INTERPRETATION OF STATUTES

UNION OF INDIA & ANR V. DEOKI NANDAN AGGARWAL [1991] INSC 222 (4 September 1991)

RAMASWAMI, V. (J) II RAMASWAMI, V. (J) II SHETTY, K.J. (J) YOGESHWAR DAYAL (J)

CITATION: 1992 AIR 96 1991 SCR (3) 873 1992 SCC Supl. (1) 323 JT 1991 (3) 608 1991 SCALE (2)481

14 The addition of x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x years of service.

It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legis- lature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the 877 words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law iS. and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.

                                        .-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.--.-.-.--.-

CONSTITUTION OF INDIA : INTERPRETATION OF STATUTE.

Mahalakshmi Sugar Mills Co. Ltd. & Another v. Union of India, AIR 2009 SC 792.

S.B. Sinha and V.S. Sirpurkar, JJ

Civil Appeal Nos. 2258 with 2260 and 2261-2272 of 2008 (arising out of SLP (C) Nos.481 with 14130 & 14978 of 2007). Date: 31.03.2008.

(A) Constitution of India, Art.245 – Validity of subordinate legislation may be questioned on the ground that:

• 1. it is ultra vires the Constitution;

  2. it is ultra vires the parent Act;

  3. it is contrary to the statutory provisions other than those contained in the parent Act;

  4. law-making power has been exercised in bad faith;

  5. it is not reasonable; and

  6. it goes against legislative policy, and does not fulfill the object and purposes of the enabling Act. ( Para 53)

SECTION 115 OF THE C.P.C. AFTER AMENDMENT

SHIV SHAKTI COOP. HOUSING SOCIETY, NAGPUR V. M/S. SWARAJ DEVELOPERS & ORS , AIR 2003 SC 2434 : [2003] INSC 243 (17 April 2003)

32     A plain reading of Section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the party applying for revision would have given finality to suit or other proceeding. If the answer is 'yes' then the revision is maintainable. But on the contrary, if the answer is 'no' then the revision is not maintainable. Therefore, if the impugned order is of interim in nature or does not finally decide the lis, the revision will not be maintainable. The legislative intent is crystal clear. Those orders, which are interim in nature, cannot be the subject matter of revision under Section 115. There is marked distinction in language of Section 97(3) of the Old Amendment Act and Section 32(2)(i) of the Amendment Act. While in the former, there was clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered the parties are to proceed according to the altered mode, without exception, unless there is a different stipulation.

INTERPRETATION OF STATUTES

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1921 OF 2006

( ALSO REPORTED IN AIR 2009 SC 187 )

Nagar Palika Nigam ..Appellant

versus

Krishi Upaj Mandi Samiti and Ors. ..Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

8. The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. As was stated in Mullins v. Treasurer of Survey [1880 (5) QBD 170], (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha (AIR 1961 SC 1596) and Calcutta Tramways Co. Ltd. v. Corporation of Calcutta (AIR 1965 SC 1728); when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case. It is a qualification of the preceding enactment which is expressed in terms too general to be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. "If the language of the enacting part of the statute does not contain the provisions which are said to occur in it you cannot derive these provisions by implication from a proviso." Said Lord Watson in West Derby Union v. Metropolitan Life Assurance Co. (1897 AC 647) (HL). Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (See A.N. Sehgal and Ors. v. Raje Ram Sheoram and Ors. (AIR 1991 SC 1406), Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal and Ors. (AIR 1991 SC 1538) and Kerala State Housing Board and Ors. v. Ramapriya Hotels (P)Ltd. and Ors. (1994 (5) SCC 672).

9. "This word (proviso) hath divers operations. Sometime it worketh a qualification or limitation; sometime a condition; and sometime a covenant" (Coke upon Littleton 18th Edition, 146) 

10. "If in a deed an earlier clause is followed by a later clause which destroys altogether the obligation created by the earlier clause, the later clause is to be rejected as repugnant, and the earlier clause prevails....But if the later clause does not destroy but only qualifies the earlier, then the two are to be read together and effect is to be given to the intention of the parties as disclosed by the deed as a whole" (per Lord Wrenbury in

Forbes v. Git [1922] 1 A.C. 256).

11. A statutory proviso "is something en grafted on a preceding enactment" (R. v. Taunton, St James, 9 B. & C. 836).

12. "The ordinary and proper function of a proviso coming after a general enactment is to limit that general enactment in certain instances" (per Lord Esher in Re Barker, 25 Q.B.D. 285).

13. A proviso to a section cannot be used to import into the enacting part something which is not there, but where the enacting part is susceptible to several possible meanings it may be controlled by the proviso (See Jennings v. Kelly [1940] A.C. 206).

14. The above position was noted in Ali M.K. & Ors. v. State of Kerala and Ors. (2003 (4) SCALE 197).

15. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent.

16. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. M/s Price Waterhouse and Anr. (AIR 1998 SC 74)) The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner (1846 (6) Moore PC 1), Courts, cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by construction make up deficiencies which are left there. (See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr. (JT 1998 (2) SC 253)). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910) AC 445 (HL), quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors.(AIR 1962 SC 847).

17. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990 SC 981).

18. In Dr. R. Venkatchalam and Ors. etc. v. Dy. Transport Commissioner and Ors. Etc. (AIR 1977 SC 842), it was observed that Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.

19. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of Sales Tax, M.P. v. Popular Trading Company, Ujjain (2000 (5) SCC 515). The legislative casus omissus cannot be supplied by judicial interpretative process.

20. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislature and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC (1966 AC 557) where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges".

21. It is then true that, "when the words of a law extend not to an inconvenience rarely happening, but due to those which often happen, it is good reason not to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt." "But," on the other hand, "it is no reason, when the words of a law do enough extend to an inconvenience seldom happening, that they should not extend to it as well as if it happened more frequently, because it happens but seldom" (See Fenton v. Hampton 11 Moore, P.C. 345). A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; "a casus omissus," observed Buller, J. in Jones v. Smart (1 T.R. 52), "can in no case be supplied by a court of law, for that would be to make laws."

22. The golden rule for construing wills, statutes, and, in fact, all written instruments has been thus stated: "The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further" (See Grey v. Pearson 6 H.L. Cas. 61). The latter part of this "golden rule" must, however, be applied with much caution. "if," remarked Jervis, C.J., "the precise words used are plain and unambiguous in our judgment, we are bound to construe them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning" (See Abley v. Dale 11, C.B. 378).

(Dr. ARIJIT PASAYAT), (P. SATHASIVAM) AND

(AFTAB ALAM) ...................J J

New Delhi

October 14, 2008

.=.=.=.=.=.=.=.=.=.=.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.=.=.=.=.=.=.=.=.=.=

CONFLICT BETWEEN STATUTE AND RULING : STATUTE SHALL PREVAIL

STATE OF M.P. v. DEVENDRA

(Criminal Appeal No . 979 of 2002)

MAY 05, 2009

[DR. ARIJIT PASAYAT, D.K. JAIN AND DR. MUKUNDAKAM SHARMA, JJ.]

Disposing of the appeal, the Court

HELD: 1.1. Direction 1 that the State shall make suitable amendments in the Police Regulations about taking and filing photographs of the complainant, material witnesses and accused persons alongwith the charge sheet in all criminal cases, sessions trials, except in minor/petty offences and non-cognizable offence; and Direction 3 that in all criminal cases and sessions trials, except in non-cognizable and minor/petty offences, at the time of filing of the challan/charge sheet the State should also file the photographs of complainant, material witnesses and all the accused persons and the same should be part of the papers of the trial and the State may also retain copy of photographs with the case diary or at the police station for the purposes of service of summons and warrants for arresting the absconding accused persons, are overlapping to certain extent. So far as the accused is concerned the Prisoners Act apply at both pre trial and post trial stages. So far as the complainant and the witnesses are concerned their role is during the trial. [Para 3 and 10] [101-B-C-E-G; 107-F-G]

1.2. The directions given by the High Court are modified. As regards para 8 of the directions the identification has to be based on the basis of information relating to identification of somebody. So far as the direction no. 9 that in all appeals against acquittal the photographs should also form part of record of the trial court and whenever notices and warrants are issued by the appellate court or High Courts the photographs and marks of identification should be cross checked by the office with the accused and when the notices are returned duly served and warrants executed, they should accompany a certificate by the officer that the accused has been duly served after verifying the identity, name and address with the photograph, is concerned only when it is so necessary by the Magistrate action shall be taken. The directions are subject to provisions of the Act, the Regulation and the Code. In case of conflict statute itself prevails. In case of complainant as well as witnesses, where prosecution wants to protect the identity, the reasons, therefore, must be recorded. In case of rape victims, photographs should not be taken. [Para 11] [107-G-H; 108-A-B]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 979 of 2002.

From the Judgment & Order dated 18.02.2002 of the High Court of Madhya

Pradesh, Indore Bench, Indore, Madhya Pradesh in Misc. Crl. Case No. 2932

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the order passed by a learned Single Judge of Madhya Pradesh High Court, Indore Bench, which gave certain directions to the State Government in the matter of identification of prisoners and methodology for investigation. The respondent No.1 had filed an application for grant of bail in terms of Section 439 of the Code of Criminal Procedure, 1973 (in short the `Code'). During hearing of the petition the respondent No.1 who was the applicant before the High Court stated that the petition has become infructuous. Therefore, he did not want to press the same. The High Court held that even though the petition had become infructuous certain directions were necessary to be given to the concerned authorities.

2. The stand before the High Court by the appellant-State was that there were not many cases where impersonation was involved and therefore the desirability of taking the photographs in all cases would be an additional burden on the State Exchequer. It was pointed out that Sections 4, 5 & 6 of the Identification of Prisoners Act, 1920 (in short the `Prisoners Act') provided sufficient guidelines. Direction was given to the State about affixing the photographs of the accused persons as well as the witness. There is a likelihood of a grievance being made that the photographs were shown to the accused before the Test Identification Parade. The High Court was however of the view that at the time of filing charge sheet, the photographs of the witnesses as well as the accused persons should be given to avoid impersonation and to curb delay due to non-service of summons and warrants in criminal trials.

3. The High Court noted that though Section 170(2) of the Code provides for taking surety bonds from the accused persons for their appearance in court at the time when the charge sheet is filed or when the accused is forwarded to Magistrate, this is not sufficient safeguard in cases of impersonation. Accordingly the following directions were given:

"1. That the State shall make suitable amendments in the Police Regulations about taking and filing photographs of the complainant material witnesses and accused persons alongwith the charge sheet in all criminal cases, sessions trials, except in minor/petty offences and non-cognizable offence.

2. In a case where there is no dispute of identification of the accused,

the photograph of such person should invariably be taken at the time of

arrest of any person for crime, while noting his identification marks to avoid

any set back on the prosecution case regarding identification and when

identification is doubtful then the photograph should be taken at the time of

filing charge sheet.

3. In all criminal cases and sessions trials, except in non-cognizable

and minor/petty offences, at the time of filing of the challan/charge sheet the

State should also file the photographs of complainant, material witnesses

and all the accused persons and the same should be part of the papers of

the trial. The State may also retain copy of photographs with the case diary

or at the police station for the purposes of service of summons and warrants

for arresting the absconding accused persons.

4. The photographs should be of enough number to show the accused

clearly from his front pose and may include a photograph of the accused in

standing position.

5. The photographs of the accused persons should be duly

authenticated by the concerned officer, who arrested the accused persons.

6. In all sessions trials and criminal cases when warrants of arrest are

issued the photographs and mark of identification should be checked with

the accused.

7. In all sessions trials and criminal cases at the time of arrest the

identity of the accused should be properly verified and care should be taken

to ascertain his correct name and address.

8. The officer arresting the accused must certify the photographs and

the particulars of his identity with a certificate which should accompany the

chargesheet, which is sent to the court.

9. In all appeals against acquittal the photographs should also form

part of record of the trial court and whenever notices and warrants are

issued by the appellate court or High Courts the photographs and marks of

identification should be cross checked by the office with the accused and

when the notices are returned duly served and warrants executed, they

should accompany a certificate by the officer that the accused has been duly

served after verifying the identity, name and address with the photograph."

4. It is submitted by learned counsel for the State that most of these

directions are impracticable and in some cases run counter to the statutory

mandate of the Prisoners Act.

5. There is no appearance on behalf of respondent.

6. Learned counsel for the State pointed out that the directions Nos. 1, 2, 3,

8 & 9 are incapable of implementation and in any event suggestions are provided

in the Prisoners Act, M.P. Police Regulation (in short the `Regulation') and the

provisions of Code more particularly Sections 160, 161, 170 (2), 171.

7. Reference is also made to Section 54(A) of the Act. As a matter of fact the

High Court's directions are intended to meet the challenge of impersonation.

8. Sections 3, 4 & 5 of the Prisoners Act read as follows:

3. Taking of measurements, etc., of convicted persons. -- Every person who

has been, --

(a) convicted of any offence punishable with rigorous imprisonment

for a term of one year of upwards, or of any offence which would

render him liable to enhanced punishment on a subsequent

convicted; or

(b) ordered to give security for his good behaviour under Section 118

of the Code of Criminal Procedure, 1898 (5 of 1898) .

shall, if so required, allow his measurements and photograph to be

taken by a Police Officer in the prescribed manner.

STATE AMENDMENTS

Gujarat- In clause (b) of Section 3, add the following at the end:

"or under Section 93 of the Bombay Prohibition Act, 1949".

[Bombay Act 58 of 1953].

Maharasthra- For Section 3, substitute the following namely, --

"3. Taking of measurements, etc., of convicted persons. -- Every

person who has been --

(a) convicted of any offence punishable with rigorous imprisonment

for a term of tone year or upwards or of any offence punishable under

Section 19 of the Dangerous Drugs Act, 1930, or of any offence

which would render him liable to enhanced punishment on a

subsequent conviction, or

(b) ordered to give security for his good behaviour under Section 118

of the Code of Criminal Procedure, 1898, or under Section 93 of the

Bombay Prohibition Act, 1949, or to give security for abstaining from

commission of certain offences under Section 18 of the Dangerous

Drugs Act, 1930.

shall if so required allow his measurements and photographs to be taken by

a police officer in the prescribed manner."

[Maharashtra Act 35 of 1970].

4. Taking of measurement, etc., of non-convicted persons. -- Any person

who has been arrested in connection with an offence punishable with

rigorous imprisonment for a term of one year or upwards shall, if so required

by a police officer, allow his measurements to be taken in the prescribed

manner.

STATE AMENDMENTS

Gujarat: (i) In its application to the State of Gujarat for Section 4,

the following substituted, namely:

"4. Taking of measurements of photographs of non-convicted

persons. -- An person --

(a) who has been arrested --

(i) under Section 55 of the Code of Criminal Procedure, 1898,

or under Section 4 of the Bombay Beggars Act, 1945;

(ii) in connection with an offence punishable under Section 122

of the Bombay Police Act, 1951, or under Section 6 or 9 of the

Bombay Beggars Act, 1945, or in connection with an offence

punishable with rigorous imprisonment for a term of one year

or upwards, or

(b) in respect of whom a direction or order under Section 55 or 56 of the

Bombay Police Act, 1951, or under sub-section (1) or (2) of Section

23 of the Bombay Beggars Act, 1945, or under Section 2 of the

Bombay Public Security Measures Act, 1947, has been made,

shall, if so required by a police officer, allow his measurements or

photograph to be taken in the prescribed manner."

Karnataka- In its application to the State of Karnataka, for Section 4

substitute the following:

"4. Taking of measurements or photographs of unconvicted persons.

-- Any person --

(a) who has been arrested in connection with an offence punishable

under Section 96 of the Karnataka Police Act, 1963, or in connection

with an offence punishable of the Karnataka Police Act, 1963, or in

connection with an offence punishable with rigorous imprisonment for

a term of one year or upward or in connection with an offence for the

commission of which on a second or subsequent occasion enhanced

penalties have been provided for under any law for the time being in

force; or

(b) in respect of whom direction or order under Section 54 or 55 of

the Karnataka Police Act, 1963, has been made,

shall if so required by a police officer, allow his measurements or

photographs to be taken in the prescribed manner.

"4-A. Taking of measurements, etc. of habitual offenders against whom

restriction order is made. -- Any person against whom an order of restriction

has been made under the provisions of the Karnataka Habitual Offenders

Act, 1961, shall if so required by a Police Officer, allow his measurements of

photograph to the taken in be prescribed manner".

[Karnataka Act 29 of 1975].

(ii) After Section 4-A as inserted in Karnataka insert the following the

following:

"4-B. Taking of measurement, etc., of beggars under the Karnataka

Prohibition of Beggary Act, 1975. -- Any person who has been

arrested and not released under sub-section (2) of Section 11 of the

Karnataka Prohibition of Beggary Act, 1975 (Karnataka Act 27 of

1975) or against whom an order of detention has been made under

sub-section (1) of Section 12 of the said Act, shall, if so required by

an officer-in-charge of a receiving centre or relief centre allow his

measurements and photographs to be taken in the prescribed

manner."

[Karnataka Act 1 of 1987].

5. Power of Magistrate to order a person to be measured or photographed.

-- If a Magistrate is satisfied that, for the purposes of any investigation or

proceeding under the Code of Criminal Procedure, 1898, it is expedient to

direct any person to allow his measurements or photograph to be taken, he

may make an order to the effect, and in that case the person to whom the

order relates shall be produced or shall attend at the time and place

specified in the order and shall allow his measurements or photograph to be

taken, as the case may be, by a police officer:

Provided that no order shall be made directing any person to be

photographed except by a Magistrate of the first class:

Provided further, that no order shall be made under this section unless the

person has at some time been arrested in connection with such investigation

or proceeding."

9. Section 3 deals with taking of measurement of the convicted persons. The

photographs and measurements and photographs can be taken by the police

officer in the manner prescribed. Section 4 deals with taking of measurement etc.

of non-convicted persons. It is taken if the police officer so requires it and it has to

be done in the prescribed manner. So far as Section 5 is concerned it deals with

the power of the Magistrate to direct any person for measurement or photographs

to be taken if he is satisfied that for the purpose of any investigation or

proceedings under the court the same is necessary.

10. Directions 1 & 3 are overlapping to certain extent. So far as the accused

is concerned the Prisoners Act apply at both pre trial and post trial stages. So far

as the complainant and the witnesses are concerned their role is during the trial.

11. The directions given by the High Court are modified to the following

extent:

So far as para 8 of the directions is concerned the identification has to be

based on the basis of information relating to identification of somebody. So far as

the direction No.9 is concerned only when it is so necessary by the Magistrate

action shall be taken. Needless to say the directions are subject to provisions of

the Act, the Regulation and the Code. In case of conflict statute itself prevails. In case of complainant as well as witnesses, where prosecution wants to protect the

identity, the reasons, therefore, must be recorded. In case of rape victims,

photographs should not be taken.

12. The appeal is accordingly disposed of.