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( Founder : Late Sri G.S. GUPTA)

FORTNIGHTLY(Estd: 1975)

Law ummaryR e g d . N o . P R A K A S A M / 1 3 / 2 0 1 5 - 2 0 1 7 R . N . I . N o . A P E N G / 2 0 0 4 / 1 5 9 0 6

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2017 Vol.(3) Date of Publication 15-12-2017 PART - 23

Associate Editors:

ALAPATI VIVEKANANDA, Advocate

ALAPATI SAHITHYA KRISHNA, Advocate

Editor:

A.R.K.MURTHY, Advocate

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( Founder : Late Sri G.S. GUPTA)

FORTNIGHTLY(Estd: 1975)

Law ummary

PART - 23 (15TH DECEMBER 2017)

Table Of Contents

Interested Subscribers can E-mail their Articles to

[email protected]

Journal Section .............................................................................................. 51 to 54

Reports of A.P. High Court ...................................................................... 235 to 290

Reports of Madras High Court ...................................................................... 77 to 86

Reports of Supreme Court ......................................................................... 87 to 92

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NOMINAL - INDEX

SUBJECT - INDEX

Abdul Rafeeq & Ors. Vs. State of Telangana & Ors., (Hyd.) 235Addepalli Bhaskar Rao Vs. Karmanchi Anil Kumar & Anr., (Hyd.) 276

Asharfi Vs. State of Uttar Pradesh (S.C.) 90Madasu Rambabu Vs. The State of A.P., (Hyd.) 283Mathesh Vs. State (Madras) 77Nitya Dharmananda @ K.Lenin & Anr., Vs Sri Gopal Sheelum Reddy & Anr., (S.C.) 87Smt.P. Vijaya Laxmi Vs. Smt.S.P.Sravana & Anr. (Hyd.) 253

ANDHRA PRADESH RIGHTS IN LAND AND PATTADAR PASS BOOKS ACT,Sec.9 - Writ petition – Respondents 4 to 6 filed revision before the Joint Collector tocarryout corrections of illegal entry in the old ROR in respect of their land and furthercontended that they are the rightful owners of the land.

Writ Petitioners opposed the claim on ground that there was no sale as claimedby them and sale deed was a false document - Objection of petitioners before JointCollector, that no decision shall be made in the revision as there was pending suitbefore a Civil Court was rejected holding that same suit was for perpetual injunctionand no injunction orders were granted by the Court and allowed the revision and orderedto restore the name of respondents – Hence this Writ petition.

Held – As there was no adjudication of title dispute, the decision of revisionalauthority does not amount to decision made on title dispute – No error in the revisionalauthority exercising quasi-judicial power under section 9 of the Act, merely becausesuit is pending on a prayer to grant perpetual injunction – Contentions on title/ownership and possession are left to be agitated in pending suit or other proceedings - Writpetition is dismissed. (A.P.) 235\\

CIVIL PROCEDURE CODE, Secs.47 & 151 - Civil Revision Petition is filed againstthe Order of Trial Court which allowed the Application of respondent by setting asidethe sale – Revision petitioner contends that Court below has erroneously allowed theApplication as Sec.47 of CPC has no application since 1st respondent is not a partyto the suit.

Held – 1st respondent is neither a decree holder nor auction purchaser in the

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Subject-Index 3auction conducted by Court below – No material on record or evidence to the effectthat any fraud or illegality is played by petitioner while purchasing EP schedule propertyin the auction conducted by Court below – Having participated in the auction and havingkept quite at that time, 1st respondent/ third party cannot question the auction saleof EP schedule property by way of an Application u/Sec.47 r/w 151 of CPC – Impugnedorder of Court below is set aside and Civil Revision is allowed. (Hyd.) 276

CRIMINAL PROCEDURE CODE, Sec.91 - INDIAN PENAL CODE, Sec.376 -Respondent approached High Court with the prayer that entire material available withthe investigator, which was not made part of the charge sheet, ought to be summonedu/Sec.91 of Cr.P.C. – Said Application was allowed.

Held - While ordinarily the Court has to proceed on the basis of material producedwith the charge sheet for dealing with the issue of charge but if the Court is satisfiedthat there is material of sterling quality which has been withheld by the investigator/prosecutor, the Court is not debarred from summoning or relying upon the same evenif such document is not part of a charge sheet – It does not mean that the defencehas a right to invoke Sec.91 of Cr.P.C. de hors the satisfaction of the Court, at thestage of charge - Appeal preferred by the appellants to set aside the view taken bythe High Court is allowed. (Hyd.) 87

NEGOTIABLE INSTRUMENTS ACT, Sec.138 – Whether complainant in a

complaint case u/Sec.138 of the NI Act is victim as defined u/Sec.2(wa) of Cr.P.C.

– If so, is he entitled to file an appeal invoking the proviso u/Sec. 372 of Cr.P.C. before

the court to which an appeal lies against conviction – If not, whether complainant in

a complaint case u/Sec.138 of NI Act and also for any other offence either bailable

or non- bailable is required to file an appeal against acquittal in a complaint case seeking

special leave of the court u/Sec.378(4) of Cr.P.C.

Held - An offence u/Sec.138 of N.I Act would only be a ‘summons case’ whereinno charge requires to be framed and as the accused in a cheque-dishonour case isnot charged, the complainant in such a case, though may suffer loss and injury bythe omission of the accused to pay his dues, cannot be brought within the ambit ofa ‘victim’ as defined u/Sec. 2(wa) of Cr.P.C – Such a complainant would not be entitledto avail the remedy of an appeal under proviso to Sec.372 of Cr.P.C. and must continueto avail special remedy to appeal provided u/Sec.378(4) of Cr.P.C after obtaining thespecial leave. (Hyd.) 252

(INDIAN) PENAL CODE, Secs.302, 304-B & 498-A - CRIMINAL PROCEDURECODE, Sec.374(2) –Criminal Appeal - Husband/Accused is found guilty of murder ofhis wife and demanding additional dowry.

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4 Subject-IndexHeld – A charge u/Sec. 304-B, IPC ought to have been framed against the

accused – Therefore, in the Interest of Justice, the accused be charged and tried u/Sec.304-B IPC at this stage – It may be noted that u/Sec.304-B, IPC it is not necessaryto establish a homicidal death for proving the offence of dowry death – It is sufficientif the death of the woman is otherwise than under the normal circumstances – As theaccused was never charged with an offence u/Sec. 304-B, IPC and did not have theopportunity to rebut the same, it would be appropriate if Sessions Court frame the chargeat this stage and give him an opportunity to meet it – Sessions Court shall permitprosecution to adduce additional evidence, oral and documentary and appellant shallbe permitted to recall any of the witnesses already examined for further cross-examination– Criminal Appeal allowed partly. (Hyd.) 283

(INDIAN)PENAL CODE, Sec. 201 and 302 - Appellant/Accused has challengedthe legality of the conviction and sentence passed by the Trial Court against him -Case of the prosecution rests upon circumstantial evidence.

Held – If the case of the prosecution rests upon circumstantial evidence, itis bounden duty of prosecution to link the chain of circumstances unerringly to connectthe accused for the commission of offence, but they have miserably failed to do so– Circumstance of last seen together does not by itself necessarily lead to inferencethat it was accused who committed the crime but there must be something more toconnect the accused with the crime and to point out guilt of accused and none else- There are very many gaps and holes in the case projected by the prosecution andthe chain of circumstances to link the accused with the commission of offence is notat all complete and therefore, benefit of doubt shall endure in favour of the appellant- Criminal appeal is allowed – Conviction recorded and sentence imposed on appellantis set aside. (Madras) 77

SC/ST PREVENTION OF ATROCITIES ACT, Sec.3(2)(V) - INDIAN PENALCODE, Secs.323, 376(2)(g) and 450 – Post amendment of the SC/ST Act, mere knowledgeof the accused that the person upon whom the offence is committed belongs to SC/ST community suffices to bring home the charge under Section 3(2)(v) of the Act.

In the instant case so far as conviction U/S 376(2)(g), IPC is not interfered- Since unamended provisions of the SC/ST Act are applicable in the present caseand evidence and materials on record do not show that appellant had committed rapeon victim on the ground that she belonged to SC/ST community, the same cannot besustained – Accused already undergone imprisonment for more than ten years, appellantis ordered to be released forthwith. (S.C.) 90

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A NOTE ON PLEADINGS IN CIVIL CASES

By Y. Srinivasa Rao,M.A(English)., B.Ed., LL.M,

Senior Civil Judge, Avanigadda, Krishna Dt.

Introduction:

Pleadings avow basic positions of the parties in a civil suit. There are the circular ordersand administrative instructions are being issued from time to time for the guidance of allthe subordinate Civil Courts by the respective High Courts. As to pleadings of civil suitsare concerned, it is seminal to refer to Order 6 the Code of Civil Procedure,1908 (CPC).‘’Pleading’’ shall mean plaint or written statement as seen from Order 6 Rule 1 CPC. Allplaints, written Statements and other proceedings presented to the court, shall be written,type written or printed, fairly and legible on stamped paper or on substantial foolscap foliopaper. For example, a plaint shall be headed with a cause-title, as in Form No.1 of AndhraPradesh Civil Rules of Practice (CRP). Certain Form of Proceedings are set out in Chapter-II of the Civil Rules of Practice for the guidance of all the subordinate Civil Courts. Forinstance, when a document produced with any pleading appears to be defaced, torn, or inany way damaged, or where its condition or appearance required special notice, a note ofits condition and appearance shall be made on the list of documents by the party producingthe same and should be checked and initialed, if correct, by the receiving officer. The ruleis that civil cases are decided on the basis of preponderance of evidence. See. SyedAskari’s, 2009 (3) SCALE 604). Of course, there are instances that defendant drags theproceedings without filing his written satement for months together. If defendant wasdeliberately delaying the proceedings and had failed to assign good and sufficient causefor not filing the written statement, the Court could forfeit his right of defence. See. Smt.Sushila Jain vs. Rajasthan Finacial Corporation Jaipur, AIR 1979 Raj 215.

Pleadings are very crucial:

Generally, pleadings shall contain the following factors as was provided in Order 6 ofCPC. No pleading shall, except by way of amendment, raise any new ground of claim orcontain any allegation of fact inconsistent with the previous pleadings of the party pleadingthe same. As to material contents of a document, it shall be sufficient in any pleading tostate the effect thereof as briefly as possible, without setting out the whole or any partthereof, unless the precise words of the document or any part thereof are material. Everypleading shall be signed by the party and his pleader (if any). where a party pleading is,by reason of absence or for other good cause, unable to sign the pleading, it may besigned by any person duly authorized by him to sign the same or to sue or defend on hisbehalf. It is advised to go through Order 6 of CPC.

Sections 40, 41, and 42 Indian Evidence are irrelevant. :

Significantly enough, Section 43 of the Evidence Act categorically states that judgments,orders or decrees, other than those mentioned in Sections 40, 41, and 42 are irrelevant,unless the existence of such judgment, order or decree, is a fact in issue, or is relevantunder some other provisions of the Act. No other provision of the Indian Evidence or for

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that matter any other statute has been brought to our notice.

Some discussion about Sections 40, 41, and 42 Evidence Act is importantbecause in M/s Karam Chand Ganga Prasad & anr. etc. vs. Union of India & ors, (1970)3 SCC 694, wherein it was categorically held that the decisions of the civil courts will bebinding on the criminal courts but the converse is not true, was overruled, stating:

“33. Hence, the observation made by this Court in V.M. Shah case thatthe finding recorded by the criminal court stands superseded by thefinding recorded by the civil court is not correct enunciation of law. Further,the general observations made in Karam Chand case are in context ofthe facts of the case stated above. The Court was not required to considerthe earlier decision of the Constitution Bench in M.S. Sheriff case aswell as Section 40 to 43 of the Evidence Act.”

Facts admitted need not be proved

See. section 58 of Indian Evidence Act. This section postulates that things admitted neednot be proved.This principle was laid down in Avtar Singh and Ors. vs. Gurdial Singh andOrs, (2006) 12 SCC 269. Also see. Gannamani Anasuya and Ors., vs. Parvatini AmarendraChowdary and Ors, (2007) 10 SCC 296; Balraj Taneja & Anr vs. Madan & Anr.

A thing admitted in view of Section 58 of the Indian Evidence Act need not be proved.Order VIII Rule 5 of the Code of Civil Procedure provides that even a vague or evasivedenial may be treated to be an admission in which event the court may pass a decree infavour of the plaintiff. Relying on or on the basis thereof a suit, having regard to theprovisions of Order XII Rule 6 of the Code of Civil Procedure may also be decreed onadmission. It is one thing to say that without resiling from an admission, it would bepermissible to explain under what circumstances the same had been made or it wasmade under a mistaken belief or to clarify one’s stand inter alia in regard to the extent oreffect of such admission, but it is another thing to say that a person can be permitted tototally resile therefrom. See. (2008) 2 SCC 85.

An admission made in a pleading is not to be treated in thesame manner as an admission in a document. An admissionmade by a party to the lis is admissible against him propriovigore. See. Gautham Sarup vs. Leela Jetly, (2008) 2 SCC 85.

Effect of an admission :

Curiously enough, the law as regards the effect of an admission is also no longer resintegra. Whereas a party may not be permitted to resile from his admission at a subsequentstage of the same proceedings, it is also trite that an admission made contrary to lawshall not be binding on the State. See. (2007) 1 SCC 457, State Of Haryana & Ors vs M.P.Mohla.

Preponderance of probabilities :

Civil cases are decided on the basis of preponderance of evidence.Ref: Syed Askari HadiAli Augustine Imam and Anr vs. State (Delhi Admn.) and Anr, 2009 (3) SCALE 604. In this

52 LAW SUMMARY 2017(3)

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contenxt, it is seminal to see that indeed, proof of facts by preponderance of probabilitiesas in a civil case is not foreign to criminal jurisprudence as was held in AIR 1978 SC 961,State (Delhi Administration) vs Sanjay Gandhi. It is observed in G.Vasu’s case,AIR 1987AP 139, a fact is said not to be proved when it is neither proved nor disproved. It will beseen that the words ‘proved’ and ‘disproved’ are closely connected with the theory of‘preponderance of probabilities.”

Evidence is to be given only on a plea :

The ordinary rule of law is that evidence is to be given only on a plea properly raised andnot in contradiction of the plea.” The Supreme Court in the case of Mrs. Om Prabha JainVs. Abnash CHand and Anr, 1968 AIR 1083. The evidence to be admitted cannot travelbeyond the pleadings. See. Harihar Prasad Singh And Ors vs Balmiki Prasad Singh AndOrs, 1975 AIR 733, 1975 SCR (2) 932. As was pointed out in evidence adduced beyondthe pleadings would not be admissible nor can any evidence be permitted to be adducedwhich is at variance with the pleadings. See. AIR 1966 SC 773, Dr.Jagjit Singh Vs.GainiKartar Singh.

Is not a judgment of a civil court binding on a criminal court ?

A judgment in a criminal case, thus, is admissible for a limited purpose. relying only on oron the basis thereof, a civil proceeding cannot be determined, but that would not meanthat it is not admissible for any purpose whatsoever. See. Seth Ramdayal Jat vs. LaxmiPrasad, Civil Appeal no. 2543/2009, Arising out of SLP (Civil) No. 23441/2007, dt.15-04-2009. Axiomatically, if judgment of a civil court is not binding on a criminal court, a judgmentof a criminal court will certainly not be binding on a civil court. Basically, civil cases aredecided on the basis of preponderance of evidence while in a criminal case the entireburden lies on the prosecution and proof beyond reasonable doubt has to be given. Thereis neither any statutory provision nor any legal principle that the findings recorded in oneproceeding may be treated as final or binding in the other, as both the cases have to bedecided on the basis of the evidence adduced therein (Ref. AIR 1954 SC 397, M.S.Sheriff’scase). A judgment of a civil court shall be binding on the criminal court as was held inShanti Kumar Panda vs. Shakuntala, (2004) 1 SCC 438. It is well-settled that in a givencase, civil proceedings and criminal proceedings can proceed simultaneously. Whethercivil proceedings or criminal proceedings shall be stayed depends upon the fact andcircumstances of each case. See. AIR 2008 SC 1884, P. Swaroopa Rani vs M. HariNarayana @ Hari Babu. Also see. (2005) 4 SCC 370,Iqbal Singh Marwah’s case.

Civil proceedings and criminal proceedings can proceed simultaneously : See.P.Swaroopa Rani vs. M.Hari Narayana @ Hari Babu, AIR 2008 SC 1884

Any amount of evidence, without pleadings should be eschewed :

Darisi Masthanamma vs. Mandiga Rama Krishna, AIR 2006 AP286. M.B. Subramanyamvs. A.Ramaswamy, SA Nos. 1668 & 1669/2008 and M.P. No. 1/2008. Mohamed Ismailand anr vs. Khadirsa Rowther and Ors, (1982) 2 MLJ 367. The decision of a casecannot be ‘based on grounds outside the pleadings of the parties, AIR 1953 SC

Journal Section 53

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235; Trojan and company Vs R.M.N.N Nagappa chettiar; Johnson v. Rex ([1904] A.C.817) referred to. It is well settled that the decision of a case cannot be ‘based ongrounds outside the pleadings of the parties and that it is the case pleaded that has to befound.

Without an amendment of the plaint the court was not entitled to grant the reliefnot asked for AIR 1953 SC 235, Trojan and company Vs R.M.N.N Nagappa chettiar,Without an amendment of the plaint the court was not entitled to grant the relief not askedfor and no prayer was ever made to amend the plaint so as to incorporate in it an alternativecase.

Entire pleadings on both sides can be looked into:-

2017(2) ALT 24 (DNSC), Kuldeep singh Pathavia Vs. Bikram Singh Jorgal. Principal OfLaw is that pleadings on both sides can be looked into under order 14 Rule 2(2) to seekwhere the court has jurisdiction and whether there to a bar for entertaining the suit.

Pleadings are not statues :

As was held in AIR 1987 SC 193 SB Noronar Vs Prem Kundi, Pleadings are not statutesand legalism is not verbatim common sense should not be kept in cold storage,whenpleadings are constructed. Plea regarding maintainability of suit is required to be raisedin the first instance 2017(2) ALT 40 (SC), A.Kanthamani (Mrs) Mrs. VS.Nasreen Ahmed.

Conclusion :

It is curious to note that pleading to state material facts and not evidence. Particulars offacts to be given where necessary. Any condition precedent, the performance or occurrenceof which is intended to be contested, shall be distinctly specified in his pleading by theplaintiff or defendant. No pleading shall, except by way of amendment, raise any newground of claim or contain any allegation f fact inconsistent with the previous pleadings ofthe party pleading the same. Bare denial of contract shall be construed only as a denialin fact of the express contract alleged or of the matters of fact from which the same maybe implied, and not as a denial of the legality or sufficiency in law of such contract. As tomaterial contents of a document, it shall be sufficient in any pleading to state the effectthereof as briefly as possible, without setting out the whole or any part thereof, unless theprecise words of the document or any part thereof are material. Neither party need in anypleading allege any matter of fact which the law presumes in his favour or as to which theburden of proof lies upon the other side unless the same has first been specifically denied.Every pleading shall be signed by the party and his pleader (if any). where a party pleadingis, by reason of absence or for other good cause, unable to sign the pleading, it may besigned by any person duly authorized by him to sign the same or to sue or defend on hisbehalf. Pleadins shall contain address for service of notice. Verification of pleadings isalso an important task. Sequentially, striking out pleadings and amendment of pleadingsare significant factors. See. Order VI of CPC.

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Abdul Rafeeq & Ors. Vs. State of Telangana & Ors., 235

W.P.No.22955/17. Dt:26-10-2017

2017(3) L.S. 235

HIGH COURT OF JUDICATURE ATHYDERABAD FOR THE STATE OFTELANGANA AND THE STATE OF

ANDHRA PRADESH

Present:The Hon’ble Mr.Justice

P. Naveen Rao

Abdul Rafeeq & Ors. ..AppellantVs.

State of Telangana & Ors., ..Respondent

ANDHRA PRADESH RIGHTS INLAND AND PATTADAR PASS BOOKSACT, Sec.9 - Writ petition – Respondents4 to 6 filed revision before the JointCollector to carryout corrections ofillegal entry in the old ROR in respectof their land and further contended thatthey are the rightful owners of the land.

Writ Petitioners opposed theclaim on ground that there was no saleas claimed by them and sale deed wasa false document - Objection ofpetitioners before Joint Collector, thatno decision shall be made in therevision as there was pending suitbefore a Civil Court was rejectedholding that same suit was forperpetual injunction and no injunctionorders were granted by the Court andallowed the revision and ordered torestore the name of respondents –Hence this Writ petition.

Held – As there was noadjudication of title dispute, the

decision of revisional authority does notamount to decision made on title dispute– No error in the revisional authorityexercising quasi-judicial power undersection 9 of the Act, merely becausesuit is pending on a prayer to grantperpetual injunction – Contentions ontitle/owner ship and possession are leftto be agitated in pending suit or otherproceedings - Writ petition is dismissed.

Cases referred:1.1996 LawSuit (AP) 9062.1997 (2) ALT 625 (D.B.)3.2000 (1) ALD 6724.2003 (1) ALD 85 (SC)5.2011 (4) ALD 5676.2014 (1) ALT 3657.(2015) 3 SCC 6958.2014(3) ALT 176 (DB)9.2015 (4) ALD 42710(2009) 9 SCC 35211(2010) 8 SCC 46712.(2006) 3 SCC 17313.(2003) 3 SCC 58314.2015 (6) ALD 609 (DB)

Mr.M.Damodhar Reddy, Advocate for theAppellant.Government Pleader for Revenue, Advocatefor the Respondents 1 TO 3..Mr.N.Vasudeva Reddy, Advocate forrespondents 4 to 6.

O R D E R

Heard Sri M.Damodar Reddy,learned counsel for petitioners, learnedGovernment Pleader for Revenue (TG) forrespondents 1 to 3 and Sri N.VasudevaReddy, learned counsel for respondents 4to 6.

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236 LAW SUMMARY (Hyd.) 2017(3)

2. Respondents 4 to 6 and one other personfiled revision under Section 9 of the AndhraPradesh Rights in Land and Pattadar PassBooks Act 1971 (Act, 1971) before the JointCollector, Vikarabad District praying tocarryout corrections of illegal entry in theold ROR of 1979-80 in respect of land inSy.No.1145 to an extent of Ac.9.18 guntasof Dudyal Village of Bomraspet Mandal bydeleting the name of late Abdul Hameed.Revision petitioners contended that oneBabu Rao is the original owner of the aboveland and he sold the same to the fatherof the revision petitioners through sale deeddated 29.02.1950. In Khasra pahani 1954-55, the name of father of revision petitionerswas recorded as purchaser and insubsequent years name of their fatherrecorded as owner and pattadar. In the year1983, Government issued pattadar passbooks in the name of their father. In supportof their contention that they are owners,they have also stated that in the year, 1973their father obtained loan from the LandMortgage Bank (LMB) to dig open bore-well. According to them, for the first timein 1979- 80 old ROR, name of father ofrespondents was recorded without any filenumber, proceedings number and withoutmention of document or decree of Civil Courtas source to undertake such exercise.

3. Detailed contentions were urgedrespectively. Suffice to note that,respondents before the revisional authority(petitioners herein) opposed the claim ofrevision petitioners (respondents 4 to 6herein) primarily on the ground that therewas no sale as claimed by them and itwas a false document. It was furthercontended that if there was un-registered

sale deed, they would have got the sameregularized and obtained certificate underSection 50-B of the Andhra Pradesh(Telangana Area) Tenancy and AgriculturalLands Act, 1950 (Act, 1950). As no suchcertificate was obtained, entire claim ofrevision petitioners falls to ground.

4. On extensive consideration of rival claims,the Joint Collector noticed that in P.T.Register of Dudyal village for the year 1950-51, name of Smt. Srishasani Bogum wasshown as pattadar and ChinthakindiVeerappa (through whom respondents 4 to6 claim passing on title to them) was shownas protected tenant. In the Sethwar for theyear 1351 Fasli of Bomraspet village, thesubject land was classified as Sarkari(patta) with the Khatedar name SrishasaniBogum. In the year 1954-55, SrishasaniBogum was shown as pattadar andChinthakindi Veerappa was shown asoccupant of land by way of purchasers. Hewas also shown as protected tenant andactual cultivator of the land. According toJoint Collector, the entries made in the year1954-55 continued up to the pahani of 1978-79 and only in the pahani of 1979-80, nameof Chinthakindi Veerappa was deleted andname of Mohd.Moulana was recorded aspattadar. The same was also reflected inthe pahanies of 1987-88, 1990-91 onwards.In possession column of pahanies for theyears 1990-91, 1998-99 and 2009-10,names of respondents were recorded asoccupants, whereas in pahanies for theyear 1982-83, 1987-88, 1996-97, 2002-03,2005-06, 2006-07, possession column iskept blank. He also noticed that in the year2009-10 pahani, land is divided amongrespondents before him in equal shares

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claiming as successors of lateMohd.Moulana. According to the JointCollector, it is not known how respondentsor their late father Moulana are related tooriginal pattadar; not filed any documentaryevidence to show that it was ancestralproperty and they have acquired rights byvirtue of succession. According to the JointCollector, name of father of respondentswas unauthorizedly recorded as pattadarin the ROR Register of 1979- 80 andpahanies of 1979-80, 1982-83 etc., withoutany documentary evidence and no filenumber is mentioned for making suchchanges.

5. The objection of the respondents beforehim that O.S.No.2 of 2010 is pending onthe file of Junior Civil Judge at Kodangaland, therefore, no decision should be madewas rejected holding that the said suit wasfor perpetual injunction and no injunctionorders were granted by the trial Court andthat injunction suit has no relevance withissue involved in the revision. Having regardto findings recorded by him, as briefly notedabove, he allowed the revision and orderedto restore the name of ChinthakindiVeerappa as pattadar while deleting thename of Mohd. Moulana. Aggrieved thereby,this writ petition is filed.

6. Sri M.Damodar Reddy, learned counselfor petitioners contended that:

i) revision petition was entertained after longlapse of time and there was no sufficientexplanation as to why such petition waspreferred after long lapse of time. Accordingto the learned counsel, even according tothe unofficial respondents, entry of late Abdul

Hameed was made in revenue records ofthe year 1979-80 and in the subsequentyears also name was shown and for theyear 2009-10 pahani would reflect thatnames of the petitioners were reflected asowners with equal shares by way ofsuccession. If that is so, unofficialrespondents ought to have preferred revisionsoon thereafter. Though Section 9 of theAct do not prescribe any limitation, suchrevision has to be preferred within areasonable time and in the facts of thecase, it cannot be said that revision filedin the year 2013 was within a reasonabletime and this ought to have been appreciatedby the revisional authority and ought notto have entertained the revision. Evenassuming that un-official respondents werenot aware of entries made in revenue recordstill notice was received by them in O.S.No.2of 2010, they could have filed such revisionimmediately thereafter, even if same istreated as date of knowledge. But evenafter notice was received in the suit, theykept quiet for three long years and in themean time, they have also filed writtenstatement in the suit. It is thus contendedthat revision was not filed within reasonabletime. There was inordinate delay and therevision ought to have been dismissed onthat ground alone.

ii) It is further contended that as petitionerswere in possession and respondents 4 to6 tried to dispossess them, petitionersinstituted O.S.No.2 of 2010 praying to grantperpetual injunction. The unofficialrespondents filed their written statementand suit is pending trial. After entering theirappearance in the suit and after filing writtenstatement, instant revision is filed. In the


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written statement, they have also raisedsimilar objections as urged before therevisional authority, whereas petitioners havecategorically denied alleged purchase madeby their late father on 29.02.1950 and itbeing an ancestral property, it has fallento their share as successors to late AbdulHameed. Since suit is pending, the revisionalauthority erred in entertaining and decidingthe issue which would adversely affect claimsmade by petitioners in their suit. Oncecompetent Court is seized of the matter,the revisional authority under the Act, 1971ought not to have entertained the revisionand enter into rival claims and decide suchclaims. His decision to reject their objectionon this aspect is erroneous.

iii) In addition to the above contentions,learned counsel also made extensivesubmissions on merits of the rival claims,more particularly with reference to theprovisions of A.P. (Telanana Area) TenancyAgricultural Lands Act, 1950 and the legality/genuineness of the sale deed dated29.02.1950, based on which claim is setup by unofficial respondents.

iv) In support of his contentions, learnedcounsel placed reliance on followingdecisions:

I) IBRAHIMPATNAM TALUK VYAVASAYACOOLIE SANGAM, REP.BY ITS GENERALSECRETARY, GEETHA RAMASWAMY V.K.SURESH REDDY(1) ;

II) MOHD. KAREEMUDDIN KHAN (DIED)AND OTHERS V. SYED AZAM(2) ;

III) G.K.NAIK V. SUSHEELA NAIK ANDANOTHER(3) ;

IV) MAHILA BAJRANGI (DEAD) BY LRSAND OTHERS V. BADRIBAI ANDANOTHER(4) ;

V) KUTHURU NARASIMHA REDDY VPUSALA VENKATAIAH AND OTHERS(5);

VI) BASIREDDY RUKMINAMMA V. JOINTCOLLECTOR, KADAPA AND OTHERS(6)AND

VII) JOINT COLLECTOR RANGA REDDYDISTRICT AND ANOTHER V. D.NARSINGRAO AND OTHERS(7) .

7 (i). Per contra, Sri N.Vasudeva Reddy,learned counsel for respondents 4 to 6contended that filing of revision on18.05.2013 to rectify illegal entries madein the revenue records cannot be called asone made after long lapse of time and revisioncannot be thrown out on the ground thatthere was inordinate delay, more particularlyin the peculiar facts of this case. Havingnoticed from contents of suit instituted bypetitioners and on verification of revenuerecords, revision was filed on 18.05.2013.However, he would submit that unofficialrespondents were pursuing the matter evenearlier. He would therefore submit that therewas no delay much less inordinate delayin filing the revision.

1.1996 LawSuit (AP) 9062.1997 (2) ALT 625 (D.B.)

3.2000 (1) ALD 6724.2003 (1) ALD 85 (SC)5.2011 (4) ALD 5676.2014 (1) ALT 3657.(2015) 3 SCC 695


15

ii) According to the learned counsel, rightfrom 1954-55 name of father of unofficialrespondents appeared. He was protectedtenant and he purchased land from pattadarin the year 1950. Sale deed of 1950 wouldevidence such purchase made. TenancyRegister of 1956-57 & 1957-58 would reflectthe name of father of petitioners as tenants.Phanies for the year 1957-58 also reflectname of father of unofficial respondents.Pattadar pass books were issued reflectingname of late father of unofficial respondents.Only for the first time in the year 1979-80, name of Mohd. Moulana appeared. Norecord is shown how his name is reflectedin revenue records. According to learnedcounsel, panchanama conducted on17.12.2009 would reflect that unofficialrespondents were in possession andcontinued to be in possession. On27.12.2009 pattadar pass books and titledeeds were issued reflecting names ofunofficial respondents. Before issuance ofpattadar pass books, notices were issuedto petitioners and they did not appear. Reportof the Tahsildar dated 15.11.2012 whichwas addressed to the Revenue DivisionalOfficer would also reflect that in Khasrapahani for the year 1954-55 name ofChintakindi Veerappa was recorded asoccupant by way of purchase for ? 380/- and for the years 1955-1958, his namewas recorded in pattadar and occupantcolumns. The report would disclose thathaving noticed wrong entry made, noticewas issued to petitioners to produce thedocuments to show how their names wereentered in pattadar column, but nodocuments were produced in support oftheir claim, except stating that it is theirancestral property. On 18.01.2013, the

Revenue Divisional Officer directed theTahsildar that he being competent authorityto restore or to make the corrections ofillegal and unauthorized entries made, heshould take appropriate steps. He wouldtherefore submit that documents enclosedto counter-affidavit would reflect that wrongentry was made and unofficial respondentshave been prosecuting the matter.

iii) By narrating above facts, learned counselcontended that it cannot be said thatunofficial respondents kept quiet even thoughthey were aware of wrong entries made inrevenue records. Panchanama conductedon 17.12.2009 would reflect that illegallysome entry was made without following dueprocedure and without putting unofficialrespondents on notice and that there wasno occasion for unofficial respondents toknow about alleged illegal entry made,allegation that in spite of knowledge of suchillegal entry made, they kept quiet forunreasonably long time deserves to berejected. On the contrary, reports ofTahsildar and decision of the revisionalauthority disclose that patent illegality wascommitted in making wrong entry in revenuerecords of 1979-80 for the first time. In spiteof granting sufficient time and opportunityto petitioners by various authorities, theywere unable to establish source how titlewas validly passed on to their father andwhat was the relationship of original pattadarwith their father. Further more, name ofMoulana was not continuously reflected inrevenue records as noticed by the revisionalauthority. Thus, in the facts of this case,decisions relied by the learned counsel haveno application and decision by revisionalauthority cannot be set aside on mere


16

ground that no challenge was made soonafter entry was made in the year 1979-80in revenue records. According to learnedcounsel, revisional jurisdiction was validlyexercised.

iv) He further submitted that pending suitis not a bar for entertaining revision underSection 9 of the Act, 1971. Suit is for mereinjunction and not for declaration of titleand, therefore, pending such suit is not abar for exercising revisional power underSection 9 of the Act, 1971.

v) He would further submit that revisionalauthority considered all aspects and onconsidering rival contentions and on applyinghis mind, decision was made by him.Against decisions made by quasi-judicialauthorities, the jurisdiction of the writ Courtis limited and when there is no perversityor patent illegality in the decision made bythe quasi-judicial authority writ Court cannotinterfere as if the Court is sitting in appealagainst such decision.

vi) Learned counsel fairly submitted thatdecision arrived at by revisional authoritycannot affect rival contentions in the pendingsuit and it is always open to plaintiffs tocontest claim of defendants on merits andto prove that they are in possession.

vii) Learned counsel also extensively referredto provisions of Tenancy Act and Act, 1971as well as on merits of their claim.

viii) In support of his contentions, learnedcounsel Sri N.Vasudeva Reddy, placedreliance on following decisions:

i) ERUKALA UMA V GOVERNMENT OFANDHRA PRADESH, REP.BY ITS JOINTCOLLECTOR, KARIMNAGAR ANDANOTHER(8) ; AND

II) G.PRABHAKAR V. STATE OFTELANGANA AND OTHERS(9) .

8. In reply, learned counsel Sri DamodarReddy, by referring to relevant portions oforder of revisional authority (page-23 of writpetition material paper book) contended thatsaid assessment made by the Joint Collectorwould itself reflect that entry ofMohd.Moulana was made in revenuerecords as early as in the year 1979-80and limitation has to be counted from thatyear onwards. Though Section 9 of the Act,1971 do not prescribe period of limitationto prefer revision, such revision has to bepreferred within a reasonable time andpreferring revision in May, 2013 againstalleged wrong entries made in the year1979-80 cannot be said as made withinreasonable time. He emphasized that inview of decisions relied upon by himentertaining of revision after such long lapseof time was erroneous and on that groundalone revision ought to have been dismissed.He further reiterated that when suit ispending, revisional authority ought not tohave entertained the revision.

9. Before appreciating rival contentions, itis to be noted that O.S.No.2 of 2010 ispending in the Court of Junior Civil Judge,Kodangal. Therefore, Court is not inclinedto go into the merits of rival contentionson the title and ownership at this stage.

8.2014(3) ALT 176 (DB)9.2015 (4) ALD 427


17

10. Thus, only issues for consideration inthis writ petition are,

(i) Whether the revision petition filed byunofficial respondents is hit by inordinatedelay and latches and whether JointCollector erred in entertaining revision afterlong lapse of time and altering revenuerecords in their favour by deleting namesof the petitioners herein ?; and

(ii) Whether Joint Collector erred inentertaining revision when O.S.No.2 of 2010is pending inter-parties ?

ISSUE NO. (i):

11. Section 9 of the Act, 1971 reads asunder:

Section 9 Revision: The Collector mayeither suo motu or on an applicationmade to him, call for and examinethe record of any Recording Authority,Mandal Revenue Officer or RevenueDivisional Officer under Sections 3,5, 5-A or 5-B, in respect of any recordof rights prepared or maintained tosatisfy himself as to the regularity,correctness, legality or propriety ofany decision taken, order passed orproceedings made in respect thereofand if it appears to the Collector thatany such decision, order orproceedings should be modified,annulled or reversed or remitted forre- consideration, he may pass ordersaccordingly.--

Provided that no such order adversely

affecting any person shall be passed underthis section unless he had an opportunityof making a representation.

12. A plain reading of this section makesit clear that, Act does not prescribe limitationto exercise power of revision by therevisional authority. Such power can beexercised suo moto or on an application.It vests powers in him to verify the concernedrecord and assess as to regularity,correctness, legality or propriety ofdecisions taken by his subordinates. It isa sweeping power. Such power can beinvoked to rectify any injustice caused toa person at the hands of his subordinates.It vests wide discretion.

13. There are similar such provisions invarious enactments vesting power in anauthority to exercise revisional jurisdictionwithout stipulating time limit. In plethora ofdecisions Constitutional Courts haveconsidered the scope of exercise of suchpower. A few of the decisions, some of themcited at the bar, are referred hereunder.

13.1. In Ibrahimpatnam, the Division Benchof this Court held as under:

3. The learned single Judge allowedthe writ petition on the twinconsiderations that the purportedaction suo moto proceedings initiatedafter 13 to 15 years was unwarrantedand could not be considered asreasonable exercise of the suo motopower and on the ground that sincethe Joint Collector found therespondents to have been put inpossession of the lands in the year


18

1965, their applications for issue ofvalidation certificates had been madewithin time as was lat extended, forwhich, the certificates cannot be heldto be bad in law.

5.. Exercise of such power after 14to 15 years is ipso factounreasonable. There is absolute noexplanatio\n before us to why thoughSection 50(B) was amended in theyear 1979, the Joint Collector waitedtill 1989 to invoke the power. Everyman has the legitimate expectationof regarding a set of things, or factswhich have continued over a periodof time, to have become settled sothat he can plan his future courseof action on the basis of suchaccepted situation. Unsettling suchfacts after long delay upsets not onlyhis entire programme but also affectsin the long run the society itself.Even in the present case, therespondents have taken the standthat they filed returns before theceiling authorities under the CeilingAct, 1973, showing these lands astheir holdings authorities and thatsuch plead had been upheld.Unsettling such position may meaneven reopening the ceilingproceedings which must havebecome final long time back. In thatview of the matter, we agree with theobservations of the learned singleJudge in that respect.(emphasissupplied)

13.2. In Joint Collector Ranga Reddy (supra),Supreme Court reviewed the law declared

in earlier decisions on the subject. SupremeCourt noticed, having regard to facts of thatcase, that authorities of the state wereaware of claims of respondent on the subjectland but kept quiet. Supreme Court, thereforeheld that exercise of suo moto revisionalpower after five decades, in the facts of thatcase, opposed to concept of rule of law,even though period of limitation is notprescribed to exercise such power.

13.3. In SANTOSHKUMAR SHIVGONDAPATIL AND OTHERS V. BALASAHEBTUKARAM SHEVALE AND OTHERS(10) ,on 30.03.1976 Tahsildar passed orders,where under 3/4th portion of land earlier inoccupation of Tukaram was granted in favourof Shivgonda Satgonda Patil on the basisof his occupation as cultivator and 1/4thremained in favour of Tukaram SakharamShevale. Tukaram Sakharam Shevale diedin the year 1990. In 1993, his legal heirsfiled application before the Sub-DivisionalOfficer seeking revision of order of Tahsildardated 30.03.1976. Said revision wasallowed. Supreme Court noticed that afterthe order of Tahsildar dated 30.03.1976,Tukharam Sakharam Shevale thoughsurvived till 1990 did not challenge the sameand kept quiet. Supreme Court also noticedthat it was not the case of the legal heirsof Tukharam Sakharam Shevale that hewas not aware of the order passed on30.03.1976 and that it was not the caseof the Sub-Divisional Officer that order dated30.03.1976 was obtained fraudulently. Inthe above factual background, SupremeCourt held that exercise of revisional powerafter lapse of 17 years would amount toabuse an exercise of such power. Supreme

10(2009) 9 SCC 352


19

Court held as under:

11. It seems to be fairly settled thatif a statute does not prescribe thetime-limit for exercise of revisionalpower, it does not mean that suchpower can be exercised at any time;rather it should be exercised withina reasonable time. It is so becausethe law does not expect a settledthing to be unsettled after a longlapse of time. Where the legislaturedoes not provide for any length oftime within which the power ofrevision is to be exercised by theauthority, suo motu or otherwise, itis plain that exercise of such powerwithin reasonable time is inherenttherein.(emphasis supplied)

13.4. In SULOCHANA CHANDRAKANTGALANDE V. PUNE MUNICIPALTRANSPORT AND OTHERS(11) , the factsin brief are as under:

The subject property came within the urbanlimits on 17.05.1976 and was governed bythe Urban Land (Ceiling and Regulation)Act, 1976 (Act, 1976). The said land wasacquired under the Act in the year 1978-1979; possession was taken; handed overto Pune Municipal Transport (PMT); in 1988the bus depot was constructed on a partof the suit land. On 06.04.1988, appellantpreferred revision under Section 34 of theAct, 1976 contending that land ought notto have acquired under the Act on the groundthat on the date of commencement of theAct, 1976 land was not within the limitsof Urban area. The revision was allowed on

29.09.1998 and challenge was made by thePMT, High Court of Maharashtra allowedthe revision petition. Supreme Court noticedthat the revisional authority erred in notgranting the point of delay interpreting theprovision contained in Section 34 of theAct, 1976. Supreme Court held as under:

28. The legislature in its wisdom didnot fix a time-limit for exercising therevisional power nor inserted thewords at any time in Section 34 ofthe 1976 Act. It does not mean thatthe legislature intended to leave theorders passed under the Act opento variation for an indefinite periodinasmuch as it would have the effectof rendering title of the holders/allottee(s) permanently precariousand in a state of perpetual uncertainty.In case, it is assumed that thelegislature has conferred aneverlasting and interminable powerin point of time, the title over thedeclared surplus land, in the handsof the State/allottee, would foreverremain virtually insecure. The Courthas to construe the statutory provisionin a way which makes the provisionsworkable, advancing the purpose andobject of enactment of the statute.

29. In view of the above, we reachthe inescapable conclusion that therevisional powers cannot be usedarbitrarily at a belated stage for thereason that the order passed inrevision under Section 34 of the 1976Act, is a judicial order. What shouldbe reasonable time, would dependupon the facts and circumstances11(2010) 8 SCC 467


20

of each case. (emphasis supplied)

14. From the long line of precedentdecisions, it is manifest that thoughConstitutional Courts have conceded revisionpower perse but were concerned aboutmanner of exercise of such power inindividual cases. Courts expresseddispleasure in invoking such power afterlong lapse of time and upsetting settledissues. Therefore, courts have laid downlimits to exercising such power. Courts haveheld that even in the absence of fixing timelimit such power ought to be exercisedwithin reasonable time. However, what isreasonable time is left to be decided inindividual cases.

15. The constitutional Courts mandatedexercise of such power within reasonabletime only to ensure that exercise of suchpower after long lapse of time would upsetlegitimate expectation flowing out of adecision made by executive authority longtime back; accrual of certain rights flowingout of such decisions; accrual of third partyinterests; and that there should not beperpetual uncertainty on any issue. In otherwords, there must be some finality to anissue.

16. Since power to undertake review isconceded to revisional authority and timelimit is not prescribed to exercise suchpower, what is required to be consideredin a given case is whether there was delayin making an application for revision ofdecisions of lower authorities and if therewas delay whether such delay wasunexplained or unreasonable long. Thus,there cannot be straight jacket formula to

hold every case of delay in making sucha claim as perse vitiated and therefore ina given case whether party was justifiedin filing revision after long time and whetherthere was sufficient justification for therevisional authority to entertain revision madeafter long lapse of time and decided thesame on merits depends on the facts ofa given case. Thus, to hold that a revisionwas entertained and decided after long lapseof time, it must be established that suchrevision was made after long lapse of timeof occurring of an event and there was novalid justification to file such revision afterinordinate delay. Thus the issue whetherrevision was filed within reasonable time ismixed question of fact and law. Therefore,specific objection must be raised before therevisional authority and invite finding fromhim.

17. No doubt revision power being aresiduary power, must be exercisedsparingly/cautiously, more so when a personfiles revision after long lapse of time of anevent. In a given case, invoking such powercan be tested on the ground whether it wasexercised arbitrarily and whimsically andon other well laid down parameters of judicialreview of administrative action, butfoundation must be laid before the revisionalauthority. Judicial review of such action canbe made based on the foundation of factsand not in isolation. Thus, parties arerequired to raise specific objection and invitefinding from the revisional authority onmaintainability of revision before testing hisdecision by invoking the writ jurisdiction ofthis court.

18. It is to be noted that petitioners filed


21

written arguments before revisional authority.Extensive contentions were made on meritsagainst unofficial respondents claim thattheir father was protected tenant and thatsale was made between original owner ofproperty and their father etc., but nocontention was raised on maintainability ofrevision after long lapse of time. It is tobe noted that petitioners contended that toenforce an order of Revenue Divisional Officerby Tahsildar, revision is not maintainableand party ought to have approached RevenueDivisional Officer to issue appropriatedirections to Tahsildar. Thus, there was nooccasion for the revisional authority toexamine the issue of maintainability ofrevision on the ground of delay in filing suchrevision vis--vis the facts of the case anddefense of unofficial respondents.Petitioners ought to have raised theirobjections before revisional authority onmaintainability of revision on the ground ofinordinate delay in filing revision and inviteda finding from him.

19. Further, even in the writ petition, no pleais raised against entertainment of revisionby the revisional authority after long lapseof time. Contentions are urged on meritsand primarily, plea raised before revisionalauthority as well as in writ petition is onthe ground that petitioners filed O.S.No.2of 2010 praying to grant perpetual injunctionand during the pendency of suit, revisionalauthority ought not to have entertainedrevision and granted relief to correct theentries in revenue records.

20. Thus, no foundation is laid either beforerevisional authority or in this writ petitionon the contention of entertaining revision

after long lapse of time.

21. On the contrary, respondents have madeextensive averments justifying the petitionfiled before revisional authority, resulting inorder impugned, which averments made intheir counter are not denied.

22. It is specific case of the unofficialrespondents that since 1983, unofficialrespondents were agitating against wrongentries made in revenue records and madeseveral representations to Tahsildar. On17.12.2009, spot inspection was made andpanchanama was conducted. Panchanamawould disclose that unofficial respondentsare in possession of land to an extent ofAc.9.18 guntas in Sy.No.1145. They wereissued pattadar pass books and title deedson 27.12.2009. Thereafter representationswere made to Revenue Divisional Officer forcorrection of entries in revenue records.Report was called from Tahsildar andTahsildar submitted his report on 15.11.2012.Report of Tahsildar would disclose thatTahsildar directed the petitioners to producedocuments in support of their claim ofownership. In response, no documents wereproduced in support of their contentionsthat subject property is their ancestralproperty. On consideration of said report,Revenue Divisional Officer directed theTahsildar to take a decision as he iscompetent authority. Alleging inaction andcontinuous reflection of wrong entries inrevenue records, unofficial respondents filedrevision under Section 9 of the Act.

23. Specific averments made by unofficialrespondents in their counter-affidavit are notcontroverted. According to averments in


22

counter-affidavit filed by unofficialrespondents, their ancestors were protectedtenants and also shown as purchasers ofvery same land. Subsequent revenuerecords would disclose their continuity inpossession and enjoyment.

24. A reading of order in revision wouldshow that on elaborate consideration ofrespective submissions, revisional authorityfound that as per Protected Tenant Registerof 1950-51 of Dudyal village, name ofCh.Veerappa was shown as protectedtenant. Detailed analysis of variousdevelopments on property and variouschanges made in revenue records werediscussed by revisional authority. It appears,from reading of material placed on recordby respective parties and order of revisionalauthority, name of Md.Moulana figured aspattadar in land in pahani 1979-80 and from1990-91 onwards. However, it appears forthe years 1990-91, 1998-99, 2009-10, namesof unofficial respondents were shown asoccupants of land. In the pahanies for theyears 1982-83, 1987- 88, 1996-97, 2002-03, 2005-06, 2006-07, possession columnwas kept blank. In the year 2009-10, revenuerecord reflected division of land in equalshares and recording of names of unofficialpetitioners by way of succession.

25. Record would disclose that no materialwas placed on record before revenueauthorities on source of title toMohd.Moulana, through whom petitionerswere claiming as succeeded to property.It appears from reading of revisional orderthat illegal entry was made for the first timein the year 1979-80 showing name ofMohd.Moulana as pattadar and said entry

is not supported by any document ofownership and entries were not supportedby decision consciously taken on dueconsideration of the issue. It appears,unofficial respondents were not put on noticebefore undertaking such exercise.

26. Thus, even though in pattadar columnname of ancestor of petitioners was shownafter 1979, though not continuously, namesof unofficial respondents were reflected inpossessor/enjoyers column and reports ofrevenue authorities would disclose thatunofficial respondents are in continuouspossession and enjoyment of subjectproperty. Further, it is not the case ofpetitioners that third party rights accruedon account of petitioners being treated aspattadars in revenue records. It is not thecase of the petitioners that they havechallenged the entries reflecting unofficialrespondents in possessor column. Thus,it cannot be said that revision proceedingsare vitiated on the ground of delay andlatches.

27. In exercise of power of judicial reviewunder Article 226 of the Constitution of Indiaan order of administrative authority, moreparticularly made in exercise of quasi-judicial power, can be tested and writ courtmay interfere only if Court comes to aconclusion that there is error of jurisdictionor decision is perverse. Writ Court doesnot sit as appellate authority over suchdecision. Thus, judicial review is confinedto jurisdictional error and perversity ofdecision. The scope of judicial review isconfined to decision making process andnot the decision perse.


23

28. The following two decisions succinctlyput the scope of judicial review ofadministrative decisions.

28.1. In Commissioner of POLICE V. SYEDHUSSAIN(12) , dealing with scope of judicialreview of administrative action, SupremeCourt held as under:

10. It is one thing to say that orderpassed by the statutory authority iswholly arbitrary and thus violative ofArticle 14 of the Constitution andthus liable to be set aside, but it isanother thing to say that thediscretionary jurisdiction exercisedby such authority should notordinarily be interfered with by asuperior court while exercising itspower of judicial review unless oneor the other ground upon which andon the basis whereof the power ofjudicial review can be exercised,exists.

11. It is not the contention of thelearned counsel for the respondentthat the impugned order ofpunishment smacks of arbitrarinessso as to attract the wrath of Article14 of the Constitution. The jurisdictionof the disciplinary authority to imposesuch punishment is also not inquestion.

12. Thus, even assuming that a timehas come where this Court candevelop administrative law byfollowing the recent decisions of theHouse of Lords, we are of the opinionthat it is not one of such cases where

the doctrine of proportionality shouldbe invoked. In ex p Daly [(2001) 3All ER 433 (HL)] it was held that thedepth of judicial review and thedeference due to the administrativediscretion vary with the subject-matter. It was further stated: (All ERp. 447, para 32) It may well be,however, that the law can never besatisfied in any administrative fieldmerely by a finding that the decisionunder review is not capricious orabsurd.

As for example in Huang v. Secy.of State for the Home Deptt. [(2005)3 All ER 435] referring to R. v. Secy.of State of the Home Deptt., ex pDaly [(2001) 3 All ER 433 (HL)] , itwas held that in certain cases, theadjudicator may require to conducta judicial exercise which is not merelymore intrusive than Wednesbury[Associated Provincial PictureHouses Ltd. v. Wednesbury Corpn.,(1947) 2 All ER 680 : (1948) 1 KB223 (CA)] , but involves a full-blownmerits judgment, which is yet morethan [what] ex p Daly [(2001) 3 AllER 433 (HL)] requires on a judicialreview where the court has to decidea proportionality issue.

13. It is, therefore, beyond any doubtor dispute that the doctrine ofproportionality has to be applied inappropriate case as the depth ofjudicial review will depend on the factsand circumstances of each case.

(emphasis supplied)


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28.2. In LALIT POPLI V. CANARA BANK(13), Supreme Court delineated scope ofjudicial review as under:

17. While exercising jurisdiction underArticle 226 of the Constitution theHigh Court does not act as anappellate authority. Its jurisdiction iscircumscribed by limits of judicialreview to correct errors of law orprocedural errors leading to manifestinjustice or violation of principles ofnatural justice. Judicial review is notakin to adjudication of the case onmerits as an appellate authority.

(emphasis supplied)

29. As seen from record, briefly noted above,there was extensive consideration and onapplication of mind, revisional authority heldthat illegally name of father of petitionerswas reflected in revenue records and lateron, names of petitioners were shown assuccessors and no material was placed onrecord before revisional authority or beforeRevenue Divisional Officer or Tahsildar insupport of their claim that their father wasowner of the property and title validly flownto their father and from their father to them.Thus, it cannot be said that decision arrivedat by revisional authority is perverse.

30. In the facts of this case and narrationof events as noted above, it cannot be saidthat there was error, much less patent errorin exercising revisional power. The decisioncannot be held as irrational nor can be heldas weighed by irrelevant consideration. Itcannot amount to outrageous defiance of

logic. I see no infirmity in the decisionmaking process. The specific contentionsurged by unofficial respondents in counter-affidavit, explaining the steps taken by themfor rectification in the errors committed inrevenue records are not controverted. I amof the considered opinion that no case ismade out to nullify the decision of revisionalauthority.

31. At this stage, it is necessary to considerfew other submissions of learned counselfor petitioners.

32. Learned counsel for petitioner wouldfurther contend that having appealed toRevenue Divisional Officer and RevenueDivisional Officer directed Tahsildar toconsider the same, unofficial respondentscould not have gone before revisionalauthority and petition filed before revisionalauthority is nothing but enforcement ofdirections issued by Revenue DivisionalOfficer to Tahsildar and such relief cannotbe prayed in revision petition. Moreover,unofficial respondents could have gone beforeappellate authority for enforcement his ownorder, but not before revisional authority. Insupport of his contention, he placed relianceon decision of Basireddy Rukminamma.

33. It appears from reading of judgment inBasireddy Rukminamma, revisionalauthority while holding that there is a serioustitle dispute set aside pattadar pass booksand title deeds issued to petitioner. Learnedsingle Judge of this Court found fault withdecision of Revenue Divisional Officer onthe ground that having held that there wasa serious title dispute and was notcompetent to decide the same, he could13.(2003) 3 SCC 583


25

not have cancelled pattadar pass booksand title deeds and further held that withoutavailing remedy of appeal under Section5(5) of the Act, person ought not to haveavailed remedy of filing revision.

34. Issue whether appeal is maintainableagainst issuance of pattadar pass booksand title deeds was considered by theDivision Bench of this Court in RATNAMMAV. REVENUE DIVISIONAL OFFICER,DHARMAVARAM, ANANTAPUR DISTRICTAND OTHERS(14) . Division Bench heldthat no appeal is maintainable againstissuing of pattadar pass books and titledeeds. Thus, view taken by learned singleJudge in Basireddy Rukminamma may nothold the field. Furthermore, in the facts ofthis case, it cannot be said that revisionalauthority decided the title dispute. Further,pending suit is only on the issue ofpossession.

35. There is merit in the contention of thelearned counsel for unofficial respondentsthat Tahsildar has no competence inundertake correction in the revenue recordsonce revenue records reflected the nameof father of the petitioners. This issue wasconsidered by the learned single Judge ofthis Court in G.Prabhakar. This Court heldas under:

36. In G.Prabhakar, single Judge of thisCourt held as under:

2. It is the case of the petitioner thatthe family of Syed Miya were issuedpattadar pass books and in whichthe land in Sy. No. 490 was recorded

as a patta land and whereas in theyear 2003 a mistake has crept andthe nature of the land was recordedas 'Lavani Patta' instead of 'PrivatePatta' and the same is beingcontinued as such. Bringing this factto the notice of the 3rd respondent,petitioner had submitted anapplication on 04.10.2012 to the 2ndrespondent vide complaint No. 26346,requesting him to correct the entriesin the revenue records..

xxxx

4. A perusal of Sections 3 to 5 and9 of the Act leave no manner of doubtthat the Tahsildar is not vested withany powers to make corrections eithersuo motu or on an application exceptat the time of making entries for thefirst time in terms of the notificationissued under Sections 3(1), 3(2) ofthe Act. Any corrections in relationto the entries could be made in thegiven circumstances satisfyingSection 3(3) of the Act within oneyear. If the case requiring correctionsof the revenue records beyond thetime limit of one year, necessaryorders can be passed only by theDistrict Collector in exercise of therevisional powers and the Tahsildaris not vested with any such power.

37. Learned counsel for petitioners forciblycontended that unregistered private saledeed dated 29.02.1950 claimed by unofficialrespondents is not valid for want of priorpermission from the revenue authoritiesunder Section 47 of the A.P. (Telangana14.2015 (6) ALD 609 (DB)


26

Area) Tenancy and Agricultural Lands Act,1950 and the sale was not validated underSection 50-B of the Act. In support of thesaid contention, learned counsel placedreliance on the decision of this Court inMohd.Kareemuddim.

38. In Mohd.Kareemuddin, Division Benchof this Court held as under:

14. While we reach such conclusionwe have however also to advert tothe submission urged on behalf ofthe appellants of the sales to havebeen invalid because the transfer ofthe land had not been made with thesanction of the competent authorityas laid down under Section 47 of theAct. It has to be said at the outsetthat this submission having beengiven up before the learned singleJudge, it cannot be raised at thisstage. It is however argued beforeus that since it is a question of law,the question can be raised also atthis stage and that the concessionwas not legally sound. Section 47of the Act, which has since beendeleted on 18-3-1969, barred anypermanent alienation or any othertransfer of land unless it was madewith the previous sanction of theTahsildar. Admittedly, no suchpermission had been taken whenExs. B-1 and B-2 were executedthough Section 47 of the Act wasthen in force. The sales hence wereapparently invalid. Section 50-Bwhich was brought in by the sameamendment provided for validation ofthe invalid sales on application to be

made within the prescribed period tothe Tahsildar for a certificate declaringthe alienation or transfer to be valid.No such application had been madeby the respondent for validation. Wehave hence to hold that the saleswere invalid.

39. Decision in Mahila Bajrangi do not cometo aid of petitioners on issue in this writpetition.

40. Decision in Kuthuru Narasimha Reddyalso do not come to aid of petitioners asthere is no adjudication by revisionalauthority on title dispute. It is seen thatobservations made by revisional authorityon the entry of name of father of petitionersand later, name of petitioners was notsupported by any material and thatexclusion of name of unofficial respondentswas with reference to entry of names inrevenue records. Thus, decision of revisionalauthority does not amount to decision madeon title dispute.

41. For the reasons stated above, the issueis answered in favour of unofficialrespondents and against the petitioners.ISSUE NO. (ii):

42. Learned counsel for petitionerscontended that when dispute is pending inCourt, Revisional authority ought not to haveentertained revision and passed orders infavour of unofficial respondents.

43. The averments of the petitioners andthe unofficial respondents would disclosethat suit filed by the petitioners is to grantperpetual injunction against respondents to


27

restrain the defendants from interfering withthe peaceful possession of the plaintiffsover the subject property.

44. In Erukala Uma, after referring to schemeof Act, 1971, Division Bench of this Courtheld as under:

10. Keeping this legislative schemein mind, it is difficult to accept thecontention that the moment any civilsuit is filed, the authorities under theROR Act have to stay their handsand cannot exercise any of thestatutory powers under the ROR Act,awaiting decision of the civil Court.The remedies under the ROR Act areprovided to give expeditious relief inrespect of rights in land and pattadarpass books. Such right, therefore,does not get affected merely becauseof pendency of any civil suit beforeany Court. But section 8(2) of theAct specifies that only the decreein such suits seeking declaration ofright under Chapter VI to SpecificRelief Act would be binding on theauthorities under the ROR Act.

xxxx

15. Hence, we deem it appropriate to clarifythe judgment of the learned single Judgeof this Court in V. Goutham Rao's case,to the extent that, when a show causenotice is issued by a competent authority,just because a civil suit is pending, ipsofacto, it will not entitle a party to approachthe High Court under Article 226 of theConstitution in view of the law laid downin V. Gowtham Rao's case, but the party

has to approach the authority by way ofa reply and should bring all the relevantfacts to the notice of the authority otherwise,the purpose of the Act itself would befrustrated, which is enacted for effectiveimplementation of entries in Record ofRights.

45. As held by the Division Bench of thisCourt in Erukala Uma, pendency of suit isno ground to stop enquiry under the Act,1971 and it is for the party to place onrecord all the relevant facts before theauthority. Furthermore, it appears, suit wasfiled praying to grant permanent injunctionagainst interference in possession and doesnot concern the title dispute.

46. I do not see any error in the revisionalauthority exercising the quasi-judicial powerunder Section 9 of the Act, 1971 merelybecause suit is pending on a prayer togrant perpetual injunction.

47. Thus, the issue is held againstpetitioners and in favour of unofficialrespondents.

48. In view of the above findings, the writpetition is liable to be dismissed and isaccordingly dismissed. However,contentions on title/ownership andpossession are left to be agitated in pendingsuit or in any other proceedings. It is madeclear that observations made herein aboveare only for the purpose of considerationof the order of revisional authority made inexercise of revisional jurisdiction underSection 9 of the Act, 1971 on two issuesformulated for consideration.


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Miscellaneous petitions if any pending inthe writ petition shall stand closed. Thereshall be no order as to costs.

--X--

2017(3) L.S. 252 (D.B.)


ANDHRA PRADESH


Sanjay Kumar &The Hon’ble Dr.Justice

Shameem Akther

Smt.P. Vijaya Laxmi ..PetitionerVs.

Smt.S.P.Sravana& Anr. ..Respondents

NEGOTIABLE INSTRUMENTSACT, Sec.138 – Whether complainantin a complaint case u/Sec..138 of theNI Act is victim as defined u/Sec.2(wa)of Cr.P.C. – If so, is he entitled to filean appeal invoking the proviso u/Sec.372 of Cr.P.C. before the court to whichan appeal lies against conviction – Ifnot, whether complainant in acomplaint case u/Sec.138 of NI Act andalso for any other offence either bailableor non- bailable is required to file anappeal against acquittal in a complaintcase seeking special leave of the courtu/Sec.378(4) of Cr.P.C.


Held - An offence u/Sec.138 ofN.I Act would only be a ‘summons case’wherein no charge requires to beframed and as the accused in a cheque-dishonour case is not charged, thecomplainant in such a case, though maysuffer loss and injury by the omissionof the accused to pay his dues, cannotbe brought within the ambit of a ‘victim’as defined u/Sec. 2(wa) of Cr.P.C – Sucha complainant would not be entitled toavail the remedy of an appeal underproviso to Sec.372 of Cr.P.C. and mustcontinue to avail special remedy toappeal provided u/Sec.378(4) of Cr.P.Cafter obtaining the special leave.

Cases Referred:1. 2011 (1) ALD (Crl.) 201 (AP)2. 2014 (2) ALD (Crl.) 9003. 2015 (3) ALT (Crl.) 107 (AP)4. (2015) CRI.L.J. 2784 (DB)5. (2015) CRI.L.J. 1627 (DB)6. 2013 LawSuit (P&H) 13757. 2016 (1) ALD (Crl.) 288 (SC) : (2015)15 SCC 6138. LAWS(RAJ)-2014-12-22 : 2014 SCCOnLine Raj 5499 : Order dated 02.12.2014in Criminal Revision Petition Nos.411/2012and 145/20139. (2010) 5 SCC 66310. (2013) 2 SCC 1711. 2015 (1) NIJ 166 (Del) : Judgment dated03.09.2014 in Crl.A.Nos.972 and 1163of 201212. 2013 (1) ALD (Crl.) 366 (AP)13. 2010 (1) SCALE 1714. Order dated 24.02.2015 in CriminalPetition No.6072/201415. Order dated 16.06.2011 in CriminalCrl.P.No.16742/2016 Date:27-10-2017

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Smt.P. Vijaya Laxmi Vs. Smt.S.P.Sravana & Anr. 253Application (APPA) No.708/201016. Oral Judgment dated 09.01.2013 inCriminal Revision Application No.158 of201217. Judgment dated 01.09.2016 in CRRNo.3793 of 201418. 2016 ALL MR (Cri.) Journal 49219. 2015 (1) MWN (Cr) DCC 26 (Mad.)20. (2008) 4 SCC 9121. (1994) 1 SCC 3422. AIR 1965 SC 70323. (1986) 4 SCC 43624. 1994 Supp (1) SCC 25725. (2014) 5 SCC 21926. (2002) 2 SCC 31827. (2014) 5 SCC 37728. 2017 SCC OnLine SC 92429. 2015 SCC OnLine GAU 505 : (2017)1 GAU LR 47130. (2014) CrLJ 104631. AIR 1952 SC 36932. (1992) 1 SCC 33533. AIR 1963 SC 9034. (1985) 2 SCC 279

O R D E R(per the Hon’ble Mr.Justice

Sanjay Kumar)

A learned Judge referred this caseto a Division Bench for an authoritativepronouncement on the following questionsof law: (1) Whether the complainant in acomplaint case for the offence punishableunder Section 138 of Negotiable InstrumentsAct is a victim as defined under Section2(wa) of Cr.P.C. as amended by the ActNo.5 of 2009 with effect from 31.12.2009(2) If the complainant is a victim within thedefinition of Section 2(wa) of Cr.P.C., is heentitled to file an appeal invoking the proviso

to Section 372 of Cr.P.C. before the Courtto which an appeal lies against the conviction(3) If not, whether the complainant in acomplaint case for the offence punishableunder Section 138 of Negotiable InstrumentsAct or for any other offence either bailableor non- bailable is required to file an appealagainst acquittal in a complaint caseseeking special leave of the Court underSection 378 (4) of Cr.P.C.

Hence, the matter was placed before us.

The factual matrix from which the aforestatedquestions arise is as under: The petitionerherein is the accused in C.C.No.87 of 2015on the file of the learned XXIII SpecialMagistrate, Hyderabad, arising out of theprivate complaint filed by the first respondentherein under Section 200 of the Code ofCriminal Procedure, 1973 (for brevity, theCode), in relation to an offence under Section138 of the Negotiable Instruments Act, 1881(for brevity, the Act of 1881). By judgmentdated 12.02.2016 passed therein, thelearned XXIII Special Magistrate, Hyderabad,acquitted her. Aggrieved thereby, the firstrespondent/complainant filed an appealbefore the learned Metropolitan SessionsJudge, Hyderabad. The petitioner, being therespondent therein, raised an objection asto the maintainability of the appeal. However,overruling her objection, the learnedMetropolitan Sessions Judge, Hyderabad,passed orders on 17.10.2016 inCrl.M.P.No.1233 of 2016 filed in the appeal,condoning the delay of 24 days in itspresentation on payment of costs. Theappeal was thereupon numbered as CriminalAppeal No.926 of 2016. Aggrieved thereby,the petitioner approached this Court by way

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254 LAW SUMMARY (Hyd.) 2017(3)of the present petition under Section 482of the Code. Her contention is that thelearned Metropolitan Sessions Judge,Hyderabad, lacks jurisdiction to entertainan appeal arising out of the acquittal in acase instituted upon a complaint and thatan appeal therefrom would only lie to theHigh Court under Section 378(4) of the Code.She accordingly seeks quashing of theappeal on the file of the learned MetropolitanSessions Judge, Hyderabad. The learnedsingle Judge who heard the case found thatthere was divergence of opinion on the framedquestions of law and opined that anauthoritative pronouncement would bedesirable to give a quietus to the issue.

Sri Anand Kumar Kapoor, learned counselrepresenting M/s.Lawyers & Solicitors,counsel for the petitioner, advanced copiousarguments on various aspects. The learnedPublic Prosecutors of the State of Telanganaand the State of Andhra Pradesh assistedthe Court as a pronouncement on the issuesraised would have far-reachingconsequences.

Sri M.Veera Prasada Chary, learned counsel,who appeared for the first respondent/complainant before the learned Judge atthe time of the reference, did not chooseto appear before us or advance arguments,though the matter was heard at length.

As the core controversy revolves around theconstruction and interpretation of essentiallytwo provisions of the Code, it would beappropriate to extract them hereunder:

Section 372. No appeal to lie unlessotherwise provided. No appeal shall lie from

any judgment or order of a Criminal Courtexcept as provided for by this Code or byany other law for the time being in force.

Provided that the victim shall have a rightto prefer an appeal against any order passedby the Court acquitting the accused orconvicting for a lesser offence or imposinginadequate compensation, and such appealshall lie to the Court to which an appealordinarily lies against the order of convictionof such Court.

Section 378. Appeal in case of acquittal.(1) Save as otherwise provided in sub-section(2), and subject to the provisions of sub-sections (3) and (5),

(a) the District Magistrate may, in any case,direct the Public Prosecutor to present anappeal to the Court of Session from anorder of acquittal passed by a Magistratein respect of a cognizable and non-bailableoffence;

(b) the State Government may, in any case,direct the Public Prosecutor to present anappeal to the High Court from an originalor appellate order of an acquittal passedby any Court other than a High Court notbeing an order under clause

(a) or an order of acquittal passed by theCourt of Session in revision.

(2) If such an order of acquittal is passedin any case in which the offence has beeninvestigated by the Delhi Special PoliceEstablishment constituted under the DelhiSpecial Police Establishment Act, 1946 (25of 1946) or by any other agency empowered

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Smt.P. Vijaya Laxmi Vs. Smt.S.P.Sravana & Anr. 255to make investigation into an offence underany Central Act other than this Code, theCentral Government may, subject to theprovisions of sub-section (3), also direct thePublic Prosecutor to present an appeal

(a) to the Court of Session, from an orderof acquittal passed by a Magistrate inrespect of a cognizable and non- bailableoffence;

(b) to the High Court from an original orappellate order of an acquittal passed byany Court other than a High Court not beingan order under clause (a) or an order ofacquittal passed by the Court of Sessionin revision.

(3) No appeal to the High Court under sub-section (1) or sub- section (2) shall beentertained except with the leave of theHigh Court.

(4) If such an order of acquittal is passedin any case instituted upon complaint andthe High Court, on an application made toit by the complainant in this behalf, grantsspecial leave to appeal from the order ofacquittal, the complainant may present suchan appeal to the High Court.

(5) No application under sub-section (4) forthe grant of special leave to appeal froman order of acquittal shall be entertainedby the High Court after the expiry of sixmonths, where the complainant is a publicservant, and sixty days in every other case,computed from the date of that order ofacquittal.

(6) If, in any case, the application under

sub-section (4) for the grant of special leaveto appeal from an order of acquittal isrefused, no appeal from that order of acquittalshall lie under sub-section (1) or under sub-section (2).

Chapter XXIX of the Code deals with appeals.Section 372, being the first provision therein,stipulates that no appeal would lie from anyjudgment or order of a Criminal Court exceptas provided for by the Code or by any otherlaw for the time being in force. A provisowas inserted in Section 372 of the Code,vide the Code of Criminal Procedure(Amendment) Act, 2008 (Act 5 of 2009),with effect from 31.12.2009. By way of thesaid proviso, a victim was given the rightto prefer an appeal against an order passedby the Criminal Court either acquitting theaccused or convicting him of a lesser offenceor awarding inadequate compensation; andsuch an appeal would lie to the Court towhich an appeal would ordinarily lie againstan order of conviction passed by suchCriminal Court.

At this stage, it would be apposite toexamine certain definitions in the Code.Section 2(d) thereof defines a complaintthus:

Complaint means any allegation made orallyor in writing to a Magistrate, with a viewto his taking action under this Code, thatsome person, whether known or unknown,has committed an offence, but does notinclude a police report.

Explanation. A report made by a policeofficer in a case which discloses, afterinvestigation, the commission of a non-

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256 LAW SUMMARY (Hyd.) 2017(3)cognizable offence shall be deemed to bea complaint; and the police officer by whomsuch report is made shall be deemed tobe the complainant.

Section 2(wa) was inserted in the Code byAct 5 of 2009, with effect from 31.12.2009,and defines a victim as under:

Victim means a person who has sufferedany loss or injury caused by reason of theact or omission for which the accusedperson has been charged and theexpression "victim" includes his or herguardian or legal heir.

The broad issue arising for considerationpresently is whether an appeal would lieto the Sessions Court under the provisoto Section 372 of the Code against an orderof acquittal in a case arising out of a privatecomplaint, by treating the complainanttherein as a victim within the meaning ofSection 2(wa) of the Code.

Reference may now be made to the surfeitof case law on the subject and the diverseviews taken by Courts across the countryon these issues.

The decisions of this Court inG.BASAWARAJ V/s. STATE OF ANDHRAPRADESH(1) , PETTA SATYA GOVINDARAMACHANDRA RAO @ BABJI(2) V/s.YARLAGADDA VIJAYA KUMAR andTAMILNAD MERCANTILE BANK LTD. V/s. M/S. SUBAIAH GAS AGENCY (3) heldto the effect that an appeal would lie from

such an order of acquittal to the High Courtunder Section 378(4) of the Code or to theSessions Court under the proviso to Section372 of the Code. The decisions of the KeralaHigh Court in OMANA JOSE V/s. STATEOF KERALA(4) , the Chhattisgarh HighCourt in KAILASH MURARKA V/s. K.GEETSRIJAN(5) and the Punjab & Haryana HighCourt in TATA STEEL LTD. V/s. ATMA TUBEPRODUCTS LTD(6). were however to theeffect that an appeal would lie only to theHigh Court against acquittal in a complaint-case under Section 378(4) of the Code.

In G.BASAWARAJ1, a learned Judge ofthis Court was dealing with two criminalpetitions filed by an accused aggrieved bythe filing of criminal appeals by thecomplainant before the Sessions Courtagainst the judgments acquitting him ofoffences under Section 138 of the Act of1881. The issue before the learned Judgewas whether an appeal would lie at thebehest of the complainant before the HighCourt under Section 378(4) of the Code orwhether such a complainant would have tofile an appeal before the Sessions Courtunder the proviso to Section 372 of theCode, treating him as a victim under Section2(wa) of the Code. The learned Judgeobserved that prior to amendment of Section372 of the Code, the only remedy availableeither to the State in a case registered upona police report or to a complainant in acase registered upon his private complaint,was to invoke Section 378(4) and to approachthe High Court with an appeal and a petitionseeking special leave to file such appeal.

1. 2011 (1) ALD (Crl.) 201 (AP)2. 2014 (2) ALD (Crl.) 9003. 2015 (3) ALT (Crl.) 107 (AP)

4. (2015) CRI.L.J. 2784 (DB)5. (2015) CRI.L.J. 1627 (DB)6. 2013 LawSuit (P&H) 1375

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Smt.P. Vijaya Laxmi Vs. Smt.S.P.Sravana & Anr. 257The learned Judge was however of theopinion that this position was totallychanged after insertion of the proviso toSection 372 of the Code. Opining that theproviso to Section 372 of the Code madeinroads into the original general provisioncontained in Section372, the learned Judgeheld that the field became enlarged, clothinga victim also with the right to file an appealapart from the State or the complainant,as the case may be. The learned Judgefurther observed that the words victim andcomplainant were not synonymous thoughat times, a complainant may include a victimand vice versa, but not always. The learnedJudge held that a plain, simple and properreading of the language employed in Section378(4) of the Code and the proviso to Section372 thereof made it clear that there wasno clash or conflict or inconsistency betweenthe two and upon harmonious reading ofboth the provisions, it is evident that thepre- existing provision in Section 378(4) ofthe Code provided for filing of an appealagainst acquittal, by the State or by thecomplainant to the High Court with specialleave, whereas the amended Section 372of the Code provided for an appeal againstacquittal by the victim of the offence, tothe Court to which an appeal would ordinarilylie, had an order of conviction been passedin the case. The learned Judge thereforeheld that where the victim is also acomplainant in a case instituted by wayof a private complaint, then such a personwould have two options - to file an appealagainst the order of acquittal to the HighCourt under Section 378(4) of the Code orto the Sessions Court/High Court under theproviso to Section 372 of the Code. Thelearned Judge opined that it would be open

to the person who is a victim as well asa complainant to choose one of the tworemedies available to him in law andapproach the appellate Court of his choice,depending upon the status of the trial Courtwhich recorded the order of acquittal. Thelearned Judge observed that in case anorder of conviction was passed by anAssistant Sessions Court, then the appealwould lie to the Sessions Court or to theHigh Court depending upon the quantumof sentence of imprisonment and in casea conviction was recorded by a SessionsCourt or Additional Sessions Court, thenthe appeal would straightaway lie to theHigh Court. The learned Judge was of theopinion that even otherwise, if the appealswere not maintainable, they would not bequashed and the proper course would beto return them for presentation to the properCourt or to transfer them to such Court.As the appeals in that case were both filedbefore the insertion of the proviso to Section372 of the Code, the learned Judge heldthem to be not maintainable on that groundand accordingly transferred them to thisCourt.

A contrary view, to some extent, was takenby another learned Judge of this Court inPETTA SATYA GOVINDA RAMACHANDRARAO @ BABJI2. This was also a casearising out of a judgment acquitting theaccused of an offence under Section 138of the Act of 1881. The complainant thereinpreferred an appeal before this Court underSection 378(4) of the Code and specialleave was granted on 11.07.2005. By thatdate, the proviso to Section 372 of the Codehad not been inserted in the statute book.Referring to the fact that till the amendment

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258 LAW SUMMARY (Hyd.) 2017(3)of the Code in 2009 came into force, anappeal against an acquittal in a cheque-dishonour case would lie only under Section378(4) of the Code, the learned Judge opinedthat the right of appeal was then providedto the victim by virtue of the provisointroduced in Section 372 of the Code inthe year 2009. The learned Judge opinedthat a complainant in a cheque-dishonourcase would also come within the meaningof victim, having suffered loss or injury fromsuch dishonour, so as to maintain an appealbefore the Sessions Court thereunder.Pointing out that Section 378(4) of the Coderequired grant of special leave for invocationof the right to appeal, while the proviso toSection 372 did not insist upon such leave,the learned Judge opined that they werenot irreconcilable. Significantly, the learnedJudge observed that it cannot be readilypresumed that these provisions giveconcurrent jurisdiction for an appellant toselect one or the other Court of appeal,as observed in G.BASAWARAJ1. In thisregard, the learned Judge stated thus:

15. It is to say instead of filing appealunder Section 372 Cr.P.C., if allowedto file under Section 378(4) Cr.P.C.,with leave, it takes away theprospective likelihood of approachingby accused to avail right of appealunder Section 378(4) Cr.P.C., beforeHigh Court. It is because, theabsolute statutory right without evenleave of Court to file appeal beforeCourt of Session which is availablewith effect from 31.12.2009, if availedby the complainant under Section372 Cr.P.C and did so, in the eventof that Court deciding the appeal

against such acquittal by reversingand for any reason convicting, thereis right of appeal under Section 378(4)Cr.P.C., to such accused to approachthe High Court with leave. Withoutinvoking such right before Court ofSession by the complainant asappellant against acquittal by trialCourt and allowed to proceed beforeHigh Court by granting leave, it isnothing but taking away said rightof the accused in future of remedyto approach the High Court in suchevent and one way interfering withsuch right. It is for the reason thatany right of revision or approachingby invoking Section 482 Cr.P.C orwrit jurisdiction no way substitute tothe right of appeal. Thereby also, itis the duty of the appellant-complainant rather than approachingthe High Court for filing appeal withleave under Section 378(4) Cr.P.C;to approach the Court of Sessionwhere no leave is required to filesuch appeal there. Needless to sayby virtue of the amended provisionwithout invoking the Court of Sessionfor filing appeal against acquittal,approaching the high Court by sayingconcurrent right and therefrom,granting leave by the Court byexercise of discretion since amountsto interference with such right ofaccused and taking away anotherfuture right of appeal in suchcontingency to approach the HighCourt and as the discretion is to beexercised judiciously within thecanons of law, and this is when takeninto consideration, this Court under

35

Smt.P. Vijaya Laxmi Vs. Smt.S.P.Sravana & Anr. 259Section 378(4) Cr.P.C., must be slowfor grant of such leave but for anyspecial reasons and for anyexceptional circumstances to accordby so assigning besides the partyapproaching for filing appeal to satisfyby giving the reasons and exceptionalcircumstances in the leaveapplication. As such, no appellant ofappeal against acquittal can say thatthere are two forums with concurrentjurisdiction available and he got rightto approach any of the forums andthereby can file appeal before theHigh Court and grant of leave or notis though the discretion of the HighCourt on such filing.

The thrust of the opinion of the learnedJudge appears to be that by allowing dualityof remedies to a complainant/victim, theright of the accused to a remedy would beprejudicially affected in the event theacquittal is overturned. The learned Judgewas therefore of the view that under Section378(4) of the Code, this Court should beslow to grant special leave and only forspecial reasons and in exceptionalcircumstances, such leave should begranted. The learned Judge opined that anabsolute statutory right of appeal withoutthe need of seeking leave was conferredupon the victim against an order of acquittalin 2009, by virtue of the amendment of theCode. The learned Judge therefore held thatan appeal would have to be filed before theCourt of Session in exercise of the absolutestatutory right provided by the proviso toSection 372 of the Code and not to theHigh Court with a petition seeking leave tofile an appeal under Section 378(4) of the

Code. The learned Judge categorically heldthat the victims right of appeal under theproviso to Section 372 of the Code wasin no way controlled by Section 378(3) ofthe Code and there was nothing to inferany requirement of leave as in Section 378(4)of the Code so as to present an appealunder Section 372 proviso against an orderof acquittal or conviction of a lesser offenceor for inadequate compensation. The learnedJudge further observed that in matters whereleave was already granted under Section378(4) of the Code and appeals wereadmitted against acquittals in cheque-dishonour cases, this Court can, for sub-serving the ends of justice, direct theSessions Court to hear and dispose of thesaid appeals on merits by making themover. Exercising such power under Section381(2) read with Section 482 of the Code,the learned Judge made over the appealpreferred to this Court under Section 378(4)of the Code to the Sessions Court.

It is pertinent to note that the view expressedby the learned Judge to the effect that noleave under Section 378(3) of the Code isnecessary for filing an appeal under theproviso to Section 372 of the Code is notgood law in the light of the recent judgmentof the Supreme Court in SATYA PAL SINGHV/s. STATE OF M.P.(7) , wherein it washeld that the proviso to Section 372 of theCode must be read along with the mainenactment, i.e., Section 372 itself, and withSection 378(3), as reading it otherwise wouldrender the substantive provision of Section372 of the Code nugatory. The SupremeCourt concluded that the right of questioning

7. 2016 (1) ALD (Crl.) 288 (SC) : (2015)15 SCC 613

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260 LAW SUMMARY (Hyd.) 2017(3)the correctness of the order of acquittal bypreferring an appeal to the High Court isconferred upon the victim, including the legalheir and others, as defined under Section2(wa) of the Code, under the proviso toSection 372 but only after obtaining leaveof the High Court as required under Section378(3) of the Code. In the light of thisauthoritative edict by the Supreme Court,the judgments of various High Courts holdingto the contrary, referred to hereinafter, nolonger constitute good law.

In TAMILNAD MERCANTILE BANK LTD.3,the learned Judge who decided PETTASATYA GOVINDA RAMACHANDRA RAO@ BABJI2 again had an occasion to dealwith the issue. This case also involvedconviction of an accused under Section 138of the Act of 1881. Aggrieved by theconvictions and sentences, the accusedpreferred criminal revision petitions beforethe Sessions Court under Section 397 ofthe Code. The Sessions Court allowed boththe revisions and set aside the convictionsby the trial Court. Aggrieved thereby, thecomplainant preferred appeals before thisCourt. The accused contended before thisCourt that the appeals were notmaintainable. The learned Judge opined thateven against an order of acquittal passedby a revision Court in a case arising outof a private complaint, an appeal would lieto the High Court. The learned Judge furtherobserved that by virtue of the proviso toSection 372 of the Code, any order passedby a Court acquitting an accused wouldbe appealable by the victim thereunder. Thelearned Judge therefore opined that underthe proviso to Section 372 of the Code, anappeal would lie against the revisional order

of acquittal of the Sessions Court reversingthe conviction by the trial Court.

In OMANA JOSE4, a Division Bench of theKerala High Court was also dealing withthe question as to whether an appeal wouldlie to the Sessions Court under the provisoto Section 372 of the Code against theacquittal of the accused in a case underSection 138 of the Act of 1881. Earlier, onelearned Judge of the Kerala High Court hadheld that such an appeal would not lie tothe Sessions Court but only to the HighCourt under Section 378(4) of the Code,while another learned Judge held to thecontrary in a subsequent case. The issuewas therefore referred to a Division Bench.The Division Bench held that a complainantin a case under Section 138 of the Act of1881 could not challenge the order ofacquittal before the Sessions Court underthe proviso to Section 372 of the Code andhis only remedy is to file an appeal to theHigh Court with special leave under Section378(4) of the Code. The Division Benchstated that before amendment of the Codein 2009, the remedy available to acomplainant against an order of acquittalin a case instituted on a complaint wasto file an appeal under Section 378(4) ofthe Code before the High Court with specialleave. This provision remained intact evenafter the amendment. Though drasticchanges were made to the said provisionin the year 2005, Section 378(4) was notamended. The Division Bench thereforeopined that it could not be assumed thatthe Parliament was not aware of the remedyprovided under Section 378(4). Adverting tothe fact that before this amendment, in acase instituted on a police report, the victim

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Smt.P. Vijaya Laxmi Vs. Smt.S.P.Sravana & Anr. 261could only challenge the order of acquittalby way of a revision under Section 397 ofthe Code and after the amendment andintroduction of Section 2(wa) defining avictim, such a victim was conferred withthe right of preferring an appeal to theSessions Court against an order passedby the trial Court acquitting the accusedor convicting him of a lesser offence orawarding inadequate compensation, theDivision Bench pointed out that if it is tobe construed that a complainant could alsofile an appeal to the Sessions Court underSection 372 proviso or to the High Courtunder Section 378(4) of the Code, it wouldmean that a complainant in a complaintcase would have two remedies and if hechooses the remedy under Section 372proviso, he could file an appeal as of rightto the Sessions Court without leave andif he files an appeal under Section 378(4)of the Code, special leave is required. TheBench was of the view that the law makerswould not have wanted to provide tworemedies to a complainant in a complaintcase, who is also a victim, as there is noprovision either in Section 372 or in Section378 of the Code that, when an appeal againstan order of acquittal filed before the SessionsCourt by the complainant is dismissed,such a complainant is precluded from filingan appeal before the High Court underSection 378(4) of the Code. As the saidprovision does not state that an appeal liesto the High Court only against an originalorder of acquittal, the Division Bench opinedthat if the provisions are to be interpretedto mean that Section 372 proviso coversan appeal against acquittal in a complaintcase also, nothing would prevent thecomplainant from filing a further appeal to

the High Court under Section 378(4) of theCode if the Sessions Court also acquitsthe accused, confirming the order of acquittalpassed by the trial Court. Concluding thatthe amendment of the Code in 2009 wasnot with the intention of providing multipleremedies to a complainant, the DivisionBench observed that the law makers didnot confer concurrent jurisdiction on theSessions Court and the High Court toentertain an appeal by the complainantagainst acquittal in a complaint case. TheDivision Bench observed that the expressionunless the context otherwise requiresoccurring in Section 2 is a helpful tool forinterpreting the proviso to Section 372 toresolve the question as to whether the termvictim would take within its purview acomplainant in a complaint case andconcluded that the expression victim wouldexclude the complainant in a complaint-case from the purview of Section 2(wa) ofthe Code.

In KAILASH MURARKA5, a Division Benchof the Chhattisgarh High Court held thata complainant is not entitled to prefer anappeal under the proviso to Section 372of the Code before the Sessions Courtagainst an order of acquittal passed by asubordinate Criminal Court arising out ofa criminal complaint filed by the complainantand that such a complainant is requiredto prefer an appeal under Section 378(4)of the Code before the High Court afterobtaining special leave. It was observedthat in a case instituted upon a complaint,the complainant has much of a role to playin the Court proceedings whereas, as isapparent from the Statement of Objectsand Reasons of Act No.5 of 2009, changes

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262 LAW SUMMARY (Hyd.) 2017(3)were brought in with a view to give certainrights to the victims in cases based onpolice reports, including the right tocompensation, as they did not have muchof a role in Court proceedings. The DivisionBench therefore concluded that incorporationof the proviso to Section 372 of the Codeby Act No.5 of 2009, thereby providing aright of appeal to the victim, would notcome to the aid of those victims who qualifyas complainants, already having sufficientrole in the Court proceedings.

In TATA STEEL LTD.6, a Full Bench of thePunjab & Haryana High Court summed upits conclusions on this issue as under:

Question (B)(iii) The complainant ina complaint-case who is also a victimand the victim other than acomplainant in such case, shall haveremedy of appeal against acquittalunder Section 378(4) only, exceptwhere he/she succeeds inestablishing the guilt of an accusedbut is aggrieved at the conviction fora lesser offence or imposition of aninadequate compensation, for whichhe/she shall be entitled to avail theremedy of appeal under proviso toSection 372 of the Code.

(iv) The victim who is not thecomplainant in a private complaint-case, is not entitled to prefer appealagainst acquittal under proviso toSection 372 and his/her right toappeal, if any, continues to begoverned by the unamendedprovisions read with Section 378(4)of the Code.

(v) those victims of complaint-caseswhose right to appeal have beenrecognized under proviso to Section372, are not required to seek leaveor special leave to appeal from theHigh Court in the mannercontemplated under Section 378(3)& (4) of the Code.

Question (E) (vii) In view of the provisoto Section 372 an appeal preferredby a victim against an order ofacquittal passed by a Magistrate inrespect of a cognizable offencewhether bailable or nonbailable shalllie to the Court of Session, the Statesappeal under Section 378(1)(a) of theCode against the very order shall beentertained and/or transferred to thesame Sessions Court.

In DHANNE SINGH V/s. STATE OFRAJASTHAN(8) , a Division Bench of theRajasthan High Court took the same viewas was expressed by the Full Bench ofthe Punjab & Haryana High Court in TATASTEEL LTD.6 and answered the referenceto the effect that the complainant in acomplaint case who is also a victim anda victim, other than a complainant in sucha case, would have the remedy of an appealagainst acquittal only under Section 378(4)of the Code, except where the complainantsucceeds in establishing the guilt of theaccused but is aggrieved by his conviction

8. LAWS(RAJ)-2014-12-22 : 2014 SCCOnLine Raj 5499 : Order dated 02.12.2014in Criminal Revision Petition Nos.411/2012and 145/2013

39

Smt.P. Vijaya Laxmi Vs. Smt.S.P.Sravana & Anr. 263of a lesser offence or award of inadequatecompensation and in such cases, thecomplainant shall be entitled to avail theremedy of appeal under Section 372 proviso.The Division Bench further held that a victimwho is not the complainant in a privatecomplaint case is not entitled to prefer anappeal against acquittal under Section 372proviso and his right, if any, continues tobe governed by Section 378(4) of the Code.The Division Bench also observed that noleave or special leave was required to filean appeal under Section 372 proviso andthat the right conferred thereunder is asubstantive and independent right.

Pertinent to note, the Supreme Court, inDAMODAR S. PRABHU V/s. SYEDBABALAL H.(9) , opined as under:

20. It may be noted here that Section 143of the Act makes an offence under Section138 triable by a Judicial Magistrate, FirstClass (JMFC). After trial, the progressionof further legal proceedings would dependon whether there has been a conviction oran acquittal.

In the case of conviction, an appealwould lie to the Court of Sessionsunder Section 374(3)(a) CrPC;thereafter a revision to the High Courtunder Sections 397/401 CrPC andfinally a petition before the SupremeCourt, seeking special leave to appealunder Section 136 of the Constitutionof India. Thus, in case of convictionthere will be four levels of litigation.

In the case of acquittal by JMFC,

the complainant could appeal to theHigh Court under Section 378(4)CrPC, and thereafter for special leaveto appeal to the Supreme Court underArticle 136. In such an instance,therefore, there will be three levelsof proceedings.

In SUBHASH CHAND V/s. STATE (DELHIADMINISTRATION)(10) , the Supreme Courtwas dealing with the validity of an orderpassed by the High Court of Delhi holdingto the effect that an appeal filed by theState against the order of acquittal thereinwould lie to the Sessions Court underSection 378(1) of the Code and not to theHigh Court under Section 378(4) thereof.The Supreme Court encapsulated the pointfor consideration thus: whether in acomplaint case, an appeal from an orderof acquittal of the Magistrate would lie tothe Sessions Court under Section 378(1)(a)of the Code or to the High Court underSection 378(4) thereof. Referring to the LawCommissions 154th and 221st reportsopining that there was no provision in theCode under which an appeal in a complaintcase could be filed in the Sessions Court,the Supreme Court expressed agreementwith the said opinion. The Supreme Court,upon analysis of Section 378 of the Code,observed that it is clear therefrom that theState Government cannot direct the PublicProsecutor under Sections 378(1)(a) and(b) to file an appeal against an order ofacquittal passed by a Magistrate in respectof a cognizable and non-bailable offencebecause of the categorical bar created bySection 378(1)(b) of the Code. Pointing outthat such appeals can only be filed in the

9. (2010) 5 SCC 663 10. (2013) 2 SCC 17

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264 LAW SUMMARY (Hyd.) 2017(3)Sessions Court at the instance of the PublicProsecutor or as directed by the DistrictMagistrate, the Supreme Court observedthat in all other cases where orders ofacquittal are passed, appeals would be filedby the Public Prosecutor as directed bythe State Government only before the HighCourt. Referring to Section 378(4) of theCode, the Supreme Court stated that itmade provision for appeals against ordersof acquittal in cases instituted uponcomplaints and in such cases, after thecomplainant makes an application to theHigh Court and the High Court grants specialleave to appeal, the complainant maypresent his appeal to the High Court. TheSupreme Court observed that as the saidsub- section speaks of special leave, asopposed to leave in sub-section (3) ofSection 378 of the Code, the complainantsappeal against an order of acquittal is acategory by itself. The Supreme Court furtherobserved that a complainant could be aprivate person or a public servant, as isevident from Section 378(5) which speaksof six months time to file the applicationfor special leave where the complainant isa public servant and sixty days in everyother case. The Supreme Court pointed outthat Section 378(6) of the Code wasimportant and that it stated to the effectthat if in any case, the complainantsapplication for special leave is refused, noappeal from the order of acquittal would lieat the behest of the State Governmentthereafter, under sub-sections (1) or (2) ofSection 378 of the Code. In effect, if specialleave is not granted to the complainant toappeal against an order of acquittal, thematter must end there. Neither the DistrictMagistrate nor the State Government can

appeal against such order of acquittal. TheSupreme Court opined that the ideaappeared to be to accord quietus to thecase in such a situation. The SupremeCourt further concluded that a complainantcan file an application for special leave toappeal against an order of acquittal of anykind only to the High Court and he cannotfile such an appeal in the Sessions Court.This judgment was delivered on 08.01.2013,long after insertion of Section 2(wa) andthe proviso to Section 372 in the Code.

In THE BHAJANPURA COOPERATIVEURBAN THRIFT & CREDIT SOCIETY LTD.V/s. SUSHIL KUMAR(11) , a learned Judgeof the Delhi High Court took the view tothe effect that the remedy available to acomplainant in a case under Section 138of the Act of 1881 against an order of acquittalis only to seek special leave to file anappeal under Section 378(4) to the HighCourt and not under Section 372 provisoof the Code.

In D.SUDHAKAR V/s. PANAPUSREENIVASULU @ EVONE WATERSREENIVASULU (12), a Division Bench ofthis Court, drawing support from NATIONALCOMMISSION FOR WOMEN V/s. STATEOF DELHI(13) , held that as the amendmentto Section 372 of the Code came into theeffect only on 31.12.2009 creating a rightin the victim to prefer an appeal, such anamendment would have no application to

10. (2013) 2 SCC 1711. 2015 (1) NIJ 166 (Del) : Judgment dated03.09.2014 in Crl.A.Nos.972 and 1163of 201212. 2013 (1) ALD (Crl.) 366 (AP)13. 2010 (1) SCALE 17

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Smt.P. Vijaya Laxmi Vs. Smt.S.P.Sravana & Anr. 265cases where the incident took place priorthereto.

In M/S. HILL RANGE POWER PROJECTDEVELOPERS V/s. M/S. ACCIONA WINDENERGY PRIVATE LTD(14). , a learnedJudge of the Karnataka High Court opinedthat the word complainant in the provisoto Section 142 of the Act of 1881 and avictim as per Section 2(wa) of the Codeare not one and the same and therefore,such a complainant cannot maintain anappeal under Section 372 proviso.

In M/S. TOP NOTCH INFOTRONIX (I) PVT.LTD. V/s. M/S. INFOSOFT SYSTEMS(15), a learned Judge of the Bombay High Courtat Nagpur opined that Section 372 provisodoes not, in any manner, affect theprovisions of Section 378(4) of the Codewhich deals with an appeal against theorder of acquittal in a case instituted upona complaint. It was therefore held thatagainst acquittal in a case instituted by acomplainant under Section 138 of the Actof 1881, an appeal would only lie to theHigh Court under Section 378(4).

Similar was the view taken by anotherlearned Judge of the Bombay High Courtat Aurangabad in SOW. KALPANA V/s.THE STATE OF MAHARASHTRA(16) . Thelearned Judge categorically held that suchan appeal would not come within the purview

and ambit of the amended provisions ofSection 372 of the Code and the remedyprovided to the person aggrieved by anacquittal in a cheque-bounce case underSection 138 of the Act of 1881 was onlybefore the High Court in terms of Section378(4) of the Code, upon seeking leave.

In M.K.PRODUCTS V/s. M/S. BLUEOCEAN EXPORTS (P) LTD(17). , a learnedJudge of the Calcutta High Court agreedwith the view taken in OMANA JOSE4 andheld that that a complainant in a caseunder Section 138 of the Act of 1881 couldnot challenge the order of acquittal beforethe Sessions Court under the proviso toSection 372 of the Code and that his remedyis to file an appeal to the High Court withspecial leave under Section 378 of the Code.

In S.GANAPATHY V/s. N.SENTHILVEL(18), a Full Bench of the Madurai Bench ofthe Madras High Court dealt with the issueas to whether an appeal would bemaintainable under Section 378 of the Code,beyond the period of sixty days prescribedunder Section 378(5) thereof, at the behestof the complainant in a case arising underSection 138 of the Act of 1881 The questionsframed for consideration by the Full Benchwere as under:

1. Whether a victim of a crime, who hasprosecuted an accused by way of a privatecomplaint, does not have statutory right ofappeal against acquittal under proviso toSection 372 of the Code of CriminalProcedure

14. Order dated 24.02.2015 in CriminalPetition No.6072/201415. Order dated 16.06.2011 in CriminalApplication (APPA) No.708/201016. Oral Judgment dated 09.01.2013 inCriminal Revision Application No.158 of2012

17. Judgment dated 01.09.2016 in CRRNo.3793 of 201418. 2016 ALL MR (Cri.) Journal 492

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2. Whether a complainant, in a privatecompliant case, who is not a victim,has got the remedy to seek onlyleave to file appeal under Section378(4) of the Code of CriminalProcedure in the event of acquittalof the accused

3. In a private complaint case, if avictim does not happen to be acomplainant and in the event ofacquittal, whether he has got rightof appeal under proviso to Section372 of the Code of Criminal Procedureor he has to seek leave to file appealunder Section 378(4) of the Code ofCriminal Procedure

4. Whether a victim in a caseinstituted on a police report, has abetter place in the criminal justicedelivery system than a victim in aprivate complaint case

5. Whether the term victim as definedin Section 2(wa) of the Code ofCriminal Procedure excludes acomplainant in a private complaintcase, though he has suffered lossor injury on account of the offencecommitted against him and

6. Whether the view held in thejudgment of this Court in SelvarajVs.Venkatachalapathy, reported in2015 (1) MWN (Cr) DCC 26 (Mad.),reflects correct exposition of law orthe same requires to be overruled

Earlier, in SELVARAJ V/s.

VENKATACHALAPATHY(19) , a learnedJudge of the Madras High Court opined thatvictim in Section 372 proviso would notinclude a complainant in a complaint caseand the term victim used in the said provisoshould be confined only to victims in casesinstituted otherwise than on a complaint.

The Full Bench recorded its conclusionson the questions posed to it as under:

(1) A victim of the crime, who has prosecutedan accused by way of a private complaint,has a statutory right of appeal within thelimits prescribed under Section 372 ofCr.P.C.

(2) A complainant (in a private complaint),who is not a victim, has a remedy and canfile an appeal in the event of acquittal ofthe accused after obtaining leave to appealunder Section 378(4) of Cr.P.C.

(3) In a private complaint, even if the victimis not a complainant, he has a right toappeal under the proviso to Section 372of Cr.P.C., but he has to seek leave as heldby the Supreme Court in Satyapal Singh.

(4) The term victim has been correctlyinterpreted by the Full Bench of the DelhiHigh Court in Ramphal and we are inagreement with the same.

(5) A victim (as defined under Section 2(wa)of the Cr.P.C. does not cease to be a victimmerely because he also happens to be acomplainant and he can avail all the rightsand privileges of a victim also and (6) Thedecision of the Single Judge in Selvaraj19. 2015 (1) MWN (Cr) DCC 26 (Mad.)

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Smt.P. Vijaya Laxmi Vs. Smt.S.P.Sravana & Anr. 267holding that the term victim found in Section372 excludes a complainant, is not legallycorrect and in a given case, a complainant,who is also a victim, can avail right grantedunder Section 372 of Cr.P.C.

On a more general note, in SUMITOMOCORPORATION V/s. CDC FINANCIALSERVICES (MAURITIUS) LTD.(20) , theSupreme Court observed that an appeal isa statutory remedy and can only lie to thespecified forum. The appellate forum cannotbe decided on the basis of cause of actionas applicable to original proceedings suchas a suit, which could be filed in any Courtwhere part of the cause of action arises.Earlier, in STRIDEWELL LEATHERS (P)LTD. V/s. BHANKERPUR SIMBHAOLIBEVERAGES (P) LTD(21). , the SupremeCourt observed that ordinarily, substitutionof a new forum for the existing forum ofappeal should not be readily inferred in theabsence of a clear provision to that effector at least any incongruity resulting fromthat view. It was further observed thatexpress provision would be made in thestatutory amendment to indicate a differentor substituted appellate forum than theexisting appellate forum if that was theintention of the amendment of jurisdictionof the Court for the purpose of an appealhad been altered in any manner and theabsence of any indication in the amendmentto suggest any change or substitution inthe appellate forum is a pointer in thedirection that the same continued unaltered.

As regards the sanctity of the remedyprovided, reference may be made to

MUKUND DEO (DEAD) REPRESENTEDBY HIS LEGAL REPRESENTATIVESKASIBAI AND OTHERS V/s. MAHADU ANDOTHERS(22) , wherein the Supreme Courtfound on facts that under Section 602 ofthe Hyderabad Civil Procedure Code, 1328Fasli, a second appeal lay to the HighCourt on questions of fact as well as oflaw and this was the position in law onthe date the suit was instituted. However,the said Code was repealed and when theCode of Civil Procedure, 1908, was extendedto Hyderabad State, after it became partof the Indian Union, second appeals beforethe High Court were maintainable underSection 100 thereof. It was therefore arguedthat the High Court could not set aside thefindings of fact. The Supreme Court howeverdisagreed and observed that as a generalrule, alterations in law of procedure wouldbe retrospective, but a right of appeal toa particular forum is a substantive right andis not lost by alteration in the law, unlessprovision is made expressly in that behalfor by necessary implication.

Again, in PANDURANG V/s. STATE OFMAHARASHTRA(23) , the Supreme Courtobserved that when a matter required tobe heard by a Division Bench of the HighCourt but is decided by a learned singleJudge, such a judgment would be a nullityas the accused was entitled to have hiscase heard and claim a verdict as regardshis guilt or innocence at the hands of twolearned Judges and such right could notbe taken away except by amending therules and so long as the rules remainedin operation, it would be arbitrary and

20. (2008) 4 SCC 9121. (1994) 1 SCC 34

22. AIR 1965 SC 70323. (1986) 4 SCC 436

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268 LAW SUMMARY (Hyd.) 2017(3)discriminatory to deny him this right.

On similar lines, in COMMISSIONER OFINCOME TAX, ORISSA V/s. DHADI SAHU(24), the Supreme Court observed that nolitigant had a vested right in a matter ofprocedural law but where the question isof change of forum, it ceases to beprocedure only as the forum of appeal isa vested right as opposed to pure procedureto be followed before a particular forum. Itwas further observed that the right becomesvested when the proceedings are initiatedin the tribunal or the Court of first instanceand unless the legislature has, by expresswords or by necessary implication, clearlyso indicated, that vested right would continuein spite of the change of jurisdiction of thedifferent tribunals or fora.

In HIMACHAL PRADESH STATEELECTRICITY REGULATORYCOMMISSION V/s. HIMACHAL PRADESHSTATE ELECTRICITY BOARD(25) , theSupreme Court culled out three basicprinciples from earlier case law:

22.1. The forum of appeal availableto a suitor in a pending action of anappeal to a superior tribunal whichbelongs to him as of right is a verydifferent thing from regulatingprocedure;

22.2. That it is an integral part ofthe right when the action was initiatedat the time of the institution of action;and 22.3. That if the court to whichan appeal lies is altogether abolished

without any forum constituted in itsplace for the disposal of pendingmatters or for lodgment of theappeals, vested right perishes.

The Supreme Court concluded that thatwhat is unaffected by repeal of a statuteis a right acquired under it and not a merehope or expectation of, or liberty to applyfor, acquiring the right.

On the aspect of interpretation of statutes,the following case law is of guidance: InSTATE OF MAHARASHTRA V/s.MARWANJEE F. DESAI(26) , theSupreme Court observed that the statutehas to be considered in its entirety andpicking up one word from one particularprovision and thereby analyzing it in amanner contrary to the Statement of Objectsand Reasons is neither permissible norwarranted. Adverting to the fixed canons ofconstruction and interpretation of statutes,the Supreme Court held that a statutecannot be read in the manner as was doneby the High Court and the true intent ofthe legislature has to be gathered anddeciphered in its true spirit, having dueregard to the language used therein. TheStatement of Objects and Reasons washeld to be undoubtedly an aid toconstruction and a useful guide but theinterpretation and the intent should begathered from the entirety of the statuteand when language of the Section providingan appeal to a forum is clear and categorical,no external aid is permissible whileinterpreting the same. The Supreme Courtwas of the view that once the legislaturehad deliberately used every order, if a24. 1994 Supp (1) SCC 257

25. (2014) 5 SCC 219 26. (2002) 2 SCC 318

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Smt.P. Vijaya Laxmi Vs. Smt.S.P.Sravana & Anr. 269restrictive meaning is attributed, as wasdone by the High Court, the word everybecomes totally redundant, but as thelegislature avoids redundancy, all the wordsused in the provision have to be attributedmeaning and attribution of any meaning tothe word every by itself would negate theinterpretation that found favour with the HighCourt. As the word every was totally ignored,the Supreme Court held that it was neitherpermissible nor warranted.

Again, in PERUMAL V/s. JANAKI(27) , theSupreme Court observed that the languageof Section 195(4) of the Code creates alegal fiction whereby it is declared that theoriginal Court is subordinate to that Courtto which appeals ordinarily lie from thejudgments or orders of the original Courtand such a fiction must be understood inthe context of Article 227 of the Constitutionand Sections 10(1) and 15(1) of the Code.The Supreme Court further observed thateach one of the streams of the Courtsunder Sections 10(1) and 15(1) of the Codehave their administrative hierarchy dependingupon the law by which they were broughtinto existence and certain Courts haveappellate jurisdiction while certain Courtshave original jurisdiction. As appellatejurisdiction is a creature of the statute anddependent upon the scheme of a particularstatute, the Supreme Court held that theforum of appeal would vary and generally,such appellate fora are created on the basisof either subject-matter of the dispute oreconomic implications or nature of crime,etc.

In RAKESH KUMAR PAUL V/s. STATE OF

ASSAM(28) , the Supreme Court observedas under:

While interpreting any statutoryprovision, it has always beenaccepted as a golden rule ofinterpretation that the words used bythe legislature should be given theirnatural meaning. Normally, the courtsshould be hesitant to add words orsubtract words from the statutoryprovision. An effort should always bemade to read the legislative provisionin such a way that there is nowastage of words and anyconstruction which makes somewords of the statute redundant shouldbe avoided. No doubt, if the naturalmeaning of the words leads to aninterpretation which is contrary tothe objects of the Act or makes theprovision unworkable or highlyunreasonable and arbitrary, then theCourts either add words or subtractwords or read down the statute, butthis should only be done when thereis an ambiguity in the language used.In my view, there is no ambiguity inthe wording of Section 167(2) of theCode and, therefore, the wise coursewould be to follow the principle laiddown by Patanjali Shastry, CJI inAswini Kumar Ghose v. ArabindaBose, AIR 1952 SC 369, where hevery eloquently held as follows:

It is not a sound principle of constructionto brush aside words in a statute as beinginapposite surplusage, if they can haveappropriate application in circumstances

27. (2014) 5 SCC 377 28. 2017 SCC OnLine SC 924

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270 LAW SUMMARY (Hyd.) 2017(3)conceivably within the contemplation of thestatute.

Sri Anand Kumar Kapoor, learned counsel,would point out that a complaint case underSection 138 of the Act of 1881 is tried asa summons case, within the meaning ofSection 2(w) of the Code, and the procedurefor trial of such a case is as per ChapterXX of the Code. He would submit that nocharge is framed in such a case and specificprovision for an appeal remedy is madeunder Section 378(4) of the Code for anaggrieved complainant in the event ofacquittal of the accused. He would pointout that a victim as defined in Section 2(wa)of the Code has to be construed strictlyin terms of the language used therein andthat a complainant in a cheque-bouncecomplaint case under Section 138 of theAct of 1881 cannot be brought within theambit of victim as defined thereunder. Hewould point out that in SUBHASHCHAND10, the Supreme Court, despitebeing aware of the changes in the Code,did not advert to the proviso to Section 372of the Code and merely held that an appealwould lie from an acquittal to the High Courtunder Section 378(4) of the Code and notto the Sessions Court under Section378(1)(a) of the Code.

The learned Public Prosecutor for the Stateof Andhra Pradesh supported Sri AnandKumar Kapoor, learned counsel. He wouldsubmit that Section 372 proviso of the Codeprovides a victim the right of preferring anappeal only in cases arising out of a policereport as earlier, the limited remedy availableto such a victim when the trial Courtacquitted the accused was to prefer a

revision under Section 397 of the Codewhich, at best, could only result in thesetting aside of the acquittal and aconsequential remand but not a conviction.The legislature, in its wisdom, thereforewished to provide a separate recourse tosuch an aggrieved victim by allowing anappeal at his behest. Therefore, acomplainant in a case arising out of a privatecomplaint, who was already provided theright of appeal under Section 378(4) of theCode, cannot be permitted to take recourseto Section 372 proviso of the Code. LearnedPublic Prosecutor would point out that aDivision Bench of the Gauhati High Courtin PAYE MOSING V/s. NABA BORA @JALIA(29) dealt with the question of limitationin relation to an appeal filed by a victimunder the proviso to Section 372 and,disagreeing with the view taken by the PatnaHigh Court in PARMESHWAR MANDAL V/s. STATE OF BIHAR (30), held that onextension of an existing right (forenforcement of which the period of limitationhas already been prescribed under the law)to a new class/classes of persons, suchexisting law of limitation, applicable to theold class/classes of persons, shallautomatically be applicable to the new class/classes of persons in whose favour suchright has subsequently been extended. TheDivision Bench accordingly applied the lawof limitation to such appeals also. He wouldpoint out that the limitation adopted wason par with the limitation applicable toappeals arising out of cases based on policereports and therefore, a complainant in aSection 138 complaint case under the Act

29. 2015 SCC OnLine GAU 505 : (2017)1 GAU LR 47130. (2014) CrLJ 1046

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Smt.P. Vijaya Laxmi Vs. Smt.S.P.Sravana & Anr. 271of 1881 could not be put on par with a victimunder Section 2(wa) of the Code.

The learned Public Prosecutor for the Stateof Telangana would refer to the judgmentof the Chhattisgarh High Court in KAILASHMURARKA5 and point out that para 2 ofthe Statement of Objects and Reasons ofAct No.5 of 2009, referred to therein, reflectsthe concern for victims by summing up thatat present the victims are worst sufferersin a crime and they do not have much rolein Court proceedings. They need to be givencertain rights and compensation so thatthere is no distortion of the criminal justicesystem. He would assert that thisobservation would manifest that acomplainant in a case arising out of a privatecomplaint, who already plays a major rolein the Court proceedings, cannot be broughtwithin the ambit of victim under Section2(wa) introduced under Act No.5 of 2009.He would also rely on OMANA JOSE4,wherein the Kerala High Court observedthat before amendment of the Code underAct No.5 of 2009, a victim in a case institutedon a police report could only challenge theorder of acquittal by filing a revision underSection 397 of the Code and it was onlythe State which could direct the PublicProsecutor to present an appeal to the HighCourt from an original or appellate order ofacquittal passed by any Court other thanthe High Court or an order of acquittal passedby a Court of Session in revision. He wouldpoint out that the legislature cannot beassumed to be ignorant of Section 378(4)of the Code, whereunder the specific remedyof appeal was already provided to acomplainant against the acquittal of anaccused in a case arising out of a private

complaint.

At the outset, it would be necessary tounderstand and delineate the contours ofa complainant in the scheme of the Code.Though the term complainant has not beendefined thereunder, sufficient guidance isavailable to understand its content andimport from the definition of a complaintunder Section 2(d) of the Code. This definitionmakes it clear that a police report is notincluded in the ambit of a complaint, asdefined, but the explanation appendedthereto indicates that such a police reportshall be deemed to be a complaint and thepolice officer making such police report shallbe deemed to be the complainant therein.The distinction between a private complainantand the police officer submitting a policereport, who is deemed to be a complainantin that case, is therefore clear. The victimor his near relation, in the case of homicide,who gives information to the police as tothe commission of a non-cognizable offence,though they are the actual affected parties,do not assume the status of a complainantin that case and it is only the police officerwho finally submits the police report underSection 173 of the Code, who is conferredthe deemed status of being the complainantin that case. In consequence, in a criminalcase arising out of a police report underSection 173 of the Code, the actual victimor his near relation, in the case of homicide,has a very limited participatory role. Thelaw, as it existed prior to amendment ofSection 372 of the Code, only provided forappeals being preferred against acquittal insuch cases by the State. The victim or hisnear relation in a case of this nature onlyhad the right of preferring a revision under

48

272 LAW SUMMARY (Hyd.) 2017(3)Section 397 of the Code, if an order ofacquittal was passed therein. As it was feltthat this limited remedy of revision was notadequate, as the scope of interference ina revision would be far less than in anappeal, the law makers thought it fit toprovide the right of appeal to such a victimor his near relation by inserting the provisoto Section 372 of the Code. This being oneaspect, Section 142 of the Act of 1881demonstrates that cognizance of an offenceunder Section 138 thereof would not betaken by the Court except upon the writtencomplaint of the payee of the cheque orits holder in due course. Therefore, law isset in motion in such a case upon theprivate complaint itself and the police havelittle role to play. It is the complainant whopractically prosecutes the accused in thecase. However, the scheme of the Act of1881 does not visualize the complainantin such a case being compensated and noprovision is made for awarding himcompensation. Section 138 of the Act of1881 merely speaks of levy of a fine uponthe accused which may extend to twicethe amount of the cheque. The use of theword fine in the provision clearly indicatesthat the levy is punitive in nature and notcompensatory. The complainant wouldtherefore have no say in the quantum ofthe fine levied and it would be entirely withinthe judicious discretion of the Court to fixthe same.

From the scheme of the Code, it is clearthat after amendment of Section 378 in theyear 2005, which came into effect on23.06.2006, appeals against acquittals hadto be in conformity therewith. Under 378(1)(a)thereof, the District Magistrate was

empowered to direct the Public Prosecutorto present an appeal to the Sessions Courtfrom an order of acquittal passed by aMagistrate in respect of a cognizable andnon-bailable offence in any case. UnderSection 378(1)(b) thereof, the StateGovernment was empowered in any caseto direct the Public Prosecutor to presentan appeal to the High Court from an originalor appellate order of acquittal passed byany Court other than the High Court notbeing an order falling within the ambit ofClause (a) of that sub-section or an orderof acquittal passed by a Court of Sessionin revision. Section 378(2) provided for filingof appeals to the Court of Session or tothe High Court in cases investigated by theDelhi Special Police Establishment or byany other agency under a Central Act otherthan the Code. Section 378(3) made it clearthat no appeal would lie to the High Courtunder Sections 378(1) or (2) except withthe leave of the High Court. Section 378(4)provided for an appeal by the complainantagainst an order of acquittal passed in anycase instituted upon a complaint and theforum created for such an appeal was theHigh Court which had to grant special leaveto appeal to the complainant for presentingsuch an appeal. Section 378(5) made itclear that grant of special leave to appealunder sub-section (4) had to be within sixmonths where the complainant was a publicservant and within sixty days in every othercase, computed from the date of the orderof acquittal. Finality was given under Section378(6) to the order of acquittal if the HighCourt refused grant of special leave to appealtherefrom under Section 378(4) and noappeal could lie thereafter against suchacquittal either under Section 378(1) or (2).

49

Smt.P. Vijaya Laxmi Vs. Smt.S.P.Sravana & Anr. 273Therefore, even as on the date of amendmentof the Code vide the Act No.5 of 2009, acomplainant in a case arising out of a privatecomplaint had the right to prefer an appealto the High Court against acquittal therein,with special leave. As rightly pointed out,it cannot be presumed that the legislaturewas unaware of the existing appellateremedy while creating a right of appeal infavour of a victim, by inserting Section 2(wa)in the Code along with a proviso to Section372 thereof. Had it been the intention ofthe legislature to provide dual remedies tosuch a complainant by allowing him to comewithin the ambit of a victim under Section2(wa) and avail the right of appeal underthe proviso to Section 372, express mentionwould have been made of the same. Beit noted, Section 397 of the Code specificallyconfers upon an aggrieved party the rightof revision either before the Sessions Courtor before the High Court and once the remedyof revision is invoked before either of theaforestated fora, a further revision would notlie thereunder to the other forum.

Significantly, apart from the aforestatedaspects, there is a more decisive factor tobe taken into account to decide thecontroversy. Section 2(wa) of the Codespeaks of a victim being a person who hassuffered any loss or injury by reason of theact or omission for which an accused hasbeen charged. It may be noted that noneof the judgments on the issue consideredthe plain and unambiguous language usedby the legislature in Section 2(wa) whiledefining a victim. As pointed out in ASWINIKUMAR GHOSE V/s. ARABINDABOSE(31) and RAKESH KUMAR PAUL28,

no word or phrase utilized by the legislaturecan be rendered redundant or given nomeaning and the provision has to beinterpreted and given effect to in its entirety.When the legislature, in its wisdom, definedvictim to mean a person who suffered anyloss or injury caused by an act or omissionfor which an accused person has beencharged, use of the word charged has tobe given full effect. Charge is defined rathervaguely under Section 2(b) of the Code toinclude any head of charge when the chargecontains more heads than one. However,framing of a charge in the context of thestatutory scheme of the Code cannot bebelittled, as an entire chapter, viz., ChapterXVII of the Code, is devoted to the charge.Section 211 thereunder defines contents ofa charge. Every charge under the Codeshall state the offence with which theaccused is charged and the law and thesection of law against which the offenceis said to have been committed is also tobe mentioned therein.

Section 321 of the Code makes it clearthat framing of a charge is crucial in matterswhere such a procedure is prescribed, asan accused is liable to be discharged inrespect of an offence where the prosecutionis withdrawn before a charge has beenframed against him whereas, if thewithdrawal from the prosecution takes placeafter the charge is framed or when, underthe Code no charge is required, he isacquitted in respect of such offence oroffences.

The use of the word charged in Section2(wa) of the Code therefore assumes great

31. AIR 1952 SC 369

50

274 LAW SUMMARY (Hyd.) 2017(3)significance and it is only in cases wherean accused is charged of an offence andhe is acquitted of such charge, the person,who suffered any loss or injury caused bysuch alleged act or omission of the accusedwhich formed part of the charge, would bea victim for the purpose of Section 2(wa)of the Code and for preferring an appealunder the proviso to Section 372 of theCode. Notably, cases under Section 138of the Act of 1881 are tried as summonscases. A summons case is defined underSection 2(w) of the Code to mean a caserelating to an offence not being a warrantcase, while Section 2(x) defines a warrantcase to mean a case relating to an offencepunishable with death, imprisonment for lifeor imprisonment for a term exceeding twoyears. As an offence under Section 138 ofthe Act of 1881 attracts imprisonment fora term which may extend upto two yearsonly, such a complaint case would be onlya summons case, wherein no chargerequires to be framed. Under Chapter XIXof the Code relating to trial of warrant cases,framing of a charge is required underSection 240, while no such procedure iscontemplated under Chapter XX of the Code,dealing with trial of summons cases. Asthe accused in a cheque-dishonour caseunder Section 138 of the Act of 1881 isnot charged, the complainant in such acase, though he may suffer loss and injuryby the omission of the accused to pay hisdues, cannot be brought within the ambitof a victim as defined in Section 2(wa) ofthe Code.

Ergo, a complainant in a cheque-dishonourcomplaint case under Section 138 of theAct of 1881 cannot be categorized a victim

in terms of the definition under Section2(wa) of the Code. Excluded from the ambitof Section 2(wa) of the Code, such acomplainant would not be entitled to availthe remedy of appeal under the proviso toSection 372 of the Code and must continueto avail the special remedy of appealprovided under Section 378(4) of the Codeafter obtaining special leave.

As regards the remedy of appeal availableto complainants against orders of acquittalin cases pertaining to any other offence,it may be noted that the right of appealgiven to victims under the proviso to Section372 of the Code is a general remedy providedto all such victims. This general remedycannot be extended to complainants incases arising out of private complaints, whoalready have the special remedy of appealprovided under Section 378(4) of the Code.Trite to state, the general provision cannotoverride the special provision unlessspecifically provided so or by necessaryimplication (See R.S.RAGHUNATH V/s.STATE OF KARNATAKA (32), WAVERLYJUTE MILLS CO. LTD V/s. RAYMON &CO. (INDIA) (P) LTD (33) and MOTIRAMGHELABHAI V/s. JAGAN NAGAR).(34)Further, by virtue of such extension,consequent to the interpretation sought tobe given to Section 2(wa) of the Code soas to include within its ambit complainantswho are already provided the remedy ofappeal under Section 378(4) of the Code,the three levels of remedies provided tosuch complainant are being converted intofour levels, though the law makers never

32. (1992) 1 SCC 33533. AIR 1963 SC 9034. (1985) 2 SCC 279

51

Smt.P. Vijaya Laxmi Vs. Smt.S.P.Sravana & Anr. 275expressed any intention to do so. Oncethe statute provided the general and specialremedies of appeal and prescribed the foratherefor, it is not open to the Courts tointerpret the statute otherwise and blur thelines between the two strata, so as tomultiply the appeal remedies and the foratherefor. The judgments of the SupremeCourt in DAMODAR S. PRABHU9 andSUBHASH CHAND10, decisions renderedafter insertion of Section 2(wa) and theproviso to Section 372 in the Code, alsosupport this view.

Therefore, even though there may becomplainants in cases arising out of privatecomplaint cases where the accused arecharged, unlike a complaint case arisingunder Section 138 of the Act of 1881, theystill cannot aspire to maintain an appealagainst an order of acquittal in such a caseunder the proviso to Section 372 of theCode. Given the special remedy alreadyprovided to them under Section 378(4) ofthe Code in the status of being acomplainant, the general remedy providedto victims under the proviso to Section 372of the Code cannot be extended to them.They would therefore have to continue toavail the remedy of appeal under Section378(4) of the Code by following the dueprocedure.

To sum up, we answer the first questionas to whether the complainant in a complaintcase for an offence punishable under Section138 of the Act of 1881 is a victim as definedunder Section 2(wa) of the Code, asamended by Act No.5 of 2009, in thenegative. Such a complainant is not a victimwithin the meaning of Section 2(wa) of the

Code and would stand excluded therefrom,by virtue of the fact that the accused insuch a case is not subjected to a charge.

In consequence, we also answer the secondquestion as to whether such a complainantwould be entitled to file an appeal underthe proviso to Section 372 of the Codebefore the Court to which an appeal liesagainst conviction, in the negative. As sucha complainant does not come within theambit of a victim under Section 2(wa) ofthe Code, his only remedy is to prefer anappeal under Section 378(4) of the Code,with special leave.

The third question is answered holding thata complainant in a complaint case relatingto an offence under Section 138 of the Actof 1881 would be required to file an appealagainst acquittal in such case only underSection 378(4) of the Code, after seekingspecial leave. In all other complaint casesrelating to offences, either bailable or non-bailable, even if the accused therein ischarged, the complainant therein would nothave the right of preferring an appeal underthe proviso to Section 372 of the Code andhe would have to continue to avail the specialremedy of appeal provided to him underSection 378(4) of the Code, duly seekingspecial leave.

The reference is answered accordingly. Inthe light of our findings on the referredquestions of law, the appeal filed under theproviso to Section 372 of the Code by thefirst respondent herein, the complainant ina complaint case under Section 138 of theAct of 1881, is not maintainable. Inconsequence, the criminal petition is

52

276 LAW SUMMARY (Hyd.) 2017(3)allowed quashing Criminal Appeal No.926of 2016 on the file of the learned MetropolitanSessions Judge, Hyderabad.

--X--

2017(3) L.S. 276


ANDHRA PRADESH


A.Rajasheker Reddy

Addepalli Bhaskar Rao ...PetitionerVs.

Karmanchi AnilKumar & Anr., ..Respondents

CIVIL PROCEDURE CODE,Secs.47 & 151 - Civil Revision Petitionis filed against the Order of Trial Courtwhich allowed the Application ofrespondent by setting aside the sale –Revision petitioner contends that Courtbelow has erroneously allowed theApplication as Sec.47 of CPC has noapplication since 1st respondent is nota party to the suit.

Held – 1st respondent is neithera decree holder nor auction purchaserin the auction conducted by Court below– No material on record or evidenceto the effect that any fraud or illegalityis played by petitioner while purchasingEP schedule property in the auction

conducted by Court below – Havingparticipated in the auction and havingkept quite at that time, 1st respondent/third party cannot question the auctionsale of EP schedule property by wayof an Application u/Sec.47 r/w 151 ofCPC – Impugned order of Court belowis set aside and Civil Revision isallowed.

Cases referred1.AIR 1967 Kerala 1452. (2000) 3 Supreme Court Cases 873. (2006) 4 Supreme Court Cases 4124. 2002 (6) ALD 8345.AIR 1964 SC 1300: (1964) 6 SCR 10016.(2003) 11 Supreme Court Cases 584

Sri N.Bhaskar Rao, Advocate for thePetitioner.Sri V.Satyanarayana Prasad, Advocate forthe Respondent.

O R D E R

This Civil Revision Petition is filed againstorder dated 23.08.2007 in EA No.47 of 2005in E.P.No.133 of 2003 in O.S.No.35 of 2002,wherein the Court below has allowed theapplication filed by the 1st respondent hereinunder Section 47 and Section 151 of CPCby setting aside the sale held on 29.11.2004.

2. Brief facts which are necessary fordisposal of this Civil Revision Petition arethat the 1st respondent filed E.A.No.47 of2005 claiming to be the tenant of the EPschedule property along with some otherproperty and doing business in the saidscheduled shop. Originally, the EP Schedule

CRP.No.4865/2007 Date: 19-9-2017

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Addepalli Bhaskar Rao Vs. Karmanchi Anil Kumar & Anr., 277property belongs to one Kurravari family.The father of the JDR-2nd respondent hereini.e.,Uppala Kasiviswanadham, ChanduluriSatyanarayana and Nagasuri Somaiahjointly purchased the EP Schedule propertyunder two sale deeds dated 09.02.978 and25.11.1978, as such, the JDR has got only1/3rd share in the EP schedule propertyand that the sale of entire EP scheduleproperty is not valid under law.

3. The Decree Holder-petitioner herein filedcounter denying the allegations in thepetition and contended that the sale heldis in accordance with the law and procedureand that the 1st respondent herein is notthe tenant or owner of the property. Thatthe 1st respondent also participated in theopen auction held by the Court below on29.11.2004 and the Court Amin has readover the contents of sale notification, butthe 1st respondent has not raised anyobjection, as such, he is estopped fromraising such pleas. That the provision oflaw quoted by the 1st respondent is notcorrect and that the sale of EP scheduleproperty in the open auction by the Courtis after following due process of law.

4. P.Ws.1 and 2 were examined on behalfof the 1st respondent and Exs.A1 to A6were got marked. On behalf of the petitionerherein, R.Ws.1 and 2 were examined andExs.B1 to B6 were got marked.

5. The Court below passed impugned orderin the Revision Petition holding that the 2ndrespondent-JDR has got saleable interestin respect of 1/3rd share of the EP scheduleproperty only but not for the entire EPschedule property and sale of entire

schedule property in respect of entire EPschedule property was set aside.

6. Learned counsel for the revision petitionersubmits that the Court below erroneouslyallowed the application filed by the 1strespondent under Section 47 read withSection 151 of CPC, as Section 47 of CPChas no application since the 1st respondentis not a party to the suit. He submits thatwhen once the 1st respondent participatedin the open auction conducted by the Court,and the Court Amin has read over thecontents of the sale notification, he isestopped from raising all such pleasregarding saleable interest of JDR-2ndrespondent. He submits that the applicationfiled by the 1st respondent before the Courtbelow is not maintainable. He submits thatthe saleable interest of the JDR can onlybe questioned by the auction purchaserunder Order 21 Rule 98 but nobody else.He submits that the Court below erroneouslyallowed the application holding that the JDRhas no saleable interest in respect of entireEP Schedule property. He submits that theapplication under Order 21 Rule 99 can bemaintained only on certain grounds andthat the 1st respondent has not made outany such grounds. In support of hiscontentions, he relied on the judgmentsreported in P.NARAYANA PILLAI V. KUNJUKUNJU GOPALAN(1) AND KADIYALARAMA RAO V. GUTALA KAHNA RAO(DEAD) BY LRS(2) .

7. On the other hand, learned counsel forthe 1st respondent submits that theapplication filed by the 1st respondent under

1.AIR 1967 Kerala 1452. (2000) 3 Supreme Court Cases 87

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278 LAW SUMMARY (Hyd.) 2017(3)Section 47 r/w Section 151 CPC can betreated as one under Order 21 Rule 97 ofCPC, since the case of the 1st respondentfalls under the said provision. He submitsthat the Court below after considering theoral and documentary evidence adduced oneither side, passed judgment and decree,as such, this Revision Petition does notlie before this Court and that the petitionerhas to prefer appeal under Order 21 Rule103 of CPC. He submits that the 1strespondent is the owner and tenant inrespect of 1/3rd share of the EP scheduleproperty, as such, the Court below rightlyset aside the sale of entire EP scheduleproperty.In support of his contentions, herelied on the judgments reported inS.RAJESWARI V. S.N.KULASEKARANAND D.KYATHAPPA(3) AND OTHERS V.K.L.SIDDARAMAPPA(4) .

8. Before considering the rival contentionsof both parties, it is relevant to extractSection 47 of CPC.

Section 47. Questions to bedetermined by the Court executingdecree: (1): All questions arisingbetween the parties to the suit inwhich the decree was passed, ortheir, representatives, and relating tothe execution, discharge orsatisfaction of the decree, shall bedetermined by the Court executingthe decree and not by a separatesuit.

2)xxxx

3) Where a question arises as towhether any person is or is not therepresentative of a party, suchquestion shall, for the purposes ofthis section, be determined by theCourt.

A reading of Section 47 of CPC goes toshow that all the questions arising betweenthe parties to the suit in which the decreewas passed, shall be determined by theCourt executing the decree and not by aseparate suit. Obviously the said provisionhas no application to the facts of the presentcase on hand, since the 1st respondentis not a party to the suit i.e., OS No.35of 2002. According to the learned counselfor the 1st respondent/claimant, when oncethe 1st respondent has remedy under Order21 Rule 97 of CPC, the question of invokingSection 151 of CPC does not arise. Evenan application under Order 21 Rule 91 ofCPC also cannot be invoked by the 1strespondent, since the 1st respondent hasfiled application on the ground that thejudgment debtor has no saleable interestin respect of the entire EP schedule propertyas only purchaser of the EP scheduleproperty is entitled to make such anapplication under Order 21 Rule 91 CPC,as held by the Honble Apex Court inKadiyala Rama Rao v. Gutala Kahna Rao(dead) by LRs. (supra), wherein it is heldas follows:

14. The contextual facts depict thatthe Revision Petition was dismissedon 11th April, 1980 that is long afterthe completion of sale which hasbeen totally ignored and the LearnedSingle Judge as a matter of fact has

3. (2006) 4 Supreme Court Cases 4124. 2002 (6) ALD 834

55

Addepalli Bhaskar Rao Vs. Karmanchi Anil Kumar & Anr., 279proceeded on a total misconceptionof facts. Be it noted that at no pointof time, any question was raised asregards the total purchase price andas such the attempt on the part ofthe respondent herein before thisCourt to denounce the sale on theground of inadequacy of price oughtnot to be permitted to be raised beforethis Court at this juncture. TheLearned Single Judge erroneouslyproceeded on certain misconceptionof facts as also of law by reason ofthe factum of challenge of sale beingon the ground of saleability. Order21 Rule 90 does not envisage theissue of saleability and the LearnedSingle Judge was in error inintroducing such a concept underOrder 21 Rule 90 of the Code. In anyevent as noticed above the issue ofsaleable interest can only be agitatedby the purchaser in terms of Order21 Rule 91 and not in any event bythe Judgment-debtor. The ground ofchallenge is specific in the provisionitself, namely, material irregularity orfraud and in the absence of anyevidence or even an allegation inregard thereto in the petition underOrder 21 Rule 90, question ofintroduction of the concept of nosaleable interest or anotheropportunity to the judgment-debtordoes not and cannot arise.

In this case, admittedly, the Court belowhas set aside the sale at the instance ofthe 1st respondent, who is a third partyto the suit. Moreover, he also unsuccessfullyparticipated in the auction conducted by

the Court below for purchase of entire EPSchedule property, as he was not the highestbidder in the said auction. In the cross-examination of 1st respondent as P.W.1before the Court below in the claim petition,he admitted that the sale notification wasread over to him by the Amin, but he neverobjected to the same either on the groundthat he is tenant or on the ground that heis having 1/3rd share in the EP scheduleproperty, as such, he is estopped fromraising such pleas in the present applicationonce again. Obviously, the 1st respondenthas no locus standi to question the sameon the ground that the 2nd respondent-Judgment Debtor has no saleable interestin respect of the entire EP scheduleproperty, but the petitioner herein, being theauction purchaser, only has got right toquestion the same and entitled to do sounder Order 21 Rule 91 of CPC. As such,the impugned order of the Court below isliable to be set aside.

9. The other contention raised by the learnedcounsel for the 1st respondent that theapplication should have been treated underOrder 21 Rule 97 of CPC. The said contentionis also without any substance becauseOrder 21 Rule 97 has no application asthe same deals with filing of application bythe Decree Holder or purchaser on theresistance or obstruction by third parties.

Order 21 Rule 97 reads as follows:

97. Resistance or obstruction topossession of immovable property:(1) Where the holder of a decree forthe possession of immovableproperty or the purchaser of any such

56

280 LAW SUMMARY (Hyd.) 2017(3)property sold in execution of a decreeis resisted or obstructed by anyperson in obtaining possession ofthe property, he may make anapplication to the Court complainingof such resistance or obstruction.

(2) Where any application is made undersub-rule (1), the Court shall proceed toadjudicate upon the application inaccordance with the provisions hereincontained.

The provisions of Order 21 rule 97 thuscategorically envisage that the holder of adecree for the possession of immovableproperty or the purchaser of such propertysold in execution of a decree is resistedor obstructed, he may make such anapplication to the Court complaining suchresistance or obstruction. But in this case,application is made by the 1st respondentbeing third party, as such, said contentioncannot be accepted in view of the fact thatthe 1st respondent is neither a decree holdernor auction purchaser in the auctionconducted by the Court below.

10. That apart, the 1st respondent cannotalso invoke Order 21 Rule 90 of CPC sincehe himself participated in the auctionconducted by the Court below for purchaseof entire EP schedule property and alsoadmitted in his crossexamination, asalready observed supra that the salenotification was read over to him by theCourt Amin, he never objected to the same,as such, the application cannot also betreated under Order 21 Rule 90 of CPC alsoas held by the Honble Supreme Court inKadiyala Rama Rao v. Gutala Kahna Rao

(dead) by LRs. (supra), as follows:7. On a plain reading of the provisionsthus three several factors emergeand which ought to be taken noteof in the matter of setting aside thesale of an immovable property, viz.,

(i) material irregularity and fraud inpublishing or conducting the sale;

(ii) the Court dealing with such anapplication is satisfied that theapplicant has sustained substantialinjury by reason of such an irregularityor fraud; and(iii) no application would beentertained upon a ground which theapplicant could have taken on orbefore the date of drawing up of theproclamation of sale.8. The third requirement as aboveneeds, however, special mention byreason of the factum of incorporationof the principles analogous to thedoctrine of constructive res judicataas envisaged under Section 11 of theCode. The legislative intent is clearand categorical in both the provisionsas above that in the event of anintentional relinquishment of a knownright, question of proceeding furtherwould not arise.

9. This observation finds favour in thedecision of this Court in DHIRENDRANATH GORAI V. SUDHIR CHANDRAGHOSH(5) . It is significant to note,however, that at the time of auctionJudgment-debtor 2 was present incourt and Judgment-debtor 2 was

5.AIR 1964 SC 1300: (1964) 6 SCR 1001

57

Addepalli Bhaskar Rao Vs. Karmanchi Anil Kumar & Anr., 281also a signatory to the applicationunder Order 21 rule 90.

It is needless to point out that there is nomaterial on record or evidence to the effectthat any fraud or illegality is played by thepetitioner while purchasing the EP scheduleproperty in the auction conducted by theCourt below. However, the 1st respondenthad filed an application by invoking theprovision under Section 47 of CPC readwith Section 151 of CPC.

Section 151 of CPC reads as follows:

151. Saving of inherent powers of Court:-Nothing in this Code shall be deemed tolimit or otherwise affect the inherent powerof the Court to make such orders as maybe necessary for the ends of justice, orto prevent abuse of the process of the Court.

Section 151 of CPC provides for inherentpowers on the court to make such ordersas may be necessary to meet the endsof justice or to prevent abuse of the processof the Court, but not as a matter of course.Obviously, the 1st respondent is neitherparty to the suit nor to the EP and Section151 CPC can only be invoked to meet theends of justice or to prevent the abuse ofprocess of Court. But in the present case,it is not the case of the 1st respondentthat there is abuse of process of Court andthat there is no finding of the Court belowto that effect.

11. While dealing with the question whetheran application filed by decree holder underSection 151 CPC for removing theobstruction to delivery of possession of land

claimed by decree-holder held to be treatedas an application under Order 21 Rule 97and the Court has followed the procedurelaid down by Order 21 Rule 98 to 100, theHonble Supreme Court in S.Rajeswari v.S.N.Kulasekaran and others (supra) heldthat only appeal lies against the orderpassed under Order 21 Rule 97 treating theorder passed in the application underSection 151 CPC as one under Order 21rule 97 since factual aspects raised in theapplication under Section 151 of CPCattracted the provisions of Order 21 Rule

97. The Court below in that case alsofollowed the procedure under Order 21 Rule97 and held that the said order is appealableunder Order 21 Rule 103 of CPC. But thefacts in the present case on hand areotherwise. Having participated in the auctionand having kept quite at that time, the 1strespondent/third party cannot question theauction sale of EP schedule property byway of an application under Section 47 r/w Section 151 CPC. Moreover, when Section47 of CPC has no application and it isdeemed that the Court passed orders underSection 151 CPC, which is not appealable,the Court below by of allowing theapplication, has terminated the entire EP,which is erroneous. The order setting asidethe sale of EP schedule property will havethe effect of disposal of EP itself and nothingsurvives for adjudication in the EP, as such,contention of the learned counsel for the1st respondent that the impugned order isinterlocutory in nature, and that revision isnot maintainable also cannot be acceptedand the judgments cited by the learnedcounsel for the 1st respondent inS.Rajeswari v. S.N.Kulasekaran and others

58

282 LAW SUMMARY (Hyd.) 2017(3)(supra) & D.Kyathappa and others v.K.L.Siddaramappa have no application tothe facts of the present case on hand.Moreover, judgments of Courts are not tobe construed as statues as held by theHonble Supreme Court in the judgmentreported in ASHWANI KUMAR SINGH V.U.P.PUBLIC SERVICE COMMISSION ANDOTHERS(6) , wherein the Honble SupremeCourt held as follows:

10. Courts should not place relianceon decisions without discussing asto how the factual situation fits inwith the fact situation of the decisionon which reliance is placed.Observations of Courts are not to beread as Euclid's theorems nor asprovisions of the statute. Theseobservations must be read in thecontext in which they appear.Judgments of Courts are not to beconstrued as statutes. To interpretwords, phrases and provisions ofstatute, it may become necessaryfor Judges to embark into lengthydiscussions, but the discussion ismeant to explain and not to define.Judges interpret statutes, they donot interpret judgments. They interpretwords of statutes; their words arenot to be interpreted as statutes. InLondon Graving Dock Co. Ltd. v.Horton, (1951) AC 737 at p. 761,Lord Mac Dermot observed:

"The matter cannot, of course, besettled merely by treating theipsissima vertra of Willes, J, asthough they were part of an Act of

parliament and applying the rules ofinterpretation appropriate thereto.This is not to detract from the greatweight to be given to the languageactually used by that mostdistinguished Judge."

11. In Home Officer V. Dorset YachtCo., [1970] 2 All ER 294 Lord Reidsaid, "Lord Atkin's speech.........isnot to be treated as if it was a statutedefinition. It will require qualificationin new circumstances." Megarry, Jin Shepherd Homes Ltd. v. Sandham,(No. 2) (1971) 1 WER 1062 observed:"One must not, of course, construeeven a reserved judgment of Russell,L.J. as if it were an Act of Parliament."In Herrington v. British RailwaysBoard, (1972) 2 Wl R 537 Lord Morrissaid :

"There is always peril in treating thewords of a speech or judgment asthough they are words in legislativeenactment, and it is to beremembered that judicial utterancesmade in the setting of the facts ofa particular case."

12. Circumstantial flexibility, oneadditional or different fact may makea world of difference betweenconclusions in two cases. Disposalof cases by blindly placing relianceon a decision is not proper.

13. The following words ofHidayatullah, J. in the matter ofapplying precedents have becomelocus classicus: (Abdul kayoom v.6.(2003) 11 Supreme Court Cases 584

59

Madasu Rambabu Vs. The State of A.P., 283

CIT (AIR 1962 SC 680), AIR p.688,para 19 "19.Each case depends onits own facts and a close similaritybetween one case and another is notenough because even a singlesignificant detail may alter the entireaspect. In deciding such cases, oneshould avoid the temptation to decidecases (as said by Cardozo) bymatching the colour of one caseagainst the colour of another. Todecide, therefore, on which side ofthe line a case falls, the broadresemblance to another case is notat all decisive."

"Precedent would be followed only so faras it marks the path of justice, but youmust cut the dead wood and trim off theside branches, else you will find yourselflost in thickets and branches. My plea isto keep the path to justice clear ofobstructions which could impede it."

For the foregoing reasons, the impugnedorder of the Court below is set aside.

Accordingly, the Civil Revision Petition isallowed. There shall be no order as to costs.Miscellaneous petitions, if any, pending inthis Civil Revision Petition shall standdisposed of.

--X--

2017(3) L.S. 283 (D.B.)


ANDHRA PRADESH


Sanjay Kumar &The Hon’ble Mr.Justice

T.Amarnath Goud

Madasu Rambabu ..AppellantVs.

The State of A.P., ..Respondent

INDIAN PENAL CODE, Secs.302,304-B & 498-A - CRIMINAL PROCEDURECODE, Sec.374(2) –Criminal Appeal -Husband/Accused is found guilty ofmurder of his wife and demandingadditional dowry.

Held – A charge u/Sec. 304-B,IPC ought to have been framed againstthe accused – Therefore, in the Interestof Justice, the accused be charged andtried u/Sec.304-B IPC at this stage – Itmay be noted that u/Sec.304-B, IPC itis not necessary to establish a homicidaldeath for proving the offence of dowrydeath – It is sufficient if the death ofthe woman is otherwise than under thenormal circumstances – As the accusedwas never charged with an offenceu/Sec. 304-B, IPC and did not have theopportunity to rebut the same, it wouldbe appropriate if Sessions Court frame

Crl.A.No.315/11 Date:26-10-2017

60


the charge at this stage and give himan opportunity to meet it – SessionsCourt shall permit prosecution to adduceadditional evidence, oral anddocumentary and appellant shall bepermitted to recall any of the witnessesalready examined for further cross-examination – Criminal Appeal allowedpartly.

Cases Referred:1. (2013) 16 SCC 3532. (2014) 15 SCC 1633. (2000) 5 SCC 207 = 2000 SCC (CrI) 9354. (2013) 4 SCC 1315. (2001) 2 SCC 577

Mr.P.Prabhakar Reddy, Advocate for theAppellant.Public Prosecutor,Telangana, Advocate forthe Respondent.

J U D G M E N T(per the Hon’ble Mr.Justice

Sanjay Kumar)

Madasu Nirmala Kumari was found deadin the early hours of 19.11.2008 in the sumpat her house at Cheruvu Bazar, Khammam.Her husband, Madasu Rambabu, wascharged with her murder, punishable underSection 302 IPC, in Sessions Case No.241of 2010 on the file of the learned PrincipalSessions Judge, Khammam. He was alsocharged under Section 498-A IPC ofcommitting the offence of demandingadditional dowry of Rs.50,000/- and amotorcycle. By judgment dated 21.02.2011,the Sessions Court held him guilty on bothcharges and sentenced him to lifeimprisonment apart from paying a fine of

Rs.100/-, in default of which he was tosuffer rigorous imprisonment for one month,for his conviction under Section 302 IPCand to rigorous imprisonment for one yearapart from paying a fine of Rs.1,000/-, indefault of which he was to suffer rigorousimprisonment for three months, for hisconviction under Section 498-A IPC.Aggrieved thereby, Madasu Rambabu, theaccused, is in appeal under Section 374(2)CrPC.

The history of the case, in brief, is as under:

The Sub-Inspector of Police, Khammam ITown (P.W.12), received telephonicinformation at about 8.30 AM on 19.11.2008and visited the house of P.W.1, the fatherof the deceased, where he received Ex.P1report. Therein, P.W.1 spoke of the marriageof the deceased, his second daughter, withthe accused on 10.09.2004 and herharassment thereafter by the accused onsuspicion and for a motorcycle and cash.He stated that he had given Rs.1,00,000/- in cash and three tulas of gold before themarriage and he again gave Rs.50,000/- forpurchase of a motorcycle by the accused.He adverted to the case filed by him underthe Protection of Women from DomesticViolence Act, 2005, which was thereaftercompromised. He stated that sinceFebruary, 2008, his deceased daughter andthe accused were living in the two roomson the rear side of his house along withtheir child. On 18.11.2008 at about 9.30PM, his deceased daughter and the accusedslept in their portion and at about 6.30 AM,when his wife was cleaning the housepremises, she found the body of thedeceased in the water tank. He said that

61

Madasu Rambabu Vs. The State of A.P., 285they found their grand- daughter crying inthe room and the accused was not to beseen anywhere. His motorcycle was alsomissing. P.W.1 stated that the accusedhad left his wet clothes, changed his dressand had run away. He prayed thatnecessary action be taken.

Thereupon, P.W.12 registered Crime No.248of 2008 under Section 302 IPC. Ex.P13 isthe FIR. He again visited the scene of theoffence where he filled in the Crime DetailsForm and drew up a rough sketch in thepresence of mediators. Ex.P4 is the CrimeDetails Form along with the rough sketch.He seized the shirt and pant (M.Os.1 and2) found near the water sump. He gotphotographed the body of the deceased.Ex.P2 is the set of photographs withnegatives. He sent for the Tahsildar,Khammam, and upon arrival, the Tahsildarconducted an inquest over the dead body.The body was then sent to the GovernmentHospital, Khammam, for post-mortemexamination. P.W.12 drew a water samplefrom the sump for diatom test. He alsorecorded the statements of P.Ws.1 to 5 onthe same day. He then handed over thecase to the In-charge Station House Officer,Women Police Station, for furtherinvestigation. The DSP (Trainee), Khammam(P.W.13), then took up investigation. On04.12.2008, she examined P.W.6 andP.W.10. She collected Ex.P12 medicalcertificate of the accused from P.W.10. On16.12.2008, the accused surrendered beforeher. He was arrested and remanded tocustody. The investigation was thencontinued by the Circle Inspector of Police,Khammam Town (P.W.14). He obtained thepost-mortem examination report (Ex.P7),

F.S.L. reports (Exs.P8 and 11), a reportfrom Siddhartha Medical College (Ex.P9)and the final opinion on the post-mortemexamination (Ex.P10). After completion ofthe investigation, he laid the charge sheet.The charges framed by the Sessions Courtagainst the accused read as under:

FIRSTLY:

That you of the accused on 18th day ofNovember, 2008 at about 12.00 mid nightat your house situated at Cheruvu Bazar,Khammam, you of the accused forcibly putthe neck of your wife by name MadasuNirmala Kumari in the water till her deathand you thereby committed an offencepunishable U/s. 302 of the Indian PenalCode and within my cognizance.

SECONDLY :

That you of the accused prior to the deathof your wife ie. deceased Nirmala Kumariharassed her by demanding additional dowryof Rs.50,000/- and a motor cycle and youthereby committed an offence punishableU/s. 498-A of the Indian Penal Code andwithin my cognizance.

The accused denied the charges andclaimed to be tried. During the trial, theprosecution examined 14 witnesses andmarked in evidence 14 exhibits. Exs.X1and X2 were marked by the Court. Theaccused chose not to lead any evidence.Case properties were shown as M.Os.1and 2. Considering the material on record,the Sessions Court held that there wereno major discrepancies in the prosecutionscase and convicted the accused of both

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the offences and sentenced him as statedsupra. Hence, this appeal.

At the outset, it may be noticed that themarriage of the deceased with the accusedwas solemnized on 10.09.2004 and shedied on 19.11.2008. As she died within 7years of her marriage, a charge underSection 304-B IPC ought to have beenframed in relation to her dowry death, asthere was a specific charge against theaccused under Section 498-A IPC in relationto subjecting her to cruelty in connectionwith his unlawful demands for a motorcycleand cash. Unfortunately, the Sessions Courtmerely framed a charge under Section 302IPC and, at that, wrongly showing it to bea case of drowning though the post-mortemexamination certified that the deceased haddied of asphyxia due to strangulation.

Perusal of the evidence reflects that therewere no eye-witnesses to the incidentwhereby the deceased came to meet withher death. Neither P.W.1 nor P.W.2, theparents of the deceased, specifically statedthat they saw the accused on 18.11.2008during the night time. P.W.1 stated to thiseffect in Ex.P1 but in his deposition beforethe Court, he stated that on 18.11.2008,as usual, his deceased daughter and herdaughter went to sleep in their portion.P.W.2, the mother of the deceased, initiallystated that on 18.11.2008, as usual, theaccused and the deceased went to sleepin their room but in her cross-examination,she said that only the deceased and shehad taken their food at about 8.00 PM onthat night and thereafter, the deceased andher daughter went to their portion and slept.She did not say anything about the accused.Significantly, neither P.W.1 nor P.W.2

mentioned anything about the presence ofthe motorcycle of the accused at that timeeither. The further case of the prosecutionwas that the accused fled to the house ofhis father (P.W.6) on his motorcycle andtried to commit suicide there. Exs.X1 andX2 were marked in proof of this.

The Civil Assistant Surgeon, GovernmentHead Quarters Hospital, Khammam, whoconducted the post-mortem examination ofthe body of the deceased, was examinedas P.W.9. He found the following ante-mortem injuries on her body:

1. Laceration on right wrist x x inch.2. Abrasion on back of elbow on right handx inch.3. Abrasion on back of elbow left hand 1x inch.4. Abrasion on left knee 1 x inch.He stated that no internal injuries wereseen. He certified that the cause of deathwas asphyxia due to strangulation. Heconfirmed that he did not notice any signsof drowning. He stated that he observeda faded mark of a ligature on the neck andsent the skin in the front of the neck forhisto-pathological examination along withthe sternum for diatom test and the viscerafor chemical analysis. He identified Ex.P7as his post-mortem examination report,Ex.P8 as the RFSL report dated 27.12.2008,Ex.P9 as the pathology report, Ex.P10 ashis final opinion and Ex.P11 as the reportof FSL, Hyderabad. Ex.P8 RFSL reportconfirmed that diatoms were not detectedeither on the sternum or in the water sampledrawn from the sump. Ex.P11 FSL reportconfirmed that examination of the visceraof the deceased indicated that she was notpoisoned. P.W.9 fixed the appropriate time


63

of death between 0 24 hours prior tocommencement of the post- mortem. In hiscross-examination, P.W.9 said that he didnot find any external injury on the neck ofthe deceased. He explained that as thebody was removed from water, he could notclearly see any marks on the neck andtherefore, he sent the skin to the Departmentof Pathology, Siddhartha Medical College,Vijayawada. The body was normal but wasslightly wet. He admitted that no injurieswere noted in Column No.5 of Ex.P7 post-mortem examination report. He furtheradmitted that he had not recorded in thesaid report that he suspected ligature markson the neck. He added that on seeing,there was apparently no ligature markaround the neck of the deceased. He saidthat he gave his opinion on the basis ofthe reports from RFSL, Warangal; FSL,Hyderabad; and from Vijayawada. He furtherstated that the injuries on the body werenot sufficient to cause death. In his furthercross-examination, P.W.9 stated that hedid not notice any signs of drowning andthere were also no signs of death bystrangulation. He said that he did not findany compression of the wind pipe and thehyoid bone was not fractured. He admittedthat his opinion as to the cause of deathwas solely based upon the report given bythe forensic laboratory after examining theskin from the neck. He said that he didnot take the entire skin around the neckand that he did not find any ligature marksaround the neck. He said that he did notknow whether the report of the FSL wasobtained by the police falsely. He statedthat if death is due to strangulation, invariablythere should be compression of the windpipe.

Ex.P9 report from the Department ofPathology, Siddhartha Medical College,Vijayawada, was furnished in relation toexamination of the skin from the front portionof the neck of the deceased (two pieces),which were sent for histo-pathologicalexamination. The report certified that onepiece showed a ligature mark along itslength which is 0.2 cms each width, andthe cut section showed congestion. Theskin covered specimen received showedvascular congestion and hemorrhages. Thepicture was stated to be suggestive of ante-mortem nature of the lesion. However, theevidence of P.W.9 is to the effect that heobserved a faded mark of a ligature on theneck and sent the skin in the front of theneck for examination. Unfortunately, Ex.P9pathology report does not indicate the ageof the ligature mark on the skin samplesent for examination. Given the testimonyof P.W.9 to the effect that the ligature markwas faded, it cannot be ruled out that thisinjury was not of recent origin.

The evidence of P.W.9 and Exs.P8 and P.11lab reports put it beyond the realm of doubtthat the deceased did not die due to eitherpoisoning or drowning. P.W.9 also assertedthat he found no signs of death being causedby strangulation. He stated that there wasno compression of the wind pipe and thehyoid bone was not fractured. He confirmedthat if death is due to strangulation, invariablythere would be compression of the windpipe. He explained that the only reason thathe gave the report to the effect that thecause of death was asphyxia due tostrangulation was because of the opinionexpressed by the forensic laboratory uponexamining the skin sample from the neckof the deceased. However, as already


64

pointed out, P.W.9 had confirmed that theligature mark found on the neck of thedeceased was faded. The pathologydepartment, unfortunately, did not ascertainthe age of the said ligature mark. Therefore,the possibility that this ligature was not ofrecent origin cannot be ruled out. The benefitof doubt in this regard would invariably goto the accused. In effect, there is noconclusive proof or evidence of the deathof the deceased being homicidal. In theabsence of clear proof as to homicide havingbeen committed, the question of bringingthe accused to book for it does not arise.The charge against the accused underSection 302 IPC is therefore not made outas there is no clear evidence of the deathof the deceased being a homicidal death.

That having been said, this Court isconscious of the fact that accused wasalso charged under Section 498-A IPC. Inconsequence, as the deceased died withinseven years of her marriage and there wasa charge under Section 498-A IPC, Section304-B IPC would stand attracted. It maybe noted that under Section 304B IPC, itis not necessary to establish a homicidaldeath for proving the offence of dowry death.It is sufficient if the death of the womanis otherwise than under normalcircumstances. Any accidental deathoccurring otherwise than under normalcircumstances would also come within itsambit. In SURESH KUMAR V/s. STATEOF HARYANA (1), the Supreme Courtpointed out that any kind of death of awoman, whether homicidal or suicidal oraccidental, would attract Section 304B IPC,if the other ingredients therein were provedand once such ingredients stand proved,

the onus would shift upon the accused whomust establish by cogent evidence thateven such accidental death occurred undernormal circumstances.

As there was also a charge against theaccused under Section 498-A IPC, aconcomitant presumption would normallyarise under Section 113B of the IndianEvidence Act, 1872 (for brevity, the Act of1872), if the said charge is proved, that thedeath of the deceased was a dowry deathcaused by his cruelty and harassment inconnection with his demands for dowry.However, as already noted supra, noseparate charge was framed under Section304-B IPC. It is therefore in the interestof justice that the accused be charged andtried under Section 304B IPC at least atthis stage.

In this regard, it would be apposite to referto the observations of the Supreme Courtin VIJAY PAL SINGH V/s. STATE OFUTTARAKHAND(2) that generally, in caseswhere a married woman dies within sevenyears of marriage, no inquiry is usuallyconducted to see whether there is evidenceas to whether the offence falls under Section302 IPC. The Supreme Court cautionedthat where there is any evidence, direct orcircumstantial, to show that the offencemay fall under Section 302 IPC, the trialCourt should frame a charge under Section302 IPC even if the police has not expressedany opinion in that regard in the final reportand Section 304-B IPC can be put as analternate charge. It was further observedthat in the course of the trial, if the Courtfinds that there is no evidence and proof,beyond reasonable doubt, is not available

1. (2013) 16 SCC 353 2. (2014) 15 SCC 163


65

to establish that the death is a homicide,in such a situation, if the ingredients underSection 304-B IPC are available, the Courtshould proceed under the said provision.

In KANS RAJ V/s. STATE OF PUNJAB(3), the ingredients of Section 304-B IPC wererephrased in the following words:

(a) the death of a woman was causedby burns or bodily injury or hadoccurred otherwise than under normalcircumstances;(b) such death should have occurredwithin seven years of her marriage;

(c) the deceased was subjected tocruelty or harassment by her husbandor by any relative of her husband;

(d) such cruelty or harassment shouldbe for or in connection with thedemand of dowry; and

(e) to such cruelty or harassmentthe deceased should have beensubjected soon before her death.

The expression otherwise than under normalcircumstances was explained to meandeath not in the usual course but apparentlyunder suspicious circumstances, if notcaused by burns or bodily injury.More recently, in BAKSHISH RAM V/s.STATE OF PUNJAB(4) , the ingredients ofSection 304-B IPC were abbreviated in thesewords:

(a) that a married woman had diedotherwise than under normal

circumstances;

(b) such death was within seven yearsof her marriage; and

(c) the prosecution has establishedthat there was cruelty andharassment in connection withdemand for dowry soon before herdeath.

Significantly, in SHAMNSAHEB M.MULTTANI V/s. STATE OF KARNATAKA(5), a Bench of three Judges of the SupremeCourt dealt with the issue as to whetheran accused charged under Section 302 IPCcould be convicted under Section 304B IPCif the charge under Section 302 IPC is notestablished, without affording him anopportunity to enter his defence and disprovethe presumption raised thereunder, read withSection 113B of the Act of 1872. TheSupreme Court observed that where theaccused is called upon only to defendagainst a charge under Section 302 IPC,the burden of proof never shifts onto himand it remains with the prosecution, whichhas to prove the charge beyond allreasonable doubt. No compulsorypresumption would go to the assistance ofthe prosecution in such a situation. If thatbe so, when an accused has no notice ofthe charge under Section 304B IPC, as hewas only defending against a charge underSection 302 IPC, it would lead to gravemiscarriage of justice when he isalternatively convicted under Section 304BIPC, because he is deprived of theopportunity to disprove the burden cast onhim by law. The Supreme Court therefore

3. (2000) 5 SCC 207 = 2000 SCC (CrI)935

4. (2013) 4 SCC 1315. (2001) 2 SCC 577


66

held that if an accused is convicted underSection 304B IPC without an opportunitybeing granted to him to enter on his defencein respect of the said charge and anopportunity is not afforded to him todischarge his burden, the conviction underSection 304-B IPC cannot be sustained.

In SURESH KUMAR1, the Supreme Courtfollowing the decision in SHAMNSAHEBM. MULTTANI5, held that the initial burdenof proving the death of a woman withinseven years of her marriage incircumstances that are not normal is onthe prosecution; such death should be inconnection with or for a demand of dowrywhich is accompanied by such cruelty orharassment that eventually leads to thewomans death in circumstances that arenot normal and after the initial burden ofa deemed dowry death is discharged bythe prosecution, a reverse onus is put onthe accused to prove his innocence byshowing, inter alia, that the death wasaccidental.

In that view of the matter, as the appellant/accused was never charged with an offenceunder Section 304B IPC and did not havean opportunity to rebut the statutorypresumption that would weigh against himif the death of his wife is treated as a dowrydeath, it would be appropriate that theSessions Court frame the charge at leastat this stage and give him an opportunityto meet it.

As regards the conviction of the accusedunder Section 498-A IPC, we find that thereis no discussion whatsoever by theSessions Court on this aspect in supportof its final finding in the judgment under

appeal. Further, as a finding on this aspectis crucial and would impact the charge tobe framed under Section 304-B IPC, weare of the opinion that this issue also needsto be adjudicated afresh.

The judgment under appeal in SessionsCase No.241 of 2010 on the file of thelearned Principal Sessions Judge,Khammam, is accordingly set aside andthe matter is remitted to the file of thelearned Principal Sessions Judge,Khammam, with a direction to frame analternate charge under Section 304B IPCand adjudicate upon the charges underSection 304-B IPC and Section 498-A IPC.The Sessions Court shall permit theprosecution to adduce additional evidence,oral and documentary, to prove that thedeath of the deceased was a dowry death.The appellant/accused shall then bepermitted to recall any of the witnessesalready examined for further cross-examination, if he so chooses, apart fromletting in such evidence as he may wishto adduce independently. In the light of thefact that this is the second round, theSessions Court shall endeavour to disposeof the matter expeditiously and preferablywithin six months from the date of receiptof a copy of this order. As the appellant/accused has already been enlarged on bailpending disposal of this appeal, he shallremain at liberty until the disposal of thecase afresh by the Sessions Court. Bailbonds furnished by him shall not bedischarged until the disposal of the caseupon remand, pursuant to this order.

The appeal is allowed to the extent indicatedabove.

--X--


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2017(3) L.S. (Madras) 77

IN THE HIGH COURT OF MADRAS

Present:The Hon’ble Mr. Justice

M.Sathyanarayan &The Hon’ble Mr. Justice

N.Seshasayee

Mathesh ..AppellantVs.

State ..Respondent

INDIAN PENAL CODE, Sec. 201and 302 - Appellant/Accused haschallenged the legality of the convictionand sentence passed by the Trial Courtagainst him - Case of the prosecutionrests upon circumstantial evidence.

Held – If the case of theprosecution rests upon circumstantialevidence, it is bounden duty ofprosecution to link the chain ofcircumstances unerringly to connect theaccused for the commission of offence,but they have miserably failed to doso – Circumstance of last seen togetherdoes not by itself necessarily lead toinference that it was accused whocommitted the crime but there must besomething more to connect the accusedwith the crime and to point out guiltof accused and none else - There arevery many gaps and holes in the caseprojected by the prosecution and thechain of circumstances to link theaccused with the commission of offence

is not at all complete and therefore,benefit of doubt shall endure in favourof the appellant - Criminal appeal isallowed – Conviction recorded andsentence imposed on appellant is setaside.

Mr.C.R.Malarvannan, for M/s.V. Rajamohan Advocate for Appellant.Mr.R.Ravichandran, Government Advocate(Crl.Side), Advocate for Respondent.


M.Sathyanarayan)

The appellant was arrayed asaccused in S.C.No.137 of 2015 on the fileof the Court of Sessions (Mahila), FastTract Court, Dharmapuri District and hestood charged and tried for the commissionof offences under Sections 302 I.P.C and201 r/w. 302 I.P.C. The Trial Court, videimpugned judgment dated 06.03.2017, foundhim not guilty for the offence under Section201 r/w.302 I.P.C. and acquitted him for thesaid offence and however convicted him forthe offence under Section 302 I.P.C. andsentenced him to undergo imprisonment forlife with a fine of Rs.2,000/- in default toundergo 2 months rigorous imprisonment.The Trial Court has also granted set offunder Section 428 Cr.P.C. The appellant/accused, challenging the legality of theconviction and sentence passed by the TrialCourt, has filed this appeal.

2. The case of the prosecution, brieflynarrated and necessary for the disposal of

Crl.A.No.232/17 Date:22-11-2017

Mathesh Vs. State 77

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this appeal, are as follows:

2.1. The deceased, namely Neela, is themother of PW1. According to theprosecution, the appellant/accused and thejuvenile accused, namely Mani as well asthe deceased belong to the same place.At about 10.00 p.m. on 11.08.2013, whenthe deceased/Neela was in his house, theappellant/accused as well as the juvenileaccused Mani started consuming liquor andwhen it was questioned by the deceased,she was abused. PW1 is the daughter ofthe deceased and she informed to herneighbour PW2-Surya about the saidincident and PW1 asked her morther notto indulge in unwanted things and madeher to sit in the house of PW2 and shewent back to her home at 10.30 p.m. on11.08.2013. The deceased/Neela was havingconversation with PW2 for sometime andthereafter, she went back to his house on12.08.2013 at about 6.00 a.m. When PW2proceeded to his lands, she passed throughthe house of the mother of PW1 and foundblood stains near the entrance of the houseand also found that the doors were foundopen and developing suspision, she wentinside the house and found that Neela wasdead and she informed the same to PW1-daughter of the deceased.

2.2. PW1 developed suspension that onaccount of the wordy altercation that hadhappened between the appellant/accusedand the juvenile accused and her mother,she would have been done to death andwent to Karimangalam Police Station andlodged a written complaint to PW13- Sub-

Inspector of Police, Kariamangalam PoliceStation. PW13, on receipt of the writtencompliant, registered a case in Crime No.279of 2013 at about 8.a.m. on 12.08.2013 forthe commission of offence under Section302 I.P.C. The printed F.I.R. was markedas Ex.P7. PW13 despatched the originalcomplaint as well as F.I.R. to theJurisdictional Magistrate.

2.3. PW19 was the Station House Officerof Mathikanpalayam Police Station and alsoIn-charge of Karimangalam Police Stationand on receipt of the F.I.R., took up theinvestigation and went to the scene ofoccurrence and in the present of PW6 andPalani, inspected the said area and preparedthe Observation Mahazar and Rough Sketch,marked as Exs.P2 and P13 respectively.PW19 examined PWs.1, 8, 9, 10, 11, 2,3, 4, 5, 6 and 12 and recorded theirstatements under Section 161(3) Cr.P.C.,and conducted inquest on the body of thedeceased in the presence ofPanchayatdhars and the Inquest Report wasmarked as Ex.P14. PW19, through PW15,made a requestion for conductingpostmortem and also prepared a report,which was marked as Ex.P15.

2.4. PW16 was the Assistant Surgeonattached to Dharmapuri, Medical CollegeHospital and he received the body of thedeceased along with a requisition at about2.00 p.m. on 12.08.2013 and seen the bodyat 2.15 p.m. and noted the presence ofRigor Mortis in all four limbs andcommenced the postmortem at about 2.15p.m. on 12.08.2013 and noted the following

78 LAW SUMMARY (Madras) 2017(3)

69

features:A body of a female aged about 75 years,lying on its back, arms by the side R/L.

External Injuries: Fracture all skull exposingbrain matter 2) 3 x 1 cm abrasion overcheek. 3) Abrasion over left cheek. 4)Laceration 3 x 1 over right side forehead.

Thorax & Abdomen: Hyoid -intact, sternum-intact, Ribs-normal, Lungs-normal, C/s-pale.

Thoracic cavity: Heart normal in size, EmptyChambers, stomach 400 gm partiallydigested food with no specific odom, palemucosa Liver-normal in size. C/s- Pale,Spleen-normal, C/s-Pale. Kidney-normal insize, Bladder-empty, Uterus (n.c.) C/s.Empty, External genitalia normal.

Head : 15 x 12 cm cavity deep irregularlaceration involving right and left frontoparietal region exposing multiple fracturedpieces of underlying right fronto parietalvault. Irregular lacerated duramter (?),brainstem and base of skull major part oflacerated. Brain matter was oozed out.Oozed brain matter was collected inseparate plastic bag. PW16, aftercompletion of postmortem, opined that thedeath would have occurred 12-24 hours priorto autopsy and issued the PostmortemCertificate, marked as Ex.P9.

2.5. PW19 continued with the investigationand searched for the accused and oninformation, effected the arrest of theaccused/appellant as well as juvenileaccused near the area going around the

hill in the presence of PW12/VAO and hismenial. The appellant/accused voluntarilycame forward to give confession statementand as per the admissible portion of theconfession statement marked as Ex.P16,M.O.1-Stone and M.O.4- Blood Stained Shirtworn by the accused were recovered underMahazars Ex.P3 and Ex.P5 respectively.PW19 sent the material objects for chemicaland biologial analysis through requisitionletter marked as Ex.P17. PW19 alsorecovered M.O.2- Blood Stained Earth andM.O.3- Sample Earth under Mahazar Ex.P4and after bring the accused to the policestation, sent him to the JurisdictionalMagistrate Court for remand and custody.PW19 received the Chemical AnalysisReports, marked as Exs.P10 to P12 andthereafter handed over the case papers tohis successor, namely Mr.Thangadurai/Inspector of Police and based upon thematerials collected during investigation, hasaltered the Section from 302 I.P.C toSections 302 and 201 I.P.C. The AlterationReport was marked as Ex.P18.

2.6. PW18, the successor of PW19,continued with the investigation and aftercompleting the investigation, filed the FinalReport/Charge Sheet on the file of the Courtof Judicial Magistrate, Palacode, chargesheeting the appellant/accused for theoffences under Sections 302 and 201 r/w.302 I.P.C., which was taken on file inP.R.C.No.31/2015. The Committal Courtsummoned the accused and on hisappearance, furnished copies of thedocuments under Section 207 CrPC. TheCommittal Court, having found that the case


70

is exclusively triable by the Court ofSessions, committed the same underSection 209 CrPC to the Principal SessionsCourt, Dharmapuri and the said Court madeover the case to the Sessions Judge, MahilaFast Tract Court, Dharmapuri in S.C.No.137of 2015.

2.7. The Trial Court had issued summonsto the accused and on his appearance,framed charges for the offences underSections 302 I.P.C and 201 r/w. 302 I.P.C.The appellant/accused pleaded guilty to thecharges framed against him.

2.8. The prosecution, in order to sustaintheir case, examined PWs.1 to 19, markedExs.P1 to P18 and also marked M.Os.1to 4. The accused/appellant was questionedunder Section 313(1)(b) CrPC with regardto incriminating circumstances made outagainst him in the evidence rendered bythe prosecution and he denied it as false.On behalf of the accused, no witness wasexamined and no document was marked.

2.9. The Trial Court, on consideration andappreciation of oral and documentaryevidence and other materials, convicted andsentenced the accused for the offence underSection 302 I.P.C. and however acquittedhim for the offence under Section 201 r/w. 302 I.P.C. and the State did not preferany appeal against the acquittal of theappellant/accused for the offence underSection 201 r/w. 302 I.P.C. The appellant/accused, challenging the legality of theconviction and sentence passed by the TrialCourt, has filed this appeal.

3. Mr.C.R.Malarvannan, learned counselappearing for the appellant/accused madethe following submissions:

(a) The case of the prosecution rests uponcircumstancial evidence and the followingcircumstances are projected by theprosecution:

(i) Motive

(ii) Last Seen Theory spoken to by PWs.1to 4.

(b) As per the testimony of PW1, she didnot write the complaint and she was noteven aware of the contents of the F.I.R andadmittedly, F.I.R came to be registered onthe basis of Ex.P1/complaint given by PW1and since the writing of the complaint itselfis doubtful and the evidence of theprosecution case based upon such acomplaint got weekened, as it rests uponweaker foundation.

(c) Though the witnesses, namely PWs.1,2, 3 and 4 had spoken about wordyaltercation between the appellant/accusedand the deceased, the same would not leadto the inference that they had committedthe heinous crime of murder and even asper the prosecution, wordy alteration tookplace in drunken state, they have not utteredany word stating that they will do away orfinish the life of the deceased.

(d) The arrest of the accused at about 2.00p.m. on 12.08.2013 and the recovery of


71

incriminating articles are also doubtful forthe reason that according to PW2,immediately after the occurrence, policewas informed and they came to the spotat about 7.00 a.m. on 12.08.2013 and atthat time, they brought the accused andthe juvenile accused and sometimethereafter, they were taken to the policestation.

(e) The Mahazar Witness for the recoveryof M.Os.1 and 4, namely PW6 would alsodisclose that his signature was obtainedat about 9.00 or 10.00 a.m. on 12.08.2013and his statement was recoreded at thattime and according to the prosecution, theaccused was arrested only at 2.00 p.m.on 12.08.2013 and as such, the time ofarrest of the accused and the recovery ofincriminating articles, as projected by theprosecution, is also highly doubtful.

(f) The material witnesses, namely PWs.1to 4, who had spoken about the Last SeenTheory, made very many improvements fromthat of the statements recorded from themunder Section 161(3) CrPC and as such,their evidence ought to have been eschewedin toto by the Trial Court.

(g) The Trial Court has recorded convictionmerely on the basis of the Chemical AnalysisReports, which would disclose that M.O.4-Shirt worn by the accused and M.O.1-Stonewere tainted with blood and mere recoveryof incriminating articles and the ChemicalAnalysis Reports would not lead to thepresumption that the appellant/accusedalong with juvenile accused has committed

the offence and even assuming that thosecircumstances have been proved, the restof the circumstances such as Last SeenTheory and Mens Rea on the part of theappellant/accused to do away with the lifeof the deceased/Neela have not been provedby the prosecution and since the chain ofcircumstances projected by the prosecutionis not complete and further, the case ofthe prosecution bristles with infirmities andinconsistencies, the Trial Court ought tohave awarded benefit of doubt and acquittedthe accused and instead, without assigningproper and tenable reasons, has convictedand sentenced him and prays for settingaside the impugned judgment of convictionand sentence passed by the Trial Court.

4. Per contra, Mr.R.Ravichandran, learnedGovernment Advocate (Crl.Side) appearingfor the respondent/State, in his usualvehemence and relentless pursuit, madeforcecul submission that the prosecution,through the testimonies of PWs.1 to 4,coupled with scientific evidence and otherevidence, had cogently linked the chain ofcircumstances pointing out the guilt on thepart of the appellant/accused and trivial/minor discrepancies have not affected thecore of the prosecution. It is the furthersubmission of the learned GovernmentAdvocate (Crl. Side) that admittedly, thewitnesses were examined nearly 3 yearsafter the date of occurrence and therefore,embellishment and discrepancies are boundto occur and this Court has to take intoconsideration the over all evidence of allwitnesses and find out as to whether theprosecution has proved the chain of


72

circumstances to link the accused with thecommission of the offence. It is the furthersubmission of the learned GovernmentAdvocate (Crl. Side) that the appellant/accused, while questioned under Section313(1)(b) CrPC, merely denied theincriminating circumstances and it couldbe an added or additional circumstance toconnect the accused with the commissionof the offence and the Trial Court, on athorough consideration of oral anddocumentary evidences, has rightly reachedthe conclusion to convict and sentence theaccused and it may not be interfered withand prays for dismissal of this appeal. Thelearned Government Advocate (Crl.Side), insupport of his submissions, relied upon thefollowing decisions:

(i)G.Parshwanatha v. State of Karnataka[(2010) 8 SCC 593]

(ii) Kishor Bhadke v. State of Maharashtra[(2017) 3 SCC 760]

(iii) Abu Thakir and Others v. State of TamilNadu, rep. by Inspector of Police, TamilNadu [(2010) 5 SCC 91]

(iv)Dharnidhar v. State of Uttar Pradesh andOthers [(2010) 7 SCC 759]

(v) Aftab Ahmad Ansari v. State of Uttaranchal[(2010) 2 SCC 583]

5. This Court paid it's anxious considerationand best attention to the submission madeby the learned counsel appearing for theappellant and the learned Government

Advocate (Crl.Side) appearing for the Stateand perused the oral and documentaryevidence and other materials.

6. It is a well settled proposition that Incases where evidence is of a circumstancialnature, the circumstances from which theconclusion of guilt is to be drawn should,in the first instance, be fully established;each fact sough to be relied upon mustbe proved individually. Although there shouldnot be any missing links in the case, yetit is not essential that each of the linksmust appear on the surface of the evidenceadduced and some of these links may haveto be inferred from the proved facts. Indrawing these inferences, the Court musthave regard to the common course of naturalevents and to human conduct and theirrelations to the facts of the particular caseand the Court thereafter, has to considerthe effect of proved facts. [SeeG.Parshwanath v. State of Karnataka (2010)8 SCC 593].

7. This Court, keeping in mind the timetested principles in a case of circumstantialnature, has carefully scrutinized andanalyzed the oral and documentaryevidence.

8. PW1 is the daughter of the deceasedand in her chief examination, she has spokenabout the wordy altercation, especially theuse of filthy and abusive words by theaccused as well as juvenile accused infront of the house of the deceased underthe influence of alcohol and she would furtherstate that on 11.08.2013 at about 11.00


73

p.m. after the wordy altercation was over,she saw the accused along with juvenileaccused going on the side of her motherhouse and on the next day, she wasinformed by her neighbour about the bloodstains found in her mother house. In thecross examination, PW1 made a crucialadmission that she did not write thecomplaint and it was written in the policestation and she was not aware of thecontents of the complaint. PW1 also madea crucial admission that in the statementrecorded during investigation, she did notstate about seeing both the accused goingby the side of her mother house and shewould further state that the compliant wasgiven at 10.00 to 11.00 a.m. and even priorto that, police, on receipt of information,came to the spot.

9. PW2 is the neighbour of PW1 and shehas corroborated the version of PW1 withregard to wordy altercation. In the crossexamination, PW2 would admit that at about6.30 a.m. on 12.08.2013, he was awareof the demise of Neela and immediatelyinformation was given and police came tothe sport at about 7.00 a.m. and even atthat time, they brought the accused/appellant and the juvenile accused and sometime thereafter, they were taken to the policestation.

10. PW3 has also corroborated the evidenceof PW1 and in the chief examination shehad seen both the accused together at11.00 p.m. and however in the crossexamination admitted that she has notstated so during the course of investigation.

11. PW4 has corroborated the testimoniesof PWs.1 to 3 with regard to wordy altercationand in the cross examination, he has statedthat at about 1.30 a.m. on 12.08.2013, hesaw the appellant/accused along withjuvenile accused with a lighted cigaretteand both of them went near the house ofthe deceased and however, in the crossexamination, PW4 would depose that hedid not state so during the course ofinvestigation that he saw both accused atabout 1.30 a.m. on 12.08.2013.

12. The testimonies of PWs.1 to 4, nodoubt, have sustained the case of theprosecution insofar as wordy altercation oruse of filthy words by the appellant/accusedunder the influence of alcohol. It is to bepointed out at this juncture that it is forthe prosecution to prove beyond reasonabledoubt that the appellant along with juvenileaccused has committed the heinous offenceof murder.

13. As regards the crucial aspect of seeingboth the accused near the house of thedeceased, the above said witnesses didnot state so while their statements wererecorded under Section 161(3) CrPC duringthe course of investigation and however,made improvements by leaps and boundsduring the course of their oral testimonies.

14. As regards arrest and recovery ofincriminating articles in pursuant to theadmissible portion of the confessionstatement, marked as Ex.P16, isconcerned, hereagain, the prosecution has


74

failed to prove the same. As already pointedout, PW2, in his cross examination, hasstated that police came to the spot onreceipt of information at about 7.00 a.m.on 12.08.2013 and at that time, they broughtthe accused as well as the juvenile accused.PW6- Mahazar Witness, in his crossexamination, would depose that hissignature was obtained in the recoverymahazar at about 9.00 to 10.00 a.m. on12.08.2013 and would admit that thoughin his chief examination, he deposed thatboth the accused voluntarily surrenderedand prayed for pardon before PW5, he didnot state so during the course of investigationand would further depose that he was inthe police station till 2.00 p.m. and till hewas present in the police station, both theaccused were kept in the police station.

15. In the light of the above said testimonies,the case of the prosecution that the accusedwas arrested at 2.00 p.m. on 12.08.2013and thereafter, in pursuant to the admissibleportion of the confession statement markedas Ex.P16, recovery was effected, becameunsustainable and this Court is of theconsidered view that the arrest of theaccused and recovery of incriminatingarticles became doubtful.

16. Insofar as the recovery of M.O.1-Stoneis concerned, as per the evidence of PW12/VAO, immediately on receipt of theinformation, he went to the house of Neelaand found her dead with head injuries onthe head and nearby a stone-M.O.1 wasfound and on returning to his office, heinformed the same to his higher official and

at about 2.00 p.m. police came to be spotand asked him to subscribe his signatureand as per Ex.P3/Mahazar, M.O.1-Stonewas recovered. PW12 would admit that hehas signed the mahazar only at the policestation and thereby implying that he hasnot signed the mahazar at the scene ofoccurrence.

17. A perusal of the Recovery Mahazar/Ex.P3 would also disclose that M.O.1-Stonewas recovered from a pond located behindthe house of the deceased and whereasPW6 would depose that it was found nearthe body of the deceased. Therefore, therecovery of incriminating articles, especiallyM.O.1-Stone, which was used by theaccused as well as juvenile accused forthe commission of offene, have not beenproved by the prosecution.

18. No doubt, the scientific evidence in theform of Exs.P10 P12/Chemical AnalysisReports would disclose that the articleswere tainted with human blood and however,that may not be the sole circumstance soas to enable the Trial Court to reach theconclusion that the appellant has committedthe offence. That apart, the InvestigatingOfficer/PW19, in his cross examination,was also put a specific question as to thebelated despatch of F.I.R. and in the crossexamination would admit that the F.I.R wasdespatched with 4 hours delay and it wasdespatched through the Head ConstableMr.Balasubramaniam, but he was notexamined during the course of investigation.PW19 would also admit about theimprovements in the testimonies of the above


75

cited witnesses and also admitted that hehas recorded the confession statement andthough he has admitted that the confessionstatement was recorded at about 12.00noon on 12.08.2013, wheres the accusedwas arrested at about 2.00 p.m. on12.08.2013. The prosecution has drawn theinference simply because the appellant/accused along with juvenile accused goingnearby the house of the deceased and theywould have committed the murder. Asalready pointed out, with regard to the saidcrucial aspect, the material witnesses havemade very many improvements from thatof their statements recorded under Section161(3) CrPC and therefore, it is not safeto rely upon their testimonies with regardto that material aspect.

19. The learned Government Advocate(Crl.Side) has also made a valiant attemptby inviting the attention ofthis Court to thejudgments in Aftab Ahmad Ansari v. Stateof Uttaranchal [(2010) 2 SCC 583],Dharnidhar v. State of Uttar Pradesh andOthers [(2010) 7 SCC 759] and Abu Thakirand Others v. State of Tamil Nadu [(2010)5 SCC 91] and would submit that as perthe ratio laid down in the above citedjudgments, the prosecution has establishedthe chain of circumstances and therefore,interference may not be warranted.

20. This Court, on going through the abovecited decisions, is of the considered viewthat the said decisions have no applicationto the case on hand.

21. In Aftab Ahmad Anasari v. State of

Uttaranchal [(2010) 2 SCC 583], the Hon'bleSupreme Court of India held that ifbloodstains are found on visible part ofclothes worn, normally such person wouldnot move around with those clothes andfurther the appellant therein had not deniedthe said fact in the course of his examinationunder Section 313 CrPC. However, in thecase on hand, this Court already held thatthe arrest of the accused at 2.00 p.m. on12.08.2013 itself is doubtful and so alsothe recoery of incriminating articles viz.,M.Os.1 to 4 and as such, the said decisionhas no application to the case on hand.

22. In Dharnidhar v. State of Uttar Pradeshand Others [(2010) 7 SCC 759], the Hon'bleSupreme Court of India held that admissionor confession of accused under S.313 CrPCrecorded in course of trial can be actedupon and Court can rely on theseconfessions to convict the accused. In thecase on hand, PW2 has spoken the factthat the accused were present in the custodyof police even at about 7.00 a.m. on12.08.2013 and whereas according to theprosecution, they were arrested at about2.00 p.m. on 12.08.2013 and as such, inthe light of the infirmities pointed out above,the said judgment also have no applicationto the case on hand.

23. In Abu Thakir and Others v. State ofTamil Nadu [(2010) 5 SCC 91] it is heldthat Criminal justice should not be madea casualty for the wrongs committed bythe Investigating Officers in the case; if theCourt is convinced that the testimony ofa witness to the occurrence is true, the


76

Court is free to act on it albeit theinvestigating officer's suspicious role in thecase .

24. It is to be remembered at this juncturethat if the case of the prosecution restsupon cicumstantial evience, it is the boundenduty of the prosecution to link the chainof circumstances unerringly to connect theaccused for the commission of offence, butthey have miserably failed to do so.

25. In Kanhaiya Lal v. State of Rajasthan[(2014) 4 SCC 715], the Hon'ble SupremeCourt of India held that circumstance of lastseen together does not by itself necessarilylead to inference that it was accused whocommitted the crime but there must besomething more to connect the accusedwith the crime and to point out guilt ofaccused and none else.

26. In Shyamal Ghosh v. State of WestBengal [(2012) 7 SCC 646], the Hon'bleSupreme Court of India held that thereasonableness of the time gap is .... ofsome significance. If the time gap is verylarge, then it is not only difficult but mayeven not be proper for the Court to inferthat the accused had been last seen alivewith the deceased and thus was responsiblefor commission of the offence. However,facts of the said case would disclose thatevidence was available as to the deceasedlast seen together alive with the accused/appellant therein, but in the case on hand,the prosecution has failed to establish thesame.


27. In the considered opinion of the Court,there are very many gaps and holes in thecase projected by the prosecution and thechain of circumstances to link the accusedwith the commission of offence is not atall complete and therefore, benefit of doubtshall enure in favour of the appellant.

28. In the result, this Criminal Appeal isallowed and the conviction recorded andsentence imposed on the appellant underSection 302 I.P.C., vide impugned judgmentdated 06.03.2017 made in S.C.No.137 of2015 passed by the learned Sessions Judge,Mahila Fast Track Court, Dharmapuri,Dharmapuri District is set aside and theappellant/sole accused is acquitted of thecharge framed against him.

--X--

77

2017 (3) L.S. 87 (S.C)

IN THE SUPREME COURT OF INDIA

NEW DELHI

Present:

The Hon'ble Mr.JusticeAdarsh Kumar Goel &

The Hon'ble Mr.Justice

Uday Umesh Lalit

Nitya Dharmananda @K.Lenin & Anr., ..Appellants

VsSri Gopal Sheelum Reddy& Anr., ..Respondents

CRIMINAL PROCEDURE CODE,Sec.91 - INDIAN PENAL CODE, Sec.376- Respondent approached High Courtwith the prayer that entire materialavailable with the investigator, whichwas not made part of the charge sheet,ought to be summoned u/Sec.91 ofCr.P.C. – Said Application wasallowed.

Held - While ordinarily the Courthas to proceed on the basis of materialproduced with the charge sheet fordealing with the issue of charge but ifthe Court is satisfied that there ismaterial of sterling quality which hasbeen withheld by the investigator/prosecutor, the Court is not debarredfrom summoning or relying upon thesame even if such document is not partof a charge sheet – It does not meanthat the defence has a right to invoke

Sec.91 of Cr.P.C. de hors the satisfactionof the Court, at the stage of charge -Appeal preferred by the appellants toset aside the view taken by the HighCourt is allowed.

J U D G M E N T

Delay condoned. Leave granted.

2. We have heard learned counsel for the

State, the Digitally signed by complainant,

the accused and the learned amicus, Mr.

Siddharth MAHABIR SINGH Date:

2017.12.08 16:55:29 IST Reason:

Luthra, Senior Advocate.

3. The respondent, Gopal Sheelum Reddy

alias Nithya Bhaktananda, was charge

sheeted for offences, inter alia, under

Section 376 of the Indian Penal Code. The

respondent approached the High Court with

the prayer that the entire material available

with the investigator, which was not made

part of the chargesheet, ought to be

summoned under Section 91 of the Cr.P.C.

The High Court, reversing the contrary view

of the trial court, allowed the said

application.

4. Contention raised on behalf of the

appellants is that the view of the High Court

is contrary to law laid down by this Court

in State of Orissa versus Debendra Nath

Padhi (2005) 1 SCC 568 and reiterated in

the subsequent decisions. The defence

Nitya Dharmananda @ K.Lenin & Anr., Vs Sri Gopal Sheelum Reddy & Anr., 87

Crl.A.No.2114/17 Date:07-12-2017

78

could not be considered at the stage of

framing of charge so as to avoid a mini

trial.

5. Learned counsel for the defence, on the

other hand, submitted that if the investigator

is not fair and the material of sterling quality,

though seized during investigation and

available with him, is deliberately left out

from the chargesheet, there is no bar for

the court to summon the said material.

6. It is settled law that at the stage of

framing of charge, the accused cannot

ordinarily invoke Section 91. However, the

court being under the obligation to impart

justice and to uphold the law, is not debarred

from exercising its power, if the interest of

justice in a given case so require, even if

the accused may have no right ˇto invoke

Section 91. To exercise this power, the

court is to be satisfied that the material

available with the investigator, not made

part of the chargesheet, has crucial bearing

on the issue of framing of charge.

7. In Debendra Nath Padhi, supra, it was

observed:

“25. Any document or other thing envisaged

under the aforesaid provision can be ordered

to be produced on finding that the same

is “necessary or desirable for the purpose

of investigation, inquiry, trial or other

proceedings under the Code”. The first and

foremost requirement of the section is about

the document being necessary or desirable.

The necessity or desirability would have to

be seen with reference to the stage when

a prayer is made for the production. If any

document is necessary or desirable for the

defence of the accused, the question of

invoking Section 91 at the initial stage of

framing of a charge would not arise since

defence of the accused is not relevant at

that stage. When the section refers to

investigation, inquiry, trial or other

proceedings, it is to be borne in mind that

under the section a police officer may move

the court for summoning and production of

a document as may be necessary at any

of the stages mentioned in the section.

Insofar as the accused is concerned, his

entitlement to seek order under Section 91

would ordinarily not come till the stage of

defence. When the section talks of the

document being necessary and desirable,

it is implicit that necessity and desirability

is to be examined considering the stage

when such a prayer for summoning and

production is made and the party who makes

it, whether police or accused. If under Section

227, what is necessary and relevant is only

the record produced in terms of Section

173 of the Code, the accused cannot at

that stage invoke Section 91 to seek

production of any document to show his

innocence. Under Section 91 summons for

ˇ production of document can be issued

by court and under a written order an officer

in charge of a police station can also direct

production thereof. Section 91 does not

confer any right on the accused to produce

document in his possession to prove his

defence. Section 91 presupposes that when

the document is not produced process may

88 LAW SUMMARY (S.C.) 2017(3)

79

be initiated to compel production thereof.”

8. In Hardeep Singh Etc. versus State of

Punjab and ors. Etc. (2014) 3 SCC 92 a

Bench of five-Judges observed:

“19. The court is the sole repository

of justice and a duty is cast upon

it to uphold the rule of law and,

therefore, it will be inappropriate to

deny the existence of such powers

with the courts in our criminal justice

system where it is not uncommon

that the real accused, at times, get

away by manipulating the

investigating and/or the prosecuting

agency. The desire to avoid trial is

so strong that an accused makes

efforts at times to get himself

absolved even at the stage of

investigation or inquiry even though

he may be connected with the

commission of the offence.”

9. Thus, it is clear that while ordinarily the

Court has to proceed on the basis of material

produced with the charge sheet for dealing

with the issue of charge but if the court

is satisfied that there is material of sterling

quality which has been withheld by the

investigator/prosecutor, the court is not

debarred from summoning or relying upon

the same even if such document is not a

part of the charge sheet. It does not mean

that the defence has a right to invoke Section

91 Cr.P.C. de hors the satisfaction of the

court, at the stage of charge.

10. Accordingly, the view to the contrary

in the impugned judgment cannot be

sustained and is set aside.

11. The trial court may now proceed to deal

with the issue of framing of charge in the

light of the observations made hereinabove

and also to proceed with the matter

expeditiously in accordance with law.

The parties are directed to appear before

the trial court for further proceedings on

Monday, the 12th February, 2018.

We record our deep appreciation for the

valuable assistance rendered by Mr.

Siddharth Luthra, learned senior counsel,

as amicus.

The appeals are accordingly disposed

of.

--X--

Nitya Dharmananda @ K.Lenin & Anr., Vs Sri Gopal Sheelum Reddy & Anr., 89

80


2017 (3) L.S. 90 (S.C)

IN THE SUPREME COURT OF INDIA

NEW DELHI

Present:

The Hon'ble Mr.JusticeRanjan Gogoi &

The Hon'ble Mr.Justice

R.Banumathi

Asharfi ..Appellant

Vs.

State of Uttar Pradesh ..Respondent

SC/ST PREVENTION OFATROCITIES ACT, Sec.3(2)(V) - INDIANPENAL CODE, Secs.323, 376(2)(g) and450 – Post amendment of the SC/STAct, mere knowledge of the accusedthat the person upon whom the offenceis committed belongs to SC/STcommunity suffices to bring home thecharge under Section 3(2)(v) of the Act.

In the instant case so far asconviction U/S 376(2)(g), IPC is notinterfered - Since unamended provisionsof the SC/ST Act are applicable in thepresent case and evidence andmaterials on record do not show thatappellant had committed rape on victimon the ground that she belonged to SC/ST community, the same cannot besustained – Accused already undergoneimprisonment for more than ten years,appellant is ordered to be releasedforthwith-


R.Bhanumathi)

1. This appeal arises out of the judgment

of the Allahabad High Court in Criminal

Appeal No. 8270 of 2007 dated 29.01.2013

in and by which the High Court affirmed

the conviction and sentence of the appellant

awarded by the trial court. The trial court

vide its judgment dated 30.11.2007 convicted

the appellant for the offences under Sections

450, 376(2)(g), 323 IPC and under Section

3(2)(v) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities)

Act, 1989 [for short 'the SC/ST Prevention

of Atrocities Act]. For conviction under

Section 376(2)(g) IPC, the appellant was

sentenced ˇto undergo rigorous

imprisonment for ten years with fine of Rs.

8,000/- with default clause and for conviction

under Section 3(2)(v) of the SC/ST Prevention

of Atrocities Act, the appellant was

sentenced to undergo life imprisonment with

fine of Rs. 10,000/- with default clause. The

appellant was also imposed sentence of

imprisonment for other offences under Indian

Penal Code.

2. Case of the prosecution is that on the

intervening night of 8/9.12.1995, appellant

Asharfi and one Udai Bhan are alleged to

have forcibly opened the door and entered

inside the house of PW-3-Phoola Devi and

PW-4-Brij Lal and said to have committed

rape on PW-3 Phoola Devi. PW-4-Brij Lal

was kept away on the point of pistol. On

raising alarm, neighbours (PW-1-Rassu andCrl.A.No.1182/15 Date: 8-12-2017

81

Asharfi Vs. State of Uttar Pradesh 91

PW-2-Baghraj) came there and on seeing

them, the accused persons ran away

threatening the witnesses. Based on the

complaint lodged by the complainant Brij

Lal, FIR was registered in Case Crime No.76

of 1996 under Sections 376/452/323/506

IPC and under Section 3(1) 12 SC/ST Act

against appellant and one Udai Bhan. After

completion of investigation, chargesheet was

filed against the appellant and the said Udai

Bhan for the abovesaid offences. As noted

above, the appellant and Udai Bhan were

convicted for various offences by the trial

court. In the appeal ˇpreferred by the

appellant before the High Court, the High

Court affirmed the conviction of the appellant

and the said Udai Bhan.

3. We have heard the learned amicus curiae

appearing for the appellant. None appeared

on behalf of the respondent. We have

carefully perused the impugned judgment

and materials on record.

4. So far as the conviction under Section

376(2)(g) IPC is concerned, based upon the

evidence of PW-3-Phoola Devi and PW-4

Brij Lal and the medical evidence, both the

courts below recorded concurrent findings

that the charge of rape has been proved.

We are not inclined to interfere with the

same and also the sentence of ten years

of imprisonment imposed upon him. We

also find no perversity with respect to the

conviction and sentence of the appellant

with respect to other offences under Indian

Penal Code.

5. In respect of the offence under Section

3(2)(v) of the SC/ST Prevention of Atrocities

Act, the appellant had been sentenced to

life imprisonment. The gravamen of Section

3(2)(v) of SC/ST Prevention of Atrocities Act

is that any offence, envisaged under Indian

Penal Code punishable with imprisonment

for a term of ten years or more, against

a person belonging Scheduled Caste/

Scheduled Tribe, should have been

committed on the ground that "such person

is a member of ˇa Scheduled Caste or

a Scheduled Tribe or such property belongs

to such member". Prior to the Amendment

Act 1 of 2016, the words used in Section


Act are "......on the ground that such person

is a member of a Scheduled Caste or a

Scheduled Tribe".

6. Section 3(2)(v) of the SC/ST Prevention

of Atrocities Act has now been amended

by virtue of Amendment Act 1 of 2016. By

way of this amendment, the words ".......on

the ground that such person is a member

of a Scheduled Caste or a Scheduled Tribe"

have been substituted with the words

"........knowing that such person is a member

of a Scheduled Caste or Scheduled Tribe".

Therefore, if subsequent to 26.01.2016 (i.e.

the day on which the amendment came

into effect), an offence under Indian Penal

Code which is punishable with imprisonment

for a term of ten years or more, is committed

upon a victim who belongs to SC/ST

community and the accused person has

knowledge that such victim belongs to SC/

ST community, then the charge of Section

82


3(2)(v) of SC/ST Prevention of Atrocities Act

is attracted. Thus, after the amendment,

mere knowledge of the accused that the

person upon whom the offence is committed

belongs to SC/ST ˇcommunity suffices to

bring home the charge under Section 3(2)(v)

of the SC/ST Prevention of Atrocities

Act.

7. In the present case, unamended Section


Act is applicable as the occurrence was

on the night of 8/9.12.1995. From the

unamended provisions of Section 3(2)

(v) of the SC/ST Prevention of Atrocities

Act, it is clear that the statute laid stress

on the intention of the accused in committing

such offence in order to belittle the person

as he/she belongs to Scheduled Caste or

Scheduled Tribe community.

8. The evidence and materials on record

do not show that the appellant had

committed rape on the victim on the ground

that she belonged to Scheduled Caste.

Section 3(2)(v) of the SC/ST Prevention of

Atrocities Act can be pressed into service

only if it is proved that the rape has been

committed on the ground that PW-3 Phoola

Devi belonged to Scheduled Caste

community. In the absence of evidence

proving intention of the appellant in

committing the offence upon PW-3-Phoola

Devi only because she belongs to

Scheduled Caste community, the conviction

of the appellant under Section 3(2)(v) of the

SC/ST Prevention of Atrocities Act cannot

be sustained.

9. In the result, the conviction of the

appellant under Section 3(2)(v) of the

Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 and the

sentence of life imprisonment imposed upon

him are set aside and the appeal is partly

allowed.

10. So far as the conviction of the appellant

under Section 376(2)(g) IPC and other

offences and sentence of imprisonment

imposed upon him are confirmed. As the

appellant had already undergone more than

ten years, the appellant is ordered to be

released forthwith unless he is required in

any other case.

--X--

83

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