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Calcutta Judgement: A white collar crime committed and detected in January 1965 took a demoralisingly leisurely course spread over 3 years in the trial court although only 21 witnesses were examined and the case was simple and supported by a nearly clinching statement of the only accused recorded fresh after the detection, the very day. An important component of fair trial is speedy hearing, and the deterrence of judicial punishment is diluted to the prejudice of public justice if, through dilatory hearings and ineffectual revisions unfortunate delays, such as mar this case, corrode the system and put the courts on trial before the community. From
: Mysore Judgement: An intricate point of Hindu Law bearing on an adoption by a widow and its impact on an earlier partition in the coparcenary all prior to the Hindu Succession Act, 1956 arise for decision in this appeal by certificate against the decree of the Mysore (now Karnataka) High Court. The plaintiff succeeded in both the Courts and the aggrieved second defendant who is the appellant before us has confined his challenge to two major contentions, although a few minor matters also require our attention in working out the ultimate relief. A.N.
RAY, C.J.I., K.K. MATHEW, V.R. KRISHNA IYER AND S. MURTAZA FAZL ALI, JJ. Judgement: An undertaking is defined as an 'undertaking' which itself discloses the difficulty faced by the draftsman in delineating the precise content. "Is engaged in production" in the context takes in not merely projects which have been completed and gone into production but also blue-print stages, preparatory moves and like ante-production points. It is descriptive of the series of steps culminating in production. One is engaged in an undertaking for production of certain goods when one seriously sets about the job of getting everything essential to enable production. Economists; administrators and industrialists undertaking the expression in that sense and sometimes projects in immediate prospects are legitimately set down as undertakings engaged in the particular line. What will materialise as a productive enterprise in future can be regarded currently as an undertaking in the industrial sense. Likewise acquisition of an undertaking is to be viewed not in a narrow sense but as a broad business operation. AIR 1968 SC 554 and AIR 1960 Bom 22, Ref. (Para 21) "'Undertaking' is an expression of flexible semantics and variable connotation, used in this very statute in different senses and defined in legal dictionaries widely enough. In sum, what the appellant proposed to the Central Government was to establish a new undertaking if legal camouflages built around the verb were to be thrown aside and the corporate veil were to be pierced. Therefore, while jurisdiction in the respondent to apply Section 23 (4) of the Act was absent, the appellant may (be) caught within the spider's web of Section 22 @page-SC2262 I do not express myself finally," (Para 31) If the language of a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it. Minor definitional disability divorced from the realities of the industrial economics if stressed as the sole touchstone is sure to prove disastrous when special types of economic legislation like Monopolies and Restrictive Trade Practices Act having object is to inhibit concentration of economic power. Therefore when two interpretations are feasible that which advances the remedy and suppresses the evil as the legislature envisioned must find favour with the Court. (Para 23) I have had the advantage of perusing the judgment of my learned brother, 'Mathew J.but, while concurring in the conclusion, I desire to append a separate opinion since the strands of my reasoning differ. Mathew J. s judgment presents the necessary facts in the simplest form, sets out the scheme and the object of the Monopolies and Restrictive Trade Practices Act (for short, the Act) whose construction falls for decision, but perhaps tends to petrify the pivotal concepts of 'undertaking' defined in Section 2(v) and acquisition in the context of Part A of Chapter III of the Act, if I may say so with respect. Perhaps we are hearing the first case in this Court under this 'economic' legislation, although three rulings from the High Courts, AIR 1960 Bom 22 (1972) 74 Bom LR 1 = (AIR 1972 Bom 301); AIR 1973 Mys 95 having some bearing on the controversy before us were cried at the bar. From:
Madras (for himself and on behalf of A. N. Ray C. J.):- A terse presentation of the twin contentions canvassed before us, in these appeals by special leave, after discomfiture at two tiers below, highlights the importance of the economic role of the State in undertaking with legal preferences, strategic services vital to the community. The keynote thought underlying our decision is that the jural postulates of the old competitive order have to yield place to the new values of developmental jurisprudence. Public law, in India, responding to the public needs and the State's functional role mandated by the Constitution, has evolved new approaches to old problems and given up dogmas which once prevailed during laissez-faire days but now have become obsolete because of the 'welfare economy' which has been nurtured. This radical change in jural perspectives has its impact on canons of statutory construction and on verdicts about the vires of legislation. All these generalities acquire appropriate application in the present cases which arise under the Motor Vehicles Act, 1939 (Act IV of 1939) (the Act, for short) from challenges before the High Court without avail, by private operators, of the permit granted to the State Transport Undertaking (STU) by the transport tribunals. The validity of Rule 155A of the Motor Vehicles Rules framed under Section 68 of the Act is in issue. Note
:- The Judgments are printed in the order in which they are given in the
certified copy-Ed. No matter what the grounds are, if they are traceable to Part III in whatever form, they fail in the presence of Article 31B. No Master of English legal diction could have used, so tersely, such protean words which in their potent totality bang, bar and blot the door against every possible invalidatory sally based on Part III. It is not correct to argue that the phraseology of Article 31B must be correlated to Art. 13 and read with a truncated connotation. (Para 38) A great right is created in favour of owners to get compensation at not less than the market value if lands within the ceiling limit and in personal cultivation are acquired by the State. This is a fundamental right and is a creature of the 2nd proviso to Article 31A (1). An independent provision may occasionally incarnate as a humble proviso. (Para 40) It is absolutely plain that in the context, setting and purpose of a provision, even a proviso may function as an independent clause. (Para 41) Legal challenges to the constitutionality of agrarian transformation through legislation die hard in our divided society, as is evidenced by this avalanche of appeals, by special leave, from the High Courts of Maharashtra, Punjab and Allahabad. The naiva expectation that new incarnations in court of dead confrontations between land legislation and the Constitution may be finally laid @page-SC934 to rest by a larger-than-legal discussion has pressured me into writing a separate opinion where concurrence with my learned brethren should have spared this seemingly otiose exercise. From:
1 and 2; Gujarat When examining a legislation from the angle of its vires, the Court has to be resilient, not rigid, forward looking, not static, liberal, not verbal in interpreting the organic law of the nation. (Para 2) The Court must also remember the constitutional proposition that Courts do not substitute their social and economic beliefs for the judgment of legislative bodies. Moreover, while trespasses will not be forgiven a presumption of constitutionality must colour judicial construction. These factors, recognised by the Supreme Court, are essential to the modus vivendi between the judicial and legislative branches of the State, both working beneath the canopy of the Constitution. (1876) 94 US 113, Rel. (Para 2) A law has to be adjudged for its constitutionality by the generality of cases it covers, not by the freaks and exceptions it martyrs. (Para 10) The true key to constitutional construction is to view the equity of the statute and sense the social mission of the law, language permitting, against the triune facets of justice, highlighted in the Preamble to the Paramount Parchment, read with a specious signification of the listed entries concerned. If this programme is fed into the judicial cerebration with the presumption of constitutionality superadded, the result would tell whether the measure is ultra vires or not. The doctrine of ancillary and incidental power is also embraced within this scheme of interpretation. (Para 14) In the branch of law dealing with the doctrine of colourable exercise of public power especially legislative power, 'colourable' is not 'tainted with bad faith or evil motive' it is not pejorative or evil motive' it is not pejorative or crooked Conceptually 'colourability' is bound up with incompetency. A thing is colourable which is in appearance only and not in reality, what it purports to be. In @page-SC2280 Indian terms, it is maya. In the jurisprudence of power, colourable exercise of or fraud on legislative power or, more frightfully, fraud on the Constitution, are expressions which merely mean that the legislature is incompetent to enact a particular law, although the label of competency is stuck on it, and then it is colourable legislation. It is very important to notice that if the legislature is competent to pass the particular law, the motives which impel it to pass the law are really irrelevant. If a legislation, apparently enacted under one Entry in the List, falls in plain truth and fact, within the content, not of that Entry but of one assigned to another legislature, it can be struck down as colourable even if the motive were most commendable. In other word,s the letter of the law notwithstanding, what is the pith and substance of the Act? Does it fall within any entry assigned to that legislature in pith and substance, or as covered by the ancillary power implied in that Entry? Can the legislation be read down reasonably to bring it within the legislature's constitutional powers? If these questions can be answered affirmatively, the law is valid. Malice or motive is beside the point, and it is not permissible to suggest parliamentary incompetence on the score of mala fides. (Para 16) Principle in construing words conferring legislative power is that the most liberal construction should be put on the words so that they may have effect in their widest amplitude. None of the items in the List is to be read in a narrow restricted sense. Each general word should be held to extent to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. (Para 46) Judgement: (on behalf of himself and M. H. Beg C. J., Chandrachud, Bhagwati, Untwalia and Fazal Ali, JJ.):- This bunch of appeals brought by the State of Gujarat certificate has a pan-Indian impact, as the sales-tax project which has been struck down by the High Court may adversely affected cousin provisions in like statutes in the rest of the country. Contradictory verdicts on the constitutionality of a certain pattern of sales-tax legislation, calculated to counter consumer victimisation by dealers, have been rendered by different High Courts and what complicates the issue is that reasonings in the prior rulings of this Court on the topic have been pressed into service by both sides. This slippery legal situation makes it necessitous for the Constitution Bench of this Court (numerically expanded, almost to breaking point, by the recent 42nd Constitution Amendment) to declare the law with relative certitude, reviewing, in the process, its previous pronouncements and overruling, if required, the view of one High Court or the other so that the correct position may finally be restated. The certainty of the law is the safety of the citizen and, having regard to the history of judicial conflict reflected in the rulings we will @page-SC2282 presently unravel, an authoritative decision is overdue. From:
(1976) 17 Guj LR 1017 (FB) A.N. RAY. C.J.I., H.R. KHANNA, K.K. MATHEW, M.H. BEG, V.R. KRISHNA IYER, A.C. GUPTA AND S. MURTAZA FAZL ALI JJ. State of Kerala and another, Appellants v. N.M. Thomas and others, Respondents. Civil Appeal No. 1160 of 1974, D/- 19-9-1975. Scheduled Castes and Scheduled Tribes are no castes in the Hindu fold but an amalgam of castes, races, groups, tribes, communities or parts thereof found on investigation to be the lowliest and in need of massive State aid and notified as such by the President. To confuse this backward most social composition with castes is to commit a constitutional error, misled by a compendious appellation. So that, to protect harijans is not to prejudice any caste but to promote citizen solidarity. Art. 16 (2) is out of the way and to extend protective discrimination to this mixed bag of tribes, races, groups, communities and non-castes outside the fourfold Hindu division is not to compromise with the acceleration of castelessness enshrined in the sub-Article. Art. 16 (4) serves not as an exemption but as an emphatic statement, one mode of reconciling the claims of backward people and the opportunity for the free competition the forward sections are ordinarily entitled to. (Paras 160, 161) A case which turns the focus on the political philosophy pervading the Constitution and affects a large human segment submerged below the line of ancient social penury, naturally prompts me to write a separate opinion substantially concurring with that of the learned Chief Justice. Silence is not always golden. From : Punjab & Haryana V.R. KRISHNA IYER AND E.S. VENKATARAMIAH, JJ. Special Leave Petn. (Crl.) No. 2599 of 1979, D/- 1-4-1980. Krishan Lal, Petitioner v. State of Haryana, Respondent. A rapist - if the concurrent findings of the courts below were correct- has chosen to seek special leave to challenge his crime and punishment, and his counsel has attacked the verdict of culpability as wholly unfounded. Indeed, it is redundant, and absent exceptional circumstances, out of bounds, for this Court, exercising its jurisdiction under Article 136, to launch upon an exploration and re-appreciation of the evidence, its strengths and weaknesses with a view to sit in judgment over the holdings of the High Court in affirmance of those of the trial Court. From : Bombay V.R. KRISHNA IYER AND R.S. PATHAK, JJ. Special Leave Petn. (Criminal) No. 2636 of 1979, D/-19-12-1979. Vaswant Narayan Pawar, Petitioner v. State of Maharashtra, Respondent. Shri Pramod Swarup appearing an amicus curiae has presented the case of the accused as effectively as the record permits. Indeed, he has gone to the extent of pressing into service points which do not appear to us to have any force. Moreover, he has tried to persuade us to believe that a dying declaration made by the lady who was burnt to death by the husband - accused - that is the charge on which the trial court and the High Court had found the petitioner guilty is exonerative of the accused husband and does not implicate him as the Court has construed. The declarant as she was dying was conscious enough to make a statement and in one of the several statements she made, it would appear, she said when her husband was being beaten up that even though she had been burnt, her husband about not be beaten. This is a sentiment too touching for tears and stems from the values of the culture of the Indian womanhood. A wife when she has been set fire to by her husband, true to her tradition, does not went her husband to be assaulted brutally. It is this sentiment which promoted this dying tragic woman to say that even if she was dying having been burnt, her husband should not be beaten. We are unable to appreciate how this statement can be converted into one exculpative of the accused. Anyway, we are mentioning these facts only because Shri Pramod Swarup contended that they were weighty circumstances sufficient to cancel the conviction. From : Karnataka V.R. KRISHNA IYER AND O. CHINNAPPA REDDY, JJ. Civil Appeal No. 1143 of 1979, D/-18-3-1980. N. Chandramouli, Appellant v. Chikkalakkaiah and others, Respondents. The only question raised in this appeal relates to the seniority of one of two groups of candidates in the Karnataka State. We must make it perfectly plain that we are concerned only with the specific rules placed before us and limit the operation of our observations to these rules and orders - no wider import or impact is available nor do we intend to affect other States and other services governed by other systems or rules. V.R. KRISHNA IYER AND O. CHINNAPPA REDDY, JJ. Civil Appeals Nos. 2526 of 1977 and 2413 of 1978* and Writ Petns. Nos. 520-524 of 1980, D/- 11-4-1980. Harjeet Singh, etc., Appellants v. Union of India and others, Respondents And B. R. Kapur, Appellant v. Union of India and others, Respondents.And R. L. Sarangal and others, Petitioners v. Union of India and others, Respondents. Though under the Indian Police Service (Appointment by Promotion) Regulations, the Select List is prepared on the basis of merit and ability, the order in which officers are placed in the Select List in according to seniority in the State Police Service and not according to merit and ability. Merit and ability are considered for the purpose of inclusion in the Select List but thereafter seniority in the State Police Service takes over and the names of officers are arranged in the order of that seniority. The benefit of continuous officiation in a senior post cannot be denied to an officer appointed to the Indian Police Service merely on the ground that an officer senior to him in the State Police Service did not so continuously officiate. (Para 18) V.R. KRISHNA IYER, O. CHINNAPPA REDDY AND A.P. SEN, JJ. Writ Petns. Nos. 112-115, 175, 297, 194-198, 489-490, 213, 2-3 and 432 of 1980; 1477, 1516 and 1517 of 1979 and Spl. Leave Petn. (Civil) No. 2746 of 1980, D/-11-4-1980. Mahindra Nath Shukla and others etc., Petitioners v. State of Bihar and others etc. etc., Respondents. AND Jugal Kishore Jayaswal, Petitioner v. Pradit Gupta and another, Respondents. We have a hunch - we leave it at that - that these "workers" writ petitions are a kind of litigative puppetry, the illcit mine exploiters being the puppeteers. This set of writ petitions, where some private managements claim to have the right to extract coking coal on the score that prohibition enacted in the Coal Mines (Nationalisation) Amendment Act, 1976 does not affect or operate on coking coal mines, must be dismissed as devoid deserts. V.R. KRISHNA IYER AND A.P. SEN, JJ. Civil Appeals Nos. 1624 and 1624A of 1979, D/- 8-5-1980. Union of India, Appellants v. M/s. Jolly Steel Industries (P) Ltd. and others, Respondents. We are pronouncing a short judgment disposing of both the appeals. They stem from an award in a dispute between a contractor and the Railway Department of the Union of India. Steel scrap was to have been supplied as per the contract to the respondent. But disputes having arisen between the parties a reference was made to arbitration. An award followed. But it became the subject matter of a challenge. These two appeals have spiralled us to this Court. We are not narrating the facts in further detail which would have been necessary had we the need to investigated the issues and pronounce thereon. But we have narrowed down the scope of the controversy and although the award upholds the respondent's right to receive the entire quantity of scrap we have persuaded the counsel on both sides and their parties through them to adopt a middle course. We must state that the advocates have been very helpful in bringing to an end a litigation which otherwise could have had a protracted course. A minimal dispute, which survived has been left to us for decision and we decide that also in this short judgment. From : Madras V.R. KRISHNA IYER AND D.A. DESAI, JJ. Special Leave Petns. (Civil) Nos. 937-939 of 1980, D/- 21-3-1980. N. K. V. Bros. (P.) Ltd., Petitioner v. M. Karumai Ammal and others etc., Respondents. Sri Ramachandran, ably assisted by Sri K. Ram Kumar, presented the case of the petitioner for special leave, as persuasively as the facts permit but while we were impressed with the industry and advocacy of counsel, we heartily dismiss the petition. Why heartily? Because the High Court, if at all, has erred in favour of the petitioner, not against him. From : Kerala V.R. KRISHNA IYER AND O. CHINNAPPA REDDY, JJ. Civil Appeals Nos.. 848, 849-850 of 1977 and 666-669 of 1978, D/- 1-4-1980. The State of Kerala and others etc., Appellants v. T. M. Peter and another etc. etc., Respondents. WITH The Cochin Town Planning Trust, Appellant v. T. M. Peter and others, Respondents. AND The Special Tahsildar (Land Acquisition) Town Planning Trust and another, Appellants v. The Cochin Town Planning Trust and another, Respondents. @page-SC1439 Law and development, as yet a Cinderella of our corpus juris, is a burgeoning branch of creative jurisprudence which needs to be nourished with judicious care, by courts in developing countries. The Town Planning Act, a developmental legislation amended and updated by the Kerala Legislature, was designed to draw up plans and to execute projects for the improvement of the towns and cities of that over-crowded State with its populous multitudes uncontrollably spiraling defying social hygiene and economic engineering. Although the Act is of 1932 and originally confined to the Travancore portion of the Kerala State, it has received amendatory attention and now applies to the whole of Kerala with beneficial impact upon explosive cities like Cochin. This legislation, naturally, made some deviation from the Kerala Land Acquisition Act, 1961, but having received insufficient attention from the draftsman on constitutional provisions, has landed the Act in litigation through a challenge in the High Court where it met with its judicial Waterloo when a Division Bench invalidated Ss. 31 (1) and 34 (2A) which were the strategic provisions whose exit from the statute would virtually scotch the whole measure. The State of Kerala has come up in appeal, although the immediate victim is the Cochin Town Planning Trust. = 1980 Lab. I. C. 735 From : 1979 Lab IC NOC 121 (Him Pra) V.R. KRISHNA IYER AND O. CHINNAPPA REDDY, JJ. Civil Appeal No. 2112 of 1979, D/- 11-4-1980. Amrik Singh and others, Appellants v. Union of India and others, Respondents. Competitive claims to seniority, dependent on the year of allotment in the Indian Police Service, fall for consideration in this appeal by special leave. We have expedited the hearing of the case since keeping officers in an unsettled state may be a factor which impairs their efficiency. = 1980 Lab. I. C. 742 From : 1971 Lab IC 1459 (Assam & Nagaland) V.R. KRISHNA IYER AND O. CHINNAPPA REDDY, JJ. Civil Appeals Nos.. 1303 of 1972 and 1538 of 1971, D/- 1-5-1980. Workmen of Sudder Workshop of Jorehaut Tea Co. Ltd., Appellant v. The Management of Jorehaut Tea Co. Ltd., Respondent and vice versa. These two appeals, turning on the validity of the retrenchment of 23 workmen way back in 1966, are amenable to common disposal. Mr. Phadke, appearing for the Management, argued straight to the point, so did Shri Mridul, with the result that we could get the hang of the case without much wrestling with time or getting paper-logged. Since, in substance, we are inclined to leave undisturbed the Award of the Industrial Tribunal, affirmed, as it were, by the High Court, both these appeals will be given short shrift with brief reasons. = 1980 Lab. I. C . 749 From : Delhi V.R. KRISHNA IYER AND O. CHINNAPPA REDDY, JJ. Civil Appeal No. 2686 of 1979, D/- 11-4-1980. R. R. Verma and others, Appellants v. The Union of India and others. Respondents. All India Services (Conditions of Service-Residuary Matters) Rules (1960), R.3 - Constitution of India, Art.14, Art.16 - Power to relax rules and regulations in certain cases under Rule 3 - R. 3 is not unconstitutional on ground that it vests unfettered discretion in Government. The Central Government is vested with a reserve power under Rule 3 to deal with unforeseen and unpredictable situations, and to relieve the civil servants from the infliction of undue hardship and to do justice and equity. It does not mean that the Central Government is free to do what they like, regardless of right or wrong; nor does it mean that the Courts are powerless to correct them. The Central Government is bound to exercise the power in the public interest with a view to secure civil servants of efficiency and integrity. When and only when undue hardship is caused by the application of the rules, the power to relax is to be exercised in a just and equitable manner but, again, only to the extent necessary for so dealing with the case. The exercise of the power of relaxation like all other administrative actions affecting rights of parties is subject to judicial review on grounds now well known. Viewed in this light Rule 3 is not unconstitutional on ground that it vests an unfettered discretion in the Government. (Para 4) From : (1980) 1 Serv LR 251 (Delhi) V.R. KRISHNA IYER AND D.A. DESAI, JJ. Civil Appeal No. 2736 of 1979, D/- 11-4-1980. Jiwan Kishore, Appellant v. Delhi Transport Corporation and another, Respondents. The sole question raised in this appeal is as to the age of the employee-appellant. There was a discrepancy, which was rather wide since the year of birth, according to one record was 1917 and according to another record 1927. In view of this considerable discrepancy, the employer, the Delhi Transport Corporation, appointed its Medical Board to fix the age of the appellant and according to the assessment of the age by the Medical Board, it is seen that he was 51 on 13-6-1975. We see no reason to ignore this scientific fixation of age when we have records which are flagrantly conflicting. Therefore, we fix the age of the appellant in partial allowance of his appeal at 51 on 13-6-1975. This means he will retire at the age of 58 on 12-6-1982. We are not impressed with the suggestion that we could pre-fix the age at the 1st of January of the year of retirement as per relevant regulation. We are not going into its vires in this case as both sides agree that if the court fixes the age as per the Medical Board's determination, they will accept and abide by it. On this footing we dispose of the appeal in partial allowance and set aside the order of retirement and further direct that appellant be continued in service with all the consequential benefits as a regular employee until 12-6-1982. Delhi Road Transporced by us in Civil Appeal No. 2112 of 1979 (reported in 1980 Lab IC 735 (SC)) The relevant facts may be gathered from that judgment. The further events requiring to be mentioned are these : While the writ petition filed by Ahluwalia in the High Court of Himachal Pradesh was pending, some of the respondents to the writ petition and one R. R. Verma all direct recruits, chose to file a writ petition in the Delhi High Court questioning the notice dated June 29, 1973, calling upon them to submit representations against the year of allotment proposed to be allotted to Sahney, Dhaliwal and Ahluwalia. After the writ petition of Ahluwalia was allowed, and after the Central Government passed the order dated July 27, 1979, pursuant to the direction issued by the High Court of Himachal Pradesh, the Delhi High Court dismissed the writ petition filed by the direct recruits as infructuous. The High Court, however, granted a certificate of fitness to appeal to this Court under Article 133 of the Constitution. Therefore, this appeal. The writ petition having been dismissed as infructuous we do not see how a certificate under Article 133 could have been granted. But, we do not want to dismiss the appeal on that preliminary ground. Shri R. K. Garg, learned counsel for the appellants challenged the order of the Central Government dated July 27, 1979 on three grounds: (1) Rule 3 of the All India Services (Conditions of Service-Residuary Matters) Rules, offended Article 14 of the Constitution and was ultra vires as it conferred arbitrary and uncanalised power upon the Central Government to grant relaxation whenever it pleased it to do so. (2) The discretion to relax the rules was wrongly exercised in the present case. (3) The Central Govt. was powerless to review its earlier orders as such a power of review was not expressly conferred by the rules. V.R. KRISHNA IYER AND O. CHINNAPPA REDDY, JJ. Criminal Appeal No. 287, Spl. Leave Petn. (Cri) No. 3115 and Criminal Misc. Petn. No. 3890 of 1979, D/- 2-5-1980. Rajender Kumar Jain v. State Through Spl. Police Establishment and others, Respondents. WITH Manohar Lal, Petitioner v. Bansi Lal and others, Respondents. AND Attorney General of India, Applicant v. State of Haryana and others, Respondents. Notwithstanding the fact that the offences for which the accused persons were to be tried were exclusively triable by a Court of Session, the Committing Magistrate had jurisdiction to give consent to the Public Prosecutor to withdraw from the prosecution. 1976 Andh LT 317, Overruled. (Para 7) There is no warrant for thinking that only the Court competent to discharge or acquit the accused under some other provisions of the Code can exercise the power under S. 321, Criminal Procedure Code. The power conferred by S. 321 is itself a special power conferred on the Court before whom a prosecution is pending and the exercise of the power is not made dependent upon the power of the Court to acquit or discharge the accused under some other provision of the Code. The power to discharge or acquit the accused under S. 321 is a special power founded on S. 321 itself, to be exercised by the Court independently of its power of enquiry into the offence or to try the accused. Again, the expression "judgment" in the context may be understood to mean the judgment which may be ultimately pronounced if the case were to be committed to a Court of Session. (Para 7) V.R. KRISHNA IYER, R.S. PATHAK AND O. CHINNAPPA REDDY, JJ. Civil Appeal No. 1312 of 1979, D/- 5-12-1979. Itwari Shikshan Sanstha, Appellant v. The Director of Education and others, Respondents. Dr. Ghatate appearing for the appellant contended that the teacher (respondent No. 3) who had been directed to be re-instated by the Deputy Director of Education should not have been so re-instated. He further contended that the Deputy Director had no jurisdiction to order such re-instatement. The dismissal which was set aside by the Educational Authorities in appeal was on certain charges, only one of which was stated to have been proved and the charge was that the teachers had gone on fast for a few days. The Deputy Director and the Director, therefore, cancelled the dismissal and directed re-instatement. This order was challenged in the High Court under Art. 226 but the appeal was dismissed in limine. V.R. KRISHNA IYER, R.S. PATHAK AND O. CHINNAPPA REDDY, JJ. Writ Petn. No. 1079 of 1979, D/- 29-4-1980. Prem Shankar Shukla, Petitioner v. Delhi Administration, Respondent. (On behalf of himself and O. Chinnappa Reddy, J.) :- "When they arrested my neighbour I did not protest. When they arrested the men and women in the opposite house I did not protest. And when they finally came for me, there was nobody left to protest". *(1) * 1. Pastor Niemoller This grim scenario burns into our judicial consciousness the moral emerging from the case being that if today freedom of one forlorn person falls to the police somewhere, tomorrow the freedom of many may fall elsewhere with none to whimper unless the court process invigilates in time and polices the police before it is too late. This futuristic thought, triggered off by a telegram from one Shukla, prisoner lodged in the Tihar Jail, has prompted the present 'habeas' proceedings. The brief message he sent runs thus : In spite of Court order and directions of your Lordship in Sunil Batra v. Delhi Admn. handcuffs are forced on me and others. Admit writ of Habeas Corpus. Those who are injured to handcuffs and bar fetters on others may ignore this grievance, but the guarantee of human dignity, which forms part of our constitutional culture, and the positive provisions of Articles 14, 19 and 21, spring into action when we realise that to manacle man is more than to mortify him: it is to dehumanize him and, therefore, to violate his very personhood, too often using the mask of 'dangerousness' and security. This sensitized perspective, shared by court and counsel alike, has prompted us to examine the issue from a fundamental viewpoint and not to dismiss it as a daily sight to be pitied and buried. Indeed, we have been informed that the High Court had earlier dismissed this petitioner's demand to be freed from fetters on his person but we are far from satisfied going by what is stated in Annexure A to the counter-affidavit of the Asst. Superintendent of Police, that the matter has received the constitutional concern it deserves. Annexure A to the counter-affidavit is a communication from the Delhi Administration for general guidance and makes disturbing reading as it has the flavour of legal advice and executive directive and makes mention of a petition for like relief in the High Court :- The petition was listed before Hon'ble Mr. Justice Yogeshwar Dayal of the Delhi High Court. After hearing arguments, the Hon'ble Court was pleased to dismiss the petition filed by the petitioner Shri. P. S. Shukla asking for directions for not putting the handcuffs when escorted from jail to the court and back to the jail. In view of the circumstances of the case, it was observed that the directions were needed. However it came to my notice that the requirements of Punjab Police Rules contained in Volume II Chapter 25 Rules 26, 22, 23 and High Court Rules and Orders Volume III Chapter 27 Rule 19 are not being complied with. I would also draw the attention of all concerned to the judgment delivered by Mr. Justice R. N. Aggarwal in Vishwa Nath v. State, Crl. Miscellaneous Main No. 430 of 1978, decided on 6-4-1979 wherein its has been observed that a better class under-trial be not handcuffed without recording the reasons in the daily diary for considering the necessity of the use of such a prisoner is being escorted to and from the court by the police, use of handcuffs be not resorted to unless there is a reasonable expectation that such prisoner will use violence or that an attempt will be made to rescue him. The practice of use of handcuffs be followed in accordance with the rules mentioned above. In plain language, it means that ordinary Indian under-trials shall be routinely handcuffed during transit between jail and court and the better class prisoner shall be so confined only if reasonably apprehended to be violent or rescued. Read Article: A "Brief Biography" - by Vinod Sethi |
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