judgement:
ition No. 4349 of 1980.
(Under Article 32 of the Constitution.) 354 M/s. Ram Jethmalani, Anil Dewan, Harjinder Singh and section H. Sajanwala, for the Petitioner.
J. L. Nain, Sushil Kumar and M. N. Shroff for the Respondents.
The Judgment of the Court was delivered by SARKARIA, J.
By our order dated October 3, 1980, we had allowed this writ petition for the issue of a writ of Habeas Corpus and directed the release of the detenu.
We are now giving the reasons in support of that order.
On January 30, 1980, the petitioner, Lallubhai Jogibhai Patel was served with an order of detention, dated January 30, 1980, passed by Shri P. M. Shah, Deputy Secretary to the Government of Gujarat (Home Department) under Section 3 of the (for short, the COFEPOSA).
The grounds of detention were also served on him on the same day.
The petitioner challenged the order of his detention by Writ Petition No. 449 of 1980 in this Court.
That petition was dismissed by this Court by an order dated May 9, 1980, but the reasons for that order were announced later on August 4, 1980.
After the dismissal of his petition, he on July 21, 1980, filed additional grounds.
He was on July 30, 1980, informed that he may, if so advised, file a fresh petition on those additional grounds.
That is how this subsequent petition came to be filed on additional grounds which were not urged in the previous Writ Petition 449 of 1980.
A preliminary objection was raised on behalf of the respondent State that this subsequent petition is barred as constructive res judicata.
In this connection, reference has been made to the decision of this Court in Ghulam Sarwar vs Union of India & Ors.
and Seervai 's Constitutional Law.
In reply, Shri Ram Jethmalani, counsel for the petitioner, contended that this Court cannot refuse to entertain a second petition for habeas corpus on a fresh ground which could not, for good reasons, be taken in the earlier writ petition, on the ground that it is barred by any doctrine of estoppel or constructive res judicata.
It is stressed that a preventive detention illegally continued is a continuous wrong and furnishes a continuous cause of action to the detenu to challenge the same on fresh grounds.
In this connection, reference has been 355 made to a Full Bench decision of the Punjab High Court in Ram Kumar Pearay Lal vs District Magistrate, Delhi.
On facts, counsel has tried to distinguish the decisions of this Court in Daryao vs State of Uttar Pradesh and Niranjan Singh vs State of Madhya Pradesh.
The preliminary question, therefore, to be considered is, whether the doctrine of constructive res judicata applies to a subsequent petition for a writ of habeas corpus on a ground which he "might and ought" to have taken in his earlier petition for the same relief.
In England, before the Judicature Act, 1873, an applicant for habeas corpus had a right to go from court to court, but not from one Bench of a court to another Bench of the same Court.
After the Judicature Act, 1873, this right was lost, and no second application for habeas corpus can be brought in the same court, except on fresh evidence.
In re Hastings (No. 3) Lord Parker, C.J., after surveying the history of the right of habeas corpus, arrived at the conclusion that it was never the law that in term time, successive writs of habeas corpus lay from Judge to Judge.
In re Hostings (No. 4).
Harman, J. pointed out that since the Judicature Act had abolished the three independent courts, namely, the Court of Exchequer, the King 's Bench Division, and the Common Pleas, and had constituted one High Court, when an application for writ of habeas corpus has been disposed of by one Divisional Court, no second application on the same ground lies to another Divisional Court of the High Court.
This position was given statutory recognition in the Administration of Justice Act, 1960.
In a Full Bench decision of the Punjab High Court, which purports to follow these English decisions and two decisions of this Court in Daryao vs State of U.P. (ibid) and Calcutta Gas Co. (Proprietary) Ltd. vs State of West Bengal, it was held as follows: "No second petition for writ of habeas corpus lies to the High Court on a ground on which a similar petition had already been dismissed by the Court.
However, a second such petition will lie when a fresh and a new ground of attack against the legality of detention or custody has arisen after the decision on the first petition, and also where for some exceptional reason a ground has been omitted in an earlier 356 petition, in appropriate circumstances, the High Court will hear the second petition on such a ground for ends of justice.
In the last case, it is only a ground which existed at the time of the earlier petition, and was omitted from it, that will be considered.
Second petition will not be competent on the same ground merely because an additional argument is available to urge with regard to the same.
" In Daryao 's case (ibid), Gajendragadkar, J. (as he then was), speaking for the Constitution Bench, held that where the High Court dismisses a writ petition under Article 226 of the Constitution after hearing the matter on the merits on the ground that no fundamental right was proved or contravened or that its contravention was constitutionally justified, a subsequent petition to the Supreme Court under Article 32 of the Constitution on the same facts and for the same reliefs filed by the same party would be barred by the general principle of res judicata.
It was further clarified that the rule of res judicata, as indicated in Section 11 of the Code of Civil Procedure, has no doubt some technical aspects, for instance, the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy.
It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation.
If these two principles form the foundation of the general rule of res judicata, they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.
It was also noted that the liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitution, and it is the privilege and the duty of this Court to uphold those rights.
Though a right is given to the citizen to move this Court by a petition under Article 32 and to claim an appropriate writ against the unconstitutional infringement of his fundamental rights, yet, in dealing with an objection based on the principle of res judicata may even apply to a successive petition.
The Court was careful enough to add: "We propose to express no opinion on the question as to whether repeated applications for habeas corpus would be competent under our Constitution.
That is a matter with which we are not concerned in the present proceedings".
It may be noted that the petitions which were before the Court in Daryao 's case were civil matters and not petitions for issue of a writ of habeas corpus.
Even so, it was clarified in that case that the 357 principle of constructive res judicata, as embodied in Section 11 of the Code of Civil Procedure, was of a technical character and this principle was not one of universal application.
In Ghulam Sarwar 's case (ibid), the Constitution Bench of this Court was dealing with a petition under Article 32 of the Constitution which had raised the question of the validity of the detention of the petitioner under Section 3 of the .
The petitioner was a Pakistani national, who entered India without any travel documents.
On May 8, 1964, he was arrested in New Delhi by the Customs Authorities under Section 135 of the .
When he was about to be enlarged on bail, he was detained by an order under Section 3(2)(g) of the .
It was said that he had to be detained, as police investigation was in progress in respect of a case of conspiracy to smuggle gold, of which he was a member.
On May 29, 1965, he was convicted by the Magistrate, of an offence under the and sentenced to imprisonment.
His appeal was dismissed by the Sessions Judge.
Before his term of imprisonment expired, the petitioner filed a writ of habeas corpus in the Circuit Bench of the Punjab High Court, challenging his detention.
The petition was dismissed by Khanna, J., on merits.
Before the learned Judge, the constitutional validity of Section 3(2) (g) of the Act was not canvassed.
The learned Judge held that the section authorised the Government to make the said order of detention on its subjective satisfaction and that the Court could not question its validity in the absence of any mala fides.
In short, he dismissed the petition on merits.
Thereafter, Ghulam Sarwar filed a petition under Article 32 of the Constitution for issue of a writ of habeas corpus against the respondent on the ground that the provisions of the Act were invalid.
On behalf of the respondents, a preliminary objection was raised that the decision of Khanna, J. of the Punjab High Court operated as res judicata and barred the maintainability of the subsequent petition under Article 32.
Reliance was placed on the decision of this Court in Daryao 's case.
After observing that Daryao 's case was no authority in regard to the repeated applications for habeas corpus, and examining English and American decisions, the learned Chief Justice (Mr. Justice Subba Rao) summed up the position, thus: "But unlike in England, in India the person detained can file original petition for enforcement of his fundamental right to liberty before a court other than the High Court, namely, this Court.
The order of the High Court in the said writ is not res judicata as held by the English and the 358 American Courts either because it is not a judgment or because the principle of res judicata is not applicable to a fundamentally lawless order.
If the doctrine of res judicata is attracted to an application for a writ of habeas corpus, there is no reason why the principle of constructive res judicata cannot also govern the said application, for the rule of constructive res judicata is only a part of the general principle of the law of res judicata, and if that be applied, the scope of the liberty of an individual will be considerably narrowed.
The present case illustrates the position.
Before the High Court, the petitioner did not question the constitutional validity of the President 's order made under Article 359 of the Constitution.
If the doctrine of constructive res judicata be applied, this Court, though it is enjoined by the Constitution to protect the right of a person illegality detained, will become powerless to do so.
That would be whittling down the wide sweep of the constitutional protection, On these premises, it was held "that the order of Khanna, J., made in the petition for habeas corpus filed by the petitioner does not operate as res judicata and this Court will have to decide the petition on merits".
In his concurring judgment, Bachawat, J., while holding that the order of dismissal by the High Court does not operate as res judicata and does not bar the petition under Article 32 of this Court, asking for the issue of a writ of habeas corpus on the same facts, clarified that the petitioner would not have the right to move this Court under Article 32 more than once on the same facts.
In Niranjan Singh 's case (supra), the District Magistrate of Gwalior by his order dated May 26, 1971, passed under Section 2A of the Madhya Pradesh Public Security (Amendment Act) of 1970, detained the petitioner.
The petitioner filed a writ petition under Article 226 of the Constitution, challenging his detention and praying for a writ of habeas corpus.
The petition was rejected by the High Court.
Thereupon, the detenu moved this Court by a petition under Article 32 of the Constitution, for the same relief.
A preliminary objection was taken on behalf of the respondent that the petition was barred by res judicata.
Following the earlier decision of this Court in Ghulam Sarwar 's case (ibid).
Jaganmohan Reddy, J., speaking for a Bench of two learned Judges, over ruled this objection.
359 The position that emerges from a survey of the above decisions is that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings.
This principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Article 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief.
In the present petition fresh additional grounds have been taken, to challenge the legality of the continued detention of the detenu.
We would therefore hold that the subsequent writ petition is not barred as res judicata and over rule the preliminary objection raised by the respondents.
The additional grounds which have been pressed into arguments by Shri Ram Jethmalani, are: (1) The respondents failed to supply despite the request of the detenu, all the documents which were relied upon by the detaining authority while passing the order of his detention, that the detaining authority purported to give him 460 documents, but later on, the detenu discovered that their number was less and many of them were either incomplete or had been wholly withheld; that in particular 236 documents covering 236 pages were not supplied.
This is alleged in ground No. 13 of the present petition.
In reply to this, in para 17 of the counter affidavit filed on behalf of the respondents, it is admitted that all the documents had not been given to the detenu, and he had been supplied enough documents which were thought to be sufficient to enable him to make an effective representation.
The petitioner came to know about the non supply of these documents from the copy of the judgment, dated May 13, 1980, of the Gujarat High Court passed in the allied writ petitions filed on behalf of other detenus who were alleged to be the associates of the present petitioner.
(2) On July 17, 1980, a representation was made on behalf of the detenu with a request that the same be forwarded to the Central Government for exercise of its power of revocation of the detention under Section 11 of the Act.
The Jailor forwarded that representation to the Central Government on July 18, 1980, but the same has not yet been disposed of.
This plea is the subject of grounds 16, 17 and 26 of the Writ Petition.
360 A reply to these allegations is to be found in paragraphs 20 and 21 of the counter filed on behalf of the respondents, wherein it is admitted that the jailor has sent the representation at the detenu 's request to the Central Govt.
(3) The grounds served on the detenu were in English.
The detenu does not know English.
It is stated in the affidavit of the person who served the 'grounds ' that they were explained to the detenu in Gujarati which is the mother tongue of the detenu.
Admittedly, no translation into Gujarati of the grounds of detention was given to the detenu on March 11, 1980.
This being the case there was a breach of the constitutional imperative which requires that the grounds should be communicated to the detenu.
It can be spelled out therefrom that the grounds must be communicated in a language which the detenu understands.
In support of this contention, reference has been made to Haribandhu Das vs District Magistrate, Cuttack & Anr.
and the judgment dated June 23, 1980 in Bakshi 's case.
Contention No. (1): In the previous petition, though it was alleged that there was delay in supply of copies of the documents relied on by the detaining authority in passing the impugned order of detention, no specific ground was taken that documents covering about 236 pages which were relied upon by the detaining authority in passing the order of detention, were suppressed and not supplied to the petitioner.
Indeed this is not denied in the counter affidavit.
The petitioner has affirmed in his affidavit that he came to know about the non supply of these documents from the judgment of the Gujarat High Court subsequently to the dismissal of his earlier petition.
This affirmation remains unchallenged.
A catena of decisions of this Court has firmly established the rule that one of the constitutional imperatives embodied in Article 22(5) of the Constitution is that all the documents and materials relied upon by the detaining authority in passing the order of detention must be supplied to the detenu, as soon as practicable, to enable him to make an effective representation.
Recently, in Smt.
Icchu Devi Choraria vs Union of India & Ors.
, this Court reiterated the principle as follows: "One of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must, as soon as may be, communicate to the detenu the grounds 361 on which the order of detention has been made and under sub section (3) of Section 3 of the COFEPOSA Act, the words "as soon as may be" have been translated to mean "ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention.
" The grounds of detention must therefore be furnished to the detenu ordinarily within five days from the date of detention, but in exceptional circumstances and for reasons to be recorded in writing, the time for furnishing the grounds of detention may stand extended but in any event it cannot be later than fifteen days from the date of detention.
These are the two outside time limits provided by Section 3, sub section (3) of the COFEPOSA Act because unless the grounds of detention are furnished to the detenu, it would not be possible for him to make a requirement against the order of detention and it is a basic requirement of clause, (5) of Article 22 that the detenu must be afforded the earliest opportunity of making a representation against his detention.
If the grounds of detention are not furnished to the detenu within five or fifteen days, as the case may be, the continued detention of the detenu would be rendered illegal both on the ground of violation of clause (5) of Article 22 as also on the ground of breach of requirement of Section 3 sub section (3) of the COFEPOSA Act.
Now it is obvious that when clause (5) of Article 22 and sub section (3) of Section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu, if there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete with them.
It would not therefore be sufficient to communicate the detenu a bare recital of the grounds of detention, but of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order 362 to constitute compliance with clause (5) of Article 22 and Section 3, sub section (3) of the COFEPOSA Act.
" In the instant case, the materials and documents which were not supplied to the detenu were evidently a part of those materials which had influenced the mind of the detaining authority in passing the order of detention.
In other words, they were a part of the basic facts and materials, and therefore, according to the ratio of Smt.
Icchu Devi 's case (ibid), should have been supplied to the detenu ordinarily within five days of the order of detention, and, for exceptional reasons to be recorded, within fifteen days of the commencement of detention.
In the counter affidavit, it has not been asserted that these documents, which were not supplied, were not relevant to the case of the detenu.
Contention (2) : The respondents have, in their counter affidavit, stated that this representation was not addressed to the Central Government.
It is, however, admitted that the Jailor had, on the request of the detenu, forwarded the same to the Central Government on July 18, 1980.
No counter affidavit has been filed on behalf of the Central Government, showing that this representation was considered and disposed of by it.
In matters touching the personal liberty of a person preventively detained, the constitutional imperative embodied in Article 22(5) is that any representation made by him should be dealt with utmost expedition.
This constitutional mandate has been honoured in breach regarding the representation sent by the detenu to the Central Government.
Contention (3) : It is an admitted position that the detenu does not know English.
The grounds of detention, which were served on the detenu, have been drawn up in English.
It is true that Shri C. L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating that he had fully explained the grounds of detention in Gujarati to the detenu.
But, that is not a sufficient compliance with the mandate of Article 22(5) of the Constitution, which requires that the grounds of detention must be "communicated" to the detenu.
"Communicate" is a strong word.
It means that sufficient knowledge of the basic facts constituting the 'grounds ' should be imparted effectively and fully to the detenu in writing in a language which he understands.
The whole purpose of communicating the 'ground ' to the detenu is to enable him to make a purposeful and effective representation.
If the 'grounds ' are only verbally 363 explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22(5) is infringed.
If any authority is needed on this point, which is so obvious from Article 22(5), reference may be made to the decisions of this Court in Harikishan vs State of Maharashtra: and Haribandhu Dass.
vs District Magistrate (ibid).
Thus all the three contentions canvassed by the counsel for the petitioner, on merits were sound.
The conclusion was therefore, inescapable that due to the aforesaid contraventions of constitutional imperatives, the continued detention of the detenu was illegal.
It was for these reasons that we had allowed Writ Petition (Crl.) No. 4349 of 1980 by our order dated October 3, 1980, and directed the release of the detenu.
P.B.R. Petition allowed.

summary/full:
After dismissal by this Court of the petition impugning the order of his detention under section 3 of the the petitioner filed the present petition urging additional grounds which were not urged in the previous petition.
He alleged that (i) despite his request for the supply of all the documents relied upon by the detaining authority while passing the order of detention the respondent failed to do so; (ii) that many of the documents were either incomplete or had been wholly withheld and in particular 236 documents out of 460 documents purported to have been supplied to him were not supplied; (iii) that though his representation dated July 17, 1980 for revocation of the detention order was forwarded by the jailer to the Central Government it had not been disposed of and (iv) that lastly serving the grounds of detention in English which is a language not known to him, without supplying a translation in his mother tongue, was a breach of the constitutional imperative embodied in article 22(5) and that for these reasons the order of detention should be held void.
A preliminary objection was raised on behalf of the respondent State that the present petition was barred as constructive res judicata.
Overruling the preliminary objection, ^ HELD: In the present petition fresh additional grounds had been taken by the detenu to challenge the legality of his continued detention.
Therefore the subsequent writ petition is not barred as res judicata.
[359 B C] 1.
By a long line of decisions this Court has held that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings.
This principle of public policy is entirely in applicable to illegal detentions and does not bar a subsequent petition for the writ of habeas corpus 353 under article 32 of the Constitution on fresh grounds which were not taken in the earlier petition for the same relief.
[359 A B] Ghulam Sarwar vs Union of India & Ors.
[1967] 2 S.C.R. 271, Daryao vs State of Uttar Pradesh A.I.R. 1961 SC.
1457=[1962] 1 S.C.R. 574, Niranjan Singh vs State of Madhya Pradesh ; and Calcutta Gas Co. (Proprietary) Ltd. vs State of West Bengal, A.I.R. 1965 S.C. 596 referred to. 2(a).
One of the constitutional imperatives embodied in Art 22(5) of the Constitution is that all the documents and materials relied upon by the detaining authority in passing the order of detention must be supplied to the detenu as soon as practicable to enable him to make an effective representation.
[360 G] In the instant case the materials and documents which were not supplied to the detenu were a part of the basic facts and materials which should have been supplied to him, ordinarily within 5 days of the order of detention and for exceptional reasons to be recorded, within 15 days of the commencement of the detention.
The respondent did not state that the documents which were not supplied were not relevant to the case of detenu.
[362 C] Smt.
Icchu Devi Choraria vs Union of India & Ors. ; applied.
(b) In the first petition no specific ground was taken by the detenu that documents covering 236 pages relied upon by the detaining authority were suppressed and not supplied to him.
He had now stated that he had come to know about the non supply of these documents from the judgment of the Gujarat High Court which was subsequent to the dismissal of his earlier petition.
This assertion has remained unchallenged.
[360 E F] (c) In matters touching the personal liberty of a person preventively detained, the constitutional imperative in article 22(5) is that any representation made by the detenu should be dealt with the utmost expedition which in this is has been honoured in breach.
[362 E] (d) Merely explaining the grounds of detention in the mother tongue of the detenu would not be sufficient compliance with the mandate of article 22(5) which requires that the grounds of detention must be communicated to the detenu.
"Communicate" is a strong word.
It means that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language understood by him.
Its whole purpose is to enable him to make a purposeful and effective representation.
If the grounds are only verbally explained without giving them to him in writing in a language that he understands, its purpose is not served and the constitutional mandate is infringed.
[362G H] Haribandhu Das vs District Magistrate Cuttack & Anr. ; Smt Razia Umar Bakshi vs Union of India and Harikisan vs State of Maharashtra [1962] Supp. 2 S.C.R. 918 followed.


judgement:
ition No. 5873 of 1980.
(Under Article 32 of the Constitution.) Ram Jethmalani and Miss Rani Jethmalani for the Petitioner.
O. P. Rana and M. N. Shroff for the Respondents.
The Judgment of the Court was delivered by FAZAL ALI, J.
This petition has been filed by the sister of the detenu praying that the detenu be released because the safeguards provided by the constitution have not been complied with.
The detenu was arrested on 20 10 1980 when only the grounds of detention were served on him.
On 5 11 1980 the documents and materials on the basis of which the order of detention was passed were supplied to the detenu.
On the 18th November 1980, the detenu made a representation to the Government which was disposed of as late as the 15th December 1980.
In support of the petition, Mr. Jethmalani has submitted two points on which alone, in our opinion, the petition must succeed.
In the first place, it was pointed out that, as already held by this Court the grounds served on the petitioner were not accompanied by the documents and materials which formed the basis of the order of detention, hence the safeguards contained in article 22(5) of the Constitution not having been complied with, the continued detention of the detenu became void.
Secondly, it was argued that even though the detenu had made a representation on 18 11 1980, the same was disposed of a month thereafter and no explanation for this delay has been furnished by the respondents.
This Court has held in numerous cases that the representations of the detenu should be disposed of as soon as possible and even an unexplained delay of 12 to 14 days has been held to be fatal to the order of detention.
Reliance has been placed 461 by Mr. Jethmalani on two decisions of this Court in Smt.
Icchu Devi Choraria vs Union of India & Ors.
which was later followed in Smt.
Shalini Soni Ors.
vs Union of India & Ors.
As regards the first case, which is a decision of two Judges of this Court, it has clearly held that before an effective representation can be made by the detenu he must be supplied with the documents and materials which formed the basis of the grounds of detention.
Unless this is done, there could be no question of making any representation, much less an effective representation, against the order of detention.
In this connection, Bhagwati J., speaking for the Court observed as follows: "Now it is obvious that when clause (5) of Article 22 and sub section (3) of section 3 of the COFEPOSA Act provide that the grounds of detention should be communicated to the detenu within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenu.
If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them.
It would not therefore be sufficient to communicate to the detenu a bear recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to clause (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and Section 3.
sub section (3) of the COFEPOSA Act.
One of the primary objects of communicating the grounds of detention to the detenu is to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention.
There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with Section 3, sub section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of Article 22 copies of the 462 documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention.
If this requirement of clause (5) of Article 22 read with Section 3, sub section (3) is not satisfied, the continued detention of the detenu would be illegal and void." Mr. Rana for the State has submitted that the observations extracted above do not form the ratio of the decision because in a subsequent para of the decision, Bhagwati, J. had observed that at the most grounds could be given within a period of five to fifteen days of the order of detention.
These observations, no doubt, are contained in paragraphs 7 and 8 of the judgment but they do not, in our opinion, form the ratio decidendi of this case but were made merely to rebut the extreme arguments that could be put forward.
This Court made it very clear that even apart from the interpretation placed by the Court on article 22(5) of the Constitution, the conclusion is inescapable that the documents and statements which formed the basis of the grounds of detention must be supplied to the detenu without least possible delay.
It is in this context that these observations were made in paragraphs 7 and 8 Moreover, this position has been made absolutely clear by a later decision of this Court in Smt.
Shalini Soni 's case (supra) where a Division Bench of this Court while endorsing Smt.
Icchu Devi 's case observed as follows: "The matter may also be looked at from the point of view of the second facet of Article 22(5).
An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him.
It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact.
If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility.
Whatever angle from which the question is looked at, it is clear that 'grounds ' in Article 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences.
The grounds must be self sufficient and self explanatory.
In our view copies of documents to which 463 reference is made in the 'grounds ' must be supplied to the detenu as part of the 'grounds '.
" The Court, therefore, clearly held that the documents and materials relied upon in the order of detention formed an integral part of the grounds and must be supplied to the detenu pari passu the grounds of detention.
If the documents and materials are supplied later, then the detenu is deprived of an opportunity of making an effective representation against the order of detention.
In this case, the court relied upon the ratio in Icchu Devi Choraria 's case (supra) extracted above.
We find ourselves in complete agreement with the view expressed by the two decisions of this Court and we are unable to accede to the prayer of Mr. Rana for sending the case for reconsideration to a larger Bench.
This Court has invariably laid down that before an order of detention can be supported, the constitutional safeguards must be strictly observed.
This Court in Maneka Gandhi vs Union of India has widened the horizon of article 21 and added new dimensions to various features of and concept of liberty enshrined in article 21.
In view of the decision in the aforesaid case, article 22(5) of the Constitution assumes a new complexion and has to be construed liberally and meaningfully so as to permit the legislature to impose the minimum possible curbs on the precious rights of a citizen, by virtue of preventive detention.
If a procedure under article 21 has to be reasonable, fair and just, then the words 'effective representation ' appearing in article 22(5) must be construed so as to provide a real and meaningful opportunity to detenu to explain his case to the detaining authority in his representation.
If the words 'effective representation ' are interpreted in an artificial or fanciful manner, then it would defeat the very object not only of article 22(5) but also of article 21 of the Constitution.
Thus, we are of the opinion that in view of what has been laid down in Mankea Gandhi 's case (supra) and in a number of other cases following the aforesaid decision, the law of preventive detention has now to satisfy a twofold test : (1) that the protection and the guarantee afforded under article 22(5) is complied with, and (2) that the procedure is just and reasonable.
In this view of the matter unless the materials and documents relied on in the order of detention are supplied to the detenu alongwith the grounds, the supply of grounds simpliciter would give him not a real but merely an illusory opportunity to make a representation to the detaining authority.
464 It is well settled that the Court frowns on preventive detention without trial because the detenu is deprived of the right of proving his innocence in a trial by a court of law.
It is, therefore, of the utmost importance that all the necessary safeguards laid down by the Constitution under article 21 or article 22(5) should be complied with fully and strictly and any departure from any of the safeguards would void the order of detention.
This is so because in a civilised society, like ours, liberty of a citizen is a highly precious right and a prized possession and has to be protected unless it becomes absolutely essential to detain a person in order to prevent him from indulging in anti national activities like smuggling, etc.
We are fortified in our view by a decision of this Court in Sampat Prakash vs State of Jammu & Kashmir where the following observations were made: "that the restrictions placed on a person preventively detained must, consistently with the effectiveness of detention, be minimal.
" It is a matter of great concern and deep dismay that despite repeated warnings by this Court, the detaining authorities do not care to comply with the spirit and tenor of the constitutional safeguards contained in article 22(5) of the Constitution.
It is manifest that when the detaining authority applies its mind to the documents and materials which form the basis of the detention, the same are indeed placed before it and there could be no difficulty in getting photostat copies of the documents and materials, referred to in the order of detention, prepared and attaching the same alongwith the grounds of detention, if the detaining authority is really serious in passing a valid order of detention.
Unfortunately, the constitutional safeguards are not complied with, resulting in the orders of detention being set aside by the Court, even though on merits they might have been justified in suitable cases.
We feel that it is high time that the Government should impress on the detaining authority the desirability of complying with the constitutional safeguards as adumbrated by the principles laid down in this regard.
We would like to suggest that whenever a detention is struck down by the High Court or the Supreme Court, the detaining authority or the officers concerned who are associated with the preparation of the grounds of detention, must be held personally responsible and action should be taken against them for not complying with the constitutional requirements and safeguards (viz. delay in disposing of the representation, not supplying the documents and materials relied upon in the order of detention pari passu the order of detention, etc.
etc.) or, at any rate, an explanation from the authorities concern 465 ed must be called for by the Central Government so that in future persons against whom serious acts of smuggling are alleged, do not go scot free.
In the instant case, not only were the documents and materials not supplied along with the order of detention, but there has been a delay of about 25 days in disposing of the representation of the detenu and no explanation for the same has been given.
These are matters which must be closely examined by the Government.
For the reasons given above, we hold that the continued detention of the detenu is void.
We allow the petition and direct the detenu to be released forthwith.
A copy of this judgment be sent to the Home Ministers of all the State Governments, Hon 'ble the Home Minister of the Government of India and also the Hon 'ble Finance Minister, Government of India for necessary action.
P.B.R. Petition allowed.

dataset_name: IN-Abs

summary/full:
In a petition under article 32 of the Constitution the petitioner detenu complained that though the grounds of detention were served on the detenu on the date of arrest (October 20, 1980) the materials and documents on which the order of detention was based were not supplied to him till November 5, 1980 and that his representation dated November 18, 1980 was disposed of nearly a month later (December 15, 1980) and that the failure on the part of the detaining authority to supply the requisite documents and materials and the unexplained delay in the disposal of the representation constituted violation of the safeguards contained in Art, 22(5) of the Constitution which vitiated the order of detention.
Allowing the petition, ^ HELD: It is well settled that the law of preventive detention has to satisfy a two fold test: (1) that the protection and the guarantee afforded under article 22(5) of the Constitution are complied with, and (2) that the procedure is just and reasonable.
[463G] Before an "effective representation" could be made by the detenu he must be supplied with the documents and materials which form the basis of the grounds of detention and unless this is done there could be no question of making any representation, much less an "effective representation" against the order of detention.
The documents and materials relied upon in the order of detention form an integral part of the grounds and must be supplied to the detenu pari passu the grounds of detention.
[461B] Smt.
Icchu Devi Choraria vs Union of India & Ors. ; and Smt.
Shalini Soni & Ors.
vs Union of India & Ors.
; referred to.
If procedure under article 21 has to be reasonable, fair and just, then the words 'effective representation ' appearing in article 22(5) must be construed so as to provide a real and meaningful opportunity to the detenu to explain his case to the detaining authority in his representation.
If the words 'effective representation ' are interpreted in an artificial or fanciful manner, then it would defeat the very object not only of article 22(5) but also of article 21 of the Constitution.
It is settled law that it is of the utmost importance that all the necessary safeguards laid down by the Constitution under article 21 or article 22(5) should be complied with fully and strictly and any departure from any of the safeguards would vitiate the order of detention.
[463E F] Maneka Gandhi vs Union of India [1978] 2 SCR 621 referred to.
460 In the instant case not only were the documents and materials not supplied to the detenu alongwith the order of detention but there had been an unexplained delay of about 25 days in disposing of the representation of the detenu.
[465B] [Despite repeated warnings by this Court the detaining authorities do not care to comply with the spirit and tenor of the safeguards contained in article 22(5) of the Constitution.
There should be no difficulty in keeping copies of the documents and materials referred to in the order of detention and supplying them to the detenu along with the order of detention.
This dereliction on the part of the detaining authorities results in the release of persons indulging in such anti national activities as smuggling though on merits the detentions in suitable cases may be justified.]


judgement:
: Criminal Appeal No. 17 of 1975.
Appeal by Special Leave from the Judgment and Order dated 7 6 1974 of the Himachal Pradesh High Court in Criminal Appeal No. 40/73.
Hardyal Hardy and P.P. Juneja for the Appellants.
Badri Das Sharma and Miss A. Subhashini for the Respondent.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against a judgment, dated June.
7. 1974, of the High Court of Himachal Pradesh, whereby it upheld the conviction of Rama Nand accused under Section 302, Penal Code, and that of the co accused Shish Ram and Kali Datt under Section 201, Penal Code, and also the sentences awarded to each of them by the learned Sessions Judge, 446 Mandi.
The prosecution story, as it emerged from the record, was as follows: Sumitra deceased, aged 19 years, was the daughter of Som Krishan (P.W. 33).
Rama Nand, appellant is her husband and Shish Ram, appellant 2, is her father in law while Kali Datt appellant 3, is the younger brother of Rama Nand.
Sumitra 's father wished to see his daughter highly educated, and employed in Government service and married to a suitable, highly educated person, settled in life.
Sumitra had passed Higher Secondary Examination and wanted to pursue her studies further according to the wishes of her father.
About two years before Sumitra 's reported death, Shish Ram appellant approached Som Krishan (P.W. 33) and persuaded him to give Sumitra in marriage to his son, Rama Nand.
While negotiating this matrimonial alliance, Shish Rama told Som Krishan that his son was suitably employed on a Government job in the Office of the Deputy Commissioner, Kasumpti.
He further falsely represented to Som Krishan that his son, Rama Nand was a graduate.
Believing this representation to be true, Som Krishan about 1 1/2 or 2 years before Sumitra 's murder in question, married her to Rama Nand; Before this marriage it was settled by Som Krishan with Shish Ram and Rama Nand accused that even after her marriage, Sumitra would continue to pursue further studies and take up employment as a teacher.
After the marriage, her father got his daughter, Sumitra, employed as a teacher in Village Nursery School at Chanyana which was situated near her parents ' village.
While teaching at Chnayana, she continued to reside with her parents.
She used to visit village Jherwin occasionally to be in the society of her husband who also used to come to Jherwin from Kasumpti.
The accused persistently demanded that Sumitra should give up her employment at Chanyana, and start residing permanently and continuously in her matrimonial home at Jherwin.
Sumitra tenaciously refused to do so.
Rama Nand wrote several letters to Sumitra urging her to give up her adamant attitude.
These letters furnished evidence of a strong motive for Rama Nand to put an end to the life of Sumitra.
Rama Nand was employed as a Clerk in the Office of the Deputy Commissioner Kasumpti.
On May 12, 1972, he came to Jherwin from Kasumpti.
He had earlier written to his wife, Sumitra, strongly urging her to come to village Jherwin.
On May 13, 1972, Sumitra came to Rama Nand 's house at Jherwin and stayed with him in his room on the night between 13th and 14th May, 1972.
The other 447 rooms of the house were in occupation of the other members of Shish Ram 's family.
Thereafter, on May 14, 1972, she disappeared from the house of the accused.
The accused gave out that Sumitra had gone towards the Sutlej river on the pretext of attending to the call of nature; that thereafter her Salwar and shoes were found on the bank of the river, which indicated that she had jumped into the river and committed suicide.
After pretending to make a search for her body in the river and nearabout, Shish Ram on May 16, 1972, went to Police Station Karsog at 5.30 p.m. and lodged a report (exhibit PAQ).
It was recorded by Head Constable Nand Lal.
After recording it in the Roznamacha, the Head Constable read it in the presence of one Inder Pal to the informant, who, after hearing the same to be correct, signed it in Hindi and his companion Inder Lal signed it in English.
As this report, according to the prosecution, shows that an attempt was made by Shish Ram accused to lay a false trail and manufacture false clues as to the cause of the death of Sumitra and to screen the offence, it is necessary to reproduce the material parts of that report (rendered into English), hereunder: . "my daughter in law Smt.
Sumitra Devi aged about 18/19 years, was married about 1 1/2 years ago, to my son Rama Nand who is employed in the office of D.C. Kasumpti as a clerk.
Sumitra Devi herself was employed as a Mistress in Nursery School, Chanyana and was residing with her parents.
Whenever my son used to come home on leave, she also used to visit her house at such time.
Similarly my son Rama Nand had come on leave to his house on 12 5 72 and in the evening of 13 5 72, my daughter in law, Smt.
Sumitra Devi had also come to his house.
As usual, because of Sunday holiday, in the morning on 14 5 72, myself, my daughter in law and other members of the family were planting chilly seedlings in the fields near our house.
My son (Rama Nand) was lying in bed on account of stomach trouble.
After plantation work, at about 9/10 a.m. my daughter in law, Smt.
Sumitra Devi along with Sheela Devi aged about 7 years, who is daughter of my brother, had gone downward on the pretext of easing herself.
After some time, Sheela returned home and reported that she had been turned back from the way by her aunt.
Sumitra Devi, who had gone ahead towards the river side.
For some time it was believed that she might have gone to answer the call of nature.
The river is about 2 furlongs from my house towards downside.
When sufficient time passed and she did 448 not return home, then calls were given hither and thither and search was also started but her whereabouts could not be known.
After a thorough search on the Sutlej river bank, the Salwar and shoes of Smt.
Sumitra were found which Smt.
Sumitra was wearing at the time of her going that side.
This created a suspicion that she might have committed suicide by jumping into the river.
She was searched at the river bank as also in the nearby villages. but her dead body was not found, nor any clue of her going is available.
Sumitra was married in a good family and her character was also good, her relations with her husband were cordial.
No quarrel on that day or prior to that, took place between her and my son, nor is there any reason for her disappearance.
I have come to report, which may be recorded.
After locating her alive or dead, separate report will be lodged.
" Daulat Ram, Station House Officer (P.W. 38) then visited the scene of occurrence on May 13, 1972.
He was not satisfied about the correctness of the information given by Shish Ram accused.
He, therefore, got a case under Section 364, Penal Code, registered.
Shis Ram accused produced before him the Salwar (exhibit P 14) and shoes (exhibit P 15/12) which, according to Shish Ram 's report, belonged to Sumitra deceased and were found lying on the river bank.
The investigator also prepared a rough sketch of the spot where these clothes and shoes were stated to have been found.
Som Krishan upon receiving the information, suspected that her daughter had been murdered at the instance of Rama Nand and others.
Som Krishan reached the spot and made enquiries.
Rama Nand and Shish Ram accused were arrested by the Investigating Officer on June 5, 1972.
The Investigating Officer took into possession the Locket chain (exhibit P 1) and the watch (exhibit P 2) belonging to the deceased from the room which was in the occupation of Rama Nand, in the deceased from the room which was in the occupation of Rama Nand, in the presence of Kanshi Ram and Hira Mani and prepared the Memo (exhibit P A) in this behalf.
Rama Nand accused, whilst in police custody, produced Sumitra 's clothes (exhibit P 5 to exhibit P 10) which were taken into possession by the Investigator in the presence of Mastu and Hari Ram, witnesses (vide exhibit P Y).
These clothes, according to the prosecution, were the same which Sumitra was wearing when she arrived at the house of Rama Nand accused on May 13, 1972.
449 On June 5, 1972, a legless and armless dead body in a highly decomposed state was found at a distance of four kilometers down stream on the bank of the river Sutlej near village Randaul.
Kali Datt appellant was found near that skeleton in the early hours or June 5,1972.
He dragged the skeleton from the river upto some distance.
It appeared that dogs etc.
had eaten away the flesh.
A part of the skull was found in tact, while the remaining part of it was lying at some distance.
On receiving information, Som Krishan (P.W.33) and his brother 's wife, Laxmi (P.W. 2), came and identified the skeleton to be that of Sumitra.
There was some flesh on the buttock portion and there was a mark on it.
According to these identifying witnesses, this mark was that of a burn which Sumitra had received during her infancy.
One of the teeth found in the inaudible was carious, while another tooth was jutting out.
Daulat Ram got the dead body measured from shoulder to the cut portion of the thies by Mehar Chand.
The measurement came to 2 ' 4".
Daulat Ram prepared the inquest report (exhibit P/F) which was attested by Kundan witness.
He sent the dead body along with the inquest report (exhibit PF) to Simla for post mortem examination.
The dead body reached the Hospital at 1 p.m on June 7, 1972.
There, they directed the police to take the dead body to Ripon Hospital.
The post mortem examination.
was conducted by Dr. J. R. Sharma (P.W. 14) on the following day.
The post mortem report was handed over to the police by the Doctor on June 21, 1972.
A few components of the skeleton, including the mandible, were sent to the Dental Surgeon, Dr. R. section Pathania (P.W. 15) and Radiologist, Dr. M. L. Ahuja (P.W. 16) for examination and opinion.
These Doctors, however, opined that the mandible belonged to a child of not more than 10 years of age.
The components of the skeleton were, also, sent to Dr. O. P. Bhargave (P.W. 31), Professor of Anatomy in the Medical College of simila.
His opinion about the age of the deceased was also the same.
The Doctor could not determine the sex of the skeleton.
On August 24, 1972, a Paranda (cotton headtail), alleged to be of Sumitra deceased was recovered from the jungle of Ghangar.
Some human hair were found entangled in the Paranda.
These hair were sent for comparison with the hair of the deceased found embedded in her Dupatta.
The forensic expert opined that the two sets of hair belonged to one and the same person.
After investigation, the four accused, namely, Rama Nand, his father Shish Ram, his brother Kali Datt and Shish Ram 's brother Kesar Chand, were sent up before a Magistrate who committed them 450 for trial to the Court of Session.
At the trial, in his examination under Section 342, Rama Nand admitted that after her marriage, Sumitra got employment as a teacher.
He, however, denied the prosecution allegation that he and his father were opposed to her employment as a teacher.
He expressed ignorance as to whether there was any settlement between his father, Shish Ram, and Som Krishan Shastri, father of Sumitra that she would continue her studies even after the marriage and would be free to take up service as her career.
He added that his matrimonial alliance with Sumitra was not negotiated and settled in his presence.
He admitted that the letters dated December 13, 1971, December 16, 1971 and May 9, 1972 (the English rendering of which is marked exhibit PAH, exhibit PAB, and exhibit PC, respectively) were written by him to Sumitra, and that the letter (exhibit PAJ) dated October 14, 1971, was written by him to his father in law.
Som Krishan Shastri (P.W. 33).
He further admitted that on May 13, 1972, Sumitra came to his house in village Jherwin from her parents ' place, and that she was then wearing the golden chain (exhibit P 1), wrist watch (exhibit P 2), Dupatta (exhibit P 5), suit (exhibit P 6 and exhibit P 7), socks (Ex.
P 8 and 9), banian (Ex.
P 10) and was carrying the basket (exhibit P 11) and umbrella (exhibit P 12).
He, however, added that when she (Sumitra) reached home on May 13, 1972 with the articles mentioned above, she was wearing pink ribbon on her head and not any threadbunch like exhibit
Question No.9 put to him was: "It is in prosecution evidence that on May 14, 1972 Sumitra was not seen at your house or in the village at Jherwin at all or thereafter.
What have you to say?" He replied: "On 14 5 72 morning at about, say upto 11 a.m., she was working in the field at Jherwin and thereafter she was not seen there and later on I was arrested and so I cannot say about her whereabouts." He admitted that his father Shish Ram had lodged the report (exhibit PAQ) in the Police Station, Karsog.
When the circumstance appearing in the prosecution evidence, "that after the occurrence on May 16, 1972, he (Rama Nand) went away to Simla from Jherwin and returned home three or four days thereafter" was put to Ramanand, he replied: "It is wrong.
I went to Simla on 17 5 72 evening and returned on 19th morning".
He denied that he and his father implored Som Krishan Shastri that he should save them from the police at Jherwin.
When the negative circumstance appearing in evidence, to the effect that the Salwar (exhibit P 14) was not of Sumitra, was put to him, he asserted that the Salwar (exhibit P 14) was that of Sumitra; and that his father had shown the Salwar (exhibit P 14) indicating that his daughter in law, Sumitra had gone in the river when the (Ramanand) was weeping.
In reply to the last question, Rama Nand narrated more or less the same story which was given by them (accused) to 451 the police in the Report, PAQ.
Among other things, he stated: "It was found on the river side that her Salwar (exhibit P 14) and shoes (exhibit P 15) were lying by the river bank giving indication that she had jumped into the river.
Then we were in mourning and the villagers also verified that Sumitra was seen going to the river".
Shish Ram accused admitted that Sumitra had come to their house at Jherwin on May 13, 1972 and had disappeared on May 14, 1972.
He admitted having lodged the report (exhibit PAQ) in the Police Station, Karsog.
He admitted that he had produced the Salwar (Ex.
P 14) and shoes (exhibit P 15) before the police during investigation.
He also maintained that the Salwar (exhibit P 14) belonged to Sumitra.
He denied that he and his co accused were threatening to teach Sumitra and her father the lesson of life for keeping Sumitra employed against their wishes at Chanayana.
He repeated the substance of the story which he had earlier stated in the report (exhibit PAQ), and reiterated that since Sumitra 's Salwar and shoes were found on the river bank, she had either jumped into the river or run away somewhere.
The learned Additional Sessions Judge by his judgment, dated December 1, 1973, convicted Rama Nand under Section 302, Penal Code, and sentenced him to rigorous imprisonment for life.
He further convicted Kali Datt and Shish Ram accused under Section 201, Penal Code, and sentenced each of them to one year 's rigorous imprisonment and a fine of Rs. 500/ .
Keshar Chand accused was given the benefit of doubt and acquitted.
The appeal by the convicted persons was dismissed by the High Court as per its judgment, dated June 7, 1974.
Hence this appeal by special leave.
The conviction of the appellants is based entirely on circumstantial evidence.
In convicting Rama Nand, appellant under Section 302, Penal Code, for the murder of his wife, Sumitra, the courts below have concurrently relied upon these circumstances which, according to them, had been established by the prosecution.
(1) Rama Nand accused had a strong motive to murder his wife, Sumitra.
(2) Sumitra was last seen alive with Rama Nand, appellant in the family house at Jherwin on the night between 13th and 14th May, 1972.
The other two co accused were also present in the same house (3) (a) Rama Nand and the other co accused falsely gave out that she had committed suicide by jumping into the river.
They 'planted ' a Salwar and a pair of shoes on the bank of the Sutlej and gave out that they belonged to the deceased, and Shish Ram lodged 452 a false report with the police to the effect that she had committed suicide by jumping into the river.
The Salwar and the shoes, which had been 'planted ' there to manufacture false clues by the accused, did not belong to Sumitra, and the accused have falsely asserted that these articles belong to the deceased.
(b) The story given out by the accused persons that upto 11 a.m. on May 14, 1972, Sumitra was planting chillies along with Sheela and other members of the family of the accused, was false.
(4) The gold chain (exhibit P 1) and the watch (exhibit P 2) which Sumitra used to wear on her person all the 24 hours, and the clothes (exhibit P 5 to P 10) which she had on the person and the basket (exhibit P 11) and umbrella (exhibit P 12) which she was carrying when on the evening of May 13, 1972 she came to the house of the accused at Jherwin, were recovered from the house of the accused.
(5) Some days after the occurrence, one Paranda was found from the jungle near this village.
There was a bunch of hair in the plaited tail of this Paranda.
The tail appeared to have been cut.
These hair sticking in the Paranda and those found entangled in the Dupatta of the deceased were according to the Forensic Expert of one and the same person.
(6) A legless decomposed corpse was recovered from the Sutlej near village Randol in a mutilated condition.
From a burnt mark on the flesh sticking to the buttock of the corpse it was identified as that of Sumitra, deceased.
The High Court further held that even if any doubt remained with regard to the identity or recovery of the corpus delicti, the telling circumstances otherwise complete the chain of evidence to establish beyond doubt that Sumitra had been murdered and the charges had been established against the accused as held by the trial court.
In the result it dismissed the appeal of the accused respondents.
Shri Hardayal Hardy, learned counsel appearing for the appellants contents that these circumstances have not been satisfactorily established.
He has placed great emphasis on the evidence of the medical experts, according to which the mutilated corpse found at Randol was that of a child, aged about 8 or 9 years.
It is submitted that the dead body found was not that of Sumitra deceased, and as a result, the courts below were not justified in holding that the death of Sumitra had been established by the prosecution.
On the other hand, the learned counsel for the State has argued in support of the judgment of the High Court.
453 It is well settled that where the inference of guilt of an accused person is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established.
Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused and none else.
The first circumstance which has been found to be established by the courts below against the appellant is that he had "a very strong motive" to commit the murder of Sumitra.
To substantiate this fact, the prosecution produced four letters written by Rama Nand appellant.
There are: exhibit PAJ, exhibit PAH, exhibit PAB/1 and exhibit PC.
The accused also tendered in evidence the letter (exhibit DA) dated November 14, 1971 written by Som Krishan to Sumitra.
As already mentioned, Rama Nand accused has admitted that the letters (exhibit PAJ, PAH, PAB/1 and P.C.) were written by him.
exhibit PAJ purports to have been written by him from village Jherwin on October 14, 1971.
In this letter, Rama Nand very clearly informed his father in law that his father Shish Ram was not in favour of Sumitra taking up service and residing away from the accused 's house at Jherwin.
In this letter, Rama Nand urged his father in law that the latter should either come to Jherwin along with Sumitra or send her alone.
This letter also indicates that Sumitra was persisting in taking up service elsewhere against the wishes of the accused persons.
Chronologically, the next letter is exhibit DA dated November 14, 1971.
It is addressed by Som Krishan to his daughter, Sumitra.
In this letter, the father informs the daughter that he had obtained her appointment letter and she would be required to join by the 17th to start the Nursing School at Balwari.
He wanted her to come to his house to take up the appointment.
In this letter, he also wishes her daughter to convey to Rama Nand appellant and his brother, Kesar Chand (acquitted accused) that they should agree to Sumitra 's taking up this employment and that they should further bring round Shish Ram by reminding him that they had earlier consented to her taking up Service.
This letter further indicates that Sumitra was much distressed because of the hostile attitude adopted by her in laws towards her.
To console her, the father wrote: "Don 't worry.
Whatever God does is good.
Have self confidence and do not repent on any failure".
The third letter, dated December 13, 1971, (exhibit PAH), written by Rama Nand to Sumitra, shows that the opposition of the appellant, 454 his father Shish Ram and brothers to Sumitra 's taking up service away from the matrimonial home, had passed from the serious to the sardonic stage.
It starts with the words: "Wish you happy luxury !" Read in accord with the tenor of the letter, it conveys a biting ironical taunt.
These words were capable of being construed as conveying an innuendo that she was merry making de hors the matrimonial home in an extra marital way.
May be, the appellant was doubting her fidelity.
He informs her that he had visited Jherwin in the hope that he would join her there, but this hope did not materialise.
He complains against this attitude of neglect on the part of his wife when he says: "Today you have not seen to my condition, and have defamed me.
To whom should I blame ? It is the wind and to which side it blows it must do something.
I was thinking to save (you) from this wind.
" He further reproaches and upbraids her: "You did not think over it seriously and you did not care for it nor others.
You have taken it as a prestige issue.
I cannot do anything so long I am not heartily happy and I weep to my fate.
" He then warns her in a contemptuous and peremptory tone: "It would be better that you should resign your job now and come down here .
If you intend to reside with me, then you should agree to my words. otherwise it will be a dog 's life.
You should either come to this place or to village Jherwin after resigning the job and from there you may come to Simla on any day.
As you know, a friend in need is a friend in deed.
When this is lost, one cannot take the shelter of others.
" He reminds her that her marriage had been solemnised with him. "To do service entirely depends upon you and me and not upon (your) father.
It is time to resign the Service. " He repeats: "It is against the respect of my family, yourself and myself that I should allow you to serve at a monthly pay of Rs. 120/ and only for a tenure of six months and myself to stay at Simla in the Hotel." He then in stronger language demanded her to resign her job within 24 hours and come to his house direct without waiting for her resignation to be accepted.
He closes the letter with an ominous threat veiled as a warning: "If you do not resign the job, our relations will become strained." In the next letter (exhibit PC), dated December 16, 1971, Rama Nand wrote to Sumitra that he did not understand why she did not "improve his (?) life ' and why she was acting at the beck and call of others.
He urged her that it would be better to 'live for a more '.
He added: "You obey me or not, you yourself will understand the significance of this when you give place to it in your mind".
He sternly repeated the warning: "I once again request you to keep in mind your as also my honour, what you have to do, as the time has come.
There is no example in the history of world that a girl after marriage 455 should act on the advice of her father, which may be harmful." He again urged her: "Do not think this letter as a mere piece of paper, but each and every line in it will decide our future career. you should resign your post.
" He again administered a warning, coupled with a threat of resorting to violence in case she did not resign her job to live with the accused permanently: "The present is the condition of China 's wall as Lt. General Mr. Kaul was saying that on China Border there is no firing, no firing, no firing.
But what was the result in the end, you know better. .
If you honour me, your husband, then you should tender your resignation from the job forthwith".
He further sternly warned her: "If you still do not come round, what would happen in future, will entirely be your responsibility and I may not be blamed for that".
He ended the letter with a hostile note, repeating the threat: "I may write, what will happen in future.
Entire responsibility of future solely depends upon you.
It is the question of life and not of service. .
This is time of your test.
Reply this letter.
" The sentence, 'It is the question of life and not of service ' read in the context, clearly conveys to the wife a threat that the choice open to her was between 'life ' and 'service ', that is to say, she would not be left alive if she did not give up the 'service '.
This letter unmistakably reveals that Rama Nand had worked his feelings at his wife 's persistent refusal to give up service and live with him, into such a frenzied resolve that if his wife did not, as he desired, 'mend ' her ways, he would 'end ' her life.
Even after this letter, there appears to have been no alleviation or change in this revengeful attitude of the husband towards his wife.
This is discernible from Rama Nand 's last letter dated May 9, 1972 (exhibit PAB) addressed to Sumitra.
In this letter also, he cannot conceal his feeling of being "sick of you".
He writes, ". the difference in views can make life troubleful or as well can lead towards downfall as I already told you", that "to deceive any true person can only be a sin and nothing else".
He appears to be giving her a last warning, a last chance to come round and come home when he writes that "time is short I will again request you that if you try to come home on Saturday, it will be good .
I do not feel good. you definitely try to come, if you cannot come on Saturday then come on Sunday, otherwise. " These letters vividly reveal that despite the repeated persuasions, warnings and threats proceeding from Rama Nand accused, Sumitra intransigently and persistently refused to give up her service at Chanyana, and residence with her parents, and declined to come and live permanently in the matrimonial home at Jherwin, and as a result, how the husband 's feelings of tenderness towards his wife progressively 456 changing into regret, persecution complex, resentment, exasperation and smouldering hostility, ultimately hardened into a revengeful resolve in the mind of Rama Nand to end what he calls "a dog 's life" by putting an end to the life of his spouse.
We agree with the High Court that these letters reveal that Rama Nand appellant had a strong motive to murder the deceased.
The second circumstance was also well established.
It had been admitted even by the appellant and his co accused.
The courts below have found, and rightly so, that both the limbs of circumstance No. (3) had also been established by evidence produced by the prosecution.
Som Krishan (P.W. 33), father of Sumitra, had testified that when he went to Jherwin on receiving a message from the accused about the disappearance of his daughter, he was shown the Salwar (exhibit P 14) and shoes (exhibit P 15/1 2) and told that these clothes were left behind on the bank of the Sutlej river when she disappeared.
P.W. 33 further stated that this shabby Salwar (exhibit P 14) which had patches on it, did not belong to Sumitra and she never wore such a Salwar; nor did the pair of shoes (exhibit P 15) belong to her.
P.W. 33 further testified: "Then Rama Nand, Shish Ram and Kesar Chand accused implored me that they may be saved from police remand.
To this I said that I was not conversant with law but you may tell the truth".
This testimony of P.W. 33 has been accepted by the courts below.
We have no reason to take a different view.
As rightly held by the courts below Sumitra was a sophisticated and educated girl.
It was difficult to believe that she would do chilly plantation and wear such a patched and dirty Salwar as exhibit P 14.
The very story given out by the accused persons and narrated by Shish Ram in the report (exhibit PAQ) made by him to the Police, and repeated by him and Rama Nand in their examination under Section 342, Cr.
P.C., to effect that Sumitra had after undressing and leaving behind her shoes (exhibit P 15) and Salwar (exhibit P 14) on the bank of the Sutlej, committed suicide by jumping into the river was improbable, incredible and false.
Thus, circumstance 3(a) and (b) had also been clearly and cogently established.
This piece of evidence was relevant under Section 8, Evidence Act and was a definite pointer towards the guilt of the accused.
Circumstance (4) appearing in the prosecution evidence, was admitted by the accused persons.
Circumstance (5) also stood established.
Though a feeble pointer towards the guilt of the accused, by itself it was not of a conclusive character.
Circumstance (6) has been seriously controverted.
The burden of the arguments of the learned counsel for the appellants is that the prosecution had miserably failed to establish that the legless decomposed 457 body found in the river was that of Smt.
Sumitra, and in such a situation, the possibility of her being alive cannot be reasonably ruled out.
Although the High Court has held that the body recovered was that of Sumitra deceased and that the bones sent to the medical experts were not parts of the decomposed body found, but appeared to have been fraudulently replaced with the bones of a child during transmission to the medical experts, we would assume that the identity of the body found in the river was not established beyond reasonable doubt.
In other words, we would take it that the corpus delicti, i.e., the dead body of the victim was not found in this case.
But even on that assumption, the question remains whether the other circumstances established on record were sufficient to lead to the conclusion that within all human probability, she had been murdered by Rama Nand appellant ? It is true that one of the essential ingredients of the offence of culpable homicide required to be proved by the prosecution is that the accused "caused the death" of the person alleged to have been killed.
This means that before seeking to prove that the accused is the perpetrator of the murder, it must be established that homicidal death has been caused.
Ordinarily, the recovery of the dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim.
There was a time when under the old English Law, the finding of the body of the deceased was held to be essential before a person was convicted of committing his culpable homicide.
"I would never convict", said Sir Mathew Hale, "a person of murder or manslaughter unless the fact were proved to be done, or at least the body was found dead".
This was merely a rule of caution, and not of law.
But in those times when execution was the only punishment for murder, the need for adhering to this cautionary rule was greater.
Discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder.
Indeed, very many cases are of such a nature where the discovery of the dead body is impossible.
A blind adherence to this old "body" doctrine would open the door wide open for many a heinous murderer to escape with impunity simply because they were cunning and clever enough to destroy the body of their victim.
In the context of our law, Hale 's enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution.
Such proof may be by the direct ocular 458 account of an eye witness, or by circumstantial evidence, or by both.
But where the fact of corpus delicti, i.e. 'homicidal death ' is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death.
Even so, this principle of caution cannot be pushed too far as requiring absolute proof.
Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth.
That is why under Section 3, Evidence Act, a fact is said to be "proved", if the Court considering the matters before it, considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that it exists.
The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned.
In the instant case, Circumstances (1) to (5), in their cumulative effect, are not only inconsistent with the innocence of Rama Nand appellant, but ineluctably and rationally compel the conclusion that Sumitra has died and it is Rama Nand appellant who has intentionally caused her death.
Circumstance (3) involves an admission by Rama Nand and Shish Ram accused that Sumitra has met an unnatural death.
The only difference between the prosecution version and the defence version is as to whether Sumitra committed suicide or had been killed by Rama Nand appellant.
It has been found that the story of the suicide set up by the accused is false.
The articles Salwar (exhibit P.14) and the shoes (exhibit P 15) do not belong to her.
They were planted by the accused to lay a false trail and to mis direct the investigation.
This circumstance taken in conjunction with the others, irresistibly and rationally leads to the conclusion that she has been murdered by Rama Nand appellant and her dead body has been disposed of by the appellants Shish Ram and Kali Datt.
For the foregoing reasons, we dismiss this appeal and maintain the convictions and sentences of the appellants.
S.R. Appeal dismissed.

summary/full:
Dismissing the appeal and maintaining the conviction and sentences of the appellants, the Court ^ HELD:(1) It is well settled that where the inference of guilt of an accused person is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established.
Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused and none else.
In the instant case, the following circumstances had been correctly found to have been established by the prosecution: (i) Rama Nand accused had a strong motive to murder his wife, Sumitra.
(ii) Sumitra was last seen alive with Rama Nand, appellant in the family house at Jherwin on the night between 13th and 14th May, 1972.
(iii) (a) Rama Nand and the other co accused falsely gave out that she had committed suicide by jumping into the river.
They 'planted ' a Salwar and a pair of shoes on the bank of the Sutlaj and gave out that they belonged to the deceased, and Shish Ram lodged a false report with the police to the effect that she had committed suicide by jumping into the river.
The Salwar and the shoes, which had been 'planted ' there to manufacture false clues by the accused, did not belong to Sumitra, and the accused falsely asserted that whose articles belong to the deceased.
(b) The story given out by the accused persons that upto 11 a.m. on May 14, 1972, Sumitra was planting chillies along with Sheela and other members of the family of the accused, was false.
(iv) The gold chain (exhibit P 1) and the watch (exhibit P 2) which Sumitra used to wear on her person all the 24 hours, and the clothes (exhibit P 5 to P 10) which she had on her person and the basket (exhibit P 11) and umbrella (exhibit P 12) which she was carrying when on the evening of May 13, 1972 she came to house of the accused at Jherwin, were recovered from the house of the accused.
(v) Some days after the occurrence, one Paranda was found from the jungle near this village.
There was a bunch of hair in the plated tail of this Paranda.
The tail appeared to have been cut.
These hair sticking in the paranda and those found entangled in the Dupatta of the deceased were according to the Forensic Expert of one and the same person.
(vi) A legless decomposed corpse was recovered from the Sutlej near village Randol in a mutilated condition.
But its identity [451G H, 452A E, 453A B] (2) Even on the assumption that the dead body of the victim was not found, circumstances (i) to (v) mentioned above in their cumulative effect includably and rationally compel the conclusion that Sumitra had died and it was Rama 445 Nand accused who had intentionally caused her death.
Ordinarily, the recovery of the dead body of the victim or a vital part of it, bearing marks of violence is sufficient proof of homicidal death of the victim.
Even so, discovery of the dead body of the victim bearing physical evidence of violence, has never been considered as the only mode of proving the corpus delicti in murder.
Indeed very many cases are of such a nature where the discovery of the dead body is impossible.
A blind adherence to this old doctrine of Sir Mathew Hale that "for a conviction of murder atleast the body was found dead" would open the door wide open for many a heinous murderer to escape with impunity simply because they were a cunning and clever enough to destroy the body of their victim.
In the context of our law, Hale 's enunciation has to be interpreted no more than emphasising that where the dead body of the victim in a murder case is not found, other cogent and satisfactory proof of homicidal death of the victim must be adduced by the prosecution.
Such proof may be the direct ocular account of an eye witness, or by circumstantial evidence, or by both.
But where the fact of corpus delicti, i.e. 'homicidal death ' is sought to be established by circumstantial evidence alone, the circumstances must be of a clinching and definitive character unerringly leading to the inference that the victim concerned has met a homicidal death.
Even so, this principle of caution cannot be pushed too far as requiring absolute proof.
Perfect proof is seldom to be had in this imperfect world, and absolute certainty is a myth.
That is why under Section 3, Evidence Act, a fact is said to be "proved", if the Court considering the matters before it, considers its existence so probable that a prudent man ought.
under the circumstances of the particular case, to act upon the supposition that it exists.
The corpus delicti or the fact of homicidal death, therefore, can be proved by telling and inculpating circumstances which definitely lead to the conclusion that within all human probability, the victim has been murdered by the accused concerned.
[457 D H, 458A D]


judgement:
N: Criminal Appeal No. 699 of 1980.
Appeal by Special Leave from the Judgment and Order dated 6 11 1979 of Patna High Court in Criminal Misc.
3679 and 3913/79.
403 K. G. Bhagat and D. Goburdhan for the Appellant.
section C. Misra, M. P. Jha and A. K. Jha for the Respondent.
The Judgment of the Court was delivered by KOSHAL, J.
This is an appeal by special leave against an order dated the 6th November, 1979 of a learned Single Judge of the Patna High Court quashing the entire proceedings in a criminal case against the 7 respondents who were facing a charge under section 7 of the Essential Commodities Act in the Court of a Magistrate at Bhagalpur.
The case was initiated through a report lodged with the police on the 9th of April 1960 with the allegation that the respondents ' firm which held a licence for dealing in iron and steel had misappropriated a large quantity of G.C. sheets meant for distribution to quota and sub quota holders.
After investigation a police report was submitted on the 23rd December 1962 to a Bhagalpur Magistrate who took cognizance of the case on the 25th January 1963.
However, the charge against the respondents was framed as late as 15th September 1967 and since then the progress of the case was very tardy as the orders passed therein were challenged in appeals or on the revisional side from time to time.
Ultimately in 1979 the respondents made two applications to the High Court praying that the proceedings against them be quashed and the same were accepted through the impugned order.
The High Court held for various reasons that the police report did not disclose any offence against any of the respondents.
Another reason for accepting the two applications may be stated in the words of the learned Single Judge: "Another important aspect of the matter is that the prosecution commenced in the year 1963 and it is still going on in 1979.
It is true that the accused persons themselves are partly blamed for this delay because several revision applications have been filed at their instance in the High Court and in the district court.
The situation, however, continues to be unjustified because the last revision application was some time disposed in 1973 and the record was returned in 1974.
This fact has been stated by the learned counsel for the petitioners and five years have elapsed since then.
I am told that four witnesses have been examined and the last witness was examined in April, 1979 and after that no witness has been examined.
It has been stated in the order sheet that prosecution is not in a position to know the address of the witnesses who are mostly Government Officials.
Luxury of protracted trial cannot be allowed to the 404 prosecution.
If they did not know the address of their own witnesses and if the prosecution was not in a position to conclude its evidence by now it will be an abuse of the process of the court to allow the prosecution go on any further.
Learned counsel for the appellant State has challenged the impugned order not only on the ground that its finding about the police report not disclosing any offence against the respondents was erroneous but also with the argument that the delay in the conclusion of the trial was not a justification for quashing the proceedings.
We have heard him at length and although there is much to be said against the impugned order in so far as the finding about the police report is concerned, we cannot lose sight of the fact that the trial has not made much headway even though no less than 20 years have gone by.
Such protraction itself means considerable harassment to the accused not only monetarily but also by way of constant attention to the case and repeated appearances in court, apart from anxiety.
It may well be that the respondents themselves were responsible in a large measure for the slow pace of the case inasmuch as quite a few orders made by the trial magistrate were challenged in higher courts, but then there has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage.
In this view of the matter we do not consider the present case a proper one for our interference in spite of the fact that we feel that the allegations disclosed the commission of an offence which we regard as quite serious.
For the reasons stated we dismiss the appeal.
N.V.K. Appeal dismissed.

summary/full:
A case was initiated through a report lodged with the police on the 9th April, 1960 that the respondent 's firm had misappropriated a large quantity of G. C. Sheets meant for distribution to quota and sub quota holders.
After investigation, a police report was submitted on the 23rd December 1962 to the Magistrate, who took cognizance of the case on the 25th January, 1963.
Charges were framed against the respondents under section 7 of the Essential Commodities Act on 15th September, 1967.
The progress of the case thereafter was very tardy.
In 1979, the respondents made two applications to the High Court for quashing the proceedings initiated against them.
The High Court allowed them on the ground that the police report did not disclose any offence against any of the respondents and that as the prosecution commenced in the year 1963 was still going on in 1979, it would be an abuse of the process of the Court to allow the prosecution to continue any further.
In the appeal by the State to this Court, it was contended that the finding about the police report not disclosing any offence was erroneous and that the delay in the conclusion of the trial was not a justification for quashing the proceedings.
Dismissing the appeal ^ HELD: 1.
There has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage.
[404D] 2.
The present case is not a proper one for interference inspite of the fact that the allegations disclose the commission of an offence which is quite serious.
[404E] In the instant case the trial has not made much headway even though no less than 20 years have gone by.
Such protraction itself means considerable harassment to the accused not only monetarily but also by way of constant attention to the case and repeated appearances in court, apart from anxiety.
[404C D]