Vs. Govt. of Karnataka  Insc 108 (29 January 2008)
Sema & Markandey Katju
out of Special Leave Petition (Crl.) NO. 1719 OF 2006) Delivered by: H.K. SEMA,
J MARKANDEY KATJU, J H.K.SEMA,J.
Heard learned counsel for the parties.
This appeal is directed against the judgment and order dated 28th March, 2006
passed by the High Court of Karnataka at Bangalore in Criminal Petition No.
1535 of 2006 filed under Section 482 of the Code of Criminal Procedure with a
prayer to quash cognizance of offence under Sections 25 and 30(3) of the
Karnataka Shops and Commercial Establishments Act, 1961 (in short the
Act) by Metropolitan Magistrate Traffic Court III.
view of the order that we propose to pass, it may not be necessary to recite
the entire facts leading to the filing of the present appeal. Suffice it to say
that an unfortunate incident had occurred on 13th December, 2005 in which late Smt. Pratibha Srikant Murthy was
stated to have been murdered on her way to work from her residence. Pursuant to
the aforesaid incident a complaint was filed on 27th December, 2005 against the appellant alleging violation of Sections
25 and 30(3) of the Act before the Metropolitan Magistrate. On 30th December, 2005, the Metropolitan Magistrate took
cognizance of the offences under aforesaid sections of the Act.
On 23rd March, 2006, a petition under Section 482 of
the Code of Criminal Procedure for quashing of the complaint and cognizance was
filed before the High Court. The High Court, by its impugned order dated 28th March, 2006, dismissed the petition. Hence, the
present appeal by special leave.
The High Court, by its impugned order, has altered the cognizance taken by the
Magistrate under Section 25 read with Section 30(3) to that one under Section
25 read with Section 30(1) of the Act. The High Court was of the view that
taking cognizance against the appellant cannot be found fault with and
dismissed the petition.
is noticed, therefore, that petition under Section 482 was filed at the
threshold for quashing of the cognizance taken by the Magistrate.
Mr. K. K. Venugopal, learned Senior counsel for the appellant has addressed us
on merits of the case. He would contend that the appellant is a Managing Director
and occupying the position of management and, therefore, he would be entitled
for exemption under Section 3(h) of the Act.
would further contend that the appellant, being Managing Director of the
company, would not be liable for prosecution under Section 25 read with Section
30(1) of the Act.
Per contra, Ms Anitha Shenoy, learned counsel appearing on behalf of the
respondent, contended that Chapter VIII of the Act deals with a penal
provision. She would contend that the language, Whoever contravenes
employed in Section 30 of the Act would include the Managing Director.
this stage we are not prepared to enter into the merits of the case on the
basis of contentions urged by the respective counsel. Here are our reasons:
In a catena of decisions this Court has deprecated the interference by the High
Court in exercise of its inherent powers under Section 482 of the Code in a
routine manner. It has been consistently held that the power under Section 482
must be exercised sparingly, with circumspection and in rarest of rare cases.
Exercise of inherent power under Section 482 of the Code of Criminal Procedure
is not the rule but it is an exception. The exception is applied only when it
is brought to the notice of the Court that grave miscarriage of justice would
be committed if the trial is allowed to proceed where the accused would be
harassed unnecessarily if the trial is allowed to linger when prima facie it
appears to Court that the trial would likely to be ended in acquittal. In other
words, the inherent power of the Court under Section 482 of the Code of
Criminal Procedure can be invoked by the High Court either to prevent abuse of
process of any Court or otherwise to secure the ends of justice.
This Court, in a catena of decisions, consistently gave a note of caution that
inherent power of quashing a criminal proceeding should be exercised very
sparingly and with circumspection and that too in the rarest of rare cases.
Court also held that the High Court will not be justified in embarking upon an
inquiry as to the reliability or genuineness or otherwise of the allegations
made in the F.I.R. or the complaint and that the extra-ordinary or inherent
powers do not confer an arbitrary jurisdiction on the court to act according to
its whims and caprice.
We now refer to a few decisions of this Court deprecating the exercise of extra
ordinary or inherent powers by the High Court according to its whims and
In State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554
this Court pointed out at SCC p. 574:
High Court in exercise of the extraordinary jurisdiction committed a grave
error by making observations on seriously disputed questions of facts taking
its cue from affidavits which in such a situation would hardly provide any
opinion the High Court was clearly in error in giving the direction virtually
amounting to a mandamus to close the case before the investigation is complete.
We say no more. (14) In Hazari Lal Gupta v. Rameshwar Prasad (1972) 1 SCC
452 this Court at SCC p. 455 pointed out:
exercising jurisdiction under Section 561-A of the Criminal Procedure Code, the
High Court can quash proceedings if there is no legal evidence or if there is
any impediment to the institution or continuance of proceedings but the High
Court does not ordinarily inquire as to whether the evidence is reliable
or not. Where again, investigation into the circumstances of an alleged
cognizable offence is carried on under the provisions of the Criminal Procedure
Code, the High Court does not interfere with such investigation because it
would then be the impeding investigation and jurisdiction of statutory
authorities to exercise power in accordance with the provisions of the Criminal
In Jehan Singh v. Delhi Administration (1974) 4 SCC 522 the application filed
by the accused under Section 561-A of the old Code for quashing the
investigation was dismissed as being premature and incompetent on the finding
that prima facie, the allegations in the FIR, if assumed to be correct,
constitute a cognizable offence.
In Kurukshetra University v. State of Haryana (1977) 4 SCC 451, this Court pointed out:
surprises us in the extreme that the High Court thought that in the exercise of
its inherent powers under Section 482 of the Code of Criminal Procedure, it
could quash a first information report.
police had not even commenced investigation into the complaint filed by the
Warden of the University and no proceeding at all was pending in any court in
pursuance of the FIR. It ought to be realized that inherent powers do not
confer an arbitrary jurisdiction on the High Court to act according to whim or
caprice. That statutory power has to be exercised sparingly, with circumspection
and in the rarest of rare cases. (emphasis supplied)
In State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 this Court held that the
jurisdiction under Section 482 of the Code has to be exercised sparingly and
with circumspection and has given the working that in exercising that
jurisdiction, the High Court should not embark upon an enquiry whether the
allegations in the complaint are likely to be established by evidence or not.
In State of Haryana & ors (appellant) v. Bhajan Lal
& ors. (respondents) 1992 Supp. (1) SCC 335, this Court after referring to
various decisions of this Court, enumerated various categories of cases by way
of illustration wherein the inherent power under Section 482 of the Code should
be exercised by the High Court. They are:
Where the allegations made in the first information report or the complaint,
even if they are taken at their face value and accepted in their entirety do
not prima facie constitute any offence or make out a case against the accused.
Where the allegations in the first information report and other materials, if
any, accompanying the FIR do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of the Code except under
an order of a Magistrate within the purview of Section 155(2) of the Code.
Where the uncontroverted allegations made in the FIR or complaint and the
evidence collected in support of the same do not disclose the commission of any
offence and make out a case against the accused.
Where, the allegations in the FIR do not constitute a cognizable offence but
constitute only a non-cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as contemplated under Section
155(2) of the Code.
Where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding against the accused.
Where there is an express legal bar engrafted in any of the provisions of the
Code or the concerned Act (under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party.
Where a criminal proceeding is manifestly attended with mala fide and/or where
the proceeding is maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due to private and
We may observe here that despite this Courts consistently held in catena
of decisions that inherent power of the High Court should not be exercised
according to whims and caprice and it has to be exercised sparingly, with
circumspection and in the rarest of rare cases, we often come across the High
Court exercising the inherent power under Section 482 of the Code of Criminal
Procedure in a routine manner at its whims and caprice setting at naught the
cognizance taken and the FIR lodged at the threshold committing grave
miscarriage of justice. While it is true that so long as the inherent power of
Section 482 is in the Statute Book, exercise of such power is not impermissible
but it must be noted that such power has to be exercised sparingly with
circumspection and in the rarest of rare cases, the sole aim of which is to
secure the ends of justice. The power under Section 482 is not intended to
scuttle justice at the threshold.
The rulings cited by Mr. K.K. Venugopal East India Commercial Co. Ltd.,
Calcutta & Anr. V. The Collector of Customs, Calcutta 1963 (3) SCR 338; T. Prem Sagar v. The Standard Vacuum Oil
Company Madras & Ors. 1964 (5) SCR 1030; Boothalinga
Agencies v. V.T.C. Poriaswami Nadar 1969 (1) SCR 65; and S.M.S. Pharmaceuticals
Ltd. V. Neeta Bhalla & Anr. (2005) 8 SCC 89 are not applicable in the facts
of this case at this stage in view of our view above.
In the result, there is no infirmity in the order passed by the High Court
warranting our interference in exercise of our power under Article 136 of the
appeal is, accordingly, dismissed.
We clarify that we do not express any opinion on the merits of the case. The
trial court shall decide the matter expeditiously uninfluenced by any
observations made by this Court or the High Court. The trial court shall decide
the maintainability of the complaint at the time of consideration of the
charge. We further make it clear that it is open to the parties to urge all the
contentions as available under the law, including the maintainability of the
complaint before the trial judge at the time of consideration of this charge.
With these observations and directions, the appeal is dismissed. Markandey Katju,
have perused the judgment of my learned brother Honble H.K. Sema, J. in
respectfully agree with his conclusion that the appeal be dismissed but only
because of the observations in his judgment that we are not expressing any
opinion on the merits of the case. However, I think it is necessary to give my
separate concurrent judgment in this case.
appellant before us, Mr. Som Mittal, is the Managing Director of Hewlett
Packard Global Soft Ltd. He filed a petition under Section 482, Cr.P.C. before
the Karnataka High Court challenging the order dated 30.12.2003 passed by the
Metropolitan Magistrate Traffic Court III, Bangalore, taking cognizance of an
offence under Section 25 of the Karnataka Shops and Commercial Establishments
Act, 1961 (in short `the Act) read with Section 30(3) of the same and also
the conditions imposed by the Karnataka Government in its order dated 9.2.2005.
It may be mentioned that cognizance was taken on a complaint filed by the
respondent through its Senior Labour Inspector, 18th Circle, Bangalore.
Section 25 as amended by Act No.14 of 2002 reads as follows :
Prohibition of employment of women and young persons during night: No woman, or
a young person, shall be required or allowed to work whether as an employee or
otherwise in any establishment during nights.
that the State Government may, by notification exempt any establishment of
Information Technology or Information Technology enabled service from the provisions
of this section relating to, employment of women during night subject to the
condition that the establishment provides facilities of transportation and
security to such women employees and subject to any other condition as may be
specified in the notification.
may be noted from the above provision that while the main part of Section 25 is
prohibition of employment of women and young persons in a shop or commercial
establishment during night, the proviso enables the State Government to exempt
any establishment of Information Technology from the provisions of the section
subject to the condition that the establishment provides facility for
transportation and security to the woman employees.
Deputy Labour Commissioner, Region 2, Bangalore, in exercise of the power under the proviso to Section 25 issued an
office order in terms of Section 25 read with Rule 24(b) of the Karnataka Shops
and Commercial Establishments Rules 1963 granting exemption. Condition No.2 of
the said Order stated :
facilities from the residence to workplace and back shall be provided free of
cost and with adequate security.
appears that on 13.12.2005 at about 2 a.m. a woman employee of the Company of which the appellant was Managing
Director was traveling from her house to the workplace situated in Electronic City, Bangalore.
on the way the vehicle driver took the vehicle to a secluded place and raped
and killed the said woman employee. This fact finds reference in the letter of
the Bangalore City Police Commissioner dated 26.12.2005 addressed to the Labour
Commissioner, and in the said letter it is stated that adequate security had
not been provided to the said woman employee during her travel from her home to
the workplace. It is on the basis of this letter that the complaint was filed
on the basis of which cognizance was taken by the learned Magistrate.
K.K. Venugopal, learned counsel for the appellant, has invited our attention to
Section 3(1)(h) of the Act which states :
Nothing in this Act shall apply to (h) person occupying positions of
management in any establishment.
agree with Shri Venugopal that the Managing Director is surely a person
occupying a position of management in the establishment and hence Section 3(1)(h)
is clearly attracted to the facts of this case.
However, learned counsel for the State Government has relied on Section 2(h) of
the Act which states :
Employer means a person having charge of or owning or having ultimate
control over the affairs of an establishment and includes members of the family
of an employer, a manager, agent or other person acting in the general
management or control of an establishment;
Learned counsel for the respondent submitted that Section 30(1) of the Act
states that Whoever contravenes any of the provisions of Sections 4, 5 -
-----, 25 and 39, shall, on conviction, be punished with fine. She
submitted that the word whoever in section 30 is broad enough to
include the Managing Director also.
my mind, there seems to be some apparent conflict between section 30 and
section 3(1)(h) of the Act since while the latter provision states that a
person in a position of management is outside the purview of the Act, it is
contended by counsel for the respondent that the former provision includes a
person in management also since the word whoever is very wide.
Since section 30 is also part of the Act, hence prima facie it seems that a
Managing Director does not come within the purview of the Act in view of
section 3(1)(h). It prima facie seems that only persons not in a position of
management will come within the purview of the Act, and hence they alone can be
penalized under Section 30. If persons in a position of management are also
intended to be penalized then that will require an amendment to the Act, in
particular Section 3(1)(h) thereof. The Court cannot amend an Act of the
legislature, and cannot fill up a casus omissus.
However, I am not expressing any final opinion on the merits of the matter, and
it is left open for the court concerned to interpret the various provisions of
While I agree with my learned brother, Honble Sema J. that the power under
section 482 Cr.P.C. is to be exercised sparingly, I cannot agree with my
learned brother that it should be exercised in the rarest of the rare
The expression rarest of the rare cases was used in connection with
Section 302 IPC to hold that death penalty should only be imposed in rarest of
rare cases vide Constitution Bench decision of this Court in Bachan Singh vs.
State of Punjab (vide para 207) AIR 1980 SC 898. In my opinion, this expression
cannot be extended to a petition under Section 482 Cr.P.C.. Though I agree with
my learned brother Honble Sema J. that the power under Section 482 Cr.P.C.
should be used sparingly, yet there may be occasions where in the interest of
justice the power should be exercised.
this connection, I would also like to refer to the situation prevailing in the
State of Uttar Pradesh where due to deletion of the provision for anticipatory
bail under Section 438 Cr.P.C. by Section 9 of the U.P. Act 16 of 1976, huge
difficulties have been created both for the public as well as for the Allahabad
may be noted that in U.P. such provision for anticipatory bail has been deleted
while it continues to exist in all other States in India, even in terrorist affected States.
The result is that thousands of petitions under Section 482 are filed every
year in Allahabad High Court praying for stay of arrest or for quashing the
FIR, because in the absence of the provision of anticipatory bail many persons
who are innocent cannot get anticipatory bail even though the FIR filed against
them may be frivolous and/or false. Even if such persons get regular bail under
Section 439, before that they will have to go to jail, and thus their
reputation in society may be irreparably tarnished.
has been held by this Court in Joginder Kumar vs. State of U.P. and others AIR 1994 SC 1349 (vide para 24) that
No arrest can be made because it is lawful for the Police Officer to do
so. The existence of the power to arrest is one thing and the justification for
the exercise of it is quite another. The Police Officer must be able to justify
the arrest apart from his power to do so. Arrest and detention in police lock
up of a person can cause incalculable harm to the reputation and self esteem of
a person. No arrest can be made in a routine manner on a mere allegation of
commission of an offence made against a person. It would be prudent for a
Police Officer in the interest of protection of the constitutional right of a
citizen and perhaps in his own interest that no arrest should be made without a
reasonable satisfaction reached after some investigation as to the genuineness
and bona fides of a complaint and a reasonable belief both as to the
persons complicity and even so as to the need to effect arrest. Denying a
person of his liberty is a serious matter. The recommendation of the Police Commissioner
merely reflects the constitutional concomitants of the fundamental right to
personal liberty and freedom.
person is not liable to arrest merely on the suspicion of complicity in an
offence. There must be a reasonable justification in the opinion of the officer
effecting the arrest that such arrest is necessary and justified. Except in
heinous offences, an arrest must be avoided if a police officer issues notice
to a person to attend the Station House and not to leave Station without
permission would do.
para 13 of the same judgment this Court has also referred to the Third Report
of the National Police Commission which stated that by and large nearly 60% of
the arrests in the country were unnecessary or unjustified. Also, 43.2 % of the
expenditure in jails was over such prisoners only who need not have been
arrested at all.
Despite this categorical judgment of the Supreme Court it appears that the
police is not at all implementing it. What invariably happens is that whenever
an FIR of a cognizable offence is lodged the police immediately goes to arrest
the accused person. This is clear violation of the aforesaid judgment of the
may be noted that Section 2(c) Cr.P.C. defines a cognizable offence as an
offence in which a police officer may arrest without warrant. Similarly Section
41 Cr.P.C. states a police officer may arrest a person involved in a cognizable
offence. The use of the word `may shows that a police officer is not bound
to arrest even in a case of a cognizable offence. When he should arrest and
when not is clarified in Joginder Kumars case (supra).
Again in Section 157(1) Cr.P.C. it is mentioned that a police officer shall
investigate a case relating to a cognizable offence, and if necessary take
measures for the arrest of the offender. This again makes it clear that arrest
is not a must in every case of a cognizable offence.
Because of absence of the provision for anticipatory bail in U.P. thousands of
writ petitions and Section 482 Cr.P.C. applications are being filed in the Allahabad
High Court praying for stay of the petitioners arrest and/or quashing the
FIR. This is unnecessarily increasing the work load of the High Court and
adding to the arrears, apart from the hardship to the public, and overcrowding
The right to liberty under Article 21 of the Constitution is a valuable right,
and hence should not be lightly interfered with. It was won by the people of Europe and America after tremendous historical struggles and sacrifices. One
is reminded of Charles Dickens novel `A Tale of Two Cities in which
Dr. Manette was incarcerated in the Bastille for 18 years on a mere lettre de
cachet of a French aristocrat, although he was innocent.
Ghani vs. Jones (1970) 1 Q.B. 693 (709) Lord Denning observed : A
mans liberty of movement is regarded so highly by the Law of England that
it is not to be hindered or prevented except on the surest grounds. The
above observation has been quoted with approval by a Constitution Bench decision
of this Court in Maneka Gandhi vs. Union of India AIR 1978 SC 597 (vide para
Despite this clear enunciation of the law many people are arrested and sent to
the jail on the basis of false and/or frivolous FIRs.
my opinion the problem will be obviated by restoring the provision for
anticipatory bail which was contained in Section 438 Cr.P.C. but was deleted in
U.P. by Section 9 of U.P. Act 16 of 1976.
is surprising that the provision for anticipatory bail has been deleted in U.P
although it exists in all other States in India, even in terrorist affected States. I do not understand why this
provision should not exist in U.P. also.
pointed out in Balchand Jain vs. State of Madhya Pradesh AIR 1977 SC 366, the
provision for anticipatory bail was included in the Cr.P.C. of 1973 in
pursuance of the Forty First Report of the Law Commission which observed:-
The necessity for granting anticipatory bail arises mainly because
sometimes influential persons try to implicate their rivals in false cases for
the purpose of disgracing them or for other purposes by getting them detained
in jail for some days. In recent times, with the accentuation of political
rivalry, this tendency is showing signs of steady increase. Apart from false cases,
where there are reasonable grounds for holding that a person accused of an
offence is not likely to abscond, or otherwise misuse his liberty while on
bail, there seems no justification to require him first to submit to custody
and remain in prison for some days and then apply for bail. 31. Thus the
provision for anticipatory bail was introduced in the Cr.P.C.
it was realized by Parliament in its wisdom that false and frivolous cases are
often filed against some persons and such persons have to go to jail because
even if the First Information Report is false and frivolous a person has to
obtain bail, and for that he has to first surrender before the learned
Magistrate, and his bail application is heard only after several days (usually
a week or two) after giving notice to the State. During this period the
applicant has to go to jail. Hence even if such person subsequently obtains
bail his reputation may be irreparably tarnished, as held by the Supreme Court
in Joginder Kumars case (supra). The reputation of a person is a valuable
asset for him just as in law the good will of a firm is an intangible asset. In
Gita Lord Krishna said to Arjun: lEHkkforL; pkdhfrZej.kknfrfjP;rss For a
self-respecting man, death is preferable to dishonour (Gita Chapter 2, Shloka
doubt anticipatory bail is not to be granted as a matter of course by the Court
but only in accordance with the principles laid down by the Supreme Court in Gurbaksh
Singh vs. State of Punjab
AIR 1980 SC 1632.
we are of the view that there must be a provision for anticipatory bail in U.P.
for the reason already mentioned above.
Experience has shown that the absence of the provision for anticipatory bail
has been causing great injustice and hardship to the citizens of U.P. For
instance, often false FIRs are filed e.g. under Section 498A IPC, Section 3/4
Dowry Prohibition Act etc. Often aged grandmothers, uncles, aunts, unmarried
sisters etc. are implicated in such cases, even though they may have nothing to
do with the offence. Sometimes unmarried girls have to go to jail, and this may
affect their chances of marriage. As already observed by me above, this is in
violation of the decision of this Court in Joginder Kumars case (supra),
and the difficulty can be overcome by restoring the provision for anticipatory
Moreover, the Allahabad High Court is already over-burdened with heavy arrears
and overloaded with work. This load is increasing daily due to the absence of
the provision for anticipatory bail. In the absence of such provision whenever
an FIR is filed the accused person files a writ petition or application under
Section 482 Cr.P.C. and this has resulted in an unmanageable burden on this
Court. Also jails in U.P. are overcrowded.
The Allahabad High Court had on several occasions requested the State
Government to issue an Ordinance immediately to restore the provision for
anticipatory bail, (e.g. in Vijay Kumar Verma vs. State of U.P., 2002 Cr.L.J.
4561) but all its requests seem to have fallen on deaf ears.
seems that there is an impression in some quarters that if the provision for
anticipatory bail is restored crimes will increase. In my opinion this is a
specious argument, since it has not made much difference to the crime position
in the States where the provision for anticipatory bail exists, even in
terrorist affected States. No doubt the recommendation of a Court is not
binding on the State Government/State Legislature but still it should be
seriously considered, and not simply ignored. The Court usually makes a
recommendation when it feels that the public is facing some hardship. Such
recommendation should, therefore, be given respect and serious consideration.
therefore, make a strong recommendation to the U.P. Government to immediately
issue an Ordinance to restore the provision for anticipatory bail by repealing
Section 9 of U.P. Act No. 16 of 1976, and empowering the Allahabad High Court
as well as the Sessions Courts in U.P. to grant anticipatory bail.
this connection I may also refer to the decision of the Seven Judge Full Bench
of Allahabad High Court in Smt. Amarawati and another vs. State of U.P. (2005 Crl.
L.J. 755) in which the Full Bench has mentioned that the Sessions Judge while
considering a bail application under Section 439 Cr.P.C. can grant interim bail
till the final disposal of the bail application subsequently. This will enable
innocent persons to avoid going to jail pending consideration of their bail
am informed that despite this Seven Judge Full Bench judgment which has clearly
mentioned that a Sessions Judge can grant interim bail, the Session Courts in
U.P. are ignoring the said judgment and are not granting interim bail pending
disposal of the final bail application even in appropriate cases. This is
wholly improper. Decisions of this Court and of the High Court must be
respected and carried out by the sub-ordinate courts punctually and faithfully.
It is, therefore, directed that Amarawatis case (supra) must be
implemented in letter and spirit by the Sessions Courts in U.P. and in this
connection the Registrar General of Allahabad High Court will circulate letters
to all the District Judges in U.P. along with a copy of this judgment to ensure
faithful compliance of the decision of the Full Bench decision of the High
Court in Amarawatis case (supra).
The Secretary General of this Court shall send a copy of my judgment to the
Chief Secretary, Home Secretary and Law Secretary of U.P. as well as to the
Registrar General of Allahabad High Court and also to the President/Secretary
of Allahabad Bar Association and the Allahabad High Court Advocates
Association as well as Oudh Bar Association, Lucknow forthwith. A copy shall
also be sent to the Chief Secretary, Home Secretary and Law Secretary of all
State Governments/Union Territories in India who shall direct all officials to strictly comply with the judgment of
this Court in Joginder Kumars case (supra).