K.S. PANDURANGAversusSTATE OF KARNATAKA

                     [2013] 4. S.C.R. 155


                     K.S. PANDURANGA                                 A
                             v.
                   STATE OF KARNATAKA
             (Criminal Appeal No. 373 of 2013)

                       MARCH 01, 2013
                                                                     B
    [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

      Prevention of Corruption Act, 1988 - s. 7, s.13(1)(d) rlw
s. 13(2) and s. 20 - Conviction of accused-appellant u(s. 7 and
u/s.13(1)(d) rlw s.13(2) - Justification of - Held: On facts,        c
justified - Demand and acceptance of illegal gratification is
 a condition precedent for constituting an offence under the Act
- Statutory presumption uls.20 can be dislodged by the
 accused by bringing on record some evidence, either direct
 or circumstantial, that money was accepted other than for the       o
motive or the reward - In the case at hand, explanation offered
 by the appellant does not deserve any acceptance -
 Considering the nature of his work, it is ·evident that appellant
 was in a responsible position and capable of granting official
 favour to the complainant - Defence story of appellant              E
 borrowing money from DW1 and repaying Joan to the
 complainant in presence of DW1 concocted and totally
 improbable - Prosecution established the factum of recovery
 from the appellant and also proved the demand and
 acceptance of illegal gratification by appellant as motive/         F
 reward for showing official favour to the complainant.

     Prevention of Corruption Act, 1988 - s. 20 - Statutory
presumption under - Can be dislodged by the accused by
bringing on record some evidence - Duty of the Court in this
regard - Held: When some explanation is offered, the court           G
is obliged to consider the explanation uls. 20 - Consideration
of the explanation has to be on the touchstone of
preponderance of probability - It is not to be proven beyond
all reasonable doubt.
                             155                                     H
    156     SUPREME COURT REPORTS              [2013] 4 S.C.R.


A      Appeal - Appeal against conviction - Dismissed -
  Dismissal challenged - Plea of accused-appellant that the
  appellate Court (High Court) should not have decided the
  appeal on merits in absence of the appellant's counsel -
  Held: Not ·tenable :.... The court deciding the criminal appeal
8 is not bound to adjourn the matter if both the appellant or his
  counseV lawyer are absent though the court may, as a matter
  of prudence or indulgence, do so - It can dispose of the
  appeal after perusing the record and judgment of the trial
  court - It cannot be said that the ·court cannot decide a
C criminal appeal in absence of the counsel for the accused-
  appellant.

       Sentence I Sentencing - Appellant convicted and
  sentenced by courts below under provisions of the Prevention
  of Corruption Act for committing criminal act relating to
D demand and acceptance of bribe - Plea of appellant before
  Supreme Court for reduction of the period of sentence to the
  period already undergone in custody - Held: Not tenable -
  Relevant statutory provisions under the Prevention of
  Corruption Act provide for a minimum sentence - Where
E minimum sentence is provided, it is not appropriate to
  exercise jurisdiction under Article 142 of the Constitution to
  reduce the sentence on the ground of any mitigating factor -
  However, regard being had to the age and ailments of the
  accused-appellant, sentence of imprisonment u/s.13(1)(d) rl
F w s.13(2) reduced from two years (as imposed by High Court)
  to the statutory minimum sentence of one year - Prevention
  of Corruption Act, 1988 - s. 7 and s.13(1){d) rlw s.13(d) -
  Constitution of India, 1950 - Article 142.
      The prosecution case was that the accused-appellant __
G had demanded and accepted illegal gratification of
  Rs.5,000/- as motive I reward for showing official favour
  to PW1-transport operator, i.e., allotting transport loads
  and that thus, by means of corrupt and illegal means,
  abused his position and obtained a pecuniary advantage.
H
   K.S. PANDURANGA v. STATE OF KARNATAKA                157

The trial court convicted the appellant under Sections 7,       A
13(1)(d) read with Section 13(2) of the Prevention of
Corruption Act, 1988. In appeal, the High Court confirmed
the conviction.

     In the instant appeal, the conviction of the appellant     8
was challenged on merits as also on the ground that the
High Court could not have heard the appeal in absence
of the counsel for the accused-appellant and proceeded
to deliver the judgment.

    Disposing of the appeal with modification in the            C
sentence, the Court

     HELD: 1.1. In Bani Singh case, a three Judge Bench
of the Supreme Court was called upon to decide whether
the High Court was justified in dismissing the appeal filed     o
by the accused-appellants therein against the order of
conviction and sentence issued by the trial court for non-
prosecution. From the aforesaid decision, the following
principles can be culled out: (i) that the High Court cannot
dismiss an appeal for non-prosecution simpliciter               E
without examining the merits; (ii) that the court is not
bound to adjourn the matter if both the appellant or 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      F
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         G
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. [Paras 21, 22] [173-D; 175-A-D]                      H
    158       SUPREME COURT REPORTS           [2013] 4 S.C.R.


A      1.2. The two Judge Bench in Mohd. Sukur Ali case
  had not noticed the binding precedent in Bani Singh
  case. The dictum in Mohd. Sukur Ali case 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
B does not appear deliberately or shows negligence in
  appearing, being contrary to the ratio laid down by the
  larger Bench in Bani Singh, is per incuriam. The
  contention of the appellant that the High Court should
  not have decided the appeal on its merits without the
c 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. [Paras 23, 36] [175-G; 182-B-C, 0-E]
D       Bani Singh and Others v. State of U.P. AIR 1996 SC
    2439: 1996 (3) Suppl. SCR 247 and Government of A.P. and
    Another v. B. Satyanarayana Rao (dead) by LRs and Ohers
    (2000) 4 SCC 262: 2000 (2) SCR 1009 - relied on.

E         Mohd. Sukur Ali v. State of Assam (2011) 4 SCC 729:
    2011 (3) SCR 209 - held, per incuriam.

       A. S. Mohammed Rafi v. State of Tamil Nadu (2011) 1
  SCC 688: 2010 (14) SCR 792; Man Singh and Another v.
  State of Madhya Pradesh (2008) 9 SCC 542: 2008 (13) SCR
F 966; Bapu Limbaji Kamble v. State of Maharashtra (2005) 11
  SCC 413; Shyam Dea Pandey and Others v. The State of
  Bihar AIR 1971 SC 1606: 1971 (0) Suppl. SCR 133;
  Cha/Jappa Ramaswami v. State of Maharashtra AIR 1971 SC
  64: 1970 (2) SCC 426; Siddanna Apparao Patil v. State of
G Maharashtra AIR 1970 SC 977: 1970 (3) SCR 909; Govinda
  Kadtuji Kadam v. The State of Maharashtra AIR 1970 SC
  1033: 1970 (3) SCR 525; Ram Naresh Yadav and Others v.
  State of Bihar AIR 1987 SC 1500; Union of India and Another
  v. Raghubir Singh (Dead) by LRs etc. (1989) 2 SCC 754:
H 1989 (3) SCR 316; N. S. Giri v. Corporation of City of
  K.S. PANDURANGA v. STATE OF KARNATAKA                 159

Mangalore and Others (1999) 4 SCC 697: 1999 (3) SCR 771;       A
LIC of India v. D.J. Bahadur (1981) 1 SCC 315: 1981 (1) SCR
1083; New Maneck Chowk Spg. And Wvg Co. Ltd. v. Textile
Labour Assn. AIR 1961 SC 867; Hindustan Times Ltd. v.
Workmen AIR 1963 SC 1332; Pradip Chandra Parija and
others v. Pramod Chandra Patnaik and Others (2002) 1 SCC       B
1: 2001 (5) Suppl. SCR 460; Chandra Prakash and Others
v. State of U.P. and Another (2002) 4 SCC 234: 2002 (2) SCR
913; Rattiram and Others v. State of Madhya Pradesh (2012)
4 SCC 516: 2012 (3) sqR 496; Indian Oil Corporation Ltd.
v. Municipal Corporation and Another AIR 1995 SC 1480:         C
1995 (3) SCR 246; AR. Antulay v. R.S. Nayak (1988) 2 SCC
602: 1988 (1) Suppl. SCR 1; Punjab Land Development &
Reclamation Corpn. Ltd. v. Labour Court (1990) 3 SCC 682:
1990 (3) SCR 111; State of U.P. v. Synthetics and Chemicals
Ltd. (1991) 4 SCC 139 and Siddharam Satlingappa Mhetre         D
v. State of Maharashtra (2011) 1 SCC 694: 2010 (15) SCR
201 - referred to.

   Powell v. Alabama 77 L Ed 158: 287 US 45 (1932);
Anastaplo, in re: 366 US 82 (1961) - referred to.
                                                               E
      2.1. On merits, on a perusal of the Mahazar (Exht.-4),
it is evident that a sum of Rs.5,000/- was recovered from
the accused-appellant. 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      F
DW-1, an auto driver. DW-1 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        G
 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. The said witness,
                                                               H
    160     SUPREME COURT REPORTS             [2013] 4 S.C.R.


A 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
8 a concocted and totally improbable version. [Para 39]
  [183-C-G]
       2.2. 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
C 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
D 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
E any favour. [Para 40] [184-8-D]
      2.3. 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
F 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,
G 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, the
H explanation offered by the accused does not deserve any
   K.S. PANDURANGA v. STATE OF KARNATAKA                161

acceptance and, accordingly, the finding recorded on           A
that score by the trial Judge and the stamp of approval
given to the same by the High Court cannot be faulted.
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     B
recorded against the accused is unimpeachable. [Paras
41, 42] [184-E-H; 185-A-B]

   State of Maharahstra v. Dnyaneshwar Laxaman Rao
Wankhede (2009) 15 SCC 200: 2009 (11) SCR 513 - relied         C
on.

     3. The submission of the appellant for reduction of
the period of sentence to the period already undergone
in custody cannot be accepted. The appellant has been
convicted under Section 7 of the Act and sentenced to          D
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           E
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        F
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. Where the minimum sentence is
provided, it is not appropriate to exercise jurisdiction       G
under Article 142 of the Constitution of India to reduce
the sentence on the ground of any mitigating factor as
that would tantamount to supplanting the statutory
mandate and further it would amount to ignoring the
substantive statutory provision that prescribes minimum        H
    162      SUPREME COURT REPORTS             [2013] 4 S.CcR.


A sentence for a criminal act relating to demand and
  acceptance of bribe. However, regard being had to the
  facts and circumstances of the case, the age of the
  accused and the ailments he has been suffering, as
  highlighted before this Court, the sentence of
B imprisonment imposed under Section 13(1)(d) read with
  Section 13(2) of the Act is reduced to one year and the
  sentence under Section 7 of the Act is maintained. [Paras
  43, 44] [185-D-H; 186;.A-C]

C       Narendra Champaklal Trivedi v. State of Gujarat (2012)
    7 sec 80: 2012 (6) SCR 165 - relied on.
                         Case Law Reference:
     2011 (3) SCR 209         held per incuriam    Para 10,17,
                                                   18
D
     287 us 45 (1932          referred to       Para 10, 15,
                                                 16
     2010 (14) SCR 792        referred to       Para 10, 17
E    2008 (13) SCR 966        referred to       Para 10, 13
     (2005) 11 sec 413        referred to       Para 10, 11,
                                                23
     366 us 82 (1961)         referred to      Para 15
F   . 1971 (0) Suppl. SCR 133 referred to      Para 19, 21
     1970 (2) sec 426         referred to      Para 19
     1970 (3) SCR 909         referred to      Para 19
     1970 (3) SCR 525         referred to      Para 10
G
     AIR 1987 SC 1500         referred to      Para 20
     1996 (3) Suppl. SCR 247 relied on         Para 21
     1989 (3) SCR 316         referred to      Para 24
H
  K.S. PANDURANGA v. STATE OF KARNATAKA                  163


 1999 (3) SCR 771           referred to      Para 25             A
 1981 (1) SCR 1083          referred to      Para 25
 AIR 1961 SC 867            referred to      Para 25
 AIR 1963 SC 1332           referred to      Para 25
                                                                 B
 2001 (5) Suppl. SCR 460 referred to         Para 26
 2002 (2) SCR 913           referred to      Para 27
 2012 (3) SCR 496           referred to       Para 28
 1995 (3) SCR 246           referred to       Para 28            c
 1988 (1) Suppl. SCR 1      referred to       Para 30
 1990 (3) SCR 111           referred to       Para 32
 (1991) 4 sec 139           referred to       Para 33            0
 2010 (15) SCR 201          referred to       Para 34
 2000 (2) SCR 1009          relied on         Para 35
 2009 (11) SCR 513          relied on         Para 42
                                                                 E
 2012 (6) SCR 165           relied on         Para 43

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 373 of 2013.

     From the Judgment & Order dated 03.06.2011 of the High      F
Court of Karnataka at Bangalore in Criminal Appeal No. 353
of 2004.

    S.N. Bhat for the Apellant.

    V.N. Raghupathy for the Respondent.                          G

    Ths Judgment of the Court was delivered by

    DIPAK MISRA, J. 1. Leave granted.

    2. The appellant was convicted for the offences punishable   H
    164      SUPREME COURT REPORTS                [2013] 4 S.C.R.


A 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
B two months on the first score and 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.
c      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
D 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
E 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 from
F 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
G dispatch department and, therefor~. 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
H bargain was struck .for payment of Rs.5,000/- to get the load.
   K.S. PANDURANGA v. STATE OF KARNATAKA                    165
               [DIPAK MISRA, J.]
As PW-1 was not interested in giving the. bribe amount to the       A
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        B
of the accused. After completion of all the formalities, sanction
order was obtained from the competent authority and charge
sheet wa~ placed before the competent court for the offences
punishable under Sections 7 and 13(1 )(d) read with Section
13(2) of the Act.                                                   c
     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             D
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,      E
(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 the purpose of showing an official favour to the
complainant, i.e., allotting transport loads and thereby            F
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              G
 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,
                                                                    H
     166        SUPREME COURT REPORTS               [2013] 4 S.C.R.


A 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
B 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.      ·

c       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
0 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 Assam 1• In the said case, the Division
  Bench held as follows: -

E          "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
F         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
G         and personal liberty is the most important fundamental
          right of the fundamental rights guaranteed by the
          Constitution. Article 21 can be said to be the "heart and
          soul" of the fundamental rights."

H   1.   (2011) 4 sec 12e.
      K.S. PANDURANGA v. STATE OF KARNATAKA                 167
                  [DIPAK MISRA, J.]
       After so stating, the Bench relied upon the decision of the A
  US Supreme Court in Powell v. Alabama2 which was cited with
  approval by this Court in AS. Mohammed Rafi v. State of
  Tamil Nadu3 . Reference was also made to Man Singh and
  Another v. State of Madhya Pradesh 4 and Bapu Limbaji
. Kamble v. State of Maharashtra 5• Eventually, the Bench held B
  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, C
       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 D
       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 matter        E
 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.     F
 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.
                                                                    G

 2.   77 L Ed 158 : 287 US 45 (1932).
 3.   c2011) 1 sec 688.
 4.   (2008) s sec 542.
 5.   (2005). 11 sec 413.                                           H
    168       SUPREME COURT REPORTS               (2013] 4 S.C.R.


A      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
B hearing of the appeal, the counsel for the accused did not
  appear. The High Court perused the evidence and 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
c       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
D       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
E       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
F 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
G clinching 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.

H       13. In Man Singh and Another (supra), the learned single
     K.S. PANDURANGA v. STATE OF KARNATAKA                    169
                 [DIPAK MISRA, J.]

Judge of the High Court had dismissed the appeal preferred            A
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          B
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       c
an amicus 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               0
 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                   E
      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."
                                                                      F
      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.                                G

     15. In A.S. Mohammed Rafi v. State of Tamil Nadu
(supra), the Division Bench, after referring to Article 22(1 ), the
dictum in Powell (supra) and Anastaplo, In re6, the immortal

6.   6 L Ed 2d 135 : 366 US 82 (1961).                                H
    1_70     SUPREME COURT REPORTS                  [2013] 4 S.C.R.


A 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,
B 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
c       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
D       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
E       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 lawyer who
        refuses to do so is not following the message of The Gita."

F        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
G obser\tations 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: -
H       "The right to be heard would be, in many cases, of little
   K.S. PANDURANGA v. STATE OF KARNATAKA                    171
               [DIPAK MISRA, J.]
    avail if it did not comprehend the right to be heard by A
    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 B
    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. c
    He requires the guiding hand of counsel at every step in
    the proceedings against him. Without it, 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 D
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 E
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 F
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. G
Sukur Ali (supra), the aforesaid case was cited only to highlight
the role of the Bar and the 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 H
     172       SUPREME COURT REPORTS                 [2013) 4 S.C.R.


A 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 Bihar, a two-Judge Bench of this Court was
8
    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
C   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 that the
    consideration of the appeal on merits at the stage of final
D   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
E   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 Maharashtra 6 wherein
    reliance was placed on Siddanna Apparao Patil v. State of
F   Maharashtra 9 and Govinda Kadtuji Kadam v. Th~ State of
    Maharashtra 10 •

       20. In Ram Naresh Yadav and Others v. State of Bihar, 11
  a different note was struck by expressing the view in the
G following terms: -
    7.   AIR 1971 SC 1606.
    8.   AIR 1971 SC 64.
    9.   AIR 1970 SC 977.
    10. AIR 1970 SC 1033
H   11. AIR 1987 SC 1500.
   K.S. PANDURANGA v. STATE OF KARNATAKA                      173
               [DIPAK MISRA, J.]
    "It is no doubt true that if counsel do not appear when           A
    criminal appeals are called 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         B
    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         c
    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             D
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          E
provisions, namely, Section 384 and opined that since the High
Court had already admitted the appeal following the procedure
laid 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                 F
(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             G
    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
12. AIR 1996 SC 2439.                                                 H
    174        SUPREME COURT REPORTS                  [2013] 4 S.C.R.


A         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.
B         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 lawver
          is absent. and the Court deems it appropriate to appoint
          a lawyer at State expense to assist it. there is nothing in
c         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 of Ss. 385-
          386 of the Code correctly when it indicated that the
          Appellate Court was under an obligation to adjourn the
D
          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,
E     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
F     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
G     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."
H                                                (Emphasis supplied)
   K.S. PANDURANGA v. STATE OF KARNATAKA                    175
               [DIPAK MISRA, J.]
      22. From the aforesaid decision, the principles that can A
 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 his counsel/lawyer are absent; (iii) that the
 court may, as a matter of prudence or indulgence, adjourn the B
 matter but it is not bound to do so; (iv) t~at 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 accuseO- c
 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 0
 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    E
the:: appellant. We have already stated that the pronouncement
in AS. 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
an.cf the role of the Bar Associations. The principle laid down     F
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).
                                                                    G
     24. In Union of India and Another v. Raghubir Singh
 (Dead) by LRs etc., 13 the question arose with regard to the


 13. (1989) 2 sec 754.
                                                                    H
      176        SUPREME COURT REPORTS                  [2013] 4 S.C.R.


A     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
B
            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 contemporary status, that the statement of the law
            by a Division Bench is considered binding on a Division
c           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 Bengal, 14 a
            Division Bench of three-Judges found it right to follow the
D           law declared in Haradhan Saha v. State of West Bengaf' 5 ,
            decided by a Division Bench of five Judges, in preference
            to Bhut Nath Mate v. State of West Bengaf' 6 decided by
            a Division Bench of two Judges. Again in Indira Nehru
            Gandhi v. Raj Narain, 17 Beg, J. held that the Constitution
E           Bench of five Judges was bound by the Constitution Bench
            of thirteen Judges in Kesavananda Bharati v. State of
            Kerala 16 • In Ganapati Sitaram Balva/kar v. Waman
            Shripad Mage 1•. this Court expressly stated that the view
            taken on a point of law by a Division Bench of four Judges
F           of this Court was binding on a Division Bench of three-
            Judges of the Court. And in Mattu/al v. Radhe Lat, 20 this
            Court specifically observed that where the view expressed

      14. (1975) 3 sec 836.
G     15. (1975) 3 sec 198.
       16. (1974) 1 sec 645.
       17. 1975 supp sec 1.
       18. (1973) 4 sec:; 22s.
      19. (1981) 4 sec 143.
    H 20. (1974) 2 sec 365.
   K.S. PANDURANGA v. STATE OF KARNATAKA                       177
               [DIPAK MISRA, J.]

     by two different Division Benches of this Court could not        A,
     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. State of               B
     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            c
     Philips India Ltd. 22 "

     25. In N.S. Giri v. Corporation of City of Mangalore and
Others, 33 while taking note of the decision in UC of India v. D.J.
Bahadur24 in the context of binding precedent under Article 141,
the learned Judges observed thus: -                                   D

     " ..... 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. Workmen 26 which is a           E
     four-Judge Bench decision, were not placed before the
     learned Judges deciding UC 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       F
     so, when the attention of the Judges deciding the latter
     case was not invited to the earlier decisions available."

     26. Another Constitution Bench in Pradip Chandra Parija

21. (1975) 1 sec 11.                                                  G
22. (1985) 4 sec 369.
23. (1999) 4 sec 697.
24. (1981) 1 sec 315.
25. AIR 1961 SC 867.
26. AIR 1963 SC 1332.                                                 H
    178        SUPREME COURT REPORTS               (2013) 4 S.C.R.


A 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
B 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
C Another, 28 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
D Judges.

        28. Recently, in Rattiram and Others v. State of Madhya
    Pradesh, 29 the three-Judge Bench, referring to the decision in
  Indian Oil Corporation Ltd. v. Municipal Corporation and
E AnothefJ0 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.
F         Ratnaprabha 31 was not a binding precedent in view of the
          later decisions of the co-equal Bench of this Court in
          Dewan Dau/at Rai Kapoor v. New Delhi Municipal
          Committee 32 and Balbir Singh v. MCD33 . It is worth noting
    27. c2002) 1 sec 1.
G 28. c2002) 4 sec 234.
  29. c2012) 4 sec 516.
    30. AIR 1995 SC 1480.
    31. (1976)4SCC622.
    32. (1980) 1 sec 685.
H 33. (1985) 1 sec 167.
   K.S. PANDURANGA v. STATE OF KARNATAKA                    119
               [DIPAK MISRA, J.]
    that the Division Bench of the High Court proceeded that        A
    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)         B

            "8 . ... The Division Bench of the High Court in
            Municipal Corpn., Indore v. Ratnaprabha
            Ohanda34 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   C
            High Court did 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 D
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 E
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 F
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
criminal appeal in the absence of a counsel for the accused G
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

34. 1989 MPLJ 20.                                                   H
    180        SUPREME COURT REPORTS                  [2013] 4 S.C.R.


A 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. Nayak, 35 Sabyasachi
  Mukharji, J. (as His Lordship then was), while dealing with the
8
  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
C         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
0 observed: -
          "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.
E Ltd. v. Labour Court, 36 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
F
          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
G incuriam and proceeded to hig~light as follows:
          "40. 'lncuria' literally means 'carelessness'. In practice per
    35. (1988) 2 sec 602.
    36. (1990) 3 sec 682.
H   37. (1991) 4 sec 139.
   K.S. PANDURANGA v. STATE OF KARNATAKA                      181
               [DIPAK MISRA, J.]
    incuriam appears to mean per ignoratium. English courts           A
    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, a~proved and adopted by this Court             B
    while interpreting Article 141 of the Constitution which
     embodies the doctrine of precedents as a matter of law.n

     34. In Siddharam Satlingappa Mhetre v. State of
Maharashtra, 39 while addressing the issue of per incuriam, a         C
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       D
     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           E
     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.            F
     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 this Court
has observed that the rule of per incuriam can be applied where       G

38. (1944) 2 All ER 293 (CA).
39. (2011) 1 sec 694.
40. (1980) 2 sec 565.
41. (2000) 4 sec 262.                                                 H
     182       SUPREME COURT REPORTS                [2013) 4 S.C.R.


A 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
8 safely be concluded that the dictum in Mohd. Sukur Ali (supra)
     to the effect that th~ 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
C , 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
D counsel for the appellant that the High Court should 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
E 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
F 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
G 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 with the
H accused-appellant and the allotment work was done by the
    K.S. PANDURANGA v. STATE OF KARNATAKA                   1a3
                [DIPAK MISRA, J.]
 Manager and, hence, he could not have shown any official          A
 favour. It has also been contended that mere recovery of bribed
 money from the possession of the accused is not sufficfent 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             B

       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 suni of C
_ 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 D
  examined, who has deposed that.the accused needed
  Rs.20,000/- to pay back a loan to PW-1 and he had given the
  said s.um to him in his house and, thereafter, ha~ 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 E
  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 F
  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 G
   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.

      40. The next limb of the said submission is that the         H
    184       SUPREME COURT REPORTS                  [2013] 4 S.C.R.


A 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
B 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
  loaes of contractors was the responsibility of the accused. He
c 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.
0
  It is well settled in law that demand and 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.
E
       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
F 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
G 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 any acceptance and, accordingly,
H we find that the finding recorded on that score by the learned
   K.S. PANDURANGA v. STATE OF KARNATAKA                    185
               [DIPAK MISRA, J.]
trial Judge and the stamp of approval given to the same by the      A
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              8
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 Wankhede. 42

      43. The alternative submission of the learned counsel for C
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 Section D
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 E
extend to five years and liability to pay fine. Section 13(2)
stipulates that a public servant who commits criminal
 misconduct shall be Pl!nishable 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 F
 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 Gujarat4 3 that where the
 minimum sentence is provided, it is not appropriate to exercise G
 jurisdiction under Article 142 of the Constitution of India to
 reduce the sentence on the ground of any mitigating factor as
 that would tantamount to supplanting the statutory mandate and
 42. (2009) 1s sec 200.
 43. (2012) 1 sec so.                                               H
    186      SUPREME COURT REPORTS              [2013] 4 S.C.R.


A 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
8 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
C 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 Ad.
  The imposition of sentence of fine on both the scores remains
  undisturbed.

D       45. With the aforesaid modification in the sentence, the
    appeal stands disposed of.
    B.B.B.                                  Appeal disposed of.