Dev Singh 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]b.c. kandpal, j.1. this appeal preferred under section 374 read with section 389 cr.p.c. is directed against the judgment and order dated 15.2.1997 passed by special judge/additional sessions judge, nainital in sessions trial no. 515 of 1995 state v. dev singh convicting the appellant under section 302 i.p.c. and sentencing him to undergo imprisonment for life.2. brief facts of the case are that a telephonic message was received by the police of tallital to the effect that the lady had certain burn injuries which were caused by her own husband dev singh resident of stonelay compound tallital, nainital. on receiving this information s.i. kamal ram arya (pw4) rushed to the district hospital, mallital, nainital and on way he found that the said lady was being taken to the hospital by her husband and the other residents of the locality. he also reached the hospital and had a talk with the said deepa @ deika. she told him that her husband dev singh poured kerosene oil on her body and set her on fire because he was addict of alcohol and she was pressing him to leave the said habit and due to that reason a murderous attempt was made on her. so on receiving the said information sri kamal ram arya returned back to the police station and got prepared the check report and registered a case under section 307 i.p.c. against the accused dev singh. in the meantime, dr. k.k. bhatt (pw-8) medico-legally examined the injured and sent information to the police with regard to deepa having been admitted in the hospital in a burn condition. sri b. prasad, naib tehsildar (pw-6) reached the hospital and recorded the statement of smt. deepa (ex. ka.4) in the presence of dr. m.c. joshi (pw-7), who has given the certificate that patient was fit for giving the statement. since the said injured died on the next day, the case was altered from section 307 i.p.c. to section 302 i.p.c. the dead body of the deceased smt. deepa was sent for postmortem and the autopsy was conducted by dr. anil sah (pw-1). he found that the deceased had received 98% burn injuries. pw- 1 has opined that cause of death was on account of shock due to extensive ante mortem burn injuries. the investigation of the case was taken up by dharmpal singh (pw-9), who collected the bottle containing kerosene oil and the partly burnt clothes, a match box and a match stick from the place of incident and prepared recovery memo (ext.ka. 1). he has also proved the site plan (ext.ka.9). after completion of the investigation charge sheet was submitted against the accused.3. after submission of the charge sheet, case of the accused-appellant was committed to the court of sessions and the learned addl. sessions judge after hearing the parties framed charge of offence punishable under section 302 i.p.c. against accused-appellant. the accused pleaded not guilty and claimed to be tried.4. to prove its case, the prosecution produced as many as eleven witnesses. dr. anil sah (pw-1) examined the dead body and prepared post mortem report (ext.ka. 1). pw-2 bishan singh is the father of the deceased and pw-5 khim singh is her uncle. pw-3 prem singh is the witness of recovery of bottle containing kerosene oil. pw-4 s.i. kamal ram arya, who after having talk to the deceased, got prepared check report (ext.ka.2). sri b. prasad (pw-6) naib tehsildar recorded dying declaration of the deceased. dr. m.c. joshi (pw-7) was present in the hospital at the time of recording of dying declaration of the deceased by naib tehsildar. dr. k.k. bhatt (pw-8) attended smt. deepa on the said date at about 8.45 a.m. when she was brought to the hospital. dharmpal singh (pw-9) is the investigating officer of the case. sri narain singh negi (pw- 10), the other naib tehsildar, prepared the inquest report and constable guru prasad (pw- 11) proved the check f.i.r. (ext.ka.2).5. after the evidence of the prosecution was over, statement of the accused-appellant was recorded under section 313 cr.p.c. he denied all the allegations of prosecution and claimed innocence and false implication. in defence the accused produced sri a.p. arya (dw-1).6. the trial court having considered the entire evidence on record and hearing learned counsel for parties found guilty accused-appellant dev singh of the offence punishable under section 302 i.p.c. and convicted and sentenced him to undergo imprisonment for life, vide impugned judgment and order dated 15.2.1997.7. feeling aggrieved by the aforesaid impugned judgment and order, accused-appellant dev singh has preferred the present appeal before this court, which has been placed before us for disposal.8. heard mr. r.s. sammal, advocate with mr. prem kaushal, learned counsel for the appellant, mr. s.s. adhikari, learned a.g.a. for the state/respondent and perused the record.9. it is to be noted here that in the present case there is no eye-witness account of the occurrence and the conviction has been based mainly by relying upon the dying declaration (ex.ka.4) of smt. deepa (deceased) by the trial court.10. learned counsel for the appellant has challenged the authenticity of dying declaration being weak type of evidence and argued that the dying declaration alone could not have been made the basis for conviction.11. now, this court has to see as to whether the court below was justified in convicting the appellant on the basis of dying declaration (ex. ka.4) made by smt. deepa (deceased). the dying declaration (ex. ka.4) of smt. deepa, recorded by b. prasad, naib tehsildar (pw-6) is reproduced below:today in the morning i asked my husband why did he consume liquor, then my husband dev singh told that she had ruined his house and who is she to object. by saying this he poured kerosene oil upon me and set me on fire with matchbox. i was on fire and i gripped my husband who also sustained burns on his body. this was second marriage of my husband. his first wife had died and out of wedlock from first wife there were two boys and one girl. i was married only 28 days ago. my father's village is ragodi which is ahead of daniya, and is in district almora.12. pw-4 s.i. kamal ram arya has stated in his statement that on 18.8.1995 at about 7.00 a.m. a telephonic message was received to the effect that a lady had certain burn injuries which were caused to her by her own husband dev singh, resident of stonelay compound, tallital, nainital. on being received this information, he rushed to the district hospital, mallital, nainital, and on the way he found that the said lady was being taken to the hospital by her husband and the other residents of the locality. he also reached the hospital and talked to the lady (smt. deepa). she told him that her husband dev singh poured kerosene oil on her body and set her on fire, because he was addict of alcohol and she was pressing him to leave the said habit and due to this reason a murderous attempt was made on her.13. pw-6 sri b. prasad, naib tehsildar (pw-6) who had recorded the dying declaration of the deceased on 18.8.1995 at 10.15 a.m., has categorically stated that after being satisfied that the patient was in a fit state of mind for making the statement, he recorded her statement. the statement was read-over to smt. deepa (deceased) and she approved the same by putting her thumb impression below the statement. he categorically stated that whatever was stated by the deceased had been correctly recorded by him and none was present at the time of recording the statement of the deceased except himself and dr. m.c. joshi. the doctor again certified at the end of the statement that the victim remained in a fit state of mind throughout her statement.14. pw-7 dr. m.c. joshi has stated in his statement that he was present in the hospital when the dying declaration was being recorded by naib tehsildar sri b. prasad (pw-6). he gave a certificate on dying declaration (ext.ka.4) to the effect that smt. deepa was in fit mental state to give statement and she remained in fit mental state throughout the period of recording dying declaration. both the certificates are on record as ext.ka.6 and ext.ka.7.15. pw-8 dr. k. k. bhatt has stated that he provided first aid to the injured smt. deepa when she was brought to the hospital. he also informed the police regarding the statement of the lady so given to him alleging that the burns injuries were caused to her by her husband dev singh. he proved his report (ext.ka.8) while disclosing the fact that kerosene smell was present on the body of smt. deepa when she was attended by him for first aid. this witness has nowhere mentioned in his report (ext.ka.8) that smt. deepa was not in a fit condition to speak. moreover, she died next day i.e. on 19.8.1995 at 1.50 p.m. as is evident from post mortem report (ext.ka. 1) and thus she remained alive for 19 hours after the occurrence.16. in the present case, the deceased received burn injuries in her house at the hands of her husband. the deceased has categorically stated in his statement before pw-4 s.i. kamal ram arya that she was set ablaze by her husband for the reason that her husband was addict of alcohol and she was pressing him to leave the said habit. she reiterated her statement before pw-6 b. prasad, naib tehsildar, in her dying declaration. she has also stated that when her husband poured kerosene oil and set her on fire, she gripped her husband who also sustained burns on his body. there is nothing on record that immediately before recording of her statement on 18.8.1995 at 10.15 a.m. any one had an occasion to tutor her. it has come in the evidence of pw-6 b. prasad, naib tehsildar, who recorded the dying declaration, that whatever was stated by the deceased had been correctly recorded by him and none was present at the time of recording the statement of the deceased except himself and pw-7 dr. m.c. joshi. there appears to be no exaggeration in the dying declaration which would show that the injured was tutored by any one.17. further, from perusal of the statement of pw-6 b. prasad, naib tehsildar, who recorded the dying declaration of the deceased, it is clear that at the time of making statement on 18.8.1995 at 10.15 a.m., smt. deepa was in a fit condition to make dying declaration. pw-6 has also proved the dying declaration (ext.ka.4) recorded by him as well as the written dictation of the s.d.m. (ext.ka.5). this dying declaration is duly proved by pw-6 naib tehsildar b. prasad who has no interest in false implication of the accused supported by the statement of dr. m.c. joshi (pw-7), in whose presence it was recorded by naib tehsildar, and dr. m.c. joshi remained present there throughout the period of recording her statement. pw-7 gave certificate on dying declaration (ext.ka.4) regarding mental state of the injured smt. deepa before and after recording of her statement. further, dying declaration recorded by pw-6 naib tehsildar gets corroboration from the oral declarations of the deceased recorded by pw-4 ram kamal arya and pw-8 dr. k.k. bhatt respectively. pw-4 has stated that smt. deepa told him she was set on fire by her husband with the intention to kill her. pw-8 dr. k.k. bhatt has also stated on oath that smt. deepa told him at the time of her first aid that her husband set her body on fire.18. in the present case, the motive for committing the crime is also there as is emerged from perusal of the dying declaration. smt. deepa (deceased) stated in her dying declaration that her husband dev singh was addict of alcohol. when she objected to his consuming liquor, the accused committed this crime by setting her on fire with intention to kill her.19. in view of the above, we find the dying declaration to be reliable, unambiguous and untainted. it is well established that if the dying declaration is reliable, the same can be basis for conviction without further corroboration. therefore, we are of the view that the learned trial court has rightly convicted the accused-appellant on the basis of dying declaration (ex.ka.4).20. for the reasons stated above, we do not find any merit in this appeal. the appeal is liable to be dismissed.21. the appeal is dismissed. conviction and sentence awarded by the trial court against accused-appellant dev singh, under section 302 i.p.c., is affirmed. the appellant is on bail. his bail is cancelled and sureties discharged. registry is directed to send the lower court record back to the trial court to make the accused-appellant served out the sentence awarded against him.