Sunil Dutt and anr. Vs. State - 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 appellants under section 374(2) of the code of criminal procedure, 1973 (hereinafter to be referred as 'cr.p.c.'), is directed against the judgment and order dated 29.8.1996 passed by sessions judge, almora in sessions trial no. 30 of 1992, state v. sunil datt and anr. whereby the appellant sunil dutt has been convicted under section 307 and 506 of indian penal code, 1860 (for short, i.p.c.) and sentenced to undergo r.i. for five years under section 307 and r.i. for six months under section 506 ipc. appellant ghanshyam dutt has been convicted under section 307 read with section 34 ipc as well as under section 506 ipc and sentenced to undergo ri for five years under section 307 read with section 34 ipc and ri for six months under section 506 ipc. both the sentences of both the accused appellants were directed to run concurrently.2. in brief, the case of prosecution is that pw1 jai dutt mishra on 11.7.1990 at 6 pm, lodged a report with the patwari circle meharagaon with the averments that he was posted as assistant teacher in higher secondary school, meharagaon in the year 1990. deep chandra (pw2), son of the informant, studied in class v in the primary school, meharagaon in the year 1990. on 10.7.1990, the informant and his son deep chandra were returning home from school. all of a sudden, at about 12 o' clock, accused appellant sunil dutt pounced upon jai dutt mishra on the bridge of ghatoria and assaulted him with danda and made an unsuccessful attempt to throw him into the river. the informant sustained several injuries. the informant's son, deep chandra, started weeping and tried to rescue his father. accused appellant sunil dutt picked up deep chandra and threw him into the river. on the alarm raised by jai dutt mishra, accused appellant ghanshyam dutt, real brother of sunil dutt, arrived there and exhorted his brother to throw jai dutt mishra into the river. both the brothers pounced upon the informant and assaulted him. when informant raised hue and cry for help, several witnesses including ram chandra (pw3) and devi dutt arrived there and intervened. deep chandra anyhow with great difficulty came out of the river and reached the bridge. he too had sustained injuries on his person and was weeping. thereafter, a number of villagers including women and children arrived there from adjoining villages, like khina, chintude, patgalya.3. on the basis of the fir ex. ka-1, the chick fir ex. ka-4 was prepared on the same day by pw5 patwari ramesh chandra tiwari. injured jai dutt mishra and deep chandra were medically examined by pw4 dr. dp durgapal on 10.7.1990 at 5.50 pm and 6.10 pm respectively, who also prepared the medical report ex. ka-2 and ka-3 respectively.4. during the course of investigation, the i.o./patwari inspected the place of occurrence and prepared the site plan ex. ka-5. (in rural hilly areas of state of uttarakhand, the patwaris and certain revenue officials are vested with police powers vide u.p. govt. notification no. 494/viii-418-16 dated 7/3/1916). during the course of investigation, he recorded the statements of the witnesses and after completing the investigation, filed the chargesheet ex. ka-6 against the accused appellants.5. learned cjm, almora after giving the necessary copies of the documents to the accused appellants as prescribed under section 207 cr.p.c. committed the case to the court of sessions on 18.7.1992.6. on 3.5.1994, learned sessions judge, almora framed the charges against the accused appellant sunil dutt under section 307 & 506 ipc and against the accused appellant ghanshyam dutt under section 307 read with section 34 ipc and section 506 ipc. the charges were read over and explained to each of the accused appellant, who pleaded not guilty and claimed to be tried.7. to prove its case, the prosecution has examined pw1 jai dutt mishra, the complainant; pw2 deep chandra, an injured witness; pw3 ram chandra, an eyewitness of the incident; pw4 dr. dp durgapal, who medically examined injured jai dutt mishra and deep chandra and prepared the medical reports ex. ka-2 and ka-3 respectively; pw5 ramesh chandra tiwari, patwari and the i.o. of the case.8. thereafter, statements of the accused appellants were recorded under section 313 of cr.p.c. the oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they were falsely implicated in the case. however, no oral or documentary evidence was produced in defence.9. after hearing learned counsel for the parties and after appreciating the evidence available on record, the learned sessions judge, almora vide his judgment and order dated 29.8.1996 convicted and sentenced to the accused appellants as discussed above. against the aforesaid judgment and order dated 29.8.1996, the accused appellants have preferred the present appeal.10. i have heard learned counsel for the parties and have carefully perused the entire material available on the record.11. before any further discussion, it would be pertinent to mention the injuries found on the body of injured jai dutt mishra (pw1) and deep chandra (pw2), who were medically examined by pw4 dr. dp durgapal on 10.7.1990 at 5.50 pm and 6.10 pm respectively and medical reports ex. ka-2 and ka-3 respectively were prepared by him, which are reproduced below:injuries found on the body of pw1 jai dutt mishra as noted in medical report ex. ka-2:(1) lower right incisor is shaking.(2) laceration .2 cm x .2 cm on the inner aspect of the lower lip just right to the mid line.(3) 5 cm x .5 cm x skin deep laceration on the anterior aspect of the left leg, oblique 8 cm below the knee joint.(4) 5 cm x 9 cm contusion on the lateral aspect of left leg, 2 cm below the knee joint. reddish in colour.c/o pain in lower abdomen. no sign of external injury seen.opinion : fresh in duration. injury no. (1) is grievous in nature, injury no. (2), (3) & (4) are simple in nature.injury no. (1) is caused by blow or fall on some surface. injury no. (2), (3) & (4) are caused by hard and blunt object.injuries found on the body of pw2 deep chandra as noted in medical report ex. ka-3:(1) contusion over the chin 1 cm x 2 cm, reddish in colour.(2) abraded contusion 4 cm x 1.5 cm on the lateral aspect of left chest on the lower part, reddish in colour.opinion : fresh in duration. injury no. (1) is caused by hard and blunt object and injury no. (2) is caused by hard and blunt object with involvement of friction. injuries are simple in nature.12. to prove the aforesaid medical reports ex. ka-2 and ka-3, the prosecution has examined pw4 dr. dp durgapal, who has proved the same and has further stated that injuries were fresh. injury no. (1) of jai dutt mishra was grievous in nature and injury no. (2), (3) & (4) were simple in nature. he has further stated that injury no. (1) could be caused by the fist and injury no. (3) & (4) could be caused by lathi. he has further stated that injuries of deep chandra were fresh and simple in nature.13. to further prove its case, prosecution has examined pw1 jai dutt mishra, the informant who has reiterated the averments made in the fir ex. ka-1. in the cross-examination, he has stated that he had received the injury on his mouth by the fist.14. pw2 deep chandra and pw3 ram chandra have corroborated the version of pw1 jai dutt mishra.15. pw5 ramesh chandra tiwari, patwari and the i.o. of the case has stated that on 10.7.1990, he was posted as patwari in patwari circle meharagaon. on the basis of fir ex. ka-1 lodged by pw1 jai dutt mishra, he had prepared the chick fir ex. ka-4. during the course of investigation, he prepared the site plan of the place of occurrence ex. ka-5, recorded the statements of the witnesses and after completing the investigation, he filed the chargesheet ex. ka-6 against the accused appellants.16. thereafter, statements of the accused appellants were recorded under section 313 of cr.p.c. the oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they were falsely implicated in the case. however, no oral or documentary evidence was produced in defence.17. learned counsel for the accused appellants argued that on the basis of the evidence adduced on behalf of the prosecution, no case under section 307, 506 and 307 read with section 34 ipc is made out against the accused appellants and at the most, only the offence under section 325 ipc is made out against them.18. i find substance in the submission of learned counsel for the accused appellant due to the reason that injury no. (2), (3) & (4) shown in the injury report ex. ka-2 of injured jai dutt mishra were simple in nature. his injury no. (1) was grievous in nature but as per the statement of pw4 dr. dp durgapal, it was caused to him by fist which is not a deadly weapon and it does not fall under the definition of an instrument for shooting, stabbing or cutting, or any instrument which, used as weapon of offence, is likely to cause death. pw1 jai dutt mishra has also stated in his cross-examination that he received the injury in his mouth by the fist. in the medical report ex. ka-3 of pw2 deep chandra, both the injuries noted were simple in nature. besides this, the evidence adduced on record by the prosecution shows that the accused appellant did not cause the injuries with intention to kill the injured jai dutt mishra and deep chandra. therefore, the present case falls under section 325 ipc and not under section 307 and 506 ipc as has been held by the trial court.19. parties have sought permission of this court for compounding the offence and have accordingly filed the compounding application stating therein that they have entered into compromise and the dispute has now amicably been settled between them. compounding application is duly supported by the affidavits of injured jai dutt mishra (pw1) and deep chandra (pw2) and the accused appellant ghanshyam dutt. injured have stated in their respective affidavits that they had suffered only simple injuries in the said incident. it has been further stated by the parties that now they are living peacefully and have cordial relations with each other. therefore, learned counsel for the parties have submitted that permission to compound the offence may be granted and the appeal may be decided in terms of the compromise.20. offence under section 325 ipc is compoundable. section 320 (2) of cr pc provides that under section 325 ipc, the offence can be compounded by the person to whom the hurt is caused.21. therefore, in view of the facts and circumstances of the case and the legal proposition, the compounding application deserves to be allowed and the appeal is liable to be decided in terms of the compromise arrived at between the parties. therefore, permission to compound the offence is granted. accordingly, the compounding application is allowed. the compromise arrived at between the parties is accepted and the offence under section 325 ipc is accordingly compounded on the basis of the compromise filed by the parties and accepted by this court.22. resultantly, the judgment and order dated 29.8.1996 passed by the sessions judge, almora in sessions trial no. 30 of 1992, state v. sunil datt and anr., convicting the appellant sunil dutt under section 307 & 506 ipc and the appellant ghanshyam dutt under section 307 read with section 34 ipc and section 506 ipc is herby set aside and sentence awarded to each of the appellants to undergo r.i. for five years and six months respectively under aforesaid sections of ipc is hereby also quashed. the appellants sunil dutt and ghanshyam dutt have been found guilty only for the offence punishable under section 325 ipc. since both the parties have entered into compromise which has been accepted by this court and the said offence under section 325 ipc is compounded, therefore, the accused appellants sunil dutt and ghanshyam dutt are acquitted of the charge of offence punishable under section 325 ipc. the appeal is accordingly disposed of in terms of the compromise arrived at between the parties. appellants are on bail. their bail bonds are cancelled. they need not surrender unless required in any other case.23. let the lower court record be sent back.