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Saturday, September 29, 2012

there is no reason to reject the same, on the other hand, the trial Court has rightly accepted their testimonies. 11) Insofar as the delay in lodging of FIR is concerned, it is true that the incident occurred at 7 a.m. on 19.01.1992 and the deceased died at around 7:30 p.m. on the same day and, thereafter, the complaint was lodged to the police. Taking note of the fact that the above mentioned prosecution witnesses made all attempts to save the life of the deceased by taking him to the nearest hospital through a bullock cart and they also sustained injuries, we are of the view that the said delay cannot affect the prosecution case. 12) It is the claim of the appellants that though the deceased was alive for nearly about 12 hours, no attempt was made to record his dying declaration. It is true that no declaration was made and recorded. The prosecution witnesses mentioned above clearly stated that throughout the day, the Nagoba (the deceased) was unconscious. In view of the categorical statement and the position of the deceased till his death, the prosecution cannot be blamed for not recording his dying declaration. 13) Insofar as the injuries sustained by some of the accused are concerned, it is seen from the evidence of Dr. D. Trimabak (PW-2) that those injuries are minor in nature. This Court on various occasions has held that in the case of minor injuries, merely because the prosecution has not furnished adequate reasons, their case cannot be rejected. Considering the fact that the injuries sustained by some of the accused were minor in nature, even in the absence of proper explanation by the prosecution, we hold that the prosecution story cannot be disbelieved. 14) The above analysis clearly shows that among the number of accused, at least two accused persons, namely, A-1 and A-2 were armed with sticks and A- 7 was armed with axe. Dr. Kishore (PW-1), the Doctor who conducted the post mortem has stated in his evidence that “in my opinion, cause of death was shock due to head injury with multiple injuries over the body.” He further deposed that “the injury Nos. 4-6 and 8-10 were caused by hard and blunt object. Those were possible by a weapon like stick. Injury No. 7 was possible by means of sharp weapon like an axe. Internal injury mentioned in Column No. 19 of post mortem report corresponds to Injury No. 19 mentioned in Column No. 17.” Finally, he opined that “probable cause of death was primarily head injury associated with other multiple injuries.” The prosecution witnesses established that head injury was at the instance of A-7 and other injuries all over the body were at the instance of A-1 and A-2 by means of axe and sticks respectively. 15) Taking note of the same and the evidence of the doctor (PW-1) who conducted the post mortem, namely, the cause of death, we are satisfied that the prosecution has proved its case beyond reasonable doubt in respect of A-1 and A-2 (appellants herein) and A-7 who assaulted the victim and inflicted multiple injuries and shared common intention. 16) In the light of the above discussion, we fully agree with the conclusion arrived at by the trial Court and affirmed by the High Court, consequently, both the appeals are dismissed.

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                                     REPORTABLE                         IN THE SUPREME COURT OF INDIA                        CRIMINAL...

The policy of allocation of natural resources for public good can be defined by the legislature, as has been discussed in the foregoing paragraphs. Likewise, policy for allocation of natural resources may also be determined by the executive. The parameters for determining the legality and constitutionality of the two are exactly the same. In the aforesaid view of the matter, there can be no doubt about the conclusion recorded in the “main opinion” that auction which is just one of the several price recovery mechanisms, cannot be held to be the only constitutionally recognized method for alienation of natural resources. That should not be understood to mean, that it can never be a valid method for disposal of natural resources (refer to paragraphs 10 to 12 of my instant opinion). I would therefore conclude by stating that no part of the natural resource can be dissipated as a matter of largess, charity, donation or endowment, for private exploitation. Each bit of natural resource expended must bring back a reciprocal consideration. The consideration may be in the nature of earning revenue or may be to “best subserve the common good”. It may well be the amalgam of the two. There cannot be a dissipation of material resources free of cost or at a consideration lower than their actual worth. One set of citizens cannot prosper at the cost of another set of citizens, for that would not be fair or reasonable.- NOW THEREFORE, in exercise of powers conferred upon me by clause (1) of Article 143 of the Constitution of India, I, Pratibha Devisingh Patil, President of India, hereby refer the following questions to the Supreme Court of India for consideration and report thereon, namely: Q.1 Whether the only permissible method for disposal of all natural resources across all sectors and in all circumstances is by the conduct of auctions? Q.2 Whether a broad proposition of law that only the route of auctions can be resorted to for disposal of natural resources does not run contrary to several judgments of the Supreme Court including those of Larger Benches? Q.3 Whether the enunciation of a broad principle, even though expressed as a matter of constitutional law, does not really amount to formulation of a policy and has the effect of unsettling policy decisions formulated and approaches taken by various successive governments over the years for valid considerations, including lack of public resources and the need to resort to innovative and different approaches for the development of various sectors of the economy? Q.4 What is the permissible scope for interference by courts with policy making by the Government including methods for disposal of natural resources? Q.5 Whether, if the court holds, within the permissible scope of judicial review, that a policy is flawed, is the court not obliged to take into account investments made under the said policy including investments made by foreign investors under multilateral/bilateral agreements? Q.6 If the answers to the aforesaid questions lead to an affirmation of the judgment dated 02.02.2012 then the following questions may arise, viz. (i) whether the judgment is required to be given retrospective effect so as to unsettle all licences issued and 2G spectrum (800, 900, and 1800 MHz bands) allocated in and after 1994 and prior to 10.01.2008? (ii) whether the allocation of 2G spectrum in all circumstances and in all specific cases for different policy considerations would nevertheless have to be undone? And specifically iii) Whether the telecom licences granted in 1994 would be affected? iv) Whether the Telecom licences granted by way of basic licences in 2001 and licences granted between the period 2003-2007 would be affected? v) Whether it is open to the Government of India to take any action to alter the terms of any licence to ensure a level playing field among all existing licensees? vi) Whether dual technology licences granted in 2007 and 2008 would be affected? vii) Whether it is necessary or obligatory for the Government of India to withdraw the Spectrum allocated to all existing licensees or to charge for the same with retrospective effect and if so on what basis and from what date? Q.7 Whether, while taking action for conduct of auction in accordance with the orders of the Supreme Court, it would remain permissible for the Government to: (i) Make provision for allotment of Spectrum from time to time at the auction discovered price and in accordance with laid down criteria during the period of validity of the auction determined price? (ii) Impose a ceiling on the acquisition of Spectrum with the aim of avoiding the emergence of dominance in the market by any licensee/applicant duly taking into consideration TRAI recommendations in this regard? iii) Make provision for allocation of Spectrum at auction related prices in accordance with laid down criteria in bands where there may be inadequate or no competition (for e.g. there is expected to be a low level of competition for CDMA in 800 MHz band and TRAI has recommended an equivalence ratio of 1.5 or 1.3X1.5 for 800 MHz and 900 MHz bands depending upon the quantum of spectrum held by the licensee that can be applied to auction price in 1800 MHz band in the absence of a specific price for these bands)? Q.8 What is the effect of the judgment on 3G Spectrum acquired by entities by auction whose licences have been quashed by the said judgment? NEW DELHI; DATED: 12 April 2012 PRESIDENT OF INDIA”

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