K.S.Panduranga Vs State of Karnataka

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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 373 OF 2013 (Arising out of S.L.P. (Crl.) No. 3962 of 2012)

K.S. Panduranga ... Appellant

Versus

State of Karnataka ... Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The appellant was convicted for the offences

punishable under Sections 7, 13(1)(d) read with

Section 13(2) of the Prevention of Corruption Act,

1988 (for short “the Act”) by the learned Special

Judge, Bangalore, and sentenced to undergo one

year rigorous imprisonment and to pay a fine of

Rs.10,000/-, in default, to suffer a further rigorous

imprisonment for two months on the first score and

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four years rigorous imprisonment and to pay a fine of

Rs.15,000/- and on failure to pay fine to suffer further

rigorous imprisonment for three months on the

second count, with the stipulation that both the

sentences shall be concurrent.

3. In appeal, the High Court of Karnataka by the

impugned judgment, confirmed the conviction, but

reduced the sentence to two years’ rigorous

imprisonment from four years as far as the

imposition of sentence for the offence under Section

13(1)(d) read with Section 13(2) of the Act is

concerned and maintained the sentence in respect of

the offence under Section 7 of the Act.

4. The accusations which led to the trial of the accused-

appellant are that H.R. Prakash, PW-1, the owner of

Prakash Transport, was having a contract for the

transport of transformers belonging to Karnataka

Vidyuth Karkhane (KAVIKA), Bangalore, and the said

agreement was for the period 15.9.2000 to

14.9.2001. Under the said agreement, the

transporter was required to transport transformers

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from Bangalore to various places all over Karnataka.

Despite the agreement for transportation, three

months prior to the lodgment of the complaint, the

transport operator did not get adequate transport

work. The appellant, who was working as

Superintendent of KAVIKA, Bangalore, was incharge

of the dispatch department and, therefore, PW-1

approached him. At that juncture, a demand of

Rs.10,000/- was made as illegal gratification to give

him more transport loads. The accused-appellant

categorically told PW-1 that unless the amount was

paid, no load could be allotted to his company.

Eventually, a bargain was struck for payment of

Rs.5,000/- to get the load. As PW-1 was not

interested in giving the bribe amount to the accused,

he approached the Lokayukta and lodged a

complaint as per Exht. P-1 which was registered as

Criminal Case No. 9 of 2001. The investigating

agency of Lokayukta, after completing the

formalities, got a trap conducted. During the trap, a

sum of Rs.5,000/- was recovered from the custody of

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the accused. After completion of all the formalities,

sanction order was obtained from the competent

authority and charge sheet was placed before the

competent court for the offences punishable under

Sections 7 and 13(1)(d) read with Section 13(2) of

the Act.

5. The accused persons pleaded innocence and took the

plea of false implication.

6. The prosecution, in order to substantiate the

allegations against the accused, examined PWs 1 to

6 and marked the documents, Exhts. P-1 to P-12, and

brought on record MOs-1 to 12. The defence, in

order to establish its stand, examined a singular

witness, DW-1.

7. The learned trial Judge posed three questions,

namely, (i) whether the sanction order obtained to

prosecute the accused was valid and proper; (ii)

whether the prosecution had been able to prove that

the accused had demanded and accepted the illegal

gratification of Rs.5,000/- as a motive or reward for

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the purpose of showing an official favour to the

complainant, i.e., allotting transport loads and

thereby committed the offence under Section 7 of

the Act; and (iii) whether the prosecution had proven

that the accused, by means of corrupt and illegal

means, abused his position and obtained a pecuniary

advantage in the sum of Rs.5,000/-, as a result of

which he committed an offence punishable under

Section 13(1)(d) read with Section 13(2) of the Act.

The learned Special Judge, analyzing the evidence on

record, answered all the questions in the affirmative

and came to hold that the prosecution had been able

to bring home the charge and, accordingly, recorded

the conviction and imposed the sentence as

mentioned earlier.

8. On appeal being preferred, the High Court confirmed

the conviction and the sentence on the foundation

that the recovery, demand and acceptance of illegal

gratification had been established to the hilt.

9. We have heard Mr. S.N. Bhat, learned counsel for the

appellant. None has represented the State.

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10. The first plank of submission of the learned counsel

for the appellant is that the High Court could not

have heard the appeal in the absence of the counsel

for the accused and proceeded to deliver the

judgment. It is urged by him that though at a later

stage, the counsel appeared and put forth his

contention, yet the fundamental defect in proceeding

to deal with the appeal vitiates the verdict. To

bolster the said submission, he has commended us to

the decision in Mohd. Sukur Ali v. State of

Assam1. In the said case, the Division Bench held as

follows: -

“5. We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the

1 (2011) 4 SCC 729

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Constitution. Article 21 can be said to be the “heart and soul” of the fundamental rights.”

After so stating, the Bench relied upon the decision of

the US Supreme Court in Powell v. Alabama2 which was

cited with approval by this Court in A.S. Mohammed

Rafi v. State of Tamil Nadu3. Reference was also made

to Man Singh and another v. State of Madhya

Pradesh4 and Bapu Limbaji Kamble v. State of

Maharashtra5. Eventually, the Bench held as follows: -

“The Founding Fathers of our Constitution were themselves freedom fighters who had seen civil liberties of our people trampled under foreign rule, and who had themselves been incarcerated for long period under the formula “Na vakeel, na daleel, na appeal” (No lawyer, no hearing, no appeal). Many of them were lawyers by profession, and knew the importance of counsel, particularly in criminal cases. It was for this reason that they provided for assistance by counsel under Article 22(1), and that provision must be given the widest construction to effectuate the intention of the Founding Fathers.”

After so holding, the learned Judges set aside the

impugned judgment of the High Court and remitted the

2 77 L Ed 158 : 287 US 45 (1932) 3 (2011) 1 SCC 688 4 (2008) 9 SCC 542 5 (2005) 11 SCC 413

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matter to take a fresh decision after hearing the learned

counsel for the appellant in the High Court whose name

was not shown in the cause list and the name of the

former counsel was shown. We may hasten to clarify

whether in the said case the matter should have been

remitted or not is presently not the concern. The question

is whether the ratio laid down by the Division Bench that

even if the counsel for the accused does not appear

because of his negligence or deliberately, then the court

should not decide the case against the accused in the

absence of his counsel as he should not suffer for the fault

of the counsel.

11. At this stage, we think it appropriate to refer to the

decisions which have been relied on by the Division

Bench. In Bapu Limbaji Kamble (supra), the High

Court had convicted the appellant under Section 302

of the IPC on the charge of murdering his wife by

strangulating her to death. At the time of hearing of

the appeal, the counsel for the accused did not

appear. The High Court perused the evidence and

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decided the matter. In that context, this Court stated

thus:-

“We are of the view that the High Court should have appointed another advocate as amicus curiae before proceeding to dispose of the appeal. We say so especially for the reason that there are arguable points in the appeal such as the delay in giving the report to the police, the material discrepancy between the version in the FIR and the deposition of PW 4 and the non- disclosure by PW 3 of the alleged confession made by the accused after PW 4 came to the house. The question whether there is clinching circumstantial evidence to convict the appellant also deserves fuller consideration. Without expressing any view on the merits of the case, we set aside the impugned order of the High Court and remand the matter for fresh disposal by the High Court expeditiously, after nominating an amicus to assist the Court.”

12. From the aforesaid passage, it is demonstrable that

this Court has not stated as a principle that whenever

the counsel does not appear, the court has no other

option but to appoint an amicus curiae and,

thereafter, proceed with the case. What has been

stated above is that as there were arguable points in

appeal and further whether there was clinching

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circumstantial evidence to convict the appellant or

not, deserved a fuller consideration and in that

backdrop, the Court directed for nominating an

amicus to assist the Court. On a fair reading of the

aforesaid passage, it is quite clear that the direction

was issued in the special circumstances of the case.

13. In Man Singh and another (supra), the learned

single Judge of the High Court had dismissed the

appeal preferred by the appellant who had called in

question the legal propriety of his conviction for the

offence punishable under Section 8/18(b) of the

Narcotic Drugs and Psychotropic Substances Act,

1985 and such other offences. This Court observed

that when the appeal was called, the counsel who

was appointed through the Legal Aid Committee did

not appear and the learned single Judge heard the

matter with the assistance of the learned panel

lawyer for the respondent State. It was contended

before this Court that the High Court should not have

dismissed the appeal without engaging another

counsel or at least without appointing an amicus

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curiae. Resisting the said contention, it was

contended by the State that the High Court analysed

the relevant evidence including the evidence of the

two relevant witnesses and, hence, no fault could be

found with the judgment. The two-Judge Bench, after

recording the said stand and stance, opined thus: -

“5. We need not deal with the merits of the case as we find that the learned counsel appointed by the Legal Aid Committee did not appear on the date fixed before the High Court. The High Court could have in such circumstances required the Legal Aid Committee to appoint another counsel. Considering the seriousness of the offence, it would have been appropriate for the High Court to do so.”

14. On a careful reading of the decision in its entirety

and what has been aforestated, it is vivid that it has

not been laid down as a ratio that in each

circumstance, the High Court should appoint a

counsel failing which the judgment rendered by it

would be liable to be set aside.

15. In A.S. Mohammed Rafi v. State of Tamil Nadu

(supra), the Division Bench, after referring to

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Article 22(1), the dictum in Powell (supra) and

Anastaplo, In re6, the immortal words authored by

Thomas Erskine (1750-1823) “The Rights of Man”,

the Sixth Amendment of the US Constitution, the

Biography of Clarence Darrow, i.e, Attorney for the

Damned, Harper Lee’s famous novel To Kill a

Mocking Bird and Chapter II of the Rules framed by

the Bar Council of India, opined thus: -

“24. Professional ethics require that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. We declare that all such resolutions of Bar Associations in India are null and void and the right- minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country. It is the duty of a lawyer to defend no matter what the consequences, and a

6 6 L Ed 2d 135 : 366 US 82 (1961)

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lawyer who refuses to do so is not following the message of The Gita.”

Be it noted, in the said case, the Bar Association of

Coimbatore had passed a resolution that no member of

the Coimbatore Bar Association would defend the accused

policemen in criminal case against them in the said case.

16. Prior to that, the Division Bench has quoted the

observations of Sutherland, J. (pp. 170-171) from

Powell case (supra) that deals with the fate of an

accused who is not given the assistance of a counsel.

The relevant part is reproduced below: -

“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it,

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though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

17. We have referred to the said judgment in extenso as

it has been stated in Mohd. Sukur Ali (supra) that

the said passage has been quoted with approval in

A.S. Mohammed Rafi (supra).

18. On a studied perusal of the said decision, it is

noticeable that the Court has stated about the role of

the lawyer and the role of the Bar Association in the

backdrop of professional ethics and norms of the

Constitution. It has been categorically held therein

that the professional ethics require that a lawyer

cannot refuse a brief, provided a client is willing to

pay his fee and the lawyer is not otherwise engaged

and, therefore, no Bar Association can pass a

resolution to the effect that none of its members will

appear for a particular accused whether on the

ground that he is a policeman or on the ground that

he is a suspected terrorist. We are disposed to think

that in Mohd. Sukur Ali (supra), the aforesaid case

was cited only to highlight the role of the Bar and the

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ethicality of the lawyers. It does not flow from the

said pronouncement that it is obligatory on the part

of the Appellate Court in all circumstances to engage

amicus curiae in a criminal appeal to argue on behalf

of the accused failing which the judgment rendered

by the High Court would be absolutely unsustainable.

19. At this juncture, it is apt to survey the earlier

decisions of this Court in the field. In Shyam Deo

Pandey and others v. The State of Bihar7, a two-

Judge Bench of this Court was dealing with a criminal

appeal which had arisen from the order of the High

Court whereby the High Court, on perusal of the

judgment under appeal, had dismissed the criminal

appeal challenging the conviction. The Court

referred to Section 423 of the Old Code and came to

hold that the criminal appeal could not be dismissed

for default of appearance of the appellants or their

counsel. The Court has either to adjourn the hearing

of the appeal or it should consider the appeal on

merits and pass final orders. It is further observed

7 AIR 1971 SC 1606

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that the consideration of the appeal on merits at the

stage of final hearing and to arrive at a decision on

merits and pass final orders will not be possible

unless the reasoning and findings recorded in the

judgment under appeal is tested in the light of the

record of the case. The Court referred to the earlier

Section 421 of the Code which dealt with dismissal of

an appeal summarily and was different from an

appeal that had been admitted and required to be

dealt with under Section 423 of the Code. It is worth

noting that reliance was placed on Challappa

Ramaswami v. State of Maharashtra8 wherein

reliance was placed on Siddanna Apparao Patil v.

State of Maharashtra9 and Govinda Kadtuji

Kadam v. The State of Maharashtra10.

20. In Ram Naresh Yadav and others v. State of

Bihar11, a different note was struck by expressing

the view in the following terms: -

“It is no doubt true that if counsel do not appear when criminal appeals are called

8 AIR 1971 SC 64 9 AIR 1970 SC 977 10 AIR 1970 SC 1033 11 AIR 1987 SC 1500

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out it would hamper the working of the court and create a serious problem for the court. And if this happens often the working of the court would become well nigh impossible. We are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their mattes are decided on merits. The court can dismiss the appeal for non- prosecution and enforce discipline or refer the matter to the Bar Council with this end in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The court might as well appoint a counsel at State cost to argue on behalf of the appellants.”

21. In Bani Singh and others v. State of U.P.12, a

three-Judge Bench was called upon to decide whether

the High Court was justified in dismissing the appeal

filed by the accused-appellants therein against the

order of conviction and sentence issued by the trial

court for non-prosecution. The High Court had

referred to the pronouncement in Ram Naresh

Yadav (supra) and passed the order. The three-

Judge Bench referred to the scheme of the Code,

especially, the relevant provisions, namely, Section

384 and opined that since the High Court had already

admitted the appeal following the procedure laid

12 AIR 1996 SC 2439

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down in Section 385 of the Code, Section 384 which

enables the High Court to summarily dismiss the

appeal was not applicable. The view expressed in

Sham Deo’s case (supra) was approved with slight

clarification but the judgment in Ram Naresh

Yadav’s case (supra) was over-ruled. The three-

Judge Bench proceeded to lay down as follows: -

“.....It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Ss. 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused-appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are, therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadav’s case (AIR 1987 SC 1500) did not apply the provisions

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of Ss. 385-386 of the Code correctly when it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent.

16. Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not once but again and again till the Court issues a warrant for the appellant’s presence. A complaint to the Bar Council against the lawyer for non-appearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too would need the presence of the appellant for instructions and that would place the court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of the appellant, the higher Court can remedy the situation if there has been a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted.”

(Emphasis supplied)

22. From the aforesaid decision, the principles that can

be culled out are (i) that the High Court cannot

dismiss an appeal for non-prosecution simpliciter

without examining the merits; (ii) that the court is not

bound to adjourn the matter if both the appellant or

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his counsel/lawyer are absent; (iii) that the court

may, as a matter of prudence or indulgence, adjourn

the matter but it is not bound to do so; (iv) that it can

dispose of the appeal after perusing the record and

judgment of the trial court; (v) that if the accused is

in jail and cannot, on his own, come to court, it would

be advisable to adjourn the case and fix another date

to facilitate the appearance of the accused-appellant

if his lawyer is not present, and if the lawyer is

absent and the court deems it appropriate to appoint

a lawyer at the State expense to assist it, nothing in

law would preclude the court from doing so; and (vi)

that if the case is decided on merits in the absence of

the appellant, the higher court can remedy the

situation.

23. In Bapu Limbaju Kamble (supra), and Man Singh

(supra), this Court has not laid down as a principle

that it is absolutely impermissible on the part of the

High Court to advert to merits in a criminal appeal in

the absence of the counsel for the appellant. We

have already stated that the pronouncement in A.S.

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Mohammed Rafi (supra), dealt with a different

situation altogether and, in fact, emphasis was on the

professional ethics, counsel’s duty, a lawyer’s

obligation to accept the brief and the role of the Bar

Associations. The principle laid down in Sham Deo

Pandey (supra), relying on Siddanna Apparao

Patil (supra), was slightly modified in Bani Singh

(supra). The two-Judge Bench in Mohd. Sukur Ali

(supra), had not noticed the binding precedent in

Bani Singh (supra).

24. In Union of India and another v. Raghubir Singh

(Dead) by LRs etc.13, the question arose with

regard to the effect of the law pronounced by the

Division Bench in relation to a case relating to the

same point subsequently before a Division Bench or

a smaller number of Judges. Answering the said

issue, the Constitution Bench has ruled thus: -

“It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the Rule has been evolved, in order to promote consistency and certainty in the development of the law and its

13 (1989) 2 SCC 754

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contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. We may refer to a few of the recent cases on the point. In John Martin v. State of West Bengal14, a Division Bench of three-Judges found it right to follow the law declared in Haradhan Saha v. State of West Bengal15, decided by a Division Bench of five Judges, in preference to Bhut Nath Mate v. State of West Bengal16 decided by a Division Bench of two Judges. Again in Indira Nehru Gandhi v. Raj Narain17, Beg, J. held that the Constitution Bench of five Judges was bound by the Constitution Bench of thirteen Judges in Kesavananda Bharati v. State of Kerala18. In Ganapati Sitaram Balvalkar v. Waman Shripad Mage19, this Court expressly stated that the view taken on a point of law by a Division Bench of four Judges of this Court was binding on a Division Bench of three-Judges of the Court. And in Mattulal v. Radhe Lal20, this Court specifically observed that where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges. This Court also laid down in Acharya Maharajshri Narandraprasadji Anandprasadji Maharaj v.

14 (1975) 3 SCC 836 15 (1975) 3 SCC 198 16 (1974) 1 SCC 645 17 1975 Supp SCC 1 18 (1973) 4 SCC 225 19 (1981) 4 SCC 143 20 (1974) 2 SCC 365

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State of Gujarat21 that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was reaffirmed in Union of India v. Godfrey Philips India Ltd.22”

25. In N.S. Giri v. Corporation of City of Mangalore

and others23, while taking note of the decision in

LIC of India v. D.J. Bahadur24 in the context of

binding precedent under Article 141, the learned

Judges observed thus: -

“.....suffice it to observe that the Constitution Bench decision in New Maneck Chowk Spg. and Wvg. Co. Ltd. v. Textile Labour Assn.25 and also the decision of this Court in Hindustan Times Ltd. v. Workmen26 which is a four-Judge Bench decision, were not placed before the learned Judges deciding LIC of India case. A decision by the Constitution Bench and a decision by a Bench of more strength cannot be overlooked to treat a later decision by a Bench of lesser strength as of a binding authority; more so, when the attention of the Judges deciding the latter case was not invited to the earlier decisions available.”

21 (1975) 1 SCC 11 22 (1985) 4 SCC 369 23 (1999) 4 SCC 697 24 (1981) 1 SCC 315 25 AIR 1961 SC 867 26 AIR 1963 SC 1332

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26. Another Constitution Bench in Pradip Chandra

Parija and others v. Pramod Chandra Patnaik

and others27 has laid down that judicial discipline

and propriety demands that a Bench of two learned

Judges should follow a decision of a Bench of three

learned Judges. But if a Bench of two learned Judges

concludes that an earlier judgment of three learned

Judges is so very incorrect that in no circumstances

can it be followed, the proper course for it to adopt is

to refer the matter before it to a Bench of three

learned Judges setting out, the reasons why it could

not agree with the earlier judgment.

27. In Chandra Prakash and others v. State of U.P.

and another28, the Constitution Bench referred to

the view expressed in Raghubir Singh’s case and

Parija’s case and opined that in Parija’s case it

has been held that judicial discipline and propriety

demanded a Bench of two learned Judges to follow

the decision of a Bench of three learned Judges.

27 (2002) 1 SCC 1 28 (2002) 4 SCC 234

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28. Recently, in Rattiram and others v. State of

Madhya Pradesh29, the three-Judge Bench, referring

to the decision in Indian Oil Corporation Ltd. v.

Municipal Corporation and another30 wherein a

two-Judge Bench had the occasion to deal with the

concept of precedent, stated as follows: -

“27. In Indian Oil Corpn. Ltd. v. Municipal Corpn. the Division Bench of the High Court had come to the conclusion that Municipal Corpn., Indore v. Ratnaprabha31 was not a binding precedent in view of the later decisions of the co-equal Bench of this Court in Dewan Daulat Rai Kapoor v. New Delhi Municipal Committee32 and Balbir Singh v. MCD33. It is worth noting that the Division Bench of the High Court proceeded that the decision in Ratnaprabha was no longer good law and binding on it. The matter was referred to the Full Bench which overruled the decision passed by the Division Bench. When the matter travelled to this Court, it observed thus: (Indian Oil Corpn. Ltd. case, SCC p. 100, para 8)

“8. … The Division Bench of the High Court in Municipal Corpn., Indore v. Ratnaprabha Dhanda34 was clearly in error in taking the view that the decision of this Court in Ratnaprabha was not binding on it. In doing so, the Division Bench of the High Court did

29 (2012) 4 SCC 516 30 AIR 1995 SC 1480 31 (1976) 4 SCC 622 32 (1980) 1 SCC 685 33 (1985) 1 SCC 167 34 1989 MPLJ 20

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something which even a later co- equal Bench of this Court did not and could not do.”

29. Regard being had to the principles pertaining to

binding precedent, there is no trace of doubt that the

principle laid down in Mohd. Sukur Ali (supra) by

the learned Judges that the court should not decide a

criminal case in the absence of the counsel of the

accused as an accused in a criminal case should not

suffer for the fault of his counsel and the court

should, in such a situation, must appoint another

counsel as amicus curiae to defend the accused and

further if the counsel does not appear deliberately,

even then the court should not decide the appeal on

merit is not in accord with the pronouncement by the

larger Bench in Bani Singh (supra). It, in fact, is in

direct conflict with the ratio laid down in Bani Singh

(supra). As far as the observation to the effect that

the court should have appointed amicus curiae is in a

different realm. It is one thing to say that the court

should have appointed an amicus curiae and it is

another thing to say that the court cannot decide a

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criminal appeal in the absence of a counsel for the

accused and that too even if he deliberately does not

appear or shows a negligent attitude in putting his

appearance to argue the matter. With great respect,

we are disposed to think, had the decision in Bani

Singh (supra) been brought to the notice of the

learned Judges, the view would have been different.

30. Presently, we shall proceed to deal with the concept

of per incuriam. In A.R. Antulay v. R.S. Nayak35,

Sabyasachi Mukharji, J. (as His Lordship then was),

while dealing with the said concept, had observed

thus: -

“42. … ‘Per incuriam’ are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.”

31. Again, in the said decision, at a later stage, the Court

observed: -

35 (1988) 2 SCC 602

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“47. ... It is a settled rule that if a decision has been given per incuriam the court can ignore it.”

32. In Punjab Land Development & Reclamation

Corpn. Ltd. v. Labour Court36, another Constitution

Bench, while dealing with the issue of per incuriam,

opined as under:

“40. The Latin expression ‘per incuriam’ means through inadvertence. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court.”

33. In State of U.P. v. Synthetics and Chemicals

Ltd.37, a two-Judge Bench adverted in detail to the

aspect of per incuriam and proceeded to highlight as

follows:

“40. ‘Incuria’ literally means ‘carelessness’. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The ‘quotable in law’ is avoided and ignored if it is rendered, ‘in ignoratium of a statute or other binding authority’. (Young v. Bristol Aeroplane Co. Ltd.38) Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the

36 (1990) 3 SCC 682 37 (1991) 4 SCC 139 38 (1944) 2 All ER 293 (CA)

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Constitution which embodies the doctrine of precedents as a matter of law.”

34. In Siddharam Satlingappa Mhetre v. State of

Maharashtra39, while addressing the issue of per

incuriam, a two-Judge Bench, after referring to the

dictum in Bristol Aeroplane Co. Ltd. (supra) and

certain passages from Halsbury’s Laws of England

and Raghubir Singh (supra), has stated thus:

“138. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co- equal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments mentioned in paras 124 and 125 are by two or three Judges of this Court. These judgments have clearly ignored the Constitution Bench judgment of this Court in Sibbia case40 which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of the Code of Criminal Procedure. Consequently, the judgments mentioned in paras 124 and 125 of this judgment are per incuriam.”

35. In Government of A.P. and another v. B.

Satyanarayana Rao (dead) by LRs and others41

39 (2011) 1 SCC 694 40 (1980) 2 SCC 565 41 (2000) 4 SCC 262

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this Court has observed that the rule of per incuriam

can be applied where a court omits to consider a

binding precedent of the same court or the superior

court rendered on the same issue or where a court

omits to consider any statute while deciding that

issue.

36. In view of the aforesaid annunciation of law, it can

safely be concluded that the dictum in Mohd. Sukur

Ali (supra) to the effect that the court cannot decide

a criminal appeal in the absence of counsel for the

accused and that too if the counsel does not appear

deliberately or shows negligence in appearing, being

contrary to the ratio laid down by the larger Bench in

Bani Singh (supra), is per incuriam. We may hasten

to clarify that barring the said aspect, we do not

intend to say anything on the said judgment as far as

engagement of amicus curiae or the decision

rendered regard being had to the obtaining factual

matrix therein or the role of the Bar Association or

the lawyers. Thus, the contention of the learned

counsel for the appellant that the High Court should

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not have decided the appeal on its merits without the

presence of the counsel does not deserve

acceptance. That apart, it is noticeable that after the

judgment was dictated in open court, the counsel

appeared and he was allowed to put forth his

submissions and the same have been dealt with.

37. At this juncture, we are obligated to state that in

certain cases this Court had remitted the matters to

the High Court for fresh hearing and in certain cases

the burden has been taken by this Court. If we allow

ourselves to say so, it depends upon the facts of the

each case. In the present case, as we perceive, the

High Court has dealt with all the contentions raised in

the memorandum of appeal and heard the learned

counsel at a later stage and, hence, we think it

apposite to advert to the contentions raised by the

learned counsel for the appellant as regards the

merits of the case.

38. On merits it has been argued by Mr. Bhat that the

essential ingredients of Section 7 of the Act have not

established inasmuch as no official work was pending

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with the accused-appellant and the allotment work

was done by the Manager and, hence, he could not

have shown any official favour. It has also been

contended that mere recovery of bribed money from

the possession of the accused is not sufficient to

establish the offence and it is the duty of the

prosecution to prove the demand and acceptance of

money as illegal gratification but the same has not

been proven at all.

39. To appreciate the said submission, we have carefully

perused the judgment of the learned trial Judge as

well as that of the High Court and the evidence

brought on record. On a perusal of the Mahazar

(Exht.-4), it is evident that a sum of Rs.5,000/- was

recovered from the accused. That apart, the factum

of recovery has really not been disputed. The plea

put forth by the defence is that the accused had

borrowed Rs.20,000/- from the complainant and to

pay it back he had availed a loan from DW-1, an auto

driver. In support of the said stand on behalf of the

accused, DW-1, an auto-driver, has been examined,

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who has deposed that the accused needed

Rs.20,000/- to pay back a loan to PW-1 and he had

given the said sum to him in his house and,

thereafter, had accompanied the accused to his

office and PW-1 was taken to a side by the accused

where he gave the money to him. The said witness

has stated that he had not known for what purpose

the accused had given the money to PW-1. He had

not even produced any document in support of his

deposition that he had given Rs.20,000/- to the

accused as a loan. It is interesting to note that the

said witness, to make his story credible, has also

gone to the extent of stating that he had

accompanied the accused to his office where the

accused took PW-1 to one side of the room and paid

the money. The testimony of this witness has to be

discarded as it is obvious that he has put forth a

concocted and totally improbable version. The

learned Sessions Judge as well as the High Court is

correct in holding that the testimony of this witness

does not inspire confidence and we accept the same.

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40. The next limb of the said submission is that the

accused was not in-charge of allotment of work and,

hence, could not have granted any benefit to the

complainant and the allegation of the prosecution

that he had shown an official favour to the

complainant has no legs to stand upon. On a

scrutiny of the testimony of PW-2, it is demonstrable

that there had been demand of money from PW-2

and acceptance of the same. As far as the official

favour is concerned, though the allotment of work

was done by the Manager, it has come out in the

evidence of PW-4 that the immediate assignment of

the loads of contractors was the responsibility of the

accused. He had the responsibility for assignment of

loads and in that connection, he had demanded the

bribe. It has also come out from Exht. P-11 that the

responsibility of the accused was assignment or

identification of lorries. In view of the said evidence,

it is difficult to accept the plea that he had no

responsibility and, hence, he could not have granted

any favour. It is well settled in law that demand and

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acceptance of the amount as illegal gratification is

sine qua non for constitution of an offence under the

Act and it is obligatory on the part of the prosecution

to establish that there was an illegal offer of bribe

and acceptance thereof.

41. Keeping in view that the demand and acceptance of

the amount as illegal gratification is a condition

precedent for constituting an offence under the Act,

it is to be noted that there is a statutory presumption

under Section 20 of the Act which can be dislodged

by the accused by bringing on record some evidence,

either direct or circumstantial, that money was

accepted other than for the motive or the reward as

stipulated under Section 7 of the Act. When some

explanation is offered, the court is obliged to

consider the explanation under Section 20 of the Act

and the consideration of the explanation has to be on

the touchstone of preponderance of probability. It is

not to be proven beyond all reasonable doubt. In the

case at hand, we are disposed to think that the

explanation offered by the accused does not deserve

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any acceptance and, accordingly, we find that the

finding recorded on that score by the learned trial

Judge and the stamp of approval given to the same

by the High Court cannot be faulted.

42. In view of the aforesaid analysis, we find that the

prosecution has established the factum of recovery

and has also proven the demand and acceptance of

the amount as illegal gratification. Therefore, the

conviction recorded against the accused is

unimpeachable. The said conclusion is in

consonance with pronouncement of this Court in

State of Maharahstra v. Dnyaneshwar Laxaman

Rao Wankhede42.

43. The alternative submission of the learned counsel for

the appellant relates to sentence. It is his submission

that the appellant has been suffering from number of

ailments and there has been immense tragedy in his

family life and, hence, the sentence should be

reduced to the period already undergone. As is

evincible, the appellant has been convicted under

42 (2009) 15 SCC 200

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Section 7 of the Act and sentenced to undergo

rigorous imprisonment for a period of four years and

to pay a fine of Rs.15,000/- and on failure to pay fine,

to suffer further rigorous imprisonment for three

months. Section 7 of the Act provides a punishment

with imprisonment which shall not be less than six

months which may extend to five years and liability

to pay fine. Section 13(2) stipulates that a public

servant who commits criminal misconduct shall be

punishable with imprisonment for a term which shall

not be less than one year but which may extend to

seven years and shall also be liable to pay fine. On

reading of both the provisions, it is clear that

minimum sentence is provided for the aforesaid

offence. There is a purpose behind providing the

minimum sentence. It has been held in Narendra

Champaklal Trivedi v. State of Gujarat43 that

where the minimum sentence is provided, it is not

appropriate to exercise jurisdiction under Article 142

of the Constitution of India to reduce the sentence on

the ground of any mitigating factor as that would 43 (2012) 7 SCC 80

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tantamount to supplanting the statutory mandate

and further it would amount to ignoring the

substantive statutory provision that prescribes

minimum sentence for a criminal act relating to

demand and acceptance of bribe.

44. In view of the aforesaid analysis, we are unable to

accept the submission of the learned counsel for the

appellant to reduce the period of sentence to the

period already undergone in custody. However,

regard being had to the facts and circumstances of

the case, the age of the accused and the ailments he

has been suffering, which has been highlighted

before us, we reduce the sentence of imprisonment

imposed under Section 13(1)(d) read with Section

13(2) of the Act to one year and maintain the

sentence under Section 7 of the Act. The imposition

of sentence of fine on both the scores remains

undisturbed.

45. With the aforesaid modification in the sentence, the

appeal stands disposed of.

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……………………………….J. [K. S. Radhakrishnan]

……………………………….J. [Dipak Misra]

New Delhi; March 01, 2013

39

K.S.PANDURANGA Vs STATE OF KARNATAKA

K.S.PANDURANGA Vs STATE OF KARNATAKA