RAMA NAND AND ORS.

STATE OF HIMACHAL PRADESH

January 6, 1981

[R. S. SARKARIA AND R. S. PATHAK. JJ.]

Clrcumstantial evidence, "alue of-Corpus delicti not found in tlu case- Wllether inference of guilt of murder could be drawn l1/ie11 rhe othr cil'cum.f'- tances established 011 record were sufficient to !Cad to the coriclusion lfiot ltn"lhin all liun1a11 p1obability the rictini was murdered by the accust'd.

Dismissing the appeal and maintaining the conviction and sentences of the appellants, the Court

HELD : (I) It is well settled that where the inference of guilt of an accused PeriiOn .is to be drawn ftoin circumstantinP evidence only, thoSe circutrtstances must, in the first place, be cogently established. Further, those cin:umstances should be of a definite rendency pointin, g towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within an huma11 probability, the offence was committed by the accused and none else.

In the instant case-, the following circumstances had been correctly found to have been established by the prosecution: (i) Rama Naud accused bad a stroiit motive to murder bis wife, Sumitra. (ii) Sumitra \Vas last seen alive "ith Rama: Nand, appellant inthe family house at Jherwin on the night between 13th and 14th May, 1972.

(iii) (a) Rama Nand and the other co-accused falsely gave out that she had committed suicide by jumping into the river. They 'planred' o Sa/war and a pair of shoes on the bank of the Sutlaj and gave out that they belcnged to the deceased, and Shish Ram lodged a folsc report with the police to the effect that she had committed suicide by jumping into the river. The Salwar and the shoes, which had been 'planted' there to manufacture false clues by the accused, did not beiong to Sumitra, and the accused falsely ;:tiserte.d that these articles belong to the deceased.

(b) The story given out by the accused persons that upto 11 a.n1. on May 14, 1972, Sumitra was planting chillies along with Sheela and other members of the family of the accused, was false. (iv) Tue. gold chain (Ex. P-1) and the watch (Ex. P-2) \Vhich Sumitra ued to \Vear on her person all the 24 hours, and the clothes (Ex, P-5 to P-10) which she had on her person and lhc basket (fu. P-11) and umbrella (Ex. P-12) which sho was carrying \Vhcn on the evening of May 13, 1972 she came to the house of the accused at Jhen.vin, \Vere recovered: from the house: of thoaccued. (v) Somo days after the occurrence, one Paranda was found from the jungle near this village. There was a bunch of hair in the plated tail of this Paranda. The tail :ippeared to have been cut. These hair sticking in the paranda and those found: entangled in the Dupatta of the deceased were according to the Forensic Expert of one and the san1c person. (vi} A legless decomposed corpse \\'as. recovered from the Sutlej near village Randol in a mutilated condition.

But its identity

[4510-H, 452A-E, 453A-BJ

(2) Even o nthe assumption that the dead body of the victim was not found, circumstances (i) to (v) mentioned above in their cumulative effect includably and ra.tionally compeJ the conclusion that Sumitra had died and it 'n'as, Rama

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RAMA NANO v. H.P. (Sarkaria, J.) 445

Nand accused who had intentionally caused her death. Ordinarily, the recovery of the dead-body of the victim or a vital part of it, bearing marks of violence is sufficient proof of homicidal death of the victim. Even so, discovery of the dead-body of the victim bearing physical CiVidence of vio1encci, has never been considered as the only mode of proving the corpus delicti in murder.

Indeed ve.ry many cases arc of such a nature where the discovery of the dead-body is in1possible.

A blind adherence to this old doctrine of Sir Mathew Hale that "for a conviction of murder atlcast the bcxly was found dead" would open the doer \\'idc open for many a henious. murderer to escape \Vith impunity simply because they were: a cunning and cleYer enough to destroy the body of their victim.

Jn the context of our law, Haolc's enunciation has to be interpreted no more than emphasising that where the dead-body of the victim in a: murder case is not found, other cogent and satisfactory prOOf of hon1icidal dlath of the victim must be adduced by the prosecuti.on.

Such proof may be the dir("Ct ocular account of an eye-witness, or by circurnstantial evidence, or by both: But \vhere the fact of corpus delicti, i.e. 'homicidal death' is sought to be established by circumstantial evidence alone. the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerried has met ahomicidal death. f, ven so, this principle of caution cannot be pushe'cl too far as requiring absolute proof. Perfect proof is se; ldom to be .had in this imperfect \VOrld, and absolute certainty is a myth.

That is \vhy under Section 3, Evidence Act, a fact is said to be "proved'', ir tlie Court coru; idering the matters beforeit, considers its existence so probable that a prudent man ought. under the circumstanCts of the paorticular case, to act up-On the sllpposition that it exists. The corpl1s delicti' or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances \vhich definitely lead to the conclusion that within alt human probability, the victim has been murdered by the accused concerned. [457 D-H, 458AD1

CRIMINAi. APPllLLATE JuR1smcnoN: Criminal Appeal No. 11 of 1975.

Appeal by Special Leave from the Judgment and Order dated

7-6-1974 of the Himachal Pradesh High Court in Criminal Appeal F r~ No. 40/73.

flardya/ Hardy and P. P. Juneja for the Appellants .

Badri Das Sharma and Miss A. Subhashini for the Respondent.

The Judgment of the Court was delivered by

SARKARIA, J.

This appeal by special leave is directed against a judgment, dated June, 7, 1974, of the High Cour~ of Himaehal Pradesh, whereby it upheld the conviction of Rama Nand accused under Section 302, Penal Code. and that of the co-accused Sbish Ram and Kali Datt under Section 201, Penal Code, and also the sentences awarded to each of them by the learned Sessions Judge,

A Mandi.

The prosecution story, as it emerged from the record, was as follows:

Sumitra deceased, aged 19 yearn, was }he daughter of Som Krishan (P.W. 33). Rama Nand, appellant is her husband and Shish Ram, appellant 2, is her father-in-law while Kali Datt appellant ii 3, is the younger brother of Rama Nand.

. b

Sumitra's father wished to see his daughter highly educated, and employed in Government service and married to a suitable, highly educated person, settled in life.

Sumitra had passed Higher Secondary Examination and wanted to pursue her studies further according to the wishes of her father.

About two years before Sumitra's reported death, Shish Ram appellant approached Som Krishan (P, W. 33) and persuaded him to give Sumitra in marriage to hi~ son, Rama Nand.

While negotiating this matrimonial alliance, Shish Rama told Som Krishan that his son was suitably employed on a Government job in the Office of the Deputy Commissioner, Kasumpti.

He further falsely represented to Som Krishan that his son, Rama Nand was a graduate.

Believing this representation to be true, Som Krishan about 1 t or 2 years before Sumitra's murder in question, married her to Rama Nand. Before this marriage it was settled by Som Krishan with Shish Ram and Rama Nand accused that even after her marriage, Snmitra would continue to pursue further stu.dies and take up employment as a teacher.

After the marriage, her father got his daughter, Sumitra, employed as a teacher in Village Nursery School at Chanyana which was situated near her parents' village.

While teaching at Chnayana, she continued to reside with her parents. She used to visit village Jherwin occasionally to be in the society of her husband who. also used to come to Jherwin from Kasumpti. The accused persistently demanded that Sumitra should give up her employment at Chanyana, and start residing permanently and continuously in her matrimonial home at Jherwin.

Sumitra tenatiously refused to do so.

Rama Nand wrote several letters to Sumitra urging her to give up her adamant attitude.

These letters furnished evidence of a stron~ motive for Rama Nand to put an end to the life of Sumitra.

Rama Nand was employed as a Clerk in the Office of the Deputy Commissioner Kasumpti.

On May 12, 1972, he came to Jherwin from Kasumpti. He had earlier written to his wife, Sumitra, strongly H urging her to come to village Jherwin.

On May 13, 1972, Sumitra came to Rama Nand's house at Jherwin and stayed with him in his room on the night between 13th and 14th May, 1972.

The other

RAMA NANO v. H.P. (Sarkaria, !.) 447

rooms of the house were in occupation of the other members of Shish Ram"s family.

Thereafter, on May 14, 1972,. she disappeared from the house of the accused.

The accused gave. out that Sumitra had gone towards the Sutlej river on the pretext of attending to the call of nature; that thereafter her Salwar and shoes were found on the bank of the river, which indicated that she had jumped into the river and committed suicide.

After pretending to make a search for her body in the river and nearabout, Shish Ram on May 16, 1972, went to Police Station Karsog at 5.30 p.m. and lodged a report (Ex. PAQ). It was recorded by Head Constable Nand Lal.

After recording it in the Roznamacha, the Head Constable read it in the presence of one Inder Pal to the informant, who, after hearing the same. to be correct, signed it in Hindi and his companion lnder Lal signed it in English.

As this report, according to the prosecution, shows that an attempt was made by Shish Ram accused to lay a false trail and manufacture false clues as to the cause of the death of Sumitra and to screen the offence, it is necessary to reproduce the material parts of that report (rendered into English) , hereunder :

...... "my dauglxteI1-ilaw Smt.

Sumitra Devi aged about 18/19 years, was married about H years ago, to my son Rama Nand who is employed in the office of D.C.

Kasumpti as a clerk. Sumitra Devi herself was employed as a Mistress in Nursery School, Chanyana and was residing with her parents. Whenever my son used to come home on leave, she also used to visit her house at such time.

Similarly my son Rama Nand had come on leave to his house on 12-5-72 and in the evening of 13-5-72, my daughter-in-law, Smt. Sumitra Devi had also come to his house. As usual, because of Sunday holiday, in the morning on 14-5-72, myself, my daughter-in-law and other members of the family

were planting chiliy seedlings in the fields near our house.

My son (Rama Nand) was lying in bed on account of stomach trouble.

After plantation work, at about 9/10 a.m. my daughter-in-law, Smt. Sumitra Devi along with Sheela Devi aged about 7 years, who is daughter of my brother, had gone downward on the pretext of easing herself.

After some time, Sheela returned home and reported that she had been turned back from the way by her aunt. Sumitra Devi, who had gone ahead towards the river side. For some time it was believed that she might have gone to answer the call of nature.

The. river is about 2 furlongs from my ho\lse towards downside. When sufficient time passed and she did

not return home, then cails were given hither and thither and search was also started but her whereabouts could not be known.

After a thorough search on the Sutkj river bank, the Sa/war and shoes of Smt. Suntitra were found which Smt. Sumitra was wearing at the time of her going that side. This created a suspicion that she might have com.- milted suicide by jumping into the river.

She was searched at the river bank as also in the nearby villages ...... but her dead-body was not found, nor any clue of her going is available.

Smt. Sumitra was married in a good famify and her character was also good, her relations with her husband were cordial. No quarrel on that day or prior to that, took place between her and my son, nor is there any reason for lier disappearance.

I have come to report, which may be recorded.

After locating her alive or dead, separate report will be lodged."

Daulat Ram, Station Honse Offiror

(P.W. 38) then visited the scene of occurrence on May 13, 1972. He was not s:itisfied about t!ic correctness of the information given by Shish Ram', accused. He, therefore, got a case under Section 364; Penal Code, registered.

Shislr Ram accused produced bzforc him the Sa/war (Ex. P'l4) and shoes (Ex. P-15/12) which, according to Shish Ram's report, belonged to Sumitra deceased and were found lying on the river bank.

The investigator also prepared a rough sketch of the. spot where these clothes and shoes were stated to have been found.

l' Som Krishan upon receiving the information, suspected that her daughter had been murdered at the iustance of Rama Nand and others.

Som Krishan reached the spot and made enquiries.

Rama Nand and Shish Ram accused were arrested by the Investigating Officer on June 5, 1972. The Investigating Officer took into possession the Locket-chain (Ex. P-1) and the watch (Ex. P-2) belonging G to the deceased from the room which was in the occupation of Rama Nand, in the presence of Kanshi Ram and Hira Mani and prepared the Memo (Ex. P-A) in this behalf.

Rama Nand accused, whilst in polic-.: custody, produced Sumitra's clothes (Ex. P-5 to Ex. P-10) which were taken into possession by the Investigator in the presence of Mastu and Hari Ram, witnesses (vide Ex. P-Y).

These clothes, 11 according to the prosecution, were the same which Sumitra was wearing when sl1e arrived at the house of Rama Nand accused on May 13, 1972.

RA'l1A NAND v. H.P. (Sarkaria, J.) 449

On June 5, 1972, a legless and armless dead-body in a highly tkcomposed state was found at a distance of four kilometres downslrcam on the bank of the river Sutlej near village Randaul.

Kali Datt appellant was found near tlrat skeleton in the early hours or June S, 1972.

He dragged the skeleton from the river upto some distance.

It appeared that Jogs clc. had eaten away the flesh.

A p.1rl of the skull was found in tact, while the remaining part of it was lying at some distance.

On receiving information, Som Krishan (P.W. 33) and bis brother's wife, Laxmi (P.W. 2), came and identified the skeleton to be' that of Sumitra. There was some flesh on the buttock portion and there was a mark on it.

According to these -f identifying witnesses, this mark was that of a burn which Sumitra bad received during her infancy.

One of the teeth found in the mandible was carious, while another tooth was jutting out.

Daulat Ram got the dead-body measured from shoulder to the cut portion of the thics by Mchar Chand.

The measurement came to 2'-4".

Daulat Ram prepared the inquest report (Ex. P /F) which was attested by Kundan wilncss.

He sent the dead-body a.long with the inquest report (Ex. PF) to Simla for post-mortem examination. The deadhody reached the Hospital at 1 p.m. on June 7, 1972. There, they directed the police to take the dead-body lo Ripon Hospital.

Consequently, at 2 p.m., the dead-body was made over to the Duty Doctor at the Ripon Hospital.

The post-mortem examination was conduct.ed by Dr. J. R. Sharma (P.W. 14) on the following day.

The post mortem report was handed over to the police by the Doctor on June 21, 1972. A few components of the skeleton, including the mandible, were sent to the Dental Surgeon, Dr. R. S. Patbania (P.W. 15) and Radiologist, Dr. M. L. Ahuja (P.W. 16) for examination and opinion.

These Doctors, however, opined that the mandible belonged to a child of not more than 10 years of age.

The components of the _ skeleton were, also, sent to Dr. 0. P. Bhargava (P.W. 31), Professor J' of Anatomy in the Medical College of Simila. His opinion about the ' age of the deceased was also the same. The Doctors could not determine the sex of the skeleton.

On August 24, 1972, a Paranda (cotton headtail), alleged to be G

of Sumitra deceased was recovered from the jungle of Ghangar.

Some human hair were found entangled in the Paranda.

These hair were sent for comparison with the hair of the deceased found embedd•:d in her Dupal/a.

The forensic expert opined that the two sets of hair belonged to one and the same person.

After investigation, the four accused, namely, Rama Nand, .his H father Shish Ram, his brother Kali Datt and Shish Ram's brother Kesar Chand, were sent up befor~ a Magistrate who committed them

for trial to the Court of Session.

At the trial, j)1 his examination under Section 342, Rama Nand admitted that after her marriage, Sumitra got employment as a teacher.

He, however, denied the prosecution allegation that he and his father were opposed to her employment as a teacher. He expressed ignorance as to whether there was any settlement between his father, Shish Ram, and Som Krishan Shastri, father of Sumitra that she would continue her studies even after the marriage and would be free to take up service as her career.

He added that his matrimonial alliance with Sumitra was not negotiated alld settled in his presence.

He admitted that the letters dated December 13, 1971, December 16, 1971 and May 9, 1972 (the English rendering of which is marked Ex. PAH, Ex. P AB, and Ex. PC, respectively) were written by him to Sumitra, and that the letter (Ex. PAJ) dated October 14, 1971, was written by him to his fatherin-law. Som Krishan Shastri (P.W. 33). He further admitted that on May 13, 1972, Sumitra came to his house In village Jherwin from her parents' place, and that she was then wearing the golden chain (Ex.

P-1), wrist watch (Ex. P-2), Dupatta (Ex. P-5), suit (Ex. P-6 and Ex.

P-7), socks (Ex.P-8 and 9), banian (Ex.P-10) and was carrying the basket (Ex. P-11) and umbrella (Ex. P-12).

He, however, added that when she (Sumitra) reached home on May 13, 1972 with the articles mentioned above, she was wearing pink ribbon on her head and not any threadbunch like Ex.P-4.

Question No. 9 put to him was: "It is in prosecution evidence that on May 14, 1972 Sumitra was not seen at your house or in the village at Jherwin at all or thereafter.

What have you to say?" He replied: "On 14-5-72 morning at about, say upto 11 a.m., she was working in the field at Jherwin and thereafter she was not seen there and later on I was arrested and so I cannot say about her whereabouts." He admitted that his father Shish Ram had lodged the report (Ex. PAQ) in the Police Station, Karsog.

When the circumstance appearing in the prosecution evidence, "that after the occurrence on May 16, 1972, he (Rama Nand) went away to Simla from Jherwin and returned home three or four days thereafter" was put to Ramanand, he replied: "It is wrong. I went to Simla on 17-5-72 evening and returned on 19th morning". He denied that he and his father implored Som Krishan Shastri that he should save them from the police at Jherwin.

When .the negative circumstance appearing in evidence, to the effect that the Sa/war (Ex. P-14) was not of Sumitra, was put to him, he asserted that the Salwar (Ex. P-14) was that of Sumitra; and that bis father had shown the Salwar (Ex. P-14) indicating that bis daughter-in-Jaw, Sumitra had gone in the river when the (Rama'nand) was weeping. In reply to the last question, Rama N and narrated more or less the same story which was given by them (accused) to

- "

RAMA NAND v. H.P. (Sarkaria, !.) 451

the police in the Report, PA Q.

Among other things, he stated : "It A was found on the river side that her Salwar (Ex. P-14) and shoes (Ex. P-15) were lying by the river bank giving indication that she had jumped into the river. Then we were in mourning and the villagers also verified that Sumitra was seen going to the river".

Shish Ram accused admitted that Sumitra had come to their house at Jherwin on May 13, 1972 and had disappeared on May 14, 1972.

He admitted having lodged the report (Ex. PAQ) in th" Police Station, Karsog. He admitted that he had produced the Salwar (Ex.P-14) and shoes (Ex. P-15) before the police during investigation. He also maintained that the Salwar (Ex. P-14) belonged to Sumitra. He denied that he and his co-accused were threatening to teach Sumitra and her father the lesson of life for keeping Smnitra employed against their wishes at Chanayana.

He_ repeated the substance of the story which he had earlier stated in the report (Ex. PAQ), and reiterated that since Sumitra's Salwar and shoes were found on the river bank, she had either jumped into the river or run away somewhere.

The learned Additional Sessions Judge by his judgment, dated December 1, 1973, convicted Rama Nand under Section 302, Penal

Code, and sentenced him to rigorous imprisonment for life. He further convicted Kali Datt and Shish Ram accused under Section 201,

Penal Code, and sentenced each of them to one year's rigorous imprisonment and a fiue of Rs, 500/-. Keshar Chand accused was given E the benefit of doubt and acquitted.

The appeal by the convicted persons was dismissed by the High Court as per its judgment, dated June 7, 1974. Hence this appeal by special leave. The conviction of the appellants is based entirely on circumstantial evidence.

In convicting Rama Nand, appellant under Section 302, Penal F :i"' Code, for the murder of his wife, Sumitra, the courts below have con- , currently relied upon these circumstances which, according to them, had been established by the prosecution.

(1) Rama Nand accused had a strong moth'l: to murder his wife, • Sumitra.

(2) Sumitra was last seen alive with Rama Nand, appellant in the family house at Jherwin on the night between 13th and 14th May,

1972. The other two co-accused were also present in the same house.

(3) (a) Rama Nand .and the other co-accused falsely gave out that she bad committed suicide by jumping into the river.

They .H 'planted' a Salwar and a pair of shoes on the 'bank of the Sutlej and gave out that they belonged to the deceased, artd Shish Ram lodged

a false report with the police to the effect that she had committed suicide by jumping into the river. The Salwar and the shoes, which had been 'planted' there to manufacture false clues by the accused, did not belong to Sumitra, and the accused have falsely asserted that these articles belong to the deceased.

( b) The story given out by the accused persons that upto 11 a.m. on May 14, 1972, Sumitra was planting chillies along with Sheela and other members of the family of the accused, was false.

(4) The gold chain (Ex. P-1) and the watch (Ex. P-2) which Sumitra used to wear on her person all the 24 hours, and the clothes (Ex. P-5 to P-10) which she had on her person and the basket -~"' (Ex. P-11) and umbrella (Ex. P-12) which she was carrying when on the evening of May 13, 1972 she came to the house of the accused at Jherwin,. were recovered from the house of the accused.

(5) Some days after the occurrence, one Paranda was found from the jungle near this village. There was a bunch of hair in the plaited tail of this Paranda. The tail appeared to have been cut. These hair sticking in the Paranda and those found entangled in _the Dupatta of the dceascd were according to the Forensic Expert of one and the same person.

( 6) A legless decomposed corpse . was recovered from the Sutlej E near village Randol in a mutilated condition. From a burnt mark on the flesh stickinf, l to the buttock of the corpse it was identified as that of Sumitra, deceased.

TI1e High Oiurt further held that even if any doubt remained with regard to the identity or recovery of the corpus delicti, the telling F circumstances otherwise complete the chain of evidence to establish beyond doubt that Sumitra had been murdered and the charges had been established against the accused as held by the trial court. In the - result it dismissed the appeal of the accused respondents.

Shri Hardayal Hardy, learned counsel appearing for the appellants contents that these circumstances have not been satisfactorily •

G established. He has placed great emphasis on the evidence of the medical experts, according to which the mutilated corpse found at Randol was that of a child, aged about 8 or 9 years. It is submitted that the dead-body found was not that of Sumitra deceased. and as a result, the courts below were not justified in holding that the death of H Su.mitra had been established by the prosecution.

On the other band, the learned counsel for the State has argued in support of the judgment of the High Court.

---~-~ ..

RAMA NAND v. H.P. (Sarkaria, !.) 453

It ig well seUJed that where the inference of guilt of an accuse" person is to be drawn from circumstantial evidence only, those circumtances must, in the first place, be cogently established. Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused and none else.

The first circumstance which has been found to be established by the courts below against the appellant is that he had "a very strong motive" to commit the murder of Sumitra. To substantiate this fact,

~--rhe prosecution produced four letters written by Rama Nand appellant.

There arc: Ex. PAJ, Ex. PAH. Ex. PAB/1 and Ex. PC.

The accused also tendered in evidence the letter (Ex. DA) dated November 14, 1971 written by Som Krishan to Sumitra.

As already mentioned, Rama Nand accused has admiltcd that the letters (Ex. PAJ, PAR, PAB/l and P.C.) were written by him. Ex.

P AJ purports to have been written by him from village Jherwin on D October 14, 1971. In this Jetter, Rama Nand very clearly informed his father-in-law that his father Shish Ram was not in favour of Sumitra taldng up service and residing away from the accused's house at Jherwin. In this Jetter, Rama Nand urged his father-in-law that the latter should either come !o Jherwin along with Sumitra or send her

:ilone. This letter also indicates that Sumitra was persisting in takbg E

up &ervice elsewhere against the wishes of the accused persons.

Chronologically, the next letter is Ex. DA dated November 14,

1971. It is addressed by Som Krishan to his daughter, Sumitra.

Tn this Jetter, the father informs the daughh:r that he had obtained her appointment Jctter and she would be required to join by the 17th to start the Nursing School at Balwari. He wanted her to come to his (house to take up the appointment. In this letter, he also wishes her daughter to convey to Rama Nand appellant and his brother, Kesar Chand (acquitted accused) that tl1ey should agree to Sumitra's taking up this employment and that they should further bring round Shish Ram by reminding him that they liad earlier consented to her taking

11p Service. This letter further indicates that Sumitra was much distressed because of the hostile attitude adopted by her in-laws towards her. To console her, the father wrote : "Don't worry. Whatever God does is good. Have self-confidence and do not repent on any failure".

8. The third Jetter, datoo December 13, 1971, (Ex. PAH), written .by Rama Naud to Sumitra, shows tl1at the opposition of the appellant,

13-57 SCI/81

his father Shish Ram and brothers to Sumitra's taking up service away from the matrimonial home, had passed from the serious to the sardonic stage. It starts with the words : "Wish you happy luxury!" Read in accord with the tenor of the letter, it conveys a biting ironical taunt. These words were capable of being construed as conveying an innuendo that she was merry-making de-hors the matrimonial home in an extra-marital way. May be, the appellant was doubting her fidelity.

He informs her that he had visited Jherwin in the hope toot be would join her there, but this hope did not materialise. He complains against this attitude of neglect on the part of his wife when

he says : "Today you have not seen to my condition, and have defamed me. To whom should I blame? It is the wind and to whicl!~ side it blows it must do something. I was thinking to save (you) from

this wind." He further reproaches a\1d upbraids her : "You did not think owr it seriously and you did not care for it nor others. You have taken it as a prestige issue. I cannot do anything so long I am not heartily happy and I weep to my fate." He then warns her in a contemptuous and peremptory tone : "It would be better that you should resign your job now and come down here ... If you intend to reside with me, then you should agree to my words .... otherwise it will be a dog's life. You should either come to this place or to village Jherwin after resigning the job and from there you may come to Simla on any day. As you know, a friend in need is a friend in-deed.

When this is lost, one cannot take the shelter of others." He reminds her that her marriage had been solemnised with him. "To do serJice entirely depends upon you and me and not upon (your) father ...

It is tin1e to resign the Service ... " He repeats : "It is against the respect of my family, yourself and myself that I should allow you to serve at a monthly pay of Rs. 120/- and only for a tenure of six F months and myself to stay at Simla in the Hotel." He then in stronger language demanded her to resign her job within 24 hours and coine to his house direct wit?out waitig for her resiation to be ccepted.:"\ He closes the letter with an ommous threat veiled as a warmng : "If ·

you do not resign the job, onr relations will become strained."

In the next letter (Ex. PC), dated December 16, 1971, Rama Nand wrote to Sumitra that he did not understand why she did not 'improve his (?) life' and why she was acting at the beck and call of others. He urged her that it would be better to 'live for a more'.

He added : "You obey me or not, you yourself will understand the significance of this when you give place to it in your mind". He sternly repeated the warning : "I once again request you to keep in mind your as also my honour, what you have to do, as the time has come.

There is no example in the history of world that. a girl after marriage

RAMA NANO v. H.P. (Sarkaria, J.) 455

should act on the advice of her father, which may be harmful." He again urged her : "Do not think this letter as a, mere piece of paper, but each and every line in it will decide our future career ...... you should resign your post." He again administered a warning, coupled w.i!h a threat of resorting to violence in case she did not resign her job to live with the accused permanently : "The present is the condition of China's wall as Lt. General Mr. Kaul was saying that on China Border there is no firing, no firing, no firing. But what was the

result in the end, you know betler . . . . . . . . . If you honour me, 'your husband, then you should tender your resignation from the job

ferthwith". He further sternly warned her : "If you still do not come round, what would happen in future, will entirely be your responsibility and I may not be blamed for that". He ended the Jetter with a hostile note, repeating the threat : "I may write, what will happen in future, Entire responsibility of future solely depends upon you. It is the question of life and not of service . . . . . . This is time of your test. Reply this letter." The sentence, 'It is the question of life and not of service' read in the context, clearly conveys to !he wife a threat that the choice open to her was between 'life' and 'service', that is to say, she would not be left alive if she did not give up the 'service'. This

letter unmistakably reveals that Rama Nand had worked his feelings at his wife's persistent refusal to give up service and live with him, into

such a frenzied resolve that if his wife did not, as he desired, 'mend' her ways, he would 'end' her life.

Even after this Jetter, there appears to have been no alleviation or change in this revengeful attitude of the husband towards his wife.

This is discernible from Rama Nand's last letter dated May 9, 1972

(Ex, PAB) addressed to Sumitra.

In this letter also, he cannot conceal his feeling of being "sick of you". He writes, ". . . . . . the difference in views can make life troubleful or as well can '1ead towards F downfall as I already told you'', that "to deceive any true person can ;*- only be a sin and nothing else". He appears to be giving her a last warning, a last chance to come round and come home when he

writes that "time is short I will again request you that if you try to come home on Saturday, it will be good .... I do not feel good. . . . you definitely try to come, if you cannot come on Saturday then come on Sunday, otherwise .... "

, , ' These letters vividly reveal that despite the repeated persuasions, Warnings and threats proceeding from Rama Nand ccused, Sumitra intransigently and persistently refused to give up hi:r service , at G!anyana, and reside_nce with her parents, _and declined .to come and

live permanently iu .the matrimonial home at Jherwin:, and a& a result, how the husband's.feelings of tender11es.s towards his wife progressively

.~· .

456 SUPREME COUllT REPORTS

[1981) 2 S.<.K.

changing into regret, persecution complex, resentment, exasperation and smouldering hostility, ultimately hardened into a revengeful resolve in the mind of Rama Nand lo end what Ire calls "a dog's life" by putting an end to the life of his spouse, We agree with tJae High O>urt that these letters reveal that Rama Nand appellant had a strong motive to murder the deceased.

The second circumstauce was also well established. lt had been admitted even by the appellant and his co-accused. The courts below have found, aud rightly so, that both the limbs of circumstance No. (3) had also been established by evidence produced by 1he prosecution. Som Krishan (P.W. 33), father of Surnitra, had testified that when he went to Jhcrwin on receiving a message from the accused about the disappearauce of his daughter, he was shown the Salwar (Ex. P-14) and shoes (Ex. P-15/1-2) and told that these clothes were left behind on the bank of lhe Sutlej river when she disappeared.

P.W. 33 further stated that this shabby Salwar (Ex. P-14) which had patches on it, did not belong to Snmitra and she never wore such a Salwar; nor did the pair of shoes (Ex. P-15) belong to lrer. P.W. 33 further testified : "Then Rama N and, Shish Ram and Kesar Chand accused implored me that they may be saved from police remand.

To this I said that I was not conversant with law but you may tell the truth". This testimony of P.W. 33 has been accepted by lhc courts below. We have no reason to take a different view.

. As rightly held by tire courts below Sumitra was a sophisticated and educated girl. It was difficult lo believe that she would do chi.Ry plantation and wear such a patched and dirty Salwar as Ex. P-14.

The very story given out by the accused persons and narrated ii:' Shish Ram in the report (Ex. PAQ) made by him to the Police, and repeated by him and Rama Nand in their examination under Section

342, Cr. P.C., to effect-that Sumitra had after undressing aad ·· ""': leaving behind her shoes (Ex. P-15) and Salwar (Ex. P-14) on t&e bank of the Sutlej, committed suicide by jumping into the river-was improbable, incredible and false. Thus, circumstance 3(a) and (b) G had also been clearly aud cogently established. This piece of evidence was relevant under Section 8, Evidence Act and was a definite pointer towards the guilt of the accused. Circumstauce ( 4) appearing in the prosecution evidence, was admitted by the accused persons. Circnm- stauce (5) also stood established. Though a feeble pointer towards the guilt of the accused, by itself it was not of a conclusive character. n Circumstance ( 6) has been seriously controverted. The burden of the arguments of the learned counsel for the appellauts is that the prosecution had miserably failed to establish that the legless decomposed

:.. '

RAMA NAND v. H.P. (Sarkaria, /.) 457

body found in the river was that of Smt. Sumitra, and in such a A situation, the possibility of her being alive cannot be reasonably ruled out.

Although the High Court has held that the body recovered was that of Sumitra deceased and that the bones sent to the medicdl experts were not parts of the decomposed body found, but appeared to have been fraudulently replaced with the bones of a child during transmission to the medical experts, we would assume that the identity of the body found in the river was not established beyond reasonable doubt. In other words, we would take it that the corpus delicti, i.e., the dead-body of the victim was not found in this case. But even on that assumption, the question remains whether the other circumstances established on record wer9 sufficient to lead to the conclusion that Within all human probability, she had been murdered by Rama Nand appellant? It is true that one of the essential ingredients of the offence

of culpable homicide required to be proved by the prosecution is that the accused "caused the death" of the person alleged to have been killed.

This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been caused. Ordinarily, the recovery of the dead-body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim. There was a time when under the old English Law,. the finding of the body of the deceased was held to be essential before a person was convicted of committing his culpable homicide. "I would never convict", said Sir Mathew Hale, "a per.; on of murder or manslaughter unless the fact were proved to be done, or at least th" body was found dead". This was merely a rule of

caution, and not of law. But in those times when execution was the only punishment for murder, !he need for adhering to this cautionary rule was greater, Discovery of the dead-body of the victim bearing

ysical evidence of violence, has neve~ been considered as the only mode of proving the corpus delicti in murder.

Indeed. very many cases are of such a nature where the discovery of the dead-body is

impo5siblc. A blind adherence to this old "body" doctrine would open the door wide open for many a heinous murderer to escape with impunity simply becal!Se they w&e cunning and clever enough to destroy the body of their victim. In the context of our law, Hale's enunciation has to be interpreted no more than emphasising that where the dead-body of the victim in a murder case is not found, other cogent and satisfactory proof of homicidal death of the victim must bo adduced by the prosecution.

Such proof may be by the direct ocular

al:colint of an eye-witness, or by circumsl!Jntial evidence, or by bot.h.

But where the fact of corpus delicti, i.e. ·micidal death' is sought: to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to

the inference that the victim concerned has met a homicidal . death.

E; ye)i so, this principle of caution cannot be pushed too far s requiring absolute proof .. Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth. That is why under Section

:>, Evidence Act, l>fact is said to be "proved", if the Court considering the matters before it, considers its existence so probable that a -.4; prudent man ought, under the circumstances of the particular. case, to. act µpan the supposition that it exists. The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by tJie

accused concerned .. In the instant case, Circumstances (I) to . (5), in their cumulative effect, are not only inconsistent with the innocenc.e of Rama Nand appellant, but ineluctably and rationally compel th~ conclusion that Sumitra has died and it is Rama Nand appellant who has intentionally caused her death. Circumstance (3) involves an admission by Rama Nand and Shlsh Ram accused that Sumitra has inet an unnatural death. The only difference between the prosecution version and the defence version is as to whether Sumitra committed suicide or had been killed by Rania Nand appellant. It has been found that the story of the suicide set up by the accused is fal>c. The ar\icl~~ Salwar (Ex. P.14) and the shoes (Ex. P-15) do not belong to he.,

They were planted by the accused to lay a false trail and to mis-direct the investigation. This circumstance taken in conjunction with the others, irresistibly and rationally leads to the conclusion that she liru; b, een murdered by Rama Nand appellant and her dead body has been - ""'

disposed of by the appellants Shish Ram and Kali Datt

For the foregoing reasons, we dismiss this appeal and maintain ihe convictions and sentences of the appellants.

SJl.

Appeal d~<misseef.

, '.;;

'.--;

RAMA NAND AND ORS

STATE OF HIMACHAL PRADESH

January 6, 1981

R. S. SARKARIA

R. S. PATHAK

Rama Naud

Sumitra

Sumitra \Vas

Rama

Nand

Jherwin

13th and 14th May, 1972

Rama Nand

Shish Ram

May 14, 1972

Sheela

\Vhich Sumitra

May 13, 1972

Jhen.vin,

Paranda

Randol

Mathew Hale

Haolc

Section 3

P. P. Juneja

flardya/ Hardy and P. P. Juneja for the Appellants .

Badri Das Sharma

Badri Das Sharma and Miss A. Subhashini for the Respondent.

A. Subhashini

SARKARIA

High Cour~ of Himaehal Pradesh

Section 302

Penal Code

Sbish Ram

Kali Datt

Section 201

Penal Code

Sumitra

Som Krishan

Rama Nand

Shish Ram

Kali Datt

Shish Rama

Som Krishan

Kasumpti

Snmitra

Chanyana

Chnayana

May 12, 1972

On May 12, 1972, he came to Jherwin from Kasumpti.

Shish Ram"s

May 16, 1972

Police Station Karsog

Nand Lal

It was recorded by Head Constable Nand Lal.

Inder Pal

lnder Lal

Sumitra Devi

Sheela Devi

Suntitra

Daulat Ram

Section 364

Penal Code

Shislr Ram

Shislr Ram accused produced bzforc him the Sa/war (Ex.

June 5, 1972

Kanshi Ram

Hira Mani

Mastu

Hari Ram

Randaul

Kali Datt appellant

Laxmi

Daulat Ram

Mchar Chand

Kundan

P /F) which was attested by Kundan wilncss.

Simla

PF) to Simla for post-mortem examination.

June 7, 1972

The deadhody reached the Hospital at 1 p.m. on June 7, 1972.

Ripon Hospital

J. R. Sharma

June 21, 1972

R. S. Patbania

M. L. Ahuja

P. Bhargava

Medical College of Simila

August 24, 1972

Kesar Chand

Section 342

Som Krishan Shastri

December 13, 1971

December 16, 1971

May 9, 1972

October 14, 1971

Som Krishan Shastri

Police Station, Karsog

Simla

Ramanand

I went to Simla on 17-5-72 evening and returned on 19th morning".

Rama'nand

Rama N

In reply to the last question, Rama N and narrated more or less the same story which was given by them (accused) to
"

RAMA NAND v. H.P. (Sarkaria, !.)

Smnitra

Chanayana

December 1, 1973

Section 302

Section 201

Penal Code

Keshar Chand

Keshar Chand accused was given E the benefit of doubt and acquitted.

June 7, 1974

Section 302

Hardayal Hardy

H Su.mitra

November 14, 1971

DA) dated November 14, 1971 written by Som Krishan to Sumitra.

November 14,

1971

Balwari

Rama Nand appellant

Jherwin

Kaul

China

Surnitra

Jhcrwin

Section

342

Section 8

Hale

Shlsh Ram

Rania Nand

Shish Ram

Kali Datt


KAMLA KANAHlYALAL KHUSHALANI

STATE OF MAHARASHTRA AND ANR.

January 6, 1981

[S, MURTAZA FAZAL ALI AND A. VARADARAJAN, JJ.]

Conservation of Foreign Exchange and Prevention of S1nuggling Activities Act, 1974-Scction 3(3)-Failure to 1upply docu11if!1t/s and rnatcrials to the d1.:ft'11u-Efiect of-"cffective representation"-Meani11g of.

In a petition under Art. 32 of the Constitution the petitioner detenu com

-plained that though the grounds of detention were served on the dctenu on the C date of arrest (October 20, 1980) the materials and documents on which the order of detention was based were not supplied to him till November 5, 1980 and that his representation dated November 18, 1980 was disposed of nearly a month later (December 15, 1980) and that the failure on the part of the detaining authority to supply the requisite documents and materials and the unexplained delay in the disposal of the representation constituted violation of the safeguards contained in Art, 22(5) of the Constitntion which vitiated the D .order of detention.

Allowing the petition,

HELD': I~ is well settled that the law of preventive detention has to <atisfy a two-fold test : ( 1) that the protection and the guarantee afforded under Art. 22(5) of the Constitution are complied with, and (2) that the procedure ifl just and reasonable. (4630] E

Before an "effective representation" could be made by the detenu he must be supplied with the documents and materials which form the basis of the grounds of detention and unless this is done there could be no question of

making any representation, much less an "effective representation" against the order of detention.

The documents and materials relied upon in the order ,,-- of detention form an integral part of the grounds and must besupplied to the ."' detenu pari passu the grounds of detention. [461B]

Smt. lcc/zu Devi Clzoraria v.

Union of India & Ors. (1980] 4 SCC 531 and Srnt. Slwlini Soni & Ors. v.

Union of India & Ors. [1980] 4 SCC 544 referred to.

If procedure under Art. 21 has to be reasonable, fair and just, then the

words 'effective representation' appearing in Art. 22(5) must be construed so G aa to provide a real and meaningful opportunity to the detenu to explain his case to the detaining authority in his representation. If the words 'effective representation' are interpreted in an artificial or fanciful manner, then it would defeat the very object not only of Art. 22(5) but also of Art. 21 of the Constitution. It is settled law that it is of the utmost importance that all the neceasary safeguards laid down by the Constitntion under Art. 21 or Art. 22(5) should be complied with fully and strictly and any departure from any of the H <afeguards would vitiate the order of detention. [463E-F]

Maneka Gandhi v. Union of India [1978] 2 SCR 621 referred to.

In tho intant caso not only were the documents and materials not supplied to the detenu alongwith the order of detention but there ha4 been an un, explain ed delay of about 25 days ill disposing of tho repre.entatlon of tho detenu.

'[4658)

[Despite repeated warnings by this Court the detaining authorities do not care to comply with tho spirit and tenor of the safeguards contained in Art, 22(5) of tho Constitution. There should be no difficulty in keeping copies of tho documents and materials referred to in tho order of detention and supplying them to tho detenu along with tho order of detention. This dereliction on the part of the detaining authorities results in the relea')e of persons indulgi11g in such antinational activities as smuggling though on merits the deto.tions in suitable cases may bo justified.]

ORIGINAL JURISDICTION : Writ Petition No. 5873 of 19.80.

(Under Article 32 of the Constitution.) Ram Jethmalani and Miss Rani Jethmalani for the Petitioner.

O. P. Rana and M. N. Shroff for the Respondents.

The Judgment of the Court was delivered by

FAZAL ALI, J.-This petition has been filed by the sister of the detcnu praying that the detenu be released because the safeguards pro vidcd by tl:!e constitution hav~ not been complied with.

The detcnuwas arrested on 20-10-1980 when only the grounds of detention were served on him.

On 5-11-1980 the documents and materials on the basis of which the order of detention was passed were supplied to the detenu. On the 18th November 1980, the detenu made a representation to the Government which was disposed of as late as the 15th December 19.80.

In support of the petition, Mr. Jethmalani has sub mitted two points on which alone, in our opinion, the petition must . succeed.

In the first place, it was pointed out that, as already held by this Court the grounds served on the petitioner "'.ere not 11ccompanicd by the documents and materials which formed the basis of the order of detention, hencethe safeguards contained in Art. 22(5) of the Constitution not having been complied with, the continued detention of the detcnu became void. Secondly, it was argued that even though the detenu had m11de a represeptation on 18-11-1980, the same was disposed of a month thereafter and no explanation for this delay has been furnished by the respondents.

This Court has held in numerous cases that the representations of the detenu should b~ disposed of as soon as possible and even an unexplained del'ay of 12 to 14 days has been heW to be fatal to the order of detention.

Reliance has been placed

by Mr. Jethmalani on two decisions of this Court in Smt. lcchu Devi Choraria v. Union of India & Ors.(I) which was later followed in Smt.

Shali11i Soni &. Ors. v. Union of India & Ors.('). As regards the tirst case, which is a decision of two Judges of this Court. it has clearly held that before an effective representation can be made by the detenu. he must be supplied with the documents and materials which formed the basis of the grounds of detention.

Unless this is done, there could be no question of making any representation, much less an effective representation, against the order of detention.

In this connection, Bhagwati J., speaking for the Court observed as follows :-

"Now it is obvious that when clause (5) of Article 22 and sub-section (3) of section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu. If there are ny documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detcnu, because being incorporated in the grounds of detention, they form part of the grounds >and the grounds furnished to the detenu cannot _be said to be coqiplete without them. It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the groUJ)ds of detention must also be furnished to the dctenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause ( 5) of Article 22 and Section 3, sub-section

(3) of the COFEPOSA Act.

One of the primary objects of communicating the grounds of detention to the detenu is to enable the dctenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representatioi:i unless he is also furnished copies of the documents, statements and other nraterials relied upon in the grounds of detention. There can t}Jereforc be no doubt that on a proper construction of clause ( 5) of Anick 22 read with Section 3, sub-section (3) _of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) o[ Article 22 copies of the

(I) [1980J 4 sec 531 [19s111 scR64o

(2) [I 930J 4 sec 544

_ __,_ "~,,--.-~

--·,,-~......, ,,... . ,,, -.--·-··

A documents, statements and other materials relied upon in the

 grounds of detention shoul.d be furnished to the detenu along with the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorde<) in writing, not later than fifteen days from the date of deteution. If this requirement of clause (5) of Article 22 read with Section 3, sub-section (3) is not satisfied, the continued detention of the detenu would be illegal and void."

Mr. Rana for the St•ate has submitted that the observations extracted above do not form the ratio of the decision because in a subsqaent para of the decision, Bhagwati, J. had observed that at the most grounds could be given within a period of five to fifteen days of the order of detention.

These observations, no doubt, are conained in parngraph> 7 and 8 of the judgment but they do not, in our opiuion, form the ratio decidendi of this case but were made merely to rebut the extreme arguments that could be put forward.

This Court made it very clear that even apart from the interpretation placed by the Court on Art. 22(5) of the Constitution, the conclusion is inescavable that the documents and statements which formed the basis of the grounds of detention must be supplied to the detenu without least possible delay.

It is in this context that these observations were made in paragraphs 7 and 8.

Moreover, this position has been made absolutely clear by a letcr dedsion of this Court in Smt. Shalini Soni's case (supra) where a Division Bench of this Court while endorsing Smt. Tcchu Devi's case observed as follows :-

"The matter may aJso be looked at from the point nf view of the second facet of Article 22(5).

An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him.

It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact.

If the detenn is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility.

Whatever angle from which the question is looked at, it is clear that 'grounds' in Article 22(5) do not mean mere factual inferences but me-an factual inferences plus factual material which led to such factual inferences.

The grounds must be self -sufficient and selfcxplanatory.

In our view copies of documents to which

. reference is made in the 'grounds' must be supplied to the A 'cletenu as part of the 'grounds'." . :·· .

The Court, therefore, clearly held that the documents and materials relied. ll'pOn in the order of detention formed an integral part of the grounds and nrnst be supplied to the detenu pari passu tbc grounds of defention. If the documents and materials are supplied later, then the detenu is deprived of an opportunity of making an effective representation against the order of detention. In this case, the court relied

upon the ratio in _lcchu i/)evi Choraria's case (supra) extracted above.

We find ourselves in complete agreement with the view expressed by the- 'two decisions of this Court and we are unable to accede to the prayer of Mr. Rana for sending !he case for reconsideration to a larger Bench.

This Court has invariably laid down that before an order of detention can be supported, the constitutional safeguards must be strictly observed. ·

This Court in Maneka Gandhi v. Union of India (') has widened the horizon of Art. 21 and added new dimensions to various features of Md. concept of liberty enshrined in Art. 21.

In view of the decision in the aforesaid case, Art. 22(5) of the Constituticn assumes a new complexion and has to be construed liberally and meaningfully so as to permit the legislature to impose the minimum possible curbs on the precious rights of a citizen, by virtue of preventive detention. If a procedure under Art. 21 has to be reasonable, fair and just, then the words 'effective representation' appearing in Art. 22(5) must be construed so as to provide a real and meaningful opportunity to detenu to explain his case to the detaining authority in his representation. If the words 'effective representation' are interpreted in an: artificial or fanciful r manner, then it would defeat the very object not only of Art. 22(5) but also of Art. 21 of the Constitution.

'Ilrus, we are of the opinion that in view of \\hat has been laid down in Mankea Gandhi's case (supra) and in a number of other cases following the aforesaid decision, the law of preventive detention has now :to satisfy a twofold test : ( 1) that the protection and the guarantee afforded under Art. 22(5) is complied with, and (2) that the procedure is just:and reasonable.

In this view of the matter unless the materials and documents relied on in the order of detention are supplied to the detenu alongwith the grounds, the supply of grounds simpliciter would give him not a real but merely an illusory opportunity to make a reprcentation to the detaining authority.·

(I) [1978] 2 SCR 621

It is well settled that the Court frowns on preventive detention without 'trial because the detenu is deprived of the right of proving his innocence in 'a trial by a court of law. It is, therefore, of the utmost importance that all the necessary safeguards laid down by the Constitution under Art. 21 or Art. 22(5) should be complied with fully ruid strictly and any departure from any of !Jle safeguards would void the order of detention.

This is so be<:ausc in a civilised society, like ours, liberty of a citizen is 'a highly precious right and a prized possession and has to be protected unless it be<:omes absolutely essential to detain a person in order to prevent him from indulging in ar.ti-national activities like smuggling, etc. We are fortified in' our view b; r a de.:ision of this Court in SampaJ Prakash v. State of !ammu & Kashmir(') where the following observations were made :

"that the restrictions placed on a person preventively detained must, consistently with the effectivenese of <1etention, be minimal."

It is a matter of great concern and deep dismay that despite re-· peatcd warnings by this Court, the detaining authorities do no.t care to comply with the spirit and tenor of the constitutional safegir.irds contained in Art. 22 ( 5) of the Constitution. It is manifest that when the detaining authopty applies its mind to the documents and materials which form the basis of the detention, the same are indeed placed before it and there could be no difficulty in getting photostat copies of the documents and materials, referred to in the order of detention, prepared and attaching the same alongwith the grounds of detention, it the detaining authority is really serious in passing a valid order of detention.

Unfortunately, the constitutional safeguards are nAlt com" plied with, resulting in the orders of detention being set aside by the Court, even though on merits they might have been justified iri suitable cases. We feel that it is high time that the Government should impress on the detaining authority the desirability of complying with the constitutional safeguards as adumbrated by the principles laid down in

this regard.

We would like to suggest that whenever a detention is struck down by the High Court or the Supreme Court, the detainilig authority or the officers concerned who are associated with the prep:tration of the grounds of detention, must be held personally responsible and action should be taken against them for not complying with the constitutional requirements and safeguards (viz. delay in disposing of the representation, not supplying the documents and .materials relied upon in _the order of detention pari passu the order of detention, etc. etc.) or, at any rate, an explanation from the authorities concern-

(!) [1969] 3 SCR 574

~· ....

":d must be called for by the Central Government so that in future persons against whom serious acts of smuggling are alleged, do not

o scot free.

In the instant case, not only were the documents and materials not supplied along with the order of detention, but there has hccn a delay of about 25 days in disposing of the represenfation of the <l<'!cnu and no explanation for the same has been given. These lire

maucrs which must be closely examined by the Government.

For the reasons given above, we hold tliat the continued detention -<'f the detenu is void. We allow the petition and direct the detenu kl

. be released forthwith.

A copy of this judgment be sent to the Home Ministers of all the State Governments, Hon'ble the Home Minister of the Government of India and also the Hon'ble Finance Minister, Government of India for necessary action .

IJ'.B.R.

Petition allowed.

KAMLA KANAHlYALAL KHUSHALANI

STATE OF MAHARASHTRA AND ANR

January 6, 1981

MURTAZA FAZAL ALI

A. VARADARAJAN, JJ.

Activities Act, 1974

Art. 32

November 18, 1980

32 of the Constitution the petitioner detenu com
plained that though the grounds of detention were served on the dctenu on the C date of arrest (October 20, 1980) the materials and documents on which the order of detention was based were not supplied to him till November 5, 1980 and that his representation dated November 18, 1980 was disposed of nearly a month later (December 15, 1980) and that the failure on the part of the detaining authority to supply the requisite documents and materials and the unexplained delay in the disposal of the representation constituted violation of the safeguards contained in Art, 22(5) of the Constitntion which vitiated the D .order of detention.

December 15, 1980

Art. 22(5)

Art. 21

Art. 22(5)

Art. 22(5)

Art. 21

Art. 21

Art. 22(5)

[1978] 2 SCR 621

Article 32

Ram Jethmalani

Rani Jethmalani

O. P. Rana

M. N. Shroff

FAZAL ALI

18th November 1980

15th December 19.80

Jethmalani

Art. 22(5)

Bhagwati

Article 22

section 3

Article 22

Article 22

Section 3

Section 3

Article 22

sec 531

sec 544

Article 22

Section 3

Rana

Art. 22(5)

Shalini Soni

Tcchu Devi

Article 22(5)

Article 22(5)

Art. 21

Art. 21

Art. 22(5)

Art. 21

Art. 22(5)

Art. 22(5)

Art. 21

Mankea Gandhi

Art. 22(5)

[1978] 2 SCR 621

Art. 21

Art. 22(5)

Art. 22

Supreme Court

[1969] 3 SCR 574

Central Government

Government of India