Long back, an eminent thinker and author, Sophocles, had to say:
“Law can never be enforced unless fear supports them.”

Though the aforesaid statement was made centuries back, it has its
pertinence, in a way, with the enormous vigour, in today’s society. It is
the duty of every right-thinking citizen to show veneration to law so that
an orderly, civilized and peaceful society emerges. It has to be borne in
mind that law is averse to any kind of chaos. It is totally intolerant of
anarchy. If any one defies law, he has to face the wrath of law, depending
on the concept of proportionality that the law recognizes. It can never be
forgotten that the purpose of criminal law legislated by the competent
legislatures, subject to judicial scrutiny within constitutionally
established parameters, is to protect the collective interest and save
every individual that forms a constituent of the collective from
unwarranted hazards. It is sometimes said in an egocentric and uncivilised
manner that law cannot bind the individual actions which are perceived as
flaws by the large body of people, but, the truth is and has to be that
when the law withstands the test of the constitutional scrutiny in a
democracy, the individual notions are to be ignored. At times certain
crimes assume more accent and gravity depending on the nature and impact of
the crime on the society. No court should ignore the same being swayed by
passion of mercy. It is the obligation of the court to constantly remind
itself that the right of the victim, and be it said, on certain occasions
the person aggrieved as well as the society at large can be victims, never
be marginalised. In this context one may recapitulate the saying of
Justice Benjamin N. Cardizo “Justice, though due to the accused, is due to
the accuser too”. And, therefore, the requisite norm has to be the
established principles laid down in precedents. It is neither to be guided
by a sense of sentimentality nor to be governed by prejudices. We are
constrained to commence with this prologue because we are required to deal
with the concept of adequacy of quantum of sentence imposed by the High
Court under Section 304A of the Indian Penal Code (IPC) after maintaining
the conviction of the respondent of the said offence as the prosecution has
proven the charge that the respondent has caused death of two persons by
rash and negligent driving of a motor vehicle.

Before parting with the case we are compelled to observe that India
has a disreputable record of road accidents. There is a non-challant
attitude among the drivers. They feel that they are the “Emperors of all
they survey”. Drunkenness contributes to careless driving where the other
people become their prey. The poor feel that their lives are not safe, the
pedestrians think of uncertainty and the civilized persons drive in
constant fear but still apprehensive about the obnoxious attitude of the
people who project themselves as “larger than life”. In such obtaining
circumstances, we are bound to observe that the lawmakers should
scrutinize, re-look and re-visit the sentencing policy in Section 304A,
IPC. We say so with immense anguish.

————————————————————————————————————————————————————————————————

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.520 OF 2015
[Arising out of S.L.P. (Crl.) No. 5825 of 2014]
State of Punjab … Appellant

Versus

Saurabh Bakshi … Respondent
J U D G M E N T
Dipak Misra, J.
Long back, an eminent thinker and author, Sophocles, had to say:
“Law can never be enforced unless fear supports them.”

Though the aforesaid statement was made centuries back, it has its
pertinence, in a way, with the enormous vigour, in today’s society. It is
the duty of every right-thinking citizen to show veneration to law so that
an orderly, civilized and peaceful society emerges. It has to be borne in
mind that law is averse to any kind of chaos. It is totally intolerant of
anarchy. If any one defies law, he has to face the wrath of law, depending
on the concept of proportionality that the law recognizes. It can never be
forgotten that the purpose of criminal law legislated by the competent
legislatures, subject to judicial scrutiny within constitutionally
established parameters, is to protect the collective interest and save
every individual that forms a constituent of the collective from
unwarranted hazards. It is sometimes said in an egocentric and uncivilised
manner that law cannot bind the individual actions which are perceived as
flaws by the large body of people, but, the truth is and has to be that
when the law withstands the test of the constitutional scrutiny in a
democracy, the individual notions are to be ignored. At times certain
crimes assume more accent and gravity depending on the nature and impact of
the crime on the society. No court should ignore the same being swayed by
passion of mercy. It is the obligation of the court to constantly remind
itself that the right of the victim, and be it said, on certain occasions
the person aggrieved as well as the society at large can be victims, never
be marginalised. In this context one may recapitulate the saying of
Justice Benjamin N. Cardizo “Justice, though due to the accused, is due to
the accuser too”. And, therefore, the requisite norm has to be the
established principles laid down in precedents. It is neither to be guided
by a sense of sentimentality nor to be governed by prejudices. We are
constrained to commence with this prologue because we are required to deal
with the concept of adequacy of quantum of sentence imposed by the High
Court under Section 304A of the Indian Penal Code (IPC) after maintaining
the conviction of the respondent of the said offence as the prosecution has
proven the charge that the respondent has caused death of two persons by
rash and negligent driving of a motor vehicle.
2. The facts which are necessitous to be stated are that on 14.6.2007
Jagdish Ram and his nephew, Shavinder Kumar @ Tinku, sister’s son, had
proceeded from Sangrur to Patiala in their Maruti car bearing registration
PB-11-M-8050. The said vehicle was also followed by Ramesh Chand in
another Maruti car bearing registration no. PB-09-C-6292. Be it noted that
all of them had gone to house of one Des Raj at Sangrur in connection with
matrimonial alliance of Shavinder Kumar alias Tinku. The vehicle that was
driven by Tinku was ahead of Ramesh’s at a distance of 25/30 kadams. After
they reached some distance ahead of the bus stand village Mehmadpur about
2.00 p.m. an Indica car bearing registration no. HR-02-6800 came from the
opposite side at a very high speed and the driver of the said car hit
straightaway the car of Jagdish and dragged it to a considerable distance
as a result of which it fell in the ditches. Ramesh Chand, who was
following in his car, witnessed that his brother-in-law and nephew had
sustained number of injuries and their condition was critical. A police
ambulance came to the spot and the injured persons were taken to Rajindra
Hospital, Patiala where Jagdish and Shavinder Kumar succumbed to injuries.
In view of the said incident as FIR was lodged by Ramesh Chand, brother-in-
law of Jagdish and accordingly a crime under Section 279/304A was
registered against the respondent for rash and negligent driving. The
learned trial Magistrate, Patiala framed charges for the offences
punishable under Section 279/304A IPC to which the respondent pleaded not
guilty and claimed to be tried. The prosecution in order to prove its
case examined six witnesses. The learned Addl. Chief Judicial Magistrate,
Patiala vide judgment and order dated 23.4.2012 convicted the respondent
for the offences punishable under Section 304A IPC and sentenced him to
undergo rigorous imprisonment for a period of one year and pay a fine of
Rs.2000/- with a default clause. On an appeal being preferred, the learned
Addl. Sessions Judge, Patiala dismissed the appeal by judgment and order
dated 6.9.2013.
3. As the factual matrix would unveil the respondent being grieved by
the aforesaid conviction and the sentence preferred Criminal Revision No.
2955 of 2013 and the High Court while disposing off the Criminal Revision
addressed to the quantum of sentence and in that context observed that:-
“…the legal heirs of Jagdish Ram have been awarded a sum of Rs.7,30,000/-
as compensation by the MACT and Rs.12,07,206/- to the legal heirs of
Swinder Kumar @ Tinku by the MACT. The FAO Nos. 5329 and 5330 are pending
in this Court. In compliance of order dated 19.9.2013, the petitioner has
deposited Rs.85,000/- before the trial court as compensation to be paid to
the LRs of deceased Jagdish Ram and Swinder Kumar @ Tinku. The
compensation shall be divided as Rs.50,000/- to the LRs of Swinder Kumar @
Tinku and Rs.35,000/- to the LRs of Jagdish Ram. The receipt is taken on
record. As per custody certificate petitioner Saurabh Bakshi has undergone
24 days as on 30.9.2013 out of one year.”

Being of this view the High Court upheld the conviction and reduced the
sentence, as has been stated before, to the period already undergone.
Hence, the State is in appeal.
4. At this juncture, it is essential to state that the respondent who
had initially wanted to argue the matter in-person had agreed to be
assisted by a counsel and accordingly this court had appointed Ms.
Meenakshi Arora, learned senior counsel to assist the court in the matter.
5. We have heard Mr. V. Madhukar, learned Additional Advocate General
and Ms. Meenakshi Arora, learned senior counsel for the respondent.
6. It is submitted by Mr. Madhukar that when the prosecution had been
able to establish the charges leveled against the respondent and both the
trial court and the appellant court had maintained the sentence there was
no justification on the part of the High Court to reduce the sentence to
the period already undergone solely on the basis that the respondent had
paid some compensation. It is his further submission that keeping in view
the gravity of the offence that two deaths had occurred the High Court
should have kept itself alive to the nature of the crime and should have
been well advised not to interfere with the quantum of sentence. He has
commended us to the decisions in State of Punjab v. Balwinder Singh and
Others[1] and Guru Basavaraj Alias Benne Settappa v. State of Karnataka[2].
7. Ms. Meenakshi, learned senior counsel, per contra, has contended that
the respondent was quite young at the time the accident took place and it
may be an act of negligence, but the contributory facet by the Maruti car
driver cannot be ruled out. That apart, there are mitigating circumstances
for reduction of the sentence and in the obtaining factual matrix the High
Court has appositely adopted corrective machinery which also reflects the
concept of proportionality. The learned senior counsel would also submit
that when the High Court has exercised the discretion which is permissible
under Section 304A this court should be slow to interfere. It is urged by
her that when the compensation had been paid, the High Court has kept in
view the aspect of rehabilitation of the victim and when that purpose have
been sub-served the reduction of sentence should not be interfered with.
The learned senior counsel has drawn inspiration from Gopal Singh v. State
of Uttarakhand[3] and a recent judgment in Criminal Appeal No. 290 of 2015
titled State of M.P. v. Mehtaab[4].
8. At the outset, it is essential to note that the respondent stood
convicted by the trial court as well by the appellate court. The findings
recorded by the said two courts are neither perverse nor did they call for
interference in exercise of the revisional jurisdiction. The High Court as
we notice has been persuaded by the factum of payment of compensation by
the respondent herein, amounting to Rs.85,000/- to the LRs of deceased
Jagdish Ram and his nephew and the said compensation had been directed to
be paid by virtue of the order dated 19.9.2013 passed by the High Court.
It is submitted by Ms. Arora that apart from the young age of the
respondent at the time of occurrence the aforesaid aspect would constitute
the mitigating factor. In Mehtaab’s case a two-Judge Bench was dealing
with the case under Section 304A IPC wherein the respondent was convicted
under Section 304A IPC and 337 IPC and sentenced to undergo one year and
three months rigorous imprisonment respectively. The High Court had
reduced the sentence to 10 days. It is apt to note here that in that case
the deceased had received injuries due to shock of electric current. The
court took note of the submission of the learned counsel for the State and
proceeded to opine as follows:-
“7. Learned Counsel for the State submitted that the accused Respondent had
installed a transformer in his field and left the electric wires naked
which was a negligent act. The deceased Sushila Bai died on account of the
said naked wire which had high voltage and was not visible in the dark. The
offence having been fully proved by the evidence on record, the High Court
was not justified in reducing the sentence to 10 days which was not just
and fair. Even if liberal view on sentence of imprisonment was to be taken,
the High Court ought to have enhanced the sentence of fine and awarded a
reasonable compensation as a condition for reduction of sentence.

8. We find force in the submission. It is the duty of the Court to award
just sentence to a convict against whom charge is proved. While every
mitigating or aggravating circumstance may be given due weight, mechanical
reduction of sentence to the period already undergone cannot be
appreciated. Sentence has to be fair not only to the accused but also to
the victim and the society. It is also the duty of the court to duly
consider the aspect of rehabilitating the victim. Unfortunately, these
factors are missing in the impugned order. No cogent reason has been
assigned for imposing only 10 days sentence when an innocent life has been
lost.”

After so stating the court referred to the decision in Suresh v. State of
Haryana[5] and enhanced the compensation taking note of the financial
capacity of the accused respondent therein, and directed as follows:-
“10. As already observed, the Respondent having been found guilty of
causing death by his negligence, the High Court was not justified in
reducing the sentence of imprisonment to 10 days without awarding any
compensation to the heirs of the deceased. We are of the view that in the
facts and circumstances of the case, the order of the High Court can be
upheld only with the modification that the accused will pay compensation of
Rs. 2 lakhs to the heirs of the deceased within six months. In default, he
will undergo RI for six months. The compensation of Rs. 2 lakhs is being
fixed having regard to the limited financial resources of the accused but
the said compensation may not be adequate for the heirs of the deceased. In
such situation, in addition to the compensation to be paid by the accused,
the State can be required to pay compensation Under Section 357-A. As per
judgment of this Court in Suresh (supra), the scheme adopted by the State
of Kerala is applicable to all the States and the said scheme provides for
compensation upto Rs. 5 lakhs in the case of death. In the present case, it
will be appropriate, in the interests of justice, to award interim
compensation of Rs. 3 lakhs Under Section 357-A payable out of the funds
available/to be made available by the State of Madhya Pradesh with the
District Legal Services, Authority, Guna. In case, the accused does not pay
the compensation awarded as above, the State of Madhya Pradesh will pay the
entire amount of compensation of Rs. 5 lakhs within three months after
expiry of the time granted to the accused.”

9. In our considered view the decision in the said case has to be
confined to the facts of that case. It cannot be said as a proposition of
law that whenever an accused offers acceptable compensation for
rehabilitation of a victim, regardless of the gravity of the crime under
Section 304A, there can be reduction of sentence.
10. In this context, we may refer with profit to the decision in
Balwinder Singh (supra) wherein the High Court had allowed the revision and
reduced the quantum of sentence awarded by the Judicial Magistrate, First
Class, for the offences punishable under Section 304A, 337, 279 of IPC by
reducing the sentence of imprisonment already undergone that is 15 days.
The court referred to the decision in Dalbir Singh v. State of Haryana[6]
and reproduced two paragraphs which we feel extremely necessary for
reproduction:-
“1. When automobiles have become death traps any leniency shown to drivers
who are found guilty of rash driving would be at the risk of further
escalation of road accidents. All those who are manning the steering of
automobiles, particularly professional drivers, must be kept under constant
reminders of their duty to adopt utmost care and also of the consequences
befalling them in cases of dereliction. One of the most effective ways of
keeping such drivers under mental vigil is to maintain a deterrent element
in the sentencing sphere. Any latitude shown to them in that sphere would
tempt them to make driving frivolous and a frolic.
* * *
13. Bearing in mind the galloping trend in road accidents in India and the
devastating consequences visiting the victims and their families, criminal
courts cannot treat the nature of the offence under Section 304-A IPC as
attracting the benevolent provisions of Section 4 of the Probation of
Offenders Act. While considering the quantum of sentence to be imposed for
the offence of causing death by rash or negligent driving of automobiles,
one of the prime considerations should be deterrence. A professional driver
pedals the accelerator of the automobile almost throughout his working
hours. He must constantly inform himself that he cannot afford to have a
single moment of laxity or inattentiveness when his leg is on the pedal of
a vehicle in locomotion. He cannot and should not take a chance thinking
that a rash driving need not necessarily cause any accident; or even if any
accident occurs it need not necessarily result in the death of any human
being; or even if such death ensues he might not be convicted of the
offence; and lastly, that even if he is convicted he would be dealt with
leniently by the court. He must always keep in his mind the fear psyche
that if he is convicted of the offence for [pic]causing death of a human
being due to his callous driving of the vehicle he cannot escape from a
jail sentence. This is the role which the courts can play, particularly at
the level of trial courts, for lessening the high rate of motor accidents
due to callous driving of automobiles.”

11. In B. Nagabhushanam v. State of Karnataka[7] the appellant was
directed to undergo simple imprisonment for six months for the offences
punishable under Section 304A IPC. The two-Judge Bench referred to Dalbir
Singh (supra) and declined to interfere with the quantum of sentence. Be
it stated, in the said case a passage from Ratan Singh v. State of
Punjab[8] was quoted:-
“Nevertheless, sentencing must have a policy of correction. This driver, if
he has to become a good driver, must have a better training in traffic laws
and moral responsibility, with special reference to the potential injury to
human life and limb. Punishment in this area must, therefore, be
accompanied by these components. The State, we hope, will attach a course
for better driving together with a livelier sense of responsibility, when
the punishment is for driving offences. Maybe, the State may consider, in
case of men with poor families, occasional parole and reformatory courses
on appropriate application, without the rigour of the old rules which are
subject to Government discretion.”

12. In Guru Basavaraj (supra) the appellant was found guilty for the
offences punishable under Sections 337, 338, 279 and 304A IPC and sentenced
to suffer simple imprisonment of six months and to pay a fine of Rs.2000/-
and in default to suffer simple imprisonment of 45 days. The two-Judge
Bench after placing reliance on State of Karnataka v. Krishna[9], Sevaka
Perumal v. State of T.N.[10], Jashubha Bharatsinh Gohil v. State of
Gujarat[11], State of Karnataka v. Sharanappa Basanagouda Aregoudar[12] and
State of M.P. v. Saleem[13] opined that there is a constant concern of the
court on imposition of adequate sentence in respect of commission of
offences regard being had to the nature of the offence and demand of the
conscience of the society. There has been emphasis on the concern to
impose adequate sentence for the offence punishable under Section 304A IPC.
The Court has observed that it is worthy to note that in certain
circumstances, the mitigating factors have been taken into consideration
but the said aspect is dependent on the facts of each case. As the trend of
authorities would show, the proficiency in professional driving is
emphasised upon and deviation therefrom that results in rash and negligent
driving and causes accident has been condemned. In a motor accident, when a
number of people sustain injuries and a death occurs, it creates a stir in
the society; sense of fear prevails all around. The negligence of one
shatters the tranquility of the collective. When such an accident occurs,
it has the effect potentiality of making victims in many a layer and
creating a concavity in the social fabric. The agony and anguish of the
affected persons, both direct and vicarious, can have nightmarish effect.
It has its impact on the society and the impact is felt more when accidents
take place quite often because of rash driving by drunken, negligent or,
for that matter, adventurous drivers who have, in a way, no concern for
others. Be it noted, grant of compensation under the provisions of the
Motor Vehicles Act, 1988 is in a different sphere altogether. Grant of
compensation under Section 357(3) CrPC with a direction that the same
should be paid to the person who has suffered any loss or injury by reason
of the act for which the accused has been sentenced has a different contour
and the same is not to be regarded as a substitute in all circumstances for
adequate sentence. Thereafter, the Court proceeded to observe:-
“32. We may note with profit that an appropriate punishment works as an eye-
opener for the persons who are not careful while driving vehicles on the
road and exhibit a careless attitude possibly harbouring the notion that
they would be shown indulgence or lives of others are like “flies to the
wanton boys”. They totally forget that the lives of many are in their
hands, and the sublimity of safety of a human being is given an indecent
burial by their rash and negligent act.

33. There can hardly be any cavil that there has to be a proportion between
the crime and the punishment. It is the duty of the court to see that
appropriate sentence is imposed regard being had to the commission of the
crime and its impact on the social order. The cry of the collective for
justice [pic]which includes adequate punishment cannot be lightly ignored.”

Being of this view, the Court declined to interfere.

13. In Siriya v. State of M.P.[14] it has been held as follows:-
“Protection of society and stamping out criminal proclivity must be the
object of law which must be achieved by imposing appropriate sentence.
Therefore, law as a cornerstone of the edifice of “order” should meet the
challenges confronting the society. Friedman in his Law in Changing Society
stated that: “State of criminal law continues to be-as it should be-a
decisive reflection of social consciousness of society”. Therefore, in
operating the sentencing system, law should adopt the corrective machinery
or deterrence based on factual matrix. By deft modulation sentencing
process be stern where it should be, and tempered with mercy where it
warrants to be.”

14. In Alister Anthony Pareira v. State of Maharashtra[15] while
emphasizing on the inherent danger the Court observed thus:-
“39. Like Section 304-A, Sections 279, 336, 337 and 338 IPC are attracted
for only the negligent or rash act. The scheme of Sections 279, 304-A, 336,
337 and 338 leaves no manner of doubt that these offences are punished
because of the inherent danger of the acts specified therein irrespective
of knowledge or intention to produce the result and irrespective of the
result. These sections make punishable the acts themselves which are likely
to cause death or injury to human life.”

15. While dealing with the policy of sentencing in Gopal Singh (supra)
the two-Judge Bench quoted a paragraph from Shailesh Jasvantbhai v. State
of Gujarat[16] which is as follows:-
“7. The law regulates social interests, arbitrates conflicting claims and
demands. Security of persons and property of the people is an essential
function of the State. It could be achieved through instrumentality of
criminal law. Undoubtedly, there is a cross-cultural conflict where living
law must find answer to the new challenges and the courts are required to
mould the sentencing system to meet the challenges. The contagion of
lawlessness would undermine social order and lay it in ruins. Protection of
society and stamping out criminal proclivity must be the object of law
which must be achieved by imposing appropriate sentence. Therefore, law as
a cornerstone of the edifice of ‘order’ should meet the challenges
confronting the society. Friedman in his Law in Changing Society stated
that: ‘State of criminal law continues to be-as it should be-a decisive
reflection of social consciousness of society.’ Therefore, in operating the
sentencing system, law should adopt the corrective machinery or deterrence
based on factual matrix. By deft modulation, sentencing process be stern
where it should be, and tempered with mercy where it warrants to be. The
facts and given circumstances in each case, the nature of the crime, the
manner in which it was planned and committed, the motive for commission of
the crime, the conduct of the accused, the nature of weapons used and all
other attending circumstances are relevant facts which would enter into the
area of consideration.”

In the said case it has been laid as follows:-
“18. Just punishment is the collective cry of the society. While the
collective cry has to be kept uppermost in the mind, simultaneously the
principle of proportionality between the crime and punishment cannot be
totally brushed aside. The principle of just punishment is the bedrock of
sentencing in respect of a criminal offence. A punishment should not be
disproportionately excessive. The concept of proportionality allows a
significant discretion to the Judge but the same has to be guided by
certain principles. In certain cases, the nature of culpability, the
antecedents of the [pic]accused, the factum of age, the potentiality of the
convict to become a criminal in future, capability of his reformation and
to lead an acceptable life in the prevalent milieu, the effect – propensity
to become a social threat or nuisance, and sometimes lapse of time in the
commission of the crime and his conduct in the interregnum bearing in mind
the nature of the offence, the relationship between the parties and
attractability of the doctrine of bringing the convict to the value-based
social mainstream may be the guiding factors. Needless to emphasise, these
are certain illustrative aspects put forth in a condensed manner. We may
hasten to add that there can neither be a straitjacket formula nor a
solvable theory in mathematical exactitude. It would be dependent on the
facts of the case and rationalised judicial discretion. Neither the
personal perception of a Judge nor self-adhered moralistic vision nor
hypothetical apprehensions should be allowed to have any play. For every
offence, a drastic measure cannot be thought of. Similarly, an offender
cannot be allowed to be treated with leniency solely on the ground of
discretion vested in a court. The real requisite is to weigh the
circumstances in which the crime has been committed and other concomitant
factors which we have indicated hereinbefore and also have been stated in a
number of pronouncements by this Court. On such touchstone, the sentences
are to be imposed. The discretion should not be in the realm of fancy. It
should be embedded in the conceptual essence of just punishment.”

16. In Shyam Narain v. State (NCT of Delhi) [17] though in a different
context while dealing with the issue of sentencing it has been stated that
primarily it is to be borne in mind that sentencing for any offence has a
social goal. Sentence is to be imposed regard being had to the nature of
the offence and the manner in which the offence has been committed. The
fundamental purpose of imposition of sentence is based on the principle
that the accused must realise that the crime committed by him has not only
created a dent in his life but also a concavity in the social fabric. The
purpose of just punishment is designed so that the individuals in the
society which ultimately constitute the collective do not suffer time and
again for such crimes. It serves as a deterrent. True it is, on certain
occasions, opportunities may be granted to the convict for reforming
himself but it is equally true that [pic]the principle of proportionality
between an offence committed and the penalty imposed are to be kept in
view. While carrying out this complex exercise, it is obligatory on the
part of the court to see the impact of the offence on the society as a
whole and its ramifications on the immediate collective as well as its
repercussions on the victim.
17. In the instant case the factum of rash and negligent driving has been
established. This court has been constantly noticing the increase in
number of road accidents and has also noticed how the vehicle drivers have
been totally rash and negligent. It seems to us driving in a drunken
state, in a rash and negligent manner or driving with youthful adventurous
enthusiasm as if there are no traffic rules or no discipline of law has
come to the centre stage.
The protagonists, as we perceive, have lost all respect for law. A man
with the means has, in possibility, graduated himself to harbour the idea
that he can escape from the substantive sentence by payment of
compensation. Neither the law nor the court that implements the law should
ever get oblivious of the fact that in such accidents precious lives are
lost or the victims who survive are crippled for life which, in a way,
worse then death. Such developing of notions is a dangerous phenomenon in
an orderly society. Young age cannot be a plea to be accepted in all
circumstances. Life to the poor or the impecunious is as worth living for
as it is to the rich and the luxuriously temperamental. Needless to say,
the principle of sentencing recognizes the corrective measures but there
are occasions when the deterrence is an imperative necessity depending upon
the facts of the case. In our opinion, it is a fit case where we are
constrained to say that the High Court has been swayed away by the passion
of mercy in applying the principle that payment of compensation is a factor
for reduction of sentence to 24 days. It is absolutely in the realm of
misplaced sympathy. It is, in a way mockery of justice. Because justice
is “the crowning glory”, “the sovereign mistress” and “queen of virtue” as
Cicero had said. Such a crime blights not only the lives of the victims
but of many others around them. It ultimately shatters the faith of the
public in judicial system. In our view, the sentence of one year as
imposed by the trial Magistrate which has been affirmed by the appellate
court should be reduced to six months.
18. Before parting with the case we are compelled to observe that India
has a disreputable record of road accidents. There is a non-challant
attitude among the drivers. They feel that they are the “Emperors of all
they survey”. Drunkenness contributes to careless driving where the other
people become their prey. The poor feel that their lives are not safe, the
pedestrians think of uncertainty and the civilized persons drive in
constant fear but still apprehensive about the obnoxious attitude of the
people who project themselves as “larger than life”. In such obtaining
circumstances, we are bound to observe that the lawmakers should
scrutinize, re-look and re-visit the sentencing policy in Section 304A,
IPC. We say so with immense anguish.
19. Resultantly, the appeal is allowed to the extent indicated above and
the respondent be taken into custody forthwith to suffer the remaining
period of sentence.
………………………………….J.
[DIPAK MISRA]

………………………………….J.
[PRAFULLA C. PANT]

NEW DELHI
MARCH 30, 2015.

———————–
[1] (2012) 2 SCC 182
[2] (2012) 8 SCC 734
[3] (2013) 7 SCC 545
[4] 2015 (2) SCALE 386
[5] Crl Appeal No. 420 of 2012, decided on 28.11.2014
[6] (2000) 5 SCC 82
[7] (2008) 5 SCC 730
[8] (1979) 4 SCC719
[9] (1987) 1 SCC 538
[10] (1991) 3 SCC 471
[11] (19940 4 SCC 353
[12] (2002) 3 SCC 738
[13] (2005) 5 SCC 554
[14] (2008) 8 SCC 72
[15] (2012) 2 SCC 648
[16] (2006) 2 SCC 359
[17] (2013) 7 SCC 77

———————–
24

supreme-court-l

[pic]REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL/CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO.167 OF 2012

SHREYA SINGHAL … PETITIONER

VERSUS

UNION OF INDIA … RESPONDENT

WITH

WRIT PETITION (CIVIL) NO.21 OF 2013

WRIT PETITION (CIVIL) NO.23 OF 2013

WRIT PETITION (CIVIL) NO. 97 OF 2013

WRIT PETITION (CRIMINAL) NO.199 OF 2013

WRIT PETITION (CIVIL) NO. 217 OF 2013

WRIT PETITION (CRIMINAL) NO.222 OF 2013

WRIT PETITION (CRIMINAL) NO.225 OF 2013

WRIT PETITION (CIVIL) NO.758 OF 2014

WRIT PETITION (CRIMINAL) NO.196 OF 2014

J U D G M E N T

R.F. NARIMAN, J.

1. This batch of writ petitions filed under Article 32 of the
Constitution of India raises very important and far-reaching questions
relatable primarily to the fundamental right of free speech and expression
guaranteed by Article 19(1)(a) of the Constitution of India. The immediate
cause for concern in these petitions is Section 66A of the Information
Technology Act of 2000. This Section was not in the Act as originally
enacted, but came into force by virtue of an Amendment Act of 2009 with
effect from 27.10.2009. Since all the arguments raised by several counsel
for the petitioners deal with the unconstitutionality of this Section it is
set out hereinbelow:

“66-A. Punishment for sending offensive messages through communication
service, etc.-Any person who sends, by means of a computer resource or a
communication device,-
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of
causing annoyance, inconvenience, danger, obstruction, insult, injury,
criminal intimidation, enmity, hatred or ill will, persistently by making
use of such computer resource or a communication device; or
(c) any electronic mail or electronic mail message for the purpose of
causing annoyance or inconvenience or to deceive or to mislead the
addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a term which may extend to three
years and with fine.

Explanation.- For the purposes of this section, terms “electronic mail” and
“electronic mail message” means a message or information created or
transmitted or received on a computer, computer system, computer resource
or communication device including attachments in text, image, audio, video
and any other electronic record, which may be transmitted with the
message.”[1]

2. A related challenge is also made to Section 69A introduced by the
same amendment which reads as follows:-
“69-A. Power to issue directions for blocking for public access of any
information through any computer resource.-(1) Where the Central Government
or any of its officers specially authorised by it in this behalf is
satisfied that it is necessary or expedient so to do, in the interest of
sovereignty and integrity of India, defence of India, security of the
State, friendly relations with foreign States or public order or for
preventing incitement to the commission of any cognizable offence relating
to above, it may subject to the provisions of sub-section (2), for reasons
to be recorded in writing, by order, direct any agency of the Government or
intermediary to block for access by the public or cause to be blocked for
access by the public any information generated, transmitted, received,
stored or hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking for access
by the public may be carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under
sub-section (1) shall be punished with an imprisonment for a term which may
extend to seven years and shall also be liable to fine.”

3. The Statement of Objects and Reasons appended to the Bill which
introduced the Amendment Act stated in paragraph 3 that:

“3. A rapid increase in the use of computer and internet has given rise to
new forms of crimes like publishing sexually explicit materials in
electronic form, video voyeurism and breach of confidentiality and leakage
of data by intermediary, e-commerce frauds like personation commonly known
as Phishing, identity theft and offensive messages through communication
services. So, penal provisions are required to be included in the
Information Technology Act, the Indian Penal code, the Indian Evidence Act
and the code of Criminal Procedure to prevent such crimes.”

4. The petitioners contend that the very basis of Section 66A – that it
has given rise to new forms of crimes – is incorrect, and that Sections 66B
to 67C and various Sections of the Indian Penal Code (which will be
referred to hereinafter) are good enough to deal with all these crimes.

5. The petitioners’ various counsel raised a large number of points as
to the constitutionality of Section 66A. According to them, first and
foremost Section 66A infringes the fundamental right to free speech and
expression and is not saved by any of the eight subjects covered in Article
19(2). According to them, the causing of annoyance, inconvenience, danger,
obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-
will are all outside the purview of Article 19(2). Further, in creating an
offence, Section 66A suffers from the vice of vagueness because unlike the
offence created by Section 66 of the same Act, none of the aforesaid terms
are even attempted to be defined and cannot be defined, the result being
that innocent persons are roped in as well as those who are not. Such
persons are not told clearly on which side of the line they fall; and it
would be open to the authorities to be as arbitrary and whimsical as they
like in booking such persons under the said Section. In fact, a large
number of innocent persons have been booked and many instances have been
given in the form of a note to the Court. The enforcement of the said
Section would really be an insidious form of censorship which impairs a
core value contained in Article 19(1)(a). In addition, the said Section
has a chilling effect on the freedom of speech and expression. Also, the
right of viewers is infringed as such chilling effect would not give them
the benefit of many shades of grey in terms of various points of view that
could be viewed over the internet.

The petitioners also contend that their rights under Articles 14 and 21 are
breached inasmuch there is no intelligible differentia between those who
use the internet and those who by words spoken or written use other mediums
of communication. To punish somebody because he uses a particular medium of
communication is itself a discriminatory object and would fall foul of
Article 14 in any case.

6. In reply, Mr. Tushar Mehta, learned Additional Solicitor General
defended the constitutionality of Section 66A. He argued that the
legislature is in the best position to understand and appreciate the needs
of the people. The Court will, therefore, interfere with the legislative
process only when a statute is clearly violative of the rights conferred on
the citizen under Part-III of the Constitution. There is a presumption in
favour of the constitutionality of an enactment. Further, the Court would
so construe a statute to make it workable and in doing so can read into it
or read down the provisions that are impugned. The Constitution does not
impose impossible standards of determining validity. Mere possibility of
abuse of a provision cannot be a ground to declare a provision invalid.
Loose language may have been used in Section 66A to deal with novel methods
of disturbing other people’s rights by using the internet as a tool to do
so. Further, vagueness is not a ground to declare a statute
unconstitutional if the statute is otherwise legislatively competent and
non-arbitrary. He cited a large number of judgments before us both from
this Court and from overseas to buttress his submissions.

Freedom of Speech and Expression

Article 19(1)(a) of the Constitution of India states as follows:

“Article 19. Protection of certain rights regarding freedom of speech, etc.-
(1) All citizens shall have the right-

(a) to freedom of speech and expression;”

7. Article 19(2) states:

“Article 19. Protection of certain rights regarding freedom of speech, etc.-
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of
any existing law, or prevent the State from making any law, in so far as
such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interests of the sovereignty and
integrity of India, the security of the State, friendly relations with
foreign States, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence.”

8. The Preamble of the Constitution of India inter alia speaks of
liberty of thought, expression, belief, faith and worship. It also says
that India is a sovereign democratic republic. It cannot be over emphasized
that when it comes to democracy, liberty of thought and expression is a
cardinal value that is of paramount significance under our constitutional
scheme.

9. Various judgments of this Court have referred to the importance of
freedom of speech and expression both from the point of view of the liberty
of the individual and from the point of view of our democratic form of
government. For example, in the early case of Romesh Thappar v. State of
Madras, [1950] S.C.R. 594 at 602, this Court stated that freedom of speech
lay at the foundation of all democratic organizations. In Sakal Papers (P)
Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 842 at 866, a Constitution
Bench of this Court said freedom of speech and expression of opinion is of
paramount importance under a democratic constitution which envisages
changes in the composition of legislatures and governments and must be
preserved. In a separate concurring judgment Beg,J. said, in Bennett
Coleman & Co. & Ors. v. Union of India & Ors., [1973] 2 S.C.R. 757 at 829,
that the freedom of speech and of the press is the Ark of the Covenant of
Democracy because public criticism is essential to the working of its
institutions.[2]

10. Equally, in S. Khushboo v. Kanniamal & Anr., (2010) 5 SCC 600 this
Court stated, in paragraph 45 that the importance of freedom of speech and
expression though not absolute was necessary as we need to tolerate
unpopular views. This right requires the free flow of opinions and ideas
essential to sustain the collective life of the citizenry. While an
informed citizenry is a pre-condition for meaningful governance, the
culture of open dialogue is generally of great societal importance.

11. This last judgment is important in that it refers to the “market
place of ideas” concept that has permeated American Law. This was put in
the felicitous words of Justice Holmes in his famous dissent in Abrams v.
United States, 250 US 616 (1919), thus:

“But when men have realized that time has upset many fighting faiths, they
may come to believe even more than they believe the very foundations of
their own conduct that the ultimate good desired is better reached by free
trade in ideas-that the best test of truth is the power of thought to get
itself accepted in the competition of the market, and that truth is the
only ground upon which their wishes safely can be carried out. That at any
rate is the theory of our Constitution.”

12. Justice Brandeis in his famous concurring judgment in Whitney v.
California, 71 L. Ed. 1095 said:
“Those who won our independence believed that the final end of the state
was to make men free to develop their faculties, and that in its government
the deliberative forces should prevail over the arbitrary. They valued
liberty both as an end and as a means. They believed liberty to be the
secret of happiness and courage to be the secret of liberty. They believed
that freedom to think as you will and to speak as you think are means
indispensable to the discovery and spread of political truth; that without
free speech and assembly discussion would be futile; that with them,
discussion affords ordinarily adequate protection against the dissemination
of noxious doctrine; that the greatest menace to freedom is an inert
people; that public discussion is a political duty; and that this should be
a fundamental principle of the American government. They recognized the
risks to which all human institutions are subject. But they knew that order
cannot be secured merely through fear of punishment for its infraction;
that it is hazardous to discourage thought, hope and imagination; that fear
breeds repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss
freely supposed grievances and proposed remedies; and that the fitting
remedy for evil counsels is good ones. Believing in the power of reason as
applied through public discussion, they eschewed silence coerced by law-the
argument of force in its worst form. Recognizing the occasional tyrannies
of governing majorities, they amended the Constitution so that free speech
and assembly should be guaranteed.
Fear of serious injury cannot alone justify suppression of free speech and
assembly. Men feared witches and burnt women. It is the function of speech
to free men from the bondage of irrational fears. To justify suppression of
free speech there must be reasonable ground to fear that serious evil will
result if free speech is practiced. There must be reasonable ground to
believe that the danger apprehended is imminent. There must be reasonable
ground to believe that the evil to be prevented is a serious one. Every
denunciation of existing law tends in some measure to increase the
probability that there will be violation of it. Condonation of a breach
enhances the probability. Expressions of approval add to the probability.
Propagation of the criminal state of mind by teaching syndicalism increases
it. Advocacy of lawbreaking heightens it still further. But even advocacy
of violation, however reprehensible morally, is not a justification for
denying free speech where the advocacy falls short of incitement and there
is nothing to indicate that the advocacy would be immediately acted on. The
wide difference between advocacy and incitement, between preparation and
attempt, between assembling and conspiracy, must be borne in mind. In order
to support a finding of clear and present danger it must be shown either
that immediate serious violence was to be expected or was advocated, or
that the past conduct furnished reason to believe that such advocacy was
then contemplated.” (at page 1105, 1106)

13. This leads us to a discussion of what is the content of the
expression “freedom of speech and expression”. There are three concepts
which are fundamental in understanding the reach of this most basic of
human rights. The first is discussion, the second is advocacy, and the
third is incitement. Mere discussion or even advocacy of a particular
cause howsoever unpopular is at the heart of Article 19(1)(a). It is only
when such discussion or advocacy reaches the level of incitement that
Article 19(2) kicks in.[3] It is at this stage that a law may be made
curtailing the speech or expression that leads inexorably to or tends to
cause public disorder or tends to cause or tends to affect the sovereignty
& integrity of India, the security of the State, friendly relations with
foreign States, etc. Why it is important to have these three concepts in
mind is because most of the arguments of both petitioners and respondents
tended to veer around the expression “public order”.

14. It is at this point that a word needs to be said about the use of
American judgments in the context of Article 19(1)(a). In virtually every
significant judgment of this Court, reference has been made to judgments
from across the Atlantic. Is it safe to do so?

15. It is significant to notice first the differences between the US
First Amendment and Article 19(1)(a) read with Article 19(2). The first
important difference is the absoluteness of the U.S. first Amendment –
Congress shall make no law which abridges the freedom of speech. Second,
whereas the U.S. First Amendment speaks of freedom of speech and of the
press, without any reference to “expression”, Article 19(1)(a) speaks of
freedom of speech and expression without any reference to “the press”.
Third, under the US Constitution, speech may be abridged, whereas under our
Constitution, reasonable restrictions may be imposed. Fourth, under our
Constitution such restrictions have to be in the interest of eight
designated subject matters – that is any law seeking to impose a
restriction on the freedom of speech can only pass muster if it is
proximately related to any of the eight subject matters set out in Article
19(2).

16. Insofar as the first apparent difference is concerned, the U.S.
Supreme Court has never given literal effect to the declaration that
Congress shall make no law abridging the freedom of speech. The approach
of the Court which is succinctly stated in one of the early U.S. Supreme
Court Judgments, continues even today. In Chaplinsky v. New Hampshire, 86
L. Ed. 1031, Justice Murphy who delivered the opinion of the Court put it
thus:-

“Allowing the broadest scope to the language and purpose of the Fourteenth
Amendment, it is well understood that the right of free speech is not
absolute at all times and under all circumstances. There are certain well-
defined and narrowly limited classes of speech, the prevention and
punishment of which has never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane, the libelous, and
the insulting or ‘fighting’ words-those which by their very utterance
inflict injury or tend to incite an immediate breach of the peace. It has
been well observed that such utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly outweighed by the
social interest in order and morality. ‘Resort to epithets or personal
abuse is not in any proper sense communication of information or opinion
safeguarded by the Constitution, and its punishment as a criminal act would
raise no question under that instrument.’ Cantwell v. Connecticut, 310 U.S.
296, 309, 310, 60 S.Ct. 900, 906, 84 L.Ed.1213, 128 A.L.R. 1352.” (at
page 1035)

17. So far as the second apparent difference is concerned, the American
Supreme Court has included “expression” as part of freedom of speech and
this Court has included “the press” as being covered under Article
19(1)(a), so that, as a matter of judicial interpretation, both the US and
India protect the freedom of speech and expression as well as press
freedom. Insofar as abridgement and reasonable restrictions are concerned,
both the U.S. Supreme Court and this Court have held that a restriction in
order to be reasonable must be narrowly tailored or narrowly interpreted so
as to abridge or restrict only what is absolutely necessary. It is only
when it comes to the eight subject matters that there is a vast difference.
In the U.S., if there is a compelling necessity to achieve an important
governmental or societal goal, a law abridging freedom of speech may pass
muster. But in India, such law cannot pass muster if it is in the interest
of the general public. Such law has to be covered by one of the eight
subject matters set out under Article 19(2). If it does not, and is
outside the pale of 19(2), Indian courts will strike down such law.

18. Viewed from the above perspective, American judgments have great
persuasive value on the content of freedom of speech and expression and the
tests laid down for its infringement. It is only when it comes to sub-
serving the general public interest that there is the world of a
difference. This is perhaps why in Kameshwar Prasad & Ors. v. The State of
Bihar & Anr., 1962 Supp. (3) S.C.R. 369, this Court held:

“As regards these decisions of the American Courts, it should be borne in
mind that though the First Amendment to the Constitution of the United
State reading “Congress shall make no law…. abridging the freedom of
speech…” appears to confer no power on the Congress to impose any
restriction on the exercise of the guaranteed right, still it has always
been understood that the freedom guaranteed is subject to the police power
– the scope of which however has not been defined with precision or
uniformly. It is on the basis of the police power to abridge that freedom
that the constitutional validity of laws penalising libels, and those
relating to sedition, or to obscene publications etc., has been sustained.
The resultant flexibility of the restrictions that could be validly imposed
renders the American decisions inapplicable to and without much use for
resolving the questions arising under Art. 19(1) (a) or (b) of our
Constitution wherein the grounds on which limitations might be placed on
the guaranteed right are set out with definiteness and precision.” ( At
page 378)

19. But when it comes to understanding the impact and content of freedom
of speech, in Indian Express Newspapers (Bombay) Private Limited & Ors. v.
Union of India & Ors., (1985) 2 SCR 287, Venkataramiah,J. stated:

“While examining the constitutionality of a law which is alleged to
contravene Article 19 (1) (a) of the Constitution, we cannot, no doubt, be
solely guided by the decisions of the Supreme Court of the United States of
America. But in order to understand the basic principles of freedom of
speech and expression and the need for that freedom in a democratic
country, we may take them into consideration. The pattern of Article 19 (1)
(a) and of Article 19 (1) (g) of our constitution is different from the
pattern of the First Amendment to the American Constitution which is almost
absolute in its terms. The rights guaranteed under Article 19 (1) (a) and
Article 19 (1) (g) of the Constitution are to be read along with clauses
(2) and (6) of Article 19 which carve out areas in respect of which valid
legislation can be made.” (at page 324)

20. With these prefatory remarks, we will now go to the other aspects of
the challenge made in these writ petitions and argued before us.

A. Article 19(1)(a) –

Section 66A has been challenged on the ground that it casts the net very
wide – “all information” that is disseminated over the internet is included
within its reach. It will be useful to note that Section 2(v) of
Information Technology Act, 2000 defines information as follows:

“2. Definitions.-(1) In this Act, unless the context otherwise requires,-
(v) “Information” includes data, message, text, images, sound, voice,
codes, computer programmes, software and databases or micro film or
computer generated micro fiche.”
Two things will be noticed. The first is that the definition is an
inclusive one. Second, the definition does not refer to what the content
of information can be. In fact, it refers only to the medium through which
such information is disseminated. It is clear, therefore, that the
petitioners are correct in saying that the public’s right to know is
directly affected by Section 66A. Information of all kinds is roped in –
such information may have scientific, literary or artistic value, it may
refer to current events, it may be obscene or seditious. That such
information may cause annoyance or inconvenience to some is how the offence
is made out. It is clear that the right of the people to know – the market
place of ideas – which the internet provides to persons of all kinds is
what attracts Section 66A. That the information sent has to be annoying,
inconvenient, grossly offensive etc., also shows that no distinction is
made between mere discussion or advocacy of a particular point of view
which may be annoying or inconvenient or grossly offensive to some and
incitement by which such words lead to an imminent causal connection with
public disorder, security of State etc. The petitioners are right in
saying that Section 66A in creating an offence against persons who use the
internet and annoy or cause inconvenience to others very clearly affects
the freedom of speech and expression of the citizenry of India at large in
that such speech or expression is directly curbed by the creation of the
offence contained in Section 66A.

In this regard, the observations of Justice Jackson in American
Communications Association v. Douds, 94 L. Ed. 925 are apposite:

“Thought control is a copyright of totalitarianism, and we have no claim to
it. It is not the function of our Government to keep the citizen from
falling into error; it is the function of the citizen to keep the
Government from falling into error. We could justify any censorship only
when the censors are better shielded against error than the censored.”

Article 19(2)

One challenge to Section 66A made by the petitioners’ counsel is that the
offence created by the said Section has no proximate relation with any of
the eight subject matters contained in Article 19(2). We may incidentally
mention that the State has claimed that the said Section can be supported
under the heads of public order, defamation, incitement to an offence and
decency or morality.

21. Under our constitutional scheme, as stated earlier, it is not open to
the State to curtail freedom of speech to promote the general public
interest. In Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962] 3
S.C.R. 842, this Court said:

“It may well be within the power of the State to place, in the interest of
the general public, restrictions upon the right of a citizen to carry on
business but it is not open to the State to achieve this object by directly
and immediately curtailing any other freedom of that citizen guaranteed by
the Constitution and which is not susceptible of abridgment on the same
grounds as are set out in clause (6) of Article 19. Therefore, the right of
freedom of speech cannot be taken away with the object of placing
restrictions on the business activities of a citizen. Freedom of speech can
be restricted only in the interests of the security of the State, friendly
relations with foreign State, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence. It
cannot, like the freedom to carry on business, be curtailed in the interest
of the general public. If a law directly affecting it is challenged, it is
no answer that the restrictions enacted by it are justifiable under clauses
(3) to (6). For, the scheme of Article 19 is to enumerate different
freedoms separately and then to specify the extent of restrictions to which
they may be subjected and the objects for securing which this could be
done. A citizen is entitled to enjoy each and every one of the freedoms
together and clause (1) does not prefer one freedom to another. That is the
plain meaning of this clause. It follows from this that the State cannot
make a law which directly restricts one freedom even for securing the
better enjoyment of another freedom. All the greater reason, therefore for
holding that the State cannot directly restrict one freedom by placing an
otherwise permissible restriction on another freedom.” (at page 863)

22. Before we come to each of these expressions, we must understand what
is meant by the expression “in the interests of”. In The Superintendent,
Central Prison, Fatehgarh v. Ram Manohar Lohia, [1960] 2 S.C.R. 821, this
Court laid down:

“We do not understand the observations of the Chief Justice to mean that
any remote or fanciful connection between the impugned Act and the public
order would be sufficient to sustain its validity. The learned Chief
Justice was only making a distinction between an Act which expressly and
directly purported to maintain public order and one which did not expressly
state the said purpose but left it to be implied there from; and between an
Act that directly maintained public order and that indirectly brought about
the same result. The distinction does not ignore the necessity for intimate
connection between the Act and the public order sought to be maintained by
the Act.” (at pages 834, 835)

“The restriction made “in the interests of public order” must also have
reasonable relation to the object to be achieved, i.e., the public order.
If the restriction has no proximate relationship to the achievement of
public order, it cannot be said that the restriction is a reasonable
restriction within the meaning of the said clause.” (at page 835)

“The decision, in our view, lays down the correct test. The limitation
imposed in the interests of public order to be a reasonable restriction,
should be one which has a proximate connection or nexus with public order,
but not one far-fetched, hypothetical or problematical or too remote in the
chain of its relation with the public order……….There is no proximate
or even foreseeable connection between such instigation and the public
order sought to be protected under section. We cannot accept the argument
of the learned Advocate General that instigation of a single individual not
to pay tax or dues is a spark which may in the long run ignite a
revolutionary movement destroying public order” (at page 836).

Reasonable Restrictions:

23. This Court has laid down what “reasonable restrictions” means in
several cases. In Chintaman Rao v. The State of Madhya Pradesh, [1950]
S.C.R. 759, this Court said:
“The phrase “reasonable restriction” connotes that the limitation imposed
on a person in enjoyment of the right should not be arbitrary or of an
excessive nature, beyond what is required in the interests of the public.
The word “reasonable” implies intelligent care and deliberation, that is,
the choice of a course which reason dictates. Legislation which arbitrarily
or excessively invades the right cannot be said to contain the quality of
reasonableness and unless it strikes a proper balance between the freedom
guaranteed in article 19(1)(g) and the social control permitted by clause
(6) of article 19, it must be held to be wanting in that quality.” (at
page 763)

24. In State of Madras v. V.G. Row, [1952] S.C.R. 597, this Court said:

“This Court had occasion in Dr. Khare’s case (1950) S.C.R. 519 to define
the scope of the judicial review under clause (5) of Article19 where the
phrase “imposing reasonable restriction on the exercise of the right” also
occurs and four out of the five Judges participating in the decision
expressed the view (the other Judge leaving the question open) that both
the substantive and the procedural aspects of the impugned restrictive law
should be examined from the point of view of reasonableness; that is to
say, the Court should consider not only factors such as the duration and
the extent of the restrictions, but also the circumstances under which and
the manner in which their imposition has been authorised. It is important
in this context to bear in mind that the test of reasonableness, where ever
prescribed, should be applied to each, individual statute impugned and no
abstract standard, or general pattern of reasonableness can be laid down as
applicable to all cases. The nature of the right alleged to have been
infringed, the underlying purpose of the restriction imposed, the extent
and urgency of the evil sought to be remedied thereby, the disproportion of
the imposition, the prevailing conditions at the time, should all enter
into the judicial verdict. In evaluating such elusive factors and forming
their own conception of what is reasonable, in all the circumstances of a
given case, it is inevitable that the social philosophy and the scale of
values of the judges participating in the decision should play an important
part, and the limit to their interference with legislative judgment in such
cases can only be dictated by their sense of responsibility and self-
restraint and the sobering reflection that the Constitution is meant not
only for people of their way of thinking but for all, and that the majority
of the elected representatives of the people have, in authorising the
imposition of the restrictions, considered them to be reasonable.” (at page
606-607)
25. Similarly, in Mohd. Faruk v. State of Madhya Pradesh & Ors., [1970] 1
S.C.R. 156, this Court said:

“The Court must in considering the validity of the impugned law imposing a
prohibition on the carrying on of a business or profession, attempt an
evaluation of its direct and immediate impact upon the fundamental rights
of the citizens affected thereby and the larger public interest sought to
be ensured in the light of the object sought to be achieved, the necessity
to restrict the citizen’s freedom, the inherent pernicious nature of the
act prohibited or its capacity or tendency to be harmful to the general
public, the possibility of achieving the object by imposing a less drastic
restraint, and in the absence of exceptional situations such as the
prevalence of a state of emergency-national or local-or the necessity to
maintain essential supplies, or the necessity to stop activities inherently
dangerous, the existence of a machinery to satisfy the administrative
authority that no case for imposing the restriction is made out or that a
less drastic restriction may ensure the object intended to be achieved.”
(at page 161)
26. In Dr. N. B. Khare v. State of Delhi, [1950] S.C.R. 519, a
Constitution Bench also spoke of reasonable restrictions when it comes to
procedure. It said:

“While the reasonableness of the restrictions has to be considered with
regard to the exercise of the right, it does not necessarily exclude from
the consideration of the Court the question of reasonableness of the
procedural part of the law. It is obvious that if the law prescribes five
years externment or ten years externment, the question whether such period
of externment is reasonable, being the substantive part, is necessarily for
the consideration of the court under clause (5). Similarly, if the law
provides the procedure under which the exercise of the right may be
restricted, the same is also for the consideration of the Court, as it has
to determine if the exercise of the right has been reasonably restricted.”
(at page 524)

27. It was argued by the learned Additional Solicitor General that a
relaxed standard of reasonableness of restriction should apply regard being
had to the fact that the medium of speech being the internet differs from
other mediums on several grounds. To appreciate the width and scope of his
submissions, we are setting out his written submission verbatim:

“(i) the reach of print media is restricted to one state or at the most
one country while internet has no boundaries and its reach is global;

(ii) the recipient of the free speech and expression used in a print media
can only be literate persons while internet can be accessed by literate and
illiterate both since one click is needed to download an objectionable post
or a video;

(iii) In case of televisions serials [except live shows] and movies, there
is a permitted pre- censorship’ which ensures right of viewers not to
receive any information which is dangerous to or not in conformity with the
social interest. While in the case of an internet, no such pre-censorship
is possible and each individual is publisher, printer, producer, director
and broadcaster of the content without any statutory regulation;

In case of print media or medium of television and films whatever is truly
recorded can only be published or broadcasted I televised I viewed. While
in case of an internet, morphing of images, change of voices and many other
technologically advance methods to create serious potential social disorder
can be applied.

By the medium of internet, rumors having a serious potential of creating a
serious social disorder can be spread to trillions of people without any
check which is not possible in case of other mediums.

In case of mediums like print media, television and films, it is broadly
not possible to invade privacy of unwilling persons. While in case of an
internet, it is very easy to invade upon the privacy of any individual and
thereby violating his right under Article 21 of the Constitution of India.

By its very nature, in the mediums like newspaper, magazine, television or
a movie, it is not possible to sexually harass someone, outrage the modesty
of anyone, use unacceptable filthy language and evoke communal frenzy which
would lead to serious social disorder. While in the case of an internet, it
is easily possible to do so by a mere click of a button without any
geographical limitations and almost in all cases while ensuring anonymity
of the offender.

By the very nature of the medium, the width and reach of internet is
manifold as against newspaper and films. The said mediums have inbuilt
limitations i.e. a person will have to buy / borrow a newspaper and / or
will have to go to a theater to watch a movie. For television also one
needs at least a room where a television is placed and can only watch those
channels which he has subscribed and that too only at a time where it is
being telecast. While in case of an internet a person abusing the internet,
can commit an offence at any place at the time of his choice and
maintaining his anonymity in almost all cases.

(ix) In case of other mediums, it is impossible to maintain anonymity as a
result of which speech ideal opinions films having serious potential of
creating a social disorder never gets generated since its origin is bound
to be known. While in case of an internet mostly its abuse takes place
under the garb of anonymity which can be unveiled only after thorough
investigation.

(x) In case of other mediums like newspapers, television or films, the
approach is always institutionalized approach governed by industry specific
ethical norms of self conduct. Each newspaper / magazine / movie production
house / TV Channel will have their own institutionalized policies in house
which would generally obviate any possibility of the medium being abused.
As against that use of internet is solely based upon individualistic
approach of each individual without any check, balance or regulatory
ethical norms for exercising freedom of speech and expression under Article
19[ 1] [a].

(xi) In the era limited to print media and cinematograph; or even in case
of publication through airwaves, the chances of abuse of freedom of
expression was less due to inherent infrastructural and logistical
constrains. In the case of said mediums, it was almost impossible for an
individual to create and publish an abusive content and make it available
to trillions of people. Whereas, in the present internet age the said
infrastructural and logistical constrains have disappeared as any
individual using even a smart mobile phone or a portable computer device
can create and publish abusive material on its own, without seeking help of
anyone else and make it available to trillions of people by just one
click.”

28. As stated, all the above factors may make a distinction between the
print and other media as opposed to the internet and the legislature may
well, therefore, provide for separate offences so far as free speech over
the internet is concerned. There is, therefore, an intelligible
differentia having a rational relation to the object sought to be achieved
– that there can be creation of offences which are applied to free speech
over the internet alone as opposed to other mediums of communication.
Thus, an Article 14 challenge has been repelled by us on this ground later
in this judgment. But we do not find anything in the features outlined by
the learned Additional Solicitor General to relax the Court’s scrutiny of
the curbing of the content of free speech over the internet. While it may
be possible to narrowly draw a Section creating a new offence, such as
Section 69A for instance, relatable only to speech over the internet, yet
the validity of such a law will have to be tested on the touchstone of the
tests already indicated above.

29. In fact, this aspect was considered in Secretary Ministry of
Information & Broadcasting, Government of India v. Cricket Association of
Bengal, (1995) 2 SCC 161 in para 37, where the following question was
posed:

“The next question which is required to be answered is whether there is any
distinction between the freedom of the print media and that of the
electronic media such as radio and television, and if so, whether it
necessitates more restrictions on the latter media.”

This question was answered in para 78 thus:

“There is no doubt that since the airwaves/frequencies are a public
property and are also limited, they have to be used in the best interest of
the society and this can be done either by a central authority by
establishing its own broadcasting network or regulating the grant of
licences to other agencies, including the private agencies. What is
further, the electronic media is the most powerful media both because of
its audio-visual impact and its widest reach covering the section of the
society where the print media does not reach. The right to use the airwaves
and the content of the programmes, therefore, needs regulation for
balancing it and as well as to prevent monopoly of information and views
relayed, which is a potential danger flowing from the concentration of the
right to broadcast/telecast in the hands either of a central agency or of
few private affluent broadcasters. That is why the need to have a central
agency representative of all sections of the society free from control both
of the Government and the dominant influential sections of the society.
This is not disputed. But to contend that on that account the restrictions
to be imposed on the right under Article 19(1)(a) should be in addition to
those permissible under Article 19(2) and dictated by the use of public
resources in the best interests of the society at large, is to misconceive
both the content of the freedom of speech and expression and the problems
posed by the element of public property in, and the alleged scarcity of,
the frequencies as well as by the wider reach of the media. If the right to
freedom of speech and expression includes the right to disseminate
information to as wide a section of the population as is possible, the
access which enables the right to be so exercised is also an integral part
of the said right. The wider range of circulation of information or its
greater impact cannot restrict the content of the right nor can it justify
its denial. The virtues of the electronic media cannot become its enemies.
It may warrant a greater regulation over licensing and control and
vigilance on the content of the programme telecast. However, this control
can only be exercised within the framework of Article 19(2) and the
dictates of public interests. To plead for other grounds is to plead for
unconstitutional measures. It is further difficult to appreciate such
contention on the part of the Government in this country when they have a
complete control over the frequencies and the content of the programme to
be telecast. They control the sole agency of telecasting. They are also
armed with the provisions of Article 19(2) and the powers of pre-censorship
under the Cinematograph Act and Rules. The only limitation on the said
right is, therefore, the limitation of resources and the need to use them
for the benefit of all. When, however, there are surplus or unlimited
resources and the public interests so demand or in any case do not prevent
telecasting, the validity of the argument based on limitation of resources
disappears. It is true that to own a frequency for the purposes of
broadcasting is a costly affair and even when there are surplus or
unlimited frequencies, only the affluent few will own them and will be in a
position to use it to subserve their own interest by manipulating news and
views. That also poses a danger to the freedom of speech and expression of
the have-nots by denying them the truthful information on all sides of an
issue which is so necessary to form a sound view on any subject. That is
why the doctrine of fairness has been evolved in the US in the context of
the private broadcasters licensed to share the limited frequencies with the
central agency like the FCC to regulate the programming. But this
phenomenon occurs even in the case of the print media of all the countries.
Hence the body like the Press Council of India which is empowered to
enforce, however imperfectly, the right to reply. The print media further
enjoys as in our country, freedom from pre-censorship unlike the electronic
media.”
Public Order

30. In Article 19(2) (as it originally stood) this sub-head was
conspicuously absent. Because of its absence, challenges made to an order
made under Section 7 of the Punjab Maintenance of Public Order Act and to
an order made under Section 9 (1)(a) of the Madras Maintenance of Public
Order Act were allowed in two early judgments by this Court. Thus in
Romesh Thappar v. State of Madras, [1950] S.C.R. 594, this Court held that
an order made under Section 9(1)(a) of the Madras Maintenance of Public
Order Act (XXIII of 1949) was unconstitutional and void in that it could
not be justified as a measure connected with security of the State. While
dealing with the expression “public order”, this Court held that “public
order” is an expression which signifies a state of tranquility which
prevails amongst the members of a political society as a result of the
internal regulations enforced by the Government which they have
established.

31. Similarly, in Brij Bhushan & Anr. v. State of Delhi, [1950] S.C.R.
605, an order made under Section 7 of the East Punjab Public Safety Act,
1949, was held to be unconstitutional and void for the self-same reason.

32. As an aftermath of these judgments, the Constitution First Amendment
added the words “public order” to Article 19(2).

33. In Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia,
[1960] 2 S.C.R. 821, this Court held that public order is synonymous with
public safety and tranquility; it is the absence of disorder involving
breaches of local significance in contradistinction to national upheavals,
such as revolution, civil strife, war, affecting the security of the State.
This definition was further refined in Dr. Ram Manohar Lohia v. State of
Bihar & Ors., [1966] 1 S.C.R. 709, where this Court held:

“It will thus appear that just as “public order” in the rulings of this
Court (earlier cited) was said to comprehend disorders of less gravity than
those affecting “security of State”, “law and order” also comprehends
disorders of less gravity than those affecting “public order”. One has to
imagine three concentric circles. Law and order represents the largest
circle within which is the next circle representing public order and the
smallest circle represents security of State. It is then easy to see that
an act may affect law and order but not public order just as an act may
affect public order but not security of the State.” (at page 746)

34. In Arun Ghosh v. State of West Bengal, [1970] 3 S.C.R. 288, Ram
Manohar Lohia’s case was referred to with approval in the following terms:

“In Dr. Ram Manohar Lohia’s case this Court pointed out the difference
between maintenance of law and order and its disturbance and the
maintenance of public order and its disturbance. Public order was said to
embrace more of the community than law and order. Public order is the even
tempo of the life of the community taking the country as a whole or even a
specified locality. Disturbance of public order is to be distinguished,
from acts directed against individuals which do not disturb the society to
the extent of causing a general disturbance of public tranquility. It is
the degree of disturbance and its effect upon the life of the community in
a locality which determines whether the disturbance amounts only to a
breach of law and order. Take for instance, a man stabs another. People may
be shocked and even disturbed, but the life of the community keeps moving
at an even tempo, however much one may dislike the act. Take another case
of a town where there is communal tension. A man stabs a member of the
other community. This is an act of a very different sort. Its implications
are deeper and it affects the even tempo of life and public order is
jeopardized because the repercussions of the act embrace large Sections of
the community and incite them to make further breaches of the law and order
and to subvert the public order. An act by itself is not determinant of its
own gravity. In its quality it may not differ from another but in its
potentiality it may be very different. Take the case of assault on girls. A
guest at a hotel may kiss or make advances to half a dozen chamber maids.
He may annoy them and also the management but he does not cause disturbance
of public order. He may even have a fracas with the friends of one of the
girls but even then it would be a case of breach of law and order only.
Take another case of a man who molests women in lonely places. As a result
of his activities girls going to colleges and schools are in constant
danger and fear. Women going for their ordinary business are afraid of
being waylaid and assaulted. The activity of this man in its essential
quality is not different from the act of the other man but in its
potentiality and in its effect upon the public tranquility there is a vast
difference. The act of the man who molests the girls in lonely places
causes a disturbance in the even tempo of living which is the first
requirement of public order. He disturbs the society and the community. His
act makes all the women apprehensive of their honour and he can be said to
be causing disturbance of public order and not merely committing individual
actions which may be taken note of by the criminal prosecution agencies. It
means therefore that the question whether a man has only committed a breach
of law and order or has acted in a manner likely to cause a disturbance of
the public order is a question of degree and the extent of the reach of the
act upon the society. The French distinguish law and order and public order
by designating the latter as order publique. The latter expression has been
recognised as meaning something more than ordinary maintenance of law and
order. Justice Ramaswami in Writ Petition No. 179 of 1968 drew a line of
demarcation between the serious and aggravated forms of breaches of public
order which affect the community or endanger the public interest at large
from minor breaches of peace which do not affect the public at large. He
drew an analogy between public and private crimes. The analogy is useful
but not to be pushed too far. A large number of acts directed against
persons or individuals may total up into a breach of public order. In Dr.
Ram Manohar Lohia’s case examples were given by Sarkar, and Hidayatullah,
JJ. They show how similar acts in different contexts affect differently law
and order on the one hand and public order on the other. It is always a
question of degree of the harm and its effect upon the community. The
question to ask is: Does it lead to disturbance of the current of life of
the community so as to amount to a disturbance of the public order or does
it affect merely an individual leaving the tranquility of the society
undisturbed? This question has to be faced in every case on facts. There is
no formula by which one case can be distinguished from another.” (at pages
290 and 291).

35. This decision lays down the test that has to be formulated in all
these cases. We have to ask ourselves the question: does a particular act
lead to disturbance of the current life of the community or does it merely
affect an individual leaving the tranquility of society undisturbed? Going
by this test, it is clear that Section 66A is intended to punish any person
who uses the internet to disseminate any information that falls within the
sub-clauses of Section 66A. It will be immediately noticed that the
recipient of the written word that is sent by the person who is accused of
the offence is not of any importance so far as this Section is concerned.
(Save and except where under sub-clause (c) the addressee or recipient is
deceived or misled about the origin of a particular message.) It is clear,
therefore, that the information that is disseminated may be to one
individual or several individuals. The Section makes no distinction
between mass dissemination and dissemination to one person. Further, the
Section does not require that such message should have a clear tendency to
disrupt public order. Such message need not have any potential which could
disturb the community at large. The nexus between the message and action
that may be taken based on the message is conspicuously absent – there is
no ingredient in this offence of inciting anybody to do anything which a
reasonable man would then say would have the tendency of being an immediate
threat to public safety or tranquility. On all these counts, it is clear
that the Section has no proximate relationship to public order whatsoever.
The example of a guest at a hotel `annoying’ girls is telling – this Court
has held that mere `annoyance’ need not cause disturbance of public order.
Under Section 66A, the offence is complete by sending a message for the
purpose of causing annoyance, either `persistently’ or otherwise without in
any manner impacting public order.

Clear and present danger – tendency to affect.

36. It will be remembered that Justice Holmes in Schenck v. United
States, 63 L. Ed. 470 enunciated the clear and present danger test as
follows:

“…The most stringent protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic. It does not even
protect a man from an injunction against uttering words that may have all
the effect of force. Gompers v. Buck’s Stove & Range Co., 221 U. S. 418,
439, 31 Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874. The question
in every case is whether the words used are used in such circumstances and
are of such a nature as to create a clear and present danger that they will
bring about the substantive evils that Congress has a right to prevent. It
is a question of proximity and degree.” (At page 473, 474)

37. This was further refined in Abrams v. Unites States 250 U.S. 616
(1919), this time in a Holmesian dissent, to be clear and imminent danger.
However, in most of the subsequent judgments of the U.S. Supreme Court, the
test has been understood to mean to be “clear and present danger”. The test
of “clear and present danger” has been used by the U.S. Supreme Court in
many varying situations and has been adjusted according to varying fact
situations. It appears to have been repeatedly applied, see- Terminiello
v. City of Chicago 93 L. Ed. 1131 (1949) at page 1134-1135, Brandenburg v.
Ohio 23 L. Ed. 2d 430 (1969) at 434-435 & 436, Virginia v. Black 155 L. Ed.
2d 535 (2003) at page 551, 552 and 553[4].

38. We have echoes of it in our law as well S. Rangarajan v. P. Jagjivan
& Ors., (1989) 2 SCC 574 at paragraph 45:

“45. The problem of defining the area of freedom of expression when it
appears to conflict with the various social interests enumerated under
Article 19(2) may briefly be touched upon here. There does indeed have to
be a compromise between the interest of freedom of expression and special
interests. But we cannot simply balance the two interests as if they are of
equal weight. Our commitment of freedom of expression demands that it
cannot be suppressed unless the situations created by allowing the freedom
are pressing and the community interest is endangered. The anticipated
danger should not be remote, conjectural or far-fetched. It should have
proximate and direct nexus with the expression. The expression of thought
should be intrinsically dangerous to the public interest. In other words,
the expression should be inseparably locked up with the action contemplated
like the equivalent of a “spark in a powder keg”.

39. This Court has used the expression “tendency” to a particular act.
Thus, in State of Bihar v. Shailabala Devi, [1952] S.C.R. 654, an early
decision of this Court said that an article, in order to be banned must
have a tendency to excite persons to acts of violence (at page 662-663).
The test laid down in the said decision was that the article should be
considered as a whole in a fair free liberal spirit and then it must be
decided what effect it would have on the mind of a reasonable reader. (at
pages 664-665)

40. In Ramji Lal Modi v. The State of U.P., [1957] S.C.R. 860 at page
867, this court upheld Section 295A of the Indian Penal Code only because
it was read down to mean that aggravated forms of insults to religion must
have a tendency to disrupt public order. Similarly, in Kedar Nath Singh v.
State of Bihar, 1962 Supp. (2) S.C.R. 769, Section 124A of the Indian Penal
Code was upheld by construing it narrowly and stating that the offence
would only be complete if the words complained of have a tendency of
creating public disorder by violence. It was added that merely creating
disaffection or creating feelings of enmity in certain people was not good
enough or else it would violate the fundamental right of free speech under
Article 19(1)(a). Again, in Dr. Ramesh Yeshwant Prabhoo v. Prabhakar
Kashinath Kunte & Ors., 1996 (1) SCC 130, Section 123 (3A) of the
Representation of People Act was upheld only if the enmity or hatred that
was spoken about in the Section would tend to create immediate public
disorder and not otherwise.

41. Viewed at either by the standpoint of the clear and present danger
test or the tendency to create public disorder, Section 66A would not pass
muster as it has no element of any tendency to create public disorder which
ought to be an essential ingredient of the offence which it creates.

Defamation

42. Defamation is defined in Section 499 of the Penal Code as follows:
“499. Defamation.-Whoever, by words either spoken or intended to be read,
or by signs or by visible representations, makes or publishes any
imputation concerning any person intending to harm, or knowing or having
reason to believe that such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter excepted, to defame that
person.
Explanation 1.-It may amount to defamation to impute anything to a deceased
person, if the imputation would harm the reputation of that person if
living, and is intended to be hurtful to the feelings of his family or
other near relatives.
Explanation 2.-It may amount to defamation to make an imputation concerning
a company or an association or collection of persons as such.
Explanation 3.-An imputation in the form of an alternative or expressed
ironically, may amount to defamation.
Explanation 4.-No imputation is said to harm a person’s reputation, unless
that imputation directly or indirectly, in the estimation of others, lowers
the moral or intellectual character of that person, or lowers the character
of that person in respect of his caste or of his calling, or lowers the
credit of that person, or causes it to be believed that the body of that
person is in a loathsome state, or in a state generally considered as
disgraceful.”

43. It will be noticed that for something to be defamatory, injury to
reputation is a basic ingredient. Section 66A does not concern itself with
injury to reputation. Something may be grossly offensive and may annoy or
be inconvenient to somebody without at all affecting his reputation. It is
clear therefore that the Section is not aimed at defamatory statements at
all.

Incitement to an offence:

44. Equally, Section 66A has no proximate connection with incitement to
commit an offence. Firstly, the information disseminated over the
internet need not be information which “incites” anybody at all. Written
words may be sent that may be purely in the realm of “discussion” or
“advocacy” of a “particular point of view”. Further, the mere causing of
annoyance, inconvenience, danger etc., or being grossly offensive or having
a menacing character are not offences under the Penal Code at all. They
may be ingredients of certain offences under the Penal Code but are not
offences in themselves. For these reasons, Section 66A has nothing to do
with “incitement to an offence”. As Section 66A severely curtails
information that may be sent on the internet based on whether it is grossly
offensive, annoying, inconvenient, etc. and being unrelated to any of the
eight subject matters under Article 19(2) must, therefore, fall foul of
Article 19(1)(a), and not being saved under Article 19(2), is declared as
unconstitutional.

Decency or Morality

45. This Court in Ranjit Udeshi v. State of Maharashtra [1965] 1 S.C.R.
65 took a rather restrictive view of what would pass muster as not being
obscene. The Court followed the test laid down in the old English judgment
in Hicklin’s case which was whether the tendency of the matter charged as
obscene is to deprave and corrupt those whose minds are open to such
immoral influences and into whose hands a publication of this sort may
fall. Great strides have been made since this decision in the UK, United
States as well as in our country. Thus, in Director General, Directorate
General of Doordarshan v. Anand Patwardhan, 2006 (8) SCC 433, this Court
noticed the law in the United States and said that a material may be
regarded as obscene if the average person applying contemporary community
standards would find that the subject matter taken as a whole appeals to
the prurient interest and that taken as a whole it otherwise lacks serious
literary artistic, political, educational or scientific value (see Para
31).

46. In a recent judgment of this Court, Aveek Sarkar v. State of West
Bengal, 2014 (4) SCC 257, this Court referred to English, U.S. and Canadian
judgments and moved away from the Hicklin test and applied the contemporary
community standards test.

47. What has been said with regard to public order and incitement to an
offence equally applies here. Section 66A cannot possibly be said to
create an offence which falls within the expression ‘decency’ or ‘morality’
in that what may be grossly offensive or annoying under the Section need
not be obscene at all – in fact the word ‘obscene’ is conspicuous by its
absence in Section 66A.

48. However, the learned Additional Solicitor General asked us to read
into Section 66A each of the subject matters contained in Article 19(2) in
order to save the constitutionality of the provision. We are afraid that
such an exercise is not possible for the simple reason that when the
legislature intended to do so, it provided for some of the subject matters
contained in Article 19(2) in Section 69A. We would be doing complete
violence to the language of Section 66A if we were to read into it
something that was never intended to be read into it. Further, he argued
that the statute should be made workable, and the following should be read
into Section 66A:

“(i) Information which would appear highly abusive, insulting, pejorative,
offensive by reasonable person in general, judged by the standards of an
open and just multi-caste, multi-religious, multi racial society;

Director of Public Prosecutions v. Collins – (2006) 1 WLR 2223 @ para 9 and
21

Connolly v. Director of Public Prosecutions reported in [2008] 1 W.L.R.
276/2007 [1] All ER 1012

House of Lords Select Committee 1st Report of Session 2014-2015 on
Communications titled as “Social Media And Criminal Offences” @ pg 260 of
compilation of judgments Vol I Part B

(ii) Information which is directed to incite or can produce imminent
lawless action Brandenburg v. Ohio 395 U.S. 444 (1969);

(iii) Information which may constitute credible threats of violence to the
person or damage;

(iv) Information which stirs the public to anger, invites violent disputes
brings about condition of violent unrest and disturbances;

Terminiello v. Chicago 337 US 1 (1949)

(v) Information which advocates or teaches the duty, necessity or
proprietary of violence as a means of accomplishing political, social or
religious reform and/or justifies commissioning of violent acts with an
intent to exemplify glorify such violent means to accomplish political,
social, economical or religious reforms

[Whitney vs. California 274 US 357];

(vi) Information which contains fighting or abusive material;

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

(vii) Information which promotes hate speech i.e.

Information which propagates hatred towards individual or a groups, on the
basis of race, religion, religion, casteism, ethnicity,

Information which is intended to show the supremacy of one particular
religion/race/caste by making disparaging, abusive and/or highly
inflammatory remarks against religion/race/caste.

Information depicting religious deities, holy persons, holy symbols, holy
books which are created to insult or to show contempt or lack of reverence
for such religious deities, holy persons, holy symbols, holy books or
towards something which is considered sacred or inviolable.

(viii) Satirical or iconoclastic cartoon and caricature which fails the
test laid down in Hustler Magazine, Inc. v. Falwell 485 U.S. 46 (1988)

(ix) Information which glorifies terrorism and use of drugs;

(x) Information which infringes right of privacy of the others and includes
acts of cyber bullying, harassment or stalking.

(xi) Information which is obscene and has the tendency to arouse feeling or
revealing an overt sexual desire and should be suggestive of deprave mind
and designed to excite sexual passion in persons who are likely to see it.

Aveek Sarkar and Anr. vs. State of West Bengal and Ors. (2014) 4 SCC 257.

(xii) Context and background test of obscenity. Information which is
posted in such a context or background which has a consequential effect of
outraging the modesty of the pictured individual.

Aveek Sarkar and Anr. vs. State of West Bengal and Ors. (2014) 4 SCC 257.”

49. What the learned Additional Solicitor General is asking us to do is
not to read down Section 66A – he is asking for a wholesale substitution of
the provision which is obviously not possible.

Vagueness

50. Counsel for the petitioners argued that the language used in Section
66A is so vague that neither would an accused person be put on notice as to
what exactly is the offence which has been committed nor would the
authorities administering the Section be clear as to on which side of a
clearly drawn line a particular communication will fall.

51. We were given Collin’s dictionary, which defined most of the terms
used in Section 66A, as follows:

“Offensive:-

Unpleasant or disgusting, as to the senses

Causing anger or annoyance; insulting

For the purpose of attack rather than defence.

Menace:-

To threaten with violence, danger, etc.

A threat of the act of threatening

Something menacing; a source of danger

A nuisance

Annoy:-

To irritate or displease

To harass with repeated attacks

Annoyance

The feeling of being annoyed

The act of annoying.

Inconvenience

The state of quality of being inconvenient

Something inconvenient; a hindrance, trouble, or difficulty

Danger:-

The state of being vulnerable to injury, loss, or evil risk

A person or a thing that may cause injury pain etc.

Obstruct:-

To block (a road a passageway, etc.) with an obstacle

To make (progress or activity) difficult.

To impede or block a clear view of.

Obstruction:- a person or a thing that obstructs.

Insult:-

To treat, mention, or speak to rudely; offend; affront

To assault; attack

An offensive or contemptuous remark or action; affront; slight

A person or thing producing the effect of an affront = some television is
an insult to intelligence

An injury or trauma.”

52. The U.S. Supreme Court has repeatedly held in a series of judgments
that where no reasonable standards are laid down to define guilt in a
Section which creates an offence, and where no clear guidance is given to
either law abiding citizens or to authorities and courts, a Section which
creates an offence and which is vague must be struck down as being
arbitrary and unreasonable. Thus, in Musser v. Utah, 92 L. Ed. 562, a Utah
statute which outlawed conspiracy to commit acts injurious to public morals
was struck down.

53. In Winters v. People of State of New York, 92 L. Ed. 840, a New York
Penal Law read as follows:-
“1141. Obscene prints and articles
1. A person……who,
2. Prints, utters, publishes, sells, lends, gives away, distributes or
shows, or has in his possession with intent to sell, lend, give away,
distribute or show, or otherwise offers for sale, loan, gift or
distribution, any book, pamphlet, magazine, newspaper or other printed
paper devoted to the publication, and principally made up of criminal news,
police reports, or accounts of criminal deeds, or pictures, or stories of
deeds of bloodshed, lust or
crime;……………………………………………..
‘Is guilty of a misdemeanor, …..'” (at page 846)
The court in striking down the said statute held:
“The impossibility of defining the precise line between permissible
uncertainty in statutes caused by describing crimes by words well
understood through long use in the criminal law – obscene, lewd,
lascivious, filthy, indecent or disgusting-and the unconstitutional
vagueness that leaves a person uncertain as to the kind of prohibited
conduct-massing stories to incite crime-has resulted in three arguments of
this case in this Court. The legislative bodies in draftsmanship obviously
have the same difficulty as do the judicial in interpretation. Nevertheless
despite the difficulties, courts must do their best to determine whether or
not the vagueness is of such a character ‘that men of common intelligence
must necessarily guess at its meaning.’ Connally v. General Constr. Co.,
269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322. The entire text of the
statute or the subjects dealt with may furnish an adequate standard. The
present case as to a vague statute abridging free speech involves the
circulation of only vulgar magazines. The next may call for decision as to
free expression of political views in the light of a statute intended to
punish subversive activities.
The subsection of the New York Penal Law, as now interpreted by the Court
of Appeals prohibits distribution of a magazine principally made up of
criminal news or stories of deeds of bloodshed, or lust, so massed as to
become vehicles for inciting violent and depraved crimes against the
person. But even considering the gloss put upon the literal meaning by the
Court of Appeals’ restriction of the statute to collections of stories ‘so
massed as to become vehicles for inciting violent and depraved crimes
against the person * * * not necessarily * * * sexual passion,’ we find the
specification of publications, prohibited from distribution, too uncertain
and indefinite to justify the conviction of this petitioner. Even though
all detective tales and treatises on criminology are not forbidden, and
though publications made up of criminal deeds not characterized by
bloodshed or lust are omitted from the interpretation of the Court of
Appeals, we think fair use of collections of pictures and stories would be
interdicted because of the utter impossibility of the actor or the trier to
know where this new standard of guilt would draw the line between the
allowable and the forbidden publications. No intent or purpose is required-
no indecency or obscenity in any sense heretofore known to the law. ‘So
massed as to incite to crime’ can become meaningful only by concrete
instances. This one example is not enough. The clause proposes to punish
the printing and circulation of publications that courts or juries may
think influence generally persons to commit crime of violence against the
person. No conspiracy to commit a crime is required. See Musser v. State of
Utah, 68 S.Ct. 397, this Term. It is not an effective notice of new crime.
The clause has no technical or common law meaning. Nor can light as to the
meaning be gained from the section as a whole or the Article of the Penal
Law under which it appears. As said in the Cohen Grocery Co. case, supra,
255 U.S. at page 89, 41 S.Ct. at page 300, 65 L.Ed. 516, 14 A.L.R. 1045:
‘It leaves open, therefore, the widest conceivable inquiry, the scope of
which no one can foresee and the result of which no one can foreshadow or
adequately guard against.’
The statute as construed by the Court of Appeals does not limit punishment
to the indecent and obscene, as formerly understood. When stories of deeds
of bloodshed, such as many in the accused magazines, are massed so as to
incite to violent crimes, the statute is violated. it does not seem to us
that an honest distributor of publications could know when he might be held
to have ignored such a prohibition. Collections of tales of war horrors,
otherwise unexceptionable, might well be found to be ‘massed’ so as to
become ‘vehicles for inciting violent and depraved crimes.’ Where a statute
is so vague as to make criminal an innocent act, a conviction under it
cannot be sustained. Herndon v. Lowry, 301 U.S. 242, 259, 57 S.Ct. 732,
739, 81 L.Ed. 1066.” (at page 851-852)

54. In Burstyn v. Wilson, 96 L. Ed. 1098, sacrilegious writings and
utterances were outlawed. Here again, the U.S. Supreme Court stepped in to
strike down the offending Section stating:

“It is not a sufficient answer to say that ‘sacrilegious’ is definite,
because all subjects that in any way might be interpreted as offending the
religious beliefs of any one of the 300 sects of the United States are
banned in New York. To allow such vague, undefinable powers of censorship
to be exercised is bound to have stultifying consequences on the creative
process of literature and art-for the films are derived largely from
literature. History does not encourage reliance on the wisdom and
moderation of the censor as a safeguard in the exercise of such drastic
power over the minds of men. We not only do not know but cannot know what
is condemnable by ‘sacrilegious.’ And if we cannot tell, how are those to
be governed by the statute to tell? (at page 1121)

55. In City of Chicago v. Morales et al, 527 U.S. 41 (1999), a Chicago
Gang Congregation Ordinance prohibited criminal street gang members from
loitering with one another or with other persons in any public place for no
apparent purpose. The Court referred to an earlier judgment in United
States v. Reese 92 U.S. 214 (1875) at 221 in which it was stated that the
Constitution does not permit a legislature to set a net large enough to
catch all possible offenders and leave it to the Court to step in and say
who could be rightfully detained and who should be set at liberty. It was
held that the broad sweep of the Ordinance violated the requirement that a
legislature needs to meet: to establish minimum guidelines to govern law
enforcement. As the impugned Ordinance did not have any such guidelines, a
substantial amount of innocent conduct would also be brought within its
net, leading to its unconstitutionality.

56. It was further held that a penal law is void for vagueness if it
fails to define the criminal offence with sufficient definiteness. Ordinary
people should be able to understand what conduct is prohibited and what is
permitted. Also, those who administer the law must know what offence has
been committed so that arbitrary and discriminatory enforcement of the law
does not take place.

57. Similarly, in Grayned v. City of Rockford, 33 L.Ed. 2d. 222, the
State of Illinois provided in an anti noise ordinance as follows:

“‘(N)o person, while on public or private grounds adjacent to any building
in which a school or any class thereof is in session, shall willfully make
or assist in the making of any noise or diversion which disturbs or tends
to disturb the peace or good order of such school session or class thereof.
. . .’ Code of Ordinances, c. 28, 19.2(a).”

The law on the subject of vagueness was clearly stated thus:

“It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined. Vague laws offend
several important values. First, because we assume that man is free to
steer between lawful and unlawful conduct, we insist that laws give the
person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws may trap the
innocent by not providing fair warning. Second, if arbitrary and
discriminatory enforcement is to be prevented, laws must provide explicit
standards for those who apply them. A vague law impermissibly delegates
basic policy matters to policemen, judges, and juries for resolution on an
ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory application. Third, but related, where a vague statute
‘abut(s) upon sensitive areas of basic First Amendment freedoms, it
‘operates to inhibit the exercise of (those) freedoms.’ Uncertain meanings
inevitably lead citizens to “steer far wider of the unlawful zone’ . . .
than if the boundaries of the forbidden areas were clearly marked.'”(at
page 227-228)

58. The anti noise ordinance was upheld on facts in that case because it
fixed the time at which noise disrupts school activity – while the school
is in session – and at a fixed place – ‘adjacent’ to the school.

59. Secondly, there had to be demonstrated a causality between
disturbance that occurs and the noise or diversion. Thirdly, acts have to
be willfully done. It is important to notice that the Supreme Court
specifically held that “undesirables” or their “annoying conduct” may not
be punished. It is only on these limited grounds that the said Ordinance
was considered not to be impermissibly vague.
60. In Reno, Attorney General of the United States, et al. v. American
Civil Liberties Union et al., 521 U.S. 844 (1997), two provisions of the
Communications Decency Act of 1996 which sought to protect minors from
harmful material on the internet were adjudged unconstitutional. This
judgment is a little important for two basic reasons – that it deals with a
penal offence created for persons who use the internet as also for the
reason that the statute which was adjudged unconstitutional uses the
expression “patently offensive” which comes extremely close to the
expression “grossly offensive” used by the impugned Section 66A. Section
223(d), which was adjudged unconstitutional, is set out hereinbelow:-
“223 (d) Whoever-
“(1) in interstate or foreign communications knowingly-
(A) uses an interactive computer service to send to a specific person or
persons under 18 years of age, or
(B) uses any interactive computer service to display in a manner available
to a person under 18 years of age, “any comment, request, suggestion,
proposal, image, or other communication that, in context, depicts or
describes, in terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or organs, regardless
of whether the user of such service placed the call or initiated the
communication; or
(2) knowingly permits any telecommunications facility under such person’s
control to be used for an activity prohibited by paragraph (1) with the
intent that it be used for such activity,
shall be fined under Title 18, or imprisoned not more than two years, or
both.” (at page 860)

Interestingly, the District Court Judge writing of the internet said:

“[i]t is no exaggeration to conclude that the Internet has achieved, and
continues to achieve, the most participatory marketplace of mass speech
that this country – and indeed the world – as yet seen. The plaintiffs in
these actions correctly describe the ‘democratizing’ effects of Internet
communication: individual citizens of limited means can speak to a
worldwide audience on issues of concern to them. Federalists and Anti-
federalists may debate the structure of their government nightly, but these
debates occur in newsgroups or chat rooms rather than in pamphlets. Modern-
day Luthers still post their theses, but to electronic bulletins boards
rather than the door of the Wittenberg Schlosskirche. More mundane (but
from a constitutional perspective, equally important) dialogue occurs
between aspiring artists, or French cooks, or dog lovers, or fly
fishermen.” 929 F. Supp. At 881. (at page 425)

61. The Supreme Court held that the impugned statute lacked the precision
that the first amendment required when a statute regulates the content of
speech. In order to deny minors access to potentially harmful speech, the
impugned Act effectively suppresses a large amount of speech that adults
have a constitutional right to receive and to address to one another.

62. Such a burden on adult speech is unacceptable if less restrictive
alternatives would be as effective in achieving the legitimate purpose that
the statute was enacted to serve. It was held that the general undefined
term “patently offensive” covers large amounts of non-pornographic
material with serious educational or other value and was both vague and
over broad.

It was, thus, held that the impugned statute was not narrowly
tailored and would fall foul of the first amendment.

63. In Federal Communications Commission v. Fox Television Stations, 132
S.Ct. 2307, it was held:
“A fundamental principle in our legal system is that laws which regulate
persons or entities must give fair notice of conduct that is forbidden or
required. See Connally v. General Constr. Co., 269 U. S. 385, 391
(1926) (“[A] statute which either forbids or requires the doing of an act
in terms so vague that men of common intelligence must necessarily guess at
its meaning and differ as to its application, violates the first essential
of due process of law”); Papachristou v. Jacksonville, 405 U. S. 156, 162
(1972) (“Living under a rule of law entails various suppositions, one of
which is that ‘[all persons] are entitled to be informed as to what the
State commands or forbids'” (quoting Lanzetta v. New Jersey, 306 U. S. 451,
453 (1939) (alteration in original))). This requirement of clarity in
regulation is essential to the protections provided by the Due Process
Clause of the Fifth Amendment. See United States v. Williams, 553 U. S.
285, 304 (2008). It requires the invalidation of laws that are
impermissibly vague. A conviction or punishment fails to comply with due
process if the statute or regulation under which it is obtained “fails to
provide a person of ordinary intelligence fair notice of what is
prohibited, or is so standardless that it authorizes or encourages
seriously discriminatory enforcement.” Ibid. As this Court has explained, a
regulation is not vague because it may at times be difficult to prove an
incriminating fact but rather because it is unclear as to what fact must be
proved. See id., at 306.
Even when speech is not at issue, the void for vagueness doctrine addresses
at least two connected but discrete due process concerns: first, that
regulated parties should know what is required of them so they may act
accordingly; second, precision and guidance are necessary so that those
enforcing the law do not act in an arbitrary or discriminatory way.
See Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972). When speech
is involved, rigorous adherence to those requirements is necessary to
ensure that ambiguity does not chill protected speech.”(at page 2317)

64. Coming to this Court’s judgments, in State of Madhya Pradesh v.
Baldeo Prasad, [1961] 1 S.C.R. 970 an inclusive definition of the word
“goonda” was held to be vague and the offence created by Section 4A of the
Goondas Act was, therefore, violative of Article 19(1)(d) and (e) of the
Constitution. It was stated:

“Incidentally it would also be relevant to point out that the definition of
the word “goonda” affords no assistance in deciding which citizen can be
put under that category. It is an inclusive definition and it does not
indicate which tests have to be applied in deciding whether a person falls
in the first part of the definition. Recourse to the dictionary meaning of
the word would hardly be of any assistance in this matter. After all it
must be borne in mind that the Act authorises the District Magistrate to
deprive a citizen of his fundamental right under Art. 19(1)(d) and (e), and
though the object of the Act and its purpose would undoubtedly attract the
provisions of Art. 19(5) care must always be taken in passing such acts
that they provide sufficient safeguards against casual, capricious or even
malicious exercise of the powers conferred by them. It is well known that
the relevant provisions of the Act are initially put in motion against a
person at a lower level than the District magistrate, and so it is always
necessary that sufficient safeguards should be provided by the Act to
protect the fundamental rights of innocent citizens and to save them from
unnecessary harassment. That is why we think the definition of the word
“goonda” should have given necessary assistance to the District Magistrate
in deciding whether a particular citizen falls under the category of goonda
or not; that is another infirmity in the Act. As we have already pointed
out s. 4-A suffers from the same infirmities as s. 4.

Having regard to the two infirmities in Sections 4, 4-A respectively we
do not think it would be possible to accede to the argument of the Learned
Advocate-General that the operative portion of the Act can fall under Art.
19(5) of the Constitution. The person against whom action can be taken
under the Act is not entitled to know the source of the information
received by the District Magistrate; he is only told about his prejudicial
activities on which the satisfaction of the District Magistrate is based
that action should be taken against him under s.4 or s. 4-A. In such a
case it is absolutely essential that the Act must clearly indicate by a
proper definition or otherwise when and under what circumstances a person
can be called a goonda, and it must impose an obligation on the District
Magistrate to apply his mind to the question as to whether the person
against whom complaints are received is such a goonda or not. It has been
urged before us that such an obligation is implicit in Sections 4 and 4-A.
We are, however, not impressed by this argument. Where a statute empowers
the specified authorities to take preventive action against the citizens it
is essential that it should expressly make it a part of the duty of the
said authorities to satisfy themselves about the existence of what the
statute regards as conditions precedent to the exercise of the said
authority. If the statute is silent in respect of one of such conditions
precedent it undoubtedly constitutes a serious infirmity which would
inevitably take it out of the provisions of Art. 19(5). The result of this
infirmity is that it has left to the unguided and unfettered discretion of
the authority concerned to treat any citizen as a goonda. In other words,
the restrictions which it allows to be imposed on the exercise of the
fundamental right of a citizen guaranteed by Art. 19(1)(d) and (e) must in
the circumstances be held to be unreasonable. That is the view taken by the
High court and we see no reason to differ from it.” (at pages 979, 980)

65. At one time this Court seemed to suggest that the doctrine of
vagueness was no part of the Constitutional Law of India. That was
dispelled in no uncertain terms in K.A. Abbas v. The Union of India &
Another, [1971] 2 S.C.R. 446:

“This brings us to the manner of the exercise of control and restriction by
the directions. Here the argument is that most of the regulations are vague
and further that they leave no scope for the exercise of creative genius in
the field of art. This poses the first question before us whether the ‘void
for vagueness’ doctrine is applicable. Reliance in this connection is
placed on Municipal Committee Amritsar and Anr. v. The State of Rajasthan .
In that case a Division Bench of this Court lays down that an Indian Act
cannot be declared invalid on the ground that it violates the due process
clause or that it is vague……” (at page 469)

“These observations which are clearly obiter are apt to be too generally
applied and need to be explained. While it is true that the principles
evolved by the Supreme Court of the United States of America in the
application of the Fourteenth Amendment were eschewed in our Constitution
and instead the limits of restrictions on each fundamental right were
indicated in the clauses that follow the first clause of the nineteenth
article, it cannot be said as an absolute principle that no law will be
considered bad for sheer vagueness. There is ample authority for the
proposition that a law affecting fundamental rights may be so considered. A
very pertinent example is to be found in State of Madhya Pradesh and Anr.
v. Baldeo Prasad, 1961 (1) SCR 970 where the Central Provinces and Berar
Goondas Act 1946 was declared void for uncertainty. The condition for the
application of Sections 4 and 4A was that the person sought to be proceeded
against must be a goonda but the definition of goonda in the Act indicated
no tests for deciding which person fell within the definition. The
provisions were therefore held to be uncertain and vague.

The real rule is that if a law is vague or appears to be so, the court
must try to construe it, as far as may be, and language permitting, the
construction sought to be placed on it, must be in accordance with the
intention of the legislature. Thus if the law is open to diverse
construction, that construction which accords best with the intention of
the legislature and advances the purpose of legislation, is to be
preferred. Where however the law admits of no such construction and the
persons applying it are in a boundless sea of uncertainty and the law prima
facie takes away a guaranteed freedom, the law must be held to offend the
Constitution as was done in the case of the Goonda Act. This is not
application of the doctrine of due process. The invalidity arises from the
probability of the misuse of the law to the detriment of the individual. If
possible, the Court instead of striking down the law may itself draw the
line of demarcation where possible but this effort should be sparingly made
and only in the clearest of cases.” (at pages 470, 471)

66. Similarly, in Harakchand Ratanchand Banthia & Ors. v. Union of India
& Ors., 1969 (2) SCC 166, Section 27 of the Gold Control Act was struck
down on the ground that the conditions imposed by it for the grant of
renewal of licences are uncertain, vague and unintelligible. The Court
held:

“21. We now come to Section 27 of the Act which relates to licensing of
dealers. It was stated on behalf of the petitioners that the conditions
imposed by sub-section (6) of Section 27 for the grant or renewal of
licences are uncertain, vague and unintelligible and consequently wide and
unfettered power was conferred upon the statutory authorities in the matter
of grant or renewal of licence. In our opinion this contention is well
founded and must be accepted as correct. Section 27(6)(a) states that in
the matter of issue or renewal of licences the Administrator shall have
regard to “the number of dealers existing in the region in which the
applicant intends to carry on business as a dealer”. But the word “region”
is nowhere defined in the Act. Similarly Section 27(6)(b) requires the
Administrator to have regard to “the anticipated demand, as estimated by
him, for ornaments in that region.” The expression “anticipated demand” is
a vague expression which is not capable of objective assessment and is
bound to lead to a great deal of uncertainty. Similarly the expression
“suitability of the applicant” in Section 27(6)(e) and “public interest” in
Section 27(6)(g) do not provide any objective standard or norm or guidance.
For these reasons it must be held that clauses (a),(d),(e) and (g) of
Section 27(6) impose unreasonable restrictions on the fundamental right of
the petitioner to carry on business and are constitutionally invalid. It
was also contended that there was no reason why the conditions for renewal
of licence should be as rigorous as the conditions for initial grant of
licence. The requirement of strict conditions for the renewal of licence
renders the entire future of the business of the dealer uncertain and
subjects it to the caprice and arbitrary will of the administrative
authorities. There is justification for this argument and the requirement
of Section 26 of the Act imposing the same conditions for the renewal of
the licence as for the initial grant appears to be unreasonable. In our
opinion clauses (a), (b), (e) and (g) are inextricably bound up with the
other clauses of Section 27(6) and form part of a single scheme. The result
is that clauses (a), (b), (c), (e) and (g) are not severable and the entire
Section 27(6) of the Act must be held invalid. Section 27(2)(d) of the Act
states that a valid licence issued by the Administrator “may contain such
conditions, limitations and restrictions as the Administrator may think fit
to impose and different conditions, limitations and restrictions may be
imposed for different classes of dealers”. On the face of it, this sub-
section confers such wide and vague power upon the Administrator that it is
difficult to limit its scope. In our opinion Section 27(2)(d) of the Act
must be struck down as an unreasonable restriction on the fundamental right
of the petitioners to carry on business. It appears, however, to us that if
Section 27(2)(d) and Section 27(6) of the Act are invalid the licensing
scheme contemplated by the rest of Section 27 of the Act cannot be worked
in practice. It is, therefore, necessary for Parliament to enact fresh
legislation imposing appropriate conditions and restrictions for the grant
and renewal of licences to dealers. In the alternative the Central
Government may make appropriate rules for the same purpose in exercise of
its rule-making power under Section 114 of the Act.”

67. In A.K. Roy & Ors. v. Union of India & Ors., [1982] 2 S.C.R. 272, a
part of Section 3 of the National Security Ordinance was read down on the
ground that “acting in any manner prejudicial to the maintenance of
supplies and services essential to the community” is an expression so vague
that it is capable of wanton abuse. The Court held:

“What we have said above in regard to the expressions ‘defence of India’,
‘security of India’, ‘security of the State’ and ‘relations of India with
foreign powers’ cannot apply to the expression “acting in any manner
prejudicial to the maintenance of supplies and services essential to the
community” which occurs in Section 3(2) of the Act. Which supplies and
services are essential to the community can easily be defined by the
legislature and indeed, legislations which regulate the prices and
possession of essential commodities either enumerate those commodities or
confer upon the appropriate Government the power to do so. In the absence
of a definition of ‘supplies and services essential to the community’, the
detaining authority will be free to extend the application of this clause
of sub-section (2) to any commodities or services the maintenance of supply
of which, according to him, is essential to the community.

But that is not all. The Explanation to sub-section (2) gives to the
particular phrase in that sub-section a meaning which is not only uncertain
but which, at any given point of time, will be difficult to ascertain or
fasten upon. According to the Explanation, no order of detention can be
made under the National Security Act on any ground on which an order of
detention may be made under the Prevention of Blackmarketing and
Maintenance of Supplies of Essential Commodities Act, 1980. The reason for
this, which is stated in the Explanation itself, is that for the purposes
of sub-section (2), “acting in any manner prejudicial to the maintenance of
supplies essential to the community” does not include “acting in any manner
prejudicial to the maintenance of supplies of commodities essential to the
community” as defined in the Explanation to sub-section (1) of Section 3 of
the Act of 1980. Clauses (a) and (b) of the Explanation to Section 3(1) of
the Act of 1980 exhaust almost the entire range of essential commodities.
Clause (a) relates to committing or instigating any person to commit any
offence punishable under the Essential Commodities Act, 10 of 1955, or
under any other law for the time being in force relating to the control of
the production, supply or distribution of, or trade and commerce in, any
commodity essential to the community. Clause (b) of the Explanation to
Section 3(1) of the Act of 1980 relates to dealing in any commodity which
is an essential commodity as defined in the Essential Commodities Act,
1955, or with respect to which provisions have been made in any such other
law as is referred to in clause (a). We find it quite difficult to
understand as to which are the remaining commodities outside the scope of
the Act of 1980, in respect of which it can be said that the maintenance of
their supplies is essential to the community. The particular clause in sub-
section (2) of Section 3 of the National Security Act is, therefore,
capable of wanton abuse in that, the detaining authority can place under
detention any person for possession of any commodity on the basis that the
authority is of the opinion that the maintenance of supply of that
commodity is essential to the community. We consider the particular clause
not only vague and uncertain but, in the context of the Explanation,
capable of being extended cavalierly to supplies, the maintenance of which
is not essential to the community. To allow the personal liberty of the
people to be taken away by the application of that clause would be a
flagrant violation of the fairness and justness of procedure which is
implicit in the provisions of Article 21.” (at page 325-326)

68. Similarly, in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at
para 130-131, it was held:

“130. It is the basic principle of legal jurisprudence that an enactment is
void for vagueness if its prohibitions are not clearly defined. Vague laws
offend several important values. It is insisted or emphasized that laws
should give the person of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act accordingly. Vague laws may
trap the innocent by not providing fair warning. Such a law impermissibly
delegates basic policy matters to policemen and also judges for resolution
on an ad hoc and subjective basis, with the attendant dangers of arbitrary
and discriminatory application. More so uncertain and undefined words
deployed inevitably lead citizens to “steer far wider of the unlawful zone
… than if the boundaries of the forbidden areas were clearly marked.

131. Let us examine clause (i) of Section 2(1)(a). This section is shown to
be blissfully and impermissibly vague and imprecise. As rightly pointed out
by the learned counsel, even an innocent person who ingenuously and
undefiledly communicates or associates without any knowledge or having no
reason to believe or suspect that the person or class of persons with whom
he has communicated or associated is engaged in assisting in any manner
terrorists or disruptionists, can be arrested and prosecuted by abusing or
misusing or misapplying this definition. In ultimate consummation of the
proceedings, perhaps that guiltless and innoxious innocent person may also
be convicted.”

69. Judged by the standards laid down in the aforesaid judgments, it is
quite clear that the expressions used in 66A are completely open-ended and
undefined. Section 66 in stark contrast to Section 66A states:
“66. Computer related offences.-If any person, dishonestly or fraudulently,
does any act referred to in Section 43, he shall be punishable with
imprisonment for a term which may extend to three years or with fine which
may extend to five lakh rupees or with both.
Explanation.-For the purposes of this section,-
(a) the word “dishonestly” shall have the meaning assigned to it in Section
24 of the Indian Penal Code (45 of 1860);
(b) the word “fraudulently” shall have the meaning assigned to it in
Section 25 of the Indian Penal Code (45 of 1860).”

70. It will be clear that in all computer related offences that are
spoken of by Section 66, mens rea is an ingredient and the expression
“dishonestly” and “fraudulently” are defined with some degree of
specificity, unlike the expressions used in Section 66A.

71. The provisions contained in Sections 66B up to Section 67B also
provide for various punishments for offences that are clearly made out.
For example, under Section 66B, whoever dishonestly receives or retains any
stolen computer resource or communication device is punished with
imprisonment. Under Section 66C, whoever fraudulently or dishonestly makes
use of any identification feature of another person is liable to punishment
with imprisonment. Under Section 66D, whoever cheats by personating
becomes liable to punishment with imprisonment. Section 66F again is a
narrowly drawn section which inflicts punishment which may extend to
imprisonment for life for persons who threaten the unity, integrity,
security or sovereignty of India. Sections 67 to 67B deal with punishment
for offences for publishing or transmitting obscene material including
depicting children in sexually explicit acts in electronic form.

72. In the Indian Penal Code, a number of the expressions that occur in
Section 66A occur in Section 268.

“268. Public nuisance.-A person is guilty of a public nuisance who does any
act or is guilty of an illegal omission, which causes any common injury,
danger or annoyance to the public or to the people in general who dwell or
occupy property in the vicinity, or which must necessarily cause injury,
obstruction, danger or annoyance to persons who may have occasion to use
any public right.
A common nuisance is not excused on the ground that it causes some
convenience or advantage.”

73. It is important to notice the distinction between the Sections 268
and 66A. Whereas, in Section 268 the various expressions used are
ingredients for the offence of a public nuisance, these ingredients now
become offences in themselves when it comes to Section 66A. Further, under
Section 268, the person should be guilty of an act or omission which is
illegal in nature – legal acts are not within its net. A further
ingredient is that injury, danger or annoyance must be to the public in
general. Injury, danger or annoyance are not offences by themselves
howsoever made and to whomsoever made. The expression “annoyance” appears
also in Sections 294 and 510 of the IPC:
“294. Obscene acts and songs.-Whoever, to the annoyance of others,
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene songs, ballad or words, in or near
any public place,
shall be punished with imprisonment of either description for a term which
may extend to three months, or with fine, or with both.

510. Misconduct in public by a drunken person.-Whoever, in a state of
intoxication, appears in any public place, or in any place which it is a
trespass in him to enter, and there conducts himself in such a manner as to
cause annoyance to any person, shall be punished with simple imprisonment
for a term which may extend to twenty-four hours, or with fine which may
extend to ten rupees, or with both.”

74. If one looks at Section 294, the annoyance that is spoken of is
clearly defined – that is, it has to be caused by obscene utterances or
acts. Equally, under Section 510, the annoyance that is caused to a person
must only be by another person who is in a state of intoxication and who
annoys such person only in a public place or in a place for which it is a
trespass for him to enter. Such narrowly and closely defined contours of
offences made out under the Penal Code are conspicuous by their absence in
Section 66A which in stark contrast uses completely open ended, undefined
and vague language.

75. Incidentally, none of the expressions used in Section 66A are
defined. Even “criminal intimidation” is not defined – and the definition
clause of the Information Technology Act, Section 2 does not say that words
and expressions that are defined in the Penal Code will apply to this Act.
76. Quite apart from this, as has been pointed out above, every
expression used is nebulous in meaning. What may be offensive to one may
not be offensive to another. What may cause annoyance or inconvenience to
one may not cause annoyance or inconvenience to another. Even the
expression “persistently” is completely imprecise – suppose a message is
sent thrice, can it be said that it was sent “persistently”? Does a
message have to be sent (say) at least eight times, before it can be said
that such message is “persistently” sent? There is no demarcating line
conveyed by any of these expressions – and that is what renders the Section
unconstitutionally vague.

77. However, the learned Additional Solicitor General argued before us
that expressions that are used in Section 66A may be incapable of any
precise definition but for that reason they are not constitutionally
vulnerable. He cited a large number of judgments in support of this
submission. None of the cited judgments dealt with a Section creating an
offence which is saved despite its being vague and in capable of any
precise definition. In fact, most of the judgments cited before us did not
deal with criminal law at all. The few that did are dealt with
hereinbelow. For instance, Madan Singh v. State of Bihar, (2004) 4 SCC 622
was cited before us. The passage cited from the aforesaid judgment is
contained in para 19 of the judgment. The cited passage is not in the
context of an argument that the word “terrorism” not being separately
defined would, therefore, be struck down on the ground of vagueness. The
cited passage was only in the context of upholding the conviction of the
accused in that case. Similarly, in Zameer Ahmed Latifur Rehman Sheikh v.
State of Maharashtra & Ors., (2010) 5 SCC 246, the expression “insurgency”
was said to be undefined and would defy a precise definition, yet it could
be understood to mean break down of peace and tranquility as also a grave
disturbance of public order so as to endanger the security of the State and
its sovereignty. This again was said in the context of a challenge on the
ground of legislative competence. The provisions of the Maharashtra
Control of Organised Crime Act were challenged on the ground that they were
outside the expression “public order” contained in Entry 1 of List I of the
7th Schedule of the Constitution of India. This contention was repelled by
saying that the expression “public order” was wide enough to encompass
cases of “insurgency”. This case again had nothing to do with a challenge
raised on the ground of vagueness.

78. Similarly, in State of M.P. v. Kedia Leather & Liquor Limited, (2003)
7 SCC 389, paragraph 8 was cited to show that the expression “nuisance”
appearing in Section 133 of the Code of Criminal Procedure was also not
capable of precise definition. This again was said in the context of an
argument that Section 133 of the Code of Criminal Procedure was impliedly
repealed by the Water (Prevention and Control of Pollution) Act, 1974.
This contention was repelled by saying that the areas of operation of the
two provisions were completely different and they existed side by side
being mutually exclusive. This case again did not contain any argument
that the provision contained in Section 133 was vague and, therefore,
unconstitutional. Similarly, in State of Karnataka v. Appa Balu Ingale,
1995 Supp. (4) SCC 469, the word “untouchability” was said not to be
capable of precise definition. Here again, there was no constitutional
challenge on the ground of vagueness.

79. In fact, two English judgments cited by the learned Additional
Solicitor General would demonstrate how vague the words used in Section 66A
are. In Director of Public Prosecutions v. Collins, (2006) 1 WLR 2223, the
very expression “grossly offensive” is contained in Section 127(1)(1) of
the U.K. Communications Act, 2003. A 61 year old man made a number of
telephone calls over two years to the office of a Member of Parliament. In
these telephone calls and recorded messages Mr. Collins who held strong
views on immigration made a reference to “Wogs”, “Pakis”, “Black bastards”
and “Niggers”. Mr. Collins was charged with sending messages which were
grossly offensive. The Leicestershire Justices dismissed the case against
Mr. Collins on the ground that the telephone calls were offensive but not
grossly offensive. A reasonable person would not so find the calls to be
grossly offensive. The Queen’s Bench agreed and dismissed the appeal filed
by the Director of Public Prosecutions. The House of Lords reversed the
Queen’s Bench stating:

“9. The parties agreed with the rulings of the Divisional Court that it is
for the Justices to determine as a question of fact whether a message is
grossly offensive, that in making this determination the Justices must
apply the standards of an open and just multi-racial society, and that the
words must be judged taking account of their context and all relevant
circumstances. I would agree also. Usages and sensitivities may change over
time. Language otherwise insulting may be used in an unpejorative, even
affectionate, way, or may be adopted as a badge of honour (“Old
Contemptibles”). There can be no yardstick of gross offensiveness otherwise
than by the application of reasonably enlightened, but not perfectionist,
contemporary standards to the particular message sent in its particular
context. The test is whether a message is couched in terms liable to cause
gross offence to those to whom it relates.

10. In contrast with section 127(2)(a) and its predecessor subsections,
which require proof of an unlawful purpose and a degree of knowledge,
section 127(1)(a) provides no explicit guidance on the state of mind which
must be proved against a defendant to establish an offence against the
subsection.”

80. Similarly in Chambers v. Director of Public Prosecutions, [2013] 1
W.L.R. 1833, the Queen’s Bench was faced with the following facts:

“Following an alert on the Internet social network, Twitter, the defendant
became aware that, due to adverse weather conditions, an airport from which
he was due to travel nine days later was closed. He responded by posting
several “tweets” on Twitter in his own name, including the following:
“Crap1 Robin Hood Airport is closed. You’ve got a week and a bit to get
your shit together otherwise I am blowing the airport sky high1″ None of
the defendant’s “followers” who read the posting was alarmed by it at the
time. Some five days after its posting the defendant’s tweet was read by
the duty manager responsible for security at the airport on a general
Internet search for tweets relating to the airport. Though not believed to
be a credible threat the matter was reported to the police. In interview
the defendant asserted that the tweet was a joke and not intended to be
menacing. The defendant was charged with sending by a public electronic
communications network a message of a menacing character contrary to
section 127(1)(a) of the Communications Act 2003. He was convicted in a
magistrates’ court and, on appeal, the Crown Court upheld the conviction,
being satisfied that the message was “menacing per se” and that the
defendant was, at the very least, aware that his message was of a menacing
character.”

81. The Crown Court was satisfied that the message in question was
“menacing” stating that an ordinary person seeing the tweet would be
alarmed and, therefore, such message would be “menacing”. The Queen’s
Bench Division reversed the Crown Court stating:

“31. Before concluding that a message is criminal on the basis that it
represents a menace, its precise terms, and any inferences to be drawn from
its precise terms, need to be examined in the context in and the means by
which the message was sent. The Crown Court was understandably concerned
that this message was sent at a time when, as we all know, there is public
concern about acts of terrorism and the continuing threat to the security
of the country from possible further terrorist attacks. That is plainly
relevant to context, but the offence is not directed to the inconvenience
which may be caused by the message. In any event, the more one reflects on
it, the clearer it becomes that this message did not represent a terrorist
threat, or indeed any other form of threat. It was posted on “Twitter” for
widespread reading, a conversation piece for the defendant’s followers,
drawing attention to himself and his predicament. Much more significantly,
although it purports to address “you”, meaning those responsible for the
airport, it was not sent to anyone at the airport or anyone responsible for
airport security, or indeed any form of public security. The grievance
addressed by the message is that the airport is closed when the writer
wants it to be open. The language and punctuation are inconsistent with
the writer intending it to be or it to be taken as a serious warning.
Moreover, as Mr. Armson noted, it is unusual for a threat of a terrorist
nature to invite the person making it to be readily identified, as this
message did. Finally, although we are accustomed to very brief messages by
terrorists to indicate that a bomb or explosive device has been put in
place and will detonate shortly, it is difficult to imagine a serious
threat in which warning of it is given to a large number of tweet
“followers” in ample time for the threat to be reported and extinguished.”

82. These two cases illustrate how judicially trained minds would find a
person guilty or not guilty depending upon the Judge’s notion of what is
“grossly offensive” or “menacing”. In Collins’ case, both the
Leicestershire Justices and two Judges of the Queen’s Bench would have
acquitted Collins whereas the House of Lords convicted him. Similarly, in
the Chambers case, the Crown Court would have convicted Chambers whereas
the Queen’s Bench acquitted him. If judicially trained minds can come to
diametrically opposite conclusions on the same set of facts it is obvious
that expressions such as “grossly offensive” or “menacing” are so vague
that there is no manageable standard by which a person can be said to have
committed an offence or not to have committed an offence. Quite obviously,
a prospective offender of Section 66A and the authorities who are to
enforce Section 66A have absolutely no manageable standard by which to book
a person for an offence under Section 66A. This being the case, having
regard also to the two English precedents cited by the learned Additional
Solicitor General, it is clear that Section 66A is unconstitutionally
vague.

Ultimately, applying the tests referred to in Chintaman Rao and V.G. Row’s
case, referred to earlier in the judgment, it is clear that Section 66A
arbitrarily, excessively and disproportionately invades the right of free
speech and upsets the balance between such right and the reasonable
restrictions that may be imposed on such right.

Chilling Effect And Overbreadth

83. Information that may be grossly offensive or which causes annoyance
or inconvenience are undefined terms which take into the net a very large
amount of protected and innocent speech. A person may discuss or even
advocate by means of writing disseminated over the internet information
that may be a view or point of view pertaining to governmental, literary,
scientific or other matters which may be unpalatable to certain sections of
society. It is obvious that an expression of a view on any matter may cause
annoyance, inconvenience or may be grossly offensive to some. A few
examples will suffice. A certain section of a particular community may be
grossly offended or annoyed by communications over the internet by “liberal
views” – such as the emancipation of women or the abolition of the caste
system or whether certain members of a non proselytizing religion should be
allowed to bring persons within their fold who are otherwise outside the
fold. Each one of these things may be grossly offensive, annoying,
inconvenient, insulting or injurious to large sections of particular
communities and would fall within the net cast by Section 66A. In point of
fact, Section 66A is cast so widely that virtually any opinion on any
subject would be covered by it, as any serious opinion dissenting with the
mores of the day would be caught within its net. Such is the reach of the
Section and if it is to withstand the test of constitutionality, the
chilling effect on free speech would be total.

84. Incidentally, some of our judgments have recognized this chilling
effect of free speech. In R. Rajagopal v. State of T.N., (1994) 6 SCC 632,
this Court held:

“19. The principle of Sullivan [376 US 254 : 11 L Ed 2d 686 (1964)] was
carried forward – and this is relevant to the second question arising in
this case – in Derbyshire County Council v. Times Newspapers Ltd. [(1993) 2
WLR 449 : (1993) 1 All ER 1011, HL] , a decision rendered by the House of
Lords. The plaintiff, a local authority brought an action for damages for
libel against the defendants in respect of two articles published
in Sunday Times questioning the propriety of investments made for its
superannuation fund. The articles were headed “Revealed: Socialist tycoon
deals with Labour Chief” and “Bizarre deals of a council leader and the
media tycoon”. A preliminary issue was raised whether the plaintiff has a
cause of action against the defendant. The trial Judge held that such an
action was maintainable but on appeal the Court of Appeal held to the
contrary. When the matter reached the House of Lords, it affirmed the
decision of the Court of Appeal but on a different ground. Lord Keith
delivered the judgment agreed to by all other learned Law Lords. In his
opinion, Lord Keith recalled that in Attorney General v. Guardian
Newspapers Ltd. (No. 2)[(1990) 1 AC 109 : (1988) 3 All ER 545 : (1988) 3
WLR 776, HL] popularly known as “Spycatcher case”, the House of Lords had
opined that “there are rights available to private citizens which
institutions of… Government are not in a position to exercise unless they
can show that it is in the public interest to do so”. It was also held
therein that not only was there no public interest in allowing governmental
institutions to sue for libel, it was “contrary to the public interest
because to admit such actions would place an undesirable fetter on freedom
of speech” and further that action for defamation or threat of such action
“inevitably have an inhibiting effect on freedom of speech”. The learned
Law Lord referred to the decision of the United States Supreme Court in New
York Times v. Sullivan [376 US 254 : 11 L Ed 2d 686 (1964)] and certain
other decisions of American Courts and observed – and this is significant
for our purposes-
“while these decisions were related most directly to the provisions of the
American Constitution concerned with securing freedom of speech, the public
interest considerations which underlaid them are no less valid in this
country. What has been described as ‘the chilling effect’ induced by the
threat of civil actions for libel is very important. Quite often the facts
which would justify a defamatory publication are known to be true, but
admissible evidence capable of proving those facts is not available.”
Accordingly, it was held that the action was not maintainable in law.”
85. Also in S. Khushboo v. Kanniammal, (2010) 5 SCC 600, this Court
said:

“47. In the present case, the substance of the controversy does not really
touch on whether premarital sex is socially acceptable. Instead, the real
issue of concern is the disproportionate response to the appellant’s
remarks. If the complainants vehemently disagreed with the appellant’s
views, then they should have contested her views through the news media or
any other public platform. The law should not be used in a manner that has
chilling effects on the “freedom of speech and expression”.
86. That the content of the right under Article 19(1)(a) remains the same
whatever the means of communication including internet communication is
clearly established by Reno’s case (supra) and by The Secretary, Ministry
of Information & Broadcasting v. Cricket Association of Bengal & Anr.,
(1995) SCC 2 161 at Para 78 already referred to. It is thus clear that not
only are the expressions used in Section 66A expressions of inexactitude
but they are also over broad and would fall foul of the repeated
injunctions of this Court that restrictions on the freedom of speech must
be couched in the narrowest possible terms. For example, see, Kedar Nath
Singh v. State of Bihar, [1962] Supp. 2 S.C.R. 769 at 808 -809. In point of
fact, judgments of the Constitution Bench of this Court have struck down
sections which are similar in nature. A prime example is the section
struck down in the first Ram Manohar Lohia case, namely, Section 3 of the
U.P. Special Powers Act, where the persons who “instigated” expressly or by
implication any person or class of persons not to pay or to defer payment
of any liability were punishable. This Court specifically held that under
the Section a wide net was cast to catch a variety of acts of instigation
ranging from friendly advice to systematic propaganda. It was held that in
its wide amplitude, the Section takes in the innocent as well as the
guilty, bonafide and malafide advice and whether the person be a legal
adviser, a friend or a well wisher of the person instigated, he cannot
escape the tentacles of the Section. The Court held that it was not
possible to predicate with some kind of precision the different categories
of instigation falling within or without the field of constitutional
prohibitions. It further held that the Section must be declared
unconstitutional as the offence made out would depend upon factors which
are uncertain.

87. In Kameshwar Prasad & Ors. v. The State of Bihar & Anr., [1962]
Supp. 3 S.C.R. 369, Rule 4-A of the Bihar Government Servants Conduct
Rules, 1956 was challenged. The rule states “No government servant shall
participate in any demonstration or resort to any form of strike in
connection with any matter pertaining to his conditions of service.”

88. The aforesaid rule was challenged under Articles 19 (1)(a) and (b) of
the Constitution. The Court followed the law laid down in Ram Manohar
Lohia’s case [1960] 2 S.C.R. 821 and accepted the challenge. It first held
that demonstrations are a form of speech and then held:

“The approach to the question regarding the constitutionality of the rule
should be whether the ban that it imposes on demonstrations would be
covered by the limitation of the guaranteed rights contained in Art. 19 (2)
and 19(3). In regard to both these clauses the only relevant criteria which
has been suggested by the respondent-State is that the rule is framed “in
the interest of public order”. A demonstration may be defined as “an
expression of one’s feelings by outward signs.” A demonstration such as is
prohibited by, the rule may be of the most innocent type – peaceful orderly
such as the mere wearing of a badge by a Government servant or even by a
silent assembly say outside office hours – demonstrations which could in no
sense be suggested to involve any breach of tranquility, or of a type
involving incitement to or capable of leading to disorder. If the rule had
confined itself to demonstrations of type which would lead to disorder then
the validity of that rule could have been sustained but what the rule does
is the imposition of a blanket-ban on all demonstrations of whatever type –
innocent as well as otherwise – and in consequence its validity cannot be
upheld.” (at page 374)

89. The Court further went on to hold that remote disturbances of public
order by demonstration would fall outside Article 19(2). The connection
with public order has to be intimate, real and rational and should arise
directly from the demonstration that is sought to be prohibited. Finally,
the Court held:

“The vice of the rule, in our opinion, consists in this that it lays a ban
on every type of demonstration – be the same however innocent and however
incapable of causing a breach of public tranquility and does not confine
itself to those forms of demonstrations which might lead to that result.”
(at page 384)

90. These two Constitution Bench decisions bind us and would apply
directly on Section 66A. We, therefore, hold that the Section is
unconstitutional also on the ground that it takes within its sweep
protected speech and speech that is innocent in nature and is liable
therefore to be used in such a way as to have a chilling effect on free
speech and would, therefore, have to be struck down on the ground of
overbreadth.

Possibility of an act being abused is not a ground to test its validity:

91. The learned Additional Solicitor General cited a large number of
judgments on the proposition that the fact that Section 66A is capable of
being abused by the persons who administered it is not a ground to test its
validity if it is otherwise valid. He further assured us that this
Government was committed to free speech and that Section 66A would not be
used to curb free speech, but would be used only when excesses are
perpetrated by persons on the rights of others. In The Collector of
Customs, Madras v. Nathella Sampathu Chetty & Anr., [1962] 3 S.C.R. 786,
this Court observed:
“….This Court has held in numerous rulings, to which it is unnecessary to
refer, that the possibility of the abuse of the powers under the provisions
contained in any statute is no ground for declaring the provision to be
unreasonable or void. Commenting on a passage in the judgment of the Court
of Appeal of Northern Ireland which stated:
“If such powers are capable of being exercised reasonably it is impossible
to say that they may not also be exercised unreasonably”
and treating this as a ground for holding the statute invalid Viscount
Simonds observed in Belfast Corporation v. O.D. Commission [ 1960 AC 490 at
pp. 520-521] :
“It appears to me that the short answer to this contention (and I hope its
shortness will not be regarded as disrespect) is that the validity of a
measure is not to be determined by its application to particular cases….
If it is not so exercised (i.e. if the powers are abused) it is open to
challenge and there is no need for express provision for its challenge in
the statute.”
The possibility of abuse of a statute otherwise valid does not impart to it
any element of invalidity. The converse must also follow that a statute
which is otherwise invalid as being unreasonable cannot be saved by its
being administered in a reasonable manner. The constitutional validity of
the statute would have to be determined on the basis of its provisions and
on the ambit of its operation as reasonably construed. If so judged it
passes the test of reasonableness, possibility of the powers conferred
being improperly used is no ground for pronouncing the law itself invalid
and similarly if the law properly interpreted and tested in the light of
the requirements set out in Part III of the Constitution does not pass the
test it cannot be pronounced valid merely because it is administered in a
manner which might not conflict with the constitutional requirements.”
(at page 825)

92. In this case, it is the converse proposition which would really apply
if the learned Additional Solicitor General’s argument is to be accepted.
If Section 66A is otherwise invalid, it cannot be saved by an assurance
from the learned Additional Solicitor General that it will be administered
in a reasonable manner. Governments may come and Governments may go but
Section 66A goes on forever. An assurance from the present Government even
if carried out faithfully would not bind any successor Government. It
must, therefore, be held that Section 66A must be judged on its own merits
without any reference to how well it may be administered.
Severability:

93. The argument of the learned Additional Solicitor General on this
score is reproduced by us verbatim from one of his written submissions:

“Furthermore it is respectfully submitted that in the event of Hon’ble
Court not being satisfied about the constitutional validity of either any
expression or a part of the provision, the Doctrine of Severability as
enshrined under Article 13 may be resorted to.”

94. The submission is vague: the learned Additional Solicitor General
does not indicate which part or parts of Section 66A can possibly be saved.
This Court in Romesh Thappar v. The State of Madras, [1950] S.C.R. 594
repelled a contention of severability when it came to the courts enforcing
the fundamental right under Article 19(1)(a) in the following terms:
“It was, however, argued that Section 9(1-A) could not be considered wholly
void, as, under Article 13(1), an existing law inconsistent with a
fundamental right is void only to the extent of the inconsistency and no
more. Insofar as the securing of the public safety or the maintenance of
public order would include the security of the State, the impugned
provision, as applied to the latter purpose, was covered by clause (2) of
Article 19 and must, it was said, be held to be valid. We are unable to
accede to this contention. Where a law purports to authorise the imposition
of restrictions on a fundamental right in language wide enough to cover
restrictions both within and without the limits of constitutionally
permissible legislative action affecting such right, it is not possible to
uphold it even so far as it may be applied within the constitutional
limits, as it is not severable. So long as the possibility of its being
applied for purposes not sanctioned by the Constitution cannot be ruled
out, it must be held to be wholly unconstitutional and void. In other
words, clause (2) of Article 19 having allowed the imposition of
restrictions on the freedom of speech and expression only in cases where
danger to the State is involved, an enactment, which is capable of being
applied to cases where no such danger could arise, cannot be held to be
constitutional and valid to any extent.” (At page 603)
95. It has been held by us that Section 66A purports to authorize the
imposition of restrictions on the fundamental right contained in Article
19(1)(a) in language wide enough to cover restrictions both within and
without the limits of constitutionally permissible legislative action. We
have held following K.A. Abbas’ case (Supra) that the possibility of
Section 66A being applied for purposes not sanctioned by the Constitution
cannot be ruled out. It must, therefore, be held to be wholly
unconstitutional and void. Romesh Thappar’s Case was distinguished in
R.M.D. Chamarbaugwalla v. The Union of India, [1957] S.C.R. 930 in the
context of a right under Article 19(1)(g) as follows:
“20. In Romesh Thappar v. State of Madras [ (1950) SCR 594] , the question
was as to the validity of Section 9(1-A) of the Madras Maintenance of
Public Order Act, 23 of 1949. That section authorised the Provincial
Government to prohibit the entry and circulation within the State of a
newspaper “for the purpose of securing the public safety or the maintenance
of public order.” Subsequent to the enactment of this statute, the
Constitution came into force, and the validity of the impugned provision
depended on whether it was protected by Article 19(2), which saved
“existing law insofar as it relates to any matter which undermines the
security of or tends to overthrow the State.” It was held by this Court
that as the purposes mentioned in Section 9(1-A) of the Madras Act were
wider in amplitude than those specified in Article 19(2), and as it was not
possible to split up Section 9(1-A) into what was within and what was
without the protection of Article 19(2), the provision must fail in its
entirety. That is really a decision that the impugned provision was on its
own contents inseverable. It is not an authority for the position that even
when a provision is severable, it must be struck down on the ground that
the principle of severability is inadmissible when the invalidity of a
statute arises by reason of its contravening constitutional prohibitions.
It should be mentioned that the decision in Romesh Thappar v. State of
Madras [ (1950) SCR 594] was referred to in State of Bombay v. F.N.
Balsara [ (1951) SCR 682] and State of Bombay v. United
Motors (India) Ltd. [ (1953) SCR 1069 at 1098-99] and distinguished.”[pic]
96. The present being a case of an Article 19(1)(a) violation, Romesh
Thappar’s judgment would apply on all fours. In an Article 19(1)(g)
challenge, there is no question of a law being applied for purposes not
sanctioned by the Constitution for the simple reason that the eight subject
matters of Article 19(2) are conspicuous by their absence in Article 19(6)
which only speaks of reasonable restrictions in the interests of the
general public. The present is a case where, as has been held above,
Section 66A does not fall within any of the subject matters contained in
Article 19(2) and the possibility of its being applied for purposes outside
those subject matters is clear. We therefore hold that no part of Section
66A is severable and the provision as a whole must be declared
unconstitutional.

Article 14

97. Counsel for the petitioners have argued that Article 14 is also
infringed in that an offence whose ingredients are vague in nature is
arbitrary and unreasonable and would result in arbitrary and discriminatory
application of the criminal law. Further, there is no intelligible
differentia between the medium of print, broadcast, and real live speech as
opposed to speech on the internet and, therefore, new categories of
criminal offences cannot be made on this ground. Similar offences which
are committed on the internet have a three year maximum sentence under
Section 66A as opposed to defamation which has a two year maximum sentence.
Also, defamation is a non-cognizable offence whereas under Section 66A the
offence is cognizable.

98. We have already held that Section 66A creates an offence which is
vague and overbroad, and, therefore, unconstitutional under Article
19(1)(a) and not saved by Article 19(2). We have also held that the wider
range of circulation over the internet cannot restrict the content of the
right under Article 19(1)(a) nor can it justify its denial. However, when
we come to discrimination under Article 14, we are unable to agree with
counsel for the petitioners that there is no intelligible differentia
between the medium of print, broadcast and real live speech as opposed to
speech on the internet. The intelligible differentia is clear – the
internet gives any individual a platform which requires very little or no
payment through which to air his views. The learned Additional Solicitor
General has correctly said that something posted on a site or website
travels like lightning and can reach millions of persons all over the
world. If the petitioners were right, this Article 14 argument would apply
equally to all other offences created by the Information Technology Act
which are not the subject matter of challenge in these petitions. We make
it clear that there is an intelligible differentia between speech on the
internet and other mediums of communication for which separate offences can
certainly be created by legislation. We find, therefore, that the
challenge on the ground of Article 14 must fail.

Procedural Unreasonableness

99. One other argument must now be considered. According to the
petitioners, Section 66A also suffers from the vice of procedural
unreasonableness. In that, if, for example, criminal defamation is
alleged, the safeguards available under Section 199 Cr.P.C. would not be
available for a like offence committed under Section 66A. Such safeguards
are that no court shall take cognizance of such an offence except upon a
complaint made by some person aggrieved by the offence and that such
complaint will have to be made within six months from the date on which the
offence is alleged to have been committed. Further, safeguards that are to
be found in Sections 95 and 96 of the Cr.P.C. are also absent when it comes
to Section 66A. For example, where any newspaper book or document wherever
printed appears to contain matter which is obscene, hurts the religious
feelings of some community, is seditious in nature, causes enmity or hatred
to a certain section of the public, or is against national integration,
such book, newspaper or document may be seized but under Section 96 any
person having any interest in such newspaper, book or document may within
two months from the date of a publication seizing such documents, books or
newspapers apply to the High court to set aside such declaration. Such
matter is to be heard by a Bench consisting of at least three Judges or in
High Courts which consist of less than three Judges, such special Bench as
may be composed of all the Judges of that High Court.

100. It is clear that Sections 95 and 96 of the Criminal Procedure Code
reveal a certain degree of sensitivity to the fundamental right to free
speech and expression. If matter is to be seized on specific grounds which
are relatable to the subject matters contained in Article 19(2), it would
be open for persons affected by such seizure to get a declaration from a
High Court consisting of at least three Judges that in fact publication of
the so-called offensive matter does not in fact relate to any of the
specified subjects contained in Article 19(2).

Further, Section 196 of the Cr.P.C. states:

“196. Prosecution for offences against the State and for criminal
conspiracy to commit such offence.- (1) No Court shall take cognizance of-

(a) any offence punishable under Chapter VI or under Section 153-A,
[Section 295-A or sub-section (1) of Section 505] of the Indian Penal Code,
1860 (45 of 1860), or

(b) a criminal conspiracy to commit such offence, or

(c) any such abetment, as is described in Section 108-A of the Indian Penal
Code (45 of 1860),

except with the previous sanction of the Central Government or of the State
Government.

[(1-A)

No Court shall take cognizance of-

(a) any offence punishable under Section 153-B or sub-section (2) or sub-
section (3) of Section 505 of the Indian Penal Code, 1860 (45 of 1860), or

(b) a criminal conspiracy to commit such offence,

except with the previous sanction of the Central Government or of the State
Government or of the District Magistrate.]

(2) No court shall take cognizance of the offence of any criminal
conspiracy punishable under Section 120-B of the Indian Penal Code (45 of
1860), other than a criminal conspiracy to commit [an offence] punishable
with death, imprisonment for life or rigorous imprisonment for a term of
two years or upwards, unless the State Government or the District
Magistrate has consented in writing to the initiation of the proceedings:

Provided that where the criminal conspiracy is one to which the provisions
of Section 195 apply, no such consent shall be necessary.

(3) The Central Government or the State Government may, before according
sanction [under sub-section (1) or sub-section (1-A) and the District
Magistrate may, before according sanction under sub-section (1-A)] and the
State Government or the District Magistrate may, before giving consent
under sub-section (2), order a preliminary investigation by a police
officer not being below the rank of Inspector, in which case such police
officer shall have the powers referred to in sub-section (3) of Section
155.”

101. Again, for offences in the nature of promoting enmity between
different groups on grounds of religion etc. or offences relatable to
deliberate and malicious acts intending to outrage religious feelings or
statements that create or promote enmity, hatred or ill-will between
classes can only be taken cognizance of by courts with the previous
sanction of the Central Government or the State Government. This
procedural safeguard does not apply even when a similar offence may be
committed over the internet where a person is booked under Section 66A
instead of the aforesaid Sections.

Having struck down Section 66A on substantive grounds, we need not decide
the procedural unreasonableness aspect of the Section.

Section 118 of the Kerala Police Act.

102. Learned counsel for the Petitioner in Writ Petition No. 196 of 2014
assailed sub-section (d) of Section 118 which is set out hereinbelow:

“118. Penalty for causing grave violation of public order or danger.- Any
person who,-

(d) Causes annoyance to any person in an indecent manner by
statements or verbal or comments or telephone calls or calls of any type
or by chasing or sending messages or mails by any means;
shall, on conviction be punishable with imprisonment for a term which may
extend to three years or with fine not exceeding ten thousand rupees or
with both.”

103. Learned counsel first assailed the Section on the ground of
legislative competence stating that this being a Kerala Act, it would fall
outside Entries1 and 2 of List II and fall within Entry 31 of List I. In
order to appreciate the argument we set out the relevant entries:
“List – I

31. Posts and telegraphs; telephones, wireless, broadcasting and other like
forms of communication.

List – II

1. Public order (but not including the use of any naval, military or air
force or any other armed force of the Union or of any other force subject
to the control of the Union or of any contingent or unit thereof in aid of
the civil power).

2. Police (including railway and village police) subject to the provisions
of entry 2A of List I.”

The Kerala Police Act as a whole would necessarily fall under Entry 2
of List II. In addition, Section 118 would also fall within Entry 1 of
List II in that as its marginal note tells us it deals with penalties for
causing grave violation of public order or danger.

104. It is well settled that a statute cannot be dissected and then
examined as to under what field of legislation each part would separately
fall. In A.S. Krishna v. State of Madras, [1957] S.C.R. 399, the law is
stated thus:

“The position, then, might thus be summed up : When a law is impugned on
the ground that it is ultra vires the powers of the legislature which
enacted it, what has to be ascertained is the true character of the
legislation. To do that, one must have regard to the enactment as a whole,
to its objects and to the scope and effect of its provisions. If on such
examination it is found that the legislation is in substance one on a
matter assigned to the legislature, then it must be held to be valid in its
entirety, even though it might incidentally trench on matters which are
beyond its competence. It would be quite an erroneous approach to the
question to view such a statute not as an organic whole, but as a mere
collection of sections, then disintegrate it into parts, examine under what
heads of legislation those parts would severally fall, and by that process
determine what portions thereof are intra vires, and what are not.” (at
page 410)

105. It is, therefore, clear that the Kerala Police Act as a whole and
Section 118 as part thereof falls in pith and substance within Entry 2 List
II, notwithstanding any incidental encroachment that it may have made on
any other Entry in List I. Even otherwise, the penalty created for causing
annoyance in an indecent manner in pith and substance would fall within
Entry 1 List III which speaks of criminal law and would thus be within the
competence of the State Legislature in any case.

106. However, what has been said about Section 66A would apply directly to
Section 118(d) of the Kerala Police Act, as causing annoyance in an
indecent manner suffers from the same type of vagueness and over breadth,
that led to the invalidity of Section 66A, and for the reasons given for
striking down Section 66A, Section 118(d) also violates Article 19(1)(a)
and not being a reasonable restriction on the said right and not being
saved under any of the subject matters contained in Article 19(2) is hereby
declared to be unconstitutional.

Section 69A and the Information Technology (Procedure and Safeguards for
Blocking for Access of Information by Public) Rules, 2009.

107. Section 69A of the Information Technology Act has already been set
out in paragraph 2 of the judgment. Under sub-section (2) thereof, the
2009 Rules have been framed. Under Rule 3, the Central Government shall
designate by notification in the official gazette an officer of the Central
Government not below the rank of a Joint Secretary as the Designated
Officer for the purpose of issuing direction for blocking for access by the
public any information referable to Section 69A of the Act. Under Rule 4,
every organization as defined under Rule 2(g), (which refers to the
Government of India, State Governments, Union Territories and agencies of
the Central Government as may be notified in the Official Gazette by the
Central Government)- is to designate one of its officers as the “Nodal
Officer”. Under Rule 6, any person may send their complaint to the “Nodal
Officer” of the concerned Organization for blocking, which complaint will
then have to be examined by the concerned Organization regard being had to
the parameters laid down in Section 69A(1) and after being so satisfied,
shall transmit such complaint through its Nodal Officer to the Designated
Officer in a format specified by the Rules. The Designated Officer is not
to entertain any complaint or request for blocking directly from any
person. Under Rule 5, the Designated Officer may on receiving any such
request or complaint from the Nodal Officer of an Organization or from a
competent court, by order direct any intermediary or agency of the
Government to block any information or part thereof for the reasons
specified in 69A(1). Under Rule 7 thereof, the request/complaint shall then
be examined by a Committee of Government Personnel who under Rule 8 are
first to make all reasonable efforts to identify the originator or
intermediary who has hosted the information. If so identified, a notice
shall issue to appear and submit their reply at a specified date and time
which shall not be less than 48 hours from the date and time of receipt of
notice by such person or intermediary. The Committee then examines the
request and is to consider whether the request is covered by 69A(1) and is
then to give a specific recommendation in writing to the Nodal Officer of
the concerned Organization. It is only thereafter that the Designated
Officer is to submit the Committee’s recommendation to the Secretary,
Department of Information Technology who is to approve such requests or
complaints. Upon such approval, the Designated Officer shall then direct
any agency of Government or intermediary to block the offending
information. Rule 9 provides for blocking of information in cases of
emergency where delay caused would be fatal in which case the blocking may
take place without any opportunity of hearing. The Designated Officer
shall then, not later than 48 hours of the issue of the interim direction,
bring the request before the Committee referred to earlier, and only on the
recommendation of the Committee, is the Secretary Department of Information
Technology to pass the final order. Under Rule 10, in the case of an order
of a competent court in India, the Designated Officer shall, on receipt of
a certified copy of a court order, submit it to the Secretary, Department
of Information Technology and then initiate action as directed by the
Court. In addition to the above safeguards, under Rule 14 a Review
Committee shall meet at least once in two months and record its findings as
to whether directions issued are in accordance with Section 69A(1) and if
it is of the contrary opinion, the Review Committee may set aside such
directions and issue orders to unblock the said information. Under Rule
16, strict confidentiality shall be maintained regarding all the requests
and complaints received and actions taken thereof.

108. Learned counsel for the petitioners assailed the constitutional
validity of Section 69A, and assailed the validity of the 2009 Rules.
According to learned counsel, there is no pre-decisional hearing afforded
by the Rules particularly to the “originator” of information, which is
defined under Section 2(za) of the Act to mean a person who sends,
generates, stores or transmits any electronic message; or causes any
electronic message to be sent, generated, stored or transmitted to any
other person. Further, procedural safeguards such as which are provided
under Section 95 and 96 of the Code of Criminal Procedure are not available
here. Also, the confidentiality provision was assailed stating that it
affects the fundamental rights of the petitioners.

109. It will be noticed that Section 69A unlike Section 66A is a narrowly
drawn provision with several safeguards. First and foremost, blocking can
only be resorted to where the Central Government is satisfied that it is
necessary so to do. Secondly, such necessity is relatable only to some of
the subjects set out in Article 19(2). Thirdly, reasons have to be
recorded in writing in such blocking order so that they may be assailed in
a writ petition under Article 226 of the Constitution.

110. The Rules further provide for a hearing before the Committee set up –
which Committee then looks into whether or not it is necessary to block
such information. It is only when the Committee finds that there is such a
necessity that a blocking order is made. It is also clear from an
examination of Rule 8 that it is not merely the intermediary who may be
heard. If the “person” i.e. the originator is identified he is also to be
heard before a blocking order is passed. Above all, it is only after these
procedural safeguards are met that blocking orders are made and in case
there is a certified copy of a court order, only then can such blocking
order also be made. It is only an intermediary who finally fails to comply
with the directions issued who is punishable under sub-section (3) of
Section 69A.

111. Merely because certain additional safeguards such as those found in
Section 95 and 96 CrPC are not available does not make the Rules
constitutionally infirm. We are of the view that the Rules are not
constitutionally infirm in any manner.

Section 79 and the Information Technology (Intermediary Guidelines) Rules,
2011.

112. Section 79 belongs to Chapter XII of the Act in which intermediaries
are exempt from liability if they fulfill the conditions of the Section.
Section 79 states:

“79. Exemption from liability of intermediary in certain cases.-(1)
Notwithstanding anything contained in any law for the time being in force
but subject to the provisions of sub-sections (2) and (3), an intermediary
shall not be liable for any third party information, data, or communication
link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if-
(a) the function of the intermediary is limited to providing access to a
communication system over which information made available by third parties
is transmitted or temporarily stored or hosted; or
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties
under this Act and also observes such other guidelines as the Central
Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if-
(a) the intermediary has conspired or abetted or aided or induced, whether
by threats or promise or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the
appropriate Government or its agency that any information, data or
communication link residing in or connected to a computer resource
controlled by the intermediary is being used to commit the unlawful act,
the intermediary fails to expeditiously remove or disable access to that
material on that resource without vitiating the evidence in any manner.
Explanation.-For the purposes of this section, the expression “third party
information” means any information dealt with by an intermediary in his
capacity as an intermediary.]”

113. Under the 2011 Rules, by Rule 3 an intermediary has not only to
publish the rules and regulations, privacy policy and user agreement for
access or usage of the intermediary’s computer resource but he has also to
inform all users of the various matters set out in Rule 3(2). Since Rule
3(2) and 3(4) are important, they are set out hereinbelow:-
“3. Due diligence to be observed by intermediary.-The intermediary shall
observe following due diligence while discharging his duties, namely:-

(2) Such rules and regulations, terms and conditions or user agreement
shall inform the users of computer resource not to host, display, upload,
modify, publish, transmit, update or share any information that-

(a) belongs to another person and to which the user does not have any right
to;

(b) is grossly harmful, harassing, blasphemous defamatory, obscene,
pornographic, paedophilic, libellous, invasive of another’s privacy,
hateful, or racially, ethnically objectionable, disparaging, relating or
encouraging money laundering or gambling, or otherwise unlawful in any
manner whatever;

(c) harm minors in any way;

(d) infringes any patent, trademark, copyright or other proprietary rights;

(e) violates any law for the time being in force;

(f) deceives or misleads the addressee about the origin of such messages or
communicates any information which is grossly offensive or menacing in
nature;

(g) impersonate another person;

(h) contains software viruses or any other computer code, files or programs
designed to interrupt, destroy or limit the functionality of any computer
resource;

(i) threatens the unity, integrity, defence, security or sovereignty of
India, friendly relations with foreign states, or public order or causes
incitement to the commission of any cognisable offence or prevents
investigation of any offence or is insulting any other nation.

(4) The intermediary, on whose computer system the information is stored or
hosted or published, upon obtaining knowledge by itself or been brought to
actual knowledge by an affected person in writing or through e-mail signed
with electronic signature about any such information as mentioned in sub-
rule (2) above, shall act within thirty-six hours and where applicable,
work with user or owner of such information to disable such information
that is in contravention of sub-rule (2). Further the intermediary shall
preserve such information and associated records for at least ninety days
for investigation purposes.”

114. Learned counsel for the petitioners assailed Rules 3(2) and 3(4) on
two basic grounds. Firstly, the intermediary is called upon to exercise
its own judgment under sub-rule (4) and then disable information that is in
contravention of sub-rule (2), when intermediaries by their very definition
are only persons who offer a neutral platform through which persons may
interact with each other over the internet. Further, no safeguards are
provided as in the 2009 Rules made under Section 69A. Also, for the very
reasons that Section 66A is bad, the petitioners assailed sub-rule (2) of
Rule 3 saying that it is vague and over broad and has no relation with the
subjects specified under Article 19(2).

115. One of the petitioners’ counsel also assailed Section 79(3)(b) to the
extent that it makes the intermediary exercise its own judgment upon
receiving actual knowledge that any information is being used to commit
unlawful acts. Further, the expression “unlawful acts” also goes way
beyond the specified subjects delineated in Article 19(2).

116. It must first be appreciated that Section 79 is an exemption
provision. Being an exemption provision, it is closely related to
provisions which provide for offences including Section 69A. We have seen
how under Section 69A blocking can take place only by a reasoned order
after complying with several procedural safeguards including a hearing to
the originator and intermediary. We have also seen how there are only two
ways in which a blocking order can be passed – one by the Designated
Officer after complying with the 2009 Rules and the other by the Designated
Officer when he has to follow an order passed by a competent court. The
intermediary applying its own mind to whether information should or should
not be blocked is noticeably absent in Section 69A read with 2009 Rules.

117. Section 79(3)(b) has to be read down to mean that the intermediary
upon receiving actual knowledge that a court order has been passed asking
it to expeditiously remove or disable access to certain material must then
fail to expeditiously remove or disable access to that material. This is
for the reason that otherwise it would be very difficult for intermediaries
like Google, Facebook etc. to act when millions of requests are made and
the intermediary is then to judge as to which of such requests are
legitimate and which are not. We have been informed that in other
countries worldwide this view has gained acceptance, Argentina being in the
forefront. Also, the Court order and/or the notification by the appropriate
Government or its agency must strictly conform to the subject matters laid
down in Article 19(2). Unlawful acts beyond what is laid down in Article
19(2) obviously cannot form any part of Section 79. With these two
caveats, we refrain from striking down Section 79(3)(b).

118. The learned Additional Solicitor General informed us that it is a
common practice worldwide for intermediaries to have user agreements
containing what is stated in Rule 3(2). However, Rule 3(4) needs to be
read down in the same manner as Section 79(3)(b). The knowledge spoken of
in the said sub-rule must only be through the medium of a court order.
Subject to this, the Information Technology (Intermediaries Guidelines)
Rules, 2011 are valid.

119. In conclusion, we may summarise what has been held by us above:

Section 66A of the Information Technology Act, 2000 is struck down in its
entirety being violative of Article 19(1)(a) and not saved under Article
19(2).

Section 69A and the Information Technology (Procedure & Safeguards for
Blocking for Access of Information by Public) Rules 2009 are
constitutionally valid.

Section 79 is valid subject to Section 79(3)(b) being read down to mean
that an intermediary upon receiving actual knowledge from a court order or
on being notified by the appropriate government or its agency that unlawful
acts relatable to Article 19(2) are going to be committed then fails to
expeditiously remove or disable access to such material. Similarly, the
Information Technology “Intermediary Guidelines” Rules, 2011 are valid
subject to Rule 3 sub-rule (4) being read down in the same manner as
indicated in the judgment.

Section 118(d) of the Kerala Police Act is struck down being violative of
Article 19(1)(a) and not saved by Article 19(2).

All the writ petitions are disposed in the above terms.

……………………………………..J.
(J. Chelameswar)

……………………………………..J.
(R.F. Nariman)
New Delhi,
March 24, 2015.
———————–
[1]

[2]The genealogy of this Section may be traced back to Section
10(2)(a) of the U.K. Post Office (Amendment) Act, 1935, which made it an
offence to send any message by telephone which is grossly offensive or of
an indecent, obscene, or menacing character. This Section was
substantially reproduced by Section 66 of the UK Post Office Act, 1953 as
follows:
66. Prohibition of sending offensive or false telephone messages or
false telegrams, etc.
If any person-
(a)sends any message by telephone which is grossly offensive or of an
indecent, obscene or menacing character ;
(b)sends any message by telephone, or any telegram, which he knows to
be false, for the purpose of causing annoyance, inconvenience or needless
anxiety to any other person ; or
(c)persistently makes telephone calls without reasonable cause and
for any such purpose as aforesaid,
he shall be liable on summary conviction to a fine not exceeding ten
pounds, or to imprisonment for a term not exceeding one month, or to both.
This Section in turn was replaced by Section 49 of the British
Telecommunication Act, 1981 and Section 43 of the British Telecommunication
Act, 1984. In its present form in the UK, it is Section 127 of the
Telecommunication Act, 2003 which is relevant and which is as follows:-
127. Improper use of public electronic communications network
A person is guilty of an offence if he –
sends by means of a public electronic communications network a
message or other matter that is grossly offensive or of an indecent,
obscene or menacing character; or
cause any such message or matter to be so sent.
A person is guilty of an offence if, for the purpose of causing
annoyance, inconvenience or needless anxiety to another, he-
sends by means of a public electronic communications network, a
message that he knows to be false,
causes such a message to be sent; or
persistently makes use of a public electronic communications network.

A person guilty of an offence under this section shall be liable, on
summary conviction, to imprisonment for a term not exceeding six months or
to a fine not exceeding level 5 on the standard scale, or to both.
Subsections (1) and (2) do not apply to anything done in the course
of providing a programme service (within the meaning of the Broadcasting
Act 1990 (c.42)).

[3]
[4] Incidentally, the Ark of the Covenant is perhaps the single most
important focal point in Judaism. The original ten commandments which the
Lord himself gave to Moses was housed in a wooden chest which was gold
plated and called the Ark of the Covenant and carried by the Jews from
place to place until it found its final repose in the first temple – that
is the temple built by Solomon.

[5]
[6] A good example of the difference between advocacy and incitement
is Mark Antony’s speech in Shakespeare’s immortal classic Julius Caesar.
Mark Antony begins cautiously. Brutus is chastised for calling Julius
Caesar ambitious and is repeatedly said to be an “honourable man”. He then
shows the crowd Caesar’s mantle and describes who struck Caesar where. It
is at this point, after the interjection of two citizens from the crowd,
that Antony says-
“ANTONY- Good friends, sweet friends, let me not stir you up
To such a sudden flood of mutiny.
They that have done this deed are honourable:
What private griefs they have, alas, I know not,
That made them do it: they are wise and honourable,
And will, no doubt, with reasons answer you.
I come not, friends, to steal away your hearts:
I am no orator, as Brutus is;
But, as you know me all, a plain blunt man,
That love my friend; and that they know full well
That gave me public leave to speak of him:
For I have neither wit, nor words, nor worth,
Action, nor utterance, nor the power of speech,
To stir men’s blood: I only speak right on;
I tell you that which you yourselves do know;
Show you sweet Caesar’s wounds, poor poor dumb mouths,
And bid them speak for me: but were I Brutus,
And Brutus Antony, there were an Antony
Would ruffle up your spirits and put a tongue
In every wound of Caesar that should move
The stones of Rome to rise and mutiny.
ALL- We’ll mutiny.”
[7]
[8] In its present form the clear and present danger test has been
reformulated to say that:

“The constitutional guarantees of free speech and free press do not
permit a State to forbid or proscribe advocacy of the use of force or of
law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such
action.”

Interestingly, the US Courts have gone on to make a further
refinement. The State may ban what is called a “true threat”.

“‘True threats’ encompass those statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals.”

“The speaker need not actually intend to carry out the threat.
Rather, a prohibition on true threats protects individuals from the fear of
violence and from the disruption that fear engenders, in addition to
protecting people from the possibility that the threatened violence will
occur. Intimidation in the constitutionally proscribable sense of the word
is a type of true threat, where a speaker directs a threat to a person or
group of persons with the intent of placing the victim in fear of bodily
harm or death.”

See Virginia v. Black (Supra) and Watts v. United States 22 L. Ed.
2d. 664 at 667

Husband’s extra-marital relationship affairs does not amount to cruelty:

 

In the instant case, where the question arose that whether a husband’s extra-marital affair amounts to cruelty under Section 498A of IPC, the Bench of Dipak Misra and S.J Mukhopadhayay, JJ., observed that husband’s intimacy with another woman during the subsistence of marriage and failure to perform his marital responsibilities would not amount to cruelty, even though the evidences in the instant case point out towards an extra marital affair, the same cannot be termed as a form of mental cruelty of such a degree that would compel the wife to commit suicide. The Bench further observed that extra- marital affair if proved would be immoral and illegal, but it would take a different character altogether if the prosecution proves that the accused person’s conduct is such that it drove the wife to end her life.

As per the facts of the present case, the wife of one of the appellant (Rakesh) had committed suicide, allegedly after coming to know about her husband’s illicit relationship with another woman, thereby leading to the appellants’ conviction under Sections 498A, 306, 201 and 114 of IPC. It was argued by the appellants’ counsel Harish Raichura that the husband had already divorced the deceased before the suicide took place. The prosecution counsel Anurag Ahluwalia however contended that the husband’s extra- marital affair led to several arguments between them finally compelling the deceased to commit suicide. The appellants were found guilty by the Sessions Court and were convicted; further the conviction was upheld by the Gujarat High Court.

 

 

IN THE SUPREME COURT OF INDIA

 

CRIMINAL APPELLATE JURISDICTION

 

CRIMINAL APPEAL NO. 262 OF 2009

 

 

Ghusabhai Raisangbhai Chorasiya & Ors. …   Appellants

 

Versus

 

State of Gujarat                        … Respondent

 

 

J U D G M E N T

Dipak Misra, J.

The present appeal, by special leave, is directed against the judgment of conviction and order of sentence passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 444/2005 whereby the Division Bench has affirmed the conviction recorded by the learned Additional Sessions Judge, Jamnagar, who had found the appellants guilty of the offences punishable under Section 498A, 306, 201 and 114 of the Indian Penal Code, 1860 (‘IPC’ for short) and sentenced Ghusabhai Raisinghbhai Chorasia, appellant no.1 to suffer five years imprisonment, Rakesh Ghusabhai Chorasia, appellant no.2 to suffer rigorous imprisonment for seven years and to pay a fine of Rs.500/- with a default clause and other accused persons, namely, Bakuben W/o Ghusabhai Chorasia and Jasuben @ Gaduben Rakeshbhai, appellant nos. 3 and 4 herein to suffer rigorous imprisonment for three years and to pay fine of Rs.250/- with a default clause under Section 306 IPC. That apart, separate sentences were imposed under Section 498A and 201 with the stipulation that all the sentences would run concurrently. Be it noted, the appellants were tried along with two other accused persons, namely, Sangitaben w/o. Vijaybhai and Vijay Ghusabhai Chorasia who were acquitted by the learned trial Judge. It is also apt to note here that the State had also preferred two criminal appeals, one for enhancement of sentence and the other challenging the acquittal of the other two accused persons and both the appeals were dismissed along with the appeal filed by the appellants in a common judgment.

  1. The prosecution case, bereft of unnecessary details, is that the marriage between the deceased Biniben and Rakesh was solemnized approximately eight years before the date of occurrence, i.e. 4.3.2004. As put forth by the prosecution, Rakesh, husband of the deceased, had illicit relationsHIP with Jasuben, a divorcee. Despite the said situation two children were born in the wedlock but the compatibility between the husband and wife and the harmony of family life could not be sustained. When the first child was three months old, the deceased was driven out by her husband and she came to her parental home and stayed there for sometime. After the intervention of the elders and relatives a settlement was arrived at and thereafter she came to stay in her in- laws house. It was the further case of the prosecution that the husband was keen in his extra-marital affair and that had led to more marital discord and bitterness. The in-laws, as alleged, used to take away the income earned by her. A time came when she was compelled to stay on the terrace of the house where she committed suicide on 4th of March, 2004.
  2. As the case of the prosecution further gets uncurtained, the dead body was cremated without informing the parents of the deceased and the factum of the death was reported by the father-in-law of the deceased on 14th of March, 2004 and eventually the mother of the deceased came to know about the death on 17th of March, 2004 and thereafter reported at the Police Station in Jamnagar. After the criminal law was set in motion, the investigating agency proceeded with the investigation and recorded the statements of 25 witnesses and eventually placed the charge- sheet under Sections 498A, 306 and Section 201 read with Section 114 of the Indian Penal Code, before the competent court. After the charge- sheet was filed, the learned Magistrate committed the matter to the Court of Session.
  3. The accused persons abjured their guilt and wanted to be tried.
  4. During the trial, the prosecution in order to establish the charges levelled against the accused persons, examined 25 witnesses and exhibited certain documents.
  5. The learned trial Judge placing reliance on the ocular as well as the documentary evidence came to hold that four accused persons, namely, father-in-law A-1, husband A-2, mother-in-law A-3 and the woman with whom the husband was having illicit relationship, A-4, guilty of the offences. However, the trial Judge acquitted the elder brother of the husband and his wife for lack of evidence.
  6. Being dissatisfied with the aforesaid judgment of conviction and order of sentence, the accused filed Criminal Appeal No. 444 of 2005. As stated earlier, the State preferred Criminal Appeal No. 2408 of 2005 for enhancement of sentence and Criminal Appeal No. 2410 of 2005 assailing the judgment of the acquittal of two accused persons.
  7. The High Court appreciating the evidence brought on record, declined to interfere in the appeals preferred by the State and resultantly all the appeals stood dismissed.
  8. Be it noted, the principal witnesses on whom the prosecution relied are Dakshaben Shantilal Shah, PW-9, a social worker at Vikas Vidhyalay (Vadhvan), Miraben Devsinhbhai, PW-21, sister of the deceased, Champaben Devsinhbhai, PW-18, mother of the deceased, Kanaiyabhai Devsinhbhai, PW-19, brother of the deceased and Natubhai Hirabhai, PW- 17, Sarpanch of village Rajsitapur.
  9. Accused persons in their statements recorded under Section 313 took the plea that there was a divorce between the deceased and the accused No. 2, her husband; that she was staying on the terrace of the house; that she committed suicide by consuming poison; and that the accused persons had no role in it. The defence, to substantiate its plea, examined one witness and got two documents exhibited.
  10. We have heard Mr. Harish Raichura, learned counsel for the appellants and Mr. Anurag Ahluwalia, learned counsel for the State.
  11. On a careful scrutiny of the findings of the learned trial Judge and that of the High Court, it is noticeable that both the Courts have found that cruelty, as alleged by the prosecution under Section 498A IPC was established as a result of which the deceased committed suicide. It is quite clear from the findings and evidence on record that there was no demand of dowry. The learned trial Judge as well as the High Court has proceeded on the base that there was cruelty as per the first limb of Section 498A IPC.
  12. The singular issue that requires to be scrutinized is whether there was such cruelty by the husband and his relations that could have driven the deceased to commit suicide. The stand of the accused persons, as has been indicated hereinabove, was that the husband had already divorced the deceased and she was staying on the terrace. On a proper x-ray of the material brought on record, it is manifest that the prosecution has brought on evidence, three documents, exhibits 65 to 67, on record to show that there was divorce. The sister of the deceased, Miraben Devsinhbhai, PW-21, has categorically deposed that she had talked to the deceased on telephone before her death and the deceased had told her that there has been a divorce between her husband and herself and she was staying on the terrace of the house and will leave for the parental home after the ‘Holi’ festival.
  13. The documents that have been produced by the prosecution, namely, Exhibits 67 to 69 have not been believed by the learned trial Judge as well as the High Court on the ground that there is some unacceptable discrepancy.
  14. At this juncture, it is appropriate to mention that the Holi festival in the said year fell on 6.3.2004 and the occurrence took place on March 4, 2004. It is also noticeable that the sister of the deceased had volunteered to speak about the conversation of divorce. The document shows that there was a divorce as per the customs. There is material on record to show that she was staying on the terrace. In this factual backdrop what is to be seen is whether there has been a cruelty which compelled her to commit suicide. In this regard, we may fruitfully refer to Section 498A of the IPC, which reads as under:

“498A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.-For the purpose of this section, “cruelty” means-

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) 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.”

  1. This Court in Girdhar Shankar Tawade V. State of Maharashtra[1], examining the scope of 498A, has observed thus:

“The basic purport of the statutory provision is to avoid “cruelty” which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word “cruelty” as is expressed by the legislatures: whereas Explanation (a) involves three specific situations viz. (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of “cruelty” in terms of Section 498-A.”

  1. In Gurnaib Singh V. State of Punjab[2], while analyzing the aforesaid provision, it has been opined that Clause (a) of the Explanation to Section 498A IPC defines cruelty to mean “any willful conduct which is of such a nature as is likely to drive the woman to commit suicide”. Clause (b) of the Explanation pertains to unlawful demand and Clause (a) can take in its ambit mental cruelty.
  2. From the aforesaid authorities it is quite clear that the first limb of Section 498A, which refers to cruelty, has nothing to do with demand of dowry. In the present case, in fact, there is no demand of dowry. If the evidence is appropriately appreciated, the deceased was pained and disturbed as the husband was having an illicit affair with the appellant no.4. Whether such a situation would amount to cruelty under the first limb of Section 498A IPC is to be seen. A two-Judge Bench of this Court in Pinakin Mahipatray Rawal V. State of Gujarat[3], while dealing with extra marital relationship, has held thus:

“Marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their upbringing, services in the home, support, affection, love, liking and so on. Extramarital relationship as such is not defined in the Penal Code. Though, according to the prosecution in this case, it was that relationship which ultimately led to mental harassment and cruelty within the Explanation to Section 498-A and that A-1 had abetted the wife to commit suicide.”

xxxxx xxxxx xxxxx “We are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to “cruelty”, but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the Explanation to Section 498-A IPC. Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498-A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one’s life. We, on facts, found that the alleged extramarital relationship was not of such a nature as to drive the wife to commit suicide or that A-1 had ever intended or acted in such a manner which under normal circumstances, would drive the wife to commit suicide.”

The Court further proceeded to state:

“Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extramarital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.”

  1. After holding as aforesaid, the Court found on facts and especially referring to suicide note that one can infer that the deceased was so possessive of her husband, and was always under an emotional stress that she might lose her husband and that apart she had exonerated the husband and accordingly it would not come within the scope and ambit of Section 306 IPC.
  2. Coming to the facts of the present case, it is seen that the factum of divorce has not been believed by the learned trial Judge and the High Court. But the fact remains is that the husband and the wife had started living separately in the same house and the deceased had told her sister that there was severance of status and she would be going to her parental home after the ‘Holi’ festival. True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal (supra), but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with the appellant no.4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498A which includes cruelty to drive a woman to commit suicide, would not be attracted.
  3. Presently, adverting to the involvement of the other accused persons, that is, appellant nos. 1, 3 and 4, we find that there is no allegation of any kind of physical torture. The evidence brought on record against them with regard to cruelty is absolutely sketchy and not convincing. It has been alleged that the mother-in-law used to rob her money which she earned as wages. The said fact has really not been established. As far as appellant no. 4, Jesuben, is concerned, there is only one singular allegation that at one public place, i.e. in a ‘mela’, she had threatened the deceased that she would be divorced by her husband. On the basis of the said evidence, it is difficult to sustain the conviction under Sections 306 and 498A IPC. Once we are holding that the accused-appellants are not guilty of the offence under Section 306 and 498A IPC, the conviction under Section 201 IPC is also not sustainable.
  4. In view of the aforesaid analysis, the appeal is allowed, the conviction and sentence of all the appellants are set aside. As they are on bail, they be discharged of their bail bonds.

………………………………………………..J.

[DIPAK MISRA] …………………………………………………J.

[SUDHANSU JYOTI MUKHOPADHAYA] NEW DELHI FEBRUARY 18, 2015.

 

 

 

With so many issues related to working women being reported each day, ensuring implementation of the laws for their protection and welfare becomes essential.

The most recent development is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The Act extends to working women in all kinds of organisations—private, government, multinational, factories, establishments, shops and even domestic workers. According to the Act, the managements are required to have internal committees to deal with complaints relating to sexual harassment. Then a local committee has to be constituted in districts to address complaints of sexual harassment of women. Proper enquiry is to be conducted on receipt of a complaint. In case the male employee is found guilty, penalty, including dismissal, can be imposed apart from deduction of salary to be paid as compensation to women employee. In case the woman is found guilty of making a false complaint, which of course would mean a complaint not proved, penalty can be imposed upon the women employee as well. The provisions of the Act are mandatory and if not complied with, can result in imposition of fine as well as imprisonment. Criminal actions are also available to women for complaints relating to sexual offences under the Indian Penal Code.

For the benefit of women, several other Acts also exist such as Maternity Benefit Act,1961 which provides for maternity leave. There are Acts governing their working hours as well. Such as Factories Act,1948 and Shops and Establishments Act in states because of which women employees cannot be made to work beyond  stipulated hours. Exemptions are available in various states for certain kinds of employment from provisions of working hours, however, proper working conditions, security, transportation, etc. are to be provided.

Even with respect to salary/wages, there cannot be discrimination between male and female workers performing same or similar work. For protection of the same, there is the Equal Remuneration Act, 1976. Those working as contract labour are also protected by Contract Labour (Regulation and Abolition) Act, 1970 and the rules there under which stipulate that for same or similar work coupled with other factors, there will be similar wages.

There is no lack of enactments, but there has to be  more awareness and implementation, especially in remote areas where women are uneducated, unaware of laws and do not have resources. Unfortunately, in many parts, women are not even aware that they are meant to be protected and respected. Issues of sexual harassment are also seen in smaller companies as well as public departments in cities, where there is lack of proper supervision and inaction. It is suggested that in remote areas, labour inspectors be asked to visit factories and establishments at regular intervals, enforce attendance of women employees, make them aware of laws and take action on problems. All this should be done in writing. In this manner, women would be made aware of laws and there would be fear of violation of laws or committing sexual misconduct. For companies and government departments in cities, it is advisable to have regular awareness programmes.

What our country needs most is awareness, faster procedures, implementation and regular checks. With these, we can achieve much better economic and social conditions. What is required is systematic performance of duties. To ensure the same, procedures need to include time limits, calling of explanations for inaction and corrective actions against those who weaken the system

 

Govt took 15 years to pass the bill

We should first welcome the government’s move to pass the bill and think of how it will be implemented. It took the government 15 years to pass the bill after the Supreme Court had given directives to implement Vishakha Guidelines in 1997 and suggested there should be a separate law to protect women’s rights. I think it is necessary to protect women from harassments as these problems are quite common at workplace.

 

INSPIRATION

 

The ambit of the Sexual Harassment Act is very wide and is applicable to the organized sector as well as the unorganized sector. In view of the wide definition of ‘workplace’, the statute, inter alia, applies to government bodies, private and public sector organisations, non-governmental organisations, organisations carrying on commercial, vocational, educational, entertainmental, industrial, financial activities, hospitals and nursing homes, educational institutes, sports institutions and stadiums used for training individuals. As per the Sexual Harassment Act, a workplace also covers within its scope places visited by employees during the course of employment or for reasons arising out of employment – including transportation provided by the employer for the purpose of commuting to and from the place of employment2 .

 

The definition of ‘employee’ under the Sexual Harassment Act is fairly wide and covers regular, temporary, ad hoc employees, individuals engaged on daily wage basis, either directly or through an agent, contract labour, co-workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied.

Internal Complaints Committee and Local Complaints Committee : The Sexual Harassment Act requires an employer to set up an ‘Internal Complaints Committee’ (“ICC”) at each office or branch, of an organization employing at least 10 employees. The government is in turn required to set up a ‘Local Complaints Committees’ (“LCC”) at the district level to investigate complaints regarding sexual harassment from establishments where the ICC has not been constituted on account of the establishment having less than 10 employees or if the complaint is against the employer. The Sexual Harassment Act also sets out the constitution of the committees, process to be followed for making a complaint and inquiring into the complaint in a time bound manner.

 

The Sexual Harassment Act empowers the ICC and the LCC to recommend to the employer, at the request of the aggrieved employee, interim measures such as (i) transfer of the aggrieved woman or the respondent to any other workplace; or (ii) granting leave to the aggrieved woman up to a period of 3 months in addition to her regular statutory/ contractual leave entitlement.

Please refer to the following flowchart which provides, in brief, the process to be followed by the aggrieved employee to make the complaint and by the employer to inquire into the complaint. The law allows female employees to request for conciliation in order to settle the matter although a monetary settlement should not be made as a basis of conciliation

 

In addition to ensuring compliance with the other provisions stipulated, the Sexual Harassment Act casts certain obligations upon the employer to, inter alia,

provide a safe working environment

display conspicuously at the workplace, the penal consequences of indulging in acts that may constitute sexual harassment and the composition of the Internal Complaints Committee

organise workshops and awareness programmes at regular intervals for sensitizing employees on the issues and implications of workplace sexual harassment and organizing orientation programmes for members of the Internal Complaints Committee.

treat sexual harassment as a misconduct under the service rules and initiate action for misconduct.

 

Vishaka guidelines require the employers at workplaces  as  well
as other responsible persons or institutions  to observe  them   and  ensure
the prevention of sexual harassment  to  women.  These  guidelines  read  as
under :
           “1. Duty  of  the  employer  or  other  responsible  persons  in
           workplaces and other institutions:
           It shall be the  duty  of  the  employer  or  other  responsible
           persons in workplaces or other institutions to prevent or  deter
           the commission of acts of sexual harassment and to  provide  the
           procedures for the resolution, settlement or prosecution of acts
           of sexual harassment by taking all steps required.
           2. Definition:
           For this purpose,  sexual  harassment  includes  such  unwelcome
           sexually  determined   behaviour   (whether   directly   or   by
           implication) as:
                 (a)   physical contact and advances;
                 (b)   a demand or request for sexual favours;
                 (c)   sexually-coloured remarks;
                 (d)   showing pornography;
                 (e)   any other unwelcome physical, verbal  or  non-verbal
           conduct of sexual nature.
           Where any of these acts is committed in circumstances whereunder
           the victim of such conduct has a reasonable apprehension that in
           relation to the victim’s  employment  or  work  whether  she  is
           drawing  salary,  or  honorarium  or   voluntary,   whether   in
           government, public or private enterprise  such  conduct  can  be
           humiliating and may constitute a health and safety  problem.  It
           is discriminatory for instance when  the  woman  has  reasonable
           grounds to believe that her objection would disadvantage her  in
           connection with her employment or work including  recruiting  or
           promotion or when it creates a hostile work environment. Adverse
           consequences might be visited if the victim does not consent  to
           the conduct in question or raises any objection thereto.

 

 

 

 

In the present case, the accused has taken the defence plea of
suicide pact even in the trial court while being questioned under
Section 313 Cr.P.C. The defence version is probabilized by the above
facts and circumstances of the case. The death of deceased was not
premeditated and the act of the accused causing death of Nathi, in our
view, appears to be in furtherance of the understanding between them to
commit suicide and the consent of the deceased and the act of the accused
falls under Exception 5 of Section 300 IPC. Since the accused
intentionally caused the death; the appellant is found guilty under
Section 304 Part I IPC. The appellant is stated to be in custody for more
than 10 years.
18. In the light of the foregoing discussion, the conviction of the
appellant under Section 302 IPC is modified and the appellant is
convicted under Section 304 Part I IPC and sentenced to undergo
imprisonment for the period already undergone by him and the appeal is
allowed in part. The sentence of imprisonment for conviction under
Section 309 IPC is ordered to run concurrently. The appellant is in jail,
and he be released forthwith if not required in any other case.

——————————————————————————————————————————————————————————————-

Non-Reportable

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1902 OF 2014
(Arising out of SLP (Crl.) No. 1800 of 2014)

NARENDRA ….Appellant

Versus

STATE OF RAJASTHAN … Respondent

J U D G M E N T

R. BANUMATHI, J.
Delay condoned. Leave granted.
2. This appeal is directed against the judgment dated 9.11.2011
passed by the Jodhpur Bench of Rajasthan High Court in D.B. Crl. Appeal No.
950/2004 by which the High Court has confirmed conviction of the appellant
under Sections 302 and 309 IPC and the sentence imposed upon him.
3. Briefly stated, the case of the prosecution is that Nathi,
sister of PW-3 Naresh Salvi, got married to Magan Salvi. About two years
prior to the incident, due to differences with her husband, Nathi left her
matrimonial house and she was residing at her parents’ house, Mauza Basti,
District Udaipur. While staying at her parents’ house, Mauza Basti, Nathi
developed intimacy with Narendra- the accused. About three months prior to
the incident, Nathi and the accused eloped and returned to the village
after 10-15 days. On 19.03.2003, the parents of the deceased and the
complainant went for work. PW-3 was also not at home and he was
participating in some events pertaining to Holi festival and Nathi was all
alone at home. At about 2.30 p.m., on returning home, PW-3 found the main
gate closed, and despite calling, the gate was not opened from inside.
Thereafter PW-3 entered into the interior open floor of the house through
the outer wall, wherefrom he saw Nathi and Narendra standing in a room
with closed door. From the peep-hole of the door, PW-3 saw the accused
with a sword in his hand and the accused inflicted sword blows on the
deceased and caused stab injuries on the chest and the abdomen. On hearing
the alarm raised by PW-3, neighbours Kalu Lal and Shankar Lal and others
came to the place of occurrence and the door of the room was opened. Nathi
was found on the floor with stab injuries bleeding all over and accused
was also found having stab wounds in his abdomen.
4. On oral information given by PW 1- Shankar Lal, Sarpanch Kishan
Singh had telephoned to police and FIR was registered against the accused.
PW 7 – Dr. M.L. Purbia conducted autopsy on the body of the deceased Nathi
and opined that the cause of death was due to shock and excessive bleeding
in the chest. PW-7 examined the injuries on the person of accused and
issued Exhibit P-12 Injury Certificate. After completion of investigation
the accused was challaned for the offences punishable under Sections 302
and 309 IPC.
5. To bring home the guilt of the accused, prosecution examined
PWs -1 to 17 and exhibited documents and material objects. The accused was
questioned under Section 313 Cr.P.C about the incriminating evidence and
circumstances. The accused stated that he is innocent and he had not
committed the offence. The accused further stated that himself and Nathi
were in love which was not accepted by the villagers and hence they tried
to commit suicide in which he survived and the deceased Nathi died.
6. The trial court, on consideration of evidence, convicted the
appellant under Section 302 IPC and sentenced him to undergo imprisonment
for life and imposed a fine of Rs.2,000/-, in default of payment of fine to
further undergo three months simple imprisonment. The trial court also
convicted the appellant under Section 309 IPC and sentenced him to undergo
simple imprisonment for six months and a fine of Rs.500/- was imposed and
both the sentences were ordered to run concurrently. On appeal, the High
Court confirmed the conviction and sentence imposed on the appellant under
Sections 302 and 309 IPC. Being aggrieved, the appellant has preferred
this appeal.
7. The learned counsel for the appellant contended that as per the
evidence of PW 3, the appellant and the deceased Nathi were in the closed
room and PW 3 could not have viewed the occurrence inside the room and the
site sketch does not make a mention about the peep-hole of the door and
while so, the courts erred in placing reliance upon the evidence of PW-3 to
convict the accused. It was contended that the accused and the deceased
were in deep love and both belonged to the same caste and the villagers
were not ready to accept the relationship of the accused and deceased and,
therefore, both of them tried to commit suicide and only on the consent of
the deceased, the accused inflicted injuries on the deceased and the
offence committed by the accused attracts Exception 5 of Section 300 IPC
punishable under Section 304 Part I IPC.
8. The learned counsel for the State took us through the evidence
of PW 3 and submitted that PW 3 being reliable witness, based on his
evidence, the courts below rightly held the appellant guilty of the
offence. The learned counsel contended that the stab injuries inflicted in
the chest and the abdomen of the deceased clearly show that the accused
intentionally inflicted the injuries to cause death of the deceased and the
courts rightly disbelieved the defence version and convicted the appellant.
9. We have carefully considered the submissions of the learned
counsel appearing for the parties. The explanation of the accused whether
he acted in furtherance of the suicide pact and whether the homicide falls
under Exception 5 of Section 300 IPC and whether the conviction of the
appellant is to be modified under Section 304 Part I IPC are the points
falling for our consideration.
10. The essential facts are not in dispute. That deceased Nathi
after leaving her matrimonial house, while she was residing at her
maternal home, she has developed love and intense relationship with the
accused Narendra. There is adequate evidence which clearly show the love
affair between the deceased and the accused. Since the deceased and the
accused were of the same gotra, their relationship was not accepted by the
villagers. PW-3 admits that Nathi and accused were in love and that
Nathi and the accused eloped and lived together for about 10-15 days. A
panchayat was convened after Nathi returned home. In his evidence PW 3
stated that Nathi having left her previous husband, wanted to marry the
accused; but to Gotra of both being one the marriage could not be
held. As their desire of marriage was not accepted by the villagers,
perhaps accused and the deceased were dejected.
11. In the incident, the accused had inflicted injuries with
the sword on the chest and the abdomen and from Ex.P.13-post mortem
report, it is seen that the deceased had sustained the following injuries:
“External Injuries:
(1) Stab wound with one end (edge) is sharp and other is rounded 4.5 cm.
X 2cm. X intra thorax deep on left breast in 5 the inter coastal space
going obliquely postero medially piercing right ventricle of heart of apex.
(2) Stab wound 4.5 x 2cm. x intra abdominal Horizontal – on Supra pubic
region 6cm. below umbilicus in mid low piercing peritoneum and intestine
one and is sharp.
(3) Stab wound 4.5 cm x 2cm x abdominal deep on right side abdomen 6 cm
lateral to umbilicus piece of intestine come out.
(4) Incised wound 6cm x 3cm x bone deep on middle 1/3 of left forearm,
muscles and blood vessels cut down.
(5) Incised wound 3.5cm x 2cm x muscles deep x 3cm proximal to 4th
injury.
(6) Incised wound 2.5cm x 0.2cm x skin deep right elbow.
Bruise 5 cm. x 4cm on right hand posteriorly.”

PW-7 Dr. M.L. Purbia opined that the death was due to shock and haemorrhage
and injury No.1 was sufficient to cause the death.
12. The accused also had the following stab injuries.
“1. Stab wound- 2cm x 1cm. x intra abdominal deep- near umbilicus –
reserved sharp.
2. Stab wound- 1.5cm x 1 cm x deep intra abdominal- on umbilicus 1 cm
away from injury No.1- reverse sharp.
3. Stab wound- 2 cm. x 1 cm x intra abdominal – near umbilicus 1.5 cm
below injury No.2 -reverse sharp.”

The accused self inflicted the above injuries and tried to commit suicide.

13. The trial court and the High Court recorded concurrent findings
that the accused caused the death of Nathi and he also attempted to commit
suicide and the said findings are unassailable. While explaining the
circumstances in which he caused the death of the deceased, the appellant
stated that he and deceased, Nathi were in love and they also solemnized
their marriage and since the appellant and deceased belonged to the same
sub-caste, the villagers had objections for their relationship and
therefore both himself and Nathi tried to commit suicide. The defence
version is that acting on the consent of Nathi, appellant inflicted
sword injuries on Nathi and Nathi died but before however the appellant
could kill himself, there was intervention and therefore he could not kill
himself and the act of the accused causing death of Nathi falls under
Exception 5 of Section 300 IPC punishable under Section 304 Part I IPC.
Reliance is placed upon the circumstance that the accused had also
sustained stab injuries.
14. The High Court disbelieved the defence version by saying that
to bring the accused within the four corners of Exception 5 of Section
300 IPC, there must be cogent evidence to show that the deceased had given
such consent and there is no material on record to establish such free and
voluntary consent of the deceased for her death. The High Court also
observed that there was no evidence to show that the deceased was
experiencing intolerable mental sufferings with no prospect of improvement
and that she took the decision that death was the only resort.
15. Under Exception 5 to Section 300 IPC “culpable homicide is not
murder when the person whose death is caused, being above the age of
18 years, suffers death or takes the risk of death with his own consent.”
To attract Exception 5 to Section 300 IPC, there must have been free and
voluntary consent of the deceased person. The onus of proving consent of
the deceased person is on the accused. Exception 5 of Section 300 IPC
must receive a strict and not a liberal interpretation. In applying the
said Exception, the act alleged to be consented to or authorized by the
victim must be considered by a close scrutiny. The court must in each case
consider the evidence and the surrounding circumstances while considering
the question of consent.
16. In the present case, in our view, there are formidable
circumstances discernible from the evidence which probablise the defence
version which are as under:
(a) Deceased Nathi and the accused were in love and they were
intending to get married. Since they belonged to the same gotra, their
relationship was not accepted by the villagers and they objected to the
same;
(b) About three months prior to the incident, Nathi and accused
left the village and lived together for about 10-15 days and thereafter
Nathi returned to her matrimonial house;
(c) On 19.3.2003, the parents of the deceased went for work and PW-3 was
also engaged in some events pertaining to Holi festival and Nathi was
alone in the house;
(d) When the accused came to the house of the deceased, he was not
armed; he had taken the sword from inside the room of the house;

(e) PW-3, nowhere stated that at the time of the incident his sister
quarrelled with the accused. When the accused inflicted sword blows,
deceased Nathi had not raised any alarm nor shouted for help;
(f) the accused was also having the stab injuries on his person.
17. In the present case, the accused has taken the defence plea of
suicide pact even in the trial court while being questioned under
Section 313 Cr.P.C. The defence version is probabilized by the above
facts and circumstances of the case. The death of deceased was not
premeditated and the act of the accused causing death of Nathi, in our
view, appears to be in furtherance of the understanding between them to
commit suicide and the consent of the deceased and the act of the accused
falls under Exception 5 of Section 300 IPC. Since the accused
intentionally caused the death; the appellant is found guilty under
Section 304 Part I IPC. The appellant is stated to be in custody for more
than 10 years.
18. In the light of the foregoing discussion, the conviction of the
appellant under Section 302 IPC is modified and the appellant is
convicted under Section 304 Part I IPC and sentenced to undergo
imprisonment for the period already undergone by him and the appeal is
allowed in part. The sentence of imprisonment for conviction under
Section 309 IPC is ordered to run concurrently. The appellant is in jail,
and he be released forthwith if not required in any other case.

………………………….J
(T.S. Thakur)
………………………….J
(R. Banumathi)

New Delhi;
September 2, 2014

———————–
12

 

(i) An offence under Section 138 of the Negotiable Instruments Act, 1881
is committed no sooner a cheque drawn by the accused on an account being
maintained by him in a bank for discharge of debt/liability is returned
unpaid for insufficiency of funds or for the reason that the amount exceeds
the arrangement made with the bank.
(ii) Cognizance of any such offence is however forbidden under Section 142
of the Act except upon a complaint in writing made by the payee or holder
of the cheque in due course within a period of one month from the date the
cause of action accrues to such payee or holder under clause (c) of proviso
to Section 138.
(iii) The cause of action to file a complaint accrues to a
complainant/payee/holder of a cheque in due course if
(a) the dishonoured cheque is presented to the drawee bank within a
period of six months from the date of its issue.

(b) If the complainant has demanded payment of cheque amount within thirty
days of receipt of information by him from the bank regarding the dishonour
of the cheque and

(c) If the drawer has failed to pay the cheque amount within fifteen days
of receipt of such notice.

(iv) The facts constituting cause of action do not constitute the
ingredients of the offence under Section 138 of the Act.
(v) The proviso to Section 138 simply postpones/defers institution of
criminal proceedings and taking of cognizance by the Court till such time
cause of action in terms of clause (c) of proviso accrues to the
complainant.
(vi) Once the cause of action accrues to the complainant, the jurisdiction
of the Court to try the case will be determined by reference to the place
where the cheque is dishonoured.
(vii) The general rule stipulated under Section 177 of Cr.P.C applies to
cases under Section 138 of the Negotiable Instruments Act. Prosecution in
such cases can, therefore, be launched against the drawer of the cheque
only before the Court within whose jurisdiction the dishonour takes place
except in situations where the offence of dishonour of the cheque
punishable under Section 138 is committed along with other offences in a
single transaction within the meaning of Section 220(1) read with Section
184 of the Code of Criminal Procedure or is covered by the provisions of
Section 182(1) read with Sections 184 and 220 thereof.

 

———————————————————————————————————————————————————————-

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2287 OF 2009

Dashrath Rupsingh Rathod …..Appellant

Versus

State of Maharashtra & Anr. …..Respondents

W I T H

CRIMINAL APPEAL NO. 1593 OF 2014
[Arising out of S.L.P.(Crl.)No.2077 of 2009];
CRIMINAL APPEAL NO. 1594 OF 2014
[Arising out of S.L.P.(Crl.)No.2112 of 2009];
CRIMINAL APPEAL NO. 1595 OF 2014
[Arising out of S.L.P.(Crl.)No.2117 of 2009];
CRIMINAL APPEAL NOS. 1596-1600 OF 2014
[Arising out of S.L.P.(Crl.)Nos.1308-1312 of 2009];
CRIMINAL APPEAL NO.1601 OF 2014
[Arising out of S.L.P.(Crl.)No.3762 of 2012];
CRIMINAL APPEAL NO. 1602 OF 2014
[Arising out of S.L.P.(Crl.)No.3943 of 2012];
CRIMINAL APPEAL NO.1603 OF 2014
[Arising out of S.L.P.(Crl.)No.3944 of 2012]; AND
CRIMINAL APPEAL NO. 1604 OF 2014
[Arising out of S.L.P.(Crl.)No.59 of 2013].

J U D G M E N T

VIKRAMAJIT SEN, J.

Leave granted in Special Leave Petitions. These Appeals raise a legal
nodus of substantial public importance pertaining to Court’s territorial
jurisdiction concerning criminal complaints filed under Chapter XVII of the
Negotiable Instruments Act, 1881 (for short, ‘the NI Act’). This is amply
adumbrated by the Orders dated 3.11.2009 in I.A.No.1 in CC 15974/2009 of
the three-Judge Bench presided over by the then Hon’ble the Chief Justice
of India, Hon’ble Mr. Justice V.S. Sirpurkar and Hon’ble Mr. Justice P.
Sathasivam which SLP is also concerned with the interpretation of Section
138 of the NI Act, and wherein the Bench after issuing notice on the
petition directed that it be posted before the three-Judge Bench.
PRECEDENTS
The earliest and the most often quoted decision of this Court relevant to
the present conundrum is K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7
SCC 510 wherein a two-Judge Bench has, inter alia, interpreted Section 138
of the NI Act to indicate that, “the offence under Section 138 can be
completed only with the concatenation of a number of acts. Following are
the acts which are components of the said offence: (1) Drawing of the
cheque, (2) Presentation of the cheque to the bank, (3) Returning the
cheque unpaid by the drawee bank, (4) Giving notice in writing to the
drawer of the cheque demanding payment of the cheque amount, (5) Failure of
the drawer to make payment within 15 days of the receipt of the notice.”
The provisions of Sections 177 to 179 of the Code of Criminal Procedure,
1973 (for short, ‘CrPC’) have also been dealt with in detail. Furthermore,
Bhaskaran in terms draws a distinction between ‘giving of notice’ and
‘receiving of notice’. This is for the reason that clause (b) of proviso
to Section 138 of the NI Act postulates a demand being made by the payee or
the holder in due course of the dishonoured cheque by giving a notice in
writing to the drawer thereof. While doing so, the question of the receipt
of the notice has also been cogitated upon.
The issuance and the receipt of the notice is significant because in a
subsequent judgment of a Coordinate Bench, namely, Harman Electronics Pvt.
Ltd. v. National Panasonic India Pvt. Ltd. (2009) 1 SCC 720 emphasis has
been laid on the receipt of the notice, inter alia, holding that the cause
of action cannot arise by any act of omission or commission on the part of
the ‘accused’, which on a holistic reading has to be read as ‘complainant’.
It appears that Harman transacted business out of Chandigarh only, where
the Complainant also maintained an office, although its Head Office was in
Delhi. Harman issued the cheque to the Complainant at Chandigarh; Harman
had its bank account in Chandigarh alone. It is unclear where the
Complainant presented the cheque for encashment but it issued the Section
138 notice from Delhi. In those circumstances, this Court had observed
that the only question for consideration was “whether sending of notice
from Delhi itself would give rise to a cause of action for taking
cognizance under the NI Act.” It then went on to opine that the proviso to
this Section “imposes certain further conditions which are required to be
fulfilled before cognizance of the offence can be taken.” We respectfully
agree with this statement of law and underscore that in criminal
jurisprudence there is a discernibly demarcated difference between the
commission of an offence and its cognizance leading to prosecution. The
Harman approach is significant and sounds a discordant note to the
Bhaskaran ratio. Harman also highlights the reality that Section 138 of
the NI Act is being rampantly misused so far as territorial jurisdiction
for trial of the Complaint is concerned. With the passage of time equities
have therefore transferred from one end of the pendulum to the other. It
is now not uncommon for the Courts to encounter the issuance of a notice in
compliance with clause (b) of the proviso to Section 138 of the NI Act from
a situs which bears no connection with the Accused or with any facet of the
transaction between the parties, leave aside the place where the dishonour
of the cheque has taken place. This is also the position as regards the
presentation of the cheque, dishonour of which is then pleaded as the
territorial platform of the Complaint under Section 138 of the NI Act.
Harman, in fact, duly heeds the absurd and stressful situation, fast
becoming common-place where several cheques signed by the same drawer are
presented for encashment and requisite notices of demand are also
despatched from different places. It appears to us that justifiably so at
that time, the conclusion in Bhaskaran was influenced in large measure by
curial compassion towards the unpaid payee/holder, whereas with the passage
of two decades the manipulative abuse of territorial jurisdiction has
become a recurring and piquant factor. The liberal approach preferred in
Bhaskaran now calls for a stricter interpretation of the statute, precisely
because of its misemployment so far as choice of place of suing is
concerned. These are the circumstances which have propelled us to minutely
consider the decisions rendered by two-Judge Benches of this Court.
It is noteworthy that the interpretation to be imparted to Section 138 of
the NI Act also arose before a three-Judge Bench in Shri Ishar Alloy Steels
Ltd. v. Jayaswals Neco Ltd. (2001) 3 SCC 609 close on the heels of
Bhaskaran. So far as the factual matrix is concerned, the dishonoured
cheque had been presented for encashment by the Complainant/holder in his
bank within the statutory period of six months but by the time it reached
the drawer’s bank the aforementioned period of limitation had expired. The
question before the Court was whether the bank within the postulation of
Section 138 read with Sections 3 and 72 of the NI Act was the drawee bank
or the collecting bank and this Court held that it was the former. It was
observed that “non-presentation of the cheque to the drawee bank within the
period specified in the Section would absolve the person issuing the cheque
of his criminal liability under Section 138 of the NI Act, who otherwise
may be liable to pay the cheque amount to the payee in a civil action
initiated under the law. A combined reading of Sections 3, 72 and 138 of
the NI Act would leave no doubt in our mind that the law mandates the
cheque to be presented at the bank on which it is drawn if the drawer is to
be held criminally liable.” Clearly, and in our considered opinion
rightly, the Section had been rendered ‘accused-centric’. This decision
clarifies that the place where a complainant may present the cheque for
encashment would not confer or create territorial jurisdiction, and in this
respect runs counter to the essence of Bhaskaran which paradoxically, in
our opinion, makes actions of the Complainant an integral nay nuclear
constituent of the crime itself.
The principle of precedence should promptly and precisely be paraphrased.
A co-ordinate Bench is bound to follow the previously published view; it is
certainly competent to add to the precedent to make it logically and
dialectically compelling. However, once a decision of a larger Bench has
been delivered it is that decision which mandatorily has to be applied;
whereas a Co-ordinate Bench, in the event that it finds itself unable to
agree with an existing ratio, is competent to recommend the precedent for
reconsideration by referring the case to the Chief Justice for constitution
of a larger Bench. Indubitably, there are a number of decisions by two-
Judge Benches on Section 138 of the NI Act, the majority of which apply
Bhaskaran without noting or distinguishing on facts Ishar Alloy. In our
opinion, it is imperative for the Court to diligently distill and then
apply the ratio of a decision; and the view of a larger Bench ought not to
be disregarded. Inasmuch as the three-Judge Bench in Ishar Alloy has
categorically stated that for criminal liability to be attracted, the
subject cheque has to be presented to the bank on which it is drawn within
the prescribed period, Bhaskaran has been significantly whittled down if
not overruled. Bhaskaran has also been drastically diluted by Harman
inasmuch as it has given primacy to the service of a notice on the Accused
instead of its mere issuance by the Complainant.
In Prem Chand Vijay Kumar v. Yashpal Singh (2005) 4 SCC 417, another two-
Judge Bench held that upon a notice under Section 138 of the NI Act being
issued, a subsequent presentation of a cheque and its dishonour would not
create another ‘cause of action’ which could set the Section 138 machinery
in motion. In that view, if the period of limitation had run out, a fresh
notice of demand was bereft of any legal efficacy. SIL Import, USA v. Exim
Aides Silk Exporters (1999) 4 SCC 567 was applied in which the
determination was that since the requisite notice had been despatched by
FAX on 26.6.1996 the limitation for filing the Section 138 Complaint
expired on 26.7.1996. What is interesting is the observation that “four
constituents of Section 138 are required to be proved to successfully
prosecute the drawer of an offence under Section 138 of the NI Act”
(emphasis supplied). It is also noteworthy that instead of the five
Bhaskaran concomitants, only four have been spelt out in the subsequent
judgment in Prem Chand. The commission of a crime was distinguished from
its prosecution which, in our considered opinion, is the correct
interpretation of the law. In other words, the four or five concomitants
of the Section have to be in existence for the initiation as well as the
successful prosecution of the offence, which offence however comes into
existence as soon as subject cheque is dishonoured by the drawee bank.
Another two-Judge Bench in Shamshad Begum v. B. Mohammed (2008) 13 SCC 77
speaking through Pasayat J this time around applied Bhaskaran and concluded
that since the Section 138 notice was issued from and replied to Mangalore,
Courts in that city possessed territorial jurisdiction. As already noted
above, this view is not reconcilable with the later decision of Harman.
The two-Judge Bench decision in Mosaraf Hossain Khan v. Bhagheeratha Engg.
Ltd. (2006) 3 SCC 658 requires to be discussed in some detail. A Complaint
under Section 138 of the NI Act was filed and cognizance was taken by the
Chief Judicial Magistrate, Birbhum at Suri, West Bengal for the dishonour
of a number of cheques issued by the accused-company which had its
headquarters in Ernakulam, Kerala where significantly the accused-company’s
bank on whom the dishonoured cheques had been drawn was located. Several
judgments were referred to, but not Bhaskaran. The third ingredient in
Bhaskaran, i.e. the returning of the cheque unpaid by the drawee bank, was
not reflected upon. Inasmuch as Mosaraf Hossain refers copiously to the
cause of action having arisen in West Bengal without adverting at all to
Bhaskaran, leave aside the three-Judge Bench decision in Ishar Alloy, the
decision may be seen as per incuriam. Moreover, the concept of forum non
conveniens has no role to play under Section 138 of the NI Act, and
furthermore that it can certainly be contended by the accused-company that
it was justifiable/convenient for it to initiate litigation in Ernakulam.
If Bhaskaran was followed, Courts in Ernakulam unquestionably possessed
territorial jurisdiction. It is, however, important to italicize that
there was an unequivocal endorsement of the Bench of a previously expressed
view that, “where the territorial jurisdiction is concerned the main factor
to be considered is the place where the alleged offence was committed”. In
similar vein, this Court has opined in Om Hemrajani v. State of U.P. (2005)
1 SCC 617, in the context of Sections 177 to 180 CrPC that “for
jurisdiction emphasis is on the place where the offence is committed.”
The territorial jurisdiction conundrum which, candidly is currently in the
cauldron owing to varying if not conflicting ratios, has been cogitated
upon very recently by a two-Judge Bench in Criminal Appeal No.808 of 2013
titled Nishant Aggarwal v. Kailash Kumar Sharma decided on 1.7.2013 and
again by the same Bench in Criminal Appeal No.1457 of 2013 titled Escorts
Limited v. Rama Mukherjee decided on 17.09.2013. Bhaskaran was followed
and Ishar Alloy and Harman were explained. In Nishant the Appellant issued
a post-dated cheque drawn on Standard Chartered Bank, Guwahati in favour of
complainant-respondent. It appears that the Appellant had endeavoured to
create a case or rather a defence by reporting to his bank in Guwahati as
well as to the local police station that ‘one cheque (corresponding to the
cheque in question) was missing and hence payment should be stopped.’ The
Respondent-drawer was a resident of District Bhiwani, Haryana; he presented
the cheque for encashment at Canara Bank, Bhiwani but it was returned
unpaid. The holder then issued a legal notice which failed to elicit the
demanded sum of money corresponding to the cheque value, and thereupon
followed it by the filing of a criminal complaint under Sections 138 and
141 of the NI Act at Bhiwani. The Judicial Magistrate, Bhiwani, vide order
dated 5.3.2011, concluded that the court in Bhiwani did not possess
territorial jurisdiction and he accordingly returned the complaint for
presentation before the proper Court. The five concomitants of Section 138
extracted in Bhaskaran, were reiterated and various paragraphs from it were
reproduced by this Court. Nishant also did not follow Ishar Alloy which,
as already analysed, has concluded that the second Bhaskaran concomitant,
namely, presentation of cheque to the bank refers to the drawee bank and
not the holder’s bank, is not primarily relevant for the determination of
territorial jurisdiction. Nishant distinguished Ishar Alloy on the
predication that the question of territorial jurisdiction had not been
raised in that case. It is axiomatic that when a Court interprets any
statutory provision, its opinion must apply to and be determinate in all
factual and legal permutations and situations. We think that the dictum in
Ishar Alloy is very relevant and conclusive to the discussion in hand. It
also justifies emphasis that Ishar Alloy is the only case before us which
was decided by a three-Judge Bench and, therefore, was binding on all
smaller Benches. We ingeminate that it is the drawee Bank and not the
Complainant’s Bank which is postulated in the so-called second constituent
of Section 138 of the NI Act, and it is this postulate that spurs us
towards the conclusion that we have arrived at in the present Appeals.
There is also a discussion of Harman to reiterate that the offence under
Section 138 is complete only when the five factors are present. It is our
considered view, which we shall expound upon, that the offence in the
contemplation of Section 138 of the NI Act is the dishonour of the cheque
alone, and it is the concatenation of the five concomitants of that Section
that enable the prosecution of the offence in contradistinction to the
completion/commission of the offence.
We have also painstakingly perused Escorts Limited which was also decided
by the Nishant two-Judge Bench. Previous decisions were considered,
eventually leading to the conclusion that since the concerned cheque had
been presented for encashment at New Delhi, its Metropolitan Magistrate
possessed territorial jurisdiction to entertain and decide the subject
Complaint under Section 138 of the NI Act. Importantly, in a subsequent
order, in FIL Industries Ltd. v. Imtiyaz Ahmed Bhat passed on 12th August
2013, it was decided that the place from where the statutory notice had
emanated would not of its own have the consequence of vesting jurisdiction
upon that place. Accordingly, it bears repetition that the ratio in
Bhaskaran has been drastically diluted in that the situs of the notice, one
of the so-called five ingredients of Section 138, has now been held not to
clothe that Court with territorial competency. The conflicting or
incongruent opinions need to be resolved.

JUDICIAL APPROACH ON JURISDICTION
We shall take a short digression in terms of brief discussion of the
approach preferred by this Court in the context of Section 20 of the Code
of Civil Procedure, 1908 (hereinafter referred to as, ‘CPC’), which inter
alia, enjoins that a suit must be instituted in a court within the local
limits of whose jurisdiction the Defendant actually and voluntarily
resides, or carries on business, or personally works for gain, or where the
cause of action wholly or in part arises. The Explanation to that Section
is important; it prescribes that a corporation shall be deemed to carry on
business at its sole or principal office, or, in respect of any cause of
action arising at any place where it has also a subordinate office, at such
place. Since this provision primarily keeps the Defendant in perspective,
the corporation spoken of in the Explanation, obviously refers to the
Defendant. A plain reading of Section 20 of the CPC arguably allows the
Plaintiff a multitude of choices in regard to where it may institute its
lis, suit or action. Corporations and partnership firms, and even sole
proprietorship concerns, could well be transacting business simultaneously
in several cities. If sub-sections (a) and (b) of Section 20 are to be
interpreted disjunctively from sub-section (c), as the use of the word ‘or’
appears to permit the Plaintiff to file the suit at any of the places where
the cause of action may have arisen regardless of whether the Defendant has
even a subordinate office at that place. However, if the Defendants’
location is to form the fulcrum of jurisdiction, and it has an office also
at the place where the cause of action has occurred, it has been held that
the Plaintiff is precluded from instituting the suit anywhere else.
Obviously, this is also because every other place would constitute a forum
non conveniens. This Court has harmonised the various hues of the
conundrum of the place of suing in several cases and has gone to the extent
of laying down that it should be courts endeavour to locate the place where
the cause of action has substantially arisen and reject others where it may
have incidentally arisen. Patel Roadways Limited, Bombay v. Prasad Trading
Company, AIR 1992 SC 1514 = (1991) 4 SCC 270 prescribes that if the
Defendant-corporation has a subordinate office in the place where the cause
of action arises, litigation must be instituted at that place alone,
regardless of the amplitude of options postulated in Section 20 of the CPC.
We need not dilate on this point beyond making a reference to ONGC v.
Utpal Kumar Basu (1994) 4 SCC 711 and South East Asia Shipping Co. Ltd. v.
Nav Bharat Enterprises Pvt. Ltd. (1996) 3 SCC 443.
We are alive to the possible incongruities that are fraught in
extrapolating decisions relating to civil law onto criminal law, which
includes importing the civil law concept of “cause of action” to criminal
law which essentially envisages the place where a crime has been committed
empowers the Court at that place with jurisdiction. In Navinchandra N.
Majithia v. State of Maharashtra (2000) 7 SCC 640 this Court had to
consider the powers of High Courts under Article 226(2) of the Constitution
of India. Noting the presence of the phrase “cause of action” therein it
was clarified that since some events central to the investigation of the
alleged crime asseverated in the Complaint had taken place in Mumbai and
especially because the fundamental grievance was the falsity of the
Complaint filed in Shillong, the writ jurisdiction of the Bombay High Court
was unquestionably available. The infusion of the concept of ‘cause of
action’ into the criminal dispensation has led to subsequent confusion
countenanced in High Courts. It seems to us that Bhaskaran allows multiple
venues to the Complainant which runs counter to this Court’s preference for
simplifying the law. Courts are enjoined to interpret the law so as to
eradicate ambiguity or nebulousness, and to ensure that legal proceedings
are not used as a device for harassment, even of an apparent transgressor
of the law. Law’s endeavour is to bring the culprit to book and to provide
succour for the aggrieved party but not to harass the former through
vexatious proceedings. Therefore, precision and exactitude are necessary
especially where the location of a litigation is concerned.

RELEVANT PROVISIONS
The provisions which will have to be examined and analysed are reproduced
for facility of reference :

1 Negotiable Instruments Act, 1881

2

“138. Dishonour of cheque for insufficiency, etc., of funds in the account.-
Where any cheque drawn by a person on an account maintained by him with a
banker for payment of any amount of money to another person from out of
that account for the discharge, in whole or in part, of any debt or other
liability, is returned by the bank unpaid, either because of the amount of
money standing to the credit of that account is insufficient to honour the
cheque or that it exceeds the amount arranged to be paid from that account
by an agreement made with that bank, such person shall be deemed to have
committed an offence and shall, without prejudice to any other provisions
of this Act, be punished with imprisonment for a term which may be extended
to two years, or with fine which may extend to twice the amount of the
cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six months
from the date on which it is drawn or within the period of its validity,
whichever is earlier.

(b) the payee or the holder in due course of the cheque, as the case may
be, makes a demand for the payment of the said amount of money by giving a
notice in writing, to the drawer of the cheque, within thirty days of the
receipt of information by him from the bank regarding the return of the
cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount
of money to the payee or, as the case may be, to the holder in due course
of the cheque, within fifteen days of the receipt of the said notice.

Explanation. For the purposes of this section, “debt or other liability”
means a legally enforceable debt or other liability.

142. Cognizance of offences.-Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974)-
(a) no court shall take cognizance of any offence punishable under section
138 except upon a complaint, in writing, made by the payee or, as the case
may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause
of action arises under clause (c) of the proviso to section 138;

Provided that the cognizance of a complaint may be taken by the Court
after the prescribed period, if the complainant satisfies the Court that he
had sufficient cause for not making a complaint within such period.

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any offence punishable under
section 138.”

Code of Criminal Procedure, 1973

“177. Ordinary place of inquiry and trial.- Every offence shall ordinarily
be inquired into and tried by a Court within whose local jurisdiction it
was committed.

178. Place of inquiry or trial.- (a) When it is uncertain in which of
several local areas an offence was committed, or
(b) where an offence is committed partly in one local area and partly in
another, or
(c) where an offence is a continuing one, and continues to be committed in
more local areas than one, or
(d) where it consists of several acts done in different local areas,
it may be inquired into or tried by a Court having jurisdiction over any of
such local areas.

179. Offence triable where act is done or consequence ensues.- When an act
is an offence by reason of anything which has been done and of a
consequence which has ensued, the offence may be inquired into or tried by
a Court within whose local jurisdiction such thing has been done or such
consequence has ensued.”

PARLIAMENTARY DEBATES
The XVIIth fasciculus of the Negotiable Instruments Act containing Sections
138 to 142 was introduced into the statute in 1988. The avowed intendment
of the amendment was to enhance the acceptability of cheques. It was based
on the Report of the Committee on Banking Laws by Dr. Rajamannar, submitted
in 1975, which suggested, inter alia, penalizing the issuance of cheque
without sufficient funds. The Minister of Finance had assuaged
apprehensions by arguing that safeguards for honest persons had been
incorporated in the provisions, viz., (i) the cheque should have been
issued in discharge of liability; (ii) the cheque should be presented
within its validity period; (iii) a Notice had to be sent by the Payee
demanding payment within 15 days of receiving notice of dishonour; (iv) the
drawer was allowed to make payment within 15 days from the date of receipt
of notice; (v) Complaint was to be made within one month of the cause of
action arising; (vi) no Court inferior to that of MM or JMFC was to try the
offence. The Finance Minister had also stated that the Court had
discretion whether the Drawer would be imprisoned or/and fined.
Detractors, however, pointed out that the IPC already envisioned criminal
liability for cheque-bouncing where dishonest or fraudulent intention or
mens rea on part of the Drawer was evident, namely, cheating, fraud,
criminal breach of trust etc. Therefore, there was no justification to
make the dishonour of cheques a criminal offence, ignoring factors like
illiteracy, indispensable necessities, honest/innocent mistake, bank
frauds, bona fide belief, and/or unexpected attachment or freezing of
account in any judicial proceedings as it would bring even honest persons
within the ambit of Section 138 NI Act. The possibility of abusing the
provision as a tool of harassment could also not be ruled out. Critics
also decried the punishment for being harsh; that civil liability can never
be converted into criminal liability; that singling out cheques out of all
other negotiable instruments would be violative of Article 14 of
Constitution of India. Critics contended that there was insufficient
empirical enquiry into statutes or legislation in foreign jurisdictions
criminalizing the dishonour of cheques and statistics had not been made
available bearing out that criminalization would increase the acceptability
of cheque. The Minister of Finance was not entirely forthright when he
stated in Parliament that the drawer was also allowed sufficient
opportunity to say whether the dishonour was by mistake. It must be borne
in mind that in the U.K. deception and dishonesty are key elements which
require to be proved. In the USA, some States have their own laws,
requiring fraudulent intent or knowledge of insufficient funds to be made
good. France has criminalized and subsequently decriminalized the dishonour
except in limited circumstances. Instead, it provides for disqualification
from issuing cheques, a practice which had been adopted in Italy and Spain
also. We have undertaken this succinct study mindful of the fact that
Parliamentary debates have a limited part to play in interpretation of
statutes, the presumption being that Legislators have the experience,
expertise and language skills to draft laws which unambiguously convey
their intentions and expectations for the enactments. What is palpably
clear is that Parliament was aware that they were converting civil
liability into criminal content inter alia by the deeming fiction of
culpability in terms of the pandect comprising Section 138 and the
succeeding Sections, which severely curtail defences to prosecution.
Parliament was also aware that the offence of cheating etc., already
envisaged in the IPC, continued to be available.

CIVIL LAW CONCEPTS NOT STRICTLY APPLICABLE
We have already cautioned against the extrapolation of civil law concepts
such as “cause of action” onto criminal law. Section 177 of the CrPC
unambiguously states that every offence shall ordinarily be inquired into
and tried by a Court within whose local jurisdiction it was committed.
“Offence”, by virtue of the definition ascribed to the word by Section 2(n)
of the CrPC means any act or omission made punishable by any law. Halsbury
states that the venue for the trial of a crime is confined to the place of
its occurrence. Blackstone opines that crime is local and jurisdiction
over it vests in the Court and Country where the crime is committed. This
is obviously the raison d’etre for the CrPC making a departure from the CPC
in not making the “cause of action” routinely relevant for the
determination of territoriality of criminal courts. The word “action” has
traditionally been understood to be synonymous to “suit”, or as ordinary
proceedings in a Court of justice for enforcement or protection of the
rights of the initiator of the proceedings. “Action, generally means a
litigation in a civil Court for the recovery of individual right or redress
of individual wrong, inclusive, in its proper legal sense, of suits by the
Crown” – [Bradlaugh v. Clarke 8 Appeal Cases 354 p.361]. Unlike civil
actions, where the Plaintiff has the burden of filing and proving its case,
the responsibility of investigating a crime, marshalling evidence and
witnesses, rests with the State. Therefore, while the convenience of the
Defendant in a civil action may be relevant, the convenience of the so
called complainant/victim has little or no role to play in criminal
prosecution. Keeping in perspective the presence of the word “ordinarily”
in Section 177 of CrPC, we hasten to adumbrate that the exceptions to it
are contained in the CrPC itself, that is, in the contents of the
succeeding Section 178. The CrPC also contains an explication of
“complaint” as any allegation to a Magistrate with a view to his taking
action in respect of the commission of an offence; not being a police
report. Prosecution ensues from a Complaint or police report for the
purpose of determining the culpability of a person accused of the
commission of a crime; and unlike a civil action or suit is carried out (or
‘prosecuted’) by the State or its nominated agency. The principal
definition of “prosecution” imparted by Black’s Law Dictionary 5th Edition
is “a criminal action; the proceeding instituted and carried on by due
process of law, before a competent Tribunal, for the purpose of determining
the guilt or innocence of a person charged with crime.” These reflections
are necessary because Section 142(b) of the NI Act contains the words, “the
cause of action arises under the proviso to Section 138”, resulting
arguably, but in our opinion irrelevantly, to the blind borrowing of
essentially civil law attributes onto criminal proceedings. We reiterate
that Section 178 admits of no debate that in criminal prosecution, the
concept of “cause of action”, being the bundle of facts required to be
proved in a suit and accordingly also being relevant for the place of
suing, is not pertinent or germane for determining territorial jurisdiction
of criminal Trials. Section 178, CrPC explicitly states that every offence
shall ordinarily be inquired into and tried by a Court within whose local
jurisdiction it was committed. Section 179 is of similar tenor. We are
also unable to locate any provision of the NI Act which indicates or
enumerates the extraordinary circumstances which would justify a departure
from the stipulation that the place where the offence is committed is where
the prosecution has to be conducted. In fact, since cognizance of the
offence is subject to the five Bhaskaran components or concomitants the
concatenation of which ripens the already committed offence under Section
138 NI Act into a prosecutable offence, the employment of the phrase “cause
of action” in Section 142 of the NI Act is apposite for taking cognizance,
but inappropriate and irrelevant for determining commission of the subject
offence. There are myriad examples of the commission of a crime the
prosecution of which is dependent on extraneous contingencies such as
obtainment of sanction for prosecution under Section 19 of the Prevention
of Corruption Act 1988. Similar situation is statutorily created by
Section 19 of the Environmental Protection Act 1986, Section 11 of the
Central Sales Tax Act 1956, Section 279 of the Income Tax Act, Sections 132
and 308, CrPC, Section 137 of the Customs Act etc. It would be idle to
contend that the offence comes into existence only on the grant of
permission for prosecution, or that this permission constitutes an integral
part of the offence itself. It would also be futile to argue that the
place where the permission is granted would provide the venue for the
trial. If sanction is not granted the offence does not vanish. Equally,
if sanction is granted from a place other than where the crime is
committed, it is the latter which will remain the place for its
prosecution.

SECTION 138 NI ACT
The marginal note of Section 138 of the NI Act explicitly defines the
offence as being the dishonour of cheques for insufficiency, etc., of funds
in the account. Of course, the headings, captions or opening words of a
piece of legislation are normally not strictly or comprehensively
determinative of the sweep of the actual Section itself, but it does
presage its intendment. See: Frick India Ltd. v. Union of India (1990) 1
SCC 400 and Forage & Co. v. Municipal Corporation of Greater Bombay (1999)
8 SCC 577. Accordingly, unless the provisions of the Section clearly point
to the contrary, the offence is concerned with the dishonour of a cheque;
and in the conundrum before us the body of this provision speaks in the
same timbre since it refers to a cheque being “returned by the bank
unpaid”. None of the provisions of the IPC have been rendered nugatory by
Section 138 of the NI Act and both operate on their own. It is trite that
mens rea is the quintessential of every crime. The objective of Parliament
was to strengthen the use of cheques, distinct from other negotiable
instruments, as mercantile tender and therefore it became essential for the
Section 138 NI Act offence to be freed from the requirement of proving mens
rea. This has been achieved by deeming the commission of an offence de
hors mens rea not only under Section 138 but also by virtue of the
succeeding two Sections. Section 139 carves out the presumption that the
holder of a cheque has received it for the discharge of any liability.
Section 140 clarifies that it will not be available as a defence to the
drawer that he had no reason to believe, when he issued the cheque, that it
would be dishonoured. Section 138 unequivocally states that the offence is
committed no sooner the drawee bank returns the cheque unpaid.
Section 138 NI Act is structured in two parts – the primary and the
provisory. It must be kept in mind that the Legislature does not ordain
with one hand and immediately negate it with the other. The proviso often
carves out a minor detraction or diminution of the main provision of which
it is an appendix or addendum or auxiliary. Black Law Dictionary states in
the context of a proviso that it is – “a limitation or exception to a grant
made or authority conferred, the effect of which is to declare that the one
shall not operate, or the other be exercised, unless in the case provided.
…. A clause or part of a clause in a statute, the office of which is either
to except something from the enacting clause, or to qualify or restrain its
generality, or to exclude some possible ground of misinterpretation of its
extent.” It should also be kept in perspective that a proviso or a
condition are synonymous. In our perception in the case in hand the
contents of the proviso place conditions on the operation of the main
provision, while it does form a constituent of the crime itself, it
modulates or regulates the crime in circumstances where, unless its
provisions are complied with, the already committed crime remains
impervious to prosecution. The proviso to Section 138 of the NI Act
features three factors which are additionally required for prosecution to
be successful. In this aspect Section 142 correctly employs the term
“cause of action” as compliance with the three factors contained in the
proviso are essential for the cognizance of the offence, even though they
are not part of the action constituting the crime. To this extent we
respectfully concur with Bhaskaran in that the concatenation of all these
concomitants, constituents or ingredients of Section 138 NI Act, is
essential for the successful initiation or launch of the prosecution. We,
however, are of the view that so far as the offence itself the proviso has
no role to play. Accordingly a reading of Section 138 NI Act in
conjunction with Section 177, CrPC leaves no manner of doubt that the
return of the cheque by the drawee bank alone constitutes the commission of
the offence and indicates the place where the offence is committed.
In this analysis we hold that the place, situs or venue of judicial inquiry
and trial of the offence must logically be restricted to where the drawee
bank, is located. The law should not be warped for commercial exigencies.
As it is Section 138 of the NI Act has introduced a deeming fiction of
culpability, even though, Section 420 is still available in case the payee
finds it advantageous or convenient to proceed under that provision. An
interpretation should not be imparted to Section 138 which will render it
as a device of harassment i.e. by sending notices from a place which has no
casual connection with the transaction itself, and/or by presenting the
cheque(s) at any of the banks where the payee may have an account. In our
discernment, it is also now manifest that traders and businessmen have
become reckless and incautious in extending credit where they would
heretofore have been extremely hesitant, solely because of the availability
of redress by way of criminal proceedings. It is always open to the
creditor to insist that the cheques in question be made payable at a place
of the creditor’s convenience. Today’s reality is that the every
Magistracy is inundated with prosecutions under Section 138 NI Act, so much
so that the burden is becoming unbearable and detrimental to the disposal
of other equally pressing litigation. We think that Courts are not
required to twist the law to give relief to incautious or impetuous
persons; beyond Section 138 of the NI Act.
We feel compelled to reiterate our empathy with a payee who has been duped
or deluded by a swindler into accepting a cheque as consideration for
delivery of any of his property; or because of the receipt of a cheque has
induced the payee to omit to do anything resulting in some damage to the
payee. The relief introduced by Section 138 of the NI Act is in addition
to the contemplations in the IPC. It is still open to such a payee
recipient of a dishonoured cheque to lodge a First Information Report with
the Police or file a Complaint directly before the concerned Magistrate.
If the payee succeeds in establishing that the inducement for accepting a
cheque which subsequently bounced had occurred where he resides or
ordinarily transacts business, he will not have to suffer the travails of
journeying to the place where the cheque has been dishonoured. All
remedies under the IPC and CrPC are available to such a payee if he chooses
to pursue this course of action, rather than a Complaint under Section 138
of the NI Act. And of course, he can always file a suit for recovery
wherever the cause of action arises dependent on his choosing.
The interpretation of Section 138 of the NI Act which commends itself to us
is that the offence contemplated therein stands committed on the dishonour
of the cheque, and accordingly the JMFC at the place where this occurs is
ordinarily where the Complaint must be filed, entertained and tried. The
cognizance of the crime by the JMFC at that place however, can be taken
only when the concomitants or constituents contemplated by the Section
concatenate with each other. We clarify that the place of the issuance or
delivery of the statutory notice or where the Complainant chooses to
present the cheque for encashment by his bank are not relevant for purposes
of territorial jurisdiction of the Complaints even though non-compliance
thereof will inexorably lead to the dismissal of the complaint. It cannot
be contested that considerable confusion prevails on the interpretation of
Section 138 in particular and Chapter XVII in general of the NI Act. The
vindication of this view is duly manifested by the decisions and conclusion
arrived at by the High Courts even in the few cases that we shall decide by
this Judgment. We clarify that the Complainant is statutorily bound to
comply with Section 177 etc. of the CrPC and therefore the place or situs
where the Section 138 Complaint is to be filed is not of his choosing. The
territorial jurisdiction is restricted to the Court within whose local
jurisdiction the offence was committed, which in the present context is
where the cheque is dishonoured by the bank on which it is drawn.
We are quite alive to the magnitude of the impact that the present decision
shall have to possibly lakhs of cases pending in various Courts spanning
across the country. One approach could be to declare that this judgment
will have only prospective pertinence, i.e. applicability to Complaints
that may be filed after this pronouncement. However, keeping in
perspective the hardship that this will continue to bear on alleged
accused/respondents who may have to travel long distances in conducting
their defence, and also mindful of the legal implications of proceedings
being permitted to continue in a Court devoid of jurisdiction, this
recourse in entirety does not commend itself to us. Consequent on
considerable consideration we think it expedient to direct that only those
cases where, post the summoning and appearance of the alleged Accused, the
recording of evidence has commenced as envisaged in Section 145(2) of the
Negotiable Instruments Act, 1881, will proceeding continue at that place.
To clarify, regardless of whether evidence has been led before the
Magistrate at the pre-summoning stage, either by affidavit or by oral
statement, the Complaint will be maintainable only at the place where the
cheque stands dishonoured. To obviate and eradicate any legal
complications, the category of Complaint cases where proceedings have gone
to the stage of Section 145(2) or beyond shall be deemed to have been
transferred by us from the Court ordinarily possessing territorial
jurisdiction, as now clarified, to the Court where it is presently pending.
All other Complaints (obviously including those where the
accused/respondent has not been properly served) shall be returned to the
Complainant for filing in the proper Court, in consonance with our
exposition of the law. If such Complaints are filed/refiled within thirty
days of their return, they shall be deemed to have been filed within the
time prescribed by law, unless the initial or prior filing was itself time
barred.

DISPOSAL OF PRESENT APPEALS
Crl. Appeal No.2287 of 2009
21. A learned Single Judge of the High Court of Judicature at Bombay,
Nagpur Bench has, pursuant to a threadbare discussion of Bhaskaran
concluded that since the concerned cheque was drawn on the Bank of India,
Bhandara Branch, Maharashtra where it was dishonoured, the Judicial
Magistrate First Class, Digras, District Yavatmal had no jurisdiction to
entertain the Complaint. It is pertinent to note that the subject cheque
was presented at Digras, District Yavatmal where the Complainant had a bank
account although he was a resident of District Washim, Maharashtra. The
learned Single Judge, in the impugned judgment, had rightly rejected the
argument that the Complaint itself should be dismissed; instead he ordered
that it be returned to the complainant for filing in the appropriate Court.

The Appeal is accordingly dismissed.
Crl. Appeal No. 1593 of 2014
[Arising out of S.L.P.(Crl.)No.2077 of 2009
22. In this Appeal the Respondent-accused, having purchased electronic
items from the Appellant-company, issued the cheque in question drawn on
UCO Bank, Tangi, Orissa which was presented by the Complainant-company at
State Bank of India, Ahmednagar Branch, Maharashtra as its branch office
was located at Ahmednagar. The cheque was dishonoured by UCO Bank, Tangi,
Orissa. A Complaint was filed before JMFC, Ahmednagar. An application was
filed by the Respondent-accused under Section 177 CrPC questioning the
jurisdiction of the JMFC Ahmednagar, who held that since the demand notice
was issued from and the payment was claimed at Ahmednagar, he possessed
jurisdiction to try the Complaint. The High Court disagreed with the
conclusion of the JMFC, Ahmednagar that the receipt of notice and non-
payment of the demanded amount are factors which will have prominence over
the place wherefrom the notice of demand was issued and held that JMFC,
Ahmednagar did not have the territorial jurisdiction to entertain the
Complaint. In view of the foregoing discussion on the issue above, the
place where the concerned cheque had been dishonoured, which in the case in
hand was Tangi, Orissa, the Appeal is allowed with the direction that the
Complaint be returned to the Complainant for further action in accordance
with law.

Crl. Appeal Nos. 1594, 1595 & 1601 to 1603 of 2014
[Arising out of S.L.P.(Crl.)Nos.2112 of 2009 and 2117 of 2009;
3762 of 2012; 3943 of 2012; 3944 of 2012]

23. The facts being identical to Criminal Appeal arising out of
S.L.P.(Crl.)No.2077 of 2009, these Appeals stand dismissed.

Crl. Appeal Nos.1596-1600 of 2014
[Arising out of S.L.P.(Crl.)Nos.1308-1312 of 2009]
24. The Appellant-complainant herein has its Registered Office in Delhi
from where the Respondents-accused are also carrying on their business.
The cheques in question were issued by the Respondent No.2-accused drawn on
Indian Overseas Bank, Connaught Place, New Delhi. However, the same were
presented and dishonoured at Nagpur, Maharashtra where the Complainant
states it also has an office. There is no clarification why the cheques had
not been presented in Delhi where the Complainant had its Registered
Office, a choice which we think is capricious and perfidious, intended to
cause harassment. Upon cheques having been dishonoured by the concerned
bank at Delhi, five Complaints were filed before Judicial Magistrate First
Class, Nagpur who heard the Complaints, and also recorded the evidence led
by both the parties. However, the JMFC, Nagpur acquitted the Respondent
No.2-accused on the ground of not having territorial jurisdiction. On
appeals being filed before the High Court of Bombay, the judgment of the
JMFC, Nagpur was partly set aside so far as the acquittal of the Respondent
No.2-accused was concerned and it was ordered that the Complaints be
returned for filing before the proper Court. In view of the conclusion
arrived at by us above, these Appeals are also dismissed.

Crl. Appeal No. 1604 of 2014
[Arising out of S.L.P.(Crl.)No.59 of 2013]
25. The cheque in question was drawn by the Respondent-accused on State
Bank of Travancore, Delhi. However, it was presented by the Appellant-
complainant at Aurangabad. A Complaint was filed before JMFC, Aurangabad
who issued process. Respondent-accused filed an application under Section
203 of CrPC seeking dismissal of the Complaint. The application was
dismissed on the predication that once process had been initiated, the
Complaint could not be dismissed. On a writ petition being filed before
the High Court of Bombay, Aurangabad Bench, the order of issuance of
process was set aside and the Complaint was ordered to be returned for
being presented before a competent court having jurisdiction to entertain
the same. The High Court had correctly noted that the objection pertained
to the territorial jurisdiction of the JMFC, Aurangabad, a feature which
had not been comprehensively grasped by the latter. The High Court noted
that the Registered Office of the Complainant was at Chitegaon, Tehsil
Paithan, District Aurangabad whereas the Accused was transacting business
from Delhi. The High Court pithily underscored that in paragraph 4 of the
Complaint it had been specifically contended that credit facility was given
to the Accused in Delhi, where the Complainant-company also had its branch
office. The statutory notice had also emanated from Aurangabad, and it had
been demanded that payment should be made in that city within the specified
time. It was also the Complainant’s case that the Invoice, in case of
disputes, restricted jurisdiction to Aurangabad courts; that intimation of
the bouncing of the cheques was received at Aurangabad. It is however
necessary to underscore that the Accused had clarified that the subject
transaction took place at Delhi where the goods were supplied and the
offending cheque was handed over to the Complainant. It appears that a
Civil Suit in respect of the recovery of the cheque amount has already been
filed in Delhi. We may immediately reiterate that the principles
pertaining to the cause of action as perceived in civil law are not
relevant in criminal prosecution. Whilst the clause restricting
jurisdiction to courts at Aurangabad may have efficacy for civil
proceedings, provided any part of the cause of action had arisen in
Aurangabad, it has no bearing on the situs in criminal prosecutions. Since
a Civil Suit is pending, we hasten to clarify that we are not expressing
any opinion on the question of whether the courts at Delhi enjoy
jurisdiction to try the Suit for recovery. In the impugned judgment, the
High Court duly noted Bhaskaran and Harman. However, it committed an
error in analyzing the cause of action as well as the covenant restricting
jurisdiction to Aurangabad as these are relevant only for civil disputes.
However, the impugned judgment is beyond interference inasmuch as it
concludes that the JMFC, Aurangabad has no jurisdiction over the offence
described in the Complaint. The Appeal is accordingly dismissed.

……………………………………………….J.
[T.S. THAKUR]

……………………………………………….J.
[VIKRAMAJIT SEN]

………………………………………………J.
[C. NAGAPPAN]
New Delhi
August 1, 2014.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2287 OF 2009

DASHRATH RUPSINGH RATHOD …Appellant
Versus
STATE OF MAHARASHTRA & ANR. …Respondents
WITH
CRIMINAL APPEAL NO. 1593 OF 2014
(Arising out of S.L.P. (Crl.) No.2077 of 2009)
CRIMINAL APPEAL NO. 1594 OF 2014
(Arising out of S.L.P. (Crl.) No.2112 of 2009)
CRIMINAL APPEAL NO. 1595 OF 2014
(Arising out of S.L.P. (Crl.) No.2117 of 2009)
CRIMINAL APPEAL NO. 1596-1600 OF 2014
(Arising out of S.L.P. (Crl.) Nos.1308-1312 of 2009)
CRIMINAL APPEAL NO. 1601 OF 2014
(Arising out of S.L.P. (Crl.) No.3762 of 2012)
CRIMINAL APPEAL NO. 1602 OF 2014
(Arising out of S.L.P. (Crl.) No.3943 of 2012)
CRIMINAL APPEAL NO. 1603 OF 2014
(Arising out of S.L.P. (Crl.) No.3944 of 2012)
AND
CRIMINAL APPEAL NO. 1604 OF 2014
(Arising out of S.L.P. (Crl.) No.59 of 2013)

J U D G M E N T

T.S. Thakur, J.
1. I have had the advantage of going through the draft order proposed by
my esteemed brother Vikramajit Sen, J. I entirely agree with the
conclusions which my erudite brother has drawn based on a remarkably
articulate process of reasoning that illumines the draft judgment authored
by him. I would all the same like to add a few lines of my own not because
the order as proposed leaves any rough edges to be ironed out but only
because the question of law that arises for determination is not only
substantial but of considerable interest and importance for the commercial
world. The fact that the view being taken by us strikes a discordant note
on certain aspects which have for long been considered settled by earlier
decisions of this Court being only an additional reason for the
modest addition that I propose to make. Of these decisions
Bhaskaran’s case stands out as the earliest in which this Court
examined the vexed question of territorial jurisdiction of the Courts to
try offences punishable under Section 138 of the Negotiable Instruments
Act, 1881 (hereinafter called “NI Act”). Bhaskaran’s case was heard by a
two-judge Bench of this Court who took the view that the jurisdiction to
try an offence under Section 138 could not be determined only by reference
to the place where the cheque was dishonoured. That is because dishonour of
the cheque was not by itself an offence under Section 138 of The Negotiable
Instruments Act, 1881, observed the Court. The offence is complete only
when the drawer fails to pay the cheque amount within the period of fifteen
days stipulated under clause (c) of the proviso to Section 138 of the Act.
Having said that the Court recognised the difficulty in fixing a place
where such failure could be said to have taken place. It could, said the
Court, be the place where the drawer resides or the place where the payee
resides or the place where either of them carries on business. To resolve
this uncertainty the Court turned to Sections 178 and 179 of the Cr.P.C. to
hold that since an offence under Section 138 can be completed only with the
concatenation of five acts that constituted the components of the offence
any Court within whose jurisdiction any one of those acts was committed
would have the jurisdiction to try the offence. The Court held:
“The offence under Section 138 of the Act can be completed only with the
concatenation of a number of acts. The following are the acts which are
components of the said offence: (1) drawing of the cheque, (2) presentation
of the cheque to the bank, (3) returning the cheque unpaid by the drawee
bank, (4) giving notice in writing to the drawer of the cheque demanding
payment of the cheque amount, (5) failure of the drawer to make payment
within 15 days of the receipt of the notice.

It is not necessary that all the above five acts should have been
perpetrated at the same locality. It is possible that each of those five
acts could be done at five different localities. But a concatenation of all
the above five is a sine qua non for the completion of the offence under
Section 138 of the Code. In this context a reference to Section 178(d) of
the Code is useful. It is extracted below:

“178. (a)-(c) * * *
(d) where the offence consists of several acts done in different local
areas, it may be enquired into or tried by a court having jurisdiction over
any of such local areas.”

Thus it is clear, if the five different acts were done in five different
localities any one of the courts exercising jurisdiction in one of the five
local areas can become the place of trial for the offence under Section 138
of the Act. In other words, the complainant can choose any one of those
courts having jurisdiction over any one of the local areas within the
territorial limits of which any one of those five acts was done. As the
amplitude stands so widened and so expansive it is an idle exercise to
raise jurisdictional question regarding the offence under Section 138 of
the Act.”

2. Bhaskaran held the field for two years. The first blow to the view
taken by this Court in Bhaskaran’s case was dealt by a three-Judge Bench
decision in Shri Ishar Alloy Steels Ltd. v. Jayaswals Neco Ltd. (2001) 3
SCC 609. The question that arose in that case was whether the limitation of
six months for presentation of a cheque for encashment was applicable viz-a-
viz presentation to the bank of the payee or that of the drawer. High
Courts in this country had expressed conflicting opinions on the subject.
This Court resolved the cleavage in those pronouncements by holding that
the cheque ought to be presented to the drawee bank for its dishonour to
provide a basis for prosecution under Section 138. The Court observed:
“The use of the words “a bank” and “the bank” in the section are an
indicator of the intention of the legislature. “The bank” referred to in
proviso (a) to the proviso to Section 138 of the Act would mean the drawee
bank on which the cheque is drawn and not all banks where the cheque is
presented for collection including the bank of the payee, in whose favour
the cheque is issued.

It, however, does not mean that the cheque is always to be presented to the
drawer’s bank on which the cheque is issued. However, a combined reading of
Sections 3, 72 and 138 of the Act would clearly show that the law mandates
the cheque to be presented at the bank on which it is drawn if the drawer
is to be held criminally liable. Such presentation is necessarily to be
made within six months at the bank on which the cheque is drawn, whether
presented personally or through another bank, namely, the collecting bank
of the payee.”

3. Ishar Alloy’s case (supra) did not deal with the question of
jurisdiction of the Courts nor was Bhaskaran noticed by the Court while
holding that the presentation of the cheque ought to be within six months
to the drawee bank. But that does not, in our view, materially affect the
logic underlying the pronouncement, which pronouncement coming as it is
from a bench of coordinate jurisdiction binds us. When logically extended
to the question of jurisdiction of the Court to take cognizance, we find it
difficult to appreciate how a payee of the cheque can by presentation of
the cheque to his own bank confer jurisdiction upon the Court where such
bank is situate. If presentation referred to in Section 138 means
presentation to the “drawee bank”, there is no gainsaying that dishonour
would be localised and confined to the place where such bank is situated.
The question is not whether or not the payee can deposit his cheque in any
bank of his choice at any place. The question is whether by such deposit
can the payee confer jurisdiction on a Court of his choice? Our answer is
in the negative. The payee may and indeed can present the cheque to any
bank for collection from the drawee bank, but such presentation will be
valid only if the drawee bank receives the cheque for payment within the
period of six months from the date of issue. Dishonour of the cheque would
be localised at the place where the drawee bank is situated. Presentation
of the cheque at any place, we have no manner of doubt, cannot confer
jurisdiction upon the Court within whose territorial limits such
presentation may have taken place.
4. Then came Harman Electronics (P) Ltd. v. National Panasonic India (P)
Ltd. (2009) 1 SCC 720. That was a case where the complaint under Section
138 was filed in a Delhi Court, only because the statutory notice required
to be issued under the proviso to Section 138 was issued from Delhi. If
Bhaskaran was correctly decided, Harman should not have interfered with the
exercise of jurisdiction by the Delhi Court for issue of a notice was in
terms of Bhaskaran, one of the factors that clothed the Court in Delhi to
take cognizance and try the case. Harman did not do so. In Harman’s case
this Court, emphasized three distinct aspects. Firstly, it said that there
was a world of difference between issue of a notice, on the one hand, and
receipt, thereof, on the other. Issue of notice did not give rise to a
cause of action while receipt did, declared the Court.
5. Secondly, the Court held that the main provision of Section 138
stated what would constitute an offence. The proviso appended thereto
simply imposed certain further conditions which must be fulfilled for
taking cognizance of the offence. The following passage deals with both
these aspects:
“It is one thing to say that sending of a notice is one of the ingredients
for maintaining the complaint but it is another thing to say that dishonour
of a cheque by itself constitutes an offence. For the purpose of proving
its case that the accused had committed an offence under Section 138 of the
Negotiable Instruments Act, the ingredients thereof are required to be
proved. What would constitute an offence is stated in the main provision.
The proviso appended thereto, however, imposes certain further conditions
which are required to be fulfilled before cognizance of the offence can be
taken. If the ingredients for constitution of the offence laid down in
provisos (a), (b) and (c) appended to Section 138 of the Negotiable
Instruments Act are intended to be applied in favour of the accused, there
cannot be any doubt that receipt [pic]of a notice would ultimately give
rise to the cause of action for filing a complaint. As it is only on
receipt of the notice that the accused at his own peril may refuse to pay
the amount. Clauses (b) and (c) of the proviso to Section 138 therefore
must be read together. Issuance of notice would not by itself give rise to
a cause of action but communication of the notice would.”

6. Thirdly, the Court held that if presentation of the cheque or issue
of notice was to constitute a good reason for vesting courts with
jurisdiction to try offences under Section 138, it would lead to harassment
of the drawer of the cheques thereby calling for the need to strike a
balance between the rights of the parties to the transaction. The Court
said:
“We cannot, as things stand today, be oblivious of the fact that a banking
institution holding several cheques signed by the same borrower can not
only present the cheque for its encashment at four different places but
also may serve notices from four different places so as to enable it to
file four complaint cases at four different places. This only causes grave
harassment to the accused. It is, therefore, necessary in a case of this
nature to strike a balance between the right of the complainant and the
right of an accused vis-à-vis the provisions of the Code of Criminal
Procedure.”

7. Bhaskaran was, in the wake of the above, considerably diluted and the
logic behind vesting of jurisdiction based on the place from where the
notice was issued questioned. Even presentation of the cheque as a reason
for assumption of jurisdiction to take cognizance was doubted for a
unilateral act of the complainant/payee of the cheque could without any
further or supporting reason confer jurisdiction on a Court within whose
territorial limits nothing except the presentation of the cheque had
happened.
8. Three recent decisions need be mentioned at this stage which have
followed Bhaskaran and attempted to reconcile the ratio of that case with
the subsequent decisions in Ishar Alloy Steels and Harman Electronics. In
Nishant Aggarwal v. Kailash Kumar Sharma (2013) 10 SCC 72 this Court was
once again dealing with a case where the complaint had been filed in Court
at Bhiwani in Haryana within whose territorial jurisdiction the complainant
had presented the cheque for encashment, although the cheque was drawn on a
bank at Gauhati in Assam. Relying upon the view taken in Bhaskaran this
Court held that the Bhiwani Court had jurisdiction to deal with the matter.
While saying so, the Court tried to distinguish the three-Judge Bench
decision in Ishar Alloy Steels (supra) and that rendered in Harman
Electronics case (supra) to hold that the ratio of those decisions did not
dilute the principle stated in Bhaskaran case. That exercise was repeated
by this Court in FIL Industries Ltd. v. Imtiyaz Ahmad Bhat (2014) 2 SCC 266
and in Escorts Ltd. v. Rama Mukherjee (2014) 2 SCC 255 which too followed
Bhaskaran and held that complaint under Section 138 Negotiable Instrument
Act could be instituted at any one of the five places referred to in
Bhaskaran’s case.
9. We have, with utmost respect to the Judges comprising the Bench that
heard the above cases, found it difficult to follow suit and subscribe to
the view stated in Bhasakaran. The reasons are not far too seek and may be
stated right away.
10. Section 138 is a penal provision that prescribes imprisonment upto
two years and fine upto twice the cheque amount. It must, therefore, be
interpreted strictly, for it is one of the accepted rules of interpretation
that in a penal statute, the Courts would hesitate to ascribe a meaning,
broader than what the phrase would ordinarily bear. Section 138 is in two
parts. The enacting part of the provision makes it abundantly clear that
what constitutes an offence punishable with imprisonment and/or fine is the
dishonour of a cheque for insufficiency of funds etc. in the account
maintained by the drawer with a bank for discharge of a debt or other
liability whether in full or part. The language used in the provision is
unambiguous and the ingredients of the offence clearly discernible viz. (a)
Cheque is drawn by the accused on an account maintained by him with a
banker. (b) The cheque amount is in discharge of a debt or liability and
(c) The cheque is returned unpaid for insufficiency of funds or that the
amount exceeds the arrangement made with the bank. But for the proviso that
comprises the second part of the provision, any dishonour falling within
the four corners of the enacting provision would be punishable without much
ado. The proviso, however, draws an exception to the generality of the
enacting part of the provision, by stipulating two steps that ought to be
taken by the complainant holder of the cheque before the failure of the
drawer gives to the former the cause of action to file a complaint and the
competent Court to take cognizance of the offence. These steps are distinct
from the ingredients of the offence which the enacting provision creates
and makes punishable. It follows that an offence within the contemplation
of Section 138 is complete with the dishonour of the cheque but taking
cognizance of the same by any Court is forbidden so long as the complainant
does not have the cause of action to file a complaint in terms of clause
(c) of the proviso read with Section 142 which runs as under:
”Section 142:
Cognizance of offences. —Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)—
(a) no court shall take cognizance of any offence punishable under section
138 except upon a complaint, in writing, made by the payee or, as the case
may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause
of action arises under clause (c) of the proviso to section 138: [Provided
that the cognizance of a complaint may be taken by the Court after the
prescribed period, if the complainant satisfies the Court that he had
sufficient cause for not making a complaint within such period.]
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any offence punishable under
section 138.“

11. The following would constitute ‘cause of action’ referred to in sub
clause (b) above:
The complainant has presented the cheque for payment within the period of
six months from the date of the issue thereof.
The complainant has demanded the payment of the cheque amount from the
drawer by issuing a written notice within thirty days of receipt of
information by him from the bank regarding the dishonour.
The drawer has failed to pay the cheque amount within fifteen days of the
receipt of the notice.
12. A proper understanding of the scheme underlying the provision would
thus make it abundantly clear that while the offence is complete upon
dishonour, prosecution for such offence is deferred till the time the cause
of action for such prosecution accrues to the complainant. The proviso in
that sense, simply postpones the actual prosecution of the offender till
such time he fails to pay the amount within the statutory period prescribed
for such payment. There is, in our opinion, a plausible reason why this
was done. The Parliament in its wisdom considered it just and proper to
give to the drawer of a dishonoured cheque an opportunity to pay up the
amount, before permitting his prosecution no matter the offence is
complete, the moment the cheque was dishonoured. The law has to that extent
granted a concession and prescribed a scheme under which dishonour need not
necessarily lead to penal consequence if the drawer makes amends by making
payment within the time stipulated once the dishonour is notified to him.
Payment of the cheque amount within the stipulated period will in such
cases diffuse the element of criminality that Section 138 attributes to
dishonour by way of a legal fiction implicit in the use of the words “shall
be deemed to have committed an offence”. The drawer would by such payment
stand absolved by the penal consequences of dishonour. This scheme may be
unique to Section 138 NI Act, but there is hardly any doubt that the
Parliament is competent to legislate so to provide for situations where a
cheque is dishonoured even without any criminal intention on the part of
the drawer.
13. The scheme of Section 138 thus not only saves the honest drawer but
gives a chance to even the dishonest ones to make amends and escape
prosecution. Compliance with the provision is, in that view, a mandatory
requirement. (See C.C. Alavi Haji v. Palapetty Muhammed and Another (2007)
6 SCC 555).
14. Harman in that view correctly held that “what would constitute an
offence is stated in the main provision. The proviso appended thereto
however imposes certain further conditions which are required to be
fulfilled before cognizance of the offence can be taken.” If the
Parliament intended to make the conditions stipulated in the proviso, also
as ingredients of the offence, the provision would have read differently.
It would then have specifically added the words “and the drawer has despite
receipt of a notice demanding the payment of the amount, failed to pay the
same within a period of fifteen days from the date of such demand made in
writing by a notice”. That, however, is not how the enacting provision of
Section 138 reads. The legislature has, it is obvious, made a clear
distinction between what would constitute an offence and what would give to
the complainant the cause of action to file a complaint for the court
competent to take cognizance. That a proviso is an exception to the
general rule is well settled. A proviso is added to an enactment to
qualify or create an exception to what is contained in the enactment. It
does not by itself state a general rule. It simply qualifies the
generality of the main enactment, a portion which but for the proviso would
fall within the main enactment.
15. The P. Ramanatha Aiyar, Law Lexicon, 2nd Edition, Wadhwa & Co. at
page 1552 defines proviso as follows:
“The word “proviso” is used frequently to denote the clause the first words
of which are “provided that” inserted in deeds and instruments generally.
And containing a condition or stipulation on the performance or non-
performance of which, as the case maybe. The effect of a proceeding clause
or of the deed depends.
A Clause inserted in a legal or formal document, making some condition,
stipulation, exception or limitation or upon the observance of which the
operation or validity of the instrument depends [ S. 105, Indian Evidence
Act].
A proviso is generally intended to restrain the enacting clause and to
except something which would have otherwise been within it or in some
measure to modify the enacting clause…”

16. To quote “Craies on Statute Law”, 7th Edn., Sweet & Maxwell at page
220 “If the principal object of the Act can be accomplished and stand
under the restriction of the saving clause or proviso, the same is not to
be held void for repugnancy.”
17. One of the earliest judgments on the subject is a three Judge Bench
decision in Kedarnath Jute Manufacturing Co. v. Commercial Tax Officer,
Calcutta and Ors. AIR 1966 SC 12. The Court was in that case examining the
effect of a proviso which imposed a condition on getting exemption from tax
and observed:
“… The substantive clause gives the exemption and the proviso qualifies
the substantive clause. In effect the proviso says that part of the
turnover of the selling dealer covered by the terms of sub-cl. (ii) will be
exempted provided a declaration in the from prescribed is furnished. To put
it in other words, a dealer cannot get the exemption unless he furnishes
the declaration in the prescribed form. It is well settled that “the effect
of an excepting or qualifying proviso, according to the ordinary rules of
construction, is to except out of the preceding portion of the enactment,
or to qualify something enacted therein, which but for the proviso would be
within it” : see “Craies on Statute Law”, 6th Edn., p. 217.”
18. Also pertinent is a four-Judge Bench decision of this Court in Dwarka
Prasad v. Dwarka Das Saraf (1976) 1 SCC 128 where this Court was examining
whether a cinema theatre equipped with projectors and other fittings ready
to be launched as entertainment house was covered under the definition of
‘accommodation’ as defined in Section 2 (1) (d) of Uttar Pradesh
(Temporary) Control of Rent and Eviction Act, 1947. The proviso provided
for some exception for factories and business carried in a building. It was
held that sometimes draftsmen include proviso by way of over caution to
remove any doubts and accommodation would include this cinema hall:
“18. A proviso must be limited to the subject-matter of the enacting
clause. It is a settled rule of construction that a proviso must prima
facie be read and considered in relation to the principal matter to which
it is a proviso. It is not a separate or independent enactment. ‘Words are
dependent on the principal enacting words, to which they are tacked as a
proviso. They cannot be read as divorced from their context’ 1912 A.C. 544.
If the rule of construction is that prima facie a proviso should be limited
in its operation to the subject-matter of the enacting clause, the stand we
have taken is sound. To expand the enacting clause, inflated by the
proviso, sins against the fundamental rule of construction that a proviso
must be considered in relation to the principal matter to which it stands
as a proviso. A proviso ordinarily is but a proviso, although the golden
rule is to read the whole section, inclusive of the proviso, in such manner
that they mutually throw light on each other and result in a harmonious
construction.
The proper course is to apply the broad general rule of construction which
is that a section or enactment must be construed as a whole, each portion
throwing light if need be on the rest.
The true principle undoubtedly is, that the sound interpretation and
meaning of the statute, on a view of the enacting clause, saving clause,
and proviso, taken and construed together is to prevail. (Maxwell on
Interpretation of Statutes, 10th Edn. p. 162)”
(emphasis supplied)

19. In Sreenivasa General Traders & Ors. v. State of Andhra Pradesh &
Ors. (1983) 4 SCC 353 another three- Judge bench of this Court examined the
role of a proviso while interpreting Rule 74(1) of the Andhra Pradesh
(Agricultural Produce & Livestock) Markets Rules, 1969.
“The normal function of a proviso is to except something out of the main
enacting part or to qualify something enacted therein which but for the
proviso would be within the purview of the enactment. Proviso to Rule 74(1)
is added to qualify or create an exception.”

20. Reference may also be made to Tribhovandas Haribhai Tamboli v.
Gujarat Revenue Tribunal and others (1991) 3 SCC 442 wherein this Court
clearly held that when the language of the main enactment is clear, the
proviso can have no effect on the interpretation of the main clause.
”7. It is a cardinal rule of interpretation that a proviso to a particular
provision of a statute only embraces the field, which is covered by the
main provision. It carves out an exception to the main provision to which
it has been enacted by the proviso and to no other. The proper function of
a proviso is to except and deal with a case which would otherwise fall
within the general language of the main enactment, and its effect is to
confine to that case. Where the language of the main enactment is explicit
and unambiguous, the proviso can have no repercussion on the interpretation
of the main enactment, so as to exclude from it, by implication what
clearly falls within its express terms. The scope of the proviso,
therefore, is to carve out an exception to the main enactment and it
excludes something which otherwise would have been within the rule. It has
to operate in the same field and if the language of the main enactment is
clear, the proviso cannot be torn apart from the main enactment nor can it
be used to nullify by implication what the enactment clearly says nor set
at naught the real object of the main enactment, unless the words of the
proviso are such that it is its necessary effect.”
(emphasis supplied)

21. The same line of reasoning was followed in A.N. Sehgal and
Ors. v. Raje Ram Sheoram and Ors. 1992 Supp (1) SCC 304 while interpreting
a proviso in the Haryana Service of Engineers Rules, 1960 where the Court
held that the proviso to Rule 5(2)(a) cannot be applied to confer the
benefit of regular appointment on every promotee appointed in excess of 50%
quota. This Court harmoniously read the main provision and the proviso and
gave effect to the rule.

22. In Kerala State Housing Board and Ors. v. Ramapriya Hotels (P) Ltd.
and Ors. 1994 (5) SCC 672 this Court was examining whether the period of 4
years envisaged in proviso to Section 16(i) under Kerala Land Acquisition
Act, 1961 could be reckoned from date when agreement was executed or from
date of publication of notification under Section 3(1) of the Act after the
agreement was executed. After relying on Tribhovandas Haribhai Tamboli
(supra) and A.N. Sehgal (supra) this Court held that the proviso should be
harmoniously read with the section. To quote Tribhovandas (supra) as
followed in this judgment:

“In Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal this Court
held that the proper function of a proviso is to except and deal with a
case which would otherwise fall within the general language of the main
enactment and its effect is to be confined to that case. Where the language
of the main enactment is explicit and unambiguous, the proviso can have no
repercussion on the interpretation of the main enactment, so as to exclude
from it, by implication what clearly falls within its express terms. The
scope of the proviso, therefore, is to carve out an exception to the main
enactment and it excludes something which otherwise would have been within
the rule. It has to operate in the same field and if the language of the
main enactment is clear, the proviso cannot be torn apart from the main
enactment nor can it be used to nullify by implication what the enactment
clearly says, nor set at naught the real object of the main enactment,
unless the words of the proviso are such that it is its necessary effect.
In that case it was held that by reading the proviso consistent with the
provisions of Section 88 of the Bombay Tenancy and Agricultural Act, the
object of the main provision was sustained.”
(emphasis supplied)

23. In Kush Sahgal & Ors. v. M.C. Mitter & Ors. (2000) 4 SCC 526 a
landlady made an application for eviction of the tenant on the basis that
she wanted the place for business purposes which was not allowed as per the
proviso to Section 21(2) U.P. Urban Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972. The Court examined the role and purport of the
proviso and observed :
“This we say because the normal function of a proviso is to except
something out of the enactment or to qualify something enacted therein
which but for the proviso would be within the purview of the enactment.
(See : Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Tax Office
[1965]3SCR626). Since the natural presumption is that but for the proviso,
the enacting part of the section would have included the subject-matter of
the proviso, the enacting part has to be given such a construction which
would make the exceptions carved out by the proviso necessary and a
construction which would make the exceptions unnecessary and redundant
should be avoided (See: Justice G. P. Singh’s “Principles of Statutory
Interpretation” Seventh Edition 1999, p-163). This principle has been
deduced from the decision of the Privy Council in Govt. of the Province of
Bombay v. Hormusji Manekji (AIR 1947 PC 200) as also the decision of this
Court in Durga Dutt Sharma v.Navaratna Pharmaceutical Laboratories (AIR
1965 SC 980).”

24. To the same effect are the decisions of this Court in Ali M.K. and
Ors. v. State of Kerala and Ors. (2003) 11 SCC 632, Nagar Palika (supra)
and in Steel Authority of India Ltd. v. S.U.T.N.I Sangam & Ors. (2009) 16
SCC 1.
25. In conclusion, we may refer to Maxwell, “Interpretation of Statutes”
Edn. 12, 1969, on P. 189-190 which states that it is a general finding and
practice “that inconsistencies can be avoided by applying the general rule
that the words of a proviso are not to be taken “absolutely in their strict
literal sense” [R v. Dimbdin (1910)] but that a proviso is “of necessity
… limited in its operation to the ambit of the section which it
qualifies” [Lloyds and Scottish Finance Ltd v. Modern Cars and Canavans
(Kingston) Ltd.(1966)]. And, so far as that section itself is concerned,
the proviso receives a restricted construction: where the section confers
powers, “it would be contrary to the ordinary operation of a proviso to
give it an effect which would cut down those powers beyond what compliance
with the proviso renders necessary.” [Re Tabrisky v. Board of Trade
(1947)]”

26. Bhaskaran, in our view, reads the proviso as prescribing the
ingredients of the offence instead of treating it as an exception to the
generality of the enacting part by stipulating further conditions before a
competent Court may take cognizance of the same. Seen in the light of the
provisions of Section 142 of the Act, the proviso simply defers prosecution
of the offender till the conditions prescribed therein are satisfied.
Bhaskaran does not view the matter in that perspective while Harman (supra)
does. We find ourselves in respectful agreement with the view in Harman’s
case on this aspect.

27. In Bhaskaran, this Court resolved the confusion as to the place
of commission of the offence by relying upon Sections 177 to 179 of the
Cr.P.C. But the confusion arises only if one were to treat the proviso as
stipulating the ingredients of the offence. Once it is held that the
conditions precedent for taking cognizance are not the ingredients
constituting the offence of dishonour of the cheque, there is no room for
any such confusion or vagueness about the place where the offence is
committed. Applying the general rule recognised under Section 177 of the
Cr.P.C. that all offences are local, the place where the dishonour occurs
is the place for commission of the offence vesting the Court exercising
territorial jurisdiction over the area with the power to try the offences.
Having said that we must hasten to add, that in cases where the offence
under Section 138 is out of the offences committed in a single transaction
within the meaning of Section 220 (1) of the Cr.P.C. then the offender may
be charged with and tried at one trial for every such offence and any such
inquiry or trial may be conducted by any Court competent to enquire into or
try any of the offences as provided by Section 184 of the Code. So also,
if an offence punishable under Section 138 of the Act is committed as a
part of single transaction with the offence of cheating and dishonestly
inducing delivery of property then in terms of Section 182 (1) read with
Sections 184 and 220 of the Cr.P.C. such offence may be tried either at the
place where the inducement took place or where the cheque forming part of
the same transaction was dishonoured or at the place where the property
which the person cheated was dishonestly induced to deliver or at the place
where the accused received such property. These provisions make it clear
that in the commercial world a party who is cheated and induced to deliver
property on the basis of a cheque which is dishonoured has the remedy of
instituting prosecution not only at the place where the cheque was
dishonoured which at times may be a place other than the place where the
inducement or cheating takes place but also at the place where the offence
of cheating was committed. To that extent the provisions of Chapter XIII of
the Code will bear relevance and help determine the place where the
offences can be tried.

28. We may at this stage refer to two other decisions of this Court which
bear some relevance to the question that falls for our determination. In
Sadanandan Bhadran v. Madhavan Sunil Kumar (1998) 6 SCC 514 a two-judge
bench of this Court held that clause (a) of proviso to Section 138 does not
disentitle the payee to successively present cheque for payment during the
period of its validity. On each such presentation of the cheque and its
dishonour a fresh right – and not cause of action – accrues in his favour.
He may, therefore, without taking pre-emptory action in exercise of such
right under clause (b) of Section 138 go on presenting the cheque so long
as the cheque is valid for payment. But once he gives a notice under clause
(b) of Section 138 he forfeits such right for in case of failure of the
drawer to pay the money within the stipulated time he would be liable for
the offence and the cause of action for prosecution will arise. The
correctness of this view was questioned in MSR Leathers v. S. Palaniappan &
Anr. (2013) 1 SCC 177 before a bench comprising of Markandey Katju and B.
Sudershan Reddy, J.J. who referred the issue to a larger bench. The larger
bench in MSR Leathers’s case (supra) overruled Sadanandan Bhadran (supra)
holding that there was no reason why a fresh cause of action within the
meaning of Section 142 (b) read with section 138 should not be deemed to
have arisen to the complainant every time the cheque was presented but
dishonoured and the drawer of cheque failed to pay the amount within the
stipulated period in terms of proviso to 138. This Court said:
“In the result, we overrule the decision in Sadanandan Bhadran’s case
(supra) and hold that prosecution based upon second or successive dishonour
of the cheque is also permissible so long as the same satisfies the
requirements stipulated in the proviso to Section 138 of the Negotiable
Instruments Act. The reference is answered accordingly. The appeals shall
now be listed before the regular Bench for hearing and disposal in light of
the observations made above.”

29. What is important is that in Sadanandan Bhadran (supra) this Court
had, on a careful analysis of Section 138, held that an offence is created
when a cheque is returned by the bank unpaid for any reasons mentioned
therein, although the proviso to Section 138 stipulates three conditions
for the applicability of the section. It is only upon satisfaction of the
three conditions that prosecution can be launched for an offence under
Section 138. This Court observed:

“On a careful analysis of the above section, it is seen that its main part
creates an offence when a cheque is returned by the bank unpaid for any of
the reasons mentioned therein. The significant fact, however, is that the
proviso lays down three conditions precedent to the applicability of the
above section and, for that matter, creation of such offence and the
conditions are: (i) the cheque should have been presented to the bank
within six months of its issue or within the period of its validity,
whichever is earlier; (ii) the payee should have made a demand for payment
by registered notice after the cheque is returned unpaid; and (iii) that
the drawer should have failed to pay the amount within 15 days of the
receipt of the notice. It is only when all the [pic]above three conditions
are satisfied that a prosecution can be launched for the offence under
Section 138. So far as the first condition is concerned, clause (a) of the
proviso to Section 138 does not put any embargo upon the payee to
successively present a dishonoured cheque during the period of its
validity. This apart, in the course of business transactions it is not
uncommon for a cheque being returned due to insufficient funds or similar
such reasons and being presented again by the payee after sometime, on his
own volition or at the request of the drawer, in expectation that it would
be encashed. Needless to say, the primary interest of the payee is to get
his money and not prosecution of the drawer, recourse to which, normally,
is taken out of compulsion and not choice. For the above reasons it must be
held that a cheque can be presented any number of times during the period
of its validity. Indeed that is also the consistent view of all the High
Courts except that of the Division Bench of the Kerala High Court in
Kumaresan1 which struck a discordant note with the observation that for the
first dishonour of the cheque, only a prosecution can be launched for there
cannot be more than one cause of action for prosecution.”
(emphasis supplied)

30. MSR Leathers (supra) also looked at Section 138 and held that a
complaint could be filed under Section 138 after cause of action to do so
had accrued in terms of clause (c) of the proviso to Section 138 which
happens no sooner the drawer of the cheque fails to make the payment of the
cheque amount to the payee within fifteen days in terms of clause (b) to
proviso to Section 138. MSR Leathers was not so much concerned with the
question whether the proviso stipulated ingredients of the offence or
conditions precedent for filing a complaint. It was primarily concerned
with the question whether the second or successive dishonour followed by
statutory notices and failure of the drawer to make payment could be made a
basis for launching prosecution against the drawer. That question, as
noticed above, was answered in the affirmative holding that successive
cause of action could arise if there were successive dishonours followed by
statutory notices as required under the law and successive failure of the
drawer to make the payment. MSR Leathers cannot, therefore, be taken as an
authority for determining whether the proviso stipulates conditions
precedent for launching a prosecution or ingredients of the offence
punishable under Section 138. Sadanandan Bhadran may have been overruled
to the extent it held that successive causes of action cannot be made a
basis for prosecution, but the distinction between the ingredient of the
offence, on the one hand, and conditions precedent for launching
prosecution, on the other, drawn in the said judgement has not been
faulted. That distinction permeates the pronouncements of this Court in
Sadanandan Bhadran and MSR Leathers. High Court of Kerala has, in our
view, correctly interpreted Section 138 of the Act in Kairali Marketing &
Processing Cooperative Society Ltd. V. Pullengadi Service Cooperative Ltd.
(2007) 1 KLT 287 when it said:

“It is evident from the language of Section 138 of the N.I. Act that the
drawer is deemed to have committed the offence when a cheque issued by him
of the variety contemplated under Section 138 is dishonoured for the
reasons contemplated in the Section. The crucial words are “is returned by
the bank unpaid”. When that happens, such person shall be deemed to have
committed the offence. With the deeming in the body of Section 138, the
offence is already committed or deemed to have been committed. A careful
reading of the body of Section 138 cannot lead to any other conclusion.
Proviso to Section138 according to me only insists on certain conditions
precedent which have to be satisfied if the person who is deemed to have
committed the offence were to be prosecuted successfully. The offence is
already committed when the cheque is returned by the bank. But the cause of
action for prosecution will be available to the complainant not when the
offence is committed but only after the conditions precedent enumerated in
the proviso are satisfied. After the offence is committed, only if the
option given to avoid the prosecution under the proviso is not availed of
by the offender, can the aggrieved person get a right or course of action
to prosecute the offender. The offence is already deemed and declared but
the offender can be prosecuted only when the requirements of the proviso
are satisfied. The cause of action for prosecution will arise only when the
period stipulated in the proviso elapses without payment. Ingredients of
the offence have got to be distinguished from the conditions precedent for
valid initiation of prosecution.”

The stipulations in the proviso must also be proved certainly before the
offender can be successfully prosecuted. But in the strict sense they are
not ingredients of the deemed offence under the body of Section 138 of the
N.I. Act, though the said stipulations; must also be proved to ensure and
claim conviction. It is in this sense that it is said that the proviso does
not make or unmake the offence under Section 138 of the N.I. Act. That is
already done by the body of the Sections. This dispute as to whether the
stipulations of the proviso are conditions precedent or
ingredients/components of the offence under Section 138 of the N.I. Act may
only be academic in most cases. Undoubtedly the ingredients stricto sensu
as also the conditions precedent will have to be established satisfactorily
in all cases. Of course in an appropriate case it may have to be considered
whether substantial compliance of the conditions precedent can be reckoned
to be sufficient to justify a conviction. Be that as it may, the
distinction between the ingredients and conditions precedent is certainly
real and existent. That distinction is certainly vital while ascertaining
complicity of an indictee who faces indictment in a prosecution under
Section 138 with the aid of Section 141 of the N.I. Act. That is how the
question assumes such crucial significance here.”

31. To sum up:

(i) An offence under Section 138 of the Negotiable Instruments Act, 1881
is committed no sooner a cheque drawn by the accused on an account being
maintained by him in a bank for discharge of debt/liability is returned
unpaid for insufficiency of funds or for the reason that the amount exceeds
the arrangement made with the bank.
(ii) Cognizance of any such offence is however forbidden under Section 142
of the Act except upon a complaint in writing made by the payee or holder
of the cheque in due course within a period of one month from the date the
cause of action accrues to such payee or holder under clause (c) of proviso
to Section 138.
(iii) The cause of action to file a complaint accrues to a
complainant/payee/holder of a cheque in due course if
(a) the dishonoured cheque is presented to the drawee bank within a
period of six months from the date of its issue.

(b) If the complainant has demanded payment of cheque amount within thirty
days of receipt of information by him from the bank regarding the dishonour
of the cheque and

(c) If the drawer has failed to pay the cheque amount within fifteen days
of receipt of such notice.

(iv) The facts constituting cause of action do not constitute the
ingredients of the offence under Section 138 of the Act.
(v) The proviso to Section 138 simply postpones/defers institution of
criminal proceedings and taking of cognizance by the Court till such time
cause of action in terms of clause (c) of proviso accrues to the
complainant.
(vi) Once the cause of action accrues to the complainant, the jurisdiction
of the Court to try the case will be determined by reference to the place
where the cheque is dishonoured.
(vii) The general rule stipulated under Section 177 of Cr.P.C applies to
cases under Section 138 of the Negotiable Instruments Act. Prosecution in
such cases can, therefore, be launched against the drawer of the cheque
only before the Court within whose jurisdiction the dishonour takes place
except in situations where the offence of dishonour of the cheque
punishable under Section 138 is committed along with other offences in a
single transaction within the meaning of Section 220(1) read with Section
184 of the Code of Criminal Procedure or is covered by the provisions of
Section 182(1) read with Sections 184 and 220 thereof.
32. Before parting with this aspect of the matter, we need to remind
ourselves that an avalanche of cases involving dishonour of cheques has
come upon the Magistracy of this country. The number of such cases as of
October 2008 were estimated to be more than 38 lakhs by the Law Commission
of India in its 213th Report. The result is that cases involving dishonour
of cheque is in all major cities choking the criminal justice system at the
Magistrate’s level. Courts in the four metropolitan cities and other
commercially important centres are particularly burdened as the filing of
such cases is in very large numbers. More than five lakh such cases were
pending in criminal courts in Delhi alone as of 1st June 2008. The
position is no different in other cities where large number of complaints
are filed under S.138 not necessarily because the offence is committed in
such cities but because multinational and other companies and commercial
entities and agencies choose these places for filing the complaints for no
better reason than the fact that notices demanding payment of cheque
amounts were issued from such cities or the cheques were deposited for
collection in their banks in those cities. Reliance is often placed on
Bhaskaran’s case to justify institution of such cases far away from where
the transaction forming basis of the dishonoured cheque had taken place. It
is not uncommon to find complaints filed in different jurisdiction for
cheques dishonoured in the same transaction and at the same place. This
procedure is more often than not intended to use such oppressive litigation
to achieve the collateral purpose of extracting money from the accused by
denying him a fair opportunity to contest the claim by dragging him to a
distant place. Bhaskaran’s case could never have intended to give to the
complainant/payee of the cheque such an advantage. Even so, experience has
shown that the view taken in Bhaskaran’s case permitting prosecution at any
one of the five different places indicated therein has failed not only to
meet the approval of other benches dealing with the question but also
resulted in hardship, harassment and inconvenience to the accused persons.
While anyone issuing a cheque is and ought to be made responsible if the
same is dishonoured despite compliance with the provisions stipulated in
the proviso, the Court ought to avoid an interpretation that can be used as
an instrument of oppression by one of the parties. The unilateral acts of a
complainant in presenting a cheque at a place of his choice or issuing a
notice for payment of the dishonoured amount cannot in our view arm the
complainant with the power to choose the place of trial. Suffice it to say,
that not only on the Principles of Interpretation of Statutes but also the
potential mischief which an erroneous interpretation can cause in terms of
injustice and harassment to the accused the view taken in the Bhaskaran’s
case needs to be revisited as we have done in foregoing paragraphs.
33. With the above observations, I concur with the order proposed by my
noble Brother, Vikramajit Sen, J.

……………….……….…..…J.
(T.S. Thakur)
New Delhi
August 1, 2014

 

, if in the light of above circumstances, the trial court
felt that the accused could get benefit of doubt, the said view cannot be
held to be illegal, improper or contrary to law. Hence, even though we are
of the opinion that in an appeal against acquittal, powers of the appellate
court are as wide as that of the trial court and it can review,
reappreciate and reconsider the entire evidence brought on record by the
parties and can come to its own conclusion on fact as well as on law, in
the present case, the view taken by the trial court for acquitting the
accused was possible and plausible. On the basis of evidence, therefore,
at the most, it can be said that the other view was equally possible. But
it is well established that if two views are possible on the basis of
evidence on record and one favourable to the accused has been taken by the
trial court, it ought not to be disturbed by the appellate court. In this
case, a possible view on the evidence of prosecution had been taken by the
trial court which ought not to have been disturbed by the appellate court.
The decision of the appellate court (the High Court), therefore, is liable
to be set aside.”

————————————————————————————————————————————————-

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1671 OF 2011

|RAMAIAH @ RAMA |…..APPELLANT(S) |
| | |
|VERSUS | |
|STATE OF KARNATAKA |…..RESPONDENT(S) |

J U D G M E N T

A.K. SIKRI, J.

Laxmi, since deceased, was 14 years of age when she was
married to the appellant on 18.11.1992. Within six months of her marriage
i.e. on 22.05.1993, she died an unfortunate unnatural death. Her body was
recovered on 22.05.1993 at 4 p.m. from a well. It was cremated on that
day. However, four days thereafter i.e. on 26.05.1993, at 8 p.m., Mr.
Mariyappa (PW-1), maternal uncle of the deceased, lodged the complaint with
the Police Station and the case was registered as Cr. No.160/93.

2. As per his statement, it is he and his wife (PW-2) who brought up
Laxmi. At the age of 14, appellant’s father asked for the hand of Laxmi in
marriage with the appellant which resulted in solemnization of marriage
between deceased Laxmi and the appellant on 18.11.1992. PW-1 also stated
in his complaint that at the time of her marriage, there were negotiations
wherein the appellant and her parents had demanded a cash of Rs.5,000/- and
certain gold ornaments. PW-1 could arrange Rs.2,000/- cash only at that
time which was given by him in dowry at the time of marriage alongwith
certain gold ornaments, clothes and other articles. However, since they
were not able to pay the balance of Rs.3,000/-, Laxmi was harassed and
tortured, mentally and physically, because of non-fulfillment of dowry
demand and was asked repeatedly to bring the balance of Rs.3,000/- which
was due towards dowry amount. Laxmi had intimated about this demand and
harassment to her to PW-1 and PW-2 whenever she visited her parental house.
In spite of their best efforts, they could not comply with the said
demand. Few days before the fateful day, when she had come to her parents
house, PW-1 and PW-2 sent her back to her matrimonial home by convincing
her that they would pay the requisite amount soon after harvest of the
crops. It was further alleged that five days before her death, Laxmi had
complained about ill-treatment and harassment to her at the hands of the
appellant and his parents. However, on 22.05.1993 between 10.00 a.m. to
12.30 p.m., the maternal uncle was informed of the death of the deceased
due to drowning in a well belonging to one Bylappa. Her parents were also
informed of the said unnatural death of the deceased. According to the
informant, they did not accept the theory of accidental fall into the well
when deceased went to wash the clothes, as set up by the appellant and that
the accused persons after doing away with her life, had thrown her into the
well. It was also alleged that before they could reach the village of
accused, the dead body of deceased Laxmi was cremated and they did not have
an opportunity of seeing her face before she was cremated.

3. On the basis of the aforesaid complaint, a case was registered
against the husband (appellant herein), father-in-law, mother-in-law and
brother-in-law of the deceased Laxmi. No doubt, the initial complaint by
Mariyappa (PW-1) was to the effect that the accused persons murdered Laxmi
and then threw her into the well and also led the evidence of such crime to
disappear by burning the dead body much prior to the approval of maternal
uncle and parents of the deceased. However, after investigation, the
chargesheet was filed only for offences punishable under Sections 498-A,
304-B, 201 and 176 of the Indian Penal Code (for short ‘IPC’) read with
Sections 3, 4 and 6 (2) of the Dowry Prohibition Act. During trial, mother-
in-law and father-in-law of the deceased passed away. Brother-in-law of
the deceased, being a minor, was sent to Juvenile Offenders’ Court. Thus,
only the appellant was tried for the aforesaid change.

4. The prosecution examined 9 witnesses and 4 exhibits were marked. The
appellant gave his statement under Section 313 of the Code of Criminal
Procedure (for short ‘Cr.P.C.’) and thereafter one Ramakrishnappa was
examined as DW-1. After the conclusion of trial, arguments were heard by
the learned Additional Sessions Judge who returned his verdict vide
judgment dated 24.08.2001 acquitting the appellant of the charges with the
findings that prosecution was not able to prove the guilt of the appellant
beyond reasonable doubt. The State challenged the judgment of acquittal by
filing the appeal under Section 378 of Cr.P.C. in the High Court of
Karnataka. After re-appreciating the entire evidence on record, the High
Court has come to the conclusion that the appellant was in fact guilty of
offence punishable under Sections 3 & 4 of Dowry Prohibition Act as well as
under Sections 498-A, 304-B, 201 and 176 IPC. The judgment and order of
acquittal of trial court is, thereby, set aside by the High Court
pronouncing the following sentences on the appellant under the aforesaid
provisions:

“Having regarding to the facts and circumstances of this case, we
impose a sentence of five year of rigorous imprisonment and also minimum
fine of Rs.15,000/- for the offence punishable u/s 3 of the Dowry
Prohibition Act, in default, to undergo rigorous imprisonment for a period
of six months.

So far as offence u/s 4 of the Dowry Prohibition Act is concerned,
the accused is sentenced to undergo rigorous imprisonment for a period of 6
months and fine of Rs.5000/-, in default to undergo rigorous imprisonment
for a period of three months.

So far as offence u/s 498-A IPC is concerned, the accused is
sentenced to undergo two years rigorous imprisonment and fine of Rs.2000/-,
in default, to undergo rigorous imprisonment for a period of two months.

So far as Sec.304-B IPC, the accused shall undergo minimum sentence
of seven years rigorous imprisonment.

As far as offence under Section 201 IPC is concerned, the accused
shall undergo sentence for a period of one year.

So far as offence under Section 176 IPC, the accused shall pay a fine
of Rs.1000/-.

As the substantive sentence is imposed for the offence punishable u/s
304-B of IPC, all other sentences shall run concurrently.

The accused shall have the benefit of Sec. 428 Cr.P.C.”

5. Before we proceed to discuss the tenability of the merits of this
appeal preferred by the accused, we would like to state certain admitted
facts appearing in the case and would also like to discuss the approach of
the trial court as well as the High Court in giving conflicting verdicts.

6. As mentioned above, deceased Laxmi was 14 years of age at the time of
marriage and was hardly 15 years old when she met an unnatural death.
Marriage between the appellant and Laxmi was solemnized on 18.11.1992 and
within six months of the marriage, she died on 22.05.1993. As per the
prosecution, Shri Mariyappa (PW-1) learnt about the unnatural death of
Laxmi through the message sent from the village of the appellant between
10.00 a.m. and 12.30 p.m. on 22.05.1993. It is not in dispute that the
unnatural death of Laxmi was not intimated to the Police by her in-laws.
Though the parents of the deceased were informed, it is also not in dispute
that no postmortem was sought on the dead body of the deceased. The
appellant has also accepted the fact that as per the prevalent custom in
the community of the appellant as well as the complainant, dead bodies are
buried. However, in the present case, deceased Laxmi was cremated.

7. There is, however, some dispute about the presence of the parents of
the deceased at the time of cremation. As per the prosecution, Laxmi was
cremated before the parents or maternal uncle/aunt of the deceased could
reach the place of the appellant. On the other hand, the appellant
maintains that they had reached well in time and she was not only cremated
in their presence but it was with their concurrence that the body was
cremated and not buried.
8. The persistent and consistent defence put up by the appellant was
that it was an accidental death which occurred when Laxmi had gone to the
well to wash the clothes at about 8.00 a.m. on 22.05.1993 as she fell into
the well accidentally. As per the defence due to this fall, the cause of
death was asphyxia as a result of drowning. It was also the defence of
the appellant that though, as per the customs in their community the dead
bodies are buried, it was decided to cremate Laxmi because of unnatural
death and this decision was taken on the persuasion of the parents of the
deceased themselves. The defence had also taken a stand that the
appellant and his family even wanted to inform the Police about the
incident but her parents did not agree to the same. In so far as
allegations of demand of dowry by the appellant and his family are
concerned, there was a complete denial on the part of the accused persons.

9. A perusal of the judgment of the learned trial court would reflect
that it framed the following questions which had arisen for consideration:

“(1) Whether the prosecutor has proved that, the accused No.1 while
marrying with deceased Lakshmamma has demanded dowry from her parents for a
sum of Rupees Five Thousand and the ornaments and accordingly they had
given ornaments and cash of Rupees Two thousand as dowry, but he has not
summoned the same either to Lakshmamma or to her parents and thus committed
an offence punishable under section 3, 4 and 6 of Dowry Prevention Act ?

(2) Whether the Prosecutor has proved that, after the marriage Lakshmamma
started marital life with 1st accused, the first accused demanding his wife
Lakshmamma to bring the remaining dowry amount of Rupees Three Thousand
from her parents and started giving pinpricks and thus committed an offence
punishable under section 498 (A) of Indian Penal Code?

(3) Whether the prosecutor has proved that, the 1st accused was giving
more pinpricks to his deceased wife and on that reason on 22.05.1993 she
has committed suicide. Hence he has committed an offence punishable under
section 304 (B) of Indian Penal Code?

(4) Whether the Prosecutor has proved that, the 1st accused with an
intention to destroy the evidence has removed the dead body of Lakshmamma
from the well and burn her body and thus committed an offence punishable
under section 201 of the Indian Penal Code?

(5) Whether the Prosecutor has proved that, the 1st accused intentionally
has not informed the matter to the concerned officers about the suicide
committed by his wife Lakshmamma and thus committed an offence punishable
under section 176 of the Indian Penal Code?

(6) What order?

10. Dealing with question No.1, which pertains to the allegation
regarding demand of dowry, the trial court concluded that allegation of
demand of dowry was not true and in arriving on this conclusion, it was
swayed by the following factors:

(1) No elders or seniors had come forward and given evidence even when it
was stated that dowry was given in their presence.

(2) Further, there was no written documents before the Court in this
regard.

(3) None of the villagers had led their evidence before the Court with
regard to demand and receiving of dowry.

(4) PW-1 in his complaint had stated that prior to the marriage,
discussions were held wherein accused No.1 (father of the appellant) had
demanded a sum of Rs.5,000/- cash and ornaments. However, PW-8, Police Sub-
Inspector who received the complaint, admitted in his cross-examination
that this fact was not mentioned in the complaint (Ex.P/1). He also
admitted that in the complaint, it was also not mentioned that PW-1 would
pay the remaining dowry after few days. He also admitted that the averment
of PW-1 that two days before the marriage he had given Rs.2,000/- and had
told that he would give remaining Rs.3,000/- at the time of Shivratri
festival was also not mentioned in Ex.P/1.

(5) The trial court disbelieved the statement of PW-1 regarding payment of
Rs.2,000/- and ornaments etc. because of the reason that he had stated in
his cross-examination that he had got 3 acres of land which is dry land and
he has to maintain his family from his income with no other source of
income. Therefore, he was not capable of giving the aforesaid money and
ornaments.

(6) The trial court further noted that as per PW-1 and PW-3, Laxmi was
very beautiful girl and that was the reason the appellant married Laxmi as
he got attracted by her beauty. PW-1 and PW-3 also admitted that the
accused persons had incurred the marriage expenses and the marriage was
also performed at the residence of the accused/appellant.

(7) The P.W.1 Mariyappa in his cross-examination stated that, he had given
cash and ornaments to the bride and bride groom as per the customs in their
community. In his examination-in-chief he stated that, the 2nd accused
Venkatappa demanded the dowry. The 2nd accused had died. He in his
examination-in-chief had not stated about dowry demand by the appellant.
To the same effect is the testimony of PW-2, wife of PW-1 who categorically
stated that there was a custom of giving silver and gold ornaments and
clothes; the ornaments given were got prepared much prior to the marriage
of Laxmi; the alleged demand of dowry was made by the parents of groom and
his brother i.e. accused Nos. 2 to 4 and did not state about the demand of
dowry by the appellant. Even, PW-3, natural mother of Laxmi deposed on the
identical lines in respect of the dowry demand.

11. On that basis, the trial court arrived at the conclusion that in the
absence of any evidence, oral or documentary, the chances are that whatever
cash, clothes or ornaments were given at the time of marriage, was as per
the prevailing customs in the community and it was not the result of any
demand made by the appellant.

12. In so far as question Nos.2 and 3 are concerned, they were taken up
together by the trial court. In the first instance, the trial court
pointed out that though the complainant got the information about the death
of Laxmi on 22nd May, 1993, he lodged delayed complaint on 26th May, 1993
i.e. four days thereafter. From the statement of PW-1 in the cross-
examination that Laxmi was staying in her matrimonial house and visited her
parental house 5-6 times alongwith her husband and even stayed there with
her husband for some days and also from the admission of PW-1 that even
they were visiting matrimonial house of Laxmi and had visited her house for
5-6 times within a span of six months, the trial court observed that it was
an indication that the relationship of husband and wife was cordial and
with mutual love towards each other. Even, PW-2 and PW-3 had admitted
these facts in their cross-examination. The trial court further observed
that when the giving of dowry on the demand of the accused persons was not
established, it was not possible to believe that they were demanding the
alleged remaining dowry amount of Rs.3,000/- and giving pinpricks to her
for not fulfilling the said demand. According to the trial court, it was
significant that PW-3 who is the natural mother of the deceased did not
even state that Laxmi was being harassed for not bringing the balance dowry
amount. She had rather admitted that her daughter was happy for the first
three months and also accepted in her cross-examination that she had not
told the Police about living peaceful life only for three months. She also
admitted that she never told the Police about giving of dowry of Rs.2,000/-
and demand of balance amount which remained unpaid. The trial court
analysed the testimony of PW-4, PW-5 and PW-6 on this aspect and pointed
out that the allegation of demand of dowry could not be proved from their
testimony either. The discussion on this aspect is concluded in the
following manner:

“(27) After the marriage during the period of 6 months it was not
mentioned in the complaint that the accused have assaulted Lakshmamma
physically and thrown out of the house nor stated the same before the
court. Neither the villagers wherein the accused are residing nor their
neighbors have given any evidence before the court about pinpricks meted
out to her. As against which D.W.1 Ramakrishnappa, aged 56 years, said
that, from the beginning till the death of Lakshamma the accused persons
looked after here well and not given any pinpricks to her, he further told
that on that day she came to well for washing the cloth and due to slip of
her leg she fell in the well and he came to know about the same. In his
cross-examination no other statement was given on behalf of prosecution.

(28) It is an arranged marriage in the presence of elders, in the event of
giving any pinpricks about dowry harassment, this matter would have been
brought to the notice of elders and convene a panchayath. But it never
revealed anywhere about conveying the panchayath. Hence it is hereby seen
that the accused or her husband had not given pinpricks either in the
matter of dowry or in any other matter. It cannot be said that she has
committed for the said reason. Hence I answer both the questions
Negatively.”

13. The aforesaid was the raison d’etre which led to the acquittal of the
appellant by the trial court. The High Court has, however, given a
different glance to the entire matter. According to it, the aforesaid
approach of the trial court was erroneous in law as well as in appreciation
of the evidence on record. After taking note of the fact that Laxmi died
within six months of her marriage and it was an unnatural death, the High
Court has lamented on the conduct of the appellant and has arrived at the
conclusion that it was the appellant who was responsible for the death of
Laxmi and found him guilty of offence under Section 304-B of IPC. The High
Court has also accepted the version of the prosecution that Laxmi was
harassed and humiliated on account of non fulfillment of the demand of
dowry made by the appellant and, therefore, presumption under Section 113-B
of the Evidence Act was attracted. As per the High Court, the appellant
has not been able to lead any satisfactory evidence to dislodge this
presumption. The infirmities found in the depositions of PW-1 to PW-5 by
the trial court have been brushed aside and discarded by the High Court as
irrelevant and perverse. The High Court held that it would be impossible
to expect any party to the marriage talks to keep a record of demand and
payment of dowry as if it was a commercial transaction and, therefore, the
absence of documentary evidence in this regard should not have weighed with
the trial court. The High Court also observed that there was no admission
made by PW-1 that even without the alleged demand of dowry, he would have
given customary articles like clothes and ornaments and no such customary
practice was indicated. The finding of the trial court that the case of
the prosecution regarding demand and payment of dowry was not proved in the
absence of anyone from the village of the accused is also brushed aside by
observing that such a demand and payment would not be made public inasmuch
as such talks would be within closed doors and would be within the
knowledge of the parties to the marriage and kith and kin of the bride and
bridegroom. Further, apart from PW-1 to PW-3, PW-4, who is the neighbour
of PW-1 and PW-2, supported the version of the demand of dowry and the
harassment of Laxmi at the hands of the appellant and his family members.

14. Due to the aforesaid divergent and conflicting outcome of the
proceedings in the two courts below, we have gone through the testimony of
these witnesses. After examining the record and going through the reasons
recorded by both the courts below, we are inclined to accept conclusions
reached by the trial court as we are of the view that the High Court
committed grave error in ignoring and glossing over various contradictions
in the testimonies of PW-1 to PW-5 which were pointed out by the trial
court.

15. At the outset, we may record that some of the comments of the High
Court deprecating few of the reasons recorded by the trial court in support
of its findings are fully justified. The High Court is correct in its
observation that it was not appropriate for the trial court to expect
documentary evidence regarding acceptance of dowry as generally such a
record would not be kept since it was not a commercial transaction. The
High Court also appears to be justified in its observation that non
production of the villagers to prove the dowry demand would not be fatal.
We have eschewed and discarded these reasons assigned by the trial court.
At the same time, it is necessary to find out as to whether the evidence of
these witnesses (PW-1 to PW-3) is worthy of credence, on this aspect. We
find that there are certain very glaring and weighty factors which compel
us to disbelieve the prosecution version on this account.

16. In the present case, it would be prudent to start the discussion by
taking note of the conduct of the maternal uncle (PW-1), his wife (PW-2)
and natural mother (PW-3) of the deceased. They accept that information
about the death of Laxmi was received by them between 10.00 a.m. to 12.30
p.m. on 22.05.1993. They also accept the fact that they had reached the
place of occurrence. Body of the deceased was cremated on 22.05.1993.
There is some dispute as to whether these persons were present at the time
of cremation. According to them, deceased was cremated before they reached
the village of the appellant. To falsify this position taken by the
prosecution through these witnesses, the learned counsel for the appellant
had taken us to the evidence of PW-8 who had drawn Mahazar near the well.
This Mahazar coupled with the statement of PW-8 is a very significant piece
of evidence which has considerable effect in denting the creditworthiness
of the testimony of these witnesses. As per PW-8 himself, when he had
reached the spot, it was the mother of the deceased who pointed out the
place where the dead body was lying. This assertion amply demonstrates
that mother of the deceased had known where the body was kept and she along
with PW-1 and PW-2 had reached the place of occurrence before the dead body
was cremated. Relying upon this evidence, the trial court has disbelieved
the story of the prosecution that Laxmi was cremated even before these
persons had reached the village of the appellant. Strangely, the High
Court has discarded Mahazar drawn by PW-8 by giving a spacious reason viz.
it was not an exhibited document before the Court, little realising that
this was the document produced by the prosecution itself and even without
formal proof thereto by the prosecution, it was always open for the defence
to seek reliance on such an evidence to falsify the prosecution version.
Moreover, PW-8 has specifically referred to this document in his evidence.
It is also a matter of record that a specific suggestion was made to PW-3
(mother of the deceased) in the cross-examination to the effect that it is
she who had pointed out the place of the dead body lying near the well to
the Police personnel. The version of PW-1 to PW-3 that they reached the
village of the appellant after Laxmi had already been cremated, does not
inspire confidence and appears to be mendacious.

17. In the aforesaid circumstances, we have to proceed on the basis that
PW-1 to PW-3, on coming to know of the death of Laxmi, had reached the
village of the appellant when the dead body was still lying near the well
from where it was extracted. If the body was cremated thereafter, and not
buried, it can clearly be inferred that same was done with consent, express
or implied, of the complainant namely maternal uncle and the mother of the
deceased. It can also be inferred that parties had decided at that time
that matter be not reported to the Police and body be cremated. To say it
otherwise, by accepting the version of the prosecution, would lead to some
absurdities. It would mean that when maternal uncle or aunt as well as
mother of Laxmi were present and had seen the dead body lying at the spot,
they objected to the body being cremated. They also wanted Police to be
informed. If it was so, why they did not put up any resistance? We have to
keep in mind that these family members of Laxmi have come out with the
allegation that Laxmi was harassed as well as mentally and physically
tortured because of non fulfillment of dowry demand. In such a scenario,
they would not have remained silent and mute spectators to the events that
followed even when they were not to their liking. Not only this conduct
belies their version, another weighty factor is that the complainant
remained silent about these happenings for a period of 4 days and lodged
the report with the Police only on 26.05.1993 when they came out with the
allegations of demand of dowry and harassment.

18. We are conscious of the fact that in such cases, sometimes there may
be delay in lodging the FIR for various valid reasons. However, it is
important that those reasons come on record. There is no explanation worth
the name given by the complainant as to why the complainant maintained
stoic silence. In this backdrop, the testimony of these witnesses alleging
dowry demand has to be tested more stringently and with some caution. On
that touchstone, when we analyse the statements, we find the contradictions
therein, as pointed out by the learned trial court, become very appealing
and meaningful.

19. With the aforesaid observations, we proceed to discuss the first
specific charge under Section 498-A of the IPC relating to the demand of
dowry. We have already stated the reasons which prevailed with the trial
court in not accepting the prosecution version of demand of dowry by the
appellant herein, as well as the reasons which influenced the High Court to
take a contrary view. After going through the evidence of PW-1 to PW-3 as
well as PW-4 to PW-6, we find that the trial court correctly appreciated
and analysed the evidence of these witnesses. In the first instance, it
needs to be recorded with due emphasis that none of the witnesses had made
any specific allegation for the demand of the dowry in so far as the
appellant is concerned. The prosecution also could not establish that any
dowry articles were given at the time of marriage. On the contrary, it is
accepted by these witnesses that the appellant had asked for the hand of
Laxmi because of her beauty by which he was attracted. We are not
suggesting that this reason, by itself, is sufficient to rule out the
possibility of demand of dowry. At the same time, this circumstance when
seen with all other attendant factors surfacing on the record of this case,
makes it somewhat difficult to swallow the prosecution version that there
would be a demand of dowry as a precondition for marriage. Other attendant
circumstances also negate the theory of demand. PW-1 and PW-3 have
themselves admitted that it is the accused persons who had incurred all the
marriage expenses and also admitted that marriage was performed at the
residence of the appellant. This would be because of the reason, as
pleaded by the appellant in support of which the appellant led evidence as
well, that the family members of Laxmi were poor persons and had not
sufficient means to even incur the expenditure on the wedding of Laxmi.
Even in respect of alleged demand of dowry, PW-1 Mariyappa stated that the
so-called demand was by the father of the appellant and did not at all
accuse the appellant in this behalf. To the same effect is the testimony
of PW-2.

20. When the demand of dowry and giving of dowry at the time of marriage
has not been proved, further version of the prosecution witnesses that
there was a demand for payment of remaining amount of Rs.3,000/- and
harassment of Laxmi on that account, also becomes doubtful. It has come on
record, and can be clearly discerned from the reading of the statements of
the material witnesses viz. the family members of Laxmi, that during this
short period of 6 months of the marriage, she had visited her matrimonial
house 5-6 times. Pertinently, her visits were alongwith her husband. The
couple had even stayed in the parental house of Laxmi for some days on few
occasions. This indicates that the relationship of husband and wife was
cordial. In this backdrop, evidence of PW-3, mother of the deceased Laxmi,
assumes great significance, who has not even stated that her daughter was
harassed for not bringing the alleged balance dowry amount. On the
contrary, she accepted that her daughter was happy for first 3 months. So
much so in her statement to the Police, she had not told the Police about
living peaceful life only for 3 months. She did not tell the Police about
giving of dowry of Rs.2,000/- and demand of balance amount coupled with
harassment because of death.

21. In addition to the aforesaid material aspects which are highlighted
from the evidence of the prosecution witnesses, most important feature
which is accepted by these witnesses is that in so far as the appellant
individually is concerned, there was no demand of dowry by him. In the
absence of any particular allegation against the appellant in this behalf,
would be improper to convict the appellant under Section 498-A IPC.

22. We find that the High Court has ignored the aforesaid features which
are elaborately discussed in the judgment of the trial court, culling from
the depositions of the prosecution witnesses. The High Court, while
accepting the version of the prosecution on this aspect, namely, Laxmi was
harassed and humiliated because of demand of dowry made by the appellant,
has embarked on the discussion which is general and non-specific in
nature. Even if there is little evidence, that is too infinitesimal to
convict the appellant, more so when that is not only self contradictory but
also surrounded by other weighty circumstances that go in favour of the
accused. Once we find that the demand of dowry and harassment on that
account is not proved beyond reasonable doubt, question of invocation of
Section 113 Evidence Act would not arise. We feel that the High Court has
been totally influenced by the fact that Laxmi had died within 6 months of
her marriage and it was an unnatural death.

23. No doubt, it was so. But only for this reason, the High Court could
not have convicted the appellant by finding him guilty of offence under
Section 304-B of IPC as well by primarily relying upon the provisions of
Section 113-B of the Evidence Act.

24. We are conscious of the fact that it was an unfortunate demise of
Laxmi who died within 6 months of the marriage. However, at the same time,
whether her death was accidental as claimed by the defence or it was a
suicide committed by Laxmi, is not clearly established. Had the
allegations of demand of dowry and harassment of Laxmi were established
thereby making it an offence under Section 498-A of IPC, things would not
have been different. However, when we do not find dowry demand and
harassment of Laxmi to be established, the inferences drawn by the High
Court taking the aid of Section 113-B of the Evidence Act also deserve to
be discarded. Section 113-B of the Evidence Act reads as under:

“Presumption as to dowry death:- When the question is whether a
person has committed the dowry death of a woman and it is shown that soon
before her death such woman had been subjected by such person to cruelty or
harassment for, or in connection with, any demand for dowry, the court
shall presume that such person had caused the dowry death.”

A plain reading of the aforesaid provision would demonstrate that to
attract the presumption as to dowry death stated in the aforesaid
provision, it is necessary to show that soon before her death, she had been
subjected by such persons to cruelty or harassment for, or in connection
with, any demand for dowry. When this essential ingredient has not been
established in the present case, the question of drawing any presumption by
invoking of the aforesaid provision would not arise.

25. In this backdrop, we revert back to the conduct of the mother of
Laxmi, as well as her maternal uncle and his wife (i.e. PW-1 and PW-2),
which becomes very crucial. As per our discussion above, it is clear that
they had reached the place of death, after receiving the information, much
before Laxmi was cremated. Once that is accepted, as it is established
from record and particularly Mahazar drawn by PW-8, further events happen
thereafter are to be analysed keeping in mind this fundamental aspect. In
fact, the entire time of thinking of the High Court proceeds on the premise
that Laxmi was cremated even before her parents and uncle/aunt reached the
appellant’s village. Entire edifice based on thereupon crumbles once this
finding is found to be erroneous. As we are of the opinion that the
finding of the trial court is correct thay they had reached the village
well in time and body was cremated in their presence, further sequence of
events has to seen in that hue. It was told by the accused persons that
Laxmi had died accidentally falling into the well with the active or
passive consent of PW-1 to PW-3, Laxmi was cremated. Her last rites were
performed in which these persons participated. They accepted the version
of the accused persons, at that time. It is only after a period of 3 days
that the complaint is filed with the allegations of demand of dowry by the
accused persons; harassment of Laxmi on account of alleged non-payment of
the balance dowry; and her unnatural death. We state at the cost of the
repetition that once it is established that the body of Laxmi was cremated
in the presence of these persons, it lends credence to the defence version
that there was an acceptance by them at that time that Laxmi had died due
to accidental slip in the well and all of them decided to cremate Laxmi and
not to report the matter to the Police. Otherwise it would baffle any
right minded person as to why they did not inform the Police or did not put
up any resistance.

26. Let us test the veracity of the version of these persons from another
angle. If there was harassment and cruel treatment given to Laxmi by her
in-laws, on reaching the place of the accused persons after receiving the
unnatural demise of Laxmi, they would have perceived the same to have
happen in mysterious circumstances. In such a situation, they would not
have kept quite and inform the Police immediately. They would have also
insisted on the postmortem of the body of Laxmi to find out the cause of
death. That would be the natural reaction of any such persons who believe
that their daughter had faced harassment on account of non-fulfillment of
the dowry demand and it would be fresh in their mind, if their version is
to be believed that just 5 days before the death, Laxmi had complained of
the cruel behaviour of her in-laws. No such thing happened, on the
contrary, body of Laxmi was cremated in their presence and after performing
the last rites, they turned back to their home quietly. It is 4 days
thereafter that they thought of lodging the complaint to the Police.

27. In the case of State of Andhra Pradesh v. M. Madhusudhan Rao, 2008
(14) SCALE 118, in similar circumstances, the Court termed such a delay as
‘embellishment and exaggeration’ though in that case, it was an abnormal
delay of 1 month. The principle stated therein was equally applied herein
as well which would be clear from the following observation herein:

“18. Having gone through the depositions of PW-1 and PW-3, to which
out attention was invited by learned Counsel for the State, we are
convinced that in the light of the overall evidence, analysed by the High
Court, the order of acquittal of the respondent is well merited and does
not call for interference, particularly when the First Information Report
was lodged by the complainant more than one month after the alleged
incident of forcible poisoning. Time and again, the object and importance
of prompt lodging of the First Information Report has been highlighted.
Delay in lodging the First Information Report, more often than not, results
in embellishment and exaggeration, which is a creature of an afterthought.
A delayed report not only gets bereft of the advantage of spontaneity, the
danger of the introduction of coloured version, exaggerated account of the
incident or a concocted story as a result of deliberations and
consultations, also creeps in, casting a serious doubt on its veracity.
Therefore, it is essential that the delay in lodging the report should be
satisfactorily explained.

19. In the present case, as noted supra, First Information Report in
regard to the alleged occurrence on 19th April, 1996 was lodged on 22nd
May, 1996. Admittedly after her discharge from the hospital on 22nd April,
1996, the complainant went to her parents’ house and resided there. In her
testimony, the complainant has deposed that since no one from the family of
the accused came to enquire about her welfare, she decided to lodge the
First Information Report. No explanation worth the name for delay in
filing the complaint with the police has come on record. We are of the
opinion that this circumstance raises considerable doubt regarding the
genuineness of the complaint and the veracity of the evidence of the
complainant (PW-1) and her father (PW-3), rendering it unsafe to base the
conviction of the respondent upon it. Resultantly, when the substratum of
the evidence given by the complainant (PW-1) is found to be unreliable, the
prosecution case has to be rejected in its entirety.

28. We may hasten to add here that many times in such type of cases,
there can be reasons for keeping quite at the given time and not reporting
the matter immediately. Therefore, we are conscious of the legal position
that delay per se may not render prosecution case doubtful as there may be
various reasons for lodging the FIR with some delay (see Sahebrao and
another v. State of Maharashtra, (2006) 9 SCC 794. Thus, there is no hard
and fast rule that any delay in lodging the FIR would automatically render
the prosecution case doubtful. However, what is emphasised is that if that
was so, it was necessary for the prosecution to at least come forward with
the explanation as to why the complainant kept quite and why he did not
report the matter to the Police immediately. No such explanation is coming
forward in the present case. Moreover, in the instant case, the delay is
seen as fatal when examined in juxtaposition with other material that has
come on record and discussed above, which shakes the veracity of
prosecution case, bringing it within the four corners of doubtful
prosecution story.

29. We find that when going by all these considerations, the trial court
gave benefit of doubt to the appellant and acquitted him, in the case of
reversal of such a verdict of acquittal, the High Court should have
specifically dealt with the aforesaid circumstances weighing in favour of
the appellant and should have given suitable justification for overturning
the verdict of acquittal. The approach of the High Court, as the appellate
court, while dealing with the case of acquittal is stated by this Court in
the case of Harbans Singh v. State of Punjab, (1962) Supp. 1 SCR 104, in
the following manner:
“8. The question as regards the correct principles to be applied by a
Court hearing an appeal against acquittal of a person has engaged the
attention of this Court from the very beginning. In many cases, especially
the earlier ones, the Court has in laying down such principles emphasised
the necessity of interference with an order of acquittal being based only
on “compelling and substantial reasons” and has expressed the view that
unless such reasons are present an Appeal Court should not interfere with
an order of acquittal. (Vide Suraj Pal Singh v. The State (1952) SCR 194;
Ajmer Singh v. State of Punjab MANU/SC/0042/1952 : 1953CriLJ 521; Puran v.
State of Punjab MANU/SC/0090/1952 : AIR 1953 SC 459). The use of the words
“compelling reasons” embarrassed some of the High Courts in exercising
their jurisdiction in appeals against acquittals and difficulties
occasionally arose as to what this Court had meant by the words “compelling
reasons”. In later years the Court has often avoided emphasis on
“compelling reasons” but nonetheless adhered to the view expressed earlier
that before interfering in appeal with an order of acquittal a Court must
examine not only questions of law and fact in all their aspects but must
also closely and carefully examine the reasons which impelled the lower
courts to acquit the accused and should interfere only if satisfied after
such examination that the conclusion reached by the lower court that the
guilt of the person has not been proved is unreasonable. (Vide Chinta v.
The State of Madhya Pradesh (Criminal Appeal No. 178 of 1959 decided on 18-
11-60); Ashrafkha Haibatkha Pathan v. The State of Bombay (Criminal Appeal
No. 38 of 1960 decided on 14-12-60).

9. It is clear that it emphasising in many cases the necessity of
“compelling reasons” to justify an interference with an order of acquittal
the Court did not in any way try to curtail the power bestowed on appellate
courts under s. 423 of the Code of Criminal Procedure when hearing appeals
against acquittal; but conscious of the intense dislike in our
jurisprudence of the conviction of innocent persons and of the facts that
in many systems of jurisprudence the law does not provide at all for any
appeal against an order of acquittal the Court was anxious to impress on
the appellate courts the importance of bestowing special care in the
sifting of evidence in appeal against acquittals. As has already been
pointed out less emphasis is being given in the more recent pronouncements
of this Court on “compelling reasons”. But, on close analysis, it is clear
that the principles laid down by the Court in this matter have remained the
same. What may be called the golden thread running through all these
decisions is the rule that in deciding appeals against acquittal the Court
of Appeal must examine the evidence with particular care, must examine also
the reasons on which the order of acquittal was based and should interfere
with the order only when satisfied that the view taken by the acquitting
Judge is clearly unreasonable. Once the appellate court comes to the
conclusion that the view taken by the lower court is clearly an
unreasonable one that itself is a “compelling reason” for interference.
For, it is a court’s duty to convict a guilty person when the guilt is
established beyond reasonable doubt, no less than it is its duty to acquit
the accused when such guilt is not so established.”

30. This very principle of law was formulated by the Court in M.
Madhusudhan Rao (supra) in the following manner:

“13. There is no embargo on the appellate court to review, reappreciate or
reconsider the evidence upon which the order of acquittal is founded. Yet,
generally, the order of acquittal is not interfered with because the
presumption of innocence, which is otherwise available to an accused under
the fundamental principles of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a court of
law, gets further reinforced and strengthened by his acquittal. It is also
trite that if two views are possible on the evidence adduced in the case
and the one favourable to the accused has been taken by the trial court, it
should not be disturbed. Nevertheless, where the approach of the lower
court in considering the evidence in the case is vitiated by some manifest
illegality or the conclusion recorded by the court below is such which by
some manifest illegality or the conclusion recorded by the court below is
such which could not have been possibly arrived at by any court acting
reasonably and judiciously and is, therefore, liable to the characterised
as perverse, then, to prevent miscarriage of justice, the appellate court
is obliged to interfere.

14. All these principles have been succinctly culled out by one of us
(C.K. Thakker, J.) in Chandrappa and Ors. v. State of Karnataka, (2007) 4
SCC 415.”

31. In Chandrappa (supra), which was followed in the aforesaid case, the
Court had observed:
“44. In our view, if in the light of above circumstances, the trial court
felt that the accused could get benefit of doubt, the said view cannot be
held to be illegal, improper or contrary to law. Hence, even though we are
of the opinion that in an appeal against acquittal, powers of the appellate
court are as wide as that of the trial court and it can review,
reappreciate and reconsider the entire evidence brought on record by the
parties and can come to its own conclusion on fact as well as on law, in
the present case, the view taken by the trial court for acquitting the
accused was possible and plausible. On the basis of evidence, therefore,
at the most, it can be said that the other view was equally possible. But
it is well established that if two views are possible on the basis of
evidence on record and one favourable to the accused has been taken by the
trial court, it ought not to be disturbed by the appellate court. In this
case, a possible view on the evidence of prosecution had been taken by the
trial court which ought not to have been disturbed by the appellate court.
The decision of the appellate court (the High Court), therefore, is liable
to be set aside.”

32. We thus, find that there were no solid and weighty reasons to reverse
the verdict of acquittal and to convict the appellant under the given
circumstances. Accordingly, we allow this appeal and set aside the
judgment of the High Court, holding that the appellant is not guilty of the
charges foisted against him.

33. During the pendency of this appeal, the appellant was enlarged on
bail vide order dated 31.03.2014. The bail bonds and sureties given by the
appellant are hereby discharged.

…………………………………..J.
(J. Chelameswar)

…………………………………..J.
(A.K. Sikri)
New Delhi;
August 7, 2014.

 

 

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