Details of the case are given below. Stung by the observations made by the Karnataka High Court, the Commissioner of Police, Central Division has issued instructions to all its divisions to take corrective steps immediately. The Memorandum dated 24 December 2020 takes serious exception to the practice of the Station House Officers to send back complainants on the flimsy ground of lack of jurisdiction etc. The Memorandum directs compulsory registration of FIRs and transfer of the case to the jurisdictional police station. Please see the Memorandum below.
Text of Judgment. The petitioner Tarabai is present along with her son Suresh. This Habeas Corpus writ petition was filed on account of her son Suresh going missing on 20.10.2020. Subsequently, he was produced before the court on 03.11.2020. The entire development in the case after Suresh going missing discloses to us a very disturbing facet of the functioning of the police stations in this area of the State. The problem, primarily, is one of police officers not complying with the procedure prescribed under the Code of Criminal Procedure, which places a high premium on the guarantee of liberty of the individuals. In our proceedings dated 03.11.2020, we had noted that respondent no.3 in these proceedings has admitted that the petitioner Tarabai had approached him in the police station with a grievance that her son had been abducted and thereafter he was not found. The respondent no.3, at that point of time, was quite conscious that what was conveyed to him by the petitioner Tarabai constituted a cognizable offence and, therefore, he was obliged to make an entry in the Station House Diary in regard to the same and further he was required to register FIR. If the facts disclosed to him amounted to an offence taking place within the limits of his police station, then he should have proceeded with the investigation of the case and if the offence disclosed took place outside his jurisdiction, then he was obliged to transfer the FIR to the jurisdictional police station for further investigation of the case. Inspite of the same, he has overlooked the mandate of law in as much as he has not made an entry in the Station House Diary regarding the substance of the information received nor has he registered FIR which has resulted in stultifying the precious right of the petitioner and her son Suresh. When we called upon the respondent no.3 who is present before the court to account for the said infraction of the law affecting the liberty of Suresh, the learned AGA representing him submits that a lenient view may be taken for the said violation of the procedure notwithstanding the serious implications for the liberty of Suresh and she further submits that respondent no.3 is prepared to file an undertaking to do some community service to atone for the same. We permit him to do so. The respondent no.3 has now filed an undertaking which reads as under:
“I the undersigned do hereby state that, as per the direction of the Hon’ble Court, I am ready to comply with the direction issued by the Hon’ble Court by cleaning the road in front of my Police Station for one week. That I render my unconditional apology for not registering the First Information Report and assure the Hon’ble Court that I will not repeat the same in future.”
We accept the same and direct the respondent no.3 to comply with the undertaking by cleaning the road in front of his police station for a period of one week. However, this aspect of the matter requires serious consideration by the superior officers of the department. Therefore, we direct the Superintendent of Police, Kalaburagi District to hold a Workshop/ Orientation course to all the police officers working within the Kalaburagi District on the subject of “Zero FIR” vide 1) KIRTI VASHIST v. STATE AND OTHERS [ 2019 SCC OnLine Del 11713 Para 16 to 20] and 2) RHEA CHAKRABORTY V. STATE OF BIHAR AND OTHERS [2020 SCC OnLine SC 654 Para 23, 28] and the provisions under the Code of Criminal Procedure, 1973 pertaining to registration of FIR and investigation of cases
Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd., (2003) 4 SCC 341 – Paragraph 10. The courts in India like the courts in England are courts of both law and equity. The principles governing grant of injunction — an equitable relief — by a court will also govern grant of anti-suit injunction which is but a species of injunction. When a court restrains a party to a suit/proceeding before it from instituting or prosecuting a case in another court including a foreign court, it is called anti-suit injunction. It is a common ground that the courts in India have power to issue anti-suit injunction to a party over whom it has personal jurisdiction, in an appropriate case. This is because courts of equity exercise jurisdiction in personam. However, having regard to the rule of comity, this power will be exercised sparingly because such an injunction though directed against a person, in effect causes interference in the exercise of jurisdiction by another court. 13….The test for issuance of the anti-suit injunction to a person amenable to the jurisdiction of the court in person has been varying; first it was “equity and good conscience” as could be seen from the decision of the House of Lords in Carron Iron Co. v. Maclaren (1855) 5 HLC 416. The test later adopted was “to avoid injustice” [see: Castanho v. Brown & Root (U.K.) Ltd.1981 AC 557. The test adopted in the recent cases is whether the foreign proceedings are “oppressive or vexatious” — SNI Aerospatiale case.(1987) 3 All ER 510 These expressions are not clearly defined but in C.S.R. Ltd. v. Cigna Insurance Australia Ltd.(1997) 189 CLR 345 the High Court of Australia used them in the sense “only if there is nothing which can be gained by them over and above what may be gained in local proceedings”. The Supreme Court of Canada adopted the test of the requirement of “the ends of justice”. The essence or the ultimate objective is to enquire how best the interests of justice will be served; whether grant of anti-suit injunction is necessary in the interests of justice. However, in a case where a jurisdiction agreement exists it is not necessary, in all cases, to show that foreign proceedings are vexatious, oppressive or that the local court is a natural forum for the claim and there is no obligation upon the claimant to seek relief from the foreign court first.
45. In Laker Airways Limited v. Sabena, Belgian World Airlines, 1984 U.S. App. LEXIS 24811, the United States Court of Appeals for the District of Columbia Circuit, while dealing with the limits of Federal Court’s power to conserve its adjudicatory authority over a case filed with the court, instead of actively raising all defensive claims in the Federal court, the named defendants initiated suits in foreign tribunals for the sole purpose of terminating the federal court’s adjudication of the litigation. It is also found that the issue raised in two different courts represents a head-on collision between the diametrically opposed antitrust policies of the United States and United Kingdom. While analysing the said situation, it is held as follows: — “It is well settled that English and American courts have power to control the conduct of persons subject to their jurisdiction to the extent of forbidding them from suing in foreign jurisdictions. However, the fundamental corollary to concurrent jurisdiction must ordinarily be respected: Parallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously, at least until a judgment is reached in one which can be pled as res judicata in the other. The mere filing of a suit in one forum does not cut off the preexisting right of an independent forum to regulate matters subject to its prescriptive jurisdiction. For this reason, injunctions restraining litigants from proceeding in courts of independent countries are rarely issued. A second reason cautioning against exercise of the power is avoiding the impedance of the foreign jurisdiction. Injunctions operate only on the parties within the personal jurisdiction of the courts. However, they effectively restrict the foreign courts ability to exercise its jurisdiction. If the foreign court reacts with a similar injunction, no party may be able to obtain any remedy. Thus, only in the most compelling circumstances does a court have discretion to issue an anti-suit injunction. There are no precise rules governing the appropriateness of anti-suit injunctions. The equitable circumstances surrounding each request for an injunction must be carefully examined to determine whether, in light of the principles outlined above, the injunction is required to prevent an irreparable miscarriage of justice. Injunctions are most often necessary to protect the jurisdiction of the enjoining court, or to prevent the litigant’s evasion of the important public policies of the forum.”
Airbus Industrie v. Laura Howell Linton, 1994 SCC OnLine Kar 29 : ILR 1994 KAR 1370 : (1994) 5 Kant LJ 63
In SNI Aerospatiale case the Privy Council laid down the principles to be applied by a court in deciding whether to restrain a foreign proceeding. They are as follows: “The principles applicable to the grant by an English court of an injunction to restrain the commencement or continuance of proceedings in a foreign jurisdiction were not the same as those applicable to the grant of a stay of English proceedings in favour of a more appropriate foreign forum, and where a remedy for a particular wrong was available both in an English court and a foreign court the English court would normally only restrain the plaintiff from pursuing the foreign proceedings if it would be vexatious or oppressive for him to do so.”
10….the following principles emerge: (1) In exercising discretion to grant an anti-suit injunction the court must be satisfied of the following aspects: (a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court; (b) if the injunction is declined, the ends of justice will be defeated and injustice will be perpetuated; and (c) the principle of comity — respect for the court in which the commencement or continuance of action/proceeding is sought to be restrained — must be borne in mind. (2) In a case where more forums than one are available, the court in exercise of its discretion to grant anti-suit injunction will examine as to which is the appropriate forum (forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings which are oppressive or vexatious or in a forum non-conveniens. (3) Where jurisdiction of a court is invoked on the basis of jurisdiction clause in a contract, the recitals therein in regard to exclusive or non-exclusive jurisdiction of the court of choice of the parties are not determinative but are relevant factors and when a question arises as to the nature of jurisdiction agreed to between the parties the court has to decide the same on a true interpretation of the contract on the facts and in the circumstances of each case. (4) A court of natural jurisdiction will not normally grant anti-suit injunction against a defendant before it where parties have agreed to submit to the exclusive jurisdiction of a court including a foreign court, a forum of their choice in regard to the commencement or continuance of proceedings in the court of choice, save in an exceptional case for good and sufficient reasons, with a view to prevent injustice in circumstances such as which permit a contracting party to be relieved of the burden of the contract; or since the date of the contract the circumstances or subsequent events have made it impossible for the party seeking injunction to prosecute the case in the court of choice because the essence of the jurisdiction of the court does not exist or because of a vis major or force majeure and the like. (5) Where parties have agreed, under a non-exclusive jurisdiction clause, to approach a neutral foreign forum and be governed by the law applicable to it for the resolution of their disputes arising under the contract, ordinarily no anti-suit injunction will be granted in regard to proceedings in such a forum conveniens and favoured forum as it shall be presumed that the parties have thought over their convenience and all other relevant factors before submitting to the non-exclusive jurisdiction of the court of their choice which cannot be treated just as an alternative forum. (6) A party to the contract containing jurisdiction clause cannot normally be prevented from approaching the court of choice of the parties as it would amount to aiding breach of the contract; yet when one of the parties to the jurisdiction clause approaches the court of choice in which exclusive or non-exclusive jurisdiction is created, the proceedings in that court cannot per se be treated as vexatious or oppressive nor can the court be said to be forum non-conveniens. (7) The burden of establishing that the forum of choice is a forum non-conveniens or the proceedings therein are oppressive or vexatious would be on the party so contending to aver and prove the same.
Dinesh Singh Thakur v. Sonal Thakur, (2018) 17 SCC 12 : (2019) 1 SCC (Civ) 765.Anti-suit injunctions are meant to restrain a party to a suit/proceeding from instituting or prosecuting a case in another court, including a foreign court. Simply put, an anti-suit injunction is a judicial order restraining one party from prosecuting a case in another court outside its jurisdiction. The principles governing grant of injunction are common to that of granting anti-suit injunction. The cases of injunction are basically governed by the doctrine of equity.
12. It is a well-settled law that the courts in India have power to issue anti-suit injunction to a party over whom it has personal jurisdiction, in an appropriate case. However, before passing the order of anti-suit injunction, courts should be very cautious and careful, and it should be granted sparingly and not as a matter of routine as such orders involve a court impinging on the jurisdiction of another court, which is not entertained very easily specially when it restrains the parties from instituting or continuing a case in a foreign court.
PPN Power Generating Company Limited v. PPN (Mauritius) Company, 2004 SCC OnLine Mad 668 : (2005) 2 LW 389 : (2004) 5 CTC 1 : (2004) 4 Mad LJ 434 : (2005) 3 Arb LR 354 : (2006) 129 Comp Cas 849 25…it is beneficial to deal with the scope of “anti-suit injunction” in general which are culled out from various decisions. The same is not defined or dealt with in the Code of Civil Procedure. (i) When a court restrains a party to a suit/proceedings before it from instituting or prosecuting a case in another court, including a foreign court, it is called “anti-suit injunction”. (ii) Anti-suit injunction can be issued on the ground of “equity and good conscience”. (iii) Anti-suit injunction can be granted “to avoid injustice”. (iv) If foreign proceedings are “oppressive or vexatious”, such anti-suit injunction can be granted. (v) To prevent the administration of justice being prevented for unjust ends of justice, anti-suit injunction can be granted with respect to foreign proceedings. (vi) There must be an equity which entitles one party as against the other, to an injunction to restrain the other from proceeding in the foreign court. (vii) To protect the courts’ own proceedings and process, anti-suit injunction can be granted. (viii) If the bringing of the legal proceedings involved unconscionable conduct or unconscientious exercise of legal right, such anti-suit injunction may be granted. (ix) Though the international anti-suit injunction operates only against the parties, it effectively restricts the jurisdiction of a foreign sovereign’s courts. (x) International anti-suit injunction can be granted whenever there is a duplication of parties and issues and the court determines with the prosecution of simultaneous proceedings would frustrate the speedy and effective determination of the case. (xi) There is no precious Rules governing the anti-suit injunction. (xii) Only in the most compelling circumstances, a court should exercise its discretion to issue an anti-suit injunction. (xiii) Such injunction is required to prevent irreparable and miscarriage of justice and to prevent the litigants’ evasion of the important public policies of the forum. (xiv) The Court should exercise such a power granting anti-suit injunction to enjoin foreign suits sparingly and only in very special circumstances.
44. The issues of Vexatious, oppressive and injustice were again dealt with at length in the subsequent case of Amchan Products Inc. Et Al v. Workers’ Compensation Board6. The Decision concerned 194 plaintiffs, of whom approximately 100 were British Colombia residents, who claimed damages in respect of injuries sustained as a result of, inter alia, inhalation of asbestos fibres. Notwithstanding the absence of any Texas nexus, proceedings were instituted in the Harrison Country Texas 71st Judicial District alleging negligence by reason of the defendant’s failure to warn of health risks associated with the use of asbestos. An injunction was sought restraining the Texas proceedings through the British Colombia Courts. Ultimately, this was granted on terms: “The defendants point out that no action has been commenced by them in British Colombia whereas in the cases referred to in argument there were actions commenced in both jurisdictions. I do not think that this is of any significance. If this fact was definitive then a complaint could always defeat an anti suit injunction by simply not commencing an action in a jurisdiction where the anti suit injunction is sought. That cannot be right.”
Rajshree Sugars & Chemicals Ltd. v. AXIS Bank Ltd., 2008 SCC OnLine Mad 746 : (2009) 1 CTC 227 : (2009) 1 LW 209 : (2008) 8 Mad LJ 261 : AIR 2011 Mad 144 : (2009) 2 BC 403.
Therefore when the invokation of the jurisdiction of a Court on the basis of a jurisdiction clause contained in an agreement, itself cannot be curtailed by an anti-Suit injunction, the question of injuncting a party from invoking the jurisdiction of a special forum statutorily created to decide certain disputes, does not arise. In the case on hand, Act 51 of 1993 creates a special Tribunal and confers jurisdiction upon the Tribunal to decide all claims made by Banks and Financial Institutions. Therefore the respondent cannot be injuncted from initiating any proceedings for recovery of any money due to them, before the Debts Recovery Tribunal.
50. The general power of superintendence of the High Courts under Article 226/227 of the Constitution, over all Tribunals and other Forums constituted under special enactments, that was reinforced by the Constitution Bench decision in L. Chandrakumar’s case, does not make the Debts Recovery Tribunal, a Court subordinate to this Court. Therefore no injunction can be granted, for restraining the respondent-Bank from initiating any proceedings against the plaintiff herein before the Debts Recovery Tribunal.
Relevant paragraphs: 11.Having regard to the aforesaid rival contentions, the prime question for consideration in the application is, “Whether the appellant has incurred disqualification to represent the estate of deceased Shakereh Khaleeli on account of he murdering her and thereby disentitled to prosecute the appeal?”
13. There is no dispute that, from the Session’s Court till the Supreme Court, all the Courts have held that the appellant, in a calculated manner got access to Shakereh Khaleeli to grab her properties, gained her trust and married her…..administered Shakereh Khaleeli the high doze sedatives laced tea, when she fell fast asleep, stuffed her into that wooden box and buried that box in the pit got dug by him and leveled the land, thus killed her when she was just forty.
Cases relied on: Girimallappa Channappa Somsagar vs Kenchava Sane Yellappa Hosmani (1921 Indian Cases Vol.LXIL, 294), Kenchavva Kom Sanyellapap Hosmani and another vs Girimallappa Channappa Somsagar (AIR 1924 Privy Council 209), Saroja Chandrasekar vs The Union of India Writ Petition 19942/2002 decided on 15 July 2015, Vellikannu vs. R.Singaperumal and another reported in 2005 (6) SCC 622, Vedanayaga Mudaliar v. Vedammal (ILR (1904) 27 Mad 591), Gangu vs. Chandrabhagabai (1908) 32 Bom. 275, K.Stanumurthiayya & Ors. v. K.Ramappa & Ors., AIR (29), 1942 Madras 277, Nakchhed Singh & Ors. vs. Bijai Bahadur Singh & Anr., AIR 1953 All. 759, Mata Badal Singh & Ors. vs. Bijay Bahadur Singh & Ors., AIR 1956 All. 707, Minoti vs. Sushil Mohansingh Malik & Anr., AIR 1982 Bom. 68.
24. In this case also, merely because there is no provision in the Indian Succession Act to disqualify the murderer to the estate of his own victim, it does not bar the Courts from disqualifying him from inheritance.
27. Having regard to the aforesaid facts and circumstances and judgments, even in the absence of specific provision in Indian Succession Act, for disqualification of a murderer to succeed to the estate of his own victim, this Court draws authority from the Judgment of the Privy Council in Kenchavva Kom Sanyellapap Hosmani and another vs Girimallappa Channappa Somsagar (AIR 1924 Privy Council 209)…..appellant is not entitled to succeed to the estate of Shakereh Khaleeli, whom he murdered.
31. At the cost of repetition, it is to be noted that when Bombay High Court rendered judgment in Girimallappa Channappa Somsagar’s case referred to supra and Privy Council upheld that there was no law, much less the Hindu Succession Act disqualifying the murderer to succeed to his victim’s estate.
32. The case on hand is probably the first in the legal history, where a person having an eye on the property of a wealthy woman gains access to her hatching the plan to grab her property and marries her under the Special Marriage Act and murders her in a very gruesome manner to grab her properties. Hopefully such cases may drive the concerned to amend the Indian Succession Act incorporating a Section pari metria to Sections 25 and 27 of the Hindu Succession Act.
Compiled by S. Basavaraj, Advocate, Daksha Legal. raj@dakshalegal.com
Chand Rani v. Kamal Rani, (1993) 1 SCC 519. (Constitution Bench)
Paragraph 19.It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language.
25. From an analysis of the case-law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are: (1) From the express terms of the contract; (2) from the nature of the property; and (3) from the surrounding circumstances, for example: the object of making the contract.
Facts. Wife filed criminal case under Section 498A of the Indian Penal Code, 1860. Accused denied marriage itself. Argument in High Court was that the alleged marriage was registered under the Registration of Hindu Marriages Act 1955 and the same is not valid after coming into force of the Karnataka Marriages (Registration and Miscellaneous Provisions) Act, 1976.
Relevant paragraphs: 29. Admittedly, there is no express repealing of the applicability of the registration of marriages under Section 8 of H.M.Act in Karnataka nor there is any repealing of the RHMK Rules. Section 31 of KMRM Act though speaks about overriding effect of the Act upon any other Law for the time being in force, but, it cannot be forgotten that the H.M.Act is a Central Act (No.25 of 1955).
30…….the implied repeal cannot be readily inferred and mere provision of an additional remedy by a new Act would not take away an existing remedy. Further the implied repeal of an earlier law can be inferred only where there is enactment of a later law which had the power to override the earlier law and is totally inconsistent with the earlier law and the two laws cannot stand together. The registration of just provides a provision for registration of only those marriages which have been contracted in the Karnataka State, but, it also provides for registration of marriages in such place in which the bridegroom or the bride ordinarily resides. This is clear in Rule 4(1) of RHMK Rules, whereas, Section 3 of KMRM Act confines the scope of said Act only with respect to the marriages contracted in the State on or after the appointed day. However, the said KMRM Act does not confine the registration of marriages only for Hindu marriages, but, it says that it is applicable to every marriage that are contracted in the State.
31. Therefore, the provisions for registration of marriage (in the instance case, Hindu marriage) under KMRM Act would not in any way annul or invalidate a Hindu marriage registered under H.M.Act and RHMK Rules. Since the registration of marriage under H.M.Act is confined only for registration of Hindu marriages, whereas, the KMRM Act is of a wide scope enabling the registration of every marriage contracted in the State, the registration of marriage under KMRM Act so far as Hindus are concerned can be an additional provision for registration of their marriage. As such, it would not take away the facility of registering the marriage under H.M.Act and the RHMK Rules.
32. ...it also cannot be ignored that Section 8 of KMRM Act would not invalidate the marriage merely because the said marriage is not registered under the said Act.
Relevant paragraphs. 20. The following words of Lord Denning in the matter of applying the law of precedent have become locus classicus. “Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.”“
21. It is well settled in law that a decision of the court is only an authority for what it decides and not what can logically be deduced therefrom. It cannot be quoted for a proposition that may seem to follow logically from it and such a mode of reasoning assumes that law is necessarily a logical code, whereas it must be acknowledged that law is not always logical. It is equally well settled legal position, that court should not place reliance on a decision without discussing as to how the factual situation fits in with the fact situation of the decision, on which reliance is placed. [See: ‘DELHI ADMINISTRATION (NCT OF DELHI) VS. MANOHAR LAL’, AIR 2002 SC 3088 and ‘HARYANA FINANCIAL CORPORATION VS. JAGADAMBA OIL MILLS’, (2002) 3 SCC 496]. It is well settled in law that observations of the courts are neither to be read as Euclid’s theorems nor as provisions of a statute and should not be taken out of their context. The observations must be read in the context, in which they appear to have been stated. The Judges interpret statutes and they do not interpret judgments. [See: ‘BHARAT PETROLEUM CORPORATION LTD. VS. N.R.VAIRAMANI’, (2004) 8 SCC 479].
22. The aforesaid words were referred to by Supreme Court in ‘COLLECTOR OF CENTRAL EXCISE VS. ALLURY TOBACCO PRODUCTS’, 2004 (170) E.L.T. 135 (SC) and it has been held that courts should not place reliance on the decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed and observations of the courts are neither to be read as Euclids theorems nor as provisions of statute. It has further been held that observations made by the court must be read in context in which they appear to have been stated and the judgments of the courts are not to be construed as statutes.
Relevant paragraphs. 18. In the backdrop of aforesaid relevant statutory provisions referred to supra, we may advert to well settled principles of construction of taxing statutes. It is well established rule of interpretation of taxing statutes in words of Lord Simonds that subject is not to be taxed without clear words for that purpose and that every Act of Parliament must be read according to natural construction of its words. The aforesaid principle was referred to with approval by Supreme Court in ‘MEMBER SECRETARY, ANDHRA PRADESH STATE BOARD FOR PREVENTION AND CONTROL OF WATER POLLUTION VS. ANDHRA PRADESH RAYONS LTD.’, AIR 1989 SC 611, ‘SARASWATI SUGAR MILLS VS. HARYANA STATE BOARD’, AIR 1992 SC 224, ‘INDIA CINE AGENCIES VS. COMMISSIONER OF INCOME TAX, MADRAS’, (2008) 17 SCC 385, ‘MAMTA SURGICAL COTTON INDUSTRIES, RAJASTHAN VS. ASSISTANT COMMISSIONER (ANTI EVASION), BHILWARA, RAJASTHAN’, (2014) 4 SCC 87. It is equally well settled legal position that in a taxing Act, one has to look at merely what is clearly said. There is no rule for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing has to be read in, nothing is to be implied, one can only look fairly at the language used. [See: ‘UNION OF INDIA VS. IND-SWIFT LABORATORIES LTD.’, (2011) 4 SCC 635 AND ‘BANSAL WIRE INDUSTRIES LTD. VS. STATE OF UTTAR PRADESH’, (2011) 6 SCC 545, ‘CIT VS. CALCUTTA KNITWEARS’, 2014 (6) SCC 444] [See: Principles of Statutory Interpretation, Justice G.P.Singh, 14th Edition, Page 879].
Text of Judgment. The petitioner Tarabai is present along with her son Suresh. This Habeas Corpus writ petition was filed on account of her son Suresh going missing on 20.10.2020. Subsequently, he was produced before the court on 03.11.2020. The entire development in the case after Suresh going missing discloses to us a very disturbing facet of the functioning of the police stations in this area of the State. The problem, primarily, is one of police officers not complying with the procedure prescribed under the Code of Criminal Procedure, which places a high premium on the guarantee of liberty of the individuals. In our proceedings dated 03.11.2020, we had noted that respondent no.3 in these proceedings has admitted that the petitioner Tarabai had approached him in the police station with a grievance that her son had been abducted and thereafter he was not found. The respondent no.3, at that point of time, was quite conscious that what was conveyed to him by the petitioner Tarabai constituted a cognizable offence and, therefore, he was obliged to make an entry in the Station House Diary in regard to the same and further he was required to register FIR. If the facts disclosed to him amounted to an offence taking place within the limits of his police station, then he should have proceeded with the investigation of the case and if the offence disclosed took place outside his jurisdiction, then he was obliged to transfer the FIR to the jurisdictional police station for further investigation of the case. Inspite of the same, he has overlooked the mandate of law in as much as he has not made an entry in the Station House Diary regarding the substance of the information received nor has he registered FIR which has resulted in stultifying the precious right of the petitioner and her son Suresh. When we called upon the respondent no.3 who is present before the court to account for the said infraction of the law affecting the liberty of Suresh, the learned AGA representing him submits that a lenient view may be taken for the said violation of the procedure notwithstanding the serious implications for the liberty of Suresh and she further submits that respondent no.3 is prepared to file an undertaking to do some community service to atone for the same. We permit him to do so. The respondent no.3 has now filed an undertaking which reads as under:
“I the undersigned do hereby state that, as per the direction of the Hon’ble Court, I am ready to comply with the direction issued by the Hon’ble Court by cleaning the road in front of my Police Station for one week. That I render my unconditional apology for not registering the First Information Report and assure the Hon’ble Court that I will not repeat the same in future.”
We accept the same and direct the respondent no.3 to comply with the undertaking by cleaning the road in front of his police station for a period of one week. However, this aspect of the matter requires serious consideration by the superior officers of the department. Therefore, we direct the Superintendent of Police, Kalaburagi District to hold a Workshop/ Orientation course to all the police officers working within the Kalaburagi District on the subject of “Zero FIR” vide 1) KIRTI VASHIST v. STATE AND OTHERS [ 2019 SCC OnLine Del 11713 Para 16 to 20] and 2) RHEA CHAKRABORTY V. STATE OF BIHAR AND OTHERS [2020 SCC OnLine SC 654 Para 23, 28] and the provisions under the Code of Criminal Procedure, 1973 pertaining to registration of FIR and investigation of cases
Relevant paragraphs: 41. By a careful reading of the provisions of Section 149 of IPC, it clearly depicts that every member of unlawful assembly guilty of offence committed in prosecution of common object – if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. This provision appears under the heading “offences against public tranquility” in the IPC. The present day Indian Penal Code derives its genesis from the Draft Penal Code for India commonly called the Macaulay Code. Those were the times during the middle of the 19th century when Indian opposition to the British rule was taking its baby steps. As the opposition became stronger, the British rulers felt an emergent need for devising a deterrent penalty which could contain the opposition at the nascent stage. In an attempt to do so, the concept of vicarious liability was introduced, unlike the modern day section 149, the sentence was restricted. With the passage of time, as the freedom movementgained momentum, the erstwhile British Government needed sterner punishments and deterrents to suppress the struggles with “iron hand”. The year 1857 witnessed the first organized attempt at independence – the Indian Mutiny of 1857. The startled British governance brought in section 149 exactly in the fashion as it stands in the statute book today. The provisions of Section 149 was enacted as a tool to curtail the freedom movement with an “iron hand” and has continued in the statute book since then. Though India got independence in the year 1947, still the said provision continued in the IPC even today.
42. The scrutiny of the provisions of section 149 on the touchstone of fundamental rights has become the need of the hour because of the alarming misuse of the said section by the prosecuting agencies. The Investigating Officers sometime would violate the fundamental rights guaranteed in the Constitution under Articles 14, 19 and 21 of the Constitution of India. In complete disregard of Article 21 and the promise of individual liberty, the police and prosecution are now using section 149 as a presumption of guilt of all persons who happen to be present at the spot, including those who become part of assembly oblivious to its unholy intentions or as curious onlookers. In rural India, people usually carry agricultural equipments like farsa/axe/lathis, hand sickle, shovel, spade, pickaxe, Hoe, mattock etc., with them. In any heated exchange it is not unlikely that the other residents of village are vocal about their “views” on the issue between the warring parties. In such an assembly when an offence takes place due to miscreance of one of the erring members the brunt is borne by all members of the assembly including all the onlookers who happened to carry a farsa/lathi with them and were curious enough to stop and look at what is happening. And if any of them has uttered a sentence then he is doomed for life imprisonment if ultimately an offence of murder is committed by one of the person. Over implication and subsequent arrest is rampant because of rival/ jealous/ motivated/interested parties are eager to volunteer as eye- witnesses thereby improving the “conviction rate” for the prosecution.
43. It is high time for the investigating agency to conduct proper investigation whenever the provisions of Section 149 are invoked along with the other provisions of IPC to ensure that there should not be any violation of fundamental rights guaranteed to the citizens under Articles 14, 19 and 21 of the Constitution of India and also to ensure that innocent people should not be implicated. While invoking the provisions of Section 149 of IPC, the investigating agency shall confirm after investigation as to whether such persons really committed an offence along with the other co- accused, if any. Otherwise, the rival/jealous/motivated/interested parties are eager to implicate innocent people, sometimes with the influence of local politicians also.
44. It is the bounden duty of the Court, while considering the cases arising out of the provisions of Section 307 or Section 302 r/w 149 of IPC that the Court should act as societal parents and ensure a proper analysis of the evidence on record and merely because one of the accused committed the alleged offence, the other members of the unlawful assembly should not unnecessarily be punished with imprisonment for life, without there being any contribution of other members with the common object for commission of the offence, in order to protect liberty of the citizens. Of course, such members are separately punishable for minor offences under Sections 143, 147,148,323,341 and 504 of IPC etc
49. It is also relevant to consider that the common object is necessary to invoke the provisions of Section 149 of IPC. For “common object”, it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on spur of the moment; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part of Section 149 of IPC, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. It is not the case of the prosecution that there was a common object of all the accused persons prior to the concert of meeting of the members of unlawful assembly to cause death of the deceased. It is also not the case of the prosecution that the common object formed on spur of the moment and it is adopted by all the members and is shared by all of them for the commission of the offence. Admittedly as soon as the incident occurred, the accused persons ran away. Considering the totality of the facts and circumstances of the case, thelearned Sessions Judge is not justified in convicting AccusedNos.2 to 5 under Section 302 of IPC with the aid of Section –149 of IPC and sentencing them to undergo imprisonmentfor life with fine and the same is liable to be set aside.
51.As we have already stated supra, the trial Court acquitted all the accused persons under Section 120B of IPC holding that the prosecution failed to prove the conspiracy among the accused persons to kill the deceased beyond reasonable doubt. Admittedly, the State has not filed any appeal against the acquittal of Accused No.1 to 5 for the offence punishable under Section 120B of IPC. Therefore, the impugned Judgment and Order of conviction under Section 302 read with Section 149 of IPC against the Accused Nos.2 to 5 is liable to be set aside.
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