

so as to include the same in the partition suit between two

brothers, which has not been discharged at all by the

plaintiff/respondent No.1. In fact, the real brother of

plaintiff Kuppuswami who is defendant No.1/respondent

No.1 herein Andivelu has also not supported the case of the

plaintiff that the half share of appellant/Rangammal in the

disputed property was sold out vide sale deed dated

24.2.1951 for legal necessity without permission of the

Court and hence defendant No.1/respondent No.2 also has

17

not supported the case of the plaintiff/respondent No.1 on

this count.

16. The plaintiff/respondent No.1 therefore has

miserably failed to prove his case as per his pleading in the

plaint and the burden to prove that the sale deed in fact

was valid has not even been cast on plaintiff/respondent

No.1 that the share of appellant-Rangammal had been sold

out by Kumara Naicker vide sale deed dated 24.2.1951 for

consideration without permission of the Court when the

appellant was a minor.

17. The High Court, therefore, has fallen into an

error while observing that the appellant/defendant No.2 in

the suit should have assailed the sale deed and cannot do

so after 31 years of its execution when it is unambiguously

an admitted factual position that it is the

plaintiff/respondent No.1 who had filed a suit for partition

against his brother defendant No.1/respondent No.2 and in

that partition suit it was plaintiff/respondent No.1 who

banked upon the story that a sale deed had been executed

by his Uncle Kumara Naicker who claimed it to be the legal

guardian of the appellant-Rangammal who admittedly was a

18

minor for legal necessity which was to discharge the debt of

the appellant's deceased mother. Hence, in view of Section

101 of the Indian Evidence Act, 1872 it is the

plaintiff/respondent No.1 who should have first of all

discharged the burden that in fact a sale deed had been

executed for the share which admittedly belonged to

appellant-Rangammal in order to discharge the burden of

debt for legal necessity and for the benefit of the appellant

who admittedly was a minor.

18. When the plaintiff-respondent No.1-Kuppuswami

came with a specific pleading for the first time in a partition

suit that the appellant's share had been sold out by her de

facto guardian Kumara Naicker without even the permission

of the court, it was clearly the plaintiff/respondent No.1

who should have discharged the burden that the same was

done for legal necessity of the minor in order to discharge

the debt which the deceased mother of the appellant was

alleged to have been owing to some one. When the

plaintiff/respondent No.1 failed to discharge this burden,

the question of discharge of burden to disprove the sale

deed by the 2nd defendant/appellant-Rangammal do not

19

arise at all as per the provisions of Evidence Act. It may be

relevant at this stage to cite the ratio of the decision of this

Court delivered in the matter of Subhra Mukherjee vs.

Bharat Coaking Coal Ltd, AIR 2000 SC 1203, whether the

document in question was genuine or sham or bogus, the

party who alleged it to be bogus had to prove nothing until

the party relying upon the document established its

genuineness. This was the view expressed by this Court in

the matter of Subhra Mukherjee vs. Bharat Coaking Coal

Ltd, AIR 2000 SC 1203 = 2000 (3) SCC 312. This case

although did not relate to a suit for partition or question

relating to minority, it was a case wherein the appellant

refused to hand over possession of property to the

respondent-government company when ordered to do so.

Instead she filed a suit for declaration of title in respect of

property. The evidence of plaintiff/appellant indicated

several discrepancies and inconsistencies due to which

the trial court dismissed the suit but the 1st appellate court

and the High Court, had allowed the appeal which was

upheld by the Supreme Court as it was held that the High

Court rightly allowed the respondent's/government

20

company's second appeal and rightly found that the sale in

favour of the appellant was not bona fide and thus confer

no rights on them.

19. Application of Section 101 of the Evidence Act,

1872 thus came up for discussion in this matter and while

discussing the law on the burden of proof in the context of

dealing with the allegation of sham and bogus

transaction, it was held that party which makes allegation

must prove it. But the court was further pleased to hold

wherein the question before the court was "whether the

transaction in question was a bona fide and genuine one"

so that the party/plaintiff relying on the transaction had to

first of all prove its genuineness and only thereafter would

the defendant be required to discharge the burden in order

to dislodge such proof and establish that the transaction

was sham and fictitious. This ratio can aptly be relied

upon in this matter as in this particular case, it is the

plaintiff/respondent No.1-Kuppuswami who relied upon

the alleged sale deed dated 24.2.1951 and included the

subject-matter of the property which formed part of the sale

deed and claimed partition. This sale deed was denied by

21

the defendant/appellant on the ground that it was bogus

and a sham transaction which was executed admittedly in

1951 when she was a minor. Thus, it was the

plaintiff/respondent No.1 who should have first of all

discharged the burden that the sale deed executed during

the minority of the appellant was genuine and was fit to be

relied upon. If the courts below including the High Court

had felt satisfied on this aspect, only then the burden

could be shifted on the defendant/appellant to dislodge

the case of the plaintiff that the sale deed was not genuine.

But when the plaintiff merely pleaded in the plaint but

failed to lead any evidence - much less proof, that the sale

deed was genuine and was executed in order to discharge

the burden of legal necessity in the interest of minor, then

the High Court clearly misdirected itself by recording in

the impugned order that it is the defendant/appellant

herein who should have challenged the genuineness of the

sale deed after attaining majority within the period of

limitation.

20. Since the High Court has misplaced burden of

proof, it clearly vitiated its own judgments as also of the

22

courts below since it is well established dictum of the

Evidence Act that misplacing burden of proof would vitiate

judgment. It is also equally and undoubtedly true that

the burden of proof may not be of much consequence after

both the parties lay evidence, but while appreciating the

question of burden of proof, misplacing of burden of proof

on a particular party and recording findings in a particular

way definitely vitiates the judgment as it has happened in

the instant matter. This position stands reinforced by

several authorities including the one delivered in the case

of Koppula Koteshwara Rao vs. Koppula Hemant Rao,

2002 AIHC 4950 (AP).

21. It has been further held by the Supreme Court in

the case of State of J & K vs. Hindustan Forest Company,

2006 (12) SCC 198, wherein it was held that the onus is on

the plaintiff to positively establish its case on the basis of

material available and it cannot rely on the weakness or

absence of defence to discharge onus.

22. It was still further held by this Court in the

matter of Corporation of City of Bangalore vs. Zulekha Bi,

2008 (11) SCC 306 (308) that it is for the plaintiff to prove

23

his title to the property. This ratio can clearly be made

applicable to the facts of this case for it is the plaintiff who

claimed title to the property which was a subject-matter of

the alleged sale deed of 24.2.1951 for which he had sought

partition against his brother and, therefore, it was clearly

the plaintiff who should have first of all established his case

establishing title of the property to the joint family out of

which he was claiming his share. When the plaintiff

himself failed to discharge the burden to prove that the sale

deed which he executed in favour of his own son and

nephew by selling the property of a minor of whom he

claimed to be legal guardian without permission of the

court, it was clearly fit to be set aside by the High Court

which the High Court as also the courts below have

miserably failed to discharge. The onus was clearly on the

plaintiff to positively establish his case on the basis of

material available and could not have been allowed by the

High Court to rely on the weakness or absence of defence

of the defendant/appellant herein to discharge such onus.

23. The courts below thus have illegally and

erroneously failed not to cast this burden on the

24

plaintiff/respondent No.1 by clearly misconstruing the

whole case and thus resulted into recording of findings

which are wholly perverse and even against the admitted

case of the parties.

24. It is further well-settled that a suit has to be

tried on the basis of the pleadings of the contesting parties

which is filed in the suit before the trial court in the form

of plaint and written statement and the nucleus of the

case of the plaintiff and the contesting case of the

defendant in the form of issues emerges out of that. This

basic principle, seems to have been missed not only by the

trial court in this case but consistently by the first

appellate court which has been compounded by the High

Court.

25. Thus, we are of the view, that the whole case out

of which this appeal arises had been practically made a

mess by missing the basic principle that the suit should

be decided on the basis of the pleading of the contesting

parties after which Section 101 of The Evidence Act would

come into play in order to determine on whom the burden

falls for proving the issues which have been determined.

25

26. We further fail to comprehend as to how the

basic case pleaded by the plaintiff had been misconstrued

and the burden of discharge of genuineness, veracity and

legal efficacy of the sale deed dated 24.2.1951 was shifted

on the appellant-Rangammal clearly missing that it is the

plaintiff's/respondent No.1 case who was bent upon to

include Rangammal's property also for partition by relying

upon the story of execution of sale deed when the partition

suit was between the two brothers who were plaintiff-

Kuppuswami and defendant No.1-Andivelu.

27. Coming now to the next question, we are unable

to appreciate as to how the High Court has held that the

delay in challenging the sale deed of 1951 should have

been done at the instance of the 2nd defendant-appellant

herein when it is the plaintiff who brought the

theory/story of execution of the sale deed of appellant

Rangammal's property into the branch of

plaintiff/respondents' branch by pleading and asserting

that this had fallen into the share of their predecessor as

one of the predecessors was the de facto guardian of the

appellant Rangammal. In fact, if there was a dispute about

26

the genuineness and veracity of the sale deed and the

appellant was in occupation of her share, then it is the

plaintiff who should have filed a suit claiming title on the

basis of the sale deed which was claimed to have been

executed in their favour by the de facto guardian of

Rangammal when she was a minor before this property

could be included in the suit for partition between the

brothers excluding the 2nd defendant/appellant Rangammal

and the consequence of not doing so or delay in this

regard, obviously will have to be attributed to the

plaintiff/respondent.

28. Thus, the High Court fell into a clear error when

it observed that the suit was barred by limitation as it had

been filed after 31 years of the execution of the sale deed

which on the face of it is factually incorrect. The High

Court has clearly erred while recording so, as it seems to

have missed that the suit had not been filed by the

appellant herein but she was merely contesting the suit as

the 2nd defendant by getting herself impleaded in the

partition suit when it came to her knowledge that the

property which is in her occupation and possession has

27

also been included in the schedule in the suit for partition

between plaintiff/respondent No.1 herein-Kuppuswamy

and the 1st defendant/respondent No.2 herein-Andivelu

and when she received the copy of the plaint, execution of

the alleged sale deed way back in 1951 was disclosed to

her for the first time. Hence, there was no cause of action

for her to file a suit challenging the alleged sale deed as

knowledge of the same cannot be attributed to her in this

regard as she asserted actual physical possession on her

share.

29. The appellant who claimed to be in occupation

and peaceful possession of her share to the extent of half

which is situated on the eastern side of the schedule

property, had no reason to file a suit assailing the sale

deed when she was in actual physical possession of her

share and suddenly out of the blue, a partition suit was

filed by the plaintiff/respondent No.1 wherein the property

of the appellant also was included in the schedule of the

partition suit which was to be partitioned between the two

brothers by metes and bounds by setting a cooked up story

that the appellant's share, who belonged to an altogether

28

different branch of the family, had been given away by her

de facto guardian Kumara Naicker by executing a sale deed

in favour of the respondents' predecessor way back on

24.2.1951 when the appellant admittedly was a minor.

30. We are, therefore, constrained to partly set aside

the judgment and order of the High Court in so far as the

share of the appellant Rangammal is concerned and

consequently the decree passed by the trial court, upheld

by the first appellate court and the High Court which had

been illegally decreed including the share of the appellant

-Rangammal which had not devolved on the family of the

plaintiff/respondent No.1 and defendant No.1/respondent

No.2, but was claimed on the basis of a sale deed which

could not be proved either by evidence or law, is fit to be set

aside.

31. It hardly needs to be highlighted that in a suit

for partition, it is expected of the plaintiff to include only

those properties for partition to which the family has clear

title and unambiguously belong to the members of the joint

family which is sought to be partitioned and if someone

else's property meaning thereby disputed property is

29

included in the schedule of the suit for partition, and the

same is contested by a third party who is allowed to be

impleaded by order of the trial court, obviously it is the

plaintiff who will have to first of all discharge the burden of

proof for establishing that the disputed property belongs

to the joint family which should be partitioned excluding

someone who claims that some portion of the joint family

property did not belong to the plaintiff's joint family in

regard to which decree for partition is sought.

32. However, we make it clear that the decree which

has been passed by the trial court in so far as partition

between plaintiff/respondent No.1 and defendant

No.1/respondent No.2 is concerned, shall remain in tact

but the said decree shall exclude the property which had

fallen into the share of appellant-Rangammal but was

claimed to have been transferred to the branch of the

plaintiff and 1st defendant-respondents herein vide sale

deed dated 24.2.1951 The trial court being the court of

District Munsif, Palani, accordingly shall modify the decree

passed in O.S. No.255 of 1982 by excluding the share of

the appellant -Rangammal claimed on the basis of the sale

30

deed dated 24.2.1951. Thereafter, if the decree is put to

execution, the executing court shall ensure that such

portion of the property which is in occupation of

Rangammal which was alleged to have been sold vide sale

deed dated 24.2.1951, shall not be put into execution while

partitioning the remaining property between the plaintiff-

Kuppuswami and 1st defendant -Andivelu - respondent

No.2.

33. Thus, this appeal in so far as the claim of the

appellant- Rangammal to the extent of half of the share in

the schedule to the suit property, situated on the eastern

portion is concerned, stands allowed with a token cost

which is quantified at rupees twenty five thousand as we

are of the view that the appellant who was in actual

physical and peaceful possession of her property which she

had inherited from her deceased parents, was unnecessarily

dragged into this litigation at the instance of the plaintiff-

Kuppuswami who filed a partition suit which was

apparently collusive in nature as it included the share of a

third party to which the plaintiff and 1st defendant's family

had no clear title. Under the facts and circumstance of

31

the instant case, it was clearly a compulsion on the part of

the appellant/Tmt. Rangammal to contest the collusive suit

for decades Kwasting time, energy and expense over a

litigation which was started by the plaintiff clearly with an

oblique motive and evil design. Hence the cost shall be paid

by the respondent No.1-Kuppuswami to the appellant-

Rangammal as indicated above.

34. Accordingly, this appeal stands allowed with

costs.

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

(J.M. Panchal)

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

(Gyan Sudha Misra )

New Delhi,

May 13, 2011

32

LAW FOR ALL

LawforAll

advocatemmmohan

WELCOME TO LEGAL WORLD

Tuesday, May 31, 2011

the FIR has been recorded in clear violation of the provisions contained under Section 20(A)(1) of the said Act, as a result whereof, the entire proceeding subsequent thereto has been vitiated and this has also vitiated the judgment and order of the designated court.

Sunday, May 15, 2011