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the state made two alternative submissions, both of which, in our view, cannot be sustained. 178. firstly, it was contended that on a proper construction of the entirety of sub - section ( 5 ) of section 32, the question of sending to judicial custody would arise only if there was any complaint of torture and the medical examination prima facie supporting such allegation. in other words, according to the learned counsel, the expression'thereafter'shall be read only in conjunction with the latter part of sub - section ( 5 ) beginning with'and if there is any complaint'and not applicable to the earlier part. in our view, such a restrictive interpretation of sub - section ( 5 ) is not at all warranted either on a plain or literal reading or by any other canon of construction including purposive construction. the other crl. a. nos. 2295 - 2296 of 2010 - 147 - argument raised by the learned counsel is that the provision regarding judicial custody, cannot be read to be a mandatory requirement so as to apply to all situations. if the magistrate is satisfied that the confession appears to have been made voluntarily and the person concerned was not subjected to any torture or intimidation, he need not direct judicial custody. having regard to the circumstances of this case, there was nothing wrong in sending back afzal to police custody. this contention cannot be sustained on deeper scrutiny. 179. the clear words of the provision do not admit of an interpretation that the judicial custody should be ordered by the chief judicial magistrate only when there is a complaint from the'confession maker'and there appears to be unfair treatment of such person in custody. as already stated, the obligation to send the person whose alleged confession was recorded to judicial custody is a rule and the deviation could at best be in exceptional circumstances. in the present case, it does not appear that the acmm ( pw63 ) had in mind the requirement of section 32 ( 5 ) as to judicial custody. at any rate, the order passed by him on 22. 12. 2001 on the application filed by pw80 does not reflect his awareness of such requirement or application of mind to the propriety of police remand in the face of section 32 ( 5 ) of pota. compelling circumstances to bypass the requirement of judicial custody are not apparent from the record. crl. a. nos. 2295 - 2296 of 2010 - 148 - 89. apart from section 32 of pota, section 52 also lays down certain guidelines which are

to be strictly adhered to while recording the confessional statements of an accused person under section 32. on this issue, it was held in navjot sandhu case ( supra ) as under : 90. therefore, we are of the opinion that neither the police officer recording the confessional statements nor the cjm followed the statutory mandates laid down in pota under sections 32 and 52 while recording the confessional statements of the accused persons, and we hold that the confessional statements made by a - 2, a - 3, a - 4 and a - 6 under section 32 of pota are not admissible in law in the present case. therefore, we answer this point in favour of the appellants. we have to observe next therefore, whether the statements of the accomplices can be relied upon to determine the involvement of the accused persons in this case. answer to point no. 3 : 91. section 133 of the indian evidence act 1872 states that : 52 to establish the culpability of the accused. however, one needs to understand the extent of admissibility of such evidence. but prior to that, we also need to emphasize upon the reliability of the evidence given by an accomplice. it has been held by this court in the case of haroom haji abdulla v. state of maharashtra48 as under : this rule of caution or prudence has become so ingrained in the consideration of accomplice evidence as to have almost the standing of a rule of law. 9. the argument here is that the cautionary rule applies, whether there be one accomplice or more and that the confessing co - accused cannot be placed higher than an accomplice. therefore, unless there is some evidence besides these implicating the accused in some material respect, conviction cannot stand. reliance is placed in this connection upon the observations of the judicial committee in bhuboni sahu v. emperor a case in which a conviction was founded upon the evidence of an accomplice supported only by the confession of crl. a. nos. 2295 - 2296 of 2010 - 154 - a co - accused. the judicial committee acquitting the accused observed : though the confessional statement of pw - 51 was followed by a retraction, the same as per the courts below, did not vitiate the admissibility of the evidence against the accused persons. 92. we will therefore, examine the relevant excerpts from the statements of the three accomplices namely, pw - 50, pw - 51 and pw - 52 to

ascertain what each of them had to say about the incident of the attack, on the premise that section 133 of the evidence act states that an accomplice is a competent witness. pw - 50 in his deposition ( ex. 312 ) before the special court ( pota ) stated as under : thereafter we came to know about akshardham tragedy on saudi tv. initially nobody spoke about it, an thereafter one meeting was organized after 8 days, and had said that this is work of jaish - e - mohammed. and abu talah had said to them, we came to know about this from salimbhai and rashidbhai. these people had also said that the persons who had gone to akshardham, their intention was to spread terror and not to kill, their fight was with the police, and had also said that they gave fight for about 10 to 12 hours and got martyred. ( translation extracted from the additional documents submitted on behalf of the appellants ) crl. a. nos. 2295 - 2296 of 2010 - 158 - he further stated during cross examination by learned counsel mr. h. n. jhala for a - 1, a - 3 and a - 5 :.. the meetings which held during nights, the said meetings held in big halls and party plots of riyadh. salimbhai used to take us in these meetings, and therefore, we used to go, he had said you will have to come and therefore we had attended two or three meetings. it was not like that i have to go wherever salimbhai asked to, because he was doing his business and i was doing job. ( translation extracted from the additional documents submitted on behalf of the appellants ) further, on cross examination by learned counsel of a - 2 and a - 4 before the special court ( pota ), pw - 50 deposed as under : it is not true that the fact i am stating about i having been called to hyderabad by salimbhai and adambhai is also stated false by me. ( translation extracted from the additional documents submitted on behalf of the appellants ) pw - 51, in his deposition ( ex. 314 ), particularly indicated the active involvement of a - 2 and also about the involvement of a - 4 and a - 5. the relevant excerpt from the deposition reads as under : 900 / - to him. at that time adam had also said to me that

i had received the guests coming from hyderabad at railway station, who have come to do carnage and have taken them around the city and thereafter have dropped them at the railway station. during those days, while i was passing from opposite of dariapur bawahir hall, at that time mufti abdul qaiyum and maulvi abdullah had met and exchanged greetings. he had asked for well being and at that time mufti abdul qaiyum had informed me that the persons who were to come for carnage, those guests have arrived, and god willing, victory will be ours in short time. some days earlier i had dispute with maulvi abdullah and mufti regarding dissimilarity of dowry in the marriage of refugee girls in camp and since there was no arrangement for distribution of sewing machines. therefore, i had not given interest in their say. thereafter, some days later, while i was sitting at my traders place at gomaji complex, pankornaka, tran darwaja, i got the news that terrorists have attacked akshardham temple. therefore, i got the doubt that this work may have been done by the persons who have come from hyderabad to do carnage. because, these people have said to me the persons for carnage have arrived. crl. a. nos. 2295 - 2296 of 2010 - 166 - ( emphasis laid by this court ) ( translation extracted from the additional documents submitted on behalf of the appellants ) finally, we are extracting the relevant excerpt from the statement made by pw - 52 ( ex. 315 ). the excerpt from his statement reads as under : 93. before examining the evidence of the accomplices on merit, we need to satisfy ourselves that the evidence of the accomplices is acceptable. the twin test on this point has been laid down by this court in the three judge bench decision of this court in ravinder singh v. state of haryana49 which was reiterated in the case of mrinal das & ors. v. state of tripura50, wherein this court in the ravinder singh case ( supra ) held as under : secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. in 49 ( 1975 ) 3

scc 742 50 ( 2011 ) 9 scc 479 crl. a. nos. 2295 - 2296 of 2010 - 171 - a rare case taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the court may be permissible. ordinarily, however, an approver's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal. certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based. ( emphasis laid by this court ) a perusal of the evidence of all the three accomplices in the present case shows that all of them intended to absolve themselves of the liability for the conspiracy with respect to the attack on akshardham, going as far to mention that they were not involved in the incident and only the accused persons knew about the intricate details of the chain of events that ultimately led to the execution of their plan of carnage. even then, if, we were to presume that the accomplices have crl. a. nos. 2295 - 2296 of 2010 - 172 - implicated themselves by mentioning that they were aware about some incident which was about to happen and thus, were part of the criminal conspiracy, the evidence of the accomplices fail the second test, in that it fails to prove the guilt of the accused persons beyond reasonable doubt. all the three accomplices mentioned about the plan of carnage which the accused persons had planned together. however, no link can be established between the accused persons and the attack on akshardham since the evidence of the accomplices is far too vague and they fail to provide any form of substantive evidence against the accused persons. therefore, we need to examine the statements of the accomplices in the light of the legal principle laid down by this court in the case of mohd. husain umar kochra etc. v. k. s. dalipsinghji & anr. etc. 51 which held as under : 51 ( 1969 ) 3 scc 429 crl. a. nos. 2295 - 2296 of 2010 - 173 - 21. on the merits, we find that the two courts have recorded concurrent findings

of fact. normally this court does not re - appraise the evidence unless the findings are perverse or are vitiated by any error of law or there is a grave miscarriage of justice. the courts below accepted the testimony of the accomplice yusuf merchant. section 133 of the evidence act says : an accomplice shall be a competent witness against an accused person ; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. illustration ( b ) to section 114 says that the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. the combined effect of sections 133 and 114, illustration ( b ) is that though a conviction based upon accomplice evidence is legal the court will not accept such evidence unless it is corroborated in material particulars. the corroboration must connect the accused with the crime. it may be direct or circumstantial. it is not necessary that the corroboration should confirm all the circumstances of the crime. it is sufficient if the corroboration is in material particulars. the corroboration must be from an independent source. one accomplice cannot corroborate another, see bhiva doulu patil v. state of maharashtra and r. v. baskerville. in this light we shall examine the case of each appellant separately. crl. a. nos. 2295 - 2296 of 2010 - 174 - therefore, in the light of the case mentioned above, we begin with examining in detail the evidence of pw - 50. he has stated in his deposition about watching videos of riots and killing of muslims in gujarat in the house of a - 3 at riyadh, which act, by itself does not constitute a criminal offence. on being asked during the cross examination before the special court ( pota ) if the money donated by the gathering in saudi arabia to a - 3, was used for running the relief camps in gujarat, he was not able to answer for what purpose exactly the money was collected. therefore, at the most, even if his evidence is taken to be true for the sake of argument, some suspicion, if at all, can be cast on the involvement of a - 3 in some sort of illegal activity at the most. but culpability of a person in as grievous an offence as this, cannot be premised on mere suspicion without knowledge of the nature of the illegal activity. 94. next, with respect to pw - 51, the evidence is not

reliable because of two reasons. firstly, according to his evidence, it was reported to him by a - 2 that the fidayeens had arrived from hyderabad which contradicts the claim of the prosecution. secondly, a - 2 did not state anything beyond the alleged arrival of the fidayeens which cannot be connected to the event of attack on akshardham beyond reasonable doubt. it again, merely arouses suspicion about the involvement of a - 2 and the passive approval of a - 4 and a - 5 in the incident. even with respect to pw - 52, other than the fact that he mentioned about a - 2 telling him that they are planning a carnage and that some guests have arrived, no other detail was provided by pw - 52 in his evidence. it is also pertinent to mention here that a - 6 had not been mentioned at all in the evidence of any of the accomplices. therefore, the twin test to establish the credibility of the guilt of the accused crl. a. nos. 2295 - 2296 of 2010 - 176 - persons based on the evidence of the accomplices, fails miserably in the present case. further, on the aspect of guilt to be proved beyond reasonable doubt, it is pertinent to mention the case of vijay kumar arora v. state ( govt. of nct of 52 delhi ), wherein the court held as under : 16. 2. in cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully 52 ( 2010 ) 2 scc 353 crl. a. nos. 2295 - 2296 of 2010 - 177 - established. each fact sought to be relied upon must be proved individually. however, in applying this principle, a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them, on the other. in regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. in dealing with this aspect of the problem, the doctrine of benefit of doubt applies. ( emphasis laid by this court ) 95. thus, as can be seen from the above mentioned case, the evidence of the accomplices at the most, raises

suspicion and conjectures but the same cannot be construed as legal evidence against the accused persons, relying solely on which they can be convicted, as has been done by the courts below. moreover, it is a settled principle of law that the confessional statements of accomplices form a very weak form of evidence, to prove the culpability of the accused persons if the guilt of the accused cannot be crl. a. nos. 2295 - 2296 of 2010 - 178 - proved, independent of the statements of the accomplices. therefore, the same cannot be used to corroborate the confessional statements of an accused. instead, there should be independent evidence to corroborate the evidence of the accomplice to establish the culpability of the accused. in this regard, we intend to rely upon the three judge bench decision of this court as early as 1952 which still holds its field. in the case of kashmira singh v. state of madhya pradesh53, this court held as under : " it does not indeed come within the definition of'evidence'contained in s. 3, the evidence act. it is not required to be given on oath, nor in the presence of the 53 air 1952 sc 159 crl. a. nos. 2295 - 2296 of 2010 - 179 - accused and it cannot be tested by cross examination. " their lordships also point out that it is " obviously evidence of a very weak type...... it is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. ".... 10. translating these observations into concrete terms they come to this. the proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. if it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. but cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. in such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. 11. then, as

regards its use in the corroboration of accomplices and approvers. a co - accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. the danger is in no way lessened when the " evidence " is not on oath and cannot be tested by cross - examination. prudence will dictate the same rule of caution in the case of a witness crl. a. nos. 2295 - 2296 of 2010 - 180 - who though not an accomplice is regarded by the judge as having no greater probative value. but all these are only rules of prudence. so far as the law is concerned, a conviction can be based on the uncorroborated testimony of an accomplice provided the judge has the rule of caution, which experience dictates, in mind and gives reasons why he thinks it would be safe in a given case to disregard it. two of us had occasion to examine this recently in rameshwar v. the state of rajasthan, cri. app. no. 2 of 1951 : ( air 1952 sc 54 ). it follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed. as the privy council observe in bhuboni sahu v. the king, 76 ind. app. 147 at p. 157 : " the tendency is include the innocent with the guilty is peculiarly prevalent in india, as judge have noted on innumerable occasions, and it is very difficult for the court to guard against the danger.... the only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused. " 12. we do not doubt that a rickshaw was used because rickshaw tracks were discovered by the well long before anybody had suggested that a rickshaw had been used. but we find it difficult to resist the inference that this witness was an accomplice so far as the disposal of the body was concerned. consequently, he is in much the same category so far as credibility is concerned. that brings us at once to the rule that save in exceptional crl. a. nos. 2295 - 2296 of 2010 - 181 - circumstances one accomplice cannot be used to corroborate another ; nor can he be used to corroborate a person who though not an accomplice is no

more reliable than one. we have therefore either to seek corroboration of a kind which will implicate the appellant apart from the confession or find strong reasons for using gurubachan's confession for that purpose. of course against gurubachan there is no difficulty, but against the appellant the position is not as easy. we will therefore examine the reliability of gurubachan's confession against the appellant. now there are some glaring irregularities regarding this confession and though it was safe for the sessions judge and the high court to act on it as against gurubachan because he adhered to it throughout the sessions trial despite his pleader's efforts to show the contrary, a very different position emerges when we come to the appellant. the first point which emerges regarding this is that the confession was not made till the 25 - 2 - 1950, that is to say, not until two months after the murder ( emphasis laid by this court ) in the present case, the prosecution did not make any effort to substantiate the evidence of the accomplices with independent material evidence. rather, the confessional statements of the accomplices have been used to corroborate the confessional statements of the crl. a. nos. 2295 - 2296 of 2010 - 182 - accused persons, in the absence of any independent evidence. 96. but, apart from all these aspects on the statements of the accomplices, we fear that the story against the accused persons and its corroboration through the statements of accomplices is an act of concoction to make up a case against them. it was recorded in the statement of pw - 126 that the information regarding pw - 50 was given to him by d. g. vanzara. however, d. g. vanzara had not even been examined in this case and there is no information as to how he came to know about pw - 50 after almost a year of the attack on akshardham. this very important aspect of the lapse in investigation had been ignored by the courts below. the learned senior counsel for the accused persons have contended that there has been a delay of around a year from the time of the attack on akshardham in recording the statements of the accomplices which shrouds the case of the prosecution. crl. a. nos. 2295 - 2296 of 2010 - 183 - we have to accept the contention of the learned senior counsel for the accused persons in this regard as there is an inordinate

delay in recording of the statements of the accomplices and this casts a grave suspicion on the reliability of the testimony of the accomplices. it has been held by this court in the case of state of andhra pradesh v. swarnalatha & ors. 54 as under : 47. all the infirmities and flaws pointed out by the trial court assumed importance, when 54 ( 2009 ) 8 scc 383 crl. a. nos. 2295 - 2296 of 2010 - 184 - considered in the light of the all - pervading circumstance that there was inordinate delay in recording ravji s statement ( on the basis of which the fir was registered ) and further delay in recording the statements of welji, pramila and kuvarbai. this circumstance, looming large in the background, inevitably leads to the conclusion, that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting, highly redolent of doubt and suspicion. ( emphasis laid by this court ) further, pw - 51 on being cross examined by the counsel for a - 1, a - 3 and a - 5, shri h. n. jhala before the special court ( pota ), stated that : prior to the time when i was deposing, i was said that i have to state before the court that guests are going to come and they are terrorists ans they were still reading over the said facts to me. it is true that maulana abdullahmiya leads in prayer in haji saki mosque. it is true that the facts stated by me to have sought rs. 20 lakhs from saudi arabia on phone, the said facts are false. it is true that i have stated in the chief - examination that when i was asked who are guests, at that time i have said that the guests will survey the hindu areas and will do the killings which are to be done, the said facts have been stated falsely. it is true that i stated in examination in chief that while i was passing from the near the bawahir hall, at that time maulana abdullahmiya and mufti abdul qaiyum met me, had exchanged greetings and they also said that the guests have arrived and god willing in some days victory will be ours, the said facts have been stated by me falsely ( translation extracted from the additional documents submitted on behalf of the appellants ) also

on cross examination by adv. shri r. k. shah for a - 2 and a - 4, pw - 51 said : i do not know after how many days these accused persons were brought when i was taken by the crime branch personnel because i could not make out about dates and days. it is true that i was released after two months by the crime branch and remand of the accused had completed prior to the time when i was released. it is true that when i was taken to the magistrate, i was told that this confession could be used against me in the court.. it is true that the statement written by the magistrate sir was written from the statement at crime branch. ( translation extracted from the additional documents submitted on behalf of the appellants ) during cross examination by the special public prosecutor, shri h. m. dhruva, he stated thus : it is not true that i am giving such deposition since i have received threats from the accused persons. it is not true that i received such threats after i deposed on the last court date. ( emphasis laid by this court ) ( translation extracted from the additional documents submitted on behalf of the appellants ) the statement made by pw - 51 during the cross examination along with the legal principle laid down by this court leads us to the conclusion that there was a serious attempt on the part of the investigating agency to fabricate a case against the accused persons and frame them with the help of the statements of the accomplices, since they had not been able to solve the case even after almost a year of the incidence. 97. therefore, we hold that the evidence of the accomplices cannot be used to corroborate the confessional statements of the accused persons in the crl. a. nos. 2295 - 2296 of 2010 - 189 - absence of independent evidence and the delay of more than one year in recording their statements causes us to disregard their evidence. therefore, we answer this point in favour of the appellants. answer to point no. 498. the two urdu letters were mentioned for the first time in the list of muddammal articles ( ex. 524 ) collected from the fidayeens by major lamba ( pw - 91 ) and handed over to pw - 126 by panchnama drawn up for the same ( ex. 440 ). in the same, the mention of the two urdu letters comes as under : pw - 91, in his deposition before the special court ( pota )

( ex. 522 ), had made the following statement : i am shown both the letters written in urdu language mark - p. after seeing that i say that the same were found from pocket of cloth on body of those persons. one letter was found from each both of them, and at backside part of the letter signature has been made by force command brigadier rajsitapati, and i identify his signature. i was knowing him for one year of incident and i was serving with him, therefore i identify his signature. i was commander of task force and brigadier sitapati was as force commander. one maulvi was called in presence of us both and other persons, who was conversant with the urdu language. the letters which were obtained by me from pocket of cloth put on by terrorists, he had done translation of its writing, wherein as per my memory such fact was written that, this attack was by way of reply to the communal riots took place in gujarat state, wherein both terrorists were of atok region of pakistan. i am shown muddamal. after seeing that, i say that, this is the same muddamal, as had been handed over crl. a. nos. 2295 - 2296 of 2010 - 191 - to gujarat police by me after preparing list thereof. ( emphasis laid by this court ) ( translation extracted from the additional documents submitted on behalf of the appellants ) further, during cross examination by the counsel on behalf of the accused persons, pw - 91 deposed that : ( emphasis laid by this court ) ( translation extracted from the additional documents submitted on behalf of the appellants ) crl. a. nos. 2295 - 2296 of 2010 - 193 - the learned senior counsel on behalf of the accused persons had expressed strong suspicion as to whether the letters produced before the court as ex. 658 were the same letters which were found from the pocket of the trousers of the fidayeens. while making the above contention, the learned senior counsel on behalf of the accused persons placed reliance upon the fir registered under section 154 crpc by pw - 126 on 25. 09. 2002 ( ex. 680 ). the fir mentioned about the seizure of some articles from the body of the fidayeens which were mentioned in the list handed over by pw - 91 to pw - 126. it was imperative therefore, on the part

of the prosecution to ensure that brigadier sitapati was required to be examined before the court so as to prove that he signed on the letters marked as ex. 658 and they were the same letters recovered by maj. jaydeep lamba ( pw - 91 ) from the bodies of the fidayeens. otherwise, the absence of such evidence adversely affects the case of the prosecution. crl. a. nos. 2295 - 2296 of 2010 - 194 - however, the statement of pw - 91 under section 161 crpc was not recorded. the necessary implication of this is that he could not have been presented as a chargesheet witness, as his evidence is recorded for the first time before the special court ( pota ). and his statement under section 161 crpc was not taken by the i. o. however, brigadier sitapati, who is the most important witness for proving the recovery of the alleged letters from the pockets of the trousers of the fidayeens, was not examined either under section 161 or before the court. 99. it is a settled position of law in the criminal jurisprudence that a witness, whose evidence is placed reliance upon by the court, has to be examined and questioned during the course of investigation by the police and his name has to appear in the chargesheet so that the accused gets a fair chance to cross examine such witness. it was held in the case of ram crl. a. nos. 2295 - 2296 of 2010 - 195 - lakhan singh & ors. v. state of uttar pradesh55 as under : it is pertinent to mention here that the poor translation of the documents from gujarati language to english submitted by both the parties have majorly inconvenienced us. therefore, instead of relying on either of the versions, particularly the aspect of the statement of the translator, since the same has been majorly contested before us, we intend to closely consider the other relevant evidence on this aspect which is brought to our notice. the excerpts of the translation of letter marked as ex. 775 read as under : pmg raj seethapathi ( translation extracted from the additional documents submitted on behalf of the appellants ) the contents of the letter nowhere mention the name of the place atok in pakistan from where the fidayeens had allegedly come, as had been mentioned by pw - 91 in his deposition before the special

court ( pota ). 101. further, the statement of pw - 105, prakash chandra mehra ( ex. 592 ), police inspector of gandhi nagar only raises our doubts further. pw - 105 stated as under : ( translation extracted from the additional documents submitted on behalf of the appellants ) during the cross examination, he further stated that : the order to hand over the investigation to shri tolia was not of shri singhal, but of shri brahmbhatt. ( translation extracted from the additional documents submitted on behalf of the appellants ) he further stated during the examination by the judge of the special court ( pota ) : 103. therefore, we cannot accept the recording of the high court that the secret behind the crease - free unsoiled and unstained letter lies in the divine philosophy of truth is stranger than fiction for this renowned epithet by the author mark twain comes with a caveat that says, truth is stranger than fiction. fiction must make sense. we accordingly accept the contentions of the learned senior counsel on behalf of the accused persons and hold that the two letters marked as ex. 658 cannot be taken as evidence in order to implicate the accused persons in this crime. hence, we answer this point in favour of the appellants. answer to point no. 5104. the learned senior counsel on behalf of the prosecution, mr. ranjit kumar contended that the two urdu letters allegedly recovered from the pockets of the trousers of the fidayeens had been written by a - 4, as he had admitted the same in his confessional statement as under : during this in the encounter with armed forces, they both terrorists are also killed and one chit each having one kind of urdu writing have been found from pockets of both. i had seen photographs of those chits and photographs of both the terrorists killed afterwards in t. v and newspapers. i identified that those chits are same which i and maulvi abdullah made discussion and both terrorists who died were doctor - 1 and doctor - 2. ( emphasis laid by this court ) crl. a. nos. 2295 - 2296 of 2010 - 207 - ( translation extracted from the additional documents submitted on behalf of the state of gujarat ) therefore, by placing reliance upon the confessional statement of a - 4, read with the contents of the letters

mentioned above and the opinion of the hand writing expert, jagdish bhai ( pw - 89 ) the learned counsel on behalf of the prosecution contended that the alleged letters had been written by a - 4. 105. the learned counsel for the accused persons have contended that the statement under section 161 of the crpc, of the key witness pw - 91, maj. jaydeep lamba was not recorded. we have to accept this contention as the investigating officers have conveniently omitted to record the statements of witnesses which could have established beyond reasonable doubt that the letters were the same ones as discovered from the site of offence. they tied a - 4 to the letters merely based on crl. a. nos. 2295 - 2296 of 2010 - 208 - his confessional statement whereas the opinions of the hand writing experts are merely indicative and not conclusive beyond reasonable doubt. we begin with the comment made by the translator of the urdu letters ( pw - 121 : ex. 657 ) who had categorically stated that : ( translation extracted from the additional documents submitted on behalf of the appellants ) but considering the fact that he was not a hand writing expert, we shall refer to the statement of the evidence of the hand writing expert, jagdish bhai ( pw - 89 : ex. 507 ) who had assigned the following reasons for recording his finding in his report that the hand writing of a - 4 matches with the letters allegedly found from the pockets of the trousers of the fidayeens : however, during cross examination by the learned counsel on behalf of a - 2 and a - 4 while deposing before the court, he has stated as under : it is true reason that there is no mention about the discussion of the reasons given by me with the expert of hyderabad. it is true that in the reasons given by me, there is no signature of any examiner except for me. it is true that in my reasons, general characteristics, which are given, in the said, details like measurements have not been mentioned. it is true that the sample documents were compared mutually has not been mentioned in my reasons. it is true that the specimen and natural hand writings were compared with each other, but it is not written in my reasons. it is true that i have written natural variations in my reasons, but i have not mentioned details about what these variations are. ( translation extracted from the additional documents submitted on behalf of the appellants ) on cross

examination by the judge of the special court ( pota ) however, he was asked whether the hand writing expert can also give opinion on the language which is not known to him. to this, he answered that : 107. after perusing the above mentioned evidence on record, we decipher that the prosecution had contended that the urdu letters ( ex. 658 ) were written by a - 4 by only placing reliance upon the opinion of the crl. a. nos. 2295 - 2296 of 2010 - 214 - handwriting expert, pw - 89. however, the certificate of the seniormost official of fsl, hyderabad was not admitted on record till a much later stage, after the charge sheet was prepared and pw - 89 gave his statement before the court. it was at this stage that his evidence was admitted with protest from the defence. pw - 89 in his evidence had stated that he has basic knowledge of urdu and cannot differentiate between urdu, arabic and persian. he further stated that the opinion of handwriting experts is not conclusive. therefore, we hold that the prosecution had failed to establish beyond reasonable doubt that the urdu letters ( ex. 658 ) were written by a - 4. accordingly, we answer this point in favour of the appellants. answer to point no. 6108. as per the order of the cjm of budgam, jammu and kashmir ( ex. 674 ) dated 11. 10. 2003, a - 6 was arrested from bareilly during investigation in the case fir no. 130 of 2003 for offences under sections 120 - b, 153 - a crl. a. nos. 2295 - 2296 of 2010 - 215 - rpc, section 10 of one c. b. a. act and sections 7 and 27 of arms act registered at the police station at nowgam, jammu and kashmir. a car bearing registration no. choix - 3486 was seized as the vehicle was subjected to checking, and arms and ammunitions were recovered from the vehicle. the driver disclosed his name as chand khan, resident of barsia tehsil nawabgunj, dist. bareilly, u. p. the seizure memo was drawn up immediately and a - 6 was taken into custody. he thereafter, allegedly confessed that he was affiliated to militant outfits in the style of lashkar - e - toiba and

was involved in subversive activities outside jammu and kashmir as well. a - 6 had further allegedly confessed that he was using one ambassador car bearing registration no. kmt 413 for subversive activities outside jammu and kashmir, which was recovered by the jammu & kashmir police from the workshop under the name of chand motor khanabai anantnag as stolen property, under section 550 of the crl. a. nos. 2295 - 2296 of 2010 - 216 - jammu and kashmir crpc. thereafter, the car was subsequently handed over to gujarat police, on their requisition, for investigation in the present case which was registered vide fir 314 of 2002. in this regard, we shall examine the statements of police inspector shabbir ahmed ( pw - 123 ), sub - inspector, gulam mahammed ( pw - 124 ) who are from the jammu & kashmir police and ibrahim chauhan, police inspector of crime branch, ahmedabad ( pw - 125 ). 109. the statement of pw - 123 is extracted as under : 110. therefore, it is clear from the deposition of pw - 123 that firstly, a - 6 is not the owner of the car since it was registered in the name of some other person as per the report of r. t. o ( ex. 672 ). secondly, as per the order of the cjm of budgam, jammu and kashmir ( ex. 674 ) dated 11. 10. 2003, a - 6 was not in physical possession of the car which was allegedly used for carrying weapons for the attack on akshardham whereas he was actually found in possession of another car bearing registration no. choix - 3486. finally, though a panchnama was drawn up of the alleged car, by the police of jammu and kashmir, it was for them to hand over the car from their custody to the gujarat crl. a. nos. 2295 - 2296 of 2010 - 219 - police. no panchnama or document of seizure of the car had been produced before us to show that the car was recovered from the workshop / garage of a - 6 or even that the garage / workshop from which the car was allegedly recovered belongs to a - 6. therefore, we cannot see how the car can be linked to a - 6 in the absence of any independent evidence other than

his confessional statement which had been subsequently retracted. 111. it is also of the utmost importance for us to mention the statement of pw - 125, ibrahim chauhan, crime branch, ahmedabad regarding the seizure of the car since it is reflective of how casually and with what impunity the investigation has been conducted in the instant case by the investigating officer. pw - 125, who was a part of the investigation of this case in kashmir, and who was also responsible for escorting a - 2, a - 4 and a - 5 to srinagar, kashmir, states as under : crl. a. nos. 2295 - 2296 of 2010 - 220 - answer to point no. 7112. the independent documentary evidence produced before us against the accused persons are the two letters in urdu allegedly recovered from the pockets of the trousers of the fidayeens, upon which the prosecution had placed strong reliance to establish the involvement of a - 4 in the offence. the other independent evidence is the blue ambassador car in which a - 6 was alleged to have brought the fidayeens and the weapons to ahmedabad through bareilly from jammu and kashmir. we have already ascertained while answering the point about the above letters that crl. a. nos. 2295 - 2296 of 2010 - 223 - neither the two letters produced before the special court ( pota ) nor the procedure by which the ambassador car was seized by the gujarat police, inspires confidence in our minds to show that these are genuine evidence to implicate the accused persons in the offence. the only other material evidence on record on the basis of which the prosecution had argued the involvement of the accused persons, are the confessional statements given by a - 1, a - 2, a - 3, a - 4 and a - 6 before the gujarat police under section 32 of pota. we have already mentioned that the confessional statements had not been recorded as per the strict statutory mandate provided for under section 32 of pota, which made their confessional statements inadmissible as evidence. however, we also intend to record certain other reasons as to why the conviction and sentencing of the accused persons by the special court ( pota ), which was upheld by the high court in crl. a. nos. 2295 - 2296 of 2010 - 224 - the appeals and reference order, is liable to be set aside. 113. we cannot lose sight of the fact that the

confessional statements of the accused persons were recorded by the dcp, pw - 78 in extremely suspicious circumstances. we have already held that the procedure of presenting them before the cjm and subsequently sending them to judicial custody mandatorily had been reduced to a mere, empty formality. this above said procedural lapse coupled with the fact that the letters of caution to be given to them, before the making of such statements, mandated under section 32 ( 2 ) of pota, and the process of recording their confessional statements were done in an extremely casual manner which is not the conduct expected from such high ranking police officers of the state government. since we have already recorded our findings and reasons in this regard, while answering crl. a. nos. 2295 - 2296 of 2010 - 225 - the point no. 2 on confessional statements, we therefore do not intend to reiterate the same here. 114. even if the confessional statements of the accused persons are made admissible, that alone could not have been made the only ground for convicting them, as it would amount to a violation of the legal principle laid down in the five judge bench decision of this court in the case of hari charan kurmi and jogia hajam v. state of bihar56, wherein this court held as under : 38 cal. 559 at p. 588 a confession can only be used to " lend assurance to other evidence against a co - accused ". in peryaswami moopan v. emperor, i. l. r. 54 mad. 75 at p. 77 : ( air 1931 mad. 177 at p. 178 ) reilly, j., observed that the provision of s. 30 goes not further than this, " where there is evidence against the co - accused sufficient, if believed, to support his conviction, then the kind of confession described in s. 30 may be thrown into the scale as an additional reason for believing that evidence. " in bhuboni sahu v. the king, 76 ind app 147 at p. 155 : ( air 1949 pc 257 at p. 260 ) the privy council has expressed the same view. sir john beaumont who spoke for the board, observed that, a confession of a co - accused is obviously evidence of a very weak type. it does not indeed come within the definition of " evidence " contained in s. 3 of the evidence act. it is not required to be given on oath

, nor in the presence of the accused, and it cannot be tested by cross - examination. it is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. s. 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act ; but the section does not say that the confession is to amount to proof. clearly there must be other evidence. the confession is only one element in crl. a. nos. 2295 - 2296 of 2010 - 227 - the consideration of all the facts proved in the case ; it can be put into the scale and weighed with the other evidence. " it would be noticed that as a result of the provisions contained in s. 30, the confession has no doubt to be regarded as amounting to evidence in a general way. because whatever is considered by the court is evidence ; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. thus, though confession may be regarded as evidence in that generic sense because of the provisions of s. 30, the fact remains that it is not evidence as defined by s. 3 of the act. the result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co - accused person ; 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 the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. that, briefly stated, is the effect of the provisions contained in s. 30. the same view has been expressed by this court in kashmira singh v. state of madhya pradesh 1952 scr 526 : ( air 1952 sc 159 ) where the decision of the privy council in bhuboni sahu's case, 76 ind app 147 ( air 1949 pc 257 ) has been cited with approval... 14. the statements contained in the confessions of the co - accused persons stand on a different footing. in cases where such confessions are relied upon by the prosecution against an crl. a. nos. 2295 - 2296 of 2010 - 228 - accused person, the court cannot begin with the

examination of the said statements. the stage to consider the said confessional statements arrives only after the other evidence is considered and found to be satisfactory. the difference in the approach which the court has to adopt in dealing with these two types of evidence is thus clear, well - understood and well - established. it, however, appears that in ram prakash's case, 1959 scr 1219 : ( air 1959 sc1 ), some observations have been made which do not seem to recognize the distinction between the evidence of an accomplice and the statements contained in the confession made by an accused person. ( emphasis laid by this court ) 115. again, in the present case, there is nothing on record other than the statements of the accomplices ( of which pw - 51 retracted from his confession ) and the confessional statements of the accused persons which were retracted and this aspect of the matter was required to be considered by the courts below while recording the findings on the charges framed against the accused persons. the retraction of the confessional statements of the accused persons a - 2, a - 3, a - 4 and a - 6 and that of pw - 51 revealed that they crl. a. nos. 2295 - 2296 of 2010 - 229 - were tortured by the police to extract their confessional statements. therefore, the confessional statements of a - 2, a - 3, a - 4 and a - 6 cannot be relied upon for this reason also i. e they have been retracted vide exs. 779 ( a - 2 ), 780 ( a - 4 ), 33 ( a - 3 ) and 32 ( a - 6 ). a - 2 had retracted his confessional statement vide ex. 779, wherein he had detailed the account of how he was detained on the charge of autorickshaw theft and was brought to the crime branch, ahmedabad and forced to confess regarding the crime of attack on the akshardham temple. he had stated that he was put to intense physical and psychological torture and the police threatened him and his family members with the motive of eliciting a confession out of him which he stated to be false as he is not guilty of the same and had been falsely charged. relevant portions of the retraction statement ( ex. 779 ) are extracted hereunder in order to examine the import of his statement of retraction : then they brutally beat me. there was bleeding in back portion.... they gave me currents. then i

told them, sir, have mercy on me. i am not culprit. pardon me. please don t make me criminal wrongly. i do not know anything in this regard. they threatened me to harass me and my family members. even though i have not committed any crime, they wanted to agree akshardham crime. ( emphasis laid by this court ) ( translation extracted from the additional documents submitted on behalf of the state of gujarat ) a - 2 further stated : 116. excerpts from the statement of retraction of a - 4 ( ex. 780 ), reads as under :... i swear i have been wrongly trapped by crime branch officers in akshardham case. i am absolutely innocent and do not know anything about akshardham case... ( emphasis laid by this court ) ( translation extracted from the additional documents submitted on behalf of state of gujarat ) this court in the case of navjot sandhu ( supra ) while deciding whether the same rule of prudence for confessions under the general law would apply for confessions under the pota as well, held as under : the confessional statement recorded by the police officer can be the basis of conviction of the maker, but it is desirable to look to corroboration in a broad sense, when it is retracted. the non obstante provision adverted to by the learned judges should not, in our considered view, affect the operation of the general rule of corroboration broadly. crl. a. nos. 2295 - 2296 of 2010 - 240 - further, in the case of parmanada pegu v. state of assam57, this court relied upon many judgments, most important of which is subramania goundan v. state of madras58 which was relied upon in the case of navjot sandhu ( supra ), in order to hold that the confessional statement of the accused which is retracted, cannot be relied upon to convict him in the absence of corroborating evidence. in the subramania goundan case ( supra ), this court held thus : 3, a - 4 and a - 6 had retracted their confessional statements as per the exhibits aforementioned and all of them had alleged that they were tortured and threatened with dire consequences of death through encounter and death of their loved ones. all the accused persons speak of torture by beating, especially on the legs and this corresponds to their complaints of pain under the

feet. 117. further, a - 5 also made a statement as per ex. 778 that he was tortured in police custody and that he had crl. a. nos. 2295 - 2296 of 2010 - 244 - no role in the conspiracy to attack the akshardham temple and he was being framed in the case. the statements of retraction also referred to the repeated entreaties by accused persons before the special court ( pota ) as well as by a - 2, a - 4 and a - 5, before the dig of police at jammu and kashmir, mr. k rajendra kumar to transfer the case to the cbi for an independent investigation and enquiry. 118. further, a - 6 had also retracted his confessional statement ( ex. 32 ), wherein he had also alleged severe torture and beating by the srinagar police as well as the crime branch, ahmedabad and he alleged that he was arrested at nagpur and sent to srinagar and a compulsory confession had been extracted from him in order to implicate him in the crime. 119. further, with respect to the two urdu letters, which were purportedly written by a - 4, upon which the prosecution placed such an unflinching reliance in crl. a. nos. 2295 - 2296 of 2010 - 245 - order to establish a link between the fidayeens and the accused persons, has already been answered by us in point nos. 4 and 5 to be completely unreliable for the reasons stated by us in this judgment. 120. the story of the prosecution crumbles down at every juncture. most importantly, the case laws relied upon above show that the statements of confession of the accused persons cannot be relied upon if they are retracted, unless corroborated by independent evidence. in this case, as already elucidated, the case of the prosecution rests on the confessional statements on the accused persons, the confessional statements of the accomplices and their evidence and the two urdu letters purportedly found in the pockets of the trousers of the fidayeens and written by a - 4, and apart from this, it is very clear that there is absolutely no independent evidence to implicate the accused persons for the crime. the evidence of the accomplices, pw - 50, pw - 51 and pw - 52 are also rejected crl. a. nos. 2295 - 2296 of 2010

- 246 - for the reasons given in the answer to point no. 3. therefore, there is no independent evidence on record which corroborates the confessions of the accused persons which were subsequently retracted. further, a retracted confessional statement of an accused person cannot be used to corroborate the retracted confessional statement of a co - accused. in the case of aloke nath dutta & ors. v. state of west bengal59, this court held as under : 116. whatever be the terminology used, one rule is almost certain that no judgment of conviction shall be passed on an uncorroborated retracted confession. the court shall consider the materials on record objectively in regard to the reasons for retraction. it must arrive at a finding that the confession was truthful and voluntary. merit of the confession being the voluntariness and truthfulness, the same, in no circumstances, should be compromised. we are not oblivious of some of the decisions of 59 ( 2007 ) 12 scc 230 crl. a. nos. 2295 - 2296 of 2010 - 247 - this court which proceeded on the basis that conviction of an accused on the basis of a retracted confession is permissible but only if it is found that retraction made by the accused was wholly on a false premise....... 117. there cannot, however, be any doubt or dispute that although retracted confession is admissible, the same should be looked with some amount of suspicion - a stronger suspicion than that which is attached to the confession of an approver who leads evidence to the court. ( emphasis laid by this court ) 121. thus, for the above reason also, the confessional statements of the accused persons cannot be relied upon and the case of the prosecution fails. accordingly, we hold that there is no independent evidence on record to prove the guilt of the accused persons beyond reasonable doubt in the face of the retractions and grave allegations of torture and violation of human rights of the accused persons against the police. we accordingly answer this point in favour of the appellants. answer to point no. 8122. the accused persons have been found guilty of the offence of criminal conspiracy by both the courts below. it was contended before us by the learned senior counsel for the prosecution that the accused persons in the instant case are guilty of criminal conspiracy and though the accused persons did not know each other, it is not a prerequisite for establishing the offence of criminal conspiracy provided under section 120 - a of ipc. on the other hand, it was

contended by the learned senior counsel for the accused persons that neither the common intention nor the common object of the accused, i. e attack on akshardham temple in the intervening night between 24. 09. 2002 and 25. 09. 2002, has been established by the prosecution. to begin with, we intend to reiterate the provisions of the relevant section of the ipc. explaining what constitutes the offence of criminal conspiracy, it was held by this court in the case of k. r purushothaman v. state of kerala60 as under : neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. the agreement amongst the conspirators can be inferred by necessary implication. in most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. the 60 ( 2005 ) 12 scc 631 crl. a. nos. 2295 - 2296 of 2010 - 250 - existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. while appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the well - known rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. criminal conspiracy is an independent offence in the penal code. the unlawful agreement is sine qua non for constituting offence under the penal code and not an accomplishment. conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. mere knowledge, even discussion, of the plan would not per se constitute conspiracy. the offence of conspiracy shall continue till the termination of agreement. ( emphasis laid by this court ) 123. the ingredients necessary to establish the offence of criminal conspiracy have been discussed by a three judge bench of this court in the case of ram narayan popli & ors. & ors v. central bureau of crl. a. nos. 2295 - 2296 of 2010 - 251 - investigation61 in a portion of the below para, as under : union of india & ors. 63 that : 124. in the present case, the prosecution had relied upon the information contained

in the confessional 63 1993 ( 3 ) scc 609 crl. a. nos. 2295 - 2296 of 2010 - 254 - statements of the accused persons in order to set up the plea that the offence of criminal conspiracy had been committed by each one of them. a careful examination of this information will reveal that this claim of the prosecution does not hold water. 125. to punish an accused under section 120 - b of the ipc, it is essential to establish that there was some common object to be achieved and that there was an agreement by the accused persons to achieve that object i. e there was a meeting of minds. in the present case, it cannot be said that the conspiracy was hatched by the accused persons in furtherance of some common object. the common object, according to the case of the prosecution was to take revenge for the godhra riots of 2002. but this object is vague, and is not very specific and the charge of criminal conspiracy against the accused persons cannot be proved on its basis. crl. a. nos. 2295 - 2296 of 2010 - 255 - further, even the confessional statements of the accused persons did not help the prosecution to establish the chain of events in pursuance of the alleged conspiracy. in fact, they are highly contradictory and improbable in nature. 126. according to the prosecution, as disclosed in the confessional statements of a - 1, a - 2, a - 3, a - 4 and a - 6, the conspiracy was hatched in saudi arabia, and money was delivered to india through havala ; the two fidayeens were apparently escorted to ahmedabad by one aiyub khan and they also brought the arms and ammunition with them. it was stated that a - 2 then took the fidayeens in his auto rickshaw and helped them reccie places in ahmedabad and gandhinagar, and finally helped them in choosing the akshardham temple at gandhinagar as a suitable place to carry out the attack and hence take the revenge against hindus for the godhra riots. according to the prosecution, a - 2 crl. a. nos. 2295 - 2296 of 2010 - 256 - also stated that the accommodation of the fidayeens was set up at bavahir hall. per contra, as per the confessional statement of a - 6, he was the one who brought the two fidayeens from kashmir

, and drove the car with ammunitions from kashmir to bareilly, and then came to ahmedabad in a train, and carried the ammunitions in bedding. a - 6, according to the prosecution, was also the one who recceied gandhinagar and ahmedabad with the two fidayeens, before finally settling on akshardham as the site of the attack. a - 6 also stated, according to the prosecution, that the fidayeens stayed at the gulshan guest house. interestingly though, neither a - 2 nor a - 6 speak of each other or each other s role in the planning and conspiracy, even though they were both seemingly doing the same task, i. e, of arranging for the accommodation of the fidayeens, and making them reccie the cities of gandhinagar and ahmedabad crl. a. nos. 2295 - 2296 of 2010 - 257 - and we wonder how there can be two versions of the same event. 127. it is true that in order to establish criminal conspiracy, it is not required of every co - conspirator to know the entire sequence of the chain and events, and that they can still be said to be conspirators even if they are only aware of their limited roles and are not able to identify the role of any other conspirator. but that is not the case here. it is not the case here that the knowledge of the conspirators is limited to their role. each accused claims to have complete knowledge of the conspiracy, while contradicting the other s version of the same events to constitute the act of criminal conspiracy. 128. therefore, the confessional statements of the accused persons and the accomplices do not complement each other to form a chain of events leading to the offence. rather, the depositions of the prosecution crl. a. nos. 2295 - 2296 of 2010 - 258 - witnesses were contradictory and disrupt the chain of events and turn it into a confusing story with many discrepancies, defeating the roles of each of the accused persons which have been allegedly performed by them. also, none of the events of the alleged criminal conspiracy was supported by independent evidence that inspires confidence in our minds to uphold the conviction and sentences meted out to the accused persons. 128. hence, we hold that the prosecution has failed to prove beyond reasonable doubt, the guilt against the accused persons, for the offence of criminal conspiracy under section 120 -

b of the ipc. we, therefore answer this point in favour of the appellants. answer to point no. 9 crl. a. nos. 2295 - 2296 of 2010 - 259 - 129. article 136 of the constitution confers appellate jurisdiction on this court, the scope and powers of which has been discussed by this court in a catena of decisions. in the case of arunachalam v. p. s. r. sadhanantham & anr. 64, chinappa reddy, j. observed : but within the restrictions imposed by itself, this court has the undoubted power to interfere even with findings of fact making no distinction between judgment of acquittal and conviction, if the high court, in arriving at those findings, has acted " perversely or otherwise improperly. 64 ( 1979 ) 2 scc 297 crl. a. nos. 2295 - 2296 of 2010 - 260 - ( emphasis laid by this court ) while examining as to whether this court has the power to interfere with the concurrent findings of fact recorded by the courts below, it was held in the case of indira kaur & ors. v. sheo lal kapoor65 as under : v ) where the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the high court are manifestly perverse and unsupportable from the evidence on record130. from the aforementioned two cases, the legal principles laid down regarding the scope and ambit of exercise of this court s power, it is clear that even though the powers under article 136 must be exercised sparingly, yet, there is absolutely nothing in the article which prohibits this court from reversing the concurrent findings of fact by the courts below, if it is of the opinion on the basis of the evidence on record, that affirming the findings of the courts below will result in a grave miscarriage of justice. moreover, it has been held by this court in the case crl. a. nos. 2295 - 2296 of 2010 - 264 - of mohammad ajmal mohammad amir kasab v. state of maharashtra68 that if the case is of death sentence, this court can exercise its power to examine material on record first hand and come to its own conclusion on facts and law, unbound by the findings of the trial court and the high court. 131

. here, we intend to take note of the perversity in conducting this case at various stages, right from the investigation level to the granting of sanction by the state government to prosecute the accused persons under pota, the conviction and awarding of sentence to the accused persons by the special court ( pota ) and confirmation of the same by the high court. we, being the apex court cannot afford to sit with folded hands when such gross violation of fundamental rights and basic human rights of the citizens of this country 68 ( 2012 ) 9 scc 1 crl. a. nos. 2295 - 2296 of 2010 - 265 - were presented before us. the investigation process post akshardham attack happened as under : the incidence of akshardham happened in the intervening nights between 24. 09. 2002 and 25. 09. 2002. an fir was registered by pw - 126 on 25. 09. 2002. according to the instruction of superintendent of police, the investigation of the complaint was handed over to police inspector shri v. r. tolia ( pw - 113 ). the investigation was then handed over to the anti terrorist squad on 03. 10. 2002. the investigation was thereafter handed over to the crime branch which was assigned to pw - 126 on 28. 08. 2003 at 6 : 30 p. m. the statement of pw - 50 was taken at 8 p. m, on the same night of 28. 08. 2003, after receiving verbal instruction from higher officer - d. g. vanzara in the morning. a - 1 to a - 5 were arrested on 29. 08. 2003. pota was invoked on 30. 08. 2003. the i. g. p. kashmir sends a fax message to i. g. p. operations ats gujarat state on 31. 08. 2003 regarding a - 6 being in the custody of kashmir police and that he has stated that he was involved in the akshardham attack. a - 6 was brought to ahmedabad on 12. 09. 2003 and was arrested at 9 : 30 p. m. crl. a. nos. 2295 - 2296 of 2010 - 266 - a - 1 and a - 3 confessed on 17. 09. 2003. a - 2 and a - 4 confessed on 24. 09. 2003. a - 6 confessed on 05. 10. 2003. a - 6 was brought to ahmedabad on 12. 09

. 2003 and was arrested at 9 : 30 p. m. a careful observation of the above said dates would show that the ats was shooting in the dark for about a year without any result. no trace of the people associated with this heinous attack on the akshardham temple could be found by the police. then on the morning of 28. 03. 2003, the case is transferred to crime branch, ahmedabad. this was followed by d. g. vanzara giving instructions to the then - acp g. s. singhal ( pw - 126 ) about one ashfaq bhavnagri ( pw - 50 ). pw - 126 was thereafter made in charge of the case on the same evening at 6 : 30 p. m. and the statement of pw - 50 was recorded at 8 p. m., i. e within one and a half hours. this shrouds our minds with suspicion as to why such a vital witness - d. g. vanzara, who discovered the crl. a. nos. 2295 - 2296 of 2010 - 267 - link to the accused persons, was not examined by the special court ( pota ). the courts below accepted the facts and evidence produced by the police without being suspicious about the extreme coincidences with which the chain of events unfolded itself immediately that is, within 24 hours of the case being transferred to the crime branch, ahmedabad. 132. we are reminded of the legendary lines of justice vivian bose in the case of kashmira singh s case ( supra ) wherein he cautioned that : secondly, the courts below held that the fact that a - 1 to a - 5 did not know a - 6, does not disprove the theory of criminal conspiracy, rather it displays the extreme caution with which the conspiracy was hatched. we are unable to bring ourselves to agree with this reasoning of the courts below, as in the instant case, not only did a - 1 to a - 5 not know a - 6 and vice versa, but also a - 2, a - 4 and a - 6 had narrated different versions of the same story, each of which contradicted the other and was actually fatal to the case of the prosecution. the courts below mechanically and without applying their mind, discarded this contention of the learned counsel on behalf of the accused persons. thirdly, the two urdu letters purported

to have been recovered from the pockets of the trousers of the fidayeens ( ex. 658 ), did not have even a drop of blood, mud or perforation by the bullets, whereas on physical examination of the trousers by us, which are marked as mudammal objects, we found that the clothes on the pockets of the fidayeens were perforated with bullets and smeared with dried blood even after 12 years of the incident. the special court ( pota ) however, did not find it imperative to examine why the letters recovered from the pockets of the trousers of the fidayeens were spotless. it admitted the letters as evidence merely on the basis of the confessional statement of a - 4 who had, in his statement recorded that he had written the letters and had also kept the pen to prove that the letters were written with the same pen. the special court ( pota ) also admitted the letters as evidence on the ground that signatures of brigadier raj sitapati crl. a. nos. 2295 - 2296 of 2010 - 270 - as per the statement of pw - 91 major lamba, were present on those letters. the high court admitted the letters as evidence on the ground that truth is stranger than fiction by overlooking not only the most impossible fact that the letters marked by the police were spotless, but also ignoring the evidence of pw - 105 who in his deposition recorded that there were no signatures of brigadier sitapati or anyone else on the letters when they were handed over to pw - 126. 133. another error of the courts below is reflected in the fact that they have not given the same weightage to the defence witnesses as they have to the prosecution witnesses. the learned senior counsel for the accused persons contended that the courts below should have given same weigthage to the evidence of the defence witnesses as that of the prosecution witnesses. however, the evidence of dw - 3 was not only crl. a. nos. 2295 - 2296 of 2010 - 271 - discarded but also not mentioned in the decision of the special court ( pota ). dw - 3 stated as under : the persons who were taken from dariyapur kalupur under pota were - maulvi ahmed, maulvi abdulla, mufti kayum and many such people. all these people were taken before eight to nine days of the rally. in cross examination by special p

. p. shri h. m. dhruv for the state, dw - 3 states as under : there were two vehicles of police. fifty or sixty women went in them and the rest of them had left. ( emphasis laid by this court ) ( translation extracted from the additional documents submitted on behalf of the appellants ) crl. a. nos. 2295 - 2296 of 2010 - 273 - it has been held by this court in a catena of cases that while examining the witnesses on record, equal weightage shall be given to the defence witnesses as that of the prosecution witnesses. in the case of munshi prasad & ors. v. state of bihar69, this court held as under : 134. the courts below had ignored these basic legal principles while admitting the statement of witnesses while weighing the case against the accused persons. while the decision of the special court ( pota ) found mention of dw - 1, dw - 2, dw - 4, dw - 5 and dw - 6, the evidence of dw - 3 which indicated that some of the accused persons might have actually been detained in police custody much before the official date of arrest, had been completely overlooked. crl. a. nos. 2295 - 2296 of 2010 - 277 - however, fir - icr no. 3090 of 2003 ( ex. 733 ) in the present case shows that dw - 3 was arrested along with some other women under section 188 ipc for protesting against detention of some persons from their area. this, read with the notification g. p. k. / v. s. / 774 / 2003 by the police commissioner ahmedabad city holding that from date 16. 08. 2003 00 / 00 hrs. to 31. 08. 2003 at 24. 00 hrs., not more than four persons shall gather for holding or calling any meeting or shall take out any procession, indicates a story under the layers of truth which the police has managed to suppress and the courts below overlooked. therefore, according to us, this is a fit case for interference by this court under article 136 of the constitution, as we are of the firm view that the concurrent findings of fact of the special court crl. a. nos. 2295 - 2296 of 2010 - 278 - ( pota ) and the high court are not only erroneous in fact but also suffers from error in law. answer to point no

. 10135. on the basis of the issues we have already answered above based on the facts and evidence on record and on the basis of the legal principles laid down by this court, we are convinced that accused persons are innocent with respect to the charges leveled against them. we are of the view that the judgment and order of the special court ( pota ) in pota case no. 16 of 2003 dated 01. 07. 2006 and the impugned judgment and order dated 01. 06. 2010 of the high court of gujarat at ahmedabad in criminal confirmation case no. 2 of 2006 along with criminal appeal nos. 1675 of 2006 and 1328 of 2006 are liable to be set aside. crl. a. nos. 2295 - 2296 of 2010 - 279 - consequently, the sentences of death awarded to a - 2, a - 4 and a - 6, life imprisonment awarded to a - 3, 10 years of rigorous imprisonment awarded to a - 5 are set aside. since we are acquitting all the accused in appeal before us for the reasons mentioned in this judgment and also, since a - 1 was convicted and sentenced on the basis of the same evidence which we have already rejected, we also acquit a - 1 who is not in appeal before us, of the conviction and sentence of 5 years rigorous imprisonment awarded to him by the courts below, exercising the power of this court under article 142 of the constitution and hold him not guilty of the charges framed against him. we are aware that he has already served his sentence. however, we intend to absolve him of the stigma he is carrying of that of a convict, wrongly held guilty of offences of terror so that he is able to return to his family and society, free from any suspicion. 136. before parting with the judgment, we intend to express our anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the nation. instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing. 137. we allow the appeals accordingly by setting aside the judgment and order of special court ( pota ) in pota case no. 16 of 2003 dated 01. 07. 2006 and the impugned common judgment and orders dated 01. 06. 2010 of the high court of gujarat at ahmedabad in criminal confirmation case no. 2 of

2006 along with criminal appeal nos. 1675 of 2006 and 1328 of 2006. crl. a. nos. 2295 - 2296 of 2010 - 281 - accordingly, we acquit all the appellants in the present appeals, of all the charges framed against them. the appellants who are in custody shall be set at liberty forthwith, if they are not required in any other criminal case. we also set aside the conviction and sentence awarded to a - 1, though he has already undergone the sentence served on him. all the applications filed in these appeals are accordingly disposed of. j. [ a. k. patnaik ] j. [ v. gopala gowda ] may 16, 2014 new delhi

dipak misra, j. on 26th january, 1996, a day of celebration and conscientious remembrance of the red letter day in the history of india because 26th january is the date in 1950, when our organic, inclusive, humane and compassionate constitution came into existence being given by the people of this country to themselves and the nation has been obliged to jubilate remembering the said important day in our national history, for it chartered the path of many an emancipation and conferred on the people the highly cherished fundamental rights ; about 8. 30 a. m., there was a blast of explosive substances between gate no. 12 and gate no. 13, towards the southern and eastern side of sawai man singh stadium jaipur, where the state level function on republic day was going to be celebrated. soon after the blast, prahlad singh, the station house officer, police station lodged an fir about 9. 30 a. m. which was registered as fir no. 39 / 1996. as per the fir, when the blast took place, the people who had assembled were asked to leave the stadium so that there could be a check. during the check, it was found that due to the blast, a big size crater had come into existence at the scene of explosion. that apart, by the said explosion, the sand hopped upward and fell on the places meant for sitting in the stadium and also on the roof. the glasses of the windows of the pavilion near the explosion had broken into pieces. at the time when the explosion had occurred, only police personnel but no civilians were present in that part of the stadium. the public at large, which was present inside the stadium, was informed to leave the stadium so that the check and security could be carried out. due to the sound caused by the explosion, one ramgopal choudhary, an employee of the public works department, who was passing nearby, had met with an injury on his ear for which he was immediately sent to the hospital. on the basis of the fir, offences under section 120 - b read with sections 307 and 427 ipc, under section 3 of the prevention of damage to public property act, 1984 and under section 3 of the explosive substances act, 1908 ( for short the 1908 act ) and also under section 9b of the explosive act, 1884 ( for brevity the 1884 act ) were registered and the investigation commenced. later on

, the investigation of the case was transferred to c. i. d ( c. b. ). 2. during the investigation, an anonymous letter in urdu language dated 1st june, 1997 was sent to the superintendent of police, wherein some information was given which was alleged to have been gathered by the senders who described themselves as well wishers while they were in custody in the central jail, jaipur, in respect of the bomb - blast that took place on 26th january, 1996 at the sms stadium, jaipur. in that letter, the names of some persons, i. e., raies beg of agra, dr. abdul hamid of firozabad and pappu puncturewala were mentioned. it was also mentioned that the isi of pakistan was behind the bomb - blast. on the basis of the said information, the investigating officer arrested five persons, namely, abdul hamid, raies beg, abdul mateen, pappu @ saleem and chandra prakash on various dates. 3. during the investigation, the investigating agency recovered a live time bomb from sms stadium and explosive items were recovered from roopwas, district bharatpur. in the course of the investigation, accused pappu @ saleem filed an application under section 306 of the code of criminal procedure ( for brevity the code ) before the chief judicial magistrate on 14. 8. 1997 who, by order dated 30. 8. 1997, authorized the additional chief judicial magistrate no. 6 to record the statement of the said accused under section 164 of the code and thereafter, the chief judicial magistrate, by a reasoned order dated 20. 9. 1997, allowed the application. after carrying out the detailed investigation, the police laid the charge - sheet against the arrested accused persons, namely, chandra prakash, abdul mateen, raies beg and abdul hamid. 4. all the accused persons abjured guilt, pleaded false implication and, accordingly, faced trial. 5. the learned trial judge framed different charges against the four accused persons and we think that it would be apt to refer to the charges framed against each of them. as far as chandra prakash is concerned, the charges that were framed against him were under section 9b of the 1884 act and under sections 3, 4, 5 read with section 6 of the 1908 act. as far as abdul mateen is concerned, he was

charged with the offences under section 14 of the foreigners act, 1946, under sections 3, 4 and 5 of the 1908 act, under section 9b of the 1884 act, under section 3 of the prevention of damages to public properties act and under sections 307, 118, 435 and 456 ipc. as far as raies beg and abdul hamid are concerned, they were faced with similar charges, namely, under section 9b of the 1884 act, under sections 3, 4 and 5 read with section 6 of the 1908 act and under sections 307 / 120b, 118 / 120b and 435 / 120b ipc. 6. to bring home the charges against the accused persons, the prosecution examined as many as 78 witnesses and brought on record exhibits p - 1 to p - 296. in defence, no witness was examined on behalf of any of the accused persons. however, documentary evidence was produced by them, i. e., exhibits d - 1 to d - 5. we shall refer to the relevant parts of the testimonies of the vital witnesses and advert to the documents which have been stressed and emphasized upon by the prosecution at a later stage. 7. the accused persons in their statements under section 313 of the code took separate plea and hence, it is obligatory on our part to record their pleas individually. abdul mateen admitted that he is a pakistani and he had remained as a pakistani always ; that he had never come to india before his arrest ; that he did not know any person in india ; that he never visited the places, namely, jaipur, farah, roopwas, agra firozabad or any other city ; and that he had never given any information to the police and no recovery was made by the police at his instance and he had never identified any place. the plea of abdul hamid was that he never gave any information to the police during the investigation of the case and he did not furnish any information about the shop of mohit jain, pw - 30, situated at delhi and he had been falsely implicated. raies beg took the plea that due to communal riots he had been falsely booked in the crime. accused chandra prakash, apart from false implication, denied any relationship with pappu @ saleem, pw - 1, and further stated that no key was recovered from him and he did not open any godown and room with his keys. he also took the stand that he had not taken any room on rent in

krishi upaz mandi or any shop near the power house on rent and disputed the recovery from any shop. the trial court, appreciating the oral and documentary evidence on record, by its judgment and order dated 22. 04. 2000 in sessions case no. 8 / 98, convicted all the accused and sentenced all of them individually in respect of all the specific charges framed against them. the offence for which each of them had faced trial has been already mentioned hereinabove. all the accused had been sentenced separately by the learned trial judge. 8. accused abdul mateen was sentenced to undergo five years rigorous imprisonment and a fine of rs. 10, 000 / -, in default of payment of fine to further undergo one year s simple imprisonment under section 14 of the foreigners act ; ten years rigorous imprisonment and a fine of rs. 20, 000, in default to further undergo two years simple imprisonment under section 4 of the prevention of damages to public property act ; three years rigorous imprisonment and a fine of rs. 3, 000 / -, in default to further undergo six months simple imprisonment under section 456 ipc ; to undergo ten years rigorous imprisonment and a fine of rs. 10, 000 / -, in default to further undergo two years simple imprisonment under section 307 read with section 120b ipc ; seven years rigorous imprisonment and a fine of rs. 7, 000 / -, in default to further undergo one and half years simple imprisonment under section 435 read with section 120b ipc ; five years rigorous imprisonment and a fine of rs. 5, 000 / -, in default to further undergo one year s simple imprisonment under section 118 read with section 120b ipc ; two years rigorous imprisonment and a fine of rs. 2, 000 / -, in default to further undergo three months simple imprisonment under section 9b of the 1884 act ; imprisonment for life and a fine of rs. 20, 000 / - in default to further undergo three years simple imprisonment under section 3 of the 1908 act ; seven years rigorous imprisonment and a fine of rs. 7, 000 / -, in default to further undergo one and half years simple imprisonment under section 4 of the 1908 act ; and five years rigorous imprisonment and a fine of rs. 5, 000 / -, in default to further undergo one year s simple imprisonment under section 5 of the 1908 act. 9. accused chandra prakash was sentenced to undergo two years rigorous imprisonment and a fine of rs. 2, 000 / -,

in default to further undergo three months simple imprisonment under section 9b of the 1884 act ; ten years rigorous imprisonment and a fine of rs. 10, 000 / -, in default to further undergo two years simple imprisonment under section 3 read with section 6 of the 1908 act ; seven years rigorous imprisonment and a fine of rs. 7, 000 / -, in default to further undergo one and half years simple imprisonment under section 4 read with section 6 of the 1908 act ; and five years rigorous imprisonment and a fine of rs. 5, 000 / -, in default to further undergo one year s simple imprisonment under section 5 read with section 6 of the 1908 act. 10. accused abdul hamid and raies beg were sentenced to undergo two years rigorous imprisonment and a fine of rs. 2, 000 / -, in default to further undergo three months simple imprisonment ; ten years rigorous imprisonment and a fine of rs. 10, 000 / -, in default to further undergo two years simple imprisonment under section 307 read with section 120b ipc ; seven years rigorous imprisonment and a fine of rs. 7, 000 / -, in default to further undergo one and half years simple imprisonment under section 435 read with section 120b ipc ; five years rigorous imprisonment and a fine of rs. 5, 000 / -, in default to further undergo one year s simple imprisonment under section 118 read with section 120b ipc ; ten years rigorous imprisonment and a fine of rs. 10, 000 / -, in default to further undergo two years simple imprisonment under section 3 read with section 6 of the 1908 act ; seven years rigorous imprisonment and a fine of rs. 7, 000 / -, in default to further undergo one and half years simple imprisonment under section 4 read with section 6 of the 1908 act ; and five years rigorous imprisonment and a fine of rs. 5, 000 / -, in default to further undergo one year s simple imprisonment under section 5 read with section 6 of the 1908 act. 11. at this juncture, we think it appropriate to state the findings recorded by the learned trial judge against each of the accused. as far as abdul mateen is concerned, the trial court held that it was clear from the evidence of gps wirk, pw - 69, assistant commander, bsf, that mhd. ashlam baba was the financial head of a terrorist organization by the name of harkat - ul - ansar, and during the course of investigation, the

accused abdul mateen was arrested from srinagar and no passport or visa was found in his possession. the offence punishable under section 14 of the foreigners act which had been levelled against him was established beyond reasonable doubt. the live time bomb was duly recovered and accused abdul mateen had exclusive knowledge and it was he who planted the time bomb at that place and it was proven from the testimonies of the witnesses. from the evidence of the approver, pappu, and the information under section 27 of the evidence act, it could be concluded that prior to 26. 1. 1996, two time bombs were implanted by accused abdul mateen. it was clear from the testimonies of jai narayan, pw - 6, and gopal saini, pw - 7, that abdul mateen had led to the recovery of the bomb and the charge of crime punishable under section 9b of the explosive act levelled against the accused abdul mateen has been proved beyond reasonable doubt. 12. in respect of raies beg and abdul hamid, the trial court held that abdul hamid had been visiting accused chandra prakash at roopbas quite frequently and both the accused persons had helped accused abdul mateen in the commission of the offence. they used to meet at the madarsa of village farah and the conspiracy was hatched. the learned trial judge came to hold that the involvement of the said accused persons in the commission of the crime was reflectible from the evidence of number of witnesses and the prosecution had established their role beyond any shadow of doubt. 13. pertaining to chandra prakash, the court held that explosive substances including gelatin and dynamite in huge quantity were recovered from his possession on 1. 8. 1997. scanning the evidence, it recorded that the dynamite was used in both the bombs. he further opined that pappu @ saleem, pw - 1, was an associate and colleague of accused abdul mateen and prior to the incident, the explosive substance was brought from chandra prakash in village farah, where pappu @ saleem used to live with him. that apart, chandra prakash was identified by pappu and the key of the godown was with the accused and he opened the lock of the said godown from which 28 kattas of ammonium nitrate were recovered. it was also clear from the evidence of chetandass rawatani, p

##w - 34, that the goods which were recovered from the accused were utilized for the preparation of the explosive substance. 14. on the basis of the aforesaid findings and conclusions, the learned trial judge convicted the accused persons and sentenced them as has been stated hereinbefore. 15. being grieved by the aforesaid conviction and sentence, the accused persons preferred separate appeals before the high court being d. b. criminal ( jail ) appeal no. 318 of 2000, d. b. criminal appeal nos. 189 of 2000, 258 of 2000 and 369 of 2000. the state filed application for grant of leave ( d. b. criminal leave to appeal no. 26 of 2008 ) with an application for condonation of delay of seven years and nine months which was taken up along with the appeals preferred by the accused persons and the said appeal was dismissed on the ground of delay. however, it may be stated here that the high court also addressed to the merits of the case of the state which pertained to enhancement of sentence and did not find any substance in the same. as regards the appeals preferred by the accused persons, the appellate court did not perceive any merit and, resultantly, dismissed the same by way of judgment and order dated 3. 2. 2009. hence, the assail is to the judgment of conviction and order of sentence by the applications of special leave petitions. 16. leave granted in all the special leave petitions. 17. as all the appeals relate to defensibility of common judgment passed by the high court in respect of all the accused - appellants, they are disposed of by a singular judgment. 18. mr. sushil k. jain, learned senior counsel for the appellants, criticizing the judgment of the trial court and that of the high court, has raised the following contentions : - a ) the learned trial judge as well as the high court committed grave error by coming to hold that sanction given under section 7 of the 1908 act cannot be found fault with, though the district magistrate, jaipur was not examined as a witness to prove the order of sanction. b ) the recovery made from the appellant, chandra prakash, at the instance of information given by pappu would not be admissible in evidence because at the time of giving information, pappu was an accused and had not been treated as an approver which was done later on by virtue of the order of the court. the testimony of the approver is not creditworthy since he has deposed that he was

not aware about the contents of the box that he was asked to carry by the other accused persons. c ) the alleged recovery of ammonium nitrate from the custody of accused, chandra prakash, either at the instance of pappu @ saleem, pw - 1, or by the accused - appellant cannot be accepted because pappu @ saleem, pw - 1 is an accomplice and in absence of any corroboration, his evidence has to be thrown overboard and further the case of prosecution that at the instance of the accused articles were discovered is to be rejected inasmuch as section 27 of the evidence act, 1872 could not have been made applicable to the facts of the present case, for chandra prakash had not been arrested by the time the alleged discovery took place. d ) assuming the ammonium nitrate was recovered from the custody of chandra prakash, the same would not make out any offence punishable under any of the provisions of the 1908 act or the 1884 act, for the simple reason that it does not come under the statutory definition. even if the language of sections 2 and 3 of the 1908 act as well as section 9b of the 1884 act are stretched, it would not bring in its sweep the simple act of sale by chandra prakash without any intention or knowledge about its use. e ) no independent charges were framed against the accused - appellant under sections 3, 4 and 5 of the 1908 act but along with section 6 of the 1908 act and, therefore, conviction under the said provision is absolutely fallacious. 19. mr. balaji srinivasan, learned counsel appearing for the appellants, abdul hamid and raies beg, submitted as under : - ( a ) the prosecution has failed to prove the nexus of the accused - b ) there is no recovery of explosive substance or any incriminating materials from the appellant s house and in the absence of any recovery, the appellant cannot be roped in the crime. c ) the allegation of the prosecution with regard to the relation of the appellant with abdul mateen does not have any substance and, in any case, there is no proof to establish the same. d ) the bomb blast at sms stadium, jaipur took place on 26. 01. 1996 and the accused was arrested on 8. 06. 1997 and identification parade was conducted on 25. 06. 1997 about one and half years after the incident. this aspect vitiates the identification parade and creates

a dent in the case of the prosecution for which the appellants should be given the benefit of doubt. 20. mr. atul kumar, learned counsel appearing for the appellant abdul mateen, in addition to the contentions raised by mr. jain and mr. balaji, has contended that no consent has been taken under section 7 of the 1908 act from the central government and hence, the entire trial is vitiated. 21. dr. manish singhvi, learned additional advocate general appearing for the state of rajasthan, supporting the judgment of the high court, has submitted as follows : - i ) the sanction given by the district magistrate, on a perusal, would show application of mind and, by no stretch of imagination, it can be regarded as invalid in law. ii ) the recovery at the instance of an accused under section 27 of the indian evidence act is admissible in evidence and the information given by pappu, pw - 1, which led to the recovery of huge quantity of explosives would per se be admissible in evidence and this evidence is not to be treated as inadmissible merely because the accused at the relevant point of time had subsequently become the approver. iii ) the recovery of explosives by the accused, chandra prakash, by opening the keys of the godown would be a relevant fact and admissible under section 8 of the evidence act, irrespective of the fact that the conduct falls within the purview of section 27 of the evidence act. iv ) the recovery of the explosive substance has been made by the police vide memo ex. p - 42 during the search and seizure operations. chetan das rawatani, pw - 34, explosive expert, has stated that the articles recovered in ex. p - 42 were explosive articles and the same has also been proved by the fsl report, ex. p - 234. v ) the evidence of the approver pappu, pw - 1, is admissible as substantive evidence u / s 133 of the evidence act. in the evidence of the approver, it has been mentioned that the accused, chandra prakash, was engaged in the supply of materials for solicitation of money for the commission of offence under the 1908 act. possession of huge quantity of ammonium nitrate without any plausible explanation by the accused, chandra prakash, corroborates the evidence of the approver. 22. first, we shall deal with the issue of sanction. section 7 of the 1908 act reads as follows :

- 7. restriction on trial of offences. no court shall proceed to the trial of any person for an offence against this act except with the consent of the district magistrate. 23. the learned counsel for abdul mateen has submitted that no consent has been granted by the central government. in this context, we may refer to the decision in state of m. p. v. bhupendra singh [ 1 ]. in the said case, the consent for the prosecution was granted by the additional district magistrate by notification dated 24. 4. 1995 issued by the state government. the high court has quashed the proceeding as there was no sanction. this court concurred with the said view on the ground that it was within the domain of the central government to delegate the authority and, in fact, the central government vide notification dated 2. 12. 1978 has entrusted to the district magistrates in the state of madhya pradesh its consent under section 7 of the 1908 act. thus, there could be delegation by the central government to the district magistrates. 24. it is relevant to note here that the consent was given by the concerned district magistrate as ext. p - 277 / 278. his authority was not questioned. what was urged before the court was that there had been no application of mind inasmuch as the relevant materials were not placed before him while according sanction. when such a point was not raised, the consequences have to be different. in this regard, reference to a two - judge bench decision in erram santosh reddy and others v. state of andhra pradesh [ 2 ] would be appropriate. in the said case, the court has observed as follows : - 7. the last submission is that no sanction was obtained from the central government as laid down under section 7 of the explosive substances act for prosecuting the appellants for the offences under the explosive substances act. from the judgment we do not find that any such objection was taken. in any event from the record we find that the collector granted permission and this must be pursuant to the delegation of powers as contemplated under section 18 ( 2 ) of the tada. 25. from the aforesaid, we come to the conclusion that the district magistrate had the authority to give consent for the prosecution. 26. the next facet of the challenge pertaining to sanction is that the sanctioning authority had not perused the relevant materials. the learned trial judge, upon scrutiny of ext. p - 277 / 278, has expressed the opinion that the approval

had been granted after perusal of the materials on record. the high court has observed that the consent / sanction order is a self - speaking and detailed one. it has also been held that all the facts have been taken into consideration by the district magistrate and the entire police diary was made available to him at the time of grant of sanction / approval. with regard to the authority of consent as postulated in the 1908 act, reference to certain authorities would be fruitful. in state of tamil nadu v. sivarasan alias raghu alias sivarasa and others [ 3 ], the court, while dealing with the effect of section 7 of the 1908 act, has observed as follows : - section 7 does not require a sanction but only consent for prosecuting a person for an offence under the explosive substances act. the object of using the word consent instead of sanction in section 7 is to have a purely subjective appreciation of the matter before giving the necessary consent. 27. thereafter, the court proceeded to state as follows : - 28. in view of the aforesaid, the approval / consent granted by the district magistrate in the obtaining factual matrix cannot be treated as vitiated. 29. the third aspect of challenge to the sanction is that the district magistrate has not been examined as a witness to prove the order of sanction. on a perusal of the document, we find that the same has been proven by the competent person and the document has been marked as ext. p - 277 / 278. we are of the considered opinion that the examination of the district magistrate to prove his consent is really not necessary. 30. in view of the aforesaid analysis, the submission relating to the invalidity of the consent, as stipulated in section 7 of the 1908 act, does not commend us and, accordingly, the same stands rejected. 31. the next issue, to which we should advert to, pertains to the delay in holding the test identification parade. the submission of mr. balaji srinivasan, learned counsel appearing for accused abdul hamid and raies beg, is that there has been enormous delay in conducting the test identification parade in respect of accused abdul hamid and raies beg. there is no dispute that both of them were arrested on 8. 6. 1997 and the test identification parade was held on 25. 6. 1997. thus, it is evident that they were arrested long after the occurrence but the test identification parade was held within a period of three weeks from the date

of arrest. as the analysis of the trial court shows, they could not have been arrested as the materials could not be collected against them and things got changed at a later stage. in this regard, we may refer with profit to the decision in ramanand ramnath v. state of m. p. [ 4 ], wherein identification parade was held within a period of one month from the date of arrest. this court observed that there was no unusual delay in holding the test identification parade. 32. that apart, the witnesses, namely prem prakash gupta, pw - 78, and mohit jain, pw - 30, have identified them in the court. in state of maharashtra v. suresh [ 5 ], it has been held as follows : - we remind ourselves that identification parades are not primarily meant for the court. they are meant for investigation purposes. the object of conducting a test identification parade is twofold. first is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. 33. the said legal position has been reiterated in anil kumar v. state of u. p. [ 6 ] recently, in munna kumar upadhyay alias munna upadhyaya v. state of andhra pradesh through public prosecutor, hyderabad, andhra pradesh [ 7 ], a two - judge bench has observed thus : - 66. there was some delay in holding the identification parade. but the delay per se cannot be fatal to the validity of holding an identification parade, in all cases, without exception. the purpose of the identification parade is to provide corroborative evidence and is more confirmatory in its nature. no other infirmity has been pointed out by the learned counsel appearing for the appellant, in the holding of the identification parade. the identification parade was held in accordance with law and the witnesses had identified the accused from amongst a number of persons who had joined the identification parade. 34. in view of the aforesaid, the submission that there has been delay in holding the test identification parade does not really affect the case of the prosecution. it is also noteworthy that the witnesses had identified the accused persons in court and nothing has been elicited in the

cross - examination even to create a doubt. thus, we repel the submission advanced by the learned counsel for accused abdul hamid and raies beg. 35. the next facet to be addressed is whether the evidentiary value of the testimony of approver pappu, pw - 1, is required to be considered. learned counsel for the state has drawn our attention to section 133 and illustration ( b ) to section 114 of the indian evidence act, 1872. they read as under : - 133. accomplice. - an accomplice shall be a competent witness against an accused person ; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. " illustration ( b ) to section 114 ( b ) the court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. 36. the aforesaid two provisions came to be considered in bhiva doulu patil v. state of maharashtra [ 8 ] wherein the court held as follows : - the combined effect of sections 133 and illustration ( b ) to section 114, may be stated as follows : according to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter, which is a rule of practice it is almost always unsafe to convict upon his testimony alone. therefore, though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. 37. in mohd. husain umar kochra etc. v. k. s. dalipsinghji and another etc. [ 9 ], the court observed thus : -... the combined effect of sections 133 and 114, illustration ( b ) is that though a conviction based upon accomplice evidence is legal, the court will not accept such evidence unless it is corroborated in material particulars. the corroboration must connect the accused with the crime. it may be direct or circumstantial. it is not necessary that the corroboration should confirm all the circumstances of the crime. it is sufficient if the corroboration is in material particulars. the corroboration must be from an independent source. one accomplice cannot corroborate another. 38. having stated the legal position with regard to the statutory provisions, presently we shall proceed to consider the requisite tests to be applied to accept the credibility of the testimony

of the approver. at this juncture, we may sit in a time machine and quote a passage from sarwan singh s / o rattan singh v. state of punjab [ 10 ] wherein it has been held as follows : -... an accomplice is undoubtedly a competent witness under the indian evidence act. there can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. it would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. if such a view is adopted it would render the evidence of the accomplice wholly superfluous. on the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. but it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. if the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered. in other words, the appreciation of an approver's evidence has to satisfy a double test. his evidence must show that he is a reliable witness and that is a test which is common to all witnesses. if this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. this test is special to the cases of weak or tainted evidence like that of the approver. 8... every person who is a competent witness is not a reliable witness and the test of reliability has to be satisfied by an approver all the more before the question of corroboration of his evidence is considered by criminal courts. 39. in ravinder singh v. state of haryana [ 11 ], this court has observed that : - an approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court

. this test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. 40. similar principles have been reiterated in mrinal das and ors. v. state of tripura [ 12 ]. 41. in a. devendran v. state of t. n. [ 13 ], the court has registered the view that there cannot be any dispute with regard to the proposition that ordinarily an approver s statement has to be corroborated in material particulars. certain clinching features of involvement disclosed directly to an accused by an approver must be tested qua each accused from independent credible evidence and on being satisfied, the evidence of an approver can be accepted. the court further observed that the extent of corroboration that is required before the acceptance of the evidence of the approver would depend upon the facts and circumstances of the case, however, the corroboration required must be in material particulars connecting each of the accused with the offence, or in other words, the evidence of the approver implicating several accused persons in the commission of the offence must not only be corroborated generally but also qua each accused but that does not mean that there should be independent corroboration of every particular circumstance from an independent source. the court proceeded to state that all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and the corroboration could be both by direct or circumstantial evidence. be it noted, the said principle was stated on the basis of pronouncements in ramanlal mohanlal pandya v. state of bombay [ 14 ], tribhuvan nath v. state of maharashtra [ 15 ], sarwan singh v. state of punjab ( supra ), ram narain v. state of rajasthan [ 16 ] and balwant kaur v. union territory of chandigarh [ 17 ]. 42. in chandan and another v. state of rajasthan [ 18 ], the court held that so far as the question about the conviction based on the testimony of the accomplice is concerned, the law is settled and it is established

as a rule of prudence that the conviction could only be based on the testimony of the accomplice if it is thought reliable as a whole and if it is corroborated by independent evidence either direct or circumstantial, connecting the accused with the crime. 43. in haroon haji abdulla v. state of maharashtra [ 19 ], the view in this regard was expressed in the following terms : - an accomplice is a competent witness and his evidence could be accepted and a conviction based on it if there is nothing significant to reject it as false. but the rule of prudence, ingrained in the consideration of accomplice evidence, requires independent corroborative evidence first of the offence and next connecting the accused, against whom the accomplice evidence is used, with the crime. 44. in major e. g. barsay v. state of bombay [ 20 ], it has been observed that this court had never intended to lay down that the evidence of an approver and the corroborating pieces of evidence should be treated in two different compartments, that is to say, the court shall first have to consider the evidence of the approver dehors the corroborated pieces of evidence and reject it if it comes to the conclusion that his evidence is unreliable ; but if it comes to the conclusion that it is reliable, then it will have to consider whether that evidence is corroborated by any other evidence. 45. in renuka bai alias rinku alias ratan and another v. state of maharashtra [ 21 ], the court held that the evidence of the approver is always to be viewed with suspicion especially when it is seriously suspected that he is suppressing some material facts. 46. in ranjeet singh and another v. state of rajasthan [ 22 ], the court observed that while looking for corroboration, one must first look at the broad spectrum of the approver s version and then find out whether there is other evidence to lend assurance to that version. the nature and extent of the corroboration may depend upon the facts of each case and the corroboration need not be of any direct evidence that the accused committed the crime. the corroboration even by circumstantial evidence may be sufficient. 47. keeping in view the aforesaid principles which relate to the acceptance of the evidence of an approver, we have bestowed our anxious consideration and carefully perused the judgment of the trial court and that of the high court. learned counsel for the parties have

taken us through the evidence of pappu @ saleem, pw - 1. he has clearly deposed that abdul mateen who is also known as iqbal, used to visit the madarsa at village farah. abdul hameed and abdul mateen were seen at village farah many times without any reason before the incicent. as far as abdul hameed and raies beg are concerned, he has deposed that both the accused used to go to the house of chandra prakash in roopwas to collect the masala in a cover box. both of them used to meet abdul mateen in the madarsa at village farah on a number of occasions. he used to contact abdul mateen from firozabad many times and the watches fixed with bombs as timers were given at farah by abdul hameed to make the bomb. it has also come out in his evidence that pappu along with accused raies beg @ raies ahmad and other accused persons used to visit the madarsa at village farah. his evidence also shows that raies beg and pappu used to bring explosive from roopwas to village farah and he has mentioned that raies beg had brought five boxes of masala for rs. 10, 000 / - from the house of chandra prakash and those boxes were unloaded at the madarsa in farah. pappu was asked to carry the boxes along with raies beg and abdul hameed. he has clearly deposed about the conspiracy that was told to him by accused abdul mateen. as far as chandra prakash is concerned, it had come in the evidence that though pappu used to visit his house at roopwas along with other accused persons, yet he used to stay outside the house of chandra prakash and the others used to go to bring masala from the house of chandra prakash. the alleged masala used to be brought in boxes from time to time to the associates of raies beg and abdul hameed who used to come to madarsa at farah. 48. from the analysis of the aforesaid evidence, it is clear that pappu as approver has implicated himself in the crime. he has not made any effort to give any statement which is exculpatory. he has spoken quite graphically about

the involvement of all the accused persons. mr. jain, learned senior counsel appearing for the appellant, would contend that he has used the word masala but not ammonium nitrate, but pappu has clarified that though he was not aware what was contained in the boxes, yet he was told by the other accused persons later on that it contained certain explosive substances. the said aspect has been corroborated from other ocular evidence as well as the seizure. 49. presently, we shall advert to the various facets of corroboration in evidence against the accused persons. as far as chandra prakash is concerned, on the basis of the approver chandra prakash was arrested on 1. 8. 1997 vide ext. p - 37. on the basis of the information of the accused, chandra prakash, the investigating officer searched his house and godown and recovered 28 boxes of ammonium nitrate. it has come out in the evidence that chandra prakash opened the lock of the godown the key of which was in his possession. bhup singh, pw - 32, eye witness to the seizure of articles from the godown of chandra prakash, has categorically stated that the accused chandra prakash led to the recovery of red and blue coloured bundles from the godown of the building. the office of pw - 32 was also in the said building. from the godown, fuse wires and five kilograms of grey coloured material was also recovered. the investigating officer, m. m. atray, pw - 71, has also proven the factum of recovery. shivnath kuriya, pw - 22, who had accompanied the investigating team, has deposed that the explosive which was used in the live bomb had ammonium nitrate / gelaltine. chetan das rawatani, pw - 34, who is an expert witness in respect of explosives, approved his report ext. p - 49 and has deposed that the ammonium nitrate that was seized from the godown of chandra prakash was in such a condition that it could be used to prepare a bomb. 50. mr. jain, as has been stated earlier, has seriously criticized about the recovery from chandra prakash on the ground that when he led to the discovery of the articles seized, he was not arrested. in this context, we refer with profit to the decision in mohd.

arif alias ashfaq v. state ( nct of delhi ) [ 23 ] wherein the court opined thus : - the essence of the proof of a discovery under section 27 of the evidence act is only that it should be credibly proved that the discovery made was a relevant and material discovery which proceeded in pursuance of the information supplied by the accused in the custody. how the prosecution proved it, is to be judged by the court but if the court finds the fact of such information having been given by the accused in custody is credible and acceptable even in the absence of the recorded statement and in pursuance of that information some material discovery has been effected then the aspect of discovery will not suffer from any vice and can be acted upon. 51. in this context, we may refer to the authority in vikram singh and others v. state of punjab [ 24 ], wherein while interpreting section 27 of the evidence act, the court opined that a bare reading of the provision would reveal that a person must be accused of any offence and that he must be in the custody of a police officer and it is not essential that such an accused must be under formal arrest. 52. in this regard, a passage from the constitution bench decision in state of uttar pradesh v. deoman upadhyaya [ 25 ] is reproduced below : - the expression, " accused of any offence " in s. 27, as in s. 25, is also descriptive of the person concerned, i. e., against a person who is accused of an offence, s. 27 renders provable certain statements made by him while he was in the custody of a police officer. section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered. even though s. 27 is in the form of a proviso to s. 26, the two sections do not necessarily deal with the evidence of the same character. the ban imposed by s. 26 is against the proof of confessional statements. section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to

discovery of facts. by s. 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered. 53. in anter singh v. state of rajasthan [ 26 ], after referring to the decisions in madan singh v. state of rajasthan [ 27 ], mohd. aslam v. state of maharashtra [ 28 ], pulukuri kottaya v. emperor [ 29 ], prabhoo v. state of u. p. [ 30 ] and mohd. inayatullah v. state of maharashtra [ 31 ], this court summed up the following principles : - 16. the various requirements of the section can be summed up as follows : 1 ) the fact of which evidence is sought to be given must be relevant to the issue. it must be borne in mind that the provision has nothing to do with the question of relevancy. the relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. 2 ) the fact must have been discovered. 3 ) the discovery must have been in consequence of some information received from the accused and not by the accused s own act. 4 ) the person giving the information must be accused of any offence. 5 ) he must be in the custody of a police officer. 6 ) the discovery of a fact in consequence of information received from an accused in custody must be deposed to. ( 7 ) thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. the rest is inadmissible. 54. in this context, it would be fruitful to refer to the ruling in state of maharashtra v. damu [ 32 ] wherein it has been observed that : - 55. in aftab ahmad anasari v. state of uttaranchal [ 33 ], after referring to earlier decisions, a two - judge bench, appreciating the material brought on record, came to hold that when the accused was ready to show the place where he had concealed the clothes of the deceased, the same was clearly admissible under section 27 of the evidence act because the same related distinctly to the discovery of the clothes of the deceased from that very place. 56. in bhagwan dass v.

state ( nct of delhi ) [ 34 ], relying on the decisions in aftab ahmad anasari ( supra ) and manu sharma v. state ( nct of delhi ) [ 35 ], the court opined that when the accused had given a statement that related to the discovery of an electric wire by which the crime was committed, the said disclosure statement was admissible as evidence. 57. as the material brought on record would show, the accused was in the custody of the investigating agency and the fact whether he was formally arrested or not will not vitiate the factum of leading to discovery. however, it may be stated that the accused was also arrested on that day. we have dealt with the issue that formal arrest is not necessary as mr. jain has seriously contended that the arrest was done after the recovery. as we have clarified the position in law, the same would not make any difference. 58. as regards recovery from accused abdul mateen is concerned, it is borne out from the record that after his arrest on 28. 6. 1997, he gave information at 6. 00 a. m. as contained in ext. p - 255, about another bomb and on the basis of the said information the investigating officer, pw - 71, visited the spot along with the accused and at his instance a live bomb was recovered which was underneath the earth. in the said information the accused had stated that the two bombs were inside the sms stadium and he could verify the places by going inside the stadium. in the evidence of jai narain, pw - 6, gopal singh, pw - 7 and shivnath, pw - 22, it has come on record that the bombs were recovered at the instance of accused abdul mateen on 28. 6. 1998. this fact has been corroborated by vinod sharma, pw - 16 and gordhan, pw - 10 who also accompanied the investigating team. shivnath, pw - 22, had clearly stated that the bomb recovered was high explosive time bomb and the battery was inside the timer and the same was switched on and he further confirmed that electric detonator was used in the bomb. vinod kumar, pw - 16, also stated that the electric detonator was found in the bomb and the same was neutralized. suresh kumar saini, pw - 67, in his deposition, gave description of loss caused due to the explosion of

the time bomb. he had further deposed that lid of stainless steel of casio watch had been recovered from the scene of crime. 59. on appreciating the aforesaid material, it is clear as crystal that the said accused has stated about the fact of planting of bomb at a particular site in the stadium and led to the said place from which the bomb was recovered. the submission of mr. jain is that such material cannot be put against the accused being inadmissible in evidence. in this context, we may refer to a two - judge bench decision in prakash chand v. state ( delhi administration ) [ 36 ] wherein the court, after referring to the decision in himachal pradesh administration v. om prakash [ 37 ], opined thus : - there is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under section 8 of the evidence act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in the course of an investigation which is hit by section 162 of the criminal procedure code. what is excluded by section 162, criminal procedure code is the statement made to a police officer in the course of investigation and not the evidence, relating to the conduct of an accused person ( not amounting to a statement ) when confronted or questioned by a police officer during the course of an investigation. for example, the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under section 8 of the evidence act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of section 27 of the evidence act. 60. the said principle has been reiterated in a. n. venkatesh and another v. state of karnataka [ 38 ]. 61. tested on the touchstone of the aforesaid enunciation of law, the submission of mr. jain leaves us unimpressed and we are inclined to hold that the said fact is a relevant fact which is admissible in evidence. 62. the next aspect that is to be adverted to is that ammonium nitrate not being an explosive substance, mere possession cannot bring the accused chandra prakash within the ambit of any offence.

in this regard, we may refer to section 4 ( d ) of the 1884 act. it reads as follows : - ( d ) explosive means gunpowder, nitroglycerine, nitroglycol, guncotton, di - nitro - toluene, tri - nitro - toluene, picric acid, di - nitro - phenol, tri - nitro - resorcinol ( styphnic acid ), cyclo - trimethylene - tri - nitramine, penta - erythritol - tetranitrate, tetryl, nitro - guanidine, lead azide, lead styphynate, fulminate of mercury or any other metal, diazo - di - nitro - phenol, coloured fires or any other substance whether a single chemical compound or a mixture of substances, whether solid or liquid or gaseous used or manufactured with a view to produce a practical effect by explosion or pyrotechnic effect ; and includes fog - signals, fireworks, fuses, rockets, percussion - caps, detonators, cartridges, ammunition of all descriptions and every adaptation or preparation of an explosive as defined in this clause ; 63. section 2 of the 1908 act, which deals with definitions, reads as follows : - 2. definitions. - in this act - - ( a ) the expression " explosive substance " shall be deemed to include any materials for making any explosive substance ; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance ; also any part of any such apparatus, machine or implement ; ( b ) the expression " special category explosive substance " 64. keeping in view the broad definitions of both the acts, we are required to see what has been seized from the accused chandra prakash. what is evincible from the seizure report, ext. p - 42, apart from ammonium nitrate, fuse wire and empty boxes were also seized. that apart, 17 packs containing blue coloured fuse wire kept in plastic ( polythene ) bags and four boxes containing blue coloured fuse wire, sun brand safety fuse numbered as 40208, 40158, 39937, 40203 respectively, one carton of explosives detonating fuse measuring 1500 meters in length and 38 kg in weight, containing four wooden logs of red colour, 375 meter wire in each gattha and black coloured cap fitted on the tip of

the wire, three cartons of explosive belgelative 90 ( gulla dynamite ) net weight of each being 25 kg. with division i class ii safety distance category zz bharat explosive ltd. 9 km lalitpur ( u. p. ) date of manufacturing 4. 6. 97 batch no. 2 written on each box, four packets of o. d. detonator containing 1600 detonators, a substance of light yellow colour kept inside a carton of paer in a plastic bag weighing nearly 5 kg and 16 empty cartons, one of gulla and 15 of fuse wire, were seized. 65. section 2 of the 1908 act has a deeming provision which states that explosive substance would include any materials for making any explosive substance. similarly, section 4 ( d ) of the 1884 act has a broader spectrum which includes coloured fires or any other substances, whether single chemical compound or a mixture of substances. that apart, as we find, apart from ammonium nitrate other articles had been seized. the combination of the same, as per the evidence of the expert witness, was sufficient to prepare a bomb for the purpose of explosion. in addition to the same, huge quantity of ammonium nitrate was seized and it was seized along with other items. the cumulative effect is that the possession of these articles in such a large quantity by the accused gives credence to the prosecution version that the possession was conscious and it was intended to be used for the purpose of the blast. 66. the next aspect which needs to be adverted to is non - framing of specific charge. on a perusal of the record, we find that the learned trial judge has framed the charges specifically by putting the charges to the accused. the purpose of framing of charges is that the accused should be informed with certainty and accuracy of the charge brought against him. there should not be vagueness. the accused must know the scope and particulars in detail. in this context, we may refer to decision in santosh kumari v. state of jammu and kashmir and others [ 39 ], wherein it has been held as follows : - 17. like all procedural laws, the code of criminal procedure is devised to subserve the ends of justice and not to frustrate them by mere technicalities. it regards some of its provisions as vital but others not, and a breach of the latter is a curable irregularity unless the accused is prejudiced thereby. it places errors in the charge, or even a total absence of a charge

in the curable class. that is why we have provisions like sections 215 and 464 in the code of criminal procedure, 1973. 18. the object of the charge is to give the accused notice of the matter he is charged with and does not touch jurisdiction. if, therefore, the necessary information is conveyed to him in other ways and there is no prejudice, the framing of the charge is not invalidated. the essential part of this part of law is not any technical formula of words but the reality, whether the matter was explained to the accused and whether he understood what he was being tried for. sections 34, 114 and 149 ipc provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention ; and as explained by a five - judge constitution bench of this court in willie ( william ) slaney v. state of m. p. [ 40 ] scr at p. 1189, the charge is a rolled - up one involving the direct liability and the constructive liability without specifying who are directly liable and who are sought to be made constructively liable. 67. in k. prema s. rao v. yadla srinivasa rao [ 41 ], the court opined that though the charge specifically under section 306 ipc was not framed, yet all the ingredients constituting the offence were mentioned in the statement of charges. in that context, a three - judge bench of this court ruled that mere omission or defect in framing of charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. the said principle has been reiterated in dalbir singh v. state of u. p. [ 42 ], state of u. p. v. paras nath singh [ 43 ] and annareddy sambasiva reddy v. state of a. p. [ 44 ]. 68. in the case at hand, as has been stated earlier, the charges have been framed and we do not find any vagueness. that apart, neither any prejudice has been caused nor has there been any failure of justice. thus, the submission of mr. jain in this regard leaves us unimpressed. 69. the next facet which deserves to be addressed pertains to the criminal conspiracy. the submission of the learned counsel for the appellants is that the learned trial judge has inappositely drawn certain inferences to show that

there was a criminal conspiracy and the high court has, without delving deep into the matter, concurred with the same. as per the evidence brought on record, it is clear as crystal that accused abdul mateen, abdul hamid and raies beg used to meet quite frequently at the madarsa at village farah. it is also evident from the deposition of kanchan singh, pw - 11, shri chand, pw - 12, murari lal sharma, pw - 13, and ashok kumar, pw - 17, that the accused abdul mateen, raies beg and abdul hamid used to meet at the madarsa at village farah. that apart, pappu had also deposed implicating himself that when there used to be discussion at madarsa in the village farah about the suitable place for planting the bomb, the timer of the bomb was supplied by dr. abdul hamid. the chain of events and the participation of the accused persons which had the genesis in the discussion and the meetings, the purchase of ammonium nitrate and other items, carrying of the boxes to the madarsa and all other factors cumulatively show that there was conspiracy. 70. while dealing with the facet of criminal conspiracy, it has to be kept in mind that in case of a conspiracy, there cannot be any direct evidence. express agreement between the parties cannot be proved. circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. such a conspiracy is never hatched in open and, therefore, evaluation of proved circumstances play a vital role in establishing the criminal conspiracy. in this context, we may refer with profit to a passage from yogesh alias sachin jagdish joshi v. state of maharashtra [ 45 ] : - 20. the basic ingredients of the offence of criminal conspiracy are : ( i ) an agreement between two or more persons ; ( ii ) the agreement must relate to doing or causing to be done either ( a ) an illegal act ; or ( b ) an act which is not illegal in itself but is done by illegal means. it is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. yet, as observed by this court in shivnarayan

laxminarayan joshi v. state of maharashtra [ 46 ] a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. therefore, the meeting of minds of the conspirators can be inferred from the circumstances proved by the prosecution, if such inference is possible. 71. the same principles have been stated in pratapbhai hamirbhai solanki v. state of gujarat and another [ 47 ]. 72. in yakub abdul razak menon v. the state of maharashtra, through cbi, bombay [ 48 ], analyzing various pronouncements, this court opined thus : - 68. for an offence under section 120b indian penal code, the prosecution need not necessarily prove that the conspirators expressly agreed to do or cause to be done the illegal act, the agreement may be proved by necessary implication. it is not necessary that each member of the conspiracy must know all the details of the conspiracy. the offence can be proved largely from the inferences drawn from the acts or illegal omission committed by the conspirators in pursuance of a common design. being a continuing offence, if any acts or omissions which constitute an offence are done in india or outside its territory, the conspirators continuing to be the parties to the conspiracy and since part of the acts were done in india, they would obviate the need to obtain the sanction of the central government. all of them need not be present in india nor continue to remain in india. the entire agreement must be viewed as a whole and it has to be ascertained as to what in fact the conspirators intended to do or the object they wanted to achieve. ( vide : r. k. dalmia v. delhi administration [ 49 ], lennart schussler and anr. v. director of enforcement and anr. [ 50 ], shivanarayan laxminarayan joshi v. state of maharashtra and mohammad usman mohammad hussain maniyar and anr. v. state of maharashtra [ 51 ] ). 73. testing the present factual matrix on the anvil of the aforesaid enunciation of law, we are of the considered view that the opinion expressed by the learned trial judge as well as by the high court that there has been conspiracy between the parties to commit the blast on a particular day cannot be found fault with. 74. presently

, we shall engage ourselves to deal with the conviction of accused abdul mateen for the offence under section 14 of the foreigners act, 1946. the said provision reads as under : - 14. penalty for contravention of provisions of the act, etc. - whoever a ) remains in any area in india for a period exceeding the period for which the visa was issued to him ; b ) does any act in violation of the conditions of the valid visa issued to him from his entry and stay in india or any part thereunder ; c ) contravenes the provisions of this act or of any order made thereunder or any direction given in pursuance of this act or such order for which no specific punishment is provided under this act, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine ; and if he has entered into a bond in pursuance of clause ( f ) of sub - section ( 2 ) of section 3, his bond shall be forfeited, and any person bound thereby shall pay the penalty thereof or show cause to the satisfaction of the convicting court why such penalty should not be paid by him. explanation. for the purposes of this section, the expression visa shall have the same meaning as assigned to it under the passport ( entry into india ) rules, 1950 made under the passport ( entry into india ) act, 1920 ( 34 of 1920 ). 75. the learned trial judge, analyzing the material on record, has come to hold that the said abdul mateen is a resident of pakistan and he had no valid document to be in india. in his statement under section 313 of the code, he had not disputed that he was not having passport or visa and he is of pakistan nationality. thus, the offence under the said act has been held to be proved. the high court has concurred with the said view. in our considered opinion, the offence under the said act has been proved beyond reasonable doubt. 76. in view of the aforesaid analysis, we conclude and hold that the grounds assailing the judgment of conviction and the order of sentence have no legal substantiality and, accordingly, they are rejected. 77. the factual scenario of the instant case compels us to state that these kinds of activities by anyone breeds lawlessness, fear and affects the fundamental unity of our great country. a nation with a desire to prosper is required to maintain high degree of law and order situation apart from respecting imperatives of internationalism. certain individuals harbouring unacceptable

notions and inexcusable philosophy and, on certain occasions, because of enormous avarice, try to jeopardize the cohesive and collegial fabric of the state. this leads to national decay and gives rise to incomprehensible anarchy. it reflects non - reverence for humanity. be it categorically stated, every citizen of this country is required to remember that national patriotism is founded on the philosophy of public good. love for one s country and humanity at large are eternally cherished values. the infamous acts of the appellants are really condemnable not only because of the dent they intended to create in the social peace and sovereignty of the nation, but also from the humane point of view as they are founded on greed, envy, baseless anger, pride, prejudice and perverse feelings towards mankind. 78. we have, in agony and anguish, have expressed thus because when a devastating activity like the present one occurs on the republic day of our country bharat, it injures the nationality, disturbs the equilibrium of each individual citizen, creates a concavity in the equanimity of the peace of the state, generates a stir in the sanctity and divinity of law and order situation which is paramount in any civilized state, attempts to endanger the economic growth of a country and, in the ultimate eventuate, destroys the conceptual normalcy of any habitat. law cannot remain silent to this because it is the duty of law to resist such attacks on peace. it is manifest that the accused - appellants had conspired to send a savage stir among the citizenry of this country on the republic day. the great country like ours cannot succumb to this kind of terrorist activity as it is nationally as well as internationally obnoxious. such tolerance would tantamount to acceptance of defeat. the iron hands of law has to fall and in the obtaining facts and circumstances, as the charges have been proved beyond reasonable doubt, the law has rightly visited the appellants and, accordingly, we concur with the same. 79. consequently, all the appeals, being bereft of merit, stand dismissed. j. [ k. s. radhakrishnan ] j. [ dipak misra ] new delhi ; may 9, 2014. - - - - - - - - - - - - - - - - - - - - - - -

p. sathasivam, cji. 1 ) the present writ petition, under article 32 of the constitution of india, has been filed by the petitioners challenging the validity of certain letters issued by mr. qazi aqlimuddin secretary, vidhan sabha ( respondent no. 4 herein ) on various dates against them with regard to a case registered by the special police establishment ( spe ) of the lokayukt organisation, against the officials of the vidhan sabha secretariat as well as against the concerned officials of the capital project administration - the contractor company alleging irregularity in the construction work carried out in the premises of vidhan sabha. 2 ) it is relevant to mention that petitioner no. 1 herein was the lokayukt of the state of madhya pradesh appointed under the provisions of the madhya pradesh lokayukt evam uplokayukt act, 1981 ( hereinafter referred to as the lokayukt act ). petitioner no. 2 was the legal advisor, a member of the madhya pradesh higher judicial service on deputation with the lokayukt and petitioner nos. 3 to 5 were the officers of madhya pradesh special police establishment. 3 ) the petitioners herein claimed that the said letters violate their fundamental rights under articles 14, 19 and 21 of the constitution of india and are contrary to article 194 ( 3 ) and prayed for the issuance of a writ, order or direction ( s ) quashing the said letters as well as the complaints filed by respondent nos. 5, 6 ( since expired ), 7, 8 and 9 herein. 4 ) brief facts ( a ) an anonymous complaint was received on 21. 06. 2005 in the office of the lokayukt stating that a road connecting the vidhan sabha with vallabh bhawan, involving an expenditure of about rs. 2 crores, was being constructed without inviting tenders and complying with the prescribed procedure. it was also averred in the said complaint that with a view to regularize the above - said works, the officers misused their official position and got the work sanctioned to the capital project administration in violation of the rules which amounts to serious financial irregularity and misuse of office. it was also mentioned in the said complaint that in order to construct the said road, one hundred trees had been cut down without getting the permission from the concerned department. the said complaint

was registered as e. r. no. 127 of 2005. during the inquiry, the deputy secretary, housing and environment department, vide letter dated 18. 08. 2005 stated that the work had been allotted to the lowest tenderer and the trees were cut only after obtaining the requisite permission from the municipal corporation. in view of the said reply, the matter was closed on 22. 08. 2005. ( b ) on 22. 12. 2006, again a complaint was filed by one shri p. n. tiwari, supported with affidavit and various documents, alleging the same irregularities in the said construction work by the officers of the vidhan sabha secretariat in collusion with the capital project administration which got registered as e. r. no. 122 of 2006. a copy of the said complaint was sent to the principal secretary, madhya pradesh government, housing and environment department for comments. in reply, the additional secretary, m. p. government, housing and environment department submitted the comments along with certain documents stating that the building controller division working under the capital project administration was transferred to the administrative control of the vidhan sabha secretariat vide order dated 17. 07. 2000 and consequently the secretariat vidhan sabha was solely responsible for the construction and maintenance work within the vidhan sabha premises. ( c ) on 26. 06. 2007, a request was made to the principal secretary, housing and environment department to submit all the relevant records, tender documents, note sheets, administrative, technical and budgetary sanctions by 10. 10. 2007. by letter dated 17. 07. 2007, the under secretary of the said department informed that since the administrative sanctions were issued by the secretariat vidhan sabha, the materials were not available with them. in view of the said reply, the lokayukt - ( petitioner no. 1 herein ) sent letters dated 31. 07. 2007 addressed to the principal secretary, housing and environment department, administrator, capital project administration and the deputy secretary, vidhan sabha secretariat to appear before him along with all the relevant records on 10. 08. 2007. on 10. 08. 2007, the principal secretary, housing and environment appeared before the lokayukt and informed that since the controller buildings of capital project administration was working under the administrative control of the vidhan sabha secretariat since 2000, all sanctions / approvals and records relating to construction and maintenance work were available in the vidhan sabha secretariat.

in view of the above reply, the lokayukt summoned the secretary and the deputy secretary, vidhan sabha, respondent nos. 10 and 11 respectively on 24. 08. 2007 to give evidence and produce all records / note - sheets of administrative and technical sanctions and budgetary and tender approvals relating to construction works carried out in mla rest house and vidhan sabha premises in the year 2005 - 2006. ( d ) the secretary, vidhan sabha, respondent no. 10 herein, in his deposition dated 24. 08. 2007, admitted giving of administrative approval to the estimated cost which was available with the office of the lokayukta and stated that the relevant note - sheet was in the possession of the hon ble speaker, therefore, he prayed for time to produce the same by 07. 09. 2007. ( e ) vide letter dated 07. 09. 2007, respondent no. 10 conveyed his inability to produce the same. after receiving information from the chief engineer, public works department, capital project, controller buildings, vidhan sabha, capital project administration and chief engineer, public works department vide letters dated 11. 09. 2007, 13. 09. 2007 and 18. 09. 2007 respectively, the legal advisor petitioner no. 2 herein a member of the m. p. higher judicial service thoroughly examined the same and found that it is a fit case to be sent to the spe for taking action in accordance with law. petitioner no. 1 was in agreement with the said opinion. thereafter, crime case no. 33 / 07 was registered against the secretary, vidhan sabha ( respondent no. 10 herein ), shri a. p. singh, deputy secretary, vidhan sabha, the then administrator, superintendent engineer, capital project administration and contractors on 06. 10. 2007. ( f ) after registration of the case, petitioner no. 1 received the impugned letters dated 15. 10. 2007 and 18. 10. 2007 alleging breach of privilege under procedures and conduct of business rules 164 of the madhya pradesh vidhan sabha against him and the officers of the special police establishment. in response to the aforesaid letters, by letter dated 23. 10. 2007, the secretary, lokayukt explained the factual position of petitioner no. 1 herein stating that no case of breach of privilege was made out and also pointed out that neither any complaint had been received against the hon ble speaker nor any inquiry was conducted by

the lokayukt organization against him nor his name was found in the fir. ( g ) on 26. 10. 2007, the secretary, vidhan sabha respondent no. 4 sent six letters stating that the reply dated 23. 10. 2007 is not acceptable and that individual replies should be sent by each of the petitioners. ( h ) being aggrieved by the initiation of action by the hon ble speaker for breach of privilege, the petitioners have preferred this writ petition. 5 ) heard mr. k. k. venugopal, learned senior counsel for the writ petitioners, mr. mishra saurabh, learned counsel for the state - respondent no. 1 and mr. c. d. singh, learned counsel for the secretary, vidhan sabha - respondent no. 4. contentions : 6 ) mr. k. k. venugopal, learned senior counsel for the petitioners raised the following contentions : - ( i ) whether the legislative assembly or its members enjoy any privilege in respect of an inquiry or an investigation into a criminal offence punishable under any law for the time being in force, even when inquiry or investigation was initiated in performance of duty enjoined by law enacted by the very legislative assembly of which the breach of privilege is alleged? ( ii ) whether officials of the legislative assembly also enjoy the same privileges which are available to assembly and its members? ( iii ) whether seeking mere information or calling the officials of vidhan sabha secretariat for providing information during inquiry or investigation amounts to breach of privilege? ( iv ) in view of the letter dated 23. 08. 2007, sent by the principal secretary to respondent nos. 10 and 11, i. e., secretary and deputy secretary, vidhan sabha respectively directing them to appear before the lokayukt ( as per the order of the speaker ), whether respondent nos. 10 and 11 can have any grievance that information was sought from them without sanction and knowledge of the speaker? 7 ) on behalf of the respondents, particularly, respondent no. 4 - secretary, vidhan sabha, mr. c. d. singh, at the foremost submitted that the present petition under article 32 of the constitution of india invoking writ jurisdiction of this court is not maintainable as no fundamental right of the petitioners, as envisaged in part iii of the constitution, has been violated by any of the actions of respondent no. 4. it is their stand that every action pertaining to the assembly and its administration is within

the domain and jurisdiction of the hon ble speaker. the matter of privilege is governed under the rules as contained in chapter xxi of the rules of procedure and conduct of business in the madhya pradesh vidhan sabha. hence, it is stated that the writ petition is liable to be dismissed both on the ground of maintainability as well as on merits. 8 ) before considering rival contentions and the legal position, it is useful to recapitulate the factual details and relevant statutory provisions which are as under : - the legislature of the central province and berar enacted the central provinces and berar special police establishment act, 1947 ( hereinafter referred to as the spe act ). under the said act, a special police force was constituted which has power to investigate the offences notified by the state government under section 3 of the said act, which reads as under : - 13 ) on 22. 12. 2006, a complaint was received from one shri p. n. tiwari supported by affidavit and various documents making allegations that works had been carried out in the new assembly building by the capital project administration in gross violation of the rules, without making budgetary provisions and committing financial irregularities. the said complaint was registered as e. r. 122 of 2006. in the said complaint, it was mentioned that : ( a ) an order had been issued to the administrator, capital project administration by shri a. p. singh, deputy secretary, vidhan sabha giving administrative approval for the estimate of the cost of construction against rules and without making budgetary provision vide order dated 19. 10. 2005 in respect of the following works : ( b ) the officers had abused their powers by getting the works carried out without making budgetary provisions and without getting approval from the finance department in respect of the works specified at item numbers ( iv ), ( vi ), ( vii ) and ( viii ) above. ( c ) following financial irregularities were also pointed out : 14 ) by letter dated 04. 01. 2007, a copy of the complaint was sent to the principal secretary, madhya pradesh government, housing and environment department calling factual comments along with the relevant documents. the comments were submitted by the additional secretary, m. p. government, housing and environment department vide letter dated 15. 05. 2007. the comments, inter alia, stated that the building controller division functioning under the capital project administration was transferred to the administrative control of the vidhan sabha secretariat vide order

dated 17. 07. 2000, consequently, secretariat vidhan sabha is solely responsible for the construction and maintenance works within the vidhan sabha premises. on examination of the comments received along with the supporting documents, following discrepancies were revealed : ( a ) whereas the comments stated that budget provision had been made for an amount of rs. 204. 53 lakh for the purpose of special repairs and maintenance of old and new vidhan sabha and mla rest house under demand no. 21, main head 2217, sub main head 01, minor head 001, development head 1555 ( 3207 ), no amounts were specified under those heads, sub heads and minor heads which were related to new construction works ; ( b ) whereas the comments stated that work had been executed through tenders, but tender documents had not been annexed. ( c ) whereas the comments stated that approval in respect of nine works had been accorded by the secretariat, vidhan sabha on the request of the controller buildings on 21. 03. 2005, however, it is not clear from the letter dated 21. 03. 2005 that administrative approval had been accorded ; and ( d ) whereas the comments stated that amended sanction was granted vide order dated 19. 10. 2005, while the letter dated 19. 10. 2005 does not indicate that it was an amended administrative sanction. 15 ) in view of the above preliminary observations, as noted above, a request was made to the principal secretary, housing and environment department to submit all relevant records, tender documents, note - sheets, administrative, technical and budgetary sanctions by 10. 07. 2007. it was again informed by the under secretary, housing and environment department, vide letter dated 17. 07. 2007 that since the administrative sanctions were issued by the secretariat vidhan sabha, the note - sheets / records relating to such sanctions were not available with the housing and environment department. 16 ) in view of the reply submitted by the under secretary, housing and environment department, the petitioner sent a letter dated 31. 07. 2007 addressed to the principal secretary, housing and environment department, administrator, capital project administration and the deputy secretary, vidhan sabha secretariat to appear before the lokayukt along with all relevant information / records on 10. 08. 2007. 17 ) on the date fixed for appearance, i. e., 10. 08. 2007, the principal secretary, housing and environment appeared before the lokayukt. he informed that since the controller buildings of

capital project administration was working under the administrative control of the vidhan sabha secretariat since the year 2000, all sanctions / approvals and records regarding construction and maintenance works carried out in mla rest house and vidhan sabha premises were available in the vidhan sabha secretariat. on receiving such information, the principal secretary, vidhan sabha secretariat, informed that the records relating to construction works were not with him and that such type of work was looked after by the secretary and the deputy secretary, vidhan sabha. in this situation, secretary and deputy secretary, vidhan sabha secretariat and controller buildings, vidhan sabha, capital project administration were summoned to give evidence and produce all records / note - sheets of administrative and technical sanctions and budgetary and tender approvals relating to construction works carried out in mla rest house and vidhan sabha premises in the year 2005 - 06 on 24. 08. 2007. summons were issued as per the provisions of section 11 ( 1 ) of the lokayukt act, read with sections 61 and 244 of the code of criminal procedure, 1973. summons were received by the deputy secretary, vidhan sabha, shri g. k. rajpal and the controller buildings, shri devendra tiwari. process server of the lokayukt organisation tried to serve summons on shri israni in his office. process server contacted shri harish kumar shrivas, p. a. to shri israni. the p. a. took the summons to shri israni. after coming back, he asked the process server to wait till 4. 00 p. m. later, the p. a. told the process server to take permission of the hon ble speaker to effect service of the summons on the secretary. as such, summons could not be served on shri israni. 18 ) thereafter, d. o. letter dated 14. 08. 2007 was received from the principal secretary, vidhan sabha stating that as per the direction of the hon ble speaker, he was informing the lokayukt organization that : ( a ) the vidhan sabha secretariat was not aware as to the complaint which was being inquired into ; ( b ) all proceedings relating to invitation of tenders, technical sanction, work orders and payment etc. were conducted through the controller buildings, capital project administration and, therefore, all the records relating to these works should be available with them ; ( c ) if, a copy

of the complaint, which is being inquired into, is made available to the vidhan sabha secretariat, it would be possible to make the position more clear. that was the reason why the speaker had not granted permission to the deputy secretary to appear in the office of the lokayukt ; and ( d ) under the provisions of section 2 ( g ) ( ii ) of the lokayukt act, the speaker, the deputy speaker and the leader of opposition are exempted from the jurisdiction of the lokayukt. 19 ) shri israni appeared before the lokayukt on 24. 08. 2007 when his deposition was recorded. in his deposition, he stated that the administrative approval to the estimated cost dated 19. 10. 2005 was given, which was available with the office of the lokayukt. he further stated that note - sheet relating to administrative approval had been prepared which was in possession of the speaker. accordingly, he was required to produce the same by 07. 09. 2007. 20 ) information was called for from the chief engineer, public works department, capital project administration, controller buildings, vidhan sabha, capital project administration and chief engineer, public works department. the same was received vide letters dated 11. 09. 2007, 13. 09. 2007 and 18. 09. 2007 respectively. 21 ) scrutiny note was prepared by the legal advisor, mrs. vibhawari joshi, a member of the madhya pradesh higher judicial service, on deputation to the lokayukt organization, with the assistance of the technical cell, with the approval of the lokayukt. after examination of the information and records received from the various authorities concerned, she prima facie found established that : ( a ) contracts in respect of construction of roads and reception plaza and renovation of toilets were awarded at rates higher than the prevailing rates ; ( b ) works were got executed even when there were no budgetary provisions. demand for budget was made from the finance department but the same had not been accepted ; ( c ) new construction works of the value of rs. 173. 54 lakh were got executed from the maintenance head, which was not permissible, since the maintenance head is meant for maintenance works and not for new works ; ( d ) for new construction works of the value of rs. 173. 54 lakh, administrative approval and technical sanction had been accorded by the authorities, who were not competent to do so ; ( e ) works

of rs. 205. 61 lakh were got executed without obtaining administrative approval and technical sanction ; ( f ) records show that measurements of wbm work were recorded after the bitumen work ( tarring ) had been completed. proper procedure is that first the measurements of wbm work are recorded, thereafter bitumen work is executed and it is only thereafter measurements of bitumen work are recorded. discrepancies in the recording of measurements create doubt ; ( g ) rules provide that in the notice inviting tenders ( nit ), schedule of quantities is annexed so that the tenderers may make proper assessment while quoting rates, but in the present case, in the nit for roads in schedule - i, quantities were not specified. so, it was difficult for the tenderers to make proper assessment while quoting rates. this throws doubt on the legitimacy of the process. ( h ) ( i ) road was to be constructed within the diameter of 300 meters. for this small area, work was split up into five portions and four contractors were engaged. rules provide that for one road, there should be one estimate, one technical sanction and one nit. in the present case, five estimates were prepared, five technical sanctions were granted, five tenders were invited and four contractors were engaged. this throws doubt on the legitimacy of the process ; ( ii ) there are three processes involved in the construction of roads, i. e., wbm, bitumen and thermoplastic. as per the rules and practice, for all the three processes, there should be one tender, but in the present case, the work was split up into three portions inasmuch work of wbm was given to two contractors, work of bitumen to one other and work of thermoplastic to still another ; ( iii ) cement concrete road was constructed for a small part of the same road. for this small part of the road another separate nit was invited and work was awarded to a separate contractor, i. e., the fifth contractor ; ( i ) the secretary and the deputy secretary of vidhan sabha secretariat and administrator, superintending engineer and controller buildings of capital project administration in collusion with the contractors, in order to give undue benefits to them by abusing their official position caused loss of rs. 12, 62, 016 / - to rs. 20, 71, 978 / - to the government. in view of the above, the

legal advisor ( petitioner no. 2 herein ) recorded her opinion that it is a fit case to be sent to the spe for taking action in accordance with law. the lokayukt petitioner no. 1 agreed with the note of the legal advisor and observed that it is a fit case to be dealt with further by the spe. the case was accordingly sent to the spe. 22 ) the spe, thereafter, registered crime case no. 33 / 07 on 06. 10. 2007 against shri bhagwan dev israni, secretary vidhan sabha, shri a. p. singh, deputy secretary vidhan sabha, the then administrator, superintending engineer, capital project administration and contractors. soon after the registration of the criminal case, the petitioners received the impugned notices dated 15. 10. 2007 wherein allegations of breach of privilege were made against the petitioners. the petitioners understood that the said letters had been issued on the basis of some complaints by the members of legislative assembly. the petitioners received further notices for breach of privilege on the basis of the complaint made by shri gajraj singh, mla. 23 ) in response to the aforesaid letters, the secretary of the lokayukt organization, on the direction of the petitioner no. 1 sent a letter dated 23. 10. 2007, to respondent no. 4 - shri qazi aqlimuddin, secretary, vidhan sabha giving in details about the constitutional, legal and factual position stating that no case of privilege was made out. it was also pointed out that neither any complaint had been received against the speaker, respondent no. 1 nor any inquiry was conducted by the lokayukt organization against him nor was he named in the fir. 24 ) respondent no. 4, i. e., secretary, vidhan sabha, thereafter sent six letters dated 26. 10. 2007 to the petitioners. by the said letters, the petitioners were informed that the reply dated 23. 10. 2007 had not been accepted and it was directed that individual replies should be sent by each of the petitioners. being aggrieved by the initiation of action by the speaker for breach of privilege against the petitioners, as noted above, the petitioners herein filed the present writ petition. maintainability of the writ petition under article 32 of the constitution : 25 ) mr. c. d. singh, learned counsel appearing for respondent no. 4, by drawing our attention to the relief prayed for and of the fact that quashing relates to letters on various dates wherein

after pointing out the notice of breach of privilege received from the members of madhya pradesh assembly sought comments / opinion within seven days for consideration of the hon ble speaker, submitted that the proper course would be to submit their response and writ petition under article 32 of the constitution of india is not maintainable. 26 ) mr. venugopal, learned senior counsel for the petitioners submitted that as the impugned proceedings which are mere letters calling for response as they relate to breach of privilege, amount to violation of rights under article 21 of the constitution, hence, the present writ petition is maintainable. in support of his claim, he referred to various decisions of this court. 27 ) there is no dispute that all the impugned proceedings or notices / letters / complaints made by various members of the madhya pradesh assembly claimed that the writ petitioners violated the privilege of the house. ultimately, if their replies are not acceptable, the petitioners have no other remedy except to face the consequence, namely, action under madhya pradesh vidhan sabha procedure and conduct of business rules, 1964. if any decision is taken by the house, the petitioners may not be in a position to challenge the same effectively before the court of law. in the bengal immunity company limited vs. the state of bihar and others, [ 1955 ] 2 scr 603, seven hon ble judges of this court accepted similar writ petition. the said case arose against the judgment of the high court of patna dated 04. 12. 1952 whereby it dismissed the application made by the appellant - company under article 226 of the constitution praying for an appropriate writ or order quashing the proceedings issued by the opposite parties for the purpose of levying and realising a tax which is not lawfully leviable on the petitioners and for other ancillary reliefs. as in the case on hand, it has been argued before the seven - judge bench that the application was premature, for there has, so far, been no investigation or finding on facts and no assessment under section 13 of the act. rejecting the said contention, this court held thus : it will, therefore, have to be examined and decided on merits.. 28 ) in east india commercial co., ltd., calcutta and another vs. the collector of customs, calcutta, [ 1963 ] 3 scr 338, which is a three - judge bench decision, this court negatived similar objection as pointed out in our case by the state. in that case,

the appellants - east india commercial co. ltd., calcutta had brought into india from u. s. a. a large quantity of electrical instruments under a licence. the respondent, collector of customs, calcutta, started proceedings for confiscation of these goods under section 167 ( 8 ) of the sea customs act, 1878. the appellants mainly contended that the proceedings are entirely without jurisdiction as the collector can confiscate only when there is an import in contravention of an order prohibiting or restricting it and in that case the collector was proceeding to confiscate on the ground that a condition of the licence under which the goods had been imported had been disobeyed. the appellants, therefore, prayed for a writ of prohibition directing the collector to stop the proceedings. the objection of the other side was that the appellant had approached the high court at the notice stage and the same cannot be considered under article 226 of the constitution. rejecting the said contention, this court held : assuming that a notice could be laconic, in the present case it was a speaking one clearly specifying the alleged act of contravention. if on a reading of the said notice, it is manifest that on the assumption that the facts alleged or allegations made therein were true, none of the conditions laid down in the specified sections was contravened, the respondent would have no jurisdiction to initiate proceedings pursuant to that notice. to state it differently, if on a true construction of the provisions of the said two sections the respondent has no jurisdiction to initiate proceedings or make an inquiry under the said sections in respect of certain acts alleged to have been done by the appellants, the respondent can certainly be prohibited from proceeding with the same. we, therefore, reject this preliminary contention. 29 ) in kiran bedi & ors. vs. committee of inquiry & anr. [ 1989 ] 1 scr 20, which is also a three judge bench decision, the following conclusion in the penultimate paragraph is relevant : points ( v ), ( vi ) and ( vii ) are decided accordingly. it is clear from the above decisions that if it is established that the proposed actions are not permissible involving infringement of articles 14 and 21 of the constitution, this court is well within its power to pass appropriate order in exercise of its jurisdiction under articles 32 and 142 of the constitution. further, if the petitioners are compelled to face the privilege proceedings before the vidhan sabha, it would cause prejudice to them. further, if the petitioners are compelled to face the privilege motion in spite of the fact that no proceeding was initiated against

hon ble speaker or members of the house but only relating to the officers in respect of contractual matters, if urgent intervention is not sought for by exercising extraordinary jurisdiction, undoubtedly, it would cause prejudice to the petitioners. 30 ) accordingly, we reject the preliminary objection raised by the counsel for respondent no. 4 and hold that writ petition under article 32 is maintainable. 31 ) with the above factual background and the relevant statutory provisions, let us examine the rival submissions. 32 ) now, we will consider the contentions raised by mr. venugopal. as mentioned earlier, petitioner no. 1 is the lokayukt appointed under the provisions of the lokayukta act exercising powers and functions as provided under the act. in the course of the performance of the said functions, the lokayukt organization received a complaint regarding certain irregularities in the award of contracts. petitioner nos. 1 and 2, therefore, conducted preliminary inquiry in the matter and on finding that a prima facie case under the prevention of corruption act was made out, the matter was referred to the spe established under the provisions of the m. p. special police establishment act, 1947 to be dealt with further, and thereafter, a case was registered by the said establishment under the provisions of the prevention of corruption act, 1988. 33 ) article 194 ( 3 ) of the constitution provides for privileges of the legislative assembly and its members which reads as under : the privileges have not been defined but the above article provides that until the same are so defined ( i. e. by the legislature by law ), they shall be those which the house or its members and committees enjoyed immediately before the coming into force of section 26 of the constitution forty - fourth amendment act, 1978. 35 ) as per chapter xi of the practice and procedure of parliament ( fifth edition ), by m. n. kaul and s. l. shakdher in interpreting parliamentary privileges at page 211 observed : the fundamental principle is that all citizens, including members of parliament, have to be treated equally in the eye of the law. unless so specified in the constitution or in any law, a member of parliament cannot claim any privileges higher than those enjoyed by any ordinary citizen in the matter of the application of law. 36 ) it is clear that in the matter of the application of laws, particularly, the provisions of the lokayukt act and the prevention of corruption act, 1988, insofar as the jurisdiction of the lokayukt or the madhya pradesh special

establishment is concerned, all public servants except the speaker and the deputy speaker of the madhya pradesh vidhan sabha for the purposes of the lokayukt act fall in the same category and cannot claim any privilege more than an ordinary citizen to whom the provisions of the said acts apply. in other words, the privileges are available only insofar as they are necessary in order that the house may freely perform its functions but do not extend to the activities undertaken outside the house on which the legislative provisions would apply without any differentiations. in view of the above, we reject the contra argument made by mr. c. d. singh. 37 ) as rightly submitted by mr. k. k. venugopal, in india, there is rule of law and not of men and, thus, there is primacy of the laws enacted by the legislature which do not discriminate between persons to whom such laws would apply. the laws would apply to all such persons unless the law itself makes an exception on a valid classification. no individual can claim privilege against the application of laws and for liabilities fastened on commission of a prohibited act. 38 ) in respect of the scope of the privileges enjoyed by the members, the then speaker mavalankar, while addressing the conference of the presiding officers at rajkot, on 03. 01. 1955, observed : 42 ) according to erskine may, the privilege of freedom from arrest has never been allowed to interfere with the administration of criminal justice or emergency legislation. thus, in any case, there cannot be any privilege against conduct of investigation for a criminal offence. there is a provision that in case a member is arrested or detained, the house ought to be informed about the same. 43 ) with regard to statutory detention, it has been stated, thus : the detention of members in ireland in 1918 and 1922 under the defence of the realm regulations and the civil authorities ( special powers ) act, the speaker having been informed by respectively the chief secretary of the lord lieutenant and the secretary to the northern ireland cabinet, was communicated by him to the house. 44 ) the committee for privileges of the lords has considered the effect of the powers of detention under the mental health act, 1983 on the privileges of freedom from arrest referred to in standing order no. 79 that no lord of parliament is to be imprisoned or restrained without sentence or order of the house unless upon a criminal charge or refusing to give security for the peace. the committee accepted the advice of lord dip

##lock and other law lords that the provisions of the statute would prevail against any existing privilege of parliament or of peerage. 45 ) in raja ram pal vs. hon ble speaker, lok sabha and others, ( 2007 ) 3 scc 184, this court observed : 43 ). the privilege of freedom from arrest has never been allowed to interfere with the administration of criminal justice or emergency legislation. 87. in u. p. assembly case ( special reference no. 1 of 1964 ) it was settled by this court that a broad claim that all the powers enjoyed by the house of commons at the commencement of the constitution of india vest in an indian legislature cannot be accepted in its entirety because there are some powers which cannot obviously be so claimed. in this context, the following observations appearing at scr p. 448 of the judgment should suffice : ( air p. 764, para 45 ) take the privilege of freedom of access which is exercised by the house of commons as a body and through its speaker to have at all times the right to petition, counsel, or remonstrate with their sovereign through their chosen representative and have a favourable construction placed on his words was justly regarded by the commons as fundamental privilege [ sir erskine may s parliamentary practice, ( 16th edn. ), p. 86 ]. it is hardly necessary to point out that the house cannot claim this privilege. similarly, the privilege to pass acts of attainder and impeachments cannot be claimed by the house. the house of commons also claims the privilege in regard to its own constitution. this privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the commons in the course of a parliament ; secondly, by the trial of controverted elections ; and thirdly, by determining the qualifications of its members in cases of doubt ( may s parliamentary practice, p. 175 ). this privilege again, admittedly, cannot be claimed by the house. therefore, it would not be correct to say that all powers and privileges which were possessed by the house of commons at the relevant time can be claimed by the house. 195. the debate on the subject took the learned counsel to the interpretation and exposition of law of parliament as is found in the maxim lex et consuetudo parliamenti as the very existence of a parliamentary privilege is a substantive issue of parliamentary law and not a question of mere procedure and practice. 46 ) in a.

kunjan nadar vs. the state, air 1955 travancore - cochin 154, the high court while dealing with the scope of privileges under article 194 ( 3 ) of the constitution held as under : - xxxx xxxx xxxx ( 8 ) so long as the detention is legal and in this case there is no dispute about its legality the danger of the petitioner losing his seat or the certainty of losing his daily allowance cannot possibly form the foundation for relief against the normal or possible consequences of such detention. 47 ) in dasaratha deb case ( 1952 ), the committee of privileges - parliament secretariat publication, july 1952, inter alia, held that the arrest of a member of parliament in the course of administration of criminal justice did not constitute a breach of privilege of the house. 48 ) on 24. 12. 1969, a question of privilege was raised in the lok sabha regarding arrests of some members while they were stated to be on their way to attend the house. the chair ruled that since the members were arrested under the provisions of the indian penal code and had pleaded guilty, no question of privilege was involved. 49 ) in order to constitute a breach of privilege, however, a libel upon a member of parliament must concern his character or conduct in his capacity as a member of the house and must be based on matters arising in the actual transaction of the business of the house. reflections upon members otherwise than in their capacity as members do not, therefore, involve any breach of privilege or contempt of the house. similarly, speeches or writings containing vague charges against members of criticizing their parliamentary conduct in a strong language, particularly, in the heat of a public controversy, without, however, imputing any mala fides were not treated by the house as a contempt or breach of privilege. 50 ) similarly, the privilege against assault or molestation is available to a member only when he is obstructed or in any way molested while discharging his duties as a member of the parliament. in cases when members were assaulted while they were not performing any parliamentary duty it was held that no breach of privilege or contempt of the house had been committed. 51 ) successive speakers have, however, held that an assault on or misbehaviour with a member unconnected with his parliamentary work or mere discourtesy by the police officers are not matters of privilege and such complaints should be referred by members to the ministers directly. 52 ) 45th report of the committee of privileges of the rajya sabha

dated 30th november, 2000 stated as under : 7. the committee notes that privileges are available to member of parliament so that they can perform their parliamentary duties without let or hindrance. shri muthu mani had gone to the residence of governor for presentation of a memorandum in connection with party activities. before shri muthu mani reached there, two delegations of his party had been allowed to meet the governor. it appears that due to security related administrative reasons the entry of another delegation of which shri muthu mani was a member, was denied by the police officers. since shri muthu mani was present in connection with the programme of his political party, apparently along with other party workers, it cannot be said that he was in any way performing a parliamentary duty. as such preventing his entry by lawful means cannot be deemed to constitute a breach of his parliamentary privilege. 53 ) now, with regard to the contention of mr. venugopal, viz., about the privileges available to the assembly and its members, in case of arrest of employees of the legislature secretariat within the precincts of the house, the speaker of the kerala legislative assembly, disallowing the question of privilege, ruled that the prohibition against making arrest, without obtaining the permission of the speaker, from the precincts of the house is applicable only to the members of the assembly. he observed that it is not possible, nor is it desirable to extend this privilege to persons other than the members, since it would have the effect of putting unnecessary restrictions and impediments in the due process of law. 54 ) the officers working under the office of the speaker are also public servants within the meaning of section 2 ( g ) of the lokayukt act and within the meaning of section 2 ( c ) of the prevention of corruption act, 1988 and, therefore, the lokayukt and his officers are entitled and duty bound to make inquiry and investigation into the allegations made in any complaint filed before them. 55 ) the law applies equally and there is no privilege which prohibits action of registration of a case by an authority that has been empowered by the legislature to investigate the cases relating to corruption and bring the offenders to book. simply because the officers happen to belong to the office of the hon ble speaker of the legislative assembly, the provisions of the lokayukt act do not cease to apply to them. the law does not make any differentiation and applies to all with equal vigour. as such, the initiation of action does not and cannot amount to a

breach of privilege of the legislative assembly, which has itself conferred powers in the form of a statute to eradicate the menace of corruption. it is, thus, clear that, no privilege is available to the legislative assembly to give immunity to them against the operation of laws. 56 ) in the present matter, the petitioners have not made any inquiry even against the members of the legislative assembly or the speaker or about their conduct and, therefore, the complaints made against the petitioners by some of the members of the legislative assembly were completely uncalled for, illegal and unconstitutional. the speaker has no jurisdiction to entertain any such complaint, which is not even maintainable. 57 ) thus, it is amply clear that the assembly does not enjoy any privilege of a nature that may have the effect of restraining any inquiry or investigation against the secretary or the deputy secretary of the legislative assembly. 58 ) thus, from the above, it is clear that neither did the house of commons enjoy any privilege, at the time of the commencement of the constitution, of a nature that may have the effect of restraining any inquiry or investigation against the secretary or the deputy secretary of the legislative assembly or for that matter against the member of the legislative assembly or a minister in the executive government nor does the parliament or the legislative assembly of the state or its members. the laws apply equally and there is no privilege which prohibits action of registration of a case by an authority which has been empowered by the legislature to investigate the cases. simply because the officers belong to the office of the hon ble speaker of the legislative assembly, the provisions of the act do not cease to apply to them. the law does not make any differentiation and applies to all with equal vigour. as such, the initiation of action does not and cannot amount to a breach of privilege of the legislative assembly, which has itself conferred powers in the form of a statute to eradicate the menace of corruption. 59 ) the petitioners cannot, while acting under the said statute, be said to have lowered the dignity of the very assembly which has conferred the power upon the petitioners. the authority to act has been conferred upon the petitioners under the act by the legislative assembly itself and, therefore, the action taken by the petitioners under the said act cannot constitute a breach of privilege of that legislative assembly. 60 ) by carrying out investigation on a complaint received, the petitioners merely performed their statutory duty and did not in any way affect the privileges which were being enjoyed by the assembly and its members. the action of the petitioners

did not interfere in the working of the house and as such there are no grounds for issuing a notice for the breach of privilege of the legislative assembly. 61 ) also, in terms of the provisions of section 11 ( 2 ) of the lokayukt act, any proceeding before the lokayukt shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the indian penal code and as per section 11 ( 3 ), the lokayukt is deemed to be a court within the meaning of contempt of courts act, 1971. the petitioners have merely made inquiry within the scope of the provisions of the act and have not done anything against the speaker personally. the officers working under the office of the speaker are also public servants within the meaning of section 2 ( g ) of the lokayukt act and, therefore, the lokayukt and his officers were entitled and duty bound to carry out investigation and inquiry into the allegations made in the complaint filed before them and merely because the petitioners, after scrutinizing the relevant records, found the allegations prima facie proved, justifying detailed investigation by the special police establishment under the prevention of corruption act, and the performance of duty by the petitioners in no way affects any of the privileges even remotely enjoyed by the assembly or its members. 62 ) in the present matter, the petitioners have not made any inquiry against any member of the legislative assembly or the speaker or about their conduct and, therefore, the complaints made against the petitioners by some of the members of legislative assembly were completely uncalled for, illegal and unconstitutional. 63 ) further, the allegations made in the complaint show that while dealing with the first complaint ( e. r. 127 / 05 ), the lokayukt found that there was no material to proceed further and closed that matter since the allegations alleged were not established. while inquiring into the second complaint since the lokayukt found that the allegations made in the complaint were prima facie proved, spe was directed to proceed further in accordance with law. 64 ) on behalf of the petitioners, it is pointed out that the facts and circumstances in the present matter show that complaints have been filed by the members not in their interest but for the benefit of the persons involved who all are public servants. it is also pointed out that the action of breach of privilege has been instituted against the petitioners since the officers, against whom the investigation has been launched, belong to the vidhan sabha secretariat. 65 ) we are of the view that

the action being investigated by the petitioners has nothing to do with the proceedings of the house and as such the said action cannot constitute any breach of privilege of the house or its members. 66 ) it is made clear that privileges are available only insofar as they are necessary in order that house may freely perform its functions. for the application of laws, particularly, the provisions of the lokayukt act, and the prevention of corruption act, 1988, the jurisdiction of the lokayukt or the madhya pradesh special police establishment is for all public servants ( except the speaker and the deputy speaker of the madhya pradesh vidhan sabha for the purposes of the lokayukt act ) and no privilege is available to the officials and, in any case, they cannot claim any privilege more than an ordinary citizen to whom the provisions of the said acts apply. privileges do not extend to the activities undertaken outside the house on which the legislative provisions would apply without any differentiation. 67 ) in the present case, the action taken by the petitioners is within the powers conferred under the above statutes and, therefore, the action taken by the petitioners is legal. further, initiation of action for which the petitioners are legally empowered, cannot constitute breach of any privilege. 68 ) under the provisions of section 39 ( 1 ) ( iii ) of the code of criminal procedure, 1973, every person who is aware of the commission of an offence under the prevention of corruption act is duty bound to give an information available with him to the police. in other words, every citizen who has knowledge of the commission of a cognizable offence has a duty to lay information before the police and to cooperate with the investigating officer who is enjoined to collect the evidence. 69 ) in the light of the above discussion and conclusion, the impugned letters / notices are quashed and the writ petition is allowed as prayed for. no order as to costs.. cji. ( p. sathasivam ). j. ( ranjan gogoi ). j. ( shiva kirti singh ) new delhi ; february 25, 2014. - - - - - - - - - - - - - - - - - - - - - - -

surinder singh nijjar, j. 1. leave granted. 2. this appeal is directed against the judgment of the high court of delhi at new delhi rendered in omp no. 46 of 2013 dated 22nd march, 2013. by the aforesaid judgment, the delhi high court has allowed the petition filed by the respondent under section 34 of the arbitration and conciliation act, 1996 ( hereinafter referred to as the arbitration act, 1996 ), challenging the final partial award dated 12th september, 2012. by the aforesaid award, the objection raised by the union of india relating to the 2 arbitrability of the claims made by the petitioner in respect of royalties, cess, service tax and cag audit have been rejected. 3. before we discuss the legal issues, it would be pertinent to make a very brief note of the relevant facts. 4. the parties had entered into two production sharing contracts dated 22nd december, 1994 ( as amended by amendment agreement no. 1 and amendment agreement no. 2 ) ( hereinafter referred to as psc or pscs ) as and when appropriate. these two pscs provide for the exploration and production of petroleum from the mid and south tapti fields ( hereinafter referred to as tapti or tapri field ) and for the exploration and production of petroleum from panna and mukta fields which shall be hereinafter referred to either as panna mukta or panna mukta fields. the two pscs shall be referred to tapti psc and panna mukta psc, respectively. 5. one of the pscs was entered into with reliance industries 3 limited ( ril ), the appellant, a body corporate established under the laws of india. it is a major indian multinational and the largest private sector company in india, with interests in activities including exploration and production of oil and gas, petroleum refining and marketing petrochemicals, textiles, retail and special economic zones. the other psc was entered into with bg exploration and production india limited ( bg ), a body corporate established under the laws of the cayman islands. it is a company forming part of bg group, an international energy group headquartered in the united kingdom with business operations in numerous countries. in 2002, bg group acquired the share capital of enron oil and gas india limited ( eogil, a company former

##ly part of the enron group of companies ). upon its acquisition on 15th february, 2003, the name of eogil was changed to bg exploration and production india limited. 6. ongc is a state - owned oil and gas company in india in which the government of india holds a 74. 14 % equity stake. it produces various petroleum products including crude oil, natural gas and lpg. these three companies are together 4 defined as the contractor ( in the pscs clause 1. 23 ). 7. the two pscs provide a detailed procedure for alternative dispute redressal mechanisms. articles 32 and 33 of the pscs are relevant for this purpose. these articles provide as under : article 32 applicable law and language of the contract 32. 1 subject to the provisions of article 33. 12, this contract shall be governed and interpreted in accordance with the laws of india. 32. 2 nothing in this contract shall entitle the government or the contractor to exercise the rights, privileges and powers conferred upon it by this contract in a manner which will contravene the laws of india. 32. 3 the english language shall be the language of this contract and shall be used in arbitral proceedings. all communication, hearings or visual materials or documents relating to this contract shall be in english. article 33 sole expert, conciliation and arbitration : 33. 1 the parties shall use their best efforts to settle amicably all disputes, differences or claims arising out of or in connection with any of the terms and conditions of this contract or concerning the interpretation or performance thereof. 5 33. 2 except for matters which, by the terms of this contract, the parties have agreed to refer to a sole expert and any other matters which the parties may agree to so refer, any dispute, difference or claim arising between the parties hereunder which cannot be settled amicably may be submitted by any party to arbitration pursuant to article 33. 3. such sole expert shall be an independent and impartial person of international standing with relevant qualifications and experience appointed by agreement between the parties. any sole expert appointed shall be acting as an expert and not as an arbitrator and the decision of the sole expert on matters referred to him shall be final and binding on the parties and not subject to arbitration. if the parties are unable to agree on a sole expert, the disputed subject matter may be referred to arbitration. 33. 3 subject to the provisions herein, any unresolved dispute, difference or claim which cannot be settled amicably within a reasonable time may

, except for those referred to in article 33. 2, be submitted to an arbitral tribunal for final decision as hereinafter provided. 33. 4 the arbitral tribunal shall consist of three arbitrators. the party or parties instituting the arbitration shall appoint one arbitrator and the party or parties responding shall appoint another arbitrator and both parties shall so advise the other parties. the two arbitrators appointed by the parties shall appoint the third arbitrator. 33. 5 any party may, after appointing an arbitrator, request the other party ( ies ) in writing to appoint the second arbitrator. if such other party fails to appoint an arbitrator within forty - five ( 45 ) days of receipt of the written request to do so, such arbitrator may, at the request of the first party, be appointed by the secretary general of the permanent court of arbitration at the hague, within forty - five ( 45 ) days 6 of the date of receipt of such request, from amongst persons who are not nationals of the country of any of the parties to the arbitration proceedings. 33. 6 if the two arbitrators appointed by the parties fail to agree on the appointment of the third arbitrator within thirty ( 30 ) days of the appointment of the second arbitrator and if the parties do not otherwise agree, the secretary general of the permanent court of arbitration at the hague may, at the request of either party and in consultation with both, appoint the third arbitrator who shall not be a national of the country of any party. 33. 7 if any of the arbitrators fails or is unable to act, his successor shall be appointed in the manner set out in this article as if he was the first appointment. 33. 8 the decision of the arbitration tribunal and, in the case of difference among the arbitrators, the decision of the majority, shall be final and binding upon the parties. 33. 9 arbitration proceedings shall be conducted in accordance with the arbitration rules of the united nations commission on international trade law ( uncitral ) of 1985 except that in the event of any conflict between these rules and the provisions of this article 33, the provisions of this article 33 shall govern. 33. 10 the right to arbitrate disputes and claims under this contract shall survive the termination of this contract. 33. 11 prior to submitting a dispute to arbitration, a party may submit the matter for conciliation under the uncitral conciliation rules by mutual agreement of the parties. if the parties fail to agree on a conciliator ( or conciliators ) in accordance with the rules, the matter may be submitted for arbitration. no arbitration proceedings shall be

7 instituted while conciliation proceedings are pending and such proceedings shall be concluded within sixty ( 60 ) days. 33. 12 the venue of conciliation or arbitration proceedings pursuant to this article, unless the parties otherwise agree, shall be london, england and shall be conducted in the english language. the arbitration agreement contained in this article 33 shall be governed by the laws of england. insofar as practicable, the parties shall continue to implement the terms of this contract notwithstanding the initiation of arbitral proceedings and any pending claim or dispute. 33. 13 the fees and expenses of a sole expert or conciliator appointed by the parties shall be borne equally by the parties. assessment of the costs of arbitration including incidental expenses and liability for the payment thereof shall be at the discretion of the arbitrators. 8. in accordance with article 33. 12, the arbitral proceedings were to be held in london as the neutral venue. at the time of entering into the pscs, none of the parties were domiciled in u. k. in fact, subsequently, the venue of the arbitral proceedings was shifted to paris and again re - shifted to london. consequently on 24th february, 2004, the parties to the pscs entered into an agreement amending the pscs, whereby it was stated that : - 4. applicable law and arbitration : except the change of venue / seat of arbitration from london to paris, the articles 32 and 33 of the contract shall be deemed to be set out in full in this agreement mutatis mutandis and so that references therein to the contract shall be references to this agreement. 9. it appears that certain disputes and differences have arisen between the parties, under or in connection with the pscs. consequently, the appellant issued a notice of arbitration dated 16th december, 2010. the disputes, differences and claims are common to both the tapti psc and panna & mukta psc. the appellant claims that all attempts to resolve the disputes with the respondent amicably through correspondences and meetings have failed. the disputes, differences and claims arising out of or in connection with the pscs have been summarized in paragraph 6 of the notice of arbitration. 10. pursuant to the aforesaid notice, the arbitral tribunal was duly constituted on 29th july, 2011. under article 33. 12, the venue of arbitration is in london. the parties confirmed the term of appointment of the arbitral tribunal on 29th july, 2011, signed by the chairman on 15th august, 2011. a

9 substantive hearing was held between 21st may, 2012 to 29th may, 2012 in singapore. thereafter, on the basis of the amendment made in the psc as noticed above, by agreement of the parties, the arbitral tribunal made the final partial consent award on 14th september, 2011. in the aforesaid award, it is recorded as under : 3. final partial award as to seat 3. 1 upon the agreement of the parties, each represented by duly authorized representatives and through counsel, the tribunal hereby finds, orders and awards : a ) that without prejudice to the right of the parties to subsequently agree otherwise in writing, the juridical seat ( or legal place ) of arbitration for the purposes of the arbitration initiated under the claimants notice of arbitration dated 16th december, 2010 shall be london, england. b ) that any hearings in this arbitration may take place in paris, france, singapore or any other location the tribunal considers may be convenient. c ) that, save as set out above, the terms and conditions of the arbitration agreements in article 33 of the pscs shall remain in full force and effect and be applicable in this arbitration. 11. this consent award was duly signed by mr. christopher lau sc ( chairman ), mr. peter leaver qc ( co - arbitrator ) and mr. justice b. p. jeevan reddy 10 ( co - arbitrator ). 12. pursuant to clause 28 of the terms of appointment, the chairman of the tribunal is empowered to make interlocutory orders and consult other members of the tribunal if he considers appropriate or one of the parties requests that a decision be given by the whole tribunal. various directions / orders / clarifications were made by the chairman, with the concurrence of the other members of the tribunal. pursuant to the above directions / orders / clarifications, the claimants / appellants served upon the tribunal its statement of claim and amendment to the statement of claim dated 5th august, 2011 and claimants revised amendment to the statement of claim dated 19th january, 2012. similarly, the respondent served upon the tribunal its statement of defence dated 31st january, 2012 and additional statement on behalf of respondent dated 10th april, 2012 pursuant to procedural order dated 13th march, 2012. the aforesaid procedural order dated 13th march, 2012 as amended by directions dated 15th may, 2012 set out the 11 list of issues ( the may 2012 issues ) to be heard and be determined by the tribunal at the hearing fixed to commence on 21st

may, 2012 and to conclude on 29th may, 2012 ( the may 2012 hearing ). the parties served upon each other witness statement of their witnesses. the documents relied upon by both the parties were also placed on record. 13. the partial final award dated 12th september, 2012 records the claimant s claims for relief as set out in section e of the statement of the scheme. paragraph 30. 3 of the statement of claim reads as follows : - ( 2 ) a declaration that, with effect from the date of any partial or final award to the termination of the pscs, and pursuant to article 15. 6. 1 of the pscs, 12 the government is required to reimburse any excess royalties paid as a result of the exclusion of post - wellhead capital expenditure from wellhead value calculations made pursuant to the gazette notification or pay damages in the same amount for failure to procure an exemption in respect of such excess royalties. ( 3 ) a declaration that the government is liable to reimburse the claimants pursuant to article 15. 6. 1 of the pscs in respect of any additional royalties imposed and paid by the claimants since august 2007 as a result of the exclusion of post - wellhead capital expenditure from wellhead value calculations made pursuant to the gazette notification. ( 4 ) on award in favour of the claimants requiring the government to reimburse the claimants pursuant to article 15. 6. 1 in the sum of us $ 11, 413, 172 in respect of the additional royalties imposed and paid under protest between august 2007 and march 2011 or pay damages in the same amount for failure to procure on exemption in respect of such additional royalties. 14. in the alternative, the appellants claimed the reimbursement pursuant to article 15. 7 and 15. 8 of the relevant pscs ( as 13 the case may be ), the relief prayed for was as under : a ) directing the parties to consult in order to make the necessary revisions and adjustments to the pscs so as to maintain the expected benefit to the claimants as from august 2007 by requiring the respondent to reimburse any excess royalties payable following the issuance of the gazette notification ; b ) consequential declaratory relief ; andc ) an award in damages in the same amount as are claimed in paragraph 30. 3 ( 4 ) of the statement of claim. 15. the third set of relief claimed by the appellant is set out in paragraph 30. 3 of the statement of claim and is as follows : ( 1 ) a

declaration that payment of royalties under the pscs should be made by 15 february in respect of the period 1 july to 31 december and by 15 august in respect of the period 1 january to 30 june. ( 2 ) a declaration that, provided royalties are paid within the timeframes specified in ( 1 ) no interest is payable under the terms of the pscs and any 14 interest otherwise imposed is to be reimbursed by the government. ( 3 ) a declaration that, in the event royalties are paid after the timeframes specified in ( 1 ), any interest in excess of libor plus one percentage point is to be reimbursed by the government. ( 4 ) a declaration that the government is liable to reimburse the claimants pursuant to article 15. 6. 1 of the pscs in respect of any additional royalties or interest imposed which does not accord with the principles outlined at ( 1 ) to ( 3 ) above. ( 5 ) an award in favour of the claimants requiring the government to reimburse the claimants pursuant to article 15. 6. 1 in the sum of rs. 7, 26, 00, 532 in respect of the additional royalties imposed in relation to royalty payments made between 1995 to 2002. 16. as noticed earlier, the aforesaid reliefs were claimed by the appellant under article 15. 6. 1, which is as under : - 15. 6. 1 the constituents of the ( claimants ) shall be liable to pay royalties and cess on their participating interest share of crude oil and natural gas saved and said in accordance with the 15 provisions of this agreement. the royalty on oil saved and sold will be paid at rs. 481 per metric ton and cessan oil saved and said will be paid at rs. 900 per metric ton. royalty on gas saved and said will be paid at ten per cent ( 10 % ) of the value at wellhead. no cess shall be payable in response of gas. royalty and cess shall not exceed the herein above amounts throughout the term of the contract. royalty and cess shall be payable in indian rupees. any such additional payment shall be made by the ( respondent ) 17. further the relief is claimed under article 15. 8 of the tapti psc which is in identical terms of article 15. 7 in the panna mukta psc, which is as under : 15. 8 if any change in or to

any indian law, rule or regulation by any authority results in a material change to the economic benefits accruing to any of the parties to this contract after the effective date, the parties shall consult promptly to make necessary revisions and adjustments to the contract in order to maintain such expected benefits to each of the parties. 18. the four preliminary objections raised by the union of india before the arbitral tribunal are as follows : - 16 ( 1 ) the claimants claims in regard to royalties ( paragraph 14. 1 of the statement of defence ) are not arbitrable ; ( 2 ) the claimants claims in respect of cess ( paragraph 14. 2 of the statement of defence ) are not arbitrable ; ( 3 ) the claimants claims in respect of service tax ( paragraph 14. 3 of the state of defence ) are not arbitrable ; and ( 4 ) the claimants claims in respect of the comptroller and auditor general s ( cag ) audit ( paragraph 20. 10 of the statement of defence ) are not arbitrable. 19. the aforesaid preliminary objections are raised for, for inter alia, the following reasons : - ( a ) the claimants claim entail a challenge to the validity of the oilfields ( regulation and development ) act, 1948 ( the ord act ) and of the powers exercised under it ; ( b ) the claimants cannot contract out of such legislation and any agreement to that effect would be void and unenforceable by virtue of section 23 of the indian contract act, 1872 ; ( c ) the claimants cannot avoid the effect of the legislation by relying on the doctrine of estoppel ; ( d ) any dispute in respect of royalties should be referred to arbitration under rule 33 of petroleum and natural gas rules 1959 ( the png rules ) ; ( e ) there will likely be a defence to enforcement of any award in india under article v ( 2 ) ( b ) of the new york convention as a matter of the public policy of india ; ( f ) since any award has to be enforced in india, this tribunal ought not to enter into or adjudicate questions / issues relating to royalties in view of rule 33 of the png rules and the decisions of the indian supreme court in nataraj studios vs. navarang studios ( 1981 ) 1 scc 523, amrit banaspati co. ltd. vs. state of punjab ( 1992 ) 2 scc 411 and mafatlal industries ltd. vs. union of india ( 1997 ) 5 scc

536 ; and ( g ) were the tribunal to do so in reliance on tamil nadu electricity board v. st - cms electric co pvt. ltd. ( 2007 ) 2 all er ( comm ) 701, it would be contrary to the law as laid down by the english court of appeal in ralli bros v. cia navleria ( 1920 ) 18 2 kb 287. 20. the respondents also contended that the arbitral tribunal cannot, or ought not, to go into or adjudicate the questions raised by the appellants ( claimants ) with respect to royalties ; and leave the parties, if they choose, to seek the necessary relief before the specific forums created under the oilfields ( regulation and development ) act, 1948 and the petroleum and natural gas rules, 1956. 21. the appellants ( the claimants ) on the other hand submitted that the issue of arbitrability is governed by the law of the seat of arbitration. the seat of the arbitration being england, the issue of arbitrability is governed by the english law. it was also submitted that although challenge to the validity of the terms of psc is governed by indian law ( article 32. 1 of the psc ), nevertheless it falls within the jurisdiction of the tribunal just as any other substantive dispute. the appellants relied upon the judgment in tamil nadu electricity board vs. st - cms electric co. pvt. ltd. 1 it was also submitted 1 ( 2007 ) 2 all er ( comm ) 701 19 that the reliefs claimed are founded, only, on contractual rights. further, whether or not any of those contractual rights are vitiated by section 23 of the indian contract act, 1872 is a question of substance and accordingly a dispute as to the underlying merits of the claim. the case of the appellants ( claimants ) assumes that respondent is entitled to rely on the relevant legislation but the claims of the appellants are purely contractual in nature. 22. upon consideration of the entire matter, the arbitral tribunal in the final award concluded as under : summary of conclusions formal final partial award 6. 1 the tribunal, having carefully considered the documentary evidence, the oral evidence and the submissions of the claimants and the respondent, and rejecting all submissions to the contrary, hereby makes, issues and publishes this formal final partial award and for the reasons set out above finds, awards, orders and declares that the claimants claims in respect of royalties, cess, service tax and cag audit are arbitrabe

. 6. 2. in stating its conclusion on the four arbitrability 20 issues identified in section a of the list of issues for the may 2012 hearing, the tribunal wishes to make it clear that it is expressing no opinion on the merits of the parties respective submissions which were made during the may 2012 hearing. subject to further order in the meantime, the merits of those issues will be decided in the march, 2013 hearing. 23. union of india challenged the aforesaid award before the high court of delhi in omp no. 46 of 2013. the respondents invoked the jurisdiction of the high court under section 34 of the arbitration act for various reasons namely, ( i ) the terms of the pscs entered would manifest an unmistakable intention of the parties to be governed by the laws of india and more particularly the arbitration act 1996 ; ( ii ) the contracts were signed and executed in india ; ( iii ) the subject matter of the contracts, namely, the panna mukta and the tapti fields are situated within india ; ( iv ) the obligations under the contracts have been for the past more than 15 years performed within india ; ( v ) the contracts stipulate that they shall be governed and interpreted in accordance with the laws of india ; ( vi ) they also provided that nothing in this 21 contract shall entitle either of the parties to exercise the rights, privileges and powers conferred upon them by the contract in a manner which will contravene the laws of india ( article 32. 2 ) ; and ( vii ) the contracts further stipulate that the companies and the operations under this contract shall be subject to all fiscal legislation of india ( article 15. 1 ). 24. the appellant raised preliminary objection to the maintainability of the arbitration petition primarily on the ground that by choosing english law to govern their agreement to arbitration and expressly agreeing to london seated arbitration, the parties have excluded the application of part i of the arbitration act, 1996. it was submitted that the high court of delhi had no jurisdiction to entertain the objection filed by the union of india under section 34 of the arbitration act, 1996. it was emphasized that courts of england and wales have exclusive jurisdiction to entertain any challenge to the award. it was pointed out that the pscs were amended on two occasions. on 24th february, 2004, psc was sought to be amended to change the seat of arbitration from london to paris. however, on 14th 22 september, 2011, the parties to the arbitration agreed that the seat of the present arbitration proceedings would

be london, england. this agreement is recorded in the final partial consent award rendered by the arbitral tribunal on 29th july, 2011. as noticed earlier, the final partial consent award provided that the juridical seat or legal place of arbitration for the purpose of arbitration initiated under the claimants notice of arbitration dated 16 th december, 2011 shall be london, england. article 33. 9 of the psc provides that the arbitration shall be conducted in accordance with the uncitral rules, 1985. however, subsequently it was recorded in the award that the applicable rules shall be the uncitral arbitration rules, 1976. it was also submitted on behalf of the appellants that the objections raised by the uoi are yet to be determined by the tribunal on merits and shall be considered after considering the evidence at the time of rendering the final award. 25. upon consideration of the entire matter, the high court has held that undoubtedly the governing law of the contract i. e. 23 proper law of the contract is the law of india. therefore, the parties never intended to all together exclude the laws of india, so far as contractual rights are concerned. the laws of england are limited in their applicability in relation to arbitration agreement contained in article 33. this would mean that the english law would be applicable only with regard to the curial law matters i. e. conduct of the arbitral proceedings. for all other matters, proper law of the contract would be applicable. relying on article 15 ( 1 ), it has been held that the fiscal laws of india cannot be derogated from. therefore, the exclusion of indian public policy was not envisaged by the parties at the time when they entered into the contract. the high court further held that to hold that the agreement contained in article 33 would envisage the matters other than procedure of arbitration proceedings would be to re - write the contract. the high court also held that the question of arbitrability of the claim or dispute cannot be examined solely on the touchstone of the applicability of the law relating to arbitration of any country but applying the public policy under the laws of the country to which the parties have subjected the contract to be governed. 24 therefore, according to the high court, the question of arbitrability of the dispute is not a pure question of applicable law of arbitration or lex arbitri but a larger one governing the public policy. the high court then concluded that public policy of india cannot be adjudged under the laws of england. article 32. 1 specifically provides that laws of india will

govern the obligations of the parties in the pscs. the high court also concluded that the effect of the interplay of article 32. 1 and article 32. 2 and 33. 12 leads to the conclusion that law of england shall operate in relation to matters contained in article 33 in so far as they are not inconsistent with the law of india. since the question of arbitrability of the claim is a larger question effecting public policy of state it should be determined by applying laws of india. this would give a meaningful effect to article 32. 2, otherwise it would be rendered otiose. on the basis of the aforesaid plain reading, according to the high court, the conclusion is that the intention of the parties under the agreement was always to remain subject to indian laws and not to contravene them. it is further held that article 33 was confined to conducting the arbitration in accordance with the 25 laws of england and not for all other purposes. relying on the judgment of this court in bhatia international vs. bulk trading s. a. & anr. 2, it has been held that part i of the arbitration act, 1996 would be applicable as there is no clear express or implied intention of the parties to exclude the applicability of the arbitration act, 1996. the high court also relies on the judgment of this court in venture global engineering vs. satyam computer services ltd. 3, in support of the conclusion that the delhi high court has jurisdiction to entertain and adjudicate the petition under section 34 of the arbitration act, 1996. since, according to high court, the dispute raised by the appellant relate to public policy of india, the petition under section 34 of the arbitration act is maintainable. the high court also gives additional reasons for concluding that the petition to challenge final partial award is maintainable. according to the high court, the disputes involved rights in rem. therefore, due regard has to be given to indian laws. an award which is said to be against public policy can be permitted to be challenged in india even though the seat of 2 ( 2002 ) 4 scc 105 3 ( 2008 ) 4 scc 190 26 arbitration is outside india. the high court also took support from the doctrine of public trust with regard to natural resources. since the appellants are seeking refund of amount of cess, royalties, service tax, all matters of public money in india, the jurisdiction of the indian courts cannot be excluded. the high court concludes that there is no reason why the public money be allowed to invested for seeking adjudication

of the claims which may be eventually found to be impermissible to be enforced. finally, the high court declined to consider the law laid down by the constitution bench of this court in bharat aluminium on the basis that the operation of the judgment has been made prospective by the court. the final conclusion has been given in paragraph 59 which is as under : 59. no submission on the part of the respondents remains unaddressed. i have already observed that upon testing the instant case on the principles of law laid down in the case of bhatia international ( supra ) as well as venture global ( supra ), no infer - ence as to express or implied exclusion of the part i of the arbitration and conciliation act, 1996 can be drawn. resultantly, the objection raised by the re - spondents relating to lack of jurisdiction of indian court on the count of express choice of laws provi - sions cannot be sustained as indian laws including provisions of part i of the act are not expressly nor impliedly excluded. the said objection is therefore 27 rejected. 26. it is this judgment of the high court which is subject matter of this appeal. 27. we have heard the learned counsel for the parties. 28. learned senior counsel for both the parties have made very elaborate oral submissions. these submissions have been summed up and supplemented by the written submissions. dr. singhvi appearing for the appellants submitted that once the english law is selected as the proper law of arbitration, the applicability of arbitration act, 1996 would be ruled out. he submits that the high court has wrongly intermingled the issues relating to the challenge to the arbitral proceedings or the arbitration award with the merits of the disputes relating to the underlying contract. according to him, even if the law laid down in bhatia international ( supra ) is applicable, the arbitral tribunal would apply the provisions contained in the indian contract act. but the english courts will have jurisdiction over the control and supervision of the arbitration 28 including, challenge to the arbitral award. in support of his submission, dr. singhvi relies on videocon industries limited vs. union of india & anr. 4 he has also relied on yograj infrastructure limited vs. ssang yong engineering and construction company limited5, m / s dozco india p. ltd. vs. m / s doosan infracore co. ltd. 6, bharat aluminium company vs. kaiser aluminium technical services inc. 729.

dr. singhvi submitted that the reliance placed by the high court on venture global engineering ( supra ) is misplaced. in that case, the court was not concerned with a clause such as article 32. 1 of the psc, which has to be interpreted subject to the provisions contained in article 33. 12. according to dr. singhvi, the ratio of venture global engineering ( supra ) has lost its efficacy as it has been overruled by the constitution bench in bharat aluminium company ( supra ). dr. singhvi then submitted that the concern shown by the high court for indian public policy 4 ( 2011 ) 6 scc 161 5 ( 2011 ) 9 scc 735 6 ( 2009 ) 3 alr 162 7 ( 2012 ) 9 scc 552 29 was wholly misplaced and erroneous. the high court has failed to appreciate that article 32. 1 and 32. 2 deal only with the proper law of the contract and not with the proper law of the arbitration agreement. the high court has erroneously distinguished the ratio of law laid down in videocon industries limited ( supra ) on the ground that although the arbitration clause therein was the same but the question of public policy had not been addressed by the court. relying on state of gujarat & anr. vs. justice r. a. mehta ( retired ) & ors. 8, dr. singhvi submitted that even if the issue of public policy was not particularly raised or addressed, the judgment in videocon industries limited ( supra ) still be a binding precedent. according to him, whilst concluding that the parties did not intend to exclude the applicability of the arbitration act, 1996 to the arbitration agreement, the high court has erroneously held that it was necessary for the parties to exclude not only the provisions of the arbitration act but also specifically plead that public policy is also excluded. according to the learned senior counsel, article 15. 6. 1 has no relevance for the 8 ( 2013 ) 3 scc 1 30 determination of the question as to whether the arbitration act, 1996 will apply to the arbitration, which is being held in london. 30. mr. a. k. ganguly, learned senior counsel appearing for union of india submits that the decision in this case has been correctly rendered by the high court based on the law laid down by this court in bhatia international and venture global engineering ( supra ) as the arbitration agreement is pre balco. he submits that in order to determine whether arbitration act, 1996 is excluded, the contract had

to be seen as a whole. here, the contract is in india, for the work to be done in india over 25 years ; secondly, it deals with natural resources, union of india is a trustee of these resources for the citizens of india. london was designated as the seat of arbitration only to provide certain measure of comfort level to the foreign parties. the contract can not be read in such a way as to exclude the arbitration act, 1996. the high court has correctly concluded that arbitrability had to be decided by taking into consideration indian laws, which would include the indian arbitration act and not under 31 the english arbitration act, 1996. he emphasized that the present proceedings relate to the interpretation of the contract, which is of national importance to develop the oil rich areas in the indian coasts. he points out that under the psc, the contractor has agreed to be always mindful of the rights and interests of india in the conduct of petroleum operations [ article 7. 3 ( a ) ]. mr. ganguly also relied on article 32. 1 and 32. 2 and submitted that contract is to be governed and interpreted in accordance with laws of india. he points out that there is a negative covenant in article 32. 2, wherein government or the contractor are not entitled to exercise the rights, privileges, and powers conferred under the psc in a manner which will contravene laws of india. mr. ganguly further pointed out that the high court has correctly applied the law laid down by this court in bhatia international and venture global engineering ( supra ). he also objected to the additional documents, which are sought to be relied upon by the petitioners in i. a. no. 7 of 2014. he submitted that none of these documents were on the record before the high court and can not be permitted to be relied on for the first time in this court. he, therefore, submitted that i. a. no. 2 32 ought to be dismissed. he submitted that similar request was made before the high court, which was rejected. 31. mr. ganguly emphasized that the issues raised by the union of india are of public law and not purely contractual as sought to be projected by the appellants. he points out that the appellants have sought a number of reliefs with respect to cag audit. it is a challenge to the conclusions recorded by the cag audit and such a challenge would not be arbitrable. it is further submitted by him that the issues raised with regard to royalty is also

not arbitrable as it is not a commercial issue. he has distinguished the judgment of this court in videocon industries limited ( supra ) on the basis that the issue with regard to the public law was not considered by the court in that judgment. 32. as noticed earlier, both the learned senior counsel have also submitted written submissions. primarily, the submissions made in the court have been reiterated and, therefore, reference will be made to the same as and when necessary. 3333. we have considered the submissions made by the learned counsel for the parties. 34. before we analyze the submissions made by the learned senior counsel for both the parties, it would be appropriate to notice the various factual and legal points on which the parties are agreed. the controversy herein would have to be decided on the basis of the law declared by this court in bhatia international ( supra ). the parties are agreed and it is also evident from the final partial consent award dated 14th september, 2011 that the juridical seat ( or legal place ) of arbitration for the purposes of the arbitration initiated under the claimants notice of arbitration dated 16th december, 2010 shall be london, england. the parties are also agreed that hearings of the notice of arbitration may take place at paris, france, singapore or any other location the tribunal considers may be convenient. it is also agreed by the parties that the terms and conditions of the arbitration agreement in article 33 of the pscs shall remain in full force and effect and be applicable to the arbitration proceedings. 3435. the essential dispute between the parties is as to whether part i of the arbitration act, 1996 would be applicable to the arbitration agreement irrespective of the fact that the seat of arbitration is outside india. to find a conclusive answer to the issue as to whether applicability of part i of the arbitration act, 1996 has been excluded, it would be necessary to discover the intention of the parties. beyond this parties are not agreed on any issue. 36. we are also of the opinion that since the ratio of law laid down in balco ( supra ) has been made prospective in operation by the constitution bench itself, we are bound by the decision rendered in bhatia international ( supra ). therefore, at the outset, it would be appropriate to reproduce the relevant ratio of bhatia international in paragraph 32 which is as under : - 32. to conclude, we hold that the provisions of part i would apply to all arbitrations and to all pro - ceedings relating thereto. where such