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1. these appeals have arisen from the impugned judgment and order dated 11. 5. 2007 passed by the high court of delhi in writ petition ( civil ) nos. 2529 of 1985 ; 889 of 1986 ; 988 of 1986 ; 2155 of 1987 ; 2645 of 1987 ; and 2747 of 1987, by which and whereunder, the high court has quashed the land acquisition proceedings in view of the fact that the objections filed by the respondents - tenure holders under section 5a of land acquisition act, 1894 ( hereinafter referred to as ` the act 1894 ), had not been considered by the statutory authorities in strict compliance of principles of natural justice and thus, the subsequent proceedings stood vitiated, relying on the main judgment and order of the same date passed in writ petition ( civil ) no. 424 of 1987 titled chatro devi v. union of india. 2. facts and circumstances giving rise to these appeals are that : a. the land of the respondents - tenure holders being survey no. 619 / 70, etc. admeasuring 50, 000 bighas situated in revenue village chhatarpur, stood notified under section 4 of the act 1894 on 25. 11. 1980 for public purposes, namely, the planned development of delhi and objections under section 5a were invited from the persons interested within 30 days of the said notification. b. respondents - persons interested, filed their objections under section 5a of the act 1894. however, without considering and disposing of the same, declaration under section 6 of the act 1894 was made on 7. 6. 1985. notices under sections 9 of the act 1894 were also issued on 30. 12. 1986 to the persons interested. it was at this stage that the tenure holders filed writ petitions before the high court challenging the acquisition proceedings contending that proceedings could not be continued without disposing of the objections filed by them under section 5a of the act 1894. admittedly, the award no. 15 / 1987 - 88 was made by the land acquisition collector on 5. 6. 1987. c. in respect of the land covered by the same notification under section 4 of the act 1894, a very large number of writ petitions had been filed. the said writ petitions filed on different grounds were decided by different benches at different points of time. so far as the present group of cases is concerned, the matter was heard at length and a division bench of the delhi high court examined the contentions raised on behalf of the tenure holders

/ persons interested which vide judgment and order dated 3. 3. 2005 held that the notification under section 6 of the act 1894 was within the period stipulated for the purpose after excluding the period during which the interim stay order passed by the high court remained into operation and where the objections have not been filed, the impugned declaration under section 6 of the act 1894 could not be assailed on the ground of invalidity of inquiry under section 5a of the act 1894. however, on the said issue in the cases where the objections had been filed by the tenure holders and they had been given personal hearing by one collector but the report was submitted by his successor i. e. another collector, the division bench differed in opinion whether the report could be held to be legal or not, mainly relying upon the constitution bench judgment of this court in gullapalli nageswara rao & ors. v. andhra pradesh state road transport corporation & anr., air 1959 sc 308 wherein it has categorically been held that the authority which hears the objectors must pass the order. in case an authority hears the objectors and demits the office or stands transferred, his successor should hear the parties afresh and not giving the opportunity of fresh hearing by the successor officer would amount to failure of principles of natural justice and his order would stand vitiated. d. in view thereof, the matter was referred to the third judge vide order dated 3. 3. 2005 and vide judgment and order dated 20. 12. 2006, the hon ble third judge held that in such a situation where objections had been filed and had been heard by one collector and the report had been submitted by another collector, the proceedings stood vitiated being in violation of principles of natural justice. e. in view of the majority opinion, as is evident from the order dated 11. 5. 2007, the proceedings in such an eventuality stood quashed by the impugned judgment and order. hence, these appeals. 3. shri p. p. malhotra, learned additional solicitor general, ms. geeta luthra and shri sanjay poddar, learned senior counsel, have addressed a large number of legal and factual issues and also submitted that the judgment and order of the high court are not sustainable in the eyes of law. therefore, the question quashing the land acquisition proceedings in such circumstances did not arise. more so, the commencement of the right to fair compensation and transparency in land acquisition, rehabilitation and resettlement act, 2013

( hereinafter referred to as the act 2013 ) would not take away the proceedings initiated under the act 1894 by operation of law as provided under section 24 of the act 2013. in the instant case, in case, the appeals succeed on the main ground as to whether the successor officer could submit the report on 5a objections there could be no prohibition for the appellants to proceed with the land acquisition proceedings initiated in 1980. the objections raised were vague and had been in respect of limitation and were not specific in nature. none of the writ petitioners had raised the issue about violation of principles of natural justice in the writ petitions, though some of them amended their writ petitions but at a subsequent stage. some of the writ petitions had been filed by persons who came into possession of the land subsequent to section 4 notification. 4. on the contrary, shri mukul rohatgi, shri shyam diwan and shri vinay bhasin, learned senior counsel appearing on behalf of the respondents, have vehemently opposed the appeals contending that in view of the fact that the acquisition proceedings stood quashed finally by the impugned judgment dated 11. 5. 2007 and a period of 7 years has lapsed and the possession is still with the tenure holders. in view of the act 2013 coming into force, the proceedings have lapsed by virtue of the provisions contained in section 24 of the said act. the issues raised herein on behalf of the union of india had not been raised before the high court. amendments were allowed by the high court in a very large number of writ petitions about violation of principles of natural justice i. e. the objections under section 5 - a were not disposed of in accordance with law. 5. we have considered the rival submissions made by the learned counsel for the parties and perused the record. 6. section 5 - a of the act 1894 was not there in the original statute. in j. e. d. ezra v. secy. of state for india ( 1902 - 1903 ) 7 cwn 249, the calcutta high court expressed its inability to grant relief to the owner of the property whose land was sought to be acquired without giving any opportunity of hearing observing that there was no provision in the act requiring observance of the principles of natural justice. it was subsequent to the said judgment that the act was amended incorporating section 5 - a w. e. f. 1. 1. 1924. the statement of objects and reasons for the said amendment provided that the original act

did not oblige the government to enquire into and consider any objection of the persons interested nor the act provided for right of hearing to the person whose interest stands adversely affected. 7. in nandeshwar prasad v. u. p. government, air 1964 sc 1217, this court dealt with the nature of objections under section 5 - a of the act 1894 observing as under : 8. the rules of natural justice have been ingrained in the scheme of section 5 - a of the act 1894 with a view to ensure that before any person is deprived of his land by way of compulsory acquisition, he must get an opportunity to oppose the decision of the state government and / or its agencies / instrumentalities to acquire the particular parcel of land. section 5 - a ( 2 ) of the act 1894, which represents statutory embodiment of the rule of audi alteram partem, gives an opportunity to the objector to make an endeavour to convince the collector that his land is not required for the public purpose specified in the notification issued under section 4 ( 1 ) of the act 1894 or that there are other valid reasons for not acquiring the same. thus, section 5 - a of the act 1894 embodies a very just and wholesome principle that a person whose property is being or is intended to be acquired should have a proper and reasonable opportunity of persuading the authorities concerned that acquisition of the property belonging to that person should not be made. on the consideration of the said objection, the collector is required to make a report. the state government is then required to apply mind to the report of the collector and take final decision on the objections filed by the landowners and other interested persons. then and then only, a declaration can be made under section 6 ( 1 ) of the act 1894. 9. therefore, section 5 - a of the act 1894 confers a valuable right in favour of a person whose lands are sought to be acquired. it is trite that hearing given to a person must be an effective one and not a mere formality. formation of opinion as regard the public purpose as also suitability thereof must be preceded by application of mind having due regard to the relevant factors and rejection of irrelevant ones. the state in its decision making process must not commit any misdirection in law. it is also not in dispute that section 5 - a of the act, 1894 confers a valuable important right and having regard to the provisions, contained in article 300a of the constitution of india has been

held to be akin to a fundamental right. 10. thus, the limited right given to an owner / person interested under section 5 - a of the act, 1894 to object to the acquisition proceedings is not an empty formality and is a substantive right, which can be taken away only for good and valid reason and within the limitations prescribed under section 17 ( 4 ) of the act, 1894. 11. the land acquisition collector is duty - bound to objectively consider the arguments advanced by the objector and make recommendations, duly supported by brief reasons, as to why the particular piece of land should or should not be acquired and whether the plea put forward by the objector merits acceptance. in other words, the recommendations made by the land acquisition collector should reflect objective application of mind to the entire record including the objections filed by the interested persons. ( see : munshi singh & ors. v. union of india, air 1973 sc 1150 ; union of india & ors. v. mukesh hans, air 2004 sc 4307 ; hindustan petroleum corporation ltd v. darius shahpur chenai and ors., air 2005 sc 3520 ; anand singh & anr v. state of u. p. & ors., ( 2010 ) 11 scc 242 ; dev sharan v. state of u. p., ( 2011 ) 4 scc 769 ; raghbir singh sehrawat v. state of haryana, ( 2012 ) 1 scc 792 ; usha stud and agricultural farms ( p ) ltd. v. state of haryana, ( 2013 ) 4 scc 210 ; and women s education trust v. state of haryana, ( 2013 ) 8 scc 99 ). 12. this court in gullapalli nageswara rao ( supra ), held : 13. this court in rasid javed & ors. v. state of u. p. & anr., air 2010 sc 2275 following the judgment in gullapalli ( supra ), supra held that a person who hears must decide and that divided responsibility is destructive of the concept of hearing is too fundamental a proposition to be doubted. 14. a similar view has been re - iterated by this court in automotive tyre manufacturers association v. designated authority & ors., ( 2011 ) 2 scc 258, wherein this court dealt with a case wherein the designated authority ( da ) under the relevant statute passed the final order on the material

collected by his predecessor in office who had also accorded the hearing to the parties concerned. this court held that the order stood vitiated as it offended the basic principles of natural justice. 15. in view of the above, the law on the issue can be summarised to the effect that the very person / officer, who accords the hearing to the objector must also submit the report / take decision on the objection and in case his successor decides the case without giving a fresh hearing, the order would stand vitiated having been passed in violation of the principles of natural justice. 16. before proceeding further, it is desirable to refer to the relevant statutory provisions of the act 2013 which reads as : 17. the provisions of the act 2013 referred to hereinabove have been considered by a three judge bench of this court in pune municipal corporation and anr. v. harakchand misirimal solanki and ors., ( 2014 ) 3 scc 183. in the said case, the tenure - holders had challenged the acquisition proceedings before the bombay high court by filing nine writ petitions, although two of such writ petitions had been filed before making the award and seven had been filed after the award. the land acquisition proceedings had been challenged on various grounds. the high court allowed the writ petitions and quashed the land acquisition proceedings and issued certain directions including restoration of possession as in the said case the possession had been taken from the tenure - holders. this court in the appeal filed by the authority for whose benefit the land had been sought to be acquired, and who had been handed over the possession as the land vested in the state, approached this court but the court did not enter into the merit regarding the correctness of the judgment impugned therein rather held that it was not so necessary to deal with the correctness of the judgment in view of the provisions of the act 2013 which provide for re - compulsory acquisition of land from the very beginning. the court held as under : 18. the judgment of bharat kumar v. state of haryana & ors, 2014 ( 3 ) scale 393 was a reverse case wherein the land owner had lost before the high court. the court held : 19. in order to clarify the statutory provisions of the act 2013 with respect to such lapsing, the government of india, ministry of urban development, delhi division, came up with a circular dated 14. 3. 2014 wherein on the basis of the legal opinion of the solicitor general of india, it has been clarified as under : since this

legislation has been passed with the objective of benefiting the land - losers, this interpretation is consistent with that objective and also added as a matter of abundant caution that the period spent in litigation challenging an award cannot be excluded for the purpose of determining whether the period of five years has elapsed or not. if the possession has not been taken or compensation has not been paid due to the challenge to the land acquisition proceedings, the pendente lite period will be included to determine the five year period and including such period if the award was made five years or more prior to the commencement of the act, then the said acquisition proceedings will be deemed to have elapsed and fresh proceedings, if so desired, will have to be initiated in accordance with the new act. the objects and reasons of the act 2013 and particularly clause 18 thereof fortify the view taken by this court in the judgments referred to hereinabove. clause 18 thereof reads as under : 20. however, the aforesaid appeals have to be decided in the light of above settled legal propositions. the admitted facts of the case remains that the respondents - tenure holders had filed objections under section 5a of the act 1894 as admitted in the affidavit filed by smt. usha chaturvedi, deputy secretary ( land acquisition ), land and building department, vikas bhawan, new delhi, filed in january 2014 before this court. the award no. 15 / 87 - 88 had been made on 5. 6. 1987 and possession has not been taken till date though compensation has been deposited with the revenue department, which cannot be termed as ` deemed payment ` as has been held in case of pune municipal corporation & anr. ( supra ). 21. therefore, the appeals are liable to be dismissed in terms of the judgments referred to hereinabove. however, shri p. p. malhotra, learned asg, has insisted that the matters should also be decided on merit by examining the correctness of the judgment and order impugned. 22. the facts are not in dispute. a huge chunk of land covering 11 villages was notified under section 4 of the act 1894 in 1980. a large number of people had filed objections under section 5 - a of the act 1894 and it has been admitted on oath by the officer of the appellant department that in almost all these appeals, the tenure holders or their processor in interest had filed objections under section 5 - a of the act 1894. this is also not in dispute that most of the

objections were heard by one land acquisition collector and after his transfer, the report had been submitted by his successor. in balak ram gupta v. union of india, ( 117 ) 2005 dlt 753 ( fb ), full bench of high court of delhi quashed the land acquisition proceedings in the said case exclusively on the ground that objections filed by the petitioner therein had been heard by one land acquisition collector, however, the report was submitted by another. the land covered in these instant appeals stand covered by the same notification / declaration, same award and the objections had been dealt with by the same land acquisition collector and the report had been submitted by the same successor. 23. admittedly, the appellants accepted that judgment and the same attained finality as the said judgment was never challenged by filing any s. l. p. before this court. in the light of aforesaid judgment, a large number of writ petitions had been allowed and the land acquisition proceedings arising out of the same notification / declaration had been quashed. subsequently, in abhey ram & ors. v. union of india & ors., air 1997 sc 2564, this court dealt with the same issue arising out of the same acquisition proceedings and held that the judgment of quashing the acquisition proceedings would apply only to the land of those persons who had challenged acquisition proceedings and not to all the land covered by the said notification / declaration. the appellants had been under the impression that the judgment delivered by the full bench in balak ram gupta ( supra ), laid down the law applicable to other persons also whose land stood covered by the said notification / declaration. 24. in delhi administration v. gurdip singh uban & ors., ( 2000 ) 7 scc 296, this court again dealt with the same acquisition proceedings and observed that if a tenure holder had not filed objections under section 5 - a of the act 1894, he cannot challenge the acquisition proceedings on the ground that objections had not been disposed of in accordance with law. 25. in om parkash v. union of india & ors., air 2010 sc 1068, this court dealt with the cases arising out of the same acquisition proceedings, however, this batch of matters had expressly been separated from that batch and in those cases, the acquisition proceedings were not quashed on the ground that the acquisition proceedings had been challenged at a belated stage. 26. in the present batch of writ petitions filed before the high court, the matter came to be heard by a

division bench. one of the hon ble judges vide his separate judgment was of the opinion that the proceedings would not lapse on the ground that the declaration under section 6 of the act 1894 had been made after a period of more than three years for the reason that it was covered by sub - section ( 2 ) i. e. on account of various stay orders passed by different courts at different times in relations to the said proceedings. further, though principles of natural justice is an inbuilt element of procedure but per se violation of these principles would not ipso facto vitiate the proceedings unless any prejudice is shown to have been caused to the parties, which was not the pleaded case of the objectors. also judicial review of administrative decision was impressible except on very limited grounds i. e. absence of any material forming the basis of decision making and the courts could not go into the question as to what material weighed before the authority. the other hon ble judge comprising the bench vide his separate and dissenting judgment was of the opinion that the decision in balak ram gupta ( supra ) was still a good law. on the issue as to validity of the inquiry under section 5 - a of the act 1894, his lordship was of the opinion that inquiry under section 5 - a of the act 1894 was a substantial right and could not be taken away as a side wind. relying on earlier judgments of the high court of delhi, the hon ble judge was of the opinion that a report on objections should be made by the same collector who had the opportunity to hear such objections and any deviation would vitiate the further proceedings. as the hon ble judges differed, the matter was referred to a third hon ble judge. 27. in pursuance to the above reference, the matter came up before the third hon ble judge, who delivered the judgment cited as 137 ( 2007 ) dlt 14. relying on the decision in gullapalli nageswara rao ( supra ), the court was of the opinion that where the objections were heard by one collector but the report was made by another, such procedure was not in strict compliance of requirements of section 5 - a of the act 1894. the issue of prejudice caused to a party in case of violation of principles of natural justice arises in cases dealing with un - codified procedure. the mandatory language of section 5 - a of the act 1894 made it essential that the collector who hears the land owner must submit the report and, hence, no

question of prejudice could be said to be applicable in determining the violation of principles of natural justice. 28. in the instant cases, there had been challenge to the acquisition proceedings on various grounds including the manner in which objections under section 5 - a of the act 1894 had been decided. in some cases, the high court allowed amendment to the writ petitions and such order had never been challenged by the appellants. in a case where on the basis of submissions advanced in the court on behalf of the parties, the court summons the original record to find out the truth, pleadings remain insignificant. in the instant cases, the high court was satisfied after examining the original record that objections had been dealt with in flagrant violation of law and in such a fact - situation, the prejudice doctrine for non - observation thereof would not be attracted. we do not see any cogent reason to differ from such a view. no judgment had been brought to our notice on the basis of which it can be held that the decision of the constitution bench of this court in gullapalli nageswara rao ( supra ) is not a good law. 29. it is evident from the record that in respect of a major chunk of land which stood covered under the same section 4 notification, the land acquisition proceedings had been quashed in a batch of 74 writ petitions having been filed before the delhi high court and the appellants, for the reasons best known to it, did not challenge the same and resultantly, the same has attained finality. for about a decade following the said judgment in balak ram gupta v. union of india & ors., 37 ( 1989 ) dlt 150, proceedings in other cases have also been quashed and those decisions have not been challenged and have thus, also attained finality. a large number of cases filed before this court and particularly slp ( c ) nos. 208, 211 & 212 of 2008 stood dismissed vide order dated 10. 12. 2008, as the petitioners did not take steps to serve the respondents therein as is evident from the office report dated 25. 6. 2013. in such a fact scenario, where in respect of major chunk of land, the land acquisition proceedings had been quashed long back and which has attained finality, it is beyond our comprehension as to whether the scheme of planned development of delhi can be executed at such a belated stage in view of the fact that vacant land in continuous stretch may not be available. 30. in view of above, we do

not see any force in these appeals even on merit and the same are liable to be dismissed. in view of the findings and particularly in view of the interpretations given to section 24 ( 2 ) of the act 2013 in the judgments referred to herein above, it is not necessary to entertain any other ground whatsoever at the behest of the appellants. thus, the appeals are devoid of any merit and are dismissed. no order as to costs............ j. ( dr. b. s. chauhan )....... j. ( j. chelameswar )....... j. ( m. y. eqbal ) new delhi, may 7, 2014 reportable in the supreme court of india civil appellate jurisdiction civil appeal nos. 1831 - 1836 of 2009 union of india & ors. ( arising out of s. l. p. ( c ) nos. 24305 - 24309 of 2007 ) union of india & ors. ( arising out of s. l. p. ( c ) nos. 208 - 213 of 2008 ) union of india & ors. ( arising out of s. l. p. ( c ) nos. 1085 - 1088 of 2008 ) union of india & ors. ( arising out of s. l. p. ( c ) nos. 2533 - 2535 of 2008 ) 3 union of india & ors. 1. the facts and issue involved in the abovesaid appeals are identical and have to be decided in terms of our judgment passed today in civil appeal nos. 5478 - 5483 of 2014. 2. the appeals are dismissed in terms thereof. no order as to costs............ j. ( dr. b. s. chauhan )....... j. ( j. chelameswar )....... j. ( m. y. eqbal ) new delhi, may 7, 2014 reportable in the supreme court of india civil appellate jurisdiction civil appeal no. 4374 of 2009 union of india & ors. in this case the facts are the same as contained in civil appeal nos. 5478 - 5483 of 2014, however, it may be mentioned herein that shrimati geeta devi, the respondent, is the subsequent purchaser of the land sought to be acquired under section 4 of the land

acquisition act, 1894 ( hereinafter referred to as ` the act 1894 ) and the original tenure holder had filed objections under section 5a of the act 1894, which have not been considered. the proceedings in this respect also had been quashed and admittedly, the actual and physical 2 possession of the land is with the respondent and as the proceedings had been quashed, the award had been made in 1987 - 1988. thus, in substance the result would be the same as in civil appeal nos. 5478 - 5483 of 2014. the appeal is dismissed in terms of civil appeal nos. 5478 - 5483 of 2014. no order as to costs......... j ( dr. b. s. chauhan )....... j. ( j. chelameswar )....... j. ( m. y. eqbal ) new delhi, may 7, 2014 reportable in the supreme court of india civil appellate jurisdiction civil appeal no. 1579 of 2010 vinod kapur & ors.. 1. this appeal has been preferred against the impugned judgment and order dated 17. 12. 2004 passed by the high court of delhi in civil writ petition no. 745 of 1987 and impugned judgment and order dated 27. 7. 2007 passed in review petition no. 328 of 2005 filed by the appellant wherein the court held that the declaration under section 6 of the land acquisition 2 act, 1894 ( hereinafter referred to as ` the act 1894 ) was made within the limitation prescribed under the act. 2. the facts and circumstances which have arisen in this appeal are that the land, the subject matter of the appeal, stood notified under section 4 of the act 1894 on 25. 11. 1980. the other persons whose land had also been acquired by the same notification had challenged the validity of the notification under section 4 of act 1894 by filing the writ petitions and its validity was upheld by the judgment and order dated 15. 11. 1983. it was during the pendency of the acquisition proceedings that the present appellant had purchased the land vide registered sale deeds dated 6. 5. 1985 and 24. 5. 1985. in respect of the same land, the land acquisition collector submitted a report on 4. 6. 1985 on the objections made under section 5a of the act 1894 by the predecessor - in - interest and the same was accepted by the lt. governor of delhi and the declaration under section 6 of the act 1894 was issued

on 7. 6. 1985. in the year 3 1987 - 1988, the land acquisition officer made an award in respect of the land. 3. in respect of the same land covered by the same notification, various orders in various litigations pending before the high court had been passed. the writ petition filed by the present appellant was dismissed vide impugned judgment and order dated 17. 12. 2004. 4. in view of the fact that the other land covered by the same notification and declaration had been the subject matter of various other writ petitions and particularly, the land belonging to one geeta devi, the respondent in civil appeal no. 4374 of 2009, the matter remained pending, thus, review petition etc. had been filed, which was dismissed on 27. 7. 2007. 5. it is evident from the orders passed by the high court that it had granted stay of dispossession during the pendency of the writ petition as well as the review petition, though no interim order has been passed by this court. the respondent did not take possession of the land in dispute though award had 4 been made in the year 1987 - 1988, and the high court had decided against the appellant in the year 2007. thus, a period of 7 years has lapsed without any stay of proceedings and yet no action has been taken by the respondents in pursuance to the award. 6. however, keeping in view the decision rendered in c. a. nos. 5478 - 5483 of 2014, this appeal is allowed in terms thereof. no order as to costs....... j. ( dr. b. s. chauhan )........ j. ( j. chelameswar )....... j. ( m. y. eqbal ) new delhi, may 7, 2014 - - - - - - - - - - - - - - - - - - - - - - -

a. k. sikri, j. 1. the present special leave petition has been preferred against the impugned judgment / final order dated 8. 10. 2013 passed by the high court of punjab and haryana at chandigarh in criminal miscellaneous petition no. 27343 / 2013. it was a petition under section 482 of the code of criminal procedure ( hereinafter referred to as the code ) for quashing of fir no. 121 / 14. 7. 2010 registered under sections 307 / 324 / 323 / 34, ipc, on the basis of compromise dated 22. 7. 2013 entered into between the petitioners ( who are accused in the said fir ) and respondent no. 2 ( who is the complainant ). the high court has refused to exercise its extraordinary discretion invoking the provisions of section 482 of the code on the ground that four injuries were suffered by the complainant and as per the opinion of the doctor, injury no. 3 were serious in nature. the high court, thus, refused to accept the compromise entered into between the parties, the effect whereof would be that the petitioners would face trial in the said fir. 2. leave granted. 3. we have heard counsel for the parties at length. 4. it may be stated at the outset that the petitioners herein, who are three in number, have been charged under various provisions of the ipc including for committing offence punishable under section 307, ipc i. e. attempt to commit murder. fir no. 121 / 14. 7. 2010 was registered. in the aforesaid fir, the allegations against the petitioners are that on 9. 7. 2010 at 7. 00 a. m. while respondent no. 2 was going on his motorcycle to bring diesel from village lapoke, jasbir singh, narinder singh both sons of baldev singh and baldev singh son of lakha singh attacked him and injured him. respondent no. 2 was admitted in shri guru nanak dev hospital, amritsar. after examination the doctor found four injuries on his person. injury no. 1 to 3 are with sharp edged weapons and injury no. 4 is simple. from the statement of injured and mlr s report, an fir under sections 323 / 324 / 34 ipc was registered. after x - ray report relating to injury no. 3, section 307 ipc was added in the fir5. after the completion of investigation, challan has been presented in the court against the petitioners and charges have also been framed. now the case is pending before the ld.

trial court, amritsar, for evidence. 6. during the pendency of trial proceedings, the matter has been compromised between the petitioners as well as the private respondent with the intervention of the panchayat on 12. 07. 2013. it is clear from the above that three years after the incident, the parties compromised the matter with intervention of the panchayat of the village. 7. it is on the basis of this compromise, the petitioners moved aforesaid criminal petition under section 482 of the code for quashing of the said fir. as per the petitioners, the parties have settled the matter, as they have decided to keep harmony between them to enable them to live with peace and love. the compromise records that they have no grudge against each other and the complainant has specifically agreed that he has no objection if the fir in question is quashed. further, both the parties have undertaken not to indulge in any litigation against each other and withdraw all the complaints pending between the parties before the court. as they do not intend to proceed with any criminal case against each other, on that basis the submission of the petitioners before the high court was that the continuance of the criminal proceedings in the aforesaid fir will be a futile exercise and mere wastage of precious time of the court as well as investigating agencies. 8. the aforesaid submission, however, did not impress the high court as the medical report depicts the injuries to be of grievous nature. the question for consideration, in these circumstances, is as to whether the court should have accepted the compromise arrived at between the parties and quash the fir as well as criminal proceedings pending against the petitioner. 9. the ld. counsel for the state has supported the aforesaid verdict of the high court arguing that since offence under section 307 is non - compoundable, the respondents could not have been acquitted only because of the reason that there was a compromise / settlement between the parties. in support, the learned counsel for the respondent - state has relied upon the judgment of this court in the case of rajendra harakchand bhandari vs. state of maharashtra ( 2011 ) 13 scc 311 wherein this court held that since offence under section 307 is not compoundable, even when the parties had settled the matter, compounding of the offence was out of question. said settlement along with other extenuating circumstances was only taken as the ground for reduction of the sentence in the following manner : 10. the learned counsel for the appellant, on the other

hand, submitted that merely because an offence is non - compoundable under section 320 of the code would not mean that the high court is denuded of its power to quash the proceedings in exercising its jurisdiction under section 482 of the cr. p. c. he argued that section 320 ( 9 ) of the code cannot limit or affect the power of the high court under section 482 of the cr. p. c. such a power is recognized by the supreme court in catena of judgments. he further submitted that having regard to the circumstances in the present case where the fight had occurred on the spot in the heat of the moment inasmuch as both sides were verbally fighting when the petitioners had struck the victim, this assault was more of a crime against the individual than against the society at large. he further submitted that this court in dimpey gujral v. union territory through administrator 2012 air scw 5333 had quashed the fir registered under sections 147, 148, 149, 323, 307, 452 and 506 of the ipc. 11. we find that there are cases where the power of the high court under section 482 of the code to quash the proceedings in those offences which are uncompoundable has been recognized. the only difference is that under section 320 ( 1 ) of the code, no permission is required from the court in those cases which are compoundable though the court has discretionary power to refuse to compound the offence. however, compounding under section 320 ( 1 ) of the code is permissible only in minor offences or in non - serious offences. likewise, when the parties reach settlement in respect of offences enumerated in section 320 ( 2 ) of the code, compounding is permissible but it requires the approval of the court. in so far as serious offences are concerned, quashing of criminal proceedings upon compromise is within the discretionary powers of the high court. in such cases, the power is exercised under section 482 of the code and proceedings are quashed. contours of these powers were described by this court in b. s. joshi vs. state of haryana ( 2003 ) 4 scc 675 which has been followed and further explained / elaborated in so many cases thereafter, which are taken note of in the discussion that follows hereinafter. 12. at the same time, one has to keep in mind the subtle distinction between the power of compounding of offences given to court under section 320 of the code and quashing of criminal proceedings by the high court in exercise of its inherent jurisdiction conferred upon it under section 482 of

the code. once, it is found that compounding is permissible only if a particular offence is covered by the provisions of section 320 of the code and the court in such cases is guided solitary and squarely by the compromise between the parties, in so far as power of quashing under section 482 of the code is concerned, it is guided by the material on record as to whether the ends of justice would justify such exercise of power, although the ultimate consequence may be acquittal or dismissal of indictment. such a distinction is lucidly explained by a three - judge bench of this court in gian singh vs. state of punjab & anr. ( 2012 ) 10 scc 303. justice lodha, speaking for the court, explained the difference between the two provisions in the following manner : 13. apart from narrating the interplay of section 320 and section 482 of the code in the manner aforesaid, the court also described the extent of power under section 482 of the code in quashing the criminal proceedings in those cases where the parties had settled the matter although the offences are not compoundable. in the first instance it was emphasized that the power under sec. 482 of the code is not to be resorted to, if there is specific provision in the code for redressal of the grievance of an aggrieved party. it should be exercised very sparingly and should not be exercised as against the express bar of law engrafted in any other provision of the code. the court also highlighted that in different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. formation of opinion by the high court before it exercises inherent power under section 482 on either of the twin objectives, ( i ) to prevent abuse of the process of any court, or ( ii ) to secure the ends of justice, is a sine qua non. 14. as to under what circumstances the criminal proceedings in a non - compoundable case be quashed when there is a settlement between the parties, the court provided the following guidelines : and - fast category can be prescribed. thereafter, the court summed up the legal position in the following words : 15. the court was categorical that in respect of serious offences or other offences of mental depravity or offence of merely dacoity under special statute, like the prevention of corruption act or the offences committed by public servant while working in that capacity. the mere settlement between the parties would not be a ground to quash the proceedings by the high court and inasmuch as settlement of such heinous crime cannot

have imprimatur of the court. 16. the question is as to whether offence under section 307 ipc falls within the aforesaid parameters. first limb of this question is to reflect on the nature of the offence. the charge against the accused in such cases is that he had attempted to take the life of another person ( victim ). on this touchstone, should we treat it a crime of serious nature so as to fall in the category of heinous crime, is the poser. 17. finding an answer to this question becomes imperative as the philosophy and jurisprudence of sentencing is based thereupon. if it is heinous crime of serious nature then it has to be treated as a crime against the society and not against the individual alone. then it becomes the solemn duty of the state to punish the crime doer. even if there is a settlement / compromise between the perpetrator of crime and the victim, that is of no consequence. law prohibits certain acts and / or conduct and treats them as offences. any person committing those acts is subject to penal consequences which may be of various kind. mostly, punishment provided for committing offences is either imprisonment or monetary fine or both. imprisonment can be rigorous or simple in nature. why those persons who commit offences are subjected to such penal consequences? there are many philosophies behind such sentencing justifying these penal consequences. the philosophical / jurisprudential justification can be retribution, incapacitation, specific deterrence, general deterrence, rehabilitation, or restoration. any of the above or a combination thereof can be the goal of sentencing. whereas in various countries, sentencing guidelines are provided, statutorily or otherwise, which may guide judges for awarding specific sentence, in india we do not have any such sentencing policy till date. the prevalence of such guidelines may not only aim at achieving consistencies in awarding sentences in different cases, such guidelines normally prescribe the sentencing policy as well namely whether the purpose of awarding punishment in a particular case is more of a deterrence or retribution or rehabilitation etc. 18. in the absence of such guidelines in india, courts go by their own perception about the philosophy behind the prescription of certain specified penal consequences for particular nature of crime. for some deterrence and / or vengeance becomes more important whereas another judge may be more influenced by rehabilitation or restoration as the goal of sentencing. sometimes, it would be a combination of both which would weigh in the mind of the court in awarding a particular sentence. however, that may be question of quantum. what follows

from the discussion behind the purpose of sentencing is that if a particular crime is to be treated as crime against the society and / or heinous crime, then the deterrence theory as a rationale for punishing the offender becomes more relevant, to be applied in such cases. therefore, in respect of such offences which are treated against the society, it becomes the duty of the state to punish the offender. thus, even when there is a settlement between the offender and the victim, their will would not prevail as in such cases the matter is in public domain. society demands that the individual offender should be punished in order to deter other effectively as it amounts to greatest good of the greatest number of persons in a society. it is in this context that we have to understand the scheme / philosophy behind section 307 of the code. 19. we would like to expand this principle in some more detail. we find, in practice and in reality, after recording the conviction and while awarding the sentence / punishment the court is generally governed by any or all or combination of the aforesaid factors. sometimes, it is the deterrence theory which prevails in the minds of the court, particularly in those cases where the crimes committed are heinous in nature or depicts depravity, or lack morality. at times it is to satisfy the element of emotion in law and retribution / vengeance becomes the guiding factor. in any case, it cannot be denied that the purpose of punishment by law is deterrence, constrained by considerations of justice. what, then, is the role of mercy, forgiveness and compassion in law? these are by no means comfortable questions and even the answers may not be comforting. there may be certain cases which are too obvious namely cases involving heinous crime with element of criminality against the society and not parties inter - se. in such cases, the deterrence as purpose of punishment becomes paramount and even if the victim or his relatives have shown the virtue and gentility, agreeing to forgive the culprit, compassion of that private party would not move the court in accepting the same as larger and more important public policy of showing the iron hand of law to the wrongdoers, to reduce the commission of such offences, is more important. cases of murder, rape, or other sexual offences etc. would clearly fall in this category. after all, justice requires long term vision. on the other hand, there may be, offences falling in the category where

correctional objective of criminal law would have to be given more weightage in contrast with deterrence philosophy. punishment, whatever else may be, must be fair and conducive to good rather than further evil. if in a particular case the court is of the opinion that the settlement between the parties would lead to more good ; better relations between them ; would prevent further occurrence of such encounters between the parties, it may hold settlement to be on a better pedestal. it is a delicate balance between the two inflicting interests which is to be achieved by the court after examining all these parameters and then deciding as to which course of action it should take in a particular case. 20. we may comment, at this stage, that in so far as the judgment in the case of bhandari ( supra ) is concerned, undoubtedly this court observed that since offence under section 307 is not compoundable in terms of section 320 ( 9 ) of the cr. p. c., compounding of the offence was out of question. however, apart from this observation, this aspect is not discussed in detail. moreover, on reading para 12 of the said judgment, it is clear that one finds that counsel for the appellant in that case had not contested the conviction of the appellant for the offence under section 307 ipc, but had mainly pleaded for reduction of sentence by projecting mitigating circumstances. 21. however, we have some other cases decided by this court commenting upon the nature of offence under section 307 of ipc. in dimpey gujral case ( supra ), fir was lodged under sections 147, 148, 149, 323, 307, 552 and 506 of the ipc. the matter was investigated and final report was presented to the court under section 173 of the cr. p. c. the trial court had even framed the charges. at that stage, settlement was arrived at between parties. the court accepted the settlement and quashed the proceedings, relying upon the earlier judgment of this court in gian singh vs. state of punjab & anr. 2012 air scw 5333 wherein the court had observed that inherent powers under section 482 of the code are of wide plentitude with no statutory limitation and the guiding factors are : ( 1 ) to secure the needs of justice, or ( 2 ) to prevent abuse of process of the court. while doing so, commenting upon the offences stated in the fir, the court observed : 22. on the other hand, we have few judgments wherein this court refused to quash

the proceedings in fir registered under section 307 ipc etc. on the ground that offence under section 307 was of serious nature and would fall in the category of heinous crime. in the case of shiji vs. radhika & anr. ( 2011 ) 10 scc 705 the court quashed the proceedings relating to an offence under section 354 ipc with the following observations : 23. in a recent judgment in the case of state of rajasthan vs. shambhu kewat & ors. 2013 ( 14 ) scale 235, this very bench of the court was faced with the situation where the high court had accepted the settlement between the parties in an offence under section 307 read with section 34 ipc and set the accused at large by acquitting them. the settlement was arrived at during the pendency of appeal before the high court against the order of conviction and sentence of the sessions judge holding the accused persons guilty of the offence under section307 / 34 ipc. some earlier cases of compounding of offence under section 307 ipc were taken note of, noticing under certain circumstances, the court had approved the compounding whereas in certain other cases such a course of action was not accepted. in that case, this court took the view that high court was not justified in accepting the compromise and setting aside the conviction. while doing so, following discussion ensued : 24. thus, we find that in certain circumstances, this court has approved the quashing of proceedings under section 307, ipc whereas in some other cases, it is held that as the offence is of serious nature such proceedings cannot be quashed. though in each of the aforesaid cases the view taken by this court may be justified on its own facts, at the same time this court owes an explanation as to why two different approaches are adopted in various cases. the law declared by this court in the form of judgments becomes binding precedent for the high courts and the subordinate courts, to follow under article 141 of the constitution of india. stare decisis is the fundamental principle of judicial decision making which requires certainty too in law so that in a given set of facts the course of action which law shall take is discernable and predictable. unless that is achieved, the very doctrine of stare decisis will lose its significance. the related objective of the doctrine of stare decisis is to put a curb on the personal preferences and priors of individual judges. in a way, it achieves equality of treatment as well, inasmuch as two different persons

faced with similar circumstances would be given identical treatment at the hands of law. it has, therefore, support from the human sense of justice as well. the force of precedent in the law is heightened, in the words of karl llewellyn, by that curious, almost universal sense of justice which urges that all men are to be treated alike in like circumstances. 25. as there is a close relation between the equality and justice, it should be clearly discernible as to how the two prosecutions under section 307 ipc are different in nature and therefore are given different treatment. with this ideal objective in mind, we are proceeding to discuss the subject at length. it is for this reason we deem it appropriate to lay down some distinct, definite and clear guidelines which can be kept in mind by the high courts to take a view as to under what circumstances it should accept the settlement between the parties and quash the proceedings and under what circumstances it should refrain from doing so. we make it clear that though there would be a general discussion in this behalf as well, the matter is examined in the context of offences under section 307 ipc. 26. the two rival parties have amicably settled the disputes between themselves and buried the hatchet. not only this, they say that since they are neighbours, they want to live like good neighbours and that was the reason for restoring friendly ties. in such a scenario, should the court give its imprimatur to such a settlement. the answer depends on various incidental aspects which need serious discourse. the legislators has categorically recognized that those offences which are covered by the provisions of section 320 of the code are concededly those not only do not fall within the category of heinous crime but also which are personal between the parties. therefore, this provision recognizes whereas there is a compromise between the parties the court is to act at the said compromise and quash the proceedings. however, even in respect of such offences not covered within the four corners of section 320 of the code, high court is given power under section 482 of the code to accept the compromise between the parties and quash the proceedings. the guiding factor is as to whether the ends of justice would justify such exercise of power, both the ultimate consequences may be acquittal or dismissal of indictment. this is so recognized in various judgments taken note of above. 27. in the case of dimpey gujral ( supra ), observations of this court to the effect that offences involved in that case were not offences against the society. it included charge

under section 307 ipc as well. however, apart from stating so, there is no detained discussion on this aspect. moreover, it is the other factors which prevailed with the court to accept the settlement and compound he offence, as noted above while discussing this case. on the other hand, in shambhu kewat ( supra ), after referring to some other earlier judgments, this court opined that commission of offence under section 307 ipc would be crime against the society at large, and not a crime against an individual only. we find that in most of the cases, this view is taken. even on first principle, we find that an attempt to take the life of another person has to be treated as a heinous crime and against the society. 28. having said so, we would hasten to add that though it is a serious offence as the accused person ( s ) attempted to take the life of another person / victim, at the same time the court cannot be oblivious to hard realities that many times whenever there is a quarrel between the parties leading to physical commotion and sustaining of injury by either or both the parties, there is a tendency to give it a slant of an offence under section 307 ipc as well. therefore, only because fir / charge - sheet incorporates the provision of section 307 ipc would not, by itself, be a ground to reject the petition under section 482 of the code and refuse to accept the settlement between the parties. we are, therefore, of the opinion that while taking a call as to whether compromise in such cases should be effected or not, the high court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted ( namely whether injuries are caused at the vital / delicate parts of the body ) and the nature of weapons used etc. on that basis, if it is found that there is a strong possibility of proving the charge under section 307 ipc, once the evidence to that effect is led and injuries proved, the court should not accept settlement between the parties. on the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the high court forms an opinion that provisions of section 307 ipc were unnecessary included in the charge sheet, the court can accept the plea of compounding of the offence based on settlement between the parties. 29. at this juncture, we would like also to add that the timing of settlement would also play a crucial role. if the settlement is arrived at immediately after the alleged commission of offence

when the matter is still under investigation, the high court may be somewhat liberal in accepting the settlement and quashing the proceedings / investigation. of course, it would be after looking into the attendant circumstances as narrated in the previous para. likewise, when challan is submitted but the charge has not been framed, the high court may exercise its discretionary jurisdiction. however, at this stage, as mentioned above, since the report of the i. o. under section 173, cr. p. c. is also placed before the court it would become the bounding duty of the court to go into the said report and the evidence collected, particularly the medical evidence relating to injury etc. sustained by the victim. this aspect, however, would be examined along with another important consideration, namely, in view of settlement between the parties, whether it would be unfair or contrary to interest of justice to continue with the criminal proceedings and whether possibility of conviction is remote and bleak. if the court finds the answer to this question in affirmative, then also such a case would be a fit case for the high court to give its stamp of approval to the compromise arrived at between the parties, inasmuch as in such cases no useful purpose would be served in carrying out the criminal proceedings which in all likelihood would end in acquittal, in any case. 30. we have found that in certain cases, the high courts have accepted the compromise between the parties when the matter in appeal was pending before the high court against the conviction recorded by the trial court. obviously, such cases are those where the accused persons have been found guilty by the trial court, which means the serious charge of section 307 ipc has been proved beyond reasonable doubt at the level of the trial court. there would not be any question of accepting compromise and acquitting the accused persons simply because the private parties have buried the hatchet. 31. in view of the aforesaid discussion, we sum up and lay down the following principles by which the high court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under section 482 of the code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings : ( i ) power conferred under section 482 of the code is to be distinguished from the power which lies in the court to compound the offences under section 320 of the code. no doubt, under section 482 of the code, the high court has inherent power to quash the criminal proceedings even in those cases which

are not compoundable, where the parties have settled the matter between themselves. however, this power is to be exercised sparingly and with caution. ( ii ) when the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure : ( i ) ends of justice, or ( ii ) to prevent abuse of the process of any court. while exercising the power the high court is to form an opinion on either of the aforesaid two objectives. ( iii ) such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. such offences are not private in nature and have a serious impact on society. similarly, for offences alleged to have been committed under special statute like the prevention of corruption act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. ( iv ) on the other, those criminal cases having overwhelmingly and pre - dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. ( v ) while exercising its powers, the high court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. ( vi ) offences under section 307 ipc would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. however, the high court would not rest its decision merely because there is a mention of section 307 ipc in the fir or the charge is framed under this provision. it would be open to the high court to examine as to whether incorporation of section 307 ipc is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under section 307 ipc. for this purpose, it would be open to the high court to go by the nature of injury sustained, whether such injury is inflicted on the vital / delegate parts of the body, nature of weapons used etc. medical report in respect of injuries suffered by the victim can generally be the guiding factor. on the basis of this prima facie analysis, the high court can examine as to

whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. in the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the high court to accept the plea compounding the offence based on complete settlement between the parties. at this stage, the court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. ( vii ) while deciding whether to exercise its power under section 482 of the code or not, timings of settlement play a crucial role. those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the high court may be liberal in accepting the settlement to quash the criminal proceedings / investigation. it is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the high court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances / material mentioned above. on the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the high court should refrain from exercising its power under section 482 of the code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under section 307 ipc is committed or not. similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the high court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. here charge is proved under section 307 ipc and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime. 32. after having clarified the legal position in the manner aforesaid, we proceed to discuss the case at hand. 33. in the present case, fir no. 121 dated 14. 7. 2010 was registered under section 307 / 324 / 323 / 34 ipc. investigation was completed, whereafter challan was presented in the court against the petitioner herein. charges have also been framed ; the case is

at the stage of recording of evidence. at this juncture, parties entered into compromise on the basis of which petition under section 482 of the code was filed by the petitioners namely the accused persons for quashing of the criminal proceedings under the said fir. as per the copy of the settlement which was annexed along with the petition, the compromise took place between the parties on 12. 7. 2013 when respectable members of the gram panchayat held a meeting under the chairmanship of sarpanch. it is stated that on the intervention of the said persons / panchayat, both the parties were agreed for compromise and have also decided to live with peace in future with each other. it was argued that since the parties have decided to keep harmony between the parties so that in future they are able to live with peace and love and they are the residents of the same village, the high court should have accepted the said compromise and quash the proceedings. 34. we find from the impugned order that the sole reason which weighed with the high court in refusing to accept the settlement between the parties was the nature of injuries. if we go by that factor alone, normally we would tend to agree with the high court s approach. however, as pointed out hereinafter, some other attendant and inseparable circumstances also need to be kept in mind which compel us to take a different view. 35. we have gone through the fir as well which was recorded on the basis of statement of the complainant / victim. it gives an indication that the complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute etc. is not stated in detail. however, a very pertinent statement appears on record viz., respectable persons have been trying for a compromise up till now, which could not be finalized. this becomes an important aspect. it appears that there have been some disputes which led to the aforesaid purported attack by the accused on the complainant. in this context when we find that the elders of the village, including sarpanch, intervened in the matter and the parties have not only buried their hatchet but have decided to live peacefully in future, this becomes an important consideration. the evidence is yet to be led in the court. it has not even started. in view of compromise between parties, there is a minimal chance of the witnesses coming forward in support of the prosecution case. even though nature of injuries can still be established by producing the doctor as witness who conducted medical examination, it may become

difficult to prove as to who caused these injuries. the chances of conviction, therefore, appear to be remote. it would, therefore, be unnecessary to drag these proceedings. we, taking all these factors into consideration cumulatively, are of the opinion that the compromise between the parties be accepted and the criminal proceedings arising out of fir no. 121 dated 14. 7. 2010 registered with police station lopoke, district amritsar rural be quashed. we order accordingly. 36. appeal is allowed. no costs. j. ( k. s. radhakrishnan ) j. ( a. k. sikri ) new delhi, march 27, 2014

1. being aggrieved by the judgment delivered on 19th september, 2002 in income tax appeal no. 19 of 2001 by the high court of judicature of rajasthan, jaipur bench, this appeal has been filed by the assessee, which is a co - operative society. when the appeal was called out for hearing, none had appeared for the appellant co - operative society. upon perusal of the record, we found that the learned advocate who had appeared earlier had become a senior counsel. in the circumstances, we had requested his colleague to appear in the matter but he had shown his reluctance to appear for the appellant society, especially in view of the fact that though more than two letters had been addressed to the appellant society for sending vakalatnama or for making appropriate arrangement for its appearance in this court, the appellant society had not even cared to reply to the said letters. as the appellant society is a society wherein the state of rajasthan has substantial interest, we had requested learned advocate mr. puneet jain to assist the court by appearing for the appellant society and in pursuance of the request of this court, he had rendered his valuable assistance by appearing for the appellant society. 2. the facts giving rise to the present appeal in a nut - shell are as under : there were four co - operative societies in the state of rajasthan wherein the government of rajasthan had substantial share holding, namely - ( i ) rajasthan co - operative spinning mills ltd. ; ( ii ) gangapur co - operative spinning mills ltd. ; ( iii ) ganganagar co - operative spinning mills ltd. ; and ( iv ) gulabpura cotton ginning & pressing sahkari samiti ltd. an administrative decision was taken by the government of rajasthan to amalgamate all the aforestated co - operative societies into the appellant co - operative society, namely rajasthan rajya sahkari spinning & ginning mills federation ltd w. e. f. 01. 01. 1993. upon amalgamation of the said societies into the appellant society, the registration of the said four co - operative societies had been cancelled and all the assets and liabilities of the said four societies had been taken over by the appellant society by virtue of the aforestated amalgamation. the aforestated four societies were not sound financially and they had substantial accumulative losses. after the amalgamation of the four co - operative

societies into the appellant society, when income - tax returns for the assessment years 1994 - 95 and 1995 - 96 were filed by the appellant society, the appellant society wanted to get the accumulated losses of the aforestated societies, of about rs. 2, 68, 39, 504 / -, carried forward, so that the same could be set off against the profits of the appellant society under the provisions of section 72 of the income tax act, 1961 ( hereinafter referred to as the act ). the assessing officer negatived the appellant s claim for the reason that the said societies were not in existence after their amalgamation into the appellant society. as the said four societies were not in existence, according to the assessing officer, their accumulated losses could not have been carried forward or adjusted against the profits of the appellant society. assessment orders were passed accordingly. 3. being aggrieved by the above stated assessment orders, appeals were filed before the cit ( appeals ) and the cit ( appeals ) dismissed the said appeals. further appeals were filed before the income tax appellate tribunal but the tribunal also dismissed the appeals. 4. being aggrieved by the common order passed by the tribunal, the appellant filed income tax appeal no. 19 of 2001 before the high court of rajasthan and the said income tax appeal was also dismissed and therefore, the appellant has approached this court by way of the present appeal. 5. the learned counsel appearing for the appellant society had submitted that the assessing officer and the authorities below, confirming the view taken by the assessing officer, are not correct for the reason that upon amalgamation of the aforestated four co - operative societies into the appellant society, by virtue of the provisions of section 16 ( 8 ) of the rajasthan co - operative societies act, rights and obligations of the societies so amalgamated would not be affected and therefore, all the rights which the societies had with regard to carrying forward of their losses would continue, and as the said societies had been amalgamated into the appellant society, the appellant society ought to have been permitted to set off the losses suffered by the amalgamated societies. the learned counsel had relied upon section 16 ( 8 ) of rajasthan co - operative societies act, 1965 which is reproduced hereinbelow : 6. the learned counsel had further submitted that reading section 72 ( 1 ) of the act with section 16 ( 8 ) of the rajasthan co - operative societies act, 1965 clearly denotes that the appellant assessee had a right

to carry forward losses incurred by the amalgamating societies and set off the business losses of the said societies against the profits and gains of the appellant society. 7. he had further submitted that the word company used in section 72 ( a ) of the act should be given wide interpretation so as to include societies in the term company because like companies, societies also have a distinct legal personality and there is no reason for the authorities under the act to give different treatment to co - operative societies. 8. it had further been submitted that the appellant society had a vested right to get the accumulated losses of the amalgamated societies adjusted against the profits of the appellant society and the said vested right could not have been taken away by the assessing officer. so as to substantiate his submission, he had relied upon the judgment delivered in the case of commissioner of income tax v. m / s. shah sadiq and sons 1987 ( 3 ) scc 516. 9. he had, therefore, submitted that the appeal deserved to be allowed and the appellant society should be permitted to set off accumulated losses of the amalgamating societies against the profits of the appellant society. 10. on the other hand, the learned counsel appearing for the authorities of the income tax department had submitted that the concurrent findings of the fact, and the views expressed by all the authorities below and the high court were absolutely correct and therefore, the impugned judgment did not require any interference. it had been submitted by him that the registration of the amalgamating societies had been cancelled upon the amalgamation and as they were not in existence at the time when the appellant society was assessed, there was no question of carrying forward accumulated losses of the amalgamating societies and adjusting them against the profits of the appellant society. 11. he had drawn our attention to the provisions of section 72 and 72a of the act. he had further submitted that upon conjoint reading of section 72 and 72a of the act, it is clear that the co - operative societies cannot get the benefit of carrying forward and setting off accumulated losses if the said societies were not in existence. only in case of a company, the benefit of set off could be availed by an amalgamated company, if the amalgamating company had accumulated losses which could have been carried forward and adjusted against the profits of the amalgamated company in accordance with the provisions of the act. 12. so as to substantiate his submissions, he had relied upon judgments delivered in the case of the commissioner of income tax

, lucknow v. sh. madho pd. jatia 1976 ( 4 ) scc 92 and m / s. baidyanath ayurved bhawan ( pvt. ) ltd., jhansi v. the excise commissioner, u. p. and others 1971 ( 1 ) scc 4. he had also relied upon the judgment delivered in the case of commissioner of income tax, bombay v. maharashtra sugar mills ltd., bombay 1971 ( 3 ) scc 543. upon perusal of the aforestated judgments, which support the learned counsel appearing for the income tax authorities, it is clear that the tax statute should be interpreted very strictly as there is no equity in tax matters and nothing can be read which is not in the section. 13. thus, the learned counsel appearing for the respondent authorities had submitted that the impugned judgment is just and correct and therefore, the appeal deserved to be dismissed. 14. we had heard the learned counsel and had also perused records pertaining to the case and had also gone through the judgments referred to by them, and upon hearing them we are of the view that the judgment delivered by the high court is absolutely just and proper. 15. the main submission of the learned counsel appearing for the appellant society was that the appellant society, being an amalgamated society, must get benefit of setting off losses of the co - operative societies which had been amalgamated into the appellant society. according to him by virtue of the provisions of section 16 ( 8 ) of the rajasthan co - operative societies act, 1965, read with sections 72 and 72 ( a ) of the act, the accumulated losses of the amalgamating societies should have been permitted to be adjusted or set off against the profits of the appellant society. his main submission was that by virtue of section 16 ( 8 ) of the rajasthan co - operative societies act, 1965 all legal proceedings initiated against or by the amalgamating co - operative societies would continue and therefore, right of the amalgamating societies with regard to getting their losses carried forward and set off against the profits of the amalgamated society would continue. 16. we are not in agreement with the submissions made by the learned counsel appearing for the appellant for the reason that for the purpose of getting carried forward losses adjusted or set off against the profits of subsequent years, there must be some provision in the act. if there is no provision, the societies which are not in existence

cannot get any benefit. the losses were suffered by the societies which were in existence at the relevant time and their existence or legal personality had come to an end upon being amalgamated into another society. 17. the normal principle is that a non - existent person cannot file an income tax return and therefore, cannot carry forward its losses after its existence comes to an end. all those four societies, upon their amalgamation into the appellant society, had ceased to exist and registration of those societies had been cancelled. in the circumstances, those societies had no right under the provisions of the act to file a return to get their earlier losses adjusted against the income of a different legal personality i. e. the appellant society. 18. so far as companies are concerned, there is a specific provision in the act that upon amalgamation of one company with another, losses of the amalgamating companies can be carried forward and the amalgamated company can get those losses set off against its profits subject to the provisions of the act. this is permissible by virtue of section 72 a of the act but there is no such provision in the case of co - operative societies. 19. it is pertinent to note that such a provision has been made only with regard to amalgamation of companies and later on similar provisions were made with regard to banks, etc., but at the relevant time there was no such provision which would permit the amalgamating co - operative society to carry forward and adjust such losses against the profits of the amalgamated co - operative society. 20. the submission made by the learned counsel appearing for the appellant with regard to discrimination and violation of article 14 of the constitution of india would also not help the appellant, as in our opinion, there is no discrimination. the societies and companies belong to different classes and simply because both have a distinct legal personality, it cannot be said that both must be given the same treatment. 21. we agree with the view expressed by the high court that as there is no provision under the act for setting off accumulated losses of the amalgamating societies against the profits of the amalgamated society, the appellant society could not have got the benefit of carrying forward losses of the erstwhile societies which were not in existence during the relevant assessment year. 22. we are also of the view that in all the tax matters one has to interpret taxation statute strictly. simply because one class of legal entities are given some benefit which is specifically stated in the act does not mean that the legal entities not referred to in the act

would also get the same benefit. as stated by this court on several occasions, there is no equity in matters of taxation. one cannot read into a section which has not been specifically provided for and therefore, we do not agree with the submissions of the learned counsel appearing for the appellant and we are not prepared to read something in the section which has not been provided for. the judgments referred to hereinabove support the view which we have expressed here. 23. for the reasons stated hereinabove, the appeal is dismissed with no order as to costs.., j. ( anil r. dave )., j. ( shiva kirti singh ) new delhi ; april 29, 2014 - - - - - - - - - - - - - - - - - - - - - - -

dr. b. s. chauhan, j. 1. this reference before us arises out of a variety of views having been expressed by this court and several high courts of the country on the scope and extent of the powers of the courts under the criminal justice system to arraign any person as an accused during the course of inquiry or trial as contemplated under section 319 of the code of criminal procedure, 1973 ( hereinafter referred to as the ` cr. p. c. ). 2. the initial reference was made by a two - judge bench vide order dated 7. 11. 2008 in the leading case of hardeep singh ( crl. appeal no. 1750 of 2008 ) where noticing the conflict between the judgments in the case of rakesh v. state of haryana, air 2001 sc 2521 ; and a two - judge bench decision in the case of mohd. shafi v. mohd. rafiq & anr., air 2007 sc 1899, a doubt was expressed about the correctness of the view in the case of mohd. shafi ( supra ). the doubts as categorised in paragraphs 75 and 78 of the reference order led to the framing of two questions by the said bench which are reproduced hereunder : 3. the reference was desired to be resolved by a three - judge bench whereafter the same came up for consideration and vide order dated 8. 12. 2011, the court opined that in view of the reference made in the case of dharam pal & ors. v. state of haryana & anr., ( 2004 ) 13 scc 9, the issues involved being identical in nature, the same should be resolved by a constitution bench consisting of at least five judges. the bench felt that since a three - judge bench has already referred the matter of dharam pal ( supra ) to a constitution bench, then in that event it would be appropriate that such overlapping issues should also be resolved by a bench of similar strength. 4. reference made in the case of dharam pal ( supra ) came to be answered in relation to the power of a court of sessions to invoke section 319 cr. p. c. at the stage of committal of the case to a court of sessions. the said reference was answered by the constitution bench in the case of dharam pal & ors. v. state of haryana & anr., air 2013 sc 3018 [ hereinafter called dharam pal ( cb

) ], wherein it was held that a court of sessions can with the aid of section 193 cr. p. c. proceed to array any other person and summon him for being tried even if the provisions of section 319 cr. p. c. could not be pressed in service at the stage of committal. thus, after the reference was made by a three - judge bench in the present case, the powers so far as the court of sessions is concerned, to invoke section 319 cr. p. c. at the stage of committal, stood answered finally in the aforesaid background. 5. on the consideration of the submissions raised and in view of what has been noted above, the following questions are to be answered by this bench : 6. in this reference what we are primarily concerned with, is the stage at which such powers can be invoked and, secondly, the material on the basis whereof the invoking of such powers can be justified. to add as a corollary to the same, thirdly, the manner in which such power has to be exercised, also has to be considered. 7. the constitutional mandate under articles 20 and 21 of the constitution of india, 1950 ( hereinafter referred to as the constitution ) provides a protective umbrella for the smooth administration of justice making adequate provisions to ensure a fair and efficacious trial so that the accused does not get prejudiced after the law has been put into motion to try him for the offence but at the same time also gives equal protection to victims and to the society at large to ensure that the guilty does not get away from the clutches of law. for the empowerment of the courts to ensure that the criminal administration of justice works properly, the law was appropriately codified and modified by the legislature under the cr. p. c. indicating as to how the courts should proceed in order to ultimately find out the truth so that an innocent does not get punished but at the same time, the guilty are brought to book under the law. it is these ideals as enshrined under the constitution and our laws that have led to several decisions, whereby innovating methods and progressive tools have been forged to find out the real truth and to ensure that the guilty does not go unpunished. the presumption of innocence is the general law of the land as every man is presumed to be innocent unless proven to be guilty. 8. alternatively, certain statutory presumptions in relation to certain class of offences have been raised against the accused whereby the presumption of guilt prevails till the accused discharges his

burden upon an onus being cast upon him under the law to prove himself to be innocent. these competing theories have been kept in mind by the legislature. the entire effort, therefore, is not to allow the real perpetrator of an offence to get away unpunished. this is also a part of fair trial and in our opinion, in order to achieve this very end that the legislature thought of incorporating provisions of section 319 cr. p. c. 9. it is with the said object in mind that a constructive and purposive interpretation should be adopted that advances the cause of justice and does not dilute the intention of the statute conferring powers on the court to carry out the above mentioned avowed object and purpose to try the person to the satisfaction of the court as an accomplice in the commission of the offence that is subject matter of trial. 10. in order to answer the aforesaid questions posed, it will be appropriate to refer to section 351 of the criminal procedure code, 1898 ( hereinafter referred to as ` old code ), where an analogous provision existed, empowering the court to summon any person other than the accused if he is found to be connected with the commission of the offence. however, when the new cr. p. c. was being drafted, regard was had to 41st report of the law commission where in the paragraphs 24. 80 and 24. 81 recommendations were made to make this provision more comprehensive. the said recommendations read : 11. section 319 cr. p. c. as it exists today, is quoted hereunder : 12. section 319 cr. p. c. springs out of the doctrine judex damnatur cum nocens absolvitur ( judge is condemned when guilty is acquitted ) and this doctrine must be used as a beacon light while explaining the ambit and the spirit underlying the enactment of section 319 cr. p. c. it is the duty of the court to do justice by punishing the real culprit. where the investigating agency for any reason does not array one of the real culprits as an accused, the court is not powerless in calling the said accused to face trial. the question remains under what circumstances and at what stage should the court exercise its power as contemplated in section 319 cr. p. c.? the submissions that were raised before us covered a very wide canvas and the learned counsel have taken us through various provisions of cr. p. c. and the judgments that have been relied on for the said purpose

. the controversy centers around the stage at which such powers can be invoked by the court and the material on the basis whereof such powers can be exercised. 13. it would be necessary to put on record that the power conferred under section 319 cr. p. c. is only on the court. this has to be understood in the context that section 319 cr. p. c. empowers only the court to proceed against such person. the word court in our hierarchy of criminal courts has been defined under section 6 cr. p. c., which includes the courts of sessions, judicial magistrates, metropolitan magistrates as well as executive magistrates. the court of sessions is defined in section 9 cr. p. c. and the courts of judicial magistrates has been defined under section 11 thereof. the courts of metropolitan magistrates has been defined under section 16 cr. p. c. the courts which can try offences committed under the indian penal code, 1860 or any offence under any other law, have been specified under section 26 cr. p. c. read with first schedule. the explanatory note ( 2 ) under the heading of classification of offences under the first schedule specifies the expression magistrate of first class and any magistrate to include metropolitan magistrates who are empowered to try the offences under the said schedule but excludes executive magistrates. 14. it is at this stage the comparison of the words used under section 319 cr. p. c. has to be understood distinctively from the word used under section 2 ( g ) defining an inquiry other than the trial by a magistrate or a court. here the legislature has used two words, namely the magistrate or court, whereas under section 319 cr. p. c., as indicated above, only the word court has been recited. this has been done by the legislature to emphasise that the power under section 319 cr. p. c. is exercisable only by the court and not by any officer not acting as a court. thus, the magistrate not functioning or exercising powers as a court can make an inquiry in particular proceeding other than a trial but the material so collected would not be by a court during the course of an inquiry or a trial. the conclusion therefore, in short, is that in order to invoke the power under section 319 cr. p. c., it is only a court of sessions or a court of magistrate performing the duties as a court under the cr. p. c. that can utilise the material before it for the purpose of the

said section. 15. section 319 cr. p. c. allows the court to proceed against any person who is not an accused in a case before it. thus, the person against whom summons are issued in exercise of such powers, has to necessarily not be an accused already facing trial. he can either be a person named in column 2 of the chargesheet filed under section 173 cr. p. c. or a person whose name has been disclosed in any material before the court that is to be considered for the purpose of trying the offence, but not investigated. he has to be a person whose complicity may be indicated and connected with the commission of the offence. 16. the legislature cannot be presumed to have imagined all the circumstances and, therefore, it is the duty of the court to give full effect to the words used by the legislature so as to encompass any situation which the court may have to tackle while proceeding to try an offence and not allow a person who deserves to be tried to go scot free by being not arraigned in the trial in spite of possibility of his complicity which can be gathered from the documents presented by the prosecution. 17. 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. 18. coming to the stage at which power under section 319 cr. p. c. can be exercised, in dharam pal ( supra ), this court had noticed the conflict in the decisions of kishun singh & ors v. state of bihar, ( 1993 ) 2 scc 16 and ranjit singh v. state of punjab, air 1998 sc 3148, and referred the matter to the constitution bench. however, while referring the matter to a constitution bench, this court affirmed the judgment in kishun singh ( supra ) and doubted the correctness of the judgment in ranjit singh ( supra ). in ranjit singh ( supra ), this court observed that from the stage of committal till the sessions court reaches the stage indicated in section

230 cr. p. c., that court can deal with only the accused referred to in section 209 cr. p. c. and there is no intermediary stage till then for the sessions court to add any other person to the array of the accused, while in kishun singh ( supra ), this court came to the conclusion that even the sessions court has power under section 193 cr. p. c. to take cognizance of the offence and summon other persons whose complicity in the commission of the trial can prima facie be gathered from the materials available on record and need not wait till the stage of section 319 cr. p. c. is reached. this court in dharam pal ( supra ) held that the effect of ranjit singh ( supra ) would be that in less serious offences triable by a magistrate, the said court would have the power to proceed against those who are mentioned in column 2 of the charge - sheet, if on the basis of material on record, the magistrate disagrees with the conclusion reached by the police, but, as far as serious offences triable by the court of sessions are concerned, that court will have to wait till the stage of section 319 cr. p. c. is reached. 19. at the very outset, we may explain that the issue that was being considered by this court in dharam pal ( cb ), was the exercise of such power at the stage of committal of a case and the court held that even if section 319 cr. p. c. could not be invoked at that stage, section 193 cr. p. c. could be invoked for the said purpose. we are not delving into the said issue which had been answered by the five - judge bench of this court. however, we may clarify that the opening words of section 193 cr. p. c. categorically recite that the power of the court of sessions to take cognizance would commence only after committal of the case by a magistrate. the said provision opens with a non - obstante clause except as otherwise expressly provided by this code or by any other law for the time being in force. the section therefore is clarified by the said opening words which clearly means that if there is any other provision under cr. p. c., expressly making a provision for exercise of powers by the court to take cognizance, then the same would apply and the provisions of section 193 cr. p. c. would not be applicable. 20. in our

opinion, section 319 cr. p. c. is an enabling provision empowering the court to take appropriate steps for proceeding against any person not being an accused for also having committed the offence under trial. it is this part which is under reference before this court and therefore in our opinion, while answering the question referred to herein, we do not find any conflict so as to delve upon the situation that was dealt by this court in dharam pal ( cb ). 21. in elachuri venkatachinnayya & ors. v. king - emperor ( 1920 ) ilr 43 mad 511, this court held that an inquiry is a stage before the committal to a higher court. in fact, from a careful reading of the judgments under reference i. e. ranjit singh ( supra ) and kishun singh ( supra ), it emerges that there is no dispute even in these two cases that the stage of committal is neither an inquiry nor a trial, for in both the cases, the real dispute was whether section 193 cr. p. c. can be invoked at the time of committal to summon an accused to face trial who is not already an accused. it can safely be said that both the cases are in harmony as to the said stage neither being a stage of inquiry nor a trial. 22. once the aforesaid stand is clarified in relation to the stage of committal before the court of sessions, the answer to the question posed now, stands focussed only on the stage at which such powers can be exercised by the court other than the stage of committal and the material on the basis whereof such powers can be invoked by the court. question no. ( i ) what is the stage at which power under section 319 cr. p. c. can be exercised? 23. the stage of inquiry and trial upon cognizance being taken of an offence, has been considered by a large number of decisions of this court and that it may be useful to extract the same hereunder for proper appreciation of the stage of invoking of the powers under section 319 cr. p. c. to understand the meaning that can be attributed to the word inquiry and trial as used under the section. 24. in raghubans dubey v. state of bihar, air 1967 sc 1167, this court held : 25. the stage of inquiry commences, insofar as the court is concerned, with the filing of the charge - sheet and the consideration of the material collected

by the prosecution, that is mentioned in the charge - sheet for the purpose of trying the accused. this has to be understood in terms of section 2 ( g ) cr. p. c., which defines an inquiry as follows : 2 ( g ) inquiry means every inquiry, other than a trial, conducted under this code by a magistrate or court. 26. in state of u. p. v. lakshmi brahman & anr., air 1983 sc 439, this court held that from the stage of filing of charge - sheet to ensuring the compliance of provision of section 207 cr. p. c., the court is only at the stage of inquiry and no trial can be said to have commenced. the above view has been held to be per incurium in raj kishore prasad v. state of bihar & anr., air 1996 sc 1931, wherein this court while observing that section 319 ( 1 ) cr. p. c. operates in an ongoing inquiry into, or trial of, an offence, held that at the stage of section 209 cr. p. c., the court is neither at the stage of inquiry nor at the stage of trial. even at the stage of ensuring compliance of sections 207 and 208 cr. p. c., it cannot be said that the court is at the stage of inquiry because there is no judicial application of mind and all that the magistrate is required to do is to make the case ready to be heard by the court of sessions. 27. trial is distinct from an inquiry and must necessarily succeed it. the purpose of the trial is to fasten the responsibility upon a person on the basis of facts presented and evidence led in this behalf. in moly & anr. v. state of kerala, air 2004 sc 1890, this court observed that though the word trial is not defined in the code, it is clearly distinguishable from inquiry. inquiry must always be a forerunner to the trial. a three - judge bench of this court in the state of bihar v. ram naresh pandey & anr., air 1957 sc 389 held : 28. in ratilal bhanji mithani v. state of maharashtra & ors., air 1979 sc 94, this court held : 29. in v. c. shukla v. state through c. b. i., air 1980 sc 962, this court held :

30. in union of india & ors. v. major general madan lal yadav ( retd. ), air 1996 sc 1340, a three - judge bench while dealing with the proceedings in general court martial under the provisions of the army act 1950, applied legal maxim nullus commodum capere potest de injuria sua propria ( no one can take advantage of his own wrong ), and referred to various dictionary meanings of the word trial and came to the conclusion : 31. in common cause, a registered society thr. its director v. union of india & ors., air 1997 sc 1539, this court while dealing with the issue held : 32. in raj kishore prasad ( supra ), this court said that as soon as the prosecutor is present before the court and that court hears the parties on framing of charges and discharge, trial is said to have commenced and that there is no intermediate stage between committal of case and framing of charge. 33. in in re : narayanaswamy naidu v. unknown 1 ind cas 228, a full bench of the madras high court held that trial begins when the accused is charged and called on to answer and then the question before the court is whether the accused is to be acquitted or convicted and not whether the complaint is to be dismissed or the accused discharged. a similar view has been taken by madras high court subsequently in sriramulu v. veerasalingam, ( 1914 ) i. l. r. 38 mad. 585. 34. however, the bombay high court in dagdu govindshet wani v. punja vedu wani ( 1936 ) 38 bom. l. r. 1189 referring to sriramulu ( supra ) held : empress, ( 1898 ) i. l. r. 25 cal. 863, that is to say, trial has always been understood to mean the proceeding which commences when the case is called on with the magistrate on the bench, the accused in the dock and the representatives of the prosecution and, defence, if the accused be defended, present in court for the hearing of the case. a similar view has been taken by the lahore high court in sahib din v. the crown, ( 1922 ) i. l. r. 3 lah. 115, wherein it was held that

for the purposes of section 350 of the code, a trial cannot be said to commence only when a charge is framed. the trial covers the whole of the proceedings in a warrant case. this case was followed in fakhruddin v. the crown, ( 1924 ) i. l. r. 6 lah. 176 ; and in labhsing v. emperor, ( 1934 ) 35 cr. l. j. 1261. 35. in view of the above, the law can be summarised to the effect that as trial means determination of issues adjudging the guilt or the innocence of a person, the person has to be aware of what is the case against him and it is only at the stage of framing of the charges that the court informs him of the same, the trial commences only on charges being framed. thus, we do not approve the view taken by the courts that in a criminal case, trial commences on cognizance being taken. 36. section 2 ( g ) cr. p. c. and the case laws referred to above, therefore, clearly envisage inquiry before the actual commencement of the trial, and is an act conducted under cr. p. c. by the magistrate or the court. the word inquiry is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the court on the filing of the charge - sheet. the court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial. 37. even the word course occurring in section 319 cr. p. c., clearly indicates that the power can be exercised only during the period when the inquiry has been commenced and is going on or the trial which has commenced and is going on. it covers the entire wide range of the process of the pre - trial and the trial stage. the word course therefore, allows the court to invoke this power to proceed against any person from the initial stage of inquiry upto the stage of the conclusion of the trial. the court does not become functus officio even if cognizance is taken so far as it is looking into the material qua any other person who is not an accused. the word course ordinarily conveys a meaning of a continuous progress from one point to the next in time and conveys the idea of a period of time ; duration and not a fixed point of time. ( see : commissioner of income - tax

, new delhi ( now rajasthan ) v. m / s. east west import & export ( p ) ltd. ( now known as asian distributors ltd. ) jaipur, air 1989 sc 836 ). 38. in a somewhat similar manner, it has been attributed to word course the meaning of being a gradual and continuous flow advanced by journey or passage from one place to another with reference to period of time when the movement is in progress. ( see : state of travancore - cochin & ors. v. shanmugha vilas cashewnut factory, quilon, air 1953 sc 333 ). 39. to say that powers under section 319 cr. p. c. can be exercised only during trial would be reducing the impact of the word inquiry by the court. it is a settled principle of law that an interpretation which leads to the conclusion that a word used by the legislature is redundant, should be avoided as the presumption is that the legislature has deliberately and consciously used the words for carrying out the purpose of the act. the legal maxim " a verbis legis non est recedendum " which means, " from the words of law, there must be no departure " has to be kept in mind. 40. the court cannot proceed with an assumption that the legislature enacting the statute has committed a mistake and where the language of the statute is plain and unambiguous, the court cannot go behind the language of the statute so as to add or subtract a word playing the role of a political reformer or of a wise counsel to the legislature. the court has to proceed on the footing that the legislature intended what it has said and even if there is some defect in the phraseology etc., it is for others than the court to remedy that defect. the statute requires to be interpreted without doing any violence to the language used therein. the court cannot re - write, recast or reframe the legislation for the reason that it has no power to legislate. 41. no word in a statute has to be construed as surplusage. no word can be rendered ineffective or purposeless. courts are required to carry out the legislative intent fully and completely. while construing a provision, full effect is to be given to the language used therein, giving reference to the context and other provisions of the statute. by construction, a provision should not be reduced to a dead letter or useless lumber. an interpretation which renders a provision an o

##tiose should be avoided otherwise it would mean that in enacting such a provision, the legislature was involved in an exercise in futility and the product came as a purposeless piece of legislation and that the provision had been enacted without any purpose and the entire exercise to enact such a provision was most unwarranted besides being uncharitable. ( vide : patel chunibhai dajibha etc. v. narayanrao khanderao jambekar & anr., air 1965 sc 1457 ; the martin burn ltd. v. the corporation of calcutta, air 1966 sc 529 ; m. v. elisabeth & ors. v. harwan investment & trading pvt. ltd. hanoekar house, swatontapeth, vasco - de - gama, goa, air 1993 sc 1014 ; sultana begum v. prem chand jain, air 1997 sc 1006 ; state of bihar & ors. etc. etc. v. bihar distillery ltd. etc. etc., air 1997 sc 1511 ; institute of chartered accountants of india v. m / s. price waterhouse & anr., air 1998 sc 74 ; and the south central railway employees co - operative credit society employees union, secundrabad v. the registrar of co - operative societies & ors., air 1998 sc 703 ). 42. this court in rohitash kumar & ors. v. om prakash sharma & ors., air 2013 sc 30, after placing reliance on various earlier judgments of this court held : the word inquiry is not surpulsage in the said provision. 43. since after the filing of the charge - sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under section 319 ( 1 ) cr. p. c. can be exercised at any time after the charge - sheet is filed and before the pronouncement of judgment, except during the stage of section 207 / 208 cr. p. c., committal etc., which is only a pre - trial stage, intended to put the process into motion. this stage cannot be said to be a judicial step in the true sense for it only requires an application of mind rather than a judicial application of mind. 44. at this pre - trial stage, the magistrate is required

to perform acts in the nature of administrative work rather than judicial such as ensuring compliance of sections 207 and 208 cr. p. c., and committing the matter if it is exclusively triable by sessions court. therefore, it would be legitimate for us to conclude that the magistrate at the stage of sections 207 to 209 cr. p. c. is forbidden, by express provision of section 319 cr. p. c., to apply his mind to the merits of the case and determine as to whether any accused needs to be added or subtracted to face trial before the court of sessions. 45. it may be pertinent to refer to the decision in the case of raj kishore prasad ( supra ) where, in order to avoid any delay in trial, the court emphasised that such a power should be exercised keeping in view the context in which the words inquiry and trial have been used under section 319 cr. p. c. and came to the conclusion that such a power is not available at the pre - trial stage and should be invoked only at the stage of inquiry or after evidence is recorded. 46. a two - judge bench of this court in m / s. swil ltd. v. state of delhi & anr., air 2001 sc 2747, held that once the process has been issued, power under section 319 cr. p. c. cannot be exercised as at that stage, since it is neither an inquiry nor a trial. in ranjit singh ( supra ), the court held : so from the stage of committal till the sessions court reaches the stage indicated in section 230 of the code, that court can deal with only the accused referred to in section 209 of the code. there is no intermediary stage till then for the sessions court to add any other person to the array of the accused. thus, once the sessions court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under section 319 of the code can be invoked 47. in kishun singh ( supra ), the court while considering the provision of the old code, the law commission s recommendation and the provisions in the cr. p. c., held that section 319 cr. p. c. is an improved provision upon the earlier one. it has removed the difficulty of taking cognizance as cognizance against the added person would be deemed

to have been taken as originally against the other co - accused. therefore, on magistrate committing the case under section 209 cr. p. c. to the court of sessions, the bar of section 193 cr. p. c. gets lifted thereby investing the court of sessions complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record, though who is not an accused before the court. 48. in dharam pal ( cb ), the constitution bench approved the decision in kishun singh ( supra ) that the sessions judge has original power to summon accused holding that the sessions judge was entitled to issue summons under section 193 code of criminal procedure upon the case being committed to him by the magistrate. the key words in section 193 are that " no court of session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a magistrate under this code. " the above provision entails that a case must, first of all, be committed to the court of session by the magistrate. the second condition is that only after the case had been committed to it, could the court of session take cognizance of the offence exercising original jurisdiction. although, an attempt has been made to suggest that the cognizance indicated in section 193 deals not with cognizance of an offence, but of the commitment order passed by the learned magistrate, we are not inclined to accept such a submission in the clear wordings of section 193 that the court of session may take cognizance of the offences under the said section 49. it is thus aptly clear that until and unless the case reaches the stage of inquiry or trial by the court, the power under section 319 cr. p. c. cannot be exercised. in fact, this proposition does not seem to have been disturbed by the constitution bench in dharam pal ( cb ). the dispute therein was resolved visualizing a situation wherein the court was concerned with procedural delay and was of the opinion that the sessions court should not necessarily wait till the stage of section 319 cr. p. c. is reached to direct a person, not facing trial, to appear and face trial as an accused. we are in full agreement with the interpretation given by the constitution bench that section 193 cr. p. c. confers power of original

jurisdiction upon the sessions court to add an accused once the case has been committed to it. 50. in our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor the legislature could have contemplated this inasmuch as the stage for evidence has not yet arrived. the only material that the court has before it is the material collected by the prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person, who can be an accused, has been erroneously omitted from being arraigned or has been deliberately excluded by the prosecuting agencies. this is all the more necessary in order to ensure that the investigating and the prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. this is necessary to usher faith in the judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that the legislature has consciously used separate terms, namely, inquiry or trial in section 319 cr. p. c. accordingly, we hold that the court can exercise the power under section 319 cr. p. c. only after the trial proceeds and commences with the recording of the evidence and also in exceptional circumstances as explained herein above. 51. there is yet another set of provisions which form part of inquiry relevant for the purposes of section 319 cr. p. c. i. e. provisions of sections 200, 201, 202, etc. cr. p. c. applicable in the case of complaint cases. as has been discussed herein, evidence means evidence adduced before the court. complaint cases is a distinct category of criminal trial where some sort of evidence in the strict legal sense of section 3 of the evidence act 1872, ( hereinafter referred to as the evidence act ) comes before the court. there does not seem to be any restriction in the provisions of section 319 cr. p. c. so as to preclude such evidence as coming before the court in complaint cases even before charges have been framed or the process has been issued. but at that stage as there is no accused before the court, such evidence can be used only to corroborate the evidence recorded during the trial for the purpose of section 319 cr. p. c., if so required. 52. what is essential for the purpose of the section is that there should appear some evidence against a person not proceeded against and the stage of the proceedings is irrelevant.

where the complainant is circumspect in proceeding against several persons, but the court is of the opinion that there appears to be some evidence pointing to the complicity of some other persons as well, section 319 cr. p. c. acts as an empowering provision enabling the court / magistrate to initiate proceedings against such other persons. the purpose of section 319 cr. p. c. is to do complete justice and to ensure that persons who ought to have been tried as well are also tried. therefore, there does not appear to be any difficulty in invoking powers of section 319 cr. p. c. at the stage of trial in a complaint case when the evidence of the complainant as well as his witnesses is being recorded. 53. thus, the application of the provisions of section 319 cr. p. c., at the stage of inquiry is to be understood in its correct perspective. the power under section 319 cr. p. c. can be exercised only on the basis of the evidence adduced before the court during a trial. so far as its application during the course of inquiry is concerned, it remains limited as referred to hereinabove, adding a person as an accused, whose name has been mentioned in column 2 of the charge sheet or any other person who might be an accomplice. question no. ( iii ) : whether the word " evidence " used in section 319 ( 1 ) cr. p. c. has been used in a comprehensive sense and includes the evidence collected during investigation or the word " evidence " is limited to the evidence recorded during trial? 54. to answer the questions and to resolve the impediment that is being faced by the trial courts in exercising of powers under section 319 cr. p. c., the issue has to be investigated by examining the circumstances which give rise to a situation for the court to invoke such powers. the circumstances that lead to such inference being drawn up by the court for summoning a person arise out of the availability of the facts and material that comes up before the court and are made the basis for summoning such a person as an accomplice to the offence alleged to have been committed. the material should disclose the complicity of the person in the commission of the offence which has to be the material that appears from the evidence during the course of any inquiry into or trial of offence. the words as used in section 319 cr. p. c. indicate that the material has to be where. it appears from the evidence before the court. 55. before we answer this issue, let us examine the meaning of

the word evidence. according to section 3 of the evidence act, evidence means and includes : 56. according to tomlin s law dictionary, evidence is the means from which an inference may logically be drawn as to the existence of a fact. it consists of proof by testimony of witnesses, on oath ; or by writing or records. bentham defines evidence as any matter of fact, the effect, tendency or design of which presented to mind, is to produce in the mind a persuasion concerning the existence of some other matter of fact - a persuasion either affirmative or disaffirmative of its existence. of the two facts so connected, the latter may be distinguished as the principal fact, and the former as the evidentiary fact. according to wigmore on evidence, evidence represents any knowable fact or group of facts, not a legal or a logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law, or of logic, on which the determination of the tribunal is to be asked. 57. the provision and the above - mentioned definitions clearly suggest that it is an exhaustive definition. wherever the words means and include are used, it is an indication of the fact that the definition is a hard and fast definition, and no other meaning can be assigned to the expression that is put down in the definition. it indicates an exhaustive explanation of the meaning which, for the purposes of the act, must invariably be attached to these words or expression. ( vide : m / s. mahalakshmi oil mills v. state of a. p., air 1989 sc 335 ; punjab land development and reclamation corporation ltd., chandigarh v. presiding officer, labour court, chandigarh & ors., ( 1990 ) 3 scc 682 ; p. kasilingam & ors. v. p. s. g. college of technology & ors., air 1995 sc 1395 ; hamdard ( wakf ) laboratories v. dy. labour commissioner & ors., air 2008 sc 968 ; and ponds india ltd. ( merged with h. l. limited ) v. commissioner of trade tax, lucknow, ( 2008 ) 8 scc 369 ). 58. in feroze n. dotivala v. p. m. wadhwani &

ors., ( 2003 ) 1 scc 433, dealing with a similar issue, this court observed as under : 59. in kalyan kumar gogoi v. ashutosh agnihotri & anr., air 2011 sc 760, while dealing with the issue this court held : 60. in relation to a civil case, this court in ameer trading corporation ltd. v. shapoorji data processing ltd., air 2004 sc 355, held that the examination of a witness would include evidence - in - chief, cross - examination or re - examination. in omkar namdeo jadhao & ors v. second additional sessions judge buldana & anr., air 1997 sc 331 ; and ram swaroop & ors. v. state of rajasthan, air 2004 sc 2943, this court held that statements recorded under section 161 cr. p. c. during the investigation are not evidence. such statements can be used at the trial only for contradictions or omissions when the witness is examined in the court. ( see also : podda narayana & ors. v. state of a. p., air 1975 sc 1252 ; sat paul v. delhi administration, air 1976 sc 294 ; and state ( delhi administration ) v. laxman kumar & ors., air 1986 sc 250 ). 61. in lok ram v. nihal singh & anr., air 2006 sc 1892, it was held that it is evident that a person, even though had initially been named in the fir as an accused, but not charge - sheeted, can also be added as an accused to face the trial. the trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge - sheet or the case diary, because such materials contained in the charge - sheet or the case diary do not constitute evidence. 62. the majority view of the constitution bench in ramnarayan mor & anr. v. the state of maharashtra, air 1964 sc 949 has been as under : 63. similarly, this court in sunil mehta & anr. v. state of gujarat & anr., jt 2013 ( 3 ) sc 328, held that it is trite that evidence

within the meaning of the evidence act and so also within the meaning of section 244 of the cr. p. c. is what is recorded in the manner stipulated under section 138 in the case of oral evidence. documentary evidence would similarly be evidence only if the documents are proved in the manner recognised and provided for under the evidence act unless of course a statutory provision makes the document admissible as evidence without any formal proof thereof. 64. in guriya @ tabassum tauquir & ors. v. state of bihar & anr., air 2008 sc 95, this court held that in exercise of the powers under section 319 cr. p. c., the court can add a new accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge sheet or the case diary. 65. in kishun singh ( supra ), this court held : 66. a similar view has been taken by this court in raj kishore prasad ( supra ), wherein it was held that in order to apply section 319 cr. p. c., it is essential that the need to proceed against the person other than the accused appearing to be guilty of offence arises only on evidence recorded in the course of an inquiry or trial. 67. in lal suraj @ suraj singh & anr. v. state of jharkhand, ( 2009 ) 2 scc 696, a two - judge bench of this court held that a court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. in a case where, however, the court exercises its jurisdiction under section 319 cr. p. c., the power has to be exercised on the basis of the fresh evidence brought before the court. there lies a fine but clear distinction. 68. a similar view has been reiterated by this court in rajendra singh v. state of u. p. & anr., air 2007 sc 2786, observing that court should not exercise the power under section 319 cr. p. c. on the basis of materials available in the charge - sheet or the case diary, because such materials contained in the charge - sheet or the case diary do not constitute evidence. the word evidence in section 319 cr. p. c. contemplates the evidence of witnesses given in the court. 69. ordinarily, it is only after the charges are framed that the stage of recording of evidence is reached

. a bare perusal of section 227 cr. p. c. would show that the legislature has used the terms record of the case and the documents submitted therewith. it is in this context that the word evidence as appearing in section 319 cr. p. c. has to be read and understood. the material collected at the stage of investigation can at best be used for a limited purpose as provided under section 157 of the evidence act i. e. to corroborate or contradict the statements of the witnesses recorded before the court. therefore, for the exercise of power under section 319 cr. p. c., the use of word ` evidence means material that has come before the court during an inquiry or trial by it and not otherwise. if from the evidence led in the trial the court is of the opinion that a person not accused before it has also committed the offence, it may summon such person under section 319 cr. p. c. 70. with respect to documentary evidence, it is sufficient, as can be seen from a bare perusal of section 3 of the evidence act as well as the decision of the constitution bench, that a document is required to be produced and proved according to law to be called evidence. whether such evidence is relevant, irrelevant, admissible or inadmissible, is a matter of trial. 71. it is, therefore, clear that the word evidence in section 319 cr. p. c. means only such evidence as is made before the court, in relation to statements, and as produced before the court, in relation to documents. it is only such evidence that can be taken into account by the magistrate or the court to decide whether power under section 319 cr. p. c. is to be exercised and not on the basis of material collected during investigation. 72. the inquiry by the court is neither attributable to the investigation nor the prosecution, but by the court itself for collecting information to draw back a curtain that hides something material. it is the duty of the court to do so and therefore the power to perform this duty is provided under the cr. p. c. 73. the unveiling of facts other than the material collected during investigation before the magistrate or court before trial actually commences is part of the process of inquiry. such facts when recorded during trial are evidence. it is evidence only on the basis whereof trial can be held, but can the same definition be extended for any other material collected during inquiry by the magistrate or court for the purpose of section 319 cr. p. c.? 74

. an inquiry can be conducted by the magistrate or court at any stage during the proceedings before the court. this power is preserved with the court and has to be read and understood accordingly. the outcome of any such exercise should not be an impediment in the speedy trial of the case. 75. though the facts so received by the magistrate or the court may not be evidence, yet it is some material that makes things clear and unfolds concealed or deliberately suppressed material that may facilitate the trial. in the context of section 319 cr. p. c. it is an information of complicity. such material therefore, can be used even though not an evidence in stricto sensuo, but an information on record collected by the court during inquiry itself, as a prima facie satisfaction for exercising the powers as presently involved. 76. this pre - trial stage is a stage where no adjudication on the evidence of the offences involved takes place and therefore, after the material alongwith the charge - sheet has been brought before the court, the same can be inquired into in order to effectively proceed with framing of charges. after the charges are framed, the prosecution is asked to lead evidence and till that is done, there is no evidence available in the strict legal sense of section 3 of the evidence act. the actual trial of the offence by bringing the accused before the court has still not begun. what is available is the material that has been submitted before the court along with the charge - sheet. in such situation, the court only has the preparatory material that has been placed before the court for its consideration in order to proceed with the trial by framing of charges. 77. it is, therefore, not any material that can be utilised, rather it is that material after cognizance is taken by a court, that is available to it while making an inquiry into or trying an offence, that the court can utilize or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. the inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. 78. this would harmonise such material with the word evidence as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may

have either been suppressed or escaped the notice of the court. 79. the word evidence therefore has to be understood in its wider sense both at the stage of trial and, as discussed earlier, even at the stage of inquiry, as used under section 319 cr. p. c. the court, therefore, should be understood to have the power to proceed against any person after summoning him on the basis of any such material as brought forth before it. the duty and obligation of the court becomes more onerous to invoke such powers cautiously on such material after evidence has been led during trial. 80. in view of the discussion made and the conclusion drawn hereinabove, the answer to the aforesaid question posed is that apart from evidence recorded during trial, any material that has been received by the court after cognizance is taken and before the trial commences, can be utilised only for corroboration and to support the evidence recorded by the court to invoke the power under section 319 cr. p. c. the evidence is thus, limited to the evidence recorded during trial. q. ( ii ) does the word evidence in section 319 cr. p. c. means as arising in examination - in - chief or also together with cross - examination? 81. the second question referred to herein is in relation to the word ` evidence ` as used under section 319 cr. p. c., which leaves no room for doubt that the evidence as understood under section 3 of the evidence act is the statement of the witnesses that are recorded during trial and the documentary evidence in accordance with the evidence act, which also includes the document and material evidence in the evidence act. such evidence begins with the statement of the prosecution witnesses, therefore, is evidence which includes the statement during examination - in - chief. in rakesh ( supra ), it was held that it is true that finally at the time of trial the accused is to be given an opportunity to cross - examine the witness to test its truthfulness. but that stage would not arise while exercising the court s power under section 319 crpc. once the deposition is recorded, no doubt there being no cross - examination, it would be a prima facie material which would enable the sessions court to decide whether powers under section 319 should be exercised or not. in ranjit singh ( supra ), this court held that it is not necessary for the court to wait until the entire evidence is collected, for exercising the said power. in mohd. shafi ( supra ), it was held that

the pre - requisite for exercise of power under section 319 cr. p. c. was the satisfaction of the court to proceed against a person who is not an accused but against whom evidence occurs, for which the court can even wait till the cross examination is over and that there would be no illegality in doing so. a similar view has been taken by a two - judge bench in the case of harbhajan singh & anr. v. state of punjab & anr. ( 2009 ) 13 scc608. this court in hardeep singh ( supra ) seems to have misread the judgment in mohd. shafi ( supra ), as it construed that the said judgment laid down that for the exercise of power under section 319 cr. p. c., the court has to necessarily wait till the witness is cross examined and on complete appreciation of evidence, come to the conclusion whether there is a need to proceed under section 319 cr. p. c. 82. we have given our thoughtful consideration to the diverse views expressed in the aforementioned cases. once examination - in - chief is conducted, the statement becomes part of the record. it is evidence as per law and in the true sense, for at best, it may be rebuttable. an evidence being rebutted or controverted becomes a matter of consideration, relevance and belief, which is the stage of judgment by the court. yet it is evidence and it is material on the basis whereof the court can come to a prima facie opinion as to complicity of some other person who may be connected with the offence. 83. as held in mohd. shafi ( supra ) and harbhajan singh ( supra ), all that is required for the exercise of the power under section 319 cr. p. c. is that, it must appear to the court that some other person also who is not facing the trial, may also have been involved in the offence. the pre - requisite for the exercise of this power is similar to the prima facie view which the magistrate must come to in order to take cognizance of the offence. therefore, no straight - jacket formula can and should be laid with respect to conditions precedent for arriving at such an opinion and, if the magistrate / court is convinced even on the basis of evidence appearing in examination - in - chief, it can exercise the power under section 319 cr. p. c. and can proceed against such other person ( s ). it is essential to note that the section also uses the words such person

could be tried instead of should be tried. hence, what is required is not to have a mini - trial at this stage by having examination and cross - examination and thereafter rendering a decision on the overt act of such person sought to be added. in fact, it is this mini - trial that would affect the right of the person sought to be arraigned as an accused rather than not having any cross - examination at all, for in light of sub - section 4 of section 319 cr. p. c., the person would be entitled to a fresh trial where he would have all the rights including the right to cross examine prosecution witnesses and examine defence witnesses and advance his arguments upon the same. therefore, even on the basis of examination - in - chief, the court or the magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. in fact, examination - in - chief untested by cross examination, undoubtedly in itself, is an evidence. 84. further, in our opinion, there does not seem to be any logic behind waiting till the cross - examination of the witness is over. it is to be kept in mind that at the time of exercise of power under section 319 cr. p. c., the person sought to be arraigned as an accused, is in no way participating in the trial. even if the cross - examination is to be taken into consideration, the person sought to be arraigned as an accused cannot cross examine the witness ( s ) prior to passing of an order under section 319 cr. p. c., as such a procedure is not contemplated by the cr. p. c. secondly, invariably the state would not oppose or object to naming of more persons as an accused as it would only help the prosecution in completing the chain of evidence, unless the witness ( s ) is obliterating the role of persons already facing trial. more so, section 299 cr. p. c. enables the court to record evidence in absence of the accused in the circumstances mentioned therein. 85. thus, in view of the above, we hold that power under section 319 cr. p. c. can be exercised at the stage of completion of examination in chief and court does not need to wait till the said evidence is tested on cross - examination for it is the satisfaction of the court which can be gathered from the reasons recorded by the court, in respect

of complicity of some other person ( s ), not facing the trial in the offence. q. ( iv ) what is the degree of satisfaction required for invoking the power under section 319 cr. p. c.? 86. section 319 ( 1 ) cr. p. c. empowers the court to proceed against other persons who appear to be guilty of offence, though not an accused before the court. the word appear means clear to the comprehension, or a phrase near to, if not synonymous with proved. it imparts a lesser degree of probability than proof. 87. in pyare lal bhargava v. the state of rajasthan, air 1963 sc 1094, a four - judge bench of this court was concerned with the meaning of the word appear. the court held that the appropriate meaning of the word appears is seems. it imports a lesser degree of probability than proof. in ram singh & ors. v. ram niwas & anr., ( 2009 ) 14 scc 25, a two - judge bench of this court was again required to examine the importance of the word appear as appearing in the section. the court held that for the fulfillment of the condition that it appears to the court that a person had committed an offence, the court must satisfy itself about the existence of an exceptional circumstance enabling it to exercise an extraordinary jurisdiction. what is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, may lead to conviction of the persons sought to be added as an accused in the case. 88. at the time of taking cognizance, the court has to see whether a prima facie case is made out to proceed against the accused. under section 319 cr. p. c., though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. a two - judge bench of this court in vikas v. state of rajasthan, 2013 ( 11 ) scale 23, held that on the objective satisfaction of the court a person may be'arrested'or'summoned ', as the circumstances of the case may require, if it appears from the evidence that any such person not being the accused has committed an offence for which such person could be tried together with the already arraigned accused persons. 89. in rajendra singh ( supra ), the court observed : 90. in mohd. shafi ( supra ),

this court held that it is evident that before a court exercises its discretionary jurisdiction in terms of section 319 cr. p. c., it must arrive at a satisfaction that there exists a possibility that the accused so summoned in all likelihood would be convicted. 91. in sarabjit singh & anr. v. state of punjab & anr., air 2009 sc 2792, while explaining the scope of section 319 cr. p. c., a two - judge bench of this court observed : 92. in brindaban das & ors. v. state of west bengal, air 2009 sc 1248, a two - judge bench of this court took a similar view observing that the court is required to consider whether such evidence would be sufficient to convict the person being summoned. since issuance of summons under section 319 cr. p. c. entails a de novo trial and a large number of witnesses may have been examined and their re - examination could prejudice the prosecution and delay the trial, the trial court has to exercise such discretion with great care and perspicacity. a similar view has been re - iterated by this court in michael machado & anr. v. central bureau of investigation & ors., air 2000 sc 1127. 93. however, there is a series of cases wherein this court while dealing with the provisions of sections 227, 228, 239, 240, 241, 242 and 245 cr. p. c., has consistently held that the court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the accused. the court has to see as to whether the material brought on record reasonably connect the accused with the offence. nothing more is required to be enquired into. while dealing with the aforesaid provisions, the test of prima facie case is to be applied. the court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed against the accused further. ( vide : state of karnataka v. l. munishwamy & ors., air 1977 sc 1489 ; all india bank officers'confederation etc. v. union of india & ors., air 1989 sc 2045 ; stree atyachar virodhi parishad v. dilip nathumal chordia, ( 1989 ) 1 scc 715 ; state

of m. p. v. dr. krishna chandra saksena, ( 1996 ) 11 scc 439 ; and state of m. p. v. mohan lal soni, air 2000 sc 2583 ). 94. in dilawar babu kurane v. state of maharashtra, air 2002 sc 564, this court while dealing with the provisions of sections 227 and 228 cr. p. c., placed a very heavy reliance on the earlier judgment of this court in union of india v. prafulla kumar samal & anr., air 1979 sc 366 and held that while considering the question of framing the charges, the court may weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out and whether the materials placed before this court disclose grave suspicion against the accused which has not been properly explained. in such an eventuality, the court is justified in framing the charges and proceeding with the trial. the court has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but court should not make a roving enquiry into the pros and cons of the matter and weigh evidence as if it is conducting a trial. 95. in suresh v. state of maharashtra, air 2001 sc 1375, this court after taking note of the earlier judgments in niranjan singh karam singh punjabi v. jitendra bhimraj bijjaya, air 1990 sc 1962 and state of maharashtra v. priya sharan maharaj, air 1997 sc 2041, held as under : 96. similarly in state of bihar v. ramesh singh, air 1977 sc 2018, while dealing with the issue, this court held : 97. in palanisamy gounder & anr. v. state, represented by inspector of police, ( 2005 ) 12 scc 327, this court deprecated the practice of invoking the power under section 319 cr. p. c. just to conduct a fishing inquiry, as in that case, the trial court exercised that power just to find out the real truth, though there was no valid ground to proceed against the person summoned by the court. 98. power under section 319 cr. p. c. is a discretionary and an extra - ordinary power. it is to be exercised sparingly and only in those

cases where the circumstances of the case so warrant. it is not to be exercised because the magistrate or the sessions judge is of the opinion that some other person may also be guilty of committing that offence. only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. 99. thus, we hold that though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of cross - examination, it requires much stronger evidence than mere probability of his complicity. the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. in the absence of such satisfaction, the court should refrain from exercising power under section 319 cr. p. c. in section 319 cr. p. c. the purpose of providing if it appears from the evidence that any person not being the accused has committed any offence is clear from the words for which such person could be tried together with the accused. the words used are not for which such person could be convicted. there is, therefore, no scope for the court acting under section 319 cr. p. c. to form any opinion as to the guilt of the accused. q. ( v ) in what situations can the power under this section be exercised : not named in fir ; named in the fir but not charge - sheeted or has been discharged? 100. in joginder singh & anr. v. state of punjab & anr., air 1979 sc 339, a three - judge bench of this court held that as regards the contention that the phrase any person not being the accused occurring in section 319 cr. p. c. excludes from its operation an accused who has been released by the police under section 169 cr. p. c. and has been shown in column 2 of the charge - sheet, the contention has merely to be rejected. the said expression clearly covers any person who is not being tried already by the court and the very purpose of enacting such a provision like section 319 ( 1 ) cr. p. c. clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the criminal court, are included in the said expression. 101. in an

##ju chaudhary v. state of u. p. & anr., ( 2013 ) 6 scc 384, a two - judge bench of this court held that even in the cases where report under section 173 ( 2 ) cr. p. c. is filed in the court and investigation records the name of a person in column 2, or even does not name the person as an accused at all, the court in exercise of its powers vested under section 319 cr. p. c. can summon the person as an accused and even at that stage of summoning, no hearing is contemplated under the law. 102. in suman v. state of rajasthan & anr., air 2010 sc 518, a two - judge bench of this court observed that there is nothing in the language of this sub - section from which it can be inferred that a person who is named in the fir or complaint, but against whom charge - sheet is not filed by the police, cannot be proceeded against even though in the course of any inquiry into or trial of any offence, the court finds that such person has committed an offence for which he could be tried together with the other accused. in lal suraj ( supra ), a two - judge bench held that there is no dispute with the legal proposition that even if a person had not been charge - sheeted, he may come within the purview of the description of such a person as contained in section 319 cr. p. c. a similar view had been taken in lok ram ( supra ), wherein it was held that a person, though had initially been named in the fir as an accused, but not charge - sheeted, can also be added to face the trial. 103. even the constitution bench in dharam pal ( cb ) has held that the sessions court can also exercise its original jurisdiction and summon a person as an accused in case his name appears in column 2 of the chargesheet, once the case had been committed to it. it means that a person whose name does not appear even in the fir or in the chargesheet or whose name appears in the fir and not in the main part of the chargesheet but in column 2 and has not been summoned as an accused in exercise of the powers under section 193 cr. p. c. can still be summoned by the court, provided the court is satisfied that the conditions provided in the said statutory provisions stand fulfilled. 104. however, there is

a great difference with regard to a person who has been discharged. a person who has been discharged stands on a different footing than a person who was never subjected to investigation or if subjected to, but not charge - sheeted. such a person has stood the stage of inquiry before the court and upon judicial examination of the material collected during investigation ; the court had come to the conclusion that there is not even a prima facie case to proceed against such person. generally, the stage of evidence in trial is merely proving the material collected during investigation and therefore, there is not much change as regards the material existing against the person so discharged. therefore, there must exist compelling circumstances to exercise such power. the court should keep in mind that the witness when giving evidence against the person so discharged, is not doing so merely to seek revenge or is naming him at the behest of someone or for such other extraneous considerations. the court has to be circumspect in treating such evidence and try to separate the chaff from the grain. if after such careful examination of the evidence, the court is of the opinion that there does exist evidence to proceed against the person so discharged, it may take steps but only in accordance with section 398 cr. p. c. without resorting to the provision of section 319 cr. p. c. directly. 105. in sohan lal & ors. v. state of rajasthan, ( 1990 ) 4 scc 580, a two - judge bench of this court held that once an accused has been discharged, the procedure for enquiry envisaged under section 398 cr. p. c. cannot be circumvented by prescribing to procedure under section 319 cr. p. c. 106. in municipal corporation of delhi v. ram kishan rohtagi & ors., air 1983 sc 67, this court held that if the prosecution can at any stage produce evidence which satisfies the court that those who have not been arraigned as accused or against whom proceedings have been quashed, have also committed the offence, the court can take cognizance against them under section 319 cr. p. c. and try them along with the other accused. 107. power under section 398 cr. p. c. is in the nature of revisional power which can be exercised only by the high court or the sessions judge, as the case may be. according to section 300 ( 5 ) cr. p. c., a person discharged under section 258 cr. p. c. shall not

be tried again for the same offence except with the consent of the court by which he was discharged or of any other court to which the first - mentioned court is subordinate. further, section 398 cr. p. c. provides that the high court or the sessions judge may direct the chief judicial magistrate by himself or by any of the magistrate subordinate to him to make an inquiry into the case against any person who has already been discharged. 108. both these provisions contemplate an inquiry to be conducted before any person, who has already been discharged, is asked to again face trial if some evidence appears against him. as held earlier, section 319 cr. p. c. can also be invoked at the stage of inquiry. we do not see any reason why inquiry as contemplated by section 300 ( 5 ) cr. p. c. and section 398 cr. p. c. cannot be an inquiry under section 319 cr. p. c. accordingly, a person discharged can also be arraigned again as an accused but only after an inquiry as contemplated by sections 300 ( 5 ) and 398 cr. p. c. if during or after such inquiry, there appears to be an evidence against such person, power under section 319 cr. p. c. can be exercised. we may clarify that the word trial under section 319 cr. p. c. would be eclipsed by virtue of above provisions and the same cannot be invoked so far as a person discharged is concerned, but no more. 109. thus, it is evident that power under section 319 cr. p. c. can be exercised against a person not subjected to investigation, or a person placed in the column 2 of the charge - sheet and against whom cognizance had not been taken, or a person who has been discharged. however, concerning a person who has been discharged, no proceedings can be commenced against him directly under section 319 cr. p. c. without taking recourse to provisions of section 300 ( 5 ) read with section 398 cr. p. c.? 110. we accordingly sum up our conclusions as follows : question nos. 1 & iii q. 1 what is the stage at which power under section 319 cr. p. c. can be exercised? and q. iii whether the word " evidence " used in section 319 ( 1 ) cr. p. c. has been used in a comprehensive sense and includes the evidence collected during investigation or the word " evidence " is limited to the evidence recorded during trial? a. in dharam pal

' s case, the constitution bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. such cognizance can be taken under section 193 cr. p. c. and the sessions judge need not wait till'evidence'under section 319 cr. p. c. becomes available for summoning an additional accused.? section 319 cr. p. c., significantly, uses two expressions that have to be taken note of i. e. ( 1 ) inquiry ( 2 ) trial. as a trial commences after framing of charge, an inquiry can only be understood to be a pre - trial inquiry. inquiries under sections 200, 201, 202 cr. p. c. ; and under section 398 cr. p. c. are species of the inquiry contemplated by section 319 cr. p. c. materials coming before the court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under section 319 cr. p. c., and also to add an accused whose name has been shown in column 2 of the chargesheet. in view of the above position the word'evidence'in section 319 cr. p. c. has to be broadly understood and not literally i. e. as evidence brought during a trial. question no. ii q. ii whether the word " evidence " used in section 319 ( 1 ) cr. p. c. could only mean evidence tested by cross - examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination - in - chief of the witness concerned?? a. considering the fact that under section 319 cr. p. c. a person against whom material is disclosed is only summoned to face the trial and in such an event under section 319 ( 4 ) cr. p. c. the proceeding against such person is to commence from the stage of taking of cognizance, the court need not wait for the evidence against the accused proposed to be summoned to be tested by cross - examination. question no. iv q. iv what is the nature of the satisfaction required to invoke the power under section 319 cr. p. c. to arraign an accused? whether the power under section 319 ( 1 ) cr. p. c. can be exercised only if the court

is satisfied that the accused summoned will in all likelihood be convicted? a. though under section 319 ( 4 ) ( b ) cr. p. c. the accused subsequently impleaded is to be treated as if he had been an accused when the court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under section 319 cr. p. c. would be the same as for? framing a charge. the difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused ( original and subsequent ) has to be different. question no. v q. v does the power under section 319 cr. p. c. extend to persons not named in the fir or named in the fir but not chargesheeted or who have been discharged? a. a person not named in the fir or a person though named in the fir but has not been chargesheeted or a person who has been discharged can be summoned under section 319 cr. p. c. provided from the evidence it appears that such person can be tried along with the accused already facing trial. however, in so far as an accused who has been discharged is concerned the requirement of? sections 300 and 398 cr. p. c. has to be complied with before he can be summoned afresh. the matters be placed before the appropriate bench for final disposal in accordance with law explained hereinabove..................... cji. ( p. sathasivam )........................ j. ( dr. b. s. chauhan )............................................. j. ( ranjana prakash desai ).......................................

....... j. ( ranjan gogoi )............................................... j. ( s. a. bobde ) new delhi, january 10, 2014 - - - - - - - - - - - - - - - - - - - - - - -

k. s. radhakrishnan, j. 1. we are, in these cases, concerned with the interpretation of various sections that appear in chapter ii read with chapter iii of the prevention of corruption act, 1988 ( for short the pc act ), especially sections 3, 4, 5 and other related provisions dealing with offences and penalties appearing in chapter iii of the pc act. 2. we are, in criminal appeal no. 943 of 2008, concerned with the question whether the special judge, after framing charges against a public servant under 13 ( 2 ) read with section 13 ( 1 ) ( b ) falling under section 3 ( 1 ) of the pc act and against private persons for offences under sections 120 - b, 420, 467, 468, 471 ipc can go ahead with the trial of the case against the private persons for non - pc offences, even after the death of the sole public servant. in other words, the question is whether, on the death of the sole public servant, the special judge will cease to have jurisdiction to continue with the trial against the private persons for non - pc offences. further question raised is that, assuming that the special judge has jurisdiction under sub - section ( 3 ) of section 4 of the pc act to proceed against the private persons, is the special judge duty bound to try any non - pc offence, other than the offences specified under section 3 of the pc act against the accused persons charged at the same trial. 3. in criminal appeal no. 161 of 2011, we are concerned with the question as to whether the special judge has jurisdiction under section 4 ( 3 ) of the pc act to try non - pc offences against private persons when no charges have been framed against public servants for trying a case for offences under section 3 ( 1 ) of the pc act, since they died before framing of charges under the pc act or ipc. 4. we have two conflicting judgments, one rendered by the delhi high court, which is impugned in criminal appeal no. 943 of 2008 filed by the state through central bureau of investigation ( cbi ), new delhi and the other rendered by the bombay high court, which is challenged by a private person in criminal appeal no. 161 of 2011. 5. delhi high court seems to have taken the view that when public servants and non - public servants are arrayed as co - accused and some offences are under the pc act coupled with

other offences under ipc, on death of a public servant, the offences under the pc act cannot be proceeded with and the trial court has to modify and / or alter and / or amend the charges. bombay high court has taken the view that once the jurisdiction is vested on a special judge, the same cannot be divested on the death of a public servant and that if a private person has abetted any offences punishable under the pc act, he can be tried even without the public servant, in view of the separate charge levelled against such private person by the special judge. 6. we may first deal with the facts in criminal appeal no. 943 of 2008. the cbi, new delhi registered a case no. rcsig 2000 / e0001 on 16. 5. 2000 against one p. k. samal ( a - 1 ), chief manager sbi, jaipur road, j. k. singh ( a - 2 ), director m / s mideast integrated steels ltd. ( misl ), new delhi, rita singh ( a - 3 ), director m / s misl, deepak singh ( a - 4 ) and proprietor kesoram refractory, new delhi, under section 120b read with sections 420, 467, 471 ipc and section 13 ( 2 ) read with section 13 ( 1 ) ( d ) of the pc act and substantive offences under sections 420, 467, 468 and 471 ipc and section 13 ( 2 ) read with section 13 ( 1 ) ( d ) of the pc act alleging that a - 1, during 1996 - 97, was a party to a criminal conspiracy with a - 2, a - 3, a - 4 and others with the object of cheating idbi, mumbai and in pursuance thereof, a - 1 abused his official position to cause undue pecuniary advantage to the accused persons a - 2 and a - 3 and corresponding loss to idbi, to the tune of rs. 3, 52, 63, 550 / - by negotiating forged / fictitious invoices purportedly of m / s. kesoram refractories, a b. k. birla group company, calcutta, against l. cs opened by sbi, jaipur road. 7. cbi, after completing the investigation, filed charge - sheet on 1. 11. 2001 before the special judge, new delhi and the

special judge, on 25. 3. 2003, after hearing the prosecution as well as the defence counsel, framed charges against the accused persons under section 120b read with sections 467, 471 and 420 ipc and also under sections 13 ( 1 ) ( d ) and 13 ( 2 ) of the pc act and substantive offences against the accused persons under sections 420, 467, 471 ipc and also substantive offences under sections 13 ( 1 ) ( d ) and 13 ( 2 ) of the pc act against a - 1. all the accused persons pleaded not guilty and claimed trial. 8. the special judge, later, posted the case for prosecution evidence on 10. 4. 2003 and, on that day, two witnesses were present, but the case was adjourned. meanwhile, on 20. 6. 2003, the sole public servant a - 1 died. a - 3 then filed criminal revision no. 550 of 2003 before the high court of delhi on 22. 7. 2003 challenging the order framing the charges against him. the high court, on 1. 8. 2003, directed the trial court to record only the examination - in - chief of the witnesses. accordingly, the examination - in - chief of 8 prosecution witnesses was recorded on different days. on 28. 4. 2004, a - 2 filed an application before the special judge for dropping the charges in view of the death of a - 1, the sole public servant. on 12. 5. 2004, a - 2 filed an application before the high court as criminal m. c. no. 1395 / 2004 seeking stay of further proceedings before the trial court, till charges are amended. the high court, on 14. 5. 2004, directed the trial court to dispose of the application filed by a - 2 for modification, amendment or alteration of charges on account of death of a - 1 and further directed if the court feels it necessary, it may add, alter or amend the charges and proceed in accordance with law. 9. cbi, however, filed objection to the above application before the special judge on 20. 5. 2004. a - 2, on 12. 7. 2005, filed criminal revision no. 535 of 2005 before the high court for calling of the case pending before the special judge, so as to consider the propriety of not passing any order on the application for dropping the charges, despite the directions issued by the high court. he also prayed for setting aside the charges in view of the death of the sole public servant. cb

##i questioned the maintainability of the revision and also pointed out that there is no statutory provision vitiating the jurisdiction of the special judge on death of the public servant. the high court, however, placing reliance on its earlier judgement in kartongen kemi ochforvaltning ab v. state through cbi ( 2004 ) 1 jcc 218 ( bofors case ) held that on the death of a public servant, the offences under the pc act cannot be proceeded with and directed to modify and alter and / or amend the charges in view of the death of a - 1, the legality of which is under challenge in criminal appeal no. 943 of 2008. 10. we may now examine the facts in criminal appeal no. 161 of 2011. cbi ( banks securities & fraud cell ), mumbai registered an fir on 2. 7. 1996 which discloses that accused no. 1, the then chairman and managing director of the bank of maharashtra, pune, who was working as deputy general manager of bank of maharashtra along with accused nos. 9 and 10, the employees of the bank of maharashtra, entered into a criminal conspiracy with an intent to cheat the bank, with the appellant ( accused no. 2 ) and accused nos. 3 and 5, who were working as the managing director, general manager of m / s orson electronics limited respectively. it was also alleged in the fir that, during 1986 - 88, a - 2 and other accused persons entered into a criminal conspiracy with the officers of the bank of maharashtra and, in pursuance to the criminal conspiracy, obtained huge credit facilities to the tune of rs. 20 crore in favour of m / s orson electronics limited and m / s nihon electronics limited, of which a - 2 was the managing director / director, knowing very well that both the companies were having very low capital and were new. it was also alleged in the fir that those funds were not utilized for the purpose for which the same were obtained from the bank and were siphoned off through m / s orson electronics limited and other fictitious firms. consequently, accused persons failed to repay the funds of the bank, thereby the bank was cheated to the tune of rs. 20. 64 crores. it was also alleged in the fir that a - 1 had abused his position as public servant and granted favour to a - 2 to a - 8 and thereby

caused wrongful losses to the bank. 11. cbi completed the investigation and the charge - sheet was filed on 14. 9. 2001 against the accused persons for offences punishable inter alia under section 120b read with section 420 ipc and section 5 ( 2 ) read with section 5 ( 1 ) ( b ) of the prevention of corruption act, 1947, corresponding to section 13 ( 2 ) read with section 13 ( 1 ) ( d ) of the pc act, in the court of special judge, mumbai. 12. accused nos. 9 and 10, though named in the charge - sheet, could not be sent for trial since they died before the charge - sheet came to be filed on 14. 9. 2001. on 18. 2. 2005, a - 1, the sole public servant also expired. a - 2, the appellant herein, then preferred an application before the special judge for sending the case to the metropolitan magistrate at bombay for conducting the trial for offences under ipc, as the offence under the pc act was not attracted due to the death of the public servant. it was pointed out that, in the charge - sheet, two public servants were joined as accused persons, but only one of them was alive when the charge - sheet was filed. further, it was stated that when the charges were sought to be framed, no public servant was alive, hence, no charges under the pc act could be framed. in the absence of any offence under the pc act, the special judge could not have tried the offences levelled against the accused persons under the ipc. the application was, however, opposed by cbi stating that even though the sole public servant had died, the offence levelled against the accused persons could be tried by the special judge. 13. the special judge, after hearing the parties, passed the following order : 14. cbi, aggrieved by the said order, preferred criminal revision application no. 389 / 2009 before the bombay high court. the high court took the view that the jurisdiction conferred on the special judge is not divested on the death of an accused. the high court held that, upon death, the case against that public servant alone abates and the rest of them can be proceeded against by the special judge, since the court, once vested with the jurisdiction, cannot be divested of it on the death of a public servant. consequently, the order passed by the special judge was set aside and the special judge

, cbi, bombay was directed to continue with the trial of the case. aggrieved by the same, criminal appeal no. 161 of 2011 has been preferred by a - 2. 15. shri p. p. malhotra, learned additional solicitor general appearing for cbi in criminal appeal no. 943 of 2008, referred to sections 3 ( 1 ) and 4 ( 1 ) of the pc act and submitted that irrespective of whether the offence mentioned in section 3 ( 1 ) was committed by a public servant or a private person, individually or jointly, trial could be conducted only by the special judge who is conferred with the jurisdiction by the central government or the state government, as the case may be, under the pc act. shri malhotra submitted that on the death of a public servant, the jurisdiction once vested on the special judge cannot be divested. further, it was also pointed out that once the public servant dies, the charge against him alone would abate, but the jurisdiction of the court would not be divested. it was stated that the direction issued by the high court was contrary to the statutory provisions and settled principles of law and is liable to be set aside. 16. shri k. radhakrishnan, learned senior counsel appearing for the cbi in criminal appeal no. 161 of 2011, highlighted the objects and reasons of the pc act and submitted that once the jurisdiction to try the offence under the pc act, as well as the offence under ipc, has been conferred on a special judge, it cannot be divested by the act of parties, even on the death of a public servant. 17. shri v. giri, learned senior counsel and amicus curiae, submitted that once jurisdiction is conferred on a special judge, it cannot be divested by the subsequent events and on death of the public servant only the charge against him will abate, but the jurisdiction of the special judge will not be divested. 18. shri kawal nain, learned counsel appearing for the respondents in criminal appeal no. 943 of 2008, also traced the legislative history of the pc act as well as the jurisdiction of the ordinary criminal court under the code, with specific reference to section 3 of the pc act read with section 13 ( 1 ) ( d ) ( i ) ( ii ) of the pc act and section 120b of the ipc. learned counsel pointed out that the charge against public servant under section 13 ( 1 ) ( d ) ( i

) ( ii ) has abated on his death, consequently, it would not be possible for the special judge to try any offence as against the respondents, since both are intrinsically interlinked. learned counsel pointed out that to establish an offence of conspiracy, there must be two or more persons as stated in section 120a ipc. 19. shri r. basant, learned senior counsel appearing for the appellant in criminal appeal no. 161 of 2011, has taken the stand that the special judge has no jurisdiction under section 4 ( 3 ) of the pc act to try the offences punishable under section 409 read with section 120b ipc against the appellant, since there is no public servant in the array of accused persons. learned senior counsel submitted, assuming that the special judge has jurisdiction under section 4 ( 3 ) of the pc act, still the special judge has the discretion to decide as to whether he should try any offence, other than the offence specified in section 3 of the pc act. it was pointed out that the jurisdiction of the special judge to try offences specified under sections 3 ( a ) and ( b ) is not only in respect of offences punishable under the pc act, but also non - pc offences in view of section 4 ( 3 ) of the pc act, which is only an enabling provision. further, it was also pointed out that when exclusive jurisdiction is conferred on the special judge, while trying offences under section 3 ( 1 ) ( a ) and ( b ) against public servant as well as the private persons, the discretion is also conferred on the special judge under section 4 ( 3 ) to try non - pc offences as well against private persons. on the basis of the above legal premises, learned senior counsel pointed out that, in the instant case, since no charges have been framed against the public servant under section 3 ( 1 ) of the pc act and that the public servant is no more, the discretion exercised by the special judge under section 4 ( 3 ) of the pc act should not have been interfered with by the high court. 20. we may, before examining the rival contentions raised by the parties, deal with the objects and reasons for enacting the pc act. the indian penal code has provided for punishment for the offence of bribery and corruption even against the public servants. parliament, in its wisdom, noticed that the penal code was not adequate to meet the exigencies of time and a need was felt to introduce a special legislation with a view to eradicate the

evil of bribery and corruption from the society. consequently, the prevention of corruption act, 1947 was enacted, which was amended in the year 1964, based on the recommendations of the santhanam committee. parliament still felt that the anti - corruption laws should be made more effective, by widening their coverage and enhancing penalties and to expedite the proceedings and hence the 1988 act was enacted. 21. chapter ii of the pc act deals with the appointment of special judges and chapter iii deals with the offences and penalties. section 3 of the pc act deals with the power to appoint special judges, which is extracted hereunder for an easy reference : the same is also extracted below : ( 4 ) notwithstanding anything contained in the code of criminal procedure, 1973 ( 2 of 1974 ), a special judge shall, as far as practicable, hold the trial of an offence on day - to - day basis. section 5 of the pc act deals with the procedure and powers of special judge. the same also has some relevance and is extracted below for an easy reference : 22. section 3 ( 1 ) of the pc act confers power on the central government or the state government to appoint as many special judges as may be necessary, for such area or areas or for such cases or group of cases as will be specified in the notification to be issued in the official gazette. the special judge is so empowered to try any offence punishable under section 3 ( 1 ) ( a ) of the pc act. the special judge is also empowered to try under section 3 ( 1 ) ( b ) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause ( a ). to make it more precise, following offences would come within the scope of section 3 ( 1 ) of the pc act : 23. let us examine what are the offences specified in clause ( a ) of section 3 ( 1 ) of the pc act, for which reference has to be made to chapter iii of the pc act. 24. section 7 of the pc act refers to offences dealing with public servant taking gratification, other than the legal remuneration in respect of an official act. section 10 deals with punishment for abetment by a public servant of offences defined in sections 8 and 9. section 11 of the pc act refers to an offence of a public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant. offences

under sections 7, 10 and 11 can be committed only by the public servant, though an offence under section 7 can also be committed by a person expected to be a public servant. an offence under section 7 or 11 could also be abetted by a non - public servant, for which punishment has been prescribed under section 12 of the pc act. section 8 deals with the taking gratification, by corrupt or illegal means, to influence public servant. section 9 deals with taking gratification, for exercise of personal influence with public servant. offences under sections 8 and 9 can be committed by a person who need not necessarily be a public servant. an offence under sections 8, 9 or 12 can be committed by a public servant or by a private person or by combination of both. section 13 deals with the criminal misconduct by a public servant, which is exclusively an offence against the public servant relating to criminal misconduct. an offence under sections 13 is made punishable under section 15 of the pc act. the above discussion would indicate that a public servant as well as a non - public servant can commit offences punishable under the pc act. 25. a special judge appointed under section 3 ( 1 ) of the pc act has got jurisdiction to proceed exclusively against a public servant and exclusively against a non - public servant as well, depending upon the nature of the offence referred to in chapter iii of the pc act. junction of a public servant is not a must for the special judge to proceed against a non - public servant for any offence alleged to have been committed by him under chapter iii of the pc act. as already indicated, an offence under section 8 or section 9 can be committed by non - public servant and he can be proceeded against under the pc act without joinder of any public servant. for example : 26. thus, offences under sections 7, 10, 11 and 13 of the pc act can be committed by a public servant though an offence under section 7 can be committed also by a person expected to be a public servant. on the other hand : 27. thus, an offence under sections 8, 9 or 12 can be committed by any person, who need not necessarily be a public servant. such an offence can, therefore, be committed by a public servant or by a private person or by a combination of the two. it is thus clear that an offence under the pc act can be committed by either a public servant or a private person or a combination of both and in view of the mandate of section 4 ( 1 )

of the pc act, read with section 3 ( 1 ) thereof, such offences can be tried only by a special judge. for example : 28. thus, the scheme of the pc act makes it quite clear that even a private person who is involved in an offence mentioned in section 3 ( 1 ) of the pc act, is required to be tried only by a special judge, and by no other court. moreover, it is not necessary that in every offence under the pc act, a public servant must necessarily be an accused. in other words, the existence of a public servant for facing the trial before the special court is not a must and even in his absence, private persons can be tried for pc as well as non - pc offences, depending upon the facts of the case. 29. we, therefore, make it clear that it is not the law that only along with the junction of a public servant in array of parties, the special judge can proceed against private persons who have committed offences punishable under the pc act. 30. sections 3 ( 1 ) ( a ) and ( b ), it may be noted, deal with only the offences punishable under the pc act and not any offence punishable under ipc or any other law and section 4 ( 1 ) of the pc act makes it more explicit. 31. section 4 ( 1 ) of the pc act has used a non - abstante clause. it says, notwithstanding anything contained in the code of criminal procedure, 1973 ( 2 of 1974 ) or in any other law for the time being in force, the offences specified in sub - section ( 1 ) of section 3 shall be tried by special judges only. consequently, the offences referred to in section 3 ( 1 ) cannot be tried by the ordinary criminal court, since jurisdiction has been specifically conferred on a special judge appointed under section 3 ( 1 ) of the pc act. sub - section ( 2 ) of section 4 also makes it clear, which says that every offence specified in sub - section ( 1 ) of section 3 shall be tried by the special judge for the area within which it was committed, or, as the case may be, by the special judge appointed for the case, or, where there are more special judges than one for such area, by such one of them as may be specified in this behalf by the central government. a conjoint reading of section 3 ( 1 ) along with sections 4 ( 1 ) and ( 2 ) would make it amply

clear that only the special judge has got the jurisdiction to try the offences specified in sub - section ( 1 ) of section 3 committed by a public servant or a non - public servant, alone or jointly. 32 we may now examine the scope of sub - section ( 3 ) of section 4 of the pc act, which indicates that when trying any case, which means trying any case relating to the offences referred to in section 3 ( 1 ) ( a ) and ( b ) of the pc act for which exclusive jurisdiction is conferred on the special judge. a special judge, while exercising, exclusive jurisdiction, that is, when trying any case relating to offences under sections 3 ( 1 ) ( a ) and ( b ) of the pc act, may also try any offence other than the offence specified in section 3, with which the accused may, under the code of criminal procedure, 1973 be charged at the same trial. an accused, in a given case, may be charged under the code of criminal procedure on an offence being committed under the ipc and the offence specified in section 3 of the pc act. criminal cases that can be tried by a special judge are under the pc act and also for the charges under ipc or any other legislation. conspiracy to commit any offence either under the pc act or under the ipc is a separate offence, has to be separately charged and tried. for example, the conspiracy to commit offence punishable under the pc act itself is an offence to be tried only by a special judge. in ajay aggarwal v. union of india ( 1993 ) 3 scc 609, the court held as follows : 33. reference may also be made to the judgments of this court in sanichar sahni v. state of bihar ( 2009 ) 7 scc 198 and mohd. arif v. state ( nct of delhi ) ( 2011 ) 13 scc 621. 34. in other words, an accused person, either a public servant or non - public servant, who has been charged for an offence under section 3 ( 1 ) of the pc act, could also be charged for an offence under ipc, in the event of which, the special judge has got the jurisdiction to try such offences against the public servant as well as against a non - public servant. the legal position is also settled by the judgment of this court in vivek gupta v. cbi and another ( 2003 ) 8 scc 628, wherein this court held that a public servant who is

charged of an offence under the provisions of the pc act may also be charged by the special judge at the same trial of any offence under ipc if the same is committed in a manner contemplated under section 220 of the code. this court also held, even if a non - public servant, though charged only of offences under section 420 and section 120b read with section 420 ipc, he could also be tried by the special judge with the aid of sub - section ( 3 ) of section 4 of the pc act. we fully endorse that view. 35. we are, however, in criminal appeal no. 161 of 2011, concerned with a situation where no charge has been framed against the public servant, while he was alive, under section 3 ( 1 ) nor any charge was framed against a private person for any offence under section 3 ( 1 ) of the pc act. the special judge, therefore, had no occasion to try any case under section 3 ( 1 ) of the pc act, either against a public servant or a private person, so as to try any offence other than an offence specified in section 3, meaning thereby, non - pc offences against private person, like the appellant. 36. the special judge appointed under section 3 ( 1 ) could exercise the powers under sub - section ( 3 ) to section 4 to try non - pc offence. therefore, trying a case by a special judge under section 3 ( 1 ) is a sine - qua - non for exercising jurisdiction by the special judge for trying any offence, other than an offence specified in section 3. trying any case under section 3 ( 1 ) is, therefore, a jurisdictional fact for the special judge to exercise powers to try any offence other than an offence specified in section 3. 37. exclusion of the jurisdiction of ordinary criminal court, so far as offences under the pc act are concerned, has been explicitly expressed under section 4 ( 1 ) of the pc act, which does not find a place in respect of non - pc offences in sub - section ( 3 ) of section 4 of the pc act. further, it is not obligatory on the part of a special judge to try non - pc offences. the expression may also try gives an element of discretion on the part of the special judge which will depend upon the facts of each case and the inter - relation between pc offences and non - pc offences. 38. a special judge exercising powers under the pc act is not expected to try non - pc

offences totally unconnected with any pc offences under section 3 ( 1 ) of the pc act and in the event of a special judge not trying any offence under section 3 ( 1 ) of the pc act, the question of the special judge trying non - pc offences does not arise. as already indicated, trying of a pc offence is a jurisdictional fact to exercise the powers under sub - section ( 3 ) of section 4. jurisdiction of the special judge, as such, has not been divested, but the exercise of jurisdiction, depends upon the jurisdictional fact of trying a pc offence. we are, therefore, concerned with the exercise of jurisdiction and not the existence of jurisdiction of the special judge. 39. the meaning and content of the expression jurisdictional fact has been considered by this court in carona ltd. v. parvathy swaminathan & sons ( 2007 ) 8 scc 559, and noticed that where the jurisdiction of a court or a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collective to the merits of the issue. existence of a jurisdictional fact is thus a sine qua non or condition precedent to the assumption of jurisdiction by a court. in ramesh chandra sankla v. vikram cement & ors. ( 2008 ) 14 scc 58, this court held that by erroneously assuming existence of the jurisdictional fact, a court cannot confer upon itself jurisdiction which otherwise it does not possess. 40. we have already indicated that the jurisdictional fact so as to try non - pc offences is trying any case under the pc act. as noticed by this court in ratilal bhanji mithani v. state of maharashtra ( 1979 ) 2 scc 179, the trial of a warrant case starts with the framing of charge. prior to that the proceedings are only an inquiry. the court held as follows : - 41. we may now examine whether, in both these appeals, the above test has been satisfied. first, we may deal with criminal appeal no. 943 of 2008. cbi, in this appeal, as already indicated, submitted the charge - sheet on 1. 11. 2001 for the offences against a - 1, who is a public servant, as well as against non - public servants. learned special judge had, on 25. 3. 2003, framed the charges against the accused persons under section 120b read sections with 467,

471 and 420 ipc and also under sections 13 ( 1 ) ( d ) and 13 ( 2 ) of the pc act and substantive offences under sections 420, 467 and 471 ipc and also substantive offences under sections 13 ( 1 ) ( d ) and 13 ( 2 ) of the pc act against the public servants. therefore, charges have been framed against the public servants as well as non - public servants after hearing the prosecution and defence counsel, by the special judge on 25. 3. 2003 in respect of pc offences as well as non - pc offences. as already indicated, under sub - section ( 3 ) of section 4, when trying any case, a special judge may also try any offence other than the offence specified in section 3 and be charged in the same trial. the special judge, in the instant case, has framed charges against the public servant as well as against the non - public servant for offences punishable under section 3 ( 1 ) of pc act as well as for the offences punishable under section 120b read with sections 467, 471 and 420 ipc and, therefore, the existence of jurisdictional fact that is trying a case under the pc act has been satisfied. 42. the special judge after framing the charge for pc and non - pc offences posted the case for examination of prosecution witnesses, thereafter the sole public servant died on 2. 6. 2003. before that, the special judge, in the instant case, has also exercised his powers under sub - section ( 3 ) of section 4 of the pc act and hence cannot be divested with the jurisdiction to proceed against the non - public servant, even if the sole public servant dies after framing of the charges. on death, the charge against the public servant alone abates and since the special judge has already exercised his jurisdiction under sub - section ( 3 ) of section 4 of the pc act, that jurisdiction cannot be divested due to the death of the sole public servant. 43. we can visualize a situation where a public servant dies at the fag end of the trial, by that time, several witnesses might have been examined and to hold that the entire trial would be vitiated due to death of a sole public servant would defeat the entire object and purpose of the pc act, which is enacted for effective combating of corruption and to expedite cases related to corruption and bribery. the purpose of the pc act is to make anti - corruption laws more effective in order to expedite the proceedings, provisions for day -

to - day trial of cases, transparency with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been provided under the pc act. consequently, once the power has been exercised by the special judge under sub - section ( 3 ) of section 4 of the pc act to proceed against non - pc offences along with pc offences, the mere fact that the sole public servant dies after the exercise of powers under sub - section ( 3 ) of section 4, will not divest the jurisdiction of the special judge or vitiate the proceedings pending before him. 44. we are, therefore, inclined to allow criminal appeal no. 943 of 2008 and set aside the order of the high court and direct the special judge to complete the trial of the cases within a period of six months. 45. we may now examine criminal appeal no. 161 of 2011, where the fir was registered on 2. 7. 1996 and the charge - sheet was filed before the special judge on 14. 9. 2001 for the offences under sections 120b, 420, ipc read with sections 13 ( 2 ) and 13 ( 1 ) of the pc act. accused 9 and 10 died even before the charge - sheet was sent to the special judge. the charge against the sole public servant under the pc act could also not be framed since he died on 18. 2. 2005. the special judge also could not frame any charge against non - public servants. as already indicated, under sub - section ( 3 ) of section 4, the special judge could try non - pc offences only when trying any case relating to pc offences. in the instant case, no pc offence has been committed by any of the non - public servants so as to fall under section 3 ( 1 ) of the pc act. consequently, there was no occasion for the special judge to try any case relating to offences under the pc act against the appellant. the trying of any case under the pc act against a public servant or a non - public servant, as already indicated, is a sine - qua - non for exercising powers under sub - section ( 3 ) of section 4 of pc act. in the instant case, since no pc offence has been committed by any of the non - public servants and no charges have been framed against the public servant, while he was alive, the special judge had no occasion to try any case against any of them under the pc act, since no charge has been framed

prior to the death of the public servant. the jurisdictional fact, as already discussed above, does not exist so far as this appeal is concerned, so as to exercise jurisdiction by the special judge to deal with non - pc offences. 46. consequently, we find no error in the view taken by the special judge, cbi, greater mumbai in forwarding the case papers of special case no. 88 of 2001 in the court of chief metropolitan magistrate for trying the case in accordance with law. consequently, the order passed by the high court is set aside. the competent court to which the special case no. 88 of 2001 is forwarded, is directed to dispose of the same within a period of six months. criminal appeal no. 161 of 2011 is allowed accordingly. eard hear.. j. ( k. s. radhakrishnan ) eard hear.. j. ( a. k. sikri ) new delhi, february 05, 2014.

v. gopala gowda, j. this appeal is filed by the appellant against the judgment dated 07. 01. 2011 and order on sentence dated 08. 03. 2011 passed in criminal appeal no. 337 of 1999 by the high court of delhi, whereby the high court reversed the order of acquittal dated 11. 03. 1999 recorded by the trial court in c. c no. 19 of 1993 and convicted the appellant for the offence punishable under section 7 of the prevention of corruption act, 1988 ( hereinafter referred to as the act ) with rigorous imprisonment for one year and a fine of rs. 50, 000 / -, in default of payment of fine, to further undergo three months simple imprisonment. the appellant has prayed for allowing the appeal by setting aside the impugned judgment of the high court and to acquit him from the charge urging various facts and grounds in support of the questions of law framed in this appeal. 2. for the purpose of considering the rival legal contentions urged by the learned counsel for the parties and with a view to find out whether this court is required to interfere with the impugned judgment and order of conviction and sentence of the high court, the necessary facts are briefly stated hereunder : the complainant, ramesh suri ( pw - 2 ), was running a business of import and export of buttons, zips, etc. in the name and style of m / s erica enterprises. it is alleged that the appellant along with his colleague p. s. saini ( both inspector customs ( preventive ) ) visited the office cum godown of the complainant ( pw2 ) on 4. 07. 1989 and that p. s. saini demanded a bribe of rs. 2 lakhs from the complainant, one lakh each for himself and the accused as the articles kept in the godown were notified goods and since his firm was not a notified dealer, the complainant has violated the provisions of customs act, 1962. 3. further, on 07. 07. 1989, it is alleged by the prosecution that the appellant telephonically contacted the complainant ( pw - 2 ) and reiterated the demand as made by p. s. saini. during the time of telephonic conversation, the brother - in - law of the complainant ram malhotra was sitting with him. the complainant said only an amount rs. 60, 000 / - could be arranged by him and the same was delivered at the residence of the appellant on 08. 07. 1989

at 8. 00 a. m. as the rest of the amount would be arranged within 3 - 4 days and will be paid to the appellant. 4. it is alleged that on the written complaint lodged in the cbi office and on the directions of the deputy superintendent of police a raid was conducted in the house of the appellant with the help of the complainant and a shadow witness ( pw - 3 ), the appellant was arrested on 8. 7. 1989. the charge sheet was filed by the prosecution under section 173 cr. p. c. before the court of special judge on the basis of which it has framed the charges against the appellant for trial for offences punishable under sections 7 and 13 ( 2 ) read with section 13 ( 1 ) ( d ) of the act. 5. the trial court after evaluating the evidence on record has come to the conclusion and held that the prosecution had failed to prove the guilt of the accused under sections 7 and 13 ( 2 ) read with section 13 ( 1 ) ( d ) of the act and recorded the acquittal of the appellant from the charges vide its judgment and order dated 11. 03. 1999. 6. the respondent - prosecution, aggrieved by the judgment and order of the trial court has filed an appeal before the high court of delhi urging various grounds. after hearing the learned counsel for the parties, the high court vide its judgment and order dated 07. 01. 2011 reversed the order of acquittal recorded by the trial court and convicted the appellant for the offence punishable under section 7 of the act. the correctness of the same is challenged in this appeal by the appellant by raising certain legal questions and urging grounds in support of the same. 7. it is contended by mr. altaf ahmed, the learned senior counsel appearing on behalf of the appellant that p. s. saini on all the occasions demanded the bribe money from the complainant but he was neither arrayed as accused nor examined as witness by the prosecution in the case. further, he submits that recovery memo exh. pw - 2 / d is not proved because neither its author deputy superintendent of police, darshan singh was available nor the signatures of the other witnesses on the said memo have been proved. therefore, recovery of money from the appellant alleged to have been paid to him by the complainant - pw - 2 is not proved by the prosecution. it is urged by him that the further lacuna in the prosecution case is that ram malhotra, the brother - in - law of the complainant, who

was stated to be present at the time of the telephonic demand made by the accused with the complainant was examined by the prosecution. the prosecution could neither prove the demand and acceptance of the gratification by the appellant nor were they able to prove conscious possession of the black rexine bag containing the gc notes with him. therefore, the alleged recovery of money cannot be stated to be acceptance of illegal gratification by the appellant as alleged by the prosecution. 8. it has been further submitted by the learned senior counsel for the appellant that the appellate court in exercise of its appellate jurisdiction has erroneously re - appreciated the evidence produced by the prosecution and has set aside the valid finding of fact recorded by the learned trial judge on the charges framed against the appellant. therefore, the finding recorded on this aspect of the matter in the impugned judgment by the appellate court is not only erroneous on facts but in law, therefore, the same is liable to be set aside. further, it is contended by him that the learned appellate judge has not noticed a very important lacuna in the prosecution case that as per the evidence of pw - 2 and pw - 3 rameshwar nath, the bribe money which was sought to be given to the accused on 08. 07. 1989 in a black rexine bag and not in the brown bag as shown to the prosecution witnesses by the learned counsel for the prosecution. 9. he has further urged that the appellate court can exercise its jurisdiction in exceptional circumstances where there are compelling circumstances and the judgment under appeal is found to be perverse. in support of the aforesaid legal submission he placed reliance upon the decision of this court in the case of babu v. state of kerala, [ 1 ] wherein it has been categorically held that : the presumption of innocence of the appellant is further strengthened by the order of acquittal recorded by the trial judge on proper appreciation of evidence on record. he had the occasion to examine the demeanor of the prosecution witnesses. the trial court came to the right conclusion on facts and evidence on record and it has recorded a finding of fact holding that the accused is innocent of the charges leveled against him and consequently acquitted him from the said charges. it is further submitted by the learned senior counsel that the appellate court could only interfere in rare cases where it is found that the order of acquittal is erroneous or error in law. therefore, he submits that the high court should not have interfered with the judgment and order of the trial court. the learned senior counsel for the appellant has further

placed reliance on the following judgments of this court, namely, 1 ) state of kerala & anr. v. c. p. rao [ 2 ], 2 ) murugesan & ors. v. state through inspector of police [ 3 ] in support of his submission that the high court has exceeded its parameters laid down by this court in reversing the judgment and order of acquittal of the accused. the relevant paragraphs from the above judgments are extracted in the answering portion of the contentious points. 10. the learned senior counsel further submits that presumption of offence committed by the appellant under section 20 of the act can be invoked against him by the prosecution, only if the prosecution successfully proves the foundational facts. in the case in hand, since the demand, acceptance of bribe money and recovery of the same from him has not been proved by the prosecution, the statutory presumption under section 20 of the act against the guilt of the accused does not arise and therefore rebuttal of such presumption by the appellant also did not arise in this case. 11. the other legal contention urged by the learned senior counsel is that mere recovery of the alleged tainted money without there being any demand and acceptance by the appellant from the complainant does not prove the guilt of the appellant. in support of his aforesaid legal submission, he has placed reliance upon the following decisions of this court : ( 1 ) k. s. panduranga vs. state of karnataka [ 4 ] ( 2 ) subash parbat sonvane vs. state of gujarat [ 5 ] and ( 3 ) mukut bihari & anr. vs. state of rajasthan [ 6 ]. in mukut bihari & anr., this court has held thus : 11. the law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 act. mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under section 20 of the 1988 act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability,

that the money was accepted by him, other than as a motive or reward as referred to in section 7 of the 1988 act. while invoking the provisions of section 20 of the act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. however, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. the complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for [ pic ] independent corroboration before convicting the accused person. 12. the learned senior counsel for the appellant has further contended that mere recovery by itself cannot prove the charge against the accused and placed reliance upon the decision of this court in c. m. girish babu vs. cbi, cochin, high court of kerala [ 7 ]. the relevant paragraph is extracted in the reasoning portion. 13. in view of the aforesaid legal contentions urged by the learned senior counsel he has prayed this court to set aside the impugned judgment and order of the high court and restore the trial court judgment and order by allowing this appeal. 14. on the other hand, the learned counsel for the respondent dr. ashok dhamija has strongly relied upon the version of pw - 3, who is an independent witness and sought to justify the impugned judgment and order as the high court has rightly reversed the judgment and order of acquittal passed by the trial court. it has been urged by the learned counsel for the respondent that even though the complainant - pw2 has turned hostile in the case he has admitted his version in the cross - examination and corroborated the evidence of pw - 3. 15. further, the learned counsel for the respondent has contended that the complainant, pw - 2 called pw - 3 inside the residence of the accused introducing him as his uncle. when pw - 3 went inside, the appellant enquired with the complainant if he had brought the money. pw - 2, thereafter asked if there was anything to worry about and whether his work would be done. pw - 2 handed over the handbag containing the notes towards gratification to the accused who touched the notes with his right hand and placed the

hand bag containing the money on the cot made up of steel. thus, the demand and acceptance of gratification by the appellant from the complainant is duly proved by the witness - pw3. 16. further, he has contended that the testimony of pw - 3 is corroborated by the testimony of pw - 4 r. s. manku, the deputy superintendent of police who had conducted the trap and also pw - 8 a. s. chhabra, the senior scientific officer who gave the report that the right hand wash solution of the appellant gave positive test for phenolphthelin and sodium. therefore, the fact that the money was demanded and given to the appellant for illegal gratification, which fact is further corroborated by another fact that money was withdrawn from the bank account of pw - 2 who has clearly deposed about it before the court in his evidence. 17. the high court has concluded on the material evidence on record and held that the reasons of the trial court on the charge against the appellant is erroneous ; stating that, at the time of demand, normally nobody else, except the complainant - pw2 would be present. therefore, rejecting his testimony by the trial court for want of corroboration of his evidence by recording the findings of fact by him stating that it was unsafe to rely on the sole testimony of the complainant - pw - 2, to convict the appellant would be contrary to the settled principles of appreciation of evidence on record. 18. further, the findings of the trial court that there was no motive for the appellant to demand the gratification from the complainant as sudan, the custom ( supdt. ) had satisfied himself that the complainant had valid documents in support of his claim and that he was not a notified dealer is also perverse as the complainant, pw - 2 in his testimony has clearly stated that the money was given to the appellant so that no harassment would be caused to him in his business in future. 19. it has been further held by the high court that the trial court has also failed to apply the settled legal principles of law laid down by this court. the trial court has erred in not accepting the testimony of a hostile witness - pw2, his evidence cannot be treated as effaced or washed off the record altogether ; part of his evidence which is otherwise acceptable could have been acted upon at the time of recording his findings on the charges. 20. further, it is urged by him that it has been

further held by the high court that since the illegal gratification is large, the same could not have been accepted by the appellant as cash - in - hand and the same was handed over to him by keeping in bags, suitcases, etc which can never be recovered from the person of an accused. 21. the high court further held that once demand and acceptance by the accused has been proved then the statutory presumption under section 20 of the act arises against him and the onus of proof shifts on him to rebut the presumption by adducing acceptable evidence to prove that he is not guilty of offence. in support of the aforesaid contention, the decision of this court in the case of m. narsinga rao v. state of andhra pradesh, [ 8 ] was relied upon wherein it was held thus : 22. the high court further held that in view of the presumption as envisaged under section 20 of the act, it was the duty of the accused to have rebutted the same by producing cogent evidence on record. the accused has failed to discharge that onus. no doubt as held in the case of subash parbat ( supra ) ; the statutory presumption cannot be raised for an offence u / s 13 ( 1 ) ( d ) of the act. however, for an offence under section 7 of the act this presumption would arise. 23. on the basis of the aforesaid rival legal contentions urged on behalf of the parties, the following points would arise for consideration of this court. 1 ) whether the demand, acceptance and recovery of gratification are proved by the prosecution and whether the presumption of offence alleged to have been committed by the appellant would arise in this case? 2 ) whether the findings and reasons recorded on the charges by the high court in reversing the findings of acquittal recorded by the trial court are based on proper re - appreciation of legal evidence on record and within the legal parameters laid down by this court in its decisions? 3 ) what order? 24. the point nos. 1 and 2 are inter - related and therefore, the same are answered together by assigning the following reasons : the learned senior counsel on behalf of the appellant has rightly placed reliance upon the evidence elicited in the cross examination of pw - 2 by the prosecutor. the relevant portion from translation of deposition of pw - 2 made by appellant is extracted hereunder : 25. during the cross - examination of pw - 2, he has stated that the demand of rs. 2 lakh

##s was made by p. s. saini on 4. 7. 1989 at his godown between 11. 30 to 12. 30 p. m. on the very same day, he was taken to office of customs department where saini demanded the money at two places i. e. firstly just outside the office of superintendent and secondly, at the staircase of the office building and on both the occasions, the accused had not demanded the money from the complainant, pw - 2 at any time. it has been further stated by him during his cross - examination that on both the occasions, the accused was at a distance of three - four feet. it has been further stated by him that he did not have any direct talk with the accused either at the c. r. building or at his godown. he has further stated that he had met the accused only once, so he had neither conversant with the voice of the accused nor knows his style of talking. 26. it has been further stated by pw - 2 in his evidence that, when he had gone to the house of the accused along with the punch witness, during the entire conversation, there was no talk about the contents of the rexine bag which he was carrying and neither did the accused enquire about the money nor received the same from the complainant. 27. further, the learned senior counsel for the appellant has rightly placed reliance upon the questions put to the appellant by the court seeking the explanation from him under section 313, crpc which reads thus : 28. the learned senior counsel on behalf of the appellant has further rightly placed reliance upon the letter written by pw - 2 exh. pw - 1 / da dated 15. 11. 1989 to the collector of customs, which reads thus : 9, inspector, cbi, is extracted hereunder : 29. it is clear from the contents of the aforesaid documentary evidence on record upon which appellant has rightly placed strong reliance that he is innocent is evident from the version of the investigating officer pw - 9, who had examined those witnesses at the time of the investigation of the case. they have stated that initially this case was recommended for being sent for departmental action and not for criminal prosecution against the appellant. the said evidence would clearly go to show that there is no case of illegal gratification either demanded by him or paid to him by the complainant pw - 2. this important aspect of the matter has been over - looked by the high court at the

time of exercising its appellate jurisdiction for setting aside the order of acquittal passed in favour of the appellant. in fact, the trial court on proper appreciation of both oral and documentary evidence particularly the contents of the said letter - ex. pw - 1 / da as admitted by pw - 9 was considered by him and come to the right conclusion to hold that the appellant is not guilty of the offence and rightly passed the order of acquittal which has been erroneously reversed by the high court as the same is contrary to the laws laid down by this court in the cases referred to supra which relevant paragraphs are extracted while adverting to the submissions of the learned senior counsel for the appellant. therefore, this court has to hold that the high court has exceeded its jurisdiction by not adhering to the legal principles laid down by this court in reversing the judgment and order of the trial court in exercise of its appellate jurisdiction. 30. further, the learned senior counsel for the appellant has relied upon the statement of pw - 3 who in his testimony has stated thus : 31. the learned counsel for the prosecution has also relied upon the case of c. k. damodaran nair vs. government of india [ 9 ] in support of presumption of offence alleged against the appellant which reads thus : 32. this court, in k. s. panduranga s case ( supra ) has held that the demand and acceptance of the amount of illegal gratification by he accused is a condition precedent to constitute an offence, the relevant paragraph in this regard from the above - said decision is extracted hereunder : 33. the learned senior counsel for the appellant has also placed reliance upon the case of banarsi das referred to supra wherein it was held that : 8. it is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. in all such type of cases of bribery, two aspects are important. firstly, there must be a demand and [ pic ] secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. mere demand by itself is not sufficient to establish the offence. therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. the above -

said paragraph from the above mentioned case would go to show that the divergent findings recorded by the high court on the factum of demand and acceptance of illegal gratification by the appellant is not proved in this case. in the said case this court in unequivocal terms has held that mere demand by itself is not sufficient to establish the offence under the act. the other aspect, namely acceptance is also very important. there must be clinching evidence with the tacit approval of the accused that money was put by pw - 2 on the steel cot as stated by him in his evidence as illegal gratification. in the case in hand, as per the evidence of pw - 2 and pw - 3, the illegal gratification was in a black rexine bag with a broken zip which was put on a steel cot. as the contents of the bag were not within the knowledge of the accused, therefore, the relevant aspect of the case that the appellant has accepted the illegal gratification as required under section 7 of the act is not proved by the prosecution by adducing cogent evidence in this regard. 34. we have examined the evidences on record as a whole, the said evidence is read along with documentary evidence of exh. pw - 1 / da, the contents of which are extracted above. the said document is written by pw - 2 in the year 1989, therefore, reliance should be placed on the said evidence. the explanation which is sought to be elicited from the appellant by the prosecution to discard the said positive evidence in favour of the appellant would further support his plea that he has not demanded gratification from the complainant, pw - 2. we are not at all impressed with the plea of the prosecution that the said letter was written by pw - 2 under pressure as stated by him in his cross examination in the year 1993. if it is true that the letter was written by pw - 2 under pressure, then he should have lodged the complaint in this regard with the jurisdictional police or to the higher officers at that relevant point of time or to the trial court when the case was pending. therefore, the said portion of the evidence of pw - 2 cannot be accepted by us as the same is untrustworthy. the black rexine bag containing the illegal gratification which was kept on the steel cot at the residence of the accused on 08. 07. 1989 was not recovered from the person of the accused. therefore, neither acceptance nor recovery of illegal gratification from the appellant

is proved. further, the reliance placed upon the relevant paragraphs extracted above from the judgments of this court by the learned senior counsel on behalf of the appellant applies aptly to the factual situation. therefore, the demand, acceptance and recovery of the illegal gratification alleged to have been paid to the appellant is not proved by the prosecution. thus, the trial court on overall appreciation of the oral and documentary evidence on record has come to the right conclusion and recorded its findings of fact and held that the demand, acceptance and recovery of gratification from the appellant is not proved, therefore there is no presumption under section 20 of the act. the learned trial judge in his judgment has rightly held that presumption of innocence is in favour of the appellant and he was acquitted on merits. 35. the evidence of pw - 3, who is an independent witness, who had participated in the proceedings of the raid at the appellant s house, the relevant portion of his deposition before the trial court is extracted hereunder : 36. the prosecution has placed reliance upon the judgment of this court viz. state of madras v. a vaidhyanatha iyer [ 10 ] in support of the prosecution to justify the findings and reasons recorded by the high court on the charges leveled against the appellant, to reverse the acquittal and to convict and sentence him for the offence, the relevant portion from the above referred case reads thus : it is a presumption of law and therefore it is obligatory on the court to raise this presumption in every case brought under section 4 of the prevention of corruption act because unlike the case of presumption of fact, presumptions of law constitute a branch of jurisprudence. while giving the finding quoted above the learned judge seems to have disregarded the special rule of burden of proof under section 4 and therefore his approach in this case has been on erroneous lines. it is rightly contended by the learned senior counsel on behalf of the appellant that the presumption of the guilt is not proved in the case on hand as the prosecution has failed to prove the ingredients of the provision of section 7 of the act, viz. demand and acceptance of illegal gratification by the appellant to constitute an offence alleged to have committed by him. therefore, the reliance placed on the evidence of prosecution witnesses i. e. pw - 2, pw - 3 and others by the respondent s counsel, the relevant portion of which is extracted in the aforesaid portion of the judgment, does not amount to presumption of offence as provided under section 20 of the act. therefore, the question

of onus of proof to disprove the presumption did not arise at all on the part of the appellant. 37. the high court in exercise of its appellate jurisdiction has exceeded its parameters laid down by this court in reversing the acquittal order of the trial court. therefore, the findings are not only erroneous in law but also vitiated in law. the relevant paragraphs from the judgment in state of kerala v. c. p. rao ( supra ) are extracted hereunder : 38. further, as contended by the learned senior counsel for the appellant, the high court has not noticed the very important lacuna in the prosecution case that as per the evidence of pw - 2 and pw - 3 rameshwar nath, the bribe money which was sought to be given to the accused on 08. 07. 1989 was in a black rexine bag and not in the brown rexine bag as shown to the witnesses before the trial court by the prosecution. it has further come to our notice that neither the two witnesses nor the c. b. i. officials put any signature or identification mark on the bottles containing solution which is the most crucial evidence in the case to prove the acceptance of the gratification by the appellant from the complainant. as per the statements of pw - 2 and c. b. i. officials, the gc notes were not counted. however, it is a matter of serious doubt of acceptance the notes containing in the black rexine bag were touched by the accused. the aforesaid findings and reasons recorded by the high court are supported with the statements of law laid down by this court in c. m. girish babu ( supra ) upon which the learned senior counsel on behalf of the appellant has rightly placed reliance. the relevant paragraph is extracted below : 39. after careful observation of the above - mentioned facts and evidence on record and on careful examination of the aforesaid rival legal contentions urged on behalf of the parties, with reference to the extracted portion of the evidence of pw - 2, pw - 3 and pw - 9, we are of the considered view that the prosecution has failed to prove the demand and acceptance of illegal gratification by the appellant from the complainant pw - 2, upon whose evidence much reliance has been placed by the learned counsel for the respondent. 40. we, accordingly answer the point no. 2 in favour of the appellant that exercise of appellate jurisdiction by the high court to reverse the judgment and order of acquittal is not only erroneous but also suffers from error in law

and liable to be set aside. accordingly, we answer the point nos. 1 and 2 in favour of the appellant. point no. 3. 41. we have answered the point nos. 1 and 2 in favour of the appellant after adverting to the legal evidence and rival legal contentions urged on behalf of the parties. we have arrived at the aforesaid conclusions after accepting the well founded submissions made by the learned senior counsel on behalf of the appellant. in view of our findings and reasons on point nos. 1 and 2, the submissions made by the learned counsel on behalf of the respondent are rejected as the same are wholly untenable in law. for the foregoing reasons, we have to restore the judgment and order of acquittal of the trial court by setting aside the impugned judgment dated 07. 01. 2011 and order on sentence dated 08. 03. 2011 of the high court of delhi in criminal appeal no. 337 of 1999. 42. accordingly, the appeal is allowed. the appellant is on bail. the bail bonds shall stand discharged.

1. this special leave petition has been filed against the impugned judgment and order dated 22. 7. 2011, passed by the high court of judicature at patna in criminal misc. no. 13116 of 2009 quashing the criminal proceedings against the respondent no. 2 while allowing the application under section 482 of the code of criminal procedure, 1973 ( hereinafter referred to as cr. p. c. ). 2. facts and circumstances giving rise to this petition are that : a. the petitioner claimed to have been appointed by the private respondent no. 2 in a fake dental college as a senior lecturer for a period of one year and issued 12 post dated cheques for payment of his salary out of which 9 cheques had bounced. the complainant - petitioner sent legal notice to the respondent no. 2 but without giving them sufficient time to file a reply, filed a complaint before the magistrate at danapur, patna under sections 34, 403, 404, 406, 408, 418, 420 and 504 of the indian penal code, 1860 ( hereinafter referred to as ipc ) and under section 138 of negotiable instrument act, 1881 ( hereinafter referred to as ni act ). b. learned magistrate, danapur vide an order dated 12. 5. 2008 summoned the private respondent for appearance on 12. 6. 2008, being prima facie of the view that a case under sections 406, 420 ipc and under section 138 of ni act was made out by the petitioner. the private respondent challenged the said order by filing the petition before the high court which has been allowed vide impugned judgment and order on various grounds, inter - alia that there was an agreement between the parties for service for one year and one of the conditions in the agreement was that the petitioner would not resign from the institute till the completion of 3 years. more so, the petitioner did not even give sufficient time to the accused to respond to the legal notice as he filed the complaint within the close proximity of the date of the notice. the high court also concluded that there was nothing on record to show that the notice had ever been served upon the private respondent and ultimately allowed the said petition on the ground that it was a case of civil nature as it was a matter of recovery of salary. c. aggrieved, the petitioner approached this court making the averment in the petition that accused persons had been running a fake institution and offered the appointment to the petitioner on certain terms and in spite of working therein, he was not paid the salary. hence, this petition. 3

. in the instant case the counsel appearing in the court for the petitioner designated himself merely has a proxy counsel. the advocate - on - record ( for short aor ) had no courtesy to send, at least, a slip mentioning the name of the counsel who has to appear in the court. thus, in such a fact - situation, we had no advantage even to know the name of the counsel who was appearing in the court. 4. earlier, this court had issued notice to the petitioner himself to show cause that in case it was a fake institution, what was the reason or rationale for the petitioner to join the same and to continue to serve there for one year. in reply to the said show cause notice, the petitioner submitted that such pleadings be ignored and may not be taken into account for the purpose of disposal of the instant petition. we do not see any reason to allow a party to make a pleading in the petition and then make a submission to the court to ignore it as such an issue has no bearing on the merits of the case being totally irrelevant. pleadings have to be true to the knowledge of the parties and in case a person takes such misleading pleadings, he can be refused not only any kind of indulgence by the court but can also be tried for perjury. in case, the pleading taken by the petitioner is true, he cannot ask for ignoring the same. in case, it is false and as such statement had been made on oath, he is liable to be tried for perjury. more so, whether such a pleading is relevant or not is a matter to be decided by the court and under section 165 of the indian evidence act, 1872, court has a right to ask the party even relevant or irrelevant questions and the parties or their counsel cannot raise any objection to any such question. 5. in such a fact - situation, words fail us to condemn the audacity of the petitioner to tell the highest court of the land to ignore the pleadings taken by him. be that as it may, this court had insisted at the time of first round of hearing of this case that aor, shri manu shanker mishra should remain present in the court at the time of arguments and also passed over the matter for his appearance. in the second round, it was informed to us that the aor refused to come to the court. we take a very serious note of the conduct of this aor, particularly, in view of the judgment of this court in re : ram

##eshwar prasad goyal, ( 2014 ) 1 scc 572, wherein this court has categorically held that in case the aor does not appear in the court, his conduct may tantamount to criminal contempt of the court. in fact, a very few asor have spoiled the working system of the institution of asor who simply lend their signatures for petty amount. the aor involved herein is living in a fool s paradise if he thinks that he can play hide and seek with any court of law. in such a chaotic situation, any arzi, farzi, half - baked lawyer under the label of proxy counsel, a phrase not traceable under the advocates act, 1961 or under the supreme court rules, 1966 etc., cannot be allowed to abuse and misuse the process of the court under a false impression that he has a right to waste public time without any authority to appear in the court, either from the litigant or from the aor, as in the instant case. the aor, with impunity was disdainful towards the order of this court directing him to appear in the court. he had also not filed any appearance for the counsel who had appeared, nor the said counsel disclosed his name. the court takes serious note of the conduct of the aor, shri manu shanker mishra and warns him to behave in an appropriate manner befitting the conduct of an advocate and an aor otherwise this court will not hesitate to take action against him. his conduct will be under close watch of this court. 6. with the aforesaid observations, the petition stands dismissed....................... j. ( dr. b. s. chauhan )......................... j. ( j. chelameswar )......................... j. ( m. y. eqbal ) new delhi january 28, 2014. - - - - - - - - - - - - - - - - - - - - - - -