Semantic Analysis by spaCy
M. Krishna Vs. State of Karnataka
Decided On : Feb-19-1999
Court : Supreme Court of India
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No. 216 of 1999', 'appellant' => 'M. Krishna', 'authreffered' => '', 'casename' => 'M. Krishna Vs. State of Karnataka', 'casenote' => ' - [M. Hidayatullah, C.J.,; G.K. Mitter,; K.S. Hedge,; R.S. Bachawat and; S.M. Sik, JJ.] The sales tax authorities directed that the sum realised as sales tax by the petitioners from their customers and paid over to the State should be refunded to the petitioners on condition that the petitioners passed on the amounts to their customers. Since the petitioners did not fulfil the condition, the sales tax officer 'forfeited the sum under s. 21(4) of .the Bombay Sales Tax Act, 1953, by order dated March 17, 1958. On March 28, the petitioners filed a writ petition in the High Court and contended that s. 21(4) was ultra rites the powers of the State Legislature and was violative of Arts. 19(1)(f) and 265 of the Constitution and hence, they were not liable to repay the amount. The single Judge dismissed the petition on the ground that the petitioners defrauded their customers and so were not entitled to any relief even if there was a violation of fundamental rights. The appellate bench of the High Court dismissed the appeal on the ground that it would not interfere with the discretionary order of the single Judge. On December 24, 1958, the Collector attached the properties of the petitioners for recovering the amount as arrears of land revenue and the petitioners paid the amount in instalments between August 1959 and August 1960. On September 29, 1967 this Court in Kantilal Babual v. H.C. Panel, 21 S.T.C. 174 (S.C.) struck down s. 12A(4) of Bombay Sales Tax Act, 1946, corresponding to s. 2'1(4) of the 1953- Act, on the ground that it was violative of Art. 19(1)(f) inasmuch as the power conferred by the section was unguided, uncanalised and uncontrolled and so was not a reasonable restriction on the fundamental right guaranteed under the Article. On the assumption that s. 21(4) of the 1953-Act is also liable to be struck down on the same ground, on February 9, 1968, the petitioners flied a writ petition under Art. 32 claiming a refund of the amount. The petitioners contended that they did not know that the section was ultra vires on the particular ground on which this Court struck it down, that they paid the amounts under coercion or mistake, that the mistake was discovered on September 29, 1967 (the date of the judgment of this Court) and that they were entitled to the refund under s. 72 of the Indian Contract Act, 1872. On the questions: (1) Whether the petition is liable to be dismissed on the ground of Inches; and (2) Whether the petition is barred by res judicata in view of the decision of the High Court. HELD: (Per Hidayatullah, C.J., Bachawat and Mitter, JJ.): (1) The petition must be dismissed on the ground of Inches. Per Hidayatullah C.J.: Article 32 gives the right to move this Court by appropriate proceedings for enforcement of fundamental rights and the State cannot place any hindrance in the way of an aggrieved person. But once the matter has reached this Court, the extent or manner of interference is for this Court to decide. This Court has put itself in restraint in the matter of petitions under Art. 32. For example, this Court refrains from acting under the Article if the party had already moved the High Court under Art. 226 and if the High Court had exercised its parallel jurisdiction. In such a case, this Court would not allow fresh proceedings to be started under Art. 32 but would insist on the decision of the High Court being brought before it on appeal. Similarly, in inquiring into belated and stale claims, this Court should take note of evidence of neglect of the petitioner's own rights. for a long time or of the rights of innocent parties which might have emerged by reason of the delay. The party aggrieved must therefore move this Court at the earliest possible time and explain satisfactorily all semblance of delay. It is not possible for this Court to lay down any specific period as the ultimate limit of action and each case will have to be considered on its own facts. A petition under Art. 32 is neither a suit nor an application to which the Limitation Act applies. Further, putting curbs in the way of enforcement of fundamental rights through such legislative action might be questioned under Art. 13(2). for, if a short period of limitation is prescribed the fundamental right might be frustrated. Therefore, this Court has to exercise its discretion from case to case, and where there is appearance of an avoidable delay and this delay affects the merits of the claim, this Court will consider it, and in a proper case, hold the party disentitled to invoke its extraordinary jurisdiction. [830C, DE. G--H; 831 A--B. C--E; 832 A--E] In the present case, the petitioners moved unsuccessfully the High Court for relief on the. ground that the recovery from them was unconstitutional, but did not come up in appeal to this Court. There is thus no question of any mistake of law. Having set the machinery of law in motion they cannot abandon it to resume it after a .number of years because another person got the statute declared unconstitutional. They should have known the exact ground of unconstitutionality since every one is presumed to know the law; and pursued the ground in this Court. Not having done so, and having abandoned his own litigation years ago. this Court will not apply the analogy of the Article in the Limitation Act in cases of mistake of law and give him relief. [832 F--H; 833 A--B, C--E] Per Bachawat, J.: The normal remedy for recovery of money paid to the State under coercion or mistake of law is by suit. The right to move this Court for enforcement of fundamental rights is guaranteed by Art. 32, and no period of limitation is prescribed for such a petition. The writ issues as a matter of course if a breach of a 'fundamental right established, but this does not mean that in giving relief under the Article this Court may ignore all laws of procedure. The extraordinary remedies under Arts. 32 and 226 of the Constitution are not intended to enable a claimant to recover monies the recovery of which by suit is barred by limitation. In the absence any roles of procedure under Art. 145(1)(c) this Court may adopt any reasonable rule. For example. this Court will not allow a petitioner to move this Court under Art. 32 on a petition containing misleading and inaccurate statements. Similarly, the general principles of res judicata are applied where applicable on grounds of public policy. Therefore, where the remedy in a writ application under Art. 32 or Art. 226 corresponds to a 'remedy in an ordinary suit and the latter remedy is subject to the bar of a statute of limitation, the Court imposes on analogy the same limitation on the summary remedy in the writ jurisdiction even though there is no express statutory bar of limitation, on grounds of public policy and on the principle that the laws aid the vigilant and not those who slumber. [842 A--F; 843 A--F] In the present case, the petitioners were not labouring under any mistake of law when they made the payments, because, in their writ petition in the High Court, they contended that the order was invalid and that s. 21(4) of the Bombay Sales Tax Act, 1953, was ultra vires and unconstitutional although they did not know the precise ground upon which this Court subsequently struck down s. 12A(4) of the 1946-ACt. Therefore, when they made the payments in 1959 and 1960 they were made under coercion and not under a mistake of law in thinking that the money was due. Hence the petitioners could not claim any relief on the ground of mistake. They could rely on the ground of coercion but a suit for the recovery of money on the ground of coercion instituted in February 1968, would have been barred by limitation. A suit for recovery of money on the ground of coercion instituted after January 1, 1964 would be governed by Art. 24 of the Limitation Act, 1963, and the period of limitation would be 3 years from the dates in 1959 and 1960 when the amounts were paid. The petitioners could not obtain an extension of the period under s. 30(a) of the Limitation Act, 1963, as Art. 62 of the Limitation Act, 1908, which governs a suit for recovery of tax or other levy illegally collected, prescribed the same period of limitation. [840 F--H; 841 A---C] Shiva Prasad Singh v. Srish Chandra Nandi, (1949) L.R. 76 I.A. 244, 254, Sales Tax Officer v. Mukundlal Saraf [1959] S.C.R. 1350, 1361, 1362, A. Venkata Subba Rao v. State of Andhra Pradesh[1965] 2 S.C.R. 577, 612--620, State of Madhya Pradesh v. Bhailal Bhai & Ors. [1964] 6 S.C.R. 261 274, Daryao v. State of U.P. [1962] 1 S.C.R. 574, Sobhraj Odharmal v. State of Ralasthan, [1963] Supp. 1 S.C.R. 99, 111 and Her Highness Ruckmaboye v. Lulloobhoy Mottickchund, (185152) 5 M.I.A. 234, 251, referred to.- Per Mitter, J.: The Limitation Act does not in terms apply to proceedings against the State under Art. 32 in respect of violation of fundamental rights. A person complaining of such infraction has. one of three courses open to him. He can file a suit, invoke Art. 226 or Art. 32Suits are governed by the Limitation Act. In the matter of the issue of a writ under Art. 226 also, courts have refused to give relief in cases of long or unreasonable delay, although the Limitation Act does not apply, and the maximum period fixed by the Legislature for filing a suit is ordinarily taken to be a reasonable standard by which delay in seeking the remedy under Art. 226 can be measured. There is no reason for applying a different test when a party comes to this Court under Art. 32. There is public policy behind all statutes of limitation and a claim based on the infraction of fundamental rights ought not to be entertained if made beyond the period fixed by the Limitation Act for the enforcement of the right by way of suit, that is, although the Limitation Act does not apply, the period fixed by it should be taken to be a true measure of the time within which a person can be allowed to raise a plea successfully under Art. 32. [853 C--H; 854 A--B] The petitioners in this case had not made a mistake in thinking that the money paid was due when in fact it was not due. They not only opposed the claim of the sales tax authorities but filed a writ petition contending that there was a violation of Art. 19(1)(f). They did not accept the decision of the single Judge but filed an appeal raising the same contention. They complained about the violation of their fundamental rights, the illegality of the order of forfeiture and the unreason-able restriction on their fundamental rights under Art. 19(1)(f). They protested against the order of forfeiture not only out of court but in court and only paid the amounts after the issue of legal process. They were never influenced by a mistake of law and never 'failed to 'appreciate the correct position in law. But the payments were made under coercion. The period of limitation for a suit against Government to recover money paid under protest is governed either by Art. 16 or Art. 62 of the Limitation Act, 1908 that is one year or three years. But taking the most favourable view that the period of six years fixed by Art. 120 of Limitation Act, 1908, would apply, that period would have expired in 1966. The position is not different even if the Limitation Act, 1963 is applied. A claim for money paid under coercion would be covered by Art. 113 of the Limitation Act, 1963, giving a period of 3 years from January 1, 1964 the date of commencement of the 1963-Act. Under s. 30(a) of the Limitation Act, 1963, the period of limitation for a suit which was formerly covered by Art. 120 of the Act of 1908; would be covered by Art. 113 of the 1963-Act. Therefore, the suit in the present case would have to be filed by January 1, 1967. As the petitioners came to this Court in February 1968 long after the date when they could have properly filed a suit, the application under Art. 32 must be rejected. [851 H; 852 A---D, G-H; 853 A--B; 854- B--H;, 855 A-B] Kantilal Babulal & Bros. v.H.C. Patel 2.1 S.T,C. 174, Sri Sri Shiba Prasad Singh, deceased, now represented by Kali Prasad Singha v. Maharaja Srish Chandra Nandi 76 I.A. 244, Sales Tax Officer v. Kanhaiya Lal Mukundlal Saraf, [1959] S.C.R. 1350 at 1363, Sales Tax Officer, Pilibhit v. Budh Prakash jai Prakash, [1955] 1 S.C.R. 243, State o/ Madhya Pradesh v. Bhailal Bhai [1964] 6 S.C.R. 261, State of Kerala v. Aluminum Industries Ltd. 16 S.T.C. 689, and A. V. Subbarao v. The State of Andhra Pradesh [1965] 2 S.C.R. 577, referred to. Per Sikri and Hegde, JJ. (dissenting): The petition has to be allowed and the petitioners must be granted the relief prayed for. Per Sikri, J.: Article 32(2) of the Constitution confers a judicial power on this Court, and like all judicial powers, unless there is an express provision to the contrary, it must be exercised in accordance with fundamental principles of administration of justice, and one such fundamental principle is that stale claims should not be given effect to. [833 F--G] The Limitation Act does not directly apply to a petition under Art. 32 and to invoke the analogy of the Limitation Act is not appropriate when dealing with petitions under Art. 32. If a claim is barred under the Limitation Act, prima facie it is a stale claim but even if it is not so barred, it may not' be entertained by this Court if on the facts of the case there is unreasonable delay. To issue a writ, direction or order in the nature of mandamus certiorari or prohibition after a delay of 12 years or 6 years would, except when there are exceptional circumstances, be strange. It is difficult to lay down a precise period, but a period of one year may be taken as the period beyond which the claim would be a stale claim unless the delay is explained. The time spent in making representations to higher authorities may be taken as a good explanation for any delay. Such a practice would not destroy the guarantee under Art. 32, because, the article nowhere lays down that a petition, however late, should be entertained. [833 G; 835 C-H] In the present case, the petitioners were mistaken in thinking that the money was liable to be paid under a valid law and hence under s. 72 of the Contract Act, the petitioners would be entitled to the relief claimed. The grounds urged before the High Court show that it never struck the petitioners that the provision could be challenged on the ground ulti-mately accepted by this Court. If the petitioners had not moved the High Court but had paid on demand they would have been entitled to maintain the petition in this Court. The position could not be worse became they exercised their right under Art. 226. When a petitioner approaches a High Court and fails, it could not be said that payments made by him thereafter were not under a mistake of law, even if the point on which this Court ultimately strikes down the provision under which the payments were made was never raised in the High Court. The petitioners discovered, like all assessees their mistake when this Court struck down s. 12A(4) of the 1946-Act and they came to this Court within 6 months of that date and hence there was no delay. [837 G--H; 839 B---E] Daryao v. State of U.P. [1962] 1 S.C.R. 574, Amalgamated Coalfields Ltd. v. Janapada Sabha, Chindwara, A.I.R. 1964 S.C. 1013, 1018, Sales Tax Officer v. Kanhaiyalal, [1959] S.C.R. 1350 andKantilal Babulal v. H.C. Patel, Sales Tax Officer, 21 S.T.C. 174, referred to. Per Hegde, J.: In view of the decision of this Court in Kantilal Babulal v.H.C. Patel, 21 S.T.C. 174 which struck down s. 12A(4) or the 1946-Act, the impugned collection under s. 21(4) of the 1953-Act was without the authority of law and consequently the exaction infringed the fundamental right of the petitioners under Art. 19(1)(f). Hence the petitioners have a fundamental right to approach this' Court under Art. 32 for relief and this Court has a duty to afford them the appropriate relief. Since the right given to the petitioners under Art. 32 is itself a fundamental right and does not depend on the discretionary powers of this Court, as in 1be case of Art. 226, it is inappropriate to equate the duty imposed on this Court to the powers of Chancery Court in England or the equitable jurisdiction of Courts in the United States. The fact that the petitioners have no equity in their favour is an irrelevant circumstance in deciding the nature of the right available to an aggrieved party under Art. 32. This Court is charged by the Constitution with the special responsibility of protecting and enforcing the fundamental rights, and hence leaches on the part of an aggrieved party cannot deprive him of his right to get relief under Art. 32. In fact, law reports do not show a single instance of this Court refusing to grant relief on the ground of delay. If this Court could refuse relief on the ground of delay, the power of the Court under Art. 32 would be a discretionary power and the right would cease to be a fundamental right. The provisions contained in the Limitation Act do not apply to proceedings under Arts. 226 and 32 and if these provisions of the Limitation Act are brought in indirectly to control the remedies conferred by the ConstitUtion, it would be a case of Parliament indirectly abridging the fundamental rights which this Court, in Golaknath's case, [1967] 2 S.C.R. 762, held that Parliament cannot do. The 'fear. that forgotten claims and discarded rights against Government may be sought to be enforced after the lapse of a number of years if fundamental rights are held to be enforceable without any time limit, is an exaggerated one, for, after all, a petitioner can only enforce an existing right. [856 D. F--H; 857 A, B, D, G-H; 858 A, D--E, F--H; 859 H] In this case the petitioners have an existing right even if their remedy under the ordinary law is barred. This Court struck down s. 12A(4) of the 1946-Act on a ground not put forward by the petitioners in the High Court but on a wholly different ground. A mere impression of a party that a provision of law may be ultra vires cannot be equated to knowledge that the provision is invalid. and the fact, that, after a futile attempt to get the provision in question declared invalid the petitioners gave up their fight and submitted to the law which was apparently valid is no proof of the fact that they knew that the provision in question was invalid. There is no reason for rejecting the plea of the petitioners that they became aware of the invalidity of the provision only after the decision of this Court in Kantilal's case, and since the petition was filed very soon thereafter, the petitioners were entitled to relief. [860 C--G] State of M.P.v. Bhailal Bhai, [1964] 6 S.C.R. 261, referred to. (2) (By Full Court): The petition is not barred by res judicata. Per Hidayatullah, C.J. Where the order of the High Court under Art. 22% is not a speaking order or the matter has been disposed of on some ground other than on merits, at the threshold, this Courtmay entertain the application under Art. 32. [831 B] Daryao v. State of U.P. [1962] 1 S.C.R. 574, explained. Per Sikri, Bachawat and Mitter, JJ.: When a petition under Art. 226 is dismissed not on the merits but because of the laches on the party applying for ,the writ or because an alternative remedy was available to him, such dismissal is not a bar to a subsequent petition under Art. 32, except in cases when the facts found by the High Court might them selves be relevant under Art. 32. [833 E--F; 839 F--G; 855 C--D,F-G] Daryao's case, [1962] 1 S.C.R. 574 and Joseph v. State of Kerala, A.I.R. 1965 S.C. 1514, referred to. Per Hegde. J.: It is only when the right claimed by the petitioner in his petition under Art. 32 had been claimed in the High Court under Art. 226 and negatived by the High Court and that decision had become final as it was not appealed against, that the petitioner would not be able to agitate the right over again in this Court under Art. 32. [856 B--C] Daryao's case, [1962] 1 S.C.R. 574, explained. - 22 of 89 and a 'B' form having been filed by the investigating Agency which was approved by the Magistrate, inclusion of the said period in the fresh FIR is itself bad and, therefore, the FIR is liable to be quashed. 5. Having considered the rival submissions made by counsel for the parties and having examined the provisions of the Criminal Procedure Code as well as the Prevention of Corruption Act we find ourselves unable to agree with the submission of Mr. Sibbal, the learned senior counsel appearing for the appellant that the present FIR itself is bad in law. Though the earlier period also could be a subject matter of investigation for variety of reasons like some assets not being taken into account or some materials brought during investigation not being taken into account yet at the same time the results of the earlier investigation cannot be totally obliterated and ignored by the Investigating Agency. For the aforesaid reasons, while we are not in a position to quash the FIR, but we would make it clear that the Investigating Authority will certainly look into the earlier proceedings and the result of investigation thereunder and the submission of 'B' Form which was duly accepted by the competent Court while investigating into the present proceedings as well as the observations made by us in this Judgment.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => ' Kapil Sibal,; Siddharth Dave,; Lakshmi Narayan,; ', 'counseldef' => '', 'court' => 'Supreme Court of India', 'court_type' => 'SC', 'decidedon' => '1999-02-19', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' G.B. Pattanaik and; M.B. Shah, JJ.', 'judgement' => '<p style="text-align: justify;">Pattanaik, J.</p><p style="text-align: justify;">1. Leave granted.</p><p style="text-align: justify;">2. The appellant is a Class-I officer of Karnataka Administrative Service. On 24.8.1989 a report was drawn up against him under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act alleging therein that he has assets disproportionate to his known source of income. After investigation the Inspector General of Police, Bureau of Investigation, Karnataka Lokayukta authorised the Investigating Officer to submit a 'B' report before the Special Judge, Bangalore where the matter was pending and after issuance of a public notice in the prescribed form inviting objections to the aforesaid 'B' report from the interested persons by order dated 11.4.1991, the said 'B' report was accepted by the learned Special Judge. Properties of the appellant which had been earlier attached were directed to be released. On 25.7.95 the Supdt. of Police Karnataka Lokayukta authorised the Deputy Supdt. of Police to investigate into the assets of the appellant and find out whether an offence has been committed under Section 13(1)(e) read with Section 13(2) of the <a href="/act/51650/prevention-of-corruption-act-1988-complete-act">Prevention of Corruption Act, 1988</a>. On the same day an FIR was filed alleging commission of offence against the appellant under Section 13(1)(e) read with Section 13(2) of the Act and the gravamen of the allegation is that between the period from 1.8.78 to 25.7.95 the appellant has acquired assets amounting to Rs. 58,77,000 as against his known source of income of Rs. 9,90,000 and thereby the disproportion is to the tune of Rs. 52,17,000. The appellant filed a Criminal Petition before the High Court of Karnataka invoking jurisdiction under Section 482 of the CrPC praying for quashing of the FIR in LAC Crime No. 21 of 95 inter alia on the ground that Crime No. 22 of 89 having been registered against the appellant for a check period 1.8.78 till 24.8.89 and after due investigation a 'B' report having been filed and the same being accepted it was not proper for the investigating Authority to file another FIR which includes the earlier check period of 1.8.78 till 24.8.89. The learned Judge of the High Court, however, was not persuaded to agree with the aforesaid submission of the learned Counsel appearing for the appellant, and on examining the FIR and the allegations made therein came to the conclusion that it was a set of fresh allegations in respect of fresh alleged assets during a fresh check period and as such, question of quashing the FIR does not arise. It is against the aforesaid order of the learned Single Judge of Karnataka High Court the present appeal has been preferred.</p><p style="text-align: justify;">3. Mr. Sibbal, the learned senior counsel appearing for the appellant contended that the assets of the appellant for the period 1.8.78 till 24.8.89 having been the subject matter of an investigation pursuant to Crime Case No. 22 of 89 and a 'B' form having been filed by the investigating Agency which was approved by the Magistrate, inclusion of the said period in the fresh FIR is itself bad and, therefore, the FIR is liable to be quashed. Mr. Sibbal, also contended that in view of Sub-section (8) of Section 173 of the CrPC the Investigating Agency has the right to file fresh report on the basis of fresh materials but that not having been done the impugned FIR for the period 1.8.78 till 25.7.95 cannot be sustained. According to Mr. Sibbal the very fact that the Investigating Agency is not aware of the earlier criminal proceeding and the investigation thereupon which ultimately ended in a 'B' form and accepted by the Court indicates the total non-application of mind and pursuing the appellant maliciously and, therefore, the Court should interfere with the proceeding. According to Mr. Sibbal after the FIR is given whatever statements are received are in course of investigation under Section 161 of the CrPC and that being the position there cannot be two FIRs for the period 1.8.78 till 24.8.89. The learned Counsel also urged that in view of the provisions contained in Section 13(1)(e) of the Prevention of Corruption Act the explanation offered by the accused in respect of the prior proceedings having been accepted the said assets could not have been again taken into account for a subsequent criminal case. Mr. Sibbal also further submitted that in any view of the matter the assets of the Government servant are to be valued on the date of acquisition and not on the date of verifying of the fact and the very asset which was valued in course of earlier proceeding at Rs. one lakh should not have been valued at Rs. three lakhs or Rs. Four lakhs, as in the present case and such valuation itself is an unfair investigation causing undue harassment to the accused appellant.</p><p style="text-align: justify;">4. Mr. Mahale, the learned Counsel appearing for the respondents on the other hand submitted, that the parameters for quashing an FIR having been laid down by this Court in Bhajan Lal's case and certain illustrations given by this Court, the present case does not fall within the said parameters and, therefore, the High Court was fully justified in not accepting the prayer of the accused appellant. Mr. Mahale also submitted that acceptance of a 'B' form by the Court cannot be held to be an order of acquittal after the accused being tried as provided under Section 300 of the CrPC, and therefore, there is no legal impediment to have a fresh First Information Report for the entire service period of a government servant and investigate into the assets of the employee for the entire period. Mr. Mahale, however, fairly stated that the assets of the employee will have to be valued on the date of acquisition and not on the date the Criminal case is being instituted. He also submitted that the investigating Agency is duty bound to take into consideration the fact of 'B' form filed in Criminal Case No. 22 of 89 and the order of the Magistrate passed thereon before ultimately filing the chargesheet or the 'B' form as the case may be, in the present case. But according to him the very investigation cannot be quashed at this stage.</p><p style="text-align: justify;">5. Having considered the rival submissions made by counsel for the parties and having examined the provisions of the Criminal Procedure Code as well as the Prevention of Corruption Act we find ourselves unable to agree with the submission of Mr. Sibbal, the learned senior counsel appearing for the appellant that the present FIR itself is bad in law. We do not find any provision in the Code which debars the filing of an FIR and investigating into the alleged offences merely because for an earlier period namely 1.8.78 to 24.8.89 there was First Information Report which was duly investigated into and culminated in a 'B' form which was accepted by a Competent Court. At the same time we are also of the opinion that the conclusion of the High Court that the present proceeding relates to fresh alleged assets and fresh check period is not wholly correct, in as much as admittedly the check period from 1.8.78 till 24.8.89 was the subject matter in the Crime Case No. 22 of 89 and the same ended in submission of 'B' form. Though the earlier period also could be a subject matter of investigation for variety of reasons like some assets not being taken into account or some materials brought during investigation not being taken into account yet at the same time the results of the earlier investigation cannot be totally obliterated and ignored by the Investigating Agency. But that cannot be a ground for quashing of the First Information Report itself and for injuncting the investigating authority to investigate into the offence alleged. We also find sufficient force in the arguments of Mr. Sibbal that the assets which were valued in the earlier investigation proceeding at a particular value cannot be valued higher in the present proceeding unless any positive ground is there for such valuation. For example, a car which was valued in the earlier proceeding at Rs. 60,000 could not have been valued at Rs. 1,70,000 in the present proceedings but at this stage the Court is not required to go into these matters as investigation is only at threshold. For the aforesaid reasons, while we are not in a position to quash the FIR, but we would make it clear that the Investigating Authority will certainly look into the earlier proceedings and the result of investigation thereunder and the submission of 'B' Form which was duly accepted by the competent Court while investigating into the present proceedings as well as the observations made by us in this Judgment. Subject to the aforesaid observations this appeal is disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR1999SC1765; 1999(1)ALD(Cri)468; 1999(2)ALT(Cri)280; 1999CriLJ2583; 1999(1)Crimes109(SC); JT1999(1)SC540; 1999(1)SCALE561; (1999)3SCC247; [1999]1SCR780; 2000(1)SLJ106(SC)', 'ratiodecidendi' => '', 'respondent' => 'State of Karnataka', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '645091' ) ) $title_for_layout = 'M. Krishna Vs. State of Karnataka Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Section 13(1)(e', (int) 1 => 'Section 13(2', (int) 2 => 'Section 13(1)(e', (int) 3 => 'Section 13(2', (int) 4 => 'Section 13(1)(e', (int) 5 => 'Section 13(2', (int) 6 => 'Section 482', (int) 7 => 'Section 173', (int) 8 => 'Section 161 of the CrPC', (int) 9 => 'Section 300', (int) 10 => 'the Criminal Procedure Code', (int) 11 => 'the Crime Case No' ), 'NORP' => array( (int) 0 => 'J.1' ), 'ORG' => array( (int) 0 => 'Karnataka Administrative Service', (int) 1 => 'the Prevention of Corruption Act', (int) 2 => 'Bureau of Investigation', (int) 3 => 'the Prevention of Corruption Act', (int) 4 => 'FIR', (int) 5 => 'the High Court', (int) 6 => 'CrPC', (int) 7 => 'FIR', (int) 8 => 'Authority', (int) 9 => 'FIR', (int) 10 => 'the High Court', (int) 11 => 'FIR', (int) 12 => 'FIR', (int) 13 => 'Karnataka High Court', (int) 14 => 'Agency', (int) 15 => 'Magistrate', (int) 16 => 'FIR', (int) 17 => 'FIR', (int) 18 => 'FIR', (int) 19 => 'the Investigating Agency', (int) 20 => 'Court', (int) 21 => 'Court', (int) 22 => 'FIR', (int) 23 => 'Counsel', (int) 24 => 'the Prevention of Corruption Act', (int) 25 => 'Government', (int) 26 => 'FIR', (int) 27 => 'Court', (int) 28 => 'Court', (int) 29 => 'the High Court', (int) 30 => 'Court', (int) 31 => 'CrPC', (int) 32 => 'First Information Report', (int) 33 => 'Agency', (int) 34 => 'Magistrate', (int) 35 => 'the Prevention of Corruption Act', (int) 36 => 'FIR', (int) 37 => 'FIR', (int) 38 => 'First Information Report', (int) 39 => 'a Competent Court', (int) 40 => 'the High Court', (int) 41 => 'the Investigating Agency', (int) 42 => 'the First Information Report', (int) 43 => 'Court', (int) 44 => 'FIR', (int) 45 => 'the Investigating Authority', (int) 46 => 'Court' ), 'CARDINAL' => array( (int) 0 => '24.8.1989', (int) 1 => '25.7.95', (int) 2 => '1.8.78', (int) 3 => '25.7.95', (int) 4 => '58,77,000', (int) 5 => '52,17,000', (int) 6 => '21', (int) 7 => '95', (int) 8 => '22', (int) 9 => '89', (int) 10 => '24.8.89', (int) 11 => '1.8.78', (int) 12 => '24.8.89', (int) 13 => '24.8.89', (int) 14 => '22', (int) 15 => '8)', (int) 16 => '25.7.95', (int) 17 => 'two', (int) 18 => '24.8.89', (int) 19 => 'one', (int) 20 => 'three', (int) 21 => 'Four', (int) 22 => '22', (int) 23 => '1.8.78', (int) 24 => '24.8.89', (int) 25 => '1.8.78', (int) 26 => '24.8.89', (int) 27 => '22', (int) 28 => '60,000', (int) 29 => '1,70,000' ), 'PERSON' => array( (int) 0 => 'Karnataka Lokayukta', (int) 1 => 'Bangalore', (int) 2 => 'Karnataka Lokayukta', (int) 3 => 'Sibbal', (int) 4 => 'Sibbal', (int) 5 => 'Sibbal', (int) 6 => 'Sibbal', (int) 7 => 'Sibbal', (int) 8 => 'Mahale', (int) 9 => 'Bhajan Lal's', (int) 10 => 'Mahale', (int) 11 => 'Mahale', (int) 12 => 'Criminal', (int) 13 => 'Sibbal', (int) 14 => 'Sibbal' ), 'DATE' => array( (int) 0 => '11.4.1991', (int) 1 => '1988', (int) 2 => 'the same day', (int) 3 => '89', (int) 4 => 'Section 13(1)(e', (int) 5 => '89', (int) 6 => '89' ), 'GPE' => array( (int) 0 => 'Karnataka', (int) 1 => 'Single' ), 'WORK_OF_ART' => array( (int) 0 => 'Crime Case No', (int) 1 => 'Criminal Case No' ), 'PRODUCT' => array( (int) 0 => 'Judgment' ) ) $desc = array( 'Judgement' => array( 'id' => '645091', 'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 161, 173(8), 300 and 482; <a href="/act/51650/prevention-of-corruption-act-1988-complete-act">Prevention of Corruption Act, 1988</a> - Sections 13(1 and 2)', 'appealno' => 'Crl.A. No. 216 of 1999', 'appellant' => 'M. Krishna', 'authreffered' => '', 'casename' => 'M. Krishna Vs. State of Karnataka', 'casenote' => ' - [M. Hidayatullah, C.J.,; G.K. Mitter,; K.S. Hedge,; R.S. Bachawat and; S.M. Sik, JJ.] The sales tax authorities directed that the sum realised as sales tax by the petitioners from their customers and paid over to the State should be refunded to the petitioners on condition that the petitioners passed on the amounts to their customers. Since the petitioners did not fulfil the condition, the sales tax officer 'forfeited the sum under s. 21(4) of .the Bombay Sales Tax Act, 1953, by order dated March 17, 1958. On March 28, the petitioners filed a writ petition in the High Court and contended that s. 21(4) was ultra rites the powers of the State Legislature and was violative of Arts. 19(1)(f) and 265 of the Constitution and hence, they were not liable to repay the amount. The single Judge dismissed the petition on the ground that the petitioners defrauded their customers and so were not entitled to any relief even if there was a violation of fundamental rights. The appellate bench of the High Court dismissed the appeal on the ground that it would not interfere with the discretionary order of the single Judge. On December 24, 1958, the Collector attached the properties of the petitioners for recovering the amount as arrears of land revenue and the petitioners paid the amount in instalments between August 1959 and August 1960. On September 29, 1967 this Court in Kantilal Babual v. H.C. Panel, 21 S.T.C. 174 (S.C.) struck down s. 12A(4) of Bombay Sales Tax Act, 1946, corresponding to s. 2'1(4) of the 1953- Act, on the ground that it was violative of Art. 19(1)(f) inasmuch as the power conferred by the section was unguided, uncanalised and uncontrolled and so was not a reasonable restriction on the fundamental right guaranteed under the Article. On the assumption that s. 21(4) of the 1953-Act is also liable to be struck down on the same ground, on February 9, 1968, the petitioners flied a writ petition under Art. 32 claiming a refund of the amount. The petitioners contended that they did not know that the section was ultra vires on the particular ground on which this Court struck it down, that they paid the amounts under coercion or mistake, that the mistake was discovered on September 29, 1967 (the date of the judgment of this Court) and that they were entitled to the refund under s. 72 of the Indian Contract Act, 1872. On the questions: (1) Whether the petition is liable to be dismissed on the ground of Inches; and (2) Whether the petition is barred by res judicata in view of the decision of the High Court. HELD: (Per Hidayatullah, C.J., Bachawat and Mitter, JJ.): (1) The petition must be dismissed on the ground of Inches. Per Hidayatullah C.J.: Article 32 gives the right to move this Court by appropriate proceedings for enforcement of fundamental rights and the State cannot place any hindrance in the way of an aggrieved person. But once the matter has reached this Court, the extent or manner of interference is for this Court to decide. This Court has put itself in restraint in the matter of petitions under Art. 32. For example, this Court refrains from acting under the Article if the party had already moved the High Court under Art. 226 and if the High Court had exercised its parallel jurisdiction. In such a case, this Court would not allow fresh proceedings to be started under Art. 32 but would insist on the decision of the High Court being brought before it on appeal. Similarly, in inquiring into belated and stale claims, this Court should take note of evidence of neglect of the petitioner's own rights. for a long time or of the rights of innocent parties which might have emerged by reason of the delay. The party aggrieved must therefore move this Court at the earliest possible time and explain satisfactorily all semblance of delay. It is not possible for this Court to lay down any specific period as the ultimate limit of action and each case will have to be considered on its own facts. A petition under Art. 32 is neither a suit nor an application to which the Limitation Act applies. Further, putting curbs in the way of enforcement of fundamental rights through such legislative action might be questioned under Art. 13(2). for, if a short period of limitation is prescribed the fundamental right might be frustrated. Therefore, this Court has to exercise its discretion from case to case, and where there is appearance of an avoidable delay and this delay affects the merits of the claim, this Court will consider it, and in a proper case, hold the party disentitled to invoke its extraordinary jurisdiction. [830C, DE. G--H; 831 A--B. C--E; 832 A--E] In the present case, the petitioners moved unsuccessfully the High Court for relief on the. ground that the recovery from them was unconstitutional, but did not come up in appeal to this Court. There is thus no question of any mistake of law. Having set the machinery of law in motion they cannot abandon it to resume it after a .number of years because another person got the statute declared unconstitutional. They should have known the exact ground of unconstitutionality since every one is presumed to know the law; and pursued the ground in this Court. Not having done so, and having abandoned his own litigation years ago. this Court will not apply the analogy of the Article in the Limitation Act in cases of mistake of law and give him relief. [832 F--H; 833 A--B, C--E] Per Bachawat, J.: The normal remedy for recovery of money paid to the State under coercion or mistake of law is by suit. The right to move this Court for enforcement of fundamental rights is guaranteed by Art. 32, and no period of limitation is prescribed for such a petition. The writ issues as a matter of course if a breach of a 'fundamental right established, but this does not mean that in giving relief under the Article this Court may ignore all laws of procedure. The extraordinary remedies under Arts. 32 and 226 of the Constitution are not intended to enable a claimant to recover monies the recovery of which by suit is barred by limitation. In the absence any roles of procedure under Art. 145(1)(c) this Court may adopt any reasonable rule. For example. this Court will not allow a petitioner to move this Court under Art. 32 on a petition containing misleading and inaccurate statements. Similarly, the general principles of res judicata are applied where applicable on grounds of public policy. Therefore, where the remedy in a writ application under Art. 32 or Art. 226 corresponds to a 'remedy in an ordinary suit and the latter remedy is subject to the bar of a statute of limitation, the Court imposes on analogy the same limitation on the summary remedy in the writ jurisdiction even though there is no express statutory bar of limitation, on grounds of public policy and on the principle that the laws aid the vigilant and not those who slumber. [842 A--F; 843 A--F] In the present case, the petitioners were not labouring under any mistake of law when they made the payments, because, in their writ petition in the High Court, they contended that the order was invalid and that s. 21(4) of the Bombay Sales Tax Act, 1953, was ultra vires and unconstitutional although they did not know the precise ground upon which this Court subsequently struck down s. 12A(4) of the 1946-ACt. Therefore, when they made the payments in 1959 and 1960 they were made under coercion and not under a mistake of law in thinking that the money was due. Hence the petitioners could not claim any relief on the ground of mistake. They could rely on the ground of coercion but a suit for the recovery of money on the ground of coercion instituted in February 1968, would have been barred by limitation. A suit for recovery of money on the ground of coercion instituted after January 1, 1964 would be governed by Art. 24 of the Limitation Act, 1963, and the period of limitation would be 3 years from the dates in 1959 and 1960 when the amounts were paid. The petitioners could not obtain an extension of the period under s. 30(a) of the Limitation Act, 1963, as Art. 62 of the Limitation Act, 1908, which governs a suit for recovery of tax or other levy illegally collected, prescribed the same period of limitation. [840 F--H; 841 A---C] Shiva Prasad Singh v. Srish Chandra Nandi, (1949) L.R. 76 I.A. 244, 254, Sales Tax Officer v. Mukundlal Saraf [1959] S.C.R. 1350, 1361, 1362, A. Venkata Subba Rao v. State of Andhra Pradesh[1965] 2 S.C.R. 577, 612--620, State of Madhya Pradesh v. Bhailal Bhai & Ors. [1964] 6 S.C.R. 261 274, Daryao v. State of U.P. [1962] 1 S.C.R. 574, Sobhraj Odharmal v. State of Ralasthan, [1963] Supp. 1 S.C.R. 99, 111 and Her Highness Ruckmaboye v. Lulloobhoy Mottickchund, (185152) 5 M.I.A. 234, 251, referred to.- Per Mitter, J.: The Limitation Act does not in terms apply to proceedings against the State under Art. 32 in respect of violation of fundamental rights. A person complaining of such infraction has. one of three courses open to him. He can file a suit, invoke Art. 226 or Art. 32Suits are governed by the Limitation Act. In the matter of the issue of a writ under Art. 226 also, courts have refused to give relief in cases of long or unreasonable delay, although the Limitation Act does not apply, and the maximum period fixed by the Legislature for filing a suit is ordinarily taken to be a reasonable standard by which delay in seeking the remedy under Art. 226 can be measured. There is no reason for applying a different test when a party comes to this Court under Art. 32. There is public policy behind all statutes of limitation and a claim based on the infraction of fundamental rights ought not to be entertained if made beyond the period fixed by the Limitation Act for the enforcement of the right by way of suit, that is, although the Limitation Act does not apply, the period fixed by it should be taken to be a true measure of the time within which a person can be allowed to raise a plea successfully under Art. 32. [853 C--H; 854 A--B] The petitioners in this case had not made a mistake in thinking that the money paid was due when in fact it was not due. They not only opposed the claim of the sales tax authorities but filed a writ petition contending that there was a violation of Art. 19(1)(f). They did not accept the decision of the single Judge but filed an appeal raising the same contention. They complained about the violation of their fundamental rights, the illegality of the order of forfeiture and the unreason-able restriction on their fundamental rights under Art. 19(1)(f). They protested against the order of forfeiture not only out of court but in court and only paid the amounts after the issue of legal process. They were never influenced by a mistake of law and never 'failed to 'appreciate the correct position in law. But the payments were made under coercion. The period of limitation for a suit against Government to recover money paid under protest is governed either by Art. 16 or Art. 62 of the Limitation Act, 1908 that is one year or three years. But taking the most favourable view that the period of six years fixed by Art. 120 of Limitation Act, 1908, would apply, that period would have expired in 1966. The position is not different even if the Limitation Act, 1963 is applied. A claim for money paid under coercion would be covered by Art. 113 of the Limitation Act, 1963, giving a period of 3 years from January 1, 1964 the date of commencement of the 1963-Act. Under s. 30(a) of the Limitation Act, 1963, the period of limitation for a suit which was formerly covered by Art. 120 of the Act of 1908; would be covered by Art. 113 of the 1963-Act. Therefore, the suit in the present case would have to be filed by January 1, 1967. As the petitioners came to this Court in February 1968 long after the date when they could have properly filed a suit, the application under Art. 32 must be rejected. [851 H; 852 A---D, G-H; 853 A--B; 854- B--H;, 855 A-B] Kantilal Babulal & Bros. v.H.C. Patel 2.1 S.T,C. 174, Sri Sri Shiba Prasad Singh, deceased, now represented by Kali Prasad Singha v. Maharaja Srish Chandra Nandi 76 I.A. 244, Sales Tax Officer v. Kanhaiya Lal Mukundlal Saraf, [1959] S.C.R. 1350 at 1363, Sales Tax Officer, Pilibhit v. Budh Prakash jai Prakash, [1955] 1 S.C.R. 243, State o/ Madhya Pradesh v. Bhailal Bhai [1964] 6 S.C.R. 261, State of Kerala v. Aluminum Industries Ltd. 16 S.T.C. 689, and A. V. Subbarao v. The State of Andhra Pradesh [1965] 2 S.C.R. 577, referred to. Per Sikri and Hegde, JJ. (dissenting): The petition has to be allowed and the petitioners must be granted the relief prayed for. Per Sikri, J.: Article 32(2) of the Constitution confers a judicial power on this Court, and like all judicial powers, unless there is an express provision to the contrary, it must be exercised in accordance with fundamental principles of administration of justice, and one such fundamental principle is that stale claims should not be given effect to. [833 F--G] The Limitation Act does not directly apply to a petition under Art. 32 and to invoke the analogy of the Limitation Act is not appropriate when dealing with petitions under Art. 32. If a claim is barred under the Limitation Act, prima facie it is a stale claim but even if it is not so barred, it may not' be entertained by this Court if on the facts of the case there is unreasonable delay. To issue a writ, direction or order in the nature of mandamus certiorari or prohibition after a delay of 12 years or 6 years would, except when there are exceptional circumstances, be strange. It is difficult to lay down a precise period, but a period of one year may be taken as the period beyond which the claim would be a stale claim unless the delay is explained. The time spent in making representations to higher authorities may be taken as a good explanation for any delay. Such a practice would not destroy the guarantee under Art. 32, because, the article nowhere lays down that a petition, however late, should be entertained. [833 G; 835 C-H] In the present case, the petitioners were mistaken in thinking that the money was liable to be paid under a valid law and hence under s. 72 of the Contract Act, the petitioners would be entitled to the relief claimed. The grounds urged before the High Court show that it never struck the petitioners that the provision could be challenged on the ground ulti-mately accepted by this Court. If the petitioners had not moved the High Court but had paid on demand they would have been entitled to maintain the petition in this Court. The position could not be worse became they exercised their right under Art. 226. When a petitioner approaches a High Court and fails, it could not be said that payments made by him thereafter were not under a mistake of law, even if the point on which this Court ultimately strikes down the provision under which the payments were made was never raised in the High Court. The petitioners discovered, like all assessees their mistake when this Court struck down s. 12A(4) of the 1946-Act and they came to this Court within 6 months of that date and hence there was no delay. [837 G--H; 839 B---E] Daryao v. State of U.P. [1962] 1 S.C.R. 574, Amalgamated Coalfields Ltd. v. Janapada Sabha, Chindwara, A.I.R. 1964 S.C. 1013, 1018, Sales Tax Officer v. Kanhaiyalal, [1959] S.C.R. 1350 andKantilal Babulal v. H.C. Patel, Sales Tax Officer, 21 S.T.C. 174, referred to. Per Hegde, J.: In view of the decision of this Court in Kantilal Babulal v.H.C. Patel, 21 S.T.C. 174 which struck down s. 12A(4) or the 1946-Act, the impugned collection under s. 21(4) of the 1953-Act was without the authority of law and consequently the exaction infringed the fundamental right of the petitioners under Art. 19(1)(f). Hence the petitioners have a fundamental right to approach this' Court under Art. 32 for relief and this Court has a duty to afford them the appropriate relief. Since the right given to the petitioners under Art. 32 is itself a fundamental right and does not depend on the discretionary powers of this Court, as in 1be case of Art. 226, it is inappropriate to equate the duty imposed on this Court to the powers of Chancery Court in England or the equitable jurisdiction of Courts in the United States. The fact that the petitioners have no equity in their favour is an irrelevant circumstance in deciding the nature of the right available to an aggrieved party under Art. 32. This Court is charged by the Constitution with the special responsibility of protecting and enforcing the fundamental rights, and hence leaches on the part of an aggrieved party cannot deprive him of his right to get relief under Art. 32. In fact, law reports do not show a single instance of this Court refusing to grant relief on the ground of delay. If this Court could refuse relief on the ground of delay, the power of the Court under Art. 32 would be a discretionary power and the right would cease to be a fundamental right. The provisions contained in the Limitation Act do not apply to proceedings under Arts. 226 and 32 and if these provisions of the Limitation Act are brought in indirectly to control the remedies conferred by the ConstitUtion, it would be a case of Parliament indirectly abridging the fundamental rights which this Court, in Golaknath's case, [1967] 2 S.C.R. 762, held that Parliament cannot do. The 'fear. that forgotten claims and discarded rights against Government may be sought to be enforced after the lapse of a number of years if fundamental rights are held to be enforceable without any time limit, is an exaggerated one, for, after all, a petitioner can only enforce an existing right. [856 D. F--H; 857 A, B, D, G-H; 858 A, D--E, F--H; 859 H] In this case the petitioners have an existing right even if their remedy under the ordinary law is barred. This Court struck down s. 12A(4) of the 1946-Act on a ground not put forward by the petitioners in the High Court but on a wholly different ground. A mere impression of a party that a provision of law may be ultra vires cannot be equated to knowledge that the provision is invalid. and the fact, that, after a futile attempt to get the provision in question declared invalid the petitioners gave up their fight and submitted to the law which was apparently valid is no proof of the fact that they knew that the provision in question was invalid. There is no reason for rejecting the plea of the petitioners that they became aware of the invalidity of the provision only after the decision of this Court in Kantilal's case, and since the petition was filed very soon thereafter, the petitioners were entitled to relief. [860 C--G] State of M.P.v. Bhailal Bhai, [1964] 6 S.C.R. 261, referred to. (2) (By Full Court): The petition is not barred by res judicata. Per Hidayatullah, C.J. Where the order of the High Court under Art. 22% is not a speaking order or the matter has been disposed of on some ground other than on merits, at the threshold, this Courtmay entertain the application under Art. 32. [831 B] Daryao v. State of U.P. [1962] 1 S.C.R. 574, explained. Per Sikri, Bachawat and Mitter, JJ.: When a petition under Art. 226 is dismissed not on the merits but because of the laches on the party applying for ,the writ or because an alternative remedy was available to him, such dismissal is not a bar to a subsequent petition under Art. 32, except in cases when the facts found by the High Court might them selves be relevant under Art. 32. [833 E--F; 839 F--G; 855 C--D,F-G] Daryao's case, [1962] 1 S.C.R. 574 and Joseph v. State of Kerala, A.I.R. 1965 S.C. 1514, referred to. Per Hegde. J.: It is only when the right claimed by the petitioner in his petition under Art. 32 had been claimed in the High Court under Art. 226 and negatived by the High Court and that decision had become final as it was not appealed against, that the petitioner would not be able to agitate the right over again in this Court under Art. 32. [856 B--C] Daryao's case, [1962] 1 S.C.R. 574, explained. - 22 of 89 and a 'B' form having been filed by the investigating Agency which was approved by the Magistrate, inclusion of the said period in the fresh FIR is itself bad and, therefore, the FIR is liable to be quashed. 5. Having considered the rival submissions made by counsel for the parties and having examined the provisions of the Criminal Procedure Code as well as the Prevention of Corruption Act we find ourselves unable to agree with the submission of Mr. Sibbal, the learned senior counsel appearing for the appellant that the present FIR itself is bad in law. Though the earlier period also could be a subject matter of investigation for variety of reasons like some assets not being taken into account or some materials brought during investigation not being taken into account yet at the same time the results of the earlier investigation cannot be totally obliterated and ignored by the Investigating Agency. For the aforesaid reasons, while we are not in a position to quash the FIR, but we would make it clear that the Investigating Authority will certainly look into the earlier proceedings and the result of investigation thereunder and the submission of 'B' Form which was duly accepted by the competent Court while investigating into the present proceedings as well as the observations made by us in this Judgment.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => ' Kapil Sibal,; Siddharth Dave,; Lakshmi Narayan,; ', 'counseldef' => '', 'court' => 'Supreme Court of India', 'court_type' => 'SC', 'decidedon' => '1999-02-19', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' G.B. Pattanaik and; M.B. Shah, JJ.', 'judgement' => '<p style="text-align: justify;">Pattanaik, J.</p><p style="text-align: justify;">1. Leave granted.</p><p style="text-align: justify;">2. The appellant is a Class-I officer of Karnataka Administrative Service. On 24.8.1989 a report was drawn up against him under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act alleging therein that he has assets disproportionate to his known source of income. After investigation the Inspector General of Police, Bureau of Investigation, Karnataka Lokayukta authorised the Investigating Officer to submit a 'B' report before the Special Judge, Bangalore where the matter was pending and after issuance of a public notice in the prescribed form inviting objections to the aforesaid 'B' report from the interested persons by order dated 11.4.1991, the said 'B' report was accepted by the learned Special Judge. Properties of the appellant which had been earlier attached were directed to be released. On 25.7.95 the Supdt. of Police Karnataka Lokayukta authorised the Deputy Supdt. of Police to investigate into the assets of the appellant and find out whether an offence has been committed under Section 13(1)(e) read with Section 13(2) of the <a href="/act/51650/prevention-of-corruption-act-1988-complete-act">Prevention of Corruption Act, 1988</a>. On the same day an FIR was filed alleging commission of offence against the appellant under Section 13(1)(e) read with Section 13(2) of the Act and the gravamen of the allegation is that between the period from 1.8.78 to 25.7.95 the appellant has acquired assets amounting to Rs. 58,77,000 as against his known source of income of Rs. 9,90,000 and thereby the disproportion is to the tune of Rs. 52,17,000. The appellant filed a Criminal Petition before the High Court of Karnataka invoking jurisdiction under Section 482 of the CrPC praying for quashing of the FIR in LAC Crime No. 21 of 95 inter alia on the ground that Crime No. 22 of 89 having been registered against the appellant for a check period 1.8.78 till 24.8.89 and after due investigation a 'B' report having been filed and the same being accepted it was not proper for the investigating Authority to file another FIR which includes the earlier check period of 1.8.78 till 24.8.89. The learned Judge of the High Court, however, was not persuaded to agree with the aforesaid submission of the learned Counsel appearing for the appellant, and on examining the FIR and the allegations made therein came to the conclusion that it was a set of fresh allegations in respect of fresh alleged assets during a fresh check period and as such, question of quashing the FIR does not arise. It is against the aforesaid order of the learned Single Judge of Karnataka High Court the present appeal has been preferred.</p><p style="text-align: justify;">3. Mr. Sibbal, the learned senior counsel appearing for the appellant contended that the assets of the appellant for the period 1.8.78 till 24.8.89 having been the subject matter of an investigation pursuant to Crime Case No. 22 of 89 and a 'B' form having been filed by the investigating Agency which was approved by the Magistrate, inclusion of the said period in the fresh FIR is itself bad and, therefore, the FIR is liable to be quashed. Mr. Sibbal, also contended that in view of Sub-section (8) of Section 173 of the CrPC the Investigating Agency has the right to file fresh report on the basis of fresh materials but that not having been done the impugned FIR for the period 1.8.78 till 25.7.95 cannot be sustained. According to Mr. Sibbal the very fact that the Investigating Agency is not aware of the earlier criminal proceeding and the investigation thereupon which ultimately ended in a 'B' form and accepted by the Court indicates the total non-application of mind and pursuing the appellant maliciously and, therefore, the Court should interfere with the proceeding. According to Mr. Sibbal after the FIR is given whatever statements are received are in course of investigation under Section 161 of the CrPC and that being the position there cannot be two FIRs for the period 1.8.78 till 24.8.89. The learned Counsel also urged that in view of the provisions contained in Section 13(1)(e) of the Prevention of Corruption Act the explanation offered by the accused in respect of the prior proceedings having been accepted the said assets could not have been again taken into account for a subsequent criminal case. Mr. Sibbal also further submitted that in any view of the matter the assets of the Government servant are to be valued on the date of acquisition and not on the date of verifying of the fact and the very asset which was valued in course of earlier proceeding at Rs. one lakh should not have been valued at Rs. three lakhs or Rs. Four lakhs, as in the present case and such valuation itself is an unfair investigation causing undue harassment to the accused appellant.</p><p style="text-align: justify;">4. Mr. Mahale, the learned Counsel appearing for the respondents on the other hand submitted, that the parameters for quashing an FIR having been laid down by this Court in Bhajan Lal's case and certain illustrations given by this Court, the present case does not fall within the said parameters and, therefore, the High Court was fully justified in not accepting the prayer of the accused appellant. Mr. Mahale also submitted that acceptance of a 'B' form by the Court cannot be held to be an order of acquittal after the accused being tried as provided under Section 300 of the CrPC, and therefore, there is no legal impediment to have a fresh First Information Report for the entire service period of a government servant and investigate into the assets of the employee for the entire period. Mr. Mahale, however, fairly stated that the assets of the employee will have to be valued on the date of acquisition and not on the date the Criminal case is being instituted. He also submitted that the investigating Agency is duty bound to take into consideration the fact of 'B' form filed in Criminal Case No. 22 of 89 and the order of the Magistrate passed thereon before ultimately filing the chargesheet or the 'B' form as the case may be, in the present case. But according to him the very investigation cannot be quashed at this stage.</p><p style="text-align: justify;">5. Having considered the rival submissions made by counsel for the parties and having examined the provisions of the Criminal Procedure Code as well as the Prevention of Corruption Act we find ourselves unable to agree with the submission of Mr. Sibbal, the learned senior counsel appearing for the appellant that the present FIR itself is bad in law. We do not find any provision in the Code which debars the filing of an FIR and investigating into the alleged offences merely because for an earlier period namely 1.8.78 to 24.8.89 there was First Information Report which was duly investigated into and culminated in a 'B' form which was accepted by a Competent Court. At the same time we are also of the opinion that the conclusion of the High Court that the present proceeding relates to fresh alleged assets and fresh check period is not wholly correct, in as much as admittedly the check period from 1.8.78 till 24.8.89 was the subject matter in the Crime Case No. 22 of 89 and the same ended in submission of 'B' form. Though the earlier period also could be a subject matter of investigation for variety of reasons like some assets not being taken into account or some materials brought during investigation not being taken into account yet at the same time the results of the earlier investigation cannot be totally obliterated and ignored by the Investigating Agency. But that cannot be a ground for quashing of the First Information Report itself and for injuncting the investigating authority to investigate into the offence alleged. We also find sufficient force in the arguments of Mr. Sibbal that the assets which were valued in the earlier investigation proceeding at a particular value cannot be valued higher in the present proceeding unless any positive ground is there for such valuation. For example, a car which was valued in the earlier proceeding at Rs. 60,000 could not have been valued at Rs. 1,70,000 in the present proceedings but at this stage the Court is not required to go into these matters as investigation is only at threshold. For the aforesaid reasons, while we are not in a position to quash the FIR, but we would make it clear that the Investigating Authority will certainly look into the earlier proceedings and the result of investigation thereunder and the submission of 'B' Form which was duly accepted by the competent Court while investigating into the present proceedings as well as the observations made by us in this Judgment. Subject to the aforesaid observations this appeal is disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR1999SC1765; 1999(1)ALD(Cri)468; 1999(2)ALT(Cri)280; 1999CriLJ2583; 1999(1)Crimes109(SC); JT1999(1)SC540; 1999(1)SCALE561; (1999)3SCC247; [1999]1SCR780; 2000(1)SLJ106(SC)', 'ratiodecidendi' => '', 'respondent' => 'State of Karnataka', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '645091' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/'include - APP/View/Case/meta.ctp, line 36 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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State of Karnataka Semantic Analysis', 'shops' => array( 'LAW' => array( (int) 0 => 'Section 13(1)(e', (int) 1 => 'Section 13(2', (int) 2 => 'Section 13(1)(e', (int) 3 => 'Section 13(2', (int) 4 => 'Section 13(1)(e', (int) 5 => 'Section 13(2', (int) 6 => 'Section 482', (int) 7 => 'Section 173', (int) 8 => 'Section 161 of the CrPC', (int) 9 => 'Section 300', (int) 10 => 'the Criminal Procedure Code', (int) 11 => 'the Crime Case No' ), 'NORP' => array( (int) 0 => 'J.1' ), 'ORG' => array( (int) 0 => 'Karnataka Administrative Service', (int) 1 => 'the Prevention of Corruption Act', (int) 2 => 'Bureau of Investigation', (int) 3 => 'the Prevention of Corruption Act', (int) 4 => 'FIR', (int) 5 => 'the High Court', (int) 6 => 'CrPC', (int) 7 => 'FIR', (int) 8 => 'Authority', (int) 9 => 'FIR', (int) 10 => 'the High Court', (int) 11 => 'FIR', (int) 12 => 'FIR', (int) 13 => 'Karnataka High Court', (int) 14 => 'Agency', (int) 15 => 'Magistrate', (int) 16 => 'FIR', (int) 17 => 'FIR', (int) 18 => 'FIR', (int) 19 => 'the Investigating Agency', (int) 20 => 'Court', (int) 21 => 'Court', (int) 22 => 'FIR', (int) 23 => 'Counsel', (int) 24 => 'the Prevention of Corruption Act', (int) 25 => 'Government', (int) 26 => 'FIR', (int) 27 => 'Court', (int) 28 => 'Court', (int) 29 => 'the High Court', (int) 30 => 'Court', (int) 31 => 'CrPC', (int) 32 => 'First Information Report', (int) 33 => 'Agency', (int) 34 => 'Magistrate', (int) 35 => 'the Prevention of Corruption Act', (int) 36 => 'FIR', (int) 37 => 'FIR', (int) 38 => 'First Information Report', (int) 39 => 'a Competent Court', (int) 40 => 'the High Court', (int) 41 => 'the Investigating Agency', (int) 42 => 'the First Information Report', (int) 43 => 'Court', (int) 44 => 'FIR', (int) 45 => 'the Investigating Authority', (int) 46 => 'Court' ), 'CARDINAL' => array( (int) 0 => '24.8.1989', (int) 1 => '25.7.95', (int) 2 => '1.8.78', (int) 3 => '25.7.95', (int) 4 => '58,77,000', (int) 5 => '52,17,000', (int) 6 => '21', (int) 7 => '95', (int) 8 => '22', (int) 9 => '89', (int) 10 => '24.8.89', (int) 11 => '1.8.78', (int) 12 => '24.8.89', (int) 13 => '24.8.89', (int) 14 => '22', (int) 15 => '8)', (int) 16 => '25.7.95', (int) 17 => 'two', (int) 18 => '24.8.89', (int) 19 => 'one', (int) 20 => 'three', (int) 21 => 'Four', (int) 22 => '22', (int) 23 => '1.8.78', (int) 24 => '24.8.89', (int) 25 => '1.8.78', (int) 26 => '24.8.89', (int) 27 => '22', (int) 28 => '60,000', (int) 29 => '1,70,000' ), 'PERSON' => array( (int) 0 => 'Karnataka Lokayukta', (int) 1 => 'Bangalore', (int) 2 => 'Karnataka Lokayukta', (int) 3 => 'Sibbal', (int) 4 => 'Sibbal', (int) 5 => 'Sibbal', (int) 6 => 'Sibbal', (int) 7 => 'Sibbal', (int) 8 => 'Mahale', (int) 9 => 'Bhajan Lal's', (int) 10 => 'Mahale', (int) 11 => 'Mahale', (int) 12 => 'Criminal', (int) 13 => 'Sibbal', (int) 14 => 'Sibbal' ), 'DATE' => array( (int) 0 => '11.4.1991', (int) 1 => '1988', (int) 2 => 'the same day', (int) 3 => '89', (int) 4 => 'Section 13(1)(e', (int) 5 => '89', (int) 6 => '89' ), 'GPE' => array( (int) 0 => 'Karnataka', (int) 1 => 'Single' ), 'WORK_OF_ART' => array( (int) 0 => 'Crime Case No', (int) 1 => 'Criminal Case No' ), 'PRODUCT' => array( (int) 0 => 'Judgment' ) ), 'desc' => array( 'Judgement' => array( 'id' => '645091', 'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 161, 173(8), 300 and 482; <a href="/act/51650/prevention-of-corruption-act-1988-complete-act">Prevention of Corruption Act, 1988</a> - Sections 13(1 and 2)', 'appealno' => 'Crl.A. No. 216 of 1999', 'appellant' => 'M. Krishna', 'authreffered' => '', 'casename' => 'M. Krishna Vs. State of Karnataka', 'casenote' => ' - [M. Hidayatullah, C.J.,; G.K. Mitter,; K.S. Hedge,; R.S. Bachawat and; S.M. Sik, JJ.] The sales tax authorities directed that the sum realised as sales tax by the petitioners from their customers and paid over to the State should be refunded to the petitioners on condition that the petitioners passed on the amounts to their customers. Since the petitioners did not fulfil the condition, the sales tax officer 'forfeited the sum under s. 21(4) of .the Bombay Sales Tax Act, 1953, by order dated March 17, 1958. On March 28, the petitioners filed a writ petition in the High Court and contended that s. 21(4) was ultra rites the powers of the State Legislature and was violative of Arts. 19(1)(f) and 265 of the Constitution and hence, they were not liable to repay the amount. The single Judge dismissed the petition on the ground that the petitioners defrauded their customers and so were not entitled to any relief even if there was a violation of fundamental rights. The appellate bench of the High Court dismissed the appeal on the ground that it would not interfere with the discretionary order of the single Judge. On December 24, 1958, the Collector attached the properties of the petitioners for recovering the amount as arrears of land revenue and the petitioners paid the amount in instalments between August 1959 and August 1960. On September 29, 1967 this Court in Kantilal Babual v. H.C. Panel, 21 S.T.C. 174 (S.C.) struck down s. 12A(4) of Bombay Sales Tax Act, 1946, corresponding to s. 2'1(4) of the 1953- Act, on the ground that it was violative of Art. 19(1)(f) inasmuch as the power conferred by the section was unguided, uncanalised and uncontrolled and so was not a reasonable restriction on the fundamental right guaranteed under the Article. On the assumption that s. 21(4) of the 1953-Act is also liable to be struck down on the same ground, on February 9, 1968, the petitioners flied a writ petition under Art. 32 claiming a refund of the amount. The petitioners contended that they did not know that the section was ultra vires on the particular ground on which this Court struck it down, that they paid the amounts under coercion or mistake, that the mistake was discovered on September 29, 1967 (the date of the judgment of this Court) and that they were entitled to the refund under s. 72 of the Indian Contract Act, 1872. On the questions: (1) Whether the petition is liable to be dismissed on the ground of Inches; and (2) Whether the petition is barred by res judicata in view of the decision of the High Court. HELD: (Per Hidayatullah, C.J., Bachawat and Mitter, JJ.): (1) The petition must be dismissed on the ground of Inches. Per Hidayatullah C.J.: Article 32 gives the right to move this Court by appropriate proceedings for enforcement of fundamental rights and the State cannot place any hindrance in the way of an aggrieved person. But once the matter has reached this Court, the extent or manner of interference is for this Court to decide. This Court has put itself in restraint in the matter of petitions under Art. 32. For example, this Court refrains from acting under the Article if the party had already moved the High Court under Art. 226 and if the High Court had exercised its parallel jurisdiction. In such a case, this Court would not allow fresh proceedings to be started under Art. 32 but would insist on the decision of the High Court being brought before it on appeal. Similarly, in inquiring into belated and stale claims, this Court should take note of evidence of neglect of the petitioner's own rights. for a long time or of the rights of innocent parties which might have emerged by reason of the delay. The party aggrieved must therefore move this Court at the earliest possible time and explain satisfactorily all semblance of delay. It is not possible for this Court to lay down any specific period as the ultimate limit of action and each case will have to be considered on its own facts. A petition under Art. 32 is neither a suit nor an application to which the Limitation Act applies. Further, putting curbs in the way of enforcement of fundamental rights through such legislative action might be questioned under Art. 13(2). for, if a short period of limitation is prescribed the fundamental right might be frustrated. Therefore, this Court has to exercise its discretion from case to case, and where there is appearance of an avoidable delay and this delay affects the merits of the claim, this Court will consider it, and in a proper case, hold the party disentitled to invoke its extraordinary jurisdiction. [830C, DE. G--H; 831 A--B. C--E; 832 A--E] In the present case, the petitioners moved unsuccessfully the High Court for relief on the. ground that the recovery from them was unconstitutional, but did not come up in appeal to this Court. There is thus no question of any mistake of law. Having set the machinery of law in motion they cannot abandon it to resume it after a .number of years because another person got the statute declared unconstitutional. They should have known the exact ground of unconstitutionality since every one is presumed to know the law; and pursued the ground in this Court. Not having done so, and having abandoned his own litigation years ago. this Court will not apply the analogy of the Article in the Limitation Act in cases of mistake of law and give him relief. [832 F--H; 833 A--B, C--E] Per Bachawat, J.: The normal remedy for recovery of money paid to the State under coercion or mistake of law is by suit. The right to move this Court for enforcement of fundamental rights is guaranteed by Art. 32, and no period of limitation is prescribed for such a petition. The writ issues as a matter of course if a breach of a 'fundamental right established, but this does not mean that in giving relief under the Article this Court may ignore all laws of procedure. The extraordinary remedies under Arts. 32 and 226 of the Constitution are not intended to enable a claimant to recover monies the recovery of which by suit is barred by limitation. In the absence any roles of procedure under Art. 145(1)(c) this Court may adopt any reasonable rule. For example. this Court will not allow a petitioner to move this Court under Art. 32 on a petition containing misleading and inaccurate statements. Similarly, the general principles of res judicata are applied where applicable on grounds of public policy. Therefore, where the remedy in a writ application under Art. 32 or Art. 226 corresponds to a 'remedy in an ordinary suit and the latter remedy is subject to the bar of a statute of limitation, the Court imposes on analogy the same limitation on the summary remedy in the writ jurisdiction even though there is no express statutory bar of limitation, on grounds of public policy and on the principle that the laws aid the vigilant and not those who slumber. [842 A--F; 843 A--F] In the present case, the petitioners were not labouring under any mistake of law when they made the payments, because, in their writ petition in the High Court, they contended that the order was invalid and that s. 21(4) of the Bombay Sales Tax Act, 1953, was ultra vires and unconstitutional although they did not know the precise ground upon which this Court subsequently struck down s. 12A(4) of the 1946-ACt. Therefore, when they made the payments in 1959 and 1960 they were made under coercion and not under a mistake of law in thinking that the money was due. Hence the petitioners could not claim any relief on the ground of mistake. They could rely on the ground of coercion but a suit for the recovery of money on the ground of coercion instituted in February 1968, would have been barred by limitation. A suit for recovery of money on the ground of coercion instituted after January 1, 1964 would be governed by Art. 24 of the Limitation Act, 1963, and the period of limitation would be 3 years from the dates in 1959 and 1960 when the amounts were paid. The petitioners could not obtain an extension of the period under s. 30(a) of the Limitation Act, 1963, as Art. 62 of the Limitation Act, 1908, which governs a suit for recovery of tax or other levy illegally collected, prescribed the same period of limitation. [840 F--H; 841 A---C] Shiva Prasad Singh v. Srish Chandra Nandi, (1949) L.R. 76 I.A. 244, 254, Sales Tax Officer v. Mukundlal Saraf [1959] S.C.R. 1350, 1361, 1362, A. Venkata Subba Rao v. State of Andhra Pradesh[1965] 2 S.C.R. 577, 612--620, State of Madhya Pradesh v. Bhailal Bhai & Ors. [1964] 6 S.C.R. 261 274, Daryao v. State of U.P. [1962] 1 S.C.R. 574, Sobhraj Odharmal v. State of Ralasthan, [1963] Supp. 1 S.C.R. 99, 111 and Her Highness Ruckmaboye v. Lulloobhoy Mottickchund, (185152) 5 M.I.A. 234, 251, referred to.- Per Mitter, J.: The Limitation Act does not in terms apply to proceedings against the State under Art. 32 in respect of violation of fundamental rights. A person complaining of such infraction has. one of three courses open to him. He can file a suit, invoke Art. 226 or Art. 32Suits are governed by the Limitation Act. In the matter of the issue of a writ under Art. 226 also, courts have refused to give relief in cases of long or unreasonable delay, although the Limitation Act does not apply, and the maximum period fixed by the Legislature for filing a suit is ordinarily taken to be a reasonable standard by which delay in seeking the remedy under Art. 226 can be measured. There is no reason for applying a different test when a party comes to this Court under Art. 32. There is public policy behind all statutes of limitation and a claim based on the infraction of fundamental rights ought not to be entertained if made beyond the period fixed by the Limitation Act for the enforcement of the right by way of suit, that is, although the Limitation Act does not apply, the period fixed by it should be taken to be a true measure of the time within which a person can be allowed to raise a plea successfully under Art. 32. [853 C--H; 854 A--B] The petitioners in this case had not made a mistake in thinking that the money paid was due when in fact it was not due. They not only opposed the claim of the sales tax authorities but filed a writ petition contending that there was a violation of Art. 19(1)(f). They did not accept the decision of the single Judge but filed an appeal raising the same contention. They complained about the violation of their fundamental rights, the illegality of the order of forfeiture and the unreason-able restriction on their fundamental rights under Art. 19(1)(f). They protested against the order of forfeiture not only out of court but in court and only paid the amounts after the issue of legal process. They were never influenced by a mistake of law and never 'failed to 'appreciate the correct position in law. But the payments were made under coercion. The period of limitation for a suit against Government to recover money paid under protest is governed either by Art. 16 or Art. 62 of the Limitation Act, 1908 that is one year or three years. But taking the most favourable view that the period of six years fixed by Art. 120 of Limitation Act, 1908, would apply, that period would have expired in 1966. The position is not different even if the Limitation Act, 1963 is applied. A claim for money paid under coercion would be covered by Art. 113 of the Limitation Act, 1963, giving a period of 3 years from January 1, 1964 the date of commencement of the 1963-Act. Under s. 30(a) of the Limitation Act, 1963, the period of limitation for a suit which was formerly covered by Art. 120 of the Act of 1908; would be covered by Art. 113 of the 1963-Act. Therefore, the suit in the present case would have to be filed by January 1, 1967. As the petitioners came to this Court in February 1968 long after the date when they could have properly filed a suit, the application under Art. 32 must be rejected. [851 H; 852 A---D, G-H; 853 A--B; 854- B--H;, 855 A-B] Kantilal Babulal & Bros. v.H.C. Patel 2.1 S.T,C. 174, Sri Sri Shiba Prasad Singh, deceased, now represented by Kali Prasad Singha v. Maharaja Srish Chandra Nandi 76 I.A. 244, Sales Tax Officer v. Kanhaiya Lal Mukundlal Saraf, [1959] S.C.R. 1350 at 1363, Sales Tax Officer, Pilibhit v. Budh Prakash jai Prakash, [1955] 1 S.C.R. 243, State o/ Madhya Pradesh v. Bhailal Bhai [1964] 6 S.C.R. 261, State of Kerala v. Aluminum Industries Ltd. 16 S.T.C. 689, and A. V. Subbarao v. The State of Andhra Pradesh [1965] 2 S.C.R. 577, referred to. Per Sikri and Hegde, JJ. (dissenting): The petition has to be allowed and the petitioners must be granted the relief prayed for. Per Sikri, J.: Article 32(2) of the Constitution confers a judicial power on this Court, and like all judicial powers, unless there is an express provision to the contrary, it must be exercised in accordance with fundamental principles of administration of justice, and one such fundamental principle is that stale claims should not be given effect to. [833 F--G] The Limitation Act does not directly apply to a petition under Art. 32 and to invoke the analogy of the Limitation Act is not appropriate when dealing with petitions under Art. 32. If a claim is barred under the Limitation Act, prima facie it is a stale claim but even if it is not so barred, it may not' be entertained by this Court if on the facts of the case there is unreasonable delay. To issue a writ, direction or order in the nature of mandamus certiorari or prohibition after a delay of 12 years or 6 years would, except when there are exceptional circumstances, be strange. It is difficult to lay down a precise period, but a period of one year may be taken as the period beyond which the claim would be a stale claim unless the delay is explained. The time spent in making representations to higher authorities may be taken as a good explanation for any delay. Such a practice would not destroy the guarantee under Art. 32, because, the article nowhere lays down that a petition, however late, should be entertained. [833 G; 835 C-H] In the present case, the petitioners were mistaken in thinking that the money was liable to be paid under a valid law and hence under s. 72 of the Contract Act, the petitioners would be entitled to the relief claimed. The grounds urged before the High Court show that it never struck the petitioners that the provision could be challenged on the ground ulti-mately accepted by this Court. If the petitioners had not moved the High Court but had paid on demand they would have been entitled to maintain the petition in this Court. The position could not be worse became they exercised their right under Art. 226. When a petitioner approaches a High Court and fails, it could not be said that payments made by him thereafter were not under a mistake of law, even if the point on which this Court ultimately strikes down the provision under which the payments were made was never raised in the High Court. The petitioners discovered, like all assessees their mistake when this Court struck down s. 12A(4) of the 1946-Act and they came to this Court within 6 months of that date and hence there was no delay. [837 G--H; 839 B---E] Daryao v. State of U.P. [1962] 1 S.C.R. 574, Amalgamated Coalfields Ltd. v. Janapada Sabha, Chindwara, A.I.R. 1964 S.C. 1013, 1018, Sales Tax Officer v. Kanhaiyalal, [1959] S.C.R. 1350 andKantilal Babulal v. H.C. Patel, Sales Tax Officer, 21 S.T.C. 174, referred to. Per Hegde, J.: In view of the decision of this Court in Kantilal Babulal v.H.C. Patel, 21 S.T.C. 174 which struck down s. 12A(4) or the 1946-Act, the impugned collection under s. 21(4) of the 1953-Act was without the authority of law and consequently the exaction infringed the fundamental right of the petitioners under Art. 19(1)(f). Hence the petitioners have a fundamental right to approach this' Court under Art. 32 for relief and this Court has a duty to afford them the appropriate relief. Since the right given to the petitioners under Art. 32 is itself a fundamental right and does not depend on the discretionary powers of this Court, as in 1be case of Art. 226, it is inappropriate to equate the duty imposed on this Court to the powers of Chancery Court in England or the equitable jurisdiction of Courts in the United States. The fact that the petitioners have no equity in their favour is an irrelevant circumstance in deciding the nature of the right available to an aggrieved party under Art. 32. This Court is charged by the Constitution with the special responsibility of protecting and enforcing the fundamental rights, and hence leaches on the part of an aggrieved party cannot deprive him of his right to get relief under Art. 32. In fact, law reports do not show a single instance of this Court refusing to grant relief on the ground of delay. If this Court could refuse relief on the ground of delay, the power of the Court under Art. 32 would be a discretionary power and the right would cease to be a fundamental right. The provisions contained in the Limitation Act do not apply to proceedings under Arts. 226 and 32 and if these provisions of the Limitation Act are brought in indirectly to control the remedies conferred by the ConstitUtion, it would be a case of Parliament indirectly abridging the fundamental rights which this Court, in Golaknath's case, [1967] 2 S.C.R. 762, held that Parliament cannot do. The 'fear. that forgotten claims and discarded rights against Government may be sought to be enforced after the lapse of a number of years if fundamental rights are held to be enforceable without any time limit, is an exaggerated one, for, after all, a petitioner can only enforce an existing right. [856 D. F--H; 857 A, B, D, G-H; 858 A, D--E, F--H; 859 H] In this case the petitioners have an existing right even if their remedy under the ordinary law is barred. This Court struck down s. 12A(4) of the 1946-Act on a ground not put forward by the petitioners in the High Court but on a wholly different ground. A mere impression of a party that a provision of law may be ultra vires cannot be equated to knowledge that the provision is invalid. and the fact, that, after a futile attempt to get the provision in question declared invalid the petitioners gave up their fight and submitted to the law which was apparently valid is no proof of the fact that they knew that the provision in question was invalid. There is no reason for rejecting the plea of the petitioners that they became aware of the invalidity of the provision only after the decision of this Court in Kantilal's case, and since the petition was filed very soon thereafter, the petitioners were entitled to relief. [860 C--G] State of M.P.v. Bhailal Bhai, [1964] 6 S.C.R. 261, referred to. (2) (By Full Court): The petition is not barred by res judicata. Per Hidayatullah, C.J. Where the order of the High Court under Art. 22% is not a speaking order or the matter has been disposed of on some ground other than on merits, at the threshold, this Courtmay entertain the application under Art. 32. [831 B] Daryao v. State of U.P. [1962] 1 S.C.R. 574, explained. Per Sikri, Bachawat and Mitter, JJ.: When a petition under Art. 226 is dismissed not on the merits but because of the laches on the party applying for ,the writ or because an alternative remedy was available to him, such dismissal is not a bar to a subsequent petition under Art. 32, except in cases when the facts found by the High Court might them selves be relevant under Art. 32. [833 E--F; 839 F--G; 855 C--D,F-G] Daryao's case, [1962] 1 S.C.R. 574 and Joseph v. State of Kerala, A.I.R. 1965 S.C. 1514, referred to. Per Hegde. J.: It is only when the right claimed by the petitioner in his petition under Art. 32 had been claimed in the High Court under Art. 226 and negatived by the High Court and that decision had become final as it was not appealed against, that the petitioner would not be able to agitate the right over again in this Court under Art. 32. [856 B--C] Daryao's case, [1962] 1 S.C.R. 574, explained. - 22 of 89 and a 'B' form having been filed by the investigating Agency which was approved by the Magistrate, inclusion of the said period in the fresh FIR is itself bad and, therefore, the FIR is liable to be quashed. 5. Having considered the rival submissions made by counsel for the parties and having examined the provisions of the Criminal Procedure Code as well as the Prevention of Corruption Act we find ourselves unable to agree with the submission of Mr. Sibbal, the learned senior counsel appearing for the appellant that the present FIR itself is bad in law. Though the earlier period also could be a subject matter of investigation for variety of reasons like some assets not being taken into account or some materials brought during investigation not being taken into account yet at the same time the results of the earlier investigation cannot be totally obliterated and ignored by the Investigating Agency. For the aforesaid reasons, while we are not in a position to quash the FIR, but we would make it clear that the Investigating Authority will certainly look into the earlier proceedings and the result of investigation thereunder and the submission of 'B' Form which was duly accepted by the competent Court while investigating into the present proceedings as well as the observations made by us in this Judgment.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => ' Kapil Sibal,; Siddharth Dave,; Lakshmi Narayan,; ', 'counseldef' => '', 'court' => 'Supreme Court of India', 'court_type' => 'SC', 'decidedon' => '1999-02-19', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' G.B. Pattanaik and; M.B. Shah, JJ.', 'judgement' => '<p style="text-align: justify;">Pattanaik, J.</p><p style="text-align: justify;">1. Leave granted.</p><p style="text-align: justify;">2. The appellant is a Class-I officer of Karnataka Administrative Service. On 24.8.1989 a report was drawn up against him under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act alleging therein that he has assets disproportionate to his known source of income. After investigation the Inspector General of Police, Bureau of Investigation, Karnataka Lokayukta authorised the Investigating Officer to submit a 'B' report before the Special Judge, Bangalore where the matter was pending and after issuance of a public notice in the prescribed form inviting objections to the aforesaid 'B' report from the interested persons by order dated 11.4.1991, the said 'B' report was accepted by the learned Special Judge. Properties of the appellant which had been earlier attached were directed to be released. On 25.7.95 the Supdt. of Police Karnataka Lokayukta authorised the Deputy Supdt. of Police to investigate into the assets of the appellant and find out whether an offence has been committed under Section 13(1)(e) read with Section 13(2) of the <a href="/act/51650/prevention-of-corruption-act-1988-complete-act">Prevention of Corruption Act, 1988</a>. On the same day an FIR was filed alleging commission of offence against the appellant under Section 13(1)(e) read with Section 13(2) of the Act and the gravamen of the allegation is that between the period from 1.8.78 to 25.7.95 the appellant has acquired assets amounting to Rs. 58,77,000 as against his known source of income of Rs. 9,90,000 and thereby the disproportion is to the tune of Rs. 52,17,000. The appellant filed a Criminal Petition before the High Court of Karnataka invoking jurisdiction under Section 482 of the CrPC praying for quashing of the FIR in LAC Crime No. 21 of 95 inter alia on the ground that Crime No. 22 of 89 having been registered against the appellant for a check period 1.8.78 till 24.8.89 and after due investigation a 'B' report having been filed and the same being accepted it was not proper for the investigating Authority to file another FIR which includes the earlier check period of 1.8.78 till 24.8.89. The learned Judge of the High Court, however, was not persuaded to agree with the aforesaid submission of the learned Counsel appearing for the appellant, and on examining the FIR and the allegations made therein came to the conclusion that it was a set of fresh allegations in respect of fresh alleged assets during a fresh check period and as such, question of quashing the FIR does not arise. It is against the aforesaid order of the learned Single Judge of Karnataka High Court the present appeal has been preferred.</p><p style="text-align: justify;">3. Mr. Sibbal, the learned senior counsel appearing for the appellant contended that the assets of the appellant for the period 1.8.78 till 24.8.89 having been the subject matter of an investigation pursuant to Crime Case No. 22 of 89 and a 'B' form having been filed by the investigating Agency which was approved by the Magistrate, inclusion of the said period in the fresh FIR is itself bad and, therefore, the FIR is liable to be quashed. Mr. Sibbal, also contended that in view of Sub-section (8) of Section 173 of the CrPC the Investigating Agency has the right to file fresh report on the basis of fresh materials but that not having been done the impugned FIR for the period 1.8.78 till 25.7.95 cannot be sustained. According to Mr. Sibbal the very fact that the Investigating Agency is not aware of the earlier criminal proceeding and the investigation thereupon which ultimately ended in a 'B' form and accepted by the Court indicates the total non-application of mind and pursuing the appellant maliciously and, therefore, the Court should interfere with the proceeding. According to Mr. Sibbal after the FIR is given whatever statements are received are in course of investigation under Section 161 of the CrPC and that being the position there cannot be two FIRs for the period 1.8.78 till 24.8.89. The learned Counsel also urged that in view of the provisions contained in Section 13(1)(e) of the Prevention of Corruption Act the explanation offered by the accused in respect of the prior proceedings having been accepted the said assets could not have been again taken into account for a subsequent criminal case. Mr. Sibbal also further submitted that in any view of the matter the assets of the Government servant are to be valued on the date of acquisition and not on the date of verifying of the fact and the very asset which was valued in course of earlier proceeding at Rs. one lakh should not have been valued at Rs. three lakhs or Rs. Four lakhs, as in the present case and such valuation itself is an unfair investigation causing undue harassment to the accused appellant.</p><p style="text-align: justify;">4. Mr. Mahale, the learned Counsel appearing for the respondents on the other hand submitted, that the parameters for quashing an FIR having been laid down by this Court in Bhajan Lal's case and certain illustrations given by this Court, the present case does not fall within the said parameters and, therefore, the High Court was fully justified in not accepting the prayer of the accused appellant. Mr. Mahale also submitted that acceptance of a 'B' form by the Court cannot be held to be an order of acquittal after the accused being tried as provided under Section 300 of the CrPC, and therefore, there is no legal impediment to have a fresh First Information Report for the entire service period of a government servant and investigate into the assets of the employee for the entire period. Mr. Mahale, however, fairly stated that the assets of the employee will have to be valued on the date of acquisition and not on the date the Criminal case is being instituted. He also submitted that the investigating Agency is duty bound to take into consideration the fact of 'B' form filed in Criminal Case No. 22 of 89 and the order of the Magistrate passed thereon before ultimately filing the chargesheet or the 'B' form as the case may be, in the present case. But according to him the very investigation cannot be quashed at this stage.</p><p style="text-align: justify;">5. Having considered the rival submissions made by counsel for the parties and having examined the provisions of the Criminal Procedure Code as well as the Prevention of Corruption Act we find ourselves unable to agree with the submission of Mr. Sibbal, the learned senior counsel appearing for the appellant that the present FIR itself is bad in law. We do not find any provision in the Code which debars the filing of an FIR and investigating into the alleged offences merely because for an earlier period namely 1.8.78 to 24.8.89 there was First Information Report which was duly investigated into and culminated in a 'B' form which was accepted by a Competent Court. At the same time we are also of the opinion that the conclusion of the High Court that the present proceeding relates to fresh alleged assets and fresh check period is not wholly correct, in as much as admittedly the check period from 1.8.78 till 24.8.89 was the subject matter in the Crime Case No. 22 of 89 and the same ended in submission of 'B' form. Though the earlier period also could be a subject matter of investigation for variety of reasons like some assets not being taken into account or some materials brought during investigation not being taken into account yet at the same time the results of the earlier investigation cannot be totally obliterated and ignored by the Investigating Agency. But that cannot be a ground for quashing of the First Information Report itself and for injuncting the investigating authority to investigate into the offence alleged. We also find sufficient force in the arguments of Mr. Sibbal that the assets which were valued in the earlier investigation proceeding at a particular value cannot be valued higher in the present proceeding unless any positive ground is there for such valuation. For example, a car which was valued in the earlier proceeding at Rs. 60,000 could not have been valued at Rs. 1,70,000 in the present proceedings but at this stage the Court is not required to go into these matters as investigation is only at threshold. For the aforesaid reasons, while we are not in a position to quash the FIR, but we would make it clear that the Investigating Authority will certainly look into the earlier proceedings and the result of investigation thereunder and the submission of 'B' Form which was duly accepted by the competent Court while investigating into the present proceedings as well as the observations made by us in this Judgment. Subject to the aforesaid observations this appeal is disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR1999SC1765; 1999(1)ALD(Cri)468; 1999(2)ALT(Cri)280; 1999CriLJ2583; 1999(1)Crimes109(SC); JT1999(1)SC540; 1999(1)SCALE561; (1999)3SCC247; [1999]1SCR780; 2000(1)SLJ106(SC)', 'ratiodecidendi' => '', 'respondent' => 'State of Karnataka', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '645091' ) ) $title_for_layout = 'M. Krishna Vs. State of Karnataka Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Section 13(1)(e', (int) 1 => 'Section 13(2', (int) 2 => 'Section 13(1)(e', (int) 3 => 'Section 13(2', (int) 4 => 'Section 13(1)(e', (int) 5 => 'Section 13(2', (int) 6 => 'Section 482', (int) 7 => 'Section 173', (int) 8 => 'Section 161 of the CrPC', (int) 9 => 'Section 300', (int) 10 => 'the Criminal Procedure Code', (int) 11 => 'the Crime Case No' ), 'NORP' => array( (int) 0 => 'J.1' ), 'ORG' => array( (int) 0 => 'Karnataka Administrative Service', (int) 1 => 'the Prevention of Corruption Act', (int) 2 => 'Bureau of Investigation', (int) 3 => 'the Prevention of Corruption Act', (int) 4 => 'FIR', (int) 5 => 'the High Court', (int) 6 => 'CrPC', (int) 7 => 'FIR', (int) 8 => 'Authority', (int) 9 => 'FIR', (int) 10 => 'the High Court', (int) 11 => 'FIR', (int) 12 => 'FIR', (int) 13 => 'Karnataka High Court', (int) 14 => 'Agency', (int) 15 => 'Magistrate', (int) 16 => 'FIR', (int) 17 => 'FIR', (int) 18 => 'FIR', (int) 19 => 'the Investigating Agency', (int) 20 => 'Court', (int) 21 => 'Court', (int) 22 => 'FIR', (int) 23 => 'Counsel', (int) 24 => 'the Prevention of Corruption Act', (int) 25 => 'Government', (int) 26 => 'FIR', (int) 27 => 'Court', (int) 28 => 'Court', (int) 29 => 'the High Court', (int) 30 => 'Court', (int) 31 => 'CrPC', (int) 32 => 'First Information Report', (int) 33 => 'Agency', (int) 34 => 'Magistrate', (int) 35 => 'the Prevention of Corruption Act', (int) 36 => 'FIR', (int) 37 => 'FIR', (int) 38 => 'First Information Report', (int) 39 => 'a Competent Court', (int) 40 => 'the High Court', (int) 41 => 'the Investigating Agency', (int) 42 => 'the First Information Report', (int) 43 => 'Court', (int) 44 => 'FIR', (int) 45 => 'the Investigating Authority', (int) 46 => 'Court' ), 'CARDINAL' => array( (int) 0 => '24.8.1989', (int) 1 => '25.7.95', (int) 2 => '1.8.78', (int) 3 => '25.7.95', (int) 4 => '58,77,000', (int) 5 => '52,17,000', (int) 6 => '21', (int) 7 => '95', (int) 8 => '22', (int) 9 => '89', (int) 10 => '24.8.89', (int) 11 => '1.8.78', (int) 12 => '24.8.89', (int) 13 => '24.8.89', (int) 14 => '22', (int) 15 => '8)', (int) 16 => '25.7.95', (int) 17 => 'two', (int) 18 => '24.8.89', (int) 19 => 'one', (int) 20 => 'three', (int) 21 => 'Four', (int) 22 => '22', (int) 23 => '1.8.78', (int) 24 => '24.8.89', (int) 25 => '1.8.78', (int) 26 => '24.8.89', (int) 27 => '22', (int) 28 => '60,000', (int) 29 => '1,70,000' ), 'PERSON' => array( (int) 0 => 'Karnataka Lokayukta', (int) 1 => 'Bangalore', (int) 2 => 'Karnataka Lokayukta', (int) 3 => 'Sibbal', (int) 4 => 'Sibbal', (int) 5 => 'Sibbal', (int) 6 => 'Sibbal', (int) 7 => 'Sibbal', (int) 8 => 'Mahale', (int) 9 => 'Bhajan Lal's', (int) 10 => 'Mahale', (int) 11 => 'Mahale', (int) 12 => 'Criminal', (int) 13 => 'Sibbal', (int) 14 => 'Sibbal' ), 'DATE' => array( (int) 0 => '11.4.1991', (int) 1 => '1988', (int) 2 => 'the same day', (int) 3 => '89', (int) 4 => 'Section 13(1)(e', (int) 5 => '89', (int) 6 => '89' ), 'GPE' => array( (int) 0 => 'Karnataka', (int) 1 => 'Single' ), 'WORK_OF_ART' => array( (int) 0 => 'Crime Case No', (int) 1 => 'Criminal Case No' ), 'PRODUCT' => array( (int) 0 => 'Judgment' ) ) $desc = array( 'Judgement' => array( 'id' => '645091', 'acts' => '<a href="/act/50902/code-of-criminal-procedure-1973-complete-act">Code of Criminal Procedure (CrPC) , 1973</a> - Sections 161, 173(8), 300 and 482; <a href="/act/51650/prevention-of-corruption-act-1988-complete-act">Prevention of Corruption Act, 1988</a> - Sections 13(1 and 2)', 'appealno' => 'Crl.A. No. 216 of 1999', 'appellant' => 'M. Krishna', 'authreffered' => '', 'casename' => 'M. Krishna Vs. State of Karnataka', 'casenote' => ' - [M. Hidayatullah, C.J.,; G.K. Mitter,; K.S. Hedge,; R.S. Bachawat and; S.M. Sik, JJ.] The sales tax authorities directed that the sum realised as sales tax by the petitioners from their customers and paid over to the State should be refunded to the petitioners on condition that the petitioners passed on the amounts to their customers. Since the petitioners did not fulfil the condition, the sales tax officer 'forfeited the sum under s. 21(4) of .the Bombay Sales Tax Act, 1953, by order dated March 17, 1958. On March 28, the petitioners filed a writ petition in the High Court and contended that s. 21(4) was ultra rites the powers of the State Legislature and was violative of Arts. 19(1)(f) and 265 of the Constitution and hence, they were not liable to repay the amount. The single Judge dismissed the petition on the ground that the petitioners defrauded their customers and so were not entitled to any relief even if there was a violation of fundamental rights. The appellate bench of the High Court dismissed the appeal on the ground that it would not interfere with the discretionary order of the single Judge. On December 24, 1958, the Collector attached the properties of the petitioners for recovering the amount as arrears of land revenue and the petitioners paid the amount in instalments between August 1959 and August 1960. On September 29, 1967 this Court in Kantilal Babual v. H.C. Panel, 21 S.T.C. 174 (S.C.) struck down s. 12A(4) of Bombay Sales Tax Act, 1946, corresponding to s. 2'1(4) of the 1953- Act, on the ground that it was violative of Art. 19(1)(f) inasmuch as the power conferred by the section was unguided, uncanalised and uncontrolled and so was not a reasonable restriction on the fundamental right guaranteed under the Article. On the assumption that s. 21(4) of the 1953-Act is also liable to be struck down on the same ground, on February 9, 1968, the petitioners flied a writ petition under Art. 32 claiming a refund of the amount. The petitioners contended that they did not know that the section was ultra vires on the particular ground on which this Court struck it down, that they paid the amounts under coercion or mistake, that the mistake was discovered on September 29, 1967 (the date of the judgment of this Court) and that they were entitled to the refund under s. 72 of the Indian Contract Act, 1872. On the questions: (1) Whether the petition is liable to be dismissed on the ground of Inches; and (2) Whether the petition is barred by res judicata in view of the decision of the High Court. HELD: (Per Hidayatullah, C.J., Bachawat and Mitter, JJ.): (1) The petition must be dismissed on the ground of Inches. Per Hidayatullah C.J.: Article 32 gives the right to move this Court by appropriate proceedings for enforcement of fundamental rights and the State cannot place any hindrance in the way of an aggrieved person. But once the matter has reached this Court, the extent or manner of interference is for this Court to decide. This Court has put itself in restraint in the matter of petitions under Art. 32. For example, this Court refrains from acting under the Article if the party had already moved the High Court under Art. 226 and if the High Court had exercised its parallel jurisdiction. In such a case, this Court would not allow fresh proceedings to be started under Art. 32 but would insist on the decision of the High Court being brought before it on appeal. Similarly, in inquiring into belated and stale claims, this Court should take note of evidence of neglect of the petitioner's own rights. for a long time or of the rights of innocent parties which might have emerged by reason of the delay. The party aggrieved must therefore move this Court at the earliest possible time and explain satisfactorily all semblance of delay. It is not possible for this Court to lay down any specific period as the ultimate limit of action and each case will have to be considered on its own facts. A petition under Art. 32 is neither a suit nor an application to which the Limitation Act applies. Further, putting curbs in the way of enforcement of fundamental rights through such legislative action might be questioned under Art. 13(2). for, if a short period of limitation is prescribed the fundamental right might be frustrated. Therefore, this Court has to exercise its discretion from case to case, and where there is appearance of an avoidable delay and this delay affects the merits of the claim, this Court will consider it, and in a proper case, hold the party disentitled to invoke its extraordinary jurisdiction. [830C, DE. G--H; 831 A--B. C--E; 832 A--E] In the present case, the petitioners moved unsuccessfully the High Court for relief on the. ground that the recovery from them was unconstitutional, but did not come up in appeal to this Court. There is thus no question of any mistake of law. Having set the machinery of law in motion they cannot abandon it to resume it after a .number of years because another person got the statute declared unconstitutional. They should have known the exact ground of unconstitutionality since every one is presumed to know the law; and pursued the ground in this Court. Not having done so, and having abandoned his own litigation years ago. this Court will not apply the analogy of the Article in the Limitation Act in cases of mistake of law and give him relief. [832 F--H; 833 A--B, C--E] Per Bachawat, J.: The normal remedy for recovery of money paid to the State under coercion or mistake of law is by suit. The right to move this Court for enforcement of fundamental rights is guaranteed by Art. 32, and no period of limitation is prescribed for such a petition. The writ issues as a matter of course if a breach of a 'fundamental right established, but this does not mean that in giving relief under the Article this Court may ignore all laws of procedure. The extraordinary remedies under Arts. 32 and 226 of the Constitution are not intended to enable a claimant to recover monies the recovery of which by suit is barred by limitation. In the absence any roles of procedure under Art. 145(1)(c) this Court may adopt any reasonable rule. For example. this Court will not allow a petitioner to move this Court under Art. 32 on a petition containing misleading and inaccurate statements. Similarly, the general principles of res judicata are applied where applicable on grounds of public policy. Therefore, where the remedy in a writ application under Art. 32 or Art. 226 corresponds to a 'remedy in an ordinary suit and the latter remedy is subject to the bar of a statute of limitation, the Court imposes on analogy the same limitation on the summary remedy in the writ jurisdiction even though there is no express statutory bar of limitation, on grounds of public policy and on the principle that the laws aid the vigilant and not those who slumber. [842 A--F; 843 A--F] In the present case, the petitioners were not labouring under any mistake of law when they made the payments, because, in their writ petition in the High Court, they contended that the order was invalid and that s. 21(4) of the Bombay Sales Tax Act, 1953, was ultra vires and unconstitutional although they did not know the precise ground upon which this Court subsequently struck down s. 12A(4) of the 1946-ACt. Therefore, when they made the payments in 1959 and 1960 they were made under coercion and not under a mistake of law in thinking that the money was due. Hence the petitioners could not claim any relief on the ground of mistake. They could rely on the ground of coercion but a suit for the recovery of money on the ground of coercion instituted in February 1968, would have been barred by limitation. A suit for recovery of money on the ground of coercion instituted after January 1, 1964 would be governed by Art. 24 of the Limitation Act, 1963, and the period of limitation would be 3 years from the dates in 1959 and 1960 when the amounts were paid. The petitioners could not obtain an extension of the period under s. 30(a) of the Limitation Act, 1963, as Art. 62 of the Limitation Act, 1908, which governs a suit for recovery of tax or other levy illegally collected, prescribed the same period of limitation. [840 F--H; 841 A---C] Shiva Prasad Singh v. Srish Chandra Nandi, (1949) L.R. 76 I.A. 244, 254, Sales Tax Officer v. Mukundlal Saraf [1959] S.C.R. 1350, 1361, 1362, A. Venkata Subba Rao v. State of Andhra Pradesh[1965] 2 S.C.R. 577, 612--620, State of Madhya Pradesh v. Bhailal Bhai & Ors. [1964] 6 S.C.R. 261 274, Daryao v. State of U.P. [1962] 1 S.C.R. 574, Sobhraj Odharmal v. State of Ralasthan, [1963] Supp. 1 S.C.R. 99, 111 and Her Highness Ruckmaboye v. Lulloobhoy Mottickchund, (185152) 5 M.I.A. 234, 251, referred to.- Per Mitter, J.: The Limitation Act does not in terms apply to proceedings against the State under Art. 32 in respect of violation of fundamental rights. A person complaining of such infraction has. one of three courses open to him. He can file a suit, invoke Art. 226 or Art. 32Suits are governed by the Limitation Act. In the matter of the issue of a writ under Art. 226 also, courts have refused to give relief in cases of long or unreasonable delay, although the Limitation Act does not apply, and the maximum period fixed by the Legislature for filing a suit is ordinarily taken to be a reasonable standard by which delay in seeking the remedy under Art. 226 can be measured. There is no reason for applying a different test when a party comes to this Court under Art. 32. There is public policy behind all statutes of limitation and a claim based on the infraction of fundamental rights ought not to be entertained if made beyond the period fixed by the Limitation Act for the enforcement of the right by way of suit, that is, although the Limitation Act does not apply, the period fixed by it should be taken to be a true measure of the time within which a person can be allowed to raise a plea successfully under Art. 32. [853 C--H; 854 A--B] The petitioners in this case had not made a mistake in thinking that the money paid was due when in fact it was not due. They not only opposed the claim of the sales tax authorities but filed a writ petition contending that there was a violation of Art. 19(1)(f). They did not accept the decision of the single Judge but filed an appeal raising the same contention. They complained about the violation of their fundamental rights, the illegality of the order of forfeiture and the unreason-able restriction on their fundamental rights under Art. 19(1)(f). They protested against the order of forfeiture not only out of court but in court and only paid the amounts after the issue of legal process. They were never influenced by a mistake of law and never 'failed to 'appreciate the correct position in law. But the payments were made under coercion. The period of limitation for a suit against Government to recover money paid under protest is governed either by Art. 16 or Art. 62 of the Limitation Act, 1908 that is one year or three years. But taking the most favourable view that the period of six years fixed by Art. 120 of Limitation Act, 1908, would apply, that period would have expired in 1966. The position is not different even if the Limitation Act, 1963 is applied. A claim for money paid under coercion would be covered by Art. 113 of the Limitation Act, 1963, giving a period of 3 years from January 1, 1964 the date of commencement of the 1963-Act. Under s. 30(a) of the Limitation Act, 1963, the period of limitation for a suit which was formerly covered by Art. 120 of the Act of 1908; would be covered by Art. 113 of the 1963-Act. Therefore, the suit in the present case would have to be filed by January 1, 1967. As the petitioners came to this Court in February 1968 long after the date when they could have properly filed a suit, the application under Art. 32 must be rejected. [851 H; 852 A---D, G-H; 853 A--B; 854- B--H;, 855 A-B] Kantilal Babulal & Bros. v.H.C. Patel 2.1 S.T,C. 174, Sri Sri Shiba Prasad Singh, deceased, now represented by Kali Prasad Singha v. Maharaja Srish Chandra Nandi 76 I.A. 244, Sales Tax Officer v. Kanhaiya Lal Mukundlal Saraf, [1959] S.C.R. 1350 at 1363, Sales Tax Officer, Pilibhit v. Budh Prakash jai Prakash, [1955] 1 S.C.R. 243, State o/ Madhya Pradesh v. Bhailal Bhai [1964] 6 S.C.R. 261, State of Kerala v. Aluminum Industries Ltd. 16 S.T.C. 689, and A. V. Subbarao v. The State of Andhra Pradesh [1965] 2 S.C.R. 577, referred to. Per Sikri and Hegde, JJ. (dissenting): The petition has to be allowed and the petitioners must be granted the relief prayed for. Per Sikri, J.: Article 32(2) of the Constitution confers a judicial power on this Court, and like all judicial powers, unless there is an express provision to the contrary, it must be exercised in accordance with fundamental principles of administration of justice, and one such fundamental principle is that stale claims should not be given effect to. [833 F--G] The Limitation Act does not directly apply to a petition under Art. 32 and to invoke the analogy of the Limitation Act is not appropriate when dealing with petitions under Art. 32. If a claim is barred under the Limitation Act, prima facie it is a stale claim but even if it is not so barred, it may not' be entertained by this Court if on the facts of the case there is unreasonable delay. To issue a writ, direction or order in the nature of mandamus certiorari or prohibition after a delay of 12 years or 6 years would, except when there are exceptional circumstances, be strange. It is difficult to lay down a precise period, but a period of one year may be taken as the period beyond which the claim would be a stale claim unless the delay is explained. The time spent in making representations to higher authorities may be taken as a good explanation for any delay. Such a practice would not destroy the guarantee under Art. 32, because, the article nowhere lays down that a petition, however late, should be entertained. [833 G; 835 C-H] In the present case, the petitioners were mistaken in thinking that the money was liable to be paid under a valid law and hence under s. 72 of the Contract Act, the petitioners would be entitled to the relief claimed. The grounds urged before the High Court show that it never struck the petitioners that the provision could be challenged on the ground ulti-mately accepted by this Court. If the petitioners had not moved the High Court but had paid on demand they would have been entitled to maintain the petition in this Court. The position could not be worse became they exercised their right under Art. 226. When a petitioner approaches a High Court and fails, it could not be said that payments made by him thereafter were not under a mistake of law, even if the point on which this Court ultimately strikes down the provision under which the payments were made was never raised in the High Court. The petitioners discovered, like all assessees their mistake when this Court struck down s. 12A(4) of the 1946-Act and they came to this Court within 6 months of that date and hence there was no delay. [837 G--H; 839 B---E] Daryao v. State of U.P. [1962] 1 S.C.R. 574, Amalgamated Coalfields Ltd. v. Janapada Sabha, Chindwara, A.I.R. 1964 S.C. 1013, 1018, Sales Tax Officer v. Kanhaiyalal, [1959] S.C.R. 1350 andKantilal Babulal v. H.C. Patel, Sales Tax Officer, 21 S.T.C. 174, referred to. Per Hegde, J.: In view of the decision of this Court in Kantilal Babulal v.H.C. Patel, 21 S.T.C. 174 which struck down s. 12A(4) or the 1946-Act, the impugned collection under s. 21(4) of the 1953-Act was without the authority of law and consequently the exaction infringed the fundamental right of the petitioners under Art. 19(1)(f). Hence the petitioners have a fundamental right to approach this' Court under Art. 32 for relief and this Court has a duty to afford them the appropriate relief. Since the right given to the petitioners under Art. 32 is itself a fundamental right and does not depend on the discretionary powers of this Court, as in 1be case of Art. 226, it is inappropriate to equate the duty imposed on this Court to the powers of Chancery Court in England or the equitable jurisdiction of Courts in the United States. The fact that the petitioners have no equity in their favour is an irrelevant circumstance in deciding the nature of the right available to an aggrieved party under Art. 32. This Court is charged by the Constitution with the special responsibility of protecting and enforcing the fundamental rights, and hence leaches on the part of an aggrieved party cannot deprive him of his right to get relief under Art. 32. In fact, law reports do not show a single instance of this Court refusing to grant relief on the ground of delay. If this Court could refuse relief on the ground of delay, the power of the Court under Art. 32 would be a discretionary power and the right would cease to be a fundamental right. The provisions contained in the Limitation Act do not apply to proceedings under Arts. 226 and 32 and if these provisions of the Limitation Act are brought in indirectly to control the remedies conferred by the ConstitUtion, it would be a case of Parliament indirectly abridging the fundamental rights which this Court, in Golaknath's case, [1967] 2 S.C.R. 762, held that Parliament cannot do. The 'fear. that forgotten claims and discarded rights against Government may be sought to be enforced after the lapse of a number of years if fundamental rights are held to be enforceable without any time limit, is an exaggerated one, for, after all, a petitioner can only enforce an existing right. [856 D. F--H; 857 A, B, D, G-H; 858 A, D--E, F--H; 859 H] In this case the petitioners have an existing right even if their remedy under the ordinary law is barred. This Court struck down s. 12A(4) of the 1946-Act on a ground not put forward by the petitioners in the High Court but on a wholly different ground. A mere impression of a party that a provision of law may be ultra vires cannot be equated to knowledge that the provision is invalid. and the fact, that, after a futile attempt to get the provision in question declared invalid the petitioners gave up their fight and submitted to the law which was apparently valid is no proof of the fact that they knew that the provision in question was invalid. There is no reason for rejecting the plea of the petitioners that they became aware of the invalidity of the provision only after the decision of this Court in Kantilal's case, and since the petition was filed very soon thereafter, the petitioners were entitled to relief. [860 C--G] State of M.P.v. Bhailal Bhai, [1964] 6 S.C.R. 261, referred to. (2) (By Full Court): The petition is not barred by res judicata. Per Hidayatullah, C.J. Where the order of the High Court under Art. 22% is not a speaking order or the matter has been disposed of on some ground other than on merits, at the threshold, this Courtmay entertain the application under Art. 32. [831 B] Daryao v. State of U.P. [1962] 1 S.C.R. 574, explained. Per Sikri, Bachawat and Mitter, JJ.: When a petition under Art. 226 is dismissed not on the merits but because of the laches on the party applying for ,the writ or because an alternative remedy was available to him, such dismissal is not a bar to a subsequent petition under Art. 32, except in cases when the facts found by the High Court might them selves be relevant under Art. 32. [833 E--F; 839 F--G; 855 C--D,F-G] Daryao's case, [1962] 1 S.C.R. 574 and Joseph v. State of Kerala, A.I.R. 1965 S.C. 1514, referred to. Per Hegde. J.: It is only when the right claimed by the petitioner in his petition under Art. 32 had been claimed in the High Court under Art. 226 and negatived by the High Court and that decision had become final as it was not appealed against, that the petitioner would not be able to agitate the right over again in this Court under Art. 32. [856 B--C] Daryao's case, [1962] 1 S.C.R. 574, explained. - 22 of 89 and a 'B' form having been filed by the investigating Agency which was approved by the Magistrate, inclusion of the said period in the fresh FIR is itself bad and, therefore, the FIR is liable to be quashed. 5. Having considered the rival submissions made by counsel for the parties and having examined the provisions of the Criminal Procedure Code as well as the Prevention of Corruption Act we find ourselves unable to agree with the submission of Mr. Sibbal, the learned senior counsel appearing for the appellant that the present FIR itself is bad in law. Though the earlier period also could be a subject matter of investigation for variety of reasons like some assets not being taken into account or some materials brought during investigation not being taken into account yet at the same time the results of the earlier investigation cannot be totally obliterated and ignored by the Investigating Agency. For the aforesaid reasons, while we are not in a position to quash the FIR, but we would make it clear that the Investigating Authority will certainly look into the earlier proceedings and the result of investigation thereunder and the submission of 'B' Form which was duly accepted by the competent Court while investigating into the present proceedings as well as the observations made by us in this Judgment.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => ' Kapil Sibal,; Siddharth Dave,; Lakshmi Narayan,; ', 'counseldef' => '', 'court' => 'Supreme Court of India', 'court_type' => 'SC', 'decidedon' => '1999-02-19', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' G.B. Pattanaik and; M.B. Shah, JJ.', 'judgement' => '<p style="text-align: justify;">Pattanaik, J.</p><p style="text-align: justify;">1. Leave granted.</p><p style="text-align: justify;">2. The appellant is a Class-I officer of Karnataka Administrative Service. On 24.8.1989 a report was drawn up against him under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act alleging therein that he has assets disproportionate to his known source of income. After investigation the Inspector General of Police, Bureau of Investigation, Karnataka Lokayukta authorised the Investigating Officer to submit a 'B' report before the Special Judge, Bangalore where the matter was pending and after issuance of a public notice in the prescribed form inviting objections to the aforesaid 'B' report from the interested persons by order dated 11.4.1991, the said 'B' report was accepted by the learned Special Judge. Properties of the appellant which had been earlier attached were directed to be released. On 25.7.95 the Supdt. of Police Karnataka Lokayukta authorised the Deputy Supdt. of Police to investigate into the assets of the appellant and find out whether an offence has been committed under Section 13(1)(e) read with Section 13(2) of the <a href="/act/51650/prevention-of-corruption-act-1988-complete-act">Prevention of Corruption Act, 1988</a>. On the same day an FIR was filed alleging commission of offence against the appellant under Section 13(1)(e) read with Section 13(2) of the Act and the gravamen of the allegation is that between the period from 1.8.78 to 25.7.95 the appellant has acquired assets amounting to Rs. 58,77,000 as against his known source of income of Rs. 9,90,000 and thereby the disproportion is to the tune of Rs. 52,17,000. The appellant filed a Criminal Petition before the High Court of Karnataka invoking jurisdiction under Section 482 of the CrPC praying for quashing of the FIR in LAC Crime No. 21 of 95 inter alia on the ground that Crime No. 22 of 89 having been registered against the appellant for a check period 1.8.78 till 24.8.89 and after due investigation a 'B' report having been filed and the same being accepted it was not proper for the investigating Authority to file another FIR which includes the earlier check period of 1.8.78 till 24.8.89. The learned Judge of the High Court, however, was not persuaded to agree with the aforesaid submission of the learned Counsel appearing for the appellant, and on examining the FIR and the allegations made therein came to the conclusion that it was a set of fresh allegations in respect of fresh alleged assets during a fresh check period and as such, question of quashing the FIR does not arise. It is against the aforesaid order of the learned Single Judge of Karnataka High Court the present appeal has been preferred.</p><p style="text-align: justify;">3. Mr. Sibbal, the learned senior counsel appearing for the appellant contended that the assets of the appellant for the period 1.8.78 till 24.8.89 having been the subject matter of an investigation pursuant to Crime Case No. 22 of 89 and a 'B' form having been filed by the investigating Agency which was approved by the Magistrate, inclusion of the said period in the fresh FIR is itself bad and, therefore, the FIR is liable to be quashed. Mr. Sibbal, also contended that in view of Sub-section (8) of Section 173 of the CrPC the Investigating Agency has the right to file fresh report on the basis of fresh materials but that not having been done the impugned FIR for the period 1.8.78 till 25.7.95 cannot be sustained. According to Mr. Sibbal the very fact that the Investigating Agency is not aware of the earlier criminal proceeding and the investigation thereupon which ultimately ended in a 'B' form and accepted by the Court indicates the total non-application of mind and pursuing the appellant maliciously and, therefore, the Court should interfere with the proceeding. According to Mr. Sibbal after the FIR is given whatever statements are received are in course of investigation under Section 161 of the CrPC and that being the position there cannot be two FIRs for the period 1.8.78 till 24.8.89. The learned Counsel also urged that in view of the provisions contained in Section 13(1)(e) of the Prevention of Corruption Act the explanation offered by the accused in respect of the prior proceedings having been accepted the said assets could not have been again taken into account for a subsequent criminal case. Mr. Sibbal also further submitted that in any view of the matter the assets of the Government servant are to be valued on the date of acquisition and not on the date of verifying of the fact and the very asset which was valued in course of earlier proceeding at Rs. one lakh should not have been valued at Rs. three lakhs or Rs. Four lakhs, as in the present case and such valuation itself is an unfair investigation causing undue harassment to the accused appellant.</p><p style="text-align: justify;">4. Mr. Mahale, the learned Counsel appearing for the respondents on the other hand submitted, that the parameters for quashing an FIR having been laid down by this Court in Bhajan Lal's case and certain illustrations given by this Court, the present case does not fall within the said parameters and, therefore, the High Court was fully justified in not accepting the prayer of the accused appellant. Mr. Mahale also submitted that acceptance of a 'B' form by the Court cannot be held to be an order of acquittal after the accused being tried as provided under Section 300 of the CrPC, and therefore, there is no legal impediment to have a fresh First Information Report for the entire service period of a government servant and investigate into the assets of the employee for the entire period. Mr. Mahale, however, fairly stated that the assets of the employee will have to be valued on the date of acquisition and not on the date the Criminal case is being instituted. He also submitted that the investigating Agency is duty bound to take into consideration the fact of 'B' form filed in Criminal Case No. 22 of 89 and the order of the Magistrate passed thereon before ultimately filing the chargesheet or the 'B' form as the case may be, in the present case. But according to him the very investigation cannot be quashed at this stage.</p><p style="text-align: justify;">5. Having considered the rival submissions made by counsel for the parties and having examined the provisions of the Criminal Procedure Code as well as the Prevention of Corruption Act we find ourselves unable to agree with the submission of Mr. Sibbal, the learned senior counsel appearing for the appellant that the present FIR itself is bad in law. We do not find any provision in the Code which debars the filing of an FIR and investigating into the alleged offences merely because for an earlier period namely 1.8.78 to 24.8.89 there was First Information Report which was duly investigated into and culminated in a 'B' form which was accepted by a Competent Court. At the same time we are also of the opinion that the conclusion of the High Court that the present proceeding relates to fresh alleged assets and fresh check period is not wholly correct, in as much as admittedly the check period from 1.8.78 till 24.8.89 was the subject matter in the Crime Case No. 22 of 89 and the same ended in submission of 'B' form. Though the earlier period also could be a subject matter of investigation for variety of reasons like some assets not being taken into account or some materials brought during investigation not being taken into account yet at the same time the results of the earlier investigation cannot be totally obliterated and ignored by the Investigating Agency. But that cannot be a ground for quashing of the First Information Report itself and for injuncting the investigating authority to investigate into the offence alleged. We also find sufficient force in the arguments of Mr. Sibbal that the assets which were valued in the earlier investigation proceeding at a particular value cannot be valued higher in the present proceeding unless any positive ground is there for such valuation. For example, a car which was valued in the earlier proceeding at Rs. 60,000 could not have been valued at Rs. 1,70,000 in the present proceedings but at this stage the Court is not required to go into these matters as investigation is only at threshold. For the aforesaid reasons, while we are not in a position to quash the FIR, but we would make it clear that the Investigating Authority will certainly look into the earlier proceedings and the result of investigation thereunder and the submission of 'B' Form which was duly accepted by the competent Court while investigating into the present proceedings as well as the observations made by us in this Judgment. Subject to the aforesaid observations this appeal is disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => 'AIR1999SC1765; 1999(1)ALD(Cri)468; 1999(2)ALT(Cri)280; 1999CriLJ2583; 1999(1)Crimes109(SC); JT1999(1)SC540; 1999(1)SCALE561; (1999)3SCC247; [1999]1SCR780; 2000(1)SLJ106(SC)', 'ratiodecidendi' => '', 'respondent' => 'State of Karnataka', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '645091' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/' $shops2 = nullinclude - APP/View/Case/meta.ctp, line 39 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
LAW: Section 13(1)(e, Section 13(2, Section 13(1)(e, Section 13(2, Section 13(1)(e, Section 13(2, Section 482, Section 173, Section 161 of the CrPC, Section 300, the Criminal Procedure Code, the Crime Case No
NORP: J.1
ORG: Karnataka Administrative Service, the Prevention of Corruption Act, Bureau of Investigation, the Prevention of Corruption Act, FIR, the High Court, CrPC, FIR, Authority, FIR, the High Court, FIR, FIR, Karnataka High Court, Agency, Magistrate, FIR, FIR, FIR, the Investigating Agency, Court, Court, FIR, Counsel, the Prevention of Corruption Act, Government, FIR, Court, Court, the High Court, Court, CrPC, First Information Report, Agency, Magistrate, the Prevention of Corruption Act, FIR, FIR, First Information Report, a Competent Court, the High Court, the Investigating Agency, the First Information Report, Court, FIR, the Investigating Authority, Court
CARDINAL: 24.8.1989, 25.7.95, 1.8.78, 25.7.95, 58,77,000, 52,17,000, 21, 95, 22, 89, 24.8.89, 1.8.78, 24.8.89, 24.8.89, 22, 8), 25.7.95, two, 24.8.89, one, three, Four, 22, 1.8.78, 24.8.89, 1.8.78, 24.8.89, 22, 60,000, 1,70,000
PERSON: Karnataka Lokayukta, Bangalore, Karnataka Lokayukta, Sibbal, Sibbal, Sibbal, Sibbal, Sibbal, Mahale, Bhajan Lal's, Mahale, Mahale, Criminal, Sibbal, Sibbal
DATE: 11.4.1991, 1988, the same day, 89, Section 13(1)(e, 89, 89
GPE: Karnataka, Single
WORK_OF_ART: Crime Case No, Criminal Case No
PRODUCT: Judgment