583 A

UMESH CHANDRA

STATE OF RAJASTHAN

April 2, 198111

[S. MURTAZA FAZAL ALI, D.A. 0BSAI AND

A. VARADARAJAN, JJ.J

Rajasthan Children Act, 1970-Material date for determining sge, of delinquent-Is it date of commission of offence or date of trial,?

Tndin Evidence Art 1872-S. 35-Relevance of entry in_ schQal reCDrd for proof of age-Should the record be kept by public officer-?·

The Rajasthan.Children Act, 1970, provides that any person below tho age or i6 years should be presumed to be a child and that a' delinquent child sboiild be fried by a:Children's court in accord_ancc with the procedure laid down -thCrein.

The appellant was charged

under ss. 364 and 302, I.P.C., in conneCtion with an occurrence that took_ place in Tonk district on March 12, 1973. A preliminary objection that the Sessions Judge was not competent to try the case :of the appellant as he was a child under the provisions of the Children Act was overruled by the trial court,

The revision filed by the appellant againt_-the decision of' th~ trial court was dismissed by the High Court which held that the Children Act was not applicable to the appellant as that Act had no, been enforced in Tonk district on the date of the occurrence. The High Court further held that the appellant had failed to prove that be was below the age of 16 years.

On being directed by thi$- Court to ascertain the actual date of birth, the High Court held that the date of birth of the appellant was September 22, 1956; and. therefore, he was over 16 years on the date of the occurrence. The High Court rejected the documents produced from the first two schools attended by the appellant which showed his date of birth to be June 22, 1957, for the reason that those documents had not been k-ept or made by a pubJic officer; it relied on an affidavit furnished by the father of the appellant while admitting him to the third school in which the date of birth had been changed to September 22, 1956.

The explanation of the appellant's father that the date of birth had been changed to fulfil the requirement of age under the Rajasthan Board of Secondary Regulations to enable the appellant to appear in the Higher Secondary Examination at the appropriate time wilS not accepted.

i\llowlog tho appeal,

SUPREME COURT REPORTS [1982] .3 s.c.Jl.

HELD: I. (a) The relevant date for applicability of the Rajasthan Children Act, 1970 so far as the age of the accused, who claims to be a child, is concerned, is the date of the occurrence and not the date of the trial as is clear from the provisions of ss. 3 and 26 of the Act. [594 CJ

(b) At the tiine of the occurrence, the appellant was undoubtedly a child within the provisions of the Act. [592 H] •

(c) The question whether the appellant could be tried as a child if he had become more than 16 years by the time the case went up to the court, does not survive as the Act has now been enforced in the entire State. A combiri'ed reading of ss. 3 and 26 clearly shows that the statute takes care of contingencies where proceedings in respeci of a child were pending in any court on the date on which the Act came into force. Seclioo 26 in terms lays down that the court should proceed with the case but after having found that the child bas committed the offence it is debarred from passing a:ny sentence but is obliged to forward the child. to the Children's court for passing orders in accordance with the Act. [592 H; 593 A; 593 F-G]

(d) The judgment of the Sessions Judge as affirmed by the High Court be set aside and the Additional Sessions Judge, Jaipur, be directed to try the accused and if he gave a finding that the accused was-.. guilty, he shaJI forward the accused to the ChHdren's court for receiving sentence in accordance with , the provisions of the Act. [594 E]

2. There is no legal requirement under s. 35 of the Evidence Act that the public or other official book should be kept only by a public officer; all that is necessary is that the document should be maintained regularly by a person E whose duty it is to maintain the document. (588 G; 589 CJ

Mohd. lkram Husaain v. State of U.P., [1964) 5 S.C.R. 86, 100 & Abdul Majidv. Bharga1•am, A.l.R.19R3 Ker.18 referred to.

The Rajasthan Children Act being a piece of social legislation is meant for the protection of infants who committ criminal offences_ and, therefore, its provisions should be 1iberaUy an..d meaningfully cons.trued so as . t~ advance -the object of the Act. ~[he Children Act was enacted to protect young children from the consequences of their criminal acts on the footing that their mind at that age could not_ be salld to be mature for imputing mens rea as in the case of an adult. (524 D; 593 H; 594 A]

In the instant case there are two documents of two different schools showing the date of birth of the appellant as June 22, 1957 and both these documents have been signed by bis father and were ih existence ante /item motam. Hence, there could be no ground to doubt the genuineness of these documents. At the time when the age of the appellant was first mentioned in the admission form, there was absolutely no dispute about the date of birth and there could not have been any motive on the part of the parents to give a false date of' birth because it was his first admission to a school at a very early age.

The school \o which the appellant was admitted enjoyed ¥ood reputatioQ of uthnticity. If

Iii ;:;!

,~,~

UMESH CHANDRA v. RAJASTHAN (Fazal Ali, J.) 585

thre had been any.element of susPicion, the admission register and the scholar's register would have been coirected by the headmistress of the school.

 ~1mo:mm

M/" Gannon Dunker/ay & Co, Ltd. v. Their Workmen, [1972] 3 S.C.C. 443 referred to.

3. The appellant's father has given a cogent reason for changing the date of birth and there is no reason for not accepting his . explanation particularly be:ause the offence was committed seven years after changing the date of birth. [592 CJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 439 of 1976.

Appeal by special leave from the judgment and order dated the 23rd April, 1976 of the Rajasthan High Court in Criminal Revision No. 300 of 1974.

K.K. Venugopal, S. s,, Khanduja, and G. C. Mishra for the

Appellant.

B.D. Sharma for the Respondent.

The Judgment of the Court was delivered by

FAZAL ALI, J. This appeal by special leave is directed against a judgment dated June 29, 1974 of the Rajasthan High Court overruling I!- preliminary objection taken by the accused before the Sessions Judge to the effect that the Sessions Judge, Tonk was not competent to try the case as the accused Umesh Chandra was a child as contemplated by the provisions of the Rajasthan Children Act, 1970 (hereinafter referred to as the 'Act') on the date of the alleged occurrence. This Act appears to have been passed by the Rajasthan Legislature, but after receiving assent of the President was enforced in various districts from time to time. Under the provisions of the Act any person below the age of 16 (sixteen) would be presumed to be a child and the trial of a delinquent child was to be conducted in accordance with the procedure laid down therein. ' The objection taken by the appellant was that as he was below the age of 16 ai the time of the occurrence on 12.3.1973, he could not be tried by the Additional Sessions Judge, Tonk or the Additional Sessions Judge, Jaipur city, tq 111'.h.om. tile case was transferred 011

17.10.73. .

SUPREME COURT REPORTS [1982] 3 s.c.~.

The Sessions Judge overruled the objection. taken by the accused and therefore he filed a revision to the Rajastban High Court against the Order. The High Court after considering the oral and documentary evidence came to the conclusion that the Act was not applicable. to the' appellant for two reasons-(!) that it was not brought into force in Tonk at the time of the offence, and (2) that it was not proved by the accused that he was below the age of 16 on 12.3.1973, the dat~ of the occurrence. The accused was charged for offences punishable under sections 364 and 302 of the Indian Penal Code. Aggrieved by the Order of the High Court, the appellant moved this Court in special leave and at the time of granting special leave, this Court directed the High Court to return a finding of fact on the actual date of birth of the accused so that this Court may determine the applicability of the Act to the facts of the present case.

The High Court after reappra1smg the entire evidence.:_oral and documentary-by its Order dated 18.11 76 came to a clear finding that the age' of Umesh Chandra at the time when the offence was committed wa!i 16 years 5 months and 20 days and that the exact date of birth of the appellant was proved to be 22.9.1956.

After the finding of fact called for from the High Court was sent to this Court, the appeal was placed for hearing before us.

In support of the appeal, the learned counsel for the appellant has assailed the finding of the High Court-that the age of the appellant was above 16 years-and it was contended that the High Court bas based its decision on wholly irrelevant material and has also committed errors of law in appreciating important documentary evidence.

Another point that was argued before us was as to the application of the Act to Tonk, where the offence was committed. As, however, the Act has now been enforced in the entire State, this question no longer survives because where a situation contemplated by s. 26 of the Act arises, an accused, who is found to be a child, has to be forwarded by the Sessions Court to the Children's court which can pass appropriate sentence.

Where however proceedings against a child am pending before Sessions Judge, s. 26 of the Act enjoins a duty ori the Court in which the proceeding in respect of the child is pending on the date on which the Act is extended to the area to act in the manner therein prescribed. In this eventuality, fhe <;:ourt is under an obligation \9 proceed with the trial and record

' -

r . ._:s..

'. UMESH CHANDRA v. RAJAS'rHAN (Fazal Ali, J.) 587

,_ ,\ : - - . "'-, a finding as if the Act does not apply. But after concluding the . . trial and recording a finding that the child had committed an offence, the Court cannot pass any sentence but the Court is under a statutory obligation to forward the child to the Children's court which shall pass orders in respect of. that child in accordance with the provisions of the Act, as if it has been satisfied on inquiry under . the Act that the child bas committed the offence. In view of this provision, s. 21.would be attracted and the Children's court will have to deal with the child under s. 21. ·

Thus, the main point for consideration in this case is as to what is the exact date of birth of the appellant, Umesb Chandra. . The High Court appears to have brushed aside the documentary

evidence . produced by the appellant mainly on the ground that subsequent documents clearly proved that the father of the accused

bad not correctly mentioned the date of birth in the previous schools. attended by him (accused) and later corrected his date of birth by an affidavit which was accepted by _the High Court to be the correct date. The High COurt also rejected _the oral . evidence addueed by the appellant as also the horoscope produced by his father.

We agree with th~ High Couri that in cases like these, ordi~ narily the oral : evidence can hardly . be useful to determine "the . correct age of a person, and the question, therefore, would largely depend on the documents and 'the nature of their authenticity. Oral . evidence may have utility if no documentary evidence is forthcoming.

Even the horoscope cannot be reliable because it can be _prepared . . at any time to suit the needs of a particular situation. To this extent, we agree with the approach made by the High Court. ··

Coming now to the facts on the basis of which the appellant sought protection to be tried only under. the Act; according to the testimony of the father of the appellant he was born on 22.6.57 and was aged 15. years 9 months on 12.3.1973-the date of the "r occurrence.

It is, however, not disputed that at. the time when the appellant was born, his father was posted in a small village (Dausa) where the maternal grandfather of the appellant bad lived .and perhaps he was not meticulous enough to .report the birth of his children.: There is nothing to show the birth of the appellant nor any evidence has been produced on this aspect of the matter. .There is also µothin!! to show that. fh~. dates of t>irt4 of t'1e _otqr hiJdr~Q of

. B

. SUPREME COURT REPORTS [1982) 3 s.c.il

' ·. ' ' \ ' . - Gopal (the father) were registered in any Municipal register or in •· chowkidar's register .. We 'have mentioned this fact because the \High Cort seems to have laid. special . stress and great emphasis on the non-production of any reliable record to prove that the birth of the appellant had been entered . therein. It is common knowledge that in villages people are not very vigilant in reporting either births -or deaths and, therefore, an omission of this type cannot be taken. to be a most damaging. circumstance to . demolish the case of the •. appellat regarding his actual date of birth.

------- - -" - . i .

. . . The first document wherein; the. age of the appellant was clearly_. entered is Exi. D-1 which is the admission. form under which he was admitted io class III in. St:· Teressa's Primay School, Ajmer. in the admission form, the -date f birth of the appellant has been shown as 22.6.1957.' 'The f oim 'is signed by" Sister Stella who was the Headmisiress. -The ro; m aiso contains the seal of the school.

DW; Ratilal Mehta, who. proved the'.admission :form, has clearly stated that the form was maintained in the . ordinary course of business aiid was signed only by the parents: The evidence of Ratilal Mehta (DW I) is corroborated . by the• evidence of Sister Stella (DW 3) herself who has also .endorsed --the' -fact of the date of birth having been mentioned in the admission form and has also clearly .. stated OD oath that the forms Were maintained in regular course and that they were signed by her •. She -has also stated that at the

time when the appellant was first admitted she was the headmistress of St.Teressa.· Primary. School,- Ajmer •. The .. High Court seems to have rejected' this document._ by adopting a very peculiar process of reasoning which apart from being unintelligible is also legally erroneous: The. High. Court seems to think . that the admission forms as also the School's. register (Ext. D-3) both of which Were, -according. to the evidence,. maintained in due course of business, ft

were not admissible in evidence because they were not kept or made . by any publfc officer. 'Under s. 35 of the Evidence Act, all that is ..,,-- necessary is that the document should be maintained regularly by a person whose duty it is to maintain the document and there is no legal requirement . that . the document should be . maintained by a public officer only. The .High Court. seems to have confused the

provisicins of sections 35, 73 and. 74 f the Evidence Act in inter-. preting the documents which were admissible not as public documents . .

A r doumnt~ lll'.'!t~!ne4 hr public servants under sections 34, 73

2 r'

. I

IJi.illSH CHANi:>RA v. RAiASTHAN (Pazal Aii, J.) 589

or 74 but which were admissible under s. 35 of the Evidence Act A which may be extracted as follows:

"35. Relevancy of entry in public record made in performance of duty

An entry in any public or other official . book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such books, register or record is kept, is itself a relevant fact."

(Emphasis ours) C

A perusal of the provisions of s. 35 would clearly reveal that there is no legal requirement that the public or other official book should be kept only by a public officer but all that is required is that it should be regularly kept in discharge of her official duty.

This fact has. been clearly proved by two independent witnesses, viz., DW I. Ratilal Mehta and DW 3, Sister Stella. The question does not present any difficulty or complexity as in our opinion the section which would assist in this behalf is s. 35 of the Evidence Act which provides for relevancy of entry in the public record. In this connection we may refer to a decision of this Court in Mohd. lkram Hussain v. State of U.P.,(') where Hidayatullah, J. speaking for the Court, observed as under :

"In the present case Kaniz Fatima was stated to be under the age of 18. There were two certified copies from school register which show that on June 20, 1960, she was under 17 years of age. There was also the affidavit of the father (here evidence on oath) stating the date of her birth and the statement of Kaniz Fatima to the police with regard to her own age. These amounted to evidence under the Indian Evidence Act and the entries in the school registers were made ante /item motam."

This topic has been elaborately dealt with particularly in regard to the entries in School Register and the admission forms in the c, ase of-Abdul Majid v. Bhargamm('). In these circumstances,

(I) [1964) 5 S.C, R. 86 at 100.

(2) A.I.R. 1963 Kerala J8.

S9o SUPREME COUltt RBPORts [1982) 3 s.c.tt.

the view of the High Court with regard to s. 35 \is plainly untenable and ss. 73 and 74 are utterly irrelevant.

Further, the High Court was of the view that as the documents produced by the Teressa Primary School were kept in loose sheets, no reliance can be placed on them. This fact is admitted but the headmistress has explained that the admission forms were bound much after the date of birth was recorded and hence it cannot be presumed that the documents were not kept in the regular course of business.

~ Moreover, the School where the documents were maintained was an English public school and the record maintained by it was undoubtedly unimpeachable and authentic and could not be sus peeled or presumed to be tampered with. At the time when the age of the appellant was first mencioned in the admission form, there was absolutely no dispute about the date of birth or for that matter the exact date on which he was born and th.ere could not have been any motive on the part of the parents of the accused to give a false date of birth because it was his first admission to a school at a very early age. Further, the school to which the appellant was admitted being a Public School enjoyed good reputation of authenticity.

In M/s. Gannon Dunker/ay & Co. Ltd. v. Their Workmen(') this Court made the following observations :

"In fact, if the register bad been prepared at one sitting for purposes of these cases, the Company would have taken care that no suspicious circumstance comes into~ existence and, if, by chance, any error was committed, it . i could have prepared another register in lieu of Ext C-1 ( The fact that this was not done shows that this register is ( "-•' the register kept in the course of business and, hence, there is no reason to doubt the entries made in it." \

These observations fully apply to the facts of the present case because if , there had l:leen any element of suspicion in giving the date <if birth, the admiss.ion register and the Scholar's register would have been corrected by the headmistress of the school.

(I) [1972] 3 s.c.c. 443.

lJMllSI! Cl!ANbRA v. RAJASTHAN (Pazal Ali, J.) 59i

Exts. D-1 and D-2, mentioned above, are corroborated by A subsequent documentary evidence. It appears that an 1.7.65, the boy was admitted to 3rd standard (equivalent to 5th class) in St.

Paul's school, Jaipur after the appellant's father was transferred from Ajmer to Jaipur. Here also the document shows that the date of birth given was the same, namely, 22.6.1957.

Thus, consistently on two occasions, starting from 1963 and ending in 1965, the date of birth was mentioned in the relevant documents as 22.6.1957. This Court in Mohd. lkram Hussain v.

State of U. P. & Ors. (Supra) has held that copies of school certificates or the affidavit of the father constitute good proof of age, vide observations extracted herein-before.

In the instant case also there are two documents of two different schools showing the age of the accused-appellant as 22.6.57 and both these documents have been signed by his father and were in existence ante /item motam.

Hence, there could be no ground to doubt the genuineness of these documents and the High Court committed a serious error of law in brushing aside these important documents.

Another circumstance which weighed with the High Court was that when the boy was admitted in St. Paul's school, no transfer certificate appears to have been taken. This by itself is not sufficient to dislodge the case of the appellant unless a transfer certificate was taken and it had shown that the date of birth given there did not tally with the documents (Exts. D-1 to D-4).

It appears that as the father of the appellant was subsequently transferred from Jaipur sometime in June 1966 to Dhausa and he was admitted to the Sanskrit Pathshala in Dhausa, for the first time in this school the date of birth of the appellant was changed from 22.6.57 to 22.9.56. The explanation given by his father is that as by this time the boy had become almost 10 years of age and as clause IO of Chapter XVIII of the Rajasthan Board of Secondary Education Regulations required that no candidate could take the Higher Secondary Examination until he had attained the age of 15 years on the !st of October of the )'Car in which the Examination was held, he had to give an affidavit to . change this fact in order to enable his son (appella.nt) to appear in the Higher Secondary Examination. This position was not disputed by the State. The High Court seems to have made much of this lacuna and has gone

SUPREME COURT REPOltTs [t9szi :\ s.c.fi.

to the extent of labelling Gopal Sharma, appellant's father, as a liar having gone to the extent of making a false affidavit. Here also, we think the High Court has taken a most artificial and technical view of the matter. In our country, it is not uncommon for parents sometimes to change the age of their children in order to get some material benefit either for appearing in examination or for entering a particular service which would be denied to a child as under the original date of birth he would be either underaged or ineligible.

Thus, the appellant's father has given a cogent reason for changing the date of birth and there is no reason not to accept his explanation particularly because the offence was committed seven years after changing the date of birth, and, therefore, there could be no other reason why Gopal Sharma should have gone to the extent of filing an affidavit to change the date, except for the reason that he bas given.

It was also argued that in the insurance policy, the appellant's mother bad shown his age as 10 years without giving the exact date of birth. The age of the appellant was given as a rough estimate in the insurance policy but as the policy was not in the name of the appellant, nothing turns upon this fact particularly because by and large giving allowance for a few months this way or that way the hoy was about 10 years old when the policy was taken. The High Court, therefore, was wrong in attaching too great au importance to this somewhat insignificant fact.

For these reasons we are satisfied that these circumstances also do not put the case of the appellant out of court.

These are the main reasons given by the High Court for

----.....__ -

distrusting what, in' our opinion, seems to be unimpeachable docu- >-·-- mentary evidence produced by the appellant to show that his exact date of birth was 22.6.57 and not 22.9.56 as altered by his father G later.

Another question argued at the Bar was as to what is the material date which is to be seen for the purpose of application of the Act.

In view of our finding that at the time of the occurrence the apoellant was undoubtedly a child within the provisions of the Act, the further question if he could be tried as a child if he had become more than 16 years by the time the case went up to the

- ,~

UMESH CHANDRA v. RAiASTHAN' (Fazal Ali, J.) 593

court, does not survive because the Act itself takes care of such a A contingency. In this connection sections 3 and 26 of the Act may be extracted thus :

"3. Continuation of inquiry in respect of child who has ceased to be child

Where an inquiry has been initiated against a child and during he course of such inquiry the child ceases to be such, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a child.

xx xx x

26. Special provision in respect of pending cases.

Notwithstanding anything contained in this Act, all proceedings in respect of a child pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the child has , committed an offence, it shall record such finding and, instead of passing any sentence in respect of the child, forward the child to the children's court which shall pass orders in respect of that child in accordance with the provision of this Act as if it has been satisfied on inquiry under this Act that the child has committed the offence."

A combined reading of these two sections would clearly show that the statute takes care of contingencies where proceedings in respect of a child were pending in any court in any area on the date on which the Act came into force.

Section 26 in terms lays down that the court should proceed with the case but after having found that the child has committed the offence it is debarred from passing any sentence but would forward the child to the children's court for passing orders in accordance with the Act.

As regards the general applicability of the Act, we are clearly of the view that the relevant date for the applicability of the Act is the date on which the offence takes place. Children Act was enacted to protect young children from the consequences of their

594 SUPl!.llM13 cotJIJ.'r kl!Pok'l:S [1~~~13 s.c.a.

criminal acts on the footing that their mind at that age could not be said to be mature for imputing mens rea as in the case of an adult.

This being the intendment of the Act, a clear finding has to be recorded that the relevant date for applicability of the Act is the date on which the offence takes place. It is quite possible that by • the time the case comes up for trial, growing in age being an involuntary factor, the child may have ceased to be a child. Therefore, ss. 3 and 26 became necessary.

Both the sections clearly point in the direction of the relevant date for the applicability of the Act as the date of occurrence. We are clearly .of the view that the relevant date for applicability of the Act so far as age of the accused, who claims to be a child, i's concerned, is the' date of the occurrence and not the date of the trial.

The High Court bas failed to take notice that the Act being a piece of social legislation is meant for the protection of infants who commit criminal offences and, therefore, its provisions should be liberally and meaningfully construed so as to advance the object of the Act. Bearing this in mind we have construed the documents in the instant case.

We, therefore, allow the appeal to the extent that while setting aside the judgment of the Sessions Judge, as affirmed by the High Corrt, we direct the Additional Sessions Judge, Jaipur; to try the accused and if be gives a finding that the accused is guilty, he shall forward the accused to the Children's court for receiving sentence in accordance with the provisions of s. 26 of the Act.

H.L.C.

Appeai allowed.

A

UMESH CHANDRA

STATE OF RAJASTHAN

April 2, 198111

S. MURTAZA FAZAL ALI

A. VARADARAJAN, JJ

Rajasthan Children Act, 1970

Art 1872

S. 35

Children Act, 1970

ss. 364 and 302

I.P.C

Tonk district

ss. 3 and 26

ss. 3 and 26

Additional Sessions Judge, Jaipur

s. 35

[1964) 5 S.C.R. 86

K.K. Venugopal

Khanduja

G. C. Mishra

B.D. Sharma

FAZAL ALI

Rajasthan Legislature

Additional Sessions Judge, Tonk

Additional Sessions Judge, Jaipur city

Rajastban High Court

Tonk

sections 364 and 302

Indian Penal Code

s. 26

s. 26

s. 21

s. 21

Umesb Chandra

Dausa

Gopal

Ajmer

Stella

Ratilal Mehta

Stella

s. 35

sections 35, 73

sections 34, 73

s. 35

s. 35

I. Ratilal Mehta

s. 35

Hidayatullah

Kaniz Fatima

June 20, 1960

Kaniz Fatima

s. 35

ss. 73 and 74

Teressa Primary School

Pazal Ali

St.

Paul's school, Jaipur

Dhausa

Gopal Sharma

sections 3 and 26

Section 26

ss. 3 and 26

s. 26

H.L.C.


KULJIT SINGH ALIAS RANGA

LT. GOVERNOR OF DELHI & ORS.

January 20, 1982

(Y.V. CHANDRACHUD, C.J., 0. CHINNAPPA REDDY AND

A.P. SEN, JJ.]

Clemency jurisdiction-Power of President to grant pardon etc. and to suspend, remit or commute sentences in certain cases-Constitution of India, 19,01 C Article 72, scope of the power.

Dismissing the petition, the Court

HELD : I. Whatever be the guidelines observed for the exercise of the power conferred by Article 72 of the Constitution, the only sentence which can J)ossibJy be imposed upon the petitioner i_n the instant case, is that of death and D no circumstances exi~ for interference with that sentence. Not even the most liberal use of his mercy jurisdiction could have persuaded the Pesident to interfere with the sentence of death imposed upon the petitioner in view particularly ot the considerations mentioned in K.S. Rattga v. Union of India and Anr., [1981] 3 S.C R. 512. Therefore, in refusing to commute the sentence the death imposed upon the petitioner into a lesser sentence the President has not in any aiaoner transgressed his discretionary power under Article 72. [59 D-E 1 60 BC) E

2. Undoubtedly, the President has the power in aii appropriate case to commute any sentence imposed by a Court into a lesser sentence. But the question as to whether the case is appropriate for ithe exercise of the power conferred by Article 72 depends upon the facts and circumstances of each parti .. cular case. [59 E, CiJ.

3. After all the power conferred by Article 72 can be used only for the purpose of reducing the sentence, not for enhancing tit. Therefore, no uaeful purpose will be achieved by the petitioner by ensuring the imposition of any seve1'e, judicially evolved constraints on the wholesome power of the President to use it as the justice of a case may require. [59. H, 60 A]

James Shewan & Sons v. United States, 69 L. Ed. 527 at 535, referred to.

ORIGINAL JURISDICTION : Writ Petition (Crl.) No. 8193A , of 1981.

(Under Article 32 of the Constitution of India)

R. K. Garg, V. J. Frqncis, Suni/ Kumar Jain and D. K. Garg for

fh~ Petitionr-,,-Rang~,

' .... .,.

. ' I

KUUIT SINGH v. LT. GOVERNOR (Chandrachud, c. J.) 59

R. K. Jain and P. K. Jain for the Petitioner-Billa.

N. C. Talukdar and R. N. Poddar for Respondent No. 1.

L. N. Sinha, Attorney General and Miss A. Subhashini for Attorney General.

K. Parasaran, Solicitor General, M. K. Banerji, Additional Solicitor General and Miss A. Subhashini for Union of India.

N. Nettar for the State of Krnataka.

Raju Ramachandran for Applicant/intervener-Chhaganlal_ Aggarwal.

The Judgment of the Court was delivered by

CHANDRACHUD C. J.

The question as regards the scope of the power of the President under article 72 of the Constitution to commute a sentence of death into a lesser sentence may have to await examination on an appropriate occasion. This clearly is not that occasion because in so far as this case is concerned, whatever be the guidelines observed for the exercise of the power conferred by article 72, the only sentence which can possibly be imposed upon' the petitioner is that of death and no circumstances exist for interference with that sentence. Therefore we see no justification for saying that in refusing to commute the sentence of death imposed upon tb, e petitioner into a lesser sentence, the President has in any manner . transgressed his discretionary power under article 72.

Undoubtedly, the President has the power in an appropriate case to commute any sentence imposed by a .court into a lesser sentence ayd as said by Chief Justice Taft in James Shewan & Sons v United States('), the "executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law" and that the administration of justice by the courts is not necessarily or certainly considerate of circumstances which may properly mitigate guilt. But the question as to whether the case is appropriate for the exercise of the power conferred by Article 72 depends upon the facts and circumstances of each parti- .c:ular case. The necessity or the justification for exercising that power has therefore to be judged from ¢ae to case. In fact, we do not see what useful purpose will be 11i; qieved by tqe petitioner by

(I) 69 L Ed. 527 at 535.

SUPREME COURT REPORTS

(1982) 3 S.C.R.

ensuring the imposition of any severe, judicially evolved constraints oo the wholesome power of the President to use it as the justice of a case may require.

After all, the power conferred by Article 72 can be used only for the purpose of reducing the sentence, not for enhancing it.

We need.not, however, go into that question elaborately because in so far as this case is concerned, we are quite clear that not even the most liberal use of his mercy jurisdiction could have persuaded the President to interefere with the sentence of death imposed upon the petitioner, in view )larticularly of the considerations mentioned by us in our judgment in Kuljeet Singh @ Ranga v. Union of India & Anr.('). We may recall what we said in

tht judgment that "the death of the Chopra children was cau.sed by the petitioner and his companion Billa after a savage planning . which bears a professional stamp", that the "survival of an orderly society demands the extinction of the life of per'°ns like Ranga and Billa who are a menace to social order and security'', and that "they are professional murderers and deserve no sympathy even in terms of the evolving standards of decency of a mature society".

The petition is accordingly dismissed. •

We have heard Shri R. K. Jain as amicus on behalf of the accused Billa.

We see no substance in Shri Jain's contentions also.

The order of stay of execution of the death sentence which we had passed in favour o.f the accused Ranga and Billa as also the general order of stay are hereby vacated. If in any specific case or cases there is an express crder of stay, it will not be affected by the order which we are passing today.

S, R.

Petition dismissed.

(1) [1981) 3 S.C.R. sq.

KULJIT SINGH ALIAS RANGA

LT. GOVERNOR OF DELHI & ORS

January 20, 1982

Y.V. CHANDRACHUD, C.J.

0. CHINNAPPA REDDY

A.P. SEN, JJ.

Constitution of India

Article 72

Article 72

[1981] 3 S.C R. 512

Article 72

Article 72

Article 72

Article 32

Constitution of India

R. K. Garg

V. J. Frqncis

Suni/ Kumar Jain

D. K. Garg

R. K. Jain

P. K. Jain

N. C. Talukdar

R. N. Poddar

L. N. Sinha

A. Subhashini

K. Parasaran

M. K. Banerji

N. Nettar

Raju Ramachandran

Chhaganlal_ Aggarwal

CHANDRACHUD

article 72

article 72

article 72

Taft

Article 72

Article 72

Chopra

Billa

Ranga

R. K. Jain

Jain


' i '

,\'

\"· '

S95 A

HANUMANT DASS

VINAY KUMAR & ORS.

, Apri~ 5, "1982

(0. CHINNAPPA REDDY AND R.B. MISRA, JJ.]

' Party to an appeal against coNViction/acquittal-Necessary party-Occurrence of offence taking place in the te"itorial limits of_ one State, but' the trial C takeJ place in anather State, pursuant to an order of transfer by the Supreme Court-In the aPpeal by the accused before the High Court, whichis _ the necessary ,.... party respondent-Public Prosecutor of the State where the-offence 'took p/Oce or of the State __ where_ the trial took place-Code of Criminal ~Procedure, 1973,

sections 2(4), 24_, 224, '178, 38S and 432(7), scope of. ' . - ' . . - Records, summanlng of-Whfther non-summoning of f.ecords itiates the order in appeal, Code of Criminal Procedure, 1973 section 385(2), exp/ained- Setting aside OJ the judgment i.r not passible unless tM ingredients of section 465 , Criminal Procedure Code are sati3fted • .-· ·

Vinay Kumar, the husband of the deceased Asha and his mother Chhano Devi were charged; convicted' for the offence of burning alive the deceased and sentenced to life ia:iprisonment on a complaint by Hanumant .Dass ' the father of the deceased _and the 3.ppellant in Criminal Appeal 4S of 1982 by -the Sessions Judge. Gurdaspur, Punjab. The Offence is alleged -to have been

Committed within th~· territorial limits or the State Of Himachal . Pradesh. but on an application of the complainant the case was transferred by an order Or the Supreme Court inasmuch as the accused were the brother-in-law and ni.other-in- . law of a Judge. of the High Court of. Himachal Pradesh. lo appeal by the accused the High Court of Punjab issued. oa 22-6-1981, noiice for 6-7-1981 to the Advocate General of Punjab only aad on that date heard the appeal and acquit- ted both the accused. Hence the appeal by the complainant and the special leave by the State of Himachal Pradesh. ·

Dismissing the appeal and tbC Scil Leave Petition, the -Court,

HELD : 1. The charge levelled against the High Court that it 'was in

a bot ha.Ste to decide the appeal at the earJiest possible is incofrect inview of the G order dated 22-6-1981 passed by the High Court of Punjab. (600 BJ

. 2:1. Section . 385 or . the de of -Crimnal Prdur~ is a ndatorf provisionand the requirement of the section must be satisfied. Jn the appeal before tho High Court -State of P.unjab was made a party and notice of the appcafwas also given to the Advocate General of Punjab •. From sections 2(4).

24. 225. 378 and 432 it is tevident that there shall be a Public Prosecutor fOr - -conducting an~ prosecution appeal or other proceedi:r; ig on behalf of the Central

596 SUPREME COUR'r REPORTS 11982) 3 s.c.il.

Govenment or State GovCrnment in the High'eourt •. r notice h1s been given to the Public Prosecutor, namely, the Advocate-General of_ Punjab the require-_ ment of law has _been fulfilled. (601 Jl.C, 603 C-D] .

-: 2:2. Section 432 of the Criminal Procedure Code: defines ••approptjate

GoVem.me:Ot~' as meaning (a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under_ any law relating to a matter to which the executive power of the Union extends, the Central Government;· (b) in other cases, the Government of the St3.te within which the offender iS sentenced or-tbC-said otder is passed.· -According to this section the appropriate Government is the Government of the State of conviction and not the Government of the State where the offence was Committed. L603 C-D]

' State of Madhya Praduh v. Ratan Singh & Ors., (1976] Supp. S.C.R.

SS:Z. applied.

- 3. TO contend that the High Court disPOsed or the appeal CveD without sumt:D.onirig the record is incorrect. No specific allegation has been made in the Special Leave Petition that the. record waS not summonCd.~- The tenor or_ the judgment of the High Court indicates that the record must have been there before the High Court. There is copious reference to the materials On. the record which could be. possible only when the record was there biefore the court.

Bcsid.;:s, the counsel for the appellant made a statement before thecourt that on the finding of fact recorded by the High Court he was entitled to an-· acquitial and in this view of the matter even if the record had not been summoned that would not be fataL- Further -proviso. to sub--section (2) of section 38S itself provides.-•.. the court may dispose of the apPeal without sending for the record:• in a cCrtain- -situation; The rigou'r of sub-sCction- (Zj ofsection 385, which provides that "the Appellate Collrt shall then send for the record of the case •• ~:· has been taken away by the proviSo in a- -cCrtain situation. If the api)Cuant him self says that the appeal can be allowed on the findings recorded by the Sessions Judge, tho non-summoning of the record,.ifit was at all so. wouJd not be fatal.

The complainant was present with his counsCI, the State Advocaie-General was also present. If there had been any grievance about _the rCcord, they would havo raised an objection. Their non-objection on this point is also an" indicator that the -record was there or in any case, the summoning of the record was not thought to be necessary by the parties. (604 EH, 60S A-Bl

4. On merits also there is no case for the appellants . since each and every aspect of the matter has been ihorougbly discussed by the High Court which has referre~ to the error committed by the Sessions Judge in the approach of the case and also in making unwarranted assumptions. There is no eye witness.

The fate of the case hinges upon the circumstantial evidence. The High Court has dealt with the two dying declarations, one recorded by the Doctor and the other by the Assistant Sub-Inspector. _The High Court also took into considera .. tion the oral dying-declaration on which the prosecution strongly relied. But even that declaration does not implicate the accused. [605 G~H, 606 A .. B],..:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 45. of 1982.

HANUMANT DASS v. VINAY KUMAR (Misra, J.) 597

From the Judgment and Order dated the 9th July, 1981 of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No. 333-DB of 1981. ,

AND

S, L.P. (Cr/.) No. 2948 of 1982.

R.L. Kohli and R. C. Kohli for the Appellants.

T.U. Mehta and A.G. Ratnaparkhi for Respondent No. 1.

N.C. Talukdar and R.N. Poddar for Respondent No. 3.

N.C. Talukdar and R.N. Poddar for the Petitioner in S.L.P. (Crl.) No. 2498/81.

D. D. Sharma for the State.

The Judgment of the Court was delivered by

MISRA, J. The appeal as well s the special leave petition are directed against the judgment of. the High Court of Punjab and Haryana at Chandigarh dated 9th July, 1981. Criminal appeal has been filed by the complainant while the special leave petition has been filed by the State of Himachal Pradesh. Vinay Kumar and his mother Chhano Devi were convicted for the murder of Asha, the wife of Vinay Kumar by burning her alive and sentenced to life imprisonment by the learned Sessions flldge, Gurdaspur. On appeal by the accused, the High Court acquitted them by the impugned judgment.

The prosecution case set up at the trial was that the deceased Asha was married with Vinay Kumar in July, 1972. The marriage was an arranged marriage. It did not prove to be a success, the apparant cause for the failure of marriage was that Asha was only a matriculate and not cultured enough to move about in th~ society with the husband. To make up this deficiency the deceased again resumed her studies , and started attending college at Nagrota Bhagwan. While prosecuting her studies she was rebuked and abused and sometimes even thrashed, whenever she visited the house of her-in-laws. She however, kept on suffering in the vain hope that in due course of time things might improve. There was, however,

110 improvement and she was fedup wit[J the m!lltreatment and

SUPREME COURT REPORTS

(1982] 3 S.C.R.

cruelty meted out to her in the in-laws house. She left the matri monial home and started living with her parents sometime in the year 1975 or early 1976.

In 1977 Vinay Kumar filed a petition in the court of the District Judge, Kangra at Dharamshala under section 13 of the Hindu Marriage Act for the dissolution of his marriage with the deceased on various grounds including one of desertion. The District Judge in the first instance tried for reconciliation between the spouse and as an interim arrangement Asha returned to her-in-laws house in June 1978 on trial basis, while divorce petition was kept pending and adjourned to July 29, 1978.

As the parties did not appear in the Court on the date fixed, it was presumed that they were living happily and the proceedings were, therefore, consigned to the record.

On 5th of August, 1978 at about 11 a.m. Kanwal Nain P.W. 4, Bil Bhandur P.W. 14, employee of the Post Office, which was just in front of the house of the accused at a distance of 10/12 feet, and a number of other persons saw smoke coming out of the window of the house of the accused.~ When Bil Bhandur and others went to the house, they found the outer door locked. There was no other means of ingress to the house. After a short while one Raj brought the key from Chhano Devi accused with which the lock was opened and entry gained into the house. Asha was found burning and after extinguishing the fire, she was removed to the local hospital.

Dr. 0. P. Dutta attended her and sent an intimation of the incident to the Incharge local Police Post. He recorded the statement of Asha on the out-patient register Ex. PL. Meanwhile Kesar Singh, Assistant Sub-Inspector, arrived there and after getting a certificate from Dr. Dutta, he also recorded her statement Ex. PU.

From Civil Hospital, Kangra Asha was removed in a truck to a Civil Hospital in Dharamshala (H.P.) where .she breathed her last.

In her statements recorded by Dr. Dutta and Kesar Singh, the deceased disclosed that her clothes caught fire, while she was preparing tea. The police suspected no foul play and did not register any case. The father of the deceased Hanumant Dass, however, made a report on 7th August, 1978 and a case was registered on that basis. The accused were sent up for trial. When the case was pending in the Court of Sessions Judge, Dharamshala in

ftimachl Pradesh, the comjllainant moved an ajljllication \o th~

• • -

llANUMANT DASS '" VINAY KUMAR (Misra, J.) 599

Supreme Court for transfer of the case from Himachal Pradesh to some other province. The case was transferred to a Court of competent jurisdiction at Gurdaspur in Punjab. The Sessions Judge, Gurdaspur convicted both the accused under section 302 read with section 34 of the Indian Penal Code and sentenced them to life imprisonment. This conviction was based only on the circumstantial evidence. Accused went up in appeal to the High Court.

The High Court in its turn set aside the order of conviction and acquitted the accused of the charge.

The complainant has filed the present appeal. Shri Kohli appearing for the complainant has strenuously contended that the appeal before the High Court bas been allowed in the absence of the State of Himabal Pradesh and without any notice to that State

and as such the impugned judgment of the High Court is a nullity and should be set aside 'on that ground alone.

The accused had impleaded only the State of Punjab as a party and the High Court has issued notice to the Advocate-General of Punjab. As a second limb to this argument it has been contended by Sbri Kohli that the appeal was filed in the High Court on 15th June, 198J and while considering the application for bail on 22nd of June, 1981, posted the appeal for hearing on 6th of July, 1981 after service of notice on the Advocate-General of Punjab and the appeal was decided on 9th July, 1981 without even summoning the record. Thus the High Court was in a hot haste to dispose of the appeal even without reasonable opportunity being afforded to the counsel for the State and without impleading the appropriate State as a party to the appeal and without notice to tbe counsel for th~ State of Himachal Pradesh.

We may first deal with the criticism of the learned counsel about the undue haste _in the disposal of the appeal by the High Court. It appears that Shri M.R. Mahajan, counsel for the appellants while moving the application for bail made a statement. before the High Court and it is on his statement that the case was posted for bearing at the earliest possible. This will be apparent from the order dated 22.6.1981 passed by the High Court while disposing of the application for bail. The order insofar as it is material for consideration of the point reads :

" ... Mr. Mahajan, Advocate states that on the findings of fact recorded by the learned trial Judge, the conviction of the appellants can110\ be sµs(aiued.

Notice for 6.7.81,

~UPRBMB COURT REPORTS

(1982) 3 S.C.R.

to the Advocate-General, Punjab.

Copy of the grounds

1 of appeal and the judgment rendered by the learned trial Judge be delivered in the office of the A. C. Punjab within two days, The case is likely to be disposed of on that date ............... "

Therefore, the charge levelled against the High Court that it was in a hot haste to decide the appeal at the earliest possible appears to be uncalled for.

This leads 'us to the main contention raised by Shri Kohli that the transfer of the case from Dharamshala lying within the teqitorial jurisdiction of the High Court of Himachal Pradesh to Gurdaspur lying within the jurisdiction of the Punjab and Haryana High Court, does not change the parties and the 'parties remain the same even after the transfer of the case from Dharamshala to Gurdaspur. In this view of the legal position, the State of Himachal Pradesh where the offence was committed was a necessary party and should have been impleaded in appeal.

In the absence of the State of Himachal Pradesh as a party and in the absence of notice to the counsel for the State of Himachal Pradesh, the High Court was not justified in disposing of the appeal and its judgment is only a nullity.

This contention is based on section 385 of the Code of Criminal Procedure. Insofar as it is material for the purpose of the case it reads:

"385(1) : If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given-

(i) to the appellant or his pleader;

(ii) to such officer as the State Government my appoint in this behalf;

(iii) if the appeal is from a judgment of conviction in a case instituted up'on complaint, to the complainant;

(iv) if the appeal is under section 377 qr section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal.

• - __ _,,,,.-''

r--1

,'-

. -' r

HANUMANT DASS v. VINAY KUMAR ((Misra, J) 601

(2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court, and hear the parties :

Provided that if the appeal is only as to the extent or the legality of the sentence, the Court !)lay dispose of the

appeal without sending for the record. . 8

(3) ........................... .

There is no denying the fact that section 385 of the Code is a mandatory provision and the requirement of the section must be satisfied. In the appeal before the High Court, State of Punjao was made a party and notice of the appeal was also given to the Advocate-General of Punjab. According to Shri Kohli this does not satisfy the requirement of law.

It would be appropriate at this stage to refer to other relevant provisions of the Code :

Section 225 provide~ that-"In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor."

Section 2(4) defines public prosecutor-"Public Prosecutor means any person appointed under section 24, and includes any person acting under t.he direction of a public prosecutor."

Section 24 deals with "Public Prosecutors in the High Court" :

"24. Public Prosecutors :-(I) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal .or other proceeding on bebalf of the Central Government or State Government, as the case may be'

" ............ ········· ......... ······ I ,.

Section 378 talks of an appeal in case of acquittal. Insofar as it is material it reads thus :

"378(1) Save as otherwise provided in sub-section (2) and subject \o thQ provisio11~ <:>f sl\b-sections (3) and (5)1

602 I 1982) s.c.ll.

the State Government may, in any case, direct the Public Prosecutor to jlresent an appeal to the High Court from an original or appellate order of acquittal p11$Sed by any Court other than a High Court, (or an order of acquittal passed by the Court of SessiOn in revision).

(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than this Code; the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-sec. (3) to the High Court from the order of acquittal . .. ... ... . .. ········· ........ .

Section 432 authorises the appropriate Government to suspend or remit sen fences.

"432(1) : When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution, of his "sentence or remit the whole or any part of the punishment 'to which he has been sentenced.

(2) Whenever an application is made to the appropriate Government for the suspension for remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion........................... ·

(3) .................. (4) ..................... (5) .......................... .

(6) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him 9r bis property,

HANUMANT DASS v. VINAY ltUMAR (Misra, J.)

(7) In this section and Sin section 433, the expression ·"appropriate Government" means-

(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

From the various provisions extracted above it is evident that there shall be a Public Prosecutor for conducting any prosecution appeal or other proceeding on behalf of the Central Government or State Government in the High Court. If notice has. been given to the Public Pro.secutor viz. the Advocate-Ge?eral of Punjab the requirement of law to our mind has been fulfilled.

Shri Kohli, however, contends that occurrence in the instant case took place within the territorial limits of Himachal Pradesh.

That State, therefore, will continue to be a necessary party in the

apiital irrespective of the fact that the appeal was file!! in the Punjab E High Court.

I Section 432(7) extracted above defines "appropriate Government". "Appropriate Government" means-(a) in cases where the sentence is for an offence against, or the order referred to in subse<:tlon (6}'is passed under any law relating to a matter to which the executive power of the Union extends, the Central Government;

....._ -(b) in other cases, the Government of the State within which the offender is sentenced or th~ said order is passed.

 According to this section the appropriate Government is the Government of the State of conviction and not the Government of the .State where the offence was committed. A somewhat similar question came up for consideration in the State of Madhya Pradesh

v. Ratan Singh & Ors.,(') where the respondent was convicted and'

tenced to imprisonment for life by a court in the State of Madhya Pradesh. At his request he Wa& tr1111sferred to a jail in the State

604 SUPltEME COUR1 REPORTS ;

(!982] 3 S.C.11. .

of Punjab, to which State he belonged.

He applied io the Government of Punjab that under the Punjab Jail Manual he is entitled to be released since he had completed more than 20 years of imprisonment. The application was sent to the Government of Madhya Pradesh, which rejected it. In a V<rit petition filed by him the High Court of Punjab and Haryana held that the State of Punjab was the appropriate authority to release him and directed the State of Punjab to consider the matter; This Court in appeal observed "a perusal of this provision clearly reveals that the test to de, termine the appropriate Government is to locate the State where the accused was convicted ahd sentenced and the Government of that State would be the appropriate Government within the meaning of sec. 401 of the Code of Criminal Procedure. Thus since the prisoner in the instant case was tried, convicted and sentenced in the State of Madhya Pradesh, the State of Madhya Pradesh \'ould be the appropriate Government to exercise the discretion for remission of the sentence under sec. 401{1) of the Code of Criminal Procedure ...... , ..... " That wd a case based on section 40 I of the old Criminal Procedure Code, but the Code o( Criminal Procedure, 1973 has put the matter completely beyond any controversy and reiterated the provisions of section 402(3) in sub-section (7) of section 432.

, Lastly it was contended that. the appeal was disposed of by the High Court\ even without summoning the record. There is no warrant for this assumption. No specific allegation bas been made in the special leave petition that the record was not summoned. We have perused the judgment of the High Court and the tenor of the judgment indicates that the record must have been there before the court. There is copious reference to the materials on the record which could be possible only when the record was there before the court. Besides, .. the counsel for the appellant made a statement ~· before the court that on the finding of fact recorded by the High- , Court he was entitled to an acquittal and in this view of the matter even if the record , had not been summoned (for which there is no basis) that would not be fatal, Proviso to sub section (2) of section 385 itself provides " ... the court may dispose of the appeal without sending for the record." in a certain situation.

The rigour of subsection (2) of sec. 385, which provides that "the Appellate Court shall then send for the record of the case ... " has been taken away by the proviso in a certain situation. If the 1appellant himself says

that the appeal can be allowed on the findings recorded by the ::>essions Jud?f, the non-summonin~ of the record, if it was at all so, r •

liANUi.iANt bAss v. VINAY KUMAR (Misra, J.i

1 605

would not to our mi.nd be fatal. The complainant was present with his counsel, the State Advocate-General was also present. If there had been any grievance about the record, they would hav~ raised an objection. Their non-objection on this point is also an indicator that the record was there or in any case, the summoning of the record was not thought to be necessary by the parties.

Assuming for the sake of argument, .that there were certain irregularities in the procedure the judgment of the High Court could not be set aside unless it was shown by the appellant that there has 'been failure of justice, as will be evident from section 465 of the Criminal Procedure Code which reads :

"465. Finding or sentence-when reversible by reason of error, omission or irregularity-

(I) Subject to the provisions herein before contained no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceed- . ings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of . that Court, a failure of justice has in fact .been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the 'Court shall have regard to the fact whether the objection could and should .have been raised at an earlier stage in the proceedings."

We have perused the judgment of the High Court which was G placed before us in full. It shows that each and every_ aspect of the matter has been thoroughly discussed and the High Court has also referred to the error committed .by the Sessions Judge in the approach of the case and also in making unwarranted assumptions.

On merits we fully agree with the appraisal of the. evidence made by the High Court. It is not necessary to repeat the same

stJl'ki!Mil cotJkt ltili'Oiltt

OYer again. There is no eye witness. The fate of the ase hinges upon the circumstantial evidence. The High Court has dealt with the two dying declarations, one recorded by tbe Doctor and the

oilier by the Assistant Sob-Inspector. The High Court also took into consideration the oral dying declaration on which the prose ' cution strongly relied. But even that declaration does not implicate the accused. The reason given by the High Court for acquittal in our opinion is cogent and plausible. ' ·

For the foregoing discussion, the criminal appeal and the special leave petition must fail and they are accordingly dismissed.

S.R.

Appeal & Petition dismissed.

---~

--~-

VINAY KUMAR & ORS

0. CHINNAPPA REDDY

R.B. MISRA, JJ.

sections 2(4), 24

Code of Criminal Procedure, 1973

section 385(2)

section 465

Criminal Procedure Code

Vinay Kumar

Asha

Chhano Devi

by Hanumant .Dass

Supreme Court

High Court of Punjab

Punjab

State of Himachal Pradesh

High Court -State of P.unjab

sections 2(4)

Section 432

Central Government

Government of the St3.te

Government of the State

section 38S

section 385

HANUMANT DASS

R.L. Kohli

R. C. Kohli

T.U. Mehta

A.G. Ratnaparkhi

N.C. Talukdar

R.N. Poddar

D. D. Sharma

MISRA

Vinay Kumar

section 13

Hindu Marriage Act

July 29, 1978

5th of August, 1978

Kanwal Nain

Bil Bhandur

Raj

P. Dutta

Kesar Singh

Dutta

Kangra Asha

Dharamshala

Hanumant Dass

7th August, 1978

Court of Sessions Judge, Dharamshala

llANUMANT DASS

VINAY KUMAR

Misra

Himachal Pradesh

Gurdaspur

Sessions Judge, Gurdaspur

section 302

section 34

Indian Penal Code

Kohli

State of Himabal Pradesh

State of Punjab

Sbri Kohli

15th June, 198J

22nd of June, 1981

6th of July, 1981

9th July, 1981

M.R. Mahajan

Mahajan

Punjab and Haryana High Court

State of Himachal Pradesh

section 385

Code of Criminal Procedure

section 377

section 378

section 385

State of Punjao

Section 225

Section 2(4)

section 24

Section 24

Section 378

Delhi Special Police Establishment

Section 432

section 433

Punjab E High Court

Section 432(7)

State of Madhya Pradesh

Madhya Pradesh

Government of Punjab

Government of Madhya Pradesh

High Court of Punjab and Haryana

State of Punjab

sec. 401

Code of Criminal Procedure

sec. 401

Code of Criminal Procedure

section 40

Criminal Procedure Code

section 402(3)

section 432

section 385

sec. 385

section 465