Sunday, January 31, 2010

POONAM CHAND JAIN & ANR. Versus FAZRU

PRACTICE & PROCEDURE
Repeated complaints on same facts - Complainant alleging fraud by appellants for inducing him to execute and register various sale deeds - Complaint discarded by Magistrate- Revision there-against dismissed - Dismissal not challenged- Finality attained - Civil suit filed on same allegations - Dismissed - Said order became final as not challenged - Meanwhile appellants filed several suits which succeeded with costs - Again no challenge made and finality attained - Second complaint filed by the respondent before Magistrate on same facts - Fact of filing of first complaint and its dismissal, suppressed - Appellants summoned - In criminal revision summoning order set aside - Respondent filed a criminal revision and order summoning appellants restored - SLP filed - Matter remanded to High Court - Summoning order upheld - Whether once an order of dismissal of complaint attains finality, second complaint can be filed on identical facts . Held, facts in the second complaint were almost identical with facts in the first one which was dismissed on merits. The case is also not covered by the exceptional circumstances cited in Pramatha Nath's case relied. Thus second complaint was not maintainable.


Complaints on similar facts - Whether second complaint on identical facts can be entertained when first one has been dismissed on merits and dismissal has attained finality. Held, it can be done only in exceptional circumstances cited in Pramatha Nath's case.



Supreme Court of India

Criminal Appeal No.203 of 2010

Judge(s): G.S SINGHVI,ASOK KUMAR GANGULY

Date of Judgment: Thursday, January 28, 2010

POONAM CHAND JAIN & ANR. Versus FAZRU


J U D G M E N T

GANGULY, J

1. Leave granted.

2. Assailing the judgment of High Court dated 05.02.2009 rendered in Criminal revision No. 552/2000 this appeal was filed.

3. The main contention of the appellants before this Court is that without any colour of right the respondent herein repeatedly filed complaints on same facts and the High Court without proper appreciation of the facts and the legal position allowed the revision petition of the respondent and caused a grave failure of justice.

4. The material facts are that a complaint was filed by the respondent in the court of judicial Magistrate 1st Class, Nuh on or about 10.06.1992 alleging therein that the appellants who own and possess his own house at Faridabad came into contact with the respondent and ultimately won the confidence of the respondent. In the complaint it was alleged that the respondent is an illiterate, innocent person with a poor village background and he was induced to purchase some land at village Mohammedpur for and on behalf of the appellants. Thus the respondent entered into an agreement to sell different plots of land of about 60 acres at Mohammedpur village.

5. The said complaint further alleges that various sale deeds were executed and registered and respondent was given the impression that those deeds were registered in the names of appellants and the respondent jointly.

6. It is further alleged that the respondent was asked to put his thumb impression on the sale deeds and he was further assured that the land situated in village Mohammedpur, Nuh will be transferred in their joint names of appellants and the respondent.

7. According to the complaint, fraud was thus played on the respondent by the appellants and when the respondent realized the same he allegedly filed a complaint in Chhitranjan Park police Station on 28.06.1991 but that police station failed to take any action inter alia on the ground that the entire thing took place beyond their territorial jurisdiction.

8. The further case in the complaint is that the respondent wanted to file complaint before local police station but as the police failed to take any step, the complaint was filed before the Magistrate complaining of offences under Sections 420/120B/426 IPC.

9. On such complaint the matter was taken up by the Judicial Magistrate Ist Class, Nuh and ultimately after a detailed analysis of factual and legal position, the Judicial Magistrate Ist Class came to a conclusion on 13.01.1994 to the following effect:

"Thus the whole story of the complainant is bundle of falsehood and is liable to be discarded forthwith without going further in the investigation of the allegations. Hence the complaint is dismissed u/s 420 IPC also qua accused no. 1. Record be consigned."

10. Challenging the order of the Magistrate, a revision petition was filed in the High Court of Punjab and Haryana by the respondent. The said revision petition was also dismissed by order dated 12.02.1996 and while dismissing the petition the High Court recorded the following finding:

"Having gone through the judgment of the trial court and hearing counsel for the parties, I am of the view that the case is not for interference. Dismissed."

11. High Court's finding was not challenged and attained finality. It may be noted that respondent also filed a civil suit on inter alia the same allegations. The said Civil Suit was numbered as 599/92 and was dismissed for default by the learned Civil Judge, Junior Division, Nuh.

12. The said order of dismissal of the suit became final since no attempt was made to challenge the same.

13. In the meantime, the appellants filed several suits some of which were filed by several companies against the respondent for permanent injunction and other relief. These suits were numbered as follows:

"(i) Suit No. 241/89 filed by M/s. SPML India Ltd along with Suman Malik, w/o Balkishan / Usman Absul Rahim & Hanif v. Fazru s/o Bher Khan and Rahim Bux s/o Shri Kaho Khan

(ii) Suit No.242/89 dated 28.11.1989 title M/s. SPML India Limited and others vs. Fazru and others.

(iii) Suit No.243/89 dated 21.11.1989 title Poonam Chand Sethi and other vs. Fazru and others.

(iv) Suit No.244/89 title M/s. SPML India

Limited vs. Fazru and others."

14. All the suits which were filed against respondent were clubbed as common questions were involved and there was an analogous hearing.

15. All the four suits succeeded with costs and defendants including the respondents were prevented from the dispossessing the plaintiff over the suit land except in the process established by law. Before passing the final decree the Civil Court came to the following finding:

"23. From the oral as well as documentary evidence led by the plaintiffs, it is proved that the plaintiffs have purchased the suit land from its original owners and Usman, Hanif and Abdul Rahim are in cultivating possession of the suit land as a lessee. The defendant no.1 has himself admitted that he is not in possession of the suit land. The defendant no.2 has already admitted the claim of the plaintiffs. Therefore, it is concluded that the plaintiffs are entitled to the decree of permanent injunction as prayed for. Hence, this issue is decided in favour of the plaintiffs and against the defendants."

16. The aforesaid decree passed on 27.10.1997 was not challenged by the respondent and therefore become final.

17. After the civil suits were decreed on 24.10.97, just a month thereafter on 25.11.97 another complaint was filed by the respondent in the Court of Judicial Magistrate on virtually the same facts. In fact, paragraphs 4, 6, 7 and 9 of the subsequent complaint has a striking similarity with the previous one. It may be mentioned that in the second complaint the fact of filing of the first complaint and its dismissal was totally suppressed.

18. On such complaint the Magistrate passed an order summoning the appellants 1 and 2. Challenging the said order of summoning the appellants, the appellants moved a criminal revision before the Court of Additional Sessions Judge, Gurgaon and the Additional Sessions Judge, Gurgaon allowed the revision and the summoning order was set aside by an order dated 9.7.99. Against that order the respondent moved a criminal revision being Criminal Revision No.552 of 2000 before the High Court and the Hon'ble High Court reversed the order passed by the Additional Sessions Judge and directed the appellants to appear before the trial Court where appellants were given liberty to raise all the points and seek reconsideration of the order in accordance with Section 245 of Criminal Procedure Code.

19. Against that order the appellants filed a special leave petition before this Court wherein leave was granted and it was numbered as Criminal Appeal No.371/04.

20. In the said criminal appeal this Court remanded the matter to the High Court for recording positive finding on relevant issues. This Court while remanding the matter was of the opinion that High Court has not considered the legality of the order directing issuance of summon keeping in view the law laid down by this Court. The exact directions given by this Court in its concluding portion vide order dated 15.10.04 in the aforesaid criminal appeal is as follows:

"As the High Court has not considered the legality of the order directing issuance of process keeping in view the law laid down by this Court, we feel it would be proper to remit the matter to the High Court to record positive findings on the relevant issues".

21. After the matter was remanded to the High Court, the High Court passed the impugned judgment holding therein that the Magistrate's order dated 9.1.99 whereby the appellants have been summoned is restored and the appellants were asked to face trial.

22. In the background of these facts, the question which crops-up for determination by this Court is whether after an order of dismissal of complaint has attains finality, the complainant can file another complaint on almost identical facts without disclosing in the second complaint the fact of either filing of the first complaint or its dismissal.

23. Almost similar questions came up for consideration before this Court in the case of Pramatha Nath Talukdar and another vs. Saroj Ranjan Sarkar - (AIR 1962 SC 876). The majority judgment in Pramatha Nath (supra) was delivered by Justice Kapur. His Lordship held that an order of dismissal under Section 203 of the Criminal Procedure Code (for short `the Code') is, however, no bar to the entertainment of a second complaint on the same facts but it can be entertained only in exceptional circumstances. This Court explained the exceptional circumstances as (a) where the previous order was passed on incomplete record (b) or on a misunderstanding of the nature of the complaint (c) or the order which was passed was manifestly absurd, unjust or foolish or (d) where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings. This Court made it very clear that interest of justice cannot permit that after a decision has been given on a complaint upon full consideration of the case, the complainant should be given another opportunity to have the complaint enquired into again. In paragraph 50 of the judgment the majority judgment of this Court opined that fresh evidence or fresh facts must be such which could not with reasonable diligence have been brought on record. This Court very clearly held that it cannot be settled law which permits the complainant to place some evidence before the Magistrate which are in his possession and then if the complaint is dismissed adduce some more evidence. According to this Court such a course is not permitted on a correct view of the law. (para 50, page 899)

24. This question again came up for consideration before this Court in Jatinder Singh and others vs. Ranjit Kaur - (AIR 2001 SC 784). There also this Court by relying on the principle in Pramatha Nath (supra) held that there is no provision in the Code or in any other statute which debars complainant from filing a second complaint on the same allegation as in the first complaint. But this Court added when a Magistrate conducts an enquiry under Section 202 of the Code and dismisses a complaint on merits a second complaint on the same facts could not be made unless there are `exceptional circumstances'. This Court held in para 12 if the dismissal of the first complaint is not on merit but the dismissal is for the default of the complainant then there is no bar in the filing a second complaint on the same facts. However if the dismissal of the complaint under Section 203 of the Code was on merit the position will be different. Saying so, the learned Judges held that the controversy has been settled by this Court in Pramatha Nath (supra) and quoted the observation of Justice Kapur in paragraph 48 of Pramatha Nath (supra):-

"......An order of dismissal under S. 203, Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into......"

25. Again in Mahesh Chand vs. B. Janardhan Reddy and another - (2003) 1 SCC 734, a three Judge Bench of this Court considered this question in paragraph 19 at page 740 of the report. The learned Judges of this court held that a second complaint is not completely barred nor is there any statutory bar in filing a second complaint on the same facts in a case where a previous complaint was dismissed without assigning any reason. The Magistrate under Section 204 of the Code can take cognizance of an offence and issue process if there is sufficient ground for proceeding. In Mahesh Chand (supra) this Court relied on the ratio in Pramatha Nath (supra) and held if the first complaint had been dismissed the second complaint can be entertained only in exceptional circumstances and thereafter the exceptional circumstances pointed out in Pramatha Nath (supra) were reiterated.

26. Therefore, this Court holds that the ratio in Pramatha Nath (supra) is still holding the field. The same principle has been reiterated once again by this Court in Hiralal and others vs. State of U.P. & others - AIR 2009 SC 2380. In paragraph 14 of the judgment this Court expressly quoted the ratio in Mahesh Chand (supra) discussed hereabove.

27. Following the aforesaid principles which are more or less settled and are holding the field since 1962 and have been repeatedly followed by this Court, we are of the view that the second complaint in this case was on almost identical facts which was raised in the first complaint and which was dismissed on merits. So the second complaint is not maintainable. This Court finds that the core of both the complaints is the same. Nothing has been disclosed in the second complaint which is substantially new and not disclosed in first complaint. No case is made out that even after the exercise of due diligence the facts alleged in the second complaint were not within the application of the first complainant. In fact such a case could not be made out since the facts in both the complaints are almost identical. Therefore, the second complaint is not covered within exceptional circumstances explained in Pramatha Nath (supra). In that view of the matter the second complaint in the facts of this case, cannot be entertained.

28. Unfortunately, the High Court fell into an error in not appreciating the legal position in its correct perspective while allowing the revision petition of the respondent. The order passed by the High Court in revision jurisdiction cannot be sustained and is quashed. This appeal succeeds.

29. There shall be no order as to costs.

P. VIJAYAN Versus STATE OF KERALA & ANR.

Criminal Procedure Code, 1973
  Section 227 - Penal Code, 1860, Section 302/34 - Discharge - Killing of CPI(ML) Naxalite leader Varghese in 1970 - For the first time in 1998, allegations of fake encounter and accusations against senior police officers by news-paper reports - Several writ petitions filed for transfer of investigation to CBI - Counter affidavit by Constable, A1 confessing shooting of Naxalite Varghese on the instruction of the then DSP (A2) in presence of appellant (A3) - On the basis thereof High Court ordering CBI to register an FIR - FIR registered and charge-sheet filed - Appellant's petition for discharge dismissed by Trial Court and order passed for framing charge for offence under Section 302/34 - Criminal revision petition filed, also dismissed - Justification. Held, Trial Court after evaluating the materials placed by prosecution and considering the probability of the case satisfied ietself about existence of sufficient grounds against the appellant and framed charge. It was not to consider at this stage if trial would end in conviction or acquittal. Thus High Court rightly affirmed Trial Court's order.

Criminal Procedure Code, 1973
Section 227 - Discharge - Suspicion - If out of two possible views one of them gives rise to mere suspicion and not grave suspicion, the court will be empowered to discharge the accused. Suspicion alone cannot form basis for framing charge.

Section 227 - Scope and ambit - Words 'not sufficient ground for proceeding against the accused' -Implication. Held Judge has to apply his judicial mind to the facts of the case to determine whether a case for trial has been made out. Evidence and probabilities need not be weighed as that is to be done after the trial starts. Court at the stage of discharge is not to see whether trial will end in conviction or acquittal. Case law discussed.

Evidence Act, 1872
Section 30 - Criminal Procedure Code, 1973, Section 227 - Grounds for discharge - Extra judicial confession - Inadmissibilty - Counter affidavit by Constable, A1, confessing shooting of Naxalite Varghese on the instruction of the then DSP (A2) in presence of appellant (A3) - Whether can be considered to reject application of discharge in view of the fact that A1 is dead. Held probative value, admissibility, reliability etc. are matters for evaluation after the trial.


Supreme Court of India

CRIMINAL APPEAL NO. 192 of 2010

Judge(s): P. SATHASIVAM,H.L. DATTU

Date of Judgment: Wednesday, January 27, 2010

P. VIJAYAN Versus STATE OF KERALA & ANR.


JUDGMENT



P. Sathasivam, J.

1) Leave granted.

2) This appeal is directed against the judgment and order of the High Court of Kerala at Ernakulam dated 04.07.2007 passed in Criminal Revision Petition No. 2455 of 2007, in and by which, the learned single Judge, after finding no ground to interfere with the order passed by the Trial Judge dismissing discharge petition filed by the appellant herein, refused to interfere in his revision.

3) According to the appellant, he is a retired IPS officer aged about 85 years. He enjoyed a considerable reputation as an IPS officer and had retired as the Director General of Police, Kerala. In the course of his tenure as a senior police officer, he controlled the Naxalite militancy which was rampant in Kerala in the 1970s. In the 1970s, Naxalites under the banner of CPI(ML), a militant organization, had taken up the cause of the poor through armed appraisal and violence. The said organization committed various brutal murders and dacoities including attacking police stations and murdering innocent policemen. The State Government which was in power at the relevant time took serious note of the said atrocities committed by the cadres of CPI (ML) and took a decision to put an end to the said atrocities.

4) It is his further case that Naxalite Varghese was a prominent leader of the CPI (ML) in Kerala during 1970s. He was an accused in cases relating to murder of landlords as well as attack on policemen. Since, he was wanted in many grave criminal offences, he was hiding. A special team consisting members of the Kerala Police as well as CRPF was formed to nab Naxalite Varghese. On 18.02.1970, the police received a tip off that he was present in the hut of one Shivaraman Nair and based on the said information, the special team rushed to the spot and broke open the door of the said hut and arrested Naxalite Varghese. However, while he was being taken to the Mananthavadi police station in a police jeep, he tried to escape and attacked the policemen resulting in clash between the police party and Naxalite Varghese. During the said clash, in order to prevent Naxalite Varghese from escaping, the police had to fire and in the shoot out he was killed. The capture of Naxalite Varghese was highlighted as one of the achievements of the Kerala Police at that time and the police personnel involved in the said operation were given out of turn promotions and increments in appreciation of being part of the team. The appellant had also received various medals while in service for his role in tackling the naxalite militancy in Kerala.

5) It was further pointed out that from 1970 till 1998, there was no allegation that the said encounter was a fake encounter. Only in the year 1998, reports appeared in various newspapers in Kerala that the killing of Varghese in the year 1970 was in a fake encounter and that senior police officers are involved in the said fake encounter. Pursuant to the said news reports, several writ petitions were filed by various individuals and organizations before the High Court of Kerala with a prayer that the investigation may be transferred to Central Bureau of Investigation (CBI). In the said writ petition, Constable Ramachandran Nair filed a counter affidavit dated 11.01.1999 in which he made a confession that he had shot Naxalite Varghese on the instruction of the then Deputy Superintendent of Police (DSP), Lakshmana. He also stated that the appellant was present when the incident occurred. By order dated 27.01.1999, learned single Judge of the High Court of Kerala passed an order directing the CBI to register an FIR on the facts disclosed in the counter affidavit filed by Constable Ramachandran Nair. Accordingly, the CBI registered an FIR on 03.03.1999 in which Constable Ramachandran Nair was named as accused No. 1, Mr. Lakshmana was named as accused No. 2 and Mr. P. Vijayan, the appellant herein, was named as accused No. 3 for an offence under Section 302 IPC read with Section 34 IPC. After investigation, the CBI filed a charge-sheet before the Special Judge (CBI), Ernakulam on 11.12.2002 wherein all the above mentioned persons were named as A1 to A3 respectively for an offence under Sections 302 and 34 IPC.

6) By pointing out various reasons, his meritorious service and nothing whispered for a period of twenty years, the appellant filed a petition on 17.05.2007 under Section 227 of the Code of Criminal Procedure (in short "CrPC") for discharge. The learned Trial Judge by order dated 08.06.2007, dismissed the said petition and passed an order for framing charge for offence under Sections 302 and 34 IPC. Aggrieved by the aforesaid order, the appellant filed a Criminal Revision Petition No. 2455 of 2007 before the High Court of Kerala. By an impugned order dated 04.07.2007, learned single Judge of the High Court dismissed the said Criminal Revision Petition. Questioning the said order, the appellant filed the above appeal by way of Special Leave Petition.

7) We have heard Mr. Raghenth Basant, learned counsel for the appellant and Mr. H.P. Raval, learned Additional Solicitor General for CBI-second respondent herein.

8) The questions that arose for consideration in this appeal are (i) whether the appellant established sufficient ground for discharge under Section 227 of the CrPC, and (ii) whether the Trial Judge as well as the High Court committed any error in rejecting the claim of the appellant.

9) Before considering the merits of the claim of both the parties, it is useful to refer Section 227 of the Code of Criminal Procedure, 1973, which reads as under:-

"227. Discharge.--If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

10) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused"

clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.

11) The scope of Section 227 of the Code was considered by this Court in the case of State of Bihar vs. Ramesh Singh (1977) 4 SCC 39, wherein this Court observed as follows:-

"... ... Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. .... "

This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of the Trial Judge in order to frame a charge against the accused.

12) In a subsequent decision i.e. in Union of India vs. Prafulla Kumar Samal, (1979) 3 SCC 4, this Court after adverting to the conditions enumerated in Section 227 of the Code and other decisions of this Court, enunciated the following principles:-

"(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

13) The scope and ambit of Section 227 was again considered in Niranjan Singh K.S. Punjabi vs. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76, in para 6, this Court held that:

"Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In the State of Bihar v. Ramesh Singh this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion-evidence which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In Union of India v. Prafulla Kumar Samal this Court after considering the scope of Section 227 observed that the words `no sufficient ground for proceeding against the accused' clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence."

14) In a recent decision, in the case of Soma Chakravarty vs. State through CBI, (2007) 5 SCC 403, this Court has held that the settled legal position is that if on the basis of material on record the Court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial. Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the Court must come to a prima facie finding that there exist some materials therefor. Suspicion alone, without anything more, cannot form the basis therefor or held to be sufficient for framing charge.

15) We shall now apply the principles enunciated above to the present case in order to find out whether or not the Courts below were justified in dismissing the discharge petition filed under Section 227 of the Code.

16) In the earlier part of our judgment, we have adverted to the assertion of the appellant that from 1970 till 1998, there was no allegation that the encounter was a fake encounter. In the year 1998, reports appeared in various newspapers in Kerala that the killing of Varghese in the year 1970 was in a fake encounter and that senior police officers are involved in the said fake encounter. Pursuant to the said news reports, several writ petitions were filed by various individuals and organizations before the High Court of Kerala with a prayer that the investigation may be transferred to Central Bureau of Investigation (CBI). In the said writ petition, Constable Ramachandran Nair filed a counter affidavit dated 11.01.1999 in which he made a confession that he had shot Naxalite Varghese on the instruction of the then Deputy Superintendent of Police (DSP), Lakshmana. In the same counter affidavit, he also stated that the appellant was present when the incident occurred. Based on the assertion in the counter affidavit of Ramachandran Nair dated 11.01.1999 by order dated 27.01.1999 learned single Judge of the High Court of Kerala passed an order entrusting an investigation to the CBI. As said earlier, accordingly, CBI registered an FIR on 03.03.1999 implicating Constable Ramachandran Nair, Lakshmana and the appellant-Vijayan as accused Nos. 1, 2 and 3 respectively for an offence under Section 302 read with Section 34 IPC.

17) The materials relied on by the CBI against the appellant are as follows:-

a) Confessional note dictated by Constable Ramachandran Nair to Shri M.K. Jayadevan which was handed over to one Mr. Vasu.

b) The 161 statement of CW 6, Mr. Vasu, an erstwhile Naxalite in which he stated that in the year 1977, Constable Ramachandran Nair confessed to him that he had shot dead Naxalite Varghese.

c) The 161 statement of CW 21 Constable Mohd. Hanifa in which he has stated that he was present along with Constable Ramachandran Nair while he shot dead Naxalite Varghese.

d) The 161 statement of CW 31, Mr. K. Velayudhan in which he stated that Constable Ramachandran Nair contacted him and stated that he had shot dead Naxalite Varghese.

e) The 161 statement of CW 32, Mr. M.K. Jayadevan who stated that Constable Ramachandran Nair had dictated his confessional statement to him and he delivered the same to Mr. Vasu.

f) The counter affidavit dated 11.01.1999 filed by Constable Ramachandran Nair before the High Court of Kerala in O.P. No. 21142/1998.

18) Learned counsel for the appellant at the foremost submitted that even if the alleged confession of Constable Ramachandran Nair is found to be correct, in view of the fact that the said Ramchandran Nair is no more and died long ago, in the light of Section 30 of the Indian Evidence Act, 1872 and in the absence of joint trial, the same cannot be used against the appellant. It is not in dispute that Constable Ramachandran Nair is not alive and there is no question of joint trial by the prosecution against the other two accused along with the said Ramchandran Nair. Section 30 of the Evidence Act, 1872 reads as:

"30. Consideration of proved confession affecting person making it and other jointly under trial for same offence. --When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

[Explanation.--"Offence", as used in this section, includes the abetment of, or attempt to commit the offence]"

It was pointed out that the confession of Constable Ramachandran Nair is inadmissible since this confession is made by an accused which cannot be used against a co- accused except for corroboration that too in a case where both accused are being tried jointly for the same offence. In the present case, the accused-Constable Ramachandran Nair is dead and, therefore, the trial against him has abated, hence there is no question of joint trial of Constable Ramachandran Nair and the appellant. He further pointed out that in view of the same the said extra judicial confession is inadmissible by virtue of Section 30. He relied on a three-Judge Bench decision of this Court in Mohd. Khalid vs. State of West Bengal, (2002) 7 SCC 334.

19) In Hardeep Singh Sohal & others vs. State of Punjab, (2004) 11 SCC 612, this Court again held that confession cannot be admitted in evidence against the co- accused under Section 30 of the Indian Evidence Act, 1872, since, the accused who made the confession was not tried along with the other accused.

20) Insofar as the admissibility or acceptability of the extra judicial confession in the form of counter affidavit made by the first accused before the High Court in the earlier proceedings are all matters to be considered at the time of trial. Their probative value, admissibility, reliability etc are matters for evaluation after trial. As rightly pointed out by Mr. H.P. Raval, learned Additional Solicitor General, apart from the confession, the statement of Vasu-CW-6, Md. Hanifa-CW-21, Mr. K. Velayudhan- CW-31 and Mr. M.K. Jayadevan-CW-32 are very well available and cannot be ignored lightly. We are satisfied that all the above materials require sufficient scrutiny at the hands of the Trial Judge.

21) As discussed earlier, Section 227 in the new Code confers special power on the Judge to discharge an accused at the threshold if upon consideration of the records and documents, he find that "there is not sufficient ground" for proceeding against the accused. In other words, his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there is sufficient ground for proceeding against the accused. If the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not, he will discharge the accused. This provision was introduced in the Code to avoid wastage of public time which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure.

22) In the case on hand, though, the learned Trial Judge has not assigned detailed reasons for dismissing the discharge petition filed under Section 227, it is clear from his order that after consideration of the relevant materials charge had been framed for offence under Section 302 read with Section 34 IPC and because of the same, he dismissed the discharge petition. After evaluating the materials produced by the prosecution and after considering the probability of the case, the Judge being satisfied by the existence of sufficient grounds against the appellant and another accused framed a charge. Whether the materials at the hands of the prosecution are sufficient or not are matters for trial. At this stage, it cannot be claimed that there is no sufficient ground for proceeding against the appellant and discharge is the only remedy. Further, whether the trial will end in conviction or acquittal is also immaterial. All these relevant aspects have been carefully considered by the High Court and it rightly affirmed the order passed by the Trial Judge dismissing the discharge petition filed by A3-appellant herein. We fully agree with the said conclusion.

23) It is made clear that we have not expressed anything on the merits of the claim made by both the parties and the conclusion of the High Court as well as this Court are confined only for disposal of the discharge petition filed by the appellant under Section 227 of the Code. It is for the prosecution to establish its charge and the Trial Judge is at liberty to analyze and to arrive at an appropriate conclusion, one way or the other, in accordance with law.

24) We direct the Trial Judge to dispose of the case of the CBI expeditiously, uninfluenced by any of the observations made above. Considering the age of the appellant, he is permitted to file appropriate petition for dispensing his personal appearance and it is for the Trial Court to pass an order taking into consideration of all relevant aspects. With the above direction, the criminal appeal is dismissed.

SRI JEYARAM EDUCATIONAL TRUST & ORS. Versus A.G.SYED MOHIDEEN & ORS.

Civil Procedure Code, 1908
Section 92 - Interpretation of the word 'or' - Notification dated 8.3.1960 under Section 92(1) investing all courts of Subordinate Judges in the State of Madras with jurisdiction to try suits relating to Trusts created for public purposes of a charitable and religious nature - Whether jurisdiction of District Courts to try suits under section 92 ceased after the notification - Whether word 'or' substitutive and not alternative - From the clear and unambiguous language of Section 92 it is clear that suit can be filed in the district court or in the sub-ordinate court. Thus meaning of 'or' is 'alternative'. Even otherwise legislative intent in regard to suits relating to public trusts was not to follow the rule in section 15 that every suit shall be instituted in the competent court of the lowest grade. It intended that the suits should be tried by the District Court and in case of heavy work load State Government should empower any other court also to entertain such suits. Therefore, the word 'or' is used in the ordinary and normal sense denoting an alternative.

Section 92 - Jurisdiction to entertain suits thereunder - Provisions of sections 15 to 20 of the Code or the provisions of section 12 of the Civil Courts Act - Whether applicable to such suits. Held no. Section 92 is a self contained provision.

Supreme Court of India

CIVIL APPEAL NO. 852 of 2010

Judge(s): R V RAVEENDRAN, K.S.RADHAKRISHNAN

Date of Judgment: Friday, January 22, 2010

SRI JEYARAM EDUCATIONAL TRUST & ORS. Versus A.G.SYED MOHIDEEN & ORS.


JUDGMENT

R.V.RAVEENDRAN, J.

Leave granted. Heard learned counsel for the appellants and respondents. We have also heard the learned counsel for the State of Tamil Nadu and Registrar General of the Madras High Court to whom notices had been issued in regard to the interpretation of section 92 of the Code of Civil Procedure (`Code' for short), with reference to the State Government Notification No. GOM No.727 dated 8.3.1960.

2. The respondents instituted a suit (OS No. 13 of 2006) on the file of the Principal District Judge, Cuddalore against the appellants under Section 92 of Code, seeking a direction to the second appellant to repay all the amounts spent by him after 20.6.2005 contrary to the terms of the supplementary deed of Trust, and also to convene the Trust meeting for approval of the income and expenditure and other consequential reliefs.

3. Appellants 2 to 4 herein filed a memo before the District Court stating that having regard to the decision of the Madras High Court in P. S. Subramanian v. K. L. Lakshmanan - 2007 (5) Mad. L.J. 921, the court did not have jurisdiction to entertain any suit under section 92 of the Code and therefore the suit may be transferred to the file of the Principal Subordinate Judge, Cuddalore. The learned District Judge rejected the said memo by order dated 1.8.2007 holding that he had jurisdiction to entertain the suit, as the value of the suit was Rs.10 lakhs. The revision filed by the appellants, challenging the said order of the District Court, was dismissed by the Madras High Court by the impugned order dated 25.4.2008. The said judgment is challenged in this appeal by special leave. The only question that arises for consideration in this appeal is whether a District Court in the State of Tamil Nadu, does not have jurisdiction to try a suit under section 92 of the Code.

4. Section 92 relates to public charities. It enables a suit being filed in the case of any alleged breach of any express or constructive Trust created for public purposes of a charitable or religious nature, `in the Principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the Trust is situate'.

4.1) Section 2(4) of the Code extracted below, while defining the term `district', in effect defines the terms `district court' :

"2(4). `district' means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a "District Court"), and includes the local limits of the ordinary original civil jurisdiction of a High Court."

4.2) Section 9 of the Code provides that the courts shall (subject to the provisions of the Code) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Sections 15 to 19 of the Code deal with place of suing. Section 15 requires every suit to be instituted in the court of the lowest grade competent to try it.

4.3) Section 6 of the Code deals with pecuniary jurisdiction and provides as follows :

"6. Pecuniary jurisdiction : Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction."

4.4) Section 10 of the Tamil Nadu Civil Courts Act, 1873 (for short `Civil Courts Act') empowers the state government to fix, and from time to time vary, the local limits of the jurisdiction of any District Court or Sub-ordinate Judge's court under that Act. Section 12 of the Civil Courts Act (as amended by Amendment Act No.1 of 2004), deals with the jurisdiction of the District Judge and the Subordinate Judge is extracted below:

"12. The jurisdiction of a District Judge extends, subject to the rules contained in the Code of Civil Procedure, to all original suits and proceedings of a civil nature, of which the amount or value of the subject matter exceeds five lakh rupees. The jurisdiction of a Sub-ordinate Judge extends, subject to the rules contained in the Code of Civil Procedure, to all like original suits and proceedings, of which the amount or value of the subject matter exceeds one lakh rupees but does not exceed five lakh rupees."

4.5) By a notification dated 8.3.1960 issued in exercise of power under section 92(1) of the Code, in supersession of the Judicial Department Notification No.719 dated 17.10.1910, the Governor of Madras invested all courts of Subordinate Judges in the State of Madras with jurisdiction under the Code in respect of suits relating to Trusts created for public purposes of a charitable and religious nature.

5. The appellants submit that on a true interpretation of section 92 of the Code, the District Court as the Principal Civil Court of original jurisdiction in a district had jurisdiction to try suits relating to public Trusts till 8.3.1960, having regard to the provisions of section 92 of the Code; and that once the State Government issues a notification in exercise of power under section 92 empowering courts of the Sub- ordinate Judges to entertain suits under section 92, the District Court ceased to have jurisdiction to try suits under the said section. In support of their contention, they strongly relied upon the decision of a learned Single Judge in the case of P.S. Subramanian (supra) wherein it was held that the word "or" occurring between the words "may institute a suit in the Principal Civil Court of original jurisdiction" and "in any other court empowered in that behalf by the State Government" in section 92 of the Code, should have to be read as substitutive and not as disjunctive or alternative.

6. It is now well settled that a provision of a statute should have to be read as it is, in a natural manner, plain and straight, without adding, substituting or omitting any words. While doing so, the words used in the provision should be assigned and ascribed their natural, ordinary or popular meaning. Only when such plain and straight reading, or ascribing the natural and normal meaning to the words on such reading, leads to ambiguity, vagueness, uncertainty, or absurdity which were not obviously intended by the Legislature or the Lawmaker, a court should open its interpretation tool kit containing the settled rules of construction and interpretation, to arrive at the true meaning of the provision. While using the tools of interpretation, the court should remember that it is not the author of the Statute who is empowered to amend, substitute or delete, so as to change the structure and contents. A court as an interpreter cannot alter or amend the law. It can only interpret the provision, to make it meaningful and workable so as to achieve the legislative object, when there is vagueness, ambiguity or absurdity. The purpose of interpretation is not to make a provision what the Judge thinks it should be, but to make it what the legislature intended it to be.

7. Section 92 provides that a suit under that section can be instituted "in the Principal Civil Court of original jurisdiction or in any other court empowered in that behalf by the State Government". When it is read in a normal manner, it means that the suits under section 92 should be filed in the district court or in the sub-ordinate court. When the language is clear and unambiguous and when there is no need to apply the tools of interpretation, there is no need to interpret the word `or', nor any need to read it as a substitutive word, instead of its plain and simple meaning denoting an `alternative'.

8. Assuming that there was any need for applying the principles of interpretation, let us next consider whether the word `or' was used in section 92 of the Code in a substitutive sense. It is clear from section 92 of the Code that the legislature did not want to go by the general rule contained in section 15 of the Code that every suit shall be instituted in the court of the lowest grade competent to try it, in regard to suits relating to public Trusts. The intention of the law makers was that such suits should be tried by the District Court. At the same time, the law makers contemplated that if there was heavy work load on the District Court, the State Government should be enabled to empower any other court (within the local limits of whose jurisdiction, the whole or any part of the subject matter is situate), also to entertain such suits. Therefore, the word "or" is used in the ordinary and normal sense, that is to denote an alternative, giving a choice. The provisions of section 92 do not give room for interpreting the word "or" as a substitutive, so as to lead to an interpretation that when the Government notified any other court, such notified court alone will have jurisdiction and not the District Court. If the intention was to substitute the Court empowered by the State Government in place of the Principal Civil Court of Original jurisdiction, instead of the words `may institute a suit in the Principal Civil Court of original jurisdiction or in any other court empowered in that behalf by the State Government', the following words would have been used in the section :

`may institute a suit in the principal Civil Court of original jurisdiction, or when any other court is empowered in that behalf by the State Government, then in such court empowered by the state government,'

`may institute a suit in the court notified by the state government.'

9. The provisions of section 12 of the Civil Courts Act specifying the pecuniary limits of District Courts and Sub-ordinate Courts, is subject to the provisions of the Code of Civil Procedure. In view of the express provisions of section 92 specifying the courts which will have jurisdiction to entertain suits under that section, neither the provisions of sections 15 to 20 of the Code nor the provisions of section 12 of the Civil Courts Act will apply to such suits. Section 92 is a self contained provision, and conferment of jurisdiction in regard to suits under that section does not depend upon the value of the subject matter of the suit. Therefore, insofar as the suits under section 92 are concerned, the District Courts and Sub- ordinate Courts will have concurrent jurisdiction without reference to any pecuniary limits. We find that the learned District Judge had held that he had jurisdiction because the value of the subject matter was Rs.10 lakhs, apparently keeping in view, section 12 of the Civil Courts Act. We make it clear that the pecuniary limits mentioned in section 12 of the Civil Courts Act, do not apply to suits under section 92 of the Code. In fact, if section 12 of the Civil Courts Act is applied to decide the jurisdiction of courts with reference to suits under section 92 of the Code, it will then lead to the following anomalous position: The District Court will have jurisdiction if the value of the subject matter exceeds Rs.5 lakhs. The Sub-ordinate Court will have jurisdiction where the value of the subject matter exceeds Rs.1 lakh but does not exceed to Rs.5 lakhs. That would mean that a suit under section 92 of the Code, where the subject matter does not exceeds Rs.1 lakh, cannot be filed in any court as section 92 confers jurisdiction only on District Court and Sub-ordinate Courts. This obviously was not intended. Be that as it may.

10. We do not therefore approve the decision of the learned Single Judge of the Madras High Court in PS Subramanian which ignores the earlier decisions of that court and decisions of other High Courts which have consistently taken the view that where jurisdiction is also conferred on any other court by the state government by a notification (under section 92 of the Code or under any similar provision), then that court and the District Court will have concurrent jurisdiction. We may in this behalf refer to the decisions in Annamalai vs. Slaiyappa - AIR 1935 Mad. 983, Dakor Temple Committee vs. Shankerlal - AIR 1944 Bom. 300, R. Rama Subbarayalu Reddiar vs. Rengammal - AIR 1962 Madras 450, and Pazhukkamattom Devaswom vs. Lakshmi Kutty Amma - 1980 Kerala LT 645.

11. In view of the above, the appeal is dismissed. The learned District Judge will proceed to decide the suit expeditiously.

UNION OF INDIA & ANR. Versus KARTICK CHANDRA MONDAL & ANR.

SERVICE & LABOUR LAWS
  Absorption - Casual workers - Recruitment not through Employment Exchange - Services terminated after two years in 1983 - Office Memorandum dated 07.05.1985, issued by way of relaxation of the condition of recruitment of casual workers - Admittedly on the date of issue, respondents not in employment - Whether respondents can claim advantage of the memorandum - Nothing to show that it was intended to apply retrospectively - It clearly mentioned that it was applicable to those who were in service on the date of its issue. Held, court cannot read anything into a statutory provision which is plain and unambiguous. Office Memorandum being prospective in nature was inapplicable to respondents. 
  Absorption - Internal Communications - Tribunal directing consideration of respondents for absorption against vacancies - Yet no orders passed by appellants - Contempt filed - Disposed of - Writ filed, disposed of with liberty to approach Tribunal - Tribunal directed absorption - Writ by appellants, dismissed - Appellant's contention that in view of a total ban on fresh appointments, no casual labour was being engaged - However notes of Assistant Legal Adviser and Director General in favour of respondents - Whether notes rightly relied upon by High Court to direct absorption. Held, no. Such notes are internal communications processing a matter. They were not publicized and were not official communication by competent authority. Note was written by the Deputy Director, Headquarters for Director General, on respondent no. 1's representation, to Ministry of Defence requesting it to consider his case for regularisation. Thus, Ministry of Defence and not the Director General was competent authority to pass an order for absorption. Further, note of the Legal Adviser culminated in the note of the Deputy Director clearly showed that no official order was passed by the competent authority. Hence direction for absorption on the basis thereof was unjustified. 
Absorption - Peons employed on casual basis - Recruitment not through Employment Exchange - Services terminated after two years in 1983 - Office Memorandum dated 07.05.1985, issued by way of relaxation of the condition of recruitment of casual workers, not applicable to respondents - Yet Tribunal on observing that 10 similarly placed employees were regularised directed consideration of respondents for re-engagement against vacancy - Whether respondents could have been directed to be so absorbed. Held, no. The fact that similarly placed persons were absorbed, erroneously could not have been a basis for perpetuating further illegality. Further in view of the fact that respondents worked with the appellants for only two years and there was a continuing ban on fresh recruitment , appeals are directed to be allowed.
 

Supreme Court of India

CIVIL APPEAL NO. 2090 of 2007

Judge(s): J.M. Panchal,Dr. Mukundakam Sharma

Date of Judgment: Friday, January 15, 2010

UNION OF INDIA & ANR. Versus KARTICK CHANDRA MONDAL & ANR.


JUDGMENT

Dr. Mukundakam Sharma, J.

1. By filing the present appeal, the appellants have challenged the legality and validity of the order dated 17.08.2005 passed by the Calcutta High Court whereby the Division Bench of the Calcutta High Court upheld the direction given by the Central Administrative Tribunal [for short `CAT'] to absorb the respondents in any suitable post commensurate with their qualifications.

2. The issue that is, therefore, canvassed before this Court by the appellants is whether such direction to absorb the respondents could have been issued by the CAT and the Calcutta High Court, particularly, in view of the fact that the respondents were engaged as Peons on casual basis without having been recruited through the proper procedure and having not been sponsored by the Employment Exchange and having worked with the appellant no. 2 only for two years, i.e., from 1981 to 1983.

3. The respondents herein, Shri K.C. Mondal and Shri S.K. Chakraborty, were engaged to work as casual labours in the office of the Ordnance Factory Board, Kolkata without going through the regular process of recruitment of their names being sponsored by the Employment Exchange, which was the extant policy at the relevant point of time. After their engagement as casual labours, they worked for two years with appellant no. 2, i.e., till 1983 and they were disengaged from service in the month of April, 1983 on the ground that their names were not sponsored by the Employment Exchange.

4. The respondents thereupon filed an Original Application before the CAT, registered as O.A. No. 285 of 1990 seeking a direction to the appellant no. 1 for their re-engagement and also for regularisation of their service w.e.f. 1983 or 1985. In support of the said claim, the respondents relied upon the Government of India notification issued by the Ministry of Personnel and Training, Administrative Reforms and Public Grievances and Pension [Department of Pensions and Training] dated 07.05.1985 issued under Office Memorandum No. 49014/18/84-Estt.[G] on the subject of regularisation of the services of the casual workers in Group `D' posts by way of relaxing the condition of recruitment of casual workers through Employment Exchanges only.

5. The counsel for the respondents had, before the Tribunal, urged that the office memorandum dated 07.05.1985 cannot be said to apply only to those who were in service as casual workers at that time but it was a general policy governing the regularisation of the service of causal workers who were recruited otherwise than through the Employment Exchange. It was submitted that, therefore, the benefit of the office memorandum would belong to the respondents also.

6. After hearing the parties, the Tribunal held that the contention of the learned counsel for the respondents with regard to the applicability of the said office memorandum to the respondents could not be accepted. While coming to the aforesaid conclusion, the Tribunal relied upon the language of the said Office Memorandum, the relevant part of which is extracted below: -

"Though these persons may have been continuing as casual workers for a number of years, they are not eligible for regular appointment and their services may be terminated any time. Having regard to the fact that casual workers belong to the worker section of the society and termination of their services will cause undue hardship to them, it has been decided, as a one time measure, in consultation with the DGE&T, that casual workers recruited before the issue of these instructions may be considered for regular appointment to Group `D' posts, in terms of the general instructions even if they are recruited otherwise than through the employment exchange, provided they are eligible for regular appointment in all other respects."

7. The Tribunal, however, granted the prayer of the respondents on the ground that 10 other similarly placed casual workers of the Ordnance Factory Board were regularised w.e.f. 01.01.1987. It was held by the Tribunal that the aforesaid 10 employees were also casual workers and all of them were similarly situated as the respondents inasmuch as they also were not recruited through the Employment Exchange. Subsequently, the Tribunal held that the respondents could not claim regularisation of their service w.e.f. 1983 or 1985, but keeping in view the fact that they had served the Ordnance Factory Board from 1981 to 1983 with technical breaks, their cases deserved to be considered favourably for re-engagement as casual labours. In light of the aforesaid findings, the Tribunal issued a direction to the appellants to re-engage the respondents as casual labours if there was work/vacancy in preference to freshers and those who rendered lesser length of service as casual labours.

8. The respondents, thereafter, making an allegation that despite the said order passed by the CAT the appellants did not pass any order in favour of the respondents filed a Contempt Application before the Tribunal which was disposed of by the Tribunal stating that since no time limit was stipulated in the order of the Tribunal, therefore, the appellants could not be held to have committed any contempt of Court. Since, even thereafter, no order was passed by the appellants to re-engage the respondents in terms of the order of the Tribunal, a Writ Petition was filed by the respondents before the High Court which was again disposed of by the High Court with a liberty to the respondents to approach the Tribunal in terms of which the respondents filed a fresh petition before the Tribunal which was registered as O.A. No. 903 of 2000. The said O.A. was heard and disposed of by the impugned judgment and order dated 11.03.2004 passed by the Tribunal with a direction to the appellants to absorb the respondents in any suitable post commensurate with their qualifications. The appellants being aggrieved by the aforesaid judgment and order filed a Writ Petition in the Calcutta High Court which was registered as WPCT No. 517 of 2004 for setting aside and quashing the aforesaid order passed by the Tribunal. The Calcutta High Court heard the parties in the said Writ Petition and by its judgment and order dated 17.08.2005 dismissed the said Writ Petition holding that the directions of the Tribunal are justified and that there is no valid ground for interfering with the aforesaid directions given by the CAT. Being aggrieved by the said judgment and order, the present appeal has been filed by the appellants on which we have heard the learned counsel appearing for the parties.

9. Several contentions were raised by the counsel appearing for the appellants before us to challenge the legality and validity of the orders passed by the Calcutta High Court as also by the CAT. It was submitted that so far as the directions issued by the CAT in O.A. No. 285 of 1990 are concerned, the only direction issued in the said order was to re-engage the respondents as casual labours if there was work/vacancy in preference to freshers and those who rendered lesser length of service as casual labours. It was pointed out that the respondents could not be appointed as casual labours in terms of the aforesaid direction as there was a total ban on fresh appointments and, therefore, there was no occasion of giving any fresh appointment to any person and that no fresh engagement was made of any casual labour as against any work/vacancy. So far as the notes of Assistant Legal Adviser and Director General are concerned, it was submitted that no reliance could have been placed on the same by the High Court as they were internal communications and that they having not been publicized, the same could not have been treated as official communication made by the competent authority. It was submitted that the same were only official notes in the course of processing of the files of the respondents and that the same could not have been treated by the High Court as orders issued and publicized by the competent authority and, therefore, the disposal of the Writ Petition on the said notes was invalid and unjustified. It was also submitted that neither the CAT nor the High Court has any power to direct absorption of the respondents when they had worked only for two years and on the date when the O.A. No. 285 of 1990 was filed before the CAT they were not even working as casual workers. The further submission of the counsel appearing for the appellant was that the office memorandum which was issued in 1985 could not have been relied upon or made the basis for issuing orders in favour of the respondents, particularly, in view of the fact that on the date when the aforesaid office memorandum was issued the respondents had already been disengaged from service and were not working with the appellant no. 2.

10.The aforesaid submissions of the counsel appearing for the appellants were refuted by the counsel appearing for the respondent contending, inter alia, that since the note written by the Director General to which reference has been made by the High Court as also the aforesaid communications between the authorities were in favour of the respondents both the Tribunal and the High Court were justified in relying on the same for issuing necessary directions to the appellants. It was also submitted by him as has been held by the High Court that there was a clear discrimination, for on the one hand ten persons who were similarly situated as the respondents were absorbed by the appellants whereas the respondents were denied similar benefits without any reasonable explanation for such hostile discrimination.

11.In light of the aforesaid submissions of the counsel appearing for the parties we have considered the entire records. So far as the Office Memorandum dated 07.05.1985 is concerned, the same was issued by way of relaxation of the condition of recruitment of casual workers. But the fact remains that the respondents worked with the appellants only for two years, i.e., from 1981 to 1983 and admittedly on the date when the aforesaid office memorandum was issued they were not working with the appellant no. 2. There is nothing in the contents or in the language of the said office memorandum which would indicate that there was an intention to give a retrospective effect to the contents of the said notification. Instead, the language used in the aforesaid notification clearly shows that the same was intended to be prospective in nature and not retrospective. Even otherwise, it is a well-settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. The language employed in a statute is determinative factor of the legislative intent. If the language of the enactment is clear and unambiguous, it would not be proper for the courts to add any words thereto and evolve some legislative intent, not found in the statute. Reference in this regard may be made to the recent decision of this Court in Ansal Properties and Industries Limited v. State of Haryana [(2009) 3 SCC 553].

12.As has been noted earlier, the said office memorandum stated that the same would apply only to those persons who might have been continuing as casual workers for a number of years and who were not eligible for regular appointment and whose services might be terminated at any time.

Therefore, it envisaged and could be made applicable to only those persons who were in service on the date when the aforesaid office memorandum was issued. Unless and until there is a clear intention expressed in the notification that it would also apply retrospectively, the same cannot be given a retrospective effect and would always operate prospectively.

13.The next issue that we are required to consider pertains to internal communications which are relied upon by the respondents and which were also referred to by the Tribunal as well as by the High Court. Ex facie, the aforesaid communications were exchanged between the officers at the level of board hierarchy only. An order would be deemed to be a Government order as and when it is issued and publicized. Internal communications while processing a matter cannot be said to be orders issued by the competent authority unless they are issued in accordance with law. In this regard, reliance may be placed on the decision of this Court in State of Bihar and Others v. Kripalu Shankar and Others [(1987) 3 SCC 34] wherein this Court observed, in paragraphs 16 and 17, as follows: -

"16. Viewed in this light, can it be said that what is contained in a notes file can ever be made the basis of an action either in contempt or in defamation. The notings in a notes file do not have behind them the sanction of law as an effective order. It is only an expression of a feeling by the concerned officer on the subject under review. To examine whether contempt is committed or not, what has to be looked into is the ultimate order. A mere expression of a view in notes file cannot be the sole basis for action in contempt. Business of a State is not done by a single officer. It involves a complicated process. In a democratic set up, it is conducted through the agency of a large number of officers. That being so, the noting by one officer, will not afford a valid ground to initiate action in contempt. We have thus no hesitation to hold that the expression of opinion in notes file at different levels by concerned officers will not constitute criminal contempt. It would not, in our view, constitute civil contempt either for the same reason as above since mere expression of a view or suggestion will not bring it within the vice of sub- section (c) of Section 2 of the Contempt of Courts Act, 1971, which defines civil contempt. Expression of a view is only a part of the thinking process preceding Government action. "emphasis supplied"

17. In the case of Bachhittar Singh v. State of Punjab a Constitution Bench of this Court had to consider the effect of an order passed by a Minister on a file, which order was not communicated. This Court, relying upon Article 166(1) of the Constitution, held that the order of the Revenue Minister, PEPSU could not amount to an order by the State Government unless it was expressed in the name of Rajpramukh as required by the said article and was then communicated to the party concerned. This is how this Court dealt with the effect of the noting by a Minister on the file:

"The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones.""

Besides, the said communications were exchanged after disposal of the Original Application by the Tribunal. The note on which reliance has been placed by the High Court specifically, was written by the Deputy Director, Headquarters for Director General, Ordnance Factories dated 20.11.1997 and it refers to the orders passed by the Tribunal as also the order passed in the contempt petition. From a bare perusal of the note it transpires that it was prepared on a representation of Shri K.C. Mondal, respondent no. 1 herein, and was submitted to the Ministry of Defence requesting to consider his case for recruitment/absorption/regularisation of services of casual workers in Group `D' post. That itself indicates that the proper and competent authority to pass an order for recruitment, absorption and regularisation was the Ministry of Defence and not the Director General, Ordnance Factory. In the said note itself it was clearly mentioned that an early action in the matter was requested, which means that the said order was not the official communication which was issued from the Ordnance Factory Board and that the Director General, Ordnance Factory was himself not the competent authority to pass an order regarding absorption, recruitment and regularisation of service of the respondents. In the said note it was further stated that the Ministry of Defence may pass necessary orders to allow regularisation of the services of Shri K.C. Mondal and Shri S.K. Chakraborty in terms of the aforesaid office memorandum dated 07.05.1985 or to accord permission to recruit Shri K.C. Mondal and Shri S.K. Chakraborty for the post of Peon without reference to the Employment Exchange in relaxation of ban. The note of the Legal Adviser culminated in the aforesaid note of the Deputy Director which clearly indicates that no official order was passed by the competent authority and therefore issuing directions to the appellants to absorb the respondents on the basis of the same was unjustified and uncalled for.

14.The next issue that we are now required to consider is whether the aforesaid respondents could have been directed to be so absorbed. Similar issues regarding absorption or regularisation of casual labours are raised time and again in various branches and offices of the Government and this Court has had the opportunity to deal with such issues in the past in several cases. We attempt to refer to two decisions of this Court which are considered to be the latest decisions and landmark decisions and which are binding on us. We may refer to the constitutional bench decision of this Court in Secretary, State of Karnataka and Others v. Umadevi (3) and Others reported in (2006) 4 SCC 1. The relevant portion of the said judgment, viz., paragraphs 43 & 45, are as follows:-

"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. ..............."

"45. While directing that appointments, temporary or casual, be regularised or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargain--not at arm's length-- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible.

.................................................... ........................ ..................................................... ..................... ................................ It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution."

15.Subsequent to the aforesaid decision, the issue again arose for consideration before the 3-Judges Bench of this Court in the Official Liquidator v. Dayanand and Others reported in (2008) 10 SCC 1 wherein this Court in paragraphs 68 and 116 observed as follows: -

"68. The abovenoted judgments and orders encouraged the political set-up and bureaucracy to violate the soul of Articles 14 and 16 as also the provisions contained in the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 with impunity and the spoils system which prevailed in the United States of America in the sixteenth and seventeenth centuries got a firm foothold in this country. Thousands of persons were employed/engaged throughout the length and breadth of the country by backdoor methods. Those who could pull strings in the power corridors at the higher and lower levels managed to get the cake of public employment by trampling over the rights of other eligible and more meritorious persons registered with the employment exchanges. A huge illegal employment market developed in different parts of the country and rampant corruption afflicted the whole system."

"116. In our opinion, any direction by the Court for absorption of all company - paid staff would be detrimental to public interest in more than one ways. Firstly, it will compel the Government to abandon the policy decision of reducing the direct recruitment to various services. Secondly, this will be virtual abrogation of the statutory rules which envisage appointment to different cadres by direct recruitment."

16.In our considered opinion, the ratio of both the aforesaid decisions are clearly applicable to the facts and circumstances of the present case. In our considered opinion, there is misplaced sympathy shown in the case of the respondents who have worked with the appellants only for two years, i.e., from 1981 to 1983. Even assuming that the similarly placed persons were ordered to be absorbed, the same if done erroneously cannot become the foundation for perpetuating further illegality. If an appointment is made illegally or irregularly, the same cannot be the basis of further appointment. An erroneous decision cannot be permitted to perpetuate further error to the detriment of the general welfare of the public or a considerable section. This has been the consistent approach of this Court. However, we intend to refer to a latest decision of this Court on this point in the case of State of Bihar v. Upendra Narayan Singh & Others [(2009) 5 SCC 69], the relevant portion of which is extracted hereinbelow: -

"67. By now it is settled that the guarantee of equality before law enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing wrong order"

[A reference in this regard may also be made to the earlier decisions of this Court. See also: 1) Faridabad CT. Scan Centre v. D.G. Health Services and Others [(1997) 7 SCC 752]; 2) South Eastern Coalfields Ltd. v. State of M.P. and Others [(2003) 8 SCC 648] and 3) Maharaj Krishan Bhatt and Another v. State of J&K and Others [(2008) 9 SCC 24]]. If at this distant date an order is passed for reappointment or absorption of the respondents, the same would be in violation of the settled law of the land reiterated in the decisions relied upon in this judgment.

17.Counsels for the parties also fairly agree that the respondents have not been working with the respondents at any point of time after 1983. There was also a continuing ban on recruitment due to which there was no recruitment or appointment in the Group `D' posts of the Ordnance Factory Board.

18.In view of the aforesaid discussions and conclusions arrived at, we are of the considered opinion, that this appeal should be allowed, which we hereby do. We set aside the orders passed by the Tribunal as also by the High Court. There will be no order as to costs.

Wednesday, January 20, 2010

SHYAM GOPAL BINDAL AND OTHERS Versus LAND ACQUISITION OFFICER AND ANOTHER

Civil Procedure Code, 1908 — Order 41 Rule 27 — application to adduce additional records — appellants claimed to be owners in possession of the suit land — Urban Improvement Trust (UTI) disclosed that the land in question had been acquired and the appellants with other co-owners were asked to receive the compensation — predecessors of the appellants filed suit for seeking an injunction and declaration but not produced any oral and documentary evidence to prove the disputed property as their personal property, thus, suit of the plaintiff dismissed — appellants filed appeal and an application under Order 41 Rule 27 CPC to adduce additional evidence which was rejected by the Appellate Court and the High Court — appeal — the original plaintiff passed away during the pendency of the civil suit, thus, held that the opportunity to produce documents on record available to the legal representatives of the deceased plaintiff — orders of the Appellate Court and of the High Court set aside — appeal and application for additional evidence allowed — matter remanded back to the trial Court for fresh decision.


Supreme Court of India
Civil Appeal No.192 of 2010 (Arising out of Special Leave Petition (C) No. 10805 of 2008)
 Bengai Mandal @ Begai Mandal Appellant versus State of Bihar Respondent
 Date of Decision: 11-1-2010.
 Judge(s): Hon'ble Mr. Justice TARUN CHATTERJEE, J. & SURINDER SINGH NIJJAR, JJ.



JUDGMENT



Surinder Singh Nijjar, J.-Leave granted.



2.   This appeal has been filed against the judgment of learned Single Judge of the Rajasthan High Court, Jaipur Bench, dated 03.01.2008 rendered in S.B. Civil Second Appeal No.305 of 2006 whereby the appeal as well as the application under Order 41 Rule 27 CPC filed by the plaintiff/appellants have been dismissed. The appellants claimed to be owners in possession of the suit land. They claim ownership rights on the basis of the order passed by the Additional District Collector, Ajmer, Rajasthan dated 11.01.1971 passed in Case No.159 of 1970, wherein predecessors- in-interest of the appellants, namely, Meghraj was declared to be owner of the suit land. An application had been filed by Meghraj and his brother on 15.12.1959 in the Court of Additional District Collector, Ajmer, Rajasthan seeking a declaration that the suit land was their personal property. Upon due investigation the declaration was issued that "the lands of the Khasra Nos. 427,440,441,2202,2241 and 2242 admeasuring 6 bighas 6 biswas 10 biswansi are declared personal properties of the applicants under Section 6 of the Rajasthan Biswedari & Abolition of Jamindari Act." 4. Another order was passed in Revenue Suit No.176 of 1989 by the Sub Divisional Officer, Ajmer, Rajasthan on 20.06.1994 whereby Urban Improvement Trust, Ajmer (hereinafter referred to as "UIT") was directed "not carry out any construction without applying & initiating legal proceedings, and the Urban Improvement Trust, Ajmer has no restriction in carrying out the proceedings of acquisition in accordance with practice." This direction was issued on the basis of the averments made in the application that the appellants are the Khatedar cultivators of the land in dispute. It was apprehended that UIT wants to construct the road through the aforesaid land without legally acquiring the same. The aforesaid judgment of the Sub Divisional Officer was not challenged by the UIT. On 31.10.1994, the appellants submitted an application seeking demarcation of the land in question which was duly ordered by the Sub-Divisional Officer. Thereafter the appellants received a letter dated 23.11.1994 from the UIT disclosing that the land in question had been acquired vide Award dated 25.01.1994. The appellants and the other co-owners were asked to receive the compensation from the office of UIT. On receipt of the aforesaid letter the appellants sent notice challenging the legality of the award. The predecessors of the appellants Meghraj then filed a civil suit in the Court of Additional Civil Judge (A.B.) & Judicial Magistrate First Class, No.2, Ajmer seeking an injunction and declaration. In the suit the entire acquisition proceedings had been challenged on the ground that due notice was not sent to the owner of the land. It was pleaded that the land acquisition procedure as prescribed under Section 4, Section 5(a) and Section 11(a) of the Land Acquisition Act had not been followed. After completion of the pleadings the trial court framed the following issues: "1. If the disputed property has been declared as personal property of the plaintiff? 2. If this court has jurisdiction to hear this suit.



3.  If the defendant has a right to dispossess the plaintiff from the disputed property?



4.  Relief." Issue Nos. 1 and 2 have been decided by the trial court with the following observations:



"The onus of proving the above issues was on the plaintiff. But the plaintiff has not produced any type of oral and documentary evidence in support of the above issues. Hence, under these circumstances, both the above issues are decided against plaintiff and in favour of defendant."



5. With these observations the suit of the plaintiff was dismissed by judgment and order dated 26.10.1998.



6. Aggrieved, the appellants filed Civil Appeal No.134 of 1998 in the Court of Additional District Judge No.1, Ajmer, Rajashtan. Along with this appeal an application under Order 41 Rule 27 CPC was also filed to adduce additional evidence. The appellants wanted to place on record the orders dated 11.01.1971 and 20.06.1994. According to the appellants the same were not produced by the original plaintiff who passed
away during the pendency of the suit. The Appellate Court dismissed the appeal as also the application for leading additional evidence on the ground that it was essential for the plaintiff to prove the pleadings mentioned in the plaint from his own evidence. It was noticed that the Trial Court had fixed the case for evidence on behalf of the plaintiff on 21.03.1998 and three opportunities were afforded for adducing evidence . Apart from the aforesaid no other reason is given by the Appellate Court for rejecting the application for additional evidence.



7.   Aggrieved by the orders of the lower courts the appellants moved the High Court by way of second appeal which has also been dismissed by the impugned judgment dated 03.01.2008. The High Court dismissed the appeal with the observation that as the land had already been acquired and the award passed as early as on 15.1.1994, under the provisions of the Land Acquisition Act, 1894, no useful purpose would be served by remanding the case to the trial court for affording an opportunity to the plaintiff-appellants to lead evidence when the civil court has no jurisdiction to set aside the award. In view of the dismissal of the appeal the application under Order 41 Rule 27 was also dismissed.



8.   We have heard the learned counsel for the parties. It appears that the documents which were sought to be produced by the appellants formed the very basis of the claim made by the appellants in the civil suit. Their consideration by the court was necessary for a just decision of the case. The original plaintiff passed away during the pendency of the civil suit. The documents were thereafter sought to be brought on record at the earliest opportunity available to the legal representatives of the deceased plaintiff. Therefore, it could not be said that the appellants had not given any reason as to why the documents had not been produced in the trial court. It appears that the dismissal of the suit by the trial court for non-production of evidence by the plaintiff was mechanically affirmed by the Appellate Court. It further appears that none of the issues have been decided by any of the courts below, on merits. All decisions have proceeded on the basis that the plaintiff/appellants have failed to produce evidence in support of their claim. The application was not examined keeping in view the principles laid down in Order 41 Rule 27 of the Civil Procedure Code. The documents sought to be produced are Judicial Orders declaring the ownership rights of the appellants, that have a crucial bearing on the merits of the claim put forward by the appellants. It was pleaded by the appellants that original plaintiff having died during the pendency of the civil suit the documents could not be brought on record as they were not aware of the orders. A prayer was duly made before the Appellate Court which was repeated before the High Court for remanding the matter with an opportunity to adduce the additional evidence. In the facts and circumstances of this case, we are of the opinion that the Appellate Court as also the High Court erred in law in not accepting the application for additional evidence and not remanding the matter back to the trial court.



9.   In view of the above, the appeal is allowed. The judgments of the High Court in S.B. Civil Second Appeal No.305 of 2006 dated 03.01.2008, Additional District Judge No.1, Ajmer in Civil Appeal No.134 of 1998 dated 10.02.2006 and Additional Civil Judge(A.B.) & Judicial Magistrate First Class, No.2, Ajmer in Civil Suit No.34/95(29/95) dated 26.10.1998 are set aside.



10.   The application for additional evidence is allowed. The matter is remanded back to the trial court for a fresh decision on merits. Plaintiffs as well as the defendants shall be permitted to place on record any additional documents.