original jurisdiction writ petition number 429 of 1974. under
art. 32 of the companystitution of india. shiv pujan singh for the petitioner. s. chatterjee for the respondent. the judgment of the companyrt was delivered by
krishna iyer j.-shri s. p. singh appearing as amicus
curiae has urged a few points in support of his submission
that the petitioner detenu very poor and number fallen into
criminal companypany is entitled to be set free the order
being illegal. the obnumberious acts with futuristic import relating to the
detention have been set out in the grounds annexed to the
order and are repeated in the affidavit of the deputy
secretary home  special  department government of west
bengal based on the records available in the secretariat. the district magistrate of purulia nearly three long years
ago passed the order of detention against the petitioner on
february 2 1972 on receipt of materials regarding the pre-
judicial activities of the detenu and on being subjectively
satisfied of the need for the detention under s.3 of the
maintenance of internal security act 1971  act of 1971
 her r called the misa for short . the two criminal adventuress of the petitioner which
persuaded the district magistrate to prognumberticate about his
prejudicial activities were allegedly indulged in on
september 3 1971. the grounds of detention are that on
that date in two separate dramatic sallies the detenu and
his associates went armed with hacksaws lathis etc. and
what number companymitted theft of overhead companyper catenary wires
and certain other items from a place between anaka and
bagalia railway stations. on the first occasion which was
during broad daylight the miscreants were challenged by
the r. s. members but were scared away by the petitioner
and his gang repeated the theft of traction wire etc. at
stone throw. on the second occasion which was at about
mid-night about the same spot when resisted by the duty rpf
rakshaks with the help of villagers ballasts were pelted at
them by the violent in uders who made good their escape with
the gains of robbery. on these two frightful episodes the
detaining authority came to the requisite companyclusion about
danger to the companymunity which is recited in the order. the question is whether in the facts and circumstances of
the case the order can be impugned as companyorable or exercise
of power based on illusory or extraneous circumstances and
therefore void. an examination of the surrounding set of
facts serving as backdrop or basis becomes necessary to
appreciate the argument that the subjective satisfaction of
the authority did number stem from any real application of his
mind but as a ritualistic recital in a routine manner. it
is admitted in paragraph 6 of the companynter affidavit that the
two incidents were investigated as grps case number 1 and
number.2. the petitioner was arrested in companynection with the
said cases on september 9. 1971 and the police submitted a
final report in both the cases on january 6 1972 and
february 9 1972 respectively number because there was no
evidence against the petitioner but because the detenu-
petitioner being a dangerous person witnesses were afraid
to depose against him in open companyrt. it may be mentioned
here that the petitioners name was number in the fir but is
alleged to have been gathered in the companyrse of the
investigation. however be was discharged from the two
cases on february 9 1972 but was taken into custody the
same day pursuant to the detention order. thereafter the
prescribed formalities were followed and there is numberquarrel
about number-compliance in this statutory sequence. the crucial submission that deserves close study turns on
the companyorable nature or mindless manner of the impugned
order. what are the facts germane to this issue? it is
seen that the petitioners name is number in the first
information statements. had a companyrt occasion to adjudge the
guilt of an accused person charged with serious crime
committed in the presence of quasi-police officers and his
name is number seen in the earliest report to the police that
would have received adverse numberice unless explained. likewise the circumstance that the final report to the
court terminated the criminal proceedings may unless other
reasons are given militate against the implication of the
petitioner since s. 169 cr.p.c. refers to two situations one
of which at least nullifies possible inference of
incrimination i.e. that
there is numberreasonable ground of suspicion to justify the
forwarding of the accused to a magistrate. it behoves the
detaining authority to tell this companyrt how he reached his
mental result in the face of a release report by the
police. for the legal label that the satisfaction of the
executive authority about potential prejudicial activity is
subjective does number mean that it can be irrational to the
point of unreality. subjective satisfaction is actual
satisfaction nevertheless. the objective standards which
courts apply may number be applied the subject being more
sensitive but a sham satisfaction is numbersatisfaction and
will fail in companyrt when challenged under art. 32 of the
constitution. if material factors are slurred over the
formula of subjective satisfaction cannumber salvage the
deprivatory order. statutory immunumberogy hardly saves such
invalidity. after all the jurisprudence of detention
without trial is number the vanishing point of judicial review. the area and depth of the probe of companyrse is companyditioned
by the particular law its purpose and language. but our
freedoms axe number wholly free unless the judiciary have a
minimal look at their executive deprivation even though
under exceptional situations. we may here refer to what a bench of five judges of this
court observed in the vintage ruling rameshwar shaw 1
it is however necessary to emphasise in this
connection that though the satisfaction of the
detaining authority companytemplated by s. 3  1
 a  is the subjective satisfaction of the said
authority cases may arise where the detenu
may challenge the validity of his detention on
the ground of mala fides and in support of the
said plea urge that along with other which
show mala fides the companyrt may also companysider
his grievance that the grounds served on him
cannumber possibly or rationally support the
conclusion drawn against him by the detaining
authority. it is only in this incidental
manner and in support of the plea of
malafides that this question can become
justiciable otherwise the reasonableness or
propriety of the said satisfaction
contemplated by s. 3  1   a  cannumber be
questioned before the companyrts. back to the facts. of companyrse the mere circumstance that
the aim of the petitioner was gathered in the companyrse of the
investigation is neither here number there and cannumber help him
in the tall companytention that for that reason the order of
detention is a make-believe. the companyspectus of
circumstances placed before the authority and his rational
response having regard to the duty to immobilise dangerous
delinquents from molesting the companymunity-these are pertinent
factors to decode the responsible reality of the
satisfaction although number the plenary rightness of the
detention order. there are a few vital facts which loom large in this
context. one is that companyrt discharged the accused the
reason alleged in the companynter being that
1964 4 s.c.r. 921 926.
the police submitted final report in those
cases on 6-1-72 and 9-2-72 respectively number
because there was numberfacts which show
malafides the companyrt may also companysider his
evidence against the petitioner but because
the detenu petitioner being a dangerous person
witnesses were afraid to depose against him in
open companyrt. what is the impact of a discharge of the accused by the
criminal companyrt based on police reports on the validity of
the detention order against the same person based on the
same charge in the companytext of a companytention of a number-
application of the authoritys mind ? the two jurisdictions
are different the two jurisprudential principles diverge
the objects of enquiry and nature of mental search and
satisfaction in the two processes vary. the argument that
detention without trial for long spells as in this
instance is undemocratic has its limitations in modern
times when criminal individuals hold the companymunity to ran-
som although vigilant check of executive abuse becomes a
paramount judicial necessity. we as judges and citizens
must remember that in law as in life the dogmas of the
quiet past are number adequate to the demands of the stormy
present and the philosophy and strategy of preventive
detention has companye to stay. we may merely observe that we
are number legally impressed with companynsels persistent point
that solely or mainly because the petitioner has been
discharged in the two criminal cases he is entitled to be
enlarged from preventive captivity. even so it does number follow that the extreme view propounded
by the companynsel for the state that the termination of the
proceedings in a criminal case on identical facts is of no
consequence is sound. in this companynection we may draw
attention to a few decisions of this companyrt cited at the bar. chandrachud j. speaking for the companyrt recently observed in
srilal shaw v. the state of west bengal 1  dealing with a
situation somewhat like the one in this case thus
this strikes us as a typical case in which
for numberapparent reason a person who companyld
easily be prosecuted under the punitive laws
is being preventively detained. the railway
property  unlawful possession  act 29 of
1966 companyfers extensive powers to bring to
book persons who are found in unlawful
possession of railway property. the first
offence is punishable with a sentence of five
years and in the absence of special and
adequate reasons to be mentioned in the
judgment the imprisonment shall number be less
than one year. when a person is arrested for
an offence punishable under that act officers
of the railway protection force have the power
to investigate into the alleged offence and
the statements recorded by them during the
course of investigation do number attract the
provisions of section 162 criminal procedure
code.  see criminal appeal number 156 of 1972
decided on 23-8-1974 . if the facts stated in
the ground are true this was an easy case to
take to a successful termination. we find it
impossible of accept that the prosecution
could number be proceeded with as the witnesses

writ petition number 453 of 1974 decided
on 4-12-74.
were afraid to depose in the public against
the petitioner. the sub-inspector of police
who made the panchnavna we hope companyld
certainly number be afraid of giving evidence
against the petitioner. he had made the
panchnama of seizure openly and to the
knumberledge of the petitioner. besides if the
petitioners statement was recorded during the
course of investigation under the act of 1966
that itself companyld be relied upon by the
prosecution in order to establish the charge
that the petitioner was in unlawful possession
of rail- way property.  emphasis ours
again in numberrchands case 1  gupta j.
delivering judgment for companyrt held
we do number think it can be said that the fact
that the petitioner was discharged from the
criminal cases is entirely irrelevant and of
numbersignificance it is a circumstance which
the detaining authority cannumber altogether
disregard. in the case of bhut nath mate v.
state of west bengal  air 1974 sc 806  this
court observed
. detention power cannumber be quietly used to
subvert supplant or to substitute the
punitive law of the penal companye. the immune
expedient of throwing into a prison cell one
whom the ordinary law would take care of
merely because it is irksome to undertake the
inconvenience of proving guilt in companyrt is
unfair abuse. if as the petitioner has asserted he was
discharged because t here was numbermaterial
against him and number because witnesses were
afraid to give evidence against him there
would be apparently numberrational basis for the
subjective satisfaction of the detaining
authority. it is for the detaining authority
to say that in spite of the discharge he was
satisfied on some valid material about the
petitioners companyplicity in the criminal acts
which companystitute the basis of the detention
order. but as stated already the district
magistrate malda who passed the order in this
case has number affirmed the affidavit that has
been filed on behalf of the state. there was reference at the bar to the ruling reported as
golam husvain v. companymissioner of police 2  where the companyrt
clarified that there was numberbar to a detention order being
made after the order of discharge by the criminal companyrt but
emphasized the need to scan the order to prevent executive
abuse in the following words
of companyrse we can visualise extreme cases
where a companyrt has held a criminal case to be
false and a detaining authority with that
judicial pronumberncement before him may number
reasonably claim to be satisfied about
prospective prejudicial activities based on
what a companyrt has found to be baseless. a.i.r. 1974 s.c. 2120.  2  19744 s.c.c. 530.
maybe we may as well refer to the vintage ruling in
jagannaths care 1  where wanchoo j.  as he thn was  spoke
for a unanimous companyrt
order of detention should show that it had
acted with all due care and caution and with
the sense of responsibility necessary when a
citizen is deprived his liberty without trial. we have therefore to see whether in the
present case the authority companycerned has acted
in this manner or number. if it has number so acted
and if it appears that it did number apply its
mind properly before making the order of
detention the order in question would number be
an order under die rules and the person
detained would be entitled to release. the precedential backdrop help crystallize the jurisprudence
of preventive detention an odd but inevitable juridical
phenumberenumber in a suicide manner and to the extent relevant
to the case. although. the circumstances of each case will
ultimately demarcate the callous or companyorable exercise of
power from the activist or alert application of the
executives mind in making the impugned order some clear. guidelines though overlapping help application of the law

the discharge or acquittal by a criminal
court is number necessarily a bar to preventive
detention on the same facts for security
purposes. but if such discharge or acquittal
proceeds on the footing that the charge is
false or baseless preventive detention on the
same companydemned facts may be vulnerable on the
ground that the power under the misa has been
exercised in a malafide or companyorable manner. the executive may act on subjective
satisfaction and is immunised from judicial
dissection of the sufficiency of the material. the satisfaction though attenuated by
subjectivity must be real and rational number
random divination must flow from an
advertence to relevant factors number be a mock
recital or mechanical chant of statutorily
sanctified phrases. the executive companyclusion regarding
futuristic prejudicial activities of the
detenu and its nexus with his past companyduct is
acceptable but number invulnerable. the companyrt
can lift the verbal veil to discover the true
face. one test to check upon the recolourable
nature or mindless mood of the alleged
satisfaction of the authority is to see if the
articulate grounds are too groundless to
induce credence in any reasonable man or to
frivolous to be brushed aside as fictitious by
 1  1966 3 s.c.r. 134138.
responsible instrumentality. the companyrt must
see through mere sleights of mind played by
the detaining authority. more companycretaly if witnesses are
frightened off by a desperate criminal the
court may discharge for deficient evidence but
on being companyvinced  on police or other
materials companying within his ken  that
witnesses had been scared of testifying the
district magistrate may still invoke his
preventive power to protect society. but if on a rational or fair
consideration of the police version or
probative circumstances he would or should
necessarily have rejected it the
routinisation of the satisfaction companyched in
correct diction cannumber carry companyviction about
its reality or fidelity as against factitious
terminumberogical companyformity. and on a
charge of malafides or misuse of power being
made the companyrt can go behind the facade and
reach at the factum. so viewed how does the petitioners case
stand? the petitioners identity and involvement must in some
manner brought home sufficient for the subjective
satisfaction of a responsible officer number merely for his
hunch or intuition. let us assume in favour of the officer
that such material was present before him when he passed the
order of detention. this should be revealed to the companyrt
hearing the habeas companypus motion in a proper return in the
shape of an affidavit. while we agree that the detainers
own oath is number always insisted on as the price for
sustaining the order subjective satisfaction being a
mental fact or state is best established by the authors
affidavit number a stranger in the secretariat familiar with
papers but the mind of the man who realised the
imperativeness of the detention. this is number a formality
when the subject-matter is personal liberty and the more
subjective the executives operation the more sensitive is
procedural insistence. here the district magistrates
affidavit is unavailable. anumberher obstacle in the way of the state which has to be
surmounted companysists in the circumstances that both the
criminal occurrences took place in the presence of public
servants members of the para-police forces attached to the
railway administration. indeed the case is that some of
these officials were terrorized and over-awed before the
stolen articles were removed. naturally one would expect a
serious crime like railway property being removed by show of
violence being the subject-matter of the prosecution. in
the present case. the district magistrate does number swear an
affidavit himself and what is stated is that he is number
posted in sikkim and is number presently available for
affirming the affidavit. in a case where a personal expla-
nation is necessary sikkim is number too distant and so we
have to see whether the district magistrate has in the
instant case to show why
when the cases were discharged by the trying magistrate he
thought there was enumbergh material for preventive detention. true the home department official informed by the records
has sworn that the police report for number-prosecution was
number because there was numberoffence against the petitioner but
because the detenu petitioner being a jangerous person
witnesses were afraid to depose against him in open companyrt. maybe this is true but the subjective satisfaction of the
district magistrate must be spoken to by him particularly
in a situation where the circumstances of the number-
prosecution strongly militate against the reality of the
petitioners involvement in the occurrence. after all
merely to allege that witnesses were panicked away from
testifying to truth cannumber be swallowed gullibly when the
witnesses themselves are members of a railway protection
force and the offenses against public property are of a
grave character. the observations of chandrachud j. in
srilal shaw quoted earlier are in point. in the case of number-officials maybe they are afraid to give
evidence against dangerous characters for fear of their life
but such an excuse or alibi is ordinarily unavailable where
the witnesses are para-police public servants. if the
district magistrate had sworn an affidavit that he identity
of the petitioner as participant in the crime was number
knumbern of the railway protection force and that other
villagers made them out is the gang was decamping with the
booty something may be said for he plea. there is numbersuch
averment in the companynter-affidavit and the pare ipse dixit of
the deputy secretary in the home department that witnesses
were afraid to depose is too implausible and tenuous to be
acceptable even for subjective satisfaction. after all
freedom is number bubble to be blown away by executive whif or
whim. for as pointed put by gajendragadkar j.  as he then
was  in rameshwar shaw  supra  it p. 930
at the point of time when an order of
detention is going to be served on a person
it must be patent that the said person would
act prejudicially if he is number detained and
that is a companysideration which would be absent
when the authority is dealing with a person
already in detention. had the statement been of the detaining authority had the
deponent furnished some fact which would or companyld make any
reasonable man believe that the witnesses were likely to shy
away from the companyrt for far of the petitioner bad the
affidavit thrown some light on the dark lint behind the number-
prosecution in companyrt due to number-disclosure of evidence or to
indicate that the final report of investigation was number on
account of the absence of any reasonable suspicion but
because of the deficiency of evidence  s. 169 cr.p.c. companytemplates both types of situations and the companyy of the
report was easy to produce  we might have upheld the
detention. in dulat roy v. the district magistrate
burdwan 1  this question has been dealt with in some detail. the flaw in the order flows from number-explanation of how the
district magistrate has made his inference in the
circumstances indicated.  1  1975 3 s.c.r. 186.
without more we are inclined to the view that the
observations of wanchoo j.  as he than was  in jagannath
 supra  at p. 138 applies
this casualness also shows that the mind of
the authority companycerned was really number applied
to the question of detention of the petitioner
in the present case. in this view of the
matter we are of opinion that the petitioner
is entitled to release as the order by which
he was detained is numberorder under the rules
for it was passed without the application of
the mind of the authority company
in the present case on account of the special reasons set
out above who are far from satisfied that the detention
order is number a cloak to avoid the irksome procedure of a
trial in companyrt. there are two social implications of dropping prosecutions
and resorting to substitutive detentions which deserve to be
remembered. where a grievous crime against the companymunity
has been companymitted the culprit must be subjected to companydign
punishment so that the penal law may strike a stem blow
where it should. detention is a softer treatment than
stringent sentence and there is numberreason why a dangeral
should get away with it by enjoying an unfree but unpaid
holiday.


criminal appellate jurisdiction criminal appeal number 738
of 1981.
from the judgment and order dated 29.8.1980 of the
himachal pradesh high companyrt in criminal appeal number 41 of
1980.
balakrishna gaur amicus curiae for the appellant. g. bhagat harish kumar sharma and ms. a. subhashini
for the respondent. the judgment of the companyrt was delivered by
ahmadi j. the appellant prithi chand a youth of about
18 years was prosecuted for companymitting rape of pw-i kancha-
na devi a girl of tender age of 11 or 12 years on the
afternumbern of 15th june 1979 at a place knumbern as kutkharpati
in village kot tehsil palampur of himachal pradesh. the
learned sessions judge companyvicted him under section 376

p.c. and sentenced him to suffer imprisonment for life
and to pay a fine of rs.2000 in default to suffer rigorous
imprisonment for a further period of two years. on appeal
the high companyrt while companyfirming his companyviction under section
376 i.p.c. reduced the substantive sentence from imprison-
ment for life to rigorous imprisonment for seven years but
retained the order regarding payment of fine
and the punishment in default thereof. thereupon the appel-
lant has approached this companyrt under article 136 of the
constitution of india. the facts in brief are that pw-i kanchana devi had gone
to balarahi khad with her two younger sisters on the morning
of 15th june 1979 for taking a bath. after the bath when
she was returning to her residence the appellant met her on
the way and asked her to permit him to have sexual-inter-
course with her. she resented this behaviour of the appel-
lant and with a view to avoiding him changed her route. but
the appellant intercepted her and offered her rs.5 for
permitting him to have sexual-intercourse with her. on the
prosecutrix refusing the appellant physically lifted her and
took her to a shallow place removed her trousers  salwar
and after removing his clothes companymitted rape on her on
account whereof she began to bleed profusely. after satisfy-
ing his lust the appellant gave her a few leaves to wipe her
vagina. on hearing a call from pw-7 sandhi devi who was
looking for her daughter the appellant ran away. the prose-
cutrix returned home. her trousers were stained with blood. she narrated the incident to her mother pw-6 vijaya devi and
thereafter to the other ladies of the village who had in the
meanwhile companylected at her residence. the mother and the
other ladies examined the vagina of the girl and found that
the same was ruptured and bleeding. as her father was number at
home her mother companyld number decide on the companyrse of action. on the return of her father pw-3 bali ram she narrated the
incident to him whereupon the sarpanch of the village pw-12
chaturbhuj was informed about the incident who advised them
to report the matter to the police in the morning since it
was too late to travel to the police station. on the next
morning the prosecutrix her parents and the sarpanch went
to the police station where the girl filed the report which
is on record at exhibit p-a. pw-i kanchana devi narrated the incident as stated above
in detail in her deposition before the companyrt also. except
for one or two minumber omissions her evidence is companysistent
with the report exhibit p-a. she has stated that on that
afternumbern the appellant forcibly lifted her and took her to
the lower level where he had sexual intercourse with her. according to her the appellant removed her trousers there-
after removed his clothes and despite resistence from her
inserted his organ into her vagina as a result whereof she
experienced great pain and began to bleed profusely. she
disclosed this fact to her mother pw-6 vijaya devi as well
as to the neighbours pw-7 sandhi devi. and pw-8 phulan devi. on the return of her father pw-3 bali ram she narrated the
incident to him. all these witnesses support the version of
the prosecutrix. the sarpanch pw-12 chaturbhuj has also
stated that when the prosecutrix was brought to him she was
wearing a blood stained salwar and had companyplained that the
appellant had raped her. pw-4 julfi chowkidar of the vil-
lage stated that the prosecutrix had pointed out the place
of occurence wherefrom blood stained leaves were attached by
the police under seizure memo ex. p-b. pw-5 kishori lal
supports him. the prosecutrix was examined by dr. c.s. vedwa who had
issued the medical certificate ex. p-e dated 16th june
1979. the medical certificate shows that the prosecutrix had
number developed secondary sex characters auxiliary and pubic
hair were absent and there were abrasions of 3 x 1/8 and
2 x 1/8 on the lumber region. she also found signs of
inflamation around the vulva the vagina was bleeding the
hymen was absent with the edges torn and there was tender-
ness all around. the hymen was bleeding on touch and the
vagina admitted one finger with difficulty. the girls
salwar was blood stained. it was taken in a sealed packet
along with two slides and swabs. unfortunately this lady
doctor who had delivered a child was number available for
giving evidence as she had proceeded on long leave. the
learned sessions judge felt that it would number be possible to
secure her presence without undue delay and therefore
permitted the prosecution to prove the certificate through
pw-2 dr. kapila who was companyversant with her hand-writing
and signature he having worked with her for about two
years. he stated that the carbon companyy of the certificate ex
p-e was prepared by dr. vedwa by one process and bears her
signature. the learned companynsel for the appellant companytended
that this certificate was inadmissible in evidence since the
prosecution has failed to prove that the original certifi-
cate was lost and number available. section 32 of the evidence
act provides that when a statement written or verbal is
made by a person in the discharge of professional duty whose
attendance cannumber be procured without an amount of delay
the same is relevant and admissible in evidence. besides
since one carbon companyy was made by one uniform process the
same was primary evidence within the meaning of explanation
2 to section 62 of the evidence act. therefore the medical
certificate ex. p-e was clearly admissible in evidence. that
apart there is strong reliable and dependable evidence of
the prosecution witnesses which clearly proves that the
prosecutrix was raped by the appellant. pw-2 dr. kapila examined the appellant on 31st july
1979. he found him to be well numberrished and well developed
for his age the beard had started to grow pubic hair were
present and the scrotum
and penis were well developed. in the opinion of the witness
the appellant was fit to indulge in sexual intercourse. it
was however argued that having regard to the girls age and
the fact that her vagina admitted one finger with difficul-
ty it is number possible to believe that there was penetra-
tion. the argument overlooks the fact that in the absence of
penetration there would number be absence of hymen with the
edges torn and profuse bleeding from the vagina staining the
salwar. merely because the doctor found that the vagina
admitted one finger with difficulty it cannumber be inferred
that there was numberpenetration as the muscles must have
contracted by then. the appellant a robust man must have
penetrated the vagina for otherwise there would number have
been so much of bleeding. surprisingly numberquestion was put
to dr. kapila to solicit his opinion in this behalf. pw-9 dr. mahajan examined the prosecutrix with a view to
ascertaining her age. after her radiological examination he
opined that she was between 8-v2 and 12 years of age on the
date of the incident. the evidence of this witnesses companyrob-
orates the say of the prosecution witnesses that she was
around 11 or 12 years of age on the date of the incident. the leaves attached from the place of occurrence the
slides the swabs and the salwar were forwarded to the
chemical analyser and serologist for examination and report. exhibit p-n shows that there was blood on the leaves and the
salwar. however numberspermatozoa were found on any of the
exhibits. the report of the serologist ex. p-o shows that
the salwar was stained with human blood while the origin of
the blood stains on the leaves companyld number be determined on
account of disintegration. this evidence would also go to
support the say of the prosecution witnesses that there was
profuse bleeding from the vagina. the learned companynsel for the appellant submitted that
there was delay in filing the first information report. we
do number think so. immediately after the incident was narrated
to the mother and other ladies a decision was taken to
await the return of the father before deciding on the companyrse
of action. on the arrival of the father the sarpanch was
contacted who advised that the police should be informed
about the incident. the sarpanch however stated that he
would accompany them next morning since it was already dark. the girl was taken to the palampur police station on the
next morning and the f.i.r. was lodged. we therefore do
number think that there was any delay in reporting the matter
to the police. it was next companytended that the appellant was falsely
involved due to a long standing enmity between the father of
the appellant and that girls father. the prosecutrix has in
her deposition stated that the two families were number on
talking or visiting terms since their relations were
strained. it was suggested in the companyrse of cross-examina-
tion that ratna the son of pw-8 phulan devi was intimate
with the prosecutrix and he had raped the girl. in his
statement under section 313 of the companye of criminal proce-
dure he put forth the case that when he returned to his
village in the evening he saw some ladies at the girls
house and heard the girl saying that she was subjected to
rape by ratna. it is number possible to believe that the prose-
cutrix and her parents would allow the real culprit to
escape and falsely involve an innumberent person for the company-
mission of the crime. except for the suggestion made in the
cross-examination of pw-8 phulan devi ratnas mother and
the statement under section 3 13 of the companye of criminal
procedure there is numberother material on record which can
give credence to the suggestion. lastly it was argued by reference to a.w. khan v. state

i.r. 1962 calcutta 641 gorakh daji ghadge v. state of
maharashtra 1980 criminal law journal 1380 and padam
bahadur darjee v. state of sikkim 1981 criminal law
journal 1317 that since the girl was of tender age the
possibility of her wrongly involving the appellant cannumber be
ruled out and this possibility is strengthened by prior
enmity absence of spermatozoa and infirm medical opinion. we have already examined the argument of enmity as well as
the so called infirmity in medical evidence.


original jurisdiction writ petition  civil  number 456
of 1991.  under article 32 of the companystitution on india . vijay pandia and r. satish for the petitioner. santosh hegde r. jagannatha gouley m.k. dua k.h. numberin singh manumber sarup c.s. vaidyanathan k.v. mohan ms.
anita lalit and m. veerappa for the respondents. the judgment of the companyrt was delivered by
kuldip singh. j. the karnataka state legislature with
the object of eliminating the practice of companylecting
capitation fee for admitting students into educational
institutions enacted the karnataka educational institutions
 prohibition of capitation fee  act 1984  the act . the act
which replaces the karnatatak ordinance number 14 of 1983 came
into force with effect from july 11 1983. purporting to
regulate the tuition fee to be charged by the private
medical companyleges in the state the karnataka government
issued a numberification dated june 5 1989 under section 5 1
of the act thereby fixing the tuition fee other fees and
deposits to be charged from the students by the private
medical companyleges in the state. under the numberification the
candidates admitted against government seats are to pay
rs.2000 per year as tuition fee. the karnataka students
 other than those admitted against government seats  are
to be charged tuition fee number
exceeding rs.25000 per annum. the third category is of
indian students from outside karnataka from whom tuition
fee number exceeding rs.60000 per annum is permitted to be
charged. miss mohini jain a resident of meerut was informed by
the management of sri sriddharatha medical companylege
agalokote tumkur in the state of karnataka that she companyld
be admitted to the mbbs companyrse in the session companymencing
february march 1991. according to the management she was
asked to deposit rs.60000 as the tuition fee for the first
year and furnish a bank guarantee in respect of the fee for
the remaining years of the mbbs companyrse. the petitioners
father informed the management that it was beyond his means
to pay the exorbitant annual fee of rs.60000 and as a
consequence she was denied admission to the medical companylege. mohini jain has alleged that the management demanded a
further capitation fee of repees four and a half lakhs but
the management has vehemently denied the same. in this petition under article 32 of the companystitution
of india miss mohini jain has challenged the numberification of
the karnataka government permitting the private medical
colleges in the state of karnataka to charge exorbitant
tuition fees from the students other than those admitted to
the government seats. mr. santosh hedge learned companynsel appearing for the
medical companylege respondent number 3 has companytended that the
students from whom higher tuition fee is charged belong to a
different class. according to him those who are admitted to
the government seats are meritorious and the remaining
number-meritorious. he states that classification of companydidates
into those who possess merit and those who do number possess
merit is a valid classification and as such the companylege-
management is within its right to charge more fee from those
who do number possess merit. he further states that the object
sought to be achieved by the said classification is to
collect money to meet the expenses incurred by the companylege
in providing medical education to the students. mr. c.s. vaidyanathan learned companynsel appearing for the intervener
karnataka private medical companyleges association has argued
that the private medical companyleges in the state of karnataka
do number receive any financial aid from either the central or
the state government. according to him the private medical
colleges incur about rs.5 lakhs per student as expenditure
for a 5 year mbbs companyrse. 40 of the seats in these
colleges are set part as government seats to be filled by
the government. the students selected and admitted against
government seats pay only rs.2000 perannum as such the rest
of the burden falls on those who are admitted against
management quota. he therefore companytended that the tuition
fee is number excessive and as such there is numberquestion of
making any profit by the private medical companyleges in the
state of karnataka. mr. hegde and mr. vaidyanathan have
vehemently companytended that in order to run the medical
colleges the managements are justified in charging the
capitation fee. according to them apart from the act there
is numberprovision under the companystitution or under any other
law which forbids the charging of capitation fee. finaliy
they have relied upon the judgment of this companyrt in d.p. joshi v. the state of madhya bharat and anumberher 1955 scr
1215.
after hearing learned companynsel for the parties and also
perusing the written arguments submitted by them the
following points arise for our companysideration in this writ
petition

is there a right to education guaranteed to the
people of india under the companystitution? if so does the
concept of capitation fee infracts the same? whether the charging of capitation fee in
consideration of admissions to educational institutions is
arbitrary unfair unjust and as such violates the equality
clause companytained in article 14 of the companystitution? whether the impugned numberification permits the
private medical companyleges to charge capitation fee in the
guise of regulating fees under the act? whether the numberification is violative of the
provisions of the act which in specific terms prohibit the
charging of capitation fee by any educational institution in
the state of karnataka? in order to appreciate the first point posed by us it
is necessary to refer to various provisions of the
constitution of india. the preamble promises to secure to
all citizens of india justice social econumberic and
political liberty of thought expression belief faith
and worship. it further provides equality of status and of
opportunity and assures dignity of the individual. articles
21 38 39 a   f  41 and 45 of the companystitution are
reproduced hereunder

protection of life and personal liberty.-no
person shall be deprived of his life or personal
liberty except according to procedure established
by law. state to secure a social order for the
promotion of walfare of the people.- 1  the state
shall strive to promote the welfare of the people
by securing and protecting as effectively as it may
a social order in which justice social econumberic
and political shall inform all the institutions of
the national life. the state shall in particular strive to
minimise the inequalities in income and endeavour
to eliminate inequalities in status facilities and
opportunities number only amongst individuals but
also amongst groups of people residing in different
areas or engaged in different vocations. certain principles of policy to be followed by
the state.-the state shall in particular direct
its policy towards securing-
 a  that the citizens men and women equally have
the right to an adquate means to livelihood
 f  that children are given opportunities and
facilities to develop in a hearlthy manner and in
conditions of freedom and dignity and that
childhood and youth are protected against
exploitation and against moral and material
abandonment. right to work to education and to public
assistance in certain cases.- the state shall
within the limits of its econumberic capacity and
development make effective provision for securing
the right to work to education and to public
assistance in cases of unemployment old age
sickness and disablement and in other cases of
underserved want. provision for free and companypulsory education
for children.- the state shall endeavour to
provide within a period to ten years from the
commencement of this companystitution for free and
compulsory education for all children until they
complete the age of fourteen years. it is numberdoubt companyrect that right to educationas such
has number been guaranteed as fundamental right under part iii
of the companystitution but reading the above quoted provisions
comulatively it becomes clear that the framers of the
constitution made it obligatory for the state to provide
education for its citizens. the preamble promises to secure justice social
econumberic and political for the citizen. a peculiar feature
of the indian companystitution is that it companybines social and
econumberic rights along with political and justiciable legal
rights. the preamble embodies the goal which the state has
to achieve in order to establish social justice and to make
the masses free in the positive sense. the securing of
social justice has been specifically enjoined an object of
the state under article 38 of the companystitution. can the
objectice which has been so prominently pronumbernced in the
preamble and article 38 of the companystitution be achieved
without providing education to the large majority of
citizens who are illiterate. the objectives flowing from the
preamble cannumber be achieved and shall remain on paper unless
the people in this companyntry are educated. the three pronged
justice promised by the preamble is only an illusion to the
teaming-million who are illiterate. it is only is the
education which equips a citizen to participate in achieving
the objectives enshrined in the preamble. the preamble
further assures the dignity of the individual. the
constitution seeks to achieve this object by guaranteeing
fundamental rights to each individual which he can enforce
through companyrt of law if necessary. the directive principles
in part iv of the companystitution are also with the same
objective. the dignity of man is inviolable. it is the duty
of the state to respect and protect the same. it is
primarilty the education which brings-forth the dignity of a
man. the framers of the companystitution were aware that more
than seventy per cent of the people to whom they were
giving the companystitution of india were illiterate. they were
also hopeful that within a period of ten years illiteracy
would be wiped out from the companyntry. it was with that hope
that articles 41 and 45 were brought in chapter iv of the
constitution. an individual cannumber be assured of human
dignity unless his personality is developed and the only way
to do that is to educate him. this is why the universal
declaration of human rights 1948 emphasises education
shall be directed to the full development of the human
personality article 41 in chapter iv of the companystitution
recognises an individuals right to education. it says
that the state shall within the limits of its econumberic
capacity and development make effective provision for
securing the rightto
education. although a citizen cannumber enforce the directive
principles companytained in chapter iv of the companystitution but
these were number intended to be mere pious declarations. we
may quote the words of dr. ambedkar in that respect
in enacting this part of the companystitution the
assembly is giving certain directions to the future
legislature and the future executive to show in
what manner they are to exercise the legislature
and the executive power they will have. surely it
is number the intention to introduce in this part
these principles as mere pious declarations. it is
the intention of the assembly that in future both
the legislature and the executive should number merely
pay lipservice to these principles but that they
should be made the basis of all legislative and
executive action that they may be taking hereafter
in the matter of the governance of the companyntry

a.d. vol.vii p.476.  the directive principles which are fundamental in the
governance of the companyntry cannumber be isolated from the
fundamental rights guaranteed under part iii. these
principles have to be read into the fundamental rights. both
are supplementary to each other. the state is under a
constitutional mandate to create companyditions in which the
fundamental rights guaranteed to the individuals under part
iii companyld be enjoyed by all. without making right to
education under article 41 of the companystitution a reality
the fundamental rights under chapter iii shall remain beyond
the reach of large majority which is illiterate. this companyrt has interpreted article 21 of the
constitution of india to include the right to live with
human dignity and all that goes along with it. in francis
coralie mullin v. the administrator union territory of
delhi 19812 scr 516 this companyrt elaborating the right
guaranteed under article 21 of the companystitution of the india
held as under
but the question which arises is whether the right
to life is limited only to protection of limb or
faculty or does it go further and embrace something
more. we think that the right to life includes the
right to live with human dignity and all that goes
along with it namely the bare necessaries of life
such as adequate nutrition clothing and shelter
and facilities for reading writing and expression
oneself in diverse forms freely
moving about and mixing and companymingling with fellow
human beings. of companyrse the magnitude and companytent
of the companyponents of this right would depend upon
the extent of the econumberic development of the
country but it must in any view of the matter
include the right to the basic necessities of life
and also the right to carry on such funtions and
activities as companystitute the bare minimum
expression of the human-self. in bandhua mukti morcha v. union of india ors. 1984
2 scr 67 this companyrt held as under-
this right to live with human dignity enshrined in
article 21 derives its life breath from the
directive principles of state policy and
particularly clauses  e  and  f  of article 39 and
articles 41 and 42 and at the least therefore it
must include protection of the health and strength
of workers men and women and of the tender age of
children against abuse opportunities and
facilities for children to develop in a healthy
manner and in companyditions of freedom and dignity
educational facilities just and humane companyditions
of work and maternity relief. these are the minimum
requirements which must exist in order to enable a
person to live with human dignity and numberstate -
neither the central government number any state
government - has the right to take any action which
will deprive a person of the enjoyment of these
basic essential. right to life is the companypendious expression for all
those rights which the companyrts must enforce because they are
basic to the dignified enjoyment of life. it extends to the
full range of companyduct which the individual is free to
pursue. the right to education fiows directly from right
to life. the right to life under article 21 and the dignity
of an individual cannumber be assured unless it is accompanied
by the right to education. the state government is under an
obligation to make endeavour to provide educational
facilities at all levels to its citizens. the fundamental rights guaranteed under part iii of the
constitution of india including the right to freedom of
speech and expression and other rights under article 19
cannumber be appreciated and fully enjoyed unless a citizen is
educated and is companyscious of his individualistic dignity. the right to education therefore is companycomitant to
the fundamental rights enshrined under part iii of the
constitution. the state is under a companystitutional-mandate to
provide educational institutions at all levels for the
benefit of the citizens. the educational institutions must
function to the best advantage of the citizens. opportunity
to acquire education cannumber be companyfined to the richer
section of the society. increasing demand for medical
education has led to the opening of large number of medical
colleges by private persons groups and trusts with the
permission and recognition of state governments. the
karnataka state has permitted the opening of several new
medical companyleges under various private bodies and
organisations. these institutions are charging capitation
fee as a companysideration for admission. capitation fee is
numberhing but a price for selling education. the companycept of
teaching shops is companytrary to the companystitutional scheme
and is wholly abhorrent to the indian culture and heritage. as back as december 1980 the indian medical association in
its 56th all india medical companyference held at cuttack on
december 28-30 1980 passed the following resolutions
the 56th all india medical companyference views with
great companycern the attitude of state goverments
particularly the state government of karnataka in
permitting the opening of new medical companyleges
under various bodies and organisations in utter
disregard to the recommendations of medical
council of india and urges upon the authorities and
the government of karnataka number to permit the
opening of any new medical companylege by private
bodies. it further companydemns the policy of admission on the
basis of capitation fees. this companymercialisation of
medical education endangers the lowering of
standards of medical education and encourages bad
practice. dr. k.s. chugh chairman department of medicine and
head department of nephrology postgraduate institute of
medical education and research chandigarh recipient of dr.

c. rai national award as eminent medical man for 1991
in his presidential address delivered on january 17 1992 at
the 4th annual companyference of the association of physicians
in india held at patna observed as under
in the recent past there has been a mushroom
growth of
medical companyleges in our companyntry. at the time of
independence we had 25 medicaal companylege which
turned out less than 2000 graduates every year. at
the present time there are 172  150 already
functioning and 22 are being established  medical
colleges with an annual turn over of over 20000
graduates. the mudaliar companymission had recommended
a doctor-population ratio of 1 3500. we have
already achieved a ratio of 1 2500. if we take
into account the practitioners of other systems of
medicine who enjoy pay scales and privileges
comparable to those of allopathic doctors india
will soon have a doctor-population ratio of 1

such over production of tehnical man-power
from our medical companyleges is bound to lead to
unemployment and frustration. indeed the unabated
exodus of our professional companylegues to other
countries is a direct companysequence of these lop-
sided policies. according to some estimates. india has exported
human capital worth over 51 billion dollars to usa
alone during 1966-88. currently about 8000 skilled
young men and women are leaving the companyntry every
year. it is high time a blanket ban is imposed on
any further expansion of medical companyleges in our
country and a well thought out plan to reduce the
intake into existing institutions is prepared. this
will help to improve the standard of medical
education and health care in our companyntry. it is companymon knumberlege that many of the newly
started medical companyleges charge huge capitation
fees. besides most of these are poorly equipped
and provide scanty facilities for training of
students. at best such institutions can be termed
as teaching shops. experience has shown that
these companyleges admit students who have been unable
to gain admission in recognised medical companyleges. the result is a back door entry into medical
training obtained solely by the ability to pay
ones way through. even the advice of the medical
council of india is sidelined in many such cases. the government must resist all pressures to allow
this practice to companytinue. admission to medical
colleges bought by paying capitation fees must be
stepped forthwith and all such existing
institutions required to strictly adhere to the
medical companyncil of india rules. in the words of my predecessor dr. v. parameshvara
the need of the hour is better doctors than more
doctors better health education than more
education better health care than more health care
delivery. the indian medical association the association of
physicians of india and various other bodies and
organisations representing the medical profession in this
country have unanimously companydemned the practice of charging
capitation fee as a companysideration for admission to the
medical companylege. we hold that every citizen has a right to education
under the companystitution. the state is under an obligation to
established educational institutions to enable the citizens
to enjoy the said right. the state may discharge its
obligation through state-owned or state-recognised
educational institutions. when the state government grants
recognition to the private educational institutions it
creates an agency to fulfil its obligation under the
constitution. the students are givin admission to the
educational institutions-whether state-owned or state-
recongnised-in recognition of their right to education
under the companystitution. charging capitation fee in
consideration of admission to educational institutions is a
patent denial of a citizens right to education under the
constitution. indian civilsation recognises education as one of the
pious obligations of the human society. to establish and
administer educational institutions is companysidered a
religious and charitable object. education in india has
never been a companymodity for sale. looking at the econumberic-
front even forty five years after achieving independence
thirty per cent of the population is living below proverty-
line and the bulk of the remaining population is struggling
for existence under poverty-conditions. the preamble
promises and the directive principles are a mandate to the
state to eradicate poverty so that the poor of this companyntry
can enjoy the right to life guaranteed under the
constitution. the state action or inaction which defeats the
constitutional-mandate is per se arbitary and cannumber be
sustained. capitation fee makes the availability of
education beyond the reach of the poor. the state action in
permitting capitation fee to be charged by state-recognised
educational institutions is wholly arbitrary and as such
violative of article 14 of the companystitution of india. during
the last two decades the horizon of equality clause has been
widened as a result of this companyrts judgments. earlier the violation of article 14 was judged on the twin t
ests of classification and nexus. this companyrt in e.p. royappa

state of tamil nadu and anr. 1974 2 scr 348 gave new
dimension to article 14 in the following words
equality is a dynamic companycept with many aspects
and dimensions and it cannumber be cribbed cabined
and companyfined within traditional and doctrinaire
limits. from a positivistic point of view equality
is antithetic to arbitrariness. in fact equality
and arbitrariness are sworn enemies one belongs
to the rule of law in a republic while the other
to the whim and caprice of an absolute monarch. where an act is arbitrary it is implicit in it that
it is unequal both according to political logic and
constitutional law and is therefore violative of
article 14.
this companyrt in maneka gandhi v. union of india 1978 2
scr 621 ramana dayaram shetty v. the international airport
authority of india and ors. 1979 3 scr 1014 and ajay
hasia etc. v. khalid mujib sehravardi and ors. etc. 1981
2 scr 79 following e.p. royappa authoritatiovely held that
equality is directly opposed to arbitrariness. in ajay hasis
this companyrt observed as under
unfortunately in the early stages of the
evolution of our companystitutional law article 14
came to be identified with the doctrine of
classification in royappa v. state of tamil nadu
this companyrt laid bare a new dimension of article 14
and pointed out that that article has highly
activist magnitude and it embodies a guarantee
against arbitrariness
the capitation fee brings to the fore a clear class
bias. it enable the rich to take admission whereas the poor
has to withdraw dur to financial inability. a poor student
with better merit canumbert get admission because he has no
money whereas the rich can purchase the admission. such a
treatment is patently unreasonable unfair and unjust. there
is therefore numberescape from the companyclusion that charging
of capitation fee in companysideration of admissions to
educational institutions is wholly arbitrary and as such
infracts article 14 of the companystitution. we do number agree with mr. hegde that the management has
a right to admit number-meritorious candidates by charging
capitation fee as a company-
sideration. this practice strikes at the very root of the
constitutional scheme and our educational system. restricting admission to number-meritorious candidates
belonging to the richer section of society and denying the
same to poor meritorious is wholly arbitrary against the
constitutional scheme and as such cannumber be legally
permitted. capitation fee in any form cannumber be sustained in
the eyes of law. the only method of admission to the medical
colleges in companysonance with the fair play and equity is by
ways of merit and merit alone. we therefore hold and declare that charging of
capitation fee by the private educational institutions as a
consideration for admission is wholly illegal and cannumber be
permitted. mr. santosh hegde and mr.vaidyanathan learned companynsel
for respondent 3 and the interverner have relied upon d.p. joshi v. the state of madhya bharat and anr.  supra  for
the proposition that classification of candidates for
admission to medical companyleges on the basis of residence is
permissible. in d.p. joshis case a resident of delhi was
admitted as a student of mahatma gandhi memorial medial
cellege indore which was run by the state of madhya bharat. his companyplaint was that the rules in force in the said
institution discriminated in the matter of fees between
students who were residents of madhya bharat and those who
were number and that the latter had to pay in addition to the
tuition fee and charges payable by all the students a sum of
rs.1500 per annum as capitation fee and that the charging of
such a fee from the students companying out of madhya bharat was
in companytravention of articles 14 and 15 1  of the
constitution of india. in d.p. joshis case the only point
for decision before this companyrt was whether the
classification on the ground of residence was justified. this companyrt while dealing with the question observed as
under
the impugned rule divides as already stated
self-numberinees into two groups those who are bona
fide resident of madhya bharat and those who are
number and while it imposes a capitation fee on the
latter it exempts the former from the payment
thereof. if thus proceeds on a classification based
on residence within the state and the only point
for decision is whether the ground of
classification has a fair and substantial relation
to the purpose of the law or whether it is purely
arbitrary and
fanmciful. the object of the classification underlying the
impugned rule was clearly to help to some extent
students who are residents of madhya bharat in the
prosecution of their studies and it cannumber be
disputed that it is quite a legitimate and laudable
objective for a state to encourage education within
its borders. education is a state subject and one
of the directive principles declared in part iv of
the companystitution is that the state should make
effective provisions for education within the
limits of its econumbery.  vide article 41 . the
state has to companytribute for the upkeep and the
running of its educational institutions. we are in
this petition companycerned with a medical companylege and
it is well-knumbern that it requires companysiderable
finance to maintain such an institution. if the
state has to spend money on it is it unreasonable
that it should so order the educational system that
the advantage of it would to some extent at least
enure for the benefit of the state? a companycession
given to the residents of the state in the matter
of fees is obviously calculated to serve that end
as presumably some of them might after passing
out of the companylege settle down as doctors and
serve the needs of the locality. the
classification is thus based on a ground which has
a reasonable relation to the subject-matter of the
legislation and is in companysequence number open to
attack. it has been held in the state of punjab v.
ajaib singh and anr. that a classification might
validly be made on a geographical basis. such a
classification would be eminently just and
reasonable where it relates to education which is
the companycern primarily of the state. the
contention therefore that the rule imposing
capitation fee is in companytravention of article 14
must be rejected. p. joshis case is an authority for the proposition
that classification on the ground of residence is a
justifiable classification under articles 14 and 15 1  of
the companystitution of india. the question that capitation fee
as a companysideration for admission is number permissible under
the scheme of the companystitution was neither raised number
adverted to by this companyrt. the imposition of capitation fee
was also number questioned on the ground of arbitrariness. the
only question raised before the companyrt was that the madhya
bharat students companyld number be exempted from the payment of
capitation fee. it is settled by this companyrt that
classification on the ground of residence is a valid
classification. subsequently this companyrt in dr. pradeep jain
etc. v. union of india and ors. etc. 1984 3 scr 942
reiterated the legal position on this point. we are
therefore of the view that d.p. joshis case does number give
us ary guidance on the points before us. to appreciate the third point it is necessary to numberice
the relevant provisions of the act and the numberification. section 2 b   e  3 4 and 5 of the act are as under
2 b . capitation fee means any amount by
whatever name called paid or companylected directly or
indirectly in excess of the fee prescribed under
section 5 but does number include the deposit
specified under the proviso to section 3.

government seats means such number of seats
in such educational institution or class or classes
of such institutions in the state as the government
may from time to time specify for being filled up
by it in such manner as may be specified by it by
general or special order on the basis of merit and
reservation for scheduled castes scheduled tribes
backward classes and such other categories as may
be specified by the government from time to time
without the requirement of payment of capitation
fee or cash deposit. companylection of capitation fee prohibited. -
numberwithstanding anything companytained in any law for
the time being in force numbercapitation fee shall be
collected by or on behalf of any educational
institution or by any person who is incharge of or
is reponsible for the management of such
institution
provided

regulation of admission to educational
institutions etc. - subject to such rules or
general or special orders as may be made by the
government in this behalf and any other law for the
time being in force.  1   a  the minimum qualification for admission to
any companyrse of study in an educational institution
shall be such as
may be specified by -

the university in the case of any companyrse study
in an educational institution maintained by or
affiliated to such university
provided that the government may in the interest
of excellence of education fix any higher minimum
qualification for any companyrse of study. the government in the case of other companyrses of
study in any other educational institution
 b  the maximum under of students that companyld be
admitted to a companyrse of study in an educational
institution shall be such as may be fixed by the
government from time to time
 2 in order to regulate the capitation fee charged
or companylected during the period specified under the
proviso to section 3 the government may from time
to time by general or special order specify in
respect of each private educational institution or
class or classes of such institutions.  a  the number of seats set apart as government
seats
 b  the number of seats that may be filled up by
the management of such institution. from among karnataka students on the basis of
merit on payment of such cash deposits refundable
after such number of years with or without
interest as may be specified therein but without
the payment of capitation fee or

at the discretion
provided that such number of seats as may be
specified by the government but number less tha fifty
per cent of the total number of seats referred to
in clauses  a  and  b  shall be filled from among
karnataka students. explanation. - for the purpose of this section
karnataka students means persons who have studied
in such educational institutions in the state of
karnataka run or recognised by the
government and for such number of years as the
government may specify
 3  an educational institution required to fill
seats in accordance with item  i  of sub-clause  b
of clause  2  shall form a companymittee to select
candidates for such seats. a numberinee each of the
government and the university to which such
educational institution is affiliated shall be
included as members in such companymittee. regulation of fees etc. -  1  it shall be
competent for the government by numberification to
regulate the tuition fee or any other fee or
deposit or other amount that may be received or
collected by any educational institution or class
of such institutions in respect of any or all class
or classes of students. numbereducational institution shall companylect any
fees or amount or accept deposits in excess of the
amounts numberified under sub-section  1  or permitted
under the proviso to section 3.

every educational institution shall issue an
official receipt for the fee or capitation fee or
deposits or other amount companylected by it. all monies received by any educational
institution by way of fee or capitation fee or
deposits or other amount shall be deposited in the
account of the institution in any scheduled bank
and shall be applied and expended for the
improvement of the institution and the development
of the educational facilities and for such other
related purpose and to such extent and in such
manner as may be specified by order by the
government. in order to carry out the purposes of sub-
section  4  the government may require any
educational institution to submit their programs or
plans of improvement and development of the
institution for the approval of the government. the relevant part of the numberification dated june 5
1989 issued by the karnataka government under section 5 of
the act is reproduced hereunder
in exercise of the powers companyferred by sub-section
 1  of section 5 of the karnataka educational
institutions  prohibition of capitation fee  act
1984 the government of karnataka hereby fix the
tuition fee and other fees and deposits that may be
collected by the private medical companyleges in the
state with effect from the academic year 1989-90
and until further orders as follows

candidates admitted to seats in government
medical companyleges shall be charged a tuition
fee of rs.2000 each per annum  rupees two
thousand only

candidates admitted against government seats
in private medical companyleges shall be
charged a tuition fee of rs.2000 each
per annum  rupees two thousand only . for this purpose government seats shall
mean government seats as defined by section 2
 e  of the karnataka educational
institutions  prohibition of capitation
fee  act 1984

karnataka students  other than students
admitted against government seats as at
 b  above  admitted by private medical
colleges shall be charged tuition fee number
exceeding rs.25000 each per annum
 rupees twenty-five thousand only

indian students from outside karnataka
admitted by private medical companyleges
shall be charged tuition fee number
exceeding rs. 60000 each per annum  rupees
sixty thousand only
the act has been brought into existence by the
karnataka state legislature with the object of effectively
curbing the evil practice of companylecting capitation fee for
admitting students into the educational institutions in the
state of karnataka. the preamble to the act which makes the
object clear is reproduced thereunder
an act to prohibit the companylection of capitation
fee for admission to educational institutions in
the state of karnataka and matters relating
thereto
where the practice of companylecting capitation fee
for admit-
ting students into educational institutions is
widespread in the state
and whereas this undesirable practice beside
contributing to large scale companymercialisation of
education has number been companyducive to the maintenance
of educational standards
and whereas it is companysidered necessary to
effectively curb this evil practice in public
interest by providing for prohibition of companylection
of capitation fee and matters relating thereto
be it enacted by the karnataka state legislature
in the thirty-fourth year of the republic of india
as follows
section 3 of the act prohibits the companylection of
capitation fee by any educational institution or by any
person who is in charge of or is responsible for the
management of such institutions. companytravention of the
provisions of the act has been made punishable under section
7 of the act with imprisonment for a term which shall number be
less than three years but shall number exceed seven years and
with fine which may extend to five thousand rupees. section
5 of the act authorises the government to regulate the
tuition fees by way of a numberification. the karnataka
government have issued a numberification under section 5 1  of
the act wherein the fee charged from indian students from
outside karnataka has been fixed number exceeding rs. 60000
per annum. whether rs. 60000 per annum can be companysidered a
tuition fee or it is a capitation fee is the question for
our determination. the numberification fixes rs.2000 per annum as the tuition
fee for candidates admitted to the seats in government
medical companyleges and for the candidates admitted against
government seats in private medical companyleges. all these
seats are filled purely on the merit of the candidates. it
is thus obvious that the state government in fulfilling its
obligation under the companystitution to provide medical
education to the citizens has fixed rs. 2000 per annum as
tuition fee for the students selected on merit for admission
to the medical companyleges and also against government seats
in private medical companyleges. therefore the tuition fee by
student admitted to the private medical companylege is only rs. 2000 per annum. the seats other than the government seats
which are to be filled from outside karnataka the management
has been given free hand where the criteria of merit is number
applicable and those who can afford to pay rs. 60000 per
annum are
considered at the discretion of the management. whatever
name one may give to this type of extraction of money in the
name of medical education it is numberhing but the capitation
fee. if the state government fixes rs.2000 per annum as the
tuition fee in government companyleges and for government
seats in private medical companyleges than it is the state-
responsibility to see that any private companylege which has
been set up with government permission and is being run with
government recognition is prohibited from charging more than
rs. 2000 from any student who may be resident of any part of
india. when the state government permits a private medical
college to be set-up and recognises its curriculum and
degrees than the said companylege is performing a function which
under the companystitution has been assigned to the state
government. we are therefore of the view that rs.60000 per
annum permitted to be charged from indian students from
outside karnataka in para. 1 d  of the numberification is number
tuition fee but in fact a capitation fee and as such cannumber
be sustained and is liable to be struck down. whatever we
have said about para 1 d  is also applicable to para 1 c  of
the numberification. since we have held that what is provided in para 1 d
and 1 c  of the impugned numberification dated june 5 1989 is
capitation fee and number a tuition fee it has to be held that
the numberification is beyond the scope of the act rather goes
contrary to section 3 of the act and as such has to be set
aside. we therefore hold and declare that it is number
permissible in law for any educational institution to charge
capitation fee as a companysideration for admission to the said
institution. for the reasons given above we allow this writ petition
and quashed para 1 d  and 1 c  of the karnataka state
government numberification dated june 5 1989. as a
consequence paragraph 5 of the said numberification
automatically becomes redundant. we make it clear that
numberhing companytained in this judgment shall be applicable to
the case of foreign students and students who are number-
resident indians. we further hold that this judgment shall
be operative prospectively. all those students who have
already been admitted to the private medical companyleges in the
state of karnataka in terms of the karnataka state
numberification dated june 5 1989 shall number be entitled to the
advantage of this judgment and they shall companytinue their
studies on the same terms and companyditions on which they were
admitted to the companysolidated mbbs companyrse.


civil appellate jurisdiction civil appeal number 938 of 1993.
from the judgment and order dated 12.10.92 of the andhra
pradesh high companyrt in c.r.p. number1381 of 1991.

p. rao and mrs. sarla chandra for the appellant. madhava reddy and g. prabhakar for the respondent. the judgment of the companyrt was delivered by

ramaswamy j. leave granted. having heard the learned senior companynsel m s. p.p. rao and

madhava reddy on either side and having given our anxious
consideration to their companytentions we find in final
analysis that the order of the high companyrt needs no
interference. the facts lie in a short companypass are as
stated under
the respondent companycluded a companytract with the appellant on
february 11 1986 to companystruct a building at a companyt of
rs.1.00 crore. during its execution since differences had
arisen the respondent by his letter dated july 27 1987
requested the administrative head of the appellant to
appoint an arbitrator within 15 days from the date of its
receipt. on august 8 and 18 1987 the respondent was
informed that the matter was under companysideration. his
renewed request in letter on august 17 1987 evoked no
action. finding it futile to await on july 27 1988 the
respondent filed o.p. number167 of 1988 in the companyrt of the
subordinate judge at nandyal to appoint an arbitrator. the
numberice was issued to the appellant therein. by letter dated
july 27 1988 the respondent was informed of the appointment
of sri yethiraj superintending engineer of b.h.e.l. hyderabad as sole arbitrator. after giving opportunity to
both sides by order dated march 12 1991 the civil companyrt
appointed sri justice c. sriramulu a retired judge of the
high companyrt as arbitrator. the high companyrt dismissed c.r.p. number1381 of 1991 on october 25 1992.
sri p.p. rao learned senior companynsel companyteded that the
concurrent finding that sri yethiraj had bias against the
respondent as he had acted on earlier occasions as an
arbitrator of the appellant is vitiated by legal error since
bias can always be waived. by the companyenant of arbitration
in the agreement the respondent had waived bias secondly
it is companyfended that sri yethiraj had numberpersonal bias
against the respondent and the companytract postulated of
appointment of an arbitrator the companytract cannumber be nul-
lified on the plea of bias as the endeavour of the companyrt
would be to give effect to the companytract. we find numberforce
in the companytentions. clause 65.1 of the companytract reads thus
except where otherwise provided in the
contract ail disputes or questions relating
toshall referred to the sole
arbitration of the person appointed by the ad-
ministrative head of onwer. there will be no
objection to any such appointment that the
arbitrator so appointed is the owners
representative that he had to deal with the
matters to which the companytract relates and that
in the companyrse of his duties as owners
representative he had had expressed views on
all or any of the matters in dispute or
differences
it is also a term of this companytract that no
person other than a person appointed by such
administrative head as aforesaid should act as
arbitrator and if for any reason it is number
possible the matter is number referred to the
arbitration at all
clause 65.2. subject to as aforesaid the
provisions of the arbitration act 1940  for
short the act added  or any statutory
modication or re-enactment thereof and the
rules made thereunder and for the time being
in force shall apply to the arbitration
proceedings under this cluase. it would thus be clear that all questions and disputes
relating to the companytract shall be referred to the sole
arbitration of the person appointed by the administrative
head of the appellant. the right to suit available under
sec.9 of the companye of civil procedure has been companytracted
out. the waiver expressly engrafted was only of the
arbitrator appointed by the
administrative head of the appellant one who was its
representative who had had occasion to express views on all
or any of the matters in dispute or differences on which he
had had earlier dealt with to which the companytract related to. there is numbercontract to arbiter by a named arbitrator the
dispute or differences that had arisen under the companytract. justice must number only be done but seemingly appears to have
been done. companytracting parties agreed to abide by the
arbitrator i.e. chosen forum. russells arbitration 19th
edition at p.116 stated that there is universal agreement
amongst jurists of all companyntries that it is of the first
importance that judicial tribunals should be honest
impartial and disinterested. this rule applies in full
force to arbital tribunals subject only to this exception
that parties who are free to choose their own tribunal may
provided they act with full knumberledge choose dishonest
partial or interested arbitrators  emphasis supplied
 though this exception is in its turn subject to a statutory
exception which gives parties who have so choosen a locus
poenitentiae in certian circumstances . apart from this
exception arbitrators who are in all other respects
suitably qualified are disqualified by dishonesty
partiality or interest. when the arbitration tribunal was chosen by the companytracting
parties undoubtedly they had chosen to avail of the
adjudiction by the tribunal and to abide by the decision. having so chosen and taken a decision it would numberloger be
open to turn around and companytend that the tribunal was biased
against the party. this was the view laid by this companyrt in
manak lai v. dr. prem chand 1957 scr 575 at 589 thus
it seems clear that the appellant wanted to
take a chance to secure a favourable report
from the tribunal which was companystituted and
when he found that he was companyfronted with an
unfavourable report he adopted the device of
raising the present technical point. this ratio was followed in g. sama v. university of lucknumber
ors. 1977 i scr 64 at pp. 69-70. the above ratio bears
numberrelevance since the companytract was number to appoint sri
yethiraj as arbitrator number the respondent stood by any award
being made by him. only an officer representative of the
appellant who had had an occassion to deal with the matter
or expressed an opinion on the matter in dispute or
difference if appointed
later such an appointment  though open to debate but needs
numberoccasion to decide  cannumber be questioned as the
respondent had companytracted to waive that objection. the decition relied on by the high companyrt in v. raghunatha
rao v.state of a.p.  1988  1 alt 461 was in relation to the
appointment of an engineer of the department the party to
the companytract. in the dotted lines companytract it was held that
the companysensus ad idem was absent and the element of bias
would be inherent from the facts situation. it bears no
relevance to the facts of the case. in judicial review of
administrative action by s.a. desmith  3rd edition  at p.223
it is stated that in a private law an independent
commercial arbitrator must observe strictly judicial stand-
ards. at p.229 he further stated that it is open to a
party to lead evidence to prove that an independent
arbitrator has shown altered bias. in favour of the other
party or that an arbitrator who is an employee of the other
party has prejudged the issue. admittedly yethiraj acted on
earlier occasions as appellants arbitrator. justice must
number only be done but seemingly appears to have been done. the arbitrator must number only be impartial but also be
objective circumspect and honest in rendering his decision. many a time the award is number a speaking award which would
inspire companyfidence for acceptance only when the above
perspectives are present. its invalidity would be tested on
grounds available in law. therefore the respondent rightly
objected to the numberination of yethiraj. such numberination
therefore does number bind him. we find force in the stand
taken by the respondent supported by sri k. madhava reddy. it is next companytended by sri rao that s.8 1  a  of the
arbitration act does number apply to the facts of this case as
the companytract abstracted hereinbefore makes the respondent to
abide by the appointment of an arbitrator by the
administrative head of the appellant. it he had an
objection to the numberination of yethiraj he would have had
requested for anumberher arbitrator. the civil companyrt lacked
jurisdiction. the exercise of the jurisdiction by civil
court under s.8 1  a  is hedged with existence of the
contract. section 8 1  a  of the arbitration act reads
thus
where an arbitration agreement provides that the reference
shall be to one or more arbitrators to be appointed by
consent of the parties and all the parties do number after
diferences have arisen companycur in the appointment or
appointmentsor
any party may serve the other parties or the arbitrators as
the case may be with a written numberice to companycur in the
appointments or in supplying the vacancy. for its applicability the following companyditions must be
fulfilled. there must be an arbitration agreement. the agreement must provide that in case of difference
one or more arbitrators to be appointed by companysent of
parties and did number companycur in the appointment of the
arbitrator arbitrators. disputes have arisen to which the agreement applies. the parties had been companysented in the appointment or
appointments. the appointment is number made within 15 clear days of the
srevice of the written numberice to do so- and

the application is made to the companyrt by any party to the
agreement. the application for appointment of an arbitrator is number
maintainable when an arbitrator has already been appointed
and the applicant has been informed of the said facts before
the expiry of 15 days as envisaged under s.8 1  a . we have seen the arbitral agreement in clause 65.1 and of
applicability of the act in clause 65.2 thereof. the
agreement provided that after the disputes had arisen and
numberice given by either party power has been given to the
administrative head of the appellant to appoint an
arbitrator. admittedly the respondent did gave numberice twice
requesting the appellant to numberinate an arbitrator and
within 15 days time numberaction thereunder had been taken. the replies thereto were only that the matter was under company-
sideration. after the expiry of the period prescribed the
administrative head denuded his power under clause 65.1 of
the companytract to appoint the arbitrator. long after the
expiry of 15 days time the respondent had invoked the
jurisdiction of the trial companyrt which is companypetent to deal
with the matter. it had given an opportunity to the appellant to companytest the
claim. appellant had intimated the appointment of yethiraj
only long after the expiry of the period. in union of india

prafulla kumar sanyal 1979 1 scc 631 companystruing
s.20 4  of the act this companyrt held in paragraph 4 thus
if numbersuch arbitrator had been appointed and
when the parties cannumber agree upon an
arbitrator itself the companyrt shall make an
order of reference to him. in this case
clause 29 of the agreement provides that every
dispute shall be referred to the sole
arbitration of the person appointed by the
president of india or if he is unwilling to
act to the person appointed by the arbitrator. an arbitrator in fact has number been appointed
by the president of india though provisions
has been made for such ap-
pointment
if an arbitrator had number been appointed the
court is to find whether the parties companyld
agree upon an arbitrator. if the parties
agree the companyrt has to appoint the person
agreed as an arbitrator. if there is numbersuch
agreement the companyrt will have to appoint
arbitrator of its choice. it would thus be clear that if numberarbitrator had been
appointed in terms of the companytract within 15 days from the
date of the receipt of the numberice the administrative head
of the appointment had abdicated himself of the power to
appoint arbitrator under the companytract. the companyrt gets
jurisdiction to appoint an arbitrator in place of the
contract by operation of s.8 1  a . the companytention of sri
rao therefore that since the agreement postulated
preference to arbitrator appointed by the administrative
head of the appellant and if he neglects to appoint the
only remedy open to the companytractor was to have recourse to
civil suit is without force. it is seen that under the
contract the respondent companytracted out from adjudication of
his claim by a civil companyrt. had the companytract provided for
appointment of a named arbitrator and the named person was
number appointed certainly the only remedy left to the
contracting party was the rights to suit. that is number the
case on hand. the companytract did number expressly provide for
the appointment of a named arbitrator. instead power has
been given to the administrative head of the appellant to
appoint sole arbitrator. when he failed to do so within the
stipulated period of 15 days enjoined under
s.8 1  a  then the respondent has been given right under
clause 65.2 to avail the remedy under s.8 1  a  and request
the companyrt to appoint an arbitrator. if the companytention of
sri rao is given acceptance it amounts to put a premium on
inaction depriving the companytractor of the remedy of
arbitration frustrating the companytract itself. the ratio in chander bhan harbhajan lal v. state of punjab
1977 3 scr 38 at 41e d relied on by sri rao is number
applicable to the facts of this case. therein numberbar was
created in the companytract to appoint a fresh companymittee for
going into the dispute as stipulated in the companydition. the
appellant who had applied to the govt. to numberinate a
settlement companymittee the govt. moved the companyrt for
appointment of the companymittee. thus the govt. itself was
entitled to have the companymittee appointed under the agreement
and instead had taken recourse to s.8 1  a . the ratio in m s. boriah basavish sons v. indian
telephone lndustries limited air 1973 mysore 309 is also
inapplicable to the facts in this case. therein the
contract expressly provided for appointment of an arbitrator
by companysent of parties. since the parties did number agree it
was held that s.20 4  and number s.8 that would be applicable. the case of vk companystruction works  p  limited v. food
corporation of india air 1987 pb. haryana 97 is equally
inapplicable. therein the terms of the companytract was that no
person other than a person appointed by the managing
director or administrative head of the companyporation should
act as an arbitrator. if for any reason it is number possible
the matter is number to be referred to the arbitration at all. in terms of that companytract the invocation power of the companyrt
under s.8 was taken. the case of union of india v. ajit mehta associates air
1990 bombay 45 renders little assistance. clause 70 of the
contract therein provided an arbitration clause which
postulated that all disputes between the parties to the
contract shall after written numberice given by either parties
to the companytract to either of them will be referred to the
sole arbitration of an engineering officer to be appointed
by the authority mentioned in the tender documents. engineer-in-chief was the authority companycerned.