- Possession of money is not basis of conviction.
- Demand for Illegal Gratification is Essential.
- Prosecution fails to prove the demand of illegal gratification,thus case of graft fails due to absence of demand .
Saturday, September 19, 2015
Anti-Corruption Case -Demand of Illegal Gratification Essential -S.C
Moot Points :
Full Text of Judgement
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 31 OF 2009
P. SATYANARAYANA MURTHY …APPELLANT
THE DIST. INSPECTOR OF POLICE
AND ANR. …RESPONDENTS
J U D G M E N T
AMITAVA ROY, J.
The instant appeal calls in question the judgment and order dated 25.4.2008 rendered by the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Appeal No. 262 of 2002, sustaining the conviction of the appellant under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Prevention of Corruption Act 1988 (for short hereinafter referred to as “the Act”) and sentence thereunder, however setting aside his conviction and sentence under Section 7 of the Act.
2. We have heard Mr. A.T.M. Ranga Ramanujam, learned senior counsel for the appellant and Ms. Prerna Singh, learned counsel for the respondents.
3. The prosecution case stems from a complaint laid by one S. Jagan Mohan Reddy (since deceased) to the Deputy Superintendent of Police, Anti Corruption Bureau, Kurnool alleging that the appellant who, at the relevant time was the Assistant Director, Commissionerate of Technical Education, Hyderabad had on 3.10.1996 demanded by way of illegal gratification Rs. 1000/- for effecting renewal of the recognition of his (complainant) typing institute, being run in the name and style of Rama Typewriting Institute in Laxminagar B. Camp, Kurnool since 1992. The complaint disclosed that on negotiation, the demand was scaled down to Rs. 500/- and the appellant asked him (complainant) to meet him on 4.10.1996 in Room No. 68 of Meenakshi Lodge, Kurnool with the money demanded. Acting on the complaint, a case was registered and a trap was laid on 4.10.1996 and he tainted currency notes were recovered, in the process thereof, from the possession of the appellant. On completion of the investigation, charge-sheet was filed against the appellant, whereafter the charges under Sections 7 & 13(1)(d)(i) & (ii) read with Section 13(2) of the Act were framed against him to which he pleaded “not guilty”. At the trial, the prosecution examined seven witnesses and also adduced documentary evidence in support of the charges. As the complainant- S. Jagan Mohan Reddy had expired prior thereto, he could not be examined by the prosecution.
4. After the closure of the evidence of the prosecution, the appellant was examined under Section 313 Cr.P.C. and was confronted with all the incriminating materials brought on record. He, however, denied the same.
5. The learned trial court, on an elaborate analysis of the evidence available, convicted the appellant under Sections 7 and 13(1)(d)(i) & (ii) read with Section 13(2) of 3 the Act and sentenced him to undergo R.I. for one year on each count and to pay fine of Rs. 1000/-, in default to suffer S.I. for three months for each offence. The sentences of imprisonment were, however, ordered to run concurrently.
6. As adverted to hereinabove, the High Court in the appeal preferred by the appellant, while upholding his conviction under Section 13(1)(d)(i) & (ii) read with Section13(2) of the Act, did set at naught his conviction under Section 7 of the Act. The sentence qua his conviction under Section 13(1)(d)(i) & (ii) read with Section 13(2) of the Act was, as a corollary, sustained.
7. The learned senior counsel for the appellant has insistently urged that the prosecution had failed to prove any demand for the alleged illegal gratification involved and, thus, the vitally essential ingredient of the offences both under Sections 7 and 13 of the Act being conspicuously absent, the appellant ought to have been acquitted of the charge on both counts. The learned senior counsel has maintained that even assuming without admitting that the recovery of the tainted notes from the appellant had been established, sans the proof of demand which is a sine qua non for an offence both under Sections 7 and 13 of the Act, the appellant’s conviction as recorded by the High Court is on the face of the record unsustainable in law and on facts. Without prejudice to the above, learned senior counsel has asserted that the money shown to have been recovered from the possession of the appellant was by no means an illegal gratification demanded by him, but was towards fees for renewal of the recognition of the complainant’s typing institute together with penalty and incidental expenses, and thus, his conviction under Section 13(1)(d)(i) & (ii)) read with Section 13(2) of the Act as sustained by the High Court, if allowed to stand, would result in travesty of justice.
8. Learned senior counsel for the appellant to buttress his contentions, placed reliance on the decision of this Court in B. Jayaraj vs. State of Andhra Pradesh (2014) 13 SCC 55.
9. Learned counsel for the State, as against this, has assiduously argued that the evidence of the prosecution witnesses, taken as a whole, demonstrably proved the demand, receipt and recovery of the illegal gratification sought for and as such no interference with the appellant’s conviction is warranted. According to the learned counsel, having regard to the office held by the appellant at the relevant point of time, he was even otherwise not authorized to receive any deposit towards the renewal of recognition of the complainant’s typing institute and that the evidence adduced by the prosecution did prove the complicity of the appellant in the offence for which he has been charged, beyond a reasonable doubt. In reinforcement of her pleas, learned counsel has drawn our attention to the relevant excerpts of the evidence on record more particularly that of PW1-S. Udaya Bhasker and PW3-G. Sudhakar.
10. Learned counsel for the respondents sought to distinguish the decision rendered in B. Jayaraj (supra) contending that in the face of persuasive evidence of demand on record, the same is of no avail to the appellant.
11. The materials on record have been duly traversed by us in order to adequately appreciate and weigh the competing contentions. Though dealt with exhaustively by the two courts below, having regard to the profuse reference to the evidence on record made in the course of the arguments, we consider it to be apt to advert thereto in bare essentials and to the extent indispensable.Admittedly, the complainant S. Jagan Mohan Reddy, the then Principal of the Rama Typewriting Institute, Laxminagar, B. Camp, Kurnool could not be examined as a witness for the prosecution, as he had expired before the trial. To reiterate, in his complaint lodged with the Deputy Superintendent of Police, Anti Corruption Bureau, Kurnool Range, Kurnool on 3.10.1996, he alleged that on the same date, the appellant, who was then the Assistant Director, Commissionerate of Technical Education, Hyderabad, had visited his institute and had pointed out that because of his omission to file an application for renewal of recognition thereof for the year 1997, cancellation of recognition would ensue resulting in loss of seniority of the institute. According to the complainant, situated thus, he requested for the assistance of the appellant who assured that it would be possible only if he was paid Rs. 1000/-. According to the complainant, he pleaded his inability to pay such amount. On this, the appellant reduced his demand to Rs. 500/- and instructed him (complainant) to meet him on 4.10.1996 in Room No. 68, Meenakshi Lodge, Kurnool along with challan of Rs. 360/-, being Rs. 60 as renewal fee and Rs. 300 as penalty. The complainant, being disinclined to pay the illegal gratification as demanded, lodged a complaint with the Deputy Superintendent of Police, Anti Corruption Bureau, Kurnool and sought action against the appellant.
12. After registering the complaint, the investigating agency initiated a proceeding for laying a trap on 4.10.1996 at the venue indicated by the appellant. In the course of preparatory steps, five currency notes of denomination of Rs. 100/- were arranged on which phenolphthalein powder was applied and were handed over to the complainant to be paid to the appellant on demand. PW1-S. Udaya Bhaskar was identified to accompany the complainant as an aspiring owner of a new proposed typewriting institute. The Me mbers of the trap team were briefed accordingly and instructions were given to the complainant to flag a signal in time for the interception of the appellant after he had received the tainted notes. Accordingly, the complainant accompanied by PW1-S. Udaya Bhaskar went to the place agreed upon i.e. Room No. 68, Meenakshi Lodge, Kurnool on 4.10.1996 with the trap team waiting outside for the signal to intervene. According to the prosecution, the complainant and PW1-S. Udaya Bhaskar did meet the appellant in Room No. 68, Meenakshi Lodge, Kurnool and on reaching the room, the complainant gave one renewal application along with the challan to the appellant who enquired as to whether he (complainant) had brought the amount which he had directed him to bring on the previous day. On this, the complainant took out Rs. 500/- from the pocket of his shirt on which the phenolphthalein powder had been applied and handed over the same to the appellant. The prosecution version is that the appellant, accordingly, kept the amount in the pocket of his shirt and it was then on signal being received by the trap team, he was interepted and apprehended with the money accepted by him.
13. PW1-S. Udaya Bhaskar has stated on oath that at the relevant point of time, he was the Assistant Engineer in Panchayat Raj Department, Orvakal and that as planned by the investigating agency to entrap the appellant, he along with the complainant had gone to room No. 68, Meenakshi Lodge, Kurnool on 4.10.1996 for meeting the appellant. Both of them entered into the room of appellant, whereupon the complainant handed over one renewal application along with the challan to the appellant.This witness stated that on this, the appellant enquired as to whether the complainant had brought the amount which he had directed him to bring on the previous day. The witness stated that the complainant then took out the currency notes amounting to Rs. 500/- from the pocket of his shirt as arranged and did hand over the same to the complainant, who after counting the same, kept those in the pocket of his shirt. The witness also testified, that he then told the appellant that he too had started a typing institute and would require a license. The appellant, in reply, asked him to do the needful as others had been doing. According to this witness, while he was talking to the appellant, as previously arranged, the complainant signalled the trap team, whereupon the appellant was apprehended and the currency notes were recovered from him. On verification, the said notes tallied with those which had been decided to be used in the trap operation. The fingers of the hands of the appellants, when dipped in the sodium carbonate solution also turned pink. The pocket of the shirt of the appellant, as testified by this witness, also turned pink when rinsed in sodium carbonate solution.
14. The evidence of PW3-S. Sivaiah Naidu is to the effect that he, on 6.8.1996 had made an application to the Technical Board for recognition of his institute, whereafter on 3.10.1996, the appellant in the capacity of Assistant Director of Technical Education, inspected his institute and verified all records. According to this witness, when he enquired about the recognition certificate, the appellant stated that unless some amount was paid to him way of gratification, he would not issue the recognition certificate. The witness alleged that he too was asked to meet the appellant in Room No. 68, Meenakshi Lodge,Kurnool at 8.30 P.M 15. PW7-Iliyase Sait, who at the relevant time was posted as Deputy Superintendent of Police, Kurnool Range, Kurnool, in his evidence narrated in detail the steps taken to arrange for the trap to nab the appellant, instructions to the members of the trap team, recovery of five currency notes amounting to Rs. 500/- smeared with phenolphthalein powder from the possession of the appellant and submission of charge-sheet against him on completion of the investigation.
16. The evidence of other witnesses being not essentially related to the aspect of demand, receipt and recovery of the amount of illegal gratification with which the appellant had been charged, does not call for a detailed reference.17. It is expedient at this juncture to set out the relevant extracts of Sections 7 (as it stands today) and 13 of the Act under which the appellant had been charged. “7. Public servant taking gratification other than legal remuneration in respect of an official act: Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine.”
“13. Criminal misconduct by a public servant
(1)A public servant is said to commit the offence of criminal misconduct,-
(d) if he,-
(i)by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;”
18.This Court in A. Subair vs. State of Kerala (2009)6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act 14 ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
19.In State of Kerala and another vs. C.P. Rao (2011) 6 SCC 450, this Court,reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
20.In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d) (i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.
21.The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.
22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.
23. The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW1-S. Udaya Bhaskar. The substance of his testimony, as has been alluded to hereinabove, would disclose qua the aspect of demand, that when the complainant did hand over to the appellant the renewal application, the latter enquired from the complainant as to whether he had brought the amount which he directed him to bring on the previous day, whereupon the complainant took out Rs. 500/- from the pocket of his shirt and handed over the same to the appellant. Though, a very spirited endeavour has been made by the learned counsel for the State to co-relate this statement of PW1- S. Udaya Bhaskar to the attendant facts and circumstances including the recovery of this amount from the possession of the appellant by the trap team, identification of the currency notes used in the trap operation and also the chemical reaction of the sodium carbonate solution qua the appellant, we are left unpersuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt. Even if the evidence of PW1- S. Udaya Bhaskar is accepted on the face value, it falls short of the quality and decisiveness of the proof of demand of illegal gratification as enjoined by law to hold that the offence under Section 7 or 13(1)(d)(i)&(ii) of the Act has been proved.True it is,that on the demise of the complainant, primary evidence, if any,of the demand is not forthcoming. According to the prosecution, the demand had in fact been made on 3.10.1996 by the appellant to the complainant and on his complaint, the trap was laid on the next date i.e. 4.10.1996. However, the testimony of PW1- S. Udaya Bhaskar does not reproduce the demand allegedly made by the appellant to the complainant which can be construed to be one as contemplated in law to enter a finding that the offence under Section 7 or 13(1)(d)(i)&(ii) of the Act against the appellant has been proved beyond reasonable doubt.
24. In our estimate, to hold on the basis of the evidence on record that the culpability of the appellant under Sections 7 and 13(1)(d)(i)&(ii) has been proved, would be an inferential deduction which is impermissible in law. Noticeably, the High Court had acquitted the appellant of the charge under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against the same. The analysis undertaken as hereinabove qua Sections 7 and 13(1)(d)(i)&(ii) of the Act, thus, had been to underscore the indispensability of the proof of demand of illegal gratification.
25. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas vs. State of Assam (2013)12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.
26. The materials on record when judged on the touch stone of the legal principles adumbrated here in above, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, we are constrained to hold that it would be wholly un-safe to sustain the conviction of the appellant under Section 13(1) (d)(i)&(ii) read with Section 13(2) of the Act as well. In the result, the appeal succeeds. The impugned judgment and order of the High Court is hereby set-aside. The appellant is on bail. His bail bond stands discharged. Original record be sent back immediately.
.CJI. (H.L. DATTU)
J.(V. GOPALA GOWDA)
SEPTEMBER 14, 2015.
Sunday, August 9, 2015
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO.135 OF 2015
Yakub Abdul Razak Memon ... Petitioner
State of Maharashtra and Anr. ... Respondents
J U D G M E N T
Dipak Misra, J.
1.The issue that had seen the end after the day’s drill at 4.15 p.m. yesterday, i.e., 29.07.2015, appears to have unending character because precisely after ten hours, about 3.15 a.m. on 30.07.2015, it has risen like a phoenix possibly harbouring the idea that it has the potentiality to urge for a second lease of life as put forth by Mr. Anand Grover, learned Senior Counsel and Mr. Yug Chaudhry, learned counsel, appearing for the petitioner, stating that the assail has become inevitable after the President of India in exercise of his power under Article 72 of the Constitution has rejected the mercy petition preferred by the petitioner.Be it stated,it is contended by the learned counsel for the petitioner that by virtue of the rejection of the mercy petition, the death warrant issued on 30.4.2015 would be executed today, without waiting for 14 days, and hence, there should be a grant of stay.
2. We may mention that, before the ink in the earlier judgment has dried up, the present writ petition has been filed by the petitioner assailing the legal justifiability of the execution warrant dated 30.04.2015 issued by the Presiding officer, Designated TADA Court, Mumbai, for execution of the petitioner at 7.00 a.m. on 30.07.2015 and further to direct the stay of the petitioner’s execution till the instant writ petition is disposed of.
3.We do not have to adumbrate the facts in entirety as the facts of the instant case have been elaborately stated in W.P. (Crl.) No. 129 of 2015 which has been dismissed on 29.07.2015. In the earlier writ petition, the prayer, in quintessentiality, was made for setting aside the death warrant issued by the Designated TADA Court, Mumbai. The grounds were many but we must state with certitude that they did not find favour with us. Mr. Grover, learned Senior Counsel would submit that it might appear that the prayers in the present petition are the same and anyone may foster the idea that an effort has been made in a contrived manner to procrastinate the date of execution of the convict, but it is not so. He would further submit that by the occurrence of subsequent events that took place after the pronouncement of the judgment, fresh grounds have emerged which could not have been conceived of at the time when the matter was argued.It is urged that though the prayer is the same, yet the grounds are totally different.
4. At this juncture, the subsequent event which has been accentuated upon by Mr. Grover, learned Senior Counsel and Mr. Chaudhry, learned counsel, needs to be noted. After we dismissed the earlier writ petition being W.P.(Crl) No. 129 of 2015, the President of India rejected the mercy petition of the petitioner. The fulcrum of the submission of Mr. Grover is that the petitioner is entitled in law to challenge the same albeit on a limited ground and, therefore, a three-Judge Bench of this Court in Shatrughan Chauhan & Anr. V. Union of India & ors. (2014) 3 SCC has, upon perusal of various jail manuals which exhibited 1 discrepancies, intended to rationalise by laying down a minimum period so that the convict can make certain arrangements. To put it succinctly, when a mercy petition is rejected, there has to be a minimum period of 14 days between its rejection being communicated to the petitioner and his family and the scheduled date of execution. That apart, minimum period of 14 days is stipulated between the communication of the death warrant to the petitioner and the scheduled date of execution.
5. Mr. Grover, learned senior Counsel appearing for the petitioner, would contend that both the conditions are to be satisfied as they are cumulative in nature. There can be no cavil over the same. First, to the second condition. The death warrant was issued on 30.04.2015 which was admittedly received by the petitioner on 13.07.2015 and the date of its execution is 30.07.2015, i.e., today. Thus, one of the facets is met with. As far as the first aspect is concerned, in the earlier judgment passed in W.P.(Crl) No. 129/2015, this Court has held thus:- “After the judgment was pronounced on 21.03.2013,an application for review was filed, which was dismissed by circulation on 30.07.2013. After the rejection of the application for review, Suleman, the brother of the petitioner, represented under Article 72 of the Constitution to the President of India on 06.08.2013, claiming benefits under Article 72(1) of the Constitution. The petitioner on 07.08.2013, wrote to the Superintendent, Central Jail, Nagpur, informing him about receipt of petition by the office of the President of India. On 02.09.2013, the Government of India forwarded the mercy petition of the convict addressed to the President of India, to the
Principal Secretary, Home Department, Mahrashtra,as per the procedure. The Governor of Maharashtra rejected representation on 14.11.2013 and on 30.09.2013, the State Government informed the Central Government about rejection of the mercy petition by the governor of Maharashtra. On receipt of the said communication from the State Government on 10.03.2014, the summary of the case/mercy petition prepared by the Ministry of Home Affairs under the signatures of Home Minister was forwarded to the Petitioner. The said rejection was communicated to the stipulation that the convict be informed and, accordingly, on 26.05.2014, the petitioner was informed about the rejection of mercy petition by the President of India.” We have reproduced the whole paragraph as they state the facts in completeness. Before we proceed with regard to the necessity for grant of 14 days’ time after receipt of communication of the rejection of the mercy petition, it is appropriate to refer to paragraph 241.7 of the Shatrughan Chauhan’s case (supra) which reads as follows:- “241.7. Some Prison Manuals do not provide for any minimum period between the rejection of the mercy petition being communicated to the prisoner and his family and the scheduled date of execution. Some Prison Manulas have a minimum period of 1 day, others have a minimum period of 14 days. It is necessary that a minimum period of 14 days be stipulated between the receipt of communication of the rejection of the mercy petition and the scheduled date of execution for the following reasons: (a) It allows the prisoner to prepare himself mentally for execution, to make his peace with God, prepare his will and settle other earthly affairs.(b) It allows the prisoner to have a last and final meeting with his family members. It also allows the prisoners’ family members to make arrangements to travel to the prison which may be located at a distant place and meet the prisoner for the last time.Without sufficient notice of the scheduled date of execution, the prisoners’ right to avail of judicial remedies will be thwarted and they will be prevented from having a last and final meeting with their families.”It is urged by Mr. Grover, learned Senior Counsel and Mr. Chaudhry, learned counsel that the first mercy petition was submitted by Suleman, brother of the petitioner, on 06.08.2013 which stood rejected on 11.04.2014 by the President of India and that was communicated to the petitioner on 26.05.2014, but the petitioner had not submitted any mercy petition.
6.There is no dispute over the fact that the petitioner had not submitted any representation invoking the authority of the President of India under Article 72 of the Constitution of India. However, it is not in dispute that his brother had submitted. It is also beyond dispute that the petitioner does not disown the submission of the petition by his brother on his behalf. In fact,he had communicated to the Superintendent, Central Jail,Nagpur, on 07.08.2013, informing him about receipt of the petition by the office of the President of India so as to pursue the same. The said mercy petition as has been indicated earlier stood rejected on 11.04.2014.The petitioner did not think it appropriate to challenge the rejection of the mercy petition by the President of India. He accepted his fate.
7. Be it stated here, the mercy petition was preferred on 6.08.2013 and prior to that, the review petition was dismissed by circulation on 30.07.2013 by the two-Judge Bench of this Court which had decided the appeal on 21.03.2013. As is evident, the constitutional validity of the rule relating to review was called in question before this Court. The Constitution Bench in Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India and Ors.2 dealing with the said rule opined that in death cases, the matter should be heard by a three-Judge Bench and the review petition should be heard in the open court by giving maximum time limit of 30 minutes to the convict.
8. Since the petitioner had not filed a curative petition, he was entitled to seek reopening of the review petition, as per the 2 (2014) 9 SCC 737 liberty granted to certain categories of cases in Mohd. Arif Alias Ashfaq (supra). Accordingly, his review petition was heard by a three-Judge Bench in the open Court. After rejection of the said review petition on 09.04.2015, he filed a curative petition on 22.05.2015 which also got dismissed on 21.07.2015. At this stage, it is imperative to state that despite the Constitution Bench saying that there shall be oral hearing of the application for review for a maximum period of 30 minutes, the review petition was heard for almost ten days. The purpose of mentioning the same is that ample opportunity was afforded to the petitioner.
9. After rejection of the curative petition on the 21.07.2015, the petitioner submitted a mercy petition to the Governor, Maharashtra which was received on 22.07.2015. He also submitted another mercy petition to the President of India which was received by the President of India at 2.00 p.m. on 29.07.2015. Both these mercy petitions have been rejected.
10. It is submitted by Mr. Grover, learned Senior Counsel, that as per the principle stated in Shatrughan Chauhan (supra), the petitioner is entitled to claim commutation of death sentence to life imprisonment on the basis of supervening circumstances. For the said purpose, he has referred to paragraphs 28 and 29 of the decision in Shatrughan Chauhan (supra) which read as under:- “28. The petitioners herein have asserted the following events as the supervening circumstances, for communication of death sentence to life imprisonment: (i) Delay (ii) Insanity (iii)Solitary confinement (iv)Judgments declared per incuriam(v) Procedural laspses . All the petitioners have more or less asserted on the aforesaid grounds which, in their opinion, the executive had failed to take note of while rejecting the mercy petitions filed by them. Let us discuss them distinctively and come to a conclusion whether each of the circumstances exclusively or together warrants the communication of death sentence into life imprisonment.”
What is submitted today is that the petitioner can challenge the rejection of the mercy petition only when it is formally served on him, for the counsel for the petitioner have only come to know from the news report about the rejection of the mercy petition by the President of India. Thus, 14 days’ time has not been granted and he has been deprived of the right to assail the same. As has been stated earlier, the said stand has been sought to be highlighted on the basis of the reasons stated in paragraph 241.7 of the case of Shatrughan Chauhan (supra). Pyramiding the said submission, it is propounded by Mr. Grover, learned Senior Counsel and Mr. Chaudhry, learned counsel that in the absence of any time to assail the rejection of the mercy petition, the execution of death warrant deserves to be stayed.
11. The question that emerges for consideration is whether on the ground of not granting of 14 days’ time from the date of receipt of communication of rejection of the mercy petition, should the warrant which is going to be executed at 7.00 a.m. on 30.07.2015 be stayed. Mr. Mukul Rohatgi, learned Attorney General for India, appearing for the respondent, would submit that the mercy petition is considered by the President of India in exercise of his power under Article 72 of the Constitution of India and when he has rejected the mercy petition after due consideration of all the relevant facts on earlier occasion, if such kind of repetitive mercy petitions are allowed to be submitted and further challenge to the rejection of the same is permitted, the danger of the concept of ad infinitum would enter into the field. Mr. Rohatgi would further contend that at the drop of a hat, everybody can add a new fact or a new development and expect the President of India to deal with it as contemplated under Article 72 of the Constitution of India and, thereafter, challenge the same in a court of law.
12. The instant petition is a clear expose of the manipulation of the principle of rule of law. The petitioner was tried for which is known as “Bombay Blast Case’ and stood convicted in the year 2007. Almost 22 years have passed since 1993 when the incident occurred. We have not perceived any error in the issue of the death warrant as per our order dated 29.07.2015 passed in W.P. (Crl) No.129 of 2015. The only exception which has been enthusiastically carved out by Mr. Grover, learned Senior Counsel and Mr. Chaudhry, learned counsel is that they are entitled to get 14 days’ time to assail the rejection of the mercy petition. When the first mercy petition was rejected on 11.04.2014, there was sufficient time available to the petitioner
to make arrangement for his family members to meet him in prison and make necessary worldly arrangements. There was adequate time to prepare himself to meet his Maker and to make peace with himself. We have been apprised by Mr. Rohatgi, learned Attorney General for India that the family was allowed to meet the petitioner whenever they desired as per the Jail Manual.
13. The residuary part of the submissions put forth by the learned counsel for the petitioner is that the petitioner can still challenge the rejection of his mercy petition. On a first glance, the aforesaid submission may look quite attractive, but in the present case the same does not have much commendation because the rejection of the first mercy petition by the President of India could have been assailed before this Court, but it was
not done. We have been apprised that the copy of the order of rejection of the mercy petition has been sent to the petitioner, but the fact remains that after the rejection of the first mercy petition, despite sufficient time, the petitioner chose not to challenge the same. We do not think that it is a case of such nature where it can be said that legal remedy was denied to the petitioner. True it is, the first mercy petition was submitted by the brother of the petitioner, but as the facts would clearly show, he was aware of the same. Learned Attorney General would contend that the petitioner, in fact, had written a letter to the concerned Superintendent of Jail pertaining to the same. Regard being had to the totality of facts and circumstances of this case, we are not inclined to accept the submission that the present mercy petition was preferred by the petitioner for the first time and, therefore, 14 days’ time should be granted so that he can do the needful as per law. In our considered opinion, to grant him further time to challenge the rejection of the second mercy petition for which we have to stay the execution of the death warrant dated 30.04.2015 would be nothing but travesty of justice.
14.Resultantly,we do not perceive any merit in this writ petition and the same is, accordingly, dismissed.
J.[Prafulla C. Pant]
J. [Amitava Roy]
July 30, 2015
Courtesy : Supreme Court of India website
Monday, July 20, 2015
Unwed mother can be sole guardian without consent of father
Key Points in the progressive Judgement of Apex Court :
- On the crucial issue of guardianship of child by unwed mother without consent of father,this judgement solves the problem[embarrassing]of unwed mother,who don't want to disclose the name of the father for various reasons eg.Right to privacy.
- In this case ,an application under Section 7 of the Guardians and Wards Act, 1890 (the Act)was before the Guardian Court for declaring her the sole guardian of her son.
- Mother refused to disclose the name of the father and his whereabouts,it is also pressed to the fore that her own fundamental right to privacy will be violated if she is compelled to disclose the name and particulars of the father of her child.
- Paper notification was issued to the effect,father name was not revealed.
- The Guardian Court directed her to reveal the name and whereabouts of the father and consequent to her refusal to do so, dismissed her guardianship application on 19.4.2011
- The Court are supposed to exercise paren patrae jurisdiction in custody or guardianship wrangles; it steps in to secure the welfare of the hapless child of two adults whose personal differences and animosity has taken precedence over the future of their child.
- This is a brooding reality as the father is already married and any publicity as to a declaration of his fathering a child out of wedlock would have pernicious repercussions to his present family. There would be severe social complications for her and her child. As per Section 7 of the Act, the interest of the minor is the only relevant factor for appointing of a guardian, and the rights of the mother and father are subservient thereto.
- Supreme Court held that : In this scenario, the interest of the child would be best served by immediately appointing the Appellant as the guardian.
Full Text of Hon'ble Supreme Court of India Judgement :
IN THE SUPRME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. ........ OF 2015
[Arising out of SLP (Civil) No. 28367 of 2011]
ABC ... Appellant
The State (NCT of Delhi) ... Respondent
J U D G M E N T
VIKRAMAJIT SEN, J.
A legal nodus of seminal significance and of prosaic procedural origination presents itself before us. The conundrum is whether it is imperative for an unwed mother to specifically notify the putative father of the child whom she has given birth to of her petition for appointment as the guardian of her child.The common perception would be that three competing legal interests would arise,namely,of the mother and the father and the child.We think that it is only the last one which is conclusive, since the parents in actuality have only legal obligations. A child, as has been ubiquitously articulated in different legal forums,is not a chattel or a ball to be shuttled or shunted from one parent to the other.The Court exercises paren patrae jurisdiction in custody or guardianship wrangles; it steps in to secure the welfare of the hapless child of two adults whose personal differences and animosity has taken precedence over the future of their child.
This Appeal is directed against the Judgment dated 8.8.2011 delivered by the High Court of Delhi, which has dismissed the First Appeal of the Appellant,who is an unwed mother, holding that her guardianship application cannot be entertained unless she discloses the name and address of the father of her child, thereby enabling the Court to issue process to him. As per the Appellant’s request, her identity and personal details as well as those of her son have not been revealed herein.The Appellant, who adheres to the Christian faith, is well educated, gainfully employed and financially secure. She gave birth to her son in 2010, and has subsequently raised him without any assistance from or involvement of his putative father. Desirous of making her son her nominee in all her savings and other insurance policies, she took steps in this direction, but was informed that she must either declare the name of the father or get a guardianship/adoption certificate from the Court. She thereupon filed an application under Section 7 of the Guardians and Wards Act, 1890 (the Act)before the Guardian Court for declaring her the sole guardian of her son. Section 11 of the Act requires a notice to be sent to the parents of the child before a guardian is appointed. The Appellant has published a notice of the petition in a daily newspaper, namely Vir Arjun, Delhi Edition but is strongly averse to naming the father. She has filed an affidavit stating that if at any time in the future the father of her son raises any objections regarding his guardianship, the same may be revoked or altered as the situation may require.However, the Guardian Court directed her to reveal the name and whereabouts of the father and consequent to her refusal to do so, dismissed her guardianship application on 19.4.2011. The Appellant’s appeal before the High Court was dismissed in limine , on the reasoning that her allegation that she is a single mother could only be decided after notice is issued to the father; that a natural father could have an interest in the welfare and custody of his child even if there is no marriage; and that no case can be decided in the absence of a necessary party.Ms. Indu Malhotra, learned Senior Counsel for the Appellant, has vehemently argued before us that the Appellant does not want the future of her child to be marred by any controversy regarding his paternity, which would indubitably result should the father refuse to acknowledge the child as his own.
This is a brooding reality as the father is already married and any publicity as to a declaration of his fathering a child out of wedlock would have pernicious repercussions to his present family. There would be severe social complications for her and her child. As per Section 7 of the Act, the interest of the minor is the only relevant factor for appointing of a guardian, and the rights of the mother and father are subservient thereto. In this scenario, the interest of the child would be best served by immediately appointing the Appellant as the guardian.
Furthermore, it is also pressed to the fore that her own fundamental right to privacy will be violated if she is compelled to disclose the name and particulars of the father of her child. Ms. Malhotra has painstakingly argued this Appeal, fully cognizant that the question that arises is of far reaching dimensions. It is this very feature that convinced us of the expediency of appointing amicus curiae , and Mr. Sidharth Luthra has discharged these onerous duties zealously, for which we must immediately record our indebtedness.It would be pertinent to succinctly consider the Guardians and Wards Act, 1890. The Act, which applies to Christians in India, lays down the procedure by which guardians are to be appointed by the Jurisdictional Court. Sections 7, 11and 19 deserve extraction, for facility of reference. Power of the court to make order as to guardianship
(1) Where the court is satisfied that it is for the welfare of a minor that an order should be made-
(a) appointing a guardian of his person or property, or both,
(b) declaring a person to be such a guardian, the court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.”
Courtesy : Supreme Court of India website