Protection of Woman from Domestic Violence Act, 2005 – s.25 – Respondent filed an application u/s. 25 of the Act and sought setting aside of order dated 23.02.2015 by which his appellant-wife was granted Rs.12,000/- per month as maintenance and Rs.1,00,000/- towards compensation – Respondent also sought return of the maintenance amount paid on the ground of fraud:

ashoka logo

Supreme Court of India

Digital Supreme Court Reports

The Official Law Report

Fortnightly

ISSN: 3048-4839 (Online)

emblem

Home

 

Go Back

[2024] 10 S.C.R. 45 : 2024 INSC 732

S. Vijikumari v. Mowneshwarachari C

(Criminal Appeal No. 3989 of 2024)

10 September 2024

[B.V. Nagarathna* and Nongmeikapam Kotiswar Singh, JJ.]

Issue for Consideration

Respondent sought refund of the entire maintenance amount which was paid to the appellant (wife of respondent).

Headnotes

Protection of Woman from Domestic Violence Act, 2005 – s.25 – Respondent filed an application u/s. 25 of the Act and sought setting aside of order dated 23.02.2015 by which his appellant-wife was granted Rs.12,000/- per month as maintenance and Rs.1,00,000/- towards compensation – Respondent also sought return of the maintenance amount paid on the ground of fraud:

Held: The Magistrate while exercising his discretion under Section 25(2) of the Act has to be satisfied that a change in the circumstances has occurred, requiring to pass an order of alteration, modification or revocation – The Magistrate has to adjudge the change in the circumstances based on the material put forth by the parties in a case and having regard to the circumstances of the said case – In the instant case, the order dated 23.02.2015 has attained finality – Therefore, there cannot be a setting aside of the order dated 23.02.2015 for the period prior to such an application for revocation being made – The second prayer (for refund of the entire amount of maintenance) was not at all maintainable inasmuch as that any alteration, modification or revocation of an order passed under Section 12 of the Act owing to a change in circumstances could only be for a period ex post facto, i.e., post the period of an order being made in a petition under Section 12 of the Act and not to a period prior thereto – Thus, such an application for alteration, modification or revocation filed under sub-section (2) of Section 25 of the Act cannot relate to any period prior to the order being passed, inter alia, under Section 12 of the Act – Therefore, the prayers sought by the respondent were not maintainable under sub-section (2) of section 25 of the Act. [Paras 13, 17, 18]

Protection of Woman from Domestic Violence Act, 2005 – Applicability of:

Held: The Act is a piece of Civil Code which is applicable to every woman in India irrespective of her religious affiliation and/or social background for a more effective protection of her rights guaranteed under the Constitution and in order to protect women victims of domestic violence occurring in a domestic relationship. [Para 11]

Case Law Cited

Alexander Sambath Abner vs. Miron Lede, 2009 SCC OnLine Mad 2851 – referred to.

List of Acts

Protection of Woman from Domestic Violence Act, 2005; Code of Criminal Procedure, 1898; Code of Criminal Procedure, 1973; Bharatiya Nagarik Suraksha Sanhita, 2023.

List of Keywords

Women victims; Domestic Violence; Section 25 of Protection of Woman from Domestic Violence Act, 2005; Section 12 of Protection of Woman from Domestic Violence Act, 2005; Alteration; Modification; Revocation; Change in circumstance; Refund of amount of maintenance.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 3989 of 2024

From the Judgment and Order dated 06.04.2023 of the High Court of Karnataka at Bengaluru in CRLRP No. 674 of 2022

Appearances for Parties

Ms. Sruti Chaganti, Shekhar Badiger, N. Sai Vinod, Advs. for the Appellant.

Ms. Harsha Tripathi, Balaji Srinivasan, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Nagarathna, J.

Leave granted.

2.Being aggrieved by the order dated 06.04.2023 passed in Criminal Revision Petition No.674/2022 by the High Court of Karnataka at Bengaluru, the appellant who is the wife of the respondent has preferred this appeal.

3.Briefly stated, the facts are that the appellant-wife had filed a petition under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as “the Act”). The said petition, i.e., Criminal Miscellaneous No.6/2014 was allowed by the learned Magistrate by order dated 23.02.2015, granting Rs.12,000/- (Rupees Twelve Thousand only) per month as maintenance and Rs.1,00,000/- (Rupees One Lakh only) towards compensation. At this stage itself, it may be mentioned that the respondent-husband did not let in any evidence in the said proceeding. Being aggrieved by the order of the learned Magistrate, the respondent filed an appeal under Section 29 of the Act which was dismissed by the Appellate Court on the ground of delay. The aforesaid orders attained finality as they were not assailed by the respondent herein.

4.Thereafter, the respondent filed an application under Section 25 of the Act before the learned Magistrate. The said application was dismissed. Being aggrieved, the respondent filed Criminal Appeal No.757/2020 under Section 29 of the Act before the Appellate Court. The said appeal was allowed and the matter was remanded to the learned Magistrate with a direction to consider the application filed by the respondent under Section 25 of the Act, by giving an opportunity to both the parties to adduce their evidence and to dispose of the same in accordance with law.

5.Being aggrieved by the said order, the appellant herein filed Criminal Revision Petition No.674/2022 before the High Court, which, by the impugned order dated 06.04.2023 dismissed the same with a direction to the learned Magistrate to consider the application filed by the respondent under Section 25 of the Act, without being influenced by any observation made by the Appellate Court while disposing of Criminal Appeal No.757/2020.

Being aggrieved by the aforesaid orders, the appellant-wife has filed this appeal.

6.We have heard learned counsel for the respective parties at length.

7.Learned counsel for the appellant, during the course of her submissions, drew our attention to the prayers sought for by the respondent in the application filed under Section 25 of the Act, in light of sub-section (2) of the said Section. She submitted that the application filed under the said provision could be by an aggrieved person seeking alteration, modification or revocation of any order made under the Act and for reasons to be recorded in writing, the learned Magistrate can pass such an order appropriate to the facts of the case. But in the instant case, the respondent is seeking setting aside of the order dated 23.02.2015 passed in Criminal Miscellaneous No.6/2014 and with an additional prayer for seeking return of the entire amount of maintenance paid by the respondent to the appellant on the ground of fraud. Learned counsel for the appellant submitted that such prayers are not maintainable. She contended that the aforesaid application is not for alteration, modification or revocation of an order made under the Act; it is in substance for setting aside of the order dated 23.02.2015 passed in Criminal Miscellaneous No.6/2014; that such an application is not maintainable at all.

8.Learned counsel further submitted that the High Court as well as the Appellate Court were not right in remanding the matter to the learned Magistrate to consider the application filed by the respondent herein under sub-section (2) of Section 25 of the Act. She therefore submitted that the impugned orders may be set aside and the application filed by the respondent may be dismissed and consequently, the earlier order passed on 23.02.2015 in Criminal Miscellaneous No.6/2014 may be given effect to while sustaining the order dated 04.03.2020, by which the application under Section 25 of the Act was dismissed.

9.Per contra, learned counsel for the respondent submitted that the reason as to why the application under Section 25 of the Act was filed was owing to the fact that the appellant herein had misrepresented the fact that she was in need of maintenance whereas she is an employed person and not at all in need of maintenance. The fact that she had said that she was unemployed goes to the root of the matter and hence, despite the order of the learned Magistrate awarding Rs.12,000/- (Rupees Twelve Thousand Only) per month as maintenance having attained finality, an application under Section 25 of the Act was filed seeking revocation of the said order and the Appellate Court as well as the High Court were justified in directing the learned Magistrate to consider the said application.

10.We have considered the arguments advanced at the Bar in light of the facts of this case and Section 25 of the Act. For immediate reference, Section 25 of the Act is extracted as under:

“25. Duration and alteration of orders

(1)A protection order made under section 18 shall be in force till the aggrieved person applies for discharge.

(2)If the Magistrate, on receipt of an application from the aggrieved person or the respondent, is satisfied that there is a change in the circumstances requiring alteration, modification or revocation of any order made under this Act, he may, for reasons to be recorded in writing pass such order, as he may deem appropriate.”

On a reading of the same, it is evident that an aggrieved person or a respondent as defined under the Act can seek for alteration, modification or revocation of an order made under the provisions of the Act if there is a change in the circumstances as per sub-section (2) of Section 25 of the Act. This would indicate that after an order has been made, inter alia, under Section 12 of the Act, such as in the instant case granting Rs.12,000/- as maintenance per month, if there is any change in the circumstance, the same could be a ground for seeking alteration, modification or revocation of such an order. Such circumstances could be illustratively stated in the context of the present case as the wife on divorce having been given an alimony or the wife earning an amount higher than the respondent-husband and, therefore, not in need of maintenance or such other circumstances. The said change in the circumstance must occur only after an initial order is made under Section 12 of the Act and cannot relate to a period prior to the passing of an order under Section 12 of the Act.

11.The Act is a piece of Civil Code which is applicable to every woman in India irrespective of her religious affiliation and/or social background for a more effective protection of her rights guaranteed under the Constitution and in order to protect women victims of domestic violence occurring in a domestic relationship.

12.Section 25(2) of the Act contemplates an eventuality where an order passed under the Act can be altered, modified or revoked. Section 25(2) of the Act provides that the aggrieved person or the respondent, as defined under the Act, may approach the Magistrate by filing an application for alteration, modification or revocation of “any order” made under the Act. Thus, the scope of Section 25(2) of the Act is broad enough to deal with all nature of orders passed under the Act, which may include orders of maintenance, residence, protection, etc. If any such application is filed before the Magistrate by any of the two parties, i.e., the aggrieved person or the respondent, then the Magistrate may, for reasons to be recorded in writing, pass an order as he may deem appropriate. Thus, an order passed under the Act remains in force till the time that order is either set aside in an appeal under Section 29 of the Act, or altered/modified/revoked in terms of Section 25(2) of the Act by the Magistrate.

13.However, the Magistrate while exercising his discretion under Section 25(2) of the Act has to be satisfied that a change in the circumstances has occurred, requiring to pass an order of alteration, modification or revocation. The phrase “a change in the circumstances” has not been defined under the Act. The said phrase was present under Section 489 of the now repealed Code of Criminal Procedure, 1898, as well as under Section 127(1) of the Code of Criminal Procedure, 1973 (CrPC, 1973), now repealed, as is also found under Section 146(1) of the present Bharatiya Nagarik Suraksha Sanhita, 2023 (BNNS, 2023), but the legislature (Parliament) has intentionally not provided a definition for the same in the repealed Codes or the present Sanhita. Thus, the Magistrate has to adjudge the change in the circumstances based on the material put forth by the parties in a case and having regard to the circumstances of the said case. A change in the circumstances under the Act may be of either a pecuniary nature, such as a change in the income of the respondent or an aggrieved person or it could be a change in other circumstances of the party paying or receiving the allowance, which would justify an increase or decrease of the maintenance amount ordered by the Magistrate to pay or any other necessary change in the relief granted by the Magistrate including a revocation of the earlier order. The phrasing of the provision is wide enough to cover factors like the cost of living, income of the parties, etc. Further, a change in the circumstances need not just be of the respondent but also of the aggrieved person. For example, a change in the financial circumstances of the husband may be a vital criterion for alteration of maintenance but may also include other circumstantial changes in the husband or wife’s life which may have taken place since the time maintenance was first ordered.

14.However, for the invocation of Section 25(2) of the Act, there must be a change in the circumstances after the order being passed under the Act. Alexander Sambath Abner vs. Miron Lede, 2009 SCC OnLine Mad 2851 is also to the same effect. Thus, an order for alteration, modification or revocation operates prospectively and not retrospectively. Though the order for grant of a maintenance is effective retrospectively from the date of the application or as ordered by the Magistrate, the position is different with regard to an application for alteration in an allowance, which may incidentally be either an increase or a reduction – to take effect from a date on which the order of alteration is made or any other date such as from the date on which an application for alteration, modification or revocation was made depending on the facts of each case.

15.The position is analogous to Sections 125 and 127 of the CrPC, 1973, wherein the legislature under Section 125(2) of the CrPC, 1973 had given power to the Magistrate to grant maintenance from the date of the application, but did not give any such power under Section 127 of the CrPC, 1973. Therefore, under the Act, the order of alteration or modification or revocation could operate from the date of the said application being filed or as ordered by the Magistrate under Section 25(2) of the Act. Thus, the applicant cannot seek its retrospective applicability, so as to seek a refund of the amount already paid as per the original order.

16.The respondent herein has however sought the following prayers in the application filed under Section 25 of the Act, which read as under:

“WHEREFORE, the petitioner respectfully prays that this Hon’ble Court may be pleased to pass the following orders:

a)Set aside the order dated 23-02-2015 passed in Crl. Mis. 6/2014,

b)In pursuant of that direct the respondent to pay back the entire amount received by her by playing fraud on the court and on petitioner.

c)Direct the respondent to pay the cost of this litigation,

d)Grant such other relief or reliefs on this Hon’ble Court deem fit and proper in the circumstances of the case to meet the ends of justice.”

What the respondent is seeking is in fact a setting aside of the order dated 23.02.2015 passed in Criminal Miscellaneous No.6/2014 and return of the amount paid by him to the appellant herein in terms of the said order by way of a restitution of the status quo ante.

17.Learned counsel for the appellant rightly contended that the said order has in fact merged with the Appellate Court’s order in the appeal filed by the respondent which was dismissed on the ground of delay and there being no further challenge to the said order. In fact, the order dated 23.02.2015 has attained finality. Therefore, there cannot be a setting aside of the order dated 23.02.2015 for the period prior to such an application for revocation being made. Unless there is a change in the circumstance requiring alteration, modification or revocation of the earlier order owing to a change occurring subsequent to the order being passed, the application is not maintainable. Thus, the exercise of jurisdiction under sub-section (2) of Section 25 of the Act cannot be for setting aside of an earlier order merely because the respondent seeks setting aside of that order, particularly when the said order has attained finality by its merger with an appellate order as in the instant case unless a case for its revocation is made out. Secondly, the prayers sought for by the respondent herein are for refund of the entire amount of maintenance that was paid prior to the application under sub-section (2) of Section 25 of the Act being filed and the order dated 23.02.2015 passed in Criminal Miscellaneous No.6/2014 being in fact revoked. The revocation of an order, inter alia, under Section 12 of the Act sought by a party cannot relate to a period prior to such an order being passed. We find that in the instant case the second prayer was not at all maintainable inasmuch as we have already observed that any alteration, modification or revocation of an order passed under Section 12 of the Act owing to a change in circumstances could only be for a period ex post facto, i.e., post the period of an order being made in a petition under Section 12 of the Act and not to a period prior thereto. Thus, such an application for alteration, modification or revocation filed under sub-section (2) of Section 25 of the Act cannot relate to any period prior to the order being passed, inter alia, under Section 12 of the Act.

18.In the circumstances, we find that the prayers sought for by the respondent herein were not at all maintainable under sub-section (2) of Section 25 of the Act as they related to the period prior to 23.02.2015 when the original order was passed. In fact, the prayers sought for by the respondent are totally contrary to the spirit of sub-section (2) of Section 25 of the Act. While making such a prayer, the respondent could not have sought in substance for setting aside of the original order dated 23.02.2015 passed in Criminal Miscellaneous No.6/2014 and seeking refund of the maintenance amount which was paid to the appellant pursuant to the said order. The respondent could not have also sought the aforesaid prayers: firstly, because he did not participate in the proceedings before the learned Magistrate; secondly, respondent belatedly filed an appeal before the Appellate Court which was dismissed and thirdly, when that appeal was dismissed on the ground of delay, he did not choose to assail the said order before a higher forum.

19.In the circumstances, the orders of the High Court as well as the first Appellate Court are set aside and the application filed by the respondent is dismissed. However, liberty is reserved to the respondent herein to file a fresh application under Section 25 of the Act, if so advised. If such an application is filed by the respondent, the same shall be considered by the learned Magistrate having regard to the observations made above and on its own merits, which can be relatable to the period subsequent to the date of making the earlier order dated 23.02.2015 in the instant case. Any revocation of the order dated 23.02.2015 could be with effect from the date of the application, if any, to be made by the respondent herein or as ordered by the learned Magistrate.

20.This appeal is allowed and disposed of in the aforesaid terms.

Pending application(s), if any, shall stand disposed of.

Result of the Case: Appeal allowed.

Top 

About DSCR

Editorial Board

Contact us

Disclaimer

©2024 Supreme Court of India. All Rights Reserved.

Penal Code, 1860 – ss.450, 376(2)(i), 376D, 376A and 302 r/w. s. 34 – Protection of Children from Sexual Offences Act, 2012 – s.5(g)/6 – Appellant contended that the instant case rested on the three dying declarations and a DNA report – The Dying declarations were inconsistent and DNA report pointed presence of a third person – It was also contended that it was not ‘rarest of the rare’ case:

ashoka logo

Supreme Court of India

Digital Supreme Court Reports

The Official Law Report

Fortnightly

ISSN: 3048-4839 (Online)

emblem

Home

 

Go Back

[2024] 10 S.C.R. 37 : 2024 INSC 720

Rabbu @ Sarvesh v. The State of Madhya Pradesh

(Criminal Appeal No(s). 449-450 of 2019)

12 September 2024

[B.R. Gavai,* Prashant Kumar Mishra and K.V. Viswanathan, JJ.]

Issue for Consideration

The appellant was convicted for offences punishable u/ss. 450, 376(2)(i), 376D, 376A and 302 r/w. s.34 of IPC and s.5(g)/6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) awarding death penalty u/ss. 376A and 302 IPC and life imprisonment u/s. 376D of the IPC and rigorous imprisonment for 10 years u/s. 450 of the IPC.

Headnotes

Penal Code, 1860 – ss.450, 376(2)(i), 376D, 376A and 302 r/w. s. 34 – Protection of Children from Sexual Offences Act, 2012 – s.5(g)/6 – Appellant contended that the instant case rested on the three dying declarations and a DNA report – The Dying declarations were inconsistent and DNA report pointed presence of a third person – It was also contended that it was not ‘rarest of the rare’ case:

Held: On perusal of the materials on record, it is found that the dying declaration recorded by the Executive Magistrate (Naib Tehsildar), PW-11, which was endorsed by PW-9- doctor is reliable and trustworthy – The dying declaration recorded by PW-11 is in question-answer form – In the said dying declaration, the deceased clearly implicates the present appellant – The Medical Officer, PW-9, before the commencement of the dying declaration has given an endorsement regarding fit mental status of the deceased to make a declaration and at the end of the dying declaration again he has endorsed that the deceased was in a fit state of mind – The written dying declaration is corroborated by the oral dying declaration as has come on record in the evidence of her grand-father (PW-1), her grand-father’s brother (PW-2), her aunt (PW-13) and her uncle (PW-14) – In the said dying declaration, all the witnesses have clearly stated that the deceased after coming out from the room in flames has narrated the incident about the appellant committing the crime – The statement of the deceased recorded u/s.164 of Cr.P.C. also supports the prosecution case – There is no error in the conviction of the appellant – As far as the question whether the present case falls under the category of ‘rarest of rare case’ is concerned, in the present case, it is to be noted that the appellant comes from a socio-economic backward stratum of the society – He lost his mother and brother at the tender age – The appellant and his family members do not have any criminal background – The appellant was of a tender age of 22 years when the aforesaid incident occurred – It cannot be said that the appellant is a hardened criminal, who cannot be reformed – The possibility of the appellant, if given the chance of being reformed, cannot be ruled out – In view of the matter, the confirmation of the death penalty would not be justified – In facts and circumstances of the case, the death penalty needs to be commuted to fixed imprisonment without remission for a period of 20 years. [Paras 7, 8, 15, 16, 18]

Case Law Cited

Shivu and Another v. Registrar General, High Court of Karnataka and Another [2007] 2 SCR 555 : (2007) 4 SCC 713 : (2007) INSC 136; Purushottam Dashrath Borate and Another v. State of Maharashtra [2015] 5 SCR 1112 : (2015) 6 SCC 652 : (2015) INSC 392; Deepak Rai v. State of Bihar [2013] 14 SCR 297 : (2013) 10 SCC 421 : (2013) INSC 638; Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka [2008] 11 SCR 93 : (2008) 13 SCC 767 : (2008) INSC 853; Shankar Kisanrao Khade v. State of Maharasthra [2013] 6 SCR 949 : (2013) 5 SCC 546 : (2013) INSC 281; Gandi Doddabasappa alias Gandhi Basavaraj v. State of Karnataka [2017] 2 SCR 62 : (2017) 5 SCC 415; Prakash Dhawal Khairnar (Patil) v. State of Maharashtra [2001] Supp. 5 SCR 612 : (2002) 2 SCC 35 : 2001 INSC 606; Mohinder Singh v. State of Punjab [2013] 3 SCR 90 : (2013) 3 SCC 294 : (2013) INSC 61; Madan v. State of Uttar Pradesh [2023] 16 SCR 765 : (2023) SCC OnLine SC 1473; Navas @ Mulanavas v. State of Kerala [2024] 3 SCR 913 : (2024) SCC OnLine SC 315 : 2024 INSC 215 – referred to.

List of Acts

Penal Code, 1860; Protection of Children from Sexual Offences Act, 2012.

List of Keywords

Section 450 of IPC; Section 376(2)(i) of IPC; Section 376D of IPC; Section 376A of IPC; Section 5(g)/6 of POCSO; Dying declarations; Rarest of rare case; Death Penalty; Socio-economic stratum backward; Remission.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 449-450 of 2019

From the Judgment and Order dated 17.01.2019 of the High Court of M.P. Principal Seat at Jabalpur in CRLR No.12 of 2018 and CRLA No. 6748 of 2018

Appearances for Parties

N. Hariharan, Sr. Adv., Ms. Shreya Rastogi, Bhavesh Seth, M.A. Niyazi, Ms. Zehra Khan, Ms. Anauntta Shankar, Sharian Mukherji, Ms. Sana Singh, Ms. Punya Rekha Angara, Advs. for the Appellant.

Bhupendra Pratap Singh, D.A.G., Ms. Mrinal Gopal Elker, Abhimanyu Singh, Abhinav Shrivastava, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

B.R. Gavai, J.

1.Heard Shri N. Hariharan, learned Senior Counsel for the appellant and Shri Bhupendra Pratap Singh, learned Deputy Advocate General appearing on behalf of the State of Madhya Pradesh.

2.These appeals arise out of the judgment and order dated 17.01.2019 passed by the Division Bench of the High Court of Madhya Pradesh at Jabalpur, dismissing the appeal of the appellant and confirming the judgment and order dated 20.08.2018 passed by the First Additional Sessions Judge, Bina, District Sagar (hereinafter referred to as the “Trial Judge”), thereby convicting the appellant for offences punishable under Sections 450, 376(2)(i), 376D, 376A and 302 read with 34 of the Indian Penal Code, 1860 (for short, ‘IPC’) and Section 5(g)/6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO’) awarding death penalty under Sections 376A and 302 IPC and life imprisonment under Section 376D of the IPC and rigorous imprisonment for 10 years under Section 450 of the IPC.

3.Shri Hariharan submits that the present case basically rests on the three dying declarations and the DNA report. He submits that the dying declarations are inconsistent. He further submits that as the time progressed there were improvements in the dying declaration. He therefore submits that in the present case the truthfulness of the dying declarations itself is doubtful and therefore the conviction could not be based on the said dying declarations. He further submits that the DNA report also points out towards the presence of a third person. In such an eventuality, the learned Senior Counsel submits that the order of conviction could not be sustained.

4.Shri Hariharan, in the alternative, submits that the present case is not a ‘rarest of the rare’ case, which would justify awarding death penalty. He further submits that, in the present case, the order convicting the appellant and imposing death penalty were done simultaneously. He submits that the learned Trial Judge also does not consider the balance between the mitigating circumstances and aggravating circumstances while awarding the death penalty. Learned Senior Counsel therefore submits that in the event this Court is not inclined to interfere with the finding of the conviction, in the facts and circumstances of this case and particularly taking into consideration the fact that the appellant lost his mother and brother at a tender age, the socio-economic background of the appellant and the age of the appellant at the time of commission of crime so also his conduct and behaviour in the prison entitle him for commutation of sentence.

5.Shri Bhupendra Pratap Singh, learned Deputy Advocate General (DAG), on the contrary, submits that the learned Trial Judge as well as the High Court, upon appreciation of the evidence, have correctly come to a finding that the present appellant is guilty for the offences committed. He therefore submits that no interference is warranted in the present appeals.

6.Insofar as the prayer made by the learned Senior Counsel for the appellant regarding commutation is concerned, the learned DAG for the respondent-State relies on the following judgments of this Court in the cases of Shivu and Another v. Registrar General, High Court of Karnataka and Another,1 Purushottam Dashrath Borate and Another v. State of Maharashtra,2 and Deepak Rai v. State of Bihar,3 in order to contend that merely the age of the appellant cannot be taken into consideration. He further submits that the appellant taking advantage of the circumstances that the deceased was alone in the house has committed the heinous crime and therefore the present case would squarely fit in the category of ‘rarest of the rare’ cases. He submits that the psychological report would also show that there is no remorse expressed by the appellant. He therefore submits that taking into consideration all these aspects, the death penalty needs to be confirmed.

7.We have perused the material on record and find that the dying declaration recorded by the Executive Magistrate (Naib Tehsildar), PW-11, which was endorsed by Dr. Avinash Saxena, PW-9 is reliable and trustworthy. The dying declaration recorded by PW-11 is in question-answer form. In the said dying declaration, the deceased clearly implicates the present appellant. The Medical Officer, PW-9, before the commencement of the dying declaration has given an endorsement regarding fit mental status of the deceased to make a declaration and at the end of the dying declaration again he has endorsed that the deceased was in a fit state of mind. The written dying declaration is corroborated by the oral dying declaration as has come on record in the evidence of her grand-father Sohan Singh (PW-1), her grand-father’s brother Mukund Singh (PW-2), her aunt Preeti (PW-13) and her uncle Sandeep Singh Rajpoot (PW-14).

8.In the said dying declaration, all the witnesses have clearly stated that the deceased after coming out from the room in flames has narrated the incident about the appellant committing the crime. Not only this, but DW-1-Golu Chaubey who was examined on behalf of the defence has also clearly stated that when the deceased came out of the house, she was shouting that the accused person(s) had committed rape on her and set her on fire. The statement of the deceased recorded under Section 164 of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.) by Smt. Suchita Srivastava, Judicial Magistrate First Class, Sagar (PW-23) also supports the prosecution case. The Dehat Nalishi (Ex. P/28) recorded by Sub Inspector, Anjana Parmaar (PW-16) also narrates the same factual position.

9.In that view of the matter, we do not find that there is any error in the concurrent orders of the Trial Judge and the High Court convicting the appellant for the offences punishable under Sections 450, 376(2)(i), 376D, 376A and 302 read with 34 of the IPC and Section 5(g)/6 of the POCSO.

10.The question that now requires to be considered is as to whether the present case would fall in the category of ‘rarest of rare case’ so as to confirm the death penalty or the sentence could be commuted.

11.We have perused the psychological assessment of the present appellant as conducted by the Department of Psychiatry, NSCB Medical College, Jabalpur, Madhya Pradesh so also the report of the Senior Probation and Welfare Officer, Central Jail, Bhopal, Madhya Pradesh dated 12.06.2023 and the report of the Divisional Officer, Western Division/Assistant Jail Superintendent, Central Jail Jabalpur dated 10.06.2023.

12.In the said reports, it has been found that there is nothing against the behaviour of the appellant herein in the prison. His conduct in the prison has been found to be satisfactory. The reports further reveal that though not allotted any work, the appellant is engaging himself in plantation of trees, cleaning the temple and surrounding area.

13.While considering as to whether the death penalty needs to be confirmed or not, we would be required to take into consideration various factors.

14.It is not in dispute that the appellant lost his mother at the tender age of 8 years and his elder brother at the age of 10 years. The appellant was brought up by his father as a single parent. The appellant has close family ties with his father, his sister, who is married and his grand-mother. Though, Shri Singh is right that the age of the appellant at the time of commission of crime solely cannot be taken into consideration, however the age of the appellant/accused at the time of commission of crime along with other factors can certainly be taken into consideration as to whether the death penalty needs to be commuted or not.

15.In the present case, it is to be noted that the appellant comes from a socio-economic backward stratum of the society. As already discussed hereinabove, he lost his mother and brother at the tender age. The appellant and his family members do not have any criminal background. The appellant was of a tender age of 22 years when the aforesaid incident occurred.

16.It cannot be said that the appellant is a hardened criminal, who cannot be reformed. The possibility of the appellant, if given the chance of being reformed, cannot be ruled out.

17.In that view of the matter, we find that in the present case the confirmation of death penalty would not be justified. However, at the same time we also find that the ordinary sentence of life i.e. 14 years imprisonment with remission would not meet the ends of justice. In our considered view, the present case would fall in the middle path, as laid down by this Court in a catena of judgments, which are as follows:-

i.Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka; 4

ii.Shankar Kisanrao Khade v. State of Maharasthra; 5

iii.Gandi Doddabasappa alias Gandhi Basavaraj v. State of Karnataka; 6

iv.Prakash Dhawal Khairnar (Patil) v. State of Maharashtra; 7

v.Mohinder Singh v. State of Punjab; 8

vi.Madan v. State of Uttar Pradesh; 9

vii.Navas @ Mulanavas v. State of Kerala10

18.We, therefore, find that in the facts and circumstances of the present case, the death penalty needs to be commuted to fixed imprisonment without remission for a period of 20 years.

19.The order of conviction is maintained however the death penalty awarded under Sections 376A and 302 IPC is commuted to rigorous imprisonment for 20 years.

20.The appeals are allowed to the extent indicated above.

21.Pending application(s), if any, shall stand disposed of.

Result of the Case: Appeals allowed.

1 [2007] 2 SCR 555 : (2007) 4 SCC 713 : 2007 INSC 136

2 [2015] 5 SCR 1112 : (2015) 6 SCC 652 : 2015 INSC 392

3 [2013] 14 SCR 297 : (2013) 10 SCC 421 : 2013 INSC 638

4 [2008] 11 SCR 93 : (2008) 13 SCC 767 : 2008 INSC 853

5 [2013] 6 SCR 949 : (2013) 5 SCC 546 : 2013 INSC 281

6 [2017] 2 SCR 62 : (2017) 5 SCC 415

7 [2001] Supp. 5 SCR 612 : (2002) 2 SCC 35 : 2001 INSC 606

8 [2013] 3 SCR 90 : (2013) 3 SCC 294 : 2013 INSC 61

9 [2023] 16 SCR 765 : 2023 SCC OnLine SC 1473

10 [2024] 3 SCR 913 : 2024 SCC OnLine SC 315 : 2024 INSC 215

Top 

About DSCR

Editorial Board

Contact us

Disclaimer

©2024 Supreme Court of India. All Rights Reserved.

Penal Code, 1860 – ss.450, 376(2)(i), 376D, 376A and 302 r/w. s. 34 – Protection of Children from Sexual Offences Act, 2012 – s.5(g)/6 – Appellant contended that the instant case rested on the three dying declarations and a DNA report – The Dying declarations were inconsistent and DNA report pointed presence of a third person – It was also contended that it was not ‘rarest of the rare’ case:

ashoka logo

Supreme Court of India

Digital Supreme Court Reports

The Official Law Report

Fortnightly

ISSN: 3048-4839 (Online)

emblem

Home

 

Go Back

[2024] 10 S.C.R. 37 : 2024 INSC 720

Rabbu @ Sarvesh v. The State of Madhya Pradesh

(Criminal Appeal No(s). 449-450 of 2019)

12 September 2024

[B.R. Gavai,* Prashant Kumar Mishra and K.V. Viswanathan, JJ.]

Issue for Consideration

The appellant was convicted for offences punishable u/ss. 450, 376(2)(i), 376D, 376A and 302 r/w. s.34 of IPC and s.5(g)/6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) awarding death penalty u/ss. 376A and 302 IPC and life imprisonment u/s. 376D of the IPC and rigorous imprisonment for 10 years u/s. 450 of the IPC.

Headnotes

Penal Code, 1860 – ss.450, 376(2)(i), 376D, 376A and 302 r/w. s. 34 – Protection of Children from Sexual Offences Act, 2012 – s.5(g)/6 – Appellant contended that the instant case rested on the three dying declarations and a DNA report – The Dying declarations were inconsistent and DNA report pointed presence of a third person – It was also contended that it was not ‘rarest of the rare’ case:

Held: On perusal of the materials on record, it is found that the dying declaration recorded by the Executive Magistrate (Naib Tehsildar), PW-11, which was endorsed by PW-9- doctor is reliable and trustworthy – The dying declaration recorded by PW-11 is in question-answer form – In the said dying declaration, the deceased clearly implicates the present appellant – The Medical Officer, PW-9, before the commencement of the dying declaration has given an endorsement regarding fit mental status of the deceased to make a declaration and at the end of the dying declaration again he has endorsed that the deceased was in a fit state of mind – The written dying declaration is corroborated by the oral dying declaration as has come on record in the evidence of her grand-father (PW-1), her grand-father’s brother (PW-2), her aunt (PW-13) and her uncle (PW-14) – In the said dying declaration, all the witnesses have clearly stated that the deceased after coming out from the room in flames has narrated the incident about the appellant committing the crime – The statement of the deceased recorded u/s.164 of Cr.P.C. also supports the prosecution case – There is no error in the conviction of the appellant – As far as the question whether the present case falls under the category of ‘rarest of rare case’ is concerned, in the present case, it is to be noted that the appellant comes from a socio-economic backward stratum of the society – He lost his mother and brother at the tender age – The appellant and his family members do not have any criminal background – The appellant was of a tender age of 22 years when the aforesaid incident occurred – It cannot be said that the appellant is a hardened criminal, who cannot be reformed – The possibility of the appellant, if given the chance of being reformed, cannot be ruled out – In view of the matter, the confirmation of the death penalty would not be justified – In facts and circumstances of the case, the death penalty needs to be commuted to fixed imprisonment without remission for a period of 20 years. [Paras 7, 8, 15, 16, 18]

Case Law Cited

Shivu and Another v. Registrar General, High Court of Karnataka and Another [2007] 2 SCR 555 : (2007) 4 SCC 713 : (2007) INSC 136; Purushottam Dashrath Borate and Another v. State of Maharashtra [2015] 5 SCR 1112 : (2015) 6 SCC 652 : (2015) INSC 392; Deepak Rai v. State of Bihar [2013] 14 SCR 297 : (2013) 10 SCC 421 : (2013) INSC 638; Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka [2008] 11 SCR 93 : (2008) 13 SCC 767 : (2008) INSC 853; Shankar Kisanrao Khade v. State of Maharasthra [2013] 6 SCR 949 : (2013) 5 SCC 546 : (2013) INSC 281; Gandi Doddabasappa alias Gandhi Basavaraj v. State of Karnataka [2017] 2 SCR 62 : (2017) 5 SCC 415; Prakash Dhawal Khairnar (Patil) v. State of Maharashtra [2001] Supp. 5 SCR 612 : (2002) 2 SCC 35 : 2001 INSC 606; Mohinder Singh v. State of Punjab [2013] 3 SCR 90 : (2013) 3 SCC 294 : (2013) INSC 61; Madan v. State of Uttar Pradesh [2023] 16 SCR 765 : (2023) SCC OnLine SC 1473; Navas @ Mulanavas v. State of Kerala [2024] 3 SCR 913 : (2024) SCC OnLine SC 315 : 2024 INSC 215 – referred to.

List of Acts

Penal Code, 1860; Protection of Children from Sexual Offences Act, 2012.

List of Keywords

Section 450 of IPC; Section 376(2)(i) of IPC; Section 376D of IPC; Section 376A of IPC; Section 5(g)/6 of POCSO; Dying declarations; Rarest of rare case; Death Penalty; Socio-economic stratum backward; Remission.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 449-450 of 2019

From the Judgment and Order dated 17.01.2019 of the High Court of M.P. Principal Seat at Jabalpur in CRLR No.12 of 2018 and CRLA No. 6748 of 2018

Appearances for Parties

N. Hariharan, Sr. Adv., Ms. Shreya Rastogi, Bhavesh Seth, M.A. Niyazi, Ms. Zehra Khan, Ms. Anauntta Shankar, Sharian Mukherji, Ms. Sana Singh, Ms. Punya Rekha Angara, Advs. for the Appellant.

Bhupendra Pratap Singh, D.A.G., Ms. Mrinal Gopal Elker, Abhimanyu Singh, Abhinav Shrivastava, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

B.R. Gavai, J.

1.Heard Shri N. Hariharan, learned Senior Counsel for the appellant and Shri Bhupendra Pratap Singh, learned Deputy Advocate General appearing on behalf of the State of Madhya Pradesh.

2.These appeals arise out of the judgment and order dated 17.01.2019 passed by the Division Bench of the High Court of Madhya Pradesh at Jabalpur, dismissing the appeal of the appellant and confirming the judgment and order dated 20.08.2018 passed by the First Additional Sessions Judge, Bina, District Sagar (hereinafter referred to as the “Trial Judge”), thereby convicting the appellant for offences punishable under Sections 450, 376(2)(i), 376D, 376A and 302 read with 34 of the Indian Penal Code, 1860 (for short, ‘IPC’) and Section 5(g)/6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO’) awarding death penalty under Sections 376A and 302 IPC and life imprisonment under Section 376D of the IPC and rigorous imprisonment for 10 years under Section 450 of the IPC.

3.Shri Hariharan submits that the present case basically rests on the three dying declarations and the DNA report. He submits that the dying declarations are inconsistent. He further submits that as the time progressed there were improvements in the dying declaration. He therefore submits that in the present case the truthfulness of the dying declarations itself is doubtful and therefore the conviction could not be based on the said dying declarations. He further submits that the DNA report also points out towards the presence of a third person. In such an eventuality, the learned Senior Counsel submits that the order of conviction could not be sustained.

4.Shri Hariharan, in the alternative, submits that the present case is not a ‘rarest of the rare’ case, which would justify awarding death penalty. He further submits that, in the present case, the order convicting the appellant and imposing death penalty were done simultaneously. He submits that the learned Trial Judge also does not consider the balance between the mitigating circumstances and aggravating circumstances while awarding the death penalty. Learned Senior Counsel therefore submits that in the event this Court is not inclined to interfere with the finding of the conviction, in the facts and circumstances of this case and particularly taking into consideration the fact that the appellant lost his mother and brother at a tender age, the socio-economic background of the appellant and the age of the appellant at the time of commission of crime so also his conduct and behaviour in the prison entitle him for commutation of sentence.

5.Shri Bhupendra Pratap Singh, learned Deputy Advocate General (DAG), on the contrary, submits that the learned Trial Judge as well as the High Court, upon appreciation of the evidence, have correctly come to a finding that the present appellant is guilty for the offences committed. He therefore submits that no interference is warranted in the present appeals.

6.Insofar as the prayer made by the learned Senior Counsel for the appellant regarding commutation is concerned, the learned DAG for the respondent-State relies on the following judgments of this Court in the cases of Shivu and Another v. Registrar General, High Court of Karnataka and Another,1 Purushottam Dashrath Borate and Another v. State of Maharashtra,2 and Deepak Rai v. State of Bihar,3 in order to contend that merely the age of the appellant cannot be taken into consideration. He further submits that the appellant taking advantage of the circumstances that the deceased was alone in the house has committed the heinous crime and therefore the present case would squarely fit in the category of ‘rarest of the rare’ cases. He submits that the psychological report would also show that there is no remorse expressed by the appellant. He therefore submits that taking into consideration all these aspects, the death penalty needs to be confirmed.

7.We have perused the material on record and find that the dying declaration recorded by the Executive Magistrate (Naib Tehsildar), PW-11, which was endorsed by Dr. Avinash Saxena, PW-9 is reliable and trustworthy. The dying declaration recorded by PW-11 is in question-answer form. In the said dying declaration, the deceased clearly implicates the present appellant. The Medical Officer, PW-9, before the commencement of the dying declaration has given an endorsement regarding fit mental status of the deceased to make a declaration and at the end of the dying declaration again he has endorsed that the deceased was in a fit state of mind. The written dying declaration is corroborated by the oral dying declaration as has come on record in the evidence of her grand-father Sohan Singh (PW-1), her grand-father’s brother Mukund Singh (PW-2), her aunt Preeti (PW-13) and her uncle Sandeep Singh Rajpoot (PW-14).

8.In the said dying declaration, all the witnesses have clearly stated that the deceased after coming out from the room in flames has narrated the incident about the appellant committing the crime. Not only this, but DW-1-Golu Chaubey who was examined on behalf of the defence has also clearly stated that when the deceased came out of the house, she was shouting that the accused person(s) had committed rape on her and set her on fire. The statement of the deceased recorded under Section 164 of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.) by Smt. Suchita Srivastava, Judicial Magistrate First Class, Sagar (PW-23) also supports the prosecution case. The Dehat Nalishi (Ex. P/28) recorded by Sub Inspector, Anjana Parmaar (PW-16) also narrates the same factual position.

9.In that view of the matter, we do not find that there is any error in the concurrent orders of the Trial Judge and the High Court convicting the appellant for the offences punishable under Sections 450, 376(2)(i), 376D, 376A and 302 read with 34 of the IPC and Section 5(g)/6 of the POCSO.

10.The question that now requires to be considered is as to whether the present case would fall in the category of ‘rarest of rare case’ so as to confirm the death penalty or the sentence could be commuted.

11.We have perused the psychological assessment of the present appellant as conducted by the Department of Psychiatry, NSCB Medical College, Jabalpur, Madhya Pradesh so also the report of the Senior Probation and Welfare Officer, Central Jail, Bhopal, Madhya Pradesh dated 12.06.2023 and the report of the Divisional Officer, Western Division/Assistant Jail Superintendent, Central Jail Jabalpur dated 10.06.2023.

12.In the said reports, it has been found that there is nothing against the behaviour of the appellant herein in the prison. His conduct in the prison has been found to be satisfactory. The reports further reveal that though not allotted any work, the appellant is engaging himself in plantation of trees, cleaning the temple and surrounding area.

13.While considering as to whether the death penalty needs to be confirmed or not, we would be required to take into consideration various factors.

14.It is not in dispute that the appellant lost his mother at the tender age of 8 years and his elder brother at the age of 10 years. The appellant was brought up by his father as a single parent. The appellant has close family ties with his father, his sister, who is married and his grand-mother. Though, Shri Singh is right that the age of the appellant at the time of commission of crime solely cannot be taken into consideration, however the age of the appellant/accused at the time of commission of crime along with other factors can certainly be taken into consideration as to whether the death penalty needs to be commuted or not.

15.In the present case, it is to be noted that the appellant comes from a socio-economic backward stratum of the society. As already discussed hereinabove, he lost his mother and brother at the tender age. The appellant and his family members do not have any criminal background. The appellant was of a tender age of 22 years when the aforesaid incident occurred.

16.It cannot be said that the appellant is a hardened criminal, who cannot be reformed. The possibility of the appellant, if given the chance of being reformed, cannot be ruled out.

17.In that view of the matter, we find that in the present case the confirmation of death penalty would not be justified. However, at the same time we also find that the ordinary sentence of life i.e. 14 years imprisonment with remission would not meet the ends of justice. In our considered view, the present case would fall in the middle path, as laid down by this Court in a catena of judgments, which are as follows:-

i.Swamy Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka; 4

ii.Shankar Kisanrao Khade v. State of Maharasthra; 5

iii.Gandi Doddabasappa alias Gandhi Basavaraj v. State of Karnataka; 6

iv.Prakash Dhawal Khairnar (Patil) v. State of Maharashtra; 7

v.Mohinder Singh v. State of Punjab; 8

vi.Madan v. State of Uttar Pradesh; 9

vii.Navas @ Mulanavas v. State of Kerala10

18.We, therefore, find that in the facts and circumstances of the present case, the death penalty needs to be commuted to fixed imprisonment without remission for a period of 20 years.

19.The order of conviction is maintained however the death penalty awarded under Sections 376A and 302 IPC is commuted to rigorous imprisonment for 20 years.

20.The appeals are allowed to the extent indicated above.

21.Pending application(s), if any, shall stand disposed of.

Result of the Case: Appeals allowed.

1 [2007] 2 SCR 555 : (2007) 4 SCC 713 : 2007 INSC 136

2 [2015] 5 SCR 1112 : (2015) 6 SCC 652 : 2015 INSC 392

3 [2013] 14 SCR 297 : (2013) 10 SCC 421 : 2013 INSC 638

4 [2008] 11 SCR 93 : (2008) 13 SCC 767 : 2008 INSC 853

5 [2013] 6 SCR 949 : (2013) 5 SCC 546 : 2013 INSC 281

6 [2017] 2 SCR 62 : (2017) 5 SCC 415

7 [2001] Supp. 5 SCR 612 : (2002) 2 SCC 35 : 2001 INSC 606

8 [2013] 3 SCR 90 : (2013) 3 SCC 294 : 2013 INSC 61

9 [2023] 16 SCR 765 : 2023 SCC OnLine SC 1473

10 [2024] 3 SCR 913 : 2024 SCC OnLine SC 315 : 2024 INSC 215

Top 

About DSCR

Editorial Board

Contact us

Disclaimer

©2024 Supreme Court of India. All Rights Reserved.

whether all aspirants whose names find place in the revised select list, pursuant to the course correction process, would secure appointment against the notified 1423 posts of Primary Teachers, irrespective of whether they were litigating for appointment.

ashoka logo

Supreme Court of India

Digital Supreme Court Reports

The Official Law Report

Fortnightly

ISSN: 3048-4839 (Online)

emblem

Home

 

Go Back

[2024] 10 S.C.R. 18 : 2024 INSC 733

Khunjamayum Bimoti Devi v. The State of Manipur & Ors.

(Civil Appeal No. 10682 of 2024)

19 September 2024

[Hrishikesh Roy,* Sudhanshu Dhulia and S.V.N. Bhatti, JJ.]

Issue for Consideration

Issue arose whether all aspirants whose names find place in the revised select list, pursuant to the course correction process, would secure appointment against the notified 1423 posts of Primary Teachers, irrespective of whether they were litigating for appointment.

Headnotes

Service law – Appointment/recruitment – Recruitment process for 1423 posts of Primary Teachers – Written examination held and interviews were pending, meanwhile local daily published the result of the selection process when official results were yet to be declared – Enquiry Committee constituted – Government notified 1051 Primary Teachers to be engaged on contract basis – Later clarified that said appointments made was temporary arrangement – Thereafter, official result of the selection notified and 1423 candidates selected for the posts – Appellant and others challenged the selection – High Court condoned the allegation about publication of names of selected candidates in local newspaper – State directed to constitute Review DPC to submit fresh recommendation – Recommendations directed to confine to only unreserved, SC and ST categories and candidates shortlisted in OBC category to be excluded from the fresh select list – Challenge to:

Held: When there is a declaration of law by court, the judgment can be treated as judgment in rem and require equities to be balanced by treating those similarly situated – Thus, as this Court is directing appointments strictly in accordance with merit of the candidates in the recruitment test, as per the revised list, parity relief should be considered for all similarly situated persons – Differential treatment for those who did not approach the Court earlier may not be warranted and would amount to denial of opportunity u/Arts.14 and 16 – Selected candidates are put in limbo waiting for employment for last several years – This Court is quite capable of hearing the selectees, possibly incapacitated to approach the Court by reasons beyond their control – High Court’s judgment to be construed as judgment in rem with intention to give benefit to all similarly situated persons irrespective of whether they were before the Court or not – Whereas, this Court’s judgment is confined only to those covered by the order and should be considered to be judgment in personam – Beneficiaries of this judgment subject to their respective merit position in the revised select list, should be accommodated only against the notified 1423 posts – Appointment to the OBC category candidates was set aside by the High Court and as such these vacancies would be available to accommodate most of the deserving selectees – Appointment ordered for those whose names would figure in the revised select list, strictly in order of merit against the 1423 vacancies notified – Concerned appointees have been serving for over 13 years and disruption of their service may lead to unimaginable hardships, thus, left to the Government’s discretion to take a decision for those who are serving and whose names may not figure in the revised select list, pursuant to the ordered exercise – Judgment by the High Court upheld – State authorities to draw up the revised select list in terms of the High Court’s judgment – Appointment orders for those who figure in the revised select list to be issued. [Paras 21-25, 27, 28]

Service law – Appointment / recruitment – Recruitment process for posts of Primary Teachers – Written test conducted in 2006, and the answer scripts destroyed in 2008 – Allegations of selection being vitiated:

Held: When recruitment for public posts is being made by the State, preservation of the answer scripts till reasonable time after the final declaration of result is the prudent course to adopt – This omission was overlooked which definitely was disappointing for those who failed to qualify in the written test – Since things can’t be undone, it is expected all concerned to be mindful of their responsibility in future recruitments, to preserve the answer scripts till the selection process is successfully completed, to obviate similar such allegation of wrong doings. [Para 9]

Case Law Cited

Uttar Pradesh and Others v. Arvind Kumar Srivastava and Others [2014] 12 SCR 193 : [2015] 1 SCC 347; Shoeline v. Commissioner of Service Tax & Ors. [2017] 8 SCR 582 : [2017] 16 SCC 104 – referred to.

List of Keywords

Revised select list; Appointment; Posts of Primary Teachers; Acquiescence; Recruitment process; Enquiry Committee; Answer scripts for written test destroyed; Practice of weeding out; Treating those similarly situated, similarly; Denial of opportunity; Prolonged recruitment process; Multiple litigations; Judgment in rem; Judgment in personam; Recruitment for public posts; Preservation of answer scripts; Allegation of wrong doings.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10682 of 2024

From the Judgment and Order dated 29.03.2016 of the High Court of Manipur at Imphal in WPC No. 620 of 2011

With

Civil Appeal Nos. 10683, 10684, 10685 and 10686 of 2024, Writ Petition (Civil) No. 817 of 2016 and Writ Petition (Civil) No. 22 of 2017, Civil Appeal Nos. 10687-10688 and 10689-10690 of 2024, Writ Petition (Civil) Nos. 1355 and 1476 of 2020 and Special Leave Petition (Civil) No. 22118 of 2024

Appearances for Parties

Tushar Mehta, Solicitor General, Gopal Sankaranarayanan, V. Giri, K. Parameshwar, Ms. Aparna Bhat, Sanjay Hegde, Anupam Lal Das, N Jotendro Singh, Dr. Joseph Aristotle, Sr Advs., F. I. Choudhury, David Choudhury, Somiran Sharma, Purushottam Sharma Tripathi, Amit, Ravi Chandra Prakash, Ms. Vani Vyas, Ms. Shivani Vij, Prakhar Singh, Ashutosh Dubey, Abhishek Chauhan, Ms. Rajshri A Dubey, H.B. Dubey, Amit P. Shahi, Shashi Bhushan Nagar, Rahul Sethi, Ms. Sona Khan, Sumant A Khan, Mayank Sapra, Ms. Lalima Das, Pratik R. Bombarde, Mohit Bidhuri, Abdulrahiman Tamboli, Jitendra Kumar, Kirti Anand, Abhishek Kumar, Raj Kumar Mehta, Elangbam Premjit Singh, Niraj Bobby Paonam, Ms. Karishma Maria, Yash S. Vijay, Ms. Pooja B. Mehta, Abhisheck Chauhan, Harshad Sunder, Sumant Akram Khan, Amit Kumar, Anshuman Singh, Shah Rukh Ali, Ankit Tiwari, Ms. Tatini Basu, Bharat J Joshi, Kumar Shashank, Ahanthem Henry, Ahanthem Rohen Singh, Mohan Singh, Aniket Rajput, Ms. Khoisnam Nirmala Devi, Kumar Mihir, D. Abhinav Rao, David Ahongsangbam, Sayed Murtaza Ahmed, Rahul Kumar, Rajeev L Mahunta, Ms. Rajkumari Banju, Maibam Nabaghanashyam Singh, K Sita Rama Rao, Shakti K Pattanaik, Sanjeev Kumar Verma, Sandeep Kapoor, M.P. Parthiban, R. Sudhakaran, Bilal Mansoor, Shreyas Kaushal, S. Geyolin Selvam, Alagiri K, Mohit Biduri, Divakar Kumar, Satya Kam Sharma, Garv Bajaj, Advs. for the appearing parties.

Judgment / Order of the Supreme Court

Order

Hrishikesh Roy, J.

1.Delay condoned. Leave granted.

2.Heard Mr. Gopal Sankaranarayanan and Ms. Aparna Bhat, learned senior counsel appearing for the appellants. The State of Manipur is represented by Mr. Tushar Mehta, learned Solicitor General and Mr. V. Giri and Mr. K. Parameshwar, learned senior counsel. Also heard Mr. Anupam Lal Das, learned senior counsel appearing for the already appointed candidates.

3.These matters pertain to the process of recruitment of, inter-alia, 1423 posts of Primary Teachers in the state of Manipur. The recruitment process commenced with the notification dated 12.09.2006 issued by the Employment Officer, Imphal West which required the aspirants to have their names sponsored through the Employment Exchange. The same notice also notified vacancies of 203 Primary Hindi Teachers and 46 Hindi Graduate Teachers, all in the Directorate of Education in Government of Manipur. At the outset, it is made clear that in this order, we are dealing with the case of 1423 Primary Teachers only.

4.For the purpose of this order, the records of Civil Appeal arising out of SLP (Civil) No. 15482 of 2016 together with the convenience compilation filed in the W.P (C) No.817 of 2016 are taken into account to narrate the salient circumstances of the case.

5.On 22.12.2006, the Board of Secondary Education, Manipur (hereinafter referred to as, “the Board”) conducted a written test and the result of the test was declared on 16.04.2007 by the Secretary of the Board indicating that 5322 candidates were successful in the written examination. The interviews for the short-listed candidates were held from 06.02.2009 and continued till August, 2009. At that stage a local daily in Manipur on 26.06.2010, published the result of the selection process when official results were yet to be declared for the subject recruitment. The said newspaper publication led to an Enquiry Committee being constituted by the Government of Manipur to determine whether any illegality has been committed by the Recruitment Committee (referred to as, “the DPC” by the authorities and courts) in the selection process pursuant to notification dated 12.09.2006.

6.Thereafter, on 07.03.2011, the Director (Education), Government of Manipur notified that 1051 Primary Teachers would be engaged on contract basis on remuneration of Rs.7600 per month. The breakup of the list of 1051 appointees was (Gen.-512, OBC–177, ST–322, SC–21 and PH–19). Since most of the names in the notification dated 7.3.2011 were amongst the names published in the local newspaper on 26.06.2010, the leakage of the select list received the attention of the Manipur Legislative Assembly when it was clarified by the Chief Minister of Manipur before the House that the appointments made through the notification dated 07.03.2011 was a temporary arrangement, since the academic session is to commence from April, 2011.

7.As the official result of the selection process was not declared despite the process having commenced on 12.09.2006, some of the aggrieved candidates moved the High Court and pursuant to the order passed by the High Court on 27.07.2011, the result of the selection was notified on 04.09.2011 by the Director of Education, Government of Manipur indicating that 1423 candidates are selected for the 1423 posts of Primary Teachers, in pursuant to the recruitment process which commenced on 12.09.2006.

8.The appellant - Khunjamayum Bimoti Devi and others moved the High Court challenging the selection process. Besides other petitions, the challenge was also made, inter-alia, through the W.P (C) No.815 of 2011 and W.P(C) No.127 of 2012. These writ petitions were taken up for consideration and the learned Judge of the High Court through the common judgment dated 6.10.2015, concluded as follows:-

“[9] In the present case, the selection process can be divided into two parts - one, the part relating to the written examination being conducted by the Board and the second, the rest of the selection process till the end. The first part is the responsibility of the Board and its role was limited to the conduct of written examination only and the moment the result thereof was declared, its role came to an end and it had nothing to do with the rest of the selection process. There is no material on record to show that the Board was instructed by the State Government not to destroy the answer scripts till the completion of the selection process. As has been stated in its affidavit which is not controverted by the petitioners, the Board in its normal course disposes of answer scripts after three months from the date of declaration of result thereof. In the absence of any instruction from the State Government, the Board was not supposed to and could not be expected to keep the answer scripts un-destroyed or preserved for indefinite period when it was not sure as to when the selection process would be completed by the DPC. In the present case, one year after which the Board destroyed the answer scripts, is reasonable time for keeping the answer scripts un-destroyed or preserved. It is understandable if the Board was entrusted to complete the entire selection process but it was not so in the present case. Therefore, keeping in mind the peculiar facts and circumstances, there is no reason as to why this court ought to interfere with the written examination being conducted by the Board, when there was no grievance from any of the unsuccessful candidates against the Board except only the fact that the answer scripts were destroyed before the completion of the selection process which was not in its control and the reasons as to why the answer scripts were to be destroyed, have been narrated above. As regards the interview also, there appears to be no allegation/complain from any of the unsuccessful candidates raising objection against the DPC. The petitioners have not stated in their petition anything about the irregularities, manipulation, arbitrariness committed by the DPC in the viva-voce test. When the select list came to be published in the newspaper, the public suspected the genuineness of it and therefore, it attracted the attention of the Cabinet which directed to constitute a Committee to look into it. At that point of time also, there is no material on record to show that any one demanded that the viva-voce be repeated in the interest of public. The fact that only some of the petitioners approached the Hon’ble High Court praying that the State respondents be directed to make the official declaration of the result, shows that they were not aggrieved by the viva-voce being conducted by the DPC and they wanted only the result to be declared by the State respondents. Accordingly, on the recommendation of the Review DPC, the result of the selection was declared on 04-09-2011. Thus, it can be seen that there is nothing wrong in the selection process upto the stage of viva voce test and therefore, no order can be passed by this court quashing the entire selection process, as prayed for by the petitioners, only on the ground that the answer scripts had been destroyed before the completion of the selection process.

[10] As regards the second issue, the contention of the learned counsel appearing for the petitioners that in the declaration of result, some candidates were shown to have been selected against the seats allegedly reserved for the OBC category which was totally contrary to the Notice dated 12-09-2006, merits consideration by this court. In the said Notice dated 12-09-2006, nothing is mentioned about any seat being reserved for the OBC category and it could not be done also, at that point of time, for the simple reason that admittedly, the Office Memorandum prescribing reservation of seats for the OBC category came to be issued only on 27-12-2006 after the Notice dated 12-09-2006 having been issued by the Employment Officer and even after the written examination having been held by the Board. Moreover, this OM dated 27-12-2006 does not indicate that it would apply retrospectively. There is no material on record to show that after the said OM dated 27-12-2006 having been issued, a decision was taken by the State respondents to make an amendment in the breakup of seats, as detailed in the said notice, allotted amongst the categories by adding OBC category therein and a notice thereof was issued informing the candidates about such amendment. From the perusal of the proceedings of the Review DPC, it appears that it had proceeded on an erroneous assumption that seats were reserved for the candidates belonging to OBC and the DPC had not referred to any order issued by the State respondents, subsequent to the issuance of the said OM, that the OM would apply to the then ongoing selection process after due notice being given to the candidates. The Review DPC, in its proceeding, has merely stated that it has followed the 200 point reservation roster which came to be introduced only after the written examination and the viva-voce test were over.

……. ……... ……… …….. …… ….

As is evident from the above decision of the Hon’ble Supreme Court, an advertisement shall be issued in matters of public employment. The purpose of requiring the issuance of an advertisement is to give wide publicity to the eligible candidates as regards the terms and conditions including the criteria in respect of the details of selection. Any change in the terms and conditions shall be made known to all the candidates so that they could act accordingly. As mandated under Article 16 of the Constitution of India, equal opportunity shall be given to all in matters of public employment. In this regard, the learned counsel appearing for the petitioners has submitted that although almost all the petitioners belong to OBC category, they did not get an opportunity to get their names sponsored as OBC candidates. There is no statement in the writ petition in support of his submission but when he made the submission during the course of hearing, the same was not denied by any of the counsels appearing for the respondents. It may also be noted at this juncture that the grievance of the petitioner in W.P. (C) No. 127 of 2012 is that in spite of her name being sponsored as OBC candidate, she had been treated as unreserved candidate and accordingly, her name was not included in the impugned list of OBC candidates, though she secured more marks than many of the candidates shown in the said OBC list. Thus, it is not clear as to how the candidates were sponsored by the Employment Officer. At the time of getting his/her name sponsored, was the concerned person required to indicate whether he/she belongs to OBC category because by then, the OM dated 27-12-2006 had not yet been issued at all? Or is it the case that the candidates were sponsored by the Employment Officer based on the information furnished by the person concered at the time of registration of his name in the employment exchange and if that be so, why was the petitioner in W.P. (C) No. 127 of 2012 denied the benefit of being OBC candidate. On a query put to the learned Government Advocate by this court in this regard, he was unable to give a concrete answer saying that the Government file was silent about it. No additional affidavit in compliance with the order dated 10-09-2015 passed by this court, has been filed by the State respondents in respect of similar queries. In the present case, in the Notice dated 12-09-2006, it is specifically provided as under:

1)

Primary Teacher

Gen. Category

910

ST

442

SC

29

Phy. Handicapped

42

1423

……. ……. ……. …… …….

It is nowhere mentioned in the said notice that certain seats are reserved for the OBC category and on the contrary, when the result of the selection was declared, the names of as many as 242 candidates were shown to have been selected against the seats reserved for the OBC category. To contend that the criteria cannot be changed after the process for selection has commenced, the learned counsel appearing for the petitioners has placed reliance on the decision of the Hon’ble Supreme Court in the case of Madan Mohan Sharma Vs. State of Rajasthan & ors, reported in AIR 2008 SC 1657 wherein the Hon’ble Supreme Court has held that once the advertisement had been issued on the basis of the circular obtaining at that particular time, the effect would be that the selection process should continue on the basis of the criteria which was laid down and it cannot be on the basis of the criteria which has been made subsequently. The Review DPC had committed error while recommending the candidates belong to OBC category as if there was reservation for them as per the Notice dated 12-09-2006 and the State respondents had blindly accepted the same. In fairness and in order to give equal opportunity, the State respondents ought to have given a notice to all the candidates that the OM dated 27-12-2006 would apply to the then onging selection process and all those candidates, including the petitioners, belonging to OBC category who could not get themselves sponsored as OBC candidates, could have been given an opportunity to do so. In other words, in case certain seats were to be reserved for the OBC, the State respondents must have ensured that all the candidates belonging to OBC category had got themselves sponsored by the Employment Officer. It appears that no such excercise had been done by the State respondents at all in the present case and no opportunity was granted to them. Denial of such opportunity to the petitioners has attracted the provisions of Article 16 of the Constitution of India. Failing to do that, the actions of the State respondents are unreasonable, arbitrary and illegal as being violative of Article 14 and 16 of the Constitution of India. The part of the selection process, as indicated above, i.e., from the stage where the error had crept in, is arbitrary, illegal and is liable to be quashed and in other words, the recommendation of the Review DPC, Notification dated 04-09-2011 and the Government order dated 09-12-2011 are liable to be quashed.

[11] That since this court having held in the preceding para that the selection of as many as 242 candidates as Primary Teachers against the seats reserved for the OBC category, without the same being mentioned in the Notice dated 12-09-2006, is bad and liable to be quashed, no order is required to be passed in this writ petition being W.P. (C) No. 127 of 2012 and accordingly, the writ petition stands disposed of.”

9.The learned Judge in the judgment dated 06.10.2015 noted that for the written test conducted on 22.12.2006, the answer scripts were destroyed on 15.5.2008. The Court however opined that the Board of Secondary Education did not preserve the answer scripts because of paucity of space and also because of the practice followed by the Board for weeding out answer scripts within a fix time frame. When recruitment for public posts is being made by the State, the preservation of the answer scripts till reasonable time after the final declaration of result is the prudent course to adopt. This omission was however overlooked which definitely was disappointing for those who failed to qualify in the written test. Since things can’t be undone, we expect all concerned to be mindful of their responsibility in future recruitments, to preserve the answer scripts till the selection process is successfully completed, to obviate similar such allegation of wrong doings.

10.As can be seen, the High Court condoned the allegation made by the writ petitioner(s) in Writ Petition (C) No.815 of 2011 about the selection being vitiated by publication of names of the selected candidates in the local newspaper, well before the official declaration of result. The learned judge concluded that this by itself will not warrant interference with the selection process. With such findings, the Writ Petition (C) No.815 of 2011 was partly allowed and the recommendation of the Review DPC, the notification dated 04.09.2011 and the related Government Order, were set aside with direction to the State-respondents to constitute a Review DPC to submit fresh recommendation strictly in accordance with the Notification dated 12.09.2006. The recommendations were directed to confine to only the unreserved, SC and ST categories. The candidates shortlisted in the OBC category were directed to be excluded altogether from the fresh select list.

11.The Writ Petition (C) No.620 of 2011 filed by the appellant Khunjamayum Bimoti Devi was disposed of on 29.03.2016 with the declaration that her case is covered by the judgment and order dated 6.10.2015 in the W.P (C) No.815 of 2011 and W.P (C) No.127 of 2012. This judgment of the High Court is under challenge in the Civil Appeal arising out of SLP (Civil) No. 15482 of 2016.

12.When the challenge to the High Court judgment dated 06.10.2015 came to be considered by this Court, an affidavit dated 11.03.2016 came to be filed on behalf of the State of Manipur, by Mr. H. Daleep Singh, Commissioner (Education/S). The said affidavit being of some relevance, is extracted herein below:-

“An Affidavit on behalf of the Respondent No.4

I, H. Deleep Singh, IAS, now serving as Commissioner (Education/S) Government of Manipur, have gone through the contents of the I.A. No. 2 of 2016 and I am acquainted with the facts of the case and having been authorized by the other State Respondents, I am competent to swear this affidavit and accordingly, I swear this affidavit on solemn oath and affirm as hereunder.

1.That, with reference to para Nos. I and II of the above referred I.A., the answering deponent has no comment to offer as the same are the matter of records.

2.That, with reference to para Nos. Ill and IV of the above referred I.A., the answering deponent begs to submit that the Respondent No. 6 to 1428 are the selected candidates for appointment to the post of Primary Teachers and they have been serving as Primary Teachers for the last about 5 years in different Schools under the Department of Education (S), Government of Manipur. On considering the length of service rendered by the Respondent Nos. 6 to 1428, the Government of Manipur is agreeable to accommodate the Writ petitioners against the existing vacancies if the Hon’ble Supreme Court is pleased to protect the appointment of the Respondent Nos. 6 to 1428 and at the same time, the Hon’ble Supreme Court may be pleased to pass an order restraining the unsuccessful candidates who had chosen not to challenge selection process for the last about 5 years to raise any claim in future in order to make the end of litigation on the same issue.

In the light of the above facts and circumstances, it is, therefore, prayed that Your Lordships may graciously be pleased enough to dispose of the above referred I.A. and the connected SLP No. 32728 of 2015 in the lines stated in para No.2 of the present affidavit for the ends of justice.”

13.This Court considered the averments of the Commissioner in the above affidavit and disposed of the challenge to the High Court’s order dated 6.10.2015. The Supreme Court specifically referred to the affidavit (dated 11.3.2016) filed by the State of Manipur and after extracting the contents therein, recorded the following in its order dated 16.03.2016:-

“In the circumstances, we deem it appropriate to record that no further claim at the instance of any other unsuccessful candidate on the basis of the present order and undertaking given by the Government shall be entertained by the High Court.

Shri Dushyant Dave, learned senior counsel for the petitioner in SLP(C) No. 32728/2015 prayed that the respondent-State be directed to issue the appointment orders within a reasonable period of time as per the undertaking of the State referred to above.

In the circumstances, we deem it appropriate to direct the State to issue the appointment orders in favour of the writ petitioners (before the High Court) within a within a period of eight weeks from today.

Pending applications, if any, also stand disposed of.”

14.When this Court disposed of the SLP (Civil) No. 32728 of 2015 and Special Leave Petition (Civil) arising out of CC No. 4129 of 2016, the Court was not informed that other petitions of aggrieved candidates were also pending in Courts. The Bench passed the order on 16.3.2016 oblivious of the fact that multiple petitions challenging the selection process were pending in the High Court. This Court being unaware about the pendency of other petitions filed by other aspirants, had no occasion to address the concern raised in those petitions and thereby observed that further claim at the instance of any other unsuccessful candidates on the basis of the present order and undertaking given by the Government, shall not be entertained by the High Court.

15.In the affidavit dated 11.03.2016 filed by Mr. H. Daleep Singh, Commissioner (Education/S), it was stated that the respondent Nos. 6 to 1428 in the Civil Appeal arising out of SLP (Civil) No. 32728 of 2015, are the selected candidates and they have been serving as primary school teachers. It was also averred in the affidavit that the Government of Manipur is agreeable to accommodate the writ petitioners against the existing vacancies. The Supreme Court in the order dated 16.03.2016 barred appointment of those who had chosen not to challenge the selection process for last about 5 years. Such impression in the Commissioner’s affidavit was not only incorrect factually but the same also gave an impression to this Court that no other petitions were pending in the Courts. Therefore, the right of those aspirants in the pending cases was overlooked and not addressed by this Court in its order dated 16.03.2016.

16.As can be gathered from the judgment dated 06.10.2015, the Manipur High Court set aside the recommendation for appointment to 242 posts carved out for the OBC category candidates. The said pronouncement was not disturbed by the Supreme Court. In fact this Court did not really adjudicate the merits of the challenge to the High Court’s judgment or had occasion to address the appointment claims of those, whose names may appear in the revised select list, in terms of the High Court’s judgment dated 06.10.2015.

17.We have considered the nature of the recruitment process challenged in this proceeding. The inevitable conclusion from the foregoing discussion is that the selection list should be redrawn, in terms of High court’s Judgment dated 06.10.2015. Let us now look at the three categories of candidates claiming selection in the redrawn final list. The first category would be those who have qualified the interview and are already included in the list filed before this Court, the second category would be those who have qualified the interview but are not included in said list and the third category would consist of candidates who have not qualified the interview as such but are admitted as OBC candidates.

18.The selection of the OBC category candidates was found to be unmerited by the High Court. As can be appreciated the notification dated 12.09.2006 for appointment of 1423 primary teachers notified the State’s reservation policy in the following manner-

Primary Teacher

Gen. Category

910

ST

442

SC

29

Phy. Handicapped

42

1423

However, the review DPC noted that by way of the subsequent notification (dated 27.12.2006), the benefit of reservation has been extended to OBC category in the State of Manipur, following the 200-point formula.

19.Some of the selectees (after the revised exercise) may already be serving amongst the OBC category candidates by virtue of their open category merit. They would naturally be accommodated accordingly as per the revised exercise. Some of the selectees (after the revised exercise), could be amongst the appellants/petitioners in these pending cases, who would also be entitled to benefit of selection. Since the appointment to the 242 posts in the OBC category was interfered by the High Court, those posts would now be available for making appointment after the select list is redrawn, in terms of the High Court’s judgment dated 06.10.2015. Since the appellants/petitioners had filed petitions or were agitating their claims for appointment, around the same time as those who secured relief in the WP (C) No.815 of 2011, these claimants in our opinion, also deserve similar consideration.

20.Next, we have to consider those who are not before the Court but are in the category of job seekers, who responded to the notification dated 12.09.2006, succeeded in the written test and also appeared in the interview segment. When the select list is being revised in terms of High Court’s order dated 6.10.2015, new names are bound to figure in the revised select list, as per the respective performance of the candidates, in the recruitment test. The question is whether all aspirants whose names find place in the revised select list, pursuant to the course correction process, will secure appointment against the notified 1423 posts of Primary Teachers, irrespective of whether they were litigating for appointment. Should this Court deny relief to them by considering that there is an element of acquiescence by those, who did not move Court? For answer, we may benefit by referring to the ratio in State of Uttar Pradesh and Others vs. Arvind Kumar Srivastava and Others, reported in (2015) 1 SCC 347 where the following was said:

“22. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under.

22.1. The normal rule is that when a particular set of employees is given relief by the court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.

22.2. However, this principle is subject to well recognized exceptions in the form of latches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.

22.3. However, this exception may not apply in those cases where the judgment pronounced by the court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated persons. Such a situation can occur when the subject-matter of the decision touches upon the policy matters, like scheme of regularization and the like. On the other hand, if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.”

21.The principles laid down in the case of Arvind Kumar Srivastava (supra) are referred by this court in Shoeline vs. Commissioner of Service Tax & Ors.” reported as (2017) 16 SCC 104 to observe that when there is a declaration of law by court, the judgment can be treated as judgment in rem and require equities to be balanced by treating those similarly situated, similarly.

22.Therefore, as this Court is directing appointments strictly in accordance with merit of the candidates in the recruitment test, as per the revised list, we are of the view that parity relief should be considered for all similarly situated persons. A differential treatment for those who did not approach the Court earlier may not be warranted in the facts of the present case, by treating them to be fence sitters and would amount to denial of opportunity under Article 14 and Article 16 of the Constitution of India. One reason for taking such a view is the prolonged recruitment process commencing from 12.09.2006 culminating in the official declaration of result on 04.09.2011, interspersed with multiple litigations by the aggrieved candidates.

23.Also, one cannot ignore that the job seekers who participated in the recruitment test following the Board’s notification dated 22.12.2006 and are selected, are put in limbo waiting for employment for last several years. So far those who are not yet appointed, the door of justice must be opened as this Court is quite capable of hearing the silent knocks of the selectees, possibly incapacitated to approach the Court by reasons beyond their control.

24.That apart, the High Court’s judgment dated 6.10.2015 as earlier stated, must be construed as judgment in rem with intention to give benefit to all similarly situated persons irrespective of whether they were before the Court or not. On the other hand, this Court’s judgment rendered on 16.03.2016 is confined only to those covered by the order and should be considered to be a judgment in personam. For this reason also, the benefit of the High Court’s judgment dated 6.10.2015 should be made available by the State Authorities to everyone as per their respective merit position, in the revised select list, against the notified 1423 posts of Primary Teachers.

25.It is also projected that many more vacancies of primary teachers have since become available. As the recruitment process was initiated on 12.9.2006, vacancies are bound to occur by efflux of time but to order appointment against the later vacancies (beyond the 1423 posts notified on 12.9.2006) will mean, infringing the rights of those who have since become eligible to apply for consideration, for the subsequent vacancies. Therefore, the beneficiaries of this judgment subject to their respective merit position in the revised select list, should in our opinion be accommodated only against the notified 1423 posts. The appointment to the 214 OBC category candidates was set aside by the High Court on 6.10.2015 and the said decision was left undisturbed by the Supreme Court in its judgment dated 16.03.2016 and as such these vacancies will be available to accommodate most of the deserving selectees.

26.Mr. V. Giri, the learned Senior Counsel representing the State of Manipur in the above context informs the Court that the Primary Teachers who were appointed on 09.12.2011 are serving for over 13 years and some of them might have to make way for the selectees. Mr. Anupam Lal Das, the learned senior counsel in his turn submits that the clients he represents were appointed on substantive basis by the Government on 9.12.2011. Despite their long service, a few of them may not find place in the revised select list for adjustment against the 1423 notified vacancies. The submission is that since the cases before the High Court and this Court had continued for over a decade in one form or the other, the appointment of the long serving teachers should be protected.

27.On the above contention of Mr. Giri supported by Mr. Das, we need to observe that appointment is being ordered for those whose names would figure in the revised select list, strictly in order of merit against the 1423 vacancies notified on 12.9.2006. We do appreciate that the concerned appointees have been serving for over 13 years and disruption of their service may lead to unimaginable hardships for this group of people. It is therefore left to the Government’s discretion to take a decision for those who are serving and whose names may not figure in the revised select list, in pursuant to the ordered exercise.

28.In conclusion, the judgment rendered by the High Court on 6.10.2015 in the W.P (C) No.8153 of 2011 and W.P(C) No.127 of 2012 are upheld. In consequence, the appeals/writ petitions filed by the aspirant teachers stand disposed of and those filed by the State of Manipur stand dismissed. The State authorities must draw up the revised select list in terms of the High Court’s judgment within 4 weeks from today. The appointment orders for those who figure in the revised select list are ordered to be issued, within 4 weeks of the publication of the select list. By virtue of such appointments, the fresh appointees shall have no claim towards arrears salary. But they shall be granted benefit of notional appointment w.e.f. 9.12.2011 when the substantive appointments were given to those who are serving but this notional benefit is ordered only for the purpose of superannuation benefits. It is ordered accordingly.

29.Pending application(s), if any, including impleadment/intervention application(s) stand closed.

SPECIAL LEAVE PETITION (CIVIL) No. of 2024 (ARISING OUT OF DIARY NO. 20462 OF 2021)

1.Delay condoned.

2.In view of the today’s order passed in Civil Appeal arising out of SLP (Civil) No. 15482 of 2016, the Special Leave Petition stands dismissed.

3.Pending application(s), if any, shall stand closed.

Result of the Case: Matters disposed of.

Top 

About DSCR

Editorial Board

Contact us

Disclaimer

©2024 Supreme Court of India. All Rights Reserved.

Under what circumstances could the power be invoked for further investigation and whether on the facts, further investigation was warranted.

ashoka logo

Supreme Court of India

Digital Supreme Court Reports

The Official Law Report

Fortnightly

ISSN: 3048-4839 (Online)

emblem

Home

 

Go Back

[2024] 10 S.C.R. 1 : 2024 INSC 746

K. Vadivel v. K. Shanthi & Ors.

(Criminal Appeal No. 4058 of 2024)

30 September 2024

[B.R. Gavai and K.V. Viswanathan,* JJ.]

Issue for Consideration

Under what circumstances could the power be invoked for further investigation and whether on the facts, further investigation was warranted.

Headnotes

Code of Criminal Procedure, 1973 – s. 178(3) – Further investigation – Applications filed by the first respondent for directing the State to conduct further investigation or re-investigation by examining the related occurrence and eyewitnesses of the crime mentioned in the application and submit additional/supplementary charge-sheet – Dismissed by the trial court holding that further investigation cannot be ordered at the post cognizance stage – However, the High Court allowed the application – Correctness:

Held: Contextual facts and the attendant circumstances have to be singularly evaluated and analyzed to decide the needfulness of further investigation or re-investigation to unravel the truth and mete out justice to the parties – However, the further investigation cannot be permitted to do a fishing and roving enquiry when the police had already filed a charge-sheet and the very applicant for further investigation, has not whispered about anything new in her evidence as is now sought to be averred in the application – There must be some reasonable basis which should trigger the application for further investigation so that the court is able to arrive at a satisfaction that ends of justice require the ordering/permitting of further investigation – Though power to order further investigation is a significant power it has to be exercised sparingly and in exceptional cases and to achieve the ends of justice – On facts, the direction for further investigation absolutely unwarranted – Ordering the additional charge sheet to be taken on record at this stage pursuant to the further investigation will not be in accordance with law – All the stakeholders in the process have contributed to the delay and in spite of eleven years having elapsed after the incident, the trial has still not concluded – High Court allowed the further investigation without giving valid justification for the same – Denial of speedy and timely justice can be disastrous to rule of law in the long term – Even if the parties involved in a case themselves, with no valid justification attempt to delay the proceedings, the courts need to be vigilant and stop such attempt instantly – Any proceeding or application which prima facie lacks merit should not be instituted in a court – Pleadings/petitions with outrageous and ex facie unbelievable averments are made with no inhibition whatsoever – These directly impinge on the rule of law, because they add to the pendency and the consequential delay in the disposal of other cases – Such frivolous and vexatious proceedings to be met with due sanctions in the form of exemplary costs to dissuade parties from resorting to such tactics – Thus, the judgment of the High Court set aside as also application filed by the respondent no. 1 before the trial court for further investigation u/s. 173(8) – In view thereof, the additional charge sheet would not be taken on record. [Paras 32, 33, 35, 37, 38, 43-47]

Case Law Cited

Vinubhai Haribhai Malaviya & Ors. v. State of Gujarat & Anr. [2019] 15 SCR 936 : [2019] 17 SCC 1; Pooja Pal v. Union of India & Ors. [2016] 11 SCR 560 : [2016] 3 SCC 135; Ram Lal Narang v. State (Delhi Administration) [1979] 2 SCR 923 : [1979] 2 SCC 322; Hasanbhai Valibhai Qureshi v. State of Gujarat & Ors. [2004] 3 SCR 762 : [2004] 5 SCC 347; Vinay Tyagi v. Irshad Ali alias Deepak & Ors. [2013] 5 SCC 762; Devendra Nath Singh v. State of Bihar & Ors. [2023] 1 SCC 48; Himanshu Kumar and Others v. State of Chhattisgarh and others [2022] 11 SCR 724 : [2022] SCC OnLine SC 884 – referred to.

List of Acts

Code of Criminal Procedure, 1973.

List of Keywords

Further investigation; Re-investigation; Charge-sheet; Inherent powers; Delay; Rule of law; Denial of speedy and timely justice; Frivolous and vexatious proceedings; Sanctions; Exemplary costs; Additional charge sheet.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 4058 of 2024

From the Judgment and Order dated 30.04.2021 of the High Court of Judicature at Madras at Madurai in CRLRC (MD) No. 533 of 2020

Appearances for Parties

Jayanth Muth Raj, Sr. Adv., Purushothaman Reddy, Shivansh Dubey, Vinodh Kanna B., Advs. for the Appellant.

Amit Anand Tiwari, Sr. A.A.G., S. Nagamuthu, Sr. Adv., M.P. Parthiban, R. Sudhakaran, Bilal Mansoor, Shreyas Kaushal, S. Geyolin Selvam, Alagiri K, Sabarish Subramanian, Ms. Devyani Gupta, Vishnu Unnikrishnan, C. Kranthi Kumar, Danish Saifi, B. Sarathraj, Chandra Bhushan Tiwari, Kaustubh Shukla, Sanket Vashistha, Ms. Samridhi Srivastava, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

K.V. Viswanathan, J.

1.Leave granted.

2.The present appeal mounts a challenge to the judgment and order dated 30.04.2021 of the Madurai Bench of the Madras High Court in Criminal R.C. (MD) No.533 of 2020. By the said judgment, the High Court has, by a cryptic order, and long after final arguments had been concluded on 19.10.2019 in the trial court, ordered further investigation in the matter. The aggrieved accused is before this Court with a grievance that the direction was not justified in law particularly when already an attempt by the wife of the deceased to summon certain witnesses under Section 311 of the Criminal Procedure Code, 1973 (Cr.P.C.) had been rebuffed by the Trial Court and the High Court as early as in December 2019.

3.The question that arises for consideration is whether the High Court was, on the facts of the case, justified in ordering further investigation?

4.The basic facts essential for adjudication of the present controversy are as follows:-

5.On 31.03.2013, a First Information Report (FIR) being Crime No. 27 of 2013 was registered on the complaint given by one Padikasu (subsequently examined as PW-1) stating that when he along with the deceased Kumar were doing their morning walk around 5:00 AM and were returning back, three persons alighted from a car with weapons and hacked to death, the deceased Kumar.

6.On 11.07.2013, a final report was filed setting up eight accused for trial, including the appellant.

7.On 20.12.2016, PW-1 - Padikasu was examined. He testified that among the two persons who alighted from the car to attack Kumar, Ganapathy had a sickle in his hand; upon seeing them he began to run; that he phoned the family of deceased Kumar and spoke to the son of the deceased. PW-1 testified that he had not seen the hacking. He further testified that within five to ten minutes, the family members of Kumar came to the place and that he went to the Police Station at 6:45 AM and gave the complaint.

8.PW-1-Padikasu was declared hostile and sought to be cross-examined by the prosecution. In the cross-examination he denied the suggestion that he had told the Police that he saw Ganapathy and Vadivel (appellant) hacking the deceased and Chinnaraja (the other accused) stabbing the deceased with a spear. On a question by the Court, he reiterated that he saw Ganapathy among the persons who alighted having a sickle and since he was perturbed and began to run though he saw others, he was not in a position to identify them. His deposition was recorded on 20thof December 2016.

9.Thereafter, on 18th of March 2017, the first respondent Shanthi - wife of the deceased was examined. She corroborated the phone call received from PW-1 and also stated that PW-1 told her that Ganapathy, Vadivel (appellant) and Karthick were the accused who hacked her husband with sickle and that while Chinnaraj and Selvaraj stabbed her husband with spear-stick, Madhavan, Murugan and Palaniyappan caught hold of her husband. She also testified that when after receiving the phone call she went to the place of the incident with Sathappa Subramanian and Subramanian, her brothers-in-law and that her own brothers also accompanied her. On 18.03.2017 itself, PW-3, Subbaiah and PW-4, Duraimurugan were examined.

10.On 25.07.2019, PW-1 - Padikasu was recalled at the behest of accused A1 and A2 wherein he stated that he did not specifically state to the Police about A1 Ganapathy being present in the place of occurrence and that he had only stated that three unidentified persons had attacked the deceased. He further added that he mentioned about A1 Ganapathy only on account of the Police threatening him.

11.On 19.10.2019, on the conclusion of the trial, final arguments were heard, and the case was fixed for filing of written arguments.

12.At this stage, on 22.10.2019, Respondent No. 1 (examined as PW-2/wife of the deceased) filed Crl. M.P.No.245 of 2019 under Section 311 of the Cr.P.C. She contended that PW-1 - Padikasu has given false evidence; that the Investigating Officer has failed to enquire the proper eye-witnesses; that the direct eye-witnesses to the occurrence-K. Ganesh S/o Kumar, P. Karmegam S/o Periyakaruppan, K. Rajendran S/o Kasi, Sembulingam S/o Padikasu and C. Andiappan S/o Chinnaiah have not been examined and that they deserve to be summoned. According to the application filed by respondent No. 1, these witnesses would speak about the cell phone recovered by the Police from the occurrence spot and that the cell phone was of Nokia Brand holding the sim of Vodafone company which belonged to her. She averred that the Police failed to produce the material object and that the cell phone and call details ought to have been produced by the Police. In view of the above, she prayed that the additional witnesses be summoned and examined.

13.The accused opposed the Section 311 petition by pointing out the delay of 6 years and 9 months in filing the petition and also about respondent No.1 (PW-2) not whispering about any of these facts during her examination. They contended that the persons sought to be examined were none other than her son, brother, brothers-in-law and other close relatives.

14.The State also filed its response opposing the application by averring that when the statement of Respondent No. 1 was recorded nothing was mentioned by her and that during the investigation also nothing of the nature as alleged now was forthcoming; that even while being examined as PW-2 the applicant had not mentioned these facts; that no phone was seized and no sim card was seized and that investigation was properly conducted and final report filed.

15.On 29.11.2019, the Trial Judge dismissed the application filed by respondent No. 1. The Court observed that the application was filed after the examination of the prosecution witnesses had concluded and when the case was posted for questioning the accused under Section 313. That respondent No. 1 was already examined as PW-2 on 18.03.2017 and that on that day itself, together with her, Subbaiah alias Subramanian and Duraimurugan were also examined as PW-3 and PW-4 respectively. The Court observed that though the power under Section 311 is available to the Court to reach a just decision, it cannot be exercised unless the facts and circumstances of the case make it apparent as otherwise it would result in causing serious prejudice to the accused resulting in miscarriage of justice. The Court observed that though the power is available, it has to be exercised judiciously and not arbitrarily.

16.The first respondent, vide Crl. O.P (MD) No. 18701 of 2019, challenged the order dated 29.11.2019 dismissing the petition under Section 311 Cr.P.C. before the High Court. The State vehemently opposed the said petition by reiterating its contention in the courts below. The High Court, by its order of 16.12.2019, dismissed Crl. O.P. (MD) No. 18701 of 2019 holding in its operative portion as follows:

“9. It is seen that P.W.1 is the person who stated to have accompanied the deceased victim at the time of occurrence. He had been examined by the respondent police. He had not stated anything as if the occurrence was witnessed either by other persons other than him. He was examined in chief before the trial court on 18.03.2017. On that date also, he has not spoken about the occurrence having been witnessed by any other persons other than him. Further, during cross examination, he has also resiled from his earlier statement. P.W.2 has been examined in chief on 18.03.2017. She has also not spoken about the additional witnesses having seen the occurrence or that they have been left out by the prosecution to be added as witnesses in the final report. Further, after final report has been filed on 11.07.2013, if it is true that the eyewitnesses have been left out, she would have filed the petition for further investigation even at that time, which has also not been done. Therefore, this Court is of the opinion that the petition is filed much belatedly only for the purpose of delaying the trial.

10. In view of the above, this Court does not find any infirmity in the order passed by the trial Judge. Accordingly, this Criminal Original Petition is dismissed.”

17.Taking a cue, as it were, from the observations of the High Court that the first respondent would have filed a petition seeking for further investigation at that time if eyewitnesses have been left out, the first respondent in January, 2020 filed Cr. M.P. No 40/2020 in S.C. No. 61/2014 before the Court of the Additional District and Sessions Judge with a prayer for directing the State to conduct further investigation or reinvestigation by examining the related occurrence and eyewitnesses of the crime mentioned in the application and submit additional (or) supplementary charge-sheet. In the application, it was averred that the Investigating Officer had failed to enquire Kattarimani who had accompanied her husband-deceased Kumar and also had failed to examine proper eyewitnesses; that PW-1 Padikasu had given false statements and evidence and that Padikasu had expressed fear and mentioned about the threatening influences of the accused and other pressures brought by the accused; that investigation has been carried out in a haphazard manner; that there is lack of collection of material evidence; that the cell phone used by PW-1 Padikasu and the cell phone of deceased Kumar has not been properly secured and placed for tracing the call details. That non-examination of R. Natarajan, M. Muthu, S. Ramasamy who are the occurrence witnesses and eye witnesses K. Ganesan S/o Late Kumar, P. Karmagan S/o Periyakaruppan, K. Rajendran S/o Kasi, Sembulingam S/o Padikasu and C. Audiappan S/o Chinnaiah are designed at the behest of the inspector of police.

18.It will be noticed from the application that insofar as the eyewitnesses, who according to the first respondent were not enquired, the names are common as mentioned in her earlier Section 311 application. Under the category of occurrence witnesses, she has added three names which surfaced for the first time in this application. This aspect will be considered later in this judgment.

19.The application was strongly opposed by the accused. The accused, in their counter, averred that the application was not maintainable without the consent of the public prosecutor and that the misconceived application was intended to fill up the lacunae in the prosecution; the allegation that any threat to witnesses were denied and it was contended that no such complaint was made in the last seven years about any such threats being administered and even on 18.03.2017 when the respondent no. 1 (PW-2) along with her brothers PW-3 and PW-4 were examined, no such complaint was made. The accused further averred that further investigation cannot be ordered at the post cognizance stage either suo moto or at the instance of victims/complainants and it can only be done at the behest of the investigating agency. The accused further averred that after the section 311 Cr.P.C. petition, namely, Crl. O.P. (MD) No. 18701 of 2019 was dismissed even Section 313 Cr.P.C. examination had been concluded and thereafter the accused had concluded oral arguments and filed written arguments. So contending, they had prayed for the dismissal of the petition for further investigation.

20.The State also opposed the application stating that the case has been investigated properly and charge-sheet filed; that the respondent no. 1 has recorded her statement and her earlier application to examine additional witnesses has been dismissed and that the present application is only with an intent to drag the proceeding.

21.The trial court dismissed the petition for further investigation by its order of 23rd July, 2020. The trial court held that the respondent no. 1 (PW-2) in her examination on 18.03.2017 in court did not speak anything as to about what she is mentioning now in the application. That final report was filed as early as on 11.07.2013 and if her contention is correct, she would have filed a petition for further investigation at that very time. The trial court further held that further investigation cannot be ordered at the post cognizance stage either suo moto or at the instance of victims/complainants or at the instance of anyone else except the investigating agency and that the petition was only filed to prolong the proceeding.

22.The respondent No. 1 filed a criminal revision before the High Court to which the accused filed a counter reiterating the contentions. By the impugned order, without any discussion whatsoever and holding the following in the operative portion, the High Court allowed the application:

“10. It is seen that an opportunity to examine additional witness was not given by this Court on the ground that the petitioner has not filed a petition for further investigation. In the above circumstances, dening (sic.) a relief of further investigation may cause prejudice to the petitioner. It is stated that P.W.1 turned hostile. This is a murder case. For the above reasons, it is decided that further investigation is necessary. The order passed in Crl.M.P.No.40 of 2020 in S.C.No.61 of 2014 dated 23.07.2020 on the file of the learned Additional District Judge, Pudukottai is set aside. The investigation agency is hereby directed to take up the case for further investigation and to complete the investigation, after examining all the witnesses referred by the petitioner and to file a additional chargesheet within a period of three months.

11. On receipt of the additional chargesheet, the trial Court is directed to frame charges afresh and to proceed with the trial and to dispose of the case as expeditiously as possible.”

23.The present Special Leave Petition has been filed on 14.03.2022. By an order of 16.08.2022, this Court, while issuing notice, stayed the operation of the impugned order. It appears that before the filing of the Special Leave Petition, the additional charge-sheet also came to be prepared on 02.12.2021.

24.We have heard Mr. Jayanth Muth Raj, learned senior advocate, for the appellant as well as Shri Amit Anand Tiwari, learned Additional Advocate General, for the State as well as Shri S. Nagamuthu, learned senior advocate, for the respondent No. 1 (wife of the deceased).

25.The learned senior counsel for the appellant contends that the present application filed by respondent no. 1 is a disguised attempt to reopen the earlier proceedings under Section 311 which attained finality; that after framing of charges, respondent no. 1, who is not a complainant, cannot file an application for further investigation under Section 173(8) of Cr.P.C.; that the trial court had no jurisdiction to entertain the application under Section 173(8) of Cr.P.C. after framing of charges; that no grounds have been made out for further investigation and that the High Court ought not to have interfered with the order of trial court in the exercise of its revisional jurisdiction. Learned senior counsel relied on several judgments of this Court to support the contentions.

26.The learned Additional Advocate General for the State and the learned senior counsel for the respondent no. 1 strongly defended the impugned order. They contended that the interest of justice is paramount and it will even trump the need to avoid any delay being caused in the proceedings; that the investigating agency has carried out further investigation in compliance with the impugned order and prepared the additional charge-sheet on 02.12.2021 bringing out certain new facts and material; that no prejudice is caused to the defence as the material will be furnished to the accused persons and they will have ample opportunity to put forth their defence. To support their stand, learned senior counsel referred to several precedents.

27.We have carefully considered the submissions of the learned counsels for the parties, perused the records as well as written submissions filed by them.

28.The legal position on the aspect of further investigation is fairly well settled. Under the Code of Criminal Procedure, 1973, pursuant to the recommendation of the Law Commission, in its 41st Report, Section 173(8) has been expressly engrafted setting at rest any controversy that may have obtained earlier. Section 173(8) reads as under:

“173(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).”

29.The question really is, under what circumstances could this power be invoked and whether on the facts of this case, is a further investigation warranted.

30.There was some debate at the Bar as to whether the Addl. District and Sessions Judge before whom the application was filed by the respondent no. 1 under Section 173(8) after the conclusion of the evidence could have ordered further investigation. The premise of the argument was even though in the present case the Addl. District and Sessions Judge has not ordered and it was the High Court which had ordered it, while exercising jurisdiction under Section 397 read with 401 of Cr.P.C. The contention was that as per the law laid down by this Court in Vinubhai Haribhai Malaviya & Ors. vs. State of Gujarat & Anr. (2019) 17 SCC 1, further investigation could at best have been ordered till the commencement of the trial.

31.In the present case, though the Trial Judge rejected the application, the High Court has ordered further investigation. Considering the fact that we are inclined to set aside the order of the High Court, on merits, we deem it unnecessary to discuss the issue of jurisdiction.

32.Ultimately, the contextual facts and the attendant circumstances have to be singularly evaluated and analyzed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties (see Pooja Pal vs. Union of India & Ors. (2016) 3 SCC 135, para 83). As noticed in Ram Lal Narang vs. State (Delhi Administration) (1979) 2 SCC 322, (para 20) where fresh materials come to light which would implicate persons not previously accused or absolve persons already accused or where it comes to the notice of the investigating agency that a person already accused of an offence has a good alibi, it may be the duty of the investigating agency to investigate the genuineness of the same and submit a report to the court.

33.However, the further investigation cannot be permitted to do a fishing and roving enquiry when the police had already filed a charge-sheet and the very applicant for further investigation, in this case respondent no. 1, has not whispered about anything new in her evidence as is now sought to be averred in the application. There must be some reasonable basis which should trigger the application for further investigation so that the court is able to arrive at a satisfaction that ends of justice require the ordering/permitting of further investigation. In Hasanbhai Valibhai Qureshi vs. State of Gujarat & Ors., (2004) 5 SCC 347), this Court held as under:-

“13. In Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322] it was observed by this Court that further investigation is not altogether ruled out merely because cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case.”

34.In Vinay Tyagi vs. Irshad Ali alias Deepak & Ors., (2013) 5 SCC 762, this Court dealing with the aspect of the power of Magistrate to direct further investigation had the following to say:

“41. …..The power of the Magistrate to direct “further investigation” is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code.”

35.It is essential to note that this Court emphasized that though power to order further investigation is a significant power it has to be exercised sparingly and in exceptional cases and to achieve the ends of justice (see Devendra Nath Singh vs. State of Bihar & Ors., (2023) 1 SCC 48, para 45). Whether further investigation should or should not be ordered is within the discretion of the Magistrate and the said discretion is to be exercised on the facts of each case in accordance with law. This Court also held that in an appropriate case, where the High Court feels that the investigation is not in the proper direction and to do complete justice where the facts of the case so demand, the inherent powers under Section 482 Cr.P.C. could be exercised to direct further investigation or even reinvestigation. This Court reiterated the principle that even under Section 482 Cr.P.C. the wide powers are to be exercised fairly with circumspection and in exceptional cases.

36.In Himanshu Kumar and Others vs. State of Chhattisgarh and others, 2022 SCC OnLine SC 884 dealing with the prayer for transfer of investigation to CBI, this Court had the following to say:

“47. ….We are conscious of the fact that though a satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or re-investigation, submission of the charge sheet ipso facto or the pendency of the trial can, by no means, be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analyzed to decide the needfulness of further investigation or re-investigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of law should be to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency.”

37.Applying the above law to the facts of the present case, we find that for the following reasons the direction for further investigation is absolutely unwarranted:-

i.The application for further investigation was filed in January 2020 by respondent no. 1. The charge sheet under Section 173 Cr.P.C. too had been filed as early as on 11.07.2013.

ii.On 20th December, 2016, PW-1 Padikasu was examined, he was recalled and cross-examined on 25.07.2019.

iii.Respondent No. 1 (who is the applicant for further investigation) herself was examined on 18.03.2017. There is no whisper in her deposition about what she now seeks to contend in the application for further investigation. There was nothing that had prevented her from deposing in the box about any failure of the investigating officer, to enquire Kattarimani or any person concerned; about R. Natrajan, M. Muthu and S. Ramasamy being occurrence witnesses and about K.Ganesan S/o Late Kumar, P. Karmagan S/o Periyakaruppan, K. Rajendran S/o Kasi, Sembulingam S/o Padikasu and C. Audiappan S/o Chinnaiah being eye witnesses, and about how such failure has caused prejudice.

iv.In fact, seeking the examination of these five witnesses mentioned hereinabove, first respondent filed application under Section 311 Cr.P.C. which came to be dismissed by the trial court on 29.11.2019 and was confirmed by the High Court. The application under Section 311 Cr.P.C. itself was filed on 22.10.2019, that is after a period of about six years after the filing of the charge-sheet.

v.It is only when the High Court dismissed her petition under Section 311 Cr.P.C. stating that she had not made any prayer for further investigation that she filed the present application in January, 2020. At the stage when she filed the application for further investigation, the accused had concluded oral arguments and had also filed written arguments.

vi.The trial court dismissed the application stating that the respondent no. 1 when examined as PW-2 did not speak anything about what she had mentioned in her application and that though the final report was filed as early as on 11.07.2013, respondent no. 1 has filed the application for further investigation only in January, 2020. Though, the trial court held that no further investigation could be ordered at the post cognizance stage, we have, as explained above, not proceeded on that reasoning, since that is clearly erroneous.

vii.The High Court has not recorded any reason whatsoever and has not set out any legal principle which is relevant and applicable to the facts. All that is said is the Section 311 petition of the respondent no. 1 has been denied on the ground that she has not filed a petition for further investigation; that denial of relief would cause prejudice to respondent no. 1; that PW-1 has turned hostile and that being a murder case, it is decided to order for further investigation. Not one of the legal principles adverted to hereinabove has been considered by the Court.

viii.As pointed out hereinabove, the failure to claim further investigation at that stage was not the only basis for the High Court to reject the revision against the dismissal of the Section 311 application. The High Court had given other detailed reasons also like PW-1 and PW-2 not whispering about the additional witnesses, when they deposed in Court.

38.We are convinced that ordering the additional charge sheet to be taken on record at this stage pursuant to the further investigation will not be in accordance with law. It will be contrary to the settled principles as laid down by this Court. We have also to satisfy ourselves examined the additional charge sheet placed before us. Primarily, apart from explaining the motive which is already set out in the evidence of PW-2, there is a reference to three of these witnesses named in this application as having come to rescue of the deceased after hearing the noise raised by the deceased. It is now alleged that A-5 tried to prevent the said two witnesses from approaching Kumar and threatened them with the sickle. It is also alleged that at that point these witnesses saw A-1 and A-4 committing overt acts on the deceased.

39.As pointed out earlier, when the application under Section 311 Cr.P.C. was filed on 22.10.2019, the State, in its response and in the arguments before the Court vehemently opposed the application. Even before the High Court in the Revision filed against the dismissal of the application under Section 311 Cr.P.C., the Additional Public Prosecutor appearing for the State had expressly contended that the respondent no. 1 was examined more than five times by the investigating officer and even in her deposition in court had not adverted to any of these aspects.

40.Before the trial court and the High Court in the present set of proceedings concerning the application for further investigation, the State had opposed the prayer contending that the investigation of the case has been done properly and charge-sheet had been duly filed arraigning all the allegedly involved individuals.

41.It is only in this Court that the State has vehemently defended the order. A counter affidavit was filed by the State in this Court in September, 2024 without offering any tenable justification for the need for further investigation. We direct that for all these reasons the additional charges ought not to be taken on the record of the trial Court.

42.A brief postscript. While it is true that delay in trial will cede to the pursuit of truth, however, a distinction should be made between cases where there exist genuine grounds to hold up the proceedings and cases where such grounds do not exist. This case is a classic example of the latter category. The FIR was filed on 31.03.2013 and the charge-sheet on 11.07.2013. At the fag end of the trial in October 2019, on the eve of the final arguments, the first round of applications under Section 311 of Cr.P.C. came to be filed, which culminated in its dismissal in December, 2019.

43.Soon thereafter in January, 2020, virtually the same grounds which had been rejected earlier were rehashed in the form of an application under Section 173(8) Cr.P.C. on behalf of the respondent no. 1. The State, which had hitherto opposed all the applications up to the High Court, turned turtle and stoutly supported the respondent no. 1 in this Court without offering any tenable justification as to how the earlier investigation which had arrayed eight accused for trial lacked credibility.

44.The net result has been that all the stakeholders in the process have contributed to the delay and in spite of eleven years having elapsed after the incident, the trial has still not concluded. No doubt, the High Court allowed the further investigation which we have today reversed. The judgment of the High Court also gave no valid justification for ordering a further investigation.

45.The victims of crime, the accused, and the society at large have a legitimate expectation that justice will be available to the parties within a reasonable time. It is beyond cavil that speedy and timely justice is an important facet of rule of law. Denial of speedy and timely justice can be disastrous to rule of law in the long term. Even if the parties involved in a case themselves, with no valid justification attempt to delay the proceedings, the courts need to be vigilant and nip any such attempt in the bud instantly. The administration of justice feeds on the faith of the citizenry and nothing should be done to even remotely shake that faith and confidence.

46.The legal profession has an important role to play in the process. Any proceeding or application which prima facie lacks merit should not be instituted in a court. We are constrained to observe this because of late we notice that pleadings/petitions with outrageous and ex facie unbelievable averments are made with no inhibition whatsoever. This is especially so in some family law proceedings, both civil and criminal. Reading some of the averments therein, we are left to wonder whether at all the deponents were conscious of what has been written purportedly on their behalf, before appending their signatures. These misadventures directly impinge on the rule of law, because they add to the pendency and the consequential delay in the disposal of other cases which are crying for justice. It is time that such frivolous and vexatious proceedings are met with due sanctions in the form of exemplary costs to dissuade parties from resorting to such tactics. If we have desisted from such a course in this case, it is only because the High Court allowed the petition and it is here that we have, reversing the High Court, dismissed the petition for further investigation.

47.In view of what has been stated hereinabove, we set aside the judgment of the High Court dated 30.04.2021 in Criminal RC (MD) No. 533 of 2020. Consequently Cr. M.P. No 40/2020 in S.C. No. 61/2014 filed by the respondent no. 1 before the Court of Additional District and Sessions Judge for further investigation under Section 173(8) Cr.P.C. would stand dismissed. We further direct that, in view of the dismissal of the application, the additional charge sheet dated 02.12.2021 will not be taken on record. The appeal is, accordingly, allowed.

48.We direct that after hearing arguments of parties afresh, the trial should be concluded and judgment pronounced within eight weeks from today.

Result of the Case: Appeal allowed

Top 

About DSCR

Editorial Board

Contact us

Disclaimer

©2024 Supreme Court of India. All Rights Reserved.