IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MRS.JUSTICE S.SUJATHA WRIT PETITION No.13810/2018 (T - CUS) BETWEEN: M/s APPLE INDIA PRIVATE LIMITED, A COMPANY REGISTERED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956, HAVING ITS REGISTERED OFFICE AT 19TH FLOOR, CONCORDE TOWER C, UB CITY, NO.24, VITTAL MALLYA ROAD BENGALURU-560001 REP BY ITS MANAGER TRADE COMPLIANCE, SRI RAGHUNATH LAKSHMANAN ... PETITIONER [BY SRI S.S.NAGANAND, SENIOR COUNSEL FOR SRI SRIRANGA S., ADV.] AND: 1. UNION OF INDIA DEPARTMENT OF REVENUE MINISTRY OF FINANCE GOVERNMENT OF INDIA NORTH BLOCK, NEW DELHI-110000 THROUGH THE SECRETARY 2. THE ADDITIONAL COMMISSIONER OF CUSTOMS AIR CARGO COMPLEX MENZIES AVIATION BOBBA CORGO TERMINAL, DEVANAHALLI, BENGALURU-560300 3. THE PRINCIPAL COMMISSIONER OF CUSTOMS AIR CARGO COMPLEX -2- MENZIES AVIATION BOBBA CORGO TERMINAL, DEVANAHALLI, BENGALURU-560300 ...RESPONDENTS [BY SRI JEEVAN J. NEERALAGI, ADV. FOR R-1; SRI K.M.SHIVAYOGISWAMY, ADV. FOR R-2 & R-3.] THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE SHOW CAUSE NOTICE BEARING C.NO.VIII/10/14/2015 BACC SIIB DATED 27.06.2017 VIDE ANNEXURE-N ISSUED BY R-2. THIS PETITION HAVING BEEN HEARD AND RESERVED, IS COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PASSED THE FOLLOWING: ORDER The petitioner has challenged the show cause notice dated 27.06.2017 issued by the 2nd respondent under Section 28 of the Customs Act, 1962. 2. The petitioner is engaged in the business of (a) Import and trading of finished goods such as Mobile Phones, Computers, iPods (i.e., music system), Apple Watch, iPads and accessories and (b) after-sales services for the products mentioned at (a) above. The after-sales services is referred to as "Apple Care" within the Apple world. It is submitted that the petitioner has no facilities to repair the products (other than computers) for its customers in India as an after-sales activity. Even as per the Foreign Trade Policy, the petitioner is not allowed to import refurbished products. As such, the petitioner imported new units to replace the repaired or malfunctioning units. It is contended that the petitioner was paying Additional Duty of Customs (Countervailing Duty) under Section 3 of the Customs Tariff Act, 1975 on the transaction value of the petitioner's goods imported under the Apple Care brand of services. The Customs Department at the Air Cargo Complex disputed the valuation methodology adopted by the petitioner on the subject goods on the premise that the Retail Sales Price (RSP)/Maximum Retail Price (MRP) has to be applied, not the Transaction Value. 3. It is submitted that on 14.12.2012, a representation was given by the petitioner company to the second respondent to provide an opportunity to put- forth the explanation inasmuch as the countervailing duty paid on the transaction value and not on MRP. On such opportunity provided, the second respondent on consideration of all the information provided by the petitioner regarding adoption of transaction value, issued a letter dated 27.02.2013 inter alia directing the petitioner to pay countervailing duty on all goods of Apple Care [warranty and out of warranty] as per Section 4A of the Act 1994. On further clarification sought by the petitioner, it was communicated that extension up to 30.04.2014 is granted for provisional assessment; there shall be no more extensions; the importer shall take all the steps to clear the warranty goods under Section 4A of the Act wherever the said provisions are applicable. On the request made by the petitioner seeking for final assessment of provisionally assessed goods, the Deputy Commissioner of Customs called for certain documents. 4. It is submitted that the petitioner was shocked to receive a show cause notice dated 27.06.2017 by the second respondent under Section 28 of the Act calling upon the petitioner to show cause as to why: [i] The goods imported as warranty replacement goods but a small portion of them subsequently sold for out of warranty valued at Rs.8,65,68,087/- should not be confiscated under Section 111[m] of the Customs Act, 1962. [ii] The differential duty of Rs.9,70,981/- should not be demanded and recovered from them under the provisions of Section 28[4] of the Customs Act, 1962. [iii] Interest under Section 28AA of the Customs Act, 1961 should not be levied and demanded from them. [iv] Penalty under Section 112 and 114A of the Customs Act, 1962 should not be imposed on them. Being aggrieved by the same, the petitioner is before this Court. 5. Learned Senior Counsel Sri.S.S.Naganand, representing the learned counsel for the petitioner would submit that the impugned show cause notice suffers from the vice of arbitrariness and lacks jurisdiction. The existence of an alternative remedy is not a bar to invoke the writ jurisdiction, as the impugned show cause notice has been issued invoking the extended period of limitation on the basis of unsubstantiated allegation of suppression with an intention to evade payment of customs duty. Limitation being a question of jurisdiction, the writ petition requires to be adjudicated on merits. 6. Learned senior counsel submitted that as per Section 28[1] of the Act, 1962, the extended period of limitation may be invoked only if there is [i] collusion, [ii] any willful mis-statement; [iii] suppression of facts. A mere bald allegation of suppression of facts has been made in the impugned show cause notice without any specific reference to any Act or omission on the part of the petitioner. The executive order dated 27.02.2013 states that all the goods under the Apple Care umbrella of services were to be assessed to customs duty under the RSP Valuation. It was argued that the impugned show cause notice is in complete contradiction to the circular dated 10.03.2017 issued by the Central Board of Excise and Customs. 7. The learned counsel for the revenue has filed statement of objections. It is contended that the writ petition is not maintainable before this court by-passing the efficacious alternative remedy provided under the Act. It was submitted that to meet the principles of natural justice, personal hearing was fixed on 30.1.2018 and the same has been adjourned at the request of the petitioner from time to time. The petitioner without attending before the original authority has rushed to this court. 8. It was argued that only during the queries raised on the petitioner while answering to question No.4 to the statement dated 28.6.2017, the petitioner admitted the fact that in very small percentage of cases, if the damage is not covered under warranty, they support the customer with a replacement item for exchange price. Further to query No.6 it was answered that the petitioner sell their products which is not covered under warranty. These material facts were placed before the original Authority vide their letter 20.6.2017. Till 19.6.2017, in all the correspondence with the department, the petitioner has stated that apple care products have been imported for warranty replacements. The said fact was suppressed by the petitioner with an intent to evade payment of differential duty arising out of such sale and hence the department invoking the extended period has issued the show cause notice. 9. Adverting to the rival submissions made by the learned counsel appearing for the parties, it is evident that the petitioner has invoked the writ jurisdiction without appearing before the statutory Authority. It is well settled law that there is no bar to entertain the writ petition if the impugned notice issued is without jurisdiction. To examine this aspect, it is apt to refer to the judgments referred to by the learned Senior counsel. 10. In the case of Calcutta Discount Co. Limited Vs. Income Tax Officer, Companies District I, Calcutta and another reported in AIR 1961 S.C. 372 the Hon'ble Apex Court has observed thus: "Does the duty however extend beyond the full and truthful disclosure of all primary facts ? In our opinion, the answer to this question must be in the negative. Once all the primary facts are before the assessing authority, he requires no further assistance by way of disclosure. It is for - 10 - him to decide what inferences of facts can be reasonably drawn and what legal inferences have ultimately to be drawn. It is not for somebody else-far less the assessee--to tell the assessing authority what inferences-whether of facts or law should be drawn. Indeed, when it is remembered that people often differ as regards what inferences should be drawn from given facts, it will be meaningless to demand that the assessee must disclose what inferences-whether of facts or law-he would draw from the primary facts." This judgment was rendered in the context of interpreting the phrase "Reason to believe" under Section 34 of the Indian Income Tax Act, 1922. 11. In Uniworth Textiles Limited Vs. Commissioner of Central Excise, Raipur reported in (2013)9 SCC 753 the Hon'ble Apex Court has observed as under: "12. We have heard both sides, Mr. R.P. Bhatt, learned senior counsel, appearing on behalf of the appellant, and Mr. Mukul Gupta, learned senior counsel appearing on behalf of the Revenue. We are not convinced by the reasoning of the - 11 - Tribunal. The conclusion that mere non-payment of duties is equivalent to collusion or willful misstatement or suppression of facts is, in our opinion, untenable. If that were to be true, we fail to understand which form of non-payment would amount to ordinary default? Construing mere non-payment as any of the three categories contemplated by the proviso would leave no situation for which, a limitation period of six months may apply. In our opinion, the main body of the Section, in fact, contemplates ordinary default in payment of duties and leaves cases of collusion or willful misstatement or suppression of facts, a smaller, specific and more serious niche, to the proviso. Therefore, something more must be shown to construe the acts of the appellant as fit for the applicability of the proviso. 19. Thus, Section 28 of the Act clearly contemplates two situations, viz. inadvertent non- payment and deliberate default. The former is canvassed in the main body of Section 28 of the Act and is met with a limitation period of six months, whereas the latter, finds abode in the proviso to the section and faces a limitation period of five years. For the operation of the - 12 - proviso, the intention to deliberately default is a mandatory prerequisite. 20. This Court in Aban Loyd Chiles Offshore Limited and Ors. Vs. Commissioner of Customs, observed:- "20. The proviso to Section 28(1)can be invoked where the payment of duty has escaped by reason of collusion or any willful misstatement or suppression of facts. So far as "misstatement or suppression of facts" are concerned, they are qualified by the word "wilful". The word "wilful" preceding the words "misstatement or suppression of facts" clearly spells out that there has to be an intention on the part of the assessee to evade the duty." 21. The Revenue contended that of the three categories, the conduct of the appellant falls under the case of "willful misstatement" and pointed to the use of the word "misutilizing" in the following statement found in the order of the Commissioner of Customs, Raipur in furtherance of its claim: "The noticee procured 742.51 kl of furnace oil valued at Rs. 54,57,357/- without payment of - 13 - customs duty by misutilizing the facility available to them under Notification No. 53/97-Cus. dt. 3.6.1997" 22. We are not persuaded to agree that this observation by the Commissioner, unfounded on any material fact or evidence, points to a finding of collusion or suppression or misstatement. The use of the word "willful" introduces a mental element and hence, requires looking into the mind of the appellant by gauging its actions, which is an indication of one's state of mind. Black's Law Dictionary, Sixth Edition (pp 1599) defines "willful" in the following manner: - "Willful -. Proceeding from a conscious motion of the will; voluntary; knowingly; deliberate. Intending the result which actually comes to pass... An act or omission is "willfully" done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done..." 23. In the present case, from the evidence adduced by the appellant, one will draw an - 14 - inference of bona fide conduct in favour of the appellant. The appellant laboured under the very doubt which forms the basis of the issue before us and hence, decided to address it to the concerned authority, the Development Commissioner, thus, in a sense offering its activities to assessment. The Development Commissioner answered in favour of the appellant and in its reply, even quoted a letter by the Ministry of Commerce in favour of an exemption the appellant was seeking, which anybody would have found satisfactory. Only on receiving this satisfactory reply did the appellant decide to claim exemption. Even if one were to accept the argument that the Development Commissioner was perhaps not the most suitable repository of the answers to the queries that the appellant laboured under, it does not take away from the bona fide conduct of the appellant. It still reflects the fact that the appellant made efforts in pursuit of adherence to the law rather than its breach. 24. Further, we are not convinced with the finding of the Tribunal which placed the onus of providing evidence in support of bona fide conduct, by observing that "the appellants had not brought - 15 - anything on record" to prove their claim of bona fide conduct, on the appellant. It is a cardinal postulate of law that the burden of proving any form of mala fide lies on the shoulders of the one alleging it. This Court observed in Union of India Vs. Ashok Kumar that: "21......it cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility." 25. Moreover, this Court, through a catena of decisions, has held that the proviso to Section 28 of the Act finds application only when specific and explicit averments challenging the fides of the conduct of the assessee are made in the show cause notice, a requirement that the show cause notice in the present case fails to meet. In Aban Loyd Chiles Offshore Limited and Ors. (supra), this Court made the following observations: "21. This Court while interpreting Section 11-A of the Central Excise Act in Collector of Central Excise v. H.M.M. Ltd. (supra) has - 16 - observed that in order to attract the proviso to Section 11-A(1) it must be shown that the excise duty escaped by reason of fraud, collusion or willful misstatement of suppression of fact with intent to evade the payment of duty. It has been observed: '2...Therefore, in order to attract the proviso to Section 11- A(1) it must be alleged in the show- cause notice that the duty of excise had not been levied or paid by reason of fraud, collusion or willful misstatement or suppression of fact on the part of the assessee or by reason of contravention of any of the provisions of the Act or of the Rules made thereunder with intent to evade payment of duties by such person or his agent. There is no such averment to be found in the show cause notice. There is no averment that the duty of excise had been intentionally evaded or that fraud or collusion had been practiced or that the assessee was guilty of wilful misstatement or suppression of fact. In the absence of any such averments in the show-cause notice it is difficult to understand how the Revenue could sustain the notice under the proviso to Section 11-A(1) of the Act" - 17 - 22. It was held that the show cause notice must put the assessee to notice which of the various omissions or commissions stated in the proviso is committed to extend the period from six months to five years. That unless the assessee is put to notice the assessee would have no opportunity to meet the case of the Department. It was held: "2....There is considerable force in this contention. If the department proposes to invoke the proviso to Section 11-A(1) , the show-cause notice must put the assessee to notice which of the various commissions or omissions stated in the proviso is committed to extend the period from six months to 5 years. Unless the assessee is put to notice, the assessee would have no opportunity to meet the case of the department. The defaults enumerated in the proviso to the said sub-section are more than one and if the Excise Department places reliance on the proviso it must be specifically stated in the show-cause notice which is the allegation against the assessee falling within the four corners of the said proviso...." (Emphasis supplied) - 18 - 12. In Siemens India Limited Vs. State of Maharashtra and others reported in (2006)12 SCC 33 it is observed thus: "Although ordinarily a writ court may not exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr. AIR 1987 SC 943, Special Director and Another v. Mohd. Ghulam Ghouse and Another, (2004) 3 SCC 440 and Union of India and Another v. Kunisetty Satyanarayana, 2006 (12) SCALE 262], but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose [See K.I. Shephard and Others v. Union of India and Others (1987) 4 SCC 431 : AIR 1988 SC 686]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the - 19 - counter affidavit as also in its purported show cause notice. In the said case, indeed a demand was made terming the same as a show-cause notice. The Hon'ble Apex Court has observed that the Statutory Authority has already applied his mind and has formed an opinion as regards the liability or otherwise of the appellant therein. 13. In the case of Uniworth Textiles, supra, the Hon'ble Apex Court was construing whether mere non payment of duty would come within the ambit of three categories contemplated by the proviso for which the extended period under the proviso to section 28 (1) of the Act could be invoked. In the said case the matter was carried before the Appellate Authorities as well as the Tribunal. The Appellate Authorities and the Tribunal indeed had given a finding in the matter. In that context, the Hon'ble Apex Court has observed that - 20 - in the absence of specific averments find in the show cause notice which is a mandatory requirement for commencement of action under the said proviso, and that nothing on record disclose a willful default on the part of the assessee, invoking the extended period of limitation under the said provision is held to be unjustifiable. 14. In the case of Collector of Central Excise, Indore Vs. Indore Bottling Company, Indore reported in (2003)11 SCC 438, supra, the Hon'ble Apex Court considering the finding of the Tribunal that the assessee had already informed collecting of the said charges in March 1994 as such issuing a show cause notice on 6.6.97 by the department relating to the period from1.3.1994 to 30.11.1996 is not a case to invoke section 11A of the Central Excise Act, 1944. 15. In the case of ACC Limited Vs. Union of India the assessee was before this court challenging - 21 - the issuance of third show cause notice after the proceedings were adjudicated on more than two occasions. In that context it was held that it is not permissible to reopen the issue, which stands concluded on the spacious ground that the company had made mis-statements, the third show cause notice is based on unsustainable grounds. 16. In the case of Union of India Vs. I.T.C. Limited and another reported in 1985 ECR 2013(Kar), this court after examining the show cause notice extensively, issued by the superintendent recorded that the said authority was trying to get round the order of the appellate collector and to undo the same. Accordingly, the reasoning and conclusion of the learned Judge on this aspect is held to be unexceptionable. 17. In the case of Godrej Food Limited and another Vs. Union of India and others reported in - 22 - 1993 SCC Online MP 66 the Hon'ble Madhya Pradesh High Court has observed that a mere mechanical repetition of the language of the provision in the show cause notice would not confer jurisdiction on the collector of the Central Excise to issue show cause notice under Section 11A of the Act beyond period of six months taking advantage of the proviso to that section. During the period of notice, no other material was shown to contend that there was any fraud played upon the department. The matter was relating to classification of the product. In the said case the impugned show cause notice was not the first of its kind to start a controversy. On the earlier show cause notice issued, an order has already been passed against the assessee and the Appellate Authority had confirmed the same. The order being passed on the earlier show cause notice and the assessee had approached the Appellate Authority, it was argued that appellate remedy under the Act is not an equally efficacious remedy. - 23 - Thus, the aforesaid judgments are held in a different context as discussed above and are not applicable to the facts of the present case. 18. It is true that the extended period of limitation under Section 28[1] of the Act can be invoked only in the following circumstances: [i] Collusion or [ii] any willful mis-statement or [iii] suppression of facts. It is the contention of the Revenue that during the period from January 2010 to July 2012, the petitioner has paid the duty on MRP value in respect of warranty replacements but for the period July 2012 to November 2012 customs duty was paid on Transaction Value and were clearing the warranty replacement goods on provisional assessment basis paying customs duty on MRP of the finished goods for the period December 2012 onwards. It is asserted by the petitioner that in - 24 - respect of the said periods, the petitioner has erroneously valued the products imported for replacements at the maximum retail price at the products sold in retail. These are all vexed questions which requires to be examined by the authorities. 19. Clauses 3.2 and 3.6 of the Circular dated 10.03.2017 issued by the Central Board of Excise and Customs reads thus: "3.2 Ingredients for extended period: Extended period can be invoked only when there are ingredients necessary to justify the demand for the extended period in a case leading to short payment or non- payment of tax. The onus of establishing that these ingredients are present in a given case is on revenue and these ingredients need to be clearly brought out in the Show Cause Notice alongwith evidence thereof. The active element of intent to evade duty by action or inaction needs to be present for invoking extended period. 3.6 Power to invoke extended period is conditional: Power to issue notice for extended period is restricted by presence of active ingredients which indicate an intent to evade duty as explained above. Indiscriminate use of such restricted powers - 25 - leads to fruitless adjudications, appeals and reviews, inflates the figures of outstanding demands and above all causes unnecessary harassment of the assesses. Therefore, before invoking extended period, it must be ensured that the necessary and sufficient conditions to invoke extended period exists." 20. The relevant paragraphs of the Show Cause Notice dated 27.06.2017 impugned are quoted for ready reference: "7. Whereas, letter dated 03.06.2017 was sent to the importer seeking details of imports of Applecare products i.e., warranty replacement units of IPods, Ipads, Iphones for the period 01.07.2012 to 09.12.2012. As, the importer has not furnished the details even after repeated reminder letters, a summons dated 14.06.2017 was sent under Section 108 of the Customs Act, 1962. The statement of Shri Raghunath Lakshmanan, working as Manager-Trade Compliance with the importer and authorized by the importer appeared before the Superintendent to render statement, which was recorded on 20.06.2017 [enclosed as Annexure-C]. Shri Raghunath Lakshmanan, had inter alia stated that the goods imported in general [referred to as finished goods by him] were imported for retail sale and sold to their distributors for further distribution in the channel, while in the case of Apple Care products [i.e., i-phone, i-pod & i-pad], they were imported to support their customers - 26 - during the warranty period. However he stated that a very small percentage of cases if found for any reason that the damage is not covered under warranty, they support the customers with a replacement for exchange price. 8. Further, the importer vide their letter dated 20.06.2017 furnished details for the period from 01.07.2012 to 09.12.2012, of the goods imported and sold out of warranty. 9. From the foregoing paras, it appears that the importer has contravened the provisions under Section 14 of the Customs Act, 1962, in as much as, they have not furnished the correct retail sales price [RSP] of the goods as envisaged under these provisions. The said issue of valuation of goods for Warranty replacements and applicability of MRP based assessment is dealt in the case of Bharti Telemedia Limited, Vs Commissioner of Customs [Import] Nava Sheva, vide case law 2016 [331] ELT 138 Tri Mumbai, where is held that where set top boxes brought for warrant and sold as replacement box to subscriber, CVD payable under Section 4A of Central Excise Act. Taking into cognizance the Retail Sale Price declared for clearance of i-phone, i-pod & i- pad, at about the same time, the differential duty liability on account of such incorrect RSP on the goods imported for warranty purpose, but sold out of warranty works out to Rs.9,70,981/- [Rupees Nine Lakhs Seventy Thousand Nine Hundred and Eighty One only], for the period from 01.07.2012 to - 27 - 09.12.2012, the details of which is enclosed as Annexure-D to this notice. 10. In view of above suppression of facts of RSP, it appears that the customs duty short paid is required to be recovered from them in terms of the provisions contained under Section 28[4] of the Customs Act, 1962 and interest under Section 28AA of the said Act. The goods imported as Warranty replacement goods but a small portion of them subsequently sold for out of warranty as explained in the foregoing paras are liable for confiscation under Section 111 [m] of Customs Act, 1962." 21. The reference made to the circular instructions issued by the Central Board of Excise and Customs inasmuch as clauses 3.2 and 3.6 no doubt deals with the ingredients for extended period, but on the examination of the show cause notice impugned it cannot be held that such ingredients are not present. In such circumstances, the show cause notice issued to submit a written explanation cannot be held to be ill founded. Writ petition is premature and deserves to be rejected. - 28 - I.A.No.1/19 has been filed by the petitioner submitting that the respondent has issued the notice dated 14.10.2019 calling upon the petitioner for personal hearing. The petitioner is at liberty to put forth the reply/explanation before the respondent No.2. The respondent No.2 shall consider the submissions/reply of the petitioner and shall take a decision in accordance with law without being influenced by any of the observations made herein above, after providing reasonable opportunity of hearing to the petitioner. All rights and contentions of the parties are left open. With the aforesaid observations and directions, writ petition as well as pending I.As stand disposed of. Sd/- JUDGE Dvr:


Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1696 OF 2010 [Arising out of SLP (CRL.) No.4624 of 2010] Main Pal ... Appellant Vs. State of Haryana ... Respondent JUDGMENT R. V. RAVEENDRAN J., Leave granted. 2. An FIR was registered on 23.3.1996 on the statement of one Prakashi Devi. She stated that on the night of 22/23.3.1996, while she and her daughter-in-law Sheela Devi were sleeping in her house, around 11.30 PM, the appellant jumped over the front wall of her house and broke the bulbs and ran away; that at that time, no male member was present in the house except the children; that around 00.30 AM the appellant again came into her house and touched her daughter-in-law Sheela Devi who woke up and raised an alarm; and that the appellant immediately ran away. The police investigated into the said complaint and submitted a report under Section 173 of the Code of Criminal Procedure (for short `the Code'). On that basis, the following charge was framed by the Judicial Magistrate, First Class, Karnal, against the appellant - "That on 23.3.1996, after having made preparation for causing hurt or assault, you committed house trespass into the house of Smt. Prakashi Devi, and thereby committed an offence punishable under section 452 IPC within my cognizance. Secondly on the same date, time and place, you assaulted and used criminal force against abovenamed Prakashi Devi with intent to outrage her modesty and thereby committed an offence punishable under section 354 IPC and within my cognizance. And I hereby direct that you be tried on the above said charge by this court." (emphasis supplied) When the said charged was read over and explained to the appellant, he pleaded not guilty to the said charge and claimed trial. 3. Prakashi Devi was examined as PW-1. She reiterated what was recorded in the FIR, that the appellant came into the house around 11.30 PM and broke the bulbs, that he came again around 00.30 AM and touched her daughter-in-law (Sheela Devi) and when her daughter-in-law woke up and raised an alarm, the appellant ran away. In her cross-examination, Prakashi Devi stated that she has five sons; that only her husband and one son named Mahavir were staying with her; that the other four sons were married and were not staying with her; that on that night, her husband was away in the fields and her son Mahavir was also not present in the house. However, when confronted with her statement recorded in the FIR, she admitted having stated that when the appellant had come first time at around 11.30 PM and broke the outside bulbs, her son woke up and went out of the house. She also admitted that the appellant did not touch her nor teased her nor abused her. Her daughter-in-law Sheela Devi gave evidence as PW-2 and stated that she was married to one Jaibir who worked in the military services; that at 11 to 11.30 PM the accused scaled the door and broke the bulbs in the verandah of her house; that when she identified the accused and raised an alarm the accused ran away; that again he came around 00.30 AM by scaling the door and caught her hand; and that when she raised an alarm and when her mother-in-law woke up, he ran away. It was elicited in her cross-examination that the accused did not go towards her mother-in-law nor say anything to her mother-in-law; that she used to come to the village where her in-laws were residing, only when her husband came home; and that the house of her father-in-law was surrounded by the houses of his brothers and their sons. Both PW1 and PW2 stated that the house of the accused was at a distance of 15-16 houses from the house of Prakashi Devi; that the accused had never come into their house earlier; that their family and the accused were not on visiting terms with each other even during functions, marriages or death, though they were on visiting terms with others in the village. PW 2 also stated that she did not know the particulars of the dispute between the accused and her in-laws. The investigating officer was examined as PW-3. The accused examined a witness Ex-Sarpanch of the village as DW-1 and he stated that there was a quarrel between the accused and complainant's son Surinder about a water course and subsequently he came to know that the quarrel was converted into a false case against the accused by registering a false allegation that the accused had outraged the modesty of a woman. 4. The learned Magistrate by judgment dated 2.2.2001, held the accused guilty of offences under sections 452 and 354 Cr.PC and sentenced him for rigorous imprisonment for six months and a fine of Rs.1,000/- in default thereof simple imprisonment for one month. The appeal filed by the accused was dismissed by the Addl. Sessions Judge on 20.2.2002. The criminal revision filed by the appellant was disposed of by the High Court on 16.3.2010 upholding the conviction but reducing the sentence from six to four months rigorous imprisonment. That order is challenged by the accused. 5. One of the contentions urged by the accused before the appellate court and High Court was that the charge against him was that he attempted to outrage the modesty of Prakashi Devi (PW-1) whereas the evidence was to show that he attempted to outrage the modesty of her daughter-in-law Sheela Devi. He contended that as the charge levelled against him was not proved, and as he was not required to defend himself against a charge that he assaulted and outraged the modesty of Sheela Devi, he ought to have been acquitted. This was negatived by the appellate court and High Court holding that an accused cannot take advantage of a technical defect in framing the charge. It was held that mentioning the name of Prakashi Devi instead of the name of Sheela Devi in the charge was an error that did not prejudice the accused. 6. The following question therefore arises for our consideration: When the charge is that the accused assaulted `X' and outraged her modesty, but the evidence is that he assaulted `Y' to outrage her modesty, can the accused be punished, for having assaulting and outraging the modesty of `Y', even though he was not charged with any offence with reference to `Y', on the ground that the error or omission in the charge did not prejudice the accused or result in failure of justice. 7. Section 211 of the Code relates to the contents of the charge. It inter alia provides that every charge under the Code shall state the offence with which the accused is charged. Section 212 of the Code provides that the charge shall contain the particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. Section 215 of the Code however clarifies that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Section 464 of the Code relates to effect of omission to frame, or absence of, or error in, charge. Sub-section (1) thereof provides that no finding, sentence or order of a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charge, unless, in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. Sub-section (2) of sec. 464 provides that if the court of appeal, confirmation or revision is of opinion that failure of justice has in fact been occasioned, it may -- (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge; (b) in case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit. 8. In Willie (William) Slaney vs. State of Madhya Pradesh [AIR 1956 SC 116] this court explained the concepts of "prejudice to the accused" and "failure of justice" thus:- "(6) Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is `substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based. (7) Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions." This Court then examined the question as to when a procedure adopted could be said to have worked actual injustice to the accused and held : "Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth. These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land because either way they would be struck down at once. Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused. ... The Code is emphatic that `whatever' the irregularity it is not to be regarded as fatal unless there is prejudice." "It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction. Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one." "In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand; also it will always be material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early stage......But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another, because the facts can never be alike in any two cases however alike they may seem. There is no such thing as a judicial precedent on facts though counsel, and even judges, are sometimes prone to argue and to act as if there were." (emphasis supplied) In Gurbachan Singh v. State of Punjab [AIR 1957 SC 623] following Willie Slaney, this Court held: "......in judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself." In Shamnsaheb M. Multtani vs. State of Karnataka - 2001 (2) SCC 577, this Court considered the meaning of the expression "failure of justice" occurring in section 464 of Cr.PC. This Court held thus : "The crux of the matter is this : Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under section 304-B IPC when all the ingredients necessary for the said offence have come out in evidence, although he was not charged with the said offence? ... a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice....The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage. One of the cardinal principles of natural justice is that no man should be condemned without being heard, (audi alteram partem). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalizing an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice." The above principles are reiterated in several decisions of this Court, including State of West Bengal vs. Laisal Haque - AIR 1989 SC 129, State of A.P. vs. Thakkidiram Reddy - 1998 (6) SCC 554, Dalbir Singh v. State of UP [2004 (5) SCC 334], Dumpala Chandra Reddy vs. Nimakayala Bali Reddy - 2008 (8) SCC 339 and Sanichar Sahni vs. State of Bihar - 2009 (7) SCC 198. 9. The following principles relating to sections 212, 215 and 464 of the Code, relevant to this case, become evident from the said enunciations: (i) The object of framing a charge is to enable an accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet. The charge must also contain the particulars of date, time, place and person against whom the offence was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (ii) The accused is entitled to know with certainty and accuracy, the exact nature of the charge against him, and unless he has such knowledge, his defence will be prejudiced. Where an accused is charged with having committed offence against one person but on the evidence led, he is convicted for committing offence against another person, without a charge being framed in respect of it, the accused will be prejudiced, resulting in a failure of justice. But there will be no prejudice or failure of justice where there was an error in the charge and the accused was aware of the error. Such knowledge can be inferred from the defence, that is, if the defence of the accused showed that he was defending himself against the real and actual charge and not the erroneous charge. (iii) In judging a question of prejudice, as of guilt, the courts must act with a broad vision and look to the substance and not to the technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself. 10. The respondent relied upon the decision of this court in State of Himachal Pradesh v. Geeta Ram [2000 (7) SCC 452]. In that case the respondent was chargesheeted for an offence under section 376 IPC and section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Magistrate committed the case to Sessions Court which was specified as a special court under the Act. The special court framed a charge only for an offence under section 376 IPC and after trial convicted the respondent under section 376 IPC and sentenced him to ten years imprisonment. The High Court set aside the conviction on the technical ground that the trial court had no jurisdiction as it was a special court specified in under the SC & ST (Prevention of Atrocities) Act. This Court reversed the decision of the High Court on the ground that a special court under the Act being a sessions court, it continued to have jurisdiction to try the case for the offence under section 376 IPC. That matter was considered under section 465 of the Code and not relevant on the facts of this case. 11. As noticed above, in this case, the charge was that appellant committed trespass into the house of Prakashi Devi for assaulting Prakashi Devi, and assaulted the said Prakashi Devi and outraged her modesty. The accused concentrated his cross-examination with reference to the said charge and elicited answers showing that he did not assault or outrage the modesty of Prakashi Devi. He did not try to challenge the evidence let in to show that he had tried to outrage the modesty of Sheela Devi, as he was not charged with such an offence. The evidence of PW-1 and PW-2 was that the appellant did not touch or tease or abuse Prakashi Devi. Their evidence was that he touched/caught the hand of Sheela Devi and when she raised an alarm he ran away. When the charge was that the accused attempted to commit trespass into the house of Prakashi Devi with intent to outrage the modesty of Prakashi Devi, the conclusion of the appellate court and the High Court that there was no failure of justice if he is punished for the offence of having assaulted Sheela Devi and outraging her modesty, is opposed to principles of fair play and natural justice embodied in sections 211, 212, 215 and 464 of the Code. When the accused is charged with having entered the house of Prakashi Devi and assaulted the said Prakashi Devi with intent to outrage her modesty and when the accused defended himself in regard to the said charge and concentrated on proving that the said charges were not true, he cannot be convicted for having assaulted and outraging the modesty of someone else, namely Sheela Devi. The accused did not have any opportunity to meet or defend himself against the charge that he assaulted Sheela Devi and outraged her modesty. Nor did he proceed with his defence on the understanding that he was being charged with having committed the offence with reference to Sheela Devi. One of the fundamental principles of justice is that an accused should know what is the charge against him so that he can build his defence in regard to that charge. An accused cannot be punished for committing an offence against `Y' when he is charged with having committed the offence against `X' and the entire defence of the accused was with reference to charge of having committed offence against `X'. 12. The illustrations under a provision of a Statute offer relevant and valuable indications as to meaning and object of the provision and are helpful in the working and application of the provision. Illustration (e) under section 215 of the Code, as contrasted from illustration (d) under that section, throws some light on this issue. The said illustrations are extracted below : "(d) A is charged with the murder of Khoda Baksh on the 21st January, 1882. In fact, the murdered person's name was Haidar Baksh, and the date of the murder was the 20th January, 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial. (e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh (who tried to arrest him for that murder) on the 21 st January, 1882. When charged for the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled, and that the error was material." Applying the guidance offered by the said illustrations and the legal principles evolved by this Court, the position will be as follows : If Sheela Devi alone had been present at the house at the time of the incident and the accused had assaulted and outraged the modesty of the said Sheela Devi, but in the charge the name of the victim had been erroneously mentioned, say as Sushila Devi or Prakashi Devi (though there was no person by such name), and the inquiry exclusively referred to the assault and outraging the modesty of Sheela Devi, the court could infer that the accused was not misled and the error in the charge was immaterial. On the other hand, if two persons were present in the house at the time of the incident namely Prakashi Devi and Sheela Devi and the accused is charged with trespassing into the house of Prakashi Devi, and assaulting and outraging the modesty of the said Prakashi Devi, and the witnesses refer only to the assault and outraging the modesty of Sheela Devi, the court will have to infer that the accused was prejudiced, if the accused had solely concentrated and focused his defence and entire cross-examination to show that he did not commit the offences against Prakashi Devi. 13. The court having charged the accused with the offence of having trespassed into the house of Prakashi Devi with intent to assault her and having further charged him for having assaulted the said Prakashi Devi by outraging her modesty, convicts him on the ground that though he did not assault or outrage the modesty of Prakashi Devi, he had outraged the modesty of Sheela Devi, that would lead to failure of justice. There was a material error in the charge as it violated the requirement of sub-section (1) of section 212 of the Code, that the charge shall contain particulars as to the person against whom the offence was committed. There were two women present at the house at the time of the alleged incident, namely Prakashi Devi and her daughter-in-law Sheela Devi. In view of the specific charge, the accused concentrated on showing that the charge was false. He did not attempt to meet the case made out in the trial that the offence was against Sheela Devi. The accused was thus clearly misled by the error in the charge which caused prejudiced to the accused thereby occasioning failure of justice. Therefore, we are of the view that there should be a new trial after charging him with the offence of outraging the modesty of Sheela Devi. 14. The appeal is therefore allowed, the conviction of the accused is set aside and the matter is remitted to the trial court with a direction for a new trial after framing a charge by substituting the words "her daughter-in-law Sheela Devi" for the words "abovenamed Prakashi Devi", in the second part of the charge. ...........................J (R. V. Raveendran) .............................J (H. L. Gokhale) New Delhi; September 7, 2010.