MAHARASHTRA STATE ROAD TRANSPORT

CORPORATION

MANGRULPIR JT. MOTOR SERVICE (P) LTD., &: ORS.

April 29, 1971

[J. M. SHBLAT AND A. N. RAY, JJ.]

Motor Vehicles Act, 1939, ss. 46, 47, 57-Bombay Motor Vehicles Ru/'1, 1959-App/ications for permit-Power of Regipnal Tranport Authority to call for additional information and to publish it for objec tions-Qualifications of applicants to be considered as on date of app/ica ... lion for permit or as on date of consideration of applications.

Tho respondents were bus operators who applied for renewal of permits which were to expire on different dates between February 28, 1966 and September 30, 1966.

The Maharashtra State Road Transport Cor poration (appellant herein) applied for grant of substantive permits in lieu of the renewal applications made by the respondents.

On account of litigation the applications of the parties could not be decided for several D years. At the meeting of the Regional Transport Authority on July 29, 1970 when all the applications were placed for consideration on merits, a preliminary issue was raised on behalf of the appellant to the effect that in view of the unusually long time which had elapsed since the making of the applications in 1965-66 it had become necessary to call for and consider up to date information about all the applicants. The Regional Transport Authority directed all the applicants to file additional information relating to matters covered by columns 10 to 16 and 19 of the E .Prescribed form of the application by August 21, 1970 and directed their publication and invitation of objections thereon. All the applicants including the respondents tendered additional up to -date information about their operations in terms of the order of the Regional Transport Authority.

The additional information was pubUshed and objections thereto were received. The Authority posted all the applications for consideration on merit at a meeting due to be held on November 26, 1970. The res- F pendents meanwhile moved the High Court for an order on the Regional Transport Authority to forbear from taking into account up to date infor~ mation while judging the merits of the contending operators and to enjoin the said Authority to consider the applications only on the basis of the information originally filed in the year 1965-66. In appeal by special leave to this Court the questions for consideration were (i) whether the Regional Transport Authority had power to call for additional information as it did ; (ii) whether such additional information could be ordered to be G published ; and (iii) whether the Regional Transport Authority was bound to decide the applications on the basis of the qualifications of the ap. plicants originally given therein.

HELD: (i) In deciding the question of power of the Regional Transport Authority to call for further information it has to be borne in mind that the Regional Transport Authority shall, in considering an appllca H tion for permit, have regard among other matters to tho interests of the public generally, the advantages to the public of the service< to be provided, the adequacy of other passenger transport services, the operation 36-1 s.a. India/71

by the applicant of other transport services including those in respect of which applications from him for permits are pending, the benefit to any particular locality or location, likely to be afforded by the service. There fore in considering public interest if the Regional Transport Authority would find that the answers furnished by any applicant are not full and

complete., it will be constricting the exercise of the power of the Regional Transport Authority by denying it authority to ask for additional infor mation for full and detailed consideration of the applications in tho interest of the public.

No bard and fast rule can be laid down as to how the Regional Transport Authority will act or what the limitations of its powers will be. It is a statutory body. It is to exercise its powers in the public interest. Such public interest will have to be considered with regard to particular matters enumerated in s. 47 of the Motor Vehicles Act, 1939 and the particulars of an application are to be judged w11h reference to ss. 46 and 47 in particular of the Act.

Rule 68(6) of the Bombay Motor Vehicles Rules, 1959 also enables the State or the Region~ al Transport Authority, as the case may be, to require an applicant to appear before it and to withhold the consideration of the application f<Jr the permit until the applicant has so appeared in person if so required or by any recognised agent if so permitted, and until the applicant has furnished such information as may be required by the Regional Transport Authority in connection with the application. The words 'in connection with the application' are important. These words indicate that the Regional Transport Authority will have power to ask for further information.

In the absence of the Regional Transport Authority acting under corrupt motive or malafide or for any oblique purpose the discretion which is conferred on the Regional Transport Authority should not be undermined or restricted. ·

(ii) Under s. 57 of the Act the application is to be published in order to enable parties to submit representation in connection therewith.

In the present case in view of the fact that information was asked for with regard to specific columns of the application it could not be denied that the information was in connection with the application.

It was therefore within the competence of the Regionai Transport Authority \lnder s. 57 of the Act to publish the application or the substance thereof in order to enable the persons affected thereby to send their representations to the Regional Transport Authority. It would be in fulfilment of the objects and purposes of the Act a'nd advancement of public interest to ensure that the permit is granted to the most meritorious applicant.

Therefore it is all the more necessary to publish additional information in order to have the fullest materials on record for proper assessment and evaluation of the merits and demerits.

(iii) The High Court was in error in holding that the Regional Transport Authority would have to consider the respective qualifications of the applicants as on the date of their applications and not as on the date of the actual consideration by the Regional Transport Authority of the applications for the grant of permit.

Normally the Regional Transport Authority would consider the applications for the grant of permits with~ in a short time o.f the submission of the applications. If for any reason a long time has elapsed as in the present appeal, the Regional Transport Authority will have to consider the various matters enumerated in els.

(a) to (f) of s. 46 of the Act at the time of the consideration of the applications. The death or insolvency of an applicant since the filing of the application cannot be ignored. The public interest stands in the forefront.

ffiANSPORT CORP. V. MANGRULPIR LTD. (Ray, J.) 563

Maharashtra State Road Transport Corporation v. Babu Goverdhan A Regular Motor Service, & Ors., [1970] 2 S.C.R. 319, Dhani Devi v. Sant .Bihari & Ors., [1969] 2 S.C.R. 507 and A. S. Jalaluddin v. Balasubramaniar Bils Service (P) Ltd. C.A. No. 161/65 Dt. 31-10-1967, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 117 of 1971.

Appeal by special leave from the judgment and order dated November 20, 1970 of the Bombay High Court, Nagpur Bench in Special Civil Applica.tion No. 939 of 1970.

M. C. Chagla, Santosh Chatterjee and G. S. Chatterjee, for the apryeJlant.

B. R. L. Iyengar, M. N. Phadke, Naunit Lal, and Swaranjit .Sondhi, for respondents nos. 1 to 6.

The Judgment of the Court was delivered by

Ray, J.-This is an appeal by special leave from the judgment dated 20 November, 1970 of the Bombay High Court directing the Regional Transport Authority to dispose of the applications for stage carriage permits pending before it without a.ny further delay and without any further adjournment at the instance of any party whatsoever.

The principal questions for consideration in this appea.l are; first, whether the Regional Transport Authority has power to call for further or additional information from the applicants for the grant of permit at the time of consideration of the a.pplications for the grant of permits under the Motor Vehicles Act, 1939 hereinafter referred to as the Act and secondly whether the Regional Transport Anthority will consider the qualifications of the applicants as on the date of the considera.tion of the applications for grant of permits.

The respondents are private operators. They held substantive permits on various routes. They applied for renewal of permits which were to expire on different dates between 28th February, 1966 and 30th September, 1966. The appellant applied for grant of substantive permits in lieu of the renewal applications made by the respondents.

While those applications were pending before the Regional Transport Authority, Nagpur, some private operators on different routes made a.n application under Article 226 of the Constitution challenging the, validity of the direction of the State Transport Appellate Tribunal to the Regional Transport Authority to allow the State Transport Corporation an applica.nt for the grant of

permit to furnish complete information in respect of columns 10.

14 and 15 on the prescribed form of their application for grant of permit. The Nagpur Bench of the Bombay High Court by judgment and order dated 5 October, 1967 quashed the order of the State Transport Appellate Tribunal by holding that the appli cation filed by the State Transport Corporation in that case was defective and the Appellate Committee had no jurisdiction to give the State Transport Corporation a fresh opportunity to furnish additional particulars.

An appeal was preferred from the judgment of the High Court to this Court being Civil Appeal No. 1297 of 1968 : Maharashtra State Road Transport Corporation v.

Babu Goverdhan Regular Motor Service & Ors.

This Court on 10 September, 1969 held that the Regional Transport Authority would be acting within its jurisdiction in calling upon an applicant to give more complete details and to give an opportunity to the other parties to state their objections.

During the pendency of appeal in the case of Babu Goverdhan Regular Motor Service, the respondents except respondent No. 4 moved the High Court by Writ Petitions in the year 1969 for hearing of their applications for grant of permit. Those Writ Petitions were disposed of by the High Court by consent order dated 20 March, 1969 by which it was agreed that till the decision of this Court in Babu Goverdhan Regular Motor Service, the renewal applications of the respondents a.nd the applications of the appellant in lieu of renewal would be postponed for consideration.

After the decision of this Court in Babu Goverdhan Regular Motor Service the Regional Transport Authority held a meeting on 28 October, 1969 to consider the applications. The appellant at that meeting sought permission to file additional information in the light of the above decision of this Court. The Regional Transport Authority adjourned the proceeding till 27 November,

1969. At the meeting held on 27 November, 1969 respondent No. 6 contended that the Regional Transport Authority must, before proceeding to consider that a.pplication, fix the limit of the number of permits under section 47(3) of the Act.

This step was to be taken before consideration of the applications for the grant of permit. The Regional Transport Authority postponed the consideration of the applications and fixed the next meeting on 12 December, 1969, so that it would comply with the provisions of section 47(3) of the Act. No meeting could however be held for want of quorum a.nd the next meeting was fixed for 8 January,

1970.

The appellant meanwhile by a letter dated 29 December, 1969 addressed to the Regional Transport Authority gave additional information in respect of columns 10, 11, 12, 14 and 15 of the prescribed form and ca-lled upon the Regional Transport Authority to publish the said infQrmation to enable the contending or competing operators to file objections. The appellant gave up to date information in order to enable the Regional Transport Authority to judge the respective merits of the applicants which, according to the appellant, could not be done on the basis of information furnished in the agplication filed in the year 1966. The appellant simultaneously furnished copies of the additional infor

mation to the respondents who were the private operators.

At the meeting of the Regional Transport Authority on 21 March, 1970 the a, ppellant requested the Regional Transport Authority for publication of the additional information. The Regional Transport Authority acceded to the request and directed the Secretary 'of tlie Regional Transport Authority to publish additional information.

Some of the respondents who had initially objected to the receipt and publication of additional information ultimately withdrew the objections.

At about the time of the application of the information one of the respondents applied to the High Court for an order that the Regiona•I Transport Authority was unduly delaying consideration of the applications on merits. The High Court by an order dated 30 April, 1970 directed the Regional Transport Authority to <:ommence consideration of the applications as expeditiously as possible and within two months from the date of the order. The High Court further observed that the applica, tions for the grant of permits were ripe for hearing and it was not the stage at all for publishing any information which the appellant might have lodged with Qie Regional Transport Authority. The High Court took the view thait the Regional Transport Authority might call for additional information but it was not the case there because the appellant of its own sent additional information and it amounted to an amendment of their a, pplication which was not permissible under the Act and also in view of the decision of this Court in Babu Goverdhan Regular Motor Service case(').

The Regional Transport Authority held the meeting on 29 July, 1970 and all the applications were placed for consideration on merit. At th&t meeting a preliminary issue was raised on behalf of the appellant on the basis of an application filed on 23 July, 1970 with the Regional Transport Authority to the effect that in view of the unusally long time which had elapsed since the making of the applications in the year 1965-66 for the grant of .permits it had become necessary to call for and consider up to

(I) 1191012 s.c.R. 319.

date information about all the applicants. The Regional Transport Authority directed all the a, pplicants to file additional information relating to matters covered by columns 10 to 16 and 19 of the prescribed form of the application by 21 August, 1970 and directed their publication and invitation of objections thereon.

All the applicants including the respondents tendered additional up to date information about their operations in terms of the order of the Regional Transport Authority. Additional information was published.

Objections thereto were received.

The Regional Transport Authority posted all the applications for consideration on merit at a meeting due to be held on 26 November.

1970.

The respondents meanwhile moved the High Court for an order on the Regional Transport Authority to forbear from taking into account up to date information while judging the merits of the contending operators and to enjoin the Regional Transport Authority to consider the applications only on the basis of the information origina, lly filed in the year 1965-66, and not on the basis of any up to date information.

The High Court by judgment and order dated 20 November, 1970 directed the Regional Transport Authority to dispose of all the applications at the meeting on 26 November, 1970 and not to postpone consideration and disposal of the applications on any ground whatsoever.

This is the judgment out of which the present appeal arises.

The High Court held that applications filed under section 46 of the Act could not be permitted to be amended and calling for additional information by the Regional Transport Authority would have the effect of granting amendment of applications.

Secondly, the High Court held that the order of the Regional Transport Authority dated 29 July, 1970 virtually permitted amendment of the applications by the private operators as well as by the appellant and this course was contrary to law and was. opposed to the previous directions given by the High Court on 30 April, 1970 to the Regional Transport Authority, to dispose of the applications within two months.

Thirdly, the High Court held that the Regi<>- nal Transport Authority had to consider the respective qualifications of the applicants as on the date of their applications and not as on the date of the actual consideration by the Regional Transport Authority.

Fourthly, the High Court held that while considering the applications the Regional Transport Authority under section 47 of the Act could call for such specific information as it needed from a particular applicant, but in the present case fulr information from all. the applicants had already been called for and was now on the record of the Regional Transport Authority and therefore the Regional Transport Authority should dispose of the applications pending before it for five years without further delay.

The first question which falls for consideration is whether the Regional Transport Authority can call for further or additional information from the applicants.

The applications for stage carriage permit are to contain particulars mentioned in section 46 of the Act and in clauses (a) to (f) thereof which are as follows :-

"Application for stage carriage permit.-An application for a permit in respect of a service of stage carriages or to use a particular motor' vehicle as a stage ca, rriage (in this Chapter referred to as a stage carriage permit) shall, as far as may be, contain the following particulars namely:-

(a) the route or routes or the area or areas to which the application relates ;

(b) the number of vehicles it is proposed to operate in relation to each route or area and the type and seating capacity of each such vehicle ;

(c) the minimum and maximum number of daily trips proposed to be provided in relation to each route D or area and the time table of the normal trips ;

(d) the number of vehicles intended to be kept in reserve to maintain the service and to provide for special occasion ;

(e) the arrangements intended to be made for E the housing and repair of the vehicles, for the comfort and convenience of passengers and for the storage and safe custody of luggage ;

(fl such other matters as may be prescribed."

An applicatit>n for stage carriage permit is under the Bombay Motor Vehicles Rules 1959 to be made in the form prescribed by rule 80 and described as form P. St. S. A. The prescribed fom1 of the application contains 22 columns.

In the. present appeal, the columns which are relevant for consideration are columns 10 to 16 and 19. These columns are as follows:-

"IO. Number of vehicles kept in reserve to maintain the service regularly and to provide for special occasion ...................... ..

11. Arrangements made for housing and repair of vehicles (to be given in detail) ................................ .

12. Arrangements made for convenience and comfort of passengers ...... , .................................. .

13. Arrangements made for storage and safe custody of luggage ..................................................... .

14. Particulars of any stage or contract carriage permit valid in the Sta.te, held by the applicant.. .............. ..

15. Particulars of any permit held by the applicant B in respect of the use of any transport vehicle in any other

State ............................. .

16. Whether any of the permits stated above has been subject of an order of suspension or cancellation in la't four years. If so, give details ............................... ..

I 9. I am at present in possession of .................... . vehicles available for use under the permit applied for."

Section 47 (!) of the Act which deals with the power of tl!.e Re1ional Transport Authority to grant permits is as followi : -

"Procedure of Regional Transport Authority in considering application for stage carriage permit:(!) A Reio

nal Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters, namely ;

(a) the interests of the public generally ;

(b) the advantages to the public of the service to be provided including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken ;

(c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the placea to be served ;

(d) the benefit to any particular locality or localities likely to be afforded by the service ;

(e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending;

(f) the condition of the roads included in tli• proposed route or area ;

and shall also take into consideration any representations made by persons already providing passenger transport facilities by any means alon!l or near the proposed route or area, or by any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government,

or by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies;

Provided that other conditions being equal an application for a stage carriaige permit from a co-operative society registered or deemed to have been registered under any enactment in force for the time being shall, as far as may be, be given preference over applications from individual owners."

The other section relevaat for purposes of grant ot permits Ii section 57 of the Act which deals with the procedure of the Regional Transport Authority in considering applications for stage carriage permit. There are JO sub-sections of section 57. The two important sub-sections for the purposes of the present appeal are icction (2) and (3). Sub-section (2) deals with the time for making applications for grant of permits.

No dispute arises on that subsection in the present appeal. Sub-s. (3) provides that on receipt of an application for stage carriage permit the Regional Transport Authority shall make the application available for inspection "at the office of the Authority and shall publish the applications or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date, not being less than thirty days from such publication on which, and the time and place at which, the application and any representations received will be considered.

The only question which arises on sub-section (3) of section 57 of the Act in the present appeal is whether further or additional information as may be called for by the Regional Transport Authority will also have to be published.

In the case of Babu Goverdhan Regular Motor Service(') this Court held that the form prescribed by the Rules requiring the furnishing of information on the. various particulars and matters referred to therein was valid and section 46 of the Act, Rule 80 of the Bombay Motor Vehicles Rules and the prescribed form would all have to be read together in order to find out the i; cheme of the Act on the question of power of the Regional Transport Authority to ask for full and complete infonnation.

Section 46 of the Act which deals with applications for stage carnage pennit enumerates the particulars to be given in the applications.

The prescribed. form is with reference to these particulars. In the case of Babu Goverdhan Regular Motor Service(') the

State Transport Corporation in filling up columns 14 and 15 with regard to particulars of stage or contract carriage pennits held by the applicant in the State and in any other State did not give full particulars of pennits and ended by using the word "et cetera". The

<1l (191012 s.c.~. 319.

SUPRBMB COURT RBPORTS [1971] SUPP. s.c.R •.

High Court in the case of Babu Goverdhan Regular Motor Service beld that the a.pplication of the appellant in that case was invalid because the application did not give full and complete details in respect of columns 14 and 15. This Court held that the applicant in that case should have given an exhaustive list of the other permits held by it in the State or in any other State and therefore the State. authorities could call upon a party to give complete details. The High Court in the present case expressed the view that giving of details would amount to an amendment of the application and that this Court in the case of Babu Goverdhan Regular Motor Service(') held that there could be no amendment of an application.

The decision of this Court is not to thateffect. If particulars will be furnished these particulars will become part of the application.

The application is to that extent amended.

In deciding the question of power of the Regional Transport Authority to call for further information it has to be borne in mind that the Regional Transport Authority shall, in considering an application for permit, have regard among other matters to the interests of the public generally, the advantages to the public of the services to be provided, the adequacy of other passenger transport services, the operation by the applicant of other transport services including those in respect of which applications from him for permits are pending, the benefit to any particular locality or Iocailities likely to be afforded by the service. Therefore in considering public interest if the Regional Transport Authority would find that the answers furnished by any applicant are not full and complete, it will be constricting the exercise of power of the Regional Transport Authority by denying it authority to ask for additional information for full and detailed consideration of the applications in the interest of the public.

No bard and fast rule can be laid down as to how the Regional Transport Authority will act or what the limitations of their powers will be. It is a statutory body. It is to exercise statutory , powers in the public interest.

Such public interest would have to be considered with regard to particular matters enumerated in section 47 of the Act and the particulars of an application are to be judged with reference to sections 46 and 47 in particular of the Act.

Reference may also be made to rule 68(6) of the Bombay Motor Vehicles Rules which enables the State or the Regional Transport Authority, as the case may be, to require an applicant to appear before it and to withhold the consideration of the application for the permit until the applicant has so appeared in person if so required or by any recognised agent if so permitted. and until the applicant has furnished such informa-. tion as may be required by the Transport Authority in connection with the application. The words "in connection with the application" are important. These words indicate tha.t the Regional

co [1970J 2 s.c.R, 319.

Transport Authority will have power to ask for further informa- A tion.

In the present case, on 29 July, 1970 the Regional Transport Authority found that the applications which had been submitted in the year 1965-66 would hardly represent the real merits of the operators in the year 1970.

The Regional Transport Authority therefore directed the applicants to file additional information relating to matters covered by columns 10 to 16 and 19 of the prescribed form.

The further direction was that the information would be filed before 21 August; 1970, and would be published and objections woul~ be called for within 15 days from the date of publication.

Counsel for the respondents submitted that the information supplied by the applicants tiursuant to the direction of the Regional Transport Authority would be voluminous and the publication would take a Jong time.

Under section 57 of the Act the application is to be published in order to enable parties to submit representation in connection therewith.

Publication therefore is a statutory obligation.

In view of the fact that information was asked for with regard to specific columns of the appli cation it cannot be denied that the information was in connection with the application.

It will therefore be within the competence of the Regional Transport Authority under section 57 of the Act to publish the application or the substance thereof in order to enable the persons affected thereby to send their representations to the Regional Transport Authority.

The Regional Transport Authority is entrusted by the statute to consider the applications for the grant of permit.

Applications are on a printed form. _ It will be in the interest of the applicants to furnish all information.

If however for any reason, the Regional Transport Authority will require further information, it will depend upon Q!e facts and circumstances of each case as to whether F the power is exercised bona fide, and whether the discretion that is conferred on the Regional Transport Authority is exercised properly and judiciously.

In the absence of the Regional Transport Authority acting under any corrupt motive or mala fide or for any oblique purpose the discretion which is conferred on the Regional Transport Authority should not be undermined and restricted.

The High Court was in error on the second question in holding that the Regional Transport Authority would have to consider the respective qualifications of the applicants as on the date gf their applications and not as on the date of the actual consideration by the Regional Transport Authority of the applications for the H grant of permit.

Normally, the Regional Transport Authority would consider the applications for the grant of permits within a short time of the submission of the applications. If for any reason,

SUPRl!llB COURT REPORTS [1971] SUPP. s.c.I\.

a Jong time elapses as in the present appeal, the Regional Transport Authority will have to consider the various matters enumerated in clauses (a) to (f) of section 46 of the Act at the time of consideration of the applications for the grant of permits. The public interest stands in the forefront. If the Regional Transport Authority will find that the applicant has become insolvent subsequen' to the submission of the application it cannot be expected that the Regional Transport Authority will yet have to grant a permit to the insolvent applicant.

In refusing the grant of permit the solvency of the applicant \\(ill enter the area of appreciation and assessment of the merits and demerits of the applicant.

Again, if an applicant died subsequent to the submission of the application the Regional Transport Authority will have to consider at the time of the grant °l permit whether it will allow the heirs or legal representatives to stand in the shoes of the deceased &pplicant.

This question arose before this Court in Dhani Devi v.

Sant Bihari & Ors. ('). This Court held that the Regional Transport Authority would have power to substitute the heirs I successors in place of the deceased applicant in the records of the proceedings and allow the successors to prosecute the application.

In the unreported decision of this Court in A. S. Jalaluddin v.

Balasubramaniar Bus Service (P) Ltd. and A nr.(') the Regional Transport Authority refused to grant permit to an applicant on the ground that he did not have either main office or branch office or residence on the route applied for. The applicant preferred an appeal to the State Appellate Tribunal. The Tribunal set aside the order and granted the permit to the appellant. Before the Tribunal the appellant's counsel in that case stated that the applicant had sent to the Regional Transport Authority in advance of the date fixed for consideration of the application for the grant of permit a letter stating that the appellant had secured a branch office on the route in question.

The finding of the Tribunal was challenged by writ petitions in the High Court.

The learned Single Judge of the High Court held that the finding of the Tribunal could not be challenged but the Division Bench held that the finding of the Tribunal as to possession of branch office and residence on the route by the appellant was without evidence.

This Court set aside the Bench decision of the High Court and restored the judgment of. the learned Single Judge by holding Iha~ there was material before the Tdbunal that the appellant had secured a branch office.

This decision establishes two propositions: First, that an applicant can furnish additional or further information in connection with the application before the Regional Transport Authority and secondly that the Regional Transport Authority is competent to

(I} (1969] 2 S.C.R.. 507. (2) c. A. No. 161 of 1965 decided on 31-10-1967.

TRA~PORT CORP. V. MANORULPIR LTD. (Ray, J.) 573

act on such information at the time of consideration of the appli A cations for the grant of permits. It will always have to be found out in the facts and circumstances of each case as to the nature of information, the manner of furnishing it in order to decide whether the Regional Transport Authority was entitled to ask for such information and the applicant was entitled to furnish it.

1f the Regional Transport Authority will have at the date of the consideration of the grant of permit information which may disentitle the applicant by reason of conviction, insolvency, loss of fleet, lack of facilities, or any subsequent event of importance as would affect the grant of permit to an applicant, it would be in ful

filment of the objects and purposes of the Act and advancement of public interest to ensure that the permit is granted to the most meritorious applicant.

Therefore it is all the more necessary to publish additional information in order to have the fullest materials on record for proper assessment and evaluation of the merits and demerits.

The High Court was wrong in directing the Regional Transport Authority to proceed on the basis of applications submitted in the year 1965-66.

The Regional Transport Authority will dispose of the applications on the basis of further information forwarded by the applicants and published by the Regional Transport Authority and representations by parties in connection therewith as expeditiously as possible.

The obvious need not be stressed that long time has elapsed and the Regional Transport Authority should proceed in accordance with law without further delay. The appeal is accepted.

The judgment of the High Court is set aside.

Each party will pay and bear their own costs.

G. C.

Appeal allowed.

A. N. RAY, JJ.

Motor Vehicles Act, 1939

ss. 46, 47, 57

s. 47

Motor Vehicles Act, 1939

ss. 46 and 47

Bombay Motor Vehicles Rules, 1959

s. 57

s. 57

s. 46

[1970] 2 S.C.R. 319

[1969] 2 S.C.R. 507

Motor Vehicles Act, 1939

Article 226

section 47(3)

section 47(3)

section 46

section 47

section 46

Bombay Motor Vehicles Rules 1959

Section 47

section 57

section 57

section 57

section 46

Section 46

section 47

sections 46 and 47

section 57

section 57

section 46


ARUN RANJAN MUKHERJEE v.

UNION OF INDIA & ORS.

April 29, 1971

[S. M. SiKRI, C. J., G. K. MITTER, C. A. VAIDIALINGAM,

P. JAGANMOHAN. REDDY AND I. D. DUA, JJ.]

Indian Police Service (Regulation of Seniority) Rules 1954, r. 3(3)(b) -Fixation of year of allotment-Officer recruited directly to Indian Police in 1945 is not direct recruit for purpose of main part of r. 3(3) (b)- First proviso to r. 3(3)(b) does not relate only to 'joint cadre'-Court must not interfere with discretion of Central Government to fix year of allotment on ad hoc basis under first proviso,

The appellant joined the Indian Army as a Commissioned Officer in 1942.

He became a Major in 1945. The appellant's services were lent to the State of West Bengal and accordingly on 10-1-1949 the appellant was posted as Commandant of the Special Police Battalion, a post corresponding to a senior post in the Indian Police Service.

The appellant with bis consent, was appointed to the West Bengal State Police Service on 1'7-1953. On 8th September 1954 the Indian Police Service (Recruit ment) Rules, 1954, Indian Police Service (Cadre) Rules, 1954 and tbe

Indian Police Service (Regulation of Seniority) Rules 1954 were framed by the Government of India under s. 3 of the All India Services Act 61 of 1951.

On 6th June 1955 the Indian Police Service (Appointment by Promotion) Regulations 1955 were also issued under which 25% of the senior posts were allotted to the Indian Police Service cadre in each State.

The appointment of the appellant was outside this quota. On 31st Ju)y 1958 the appellant was appointed on probation in the State Cadre of West Bengal.

In December 1959 he was substantively appointed to a senior post in the Indian Police Service and confirmed thereon with effect from 21st July 1958.

In December 1958 the Ministry of Home Affairs conveyed to the Government of West Bengal its decision to fix the pay of the appellant in the senior scale of the Indian Police Service notionally from 10-1-1949, the date from which he held an Indian Police Service Cadre post continuously. On 19th January 1960 the Indian Police Servi.cc (Seniority of Special Recruits) Regulations 1960 were framed pursuant to r. 5-A of the Seniority Rules. On 11-10-1960 the Government of India in consultation with the Union Public Service Commission decided to allot to the appellant the year 1948. The year of allotment was subsequently changed to 1947 on the basis that the officiation of the appellant as well as that of the junior most direct recruit, in a senior scale did not start before 19th 1'.1ay 1951. The appellant filed a writ petition under Art. 27.6 of the Constitution. The Single Judge, allowing his petition, held that the date from which the appellant continuously officiated was 10-1-1949 and that accordingly the year 1943 allotted to D the Juniormost direct recruit, should olso be allotted to the appellant.

The learned Judge also hold that the first and second provisos to r. 3(3) (b) of the Senioritv Rules were not applicable to the appellant. The Division Bench in appeai agreed with the Single Judge, that the date of continuous officiation of the appellant was 10-1-1949. But the High Court thought that the year 1947 allotted to the appellant on the basis of his officiation from 19th May 1951 could not be sustained because the latter date had been held by this Court to be irrelevant in Nim's case. Non-the-less the year of allotment 1948

A. R. MUKHBR!Bll v. UNION (Jagan mohan Reddy, J.)

assigned to the appellant in the order of 11th October 1960 was sustained because it was on an ad hoc basis. Against the High Court's order the appellant appealed to this Court by certificate. His contentions were:

(i) that under the main clause of r. 3(3). (b) of the Seniority Rules the year 1943 should be allotted to him as the said year had been allott<d to D lhe juniormost direct recruit; (ii) that the first proviso to r. 3(3)(b) did not apply to him as it applied only to those .in the joint cadre; (iii) that this Court should deduct the 'P' factor from the date of officiation which as held by the High Court was 10th January 1949 and allot to hlm the year

1943 as the year of allotment. Dismissina the appeal, ·

HELD: (i) D was an Indian Police Officer recruited in 1945. He became a member of the Indian Police Service under sub-r. (l) of r .. ' of the Indian Police Service (Recruitment) Rules 1954 on the date when the .aid Rules came nto force in 19541 and was not an officer recruited to the service in accordance with r. 7 of those Rules. The year of allotment assigned to D was not therefore available to the appellant under the main part of r. 3(3) (b).

(ii) The first proviso to r. 3 nowhere refers or even remotely indicates that it is only applicable to the persons in the joint cadre. In fact r. 2(1) of the Seniority Rules and the words 'State cadre' and 'joint cadre' have been <iefined as having the meaning respectively assigned to them in the Indian

Police Service (Cadre) Rules, 1954.

By reference to r. 7 of the Cadre Rules it is, apparent that what is to be determined is the authority which is to appoint, to .the respective cadres i.e. in the case of State Cadre it is the State Government and in the case of Joint Cadre it is the State Government conCerned. The first proviso does not refer to any appointment. to any cadre; it only deals with Regulation of Seniority and the reference to State Government concerned is for the purpose of ftxina the date of officiation ad hoc in consultation with the Central Government.

WhP.:n there are several State Governments the consultation by the. Central Government must necessarily be with the. State Government concerned in rela tion to the officer who is appointed to the cadre of that State. Whether the first proviso applies or the second proviso applies, it is the Central Government that has to determine ad hoc, the year of allotment after approving the period of officiation in consultation with the Public Service Commission.

(iii) In view of the judgment in Nim's case the order assignillg 1947 as the year of allotment to the appellant on the basis of an arbitrary date of officiation namely 19th May, 1951 was bad and had been quite properly struck down by the High Court. The High Court however had no power to direct the. year 1948 to be fixed as the year of allotment for the determination of the seniority of the appellant. on the basis that that was fixed on an ad hoc basis in an earlier occasion by the Government of India.

Once the Government of India had on a meniorial presented by the Appellant decided .finally in supersession of its previous decision that his year of allotment was 1947, the previous decision fixed on ad hoc basis could not be revived. It was for the Government of India in consultation with the Commission to determine ad hoc the year of allotment to be assigned to the appellant in re1ation to the date of his continuous officiation. This Court would not trespass upon the jur'sdiction of the Government of India to determine ad hoc in consultation with the Cornmision, on a consideration of the relevant materials, the date of the appellant's continuous officiation and assign him an year of allotment.

D. R. Nim v. Union of India, [1967] 2 S.C.R. 325, applied.

SUPRBMI! COURT REPORTS . (1971] SUPP. s.c.R.

A CIVIL APPELLATE JURISDICTION ; Civil Appeal No .. 1943 of

1969. .

Appeal from the judgment and order dated December 22, 1967 of the Calcutta High Court in Appeal from Original Order No. 551 of 1966.

The appellant appeared in person.

Jagdish Swarup, Solicitor-General, Ram Panjwani and S. I'.

Nayar, for respondent No. 1.

M. C. Chagla, D. N. Mukherjee, G. S. Chatterjee for Sukumar Basu, for respondent No. 2.

The Judgment of the Court was delivered by ·

P. Jaganmohan Reddy, J~ This Appeal is by certificate against the judgment of a Division Bench of the Calcutta High Court dismissing the application by the Appellant under Article 226 of the Constitution of India.

The Appellant who is an Indian Police Service Officer holding a senior post in that service made an application to fix his year of allotment in the service which the Government of India ultimately fixed as 1947. With this fixation the Appellant is aggrieved.

The brief facts which may be necessary for consideration of the matters in issue are that the Appellant was Commissioned as an Officer of the Indian Army on the 12th April 1942. He was promoted to the rank of a Major on or about !st April '45. On

10-1-1949 the State of West Bengal feeling the need of a Bengali Officer to serve in the Special Armed Police requested the Army for the services of the Appellant which the Ministry of Defence agreed to lend. The Appellant was relieved from the Army r.nd posted as a Commandant of the Special Armed Police Battalion on 10-1-1949, which post corresponded to a senior post in the Indian Police Service.

There is no dispute that his services werelent and that he took charge on the 10th January '49 or th31! the post of a Commandant in the Special Armed Battalion was in the senior scale of Indian Police Service.

While serving in this .capacity the Government expressed a desire to absorb him and on the Appellant's showing his willingness to be so absorbed, he was appointed to the West Bengal State Police Service on 1-7-1953. On the 8th September 1954, the Indian Police Service (Recruitment) Rules, 1954, Indian Police Service

(Cadre) Rules, 1954 and Indian Police Service (Regulation of Seniority) Rules, 1954 were framed by the Government of India under

su!Hection (1) of Section 3 of All India Services Act LXI of

A. R. MUKHERJEE v. UNION (Jaganmohan Reddy, J.)

195 l (hereinafter called "the Recruiiment Rules", "the Cadre Rules" and "the Seniority Rules" respectively). On 6th June 1955 the Indian Police Service (Appointment by Promotion) Regulation 1955, were also issued under which 25% of the senior posts were allotted to the Indian Pol\ce Service Cadre in each State. It is also not disputed that the appointment of the Appellant was outside the 25% quota.

On 31st July 1958, the Apelian! was appointed un probation in the State Cadre of West Bengal.

On 8th/ 17th December 1959 he was substantively a1>pointed to a senior post in the Indian Police Service and confirmed thereon with effect from 21st July 1958. 'On the 19th December 1958, the Ministry of Home Affairs, New Delhi, by its letter to the Chief Secretary to the Government of West Bengal conveyed its decision to fix the pay of the Appellant in the senior scale of the Indian Police Service notionally from 10-1-1949 the date from which he held an Ii:tdian Police Service Cadre post continuously.

Inasmuch as no order of allotment was given to the Appellant and the seniority was not fixed at the time of his confirmation, the Appellant made a representation on the 3rd November

1958 for fixation of his seniority and granting of 1943 as the year of allotment in the Indian Police Service Cadre, under Rules and Regulations of the service.

To this he received a reply on 31st March 1959 from the Assistant Secretary to the Government ot West Bengal informing that it is not possible for him to accede to the request of the Appellant contained in his representation.

Thereafter the Appellant seems to have taken up the matter again by his letter of 30-4-1959 and 22-8-1959 but there was no reply thereto. On 19th January 1960 the Indian Police Service (Seniority of Special.Recruits) Regulations 1960 were framed persuant to Rule 5-A of the seniority Rules. On 11-10-1960 the Government of India on a. reconsideration and in consultation with the Service Commission finally decided to allot to the Appellant the year 1948 enclosing a letter of the first Respondent dated 14-1-1963. Thereafter a memorial was presented to the President of India on 2-12-1960 asking for 1943 as the year of allotment to which the Appellant received a reply on 12-2-1963.

In this letter dated 12-2-1963 the Assistant Secretary to the second Respondent the State of West Bengal informed him of the decision of the Government of India as under :

"The Government of India have decided that the seniority of Shri A. R. Mukherji may be revised taking into account his officiation in senior cadre post from 19th May 1951.

Since direct recruits borne on the I. P. S. cadre post of the West Bengal did not start officiating in a senior scale before this date (19-5-1951), Shri Mukherji's case will be decided ad hoc under Reg. 3 of the I. P. S.

37-1 S.C. lndia/7 I

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

(Seniority of Special Recruits) Regulations read with the first proviso to Rule 3(3) (b) 1954.

As the 'P' Factor in the West Bengal was 4 years 19 days, Shri Mukherji may be allotted, in modification of this Ministry's letter ........ . to the year 1947".

Being aggrieved by the assignment of the allotment year 1947 the Appellant by his letter dated 1st July '63 made a representation to which he received a reply on 7th November 1963 enclosing a copy of letter dated 11th October '63 of the !st Respondent the Union of India, informing him that his representation was rejected. Thereupon he filed a Petition under Article 226 in the High Court of Calcutta.

A Single Judge held that under the main Rule 3(3) (b) of the seniority Rules the date from which the Appellant continuously officiated is 10-1-1949 and accordingly having regard to the fact that Shri P. Dhar who was the juniormost direct recruit, the year of allotment given to him viz. 1943 also should be allotted to the Appellant.

The learned Judge also held that neither the 1st proviso nor 2nd proviso to r. 3(3) (b) is applicable to the Appellant.

While the Division Bench in appeal lllgfeed with the Single Judge that the date of continuous officiation of the Appellant was 10-1-49,' it held that iii the circumstances the year of allotment which was required to be determined by the Government of India had to be decided on an ad hoc basis.

But since the date 19th May 1951 fixed as the date of officiation was struck down by this Court as arbitrary in D. R. Nim v. Union of India('), the High Court thought that the year 1947 allotted to the Appellant on the basis of his officiating from 19th May 1951 could not be sustained, nonetht>-less the year of allotment 1948 assigned to the Appellant in the order of I Ith October 1960 was sustained because it was on an ad-hoc basis. It was however observed by the Bench that in respect of inter-se seniority as they are not in a position to say whether the order of 11th October '60 in so far as it fixes the seniority of officers complies with. the requirements of Regulation of 1960, interest of justice required that they should strike down that portion of the order and ask the Government of India to make a new decision in the light of the principles they have indicated. In the result the Appeal was allowed and it as declared that the year of allotment 1948 was correctly assigned to the Appellant and accordingly the Government of India was directed to fix the seniority of the special recruits in accordance with Regulation 4 of the Seniority of Special Recruits Regulations 1960.

The short question in this Appeal which has been argued at some length by the Appellant personally is to ascertain the Rule ----------

(I) [196712 S.C. R. 325.

A. It l\lUKHERJEll .. UNION (Jaganmohan Reddy, J.) 579

which is applicable in determining what year of allotment should A be assigned to him.

A brief history of the All India Police Services would facilitate an understanding of this question.

There was prior to 1946 a Secretary of State Service known as the Indian Police (IP).

When India was to attain Independence an agreement was arrived at between the British Govermnent and the Central Govermnent with the concurrence of a number of Provincial Govermnents to constitute another service on the 21st October '46 known as the Indian Police Service (IPS).

Recruit ment to this latter service began on and after the 15th August '47 when India attained Independence and subsequently on 23-1-1950, three days before India was declared a Republic on 26th January '50, the Governor General in consultation with the Provincial Governments promulgated rules for framing a Cadre for Police Officers known as the Indian Police Service (Cadre) Rules 1950 which came into force on that date. After 26-1-1950 Article 312 governed the All India Services.

Under clause (1) of the Said Article Parliament was empowered by law to constitute an All India Service common to the Union and the States and to regulate the recruitment and conditions of service. It also provided that the services known before the commencement of the Constitution the Indian Police Service arid Indian Administrative Service shall be deemed to be services created by Parliament under that Article.

Persuant to these powers Parliament passed an Act known as the All India Services Act 61 of 1951 which recognised the existence of the two All India Services mentioned above.

Section 3 of that Act empowered the Central Government after consultation witli the State Government concerned to make Rules and Regulation

for recruitment and conditions of service for appointment to All India Service.

Section 4 further provided that all Rules in force ' JI immediately before the commencement of the Act were deemed to be Rules made under that Act.

The Central Government by virtue of tlie powers vested in it under Section 3 of the Act had promulgated 3 sets of Rules to which a reference has already been made namely the Recruitment Rules, the Cadre Rules and the Seniority Rules.

On May 14, 1956 the Indian Police Service (Special Recruitment) Regulations 1957 were made under Rule 9(5) of the Recruitment Rules.

On 19th January 1960 the Indian Police Service (Seniority of Special Recruits) Regulations 1960 were made persuant to Rule 5-A of the Seniority Rules.

These Regulations deal with the determination of seniority of recruits ap!>ointed under Special Recruitment Regulations; Regulation 3 of which provides that officers appointed to Service in accordance with that Regulation shall be assigned a year of allotment in accordance with r. 3(3) (b) of the Seniority Regulations 1954.

SUPREME. COURT REPORT~ {1~71] SUPP. s.c.R.

Under sub-rule (!) of Rule 3 of the Recruitment Rules the Indian Police Service is constituted of the following persons. namely :

(a) Members of the Indian Police ;

(b) Members recruited to the service before the commencement of the Rules ; and

(c) Persons recruited to the service in accordance with the provisions of these rules.

Service has been defined as meaning the Indian Police Service which as we have noticed was constituted even earlier than these rules.

After the commencement of the Rules, recruitment to the service is to be made under Rule 4 by 2 methoqs :

(a) by competitive examination, and

(b) by promotion of substantive members of a State Police Service.

Rule 6 further provides that all appointments to service after the commencement of the Rules shall be made by the Central Government and no such arrangements shall be made except by one of the methods specified in Rule 4.

It is with respect to the second method of recruitment by promotion that we are concerned in this case as the Appellant was appointed to the service under Rule 9. Sub-rule (5) of that rule which was introduced with effect from 14th May '56 by Notification dated the 9th May '57 empowers the Central Government to promote substantive members of a State Police Service in excess of the normal promotion quota in accordance with such regulation as the Central Government may in consultation with the State Government and the Commission make from time to itme.

In exercise of the powers under this Rule the Special recruitment Regulation 1957 was made, which by Regulation 4 applied the Indian Police Service (Appointment by Promotion) Regulation 1955 (hereinafter called the "Appointment by Promotion Regulation".).

Regulation 4 of the Appointment by promotion Regulation was substituted by another Regulation 4 the effect of which is that the Committee in consultatiOn with the Commission must consider the cases of members of the State Police Service who mi 3ht December '56 may have completed not less than six years of service (whether officiating or substantive) in a post of Deputy Superintendent of Police. While under the original Regulation 4 of the Appointment by Promotion Regulation, the Committee has to meet at intervals ordinarily not exceeding one year and consider a case of a.11 the substantive members of the Police Servioe who had on !st January of that year completed eight years of service in a post of Deputy Superintendent of Police. In Regulation 5, sub-Regulation (4) and in sub-Regulation

A. R• MUEHBRJEl! Y. lrNION (Jagaitmohan Reddy, J.)

<S> the words "Review i>r revision" were'-deleted. Similarly sub-Regulation (3) & (4) of Regulation 7as well as Regulations 8; 9 and IO were omitted.

The effect of these amendments is that for the Special Recruits there was no provision for the preparation of a select list referred to in Regulation 7(3) and (4).

In the case of the special recruits a list prepared by the Committee is sent alongwith other documents from the State Government to the Commission and unless the Commission considers any change necessary it merely has to approve the list: It is then for the Central Government to appoint the persons approved in the list.

The Appellant is admittedly a special recruit within the meaning of the provisions referred to above and his eontention that unlike the cases of those who are to be appointed within the 25 % quota his name need not be included in the select list to be appointed whenever there is a vacancy from out of that list. All that is necessary in his case is that once the Commission approves the list of persons selected the Government of India can straightaway appoint him and that is what he says has been done in his case.

While this may be so in our view no significance can be attached to this difference in the method of recruitment.

In so far as the question before us is concerned what we have to see is whether the main rule 3(3) (b) of the seniority Rules applies or whether his case comes _within any of the provisions thereto for the purposes of ascertaining which is the year of allotment which can be_ assigned to him. It may be mentioned that submle (I) of Rule 3 of the Seniority Rules makes it incumbent upon the Central Government to assign a year of allotment to every olJicer in accordane with the provisions of that Rule.

The assignment of the year of allotment to an officer appointed to the service after the commencement of the Rules is governed by the Seniority Rules which are applicable to the Appellant.

The relevant rule 3(3) (b) is as follows :

"3(3) The year of allotment of an Officer appointed to the service after the commencement of these rules shall be:

(a) ...

(b) Where the Officer is appointed to the service by promotion in accordance with Rule 9 of the Recruitment Rules, the year of allotment of the juniormost among the Officers recruited to the service in accordance with Rule 7 of _those rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former".

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

A ' Provided that the year of allotment of an Officer appointed to the Service in accordance with Rule 9 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service, in accordance with rule 7 of those Rules, so started officiating shall be determined ad hoc by the Central Government in consultation with the State Government concerned; B

Provided further that an Officer appointed to the Service after the commencement of these Rules in accordance with Rule 9 of the Recruitment Rules shall be deemed to have officiated continuously in a senior post prior to the date of the inclusion of his name in the Select List prepared in accordance with the requirements of the Indian Police Service (Appointment by Promotion) Regulations framed under Rule 9 of the Recruitment Rules, if the period of such officiation prior to that date is approved by the Central Government in consultation with the Commission.

Explanation I. An Officer shall be deemed to have officiated continuously in a senior post from a certain date if during the period from that. date to the date of his confirmation in the senior grade he continues to hold without any break or reversion as senior post otherwise than as a purely temporary or local arrangement.

Explanation 2.

An Officer shall b~ treated as having officiated in a senior post during any period in respect of which the State Government concerned certifies that he would have so officiated but for his absence on leave or appointment to any special post or any other exceptional circumstance.

The above rule has been construed by this Court in D. R.

Nim v. Union of India('), in respect of the second category to which it was applicable namely an officer appointed to the Indian Police Service after the commencement of the Rules.

One of us <Mylord, the Chief Justice) after analysing the Rule, set out the result of the analysis of the provision at page 328 as under :

"The formula adopted works out as follows : -

(!) Finding out the year of allotment of the juniormost among the officers recruited to the service by competition who officiated continuously in a senior post from

(1l [1967] 2 s.c.R. 325.

A. R. MUKHERJBE v. UNION (Jaganmohan Reddy, J.)

a date earlier than the date of commencement of officiation of the Appellant. . . . But according to the first proviso, if the Appellant started officiating continuously in a senior post from a date earlier than the date of any officer recruited by competition his allotment had to be determined ad hoc by the Central Government.. .......... The second proviso limits the operation of the first proviso by dividing the officiating period into two classes ; first, a period before the date of inclusion of an officer in the Select List, and secondly the period after that date. The ' first period can only be counted if such period is approved by the Central Government in consultation with the Commission ............... We may here notice explanation I to Rule 3, because the Government of India also say that the Appellant officiated continuously as a temporary or local arrangement ............... Therefore according to the Rule the Central Government had to determine ad hoc the year of allotment after approving or not approving the period of officiation of the Appellant before 1956".

In that case also the Government of India had taken the stand that it had determined the date of commencement of officiation of the Appellant as 19th May '51 after consultation with the Commission and on that basis the period of officiation as Superinten~ dent of Police from 25, th June '47 to May 19, 1951 was excluded for the purpose of fixation of seniority.

At page 330 it was pointed out that the date May 19, 1951 to begin with had nothing to do 'with the finalisation of the gradation list of the I. P. S. because it was a date which had reference to the finalisation of the Gradation list of the Indian Administrative Services.

In so far as the applicability of that date as the crucial date for classification of officers in the Police Service is concerned, it was held to be arbitrary and contrary to Rule 3. In this view the impugned order fixing the year of allotment was quashed.

It was further pointed out that the contention of the Government of India that the Appellant's continuous officiation was a temporary or local arrangement within Explanation I to Rule 3, cannot as a stop gap arrangement last for eight years nor has it been shown that the Appellant was appointed in place of someone as subsequently he has never been reverted.

Further the fact that he was appointed to the post at the time when vacancies occurred negatives that it was merely a temporary arrangement.

In view of this Judgment we find it unnecessary to cover the same ground again in dealing with the arguments of the Appellant because in the case before us also 19th May '51 was treated as the date prior to which the period of officiation would not be deemed to be approved by .the Central Government and which was held to be bad by the High Court.

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

It is clear from the facts stated, that the Appellant had been holding a senior post in the West Bengal Police Service no doubt, on deputation but continuously from 10-1-1949 and was. only appointed to that service in 1953 a year before the promulgation of the Recruitment Rules.

He was however not appointed to the Indian Police Service till after the Rules had come into force in 1954.

The question will therefore be how is his year of allotment to be determined? The Appellant claims that the main rule 3(3) (b) without it being read with any of the two provisos is applicable to him and on that basis he contends that the year of allotment to be assigned to him is the same as that of Shri P. Dhar who is the junior-most among the officers directly recruited to the service in accordance with Rule 7.

The Respondents however repel this contention and say that Shri Dhar was not directly appointed under Rule 7 of the Rules because he was recruited in 1945 even before the Indian Police Service was constituted. If as the Appellant states Shri Dhar was an Indian Police Officer, whether recruited directly or promoted under the Rules then existing, he became a member of the Indian Police Service under sub-rule (!) of Rule 3 on the date when the Rules came into force in 1954 and is not an officer recruited to the service in accordance with 'Rule 7 of those rules'. The year of allotment assigned to Shri P. Dhar will not therefore be available to the Appellant under r. 3(3)(b).

The Respondents however contend that the first proviso al>" plies, as such the Central Government has to fix the year of allot ment and seniority of the applicant on. ad hoc basis. The Appellant on the other hand argues strenuously that the first proviso does not apply t~ him because, it .is. _applicable only to persons in the joint cadre.

This contention is suggested by a curious process of reasoning namely that because under that rule the officiating date has to be determined ad hoc by the Central Government in consultation with the State Government concerned and as "the State Government concerned" is defined as being in relation to a joint cadre that proviso deals only with officers in the joint cadre and the officiating date to be fixed ad hoc is in relation to persons who come into the joint cadre from States other than the nine erstwhile British Indian Provinces like Hyderabad, Mysore etc. In our view the first proviso to rule 3 nowhere refers or even remotely indicates that it is only applicable to the persons in the joint cadre.

In fact, in rule 2(i) of the Seniority Rules and word "State cadre" and 'joint cadre' have been defined as having the meaning respectively assigned to them in the Indian Police Service (Cadre) Rules 1954.

By reference to rule 7 of the Cadre rules it is apparent that what is to be determined is the authority which is to appoint, to the respective cadres i.e. in the case of State Cadre it is the

A. R. MUKHERJEE •• UNION (Jaganmohan Reddy, J.) 58 5

State Government and in the case of Joint Cadre it is the State Government concerned. The first proviso does not refer to any appointment to any cadre, it only deals with Regulation of Seniority and the reference to the 'State Government concerned' is for the purposes of fixing the date of officiation ad hoc in consultation with the Central Government. When there are several State Governments the consultation by the Central Government must neces- • B sarily be with the State Goverment concerned m relation lu th~ officer who is appointed to the cadre of that State. Whether the first proviso applies or the second proviso applies, under both of them it is the Central Government that has to determine ad hoc, the year of allotment after approving the period of officiation in consultation with the Public Service Commission.

In view of the Judgment in Nim's case, the order assigning 1947 as the year of allotment to the Appellant on the basis of an arbitrary date of officiation namely 19th May '51, is bad and has been quite properly struck down by the High Court.

The High Court however had no power to direct the year 1948 to be fixed as the year of allotment for the determination of the seniority ot the Appellant on the basis that that was fixed on an ad hoc basis in an earlier occasion by the Government of India. . Once the Government of India has on a memorial presented by the Appellant decided finally in supercession of its previcms . decision that the year of allotment to be assigned to the Appellant in relation to the date of his continuous officiation.

The Appellant also contends that the date of his continuous officiation is that which has been held by both the Single Judge as well as the Division Bench of the High Court of Calcutta i.e. the 10th January '49. While on the other hand the learned Solicitor General as well as Mr. Chagla appearing on behalf of West Bengal contend that the officiation cannot commence till after he was appointed to the West Bengal service which was only on the !st July '53, till then he was an Officer in the Army with a lien to the post of a Major and cannot therefore be said to be appointed to that service from the 10th January '49. The Appellant's answer is that the Government of India had in relation to his pay determine4 10-1-1949 as the date from which he is said to be officiating and in any case the date of continuous officiation is not from the date of appointment but from the date on which a person <>ecupies a post and officiates continuosly without a break.

It is true that both the Courts have held that the date of the Appellant's officiation in. the service is 10-1-1949 and in arriving at this

586 SUPllBMB COURT. REPORTS [1971] SUPP. s.c.R..

A conclusion they seem to have relied on a letter to the Government_ of India dated 19-12·1958 in which it has been stated as follows:

"The Government of India have decided that the pay of Shri Mukherjee should be fixed in the sepior scale of the I.P.S. notionally from 10-1-1949 the date from which B he held an Indian Police Service post continuously".

The Division Bench however rejected the contention of the Respondents that July I, 1953 should be the datum date, the date from which the Appellant's continuous officiation commenced. It observed :

"Now, there can be no question that the Petitioner had been officiating in the post of a Commandant from January 10, 1949 and that he had continuously held that post right upto July I, 1953. There is nothing in clause (b), which shows that while officiating in a 'senior post' the officer concerned must be an officer belonging substantive Jy to the State Police Service in question and could not be an officer on deputation from some other service. There can be little doubt that the particular clause we have before us viz., clause (bT of rule 3(3) in term is wide enough to cover even the period between January 10, 1949 to July I, 1953".

In view of this finding the Petitioner strenuously contends that as he has already suffered a great deal and has come to the end of his resources this Court should, having regard to the position taken up by the Government, of India in its Jetter referred to earlier namely 10th January '49 as the date from which he held the post in the West Bengal Police Service continuously, which according to both the Courts was also the date of continuous officiation and also having regard to the 'P' factor which for the State of Bengal has been fixed by the Government of India as 4 years 19 days, this Court could determine the year of allotment by deducting the 'P' factor from the date of officiation and assign to the appellant the year 1943 as the year of allotment. He also contends that in the case of Nim, the Government of India after the decision of this Court, determined the year of allotment and assigned to him this very date 1943.

Whatever force these contentions may have we do not propose to trespass upon the jurisdiction of the Government of India to determine ad hoc in consultation with the Commission, on a consideration of the relevant materials, the date of the Appellant's continuous officiation and assign to him a year of allotment

A. R. MUKHERJEE v. UNION (Jaganmohan Reddy, J.).

We would therefore direct that. the Government of India in consultation with the Public Service Commission do determine and allot ad hoc the year of allotment according to law within two to three months, as in our view after Nim's case the position having already been clarified, it should not take much time to determine the seniority of tho Appellant.

The: Appeal is accordingly allowed with costs against tho Union of India.

G.C.

Appeal allowed.

58"1

ARUN RANJAN MUKHERJEE

UNION OF INDIA & ORS

S. M. SiKRI

G. K. MITTER

P. JAGANMOHAN. REDDY

I. D. DUA, JJ.

s. 3

Art. 27

[1967] 2 S.C.R. 325

Article 226

Constitution of India

Section 3

All India Services Act

S.

37

Article 226

Article 312

Section 3

Section 4

Section 3

Special Recruitment Regulations

Seniority Regulations 1954

Appointment by Promotion Regulation

may here notice explanation I to Rule

Explanation I to Rule


NARAYANSWAMI

STATE OF MAHARASHTRA

April 30, 1n1 [K. S. HEGDE AND A. N. GROVER, JJ.l

Code of Criminal Procedure, 1898-Section 479A sub-section (!)- Reasonable opportunity of being heard contemplated by section not nzan .. datory,

The requirement under sub-section (!) of section 479A of the Code of Criminal Procedure, of giving the witness an opportunity of being heard after the recording of the necessary findings .and before making the complaint is not mandatory. That step is required to be taken only if the court thinks fit-a matter left to the discretion of the trial court. The prosecution of the appellant is therefore not vitiated because such an opportunity was not given. [594F-GJ

Dr. B. K. Pal Chaudhry v. The State of Assam, [1960] l S.C.R. 945 and Dr. Kuppa Goundan and Anr. v. M.S.P. Rajesh, [1966) Supp. S.C.R. 373, distinguished.

Rukmani Bai v. G. R. Guvindaswamy Chetty, [1963] M.L.J. 411 and Re: Javvaji Uthanna, A.l.R. 1964 A.P. 368, referred to.

[In the instant case adequate opportunity wa! given to the appellant, before the findings were recorded to show cause why ho should not be E prosecuted. Therefore tho Court did not find it necessary to expoess any opinion as to the correctness of the observations of the Madras and Andhra Pradesh High Courts in Rukmani Bai v. Govindaswamy Chetty and In re Javvaji Uthanna that even though sub-section (1) does not mandatorily require that any opportunity should be given to the person complained against there is no reason why the principle of audi alteram partem should not apply.] [S95D-E]

F CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 3

of 1969.

Appeal by special leave from the Judgment and Order dated September 2, 4, 1968 of the Bombay High Court, Nagpur Bench in Criminal Appeal No. 74 of 1968.

W. S. Barlingay and A. G. Ratnaparkhi, for the appellant.

P. K. Chatterjee and S. P. Nayar, for the respondent.

The Judgment of the Court was delivered by

Hegde, J.-The only substantial question that arises for decision in this appeal by special leave is as to whether the requirements of Section 479-A of the Code of Criminal Procedure have been complied with before instituting the complaint from which

NARAYANSW, l.MI ~-MAHARASHTRA (Hegde, J.) 589'

this appeal arises and if they have not been complied with A whether the prosecution is vitiated ?

In July 1965, there was a dacoity within the limits of Railway Police Station,.Nagpur. Several properties belonging to the Railways were stolen int the course of that dacoity.

During the investigation of that offence, the Railway Police sought the assist ance of the local police. Inspector Khandagale (D. W. I) who was incharge of the Tehsil police station directed the appellant, the Sub-Inspector working under him to assist the Railway Police in the investigation' of the case.

Part of 'the investigation was carried on by the appellant.

Two of the persons arrested in connection with that dacoity were Ambadas and Deorao.

They are said to have made certain statements on July 21, 1965.

It is further alleged that in pursuance of the information given by Deorao, the police in the presence of the Panchas recovered certain properties.

The concerned panchnama was attested by two witnesses viz. Pochanna and Abdul Gani. After the investigation a charge-sheet was filed against several persons including Ambadas and Deorao accusing them of the commission of an offence under Section 395, I. P. C. After preliminary enquiry the case was committed to the court of Sessions, Nagpur and was tried before the Additional Sessions Judge, Nagpur as Sessions Trial No. 8 of 1966 on his file. The trial of the case commenced on June 6, 1966.

Pochanna, one of the Panch witnesses was examined on June 9, 1966.

He did not support the prosecution.

Abdul Gani, the other Panch witness also had been cited as a witness but he was not present in court on June 9, 1966.

On June 10, 1966, one person who claimed himself to be Abdul Gani, who had attested the panchnama, was examined.

He deposed that he had attested the panchnama and that he was present at the time the recoveries were made. On June 11, 1966, the appellant was examined. The appellant deposed that the person examined on the previous day was Abdul Gani and that person had attested the panchnama in question.

Thereafter the case took a new turn. It appears that the accused came to know that the person examined on June 10,

1966 was not Abdul Gani out one Dilawar and that the real Abdul Gani had migrated from Nagpur and settled down at Rajnandgaon.

On enquiry their Counsel, Mr. Ingle came to know that Dilawar who posed himself as Abdul Gani was involved in a criminal case pending in the Munsiffs court in Nagpur.

After ascertaining all the facts, Mr. Ingle filed an application before the learned trial Judge alleging that the witness who posed himself as Abdul Gani and spoke in support of the recovery panchnama was an imposter and that he was not the real attester to the panchnama. Therein he further stated tlmt the name of that person was Dilawar and

IJe was the son of one Munirsha.

Thereafter the learned trial judge recalled the said witness and further examined him on June

SUPREME COURT RBPORTS [1971) SUPP. s.c.R.

14, 1966.

At that time the witness confessed that he was not Abdul Gani and that he did not attest the panchnama, but he had been compelled by the appellant to depose falsely. After the examination of this witness, the learned trial judge being prima facie of the opinion that the appellant had given perjured testimony and that he has fabricated false evidence, issued a notice to the appellant to show cause why he should not be prosecuted for perjury and for fabricating false evidence for the purpose of the case.

The appellant showed cause on June 16, 1966.

In the statement filed by him he again asserted that the person examined on June 10, 1966 was Abdul Gani, the attester of the panchnama.

He denied the fact that the said witness is Dilawar.

He went further and averred that the witness had been purchased by the accused and that he has deposed falsely that he is not Abdul Gani.

Thereafter the appellant was recalled and further examined. During the course of his exmination he reiterated the stand taken by him in his written statement.

In the course of his cross-examination, it was elicited from him that he knew the person concern ed for over three years, thereby the possibility of the appellant giving incorrect evidence due to misconception was ruled out.

After the appellant was re-examined, the accused produced a per son in court who according to them was the real Abdul Gani. That person deposed that he is Abdul Gani and that he was the person who had attested the panchnama. The learned trial Judge took his sample signatures and compared the same with the signature found on the panchnama. He found them to tally witb one another.

After the conclusion of the trial, the learned trial judge acquitted all the accused and directed the prosecution of Dilawar and the appellant under Sections 195 and 196, I. P. C. At this stage it may be noted that in the course of his judgment in the dacoity case, the learned trial judge gave a finding that Dilawar and the appellant intentionally gave false evidence in the case and further the appellant had intentionally fabricated false evidence for the purpose of being used in that case.

He also opined that for the eradication of the evils of perjury and fabrication>0f false evid ence and in the interest of justice it is expedient that Dilawar and the appellant should be prosecuted for the offences committed by them.

On the basis of that complaint, the appellant and Dilawar were tried, convicted and sentenced to suffer rigorous imprison ment for three years.

The appellant was convicted both for perjury as well as for fabricating false evidence.

Under each head, he was awarded a sentence of three years rigorous imprisonment but the two sentences were ordered to run concurrently. Dilawar did not appeal against his conviction and sentence. The appel !ant appealed against the judgment to the High Court of Maharash tra.

His appeal was summarily dismissed.

Thereafter he appealed to this Court after obtaining special leave.

In that appeal this Court came to the conclusion that the High Court should not have

summarily dismissed the appeal as arguable questions of fact and A law arose for consideration.

It accordingly set aside the order of the High Court and remitted the case to the High Court with a direction to re-admit the appeal and dispose of the same according to law.

Accordingly the appeal was again heard by the Nagpur Bench of the Maharashtra High Court.

The appeal has again been dismissed by the High Court.

We have now to con- B sider the correctness of the decision of the High Court.

So far as the merits of the case are concerned, there is little to be said in favour of the appellant's case.

There is hardly any doubt that Dilawar had posed himself as Abdul Gani.

It is also clear from the evidence on record and from the circumstances of the case that the appellant was responsible for inducing Dilawar to pose as Abdul Gani.

All that was said in favour of the appellant by Dr. Barlingay, his learned Counsel was that the possibility .of the appellant innocently thinking that Dilawar was the real Abdul Gani cannot be ruled out. We are unable to accept this contention.

It is clear from the admissions made by the appel- 1ant during the Sessions Trial which admissions have been brought on record as evidence in the present case that he knew Abdul Gani very well.

Therefore there was no occasion for him to make any mistake.

The appellant had strongly asserted in his statement in reply to the show cause notice as well as in his deposition in court that the person who was examined on June 10, 1966 was the real Abdul Gani and that he was the person who had attested the panchnama.

Under these circumstances, the plea that the apellant gave evidence under an erroneous impression cannot be entertained. It is clear that the appellant has no regard for truth.

We also do not find any merit in the contention that the explanation given by the appellant in the dacoity case as well as his evidence in that case are inadmissible in the present proceedings.

Admissions made in the explanation given and in the deposition are relevant and admissible in the present case.

An admission is a substantive evidence, though it is open to the person who made the admission to show that the fact admitted is not correct.

In the absence of any such proof the admission has to be considered

as an important piece of evidence.

As mentioned at the outset the only important question for decision in this appeal is whether the requirements of Section 479- A. Code of Criminal Procedure have been complied with before filing the present complaint.

Section 479-A was incorporated into the Code of Criminal Procedure by Act 26 of 1955.

That

section reads : H "479-A. Procedure in certain cases of false evidence.

(!) Notwithstanding anything contained in sections

.592

476 to 479 inclusive when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him, the Court shall, at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefor and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof in writing signed by the presiding officer of the Court setting forth the evidence which in the opinion of the Court is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction and may if the accused is present before the Court, take sufficient security for his appearance before 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.

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

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

(3) No appeal shall lie from any finding recorded and complaint made under sub-section (!).

(4) Where, in any case, a complaint has been made under sub-section (!) and an appeal has been preferred against the decision arrived at in the judical proceeding out of which the matter has arisen; the hearing of the case before the Magistrate to whom the complaint was forward ed or to whom the case may have been transferred shall be adjourned until such appeal is decided ; and the Appellate Court, after giving the person against whom the complaint has been made an opportunity of being heard, may. if it so thinks fit, make an order directing the withdrawal of the complaint; and a copy of such order shall be sent to the Magistrate before whom the hearing of the case is pending.

(5) In any case, where an appeal has been preferred A from any decision of a Civil, Revenue or Criminal Court but no complaint has been made under sub-section (1), the power conferred on such Civil, Revenue or_ Criminal Court under the said sub-section may be exercised by the Appellate Court ; and where the Appellate Court makes such complaint, the provisions of sub-section (1) shall B apply accordingly, but no such order shall be made, without giving the person affected thereby an opportunity of being heard.

(6) No proceedings shall be taken under Section 476 to 479 inclusive for the prosecution of a person for giving or fabricating false evidence, if in respect of such a C person proceedings may be taken under this section".

This section was introduced into the Code with the idea of eradicating to the extent possible the evils of perjury and fabrication of falne evidence a widespread evil that is corroding our judicial system. The then existing procedure in the matter of prose- D cuting those who give false evidence or use fabricated evidence in judicial proceedings was found to be tardy and ineffective.

Therefore power was given both to the trial court as well as to the appellate court to forthwith complain against witnesses guilty of perjury or fabricating false evidence without having recourse to the procedure laid down in Sections 476 to 479 of the Code E of Criminal Procedure.

But at the same time the legislature felt that before proceeding against those persons the court must form an opinion that the witness has either given intentionally false evidence or has intentionally fabricated false evidence and further must form an opinion that it is expedient in the interests of justice that the witness should be prosecuted for the offence committed by him.

It is clear from the findings given by the learned trial Judge in the dacoity case that he had come to a prima facie conclusion that the appellant had given false evidence and further that he had intentionally fabricated false evidence for the purpose of being used in that case.

He had also come to the conclusion that for G the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it was expedient that the appellant should be prosecuted for the offences committed by him. Thus far there is no difficulty.

But according to the appellant, the complaint is vitiated because after arriving at the findings in question and before filing the complaint, the learned Sessions Judge had H not given him an opportunity to show cause why complaint should not be filed against him.

As seen earlier he had given an opportunity to the appellant at an earlier stage to show cause why he 38-1 S. C. India/7 I

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

should not be prosecuted for giving false evidence and for fabri eating false evidence.

But we are told that the requirement of giving a notice to show cause why a complaint should not be filed, after the required findings are given and before making the com plaint is mandatory and failure to do so has vitiated the prosecu

tion.

Let us now proceed to consider whether this contention is well founded.

The material portion of Clause (1) of Section 479A is :

" .................. when any Civil, Revenue or Criminal Court is of opinion that any person appearing before it as a witness has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding and that for the eradication of the evils of perjury and fabrication of false evid

ence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been committed by him, the court shall at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons tlierefqr and may if it so thinks

fit, after giving the witness an opportunity of being heard make a complaint thereof in writing ............... "

(emphasis supplied)

This provision clearly shows that what is mandatory is that the judge must give a finding that the witness has intentionally given false evidence in the proceeding before him or has intentionally fabricated false evidence for purposes of being used in that proceeding and that for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that the witness should be prosecuted for the offence in question.

Giving of an opportunity to the witness to show cause against the contemplated complaint is not mandatory. That step is required to be taken only if the court thinks lit-a matter left to the discretion of the trial court.

This position is made further clear when we go to sub-section (5) of Section 479-A. This sub-section empowers the appellate court to make a complaint against a witness whom it thinks is guilty of perjury or guilty of fabricating false evidence to be used in the proceedings before it.

It provides that where the appellate court propose.• to make a complaint "the provisions of sub-section (I) shall apply accord ingly but no such order shall be made without giving the person affected thereby an opportunity of being heard".

(emphasis supplied)

In other words in the case of the trial court a discretion is given as to whether an opportunity should be given or not before filing a complaint to show cause against the proposed complaint but so far as the appellate court is concerned the giving of an opportunity to the witness to show cause against the contemplated complaint is made mandatory.

The reason for this distinction is understandable.

So far as the trial court is concerned, it is the court that has seen the witness and observed his demeanour. Therefore the legislature evidently thought that the question whether a witness should be given a further opportunity to show cause why complaint should not be filed against him may be left to the discretion of that court but the appellate court having no such opportunity, the legislature evidently thought that an opportunity should be given to the witness to show cause against the contemplated complaint.

The conclusion arrived at by us accords with the view taken by the High Court of Madras in Rukmani Bai v. G. R.

Govindaswamy Chetty(') and by Andhra Pradesh High Court in Re. Javvaji Uthanna(").

In those two decisions even after coming to the conclusion that Clause (!) of Section 479-A does not mandat0rily require that any opportunity should be given to the person complained against to show cause against the contemplated complaint, the courts took the view that all the same notice should be issued as there is no reason why the well-known and well accepted principle of audi a/teram partem should not apply. In this case it is not necessary to express any opinion as to the correctness of these observations.

As seen earlier adequate opportunity had been gi.ven to the appellant to show cause against the proposed complaint.

Dr. Barlingay, learned Counsel for the appellant placed reliance on two decisions of this Court namely in Dr. B. K. Pal Chaudhry v. The .State of Assam(') and Kuppa Goundan and anr. v.

M. E. P. Rajesh(') in support of his contention that after giving the findings required under Section 479-A(l) and before filing the complaint, the court is bound to give the person concerned an opportunity .to show cause against the proposed complaint against him.

Neither of the two decisions bear on the question of law in issue. In Dr. B. K. Pal Chaudhry's case(), the complaint was filed by the appellate court and not by the trial court.

All that was held by this Court in that case is that it was the duty of the court acting under sub-sections 1 and 5 of Section 479-A of the Code of Criminal Procedure to record a finding that in its opinion intentionally false evidence has been given and for the eradication of the evils of perjury and in the interests of justice, it

(1) (1963] M.L.J. 421;·

(3) [1960] 1 S.C.R. 945.

(2) A.1.R. 1964 A.P. 368.

(4) [1966] Supp. s.c.R. 373,

is expedient that there should be a prosecution for the offence and also to give the person against whom it is intended to proceed a hearing before making the complaint in respect of t..e offence.

In Kuppa Goundan's case(') the scope of sub-section (6) of Section 479-A, Code of Criminal Procedure came up for consi deration.

That case has nothing to do with the scope of sub-section (]) of Section 479-A, The observations made in those cases must be read in the context in which they were made.

In those cases this Court did not consider the scope of Section 479-A(l).

In the result this appeal fails and the same is dismissed.

K.B.N.

Appeal dismissed.

Ct> (1966) Supp. s.c.R.. 373.

NARAYANSWAMI

STATE OF MAHARASHTRA

K. S. HEGDE

A. N. GROVER, JJ

Code of Criminal Procedure, 1898

Section 479A

section 479A

Code of Criminal Procedure

Section 479

Code of Criminal Procedure

Section 395

Sections 195 and 196

Section 479

Code of Criminal Procedure

Section 479

Code of Criminal Procedure

Section 200

Section 476 to 479

Sections 476 to 479

Section 479A

Section 479

Section 479

Section 479

sections 1 and 5

Section 479

Code of Criminal Procedure

[1960] 1 S.C.R. 945

Section 479

Code of Criminal Procedure

Section 479

Section 479