Chittaranjan Das v State of West Bengal
Supreme Court of India

22 April 1963
Criminal Appeal No. 165 of 1960. Appeal from the judgment and order dated July 22, 1960, of the Calcutta High Court in Criminal Appeal No. 448 of 1960
The Judgment was delivered by: P. B. Gajendragadkar, J.
1. The appellant Chittaranjan Das was charged with having committed an offence punishable u/s. 376 I.P.C. This charge was framed against him on three counts. It was alleged that between November 18, 1958 and November 21, 1958 at 29A and B, Kailash Bose Street, Calcutta, lie committed rape on Sandhyarani Das Gupta alias Nirmala.
The second count was that he committed the same offence at the same place and in respect of the same girl between December 1, 1958 and December 6, 1958 ; and the third count related to the commission of the said offence between December 9, 1958 and December 15, 1958 at the same place and in respect of the same girl. Along with the appellant, Ganesh De was charged with having abetted the appellant in the commission of the said offence, the charge framed against Ganesh De being u/s. 376 read with s. 109 of the Indian Penal Code. The learned Presidency Magistrate, 8th Court, Calcutta, held the commitment proceedings, and was satisfied that the evidence adduced by the prosecution before him made out a prima facie case against both the accused persons. Since the offence in question was triable exclusively by the Court of Sessions, the learned Magistrate committed them to the Sessions on May 4, 1960.
2. The case of the appellant and his co accused was then tried by the City Sessions Court at Calcutta with the aid of jury. The jury returned a verdict of guilty against the appellant in respect of all the three counts. A similar verdict was brought by the jury in respect of the co accused Ganesh De. The learned Sessions judge took the view that the verdict of the jury was not perverse, and so, he decided to accept the said verdict and accordingly convicted the appellant under s. 376 and sentenced him to suffer rigorous imprisonment for four years on the first charge. No separate sentence was awarded in respect of the other charges. Ganesh De was also sentenced to a similar period of imprisonment. This order was passed on July 9, 1960.
The appellant challenged the correctness of the order of conviction and sentence passed against him by the learned Sessions judge by preferring an appeal before the Calcutta High Court. A Division Bench of the said High Court did not feel impressed by the points made on appellant's behalf, and so, his appeal was summarily dismissed on July 22, 1960. The appellant then applied for a certificate u/art. 134 (1) (c) of the Constitution.
This application was allowed by Labiri C.J. and Bose J. on the ground that some of the points which the appellant wanted to raise before this Court by his appeal were substantial points of law, and so' _they granted him a certificate under the said Article. It is with this certificate that the appellant has come to this Court.
3. Before dealing with the points which fall to be considered in the present appeal, it is necessary to state briefly the material facts leading to the prosecution of the appellant. Sandhyarani Das Gupta was a minor girl who was staying with her mother Soudamini in the Refugee Colony at Ghola. It appears that one Maniprova alias Manibala Majumdar induced this young girl to go to her house 'at Ashutosh Mukherjee Road, Bhowanipur some time in the first week of November 1958. Manibala induced Sandhya to go to her place with a promise that she would secure a nurse's job for her. The appellant was the Zonal Officer of the Refugee Rehabilitation Office at Tollygunge at that time and, according to the prosecution, the co accused Ganesh De was a Peon in the said office. The prosecution alleged that in course of time, Sandhya was taken to the appellant in his house in about the middle of November 1958 on the representation that the appellant wanted to give her employment. When Sandhya met the appellant, the appellant held out the hope of a job for her and he managed to ravish her. Similarly, Sandhya was taken to the house of the appellant on two or three occasions within a period of one month and each time the appellant had sexual intercourse with her. Every time this happened the appellant promised that he would provide Sandhya with a job.
4. The prosecution case is that as a result of this sexual intercourse, Sandhya conceived and the appellant was anxious to cause her abortion. In accordance with the plan, Mani bala attempted to cause her abortion but did not succeed, and so, the girl was taken to the Chittaranjan Sevasadan on February 11, 1959 where the abortion was completed. Some time, thereafter, she was sent back to her own house on her insistance.
It appears from the evidence that Sandhya was again taken to the house of the appellant and was ravished by him. This happened on two or three occasions again. At one of these meetings with the appellant, Sandhya was introduced to a young man named Himangsu Ganguli. This young man had approached the appellant for a job. The appellant exploited the helpless position of both Himangsu and Sandhya, and asked them to go through a show of marriage. Thereafter, the appellant wanted a photograph in proof of their marriage and a group photo was accordingly taken with Ganesh De, Manibala, Himangsu and Sandhya, the last two having posed as husband and wife. Himangsu and Sandhya then went to the house of the appellant and gave him a copy of the photograph. This time again Sandhya was ravished by the appellant. That, in broad outlines, is the prosecution case against the appellant. On June 6, 1959, Sandhya's mother filed a complaint that her daughter had disappeared. This complaint was investigated by the Enforcement Branch Calcutta, and in consequence, Sandhya was recovered from the house of Ganesh De on June 10, 1959. She was then taken to the Tollygunge Police Station where her statement was recorded. It, however, appeared that the offence which on Sandhya's statement seemed to have been committed by the appellant was within the jurisdiction of the Amherst Street Police Station, and so, the case papers were transferred to the said Police Station. Sandhya's statement was again recorded at this Police Station on June 12, 1959. As a result of the statement, Challan was forwarded which specified November 14, 1958, May 30, 1959 and June 6, 1959 as the dates on which the appellant had raped Sadhya. Subsequently, the appellant was arrested and he along with the co accused was charged before the Court of the Presidency Magistrate as we have already mentioned. In 'granting certificate to the appellant, the High Court has held that the point which the appellant sought to raise in regard to the invalidity and illegality of the charge was a point of substance. In fact, it has observed that the scheme of s. 222 of the Criminal Procedure Code seems to suggest that the charge framed in the present case con ravened the requirement of s. 222 (1), and was therefore, invalid.
5. The High Court also appears to have thought that this contention received support from a decision of the Calcutta High Court in Ali Hyder v. Emperor,, (1939) 40 Cr. L. J. 280 1938 Indlaw CAL 95. It is, therefore, necessary to examine this argument at the outset. We have already set out the 3 counts of the charge framed against the appellant and we have noticed that in the three counts periods were mentioned within which the appellant was alleged to have committed rape on Sandhya. The first period was between 18.11.1958 to 21.11.1958, second was 1.12.1958 to 6.12.1958 and the third was 9.12.1958 to 15.12.1958. The argument is that s. 222 (1) Cr. P.C. requires that the charge must specify, inter alia, the particulars as to the time when the offence was committed, and this means that the precise date on which and the time at which the offence was committed must be stated in the charge. Before dealing with this argument, it is necessary to read s. 22 :
"(1) The charge shall contain such particulars as to the time and place of the alleged offence and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of s. 234 :
Provided that the time included between the first and last of such dates shall not exceed one year."
6. The appellant's contention is that it is only in cases under s. 222 (2) where the prosecution is not required to specify the precise date and time at which the offence is committed ; and that means that it is only in respect of the offences of criminal breach of trust or dishonest misappropriation of money to which they said subsection applies that liberty may be claimed by the prosecution not to mention the date and time of the offence. In all other cases to which s. 222 (1) applies, particulars as to the time and place of the alleged offence must be specifically mentioned. In our opinion, this contention is not well founded. In fact, Mr. Chari who appeared for the appellant himself fairly conceded that in almost every charge to which s. 222 (1) applies, it is usual to state that the particular offence was committed on or about a certain date. In other words, it is not suggested by Mr. Chari that the specific date and the specific time must necessarily be stated in the charge in every case. If it is permissible to say in a charge that a particular offence was committed on or about a specified date, without specifying the particular time, it is difficult to hold that because a period of four or five or six days is indicated in the charge within which the offence is alleged to have been committed s. 222 (1) has been contravened. It is true that subs. (2) specifically deals with two kinds of offences and makes a provision in respect of them, but that is not to say that in every other case, the time must be so specifically mentioned as to indicate precisely the date and the time at which the offence was committed.
It is quite clear that of the charge mentions unduly long period during which an offence is alleged to have been committed, it 'would be open to the criticism that it is too vague and general, because there can be no dispute that the requirement of s. 222 (1) is that the accused person must have a reasonably sufficient notice as to the case against him. The basic requirement in every criminal trial therefore, is that the charge must be so framed as to give the accused person a fairly reasonable idea as to the case which he is to face, and that validity of the charge must in each case be determined' by the application of the test, viz., had the accused a reasonably sufficient notice of the matter with which he was charged ? It is quite conceivable that in some cases by making the charge too vague in the matter of the time of the commission of the offence an accused person may substantially be deprived of an opportunity to make a defence of alibi, and so, the criminal courts naturally take the precaution of framing charges with sufficient precision and particularity in order to ensure a fair trial ; but we do not think it would be right to hold that a charge is invalid solely for the reason that it does not specify The particular date and time at which any offence is alleged to have been committed. In this connection, it may be relevant to bear in mind that the .requirements of procedure are generally intended to sub serve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may sometimes frustrate the ends of justice. Where the provisions prescribed by the law of procedure are intended to be mandatory, the legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves ; but where the provisions made by the law of procedure are not of vital importance, but are, nevertheless, intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused. This position is made clear by ss. 535 and 537 Cr. P. C.
Take, for instance, the case of murder where the prosecution seeks to prove its case against an accused person mainly on circumstantial evidence. In such a case, investigation would generally begin with, and certainly gather momentum after the discovery of the dead body. In cases of circumstantial evidence of this character, it would be idle to expect the prosecution to frame a charge specifying the date on which the offence of murder was committed. All that the prosecution can do in such cases is to indicate broadly the period during which the murder must have been committed. That means the precision of the charge in respect of the date on which the offence is alleged to have been committed will depend upon the nature of the information available to the prosecution in a given case. Where it is possible to specify precisely the necessary particulars required by's. 222 (1), the prosecution ought to mention the said particulars in the charge, but where the said particulars cannot be precisely specified in the charge having regard to the nature of the information available to the prosecution, failure to mention such particulars may not invalidate the charge.
7. In this connection, it may be useful to refer to the facts in the present case. The evidence of Sandhya shows that she and the members of her family had to face the terrible problems posed before the refugees in that part of the country, and in her anxiety to help her destitute family in its hour of need Sandhya was very easily persuaded by Manibala to adopt the course of earning money by selling her body. In such a case, if the minor girl has been exposed to the risk of having sexual intercourse with several people from time to time, it is unreasonable to expect that she would be able to specify the precise dates on which particular individuals had intercourse with her. If it is insisted that in a case of this kind, the charge of rape framed against the appellant must specify the date on which the offence was committed by him, it would really mean that the appellant cannot be charged with the offence because the unfortunate victim would, in the ordinary course of things, not be able to state precisely the dates on which she was made to submit to the appellant.
Therefore, in dealing with the question as to whether the charge framed in a criminal trial has contravened s. 222 (1), the Court will have to examine all the relevant facts and if it appears to the Court that having regard to them, the charge could and ought to have been framed more precisely, the Court may reach that conclusion and then enquire whether the defective charge has led to the prejudice of the accused. That, in our opinion, is the reasonable course to adopt in dealing with contentions like the one raised by the appellant before us. The question of prejudice did not impress the High Court, because it has summarily dismissed the appeal. It is not a matter on which the appellant can be permitted successfully to challenge the view taken by the High Court. In this connection we ought to add that the decision in the case of Ali Hider, (1939) 40 Cr. L .T. 280. to which the High Court has referred in granting a certificate on this point does not support the contention in question.
8. The next ground on which the High Court has granted certificate to the appellant is that the Division Bench should not have summarily dismissed his appeal, and in coming to the conclusion that this argument amounted to a substantial point of law, the High Court has referred to two decisions of this Court in Mushtak Hussein v. The State of Bombay,, A I.R. 1953 S.C. 282 1953 Indlaw SC 10. and Shreekantiah Ramayya Municipalli v. State of Bombay, A. I. R. 1955 S. C. 287 1954 Indlaw SC 175In Mushtak Hussein's case, this Court has no doubt observed that it is riot right for the High Court to dismiss an appeal preferred by the accused to that Court summarily where it raises some arguable points which require consideration. It was also added that in cafes which prima facie raise no arguable issue, that course is, of course, justified. It is in the light of this conclusion that this Court stated that it would appreciate it if in arguable cases the summary rejection orders give some indications of the views of the High Court on the points raised.
In the case of Shreekantiah Ramayya it appeared that out of the two appeals filed separately by two different accused persons against the same judgment, one was summarily dismissed by one Bench of the High Court and the other was admitted by another Bench. It is in the light of this somewhat anomalous position that this Court repeated its observation made in the case of Mushtak Hussein, A I.R. 1953 S.C. 282. 1953 Indlaw SC 10 that summary rejections of appeals which raise issues of substance and importance are to be disapproved.
9. With respect, there can be no doubt whatever that in dealing with criminal appeals brought before them the High Courts should not summarily reject them if they raise arguable and substantial points and it would be stating the obvious if we were to add that no High Court summarily dismisses a criminal appeal if it is satisfied that it raises an arguable or substantial question either of fact or of law. In this connection, it is, however, necessary to bear in mind that it is for the High Court which deals with the criminal appeal preferred before it to consider whether it raises any arguable or substantial question of fact or law, or not. S. 421 (1) of the Code provides that on receiving the petition and copy under s. 419 or s. 420., the appellate court shall peruse the same, and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily. The proviso to this section requires that no appeal presented under s. 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same. Subs. (2) empowers the appellate court to call for the record of the case before dismissing the appeal under subs. (1) but it does not make it obligatory on the court to do so.
Therefore, the position under s. 421 is clear and unambiguous. When a criminal appeal is brought before the High Court, the High Court has to be satisfied that it raises an arguable or substantial question; if it is so satisfied, the appeal should be admitted; if, on the other hand, the High Court is satisfied that there is no substance in the appeal and that the view taken by the Trial Court is substantially correct, it can summarily dismiss the appeal. It is necessary to emphasis that the summary dismissal of the appeal does not mean that before summarily dismissing the appeal, the High Court has not applied its mind to all the points raised by the appellant. Summary dismissal only means that having considered the merits of the appeal, the High Court does not think it advisable to admit the appeal because in its opinion, the 'decision appealed against is right. Therefore, we do not think the High Court was right in granting certificate to the appellant on the ground that his appeal should not have been summarily dismissed by another Division Bench of the said High Court. If the High Court in dealing with criminal appeals takes the view that there is no substance in the appeal, it is not necessary that it should record reasons for its conclusion in summarily dismissing it. .
10. The third ground on which the certificate has been granted by the High Court is in regard to an alleged misdirection in the charge delivered by the learned Sessions judge to the jury. It appears that in dealing with the argument of the defence that the charge was vague and that the dates specified in the charge did not correspond to the dates given by Sandhya in her evidence, the learned Judge told the jury that if the statement of the girl in her cross examination is taken as the basis, the dates on which the girl was ravished by the appellant would not be covered by the three sets of dates mentioned in the charge, and then he added that "in case you hold that the charges are in order, in that case you shall proceed to consider the evidence." It was urged by the appellant before the Division Bench of the High Court which granted the certificate that the last statement constituted a misdirection. The argument was that whether or not a charge is valid is a question of law which the learned judge should have decided himself and given a direction to the jury in accordance with his decision; inasmuch as he left that question to the jury, he failed to exercise his jurisdiction and to discharge his duty, and as such the charge must be held to suffer from a serious misdirection. This argument appears to have appealed to the Division Bench which granted the certificate and has been pressed before us by Mr. Chari. In our opinion, there is no substance in this argument. We should have stated earlier that after the committal order was passed by the presidency Magistrate, the appellant moved the High Court in its revisional jurisdiction and urged that the charge framed against him was defective and invalid and should be quashed.
The High Court rejected this contention and held that the charge was valid within the meaning of s. 222 and s. 234 of the Cole. Therefore, the true position is that at the time when the learned Sessions judge delivered his charge to the jury, the question about the validity of the charge had been considered by the High Court and so far as the learned Sessions Judge was concerned, the finding of the High Court was binding on him, so that when they learned Sessions judge told the jury that they may consider whether the charges were in order, he was really leaving it open to the jury to consider the matter which had been decided against the appellant and in favour of the prosecution. If there can be any grievance against this part of the charge, it would be in the side of the prosecution and not on the side of the appellant.
That leaves to be considered certain other alleged misdirection's to which Mr. Chari has referred. Mr. Char; contends that in explaining the true legal position with regard to the evidence of a prosecutrix in cases of rape, the learned judge did not cell the jury that in view of the contradictions brought out in the evidence of Sandhya and in view of her past career and record, her evidence should not be believed. Mr. Chari argues that when criminal courts require corroboration to the evidence of the prosecutrix in such cases, as a matter of prudence, it necessarily means that in the first instance, the prosecutrix must appear to the court to be a reliable witness. If the prosecutrix does not appear to be a reliable witness, or if her evidence suffers from serious infirmities, corroborations in some particulars would not help the prosecution, and according to Mr. Chari, this aspect of the matter was not properly brought to the notice of the jury by the learned Sessions judge. We do not think there is any substance in this contention.
11. We have carefully read the charge and we are satisfied that on the whole, the charge has not only been fair, but has. been more in favour of the appellant than in favour of the prosecution. In fact, the whole tone of the charge indicates that the learned Sessions judge was not satisfied that the prosecution had really made out a case against the appellant beyond a reasonable doubt. But in delivering charge to the jury, the learned Sessions judge can never usurp the function of the jury. He cannot pronounce on the reliability or otherwise of any witness. The requirement as to corroboration in regard to the evidence of a prosecutrix like Sandhya has been elaborately explained by the Sessions judge to the jury. He told them that the most important witness in the case was Sandhya and that there was hardly any corroborative evidence to her story. He also warned them that though it was not illegal to act upon the evidence of a prosecutrix, it was unsafe to adopt that course and he said that before convicting the appellant on the uncorroborated testimony of Sandhya, the members of the jury should ask themselves whether they were so much convinced about the truthfulness of the girl as to accept her evidence in its entirety. He referred to the broad and material contradictions brought out in her evidence and asked them to bear that fact in mind in deciding whether they should accept her testimony or not. Having regard to the several statements made by the learned judge in his charge on this topic we find it difficult to accept Mr. Chari's grievance that the charge was materially defective in this matter.
12. The next misdirection or) which Mr. Chari has relied is in regard to the prosecution evidence about the age of the girl. The prosecution alleged that the girl was below If) years of age, whereas the defence contended that she was above 16 and was a consenting party. As usual, evidence was given by the prosecution in support of its case as to the girl's age. This evidence consisted of the testimony of the girl's mother Saudamini and of Dr. Nag as well as Dr. Saha. Having summarised the material evidence fairly and accurately, the learned judge told the jury that the said evidence was no doubt somewhat conflicting and he warned them that they had to decide as a question of fact whether the age of the girl at the relevant time was above or below 16. Mr. Chari contends that at this stage, the learned judge should have told the jury that the onus to prove the fact that the girl was below 16 was on the prosecution and that if there was any doubt about her age, the benefit of the doubt must go to the appellant. We do not think there is any substance in this argument. In the first part of his charge, the learned judge explained to the jury the essential requirements which had to be proved by the prosecution in support of its charge under s. 376, and there the learned judge had made it clear to the jury that the prosecution had to show that the girl was below 16. 'That being so, we do not think that his failure to mention the point about onus once again when he dealt with the actual relevant evidence, can be said to constitute a misdirection, much less a material misdirection which may have led to the prejudice or the appellant.
13. The last misdirection on which Mr. Chari has relied is the statement of the learned judge that the previous statements made by the girls which had been brought on the record do not constitute substantive evidence but are intended only to contradict the actual evidence given by her in court. It appears that on behalf of the appellant the evidence given by the girl on a previous occasion had been brought out under s.145 of the Indian Evidence Act. In that statement the girl had sworn that Anil Chattered had sexual relations with her day after day and that she had sexual relations with others also. The girl admitted in her cross examination that her statement had been recorded on a previous occasion by the Magistrate, Alipore, but when the contents of the statement were put to her, she said she did not remember whether she had made those statements or not. Now, it is clear that when a previous statement is put to a witness in cross examination under s.145 of the Indian Evidence Act, its primary purpose is to contradict the witness by reference to the evidence he gives at the trial, and so, it cannot be said that the learned judge was wrong in law in telling the jury that the previous statement on which the defence relied may help the defence to contend that the girl was not a straightforward witness and was changing her story from time to time, but the said previous statement cannot be treated as substantive evidence at the trial. That is the true legal position and no grievance can be made against the charge for stating the said position in the terms adopted by the learned Sessions judge. Therefore, we do not think that the grievance made by Mr. Chari that the charge suffered from serious misdirections is well founded.
There is one more point which we may mention before we part with this appeal. After the verdict was returned by the jury, the learned Sessions Judge considered the question as to whether he should accept the said verdict, or should make a reference. In that connection, he observed that the verdict that the jury had returned against the appellant, was practically based on the uncorroborated testimony of the pro secutrix but he thought that the said course adopted by the jury cannot be said to be illegal and he was not prepared to take the view that the verdict of the jury was in any way perverse.
14. Mr. Chari contends that having regard to the general tone of the charge delivered by the learned judge to the jury, the learned judge should have treated the verdict as perverse and not acted upon it. We do not think that this contention can be accepted. In his charge, the learned judge no doubt indicated that the evidence of the girl was not satisfactory, that it was not corroborated and that there were other circumstances which showed that the prosecution case might be improbable, but having done his duty, the learned judge had to leave it to the jury to consider whether the prosecution had established its charge against the appellant beyond reasonable doubt or not. The jury apparently considered the matter for an hour and half and returned the unanimous verdict of guilty. In the circumstances of this case, we cannot accede to Mr. Chari's argument that the Session Judge was required by law to treat the said verdict as perverse. In a jury trial where questions of fact are left to the verdict of the jury, sometimes the verdicts returned by the jury may cause a disagreeable surprise to the judge, but that itself can be no justification for characterising the verdict as perverse.
15. In the result, the appeal fails and is dismissed, the appellant to surrender to his bail bond.
Appeal dismissed.


Sakharam v State of Maharashtra
Supreme Court of India

22 April 1969
Cr.A. No. 258 of 1968.
The Judgment was delivered by: BHARGAVA, J.
1.  This appeal, by special leave, is directed against a judgment to the High Court of Bombay, Nagpur Bench, summarily dismissing an appeal filed by the appellant Sakharam against his conviction and sentence of 5 years' rigorous imprisonment and 3 months R. I. for offences punishable u/ss. 307 and 148 of the Indian Penal Code respectively awarded to him in a Sessions trial by the Sessions Judge of Yeotmal. With this appellant were arrays four other person who were convicted for an offence under Section 147, I.P.C., only and sentenced to pay a fine of Rs. 100/- each, in default, to suffer rigorous imprisonment for one month.
2.  The prosecution case, which the Sessions Judge held to be proved, was that, on 5th September, 1967, Shamrao, who was accused No. 2 with the appellant in the Sessions trial, went to the hotel of one Kashinath alias Natha, son of Dayaram, at about noon with a bottle of liquor and demanded glasses for drinking liquor inside the hotel. Kashinath as well as his servant Rangnath refused to comply with his request. Shamrao felt aggrieved, abused both of them, and gave a threat to Kashinath.
3.  Next day, on 6th September, 1967, in the evening, the appellant, who was accused No. 1, Shamrao and two others went to the hotel of Kashinath's father Dayaram and abused Kashinath in his absence. They also gave threats saying that hey would cut Kashinath to pieces. Later, still in the evening at about 8.30 or 9 p.m., Kashinath happened to be near the State Bank square on Dhamangaon Road in the company of his servant Rangnath and two others person Ramnath and Vishwanath. They were going towards Mahadeo Temple beyond the Post Office. Rangnath was walking ahead, while the other three were behind him at a short distance. The appellant, who was concealing himself in the shadow of a 'neem' tree, suddenly rushed out and with a sharp-edged weapon stabbed Rangnath in the abdomen. Rangnath cried aloud, whereupon his three companions Kashinath, Vishwanath and Ramnath tried to go to his rescue. The appellants then called out to his associates who were armed with sticks and, as a result 10 or 12 persons, including the four other accused who were arrayed with the appellant in the Sessions Trial, arrived and tried to assault the companions of Rangnath. The three companions of Rangnath ran away. Rangnath received a serious injury in the abdomen and his intestinal loops came out of that injury. The appellant and his companions ran away after inflicting this injury on Rangnath. Rangnath walked for a short distance and was then carried by two truck drivers to a hut near the cotton market. One of those drivers Vishwanath Kute informed the police on the telephone that a person was lying injured there. The police arrived with a vehicle, took Rangnath to the Main Hospital at Yeotmal where Rangnath's statement was recorded by the police Sub-Inspector. A case was registered.
4.  Rangnath's condition was serious and, hence, his dying declaration was recorded by the Taluq Magistrate. He was first examined by Dr. Bhoot and was, later, operated upon by Dr. Gogate. He remained in the hospital until the 4th October, 1967 when he was discharge. The injury received by Rangnath was found by the doctors to be dangerous one which, in their opinion, was sufficient in the ordinary course of nature to cause death. It was only fortunate that Rangnath received immediate treatment and survived.
5. The Sessions Judge discussed the entire prosecution evidence which was produced before him in support of this case and, believing the evidence given by the prosecution, held that the appellant was clearly guilty of an attempt to commit the murder of Rangnath and that he had also taken part in a riot while he was armed with a dangerous sharp-edged weapon Consequently, he convicted the appellant as mentioned above. When the appellant appealed to the High Court, the High Court dismissed the appeal summarily. This Court granted special leave to appeal to the appellant against this order of the High Court, limited to the question that the High Court was not justified in dismissing the appeal summarily. In these circumstances, the arguments that have been advance before us in this appeal have not been concerned so much with the merits of the conviction of the appellant, but with the question whether it was a fit case where the High Court should not have dismissed the appeal summarily, should have sent for the record, and written a full-reasoned judgment if the High Court was of the opinion that the appeal could not succeed.
6.  It appears that the High Court adopted the course of dismissing the appeal summarily because, on perusal of the judgment of the Sessions Judge and on hearing arguments advanced before it at the preliminary hearing of the appeal u/s. 421 of the Code of Criminal Procedure, the High Court was of the opinion that the judgment given by the Sessions Judge was clearly right hand did not require any scrutiny with the aid of the record. Learned counsel appearing before us on behalf of the appellant has urged that there were a number of aspects which the High Court should have carefully examined, so that the procedure adopted of dismissing the appeal summarily was not justified. He formulated five points in support of this submission which are as follows :
(1) There was no motive for the appellant to stab Rangnath;
(2) The truth of the prosecution case depends upon evidence of eye-witnesses and it was necessary for the High Court to examine the question whether they were got up witnesses and whether their evidence was reliable;
(3) Apart from the evidence of eye-witnesses, there was no circumstantial evidence supporting the prosecution case, in view of the fact that the weapon alleged to have been used was not recovered and no blood stains were found by the police at the spot where Rangnath was alleged to have been stabbed;
(4) In any case the appellant could not be convicted for the offence under Section 307, I.P.C.; and
(5) In any case, the offence committed by the appellant could not fall under Section 148, I.P.C.
7.  After hearing learned counsel, we are unable to find much substance in any of these points. On the first point, it is true that the prosecution version itself was that the quarrel initially began between Shamrao, an associate of the appellant and Kashinath; but the version given by the prosecution also shows that even Rangnath was also involved in those earlier incidents and that the appellant was taking keen interest on behalf of Shamrao. On the 5th September, 1967, when Shamrao wanted glasses to drink liquor in the hotel, Rangnath had also refused to oblige him just as his master Kashinath had done. On the 6th September, 1967 before this incident of stabbing, the appellant had come in the company of Shamrao and others and had abused Kashinath and had given treats to him. It is true that, at that stage, hen giving the threats, the appellant and his companions did not mention Rangnath but it is clear that their grievance on behalf of Shamrao was against both of them. It is, therefore, not surprising that on 6th September, 1967, when the appellant came to punish those against whom grievance had arisen, he stabbed Rangnath who happened to be in the lead and was the person first available for being injured. Kashinath happened to be walking behind.
8. The prosecution evidence shows that attempt was made to assault Kashinath also, but he and the other two persons Vishwanath and Ramnath ran away, so that they escaped unhurt. There seems to be nothing unnatural in the attack having been made first against Rangnath who was ahead and was the first person met by the appellant when he came for the attack.
9.  On the second point we find that the Sessions Judge believe the evidence of Rangnath and the other three witnesses who saw this incident, and we are unable to find any cogent reasons in support of the submission made by learned counsel that these witnesses should not have been believed. The Sessions Judge himself accepted their evidence with caution, because he appears to have felt that they were all partisan and interested witnesses. The reason that the Sessions Judge gave for holding them to be partisan witnesses was that Rangnath was himself the injured person, while Kashinath was his master, and Ramnath and Vishwanath were his cousins. It appears to us that this close association between the witnesses was clearly no reason at all for doubting their veracity, because Rangnath as well as all of them must have been keen to see that the person who really stabbed Rangnath should be punished, and would not be parties to implication of innocent person in place of the real assailant or assailants. They would, therefore, be the best witnesses for giving evidence against the real culprits. The only point worth consideration, which learned counsel was able to urge before us was that the three witnesses, Kashinath, Vishwanath and Ramnath, according to their own evidence, ran away to the fields and spend the whole night in a sugarcane field instead of going into the town, informing the police or obtaining assistance from others. The conduct of the witnesses does appear to indicate, as stated by them, that thy were under great fear from the appellant and his companions and that was why they did not dare to come back to the town in the night.
10. It has to be remembered that a threat had been given earlier in the day to Kashinath that he would be cut to piece and, even though Rangnath had been stabbed, Kashinath and the other companions could be under genuine apprehension that the appellant and his companions might still be on the look-out for them and might cause them serious injuries or even kill them.
11.  The conduct was, therefore, not so unnatural as is sought to be urged by learned counsel that the Session Judge had committed an error in treating the statement Ext. 16 of Rangnath recorded by the Police Sub-Inspector at the Hospital as the First Information Report, because, earlier, information of this incident had been received from Vishwanath Kute, the truck driver. The evidence however shows that Vishwanath Kute gave no details and his telephonic message did not even indicate that a criminal offence had been committed. The only information he gave was that a person was lying injured; and that information given by him could not be treated as the First Information Report. Obviously, the First Information Report was drawn up on the basis of Ext. 16 which was the statement made by Rangnath to the Police Sub-Inspector.
12. Learned counsel also urged that the High Court should have considered the discrepancies which appeared between the statements of various witnesses. These discrepancies were fully discussed by the Sessions Judge in his judgment and, if the High Court saw that the reasoning adopted by the Sessions Judge was correct, there was no need for the High Court to send for the record to arrive at the decision that the Sessions Judge was right.
13.  As regards the third point, it is true that the weapon was not recovered; but that circumstance is quite immaterial when the medical evidence is clear that Rangnath received his injury from a sharp-edged weapon. The fact that the police, at the time of inspection, or unable to find blood stains at the place of occurrence was also fully explained by the Sessions Judge. Rangnath himself was seriously injured and, in the night, he was unable to show the place of occurrence to the police. The other three witnesses did not meet the police until next morning and it was only after the police examined those witnesses that it became possible to make a local inspection of the scene of occurrence. There was, thus, a delay of more than 12 hours between the incident and the inspection of the spot by the police. The Sessions Judge was quite right in saying that the disappearance of the blood stains, even if there were any, is explained by the lapse of time during which a lot of traffic must have passed over the place of occurrence which was on an important highway.
14. With regard to the fourth point, the argument made by learned counsel was that the appellant did not actually intend to stab Rangnath which should be inferred from the circumstance that the main grievance of the appellant was against Kashinath, and that Rangnath was stabbed only by a mistake, so that it could not be held that the appellant had intended to cause the death of Rangnath. It may be noticed that the Sessions Judge held that the appellant was guilty of committing an offence of attempted murder not because he intended cause the death of Rangnath, but because the evidence showed that he intended to cause such injury to Rangnath as was sufficient in the ordinary course of nature to result in his death. In this finding it would be immaterial whether that particular injury was sought to be given by the appellant to Rangnath or to Kashinath in view of the provisions of S. 301 of the Indian Penal Code. The inference that the injury intended to be caused by the appellant was sufficient in the ordinary course of nature to cause death follows from the fact that the appellant used a sharp-edged weapon and gave the injury in the abdomen which was a very vital part of the body. In fact, the medical evidence is that the injury was a dangerous one and was sufficient to cause death in the ordinary course of nature. The conviction of the appellant for the offence under Section 307, I.P.C., was, therefore, fully justified.
15.  The last point relating to the conviction under Section 148, I.P.C., was based on the fact that, according to the Sessions Judge himself, it was not possible to give a definite finding whether the weapon used was a penknife, a knife, a dagger, a jambiya, or a spearhead. It seems to us that the absence of a definite finding is immaterial, because, whatever the weapon, it was certainly one which was sharp-edged and was capable of inflicting an incised injury 1/2" long, 1/2", wide and having a depth upto peritonial cavity. Such weapon would clearly be a dangerous weapon or at least as weapon which, if used as a weapon of offence, was likely to cause death. The conviction of the appellant under Section 148, I.P.C., was also, therefore, on the face of it, fully justified.
16. In these circumstances, we are unable to hold that the High Court committed any error in dismissing the appeal summarily. Of course, it would have been better in this case if the High Court, when dismissing the appeal, had dealt with each of the points urged before to by learned counsel who represented the appellant before that Court separately and given reasons for holding that none of those reasons given justified the course of sending for the record, giving notice to the State, and hearing the appeal on merits. The appeal fails an is dismissed.
Appeal dismissed


Kavita w/o Sunder Shankardas Devidasani and another v State of Maharashtra and Others
Supreme Court of India

28 July 1981
Writ Petition (Criminal) No. 2690 of 1981. (Under article 32 of the Constitution of India) AND Writ Petition (Criminal) No. 3241 of 1981. (Under article 32 of the Constitution of India)
The Judgment was delivered by: O. Chinnappa Reddy, J.
1.  These two Writ Petitions (Criminal) may be disposed of by a single judgment as some of the questions raised are common to both. To begin with, we may refer to the facts in Writ Petition (Criminal) No. 2690 of 1981. The Government of Maharashtra, in exercise of the powers under Sec. 3(1) of the COFEPOSA, directed the detention of Sunder Shankardas Devidasani by an order dated March 9, 1981, with a view to prevent him from smuggling goods and abetting the smuggling of goods. The grounds of detention, also of the same date, were duly served on the detenu. The detenu made a representation on April 14, 1981 and this was rejected by the Government on April 25, 1981. A further representation made by the detenu on April 25, 1981 was also rejected on May 2, 1981. In the mean-time the Advisory Board met on April 29, 1981 and considered the case of the detenu. By a letter dated May 6, 1981 the detenu was informed by the Advisory Board that the Board had reported to the Government of Maharashtra advising them that there was sufficient material to justify his detention.
2.  In this application for the issue of a Writ of Habeas Corpus, the first submission of Shri Jethmalani, learned counsel for the detenu, was that although it was the Government that was required by Sec. 8(b) of the COFEPOSA to make the reference to the Advisory Board, in the instant case, it was not the Government but one of its subordinate officers that had made the reference. There was thus, according to Shri Jethmalani, a departure from the prescribed procedural requirement and for that reason the continued detention of the detenu for any period longer than five weeks mentioned in Sec 8(b) was illegal. Shri Jethmalani's contention was that Sec. 8 (b) required the Government to make a reference to the Advisory Board within five weeks from the date of detention and this meant that the Government had first to decide that it was necessary to detain the person for more than five weeks and then to forward the reference to the Advisory Board. The learned counsel would have it that the making of a reference to the Advisory Board necessitated a decision to detain the detenu for more than five weeks and this decision could be taken by the Government only and none else.
3.  We are unable to agree with the submission of Shri Jethmalani. Art. 22 (4) (a) of the Constitution prescribes that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. Art. 22 (7) (c) empowers Parliament, by law, to prescribe the procedure to be followed by an Advisory Board in an enquiry under Art. 22 (4) (a). Sec. 3 (1) of the COFEPOSA authorises the Central Government, the State Government an officer of Central Government, not below the rank of a Joint Secretary specially empowered in that behalf, or an Officer of a State Government not below the rank of a Secretary specially empowered in that behalf to make an order directing that a person be detained, if satisfied, with respect to that person, that it is necessary to detain him with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling goods, etc. etc. Sec. 3 (3) provides for the communication of the grounds of detention to the detenu to enable him to make a representation. The communication has to be ordinarily not later than five days of the date of detention though in exceptional circumstances, for reasons to be recorded in writing, it may be fifteen days.
4.  Sec. 8 provides for the Constitution of Advisory Boards and the procedure to be followed by them. Sec. 8 (b) obliges the appropriate Government, within five weeks from the date of detention of a person under a detention order, to make a reference in respect of the detention to the Advisory Board to enable the Advisory Board to make the report under Art. 22 (4) (e) of the Constitution. Sec. 8 (c) prescribes the procedure to be followed by the Advisory Board and requires the Advisory Board to submit its report within eleven weeks from the date of detention of the person concerned. Sec, 8 (f) stipulates that the appropriate Government shall revoke the detention order and cause the person to be released forthwith if the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned.
5.  If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. Sec. 11 empowers the State Government to revoke an order of detention made by an Officer of the State Government, and the Central Government to revoke an order of detention made by a State Government, an officer of a State Government or an Officer of the Central Government. The power of the State Government and the Central Government, under Sec. 11 of the COFEPOSA, to revoke orders of detention is in addition to the power under Sec. 21 of the General Clauses Act to revoke their own orders.
6.  The first important factor to be noticed here is that the period for which a person is to be detained under the COFEPOSA is not to be determined and specified at the time of making the original order of detention under Sec. 3(1). It has to be determined and specified at the time of confirming the order of detention under Sec. 8 (f), after receiving the report of the Advisory Board. The second factor of importance which calls for attention is that while an order of detention may be made by the State Government, the Central Government or an Officer of either Government specially empowered in that behalf, an order of detention may only be confirmed by the appropriate Government. Keeping in mind these two factors, we may now examine the time- scheme under the COFEPOSA. First the detaining authority, who may be the Central Government, the State Government or an Officer of either Government, specially empowered in that behalf, must be satisfied that it is necessary to detain a person with a view to preventing him from acting in a certain manner or doing certain things, and if so, satisfied, an order of detention may be made (Sec. 3 (1), COFEPOSA).
7.  The order of detention has not to specify the proposed period of detention at that stage. Within five days of the detention, the detenu is required to be furnished with the grounds of detention so as to enable him to make a representation to the detaining authority (Art. 22(5) of the Constitution and Sec. 3(3), COFEPOSA). Thereafter, within three months from the date of detention, the Advisory Board has to report the sufficiency of cause for such detention. This is a constitutional mandate (Art. 22(4) of the Constitution). In order to enable the Advisory Board to discharge its constitutional obligation, the Government is required to make a reference to the Advisory Board within five weeks from the date of detention (Sec. 8(b) of COFEPOSA). The Advisory Board in its turn is charged with the task of submitting a report within eleven weeks from the date of detention, specifying its opinion as to whether or not there is sufficient cause for the detention of the person concerned (Sec. 8(c), COFEPOSA). Quite obviously the period of eleven weeks from the date of detention prescribed for the submission of the report of the Advisory Board is to enable compliance with the Constitutional time-limit of three months. On receipt of the report the Government has to revoke the detention, if the Board has reported that there is no sufficient cause for the detention or, to confirm the order of detention and specify the period of detention if the Board has reported that there is sufficient cause for the detention (Sec. 8(f) COFEPOSA).
8.  In the meanwhile, at any time, the Central Government in any case, and the State Government if the order of detention was made by the State Government or by an Officer of the State Government, are entitled to revoke the order of detention. Thus there is no Constitutional or Statutory obligation on anyone, until after the report of the Advisory Board is received to decide finally or tentatively upon the period of detention. The initial compulsion on the detaining authority before making an order of detention is to arrive at the satisfaction that it is necessary to detain the person concerned with a view to preventing him from acting in a certain manner or with a view to preventing him from committing certain acts. The obligation to specify the period of detention is upon the appropriate Government and that has to be done at the final stage, after consideration of the report of the Advisory Board. There is no intermediate stage at which any tentative conclusion is to be arrived at by the Government regarding the period of detention though, at any and every stage, the Government has the full liberty to revoke the order of detention. We are, therefore, of the view that the act of making a reference to the Advisory Board is a mechanical or ministerial act involving no exercise of discretion, though of course the Government is at that stage, as at all other stages, at liberty to revoke the order of detention. The prescription of five weeks in Sec. 8(b) of the COFEPOSA for the making of a reference to the Advisory Board is with a view to enable the fulfilment of the Constitutional requirement of Art. 22(4) and not with a view to imposing an obligation upon the Government to consider the question of the length of detention and arrive at a tentative conclusion even at that stage. We, therefore, reject the first submission of Shri Jethmalani.
9.  The second submission of the learned counsel for the detenu was that the representation was disposed of by the Minister of State, Home Affairs, Government of Maharashtra without any authority to do so. It is somewhat strange that this contention should have been raised before us. We understand that this very contention was previously raised in another Writ Petition and that the relevant standing order was produced before the Court at the hearing of the Writ Petition and that it was also shown to the learned counsel. The standing order is made by Shri A.R. Antulay, Chief Minister of Maharashtra and Minister for Home and it directs allotment of the business appertaining to "All cases of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Maharashtra Detention Order, 1974 and all other matters arising under the provisions of the said Act and the said order and any other orders issued under this Act, except " (We are not concerned with the exceptions) to the Minister of State for Home, Shri Abhey Singh Maharaj Raje Bhosale.
10.  Rule 6 of the Maharashtra Govt. Rules of Business made by the Governor of Maharashtra in exercise of the powers conferred by Art. 166 (2) and (3) of the Constitution provides that the Chief Minister and a Minister in consultation with the Chief Minister may allot to a Minister of State or a Deputy Minister any business appertaining to a Department or a part of a Department. It is, therefore, clear that the Minister of State, Home Affairs, Government of Maharashtra was entitled to deal with the representation of the detenu. It was suggested that it would have been more appropriate if the representation had been considered by the very individual who had exercised his mind at the initial stage of making the order of detention, namely the Secretary to the Government, Shri Samant. There is no substance in this suggestion. The order of detention was not made by Shri Samant as an Officer of the State Government specially empowered in that behalf but by the State Government itself acting through the instrumentality of Shri Samant, a Secretary to Government authorised to so act for the Government under the Rules of Business. Governmental business can never get through if the same individual has to act for the Government at every stage of a proceeding or transaction, however, advantageous it may be to do so. Nor can it be said that it would be to the advantage of the detenu to have the matter dealt with by the same individual at all stages. It may perhaps be to the advantage of the detenu if fresh minds are brought to bear upon the question at different stages. It is unnecessary to pursue the matter any further as we find no constitutional or legal infirmity in the representation having been considered by the Minister of State, Home Affairs, Government of Maharashtra.
11.  The learned counsel next submitted that the detenu was not permitted to be represented by a lawyer despite his request that he might be allowed to engage the services of a lawyer before the Advisory Board. In his representation to the Government the detenu did make a request to be permitted to be represented by a lawyer. The Government informed him that under the provisions of Sec. 8(e) of the COFEPOSA he was not entitled to be represented by a lawyer before the Advisory Board and therefore, it was not possible to grant his request. The complaint of the learned counsel for the detenu was that while a detenu may not be entitled, as of right, to be represented by a lawyer before the Advisory Board, there was no bar against a lawyer being permitted to appear before the Advisory Board and therefore, the request of a detenu to be represented by a lawyer had to be considered on the merits of each individual case. This the learned counsel submitted had not been done in the present case and the detenu's request was never placed before the Advisory Board.
12.  It is true that while Sec. 8(e) disentitles a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the services of a lawyer. We agree that the importance of legal assistance can never be over-stated and as often than nota dequate legal assistance may be essential for the protection of the Fundamental Right to life and personal liberty guaranteed by Art. 21 of the Constitution and the Right to be heard given to a detenu by Sec. 8(e), COFEPOSA. These rights may be jeopardised and reduced to more nothings without adequate legal assistance. That would depend on the facts of each individual case, in the light of the intricacies of the problems involved and other relevant factors. Therefore, where a detenu makes a request for legal assistance, his request would have to be considered on its own merit in each individual case. In the present case, the Government merely informed the detenu that he had no statutory right to be represented by a lawyer before the Advisory Board. Since it was for the Advisory Board and not for the Government to afford legal assistance to the detenu the latter, when he was produced before the Advisory Board, could have; if he was so minded, made a request to the Advisory Board for permission to be represented by a lawyer. He preferred not to do so. In the special circumstances of the present case we are not prepared to hold that the detenu was wrongfully denied the assistance of counsel so as to
lead to the conclusion that procedural fairness, a part of the Fundamental Right guaranteed by Art. 21 of the Constitution was denied to him.
13.  The last submission of the learned counsel was that there was a non application of the mind of the detaining authority, first in making the order of detention and later in considering the representation of the detenu. It was contended that the recital in the grounds of detention that detenu had made a statement that certain documents received at the detenu's residence at the time of search pertained to the order dated 29.11.1980 of Shri Abdullahi Amin, Attache, Sudan Consulate was not correct and that the detenu's statement contained no such recital. It was said that the grounds of detention read as if the detenu had admitted the existence of the order dated 29.11.80 in the statement made by him. We do not find any substance in this submission. A reading of the document leaves no such impression. All that was said was that the documents received by post at the time of search pertained to an order dated 29.11.80 and not that there was admission by the detenu that there was ever an order dated 29.11.80. It was then contended that in the course of communication of the grounds of detention the detenu was informed thatit was against the public interest to disclose the source of intelligence and the further facts contained therein. The actual sentence by which privilege was claimed against disclosure was as follows:
"I consider it against public interest to disclose the source of intelligence referred to in the grounds furnished above and further consider it against public interest to disclose further facts contained therein". The argument was that the grounds did not state that the Government considered it against public interest to disclose the source of intelligence and the further facts contained therein but that it was the Assistant Secretary to the Government of Maharashtra who signed at the bottom of the grounds that though it was against the public interest to disclose the source of intelligence and the facts contained therein. The emphasis was on the use of the first person by the Assistant Secretary. This was explained by the respondents as a Clerical mistake and was later rectified by making suitable corrections. It was contended that the discovery of the mistake and its rectification was after the Advisory Board had submitted its report, though the detenu had even earlier, raised the question that it was the Government and not the Assistant Secretary that could claim privilege. It was not brought to the notice of the Advisory Board at any time that the mistake was only clerical. We have the least hesitation in rejecting the contention. The mistake is so obviously clerical that we cannot permit the detenu to take advantage of it. In the result W.P. No. 2690/81 is dismissed.
14.  The first two questions raised in the previous Writ Petition are common to Writ Petition No. 3241 of 1981 also. An additional point was sought to be raised that the copy of a certain document was not supplied to the detenu but after verification the point was abandoned by the learned counsel. This Writ Petition is also dismissed.
Petition dismissed.


Smt. Masuma v State of Maharashtra and Another
Supreme Court of India

12 August 1981
Writ Petition Criminal No. 1892 of 1981
The Judgment was delivered by: P. N. Bhagwati, J.
1. This is a petition for a writ of Habeas Corpus for securing the release of one Hasnain Mukhtar Hussain Lakdawala (hereinafter referred to as the detenu) who has been detained by the Government of Maharashtra under an order of detention dated 31st December 1980 made in exercise of the powers conferred u/s. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as the COFEPOSA). This order of detention though dated 31st December 1980 was served on the detenu on 17th January 1981 and alongwith the order of detention, a communication, also dated 31st December 1980, was served on the detenu containing the grounds of detention. The Government of Maharashtra also served on the detenu at the same time a letter dated 7th January 1981 enclosing copies of the documents relied upon in the grounds of detention.
2. It appears that on 6th February 1981 the advocate of the detenu addressed a letter to the Superintendent, Bombay Central Prison where the detenu was then confined and alongwith this letter he forwarded nine copies of the representation which was to be submitted by the detenu to the Government of Maharashtra against the order of detention. This letter was delivered by the authorities in charge of the Bombay Central Prison to the detenu on 6th February 1981, but on the same day the detenu was shifted from the Bombay Central Prison to Nasik Road Central Prison and the nine copies of the representation were therefore carried by the detenu with him to the Nasik Road Central Prison and from there, the requisite number of copies of the representation duly signed by the detenu were forwarded to the Government of Maharashtra and the Chairman of the Advisory Board on 10th February 1981. This representation was however rejected by the Government of Maharashtra by its letter dated 25th February 1981.
3. It appears that a copy of the representation was also sent by the detenu to the Central Government and by its letter dated 26th February 1981 the Central Government too rejected the representation. In the meantime, the case of the detenu was referred to the Advisory Board and on 11th March 1981, the detenu was called for an oral hearing by the Advisory Board and at this meeting the detenu handed over to the Chairman and Members of the Advisory Board four copies of a further representation dated 11th March 1981 addressed by him jointly to the Chairman and the Members of the Advisory Board and the Government of Maharashtra praying that the Government of Maharashtra may be pleased to revoke the order of detention and set the detenu at liberty.
The Advisory Board considered the case of the detenu and by a letter dated 16th March 1981, the Secretary of the Advisory Board intimated to the advocate of the detenu that the Advisory Board had by its report dated 12th March 1981 advised the Government of Maharashtra that there was sufficient cause for the detention of the detenu. The State Government thereafter in exercise of the powers conferred u/cl. (f) of s. 8 passed an order dated 23rd March 1981 reciting the opinion given by the Advisory Board and confirming the order of the detention. The petitioner who is the wife of the detenu thereupon preferred the present writ petition challenging the order of detention made by the Government of Maharashtra as also the continuance of the detention under the subsequent order dated 23rd March 1981.
4. There were several grounds urged on behalf of the petitioner in support of the petition and each one of them was seriously pressed before us by Mr. Jethmalani on behalf of the petitioner. The first ground was that the order of detention was made by one P. V. Nayak, Secretary to Government, Revenue and Forest Department and Ex-officio Secretary to Government, Home Department while the representation made by the detenu against the order of detention was considered and disposed of by the Minister of State for Home Affairs not by P. V. Nayak and hence there was no effective consideration of the representation of the detenu as required by law.
The argument on behalf of the detenu was that the representation of a detenu must be considered by the same person who has passed the order of detention and since in the present case, the representation was considered by a different person, it was not a valid and proper consideration of the representation and the continuance of the detention of the detenu was therefore invalid There was also another related ground urged on behalf of the petitioner and it was that the Minister of State for Home affairs who considered the representation of the detenu was not competent to do so, both by reason of lack of authority as also in view of the fact that the case had already been dealt with by P. V. Nayak.
5. We do not think there is any substance in either of these two grounds. If we look at the order of the detention, it is clear that it was not made by P. V. Nayak in his indi-vidual capacity as an officer of the State Government but it was made by him as representing the State Government. It was the State Government which made the order of detention acting through the instrumentality of P. V. Nayak, Secretary to Government who was authorised so to act for and on behalf of and in the name of the State Government under the Rules of Business. Rule 15 of the Rules of Business of the Government of Maharashtra provided that those Rules may "to such extent as necessary be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister" and in exercise of the power conferred under this Rule, the Governor of Maharashtra issued Instructions for the more convenient transaction of the business of the Government. Clauses (4), (5) and (6) of these Instructions as they stood at the material time provided inter alia as under:
"4. Except as otherwise provided in these Instructions, cases shall ordinarily be disposed of by, or under the authority, of the Minister-in- charge, who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the Department, Copies of such standing orders shall be sent to the Governor and the Chief Minister."
"5 Each Minister shall arrange with the Secretary of the Department what matters or classes of matters are to be brought to his personal notice."
"6.Except as otherwise provided in these instructions, cases shall be submitted by the Secretary in the Department to which the case belongs to the Minister-in-charge."
6. Pursuant to the instructions contained in these clauses, Shri A. R. Antulay, Chief Minister of Maharashtra and Minister incharge of the Home Department, issued a Standing order dated 18th July 1980 directing that cases under sub-section (I) of s. 3 of the Cofeposa Act need not be submitted to him or to the Minister of State for the Home Department and that such cases may be allotted to and disposed of by any of the six officers mentioned there one of them being P. V. Nayak. On the same day, another Standing order was issued by Sh. A. R. Antulay Chief Minister of Maharashtra and Minister-in-charge of Home Department in pursuance of the provisions contained in Rule 6 of the Rules of Business, directing inter alia that all cases appertaining to the Cofeposa Act and all other matters arising under the provisions of that Act may be allotted to the Minister of State for Home Affairs. This latter Standing order provided that nothing contained in it shall affect the directions contained in the earlier Standing order issued on the same day.
It will therefore be seen that P. V. Nayak was authorised under the earlier Standing order dated 18th July 1980 to deal with and dispose of cases under sub-s. (I) of s. 3 of the COFEPOSA and it was in exercise of the authority thus conferred upon him that P. V. Nayak acting for the State Government made the order of detention against the assessee under sub-s. (I) of s. 3. [t was the State Government which made the order of detention and not P. V. Nayak in his individual capacity.
7. The representation made by the detenu against the order of detention was also therefore required to be considered by the State Government and either it could be disposed of by P. V. Nayak acting for the State Government under the earlier Standing order dated 18th July 1980 or the Minister of State for Home could dispose it of under the later Standing order dated 18th July 1980. Whether P. V. Nayak considered the representation and disposed it of or the Minister of State for Home did so would be immaterial, since both had authority to act for the State Government and wherever be the instrumentality, whether P. V. Nayak or the Minister of State for Home, it would be the State Government which would be considering and dealing with the representation. The only requirement of Art. 22 (5) is that the representation of the detenu must be considered by the detaining authority which in the present case is the State Government and this requirement was clearly satisfied because when the Minister of State for Home considered the representation and rejected it, he was acting for the State Government and the consideration and rejection of the representation was by the State Government.
There is no requirement express or implied in any provision of the COFEPOSA that the same person who acts for the State Government in making the order of detention must also consider the representation of the detenu. In fact, as pointed out by Chinnappa Reddy, J. in Smt. Kavita v. State of Maharashtra a Government business can never get through if the same individual has to act for the Government in every case or proceeding or transaction, however advantageous it may be to do so.
"Moreover it would really be to the advantage of the detenu if his representation is not considered by the same individual but fresh mind is brought to bear upon it. We do not therefore see any constitutional or legal infirmity in the representation having been considered by the Minister of State for Home."
8. The next contention of Mr. Jethmalani on behalf of the petitioner was that there was nothing to show that the decision to confirm the order of detention and continue the detention of the detenu was taken by the State Government as required by cl. (f) of s. 8 and hence the continuance of the detention was invalid. lt is really difficult to appreciate this contention urged on behalf of the petitioner. It is clear from the annexures to the writ petition that after receipt of the opinion of the Advisory Board that there was in its opinion sufficient cause for the detention of the detenu, the State Government in exercise of the powers conferred u/cl. (f) of section 8, made an order dated 23rd March 1981 confirming the detention order and continuing the detention of the detenu.
This order was expressed to be made "By order and in the name of the Governor of Maharashtra" and was authenticated by the Under Secretary to the Government of Maharashtra Home Department. It recited in so many terms that it was the State Government which was confirming the order of detention and continuing the detention of the detenu and no material has been placed before us on behalf of the detenu to displace the correctness of this recital. There can therefore be no doubt that the ord r confirming the detention of the detenu was made by the State Government. Moreover, we have the statement on oath made by C. V. Karnik, Assistant Secretary to the Government of Maharashtra, Home Department that "the Government of Maharashtra thereafter u/cl. (f) of s. 8 of the said Act confirmed the said detention order by an order dated 23rd March 1981."
9. It was then contended by Mr. Jethmalani on behalf of the petitioner that u/cl. (b) of s. 8 it as the obligation of the State Government to make a reference to the Advisory Board A within five weeks from the date of detention of the detenu and there was nothing to show that the State Government had made such a reference to the Advisory Board.
10. This contention is also without substance and totally futile, because it is clear from the statement of C. V. Karnik in his affidavit that it was the State Government which referred the case of the detenu to the Advisory Board u/cl. (b) of s. 8 and no material has been placed before us on behalf of the detenu controverting the correctness of this statement. Mr. Jethmalani also raised another contention in this connection and it was that, before making a reference to the Advisory Board, the State Government had not applied its mind to the question whether it was necessary to detain the detenu for a period longer than three months and this non application of mind vitiated the reference to the Advisory Board and the subsequent order of confirmation following upon it.
The argument of Mr. Jethmalani was that it was only if the State Government decided to detain a person for a period longer than three months that it was required to refer the case of such person to the Advisory Board and it was therefore necessary for the State Government in every case of detention to apply its mind and consider at least before making a reference to the Advisory Board whether the detention was to be continued for a period longer than three months. We are of the view that this argument is not well founded and must be rejected.
11. It is clear that u/cl. (4) of Art. 22 no law providing for preventive detention can authorise the detention of a person for a period longer than three months unless the Advisory Board has reported before the expiration of the period of three months that there is in its opinion sufficient cause for such detention. This requirement of cl. (4) of Art. 22 is satisfied by the enactment of s. 8 iq the COFEPOSA. s. 8 cl. (b) provides that in case of every detention the appropriate Government shall, within five weeks from the date of detention, make a reference to the Advisory Board and the Advisory Board is required to make a report as to whether or not there is sufficient cause for the detention of the detenu and submit the same to the appropriate Government within eleven weeks from the date of detention of the detenu.
The period of eleven weeks from the date of detention is prescribed for the submission of the report obviously because u/cl. (4) of Art. 22 no detention can lawfully continue for a period longer than three months unless the Advisory Board has reported before the expiration of the period of three months that there is in its opinion sufficient cause for such detention. But one thing is clear that this provision for reference to the Advisory Board is not confined to cases where the detaining authority has already come to a decision that the detention shall be continued for a period longer than three months.
12. It applies equally where the detaining authority has not yet made up its mind as to how long the detention shall continue or even where the detention is to continue for a period of three months or less. Whenever any order of detention is made, whether the detention is to continue for a period longer than three months or a period of three months or less or the detaining authority has not yet applied its mind and determined how long the detention shall be continued, the appropriate Government is bound within five weeks from the date of detention to make a reference to the Advisory Board and if it fails to do so, the continuance of the detention after the expiration of the period of five weeks would be rendered invalid.
The Advisory Board is, in every such case where a reference is made, required to submit its report within eleven weeks from the date of detention and if it reports that there is in its opinion no sufficient cause for detention the detaining authority is bound to release the detenu forthwith, even though a period of three months may not have expired since the date of detention.
13. This is a safeguard provided by the COFEPOSA ACT, which is applicable in all cases of detention, whether the detention is to be continued beyond a period of three months or not and whether or not the detaining authority has applied its mind and determined, before making a reference to the Advisory Board, as to what shall be the period of detention. We are clearly of the view that it is not at all necessary for the detaining authority to apply its mind and consider at the time of passing the order of detention or before making a reference to the Advisory Board, as to what shall be the period of detention and whether the detention is to be continued beyond a period of three months or not.
The only inhibition on the detaining authority is that it cannot lawfully continue the detention for a period longer than three months unless the Advisory Board has, before the expiration of the period of three months, reported that three is in its opinion sufficient cause for such detention. We must therefore hold that the State Government did not commit any breach of its constitutional or legal obligation in making a reference to the Advisory Board without first determining the period for which the detenu was to be detained.
14. Mr. Jethmalani on behalf of the petitioner lastly submitted that there was unreasonable delay on the part of the State Government in considering the representation of the detenu and this delay was fatal to the validity of the continuance of the detention. This contention is also without substance and must be rejected. It is no doubt true that the advocate of the detenu sent nine copies of the representation to the detenu on 6th February, 1981 and these nine copies came to be forwarded to various authorities only on 10th February, 1981 but the affidavit of B.B. Mulay, Jailer attached to the Bombay Central Prison, shows that these nine copies were handed over by B. B. Mulay to the detenu as soon as they were received by him from the emissary of the detenu's advocate and the detenu got B these documents on the same day, namely 6th February, 1981. B. B. Mulay asked the detenu to sign the representation and hand over the same for being forwarded to the State Government but the detenu stated that he would sign the representation only after going through it and he therefore carried the nine copies of the representation with him to the Nasik Central Jail where he was shifted in the evening of 6th February, 1981 and it was only on 10th February, 1981 that he signed all the nine copies of the representation and handed over the same to C. P. Gaekwad, Jailer, In-charge of the Nasik Central Prison and according to the affidavit of C.P. Gaekwad, these nine copies of the representation duly signed by the detenu were forwarded to the respective authorities on the same day. There was therefore no un-reasonable delay on the part of the State authorities at this stage.
15. Proceeding further we find that the representation sent by the detenu was received in the Home Department of the State Government on 13th February, 1981 and on the same day, a letter was addressed by the Home Department to the Collector of Customs calling for his remarks in regard to the various allegations contained in the representation and para-wise comments were received from the Customs Department on 21st February, 1981. Now, it cannot be said that the Government acted unreasonably in forwarding the representation of the detenu to the Collector of Customs and waiting for the para-wise comments of the Customs Authorities, since there were various allegations made in the representation which called for the comments of the Customs Department and without such comments, the State Government could not fairly and properly consider the representation of the detenu.
It may be noted that the communication from the Home Department dated 13th February, 1981 could not have reached the Collector of Customs until 16th February, 1981 because 14th and 15th February were Saturday and Sunday and therefore closed holidays. The reply of the Customs Authorities which was received on 21st February 1981 must have been despatched on 20th February and therefore the Customs Authorities did not have more than four or five days within which to give their comments in regard to the various allegations contained in the representation of the detenu and this time taken by the Customs Authorities cannot be regarded as unreasonable. We do not think that in these circumstances the State Government could be said to be guilty of any unreasonable delay so far as the period between 13th February and 21st February, 1981 is concerned.
16. There was also no unreasonable delay after 21st February, 1981. The affidavit of C. V. Karnik shows that the representation of the detenu was immediately put up before the Minister of State for Home for consideration, in the light of the comments received from the Customs Authorities and the representation was considered and rejected by the Minister of State for Home on 23rd February, 1981 and necessary intimation to that effect was conveyed to the detenu by a letter dated 25th February 1981. It is impossible to hold in these circumstances that there was any unreasonable delay on the part of the State Government in considering the representation of the detenu and this contention of Mr. Jethmalani must be rejected.
17. These were all the contentions urged on behalf of the petitioner and since there is no substance in them, the petition fails and is dismissed.
Petition dismissed.


Johney D Couto v State Of Tamil Nadu
Supreme Court of India

4 November 1987
Criminal Appeal No.232 of 1987
The Judgment was delivered by: Rangnath Misra, J.
1.  This appeal is by special leave. Appellant challenged his order of detention u/s. 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA for short) by filing a writ petition before the High Court and that application, has been dismissed. As many as six contentions had been advanced before the High Court.
2. Though raised in the writ petition, the point relating to denial of a fair hearing before the Advisory Board has not been noticed by the High Court as a contention on behalf of the appellant, but counsel for the appellant has raised the same point before this Court and since the facts on which the ground is raised are not in dispute we find no objection to entertaining this contention now specifically raised in this appeal.
3.  The hearing of the representation of the appellant by the Advisory Board was fixed for 25th November, 1986. On that day the appellant had specifically requested the Advisory Board to permit one Mr. Sundararajan, a retired Assistant Collector of Central Excise to assist him as a friend. The Board, as appears from the counter affidavit filed in this Court, turned down the request. The counter affidavit states:-
"The Advisory Board has given its finding in rejecting the detenu's request for assistance of a friend, namely, Mr. Sundararajan in paragraphs 2 and 3 of its report sent to the Government. The Advisory Board has stated in paragraph 2 that the detenu filed a petition requesting the assistance of Mr. Sundararajan, a retired Assistant Collector of Customs.
The Advisory Board has stated in paragraph 3 that Mr. Sundararajan has appeared before it and had stated that he was formerly employed in the customs department and he would like to assist the detenu. In the same paragraph, the Advisory Board has also stated that it was admitted by Mr. Sunderarajan before the Advisory Board that he is not a friend of the detenu and because of his professional experience he liked to help the detenu. In the same paragraph the Advisory Board has given its findings and reasons for rejecting the request of the detenu on the ground that Mr. Sundararajan not being a friend of the detenu, the Advisory Board did not consider it proper to allow him to represent the case of the detenu."
4.  It is thus clear from the allegations in the special leave petition and the counter affidavit that the appellant had requested the Board to allow him the assistance of a friend at the hearing and for the reasons and in the manner indicated in the counter affidavit the request was turned down.
5.  In paragraph 9 of the special leave petition the appellant had alleged that on 25th November, 1986, the detaining authority was represented by customs officers of the rank of Deputy Collector of Customs and Superintendent. In the counter affidavit filed before this Court there has been no denial of this fact.
6. Learned counsel appearing for the respondent did not dispute the allegation on the basis of the record as also the papers available with him that the department was represented at the hearing before the Advisory Board by a Deputy Collector of Customs. The position, therefore, is that on 25th November, 1986 while the detaining authority was assisted by a Deputy Collector and a Superintendent of Central Excise the detent was denied the assistance of a retired Assistant Collector of Central Excise. On the recommendation of the Advisory Board, the detention order was confirmed.
7.  The appellant is a clearing and forwarding agent at Madras and is said to be a young man aged around 26 or 27 years. The case before the Board involved certain facets which require acquaintance with the legal provisions and the procedure and practice adopted by the customs authorities.
8. It is the case of the appellant that he was not very much acquainted with them and that is why he had sought the assistance of Sundararajan and even brought him before the Board that day. In the facts of the case we are not in a position to reject the contention that if Sundararajan had been permitted to assist the appellant his case would have been better placed before the Advisory Board.
In the premises indicated above, two aspects have to be examined-
(1) Whether the appellant was entitled to the assistance of Sundararajan as a friend; and
(2) Whether when the detaining authority was assisted by a Deputy Collector and a Superintendent of Central Excise, was the request of the appellant to be assisted by a retired Assistant Collector of Central Excise unjust and should the same had been refused?
9. A two-Judge Bench of this Court in Nand Lal Bajaj v. State of Punjab, [ 1982] 1 SCR 718 1981 Indlaw SC 92 was considering the question of legal assistance for the detenu before the Advisory Board. It referred to the decision of this Court in the case of Smt. Kavita v. State of Maharashtra, [1982] 1 SCR 138 1981 Indlaw SC 242 where Chinnappa Reddy, J. made the following observation:
"It is true that while s. 8 (e) disentitles a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the services of a lawyer."
The learned Judge further stated:-
"As often than not adequate legal assistance may be essential for the protection of the Fundamental Right to life and personal liberty guaranteed by Art. 21 of theConstitution and the right to be heard given to a detenu by s. 8(e), COFEPOSA  ACT."
It was further observed by Reddy, J. :-
"Therefore, where a detenu makes a request for legal assistance, his request would have to be considered on its own merit in each individual case. In the present case, the Government merely informed the detenu that he had no statutory right to be represented by a lawyer before the Advisory Board. Since it was for the Advisory Board and not for the Government to afford legal assistance to the detenu the latter, when he was produced before the Advisory Board, could have, if he was so minded, made a request to the Advisory Board for permission to be represented by a lawyer." Sen, J. in Nand Lal's case 1981 Indlaw SC 92 (supra) observed:
While the detenu was not afforded legal assistance, the detaining authority was allowed to be represented by counsel. It is quite clear upon the terms of sub-s. (4) of s. 11 of the Act that the detenu had no right to legal assistance in the proceedings before the Advisory Board, but it did not preclude the Board to allow such assistance to detenu, when it allowed the State to be represented by an array of lawyers."
10.  A Constitution Bench of this Court in A.K. Roy etc. v. Union of India & Anr., [1982] 2 SCR 272 1981 Indlaw SC 381 dealt with this aspect. Chandrachud, CJ, speaking for the Court stated:
"We must therefore, held, regretfully though, that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board. It is, however, necessary to add an important caveat. The reason behind the provisions contained in Art. 22(4)(b) of theConstitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party. the Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu.
In any case, that is not what theConstitution says and it would be wholly inappropriate to read and such meaning into the provisions of Art. 22. Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14, if a similar facility is denied to the detenu. We must therefore make it clear that if the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board the detenu must be allowed the facility of appearing before the Board through a legal practitioner.
We are informed that officers of the Government in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders. If that be so, we must clarify that the Boards should not permit the authorities to do indirectly what they cannot do directly; and no one should be enabled to take-shelter behind the excuse that such officers are not "legal practitioners" or legal advisers. Regard must be had to the substance and not to the form since, especially, in matters like the proceedings of Advisory Boards, whosoever assist or advises on facts of law must be deemed to be in the position of a legal adviser.
We do hope that Advisory Boards will take care to ensure that the provisions of Art. 14 are not violated in any manner in the proceedings before them"
11.  Learned counsel for the respondent does not dispute that what has been stated above is the law applicable to the facts of this case. We have already found that the detaining authority had the assistance of the Deputy Collector of Central Excise and a Superintendent of Central Excise. In the words of Chandrachud, CJ, "they play the role of legal advisers. The Board had no justification to refuse assistance of Sundararajan to the appellant in such circumstances.
12.  The rule in A. K. Roy's case 1981 Indlaw SC 381 (supra) made it clear that the detenu was entitled to the assistance of a 'friend'. The word 'friend' used there was obviously not intended to carry the meaning of the term in common parlance.
13. One of the meanings of the word 'friend', according to the Collins English Dictionary is "an ally in a fight or cause; supporter". The term 'friend' used in the judgments of this Court was more in this sense than meaning 'a person known well to another and regarded with liking, affection and loyalty.' A person not being a friend in the normal sense could be picked up for rendering assistance within the frame of the law as settled by this Court.
14.  The Advisory Board has, of course, to be careful in permitting assistance of a friend in order to ensure due observance of the policy of law that a detenu is not entitled to representation through a lawyer.
15. As has been indicated by this Court, what cannot be permitted directly should not be allowed to be done in an indirect way. Sundararajan, in this view of the matter, was perhaps a friend prepared to assist the detenu before the Advisory Board and the refusal of such assistance to the appellant was not justified.
16. It is not for this Court to examine and assess what prejudice has been caused to the appellant on account of such denial. This Court has reiterated the position that matters relating to preventive detention are strict proceedings and warrant full compliance with the requirements of law.
17.  In view of the position of law and the facts of the case, we must hold that the refusal by the Advisory Board to permit the appellant to be assisted by Sundararajan as a friend was bad and continued detention of the appellant became vitiated. Accordingly, this appeal is allowed and the order of detention is quashed. The appellant is directed to be set at liberty forthwith.
Appeal allowed.