Saturday, March 28, 2015

Govt has merged PIO, OCI cards

While addressing an interactive session on 'Passport, Visa, Emigration, OCI/PIO Cards and Foreign Remittances to India' at Grecently, M D Antani, former home secretary, said that from January 2015 government of India has merged the PIO and OCI cards which are issued to Indians possessing foreign citizenship.

He said now only OCI cards are issued. OCI cards are, however, not issued to persons residing in Pakistan and Bangladesh. OCI card holders enjoy practically all privileges except engaging in political activity and holding any constitutional position.


Hate speech: HC denies bail to Hindu Sena chief

Taking a strict view against hate-mongering in the name of religion, the Bombay High Court pointed to his hate speech while denying bail to Hindu Rashtra Sena chief Dhananjay Desai, arrested for inciting riots that led to the death of a 24 -year-old techie in Pune last year.

Mohsin Shaikh was beaten to death on the night of June 2, 2014, by a mob of 30 to 40 people, alleged to be HRS members in Hadapsar, Pune, when he was on his way home after offering the evening namaz. Police traced the rioters after they ran away leaving behind their motorbikes, which had HRS signage on them. Desai was booked for the conspiracy as he had allegedly delivered an inflammatory speech over objectionable posts on social media, which police claimed led to the rioting.


Monday, March 23, 2015

SC uphold free speech online, stikes down Section 66A of the IT Act

Supreme Court to decide validity of penal provision in IT Act today


A bench of Justices J Chelameswar and Rohinton F Nariman will deliver its judgment on a bunch of petitions filed in the light of misuse of the penal provision by government authorities against persons who allegedly uploaded offensive posts on social networking sites.

The petitioners, including NGOs, civil rights groups and a law student, had argued that Section 66A violated citizens' fundamental right to freedom of speech and expression.

The government had opposed the plea for quashing the provision saying it is meant to deter people from uploading grossly offensive material which can lead to lawlessness by inciting public anger and violence.

Justifying the retention of the provision, the Centre had told the apex court that the impact of internet is much wider and restriction on this medium should be higher in comparison to print and TV.

It had said unlike print and electronic media, internet did not operate in an institutional form and there was need for some mechanism to put checks and balances.

The government had said the provision could not be quashed just because of its potential misuse. Posting pictures and comments on social networking sites which hurt religious sentiments could not be tolerated and people must be prosecuted, it said.

Wednesday, March 18, 2015

PAWAN KUMAR @ MONU MITTAL v. STATE OF U.P. & ANR. [2015] INSC 200 (11 March 2015)


REPORTABLE 
IN THE SUPREME COURT OF INDIA 
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 2194 OF 2011 

Pawan Kumar @ Monu Mittal ... APPELLANT

V/s.

STATE OF U.P.

WITH Criminal Appeal Nos. 2195-2196 OF 2011 Rakesh Anand and Anr. ... APPELLANTS Criminal Appeal No. 2198 OF 2011 

Shiv Kesh Giri @ Lalla ... APPELLANT 
Criminal Appeal No. 2199/2011 Devesh Agnihotri ... APPELLANT 
Criminal Appeal No. 2200/2011 Rajesh Verma ... APPELLANT

N.V. RAMANA, J.

These appeals are directed against a common impugned judgment dated 11th February, 2009 of the High court of Allahabad, Lucknow Bench, by which the appeals of the appellants herein who are accused of murdering one Manjunath, were dismissed.
2. Material facts of the case as per prosecution are that the father of appellant Monu Mittal (Accused No. 1) was the owner of a petrol pump namely M/s Mittal Automobiles situated at Gola, District Lakhimpur Kheri, Uttar Pradesh. The deceased Manjunath was working as a Sales Officer with the Indian Oil Corporation (IOC) at Gola. On 13.9.2005, the deceased inspected the petrol pump of Accused No. 1 and on finding some irregularities, the sales and supplies of the petrol pump were suspended by the IOC at his instance. However, the same were restored on 19th October, 2005 after the payment of fine of Rs.75,000/- by the owner of the petrol pump. Again on 19th November, 2005, the deceased, being suspicious of malpractices still being carried on by Accused No. 1, inspected the said petrol pump.
3. On 20.11.2005, when the Head Constable (Ram Bhawan Singh) of P.S.
Mahaoli, District Sitapur, along with Constable Asha Ram (PW2) and Driver Braj Kishore was on patrol duty on the National Highway, at about 8.00 am, one Maruti Car bearing No. UP 51 E 5176 was coming from the direction of Maigalganj and upon seeing the police jeep, the Maruti Car suddenly turned back and tried to drive away from that place. On suspicion, the Maruti Car was chased and intercepted at about 8.30 am near Green Gold Dhaba. One Vivek Sharma (Appellant - Accused No. 7) was driving the car accompanied by another appellant Rakesh Kumar Anand (Appellant-Accused No.4) who was sitting on the back seat besides a blood stained dead body of S. Manjunath (deceased). On interrogation, both accused Nos. 4 & 7 confessed that the deceased was shot dead by Pawan Kumar alias Monu Mittal (Accused No.1), Devesh Agnihotri (Accused No. 2), Sanjay Awasthi (Accused No.3), Lala Giri (Accused No.5), Harish Mishra (Accused No.6) at M/S Mittal Automobiles and they were carrying the dead body of the deceased in his car, to dispose of the same at an unknown place. Both the accused Nos. 4 & 7 were taken into custody and a recovery memo (Ext. Ka-1) was prepared and a case against all the accused under Sections 147,148,149,302 and Section 201 read with Section 34, IPC, was registered on 20.11.2005.
4. Mr. P.N. Saxena, Sub-Inspector took up the investigation and in the presence of Dhan Raj Sahani (PW 3, landlord of the deceased) conducted inquest. He collected blood stained seat covers and door mats (Ext. Ka-9) from the Maruti Car besides several other belongings of the deceased, prepared site plan (Ext. Ka-8) and sent the dead body for post mortem.
Thereafter, he transferred the investigation to P.S. Gola, and Parmesh Shukla, SHO(PW21) who took up further investigation, arrested Shivkesh Giri @ Lala Giri (Accused No. 5) on 22.11.2005. He also recovered a wet blood stained cloth from behind the Petrol Pump which was allegedly used in cleaning the murder spot at the instance of Accused no 5. Three cartridges of 32 bore (Ext. Ka-16) were also recovered from behind the Petrol Pump on his pointing. Based on the confession of Lala Giri (Accused No. 5), he arrested the other accused Pawan Kumar, Sanjay Awasthi, Rajesh Verma and Harish Mishra at 6.50 p.m. near railway crossing in a car bearing number UP 31 F4629. A revolver was recovered from accused Rajesh Verma, owner of the car and a Pistol was recovered from accused Pawan Kumar (Ext Ka-17). On 23.11.2005 at 8:30 am, the IO recovered the car of accused Pawan Kumar, his blood stained pant from Punerbhoo forest, Kheri. The IO also recovered three empty cartridges from the diesel tank of the Petrol Pump on 24.11.2005 at 9:30 am on pointing of Accused No. 1 Monu Mittal. Accused No.2 - Devesh Agnihotri was also arrested on the same day at 6:00 pm by TN Tripathi, Sub-Inspector (PW 19) from Bheera and at his instance, four empty cartridges (Ext. Ka-20) fired from the revolver of accused No. 8 - Rajesh Verma were recovered from the house of one Jitendra Mishra uncle of Sanjay Awasthi (A-3).
5. After investigation, the IO submitted charge sheet, and the case was committed for trial. The trial court framed charges against all the accused u/s 147,148, 302 r/w 149, 201 and 120 B, IPC. Additional charges u/s 404 and 411 of IPC, Section 30 of the Arms Act were framed against accused No.
1 - Pawan Kumar, charges u/s 212 IPC and Sections 25/30 of the Arms Act were framed against accused No.8 - Rajesh Verma. Also charges under Section 411, IPC were framed against accused No.7 - Vivek Sharma and Accused No. 4 - Rakesh Kumar Anand.
6. The Trial Court convicted and sentenced the accused No.1 - Pawan Kumar @ Monu Mittal to death for offences u/s 302 r/w 149, IPC and to pay a fine of Rs 10,000/-, in default to undergo simple imprisonment (SI) for one year. He was also sentenced to 2 years RI and to pay a fine of Rs. 5000/-, in default 3 months SI for the offence u/s 404, IPC and 6 months imprisonment u/s 30 of the Arms Act, 2 years RI and to pay a fine of Rs 5000/- u/s 404, IPC and in default to undergo 3 months S.I. The other accused, namely accused No.2 - Devesh Agnihotri, accused No.3 - Sanjay Awasthi, accused No. 4 - Rakesh Kumar Anand, accused No. 5 - Shivkesh Giri @ Lalla Giri, accused No. 6 - Harish Mishra, accused No. 7 - Vivek Sharma and accused No. 8 - Rajesh Verma were also convicted u/s 302 r/w Section 149, IPC and sentenced to suffer life imprisonment. They were further sentenced to suffer one year RI u/s 148, 5 years RI u/s 201, IPC, 5 years RI u/s 120 B IPC. Accused No.8 - Rajesh Verma was also convicted u/s 212, IPC and sentenced to 3 years RI and to pay a fine of Rs 5,000/-, in default to undergo 6 months SI u/s 25 of the Arms Act and sentenced to 1 year RI and to pay a fine of Rs 1,000/-, in default to suffer SI for 3 months and 6 months RI u/s 30 of the Arms Act. Accused Rakesh Anand, Vivek Sharma and Pawan Kumar were also sentenced to 2 years RI u/s 411 IPC. All the sentences were, however, directed to run concurrently.
7. Aggrieved thereby, the accused-appellants preferred appeals before the High Court. The High Court by the impugned judgment dated 11.12.2009 partly allowed the appeal of Pawan Kumar (Accused No. 1) and modified his death sentence to life imprisonment u/s 302 r/w 149 but upheld the convictions for the other offences they are charged with. The appeals of the accused Devesh Agnihotri (A-2), Rakesh Anand (A-4), Shivkesh Giri @ Lalla Giri (A-5), Vivek Sharma (A-7) and Rajesh Verma (A-8) were, however, dismissed by the High Court. The appeals of other co-accused Harish Mishra (A-6) and Sanjay Awasthi (A-3) were allowed giving them benefit of doubt and acquitted them of all charges. Against the said judgment passed by the High Court, Accused Nos. 1, 2, 4, 5, 7 & 8 filed the present appeals before this Court.
8. Learned Counsel appearing for the appellants argued that the Courts below have committed a grave error in convicting and sentencing the appellants on the very evidence by which it acquitted the co-accused Harish Mishra and Sanjay Awasthi of all the charges. The High Court relied solely on the confessional statements of the accused/appellants made to the police which is inadmissible in evidence under Section 25 of the Indian Evidence State of Bihar[1965] INSC 125; , (1966) 1 SCR 134, learned counsel submitted that "a confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when the accused was free and not in police custody, as also a confession made before any investigation has begun". Unfortunately, the High Court has not considered Section 25 of the Evidence Act in its true spirit and erred in holding that the confessional statement of accused given to the police officer is admissible, because the same was not made to the Investigating Officer but to some other police officer. Taking support from 338, learned counsel submitted that the confession made to any member of the police, of whatever rank and at whatever time, is inadmissible in evidence as per Section 25 of the Evidence Act.
9. The learned counsel further submitted that the impugned judgement is based only on conjectures and surmises and not on any cogent and reliable evidence. There were no eyewitness to the occurrence and the case of prosecution is based solely on the circumstantial evidence. The prosecution has completely failed to prove the chain of events linking the accused appellants to the commission of offence. There is no direct witness or incriminating evidence against the appellants to establish the motive of the accused to kill the deceased. The courts below have ignored the fact that neither the Ballistic Report (Ext. 61) nor the Serological Reports (Exts. Ka-60, 62, 62A) support the case of prosecution. In the ballistic report, no special characteristics were found and no conclusive opinion was given that the shots were fired from the gun of the accused. The Ballistic Expert (Ext. Ka-61) clearly mentioned in the report that "the individual characteristics are absent" for giving a definite opinion. In the absence of a firm expert opinion, it cannot be conclusively held that the bullets recovered from near and around the scene of offence were fired from the gun of accused No .1 Pawan Kumar.
10. It is the contention of the learned counsel that according to the Serological Report (Ext. Ka-60), no blood was found on the cloth recovered from behind the petrol pump which was allegedly used to clean the site of crime as also the pant of the accused No. 1 (Exts. Ka-62 & 62A) Pawan Kumar allegedly recovered from his car. Another crucial loophole that is evident from the prosecution story is that the body of the deceased was stained with blood, but no blood stains were reported to be found on the clothes of accused No. 7 - Vivek Sharma and accused No. 4 - Rakesh Kumar Anand who were allegedly carrying the dead body of the deceased in his car to dispose of the same. Also another dubious circumstance sought to be proved by the prosecution is that when the car in which accused No.7 - Vivek Sharma and accused No.4 - Rakesh Kumar Anand, were carrying the dead body of the deceased was intercepted, P.W.3 - Dhanraj Sahni, landlord of the deceased appeared from the crowd and recognized the dead body. Learned counsel submitted that the landlord was living far away from the site where the accused were apprehended, and no reason is given by the prosecution for his presence at the spot where the car carrying the dead body of the deceased was intercepted. This casts a doubt on the prosecution story about the presence of the landlord at that point of time.
11. The learned counsel strenuously contends that another aspect that probablises the factum of manipulation of the case by the prosecution to implicate the appellants into the crime is that according to the prosecution case, in all, eleven bullets were fired at the deceased, but according to the post-mortem report (Ext. Ka-14), the deceased had suffered six firearm injuries, out of which there were two exit wounds on his body and four bullets were recovered from his body. There was no explanation coming forward from the prosecution as regards not finding the other bullets. It is not possible to imagine that other seven bullets did not hit anywhere at the place of incident. This fact clearly establishes that the prosecution manipulated the investigation. The prosecution thus totally failed to prove the place of occurrence and the recoveries alleged to have been made from the scene of offence were planted for the purpose of the case.
12. Learned counsel further submitted that the Courts below have utterly failed to take into account the important material contradictions before convicting the appellants. PW 21 - Parmesh Kumar Shukla, SHO was said to have taken control of the case on the evening of 20th November, 2005 and he came to know about the place of incident only on 21st November, 2005 seems improbable. The same stood fortified by the fact that as per Rojanama (GD No. 38 dated 21-11-2005) he had visited the alleged place of occurrence i.e. petrol pump on 21.11.2005. Whereas in his deposition before the Trial Court he denied to have gone there on 21-11-2005 and he further stated that he went to the place of occurrence for the first time only on 22-11-2005 in the afternoon. It is, therefore, clear that the investigations are tainted, vital and material portion has been deliberately concealed. The deposition of PW 21 visiting the place of occurrence on 22-11-2005 ought to have been rejected by the Courts below. Once a material portion of the evidence of I.O. is found to be false, no reliance could be placed on his statement.
Such material contradictions would not only cast a doubt on his evidence, but discredits the entire case of prosecution. Another discrepancy in the prosecution story pointed out by the learned counsel is that as per prosecution, accused No.5- Lalla Giri was arrested by PW 21 on 22-11- 2005 from Railway Station, whereas on 21-11-2005 at about 3.15 p.m. mother of Lalla Giri (A-5) had sent a telegram (Ext. Kha-2) to the DIG, Lucknow complaining therein that her son has been wrongfully confined by the PS Gola since 20-11-2005. This uncontroverted fact belies his arrest and thus the recoveries allegedly made at his instance cannot be relied upon.
13. Learned counsel further contended that the Courts below have wrongly attributed the motive for the crime inasmuch as M/S Mittal Automobiles was sealed by the deceased owing to alleged malpractices. It is admitted fact that apart from Mittal Automobiles one more petrol pump L.D Service Station was inspected by the deceased on the same day and samples taken were found to be adulterated, but no investigation was carried out in this regard. In fact, no adulteration was detected from the samples collected from M/S Mittal Automobiles. As a matter of fact, Weights and Measurement Department conducted test of HSD (1150 ltrs.) from June, 2005 to 13.9.2005.
Though the entries were made in the Daily Stock Register of M/S Mittal Automobiles, no corresponding entry was made in the main stock register which resulted in stock variation which led to the sealing of the petrol pump. When M/S Mittal Automobiles clarified the same by reply dated 18-10- 2005, the petrol pump was restored. The fine of Rs.75,000/- was paid in respect of technical defaults in order to ensure that the supply is restored. Hence, the motive part advanced by the prosecution is not proved and the Courts below have erred in not appreciating this fact.
14. Learned counsel appearing for Accused No. 2 - Devesh Agnihotri submitted that the appellant was wrongly implicated in the crime. The appellant has no previous association with the prime accused Monu Mittal.
The appellant-accused No. 2 was not even present at the scene of crime at the relevant time as he was attending marriage of his brother in law in District Etah which is far away from the place of occurrence. Moreover, there is no incriminating evidence against accused No. 2.
15. On behalf of Accused No. 5-Lalla Giri it is specifically argued that he has been wrongly convicted by the Trial Court merely because he was an ex-employee of Pawan Kumar @ Monu Mittal (Accused No.1). Mere recovery of empty cartridges at the instance of this appellant-accused is of no consequence when there is no evidence linking his participation in the crime. Moreover, the recovery of empty cartridges at the place of occurrence itself is highly doubtful as they can easily be destroyed. In support of the argument that in the absence of any link evidence, the appellant cannot be convicted under Section 302, IPC learned counsel relied argued that at the most the case against the appellant cannot be beyond Section 201, IPC for which the maximum sentence is 10 years. The appellant has already undergone about 9 years imprisonment.
16. Learned counsel appearing for Accused No.4- Rakesh Anand and Accused No.7- Vivek Sharma submitted that the prosecution has failed to complete the chain of events qua Accused Nos. 4 and 7 to bring home their culpability. Both the courts below have gravely erred in holding that the dead body of the deceased was recovered from the possession of these appellants on 20.11.20005 at 8.00 am. As per prosecution, at the time of their arrest, the dead body of the deceased was bleeding, but admittedly no blood was found on their clothes. No weapon, driving licence, money etc.
were found from their possession. No relation between these two accused and other accused has been proved. Moreover, there was no examination of any independent witness to support the story of prosecution that the dead body of the deceased was recovered from the possession of these two accused.
Allegedly, there was a mob of about 100 to 150 people at that point of time, but no independent witness has been examined to prove the prosecution story, and in the absence of any independent witness being examined, the confession statement and consequent recovery, cannot be believed. Learned counsel therefore submitted that it is in the interest of justice, the appeals be allowed, as otherwise, the appellants would suffer irreparable injustice, loss and injury.
17. Learned counsel appearing on behalf of Accused No. 8 -Rajesh Verma argued that the appellant was merely an employee of an Urban Co- operative Bank and had no previous enmity or motive to kill the deceased as he had no interests in the business of Petrol Pump. His name neither figured in the confessional statement of the accused nor in the F.I.R. According to the prosecution, the licensed revolver of Accused No. 8 was recovered on 22-11- 2005, but it was not even sealed at the spot despite the I.O. having specific knowledge about its use. There was no specific evidence to establish the date, time and place of it being sealed. Only the oral assertion of I.O. that the weapon was sealed a couple of days later by him, shows the possibility of revolver or bullet being changed, thereby wrongly implicating the accused in the crime. There was also no evidence of conspiracy against this appellant nor was any evidence to establish the intention, knowledge or prior meeting of the appellant with the other accused to commit the crime. The I.O. in the cross examination admitted that the appellant neither used his revolver nor was present at the time of occurrence. There is also no absolute evidence of appellant giving his revolver to the prime accused. The appellant was an active worker of a political party and his political rivals being inimical towards him he was falsely implicated, but the Courts below have failed to take into consideration this aspect.
18. Learned counsel appearing for all the accused-appellants strongly contended that the Courts below have committed grave error in convicting and sentencing the accused. The impugned judgment is not based on the true principles of law. It is not only gravely erroneous, but also against the material available on record. The alleged circumstances do not form a complete chain of events linking the accused to the commission of the crime, and the incriminating circumstances having not been proved by the prosecution, in accordance with law, the impugned judgment is, liable to be set aside.
19. Mr. Gaurav Bhatia, learned Additional Advocate General appearing for the State, on the other hand, supported the impugned judgment and submitted that this is an unfortunate case where an Officer of the Indian Oil Corporation was brutally murdered by the accused for honestly carrying out his duties. This incident has shocked the entire nation and has shaken the confidence of thousands of aspiring officers. He submitted that Accused No. 1 Pawan Kumar @ Monu Mittal had developed grudge against the deceased because he inspected the petrol pump run by him on 13.9.2005 and pointed out certain irregularities, and on his intimation to IOC (Ext. Ka-34), the sales and supplies of the pump were suspended. The supplies were, however, restored only after payment of fine on 19th October, 2005. The deceased again visited the petrol pump of the accused on 19th November, 2005 for inspection and thereafter he was not seen alive.
20. The learned AAG, on behalf of the prosecution, submitted that the incriminating articles including empty cartridges (Ext. 13) fired from the licensed pistol of Accused No. 1, blood stained earth (Ext. Ka 60) recovered from the petrol pump of Accused No. 1 and on his pointing out, the mobile instrument of the deceased was recovered from the forest (Ext.
Ka 21). The Ballistic Expert in his report clearly mentioned that the bullets found in the body of the deceased were fired from the licensed pistol of Accused No. 1. The irregularities committed by the petrol pump were writ large inasmuch as certain important documents and other materials which were necessarily required to be kept in the show room were not found, when the police along with IOC official and official of Weights and Measurements Department inspected. Moreover, some articles used for tampering of the seals of the machines and tank were found.
21. Learned AAG contended that the involvement of accused Rakesh Anand (Accused No.4) and Vivek Sharma (Accused No.7) has been proved beyond all reasonable doubt as they were caught by patrolling police officials PW1- Head Constable Ram Bhawan, PW2 - Constable Asha Ram while they were carrying the dead body of the deceased in his car. This fact is corroborated by the independent witness Dhanraj Sahni-PW3, the landlord of the deceased. Accused No. 2 - Devesh Agnihotri's involvement is evident from the confession of the co-accused, namely accused No.7 - Vivek Sharma and accused No.4 - Rakesh Kumar Anand and also by accused No.8 - Rajesh Verma, who confessed that his revolver was used by accused No. 2 - Devesh Agnihotri for the commission of crime. After his arrest, he confessed to the commission of the crime and also led to the recovery of four empty cartridges shot from the revolver of accused No. 8 - Rajesh Verma. Also accused No.2 - Devesh Agnihotri along with accused No.4 - Rakesh Kumar Anand were earlier charge sheeted for an offence u/s 307 IPC in 1998 which is sufficient to establish their nexus. Accused No.5 - Lalla Giri's involvement came to light from the confession made by accused No.7 - Vivek Sharma (A-7) and accused No.4 - Rakesh Kumar Anand, at whose instance accused No.5 - Lalla Giri was arrested on 22.11.2005, from the Railway Station while he was trying to abscond. Accused No.5 - Lalla Giri, led to the recovery of three cartridges from behind the petrol pump and three more from the tank of the petrol pump. This clearly explains that accused No.5 - Lalla Giri, has played an active role in the conspiracy in and commission of the crime. Accused No.8 - Rajesh Verma was arrested along with Accused No. 1 - Pawan Kumar and other accused when he was taking them in his car on 22.11.2005 and a revolver with two live and four missing cartridges were recovered from his possession. Those four cartridges were recovered at the instance of accused No.2 - Devesh Agnihotri. Thus, in the light of confessional statements of the accused and the recoveries made at their instance, their involvement in the crime is established by the prosecution beyond all reasonable doubt. Therefore, no interference is warranted with the concurrent findings of fact arrived at by the Trial Court as well as the High Court, upon appreciation of entire evidence on record.
22. Learned AAG, placing reliance on Dalbir Kaur v. State of Punjab [1976] INSC 184(1976) 4 SCC 158 and Shivnarayan Laxminarayan Joshi v. State of Maharashtra (1980) 2 SCC 465finally submitted that when the cumulative effect of the evidence against the accused persons is sufficiently convincing for the trial court as well as the High Court to have come to the conclusion that the offence with which the accused were charged were established against them beyond all reasonable doubt, unless there is substantial question of law involved, this Court should refrain from interfering with the concurrent findings of fact given by the Courts below.
23. We have heard learned counsel for the parties at length and carefully perused the material on record.
24. The contention of the learned Additional Advocate General for the State that in view of the concurrent findings on facts recorded by the trial Court and confirmed by the High Court, this Court should not interfere with such findings, unless there is substantial question of law involved. Before dealing with the above contention, it is appropriate to refer to the judgments in Dalbir Kaur v. State of Punjab [1976] INSC 184(1976) 4 SCC 158 and Shivnarayan Laxminarayan Joshi v. State of Maharashtra (1980) 2 SCC 465, wherein this Court laid down the guidelines.
In Dalbir Kaur (supra) it was held as under:
"8. Thus the principles governing interference by this Court in a criminal appeal by special leave may be summarised as follows:
(1) that this Court would not interfere with the concurrent finding of fact based on pure appreciation of evidence even if it were to take a different view on the evidence;
(2) that the Court will not normally enter into a reappraisement or review of the evidence, unless the assessment of the High Court is vitiated by an error of law or procedure or is based on error of record, misreading of evidence or is inconsistent with the evidence, for instance, where the ocular evidence is totally inconsistent with the medical evidence and so on;
(3) that the Court would not enter into credibility of the evidence with a view to substitute its own opinion for that of the High Court;
(4) that the Court would interfere where the High Court has arrived at a finding of fact in disregard of a judicial process, principles of natural justice or a fair hearing or has acted in violation of a mandatory provision of law or procedure resulting in serious prejudice or injustice to the accused;
(5) this Court might also interfere where on the proved facts wrong inferences of law have been drawn or where the conclusions of the High Court are manifestly perverse and based on no evidence.
It is very difficult to lay down a rule of universal application, but the principles mentioned above and those adumbrated in the authorities of this Court cited supra provide sufficient guidelines for this Court to decide criminal appeals by special leave. Thus in a criminal appeal by special leave, this Court at the hearing examines the evidence and the judgment of the High Court with the limited purpose of determining whether or not the High Court has followed the principles enunciated above. Where the Court finds that the High Court has committed no violation of the various principles laid down by this Court and has made a correct approach and has not ignored or overlooked striking features in the evidence which demolish the prosecution case, the findings of fact arrived at by the High Court on an appreciation of the evidence in the circumstances of the case would not be disturbed.
9. Much time, energy and expense could be saved if the principles enunciated above are strictly adhered to by counsel for the parties and they confine their arguments within the four corners of those principles and they cooperate in this sound and subtle judicial method without transgressing the limits imposed by the decisions of this Court on its power to interfere with the concurrent findings of fact."
In Shivnarayan Laxminarayan Joshi (supra), it was held as under:
"...On a perusal of the record and judgment of the High Court we are clearly of the opinion that these appeals are concluded by findings of facts. It is well settled that this Court in special leave will not interfere with concurrent findings of facts unless the findings are vitiated by a grave error of law or by an error which leads to serious and substantial miscarriage of justice. After a perusal of the judgment of the courts below we find ourselves in complete agreement with the view taken by the High Court and are unable to find any special circumstances which require our interference with the order passed by the High Court."
Therefore, what has to be appreciated in these appeals is whether any findings are vitiated by grave error of law or by an error which leads to serious and substantial miscarriage of justice, warranting interference of this Court.
25. Coming to the facts of this case, there are no direct eye-witnesses to the incident. The entire case of the prosecution is based on the circumstantial evidence. The FIR came to be registered, based on the confessional statement of accused No.7 - Vivek Sharma and accused No.4 - Rakesh Kumar Anand, made to the Head Constable - Ram Bhawan Singh - PW1.
They confessed before P.W.1 about the commission of the crime and involvement of the other accused, when he along with another police constable intercepted the car, while they were transporting the dead body of the deceased to dispose it of. Based on the confession statement made by them about the commission of the crime and involvement of other accused, the accused were arrested and recoveries were made at their instance. The contention that is put forth on behalf of the appellants is that the confession made to the police is not admissible in evidence, as per Section 25 of the Evidence Act. It is settled principle of law that statements made by an accused before police official which amount to confession is barred under Section 25 of the Indian Evidence Act. This prohibition is, however, lifted to some extent by Section 27 which reads thus:
27. How much of information received from accused may be proved.-Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
26. In the light of Section 27 of the Evidence Act, whatever information given by the accused in consequence of which a fact is discovered only would be admissible in the evidence, whether such information amounts to confession or not. The basic idea embedded under Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee [pic]that the information supplied by the prisoner is true.
The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information [See:
27. The "fact discovered" as envisaged under Section 27 of the Evidence Act embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.
28. In the present case, Accused Nos. 4 & 7 disclosed the names of their co-accused at whose instance various incriminating materials including pistols, cartridges, bullets, blood stained articles were recovered. Simply denying their role without proper explanation as to the knowledge about those incriminating material would justify the presumption drawn by the Courts below to the involvement of the accused in the crime. The confession given by the accused is not the basis for the courts below to convict the accused, but it is only a source of information to put the criminal law into motion. Hence, the accused cannot take shelter under Section 25 of the Evidence Act.
29. The next contention of the appellants is that the prosecution could not prove the motive of the accused for the commission of the offence. We feel that the motive behind the brutal murder of the deceased as brought forward by the prosecution is trustworthy in the light of material available on record. Considering the evidence on record, there is no doubt in our mind that the deceased-Manjunath had inspected M/S Mittal Automobiles on 13.9.2005 and on finding irregularities, he had reported the same to the IOC and at his instance, the sales and supplies to the Pump of accused No.1 were suspended [Ex Ka-34]. The IOC thereafter issued a show cause notice to the father of Accused No.1. In reply, his father had admitted that the pump was being managed by his son Pawan Kumar Mittal (Exts. 29 & 30). The record shows that accused No.1 was made to pay a fine of Rs 50000/- vide DD No.083226, dated 17.10.2005 and another Rs 25000/- vide DD no. 083227, dated 17.10.2005 [Exts. Ka 29-30]. Though, the sales and supplies were resumed on 19-10-2005, the deceased had again inspected the pump on 19.11.2005, a day before he was found dead. Suspecting that the deceased would again give report to IOC alleging irregularities in the supplies, in which event, he would either be called upon to pay fine or may render his licence suspended, accused No.1 bore grudge and with the assistance of other accused, murdered the deceased. The fact that on the fateful day, the deceased visited the petrol bunk of accused No.1, where he was brutally murdered, is evident from the evidence of PW 4 - Ashok Kumar Agarwal, Manager of M/S Agrawal Brothers Petrol Pump, who in his evidence deposed that the Accused No. 1 was inquiring about the location and movement of the deceased prior to the alleged incident on 19th November, 2005. P.W.5 - Anurag Agarwal of M/s. Agarwal Brothers and P.W.8 - Ramesh Chandra Pandey, Manager of M/s. Alankar Hotel, also deposed that the deceased was in Gola on the day of incident. P.W.5 also deposed that the deceased left for M/s.
Mittal Automobiles from his pump at 9.30 pm. P.W.17 - R.K. Justi, the immediate senior officer of the deceased deposed that the deceased had gone to M/s. Mittal Automobiles for inspection on 19.11.2005. He further deposed that in his presence, three cartridges were recovered from the tank of M/s.
Mittal Automobiles. This evidence clearly shows that on the fateful day, the deceased went to M/s. Mittal Automobiles, and thereafter, he was found dead. Considering the fact that at the instance of the deceased, IOC imposed fine on accused No.1 for the irregularities found in the dispensation of fuel, which lead to his paying up fine, there is every possibility of accused No.1 bearing grudge against the deceased, when the deceased visited his bunk on 19.11.2005, suspecting that the deceased would again inspect the bunk and report the irregularities, in which event he may end up either paying fine or it will result in his licence being cancelled, accused No.1 with the assistance of other accused, had conspired to do away with the deceased, and accordingly killed him.
30. We are in full agreement with the Courts below that the accused conspired to commit the offence of murder of the deceased. The nexus between the accused to do away with the deceased, has been established by the prosecution beyond all reasonable doubt. Accused No.1- Pawan Kumar @ Monu Mittal, being the owner/in-charge of pump where the incident took place, is an interested party in the crime to do away with the deceased, because at his instance, the supplies were suspended and only upon paying fine, the supplies were restored. Accused No.4 - Rakesh Anand and Accused No.7 - Vivek Sharma, were caught by P.W.1 - Head Constable and another police constable, while they were trying to dispose of the dead body of the deceased in his own car. They confessed about the involvement of accused No.5 - Lalla Giri. Lalla Giri (A-5) is an ex-employee of Pawan Kumar (A- 1), and at his instance, three bullets were recovered from the petrol pump, which proves his presence at the spot and the time of occurrence. Accused no.2 - Devesh Agnihotri's involvement is ascertained by the fact that he had led to the recovery of four cartridges from the house of maternal uncle of Sanjay Awasthi. Devesh Agnihotri (A-2) was earlier tried for a case under Section 307 IPC along with Accused no.4 - Rakesh Anand, which proves his previous association with the conspirators, though cannot be a basis for the conviction. At the instance of Accused No. 2 - Devesh Agnihotri, Accused No.8 - Rajesh Verma was arrested with Accused No. 1 - Monu Mittal, while he was taking him in his own car, which proves his association with the main accused. At the time of his arrest, a revolver with two live cartridges was recovered. A rifle (Ext. Ka-18) belonging to Accused No.1 - Pawan Kumar @ Monu Mittal, was also recovered from the house of Accused No.8 - Rajesh Verma. Thus the nexus between the accused as well as their participation in the crime is well established beyond reasonable doubt and we find nothing on record to suggest that the accused were unnecessarily implicated by the police.
31. There is also no doubt in our mind as regards the place of incident.
An effort has been made by the learned counsel appearing for the accused to raise doubts over the same on the ground that the number of bullets used in the crime is not proportionate to the number of bullets hitting the deceased. It came on record in the evidence of PW-5 - Anurag Agrawal of M/s Aggarwal Brothers Petrol Pump that the deceased had informed him at 9.30 p.m. on 19.11.2005 that from there he was going to M/S Mittal Automobiles, to take his measuring instruments which he had forgotten there. The recovery of bullets from the tank of M/S Mittal Automobiles and from behind their petrol pump along with blood stained cloth cumulatively establish the place of incident to be M/S Mittal Automobiles. In every case of gun firing, it is not required that each and every bullet should hit the target. There may be attempts by the deceased or the victim to save himself from the raining bullets, and in which case, the bullets may not hit the target. Merely because all the bullets fired from the gun did not hit the target and were not recovered from the scene of offence, is no ground to conclude that the incident did not take place.
32. As regards the allegation of contradictions in the statements of prosecution witnesses, we do not find any major contradictions which require our attention and consideration. When a witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. But Courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the M.P., (1999) 8 SCC 649]. There is no doubt that when two views are possible, the one which favours the accused should be taken and the accused should be acquitted by giving the benefit of doubt. But in the instant case, the evidence on record is trustworthy and consistent, and there is only one view, which points to the guilt of the accused. Though the learned counsel for the appellants sought to point out minor discrepancies in the evidence of the witnesses, but in the light of the above judgment of the court, we are of the considered opinion that such minor discrepancies should not come in the way of the other strong circumstantial evidence, cumulatively taken together, forms a complete chain of events, pointing towards the guilt of the accused in the commission of the crime.
33. In cases where the direct evidence is scarce, the burden of proving the case of prosecution is bestowed upon motive and circumstantial evidence. It is the chain of events that acquires prime importance in such cases. Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can SCC 45]. In the case on hand, the evidence adduced by the prosecution as discussed above, clearly proves the chain of events connecting the accused to the guilt of the commission of the offence. The entire evidence brought on record by the prosecution, is not only convincing, but is also trustworthy. Even if the confession of accused Nos. 4 and 7 made before PW 1 and PW 2, which is barred by Section 25 of the Evidence Act, is not taken into account, the other evidence on record adduced by the prosecution, is sufficient to hold the accused guilty of the offence.
34. This Court has been consistently taking the view that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. In the present case, on scrutiny of evidence on record, we are convinced that the prosecution had established beyond reasonable doubt the complete chain of events which points at the guilt of the accused.
35. Thus, in the light of above circumstances coupled with the complete chain of events, this Court has no manner of doubt to hold that the prosecution has succeeded in proving its case against the accused beyond all reasonable doubt.
36. Taking the entire case in its totality, we do not find any merit in these appeals requiring our interference. Resultantly, the appeals fail and are dismissed.
......................................................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
 ......................................................J.

UNION OF INDIA & ORS. v. MAJOR GENERAL SHRI KANT SHARMA & ANR. [2015] INSC 201 (11 March 2015)


REPORTABLE 
IN THE SUPREME COURT OF INDIA 
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7400 OF 2013 

UNION OF INDIA & ORS. ... APPELLANTS 

VERSUS 

MAJOR GENERAL SHRI KANT SHARMA

WITH CIVIL APPEAL NO.7338 OF 2013, CIVIL APPEAL NOS.7375-7376 OF 2013, CIVIL APPEAL NO.7399 OF 2013, CIVIL APPEAL NO.9388 OF 2013, CIVIL APPEAL NO.9389 OF 2013 AND CIVIL APPEAL NO.96 OF 2014.


SUDHANSU JYOTI MUKHOPADHAYA, J 

In these appeals the question raised is whether the right of appeal under Section 30 of the Armed Forces Tribunal Act, 2007 (hereinafter referred to as the 'ct'), against an order of Armed Forces Tribunal (hereinafter referred to as the 'Tribunal') with the leave of the Tribunal under Section 31 of the Act or leave granted by the Supreme Court, or bar of leave to appeal before the Supreme Court under Article 136(2) of the Constitution of India, will bar the jurisdiction of the High Court under Article 226 of the Constitution of India regarding matters related to Armed Forces.
Union of India and others are the appellants in all these appeals except in C.A.No.7338, C.A.No. 7399 of 2013 and C.A.No.96/2014 wherein they are the respondents. The respondents in all these appeals except the three mentioned above are-Army Personnel who moved before the Tribunal for adjudication or trial of disputes and complaints with respect to condition of service. Having not granted relief, the Army personnel assailed the order passed by the Tribunal before the respective High Courts under Article 226 of the Constitution. The appellant in C.A.No.7338 of 2013 on being aggrieved by the order passed by the Armed Forces Tribunal, Regional Bench, Chennai challenged the same before the High Court of Judicature of Andhra Pradesh at Hyderabad. In the cases in hand except C.A.No.7338 of 2013 and C.A.No.96 of 2014 the High Court entertained the writ petitions and adjudicated the disputes. The High Court having granted relief after reversing the order of Tribunal, the Union of India has challenged the same. In C.A.No.7338 of 2013 and C.A.No.96 of 2014, the appellants-Army Personnel have challenged the orders by which High Courts refused to entertain their writ petitions. In C.A. No. 7399 of 2013, the appellant- Army Personnel has challenged the order of Delhi High Court allowing the writ petition of respondent No.2 therein.
2. At the outset, in all the writ petitions preliminary objection was raised on behalf of the Union of India as to the maintainability of the writ petition on the ground that against the orders impugned a remedy of appeal to the Supreme Court is provided under Section 30 of the Armed Forces Tribunal Act, 2007.
3. Learned counsel appearing on behalf of the Union of India submitted that the High Court cannot entertain writ petitions under Article 226 of the Constitution of India contrary to the law enacted by the Parliament being the Armed Forces Tribunal, 2007 which is a special enactment exclusively provided for an appellate remedy by way of leave before this Court.
Further, according to learned counsel for the Union of India as none of the respondents raised any issue of jurisdiction of the Tribunal and it was essentially a challenge to the order of the Armed Forces Tribunal only on merits. Therefore, the High Court was not correct in entertaining the writ petitions under Article 226 of the Constitution against the well considered and reasoned order passed by the Tribunal.
4. Col. A.D. Nargolkar appeared in person made the following submissions:
(i) The power of judicial review under Article 226 and 227 of the Constitution is an inviolable part of its basic structures. This power cannot be ousted by an Act of Parliament i.e. the Armed Forces Tribunal Act, 2007.
(ii) Section 14 of the Act itself provides for judicial review by the High Court under Article 226 and 227 of the Constitution. There exists clear and recorded legislative intent behind the specific provisions.
(iii) Article 227(4) of the Constitution does not exclude the jurisdiction of the High Court over the Armed Forces Tribunal as no such Tribunal existed when Article 227(4) of the Constitution was substituted.
Similar submissions were made by the learned Senior Counsel for the respondent-Army Personnel.
5. For the determination of the present issue it is necessary to refer the relevant provisions of the Armed Forces Tribunal Act, 2007, the power of the High Court under Sections 226 and 227 of the Constitution, and the power of Supreme Court under Articles 32 and 136 of the Constitution.
6. The Armed Forces Tribunal Act, 2007 has been enacted to provide for adjudication or trial by Armed Forces Tribunal of disputes and complaints with respect to commission, appointments, enrolment and conditions of service in respect of persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force At, 1950 and also to provide for appeals arising out of orders, findings or sentences of Courts-Martial held under the said Acts and for matters connected therewith or incidental thereto.
7. As per Section 14 of the Act, the Armed Forces Tribunal has been established by the Central Government to exercise the jurisdiction, powers and authority conferred on it by the said Act. Section 14 specifies the jurisdiction, powers and authority of the Tribunal in relation to service matters as follows:
"Section 14. Jurisdiction, powers and authority in service matters.- (1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority, exercisable immediately before that day by all courts (except the Supreme Court or a High Court exercising jurisdiction under articles 226 and 227 of the Constitution) in relation to all service matters.
(2) Subject to the other provisions of this Act, a person aggrieved by an order pertaining to any service matter may make an application to the Tribunal in such form and accompanied by such documents or other evidence and on payment of such fee as may be prescribed.
(3) On receipt of an application relating to service matters, the Tribunal shall, if satisfied after due inquiry, as it may deem necessary, that it is fit for adjudication by it, admit such application; but where the Tribunal is not so satisfied, it may dismiss the application after recording its reasons in writing.
(4) For the purpose of adjudicating an application, the Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, (5 of 1908) while trying a suit in respect of the following matters, namely- summoning and enforcing the attendance of any person and examining him on oath;
requiring the discovery and production of documents;
receiving evidence on affidavits;
subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872, (1 of 1872) requisitioning any public record or document or copy of such record or document from any office;
issuing commissions for the examination of witnesses or documents;
reviewing its decisions;
dismissing an application for default or deciding it exparte;
setting aside any order of dismissal of any application for default or any order passed by it exparte; and any other matter which may be prescribed by the Central Government.
(5) The Tribunal shall decide both questions of law and facts that may be raised before it."
It is clear that in relation to service matters the Tribunal has been empowered to exercise the jurisdiction, powers and authority, exercisable by all the Courts except the power of Supreme Court or a High Court exercising jurisdiction under Section 226 and 227 of the Constitution.
8. Section 15 specifies the jurisdiction, powers and authority to be exercised by the Tribunal relating to matters of appeal against the Court- Martial. The said Section reads as fellows:
"Section 15. Jurisdiction, powers and authority in matters of appeal against court-martial.-(1) Save as otherwise expressly provided in this Act, the Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable under this Act in relation to appeal against any order, decision, finding or sentence passed by a court martial or any matter connected therewith or incidental therto.
(2) Any person aggrieved by an order, decision, finding or sentence passed by a court martial may prefer an appeal in such form, manner and within such time as may be prescribed.
(3) The Tribunal shall have power to grant bail to any person accused of an offence and in military custody, with or without any conditions which it considers necessary:
Provided that no accused person shall be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life.
(4) The Tribunal shall allow an appeal against conviction by a court martial where - the finding of the court martial is legally not sustainable due to any reason whatsoever; or the finding involves wrong decision on a question of law; or there was a material irregularity in the course of the trial resulting in miscarriage of justice, but, in any other case, may dismiss the appeal where the Tribunal considers that no miscarriage of justice is likely to be caused or has actually resulted to the appellant:
Provided that no order dismissing the appeal by the Tribunal shall be passed unless such order is made after recording reasons therefor in writing.
(5) The Tribunal may allow an appeal against conviction, and pass appropriate order thereon.
(6) Notwithstanding anything contained in the foregoing provisions of this section, the Tribunal shall have the power to- substitute for the findings of the court martial, a finding of guilty for any other offence for which the offender could have been lawfully found guilty by the court martial and pass a sentence afresh for the offence specified or involved in such findings under the provisions of the Army Act, 1950 (46 of 1950) or the Navy Act, 1957 (62 of 1957) or the Air Force Act, 1950, (45 of 1950) as the case may be; or if sentence is found to be excessive, illegal or unjust, the Tribunal may- remit the whole or any part of the sentence, with or without conditions;
(ii) mitigate the punishment awarded;
(iii) commute such punishment to any lesser punishment or punishments mentioned in the Army Act, 1950, (46 of 1950) the Navy Act, 1957 (62 of 1957) and the Air Force Act, 1950, (45 of 1950) as the case may be;
enhance the sentence awarded by a court -martial:
Provided that no such sentence shall be enhanced unless the appellant has been given an opportunity of being heard;
(d) release the appellant, if sentenced to imprisonment, on parole with or without conditions;
suspend a sentence of imprisonment;
pass any other order as it may think appropriate.
(7) Notwithstanding any other provisions in this Act, for the purposes of this section, the Tribunal shall be deemed to be a criminal court for the purposes of sections 175, 178, 179, 180, 193, 195, 196 or 228 (45 of 1860) of the Indian Penal Code and Chapter XXVI of the Code of Criminal Procedure, 1973. (2 of 1974)."
Sub-section (2) of Section 15 specifies the right of any person to prefer an appeal against order, decision, finding or sentence passed by a Court-Martial.
9. Chapter V of the Act relates to appeal. Section 30 which provides for an appeal to the Supreme Court and Section 31 deals with leave to appeal.
The said Sections read as under:
"Section 30. Appeal to Supreme Court :-(1) Subject to the provisions of section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under section 19):
Provided that such appeal is preferred within a period of ninety days of the said decision or order:
Provided further that there shall be no appeal against an interlocutory order of the Tribunal.
(2) An appeal shall lie to the Supreme Court as of right from any order or decision of the Tribunal in the exercise of its jurisdiction to punish for contempt: .
Provided that an appeal under this sub-section shall be filed in the Supreme Court within sixty days from the date of the order appealed against.
(3) Pending any appeal under sub-section (2), the Supreme Court may order that- the execution of the punishment or the order appealed against be suspended;
or if the appellant is in confinement, he be released on bail:
Provided that where an appellant satisfies the Tribunal that he intends to prefer an appeal, the Tribunal may also exercise any of the powers conferred under clause (a) or clause (b), as the case may be.
Section 31. Leave to appeal.- (1) An appeal to the Supreme Court shall lie with the leave of the Tribunal; and such leave shall not be granted unless it is certified by the Tribunal that a point of law of general public importance is involved in the decision, or it appears to the Supreme Court that the point is one which ought to be considered by that Court.
(2) An application to the Tribunal for leave to appeal to the Supreme Court shall be made within a period of thirty days beginning with the date of the decision of the Tribunal and an application to the Supreme Court for leave shall be made within a period of thirty days beginning with the date on which the application for leave is refused by the Tribunal.
(3) An appeal shall be treated as pending until any application for leave to appeal is disposed of and if leave to appeal is granted, until the appeal is disposed of; and an application for leave to appeal shall be treated as disposed of at the expiration of the time within which it might have been made, but it is not made within that time."
10. Section 32 empowers the Supreme Court to condone the delay i.e. to extend the time within which an appeal may be preferred by the person to the Court under Section 30 or sub-section (2) or Section 31. The said Section reads as follows:
"Section 32.Condonation.- The Supreme Court may, upon an application made at any time by the appellant, extend the time within which an appeal may be preferred by him to that Court under section 30 or sub-section (2) of section 31."
11. Section 33 excludes the jurisdiction of Civil Courts. Section 34 deals with transfer of pending cases before any court including a High Court or other authority immediately before the date of establishment of the Tribunal, the cause of action of which would have been within the jurisdiction of Tribunal. Sections 33 and 34 read as under:
"Section 33. Exclusion of jurisdiction of civil courts.- On and from the date from which any jurisdiction, powers and authority becomes exercisable by the Tribunal in relation-to service matters under this Act, no Civil Court shall have, or be entitled to exercise, such jurisdiction, power or authority in relation to those service matters.
34. Transfer of pending cases.- (1) Every suit, or other proceeding pending before any court including a High Court or other authority immediately before the date of establishment of the Tribunal under this Act, being a suit or proceeding the cause of action whereon it is based, is such that it would have been within the jurisdiction of the Tribunal, if it had arisen after such establishment within the jurisdiction of such Tribunal, stand transferred on that date to such Tribunal.
(2) Where any suit, or other proceeding stands transferred from any court including a High Court or other authority to the Tribunal under sub-section (1),- the court or other authority shall, as soon as may be, after such transfer, forward the records of such suit, or other proceeding to the Tribunal;
the Tribunal may, on receipt of such records, proceed to deal with such suit, or other proceeding, so far as may be, in the same' manner as in the case of an application made under sub-section (2) of section 14, from the stage which was reached before such transfer or from any earlier stage or de novo as the Tribunal may deem fit."
12. A plain reading of the above provisions shows:
A remedy of appeal to Supreme Court against any final order passed by the Tribunal under Section 30 with the leave of the Tribunal is provided under Section 31 of the Act.
In case leave is refused by the Tribunal, an application to the Supreme Court for leave can be made as provided under sub-section (1) and (2) of Section 31 of the Act.
Against any order or decision of the Tribunal made under Section 19 in exercise of its jurisdiction to punish for contempt, an appeal under sub- section (2) of Section 30 lies to the Supreme Court as of right.
Section 33 excludes the jurisdiction of the Civil Courts and not the High Court under Article 226 and 227. However, Section 34 relates to transfer of pending cases, suits and cases pending in other courts including the High Court. The suit pending before any Court or High Court may stand transferred if the cause of action comes under the jurisdiction of the Arms Forces Tribunal Act but it does not affect the power of the High Court under Section 226 and 227 of the Constitution.
13. The Parliamentary 10th Standing Committee for Defence in May, 2006 deliberated on the proposed Section 30 and 31 of the Act. Chapter XIV of the recorded deliberations provides insight into the legislative intent and replies/advice of the Law Ministry, relevant portion of which is reproduced below:
"CHAPTER XIV CLAUSE 30 : JURISDICTION OF TRIBUNAL AND HIGH COURT IN MATTERS RELATING TO APPEAL
84. Clause 30 provides:-
1. Subject to the provision of section 31, an appeal shall lie to the Supreme Court against the final decision or order of the Tribunal (other than an order passed under section 19):
Provided that such appeal is preferred within a period of ninety days of the said decision or order.
Provided further that there shall be no appeal against an interlocutory order of the Tribunal.
2. An appeal shall lie to the Supreme Court as of right from any order or decisions of the Tribunal in the exercise of its jurisdiction to punish for contempt.
Provided that an appeal under this sub-section shall be filed in the Supreme Court within sixty days from the date of the order appealed against.
3. Pending any appeal under sub-section (2), the Supreme Court may order that:- (a) the execution of the punishment or the order appealed against be suspended;
(b) if the appellant is in confinement, he be released on bail;
Provided that where an appellant satisfies the Tribunal that he intends to prefer an appeal, the Tribunal may also exercise any of the powers conferred under clause (a) or clause (b), as the case may be.
85. The Committee enquired about the nature of the proposed Tribunal, whether it would be a judicial, quasi judicial body in the line of Central Administrative Tribunal, the Ministry replied:- "Since the Armed Forces Tribunal would be dealing with offences,legally awardable punishments and termination of service etc. and the Tribunal is being armed with the powers of contempt, it would be a judicial body. It would be a permanent Tribunal and a Court of record."
86. When Committee asked, whether appeal would be preferred in High Courts or Supreme Court, the Ministry stated:
"Clause 30 of the Armed Forces Tribunal Bill, 2005 provides that an appeal against the final decision or order of Armed Forces Tribunal shall lie to the Supreme Court. Under the Constitution, the power of superintendence of High Court is already excluded against a Court Martial verdict."
87. On a specific query to the representatives of the Ministry of Law &
Justice, on the issue of appeal against the order of the Tribunal, they stated:- "In a case, L. Chandrakumar's case, which was relating to the Central Administrative Tribunal, which was established by an Act of Parliament, similar provisions were there where an appeal against the orders of the Central Administrative Tribunal was preferred to the Supreme Court but for some time it was entertained by the Supreme Court. But later on, subsequently in L. Chandrakumar's case, the Supreme Court said that the powers of the High Court under articles 226 and 227 cannot be taken away by an Act of Parliament. Thus, you know again from the orders of Central Administrative Tribunal, we have started preferring appeals to the High Court under article 226."
88. They further supplemented:
"It is not only in one case but also subsequently in a number of cases, the Supreme Court reiterated that principle. Many High Courts have reiterated that principle. When in another Bill, that is, National Tax Tribunal was being processed in this Committee Room by another Committee, there also many hon. Members of the Standing Committee said that in view of L.
Chandrakumar's case, you cannot have a touch tribunal from which you can directly go to the Supreme Court and we had accede that before that Committee tha article 226 is still there with the High Court. The minute you abolish article 226, then it will be treated by the Supreme Court as a violation of the essential characteristics of the basic structure of the Constitution, which is a limitation even on the power of Parliament to amend the Constitution."
89. When the Committee asked the Ministry of Law & Justice regarding possible solution of it, they stated that:
"We have processed the Bill. In the Bill we have taken the precaution that the Chairman of the Tribunal should be a retired judge or a sitting judge of the Supreme Court. If the Chairman of the Tribunal himself is a Supreme Court judge, then you know the High Courts are slightly hesitant in interfering with the judgment.
That is only thing but if a judge finds that there is a Constitutional violation of certain fundamental rights or there is a gross arbitrariness in an order of the Tribunal, then it will exercise its jurisdiction under article 226."
In this connection, the Ministry of Defence in a written note stated:
"The proposed Armed Forces Tribunal Bill, 2005 does not envisage a situation where an accused can approach the High Court in an appeal against the order of the Tribunal. There can be no equation between the High Court and any other Tribunal. On the other hand, analogy can be drawn between the CAT and the proposed Armed Forces Tribunal. In CAT, single member also constitutes a Bench [section 5(6)]. However, in the Armed Forces Tribunal, the minimum number of members to constitute a Bench is two. Further, as opposed to the CAT where the Chairperson is a serving or retired High Court judge, the Chairperson of the Armed Forces Tribunal is a retired Supreme Court Judge or retired Chief Justice of the High Court. Further Article 227(iv) of the Constitution excludes the power of superintendence of High Courts over any court or Tribunal constituted by or under any law relating to the Armed Forces. Therefore, an accused cannot go to the High Court in appeal against the order of the Armed Forces Tribunal."
90. The Committee note that clause 30 provides that subject to provisions of section 31, an appeal shall lie to Supreme Court against the final decision or order of the Tribunal. The Committee, however, are given to understand that in the case of L. Chanderkumar, where appeal against the order of the Central Administrative Tribunal was preferred to Supreme Court, the Court stated that powers of the High Court under Articles 226 and 227 cannot be taken away by an Act of Parliament. The Committee are of the view that the appeal against the Tribunal should be preferred as per the provisions of the Constitution.
NEW DELHI; BALASAHEB VIKHE PATIL, 16 May, 2006 Chairman, 26 Vaisakha, 1928 (Saka)Standing Committee on Defence."
14. Therefore, it is clear from the scheme of the Act that jurisdiction of the Tribunal constituted under the Armed Forces Tribunal Act is in substitution of the jurisdiction of Civil Court and the High Court so far as it relates to suit relating to condition of service of the persons subject to Army Act, 1950, the Navy Act, 1957 and the Air Force Act, 1950, which are special laws enacted by the Parliament by virtue of exclusive legislative power vested under Article 246 of the Constitution of India read with Entries 1 & 2 of List I of the Seventh Schedule.
15. Constitution of India In this context, it is also necessary to notice Articles 32 and 33 of the Constitution. Article 32 falls under Chapter III of the Constitution which deals with fundamental right. The said article guarantees the right to move before the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights conferred by the Part III. Article 32 reads as follows:
"Article 32. Remedies for enforcement of rights conferred by this Part.-(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution."
16. Article 33 empowers the Parliament to restrict or abrogate the application of fundamental rights in relation to Armed Forces, Para Military Forces, the Police etc. (refer: Ous Kutilingal Achudan Nair vs.Union of India[1975] INSC 284; , (1976) 2 SCC 780). The said article reads as follows:
"Article 33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.-Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,- (a) the members of the Armed Forces; or (b) the members of the Forces charged with the maintenance of public order; or (c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or (d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them."
17. Article 226 empowers High Court to issue prerogative writs. The said Article reads as under:
"Article 226.Power of High Courts to issue certain writs.- (1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, toissue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including 1[writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without- furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32."
18. Article 227 relates to power of superintendence of High Courts over all Courts and Tribunals. It reads as follows:
"Article 227. Power of superintendence over all courts by the High Court.- (1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provision, the High Court may- call for returns from such courts;
make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."
19. In this context, it is also necessary to notice Article 136 of the Constitution which provides special leave to appeal to Supreme Court:
"136.Special leave to appeal by the Supreme Court.-(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces."
In view of clause (2) of Article 136 which expressly excludes the judgments or orders passed by any Court or Tribunal constituted by or under any law relating to Armed Forces, the aggrieved persons cannot seek leave under Article 136 of Constitution of India; to appeal from such judgment or order. But right to appeal is available under Section 30 with leave to appeal under Section 31 of the Armed Forces Tribunal Act, 2007.
20. We may also refer to Article 227(4) of the Constitution, which reads as under:
"Article 227(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."
Thus, we find that there is a constitutional bar not only under Article 136(2) but also under Article 227(4) of the Constitution of India with regard to entertaining any determination or order passed by any court or Tribunal under law relating to Armed Forces.
21. Judicial review under Article 32 and 226 is a basic feature of the Constitution beyond the plea of amendability. While under Article 32 of the Constitution a person has a right to move before Supreme Court by appropriate proceedings for enforcement of the rights conferred by Part III of the Constitution, no fundament right can be claimed by any person to move before the High Court by appropriate proceedings under Article 226 for enforcement of the rights conferred by the Constitution or Statute.
22. In L. Chandra kumar vs. Union of India, (1997)3 SCC 261 a Bench of seven-Judge while dealing with the essential and basic features of Constitution - power of review and jurisdiction conferred on the High Court under Article 226/227 and on the Supreme Court under Article 32 held as follows:
"75. In Keshav Singh[1964] INSC 209; , (1965) 1 SCR 413 while addressing this issue, Gajendragadkar, C.J. stated as follows: (SCC at pp. 493-494) "If the power of the High Courts under Article 226 and the authority of this Court under Article 32 are not subject to any exceptions, then it would be futile to contend that a citizen cannot move the High Courts or this Court to invoke their jurisdiction even in cases where his fundamental rights have been violated. The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court in that behalf; otherwise the power conferred on the High Courts and this Court would be rendered virtually meaningless. Let it not be forgotten that the judicial power conferred on the High Courts and this Court is meant for the protection of the citizens' fundamental rights, and so, in the existence of the said judicial power itself is necessarily involved the right of the citizen to appeal to the said power in a proper case."
(emphasis added)
76. To express our opinion on the issue whether the power of judicial review vested in the High Courts and in the Supreme Court under Articles 226/227 and 32 is part of the basic structure of the Constitution, we must first attempt to understand what constitutes the basic structure of the Constitution. The doctrine of basic structure was evolved in Kesavananda Bharati case (1993 4 SCC 225). However, as already mentioned, that case did not lay down that the specific and particular features mentioned in that judgment alone would constitute the basic structure of our Constitution.
Indeed, in the judgments of Shelat and Grover, JJ., Hegde and Mukherjea, JJ. and Jaganmohan Reddy, J., there are specific observations to the effect that their list of essential features comprising the basic structure of the Constitution are illustrative and are not intended to be exhaustive. In Indira Gandhi case, (1975 Supp SCC 1), Chandrachud, J. held that the proper approach for a Judge who is confronted with the question whether a particular facet of the Constitution is part of the basic structure, is to examine, in each individual case, the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of our Constitution as a fundamental instrument for the governance of the country. (supra at pp. 751- 752). This approach was specifically adopted by Bhagwati, J. in Minerva Mills case [(1980) 3 SCC 625] (at pp. 671-672) and is not regarded as the definitive test in this field of Constitutional Law.
77. We find that the various factors mentioned in the test evolved by Chandrachud, J. have already been considered by decisions of various Benches of this Court that have been referred to in the course of our analysis. From their conclusions, many of which have been extracted by us in toto, it appears that this Court has always considered the power of judicial review vested in the High Courts and in this Court under Articles 226 and 32 respectively, enabling legislative action to be subjected to the scrutiny of superior courts, to be integral to our constitutional scheme.
While several judgments have made specific references to this aspect [Gajendragadkar, C.J. in Keshav Singh case, Beg, J. and Khanna, J. in Kesavananda Bharati [pic]case, Chandrachud, C.J. and Bhagwati, J. in Minerva Mills, Chandrachud, C.J. in Fertilizer Kamgar[(1981) 1 scc 568], K.N. Singh, J. in Delhi Judicial Service Assn. [(1991)4 scc 406], etc.] the rest have made general observations highlighting the significance of this feature."
23. In S.N. Mukherjee vs.Union of India, (1990)4 SCC 594, this Court noticed the special provision in regard to the members of the Armed Forces in the Constitution of India and held as follows:
[pic]" 42. Before referring to the relevant provisions of the Act and the Rules it may be mentioned that the Constitution contains certain special provisions in regard to members of the Armed Forces. Article 33 empowers Parliament to make law determining the extent to which any of the rights conferred by Part III shall, in their application to the members of the Armed Forces be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline amongst them.
By clause (2) of Article 136 the appellate jurisdiction of this Court under Article 136 of the Constitution has been excluded in relation to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.
Similarly clause (4) of Article 227 denies to the High Courts the power of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. This Court under Article 32 and the High Courts under Article 226 have, however, the power of judicial review in respect of proceedings of courts martial and the proceedings subsequent thereto and can grant appropriate relief if the said proceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record."
24. A three-Judge Bench of this Court in R.K. Jain vs. Union of India &
ors.[1993] INSC 297; , (1993) 4 SCC 119, observed:
"66. In S.P. Sampath Kumar v. Union of India this Court held that the primary duty of the judiciary is to interpret the Constitution and the laws and this would predominantly be a matter fit to be decided by the judiciary, as judiciary alone would be possessed of expertise in this field and secondly the constitutional and legal protection afforded to the citizen would become illusory, if it were left to the executive to determine the legality of its own action. The Constitution has, therefore, created an independent machinery i.e. judiciary to resolve disputes, which is vested with the power of judicial review to determine the legality of the legislative and executive actions and to ensure compliance with the requirements of law on the part of the executive and other authorities.
This function is discharged by the judiciary by exercising the power of judicial review which is a most potent weapon in the hands of the judiciary for maintenance of the rule of law. The power of judicial review is an integral part of our constitutional system and without it, there will be no government of laws and the rule of law would become a teasing illusion and a promise of unreality. The judicial review, therefore, is a basic and essential feature of the Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. The basic and essential feature of judicial review cannot be dispensed with but it would be within the competence of Parliament to amend the Constitution and to provide alternative institutional mechanism or arrangement for judicial [pic]review, provided it is no less efficacious than the High Court. It must, therefore, be read as implicit in the constitutional scheme that the law excluding the jurisdiction of the High Court under Articles 226 and 227 permissible under it, must not leave a void but it must set up another effective institutional mechanism or authority and vest the power of judicial review in it which must be equally effective and efficacious in exercising the power of judicial review. The tribunal set up under theAdministrative Tribunals Act, 1985 was required to interpret and apply Articles 14, 15, 16 and 311 in quite a large number of cases. Therefore, the personnel manning the administrative tribunal in their determinations not only require judicial approach but also knowledge and expertise in that particular branch of constitutional and administrative law. The efficacy of the administrative tribunal and the legal input would undeniably be more important and sacrificing the legal input and not giving it sufficient weightage would definitely impair the efficacy and effectiveness of the Administrative Tribunal. Therefore, it was held that an appropriate rule should be made to recruit the members; and to consult the Chief Justice of India in recommending appointment of the Chairman, Vice-Chairman and Members of the Tribunal and to constitute a committee presided over by Judge of the Supreme Court to recruit the members for appointment. In M.B.
Majumdar v. Union of India when the members of CAT claimed parity of pay and superannuation as is available to the Judges of the High Court, this Court held that they are not on a par with the judges but a separate mechanism created for their appointment pursuant to Article 323-A of the Constitution. Therefore, what was meant by this Court in Sampath Kumar case ratio is that the tribunals when exercise the power and functions, the Act created institutional alternative mechanism or authority to adjudicate the service disputations. It must be effective and efficacious to exercise the power of judicial review. This Court did not appear to have meant that the tribunals are substitutes of the High Court under Articles 226 and 227 of the Constitution. J.B. Chopra v. Union of India merely followed the ratio of Sampath Kumar."
25. From the aforesaid decisions of this Court in L. Chandra and S.N.
Mukherjee, we find that the power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.
26. Basic principle for exercising power under Article 226 of the Constitution:
In Babubhai Muljibhai Patel vs. Nandlal Khodidas Barot and others, [1974] INSC 177AIR 1974 SC 2105 this Court held as follows:
"9.....Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition (See Gunwant Kaur v.Bhatinda Municipality, AIR 1970 SC 802). If, however,on consideration of the nature of the controversy, the High Court decides, as in the present case, that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by the High Court in this respect."
27. In Mafatlal Industries Ltd. and others vs.Union of India and others, (1997) 5 SCC 536, a nine-Judge Bench of this Court while considering the Excise Act and Customs Act held that the jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. This Court held:
"108. The discussion in the judgment yields the following propositions. We may forewarn that these propositions are set out merely for the sake of convenient reference and are not supposed to be exhaustive. In case of any doubt or ambiguity in these propositions, reference must be had to the discussion and propositions in the body of the judgment.
(i)...........While the jurisdiction of the High Courts under Article 226 - and of this Court under Article 32 - cannot be circumscribed by the provisions of the said enactments, they will certainly have due regard to the legislative intent evidenced by the [pic]provisions of the said Acts and would exercise their jurisdiction consistent with the provisions of the Act. The writ petition will be considered and disposed of in the light of and in accordance with the provisions of Section 11-B. This is for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it.
Xxx xxx xxx xxx
28. In Kanaiyalal Lalchand and Sachdev and others vs. State of Maharasthra and others, (2011) 2 SCC 782, this Court considered the question of maintainability of the writ petition while an alternative remedy is available. This Court upheld the decision of the Bombay High Court dismissing the writ petition filed by the appellants therein on the ground of existence of an efficacious alternative remedy under Section 17 of SARFASI Act and held:
"23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person.
(See Sadhana Lodh v. National Insurance Co. Ltd., Surya Dev Rai v. Ram Chander Rai and SBI v. Allied Chemical Laboratories7.)
24. In City and Industrial Development Corpn. v. Dosu Aardeshir Bhiwandiwala this Court had observed that: (SCC p. 175, para 30) "30. The Court while exercising its jurisdiction under Article 226 is duty- bound to consider whether:
(a) adjudication of the writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) the person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law;
and host of other factors."
29. In Nivedita Sharma vs. Cellular Operators Association of India and others, (2011)14 SCC 337, this Court noticed that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. The Court further noticed the previous decisions of this Court wherein the Court adverted to the rule of self-restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person as follows:
13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa this Court observed: (SCC pp. 440-41, para 11) "11. ... It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co.
v. Hawkesford in the following passage: (ER p. 495) '... There are three classes of cases in which a liability may be established founded upon a statute. ... But there is a third class viz.
where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.
... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd. and Secy. of State v. Mask and Co. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."
14. In Mafatlal Industries Ltd. v. Union of India B.P. Jeevan Reddy, J.
(speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) "77. ... So far as the jurisdiction of the High Court under Article 226-or for that matter, the jurisdiction of this Court under Article 32-is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while [pic]exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment."
15. In the judgments relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, it has been held that an alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute is under challenge.
16. It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal v. Supt. of Taxes8 and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field."
30. In Executive Engineer, Southern Electricity Supply Company of Orissa Limited (SOUTHCO) and another vs. Sri Seetaram Rice Mill, (2012) 2 SCC 108, a three-Judge Bench held:
"80. It is a settled canon of law that the High Court would not normally interfere in exercise of its jurisdiction under Article 226 of the Constitution of India where statutory alternative remedy is available. It is equally settled that this canon of law is not free of exceptions. The courts, including this Court, have taken the view that the statutory remedy, if provided under a specific [pic]law, would impliedly oust the jurisdiction of the civil courts. The High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India can entertain writ or appropriate proceedings despite availability of an alternative remedy. This jurisdiction, the High Court would exercise with some circumspection in exceptional cases, particularly, where the cases involve a pure question of law or vires of an Act are challenged. This class of cases we are mentioning by way of illustration and should not be understood to be an exhaustive exposition of law which, in our opinion, is neither practical nor possible to state with precision. The availability of alternative statutory or other remedy by itself may not operate as an absolute bar for exercise of jurisdiction by the courts. It will normally depend upon the facts and circumstances of a given case. The further question that would inevitably come up for consideration before the Court even in such cases would be as to what extent the jurisdiction has to be exercised.
81. Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given case. We are of the considered view that interest of administration of justice shall be better subserved if the cases of the present kind are heard by the courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act. However, it should only be for the specialised tribunal or the appellate authorities to examine the merits of assessment or even the factual matrix of the case."
31. In Cicily Kallarackal vs. Vehicle Factory 2012(8) SCC 524, the Division Bench of this Court held:
"4. Despite this, we cannot help but state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the legislature has provided for a [pic]statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercised its jurisdiction in accordance with law. The case is one of improper exercise of jurisdiction.
It is not expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds.
XXX XXX XXX XXX
9. ........, we hereby make it clear that the orders of the Commission are incapable of being questioned under the writ jurisdiction of the High Court, as a statutory appeal in terms of Section 27-A(1)(c) lies to this Court. Therefore, we have no hesitation in issuing a direction of caution that it will not be a proper exercise of jurisdiction by the High Courts to entertain writ petitions against such orders of the Commission."
32. Another Division Bench of this Court in Commissioner of Income Tax and others vs. Chhabil Dass Agrawal, (2014)1 SCC 603 held:
"11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy.
However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh, Titaghur Paper Mills Co. Ltd. v. State of Orissa, Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and State of H.P. v.
Gujarat Ambuja Cement Ltd.
12. The Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission, Sangram Singh v. Election Tribunal, Union of India v. T.R. Varma, State of U.P. v. Mohd. Nooh2 and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. [See N.T. Veluswami Thevar v. G. Raja Nainar, Municipal [pic]Council, Khurai v.
Kamal Kumar, Siliguri Municipality v. Amalendu Das, S.T. Muthusami v. K.
Natarajan, Rajasthan SRTC v. Krishna Kant, Kerala SEB v. Kurien E.
Kalathil, A. Venkatasubbiah Naidu v. S. Chellappan, L.L. Sudhakar Reddy v.
State of A.P., Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra, Pratap Singh v. State of Haryana and GKN Driveshafts (India) Ltd. v. ITO.]
13. In Nivedita Sharma v. Cellular Operators Assn. of India, this Court has held that where hierarchy of appeals is provided by the statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows: (SCC pp. 343-45, paras 12-14) "12. In Thansingh Nathmal v. Supt. of Taxes this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7) '7. ... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by the statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.'
13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa this Court observed: (SCC pp. 440-41, para 11) '11. ... It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co.
v. Hawkesford in the following passage: (ER p. 495) xxx xxx xxx xxx 14. In Mafatlal Industries Ltd. v. Union of India B.P. Jeevan Reddy, J.
(speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) '77. ... So far as the jurisdiction of the High Court under Article 226-or for that matter, the jurisdiction of this Court under Article 32-is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.'"
(See G. Veerappa Pillai v. Raman & Raman Ltd., CCE v. Dunlop India Ltd., Ramendra Kishore Biswas v. State of Tripura, Shivgonda Anna Patil v. State of Maharashtra, C.A. Abraham v. ITO, Titaghur Paper Mills Co. Ltd. v. State of Orissa, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath and Sons, Whirlpool Corpn. v. Registrar of Trade Marks, [pic]Tin Plate Co.
of India Ltd. v. State of Bihar, Sheela Devi v. Jaspal Singh and Punjab National Bank v. O.C. Krishnan.)
15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."
33. Statutory Remedy In Union of India vs. Brigadier P.S. Gill, (2012) 4 SCC 463, this Court while dealing with appeals under Section 30 of the Armed Forces Tribunal Act following the procedure prescribed under Section 31 and its maintainability, held as follows:
"8. Section 31 of the Act extracted above specifically provides for an appeal to the Supreme Court but stipulates two distinct routes for such an appeal. The first route to this Court is sanctioned by the Tribunal granting leave to file such an appeal. Section 31(1) in no uncertain terms forbids grant of leave to appeal to this Court unless the Tribunal certifies that a point of law of general public importance is involved in the decision. This implies that Section 31 does not create a vested, indefeasible or absolute right of filing an appeal to this Court against a final order or decision of the Tribunal to this Court. Such an appeal must be preceded by the leave of the Tribunal and such leave must in turn be preceded by a certificate by the Tribunal that a point of law of general public importance is involved in the appeal.
9. The second and the only other route to access this Court is also found in Section 31(1) itself. The expression "or it appears to the Supreme Court [pic]that the point is one which ought to be considered by that Court"
empowers this Court to permit the filing of an appeal against any such final decision or order of the Tribunal.
10. A conjoint reading of Sections 30 and 31 can lead to only one conclusion viz. there is no vested right of appeal against a final order or decision of the Tribunal to this Court other than those falling under Section 30(2) of the Act. The only mode to bring up the matter to this Court in appeal is either by way of certificate obtained from the Tribunal that decided the matter or by obtaining leave of this Court under Section 31 for filing an appeal depending upon whether this Court considers the point involved in the case to be one that ought to be considered by this Court.
11. An incidental question that arises is: whether an application for permission to file an appeal under Section 31 can be moved directly before the Supreme Court without first approaching the Tribunal for a certificate in terms of the first part of Section 31(1) of the Act?
12. In the ordinary course the aggrieved party could perhaps adopt one of the two routes to bring up the matter to this Court but that does not appear to be the legislative intent evident from Section 31(2) (supra). A careful reading of the section shows that it not only stipulates the period for making an application to the Tribunal for grant of leave to appeal to this Court but also stipulates the period for making an application to this Court for leave of this Court to file an appeal against the said order which is sought to be challenged.
13. It is significant that the period stipulated for filing an application to this Court starts running from the date beginning from the date the application made to the Tribunal for grant of certificate is refused by the Tribunal. This implies that the aggrieved party cannot approach this Court directly for grant of leave to file an appeal under Section 31(1) read with Section 31(2) of the Act.
14. The scheme of Section 31 being that an application for grant of a certificate must first be moved before the Tribunal, before the aggrieved party can approach this Court for the grant of leave to file an appeal. The purpose underlying the provision appears to be that if the Tribunal itself grants a certificate of fitness for filing an appeal, it would be unnecessary for the aggrieved party to approach this Court for a leave to file such an appeal. An appeal by certificate would then be maintainable as a matter of right in view of Section 30 which uses the expression "an appeal shall lie to the Supreme Court". That appears to us to be the true legal position on a plain reading of the provisions of Sections 30 and 31."
Thus, we find that though under Section 30 no person has a right of appeal against the final order or decision of the Tribunal to this Court other than those falling under Section 30(2) of the Act, but it is statutory appeal which lies to this Court.
34. The aforesaid decisions rendered by this Court can be summarised as follows:
The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including Armed Forces Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India.(Refer: L.
Chandra and S.N. Mukherjee).
(ii)The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by the provisions of the Acts and would exercise their jurisdiction consistent with the provisions of the Act.(Refer: Mafatlal Industries Ltd.).
(iii)When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer: Nivedita Sharma).
(iv)The High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. (Refer:
Nivedita Sharma).
Article 141 of the Constitution of India reads as follows:
"Article 141.Law declared by Supreme Court to be binding on all courts.- The law declared by the Supreme Court shall be binding on all courts within the territory of India."
36. In Executive Engineer, Southern Electricity Supply Company of Orissa Limited(SOUTHCO) this Court observed that it should only be for the specialised tribunal or the appellate authorities to examine the merits of assessment or even the factual matrix of the case.
In Chhabil Dass Agrawal this Court held that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
In Cicily Kallarackal this Court issued a direction of caution that it will not be a proper exercise of the jurisdiction by the High Court to entertain a writ petition against such orders against which statutory appeal lies before this Court.
In view of Article 141(1) the law as laid down by this Court, as referred above, is binding on all courts of India including the High Courts.
37. Likelihood of anomalous situation If the High Court entertains a petition under Article 226 of the Constitution of India against order passed by Armed Forces Tribunal under Section 14 or Section 15 of the Act bypassing the machinery of statute i.e.
Sections 30 and 31 of the Act, there is likelihood of anomalous situation for the aggrieved person in praying for relief from this Court.
Section 30 provides for an appeal to this Court subject to leave granted under Section 31 of the Act. By clause (2) of Article 136 of the Constitution of India, the appellate jurisdiction of this Court under Article 136 has been excluded in relation to any judgment, determination, sentence or order passed or made by any court or Tribunal constituted by or under any law relating to the Armed Forces. If any person aggrieved by the order of the Tribunal, moves before the High Court under Article 226 and the High Court entertains the petition and passes a judgment or order, the person who may be aggrieved against both the orders passed by the Armed Forces Tribunal and the High Court, cannot challenge both the orders in one joint appeal. The aggrieved person may file leave to appeal under Article 136 of the Constitution against the judgment passed by the High Court but in view of the bar of jurisdiction by clause (2) of Article 136, this Court cannot entertain appeal against the order of the Armed Forces Tribunal.
Once, the High Court entertains a petition under Article 226 of the Constitution against the order of Armed Forces Tribunal and decides the matter, the person who thus approached the High Court, will also be precluded from filing an appeal under Section 30 with leave to appeal under Section 31 of the Act against the order of the Armed Forces Tribunal as he cannot challenge the order passed by the High Court under Article 226 of the Constitution under Section 30 read with Section 31 of the Act. Thereby, there is a chance of anomalous situation. Therefore, it is always desirable for the High Court to act in terms of the law laid down by this Court as referred to above, which is binding on the High Court under Article 141 of the Constitution of India, allowing the aggrieved person to avail the remedy under Section 30 read with Section 31 Armed Forces Act.
38. The High Court (Delhi High Court) while entertaining the writ petition under Article 226 of the Constitution bypassed the machinery created under Sections 30 and 31 of Act. However, we find that Andhra Pradesh High Court and the Allahabad High Court had not entertained the petitions under Article 226 and directed the writ petitioners to seek resort under Sections 30 and 31 of the Act. Further, the law laid down by this Court, as referred to above, being binding on the High Court, we are of the view that Delhi High Court was not justified in entertaining the petition under Article 226 of the Constitution of India.
39. For the reasons aforesaid, we set aside the impugned judgments passed by the Delhi High Court and upheld the judgments and orders passed by the Andhra Pradesh High Court and Allahabad High Court. Aggrieved persons are given liberty to avail the remedy under Section 30 with leave to appeal under Section 31 of the Act, and if so necessary may file petition for condonation of delay to avail remedy before this Court.
40. The Civil Appeal Nos.7400, 7375-7376, 7399, 9388, 9389 of 2013 are allowed and the Civil Appeal Nos.7338 of 2013 and 96 of 2014 are dismissed.
.............................................................................J.
(SUDHANSU JYOTI MUKHOPADHAYA) 
.............................................................................J.
(N.V. RAMANA) 
NEW DELHI, MARCH 11, 2015.