The State Vs. Jan Ali and ors. - 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 state under section 378 of the code of criminal procedure, 1973 (hereinafter to be referred as cr.p.c.), is directed against the judgment and order dated 22.2.1995 passed by iind additional sessions judge, haridwar in s.t. no. 237/1992 state v. jan ali and ors. whereby the learned iind addl. sessions judge acquitted the respondents-jan ali, isruddin and smt. jamila for the charge levelled against them under sections 498a, 304b and 323 read with section 34 of the indian penal code, 1860 (hereinafter to be referred as the ipc) and one under section 3/4 of dowry prohibition act, 1961 (hereinafter to be referred as the act).2. there is a report of the chief judicial magistrate, haridwar dated 29.4.2004 in which it has been stated that the respondent isruddin has been died. hence, the appeal against respondent isruddin stands abated.3. heard learned counsel for the parties and perused the entire material available on record.4. in brief, the prosecution story is that ali jan (pw1) moved an application to s.p., district haridwar on 12.4.1992 with the averments that his sister mesarjahan (since deceased) was married with the respondent/accused jan ali before two and a half years. in the marriage they had given dowry as per their status, however, the respondents/accused were the greedy persons and they started harassing his sister for bringing less dowry and also demanded rs. 30,000/- cash and a colour television. it was further alleged that on 11.4.1992 at 02:00 pm when his parents went to meet his sister then the respondents/accused hurled abuses to his parents and made a demand of rs. 30,000/- and a colour t.v. and also threatened for dire consequences for not fulfilling the said demand. thereafter his parents returned to home. on the same day at 06:00 pm the respondents/accused set mesarjahan (deceased) at fire by pouring kerosene oil on her. on hearing cries of mesarjahan, sharafat (pw4) and meen ahmed reached at the place of occurrence and when these persons tried to save her then the respondents/accused beat sharafat. thereafter the respondents/accused took mesarjahan to the government hospital, haridwar and after admitting her in the hospital the respondents/accused ran away from the hospital. on the information, they also reached at the hospital. it was further alleged that he went to lodge the report of the said incident but the pathri police refused to lodge it. with the same averments, he moved the application, scribed by najakat ali to s.p., district haridwar on 12.4.1992. that application is ext. ka-1. on the basis of said application, chik fir of the case was prepared. the investigation of this case was entrusted to sub inspector rajpal sharma. mesarjahan was medically examined by dr. b.l. verma (pw9), who after examining her prepared the injury report i.e. ext. ka-7. on 12.4.1992 at 12:35 am, dying declaration of mesarjahan was recorded by the then tehsildar sri satish chandra (pw8), which is ext. ka-5. on 17.4.1992, mesarjahan succumbed to her burn injuries. thereafter, inquest report was prepared which is ext. ka-2. along with the inquest report, sketch of the dead body and other papers were also prepared. on 18.4.1992 at 08:50 am, post-mortem of the dead body of the deceased mesarjahan was conducted by dr. rakesh kumar (pw7), medical officer, h.m.g. hospital, haridwar. the post-mortem report is ext. ka-3. during the course of investigation, the i.o. recorded the statement of the witnesses and also prepared the site- plan of the place of occurrence. on completion of the investigation, the i.o. submitted the charge sheet against the respondents/accused.5. learned ist additional munsif magistrate, haridwar committed the case to the court of sessions on 4.8.1992 after giving necessary copies to the respondents/accused as provided under section 207 cr.p.c.6. it appears from record that the case was then transferred to additional sessions judge, haridwar for hearing and disposal according to law.7. on 2.4.1993, learned additional sessions judge, haridwar framed the charge of offence punishable under sections 304b, 498a and 323 r/w section 34 ipc and one under section 3/4 of dowry prohibition act, 1961 against the respondents/accused. the charge was read over and explained to each of the respondent/accused to which they pleaded not guilty and claimed to be tried.8. in order to prove its case, the prosecution examined pw ali jan, brother of the deceased mesarjahan and complainant of the case, pw2 nazakat ali, scriber of the report and witness of the inquest report, pw3 iqbal, brother of the deceased, pw4 sharafat, brother-in-law of the deceased, pw5 yaseen brother of sharafat (pw4), pw6 ali hasan, father of the deceased, pw7 dr. rakesh kumar, medical officer, who conducted the post-mortem of the dead body of the deceased mesarjahan, pw8 satish chandra, tehsildar, who recorded the dying declaration of the deceased and pw9 dr. b.l. verma, who initially examined the injuries on the body of mesarjahan (deceased).9. thereafter the statements of the respondents/accused were recorded under section 313 cr.p.c. the oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. however, they did not produce any oral or documentary evidence in their defence.10. after appreciating the entire evidence available on record and hearing learned counsel for the parties, learned iind addl. sessions judge, haridwar vide his judgment and order dated 22.2.1995 acquitted the respondents/accused as stated above. against the said judgment and order, the state has preferred this appeal.11. before any further discussion, it would be pertinent to mention the ante-mortem injuries recorded in the post-mortem report. the post-mortem of the dead body of the deceased mesarjahan was conducted by dr. rakesh kumar on 18.4.1992 at 08:50 am who also prepared the post-mortem report ext. ka-3. following ante-mortem injuries were found on the dead body of the deceased:- ist to iind degree burn injury present on front of neck, front of chest and abdomen, left outer side of chest; genitalia; front of both thighs; both legs; front of right forearm and hand and left arm and left hand.- the burn area is painted by gentian violet.cause of death was toxemia due to ante-mortem burn injuries.12. to prove the above-noted post-mortem report, the prosecution examined pw7 dr. rakesh kumar, who has stated that on 18.4.1992 he had conducted post-mortem of the dead body of the deceased mesarjahan. he has proved the post-mortem report ext. ka-3.13. initially on 11.4.1992 mesarjahan (deceased) was medically examined by pw9 dr. b.l. verma, medical officer at h.m.g. hospital, haridwar, who prepared the injury ext. ka-7, which is reproduced as under:(i) ist and iind degree burn injury present in front of neck, chest and abdomen- left lat. side of chest- genitalia, front of both thighs- both legs- right forearm front and hand- left arm and left handburn area is red in colourblisters are present, hairs of genitalia are singed, hair of skull are singed.g. c. - low/restlesspulse - 110/mtresp. - 22/mtb.p. - 100/66mm hgopinion - patient is a case of burn injury, kept under observation, admitted in ward.duration fresh, police informed.14. to prove the injury report ext. ka-7, the prosecution examined pw9 dr. b.l. verma, who has stated that on 11.4.1992 he was posted at district hospital, haridwar. on that day at 10 pm he medically examined mesarjahan and found the above-noted injuries on her body. he has proved the injury report ext. ka-7.15. to prove its case further, the prosecution has examined pw1 ali jan, who is the brother of the deceased and complainant of the case. he has proved the report ext. ka-1. in the cross-examination, he stated that the respondents have never made a demand of dowry from him and his sister had also never told him about the same. he further stated that her sister had never told him that she was ever tortured or harassed for dowry and his father has also never told him that the respondents/accused have demanded dowry. upto the date of incident there were cordial relations between his sister and the respondents/accused. he admitted the fact that his sister was been hospitalized by the respondents/accused. upto when they reached in the hospital, the respondents/accused were looking after his sister mesarjahan. he further stated that mesarjahan was not in a condition to speak and she remained unconscious till her death. mesarjahan could not talk to him or his parents. he further stated that before them the magistrate have not recorded the statement of mesarjahan and even she was not in a condition to give statement.16. pw2 is nazakat ali, who is the scriber of the report ext. ka-1 and the witness of the inquest report. he has stated that the report was written by him in the hospital on the dictation of ali jan (pw1).17. pw3 iqbal, brother of the deceased, pw4 sharafat, brother-in-law of the deceased, pw5 yaseen @ meen, brother of sharafat (pw4) and pw6 ali hasan, father of the deceased have not supported the prosecution case and all of them were declared hostile by the trial court.18. pw8 satish chandra has stated that on 12.4.1992 he was posted as tehsildar at district haridwar. on that day, he recorded the dying declaration of mesarjahan (deceased) which is ext. ka 5. he has also proved the medical certificates ext. ka-4 and ka-6.19. thereafter the statements of the respondents/accused were recorded under section 313 cr.p.c. the oral and documentary evidence were put to each of them in question form, who have denied the allegations made against them. however, they did not produce any oral or documentary evidence in their defence.20. sri m.a. khan, learned brief holder for the state has submitted that on the basis of the evidence as discussed above, the prosecution has proved its case against the respondents/accused under sections 304b, 498a and 323 r/w section 34 ipc and further under section 3/4 of the act. i do not find force in the submission of learned brief holder for the state, due to following reasons:(i) pw1 ali jan who is the brother of the deceased and who also lodged the report of the said incident has himself not supported the prosecution case in his cross-examination. it was stated by him that the respondents-accused had never demanded dowry from him and his sister had also never told him about the same. the deceased had never told him that she was ever tortured or harassed for dowry. it was also deposed by him that there were cordial relations between his sister and the respondents-accused. he admitted that his sister was been hospitalized by the respondents-accused and the respondents- accused were taking care of mesarjahan (deceased) till the time they reached in the hospital. it was also deposed by him that mesarjahan was not in a condition to speak and she remained unconscious till her death. it was further stated that no statement of mesarjahan was recorded by the magistrate before them and even she was not in a condition to give statement.(ii) pw3 iqbal, brother of the deceased, pw4 sharafat, brother-in-law of the deceased, pw5 yaseen @ meen, brother of sharafat (pw4) and pw6 ali hasan, father of the deceased have not supported the prosecution case and all of them were declared hostile.(iii) in the dying declaration, it has nowhere come that the respondents-accused have ever demanded dowry from mesarjahan or her parents. further, no specific allegation was made by her against her husband.21. learned counsel for the respondents/accused has further submitted that where two views are possible and one of the view is possible which was taken by the trial court, then the appellate court should not ordinarily interfere with the judgment of acquittal. reliance is placed on paras 7 and 8 of a judgment rendered by hon'ble supreme court in the case of kalyan singh v. state of m.p. reported in (2007) 3 scc (cri.) 173, which read as under:7. the high court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. the views of the learned trial judge cannot be said to be wholly unsustainable. it is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. we do not, however, mean to lay down the law that the high court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the state but we would like to point out that even if the high court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the high court to arrive at the conclusion that no two views are possible.8. we, therefore, having regard to the fact situation of the instance case, are of the opinion that as two views are possible, the high court should not have interfered with the judgment of acquittal passed by learned sessions judge. we, therefore, set aside the impugned judgment and allow this appeal. the appellant is in jail, he is directed to be released forthwith if not required in connection with any other case.22. on the basis of the evidence discussed above, i am of the considered view that when one view is also possible as the view taken by the trial court, then as per the aforesaid judgment of kalyan singh (supra), the view taken by the trial court must be accepted. therefore, there is no reason to disagree with the view taken by the trial court on the basis of the evidence discussed above and, therefore, the prosecution has not able to prove its case against the respondents/accused beyond reasonable doubt.23. accordingly, the appeal is dismissed. the judgment and order dated 22.2.1995 passed by iind additional sessions judge, haridwar in s.t. no. 237/1992 state v. jan ali and ors. is confirmed.24. let the lower court record be sent back.