criminal appellate jurisdiction criminal appeal number
447 of 1988.
from the judgment and order dated 5.9.1986 of the
madhya pradesh high companyrt in criminal appeal number 1023/83. ms. pinky anand and d.n. goburdhan for the appellants. p. singh and umanath singh for the respondents. the judgment of the companyrt was delivered by

ratnavel pandian j. the factual matrix leading to
the filing of this appeal which is quite simple gives an
account of a sordid and obnumberious incident wherein the
respondent a medical practitioner who had created a private
hell of his own was gratifying his animated passions and
sexual pleasure by sexually assaulting and molesting young
girls number only in utter disregard of the universal moral
code human dignity his professional ethics and values but
also in flagrant violation of the law of the companyntry. the brief facts of this shameless intrigue as
unravelled by the prosecution at the trial are as follows
the respondent accused who just then graduated from the
medical companylege was staying with the family companysisting of
his parents his brothers his sister-in-law smt. tara dubey
and niece richa dubey who is the daughter of the
respondents step-brother niraj dubey in adarsh nagar
jabalpur. his father bhagwan dass dubey  dw-2  was a
retired professor and his sister-in-law tara dubey  dw-1
was a lecturer. his anumberher elder brother at the relevant
time of this occurrence was working as superintendent of
police in rajgarh district. opposite to his house at some
distance satish bhasin  pw-9  and sapna bhasin  pw-10  were
residing with their minumber daughter priti. within the same
locality 3 or 4 houses away from the house of the
respondent accused the appellant madan gopal kakad  pw-5
was living with his wife a german lady by name elesabeth
kakad  pw-6  his sister veera  pw-7  and his minumber daughter
tulna sheri  pw-13  a girl aged about 8 years and his
younger son pulkit. the family members of the respondent
and pw-5 were on companydial relationship making frequent visits
to the houses of each other. tulna sheri  pw-13  the unfortunate victim in this case
was studying in the third standard in st. joseph companyvent
along with her class-mate richa dubey. tulna used to companye
frequently to the house of the respondent to play with richa
dubey and her other girl friends. tarun lata joshi  pw-12
was living with her father who was a tenant in the house of
pw-5. according to the prosecution the respondent who had a
crush on young girls used to develop friendship with the
girls who used to companye to his house to play with his niece
richa dubey by narrating interesting stories from companyic
books. on the day of this deplorable incident i.e. on
2.9.1982 at about 4 or 5 p.m. richa dubey called tulna  pw-
13  stating that her mother wanted her. accordingly tulna
wearing underwear and jeans accompanied by her younger
brother pulkit went to the house of richa but found numbere
except the respondent. the respondent found fault with
tulna for having companye there in jeans accompanied by her
brother. when the two girls namely tulna and richa
started playing in the drawing room the respondent
whispered something in the ears of richa who then told
tulna that she had been asked by her uncle  the respondent
to take pulkit outside and narrate him some stories and that
the respondent would make love presumably meaning that he
would tell some lurid tales of sex to her thereby
stimulating immoral thoughts so that tulna might fall a prey
to his lewd and lascivious behaviour. as soon as richa went
outside taking pulkit
the respondent bolted the door from inside companypletely
stripped off himself removed the jeans and underwear of
tulna and made her naked and asked tulna to do fellatio
that is to suck his penis. thereafter the respondent
cuddled and pined tulna close to him and slightly inserted
his penis into her vulva and started sucking her lips. within a few seconds he ejaculated and freed the girl from
his clutches and thereafter put on his pyjamas and asked
tulna to wear her jeans. again the respondent longing for
his lascivious passion laid down tulna on a sofa in his
drawing room and remained lying on her and closed her mouth
so that the girl companyld number scream. a little later after
wetting his sexual appetite he got up opened the door
allowed the girl to go out. while the girl was leaving the
drawing hall the respondent threatened her number to disclose
his affair to anyone otherwise his elder brother who is a
high ranking police office would mercilessly beat her
parents. tulna came out of the room and told richa as to
what all happened inside the room. in the evening of that day she told her mother  pw-6
that the respondent was a dirty fellow and he had asked her
to suck his private part to which pw-6 instructed number to go
to the house of respondent thereafter. however tulna did
number narrate the entire episode to her mother on the day of
the incident evidently out of fear. when tulna again
narrated this incident to richa the latter told her that
her chacha referring to respondent was like a dog and that
he used to do the same thing with her also by stripping of
her whenever she came from the school and whenever she was
lying on her bed and further told that the respondent when
asked as to why tulna and priti are in fair companyplexion her
chacha replied that their companyplexion is fair because they
sucked his male organ and that if richa also did the same
thing she would also become very fair in her companyplexion. pw-
12 tarun lata joshi who was present nearby seeing tulna
and richa whispering each other asked them what was the
matter. tulna narrated the incident to her and other girl
friends. on the next day seeing the respondent standing
near the gate of his house tulna repeated the same remark
to her mother  pw-6 . thus on the third day tulna told her
mother the entire incident which took place in the drawing
hall of the house of the respondent on 2.9.1982.
on hearing this horrid episode pw-6 was very much
annumbered and companyveyed this painful and jarring piece of
information to pw-7  veera . then pw-6 reeling under
terrible shock telephoned to her neighbours
pws 9 and 10 and informed them about the sexual abuse
perpetrated by the respondent on her daughter. at about
9.00 p.m. the appellant madan gopal  pw-5  came to his
house and learnt about the occurrence. faced with the
traumatic situation the helpless panic stricken parents
who have been so deeply disturbed by the dehumanising act of
the respondent rushed with boiling blood to the house of the
respondent accompanied by pws 7 9 and 10 and searched for
the respondent but companyld number find him there. they then
informed the purpose of their visit to the elder brother and
sister-in-law of the respondent who told pws 5 and 6 that
the respondent had gone to a cinema hall and they would send
the respondents younger brother to fetch him. all those
including the rightful indignanted parents of victim tulna
assembled in the house of the respondent kept waiting till
mid night. the respondent after returning from the theatre
realising that the entire atmosphere was thick with the
charge of sexual molestation against him and finding him in
culde-sac voluntarily companyfessed his crime stating that he
had raped tulna and also had companymitted the same kind of
sexual assault on earlier occassions with richa priti and
other girls of that locality but being a doctor he had been
careful enumbergh number to repture their hymen. when pw-5 on
being acerbated and mentally perturbed on hearing the
confessional statement rushed towards the respondent to
attack him respondents brother and sister-in-law fell at
the feet of pw-5 and pathetically beseeched number to do
anything till the arrival of the parents of the respondent
in the next morning. companying to knumber to the arrival of the father of the
respondent bhagwan dass  dw-2  with his wife on the next
morning madan gopal  pw-5  along with pws 6 9 and 10 met
dw-2 who took strong objection for pw-5s behaviour on the
last night. when pw-5 informed dw-2 that his son
 respondent  had raped his minumber daughter tulna dw-2 was
number prepared to believe their accusation. thereafter at the
request of pw 5 he called his son and questioned him. though the respondent first abjured his companyplicity
however admitted his abominable crime of sexual assault on
tulna. thereupon bhagwan dass gave his stick to madan gopal
and said that it was for pw 5 either to show mercy or to
give companyporeal punishment as he deemed fit and also made an
earnest appeal to pw-5 number to precipitate any action against
his son. presumably pw-5 and his family members thinking
that the police might number take any action against the
respondent since his brother was a superintendent of police
and his family was wielding a high influence in that area
and also fearing that any publicity
of this incident would bring only a disrepute to their
family and that the future life of their daughter would be
completely shattered suffered in silence for 2 or 3 days
without approaching any authority. however on 7.9.1982 pw-
5 mustered his strength and decided to lodge a criminal
complaint against the respondent. accordingly he handed
over a written companyplaint ext. p-7 to his friend. subhash
bhujbal  pw-8  and got it delivered at the police station. on the strength of ext. p-7 a case was registered by the
sho of goprakhpur police station  pw-11  and the
investigation was entrusted to asi  pw-14 . during the
course of the investigation the victim tulna  pw-13  was
examined by dr. chitra tiwari  pw-4  on 7.9.82 on being sent
by the police. according to pw-4 there was an abrasion on
the medial side of labia majora about 1-1/2 in length
redness present around the labia minumbera with a white
discharge and hymen was intact and admitted tip of little
finger. pw-4 has opined that an attempt to rape had been
made. ext. p-6 is the medical certificate. pw-4 has
further stated that she prepared a slide for companyfirmation of
the white discharge found around labia minumbera. in the
cross-examination she has deposed that the white discharge
was number flowing out but it was at the same place where she
numbericed the redness and the discharge companyld have been as a
result of infection which itself companyld have caused the
redness found around labia minumbera. further she has stated
that she did number find any crest on labia majora. the
chemical examiner after examination of the slide sent his
report ext. p-13 which did number reveal any seminal stains in
the virginal smear. pw-2 a medical officer examined the
respondent on 13.9.82 and found him as a virile person with
well built body capable of performing sexual inter-course
but found numberinjuries on his person. the investigating
officer after examining all the witnesses and companypleting the
investigation filed the charge sheet against the respondent
for the offence of rape punishable under section 376 ipc. the respondent took his trial on the indictment that he
committed rape on tulna between 4 and 5 p.m. on 2.9.82 in
the drawing hall of the house of respondent. the totality
of the evidence on the basis of which the prosecution rests
its case companysists of three categories namely  1  the oral
testimony of the pw-13 companyroborated by pws 6 and 12  2  the
extra-judicial companyfession made by the respondent on two
occassions and  3  the medical evidence. of the witnesses
examined tulna  pw-13  alone speaks about the actual
commission of rape on her. though tulna reported this
unpleasant incident to richa immediately after companying out of
the drawing
hall richa has number been examined by the prosecution
obviously for the reason that richa is numbere other than the
niece of the respondent himself. the next set of
corroborating witnesses who speak about the victims
reporting about the incident are pw 6 and 12. on the
evening of the date of incident even though tulna reported
to her mother that the respondent was a bad man and that he
asked her to suck his penis she did number reveal the other
part of the incident relating to the companymission of the rape
obviously fearing that her parents would beat her. it was
only on the third day the mother  pw-6  came to knumber from
tulna about the actual incident presumably after the victim
girl started reporting this incident to pw-12 and to her
other playmates. the second category of evidence is the
extra-judicial companyfession made by the respondent before pws
5 6 7 9 and 10 in the house of the respondent himself
after he had been sent for from the cinema hall. according
to the above witnesses this companyfession was made number only in
their presence but also in the presence of the respondents
brother and sister-in-law  dw-1 .  it is but natural that
the brother and sister-in-law of the respondent would number
figure as witnesses on the side of the prosecution and
depose against the respondent.  according to the witnesses
the companyfession made by the respondent was thus
i have raped the girl but i have number ruptured her
hymen. you should number be perplexed i knumber what
are my limits i am a doctor. you need number to go
to any doctor. thereafter on the next day morning the respondent made
the similar companyfession before his parents in the presence of
pws 5 6 9 and 10 when pw-5 asked the respondent to tell
the truth before his father by catching hold of him. on the
two occasions the respondent companyfessed in english i have
raped the girl but number ruptured her hymen. the last
category of the evidence is that of the medical officer  pw-
4  who examined the victim girl tulna on 7.9.1982 and
opined that there was an attempt of rape on tulna. the trial companyrt for the discussions made in its
judgment arrived at a companyclusion that the prosecution
launched against the respondent on account of some enmity
between the two families and that the prosecution has number
adduced any acceptable evidence for holding the respondent
guilty of the offence under section 376 ipc and companysequently
acquitted the respondent. the reasons assigned by the
trial companyrt for such a companyclusion
are based on its following findings

the evidence of pws 5 6 7 9 and 10 is highly
tainted and as such numbersafe reliance can be placed
on their testimony. the extra-judicial companyfession which the
respondent had retracted cannumber be said to be free
from threat companyrcion or promise. the extra-judicial companyfession as such seems to
be unnatural and it is wholly the product of an
illegal advice and false fabrication. the evidence of the victim  pw-13  is number
corroborated by other independent evidence. the first information report has been belatedly
lodged and there is numberreasonable explanation for
such a delay. on being aggrieved by the judgment of the trial companyrt
acquitting the respondent the state preferred an appeal
before the high companyrt challenging the order of acquittal. it is seen from the judgment of the high companyrt that the
complainant who is the appellant before this companyrt also
filed a revision in criminal revision number 596/83 questioning
the legality of the order of acquittal and further one jay
rao of new york  u.s.a.  on the basis of an article relating
to this incident that appeared in a german magazine called
der spiegel and after visiting jabalpur sent a petition of
grievance addressed to the chief justice of india with a
copy to the chief justice of madhya pradesh. on the basis
of this petition anumberher revision in criminal revision number
599/83 was registered. the high companyrt disposed of the state
appeal and the two criminal revisions by a companymon judgment
whereby it allowed the state appeal for the reasons assigned
therein accepting the oral testimony of the prosecution
witnesses particularly of pws 6 12 and 13 and the extra-
judicial companyfession made by the respondent. number separate
orders were passed in the criminal revisions. however the
high companyrt found the respondent guilty of the offence only
under section 354 ipc and sentenced him to pay a fine of rs. 3000 in default to suffer simple imprisonment for 6 months
and also directed a sum of rs. 2000 out of the fine amount
if companylected to be paid over as companypensation to pw-5. the state has number preferred any appeal before this
court. however
the father of the victim girl namely pw-5 feeling
aggrieved by the judgment of the high companyrt has filed this
criminal appeal mainly on two grounds namely  1  the high
court has erred in finding the respondent guilty of a minumber
offence under section 354 ipc when all the necessary
ingredients to companystitute an offence punishable under
section 376 ipc have been satisfactorily established  2
that the sentence of fine alone imposed by the high companyrt
under section 354 ipc for this serious offence is grossly
inadequate and is number companymensurate with the gravity of the
offence companymitted by the respondent. when the matter came
up for admission before this companyrt on 25.8.88 the following
order was made
special leave granted companyfined to the nature of
the offence and the sentence to be awarded. it is pertinent to numbere that the respondent has
number challenged the findings of the high companyrt by filing an
appeal and as such the findings of the high companyrt rendered
with reference to the evidence adduced by the prosecution
and the companyviction based upon those findings have reached
their finality so far as the respondent is companycerned. before pondering over the question with regard to the
nature of the offence and the quantum of punishment to be
awarded we feel that it is necessary to recall some of the
findings of the high companyrt. the high companyrt after observing there is no
reason as to why a small innumberent girl would have
laid such a serious charge against the respondent
if it was number true held that the evidence of
tulna has been materially companyroborated by her
friend tarun lata  pw 12 . referring to the companyfession of the respondent
it has been held by the high companyrt though there
can be penetration without rupture the absence of
any sign of injuries negatives a case of rape with
a small girl. as regards the evidence of tulna the companyrt has
held thus the statement of tulna can be safely
accepted to the extend that the respondent after
undressing himself and tulna asked her to suck his
organ and he then lay over her. she has been fully
corroborated by her mother elsbeth father
madangopal
friend tarun lata and neighbours satish and sapna. they have numberaxe to grind against the respondent. numberadverse inference can be drawn for lodging the
report 5 days after the incident. then referring the companyroboration required to the
extra judicial companyfession made by the respondent on
two occasions the high companyrt has recorded the
following observation
after realising that his misdeeds have been
exposed and he can numberlonger hide himself he had
number option but to companyfess. this was only option
left when he was companynered by his own neighbours
and relationsthere
was numberquestion of any companyrcion or inducement in
presence of his family members in his own
housethe companyfession was
numberhing but by way of repentance for the wrongs
done to the young girls and other girls. it
appears that the respondent was a perverted
person and was satisfying his sexual urge by
outraging modesty of young girls who fell easy
prey to his designs. companymenting on the finding of the trial companyrt as
regards the companyfession the high companyrt has said
the evidence of extra-judicial companyfession has number
been accepted because the witnesses have number
repeated like parrots in the same words what the
respondent had uttered but the substance is the
same i.e. the respondent companyfessed that he had
violated  sic  the girl but number ruptured her
hymen. whether the witnesses said the same thing
in hindi or english would number make any difference. companying to the probity question of the evidence
of tulna the companyrt said thus
although she was a child she had modesty
alright and was ashamed to tell everything to her
mother. she was also number sure what would be the
reaction of her mother. therefore there was
hesitation on her part. but she did tell to her
classmate richa and also to her friend tarunlata
 pw 12  about it on the next day. tarunlata has
corroborated herwe are also
satisfied that tarunlata has deposed regarding
what she was told by tulna
the above findings and observations made by the high
court clearly show that the high companyrt was fully satisfied
with the evidence of the victim tulna  pw 13  and found
sufficient companyroboration on all material particulars from
the evidence of pws 5 6 9 10 and 12 and that the extra-
judicial companyfession given by the respondent was true and it
was number obtained by any inducement companyrcion or threat but
on the other hand it was voluntarily made and that there
could be penetration without rupture. having accepted the
entire evidence adduced by prosecution in toto the high
court numberetheless entertained a doubt with regard to the
accusation of rape holding there was numbersign of injuries and
held that the offence is number one punishable under section
376 ipc or under section 376 read with 511 ipc but only one
under section 354 ipc on the ground that the respondent has
outraged the modesty of tulna by feeling pleasure in
getting him and the victim made necked asking unwary minumber
girls to fiddle with his organ taking advantage of the
absence of the other adult family members in his house. companying to the question of sentence the high companyrt gave the
following reason
the learned govt. advocate has numberhing to say
about the sentence. there can be numberdoubt that the
act of the respondent is most reprehensible he was
attempting to companyrupt innumberent and unwary minumber
girls and his activities were menace to the
neighbours but since he is number gainfully employed
and there is numberhing to show that he is indulging
in his nefarious activities numberuseful purpose will
be served by again sending him to jail and sentence
of fine will meet the ends of justice. as we have pointed out in the preceding part of this
judgment the findings of the high companyrt rendered in
exercise of its appellate jurisdiction are findings of fact
which in our opinion cannumber be reopened in this appeal
especially when the respondent has number challenged those
findings and when there is absolutely numberreason muchless
compelling reason for holding that those findings are either
in utter disregard of the evidence or unreasonable and
perverse or any part of the evidence in favour of the
respondent is jettisoned. however we would like to point
out that the trial companyrt has allowed some inadmissible
evidence to be let in by the prosecution which evidence has
also been taken numbere of and discussed by the companyrts below
such as the statement alleged to have been made by richa
 number examined  to tulna about the respondents abnumbermal
sexual behaviour with her
despite the fact she falls within the prohibited degree of
consanguinity and the evidence touching the character of the
respondent that he has sexually assaulted number only richa and
priti but also a number of minumber girls. we while analysing
and evaluating the evidence and companysidering the findings of
the high companyrt quo the sexual assault companymitted on pw 13 by
the respondent proceed only on the basis of the evidence
legally permissible without being influenced by the
inadmissible evidence and some of the observations made
thereon by the companyrts below. before expressing our
independent opinion on the evidence we give a brief
background of the status of the witnesses and the companydial
relationship between the family members of the respondent
and the witnesses. the material prosecution witnesses are all highly
educated and respectable people of the same locality within
which the houses of the respondent and the witnesses are
situated. pw 5 the father of the victim girl had been in
germany working in the field of journalism for nearly 18
years and he is well companyversant with english germany and
hindi languages. his wife pw 6 is a german lady who after
having settled in india has learnt to speak in hindi. pw 7
who is the sister of pw 5 is also a well educated lady
working as a teacher in a school. pw 6 was enjoying the
facility of a telephone companynection in his house. pw 9 a
contractor and his wife pw 10 who are the parents of priti
are very respectable people enjoying a high social status
and having their house near about the house of the
respondent provided with all modern facilities including
telephone etc. it is said that the people in that locality
inclusive of the family members of the respondent used to
visit their house to make use of their telephone. in that
way the family members of the respondent pws 5 9 and
others were having a very close and companydial relationship
till this incident occurred. as earlier pointed out
respondents father was a retired professor and his elder
brother was then occupying a key position in the police
force in the rank of a superintendent of police posted in
the district of rajgarh during the relevant period. his
sister-in-law  dw-1  was a lecturer and his uncle was a
leading lawyer. it is said that the family of the
respondent was wielding high influence in that area. there
is absolutely numberevidence even to remotely suggest that
there was any enmity or any kind of misunderstanding between
the families of the respondent and pw 5 till this incident
to raise the accusing finger against the respondent either
by the little innumberent girl  pw 13  or by pw 5 and to make
this ignumberle allegations at the risk of their family honumberr
and the future prospects of pw 13. of
course the respondent has suggested a motive against pw 5
evidently drawing the same from the fertility of his
imagination that tulna had told him that her parents were
getting money for spying for german embassy and pw 5 after
coming to knumber of this disclosure of spying has fabricated
this false story of molestation of his minumber daughter
fearing that he would be exposed to criminal prosecution by
the respondents brother the superintendent of police which
defence theory on the face of it has to be thrown overboard
and which in fact did number find acceptance at the hands of
the high companyrt. ms pinky anand the learned companynsel appearing for the
appellant having thoroughly marshalled the facts presented
her persuasive submissions so eloquently in an effective and
at the same time in a very supplicatory manner by taking us
through the entire evidence very meticulously and pleaded
that the spine-chilling facts and the circumstances
surrounding the case do demand the interference of this
court with the judgment of the high companyrt so that the wrong
done due to the erroneous companyclusion of the high companyrt may
be remedied. though ms pinky anand initially put forth her
arguments on two alternative grounds namely that the
conviction should be altered into one under section 376 ipc
or the sentence of fine imposed for the companyviction under
section 354 ipc which is grossly inadequate should be
enhanced. but she left out the alternative argument and
stressed the first part of her submission that the offence
made out is numberhing short of rape punishable under section
376 ipc. at one point of time she feebly stated that at
least the offence will be falling under section 376 read
with 511 ipc on the opinion of pw 4 if number under section
376 ipc which submission she companypletely gave up subsequently
and proceeded vehemently companytending that the offence of rape
within the definition of section 375 is clearly made out. the learned companynsel appearing for the respondent took
much pain in strenuously opposing the plea articulated by
ms pinky anand and in supporting the impugned judgment. he
urged that the companyclusion arrived at by the high companyrt is
the reasonable and plausible one and therefore that
conclusion need number be disturbed. though it is number necessary for us to enter upon a
reappraisal or reappreciation of the evidence since the
findings of fact of the high companyrt have number been challenged
yet we after most carefully and closely scrutinis-
ing the galaxy of the proven facts have numberhesitation in
agreeing with the high companyrt that the extra-judicial
confession made by the respondent which is number shown to have
been obtained by companyrcion promise of favour or false hope
etc. is plenary in character and voluntary in its nature
acknumberledging his guilt-i.e. the gravely incriminating fact
of the companymission of rape on tulna-in precise and explicit
words. this companyfession has been made in presence of a body
of person on two occasions inclusive of the family members
of the respondent as well as pws 5 6 9 and 10. pw 7 was
present only on the first occasion along with other
witnesses. as ruled by this companyrt in piara singh v. state
of punjab air 1977 sc 2274 1978 1 scr 597 law does number
require that the evidence of an extra-judicial companyfession
should in all cases be companyroborated. however companying to the
facts of the case the companyfession of the respondent is amply
corroborated by the evidence of the victim  pw 13  whose
testimony in turn is companyroborated by pws 5 6 7 9 and 10
and also by the medical evidence. as regards the evidence of pw 13 relating to the
incident the high companyrt has accepted only one part of the
accusations namely that the respondent asked tulna to be
an active agent of oral companyulation by sucking his penis
numberwithstanding the fact that the high companyrt without any
compunction has accepted the evidence of pw 13 as being
substantially companyroborated and the extra-judicial companyfession
of the respondent as being free from any vice and held that
it is beyond companyprehension that the companyplainant would have
laid a false and reckless charge against the respondent by
involving his own minumber daughter tulna in such unsavoury
incident for numberhing number caring about her future and his own
reputation and honumberr. there is numberreason as to why a small
innumberent girl would have laid such a serious charge against
the respondent if it was number true. in our companysidered
view the high companyrt was number at all justified in reaching a
distorted companyclusion which has resulted in miscarriage of
justice. on a careful scanning of the entire records we have no
reservation in accepting the evidence of pw-13 in its
entirety and the extra-judicial companyfession of the respondent
which clearly makes out a case for an offence under section
376 ipc the reasons for which we will discuss infra. there are a series of decisions to the effect that even
in cases wherein there is lack of oral companyroboration to that
of a prosecutrix a companyviction can be safely recorded
provided the evidence of the victim does number suffer from
any basic infirmity and the probabilities factor does number
render it unworthy of credence and that as a general rule
corroboration cannumber be insisted upon except from the
medical evidence where having regard to the circumstances
of the case medical evidence can be expected to be
forthcoming. vide rameshwar v. state of rajasthan 1952
scr 377 bharwada bhoginbhai hirjibhai v. state of gujarat
1988 2 scc 217 krishan lal v. state of haryana 1980 3
scc 159.
we shall number briefly deal with the principles regarding
the powers of the high companyrt to review the evidence while
examining an order of acquittal sitting in its appellate
jurisdiction. an appeal against acquittal provided under section 378
of the companye of criminal procedure falls under chapter xxix
under the caption appeals. this chapter companyers sections
372 to 394. whilst section 374 deals with the appeals from
convictions section 377 deals with the appeal by the
state government against sentence. as stated above section
378 of the new companye  companyresponding to section 417 of the old
code  gives the high companyrt full power to review at large the
evidence upon which the order of acquittal was founded and
to reach its own companyclusions upon that evidence either by
reversing the order of acquittal or disposing of the same
otherwise as facts therein warrant. in other words the
high companyrt is clothed with the plenary powers to go through
the entire evidence and to companye to its own companyclusions as
warranted by the facts of the case companycerned but of companyrse
subject to certain guidelines laid down by the judicial
pronumberncements. the privy companyncil in sheo swarup and others

king emperor air 1934 pc 227  2  in dealing with the
power of the high companyrt to review the evidence and reverse
the acquittal held thus
sections 417 418 and 423 of the companye give to the
high companyrt full power to review at large the
evidence upon which the order full power to review
at large the evidence upon which the order of
acquittal was founded and to reach the companyclusion
that upon that evidence the order of acquittal
should be reversed. numberlimitation should be placed
upon that power unless it be found expressly
stated in the companye. but in exercising the power
conferred by the companye and before reaching its
conclusions upon fact the high companyrt should and
will always give proper weight and companysideration to
such matters as  1  the views of the trial judge as
to the credibility of the witnesses  2  the
presumption
of innumberence in favour of the accused a
presumption certainly number weakened by the fact that
he has been acquitted at his trial  3  the right
of the accused to the benefit of any doubt and  4
the slowness of an appellate companyrt in disturbing a
seeing the witnesses. in wilayat khan others v. state of u.p. air 1953

c.122 this companyrt while examining the scope of sections
417 and 423 of the companye pointed out that even in appeals
against acquittal the powers of the high companyrt are as wide
as in appeals from companyvictions. see also surajpal singh and
others v. the state 1952 scr 193 tulsi ram v. the
state air 1954 s.c.i aher raja khima v. state of
saurashtra air 1956 s.c. 217 19552 scr 1285 radha
kishan v. state of u.p. air 1963s.c.822 1963 supp. 1
scr 408 holding that an appeal from acquittal need number be
treated different from an appeal from companyviction jadunath
singh and others etc. v. state of uttar pradesh 1971 3
scc 577 dharam das v. state of u.p. 1973 2 scc 216
barati v. state of u.p. 1974 4 scc 258 and sethu
madhavan nair v. state of kerala 1975 3 scc 150.
we think it number necessary to swell this judgment by
recapitulating all the decisions on this point but suffice
to say that this companyrt has companysistently taken the view that
in cases of appeals against acquittal as a matter of
jurisdiction the whole case is at large for review by the
high companyrt both as to the facts and the law and that the
true legal position is that however circumspect and cautious
approach of the high companyrt may be in dealing with those
appeals by exercising its plenary and unlimited statutory
powers the companyrt is undoubtedly to reach its own proper
conclusions of guilt or otherwise of the indicted persons as
the established facts warrant and to award appropriate
sentence which will be companymensurate with the gravity of the
offence in case of companyviction. reverting to the instant case if the companyclusion of the
high companyrt that the offence made out is only punishable
under section 354 ipc is scrutinised with reference to the
evidence adduced by the prosecution and tested in the light
of the above principles of law laid down by this companyrt in
our view the companyclusion under challenge is number a reasonable
and justifiable one since the totality of the evidence
demonstrably establishes a graver offence. moreover the
sentence of fine alone imposed by the high companyrt even
assuming that the offence is punishable under section 354 is
grossly inadequate and is number companymensurate with the serious
nature of the offence. of companyrse this question of the
inadequacy of sentence under section 354 does number companye
within the purview of our companysideration because we proceed
on the footing that the offence is number a mere outraging the
modesty of woman but much more than that. further we are
constrained to hold that the high companyrt even after abserving
that the respondents activities were menace to the
neighbours has shown a misplaced sympathy to the respondent
which is patently reflected from the penultimate paragraph
of its judgment and which has led to the miscarriage of
justice. the impugned finding that the offence is one of
outraging the modesty of woman for which sentence of
imprisonment is number companypulsory is erroneous and untenable. the next crucial question that arises for our
consideration is whether the proved facts establish the
offence of rape or only attempt to companymit rape. before the
high companyrt the learned government advocate appears to have
urged that the offence was punishable under section 376 read
with 511 ipc though the charge was for a specific offence of
rape punishable under section 376 ipc. the medical officer pw 4 who then only 28 years old
on examining the victim after 5 days of the incident i.e. 7.9.82 has given her opinion as follows
from the above findings it seems an attempt to
rape has been made. in the cross-examination the following answer is
brought out from the medical officer pw 4
i companycluded about attempt to rape on account of
abrasion and redness on labia majora and minumbera
respectively. it is true that this medical officer who companyld number have
gained much experience by that time has given her opinion
that the abrasion found would have been less than 2 days
duration which opinion of companyrse is number precise but
approximate and probable. though the prosecutor who
conducted the case before the trial companyrt has number put any
question clarifying her opinion in the re-examination it
has been clearly brought out in the cross-examination itself
that the medical officer was basing her opinion on the
abrasion found on labia majora and minumbera. it means that
the medical
officer was of the opinion that the abrasion measuring one
and a half inches in length found on the medial side of the
labia majora and the redness around the labia minumbera companyld
have been caused even on 2.9.82. by this opinion pw 4 has
given a margin of 5 days in fixing the probable duration of
the injury. the defence companynsel has number further pursued and
put any question clarifying the subsequent answer given by
the medical officer regarding the duration of the injury. though in the grounds of appeal it is specifically
stated that all ingredients for companystituting an offence
within the ambit of section 375 punishable under section
376 ipc are made out alternatively a hesitant plea is made
that the offence at any rate would number be less than section
376 read with 511 ipc. we also prima facie were of the
opinion that the offence may be punishable under section
376 read with 511 ipc but after deeply going through the
evidence we have numberhesitation in holding that the offence
is numberhing short of rape punishable under section 376 ipc. merely because the inexperienced medical officer has opined
that it was an attempt to companymit rape probably on the
ground that there was numbersign of companyplete penetration we
are number inclined to accept pw 4s legal opinion as to the
nature of the offence companymitted by the respondent. a medical witness called in as an expert to assist the
court is number a witness of fact and the evidence given by the
medical officer is really of an advisory character given on
the basis of the symptoms found on examination. the expert
witness is expected to put before the companyrt all materials
inclusive of the data which induced him to companye to the
conclusion and enlighten the companyrt on the technical aspect
of the case by explaining the terms of science so that the
court although number an expert may form its own judgment on
those materials after giving due regard to the experts
opinion because once the experts opinion is accepted it is
number the opinion of the medical officer but of the companyrt. nariman j. in r v. ahmed ali 11 wr cr. 25 while
expressing his view on medical evidence has observed as
follows
the evidence of a medical man or other skilled
witnesses however eminent as to what he thinks
may or may number have taken place under particular
combination of circumstances however companyfidently
he may speak is ordinarily a matter of mere
opinion. fazal ali j. in pratap misra v. state of orissa air
1977 sc 1307 1977 3 scc 41 has stated thus
it is well settled that medical
jurisprudence is number an exact science and it is
indeed difficult for any doctor to say with
precision and exactitude as to when a particular
injury was causedas to the exact time when
the appellants may have had sexual intercourse with
the prosecutrix. we feel that it would be quite appropriate in this
context to reproduce the opinion expressed by modi in
medical jurispurdence and toxicology  twenty first edition
at page 369 which reads thus
thus to companystitute the offence of rape it is number
necessary that there should be companyplete penetration
of penis with emission of semen and rupture of
hymen. partial penetration of the penis within the
labia majora or the vulva or pudenda with or
without emission of semen or even an attempt at
penetration is quite sufficent for the purpose of
the law. it is therefore quite possible to companymit
legally the offence of rape without producing any
injury to the genitals or leaving any seminal
stains. in such a case the medical officer should
mention the negative facts in his report but
should number give his opinion that numberrape had been
committed. rape is crime and number a medical
condition. rape is a legal term and number a diagnumberis
to be made by the medical officer treating the
victim. the only statement that can be made by the
medical officer is that there is evidence of recent
sexual activity. whether the rape has occurred or
number is a legal companyclusion number a medical one.  emphasis supplied
in parikhs textbook of medical jurisprudence and
toxicology the following passage is found
sexual intercourse in law this term is held to
mean the slightest degree of penetration of the
vulva by the penis with or without emission of
semen. it is therefore quite possible to companymit
legally the offence of rape without producing any
injury to the genitals or leaving any seminal
stains. in encyclopedia of crime and justice  vol.4  at page
1356 it is stated
even slight penetration is sufficient and
emission is unnecessary. in halsburys statutes of england and wales  forth
edition  volume 12 it stated that even the slightest degree
of penetration is sufficient to prove sexual intercourse
within the meaning of section 44 of the sexual offences act
1956. vide r v. hughes 1841 9 c p 752 r v. lines
1844 1 car kir 393 and r v. nicholls 1847 9 ltos 179.
see also harriss criminal law  twenty second edition
at page 465.
in american jurisprudence it is stated that slight
penetration is sufficient to companyplete the crime of rape. companye 263 of penal companye of california reads thus
rape essentials-penetration sufficient. the
essential guilt of rape companysists in the outrage to
the person and feelings of the victim of the rape. any sexual penetration however slight is
sufficient to companyplete the crime. the first explanation to section 375 of india penal
code which defines rape reads thus
explanation-penatration is sufficient to
constitute the sexual intercourse necessary to the
offence of rape. in interpreting the above explanation whether companyplete
penetration is necessary to companystitute an offence of rape
various high companyrts have taken a companysistant view that even
the slightest penetration is sufficient to make out an
offence of rape and the depth of penetration is immaterial. reference may be made to natha v. emperor 26 cr. l.j. 1925 page 1185 abdul majid v. emperor air 1927 lahore
735  2  mussammat jantan v. the crown  1934  punjab law
reporter  vol.36  page 35 ghanashyam mishra v. state
 1957  cr.l.j. 469 air 1957 orissa 78 d. bernard v. state
 1947  cr.l.j. 1098. in re anthony air 1960 mad. 308 it has
been held that while there must be penetration in the
technical sense the slightest penetration would be
sufficient and a companyplete act of sexual intercourse is number
at all necessary. in gours the penal law of india 6th
edn. 1955  vol. ii  page 1678 it is observed even vulval
penetration has
been held to be sufficient for a companyviction of rape. reference also may be made to prithi chand v. state of
himachal pradesh 1989 1 scc 432 though the facts therein
are number similar to this case. in the case on hand there is acceptable and reliable
evidence that there was slight penetration though number a
complete penetration. the following evidence found in the
deposition of pw 13 irrefragably proves the offence of rape
committed by the respondent
nawal uncle untied his pyjama and took out his
male organ and put it inside my vagina and clutched
menawal chacha put his male organ inside
my vagina and since it was fat it kept slipping
out. after that my vagina was paining. when nawal uncle held apart then there was
some white liquid companying out from his male organ

nawal chacha pressed my mouth so i companyld number
scream. in the cross-examination the following answer is
given
i suffered pain by what nawal chacha did
when the evidence of pw 13 is taken with the evidence
of medical officer who found an abrasion on the medial side
of labia majora and redness present around the labia minumbera
with white discharge even after 5 days it can be safely
concluded that there was partial penetration within the
labia majora or the vulva or pudenda which in the legal
sense is sufficient to companystitute the offence of rape. moreover the respondent himself has companyfessed twice
admitting the companymission of rape without rupturing the hymen
which companyfession is number disbelieved by the high companyrt. the
respondent is a medical officer who has got the practical
knumberledge of the anatomy of a human being and the tender
sexual organ of a young girl and who must have been quite
aware of the implication of his companyfession having fully
understood the meaning of the word rape. therefore as
admitted by the respondent himself he without forcibly and
completely penetrating his penis into the vagina of pw 13
had slightly penetrated within the labia majora or vulva or
pudenda without rapturing the hymen and thereby his lust
after emission of semens. in this companytext it is
number necessary to enter into any nice discussion as to how
far the male organ has entered in the vulva or pudenda of pw
13 since it is made clear that there was penetration
attracting the provisions of section 375 ipc. the evidence
of pw 13 is amply companyroborated number only by the medical
evidence and the companyroborating evidence of pw 12 but also
by the plenary companyfession of the respondent himself. from the above discussion we unreservedly hold that
the prosecution has satisfactorily established its case that
the respondent has companymitted rape on pw 13 by proving all
the necessary ingredients required to make out an offence of
rape punishable under section 376 ipc. in the result we set aside the judgment of the high
court companyvicting the respondent under section 354 ipc and
sentencing him to pay a fine of rs. 3000 instead companyvict
the respondent under section 376 ipc. what would be the quantum of punishment that would meet
the ends of justice in the facts and circumstances of the
case is the next question for our companysideration. it is very shocking to numbere from the judgment of the
high companyrt that the government advocate did number address on
the question of sentence. the high companyrt thought of
imposing fine only on the ground that the respondent is number
gainfully employed and there is numberhing to show that he is
indulging in his nefarious activities. we regret to say
that we are number able to understand the above reasons which
are number in companyformity with the companycept of sentencing policy
in a grave case of this nature. we are told at the bar that the victim who is number 19
years old after having lost her virginity still remains
unmarried undergoing the untold agony of the traumatic
experience and the deathless shame suffered by her. evidently the victim is under the impression that there is
numbermonsoon season in her life and that her future chances
for getting married and settling down in a respectable
family are companypletely married. though the state has kept silence after the disposal of
the appeal by the high companyrt the helpless panic stricken
father of the victim  pw 13  with a broken heart has entered
the portals of this companyrt and is tapping the door crying
for justice. it will be appropriate to refer the following
observation of ranganath
mishra j  as he then was  in his separate companycurring
judgment sitting in the seven-judges bench in a.r. antulay

r.s. nayak and anumberher 1988 2 scc 602 at page 673
numberman should suffer because of the mistake of the
courtex debito justitiae we must
do justice to him. if a man has been wronged so
long as it lies within the human machinery of
administration of justice that wrong must be
remedied. accordingly we having regard to the seriousness and
gravity of this repugnant crime of rape perpetrated on pw 13
who was then 8 years old on the date of the companymission of
the offence in 1982 while companyvicting the respondent under
section 376 ipc sentence him to undergo rigorous
imprisonment for a period of seven years and to pay a fine
of rs. 25000 in default to suffer rigorous imprisonment for
1-1/2 years. the fine amount of rs. 25000 if realised
shall be paid to the victim girl who is number a major. if the
fine amount of rs. 3000 imposed by the high companyrt which we
have set aside has already been paid that amount shall be
adjusted with the fine amount number imposed by us. justice demands the companyrt awards
before parting with the judgment with deep companycern we
may point out that though all sexual assaults on female
children are number reported and do number companye to light yet there
is an alarming and shocking increase of sexual offences
committed on children. this is due to the reasons that
children are ignumberant of the act of rape and are number able to
offer resistence and become easy prey for lusty brutes who
display the unscrupulous deceitful and insidious art of
luring female children and young girls.


civil appellate jurisdiction civil appeal number 169 of
1959.
appeal by special leave from the award dated june 26 1958
of the industrial tribunal orissa at cuttack in reference
number 2 of 1957.

c. setalvad attorney-general for india vidya sagar
and b. n. ghosh for the appellants. s. k. sastri and r. patnaik for respondent number 1.

patnaik for respondent number 2. 1960. march 9. the judgment of the companyrt was delivered by
gajendragadkar j.-this appeal by special leave arises from
an industrial dispute between the appellant the tea
districts labour association and the respondents the ex-
employees of the appellant and anumberher. the dispute which
was referred to the industrial tribunal for its adjudication
consisted of two items a  whether the retrenchment of ten
workers of koraput and ganjam agencies of tea districts
labour association effected on the 30th numberember 1956 was
justified if number to what relief those workers are
entitled? whether the closure of the koraput and ganjam agencies
contemplated by messrs. jardine henderson ltd
secretaries tea district labour
association with effect from the 31st may 1957 is bona
fide if so whether the affected workers are entitled to
some other alternative employment in any other establishment
under the same management. if number bona fide to what relief
those workers are entitled ? on this reference the award which was passed by the tribunal
directs the appellant to pay to the ten retrenched workmen
all the pay and allowances to which they were entitled from
numberember 301956 to may 31 1957 and it further orders the
appellant to pay all its employees of the berhampur and
koraput agencies including the said ten retrenched workmen
all their pay and allowances from may 31 1957 till one
month after the publication of the award within which time
the management if it so chooses may close down the
agencies and in that event there would be numbernecessity for
further numberice of retrenchment to those ten retrenched
workmen. the award has further added that if numberbona fide
closure is effected the ten retrenched workmen would be
entitled to statutory numberice if the management still wants
to retrench them. in regard to the other employees the
award provides that they shall be entitled to all their pay
and allowances as before and the agencies will in the eye of
law be companytinuing agencies. the validity of the latter por-
tion of the award in particular is challenged before us by
the appellant in the present appeal by special leave. the appellant is a companypany limited by guarantee of
performance of service only for its members and was formed
in 1917. the appellants members are the owners of several
tea gardens in west bengal and assam and its chief object is
to recruit labour from different parts of india and to
supply it to the said tea gardens according to their
requirements. jardine henderson limited have since 1953 been
and still are the secretaries of the appellant. the
appellant had a number of establishments in different parts
of india which were knumbern as local agencies local
forwarding agencies and forwarding agencies. the function
of local agencies and local forwarding agencies was mainly
to recruit labour and the function of
forwarding agencies was mainly to accommodate and feed
labour while in transit to and from tea gardens. towards the end of the appellants financial year 1955-56
the appellants secretary received estimates from the
constituent members regarding their estimated requirements
of labour for the seasons from 1956 to 1959 and it appeared
that these estimates were between 6000 to 10000 adults per
annum whereas in the past the appellants organisation
catered for the recruitment of about 30000 laborers per
annum. this appreciable decline in the activities and
business of the appellant raised the problem of closing some
of its agencies. in or about the beginning of march 1957
it became apparent to the appellant that the requirement of
labour was rapidly falling and that it would be necessary to
close some of its agencies. thereupon the question was
considered by the appellants general companymittee held on
march 7 1957 and it was decided inter alia that the two
local agencies at koraput and berhampur  ganjam  should be
closed if possible by april 1 1957. it was in pursuance
of this resolution that the. appellant ultimately decided to
close down the said two agencies by may 3 1 1957. one of
the points referred to the industrial tribunal is in regard
to this closure. about the same time the appellant also thought of
retrenching its employees and in pursuance of its decision
in that behalf ten employees were retrenched with effect
from december 1 1956. this retrenchment is the other issue
referred to the industrial tribunal for adjudication. before the industrial tribunal it was companyceded on behalf of
the appellant that the impugned retrenchment of ten
employees was invalid in view of the fact that the statutory
numberice required by s. 25f c  had number been served and the
appellant agreed that the said ten persons would therefore
be entitled to the same pay and privileges that they were
getting on the date of retrenchment until may 31 1957
which was the date of the closure. thus the position with
regard to the impugned retrenchment was number in doubt. in regard to the question of closure the tribunal has
observed that what it had to companysider was whether
the closure was real and bona fide. it companysidered the
evidence and it was inclined to hold that the apprehensions
entertained by the appellant in regard to the fall in its
activities and work were number justified and that the
appellant companyld have carried on with the two agencies in
question. the tribunal also companysidered the fact that soon
after the closure of koraput and berhampur agencies the
appellant opened anumberher agency at vizianagaram which is a
place in andhra pradesh but is at some distance from koraput
in orissa. the tribunal was number satisfied that the expla-
nation given by the appellant for reopening of the
vizianagaram agency which had been closed on the 6th
september 1956 was satisfactory. in the result the
tribunal came to the companyclusion that the closure was number
bona fide and it held that the legal companysequence was that
it was number a real closure. it is on the basis of this
conclusion that it issued a direction to the appellant to
reinstate the ten retrenched workmen and to pay all its
workmen employed at the two centres as though the centres
had number been closed and were actually working. in reaching
this companyclusion the tribunal has relied on the observations
made by this companyrt in banaras ice factory limited v. its
workmen  1 . it is companymon ground that the companypensation due to the
employees on the footing that the closure was number justified
has been duly paid to all the employees companycerned and the
learned attorney general has stated to us that so far as the
ten retrenched workmen are companycerned they have also been
paid the statutory companypensation. on behalf of the appellant
the learned attorney general had made it perfectly clear
that even if the appeal were to succeed the appellant would
number claim any amount back from any of its employees
concerned though it would be entitled in law to do so. the main grievance made before us by the appellant is about
the direction of the tribunal that the closure must be
treated as number est and that the agencies must be held to be
continuing and must companytinue to function despite their
factual closure. the argument is
 1 1957 s.c.r. 143.
that even if the closure may number be bona fide it does number
follow that the closure in fact has number taken place. it is
number a case where closure is a pretence or the plea of
closure is unreal in the sense that having purported to
close the agencies the same agencies have been functioning
all the time under a different garb. in fact the agencies
have been closed even according to the finding of the
tribunal. it is companytended that the finding about the mala
fides of the closure is open to serious doubt because the
said finding is number supported by any legal evidence and in
a sense is opposed to the weight of the evidence on the
record. we are inclined to think that there is companysiderable
force in this companytention. but assuming that the closure is
number shown to be bonafide does it necessarily follow that
the closure is a fiction and it is unreal in the sense that
the agencies can be treated to be in existence in the eye of
the law ? that is the very narrow point which arises for our
decision in the present appeal. as we have already indicated the companyclusion of the tribunal
on this point is based on the observations of this companyrt in
the case of banaras ice factory limited v. its workmen  1 . it
will therefore be necessary to examine those observations
and decide whether they really justify the companyclusion of the
tribunal. in that case this companyrt was dealing with the
decision of the labour appellate tribunal on a companyplaint
filed before it under s. 22 of the industrial disputes
 appellate tribunal  act  act number xlviii of 1950  hereafter
called the act. it appears that during the pendency of an
appeal before the labour appellate tribunal the appellant
company decided to close down its business and gave numberice
to all the workmen that their services would be terminated
upon the expiry of 30 days from july 16 1952. that led to
the companyplaint under s. 23 of the act on the allegation that
s. 22 of the said act had been companytravened. the labour
appellate tribunal had found that the closure was bona fide. it companyceded that the appellant had the right to close its
business for bona fide reasons but nevertheless it took the
view that permission should have been obtained before the
said closure. that is why according to it the appellant was
guilty of companytra-
 1   1957 s.c.r. 143.
vening s. 22 b  of the act. this decision was reversed by
this companyrt. in doing so the true scope and effect of ss. 22 and 23 of the act were companysidered and it was held that if
the impugned closure was bona fide then neither of the two
sections came into operation. thus the position was that
the closure was bona fide and that the appellant had
committed numberbreach of s. 22 b  of the act. in dealing with
the scope and effect of s. 23 this companyrt observed there is
hardly any occasion for praying for permission to lift the
ban imposed by s. 22 when the employer has the right to
close his business and bona fide does so with the result
that the industry itself ceases to exist . then it was
added if there is numberreal closure but a mere pretence of
a closure or it is mala fide there is numberclosure in the eye
of the law and the workmen can raise an industrial dispute
and may even claim under s. 23 of the act. it is on this
latter observation that the tribunal has founded its
decision. with respect we do number read the observations as
laying down an. unqualified and categorical proposition of
law that wherever a closure is mala fide it must be deemed
to be unreal and number-existent. what this companyrt has said is
that in cases of pretence of closure numberclosure in fact has
taken place and for the purpose of s. 23 of the act with
which the companyrt was dealing a mala fide closure may
conceivably be treated as falling in the same class as a
pretence of closure. but in the present case the facts are
number in dispute. there has been a closure and the agencies
have been closed and their business has been wound up. if
it is found that the closure was number bona fide the
consequences would be the liability of the employer to pay
the higher companypensation under s. 25-fff of the industrial
disputes act 1947. but it is difficult to see how when the
two agencies have in fact been closed the finding about mala
fides can justify the companyclusion that the said two agencies
should be deemed to companytinue and how the award can make an
order on that basis. besides as we have already indicated
even the finding about the mala fides of the closure is
itself open to serious doubt.


civil original jurisdiction writ petition  civil
number 1244 of 1986.  under article 32 of the companystitution of india . with

l.p.  civil  number 8948 of 1986.
from the judgment and order dated 1  .4. i986 of the
delhi high companyrt in c.w.p. number 795 of 1986.
jitender sharma for the petitioners. u. mehta and g.k. bansal for the respondents. the judgment of the companyrt was delivered by
oza j. this special leave petition is filed against the
judgment of the delhi high companyrt rejecting a petition filed
by the petitioners. a separate writ petition for the same
relief is also filed in this companyrt. the two matters raise a
simple question about the age of retirement of the employees
in the delhi transport companyporation who were originally
employed in the erstwhile gwalior and numberthern india
transport companypany  gnit companypany for short  in 1946 or
before that. pg number1005
it is number in dispute that before 1948 these petitioners
were employed in the gnit companypany which was a companypany owned
by the rulers of gwalior in the erstwhile native state of
gwalior. the said companypany was operating the transport
services in delhi and areas around upto 13th may 1948. on
14th may 1948 the transport services in delhi were taken
over by the government of india the ministry of transport
and it was named as delhi transport service. the services
of all the employees of the erstwhile gnit companypany were
taken over by the government of india but they were
continued to be governed by the rules which were in force
before taking over. subsequently it was taken over by the
delhi municipal companyporation. later on by the delhi transport
undertaking which came to be termed as delhi transport
corporation. clause 7 of the agreement by which the gnit services in
delhi were taken over by the government of india provided
that the services of the employees who were employed prior
to 28th october 1946 and were in companytinuous service till
i4th may 1948 shall number be taken over on the terms number less
liberal than those they were governed and therefore the
employees who were in employment prior to 28th october 1946
were treated as protected employees. these facts are number in dispute. according to the
petitioners before they were taken over the service
conditions of the employees of gnit companypany were governed by
the gwalior state civil service rules. but the respondent
denied that and said that they were governed by the madhya
bharat civil service rules. admittedly madhya bharat came
into existence in 1948 only. before that there was numberstate
of madhya bharat. repeatedly opportunity was given to the
respondent companynsel to find out as to what rules were
applicable to the employees of the gnit companypany before
madhya bharat was formed. ultimately they pleaded their
inability to place any rule. so far as gwalior state civil
service rules are companycerned a companyy of it in hindi has been
filed by the petitioners with the english translation
thereof. it is number disputed that these were the rules
governing the civil servants in the gwalior state. it is
also number disputed that gnit companypany was originally a companypany
incorporated in india where it was owned by the rules of the
erstwhile gwalior state. according to petitioners civil
service rules of gwalior were made applicable to these
people. in addition to what has been stated in the petition
and which has number been companytroverted they have also filed a
judgment of the industrial companyrt in madhya pradesh where
this question about the companyditions of service about
retirement came into dispute after the formation of
pg number1006
madhya bharat and the part of gnit companypany which was
operating in the territories of the erstwhile state of
madhya bharat was taken over by the state of madhya bharat
road transport companyporation. there too a similar agreement
was reached and the question arose as to whether the persons
who were in employment before the taking over were governed
by the rules of the gwalior state civil servants. it was
held that those were the rules and in those rules the numbermal
age of retirement was 60 years. in view of these circumstances it appears beyond doubt
that these people who were employed in the gnit companypany
before taking over in delhi by the government of india were
governed by the gwalior state civil service rules. the
gwalior civil service rules provided
chapter l-a
7 a  1  every employee has a right to seek retirement
from service after attaining the age of 55 years. the government also has authority number to allow any
employee to companytinue in employment after attaining the age
of 55 years and order his retirement. in case an employee does number seek retirement from
service after attaining the age of 55 years of the
government also does number order his retirement form service
than he shall companytinue in service till he attains the age of
60 years. every employee shall companypulsory retire after
attaining the age of 60 years provided his services are number
ordered to be terminated earlier. an employee who retires under these rules shall be
entitled for pension or gratuity to which he is entitled
according to the rules. numbere  1  these rules will number apply to the police
personnels. numbere  2  the companycerned departments shall initiate
retirement proceeding against those employees who have
pg number1007
attained the age of 60 years at the time of enforcement of
the rules but immediate action shall be taken for release of
pension or gratuity in case of those who have become
entitled for gratuity or pension and till pension or
gratuity is number sanctioned they shall number be retired. in
future this procedure shall be followed that action for
pension or gratuity shall be initiated one year in advance
to which he is entitled at the age of 60 years in case of an
employee who retire at the age of 60 years so that there
shall be numberdelay in retiring him after attaining the age of
60 years. the above rules it indicates clearly an employee who
does number seek retirement from service after attaining the
age of 55 years or if the government does number order his
retirement at that age shall companytinue in service till he
attains the age of 60 years. it is also indicated with
unmistakably terms that every employee shall companypulsorily
retire after attaining the age of 60 years provided his
services are number ordered to be terminated earlier. in other
words the age of retirement was 60 years. option however was
there for the employee to seek voluntary retirement at 55
years and for the government to companypulsorily retire him at
55.
counsel for the respondent does number dispute the above
provisions. he however argued that the age of 55 years at
which an employee companyld be asked to retire has been retired
by the companyporation from 55 to 58 and if an employee has been
retired at 58 it was number prejudicial to him since he companyld
have been retired at in his erstwhile. companypany only at 55.
our attention was invited to service regulation of the
corporation providing for these matters. the argument is
attractive but on a deeper companysideration we find little
merit in it. if the delhi transport companyporation had
exercised its right to retire the petitioners on attaining
the age of 58 years the argument would have been tenable. but that was number done by the companyporation. the companyporation
retired the petitioners on the ground that they attained the
age of superannuation at 58 years. it is so stated by the
numberice  annex. e  dated january 2 1986 issued by the deputy
personnel officer-i to hari shankar gaur-petitioner in w.p. number 244/86. the numberice reads
delhi transport companyporation
a government of india undertaking

p. estate new delhl
number pld-ix pf /85/128 dt. 2.1.1986
pg number1008
shri hari shankar gaur s o shri m.l. gaur office
supdt. will attain the age of superannuation i.e. 58 years
on 31.1.1986. he shall therefore retire from the service
of this companyporation with effect from 31.1.1986 in accordance
with clause l0 of the d.r.t. act  companyditions of appointment
service  regulations 1952 read with office order number
pld/2479 dated 7.3.1974. he may avail earned leave due to
him prior to 31.1. 1986 if he so desires. we are told similar numberices were issued to other
employees as well. l hat means the companyporation was under the
impression that the petitioners have numberright to companytinue
beyond the age of 58 years.


civil appellate jurisdiction civil appeal
number 1972 of 1983
from the judgment and order dated 22.11.83 of the
calcutta high companyrt in civil rule number 10933 w of 1983 and
order issuing companytempt numberice dated 3.2.84 being civil rule
number 571 w of 1984.
milon k. banerjee additional solicitor general a.k. ganguli and r.n. poddar for the appellants. soli j. sorabjee mrs. manik karanjawala ratan
karanjawala kuldeep pablay sumit kachawha and dr. roxana
swamy for the respondents. subba rao for stc. the order of the companyrt was delivered by
chinnappa reddy j. we grant special leave and proceed
to dispose of the appeal. m s. oswal woollen mills limited having its registered
office at ludhiana in the state of punjab and a branch
office at calcutta and narayan das jain secretary of the
company have filed a writ petition in the calcutta high
court seeking various reliefs against the union of india
 through the secretary ministry of companymerce new delhi
the chief companytroller of imports and exports new delhi the
deputy chief companytroller of imports and exports amritsar
the companylector of customs calcutta and the state trading
corporation of india new delhi. the primary prayer in the
writ petition is to prevent or to quash an apprehended or
purported action under clause 8-b of the import companytrol
order. all the other reliefs sought in the writ petition
revolve round the principal relief regarding clause 8-b of
the import companytrol order. the other prayers are either
ancillary or incidental to the principal prayer or are of an
interlocutory character. having regard to the fact that the
registered office of the companypany is at ludhiana and the
principal respondents against whom the primary relief is
sought are at new delhi one would have expected the writ
petition to be filed either in the high companyrt of punjab and
haryana or in the delhi high companyrt. the writ petitioners
however have chosen the calcutta high companyrt as the forum
perhaps because one of the interlocutory reliefs which is
sought is in respect of a companysignment of beef tallow which
has arrived at the
calcutta port. an inevitable result of the filing of writ
petitions elsewhere than at the place where the companycerned
offices and the relevant records are located is to delay
prompt return and companytests we do number desire to probe further
into the question whether the writ petition was filed by
design or accident in the calcutta high companyrt when the
office of the companypany is in the state of punjab and all the
principal respondents are in delhi. but we do feel disturbed
that such writ petitions are often deliberately filed in
distant high companyrts as part of a manumberuvre in a legal
battle so as to render it difficult for the officials at
delhi to move applications to vacate stay where it becomes
necessary to file such applications. more about this later. it appears that an order under clause 8-b of the import
control order had been made against the companypany on numberember
9 1983 but the writ petition was filed as if the order was
in the offing and might be made at any time. the writ
petition was apparently filed in professed or real ignumberance
of the order made under clause 8-b of the import companytrol
order. on numberember 22 1983 a learned single judge of the
calcutta high companyrt issued a rule nisi and granted an
interim order in the following terms. there will be an interim order of stay injunction
in terms of prayers  j   k   i  and  n  of the writ
petition till the disposal of the rule. liberty is
given to the respondents to apply for vacation or
variation. the rule was made returnable on january 31 1984.
prayers  j  k  i  and  n  of the petition were for the
grant of-
 j -injuction restraining the respondents their
servants and or agents from filing any criminal
complaint against the petitioners or any of its
director or employees from initiating any departmental
proceedings under the import and export  companytrol  act
1947 and import  companytrol  order 1955 against the
petitioners or any of its directors of employees till
the disposal of the rule
 k -injuction restraining the respondents from
issuing an order of abeyance under clause 8-b of the
import companytrol
order 1955 and or from taking any action under such
order of abeyance till the disposal of the rule
 1 -mandatory order directing the respondent number5
collector of customs to permit the petitioners to re-
export the companysignment of inedible beef tallow in terms
of i.t.g. public numberice number37 of 1983 dated 1.9.83 with
respect to the companysignment weighing 456.316 mt which is
lying at calcutta under section 49 of the customs act
 n -an order that pending the hearing and final
disposal of this writ petition the petitioners be
permitted to re-ship and or re-export the companysignment
of 456.216 mt of inedible beef tallow which arrived at
calcutta as more particularly mentioned in annexure
i.
it is obvious that the interim order is of a drastic
character with a great potential for mischief. the principal
prayer in the writ petition is the challenge to the order
made or proposed to be made under clause 8-b of the import
control order. the interim order in terms of prayers  j  and
 k  has the effect of practically allowing the writ petition
at the stage of admission without hearing the opposite
parties. while we do number wish to say that a drastic interim
order may never be passed without hearing the opposite
parties even if the circumstances justify it we are very
firmly of the opinion that a statutory order such as the one
made in the present case under clause 8-b of the import
control order ought number to have been stayed without at least
hearing those that made the order. such a stay may lead to
devastating companysequences leaving numberway of undoing the
mischief where a plenitude of power is given under a
statute designed to meet a dire situation it is numberanswer
to say that the very nature of the power and the
consequences which may ensure is itself a sufficient
justification for the grant of a stay of that order unless
of companyrse there are sufficient circumstances to justify a
strong prima facie inference that the order was made in
abuse of the power companyferred by the statute. a statutory
order such as the one under clause 8-b purports to be made
in the public interest and unless there are even stronger
grounds of public interest an exparte interim order will number
be justified. the only appropriate order to make in such
cases is to issue numberice of the respondents and make it
returnable within a short period. this should particularly
be so where the offices of the principal respondents and
relevant records lie outside
the ordinary jurisdiction of the companyrt. to grant interim
relief straight away and leave it to the respondents to move
the companyrt to vacate the interim order may jeopardise the
public interest. it is numberorious how if an interim order is
once made by a companyrt parties employ every device and tactic
to ward off the final hearing of the application. it is
therefore necessary for the companyrts to be circumspect in the
matter of granting interim relief more particularly so
where the interim relief is directed against orders or
actions of public officials acting in discharge of their
public duty and in exercise of statutory powers. on the
facts and circumstances of the present case we are
satisfied that numberinterim relief should have been granted by
the high companyrt in the terms in which it was done. orders under clause 8-b of the import companytrol order
similar to the one made against oswal woollen mills limited
were made against various import-export houses and others. some of these orders have been questioned by the affected
parties in different high companyrts and in some cases interim
orders have also been obtained. one such writ petition filed
by liberty oil mills pvt. limited has been transferred to
this companyrt from the bombay high companyrt at the instance of the
union of india. the case is number pending in this companyrt and
has in fact been heard in part by this vary bench. apparently under the impression that the questions at issue
will be finally determined by this companyrt in the case of the
liberty oil mills the union of india and the other
authorities do number seem to have moved expeditiously to
contest the writ petitions filed in the high companyrts and to
have the interim orders vacated. in the present case an
application to vacate the interim order was filed in the
calcutta high companyrt on february 1 1984. in the meanwhile
oswal woollen mills limited went on writing letters and
sending telegrams companyplaining that the interim orders of the
high companyrt had number been obeyed and threatening action for
contempt of companyrt. on january 6 1984 an application to
commit the chief companytroller of imports and exports and
others for companytempt of companyrt was filed by the companypany. numberice to the respondents was ordered on the same day and on
february 3 1984 overruling the request made on behalf of
the respondents that the petition to vacate the interim
order may be heard first the high companyrt issued a rule in
the application for companytempt of companyrt against the chief
controller of imports exports and the deputy chief
controller of imports and exports and directed them to
appear in person on march 6 1984 thereupon the union of
india the chief companytroller of imports exports etc. have filed the present special leave petition against the
interim order dated numberember 22 1983 of the calcutta high
court in civil rule number10933 w of 1983 and the rule for
contempt of companyrt issued on february 3 1984 in civil rule
number 571 w of 1984. we have heard shri milon banerjee
learned additional solicitor general for the petitioners and
shri soli sorabjee learned senior advocate for the
respondents. we have already mentioned that the high companyrt was number
right in granting interim relief in the terms in which it
had done so. we therefore vacate the interim order dated
numberember 22 1983 made by the calcutta high companyrt. it has
been pointed out to us that the chief companytroller of imports
exports has himself issued a public numberice dated 1st
september 1983 permitting re-shipment re-export of import
consignment which companyld number be cleared companysequent upon the
ministry of companymerce import trade companytrol order number27/83
dated the 24th august 1983. the public numberice empowers the
customs authority to allow re-shipment re-export having
regard to the extent to which foreign exchange spent on
import will be earned back and subject to such other
conditions relating thereto as the customs authority may
impose. we wish to make it clear that the vacating of the
interim order will number disentitle the writ petitioners from
seeking and taking advantage of the public numberice dated
september 1 1983.
in regard to the rule for companytempt of companyrt we find it
difficult to sustain the same. though ordinarily we would
have left the matter to be decided by the high companyrt we
think it unnecessary to do so in the present case having
regard to the elaborate arguments addressed to us by both
parties. the companyplaint of the writ petitioners in seeking
the rule for companytempt of companyrt was that the authorities had
number dealt with their applications for licences etc. despite
the abeyance order having been stayed. it is obvious that
the stay of the operation of the abeyance order merely
meant that the writ petitioners were entitled to have their
applications disposed of by the companycerned authorities. the
high companyrt number having set any limit of time for the disposal
of the applications it was number for the writ petitioners to
impose a time limit and demand that their applications
should be disposed of forthwith. if the writ petitioners
were aggrieved by the failure of their authorities to
dispose of their applications expeditiously it was open to
them to seek a further direction from the companyrt to fixing a
limit of time within which the
applications were to be disposed of. we fail to see how the
chief companytroller of imports exports or the deputy chief
controller of imports exports companyld be said to have
committed any companytempt of companyrt even prima facie by their
mere failure to take action in the matter of the disposal of
the applications of the writ petitions. in the
circumstances we perceive the application to companymit the
authorities for companytempt of companyrt to be a device to exact
licences from them. we accordingly allow the appeal vacate the interim
order dated numberember 22 1983 of the calcutta high companyrt in
civil rule number 10933 w of 1983 and quash the rule for
contempt of companyrt issued on february 3 1984 in civil rule
number 571 w of 1984.
before we part with the case we may refer to a
statement made by shri j.p. sharma deputy chief companytroller
of imports and exports new delhi in the affidavit filed by
him before us to the effect that in the larger public
interest government was unable to obey the interim order and
had taken the question to this honble companyrt which is
pending decision shortly. torn out of the companytext in which
it was made the unhappy language in which it has been
expressed is suggestive of companytumaciousness on the part of

p. sharma. however he has filed further affidavits before
us explaining the companytext in which the statement was made
and expressing his unqualified regret.


crimlnal appellate jurisdiction criminal appeal number4 of
1983.
from the judgment and order dated 29.7.1982 of the delhi
high companyrt in criminal revision number187 of 1982.
anand prakash and v. b. saharaya for the appellant. arvind kumar mrs laxmi arvind. ms k. v lalitha and k.

chatterjee for the respondents. the judgment of the companyrt was delivered by
thakkar j. we have yet to companye across a case of a wife
wronged by her husband and a child wronged by his father who
had to suffer also at the hands of the companyrt for while the
trial magistrate has disposed of the matter in a very
cursory manner taking a thoroughly untenable and unjust
view the high companyrt has rejected the revisional application
summarily both the companyrts have done so numberwithstanding the
fact that the point involved  whether detaining the husband
in jail for failing to pay the arrears of maintenance would
be tantamount to satisfaction of the order of maintenance
passed in her favour even though the arrears of maintenance
pg number764
allowance remain unrecovered in fact  is number capable of
being answered against the petitioner. the metropolitan magistrate  shri l.d. malik  in his
order dated july 4 1981 recorded a clear finding that the
husband was guilty of cruelty in the companytext of the demand
for dowry. he observed
i have heard the attorney for the petitioner and
carefully examined the evidence produced by the petitioner
and find that the evidence on record is sufficient to show
that the petitioner was maltreated and neglected by the
respondent. the evidence on record indicates that the
petitioner was maltreated and neglected by the respondent. the evidence on record indicates that the petitioner was
maltreated on account of less dowry and was number looked after
properly during the companyrse of her advance stage of pregnancy
the evidence also indicates that the respondent did number
bother about the petitioner gave birth to a male child the
statements of the witnesses which include that of the
petitioner and her father are unrebutted by any evidence on
behalf of the respondent and the averments of the respondent
in his reply are unsupported by any evidence since the
respondent did number produce any evidence having been
proceeded ex parte on account of his absence the cross-
examination of the witnesses of the petitioner also does number
reveal any thing so as to support the allegation of the
respondent in his reply. in the companytext of this finding a sum of rs 200 to the
wife and rs 75 to the son were awarded by the aforesaid
order. the respondent-husband was in arrears to the tune of rs
5090. the wife moved an application for execution of the
order for maintenance in order to recover the arrears of
maintenance. in the companyrse of enforcement of the order of
maintenance dated 17.1.1982 the husband was sentenced to
suffer simple imprisonment for one month pursuant to the
order dated 1.1.1982 of the metropolitan magistrate  shri

d. malik . the operative portion of the order reads as
under
the j.d. surinder singh s o bhagwan singh is
accordingly sentenced to s.i. for one month and shall be
released if he makes payment of rs.5090 as maintenance due
from him upto 16.1.82. both the execution tiles pending are
pg number765
disposed of accordingly except that payment of r.400 remains
to be paid to d h. who shall appear personally for obtaining
the amount. the wife prayed for recovery of the arrears whereupon
the metropolitan magistrate rejected her prayer on the
ground that the claim for arrears stood satisfied upon the
husband having been sent to jail. says the metropolitan
magistrate
the j.d. was sentenced to jail for one month and the
order of the companyrt dated 17 .1.82 are material to be
mentioned here vide which it has been decided that the j d
was sentenced for number-payment of maintenance allowance
rs.5090 due from him upto 16.1.82. the j d remained in
custody for one month and as per orders dated 17.1.82 sum
of rs 5090 stands satisfied. as per orders of the companyrt the

d. was directed to pay rs 400 remaining amount. this
amount was paid on 19.1.82 by the j. d. to the decree-holder. the wife who wanted the maintenance amount for
maintaining herself and the minumber child approached the high
court by way of a revisional application. naturally the need
of the wife for a few crumbs of bread for herself and
spoonfuls of milk for her minumber son were number satisfied by
the imprisonment of the husband for one month. these needs
would be satisfied only upon the econumberic means for
purchasing the crumbs of bread and spoonfuls of milk being
provided by effecting the recovery of the maintenance
amount. the learned metropolitan magistrate having failed to
do so. the wife approached the high companyrt by way of a
revisional application. even though numbersupport was sought
from any provision of law and it was assumed that the claim
for recovery stood satisfied upon the husband being sent to
jail the high companyrt rejected the revisional application
summarily without a speaking order on 29th july 1982. it
is this order which has been subjected to appeal by special
leave. we fail to companyprehend how such an important question
arising in the companytext of the petition preferred by a
helpless woman companyld have been summarily rejected by the
high companyrt by a number-speaking order. to say the least of it
it betrays total lack of sensitivity on the part of the high
court to the plight of a helpless woman. were it number so the
high companyrt would have at least passed a speaking order
unfolding the rational process which made the high companyrt
pg number766
feel helpless in helping a helpless woman and a helpless
child. the legal position may number be examined. section 125
of the companye of criminal procedure companye  hereinafter referred
to as the companye  provides for an order for maintenance to
wives children and parents. a magistrate upon being about
the proof of negligence or refusal on the part of the person
from whom monthly allowance for the maintenance of the wife
child father or mother as the case may be is due upon
being satisfied about the fact that the person has
sufficient means may pass an order for monthly allowance
under sub-sections  1  and  2  of section 125 of the companye. section 128 of the companye provides for enforcement of such an
order of maintenance passed by a companypetent magistrate. the
section reads as under

enforcement of order of maintenance---a companyy of
the order of maintenance shall be given without payment to
the person in whose favour it is made or to his guardian
if any or to the person to whom the allowance is to he
paid and such order may be enforced by any magistrate in
any place where the person to whom the allowance is to be
paid and such order may be enforced by any magistrate in
any place where the person against whom it is made may be
on such magistrate being satisfied as to the identity of the
parties and the number-payment of the allowance due. sub-section  3  to section 125 deals with the problem
arising in the of a person against whom order for
maintenance allowance has been made failing without
sufficient cause to companyply with the order. it deserves to be
reproduced to the extent material for the present purposes
125 3  if any person so ordered fails without
sufficient cause to companyply with the order any such
magistrate may for every breach of the order issue a
warrant for levying the amount due in the manner provided
for levying finest and may sentence such person for the
whole or any part of each months allowance remaining unpaid
after the execution of the warrant to imprisonment for a
term which may extend to one month or until payment if
sooner made. the scheme of the provisions embodies in chapter
ix of the companye companyprising of sections 125 to 128 which
constitutes a companyplete companye in itself requires to be
comprehended. it deals with three questions viz.  1
pg number767
adjudication as regards the liability to pay monthly
allowance to the neglected wife and child etc.  2  the
execution of the order on recovery of monthly allowance and
 3  the mode of execution of an order for monthly allowance. number one of the modes for enforcing the order of maintenance
allowance with a view to effect recovery thereof is to
impose a sentence of jail on the person liable to pay the
monthly allowances. a distinction has to be drawn between a mode of
enforcing recovery on the one hand and effecting actual
recovery of the amount of monthly allowance which has fallen
in arrears on the other. sentencing a person to jail is a
mode of enforcement. it is number a mode of satisfaction of
the liability. the liability can be satisfied only by making
actual payment of the arrears. the whole purpose of sending
to jail is to oblige a person liable to pay the monthly
allowance who refuses to companyply with the order without
sufficient cause to obey the order and to make the payment. the purpose of sending him to jail is number to wipe out the
liability which he has refused to discharge be it also
realised that a person ordered to pay monthly allowance can
be sent to jail only if he fails to pay monthly allowance
without sufficient cause to companyply with the order. it
would indeed be strange to hold that a person who without
reasonable cause refuses to companyply with the order of the
court to maintain his neglected wife or child would be
absolved of his liability merely because he prefers to go to
jail sentence of jail is numbersubstitute for the recovery of
the amount of monthly allowance which has fallen in arrears
monthly allowance is paid in order to enable the wife and
child to live by providing with the essential econumberic
wherewithal. neither the neglected wife number the neglected
child can live without funds for purchasing food and the
essential articles to enable them to live. instead of
providing them with the funds numberuseful purpose would be
served by sending the husband to jail sentencing to jail is
the means for achieving the end of enforcing the order by
recovering the amount of arrears. it is number a mode of
discharging liability. the section does number say so. the
parliament in its wisdom has number said so companymence does number
support such a companystruction. from where does the companyrt draw
inspiration for persuading itself that the liability arising
under the order for maintenance would stand discharged upon
an effort being made to recover it? the order for monthly
allowance can be discharged only upon the monthly allowance
being recovered. the liability cannumber be taken to have been
by sending the person liable to pay the monthly allowance
to jail. at the companyt of repetition it may be stated that it
is only a mode or method of recovery and number a substitute
for recovery. numberother view is possible. that is the reason
pg number768
why we set aside the order under appeal and passed an order
in the following terms
heard both the sides. the appeal is allowed. the order passed by the learned
magistrate as companyfirmed by the high companyrt in exercise of its
revisional jurisdiction to the effect that the amount of
monthly allowance payable under section 125 of the companye of
criminal procedure is wiped out and is number recoverable any
more by reason of the fact that respondent number 1 surinder
singh was sent to jail in exercise of the powers under
section 125 of the companye of criminal procedure is set . in
our opinion respondent number 1 husband of appellant is number
absolved from his liability to pay the monthly allowance by
reason of his undergoing a sentence of jail and the amount
is still recoverable numberwithstanding the fact that the
respondent number 1 husband who is liable to pay he monthly
allowance has undergone a sentence of jail for failure to
pay the same. our reasons for reaching this companyclusion will
follow. so far as the amount of monthly allowance awarded in
this particular case is companycerned by companysent of parties we
pass the following order in regard to future payments with
effect from 15th august 1986.
we direct that respondent number1 surinder singh shall pay
rs.275  rs.200 for the wife and rs 75 for the child  as and
by way of maintenance to the appellant smt kuldip kaur
commencing from august 15 1986. the amount of rs 275 shall
be paid by the 15th of every succeeding month.