Bombay HC: A preliminary inquiry and opportunity of hearing are not mandatory before a court directs filing a complaint U/S 379 of BNSS

Criminal Procedure - Forgery - Complaint against advocate - Section 379 of Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) - Present petition filed by advocate challenging directions of Reference Court to lodge FIR and file complaints against him and claimants for offences related to forged documents used in land acquisition reference proceedings - Whether the Reference Court's directions to lodge an FIR and file complaints against the petitioner and claimants are valid, and whether a preliminary inquiry and opportunity of hearing are mandatory before making such directions - Held, the Reference Court, based on evidence presented during the land acquisition reference proceedings, formed an opinion that the petitioner and claimants had knowledge of the forgery of documents and used them to mislead the court - Section 379 of BNSS (formerly Section 340 Cr.P.C.) does not mandate a complaint in every case, but only if it is "expedient in the interest of justice," and allows for a preliminary inquiry to determine this - A preliminary inquiry and opportunity of hearing are not mandatory before a court directs filing a complaint, as the inquiry is not to determine guilt or innocence - The person against whom a complaint is made has a legal right to be heard by the Magistrate during subsequent proceedings - Principles of natural justice are generally not applicable at the stage of reporting a criminal offence, as this would frustrate proceedings - The Reference Court's opinion was based on an in-depth inquiry during the trial, and is not a finding of guilt against the petitioner - The directions to the Assistant Superintendent of Court to file complaints for offences committed on court record and the directions to the Collector to lodge FIR/police reports for offences committed outside the court are distinct and valid - Petition dismissed.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 1660 of 2026

Decided On: 06.05.2026

Kishor Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.G. Chapalgaonkar, J.

 Citation: 2026:BHC-AUG:21520,MANU/MH/4470/2026

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Supreme court: Non-Observance of Natural Justice: Prejudice in Itself

 57. Mr. Naphade would submit that the Appellant did not suffer any prejudice. We do not agree. Infringement of such a valuable right itself causes prejudice. In S.L. Kapoor v. Jagmohan   MANU/SC/0036/1980 : (1980) 4 SCC 379 this Court clearly held: (SCC p. 395, para 24)

24.... In our view the principles of natural justice know of no exclusionary Rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will comes from a person who has denied justice that the person who has been denied justice is not prejudiced.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 656-657 of 2019.

Decided On: 11.04.2019

Atma Ram and Ors. Vs. State of Rajasthan .

Hon'ble Judges/Coram:

U.U. Lalit and Indu Malhotra, JJ.

Author: U.U. Lalit, J.

Citation: (2019) 20 SCC 481,2019 INSC 516,  MANU/SC/0526/2019.

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Supreme court: When an order has been passed in violation of a fundamental right or in breach of the principles of natural justice, the same would be a nullity

 In A.R. Antulay v. R.S. Nayak   MANU/SC/0002/1988 : (1988) 2 SCC 602 a seven-Judge Bench of this Court has also held that when an order has been passed in violation of a fundamental right or in breach of the principles of natural justice, the same would be a nullity. (See also State of Haryana v. State of Punjab   MANU/SC/0524/2004 : (2004) 12 SCC 673 and Rajasthan SRTC v. Zakir Hussain   MANU/SC/0496/2005 : (2005) 7 SCC 447. {Para 58}

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 656-657 of 2019.

Decided On: 11.04.2019

Atma Ram and Ors. Vs. State of Rajasthan .

Hon'ble Judges/Coram:

U.U. Lalit and Indu Malhotra, JJ.

Author: U.U. Lalit, J.

Citation: (2019) 20 SCC 481,2019 INSC 516,  MANU/SC/0526/2019.

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Revolutionary Precedent: Supreme Court Empowers Pollution Control Boards to Impose Environmental Compensation Beyond Criminal Penalties

 A Paradigm Shift in Environmental Regulatory Authority

In a landmark judgment delivered in August 2025, the Supreme Court of India in Delhi Pollution Control Committee v. Lodhi Property Co. Ltd. has fundamentally transformed the landscape of environmental regulation by empowering Pollution Control Boards to impose compensatory damages for environmental harm without requiring criminal prosecution. This decision marks a watershed moment in Indian environmental jurisprudence, establishing a clear distinction between punitive penalties and restorative environmental compensation.

The Legal Challenge: Restrictive Interpretation vs. Expansive Environmental Protection

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Supreme Court: Right To Property | 7 Sub-Rights of land owner Which State Must Protect During Land Acquisition

 The Right to property: A net of intersecting rights: There is yet another aspect of the matter. Under our constitutional scheme, compliance with a fair procedure of law before depriving any person of his immovable property is well entrenched. {Para 24}

25. While it is true that after the 44th Constitutional Amendment4, the right to property drifted from Part III to Part XII of the Constitution, there continues to be a potent safety net against arbitrary acquisitions, hasty decision-making and unfair redressal mechanisms. Despite its spatial placement, Article 300A5 which declares that "no person shall be deprived of his property save by authority of law" has been characterized both as a constitutional and also a human right6. To assume that constitutional protection gets constricted to the mandate of a fair compensation would be a disingenuous reading of the text and, shall we say, offensive to the egalitarian spirit of the Constitution.

26.  The binary reading of the constitutional right to property must give way to more meaningful renditions, where the larger right to property is seen as comprising intersecting sub-rights, each with a distinct character but interconnected to constitute the whole. These sub-rights weave themselves into each other, and as a consequence, State action or the legislation that results in the deprivation of private property must be measured against this constitutional net as a whole, and not just one or many of its strands.

27. What then are these sub-rights or strands of this swadeshi constitutional fabric constituting the right to property? Seven such sub-rights can be identified, albeit non-exhaustive. These are:

i) duty of the State to inform the person that it intends to acquire his property - the right to notice, ii) the duty of the State to hear objections to the acquisition - the right to be heard, iii) the duty of the State to inform the person of its decision to acquire - the right to a reasoned decision, iv) the duty of the State to demonstrate that the acquisition is for public purpose - the duty to acquire only for public purpose, v) the duty of the State to restitute and rehabilitate- the right of restitution or fair compensation, vi) the duty of the State to conduct the process of acquisition efficiently and within prescribed timelines of the proceedings - the right to an efficient and expeditious process, and vii) final conclusion of the proceedings leading to vesting - the right of conclusion.

28. These seven rights are foundational components of a law that is tune with Article 300A, and the absence of one of these or some of them would render the law susceptible to challenge. The judgment of this Court in K.T. Plantations (supra)9 declares that the law envisaged Under Article 300A must be in line with the overarching principles of Rule of law, and must be just, fair, and reasonable. It is, of course, precedentially sound to describe some of these sub-rights as 'procedural', a nomenclature that often tends to undermine the inherent worth of these safeguards. These seven sub-rights may be procedures, but they do constitute the real content of the right to property Under Article 300A, non- compliance of these will amount to violation of the right, being without the authority of law.

29. These sub-rights of procedure have been synchronously incorporated in laws concerning compulsory acquisition and are also recognised by our constitutional courts while reviewing administrative actions for compulsory acquisition of private property. The following will demonstrate how these seven principles have seamlessly become an integral part of our Union and State statutes concerning acquisition and also the constitutional and administrative law culture that our courts have evolved from time to time.

30. Following are the seven principles:

30.1. The Right to notice: (i) A prior notice informing the bearer of the right that the State intends to deprive them of the right to property is a right in itself; a linear extension of the right to know embedded in Article 19(1)(a). The Constitution does not contemplate acquisition by ambush. The notice to acquire must be clear, cogent and meaningful. Some of the statutes reflect this right.

30.2. The Right to be heard: (i) Following the right to a meaningful and effective prior notice of acquisition, is the right of the property-bearer to communicate his objections and concerns to the authority acquiring the property. This right to be heard against the proposed acquisition must be meaningful and not a sham.

30.3. The Right to a reasoned decision: i) That the authorities have heard and considered the objections is evidenced only through a reasoned order. It is incumbent upon the authority to take an informed decision and communicate the same to the objector.

30.4. The Duty to acquire only for public purpose: (i) That the acquisition must be for a public purpose is inherent and an important fetter on the discretion of the authorities to acquire. This requirement, which conditions the purpose of acquisition must stand to reason with the larger constitutional goals of a welfare state and distributive justice.

30.5. The Right of restitution or fair compensation: (i) A person's right to hold and enjoy property is an integral part to the constitutional right Under Article 300A. Deprivation or extinguishment of that right is permissible only upon restitution, be it in the form of monetary compensation, rehabilitation or other similar means. Compensation has always been considered to be an integral part of the process of acquisition.

30.6. The Right to an efficient and expeditious process: (i) The acquisition process is traumatic for more than one reason. The administrative delays in identifying the land, conducting the enquiry and evaluating the objections, leading to a final declaration, consume time and energy. Further, passing of the award, payment of compensation and taking over the possession are equally time consuming. It is necessary for the administration to be efficient in concluding the process and within a reasonable time. This obligation must necessarily form part of Article 300A.

30.7. The Right of conclusion: (i) Upon conclusion of process of acquisition and payment of compensation, the State takes possession of the property in normal circumstances. The culmination of an acquisition process is not in the payment of compensation, but also in taking over the actual physical possession of the land. If possession is not taken, acquisition is not complete. With the taking over of actual possession after the normal procedures of acquisition, the private holding is divested and the right, title and interest in the property, along-with possession is vested in the State. Without final vesting, the State's, or its beneficiary's right, title and interest in the property is inconclusive and causes lot of difficulties. The obligation to conclude and complete the process of acquisition is also part of Article 300A.

31. The seven principles which we have discussed are integral to the authority of law enabling compulsory acquisition of private property. Union and State statutes have adopted these principles and incorporated them in different forms in the statutes provisioning compulsory acquisition of immovable property. The importance of these principles, independent of the statutory prescription have been recognised by our constitutional courts and they have become part of our administrative law jurisprudence.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6466 of 2024 

Kolkata Municipal Corporation and Ors. Vs. Bimal Kumar Shah and Ors.

Hon'ble Judges/Coram:

Pamidighantam Sri Narasimha and Aravind Kumar, JJ.

Author: Pamidighantam Sri Narasimha, J.

Decided On: 16.05.2024

Citation: MANU/SC/0450/2024.

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Supreme Court: Enquiry under POSH Act is to be conducted afresh if there is violation of principle of natural justice

 In fact, the glaring defects and the procedural lapses in the inquiry proceedings took place only thereafter, in the month of May, 2009, when 12 hearings, most of them back-to-back, were conducted by the Committee at a lightning speed. On the one hand, the Committee kept on forwarding to the Appellant, depositions of some more complainants received later on and those of other witnesses and called upon him to furnish his reply and on the other hand, it directed him to come prepared to cross-examine the said complainants and witnesses as also record his further deposition, all in a span of one week. Even if the medical grounds taken by the Appellant seemed suspect, the Committee ought to have given him reasonable time to prepare his defence, more so when his request for being represented through a lawyer had already been declined. It was all this undue anxiety that had led to short-circuiting the inquiry proceedings conducted by the Committee and damaging the very fairness of the process. {Para 73}

74. For the above reasons, the Appellant cannot be faulted for questioning the process and its outcome. There is no doubt that matters of this nature are sensitive and have to be handled with care. The Respondents had received as many as seventeen complaints from students levelling serious allegations of sexual harassment against the Appellant. But that would not be a ground to give a complete go by to the procedural fairness of the inquiry required to be conducted, more so when the inquiry could lead to imposition of major penalty proceedings. When the legitimacy of the decision taken is dependent on the fairness of the process and the process adopted itself became questionable, then the decision arrived at cannot withstand judicial scrutiny and is wide open to interference. It is not without reason that it is said that a fair procedure alone can guarantee a fair outcome. In this case, the anxiety of the Committee of being fair to the victims of sexual harassment, has ended up causing them greater harm.

75. This Court is, therefore, of the opinion that the proceedings conducted by the Committee with effect from the month of May, 2009, fell short of the "as far as practicable" norm prescribed in the relevant Rules. The discretion vested in the Committee for conducting the inquiry has been exercised improperly, defying the principles of natural justice. As a consequence thereof, the impugned judgment upholding the decision taken by the EC of terminating the services of the Appellant, duly endorsed by the Appellate Authority cannot be sustained and is accordingly quashed and set aside with the following directions:

(i) The matter is remanded back to the Complaints Committee to take up the inquiry proceeding as they stood on 5th May 2009.

(ii) The Committee shall afford adequate opportunity to the Appellant to defend himself.

(iii) The Appellant shall not seek any adjournment of the proceedings.

(iv) A Report shall be submitted by the Committee to the Disciplinary Authority for appropriate orders.

(v) Having regard to the long passage of time, the Respondents are directed to complete the entire process within three months from the first date of hearing fixed by the Committee.

(vi) The procedure to be followed by the Committee and the Disciplinary Authority shall be guided by the principles of natural justice.

(vii) The Rules applied will be as were applicable at the relevant point of time.

(viii) The decision taken by the Committee and the Disciplinary Authority shall be purely on merits and in accordance with law.

(ix) The Appellant will not be entitled to claim immediate reinstatement or back wages till the inquiry is completed and a decision is taken by the Disciplinary Authority.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2482 of 2014

Decided On: 12.05.2023

Aureliano Fernandes Vs. State of Goa and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and Hima Kohli, JJ.

Author: Hima Kohli, J.

Citation: AIR 2023 SC 2485,MANU/SC/0572/2023.

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Leading Supreme Court Judgment on Prevention of Sexual harassment Act (POSH ACT 2013)

O. DIRECTIONS

79. To fulfil the promise that the PoSH Act holds out to working women all over the country, it is deemed appropriate to issue the following directions:

(i) The Union of India, all State Governments and Union Territories are directed to undertake a time bound exercise to verify as to whether all the concerned Ministries, Departments, Government organizations, authorities, Public Sector Undertakings, institutions, bodies, etc. have constituted ICCs/LCs/ICs, as the case may be and that the composition of the said Committees are strictly in terms of the provisions of the PoSH Act.

(ii) It shall be ensured that necessary information regarding the constitution and composition of the ICCs/LCs/ICs, details of the e-mail IDs and contact numbers of the designated person(s), the procedure prescribed for submitting an online complaint, as also the relevant rules, Regulations and internal policies are made readily available on the website of the concerned Authority/Functionary/ Organisation/Institution/Body, as the case may be. The information furnished shall also be updated from time to time.

(iii) A similar exercise shall be undertaken by all the Statutory bodies of professionals at the Apex level and the State level (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals), by Universities, colleges, Training Centres and educational institutions and by government and private hospitals/nursing homes.

(iv) Immediate and effective steps shall be taken by the authorities/ managements/employers to familiarize members of the ICCs/LCs/ICs with their duties and the manner in which an inquiry ought to be conducted on receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received, till the inquiry is finally concluded and the Report submitted.

(v) The authorities/management/employers shall regularly conduct orientation programmes, workshops, seminars and awareness programmes to upskill members of the ICCs/LCs/ICs and to educate women employees and women's groups about the provisions of the Act, the Rules and relevant Regulations.

(vi) The National Legal Services Authority(NALSA) and the State Legal Services Authorities(SLSAs) shall develop modules to conduct workshops and organize awareness programmes to sensitize authorities/managements/employers, employees and adolescent groups with the provisions of the Act, which shall be included in their annual calendar.

(vii) The National Judicial Academy and the State Judicial Academies shall include in their annual calendars, orientation programmes, seminars and workshops for capacity building of members of the ICCs/LCs/ICs established in the High Courts and District Courts and for drafting Standard Operating Procedures (SOPs) to conduct an inquiry under the Act and Rules.

(viii) A copy of this judgment shall be transmitted to the Secretaries of all the Ministries, Government of India who shall ensure implementation of the directions by all the concerned Departments, Statutory Authorities, Institutions, Organisations etc. under the control of the respective Ministries. A copy of the judgment shall also be transmitted to the Chief Secretaries of all the States and Union Territories who shall ensure strict compliance of these directions by all the concerned Departments. It shall be the responsibility of the Secretaries of the Ministries, Government of India and the Chief Secretaries of every State/Union Territory to ensure implementation of the directions issued.

(ix) The Registry of the Supreme Court of India shall transmit a copy of this judgment to the Director, National Judicial Academy, Member Secretary, NALSA, Chairperson, Bar Council of India and the Registrar Generals of all the High Courts. The Registry shall also transmit a copy of this judgment to the Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and the Engineering Council of India for implementing the directions issued.

(x) Member-Secretary, NALSA is requested to transmit a copy of this judgment to the Member Secretaries of all the State Legal Services Authorities. Similarly, the Registrar Generals of the State High Courts shall transmit a copy of this judgment to the Directors of the State Judicial Academies and the Principal District Judges/District Judges of their respective States.

(xi) The Chairperson, Bar Council of India and the Apex Bodies mentioned in sub-para (ix) above, shall in turn, transmit a copy of this judgment to all the State Bar Councils and the State Level Councils, as the case may be.

80. The Union of India and all States/UTs are directed to file their affidavits within eight weeks for reporting compliances. List after eight weeks.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2482 of 2014

Decided On: 12.05.2023

Aureliano Fernandes Vs. State of Goa and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and Hima Kohli, JJ.

Author: Hima Kohli, J.

Citation: AIR 2023 SC 2485,MANU/SC/0572/2023.

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Whether Unfair trial can be cured by fair appeal?

 It is then urged by learned Counsel for the appellant that the provision of an appeal under Section 22-A of the Act is a complete safeguard against any insufficiency in the original proceeding before the Council, and it is not mandatory that the member should be heard by the Council before it proceeds to record its finding. Section 22-A of the Act entitles a member to prefer an appeal to the High Court against an order of the Council imposing a penalty under Section 21(4) of the Act. It is pointed out that no limitation has been imposed on the scope of the appeal, and that an appellant is entitled to urge before the High Court every ground which was available to him before the Council. Any insufficiency, it is said, can be cured by resort to such appeal. Learned counsel apparently has in mind the view taken in some cases that an appeal provides an adequate remedy for a defect in procedure during the original proceeding. Some of those cases are mentioned in Sir William Wades erudite and classic work on "Administrative Law" But as that learned author observes, "in principle there ought to be an observance of natural justice equally at both stages", and if natural justice is violated at the first stage, the right of appeal is not so much a true right of appeal as a corrected initial hearing: instead of fair trial followed by appeal, the procedure is reduced to unfair trial followed by fair trial.

And he makes reference to the observations of Megarry J. in Leary v. National Union of Vehicle Builders [1971] 1 Ch. 34. Treating with another aspect of the point, that learned Judge said :

If one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of natural justice in the appellate body, this has the result of depriving the member of his right of appeal from the expelling body. If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeal is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him. I cannot think that natural justice is satisfied by a process whereby an unfair trial, though not resulting in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that natural justice does not mean perfect justice. As a general rule, at all events, I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.

The view taken by Megarry, J. was followed by the Ontario High Court in Canada in Re Cardinal and Board of Commissioners of Police of City of Cornwall [1974] 42 D.L.R. (3d) 323. The Supreme Court of New Zealand was similarly inclined in Wislang v. Medical Practioners Disciplinary Committee [1974] 1 N.Z.L.R. 29 and so was the Court of Appeal of New Zealand in Reid v. Rowley [1977] 2 N.Z.L.R. 472.

{Para 17}

18. But perhaps another way of looking at the matter lies in examining the consequences of the initial order as soon as it is passed. There are cases where an order may cause serious injury as soon as it is made, an injury not capable of being entirely erased when the error is corrected on subsequent appeal. For instance, as in the present case, where a member of a highly respected and publicly trusted profession is found guilty of misconduct and suffers penalty, the damage to his professional reputation can be immediate and far-reaching. "Not all the King's horses and all the King's men" can ever salvage the situation completely, notwithstanding the widest scope provided to an appeal. To many a man, his professional reputation is his most valuable possession. It affects his standing and dignity among his fellow members in the profession, and guarantees the esteem of his clientele. It is often the carefully garnered fruit of a long period of scrupulous, conscientious and diligent industry. It is the portrait of his professional honour. In a world said to be notorious for its blase attitude towards the noble values of an earlier generation, a man's professional reputation is still his most sensitive pride. In such a case, after the blow suffered by the initial decision, it is difficult to contemplate complete restitution through an appellate decision. Such a case is unlike an action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation. And, therefore, it seems to us, there is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceeding.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1911 and1912 of 1980

Decided On: 21.10.1986

 Institute of Chartered Accountants of India Vs. L.K. Ratna and Ors.

Hon'ble Judges/Coram:

R.S. Pathak and Sabyasachi Mukherjee, JJ.

Author: R.S. Pathak, J.

Citation: MANU/SC/0083/1986

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Whether public authorities are bound to follow principles of natural justice while terminating a contract as per the terms of the agreement?

 In M/s Radhakrishna Agarwal Vs. State of Bihar, (1977) 3 SCC

457, it is held that in case of enforcement of contractual rights and liabilities the normal remedy of filing a civil suit is available to the aggrieved party and, therefore, the High Court will not exercise its prerogative writ jurisdiction to enforce such contractual obligation. In M/s Radhakrishna Agarwal (supra) it

is further held that a question of the distinction between an administrative and quasi-judicial decision can only arise in the exercise of powers under statutory provisions. Rules of natural justice are attached to the performance of certain functions regulated by statutes or rules made thereunder involving decisions affecting rights of parties. When a contract is sought to be terminated by the Officers of the State, purporting to act under the terms of an agreement between parties, such action is not taken in purported exercise of a statutory power at all. The limitations imposed by rules of natural justice cannot operate upon powers which are governed by the terms of an agreement exclusively. Thus in view of settled legal position, I am of the view that the petitioner is not even entitled to admission of this petition as issuance of notice being not a binding precedent applicable to invoke doctrine of 'stare decisis', and the order passed by the Hon'ble Division Bench being in different arena, no indulgence is required as petitioner has an alternative remedy of approaching the civil court if there is no arbitration clause in the agreement and if there is an arbitration clause then he has a duty to approach the arbitrator in terms of the arbitration clause in the agreement.

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

WRIT PETITION No. 21169 of 2022

M/S KESHAV KANSHKAR  Vs THE PRINCIPAL SECRETARY DEPARTMENT OF ENERGY MANTRALAYA VALLABH BHAWAN

BEFORE

HON'BLE SHRI JUSTICE VIVEK AGARWAL

Dated:  20th OF SEPTEMBER, 2022.

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Whether party can claim that principles of natural justice are violated if he is not permitted by arbitrator to cite one caselaw?

 The only question that remains to be addressed is whether the principles of natural justice were violated and RVNL was prevented from contesting the claims made by Simplex. It is pertinent to note that on 04.11.2020, the counsel appearing for RVNL had made oral submissions before the Arbitral Tribunal and during the course of the said proceedings, he had sought to refer to the decision of the Supreme Court in (Sethi Auto Service Station v. DDA : (2009) 1 SCC 180). This was objected to, as the hearing before the Arbitral Tribunal had been concluded and the parties had also filed their written submissions. The said decision was not referred to by RVNL in its submission made earlier or in the written submissions. Since one of the members of the Arbitral Tribunal had expired after the hearings were concluded, the vacancy caused had been filled by the appointment of another Arbitrator. In the circumstances, the Arbitral Tribunal with the consent of parties, decided that the counsels shall be afforded an opportunity to make oral submissions spanning over three hours each. This was to enable them to once again submit their case for the benefit of the learned Arbitrator who had been appointed to fill up the vacancy caused by the demise of the Arbitrator appointed earlier. Concededly, the counsels were required to confine themselves to the submissions already made. However, the learned counsel for RVNL now desired to cite another judgment, which was not cited earlier and thus, was prevented from doing so. The decision of the Arbitral Tribunal to not consider the judgment cited by the counsel for RVNL cannot be held to be violative of the principles of natural justice. Undisputedly, RVNL was provided full opportunity to contest the claims made by Simplex. The counsels were not only heard extensively but were also permitted to file written submissions. In this view, the contention that the impugned award is vitiated as RVNL was not afforded full opportunity to contest the claims made by Simplex or to advance its counter-claims, is unpersuasive.{Para 42}

 In the High Court of Delhi at New Delhi

(Before Vibhu Bakhru, J.)

Rail Vikas Nigam Limited Vs Simplex Infrastructures Limited 

O.M.P. (COMM) 183/2021 and I.A. 7631/2021

Decided on September 29, 2021

Citation: 2021 SCC OnLine Del 4556

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Whether court can set aside an order of demolition if one officer of Municipal Corporation has heard the petitioner and another officer has passed the order without hearing him?

 Learned counsel for the petitioner submits that apart from the fact that his documents were not considered solely on the ground that some of the documents i.e. lease deeds were unregistered, he submits that the order passed by the Assistant Engineer dated 21.09.2020 was in breach of principles of natural justice, in as much as, the officer who granted a hearing to the petitioner on 20.02.2019 is not the officer who has passed the order and the officer who has passed the order is not the one who even heard the petitioner at any point of time during the said proceedings.

4. Since the officer who had heard the petitioner is not the one who had passed the order and the officer who has passed the order is not the onewho even heard the petitioner, prima facie, I am of the view that this order is not sustainable.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

CM(M) 500/2020

SUDESH KUMAR  Vs SOUTH DELHI MUNICIPAL CORPORATION

HON’BLE MR. JUSTICE SANJEEV SACHDEVA

CORAM:- SANJEEV SACHDEVA, J. (ORAL)

Judgment delivered on: 22.12.2020

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What are the powers of the high court in the challenge of disciplinary action against an employee?

 In Union of India v. P. Gunasekaran8, this Court held as follows : (SCC pp. 616-17, paras 12-13)

“12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience.”

 In the High Court of Jharkhand at Ranchi

(Before Deepak Roshan, J.)

W.P.(S) No. 4120 of 2014

Balwant Singh V   Union of India 

Citation: 2020 SCC OnLine Jhar 889

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Leading Supreme court Judgment on the obligation of disciplinary authority to furnish enquiry report to delinquent in the departmental enquiry

 This group of matters is at the instance of various parties, viz., Union of India, Public Sector Corporations, Public Sector banks, State Governments and two private parties. By an order dated 5th August, 1991 in Managing Director, Electronic Corporation of India v. B.Karunakar MANU/SC/0474/1992 : (1992)1SCC709 , a three Judge Bench of this Court referred that matter to the Chief Justice for being placed before a Larger Bench, for the Bench found a conflict in the two decisions of this Court, viz., Kailash Chander Asthana etc. etc. v. State of U.P. and Ors. etc. etc. MANU/SC/0221/1988 : (1988)IILLJ219SC , and Union of India and Ors. etc. etc. v. Mohd. Ramzan Khan MANU/SC/0124/1991 : (1991)ILLJ29SC both delivered by the Benches of three learned Judges. Civil Appeal No. 3056 of 1991 arising out of SLP (Civil) No. 12103 of 1991 along with the other matters in which the same question of law is in issue, has therefore, been referred to this Bench.

2. The basis question of law which arises in these matters is whether the report of the Inquiry Officer/authority who/which is appointed by the disciplinary authority to hold an inquiry into the charges against the delinquent employee, is required to be furnished to the employee to enable him to make proper representation to the disciplinary authority before such authority arrives at its own finding with regard to the guilt or otherwise of the employee and the punishment, If any, to be awarded to him. This question in turn gives rise to the following incidental questions:

(i) Whether the report should be furnished to the employee even when the statutory rules laying down the procedure for holding the disciplinary inquiry are silent on the subject or are against it?

(ii) Whether the report of the Inquiry Officer is required to be furnished to the delinquent employee even when the punishment imposed is other than the major punishment of dismissal, removal or reduction in rank?

(iii) Whether the obligation to furnish the report is only when the employee asks for the same or whether it exists even otherwise?

(iv) Whether the law laid down in Mohd. Ramzan Khan's case (Supra) will apply to all establishments - Government and non-Government, public and private sector undertakings,

(v) What is the effect of the non-furnishing of the report on the order of punishment and what relief should be granted to the employee in such cases?

(vi) From what date the law requiring furnishing of the report, should come into operation?

(vii) Since the decision in Ramzan Khan's case (supra) has made the law laid down there prospective in operation, i.e., applicable to the orders of punishment passed after 20th November, 1990 on which day the said decision was delivered, this question in turn also raises another question, viz., what was the law prevailing prior to 20th November, 1990?

Hence the incidental question raised above may be answered as follows:

(i) Since the denial of the report of the Inquiry Officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject.

(ii) The relevant portion of Article 311(2) of the Constitution is a follows:

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

Thus the Article makes it obligatory to hold an inquiry before the employee is dismissed or removed or reduced in rank. The Article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. What is further, Article 311(2) applies only to members of the civil services of the Union or an all-India service or a civil service of a State or to the holders of the civil posts under the Union or a State. In the matter of all punishments both Government servants and others are governed by their service rules. Whenever, therefore, the service rules contemplate an inquiry before a punishment is awarded, and when the Inquiry Officer is not the disciplinary authority the delinquent employee will have the right to receive the Inquiry Officer's report notwithstanding the nature of the punishment.

(iii) Since it is the right of the employee to have the report to defend himself effectively, and he would not known in advance whether the report is in his favour or against him, it will not be proper to construe his failure to ask for the report, as the waiver of his right. Whether, therefore, the employee asks for the report or not, the report has to be furnished to him.

(iv) In the view that we have taken, viz., that the right to make representation to the disciplinary authority against the findings recorded in the inquiry report is an integral part of the opportunity of defence against the charges and is a breach of principles of natural justice to deny the said right, it is only appropriate that the law laid down in Mohd. Ramzan Khan's case (supra) should apply to employees in all establishments whether Government or non-Government, public or private. This will be the case whether there are rules governing the disciplinary proceeding or not and whether they expressly prohibit the furnishing of the copy of the report or are silent on the subject. Whether the nature of punishment, further, whenever the rules require an inquiry to be held, for inflicting the punishment in question, the delinquent employee should have the benefit of the report of the Inquiry Officer before the disciplinary authority records its findings on the charges levelled against him. Hence question (iv) is answered accordingly.

(v) The next question to be answered is what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Since to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice is a mechanical ritual the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice.

Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, The Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment the Courts/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Court/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate of revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity.

It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment.

Where after following the above procedure, the Court/Tribunal sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report.

The question whether the employee would be entitled to the back-wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. If the employee succeeds in the fresh inquiry and is directed to be reinstated, the authority should be at liberty to decide according to law how it will treat the period from the date of dismissal till the reinstatement and to what benefits, if any and the extent of the benefits, he will be entitled. The reinstatement made as a result of the setting aside of the inquiry for failure to furnish the report, should be treated as a reinstatement for the purpose of holding the fresh inquiry from the stage of furnishing the report and no more, where such fresh inquiry is held. That will also be the correct position in law.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3056 of 1991

Decided On: 01.10.1993

Managing Director, ECIL, Hyderabad  Vs.  Karunakar and Ors.

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Whether University can take adverse action against law student without following principles of natural justice?

Petitioner who joined the Five Year B.A. LL.B (Hons.)

Course in the respondent – University from the Academic

Year 2017-18, is declared to have secured “F Grade” in

Child Rights Law examination held on 13.03.2020 since he

was not given any mark because of alleged plagiarism of

the Project Work in question; he was also not allowed to

take Special Repeat Examination of third trimester in the

third year, allegedly in breach of assurance of the

University.

The entire episode of so called ‘plagiarism’ is

framed on the basis of a few notoriously cryptic mails

exchanged between the Course Teacher and the Exam

Department, detrimentally keeping the petitioner in

darkness.

 What intrigues this Court is about the enormity

of unfair treatment which the petitioner was meted out at

the hands of a Law University, in a serious matter like this;

it is anguishing that the University did not afford an

opportunity of personal hearing despite his written

request vide mail of 02.03.2020 at Annexure-R5 to the

S.O.; in Biblical literature, even God is said to have given

an opportunity of hearing to Adam & Eve before punishing

them for consuming the proscribed fruit, in the Eden

Garden; which heavens would have fallen down, had a

reasonable opportunity of personal hearing been afforded,

remains as a mystery rapped in enigma; after all,

procedural fairness is a constitutional mandate when the

answering respondent is an instrumentality of the “State”

under Article 12 of the Constitution; it is high time that

this University of national repute be reminded that it is

dealing with our children and not others’ chattel; and,

IN THE HIGH COURT OF KARNATAKA, BENGALURU

BEFORE

THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

WRIT PETITION NO. 9395 OF 2020 (EDN-RES)

BETWEEN:

SRI HRUDAY. P B Vs  THE VICE CHANCELLOR, THE NATIONAL LAW SCHOOL OF INDIA UNIVERSITY,

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Whether non-observance of principles of natural justice will invalidate the proceeding?

 An analysis of the aforesaid judgments thus reveals:

(1)Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.

(2)Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.

(3)No prejudice is caused to the person complaining of the breach of

natural justice where such person does not dispute the case against

him or it. This can happen by reason of estoppel, acquiescence,

waiver and by way of non-challenge or non-denial or admission of

facts, in cases in which the Court finds on facts that no real prejudice

can therefore be said to have been caused to the person complaining

of the breach of natural justice.

(4)In cases where facts can be stated to be admitted or indisputable,

and only one conclusion is possible, the Court does not pass futile

orders of setting aside or remand when there is, in fact, no prejudice

caused. This conclusion must be drawn by the Court on an appraisal

of the facts of a case, and not by the authority who denies natural

justice to a person.

(5)The “prejudice” exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice.{Para 39}

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3498 OF 2020

STATE OF U.P. Vs SUDHIR KUMAR SINGH 

Author: R.F. Nariman, J.

Dated: 16th October 2020.

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How to prove the statement of delinquent recorded in preliminary enquiry?

Learned counsel for the State argued that the petitioner is not entitled to any relief only on the technical ground of non-supply of documents unless it is shown as to what prejudice was caused to the petitioner in his defence. It is contended that the petitioner, during preliminary enquiry, had given a statement on 7.9.1991 in which he admitted that he had interpolated the official records in order to mislead the authority and created an evidence of felling of trees which were otherwise illegally felled and transported away from the forest area. In his reply to charge sheet, the petitioner nowhere stated that he had never given any such statement of admission of his gilt on 7.9.1991 and he only gave evasive denial of charges against him. It is further submitted that all relevant documents as stated in Sr. No. 1 of his application dated 30.4.1992 were supplied to him and remaining documents demanded by the petitioner were not relevant to the charges because the charge No. 1 was not found proved against the petitioner and charge No. 2 was found proved on the basis of petitioner's own statement dated 7.9.1991 recorded during preliminary enquiry prior to issuance of charge sheet, which the petitioner did not dispute but only sought to justify at a later stage and not at the first instance while submitting his reply to the charge sheet. Once the petitioner had admitted having interpolated the records, the other ground of violation of principle of nature justice would not come to his aid and the enquiry cannot be said to be vitiated.

 A perusal of the enquiry report and the order of the Disciplinary Authority would at once reveal that the statement of Kishan Lal Sonwani, Kamta Ram Sahu as also pre-recorded statement of the petitioner himself was made a basis to sustain the charge No. 2 proved against him that he, acting in concert with Cherpa Gopal and Kishal Lal Sonwani, tampered the official record. As a matter of fact, the so called pre-recorded statement of the petitioner was used as an admission of the guilt by the petitioner. But this document was never supplied to the petitioner despite demand. This was the most crucial documents because the Enquiry Officer as well as the Disciplinary Authority both have heavily relied upon this document to hold charge No. 2 proved against the petitioner. The petitioner in his memo of appeal and even before this Court has taken a categoric stand that he was coerced to put signature on certain documents. Whether or not the petitioner would not been able to make out his defence, on this aspect, is one thing, but it can certainly be concluded that non-supply of this crucial documents seriously prejudiced the petitioner. It would not out of place to mention here that so called statement of the petitioner was not even proved by examining the officer who is alleged to have recorded the said statement. Therefore, serious prejudice on account of non-supply of statement is writ large on the fact of it.{Para 24}

 IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR

WPS No. 935 of 2005

Decided On: 31.10.2017

Dhanpati Barik Vs. State of Madhya Pradesh and Ors.

Hon'ble Judges/Coram:

Manindra Mohan Shrivastava, J.

Dated:MANU/CG/0595/2017

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Whether court can convict accused of an offence U/S 304B of IPC if he was charged only under S 302 of IPC?

Be that as it may. The question raised before us is whether in a case where prosecution failed to prove the charge under Section 302 IPC, but on the facts the ingredients of section 304B have winched to the fore, can the court convict him of that offence in the absence of the said offence being included in the charge.{Para 14}

15. Sections 221 and 222 of the Code are the two provisions dealing with the power of a criminal court to convict the accused of an offence which is not included in the charge. The primary condition for application of section 221 of the Code is that the court should have felt doubt, at the time of framing the charge, as to which of the several acts (which may be proved) will constitute the offence on account of the nature of the acts or series of acts alleged against the accused. In such a case the section permits "to convict the accused" of the offence of which he is shown to have committed though he was not charged with it." But in the nature of the acts alleged by the prosecution in this case there was absolutely no scope for any doubt regarding the offence under Section 302 IPC, at least at the time of framing the charge.

16. Section 222(1) of the Code deals with a case "when a person is charged with an offence consisting of several particulars". The Section permits the court to convict the accused "of the minor offence, though he was not charged with it." Sub-section (2) deals with a similar, but slightly different, situation. "When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it."

17. What is meant by "a minor offence" for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence.

18. The composition of the offence under Section 304B IPC is vastly different from the formation of the offence of murder under Section 302 IPC and hence the former cannot be regarded as minor offence vis-a-vis the latter. However, the position would be different when the charge also contains the offence under Section 498A IPC (Husband or relative of husband of a women subjecting her to cruelty). As the word "cruelty" is explained as including, inter alia, "harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

19. So when a person is charged with an offence under Sections 302 and 498A IPC on the allegation that he caused the death of a bride after subjecting her to harassment with a demand for dowry, within a period of 7 years of marriage, a situation may arise, as in this case, that the offence of murder is not established as against the accused. Nonetheless all other ingredients necessary for the offence under Section 304B IPC would stand established. Can the accused be convicted in such a case for the offence under Section 304B IPC without the said offence forming part of the charge?

22. The crux of the matter is this: Would there be occasion for a failure of justice by adopting such a course as to convict an accused of the offence under Section 304B IPC when all the ingredients necessary for the said offence have come out in evidence, although he was not charged with the said offence? In this context a reference to Section 464(1) of the Code is apposite:

"No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby." (emphasis supplied)

23. In other words, a conviction would be valid even if there is any omission or irregularity in the charge, provided it did not occasion a failure of justice.

24. We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression "failure of justice" would appear, sometimes, as an etymological chameleon (The simile is borrowed from Lord Diplock in Town Investments Ltd. vs. Department of the Environment 1977(1) A E R 813. The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage.

25. One of the cardinal principles of natural justice is that no man should be condemned without being heard, ("Audi alteram partem"). But the law reports are replete with instances of courts hesitating to approve the contention that failure of justice had occasioned merely because a person was not heard on a particular aspect. However, if the aspect is of such a nature that non-explanation of it has contributed to penalising an individual, the court should say that since he was not given the opportunity to explain that aspect there was failure of justice on account of non-compliance with the principle of natural justice.

26. We have now to examine whether, on the evidence now on record the appellant can be convicted under Section 304B IPC without the same being included as a count in the charge Section 304B has been brought on the statute book on 9-11-1986 as a package along with Section 113B of the Evidence Act. Section 304B(1) IPC reads thus:

"304-B. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death."

27. In the Explanation to the Section it is said that the word "dowry" shall be understood as defined in the Dowry Prohibition Act, 1961.

28. The postulates needed to establish the said offence are: (1) Death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading section 113B of the Evidence Act, as a part of the said offence, the position is this: If the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances "the court shall presume that such person had caused dowry death."

29. Under Section 4 of the Evidence Act "whenever it is directed by this Act that the Court shall presume the fact it shall regard such fact as proved unless and until it is disproved." So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the court. However it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross-examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both.

30. Section 113A of the Evidence Act says that under certain conditions, almost similar to the conditions for dowry death "the court may presume having regard to the circumstances of the case, that such suicide has been abetted by her husband etc." When the law says that the court may presume the fact, it is discretionary on the part of the court either to regard such fact as proved or not to do so, which depends upon all the other circumstances of the case. As there is no compulsion on the court to act on the presumption the accused can persuade the court against drawing a presumption adverse to him.

31. But the peculiar situation in respect of an offence under Section 304B IPC, as discernible from the distinction pointed out above in respect of the offence under Section 306 IPC is this: Under the former the court has a statutory compulsion, merely on the establishment of two factual positions enumerated above, to presume that the accused has committed dowry death. If any accused wants to escape from the said catch the burden is on him to disprove it. If he fails to rebut the presumption the court is bound to act on it.

32. Now take the case of an accused who was called upon to defend only a charge under Section 302 IPC. The burden of proof never shifts on to him. It ever remains on the prosecution which has to prove the charge beyond all reasonable doubt. The said traditional legal concept remains unchanged even now. In such a case the accused can wait till the prosecution evidence is over and then to show that the prosecution has failed to make out the said offence against him. No compulsory presumption would go to the assistance of the prosecution in such a situation. If that be so, when an accused has no notice of the offence under Section 304B IPC, as he was defending a charge under Section 302 IPC alone, would it not lead to a grave miscarriage of justice when he is alternatively convicted under Section 304B IPC and sentenced to the serious punishment prescribed thereunder, which mandates a minimum sentence of imprisonment for seven years.

33. The serious consequence which may ensue to the accused in such a situation can be limned through an illustration:- If a bride was murdered within seven years of her marriage and there was evidence to show that either on the previous day or a couple of days earlier she was subjected to harassment by her husband with demand for dowry, such husband would be guilty of the offence on the language of Section 304B IPC read with Section 113B of the Evidence Act. But if the murder of his wife was actually committed either by a decoit or by a militant in a terrorist act the husband can lead evidence to show that he had no hand in her death at all. If he succeeds in discharging the burden of proof he is not liable to be convicted under Section 304B, IPC. But if the husband is charged only under Section 302 IPC he has no burden to prove that his wife was murdered like that as he can have his traditional defence that the prosecution has failed to prove the charge of murder against him and claim an order of acquittal.

34. The above illustration would amplify the gravity of the consequence befalling an accused if he was only asked to defend a charge under Section 302 IPC and was alternatively convicted under Section 304B IPC without any notice to him, because he is deprived of the opportunity to disprove the burden cast on him by law.

35. In such a situation, if the trial court finds that the prosecution has failed to make out the case under Section 302 IPC, but the offence under Section 304B IPC has been made out, the court has to call upon the accused to enter on his defence in respect of the said offence. Without affording such an opportunity to the accused, a conviction under Section 304B IPC would lead to real and serious miscarriage of justice. Even if no such count was included in the charge, when the count affords him an opportunity to discharge his burden by putting him to notice regarding the prima facie view of the court that he is liable to be convicted under Section 304B IPC, unless he succeeds in disproving the presumption, it is possible for the court to enter upon a conviction of the said offence in the event of his failure to disprove the presumption.

36. As the appellant was convicted by the High Court under Section 304B IPC, without such opportunity being granted to him, we deem it necessary in the interest of justice to afford him that opportunity. The case in the trial court should proceed against the appellant (not against the other two accused whose acquittal remains unchallenged now) from the stage of defence evidence. 

IN THE SUPREME COURT OF INDIA

Appeal (crl.) 907 of 1998

Decided On: 24.01.2001

Shamnsaheb M. Multtani Vs  State of Karnataka

Hon'ble Judges/Coram:

K.T. Thomas, R.P. Sethi and B.N. Agrawal, JJ.

Citation: Citation : AIR 2001 SC 921,(2001) 2 SCC 577, MANU/SC/0047/2001

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