U. P. SUNNI CENTRAL WAKF l'IOARI>

Md. ALIM &: ORS.

May 7, 1971

[K. S. HEGDE AND A. N. GROVEi\, 11.J

Uttar Pradesh Muslim Waqfs Act, 1960-Religious Enduwm.m Ai:t;. 1861 '1ct 20 of 1863-District Judge has no power to fill in vacancy on.th!!" comnutttte constituted ultder the latter A.ct.

Tho Waqf of tho Durgah at Fatehpuri is one of tho Waqfa to which. the provision! of tho Uttar Pradesh Muslim Waqfs Act, 1960 applied. When vacancies arose on the committee of Management constituted under tbe Religious Endowment Act, 1861 (Act 20 of 1863) and these wore not filled by election in terms of s. 10 of this Act, tho appellant Board, constituted under the 1960 Act, filled in tho vacancies acting under tho provisions of the Act. Thereupon respondent no. 1 filed an application in tho court of tho District Juda• under Act 20 of 1863 to appoint persons to fill in tht vacancies. Tho District Judge hold that ho had the power to reconstitut• th• managing committee under s. 10 of Act 20 of 1863 and directed that the vacancies be filled in according to tho rules. Tho Hlah Court in revi• sion came to tho conclusion that there was no provision in tho 1960 Act cor rospondina to 1. 13 of Act 20 of 1863 which cast an additional respon sibility on tho committeeto keep in its custody accounts and consequently held tbat tho Committee conititutod under Act 20 of 1863 could 1till con tinuo to discharge oomo of the functions assigned to it, and the District Judge was thus competent to entertain an .application u11dor 1. 10 thoreol.

HELD: Tho District Judge had no jurisdiction or power to fill hr vacancies on the Committee constituted under the provilions of Act 20> of 1863.

Sections 49 and SO of tho 1960 Act leave no room for doubt that ac counts, which would include books of account, and all relevant records, deeds and documents have. to be in Mutawallf• custody and he is bound to produce them for inspection by tho Board whenever oo desired and Mutawalli accordina to tho definition includes a committee of manaaement.

Tho Act is oolf contained and makes provision for complete ouperintondoru:e, administration and control of the Waqfs over which tho boards established under s. 10 of tho 1960 Act, have jurisdiction.

Therefore, there cannot be an independent oxistelice of a committeeconstitutod under Act 20 of 1863 only for tho purpose of havini custodyof books of account particularly when the 1960 Act fully contemplatoil and provides for the maintcnadt:e, custody etc. of accounts and account books by tho mutawalli. Thero is a clear inconsistency between its 11ro visions and those of Act 20 of 1860 relatina to committees, their functioning and control. [814FHl

CIVIL APPELLATE JUR.ISDICTION Civil Appeal No. 1021 of 1966.

Appeal by special leave from the judgment and decree da~ September 8; 1965 of the Allahabad High Court in Civil. Revisiom No. 76 of 1964.

u. p, SUNNI WAJ:P BOARD v. MOHD. ALlll (Grover,/.) 8 u

C. B. Aggarwala, K. L. Hathi, Quayamuddin Shah and P. C. & Kapoor, for the appellant.

M. C. Chag/a and S. S. Shukla, for respondent No. l(ii).

S. K. Bagga and s. Bagga, for respondent Nos. 2(i) to (iii).

The Judgment of the Court was delivered by

Grover,. J~This is an appeal by special leave from a judg ment of the Allahabad High Court made in exercise of the revi sional jurisdiction.

The appellant is a statutory board established under the provisions of s. 10 of the Uttar Pradesh Muslim Waqfs Act, 1960. hereinafter called the 'Act'. The Act applies to all waqfs which at the time of its coming into force were under the uperintendence of the Sunni Central Board and the Shia Central Board consti luted under the U.P. Muslims Waqfs Act 1936.

The present proceedings relate to the famous Durgah of Hazrat Sheikh Saleem Cbishti at Fatehpuri Sikri in the district of Agra said to have been established by Emperor Akbar. The Durgah was administered originally by the Moghuls and thereafter by the Board of Revenue established by the British Govern ment under the Bengal Regulation No. 19 of 1810. Subsequently the Religious Endowment Act 1861 (Act 20 of 1863) was passed which provided for the management of mosques, temples and other religious establishments. Section 7 of Act 20 of 1863 pro vided for the appointment and constitution of the committees which were to be appointed by the State . Government for the management of religious establishments mentioned in s. 3 of that Act Section 10 provided for election when a vacancy occurred in the committee. By G.O. dated July 7, 1925 and a subsequent notification dated February 27, 1927 rules for the election of the. managing committee were framed and a committee was formed.

The Waqf of the Durgah was registered as one of the waqfs under the superintendence of the Board as provided by s. 5 of the U. P. Muslim Waqfs Act 1936. It is common ground that the waqf is registered and it is one of the waqfs to which the provi sions of the Act would be applicable. The term of four members of the committee constituted under the provisions of Act 20 of 1863 expired in 1962 and as the vacancies were not filled in by election the President of the appellant board filled in the vacanci~ acting under the provisions of the Act Respondent No. 1 filcl an application in the court of the District Judge at Agra purporting to be an application under Act 20 of 1863 stating inter alia that the President of the appellant board had constituted a committee

:812

of five persons under the provisions of the Act by filling in the four vacancies. It was further averred that the provisions of the Act, particularly s. 48, did not obviate the necessity of the appointment of the committee by the District Judge under s. 10 of Act 20 of 1863. It was, therefore, prayed that the District Judge may appoint persons to fill in the vacancies. The appellant

board contested that application principally on the ground that after the enactment of the Act the .provisions of s. 10 of Act 20 of 1863 were no longer applicable.

The appellant board also maintained that the appointment of the committee by the court would be inconsistent with the appointment of a managing committee by the board under the provisions of the Act.

The District Judge by his judgement dated November 23, 1963 held that he had the power to reconstitute the managing committee under s. 10 of Act 20 of 1863. He directed that the vacancies shall be filled up according to the prescribed rules.

The appellant moved the High Court under s. 115 of the Code of Civil Procedure for revising the order of the District Judge. The High Court referred to the relevant provisions of the Act as well as Act 20 of 1863. It was of the view that for the purpose of Act 20 of 1863 mosques, temples and other religious establishments could be divided in two main groups. One was that to which the provisions of the Bengal Regulation No. 19 of 1810 or Madras Regulation No. 7 of 1817 were applicable. The other group was the one to which the provisions of these Regulations did not apply.

The first group could be sub-divided into two depending upon the mode of nomination or appointment of the trustee, manager or superintendent. Section 3 of Act 20 of 1863 applied to religious establishments falling in the sub-group in whicb the nomination of a trustee, manager or superintendent thereof was vested in, or was exercised by or was subject to the confirmation of the government or any public officer. In case of establishments covered by s. 3 it was necessary for the State Government to proceed under s. 7 and to appoint one or more committees. On the appointment of the committee the Board of Revenue and the local agents ceased to exercise the functions assigned to them under the Regulation and they were to transfer to such committee all landed or other property belonging to the establishment. After referring to the relevant provisions of the Act the learned judge held that the general power of superintendence conferred on the committee constituted under s. 7 of Act 20 of 1863 became vested in the appellant board constituted under the Act. The continuance of the committee for the general supervision of waqfs was, therefore, inconsistent with the provisions of s. 19 of !be Act and in such circumstances the corresponding provisions M Act 20 of 1863 stood repealed with the result that the committee appointed under s. 7 of that enactment could not dischae the general

u. P. SUNNJ WAU BOARD Y. MOHD. ALl)l (Grover, J.)

power of supervision and superintendence of waqfs to which the Act applied. However, in the opinion of the learned judge there was no provision in the Act corresponding to s. 13 of Act 20 of

1863. That section casts an additional responsibility on the com mittee in that it has to keep in its custody accounts regularly submitted by the trustee, manager or superintendent of the mosque or religious establishment. Clauses (g) and (i) of s. 19(2) and s. 27 of the Act did not show any inconsistency with the provisions of s. 13 of /'.ct 20 of 1863. It was consequently held that the committee constituted under s. 7 of Act 20 of 1863 could still continue to discharge some of the functions assigned to it and the District Judge was thus competent to entertain an application under s. 10 thereof and fill the vacancy among the members of the committee.

We are unable to share the view of the High Court. On his own reasoning the learned judge could not have come to the con clusion at which he arrived, namely, that although the power of general superintendence of the waqf in question vested in the appellant board and that the committee constituted under s. 7 of Act 20 of 1863 could not exercise those powers which were exer cisable by the board a committee under the old Act could still function for the purpose of s. 13 of that Act inasmuch as such a committee would still have the custody of the accounts of the waqf.

The Act has been enacted to provide for better governance, administration and supervision of certain classes of waqf in the State of U.P. Section 3(5) defines the word "mutawalli" to mean:

"a manager of a waqf and includes an amin, a sajjadana shin, a khadim, naib-mutawalli and a committee of mana gement, and also includes any person who is for the time being in charge of, or administering, waqfs."

SectioJl 10 provides for the establishment of Central Boards.

Section 19 contains the unctions of the Board. Sub-s. (!) says that the Board shall do all things reasonable or necessary to ensure that the waqfs under its superintendence ar~ properly main . tained, controlled and administered and the income thereof is duly appropriated to the purpose for which they were founded or for which they exist. The following clauses of sub-s. (2) may be noticed:-

"(g) to inspect or .cause inspection of waqf proper

ties accounts or records or deeds and documents relating thereto ;

(h) to investigate into the nature and extent of waqf properties and call, from time to tim!l,

accounts and other returns and information

from the mutawallis and give directiom for the proper administration of waqfs ;

(i) to arrange for the auditing of accounts submitted or required to be submitted by the mutawallis:

(k) to administer the Waqf Fund;

(I) to keep regular accounts of the receipts and disbursement and submit the same to the State Government in the manner prescribed ;

Section 48 relates to appointment of mutawallis and s. 49 to their duties. The mutawalli is bound to carry out all directions issued by the board and to furnish such returns and supply such infor mation as may be required by the board or the sub-<:<>mmittee from time to time. The mutawalli has also to allow inspection of waqf property, accounts or records or deeds and documents relating thereto. Under s. 50 he has to prepare every year a 1'ud

get for the next financial year and submit to the board before the first day of May in every year a full and true statement of accounts.

Section 85 (I) provides that nothing in any other enactment which is inconsistent with the provisions of the Act shall apply to any waqf to which the Act applied.

As has been stall'..d before, it is not disputed that the waqf of the Durgah is governed by the provisions of the Act. The en tire scheme of the Act shows that the control and supervision over the waqf is that of the board constituted under s. JO. It is the board that has full powers with regard to inspection of accounts, their auditing, administration of the waqf funds and all such matters. Sections 49 and SO leave no room for doubt that ac counts which would include books of account and all relevant records, deeds and documents have to be in MutawalJi's custody and he is bound to produce them for inspection of. the board when ever so desired. "MutawalJi", according to the definition, in cludes a committee of management. The Act appears to be self contained and makes provisions for complete superintendence, administration and control of the waqfs over which the boards established under s. 10 have jurisdiction. It is barely possible to envisage the independent existence of a committee constituted under Act 20 of 1863 only for the purpose of having custody of the books of account particularly when the Act fuJJy contem plates and provides for the maintenance, custody etc. of accounts and account books by the mutawalli. It is common ground that the Act was passed with the approval of the President of India.

There is a clear inooncy between its provisions and those of Act 20 of 1863 relating to committees, their functioning and .control.

u. P. SUNNI WA"U BOARD' MOHD. ALIM (Grover, J.)

We accordingly hold that the District Judge had no jurisdic- ; tion or power to fill in vacancies on the committee constituted under the provisions of Act 20 of 1863. The appeal is therefore .allowed and the orders of the High Court and the District Judge .are hereby set aside.

The application under the provisions of Act 20 of 1863 shall stand dismissed. The parties will bear their -'lwn costs in this Court.

X.B.N.

Appeal allowed.

U. P. SUNNI CENTRAL WAKF l

Md. ALIM &: ORS

K. S. HEGDE

Uttar Pradesh Muslim Waqfs Act, 1960

Uttar Pradesh Muslim Waqfs Act, 1960

s. 10

s. 10

Sections 49

s. 10

s. 10

Uttar Pradesh Muslim Waqfs Act, 1960

Muslims Waqfs Act 1936

Section 7

s. 3

Section 10

s. 5

Muslim Waqfs Act 1936

s. 48

s. 10

s. 10

s. 10

s. 115

the Code of Civil Procedure

Section 3

s. 3

s. 7

s. 7

s. 19

s. 7

s. 13

s. 19(2)

s. 27

s. 13

s. 7

s. 10

s. 7

s. 13

Section 3(5)

Section 19

Section 48

s. 49

s. 50

Section 85

Sections 49

s. 10


S. SRIKANTIAH & ORS.

THE REGIONAL TRANSPORT AUTHORITY,

ANANTAPUR & ORS.

May 7, 1971

[S. M. SIICRI, C. J., G. K. MITTER, C. A. VAIDIALINGAM, P. JAGAN

MOHAN REDDY AND I. D. DUA, JJ.]

Madras Motor Vehicles (Taxation of Passengers and Good•) Act 16 of 1952 and The Motor Vehicles (Taxation of Passengers Goods) A.ndhra Pradesh (Amendment) Act 1959-Notification issued under s. 43 of A.ct authorising enhancement of fares by operators-No consequential amend~ ment made in permits held by operators-Once NotificatiOn is issued under s. 43 the conditions of permits stand statutorily amended by' virtue of s. 59

(3) (c).

The Madras Motor Vehicles (Taxation of Passengers and Goods) Act 1952 became applicable to the State of Andhra and subsequenUy to Andhra

Pradesh when the respective reorganisation of States took place in 1953 and 1956. In 1959 the Andhra Pradesh legislature enacted the Motor Vehi cles (Thxation of Passengers and Goods) Andhra Pradesh (Amendment) Act with a view to augmenting the revenue of the State. By this Act the rates in respect of state carriages as well as good9 vehicles were increased. The Act came into force with effect from 8th May 1959. On 7th May 1959 by G.O. Ms. No. 1077 the State Transport Authority was directed by the Government to fix maximum fares inclusive of the leviable ta'X. under the Act for the state carriages in the State of Andhra Pradesh. The 1959 amendment was struck down by the High Court The legislature there after passed Act 34 of 1961 by validating the levy under the Act which bad been struck down by the High Court and also for imposition of a surcharge. The operators again questioned the Amendment Act of 1961 on the ground that they had not collected the fares on the enhanced rates fixed by the Transport Authority because by the conditions of their permit they were precluded from collecting the fares at a rate higher than 7 t pies or 4 NP per passenger per mile.

In view of the fact that the Regional Transport Authorities had not taken action to modify that conditk, n suitably they could not collect .this amount and therefore were not liable to pay surcharge at enhan, ced rates. The High Court held that the directions issued by the Government in G.O. Ms. No. 1077 of 7th May 1959 pursuant to which the Regional Transport Authority by its proceedings dated 12th May 1959 called upon the Regional Transport Officers to notify the operators and which the said officers had notified authorising them to collect the enhanced fares was sufficient authorisation for them to collect the enhanced fares as if the fare tables had been amended. The operators appealed to this Court. The constitutionality of the surcharge having been upheld by this Court in Nazeeria Motor Service etc. etc. v. StaJe of Andhra Pradesh & Anr., (1970r 2 S.C.R. 52, the only question that survived for consideration was whether there was any impediment preventina: the operators from collectina the enharced fares without the conditions of the per mit being amended.

HELD : In view of the direction• given by the Government in it• notification under s. 43 the Regional Transport Authority called upon the Regional Transport Ofticers to notify the operators to collect the enhonced

s. SRIKANTIA!I v,.l\BGI01'\AL TRANSPORT (Jaganmohan Reddy. J.)

fares and accordingly the officers concerned in compliance with these dircc~ tion• notified the operators. Once the provisions of section 43(1)(i) and 44(4) are complied with section 59(3) (c) comes into play and it has the effect of incorporating the maximum fares as notified includina the tax Jeviable, as a condition of the permit. This being the lcsal position there was no justification for the contention that the collection by the operaton of the enham:ed fares without the table of fares being amended would en tail the cancellation of the permits. [820G-H]

Madhya Pradesh Transport Co. Private Ltd. v. State of MadhyQ Pra desh, A.l.R. (Vol. 49) 1962 M.P. 108, distin&uished. .

CML APPELLATE JURISDICTION : Civil Appeal No. 1332 of 1968.

Appeal from the judgment and order dated February 3, c 1964 of the Andhra Pradesh High Court in Writ Petition No. 201 of 1963.

K. Mangachari, K. R. Chaudhuri and K. Rajendra Cltdudhury, for the appellants. · · ·

P. Ram Reddy and G. S. Rama Rao, for the respondent. •

The Judgment of the Court was delivered by

P. Japnmoban Reddy, J.-This Appeal is 'by a Certificate against the Judgment of the Andhra PradlilllHigh Court

given in a batch of Writ. Petitions .of. which ttif '.Writ Petition giving rise to this Appeal ..vas one. The High Cot!rt while dismissing the Writ Petitions gave certain directions to which we will refer later.

A few facts may be stated to appreciate the matters in issue in this appeal. The Madras Motor Vehicles cr.axation of Passengers and Goods) Act (Act XVI of 1952) became applicable to the State of Andhra and. subsequently to the Alldhra Pradesh when the respective reorganisation of. States took place in 1953 and 1956. In 1959 the Andhra Prapesh legislature enacted the Motor Vehicles (Taxation of Passengers and Goods) Andhra Pradesh (Amendment) Act with a view to augment the revenue

of the State. By this amendment Act the rates had been increased in respect of State carriages as well as in respect of goods vehicles. It is not necessary to notice what those rates are exeept to say that under sub-section (2) of Section 1 of the Madras Motor Vehicle (Taxation of Passengers and Goods) Andhra Pradesh (Amendment) Act 1959, the Govt. of Andhra Pradesh appointed the 8th May 1959 as the date on which the State Act came into force.

On 7th May 1959 by G.0. Ms. No. 1077 the State Transport Authority was directed by the Govt. . to fix maximum fares inclusive of the Ieviable tax under the Act for the

52-1 s. a. India/71

SUPREME COURT REPORTS p97 l] SUPP. S.C.R.

state carriages in the State of Andhra Pradesh whicc immediately before the !st November 1956 were comprised in the State of Andhra. The Andhra Pradesh Amendment having wme into force it was challenged in a batch of Writ Petitions in the High Court of Andhra Pradesh and that Court had struck down the Act as being un-constitutional. The legislature thereafter passed Act 34 of 1961 by validating the levy under the Act which was struck down by the High Court and also for imposition of surcharge from the different dates from the date on which it came into force namely from the 3rd November 1961. The operators again questioned the Amendment Act of 1961 on the ground that they had not collected the fares on the enhanced rates fixed by the Transport Authority because by the conditions of their permit they were precluded from collecting the fares at a rate higher than 7~· pies or 4 NP per passenger per mile.

In view of the fact that the Regional Transport Authorities had not taken. action to modify that condition suitably they could not collect this amount and therefore were not liable to pay surcharge a! the enhanced rates. This contention was negatived by the High Court which while rejecting the Writ Petitions on that ground none-the-less directed that the Respondents will not be entitled to payment or collect the enhanced surcharge from the operators for the month of May 1959 which the Counsel for the Government had stated on instruction that the Govt. will not collect.

The point which is urged before us, as was urged in the High Court is whether the enhanced surcharge became operative and payable immediately on the coming into force of the 1961 Act or was it necessary to amend the conditions of the permit dealing with the fares leviable by the operators before the Government could collect the enhanced surcharge from them.

The learned Advocate for the Appellents argues relying on Madhya Pradesh Transport Co. Private Ltd. v. State of Madhya Pradesh(') that unless 'the table of fares is altered. in accordance

with the procedure laid down fares which includes taxes cannot be lawfully collected and therefore they are not law bound to pay . the enhanced surcharge. This very contention was raised before the High Court, which disagreeing with the Madhya Pradesh case cited above held that the directions issued by the Govt. in G.O. Ms. No. 1077 of 7th May 1959 persuant to which the Regional Transport Authority by its proceedings dated 12th May 1959 called upon the Regional Transport Officers to notify the operators and which the said officers had notified authorising them to collect the enhanced fares was sufficient authorisation for them to collect the enhanced fares as if the fare tables had been amended. --- ----- --. - . (!) A.LR. (Vol. 49) 1962-M. P. 108.

s. SRIKANTIAH 'REGIONAL TRANSPORT (Jaganmohan Reddy, J.) 819

It may be mentioned that the constitutionality of the enhanced surcharge was upheld by this Court in Nazeeria Motor Service etc. etc. v. State of Andhra Pradesh & Anr .. Cl and therefore the only question that servives is whether there is an impediment to the operators to collect fares without the conditions of the permit being amended.

There is of course the other basic question whether the payment of the enhanced tax is dependent on the operators collecting the enhanced fares. In any case it is unnecessary to consider this .question in the view we have taken that the contention urged by the Appellant is unsustainable.

The relevant provisions of the Motor Vehicles Act clearly support the view taken by the High Court that once a Notification is issued by the Government in exercise of the powers under Section 43(l)(i) the conditions of the permit stand statntorily amended by virtue of Section 59(3)(c).

The provisions of Section 43, 44, 48 and 59 before their amendment in 1969, in so far as they are applicable to the matter under consideration arc as follows.··-

43(1) A State Government ...... may from time to time by D Notification in the official Gazette issue directions to the State Transport Authority-

(i) regarding the fixing of fares and freights for stage carriages, contract carriages and public carriers;

44(3) A State Transport Authority shall give effect to any directions issued under Section 43 and subject to such directions and save as otherwise provided by or under this Act shall exercise and discharge throughout the State the following powers and functions namely :

(a)

(b)

(c) (d)

(4) For the purpose of exercising and discharging the powers and functions specified in sub-section (3), a State Transport Authority may, subject to such conditions as may be prescribed, issue directions to any Regional Transport Authority and the Regional Transport Authority shall in the discharge of its functions under this Act give effect to and be guided by such directions.

48(3) The Regional Transport Authority, if it decides to grant a stage carriage permit, may grant the permit for

t) Il910] 2 s. c. R. 52

SUPREME COURT REPOR'Il! [1971] SUPP. s.c.a.

a service of stage carriage of a specified description or for one or more particular stage carriages, and may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions namely: -

(i) to (xi) • i •

(xii) that fares shall be charged in accordance with the approved fare table;

59(3) The following shall be conditions of every permit: -

(c) that any prohibition or restriction imposed and any maximum or minimum fares or freights fixed by notification made under Section 43 are observed m connection with any vehicle or vehicles to which the permit relates :

The Government has persuant to Section 43 issued the following notification :

"In exercise of the powers conferred by clause (i) of sub-section (!) of Section 43 of the Motor Vehicles Act, 1939 (Central Act, IV of 1939) and in supersession of the Notification of the Government of A.P. in Public Works and Transport Department No. 1184 dated the

I Ith August 1956, published at page 2026 of part I of the A. P. Gazette dated the 6th September 1956, the Governor of Andhra Pradesh hereby directs the State Transport to fix the following maximum fares inclusive of the tax leviable under the Madras Motor Vehicles

(fa.xation of Passengers and Goods) Act, 1952 (Madras Act XVI of 1952) for stage carriages in the territories of the State of Andhra Pradesh which immediately before the !st November, 1956 were comprised in the State of Andhra ............... "

In view of the directions given by the Government in tile above notification the Regional Transport Authority called upon the Regional Transport Officers to notify the operators to collect , the enhanced fares and accordingly the officers concerned in compliance with those directions notified the operators.

Once the provisions of Section 43(1)(i) and 44(4) are complied with Section 59(3)(c) comes into play and it has the effect of incorporating the maximum fares as rrotified including the tax leviable, as a condition of the permit.

This being the legal position we do not think there is any justification for the contention that the collection by the operators of the enhanced fares without the table of fares being amended Would entail the cancellation of the permits.

s. SRIKANTIAH v. REGIONAL TRANSPORT lJaganmohan Reddy, J.)

The decision of the Madhya Pradesh case is clearly distinguishable as it does not appear that any notification was issued under Section 43 as was done in this case nor do we find that the provisions of Section 59(3)(c) have been referred to or considered.

At page ll l, Dixit C.1., noted the submissions of the Additional Government pleader that instructions would be issued to all Regional Transport Authorities for a revision of fare tables under Section 43 of the Motor Vehicles Act so as to enable the operators to recover the tax amount from the passengers as extra fare, which he observed was a step in the right direction. These observations show that there was no notification under Section 43 nor any instructions given to the Regional Transport Officers by the Regional Transport Authority. In the circumstance that case is not an authority for the proposition ntended by the learned Advocate for the Appellant.

In our view there is no validity in the stand taken by the operators and consequently this appeal is dismissed with costs.

Appeal dismissed.

G. C.

S. SRIKANTIAH & ORS

G. K. MITTER

MOHAN REDDY

I. D. DUA, JJ.

s. 43

s. 43

s. 59

s. 43

section 43(1)(i) and 44(4)

section 59(3)

Section 1

Motor Vehicles Act

Section 43(l)(i)

Section 59(3)(c)

Section 43, 44, 48 and 59

Section 43

Section 43

Section 43

Section 43

Motor Vehicles Act, 1939

Madras Act XVI of 1952

Section 43(1)(i) and 44(4)

Section 59(3)(c)

Section 43

Section 59(3)(c)

Section 43

Motor Vehicles Act

Section 43


MANGI LAL v.

K. R. PAWAR & ANR.

May 7, 1971

[J. M. SHELAT, I. D. DUA AND V. BHARGAVA, JJ.J

Representation of the People Act (43 of 1951), ss. 9A. 77 & 123- Publication of statements relating to the personal character or conduct of a candidate-When a corrupt practice-Contract between Company and Government-Chairman of Board of Directors of Company-If deemed to have entered into contract with Government.

The appellant challenged the election of the first respondent on the grounds: (I) that during the election campaign statements were 'Oade at a public meeting that the appellants had misappropriated money, that statements wre published in a weekly referring to the appellant as a corrupt candidat", that the statements were made with the first respondent's approval, that the statements were false and the respondent either believed them to be false or did not believe them to be true, and that by publishing the false statements in relation to the personal character or conduct of the appellant the first respondent appellant was guilty of a corrupt practice under s. 123 (4) of the Representation of the People 'Act, 1951. (2) That the respondent purchased petrol worth about Rs. 2,000 and if that amount was added to the admitted expenditure it would show that the respondent had incurred election expenses in excess of the limit prescribed by s. 77 of the Act read with r. 90 of the Election Rules.

(3) That the respondent was a Chairman of the Board of Directors of an Electric Supply Company which generated and supplied electricity to the State Government under a contract. and therefore he was disqualified on the ground that he had a subsisting contract with the State within the meaning of s. 9(A) of the Act.

The election petition was dismissed by the High Court

In appeal to this Court,

HELD: (1) The appellant had himself admitted on oath as a witness that a complaint was filed against him for embezzlement. The complaint was pending in the criminal court at the time of the election.

A charge was also framed in those !proceedings. The charge and complaint are relevant and there is no provision of law which makes the order framing the charge or the complaint inadmissible in evidence.

there was thus enough material to show that the statements relating to the appellant were not founded on mere suspicion or that they were the result of a pure conjuncture or guess. Hence, the appellant had failed to discharge the burden laid on him under s. 123(4) of the Act to prove that the impugned statements were not only false but in addition that the respondent and his agents published them either believing them to be false or not believing them to be true. [827A]

Dr. Jagjit Singh v. Giani Kartar Singh, A.I.R. 1966 S.C. 773, followed.

(2) The charge that he incurred election expenses beyond the prescrihed limit must fail for want of evidence connecting this item of expenditure with the election.

MANOI LAL v. PA WAR (Dua, J.)

(3) Section 9A of the Act only covers contracts which have ocen entered into by a person in the course of his trade or business with te appropriate Government for the supply of goods to or for the execution of any works undertaken by that Government. In the present case, the contract to supply electricity by the Electric Supply Company could by no means be considered to be a contract entered into by the respondent in the course of his trade or business merely because he was at the relevant time a Chairman of the Board of Directors of the Company, because the business of a companY could not be described as a trade or business of the Chairman of its Board of Directors. -[828B]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1229 of 1970. ·

Appeal under s. 116-A of the Representation of the People C Act, 1951 from the judgment and order dated March 27, 1970 of the Madhya Pradesh High Court, Indore Bench in Election Petition No. 1 of 1968.

L. M. Sir.ghvi, U. N. Bachawat, Sobhagmal Jain and S. K.

Dhingra, for the appellant.

V. S. Desai, A. M. Mathur, Bhim Singh and S. K. Gambhir, for respondent no. 1.

The Judgment of .the Court was delivered by

Dua, J.-Mangi Lal Joshi has appealed to this Court under s. 116-A of the Representation of the People Act 43 of 1951 (hereinafter called 'the Act') from the judgment and. order of the Madhya Pradesh High Court (Indore Bench) dismissing his election petition under s. 81 of the Act challenging the election of respondent No. 1 Krishnaji Rao Pawar, an Ex-Ruler of the erstwhile Dewas Senior State, to the Legislative Assembly of Madhya Pradesh from the General-Dewas Assembly Constituency No. 256 in the 'bye-election held in June -1968.

This seat had fallen vacant on account of the death of Shri Hattesing, the successful candidate from this constituency in the General Elections held in February 1967. The appellant had contested the election on the ticket of the Indian National Congress whereas respondent No. I had contested it as an independent candidate. The charges on which the appellant's learned counsel has concentrated before us relate to : -

(il the alleged corrupt practice of publication of false statements relatingto the personal character and conduct of the appellant;

(ii) the incurring of election expenses in excess of the prescribed limit ; and

824 5UPREMB COURT REPORTil [1971] SUPP. s.c.R.

(iii) the alleged disqualifications of the respondent on the

ground that he had a subsisting contract with the State within the contemplation of s. 9A of the Act.

The charge of bribery pressed in the High Court was not reagitated in this appeal.

The first point canvassed before us relates to the alleged corrupt practice of publication of false statement of fact in relation to the personal character or conduct of the appellant as contemplated by s, 123 sub-s. (4) of the Act.

Arguments on this point were confined to sub-issues (a), (b), (c), (d), (e), (f) & (gi of Issue No. 5 and the relevant sub-issues of Issue No. 6.

The aforesaid sub-issues of Issue No. 5 cover the plea contained in para. 13(b)(i) of the election petition. It was averred in that sub-para that at a public meeting held at about 8 P.M. on June 13, 1968, at Jawahar Chowk at which the returned candidate was present, Abdul Rehman Talib of Dewas, Kanhaiyasingh Thakur of Dewas, Kr. Virendrasingh, Deputy Minister of Labour, Government of Madhya Pradesh and Khasherao Ghorpade of Dewas, in the course of their speeches, made statements relating to the personal character and conduct of the petitioner I appellant which were false and which the speakers and the returned candirlate either believed to be false or did not believe to be true and those statements were reasonably calculated to prejudice the petitioner/appellant's prospects of election .• Abdul Rahman Talib was alleged to have said :-

"No votes should be given to such Congress Candidate who has misappropriated the money."

Kr. VirendrasiJ!gh was imputed the following statement : -·

"f have come from Labour Colony.

Water tank is lying empty.

All the money of water subscription has been misappropriated by Congress candi<Jate INTUC,

Mangilal Joshi. The workers will not vote for him."

Kanhaiyasingh Thakur was stated to have said : -

"'The workers subscription has been misappropriated by INTUC Joshi. There is also a case pending against him in Court."

Khasherao Ghorpade was alleged to have said : -

"No votes be given to the corrupt candidate of Congress who has misappropriated workers' subscription money ........... . ..

The relevant parts of Issue No .. 6 cover the plea containe<l in para J3(b)(ii) of the election petition. The controversy covered by this issue which now survives is confined to the statements

MANOI LAL v. PA WAR (Dua, J.) 825

alleged to have been published in the issue of the weekly A 'Ranchandi' dated June 16, 1968. From that issue the following extracts published in connection with the election in question

ere relied upon by the appellant in support of the allegations of the corrupt practice : -

"Voters beware of Joshi misappropriator of the workers' subscription." B

.. Corrupt Congress candidate Mangilal Joshi."

"Appeal to remain careful of the misappropriator of mill workers' subscription, corrupt candidate Mangilal Joshi."

According to the written statement on behalf of the returned candidate (Respondent No. 1 in this Court) all that the speakers at the meeting on June 13, 1968 in Jawahar Chowk had pointed out was that a prosecution was pending against Mangi Lal Joshi and that he was charged with embezzlement of the funds of the Mazdoor Sangh and of the donations of the workers.

Though in the written statement the returned candidate denied that he had continued to be present at the meeting, the Court below held that he was present throughout a tit! this finding in our view must' be accepted. He also denied that the statement made by the speakers at the meeting had been made with his consent but in the circumstances of the case we would assume that he cannot disown those statements which were made in his interest and, therefore, they were in all probability made with his approval.

In regard to the publication in 'Ranchandi' the respondent pleaded in the written statement that the Editor of the weekly used to publish election material on his own responsibility and that the respondent had no concern with the statements published therein. The subject-matter published in the issue of June 16, 1968 was stated not to have been published with the respondent's consent. He, however, proceeded, without prejudice, to add that the statements of fact contained therein were not believed by him to be either false or untru~.

It is not disputed that on the evening of June 13, 1968 at about 8-00 P.M. an election meeting was actually held in Jawahar Chowk, Dewas, and it was called in support of the respondent's election and also that this meeting was addressed by Abdul Rehman.

Talib, Kr. Virendrasingh and Kanhaiyasingh Thakur. In regard to Khasherao Ghorpade, however, the respondent did. not admit that he had addres8ed the meeting. The High Court after considering the evidence on the record and the arguments addressed before it came to the conclusion that Abdul Rehman Talib had,

during the course of his addrss at that meeting, stated tlaat Mangilal Joshi had misappropriated the amount of subscription realised from the labourers and that a case was pending in Court against him and no votes should be cast in his favour. In regard to Kr. Vifendrasingb, the High Court came to the conclusi0n that the speech attributed to him bad not been proved.

About Kanhaiyasingh Thakur's speech also, the High Court accepted the evidence of the appellant's witnesses to the effect that Kanhaiyasingh Thakur had said that Mangilal Joshi had embezzled the amount realised by him as subscription from the labourers and a case in this connection was also going on against him in Court.

The High Court too'c notice of the fact that Kanhaiyasingh Thakur was called as witness by the returned candidate and he was actually present in Court on September 23, 1969 but was given up. In regard to Khasherao Ghorpade, the High Court accepted the appellant's case that he had addressed the meeting in which he bad stated that the appellant had misappropriated the money realised as subscription from the labourers.

The High Court then considered the offending publication in the issue of 'Ranchandi' da.ted June 16, 1968. That Court after considering the material to which its attention was drawn observed that in this case the word 'corrupt' had been used in the context that Mangilal Joshi had mis-appropriated or embezzled the subscription amount of the labourers and that Mangilal Joshi's description as a corrupt person was intended to convey the fact that he had embezzled or mis-appropriated the subscription realised from the labourers. The use of word 'Bhrastachar' in this connection was held to connote a corrupt person. After considering some decisions of this Court on the construction to be placed on s. 123 sub-section (4) of the Act which were cited in the High Court, that court came to the conclusion that the appellant had failed to prove that the impugned statements were false or were either believed to be false or not believed to be true by the speakers and the returned candidate. This conclusion was arrived at in the 'background/ of the fact that the criminal complaint had been filed against the appellant by one Lal Singh, as far back as July 1965. Lal Singh appeared as witness for the respondent as R.W. 13 in the High Court and proved his complaint from the original record of criminal case No. 52 of 1965 in the Court of AdditiOnaJ,. Magistrate (Jud.), Dewas.

A certified copy of that complaint Exhibit D. 1 was also placed on the record.

According to that complaint it was alleged that Mangilal Joshi was the President of Dewas Mill Mazdoor Sangh and had held that office for the preceding 9 years.

Several amounts relating to membership fee were stated to have been collected from the workers and the amount of several thousand rupees were neither dei'osited with the Mazdoor Sangh office nor entered in the rel1tted registers. It was principally on the basis of the pendency

MANG! LAL v. PA WAR (Dua, J.)

of this complaint that the High Court came to the conclusion that the appellant had not discharged the onus of showing that tlie offending statements of facts were false and were believed. by the returned candidate, the speakers at the meeting in question and the Ediitor of 'Ranchand:i' to be false or were not believed by them to be true.

The charge relating to disqualifications of the returned candidate was based on the averment that the returned candidate was a Chairman of the Board of Directors of the Dewas Senior Electric Supply Company Private Limited and that this Company generated electricity and supplied the same to the State Government under a contract. On this basis it was pleaded that under s. 9A of the Act the returned candidate must be held to be disqualified from seeking election to the Assembly.

The High Court repelled this contention holding that the returned candidate could not be held to have directly entered into any contract with the Government merely by reason of the fact he was the Chairman of the Board of Directors of the Electric ' Supply Company.

Reliance for this view was placed on a decision of the Madhya Pradesh High Court reported as Satya Prakash v. Bashir Ahmed Qureshi(').

In regard to the allegations of the election expenses incurred by the returned candidate being in excess of the prescribed limit it was contended that petrol worth about Rs. 2,000 had been purchased by respondent No. I between May 31, 1968 and June l 5. 1968 and if the whole of this amount wa~ to be added to the expenditure admitted by the returned candidate to have been incurred then this would exceed the prescribed limit, thereby contravening s. 77 of the Act. This contravention according to the appellant's learned counsel is a corrupt practice covered by s. 123 sub-section (6) of the Act. The High Court did not agree with this submission and held that the petrol and oil purchased from May 30, J968 to June 15, 1968 inclµded petrol and oil for various other requirements of the returned candidate and the whole of it was not proved to have been used for election purposes.

The whole of this amount, therefore, could not be included in the election expenses. The election petition as. already observed was dismissed by the High Court.

On appeal, Dr. Singhvi has re-agitated all these points.

We may first dispose of the point of disqualification.

Section 9A of the Act on which the entire argument rests, reads :- Disqualification for Government contracts.

"A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the

(1) A. I. R. 1963 M. P. 316.

course of his trade or business with the appropriate Gov ernment for the supply of goods to, or for the execution of any works undertaken by, that Government."

It is unnecessary for the purpO£e of 1this case to reproduce the explanation.

It is clear that this section only covers contracts whi'ch have been entered into by a person in the course of his trade or business with the appropriate Government for the supply of goods to or for the execution of any works undertaken by that Government.

Dr. Singhvi contended that the supply of electricity would amount to the supply of goods. That perhaps is so. But, in our opinion, the contract of supply of electricity by the Electric Supply Company can by no means be considered to be a contract entered into by respondent No. I in the course of his trade or business by reason merely of the fact that he was at the relevant time Chairman of the Board of Directors of the Company. It is not possible to describe the business of the Company to be the trade or business of the Chairman of the Board of Directors. A Company registered under the Indian Companies Act, it is settled beyond dispute, is a separate entity distinct from its shareholders. The Chairman of the Board of Directors of the Company while functioning as such cannot be said to be engaged in his trade or business as contemplated. by s. 9A of the Act. The legal position is so clear that the appellant's learned counsel, after an unsuccessful attempt to persuade us to the contrary view, felt constrained not to pursue this point seriously.

Coming now to the charge of the alleged corrupt practice covered by s. 123(4) of the Act, we do not consider it necessary

t<' go into the evidence in detail or to consider at length the arguments addressed on the question of the impression conveyed to the people who had heard the speeches or read the offending publication in the newspaper 'Ranchandi'. We will accept the position that the offending statements, both oral, made in the various speeches referred to earlier and those contained in print as published. in the Ranchandi dated June 16, 1968 (Ext.

Pf8) do prima facie offend s. 123 (4) of the Act if false and either ibelieved to be so or not believed to be true.

Now it is not dispute<I that the criminal complaint dated July 27, 1965, under ss. 403 and 406 I.P.C. was filed against Mangi Lal appellant and.

Kanahiyalal by one Lal Singh in the Court of the Magistrate, !st Oass, Dewas. In that complaint it was alleged that the accused had collected from the workers of Dewas Mill the following amounts :._

I. Membership fee

2. Wageboard Fund Rs. 15,000/- Rs. 1,5001

MANG! LAL v. PA WAR (Dua, J.)

3. Gratuity Fund Rs. 1,500/-

4. Mazdoor Sevadal Rs. 900/-

5. Travelling Fund Rs. 1,000/-

6. Water Tax Rs. 1,000/-

Jt was also averred in the complaint that except for a sum of Rs. S or 6 thousands the remaining amounts were neither deposited with the Mazdoor Sangh' s office nor were they entered in the relevant registers. Mangi Lal was described in the complaint as the President of the Dewas Mill Mazdoor Sangh and

Kanahiyala, l accused ijo. 2 as the Secretary of the said Union.

The appellant Mangi Lal in his cross-examination as P.W. 32 admitted that this complaint dated, July 27, 1965, had been filed against him which was pending at the time of the bye-election i.n question and that a charge had also been framed in that case on August 22, 1968 (Ext. P / 9).

He further admitted that Lal Singh was a mill worker in the Dewas Standard M'tll and was also a representative of the Indian National Trade Union Congress of Dewas.

Lal Singh appeared as R. W. 13 and proved that complaint and also a part of his statement dated April 12, 1968 made in the Court of the Magistrate.

The returned candidate appearing as R. W. 17 stated that he knew of this complaint. The High Court on appraisal of the entire material on the record expressed its final conclusion on Issues S(f) and 6(a) to (h), which are the relevant issues, in these words :

"Assuming, though not admitting, that the petitioner; has succeeded in proving the falsity of the_ impugned statement, even then he is not out of the woods. As held in Sheopa!singh v. Rampratap (A.I.R. 1965 S. C. 677) even if the statement is false the candidate making it is protected unless he makes it believing it to be false not believing it to be true i.e., to say statements which are not true but made bona fide are also outside the ambit of the provisions of sec:Von 123(4) of the Act. We have seen above that the criminal complaint against the petitioner for having committed criminal misappropriation or criminal breacli of trust was filed in the criminal Court in the year 1965 when this bye-election was not even in contemplation. It Js no body's case that either the three speaker&, namely Shri Abdual Rehman Talib (R, W, 2), Shri Kanhaiyasingh Thakur and Shri Khaserao Ghorpade or the Edjtor Shri Rameshwar Sen (R.w, 5) or the returned candidate Shri Krishnajirao 1>awar

(R.W. 17) were in any way instrumental in. getting the said complaint filed against the said petitioner.

This very complaint was pending at the . time of this byeelection in question and a number of witnesses examined

by the petitioner and also examined by the returned candidate have stated that such a complaint was filed in criminal court against the petitioner and it was pending.

In other words, filing of such a complaint against the petitioner was a notorious fact known to several persons in Dewas and subsequently the charge was framed against him on the same material thus, the impugned statement was not founded on mere suspicion pure or simple nor was it the result of pure conjecture or guess. It had positive basis and the basis subsequently proved to be prlma facie correct, therefore, the impugned statement falls within the ambit of bona fide statement.

In conclusion, therefore, I hold that the petitioner failed to prove that the impugned statement was false and was either believed to be false or not believed to be true. Accordingly, I decide these two issues as not proved Hence it follows that the impugned statement does not fall within the mischief of section 123(4) of the Act."

We are in full agreement with the approach and the final conclusion of the High Court.

The, essential basic facts seems to lls to be incontrovertl"ble, and if that be so, then clearly there is a very heavy burden on the petitioner I appellant to prove the most vital ingredients prescribed in s. 123(4) of the Act, namely, that the impugned statement of fact is not only false, but in addition that the respondent returned candidate and his agents publishing the impugned statements either believed the same to be false or did not believe them to be true : See Dr. J ag; it Singh

v. Giani Kartar Singh and others.(') On this point there is absolutely no material on the record.

This challenge by the appellant also fails.

Dr, Singhvi, we may in fairness to him point out, took considerable pains to persuade us to hold that the order of. the criminal Court framing the charge is inadmissible in the proceedings.

It was also submitted that the charge having been framed afterwards could not be taken into account for considering whether the impugned statements could be 'believed to be true at the time they were made.

Dr. Singhvi submitted that if the order of the criminal Court> is ignored and if the appellant's denial about embezzlement is taken into account then the statements made at the meeting and those published in 'Ranchandi' must be held to be false and believed to be so or not believed to be true, This argument is difficult to accept. To begin with, the appellant has himself admitted on oath as a witness that the complaint was filed against him for embezzlement and a

(I) A. I. R. 1966 S. C.773.

MANG! LAL V. PAWAR (Dua,/.) 831

charge was also framed in those proceedings.

This admission A cannot be ignored.

We are also not inclined to agree with Dr. Singhvi that the order framing the charge or the complaint are inadmissible in evidence. Dr. Singhvi has not drawn our atten tion to any provision of law which would render them inadmissible in the present proceedings.

The counsel then submitted that Lal 2ingh's statement in the criminal Court is clearly inadmissible as evidence and the High Court was wrong in taking that statement into consideration.

Here again, we think that the counsel in not quite correct.

The statement of Lal Singh would seem to us to be relevant and admissibfo under several provisions of the Indian Evidence Act. We need onlr refer to ss.,7, 8 and 11(2) of that Act.

In this connection it 1s interesting to point out lhat Lal Singh's statement in the Criminal Court was got proved in his cross-examination at the instance of the election petitiouer I appellant. It would, therefore, be a question for consideration if the appellant can now be permitted to find fault with what he himself had elicited by cross-examining R.W. 13. However. even excluding this cross-examination there is. in our opinion, .ample material in support of the conclusions of the High Court.

This takes us to the charge of corrupt practi~..1 iirS. 123(6) of the Act. This charge relates to the respOi\"clepf' 'returned candidate's election expenses bein~ in excess of the limit pres·

cribed by s. 77 of the Act read with r. 90 of the Election Rules.

The only point in respect of this charge pressed before us is that petrol worth Rs. 2,000 /. was purchased by the returned candidate from Mis A. J. Khanuja & Sons, Bombay-Agra Road, Dewas.

If this amount is added to the admitted expenditure of Rs. 6,576-78, then the expenses would exceed the prescribed limit and the election must according to , the appellant be set aside on this ground. Dr. Singhvi addressed elaborate arguments on this point with the object of showing that the entire petrol purchased from the aforesaid firm must be held to have been purchased for the purpose of the election in question.

We do not consider it necessary to deal with the arguments at length because the charge must fail for want of evidence connecting this item of expenditure with the election. The High Court has observed in 1his connection :

"The petitioner has not adduced any evidence on this point except that of Daulatrao (P.W. !) who has also filed extracts of accounts of petrol and oil etc. purchased by the returned candidate from his master MI s A. J.

Khanuja and Sons, Dewas during the releV'ant period.

Neither these extracts nor the evidence of this witness establishes the additional expenditure of Rs. 2000 I as pleaded by the petitioner. The returned candidate Shri Krishnajirao Pawar (R.W. 17) has deposed that at the relevant time he owned two jeeps, five cars, one tractor and one pick-up van and agricultural land of about 500 acres. He also deposed that during the period of this bye-election he used only the jeeps for election propaganda but petrol was purchased not only for the jeeps but for cars also which were used for house-hold purposes. He further deposed that Diesel was used for agricultural purposes. His testimony further shows that he had instructed Mis A. J. Khanuja and Sons Dewas that petrol and oil purchased for to the election purposes should be marked distinctly and, therefore, he used to sent the counter-foil for purchase of eetrol and oil which used to be marked with latter 'g' to indicate that the same were purchase for election purposes.

About marking, the petitioner's witness, Daulatrao (P.W. I) says something.

The total costs of the marked items so called out from the extracts (Ex. P. I and P. 2) have not been shown to be an additional expenditure and not covered b) the election expenses return filed by Shri Krishnaji Rao Pawar (R.W. 17).

He is the ruler of Senior Dewas State, possessed several vehicles at the relevant time and, therefore, undoubtedly needed petrol and oil for them, as also oil for

traietor and pick up van during the said period for his domestic purposes and agricultural purposes besides election purposes.

The evidence of Daulatrao (P. W. !) himself would show that in the month of April 1968 when there was no hectic activity about the election.

The cost of petrol and oil purchased by him during that month amounted to Rs. 2604-12 Paise. That would indicate that he requires Jar3e quantity of petrol and oil for his motor vehicles, oil engine etc. used for domestic and agricultural purposes. It is tme that the extracts of accounts (Ex. P. I and P. 2) show that cost of petrol and oil purchased from 31-5-1968. was about Rs. 2250 /- but it is impossible to believe that the entire cost was incurred in connection with this election. I hold that the petitioner has failed to establish that the returned candidate had incurred or authorised additional expenditure of Rs. 2,000/- from 31-5-1968 to 15-6-1968 in connection with his election and I decide this. issue as not proved."

MANOI LAL v. PAWAP, (Dua, J.) 833

The reasoning and approach of the High Court is unexcep- A. tionable and nothing urged by Dr. Singhvi has persuaded us to disagree with the High Court's conclusions.

These were the only points urged at the bar in support of the appeal. As we find all of them to be without substance, thl appeal fails and is dismissed with costs. a

V.P.S.

App, eal dismisH".

53-1 S. C. lndia/71

MANGI LAL

K. R. PAWAR & ANR

M. SHELAT

I. D. DUA

V. BHARGAVA, JJ

Representation of the People Act

ss. 9A

s. 123

s. 77

s. 9(A)

s. 123(4)

Section 9A

s. 116

s. 116

Representation of the People Act

s. 81

s. 9A

s. 123

s. 9A

s. 77

s. 123

Section 9A

s. 9A

s. 123(4)

s. 123

ss. 403 and 406

I.P.C

section 123(4)

s. 123(4)

Indian Evidence Act

s. 77


J!l

PATEL LAUIBHAI SOMABHAI

THE STATE OF GUJARAT

May 7, 1971

[S. M. SIKRI, C. J,, P. JAGANMOHAN REDDY AND

I. D. DUA, JJ.)

Cod• of Criminal Proc•dure, 1898-S•ctlon !9S(l)(c), Scop• of.

The ar.llant had filed a suit for the recovery of certain amount on the basis o a foraed cheque. A private complaint waa filed in tho Court ef the Judicial Maaistrate aaainst the appellant and another per•on for otfencea punishable under sections 467 and 471 Penal Code. The Ma1is trate found primo focle evidence !hat the appellant bad fraudulenUy used in the Civil Suit a forged cheque, and committed him to the Sessions for

trial. Tho appellant raised an objection tblit in view of aection !95(l)(C) of tho Codo of Criminal Procedure no cognizance of the offence could be taken on a private complainl Tho High Court upheld the commit meat erder. On tho scope and effect of aection 195(l)(C) and iii applicability to cases where a forged document bas been produced as evidence in a judicial proceeding by a party thereto and prosecution of that party is aougbt for offences under sections 467 and 471 Penal Code,

HELD: The words "to have been committed by a party to any pro ceedina in any court" in section 195(1)(c) mean that the offence should be alleged to have been committed by the party to the proceeding in his character a• such party, that is, after havina become a party to the proceed ina. Sections 195(l)(C), 476 and 476A Code of Criminal Procedure, read toaetber indicate that tho legi&lature could not have intended to extend tho prohibition contained in section 195(1)(c) to tho offences mentioned therein when committed by a party to a proceedina in that court prior to his be coming such party. Tho offences about which tho court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain, may be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which bas a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. [842DH]

In this case the offence under section 471 Penal Code is clearly cover~ ed by the prohibition contained in section 195(1) (C); but the offence under section 467 Penal Code can be tried in the absence of a complaint by the Court unless it is shown by the t; vidence that documents in question were forged by a party to the earer proceedin¥ in. his character as such a party; in other words after the smt bad been mstituted. [847B]

Emperor v. Kushal Pal Singh, I.L.R. [1953] All. 804 approved.

State of Gujarat v, A.Ii Bin Rajak, 9 Guj: Law Reporter I, Emperor v.

Mallappa, A.I.R. 1937 Born. 14, Har Prasad v. Hans Raj, A.l.R. 1966 All.

124, Vivekanond v. State A.I.R. 1969 All. 189, Harinath Singh v. State 1964 All. L. J. 467, Basiru/.Haq v. State of West Bengal, A.l.R. 1953 S.C. 293, Krishna Nair v, Stat• of Kerala, (1962) I Cr!. L. J. 340 and Stat• v.

Bhikubhol, A.I.R. 1965 Guj. 70, referred to.

SOl4ABHAI 1. GUJARAT (Dua, J.) 835

CiuMINAL APPELATB JURISDICTION : Criminal Appeal No. 169 A of 1969.

Appeal from the judgment and order dated April 30, 1968 of the Gujarat High Court in Criminal Reference No. 49 of 1966.

N. N. Keswani, for the appellant.

S. K. Dho/akia and S. P. Nayar, for the respondent.

The J uclgment 'Of the Court was delivered by

Dua, J.-This appeal with certificate under Art. 134(l)lc) 'Of the Constitution directed against the judgment and order of the Gujarat High Court in criminal reference made by the Sessions Judge, Ahmedabad, raises an important question of law on which there appears to be conflict of judicial opinion. Even in the Gujarat High Court the correctness of the majority view in the Full Bench decision in the State of Gujarat v. Ali Bin Rajak(') bas been doubted by the learned Judge hearing the criminal reference in the present case, who followed the majority view merely because he felt bound by it.

The learned single Judge did not consider the case to be fit for reference to a larger bench for reconsidering the majority view in the case of Ali Bin Rajak(').

Certificate of fitness for appeal to this Court was, l!owever, granted by the learned Judge.

The question raised relates to the scope and effect of s. 195(l)(c), Cr. P.C. and its applicability to cases where a forged document has been produced as evidence in a judicial proceeding by a party thereto and prosecution of that party is sought for offences under ss. 467 and 471, I.P.C. in respect of that document.

The relevant facts of the case may now be briefly sta.ted, The appellant Patel Laljibhai Somabhal instituted a civil suit (No. 11 of 1964) in the court of Joint Civil Judge at Dholka against Vora Safakat Huseian Yusufali (hereafter called the complainant) and his brother Vora Ahmed Huseian Yusufali for the recovery of Rs. 2,000 I on the basis of a cheque dated November 22,. 1963 (alleged to have been given to him on June 27, 1963) under the signatures of the complainant Vora Safakat Huseian Yusufali Lakadwala on the Bombay Mercantile Cooperative Bank Ltd., Ahmedabad Branch. The defence in the suit was that the cheque in question and certain coupons .. which were produced and relied upon in that suit were forged and the suit was false. The suit was dismissed on January 30, 1965 by the Joint Gvil Judge, Dholka.

The Co111t did not believe the

(I) 9 Guj. Law Reporter I.

plaintiff's story about the cheque.

On November 16, 1965 the compiainant filed a complaint in the court of the Judicial Magistrate, First Class, Dholka against two accused persons for offences punishable under ss. 467 and 471, I.P.C. The two accused were Vora Saifuddin Akbarali and the appellant.

Vora Saifuddin Akbaraili (accused no. 1) is described in the complaint as the complainant's sister's husband. It was averred in the complaint that the complaintant's elder brother Ahmedbhai had started a business in milk in Ahmedabad and accU.Sed no. 1 used to help him in that business from time to time. This business had been started in the shop of the brother of accused no. 1 who was also dealing in milk. Ahmedbhai used to stay at the house of accused no. 1. The books, coupons and cheque books of the milk business had been kept at the residence of accused no. l.

This business was carried on till July, 1962 when it was closed and Ahmedbhai left Ahmedabad for Limbdi for staying there.

The appellant had been appointed as the commission agent through accused no. 1 and milk was collected from various milkmen through him (the appellant).

When the business was closed on July 28, 1962 a sum of Rs. 231-1-0 remained to be paid to the appellant and nine cans of milk remained in balance with him. A notice was given in this connection after settling all the accounts and the appellant paid Rs. 200/- in cash to Ahmedbhai and thereafter nothing was due to the appellant. On November 30, 1962 the defendants in the suit at the instance of accused no. 1 started a milk shop at Jamalpur and they used to stay at the house of accused no. I who was employed in tlte Mercantile Bank and through whom an account was opened with that bank in the name of the defendants. Accused no. I nsed to utilise this account for himself and his brothers.

Being a relative, accused no. I was trusted by the complainant and ru, brother and they used to act according to the instructions of accused no. I. In June, 1962 accused no. 1 had come to Limbdi and asked for a loan of Rs. 15,000/- from the complainant's father. But this request was declined with the result that accusH no. I got annoyed and threatened him with ruinous consequences.

Thereafter accused no. I conspired with the appellant to harm the complainant and his brother and father. Cheque books containing blank cheque forms but bearing the complainant's signatures and all the books of account were at that time kept in the house of accused no. !, where the complainant and his brother used to stay. It is in this background that the accused no. I prepared a cheque for Rs. 2,000 /- in his own handwriting on a blank cheque form bearing the oomplainanfs signature and the appellant utilised that cheque.

The appellant and accused no. 1 were, on these averments, alleged to have forged the cheque.

Civil Suit No. ll / 64 was then filed in which this cheque was

use~ knowing the same to be forged. The Magistrate found

SOMABHAI v. GUJARAT (Dua, J.)

prima facie evidence that the appellant (accused No. 2) had fraudulently used in the civil suit the forged chaque in question. The Magistrate also found prima facie evidence that accused no. 1 had committed an offence punishable under s. 467, I.P.C. and the appellant was liable under s. 34, I.P.C. The forgery of the cheque and the use of the forged cheque as genuine were considered by the Committing Magistrate to form part of the same transaction and the two charges could, therefore, be tried together.

The question of the necessity of complaint by the Civil Court under s. 195(1)(c), Cr. P.C. was also raised in the committing court but following the decision of the Bombay High Court in Emperor v. Mallappa(') the Magistrate held that provision to be inapplicable to the present case. On behalf of the appellant an application was then made in the court of the Assistant Sessions Judge in which the trial was to be held, praying for quashing the commitment proceedings because in face of s. 195(1)(c) no cognizance of the offence could be taken by the court on a private complaint.

As the Assistant Sessions Judge could not make any reference to the High Court the case was withdrawn by the Sessions Judge to his own court who after hearing the application referred the case to the High Court with a recommendation that the commitment order be quashed.

The High Court, considering itself bound by the majority view in the case (}f

Ali Bin Rajak(') declined the recommendation and upheld the commitment order as already noticed. In view of the contlict of judicial opinion amongst the various High Courts and even in the Gujarat High Court itself we would prefer first to consider the relevant statutory provisions on their own language and thereafter to consider the decided cases.

Section 195 ciccurs in Division B of Chapter XV in Part VI of the Code of Criminal Procedure.

Part VI consisting of Chapters XV to XXX iS headed "Proceedings in prosecution".

Chapter XV deals with "The jurisdiction of criminal courts in inquiries and trial!'. It consists of ss. 177 to 199B and is divided into two divisions. Sections 177 to 189 (Division A) deal with the "Place of Inquiry or trial" and ss. 190 to 199B (Division B) deal with the "Conditions requisite for initiatiop. of proceedings".

We are only concerned with Division B but it is unnecessary to deal with each one of the sections contained in tha.t Division.

Only two section~ require to be noticed, namely, ss. 190 and 195.

Section 190 deals with "cognizance of offences by Magistrates".

This section, subject to the exceptions contained in the succeeding provisions of the Code, empowers the Magistrates mentioned therein to take cognizance of any offence 11pon complaint, police report, or information or on the knowledge or suspicion of the

(1) A. I. R. 1937 Born. 14.

(2) 9 Guj. Law Reporter I.

SUPREMB COURT REPORTS [1971] SUPP. s.c.R.

Magistrate about the commission of an offence. The main purpose of this section is to ensure freedom and safety of the subject by giving him a right to approach the court if he considers that a wrong has been done to him.

Sub-section (!) of s. 195 which is concerned with (a) "Prosecution for contempt of lawful authority of public servants", (b) "Prosecution for certain offences against public justice", and (c) "Prosecution for certain offences relating to documents given in evidence" places some restrictions on the general power conferred on courts of Magistrates by s. 190 to take cognizance of offences. This section may here be reproduced.

"195. Prosecutioa for contempt of lawful authority of public Sft'YaJd".-

(1) No Court shall take cognizance-

(a) of any offence punishable under sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;

(b) Prosecution for certain offences against public justice.---Of any offence punishable under any of the following sections of the same Code, namely, s.ections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in or in relation to any proceeding in any Court, except on the complaint in writing of such Court or some other Court to which such Court is subordinate; or

(c) Prosecution for certain offences relating to documents given in evldence.-Of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing. of such Court, or of some other Court to which such Court is subordinate.

(2) In clauses (b) and (c) of sub-section (!), the term "Court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the Indian Registration Act, 1877.

(3) For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a civil Court from whose decrees no appeal ordinarily lies to the principal Court having ordinary original civil jurisdiction

SOMABllAI v. GUJARAT (Dua, J.)

within the local limits of whose jurisdiction such Civil Court is situate :

Provided that-

(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be sub ordinate; and

(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.

(4) The provisions of sub-section (1), with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such offences, and attempts to commit them.

(5) Where a complaint has been made under subsection (1), clause (a), by a public servant, any authority to which such public servant is subordinate may order the \vithdrawal of the complaint and, if it does so, it shall forward a copy of such order to the Court and, upon receipt thereof by the Court, no further proceedings shall be taken on the complaint."

We are directly concerned only with cl. (c) of s. 195(1).

What is particularly worth noting in this clause is (i) the allegation of commission of an offence in respect of a document produced or given in evidence in a proceeding in a court; and

(ii) the commission of such offence by a party to such proceeding.

The use of the words "in respect of" in the first ingredient would seem to some extent to enlarge the scope of this clause. Judicial opinion, however, differs on the effect and meaning of the words "to have been committed by a party to any proceeding in any icourt".

As cl. (b) of s. 195(1) dqes not speak of offence com milted by a party to the proceeding, while considering decisions on that clause this distinction deserves to be borne in mind Broadly speaking two divergent views have been expressed m decided cases in this connection.

According to one view, to attract the prohibition contained in cl. (CJ the offence should be alleged to have been committed by the party to the proceeding in his character as such party, which means after having become a party to the proceeding, whereas according to the other view the alleged offence may have been committed by the accused even prior to his becoming a party to the proceeding provided that the document in question is produced or given in evidence

in such proceeding.

The language used seems to us to be capable of either meaning without straining it. We have, therefore, to see which of the two alternative constructions is to be preferred as being more in accord with the legislative intent, keeping in view the statutory scheme and the purpose and object of enacting the prohibition contained in s. 195(1)(c).

In construing this clause we consider it appropriate to read it along with s. 476 Cr. P.C. which prescribes the procedure for cases mentioned in s. I 95(l)(b) and (c), also bearing in mind that under s. 476A a superior court is empowered to complain when the subordinate court has omitted to do so and that s. 476B confers on an aggrieved party a right of appeal from an order refusing to make a complaint under s. 476 or s. 476A as also from an order making such a complaint.

All these provisions, forming part as they do of the statutory scheme dealing with the subject of prosecution for offences against administration of justice, require to be read together and when so read would help us considerably in having a more vivid picture of the . legislative intendment in prescribing the prohibition in the two clauses of s. 195(!) and the procedure for initiating prosecutions for offences mentioned therein. Section 476 reads :

"476. Procedure in cases mentioned in section 195.-

( f) When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in section 195, sub-section (!), clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate :

Provided that, where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint.

For the purposes of this sub-section, a Presidency Magistrate shall be deemed to be a Magistrate of the first class.

SOMABHAI v. GUJARAT (Dua, J.)

(2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under section 200.

(3) Where it is brought to the notice of such Magistrate or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage adjourn the hearing of the case until such appeal is decided."

This section quite clearly postulates formation of judicial opinion that it is expedient to hold an inquiry into an offence referred to in cl. (b) or in cl. (c) of s. 195(!) which appears to the Court to have been committed either in' or in relation to a proceeding in that court. Offences mentioned in cl. (b), it may be recalled, would be covered by that clause even if they are alleged to have been committed in relation to a proceeding in a court, whereas those mentioned in cl. (c) should be alleged to have been committed by. a party to a proceeding in a court in respect of a document produced or give11 in evidence in that proceeding. Section 476, it is also noteworthy, empowers the court even suo motu to take up the question of expediency of making a complaint.

As a general rule, the courts consider it expedient in the interest of justice to start. prosf#:utions as contemplated by s. 476 only if there is a reasonable foundation for the charge and there is a reasonable likelihood, of conviction. The requirement of a finding aG to the expediency is understandable in case of an offence alleged to have been cominitted either in or in relation to a proceeding in that court in case of offences specified in cl. (b) because of the close nexus between the offence and the proceeding.

In case of offences specified in cl. (c) they are required to be committed by a party to a proceeding in that court with respect to a document produced or given in evidence in that court. The offence covered by s. 471 I.P.C. from the its very nature must be committed in the proceeding itself by a party thereto.

With respect to such an offence also expression of opinion by the court as to the expediency of prosecution would serve a useful purpose. It is only with respect to the offence described in

~- 463 I.P.C. and the offences punishable under ss. 475 or 476 I.P.C. that two 'Views are possible and therefore the effect of reading s. 195(1)(c) ands. 476 Cr. P.C. together has to be examined for discovering the true legislative intendment in respect of these offences.

The underlying purpose of enacting s. 195(1)(b) and (c) and s. 476 seems to be to control the temptation on the part of the private parties considering theniselves aggrieved by the offences

SUPRllME COURT REPORTS

[1971] SUPP. S.C.R.

mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the court's control because of their direct impact on the judicial process. It is the judicial process, in other words the administration pf public justice, which is the direct and immediate object or victim of these offences and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings cf the court is directly sullied by the crime the Court is considered to be the only party entitled to consider the desirability of complaining against the. guilty party. The private party designed ultimately to be injured through the offence against the administration ot public justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognized by s. 190 Cr. P.C. of the aggrieved parties directly initiating the criminal proceedings.

The offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to comjPlain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely Independent and frh jnquiry, satisfactorily consider by reference principally to its recrds the expediency of prosecuting the delinquent party. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in s. 195(1)(c) only to thosecases in which the offences specified therein were committed by a party to the proceeding in the character as such party.

It may be recalled that the superior court is equally competent under s. 476A Cr. P.C. to consider the question of expediency of prosecution and to complain and there is also a right of appear conferred by s. 476B on a person on whose application the Court has refused to make a complaint under s. 476 or s. 476A or against whom such a complaint has been made.

The appellate court is empowered after hearing the parties to direct the withdrawal of the complaint or as the case may be, itself to make the complaint.

All these sections read together indicate t.bat the legislature could not have intended to extend the prohibition contained ins. 195(1)(c) Cr. P.C. to the offences mentioned therein when committed by a party to a proceeding in that court prior to bis becoming such party. It is no doubt true that quite often-if not almost invariably-the documents are forged for being used or produced in evidence in court before the proceedings are started. But tlmt in our opinion cannot be the controlling factor, because to adopt that construction, documents forged long

SOMABHAI v. GUJARAT (Dua, J.)

before the commencement of a proceeding in which they may happen to be actually used or produced. in evidence, years later by some other party would also be subject to ss. 195 and 476 Cr. P.C. This in our opinion would unreasonably restrict the right possessed by a person and recognized by s. 190 Cr. P.C. without promoting the real purpose and object underlying these tw<> sections. The Court in such a case may not be in a position to satisfactorily determine the question of expediency of making a complaint.

We may now consider the decisions cited at the bar.

In Emperor v. Kuahal Pal Singh(') it was held by a Full Bench, of that Court that s. 195(1)(c) Cr. P.C. applies only to cases where an offence mentioned therein is committed by a party as such to a proceeding in any court in respect of a document which has been produced or given in evidence in such proceeding.

The words "committed by a party to a proceeding" in s. 195(1)(c) were interpreted in that case to mean "committed by a person who is already a party to a proceeding". The court in that case read. both s. 195 and s. 476 Cr. P.C. together because s. 195 was held to lay down the bar against the cognizance of certain offences and s. 476 the method for removing the bar. On the view taken by the court a complaint cannot be filed by a court under its inherent jurisdiction outside the provisions of s. 476 Cr. P.C.

In Hari Prasad v. Hans Raj(') a learned single Judge of the Allahabad High Court, dealing with the allegations made in a complaint under ss. 476 and 471 I.P.C. that a forged sale deed had been got executed and registered in pursuance of a criminal conspiracy amongst three opposite parties one of whom had filed an application for the mutation proceedings on the basis of the said forged deed observed that a close nexus was established between the conspiracy and its resulting in a forged deed and the subsequent filing of the mutation application on its basis, all ol' which form various links of the same chain. On this premise it was observed that cognizance of the offences was a bar on a private complaint under s. 195(l)(b) Cr. P.C. The learned Judge in the course of the judgment also said that even if it is held that the allegations made in the complaint disclose offences under ss. 467 and 471 I.P.C. as alleged therein and not under s. T93 I.P.C. their cognizance would be barred under s. 195(l)(c). The words "in respect of" were considered to be wide enough to include even a document which was prepared before the proceedings started in a court of law but was produced or given in evidence in that proceeding.

According to this decision, when a document is produced in a court or is given in evidence, it is for that court to decide whether it is genuine or forged ana if

(I) I. L. 11.. [1953] All. 804.

(2) A. I. 11.. 1966 All. \24.

a private party is allowed to lodge a complaint on the basis of that document describing it as forged and if that complaint is entertained without affording opportunity to the court before whom the document had been produced to give its opinion it would amount to forestalling its decision and is likely to foad to anomalous situation and also sometimes the contradictory findings by two competent courts. Incidently it may be pointed out that the earlier Full Bench decision of the Allahabad High Court was not cited in this case.

In Vivekanand v. State(') another single Judge of the Allahabad High Court observed that when the main finding is the one under s. 471 I.P.C .. namely, the finding of using a forged document as genuine and the other offences all flow from it, in the sense that if the charge under s. 471 fails, the charges for the other offences would also fail, none of which offences can in truth and substance be said to be of a distinct nature, the mere fact that ss. 406, 467 and 420 l.P.C. are also tacked on to the offence under s. 471 I.P.C. would not serve to take the case out of the scope and ambit of s. 195(i)(c).

In this case a forged vakalatnama was produced before the Compensation Officer for withdrawing certain amount.

The Compensation Officer was held to be a Court. Of the offence charged, viz. under ss .. 406. 420 and 467 I.P.C. along with s. 471 I.P.C., the first three sections were held to be cognate to s. 471 I.P.C.

In this case too the earlier Full Bench decision was not noticed and the learned single Judge followed an earlier Division Bench decision of that Court reported as Harl Nath Singh v. State(') In Hari Nath Singh's case('), distinguishing the decision of. this Court in Basr-ul-Huq v. State of West Bengal(') it was obiernd that offences under ss. 193 and 218 I.P.C. in that case were both barred. In Krishna Nair v. State of Kera/a(') a learned single Judge of the Kerala High Court observed that the words "when such offence has been committed by a party to any proceedings in any court" used in s. 195(l)(c) referred not to the date of the commission of the alleged offence but to the date on which the cognizance of the criminal court is invited and that when once a document has been produced or given in evi dence before a court the sanction of that court or perhaps of some other court to which that court is subordinate is necessary before a party to the proceedings in which the document was produced or given in evidence can be prosecuted notwithstanding that the offence alleged was committed before the document came into the court at a date when the person complained against was not a party to any proceeding in court. In this case reference was made to several decisions of various High Courts including some decisions of the Allahabad High Court prior to

(1) A. I. R. 1969 All. 189.

(3) A. I. R. 1953 S. C. 293.

(2) 1964 All. L. J. 467. (4)(1962) I Cr!. L. J. 340

SOMi\BHAI V. GUJARAT (Dua, J.) 845

the Full Bench. decision which was significantly not noticed.

The Full Bench of the Gujarat High Court in State of Gujarat

v. Ali Bin Rajak(') by majority held that under s. 195 (!) (c) Cr. P.C. sanction for prosecuting a party to a proceeding for an offence under s. 471 I.P.C. was not necessary in respect of a use made outside the court in which the document was subsequently used, as the bar to cl. (c) would apply only to those cases where the offences mentioned therein were committed in regard to the documents produced or given in evidence in proceeding .

The facts in the reported case were, that one Har Govind Kalidas had obtained a decree against Ali Bin Rajak of Junagadh from the court of a civil Judge, Junior Division, Visavadar, District Junagadh. Har Govind filed an execution application for recovering his decretal dues in the course of which the amount payable by the Mamlatdar, Dhari to the judgment-debtor under an annuity card was attached. Garnishee order was served on the Mamlatdar, Dhari.- Rajak thereafter appeared before the Mamlatdar and stated that he had paid the decretal amount to Har Govind.

The Mamlatdar required Rajak to produce the.- receipt which was produced on July 27, 1964. The receipt bore the date May 23, 1964, purporting to be signed by Har Govind.

Thereupon the Mamlatdar paid the amount due under the annuity card to Rajak and made a report to the Civil Court enclosing the receipt produced by Rajak. The Civil Court called upon Har Govind to show cause why the execution application should not be disposed of. Har Govind denied receipt of any amount from Rajak and alleged the receipt to be forged.

The Civil Court thereupon issued notice to the Mamlatdar requiring him to show cause why he should not be held up for contempt of.

court. The Mamlatdar regretted his action in making payment without the Civil Court's order arid explained how he relied upon

Rajak's word.

The Mamlatdar got the amount produced by Rajat: and forwarded the same to the Civil Court. The amount was produced by Rajak under protest and subject to his right to claim the same. Thereafter Har Govind lodged a F.I.R. with the police at Dhari and on completion of the investigation the P .S.I. sent a charge-sheet against Ali Bin Ra jak to the court.

The Magistrate finding prima facie case committed Rajak to the Sessions Court for trial. One of the charges was under s. 420 I.P.C. and the other Was under s. 471 I.P.C. The second charge with which alone the court was concerned was based on the allegation that Rajak had made use of the receipt dated May, 23, 1964, alleged to he forged before the Mamlatdar by producing the same before that officer on July 16, 1964.

The objection taken by Rajak was that by virtue of s. 195(1)(c) the court could not take cognizance of this case whereas on behalf of the prose-

(1) 9 Guj. Law Reporter I.

cution it was contended that the forged receipt had been produced before the Mamlatdar before its production in the civil court and, therefore, s. 195(1)(c) was inapplicable.

It was in this context that the majority of the judges held that no complaint by the court was necessary whereas one learned Judge took tine contrary view.

It appears to us that in the Gujarat case the use of the forged power of attorney before the Mamlatdar occurred while the execution proceedings were pending but since it was not this user which was the subject matter of the charge the majority of the Judges rightly held that thii was not barred by s. 195(!)(c). It was apparently not argued that the complaint of the Mamlatdar was necessary.

In State v. Bhlkubhai(') a Division Bench of the Gujarat High Court observed that s. 195(l)(c) Cr. P.C. would apply even when the person accused of the offence referred therein in respect of a document produced in a court was not a party to the proceeding in which the document was produced provided such offence was committed by him jointly with a person who was a party to the proceeding or provided the offence with which he is charged is the same as alleged to have been committed by the persons who were parties to the proceedings.

The Bench also observed that the words "party to a proceeding" are used in an abstract manner to indicate the only class or category of offenders.

It was further said that cl. (c) of s. 195(1) must be strictly construed because it encroaches upon the jurisdiction of the ordinary criminal courts empowered to punish offences under s. 195 and is engrafted by way of an exception to the ordinary powers of criminal courts.

It would, therefore, be improper to construe it in a manner which would restrict the jurisdiction of criminal courts unless the restriction is expressly provided for or necessarily follows.

Broadly speaking we are inclined to agree with the reasoning of the Allahabad Full Bench in Kushal Pal Singh's case(~.

This in our opinion reflects the better view.

The purpose and object of the Legislature in creating the bar against cognizance of private complaints in regard to the offences mentioned in s. 195(l)(b) and (c) is both to save the accused person from vexatious or baseless prosecutions inspired by feelings of vindictiveness on the part of the private complainants to harass their opponents and also to avoid confusion which is likely to arise on account of conflicts between findings of the courts in which forged documents are produced or false evidence is led and the conclusions of the criminal courts dealing with the private complaint. It is for this reason as suggested earlier, that the Legislature has entrusted the court, whose proceedings had been the

(I) A. I. R. 196S0uj. 70.

(2) J. L. R. [1953] All. 804,

SOl.tABHAI v. GUJARAT (Dua, l.)

target of the offence of perjury to consider the expediency in the larger public interest, of a criminal trial of the guilty party.

In this case the offence under s. 4 71 LP .C. is clearly covered by the prohibition contained in s. 195(!)(c) but the offence under s. 467 I.P.C. can in our view be tried in the absence of a complaint by the court unless it is shown by the evidence that the documents in question were forged by a party to the earlier proceeding in his character as such party, in other words, after the suit had been instituted.

The appeal is accordingly allowed in part, in the terms just stated. The lower court, we hope, will dispose of the case with due de5patck.

K.B.N.

Appeal allowed in part.

l

PATEL LAUIBHAI SOMABHAI

THE STATE OF GUJARAT

S. M. SIKRI

P. JAGANMOHAN REDDY

I. D. DUA, JJ.

sections 467 and 471

Penal Code

sections 467 and 471

Penal Code

section 195(1)(c)

Sections 195(l)(C), 476 and 476A

Code of Criminal Procedure

section 195(1)(c)

section 471

Penal Code

section 195(1)

section 467

Penal Code

Art. 134(l)

s. 195(l)(c)

ss. 467 and 471

I.P.C

ss. 467 and 471

I.P.C

s. 467

I.P.C

s. 34

I.P.C

s. 195(1)(c)

s. 195(1)(c)

Section 195

ss. 177 to 199B

Sections 177 to 189

ss. 190 to 199B

ss. 190 and 195

Section 190

s. 195

s. 190

sections 172 to 188

Indian Penal Code

section 463

section 471

section 475

section 476

s. 195(1)

s. 195(1)

s. 195(1)(c)

s. 476

s. 476A

s. 476B

s. 476

s. 476A

s. 195(!)

Section 476

section 195

section 195

section 200

s. 195(!)

Section 476

s. 476

s. 471

I.P.C

I.P.C

ss. 475

I.P.C

s. 195(1)(c)

s. 195(1)(b)

s. 476

s. 190

s. 195(1)(c)

s. 476A

s. 476B

s. 476

s. 476A

ss. 195 and 476

s. 190

s. 195(1)(c)

s. 195(1)(c)

s. 195

s. 476

s. 195

s. 476

s. 476

ss. 476 and 471

I.P.C

s. 195(l)(b)

ss. 467 and 471

I.P.C

I.P.C

s. 195(l)(c)

s. 471

I.P.C

s. 471

ss. 406, 467 and 420

s. 471

I.P.C

s. 195(i)(c)

I.P.C

s. 471

I.P.C

s. 471

I.P.C

ss. 193 and 218

I.P.C

s. 195(l)(c)

s. 195

s. 471

I.P.C

s. 420

I.P.C

s. 471

I.P.C

s. 195(1)(c)

s. 195(1)(c)

s. 195(!)(c)

s. 195(l)(c)

s. 195(1)

s. 195

s. 195(l)(b)

s. 4

s. 195(!)(c)

s. 467

I.P.C