RAM CHANDER

v.

:STATE OF HARYANA

February 25, 1981

. '.

(0. CHINNAPPA REDDY AND BAHARUL ISLAM, JJ.J ·

Role ofa Judge trying a criminal i; ase explained-Evidence Act, setio~ j65 read with section 172{2) of the Code of Criminal Procedure, whethef a 'Judg~' in a crimi11, al case .. 111ay put any quesfion. t() /e wiflless and jf so,,, what are its

/imitations-Ev'illence Act, sectioi1 }!, ~; ope of. · ·"' = ' . ;, ·~. • ' L '; • ·•,;'• ' 1

.,,:, The appellant Ram Cha11der <ind. Mange were tried by the, learitelf',.:Additional Sessions Judge, .Jind, for the murder of Dunni. Both were convicted under

sf<!.J01i 3q2 read with section M Inpian Penal Code' ad SCl)terycef! io in1prion ment ror life. On appeal the High Court a9quitted Mange but. cc/nfirmed . the conviction' and sentence ofkiun Chander. 'In appeai hy '.i; pecial leave. it was contended lhat the' conviction alld sentence were vitiated as the principle' of fair . trial 'was abandoned by. the Sessions Judge 'who rebuked. the. Witnesses and threatened them with prosecution for perjury . and based his. c; onviction on such

eiitmted evidence. ·." . • •.. . . -

. Allowing the appcl}l, the Court' ' ' . .rq ·~- . .. ] : . :_..,,.~ . ,; . •• . .

HELD : 1 : I. If a Gdminal Court is to be an effective instrument in dispensing justice, the presidin.g judge must cease t~ be :a pectator and. mere recording. lllchine. !He must become .a , participant in .the triai by evincing inteliigent aclie)nforest by putting questions fo witnesses 'iii orcter tO a'scertain

th~ truth. The Court has wide powers and nlust actively partiCipate: in th{ frial fo elicit the fruth and!O proteci the' weak and the innocent.' It is rthe dui:f.,;11wa ]tidge to discovec the.truth and for that purpose, he may :·"ask . any question; .in

any.form, at any time, of any witn1>ss, or of the parties, about any fact, .relevant or irrelevant". But this he must. clo,· without unduJy. trespassing upon the functions of the public prosecutor and the defence'counsel, without any hint of partisanship and without appearing to frighten, coerce, confuse, intimidate or bully wilnesse~. He must take the prosecution and the .defence with him. The Coi1rt, the prosecution and the defence must work as a team whose goal isjustice, a team whose captain is !he

0'judge. The judge, ''like the conductor of a choir, itmst, by force of personality, induce his team .. to work in harmony; subdue the raucous, encQwage the timid; conspire with the_young, flatter aryd"<>I,<!." (1411, F,

D; 15E-F] r

;'', Sessions J11dg~, Neitore' v. Jntna Rainana Reddy nd .. Altl"., LLJC 1972 AP -683, approved. "'

Jones v. N; tional C?al Board, [ 1957] 2 All E.R. 155, quoted with approal.

1 : 2; In the instan't c'ase, the questions put by the learned Sessions Judge, particularly the threats held out to the witnesses that if they changed their H statements thy would involve themselves in prosecution for perjury were certainly intimidating, coming as they did from the presiding judge. In an effort to compel

the witnes.scs. to speak ."°hat he thought must be truth, the learned Sessions Judge, very:_ wrongly, firmly rebuked them and vifiually. threatened: them with-, prosecu~

tionS rOr pCrjWy: ~- HC left 'bis seat a'.nd Cii'tCred theriilg.' The 'Princii)1e' .of "fair tnaI".Wa'sabandonCd. [19F-H] ·'- 1" 'Jt:'> - '~ .; i.; -· . 1 -_.·; i; " 1 '

;,, j'.i..fr.~"'.: -:-.-'.~ ;·, ,-. ' ·.-_.·!·.;. ·; :~ ;_.;1-. ;; ~;.::;_•1;:1 ;~,-'.~;-_;_<ii/;:~:.--·.·· ,,1 . , '; : : -2.,. lpe Evidence -Act conta_ins dtailed provisions, dealing . whh. state_ments of persons_who cannot. be. called as witne$ses. _and former1 statements. of _pens

WhO ire called aswi, tiiCsseS. Th~ PrOvislollS would ipf; ear_iO. becOil?.e c:.4uridant it thC 'eVidenee or 3 whriCSs' i~ to be lesie"d iind 3.cCepted or iCiectCd with rerCrence tO -the 'foimer'Stitement Of arioiheCwnneS~ on the iround. that such; (ofinCr 'sta~ menittnders t1ie evidence highly'. probable -or: improbable.. Even :assd.olliig:· that

nd:er .. certain cirqimstancs it_ is permissible _t~- use, t_he_ first_ inf9nnatio:n. Jeport und1.'t' the first part of section 11 there is in the present case no question, of invoking the first part Or section 11, which is inapplicable· sinCc, thC nrst inf0rrD.3iiO.ti:

report.is now not ought t_o be used as b<:ing inconsisten~ wi_th. -the• prosecution

~#~'.~ ~Or"ca~ firsti~~tiOll por"tJie u~'by, rsO~ .. '.tq,.t!tC: -~~n.d .. Dart of section ll. 1 120 H2IA 20 F~G] - i ·• :,__ "'" _, ,) ' _. .. r"" .. 1 -- 1 ,.,!! ,1 ··; !.•;!_'~ ~'.~.,~· •,..:: ~;,,,~~.:1, i ·;~·;:1· ': ·.::.1: 'l :·:r1<1 '";!,:'.~-:~; ·.:-;~!~ ., ';,,, Ram.Kumar Pande ••The State of Madhya Pradesh, [l9J5} ~·,, S.C,!L. 519@

522, d.issed .. ti'J , ... .• ·,.1••. 113 ,.,._,. ?:.i. n•i'-.·

. .-.-:: !."J;;.J,·::; , .. .. ,,~. - ...... ~- ....... ,_.,,. -

- .... :'" cin11NAF APi>tU.,\'il: Juit1soicr10N:Crliri1i1.t1 AiiperuNd; 390/75.

i:'; :ai t<,:.!,';:,; ··:: '.~:.,, :iu '.i'f: )/i.' 1.r::rr~ :.·,' _;!:. .. : J':i.1 ~:·; ; j ... ,,, Appeal :by 'special, leave<from .the' Judgment and.Order dated ; Z.7.1975 .of! Punjab.& Haryana High Court; in Cr"A. No. l554/74 •

. '•.,._.,.,.-!• -·(•, ·-· .. .. _ , , ._, r 1 __ .•, t .. , . .; , , ' .. ·, 1

:,~;'.KaP, fl; Sibai~ subhqsh -.Skar"!,{/'. a?d, 1:Rav(d~(]: 13!1, a J?r the

i'PP~Ilant: ... ,, .. •. ;'!, ,;,_c, ·" ., .,. , -,,, . , ,,, ,,., •. J(, G •• Bhagat and R..!f1Poddar. for the, Respondent. "''<'"'/; . , . .

: ,.; The.Ju.dgment; o,(the, Curt, was de!ivered , bY•, ,. ',;; ruilf 'f" ,,.; •·,•'1 Lp-· ·• ._._ • -'• _: •.,·•r r-'- ! , ·":It'":. i;,:J?, t f.,.;_, _,.-. · ' CHINNAPPA REDDY, J: , What is the true role of a jud_ge trying a _., ,_ •' • '

- "''"!-' ~-- ·- • - ,., • : .. , , ' - f < • ' ' • ' .. '1 ' , '. : • ". ' • ciiminal 'case ?; • Js he to ' assume the role of'a 'referee hi. 'a football

match lit rt: ,; inp;;;,"in a:Ctickei'rnatch, occasionaily answering,' as Pollock arid Maitlnd(1) ''p6iilt 'oui, ''the question. 'How is-that'' oi, F is heTo, iri the words o( Lora . Kenning 'drop 'the mantle of a judge

, ..... '""'-"J ·-·} "''''' -· ' ,.., ..•. , . '.··.· ~._ ...... - •• . a:nd '.assume the "role' of an advocate ?(') Is be to be a' . spectator bra 'participant' at the trial? is(passivitY or actlvi!yfo' niark his attitude?. Ii he desires to questio~ 'ahy of the whnesses; rfiow'far can

Ji.~. go? Can he put. on the glo!es a, n, d 'have a go', '\t., th~ 1witness who he suspects is . lying or is he to be.son and suave 1 These are some G

- - . . •·· •, - . •· . - ' , • ' - , r. ' -. of the ... questions .. which, we,. are compelled to ask ourselves 1n this appeal on. account of the manner in. whih the judge who' tried the.

case put "questions to orne of the wiinesss. ' .

- . - ' ......

- '. '

 (i) Pollock 3ncfMa.itJand: The HiStory of English laW.

(2~ Jones v .. National _.C!oa~, Board, ._[1957] 2 All.E.R. 155. \ H

The adversary system of trial being what it is, there is an unfortunate tendancy for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive element entering the trial procedure. If a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He. must_ become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.· As one of us had occasion to say in the past.

"Every criminal trial is a voyage of discovery . in which truth is the quest. It is the duty of a presiding Judge fo explore every avenue open to him in order to discover the fruth and to advance the cause of justice. For that purpose he is expressly invested by section 165 of the Evidence Act with the right to put questions to witnesses. . Indeed_ the right givep. to. a Judge is so wide that he may 'ask any question he pleases, in any form, at any time; of any witness, or of the parties about any fact, relevant or irrelevant. Section :172 (2) of the Code of Criminal Procedure enables the Court to send for the policediarfos in a case and use them to aid It in the trial. The record

of the proceedings of the committing Magistrate may alo be perused by the Sessions Judge to further aid him in the trial."(1)

With such wide powers, the Court must actively participate in the trial to elicit the truth and to protect the weak and the innocent.

It must, of course, not assume the role of a prosecutor in putting questions. The functions of the counsel, particularly those of the

Public Prosecutor, are not to be usurped by the judge, by descending into the arena, as it were.

Any questions put by the judge must be so as not to frighten, coerce, confuse or intimidate_ the witnesses.

The danger inherent in a judge adopting a much too stern an attitude towards witnesses has been. explained by Lord Justice Birkett :

"People accustomed to the procedure of the Court are likely to be over-awed or frightened, or cofused; or distressed when under the ordeal of prolonged questioning 'from the presiding Judge. Moreover, when the questfoning takes on a sarcastic or ironic tone as it is apt to do, or when it takes on a hostile note as is sometimes almost inevitable, the danger is

(I) Session Judge, Ne/lore v. /11t11a Ramana Reddy (ILR 1972 AP 683).

not only that witnesses will be unable to present the evidence they may wish, but the parties may begin to think, quite wrongly it may be, that the judge is not holding the scales of justice quite eventualy"(1)

In Jones v. National Coal Board Lord [Justice Denning observed :

"The Judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been over looked or left obscure; to see that the advoctes behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of the judge and assumes the role of an advocate; and the change does not become him well."

We may go further than Lord Denning and say that it is the duty of a judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant orirrelevant" (Sec. 165 Evidence Act). But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten or bully witnesses.

He must take the prosecution and the defence with him.

The Court, the' prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The judge, 'like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourge the timid, conspire with the young, flatter and old'.

Let us now take a look at the facts of the case before us. Ram Chander and, Mange were tried by the learned Additional Sessions Judge, Jind, for the murder of Dunni. Both were convicted under Sec. 302 read with Sec. 34 Indian Penal Code and sentenced to imprisonment for life.

On appeal the High Court acquitted Mange but confirmed the conviction of Ram Chander. The prosecution case was that on February 14, 1974, at about 11 a.m. Dunni was proceeding from his field towards the village, Sucha Khera and was

(1) Extracted by Lord Denning in Jones v.

National . Board [1957] H 2 All.E.R; 155.

passing near the field . of Ram Chander a1id Mange when he was attacked 'by them with Jatus (wooden pegs fixed to a cart). They inflicted several injuries on Dunni.

Mewa (P.W.9) who was working in his field tried to rescue Ram Chander. He was given a lathi blow on his head'. On hearing the alarm raised by Dunni, Hari Chand (P~W.8) and Jiwana (P.W.2) and others came there and witnessed the occJii; rence. The assailants ran away.

Jiwana the . Lambardar proceeded to ti).e village to inform the relatives of Dunni . . :d~ the way he met bh:n Singh (P.W. 10), ad told P, ini about the 9ccurrel1<; e~ Jiwana thereafter went to the Police Station at Narwana and lodged the First Information'Report at' ab()ut s.is p.m. The

Sb Inspector of Polke went to the village. He held the inquest and . . .. µ ·. . • - .. . sent the .. dead body f9r post mortem exammatiOn .. He looed for

Jvf ewa and Hari _Chan'cl.

Both . of them were not avilable in the village, . A constable . \iras: sent to fetch thein from Sucha Khera.

Neither elf' them was brought that night.

Net morning he was able . to examine Mewa but Hari Chand \Vas 1iott~ be found. Hari Chand was finally examined on 16th. the Doctor who conducted the . autopsy found 01.irteen injuries on the body of Dunni.

Thee were

fracturesof the left partial,. frontal .and occipital bones. Accmding to the Dctor that was due t~· "co~1pression of brain with 1uliiple .. fractures of skull'\ On February 'ts, 1974, at about 4 P.M .. the

.Ooto; als~ axmined Mewa nd found on the right side of his

.had n abain 1" xl/4''. ·

In suppr~ of its case the prosecution examfoed P. W s. 2, 8 nd .9 as eye wirneses to the occurrence. P.W. IO was examined to speak to the information alleged to have been given to him by P.Ws. 2

atd 8 tht the deceased had been beateri by the two accused

prsons. ~P.W. 2 did not support the prosecution case and was declared ; hstile. P.Ws. 8 and 9, the remaining ey~ witnesses seemingly. supported the prosecution case in varying degrees in the , examination-in-cl)ief, but they made some damaging admissions in cross-examinati()n. P.W. 9 even in examination-in-chief stated that

., Mange was notarmed with any weapon though he. was present alongwith Ram Chander .. The learned Sessions Judge convicted both . Ram Chander and Mange but having regard to the e':'idence of

P.W. 9 the High (:ourt acquitted Mange and.confirmed the convic- . tion of.Ram -Chander.

It ws' argued by Shri Kapil Sibal, learned Counsel for the H appellant that in view of the several statements made by P.Ws. ll and 9 in their cross examination, their evidence should not have been

"'(

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accepted by the Courts below.

Shri Sibal also submitted that the accused did not have a fair trial as the learned Sessions Judge particularly assumed the role of a Prosecutor.

Hari Chand, P.W. 8 said in his examination-in-chief that when he was working in his field he heard a noise from the side of the field of Mange. He and Jiwana (P.W. 2) went in that direction.

From a distance they saw Mange and Ram Chander giving blows to Dunni with dandas.

By the time they went near, Ram Chander and Mange ran away. They saw Mange tying a piece of cloth round the head. of Dunni. Dunni was bleeding and was hardly able to

breathe~ . They . .went to the village to inform the.people about the occurrence. On the.way they met P.W. IO and told him about Dunni. having been beaten by the two accused. Later that day he went to Sucha Khera for offa; ial work.

The police examined him on 16.2.74. We have already referred to the circumstance that .he was not available for examination by the Police on 14th and 15th.

He sought to explain his absence from the village by stating that he went to Sucha Khera in connection with his 'Official work. In cross-examination he admitted that he did not mention this fact in the Roznamcha (daily .:-diary). ·.He also admitted that the village Sucha Khera. was not within his jurisdiction. He further admitted that the notice for serving which he went to Sucha Khera was with regard to water shoot No. 14750 at Sucha Khera. In answer to a question whether he only saw the accused running away or doing something else, he categorically stated that he did not see those persons causing injuries but only saw t)lem running away.

Thereupon the Sessions Judge told him that in his examination-inchief he had said that he had seen Mange and Ram Chander causing injuries and that if he made inconsistent statements oii material points he could be prosecuted for perjury. The Sessions Judge has made a note to this effect in the deposition itself. In answer to a further question P.W. 8 stated that when they were running away their backs were towards him.

The Sessions fudge once again repeated the warning which he had given earlier. The Sessions note with regard to the. first warning is in the following words:

"The witness has been explained right here his statement

which has gone on record and he has been told that in examination-in-chief he has said that he had seen Mange and Ram H Chander causing injuries.

He had also been informed that

a person can be prosecuted for perjury if on material points inconsistent statements are made."

The second warning which was given by the learned Sessions Judge has been recorded by the learned Sessions Judge in the following words:

"As was pointed out to you yesterday also, it is once more pointed out to you that in examination-in-chief yesterday, you clearly stated before the Court that you saw Ram Chander and Mange causing injuries to Dunni. Later on in cross-examination by Shri Shamsher Singh you said that you saw the accused persons running away. You have already been warned about the consequences of inconsistent replies. Without fear or favour tell the Court, which of the two statements is correct and whether you saw Mange and Ram Chander causing injuries to Dunni or not."

To this questiorn the answer of the witness was that when he was at some distance _he saw them causing injuries but by the time he went near they had run away. P. W. 9 stated even in his chief examination that when he saw Mange and Ram Chander, they were running in the direction of Denuda.

Ram Chander had a danda.

Mange was empty handed. They started beating a person who was coming from Denuda side. He tried to rescue, the person. He was given a blow on his head with a stick.

He felt giddy and sat down.

He did not know what happened afterwards because he was feeling faint. He came tohis senses when Lambardar andPatwari came there.

Then he went to his '!illage: He stated in cross-examination that on 15th. he was .calkd by.the Police and taken to the field and from the field he was taken to Narwana where he was kept in: the Police Station upto 16th.

He was allowed to go away after his statement was recorded by the Magistrate under S. 164_ Cr. Procedure Code.

Jiwana was also there at that time. When he was asked whether the statement which .he made to the Magistrate was tutored his reply was "Yes, the statement was told". Later again he said "I gave the statement as told by the police." He stated that he was not beaten but only threatened.

He further stated that the day before he gave evidence in Court he was threatened by the Police that if he did not give the statement he would himself be involved in a case.

He also said that he wanted to say whatever he actually saw but the police did not agree and said that he must give the entire statement as mentioned by them.

During the course of the cross-examination of

---...<--

I r

I "

\ '

the witness the learned Sessions Judge made two notes which may be A extracted here. The first note runs :

"This time the witness says that the police said that the police will make a case against him. Previously the witness was not prepared to go to that extent. I wonder whether the witness understands the difference between two things namely that the Police will make a case against him and between this that if he changed his statement he will involve himself in a case. The matter to be appreciated at appropriate stage.

The second note is as follows :

"I will examine the witness through Court questions as to which part of' the statement he admits to be correct without fear of the police. The learned defence counsel may proceed further to build up his defence."

Thereafter the learned Sessibns Judge himself put some questions to the witness. The witness said that he did not tell the Magistrate that he was making the statement under the pressure of the Police.

The learned Sessions Judge then put him the following question : "You have said that even before me yoti are makihg a statement under the pressure of the police.

Please state whether you mean it. and you were giving the statement under pressure of the police." The answer was that "I am giving the statement freely." The learned Sessions Judge put him a few more questions one of which was whether he was honestly stating that Mange was bare headed and Ram Chander had a dunda.

The witness answered that lie said so honestly.

The questions put by the learned Sessions Judge, particularly the threats held out to the witnesses that if they changed their statements they would involve themselves in prosecutions for perjury were certainly intimidating, coming as they did from the presiding judge. The learned Sessions Judge appeared to have become irate that the witnesses were not sticking to the statements made by them under sections 161 and 164 and were probably giving false evidence before him. In an effort to compel them to speak what he thought must be the truth, the learned Sessions Judge, very wrongly, in our opinion, firmly rebuked them and virtually threatened them, with prosecutions for perjury. He left his seat and entered the ring, we may say.

The principle of 'fair trial' was abandoned. We find it impossible to justify the attitude adopted by the Sessions Judge and we also find it

A impossible to accept any portion of the evidence of P. Ws 8 and 9, the two alleged eye witnesses.

Shri Bhagat very ingeniously argued that the evidence of P.Ws 8 and 9 could yet be acted upon to the extent their evidence was substantiated by the first information report given by P.W.2.

When we pointed out that neither PW 8 nor PW9 was the author of the first information report and, therefore, the report could not be used to corroborate their evidence, Shri Bhagat suggested that we could do so by invoking the provisions of Section 11 of the Evidence Act.

He relied upon the following observations of Beg J. in Ram Kumar

Pande v. The State of Madhya Pradesh :(1)

"No doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow of Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that omissions of such important facts, affecting the probabilitie> of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case".

Beg, J, apparently had the first part of Section 11 in mind and thought that the presence of the daughters at the scene was inconsistent with the failure of the father to refer to their presence in the first information report having regard to the circumstances under which the report must have been made.

Even assuming that under certain circumstances it .is permissible to use the first information report under the first part of Section 11 (we say nothing about the correctness of the view), there is in the present case no question of invoking the first part of Section 11, which is inapplicable since the first information report is now not sought to be used as being inconsistent with the prosecution case.

Nor do we think that the first information report can b.e used by resort to the second part of section 11.

The Evidence Act contains detailed provisions dealing with statements of persons who cannot be called as witnesses and former statemenLS of persons who are called as witnesses. These

<ll [1975] 3 s.c.R. 519@ s22 .

provisions would appear to become redundant if the evidence of a witness is to be tested and accepted or rejected with reference to the former statement of another witness, on the ground that such former statement renders the evidence _highly probable or improbable.

We can do no better than to refer to Stephen, the framer of the Section who said : "It may possibly be argued that the effect of the second paragraph of Section 11 would be to admit proof of such facts as these (viz. statements as to facts by persons not called as witness; transactions similar to but unconnected with the facts in issue; opinions formed by persons as to facts in issue or relevant facts). It may, for instance, be said: A (not called as a witness) was heard to declare that he had seen B commit a crime. This makes highly probable that B did commit that crime. Therefore A's declaration is a relevant fact under Section 11 this was not the intention of the section as is shown by the elaborate provision contained in the following part of Chapter 11 (Sections 31 to 39) as the particular classes of statements, which are regarded as relevant facts either because the circumstances under which they are made invest them with importance, or because no better evidence can be got. The sort of facts which the section was intended to include are facts which either exclude or imply more or less distinctly the existence of the facts sought to be proved". We, therefore, do not think that section 11 may be invoked in the present case, in the manner suggested by the learned counsel. In the result we acc)pt the appeal, set aside the conviction and sentence and direct the appellant to be set at liberty forthwith. - -

V.D.K.

Appeal allowed.

RAM CHANDER

STATE OF HARYANA

0. CHINNAPPA REDDY

BAHARUL ISLAM, JJ

section 172

Code of Criminal Procedure

Dunni

Inpian Penal Code

section 11

section 11

State of Madhya Pradesh

Jones

(i) Pollock 3ncfMa.itJand: The HiStory of English laW.

(2~ Jones v .. National .C!oa~, Board, .[1957] 2 All.

section 165

Code of Criminal Procedure

Birkett

Denning

Denning

Sec. 165

Ram Chander

Mange

Sec. 302

Sec. 34

Indian Penal Code

Ram Chander

February 14, 1974

Dunni

Sucha Khera

Mewa

Hari Chand

Jiwana

n Singh

Narwana

Polke

Sucha Khera

Mewa

Hari Chand

s. 2, 8

Mange

Ram Chander

Sibal

14th and 15th.

Ram H Chander

Shamsher Singh

Denuda

Lambardar

andPatwari

S. 164

Jiwana

sections 161 and 164

Bhagat

Section 11

Beg

Harbinder Singh

Section 11

Section 11

Section 11

Section 11

section 11

Stephen

Section 11

Section 11

Sections 31 to 39

section 11

V.D.K.


SMT. KHATOON BEGUM ETC. ETC

UNION OF INDIA AND ORS. ETC. ETC.

March 9, 1981

(0. CHINNAPPA REDDY AND BAHARUL ISLAM, JJ.J

Constitution af India, I950, Article 22(5) -Whether delay in considering the representation made by a detenu vitiates the detention under the National Security Act.

Allowing the appeals, the Court HELD : 1 : 1. Article 22 (5) of the Constitution en3oms a duty on the authority making the order of detention to afford the detenu the earliest opportunity of making a representation against the order. The right and obligation to make and to consider the representation at the earliest opportunity is a constitutional imperative which cannot be curtailed or abridged. [140 E]

I : 2. If the Parliament or the State Legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the inter-departmental consultative procedures are such D that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate.

[140 F]

I : 3. It is essential that any law providing for preventive detention and any authority obliged to make order for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus. It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable. The constitutional mandate brooks no unreasonable delay in the consideration of a representation. [140 G, 141A]

I : 4. The right of detenu to have his representation considered "at the earliest opportunity" and the obligation of the detaining aLithority to consider the representation "at the earliest opportunity" are not a right and an obligation flowing from either the Conservation of Foreign Exchange and Prevention of Smuggling Activities, 1974 or the National Security Act or, for that matter any other Parliamentary or State law providing for preventive detention. They are a right and an obligation created by the very Constitution which breathes life into the Parliamentary or State law.

[140 DJ

Jayanarayan Sukut v. State of West Bengal, [1970] 3 SCR 225; Narendra Purshotam Umrao etc. v. B.B. Gujral and Ors., [1979] 2 SCR 315; V.J. Jain v.

Pradhan, AIR 1979 SC 1501; Smt. Ichhu Devi Choraria v. Union of India and Ors.; AIR 1980 SC 1983; Ramachandra A. Kamat v. Union of India and Ors. [1980] 2 SCR 1072; Frances Coralie Mullin v. W. C. Khambra and Ors .. [1980] 2 SCR

I 09 5, referred to. ·

ORIGINAL JURISDICTION : Writ Petition Nos. 293, 391 and 392 of 1981.

(Under Article 32 of the Constitution)

M.M. Abdul Khader and Shakeel Ahmed for the Petitioners.

R.K. Bhatt, D. Goburdhan and Miss A. Subhashini for the Respondents.

The Judgment of.the Court was delivered by

CHINNAPPA REDDY, J. These three Writ Petitions may be disposed of by a single judgment since the principal question argued in

all the three cases is one. The question is whether delay in considering the representation made by a detenu under Art. 22(5) of the Constitution vitiates a detention under the National Security Act and entitles the detenu to be released on that ground alone.

As a result of a series of decisions of this Court, (1) it is now well settled that the representation made by a detenu under Art. 22(5) of the Constitution against his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, must be considered by the detaining authority with the utmost expedition and that any unexplained delay in considering the representation will be fatal to the detention. The learned counsel for the State .of Uttar Pradesh urged that the rule requiring expeditious consideration of a detenu's representation is a judge-made rule based on provisions of the Conservation of Foreign Exchange and Prevention of the Smuggling Activities Act, 1974, and that the extension of the application of the rule to cases of detention under the National Security Act was unwarranted.

The learned counsel contrasted the provisions of the National Security Act and the provisions of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974, and urged that in the case of detention under the National Security Act, a certain amount of delay was inevitable having due regard to the procedure prescribed by the Act and,

(1)

(a) Jayanarayan Sukut v. State of West Bengal

[1970] 3 SCR 225

(b) Narendra Purshotam Umrao etc. v. B.B. Gujral & Ors.

[1979] 2 SCR 315:

(c) Ramchandra A. Kamat v. Union of India and Ors.,

(1980] 2 SCR 1072

(d) Frances Coralie Mullin v. W.C. Khambra and Ors.

(1980] 2 SCR 1095;

(e) V.J. Jain v. Pradhan

AIR 1979 SC 1501 H

(f) Smt. Jchhu Devi Choraria v. Union of India and Ors.

AIR 1980 SC 1983.

J /

._.,.

SMT. KHATOON BEGUM v. UNION (Chinnappa Reddy, J.) 139

therefore, delay in consideration of the representation should not be allowed to prejudice the detention.

We are unable to agree with the submission of the learned counsel.

We will presently give our reasons for our inability to accept the learned counsel's submissions but we will first like to refer to a few facts.

In Writ Petition (Criminal) No. 293 of 1981 the order and the grounds of detention were served on the detenu on October 30,

1980 and November l, 1980 respectively. The detenu made a representation on November 12, 1980.

Though according to the detenu he has received no communication from the Government about his representation, the Additional District Magistrate has stated in his counter-affidavit that the representation was rejected on December 9, 1980 and that it was communicated to the detenu through the Superintendent of the Central Jail. The counter-affidavit mentions not a word to explain the delay in considering the representation. The only reference to the representation in the counter-affidavit is in these two sentences: "It is admitted that the detenu made a representation to the Home Secretary on November 12, 1980, and the same was rejected on December 9, 1980. The rejection of the representation was communicated to the detenu through Superintendent, Central Jail by the Government".

Similarly in Writ Petition (Criminal No. 391 of 1981, the order and the grounds of detention were served on the detenu on November 12, 1980.

The representation was rejected on December 10, 1980.

In the counter affidavit filed by the Section Officer, Confidential Department, of the Government of Uttar Pradesh, it is stated that on receipt of the representation, the Secretary, Home Department, forwarded it to the District Magistrate for his comments. In order to meet the allegations in the representation, the District Magistrate had to gather information from many sources and the representation alongwith his comments was returned to the Home Secretary by the District Magistrate on November 25, 1980.

Thereafter Law Department was consulted and the file could reach the Home Minister on December 5, 1980 only.

The representation was rejected by the Home Minister on December 8, 1980 and then commun, cated to the detenu through the Superintendent, Central Jail.

In Writ Petition (Criminal) No. 392 of 1981 the order

and the grounds of detention were served on the detenu on H October 16, 1980.

The detenu made a representation on October 24, 1980. It was rejected on November 25, 1980. The counter-

A affidavit filed by the Additional District Magistrate does not offer any explanation for the delay in the consideration of the representation.

He has satisfied himself with the statement "as regards the representation of the detenu . to the Home Secretary this fact is admitted".

The question for consideration is whether a person preventively detained under the provisions of the National Security Act is entitled to be released if there is delay in the consideration of the representation made by him to the detaining authority. It is true that the series of cases where delay in the consideration of the representation made by a detenu was held to be fatal to detention were cases which arose under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

We are however, unable to see how that would make any difference.

The right of detenu to have his representation considered "at the earlier opportunity" and the obligation of the detaining authority to consider the representation "at the earliest opportunity" are not a right and an obligation flowing from either the Conservation of Foreign Exchange and Pr"evention of Smuggling Activities Act 1974, or the National Security Act or, for that matter any other Parliamentary of State law providing for preventive detention. They are a right and an obligation created by the very Constitution which breathes life into the Parliamentary or State law. Art. 22(5) enjoins a duty on the authority making the order of detention to afford the detenu "the earliest opportunity of making a representation against the order". The right and obligation to make and to consider the representation at the earliest opportunity is a Constitutional imperative which cannot be curtailed or abridged. If the Parliament or the State legislature making the law providing for preventive detention devises a circumlocutary procedure for considering the representation or if the inter-departmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate. It is essential that any Jaw providing for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus.

It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable. The learned counsel for the State of Uttar Pradesh pointed out certain differences between the Conservation of Foreign Exchange and Prevention. of Smuggling Activities Act and the National Security Act which according to him make delay inevitable in

l /

SMT. KHATOON BEGUM v. UNION (Chinnappa Reddy, J.) 141

the consideration of representations in cases of detention under the National Security Act.

We think that the differences pointed out are irrelevant. The constitutional mandate brooks no unreasonable delay in the consideration of a representation. In the cases before us, in Criminal Writ Petition Nos. 293 of 1981 and 392 of 1981. no explanation was offered by the detaining authority for the delay in the consideration of representations and in Criminal Writ Petition No. 391 of 1981, administrative red tape was the only explanation offered.

We are satisfied that in all the three cases there was unreasonable delay in the consideration of the representations and the detenus are, therefore, entiled to be released. They will be released forthwith. The Writ Petitions are allowed.

V.D.K.

Petition allowed

SMT. KHATOON BEGUM

ETC

UNION OF INDIA AND ORS. ETC. ETC

March 9, 1981

0. CHINNAPPA REDDY

BAHARUL ISLAM, JJ

Article 22(5)

National Security Act

Article 22

Parliament

National Security Act

[1970] 3 SCR 225

[1979] 2 SCR 315

AIR 1979 SC 1501

AIR 1980 SC 1983

[1980] 2 SCR 1072

Article 32

M.M. Abdul Khader

Shakeel Ahmed

R.K. Bhatt

D. Goburdhan

A. Subhashini

Art. 22(5)

National Security Act

Art. 22(5)

State .of Uttar Pradesh

National Security Act

National Security Act

National Security Act

[1970] 3 SCR 225

[1979] 2 SCR 315

(1980] 2 SCR 1072

(1980] 2 SCR 1095

AIR 1979 SC 1501

AIR 1980 SC 1983

December 9, 1980

November 12, 1980

December 10, 1980

Government of Uttar Pradesh

November 25, 1980

December 5, 1980

October 24, 1980

National Security Act

Smuggling Activities Act 1974

National Security Act

Art. 22(5)

State of Uttar Pradesh

National Security Act


AEL TEMESH REIN

CHANDULAL CHANDRAKAR & OTHERS

March 10, 1981

(Y. V. CHANDRACHUD C.J., AND A.P., SEN, J.)

Representation of the People Act, 1951-Sections 86 and 117 whether ultravires of Article 329(b) of the Constitution.

The appellant was a candidate for Election to the Lok Sabha in the General Elections. Respondent 1 was declared the successful candidate. The appellant filed Election Petition under Section 81 of the Representation of the People Act,

1951. The appellant expressly stated in his Election Petition that security amount of Rs. 2,000/- was being deposited along with the petition as required by section 117 of the Act but, in fact, no such deposit was made. The High Court dismissed the petition for non-compliance with the provisions of section 117.

On Appeal to this Court, the appellant argued that sections 86 and 117 of the Respresentation of the People Act, 1951 are ultra vires Article 329(b) of the Constitution and, therefore, the High Court was in error in dismissing the election petition for non-compliance of section 117.

Dismissing the appeal, the Court

HELD : (I) The Constitution by Article 329(b), has conferred authority on the appropriate legislature to pass a law providing for the authority to which the election petition may be presented and the manner of providing it. The provision of law which prescribes that an election petition shall be accompanied by the payment of security amount pertains to the area covered by the manner of the making of the election petition and is, therefore, within the authority of the Parliament. [143 G-H]

(2) The question as to what is the consequence of non-compliance with section 117 of the Act has been settled by the decision of this Court in Charan Lal Sahu v. Nand Kishore Bhatt and Others [1974] 1 S.C.R. 294. [144 A]

(3) The High Court was right in dismissing the election petition summarily in view of section 86(1) of the Act. [144 CJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 931 of 1980.

From the Judgment and Order dated 25.3.1980 of the Madhya Pradesh High Court in Election Petition No. 3/80.

Aeltemesh Rein Appellant in person.

AELTEMESH REIN v. CHANDULAL (Chandrachud, CJ.) 143

G.N. Rao and C.L. Sahu for the Respondents.

The Judgment of the Court was delivered by

CHANDRACHUD, C. J.

The appellant, Aeltemesh Rein, was a candidate for election to the Lok Sabha from the Durg Parliamentary Constituency in the General Elections held in January 1980. Respondent 1 having been declared as a successful candidate in the aforesaid election, the petitioner filed an election petition in the High Court of Madhya Pradesh under s. 81 of the Representation of the

People Act, 1951 ('The Act'). The appellant stated expressly in his election petition that the security amount of Rs. 2,000/- was being deposited along with the petition as required by s. 117 of the Act but, in fact, no such deposit was made.

The High Court dismissed the petition for non-compliance with the provisions of s. 117 and hence this appeal.

It is urged by the appellant who appeared in person before us that sections 86 and 117 of the Representation of the People Act, 1951 are ultra vires Article 329(b) of the Constitution and, therefore, the High Court was in error in dismissing the election petition for the reason that the provisions of s.117 were not complied with. We see no substance in this contention. Article 329(b) of the Constitution provid- . es, in so far as material, that no election to either House of Parliament

shall be called in question except by an election petition "presented

to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature". It is in pursuance of this provision that the Parliament provided by s. 117 of the Act that at the time of presenting an election petition, the petitioner shall deposit in the High Court, in accordance with the rules of the High Court, a sum of Rs. 2,000/- .as security for the costs of the resp:mdent.

We are unable to accept the petitioner's argument that the words "in such manner" which occur in Article 329(b) are limited in their operation to procedural and not substantive requirements. The Constitution, by the aforesaid clause, has conferred author.ity on the appropriate legislature to pass a law providing for the authority to which the election petition may be presented and the manner of providing it.

The provision of law which prescribes that an election petition shall be accompanied by the payment of security amount pertains to the area covered by the manner of the making of the election petition and is, therefore, within the authority of the Parliament.

SUPREME COURT REPORTS (1981] 3 S.C.k

The only question which survives is as to what is the consequence (of non-compliance with s. 117 of the Act. That question has been settled by the decision of this court in Charan Lal Sahu v. Nand Kishore Bhatt and Ors.(1) wherein it was held that the High Court has no option but to reject an election petition which is not accompanied by the payment of security amount as provided in s. 117 of the Act.

Section 86(1) of the Act provides that the High Court shall dismiss an election petition which does not comply with the provisions of Sections 81, 82 or 117. In that view of the . matter, the High Court was right in dismissing the election petition summarily. ·

The appellant contended that he could not pay the deposit because he was burgled on way to the Court. - This plea is as irrelevant as it seems untrue.

Accordingly, we uphold the Judgment of the High Court and dismiss this appeal. There will be no order as to costs.

N.K.A.

Appeal dismissed.

AEL TEMESH REIN

CHANDULAL CHANDRAKAR & OTHERS

March 10, 1981

Y. V. CHANDRACHUD C.J.

SEN, J.

Representation of the People Act, 1951

Sections 86 and 117

Article 329(b)

Section 81

Representation of the People Act

section 117

section 117

sections 86 and 117

Respresentation of the People Act, 1951

Article 329(b)

section 117

Article 329(b)

Parliament

section 117

[1974] 1 S.C.R. 294

section 86(1)

Aeltemesh Rein

G.N. Rao

C.L. Sahu

CHANDRACHUD

High Court of Madhya Pradesh

s. 81

People Act, 1951

s. 117

s. 117

sections 86 and 117

Representation of the People Act, 1951

Article 329(b)

Article 329(b)

s. 117

Article 329(b)

SUPREME COURT REPORTS (1981] 3 S.C.k

s. 117

s. 117

Section 86(1)

Sections 81, 82