Discharge u/s 239 CrPC in case of Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act read with Section 109 IPC. Discharge set aside by Apex Court.

Held :

1.           We are of the opinion that this was not the stage where the court should have appraised the evidence and discharged the  accused as if it was passing an order of  acquittal. Further, defect in investigation itself cannot be a ground for discharge. In our opinion, the order impugned suffers from grave error and calls for rectification.

2.           It is worth  mentioning that the Code contemplates discharge  of the accused by the Court of Sessions under Section 227 in a case triable by it; cases  instituted upon a police report are covered by  Section 239 and cases instituted otherwise than  on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different  provisions with regard to discharge of an accused. Under Section 227 of the Code, the  trial court is required to discharge the accused if it “considers that there is not sufficient  ground for proceeding against the accused”.  However, discharge under Section 239 can be  ordered when “the Magistrate considers the charge  against the accused to be groundless”. The power to discharge is exercisable under Section 245(1) when, “the Magistrate considers, for reasons to  be recorded that no case against the accused has  been made out which, if not repudiated, would  warrant his conviction.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.22-23 OF 2014

(@SPECIAL LEAVE PETITION(CRL.)NOs.3810-3811 of 2012)

STATE OF TAMILNADU BY INS.OF POLICE VIGILANCE AND ANTI CORRUPTION             … APPELLANT

VERSUS

N.SURESH RAJAN & ORS.                                                                  …RESPONDENTS

With

CRIMINAL APPEAL NO.26-38 OF 2014

(@SPECIAL LEAVE PETITION(CRL.)NOs. 134-146 of 2013)

STATE REP. BY DEPUTY SUPDT. OF POLICE

VIGILANCE AND ANTI CORRUPTION                                … APPELLANT

VERSUS

K.PONMUDI & ORS.                                           …RESPONDENTS

 

J U D G M E N T : CHANDRAMAULI KR. PRASAD, J.

CRIMINAL APPEAL NO.22-23 OF 2014 (@SPECIAL LEAVE PETITION(CRL.)Nos.3810-3811 of 2012)

The State of Tamil Nadu aggrieved by the order dated 10th of December, 2010 passed by the Madras High Court in Criminal R.C.No.528 of 2009 and Criminal M.P.(MD) No.1 of 2009, setting aside the order dated 25th of September, 2009 passed by the learned Chief Judicial Magistrate-cum-Special Judge, Nagercoil (hereinafter referred to as ‘the Special Judge’), whereby he refused to discharge the respondents, has preferred these special leave petitions.

Leave granted.

Short facts giving rise to the present appeals are that Respondent No. 1, N. Suresh Rajan, during the period from 13.05.1996 to 14.05.2001, was a Member of the Tamil Nadu Legislative Assembly as also a State Minister of Tourism. Respondent No. 2, K. Neelkanda Pillai is his father and Respondent No. 3, R.Rajam, his mother. On the basis of an information that N. Suresh Rajan, during his tenure as the Minister of Tourism, had acquired and was in possession of pecuniary resources and properties in his name and in the names of his father and mother, disproportionate to his known sources of income, Crime No. 7 of 2002 was registered at Kanyakumari Vigilance and Anti Corruption Department on 14^th of March, 2002 against the Minister N. Suresh Rajan, his father, mother, elder sister and his bother-in-law. During the course of the investigation, the investigating officer collected and gathered informations with regard to the property and pecuniary resources in possession of N. Suresh Rajan during his tenure as the Minister, in his name and in the name of others. On computation of the income of the Minister from his known sources and also expenditure incurred by him, it was found that the properties owned and possessed by him are disproportionate to his known sources of income to the tune of Rs. 23,77,950.94. The investigating officer not only examined the accused Minister but also his father and mother as also his sister and the brother-in-law. Ultimately, the investigating agency came to the conclusion that during the check period, Respondent No.1, N. Suresh Rajan has acquired and was in possession of pecuniary resources and properties in his name and in the names of his father, K. Neelakanda Pillai (Respondent No. 2) and mother R. Rajam (Respondent No. 3) and his wife D.S. Bharathi for total value of Rs. 17,58,412.47. The investigating officer also came to the conclusion that Minister’s father and mother never had any independent source of income commensurate with the property and pecuniary resources found acquired in their names. Accordingly, the investigating officer submitted the charge-sheet dated 4th of July, 2003 against Respondent No.1, the Minister and his father (Respondent No.2) and mother (Respondent No.3) respectively, alleging commission of an offence under Section 109 of the Indian Penal Code and Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act. Respondents filed application dated 5th of December, 2003 under Section 239 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’), seeking their discharge. The Special Judge, by its order dated 25th of September, 2009 rejected their prayer. While doing so, the Special Judge observed as follows:

“At this stage it will be premature to say that there are no sufficient materials on the side of the state to frame any charge against them and the same would not be according to law in the opinion of this court and at the same time this court has come to know that there are basic materials for the purpose of framing charges against the 3 petitioners, the petition filed by the petitioners is dismissed and orders passed to that  effect.”

Aggrieved by the same, respondents filed criminal revision before the High Court. The High Court by the impugned judgment had set aside the order of the Special Judge and discharged the respondents on its finding that in the absence of any material to show that money passed from respondent No. 1 to his mother and father, latter cannot be said to be holding the property and resources in their names on behalf of their son. The High Court while passing the impugned order heavily relied on its earlier judgment in the case of State by Deputy Superintendent of Police, Vigilance and Anti Corruption Cuddalore Detachment v. K. Ponumudi & Ors. (2007-1MLJ-CRL.-100), the validity whereof is also under consideration in the connected appeals. The High Court while allowing the criminal revision observed as follows:

“12.In the instant case, the properties standing in the name of the petitioners 2 and 3 namely, A2 and A3 could not be held to be the properties or resources belonging to the 1^st accused in the absence of any investigation into the individual income resources of A2 and A3. Moreover, it is not disputed that A2 was a retired Head Master receiving pension and A3 is running a Financial Institution and an Income Tax assessee. In the absence of any material to show that A1’s money flow into the hands of A2 and A3, they cannot be said to be holding the properties and resources in their name on behalf of the first accused. There is also no material to show that A2 and A3 instigated A1 to acquire properties and resources disproportionate to his known source of income.”

It is in these circumstances that the appellant is before us.

CRIMINAL APPEAL NO.26-38 OF 2014 (@SPECIAL LEAVE PETITION(CRL.)Nos. 134-146 of 2013)

These special leave petitions are barred by limitation. There is delay of 1954 days in filing the petitions and 217 days in refiling the same. Applications have been filed for condoning the delay in filing and refiling the special leave petitions.

Mr. Ranjit Kumar, learned Senior Counsel for the petitioner submits that the delay in filing the special leave petitions has occurred as the Public Prosecutor earlier gave an opinion that it is not a fit case in which special leave petitions deserve to be filed. The Government accepted the opinion and decided not to file the special leave petitions. It is pointed out that the very Government in which one of the accused was a Minister had taken the aforesaid decision not to file special leave petitions. However, after the change of the Government, opinion was sought from the Advocate General, who opined that it is fit case in which the order impugned deserves to be challenged. Accordingly, it is submitted that the cause shown is sufficient to condone the delay.

Mr. Soli J. Sorabjee, learned Senior Counsel appearing for the respondents, however, submits that mere change of Government would not be sufficient to condone the inordinate delay. He submits that with the change of the Government, many issues which have attained finality would be reopened after long delay, which should not be allowed. According to him, condonation of huge delay on the ground that the successor Government, which belongs to a different political party, had taken the decision to file the special leave petitions would be setting a very dangerous precedent and it would lead to miscarriage of justice. He emphasizes that there is a life span for every legal remedy and condonation of delay is an exception. Reliance has been placed on a decision of this Court in the case of Postmaster General v. Living Media India Ltd., (2012) 3 SCC 563, and our attention has been drawn to Paragraph 29 of the judgment, which reads as follows:

“29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special  obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.”

Mr. Sorabjee further submits that the Limitation Act does not provide for different period of limitation for the Government in resorting to the remedy provided under the law and the case in hand being not a case of fraud or collusion by its officers or agents, the huge delay is not fit to be condoned. Reliance has also been placed on a decision of this Court in the case of Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448 and reference has been made to Paragraph 31 of the judgment, which reads as follows:

“31. It is true that when the State and its instrumentalities are the applicants seeking condonation of delay they may be entitled to certain amount of  latitude but the law of limitation is same for citizen and for governmental authorities. The Limitation Act does not provide for a different period to the Government in filing appeals or applications as such. It would be a different matter where the Government makes out a case where public interest was shown to have suffered owing to acts of fraud or collusion on the part of its officers or agents and where the officers were clearly at cross purposes with it. In a given case if any such facts are pleaded or proved they cannot be excluded from consideration and those factors may go into the judicial verdict. In the present case, no such facts are pleaded and proved though a feeble attempt by the learned counsel for the respondent was made to suggest collusion and fraud but without any basis. We cannot entertain the submission made across the Bar without there being any proper foundation in the pleadings.”

The contentions put forth by Mr. Sorabjee are weighty, deserving thoughtful consideration and at one point of time we were inclined to reject the applications filed for condonation of delay and dismiss the special leave petitions. However, on a second thought we find that the validity of the order impugned in these special leave petitions has to be gone into in criminal appeals arising out of Special Leave Petitions (Criminal) Nos. 3810-3811 of 2012 and in the face of it, it shall be unwise to dismiss these special leave petitions on the ground of limitation. It is worth mentioning here that the order impugned in the criminal appeals arising out of Special Leave Petition (Criminal) Nos. 3810-3811 of 2012, State of Tamil Nadu by Ins. Of Police, Vigilance and Anti Corruption v. N. Suresh Rajan & Ors., has been mainly rendered, relying on the decision in State by Deputy Superintendent of Police, Vigilance and Anti Corruption Cuddalore Detachment vs. K. Ponmudi and Ors.(2007-1MLJ-CRL.-100), which is impugned in the present special leave petitions. In fact, by order dated 3rd of January, 2013, these petitions were directed to be heard along with the aforesaid special leave petitions. In such circumstances, we condone the delay in filing and  refiling the special leave petitions.

In these petitions the State of Tamil Nadu impugns the order dated 11th of August, 2006 passed by the Madras High Court whereby the revision petitions filed against the order of discharge dated 21st of July, 2004 passed by the Special Judge/Chief Judicial Magistrate, Villupuram (hereinafter referred to as ‘the Special Judge’), in the Special Case No. 7 of 2003, have been dismissed.

Leave granted.

Shorn of unnecessary details, facts giving rise to the present appeals are that K. Ponumudi, respondent No. 1 herein, happened to be a Member of the State Legislative Assembly and a State Minister in the Tamil Nadu Government during the check period. P. Visalakshi Ponmudi (Respondent No.2) is his wife, whereas P.Saraswathi (Respondent No.3) (since deceased) was his mother-in-law. A.Manivannan (Respondent No.4) and A.Nandagopal (Respondent No.5) (since deceased) are the friends of the Minister (Respondent No.1). Respondent Nos. 3 to 5 during their lifetime were trustees of one Siga Educational Trust, Villupuram.

In the present appeals, we have to examine the validity of the order of discharge passed by the Special Judge as affirmed by the High Court. Hence, we consider it unnecessary to go into the details of the case of the prosecution or the defence of the respondent at this stage. Suffice it to say that, according to the prosecution, K. Ponmudi (Respondent No.1), as a Minister of Transport and a Member of the Tamil Nadu Legislative Assembly during the period from 13.05.1996 to 30.09.2001, had acquired and was in possession of pecuniary resources and properties in his name and in the names of his wife and sons, which were disproportionate to his known sources of income. Accordingly, Crime No. 4 of 2002 was registered at Cuddalore Village, Anti- Corruption Department on 14th of March, 2002 under Section 109 of the Indian Penal Code read with Section 13(2) and Section 13(1)(e) of the Prevention of Corruption Act, hereinafter referred to as ‘the Act’. During the course of investigation it transpired that between the period from 13.05.1996 to 31.03.2002, the Minister had acquired and possessed properties at Mathirimangalam, Kaspakaranai, Kappiampuliyur villages and other places in Villupuram Taluk, at Vittalapuram village and other places in Thindivanam Taluk, at Cuddalore and Pondicherry Towns, at Chennai and Trichy cities and at other places. It is alleged that respondent No.1- Minister being a public servant committed the offence of criminal misconduct by acquiring and being in possession of pecuniary resources and properties in his name and in the names of his wife, mother-in-law and also in the name of Siga Educational Trust, held by the other respondents on behalf of Respondent No. 1, the Minister, which were disproportionate to his known sources of income to the extent of Rs.3,08,35,066.97. According to the prosecution, he could not satisfactorily account for the assets and in this way, the Minister had committed the offence punishable under Section 13(2) read with Section 13(1)(e) of the Act.

In the course of investigation, it further transpired that during the check period and in the places stated above, other accused abetted the Minister in the commission of the offence by him. Respondent No. 2, the wife of the Minister, aided in commission of the offence by holding on his behalf a substantial portion of properties and pecuniary resources in her name as well as in the name of M/s. Visal Expo, of which she was the sole Proprietor. Similarly, Respondent No. 3, the mother-in-law, aided the Minister by holding on his behalf a substantial portion of properties and pecuniary resources in her name as well as in the name of Siga Educational Trust by purporting to be one of its Trustees. Similarly, Respondent No. 4 and Respondent No. 5 aided the Minister and held on his behalf a substantial portion of the properties and pecuniary resources in the name of Siga Educational Trust by purporting to be its Trustees. It is relevant here to mention that during the course of investigation, the statement of all other accused were taken and in the opinion of the investigating agency, after due scrutiny of their statements and further verification, the Minister was not able to satisfactorily account for the quantum of disproportionate assets. Accordingly, the Vigilance and Anti Corruption Department of the State Government submitted charge-sheet against the respondents under Section 109 of the Indian Penal Code and Section 13(2) read with Section 13(1)(e) of the Act.

It is relevant here to state that the offences punishable under the scheme of the Act have to be tried by a Special Judge and he may take cognizance of the offence without commitment of the accused and the Judge trying the accused is required to follow the procedure prescribed by  the Code for the trial of warrant cases by the Magistrate. The Special Judge holding the trial is deemed to be a Court of Sessions. The respondents filed petition for discharge under Section 239 of the Code inter alia contending that the system which the prosecution had followed to ascertain the income of the accused is wrong. Initially, the check period was from 10.05.1996 to 13.09.2001 which, during the investigation, was enlarged from 13.05.1996 to 31.03.2002. Not only this, according to the accused, the income was undervalued and the expenditures exaggerated. According to Respondent No. 1, the Minister, income of the  individual property of his wife and that of his mother-in-law and their expenditure ought not to have been shown as his property. According to him, the allegation that the properties in their names are his benami properties is wrong. It was also contended that the valuation of the properties has been arrived at without taking into consideration the entire income and expenditure of Respondent No. 1. Respondents have also alleged that the investigating officer, who is the informant of the case, had acted autocratically and his action is vitiated by  bias. The Special Judge examined all these contentions and by order dated 21st of July, 2004 discharged Respondents on its finding that the investigation was not conducted properly. The Special Judge further held that the value of the property of Respondent Nos. 2 to 5 ought not to have been clubbed with that of the individual properties and income of Respondent No. 1 and by doing so, the assets of Respondent No. 1 cannot be said to be disproportionate to his known sources of income. On the aforesaid finding the Special Judge discharged all the accused. Aggrieved by the same, the State of Tamil Nadu filed separate revision petitions and the High Court, by the impugned order, has dismissed all the revision petitions. The High Court, while affirming the order of discharge, held that the prosecution committed an error by adding the income of other respondents, who were assessed under the Income Tax Act, in the income of Respondent No.1. In the opinion of the High Court, an independent and unbiased scrutiny of the entire documents furnished along with the final report would not make out any ground of framing of charges against any of the accused persons. While doing so, the High Court has observed as follows:

“18. The assets which admittedly, do not belong to Accused 1 and owned by individuals having independent source of income which are assessed under the Income Tax Act, were added as the assets of Accused -1. Such a procedure adopted by the prosecution is not only unsustainable but also illegal. An independent and unbiased scrutiny of the entire documents furnished along with the final report would not make out any ground for framing of charge as against any of the accused persons. The methodology adopted by the prosecution to establish the disproportionate assets with reference to the known source of income is absolutely erroneous.

xxx                                                                               xxx                                                           xxx

The theory of Benami is totally alien to the concept of trust and it is not legally sustainable to array the accused 3 to 5 as holders of the properties or that they are the benamies of the accused. The benami transaction has to be proved by the prosecution by producing legally permissible materials of a bona fide character which would directly prove the fact of benami and there is a total lack of materials on this account and hence the theory of benami has not been established even remotely by any evidence. On a prima-facie evidence it is evident that the other accused are possessed of sufficient funds for acquiring their properties and that A1 has nothing to do with those properties and that he cannot be called upon to explain the source of income of the acquisition made by other persons.

19……… Admittedly the accused are not possessed of the properties standing in the name of Trust and controlled by the Accused A3 to A5. The trust is an independent legal entity assessed to income tax and owning the properties. Only to boost the value of the assets the prosecution belatedly arrayed the Trustees of the Trust as accused 3 to 5 in order to foist a false case as against A1.

xxx                                                                              xxx                                                                   xxx

21………All the properties acquired by A2 and A3 in their individual capacity acquired out of their own income have been shown in the Income Tax Returns, which fact the prosecution also knows and also available in the records of the prosecution. The prosecution has no justification or reason to disregard those income tax returns to disallow such income while filing the final report. The documents now available on record also would clearly disprove the claim of benami transaction.”

The High court ultimately concluded as  follows:

“24…………Therefore, the trial court analyzing the materials and documents that were made available at the stage of framing charges and on their face value arrived at the right conclusion that charges could not be framed against the respondents/accused.”

Now we proceed to consider the legal position cconcerning the issue of discharge and validity of the orders impugned in these appeals in the background thereof. Mr. Ranjit Kumar submits that  the order impugned suffers from patent illegality. He points out that at the time of  framing of the charge the scope is limited and what is to be seen at this stage is as to whether on examination of the materials and the documents collected, the charge can be said to be groundless or not. He submits that at this stage, the court cannot appraise the evidence as is done at the time of trial. He points out that while passing the impugned orders, the evidence has been appraised and the case of the prosecution has been rejected, as is done after the trial while acquitting the accused.

Mr. Sorabjee as also Mr. N.V. Ganesh appearing on behalf of the respondents-accused, however, submit that when the court considers the applications for discharge, it has to examine the materials for the purpose of finding out as to whether the allegation made is groundless or not. They submit that at the time of consideration of  an application for discharge, nothing prevents the court to sift and weigh the evidence for the purpose of ascertaining as to whether the allegations made on the basis of the materials and the documents collected are groundless or not. They also contend that the court while considering such an application cannot act merely as a post-office or a mouthpiece of the prosecution. In support of the submission, reliance has been placed on a decision of this Court in the case of Sajjan Kumar v. CBI, (2010) 9 SCC 368 and our attention has been drawn to Paragraph 17(4) of the judgment, which reads as follows:

“17. In Union of India v. Prafulla Kumar Samal & Anr., 1979 (3) SCC 4, the scope of Section 227 CrPC was considered. After adverting to various decisions, this Court has enumerated the following principles:

xxx xxx xxx

 (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”

Yet another decision on which reliance has been placed is the decision of this Court in the case of Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135, reference has been made to the following paragraph of the said judgment:

“12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”

We have bestowed our consideration to the  rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post-office and

may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative

value, it can frame the charge; though for  conviction, the court has to come to the  conclusion that the accused has committed the  offence. The law does not permit a mini trial at this stage. Reference in this connection can be  made to a recent decision of this Court in the  case of Sheoraj Singh Ahlawat & Ors. vs. State of  Uttar Pradesh & Anr., AIR 2013 SC 52, in which,  after analyzing various decisions on the point,  this Court endorsed the following view taken in  Onkar Nath Mishra v. State (NCT of Delhi), (2008) 2 SCC 561:

“11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the  facts emerging there from, taken  at their face value, disclosed  the existence of all the  ingredients constituting the  alleged offence. At that stage, the court is not expected to go  deep into the probative value of  the material on record. What  needs to be considered is whether  there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been  made out. At that stage, even strong suspicion founded on  material which leads the court to  form a presumptive opinion as to the existence of the factual  ingredients constituting the offence alleged would justify the framing of charge against the  accused in respect of the  commission of that offence."

Now reverting to the decisions of this Court  in the case Sajjan Kumar (supra) and Dilawar Balu Kurane (supra), relied on by the respondents, we  are of the opinion that they do not advance their case. The aforesaid decisions consider the  provision of Section 227 of the Code and make it clear that at the stage of discharge the Court can not make a roving enquiry into the pros and  cons of the matter and weigh the evidence as if  it was conducting a trial. It is worth  mentioning that the Code contemplates discharge  of the accused by the Court of Sessions under Section 227 in a case triable by it; cases  instituted upon a police report are covered by  Section 239 and cases instituted otherwise than  on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different  provisions with regard to discharge of an accused. Under Section 227 of the Code, the  trial court is required to discharge the accused if it “considers that there is not sufficient  ground for proceeding against the accused”.  However, discharge under Section 239 can be  ordered when “the Magistrate considers the charge  against the accused to be groundless”. The power to discharge is exercisable under Section 245(1) when, “the Magistrate considers, for reasons to  be recorded that no case against the accused has  been made out which, if not repudiated, would  warrant his conviction”. Section 227 and 239  provide for discharge before the recording of  evidence on the basis of the police report, the  documents sent along with it and examination of  the accused after giving an opportunity to the  parties to be heard. However, the stage of  discharge under Section 245, on the other hand,  is reached only after the evidence referred in  Section 244 has been taken. Thus, there is  difference in the language employed in these provisions. But, in our opinion, notwithstanding  these differences, and whichever provision may be  applicable, the court is required at this stage to see that there is a prima facie case for proceeding against the accused. Reference in  this connection can be made to a judgment of this   Court in the case of R.S. Nayak v. A.R. Antulay, (1986) 2 SCC 716. The same reads as follows:

“43………………Notwithstanding this  difference in the position there is no scope for doubt that the stage at which the magistrate is  required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of “prima facie” case has to be applied. In spite of the difference in the language of the three sections, the legal  position is that if the Trial  court is satisfied that a prima facie case is made out, charge has to be framed.”

Bearing in mind the principles aforesaid, we  proceed to consider the facts of the present case. Here the allegation against the accused Minister (Respondent No.1), K. Ponmudi is that while he was a Member of the Tamil Nadu Legislative Assembly and a State Minister, he had  acquired and was in possession of the properties in the name of his wife as also his mother-inlaw, who along with his other friends, were of  Siga Educational Trust, Villupuram. According to  the prosecution, the properties of Siga Educational Trust, Villupuram were held by other  accused on behalf of the accused Minister. These  properties, according to the prosecution, in fact, were the properties of K.Ponumudi. Similarly, accused N. Suresh Rajan has acquired properties disproportionate to his known sources  of income in the names of his father and mother. While passing the order of discharge, the fact that the accused other than the two Ministers  have been assessed to income tax and paid income tax cannot be relied upon to discharge the  accused persons particularly in view of the  allegation made by the prosecution that there was no separate income to amass such huge properties. The property in the name of an income tax  assessee itself cannot be a ground to hold that  it actually belongs to such an assessee. In case this proposition is accepted, in our opinion, it will lead to disastrous consequences. It will  give opportunity to the corrupt public servants to amass property in the name of known persons, pay income tax on their behalf and then be out  from the mischief of law. While passing the  impugned orders, the court has not sifted the  materials for the purpose of finding out whether or not there is sufficient ground for proceeding  against the accused but whether that would  warrant a conviction. We are of the opinion that  this was not the stage where the court should  have appraised the evidence and discharged the accused as if it was passing an order of  acquittal. Further, defect in investigation  itself cannot be a ground for discharge. In our  opinion, the order impugned suffers from grave  error and calls for rectification.

Any observation made by us in this judgment  is for the purpose of disposal of these appeals and shall have no bearing on the trial. The  surviving respondents are directed to appear before the respective courts on 3rd of February, 2014. The Court shall proceed with the trial  from the stage of charge in accordance with law and make endeavour to dispose of the same  expeditiously.

In the result, we allow these appeals and set  aside the order of discharge with the aforesaid  observation.

………………..……………………………….J.

(CHANDRAMAULI KR. PRASAD)

………………….……………………………………… J.

(M.Y. EQBAL)

NEW DELHI,

JANUARY 06, 2014.

DNA test as the accurate proof in a dispute over the parenthood of a child and a person cannot be forced to pay maintenance to such a child.

Held: Supreme Court held DNA test as the accurate proof in a dispute over the parenthood of a child and said a person cannot be forced to pay maintenance to such a child.  The Supreme Court held the proof based on scientific advancement “must prevail” over the definite proof envisioned under law and said it was correct to determine the parenthood of a person through a DNA test. It stressed that the result of DNA test was said to be scientifically accurate and it could not force a man to bear the fatherhood of a child when the scientific reports prove to the contrary.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.24 OF 2014

(@SPECIAL LEAVE PETITION (CRL.) No.8852 of 2008)

NANDLAL WASUDEO BADWAIK                                                  ..... APPELLANT

VERSUS

LATA NANDLAL BADWAIK & ANR                                       . ..... RESPONDENTS

J U D G M E N T: CHANDRAMAULI KR. PRASAD, J.

Petitioner happens to be the husband of respondent no. 1, Lata Nandlal Badwaik and alleged to be the father of girl child Netra alias Neha Nandlal Badwaik, respondent no. 2, herein. The marriage between them was solemnized on 30th of June, 1990 at Chandrapur. Wife filed an application for maintenance under Section 125 of the Code of Criminal Procedure, but the same was dismissed by the learned Magistrate by order dated 10th December, 1993. Thereafter, the wife resorted to a fresh proceeding under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the ‘Code’) claiming maintenance for herself and her daughter, inter alia, alleging that she started living with her husband from 20th of June, 1996 and stayed with him for about two years and during that period got pregnant. She was sent for delivery at her parents’ place where she gave birth to a girl child, the respondent no. 2 herein. Petitioner-husband resisted the claim and alleged that the assertion of the wife that she stayed with him since 20th of June, 1996 is false. He denied that respondent no. 2 is his daughter. After 1991, according to the husband, he had no physical relationship with his wife. The learned Magistrate accepted the plea of the wife and granted maintenance at the rate of Rs.900/- per month to the wife and at the rate of Rs.500/- per month to the daughter. The challenge to the said order in revision has failed so also a petition under Section 482 of the Code, challenging those orders.

It is against these orders, the petitioner has preferred this special leave petition.

Leave granted.

Taking note of the challenge to the paternity of the child, this Court by order dated 10th of January, 2011 passed the following order:

“…………However, the petitioner husband had challenged the paternity of the child and had claimed that no maintenance ought to have been awarded to the child. The petitioner had also applied for referring the child for DNA test, which was refused. It is

against the said order of refusal that the present Special Leave was filed and the same prayer for conducting the DNA test was made before us. On 8th November, 2010 we had accordingly, directed the petitioner-husband to deposit all dues, both arrear and current, in respect of the maintenance awarded to the wife and child to enable us to consider the prayer for holding of such DNA test. Such deposit having been made on 3rd January, 2011, we had agreed to allow the petitioner’s prayer for conducting DNA test for ascertaining the paternity of the child.

 

         We have since been informed by counsel for the parties that a Forensic Science Laboratory in Nagpur conducts the very same test, as has been asked for, by the Petitioner. Accordingly, we direct the petitioner-Nandlal Wasudeo Badwaik and the respondent No. 1-Ms. Lata Nandlal Badwaik to make a joint application to the Forensic Science Laboratory, Nagpur, situated at Jail Road, Dhantoli, for conducting such test. The petitioner, as well as the respondent No. 1, shall present themselves at the Laboratory with respondent No. 2 for the said purpose on the date to be fixed by the laboratory, and, thereafter, the laboratory is directed to send the result of such test to this Court within four weeks thereafter. The expenses for the test to be conducted shall be borne by the petitioner-husband.”

In the light of the aforesaid order, the Regional Forensic Science Laboratory, Nagpur has submitted the result of DNA testing and opined that appellant “Nandlal Vasudev Badwaik is excluded to be the biological father of Netra alias Neha Nandlal Badwaik”, respondent no. 2 herein.

Respondents, not being satisfied with the aforesaid report, made a request for re-test. The said prayer of the respondents was accepted and this Court by order dated 22nd of July, 2011 gave the following direction:

“Despite the fact that the report of the DNA Test conducted at the Regional Forensic Science Laboratory, State of Maharashtra, Nagpur-12, indicates that the petitioner is not the biological father of the respondent No. 2, on the prayer made on behalf of the respondents for a re-test, we are of the view that such a prayer may be allowed having regard to the serious consequences of the Report which has been filed. Accordingly, we direct that a further DNA Test be conducted at the Central Forensic Laboratory, Ministry of Home Affairs, Government of India at Hyderabad and for the said purpose the parties are directed to appear before the Laboratory on 24^th August, 2011 at 11.00 a.m.”

As directed, the Central Forensic Science Laboratory, Hyderabad submitted its report and on that basis opined that the appellant, “Nandlal Wasudeo Badwaik can be excluded from being the biological father of Miss Neha Nandlal Badwaik”, respondent no. 2 herein.

At the outset, Mr. Manish Pitale appearing for the respondents submits that the appellant having failed to establish that he had no access to his wife at any time when she could have begotten respondent no. 2, the direction for DNA test ought not to have

been given. In view of the aforesaid he submits that the result of such a test is fit to be ignored. In support of the submission he has placed reliance on a judgment of this Court in Goutam Kundu v. State of W.B., (1993) 3 SCC 418, relevant portions whereof

read as under:

“24. This section requires the party disputing the paternity to prove non-access in order to dispel the presumption. “Access” and “non-access” mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual “cohabitation”.

26. From the above discussion it emerges—

 (1) That courts in India cannot order blood test as a matter of course;

(2) wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained.

(3) there must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Evidence Act.

(4) the court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.

(5) no one can be compelled to give sample of blood for analysis.

27. Examined in the light of the above, we find no difficulty in upholding the impugned order of the High Court, confirming the order of the Additional Chief Judicial Magistrate, Alipore in rejecting the application for blood test…………….”

Yet another decision on which reliance has been placed is the decision of this Court in the case of Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449, paragraph 13, which is relevant for the purpose is quoted below:

“13. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Evidence Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above. (See Kamti Devi v. Poshi Ram, 2001 (5) SCC 311.)”

Reliance has also been placed on a decision of this Court in the case of Bhabani Prasad Jena v. Orissa State Commission for Women, (2010) 8 SCC 633, in which it has been held as follows:

“22. In our view, when there is apparent conflict between the right to privacy of a person not to submit himself forcibly to medical examination and duty of the court to reach the truth, the court must exercise its discretion only after balancing the interests of the parties and on due consideration whether for a just decision in the matter, DNA test is eminently needed. DNA test in a matter relating to paternity of a child should not be directed by the court as a matter of course or in a routine manner, whenever such a request is made. The court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need” whether it is not possible for the court to reach the truth without use of such test.”

Miss Anagha S. Desai appearing on behalf of the appellant submits that this Court twice ordered for DNA test and, hence, the question as to whether this was a fit case in which DNA profiling should or should not have been ordered is academic. We find substance in the submission of Ms. Desai. Fact of the matter is that this Court not only once, but twice gave directions for DNA test. The respondents, in fact, had not opposed the prayer of DNA test when such a prayer was being considered. It is only after the reports of the DNA test had been received, which was adverse to the respondents, that they are challenging it on the ground that such a test ought not to have been directed. We cannot go into the validity of the orders passed by a coordinate Bench of this Court at this stage. It has attained finality. Hence, we do not find any merit in the submission of the learned counsel for the respondents. As regards the decision of this Court in the cases of Goutam Kundu (supra), Banarsi Dass (supra) and Bhabani Prasad Jena (supra), the same have no bearing in the facts and circumstances of the case. In all these cases, the court was considering as to whether facts of those cases justify passing of an order for DNA test. When the order for DNA test has already been passed, at this stage, we are not concerned with this issue and we have to proceed on an assumption that a valid direction for DNA test was given.

Ms. Desai submits that in view of the opinions, based on DNA profiling that appellant is not the biological father, he cannot be fastened with the liability to pay maintenance to the girl-child born to the wife. Mr. Pitale, however, submits that the marriage between the parties has not been dissolved, and the birth of the child having taken place during the subsistence of a valid marriage and the husband having access to the wife, conclusively prove that the girl-child is the legitimate daughter of the appellant. According to him, the DNA test cannot rebut the conclusive presumption envisaged under Section 112 of the Evidence Act. According to him, respondent no. 2, therefore, has to be held to be the appellant’s legitimate daughter. In support of the submission, reliance has been placed on a decision of this Court in the case of Kamti Devi v. Poshi Ram,  (2001) 5 SCC 311, and reference has been made to paragraph 10 of the judgment, which reads as follows:

“10. ………The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardised if his mother and her spouse were living together during the time of conception……….”

Before we proceed to consider the rival submissions, we deem it necessary to understand what exactly DNA test is and ultimately its accuracy. All living beings are composed of cells which are the smallest and basic unit of life. An average human body has trillion of cells of different sizes. DNA (Deoxyribonucleic Acid), which is found in the chromosomes of the cells of living beings, is the blueprint of an individual. Human cells contain 46 chromosomes and those 46 chromosomes contain a total of six billion base pair in 46 duplex threads of DNA. DNA consists of four nitrogenous bases – adenine, thymine, cytosine, guanine and phosphoric acid arranged in a regular structure. When two unrelated people possessing the same DNA pattern have been compared, the chances of complete similarity are 1 in 30 billion to 300 billion. Given that the Earth’s population is about 5 billion, this test shall have accurate result. It has been recognized by this Court in the case of Kamti Devi (supra) that the result of a genuine DNA test is scientifically accurate. It is nobody’s case that the result of the DNA test is not genuine and, therefore, we have to proceed on an assumption that the result of the DNA test is accurate. The DNA test reports show that the appellant is not the biological father of the

girl-child.

Now we have to consider as to whether the DNA test would be sufficient to hold that the appellant is not the biological father of respondent no. 2, in the face of what has been provided under Section 112 of the Evidence Act, which reads as follows:

“112. Birth during marriage, conclusive proof of legitimacy.- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

From a plain reading of the aforesaid, it is evident that a child born during the continuance of a valid marriage shall be a conclusive proof that the child is a legitimate child of the man to whom the lady giving birth is married. The provision makes the legitimacy of the child to be a conclusive proof, if the conditions aforesaid are satisfied. It can be denied only if it is shown that the parties to the marriage have no access to each other at any time when the child could have been begotten. Here, in the present case, the wife had pleaded that the husband had access to her and, in fact, the child was born in the said wedlock, but the husband had specifically pleaded that after his wife left the matrimonial home, she did not return and thereafter, he had no access to her. The wife has admitted that she had left the matrimonial home but again joined her husband. Unfortunately, none of the courts below have given any finding with regard to this plea of the husband that he had or had not any access to his wife at the time when the child could have been begotten.

As stated earlier, the DNA test is an accurate test and on that basis it is clear that the appellant is not the biological father of the girl-child. However, at the same time, the condition precedent for invocation of Section 112 of the Evidence Act has been established and no finding with regard to the plea of the husband that he had no access to his wife at the time when the child could have been begotten has been recorded. Admittedly, the child has been born during the continuance of a valid marriage. Therefore, the provisions of Section 112 of the Evidence Act conclusively prove that respondent No. 2 is the daughter of the appellant. At the same time, the DNA test reports, based on scientific analysis, in no uncertain terms suggest that the appellant is not the biological father. In such circumstance, which would give way to the other is a complex question posed before us.

We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.

We must understand the distinction between a legal fiction and the presumption of a fact. Legal fiction assumes existence of a fact which may not really exist. However presumption of a fact depends on satisfaction of certain circumstances. Those circumstances logically would lead to the fact sought to be presumed. Section 112 of the Evidence Act does not create a legal fiction but provides for presumption.

The husband’s plea that he had no access to the wife when the child was begotten stands proved by the DNA test report and in the face of it, we cannot compel the appellant to bear the fatherhood of a child, when the scientific reports prove to the contrary. We are conscious that an innocent child may not be bastardized as the marriage between her mother and father was subsisting at the time of her birth, but in view of the DNA test reports and what we have observed above, we cannot forestall the consequence. It is denying the truth. “Truth must triumph” is the hallmark of justice.

As regards the authority of this Court in the case of Kamti Devi (Supra), this Court on appreciation of evidence came to the conclusion that the husband had no opportunity whatsoever to have liaison with the wife. There was no DNA test held in the case. In the said background i.e. non-access of the husband with the wife, this Court held that the result of DNA test “is not enough to escape from the conclusiveness of Section 112 of the Act”. The judgment has to be understood in the factual scenario of the said case. The said judgment has not held that DNA test is to be ignored. In fact, this Court has taken note of the fact that DNA test is scientifically accurate. We hasten to add that in none of the cases referred to above, this Court was confronted with a situation in which DNA test report, in fact, was available and was in conflict with the presumption of conclusive proof of legitimacy of the child under Section 112 of the Evidence Act. In view of what we have observed above, these judgments in no way advance the case of the respondents.

In the result, we allow this appeal, set aside the impugned judgment so far as it directs payment of maintenance to respondent no. 2. However, we direct that the payments already made shall not be recovered from the respondents.

........................J

[CHANDRAMAULI KR. PRASAD]

.......................J

[JAGDISH SINGH KHEHAR]

NEW DELHI

JANUARY 06, 2014

Bail - N.D.P.S. Act,1985:Sections 36 and 37(2)-Special Courts-Powers to grant bail/ Restrictions- Whether to be treated as fetters on High Court to grant bail under s. 439, Cr. P.C.

Supreme court of india

BENCH: PANDIAN, S.R. (J) & REDDY, K. JAYACHANDRA (J)

On 29.01.1991

NARCOTICS CONTROL BUREAU :   PETITIONER

Vs.

KRISHAN LAL AND OTHERS   RESPONDENT

CITATION: 1991 AIR 558 1991 SCR (1) 139, 1991 SCC (1) 705 JT 1991 (1) 258, 1991 SCALE (1)97

ACT:

             Narcotic Drugs and Psychotropic Substances Act, 1985:Sections 36 and 37(2)-Special Courts-Powers to grant bail-Restrictions- Whether to be treated as fetters on High Court to grant bail under s. 439, Cr. P.C.

             Code of Criminal Procedure 1973: Section 439-Bail-High Court’s power-Whether restricted by s. 37(2) of the Narcotics Drugs and Psychotropic Substances Act, 1985.

HEADNOTE:

               The respondents in the appeals who were arrested for offences under various sections of the narcotic Drugs and Psychotropic Substances Act, 1985, were refused bail, and were remanded to judicial custody. On the basis of the report the Magistrate took cognizance, and remanded them to judicial custody.

                 The respondents filed writ petition and criminal miscellaneous petition before the High Court seeking bail under s. 167(2), Criminal Procedure Code on the grounds of belated submission of the charge sheet , and on account of illness. The matter was referred to a Division Bench held that the limitations placed on the Special Court under s. 37 (2) of the Narcotic Drugs and Psychotropic Substances Act could not be read as fetters on the High Court in exercise of its power under s. 439, Cr.P.C. to grant bail.

                   Aggrieved, the Narcotics Control Bureau appealed to this Court, and contended that the High Court had no untrammeled powers in the matter of granting bail, as the provisions of s. 37 of the NDPS Act override those of s. 439, Cr. P.C.

                    On the question: whether the limitation placed on the Special Court under s. 37(2) of the NDPS Act is to be treated as fetters on the powers of the High Court also in granting bail under s. 439, Cr. P.C.

                     Disposing of the appeals, this Court,

HELD:

1.       The powers of the High Court to grant bail under s. 439, Cr. p.C. are subject to the limitations contained in the amended s.37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and the restrictions placed on the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail.

2.       When there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with offences, the other powers under the Code of Criminal Procedure should be subject to such special enactment. In interpreting the scope of such a statute the dominant purpose underlying the statute has to be borne in mind.

3.       (a)  The Narcotic Drugs and Psychotropic Substances Act, 1985 is a special enactment, enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. That being the underlying object and particularly when the provisions of s.37 of the NDPS Act are in negative terms limiting the scope of the applicability of the provisions of the Criminal Procedure Code regarding bail, it cannot be said that the High Court’s power to grant bail under s. 439, cr. P.C. are not subject to the limitation mentioned under s. 37 of the NDPS Act.

(b)        Section 37 of the NDPS Act starts with a no obstinate clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied.

(c)     The non-obstante clause with which s. 37 of the NDPS Act starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail.

(d)    In case of inconsistency between s. 439, Cr. P.C. and S.37 of the NDPS Act, s. 37 prevails.

(e)    Consequently the power to grant bail under any of the provisions of the Code of Criminal Procedure should necessarily be subject to the conditions mentioned in s. 37 of the NDPS Act. Lt. Col. Prithi Pal Singh Bedi etc. v. Union of India & Others, [1983] 1 SCR 393 and Balchand Jain v. State of Madhya Pradesh, [1977] 2 SCR page 52, relied on. Usmanbhai Dawoodbhai Memon and Others v. State of Gujarat, [1988] 2 SCC 271, referred to.

4.       The two accused-respondents being on bail for a long time under the orders of the High Court and the Narcotics Control Bureau not passing the cancellation of bail, the matter need not be remitted to the High Court, and the respondents would continue to be on bail.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 810-811 of 1989. From the Judgement and Order dated 22.9.1989 of the Delhi High Court in Crl. W.P. No. 622 of 1988 and Crl. Misc. Main Petition No. 1132 of 1988. J.S. Arora, Sudhansu S. Das, Satish Agrawal and N.P. Kaushik for the Appellant. V.C. Mahajan, A.K. Ganguli Ashok Bhan, A. Subhashini, P.P.. Tripathi and S.K. Sabharwal for the Respondents. The Judgement of the Court was delivered by K. JAYACHANDRA REDDY, J. The High Court of Delhi by a common order in two petitions filed under The Narcotic Drugs & Psychtropic Substances Act, 1985 (‘NDPS Act’ for short) held that the restrictions placed on the powers of the Court to grant bail in certain offences under the amended Section 37 of the NDPS Act are not applicable to the High Court. Aggrieved by the said order, the Narcotic Control Bureau has filed these two appeals.

              The peritioners before the High Court in two different cases were arrested for offences under various Sections of the NDPS Act. They were refused bail and remanded to judicial custody. On the basis of the report the Magistrate concerned took cognizance and remanded them to judicial custody. The petitioners filed a writ petition as well as a  criminal miscellaneous petition seeking bail firstly on the ground that they are entitled to be released on bail as required under Section 167(2) of the Code of Criminal Procedure as the charge-sheet was filed at a belated stage and secondly on the ground of illness. A learned Single Judge referred this matter to a Division Bench and the Division Bench by the impugned order held that the limitations placed on the Special Court under Section 37(2) of the NDPS Act cannot be read as fetters on the High Court in exercise of powers under Section 439 Cr. P.C. for granting bail. The only limited question to be decided in these appeals is whether the view taken by the High Court is right or wrong and we may also mention that leave was granted only to this limited extent.

               The learned counsel appearing for, the appellants submitted that the High Court has misconstrued the provisions of Section 36-A and 37 of the NDPS Act and that latter Section as amended starts with the non-obstante clause limiting the scope of provisions of the Cr.P.C. in the matter of granting bail and as such the High Court has no untrammeled powers to grant bail inasmuch as the provisions of the amended Section 37 of the NDPS Act override the provisions of Section 439 Cr. P.C.

                 We may at this stage note the relevant provisions of NDPS Act. The preamble to the NDPS Act shows that the object of the Act is to consolidate and amend the law relating to narcotic drugs and to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances etc. Sections 15 to 35 deal with various offences and penalties. Section 36 provides for constitution of Special Courts and empower the Government to constitute Special Courts and a person shall not be qualified for appointment as a Judge of the Special Court unless he is immediately before such appointment, a Sessions Judge or an Additional Sessions Judge. Section 36-A enumerates the offences triable by Special Courts and also deals with the procedure regarding the detention of the accused when produced before a Magistrate. Sub-section (b) of Section 36-A lays down that if the Magistrate to whom an accused is forwarded under Section 167 Cr. P.C., considers that the detention of such person for fifteen days is unnecessary he shall forward him to the Special Court having jurisdiction who shall take cognizance and proceed with the trial. Sub-section (3) of Section 36-A reads thus:

"Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "magistrate" in that section included also a reference to a "Special Court" constituted under Section 36."

Now let us note Section 37 as amended in the year 1989 and the same is in the following terms:

"37. Offences to be cognizable and non-bailable-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-

(i) The Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor oppose the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The ,limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the law being in force on granting of bail."

Now it becomes necessary to extract Section 439 Cr. P..C. which reads as under:

"439. Special powers of the High Court or Court of Section regarding bail--(1) A High Court or Court of Session may direct--

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437 , may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a magistrate when releasing any person on bail be set aside or modified;

       Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused on an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give noticeof the application for bail to the Public prosecutor unless it is, for reason to be recorded in writing , of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."

         The High Court having taken into consideration subsection (3) of Section 36-A took the view that the limitations placed on the Special Courts cannot be read as fetters in its exercise of the powers under Section 439 Cr.P.C. In this context, the Division Bench referred to to subsections(8) and (9) of Section 20 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (’TADA Act’ for short) which are similar to Section 37 of NDPS Act and also relied on a judgment of this Court in Usmanbhai Dawoodbhai Memon and Others v. State of Gujarat, [1988] 2 SCC 271 a case which arose under the TADA Act. We shall refer to this judgment at a later stage after analysing the scope and effect of Section 37 of NDPS Act.

               Section 37 as amended starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The NDPS Act is a special enactment as already noted it was enacted with a view to make stringent provision for the control and regulation of operations relating to narcotic drugs and psychotropic substances. The being the underlying object and particularly when the provisions of Section 37 of NDPS Act are in negative terms limiting the scope of the applicability of the provisions of Cr. P.C. regarding bail, in our view, it cannot be held that the High Court’s powers to grant bail under Section 439 Cr. P.C. are not subject to the limitation mentioned under Section 37 of NDPS Act. The non-obstante clause with which the Section starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconistency between Section 439 Cr. P.C. and Section 37 of the NDPS Act, Section 37 prevails. In this context Section 4 Cr. P.C. may be noted which read thus:

"(4) Trial of offences under the Indian Penal Code and other laws—

(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provision hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provision, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."

             It can thus be seen that when there is a special enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offences, the other powers under Cr. P.C. should be subject to such special enactment. In interpretating the scope of such a statute the dominant purpose underlying the statute has to be borne in mind. In Lt. Col. Prithi Pal Singh Bedi etc. v. Union of India & Others, [1983] 1 SCR 393 regarding the mode of interpretation the Supreme Court observed as follows:

"The dominant purpose in construing a statute is to ascertain the intention of Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision, the Court should adopt literal construction if it does not lead to an absurdity."

               As already noted, Section 37 of the NDPS Act starts with a non-obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein are satisfied. Consequently the power to grant bail under any of the provisions of Cr. P.C. should necessarily be subject to the conditions mentioned in Section 37 of the NDPS Act.

             We shall now refer to some of the decisions of the Court dealing with the analogous provision in other special enactments. Rule 184 of the Defense and Internal Security of India Rules, 1971 which is analogous to Sec. 37 of the NDPS Act runs as follows:

"Rule 184. Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898) no person accused or convicted of a contravention of these Rules or orders made there under shall, if in custody, be released on bail or his own bond unless--

(a) the prosecution has been given an opportunity to opposed the application for such release, and

(b) where the prosecution opposes the application and the contravention is of any such provision of these Rules or orders made there under as the Central Government or the State Government may be notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention."

               The Rule commences with a non-obstante clause and in its operative part imposes a ban on release on bail of a person accused or convicted of a contravention of the Rules. It imposes fetters on the exercise of the power of granting bail in certain kinds of cases. In Balchand Jain v. State of Madhya Pradesh, [1977] 2 SCR 52 a question arose whether the power to grant anticipatory bail under Section 438 can stand side by side with Rule 184 of whether former provision is overridden by the latter. This Court held that Rule 184 does not stand in the way of Court of Session or High Court granting anticipatory bail on the ground that the two provision operate at two different stages. Of course, in the instant case, we are not concerned with Section 438 but the observation regarding the scope of Rule 184 are relevant which read thus:

"But even if Rule 184 does not apply in such a case, the policy behind this Rule would have to be borne in mind by the Court while exercising its power to grant ’anticipatory bail’ under Section 438. The Rule making authority obviously though offences arising out of contravention of Rules and orders made there-under were serious offences as they might imperil the defense of India or civil defense or internal security or public safety or maintenance of public order or hamper maintenance of supplies and services to the life of the community and hence it provided in Rule 184 that no person accused or convicted or contravention of any Rule or order made under the Rules, shall be-

released on bail unless the prosecution is given an opportunity to oppose the application for such release and in case the contravention is of a Rule or order specified in this behalf in a notified order, there are reasonable grounds for believing that the person concerned is not guilty of such contravention. If these are the conditions provided by the Rule making authority for releasing on bail a person arrested on an accusation of having committed contravention of any Rule or order made under the Rules, it must follow a fortiori that the same conditions must provide the guidelines while exercising the power to grant ’anticipatory bail’to a person apprehending arrest on such accusation, though they would not be strictly applicable."

(emphasis supplied)

Fazal Ali, J. in his concurring judgment also held thus:

"(4)_that in cases covered by r. 184 of the Rules the Court exercising power under s. 436 or s. 438 of the Code has go to comply with the conditions mentioned in clauses (a) & (b) of r. 184 and only after the Court has complied with those conditions that an order under any of these section of the Code in respect of such offences could be passed."

In Usmanbhai’s case a question whether the provisions of sub-sections (8) and (9) of Section 20 of the TADA Act limit the scope of Sections 437 and 439, came up for consideration. The language of sub-sections (8) and (9) of section 20 is analogous to Section 37 of NDPS Act and they read thus:

"(8) Notwithstanding anything contained in the Code, no person accused on an offence punishable under this Act or any rule made thereunder shall, if in custody, if in custody, be released on bail or on his own bond unless--

(a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(9) The limitation on granting of bail specified in sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force or granting of bail."

               It may be noted at this stage that the power of the High Court or the Sessions Court to grant anticipatory bail has been completely taken away under Section 20(7) of the TADA Act. The contention was that the sources of power of a designated court to grant bail is under Section 437 subject to some limitations under Section 20(8) and that it does not in any manner affect the power of the High Court independently under Section 439 to grant bail. It is also  contended that to take away the power of the High Court would tantamount to strike at the very foundation of an independent judiciary free from executive control. After considering these submissions this Court held that:

"Though there is no express provision excluding the applicability of Section 439 of the Code similar to the one contained in Section 20(7) of the Act in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made there under, but that result must, by necessary implication, follow. it is true that the source of power of a Designated Court to grant bail is no Section 20(8) of the Act as it only places limitations on such power. This is made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(8) are ’in addition to the limitations under the Code or any other law  for the time being in force’. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code. it cannot be doubted that a Designated Court is ’a court other than the High Court or the Court of Session’ within the meaning of of section 437 of the Code. The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to the limitations placed by Section 20(8) of the Act."

 (emphasis supplied)

              Having held so, the learned Judge proceeded to consider the controversy as to the power of the High Court to grant bail under Section 439 Cr. P.C. Act excluding the jurisdiction of the High Court entertain an appeal or revision against the judgment of the designated court, it is held that the High Court had no jurisdiction to entertain an application for bail under Section 439 or Section 482 of the Code of Criminal procedure. however, regarding the construction of non-obstante clause in Sec. 20(8) of the Act, this Court held as under:

"The controversy as to the power of the High Court to grant bail under Section 439 of the Code must also turn on the construction of Section 20(8) of the Act. It commences with a non-obstante clause and in its operative part by the use of negative language prohibits the enlargement on bail of any person accused of commission of an offence under the Act, if in custody, unless two conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application for such release and the second condition is that where there is such opposition, the court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. If either of these two conditions is not satisfied, the ban operates and the person under detention cannot be released on bail. it is quite obvious that the source of power of a Designated Court to grant bail is not section 20(8) of the Act but it only places limitations on such powers. This is implicit by Section 20(9) which in terms provides that the limitations or granting of bail specified in subsection (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail. it therefore follows that the power derived by a Designated Court to grant bail to a person accused of an offence under the Act, if in custody, is derived from the Code and not from section 20(8) of the Act.”

           It can thus be seen that even in Usman bhai’s case also there is no observation supporting the view taken by the High Court in the impugned judgment. As a matter of fact in Usmanbhai’s case Sen, J. who spoke for the Bench, after referring to the ratio laid down in Balchand Jain’s case observed thus:

"The view expressed in Balchand Jain case is not applicable at all for more than one reason. There was nothing in the defense and Internal Security of India Act or the Rules framed there-under which would exclude the jurisdiction and power of the High Court altogether. On the contrary, Section 12(2) of that Act expressly vested in the High Court the appellate jurisdiction in certain specified cases. In view of the explicit bar in Section 19(2), there is exclusion of the jurisdiction of the High Court. It interdicts that no appeal or revision shall lie to any court, including the High Court, against any judgment, sentence or order, not being an interlocutory order, of a Designated Court. The Act by Section 16(1) confers the right of appeal both on facts as well as on law to the Supreme Court. Further while it is true that Chapter XXXIII of the Code is still preserved as otherwise the Designated Court would have no power to grant bail, still the source of power is not Section 439 of the Code but Section 437 being a court other than the High Court or the Court of Session. Any other view would lead to an anomalous situation. If it were to be held that the power of a Designated Court to grant bail was relatable to Section 439 it would imply that not only the High Court but also the High Court of Session would be entitled to grant bail on such terms as they deem fit. The power to grant bail under Section 439 is unfettered by any conditions and limitations like Section 437. It would run counter to the express prohibition contained in Section 20(8) of the Act which enjoins that notwithstanding anything in the code, no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail unless the conditions set forth in clauses (a) and (b) are satisfied."

(emphasis supplied)

The High Court in the impugned judgment, however, referred to Usmanbhai’s case and held that the limitations placed under Section 37 of the NDPS Act are exactly similar to the ones in sub-section (8) and (9) of Section 20 of the TADA Act and they are applicable only to special courts. But we may point out that in paragraph 16 in Usmanbhai’s case it is observed:

"As a murder of construction, we must accept the contention advanced by learned counsel appearing for the State Government that the Act being a special Act must prevail in respect of the jurisdiction and power of the High Court to entertain an application for bail under section 439 of the Code or by recourse to its inherent powers under section 482."

However, as already mentioned, the learned Judges held that the view expressed in Balchand Jain’s case is not applicable to the facts in Usmanbhai’s case and the same is clear from the observations made in Usmanbhai’s case which read as under:

"Lastly both the decision in Balchand Jain and that in Ishwar Chand turn on the scheme of the Defense and Internal Security of India Act, 1971. They proceed on the well recognised principle that an outer of jurisdiction of the ordinary courts is not to be readily inferred, except by express provision or by necessary implication. It all depends on the scheme of the particular Act as to whether the power of the High Court and the Court of Session to grant bail under Sections 438 and 439 exists. We must accordingly uphold the view expressed by the High Court that it had no jurisdiction to entertain an application for bail under Section 439 or under Section 482 of the Code"

           From the above discussion it emerges that in Usmanbhai’s case the Supreme Court did not express anything contrary to what has been observed in Balchand Jain’s case and on the other hand at more than one place observed that such enactments should prevail over the general enactment and the non-obstante clause must be powers of the High Court to grant bail under Section 439 are subject to the limitations contained in the amended Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under the said section are applicable to the High Court also in the matter of granting bail. The point of law is ordered accordingly.

           The two accused respondents in these two appeals have been on bail pursuant to the order of the High Court, for a long time. The learned counsel appearing for the Narcotics Control Bureau, the appellant herein, is also not pressing cancellation of the bail. Therefore, we are not remitting the matters of the High Court for fresh consideration. Pending the proceedings, they would continue to be on bail.

      Subject to the above clarification of law, the appeals are disposed of.