IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.520 OF 2015
[Arising out of S.L.P. (Crl.) No. 5825 of 2014]
State of Punjab ... Appellant
Versus
Saurabh Bakshi ... Respondent
J U D G M E N T
Dipak Misra, J.
Long back, an eminent thinker and author, Sophocles, had to say:
"Law can never be enforced unless fear supports them."
Though the aforesaid statement was made centuries back, it has its
pertinence, in a way, with the enormous vigour, in today's society. It is
the duty of every right-thinking citizen to show veneration to law so that
an orderly, civilized and peaceful society emerges. It has to be borne in
mind that law is averse to any kind of chaos. It is totally intolerant of
anarchy. If any one defies law, he has to face the wrath of law, depending
on the concept of proportionality that the law recognizes. It can never be
forgotten that the purpose of criminal law legislated by the competent
legislatures, subject to judicial scrutiny within constitutionally
established parameters, is to protect the collective interest and save
every individual that forms a constituent of the collective from
unwarranted hazards. It is sometimes said in an egocentric and uncivilised
manner that law cannot bind the individual actions which are perceived as
flaws by the large body of people, but, the truth is and has to be that
when the law withstands the test of the constitutional scrutiny in a
democracy, the individual notions are to be ignored. At times certain
crimes assume more accent and gravity depending on the nature and impact of
the crime on the society. No court should ignore the same being swayed by
passion of mercy. It is the obligation of the court to constantly remind
itself that the right of the victim, and be it said, on certain occasions
the person aggrieved as well as the society at large can be victims, never
be marginalised. In this context one may recapitulate the saying of
Justice Benjamin N. Cardizo "Justice, though due to the accused, is due to
the accuser too". And, therefore, the requisite norm has to be the
established principles laid down in precedents. It is neither to be guided
by a sense of sentimentality nor to be governed by prejudices. We are
constrained to commence with this prologue because we are required to deal
with the concept of adequacy of quantum of sentence imposed by the High
Court under Section 304A of the Indian Penal Code (IPC) after maintaining
the conviction of the respondent of the said offence as the prosecution has
proven the charge that the respondent has caused death of two persons by
rash and negligent driving of a motor vehicle.
2. The facts which are necessitous to be stated are that on 14.6.2007
Jagdish Ram and his nephew, Shavinder Kumar @ Tinku, sister's son, had
proceeded from Sangrur to Patiala in their Maruti car bearing registration
PB-11-M-8050. The said vehicle was also followed by Ramesh Chand in
another Maruti car bearing registration no. PB-09-C-6292. Be it noted that
all of them had gone to house of one Des Raj at Sangrur in connection with
matrimonial alliance of Shavinder Kumar alias Tinku. The vehicle that was
driven by Tinku was ahead of Ramesh's at a distance of 25/30 kadams. After
they reached some distance ahead of the bus stand village Mehmadpur about
2.00 p.m. an Indica car bearing registration no. HR-02-6800 came from the
opposite side at a very high speed and the driver of the said car hit
straightaway the car of Jagdish and dragged it to a considerable distance
as a result of which it fell in the ditches. Ramesh Chand, who was
following in his car, witnessed that his brother-in-law and nephew had
sustained number of injuries and their condition was critical. A police
ambulance came to the spot and the injured persons were taken to Rajindra
Hospital, Patiala where Jagdish and Shavinder Kumar succumbed to injuries.
In view of the said incident as FIR was lodged by Ramesh Chand, brother-in-
law of Jagdish and accordingly a crime under Section 279/304A was
registered against the respondent for rash and negligent driving. The
learned trial Magistrate, Patiala framed charges for the offences
punishable under Section 279/304A IPC to which the respondent pleaded not
guilty and claimed to be tried. The prosecution in order to prove its
case examined six witnesses. The learned Addl. Chief Judicial Magistrate,
Patiala vide judgment and order dated 23.4.2012 convicted the respondent
for the offences punishable under Section 304A IPC and sentenced him to
undergo rigorous imprisonment for a period of one year and pay a fine of
Rs.2000/- with a default clause. On an appeal being preferred, the learned
Addl. Sessions Judge, Patiala dismissed the appeal by judgment and order
dated 6.9.2013.
3. As the factual matrix would unveil the respondent being grieved by
the aforesaid conviction and the sentence preferred Criminal Revision No.
2955 of 2013 and the High Court while disposing off the Criminal Revision
addressed to the quantum of sentence and in that context observed that:-
"...the legal heirs of Jagdish Ram have been awarded a sum of Rs.7,30,000/-
as compensation by the MACT and Rs.12,07,206/- to the legal heirs of
Swinder Kumar @ Tinku by the MACT. The FAO Nos. 5329 and 5330 are pending
in this Court. In compliance of order dated 19.9.2013, the petitioner has
deposited Rs.85,000/- before the trial court as compensation to be paid to
the LRs of deceased Jagdish Ram and Swinder Kumar @ Tinku. The
compensation shall be divided as Rs.50,000/- to the LRs of Swinder Kumar @
Tinku and Rs.35,000/- to the LRs of Jagdish Ram. The receipt is taken on
record. As per custody certificate petitioner Saurabh Bakshi has undergone
24 days as on 30.9.2013 out of one year."
Being of this view the High Court upheld the conviction and reduced the
sentence, as has been stated before, to the period already undergone.
Hence, the State is in appeal.
4. At this juncture, it is essential to state that the respondent who
had initially wanted to argue the matter in-person had agreed to be
assisted by a counsel and accordingly this court had appointed Ms.
Meenakshi Arora, learned senior counsel to assist the court in the matter.
5. We have heard Mr. V. Madhukar, learned Additional Advocate General
and Ms. Meenakshi Arora, learned senior counsel for the respondent.
6. It is submitted by Mr. Madhukar that when the prosecution had been
able to establish the charges leveled against the respondent and both the
trial court and the appellant court had maintained the sentence there was
no justification on the part of the High Court to reduce the sentence to
the period already undergone solely on the basis that the respondent had
paid some compensation. It is his further submission that keeping in view
the gravity of the offence that two deaths had occurred the High Court
should have kept itself alive to the nature of the crime and should have
been well advised not to interfere with the quantum of sentence. He has
commended us to the decisions in State of Punjab v. Balwinder Singh and
Others[1] and Guru Basavaraj Alias Benne Settappa v. State of Karnataka[2].
7. Ms. Meenakshi, learned senior counsel, per contra, has contended that
the respondent was quite young at the time the accident took place and it
may be an act of negligence, but the contributory facet by the Maruti car
driver cannot be ruled out. That apart, there are mitigating circumstances
for reduction of the sentence and in the obtaining factual matrix the High
Court has appositely adopted corrective machinery which also reflects the
concept of proportionality. The learned senior counsel would also submit
that when the High Court has exercised the discretion which is permissible
under Section 304A this court should be slow to interfere. It is urged by
her that when the compensation had been paid, the High Court has kept in
view the aspect of rehabilitation of the victim and when that purpose have
been sub-served the reduction of sentence should not be interfered with.
The learned senior counsel has drawn inspiration from Gopal Singh v. State
of Uttarakhand[3] and a recent judgment in Criminal Appeal No. 290 of 2015
titled State of M.P. v. Mehtaab[4].
8. At the outset, it is essential to note that the respondent stood
convicted by the trial court as well by the appellate court. The findings
recorded by the said two courts are neither perverse nor did they call for
interference in exercise of the revisional jurisdiction. The High Court as
we notice has been persuaded by the factum of payment of compensation by
the respondent herein, amounting to Rs.85,000/- to the LRs of deceased
Jagdish Ram and his nephew and the said compensation had been directed to
be paid by virtue of the order dated 19.9.2013 passed by the High Court.
It is submitted by Ms. Arora that apart from the young age of the
respondent at the time of occurrence the aforesaid aspect would constitute
the mitigating factor. In Mehtaab's case a two-Judge Bench was dealing
with the case under Section 304A IPC wherein the respondent was convicted
under Section 304A IPC and 337 IPC and sentenced to undergo one year and
three months rigorous imprisonment respectively. The High Court had
reduced the sentence to 10 days. It is apt to note here that in that case
the deceased had received injuries due to shock of electric current. The
court took note of the submission of the learned counsel for the State and
proceeded to opine as follows:-
"7. Learned Counsel for the State submitted that the accused Respondent had
installed a transformer in his field and left the electric wires naked
which was a negligent act. The deceased Sushila Bai died on account of the
said naked wire which had high voltage and was not visible in the dark. The
offence having been fully proved by the evidence on record, the High Court
was not justified in reducing the sentence to 10 days which was not just
and fair. Even if liberal view on sentence of imprisonment was to be taken,
the High Court ought to have enhanced the sentence of fine and awarded a
reasonable compensation as a condition for reduction of sentence.
8. We find force in the submission. It is the duty of the Court to award
just sentence to a convict against whom charge is proved. While every
mitigating or aggravating circumstance may be given due weight, mechanical
reduction of sentence to the period already undergone cannot be
appreciated. Sentence has to be fair not only to the accused but also to
the victim and the society. It is also the duty of the court to duly
consider the aspect of rehabilitating the victim. Unfortunately, these
factors are missing in the impugned order. No cogent reason has been
assigned for imposing only 10 days sentence when an innocent life has been
lost."
After so stating the court referred to the decision in Suresh v. State of
Haryana[5] and enhanced the compensation taking note of the financial
capacity of the accused respondent therein, and directed as follows:-
"10. As already observed, the Respondent having been found guilty of
causing death by his negligence, the High Court was not justified in
reducing the sentence of imprisonment to 10 days without awarding any
compensation to the heirs of the deceased. We are of the view that in the
facts and circumstances of the case, the order of the High Court can be
upheld only with the modification that the accused will pay compensation of
Rs. 2 lakhs to the heirs of the deceased within six months. In default, he
will undergo RI for six months. The compensation of Rs. 2 lakhs is being
fixed having regard to the limited financial resources of the accused but
the said compensation may not be adequate for the heirs of the deceased. In
such situation, in addition to the compensation to be paid by the accused,
the State can be required to pay compensation Under Section 357-A. As per
judgment of this Court in Suresh (supra), the scheme adopted by the State
of Kerala is applicable to all the States and the said scheme provides for
compensation upto Rs. 5 lakhs in the case of death. In the present case, it
will be appropriate, in the interests of justice, to award interim
compensation of Rs. 3 lakhs Under Section 357-A payable out of the funds
available/to be made available by the State of Madhya Pradesh with the
District Legal Services, Authority, Guna. In case, the accused does not pay
the compensation awarded as above, the State of Madhya Pradesh will pay the
entire amount of compensation of Rs. 5 lakhs within three months after
expiry of the time granted to the accused."
9. In our considered view the decision in the said case has to be
confined to the facts of that case. It cannot be said as a proposition of
law that whenever an accused offers acceptable compensation for
rehabilitation of a victim, regardless of the gravity of the crime under
Section 304A, there can be reduction of sentence.
10. In this context, we may refer with profit to the decision in
Balwinder Singh (supra) wherein the High Court had allowed the revision and
reduced the quantum of sentence awarded by the Judicial Magistrate, First
Class, for the offences punishable under Section 304A, 337, 279 of IPC by
reducing the sentence of imprisonment already undergone that is 15 days.
The court referred to the decision in Dalbir Singh v. State of Haryana[6]
and reproduced two paragraphs which we feel extremely necessary for
reproduction:-
"1. When automobiles have become death traps any leniency shown to drivers
who are found guilty of rash driving would be at the risk of further
escalation of road accidents. All those who are manning the steering of
automobiles, particularly professional drivers, must be kept under constant
reminders of their duty to adopt utmost care and also of the consequences
befalling them in cases of dereliction. One of the most effective ways of
keeping such drivers under mental vigil is to maintain a deterrent element
in the sentencing sphere. Any latitude shown to them in that sphere would
tempt them to make driving frivolous and a frolic.
* * *
13. Bearing in mind the galloping trend in road accidents in India and the
devastating consequences visiting the victims and their families, criminal
courts cannot treat the nature of the offence under Section 304-A IPC as
attracting the benevolent provisions of Section 4 of the Probation of
Offenders Act. While considering the quantum of sentence to be imposed for
the offence of causing death by rash or negligent driving of automobiles,
one of the prime considerations should be deterrence. A professional driver
pedals the accelerator of the automobile almost throughout his working
hours. He must constantly inform himself that he cannot afford to have a
single moment of laxity or inattentiveness when his leg is on the pedal of
a vehicle in locomotion. He cannot and should not take a chance thinking
that a rash driving need not necessarily cause any accident; or even if any
accident occurs it need not necessarily result in the death of any human
being; or even if such death ensues he might not be convicted of the
offence; and lastly, that even if he is convicted he would be dealt with
leniently by the court. He must always keep in his mind the fear psyche
that if he is convicted of the offence for [pic]causing death of a human
being due to his callous driving of the vehicle he cannot escape from a
jail sentence. This is the role which the courts can play, particularly at
the level of trial courts, for lessening the high rate of motor accidents
due to callous driving of automobiles."
11. In B. Nagabhushanam v. State of Karnataka[7] the appellant was
directed to undergo simple imprisonment for six months for the offences
punishable under Section 304A IPC. The two-Judge Bench referred to Dalbir
Singh (supra) and declined to interfere with the quantum of sentence. Be
it stated, in the said case a passage from Ratan Singh v. State of
Punjab[8] was quoted:-
"Nevertheless, sentencing must have a policy of correction. This driver, if
he has to become a good driver, must have a better training in traffic laws
and moral responsibility, with special reference to the potential injury to
human life and limb. Punishment in this area must, therefore, be
accompanied by these components. The State, we hope, will attach a course
for better driving together with a livelier sense of responsibility, when
the punishment is for driving offences. Maybe, the State may consider, in
case of men with poor families, occasional parole and reformatory courses
on appropriate application, without the rigour of the old rules which are
subject to Government discretion."
12. In Guru Basavaraj (supra) the appellant was found guilty for the
offences punishable under Sections 337, 338, 279 and 304A IPC and sentenced
to suffer simple imprisonment of six months and to pay a fine of Rs.2000/-
and in default to suffer simple imprisonment of 45 days. The two-Judge
Bench after placing reliance on State of Karnataka v. Krishna[9], Sevaka
Perumal v. State of T.N.[10], Jashubha Bharatsinh Gohil v. State of
Gujarat[11], State of Karnataka v. Sharanappa Basanagouda Aregoudar[12] and
State of M.P. v. Saleem[13] opined that there is a constant concern of the
court on imposition of adequate sentence in respect of commission of
offences regard being had to the nature of the offence and demand of the
conscience of the society. There has been emphasis on the concern to
impose adequate sentence for the offence punishable under Section 304A IPC.
The Court has observed that it is worthy to note that in certain
circumstances, the mitigating factors have been taken into consideration
but the said aspect is dependent on the facts of each case. As the trend of
authorities would show, the proficiency in professional driving is
emphasised upon and deviation therefrom that results in rash and negligent
driving and causes accident has been condemned. In a motor accident, when a
number of people sustain injuries and a death occurs, it creates a stir in
the society; sense of fear prevails all around. The negligence of one
shatters the tranquility of the collective. When such an accident occurs,
it has the effect potentiality of making victims in many a layer and
creating a concavity in the social fabric. The agony and anguish of the
affected persons, both direct and vicarious, can have nightmarish effect.
It has its impact on the society and the impact is felt more when accidents
take place quite often because of rash driving by drunken, negligent or,
for that matter, adventurous drivers who have, in a way, no concern for
others. Be it noted, grant of compensation under the provisions of the
Motor Vehicles Act, 1988 is in a different sphere altogether. Grant of
compensation under Section 357(3) CrPC with a direction that the same
should be paid to the person who has suffered any loss or injury by reason
of the act for which the accused has been sentenced has a different contour
and the same is not to be regarded as a substitute in all circumstances for
adequate sentence. Thereafter, the Court proceeded to observe:-
"32. We may note with profit that an appropriate punishment works as an eye-
opener for the persons who are not careful while driving vehicles on the
road and exhibit a careless attitude possibly harbouring the notion that
they would be shown indulgence or lives of others are like "flies to the
wanton boys". They totally forget that the lives of many are in their
hands, and the sublimity of safety of a human being is given an indecent
burial by their rash and negligent act.
33. There can hardly be any cavil that there has to be a proportion between
the crime and the punishment. It is the duty of the court to see that
appropriate sentence is imposed regard being had to the commission of the
crime and its impact on the social order. The cry of the collective for
justice [pic]which includes adequate punishment cannot be lightly ignored."
Being of this view, the Court declined to interfere.
13. In Siriya v. State of M.P.[14] it has been held as follows:-
"Protection of society and stamping out criminal proclivity must be the
object of law which must be achieved by imposing appropriate sentence.
Therefore, law as a cornerstone of the edifice of "order" should meet the
challenges confronting the society. Friedman in his Law in Changing Society
stated that: "State of criminal law continues to be-as it should be-a
decisive reflection of social consciousness of society". Therefore, in
operating the sentencing system, law should adopt the corrective machinery
or deterrence based on factual matrix. By deft modulation sentencing
process be stern where it should be, and tempered with mercy where it
warrants to be."
14. In Alister Anthony Pareira v. State of Maharashtra[15] while
emphasizing on the inherent danger the Court observed thus:-
"39. Like Section 304-A, Sections 279, 336, 337 and 338 IPC are attracted
for only the negligent or rash act. The scheme of Sections 279, 304-A, 336,
337 and 338 leaves no manner of doubt that these offences are punished
because of the inherent danger of the acts specified therein irrespective
of knowledge or intention to produce the result and irrespective of the
result. These sections make punishable the acts themselves which are likely
to cause death or injury to human life."
15. While dealing with the policy of sentencing in Gopal Singh (supra)
the two-Judge Bench quoted a paragraph from Shailesh Jasvantbhai v. State
of Gujarat[16] which is as follows:-
"7. The law regulates social interests, arbitrates conflicting claims and
demands. Security of persons and property of the people is an essential
function of the State. It could be achieved through instrumentality of
criminal law. Undoubtedly, there is a cross-cultural conflict where living
law must find answer to the new challenges and the courts are required to
mould the sentencing system to meet the challenges. The contagion of
lawlessness would undermine social order and lay it in ruins. Protection of
society and stamping out criminal proclivity must be the object of law
which must be achieved by imposing appropriate sentence. Therefore, law as
a cornerstone of the edifice of 'order' should meet the challenges
confronting the society. Friedman in his Law in Changing Society stated
that: 'State of criminal law continues to be-as it should be-a decisive
reflection of social consciousness of society.' Therefore, in operating the
sentencing system, law should adopt the corrective machinery or deterrence
based on factual matrix. By deft modulation, sentencing process be stern
where it should be, and tempered with mercy where it warrants to be. The
facts and given circumstances in each case, the nature of the crime, the
manner in which it was planned and committed, the motive for commission of
the crime, the conduct of the accused, the nature of weapons used and all
other attending circumstances are relevant facts which would enter into the
area of consideration."
In the said case it has been laid as follows:-
"18. Just punishment is the collective cry of the society. While the
collective cry has to be kept uppermost in the mind, simultaneously the
principle of proportionality between the crime and punishment cannot be
totally brushed aside. The principle of just punishment is the bedrock of
sentencing in respect of a criminal offence. A punishment should not be
disproportionately excessive. The concept of proportionality allows a
significant discretion to the Judge but the same has to be guided by
certain principles. In certain cases, the nature of culpability, the
antecedents of the [pic]accused, the factum of age, the potentiality of the
convict to become a criminal in future, capability of his reformation and
to lead an acceptable life in the prevalent milieu, the effect - propensity
to become a social threat or nuisance, and sometimes lapse of time in the
commission of the crime and his conduct in the interregnum bearing in mind
the nature of the offence, the relationship between the parties and
attractability of the doctrine of bringing the convict to the value-based
social mainstream may be the guiding factors. Needless to emphasise, these
are certain illustrative aspects put forth in a condensed manner. We may
hasten to add that there can neither be a straitjacket formula nor a
solvable theory in mathematical exactitude. It would be dependent on the
facts of the case and rationalised judicial discretion. Neither the
personal perception of a Judge nor self-adhered moralistic vision nor
hypothetical apprehensions should be allowed to have any play. For every
offence, a drastic measure cannot be thought of. Similarly, an offender
cannot be allowed to be treated with leniency solely on the ground of
discretion vested in a court. The real requisite is to weigh the
circumstances in which the crime has been committed and other concomitant
factors which we have indicated hereinbefore and also have been stated in a
number of pronouncements by this Court. On such touchstone, the sentences
are to be imposed. The discretion should not be in the realm of fancy. It
should be embedded in the conceptual essence of just punishment."
16. In Shyam Narain v. State (NCT of Delhi) [17] though in a different
context while dealing with the issue of sentencing it has been stated that
primarily it is to be borne in mind that sentencing for any offence has a
social goal. Sentence is to be imposed regard being had to the nature of
the offence and the manner in which the offence has been committed. The
fundamental purpose of imposition of sentence is based on the principle
that the accused must realise that the crime committed by him has not only
created a dent in his life but also a concavity in the social fabric. The
purpose of just punishment is designed so that the individuals in the
society which ultimately constitute the collective do not suffer time and
again for such crimes. It serves as a deterrent. True it is, on certain
occasions, opportunities may be granted to the convict for reforming
himself but it is equally true that [pic]the principle of proportionality
between an offence committed and the penalty imposed are to be kept in
view. While carrying out this complex exercise, it is obligatory on the
part of the court to see the impact of the offence on the society as a
whole and its ramifications on the immediate collective as well as its
repercussions on the victim.
17. In the instant case the factum of rash and negligent driving has been
established. This court has been constantly noticing the increase in
number of road accidents and has also noticed how the vehicle drivers have
been totally rash and negligent. It seems to us driving in a drunken
state, in a rash and negligent manner or driving with youthful adventurous
enthusiasm as if there are no traffic rules or no discipline of law has
come to the centre stage.
The protagonists, as we perceive, have lost all respect for law. A man
with the means has, in possibility, graduated himself to harbour the idea
that he can escape from the substantive sentence by payment of
compensation. Neither the law nor the court that implements the law should
ever get oblivious of the fact that in such accidents precious lives are
lost or the victims who survive are crippled for life which, in a way,
worse then death. Such developing of notions is a dangerous phenomenon in
an orderly society. Young age cannot be a plea to be accepted in all
circumstances. Life to the poor or the impecunious is as worth living for
as it is to the rich and the luxuriously temperamental. Needless to say,
the principle of sentencing recognizes the corrective measures but there
are occasions when the deterrence is an imperative necessity depending upon
the facts of the case. In our opinion, it is a fit case where we are
constrained to say that the High Court has been swayed away by the passion
of mercy in applying the principle that payment of compensation is a factor
for reduction of sentence to 24 days. It is absolutely in the realm of
misplaced sympathy. It is, in a way mockery of justice. Because justice
is "the crowning glory", "the sovereign mistress" and "queen of virtue" as
Cicero had said. Such a crime blights not only the lives of the victims
but of many others around them. It ultimately shatters the faith of the
public in judicial system. In our view, the sentence of one year as
imposed by the trial Magistrate which has been affirmed by the appellate
court should be reduced to six months.
18. Before parting with the case we are compelled to observe that India
has a disreputable record of road accidents. There is a non-challant
attitude among the drivers. They feel that they are the "Emperors of all
they survey". Drunkenness contributes to careless driving where the other
people become their prey. The poor feel that their lives are not safe, the
pedestrians think of uncertainty and the civilized persons drive in
constant fear but still apprehensive about the obnoxious attitude of the
people who project themselves as "larger than life". In such obtaining
circumstances, we are bound to observe that the lawmakers should
scrutinize, re-look and re-visit the sentencing policy in Section 304A,
IPC. We say so with immense anguish.
19. Resultantly, the appeal is allowed to the extent indicated above and
the respondent be taken into custody forthwith to suffer the remaining
period of sentence.
........................................J.
[DIPAK MISRA]
........................................J.
[PRAFULLA C. PANT]
NEW DELHI
MARCH 30, 2015.
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[1] (2012) 2 SCC 182
[2] (2012) 8 SCC 734
[3] (2013) 7 SCC 545
[4] 2015 (2) SCALE 386
[5] Crl Appeal No. 420 of 2012, decided on 28.11.2014
[6] (2000) 5 SCC 82
[7] (2008) 5 SCC 730
[8] (1979) 4 SCC719
[9] (1987) 1 SCC 538
[10] (1991) 3 SCC 471
[11] (19940 4 SCC 353
[12] (2002) 3 SCC 738
[13] (2005) 5 SCC 554
[14] (2008) 8 SCC 72
[15] (2012) 2 SCC 648
[16] (2006) 2 SCC 359
[17] (2013) 7 SCC 77
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