Som Mittal versus Govt. Of Karnataka
Som Mittal versus Govt. Of Karnataka
Court: Supreme Court of India
Bench: H.K. Sema, Markandey Katju
Som Mittal vs Govt. Of Karnataka on 29 January, 2008
Power under Section 482 Cr.PC should be used sparingly, yet there may be occasions where in the interest of justice the power should be exercised.
(1) Leave granted.
(2) Heard learned counsel for the parties.
(3) This appeal is directed against the judgment and order dated 28th March, 2006 passed by the High Court of Karnataka at Bangalore in Criminal Petition No. 1535 of 2006 filed underSection 482 of the Code of Criminal Procedure with a prayer to quash cognizance of offence under Sections 25 and 30(3) of the Karnataka Shops and Commercial Establishments Act, 1961 (in short the Act) by Metropolitan Magistrate Traffic Court III.
(4) In view of the order that we propose to pass, it may not be necessary to recite the entire facts leading to the filing of the present appeal. Suffice it to say that an unfortunate incident had occurred on 13th December, 2005 in which late Smt. Pratibha Srikant Murthy was stated to have been murdered on her way to work from her residence. Pursuant to the aforesaid incident a complaint was filed on 27th December, 2005 against the appellant alleging violation of Sections 25 and 30(3) of the Act before the Metropolitan Magistrate. On 30th December, 2005, the Metropolitan Magistrate took cognizance of the offences under aforesaid sections of the Act. On 23rd March, 2006, a petition under Section 482 of the Code of Criminal Procedure for quashing of the complaint and cognizance was filed before the High Court. The High Court, by its impugned order dated 28th March, 2006, dismissed the petition. Hence, the present appeal by special leave. (5) The High Court, by its impugned order, has altered the cognizance taken by the Magistrate under Section 25 read with Section 30(3) to that one under Section 25 read with Section 30(1) of the Act. The High Court was of the view that taking cognizance against the appellant cannot be found fault with and dismissed the petition.
(6) It is noticed, therefore, that petition under Section 482 was filed at the threshold for quashing of the cognizance taken by the Magistrate.
(7) Mr. K. K. Venugopal, learned Senior counsel for the appellant has addressed us on merits of the case. He would contend that the appellant is a Managing Director and occupying the position of management and, therefore, he would be entitled for exemption under Section 3(h) of the Act. He would further contend that the appellant, being Managing Director of the company, would not be liable for prosecution under Section 25 read with Section 30(1) of the Act. (8) Per contra, Ms Anitha Shenoy, learned counsel appearing on behalf of the respondent, contended that Chapter VIII of the Act deals with a penal provision. She would contend that the language, Whoever contravenes employed in Section 30 of the Act would include the Managing Director.
(9) At this stage we are not prepared to enter into the merits of the case on the basis of contentions urged by the respective counsel. Here are our reasons:
(10) In a catena of decisions this Court has deprecated the interference by the High Court in exercise of its inherent powers under Section 482 of the Code in a routine manner. It has been consistently held that the power under Section 482 must be exercised sparingly, with circumspection and in rarest of rare cases. Exercise of inherent power under Section 482 of the Code of Criminal Procedure is not the rule but it is an exception. The exception is applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal. In other words, the inherent power of the Court underSection 482 of the Code of Criminal Procedure can be invoked by the High Court either to prevent abuse of process of any Court or otherwise to secure the ends of justice.
(11) This Court, in a catena of decisions, consistently gave a note of caution that inherent power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. This Court also held that the High Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extra-ordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims and caprice.
(12) We now refer to a few decisions of this Court deprecating the exercise of extra ordinary or inherent powers by the High Court according to its whims and caprice. (13) In State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554 this Court pointed out at SCC p. 574:
The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more. (14) In Hazari Lal Gupta v. Rameshwar Prasad(1972) 1 SCC 452 this Court at SCC p. 455 pointed out:
In exercising jurisdiction under Section 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily inquire as to whether the evidence is reliable or not. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be the impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code. (15) In Jehan Singh v. Delhi Administration (1974) 4 SCC 522 the application filed by the accused under Section 561-A of the old Code for quashing the investigation was dismissed as being premature and incompetent on the finding that prima facie, the allegations in the FIR, if assumed to be correct, constitute a cognizable offence.
(16) In Kurukshetra University v. State of Haryana (1977) 4 SCC 451, this Court pointed out:
It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a first information report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. (emphasis supplied) (17) In State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 this Court held that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has given the working that in exercising that jurisdiction, the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not.
(18) In State of Haryana & ors (appellant) v. Bhajan Lal & ors. (respondents) 1992 Supp. (1) SCC 335, this Court after referring to various decisions of this Court, enumerated various categories of cases by way of illustration wherein the inherent power under Section 482 of the Code should be exercised by the High Court. They are:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. (19) We may observe here that despite this Courts consistently held in catena of decisions that inherent power of the High Court should not be exercised according to whims and caprice and it has to be exercised sparingly, with circumspection and in the rarest of rare cases, we often come across the High Court exercising the inherent power under Section 482 of the Code of Criminal Procedure in a routine manner at its whims and caprice setting at naught the cognizance taken and the FIR lodged at the threshold committing grave miscarriage of justice. While it is true that so long as the inherent power of Section 482 is in the Statute Book, exercise of such power is not impermissible but it must be noted that such power has to be exercised sparingly with circumspection and in the rarest of rare cases, the sole aim of which is to secure the ends of justice. The power under Section 482 is not intended to scuttle justice at the threshold. (20) The rulings cited by Mr. K.K. Venugopal East India Commercial Co. Ltd., Calcutta & Anr. V. The Collector of Customs, Calcutta 1963 (3) SCR 338; T. Prem Sagar v. The Standard Vacuum Oil Company Madras & Ors. 1964 (5) SCR 1030; Boothalinga Agencies v. V.T.C. Poriaswami Nadar1969 (1) SCR 65; and S.M.S.
Pharmaceuticals Ltd. V. Neeta Bhalla & Anr. (2005) 8 SCC 89 are not applicable in the facts of this case at this stage in view of our view above.
(21) In the result, there is no infirmity in the order passed by the High Court warranting our interference in exercise of our power under Article 136 of the Constitution. This appeal is, accordingly, dismissed.
(22) We clarify that we do not express any opinion on the merits of the case. The trial court shall decide the matter expeditiously uninfluenced by any observations made by this Court or the High Court. The trial court shall decide the maintainability of the complaint at the time of consideration of the charge. We further make it clear that it is open to the parties to urge all the contentions as available under the law, including the maintainability of the complaint before the trial judge at the time of consideration of this charge. (23) With these observations and directions, the appeal is dismissed.
Markandey Katju, J.
1. I have perused the judgment of my learned brother Honble H.K. Sema, J. in this appeal.
2. I respectfully agree with his conclusion that the appeal be dismissed but only because of the observations in his judgment that we are not expressing any opinion on the merits of the case. However, I think it is necessary to give my separate concurrent judgment in this case.
3. The appellant before us, Mr. Som Mittal, is the Managing Director of Hewlett Packard Global Soft Ltd. He filed a petition under Section 482, Cr.P.C. before the Karnataka High Court challenging the order dated 30.12.2003 passed by the Metropolitan Magistrate Traffic Court III, Bangalore, taking cognizance of an offence under Section 25 of the Karnataka Shops and Commercial Establishments Act, 1961 (in short `the Act) read with Section 30(3) of the same and also the conditions imposed by the Karnataka Government in its order dated 9.2.2005. It may be mentioned that cognizance was taken on a complaint filed by the respondent through its Senior Labour Inspector, 18th Circle, Bangalore.
4. Section 25 as amended by Act No.14 of 2002 reads as follows :
25. Prohibition of employment of women and young persons during night: No woman, or a young person, shall be required or allowed to work whether as an employee or otherwise in any establishment during nights.
Provided that the State Government may, by notification exempt any establishment of Information Technology or Information Technology enabled service from the provisions of this section relating to, employment of women during night subject to the condition that the establishment provides facilities of transportation and security to such women employees and subject to any other condition as may be specified in the notification.
5. It may be noted from the above provision that while the main part of Section 25 is prohibition of employment of women and young persons in a shop or commercial establishment during night, the proviso enables the State Government to exempt any establishment of Information Technology from the provisions of the section subject to the condition that the establishment provides facility for transportation and security to the woman employees.
6. The Deputy Labour Commissioner, Region 2, Bangalore, in exercise of the power under the proviso to Section 25 issued an office order in terms of Section 25 read with Rule 24(b) of the Karnataka Shops and Commercial Establishments Rules 1963 granting exemption. Condition No.2 of the said Order stated :
Transport facilities from the residence to workplace and back shall be provided free of cost and with adequate security.
7. It appears that on 13.12.2005 at about 2 a.m. a woman employee of the Company of which the appellant was Managing Director was traveling from her house to the workplace situated in Electronic City, Bangalore. While on the way the vehicle driver took the vehicle to a secluded place and raped and killed the said woman employee. This fact finds reference in the letter of the Bangalore City Police Commissioner dated 26.12.2005 addressed to the Labour Commissioner, and in the said letter it is stated that adequate security had not been provided to the said woman employee during her travel from her home to the workplace. It is on the basis of this letter that the complaint was filed on the basis of which cognizance was taken by the learned Magistrate.
8. Shri K.K. Venugopal, learned counsel for the appellant, has invited our attention to Section 3(1)(h) of the Act which states : 3(1) Nothing in this Act shall apply to
(h) person occupying positions of management in any establishment.
9. We agree with Shri Venugopal that the Managing Director is surely a person occupying a position of management in the establishment and hence Section 3(1)(h) is clearly attracted to the facts of this case.
10. However, learned counsel for the State Government has relied on Section 2(h) of the Act which states :
2(h) Employer means a person having charge of or owning or having ultimate control over the affairs of an establishment and includes members of the family of an employer, a manager, agent or other person acting in the general management or control of an establishment;
11. Learned counsel for the respondent submitted that Section 30(1) of the Act states that Whoever contravenes any of the provisions of Sections 4, 5 –
—–, 25 and 39, shall, on conviction, be punished with fine. She submitted that the word whoever in section 30 is broad enough to include the Managing Director also.
12. To my mind, there seems to be some apparent conflict between section 30 and section 3(1)(h) of the Act since while the latter provision states that a person in a position of management is outside the purview of the Act, it is contended by counsel for the respondent that the former provision includes a person in management also since the word whoever is very wide.
13. Since section 30 is also part of the Act, hence prima facie it seems that a Managing Director does not come within the purview of the Act in view of section 3(1)(h). It prima facie seems that only persons not in a position of management will come within the purview of the Act, and hence they alone can be penalized under Section 30. If persons in a position of management are also intended to be penalized then that will require an amendment to the Act, in particularSection 3(1)(h) thereof. The Court cannot amend an Act of the legislature, and cannot fill up a casus omissus.
14. However, I am not expressing any final opinion on the merits of the matter, and it is left open for the court concerned to interpret the various provisions of the Act.
15. While I agree with my learned brother, Honble Sema J. that the power under section 482Cr.P.C. is to be exercised sparingly, I cannot agree with my learned brother that it should be exercised in the rarest of the rare cases.
16. The expression rarest of the rare cases was used in connection with Section 302 IPC to hold that death penalty should only be imposed in rarest of rare cases vide Constitution Bench decision of this Court in Bachan Singh vs. State of Punjab (vide para 207) AIR 1980 SC 898. In my opinion, this expression cannot be extended to a petition under Section 482 Cr.P.C.. Though I agree with my learned brother Honble Sema J. that the power under Section 482Cr.P.C. should be used sparingly, yet there may be occasions where in the interest of justice the power should be exercised.
17. In this connection, I would also like to refer to the situation prevailing in the State of Uttar Pradesh where due to deletion of the provision for anticipatory bail under Section 438 Cr.P.C. bySection 9 of the U.P. Act 16 of 1976, huge difficulties have been created both for the public as well as for the Allahabad High Court.
18. It may be noted that in U.P. such provision for anticipatory bail has been deleted while it continues to exist in all other States in India, even in terrorist affected States. The result is that thousands of petitions under Section 482 are filed every year in Allahabad High Court praying for stay of arrest or for quashing the FIR, because in the absence of the provision of anticipatory bail many persons who are innocent cannot get anticipatory bail even though the FIR filed against them may be frivolous and/or false. Even if such persons get regular bail under Section 439, before that they will have to go to jail, and thus their reputation in society may be irreparably tarnished.
19. It has been held by this Court in Joginder Kumar vs. State of U.P. and others AIR 1994 SC 1349 (vide para 24) that No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing and the justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock up of a person can cause incalculable harm to the reputation and self esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional right of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the persons complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendation of the Police Commissioner merely reflects the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be a reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to a person to attend the Station House and not to leave Station without permission would do.
20. In para 13 of the same judgment this Court has also referred to the Third Report of the National Police Commission which stated that by and large nearly 60% of the arrests in the country were unnecessary or unjustified. Also, 43.2 % of the expenditure in jails was over such prisoners only who need not have been arrested at all.
21. Despite this categorical judgment of the Supreme Court it appears that the police is not at all implementing it. What invariably happens is that whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused person. This is clear violation of the aforesaid judgment of the Supreme Court.
22. It may be noted that Section 2(c) Cr.P.C. defines a cognizable offence as an offence in which a police officer may arrest without warrant. Similarly Section 41 Cr.P.C. states a police officer may arrest a person involved in a cognizable offence. The use of the word `may shows that a police officer is not bound to arrest even in a case of a cognizable offence. When he should arrest and when not is clarified in Joginder Kumars case (supra).
23. Again in Section 157(1) Cr.P.C. it is mentioned that a police officer shall investigate a case relating to a cognizable offence, and if necessary take measures for the arrest of the offender. This again makes it clear that arrest is not a must in every case of a cognizable offence.
24. Because of absence of the provision for anticipatory bail in U.P. thousands of writ petitions and Section 482 Cr.P.C. applications are being filed in the Allahabad High Court praying for stay of the petitioners arrest and/or quashing the FIR. This is unnecessarily increasing the work load of the High Court and adding to the arrears, apart from the hardship to the public, and overcrowding in jails.
25. The right to liberty under Article 21 of the Constitution is a valuable right, and hence should not be lightly interfered with. It was won by the people of Europe and America after tremendous historical struggles and sacrifices. One is reminded of Charles Dickens novel `A Tale of Two Cities in which Dr. Manette was incarcerated in the Bastille for 18 years on a mere lettre de cachet of a French aristocrat, although he was innocent.
26. In Ghani vs. Jones (1970) 1 Q.B. 693 (709) Lord Denning observed :
A mans liberty of movement is regarded so highly by the Law of England that it is not to be hindered or prevented except on the surest grounds. The above observation has been quoted with approval by a Constitution Bench decision of this Court in Maneka Gandhi vs. Union of IndiaAIR 1978 SC 597 (vide para 99).
27. Despite this clear enunciation of the law many people are arrested and sent to the jail on the basis of false and/or frivolous FIRs.
28. In my opinion the problem will be obviated by restoring the provision for anticipatory bail which was contained in Section 438 Cr.P.C. but was deleted in U.P. by Section 9 of U.P. Act 16 of 1976.
29. It is surprising that the provision for anticipatory bail has been deleted in U.P although it exists in all other States in India, even in terrorist affected States. I do not understand why this provision should not exist in U.P. also.
30. As pointed out in Balchand Jain vs. State of Madhya Pradesh AIR 1977 SC 366, the provision for anticipatory bail was included in the Cr.P.C. of 1973 in pursuance of the Forty First Report of the Law Commission which observed:-
The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody and remain in prison for some days and then apply for bail.
31. Thus the provision for anticipatory bail was introduced in the Cr.P.C. because it was realized by Parliament in its wisdom that false and frivolous cases are often filed against some persons and such persons have to go to jail because even if the First Information Report is false and frivolous a person has to obtain bail, and for that he has to first surrender before the learned Magistrate, and his bail application is heard only after several days (usually a week or two) after giving notice to the State. During this period the applicant has to go to jail. Hence even if such person subsequently obtains bail his reputation may be irreparably tarnished, as held by the Supreme Court in Joginder Kumars case (supra). The reputation of a person is a valuable asset for him just as in law the good will of a firm is an intangible asset. In Gita Lord Krishna said to Arjun:
pkdhfrZej.kknfrfjP;rss For a self-respecting man, death is preferable to dishonour (Gita Chapter 2, Shloka 34)
32. No doubt anticipatory bail is not to be granted as a matter of course by the Court but only in accordance with the principles laid down by the Supreme Court in Gurbaksh Singh vs. State of Punjab AIR 1980 SC 1632. However, we are of the view that there must be a provision for anticipatory bail in U.P. for the reason already mentioned above.
33. Experience has shown that the absence of the provision for anticipatory bail has been causing great injustice and hardship to the citizens of U.P. For instance, often false FIRs are filed e.g. under Section 498A IPC, Section 3/4 Dowry Prohibition Act etc. Often aged grandmothers, uncles, aunts, unmarried sisters etc. are implicated in such cases, even though they may have nothing to do with the offence. Sometimes unmarried girls have to go to jail, and this may affect their chances of marriage. As already observed by me above, this is in violation of the decision of this Court in Joginder Kumars case (supra), and the difficulty can be overcome by restoring the provision for anticipatory bail.
34. Moreover, the Allahabad High Court is already over-burdened with heavy arrears and overloaded with work. This load is increasing daily due to the absence of the provision for anticipatory bail. In the absence of such provision whenever an FIR is filed the accused person files a writ petition or application under Section 482 Cr.P.C. and this has resulted in an unmanageable burden on this Court. Also jails in U.P. are overcrowded.
35. The Allahabad High Court had on several occasions requested the State Government to issue an Ordinance immediately to restore the provision for anticipatory bail, (e.g. in Vijay Kumar Verma vs. State of U.P., 2002 Cr.L.J. 4561) but all its requests seem to have fallen on deaf ears. It seems that there is an impression in some quarters that if the provision for anticipatory bail is restored crimes will increase. In my opinion this is a specious argument, since it has not made much difference to the crime position in the States where the provision for anticipatory bail exists, even in terrorist affected States. No doubt the recommendation of a Court is not binding on the State Government/State Legislature but still it should be seriously considered, and not simply ignored. The Court usually makes a recommendation when it feels that the public is facing some hardship. Such recommendation should, therefore, be given respect and serious consideration.
36. I, therefore, make a strong recommendation to the U.P. Government to immediately issue an Ordinance to restore the provision for anticipatory bail by repealing Section 9 of U.P. Act No. 16 of 1976, and empowering the Allahabad High Court as well as the Sessions Courts in U.P. to grant anticipatory bail.
37. In this connection I may also refer to the decision of the Seven Judge Full Bench of Allahabad High Court in Smt. Amarawati and another vs. State of U.P. (2005 Crl. L.J. 755) in which the Full Bench has mentioned that the Sessions Judge while considering a bail application under Section 439 Cr.P.C. can grant interim bail till the final disposal of the bail application subsequently. This will enable innocent persons to avoid going to jail pending consideration of their bail application.
38. I am informed that despite this Seven Judge Full Bench judgment which has clearly mentioned that a Sessions Judge can grant interim bail, the Session Courts in U.P. are ignoring the said judgment and are not granting interim bail pending disposal of the final bail application even in appropriate cases. This is wholly improper. Decisions of this Court and of the High Court must be respected and carried out by the sub-ordinate courts punctually and faithfully. It is, therefore, directed that Amarawatis case (supra) must be implemented in letter and spirit by the Sessions Courts in U.P. and in this connection the Registrar General of Allahabad High Court will circulate letters to all the District Judges in U.P. along with a copy of this judgment to ensure faithful compliance of the decision of the Full Bench decision of the High Court in Amarawatis case (supra).
39. The Secretary General of this Court shall send a copy of my judgment to the Chief Secretary, Home Secretary and Law Secretary of U.P. as well as to the Registrar General of Allahabad High Court and also to the President/Secretary of Allahabad Bar Association and the Allahabad High Court Advocates Association as well as Oudh Bar Association, Lucknow forthwith. A copy shall also be sent to the Chief Secretary, Home Secretary and Law Secretary of all State Governments/Union Territories in India who shall direct all officials to strictly comply with the judgment of this Court in Joginder Kumars case (supra).