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EMPLOYMENT OF CHILDREN IN CIRCUS BANNED BY SUPREME COURT DIRECTION 2011 SC


Justice Dalveer Bhandari, and Justice A.K. Patnaik of The Supreme Court of India in the case of Bachpan Bachao Andolan vs Union Of India & Ors. The court made its interim observations and several directions on 18 April, 2011

There are no labour or any welfare laws, which protect the rights of these children. Children are frequently physically, emotionally and sexually abused in these places. The most appalling aspect is that there is no direct legislation, which is vested with powers to deal with the problems of the children who are trafficked into these circuses. The Police, Labour Department or any other State Agency is not prepared to deal with the issue of trafficking of girls from Nepal holding them in bondage and unlawful confinement. There is perpetual sexual harassment, violation of the Juvenile Justice Act and all International treaties and Conventions related to Human Rights and Child Rights where India is a signatory.
The employment of the children in circus involves many legal complications and in that respect major complications are as under:
1. Deprivation of the children from getting educated thereby violates their fundamental right for education enshrined under Article 21A of the Constitution.
2. Deprivation of the child from playing and expression of thoughts and feelings, thereby violating the fundamental right to freedom of expression.
3. Competency to enter into contract for working in circus.
4. Violation of statutory provisions of law like Employment of Children's Act, 1938, The Children (Placing of Labour) Act, 1933, The Child Labour (Prohibition and Regulation) Act, 1986, Minimum Wages Act, 1976, The Prevention of Immoral Traffic Act, Equal Remuneration Act, 1976 and Rules made thereunder and the Bonded Labour System (abolition) Act, 1976 read with rules made their under, the Factories Act, 1948, Motor Transport Workers Act, 1961 etc.
5. Existing labour laws and legitimacy of contracts of employment for children.
6. The legitimacy of contracts of employment for children and working conditions.

The court observed the following statistics as an alarming:-
i) There are an estimated two million children, aged between 5 and 15, forced into CSE around the world;
ii) Girls between the ages of 10 and 14 years are most vulnerable;
iii) 15% of commercial sexual workers in India are believed to be below 15 years old and 25% are estimated to be between the ages of 15 and 18;
iv) 500,000 children worldwide are forced into this profession every year.

35. It is submitted that the report dealt with cross border trafficking in the following way:-
“Research on cross-border trafficking has indicated that 5000-7000 young Nepali girls were trafficked into India annually. This research also highlighted the fact that in the last decade, the average age of the trafficked girl has steadily fallen from 14 to 16 years to 10 to 14 years. These findings are supported by studies conducted by Human Rights Watch - Asia in 1995, which stated that the average age of Nepali girls trafficked into India dropped from 14 to 16 years in the 1980s to 10 to 14 years in 1991 despite the introduction of laws designed to combat trafficking of minors. Ghosh's study estimated that Nepali children constitute 20 per cent (40,000) of the approximately 2,00,000 Nepalese commercial sexual workers in India. Young girls are trafficked from economically depressed neighbourhoods in Nepal and Bangladesh to the major prostitution centres in Delhi, Mumbai and Calcutta. Social workers have reported encountering children as young as nine in Kamathipura, a red light area in Mumbai.”

36. The promise of marriage, employment is often used for luring young children into sexual trade. The report also talks about the trafficking of children in urban brothels and the regional variations. The report describes how trafficking is undertaken.

37. Trafficking in women and children has become an increasingly lucrative business especially since the risk of being prosecuted is vey low. Women and children do not usually come to the brothels on their own will, but are brought through highly systematic, organized and illegal trafficking networks run by experienced individuals who buy, transport and sell children into prostitution. Traffickers tend to work in groups and children being trafficked often change hands to ensure that neither the trafficker nor the child gets caught during transit. Different groups of traffickers include gang members, police, pimps and even politicians, all working as a nexus. Trafficking networks are well organized and have linkages both within the country and in the neighbouring countries. Most traffickers are men. The role of women in this business is restricted to recruitment at the brothels.

38. The typical profile of a trafficker is a man in his twenties or thirties or a woman in her thirties or forties who have travelled the route to the city several times and know the hotels to stay in and the brokers to contact. They frequently work in groups of two or more. Male and female traffickers are sometimes referred to as dalals and dalalis (commission agents) respectively and are either employed by a brothel owner directly or operate independently. Often collusion of family members forms an integral part of trafficking with uncles, cousins and stepfathers acting as trafficking agents. In March, 1994 Human Rights Watch Asia interviewed several trafficked victims of whom six were trafficked into India from Nepal with the help of close family friends or relatives. In each case, the victim complained of deception.

COURT GAVE FOLLOWING DIRECTIONS
We plan to deal with the problem of children's exploitation systematically. In this order we are limiting our directions regarding children working in the Indian Circuses. Consequently, we direct:
(i) In order to implement the fundamental right of the children under Article 21A it is imperative that the Central Government must issue suitable notifications prohibiting the employment of children in circuses within two months from today.
(ii) The respondents are directed to conduct simultaneous raids in all the circuses to liberate the children and check the violation of fundamental rights of the children. The rescued children be kept in the Care and Protective Homes till they attain the age of 18 years.
(iii) The respondents are also directed to talk to the parents of the children and in case they are willing to take their children back to their homes, they may be directed to do so after proper verification.
(iv) The respondents are directed to frame proper scheme of rehabilitation of rescued children from circuses.
(v) We direct the Secretary of Ministry of Human Resources Development, Department of Women and Child Development to file a comprehensive affidavit of compliance within ten weeks.



COMPROMISE IN CRIMINAL PROCEEDINGS

The observations made by Supreme Court, in G.V. Rao v. L.H.V. Prasad & Ors. [(2000) 3 SCC 693] are very apt for determining the approach required to be kept in view in matrimonial dispute by the courts, it was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different courts. There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code. In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.

Inspector of Police, CBI Vs. B. Raja Gopal and Ors., (2002) 9 SCC 533 where it was held that merely because a compromise has been reached between the bank officials and the accused and the accused paid the disputed amount found due to the bank, the High Court was not justified in quashing the trial.

Apex Court in the case of Nikhil Merchant v. Central Bureau of Investigation and Another and reported in JT 2008 (9) SC 192 the first information report is liable to be quashed; since even six months prior to the registration of the case the entire loan transaction has been cleared and no loss whatsoever has been caused to the Bank and no disciplinary or other actions have been taken against A-1 and A-2-the Bank officials, who have sanctioned the loans and they have not been suspended from service. Inspite of paying the entire loan transaction with interest and without availing any concession and only because of the mala fide registration of the case the company and its Directors and employees are suffering huge and irreparable loss since the entire banking operations of the company have come to a stand still; the facts of the case makes it abundantly clear that the very registration of the case is a pure abuse of process of law.

Apex Court rendered in the case of J.K.International v. State, Govt. of NCT of Delhi reported in (2001) 3 SCC 462 before quashing the first information report the first informant or the defacto complainant as the case may be had to be put on notice and given an opportunity of hearing.

In Manoj Sharma Vs. State & Others, 2008(16) SCC 1 also the criminal proceedings were quashed because the parties had arrived at a settlement and the complainant had agreed to withdraw the allegations against each other including the FIR.


Supreme Court in Rumi Dhar(Smt) Vs. State of West Bengal & Another, (2009) 6 SCC 364. Bank with a view to protect its financial interest and to recover the cheated money has opted to settle the civil dispute with the petitioners, it cannot be taken as a circumstance to quash the FIR against the petitioner, particularly when the parties have not compromise in relation to the criminal charges. The Supreme Court, inter alia, observed thus: "13. The appellant is said to have taken part in conspiracy in defrauding the bank. Serious charges of falsification of accounts and forgery of records have also been alleged. Although no charge against the appellant under the Prevention of Corruption Act has been framed, indisputably, the officers of the bank are facing the said charges.
14. It is now a well settled principle of law that in a given case, a civil proceeding and a criminal proceeding can proceed simultaneously. Bank is entitled to recover the amount of loan given to the debtor. If in connection with obtaining the said loan, criminal offences have been committed by the persons accused thereof including the officers of the bank, criminal proceedings would also indisputably be maintainable.
15. When a settlement is arrived at by and between the creditor and the debtor, the offence committed as such does not come to an end. The judgment of a tribunal in a civil proceeding and that too when it is rendered on the basis of settlement entered into by and between the parties, would not be of much relevance in a criminal proceeding having regard to the provisions contained in Section 43 of the Indian Evidence Act, 1872. The judgment in the civil proceedings will be admissible in evidence only for a limited purpose.
16. It is not a case where the parties have entered into a compromise in relation to the criminal charges. In fact, the offence alleged against the accused being an offence against the society and the allegations contained in the first information report having been investigated by the Central Bureau of Investigation, the bank could not have entered into any settlement at all. CBI has not filed any application for withdrawal of the case. Not only a charge sheet has been filed, charges have also been framed.




In Pepsi Foods Ltd. and Anr.VS. Special Judicial Magistrate and Ors., (1998) 5 SCC 549, the Hon'ble Supreme Court observed that power of the Court under Section 482 of the Code had no limit and were not inflexible though exercise of such powers would depend upon the facts and circumstances of each case, the sole purpose is being to prevent the abuse purpose of the Court or otherwise to secure the ends of justice.


In Jagdish Channana and Ors v. State of Haryana, AIR 2008 SC 1968, an FIR was registered in Sonepat under Sections 419, 420, 465, 468, 469, 471, 472 and 474 read with Section 34 of IPC. During pendency of these proceedings the parties entered into a compromise and one of the terms of the compromise was that the proceedings pending in the court would be withdrawn, compromised or quashed, as the case may be. The Hon'ble Supreme Court noticing that in the light of the compromise, it was unlikely that the prosecution will succeed in the matter and also noticing that the dispute was purely personal one and no public policy was involved in the transactions that had been entered into between the parties, held that continuing with the proceedings would be a futile exercise and quashed the FIR and all consequent proceedings.

In Madan Mohan Abbot Vs. State of Punjab, (2008) 4 SCC 582; an FIR was registered under Sections 379/406/409/418/34 of IPC in Police Station Kotwali of Amritsar. The parties entered into compromise under which the complainant party undertook to cooperate with the accused to get the FIR cancelled / quashed. On the basis of compromise, an application was filed in the High Court for quashing the proceedings. The High Court having dismissed the application, the matter came up before the Hon'ble Supreme Court. Noticing that the dispute was purely personal one between two contesting parties and had arisen on extensive business dealings between them and there was absolutely no public policy involved, in the nature of the allegations made against the accused, the Hon'ble Supreme Court was of the opinion that no purpose would be served in continuing with the proceedings. The Hon'ble Court observed that it is advisable that in disputes where the question involved is purely personal in nature, the court should ordinarily accept the terms of compromise even in criminal proceedings as keeping the matter alive, with no possibility of a result in favour of the prosecution is a luxury, which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation. The Hon'ble Court held that this is public opinion and common sense approach to the matter based on ground of realities and bereft of the technicalities of the law.


In Central Bureau of Investigation vs. A Ravishankar Prasad & Ors, (2009) 6 SCC 351, CBI challenged an order passed by the High Court of Madras quashing criminal proceedings initiated by it under Section 120B with Section 420 of IPC and Section 13(2) read with Section 13(1) (d) of Prevention of Corruption Act, 1988. The case involved respondents entering onto a conspiracy with Chairman and Managing Director and other officials of Indian Bank with the object to cheat bank in the matter of obtaining credit facilities. The respondents cleared entire dues, by paying an amount of Rs. 1.57 crore to the bank and filed an application under section 482 of Cr. P.C. pursuant to which proceedings against the respondents were quashed by the High Court. The Hon'ble Supreme Court noted that charge sheet incorporated complicity of some public servants and private servants to defraud the bank. The Hon'ble Court also noted that the respondents and other bank officials shared charge sheet under Section 120B read with Section 420 of IPC and was of the view that quashing charges against them would also have serious repercussions on the pending cases against other bank officials. The appeal filed by CBI was, therefore, allowed and the order passed by the High Court was set aside. During the course of judgment, the Hon'ble Court was of the view that exercise of inherent power would entirely depend on the facts and circumstances of each case, the object of incorporating such power in the Code being abuse of process of the court or to secure ends of justice.


Hon'ble Supreme Court in State Vs. Gurmeet Singh, AIR 1997 SC 1588, after noticing that the crime against women in general and rape in particular is on the increase, reminded that a rapist not only violates the victim's privacy and personal integrity but inevitably causes serious psychological as well as physical harm in the process. A murderer destroys the physical body of his victim, whereas a rapist degrades the very soul of the helpless female thereby destroying whole of her personality.



Court in the case of Damodar S. Prabhu vs. Sayed Babalal H.reported in (2010) 5 SCC 663. In paragraph 4, this Court held that the dishonour of a cheque can be best described as a regulatory offence which has been created to serve the public interest in ensuring the reliability of these instruments and the Court has further held that the impact of the offence is confined to private parties involvement in commercial transactions. The Court also noted the situation that large number of cases involving dishonour of cheques are choking the criminal justice system and putting an unprecedented strain on the judicial functioning. In paragraph 7 of the judgment this Court noted the submissions of the learned Attorney General to the extent that the Court should frame certain guidelines so as to motivate the litigants from seeking compounding of the offence at an early stage of litigation and not at an unduly late stage. It was argued that if compounding is early the pendency of arrears can be tackled. ............... Section 147 of the N.I. Act and held that the same is an enabling provision for compounding of the offence and is an exception to the general rule incorporated in sub- section 9 of Section 320 of the Code. ................. Court on the basis of the submissions of the learned Attorney General framed certain guidelines for compounding of offence under Section 138 of the N.I. Act. Those guidelines are as follows:

(a) That directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.
(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the court deems fit.
(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.
(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.

COMPROMISE DECREE PASSED IN LOK-ADALAT IN A CRIMINAL PROCEEDINGS HAS TO BE ENFORCED IN CIVIL COURT 2011 SC

COMPROMISE DECREE PASSED IN LOK-ADALAT IN A CRIMINAL PROCEEDINGS HAS TO BE ENFORCED IN CIVIL COURT 2011 SC.

JUSTICE P. Sathasivam, JUSTICE J. Chelameswar of the Supreme court of India in the case of K.N. Govindan Kutty Menon vs C.D. Shaji, Decided on 28 November, 2011,

Section 21 of the Act, which we have extracted above, contemplates a deeming provision, hence, it is a legal fiction that the "award" of the Lok Adalat is a decree of a civil court. In the case on hand, the question posed for consideration before the High Court was that "when a criminal case referred to by the Magistrate to a Lok Adalat is settled by the parties and award is passed recording the settlement, can it be considered as a decree of civil court and thus executable by that court?

SUPREME COURT ENDORSES THE DECISION OF MADRAS HIGH COURT In M/s Valarmathi Oil Industries & Anr. vs. M/s Saradhi Ginning Factory, AIR 2009 Madras 180, the admitted facts were that C.C. No. 308 of 2006 was taken on file by the learned Judicial Magistrate No. I, Salem on the complaint given by the respondent therein that the cheque was issued by the second petitioner therein on behalf of the first petitioner as partner of the firm, however, the same was dishonoured by the bank due to insufficient funds. According to the respondent, after issuance of the legal notice to the petitioner, the complaint was given under Section 138 of the N. I. Act against the petitioners. During the pendency of the criminal case, at the request of both the parties, the matter was referred to Lok Adalat for settlement. Both the parties were present before the Lok Adalat and as per the award, they agreed for the settlement and accordingly, the petitioner/accused agreed to pay Rs. 3,75,000/- to the respondent on or before 03.09.2007. It was signed by the respondent/complainant, petitioners/accused and their respective counsel. In view of the compromise arrived at between both the parties, the amount payable was fixed at Rs. 3,75,000/- towards full quit of the claim and that the petitioners therein agreed to pay the above-said amount on or before 03.09.2007 and accordingly, the award was passed and placed before the Judicial Magistrate Court for further orders. When the said award was placed before the learned Judicial Magistrate, by judgment dated 17.10.2007, based on the award held that the petitioners therein guilty and convicted under Section 138 of N.I. Act, accordingly, imposed sentence of one year simple imprisonment and directed the petitioners therein to pay a sum of Rs. 3,75,000/- as compensation to the respondent. Aggrieved by which, the petitioners/accused preferred appeal in C.S.No.167 of 2007 before the Sessions Judge, Salem. Learned Sessions Judge, while suspending the sentence of imprisonment till 16.12.2007, directed the petitioners/accused to deposit the sum of Rs. 3,75,000/- before the trial court and clarified that in case of failure of depositing the amount, the order of suspension of sentence would stand cancelled automatically and the petitioners were also directed to execute a bond for Rs. 10,000/- with two sureties each for the like sum to the satisfaction of the trial court. Aggrieved by the same, the accused preferred criminal revision case before the High Court. It was contended on behalf of the petitioners before the High Court that as per Section 21 of the Act, every award of the Lok Adalat shall be deemed to be a decree of a civil court and, therefore, after the award passed by the Lok Adalat, the respondent/complainant was entitled to execute the award like a decree of the civil court, however, in the instant case, the learned Magistrate, by his Judgment has found the petitioners guilty under Section 138 of N.I. Act and also convicted and sentenced them to undergo simple imprisonment for one year and to pay the compensation of Rs. 3,75,000/-. The question formulated by the High Court is whether the Magistrate can convict the petitioners/accused under Section 138 of N.I. Act after the award was passed in the Lok Adalat. Learned single Judge, after adverting to Section 21(1) of the Act and the order of the learned Magistrate has concluded as under:- Had there been no settlement in the Lok Adalat, the learned Magistrate could have proceeded with the trial and deliver his Judgment, for which, there is no bar. In the instant case, as admitted by both the learned Counsel, there was an award passed in the Lok Adalat, based on the consensus arrived at between the parties. As per the award, the petitioners/accused had to pay Rs. 3,75,000/- to the respondent/complainant on or before 03.09.2007. As it is an award made by Lok Adalat, it is final and binding on the parties to the criminal revision and as contemplated under Section 21(2) of the Act, no appeal shall lie to any court against the award. ........ In such circumstances, the petitioners could have filed the Execution Petition before the appropriate court, seeking the award amount to be paid with interest and costs. In such circumstances, it is clear that the learned Judicial Magistrate became functus officio, to decide the case after the award passed by Lok Adalat, to convict the accused under Section 138 of Negotiable Instruments Act, hence, the impugned order passed by the learned Sessions Judge is also not sustainable in law, however, it is clear that the petitioners/accused herein after having given consent for Lok Adalat award being passed and also the award amount agreed to pay Rs. 3,75,000/- on or before 03.09.2007 to the respondent, have not complied with their undertaking made before the Lok Adalat, which cannot be justified. However, the order passed by the learned Judicial Magistrate under Section 138 of Negotiable Instruments Act has to be set aside, in view of the Lok Adalat award passed under Section 20(1)(i)(b), 20(1)(ii) of Legal Services Authorities Act (Act, 39/1987), as the Judicial Magistrate became functus officio and the award is an executable decree in the eye of law, as per Section 21 of the Act. ........ After arriving at such conclusion, learned single Judge made it clear that as per the award passed by the Lok Adalat, the respondent/complainant is at liberty to file Execution Petition before the appropriate court to get the award amount of Rs. 3,75,000/- reimbursed with subsequent interest and costs, as per procedure known to law. .......


In Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and Others, (2003) 2 SCC 111, it was held that the purpose and object of creating a legal fiction in the statute is well known and when a legal fiction is created, it must be given its full effect.

In Ittianam and Others vs. Cherichi @ Padmini (2010) 8 SCC 612, it was held that when the Legislature uses a deeming provision to create a legal fiction, it is always used to achieve a purpose.

It is useful to refer the judgment of this Court in State of Punjab & Anr. vs. Jalour Singh and Ors. (2008) 2 SCC 660. The ratio that decision was that the "award" of the Lok Adalat does not mean any independent verdict or opinion arrived at by any decision making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed by the parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat. This judgment was followed in B.P. Moideen Sevamandir and Anr. vs. A.M. Kutty Hassan (2009) 2 SCC 198.

In P.T. Thomas vs. Thomas Job, (2005) 6 SCC 478, Lok Adalat, its benefits, Award and its finality has been extensively discussed.


FROM THE ABOVE DISCUSSION FOLLOWING PROPOSITION LAID DOWN BY SUPREME COURT

1) In view of the unambiguous language of Section 21 of the Act, every award of the Lok Adalat shall be deemed to be a decree of a civil court and as such it is executable by that Court.
2) The Act does not make out any such distinction between the reference made by a civil court and criminal court.
3) There is no restriction on the power of the Lok Adalat to pass an award based on the compromise arrived at between the parties in respect of cases referred to by various Courts (both civil and criminal), Tribunals, Family court, Rent Control Court, Consumer Redressal Forum, Motor Accidents Claims Tribunal and other Forums of similar nature.
4) Even if a matter is referred by a criminal court under Section 138 of the Negotiable Instruments Act, 1881 and by virtue of the deeming provisions, the award passed by the Lok Adalat based on a compromise has to be treated as a decree capable of execution by a civil court.

PRINCIPLES GOVERNING THE COURT TO DIRECT TO GIVE BLOOD TO TEST THE PATERNITY

Supreme Court had in Goutam Kundu v. State of West Bengal & Anr., (1993) 3 SCC 418 even while sounding a note of caution with regard to a court's approach in deciding such applications, had summarized the legal position in the following manner: -
(1) that courts in India cannot order blood test as matter of course;
(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.
(3) There must be a strong prima facie case in that the husband must establish non access in order to dispel the presumption arising under section 112 of the Evidence Act.
(4) The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
(5) No one can be compelled to give sample of blood for analysis."


In Dukhtar Jahan (Smt.) v. Mohammed Farooq (1987 (1) SCC 624) Court held: "... Section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of the man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman." The view has been reiterated by this Court in many later cases e.g. Amarjit Kaur v. Harbhajan Singh and Anr. (2003 (10) SCC 228).


Banarsi Dass v. Teeku Dutta (Mrs.) and Anr. 2005(3 )SCR923 , 2005(4 )SCC449 We may remember that Section 112 of the Evidence Act was enacted at a time when the modem scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above. (See Kamti Devi (Smt.) and Anr. v. Poshi Ram (2001 (5) SCC 311).

Sharda vs Dharmpal AIR 2003 SC 3450, PRINCIPLES STATED REGARDING DNA TEST IN MATRIMONIAL CASES

1. A matrimonial court has the power to order a person to undergo medical test.
2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution
3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.

Whether compelling a person to take HIV test amounts to denying the right to privacy?

In M. Vijaya v. The Chairman, Singareni Collieries and Ors. reported in AIR 2001 (AP) 502, the full bench of Andhrapradesh High court, headed by then Chief Justice SB.Sinha, upon a detailed discussion of the competing rights of a private party and public right with reference to right to privacy of a person suspected of suffering from AIDS, held: "There is an apparent conflict between the right to privacy of a person suspected of HIV not to submit himself forcibly for medical examination and the power and duty of the State to identify HIV infected persons for the purpose of stopping further transmission of the virus. In the interests of the general public, it is necessary for the State to identify HIV positive cases and any action taken in that regard cannot be termed as unconstitutional as under Article 47 of the Constitution, the State was under an obligation to take all steps for the improvement of the public health. A law designed to achieve this object, if fair and reasonable, in our opinion will not be in breach of Article 21 of the Constitution of India. It is well settled that right to life guaranteed under Article 21 is not mere animal existence. It is a right to enjoy all faculties of life. As a necessary corollary, right to life includes right to healthy life."

In Kharak Singh v. State of U.P., Govind v. State of M.P. and Ors. AIR 1963 SC 1295 cases, the Supreme Court held that right to privacy is one of the penumbral rights of Article 21 of the Constitution. In all situations, a person can be asked to undergo HIV test with informed consent. If a person declines to take a test, is it permissible to compel such person to take the test? The question is whether right to privacy is violated if a person is subjected to such test by force without his consent? By the end of 1991, 36 federal states in USA enacted legislations regarding informed consent for HIV test. These legislations intended to promote voluntary test and risk reduction counselling. In USA, law also applies for involuntary tests and disclosure of information about the people in prisons, mental hospital, juvenile facilities and residential homes for mentally disabled persons. In India there is no general law as such compelling a person to undergo HIV/AIDS test. Indeed, Article 20 of the Constitution states that no person accused of any offence shall be compelled to be a witness against himself. Be that as it may, under Prison Laws, as soon as a prisoner is admitted to prison, he is required to be examined medically and the record of prisoner's health is to be maintained in a register. Women prisoners can only be examined by the matron under the general or special powers of the Medical Officer. As per Section 37 of the Prisons Act, any prisoner wanting to be medically examined or appearing to be sick has to be reported before the Jailor who in turn is liable to call the attention of the Medical Officer in that behalf and all the directions issued by the Medical officer are to be recorded."

WHY MERE BREACH OF CONTRACT DOES NOT BECOME CHEATING IN EVERY CASE

Hridaya Ranjan Prasad Verma and others v. State of Bihar and another, 2002 (2) RCR (Crl.) 484, the Hon'ble Supreme Court observed as under :- " In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.''

RIGHT TO LIFE AND PERSONAL LIBERTY INCLUDE

Unnikrishnan v. State of A.p. (1993) 1 SCC 645 Mohan, J. has mentioned about the rights which have been held to be covered under Article 21. These being:

(1) The right to go abroad. Satwant Singh Sawhney v. D. Ramarathnam APO, New Delhi (1967) 3 SCR 525 AIR 1967 SC 1836. .
(2) The right to privacy. Gobind v. State of M.P. (1975) 2 SCC 148 1975 SCC (Cri) 468: (1975) 3 SCR 946 In this case reliance was placed on the American decision in Griswold v. Connecticut 381 US 479, 510: 14 L Ed2d 511 (1965) 408.
(3) The right against solitary confinement. Sunil Batra v. Delhi Admn. (1978) 4 SCC 494, 545: 1979 SCC (Cri) 155
(4) The right against bar fetters. Charles Shobraj v. Supdt., Central Jail (1978) 4 SCC 104: 1978 SCC (Cri) 542: (1979) 1 SCR 512.
(5) The right to legal aid. M. H. Hoskot v. State of Maharashtra' (1978) 3 SCC 544: 1978 SCC (Cri) 468: (1979) 1 SCR 192.
(6) The right to speedy trial. Hussainara Khatoon(1) v. Home Secretary, State of Bihar (1980) 1 SCC 81 : 1980 SCC (Cri) 23 : (1979) 3 SCR 169.
(7) The right against handcuffing. Prem Shankar Shukla v. Delhi Admn. (1980) 3 SCC 526: 1980 SCC (Cri) 815 :(1980) 3 SCR 855
(8) The right against delayed execution. T. V. Vatheeswaran v. State of T. N. (1983) 2 SCC 68 : 1983 SCC (Cri) 342: AIR 1983 SC 361
(9) The right against custodial violence. Sheela Barse v. State of Maharashtra (1983) 2 SCC 96: 1983 SCC (Cri) 353.
(10) The right against public hanging. A.G. of India v. Lachma Devi 1989 Supp (1) SCC 264: 1989 SCC (Cri) 413 : AIR 1986 SC 467.
(11) Doctor's assistance. Paramanand Katra v. Union of India (1989) 4 SCC 286: 1989 SCC (Cri) 721.
(12) Shelter. Shantistar Builders v. N.K. Totame . (1990) 1 SCC 520

PANCHSHEEL PRINCIPLES GUIDING CIRCUMSTANTIAL EVIDENCE

Before a case against an accused vesting on circumstantial evidence can be said to be fully established the following conditions must be fulfilled as laid down in Hanumat's v. State of M.P. [1953] SCR 1091. These five golden principles constitute the panchsheel of the proof of a case based on circumstantial evidence
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;
2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of a conclusive nature and tendency
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
These aspects were highlighted in State of Rajasthan v. Raja Ram (2003 (8) SCC 180), State of Haryana v. Jagbir Singh and Anr. (2003 (11) SCC 261)

WHEN FALSE EXPLANATION OF ACCUSED CAN BE USED AS LINK TO PROSECUTION CASE

In Sharad Birdhichand Sarda v. State of Maharashtra , AIR 1984 SC 1622, 1985 SCR (1) 88, It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law. However, where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case the same could be cured or supplied by a false defence or a plea which is not accepted by a Court.

Before a false explanation can be used as additional link, the following essential conditions must be satisfied:
1. Various links in the chain of evidence led by the prosecution have been satisfactorily proved;
2. The said circumstance point to the guilt of the accused with reasonable definiteness and;
3. The circumstances is in proximity to the time and situation.
If these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend as assurance to the Court and not otherwise. On the facts and circumstances of the present case this does not appear to be such a case. There is a vital difference between an incomplete chain of circumstances and a circumstance, which, after the chain is complete, is added to it merely to reinforce the conclusion of the court.

IN CASE OF MURDER BY ADMINISTERING POISION – WHAT COURTS HAS TO SCAN

In Sharad Birdhichand Sarda v. State of Maharashtra , AIR 1984 SC 1622, 1985 SCR (1) 88, In the cases of murder by administering poison, the Court must carefully scan the evidence and determine the four important circumstances which alone can justify the conviction: (1) There is a clear motive for an accused to administer poison to the deceased; (ii) that the deceased died of poison said to have been administered; (iii) that the accused had the poison in his possession; and (iv) that he had an opportunity to administer the poison to the accused.

In the instant case, taking an over all picture on this part of the prosecution case the position seems to be as follows:

1. If the accused wanted to give poison while Manju was wide awake, she would have put up stiffest possible resistance as any other person in her position would have done. Dr. Banerjee in his postmortem report has not found any mark of violence or resistance even if she was overpowered by the appellant she would have shouted and cried and attracted persons from the neighbouring flats which would have been a great risk having regard to the fact that some of the inmates of the house had come only a short- while before the appellant.
2. Another possibility which cannot be ruled out is that potassium cyanide may have been given to Manju in a glass of water if she happened to ask for it. But if this was so, she being a chemist herself would have at once suspected some foul play and once her suspicion would have arisen it would be very difficult for the appellant to murder her.
3. The third possibility is that as Manju had returned pretty late to the flat and she went to sleep even before the arrival of the appellant and then he must have tried forcibly to administer the poison by the process of mechanical suffociation, in which case alone the deceased could not have been in a position to offer any resistance but this opinion of doctor, has not been accepted by the High Court, after a very elaborate consideration and discussion of the evidence, the circumstances and the medical authorities, found that the opinion of the doctor that Manju died by mechanical suffocation had not been proved or at any rate it is not safe to rely on such evidence.
4. The other possibility that may be thought of is that Manju died a natural death. This also is eliminated in view of the report of the Chemical Examiner as confirmed by the postmortem that the deceased died as a result of administration of potassium cyanide.
5. The only other reasonable possibility that remains is that as the deceased was fed up with the maltreatment by her husband, in a combined spirit of revenge and hostility after entering the flat she herself took potassium cyanide and lay limp and lifeless. When the appellant entered the room he must have thought that as she was sleeping she need not be disturbed but when he found that there was no movement in the body after an hour his suspicion was roused and therefore he called his brother from the adjacent flat to send for Dr. Lodha.
In these circumstances, it cannot be said that a reasonable possibility of the deceased having committed suicide as alleged by the defence cannot be safely ruled out or eliminated. It is clear that the circumstances of the appellant having been last seen with the deceased and has administered the opinion has not been proved conclusively so as to raise an irresistible inference that Manju's death was a case of blatant homicide. Further, in a matter of this magnitude it would be quite natural for the members of the appellants family to send for their own family doctor who was fully conversant with the ailment of every member of the family. In these circumstances there was nothing wrong if the appellant and his brother went to a distance of one and a half kilometer to get. Dr. Lodha. Secondly, Dr. Shrikant Kelkar was a skin specialist whereas Dr. (Mrs,) Anjali Kelkar was a Paediatrician and the appellant may have genuinely believed that as they belonged to different branches, they were not at all suitable to deal with such a serious case. The High Court was, therefore, wrong in treating this circumstance namely not calling the two Doctors in the flat, as an incriminating conduct of the appellant. The circumstances which were not put to the appellant in his examination under S. 313 of the Criminal Procedure Code must be completely excluded from considerating because the appellant did not have any chance to explain them.

Viewing the entire evidence, the circumstance of the case and the interpretation of the decisions of the Supreme Court the legal and factual position are

(i) that the five golden principles enunciated by the Supreme Court in Hanumant v. The State of M.P. [1952] SCR 1091 have not been satisfied in the instant case. As a logical corollary, it follows that cannot be held that the act of the accused cannot be explained on any other hypothesis except the guilt of the appellant nor can it be said that in all human probability, the accused had committed the murder of Manju. In other words, the prosecution has not fulfilled the essential requirements of a criminal case which rests purely on circumstantial evidence;
(ii) From the recital in the letters Ex. P30, Ex-P32 and Ex-P33 it can be safely held that there was a clear possibility and a tendency on the part of the deceased Manju to commit suicide due to desperation and frustration. She seems to be tried of her married life, but she still hoped against hope that things might improve. She solemnly believed that her holy union with her husband bring health and happiness to her but unfortunately it seems to have ended in a melancholy marriage which left her so lonely and frustrated so much of emotional disorder resulting from frustration and pessimism that she was forced to end her life. There can be no doubt that Manju was not only a sensitive and sentimental women was extremely impressionate and the letters show that a constant conflict between her mind and body was going on and unfortunately the circumstances which came into existence hastened her end. People with such a psychotic philosophy or bent of mind always dream of an ideal and if the said ideals fails, the failure drives them to end their life, for they feel that no charm is left in their life;
(iii) The prosecution has miserably failed to prove one of the most essential ingredients of a case of death caused by administration of poison i.e.. possession with the accused (either by direct or circumstantial evidence) and on this ground alone the prosecution must fails.
(iv) That is appreciating the evidence, the High Court has clearly misdirected itself on many points, and has thus committed a gross error of law;
(v) That the High Court has relied upon decisions of this Court which are either in applicable or which, on closer examination, do not support the view of the High Court being clearly distinguishable;
(vi) That the High Court has taken a completely wrong view of law in holding that even though the prosecution may suffer from serious infirmities it could be reinforced by additional link in the nature of false defence in order to supply the lacuna and has thus committed a fundamental error or law;
(vii) That the High Court has not only misappreciated the evidence but has completely overlooked the well established principles of law and has merely tried to accept the prosecution case based on tenterhooks and slender tits and bits;
(viii) It is wholly unsafe to rely on that part of the evidence of Dr. Banerjee (PW 33) which shows that poison was forcibly administered by the process of mechanical suffociation;
(ix) There is no manifest defect in the investigation made by the police which appears to be honest and careful. A proof positive of this fact is that even though Rameshwar Birdichand and other members of his family who had practically no role to play had been arraigned as accused but they had to be acquitted by the High Court for lack of legal evidence;
(x) That in view of the findings two views are clearly possible in the present case, the question of defence being false does not arise

LAST SEEN THEORY IN CRIMINAL TRIAL

In State of U.P. v. Satish [2005 (3) SCC 114] it was noted as follows: The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.

In Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted as follows: The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration". (See also Bodh Raj v. State of J&K (2002(8) SCC 45).

POWERS OF APPELLATE COURT DEALING WITH AN APPEAL AGAINST AN ORDER OF ACQUITTAL:-

From the below quoted decisions, in Chandrappa and Ors. v. State of Karnataka (2007 (4) SCC 415), the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal were culled out:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.


In Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC 57, referring to earlier decisions, the Court stated: “7. The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding.”


In Bhagwan Singh v. State of M.P. (2002) 4 SCC 85, the trial court acquitted the accused but the High Court convicted them. Negativing the contention of the appellants that the High Court could not have disturbed the findings of fact of the trial court even if that view was not correct, this Court observed: “7. We do not agree with the submissions of the learned counsel for the appellants that under Section 378 of the Code of Criminal Procedure the High Court could not disturb the finding of facts of the trial court even if it found that the view taken by the trial court was not proper. On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but judge-made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to reappreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not”


In Harijana Thirupala v. Public Prosecutor, High Court of A.P. (2002) 6 SCC 470, this Court said: “12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.”


In Ramanand Yadav v. Prabhu Nath Jha (2003) 12 SCC 606, this Court observed: 21. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not.


Again in Kallu v. State of M.P. (2006) 10 SCC 313, this Court stated: “8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court.”

CASE LAWS ON EXTRA JUDICIAL CONFESSION

In Satinder Pal Singh and Ors. v. State of Punjab 2005 (4) RCR Criminal(P&H) (Division Bench) 495, the extra judicial confession made by the accused to a person, who had no influence with the police was held to be not inspiring confidence and the same was not relied upon to prove the guilt of the accused.

In Jaswant Gir v. State of Punjab 2006 (2) RCR (Crl.) 202, no reason was assigned by the prosecution as to why accused would confide in the PW, who was only an acquaintance and with whom he had no intimate relation. There was also no explanation by the PW as to why he did not take the accused to police station after confession. The testimony of PW was held to be doubtful and the accused was acquitted.

In Sunny Kapoor v. State (UT of Chandigarh) 2006 (3) RCR (Criminal) 48 (S.C.) the accused allegedly made extra judicial confession to a social worker. They were not known to each other. In these circumstances, it was held that it was wholly unlikely that the accused would make extra-judicial confession, to a person, whom they never knew.

Accordingly, the accused were acquitted by the Apex Court. In Kavita v. State of Tamil Nadu 1998 (3) RCR (Criminal) 535 (SC), the principle of law, laid down, was to the effect, that there is, no doubt, that conviction can be based, on extra judicial confession, but it is well settled, that in the very nature of things, it is a weak piece of evidence. It is to be proved, just like any other fact, and the value thereof depends upon the veracity of the witness, to whom it is made.

In Jaspal Singh alias Pali v. State of Punjab 1977 (2) RCR 70 (SC), the principle of law, laid down, was to the effect, that the accused had no reason to go to the witness, and confess his guilt, by reposing confidence, in a person, who is inimically disposed towards him.

In Jagtrar Singh & Jagraj Singh v. State of Punjab1998 (3) CRR (Crl.) 517, it was held that normally one could confess, before a person, in authority, or someone close to him, so that the said person may be able to render some help and not before the close relation of the deceased, who could not possibly render the accused any help.

In Rahim Beg v. State of Uttar Pradesh, 1972 (Crl. L.J.), 1260, the principle of law, laid down, was to the effect, that extra judicial confession, is a weak piece of evidence, and it is most dangerous, to rely upon the same, to convict the accused, without corroboration.

In Haramba Brahama v. State of Assam 1983 Crl.L.J. 149 (SC), the principle of law, laid down, was to the effect, that it was dangerous to rely upon such an extra judicial confession, which did not make out a sense, without exact reproduction of words, spoken by the witness. It was also held, that if an extra judicial confession, is made to a person, having no intimacy, with the accused, and no reason is assigned, for making such an extra judicial confession, no reliance, can be placed thereon, for convicting the accused.

In Baldev Raj v. State of Haryana 1991 Crl. Courts Judgments 197 (SC), no doubt, the principle of law, laid down, was to the effect, that the extra judicial confession, could be relied upon, by the Court, if the same was found to be voluntary. It was further held that the value of the evidence, as to the confession, depends upon the veracity of the witness. It was also held that, if the extra judicial confession, is found to be voluntary, and the evidence of the witness, before whom, the same is made, is trustworthy, and he had also no axe to grind, against the accused, then conviction can be based, on the extra judicial confession, without corroboration.

In Balbir Singh v. State of Punjab 1999 (4) Recent Criminal Reports (Criminal), 51, the principle of law, laid down, was to the effect, that an extra judicial confession, even if believed, is a very weak piece of evidence and ordinarily not accepted without independent corroboration. In Balbir Singh's case (supra), the extra judicial confession, was made by the accused, before a Sarpach, who had no relations with him (accused). No valid reason was assigned, as to why the accused made confession, before the Sarpanch. No assurance, was held out, by the Sarpanch, to help the accused and save him from the police torture. In these circumstances, the extra judicial confession, in the absence of corroboration through an independent evidence, was held to be unreliable and unacceptable.

Makhan Singh vs State Of Punjab AIR 1988 SC 1705, Extra-judicial confession is a very weak piece of evidence and is hardly of any consequence. PW. 3 says that the appellant told him that as the police was after him he had come and confessed the fact so that he might not be unnecessarily harassed. There is nothing to indicate that this witness was a person having influence with the police or a person or some status to protect the appellant from harassment. There is no other corroborative evidence about the extra-judicial confession.

In Mukesh Busse v. State of Haryana 1997 (3) RCR 553, (P&H) (DB), extra judicial confession was made by the accused before the prosecution witness. The accused was not even earlier known to him. Rather, the PW belonged to the community of the deceased. It was held that the extra judicial confession could not be relied upon for conviction.

In Pasho Bai v. The State of Punjab 1998(2) CCC 139 (P&H), it was held that the extra judicial confession made to a stranger was of inconsequence. It was held that the confession is normally made to a person in whom the maker thereof, could repose confidence and also hope that he would extend sympathy. Under these circumstances, such an extra judicial confession was held to be of no consequence and no reliance was placed thereon.

In Surinder Kumar v. State of Punjab 1999 CLJ, 267 (SC), extra judicial confession was made jointly by all the accused, but the same was held to be suspicious, improbable and uncorroborated and no reliance was placed thereon.

In Madan Mohan @ David v. State of Haryana 1997 (1) RCR, 713 (P&H) (DB), extra judicial confession was made by the accused to a person who was neither related to him nor was thick with him. It was held that the confession is always made to a person whom the accused thinks would help him. Such confession was held to be unreliable.

CBI INVESTIGATION ORDERED BY SUPREME COURT REGARDING YEDDY CORRUPTION

READ FULL JUDGMENT
S.H. Kapadia, CJI., Aftab Alam , J, Swatanter Kumar, J. OF THE SUPREME COURT OF INDIA, IN THE CASE OF SAMAJ PARIVARTAN SAMUDAYA & ORS. VS. STATE OF KARNATAKA & ORS. DECIDED ON 11-05-2012 IN WRIT PETITION (CIVIL ) NO . 562 OF 2009

FACTS OF THE CASE:- Samaj Parivartan Samuday, a registered society, filed petition under Article 32 of the Constitution of India stating that the illegal mining in the States of Andhra Pradesh and Karnataka was still going on in full swing. Such illegal mining and transportation of illegally mined minerals were being done in connivance with the officials, politicians and even Ministers of State. There was a complete lack of action on the part of the Ministry of Environment and Forests on the one hand and the States of Andhra Pradesh and Karnataka, on the other. It was averred that there was complete breakdown of the official machinery, thereby allowing such blatant illegalities to take place. This inaction and callousness on the part of the Central and the State Governments and failure on their part to control the illegal mining has allowed large-scale destruction, both of forest and non-forest lands and has adversely affected the livelihood of the people.

It also prayed for cancelling of the ‘raising contracts’ or sub-lease executed by the Government of Karnataka in favour of the various private individuals and allowing back-door entry into the mining activity in those areas. The most significant prayer in this petition was that after stopping of the mining activity, a systematic survey of both the inter-state border between the States of Andhra Pradesh and Karnataka and mine lease areas along the border be conducted and proper Relief and Rehabilitation Programmes (for short ‘RR Programmes’) be implemented.

INTERIM DIRECTION:- The CEC was required to submit quarterly reports, which it has been submitting and with the passage of time, large irregularities and illegalities coupled with criminality were brought to the notice of this Court. The CEC, in discharge of its functions and responsibilities, was examining the matters, in both the States of Andhra Pradesh and Karnataka. These violations have come to the surface as a result of enquiries conducted by the CEC, regarding illegal mining and mining beyond their leased areas by these companies. It was pointed by the CEC with specific reference to these companies that there was not only illegal extraction of iron ore but the minerals was being also extracted beyond the leased area specified in the lease deeds. Further, there was unchecked export of iron ore from the border areas of the two States, Andhra Pradesh and Karnataka. This related to the quantum, quality and transportation of ore as well.

WHAT REPORT CEC GAVE:-

CEC pointed out illegalities, irregularities and instances of misuse of public office committed for the benefit of the close relatives of the then Chief Minister, State of Karnataka. It made the following recommendations :- “15. Keeping in view the above facts and circumstances the CEC is of the considered view that the purchase of the above said land notified for acquisition for public purpose, its de-notification from acquisition, permission granted for conversion from agriculture to non-agricultural (residential) purpose andsubsequent sale to M/s South West Mining Limited prima facie involves serious violations of the relevant Acts and procedural lapses and prima facie misuse of office by the then Chief Minister, Karnataka thereby enabling his close relatives to make windfall profits and raises grave issues relating to undue favour, ethics and morality. Considering the above and taking into consideration the massive illegalities and illegal mining which have been found to have taken place in Karnataka and the allegations made against the Jindal Group as being receipient of large quantities of illegally mined material and undue favour being shown to them in respect of the mining lease of M/s MML it is RECOMMENDED that a detailed investigation may be directed to be carried out in the matter by an independent investigating agency such as the Central Bureau of Investigation (CBI) and to take follow up action. This agency may be asked to delve into the matter in depth and in a time bound manner. This agency may also be directed to investigate into other similar cases, if any, of lands de-notified from acquisition by the Bangalore Development Authority and the illegalities / irregularities /procedural lapses, if any, and to take follow up action.

16. The Prerna Education Society set up by the close relatives of the then Chief Minister, Karnataka has during March, 2010 vide two cheques of Rs.5.0 crores each received a donation of Rs.10 crores from M/s South West Mining Limited, a Jindal Group Company. In this context, it is of interest to note that during the year 2009-2010 the net profit (after tax) of the said Company was only Rs.5,73 crores. Looking into the details of the other donations made by the said Company or by the other Jindal Group Companies to any other Trust / Society not owned, managed or controlled by the Jindal Group. After considering that a number of allegations, with supporting documents, have been made in the Report dated 27th July, 2011 of Karnataka Lokayukta regarding the M/s. JSW Steel Limited having received large quantities of illegal mineral and alleged undue favour shown to it in respect of the extraction / supply of iron ore by / to it from the mining lease of M/s MML, it is RECOMMENDED that this Hon’ble Court may consider directing the investigating agency such as CBI to also look into the linkages, if any, between the above said donation of Rs.10 crores made by M/s South West Mining Limited and the alleged receipt of illegal mineral by M/s JSW Steel Limited and the alleged undue favour shown to it in respect of the mining lease of M/s MML.

17. The CEC has filed its Report dated 28th March, 2012 wherein the representation filed by the petitioner against Mr. R. Parveen Chandra (ML 2661) has been dealt with (refer para 6(ii), page 11-13 of the CEC Report dated 28th March, 2012). In the said representation it has been alleged that Mr. Parveen Chandra the lessee of ML No.2661 has made two payments, one of Rs.2.50 crores to M/s Bhagat Homes Private Limited and the other of Rs.3.5 crores to M/s Dhavalagir Property Developers Private Limited as a quid pro quo for allotment of the said mining lease. It is RECOMMENDED that this Hon’ble Court may consider directing the investigating agency such as CBI to investigate the payments made by the above said lessee to these two companies whose Directions / shareholders are the close relatives of the then Chief Minister, Karnataka and whether there was any link between such payments and grant of mining lease to Mr. Parveen Chandra.”

COURT CONSIDERED ONLY 20-04-2012 REPORT IT KEPT OPEN TO HEAR ON 27-04-2012 REPORT:- When we heard the parties to the lis and even permitted the affected parties as interveners, the hearing had been restricted to the Report of the CEC dated 20th April, 2012. Therefore, presently, we are passing directions only in relation to that Report, while postponing the hearing of the second Report which is dated 27th April, 2012

LEGAL ASPECTS OF INVESTIGATION OF CRIMINAL OFFENCE DISCUSSED:-

The machinery of criminal investigation is set into motion by the registration of a First Information Report (FIR), by the specified police officer of a jurisdictional police station or otherwise. The CBI, in terms of its manual has adopted a procedure of conducting limited pre-investigation inquiry as well. In both the cases, the registration of the FIR is essential. A police investigation may start with the registration of the FIR while in other cases (CBI, etc.), an inquiry may lead to the registration of an FIR and thereafter regular investigation may begin in accordance with the provisions of the CrPC. Section 154 of the CrPC places an obligation upon the authorities to register the FIR of the information received, relating to commission of a cognizable offence, whether such information is received orally or in writing by the officer in-charge of a police station. A police officer is authorised to investigate such cases without order of a Magistrate, though, in terms of Section 156(3) Cr.P.C. the Magistrate empowered under Section 190 may direct the registration of a case and order the police authorities to conduct investigation, in accordance with the provisions of the CrPC. Such an order of the Magistrate under Section 156(3) CrPC is in the nature of a pre-emptory reminder or intimation to police, to exercise their plenary power of investigation under that Section. This would result in a police report under Section 173, whereafter the Magistrate may or may not take cognizance of the offence and proceed under Chapter XVI CrPC. The Magistrate has judicial discretion, upon receipt of a complaint to take cognizance directly under Section 200 CrPC, or to adopt the above procedure. [Ref. Gopal Das Sindhi & Ors. v. State of Assam & Anr. [AIR 1961 SC 986]; Mohd. Yusuf v. Smt. Afaq Jahan & Anr. [AIR 2006 SC 705]; and Mona Panwar v. High Court of Judicature of Allahabad Through its Registrar & Ors. [(2011) 3 SCC 496].

8. Once the investigation is conducted in accordance with the provisions of the CrPC, a police officer is bound to file a report before the Court of competent jurisdiction, as contemplated under Section 173 CrPC, upon which the Magistrate can proceed to try the offence, if the same were triable by such Court or commit the case to the Court of Sessions. It is significant to note that the provisions of Section 173(8) CrPC open with nonobstante language that nothing in the provisions of Section 173(1) to 173(7) shall be deemed to preclude further investigation in respect of an offence after a report under sub-Section (2) has been forwarded to the Magistrate. Thus, under Section 173(8), where charge-sheet has been filed, that Court also enjoys the jurisdiction to direct further investigation into the offence. {Ref., Hemant Dhasmana v. Central Bureau of Investigation & Anr. [(2001) 7 SCC 536]}. This power cannot have any inhibition including such requirement as being obliged to hear the accused before any such direction is made. It has been held in Shri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandha Maharaj v. State of Andhra Pradesh and Ors. [JT 1999 (4) SC 537] that the casting of any such obligation on the Court would only result in encumbering the Court with the burden of searching for all potential accused to be afforded with the opportunity of being heard.
A person who complains of commission of a cognizable offence has been provided with two options under Indian Criminal jurisprudence. Firstly, he can lodge the police report which would be proceeded upon as afore-noticed and secondly, he could file a complaint under Section 200 CrPC, whereupon the Magistrate shall follow the procedure provided under Sections 200 to 203 or 204 to 210 under Chapter XV and XVI of the CrPC.

In the former case, it is upon the police report that the entire investigation is conducted by the investigating agency and the onus to establish commission of the alleged offence beyond reasonable doubt is entirely on the prosecution. In a complaint case, the complainant is burdened with the onus of establishing the offence and he has to lead evidence before the Court to establish the guilt of the accused. The rule of establishing the charges beyond reasonable doubt is applicable to a complaint case as well.

The important feature that we must notice for the purpose of the present case is that even on a complaint case, in terms of Section 202, the Magistrate can refer the complaint to investigation by the police and call for the report first, deferring the hearing of the complaint till then. Section 210 CrPC is another significant provision with regard to the powers of the Court where investigation on the same subject matter is pending. It provides that in a complaint case where any enquiry or trial is pending before the Court and in relation to same offence and investigation by the Police is in progress which is the subject matter of the enquiry or trial before the Court, the Magistrate shall stay the proceedings and await the report of the investigating agency. Upon presentation of the report, both the cases on a Police report and case instituted on a complaint shall be tried as if both were instituted on a Police report and if the report relates to none of the accused in the complaint it shall proceed with the enquiry/trial which had been stayed by it. The section proceeds on the basis that a complaint case and case instituted on a police report for the commission of the same offence can proceed simultaneously and the Court would await the Police report before it proceeds with the complaint in such cases. The purpose again is to try these cases together, if they are in relation to the same offence with the intent to provide a fair and effective trial. The powers of the trial court are very wide and the legislative intent of providing a fair trial and presumption of innocence in favour of the accused is the essence of the criminal justice system.

The Court is vested with very wide powers in order to equip it adequately to be able to do complete justice. Where the investigating agency has submitted the charge sheet before the court of competent jurisdiction, but it has failed to bring all the culprits to book, the Court is empowered under Section 319 Cr.P.C. to proceed against other persons who are not arrayed as accused in the chargesheet itself. The Court can summon such suspected persons and try them as accused in the case, provided the Court is satisfied of involvement of such persons in commission of the crime from the record and evidence before it.

We may notice that the investigation of a case or filing chargesheet in a case does not by itself bring the absolute end to exercise of power by the investigating agency or by the Court. Sometimes and particularly in the matters of the present kind, the investigating agency has to keep its options open to continue with the investigation, as certain other relevant facts, incriminating materials and even persons, other than the persons stated in the FIR as accused, might be involved in the commission of the crime. The basic purpose of an investigation is to bring out the truth by conducting fair and proper investigation, in accordance with law and ensure that the guilty are punished. At this stage, we may appropriately refer to the judgment of this Court in the case of Nirmal Singh Kahlon v. State of Punjab & Ors. [(2009) 1 SCC 441] wherein an investigation was being conducted into wrongful appointments to Panchayat and other posts by the Police Department of the State. However, later on, these were converted into a public interest litigation regarding larger corruption charges. The matter was sought to be referred for investigation to a specialised agency like CBI. The plea taken was that the Special Judge was already seized of the case as charge sheet had been filed before that Court, and the question of referring the matter for investigation did not arise. The High Court in directing investigation by the CBI had exceeded its jurisdiction and assumed the jurisdiction of the Special Judge. The plea of prejudice was also raised. While rejecting these arguments, the appeals were dismissed and this Court issued a direction to the CBI to investigate and file the charge sheet before the Court having appropriate jurisdiction over the investigation.

There is no provision in the CrPC where an investigating agency must provide a hearing to the affected party before registering an FIR or even before carrying on investigation prior to registration of case against the suspect. The CBI, as already noticed, may even conduct pre-registration inquiry for which notice is not contemplated under the provisions of the Code, the Police Manual or even as per the precedents laid down by this Court. It is only in those cases where the Court directs initiation of investigation by a specialized agency or transfer investigation to such agency from another agency that the Court may, in its discretion, grant hearing to the suspect or affected parties. However, that also is not an absolute rule of law and is primarily a matter in the judicial discretion of the Court. This question is of no relevance to the present case as we have already heard the interveners.

In the case of Narmada Bai v. State of Gujarat & Ors. [(2011) 5 SCC 79], this Court was concerned with a case where the State Government had objected to the transfer of investigation to CBI of the case of a murder of a witness to a fake encounter. The CBI had already investigated the case of fake encounter and submitted a charge sheet against high police officials.

This Court analyzed the entire law on the subject and cited with approval the judgment of the Court in the case of Rubabbuddin Sheikh v. State of Gujarat [(2010) 2 SCC 200]. In that case, the Court had declared the law that in appropriate cases, the Court is empowered to hand over investigation to an independent agency like CBI even when the charge-sheet had been submitted.

In the case of Narmada Bai, the Court had observed that there was a situation which upon analysis of the allegations it appeared that abduction of Sohrabuddin and Kausarbi thei their subsequent murder as well as the murder of the witnesses are one series of facts and was connected together as to form the same transaction under Section 220 of the Code of Criminal Procedure and it was considered appropriate to transfer the investigation of the subsequent case also to CBI.

FOR WHAT REASONS CBI ENQUIRY ORDERED:-
Court cannot rule out the possibility that all these acts and transactions may be so inter-connected that they would ultimately form one composite transaction making it imperative for the Court to direct complete and comprehensive investigation by a single investigating agency. The need to so direct is, inter alia, for the following considerations:

(a) The report of the CEC has brought new facts, subsequent events and unquestionable documents on record to substantiate its recommendations.

(b) The subsequent facts, inquiry and resultant suspicion, therefore, are the circumstances for directing further and specialized investigation.

(c) The scope and ambit of present investigation is much wider than the investigations/proceedings pending before the Court/investigating agencies.

(d) Various acts and transactions prima facie appear to be part of a same comprehensive transaction.

(e) The requirement of just, fair and proper investigation would demand investigation by a specialized agency keeping in view the dimensions of the transactions, the extent of money involved and manipulations alleged.

CONCLUDED POINTS OF LAW

FURTHER INVESTIGATION:- It is a settled position of law that an investigating agency is empowered to conduct further investigation after institution of a charge-sheet before the Court of competent jurisdiction. A magistrate is competent to direct further investigation in terms of Section 173(8) Cr.P.C. in the case instituted on a police report. Similarly, the Magistrate has powers under Section 202 Cr.P.C. to direct police investigation while keeping the trial pending before him instituted on the basis of a private complaint in terms of that Section. The provisions of Section 210 Cr.P.C. use the expression ‘shall’ requiring the Magistrate to stay the proceedings of inquiry and trial before him in the event in a similar subject matter, an investigation is found to be in progress. All these provisions clearly indicate the legislative scheme under the Cr.P.C. that initiation of an investigation and filing of a chargesheet do not completely debar further or wider investigation by the investigating agency or police, or even by a specialized investigation agency. Significantly, it requires to be noticed that when the court is to ensure fair and proper investigation in an adversarial system of criminal administration, the jurisdiction of the Court is of a much higher degree than it is in an inquisitorial system. It is clearly contemplated under the Indian Criminal Jurisprudence that an investigation should be fair, in accordance with law and should not be tainted. But, at the same time, the Court has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation so as to throttle a fair investigation resulting in the offenders escaping the punitive course of law. It is the inherent duty of the Court and any lapse in this regard would tantamount to error of jurisdiction.

CRIME IS OFFENCE AGAINST STATE:- We must notice that the criminal offences are primarily offences against the State and secondarily against the victim. In this case, if the investigation by specialized agency finds that the suspect persons have committed offences with or without involvement of persons in power, still such violation undoubtedly would have been a great loss to the environmental and natural resources and would hurt both the State and national economy. We cannot expect an ordinary complainant to carry the burden of proving such complex offences before the Court of competent jurisdiction by himself and at his own cost. Doing so would be a travesty of the criminal justice system.

OBLIGATION OF STATE TO TAKE ACTION AGAINST VIOLATORS:- It was ever and shall always remain the statutory the obligation of the State to prove offences against the violators of law. If a private citizen has initiated the proceedings before the competent court, it will not absolve the State of discharging its obligation under the provisions of the CrPC and the obligations of Rule of Law. The Court cannot countenance an approach of this kind where the State can be permitted to escape its liability only on the ground that multifarious complaints or investigations have been initiated by private persons or bodies other than the State. In our considered view, it enhances the primary and legal duty of the State to ensure proper, fair and unbiased investigation.

WHEN STATE FAILS COURT STEPS IN :- Wherever and whenever the State fails to perform its duties, the Court shall step in to ensure that Rule of Law prevails over the abuse of process of law. Such abuse may result from inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or legal obligations in consonance with the procedural and penal statutes. This Court expressed its concern about the rampant pilferage and illegal extraction of natural wealth and resources, particularly, iron ore, as also the environmental degradation and disaster that may result from unchecked intrusion into the forest areas.

WHAT SPECIFIC DIRECTIONS COURT MADE:- Compelled by the above circumstances and keeping in mind the clear position of law supra, we thus direct;

a) The issues specified at point 1(a) and 1(b) of the CEC Report dated 20th April, 2012 are hereby referred for investigation by the Central Bureau of Investigation.

b) All the proceedings in relation to these items, if pending before any Court, shall remain stayed till further orders of this Court. The CBI shall complete its investigation and submit a Report to the Court of competent jurisdiction with a copy of the Report to be placed on the file of this Court within three months.

c) The Report submitted by the CEC and the documents annexed thereto shall be treated as ‘informant’s information to the investigating agency’ by the CBI.

d) The CBI shall undertake investigation in a most fair, proper and unbiased manner uninfluenced by the stature of the persons and the political or corporate clout, involved in the present case. It will be open to the CBI to examine and inspect the records of any connected matter pending before any investigating agency or any court.

e) The competent authority shall constitute the special investigating team, headed by an officer not below the rank of Additional Director General of Police/Additional Commissioner forthwith.

f) Any investigation being conducted by any agency other than CBI shall also not progress any further, restricted to the items stated in clause (a) above, except with the leave of the Court. The CBI shall complete its investigation uninfluenced by any order, inquiry or investigation that is pending on the date of passing of this order.

g) This order is being passed without prejudice to the rights and contentions of any of the parties to the lis, as well as in any other proceedings pending before courts of competent jurisdiction and the investigating agencies.

h) All pleas raised on merits are kept open.

i) We direct all the parties, the Government of the States of Andhra Pradesh, Karnataka and all other government departments of that and/or any other State, to fully cooperate and provide required information to CBI.




KARNATAKA LAND LAWS

CASE LAW ON LAND LAWS