Shibbu @ Shiv Prasad Vs. State of U.P. - Court Judgment

Excerpt:
- mining direction to state government to consider all applications afresh in light of interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules main issue : whether the state government's recommendation dated 06.12.2004 and the proceedings of the chief minister are contrary to the provisions of section 11 of the act and rules 59 and 60 of mc rules and not valid in law. a perusal of the proceedings of the chief minister shows that no clear reasons were given to show as to why jindal and kalyani were preferred over other applicants.[para 18]--the proceedings of the chief minister, at no level, consider the various guiding criteria mentioned in section 11(3)[para 19] b) whether the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003 is capable of being entertained along with the applications made pursuant to the said notification -- applications made prior to the notification cannot be entertained because they are premature.[para 21] if such premature applications are allowed to be entertained, it would result in the state government giving out mining leases to favoured persons without notice to the general public.[para 53] c) whether the order of the high court of karnataka in ziaulla sharieff's case permit the consideration of the respondent-jindal's application dated 24.10.2002 made prior to the notification dated 15.03.2003. the order of the high court of karnataka in ziaulla sharieff's case does not permit the consideration of jindal's application dated 24.10.2002 which was made prior to the notification dated 15.03.2003.[para 42] d) whether rule 35 of the mc rules justify the recommendation of the state government in favour of the respondents-jindal and kalyani -- as discussed above, rule 35 only permits the state government to take additional factor of the "end use" of the minerals and not the existing investments made by the applicants. moreover, relying on the existing investments made, the respondents also does not satisfy the requirements under section 11(3)(d) which talks solely about proposed investments to be made and not the existing ones.[para 44] e) whether the criterion of "captive consumption" referred to in tata iron and steel co. ltd. vs. union of india, (1996) 9 scc 709, have any application in this case despite not being one of the factors referred to in section 11 (3) of the mmdr act or rule 35 of the mc rules -- we have already held that section 11(3) specifies the matter relevant for purposes of second proviso to section 11(2). we also referred to the committee's report. in accordance with the recommendation in the said report, section 11(3)(d) was added as part of the substitution of section 11 in the year 1999. sub-section (d) provides that "the investment which the applicant proposes to make in the mines and in the industry based on minerals" and it speaks about investment proposed to be made and not past investments. thus it confines the concept of "captive consumption of minerals to proposed investment and not past investments". even the residuary clauses in section 11(3)(e) are limited to "matters as may be prescribed", which would necessarily mean matters prescribed by rules. this is fortified by decision of this court in bsnl ltd. & anr. vs. bpl mobile cellular ltd. & ors., (2008) 13 scc 597, para 45.[para 35] f) whether factors such as the past commitments by the state government to applicants who have already set up steel plants, matter for consideration for grant of lease despite the mmdr act and the mc rules constituting a complete code -- it is not open to the state government to justify grant based on criteria that are de hors to the mmdr act and the mc rules. the exercise has to be done strictly in accordance with the statutory provisions and if there is any deviation, the same cannot be sustained. it is the normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself.[para 28] in view of the specific parliamentary declaration as discussed and explained by this court in various decisions, there is no question of the state having any power to frame a policy de hors the mmdr act and the rules.[para 25] central and the state government act as mere delegates of parliament while exercising powers under the mmdr act and the mc rules.[para 27] g) whether the recommendation in favour of respondents-jindal and kalyani saved by the operation of the law of equity. the law of equity cannot save the recommendation in favour of jindal and kalyani because it is a well settled principle that equity stands excluded when a matter is governed by statute. this principle was clearly stated by this court in the cases of kedar lal vs. hari lal sea, (1952) scr 179 at 186 and raja ram vs. aba maruti mali (1962) supp. 1 scr 739 at 745. it is clear that where the field is covered expressly by section 11 of the mmdr act, equitable considerations cannot be taken into account to assess jindal and kalyani, when the recommendation in their favour is in violation of statute.[para 50] h) whether the learned single judge as well as the division bench are justified in arriving at such conclusion. though the learned single judge in his order dated 07.08.2008 quashed the communication/recommendation of the state government dated 06.12.2004 proposing to grant mining lease to jindal and kalyani, however, the learned single judge traveled much beyond the reliefs sought for in the writ petition and quashed the entire notification no. ci.16:mmm.2003 dated 15.03.2003. in our view, while approving earlier part of his order and quashing the communication/recommendation of the state government dated 06.12.2004, the other observations/directions are not warranted in the light of the provisions of the act and the rules. the said observations/directions are deleted.[para 55] the division bench has erred in concluding that the jindal's application made prior to the notification can be entertained along with the applications made pursuant to the said notification because it is not section 11(4) which covers the said notification under rule 59(1) but the first proviso to section 11(2). as a matter of fact, the division bench did not even mention section 11(4) in its reasoning apart from stray references even though the conclusion of the learned single judge hinged on how section 11(4) would be rendered otiose and redundant if the first proviso to section 11(2) was taken as governing the consideration of applications under a notification pursuant to rule 59(1) [para 52] i) whether it is advisable to remit it to the central government. [para 6] the central government considers only the materials forwarded by the state government along with its recommendation. as rightly pointed out, if the recommendation of the state government cannot be upheld in law, all consequential orders including the subsequent approval by the central government are also liable to be quashed. we reject the request for remitting the matter to the central government for its decision. --[para 56] held : in the light of the above discussion, the impugned order of the division bench of the high court dated 05.06.2009 in writ appeal no. 5084 of 2008 and allied matters as well as the decision of the state government dated 26/27.02.2002 and the subsequent decision of the central government dated 29.07.2003 are quashed. we direct the state government to consider all applications afresh in light of our interpretation of section 11 of the act and rules 35, 59 and 60 of mc rules and make a recommendation to the central government within a period of four months from the date of receipt of the copy of this judgment. it is made clear that we have not expressed anything on the eligibility or merits of any of the parties before us and our conclusion as to the decision of the state government is based on the interpretation of the statutory provisions mentioned above for which we adverted to certain factual details of the parties. the state government is free to consider the applications and take a decision one way or other in accordance with law, as discussed above, within the time scheduled. all the appeals are allowed to the extent mentioned above. no costs.[para 57,58]dharam veer, j.1. this appeal, preferred by the appellant under section 374(2) of the code of criminal procedure, 1973 (hereinafter referred to as cr.p.c.), is directed against the judgment and order dated 10.3.1995 passed by the sessions judge, tehri garhwal in sessions trial no. 7/1993, state v. mahesh and ors. whereby the learned sessions judge has convicted the appellant accused shibbu @ shiv prasad under section 376 of indian penal code, 1860 (for short, ipc) and sentenced him to undergo r.i. for a period of 3 years. co-accused mahesh and suresh have also been convicted under section 363 & 366 ipc and were sentenced to 3 years' r.i. each under section 363 & 366 ipc. co-accused mahesh has also been convicted under section 376 ipc and was sentenced to undergo r.i. for 3 years for the said offence. however, the present appeal has been preferred by shibbu @ shiv prasad only.2. in brief, the prosecution case is that the informant narendra datt bahuguan lodged an fir on 3.9.1992 at 6.10 pm with the averments that he was working as a watchman since many years at shivanand ashram, ps muni-ki-reti, district tehri garhwal and was living in a quarter along with his 12 years' old daughter km. soni devi. in another room situated in the vicinity of the informant's room, there lived co-accused mahesh of village pakri, district balia, who was working as a labourer at muni-ki-reti. he used to occasionally offer some eatables to km. soni devi (pw1). in the morning of 3.9.1992, when informant woke up at about 4 am, he found that his daughter km. soni devi was missing from the house. he found that co-accused mahesh was also missing from his room. he tried to search them but there was no trace of her daughter and mahesh. then he lodged the report ex. ka-5 with ps muni-ki-reti stating his apprehension that co-accused mahesh might have took her daughter by enticing her. on the basis of the report ex. ka-5, chick fir ex. ka-6 was prepared by head moharrir hari singh (pw7). he also made the necessary entries in the gd. copy of gd is ex. ka-7.3. investigation of this case was entrusted to si genda singh verma (pw9). subsequently the investigation was transferred to si gp shukla (pw8). on 6.9.1992, an information was received from sp, balia regarding the recovery of victim km. soni devi (pw1) from there on 5.9.1992. recovery memo is ex. ka-4. the i.o. then deputed si mithilesh kumar and lady constable savitri panwar (pw5) to balia, who took custody of km. soni devi from balia police and then brought her to ps muni-ki-reti on 10.9.1992. statement under section 164 crpc of the victim km. soni devi could be recorded only on 18.9.1992 at narendranagar. the appellant accused and co-accused mahesh and suresh were arrested by the police. on 20.9.1992, km. soni devi was given in the supardgi of her father narendra datt bahuguna. the girl was medically examined at dw hospital, balia by dr. shashikala singh (pw2) on 6.9.1992 at 3.15 pm, who prepared the medical report ex. ka-1 and advised x-ray. x-ray was done by the radiologist dr. ramesh sharma (pw3), who prepared the x-ray report ex. ka-3. on the receipt of the x-ray report, pw2 dr. shashikala singh prepared the supplementary report ex. ka-2.4. the i.o. genda singh verma stood transferred after 20.9.1992 and thereafter further investigation was done by si gp shukla (pw8). he inspected the place of recovery and prepared the site plan ex. ka-8 on the pointing out of the witnesses. he also recorded the statements of the witnesses during the course of investigation and after competing the investigation filed the chargesheet ex. ka-9 against the appellant accused and the co-accused.5. learned chief judicial magistrate, tehri after giving the necessary copies of the documents to the accused appellant and the co-accused as prescribed under section 207 cr.p.c., committed the case to the court of sessions on 20.1.1993.6. on 27.7.1993, learned sessions judge framed the charge against the accused appellant shibbu @ shiv prasad under section 376 ipc. on the same day, charges were also framed against the co-accused mahesh and suresh under sections 363, 366 & 376 ipc. the charges were read over and explained to each of the accused appellant and the co-accused, who pleaded not guilty and claimed to be tried.7. to prove its case, the prosecution has examined pw1 km. soni devi, the victim; pw2 dr. shashikala singh, who medically examined the victim and prepared the medical report ex. ka-1 and supplementary report ex. ka-2; pw3 dr. ramesh sharma, who conducted the x-ray and prepared the x-ray report ex. ka-3; pw4 si ram dayal chauhan, who recovered the victim and prepared the recovery memo ex. ka-4; pw5 constable savitri panwar, who took over the custody of the victim from balia police and brought her to ps muni-ki-reti; pw6 krishna swaroop, the scriber of the fir ex. ka-5; pw7 head constable hari singh, who prepared the chick fir ex. ka-6 and made the necessary entries in the gd, copy of which is ex. ka-7; pw8 si gp shukla, who took over the investigation from si gs verma; pw9 si genda singh verma, who initially conducted the investigation; pw10 constable mohan prasad and pw11 constable kanwarpal singh.8. thereafter, the statements of the accused appellant and the co-accused were recorded under section 313 cr.p.c. the oral and documentary evidence were put to each of the accused appellant and the co-accused in question form, who denied the allegations made against them. however, they did not produce any documentary or oral evidence in the defence.9. after hearing learned counsel for the parties and after appreciating the evidence on record, learned sessions judge, tehri garhwwal vide his judgment and order dated 10.3.1995 convicted and sentenced to the accused appellant and the co-accused as discussed above. against the aforesaid judgment and order dated 10.3.1995, the accused appellant sbibbu @ shiv prasad has preferred the present appeal.10. i have heard learned amicus curiae for the accused appellant and learned aga for the state and have carefully perused the entire material available on the record.11. before any further discussion, it would be pertinent to reproduce the injuries mentioned in the medical report ex. ka-1 of victim km. soni devi, who was medically examined by pw2 dr. shashikala singh on 6.9.1992 at 3.15 pm and the same are reproduced as under:general exam. : height 4'3', wt. 30 kg, teeth 14/14, axillary hairs present. public hairs not present. breast just developing. no mark of injury seen over any part of body.private part exam. : hymen old torn, discharge pv++, introitus margins are inflamed, vagina admits one finger easily, slide sent for pathology.x-ray advised.conclusion : (1) habitual to intercourse.12. thereafter x-ray was conducted by pw3 dr. ramesh sharma on 7.9.1992, who prepared the x-ray report ex. ka-3, which is reproduced as under:epiphysis around left elbow and wrist joints are not fused yet. one scar mark on right side of forehead.13. on the basis of the aforesaid x-ray report, pw2 dr. shashikla singh prepared the supplementary medical report ex. ka-3 wherein she has concluded as under:slide is negative for spermatozoa. age is below 16 years.14. to prove the abovementioned medical report ex. ka-1 and supplementary medical report ex. ka-2, the prosecution has examined pw2 dr. shashikala singh, who has proved the same. pw3 dr. ramesh sharma has proved the x-ray report ex. ka-3 and identified the x-ray plate as ex. 1.15. to further prove its case, the prosecution has examined pw1 km. soni devi whose statement was recorded before the trial court on 17.8.1993. she has stated that her age was about 14 years on the date of her examination. she has further stated that the accused appellant and the co-accused were known to her. at the time of incident she was living along with her father at shivanand ashram. her father died recently. the accused appellant and the co-accused mahesh were also living at the same ashram. the incident took place about 1 years ago. the accused appellant asked her to bring a bundle of bidi from the shop. then she went to his room to take money for brining the bidi and when she lent her hand towards the accused appellant for the money, he pulled her inside the room and locked the door. the time was about 1-1.30 pm. thereafter he committed rape on her for about half an hour and when she cried, then the accused appellant threatened her that he would cut her in pieces. when she was coming out of the room of the accused appellant, then the co-accused mahesh came across to her, who after 2-3 days asked her to make the same relationship as she did with the accused appellant and threatened her that if she would not do that, he would defame her in the ashram. she became silent on this. thereafter co-accused mahesh brought inside his room at about 12-1 pm and locked the door from inside and committed rape on her. after 4-5 days, he again raped upon her. he used to give her some eatables. he told her that she would get married with his son and if she would not go with him, then he would kill her father. about 11 months ago, he came to her quarter at 4 am and took her to his son suresh, another co-accused. they chatted with each other in their local language. thereafter they brought her at bus stand. suresh returned to his house after seeing her and mahesh off in the bus. mahesh brought her to lucknow by bus and thereafter from lucknow to balia by train. from balia he brought her to pakri in a bus, where he left her after telling her that he was bringing some breakfast for her. he did not return for about 1-1.30 hours. meanwhile, an inspector along with a constable and a lady constable and two villagers came there and brought her to pakri police station. her brother ashok was also accompanying the police party. thereafter she was brought to balia, where she was medically examined. thereafter she was brought to muni-ki-reti police station and was handed over in the custody of her father. at the time of incident, she had passed class iv and was studying in class v. she has also stated that she was 13 years' old at the time of incident. she has also stated that her statement was recorded by the magistrate and police had also interrogated her. despite searching lengthy cross-examination, the defence counsel has failed to elicit any material to shatter and discredit the testimony of this witness. her statement is reliable and natural.16. pw4 si ram dayal chauhan has stated that on 5.9.1992, he was the station officer of ps pakri, district balia and on that day the victim km. soni devi was recovered and thereafter recovery memo ex. ka-4 was prepared.17. pw5 constable savitri panwar has stated that on 6.9.1992, she was posted at ps muni-ki-reti. she went to balia along with si mk barthwal on the orders of circle officer, where she reached on 8.9.1992. victim km. soni devi was given in their supardgi by pakri police station. she left pakri on 9.9.1992 and reached at muni-ki-reti police station on 10.9.1992 along with the victim km. soni devi. on 18.9.1992, her statement under section 164 crpc was recorded by the sdm. km. soni devi remained in her custody from 9.9.1992 to 19.9.1992, on which date she was handed over in the custody of her father.18. pw6 krishna swaroop is the scriber of the report, who has stated that the informant narendra datt bahuguna was no more and on whose dictation he had written the fir ex. ka-5.19. pw7 head constable hari singh has stated that on 3.9.1992, he was posted as head moharrir at ps muni-ki-reti. he has proved the chick fir ex. ka-6 and copy of gd ex. ka-7.20. pw8 si gp shukla, the i.o. of the case has stated that he took over the investigation of this case on 24.9.1992 from si genda singh verma (pw9), who had initially conducted the investigation. he inspected the place of recovery and prepared the site plan ex. ka-8 on the pointing out of the witnesses. he also recorded the statements of the witnesses during the course of investigation and after competing the investigation filed the chargesheet ex. ka-9 against the appellant accused and the co-accused.21. pw9 si genda singh verma has stated that on 3.9.1992, he was posted at ps muni-ki-reti. the investigation of this case was entrusted to him. on 6.9.1992 on receiving the information from sp, balia that km. soni devi was recovered, si mithilesh kumar and lady constable savitri panwar (pw5) were sent there for bringing her back. they returned on 10.9.1992 along with the victim km. soni devi. on 18.9.1992, the statement of the victim km. soni devi was recorded under section 164 crpc. he had arrested the accused appellant and the co-accused. thereafter he stood transferred from that police station.22. pw10 constable mohan prasad and pw11 constable kanwarpal singh are the formal witnesses.23. thereafter, the statements of the accused appellant and the co-accused were recorded under section 313 cr.p.c. the oral and documentary evidence were put to each of the accused appellant and the co-accused in question form, who denied the allegations made against them. however, they did not produce any documentary or oral evidence in the defence.24. learned amicus curiae for the accused appellant submitted that on the basis of the evidence discussed above, no offence under section 376 ipc is made out against the appellant. i do not find any substance in the argument of learned amicus curiae for the accused appellant for the following reasons:(i) that km. soni devi has stated in her deposition that the accused appellant and the co-accused mahesh were also living at the same ashram where she lived along with her father. the accused appellant asked her to bring a bundle of bidi from the shop and when she went to his room to take money for the bidi, the accused appellant pulled her inside the room and locked the door. thereafter he committed rape on her for about half an hour and when she cried, then he threatened her that he would cut her in pieces. after this incident, when she was coming out of the room of the accused appellant, then the co-accused mahesh came across to her, who after 2-3 days asked her to make the same relationship as she did with the accused appellant and threatened her that if she would not do that, he would defame her in the ashram. she became silent on this. thereafter co-accused mahesh raped her twice on two different days. he used to lure her by giving her some eatables. he brought her to pakri, district balia on the pretext that she would be married to his son suresh, another co-accused in this case, where the victim km. soni devi was recovered by the police party and thereafter she was medically examined at dw hospital, balia. she has also stated that at the time of incident, she had passed class iv and was studying in class v and was 13 years' old at the time of said incident. despite searching lengthy cross-examination, the defence counsel has failed to elicit any material to shatter and discredit the testimony of this witness. her statement is reliable and natural.(ii) that the victim km. soni devi was a minor and was only 13 years' old at the time of the incident.(iii) that the prosecution story is supported by the medical evidence. in the medical report ex. ka-2, it has been stated that the victim km. soni devi was a minor and then she could not be a consenting party. her medical examination does not rule out rape upon her. spermatozoa could not be seen in pathological slide as enough time had elapsed for them to being seen in the vaginal smear.(iv) that the fir of this incident was lodged on 3.9.1992 by narendra datt bahuguna, father of the victim who died subsequently and thereafter on 5.9.1992, the victim km. soni devi was recovered by the police from pakri, district balia, the place of the co-accused mahesh.(v) that pw6 krishna swaroop has stated that the informant narendra datt bahuguna lived in shivanand ashram, where he too lived. he stated that he scribed the fir ex. ka-1 on the dictation of narendra datt bahuguna at the room of the complainant. he was cross-examined at length on scribing the fir, but nothing material could be elicited in his cross-examination to cast reflection on his scribing.25. in view of my foregoing discussion and for the reasons recorded above, the prosecution has successfully proved its case against the accused appellant beyond any shadow of doubt. as such, the impugned judgment and order dated 10.3.1995 passed by the sessions judge, tehri garhwal is correct and justified and the conviction and sentence awarded the accused appellant are liable to be upheld.26. resultantly, appeal being devoid of merit is hereby dismissed. judgment and order dated 10.3.1995 passed by the sessions judge, tehri garhwal in sessions trial no. 7/93, state v. mahesh and ors. convicting the appellant shibbu @ shiv prasad under section 376 ipc is hereby upheld and sentence to undergo r.i. for a period of 3 years is hereby also affirmed. appellant is on bail. he shall immediately be taken into custody to serve out the sentence. however, the period in which the accused appellant was in jail during trial and during the pendency of this appeal shall be adjusted towards the sentence after verifying the same from the records.27. let a copy of this judgment and order be sent to the lower court for its compliance. let the lower court record be also sent back.