Bank, DRT, SARFAESI Act

DRT, SARFAESI Act, NPA, Debt Recovery Tribunal India. DRT, Debt Recovery.

We provide the Legal Advice & Legal Services in India for Debt Recovery Tribunal, Credit Debt, Debt Management, Debt Relief, Debt Advice, Debt Solution, Debt Settlement, Bad Debt, Debt Consolidation, Debt Recovery, Debt Collection, India Debt, Debt Equity, Debt Ratio, Debt Market, Debt fund, OTS: One Time Settlement & NPA: Non-Performing Assets.

DRT: Debt Recovery Tribunal, DRAT: Debt Recovery Appellate Tribunal

The Debt Recovery Tribunals have been established by the Government of India under an Act of Parliament (Act 51 of 1993) for expeditious adjudication and recovery of debts due to banks and financial institutions. The Debt Recovery Tribunal is also the appellate authority for appeals filed against the proceedings initiated by secured creditors under the Securatizaton and Reconstruction of Financial Assets and Enforcement of Security Interest Act.

DRT Act & Rules (Debt Recovery Act)

The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002

The Recovery of Debts Due to Banks and Financial Institutions Act, 1993

The Security Interest (Enforcement) Rules, 2002

The Debts Recovery Tribunal (Procedure) Rules, 1993

The Debts Recovery Appellate Tribunal (Procedure) Rules, 1994

The Debts Recovery Tribunal (Financial and Administrative Power) Rules, 1997

The Debts Recovery Appellate Tribunal (Financial and Administrative Power) Rules, 1997

The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (Removal of Difficulties) Order, 2004

The Securitisation Companies and Reconstruction Companies (Reserve Bank) Guidelines and Directions, 2003

Forms of Application for Registration of Securitisation/Reconstruction Companies

Revised Guidelines for Compromise Settlement of Chronic Non-Performing Assets (NPAs) of Public Sector Banks

Relevant Provision of Enactments Amended/Refered

The Securities and Exchange Board of India Act, 1992, (15 of 1992)

The SickIndustrial Companies (Special Provision) Act (SICA), 1985

There are five DRAT: Debt Recovery Appellate Tribunals in India, situated at Allahabad, Delhi, Mumbai, Kolkata and Chennai. DRATs are appellate tribunals For DRT: Debt Recovery Tribunals. In India there are more than 33 DRTs: Debt Recovery Tribunals, situated at different State/City.

DRT Tribunal, Bankruptcy Court, DRT Court

DRT is Tribunal not a Court. The Debt Recovery Tribunals have been established by the Government of India under an Act of Parliament (Act 51 of 1993) for expeditious adjudication and recovery of debts due to banks and financial institutions. In India there is nothing like DRT court & Bankruptcy Court

DRATs in India

Debt Recovery Appellate Tribunal Allahabad (DRAT Allahabad)

Debt Recovery Appellate Tribunal Chennai (DRAT Chennai)

Debt Recovery Appellate Tribunal Delhi (DRAT Delhi)

Debt Recovery Appellate Tribunal Kolkata (DRAT Kolkata)

Debt Recovery Appellate Tribunal Mumbai (DRAT Mumbai)

DRTs in India

Debt Recovery Tribunal Ahmedabad (DRT 1 Ahmedabad)

Debt Recovery Tribunal Chandigarh (DRT 1 Chandigarh)

Debt Recovery Tribunal Chennai (DRT 1 Chennai)

Debt Recovery Tribunal Delhi (DRT 1 Delhi)

Debt Recovery Tribunal Kolkata (DRT 1 Kolkata)

Debt Recovery Tribunal Mumbai (DRT 1 Mumbai)

Debt Recovery Tribunal Ahmedabad (DRT 2 Ahmedabad)

Debt Recovery Tribunal Chandigarh (DRT 2 Chandigarh)

Debt Recovery Tribunal Chennai (DRT 2 Chennai)

Debt Recovery Tribunal Delhi (DRT 2 Delhi)

Debt Recovery Tribunal Kolkata (DRT 2 Kolkata)

Debt Recovery Tribunal Mumbai (DRT 2 Mumbai)

Debt Recovery Tribunal Chennai (DRT 3 Chennai)

Debt Recovery Tribunal Delhi (DRT 3 Delhi)

Debt Recovery Tribunal Kolkata (DRT 3 Kolkata)

Debt Recovery Tribunal Mumbai (DRT 3 Mumbai)

Debt Recovery Tribunal Allahabad (DRT Allahabad)

Debt Recovery Tribunal Aurangabad (DRT Aurangabad)

Debt Recovery Tribunal Bangalore (DRT Bangalore)

Debt Recovery Tribunal Coimbatore (DRT Coimbatore)

Debt Recovery Tribunal Cuttack (DRT Cuttack)

Debt Recovery Tribunal Earnakulam (DRT Earnakulam)

Debt Recovery Tribunal Guwahati (DRT Guwahati)

Debt Recovery Tribunal Hyderabad (DRT Hyderabad)

Debt Recovery Tribunal Jabalpur (DRT Jabalpur)

Debt Recovery Tribunal Jaipur (DRT Jaipur)

Debt Recovery Tribunal Lucknow (DRT Lucknow)

Debt Recovery Tribunal Madurai (DRT Madurai)

Debt Recovery Tribunal Nagpur (DRT Nagpur)

Debt Recovery Tribunal (DRT Patna)

Debt Recovery Tribunal (DRT Pune)

Debt Recovery Tribunal (DRT Ranchi)

Debt Recovery Tribunal (DRT Vishakapatnam)

Following Appeals can be filed in DRAT:

Against the final orders passed by the Presiding Officers of various DRTs.

Against Interim orders/directions given by the Presiding Officers of various DRTs.

Against orders on MA/IA/Appeal against RO’s orders, etc passed by the Presiding Officers of various DRTs.

Against orders on appeals filed under The Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002, passed by the Presiding Officers of various DRTs.

Applications under subsection (6) of section 17 of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002.

Important Abbreviations:

NPA: Non-Performing Assets

OTS: One Time Settlement

BIFR: Board for Industrial and Financial Reconstruction

AAIFR: Appellate Authority for Industrial and Financial Reconstruction

RDBFI: The Recovery of Debts Due to Banks and Financial Institutions Act, 1993

SARFAESI: The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002

OD: Over Due

Debt Meaning & Definition: Debt is that which is owed; usually referencing assets owed, but the term can also cover moral obligations and other interactions not requiring money. In the case of assets, debt is a means of using future purchasing power in the present before a summation has been earned. Some companies and corporations use debt as a part of their overall corporate finance strategy. A debt is created when a creditor agrees to lend a sum of assets to a debtor. In modern society, debt is usually granted with expected repayment; in most cases, plus interest. Historically, debt was responsible for the creation of indentured servants. An amount owed to a person or organization for funds borrowed. Debt can be represented by a loan note, bond, mortgage or other form stating repayment terms and, if applicable, interest requirements. These different forms all imply intent to pay back an amount owed by a specific date, which is set forth in the repayment terms.

Debt Definition: Debt means any liability (inclusive of interest) which is claimed as due from any person by a bank or a financial institution or by a consortium of banks or financial institution during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or assigned, or whether payable under a decree or order of any civil Court or any arbitration award or otherwise or under a mortgage and subsisting on, and legally recoverable on, the date of the application.

Debt word origin: The word comes from the French dette and ultimately Latin debere (to owe), from de habere (to have). The letter b in the word debt was reintroduced in the 17th century, possibly by Samuel Johnson in his Dictionary of 1755 several other words that had existed without a b had them reinserted at around that time.

Kinds of Debt: A company uses various kinds of debt to finance its operations. The various types of debt can generally be categorized into:

1 secured and unsecured debt,

2 private and public debt,

3 syndicated and bilateral debt.

NPA: Non Performing Asset means an asset or account of borrower, which has been classified by a bank or financial institution as sub-standard, doubtful or loss asset, in accordance with the directions or guidelines relating to asset classification issued by The Reserve Bank of India.

NPA – Non Performing Asset Definition: An asset becomes non-performing when it ceases to generate income for the bank on actual realization basis.

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Banking Ombudsman

Address and Area of Operation of Banking Ombudsman

Sl.
No.

Centre

Address of the Office of
Banking Ombudsman

Area of Operation

1.
Ahmedabad Shri Sunil T S Nair
C/o Reserve Bank of India
La Gajjar Chambers,
Ashram Road,
Ahmedabad-380 009

Tel.No.26582357/
26586718 / 2657 5807
Fax No.079-26583325

Click here to send email

Gujarat, Union Territories of Dadra and
Nagar Haveli, Daman and Diu
2.
Bangalore C/o Reserve Bank of India
10/3/8, Nrupathunga Road
Bangalore-560 001

Tel.No.22210771/22275629
Fax No.080-22244047

Click here to send email

Karnataka
3.
Bhopal Shri A.F. Naqvi
C/o Reserve Bank of India
Hoshangabad Road,
Post Box No.32,
Bhopal-462 011

Tel.No.2573772/2573776
Fax No.0755-2573779

Click here to send email

Madhya Pradesh and Chattisgarh
4.
Bhubaneswar Shri B. K. Mishra,
Banking Ombudsman for Odisha,
C/o Reserve Bank of India
Pt. Jawaharlal Nehru Marg
Bhubaneswar-751 001

Tel.No. 0674-2394844
Fax No. 0674-2393906

Click here to send email

Orissa
5.
Chandigarh C/o Reserve Bank of India
4th Floor, Sector 17, Central Vista
Chandigarh – 160 017

Tel.No.0172-272 1109/2721011/2784261
Fax No.0172-2721880

Click here to send email

Himachal Pradesh, Punjab and
Union Territory of Chandigarh and Panchkula,
Yamuna Nagar and Ambala Districts of Haryana.
6.
Chennai Shri U. Chiranjeevi
C/o Reserve Bank of India,
Fort Glacis,
Chennai 600 001

Tel No. (044) 2539 5964 / 25399170
/25399159/25399158
Fax No.044-25395488

Click here to send email

Tamil Nadu, Union Territories of Puducherry(except Mahe Region) and Andaman and Nicobar Islands
7.
Guwahati Shri Anand Prakash
C/o Reserve Bank of India
Station Road,
Pan Bazar
Guwahati-781 001

Tel.No.2542556/2540445
Fax No.0361-2540445

Click here to send email

Assam, Arunachal Pradesh, Manipur,
Meghalaya, Mizoram, Nagaland and Tripura
8.
Hyderabad Dr. N. Krishna Mohan
C/o Reserve Bank of India
6-1-56, Secretariat Road
Saifabad,
Hyderabad-500 004

Tel.No.23210013/23243970
Fax No.040-23210014

Click here to send email

Andhra Pradesh
9.
Jaipur Shri R Giridharan
C/o Reserve Bank of India,
4th floor
Rambagh Circle, Tonk Road
Jaipur-302 052
Tel.No.(0141)5107973/5101331
Fax No.0141-2562220Click here to send email
Rajasthan
10.
Kanpur Shri A K Naskar
C/o Reserve Bank of India
M.G. Road, Post Box No.82
Kanpur-208 001

Tel.No.(0512) 2306278/2306330
Fax No.0512-2305938

Click here to send email

Uttar Pradesh (excluding Districts of Ghaziabad and Gautam Budh Nagar)
and Uttaranchal
11.
Kolkata Dr. (Smt) S. Chattopadhyay
C/o Reserve Bank of India
15, Nethaji Subhas Road
Kolkata-700 001

Tel No.(O) : (033)2230-4982
Fax No.033-22305899

Click here to send email

West Bengal and Sikkim
12.
Mumbai Smt. Rose Mary Sebastian
C/o Reserve Bank of India
Garment House,
3rd Floor,
Dr. Annie Besant Road,
Worli, Mumbai-400 018

Tel.No.24924607/24960893/
2493 3358
Fax No.022-24960912

Click here to send email

Maharashtra and Goa
13.
New Delhi Shri R K Tandon
C/o Reserve Bank of India,
Sansad marg,
New Delhi – 110001

Tel No. (011)  23730632/23730633
/23766130/23766131
Fax No. 011- 23725218/23725219

Click here to send email

Delhi, Jammu & Kashmir, Haryana (except the districts of Ambala , Yamuna Nagar and Panchkula), and the districts of Ghaziabad and Gautam Budh Nagar of Uttar Pradesh
14.
Patna Shri Patric Barla
C/o Reserve Bank of India,
Patna-800 001

Tel.No.2322569/2323734
Fax No.0612-2320407

Click here to send email

Bihar and Jharkhand
15.
Thiruvananthapuram Shri A Madasamy
C/o Reserve Bank of India
Bakery Junction
Thiruvananthapuram-
695033

Tel.No.0471-2326852 /2332723/2323959
Fax No.0471-2321625

Click here to send email

Kerala and Union Territory of Lakshadweep and Union Territory of Puducherry (only Mahe Region).
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DRT Allahabad Advocate

Our Advocates and Lawyers mainly practice in Debt Recovery Laws in India. We are having clients that include Borrowers, Guarantors, Bank and third party. We are the Litigation lawyers for and against bank in India. We provide fast recovery solution for Banks and stay against arbitrary actions of banks. Some time banks used forceful recovery by recovery agents, our lawyers are best in arbitrary action of bank in Sarfaesi laws.

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DRT Jabalpur Advocate

Our Advocates and Lawyers mainly practice in Debt Recovery Laws in India. We are having clients that include Borrowers, Guarantors, Bank and third party. We are the Litigation lawyers for and against bank in India. We provide fast recovery solution for Banks and stay against arbitrary actions of banks. Some time banks used forceful recovery by recovery agents, our lawyers are best in arbitrary action of bank in Sarfaesi laws.

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State of M.P. and Others Vs. Sanjay Nagayach and Others

State of M.P. and Others Vs. Sanjay Nagayach and Others

[Civil Appeal No. 4691 of 2013 arising out of SLP (Civil) No. 6860 of 2012]

[Civil Appeal No. 4692 of 2013 arising out of SLP (Civil) No. 13125 of 2012]

K. S. RADHAKRISHNAN, J.

Leave granted.

1. We are, in this case, concerned with the legality of an order passed by the Joint Registrar of the Cooperative Societies, Sagar Division, Sagar, M.P., superseding the Board of Directors of District Cooperative Central Bank Ltd., Panna without previous consultation with the Reserve Bank of India, as provided under the second proviso to Section 53(1) of the Madhya Pradesh Cooperative Societies Act, 1960 [for short ‘the Act’].

2. The Board of Directors of the Bank challenged the above mentioned order on various grounds, including the ground of violation of the second proviso to Section 53(1) of the Act that is non-consultation with the Reserve Bank of India [RBI] before taking a decision to supersede the Board of Directors. The order was challenged by the Board of Directors by filing a writ petition before the High Court of Madhya Pradesh, Jabalpur Bench. Learned single Judge of the High Court disposed of the writ petition directing the parties to avail of the alternative remedy provided under Section 78 of the Act. But on appeal, the Division Bench of the High Court set aside the order of supersession dated 30.9.2011 on the ground of non- compliance of the second proviso to section 53(1) of the Act.

Aggrieved by the same, the State of M.P., through its Principal Secretary, Department of Co-operation, the Commissioner Cum Registrar, Co-operative Societies, Bhopal and the Joint Registrar, Co-operative Societies, Sagar, have come up with Civil Appeal No. ………of 2013 [arising out of SLP No. 6860 of 2012] and a private party filed Civil Appeal No. ……….. of 2013 [arising out of SLP No. 13125 of 2012] challenging the judgment of the High Court dated 13.2.2012, followed by lot of intervening applications.

3. As the question of laws involved in both the above mentioned appeals are common, we are disposing of both the appeals by a common judgment. Facts and Arguments

4. The Board of Directors of the Bank was elected to Office on 16.10.2007 and while in office they were served with a show-cause-notice dated 2.3.2009 issued by the Joint Registrar, Co-operative Societies under Section 53(2) of the Act containing 19 charges. Detailed replies were sent by the Board of Directors on 6.5.2009 and 16.5.2011 stating that most of the charges levelled against them were related to the period of the previous Committee and the rest were based exclusively on an Audit Report dated 25.9.2008. It was pointed out that the Board of Directors on receipt of the Audit report took necessary action and a communication dated 5.12.2008 was sent to the Branch Managers of Primary Societies to take immediate follow-up action on the basis of the Audit report. After filing the detailed reply, nothing was heard from the Joint Registrar but due to political pressure and extraneous reasons after two and half years of the show cause notice, an order of supersession was served on the Board, followed by the appointment of an Administrator in gross violation of the second proviso to Section 53(1) of the Act.

5. Dr. Abhishek M. Singhvi, learned senior advocate appearing for the State, submitted that the High Court was not justified in interfering with the order of supersession passed by the Joint Registrar, while an alternative remedy was available under Section 78 of the Act by way of an appeal before the Co-operative Tribunal. Learned senior counsel placed reliance on the judgments of this Court in Harbanslal Sahnia and Another v. Indian Oil Corpn. Ltd. and Others (2003) 2 SCC 107, United Bank of India v. Satyawati Tondon and Others (2010) 8 SCC 110 and Om Prakash Saini v. DCM Ltd. and Others (2010) 11 SCC 622. Learned senior counsel also submitted that the Division Bench of the High Court has not correctly appreciated the scope of the second proviso to Section 53(1) of the Act. Learned senior counsel also pointed out that the Joint Registrar has forwarded the show-cause notice dated 23.2.2009 along with other materials to RBI seeking its views on the proposed action of supersession and the RBI through its communications dated 17.4.2009, 3.6.2009 and 8.12.2009 had only directed the Joint Registrar to indicate RBI of the action taken against the Board of Directors. Consequently, the Joint Registrar was only required to inform the RBI of the action taken against the Board of Directors. Learned senior counsel also submitted that the charges levelled against the Board of Directors were of serious nature and the order of supersession was passed bona fide and in public interest and the Division Bench of the High Court was not justified in interfering with the order of supersession.

6. Shri V. K. Bali, learned senior counsel appearing for the appellants in Civil Appeal No. ……….. of 2013 [arising out of SLP No. 13125 of 2012], also submitted that the charges levelled against the Board of Directors were of serious nature and there was sufficient materials to establish those charges and the Joint Registrar has rightly passed the order of supersession and appointed the Collector, Panna as an Administrator of the Bank. Learned senior counsel also pointed out that the Joint Registrar had forwarded the show-cause-notice as well as the connected materials to RBI and RBI had failed to respond to the show-cause- notice within 30 days of the receipt of the same and, therefore, it would be presumed that RBI had agreed to the proposed action and the Joint Registrar had rightly passed the order of supersession. Shri Mahavir Singh, learned senior counsel appearing for the Interveners also submitted that the High Court has committed an error interfering with the order of supersession and, in any view, if any of the parties were aggrieved, they ought to have availed of the alternate remedy available under the Act.

7. Shri Vivek Tankha, learned senior counsel appearing for the 1st respondent, submitted that the High Court has correctly understood the scope of the second proviso to Section 53(1) of the Act and rightly came to the conclusion that before passing the order of supersession, there should be a meaningful consultation with the RBI, therefore, the consultee could apply its mind and form an independent opinion as to whether the Board be superseded or not. Learned senior counsel submitted that merely forwarding the show cause notice along with other relevant materials is not sufficient compliance of the second proviso to Section 53(1) of the Act, so held by the Madhya Pradesh High Court in several judgments.

Learned senior counsel submitted that the order of supersession was passed by the Joint Registrar after a period of two and half years of the issuance of the show-cause- notice and most of charges levelled against the Board of Directors were related to the period when the previous Committee was in office and even the charges based on the Audit Report dated 25.9.2008 were also rectified by the Board of Directors by addressing the primary societies. Learned senior counsel also submitted that the order was passed at the instance of respondents 2 and 3 herein on extraneous considerations and was actuated by mala fide and ulterior motive.

Learned counsel submitted that the Joint Registrar had acted under the political pressure and was not exercising his powers in accordance with the provisions of the Act and the order of supersession was passed to disqualify the members of the Board of Directors from contesting the ensuing election. Learned senior counsel prayed that the Board of Directors be put back in office and be allowed to continue for the period they were put out of office illegally.

8. We heard learned counsel on either side at great length. When the matter came up for hearing before us on 17.10.2012, we passed the following order, the operative portion of which reads as under: “We are informed that the period of the Managing Committee is already over and District Collector is acting as the Administrator of the Cooperative Bank vide this Court’s order dated 23.02.2012. However, the legality of the order has to be tested. Before that we feel it appropriate to place the entire material before the Reserve Bank of India (for short, ‘RBI’) (Respondent NO. 7) for its opinion as per Section 53 of the Act.

The RBI will take a final decision on that within a period of two months and forward the opinion to the Secretary General of this Court, who will place it before the Court.” RBI submitted its detailed report on 18.12.2012, in pursuance to the order passed by this Court. RBI, referring to the second proviso to Section 53(1) of the Act, took the view that the so-called consultation made by the Joint Registrar cannot be treated as previous consultation, as per law. RBI, after examining all the documents made available by the Joint Registrar including the show-cause-notice, reply filed by the Board of Directors opined as follows:

i) The JRCS has alleged that Panna DCCB has not deducted tax on the interest paid to the depositors. In terms of the CBDT circular No. 9/2002 dated 11-9-2002 tax is deductible at source from any payment of income by way of interest other than income by way of interest on securities. Clause (v) of sub-section (3) of section 194A exempts such income credited or paid by a co-operative society to a member thereof from requirement of TDS. Clause (viia) of sub-section (3) of section 194A exempts from the requirement of TDS such income credited or paid in respect of deposits (other than time deposits made on or after 1-7-1995) with a co-operative society engaged in carrying on the business of banking. It is not clear from observation of JRCS, Panna that the interest accrued and paid was time deposit or saving bank deposit account made after 01.07.1995.

ii) The amount collected as VAT was not remitted to the Government. VAT is not applicable to the banking transactions. Hence collection itself is not correct.

iii) In terms of Audit para 21 of Audit Report for the FY ended 2000- 01, Panna DCCB in the year June 1997, without the approval of PACS’ Committee had stored pesticides. These medicines expired on December 98 and August 99. Despite expiry, stock of medicines worth Rs.16.28 lakh was left over which could not be sold in the market. The amount should have been recovered from the employees of the bank. As per the reply furnished by the bank, the present Board of Directors had initiated the process of recovery of dues of which the major portion of outstanding dues has already been recovered. The bank is effecting recovery from its 39 employees through monthly deductions of Rs.500 to Rs1000.

iv) In terms of Audit para 32 of Audit Report for the FY ended 2000- 01, an outstanding amount of Rs23200/- to be recovered from cashier Shri D.L. Tiwari is still pending for recovery. It is seen from the records that the bank has initiated disciplinary proceedings against the erring employees besides filing a recovery suit with Civil Court, Powai.

v) In terms of Audit para 16 of Audit Report for the FY ended 2000- 01, Shri Jawaharlal Srivastav, Manager of Laxmipur PACs had committed fraud of Rs.20.93 lacs thereby misappropriated the bank’s funds. He has been removed from services and an amount of Rs.36,637/- has been recovered from his claims. Bank vide its letter dated 15.02.2002 has written to Kotwali Police Panna to register the case. No action has been initiated by the present Board in the matter. The Bank has already registered a case against Shri Jawaharlal Srivastav. However, it appears from the records and reply furnished by the bank that no effective steps were taken after 15.02.2002 to lodge FIR in the matter. Even the present Board of Directors apparently has not taken any effective steps after it took over during the end of 2007.

vi) In terms of Audit para 23 of Audit Report for the FY ended 2000- 01, reconciliation of entries in the books of accounts of DCCB Panna was pending and it has not been resolved. Non-reconciliation of books by DCCB Panna is an operational risk which has also been pointed out by NABARD in its inspection reports for the FY 2008-2009 and 2010-2011. Therefore, the compliance submitted by the bank does not appear to be satisfactory.

vii) In terms of Audit para 13 of Audit Report for the FY ended 2003- 04, fraud in respect of 37 Managers to the tune of Rs.43.34 lakh was mentioned and the cases are still pending. 27 Employees have been terminated from the services. Case against only one employee has been registered with police and the bank has not registered the cases against 27 employees. From the records made available to us, we do not observe any monitoring by JRCS, on the issue during the intervening period. It is evident that this matter was being discussed in the Board meetings of the present Board, some amount was already recovered, disciplinary action against the erring employees have been taken and the legal proceeding initiated against them is also pending.

viii) As mentioned in Audit Report for the FY ended 2006-07, rectification of audit objections is not satisfactory. No action was taken on most of the audit objections and compliance submitted by the management is mere eyewash. Compliance to Audit Report is an ongoing process which needs to be monitored on a continuous basis.

The table showing the allegations of the JRCS Panna, comments of Panna DCCB and the observation of RBI is enclosed herewith and marked as Exhibit – IX. RBI, therefore, took the view that the deficiencies pointed out in the show- cause-notice were general in nature and did not warrant the supersession of the Board of Directors. RBI, however, opined that it would be desirable that new election of the Board of Directors be conducted in accordance with the provisions of the Act and the Management of the Bank be handed over to the newly elected body by the present administrator. Legal Framework

9. The validity of the order of supersession has to be tested under the legal framework in which the Cooperative Bank and its controlling authorities have to function under the Act read with the provisions of the Reserve Bank of India Act, 1934 (for short ‘RBI Act’), the Banking Regulation Act, 1949 (for short ‘Regulation Act’), the Banking Law (Application to Cooperative Societies) Act, 1965 (23 of 1976), the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (for short ‘DICGC Act’), the National Bank for Agricultural and Rural Development Act, 1981 (for short ‘NABARD Act’) etc. Since the order impugned results in the supersession of a body elected to achieve social and economic democracy with emphasis on weaker sections of the society, as the preamble of the Act depicts, a close look at the powers of the functionaries instrumental in over-turning an elected body is of paramount importance.

10. Co-operative philosophy on society must rest on free universal association, democratically governed and conditioned by equity and personal liberty. First legislation in India relating to cooperative societies was the Co-operative Societies Act, 1904, established for the purpose of credit only, but to extend the privilege of credit societies to other societies also a legislation with wider scope and object, that is Cooperative Societies Act 1912, was passed which was applicable to the whole of British India, which was a Central Act. Later, after independence different States enacted separate Acts of which we are in this case concerned with the 1960 Act in force in the State of Madhya Pradesh.

11. We find, until the year 1965, the Cooperative Banks were not being regulated by the RBI but it was felt necessary to bring the cooperative societies carrying on the business of banking within the purview of the Regulation Act. Since, large number of cooperative societies were carrying on the banking business, and also to ensure the growth of cooperative banking on sound banking principles, the Parliament enacted the Act 23 of 1965, called the Banking Law (Application to Cooperative Societies) Act, 1965 and Part IV was introduced into the Regulation Act w.e.f. 1.3.1966. Section 55 of Part V provides for the application of the Regulation Act to Cooperative Banks. Any existing co- operative bank at the time of the commencement of the Act 23 of 1965 was required to apply grant of license within a period of three months from the date of the commencement of the Act and obtain a license from RBI under Section 22 of RBI Act. Every co-operative bank is also obliged to comply with the provisions of the Regulation Act and directions/guidelines issued by RBI from time to time.

12. We may, in this connection, refer to certain provisions of the DICGC Act which also confers certain powers to the RBI to supersede the committee of the management of the co-operative Bank in public interest. The Act has been enacted to provide for the establishment of a Corporation for the purpose of insurance deposits and guaranteed credit facilities for allied purposes. Section 3 of the Act has empowered the Central Government to establish the Deposit Insurance Corporation, a wholly owned subsidiary of RBI. Section 2(gg)(iii) of DICGC Act states that “eligible co-operative bank” means a co-operative bank, the law for the time being governing, which provides that:

“2(gg)(iii) If so required by the Reserve Bank of India in the public interest or for preventing the affairs of the bank being conducted in a manner detrimental to the interest of the depositors or for securing the proper management of the bank, an order shall be made for the supersession of the committee of management or other managing body (by whatever name called) of the bank and the appointment of an administrator therefor for such period or periods not exceeding five years in the aggregate as may from time to time be specified by the Reserve Bank.”

RBI never thought it necessary to invoke the above mentioned provision as against the first respondent. NABARD Act has been enacted to provide and regulate credit facilities and for other related and individual matters. Section 3 of the Act has empowered the Central Government to establish such a National Bank, i.e. NABARD. Section 35 of the Regulation Act empowers the RBI to conduct inspection of the affairs of a banking company. RBI has also got the power under Sub-section (b) of Section 35 of the Regulation Act to authorise NABARD to conduct inspection of the District Cooperative Bank.

13. Section 2(d) of the NABARD Act defines the term “Central Co-operative Bank”. NABARD in exercise of the powers conferred on it, is also authorised to conduct inspection on the affairs of District Co-operative Banks.

14. We will now examine the scope of Section 53 of the Act, especially the second proviso to Section 53(1) of the Act, in the light of the above discussion. Section 53 relevant to our purpose is given below: “53. Supersession of Board of Directors- (1) If in the opinion of the Registrar the Board of Directors of any society-

(a) is negligent in the performance of the duties imposed on it by or under this Act or byelaws of the society or by any lawful order passed by the Registrar or is unwilling to perform such duties; or

(b) commits acts which are prejudicial to the interests of the society or its members; or

(c) violates the provisions of this Act or the rules made there under or byelaws of the society or any order passed by the Registrar. The Registrar may, by order in writing remove the Board of Directors and appoint a person or persons to manage the affairs of the society for a specified period not exceeding two years in the first instance: Provided that if in opinion of the Registrar, the Board of Directors of any Primary Agriculture Credit Co-operative Society-

i) incurs losses for three consecutive years; or

ii) commits serious financial irregularities or fraud is identified; or

iii) there is perpetual lack of quorum in the meetings of the Board of Directors. The Registrar may, by order in writing remove the Board of Directors an appoint a person or persons to manage the affairs of the society for two months which may be extended by him for such period not exceeding six months for reasons to be recorded in writing: Provided further that in case of Co-operative Bank, the order of supersession shall not be passed without previous consultation with the Reserve Bank; Provided further that if no communication containing the views of the Reserve Bank of India on action proposed is received within thirty days of the receipt by that bank of the request soliciting consultation, it shall be presumed that the Reserve Bank of India agree with the proposed action and the Registrar shall be free to pass such order as he may deem fit. Provided also that if a non-official is appointed in the Board of Directors of a primary society, he shall be from amongst the members of that society, entitled for such representation and in case of central or Apex society, if a person is appointed in the Board of Directors of such society, he shall be a member of one of its affiliated societies entitled for such representation.

(2) No order under sub-section (1) shall be passed unless a list of allegations, documents and witnesses in support of charges levelled against it has been provided and the Board of Directors has been given a reasonable opportunity of showing cause against the proposed order and representation, if any, made by it, is considered. xxx xxx xxx xxx xxx xxx (7) Before taking action under sub-section (1) in respect of a financing bank or in respect of a society indebted to a financing bank, the Registrar shall consult, in the former case, the Madhya Pradesh State Co-operative Bank Limited and, in the latter case, the financing bank, counterved regarding such action. If the Madhya Pradesh State Co- operative Bank Limited or the financing bank, as the case may be, fails to communicate its views within thirty days of the receipt by such bank of the request soliciting consultation, it shall be presumed that the Madhya Pradesh State Co-operative Bank Limited or the financing bank, as the case may be, agreed with the proposed action.”

Section 53 (1) confers powers on the Registrar to pass an order to remove the Board of Directors and to appoint a person to manage the affairs of the society, subject to certain conditions, of which, we are primarily concerned with the applicability of the second proviso to Section 53(1), which specifically states that in the case of a Co-operative Bank, the order of supersession shall not be passed without previous consultation with the RBI. The third proviso to Section 53 states that if no communication containing the views of the RBI on the action proposed is received within thirty days of the receipt by that bank of the request soliciting consultation, it shall be presumed that the RBI agreed with the proposed action and the Registrar shall be free to pass such order, as he may deem fit.

Sub-section (2) to Section 53 of the Act specifically states that no order under Sub-section (1) (order of supersession) shall be passed unless a list of allegations, documents and witnesses in support of charges levelled against it has been provided and the Board of Directors has been given a reasonable opportunity of showing cause against the proposed order and representation, if any, made by it, is considered. The second proviso to Section 53 (1) refers to the expression “order of supersession”, means that the final order of supersession to be passed by the Joint Registrar after complying with sub-section (2) to Section 53. Second and third provisos, read together, would indicate that no order of supersession shall be passed without previous consultation with the RBI. Before passing an order of supersession, the show-cause-notice along with other relevant materials, including the reply received from the bank, has to be made available to the RBI for an effective consultation.

15. We have already quoted the second proviso to Section 53(1), the meaning of which is clear and unambiguous which, in our view, calls for no interpretation or explanation. In this respect, reference to the often quoted principle laid down by Tindal, C.J. in Sussex Peerage case (1844) 11 CIT F.85 is useful, which reads as follows: “If the words of the Statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in the natural and ordinary sense.” Reference may also be made to the judgments of this Court in Lalu Prasad Yadav and Another v. State of Bihar and Another (2009) 3 SCC 553 and Ansal Properties and Industries Limited v. State of Haryana and Another (2010) 5 SCC 1.

16. The mere serving a copy of the show-cause-notice on RBI with supporting documents is not what is contemplated under the second proviso to Section 53(1). For a meaningful and effective consultation, the copy of the reply filed by the Bank to the various charges and allegations levelled against them should also be made available to the RBI as well as the action proposed by the Joint Registrar, after examining the reply submitted by the Bank. On the other hand, RBI should be told of the action the Joint Registrar is intending to take. Only then, there will be an effective consultation and the views expressed by the RBI will be a relevant material for deciding whether the elected Board be superseded or not. In other words, the previous consultation is a condition precedent before forming an opinion by the Joint Registrar to supersede the Board of Directors or not.

17. This Court in Indian Administrative Services (SCS) Association, U.P. v. Union of India 1993 Supp (1) SCC 730, has laid down six propositions while examining the meaning of the expression ‘consultation’. We may add one more proposition that when the outcome of the proposed action is to oust a democratically elected body and the expression used is “shall not be passed without previous consultation”, it is to be construed as mandatory. Reference may also be made to the judgments of this Court in Reserve Bank of India v. Peerless Company (1987) 2 SCR 1, State of Jammu and Kashmir v. A.R. Zakki and Others 1992 Supp (1) SCC 548, Gauhati High Court and Another v. Kuladhar Phkan and Another (2002) 4 SCC 524, Andhra Bank v. Andhra Bank Officers and Another (2008) 7 SCC 203. Discussion

18. District Cooperative Bank, Panna (for short ‘Panna DCB”), a Bank registered under the Act, was issued a license to conduct the banking services in India by RBI on 3.6.2010 under Section 22 of the Regulation Act. Panna DCB is a Central Co-operative Bank as defined under Sub-section 2(d) of NABARD Act. NABARD had conducted an inspection of the Panna DCB under Section 35 of the Regulation Act, with reference to the financial position as on 31.3.2007, when the previous Board was in office and thirty six fraud cases at Primary Agricultural Credit Societies (PACS) involving Rs.37.05 lacs had been reported. Certain deficiencies in the bank’s functioning, like non-adherence to the provisions of the Income Tax Act, lack of internal checks and control systems and unsatisfactory compliance to their previous inspection report, had also found a place in their inspection report, the copy of which was forwarded to the RBI vide their communication dated 1.2.2008.

19. The Joint Registrar, Co-operative Societies, as already stated, issued a notice to Panna DCB to show cause as to why the Board of Directors be not superseded and an Administrator be appointed. The show-cause- notice was sent to the RBI, which RBI received on 4.3.2009. RBI vide its letter dated 17.4.2009 requested the Joint Registrar to inform the action being taken on the reply submitted by the Board of Directors of Panna DCB. RBI vide its letter dated 30.3.2009 forwarded the copy of the show-cause- notice to the Chief General Manager, NABARD for their comments. Since, NABARD had conducted inspection of Panna DCB under Section 35 of the Regulation Act, NABARD vide its letter dated 29.6.2009 informed the same to the RBI and also opined as follows: “….. We are of the view that the deficiencies mostly relating to systems and procedures are of general nature, which do not provide strong ground for supersession of the Board as far as the inspection by NABARD is concerned.”

20. RBI, again, vide its letter dated 3.6.2009 wrote to the Joint Registrar to inform RBI the outcome of the reply submitted by the Bank to the show-cause-notice. RBI, then sent a reminder on 22.7.2009 to the Joint Registrar, since no reply was received. RBI, it is seen has received a reply from the Joint Registrar on 10.8.2009. RBI, then sent a communication to the Joint Registrar vide its letter dated 8.5.2009 to know the action taken on the reply submitted by the Board of Directors. The Joint Registrar then sent a detailed reply dated 19.8.2009 to the RBI stating that in the case of a Co-operative Bank, order of supersession would not be issued without previous consultation with RBI, however, if no communication containing the views of RBI on the action was received within 30 days, it should be presumed that the RBI had agreed to the proposed action and the Registrar would be free to pass orders as might be deemed fit.

It was further stated that in the case of District Co-operative Bank, the powers under Section 53(2) of the Act are vested with the Regional Joint Registrar and notice issued by the Joint Registrar was not sent for the opinion of the State Government. Further, it was also pointed out that the Bank had submitted its reply on 8.5.2009 and internal decision would be taken as per the legal provisions and RBI would be informed accordingly. Yet, another letter dated 24.12.2009 was also received by the RBI, wherein it was stated that the hearing was going on and the RBI would be informed of the final decision. Later, without informing the RBI of the proposed action and also without forwarding the reply submitted by Panna DCB to the show-cause-notice to RBI, the order of supersession dated 30.9.2011 was passed by the Joint Registrar.

21. We find seven charges levelled against the Board of Directors were relating to the period of the previous Committee, for which the first respondent Board of Directors could not be held responsible. Further, even though the Board had taken charge in October 2007, the audit report was submitted before the Board only after nine months and that the Board of Directors took follow up action on the basis of the audit report dated 25.9.2008. The Joint Registrar, it seems, was found to be satisfied with the detailed replies dated 6.5.2009 and 16.5.2011submitted by the Board of Directors of the Bank, possibly, due to that reason, even though the show- cause-notice was issued on 22.3.2009, it took about two and half years to pass the order of supersession.

22. We are of the view that the order of supersession dated 30.9.2011 is not only in clear violation of the second proviso to Section 53(1) of the Act, but also the allegations raised in the show-cause-notice are deficiencies mostly relating to systems and procedures and are of general nature and not grave enough to overthrow a democratically elected Board of Directors. Both NABARD and RBI have expressed the view that the charges levelled against the Board of Directors do not provide strong ground to supersede the Board.

23. Learned senior counsel Shri Vivek Tankha submitted that since the Board of Directors was superseded illegally, they, be put back in office and allow to continue, for the period they were put out of office. We find force in that contention, especially in view of the views expressed by NABARD as well as RBI and the fact that the Joint Registrar himself had passed the order of supersession only after two and half years of the date of issuance of the show-cause-notice.

24. The legislative intention is clear from the following statutory provisions. The statute has fixed the term of an elected Board of Directors as five years from the date on which first meeting of Board of Directors is held. Once a Board of Directors is illegally superseded, suspended or removed, the legislature in its wisdom ordained that the Board should complete their full term of five years, because electorate has elected the Board for five years. The proviso to Section 49(7A)(i) reads as follows: “7A(i) The term of the Board of Directors shall be five years from the date on which first meeting of the Board of Directors is held: Provided that where a Board of Directors superseded, suspended or removed under the Act is reinstated as a result of any order of any Court or authority, the period during which the Board of Directors remained under supersession, suspension out of office, as the case may be, shall be excluded in computing the period of the term aforesaid.”

25. The Board of Directors, in the instant case, took charge on 16.10.2007, therefore, they could continue in office till 15.10.2012. The Board of Directors was, however, superseded illegally on 30.9.2011 and, by virtue of the judgment of the Division Bench of the High Court dated 13.2.2012, the Board should have been put back in office on 13.2.2012, but an Administrator was appointed. Going by the proviso referred to above, the period during which the Board of Directors remained under supersession be excluded in computing the period of five years. In the facts and circumstances of this case, we are of the considered opinion that the duly elected Board of Directors should get the benefit of that proviso, which is statutory in nature.

26. In such circumstances, we direct the Joint Registrar, Co-operative Societies, Sagar to put the Board of Directors back in office so as to complete the period during which they were out of office.

27. The High Court, in our view, has therefore rightly exercised its jurisdiction under Article 226 of the Constitution and the alternative remedy of appeal is not bar in exercising that jurisdiction, since the order passed by the Joint Registrar was arbitrary and in clear violation of the second proviso to Section 53(1) of the Act.

28. We are of the view that this situation has been created by the Joint Registrar and there is sufficient evidence to conclude that he was acting under extraneous influence and under dictation. A legally elected Board of Directors cannot be put out of the office in this manner by an illegal order. If the charges levelled against the Board of Directors, in the instant case, were serious, then the Joint Registrar would not have taken two and half years to pass the order of supersession. State of Madhya Pradesh did not show the grace to accept the judgment of the Division Bench of the High Court and has brought this litigation to this Court spending huge public money, a practice we strongly deprecate. Registrar/Joint Registrar and External Influence:

29. Statutory functionaries like Registrar/Joint Registrar of Co- operative Societies functioning under the respective Co-operative Act must be above suspicion and function independently without external pressure. When an authority invested with the power purports to act on its own but in substance the power is exercised by external guidance or pressure, it would amount to non-exercise of power, statutorily vested. Large number of cases are coming up before this Court and the High Courts in the country challenging the orders of supersession and many of them are being passed by the statutory functionaries due to external influence ignoring the fact that they are ousting a democratically elected Board, the consequence of which is also grave because the members of the Board of Directors would also stand disqualified in standing for the succeeding election as well.

30. The Registrar/Joint Registrar, while exercising powers of supersession has to form an opinion and that opinion must be based on some objective criteria, which has nexus with the final decision. A statutory authority shall not act with pre-conceived notion and shall not speak his masters’ voice, because the formation of opinion must be his own, not somebody else in power, to achieve some ulterior motive. There may be situations where the Registrar/Joint Registrar are expected to act in the best interest of the society and its members, but in such situations, they have to act bona fide and within the four corners of the Statute. In our view, the impugned order will not fall in that category. Judicial Precedents

31. Registrar/Joint Registrar is bound to follow the Judicial Precedents. Ratio decidendi has the force of law and is binding on all statutory authorities when they deal with similar issues. The Madhya Pradesh High Court in several judgments has explained the scope of the second proviso to Section 53(1) of the Act. Reference may be made to the judgments in Radheshyam Sharma v. Govt. of M.P. through C.K. Jaiswal and Ors. 1972 MPLJ 796, Board of Directors of Shri Ganesh Sahakari Vipnan (Marketing) Sanstha Maryadit and Another v. Deputy Registrar, Co-operative Societies, Khargone and Others1982 MPLJ 46 and Sitaram v. Registrar of Co-operative Societies and another 1986 MPLJ 567.

32. We fail to see why the Joint Registrar has overlooked those binding judicial precedents and the ratio decidendi. Judicial rulings and the principles are meant to be followed by the statutory authorities while deciding similar issues based on the legal principles settled by judicial rulings. Joint Registrar, while passing the impugned order, has overlooked those binding judicial precedents.

33 We fail to notice why the State Government, Department of Co- operative Societies has taken so much interest in this litigation. Joint Registrar in his letter dated 19.8.2009 to RBI stated that in the case of District Co-operative Bank, the powers under Section 53(2) of the Act are vested with Regional Joint Registrar and the notice issued by the Joint Registrar is not meant for the opinion of the State Government. Assuming, the State Government has powers under Section 49-C of the Act, no report has been forwarded by the Registrar to the State Government and no direction have been issued by the State Government with regard to the supersession of the Board. Sorry so note that the State Government has spent huge public money by litigating this matter even up to this Court, that too, without following the binding precedents of the Madhya Pradesh High Court on the scope of the second proviso to Section 53(1) of the Act.

34. In such circumstances of the case, we are inclined to dismiss both the appeals with costs directing re-instatement of the first respondent Board of Directors back in office forthwith and be allowed to continue for the period they were put out of office by the impugned order which has been quashed. We also direct the State of Madhya Pradesh to pay an amount of Rs.1,00,000/- to the Madhya Pradesh Legal Services Authority within a period of one month by way of costs and also impose a cost of Rs.10,000/- as against the Joint Registrar, Co-operative Societies, Sagar, the officer who passed the order, which will be deducted from his salary and be deposited in the Panna DCB within a period of two months from today. Ordered accordingly.

35. Further, we are inclined to give the following general directions in view of the mushrooming of cases in various Courts challenging orders of supersession of elected Committees:

1) Supersession of an elected managing Committee/Board is an exception and be resorted to only in exceptional circumstances and normally elected body be allowed to complete the term for which it is elected.

2) Elected Committee in office be not penalised for the short-comings or illegalities committed by the previous Committee, unless there is any deliberate inaction in rectifying the illegalities committed by the previous committees.

3) Elected Committee in Office be given sufficient time, say at least six months, to rectify the defects, if any, pointed out in the audit report with regard to incidents which originated when the previous committee was in office.

4) Registrar/Joint Registrar are legally obliged to comply with all the statutory formalities, including consultation with the financing banks/Controlling Banks etc. Only after getting their view, an opinion be formed as to whether an elected Committee be ousted or not.

5) Registrar/ Joint Registrar should always bear in mind the consequences of an order of supersession which has the effect of not only ousting the Board out of office, but also disqualify them for standing for election in the succeeding elections. Registrar/Joint Registrar therefore is duty bound to exercise his powers bona fide and not on the dictation or direction of those who are in power.

6) Registrar/Joint Registrar shall not act under political pressure or influence and, if they do, be subjected to disciplinary proceedings and be also held personally liable for the cost of the legal proceedings.

7) Public money not to be spent by the State Government or the Registrar for unnecessary litigation involving disputes between various factions in a co-operative society. Tax payers money is not expected to be spent for settling those disputes. If found necessary, the same be spent from the funds available with the concerned Bank.

………………..J. (K.S. Radhakrishnan)

………………..J. (Dipak Misra)

New Delhi,

May 16, 2013

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Moti Lal Songara Vs. Prem Prakash @ Pappu and ANR.

Moti Lal Songara Vs. Prem Prakash @ Pappu and ANR.

[Criminal Appeal No. 785 of 2013 arising out of SLP (CRL.) No. 294 of 2013]

Dipak Misra, J.

Leave granted.

2. The factual score of the case in hand frescoes a scenario and reflects the mindset of the first respondent which would justifiably invite the statement “court is not a laboratory where children come to play”. The action of the accused-respondent depicts the attitude where one calculatedly conceives the concept that he is entitled to play a game of chess in a court of law and the propriety, expected norms from a litigant and the abhorrence of courts to the issues of suppression of facts can comfortably be kept at bay. Such a proclivity appears to have weighed uppermost in his mind on the base that he can play in aid of technicalities to his own advantage and the law, in its essential substance, and justice, with its divine attributes, can unceremoniously be buried in the grave.

But, an eloquent one, the complainant with his committed and adroit endeavour has allowed the cause to rise like a phoenix from the grave by invoking the jurisdiction of this Court assailing the order passed by the High Court of Judicature of Rajasthan at Jodhpur in Criminal Revision No. 327 of 2011 whereby the learned single Judge by order dated 13.8.2012 accepted the plea of the accused-respondent and quashed the charges framed against him for the offences punishable under Sections 323, 324 and 307 of the Indian Penal Code (for short “IPC”) not on the substratum of merits but on the foundation that the order dated 19.11.2008 passed by the learned Additional Chief Judicial Magistrate taking cognizance and issuing summons had already been set aside by the Additional District and Sessions Judge, No. 1, Jodhpur, in Criminal Revision No. 7 of 2009 and, therefore, the principle “when the infrastructure collapses, the superstructure is bound to collapse” got attracted.

As it appears, though the High Court noticed the various dates, the suppression of facts and the factum that the accused being fully aware that the charges had been framed in Sessions Case No. 9 of 2009 by the learned Additional Sessions Judge, No. 3, Jodhpur on 27.7. 2009, chose not to inform the revisional court, namely, the learned Additional District and Sessions Judge, No. 1, Jodhpur, yet, possibly feeling legally helpless, interfered with the order of framing charges and quashed the same granting liberty to the prosecution to file an application under Section 319 of the Code of Criminal Procedure (for brevity “the Code”) at the relevant stage.

3. Presently to the initial factual exposition. The appellant, as informant, lodged a First Information Report No. 428 of 2007 on 23.11.2007 at Police Station Pratap Nagar, District Jodhpur, on the basis of which investigation was carried on and, eventually, a charge sheet was placed for the offences punishable under Sections 341, 323, 324, 307 and 379 IPC against one Shyam Lal s/o Venaram. After the submission of the charge-sheet, the informant filed an application before the learned Additional Chief Judicial Magistrate No. 2, Jodhpur, asseverating that another accused, Prem Prakash, who had attacked his son with knife had deliberately not been made an accused. The learned Magistrate, as is manifest, after analyzing the materials on record, thought it appropriate to take cognizance against Prem Prakash @ Pappu for the offences punishable under Sections 323, 324, 307 and 379 IPC and, accordingly, summoned him through arrest warrant.

4. Being dissatisfied, accused Prem Prakash called in question the legal sustainability of the said order in Criminal Revision No. 7 of 2009 which came to be dealt with by the learned Additional District and Sessions Judge, No. 1, Jodhpur who, after referring to the rulings in Kalamudeen and others v. State of Rajasthan and another[1] and Natthi Singh v. State of Rajasthan and another[2], opined that when the offences were triable by a court of Session, the Magistrate could not have taken cognizance on the basis of a protest petition and, accordingly, set it aside vide order dated 14.10.2009.

5. Be it noted, on that day, the Additional Public Prosecutor was present but, unfortunately, the informant who was arrayed as opposite party No. 2 in the revision petition was absent.

The disturbing feature, as is perceptible, is that on the basis of the cognizance taken by the learned Additional Chief Judicial Magistrate, both the accused persons, namely, Shyam Lal and Prem Prakash, were sent up for trial and the matter was dealt with by the learned Additional District and Sessions Judge, No. 3, Jodhpur who, on 27.7.2009, heard the learned counsel for the parties, the Public Prosecutor and after dwelling upon the allegations in the FIR, considering the involvement of the accused persons in the crime in question, taking note of the nature of injuries, adverting to the ingredients of the offence under Section 307 IPC, prima facie appreciating the credibility of the witnesses and many other factors, held as follows: – “…….looking to the facts and circumstances of the case, in the perspective of the principle propounded in the abovementioned rulings, prima facie, it appears that due to the reason of old enmity the accused persons have inflicted a number of injuries by the sharp weapon on the body of the victim and therefrom it is clear that common intention of the accused persons was to attempt to commit the murder of the victim Dinesh Kumar.

At this stage, it is not appropriate to minutely and critically appreciate the evidence. From the guidance sought from the abovementioned rulings, it is clear that at this stage compared to the result of the acts committed by the accused persons, criminal intention of the accused persons is more important. Any fatal injury has not been inflicted on any vital part of the body of the victim and only on that ground at this stage, it is not justified and lawful to discharge the accused persons from the offence punishable under Section 307 of the Indian Penal Code.”

6. However, as far as the offence under Section 379 IPC is concerned, he discharged them of the said charge. Ultimately, charges were framed for the offences under Section 341, 323/34, 324/34, 307 in the alternative under Section 307/304 IPC.

7. We have referred to the said order in detail to highlight that the matter was heard at length at the time of framing of charge and arguments were considered seeking discharge. However, for the reasons best known to the prosecution and to the accused-respondent, it was not brought to the notice of the learned Additional District and Sessions Judge No. 1, Jodhpur who allowed the revision holding that the order issuing summons was not justified. It is really unfathomable as to why the sustainability of the order taking cognizance when called in question was not heard by the learned Additional District and Sessions Judge No. 3, who was dealing with the Sessions Case No. 9 of 2009.

8. After the order taking cognizance was set aside in revision, an application was filed on 11.1.2010 seeking discharge. The learned trial Judge narrated the entire gamut of facts and observed that the fact of framing of charges was not brought to the notice of the learned Additional District and Sessions Judge, No.1, and further the High Court, in Criminal Revision No. 1046 of 2009 which was preferred against the order of framing of charge, neither set it aside nor modify it and, accordingly, did not think it appropriate to discharge the accused-respondent.

9. As the factual matrix would uncurtain, undeterred by his conduct, the respondent, Prem Prakash, preferred Criminal Revision before the High Court. The learned single Judge of the High Court, after chronicling the facts in detail, came to hold that when the order dated 14.10.2009 passed by the revisional court setting aside the order taking cognizance was not challenged, the very basis of the continuance of the proceeding had become extinct and, therefore, the order of framing of charges could not be sustained. However, as stated earlier, he granted liberty to the prosecution to file an application under Section 319 of the Code for summoning the additional accused at the appropriate stage. Be it noted, the High Court has also observed that the order passed in revision setting aside the order of cognizance was not justified in law.

10. Ms. Madhurima Tatia, learned counsel for the appellant, has submitted that when the accused has not approached the court in clean hands and the High Court itself has observed that the order setting aside the order of cognisance was not justified, it should not have interfered with the order passed by the learned trial Judge declining to discharge the accused. Per contra, Mr. Rishabh Sancheti, learned counsel for the respondent No. 1, would contend that the order passed by the High Court in revision is absolutely impeccable inasmuch as once the order taking cognizance had gone unchallenged, it was obligatory on the part of the High Court to direct a discharge. That apart, it is urged by him that the learned Magistrate could not have taken cognizance in exercise of power under Section 190 of the Code of Criminal Procedure. Mr. Imtiaz Ahmed, learned counsel for the State, submitted that though the State has not challenged the order, yet it is a case where the accused-respondent should not have been discharged.

11. First, we shall advert to the legal propriety of the order taking cognizance by the learned Additional Chief Judicial Magistrate. The learned counsel for the accused-respondent has submitted with immense vehemence that in view of the conflicting views, the controversy relating to the power of the Magistrate under Section 190 of the Code has been referred to the larger Bench and, hence, the order of taking cognizance is invulnerable. To appreciate the said submission, we think it seemly to refer to certain pronouncements pertaining to the said issue. In Ranjit Singh v. State of Punjab[3], a three-Judge Bench was dealing with the issue whether the Sessions Court can add a new person to the array of the accused in a case pending before it at a stage prior to collecting any evidence.

The three-Judge Bench was dealing with the said issue as reservations were expressed by a two- Judge Bench in Raj Kishore Prasad v. State of Bihar[4] with regard to the ratio laid down in Kishun Singh v. State of Bihar[5]. The conclusion that has been recorded in Ranjit Singh’s case is as follows: – “19. So from the stage of committal till the Sessions Court reaches the stage indicated in Section 230 of the Code that court can deal with only the accused referred to in Section 209 of the Code. There is no intermediary stage till then for the Sessions Court to add any other person to the array of the accused. 20. Thus, once the Sessions Court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers under Section 319 of the Code can be invoked. We are unable to find any other power for the Sessions Court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers.”

12. In Kishori Singh and others v. State of Bihar and another[6], the learned Judges have opined thus: – “10. So far as those persons against whom charge-sheet has not been filed, they can be arrayed as “accused persons” in exercise of powers under Section 319 CrPC when some evidence or materials are brought on record in course of trial or they could also be arrayed as “accused persons” only when a reference is made either by the Magistrate while passing an order of commitment or by the learned Sessions Judge to the High Court and the High Court, on examining the materials, comes to the conclusion that sufficient materials exist against them even though the police might not have filed charge-sheet, as has been explained in the latter three-Judge Bench decision. Neither of the contingencies has arisen in the case in hand.”

13. In M/s. India Carat Pvt. Ltd. v. State of Karnataka and another[7], a three-Judge Bench, after analyzing the provisions of the Code, referred to the decisions in Abhinandan Jha v. Dinesh Mishra[8] and H.S. Bains v. State[9] and, eventually, ruled thus: – “The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused.”

14. In Dharam Pal and others v. State of Haryana and another[10], a three- Judge Bench was dealing with a reference to resolve the conflict of opinions in Kishori Singh (supra), Rajinder Prasad v. Bashir[11] and SWIL Ltd. v. State of Delhi[12]. At that juncture, the pronouncements in Kishun Singh (supra) and Ranjit Singh (supra) were brought to the notice of the Court. After referring to various provisions of the Code, the Bench of three learned Judges expressed as follows: – “Prima facie, we do not think that the interpretation reached in Ranjit Singh case is correct. In our view, the law was correctly enunciated in Kishun Singh case. Since the decision in Ranjit Singh case is of three-Judge Bench, we direct that the matter may be placed before the Hon’ble the Chief Justice for placing the same before a larger Bench.”

15. There is no dispute that the reference is still pending. In Uma Shankar Singh v. State of Bihar and another[13], a two-Judge Bench was dealing with the issue pertaining to the power of the Magistrate under Section 190(1)(b) of the Code. After taking note of the decisions and the reference order in Dharam Pal (supra), the Court accepted the submission that the law is well settled that the Magistrate is not bound to accept the final report filed by the investigating agencies under Section 173(2) of the Code and is entitled to issue process against an accused even though exonerated by the said authorities without holding any separate enquiry on the basis of the police report itself. The learned Judges proceeded to state that even if the investigating authority is of the view that no case has been made out against an accused, the Magistrate can apply his mind independently to the materials contained in the police report and take cognizance thereupon in exercise of his powers under Section 190(1)(b) CrPC.

16. In the said case, while dealing with the pendency of a reference before a larger Bench and also adverting to the pending reference in relation to the lis, the Court observed as follows: – “…it is not necessary to wait for the outcome of the result of the reference made to a larger Bench in Dharam Pal case. The reference is with regard to the Magistrate’s power of enquiry if he disagreed with the final report submitted by the investigating authorities. The facts of this case are different and are covered by the decision of this Court in India Carat (P) Ltd. following the line of cases from Abhinandan Jha v. Dinesh Mishra onwards.”

17. In view of the aforesaid enunciation of law, we are of the considered view that the order taking cognizance cannot be found fault with. We may hasten to clarify that the learned Additional Chief Judicial Magistrate has taken cognizance on the basis of facts brought to his notice by the informant and, therefore, he has, in fact, exercised the power under Section 190(1)(b) of the Code.

18. The second limb of the submission is whether in the obtaining factual matrix, the order passed by the High Court discharging the accused- respondent is justified in law. We have clearly stated that though the respondent was fully aware about the fact that charges had been framed against him by the learned trial Judge, yet he did not bring the same to the notice of the revisional court hearing the revision against the order taking cognizance. It is a clear case of suppression. It was within the special knowledge of the accused.

Any one who takes recourse to method of suppression in a court of law, is, in actuality, playing fraud with the court, and the maxim supressio veri, expression faisi, i.e., suppression of the truth is equivalent to the expression of falsehood, gets attracted. We are compelled to say so as there has been a calculated concealment of the fact before the revisional court. It can be stated with certitude that the accused-respondent tried to gain advantage by such factual suppression. The fraudulent intention is writ large. In fact, he has shown his courage of ignorance and tried to play possum. The High Court, as we have seen, applied the principle “when infrastructure collapses, the superstructure is bound to collapse”. However, as the order has been obtained by practising fraud and suppressing material fact before a court of law to gain advantage, the said order cannot be allowed to stand.

That apart, we have dealt with regard to the legal sustainability of the order in detail. Under these circumstances, we are disposed to think that the power under Article 142 of the Constitution is required to be invoked to do complete justice between the parties. Cognizance of the offences had been rightly taken by the learned Magistrate and charges, as we find, have been correctly framed by the learned trial Judge. A victim of a crime has as much right to get justice from the court as an accused who enjoys the benefit of innocence till the allegations are proven against him. In the case at hand, when an order of quashment of summons has been obtained by suppression, this Court has an obligation to set aside the said order and restore the order framing charges and direct the trial to go on. And we so direct.

19. Consequently, the appeal is allowed, the order passed by the High Court in Criminal Revision No. 327 of 2011 and the order passed by the learned Additional District and Sessions Judge, No.1, Jodhpur, in Criminal Revision No. 7 of 2009 are set aside and it is directed that the trial which is pending before the learned Additional District and Sessions Judge, No. 3, Jodhpur, shall proceed in accordance with law.

………………..J. [K. S. Radhakrishnan]

………………..J. [Dipak Misra]

New Delhi;

May 16, 2013.

[1] 2005 (2) Cr.L.R. (Raj.) 1118

[2] 2007 (1) Cr.L.R. (Raj.) 621

[3] (1998) 7 SCC 149

[4] (1996) 4 SCC 495

[5] (1993) 2 SCC 16

[6] (2004) 13 SCC 11

[7] (1989) 2 SCC 132

[8] AIR 1968 SC 117

[9] (1980) 4 SCC 631

[10] (2004) 13 SCC 9

[11] (2001) 8 SCC 522

[12] (2001) 6 SCC 670

[13] (2010) 9 SCC 479

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Shyam Narain Vs. The State of NCT of Delhi

Shyam Narain Vs. The State of NCT of Delhi

[Criminal Appeal No. 1860 of 2010]

Dipak Misra, J.

The wanton lust, vicious appetite, depravity of senses, mortgage of mind to the inferior endowments of nature, the servility to the loath some beast of passion and absolutely unchained carnal desire have driven the appellant to commit a crime which can bring in a ‘tsunami’ of shock in the mind of the collective, send a chill in the spine of the society, destroy the civilized stems of the milieu and comatose the marrows of sensitive polity. It is brutal rape of an eight year old girl.

The sensitive learned trial Judge, after recording conviction under Section 376(2)(f) of the Indian Penal Code (for short “IPC”), had taken note of the brutality meted out to the child and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/- failing which to undergo rigorous imprisonment for six months. The Division Bench of the Delhi High Court has equally reflected its anguish over the crime by describing it as “pervaded with brutality” and “trauma which the young child would face all her life” and has concurred with the sentence of imprisonment and the fine.

2. This Court, at the time of issuance of notice, had restricted it to the quantum of sentence. However, we shall dwell upon the merits of the case in brief.

3. The horrid episode as unfurled by prosecution is that on 29.10.2003, about 6.30 p.m., an eight year old child, daughter of one Binda Saha, was taken by the appellant to Lal Bahadur Shastri Hospital and from there, being referred, she was admitted in GTB Hospital, Shahdara, at 1.30 a.m. on 30.10.2003. The young girl, as recorded in MLC Ext.PW- 10/D, had stated that she had fallen down in the toilet about 2.00 p.m. on 29.10.2003 as a consequence of which she had sustained the injuries. The treating doctor, Dr. Anju Yadav, was not convinced with what was being narrated to her.

As the factual narration would reflect, the duty constable informed the local police station, i.e., P.S. Kalyanpuri, about the admission of the young girl (hereinafter whom we shall refer to as ‘M’) and her condition, as recorded in the MLC. The child remained in the hospital for six days and thereafter she was discharged. The anxious mother, unable to digest the story that was told to her by the daughter, asked her to muster courage and tell the truth to her.

The young ‘M’ gained confidence and, eventually, on 10.11.2003, broke down before her mother and told her how the appellant had brutally raped her and threatened her that if she disclosed the said fact to anyone, her life as well as the lives of her parents would be in danger. The disturbed father proceeded to the police station and informed what was told by his daughter and, accordingly, an FIR was registered. After the criminal law was set in motion, the investigating agency arrested the accused and, eventually, the accused-appellant was sent up for trial. The accused pleaded innocence and claimed to be tried.

4. The prosecution, in order to establish the charge levelled against the accused, examined 11 witnesses including the child ‘M’, her parents, the doctors and other formal witnesses. The accused in his statement under Section 313 of the Code of Criminal Procedure stated that on 28.10.2003, the parents of ‘M’ had gone to see her maternal uncle and, therefore, he had taken the prosecutrix ‘M’ to the hospital for medical aid, but as Lal Bahadur Shastri Hospital refused on the ground that the prosecutrix should be taken to some big hospital, he took her to GTB Hospital for medical treatment.

It was his further explanation that he took the girl to the hospital for saving her life and he was not aware that she had been raped. The allegation of threat was disputed by the accused. It is also his stand that initially the child had not named him being asked by the doctor and had stated that she had sustained the injuries by fall, and after the discharge of the child, he went to attend his work on 4.11.2003. Be it noted, the defence chose not to adduce any evidence.

5. The learned trial Judge, considering the entire evidence on record and the contentions raised on behalf of the accused, came to hold that the version of the prosecutrix could be relied upon in entirety and by no stretch of imagination it could be said that she was a tutored witness; that the delay in lodging the FIR was not at all fatal to the case of the prosecution as the child was in a tremendous state of panicky; that the factum of rape has been clearly proven from the medical evidence and the testimony of the doctors which have remained unimpeachable despite roving cross-examination; that no plea of any hostility or previous animosity had been suggested to the child or to her parents; that the presence of the accused in the house had remained unexplained; and that no suggestion had been given to any of the doctors who were cited by the prosecution that the injuries could be caused by fall. Considering the entire evidence in detail, the learned trial Judge found the accused guilty of the offence under Section 376(2)(f) IPC and sentenced him as has been stated hereinbefore.

6. In appeal, the High Court took note of number of factors, narrating the condition of the child, the revelation of the tragic treatment by the accused, the circumstances under which the FIR was lodged, the testimony of the prosecutrix as to how she had been raped in a cruel manner by the accused, the absence of any reason of his going to the house of young ‘M’ and the circumstances under which he could see the injured child, the credibility and unimpeachability of the evidence of the child ‘M’, the courage that was gradually gathered by the child after getting out of the state of fear and trauma, the evidence of the doctors which showed the physical condition of the victim and the conduct of the accused in the hospital and, on the said basis, concurred with the view expressed by the learned trial Judge.

7. We have heard learned counsel for the appellant, and Mr. Paras Kuhad, learned Additional Solicitor General, and Mr. B.V. Balram Dass, learned counsel appearing for the NCT of Delhi.

8. To consider the defensibility of the judgment of conviction rendered by the learned trial Judge and affirmed by the Division Bench, it is necessary to appreciate the nature of injuries suffered by the victim. True it is, the young child had told the doctors that she had suffered a fall but the same was not given credence to by the treating doctors. The MLC where the condition of the young child was recorded is as follows: – “O/E-Apprehensive look, G.C. fair, pallor mild, P-96/m, BP 110/80, heart NAD. No bruises seen on the body. Breasts and secondary sexual characters not developed. P/A Soft, lever spleen not palpable. No shifting dullness, no area of tenderness.

L/E – On separation of labia, a tear of 1.5 approx. to 2 cm. seen from posterior fourchette towards anus just 1 cm. short of anal opening and same tear extending upto hymen. Clot was seen in her vagina, anal opening was intact, no area of bruise seen on perineum. Bleeding per vagina was present. Decision for examination under anaesthesia and repair of vaginal perennial tear taken. Patient was admitted in septic labour room and shifted to gynae emergency operation theatre. On examination under anaesthesia, showed same findings as above but in addition a tear of 3 cm approximately was seen in left vaginal wall from hymen into the vagina. Bleeding was positive. Apex of tear seen, tear stitched in layers, cervix seen healthy, no bleeding through OS. In view of EUA, findings under anaesthesia high index of suspicion of sexual assault was made although the child and her uncle were denying of any such episode.”

9. Dr. Sapna Verma, PW-4, who examined the victim, found that the hymen of the child ‘M’ was torn. The victim has deposed that about 1.00 p.m. in the afternoon, on the date of the incident, the accused-appellant came to the house and gave her an intoxicating drink and took her into a room. He raped her and also gave threat that if she would tell her parents or any other person, he would inflict knife blows upon her and her family members. He had further told her that she should tell her parents that she received the injuries when she slipped in the toilet.

It has also come in her evidence that the accused took her to the hospital while she was bleeding from her private parts. She has truthfully spoken that initially she told her parents that she had sustained injuries as a result of a fall in the toilet because she was terribly scared and thereafter she spoke out how she sustained the injuries. In her cross-examination, she has stood embedded in her version. The time gap between the occurrence and the accused taking the child to the hospital has its own significance. The child was bleeding from her private parts. Had the child been left to herself, she would have bled to death. The accused took her to the hospital to avoid a situation when somebody might have come hearing her cry and saved her life and she might have ultimately spoken the truth.

The totality of the circumstances would show that he was with the child. It is interesting to note that the accused had not disclosed why he had gone to the house of the child ‘M’ and under what circumstances he took the child to the hospital. The unimpeachable evidence of the child ‘M’, the testimony of the treating physicians, the medical evidence and the conduct of the accused go a long way to show that the accused had raped the child ‘M’ in a cruel and brutal manner and the conviction recorded on that score by the learned trial Judge which has been given stamp of approval by the High Court cannot be faulted.

10. Presently, we shall proceed to deal with the justification of the sentence. Learned counsel for the appellant, would submit that though Section 376(2) provides that sentence can be rigorous imprisonment for life, yet as a minimum of sentence of ten years is stipulated, this Court should reduce the punishment to ten years of rigorous imprisonment. It is urged by him that the appellant is a father of four children and their lives would be ruined if the sentence of imprisonment for life is affirmed. Mr. Paras Kuhad, and Mr. B.V. Balram Dass, counsel for the State, submitted that the crime being heinous, the sentence imposed on the accused is absolutely justified and does not warrant interference. It is also canvassed by them that reduction of sentence in such a case would be an anathema to the concept of just punishment.

11. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.

12. In this context, we may refer with profit to the pronouncement in Jameel v. State of Uttar Pradesh[1], wherein this Court, speaking about the concept of sentence, has laid down that it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.”

13. In Shailesh Jasvantbhai and another v. State of Gujarat and others[2], the Court has observed thus: “Friedman in his Law in Changing Society stated that: “State of criminal law continues to be – as it should be -a decisive reflection of social consciousness of society.” Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration”.

14. In State of M.P. v. Babulal[3], two learned Judges, while delineating about the adequacy of sentence, have expressed thus : – “19. Punishment is the sanction imposed on the offender for the infringement of law committed by him. Once a person is tried for commission of an offence and found guilty by a competent court, it is the duty of the court to impose on him such sentence as is prescribed by law. The award of sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being imposed therefore. 20. The object of punishment has been succinctly stated in Halsbury’s Laws of England, (4th Edition: Vol.II: para 482) thus:

“The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided”. (emphasis supplied)”

15. In Gopal Singh v. State of Uttarakhand[4], while dealing with the philosophy of just punishment which is the collective cry of the society, a two-Judge Bench has stated that just punishment would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self- adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors.

16. The aforesaid authorities deal with sentencing in general. As is seen, various concepts, namely, gravity of the offence, manner of its execution, impact on the society, repercussions on the victim and proportionality of punishment have been emphasized upon. In the case at hand, we are concerned with the justification of life imprisonment in a case of rape committed on an eight year old girl, helpless and vulnerable and, in a way, hapless. The victim was both physically and psychologically vulnerable. It is worthy to note that any kind of sexual assault has always been viewed with seriousness and sensitivity by this Court.

17. In Madan Gopal Kakkad v. Naval Dubey and another[5], it has been observed as follows:- “… though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms.”

18. In State of Andhra Pradesh v. Bodem Sundra Rao[6], this Court noticed that crimes against women are on the rise and such crimes are affront to the human dignity of the society and, therefore, imposition of inadequate sentence is injustice to the victim of the crime in particular and the society in general. After so observing, the learned Judges had to say this: – “The Courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society’s crime for justice against such criminals. Public abhorrence of the crime needs a reflection through the Court’s verdict in the measure of punishment. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment.”

19. In State of Punjab v. Gurmit Singh and others[7], this Court stated with anguish that crime against women in general and rape in particular is on the increase. The learned Judges proceeded further to state that it is an irony that while we are celebrating women’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection of the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. Thereafter, the Court observed the effect of rape on a victim with anguish: – “We must remember that a rapist not only violates the victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault – it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.”

20. In State of Karnataka v. Krishnappa[8], a three-Judge Bench opined that the courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. It was further observed that to show mercy in the case of such a heinous crime would be travesty of justice and the plea for leniency is wholly misplaced.

21. In Jugendra Singh v. State of Uttar Pradesh[9], while dwelling upon the gravity of the crime of rape, this Court had expressed thus: – “Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one’s physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu.”

22. Keeping in view the aforesaid enunciation of law, the obtaining factual matrix, the brutality reflected in the commission of crime, the response expected from the courts by the society and the rampant uninhibited exposure of the bestial nature of pervert minds, we are required to address whether the rigorous punishment for life imposed on the appellant is excessive or deserves to be modified. The learned counsel for the appellant would submit that the appellant has four children and if the sentence is maintained, not only his life but also the life of his children would be ruined. The other ground that is urged is the background of impecuniosities. In essence, leniency is sought on the base of aforesaid mitigating factors. It is seemly to note that the legislature, while prescribing a minimum sentence for a term which shall not be less than ten years, has also provided that the sentence may be extended upto life.

The legislature, in its wisdom, has left it to the discretion of the Court. Almost for the last three decades, this Court has been expressing its agony and distress pertaining to the increased rate of crimes against women. The eight year old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualised. The torment on the child has the potentiality to corrode the poise and equanimity of any civilized society. The age old wise saying “child is a gift of the providence” enters into the realm of absurdity. The young girl, with efflux of time, would grow with traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers.

Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilized norm, i.e., “physical morality”. In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone’s mind that, on one hand, the society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some pervert members of the same society dehumanize the woman by attacking her body and ruining her chastity. It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness.

It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed. We have emphasised on the manner because, in the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of “Spring of Life” and might be psychologically compelled to remain in the “Torment of Winter”. When she suffers, the collective at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society.

It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court. The mitigating factors put forth by the learned counsel for the appellant are meant to invite mercy but we are disposed to think that the factual matrix cannot allow the rainbow of mercy to magistrate. Our judicial discretion impels us to maintain the sentence of rigorous imprisonment for life and, hence, we sustain the judgment of conviction and the order of sentence passed by the High Court.

23. Ex consequenti, the appeal, being sans merit, stands dismissed.

……………………………………….J. [Dr. B. S. Chauhan]

……………………………………….J. [Dipak Misra]

New Delhi;

May 15, 2013

[1] (2010) 12 SCC 532

[2] (2006) 2 SCC 359

[3] AIR 2008 SC 582

[4] 2013 (2) SCALE 533

[5] (1992) 3 SCC 204

[6] AIR 1996 SC 530

[7] AIR 1996 SC 1393

[8] (2000) 4 SCC 75

[9] (2012) 6 SCC 297

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