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chandramauli kr. prasad, j. criminal appeal no. 22 - 23 of 2014 ( @ special leave petition ( crl. ) nos. 3810 - 3811 of 2012 ) the state of tamil nadu aggrieved by the order dated 10th of december, 2010 passed by the madras high court in criminal r. c. no. 528 of 2009 and criminal m. p. ( md ) no. 1 of 2009, setting aside the order dated 25th of september, 2009 passed by the learned chief judicial magistrate - cum - special judge, nagercoil ( hereinafter referred to as the special judge ), whereby he refused to discharge the respondents, has preferred these special leave petitions. leave granted. short facts giving rise to the present appeals are that respondent no. 1, n. suresh rajan, during the period from 13. 05. 1996 to 14. 05. 2001, was a member of the tamil nadu legislative assembly as also a state minister of tourism. respondent no. 2, k. neelkanda pillai is his father and respondent no. 3, r. rajam, his mother. on the basis of an information that n. suresh rajan, during his tenure as the minister of tourism, had acquired and was in possession of pecuniary resources and properties in his name and in the names of his father and mother, disproportionate to his known sources of income, crime no. 7 of 2002 was registered at kanyakumari vigilance and anti corruption department on 14th of march, 2002 against the minister n. suresh rajan, his father, mother, elder sister and his bother - in - law. during the course of the investigation, the investigating officer collected and gathered informations with regard to the property and pecuniary resources in possession of n. suresh rajan during his tenure as the minister, in his name and in the name of others. on computation of the income of the minister from his known sources and also expenditure incurred by him, it was found that the properties owned and possessed by him are disproportionate to his known sources of income to the tune of rs. 23, 77, 950. 94. the investigating officer not only examined the accused minister but also his father and mother as also his sister and the brother - in - law. ultimately, the investigating agency came to the conclusion that during the check period, respondent no. 1, n. sures

##h rajan has acquired and was in possession of pecuniary resources and properties in his name and in the names of his father, k. neelakanda pillai ( respondent no. 2 ) and mother r. rajam ( respondent no. 3 ) and his wife d. s. bharathi for total value of rs. 17, 58, 412. 47. the investigating officer also came to the conclusion that minister s father and mother never had any independent source of income commensurate with the property and pecuniary resources found acquired in their names. accordingly, the investigating officer submitted the charge - sheet dated 4th of july, 2003 against respondent no. 1, the minister and his father ( respondent no. 2 ) and mother ( respondent no. 3 ) respectively, alleging commission of an offence under section 109 of the indian penal code and section 13 ( 2 ) read with section 13 ( 1 ) ( e ) of the prevention of corruption act. respondents filed application dated 5th of december, 2003 under section 239 of the code of criminal procedure, 1973 ( hereinafter referred to as the code ), seeking their discharge. the special judge, by its order dated 25th of september, 2009 rejected their prayer. while doing so, the special judge observed as follows : the high court while passing the impugned order heavily relied on its earlier judgment in the case of state by deputy superintendent of police, vigilance and anti corruption cuddalore detachment v. k. ponumudi & ors. ( 2007 - 1mlj - crl. - 100 ), the validity whereof is also under consideration in the connected appeals. the high court while allowing the criminal revision observed as follows : criminal appeal no. 26 - 38 of 2014 ( @ special leave petition ( crl. ) nos. 134 - 146 of 2013 ) these special leave petitions are barred by limitation. there is delay of 1954 days in filing the petitions and 217 days in refiling the same. applications have been filed for condoning the delay in filing and refiling the special leave petitions. mr. ranjit kumar, learned senior counsel for the petitioner submits that the delay in filing the special leave petitions has occurred as the public prosecutor earlier gave an opinion that it is not a fit case in which special leave petitions deserve to be filed. the government accepted the opinion and decided not to file the special leave petitions. it is pointed out that the very government in which one of the accused was a minister had taken the

aforesaid decision not to file special leave petitions. however, after the change of the government, opinion was sought from the advocate general, who opined that it is fit case in which the order impugned deserves to be challenged. accordingly, it is submitted that the cause shown is sufficient to condone the delay. mr. soli j. sorabjee, learned senior counsel appearing for the respondents, however, submits that mere change of government would not be sufficient to condone the inordinate delay. he submits that with the change of the government, many issues which have attained finality would be reopened after long delay, which should not be allowed. according to him, condonation of huge delay on the ground that the successor government, which belongs to a different political party, had taken the decision to file the special leave petitions would be setting a very dangerous precedent and it would lead to miscarriage of justice. he emphasizes that there is a life span for every legal remedy and condonation of delay is an exception. reliance has been placed on a decision of this court in the case of postmaster general v. living media india ltd., ( 2012 ) 3 scc 563, and our attention has been drawn to paragraph 29 of the judgment, which reads as follows : in these petitions the state of tamil nadu impugns the order dated 11th of august, 2006 passed by the madras high court whereby the revision petitions filed against the order of discharge dated 21st of july, 2004 passed by the special judge / chief judicial magistrate, villupuram ( hereinafter referred to as the special judge ), in the special case no. 7 of 2003, have been dismissed. leave granted. shorn of unnecessary details, facts giving rise to the present appeals are that k. ponumudi, respondent no. 1 herein, happened to be a member of the state legislative assembly and a state minister in the tamil nadu government during the check period. p. visalakshi ponmudi ( respondent no. 2 ) is his wife, whereas p. saraswathi ( respondent no. 3 ) ( since deceased ) was his mother - in - law. a. manivannan ( respondent no. 4 ) and a. nandagopal ( respondent no. 5 ) ( since deceased ) are the friends of the minister ( respondent no. 1 ). respondent nos. 3 to 5 during their lifetime were trustees of one siga educational trust, villupuram. in

the present appeals, we have to examine the validity of the order of discharge passed by the special judge as affirmed by the high court. hence, we consider it unnecessary to go into the details of the case of the prosecution or the defence of the respondent at this stage. suffice it to say that, according to the prosecution, k. ponmudi ( respondent no. 1 ), as a minister of transport and a member of the tamil nadu legislative assembly during the period from 13. 05. 1996 to 30. 09. 2001, had acquired and was in possession of pecuniary resources and properties in his name and in the names of his wife and sons, which were disproportionate to his known sources of income. accordingly, crime no. 4 of 2002 was registered at cuddalore village, anti - corruption department on 14th of march, 2002 under section 109 of the indian penal code read with section 13 ( 2 ) and section 13 ( 1 ) ( e ) of the prevention of corruption act, hereinafter referred to as the act. during the course of investigation it transpired that between the period from 13. 05. 1996 to 31. 03. 2002, the minister had acquired and possessed properties at mathirimangalam, kaspakaranai, kappiampuliyur villages and other places in villupuram taluk, at vittalapuram village and other places in thindivanam taluk, at cuddalore and pondicherry towns, at chennai and trichy cities and at other places. it is alleged that respondent no. 1 - minister being a public servant committed the offence of criminal misconduct by acquiring and being in possession of pecuniary resources and properties in his name and in the names of his wife, mother - in - law and also in the name of siga educational trust, held by the other respondents on behalf of respondent no. 1, the minister, which were disproportionate to his known sources of income to the extent of rs. 3, 08, 35, 066. 97. according to the prosecution, he could not satisfactorily account for the assets and in this way, the minister had committed the offence punishable under section 13 ( 2 ) read with section 13 ( 1 ) ( e ) of the act. in the course of investigation, it further transpired that during the check period and in the places stated above, other accused abetted the minister in the commission of the offence by him. respondent no. 2

, the wife of the minister, aided in commission of the offence by holding on his behalf a substantial portion of properties and pecuniary resources in her name as well as in the name of m / s. visal expo, of which she was the sole proprietor. similarly, respondent no. 3, the mother - in - law, aided the minister by holding on his behalf a substantial portion of properties and pecuniary resources in her name as well as in the name of siga educational trust by purporting to be one of its trustees. similarly, respondent no. 4 and respondent no. 5 aided the minister and held on his behalf a substantial portion of the properties and pecuniary resources in the name of siga educational trust by purporting to be its trustees. it is relevant here to mention that during the course of investigation, the statement of all other accused were taken and in the opinion of the investigating agency, after due scrutiny of their statements and further verification, the minister was not able to satisfactorily account for the quantum of disproportionate assets. accordingly, the vigilance and anti corruption department of the state government submitted charge - sheet against the respondents under section 109 of the indian penal code and section 13 ( 2 ) read with section 13 ( 1 ) ( e ) of the act. it is relevant here to state that the offences punishable under the scheme of the act have to be tried by a special judge and he may take cognizance of the offence without commitment of the accused and the judge trying the accused is required to follow the procedure prescribed by the code for the trial of warrant cases by the magistrate. the special judge holding the trial is deemed to be a court of sessions. the respondents filed petition for discharge under section 239 of the code inter alia contending that the system which the prosecution had followed to ascertain the income of the accused is wrong. initially, the check period was from 10. 05. 1996 to 13. 09. 2001 which, during the investigation, was enlarged from 13. 05. 1996 to 31. 03. 2002. not only this, according to the accused, the income was undervalued and the expenditures exaggerated. according to respondent no. 1, the minister, income of the individual property of his wife and that of his mother - in - law and their expenditure ought not to have been shown as his property. according to him, the allegation that the properties in their names are his benami properties is wrong. it was also contended that the valuation of the properties has been arrived at

without taking into consideration the entire income and expenditure of respondent no. 1. respondents have also alleged that the investigating officer, who is the informant of the case, had acted autocratically and his action is vitiated by bias. the special judge examined all these contentions and by order dated 21st of july, 2004 discharged respondents on its finding that the investigation was not conducted properly. the special judge further held that the value of the property of respondent nos. 2 to 5 ought not to have been clubbed with that of the individual properties and income of respondent no. 1 and by doing so, the assets of respondent no. 1 cannot be said to be disproportionate to his known sources of income. on the aforesaid finding the special judge discharged all the accused. aggrieved by the same, the state of tamil nadu filed separate revision petitions and the high court, by the impugned order, has dismissed all the revision petitions. the high court, while affirming the order of discharge, held that the prosecution committed an error by adding the income of other respondents, who were assessed under the income tax act, in the income of respondent no. 1. in the opinion of the high court, an independent and unbiased scrutiny of the entire documents furnished along with the final report would not make out any ground of framing of charges against any of the accused persons. while doing so, the high court has observed as follows : they submit that at the time of consideration of an application for discharge, nothing prevents the court to sift and weigh the evidence for the purpose of ascertaining as to whether the allegations made on the basis of the materials and the documents collected are groundless or not. they also contend that the court while considering such an application cannot act merely as a post - office or a mouthpiece of the prosecution. in support of the submission, reliance has been placed on a decision of this court in the case of sajjan kumar v. cbi, ( 2010 ) 9 scc 368 and our attention has been drawn to paragraph 17 ( 4 ) of the judgment, which reads as follows : however, discharge under section 239 can be ordered when the magistrate considers the charge against the accused to be groundless. the power to discharge is exercisable under section 245 ( 1 ) when, the magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if not repudiated, would warrant his conviction. section 227 and 239 provide for discharge before the recording of evidence on the basis of the

police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. however, the stage of discharge under section 245, on the other hand, is reached only after the evidence referred in section 244 has been taken. thus, there is difference in the language employed in these provisions. but, in our opinion, notwithstanding these differences, and whichever provision may be applicable, the court is required at this stage to see that there is a prima facie case for proceeding against the accused. reference in this connection can be made to a judgment of this court in the case of r. s. nayak v. a. r. antulay, ( 1986 ) 2 scc 716. the same reads as follows : any observation made by us in this judgment is for the purpose of disposal of these appeals and shall have no bearing on the trial. the surviving respondents are directed to appear before the respective courts on 3rd of february, 2014. the court shall proceed with the trial from the stage of charge in accordance with law and make endeavour to dispose of the same expeditiously. in the result, we allow these appeals and set aside the order of discharge with the aforesaid observation.... j. ( chandramauli kr. prasad ). j. ( m. y. eqbal ) new delhi, january 06, 2014. - - - - - - - - - - - - - - - - - - - - - - -

a. k. sikri, j. 1. these contempt proceedings arise out of the judgment and order dated 23. 11. 2012 passed by this court in ca nos. 8226 - 8227 of 2012. before we take note of the exact nature of directions given in that judgment which according to the petitioners have been flouted contumaciously and deliberately, we would like to take note of the history of litigation culminating in passing of the said judgment. 2. the petitioner is an association representing the teachers of the bihar subordinate education service ( hereinafter referred to as bses for brevity ). they had filed a writ petition in the patna high court claiming merger of their cadre with the bihar education service ( hereinafter referred to bes for brevity ). the writ petition was allowed and the lpa and the slp filed against the same were dismissed. since the benefits of merger of cadre were still not being granted, another writ petition was filed, which too was allowed and affirmed in lpa. although leave was granted in the slp filed by the state of bihar, ultimately the civil appeal was dismissed by the judgment dated 19. 04. 2006 resulting in the outcome in favour of the petitioner. 3. in compliance of the said judgment of this court, a resolution merging the cadre of bses with bes was issued on 07. 07. 2006 and the bses teachers were granted benefits of the merger, like enhancement of payscale, promotion etc. at this stage, a writ petition was filed by bes association ( besa ) challenging the merger. a single judge of the high court allowed it vide judgment dated 31. 10. 2007, which was affirmed by a division bench on 21. 05. 2010. this judgment was challenged before this court by filing slp. 4. immediately after the judgment of the learned single judge, the state government withdrew the resolution of merger dated 07. 07. 2006 by a notification dated 19. 11. 2007 expressly mentioning therein that the same was being issued in light of the high court judgment dated 31. 10. 2007 and thereby all benefits of merger of cadre were withdrawn. several consequential benefits had been granted to the teachers pursuant to the merger by issuing various resolutions. these benefits were also withdrawn and in fact a resolution was passed by the state government on 17. 01. 2008 directing that the teachers would get pay and other benefits, as they were getting prior to the

merger, thereby nullifying the effect of earlier resolution of merger dated 7. 7. 2006. 5. the special leave petition was granted and appeal was ultimately heard finally. eventually this appeal was allowed by a detailed judgment dated 23. 11. 2012, thereby setting aside the judgment of the high court. this court also quashed the notification of the state government dated 19. 11. 2007, by which the benefits of merger granted to the teachers had been withdrawn. as a corollary state government s resolution dated 07. 07. 2006 was upheld and restored by which the cadre of the bses teachers, teaching branch had been merged with that of bes and the state government was directed to act accordingly. 6. the conclusive portion of the detailed judgment dated 23. 11. 2012 reflects raison d etre for arriving at such a conclusion and the precise nature thereof. we, therefore, reproduce the same hereunder for the sake of further discussion : 7. it is clear from the above that the court took the view that once decision of merger was not only upheld by this court in its earlier judgment dated 19. 04. 2006, but thereafter it was even acted upon by the state government by passing resolution dated 07. 07. 2006, there was no reason for the high court to reopen the matter in a writ petition at the instance of bes association. the court, therefore, in categorical terms upheld the resolution dated 07. 07. 2006 effecting the merger of two services namely bses and bes. since this merger was undone by the state government by passing another resolution dated 19. 11. 2007, this latter resolution was quashed. the effect of these directions was to restore status quo ante by reinforcing the position with the issuance of resolution merging the two cadres on 07. 07. 2006 and conferring all benefits of merger on to the members of the petitioner's association, viz. teachers belonging to erstwhile bses. 8. according to the petitioner, after the aforesaid judgment was given, several representations were made to the state government, on a virtually daily basis, to restore the earlier position consequent upon the merger of the two cadres but it was of no avail. in these representations, the petitioners also called upon the state government to give the consequential benefits granted pursuant to merger notification by restoring the same and stated that these benefits would include upgradation of posts, fixation of higher pay, payment of arrears, promotions etc. however, instead of implementing the directions contained in the judgment

, the petitioner received letter dated 24. 01. 2013 from respondent no. 4, namely, the director ( admn. ) - cum - additional secretary, department of education, government of bihar ) stating therein that the proposal was sent for the approval of merger and the petitioner were asked to provide details of pay scales etc. of the bses teacher to expedite the matter. according to the petitioner referring the matter to the cabinet to approve the merger itself was a contemptuous act inasmuch as there was no question of fresh approval from the cabinet regarding merger. according to the petitioner with the upholding of the resolution dated 7. 07. 2006, which was a resolution of merger, that resolution stood revived and restored by the court itself and the government was only required to grant the consequential benefits to the bses teachers by passing formal orders in this behalf. notwithstanding the same, in compliance with the request letter dated 24. 01. 2013, the petitioner submitted the required details vide communication dated 28. 01. 2003. however, even thereafter nothing happened even when the matter was persued repeatedly and almost on daily basis with the government. it is at that stage that present contempt petition was filed on 23. 01. 2013 alleging that the respondents herein had deliberately, willfully and intentionally failed to comply with the directions contained in the judgment dated 23. 11. 2012 by refusing to grant all admissible benefits of mergers to the petitioners. 9. notice in this contempt petition was issued. thereafter various orders were passed from time to time taking note of the developments happening at the government s end which included approval for merger and grant of certain benefits by the state cabinet. it would be apt to take note of steps taken by the state government, in brief, hereunder : 10. a glimpse of the aforesaid steps taken after the filing of the ccp shows that some efforts are being made to comply with the directions of this court that too after the filing of this ccp. however, the grievance of the petitioner is that even when the orders of creation and upgradation of post etc. are issued there are so many discrepancies therein which would manifest lack of bona fides on the part of the administration to comply with the directions in letter and spirit. on the contrary in spite of merger, erstwhile bses teachers are given step motherly treatment on the one hand, and on the other hand bes employees are still treated as the favourites of the authorities, with the result the discrimination between the

two continues, even when with the merger of two cadres, they stood amalgamated into one and there was no reason to identify them as bses and bes any longer. it is further argued that the provisions of bihar education rules, 2014 ( the rules, 2014 ) are deliberately made with the aforesaid ragnant motive in mind and made in violation of directions in the judgment of this court. various discrepancies in the orders issued by the government from time to time, as well as in the rules, 2014 are pointed out in the manner as below : discrepancies in the orders of posting1. posting orders have been issued with complete non application of mind as even dead and retired teachers have been posted. 2. seniority has been given a complete go by while issuing these orders. juniors have been posted as principals and seniors posted as vice - principals, sr. professor & sr. lecturers. 3. posting the erstwhile bses teachers in training colleges is impermissible under 1973 rules as well as the new 2014 rules. 4. these notifications have been issued on 10. 02. 2013 posting erstwhile bses teachers as vice - principals, sr. professors, sr. lecturers. however, the new rules were notified on 12. 02. 2014 and therefore on the day these postings were made, the posts were non existent. discrepancies in the creation & upgradation of posts1. posts of sr. professors & sr. lecturers are unheard of in schools. such posts have never existed in any school, let alone govt. school and exist only in colleges. 2. creation of these posts show malicious intent as it is an attempt to prevent erstwhile bses teachers from occupying higher promotional posts in bes. 3. para 7 of the resolution dated 29. 01. 2014 says that these posts would get finished once the incumbents retired. the intention is therefore clear that these posts are not required and are being used to only park the erstwhile teachers till they retire. 4. the bes officers had pleaded in ia 25 - 26 that their seniority would be affected and they would lose the higher posts. this ia was dismissed, despite that the respondents have devised this creation of posts to protect the bes officers. 5. the purported reasoning behind creating these posts is that adequate promotional posts were created for the period 01. 01.

1977 to 31. 12. 1995 in the merged bes cadre vide notification dated 26. 07. 2013. even the exercise qua post 01. 01. 1996 period has been completed vide notifications dated 10. 11. 2001, 10. 12. 2002 and 29. 06. 2004 initially and then vide resolution dated 15. 06. 2011 as need based posts promotional posts, which are not to be created but merely identified, have been identified for the bes. 6. other posts / categories of posts were merged in the bes in the past but this exercise of creating posts was never undertaken. this is nothing but an attempt to overreach the orders of this court to protect the bes officers at any cost. discrepancies in the bihar education rules 2014 and the cabinet memo approving new rules. 1. this is the most brazen attempt to deny the petitioner the fruits of its success in three rounds of litigation upto this hon ble court. as a result of merger, the erstwhile bses teachers would have been entitled to the highest posts in bes, a fact admitted specifically by the bes officers themselves. as a result of these new rules, they cannot go beyond the post of principal, which was the basic grade / entry level post of bes till now. 2. even though the bes officers rank much junior to them, these bes officers would continue to be the controlling officers of the schools in which the bses teachers would be posted by virtue of the nature of their posts. 3. merely giving financial benefits to the erstwhile bses teachers is not enough and they could not be denied the higher posts within bes. 4. the real intention to somehow protect the bes officers is revealed from para 2 of cabinet memo dated 13. 01. 2014 which speaks of clearing the way for unobstructed promotion of bes officers. 5. a similar attempt to bifurcate cadres after the order of merger in 2006 was shot down by the then minister saying doing so would amount to breaching court orders and against organizational interest. 6. there is no direction by this hon ble court to frame new rules and the respondents are completely misreading para 42 of the judgment dated 23. 11. 2012. this hon ble court had merely considered and rejected the submission of bes officers opposing merger on the ground of lack of new rules. 7. since 1973 rules already exist, there is no occasion nor need for new rules. 8.

these rules take away the actual benefit of merger. the very basis of the merger was to provide adequate promotional avenues to the teachers but these rules take that away. 9. the ld. asg appearing for the respondents had stated before this court on 12. 12. 2013 that the seniority list dated 17. 08. 2007 would be given effect to. these rules completely annul that seniority list as each sub cadre would have a separate seniority list. 11. mr. patwalia, learned senior advocate who made detailed submissions on the aforesaid aspects rapped up his arguments by pointing out that respondents continue to defy the orders of this court which would be clear from the following : 12. mr. l. nageshwar rao, learned asg appeared on behalf of respondents. he countered the submissions of mr. patwalia by arguing that there was substantial compliance of the directions contained in the judgment dated 23. 11. 2012, and no case for proceedings against the respondents for contempt was made out. he drew our attention to the following steps which were taken by the state government, which according to him, amounted to due compliance : v ) mr. rao further pointed out that admittedly merger of the cadre has taken place. moreover this merger is w. e. f. 1977 and all the benefits of merger including the time bound promotions or the acp have been granted accordingly. all the merged employees who are in service have been granted posting on higher post and pay - scale. vi ) he also submitted that the allegation regarding reduction in pension or regarding acp is only an apprehension. a categorical statement was made at the bar that there shall not be any reductions in pensions and as per finance department decisions the person retiring after 09. 08. 1990 shall also be granted 3rd acp. 13. according to mr. rao, the aforesaid steps taken by the administration were sufficient to demonstrate that the judgment of this court was complied with. he submitted that under the garb of the present contempt petitions, the petitioners were now challenging the rules framed in the year 2014 which was not permissible as validity of the rules could not be gone into in contempt proceedings. mr. rao justified the framing of these rules on the ground that it had become necessary because of the merger of the two cadres and in fact 2014 rules amounted to giving effect to merger that had been effected. if the petitioners had any grievance against any of the provisions of 2014 rules, the remedy for the petitioners was to file separate

proceedings. it was further submitted that the members of the petitioner association belonged to teaching cadre and had worked only as teachers throughout their service with no administrative experience. therefore, they could not take any posting on administrative side because of lack of such an experience. keeping in mind this position, 2014 rules were framed and postings had been given as per those rules. it was also submitted that the members of the petitioner association were due to retire in one or two years and at the fag end of their career they could not be given administrative assignments. moreover, the rank and pay scale is same and therefore the petitioners are not affected adversely in any manner. 14. mr. rao also attempted to justify the provisions made in the 2014 rules, which he submitted, was the prerogative of the employer. his argument was that direction of this court was only to merge the cadre. however, what further benefits are to be given and the entitlement of the officers in the merged cadre could not be gone into in the contempt petitions. moreover, it was for the government to decide as to what provisions are to be made for the career progressions of the merged employees from two cadres. for that, government had complete freedom. to achieve this, 2014 rules had been framed. he thus, argued that there was no willful disobedience. 15. mr. rao referred to the following judgments : 16. in rejoinder mr. patwalia submitted that even a cursory glance into the 2014 rules and the provision made therein would amply bear out that the whole intention of the rule makers was to frustrate the effect of the judgment. according to him that would amount to contempt and from this angle the court was competent to examine the matter even in contempt petitions. he further submitted that the argument raised now were precisely the grounds on which the government had opposed the merger but the court had rejected those arguments. therefore, under the garb of implementation of that judgment, same very grounds could not be raised to justify making such provisions in 2014 rules. he argued that the report of the committee which was relied upon by the respondents in fact rejected the entire issues of merger. he referred to certain paras from the report to support his submission. he also made the grievance that initially, after the rendering of the judgment of this court, the government had started implementing the same and had even passed certain orders creating additional post to give effect to the judgment. so much so even seniority was finalized. however, thereafter the administration turned hostile and bent backward. therefore, the

entire gamut was open to judicial review even in the contempt proceedings. he further submitted that there was ample power with this court, particularly under article 142 of the constitution, to do complete justice in the matter as held in delhi development authority v. skipper construction co. ( p ) ltd. and another ; ( 1996 ) 4 scc 622. 16. in vinay chandra mishra, this court dealt with the scope and width of the power of this court under article 142. after referring to the earlier decisions of the court in extenso, it is held that : it is also held that : 1990 / 14 - 1 - 1991, which decision has indeed been affirmed by this court by dismissing the special leave petition preferred against it. it may not be open to us to ignore the said decisions and orders, including the orders of this court, and / or to go behind those decisions / orders and say that the amount received by dda towards sale consideration from skipper or the value of the construction raised by skipper on the said plot should be made available for paying out the persons defrauded by skipper. we must treat those decisions and orders as final and yet devise ways and means of doing complete justice between the parties before us. the contemner should not be allowed to enjoy or retain the fruits of his contempt. 17. he also referred to the judgment in the case of ashish ranjan v. anupma tandon and another ; ( 2010 ) 14 scc 274. 20. in addition to the statutory provisions of the contempt of courts act, 1971 the powers under articles 129 and 142 of the constitution are always available to this court to see that the order or undertaking which is violated by the contemnor is effectuated and the court has all powers to enforce the consent order passed by it and also issue further directions / orders to do complete justice between the parties. mutual settlement reached between the parties cannot come in the way of the well - established principles in respect of the custody of the child and, therefore, a subsequent application for custody of a minor cannot be thrown out at the threshold being not maintainable. it is a recurring cause because the right of visitation given to the applicant under the agreement is being consistently and continuously flouted. thus, the doctrine of res judicata is not applicable in matters of child custody. 18. he concluded his submissions by arguing that there were three rounds of litigation earlier and the petitioners were fighting for justice since 1977 when

decision was taken by the government to merge the two cadres. by framing 2014 rules, the government negated the effect of merger thereby leaving the petitioners in lurch once again and now the plea was taken to approach the court again with fourth round of litigation. he pointed out that during this period, most of the members of the petitioner association had retired and very few who were left were going to retire in near future. the whole intention of the authorities was to tire out these petitioners and frustrate their efforts which should not be countenanced. 19. at the outset, we may observe that we are conscious of the limits within which we can undertake the scrutiny of the steps taken by the respondents, in these contempt proceedings. the court is supposed to adopt cautionary approach which would mean that if there is a substantial compliance of the directions given in the judgment, this court is not supposed to go into the nitty gritty of the various measures taken by the respondents. it is also correct that only if there is willful and contumacious disobedience of the orders, that the court would take cognizance. even when there are two equally consistent possibilities open to the court, case of contempt is not made out. at the same time, it is permissible for the court to examine as to whether the steps taken to purportedly comply with the directions of the judgment are in furtherance of its compliance or they tend to defeat the very purpose for which the directions were issued. we can certainly go into the issue as to whether the government took certain steps in order to implement the directions of this court and thereafter withdrew those measures and whether it amounts to non - implementation. limited inquiry from the aforesaid perspective, into the provisions of 2014 rules can also be undertaken to find out as to whether those provisions amount to nullifying the effect of the very merger of bses with bes. as all these aspects have a direct co - relation with the issue as to whether the directions are implemented or not. we are, thus, of the opinion that this court can indulge in this limited scrutiny as to whether provisions made in 2014 rules frustrate the effect of the judgment and attempt is to achieve those results which were the arguments raised by the respondents at the time of hearing of c. a. no. 8226 - 8227 of 2012 but rejected by this court. to put it otherwise, we can certainly examine as to whether 2014 rules are made to implement the judgment or these rules in effect nullify the result of merger of the two cadres. 20. as noted above,

the resolution of merger earlier was passed on 7. 7. 2006 after rendition of the judgment dated 19. 4. 2006 by this court in the second round of litigation. this was preceded by a note for the cabinet regarding merger. a perusal of this cabinet note shows that the total history about the various proceedings culminating into judgment dated 19. 4. 2006 is given. we have to keep in mind that original resolution for merger is resolution no. 3512 dated 11. 4. 1977 which is directed to be implemented. in the cabinet note dated 3. 7. 2006 it is noted as under : - 14. it is to be noted that in view of the provisions contained in resolution no. 3521 dated 11. 4. 1977 several departments have merged the lower scales with the higher ones. but the incumbents of this cadre of the education deptt. have been denied their promotions after 1977 which was otherwise due. where as the incumbents of inspecting branch of this cadre are reported to have been promoted upto 2001. 21. thereafter, the proposal for creation of more posts is contained in para 15 which reads as under : 22. resolution to this effect was passed on 7. 7. 2006. thereafter, combined gradation list of the merged cadre of bes dated 17. 8. 2007 was issued. in this consolidated seniority list of officers of combined bes service, the employees of both the merged cadre is shown as per their seniority. this was the precise manner in which the authorities had understood the scheme of merger and acted earlier pursuant to the judgment dated 19. 4. 2006. directions contained in the judgment dated 23. 11. 2012 in c. a. nos. 8226 - 8227 of 2012 are reiteration of earlier judgment dated 19. 4. 2006. in fact, it is specifically held that resolution dated 7. 7. 2006 is valid and later resolution dated 17. 1. 2008 annulling the earlier resolution dated 7. 7. 2006 has been quashed. it thus becomes obvious that the respondents were to revive the earlier order / resolution of merger as well as combined gradation list issued earlier. these remedial steps were necessitated to carry out the direction of the judgment. let us see whether such steps are taken now or 2014 rules are in the teeth of the aforesaid directions. 23. we find that cabinet proposal dated 1. 3. 2013 regarding merger was prepared on 1. 3. 2013 which referred to the earlier resolution no. 1209 dated 7. 7. 2006,

in the following manner : 24. significantly, resolution dated 2. 4. 2013 passed by the government revived earlier resolution no. 1209 dated 7. 7. 2006 and withdraws notification no. 1855 dated 18. 11. 2007. so far so good. the only thing that remained was to revive the combined seniority / gradation list also which was issued on 17. 8. 2007 and give further benefits of promotion, postings, acp etc. based thereupon. 25. we find that first order dated 24. 4. 2013 was issued for grant of acp. while giving this benefit, seed of mischief is sown as is clear from the following portion therein : 26. it is a matter of record that resolution no. 1209 / 2006 was passed by the cabinet which means that it was the decision at the highest level. it was not open to some officer sitting in the education department to make such comments by exhibiting his superior knowledge about the purported issued, that too in an order granting acp to the merged teachers as a consequence of merger. this was the starting point to reopen the settled issue of merger of two cadres. 27. we would like to point out here that officers of erstwhile bes i. e. bes association had filed i. a. 25 - 26 of 2013 in this very decided appeal i. e. c. a. no. 8226 - 8227 of 2012 seeking to rake up the same issue about the gradation list. this was specifically contended that merger takes effect from the date when posts are created. apprehension was expressed that affect the vested right of seniority of the members of bes association ( besa ) who are already in the cadre, particularly respondent nos. 2, 3 and 51 and some other members of besa. it was mentioned that some of the officers were holding the post of sub - director or rdde who were appointed in december, 1983 and they may have to face reversion. however, this i. a. was dismissed by the court. 28. notwithstanding the aforesaid, we find that 2014 rules seek to achieve the same result which was neither the intent of merger nor was permitted by this court at the instance of besa in their application. on the contrary, as noted below, by an ingenious method, effect of merger is undone thereby. 29. these 2014 rules created four sub - cadres within bes which are as under : 31. to add insult to the injury caused to the petitioner,

rule 27 of the rules gives option to the members of other sub cadre for inclusion in a different cadre fulfilling the prescribed qualifications, but no such option is given to the teaching cadre. this rule 27 reads as under : 32. by placing the erstwhile bses teachers in teaching sub cadre, are allowed to go upto the position of principal which is the highest promotional post in their sub cadre. on the other hand bes officers who are put in administrative sub cadre would continue to control the schools. moreover, each sub cadre is to have its separate seniority list. it means the combined gradation list is given a go bye and even by bringing bses in bes, segregation between the two cadres is achieved with these provisions. to our mind the aforesaid provisions of 2014 rules negate the very effect of merger which was envisaged way back in the year 1977. in spite of succeeding in three rounds of litigation, the petitioners are not only treated as a distinct and separate class with the creation of the aforesaid sub cadre, the benefit which could accrue to them in a combined seniority list, as a result of merger, have been snatched away from them. what was given to these petitioners by the respondents in compliance of the judgment earlier, has now been taken away with the promulgation of 2014 rules. 33. lest we may be misunderstood, we make it clear that it is the prerogative of the government to frame service rules in one or the other manner. in case provisions contained in those rules offend the rights of any of the employees, they have an independent right to challenge the same which can be judicially scrutinized by the courts, applying the settled principles of judicial review. however, if such an exercise is undertaken on the premise that it is done to comply with the directions contained in the judgment and the court finds that, ex facie, it is not so and on the contrary offends the directions in the judgment, such a move cannot be countenanced. 34. it is also crystal clear and borne from the record that the whole exercise was done to go out of way to help bes officers. in fact, mr. rao even argued on these lines by pointing out that the promotions in bes cadres were made in two stages i. e. upto 31. 12. 1995 in one stage and from 1. 1. 1996 till now in the second stage. from 1. 1. 1996 no promotion was given to bes

because it was need based and since the posts were to be identified, only the additional charge was given to them. what is lost sight of, in this entire arguments, is that, the merger is to take effect from 1977 and even resolution to that effect is passed by the cabinet. further once that is done and the combined gradation list issued in the year 2007 was to be necessarily revived, further steps were to be taken from that stage. this court is not suggesting that those of the petitioners who become senior to their counterparts in bes, should be given automatic promotion to second or third stages which was the apprehension expressed. these officers, as a result of merger and combined gradation list, would take their rightful place and thereafter their career progression would be permissible as per the rules. for this purpose it was open to the government to frame the rules and make provisions laying down eligibility conditions. however, by well crafted technique of creating sub cadres and treating teaching category as dying sub cadre, almost the same result, which was the position before the merger, is achieved. it is obvious that such provisions in 2014 rules are made with the sole intention to frustrate the effect of the judgment. we have no hesitation to say that this would amount to contempt of the court. 35. having held so, let us consider as to what steps are required for proper implementation of the judgment. since the statement is made by mr. rao, which is contained in government written response as well, that the petitioner would be given all due benefits of acp and their pension will also be not reduced, we take to that statement on record. what remains is the restoration of combined gradation list and posting of the officers of the petitioner's association and their promotions on that basis. having regard to the concession made by mr. patwalia in the form of solution suggested by him, it is not necessary for us to give directions to the administration to make all consequential amendments in the 2014 rules. mr. patwalia, submitted that if rule 27 is amended to give option to the teachers as well, the petitioners would be satisfied with the same. we are of the opinion that it is a very fair suggestion to solve the problem. 36. we thus, dispose of these contempt petitions with the following directions : vi ) the petitioner shall also be entitled to the costs of these proceedings, which we fix at rs. 50, 000 / -..... j. [ surinder singh nijjar ]

.... j. [ a. k. sikri ] new delhi may 07, 2014

ranjan gogoi, j. 1. leave granted. 2. this appeal is directed against the judgment and order dated 25. 04. 2011 passed by the high court of andhra pradesh affirming the order of conviction passed by the additional special judge for spe & acb cases, city civil court hyderabad, whereby the accused appellant has been found guilty of commission of the offences under sections 7 and 13 ( 1 ) ( d ) ( i ) ( ii ) read with section 13 ( 2 ) of the prevention of corruption act, 1988 ( for short the act ). the accused appellant has been sentenced to undergo rigorous imprisonment for one year for each of the offences and also to pay a fine of rs. 1000 / - in default to suffer simple imprisonment for three months more. 3. according to the prosecution, the accused appellant was, at the relevant point of time, working as a mandal revenue officer ( mro ) in the ranga reddy district of the state of andhra pradesh. the complainant k. venkataiah ( pw - 2 ) had a fair price shop in dadupally village. on 8. 11. 1995, the complainant, it is alleged, had approached the accused appellant for release of essential commodities against his shop for the month of november, 1995. the accused appellant, it is claimed, demanded a bribe of rs. 250 / - to issue the release order. as the complainant was not willing to pay the said amount, he had approached listed witness no. 9 k. narsinga rao, ( since deceased ) deputy superintendent of police, acb, hyderabad on 9. 11. 1995 and submitted a written complaint ( exbt. p - 11 ) before him. according to the prosecution, lw - 9 after verifying the contents of the complaint registered a case and issued exhibit p - 12 ( fir ). lw - 9 directed the complainant to come with the bribe amount on 13. 11. 995. it is also alleged that lw - 9 summoned pw - 1, s. hanuma reddy, deputy director of insurance to act as a panch witness and explained the details of the complaint ( exbt. p - 11 ) to him. furthermore, according to the prosecution, lw - 9 got the currency notes treated with phenolphthalein powder and also explained to pw - 1 the significance of the sodium carbonate solution test. the details of the

trap that was planned was explained to all concerned including the complainant. accordingly, the plan was put into execution and on receipt of the pre - arranged signal to the trap laying officer, the police party headed by lw - 9, which also included pw - 5, rushed into the office of the accused appellant. thereafter, according to the prosecution, the sodium carbonate solution test was conducted on the right hand fingers of the accused as well as the right shirt pocket. both tests proved to be positive. the tainted currency notes were recovered from the possession of the accused. 4. chargesheet was filed against the accused - appellant on completion of investigation. upon grant of sanction for prosecution, cognizance of the offences alleged was taken and charges were framed to which the accused pleaded not guilty. in the course of the trial 5 witnesses were examined on behalf of the prosecution and 12 documents ( exbt. p - 1 to p - 12 ) besides 10 material objects ( mos 1 to 10 ) were exhibited. the plea of the accused was that on the date of the trap, pw - 2, the complainant had put the currency notes in his shirt pocket with a request to have the same deposited in the bank as fee for renewal of the licence of the complainant. it was at this point of time that the police party had come and seized the currency notes after taking the same from his pocket. 5. we have heard mr. guntur prabhakar, learned counsel for the appellant and mr. mayur r. shah, learned counsel appearing on behalf of the respondent - state. 6. pw - 2, the complainant, did not support the prosecution case. he disowned making the complaint ( exbt. p - 11 ) and had stated in his deposition that the amount of rs. 250 / - was paid by him to the accused with a request that the same may be deposited with the bank as fee for the renewal of his licence. he was, therefore, declared hostile. however, pw - 1 ( panch witness ) had testified that after being summoned by lw - 9, k. narsinga rao, on 13. 11. 1995, the contents of exhibit p - 11 ( complaint ) filed by the complainant pw - 2 were explained to him in the presence of the complainant who acknowledged the fact that the accused appellant had demanded a sum of rs. 250 / - as illegal gratification for release of the pds items. it

is on the aforesaid basis that the liability of the accused - appellant for commission of the offences alleged was held to be proved, notwithstanding the fact that in his evidence the complainant pw - 2 had not supported the prosecution case. in doing so, the learned trial court as well as the high court also relied on the provisions of section 20 of the act to draw a legal presumption as regards the motive or reward for doing or forbearing to do any official act after finding acceptance of illegal gratification by the accused - appellant. 7. in so far as the offence under section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. the above position has been succinctly laid down in several judgments of this court. by way of illustration reference may be made to the decision in c. m. sharma vs. state of a. p. [ 1 ] and c. m. girish babu vs. c. b. i. [ 2 ] 8. in the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. the prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. when the complainant himself had disowned what he had stated in the initial complaint ( exbt. p - 11 ) before lw - 9, and there is no other evidence to prove that the accused had made any demand, the evidence of pw - 1 and the contents of exhibit p - 11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. we are, therefore, inclined to hold that the learned trial court as well as the high court was not correct in holding the demand alleged to be made by the accused as proved. the only other material available is the recovery of the tainted currency notes from the possession of the accused. in fact such possession is admitted by the accused himself. mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under section 7. the above also will be conclusive in so far as the offence under section 13 (

1 ) ( d ) ( i ) ( ii ) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. 9. in so far as the presumption permissible to be drawn under section 20 of the act is concerned, such presumption can only be in respect of the offence under section 7 and not the offences under section 13 ( 1 ) ( d ) ( i ) ( ii ) of the act. in any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under section 20 of the act that such gratification was received for doing or forbearing to do any official act. proof of acceptance of illegal gratification can follow only if there is proof of demand. as the same is lacking in the present case the primary facts on the basis of which the legal presumption under section 20 can be drawn are wholly absent. 10. for the aforesaid reasons, we cannot sustain the conviction of the appellant either under section 7 or under 13 ( 1 ) ( d ) ( i ) ( ii ) read with section 13 ( 2 ) of the act. accordingly, the conviction and the sentences imposed on the accused - appellant by the trial court as well as the high court by order dated 25. 4. 2011 are set aside and the appeal is allowed.... cji. [ p. sathasivam ]......... j. [ ranjan gogoi ].......... j. [ n. v. ramana ] new delhi, march 28, 2014. - - - - - - - - - - - - - - - - - - - - - - -

dipak misra, j. leave granted. marriage as a social institution is an affirmance of civilized social order where two individuals, capable of entering into wedlock, have pledged themselves to the institutional norms and values and promised to each other a cemented bond to sustain and maintain the marital obligation. it stands as an embodiment for continuance of the human race. despite the pledge and promises, on certain occasions, individual incompatibilities, attitudinal differences based upon egocentric perception of situations, maladjustment phenomenon or propensity for non - adjustment or refusal for adjustment gets eminently projected that compels both the spouses to take intolerable positions abandoning individual responsibility, proclivity of asserting superiority complex, betrayal of trust which is the cornerstone of life, and sometimes a pervert sense of revenge, a dreadful diet, or sheer sense of envy bring the cracks in the relationship when either both the spouses or one of the spouses crave for dissolution of marriage freedom from the institutional and individual bond. the case at hand initiated by the husband for dissolution of marriage was viewed from a different perspective by the learned family court judge who declined to grant divorce as the factum of desertion as requisite in law was not proved but the high court, considering certain facts and taking note of subsequent events for which the appellant was found responsible, granted divorce. the high court perceived the acts of the appellant as a reflection of attitude of revenge in marriage or for vengeance after the reunion pursuant to the decree for restitution of marriage. the justifiability of the said analysis within the parameters of section 13 ( 1 ) of the hindu marriage act, 1955 ( for brevity the act ) is the subject - matter of assail in this appeal, by special leave, wherein the judgment and decree dated 11. 09. 2009 passed by the high court of karnataka in mfa no. 9164 of 2004 reversing the decree for restitution of conjugal rights granted in favour of the wife and passing a decree for dissolution of marriage by way of divorce allowing the petition preferred by the respondent - husband, is called in question. the respondent - husband, an associate professor in ambedkar medical college, kadugondanahalli, bangalore, filed a petition, m. s. no. 5 of 2001 under section 13 ( 1 ) the act seeking for a decree for judicial separation and dissolution

of marriage. however, in course of the proceeding the petition was amended abandoning the prayer for judicial separation and converting the petition to one under section 13 ( 1 ) ( ib ) of the act seeking dissolution of marriage by way of divorce. in the petition filed before the family court, it was averred by the respondent - husband that the marriage between the parties was solemnized in accordance with hindu rites and customs on 23. 11. 1994. after the marriage the husband and wife stayed together for one and a half years in the house of the father of the husband but from the very first day the appellant - wife was non - cooperative, arrogant and her behaviour towards the family members of the husband was unacceptable. despite the misunderstanding, a male child was born in the wedlock and thereafter, the wife took the child and left the house and chose not to come back to the husband or his family for a period of three years. it was pleaded that there had been a marital discord and total non - compatibility, and she had deserted him severing all ties. it was also alleged that she had left the tender child in the custody of her parents and joined a post graduate course in the medical college of gulbarga. all the efforts by the husband to bring her back became an exercise in futility inasmuch as the letters written by him were never replied. despite the non - responsive attitude of the wife, he, without abandoning the hope for reconciliation for leading a normal married life, went to the house of his in - laws, but her parents ill treated him by forcibly throwing him out of the house. it was the assertion of the husband that after she completed her course, she started staying with her parents along with the child at bangalore and neither he nor his family members were invited for the naming giving ceremony of the child. as set forth, the conduct of the wife caused immense mental hurt and trauma, and he suffered unbearable mental agony when the family members of his wife abused and ill treated him while he had gone to pacify her and bring her back to the matrimonial home. all his solicitations and beseechments through letters to have normalcy went in vain which compelled him to issue a notice through his counsel but she chose not to respond to the same. under these circumstances, the petition was filed for judicial separation and thereafter, as has been stated earlier, prayer was amended seeking dissolution of marriage

on the ground of desertion since she had deliberately withdrawn from his society. the wife filed objections contending, inter alia, that when she was residing in the matrimonial home, the sister and brother - in - law of the husband, who stayed in the opposite house, were frequent visitors and their interference affected the normal stream of life of the couple. they influenced the husband that he should not allow his wife to prosecute her studies and be kept at home as an unpaid servant of the house. the husband, as pleaded, was torn in conflict as he could not treat the wife in the manner by his sister and brother - in - law had desired and also could not openly express disagreement. at that juncture, as she was in the family way, as per the customs, she came to her parental home and by the time the child was born the sister and brother - in - law had been successful in poisoning the mind of the husband as a result of which neither he nor his relatives, though properly invited, did not turn up for the naming ceremony. all her attempts to come back to the matrimonial home did not produce any result since the husband was acting under the ill - advice of his sister and brother - in - law. it was put forth that he had without any reasonable cause or excuse refused to perform his marital obligations. the plea of mental hurt and trauma was controverted on the assertion that she had never treated him with cruelty nor was he summarily thrown out of the house of her parents. be it stated, the wife in the same petition filed an application under section 9 of the act for restitution of conjugal rights to which an objection was filed by the husband stating, inter alia, that no case had been made out for restitution of conjugal rights but, on the contrary, vexatious allegations had been made. it was further averred that the wife had deserted him for more than five years and she had been harassing him constantly and consistently. in support of their respective pleas the husband and wife filed evidence by way of affidavit and were cross - examined at length by the other side. on behalf of the husband 12 documents were exhibited as exts. p - 1 to p - 12 and the wife examined one witness and exhibited four documents, exts. r - 1 to r - 4. the family court formulated the following points for consideration : - ( 1 ) whether the petitioner proves that respondent assaulted him for a continuous period of not

less than 2 years immediately proceeding the presentation of the petition? whether the respondent proves that the petitioner without reasonable excuse withdrawn from the society? whether the petitioner is entitled for decree of divorce as prayed for? whether the respondent is entitled for decree of restitution of conjugal right as prayed for? what order? the learned principal judge of the family court, appreciating the oral and documentary evidence on record came to hold that the material on record gave an impression that there was no scuffle between the husband and the wife ; that even after the birth of the child the husband and his family members used to visit the wife at her parental home to see the child ; that there was no material on record to show that when he went to his in - laws house to see the child, he was ill - treated in any manner ; that after the child was born he had taken the child along with her for vaccination and spent sometime ; that though the husband and his relatives were invited for naming ceremony of the child, they chose not to attend ; that the husband was able to recognize his son from the photograph in ext. r - 2 ; that the plea of the husband that he was not allowed to see the child did not deserve acceptation ; that the circumstances did not establish that wife had any intention to bring the conjugal relationship to an end but, on the contrary, she was residing in her parents house for delivery and then had to remain at gulbarga for prosecuting her higher studies ; that while she was studying at gulbarga, as is evident from ext. r - 4, the husband stayed there for two days, i. e., 27. 5. 1999 and 28. 5. 1999 ; that from the letters vide exts. p - 3, p - 7, p - 9 and p - 11 nothing was discernible to the effect that the wife went to gulbarga for her studies without his permission and she had deserted him ; that the husband had not disclosed from what date he stopped visiting the house of the wife s parents after the birth of the child ; that the letters written by the husband did not reflect the non - cooperative conduct of the wife ; that there was no sufficient evidence to come to a definite conclusion that the wife had deserted the husband with an intention to bring the matrimonial relationship to an end ; that assuming there was desertion yet the same was not for a continuous period of two years immediately preceding the presentation of the petition ;

that the husband only wrote letters after 15. 9. 1999 and nothing had been brought on record to show what steps he had taken for resumption of marital ties with the wife if she had deserted him ; that the wife was not allowed to come back to the matrimonial home because of intervention of his sister and brother - in - law ; that the explanation given by the wife to her non - response to the letters was that when she was thinking to reply the petition had already been filed was acceptable ; that as the husband was working at ambedkar medical college in the department of biochemistry and wife had joined in the department of pathology which would show that she was willing to join the husband to lead a normal marital life ; and that it was the husband who had withdrawn from the society of the wife without any reasonable cause. being of this view, the learned family judge dismissed the application for divorce and allowed the application of the wife filed under section 23 ( a ) read with section 9 of the act for restitution of conjugal rights. after the said judgment and decree was passed by the learned family judge, the respondent did not prefer an appeal immediately. he waited for the wife to join and for the said purpose he wrote letters to her and as there was no response, he sent a notice through his counsel. the wife, eventually, joined on 22. 8. 2004 at the matrimonial house being accompanied by her relative who was working in the police department. as the turn of events would uncurtain, the wife lodged an fir no. 401 / 2004 dated 17. 10. 2004 at basaveshwaranagar alleging demand of dowry against the husband, mother and sister as a consequence of which the husband was arrested being an accused for the offences under section 498a and 506 read with section 34 of the indian penal code and also under the provisions of dowry prohibition act. he remained in custody for a day until he was enlarged on bail. his parents were compelled to hide themselves and moved an application under section 438 of the code of criminal procedure and, ultimately, availed the benefit of said provision. after all these events took place, the husband preferred an appeal along with application for condonation of delay before the high court which formed the subject - matter of m. f. a. no. 9164 / 04 ( fc ). the high court condoned the delay, took note of the grounds urged in the memorandum of appeal, appreciated the subsequent events that reflected the conduct of the wife

and opined that the attitude of the wife confirmed that she never had the intention of leading a normal married life with the husband and, in fact, she wanted to stay separately with the husband and dictate terms which had hurt his feelings. the high court further came to the conclusion that the husband had made efforts to go to gulbarga on many an occasion, tried to convince the wife to come back to the matrimonial home, but all his diligent efforts met with miserable failure. as the impugned judgment would reflect, the behaviour of the wife established that she deliberately stayed away from the marital home and intentionally caused mental agony by putting the husband and his family to go through a criminal litigation. that apart, the high court took the long separation into account and, accordingly, set aside the judgment and decree for restitution of conjugal rights and passed a decree for dissolution of marriage between the parties. we have heard mr. shanth kumar v. mohale, learned counsel for the appellant and mr. balaji srinivasan, learned counsel for the respondent. assailing the legal sustainability of the judgment of the high court, mr. shanth kumar, learned counsel appearing for the appellant, submitted that when the petition for divorce was founded solely on the ground of desertion and a finding was returned by the family court that the ingredients stipulated under section 13 ( 1 ) ( ib ) of the act were not satisfied making out a case of desertion on the part of the wife, the high court should have concurred with the same and not proceeded to make out a case for the respondent - husband on the foundation of mental cruelty. it is urged by him that the high court has taken note of subsequent events into consideration without affording an opportunity to the appellant to controvert the said material and that alone makes the decision vulnerable in law. learned counsel would submit that the high court has erroneously determined the period of communication of letters and the silence maintained by the wife which is factually incorrect and, in fact, the concept of desertion, as is understood in law, has not been proven by way of adequate evidence but, on the contrary, the analysis of evidence on record by the family court goes a long way to show that there was, in fact, no desertion on the part of the wife to make out a case for divorce. it is his further submission that the high court has opined that the marriage between the parties had irretrievably been broken and, therefore, it was

requisite to grant a decree for dissolution of marriage by divorce which cannot be a ground for grant of divorce. learned counsel has placed reliance on the decisions in lachman utamchand kirpalani v. meena @ mota [ 1 ], k. narayanan v. k. sreedevi [ 2 ], mohinder singh v. harbens kaur [ 3 ] and smt. indira gangele v. shailendra kumar gangele [ 4 ]. mr. balaji srinivasan, learned counsel for the respondent - husband, has urged that if the petition filed by the husband is read in entirety, it would be clear that the husband had clearly pleaded about the mental hurt and trauma that he had suffered because of the treatment meted out to him by his wife and her family members. he has drawn our attention to the evidence to show that for a long seven and a half years despite the best efforts he could not get marital cooperation from his wife and as the high court has accepted the same, the impugned judgment is flawless. he has highlighted about the non - responsive proclivity of the wife when she chose not to reply to the letters of the husband beseeching her to join his company while she was staying at gulbarga. he has also drawn our attention to the cross - examination of the husband where he has deposed that after the delivery of the son on 12. 1. 1998 when she was discharged, he and his mother had gone to bring the wife and the child to their home but she went to her parental home and further neither he nor his family members were invited for the naming ceremony which was performed in october, 1998. learned counsel has drawn our attention to the subsequent events which have been brought on record by way of affidavit as well as the rejoinder filed by the appellant - wife to the counter affidavit to highlight the subsequent conduct for the purpose of demonstrating the cruel treatment of the wife. it is canvassed by him that the subsequent events can be taken note of for the purpose of mental cruelty by this court and the decree of divorce granted by the high court should not be disturbed. to appreciate the rivalised submissions raised at the bar, we have carefully perused the petition and the evidence adduced by the parties and the judgment of the family court and that of the high court. the plea that was raised for grant of divorce was under section 13 ( 1 ) ( ib ) of the act

. it provides for grant of divorce on the ground of desertion for a continuous period of not less than two year immediately preceding the presentation of the petition. the aforesaid provision stipulates that a husband or wife would be entitled to a dissolution of marriage by decree of divorce if the other party has deserted the party seeking the divorce for a continuous period of not less than two years immediately preceding the presentation of the petition. desertion, as a ground for divorce, was inserted to section 13 by act 68 / 1976. prior to the amendment it was only a ground for judicial separation. dealing with the concept of desertion, this court in savitri pandey v. prem chandra pandey [ 5 ] has ruled thus : - desertion, for the purpose of seeking divorce under the act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other s consent and without reasonable cause. in other words it is a total repudiation of the obligations of marriage. desertion is not the withdrawal from a place but from a state of things. desertion, therefore, means withdrawing from the matrimonial obligations i. e. not permitting or allowing and facilitating the cohabitation between the parties. the proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. after referring to a host of authorities and the views of various authors, this court in bipinchandra jaisinghbai shah v. prabhavati1 held that if a spouse abandons the other in a state of temporary passion, for example, anger [ pic ] or disgust without intending permanently to cease cohabitation, it will not amount to desertion. in the said case, reference was also made to lachman utamchand kirpalani s case wherein it has been held that desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by the other without that other s consent, and without reasonable cause. for the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there ( 1 ) the factum of separation, and ( 2 ) the

intention to bring cohabitation permanently to an end ( animus deserendi ). similarly two elements are essential so far as the deserted spouse is concerned : ( 1 ) the absence of consent, and ( 2 ) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. for holding desertion as proved the inference may be drawn from certain facts which may not in another case be capable of leading to the same inference ; that is to say the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. in the case at hand, the family court, on the basis of the evidence brought on record, has recorded a finding that there was no desertion for a continuous period of two years. the high court has reversed it by emphasizing on certain aspects of conduct. analysing the evidence, we are of the considered opinion that it is not established that the appellant - wife had deserted the husband for a continuous period of not less than two years immediately preceding the presentation of the petition. it is because the petition was presented in the year 2001 and during the cross - examination of the husband it has been admitted by him that he had gone to gulbarga in may, 1999 for two days. the family court, on the basis of material brought on record, has opined that there is no sufficient evidence to come to a definite conclusion that the wife deserted him with intention to bring the matrimonial relationship to an end and further the period of two years was not completed. the high court, as it seems to us, has not dealt with this aspect in an appropriate manner and opined that the wife had no intention to lead a normal married life with the husband. therefore, the allegation of desertion, as enshrined under section 13 ( 1 ) ( ib ) has not been established. the finding on that score as recorded by the learned principal judge, family court, deserves to be affirmed and we so do. presently to the factual matrix in entirety and the subsequent events. we are absolutely conscious that the relief of dissolution of marriage was sought on the ground of desertion. the submission of the learned counsel for the appellant is that neither subsequent events nor the plea of cruelty could have been considered. there is no cavil over the fact that the petition was filed under section 13 ( 1 ) ( ib ). however, on a perusal of

the petition it transpires that there are assertions of ill - treatment, mental agony and torture suffered by the husband. first we intend to state the subsequent events. as has been narrated earlier, after the application of the wife was allowed granting restitution of conjugal rights, the husband communicated to her to join him, but she chose not to join him immediately and thereafter went to the matrimonial home along with a relative who is a police officer. after she stayed for a brief period at the matrimonial home, she left her husband and thereafter lodged fir no. 401 / 2004 on 17. 10. 2004 for the offences under sections 498a and 506 / 34 of the indian penal code and the provisions under dowry prohibition act, 1961 against the husband, his mother and the sister. because of the fir the husband was arrested and remained in custody for a day. the ladies availed the benefit of anticipatory bail. the learned trial magistrate, as we find, recorded a judgment of acquittal. against the judgment of acquittal, the appellant preferred an appeal before the high court after obtaining special leave which was ultimately dismissed as withdrawn since in the meantime the state had preferred an appeal before the court of session. at this juncture, we make it absolutely clear that we will not advert to the legal tenability of the judgment of acquittal as the appeal, as we have been apprised, is sub - judice. however, we take note of certain aspects which have been taken note of by the high court and also brought on record for a different purpose. the seminal question that has to be addressed is whether under these circumstances the decree for divorce granted by the high court should be interfered with. we must immediately state that the high court has referred to certain grounds stated in the memorandum of appeal and taken note of certain subsequent facts. we accept the submission of the learned counsel for the appellant that the grounds stated in the memorandum of appeal which were not established by way of evidence could not have been pressed into service or taken aid of. but, it needs no special emphasis to state that the subsequent conduct of the wife can be taken into consideration. it settled in law that subsequent facts under certain circumstances can be taken into consideration. in a. jayachandra v. aneel kaur [ 6 ] it has been held thus : - if acts subsequent to the filing of the divorce petition can be looked into to infer condonation of the aberrations, acts subsequent to the filing of the petition can be taken note of to show a pattern in

the behaviour and conduct. in suman kapur v. sudhir kapur [ 7 ] this court had accepted what the high court had taken note of despite the fact that it was a subsequent event. it is necessary to reproduce the necessary paragraphs from the said decision to perceive the approach of this court : - 46. the high court further noted that the appellant wife sent a notice through her advocate to the respondent husband during the pendency of mediation proceedings in the high court wherein she alleged that the respondent was having another wife in usa whose identity was concealed. this was based on the fact that in his income tax return, the husband mentioned the social security number of his wife as 476 - 15 - 6010, a number which did not belong to the appellant wife, but to some american lady ( sarah awegtalewis ). [ pic ] 47. the high court, however, recorded a finding of fact accepting the explanation of the husband that there was merely a typographical error in giving social security number allotted to the appellant which was 476 - 15 - 6030. according to the high court, taking undue advantage of the error in social security number, the appellant wife had gone to the extent of making serious allegation that the respondent had married an american woman whose social security number was wrongly typed in the income tax return of the respondent husband. from the acceptance of the reasons of the high court by this court, it is quite clear that subsequent events which are established on the basis of non - disputed material brought on record can be taken into consideration. having held that, the question would be whether a decree for divorce on the ground of mental cruelty can be granted. we have already opined that the ground of desertion has not been proved. having not accepted the ground of desertion, the two issues that remain for consideration whether the issue of mental cruelty deserves to be accepted in the obtaining factual matrix in the absence of a prayer in the relief clause, and further whether the situation has become such that it can be held that under the existing factual scenario it would not be proper to keep the marriage ties alive. learned counsel for the appellant has urged with vehemence that when dissolution of marriage was sought on the ground of desertion alone, the issue of mental cruelty can neither be raised nor can be addressed to. regard being had to the said submission, we are constrained to pose the question whether in a case of the present nature we should require the respondent - husband to amend the petition and direct

the learned family judge to consider the issue of mental cruelty or we should ignore the fetter of technicality and consider the pleadings and evidence brought on record as well as the subsequent facts which are incontrovertible so that the lis is put to rest. in our considered opinion the issue of mental cruelty should be addressed to by this court for the sake of doing complete justice. we think, it is the bounden duty of this court to do so and not to leave the parties to fight the battle afresh after expiry of thirteen years of litigation. dealing with the plea of mental cruelty which is perceptible from the material on record would not affect any substantive right of the appellant. it would be only condoning a minor technical aspect. administration of justice provokes our judicial conscience that it is a fit case where the plentitude of power conferred on this court under article 142 deserves to be invoked, more so, when the ground is statutorily permissible. by such exercise we are certain that it would neither be supplanting the substantive law nor would it be building a structure which does not exist. it would be logical to do so and illogical to refrain from doing so. before we proceed to deal with the issue of mental cruelty, it is appropriate to state how the said concept has been viewed by this court. in vinit saxena v. pankaj pandit [ 8 ], while dealing with the issue of mental cruelty, the court held as follows : - 31. it is settled by a catena of decisions that mental cruelty can cause even more serious injury than the physical harm and create in the mind of the injured appellant such apprehension as is contemplated in the section. it is to be determined on whole facts of the case and the matrimonial relations between the spouses. to amount to cruelty, there must be such wilful treatment of the party which caused suffering in body or mind either as an actual fact or by way of apprehension in such a manner as to render the continued living together of spouses harmful or injurious having regard to the circumstances of the case. xxx xxx xxx35. each case depends on its own facts and must be judged on these facts. the concept of cruelty has varied from time to time, from place to place and from individual to individual in its application according to social status of the persons involved and their economic conditions and other matters. the question whether the act complained of was a cruel act is to be determined from the whole facts and the matrimonial relations

between the parties. in this connection, the culture, temperament and status in life and many other things are the factors which have to be considered. in samar ghosh v. jaya ghosh [ 9 ], this court has given certain illustrative examples wherefrom inference of mental cruelty can be drawn. the court itself has observed that they are illustrative and not exhaustive. we think it appropriate to reproduce some of the illustrations : - ( i ) on consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty. ( ii ) on comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with other party. xxx xxx xxx ( iv ) mental cruelty is a state of mind. the feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty. xxx xxx xxx ( vii ) sustained reprehensible conduct, studied neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty. xxx xxx xxx ( x ) the married life should be reviewed as a whole and a few isolated instances over a period of years will not amount to cruelty. the ill conduct must be persistent for a fairly lengthy period, where [ pic ] the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty. xxx xxx xxx ( xiv ) where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. the marriage becomes a fiction though supported by a legal tie. by refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage ; on the contrary, it shows scant regard for the feelings and emotions of the parties. in such like situations, it may lead to mental cruelty. in the said case the court has also observed thus : - 99. the human mind is extremely complex and human behaviour is equally complicated. similarly human ingenuity has no bound,

therefore, to assimilate the entire human behaviour in one definition is almost impossible. what is cruelty in one case may not amount to cruelty in the other case. the concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system. 100. apart from this, the concept of mental cruelty cannot remain static ; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. what may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. there can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. the prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstances. in vishwanath agrawal, s / o sitaram agrawal v. sarla vishwanath agrawal [ 10 ], while dealing with mental cruelty, it has been opined thus : - 22. the expression cruelty has an inseparable nexus with human conduct or human behaviour. it is always dependent upon the social strata or the milieu to which the parties belong, their ways of life, relationship, temperaments and emotions that have been conditioned by their social status. in the said case, analyzing the subsequent events and the conduct of the wife, who was responsible for publication in a newspaper certain humiliating aspects about the husband, the court held as follows : - in our considered opinion, a normal reasonable man is bound to feel the sting and the pungency. the conduct and circumstances make it graphically clear that the respondent wife had really humiliated him and caused mental cruelty. her conduct clearly exposits that it has resulted in causing agony and anguish in the mind of the husband. she had publicised in the newspapers that he was a womaniser and a drunkard. she had made wild allegations about his character. she had made an effort to prosecute him in criminal litigations which she had failed to prove. the feeling of deep anguish, disappointment, agony and frustration of the husband is obvious. in u. sree v. u. srinivas [ 11 ], the court, taking note of the deposition of the husband that the wife

had consistently ill treated him inasmuch as she had shown her immense dislike towards his sadhna in music and had exhibited total indifference to him, observed as follows : - it has graphically been demonstrated that she had not shown the slightest concern for the public image of her husband on many an occasion by putting him in a situation of embarrassment leading to humiliation. she has made wild allegations about the conspiracy in the family of her husband to get him remarried for the greed of dowry and there is no iota of evidence on record to substantiate the same. this, in fact, is an aspersion not only on the character of the husband but also a maladroit effort to malign the reputation of the family. in k. srinivas rao v. d. a. deepa [ 12 ], while dealing with the instances of mental cruelty, the court opined that to the illustrations given in the case of samar ghosh certain other illustrations could be added. we think it seemly to reproduce the observations : - making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in the court against the spouse would, in the facts of a case, amount to causing mental cruelty to the other spouse. presently, we shall advert to the material on record. it is luminous from it that the wife has made allegations that the sister and brother - in - law of the husband used to interfere in the day - to - day affairs of the husband and he was caught in conflict. the said aspect has really not been proven. it has been brought on record that the sister and brother - in - law are highly educated and nothing has been suggested to the husband in the cross - examination that he was pressurized by his sister in any manner whatsoever. it is her allegation that the sister and brother - in - law of the husband were pressurizing him not to allow the wife to prosecute higher studies and to keep her as an unpaid servant in the house. on a studied evaluation of the evidence and the material brought on record it is demonstrable that the wife herself has admitted that the husband had given his consent for her higher education and, in fact, assisted her. thus, the aforesaid allegation has not been proven. the allegation that the husband was instigated

to keep her at home as an unpaid servant is quite a disturbing allegation when viewed from the spectrum of gender sensitivity and any sensitive person would be hurt when his behavior has remotely not reflected that attitude. the second aspect which has surfaced from the evidence is that the wife had gone to the parental home for delivery and therefrom she went to the hospital where she gave birth to a male child. however, as the evidence would show, the husband despite all his co - operation as a father, when had gone to the hospital to bring the wife and child to his house, she along with the child had gone to her parental house. this aspect of the evidence has gone totally unchallenged. perceived from a social point of view, it reflects the egocentric attitude of the wife and her non - concern how such an act is likely to hurt the father of the child. the next thing that has come in evidence is that the respondent was not invited at the time of naming ceremony. he has categorically disputed the suggestion that he and his family members were invited to the ceremony. it is interesting to note that a suggestion has been given that they did not attend the ceremony as in the invitation card the names of the parents of the husband had not been printed. it has been asserted by the husband that the said incident had caused him tremendous mental pain. view from a different angle, it tantamounts to totally ignoring the family of the husband. another incident deserves to be noted. the wife went to gulbarga to join her studies and the husband was not aware of it and only come to know when one professor told about it. thereafter he went to gulbarga and stayed in a hotel and met the wife in the hostel on both the days. despite his request to come to the house she showed disinclination. when he enquired about the child, he was told that the child was in her mother s house. these are the incidents which are antecedent to the filing of the petition. we have already stated the legal position that subsequent events can be taken note of. after the judgment and decree was passed by the learned family judge, the husband sent a notice through his counsel dated 14. 7. 2004 and intimated her as follows : - according to the operative portion of the order, my client has to welcome you to join him with the child within three months which please note. my client s address is dr. b. v. ravi, m. d., residin

##g in no. 428. 2nd across, 6th main, 3rd stage, 3rd block, basaveshwaranagar, bangalore - 79 and his telephone no. 23229865. in obedience to the hon ble court order, you called upon to join dr. b. v. ravi to the above said address any day after 18th of july, 2004, as this period upto 17th is inauspicious because of ashada. as it appears, she did not join and the husband was compelled to send a telegram. thereafter, on 13. 8. 2004 a reply was sent on her behalf that she would be joining after 15. 8. 2004 but the exact date was not intimated. thereafter, on 14. 8. 2004 a reply was sent to the legal notice dated 14. 7. 2004 sent by the husband. it is appropriate to reproduce the relevant two paragraphs : - in this context, we hereby inform you that our client will be coming to join your client in the above said address along with the child on sunday the 22nd august 2004 as the auspicious nijashravana month commences from 16th august 2004. further our client expects reasonable amount of care and cordiality from your client s side. please ensure the same. the purpose of referring to these communications is that despite obtaining decree for restitution of conjugal rights the wife waited till the last day of the expiration of the period as per the decree to join the husband. there may be no legal fallacy, but the attitude gets reflected. the reply also states that there is expectation of reasonable amount of care and cordiality. this reflects both, a sense of doubt and a hidden threat. as the facts unfurl, the wife stays for two months and then leaves the matrimonial home and lodges the first information report against the husband and his mother and sister for the offences punishable under sections 498a, 506 / 34 of the indian penal code and under the provisions of dowry prohibition act. the husband suffers a day s custody and the mother and the sister availed anticipatory bail. the high court has taken note of all these aspects and held that the wife has no intention to lead a normal marital life. that apart, the high court has returned a finding that the marriage has irretrievably been broken down. of course, such an observation has been made on the ground of conduct. this court in certain cases, namely

, g. v. n. kameswara rao v. g. jabilli [ 13 ], parveen mehta v. inderjit mehta [ 14 ], vijayakumar r. bhate v. neela vijayakumar bhate [ 15 ], durga prasanna tripathy v. arundhati tripathy [ 16 ], naveen kohli v. neelu kohli [ 17 ] and samar ghosh v. jaya ghosh ( supra ), has invoked the principle of irretrievably breaking down of marriage. for the present, we shall restrict our delineation to the issue whether the aforesaid acts would constitute mental cruelty. we have already referred to few authorities to indicate what the concept of mental cruelty means. mental cruelty and its effect cannot be stated with arithmetical exactitude. it varies from individual to individual, from society to society and also depends on the status of the persons. what would be a mental cruelty in the life of two individuals belonging to particular strata of the society may not amount to mental cruelty in respect of another couple belonging to a different stratum of society. the agonized feeling or for that matter a sense of disappointment can take place by certain acts causing a grievous dent at the mental level. the inference has to be drawn from the attending circumstances. as we have enumerated the incidents, we are disposed to think that the husband has reasons to feel that he has been humiliated, for allegations have been made against him which are not correct ; his relatives have been dragged into the matrimonial controversy, the assertions in the written statement depict him as if he had tacitly conceded to have harboured notions of gender insensitivity or some kind of male chauvinism, his parents and he are ignored in the naming ceremony of the son, and he comes to learn from others that the wife had gone to gulbarga to prosecute her studies. that apart, the communications, after the decree for restitution of conjugal rights, indicate the attitude of the wife as if she is playing a game of chess. the launching of criminal prosecution can be perceived from the spectrum of conduct. the learned magistrate has recorded the judgment of acquittal. the wife had preferred an appeal before the high court after obtaining leave. after the state government prefers an appeal in the court of session, she chooses

to withdraw the appeal. but she intends, as the pleadings would show, that the case should reach the logical conclusion. this conduct manifestly shows the widening of the rift between the parties. it has only increased the bitterness. in such a situation, the husband is likely to lament in every breath and the vibrancy of life melts to give way to sad story of life. from this kind of attitude and treatment it can be inferred that the husband has been treated with mental cruelty and definitely he has faced ignominy being an associate professor in a government medical college. when one enjoys social status working in a government hospital, this humiliation affects the reputation. that apart, it can be well imagined the slight he might be facing. in fact, the chain of events might have compelled him to go through the whole gamut of emotions. it certainly must have hurt his self - respect and human sensibility. the sanguine concept of marriage presumably has become illusory and it would not be inapposite to say that the wife has shown anaemic emotional disposition to the husband. therefore, the decree of divorce granted by the high court deserves to be affirmed singularly on the ground of mental cruelty. presently, we shall proceed to deal with grant of maintenance. both the appellant and the respondent are doctors and have their respective jobs. the son is hardly sixteen years old and definitely would require financial support for education and other supportive things to lead a life befitting his social status. the high court, while granting a decree for divorce should have adverted to it. however, we do not think it appropriate to keep anything alive in this regard between the parties. the controversy is to be put to rest on this score also. considering the totality of circumstances, the status the appellant enjoys and the strata to which the parties belong, it becomes the bounden duty of the respondent to provide for maintenance and education for the son who is sixteen years old. at this juncture, we may note that a proceeding was initiated before the learned principal judge, family court, bangalore and in the said proceeding the learned principal judge passed the following order : - matter is settled before the mediation centre where in parties have entered into a memorandum of settlement. contents of the memorandum of settlement are admitted by the parties. court is satisfied that the same is voluntary. as per the terms of settlement para 5 clause ( i ) petitioner has deposited rs. 3, 00, 000 /

- in the name of minor child in karnataka bank, copy of fixed deposit receipt and r. d. account pass book are filed along with memo. hence petition is allowed in terms of settlement. memorandum of settlement shall be a part of the decree. learned counsel for the respondent would submit that the amount has been settled. though there has been a settlement of rs. 3, 00, 000 / - yet that was at a different time and under different circumstances. the present appeal was pending. the duty of this court is to see that the young son born in the wedlock must get acceptable comfort as well as proper education. it is the duty of the court also to see that a minor son should not live in discomfort or should be deprived of requisite modern education. we are conscious, the appellant is earning but that does not necessarily mean that the father should be absolved of his liability. regard being had to the social status and strata and the concept of effective availing of education we fix a sum of rs. 25, 00, 000 / - ( twenty five lacs ) excluding the amount already paid towards the maintenance and education of the son. the said amount shall be deposited by the respondent within a period of six months before the learned principal judge, family court at bangalore and the amount shall be kept in a fixed deposit in a nationalized bank in the joint account of the appellant and the minor son so that she can draw quarterly interest and expend on her son. after the son attains majority the joint account shall continue and they would be at liberty to draw the amount for the education or any urgent need of the son. with the aforesaid directions, we affirm the decree for divorce passed by the high court. the appeal stands disposed of accordingly but without any order as to costs...................................................... j. [ sudhansu jyoti mukhopadhaya ]..................................................... j. [ dipak misra ] new delhi ; june 30, 2014. - - - - - - - -

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v. gopala gowda, j. these appeals are filed by the convicted accused - appellants as they are aggrieved by the conviction and sentences awarded to them by the special court ( pota ), crl. a. nos. 2295 - 2296 of 2010 - 2 - and confirmed by the high court of gujarat for the offences punishable under the provisions of the indian penal code, 1860 ( hereinafter ipc ), the arms act, 1959, the explosive substances act, 1908 and the prevention of terrorism act, 2002 ( hereinafter pota ) as per list in para 2 below, for the attack on the akshardham temple in gandhinagar between the afternoon of 24. 09. 2002 and early morning of 25. 09. 2002, wherein 33 people were killed and more than 85 people were injured. 2. the following list outlines the charges against each of the accused and the conviction and sentences meted out to them by the special court ( pota ), ahmedabad, and upheld by the high court of gujarat. accused no. 1 is not in appeal before us. the appellant nos. 1 - 5 before us will hereinafter be referred to as per their position as accused i. e a - 2 to a - 6. appellant no. 4, abdullamiya yasinmiya kadri ( a - 5 ) has crl. a. nos. 2295 - 2296 of 2010 - 3 - already undergone 7 years out of the 10 years of sentence awarded by the learned judge, special court ( pota ) and by order dated 03. 12. 2010, this court directed him to be released to the satisfaction of the trial court. the following list outlines the charges, conviction and sentences awarded to each of the accused - appellants. all the accused persons had been charged with offences under the following sections by the learned judge, special court ( pota ) : 1. section 120b of the ipc. 2. section 120b of the ipc read with sections 121, 123, 124a, 153a, 302 and 307 of the ipc. 3. section 120b of the ipc read with sections 25 ( 1aa ) 27 and 29 of the arms act. 4. section 120b of the ipc read with sections 3, 4 and 6 of the explosive substances act. 5. section 120b of the ipc read with sections 3 ( 1 ) ( a ) and ( b ), 3 ( 3 ), 4

, 20 and 21 ( 2 ) ( b ) of the pota. 6. additionally, a - 2 had been charged with offence under section 452 of the ipc ( for entering akshardham illegally ). 7. additionally, a - 6 had been charged under section 135 ( 1 ) of the bombay police act, 1951 ( for illegally possessing arms and explosives despite notification, in force, issued by gandhinagar district police official ). the special court ( pota ) framed the aforesaid charges and convicted and sentenced the accused persons as per nature of offences detailed hereunder : altaf malek ( hereinafter a - 1 ) gathered the indian muslims who had gone to saudi arabia. associated with banned organizations like lashkar - e - toiba. collected funds from jaish - e - mohammed. convicted and sentenced under : section 22 ( 1 ) of pota. rigorous imprisonment for 5 years with a fine of rs. 5, 000 / - and in default of payment of fine, simple imprisonment for 6 months. he was acquitted of rest of the charges. crl. a. nos. 2295 - 2296 of 2010 - 5 - adambhai ajmeri ( hereinafter a - 2 ) talked to locals to get idea about city, and to get idea about lodging etc. they took him to a - 4 and a - 5. received money through havala. meeting on 24. 06. 2002 with witness at g royal hotel, hyderabad. absconding accused gave him rs 3, 500 picked up the two assailants ( hereinafter referred to as the fidayeens ) from the railway station and gave them shelter. moved around in an auto rickshaw and showed the fidayeens places around the city, where strikes could be done and also arranged for their night stay at his brother s place. was present at akshardham at the time of the incident and exited when the firing started. convicted and sentenced under : section 3 ( 3 ) of pota - life imprisonment and a fine of rs. 10, 000 / - and in case of default, simple imprisonment for 2 years. section 3 ( 3 ) read with section 5 of pota - rigorous imprisonment for 10 years and a fine of rs. 5, 000 / - and in case of default, simple imprisonment for 1 year. section 22 ( 2 ) ( a ) and ( b ) of pota - rigorous imprisonment for 10 years and fine of rs.

20, 000 / - and in case of default, simple imprisonment for 1 year. section 120b ipc read with section 4 of explosive substances act - rigorous imprisonment for 10 crl. a. nos. 2295 - 2296 of 2010 - 6 - years and fine of rs. 10, 000 / - and in case of default, simple imprisonment for 2 years. section 120b ipc read with sections 3 and 6 of explosive substances act - life imprisonment and fine of rs. 20, 000 / -. section 120b ipc read with section 302 ipc death penalty ( hanging by neck till death ) and fine of rs. 25, 000 / -. section 120b ipc read with section 307 ipc life imprisonment and fine of rs. 20, 000 / - and in case of default, simple imprisonment for 1 year. section 120b ipc read with section 27 of arms act - rigorous imprisonment for 7 years and fine of rs. 10, 000 / - and in case of default of fine, simple imprisonment for 1 year. the accused was acquitted of the rest of the charges. mohammed salim hanif sheikh ( hereinafter a - 3 ) gathered indian muslims working in saudi arabia at his home and showed them instigating videos. is a member of jaish - e - mohammed and lashkar - e - toiba. made instigating speeches with the intention of endangering the unity and integrity of india. became a member of jaish - e - mohammed and took funding from them. convicted and sentenced under : section 3 ( 3 ) of pota - life imprisonment and a fine of rs. 10, 000 / - and in case of default, simple imprisonment for 2 years. section 3 ( 3 ) read with section 5 of pota, rigorous imprisonment for 10 years and a fine of rs. 5, 000 / - and in case of default, simple imprisonment for 1 year. section 20 of pota - rigorous imprisonment for 5 years and fine of rs. 20, 000 / - and in case of default, rigorous imprisonment for 1 year. section 21 ( 2 ) ( b ) of pota - rigorous imprisonment for 10 years and a fine of rs. 10, 000 / - and in case of default, simple imprisonment for 1 year. section 22 ( 1 ) ( a ) of pota - rigorous imprisonment for 10 years and a fine of rs. 20, 000 / - and in case of default, simple imprisonment for 2 years. section 120b ipc read

with section 4 of explosive substances act - rigorous imprisonment for 10 years and a fine of rs. 10, 000 / - and in case of default, simple imprisonment for 2 years. section 120b ipc read with sections 3 and 6 of explosive substances act - life imprisonment and fine of rs. 20, 000 / -. section 120b ipc read with section 302 ipc life imprisonment till his natural life ( till he is alive ) and a fine of rs. 25, 000 / -. section 120b ipc read with section 307 ipc life imprisonment and fine of rs. 20, 000 / - and in case of default, simple imprisonment for 1 year. section 120b ipc read with section 121a ipc rigorous imprisonment for 10 years and a fine of rs. 5, 000 / - and in case of default, simple imprisonment for 1 year. section 120b ipc read with section 153a ipc rigorous imprisonment for 3 years and a fine of rs. 5, 000 / - and in case of default, simple imprisonment for 6 months. section 120b ipc read with section 27 of arms act, rigorous imprisonment for 7 years and a fine of rs. 10, 000 / -, and in case of default, simple imprisonment for 1 year. the accused was acquitted of the rest of the charges. abdul qaiyum muftisaab mohmed bhai ( hereinafter a - 4 ) gave shelter to the fidayeens. wrote the two urdu letters recovered from the fidayeens, which spoke of instigating violence and atrocities and communal riots. convicted and sentenced under : section 3 ( 3 ) of pota - life imprisonment and a fine of rs. 10, 000 / - and in default of payment, simple imprisonment for 2 years. section 3 ( 3 ) read with section 5 of pota - rigorous imprisonment for 10 years and a fine of rs. 5, 000 / - in default of payment of fine, simple imprisonment for 1 year. section 120b ipc read with section 4 of explosive substances act - rigorous imprisonment for 10 years and a fine of rs. 10, 000 / - in default of payment of fine, simple imprisonment for 2 years. section 120b ipc read with sections 3 an 6 of explosive substances act - life imprisonment and a fine of rs. 20, 000 / -, in default of payment of fine to recover the amount in accordance with law. section 120b ipc read with section 302 ipc death penalty ( hanging by

neck till death ) and a crl. a. nos. 2295 - 2296 of 2010 - 9 - fine of rs. 25, 000 / - in default of payment of fine to recover the amount in accordance with law. section 120b ipc read with section 307 ipc life imprisonment and fine of rs. 20, 000 / - in default of payment of fine, a simple imprisonment for 1 year. section 120b ipc read with section 153a ipc rigorous imprisonment for 3 years and a fine of rs. 5, 000 / - in default of payment of fine, a simple imprisonment for 6 months. section 120b ipc read with section 27 ipc of arms act, rigorous imprisonment for 7 years and a fine of rs. 10, 000 / -, in default of fine a simple imprisonment for 1 year. section 120b ipc read with section 121a ipc rigorous imprisonment for 10 years and a fine of rs. 5, 000 / - in default of payment of fine, a simple imprisonment for 1 year. the accused was acquitted of the rest of the charges. accused - 5 abdullamiya yasinmiya ( hereinafter a - 5 ) member of jaish - e - mohammed and lashkar - e - toiba. gave shelter to the fidayeens. dropped them near kalur railway station, had also put them in an ambassdor car to take them to the temple. convicted and sentenced section 3 ( 3 ) of pota - rigorous imprisonment for 10 years and a fine of rs. 10, 000 / - and in default of payment, simple imprisonment for 2 years. the accused was acquitted of the rest of the charges. accused - 6 chand khan ( hereinafter a - 6 ) met the dead terrorists, also bought an ambassador car worth rs 40, 000 and made secret compartment for storing weapons and explosives. came from ahmedabad to bareilly with explosives, moved the fidayeens in an auto, and helped to transfer the weapons. received rs 30, 000 / - from zuber ( a dead terrorist, killed in a separate encounter ) convicted and sentenced under : section 3 ( 3 ) of pota - life imprisonment and a fine of rs. 10, 000 / - in default of payment of fine, simple imprisonment for 2 years. section 3 ( 1 ) of pota, life imprisonment and a fine of rs. 25, 000 / - in default of payment of fine, the same shall

be recovered in accordance with law. section 3 ( 3 ) read with section 5 of pota, rigorous imprisonment for 10 years and fine of rs. 5, 000 / - in default of payment, simple imprisonment for 1 year. section 120b ipc read with sections 3 an 6 of explosive substances act - life imprisonment and a fine of rs. 20, 000 / -, in default of payment of fine to recover the amount in accordance with law. section 120b ipc read with section 4 of explosive substances act - rigorous imprisonment for 10 years and a fine of rs. 10, 000 / - in default of payment of fine, simple imprisonment for 2 years. crl. a. nos. 2295 - 2296 of 2010 - 11 - section 120b ipc read with section 302 ipc death penalty ( hanging by neck till death ) and a fine of rs. 25, 000 / - in default of payment of fine to recover the amount in accordance with law. section 120b ipc read with section 307 ipc life imprisonment and fine of rs. 20, 000 / - in default of payment of fine, simple imprisonment for 1 year. section 120b ipc read with section 25 ( 1aa ) of arms act - rigorous imprisonment for 7 years and a fine of rs. 10, 000 / -, in default of fine a simple imprisonment for 2 years. the accused was acquitted of the rest of the charges. 3. the aforesaid sentences imposed upon each accused person were ordered to run concurrently. the accused persons were allowed to set off the sentences for the time spent in custody, wherever applicable. various sentences of rigorous imprisonment, life imprisonment and death sentence as detailed in the list above were passed against the accused persons by the special court ( pota ) in pota case no. 16 of 2003 by the judgment dated 01. 07. 2006, which was affirmed by the high court of gujarat at ahmedabad by the impugned judgment and order dated 01. 06. 2010 in crl. a. nos. 2295 - 2296 of 2010 - 12 - criminal confirmation case no. 2 of 2006 along with criminal appeal nos. 1675 of 2006 and 1328 of 2006. 4. aggrieved by the said impugned judgment and order of the high court of gujarat, all the accused persons except a - 1 have appealed before this court challenging the correctness of their conviction and sentences imposed upon them, urging various legal and factual grounds in support of the questions of law raised by them. 5. certain

relevant facts are stated herein below for the purpose of examining the correctness of the findings and reasons recorded by the high court in the impugned judgment and order while affirming the findings and reasons recorded in the judgment and order passed by the special court ( pota ). the facts of the incident leading up to the case, the arrest of the crl. a. nos. 2295 - 2296 of 2010 - 13 - accused persons and their trial and conviction are detailed below : on 24. 09. 2002 at about 4. 30 p. m., two persons armed with ak - 56 rifles, hand grenades etc. entered the precincts of the swaminarayan akshardham temple situated at gandhinagar, gujarat from gate no. 3. they fired indiscriminately towards the children, games and rides and started throwing hand grenades. while continuing the attack, they reached gate no. 2 of the temple and fired at the worshippers, devotees, volunteers and visitors and then proceeded towards the main building. since the main door of the temple was locked, they moved towards the sachchidanand exhibition hall, killing and injuring women, children and others. thereafter, immediately crpf personnel, deputy inspector general ( dig ), gujarat state and other senior police officers along with srp commandos rushed to the place of offence to return the fire. ambulances were called and other police forces were crl. a. nos. 2295 - 2296 of 2010 - 14 - also urgently called at the place. the team led by mr. v. b. rabari - inspector general of police, mr. r. b. brahambhatt - deputy superintendent of police, gandhinagar and four other special reserve police commandos climbed on the roof. by that time, the terrorists ( fidayeens ) once again started firing. a fierce gun battle ensued, and there was also a bomb blast. 6. in the meantime, a team of national security guard ( nsg ) commandos was summoned from new delhi. they arrived by a chartered flight and took control at about 12. 00 at midnight. after understanding the topography of the area, they began the counter attack against the fidayeens. exchange of firing continued and lasted for nearly 5 hours which went on into the wee hours of 25. 9. 2002

. eventually both of them were killed in the early morning hours as they succumbed to the injuries received in the said operation. it is crl. a. nos. 2295 - 2296 of 2010 - 15 - the further case of the prosecution that a large quantity of fire arms and explosive substances were carried by the two fidayeens. some of the explosives were seized along with other articles from the premises. the attack resulted in the killing of 33 persons, including nsg commandos, personnel from the state commando force and three other persons from srp group. nearly 86 persons, including 23 police officers and jawans were grievously injured. those who were injured or killed during the attack were removed to sola civil hospital and to civil hospital, ahmedabad. 7. a complaint was lodged by the then acp mr. g. l. singhal, ( prosecution witness ( hereinafter pw ) - 126 ) on 24. 09. 2002 at the gandhinagar sector 21 police station. after the possession of the temple premises was handed over from nsg commandos to the state police, an fir was registered being ist cr no. 314 of crl. a. nos. 2295 - 2296 of 2010 - 16 - 2002 on 25. 09. 2002 for the offences punishable under sections 120 - b, 302, 307, 153 - a, 451 of the ipc by pw - 126. a report under section 157 of the code of criminal procedure ( hereinafter crpc ) was also prepared. the same was lodged against the unknown persons aged between 20 to 25 years and the investigation was handed over to police inspector mr. v. r. toliya ( pw - 119 ) of the local crime branch, gandhinagar. it is the case of the prosecution that some articles were received from brigadier raj sitapati, head of the nsg, which were collected from the clothes of the dead bodies of the fidayeens, and according to them, these articles included two letters written in urdu language, allegedly found in the pocket of each one of the fidayeens. 8. the investigation of the crime continued for sometime under the said police inspector and crl. a. nos. 2295 - 2296 of 2010 - 17 - thereafter, the anti terrorist squad ( ats ) was directed by the director general of police, state of gujarat to take over the investigation of the case

. the investigation continued but nothing fruitful came out of the attempt of the investigating officer to trace the accused persons who were involved in the conspiracy and other offences committed by two fidayeens. the investigation of the case was transferred to acp singhal ( pw - 126 ) of the crime branch who was the complainant in the case, on 28. 08. 2003 at the direction of the dgp from mr. k. k. patel of ats with 14 files, each with index. 9. on 29. 08. 2003 at 2 p. m., a - 1 to a - 5 were arrested by pw - 126 and the matter was investigated further. the prosecution alleged that the criminal conspiracy was hatched at saudi arabia, hyderabad, ahmedabad and jammu and kashmir by some clerics, along with a few others, as they had become spiteful after the crl. a. nos. 2295 - 2296 of 2010 - 18 - incidents of riots which had taken place in the state of gujarat after the godhra train burning incident in 2002. subsequently, a - 6 was also taken into custody and arrested by the gujarat police on 12. 09. 2003 from the state of jammu and kashmir. it is also the case of the prosecution that after investigation, the matter was concluded and the charge sheet was filed against all the six accused persons by the crime branch, after obtaining necessary sanction from the state government for the purpose of taking cognizance of the offence in compliance with section 50 of pota. in the said charge sheet, 26 persons were shown as absconding accused. the five accused persons, who were arrested on 29. 08. 2003, remained in the police custody, which had been sought from the judicial magistrate, gandhinagar on 29. 08. 2003. provisions of pota were invoked by the police on 30. 08. 2003. the chargesheet was filed before the designated court constituted under section 23 of crl. a. nos. 2295 - 2296 of 2010 - 19 - pota, on 25. 11. 2003. it is further the case of the prosecution that the chargesheet was filed by the investigating officer after obtaining necessary sanction order as required under section 50 of pota from the government of the state of gujarat vide sanction order dated 21. 11. 2003 [ exhibit ( hereinafter ex. ) 498 ]. 10. it is the case of the prosecution that the

confessional statements of the accused persons were recorded by the superintendent of police, sanjaykumar gadhvi ( pw - 78 ), as provided under section 32 of the pota by following the mandatory procedure. 11. there were 376 witnesses shown in the chargesheet. out of those, 126 witnesses were examined by the prosecution to prove the charges against the accused persons. the prosecution witnesses were examined on various dates and through them, various crl. a. nos. 2295 - 2296 of 2010 - 20 - exs. namely, 117 to 679 were marked. the details of the names of the prosecution witnesses and the dates of examination and the marking of exhibits to them are described in the judgment passed by the special court ( pota ) and the same need not be adverted to in this judgment as it is unnecessary. 12. the special court ( pota ) had formulated 8 points for its consideration and answered the same in the judgment by accepting the case of the prosecution and passed an order of conviction against all the accused persons and sentenced a - 2, a - 4 and a - 6 to death, a - 3 to life imprisonment, a - 1 to rigorous imprisonment for 5 years and a - 5 to rigorous imprisonment for 10 years. 13. a reference was made to the high court of gujarat under section 366 of the crpc for confirmation of the death sentence imposed upon a - 2, a - 4 and a - 6. all the crl. a. nos. 2295 - 2296 of 2010 - 21 - accused persons appealed before the high court against their conviction and sentences imposed on them. 14. the division bench of the high court, after adverting to the charges framed against each one of accused persons under the provisions of pota, explosive substances act, arms act and ipc, and the punishment imposed for each one of the offences under the aforesaid provisions of the acts and code, confirmed the order passed by the special court ( pota ). briefly stated, the high court held that the attack was an act of retaliation against the incidents of communal riots which took place in the state of gujarat in the months of march and april, 2002 during which several muslim persons had lost their lives and properties. the high court stated : 15. the high court further held that a criminal conspiracy was hatched to strike terror amongst the hindus in the state of gujarat. the accused persons and the absconding accused, were in conniva

##nce, had gathered the indian muslims working in the towns of jiddah, shiffa and riyadh of saudi arabia at the residence of a - 3. a - 1, a - 3 and a - 5 and the absconding accused nos. 3 to 5 and 12 to 22, who at the instance of the isi of pakistan became members of the terrorist crl. a. nos. 2295 - 2296 of 2010 - 23 - outfit jaish - e - mohammad, and collected funds for it to spread terror in the state of gujarat. they showed the cassettes of the loss caused to the muslims in the state of gujarat and the gruesome photos and the videos of the dead bodies of muslim men, women and children, at the residence of a - 3 ; distributed the cassettes and made enticing statements to damage the unity and integrity of india and to cause loss to the person and property of hindu people. it was also observed by the high court that to carry out the criminal conspiracy, the absconding accused no. 16 visited the relief camps run at ahmedabad during the communal riots. 16. the statements of the injured witnesses were examined, which is also adverted to in the impugned judgment and the high court stated that the casualties are also proved by the postmortem notes exs. 170 and 171 and by examining various doctors and prosecution witnesses. 17. the high court in the impugned judgment also noted that there is a reference made to the injuries sustained by the individuals which is proved by the medical certificates and the same have been proved by the doctors. the high court also referred to handing over of the list ( ex. 524 ), recovered from the bodies of fidayeens, including notes in urdu, by maj. jaydeep lamba ( pw - 91 ) to pw - 126 under panchnama ( ex. 440 ) and the same is proved by the panch - vinodkumar valjibhai udhecha ( pw - 74. ) reference of recovery of white coloured ad gel pen from the scene of offence under panchnama ( ex. 650 ) is proved by the panch - hareshbhai chimanlal shah ( pw - 11 : ex. 649 ). the said pen was sent to the forensic science laboratory ( in short fsl ) under panchnama ( ex. 621 ). the

fsl report ( ex. 668 ) confirmed that the urdu writings ( ex. 658 ) were in the same ink as that of the muddamal pen. there was also reference made of recovery of muddamal articles in the afternoon of 25. 9. 2002 ( 84 in number ) from the temple crl. a. nos. 2295 - 2296 of 2010 - 25 - precincts under panchnama ( ex. 396 ) which is proved by panch - prakashinh ratansinh waghela ( pw - 71 : ex. 395 ). there was further reference of recovery of empty bullet of rifle - 303, rifle butt no. 553, disposal of left out hand grenades, recovery of empties from the fire arms of the srp jawans, the empties produced by i. g. shri v. v. rabari, production and sealing of dongri of the police constable, recovery of bullets from the injured witnesses, production of clothes of injured psi - digvijaysinh chudasama and injured witness, the splinters of hand grenades and bullets recovered from the injured and these are proved by the panchnama exs. 553, 106, 121, 107, 596, 108 597, 109, 110, 111 and 160. also, the reference of recovery of the disputed signature of witness - abdul wahid ( pw - 56 ) in the entry register of hotel g. royal lodge, naampalli, hyderabad and the collection of his specimen signature collected under panchnama ( ex. 583 ) is proved by panch - manubhai chhaganlal thakker ( pw - crl. a. nos. 2295 - 2296 of 2010 - 26 - 101 : ex. 581 ) and collection of the natural signature of the witness abdul wahid ( pw - 56 ) under panchnama ( ex. 684 ) is proved by the investigating officer acp singhal ( pw - 126 : ex. 679 ). reference was made to the panchnama ( ex. 682 ) proved by panch - dipakshinh ghanshyamsinh chudasama ( pw - 62 : ex. 344 ) regarding seizure of auto - rickshaw no. grw - 3861 wherein the fidayeens visited various places and the route they had taken in auto -

rickshaw on 22. 09. 2002 and the route to akshardham temple on 24. 09. 2002, was traced by a - 2. reference was also made of the house of abbas ( the brother of a - 2 ) in which fidayeens and ayub ( absconding accused no. 23 ) were provided lodging, was identified by a - 2 under panchnama ( ex. 580 ) proved by the panch - jignesh arvindbhai shrimali ( pw - 100 : ex. 579 ). there is also reference of seizure of panchnama ( ex. 336 ) of the passport and a piece of paper containing telephone numbers, a telephone diary and electricity bill of february, 2003 of a - 2 proved crl. a. nos. 2295 - 2296 of 2010 - 27 - by the panch - santosh kumar r. pathak ( pw - 59 : ex. 335 ). the panchnama ( ex. 446 ) of collection of the natural signature of a - 2 is proved by the panch - mukeshbhai natwarlal marwadi ( pw - 75 : ex. 445 ) and recovery of specimen handwriting of a - 2 under panchnama ( ex. 448 ) is proved by panch - dineshbhai chunaji parmar ( pw - 76 : ex. 447 ). there is also panchnama of seizure of recovery of railway ticket ( ex. 589 ) from ahmedabad to mumbai dated 22. 04. 2002, communication regarding cancellation of ticket dated 22. 04. 2002, telephone charge slips and the expense account for mattresses, fan, petrol, food and hotel from the residence of a - 2 has been proved by the panch - navinchandra bechardas kahaar ( pw - 103 : ex. 585 ). there is also seizure of the accounts diary from mehboob - ellahi abubakar karim ( pw - 82 ) to prove receipt of rs. 10, 000 / - and rs. 20, 000 / - sent from riyadh and paid to the a - 2 under the code jihad under panchnama ( ex. 481 ), which is proved by the panch - bharatbhai babulal parmar ( pw - 102 : ex. 584 ). crl. a. nos. 2295 - 2296

of 2010 - 28 - there is recovery of natural handwriting ( ex. 613 ) of a - 4 from a diary identified by him, which was recovered under panchnama ( ex. 309 ) and proved by the panch - ashok manaji marwadi ( pw - 49 : ex. 308 ). collection of the specimen writing ( ex. 698 ) of a - 4 under panchnama ( ex. 334 ) is proved by the panch - arvindbhai jehabhai chavda ( pw - 58 : ex. 333 ). the high court stated that the handwriting expert jagdishbhai jethabhai patel ( pw - 89 : ex. 507 ) has proved that the disputed writings marked a / 5 / a and a / 5 / b ( urdu writings ex. 658 ) were the same as the natural handwriting and the specimen writing of a - 4. the report ( ex. 511 ), which is the opinion of the handwriting expert, is also confirmed by the expert report ( mark - t ) of r. k. jain, directorate of forensic sciences, hyderabad and in the presence of the panch - bhikhaji bachuji thakore ( pw - 6 : ex. 343 ). under panchnama ( ex. 681 ), a - 4 and a - 5 identified the place where the last namaaz was performed for the fidayeens crl. a. nos. 2295 - 2296 of 2010 - 29 - and the place where the weapons were packed. the witness identified a - 4 and a - 5 in the court. reference was made to the recovery of muddamal - ambassador car no. kmt - 413 from the compound of sog camp, srinagar, j & k. the existence / disclosure of concealed cavity under the rear seat of the car in panchnama ( ex. 671 ), is proved by the police inspector - shabirahmed ( pw - 123 : ex. 670 ) and the assistant sub - inspector gulammohamad dar ( pw - 124 : ex. 673 ). reference was made of the disputed handwriting of yusufbhai valibhai gandhi ( pw - 57 ) from entry no. 81 dated 23. 09. 2002 and his natural handwriting from entry nos. 224, 225 and 226 of 24. 05. 2003

and 26. 05. 2003 from the passenger register of gulshan guest house in panchnama ( exs. 317 and 319 ) which have been proved by the panch - poonambhai narshibhai parmar ( pw - 54 : ex. 318 ) and panch - ashok sahadevbhai kahaar ( pw - 53 : ex. 316 ) respectively. the panch - poonambhai narshibhai has also proved recovery of the disputed signature of a - 6, from column no. 13 of crl. a. nos. 2295 - 2296 of 2010 - 30 - the aforesaid entry no. 81. the collection of specimen handwriting of yusuf gandhi ( pw - 57 ) in panchnama ( ex. 321 ) is proved by panch - sajubha adarji thakore ( pw - 55 : ex. 320 ). the high court has made further reference that a - 6 identified std booths used by him during his stay in ahmedabad on 23. 09. 2002 and 24. 09. 2002 under panchnama ( ex. 342 ) proved by panch - prahlad bagadaji marwadi ( pw - 60 : ex. 341 ). further, there is reference to a - 6, who identified the places visited by him, and the way to gulshan guest house from railway station under panchnama ( ex. 591 ) proved by panch - natwarbhai fakirchand kahar ( pw - 104 : ex. 590 ). reference is also made by the high court of the taxi driver, rajnikant ( rajuji ) thakore, who identified the dead bodies of the fidayeens under panchnama ( ex. 130 ) which is proved by panch - bhupatsinh chandaji waghela ( pw - 5 : ex. 129 ). the route of the fidayeens from kalupur railway station to akshardham gate no. 3 is identified by taxi driver rajnikant crl. a. nos. 2295 - 2296 of 2010 - 31 - thakore ( pw - 68 ) under panchnama ( ex. 131 ) proved by panch - bhupatsinh andaji waghela ( pw - 5 : ex. 129 ). 18.

from paragraph 75 onwards in the impugned judgment, the division bench of the high court has referred to the judgments of this court. reliance was placed on the cases of s. n. dube v. n. b. bhoir & ors. 1 and lal singh etc. etc. v. state of gujarat & anr. 2 which made reference to the confessional statement recorded under section 15 of terrorist and disruptive activities ( prevention ) act, 1987 ( hereinafter tada ), wherein this court rejected the contention urged on behalf of the accused persons that the confessional statements were inadmissible in evidence because ( a ) the statements were recorded by the investigating officer or the officers supervising the investigation ( b ) the accused persons were not produced before the judicial magistrate immediately after recording the 1 ( 2000 ) 2 scc 254 2 ( 2001 ) 3 scc 221 crl. a. nos. 2295 - 2296 of 2010 - 32 - confessional statements and ( c ) guidelines laid down in the case of kartar singh v. state of punjab3 were not followed. reliance was also placed by the high court on the case of state of maharashtra v. bharat chaganlal raghani & ors. 4, wherein this court held the confessional statements of the accused persons to be admissible in evidence. the court further held that confessional statements having been proved to be voluntarily made and legally recorded, can be used against all or some of the accused persons in the light of other evidence produced in the case. 19. the high court referring to the broad principles covering the law of conspiracy as laid down in the case of state of tamil nadu v. nalini & ors. 5, and also referring to section 120 - a of ipc which constitutes the offence of criminal conspiracy, held 3 ( 1994 ) 3 scc 569 4 ( 2001 ) 9 scc 1 5 ( 1999 ) 5 scc 253 crl. a. nos. 2295 - 2296 of 2010 - 33 - that the acts subsequent to achieving an object of criminal conspiracy may tend to prove that a particular accused person was a party to the conspiracy. conspiracy is hatched in private or in secrecy and it is rarely possible to establish a conspiracy by direct evidence. usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused persons. further, reference was also made to the judgment in the case of state of w. b.

v. mir mohammad omar & ors. 6, wherein it was held that the courts should bear in mind the time constraints on the police officers in the present system, the ill equipped machinery they have to cope with and the traditional apathy of respectable persons towards them. 6 ( 2000 ) 8 scc 382 crl. a. nos. 2295 - 2296 of 2010 - 34 - the high court also relied upon the case of rotash v. state of rajasthan7, wherein this court held that the investigation was not foolproof but that defective investigation would not lead to total rejection of the prosecution case. further, reference of state of m. p. v. mansingh8 in the case of rotash ( supra ) in support of the aforesaid proposition of law. 20. the division bench of the high court also referred to the evidence of asfaq abdulla bhavnagari ( pw - 50 : ex. 312 ) who had worked at riyadh in saudi arabia and whose statement was recorded by the police, which according to the prosecution, led to the revelation of the entire conspiracy. 21. the high court further placed reliance upon the statement of mohammed munaf hajimiya shaikh ( pw - 52 : ex. 315 ) who gave evidence against a - 2, a - 4 and a - 5 7 ( 2006 ) 12 scc 64 8 ( 2003 ) 10 scc 414 crl. a. nos. 2295 - 2296 of 2010 - 35 - regarding running of relief camp in the state of gujarat and against his brother abdul rashid sulemanbhai ajmeri ( absconding accused no. 4 ). according to the witness, a - 5 and a - 4 advised a - 2 to go ahead with the plan and gave telephone number of one nasir doman to a - 2. he identified a - 2, a - 4 and a - 5 in the court. 22. the high court also placed reliance on the statement of abdul wahid ( pw - 56 : ex. 325 ), who admitted that on 24. 04. 2002 he had gone to hyderabad with a - 2 and that they had met khalid ( absconding accused no. 16 ) there. according to this witness, the said abdul raheman @ abu talah @ khalid had made arrangement for their lodging at hotel g - royal. he also admitted to having met ayub ( absconding accused no.

23 ) at hyderabad. he further admitted the disputed signature in the hotel register ( muddamal article no. 129 ) and the specimen signature ( muddamal article no. crl. a. nos. 2295 - 2296 of 2010 - 36 - 131 ) as that of his own. he also identified a - 2 in the court. 23. the high court also placed reliance on the statement of mehboob - e - llahi abubakar karimi ( pw - 82 ) who has admitted to transfer of money through him. he also admitted the payment made to a - 2 and identified the muddamal diary ( article no. 106 ) and the entries ( ex. 477 ) and ( ex. 478 ) made in respect of the aforesaid transfer of money. the high court further placed reliance on the statement of sevakram bulaki ( pw - 97 : ex. 563 ), owner of hotel g. royal lodge, hyderabad, who supported the prosecution version and admitted to having allotted room no. 322 to two persons namely abdul shaikh and a. s. shaikh who came from ghatkopar, bombay on 26. 04. 2002. he further admitted entry ( ex. 326 ) made in the entry register. 24. the high court further referred to the statement of a - 1 ( ex. 456 ) recorded before the deputy crl. a. nos. 2295 - 2296 of 2010 - 37 - commissioner of police zone - iv, ahmedabad under section 32 of pota, who admitted that he and other muslims from gujarat, working at riyadh used to meet at the residence of a - 3 and also admitted that one karim annan moulvi ( absconding accused no. 20 ), who was a native of pakistan, also used to attend the meetings. he also stated that he used to collect funds in the name of islam and was connected with pakistani jihadi group sippa - e - saheba and had also become a member of jaish - e - mohammed. the high court also stated that the confessional statement made by him is supported by the evidence of abdul raheman panara ( pw - 51 : ex. 314 ) 25. in paragraph 19 of the impugned judgment, the division bench of the high court examined the admissibility of the confessional statements made by a - 1, a - 2, a - 3, a - 4 and a - 6

and their probative value and held that the confessional statements were made by the accused persons under section 32 of pota before crl. a. nos. 2295 - 2296 of 2010 - 38 - sanjay gadhvi, deputy commissioner of police ( zone - iv ) ( pw - 78 : ex. 452 ), ahmedabad, who had been examined by the prosecution. he had deposed before the special court ( pota ) about the manner in which the confessional statements of the accused persons were recorded. he also identified and proved their confessional statements ( marked as exs. 454, 456, 458, 460 and 462 ). he stated before the court that the provisions of pota were explained to the accused persons before their statements were recorded, and further stated that he had warned them that their statements may be used against them and that they were not bound to make such statements before him. 26. the contention of the counsel for the accused that the aforesaid statements have been recorded mechanically by pw - 78, without following the mandatory procedural safeguards provided under section 32 of pota, was rejected by the division bench of the high court, which held that the same have been recorded crl. a. nos. 2295 - 2296 of 2010 - 39 - after following the mandatory procedural safeguards provided under section 32 of pota, after careful examination of the above provisions of section 32. the high court opined that sub - sections ( 4 ) and ( 5 ) of section 32 do not make it mandatory for the police ( recording officer ) to send the accused to judicial custody after recording his confessional statement under section 32 of pota. 27. the high court came to the conclusion that the chief judicial magistrate is obliged to send the accused to judicial custody only in case the accused persons complain of ill - treatment or torture by the police. all the accused persons who made confessional statements appeared before the cjm ( pw - 99 ), and they made no complaint against the police and they had also admitted the statement made by them. the division bench of the high court held that the aforesaid facts tend to prove that none of the accused persons making crl. a. nos. 2295 - 2296 of 2010 - 40 - the confessional statement had been ill treated by the police or had been oppressed or lured to do so. 28. therefore, the high court has concluded at paragraph 131 of the impugned judgment that the prosecution had proved that the confessional statements of all

the six accused persons were properly recorded and procedural requirements under the statute were complied with. the division bench of the high court further recorded the concurrent finding at para 132 of the impugned judgment that if the statutory safeguards are properly followed by the police officer and the cjm, and other facts and evidence on record indicate free will of the accused persons in making the confessional statement, such statement is admissible in evidence and can be relied upon as a truthful account of facts of the crime. 29. the high court further examined the evidence of suresh kumar padhya cjm ( pw - 99 : ex. 568 ) who had recorded the statement of a - 1 and a - 3 on the request of pw - 78, dcp on 18. 09. 2003, i. e a day after their confessional statements were recorded. a - 2 and a - 4 made their confessional statements before pw - 78 on 24. 09. 2003 and were sent to pw - 99 on 25. 09. 2003. a - 6 made his confessional statement on 05. 10. 2003 and was sent to pw - 99 on 06. 10. 2003. pw - 99 had stated before the special court ( pota ) that accused persons had stated before him that they were not ill treated by the police. their statements were read over to them. with regard to cross examination of pw - 99, he admitted that he had not inquired from the accused persons as to how long they were in the police custody nor did he send them to judicial custody after recording their statements. he deposed that he did not think it necessary to send the accused persons to the judicial custody. he has also admitted that he had not recorded crl. a. nos. 2295 - 2296 of 2010 - 42 - a specific statement that the accused persons had made confessional statement of their own volition. 30. the high court considered the evidence of pw - 99 and came to the conclusion that the procedural safeguards provided under section 32 of pota have been followed by pw - 78 to record the statements of the accused persons as per the guidelines issued by the apex court in various judgments particularly state of tamil nadu v. nalini & ors. ( supra ) and jayawant dattatraya suryarao v. state of maharashtra9. the high court came to the conclusion that this court in the case of devender pal singh v. state of nct of

delhi10 held that the initial burden is on the prosecution to prove that all the requirements under section 15 of tada and rule 15 of tada rules were complied with. once that is done and the prosecution discharges its burden, then it is for the accused to satisfy the 9 ( 2001 ) 10 scc 109 10 ( 2002 ) 5 scc 234 crl. a. nos. 2295 - 2296 of 2010 - 43 - court that the confessional statement was not made voluntarily. the high court opined that in present case, each accused making confessional statement was granted time of around 15 minutes to reflect over his decision to make confessional statement, and the high court stated that there is no evidence on record to suggest that 15 minutes time was inadequate so as to render the confessional statements inadmissible in evidence or unreliable as none of the five accused persons while making the confessional statement had asked for further time. none of them had made a complaint of inadequacy of time before pw - 99 and on the other hand, admitted the confessions made by them. 31. the high court further stated that the contention made by the learned counsel for the accused persons that they were kept in police custody for around 45 days before the official date of arrest, is absolutely unbelievable. further, sending the accused persons to judicial custody after recording the confessional crl. a. nos. 2295 - 2296 of 2010 - 44 - statement is a matter of prudence and not a statutory requirement. pw - 99 had made a specific note on the writings ( exs. 453, 455, 457, 459 and 461 ), that each of the accused person was asked whether he had suffered ill - treatment at the hands of the police and that none of them had complained of ill - treatment by the police. the division bench held the confessional statements of the accused persons to be admissible in evidence in order to prove their guilt, relying on various decisions of this court. 32. after recording such findings, the defence evidence was also examined. defence witness ( hereinafter dw ) nos. 1 to 7 have given evidence and the same have been adduced by the defence to support their claim that the accused persons were arrested long before the official date recorded and that they were tortured by the police to make the confessional statements. the aforesaid evidence of dw - 3 referred to a - 2 and a - 3. the high court referred to all the crl. a. nos. 2295 -

2296 of 2010 - 45 - defence witnesses, except dw - 3 to hold that none of the aforesaid evidence remotely supports the defence version that a - 2 and a - 3 were arrested long before 29. 08. 2003, i. e the dates of arrest as mentioned in their arrest memos. the high court held that the evidence of the doctors also does not prove the police atrocities allegedly committed upon the accused persons during the period they were in the police custody. all the six accused persons, in their retraction statements, complained of having been beaten up by acp singhal ( pw - 126 ), v. d. vanar and r. i. patel, because of which they could not stand up on their feet. on denying their complicity in the akshardham attack, they were threatened of being encountered. each accused persons said that every day they were called either by singhal, v. d. vanar or by r. i. patel and were forced to admit their complicity in the akshardham attack. on 05. 11. 2003, the accused persons were produced before the special court ( pota ) crl. a. nos. 2295 - 2296 of 2010 - 46 - from the judicial custody. each one of them was given audience before the judge of the special court ( pota ) wherein, they all made an oral complaint of police atrocities during the police custody and also complained of having been in police custody for long time. according to each accused person, he was made to sign the confessional statement prepared by the police under coercion and duress and had not made the same of his own free will. at paragraph 144 of the impugned judgment, the division bench of the high court had recorded its finding that the aforesaid retractions are ex facie unbelievable, without giving any reason. 33. at para 145 of the impugned judgment, the high court examined the evidence in respect of the letters written in urdu ( ex. 658 ), which is a vital incriminating evidence against a - 4. according to the defence, these letters were planted by the police at a crl. a. nos. 2295 - 2296 of 2010 - 47 - later stage, and they placed reliance on the evidence of pw - 42 ( ex. 266 ), the inquest panchnama ( ex. 267 ) of the bodies of the deceased fidayeens, the post mortem notes (

ex. 492 and ex. 493 ) and the muddamal clothes of the fidayeens and submitted that since both of them died of bullet wounds sustained during the counter attack by the nsg commandos, the bodies were wounded and soiled in blood, and their clothes were tattered by the bullet holes and the splinters. there were holes in the clothes of the fidayeens particularly on the pockets of their trousers. in the aforesaid circumstances, it is not possible that the letters recovered allegedly from the pockets of the trousers of the fidayeens were unsoiled and in perfect condition, and therefore, the expert opinion ( ex. 511 ) is not very accurate and is not reliable. the high court stated that it is true that the urdu letters recovered from the bodies of the deceased fidayeens were in perfect condition in spite of the multiple crl. a. nos. 2295 - 2296 of 2010 - 48 - injuries received by the fidayeens and assigned the reason in paragraph 189 of the impugned judgment as but then the truth is stranger than fiction and that it is not possible to disbelieve that two urdu letters ( exh. 658 ) were recovered from the bodies of the fidayeens. it was stated by the high court that both the letters were signed by brig. raj sitapati of nsg. the recovery of these letters is recorded in the muddamal articles as per list ( ex. 524 ) which were received by acp g. l singhal ( pw - 126 ) in the premises of akshardham temple itself under panchnama ( ex. 440 ), signed by the police officer shri prakashchandra mehra ( pw - 105 : exh. 592 ). the evidence and the opinion ( exh. 511 ) of the handwriting expert j. j. patel ( pw - 89 : exh. 507 ) was relied upon to prove that the said letters were written by a - 4. 34. the argument advanced by the learned counsel for the accused persons regarding the subsequent planting of letters was rejected by the high court, stating crl. a. nos. 2295 - 2296 of 2010 - 49 - that if this argument was to be accepted, then the aforesaid evidence adduced by the prosecution has to be disbelieved and it has to be held that the police had such presence of mind that in the : imprisonment

to a - 3, five years rigorous imprisonment to a - 1 and ten years rigorous imprisonment to a - 5 and the appeals of the accused persons were dismissed. crl. a. nos. 2295 - 2296 of 2010 - 50 - the correctness of the impugned judgment and orders passed by the high court is under challenge in these appeals by the accused appellants, in support of which they urged various facts and legal contentions before this court. 35. the rival legal contentions urged on behalf of the accused persons and the prosecution will be dealt with as hereunder : contentions on behalf of the prosecution we will first examine the contentions urged on behalf of the prosecution represented by mr. ranjit kumar, the learned senior counsel appearing on behalf of the state of gujarat who has advanced the following arguments to establish the guilt of the accused persons : the procedure under section 50 of pota was followed by the state government while granting sanction : crl. a. nos. 2295 - 2296 of 2010 - 51 - 36. it was contended by the learned senior counsel that on completion of the investigation, pw - 126 forwarded a complete set of papers and his report through official channel recommending prosecution against all six accused persons under the provisions of pota. the sanction granted by the home department was given under the signature of the deputy secretary of the said department, mr. j. r rajput by sanction no. sb. v / pota / 10 / 2003 / 152 ( ex. 498 ). all the papers were received by the sanctioning authority on 12. 11. 2003 and the section officer put up the file to the under secretary on 13. 11. 2003 and after proper application of mind, the sanction was approved by kuldeep chand kapur, principal secretary, home department ( pw - 88 ) on 15. 11. 2003 and it was sent back to the minister for state ( home ) who approved it on 18. 11. 2003 and received back these papers from the minister on 19. 11. 2003 and thereafter sanction order was issued on 21. 11. 2003. it was further submitted that the crl. a. nos. 2295 - 2296 of 2010 - 52 - procedure for granting sanction by the home department was followed as per the gujarat government rules of business, 1990. it was submitted that the sanction order was passed by the state government after proper application of mind by the competent authority. the learned senior counsel also submitted that the

learned counsel for a - 6, ms. kamini jaiswal placed reliance on the case of ramanath gadhvi v. state of gujarat11 qua the sanction under section 20 - a ( 2 ) of tada, which has been declared per incuriam by a 5 judge bench in the case of prakash bhutto v. state of gujarat12 and therefore the judgment has no relevance. confessions of a - 1, a - 2, a - 3, a - 4 and a - 6 are valid : 37. the learned senior counsel contended that the procedure for recording of the confessions as under 11 ( 1997 ) 7 scc 744 12 ( 2005 ) 2 scc 409 crl. a. nos. 2295 - 2296 of 2010 - 53 - section 32 of pota was scrupulously followed. the accused persons did not make any complaints of beatings or ill treatment by the police when produced before the cjm for remand on different dates. when the complaints were made later, a medical examination was carried out in which none of the complaints were found to be true. the learned senior counsel also submitted that the confessional statements of a - 2 and a - 4 were recorded on 24 - 09 - 2003, that of a - 3 on 17 - 09 - 2003 and that of a - 6 on 05 - 10 - 2003. a - 5 did not make any confession at all. the retraction to these confessional statements came around five weeks later. he contended that it is clear that these retractions are mechanical as even a - 5, who had not made any confessional statement, sent his retraction. the urdu letters were collected from the dead bodies of the two fidayeens : 38. the inquest panchnama was drawn of the dead bodies of the two fidayeens by police officer shri prakashchandra mehra ( pw - 105 : exh. 592 ), who in his statement has confirmed the collection of the two urdu letters. pw - 91, maj. jaydeep lamba, who was the commander of the task force, also stated that two urdu letters were found from the dead bodies of the fidayeens by him and brig. raj sitapati, and that they contain the signature of brig. raj sitapati at the bottom and that a list was prepared of the articles recovered ( ex. 524 ) which ` was signed by him. reliance was

also placed by the learned senior counsel on the evidence of pw - 89 who had opined that the letters ( ex. 658 ) had been written by a - 4. the learned senior counsel also submitted that pw - 91 deposed before the court, and that in his cross examination, he was not questioned regarding the condition of the letters written in urdu, as crl. a. nos. 2295 - 2296 of 2010 - 55 - recovered from the two fidayeens. similarly, even pw - 126 was not cross examined by the counsel for the accused persons on the condition of the letters. on being questioned by us as to why the letters did not have any blood stains on them, the learned senior counsel submitted that the panchnama stated that the trousers were stained with blood and not soaked with it. their trousers became wet due to the oozing of blood which has gone to the back of the trousers because of gravity as the bodies were lying on their back after shooting. the link of accused persons to akshardham attack has been established. 39. the learned senior counsel had relied upon the confessional statements of the accused persons to draw the link between them and the attack on the akshardham temple. he had submitted that the confessional statements would clearly go to show how each one of crl. a. nos. 2295 - 2296 of 2010 - 56 - the accused persons had a different and compartmentalized role from the procurement of arms and ammunitions to providing the logistics to the fidayeens for carrying out the operation and the motivation provided for the attack. the role of a - 6 has also been proved. 40. the learned senior counsel submitted that a - 6 played a crucial role in bringing the weapons from kashmir to bareilly - in his ambassador car bearing registration no. kmt 413, in a secret cavity made underneath the back seat, and thereafter he carried the weapons, concealed in the bedding in the train and accompanied the fidayeens to ahmedabad. the navgam police station at jammu & kashmir had arrested a - 6 in offence registered in fir : cr no. 130 of 2003, and it was during the interrogation in the above said offence that he had disclosed his involvement in the akshardham attack. a fax message crl. a. nos. 2295 - 2296 of 2010

- 57 - was received by the gujarat ats from the igp kashmir regarding the same on 31. 08. 2003. the investigation was conducted by pw - 126 who was the then acp and was authorized to do so as per section 51 of pota. a team was formed under the proper authorization for collecting materials from different places during investigation. i. k chauhan ( pw - 125 ) was asked to go for inquiry to jammu & kashmir. it was submitted that there were many other evidences, other than his confessional statement, including the testimony of yusuf gandhi, owner of gulshan guest house, ( pw - 57 ) who had stated before the special court ( pota ) that a - 6 stayed there, and also the panchnama of the ambassador car kmt 413 ( ex. 671 ). delay in cracking the case. 41. the learned senior counsel submitted that initially the investigation was conducted by v. r tolia ( pw - 113 ) of the local crime branch, gandhinagar, and crl. a. nos. 2295 - 2296 of 2010 - 58 - thereafter by k. k patel of the ats. the investigation was then handed over to g. l singhal, acp crime branch ( pw - 126 ) on 28. 08. 2003. it was on 28. 08. 2003, that ashfaq bhavnagri ( pw - 50 ) was interrogated, who revealed the entire conspiracy as well as the role of a - 1 and a - 3 in committing the dastardly offences. the conspiracy. 42. it was further submitted that it has been proved that the accused persons, along with the absconding accused hatched a conspiracy to create terror and take revenge on the hindus on account of the godhra riots. for this purpose, secret meetings were held at jiddah, riyadh, hyderabad and kashmir. a - 2 was contacted by his brother who ensured supply of finance, weapons and trained terrorists. a - 4 and a - 5, who were running relief camps and were also religious leaders, accepted to garner local support and thus money was sent through havala. a - 2 and the two fidayeens visited crl. a. nos. 2295 - 2296 of 2010 - 59 - various places in ahmedabad and finally chose akshardham temple in gandhinagar

as the site for the attack on 24. 09. 2002. a - 4, at the instance of a - 5, wrote the two urdu letters and gave them to the fidayeens. a - 5 took the fidayeens to the railway station, from where they took a taxi to the akshardham temple. the arms and ammunitions were brought from kashmir by a - 6. concurrent findings of the courts below43. it was further submitted by the learned senior counsel for the prosecution that the special court ( pota ) as well as the division bench of the high court, after proper appreciation and analysis of evidence, gave concurrent findings of fact and thus the conviction and the sentences ordered by the courts below ought to be upheld. 44. the learned senior counsel for the prosecution thus submits that it has proved beyond reasonable crl. a. nos. 2295 - 2296 of 2010 - 60 - doubt that the accused persons were involved in the conspiracy for the attack on the akshardham temple and the sentences meted out to them by the special court ( pota ) and confirmed by the high court must be upheld by this court as the concurrent findings of fact recorded on the charges framed against the accused persons does not warrant any interference by this court. contentions on behalf of a - 2 & a - 4 and a - 3 & a - 5. 45. we will now examine the contentions urged on behalf of a - 2 and a - 4 who are represented by learned senior counsel, mr. k. t. s tulsi and thereafter a - 3 and a - 5, who are represented by learned senior counsel, mr. amarendra sharan. subsequently, the contentions urged on behalf of a - 6 who is represented by learned counsel, ms. kamini jaiswal will be dealt with. the contentions will be dealt with topic wise. crl. a. nos. 2295 - 2296 of 2010 - 61 - that the sanction required under section 50 of pota was not obtained in a proper manner. 46. section 50 of pota provides that no court shall take cognizance of any offence under the act without the previous sanction of the central government or as the case may be by the state government. the prosecution has relied on the testimony of kuldeep chand kapoor ( pw - 88 ) to prove that the sanction was granted in accordance with the law. it was contended by the learned

counsel for a - 6 that the perusal of the statement of pw - 88 would show that all the documents pertaining to the investigation were not placed before the sanctioning authority and it was only on the approval of the minister that the sanction was granted. the sanction was granted without due application of mind. thus the said sanction is not a proper previous sanction, on the basis of which the court could have taken cognizance of the offences. crl. a. nos. 2295 - 2296 of 2010 - 62 - evidentiary value of confessions : 47. all the three learned counsel have similar submissions with respect to the reliance placed by the courts below on the confessional statements made by the accused persons to hold that the accused persons are guilty of the offences they are charged with. they submitted that the concurrent findings of fact upholding the conviction of the accused persons on the basis of their confessional statements is erroneous, keeping in mind that there is no admissible or reliable evidence on record which connect them with the offences. it is contended by both the learned senior counsel mr. k. t. s. tulsi and mr. a. sharan on behalf of a - 2 and a - 4 and a - 3 and a - 5 respectively, that the prosecution had not complied with the statutory provisions under section 32 ( 5 ) of pota, though they produced the accused persons before the learned cjm pw - 99, within crl. a. nos. 2295 - 2296 of 2010 - 63 - 48 hours as provided under section 32 ( 4 ) of pota. it is contended that after recording their statements, cjm ( pw - 99 ) failed to discharge the vital obligation of sending them to judicial custody and thus, committed a grave error in remanding them back to police custody which was a clear violation of section 32 ( 5 ) of pota and article 20 ( 3 ) of the constitution. it was submitted that the division bench of the high court had erroneously made an observation in the impugned judgment in this regard with reference to section 32 ( 5 ) of pota, stating that the chief judicial magistrate has the power to send a person to a judicial custody only when he complains of ill treatment and torture by the police. the aforesaid finding is contrary to the law laid down by this court in nct v. navjot sandhu. 13 13 ( 2005 ) 11 scc 600 crl. a. nos. 2295 - 2296 of 2010 - 64 - 48. further, the

learned senior counsel placed reliance on the deposition of pw - 99 to contend that it leaves no manner of doubt that he was neither mindful of his obligations under section 32 of pota nor did he make any enquiry regarding fear or torture likely to have been faced by the accused persons while making their confessional statements. on the contrary, he mechanically sent the accused persons back to police custody after recording their statements. it was further submitted that the cjm had failed to perform the most important duty of informing himself about the surrounding circumstances for making the confessional statements by the accused. remanding the accused persons to judicial custody has been considered as the most significant safeguard and protection against torture by police, which was thrown to the wind by the cjm, thereby he had violated the fundamental rights guaranteed to the accused persons under articles 20 ( 3 ) and 21 of the constitution. it was further contended crl. a. nos. 2295 - 2296 of 2010 - 65 - by the learned senior counsel that there was a failure on the part of the courts below in not considering the evidence of doctors who work in government hospitals and who deposed in the case on behalf of the accused persons that a - 2 to a - 6 had complained of having received severe beating by the police prior to recording the confessional statements. the said evidence is clear from the depositions of dw - 2 ( ex. 731 ), dw - 4 ( ex. 736 ), dw - 5 ( ex. 737 ) and dw - 7 ( ex. 744 ). from the evidence of dw - 2, it is revealed that the x - ray plates and case papers of a - 4 were found missing and from the aforesaid evidence, the only conclusion that can be drawn is that once the accused persons had complained of having received severe beatings by the police prior to their making of their confessional statements, the credibility of such confessions became doubtful as the same had not been made voluntarily before pw - 78 by them. therefore, it had been urged that neither the special court ( pota ) crl. a. nos. 2295 - 2296 of 2010 - 66 - nor the division bench of the high court should have placed reliance upon the said confessional statements to record the finding of guilt against the accused persons. the courts below should have considered that there was a statutory obligation upon the prosecution not to suppress any evidence or document on record which indicates the innocence of the accused persons. thus, in the light

of evidence of dw - 2, the conduct of the prosecution in the facts and circumstances of the case becomes unjustified. the learned senior counsel in support of the said contention placed reliance upon the decision of this court in the case of sidhartha vashisht v. state ( nct of delhi ) 14. 49. further, the learned senior counsel on behalf of the accused persons contended that there were serious infirmities with regard to the manner in which the alleged confessional statements of the accused persons 14 ( 2010 ) 6 scc 1 crl. a. nos. 2295 - 2296 of 2010 - 67 - were recorded without sufficient time being given for reflection, which was in violation of the principle laid down by this court in the cases of ranjit singh @ jita & ors. v. state of punjab15, navjot sandhu case ( supra ) and state of rajasthan v. ajit singh & ors. 16. it was further urged that the courts below had failed to take into consideration the element of fear of further torture by the police, in the minds of the accused persons which was bound to be present, especially when their confessional statements were recorded by pw - 78 in his office without them being assured of being sent to judicial custody immediately after making their statements. these above important facts had certainly vitiated the confessional statements made by the accused persons, making them highly unreliable and unnatural. therefore, the courts below should not have placed reliance on the same to 15 ( 2002 ) 8 scc 73 16 ( 2008 ) 1 scc 601 crl. a. nos. 2295 - 2296 of 2010 - 68 - record the finding of guilt against the accused persons. the remaining evidence on record placed on behalf of the prosecution, does not establish even remotely that they were party to any of the material ingredients of the conspiracy of the attack on akshardham temple. in support of the said contention, the learned senior counsel invited our attention to concurrent findings of fact of the courts below contending that the same are liable to be set aside as they have relied solely upon the confessional statements made by the accused persons while upholding their conviction. the courts below had gravely erred in not considering the very important legal aspect of the matter, that a trial court cannot begin by examining the confessional statements of the accused persons to convict them. it was contended that it must begin with other evidence adduced by the prosecution and after

it has formed its opinion with regard to the quality and effect of other evidence, only then, the crl. a. nos. 2295 - 2296 of 2010 - 69 - court must turn to the confessions in order to be assured as to the conclusion of guilt, which the judicial mind is about to reach, based on the said other evidence. in support of the aforesaid legal submissions he had placed reliance upon the judgment of this court in the case of haricharan kurmi v. state of bihar17 and the navjot sandhu case ( supra ). 50. further elaborating their submissions, the learned senior counsel urged that the confession of an accused person has been regarded by this court as fragile and feeble evidence which can only be used to support other evidence. in support of this contention he relied upon the judgment of this court in the prakash kumar v. state of gujarat18. the approach of the courts below to record the finding of guilt against the accused persons, should be to first marshall evidence against the accused persons excluding their 17 ( 1964 ) 6 scr 623 18 ( 2007 ) 4 scc 266 crl. a. nos. 2295 - 2296 of 2010 - 70 - confessions and see whether conviction can safely be based upon it. retracted confessions. 51. the learned senior counsel mr. a. sharan appearing for a - 3 and a - 5 had further contended that the courts below had failed to take into consideration that the confessional statements made by the accused persons had been retracted at the earliest possible opportunity available to them. the evidence of the doctors that the sustained fracture being found on the bodies of the accused persons by the examining doctor and subsequent disappearance of the x - ray plates from the records, raised a series of doubts regarding the manner in which the confessional statements were recorded. in support of this contention the learned senior counsel placed reliance upon the decision of this court in the case of chandrakant chimanlal desai crl. a. nos. 2295 - 2296 of 2010 - 71 - v. state of gujarat19. the learned senior counsel further contended that in the present set of facts, there was sufficient proof that the confessional statements were not made voluntarily and in the light of the above, the courts below were duty bound to corroborate the confessional statements with other independent evidence to test their veracity. learned senior counsel mr. k. t. s tulsi representing a -

2 and a - 4 and learned counsel, ms. kamini jaiswal representing a - 6 have reiterated the same and submitted that there had to be independent evidence corroborating the confessional statements of the accused persons if they had been retracted. evidence of accomplices. 52. the learned senior counsel mr. k. t. s tulsi submitted that the learned senior counsel for the 19 ( 1992 ) 1 scc 473 crl. a. nos. 2295 - 2296 of 2010 - 72 - prosecution had placed reliance on the evidence of pw - 50 as substantial evidence against the accused persons. he contended that a careful reading of the evidence of pw - 50 showed that the said witness had clearly admitted that he was an accomplice in as much as he admitted to having contributed money, even when a - 3 informed them that the money was to be used for taking revenge. it was further contended that a court should not rely on the evidence of an accomplice to record finding of guilt against the accused persons and to buttress the said submission, he placed reliance upon the judgment of this court in the case of mrinal das v. state of tripura20. in support of the said submission, he had further placed reliance upon the judgment of this court in the case of bhiva doulu patil v. state of maharashtra21 20 ( 2011 ) 9 scc 479 21 air 1963 sc 599 crl. a. nos. 2295 - 2296 of 2010 - 73 - further elaborating his submission in this regard, he placed reliance upon another judgment of this court in the case of mohd. husain umar kochra v. k. s. dalipsinghji22, wherein this court had further stated with regard to the combined effect of sections 133 and 114, illustration ( b ) of the indian evidence act, 1872 and held that corroboration must connect the accused persons with the crime. 53. the learned senior counsel relied upon the case of sarwan singh v. state of pubjab23, wherein this court has laid down the legal principle that the courts are naturally reluctant to act on such tainted evidence unless it is corroborated and that independent corroboration should support the main story disclosed by the approver apart from a finding that the approver is a reliable witness. the accomplice evidence should satisfy a double test, i. e. he is a reliable witness 22 ( 1969 ) 3 scc 429 23 air 1957 sc 637 crl

. a. nos. 2295 - 2296 of 2010 - 74 - and that there is sufficient corroboration by other evidence to his statement. this test is special to the case of weak or tainted evidence like that of the approver. in support of the said principle, he further placed reliance on the cases of ravinder singh v. state of haryana24, abdul sattar v. u. t. chandigarh25, narayan chetanram chaudhary v. state of maharashtra26, sheshanna bhumanna yadav v. state of maharashtra27 and bhuboni sahu v. r. 28. 54. the learned senior counsel specifically referred to the case of k. hashim v. state of tamil nadu29 wherein this court, after adverting to sections 133 and 114, illustration ( b ) of the evidence act has held that the said provisions strike a note of warning 24 ( 1975 ) 3 scc 742 25 ( 1985 ) suppl ( 1 ) scc 599 26 ( 2000 ) 8 scc 457 27 ( 1970 ) 2 scc 122 28 ( 1948 - 49 ) 76 ia 147 29 ( 2005 ) 1 scc 237 crl. a. nos. 2295 - 2296 of 2010 - 75 - cautioning the court that an accomplice does not generally deserve to be believed. 55. he then drew our attention to an unreported judgment of this court delivered by one of us, a. k. patnaik, j. in the case of state of rajasthan v. balveer ( crl. appeal no. 942 of 2006 decided on 31. 10. 2013 ) wherein this court observed, while referring to illustration ( b ) of section 114 of the evidence act, and observed that the court will presume that an accomplice is unworthy of credit unless he is corroborated by material particulars. 56. it was further urged that the learned senior counsel on behalf of the prosecution had strongly relied on the statement of pw - 51, whereas the aforesaid deposition was virtually rendered useless during cross examination before the special court ( pota ). the version given by the said witness in his cross examination was more credible, natural and casts crl. a. nos. 2295 - 2296 of 2010 - 76 - a serious doubt about the manner in which the evidence was sought to be fabricated by police officer, d. g vanzara whose entrusting of

the case to the crime branch on 28. 08. 2003 suddenly resulted in feverish activity, whereupon the accused persons were arrested and their confessional statements were recorded. the learned senior counsel for the prosecution had relied upon the deposition of pw - 52 who had stated in his evidence about sending money through a - 3, as well as the weapons for the carnage and had also identified a - 2, a - 4 and a - 5 before the court. the learned senior counsel, mr. k. t. s tulsi submitted that the said statement of this witness was exculpatory as he had stated that no work was assigned to him. therefore, such statement can neither be considered to be reliable nor worthy of acceptance without corroboration in material particulars from independent sources. in view of the test laid down by this court in a catena of judgments referred to supra, upon which crl. a. nos. 2295 - 2296 of 2010 - 77 - strong reliance had been placed by the learned counsel based on the presumption contained in illustration ( b ) of section 114 read with section 133 of the indian evidence act, it was submitted that provisions of the evidence act are of no avail to the prosecution case. letters purportedly recovered from the pockets of the fidayeens cannot be relied upon : 57. both the learned senior counsel, mr. k. t. s tulsi and mr. a. sharan contended that it was not possible to believe that the letters were recovered from the pockets of the two fidayeens, mainly on the evidence from the post mortem of the dead bodies of the fidayeens which showed that the bodies had 46 and 60 external injuries, respectively, due to multiple bullet shots and the panchnama of the clothes of the assailants clearly demonstrated that their clothes were full of blood and mud and therefore, it was highly improbable and difficult to believe that the crl. a. nos. 2295 - 2296 of 2010 - 78 - alleged letters were recovered in a perfect condition from the clothes of the fidayeens. the high court had failed to reconcile the fact of absence of bullet holes on the letters with the presence of multiple bullet holes on the pockets of the trousers, from which the letters were purported to have been recovered. with regard to the letters being in a perfect condition, the high court merely observed that truth is stranger than fiction and it was submitted that the courts below ought not to have

relied upon such a document to record their findings of guilt against the accused persons on the basis of the same. 58. the learned senior counsel also referred to various discrepancies in the statements of the two important witnesses in relation to the letters, i. e of pw - 91, lt. col. jayadeep lamba, who, according to the prosecution, had recovered them from the pockets of the trousers of the fidayeens, but whose statement was not recorded under section 161 crpc and that of pw - crl. a. nos. 2295 - 2296 of 2010 - 79 - 121, the translator of the letters. it was claimed by the prosecution that pw - 91 was not examined by the investigation officer under section 161 crpc since the nsg had refused to grant permission to its personnel to disclose any information regarding their operation with respect to the attack. the prosecution had placed reliance upon a letter dated 11. 02. 2002 by the ministry of home affairs to prove the same. the learned senior counsel contended that the prosecution had however, relied upon the statement made by this witness, pw - 91 before the special court ( pota ), who was a chargesheet witness although his statement under section 161 crpc was never recorded and thus, the accused persons had been naturally deprived of an opportunity to effectively cross - examine the witness and thereby they were very much prejudiced. 59. the learned senior counsel also contended that the claim of the prosecution that the letters were found in a pouch which was present in the pocket of the crl. a. nos. 2295 - 2296 of 2010 - 80 - trousers of the fidayeens cannot be believed as there is no evidence to support the same and on the contrary, the receipt voucher of the articles collected from the fidayeens only listed two handwritten letters in urdu and there was no mention of the pouch whatsoever. delay in recording statements of accomplices and confessional statements of the accused persons. 60. the learned senior counsel, mr. a. sharan had submitted that the preliminary investigation of the case was initially carried out by the police from 27. 09. 2002 and thereafter, the investigation was handed over to the ats on 03. 10. 2002. after the matter was investigated for a year, it was transferred to the crime branch on 28. 08. 2003 and surprisingly, on the very next day i. e, 29. 08.

2003, all the accused persons, except a - 6 were arrested and on 30. 08. 2003, crl. a. nos. 2295 - 2296 of 2010 - 81 - the provisions of pota were invoked by the crime branch against them. 61. it was further contended by him that this made the prosecution story highly improbable and the fact that the accused persons were apprehended a year after the incident made the conduct of the prosecution highly doubtful and totally unreliable. it was further contended by him that it is a well settled principle of law that there should not be an inordinate delay in the recording of the statements of the accomplices by the police. pw - 50, pw - 51, pw - 52 and pw - 56 had stated in their depositions that their statements were recorded around the 7th or 8th month of 2003. thus, this inordinate delay leads one to draw an adverse inference and also leads one to believe that the police had sufficient time to fabricate the story and rope in the accused persons falsely in this case. reliance was placed by the learned senior counsel on crl. a. nos. 2295 - 2296 of 2010 - 82 - the case of state of andhra pradesh v. s. swarnalatha & ors. 30, wherein even 26 days delay in recording statements of prosecution witnesses was not allowed by this court. the learned senior counsel also referred to the case of jagjit singh @ jagga v. state of punjab31 in support of the above position of law. it was contended that the delay in recording the statements of the accused and witnesses by police and reliance placed upon the same by the courts below vitiated the finding recorded that the accused persons are guilty, and the same is liable to be set aside. there was delay in recording the statement of pw - 52 and pw - 56 which is evident from the record that pw - 52 had stated that his statement was recorded on 07. 09. 2003, while pw - 56 stated that his statement was recorded in the 7th or 8th month of 2003. thus, there 30 ( 2009 ) 8 scc 383 31 ( 2005 ) 3 scc 689 crl. a. nos. 2295 - 2296 of 2010 - 83 - was a delay of almost of a year in recording the statement of the aforesaid witness by the police. failure of prosecution to establish a nexus between the accused persons and the crime as well as link between the fid

##ayeens and the accused persons. 62. the learned senior counsel mr. a. sharan contended that for the prosecution to invoke common intention under section 34 ipc or common object under section 149 ipc, it is required to establish beyond reasonable doubt the connection between the accused persons and the common intention / object of the crime with which they are charged. in this regard, it was submitted that all the main prosecution witnesses, i. e pw - 50, pw - 51, pw - 52 and pw - 56 upon which strong reliance had been placed by the learned senior counsel on behalf of the prosecution, had failed to show and establish the nexus either with common intention or object, or the cumulative effect of the proved circumstances, to crl. a. nos. 2295 - 2296 of 2010 - 84 - establish any connection between the accused persons and the conspiracy of the attack on akshardham. further, it was contended that the courts below had grossly erred in placing strong reliance upon the evidence of above prosecution witnesses to hold that there was a link or connection between the fidayeens and the accused persons, and that it was on the failure of the prosecution to establish such connection, that they had been subsequently roped in. 63. further, it was contended that even from the confessional statement of a - 6, wherein he had narrated as to how the two fidayeens were brought from jammu & kashmir to gujarat, there was no mention of a - 1 to a - 5. therefore, the prosecution had failed to establish the connection between a - 6 and a - 2, a - 4, a - 3 and a - 5 and this important aspect of the matter had not been considered at all by the courts below while recording the finding of guilt against the accused persons and the same cannot be allowed to sustain. crl. a. nos. 2295 - 2296 of 2010 - 85 - defence witnesses to be given same weightage as prosecution witnesses. 64. the learned senior counsel also contended that the courts below should have given same weightage to the evidence of the defence witnesses as that of the prosecution witnesses and in support of this contention, he placed reliance upon the cases of munshi prasad v. state of bihar32, i. c. d. s. ltd. v. beena shabeer & anr. 33 and state of uttar pradesh v. babu ram34

suppression of material witness draws an adverse inference against the prosecution. 65. it was contended by the learned senior counsel that pw - 126 stated that his senior officer d. g vanzara, had orally told him that pw - 50 was aware of 32 ( 2002 ) 1 scc 351 33 ( 2002 ) 2 scc 426 34 ( 2000 ) 4 scc 515 crl. a. nos. 2295 - 2296 of 2010 - 86 - the details of the conspiracy, but d. g. vanzara was never produced as a prosecution witness. the case is the same with brig. raj sitapati, who was also a witness to the recovery of the two urdu letters, and this material witness had also been conveniently brushed aside both by the police and the prosecution. reliance was placed by the learned senior counsel in this regard on tulsiram kanu v. the state35, ram prasad & ors. v. state of u. p. 36 and state of u. p. v. punni & ors. 37 alternative stories put forth by the prosecution. 66. further, it was contended by the learned senior counsel mr. a sharan that alternative stories had been put forth by the prosecution. it was borne out from the confessional statement of a - 4 that the two fidayeens, i. e. doctor 1 ( murtuza / hafiz yasir ) & 35 air 1954 sc 1 36 ( 1974 ) 3 scc 388 37 ( 2008 ) 11 scc 153 crl. a. nos. 2295 - 2296 of 2010 - 87 - doctor 2 ( ashraf / mohd. faruk ) belonged to lahore and rawalpindi respectively. as per the confessional statement of a - 6, the names of the two fidayeens were sakil and abdullah, who belonged to jammu and kashmir and had travelled along with a - 6 to gujarat. it was observed from the deposition of maj. jaydeep lamba ( pw - 91 ) that it was written in the two urdu letters that the two fidayeens were from atok region of pakistan. it was submitted that the prosecution had come forth with three different versions insofar as the origin of the two fidayeens was concerned. even the prosecution was not certain as to which of the three versions was true. it was submitted

that therefore, in the presence of these major discrepancies in the prosecution story, and the non - reliability of the confessional statements of the accused persons, they were entitled to acquittal. crl. a. nos. 2295 - 2296 of 2010 - 88 - contentions on behalf of a - 6. 67. the contentions urged by learned counsel ms. kamini jaiswal on behalf of a - 6 will now be adverted to as he was arrested later and his situation is different from that of the other accused persons. arrest of a - 6 in an offence investigated by jammu and kashmir police. 68. it is contented that as per the case of the prosecution, a - 6 was under arrest at the navgam police station kashmir, in relation to offence in fir no. 130 of 2003 under sections 120 - b and 153 - a of ranbir penal code ( rpc ) and sections 7 and 27 of the arms act. it was also the case of the prosecution that a fax message was sent by the igp kashmir to ats, gujarat on 31. 08. 2003, and that pursuant to the receipt of the fax, the transfer warrant was sought from the special designated court ( pota ), ahmedabad and on that basis, the application for remand was made to the chief crl. a. nos. 2295 - 2296 of 2010 - 89 - judicial magistrate, badgaum. a - 6 was brought to ahmedabad on 12. 09. 2003 and was arrested by the gujarat police in cr no. 314 of 2002 at 9 : 30 p. m. confessional statement of a - 6 is not admissible against him. 69. it was further submitted that the entire case of the prosecution rested solely on the alleged confession of a - 6 which was recorded on 05. 10. 2003 ( exs. 461 - 462 ), while he was in police custody. it had been submitted that there were several violations of the mandatory requirements of section 32 of pota while recording his confessional statement. learned senior counsel mr. k. t. s tulsi, appearing on behalf of a - 2 and a - 4 and mr. a. sharan learned senior counsel appearing on behalf of a - 3 and a - 5 had also advanced arguments in detail as to how the confessional statements of the accused persons were not recorded in accordance with the mandatory procedural safeguards crl. a. nos. 2295 - 229

##6 of 2010 - 90 - under section 32 of pota and the learned counsel for a - 6, ms. kamini jaiswal had alluded to them with respect to a - 6 also. hence, we will not reiterate the same in this portion of the judgment. that the other evidence produced by the prosecution also does not point to the guilt of a - 6. 70. the learned counsel submitted that during the remand of a - 6, the investigation was carried on by v. d vanar ( pw - 112 ), at bareilly and ahmedabad. he had drawn panchnama of a pco from where the accused had allegedly made telephone calls, but though he stated that a panchnama was drawn at bareilly, no such panchnama had been brought on record. he was also said to have recorded the statement of pw - 69, minhaas ashfaq ahmed who had stated that a - 6 got the ambassador car repaired at das motors and also the statement of one dr. sudhanshu arya ( pw - 93 ) who had stated that the accused came to him for treatment of crl. a. nos. 2295 - 2296 of 2010 - 91 - his child. however, it is contented that none of these incidents in any way connected the accused to the attack on the akshardham temple. some other evidence which the prosecution sought to rely on to establish the guilt of a - 6 were the deposition of the owner of gulshan guest house, yusuf gandhi, ( pw - 57 : ex. 328 ), panchnama of specimen signature of a - 6 in the register of the guest house ( ex. 683 ), recovery of the ambassador car from the custody of the j & k police ( ex. 672 ) and the report of the rto regarding the ownership of the said ambassador car. ( ex. 672 ). it was submitted that the register of the guest house, which was seized around 27. 08. 2002 and 28. 08. 2002, was never sealed, and that the pointing out of the signature by a - 6 while being in custody of the police was not admissible in evidence. it was further submitted that with regard to the ownership of the ambassador car, the report of the rto ( ex. 672 ), showed that it was registered in the name of abdul majid rathor. the prosecution had also not been able to bring anything

on record to connect a - 6 with the said owner or with the car, or of the case with the attack at akshardham temple. that there had also been a violation of section 51 of pota. 71. it was contended by the learned counsel that section 51 of pota, which starts with the non - obstante clause, makes it mandatory that the investigation under pota be carried out only by the officer of the rank of deputy superintendent of police or a police officer of an equivalent rank. it was argued that the investigation in the present case was mostly carried out by the officer of the rank of a police inspector. the pota, unlike crpc does not contain any provision crl. a. nos. 2295 - 2296 of 2010 - 93 - where the powers of the i. o could be delegated to any other person. thus, it was contented that any investigation, if carried out by any officer below the rank of acp is illegal and evidence, if any, collected during such investigation could not be looked at. findings of this court : 72. we have heard the rival factual and legal contentions raised at length for a number of days and perused in detail the written submissions on record produced by the learned counsel representing both the parties. we have also perused the material objects and evidence on record available with this court in connection with this case. the following points that would arise in these appeals for the purpose of adjudication of the appeals by this court are : 1. whether sanction given by the gujarat state government dated 21. 11. 2003 in this case is in compliance with section 50 of pota? crl. a. nos. 2295 - 2296 of 2010 - 94 - 2. whether the confessional statements of the accused persons were recorded as per the procedure laid down in section 32 of pota, crpc and the principles laid down by this court? 3. whether the statements of the accomplices disclosing evidence of the offences, and the connection of the accused persons to the offence, can be relied upon to corroborate their confessional statements? 4. whether the two letters in urdu presented as ex. 658 which have been translated in english vide ex. 775, were found from the pockets of the trousers of the fidayeens who were killed in the attack? 5. whether the letters allegedly found from the pockets of the trousers of the fidayeens were written by a

- 4? 6. whether there is any evidence apart from the retracted confessional statement of a - 6 which connects him to the offence? 7. whether there is any independent evidence on record apart from the confessional statements recorded by the police, of the accused persons and the accomplices, to hold them guilty of the crime? 8. whether a - 2 to a - 6 in this case are guilty of criminal conspiracy under section 120 - b ipc? 9. whether the concurrent findings of the courts below on the guilt of the accused persons can be interfered with by this court in exercise of its appellate jurisdiction under article 136 of the constitution? 10. what order? we will now proceed to answer each point in detail. 73. justice vivian bose while dealing with the incipient constitution in the case of state of west bengal v. anwar ali sarkar38, made an observation which is very pertinent to be quoted herein, which reads thus : pota was repealed for the gross violation of human rights it caused to the accused persons due to abuse of power by the police. this is an important aspect to be kept in mind while deciding this case and hence, it was pertinent to mention this in the beginning to say that we are wary of the abuse the provisions of this act might bring. and we are conscious of it. answer to point no. 174. it was contended by ms. kamini jaiswal, the learned counsel for a - 6 that a perusal of the statement of pw - 88 would show that not all documents pertaining to the investigation were placed before the sanctioning authority and that it was only on the crl. a. nos. 2295 - 2296 of 2010 - 98 - approval of the home minister of the state of gujarat to prosecute the accused, that sanction as required under section 50 of pota was granted in this case. pw - 88 kuldeep chand kapoor ias, principal secretary, home department, had stated in his statement ( ex. 497 ) recorded before the special court ( pota ) as under : i do not agree to the suggestion that neither minister nor i applied mind while granting sanction nor officer below also applied mind for such a grant. ( emphasis laid by this court ) ( translation extracted from the additional documents submitted on behalf of state of gujarat ) pw - 88, in his deposition had stated that pw - 126 had forwarded to him the relevant documents as aforementioned for the

purpose of deciding whether it was a fit case for granting sanction under section 50 of pota. he had reiterated in his deposition that he had perused all these documents, especially patrak - a, which contained the details of the two urdu letters crl. a. nos. 2295 - 2296 of 2010 - 101 - and the opinion of the handwriting expert from the fsl and patrak b, the contents of which were not mentioned in his statement, and also the details of the arrest of the accused persons. but glaringly, pw - 88 had stated in his deposition that he had not enquired about whether there were any investigation papers regarding the involvement of a - 6 in the crime by the crime branch, ahmedabad, at jammu and kashmir. this aspect is important as he had stated that he had no knowledge of whether the custody of a - 6 was taken in accordance with due process of law. he further stated that he had verified the case papers and had satisfied himself that section 52 of pota had been complied with completely but in the very next sentence, he stated : 75. it has been held by this court that all the relevant documents required for granting sanction shall be presented before the sanctioning authority so that the sanction can be granted on the basis of relevant material information and documents collected during the course of investigation with respect to the crime. in the case of rambhai nathabhai gadhvi & ors. crl. a. nos. 2295 - 2296 of 2010 - 103 - v. state of gujarat39, this court, while examining a similar sanction order as provided under section 15 of tada ( repealed ), has held as under : 9. in this case the prosecution relies on ext. 63, an order issued by the director general of police, ahmedabad, on 3 - 9 - 1993, as the sanction under section 20 - a ( 2 ) of tada. we are reproducing ext. 63 below : sr. no. j - 1 / 1909 / 1 / khambalia 55 / 93 director general of police, dated 3 - 9 - 1993 gujarat state, ahmedabad. perused : ( 1 ) fir in respect of offence registered no. 55 / 93 at khambalia police station 25 ( 1 ) ( b ) ( a ) ( b ) of arms act and sections 3, 4 and 5 of the tada. ( 2

) application sent by dsp jamnagar vide his letter no. rb / d / 122 / 1993 / 1820 dated 9 - 8 - 1993. having considered the fir in respect of offence registered no. 55 / 93 at khambalia police station district jamnagar under section 25 ( 1 ) ( b ) ( a ) ( b ) of arms act and sections 3, 4 and 5 of tada and letter no. rb / d / 122 / 1993 / 1820 of dsp dated 9 - 8 - 1993 seeking permission to apply the provisions of tada carefully, i a. k. tandon, director general of police, gujarat state, ahmedabad under the powers conferred under the amended provisions of tada ( 1993 ) section 20 - a ( 2 ) give permission to add sections 3, 4 and 5 of tada. a. k. tandon director general of police ahmedabad gujarat 10. apparently ext. 63 makes reference only to two documents which alone were available for crl. a. nos. 2295 - 2296 of 2010 - 105 - the director general of police to consider whether sanction should be accorded or not. one is the fir in this case and the other is the letter sent by the superintendent seeking permission or sanction. no doubt in that letter to the director general of police the superintendent of police had narrated the facts of the case. but we may observe that he did not send any other document relating to the investigation or copy thereof along with the application. nor did the director general of police call for any document for his perusal. all that the dgp had before him to consider the question of granting sanction to prosecute were the copy of the fir and the application containing some skeleton facts. there is nothing on record to show that the director general of police called the superintendent of police at least for a discussion with him. ( emphasis laid by this court ) it was further held by this court in the case of anirudhsinhji karansinhji jadeja and anr. v. state of gujarat40, as under : while deposing before the special court ( pota ), pw - 88 stated that he had not discussed anything with the home minister regarding the grant of sanction and the minister had simply signed the proposed note as a mark of approval. pw - 88 further stated that he had not crl. a. nos. 2295

- 2296 of 2010 - 108 - discussed anything with the i. o about granting sanction in the present case. however, the special court ( pota ) erroneously justified the granting of sanction on the ground that the learned counsel for a - 2 and a - 4 before the special court ( pota ), mr. r. k. shah, did not insist on examination of the internal note and at no stage was such a request made in writing. 76. in the case of mansukhlal vithaldas chauhan v. state of gujarat41, it has been held by this court as under : 77. however, the present case does not show that the sanctioning authority had applied its mind to the satisfaction as to whether the present case required granting of sanction. the prosecution had failed to prove that the sanction was granted by the government either on the basis of an informed decision or on the basis of an independent analysis of fact on consultation with the investigating officer. this would go to show clear non - application of mind by the home minister in granting sanction. therefore, the crl. a. nos. 2295 - 2296 of 2010 - 110 - sanction is void on the ground of non - application of mind and is not a legal and valid sanction under section 50 of pota. answer to point no. 278. to begin with, the provisions for recording confessional statements can be found in crpc under section 164 which reads as : ( 6 ) the magistrate recording a confession or statement under this section shall forward it to the magistrate by whom the case is to be inquired into or tried. however, caution against the use of confession statements made by accused persons before the police, is specifically provided in section 162 of the crpc, which reads as : explanation. - an omission to state a fact or circumstance in the statement referred to in sub - section ( 1 ) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. the caution against the use of confessional statements of an accused given to police as incriminating evidence stems from article 20 ( 3 ) of the constitution which provides that no person shall be compelled to be a witness against himself. however, pota makes a departure from the above principle through section 32 which reads as under : crl. a. nos. 2295 - 2296 of 2010 - 114

- ( 5 ) the chief metropolitan magistrate or the chief judicial magistrate, shall, record the statement, if any, made by the person so produced and get his signature or thumb crl. a. nos. 2295 - 2296 of 2010 - 115 - impression and if there is any complaint of torture, such person shall be directed to be produced for medical examination before a medical officer not lower in rank than an assistant civil surgeon and thereafter, he shall be sent to judicial custody. since this act makes a departure from the established criminal jurisprudence as well as the provisions of the constitution, the constitutionality of the act came to be challenged before this court in the case of peoples union of civil liberties v. union of india42. the court upheld the constitutionality of the act after taking into account all the provisions which seemingly violate the fundamental rights guaranteed under the constitution. for the purpose of this case, we intend to record the finding of this court with respect to the provisions of section 32. the relevant paragraphs of the case read as under : 42 ( 2004 ) 9 scc 580 crl. a. nos. 2295 - 2296 of 2010 - 116 - 63. concerning the validity and procedural difficulties that could arise during the process of recording confessions, the petitioners submitted that there is no need to empower the police to record confession since the accused has to be produced before the magistrate within forty - eight hours, in that case the magistrate himself could record the confession ; that there is no justification for extended the time limit of forty eight hours for producing the person before the magistrate ; that it is not clear in the section whether the confession recorded by the police officer will have validity after magistrate has recorded the fact of torture and has sent the accused for medical examination ; that it is not clear as to whether both the confession before the police officer as well as confessional statement before the magistrate shall be used in evidence ; that the magistrates cannot be used for mechanically putting seal of approval on the confessional statements by the police ; that, therefore, the section has to be nullified. validity of this section was defended by the learned attorney general by forwarding the arguments that the provisions relating to the admissibility of confessional statements, which is similar to that of section 32 in pota was upheld in kartar singh case ; that the provisions of pota are an improvement over tada by virtue of enactment of sections 32 ( 3 ) to 32 ( 5 ) ; that the general principles of law regarding the admissibility of a confession

##al statement is applicable under pota ; that the provision which entails the magistrate to test and examine the voluntariness of a confession and complaint of torture is an additional safeguard and does not crl. a. nos. 2295 - 2296 of 2010 - 117 - in any manner inject any constitutional infirmity ; that there cannot be perennial distrust of the police ; that parliament has taken into account all the relevant factors in its totality and same is not unjust or unreasonable. 64. at the outset it has to be noted that section 15 of tada that was similar to this section was upheld in kartar singh case ( pp. 664 - 83 of scc ). while enacting this section parliament has taken into account all the guidelines, which were suggested by this court in kartar singh case. main allegation of the petitioners is that there is no need to empower the police to record confession since the accused has to be produced before the magistrate within forty - eight hours in which case the magistrate himself could record the statement or confession. in the context of terrorism the need for making such a provision so as to enable police officers to record the confession was explained and upheld by this court in kartar singh case ( p. 680 para 253 of scc ). we need not go into that question at this stage. if the recording of confession by police is found to be necessary by parliament and if it is in tune with the scheme of law, then an additional safeguard under sections 32 ( 4 ) and ( 5 ) is a fortiori legal. in our considered opinion the provision that requires producing such a person before the magistrate is an additional safeguard. it gives that person an opportunity to rethink over his confession. moreover, the magistrate s responsibility to record the statement and the enquiry about the torture and provision for subsequent medical treatment makes the provision safer. it will crl. a. nos. 2295 - 2296 of 2010 - 118 - deter the police officers from obtaining a confession from an accused by subjecting him to torture. it is also worthwhile to note that an officer who is below the rank of a superintendent of police cannot record the confessional statement. it is a settled position that if a confession was forcibly extracted, it is a nullity in law. non - inclusion of this obvious and settled principle does not make the section invalid. ( see : kartar singh case, p. 678, para 248 49 of scc ). ultimately, it is for the court concerned to decide the admissibility

of the confession statement. ( see : kartar singh case p. 683, para 264 of scc ). judicial wisdom will surely prevail over irregularity, if any, in the process of recording confessional statement. therefore we are satisfied that the safeguards provided by the act and under the law are adequate in the given circumstances and we don t think it is necessary to look more into this matter. consequently we uphold the validity of section 32. ( emphasis laid by this court ) 79. the provisions of a special act prevail over the provisions of general act. since the constitutionality of the pota was declared as valid by this court, its provisions would prevail over crpc. however, considering the stringency of the provisions of pota crl. a. nos. 2295 - 2296 of 2010 - 119 - and the grave consequences that misuse of the act might carry i. e, violation of right to life and personal liberty, we need to ensure that the guidelines laid down in the act are rigorously observed while recording the confessional statements of the accused persons. we will examine herein the various mandatory provisions to be followed while recording the confessional statements and whether the same have been followed in the instant case. 80. the learned senior counsel appearing on behalf of a - 2, a - 3 and a - 4 submitted that the mandatory provisions laid down in section 32 were not followed by pw - 78 mr. sanjaykumar gadhvi while recording their confessional statements. it was argued by the learned senior counsel that section 32 ( 2 ) had not been complied with since the accused persons were not statutorily informed in writing that they were not bound to make confessional statements and their statements, if made, shall be used against them. the crl. a. nos. 2295 - 2296 of 2010 - 120 - learned senior counsel on behalf of the prosecution, on the other hand contended that the statutory mandates had been complied with by the police. we have perused the evidence on record in this aspect. we have found stark discrepancies in the manner in which the statements of the accomplices and those of the accused persons were recorded. while the statements of the accomplices in the present case, namely - pw - 50, pw - 51 and pw - 52 were preceded by written records of cautions in the same document, the confessional statements of the accused persons do not show such caution. on the other hand, the intimation by the dcp sanjay

##kumar gadhvi ( pw - 78 ) appeared on a separate documents marked as separate exhibits from the confessions. the same are as follows : 82. the intimation letters of caution written by pw - 78 fail to prove that the process of intimation preceded the recording of confessional statements as a continuous process. on the other hand, the letters of intimation and the confessional statements exist as crl. a. nos. 2295 - 2296 of 2010 - 126 - disjunctive evidence, failing to prove the required chain of procedure, i. e, that the letters of caution precede the confessional statements and not vice versa. further, in the instant case, the cjm ( pw - 99 : ex. 568 ) during cross examination before the special court ( pota ) by the learned counsel for the accused persons, on being asked about sending the accused to judicial custody after confession, stated : in the case of mohammad ajmal mohammad amir kasab alias abu mujahid v. state of maharashtra44, the accused was willing to make confessional statement 44 ( 2012 ) 9 scc 1 crl. a. nos. 2295 - 2296 of 2010 - 127 - while he was in police custody. yet, his confession was deferred on the ground that he shall be sent to judicial custody after the confession was made before the cjm and this would hinder the investigation procedure. however, in the present case, presenting the accused persons before the cjm for half an hour was a mere formality to show compliance with the provisions of sections 32 ( 4 ) and 32 ( 5 ) of pota since they were sent back to police custody immediately after being presented before the cjm. 83. in the present case, the cjm ( pw - 99 : ex. 568 ), during cross examination went on to record that : 84. now, we proceed to examine the statement of pw - 78, dcp mr. sanjaykumar gadhvi ( ex. 452 ), who recorded the confessional statements of the accused persons. on being cross examined by the learned counsel for a - 1, a - 3 and a - 5, he stated as under : ( translation extracted from the additional documents submitted on behalf of the state of gujarat ) further, during cross examination by the learned counsel for a - 2 and a - 4, he stated that : it is pertinent to mention here that the two

exhibits referred to supra, namely, the letter of intimation and the statements of confession, in the case of each of the accused persons, are of the same day. it has been contended by the learned senior counsel of the accused persons that not enough time was given to them to reflect on the incident before making confessional statements. they were given a token amount of time i. e., 15 minutes to think and reflect and thereafter the recording of confessional statements began, which fact is on record as per the statement of pw - 78, who recorded their confessional statements. while it has been laid down by this court that the amount of time to be given for reflection before confession depends on the facts and circumstances of the case, it is imperative to bear in mind that in the present case, the accused persons crl. a. nos. 2295 - 2296 of 2010 - 134 - were making confessions after a period almost 11 months after the incident. hence, a mere period of 15 minutes does not appear to be reasonable time for reflection on the incident of the attack and their involvement in the same. in this regard, we wish to mention the observation made by this court on this issue. in the case of state of rajasthan v. ajit singh & ors. 45, this court observed as follows : ( emphasis laid by this court ) further, in the case of ranjit singh v. state of punjab46, which case is relied upon in the case of ajit singh ( supra ) this court observed as under : 13. this court further held : - " however, speaking generally, it would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded. in our opinion, in the circumstances of this case it is impossible to accept the view that enough time was given to the accused to think over the matter. " 20. in the facts and circumstances of the present case the grant of half an hour to the accused to think over before recording their confessional statement cannot be held to be a reasonable period. we do not think that is safe to base conviction on such confessional statements. further, on the facts of the present case, conviction cannot be maintained on the sole testimony of two police officials

. it may also be noticed that although pw6 chander bhan, armourer, was examined by the prosecution to prove that the weapons were in working conditions, no effort was made to prove crl. a. nos. 2295 - 2296 of 2010 - 139 - that the ammunition or the empties matched the weapons. ( emphasis laid by this court ) therefore, in the given facts and circumstances on record and based on the legal principles laid down by this court, we are of the opinion that enough time was not given to the accused persons to record their confessional statements, particularly in the present case since they were making confessions after 11 months of the incident. 86. it is also pertinent to take note of the callous manner in which pw - 99 had discharged his duty in the present case. since a - 2 and a - 4 made confessional statements on the same day, they were produced before the cjm pw - 99 the very next day. it is pertinent therefore, to note the observation made by him with respect to a - 2 and a - 4. the statement of pw - 99 with respect to a - 2 is recorded as under : chief judicial magistrate rural ( emphasis laid by this court ) ( translation extracted from the additional documents submitted on behalf of the appellants ) the statement of cjm with respect to the a - 4 is as under : sd / - illegible chief judicial magistrate ahmedabad ( rural ) old high court, ahmedabad ( emphasis laid by this court ) ( translation extracted from the additional documents submitted on behalf of the appellants ) crl. a. nos. 2295 - 2296 of 2010 - 141 - from the above statements of the cjm pw - 99, it can be inferred that he was able to record the statement of the accused persons, read it over to them and enquire about any coercion and torture, all in a period of half an hour. it is highly improbable that a confessional statement running to more than 15 pages could be read back to them within half an hour. the statement of pw - 99 on examination in chief and also on cross examination has been mentioned above and it is clear that he did not enquire about the basic compliances he was required to make himself aware of, to ensure fair investigation against the accused persons. his conduct in recording of statement under section 32 ( 5 ) of pota merely resembles that of a passive reluctant officer involved in some

procedural formality. 87. it is pertinent to note here that while pota makes a departure from crpc in that it makes confessional statements made before a police officer admissible, crl. a. nos. 2295 - 2296 of 2010 - 142 - the procedural safeguards therein are not a mechanical formality. on the other hand, it should be able to inspire confidence to show that the procedure has been scrupulously followed while recording confessional statements particularly because of the grave consequences which follow such statements, which might result in deprivation of life and personal liberty of the person, which is a fundamental right guaranteed by the constitution that can be taken away only by following the procedure established by law. therefore, it is incumbent upon the cjm to strictly and scrupulously follow all the statutory procedural safeguards provided for under section 32 of pota. 88. further, the other statutory mandate under section 32 of pota is that the person making the confessional statement shall be produced for medical examination and thereafter, be sent to judicial custody after the cjm records the statement of the accused person. the question which then arises for our consideration is crl. a. nos. 2295 - 2296 of 2010 - 143 - whether this mandate is operative only if the accused makes a complaint of torture before the cjm or whether the cjm is duty bound to send the accused persons to judicial custody as a statutory requirement after recording the statement. it had been contended by the learned senior counsel on behalf of the accused persons that they were subjected to physical torture by the police before the confessional statements were recorded and that they were also kept in police custody in the intervening night between being produced before the cjm and being sent to judicial custody. therefore, though they were subjected to torture, they could not make a complaint before the cjm due to fear and apprehension, since they were taken back to police custody after their statements were recorded. the learned senior counsel for the accused persons, argued that section 32 ( 5 ) unambiguously declares that the accused shall be sent to judicial custody after the recording of the crl. a. nos. 2295 - 2296 of 2010 - 144 - confessional statements, whereas the learned senior counsel for the prosecution contended that the accused must be sent for medical examination only if there is a complaint of torture and only in that case, must he be sent to judicial custody. we are unable to agree with the argument of the learned senior counsel for the prosecution. firstly, the

use of the phrase, shall be sent to judicial custody after confession is a mandatory requirement in comparison to the use of an alternative term may which gives discretionary power to the cjm. further, this court in the case of state ( nct of delhi ) v. navjot sandhu47, has unambiguously observed as under : therefore, it is submitted that there was perfect compliance with sub - sections ( 2 ) & ( 3 ). the next important step required by sub - section ( 4 ) was also complied with inasmuch as afzal was produced before the additional chief metropolitan magistrate - pw63 on the very next day i. e. 22. 12. 2001 along with the confessional statements kept in a sealed cover. the learned magistrate opened the cover, perused the confessional statements, called the maker of confession into his chamber, on being identified by pw80 - acp and made it known to the maker that he was not legally bound to make the confession and on getting a positive response from him that he voluntarily made the confession without any threat or violence, the acmm recorded the statement to that effect and drew up necessary proceedings vide exts. pw63 / 5 and pw63 / 6. it is pointed out that the accused, having had the opportunity to protest or complain against the behavior of police in extracting the confession, did not say a single word denying the factum of making the confession or any other relevant circumstances impinging on the correctness of the confession. it is further pointed out that afzal and the other accused were also crl. a. nos. 2295 - 2296 of 2010 - 146 - got medically examined by the police and the doctor found no traces of physical violence. it is therefore submitted that the steps required to be taken under sub - sections ( 4 ) & ( 5 ) were taken. however, the learned counsel for the state could not dispute the fact that the accused afzal was not sent to judicial custody thereafter, but, on the request of the i. o pw80, the acmm sent back afzal to police custody. such remand was ordered by the acmm pursuant to an application made by pw80 that the presence of afzal in police custody was required for the purpose of further investigation. thus, the last and latter part of sub - section ( 5 ) of section 32 was undoubtedly breached. to get over this difficulty, the learned counsel for