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Dalveer Bhandari
Code of Criminal Procedure, 1973: s. 438 – Anticipatory bail – Grant of – Appellant was member of a political party – FIR alleging that appellant and his brother instigated their party workers to fire gun shots at the workers of opponent political party which resulted in the murder of one person – Murder took place eight days after the incident of instigation – Application for anticipatory bail by appellant – Rejection of, by the High Court – Sustainability of – Held: Order passed by the High Court not sustainable – Appellant directed to join investigation and in the event of arrest, appellant to be released on bail on his furnishing a personal bond – Judgment of Constitution Bench of the Supreme Court in *Sibbia’s case being on the same issue regarding ambit, scope and object of the concept of anticipatory bail u/s. 438 followed – Judicial discipline – Bail – Precedent. ss. 438 and 437 – Power u/s 438, if subject to limitations u/s. 437 – Held: The limitations mentioned in s. 437 cannot be read into s. 438 – Plentitude of s. 438 must be given its full play – Court can impose conditions for the grant of bail – Bail. s. 438 – Anticipatory bail – Grant of, for limited period – Held: Order granting anticipatory bail for a limited duration and, thereafter, directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in *Sibbia’s case – When the bail order is confirmed then the benefit of the grant of the bail should continue till the end of the trial of that case – Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty – s.438 does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted – Courts should not impose restrictions on the ambit and scope of s. 438 which are not envisaged by the legislature – Constitution of India, 1950 – Article 21 – Interpretation of statutes – Legislative intent. s. 438 – Anticipatory bail – Scope and ambit of – Discussed. s. 438 – Anticipatory bail – Grant or refusal of – Exercise of power – Relevant considerations for – Held: Courts should maintain fine balance between societal interest vis-=Allowing the appeal, the Court HELD: 1.1 In the instant case, there is a direct judgment of the Constitution Bench of this Court in Sibbia’s case dealing with exactly the same issue regarding ambit, scope and object of the concept of anticipatory bail enumerated under Section 438 of the Code of Criminal Procedure, 1973. The controversy is no longer res integra. The judicial discipline obliges this Court to follow the said judgment in letter and spirit. The impugned judgment and order of the High Court declining anticipatory bail to the appellant cannot be sustained and is consequently set aside. The appellant is directed to join the investigation and fully cooperate with the investigating agency. In the event of arrest the appellant would be released on bail. [Paras 151, 152 and 153] [273-H; 274-A-C] 1.2 This Court in the *Sibbia’s case laid down the following principles with regard to anticipatory bail: (a) Section 438(1) Cr.P.C. is to be interpreted in light of Article 21 of the Constitution of India. (b) Filing of FIR is not a condition precedent to exercise of power under Section 438 Cr.P.C. (c) Order under Section 438 would not affect the right of police to conduct investigation. (d) Conditions mentioned in Section 437 Cr.P.C. cannot be read into Section 438 Cr.P.C. (e) Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would “not justify the conclusion that the power must be exercised in exceptional cases only.” (f) Powers are discretionary to be exercised in light of the circumstances of each case. (g) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re- examined after hearing. Such ad interim order must conform to requirements of the Section and suitable conditions should be imposed on the applicant. [Para 119] [261-B-H; 262-A] 1.3 The Constitution Bench in *Sibbia’s case comprehensively dealt with almost all aspects of the concept of anticipatory bail under Section 438 Cr.P.C. In view of the clear declaration of law laid down by the Constitution Bench in *Sibbia’s case, it would not be proper to limit the life of anticipatory bail. When the court observed that the anticipatory bail is for limited duration and thereafter, the accused should apply to the regular court for bail, that means the life of Section 438 Cr.P.C. would come to an end after that limited duration. This limitation has not been envisaged by the legislature. The Constitution Bench in *Sibbia’s case clearly observed that it is not necessary to re-write Section 438 Cr.P.C. Therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under Section 438 Cr.P.C. granting bail cannot be curtailed. [Paras 133 and 134] [267-C-H; 268-A] *Gurbaksh Singh Sibbia and Ors. vs. State of Punjab (1980) 2 SCC 565 – followed. 2.1 The society has a vital interest in grant or refusal of bail because every criminal offence is an offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty. [Para 3] [221-C-D] 2.2 Police custody is an inevitable concomitant of arrest for non-bailable offences. The concept of anticipatory bail is that a person who apprehends his arrest in a non-bailable case can apply for grant of bail to the Court of Sessions or to the High Court before the arrest. It is clear from the statement of objects and reasons that the purpose of incorporating Section 438 in the Code of Criminal Procedure, 1973 was to recognize the importance of personal liberty and freedom in a free and democratic country. On analyzing Section 438 Cr.P.C. the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court. [Paras 14 and 17] [227-B-C; F-H] 3.1 All human beings are born with some unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. That is why `liberty’ is called the very quintessence of a civilized existence. [Paras 42 and 43] [235-H; 236-A-B] 3.2 The term `liberty’ may be defined as the affirmation by an individual or group of his or its own essence. It needs the presence of three factors, harmonious balance of personality, the absence of restraint upon the exercise of that affirmation and organization of opportunities for the exercise of a continuous initiative. `Liberty’ generally means the prevention of restraints and providing such opportunities, the denial of which would result in frustration and ultimately disorder. Restraints on man’s liberty are laid down by power used through absolute discretion, which when used in this manner brings an end to `liberty’ and freedom is lost. At the same time `liberty’ without restraints would mean liberty won by one and lost by another. So `liberty’ means doing of anything one desires but subject to the desire of others. [Paras 45, 46 and 47] [236-G- H; 237-A-E] 3.3 In a properly constituted democratic State, there cannot be a conflict between the interests of the citizens and those of the State. The harmony, if not the identity, of the interests of the State and the individual, is the fundamental basis of the modern Democratic National State. Yet the existence of the State and all government and even all law must mean in a measure the curtailment of the liberty of the individual. But such a surrender and curtailment of his liberty is essential in the interests of the citizens of the State. The individuals composing the State must, in their own interests and in order that they may be assured the existence of conditions in which they can, with a reasonable amount of freedom, carry on their other activities, endow those in authority over them to make laws and regulations and adopt measures which impose certain restrictions on the activities of the individuals. [Para 51] [238-D-G] Chambers’ Twentieth Century Dictionary; Essays on Freedom and Power by John E.E.D.; Treatise on War and Civil Liberties by M.C. Setalvad; Development of Constitutional Guarantee of Liberty by Rosco Pound; Commentaries on the Laws of England by Blackstone Vol. I, p.134; Constitutional Law by Dicey 9th Edn., pp.207-08 – referred to. 4.1 The Fundamental Rights represent the basic values enriched by the people of this country. The aim behind having elementary right of the individual such as the Right to Life and Liberty is not fulfilled as desired by the framers of the Constitution. It is to preserve and protect certain basic human rights against interference by the State. The inclusion of a Chapter in Constitution is in accordance with the trends of modern democratic thought. The object is to ensure the inviolability of certain essential rights against political vicissitudes. [Para 59] [240-E-F] 4.2 Article 21 of the Constitution of India, 1950 is a declaration of deep faith and belief in human rights. In this pattern of guarantee woven in Chapter III of the Constitution, personal liberty of man is at root of Article 21 and each expression used in Article 21 enhances human dignity and values. It lays foundation for a society where rule of law has primary and not arbitrary or capricious exercise of power. The early approach to Article 21 which guarantees right to life and personal liberty was circumscribed by literal interpretation in A.K. Gopalan case. But in course of time, the scope of the application of the Article against arbitrary encroachment by the executives was expanded by liberal interpretation of the components of the Article in tune with the relevant international understanding. Thus, protection against arbitrary privation of “life” no longer means mere protection of death, or physical injury, but also an invasion of the right to “live” with human dignity and would include all these aspects of life which would go to make a man’s life meaningful and worth living, such as his tradition, culture and heritage. The object of Article 21 is to prevent encroachment upon personal liberty in any manner. Article 21 is repository of all human rights essentially for a person or a citizen. A fruitful and meaningful life presupposes full of dignity, honour, health and welfare. In the modern “Welfare Philosophy”, it is for the State to ensure these essentials of life to all its citizens, and if possible to non-citizens. [Paras 67, 69 and 71] [242-H; 243-A, D-F, H; 244- A-B] A. K. Gopalan v. The State of Madras AIR 1950 SC 27; Kharak Singh v. State of U.P. and Ors. AIR 1963 SC 1295; Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248; State of A.P. v. Challa Ramakrishna Reddy and Ors. (2000) 5 SCC 712; Kartar Singh v. State of Punjab and Ors. (1994) 3 SCC 569; Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors. (1981) 1 SCC 608; P. Rathinam/Nagbhusan Patnaik v. Union of India and Anr. (1994) 3 SCC 394; Khedat Mazdoor Chetana Sangath v. State of M.P. and Ors. (1994) 6 SCC 260; Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr. (1986) 3 SCC 156; Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526 – relied on. Bugdaycay v. Secretary of State for the Home Department (1987) 1 All ER 940; R on the application of Pretty v. Director of Public Prosecutions (2002) 1 All ER 1; R. v. Curr (1972) S.C.R. 889 – referred to. 5.1 The complaint filed against the accused needs to be thoroughly examined including the aspect whether the complainant has filed false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law. The gravity of charge and exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court. [Paras 94 and 95] [252-G-H; 253-A-C] 5.2 It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully co-operating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. [Paras 96] [253-D-E] 6.1 The Constitution Bench in Sibbia’s case clearly observed that there is no justification for reading into Section 438 Cr.P.C. the limitations mentioned in Section 437 Cr.P.C. The plentitude of the Section must be given its full play. [Para 98] [253-H; 254-A-B] 6.2 The proper course of action for grant of anticipatory bail ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public prosecutor. After hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case. [Para 101] [254-G-H; 255-A-B] 6.3 The court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the public prosecutor or the complainant on finding new material or circumstances at any point of time. [Para 103] [255-D] 6.4 The intention of the legislature is quite clear that the power of grant or refusal of bail is entirely discretionary. The Constitution Bench in Sibbia’s case clearly stated that grant and refusal is discretionary and it should depend on the facts and circumstances of each case; and that the wisdom of the Legislature entrusting this power to the superior courts namely, the High Court and the Court of Session must be respected. [Para 104] [255-E-F] 7.1 The order granting anticipatory bail for a limited duration and, thereafter, directing the accused to surrender and apply before a regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia’s case. [Para 102] [255-C] 7.2 The court which grants the bail also has the power to cancel it according to the provisions of the General Clauses Act but ordinarily after hearing the public prosecutor when the bail order is confirmed then the benefit of the grant of the bail should continue till the end of the trial of that case. [Para 105] [256-D] 7.3 The restriction on the provision of anticipatory bail under Section 438 Cr.P.C. limits the personal liberty of the accused granted under Article 21 of the Constitution. In order to meet the challenge of Article 21 of the Constitution the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. [Para 107] [256-F-H; 257-A] Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248 – relied on. 7.4 Section 438 Cr.P.C. does not mention anything about the duration to which a direction for release on bail in the event of arrest can be granted. The order granting anticipatory bail is a direction specifically to release the accused on bail in the event of his arrest. Once such a direction of anticipatory bail is executed by the accused and he is released on bail, the concerned court would be fully justified in imposing conditions including direction of joining investigation. [Para 108] [257-B- C] 7.5 In pursuance to the order of the Court of Sessions or the High Court, once the accused is released on bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail. The court must bear in mind that at times the applicant would approach the court for grant of anticipatory bail on mere apprehension of being arrested on accusation of having committed a non- bailable offence. In fact, the investigating or concerned agency may not otherwise arrest that applicant who has applied for anticipatory bail but just because he makes an application before the court and gets the relief from the court for a limited period and, thereafter, he has to surrender before the trial court and only thereafter his bail application can be considered and life of anticipatory bail comes to an end. This may lead to disastrous and unfortunate consequences. [Paras 110 and 111] [257-E-H; 258- A] 7.6 The courts should not impose restrictions on the ambit and scope of Section 438 Cr.P.C. which are not envisaged by the Legislature. The court cannot rewrite the provision of the statute in the garb of interpreting it. It is unreasonable to lay down strict, inflexible and rigid rules for exercise of such discretion by limiting the period of which an order under this Section could be granted. Once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused. [Paras 113, 114 and 117] [258-E-H; 260-G-H; 261-A] 8.1 No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. No attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. [Para 121] [262-F-G] 8.2 The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused’s likelihood to repeat similar or the other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. [Para 122] [263-A-H; 264-A-D] 8.3 The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record. [Paras 123 and 124] [264-D- F] 8.4 Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case. In case, the State considers the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the accused in a routine manner. These suggestions which are only illustrative and not exhaustive are: (1) Direct the accused to join investigation and only when the accused does not co-operate with the investigating agency, then only the accused be arrested. (2) Seize either the passport or such other related documents, such as, the title deeds of properties or the Fixed Deposit Receipts/Share Certificates of the accused. (3) Direct the accused to execute bonds; (4) The accused may be directed to furnish sureties of number of persons which according to the prosecution are necessary in view of the facts of the particular case. (5) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided. (6) Bank accounts be frozen for small duration during investigation. [Paras 127 and 128] [265-D-H; 266-A-C] 8.5 In case the arrest is imperative, according to the facts of the case, in that event, the arresting officer must clearly record the reasons for the arrest of the accused before the arrest in the case diary, but in exceptional cases where it becomes imperative to arrest the accused immediately, the reasons be recorded in the case diary immediately after the arrest is made without loss of any time so that the court has an opportunity to properly consider the case for grant or refusal of bail in the light of reasons recorded by the arresting officer. [Para 129] [266-D] 8.6 The exercise of jurisdiction under Section 438 Cr.P.C. is extremely important judicial function of a judge and must be entrusted to judicial officers with some experience and good track record. Both individual and society have vital interest in orders passed by the courts in anticipatory bail applications. It is imperative for the High Courts through its judicial academies to periodically organize workshops, symposiums, seminars and lectures by the experts to sensitize judicial officers, police officers and investigating officers so that they can properly comprehend the importance of personal liberty vis-
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 2271 2010. (Arising out of SLP (Crl.) No.7615 of 2009) Siddharam Satlingappa Mhetre …..Appellant Versus State of Maharashtra and Others …..Respondents JUDGMENT Dalveer Bhandari, J. 1. Leave granted. 2. This appeal involves issues of great public importance pertaining to the importance of … Continue reading
Penal Code, 1860 : Ss.498A, 306 and 109 r/w s.34 IPC – Dowry harassment – Mental torture – Suicide by wife – Husband convicted and sentenced by trial court – Upheld by High Court – On appeal, Held: The circumstances enumerated in the deceased’s letter to her parents and the evidence of PWs lead to a situation where she was virtually left with no option except to take upon extreme step of putting an end to her life – Trial court and High Court correctly evaluated the entire evidence on record and arrived at correct conclusion – Hence no interference called for. The appellant and his parents were charged with offences punishable under Ss.498A, 306 and 109 r/w S.34 IPC for dowry harassment, causing mental torture to the deceased. Appellant was convicted and sentenced by the trial court; his parents were acquitted. High Court upheld the same. Hence the appeal. -Dismissing the appeal, the Court HELD: 1. The evidence of P.W.6 (neighbour of the deceased), P.W.7 (sister of the deceased) and P.W.8 (father of the deceased) clearly lead to the only conclusion that this was a case of extreme mental cruelty which was perpetuated from the point of marriage and lasted till the deceased had committed suicide. There cannot be any iota of doubt that the extreme mental cruelty and torture compelled the deceased to put an end to her life. The appellant was wholly responsible for creating all the circumstances which led the deceased to take an extreme step of putting an end to her life. [Para 22] [ 46-F, G] 2. Exh. 46, the letter written by the deceased to her parents on 9.10.1989 immediately before she had committed suicide, gives graphic description of the number of instances of extreme mental torture, day in and day out. This letter gives the impression that the appellant was deriving sadistic pleasure in causing extreme mental torture to the deceased. He would leave no stone unturned to ensure that the maximum mental torture and agony is caused to the deceased. There is not the slightest doubt that the circumstances which have been enumerated in Exh. 46 and the testimony of P.Ws. 6, 7 and 8 lead to a situation where the deceased virtually was left with no option except to take an extreme step of putting an end to her life. [Para 23] [ 46-H; 47-A, B] 3. The Additional Sessions Judge and the learned Judge of the High Court correctly evaluated the entire evidence on record and arrived at correct conclusion. No interference is called for. [Para 24] [ 47-E, D] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No 891 of 2001 From the final Judgment and Order dated 9.3.2001 of the High Court of Judicature at Bombay, Bench at Aurangabad in Criminal Appeal No. 187 of 1991 U.U. Lalit, Nitin Sangra and Sidhesh Kotwal (for Gaurav Agrawal), with him for the Appellant. Sushil Karanjkar and Kailash Pandey (for Ravindra Keshavrao Adsure), for the Respondent. =abatement of suicide – extreme mental torture 1. putting restrictions on her salary2insulting before the guests for small things3.constantly proclaiming that he is going to give divorce 4. intentionally by twisting the leg of the son, broken the leg of kid 6. proclaiming that others are waiting for him 7. providing no room for love and affection even for single movementh. 46, the letter written by the deceased to her parents on 9.10.1989 immediately before she had committed suicide, gives graphic description of the number of instances of extreme mental torture, day in and day out. This letter gives the impression that the appellant was deriving sadistic pleasure in causing extreme mental torture to the deceased. He would leave no stone unturned to ensure that the maximum mental torture and agony is caused to the deceased. We do not find the slightest doubt that the circumstances which have been enumerated in Exh. 46 and the testimony of P.Ws. 6, 7 and 8 lead to a situation where the deceased virtually was left with no option except to take an extreme step of putting an end to her life.
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO 891 OF 2001 Milind Bhagwanrao Godse .. Appellant Versus State of Maharashtra & Another .. Respondents JUDGMENT Dalveer Bhandari, J. 1. This appeal is directed against the judgment of the High Court of Judicature of Bombay, Bench at Aurangabad in Criminal Appeal … Continue reading
Constitution of India-Articles 25 and 26-Societies Registration Act, 1860-Tamil Nadu Societies Registration Act, 1975-Sections 44 and 53-Suit filed before High Court to declare elections of a Society as null and void-Advocate Commissioner appointed by the High Court held elections and submitted a Report stating that the Society has become defunct-High Court set aside the elections on that ground-Correctness of-Held, State Act provides for mechanism for removal of a defunct Society from the Register of Societies and dissolve the registered Society-It is for the authorities under the Act and not the High Court to look into whether a Society has become defunct-Hence, setting aside the elections on the ground that the Society has become defunct is not valid. A Church, initially registered under the Societies Registration Act, 1860, came to be governed under the Tamil Nadu Societies Registration Act, 1975. The Church runs a large number of schools and hospitals. A suit was filed against the Church before High Court to declare the elections conducted by its Society as null and void. The High Court appointed an Advocate Commissioner to hold the elections. The Commissioner conducted the elections and submitted a report to the High Court stating that the Society has become defunct. The High Court, on the basis of the report, gave directions to the elected members of the Society to apply for fresh registration with the Registrar of Societies. On non-compliance of the directions, the High Court set aside the elections of the Society. Appellant and one another, who were elected members, filed an application for impleading them as parties to the suit before the High Court. The High Court dismissed the application on the ground that the elections have already been declared null and void. The High Court appointed an Administrator for managing the Society. In appeal to this Court, the appellants contended that the High Court erred in declaring the elections null and void since the Registrar of Societies appointed under the Tamil Nadu Societies Registration Act, 1975 has sufficient powers to inquire into the affairs of a Society and cancel registration or order winding up or remove defunct societies from the Register; that the elections, conducted under the supervision of the Advocate Commissioner, have not been held to be unfair; that the order passed by the High Court on the basis of the purported consent of other elected members, without making them as parties, is a nullity; that the appointment of the Administrator was beyond the jurisdiction of the High Court; and that it violated the fundamental rights of the appellants under Articles 25 and 26 of the Constitution of India. =Allowing the appeals, the Court HELD: 1.1. The Tamil Nadu Societies Registration Act, 1975 provides for the mode and manner in which registration of a society is to be cancelled and winding up of a society and removal of a defunct registered society from the registers maintained by the Inspector General of Registration. The statutory authority under the Act abdicated itself of its statutory functions. It was for the statutory authorities to take recourse to such actions as are provided for in the Act and Rules framed thereunder. In the event, the Society became defunct or other statutory requirements were not complied with by the members of the Society, penal measures could have been taken but in no situation the elections of the office bearers could have been set aside. [221-e, f; 226-a, b, c, d, e] 1.2. Right to contest an election of an office bearer of the Society is a statutory right of the member thereof. Such a right also exists under the bye-laws of the society. Once a valid election was held, the High Court could not have directed setting aside of an election only on the purported ground that it became defunct. The High Court in a pending suit could not have done so. It should have relegated the parties to take recourse to such remedies as are available in law for questioning the validity of the election before the appropriate forum. [226-e-f; 227-d-e] Board of Control for Cricket in India and Anr. v. Netaji Cricket Club and Ors., [2005] 4 SCC 741, referred to. 1.3. Keeping in view the interest of the general public, the Court can oversee its functions in case of mismanagement of charitable organisations, although run by minorities. The rights under Articles 25 and 26 of the Constitution of India are not absolute and unfettered. The right to manage does not carry with it a right to mismanage. [227-h; 228-a] Guruvayoor Devaswom Managing Committee and Anr. v. C.K. Rajan and Ors., [2003] 7 SCC 546, referred to. V. Giri, Ajay K. Jain, Dileep Pillai, Sajith P., M.P. Vinod, Dr. A. Francis Julian, Ashwani Bhardwaj, A. Mariarputham, Aruna Mathur and Mini N. Nair (for M/s. Arputham Aruna & Co.) for the Appellants. T.L.V. Iyer, S. Rajappa, Sumit Kumar, M.A. Chinnasamy and Ambrish Kumar for the Respondents.=2007 AIR 1337, 2006(6 )Suppl.SCR219 , 2006(11 )SCC624 , 2006(9 )SCALE245 , 2006(12 )JT432
CASE NO.: Appeal (civil) 4123 of 2006 PETITIONER: I. Nelson & Anr. RESPONDENT: Kallayam Pastorate & Ors. DATE OF JUDGMENT: 14/09/2006 BENCH: S.B. Sinha & Dalveer Bhandari JUDGMENT: J U D G M E N T (Arising out of SLP (C) Nos. 26954-26969/2005) S.B. Sinha, J. Leave granted. The Indian Evangelical Lutheran Church (‘the Church’, … Continue reading
Income Tax Act, 1961 – Bengal Agricultural Income Tax Act, 1944 – s.8 – Tea – Composite business of growing and manufacturing tea – Income from – Taxability of – Held: Such income has to be assessed under 1961 Act – 40% of income assessed would be taxable under 1961 Act and 60% is treated as agricultural income and taxable under 1944 Act – Income Tax Rules, 1962 – r.8. The respondent-assessee was carrying on the composite business of growing and manufacturing tea. It was selling green tea leaves produced in the tea gardens which is agricultural produce and also manufacturing tea. A notice of demand was issued on assessee on the ground that the income from sale of green tea leaves was taxable as agriculture income under the Bengal Agricultural Income Tax Act, 1944. The assessee filed writ petition seeking cancellation of the notice of demand. The writ petition was disposed of by the Single Judge of High Court in terms of judgment of this Court in *Tata Tea Ltd case. The Division Bench of High Court while following the ratio of *Tata Tea Ltd. case directed the Assessing Officer to compute the tax on the income of assessee. It held that the income from `tea grown and manufactured’ should be assessed by the Assessing Officer under the Income Tax Act, 1961; that 40% of the income assessed shall be taxed under the 1961 Act and balance 60% shall be taxed under the 1944 Act by Agricultural Income Tax Officer on the basis of income assessed by the Assessing Officer under the 1961 Act; and the income derived from sale of green tea leaves is agricultural income and assessable under the 1944 Act. In appeal to this Court, assessee contended that the sale proceeds of green tea leaves should be treated incidental to business and its income should be computed under the provisions of the 1961 Act. =Disposing of the appeal, the Court HELD: 1.1. There is no dispute on the fact that from the income assessed, 60% is taxable by the State under the Bengal Agricultural Income Tax Act, 1944 and 40% is taxable by the Centre under the Income Tax Act, 1961. The object behind taxing the 60% and 40% share of the income assessed appears that there are common expenses on establishment and staff for two different activities that is tea grown and tea manufactured. There can be independent income from sale of green tea leaves and by sale of tea, that is, after processing of green tea leaves when green tea leaves become tea for use. Income from agriculture is taxable by the State and sale of tea after manufacturing is taxable by the Union of India as business income. To segregate income and expenses from two combined activities of assessee is not possible, but at the same time there cannot be two assessments of income by two different authorities. Therefore, there can be only one assessment of income from the tea business. [Paras 11, 12] [57-E-H, 58-A] 1.2 For the purpose of tax on agricultural income, the Agricultural Income Tax Officer will go by the assessment order made under the provisions of the 1961 Act and the contents of the assessment for the year made by the Assessing Officer under the 1961 Act shall be conclusive evidence of the contents of such order and he has to go by the assessment and tax only 60% income made under the assessment for the purpose of the 1944 Act. [Para 15] [59-E,F] 1.3 It is true that both rule 8 of the Income Tax Rules, 1962 and s.8 of the 1944 Act provide how the mixed income from the growing tea leaves and tea manufacturing can be taxed. Mixed income means the income derived by an assessee from the combined activities i.e. growing of tea leaves and manufacturing of tea. Therefore, for the purpose of computation of income under the 1961 Act, it should be the mixed income from `tea grown and manufactured’ by the assessee. [Para 19] [61-C,D,E] 1.4. If the income is by sale of green tea leaves by the assessee it cannot be called income assessable under the 1961 Act for the purpose of 40:60 share between the Centre and the State. In both the provisions i.e. rule 8 of the Income Tax Rules, 1962 and s.8 of the 1944 Act, the word used is income derived from the sale of `tea grown and manufactured’. The income from sale of green tea leaves is purely income from the agricultural product. There is no question of taxing it as incidental income of the assessee when there is a specific provision and authority to tax that income i.e. the State, under the 1944 Act. In this view of the matter, the agricultural income cannot be taxed under 1961 Act. [Paras 20, 21] [61-E,F,G] 2. It is also pertinent to mention that the Income Tax Officer has assessed the income of tea manufactured by the assessee from 1977-78 to 1980-81 to the tune of Rs.1,44,250/-, Rs.4,28,040/-, Rs.54,450/- and Rs.92,351/- respectively and income of the assessee from the sale of green tea leaves was more than Rs.10 lakhs in each accounting year (1977-78 and 1978-79). In this view of the matter, the income of the assessee from the sale of tea leaves can never be incidental to business. In a given case the assessee can process only 10% of green tea leaves and 90% of green tea leaves can be sold directly in the market. That income from sale of green tea leaves cannot be treated incidental to the business. In case the assessee directly sells the green tea leaves resulting into an income from agricultural products, it cannot be taken as incidental income to the business and whatever the income is derived from the sale of the green tea leaves can be assessed by the Agricultural Income Tax Officer under the 1944 Act. [Paras 22,23,24] [62-A,B,C,D,E] *Tata Tea Ltd. & Anr. v. State of West Bengal & Ors. (1988) Supp SCC 316 – relied on. 3. The Assessing Officer is directed to frame an assessment order in the case of the respondent assessee on the principle of law laid down by this Court in the case of *Tata Tea and followed by the Division Bench of the High Court in the impugned judgment, if not already made. [Paras 30, 31] [64-A-C] Parag P. Tripathi, ASG, Naveen Prakash, Shweta Garg, B.V. Balaram Das, H.K. Puri and Rajeev Sharma for the appearing Parties.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPEALLTE JURISDICTION CIVIL APPEAL NO.8284-8285 of 2002 Union of India & Another .. Appellants Versus Belgachi Tea Co. Ltd. & Others .. Respondents WITH CIVIL APPEAL No.8283 of 2002. JUDGMENT Dalveer Bhandari, J. 1. These appeals are directed against the judgment of the Division Bench of the … Continue reading
We recommend the Union of India to immediately consider and seriously deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments in the law of adverse possession.=whether the State, which is in charge of protection of life, liberty and property of the people can be permitted to grab the land and property of its own citizens under the banner of the plea of adverse possession?
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION PETITION FOR SPECIAL LEAVE TO APPEAL (CIVIL) NO. 28034/2011 (Arising out of CC 9038/2010) State of Haryana …Petitioner Versus Mukesh Kumar & Ors. …Respondents J U D G M E N T Dalveer Bhandari, J. 1. People are often astonished to learn that a trespasser … Continue reading
Hindu law: Hindu adoption-Valid adoption-Necessity of-Held: There should be an actual giving and taking ceremony-Performance of datta homm imperative to constitute valid adoption subject to exception-Adoption of daughter is invalid under Hindu law-Person adopted is to be male-On facts, natural heirs of a female, who is allegedly adopted by her uncle, restraining their predecessor’s natural brothers and sons from alienating the property on the ground that their predecessor inherited her uncle’s property on his death as she was adopted by her uncle-However, predecessor not being validly adopted daughter of her uncle nor adoption permissible in law, the female could claim interest in share of her natural father’s property which fell to his share on partition with his brothers. Code of Civil Procedure, 1908-Order 39, rules 1 and 2-Injunction-Conditions for grant of-Held: Court is to consider prima facie case, balance of convenience and irreparable injury-Plaintiff’s contention should be bonafide-Question to be tried must be serious issue and not merely triable-Conduct of both defendants and plaintiffs is relevant-Court to see whether plaintiffs have pre-varicated their stand from stage to stage-It would look into the documents produced in terms of Order 41, Rule 27-This court must not confine itself only to the questions raised before the courts below-It would consider questions of law, though raised for the first time-On facts, court erred in granting injunction restraining the party from alienating the property-Order 41, Rule 27. O and K were in joint possession of suit properties. O died in 1949. He had no issue and it is alleged that he adopted N, natural daughter of K during his life time. O had executed gift deed in favour of N showing her as daughter of K but under his guardianship. K died in 1961 leaving seven sons and daughter N. Respondent-plaintiffs are natural heirs of N. Respondents claimed that N being adopted daughter of O, inherited property on the death of O. Children of K, G and others and their sons are the appellants. A purported partition took place between K and his sons in 1954. N was not given any share. However, K transferred three properties in favour of N as a trustee, referring her to be the foster daughter of O and describing the said properties to be held in trust. According to the appellants, the joint family property devolved by survivorship to K; and that N during her life time, never claimed to be an adopted daughter and she did not have any interest in the joint family properties. Respondents filed suit for partition of the suit Schedule and allotment in their favour; and for permanent injunction to restrain the defendants from alienating the suit properties. Thereafter, amendment application was filed that since the parties belonged to Brahmo Samaj faith, N could claim as natural daughter of K; and that N was adopted when she was about three years old. Appellants filed an application for rejection of the plaint in terms of Order VII, Rule 11 CPC and the same was dismissed. Thereafter, application for injunction was filed and appellants were restrained from dealing with the properties. High Court then passed an interim order directing that no alienation would take place, save and except the share of the builders. The said order was modified directing that the development of the said property would be subject to restriction in regard to dealing therewith. Further, application for modification of the order was filed but the same was dismissed. Hence the present appeals. Appellants contended that the High Court erred in restraining the appellants from alienating the property; that the properties should be allowed to be utilized as the constructions thereof had been permitted to be completed; that the builders having been permitted to dispose of their share, only few flats remains to be sold, thus, having regard to the claim of the respondents, order of injunction may be confined to only 3 flats; that the property which was the subject matter of the other Civil Appeal being self-acquired and commercial property, the same may be allowed to be transferred subject to certain conditions; that N having admitted the nature of her interest, respondents could not take a stand contrary thereto or inconsistent therewith; that adoption of N by O was neither proved nor was permissible in law; and that the properties had been partitioned in 1954, and, thus, share of N would be only 1/64th. Respondents contended that the courts below having found that the respondents not only have a prima facie case but also balance of convenience lay in their favour, this Court should not exercise its discretionary jurisdiction; that the courts below took serious note of the conduct of the appellants insofar as they disposed of some properties in violation of the order of status quo passed by the court; that the question regarding illegality of adoption cannot be permitted to be raised for the first time before this Court; that the appellants having filed an application for rejection of the plaint in terms of Order VII, Rule 11 CPC, the same having been dismissed, they should not be permitted to raise the said contention once again; and that before the appellate court an interim order was passed on the basis of agreement between the parties, therefore, it is inequitable to allow the parties to take a different stand before this Court.
CASE NO.: Appeal (civil) 4101 of 2006 PETITIONER: M. Gurudas & Ors. RESPONDENT: Rasaranjan & Ors. DATE OF JUDGMENT: 13/09/2006 BENCH: S.B. Sinha & Dalveer Bhandari JUDGMENT: J U D G M E N T [Arising out of SLP (Civil) No. 12 of 2006] WITH CIVIL APPEAL NO. 4102 OF 2006 [Arising out of SLP … Continue reading
Dismissing the appeal, the Court HELD: In the facts of the instant case, no interference is called for. The inspection team, on the direction of the High Court, had thoroughly examined the entire matter and did not find any misappropriation of funds. Before the High Court, the Chief Secretary and the Finance Secretary had filed affidavits and gave details of the entire expenditure of Rs.3,40,57,582/-, and liability of the only unidentified amount of Rs.32,990/- could not be established against any person. The appellants could not point out any breach of the Sikkim Financial Rules, 1979 or misappropriation of funds by the respondents. The Government of Sikkim, Roads and Bridges Department had revised the Code and now Sikkim Public Works Code, 2009 has been introduced, wherein greater transparency has been introduced. [Paras 24, 28, 29, 30, 32 and 33] [356-B; 355-D; 356-D-F; 357- F-G] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1834 of 2002. From the Judgment & Order dated 19.10.2001 of the High Court of Sikkim at Gangtok in Civil Writ Petition No. 17 of 2001. K. Swami, Prabha Swami for the Appellants. J.L. Gupta, Harish Chandra, A. Mariarputham, Annam D.N. Rao, Neelam Jain, Shweta Verma, A.K. Sharma (for P. Parmeswaran), Aruna Mathur (for Arputham, Aruna & Co.), Ashok Mathur for the Respondents.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 1834 of 2002 All Sikkim Youth Association & Another …Appellants Versus H.R. Subba & Others …Respondents J U D G M E N T Dalveer Bhandari, J. 1. This appeal is directed against the judgment and order dated 19.10.2001 passed in Civil … Continue reading
Allowing the appeal, the Court HELD: 1. The Supreme Court over 50 years has been consistently observing that limited jurisdiction of the High Court under Article 227 of the Constitution of India cannot be exercised by interfering with the findings of fact and setting aside the judgments of the courts below on merits. The High Court, in the impugned judgment, has erred in interfering with the concurrent findings of fact of the authorities below under its limited jurisdiction under Article 227 of the Constitution. [Para 29 and 35] [185- G; 187-E] Nagendra Nath Bora and Another v. Commissioner of Hills Division and Appeals, Assam & Others 1958 SCR1240=AIR 1958 SC 398; Nibaran Chandra Bag v. Mahendra Nath Ghughu 1963 Suppl. SCR570= AIR 1963 SC 1895; Mohd. Yunus v. Mohd. Mustaqim & Others 1984 (1) SCR 211= (1983) 4 SCC 566; Laxmikant Revchand Bhojwani & Another v. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576; Rena Drego (Mrs.) v. Lalchand Soni & Others1998 (2) SCR 197=(1998) 3 SCC 341; Virendra Kashinath Ravat & Another v. Vinayak N. Joshi & Others 1998 (2) Suppl. SCR643= (1999) 1 SCC 47, relied on. 2.1. The High Court erroneously observed that “the authenticity of the decree passed by the court cannot be questioned. Therefore, the genuineness of the sale price has to be presumed.” This finding of the High Court cannot be sustained. It would have far reaching ramifications and consequences. If the genuineness of the sale price entered into by the buyer and the seller cannot be questioned, then in majority of the cases it is unlikely that the State would ever receive the stamp duty according to the circle rate or the collector rate. The approach of the High Court is totally unrealistic. [Para 36] [187-G-H; 188-A] 2.2. In order to ensure that there is no evasion of stamp duty, circle rates are fixed from time to time and the notification issued to that effect. The issuance of such notification has become imperative to arrest the tendency of evading the payment of actual stamp duty. It is a matter of common knowledge that usually the circle rate or the collector rate is lower than the prevalent actual market rate but to ensure registration of sale deeds at least at the circle rates or the collector rates such notifications are issued from time to time. [Para 39] [188-E, F] 2.3 It is not disputed that in the instant case the commercial plot of 788 sq. yards was valued by the circle rate at Rs.4,200 per sq. yard fixed by the Collector, meaning thereby that after the notification, no sale deed could be registered for an amount lesser than Rs.4,200/- per sq.yard. The High Court has not properly construed the observations of the District Collector to the effect that the suit was filed in the civil court with the intention to avoid tax and stamp duty inasmuch as the value of the property as per the circle rate was Rs.33,09,600, on which stamp duty to be paid was Rs.5,13,050/- whereas the stamp duty actually paid was only Rs.31,000/-, therefore stamp duty to the tune of Rs.4,82,050 was payable. This order was upheld by the Commissioner. The High Court while exercising its jurisdiction under Article 227 has set aside the orders passed by the authorities below without any basis or rationale. Apart from the jurisdiction, even what is factually stated in the order of the District Collector as upheld by the Commissioner, is unexceptionable and any interference was totally unwarranted. [Para 40-41] [189-B-C; D-E] 2.4. In the facts and circumstances of the case, the impugned judgment of the High Court cannot be sustained and is accordingly set aside, and the order passed by the District Collector, as upheld by the Commissioner, is restored. The respondent is directed to pay the balance stamp duty. [Para 42] [189-F, G] State of Punjab & Others v. Mohabir Singh etc.etc. 1995 (5) Suppl. SCR520= (1996) 1 SCC 609; R. Sai Bharathi v. J. Jayalalitha & Others 2003 (6) Suppl.SCR85= (2004) 2 SCC 9, cited. Case Law Reference: 1958 SCR1240 relied on para 23 1963 Suppl. SCR570 relied on para 24 1984 (1) SCR211 relied on para 25 (1995) 6 SCC 576 relied on para 26 1998 (2) SCR197 relied on para 27 1998 (2) Suppl. SCR643 relied on para 28 1995 (5) Suppl. SCR520 cited para 32 2003 (6) Suppl.SCR85 cited para 33 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2226 of 2010. From the Judgment & Order dated 4.2.2008 of the High Court of Punjab and Haryana at Chandigarh in CWP No. 12094 of 2007. Puneet Mittal, AAG, Naresh Bakshi, T.A. Mir and Ankur Aggarwal for the Appellants. Manoj Swarup, Devesh Kumar Tripathi, Ashok Anand and Ajay Kumar for the Respondent.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2226 OF 2010 [Arising out of Special Leave to Appeal (C) No.26684 of 2008] State of Haryana & Ors. … Appellants Versus Manoj Kumar … Respondent JUDGMENT Dalveer Bhandari, J. 1. Leave granted. 2. This appeal is directed against the judgment dated … Continue reading
provident fund- The respondent bank is under an obligation to pay provident fund to its employees in accordance with the provisions of statutory Scheme. The respondent bank cannot be compelled to pay the amount in excess of its statutory liability for all times to come just because the respondent bank formed its own trust and started paying provident fund in excess of its statutory liability for some time. The appellants are certainly entitled to provident fund according to statutory liability of the respondent bank. The respondent bank never discontinued its contribution towards provident fund according to the provisions of the statutory Scheme.
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2011 (Arising out of SLP (C) NO.1067 of 2009) Marathwada Gramin Bank Karamchari Sanghatana and Another …Appellants Versus Management of Marathwada Gramin Bank and Others …Respondents WITH CIVIL APPEAL NO. OF 2011 (Arising out of SLP(C) NO.1205 of 2009) Marathwada Regional … Continue reading
family settlements – relinquishment =Jamni inherited the estate of her husband Hari Ram on his death in the year 1954. She had undivided shares in Chak Nani and Chak Kaljer. By a family arrangement, Jamni had relinquished her share in Chak Kaljer and instead, she took the share of her brothers-in-law Kharia and Delu in Chak Nani. Thus, Jamni and Debku became full owner of the Chak Nani and consequently had full right to dispose of the said property at Chak Nani. They had sold the property (at Chak Nani) to the appellant herein. The property was sold for consideration and in good faith.
1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 432 OF 2002 HARI CHAND ROACH Appellant(s) :VERSUS: HEM CHAND AND ORS. Respondent(s) J U D G M E N T Dalveer Bhandari, J. 1. This appeal emanates from the judgment of the High Court of Himachal Pradesh at Shimla delivered … Continue reading
advocatemmmohan 