!'104

ASHOK KUMAR & ORS.

\'.

I ADDITIONAL DISTRICT JUDGE, NAINITAL & ORS.

January 9, 1981

[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.]

Uttar Prade3h Urban Buildings (Regulation of Lttting, Rent and Eviction) Act, 1972-Sectlon 16(1)(a)-Scope of.

The appellant. were the landlords of a building in which the tenant was running a hotel. They filed a suit for the tenant's eviction on the ground that·~ he !lad defaulted in the payment of rent. The suit was decreed. The landlord, in anticipation of the premises falling vacant, filed an application before the Rent Controller and Eviction Officer under section 16 of the. U.P. Urban Buildinas

(Regulation of Lelling, Rent and Eviction) Act, 1972 for release of the building in question.

In the meantime respondent No. 3 filed a petition before the District Judge alleging that he was a partner in the hotel business with the consent and permbsion of the landlord and that the landlord be directed not to dispossess him.

This application was rejected on the ground that respondent No. 3 was neither a party to the ejectment suit nor was any objection filed by him during the pend ency of the suit alleging' that he bad a share in the business carried out by !he tenant.

After physical JlO"'e"ion of the premises was delivered to the appellant decreeholder respondent No. 3 filed a suit against the appellant and the former tenant faii setting aside the ejectment decree. He claimed that it was he who was the sole tenant and, that for this reason the decree could not have been passed

against the former tenant. The suit was dismi.!sed.

The appellant made an application before the Eviction Officer that the premises be allotted to him.

The Eviction Officer rejected the objection raised by respondent No. 3 and released the property in favour of the appellant. Th• Appellate Authority, however, allowed respondent No. 3 ·, appeal holding that"" the application filed by the landlord ,. .. not maintainable under section 16 of the Act as the tenant bad not been actually ejected when the application for notifying the vacancy was made.

G The appellant'• writ petition was dismissed by the High Court on the ground

that before notifying the vacancy tho Eviction Officer did not hear reipondent No. 3: .

Allowing the appeal

HEW : The High Court w.. in error in dismis.ling the appellant's writ petition.

The High Court doeo not appear to have con•idered the history Of the case and the various proceedings leading to the eviction of the tenant and to the fact that respondent No. 3 bad ao claim or right to the property.

Re<1pondent No. 3 never came in po11C11ion of the premises but tried to defeat or

j .

....

ASHOK KUMAR v. I ADDL. DISTT. JUDGE (Fazal Ali, !.) 505

delay the decree by varioll8 subterfuges and pretexts.

At no stage could he A show that ho was either a sub-tenant or a partner of tho tenant. There wOi, therefore, no question of his being heard by the Eviction Officer after possession waa delivered to the landlord and the vacany notified. If at all, such a hearing would have been futile and would have ultimately led to the same reswt.

[508E&DJ

The Appellate Authority took a wrong view of the law in allowing the res- B pondent's appeal. Under section 16(1) of the Act it was not necessary that tho application for notifying the vacancy should be made only after the premises have become actually vacant. Section 16(1)(a) so far as relevant, provides that tho District Magistrate may require a landlord to let any building which is about "o fall vacaut to any person specified in the order. Manifestly it is not necessary that under section 16(l)(a) the premises must actually become vacant before an application under it could be filed before tho District Magistrate. In the C instant case as the decree for ejectment was under contemptation it 'vas open to the appellant to move the District Magistrate for notifying the vacancy under the section. [507 E-GJ

CML APPELLATE JURISDICTION : Civil Appeal No. 1154 of 1974.

Appeal by Special Leave from the Judgment and Order dated 16-11-1978 of the Allahabad High Court in Writ Petition No. 1086/76 .

R. K. Garg, Vi; ay K. Jain and R. K. Gupta for the Appellants.

Bishamber Lal for Respondent No. 3.

'The Judgment of the Court was delivered by

FAZAL Au, J. This appeal by special leave is directed against an Order dated November 16, 1978 of the High Court of Allahabad dismissing the writ petition filed by the appellants.

The facts of the case fall within a narrow compass and may be , J"l=arised bus.

The premises in question which are situated in Nainita! were commonly known as 'Waverly Quarters' and properly called as 'Hotel Waldrof.

According to the appellants the premises were rented out to one Keshar Singh on an annual rent of Rs. 14,000 on November 17, 1953 and the allotment of Hotel Waldrof to the tenant,

Keslµr Singh, was confirmed by the Rent Controller sometime in the year 1954.

Thereafter, the tenant-Keshar Singh defaulted in the payment of rent resulting in a suit filed by the appellants for his eviction.

This suit was filed on 9-4-72 for ejectment and for recovery of arrears amounting to Rs. 26,743, due up to June 4, 1971.

On March 12, 1973 the tenant was asked to furufah . security for arrears which he failed to do and an application by the tenant for extension of time for furnishing security was also rejected by the

SUPREME COURT REPORTS

[1981] 2 S.C.R.

District Judge on 31st March, 1973.

On April 25, 1973, the landlord-appellant in anticipation of the premises falling vacant filed an application before !he Rent Control and Eviction Officer, Nainital (hereinafter referred to as the 'Eviction Officer') under s.16 of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (hereinafter referred to as the 'Act') for release of the building in question. On this application, the Eviction Officer directed the Inspector to submit a report on the question as to whether or not the premises had fallen vacant.

Meanwhile as the tenant had not deposited the rent as. directed by the Court, nor furnished the security his defence was• struck off and the appellant's suit for eviction was decreed on 9-5-1973.

After the decree for ejectment was passed against the tenant, Respondent No. 3, Harbans Singh, filed an application on 11-5-1973 in the court of District Judge, Kumaon, Nainital on the allegation that he was a partner of Keshar Singh in the business of Hotel Waldrof with the consent a.nd permission of the landlord and had purchased D the moveables of the aforesaid Hotel from Keshar Singh. He further prayed that the landlord-appellant be directed not to dispossess him (Harbans Singh).

This application was, howev•er, rejected by the District Judge on the ground that Harbans Singh was neither a party to the ejectment suit nor was any objection filed by him during the

pendency of the suit alleging that he had any share in the business.

The application of Harbans Singh was accordingly rejected by the District Judge on 12-5-73 .

Subsequently on 21-5-1973, the Rent Control Inspector reported to the Eviction Officer that the building in suit which was allotted to Keshar Singh in 1954 had fallen vacant ih pursuance of the decree for ejectment obtained by the appellant. During the pendency of snit, the original tenant, Keshar Singh had been appointed a Receiver of Hotel Waldrof but after the decree was passed, he delivered physical possession of the Hotel to the appellant-decree holder in the presence of witnesses. It appears that Harbans Si'ngh tried to resist the delivery of possession and abused the Conunissioner but to no avail.

Thus, having failed in his attempts, to resist the delivery of possession to the appellant, Harbans Singh filed a suit (No. 47 of 1973) in the court of District Judge against the appellant and the former tenant, Keshar Singh for setting aside the ejectment decree passed in II suit No. 27 of 1972 alleging that as he had become the sole tenant, Keshar Singh ceased to be a tenant of the disputed properly and the decree was wrongly passed against Keshar Singh.

He also pleaded

...

ASHOK KUMAR v. I ADDL. DISTT. JUDGE (Fazal Ali, J.) 507 , that the suit being a collusive one, the decree should be set aside.

A The suit filed by respondent No. 3 does not appetr to have been pursued and ultimately it stood dismissed on 11-6-1975.

Sometime in July 1973 the appellant by means of an application informed the Eviction Officer that the landlord had been delivered possession of the Hotel and prayed that since the premises had fallen vacant, the same may be allotted to him. Respondent No. 3, however, on 8-11-1973 filed objectious to the application of the landlord for releasing the accommodation on the allegation that he had filed a suit for setting aside the decree.

The Rent Control Inspector on being asked to report the exact position submitted his report to the viction Officer who rejected the application filed \Jy respondent No. 3 and by an order dated 18-11-1974 released the property in favour of the appellant with the exception of the outhouses which were in possession of different tenants. Harbans Singh then tiled an appeal on 11-4-1974 before the appellate authority challenging the order of the Eviction Officer.

This appeal was admittedly time-barred.

The appeal was, however, allowed by the appellate authority on the ground that the application filed by the landlord was not maintainable under s.16 of the Act as the tenant had not been actually ejected when the application for notifying the vacancy was made.

There can be no doubt that the appellate authority took a wrong

view of law in allowing the appeal because under the provisions of E s.16 ( 1) of the Act it was not necessary that the application for notifying the vacancy should be made only after the premises have become actually vacant.

Section 16(1)(a) runs thus:

"16(1) Subject to the provisions of this Act, the District Magistrate may by order-(a) require the landlord to Jet any building which is or has fallen vacant or is about to fall vacant, or a part of such building but not appurtenant land

&lone, to any person specified in the order (to be called an allotment order),." (Emphasis supplied).

It is manifest that under s.16(1)(a), it is not necessary that the premises must actually become vacant before an application under s. 16 could be filed before the District Magistrate. In the instant case, as a decree for ejectment was under contemplation, it was open to the appellant to have moved the District Magistrate for notifying the vacancy under s.16(1)(a) of the Act.

We have already pointed out that the premises did fall vacant sub- H sequently and the delivery of possession was also given to the landlord in pursuance of the decree of ejectment passed by the civil court.

---<--

s o s

SUPRE11E COURT REPORTS

[1981] 2 S.6.11..

A Respondent No. 3 appears to have made a futile attempt to make confusion worse confounded by representing that the premises were not vacant when he knew full well that the delivery of possession was given to the landlord in bis presence and he had later filed a suit for setting aside the decree which was dismissed.

Thus, it appears from the record that respondent No. 3, Harbans Singh, never came in B possession of the premises in question but tried to defeat or delay !be decree passed by the civil court in favonr of the appellant by various subterfuges and pretexts. However, as the appellate authority bad accepted the appeal filed by respondent No. 3, the appellants were compelled to take the matter to the High Court by way of a writ petition.

The High Court, however, dismissed the writ petition } mainly on the ground that before notifying the vacancy, the Eviction Officer did not bear respondent No. 3 . The High Court does

not appear to have considered the history of the case and the various proceedings leading to the eviction of Keshar Singh and to the fact that respondent No. 3 had absolutely no claim or right to the property.

At no stage could Harbans Singh prove that either be was a sub-tenant or a partner of Keshar Singh.

His attempt to get !he decree, passed in favour of the appellant, set aside failed.

In these circum.stances, therefore, there was no question of his beiug heard by the Eviction Officer after !he possession was delivered to the landlord and the vacancy was notified.

If at all, such a hearing would have been futile and would have ultimately led to the same result.

In these circumstances, we are clearly of the op; nion !hat the High Court erred in law in dismissing the writ petition and up holding the judgment of the District-Judge remanding the matter to the Eviction Officer.

We, therefore, allow this appeal, set aside the

];' judgment of the High Court as also that of the District Judge (the appellate authority) and restore the order of the Eviction Officer releasing the accommodation in favour of the appellant.

The appel land will be entitled to costs in this Court quantified at Rs. 2,000 1 (Rupees two thousand m:;Ӥ ) .

11'.B.R.

Appeal allowed.

104

ASHOK KUMAR & ORS

January 9, 1981

P. N. BHAGWATI

S. MURTAZA FAZAL ALI, JJ.

section 16

section 16

section 16(1)

Section 16(1)(a)

section 16(l)(a)

R. K. Garg

K. Jain

R. K. Gupta

Bishamber Lal

FAZAL Au

High Court of Allahabad

Keshar Singh

November 17, 1953

Keslµr Singh

Keshar Singh

June 4, 1971

March 12, 1973

31st March, 1973

Harbans Singh

District Judge, Kumaon, Nainital

Harbans Singh

Harbans Si'ngh

Section 16(1)(a)

s. 16


AJITSINGH THAKURS!NGH & ANR. v.

STATE OF GUJARAT

January 9, 1981

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

Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 -S. 2 & Indian Penal Code, S. 302 High Court setting aside order of acquillal of SeS&'iona Cpurt - Approach to be adopted by High Court in exercising appellate powera - High Court to consider whether integrality of evidence alone can •- ensure that accused are guilty.

limitation Act 1963, Art, 114 & S. 5-De/ay in filing, appeal against order of acquittal-Condonation of-Any event or circu1nstance arising after expiry of li111itation-whether can constitute 'sufficient cause'.

The two appellants who were father 311.ld son alongwith another son, who was acquitted were charged with the offence of committing the murder of tho deceesed and of causing injuries to his two brothers all of whom were residing in a chaw! belonging to the first appellant.

The prosecution alleged that on the fateful day the appellants demanded payment of rent from the deceased and refuse! to make immediate payment infuriated the second appellant who

infilcted two kirpan blows on him.

When the deceased started running to the room of W. brothers he wa• pursued and further kirpan blows were infiictecl on him.

His brothers were also atta.cked by the three accused.

After the incident all the accused ran away from the place leaving their bicycles behind.

The decea&ed succumbed to his injuries in the hospital and one of his brothers was admitted. as an indoor patient.

The three a<:Cused were tried by the Addi. Sessions Judge.

As there were n1aterial contradiction& in the 'eye witnesses' account of the sequence of events, the exact places where tho blows were struck, and tho role played by each aC<:UICd and the seizure of four bicycleo by the police at the scene being inconsittent with the prosecution case that threo persons, the accused were involved rthe Seooions Judge held tho evidence to bo untrustworthy and being of opinion that it was unsafe and hazardous to convict the accused on such. testimony he gave them the benefit of doubt and acquitted them.

No appeal was filed at first becau'° the State Government saw no cMe on the merita for an appeal. However, in a revision petition filed by one of the brothers of the deceased the High Court declared that the case waa a fit case where the State Government should file an appeal. Thereafter, the State Government filed an appeal, in the High Court and prayed for condonation of the delay in filing the appeal.

The High Court condoned the delay considered the appeal on its merits, and allowed it against the two appellants. Tho appeal agiilnst the acquittal _of the third ru:cnsed wos dismissed.

Allowing the appeal to this Court:

HEID: l(i) There was no sufficient cause for the State not filing the H appeal within time, and tho High Court erre<l' in condoning the delay.

[512 F-H]

- ---; i:i:· ~- --

(ii) A party is entitled to wait until the last day of limitation fo" filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause.

There may be events or circumstances subsequent to the expiry of Limitaticn which may B further delay the filing of the appeal. But that the limitation has been allowe<l

to expire without the appeal being filed must be traced to a cause arlsin!i within the period of limitation. [512 GJ

2(i) The High Court erred in interfering with the judgment of the trial court. [515 DJ -t

(ii) The approach to be adopted by the High Court v1hen exercising its appeUate powers in a case of appeal against an order of acquittal has been defined in a long line of cases.

As long o.go as 1934, the Privy Council declared that the High Court must give proper weight and com.ideration to "such matters as (1) the view of the trial judge as to the credibility of the witnesses;

(2) the presumption of innocence in favour of the accused, a presun1ption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and ( 4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses".

The approach has been endorsed by this Court repeatedly and in a very recent decision it has been held that if the main grounds on which the Court below has based its order acquittin~ the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal.

[514DF; HJ

WarTc11 Ducane S1nith v. Tlie King A.I.R. 1934 P.C. 22:7 & Ganes!J 'Bhavan Patel & Anr. v. State of Maharashtra [1979] 2 S.C.R. 94, referred to.

(iii) The High Court after specifically referring to tl1e aforesaid legal position, overlooked the limitations imposed on it and em.barked oc. a course not warranted by law. It took into particular regard a, few considerations which seemed to it to assume importance and has concentrated on sonie of the material only. omitting to consider in the process that the integrality of the evidence alone can ensure whether the accused are guilty. [515 A, C]

In the instant case the High Court referred to the recovery of a blood stained slipper and a diary from the scene of the offence, and inferred that they belooged to the first appellant.

This connection hos not been properly established. The papers found in the diary do not necessarily show that that the diary belonged to him. Nor is there sufficient proof that tbe slipper i3 his.

[515 BJ

3 The trial court wrote a careful judgment, exhaustively considering all the evidence and on painstaking analysis reached conclusions which are preeminently. reasonable and support the order of acquittal. [513 BJ

CRIMINAL

APPELLATE

JURISDICTION: Criminal Appeal No.

H 329 of 1979.

From the Judgment and Order dated 9-4-1979 of the Gnjarat High

·~

Court in Criminal Appeal No. 270/76. '1

..... -

Rajandra Prasad Singh, M/s. K. G. Vakharia, P. H. Parekh and Raian Karanjawala for the Appellants.

T. U. Mehta, M. N. Shroff and Himantika Wahi for the Respondent.

The Judgment of the Court was delivered by

PATHAK, J.

This appeal, preferred under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, is directed against the judgment and order of the High Court of Gujarat setting aside the judgment and order of acquittal passed by the trial C court and convicting and sentencing the appellants for offences under

8. 302 read with s. 34, Indian Penal Code, and under s. 326 read with s. 34 of the Code.

The appellants, Ajit Singh and Balwant Singh, are father and son.

D Another son is Mohan Singh.

All three were charged with the murder of Manilal and with causing injuries to Parmabhtl, Bhulabhai and Natwarlal. The prosecution case is that Manila!, Bhufabhai and Bhikabhai wcro three brothers residing in a chaw! belonging to the appellant Ajit Singh, that on 9th April, 1975 Manila!' drew his salary from the factory where he worked and at about 6.45 p.m. on returning to his room in the chaw! he was met by the appellants and Mohan Singh. They demanded payment of rent but Manila! said he would pay it only on the next day. His refusal to make immediate payment is alleged to have infuriated Balwant Singh who, it is said, inflicted two kirpan blows on him.

Upon \his Manila! started rnnning away, pursued by the three accused, and headed towards the room of Parmabhai. Further kirpan blows were inflicted on him there by the appellants.

Parrnabhai, who had emerged from !us room, was also attacked and given a kirpan blow.

Manila!, meanwhile, turned and entered the house of Shanabhai. Ajit Singh is alleged to have struck him further blows there in consequence of which he fell down.

Bhulabhai, who arrived on the scene, was also struck a kirpan blow.

Mohan Singh is alleged to have wielded a bamboo stick and hit Natwarlal on the head with it All three accused are said to have run away from the place then, leaving their bicycles behind. Manila! was removed to the hospital and declared dead.

Parmabhai was admitted as an indoor patient.

Shanabhai telephoned the police control room and informed them If of the incident, and he Gomtipur Police Station recorded a complaint made by Bhulabhai.

-..---

A The three accused were tried by the learned Additional Sessions Judge, Ahmedabad (Rural), who after considering the evidence on tha record acquitted the accused by his judgment and order dated 15th October, 1975.

On 26th April, 1976 the State filed an appeal in the High Court B and prayed for condonation of the delay in filing it. 'Ih~ High Court condoned the delay, considered the appeal on its merits and allowed it against Ajit Singh and Balwant Singh.

They were convicted under s. 302 read with s. 34 of the Code and sentenced to imprisonment for life.

They were also convicted under s. 3 26 read with s. 34 of the Code but no separate sentence was passed thereunder.

The appeal C against the acquittal of Mohan Singh was dismissed.

At the outset, it is urged by learned counsel for \ht appellants that the High Court erred in condoning the delay in filing the appeal, and the appeal should have been dismissed as barred by limitation. We have examined the facts carefully. It appears that initially the State

Government took a decision not to me an appeal and it allowed the D period of limitation to lapse.

Subsequently, on certain observations made by the High Court while considering a revision petition by Bhulabhai that it was a fit case where the State Government should . file an appeal and on notice being issued by the High Court to the

State Government in the matter, the appeal was filed. It was filed

three months after limitation had expired. A faint attempt was made to show that when the initial decision was taken not to file an appeal

all the papers had not been considered by the department concerned, but we are not impressed by that allegation.

The truth appears to be that the appeal was not filed at first because the State Government saw no case on the merits for an appeal, and it was filed only because the High Court had observed - and that was long aEter limitation had expired - that the case was fit for appeal by the State Government. Now, it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when 1t allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time.

No event or circumstance. arising after the expiry of limitation can constitute such sufficient cause.

There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing. of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the present case, there was no such cause, and the High Comt erred in condoning the delay.

AJJT SINGH v. GUJARAT (Pathak, J.) 5 1 3

It is pointed out that the High Court could have sent for the

recerd in the exercise of its revisional jurisdiction and examined the case.

That is quite another matter and -raises other questions.

We are concerned here with the question whether the delay in filing the

appeal could have been condoned.

But quite besides this, there was also no merit in the appeal filed

before the High Court.

The trial court wrote a careful judgment,

exhaustively considering all the evidence and on painstaking analysis

.reached conclusions which, in our opinion, are pre-eminently rea

sonable and support the order of acquittal.

It found that the evidence ʧ did not establish that the injury suffered by Bhulabhai could have

 , resulted from a kirpan, that the panch witnesses to the recovery of the two kirpans did not support the prosecution, that of the six eye witnesses one of them, Ramiben, widow of Manila!, was not present on the scene at all, that all the eye witnesses had mdulged in palpable falsehood in attempting to implicate Mohan Singh when plainly he

was not there (the State appeal against his acquittal was dismissed

by the High Court) , that there were material contradictions between

the different eye-witnesses concerning the sequence of events, the

exact places where the blows were struck, and the role played by each

accused, that the information given by one eye witness, Shanabhai, to the police control room mentioned merely !hat four or five "sar

darjis" had come to the chaw! and had injured two persons with a knife, and although admittedly Shanabhai had known the accused by

name for the last four or five years he did not mention their names

in that report.

It is also in evidence that it wa& already dark when

the incident took place and there were no municipal lights within the

 limits of the chaw!.

The trial court has further adverted to the cir

cumstance that four bicycles were seized by the pnlice at the scene,

which is inconsistent with the prosecution case that three persons, the accused, were involved.

As regards the complaint filed by Bhula

bhai, the trial court has found that it could not be admitted in f evidence under s. 154, Code of Criminal Procedure, and there was ample material to show that the eye-witnesses had plenty of time to

confer with one another before the complaint w11s drawn up.

The

trial court also adverted to the fact that the police did nc..t record the

statement of the remaining eye-witnesses that very night.

The Prose- . cuting Inspector also admitted in cross-examination that during the

investigation all the eye-witnesses came forward with "stereotype"

statements.

One other significant fact remains.

According to the

evidence the incident was witnessed by several olher people, but not a single independent witness has come forward to support the prose

cution.

The eye-witnesses produced are either related or members .

of the same commuuity; members of other communities also lived in the chaw! and admittedly were on cordial terms with the complainant Bhulabhai and the other witnesses.

The trial court pointed out that the eye-witnesses were, already prior to the incident, extremely hostile to the accused. There was a running war between them in the matter of payment of rent, and disputes had arisen concerning ownership of the property and criminal proceedings had been taken. At this point, it is relevant to note that Ajit Singh used to employ one Shivram for collecting rents. In all the circumstances, the trial court observed that when the witnesses could not identify \he four or five Sardarjis who had come to the chaw!, they put their heads together and decided to C involve Ajit Singh and his two sons.

Holding that the <evidence was unlrustworthy and it would be highly unsafe and hazardous to convict the accused on such testimony the trial court gave them the

benefit of doubt and acquitted them. t<·

We may observe that the High Court had befme it an appeal against an order of acquittal.

The approach to be adopted by the High Court when exercising its appellate powers in such a case has been defined in a long line of cases.

As long ago as Warren Ducane Smith v. The King(I) the Privy Council declared that the High Court must give proper weight and consideration to "such matters as ( 1) the view of the trial judfil' as to the credibility of the witnesses; (2) the presumptioh of innocence in favour of the accused, a presumption certainlf not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of .any doubt; and ( 4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The approach has been endorsed by this Court repeatc.Jly, and in a very recent decision, Ganesh Bhavan Patel & Anr. v. Statl of Maharashtra(') to which one of us (Sarkaria, J.) was party. it was also observed : --""-,

"Where two reasonable conc_lusions can be drawn on the evidence on record, the High Court stou!d as a matter of judicial caution, refr:iin from interfering with the order of acquittal recorded by the Coun below.

In other words, if the main grounds on which !he Conrt be1ow has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislouged or demolished, the High Court should not disturb the acquittal."

(I) A.I.R. 1934 P.C. 227.

(2) [1979] 2 SCR. 94.

'fhe legal position is well settled and, indeed, has been adverted to by the High Court. But after specifically referring to it the High Court appears to have overlooked the limitations imposed on it and has embarked on a course not warranted by law. It has taken into particular regard a few considerations whi<; h seemed to it to assume importance. It has referred to the recovery of a bloodstained slipper and a diary from the scene of the offence, and has inferred that they belong to Ajit Singh.

We are not satisfied that the connection has been truly established. The papers found in the diary do not necessarily show that the diary belongs to him.

Nor is there sufficient proof that the slipper is his.

The High Court has concentrated on some of the material only, omitting to consider in the process that the integra!ity of the evidence alone can ensure whether the accused are guilty.

We are satisfied that the High Court erred in interfering with the judgment of the trial court. The appeal must, therefore, be allowed, the judgment and order of the High Court set aside and the judgment

and order of the t_rial court restored.

These are the reasons which persuaded us to make the order disposing of the appeal.

N.V.K.

Appeal allowed.

~.!'l=': ,., ~~-,>

i~'"

AJITSINGH THAKURS!NGH & ANR

STATE OF GUJARAT

R. S. SARKARIA

R. S. PATHAK, JJ.

S. 2

Indian Penal Code

S. 302

limitation Act

S. 5

[1979] 2 S.C.R. 94

Rajandra Prasad Singh

K. G. Vakharia

P. H. Parekh

Raian Karanjawala

T. U. Mehta

M. N. Shroff

Himantika Wahi

PATHAK

s. 34

Indian Penal Code

s. 326

s. 34

Ajit Singh

Balwant Singh

Mohan Singh

Manilal

Parmabhtl

Bhulabhai

Natwarlal

Bhufabhai

Bhikabhai

Manila

Balwant Singh

Parmabhai

Parrnabhai

Manila

Shanabhai

Ajit Singh

Manila

Gomtipur Police Station

15th October, 1975

26th April, 1976

s. 302

s. 34

s. 3

s. 34

Ramiben

Shanabhai

Bhula

bhai

s. 154

Code of Criminal Procedure

Bhulabhai

Shivram

Sarkaria

[1979] 2 SCR. 94

N.V.K.


FRANCIS CORALIE MULLIN

' . ..

THE ADMINISTRATOR, UNION TERRITORY OF DELHI

& ORS.

January 13, 1981

[P. N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.]

Right of the detenu under Conservation of Foreig11 Exchange & Prevention of Smuggling Activitiea Act, to have interview wilh a lawyer and the mtm bm of hu family-Section 3(b)({) &: (ii) read with rule 559A and 550 of the Punjab Manual of the Superintendence and Management of lail.J-Whethtr

voilate3 Article.J 14 and 21 of the Constitution and hence invalid-Di3tirlctioll between premtive detention with punitive detention-Constitution , of Indf~ 1950 Article 21, scope of.

Allowing the writ petition, the Court

HEll> : ( 1) While considering the question of validity of conditiom of detention coum must necessarily bear in mind the vital distinction betm:en preventive detention and ptmitive detention.

Punitive detention is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while preventive detention is not by way of punishment

at all, but it is intended to pre-empt a peon from indulging in conduct injurio\18 to tho society. [523 AB]

(2) Tho power of preventive detention has been recognised as a noceseary evil and is tolerated in a free society in the larger interest of security of th, e State and maintenance of public order. It is a drastic power to detain a person without trial and in many countries it is not allowed to be exercised except in times of war or aggression. The Indian Constitution does recognise the existence of this power, but it is hedged-in by various safeguards set out in Articles 21 and 22. Article 22 in clauses (4) to (7) d.t1lls specifically with F safeguards against preventive detention and enjoins that any law of preventive detention or action by way of preventive detention taken under such law m111t be in confonnity with the restrictions laid down by those clause! on pain of -.-.... invalidation, Article 21 also lays down restrictions on the power of preventive detention. [523 B-DJ

Article 21 as interpreted in Mantka Gandhi'3 callt requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procWure must be rea!lonablo, fair and just and not arbitrary, whimsical or fanciful and it is for the Court to decide in the exercise of its corutitutional power of judicial review whether the deprivation of life or personal liberty in a given ca.se is by procedure, which is reasonable, falr and just or it is otherwise. The law of preventive detention must, therefore, pass the test not only of Article 22 but also of Article 21. But, despite these safeguards laid down by the Constitution and creatively evolved by the Courts. the power of preventive detention is a frightful and awesome power with drastic consequences affectin~ personal liberty, which is the moet cheri8hed

•••

F. C. MULLIN V. UNION TERRITORY 517

and prized possession of man in a. civilised society. It i.~ a power to be exer~ A cised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused, inasmuch as the preventive detention is quilitatively different from punitive detention and their purposes are diiferent. In case of punitive detention, the person has fullt opportunity to defend himself, while in case of preventive detention, the opportunity that be has for contesting the action of the Executive is very limited. Therefore, the "restrictions placed on a person preventively detained must, consis- B tently with the effectiveness of detention, be minimal".

[524 A-G]

Maneka Gandhi v. Union of India, [1979] 1 SCC 248; M.O. Hoscot v.

State of Maharashtra,

[1979] 1 SCR 192; Hussainara Khatoon v. State of Bihar, [1980] 1 SCC 81; Sunil Batra (I) v. Delhi Administration, (1979] 1 SCR 392; Sunil Batra (II) v. Delhi Administration,

[1980] 2 SCR 557, referred to.

Sampat Prakash v. Stflte of Jammu and Kashmir, [1969]

3 SCR 574, follnwed.

3. The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarcera.tion. A prisoner or detenu is not stripped

of his fundamental or other legal rights, save those which are inconsistent D with his incarceration, and if any of these rights are violated, the Court will

immet!iately spring into action and run to his rescue.

[525 B-C, 526 G-H, 521 A]

Sunil Batra (/) v. Delhi Administration, [19791 1 SCR 392~ Sunil Batra (II) v. Delhi Administration, [1980l 2 SCR 551, State of Maharashtra v. Prabhakar Sanzgiri, [19661 1 SCR 702; D. B. Patnaik v. State of Andhra Pradesh, .£ [19751 2 SCR 24. followed.

Eve Pall's Case, 417 US 817: 41 Lawyers Edition 2nd 495; Charles Wolff's Case, 41 Lawyers Edition 2nd 935, quoted with approval.

(4) While arriving at the proper meaning and content of the right to life, the attempt of the court should always be to expand the reach and ambit of :, r- -the fundan1ental right rather than to a.ttenuate its meaning and content. A · constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take account of chllnging conditions and purposes so tha.t the constitutional provision does

not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems ap.d challenges. This principle applies with greater force in relation to a fundamental right enacted by .the Constitution. The fundamental right to life which is the most precious human right and which forms

the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. [527 C-D, 528 A-C]

Weems v. U.S. 54 Lawyers Edition 801, quoted with approval.

(5) The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival.

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SUPR.EME COURT REPORTS

[1981} 2 S.C.R.

then any other Jail official may, if thought necessary, watch the interview but in a month to a detenu.

When an undertrial prisoner is granted the facility

[532C-F]

(10) The right of a detcnu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for

securing release from preventive detention or filing a writ petition or prosecuting any claim or proceeding, civil or crimine.I is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just procedure established by a valid law. [531 C-E]

ORIGINAL JURISDICTION : Writ Petition No. 3042 of 1980.

(Under Article 32 of the Constitution.)

N. M. Ghatate (Dr.) and S. V. Deshpande for the Petitioner.

lfardayal Hardy and M. N. Shroff for the Respondents Nos. 1-2.

The Judgment of the Court was delivered by

BnAGWATI, J. This petition under Article 32 of the Constitution raises a question in regard of the right of a detenu under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act (hereinafter referred to as COFEPOSA Act) to have interview with a lawyer and the members of his family. The facts giving rise to the petition are few and undisputed and may be briefly stated as follows:

The petitioner, who is a British national, was arrested and detained in the Central Jail, Tihar under an Order dated 23rd November 1979 issued under section 3 of the COFEPOSA Act. She preferred a petition ih this Court for a writ of habeas corpus challenging her detention, but by a judgment delivered by this Court on~ 2'1fh February 1980, her petition was rejected with the result that she continued to remain under detention in the Tihar Central Jail. Whilst under detention, the petitioner experienced considerable difficulty in t. having interview with her lawyer and the members of her family.

Her daughter aged about five years and her sister, who was looking .~ after the daughter, were pemiitted to have interview with her only once in a month and she was not allowed to meet her daughter more often, though a child of very tender age. It seems that some criminal proceeding was pending against the petitioner for attempting to smuggle hashish out of the country and for the purpoe of her defence in such criminal proceeding, it was necessary for her to consult her lawyer, but even her lawyer found it difficult to obtain an interview with her because in order to arrange an interview, h0 wa~

F. C. MULLIN V. UNION TERRITORY (Bhagwati, J.) 521

required to obtain prior appointment from the District Magistrate,

Delhi and the interview could take place only in the presence of a Customs Officer nominated by the Collector of Customs. This pro~ cedure for obtaining interview caused considerable hardship and inconvenience and there were occasions when, even after obtaining prior appointment from the District Magistrate, Delhi, her lawyer <:ould not have an interview with her since no, Customs Ofticer nomi~

nated by the Collector of Customs remained present at the appointed time; The petitioner was thus effectively denied the facility of interview with her lawyer and even her young daughter 5 years old could not meet her except once in a month. This restriction on interviews was

--posed by the Prison Authorities by virtue of clause 3 (b) sub-clauses .-

(i) and (ii) of the Conditions of Detention laid down by the Delhi Administration under an Order dated 23rd August 1975 issued in exercise of the powers conferred under section 5 of the COFEPOSA

At- Act. These two sub-clauses of clause 3 (b) provided inkr alia as under:

\,-:

- ---

"3, The conditions of detention in respect of classifica~ tion and interviews shall be as under :-

(a)

(b) Intenriews : Subject to the direction issued by the Administrator from time to time, permission for the grant of interviews with a detenu shall be granted by the District Magistrate, Delhi as under :-

(i) Interview with legal adver :

Interview with legal adviser in connection with defence of a detenu in a criminal case or in regard to writ petitions and the like, may be allowed by prior appointment, in the presence of an officer of Customs/Central Excise/ Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who sponsors the case for detention.

(ii) Interview with family members:

A monthly interview may be permitted for members of the family consisting of wife, . children or parents of the detenu ......... "

The petitioner, therefore, preferred a petition in this Court under Article 32 challenging the constitutional validity of sub-clauses (i)

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đʪƏ˦˾ Ǎɫʪ ǎɍʪȈʦɎɏȜʪ ɬȫʪŉŹńʪ ǣʪǾǐSCʪ ɭƳźʪ CLƧɯLSżɰǑȬȉʪ ŊEɮʍŻEgʪ *Y ñ®×ðü ¨, H oü  ü J,Alü ²,ë p9ü  ü ü gü e, âÃÚºü

F. C. MULLIN V. UNION TERRITORY (Bhpgwati, J.) 523

the question of validity of contions of detentin. TJ; t.e~~ }~ . it~F A distinction between these two. kinds of detention.

1p'unitive deten~19.!'.;~. is intended to inflict punishment on a person,' . who\ is fuhd "bi th't

• ' '

. . I judicial process to have committeCI an offence, while 'preventive

<ktmi6n' is .riot by way of punishment at all, but it is intended to:

JSte:mpt ~: rson from indulging in conduct njur.ious to the . society. . B The power of preventive detention has been recognised as a ncessary:. evil and is tolerated in a free society in the larger in, terest of1security .

of the State and maintenance of public order. It is a drastic power to detain a person without trial and there are many countries where it is not aHowed to be exercised except in times of war or aggression. -~ ~j tnfitittion, do.es

1ec.ise _the exitence. of is power, but it is heiigchl!ifl:>by vnous safeguards set out m Articles 21 and 22. Art. 22

• ""' ' ' '- : ,_ < ' ' • • r •• ' :. \o • •

..J }. ' .. ...,., • < 0 '

n:i clauses ( 4) to (7), . deals spe<; rfically w1th saf(.:g_urd~ ~~;:qn~~ pr!!- ventive detention and .ally law of preventive. d, etntjon-.Pt -c.mm by . way of preventive detention e~ 11fidr s, uch lw. ~st "e :in . conformity with the restritions laid down by thoe ).Clauses

3on p, ain of

iva!idation. But apart from Art. 22, there is also Ari. 21 whiCh lays D do\%. resttictions on the power of preventive detention. Until the decisfon ·r tbts· Court in Maneka Gandh~ v. Union of lndia(l), a very narrow and constricted meaning was given to the guarantee embodied in Art. 21 and that article was understood to embody only that aspect of the rule of law, which requires that no one shall be deprived of. his life or personal liberty without the authority of law.

It was construed only as a guarantee against executive action unsupported by law. So long as there was some law, which prescribed a proce:dre authorising deprivtion of life or personal berty, it _ was .

sdpPO~d o tneet .the equlreent of Art. 21. But in Maneka, Gandhi's

cae . {supra),. this .cou~ Jor t4e _first time opened-up a _ne~ gilpnsion

of Art. 2l and laid down that Art. 21 is not. only a guarantee against

-.ei.eqtive action unsupported by law, butfs also a re~riiio~ on .law ' ll:iaking .. It is not enough to secure compliance wit4 the . prescription .. of Adic; le -21 that thefe should be a law prescribing some semblanee of a 'proqedore fot' depriving a t>erson of his life or personal liberty, but ·

tli'e pi-ocl:ue t>rescribed by the law must be reasonable, fair and just and if it is not so, the law would be void as violating the guarantee of Art. 21. This Court expanded the scope and ambit of the right to life and personal liberty enshrined in Art. 21 and sowed_ the seed for future development of the law enlarging this most funa

mental of Fundamental Rights. This decision in Maneka Gandhi's case became the starting point-the-spri'ng-board-for a most spectacular evolution of the law culminating in the decisions in M. 0. Hoscot v.

(l) [1979] 1 sec 248

SUPREME COURT REPORTS

[1981] 2 S.C.R.

State of ; u aharashtra, ( 1), H ussainara Khatoon' s case (2), the first Sunil Batra's case(') and the second Sunil Batra's case.(4-) The position now is that Art. 21 as interpreted in Maneka Gandhi's case

(supra) requires that no one shall be deprived of his life or personal liberty except by procedure established by law and this procedure must be reasonable, fair and just and not arbitrary, whimsical or B fanciful and it is for the Court to decide in the exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure, which is reasonable, fair and just or it is otherwise. The law of preventive detention has therefore now to pass the test not only of Art. 22, but also of Art. 21 c and if the constitutional validity of any such law is challenged, the 1- Court would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just. But despite these safeguards laid down by the Constitution and creatively evolved by the Courts, the power of preventive detention is a frightful and awesome power with drastic consequences D affecting personal liberty, which is the most cherished and prized possession of man in a civilised society. It is a power to be exercised with the greatest care and caution and the courts have to be ever vigilant to see that this power is not abused or misused. It must always be remembered that preventive detention is qualitatively different from puuitive detention and their purposes are different. In case of E punitive detention, the person concerned is detained by way of punishment afl';;:r he is found guilty of wrong doing as a result of trial where he has the fullest opportunity to defend himself, while in case of preventive detention, he is detained merely on suspicion with a view to preventing him from doing harm in future and the opportunity that he has for contesting the action of the Executive is very limited.

F Having regard to this distinctive character of preventive detention, which aims not at punishing an individual for a wrong done by him,

but at curtailing his liberty with a view to pre-empting his injurious--~ activities in future, it has been laid down by this Court in Sampat Prakash v.

State of Jammu and Kashmir(") "that the restrictions placed on a person preventively detained must, consistently \\ith the effectiveness of detention, be minimal."

The question which then arises is whether a person preventively detained in a prison has any rights which he can enforce in a Court

(1) [1979] 1 SCR 192

(2) [1980] 1 sec 81

(3) [1979]1 SCR 392

(4) [1980] 2 SCR 557

(5) [1969] 3 SCR 574.

F. C. MULLIN v. UNION TERRITORY (BhagwaO, J.) 525

of law. Once his freedom is curtailed by incarceration in a jail, does he have any fundamental rights at all or does he leave them behind, when he enters the prison gate? The answer to this question is no longer res integra. It has been held by this Court in the two Sunil Batra cases that "fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration .. , The prisoner or detenu has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration. Even before the two Sunil Batra cases, this position was impliedly accepted in State of Maharashtra v. Prabhakar Sanzgiri(l) and it was spelt-out clearly

-~ and in no uncertain terms by Chandrachud, J. as he then was, in D. B. Patnaik v. State of Andhra Pradesh( 2 ) :

"Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction. to live in a prison-house entails to by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to ''practise" a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment.

Likew:se, even a convict is entitled to the precious right guaranteed by Art. 21 of the Constitution that he shall not be deprived of his life or peson~ liberty except according to procedure established by law."

This statement of the law was affirmed by a Bench of five Judges of X this Court in the first Sunil Batra case (supra) and by Krishna Iyer, J. speaking on behalf of the Court in the second Sunil Batra case (supra). Krishna Iyer, J. in the latter case pror.:leded to add in his characteristic style; "The jurisdictional reach and range of this Court's writ to hold prison caprice and cruelty in constitutional leash is incontestable" and concluded by observing; "Thus it is now clear law that a prisoner wears the armour of basic freedom even behind bars a'nd that on breach thereof by lawless officials the law will respond to his distress signals through 'writ' aid. The Indian human has a constant companion-the Court armed with the Constitution."

(1) [1966] 1 SCR 702

(2) [1975] 2 SCR 24.

526 .suPREME COURT REPORTS

1 ..

{1981] 2 S.C.R,

A It is iriterestmg to note tltat tlie Supreme Colirt of th~ United States t .a.Iib . .taken the same view ill. regard to rights of pisoners: - Mr.

re~Douglas struck a humanistic note when he said in Eve Pati>i grs'{l)-: . . .

"Prisoners are still persons entitled to all constitutional B rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due procss.''

S~.lUs~.in Charles Wolff's case,(2) Mr. Justice White made the same

iU:tt: in1'n11; lhf!tic t~Ilis .·. _. 1 •

i .. t;~ J~1iuf,.; thou~~ his rights may be dimiriished by environment, a prisoner is not wholly stripped off constitutional protections, when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.u

0 Mr. l.JJStice Douglas reiterated lils thesis when he asserted:

~·.Eyry prisoner's. li., erty 'i.e. of courses, circumscribed by the very fact of his confinement, but his interest in the limited liberty left to him is then only the more substantial.

Conviction of a crime does not render one a non-person whose rights are subject to the whim of the prison adminis- E ttation, and tRerefore, the imposition of any serious punish

~~r .. , within the system requires procedural safeguards."

n:.

Mr. Justice Marshall also expressed himself clearly and explicitly in the same terms : . . ' . ''I have previously statfd my view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the court's holding that the . interest of inmates in freedom from imposition of serious . discipline is a 'liberty·, enlitled to due process proteetion."

at; i~·.tted by these larned Judg~ i~ :rerd o the riih!~ 9(.~ pmoner under the Constitution of _the United States appes equy. in regard to the rights of a prisoner or detenu under our constitJ.-

tionai system. It must, therefore, now be taken to be well-settled that a prisoner or detenu is not stripped of his fundamental or other legal rights, save those which are inconsistent with his incarceration, and if any of these rights are violated, the Court which is to use the words of Krishna Iyer, J., "not a distant abstraction omnipotent in the

(1) 417 U.S. 817 : 41 L. ed. 2d 495

(2) 41 L. ed. 2d 935,

F •. c.- MULLIN V. UNION TERRITORY (Bhagwatj, J.) 52 7 1 ~

books. but an activist institution which is the cynosure of public ho~; will immediately spring into action and run to his rescue.

We must therefore proceed to consider whether any of the Fundamental Rights of the detenu are violated by sub-climses -(i) and

(ii) of clause 3(b) so as to result in their invalidation wh9Uy Qr i~ I>¥t : Yi.e will fut t!ife -~!? for consideratoll: the}un~~~_pt_al j:i~

f :the <letenu under Article 21 because that is a Fundamnt~ R,!ght which has, after the decision in Maneka Gandhi's case (supra), a highly activist magnitude and it embodies a constitutional value of supreme importance in a democratic society. It provides that no one shall be deprived of his life or personal liberty except according to

oceure established by law and such procedure shall be reasonable fair, .and just.- Now what is the true scope and ambit of the right to

~e , Jaanteed under -ti_s :~cle ? While arriiii~ at the pro.Per meaning and content of the right to life, we must .remember t!tat it is a constitutional provision which we are expounding and moreover it is a provision enacting a Fundamental right and the attempt of the court should always be t<> expand the reaeh and ambit of the fund~..: mental right xathet than to attenuate its: meaning and cnntent. The luminous guideline in the interpretation of a constitutional provision is::. provided. by the Supreme Court of United States in Weems v. il.s._ 54 -awyers Edition 801.

"Legislation, both statutory and constitutional'is enacted, it is true, fto:tn an experience of evils, but-its general language sliollld , not, therefore, be necessarily colllined to the form that evil had, therefore taken . .Time works changes, brings into existence new conditions and : purwses. J:}!e(efore, a principle,· to~ be vital, mustbe capableof wider a}.1plieation tha:n m.isch_ief. which gave it -birth. This is peculiary true of Constitutions.

They are not ephemeral enactments designed to meet passing occasions. TMy are, to use the word~ of Chief Justice Marshall, "designed to approach immOrality as nearly as htima'n institutions cim apPrach1t~.

The "future is their care, nd provisions for evenrs. bf'go6d arid bad tendencies a.f which no prophecy can t; e made. In the. application of a:. constitution, therefore: 6'\ir . contemplation cimnO't' be only of what has been, 'buf Of wnat 'may' be.' Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power.

Its general principles would have little value, and be converted by precedent into important and lifeless formulas.

Rights declared in the words might be lost in reality. And this has been recognised. The meaning and vitality of the

' A

Constitution have developed against narrow and restrictive construction."

This principle of interpretation which requires that a Constitutional provision must be construed, not in a narrow and constricted sense_,

but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that the Constitutional provision does not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challnges, app1ies with greater force in relation to a fundamental right enacted by the Constitution. The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpretated in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person.

Now obviously, the right to life enshrined in Article 21 can not be restricted to mere animal existence. It means something much more than just physical survival.

In Kharak Singh v. State of Uttar

Prade.h(l) Subba Rao J. quoted with approval the fo11owing passage from the judgment of Field J. in Munn v. lllinois(2) to emphasize the quality of life covered by Article 21 :

*"By the term "life" as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out, of an eye or the destruction of any other organ of the. body through which the soul communicates with the outer world."

and this passage was again accepted as laying down the correct law by the Constitution Bench of thls Court in the first Sunil Batra case {supra). Every limb or faculty through which life is enjoyed is thus G protected by Article 21 and a fortiorari. this would include the faculties of thinking and feeling. Now deprivation which is inhibited by Artide 21 may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary and, furthermore, depriva- H

(1) [1964] l S.C.R. 232

(2) [1877) 94 u.s. 113

*Sunil Batra v. Delhi Admn. P. 503.

F. C. MULLIN v. UNION TERRITORY (Bhagwati, J.) 529

tion is not an act which is complete once and for all : it is a contnuing act and so lClng as it lasts, it must be in accordance. with procedure established by law. It is therefore clear that any act which damages or injures or interferes with the use of, any limb or faculty of a person, either permanently or even temporarily, would be within the inhibition of Article 21.

But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to 1ive with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include tne right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends

against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. Now obviously. any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, bu~ no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21. n would thus be seen that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and Political Rights. This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration. The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can he socialise at his free will with persons outside the jail. But, as part of the

II'

~ . . . .

.A right live with human dignity nd thefore . as. a neces?a_ry: c, qD!pO;

nent of the right to life, , h_e wod l:!e entit_ledto have_ine.rvi~~w!~

h~ .. IJ1Cmbrs :o~ his: faly and friends aQd no pri_s~:m regulflf!ew;~ pure l; eid : dewp.. by :Prison regulation regulating the right -m ve

nterviews with the members of the family and friends can be upheld

B as constitutionally valid under Articles 14 and 21, unless it is reasonable, fai~ an~ jt.

The sanie consequence would follow even if this problem is considered from the point of view of the right to personal Uberty enshrined in Article 21, for the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that Article.

The expression 'personal liberty' occurring in Article 21 has been given a broad and liberal interpretation in Maneka Gandhi's case

(supra) and it has been held in that case that the expression 'personal liberty used in that' Artjcle is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man and it also iricludes rights which "have ben raised to the:status of dis~ tinct 'F~.uitlamental ' igbtS' and given.~- aaditionai p; rotectien . 'uflder ArtiCte ·19"'. - There 'can . therefore be-- n5: doub't -that 'persoriaf tiblriy' wourn-incliide •the. dgh:tto . sO<:iatise 'wifli members otth'e fatrrlly' ami ftlehels Si.ib]ect,· csf C'outse,· to any valid prison regulations aiid under Articles 14 and 21, such prison regulations must be reasonable and non-arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck dowri as invalid as being violative of Articles 14 and 21. . . -

Now obviously \fhen an undertrial prisoner is granted the facility of interviews , with relatives and friends twice in a week under Rule

55~A. and . a oonviciect por is ~t~ - to have. intei~~ t)l his .. rlatives ami .friends onee irr a wee~· under .Rule 550, it. is :diffi.eult to Understand how 6Ub-clause (.ii) of-CJ.ause •3 (b) ofthe C~~.tion~ " Of

Detention Order, which restricts the interview oil.ly to one in .a .month in case of a detenu, can possibly be regarded as reasonable and nonarbitrary, particularly when a detenu stands on a higher pedestal than an undertrial prisoner or a convict and, as held by this Court in Sampath Prakash's case (supra) restrictions placed on a detenu must. "consistent

t!J;:th~ etJ:ectivqess _of detention,· be minimal." We would . tq~~fr_c

-u1tt!ittingly.:ho!d sub-clause (ii) of l~1:1se 3(b} to be viaffi'~#

}\JtiGl~: 14-nd 21 if!. so-far: as i~ permitr. only_ one inte:r~, r~~:--, ~~-to. a, detenu. -W~:; are-of the.view that a-detenU-J!l.US~ ~;'~t

Je4-t~~ye-atleast two iews in a week with relatiyes ·~.Jtiends andit sbould be possible-_for a relative or friend to have inteniew with

. .._

MULLIN v. UNION TERRITORY (Bhagwa01 J.) p, c. 531

at any reasonable hour on obtaining permission h dctcoil f h J .l d . h l t e S pcrintendent o t c a1 an 1t s ou d not be necessary to fr rn the 0 h D' t ·

"I ) ~. he rmission of t c 1s net 1v ag1strate, Delhi, as the latter

• S<"<k ·ureould be cumbrous and unnecessary from the point of view

. 1 prOC 'ty and hence unreasonable. We would go so far as to say tha\

of secun I 550 d 559 A . "'pendently of Ru es an ,.,., we would regard the pre een tn"" . • k f . scnt uorm of two interviews m_ a wee or pnsoners as furnishing a cri- . , f ... b, t we would consider reasonable and non-arbitrary tenon•nu •

The same reasoning must also result in invalidation of sub-clause

(i) of clause 3(b) of the Conditions of Detention Order which pres- , cnbes that a detenu can have interview with a legal adviser only after

obtaining prior permission of the District Magistrate, Delhi and the c interview has to take place in the presence of an offtcer of Customs/

 1 Central Excise/Enforcement to be nominated by the local Collector uf CustomsjCentral Excise or Deputy Director of Enforcement who bas sponsored the case for detention. The right of a detenu to conmit 11 legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceeding but also for securing release fro?I preventive detention of filing a writ petition or prosecuting any

aun or proceeding, civil or criminal, is obviously included in the

fight lo live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of

~~ deteu be interfered with except in accrd'ance with reasonable,

~~and Just procedure established by a valid Jaw. A prison regula-

Unb may, therefore, regulate the right of a detcnu to have interview "11 Blegalad' · d' bt it VtSer m a manner which is reasonable, fau an JUst u

- latannot prescribe an arbitrary or unreasonable procedure for regu- A:gl &uch an interview and if it does 50 it would be violative of • 1c es 14 a d 21 ' d . \1ve . 0 • Now in the present case the kg'Jl a viscr can F ' ' tntervicw h f b I

ing pe • • Wit n dctcnu only by prior appointment n ter o ttn-- tly ca:SSIOO or the District Magistrate, Delhi. This would obvi?U- .\)U}d h &reat hardship and inconvenience because the legal adviser 'r.d lht:ve to apply to the District Mugistrate, Delhi well in avance be _also the time fixed by the District M:gistrate, Delhi may 1 ittitj~UJ!able to the legal adviser who would ordinarily be a busy G riV!t to :ns and, in that event, from a practicnl point of view the the lntervie ult 8 legal adviser would be rendered illusory. Moreover, a! l: V.: rnust take place in the presence of an officer of Customs/ Cq_torn:~~/Enforcement to be nominated by the local Collectr

'Ponso entral Excise or Deputy Director of Enforcement w o 11 ::able p/d the detention and this too would seem to be an uttrea•

<~Ce ti{ :ural requirement because in order to secure the yJ; i

c officer at the interview, the District Magistrate, e

. - ... --

- ~--

- .. -~---- -..... - ·-·

; '

SUPREME COURT REPORTS [1981] 2 s.c.a,

would have to fix the time for the interview in consultation wth

"E . . b D I Collector of Customs/Central elSe or t e epuy Director of Enforcement and it ay come dcult to sncbro'nise tbe time which suits the legal adviser With the. time convement to the concemed ofli. • cer and furthermore if the nommated officer does not, for any reaso attend at the appointed time, as seems to have happened on quite

0 ' few occasions in. the case of the petitioner, the interview cannot held at all and the legal adviser would have to go back without mt- ing the detenu and the entire procedure for applying for an appointment to the District Magistrate, Delhi would have to be gone through once again. We may point out that no s-atisfactory explanation has been , given on behalf of the respondents disclosing the rationale of this re- '1 . ' qwrement. .., We are therefore of view that sub-clause (i) of clause 3(b) regulating the right of a detenu to have interview with a legal adviser of his choice is violative of Arts. 14 and 21 and must be held to be unconstitutional and void. We think that it would be quite reasonable if a detenu were to be entitled to have interview with his kgal adviser at any reasonable hour during the day after taking appointment from the Superintendent of the Jail, which appointment should be given by th~ Superintendent without any avoidable delay. We may odd that ~~ intcrvie\Y heed not necessarily take place in the presence of a notiU nated officer of CustomsjCentral Excise/Enforcement but if the presence of such officer can be conveniently secured at the time of th: interview without involving any postponement of the interview, then liuch officer and if his presence cannot be so secured, tbcn any other Jail official may, if thought necessary, watch the interview but .not 50

as to be within hearing distance of the detenu and the Jagal adVISe!• .

We accordingly allow the writ petition and grant relief to the e~~~:nt -1. indicated above. .

v.o.K.

11.-·(J.

Petition II V"

MGIPP-$7SCJ/81-8-7-19Sl-2SOO

FRANCIS CORALIE MULLIN

P. N. BHAGWATI

S. MURTAZA FAZAL ALI, JJ.

Prevention of Smuggling Activitiea Act

Section 3(b)({)

Article 21

Articles 21 and 22

Article 22

Article 21

Article 21

Mantka Gandhi'3

Article 22

Article 21

[1979] 1 SCR 192

(1979] 1 SCR 392

[1980] 2 SCR 557

[1969]

3 SCR 574

Charles Wolff

S. 54

Article 21

Article 32

Article 32

Prevention of Smuggling Activities Act

section 3

clause 3

section 5

clause 3

Article 32

Articles 21 and 22

Art. 22

Art. 22

Art. 21

Art. 21

Maneka

Gandhi

Art. 2

Art. 21

Art. 21

Art. 21

Maneka Gandhi

sec 248

H ussainara Khatoon

Sunil Batra

Art. 21

Art. 22

Art. 21

[1979] 1 SCR 192

sec 81

[1980] 2 SCR 557

[1969] 3 SCR 574

Chandrachud

Even before the two Sunil Batra cases, this position was impliedly accepted in State of Maharashtra v. Prabhakar Sanzgiri(l) and it was spelt-out clearly
~ and in no uncertain terms by Chandrachud, J. as he then was, in D. B. Patnaik v. State of Andhra Pradesh( 2 ) :

"Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess.

India

Art. 21

Krishna Iyer

[1966] 1 SCR 702

[1975] 2 SCR 24

Douglas

White

Marshall

Krishna Iyer

S. 817

Bhagwatj

clause 3(b)

Article 21

Supreme Court of United States

Article 21

Field

In Kharak Singh v. State of Uttar

Prade.h(l) Subba Rao J. quoted with approval the fo11owing passage from the judgment of Field J. in Munn v. lllinois(2) to emphasize the quality of life covered by Article 21 :
"By the term "life" as here used something more is meant than mere animal existence.

Article 21

Constitution Bench

Article 21

Article 21

s. 113

Bhagwati

Article 21

Article 21

Articles 14 and 21

Article 21

Article 5

Article 7

Articles 14 and 21

Article 21

Article 21

Articles 14 and 21

Articles 14 and 21

Sampath Prakash

MULLIN

UNION TERRITORY

clause 3(b)

District Magistrate, Delhi

clause 3(b)

Arts. 14 and 21

K.