2025 INSC 85
SUPREME COURT OF INDIA
(HON’BLE
DIPANKAR DATTA, J. AND HON’BLE MANMOHAN, JJ.)
BISWAJIT DAS
Petitioner
VERSUS
CENTRAL BUREAU OF
INVESTIGATION
Respondent
Criminal
Appeal No. 2052 of 2014-Decided on 16-01-2025
Criminal, Corruption
(A)
Penal Code, 1860, Section 468 r/w Section 120(B), Section 271 and 465 r/w
Section 120(B) and Section 420 r/w Section 120(B) - Prevention of
Corruption Act, 1988, Section 2(c)(iii) ,Section 13(1)(d) read with
Section 13(2) – Corruption – Presumption – Whether the provisions of
the PC Act would be applicable to the appellant or not – Appellant -
a Development Officer of Life Insurance Corporation of India was found guilty
of being instrumental, together with a co-convict, in obtaining settlement of
two insurance claims by projecting the insured [(PW - 22)] as dead although he was, in fact, alive – Held
that having regard to the provisions of Section 2(c)(iii) of the PC
Act read with Section 13, as it then stood, the appellant serving as a
Development Officer in the LICI, which has been established by a Central
statute, namely, the Life Insurance Corporation of India Act, 1956, had
committed the offences and the contention that the PC Act does not
apply to him has no substance -Held that on the basis of the materials on
record, the trial court as well as the High Court was justified in returning a
finding that the appellant was guilty of the offences for which he was charged,
both under the IPC and the PC Act.
(Para 18 to 21)
(B)
Penal Code, 1860, Section 468 r/w Section 120(B), Section 271 and 465 r/w
Section 120(B) and Section 420 r/w Section 120(B) - Prevention of
Corruption Act, 1988, Section 2(c)(iii) ,Section 13(1)(d) read with
Section 13(2) – Corruption – Reduction in sentence – Prayer for - Perusal
of the Record of Proceedings reveal that the appellant was released on bail
after he had served 22 (twenty-two) of the 36 (thirty-six) months’ prison term
imposed by the trial court - At the relevant time, the minimum sentence for the
offence under Section 13(1)(d) read with Section 13(2) of
the PC Act was one year – Held that since the date of the incident relates back
to 2004 and the appellant has spent a little less than 2/3rd of the prison term
of 36 (thirty-six) months in custody, interest of justice would be sufficiently
served if the sentence is altered to the period of imprisonment already
undergone - While maintaining the conviction
directed that the appellant shall not be required to serve the remainder of
the prison term.
(Para 23 to 26)
(C)
Constitution of India, Article 136 –
Special Leave Petition - Issuing of limited notice - Objection raised by
respondent that having regard to the limited scope of the notice to show cause,
it is not open to us to expand the scope of the appeal, hear him on all the
points and record an order acquitting the appellant, if satisfied – Held that when
a limited notice is issued by a bench on an appeal/petition, more often than
not, the view taken is tentative - There could be occasions when the claim of
the party succeeding before the court below is demonstrated to be untenable
because of a patent infirmity in the findings recorded in the impugned
judgment, or a glaring error in the procedure followed having the effect of
vitiating the proceedings is shown to exist, at any subsequent stage of the
proceedings, which might have been overlooked by the Bench when it issued
limited notice - Justice could be a real casualty if the same or the subsequent
Bench, in all situations of limited notice having been issued initially, is
held to be denuded of its jurisdiction to rule on the merits of the contentions
relatable to points not referred to in the notice issuing order - As it is,
since exercise of jurisdiction under Article 136 is discretionary,
notices on appeals/petitions are not frequently issued by this Court -
Nonetheless, if in a given case, notice is issued which is limited on terms but
the party approaching the Court is otherwise persuasive in pointing out that
the case does involve a substantial question of law deserving consideration and
the Bench is so satisfied, see no reason
why the case may not be heard on such or other points - In such a case, the
jurisdiction to decide all legal and valid points, as raised, does always exist
and would not get diminished or curtailed by a limited notice issuing order -
However, whether or not to exercise the power of enlarging the scope of the
petition/appeal is essentially a matter in the realm of discretion of the Bench
and the discretion is available to be exercised when a satisfaction is reached
that the justice of the case so demands - If this position is not accepted,
Order LV Rule 6 of the Supreme Court Rules, 2013 read with Article
142 of the Constitution will lose much of its significance.
(Para
8 and 16)
JUDGMENT
1
The appellant was convicted for commission of offences punishable under Section
468 r/w Section 120(B), Section 271 and 465 r/w Section 120(B) and Section 420
r/w Section 120(B) of the Indian Penal Code, 1860 [IPC] as well as Section
13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988[PC Act].
2.
For all but one of the offences punishable under the IPC, sentence of two
years’ rigorous imprisonment[RI] was
imposed on the appellant. For the offence under Section
271 and 465 r/w Section 120(B), sentence of R.I. for a year
was imposed. Insofar as the offence punishable under sub-section (1)(d) read
with sub-section (2) of Section 13 of the PC Act is concerned,
the appellant was sentenced to three years’ R.I.
3.
The conviction and sentence dated 31st July, 2009 having been carried by the
appellant to the High Court of Gauhati in an appeal under Section 374
(2) of the Code of Criminal Procedure, the impugned judgment and order
dated 27 th September, 2013 of a learned single Judge affirmed the same.
4.
The appellant thereafter approached this Court with a special leave petition
out of which this criminal appeal, by special leave, arises.
5.
On 3rd January, 2014, a coordinate Bench of this Court passed the following
order:
“Issue notice confined
to the question as to whether the petitioner could have been convicted
under Section 13(1)(d) read with Section 13(2) of the
Prevention of Corruption Act, 1988 and on the quantum of sentence for the other
offences.”
6.
Service effected, this Court heard the parties and granted leave on 12th
September, 2014 where after the appellant was enlarged on bail on 12th October,
2015.
7.
Mr. Hrishikesh Baruah, learned counsel appearing for the appellant, having
commenced his argument assailing the findings returned by the trial court in
respect of the offences under the IPC, which were found to be proved, Mr.
Vikramjeet Banerjee, learned Additional Solicitor General appearing for the
respondent, invited our attention to the order issuing limited notice.
8.
We then called upon Mr. Baruah to overcome the objection raised that having
regard to the limited scope of the notice to show cause, it is not open to us
to expand the scope of the appeal, hear him on all the points and record an
order acquitting the appellant, if satisfied. He referred to the decisions of
this Court in Taherakhatoon (D) by Lrs. vs. Salambin Mohammad [(1999) 2 SCC 635] to support his
contention that this Court having granted leave without any restriction, it is
a fit and proper case where we ought to hear him on the merits of all the
points that are available to be taken on behalf of the appellant for obtaining
a clear acquittal.
9.
In Taherakhatoon (supra), this Court held that:
“15. It is now well
settled that though special leave is granted, the discretionary power which
vested in the Court at the stage of the special leave petition continues to
remain with the Court even at the stage when the appeal comes up for hearing
and when both sides are heard on merits in the appeal. This principle is
applicable to all kinds of appeals admitted by special leave under Article
136, irrespective of the nature of the subject- matter. ...” xxx “20. In view
of the above decisions, even though we are now dealing with the appeal after
grant of special leave, we are not bound to go into merits and even if we do so
and declare the law or point out the error — still we may not interfere if the
justice of the case on facts does not require interference or if we feel that
the relief could be moulded in a different fashion. ... “
10.
Next, Mr. Baruah placed the decision of this Court in Yomeshbhai
Pranshankar Bhatt vs. State of Gujarat[(2011)
6 SCC 312] in support of his contention that notwithstanding limited
notice having been issued, the scope of the appeal could be expanded by this
Court. The opinion of the coordinate Bench expressed in the said
decision reads thus:
“4. The learned
counsel for the appellant urged that though at the time of issuing notice, this
Court limited its rights to raise points only within the confines of Section
304 of the Penal Code, the Court is not bound at the time of final hearing with
that direction given while issuing notice and the appellant is entitled to urge
all the questions including his right to urge that he should have been
acquitted in the facts and circumstances of the case.”
xxx
8. The provisions
of Article 142 of the Constitution have been construed by this Court
in several judgments. However, one thing is clear that under Article
142 of the Constitution, this Court in exercise of its jurisdiction may
pass such decrees and may make such orders as is necessary for doing complete
justice in any case or matters pending before it. It is, therefore, clear that
the Court while hearing the matter finally and considering the justice of the
case may pass such orders which the justice of the case demands and in doing
so, no fetter is imposed on the Court’s jurisdiction except of course any
express provision of the law to the contrary, and normally this Court cannot
ignore the same while exercising its power under Article 142. An
order which was passed by the Court at the time of admitting a petition does
not have the status of an express provision of law.
Any observation which
is made by the Court at the time of entertaining a petition by way of issuing
notice are tentative observations. Those observations or orders cannot limit
this Court’s jurisdiction under Article 142.
xxx
11. In view of this
position under the Rules and having regard to the constitutional provision
under Article 142, we do not think that this Court at the time of final
hearing is precluded from considering the controversy in its entire perspective
and in doing so, this Court is not inhibited by any observation in an order
made at the time of issuing the notice.
xxx
15. We are, therefore,
entitled to consider the plea of the appellant for acquittal despite the fact
that at the time of issuing notice, it was limited in terms of the order dated
27-7- 2009. We, however, make it clear that this cannot be a universal practice
in all cases. The question whether the Court will enlarge the scope of its
inquiry at the time of final hearing depends on the facts and circumstances of
the case. Since in the facts of this case, we find that the appellant should be
heard on all points, we have come to the aforesaid conclusion.”
11.
Reference was also made to a decision of this Court of recent origin
in Kutchi Lal Raeshwar Ashram Trust Evam Anna Kshetra Trust v. Collector,
Haridwar[(2017) 16 SCC 418] where,
upon noticing the decision in Indian Bank v. Godhara Nagrik Coop. Credit
Society Ltd. [(2008) 12 SCC 541] , it
has been held by another coordinate Bench as follows:
“18. In Indian
Bank v. Godhara Nagrik Coop. Credit Society Ltd., a Bench of two Judges of this
Court held that (SCC p. 548, para 9) though a limited notice was issued
initially, leave having been granted thereafter, ‘all the contentions of the
parties are now open’.
19. We respectfully
reiterate and adopt this view which is based on a sagacious approach to the
constitutional powers that are conferred upon the Court. Article
142 embodies the fundamental principle that the jurisdiction of the Court
is to render complete justice and as an incident of it, the Court may pass such
decrees or orders as it considers fit. When the Court initially issues a
limited notice but subsequently grants leave, the scope of the appeal does not
raise a matter of jurisdiction but of judicial discretion. Since it constitutes
a matter of discretion and not of jurisdiction, the guiding principle has to be
the advancement of substantial justice.”
12.
We are also not oblivious of the decision in Spring Meadows Hospital v.
Harjol Ahluwalia[(1998) 4 SCC 39],
relied on by Mr. Banerjee, where this Court refused to examine a contention in
view of limited notice by recording as follows:
“6. ... But we are not
in a position to examine this contention advanced on behalf of the learned
counsel appearing for the insurer in view of the limited notice issued by this
Court. It would not be open for us to entertain this question for consideration
as the notice issued by this Court indicates that only the award of
compensation to the parents of the minor child and the legality of the same can
only be considered. We are, therefore, unable to examine the contention raised
by the learned counsel appearing for the insurer.”
13.
Shifting views of this Court, to an extent striking discordant notes, are
discernible on bare reading of the aforesaid decisions. A water-tight approach
in Spring Meadows Hospital (supra) is followed by a guarded approach
in Yomeshbhai Pranshankar Bhatt (supra), bearing in mind Article
142 of the Constitution; and, ultimately, we find the liberal approach
adopted in Kutchi Lal Rameshwar Ashram Trust Evam Anna Kshetra
Trust (supra), where this Court had the guiding principle of rendering
substantial justice foremost in its mind.
14.
Taherakhatoon (supra) is not on limited notice; hence, it is
distinguishable. Having perused the decision in Yomeshbhai
Pranshankar Bhatt (supra), we find the same to bear close resemblance with
the point under consideration. Much water has flown since Spring
Meadows Hospital (supra) was rendered. It may not be good law having
regard to the line of decisions delivered by this Court later. We are conscious
that the said decision has neither been overruled nor distinguished
by any later decision; hence, being a coordinate Bench decision, we are not
competent to rule that the said decision did not lay down good law.
However, one distinguishing feature is noticeable. Spring Meadows
Hospital (supra) arose out of a statutory appeal under the Consumer
Protection Act, 1986 and was not a case where jurisdiction
under Article 136 was invoked. In a matter such as the present,
this distinction enables us not to be guided by Spring Meadows
Hospital (supra). In any event, whatever be the precedential value
of the said decision, we are inclined to the opinion that the views
expressed in Yomeshbhai Pranshankar Bhatt (supra) and Kutchi Lal
Rameshwar Ashram Trust Evam Anna Kshetra Trust (supra) are in consonance
with the rapidly changing times of liberty being given the primordial
consideration and, therefore, commend acceptance.
15.
Also, tracing the development of jurisprudence in criminal matters by this
Court through recent decisions would reveal a novel approach of sorts. Even
after a convict’s challenge to his conviction and sentence failing, such a
convict’s case may still be reopened upon a co-convict’s appeal, directed
against the self-same judgment, succeeding and similar relief granted to the
co- convict being extended to the convict by even recording an order of
acquittal. One may in this connection profitably refer to the decision
in Javed Shaukat Ali Qureshi v. State of Gujarat[(2023) 9 SCC 164] . There, a special leave petition filed by
the petitioner, Accused 2, challenging his conviction was dismissed by this
Court. While considering a criminal appeal carried by the co-accused - Accused
1, 5 and 13 - from the common judgment of conviction and order on sentence,
this Court while acquitting Accused 1, 5 and 13 found Accused 2 to stand on
similar footing and, hence, recalled the order of dismissal of Accused 2’s SLP,
granted leave and acquitted him. The pro-liberal and justice-oriented approach
of this Court to secure the liberty of citizens cannot, therefore, go
unnoticed.
16.
We may now summarize the principles in view of the precedents noticed above.
When a limited notice is issued by a bench on an appeal/petition, more often
than not, the view taken is tentative. There could be occasions when the claim
of the party succeeding before the court below is demonstrated to be untenable
because of a patent infirmity in the findings recorded in the impugned
judgment, or a glaring error in the procedure followed having the effect of
vitiating the proceedings is shown to exist, at any subsequent stage of the
proceedings, which might have been overlooked by the Bench when it issued limited
notice. Justice could be a real casualty if the same or the subsequent Bench,
in all situations of limited notice having been issued initially, is held to be
denuded of its jurisdiction to rule on the merits of the contentions relatable
to points not referred to in the notice issuing order. As it is, since exercise
of jurisdiction under Article 136 is discretionary, notices on
appeals/petitions are not frequently issued by this Court. Nonetheless, if in a
given case, notice is issued which is limited on terms but the party
approaching the Court is otherwise persuasive in pointing out that the case
does involve a substantial question of law deserving consideration and the
Bench is so satisfied, we see no reason why the case may not be heard on such
or other points. In such a case, the jurisdiction to decide all legal and valid
points, as raised, does always exist and would not get diminished or curtailed
by a limited notice issuing order. However, whether or not to exercise the
power of enlarging the scope of the petition/appeal is essentially a matter in
the realm of discretion of the Bench and the discretion is available to be
exercised when a satisfaction is reached that the justice of the case so
demands. If this position is not accepted, Order LV Rule 6 of the Supreme Court
Rules, 2013 read with Article 142 of the Constitution will lose much
of its significance.
17.
Based on our aforesaid understanding of the legal position, we have heard Mr.
Baruah on the merits of the appeal without allowing any technicality to stand
in the way to satisfy our conscience that the limited notice issued by the
coordinate Bench does not result in any injustice being caused to the
appellant.
18.
The prosecution version need not be noticed in detail. Suffice it to note that
the appellant – a Development Officer of Life Insurance Corporation of India[LICI] - was found guilty of being
instrumental, together with a co-convict, in obtaining settlement of two
insurance claims by projecting the insured [(PW
- 22)] as dead although he was, in fact, alive. The evidence of the
insured, inter alia, to the effect that the appellant and the co-convict took
the policies from him on the assurance of the same being upgraded was not
dislodged even after thorough cross-examination. That the insured and the
appellant were friendly is further borne out from the records. Significantly,
the appellant could not satisfactorily explain why he filled up the six blank
cheques (Exhibits 4-9) for different amounts totaling to Rs. 1,67,583, i.e.,
the amount for satisfaction of the insurance claim. There is other evidence on
record which, read together with the evidence of the insured and in the light
of the appellant having filled up the blank cheques, would unmistakably lead us
to the conclusion that the prosecution was successful in driving home the
charges against him. Therefore, even after hearing Mr. Baruah in extenso, we do
not find any good reason or ground to hold that conviction of the appellant for
offences punishable under the IPC was erroneously recorded by the
trial court and was affirmed by the High Court, also erroneously.
19.
Moving on to consider the points limited by the notice issuing order dated 3rd
January, 2014 as to whether the provisions of the PC Act would be
applicable to the appellant or not, we have considered the submissions advanced
by Mr. Baruah and perused the decision relied on by him in State of
Gujarat v. Manshankar Prabhashankar Dwivedi[(1972)
2 SCC 392].
20.
Having regard to the provisions of Section 2(c)(iii) of the PC Act
read with Section 13, as it then stood, the appellant serving as a
Development Officer in the LICI, which has been established by a Central
statute, namely, the Life Insurance Corporation of India Act, 1956, had
committed the offences and the contention that the PC Act does not
apply to him has no substance. The decision in Manshankar Prabhashankar
Dwivedi (supra) was rendered in the case of a public servant who had not
committed any offence while discharging his official duty as a lecturer but had
indulged in corrupt practices while being required to perform the duty of an
examiner which, this Court held, was not his official duty. The decision is,
therefore, clearly distinguishable.
21.
We, thus, hold that on the basis of the materials on record, the trial court as
well as the High Court was justified in returning a finding that the appellant
was guilty of the offences for which he was charged, both under the IPC and the
PC Act.
22.
Now, we turn to the sentence imposed on the appellant. We have noticed
previously that while issuing notice, this Court by the order dated January 3,
2014 had also called upon the respondents to show cause on the question of
sentence imposed upon the appellant, meaning thereby that prima facie a case
for alteration/modification of the sentence had been set up.
23.
Perusal of the Record of Proceedings reveal that the appellant was released on
bail after he had served 22 (twenty-two) of the 36 (thirty-six) months’ prison
term imposed by the trial court.
24.
Mr. Banerjee, in his usual fairness, has brought to our notice that at the
relevant time, the minimum sentence for the offence under Section
13(1)(d) read with Section 13(2) of the PC Act was one year.
25.
Since the date of the incident relates back to 2004 and the appellant has spent
a little less than 2/3rd of the prison term of 36 (thirty-six) months in
custody, we are of the considered opinion that interest of justice would be
sufficiently served if the sentence is altered to the period of imprisonment
already undergone. It is ordered accordingly.
26.
While maintaining the conviction, we partially allow the appeal by directing
that the appellant shall not be required to serve the remainder of
the prison term. The bail bond shall stand discharged.
27.
Pending application(s), if any, stand disposed of.
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