• (

BARADAKANTA MISHRA

HIGH COURT OF ORISSA & ANOTHER

May 6. 1976

(A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, jJ.]

56 l

Constitution of India, 1950, Article 235-Control of Iligh Court over District Judges-Appointnient by Governor-Dismissal by High Co'urt-Legality.

The appellant was appointed a Munsi:ff and promoted as a Subordinate Judge.

He was later appointed as Mditional District Magistrate (Judicial) and then as C a'n .A.dditional District Judge by the Governor of the State.

As a result .of an enquiry into certain charges he was reduced in rank as Additional District Magistrate (Judicial) by the High C'Ourt.

After such reduction, he did not join duty. A fresh disciplinary proceeding was, therefore, started against him, and after enquiry, the Hij?h Court dismissed him.

On the same day, the High court passed another order of d:smissal oh the ground that he was convicted on a charge of criminal contempt by a judgment of the High Court which was COU firmed by this Court. The appeals against the orders of dismissal were dismiss .. ed by the Governor. A writ petition filed by the appellant in the High Court D for quashing the orders was dismissed.

Allowing the appeal to lhis Court,

HELD : (l) The control vested in the High Court under Art. 235 over district courts ahd courts subordinate thereto includes disciplinary control over district Judges and Judges inferior to the post of District Judges. If as a reSult of any disciplinary proceeding any punishment is to be imposed on any District E Judge that has to be in accordance with the conditions of service. The cond~ tions of service in the Civil Service (Classification, Control and Appeal) Rules, 1962, framed under Art. 309 provide in r. 14(4) that the appointing authority alone can impose the penalties specified in els. (vi) to (ix) of r. 13.

Clause

(vi) refers to the penalty of reduction in rank and cl. (ix) to dismissal from service. Therefore, under the conditiohs of service, the High Court cannot reduce in rank or dismiss a District Judge, who has been appointed by the Governor. The High Court, within the power and control vested under Art. 235, would hold disciplinary proceedings against the District Judge and recommend F the impositioh of a punishment of reduction in rank on him. But the actual power of imposition of one oi' the major punlishment5i, namely reduction in rank, is exercisable only by the Governor who is the appointing authority.

In exercising such special pcwers, the Governor will always have regard to the opinioh of the High Court in the matter. Therefore, in the present case, the order passed by the Hi2h Court reducing the appellant in rank is unconstitutional.

[576E- 578C, E-Hl G

(2) (a) The two orders of dismissal based on the order 'of reduction in rahk cannot have legal effect because the substratum of the orders of dismissal is an unconstitutional order. If the reduction of the appellant is without jurisdic .. tion then the appellant is deemed to dontinue as a Distri.ct Judge ahd the High Court could not dismiss him.[578C-D]

(b) There is no question of merger of the orders of the High! Court in the orders passed by the Governor. If the order of the initial authority is void an order of the appellate authority cannot make it valid.

The confirmation by .the Governor in appeal cannot have any legal effect because it is only that which is valid that can be confirmed and not that which is void.

[578D-EJ 3f-f::CIJ Oj76

A State of West Bengal v. Nripendra Nath Bagchi [1966] I S.C.R. 771; High Courl of Calcutta v. An1al Kun1ar Roy [1963] 1 S.C.R. 437; High Court of Punjab & Haryana v. State of Haryana (In the 1natter of N. S. Rao) [1975] 3 S.C.R. 365: Parshottam Lal Dhi11gra v.

Union of India

B CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1512 and 1513 of 1974.

Appeals by Special Leave from the Judgments and Orders dated

7th May 1974 and 30th November 1973 of Orissa High Court in • O.J.C. Nos. 1097 and 1033 of 1973 respectively.

C Purshottam Chatterjee and C. S. S. Rao, for the appellants.

Sachin Chaudhary and Vinoo Bhagat, for the respondent No. l.

Gobind Das and B. Parthasarathi, for respondent No. 2.

ARGUMENTS

For the Appellants :

(I) This appeal relates to the Writ Petition No. O.J.C. No. 1097 of 1973. The Appellant was appointed by the Governor as a Munsiff in 194 7.

He was in course of time promoted to the post of a Subordinate Judge.

(2) In 1961, a separate cadre of Additional District Magistrate (Judicial) was created by the Government carrying a scale of pay higher than that of a Subordinate Judge, and lower than that of a District Judge.

This new cadre was called Superior Judicial Service junior Branch but such cadre for the purposes of the Constitution must be considered to be one of, other than that of District Judges. It will be governed by Art. 234 and not by Art. 233 which applies to the District J udgcs who are placed in the Superior Judicial Service.

(3) After the cadre was created, the appellant was superseded, but later on was appointed by the Governor as Additional District Magistrate (Judicial). He was later on reverted to the position of a Sub-ordinate Judge and then again promoted to the position of an Additional District Magistrate (Judicial), by a notification issued by the Government.

On the 31st July, 1968, he was appointed by the Governor as an Additional District Judge.

(4) On 8-12-72, by a notification No. 2.291 dated S-12-72 he was reduced in rank from the Senior branch of the Superior Judicial Service to the Junior branch of the same Judicial Service, i.e. he was reduced to position of an Additional District Magistrate (Judicial) from the position of an Additional District Judge.

(5) Later by notification No. 307A dated 3-12-73 he was dismissed from service; . again on tbe same date by another Notification No.

308, he was dismissed from service for the second time.

In both the notifications he was described as belonging to the Orissa Judicial Service Class I, officiating in the Junior Branch of the Superior Judicial Service. The questions in this appeal are :-Whether the three Notifications aforesaid issued by High Court were valid as issued by a competent authority.

(6) Under the Constitution Subordinate Courts have been divided into two classes :-(a) District Judges, (b) other than the District , Judges. Art. 233 relates to the District Judges. Art. 234 relates to others in Judicial service than the District Judges. Art. 235 relates to

the control by the High Court of the memrs of both the branches of C Judicial Service

(i) Art. 233 provides that:-

(A) appointments of persons to be District Judges i.e. persons who are in Judicial service or persons who are not in Judicial service shall be appointed as D District Judges by the Governor in consultation of the High Court,

(B) the posting of District Judges i.e. after a person is appointed a District Judge, the posting of a District Judge shall be made by the Governor in consultation E with the High Court,

(C) the promotions of District Judges i.e. promotions or'

persons already appointed as District Judges shall be made by the Governor in consultation with the High Court. Jn Orissa there are five selection posts. Under the Constitution if a Subordinate Judge is appointed as a District Judge, he is elevated from the category of, Judicial officers governed by Art. 234 to the category of those governed by Art. 233. So it is fresh appointment-promotion refers to promotions of District Judges; appointment refers to persons "to be appointed" as District Judges.

(ii) Art. 234 provides that appointment of persons to the judicial service other than District Judges shall be made by the Governor in consultation with the Public Service Coinmission and the High Court.

(iii) Art. 235 refers to control by the High Court. These three H Articles should be read in a manner that conflict between the High Court and the Governor may be eliminated.

(7) This leads to the position that the High Court has control over the District Judges in all matters except those reserved to the Governor under Art. 233. So in matters of appointment, promotion and posting and matters included therein the Governor is the competent authority bul he has to act in consultation of tli, e High Court.

(8) The High Court can conduct an enquiry but cannot dismiss.

The High Court will send the report and the recommendation to the Governor who will on consideration of the entire matter pass an order of dismissal if it pleases him, (Ram Gopal v. State of M.P. [1970] l S.C.R. 472, 478) or may reject the recommendation or may ask the High Court to reconsider the whok matter again.

(9) The question is who will pass an order reducing a District _;;.

Judge to the position of an Additional District Magistrate.

In rhe case of Nripendra Bagchi v. State of West Bengal, it was held as follows -

D Articles 233 and 23.5 make a mention of two distinct powers. The first is appointment of persons, their posting and promotions and the other is control.

It has been decided in the case of Nripendra Bagchi that order of dismissal of a District Judge is to be passed by the Governor. (p. 788).

Section 16 of the General Clauses Act provide that the appointing E authority is the dismissing authority unless it otherwise appears,

Following this principle and considering all the subsequent dec; sions, the Supreme Court held in the case of High Court of Punjab and l:laryana v.

State of llaryana (in the matter of N. S. Rao)

"The High Court under this (Art. 235) control cannot terminate the service or impose any punishment on the district Judge by removal or reduction''.

(10) It has been pointed out already that the Constitution recognises two classes of subordinate courts.

The powers of the High Court with respect to them are different. The order for appointment of a District Judge and matters included therein must be passed by the Governor.

Whe_n a person so appointed is removed from service or reduced to the lower rank governed by Art. 234, the order of the Governor appointing him as District Judge is impliedly cancelled; without catlcellation of the order of the Governor appointing him to the post of District Judge, he cannot be removed from the rank governed by Art. 233.

This cancellation cannot be made by any body other than the Governor because he was the competent and the only authority so to appoint; hence the Governor is the only person who can remove or reduce in rank a District Judge.

Again, snpposing a

B. MISHRI\ V. ORISSA HIGH COURT 565

District Judge is appointed as a Judicial Secretary or a Legal Remembrancer or his services are placed at the disposal of the Governor, the High Court is out of the scene, he can be reduced in rank by the Governor.

Secondly, Section 16 of the General Clauses Act authorities the appointing authority unless otherwise provided, to suspend or to dismiss. It does not mean that appointing authority has merely the power to suspend and to impose merely the highest punishment, the substance is that the appointing authority has the power beginning from suspension and ending the power to dismissal unless otherwise provided elsewhere. Hence all intermediate punishments may also be imposed by the appointing authority provided that there is nothing to the contrary.

Hence Governor alone has the power of removal and reduction.

Thirdly, removal entails interference with the order of appointment which is clearly reserved to the Governor; hence removal has to be made by the Governor. But reduction also entails the order of appointment.

The order for appointment as District Judge and an order for reduction cannot stand at the same time; if they are allowed to do so they contradict mutually.

Finally, it a small power like transfer is given to the Governor, it cannot be imagined that an order which means his removal fr0m the category of officers governed by Art. 233 to the category of < officers go\erned by Art. 234 will be done by any authority other

than the Governor. E

1 ( 11 ) The High Court was wrong in holding that the reduction in rank could be done by them. Some confusion might have arisen from the fact that District Judges were the members of the Superior Judicial Service and the Additional District Magistrate (Judicial) were also placed in that Service but in the Junior brancl1.

So the High Court might have considered thaflt was mere matter of promotion and F reduction within the same sphere.

In common parlance it may so appear, but the Constitution puts them in two different categories.

Hence, High Court had no power to pass the order or reduction ' by the Notification No. 2291 dated December 8, 1972.

The two subsequent notifications being based on it arc equally null G and void.

It was urged that the order of the Governor confirming the orders of dismissal will prevail. It cannot be so. The initial order being bad all orders based on it are bad [1953] S.C.R. 136, 143.

(12) It has been said that the order of the High Court having merged in the order of the Governor, the latter order prevails being H the order in appeal.

That again i~ not so.

If the order of initial authority is null and void, and an order of :t competent authority in appeal ca1111ot make it competant (ledgord v. Hill 13 IA 134).

A Finally, the officers of the Governor have used the word "CON- FIRMED" wrongly.

The appellant filed appeals which wern dismissed but they have wrongly used confirmed though the effect of the order may be confirmation, if the initial order of the High Court was valid but what was confirmed was, a null and void order.

B Tf the first order of reduction was null and void, the appellant ' remained a District Judge and he was never dismissed as ; uch.

Fiually even if he was correctly reduced in rank by a proper

.II authoritv. the order of dismissal must come from the Governor as he Ill was api)ointed as an Additional District Magistrate by the Governor

, C

([1%6] 1 S.C.R. 771, 788). •

( 13) ( i) First question.-Whether the High Court in exercise of powers under Articles 235 of the O'nstitntion can impose any punishment on a District Judge by removal or reduction in rank.

"xx xx The High Court of coum\ under this coRtrol, cannot terminate the services or impose any punishment on District Judge by removal or reduction xxx if as a result of any disciplinary proceedings, any District Judge is to be removed from service or any punishment is to be imposed, that will be in accordance with conditions of service".

(iii) 'Conditions of service' in this instance, means, as embodied in the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 (hereinafter referred to as "the C.C.A. Rules". So, the C.C.A.

Rules framed under Article 309 of the Constit11tion are accepted to he

constitutional.

These C.C.A. Rules are undoubtedly applicable to District Judges and Additional District Magistrates (Judi.) in view of r. 18 of the Orissa Superior Judicial Service Rules, 1963. Thus, as per r. 14(4) of the C.C.A. Rules, the appointing authority, tl1at is the Governor, alone, can impose penalties, as specified in els. (VI) to (IX) of r. 13 of the C.C.A. Rules, cl. (VI) is the penalty of reduction in rank, and cl. (IX) is dismissal from service.

So, the High Court cannot reduce or dismiss a District Judge.

Second question.-Whether the High Court can suspend a. District Judge. Rule 12 of C.C.A. Rules and s. 16 of the General Clauses Act, debar the High Court to effect such suspension. Provisions of the General Clauses Act are applicable for interpretation of the Constitution ( vide Art. 367 (11).

Third question.-Whether the High Court can dismiss an Addi.

Dist. Magistrate (Judi.). If the reduction of the appellant, for the above reasons, is without jurisdiction, then the appellant is deemed to be continuing as a District Judge, and in view of the above submission, the High Court cannot dismiss him.

"Reading the above with Arts. 233 and 234, he (Mr. Sen) contends,

and rightly that a District Judge or a Judge, subordinate to the District Judge cannot be dismissed or removed by any authority other than the C Govetnor.

The next question :-Whether the reduction of the appellant from the rank of Addi. Dist. Magistrate (Jud!.) in January 1962, is hit by Art. 311 (2) of the Constitution .. Annexure-3 will clearly disclose that the said reduction was as a measure of penalty and hence the provi- D sions of Art. 311 (2) are attracted. There having been no enquiry, it is liable to be quashed.

This reduction had been challenged in a previous writ proceeding, whether the State Government and the High Court as the O.Ps suppressed the truth, as had been in the Annexure 3 and thus, practised fraud E on the Court Hence, that decision is revisable under the broad principle of Sec. 151, C.P.C. or otherwise. The reasons given by the High Court to refuse this relief are not acceptable in law.

Hence all the orders may be quashed and the appeal be allowed with costs, as the appellant has done nothing to disentitle, him from getting costs.

For Respondent No. 1

1. Facts and dates

The Appellant was appointed as a Munsiff, on probation, in 1947; and was confirmed in iliat cadre in 1948.

The Appellant was appointed Sub-Judge by promotion and was confirmed as such on 20.9.1958.

In 1961, a new cadre of Additional District Magistrates H (Judicial) was created by Government : ADM(J)'s ranked between Sub-Judge and District Judge.

The Appellant was supperscded by fo\Jr judicial officers when appointments were made to the new cadre

of ADM(J) on 28-9-1968.

The Appellant made a representation to Government against this supersession but the same was rejected, The Appellant was superseded again when more appointments were made to posts of ADM (J) ; the Appellant was considered but found unfit.

The Appellant was superseded innumerable times and at practically every stage of his career.

c. On 28.3.1962, the Appellant was, for the first time, appointed to officiate as ADM(J).

The appointment was made by Government as the Orissa Superior Judicial Service Rules, 1963, had not then come into force; and Article 235 had not been interpreted in Bagchi's case - [1966] 1 SCR 771 - by the Supreme Court.

By notification No. 1068, dated 15-1-1963, issued by Government, the Appellant was reverted from the post of temporary ADM(J) to his substantive rank of Sub-Judge; and he was posted as Sub-Judge, Sundergarh.

The above order of reversion was challenged by the Appellant in a writ petition before the High Court of Orissa (0.J.C. No. 168 of D

1964) but the writ petition was dismissed by judgment reported at >

ILR [1966] Cuttack 503.

The Appellant preferred a petition for special leave to appeal to the Supreme Court - SLP (Civil) No. 53 of 1967 - but the same was rejected.

And he matter stood concluded.

The Appellant committed acts of misconduct while working as Sub-Judge, Sundergarh, after his reversion aforesaid.

An enquiry was held; the Appellant was found guilty and the punishment awarded was stoppage of two increments.

The Appellant was under suspension ftom 15-5-64 to 9-4-1967.

The High Court appointed the Appellant to the post of ADM(J), by promotion, on 5.2.1968.

Under Rule 10 of the Orissa Superior Judicial Service Rules, 1963, the High Court is the appointing authority empowered to appoint ADM(J) s by promotion from the rank of Sub-Judge.

The Governor has no power to appoint ADM(J)s (or to appoint Sub-Judges under the Orissa Judicial Service Rules, 1964, which relate to Munsiffs and Sub-Judge; the High Court alone can appoint Sub-Judges by promoting Munsiffs).

h. The Appellant was promoted officiating Additional District Judge by the Governor.

Thereafter, he worked under Government as Joint . Secretary, Law Department and later on as Endowment Commissioner.

Subsequently, he was appointed officiating Additional District & Sessions Judge, Cuttack.

i. Three departmental proceedings had been started against the Appellant in respect of his work as Endowment Commissioner; and he had also been convicted for contempt of court.

While working as Additional District & Sessions Judge, Cuttack, the Appellant committed

acts of indiscipline, and was found to have tampered with judicial A records.

The Appellant was thereupon reverted to the rank of ADM(J) -0n 1-9-1971.

But subsequently, on 21-3-1972, the order of reversion was cancelled by the Governor, who suggested that departmental proceedings could be drawn up against the Appellant.

This act of cancellation of the reversion order has been commented on by this B Hon'ble Court in [1974] 2 SCR 282 at 288-Baradakanta Mishra vs.

Registrar of Orissa High Court & anr.

Disciplinary proceedings were started against the Appellant by the High Court, and the Appellant was placed under suspension.

The Appellant was found guilty of the charges framed against him.

By order dated 8 .12 .1972, the High Court imposed the punishment C of reduction in rank from Additional District & Sessions Judge to ADM(J); tl1e Public Service Commission was consulted regarding the imposition of this punishment and it concurred.

The Appellant was posted as ADM(J), Sambalpur, by notification dated 8-12-1972, which was served on him on 9-12-1972.

The Appellant did not proceed to Sambalpur, and never joined his post D as ADM(J).

The Appellant remained absent from duty for one year until he was eventually dismissed in December 1973 (by notification dated 3 . 12 1973).

m. A disciplinary proceeding was started against the Appellant on 1.2.1973 for deserting service.

By order dated 25.G.1973, the Inquiring Judge found the Appellant guilty of the charge of wilful E absence from duty.

The Appellant was offered an opportunity of being heard personally by the Full Court on 27-11-73, but the Appellant wrote to the High Court on 24 .. 11 . 73 that he was seriously ill and had been advised complete rest for a fortnight.

The High Court rejected his request for adjournment and fixed the hearing for 30-11-73.

The F Appellant-notwithstanding that he claimed to be seriously ill-came to the High Court on 27-11-1973 and filed O.J.C. No. 1033 of 1973, which gave rise to CA No. 1513 of 1974.

The Appellant did not however appear before the High Court to show cause against the > punishment propooed to be awarded.

The Appellant was dismissed on two counts, \Vhich were G recorded in two separate orders as the orders were passed on two separate proceedings.

(i) By order dated 30-11-1973, the Appellant was dismissed for having been found guilty of the charge of having deserted service.

(ii) By another order also dated 30.11.1973-the High Court H also awarded the punishment of dismissal on acconnt of the Appellant's conduct leading to his conviction for contempt of court, which was uphdd by the Supreme Court in [1974] 2 SCR 282.

SUPRE]\IE COURT REPORTS

[1976] SUPPLEMENTARY

(iii) Based on the aforesaid orders, two notifications both dated 3-12-1973: were issued by the High Court dismissing the Appellant from service.

(vi) The High Court consulted the Public Service Commission regarding the proposed punishment of dismissal to be awarded to the Appellant, and the PSC had concurred therein.

p. The Appellant field O.J.C. No. 1087 of 1973 in the High Court challenging, inter alia, the orders of dismissal, the order of reduction in rank, and seeking a declaration that he should be considered senior to one B. R. Rao, who superseded him in 1961, and as holding the post of District Judge before B. R. Rao.

The High Court dismissed the said O.J.C. No. 1087 of 1973 by judge ment dated 7.5.1974: this judgment is impugned in CA No. 1512 of 1974.

Submissions

The High Court was competent to dismiss the Appellant from his post of ADM(J).

The words "posting and promotion" in Article 233 of the Constitution mean appointment of a District Judge by promotion from the preceding, lower rank in the judicial service-State of Assam & anr, vs. Kuseswar Saikia & ors. (1970) 2 SCR 928.

The same words-posting and promotion-in Article 235 must also bear the same meaning and must mean appointment by promotion of judges , subordinate to District Judges.

Therefore, Article 235 confers the ., power of appointment by promotion (as distinguished from appointment by direct recruitment) on the High Court, just as the similar power in respect of District J udge5 is conferred on the Governor by Art. 233.

2(a) (i). The Supreme Court has held in The High Court of Calcutta vs. Amal Kumar Roy-(1963) I SCR 437 at 447-that, 'It is therefore, clear that after the coming into force of the Constitution, the High Court is the authority which has the power of promotion in respect of persons belonging to the State Judicial .Service, holding any post inferior to that of a District Judge.' It is not contended by the plaintiff-respondent that there is anv other authority which could have dealt with him in the matter of promotion from the post of a Munsiff to that of a Subordinate Judge.

Article 234 governs the appointment by direct recruitment of persons to posts subordinate to that of District Judge.

Article 235 governs the subsequent appointment by promotion to such subordinate JJOSts (e.g., from Munsiff to Sub-Judge, and from Sub-Judge to ADM-(J)-Sat!iya Kumar & ors. vs. State of Andhra Pradesh & ors.

AIR 1971 A. P. 320.

c. Under the provisions of the Orissa Judicial Service Rules, H 1964, recruitment to the post of Munsiff is made by the Governor by ' means of a competitive examination : r. 5 Recruitment to the post of Sub-Judge is made only by the High Court by promotion from amongst Munshiffs r. 4.

Similarly, under the Orissa Superior Judicial Service Rules, 1963, recruitment to post of ADM(J) is made only by the High Court by promotion of Sub-Judges r. 10.

The Govenor mahs appointment to the post of District Judge, Wilcther by direct recruitment or by promotion: rr. 8 & 9.

e. These two sets of Rules are in accord with the provisions of Arts. 233, 234 and 235 of the Constitution.

AnJ they are also B in accord with the two decisions referred to above: [1970] 2 SCR 928, and AIR 1971 A. P. 320.

It may be mentioned that in Shamsher Singh's case [1975] l SCR 814-the power of dismissal was rightly he!J to be in the Governor because the dismissal was of a Sub-judge who had been directly recruited by the Governor, the post of Sub-judge who had been lowest post in the judicial service of Punjab.

3. High Court's power to impose penalties on District Judgesother than, those of dismissal or removaL The High Court has power to impose the penalty of reduction in rank. a.

The nature and extent of the High Court's "control" over the subordinate judiciary (including District Judges) under Article 235 of the Constitution was authoritatively determined in Bagchi's case-[1966] I SCR 771.

And the Jaw so laid down by the Supreme Court has been followed by the High Court.

b. It was held in Bagchi that the High Court's disciplinary control over District Judges is complete-subject only to the power cf the Governor in the matter of appointment and dismissal or removaL In exercise of power under Art. 235, the High Court can hold inquiries against District Judges under Art. 311 (2), and can impose all puni<hmcnts other than dismissal or removal, which are governed by Art. 311 ( 1) and are vested in the appointing authoriy, the Governor in the case of District Judges.

The ratio of Bagchi in this behalf is rested on Art. 311 of the Constitution.

The only logical basis for determining the extent of power to F hold inquiries and to impose punishments lies in Art 311.

Any other demarcation of the limits of the High Court's disciplinary power--e.g., on the basis of severity of the punishment involved-will necessarily have to be on an arbitrary basis, and will give rise to endless disputation as !Iii whether a particular punishment falls within, or outside of the High Court's control under Art 235. Dismissal and removal are excluded from the High Court's control not because of G the reverity of the punishment, but on account of their being relatable to the power of appointment.

Curtailment of the High Court's control under Art. 235, as expounded in Bagchi will erode the independence of the subordinate judiciary.

Reduction in rank is a punishment which does not, and cannot fall under the head of "dismissal or removal".

Reduction in rank is expressly excluded from Art. 311 ( l), and is mentioned as distinct from dismissal and removal in Art. 311(2). Reduction in

5 72

SUPREME COURT REPORTS

[1976] SUPPLE~!ENTARY

rank does not result in ouster from service, while dismissal removal does. or

N. S. Rao's case-[1975] 3 SCR 365-was concerned with the power of confirmation of a District Judge in the cadre.

The extent of the High Court's control in terms of disciplinary measures was not

ia issue.

And, the Supreme Court reiterated the decision in Bagchi at p. 374.

However, at p. 379, the following passage occurs:

'The Governor has power to pass an order of dismissal, removal or termination on the recommendations of the High Court which are made in exercise of the power of control vested in the High Court.

The High Court of course under this control cannot terminate the services or impose C any punishment on District Judges by removal. or reduction." emphasis added.

The first sentence describes the power to terminate, remove and dismiss as being vested in the Governor.

The next sentence excludes the power of termination, removal and reduction from the High Court control.

It is submitted that the word "reduction" which occurs in the aforesaid sentence is a non sequitur to what is being discussed/re-- capitulated in that passage, and appears to have crept in in place of of the word "dismissal" in view of the rreceding sentence in that passage.

The Court in Rao was not at all concerned with the H\gh Court's power to impose penalties and certainly not with the penalty of reduction in rank.

In any event, the existence of the word "reduction" in the aforesaid sentence cannot have the effect of overrnling, or curtailing, or even re-interpreting the High Court's disciplinary control under Article 235 as laid down in Bagchi.

Also, Rao does not purport to differ from Bagchi in any manner. Rao cannot be pressed into service by the Appellant in support of the contention that the High Court could not reduce him in rank from the post of District Judge to that of ADM ( J).

Whether a division Bench can decide the question relating to power to reduce in rank-

It is submitted that in the event this Hon'ble Court is inclined to take the view that power to reduce in rank does not fall within the High Court disciplinary control under Art. 235 as held in Bagchi then the matter ought to be placed before a Constitution Bench in view of the provisions of Art. 145(3) of the Constitution and the important and substantial question as to interpretation of Art. 235 and 311 being involved, and also re-consideration of Bagchi.

The Appellant's contention regarding his reversion in 1963 was not, as far as counsel for the High Court can recall, pressed at the hearing and cannot therefore be raised in the synopsis of arguments as is purported to be done in para 4(i) thereof.

In any

'.

B. MISHRA v. OR!SSA HIGH COURT (Ray, C.J.) 5 7 3

event, the question of the validity of the reversion was finally decided A by the High Court's decision reported at ILR 1966 Cuttack 503 and the refusal of special leave against that decision).

The other grounds for rejection of this contention that are recorded m the impugned judgment may also be seen.

6. Effect of the Appellant's appeals to the Governor against the High Court's orders of dismissal, reduction in rank, etc.

The Appellant's appeals were prefered under Rules 22(2) and 29(1) of the Civil Services (Classification, Control & Appeal) Rules, 1962, and were entertained by the Governor under the said

Hule~.

These Rules enable the Governor to consider the appeals on merits, and were so considered-and rejected. l!l other words, the Governor considered the entire matter on merits and had before him the entire record relating thereto which was forwarded by the

High Court. '

In these circumstances, it is submitted in the alternative to the preceding submissions, that even if it be assumed that the power of dismissal and of reduction in rank be vested in the Governor, the Governor may, in effect and in substance, be taken to have dismissed the Appellant. And the High Court's orders in this behalf may be taken as recommendations. In other words, both the High Court and the Governor being of the view that the Appellant ought to be dismissed from service (and, earlier, reduced in rank), it will be academic to consider where the power to dismiss and reduce in rank lies in the present case.

The Judgment of the Court was delivered by

RAY. C.J.-This appeal arises ou' of the judgment dated 3 December, 1973 of the High Court of Orisso.

The appellant filed a writ petition for quashing the order of the High Court dated 8 December, 1972 reducing the appellant in rank and fur quashing orders dated 3 December, 1973 passed by the High F Court dismissing the appellant from service.

The High Court dismisse_d the petition of the appellant.

The q,1estions for consideration are two.

First, whether the High Court was competent to reduce the appellant in rank. Second, whether the High Court could pass orders dlsmissing the appellant from service.

The appellant was appointed by the Governor as a Munsiff in the State of Orissa in 194 7.

He was in course of time promoted to the post of a Subordinate Judge.

The appellant was appointed by the Governor 011 28 March, 1962 as Additional District Magistrate (Judicial).

1n 1961 a separate cadre of Additional District Magistrates (Judicial) was created by the Government.

This new cadre was called "Superior Judicial Service_ Junior Branch''. This radre is not the same as that of District Judges and Additional District Judges who belonged to Superior Judicial Service Senior Branch.

Th~ appellant was on 15 January, 1963 reverted from the post of Additional District Magistrate (Judicial) to the rank of Subordinate Judge.

The appellant challenged the order of reversion in a writ petition in the High Court of Orissa. The writ petition was dismissed as will appear from the judgment reported in I.L.R. 1966 Cuttack 503.

The appellant made an application for special leave to appeal to this Court being Special Leave Petition (Civil) No. 53 of

1967. The application was rejected.

On 5 February, 1968 the High Court appointed the appellant to the post of Additional District Magistrate (Judicial) by promotion. It is said that under Rule 10 of the Orissa Superior Judicial Service Rules, 19G3 the High Court is the appointi>lg authority empowered to appoint Additional District Magistrates (Judi,, ial) by promotion frum the rank of Subordinate Judge.

On 31 July, 1968 the appellant was appointed by the Governor

as an Additional District Judge. ~

On 8 December, 1972 the High Court imposed on the appellant the punishment of reduction in rank from the post of Additional District and Sessions Judge to an Additional District Magistrate (Judicial).

The order passed by the High Court dated 8 December, 1972 records that in pursuance of the control vested in the High Court under Article 235 of the Constitution in a disciplil1ary proceeding initiated on charges dated 29 April, 1972 against the appellant an officiating member of the Orissa Superior Judicial Service Senior Branch the appellant is reduced in rank with immediate effect and 1s released from suspension.

On 30 March, 1972 the High Court passed an order in exercise of powers unl1er Article 235 fo the effect that the appellant wos placed ' under suspension forthwith because a disciplinary proceeding against the appellant was contemplated.

On 29 April, 1972 charges were servd on the appellant. He was asked to submit an explanation.

He did not <lo so.

He thereafter asked . for inpection of certain documents.

A Jate was appointed but he did not inspect any document.

With regard to the enquiry pursuant to the charges delivered to the appellant on 29 April, 1972 the learned Judge of the High Court who was the Enquiring Judge came to the conclusion that one of the harges was established that the appellant after pronouncing judgment on 22 June, 1971 penned through bis signatures on the judgment and entered into the or<lersheet that it was not delivered.

The Enquiring Judge also found the appellant guilty of tampering with the records of the Court.

The Enquiring Judge also found the appellant guilty of the charge that though the appellant was ordered by the Court pending enquiry and during his suspension to fix the Headquarters at Cllttack he did not comply with the order.

In the background of this Enquiry the High Courl ordered that th~ appellant be reduced to the rank of Additional District Magistrate.

The appellant challenged this order.

Alter the order of reduction on S December, 1972 the High Court A issued orders posting the appellant as Additional District Magistrate .Sambalpur and directed him to join at his new tat\on. The appellant did not join the new station nor did he apply for leave. A fresh disciplinary proceeding was started against the appellant for wilful absence from duty.

The matter was enquired into by a Judge ot th~ High Court.

The appellant submitted that the order reducing him was beyond the powers of the High Court. The Enquiring Judge found B him guilty The appellant was given an opportumty to show cause against the order.

The appellant did not do so.

The High Court thereupon imposed the punishment of dismissal on the appellant and dismissed him. One of the orders of dismissal recited that in pursuance of the order passed by the Court in exercise of its powers under Article 235 <'f the CQnstitution in a disciplinary proceeding initiated on charges dated l February, 1973 the appellant an officer of the Orisrn Judicial C Service Class I officiating in the Junior Branch ot the Orissa Superior Judicial Service is dismissed from service with immediate effect.

Another order of 3 _December 1973 reccted that in pursuance of the order passed by the Court in exercise of its powers under Article 235 the appellaut an officer of the Orissa Judicial Service Class I, officiating in the Junior Branch of:'the Orissa Superior Judicial Service, who has been convicted on the charge of criminal contempt by judgment ot D the Orissa High Court reported in I.L.R. 1973 Cuttack 134 (Registrar of the Orissa High Court v. Baradqkarta and Am-.) which was confirmed by the Supreme Court by judgment dated 19 November, 1973 (Baradakanto Mishra v. Registrar, Orissa High Court & Anr.) in Criminal Appeal No. 41 of 1973 is un the ground of conduct leading to such conviction, dismissed from service with immediate effect.

The judgment of this Court is reported in [1974]2 S.C.R. 282.

The respondents contended that the High Court has disciplinary control over Dis\rict Judges and in exercise of that power the High Court can hold an enquiry and can impos<; all punishments other than dismissal or removal.

The punishment of reduction in rank is said by the respondents not to be dismissal or removal because reduction in rank does not result in ouster from service.

The respondents,, F therefore, submit that the order of 8 December, 1972 reducing the appellant in rank _was within the contro~ vested under Article 235 of

the Constitution in the High Court.

With regard to the orders of dismissal the respondents submitted that the appellant preferred appeals from the orders.

The appeals were heard and dismissed by the Governor. The respondents, therefore, submit that the dismissal in effect and substance is G by the Governor. The orders of dismissal are said by the High Court to be recommendation to the Governor of dismissal of the appellant.

The respondents submit that the appellant did not challenge the order of the Governor, and, therefore, the order~ have become final.

A_r.tii; le 233 provides that the appointment, posting and promotion H of D1stnct Judge is by the Governor. The posting of a District Judge is the initial or the first posting as District Judge.

The promotion of District Judge is appointment of persons by promotion to

D_istrict fodges.

When a Subordinate Judge is appointed as a Distnct Judge the appomtment is by promotion but it is a fresh appointment by promotion to be a District Judge.

. Article 234 provides that appointment of persons other than Distnct Judg~ to the Judicial _Service of a State shall be made by the Governor m consultal!on with , the State Public Commission and with the High Court.

_Article 235 is relevant for the purpose of present appeal.

The Article states that control over district cour,:s and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial Service of a State and holding any post inferior to the post of district iudge shall be vested in the High Court, but nothing in this Article shaff be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

The scope of Article 235 has been examined by this Court in several decisions.

The important decisions arc The State of West Bengal v. Nripendra Nath Bagchi('); The High Court of Calcutta v.

Amal Kumar Roy( 2 ); High Court of Punjab and Haryana v. State Raryana (In the matter of N. S. Rao)( 3 ) The effec.t of the decisions is this.

The word "control" as used in Article 235 includes disciplinary control over District Judges and Judges inferior to the post of District Judge.

This control is vested in the High Court to effectuate the purpose of securing independence of the subordinate iudiciary and unless it included disciplinary cont(O] as well the very object would be frustrated.

The word "control" is accompanied by the word "ves'." which shows that the High Court is made the sole custodian of the con'.rol over the judiciary .. Control is not merely the power

to arrange the day-to-day working' of the court but contemplates disciplinary jurisdiction on the presiding Judge.

The word "control" includes something in addition to the mere snperintendence of these courts.

The control is over the conduct and discipline of Judges.

The inclusion of a right of appeal against the orders of the High Court in the conditions of service indicates an order passed in disciplinary jurisdiction. Th~ 'Yod "deal" in Article '23~ _also _indi_ca'.es that the control is over d1sc1plmary and not mere admm1strahve 1unsdiction.

The control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment including initial posting a!'d remotion of D_istr!ct Judges and dismissal, removal, reduc!Ion m rank of D1stnct Judges. Within the exercise of the control vested in the High Court, the High Court can ho!~ enquiries,, impose punisments othe~ than dismissal or removal sub1ect however to the cond1l!ons of service to a right of appeal if granted by te conditions of ervice, and to the giving of an opportun1ty of showing cause as reqmred by clause (2)

(j) [19661 ls.C.R. 771

(2) [19631lS.C.R.437.

of Aricle 311 unless such an opportunity is' dispensed with by the 6ovemor acting under the provisos (b) and ( c) to that clause. The High Court alone could make enquiries into disciplinary conduct.

In N. S. Rao's case (supra) this Court said "The Governor has power to pass an order of dismissal, removal or termination on the recommendations of the High Court which are made in exercise of B the power of control vested in the High Court.

The High Court of course cannot terminate the services or impose any punishment on District Judge by removal or reduction.

The cOntrol over District Judge is that disciplinary proceedings are commenced by the High

Court. If as a result of any disciplinary proceeding any District Judge is to be removed from service or any punishment is to be imposed, that will be in accordance with the conditions of service.

It is indisputable that the appellant was promoted to the post of Additional and Sessions Judge.

That is the cadre of District and Sessions Judge.

He was reduced in rank.

Reduction in rank is one of the major punishment mentioned in Article 311.

The major punishments are dismissal, removal, or reduction in rank.

The words "dismiss,, remove or reduce in rank" have stigma, namely, the meaning which they bear as three major punishments in Service Rules. The difference between: dismissal and removal is that dismissal ordinarily disqualifies any future employment and removal ordinarily does not

(See Parshotam Lal Dhingra v. Union of India('). If one is reverted by way of punishment for misconduct Article 311 ( 2) is attracted.

The expression "reduction in rank" means that the person who holds the position of a Subordinate Judge has .been reduced to the post of a Munsif!.

The rank of a Subordinate Judge is higher than that of the Munsiff.

But Subordinate Judges in the same cadre hold the same rank though , they have to be listed according to their seniority in the Civil List.

Therefore, losing some places in the seniority list in the same cadre does not amount to reduction in rank under Article 311(2l. (See The High Court of Calcutta v. Amal Kumar Roy) (2 ).

Reduction in rank may be brought about in the garb of a reversion. (See Debesh Chandra Das v: Union of India & Ors. (3)

It was argued in N. N. Bagchi's case (supra) that the extent of control exercisable by the High Courts under Article 235 must be so cut down as to keep disciplinary jurisdiction out.

This argument was not accepted by this Court.

This Court said that the provisions that certain powers are to be exercised by the Governor and no: by the High Conrt do not take away other powers from the High Courts.

This Court however incidenta!ly;; added that in exercising these special powers in relWion to inquiries against District Judges,, the Governor would always h~!I regard :to•1hc opinion of the High Court in the . .

(1) 119ss1 s.aR. s2s ·

(2) [1963] l S.C.R. 437.

(3) [1970] 1S.C.R.220.

3'-g33SCl/76. . f

maUer.

This <:ourt concluded by holding that there is nothing in Article 311 which compels the conclusion that the High Court is ousted of the jurisdiction to hold the enquiry.

The High Court within the power and control vested under Article 235 could hold disciplinary proceedings against the appellant and could recommend the imposition of punishment of reduction in rank on the appellant.

The actual power of imposition of one of the major punishments, viz., reduction in rank is exercisable by the Governor who is the appointing authority. The order passed by the High Court on 8 December,, 1972 reducing the appellant in rank is unconstitutional and is quashed.

The two orders of dismissal dated 3 December, 1973 arc based on the order of 8 December, 1972. The substratum of the orders of dismissal being unconstitutional the orders of dismissa1 cannot have any legal force.

Further, the contention of the High Court that the orders of dismissal passed by the High Court merged in the orders passed by the Governor cannot be accepted. If the order of the initial authority is void an order of the appellate authority cannot make it valid.

The order of the Governor used the word "confirm".

The appellant filed appeals to .the Government.

The appeals were dismissed.

The confirmation by the Governor cannot have any legal effect because that which is valid can be confirmed and not that which is void.

For the foregoing reasons as is pointed out in N. S. Ron's case the High Court cannot •terminate the services or impose any punishment on the District Judge. If as a result of a disciplinary proceeding any District Judge is to be removed from service or anv punishment is to he imposed that should be in accordance with the CQ!lditions of service.

In the present case the conditions of the Civil Services ( Classification Control and Appeal) Rules,. 1962, framed under Article 309

proides in Rule 14(~) at the appoi_nting nthority alone can impose penalties as specified m .cla~ (v1) to (IX) of ules.13 .. Cluse

(vi) is the penalty of reduction m rank 8!1~ clause (ix) is d1s1111S;5al from service.

Therefore, under the cond1hons of service the High Omrt cannot reduce in rank or dismiss a District Judge.

If the reduction of the appellant is without jurisdiction then the appellant is deemed to continue as a J?is1!ict Judge.

The High Court could not dismiss the appellant.

Dis1lllssal could only be by the Governor. This is clear fronj the decisions of this Court in H N. S. Rao's case (supra) and Shamsher Singh & Anr. v. State of Punjab('). ---------

(1) [1975] 1 S. C. R. 814.

...

The appeal is, therefore, accepted.

The judgment of the High A Court is set aside.

The orders passed by the High Court on 8 December,, 1972 and 3 December, 1973 are quashed.

In view of the orders being quashed the appellant will be deemed to be an Additional District Judge up to the date he retired. Parties will pay and bear , their own costs.

V.P.S.

Appeal allowed.

BARADAKANTA MISHRA

HIGH COURT OF ORISSA & ANOTHER

A. N. RAY, C.J.

M. H. BEG

JASWANT SINGH, jJ.

Constitution of India

Article 235

Art. 235

Art. 309

Art. 235

[1963] 1 S.C.R. 437

[1975] 3 S.C.R. 365

Art. 234

Art. 233

Art. 233

Art. 234

Art. 235

Art. 233

Art. 234

Art. 233

Art. 234

Art. 235

Art. 233

Articles 233 and 23

Section 16

General Clauses Act

Art. 235

Art. 234

Art. 233

Section 16

General Clauses Act

Art. 233

Art. 234

Articles 235

Article 309

s. 16

General Clauses Act

Provisions of the General Clauses Act

Art. 367

Arts. 233 and 234

Art. 311

Art. 311

Sec. 151

C.P.C

Article 235

[1966] 1 SCR 771

[1974] 2 SCR 282

[1974] 2 SCR 282

Article 233

(1970) 2 SCR 928

Article 235

Article 235

Art. 233

Article 234

Article 235

Arts. 233, 234 and 235

[1970] 2 SCR 928

Article 235

Art. 235

Art. 311

Art. 311

Art. 311

Art 311

Art 235

Art. 235

Art. 311

Art. 311(2)

[1975] 3 SCR 365

Article 235

Art. 235

Art. 145(3)

Art. 235 and 311

Article 235

Article 235

Article 235

Article 235

Article 235

Article 234

Article 235

Article 235

Article 235

Article 311

Article 311

Article 235

Article 311

Article 235

Article 309

[1975] 1 S. C. R. 814


R. C. SHARMA . - v.

UNION OF INDIA & ORS.

May 6. 1976

[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.l

Service niatter-Departmental proceedings-When could be declared null and void.

Procedure-Time Iiniit in delivering judgnient after hcarinz argu1nent.s<- If prescribed by C.P.C.

After holding a departmental enquiry on certain charges of contravention of Government Servants' Conduct Rules, the appellant was reduced in rank.

His suit for a declaration that the impugned action was void and inoperative was dismissed. The High Court dismissed his appeal. '

On appeal, it was contended that the departmental enquiry was vitiated on account of material irregularities, and that, as a result of excessive delay,. between the date of hearing ahd delivery of judgn1ent by the High Cuurt, it did not deal with a number of submissions made by him and thereby caused pre"" judice.

Dismissing the appeal to this Court,

HELD: (l){a) The question whether the appellant was given a reasonable opportunity to lead evidence and was sufficiently heard or hot is largely a question of fact. It is only when an opportunity denied is of such a naturei that the denial contravenes mandatory provision \of law or a rule Of batural justice that it could vitiate the whole departmental trial.

Prejudice to the Government servant from an alleged violation of a rule must be proved.

[583C]

{b) The plea that the appellant had been subjected to trial on allegations. which had been the subject-matter of previous ehquiries overlooks that no charge was framedl as a result of any previous enquiry. If an enquiry was

held at a particular stage, possibly to determine whether regular proceedings should be drawn up or started, it did not debar a departmental trial. [5830]

State of Assam & Anr. v. J. N. Roy Biswas. AIR 1975 SC 2277 and R. T.

Rangacliari v. Secretary of State. AIR 1937 PC 27, held inapplicable.

(c) It was not shown whether ahy evidence which the appellant tried to produce was really wrongly excluded and at what stage and for what reasons~ All these are questions of fact which should be raised in the departmental trial.

After that if there was any patent error a writ petition lay.

[584A1

(d) A suit challenging a departn1ental proceeding cahnot be treated as aa appeal from the findings in those proceedings or against a punishment inflicted upon the Government servant even if these were erroneous. A question which could affect the result in a civil suit has to be of such' a nature that it goes to the root of the jurisdiction that the conduct of the departmental trial illegally and vitiates the result. It is only if the departmental proceeding is null and void that a plaintiff could obtain the reliefs he had asked for.

[584EF]

Smt. Ui/am Bai v. State of U.P. & Anr. [1963] I S.C.R. 778 (iiJ_ 835, 836, referred to.

(e) Unless a paint could be raised on beha1f of an appellant which is capa .. ble of vitiating the departmental proceedings there could be 'no declaration that the departmental proceedings were null and void.

[585H]

' -

{2) The Civil Procedure Code di0e$ not provide a time limit for the period between the hearing of arguments and the delivery of a judgment. Nevertheless, an unreasonable delay between the hearing of arguments and delivery of a judgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable. even when written arguments were submitted. It is not unlikely that some points which the litiga11t considered important might have escaped notice.

But, what is more important is that litigants ntust have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1155 of 1971.

(Appeal by Special Leave from the Judgment and Order dated 17-11-1969 of the Allahabad High Court in First Appeal No. 178/61).

S. C. Manchanda, Sadhu Singh, R. N. Kapoor, Mrs.

Nirmala Gupta, Uu.al Singh and J. M. Khanna for the appellant.

Gobind Das, P. P. Rao, Girish Chandra and S. P. Nayar for the D xespondents.

The Judgment of the Court was delivered by

BEG, J. This is an appeal by special leave against the judgment and , orde,· of a Division Bench of the Allahabad High Court given by it on E 17th November, 1 \169, dismissing a plaintiff's first appeal arising out of an original11uit for a declaration that the order passed by the Commissioner of Income-tax, Lucknow, on 2nd April, 1956, reducing the appellant in rank from the post of an Income-tax Officer to that of an Income-tax Inspector, was void and inoperative. It appears that the appellant was in service upto 30th April 1958, when he was prematurely F retired.

The appellant also claimed Rs. 20,904/- as arrears of salary, but he reduced this claim to Rs. 16,561.29.

The appellant was originally appointed on 22nd November 1922, as Lower Division Clerk, and, thereafter, promoted as Income-tax Inspector in 1942. He was promoted to the post of Income-tax Officer in 1945. H; s case was that he had worked to the entire satisfaction of his immediate superior officers and higher authorities and had earned a number of certificates highly appreciative of his work. He was confirmed early in 1952 as an Income-tax Officer. He was, however, placed under >Uspension on 30th September, 1953, by the Commissioner of Income-Tax, U.P., Lucknow, on the basis of 8i preliminary enquiry on allegations involving rorruption and violation of service rules.

A Charges were framed on 30th December, 1953, by Shri A. K. Bose, Deputy Director of Investigations, who was appointed by the Commissioner of Income-tax as the Inquiring Officer. The preliminary enquiry had been conducted by Shri G. S. Srivastava, Inspecting Assistant Commissioner of Income-tax, Meerut.

B That first charge was that the appellant had entered into partnership with others, under the name of Gautam Cycle Mart, Meerut, in 1939, in contravention of the Government Servants' Conduct Rules.

The secoud charge was that he bad made various investments in the name of various members of his family far in excess of and disproportionate to the known sources of his income. His high standard of Jiving and C expenditure were also mentioned there. The third and the last charge gave particulars of thirteen assessment cases in, which the appellaint was alleged to be either "grossly negligent, careless, fuefficient, and/ or corrupt in the performance of his duties as Incometax Officer".

The appellant's defences included alleged confused nature of charges characterized by him as "vague, over-lapping, intermingled" and wrong" ly joined together. He also pleaded that there had been an enquiry in 1949, by Shri A. R. Sachdeva, Asstt. Inspecting Commissioner, into some of the matters mentioned in the charges, and about others in 1952 by Shri R. N. Srivastava, another Inspecting Commissioner, and that the appellant had been exonerated of the allegations and imputations made against him on each occasion. One of his defences was that a fresh enquiry into the sam.e charges was not permissible under the Departmental rules and was also barred by rules of natural justice. He also complained of failure to give him opportunity to produce nine witnesses in his defence with some documents.

It is evident that the questions raised by the appellant depended on findings of fact.

All relevant facts had been examined by the officer who held the enquiry and by the punishing authority. No malafides against either the Inquiring Officer, Shri A. K. Bose, Deputy Director Investigation, or against the punishing authority was alleged. Taere are, however, suggestions that Shri G. S. Srivastava and Shri R. N. Srivastava, Inspecting Assistant Commissioners, were pursuing the appellant for some unknown reason which we do not find stated anywhere. We fail to see how these two officers, who neither conducted the actual departmental trial nor could have any influence over the punishing authority, could cause any miscarriage of justice or do anything to vitiate the departmental trial merely because they hefd preliminary inquiries before framing charges. The defence of the appellant seemed something similar to the much too common a defence of the accused in criminal trials attributing all their misfortunes to the hostility of the police.

' -

The question whether the appellant was given a reasonable opportunity to lead evidence and to be heard or not is largely a question of fact. It is only when an opportunity denied is of such a nature that the denial contravenes a mandatory provision of law or a rule of natural justice that it could vitiate the whole departmental trial. Prejudice to the government servant resulting from an alleged violation of a rule must be proved.

The plea that the appellant has been subjected to trial ou allegations which had been the subject matter of previous enquiries overlooks that no charge was framed as a result of any previous enquiry. Therefore, the two authorities cited : The State of Assam & Anr. v. 1. N. Roy Biswas('), and R. T. Rangachari v. Secretary of State('), do not help the appellant. If an inquiry is held, at a particular stage, possibly to determine whether regular proceedings should be drawn up or started. it does not debar a departmental trial. That was the naturq of the previous enquiries. It appears that it is only after the appellant's activities had become more notorious that further enquiry was undertaken and regular charges framed. It is possible that the appellant may have been emboldened by the failure of officers to report earlier that charges should be framed and tried. In any case, this could not stand in the way of the first regular enquiry in the course of which charges were actually framed and fully enquired into by Officers whose integrity and sense of justice is not challenged.

As for the denial of the opportunity to produce nine witnesses in defence, all that is suggested is that these witnesses could only state what opinions they had formed about the work, efficiency, and integrity of the appellant. They could not say anything about the particular instances which formed the subject matter of the charges against the appellant.

It is not uncommon for astute Govt. servants, facing such enquiries, to give long lists of witnesses and documents so as to either prolong an enquiry or to prepare grounds for future litigation. Unless the exclusion 0f evidence is of a kind which amounts to a denial of natural justice or would have affected the final decision it could not be material.

In the case before us, it has not even been shown how the witnesses whose production was said to have been disallowed could help the appellant's case on specific charges.

Indeed, we do not know whether any evidence which the appellant tr"ted to produce was really wrongly excluded and at what stage and for what reasons. All these are questions of fact which should be, initially, raised in the departmental trial.

After that, if there was any patent error a writ petition lay. Finally, the

(I l A. I. R. [1975] SC 2277.

(2) A. l. R. 1937 PC 27.

trial Court and the High Court had coc<idered at some length all relevant questions raised.

Learned Counsel for the appellant has handed over a very carefully and laboriously prepared statement of facts of the case to show us that the evidence did not support the charges levelled against the appellant.

It was also submitted that, apart from the charges relating t0 partnership in the Gautam Cycle Mart, no other charge was found substantiated.

Furthermore, it was submitted that, after the inquiring officer had found that the Gautam Cycle Mart was started in 1942 and not in 1939, the appellant should have been given a further opportunity to meet a new case. No rule was cited in support of such a technical objection to the nature of the charge which would cover the starting cf the Gautam Cycle Mart at any lime subsequent to 1939 also. In any case, it was for the appellant to satisfy the Departmental authorities, which had looked into the case upto its final stages, that he had suffered some injustice which had to be set right. He had been given a second opportunity by the punishing authority before it inflicted the punishment of demotion.

Nothing further was required by law.

And, it was probably because the appellant was absolved of charges involving corruption in the discharge of his duties that he was given the lesser punishment of demotion and neither d!srnissed nor removed fro1n service.

A suit chaJlenging the validity of departmental proceedings cannet be treated as an appeal from the findings in the dcpannental proceedings or the punishment inflicted upon the Govt. servant even if these are c:·- roneous. A question which could affect the result in a civil suit has to be of such a nature that it goes to the root of th~ jurisdiction and the conduct of the departmenal trial and vitiates the result. It is only ii

the departmental proceeding in null and void tl1at a plaintiff in such a suit could obtain the reliefs he had asked for.

We are unable to see what point had been raised by the appellant which could have had that effect upon the departmental proceedings.

In Smt. Ujiam Bai vs. State of U.P. & Anr.('), this Court said "' (at p. 835) :

"A tribunal may lac.k jurisdiction if it is improperly constituted, or if it fails to observe certain essential preliminaries to the inquiry.

But it does not exceed its jurisdiction by basing its decision upon an incorrect determination of any question that it is empowered or required (i.e.) has jurisdiction to determine".

After citing a passage from Halsbury's Laws of England, 3rd Edn.

Vol. 11, page 59, this Court held (at p. 836)

(I) (1963] I S.C.R. 778@ 835, 836.

"The characteristic attribute of a judicial act or decision A is that it binds, whether it be right or wrong.

An error ol law or fact committed by a judicial or quasi-judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends.

These principles govern not only the findings . of inferior courts stricto sensu but also the findings of administrative bodies which B .are held to be acting in a judicial capacity.

Such bodies are deemed to have been invested with power to err within the limits of their jurisdiction; and provided that they keep within those limits, their decisions must be accepted as valid unless set aside on appeal".

Learned Counsel for the appellant said all that could possibly be C said on behalf of his client. He pointed out that the High Court had , given its judgment eight months after it had heard arguments.

He .urged that the result was that the High Court did not deal with a number of submissions made because they had, apparently, been for- :gotten. The Civil Procedure Code does not provide a time limit for the period between the hearing of arguments and the tlelivcry of a judgment.

Nevertheless, we think that an unreasonable delay between D hearing of arguments and delivery of a jucjgment, unless explained by .exceptional or extraordinary circumstances, is )lighly undesirable even when written arguments are submitted.

It is not unlikely that some points which the litigant considers importani may have escaped notice. But, what is more important is that litigants must have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and E delivery of judgments. Justice, as we have often observecl, must not only be done but must manifestly appear to be done.

On 4th March, 1971, however, the High Court refusing the certificate of fitness of the case for appeal to this Court observed that questions had been attempted to be raised before it in asking for certification which had not been argued at the time when the first appeal was heard by the High Court. We find that one of the learned Judges who dismissed the application for a certificate of fitness ot the case had also heard the arguments in the first appeal.

There is no affidavit before us that any particular points argued before the Division Bench had not been referred to or dealt with by the Bench.

Moreover, the Division Bench had probably not dealt with all arguments on questions of fact because it did not consider it necessary to do so. After all, it was not hearing an appeal against the findings of the departmental authorities. It pointed this out. Furthermore. after hcarin g the argum.ents of the learned Counsel for the appellant, we are ourselves unable to see any point which could be raised on behalf of the appellant capable of vitiating the departmental proceedings.

Unless such a point could be raised, there could be no declaration that the departmental proceedings were null and void.

There is also an application before us for revocation of grant of special leave to appeal by this Court on the ground that some material

facts were suppressed or misrepresented for the purpose of obtaining special leave. Although the _special leave petition does not state that all the points sought to be raised by it were not argued before the Division Bench, this is not enough to n:erit cancc11aCon of the special leave to appeal which was granted by this Court. At the time of grant of special leave, the order refusing grant of certificate of fitness of the case for appeal to this Court must have been before this Court. We are unable now to see the point on whic_h special leave was granted.

But, that too would not, by itself, merit a revocation of special leave at this stage after hearing arguments.

We, therefore, dismiss both the appeal and the application for re- • vocation of special leave. Parties will bear their own costs.

P.B.R.

Appeal dismissed.

...

R. C. SHARMA

UNION OF INDIA & ORS

A. N. RAY, C.J.

M. H. BEG

JASWANT SINGH, JJ

C.P.C

AIR 1975 SC 2277


• •

SUBHASH & ANOTHER v.

STATE OF U.P.

May .6. 1976

[Y. V. CHANDRACHL'D, R. S. SARKARIA AND P. N. Sil!NGHAL, JJ.]

CoJe of Crin1itl[;./ Procedure, S. 314-Referen€e far c£>nfirmatlon of deatli sentence, whethr High Court obliged to examine entire evidence independently.

Ram Sanehi received tv.ro gun-shot v; ounds on his chest, and died' within ten minutes. Two of hi> children claimed to have witnessed the occurrence .. The dead body v.as subfected to post-mortem only after about 24 hours had elapsed.

The same evenine. appellant Subhash surrendered, and appellant Sbyam Narain

\\.as arrested, though for another offence altogether. The Sessions Court con- C victed ttem under s. 302 I.P.C. and sentenced Subhash to death and Shyam Narain to imprisonment for life. The accused moved the High Court in appeal,

\vhile the Se:.si.ons Court referred the matter to it under s. 374, for confirmation of the de;;.tlrsentence. ;.

The question before this Court was, \\'hetbr i~· iiie case of such references. the High Court was obliged to examine the entire evidence. independe.ntly.

 AIJowing the appeal, the Court, U>

HELD : On a reference for confirmation of the senrence of death, the High Court is under an obligation to proreed in accordance with the provisions of sections 375 and 376 of the Criminal Procedure Code. The High Court must not only see \\ hethr the other order passed by the Sessions Court is correct but it is under an obligation to examine the entire evidence for itself, apart from and independently of the Sessions Court's appraisal and assessment of that evi<lence. f589A-BJ

J1llnmGn and Ors. v. The State of Punjab AIR 1957 S.C. 460;. Ram Shanker Singh and Ors. v. State of JVest Bengal [1962] Supp. 1 SCR 49 &t 59 and B!tupendra Shu:f1 v. Tf1e State of Punjab [1968] 3 SCR 404. folIO\vcd.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 420 of 1974.

Appeal by Special Leave from the Judgment and Order dated 27-11-74 of the Allahabad High Court in Criminal Appeal No. 2646( 73 and Referred No. 95 /73.

Frank Anthony, E. C. Agarwala and A. T. M. Sampatft; for the Appdlams.

0. P. Rana; for the Respondent.

The J udgmcnt of the Court was delivered by

CHAKDRACHUD, J. The appellants, Subhash and Shyam Narairr,

were convicted by the learned Civil and Sessions Judge, Farrukhabad under section 302 of the Penal Code on the charge that at abouh

9 a.m. on June 9, 1972 they committed the murder of one Ram Sanehi~

t Subhash was sentenced to death and Shyam arain to imprisonment~ HI for life.

The judgment of the trial court having been confirmed .i.n. appeal by the High Court of. Allahabad, the two accused have filed this appeal by special leave of this Court. ·

The case of the prosecution is briefly as follows : Oa the morning of June 9, 1972 the deceased Ram Sanehi had gone to his field along with his son Bal Kishorc and his daughter Kusuma Devi for eatin!J Kharbuzas.

While they were returning from the field al about 9 a.m. the appellants, who were lying in wait near a culvert, suddenly accosted

Ram Sanehi.

The appellant Subhash pointed the barrel of his gun towards the chest of Ram Sanehi and said that since he, Ram Sanehi, was a witness against him in a complaint filed by Pooran Lal and since he was also doing Pairvi on behalf of Pooran Lal he would not be allowed to remain alive.

The appellant Shyam Narain was armed with a lathi.

Bal Kishore and Kusuma Devi pleaded .vith the appellants to spare their father but Sh yam Narain asked Sub hash not to delay the matter and finish Ram Sanehi quickly.

Subhash thereupon fired three shots from his double-barrelled gun, the last of which misfired.

Ram Sanehi fell down, whereupon the appellants dragged him by his legs over a distance of 6 or 7 paces.

Bal Kishore and Kusuma Devi then raised an alarm whereupon Brij Bhusan, Shyam Lal, Mangali Prasad and Jhabbo Singh Thakur reached the place of occurrence and challenged the appellants.

Before running away, the appellant Subhash told his companion Shyam Narain that he on his own part was going to surrender before a court and that Shyam Narain should make his own arrangements.

Ram Sanehi died within about 10 minutes after receiving the injuries.

Bal Kishore first went to his house which is at about a distailce of 120 yards from the scene of offence.

At about 12 O'clock at noon he went to the Kamalganj police station and lodged his First Information Report (Ex. Ka-3). S.T. Vishwanath Sharma who was posted asa 2nd Officer at the police station recorded Bal Kishore's complaint, went to the scene of occurrence, prepared the inquest report and handed over the dead body for being sent for post-mortem examination to the District Hospital at Farrukhabad which is about 10 miles away from the village of Kandharpur where the incident took place.

S.T.

Sharma took samples of earth from the place of occurrence and seized a misfired cartridge which was lying concealed in the folds of the deceased's Dhoti.

The Fard in that behalf is Ex. Ka-10 and the site-phn is Ex. Ka-11.

The appellant Subhash surrendered before the Additional District Magistrate (Judicial) at Farrukhabad at about 4 p.m. on the \'ery day.

The appellant Shyam Narain was arrested at about 2-40 p.m. on the same day under section 122 of the Railway Act for crossing the railway lines at Fatehgarh.

The appellants denied the charge that they had committed the murder of Ram Sanehi and stated that they were involved in the caee due to enmity.

This defence has been rejected both by the Sessions Court and the High Crt.

. H Before referring to the evidence in the case it has to be mentioned that the High Court had before it not only the appeal filed by the accused but also a reference made by the Sessions Court for confirma-. tion of the capital sentence under section 374 of the Code of Criminal

.. •

Procedure.

Time and again this Court has pointed out that on a reference for confirmation of the sentence of death, the High Court is under an obligation to proceed in accordance with the provisions of sections 375 and 376 of the Criminal Procedure Code.

Under these sections the High Court must not only see whether the order passed by the Sessions Court is correct but it is under an obligation to examine !he entire evidence for itself, apart from and independently of the Sessions Court's appraisal and assessment of that evidence.

From the long line of decisions which have taken this view it wpnld be enough to refer to the decisions in Jumman and Ors. v. The State of Punjab('), Ram Shunker Singh & Ors. v. State of West Bengal(') and Bhupendra Singh v. The State of Punjab( 3).

The High Court has failed to show due regard to lb.is well-established pooition in law. It did not n.ndertake a full and independent examination of the evidence led in the case and it mainly contented itself with finding out whether the Sessions Court had ill' any manner erred in reaching the conclusion that the charge of murder levelled against tlte appellants was established beyond a reasonable doubt.

The High Court is right in saying that the main question in the case was whether Bal Kishore and Kusuma Devi who were examined as eye-witnesses were truthful witnesses.

But then it did not subject their evidence to any minute scrutiny.

Impressed overbearingly by the circumstance that the Sessions Court "had the opportunity of observing the demeanour" of the witnesses, the High Court apparenty thought that such an opportunity gave to the Sessions Court's judgment a mystical weight and authority, even though the learned Sessions Judge had not, in his judgment or while recording theevidence, made any special reference to the demeanour of the witnesses.

The High Court accepted the evidence of Ram Sanehi's children by observing that there was no material contradiction in their evidence and that certain statements in the F .I.R. afforded a guarantee that the two witnesses were present when their father was done to death.

We will now proceed to show how several significant circumstances either escaped the attention of the High Court or were not given their due and rightful importance.

First as to the manner in which S.I. Sharma conducted investigation into the case. The offence took place at about 9 a.m. on June '' and though the District Hospital at Farrul<:hab'd was iu't 10 miles away, the dead body was not received at the hospital for nearly 24 hours after the incident had taken place.

The excuse offered by the prosecution that cartman was not willing to tal<:e . the body at night is utterly flimsy .because tbe Investigating Officer could have easily made

some alternat~ adiigemen~}or despatfhlng the dead bo\fy'_f9r postmortem exam1nat10n .e:xped1t10usly. With the dead. body ly;1ng t the scene of offence for ne&rly 12 hours and. thereafter at the police station for another 8 or 9 hours, it was.easy yn011gh Jor the witnesses to moul.d

I , I , '

(I) A. I. R. 1957 $. 0. '46(). '

(2) [1962] Supp. I S. C;'il.''49 at 59.

(3) [19681 j S. 'C. R. 404.

.· . .l''

their statements so as to accord with the nature oi injuries.

The Investigating O!licer did not make any note at all in the General Diary as to which witnesses were examined by him on the date of the occurrence which was obligatory upon hiiµ to do under paragraph 44 of the

U.P. Police Act.

The time when the investigation was connnenced and the time when it was concluded are not mentioned in the case diary.

The time when the Investigating Officer reached the village and the time when he returned to the police station are also not noted in the case diary.

SJ. Sharma stated in his evidence that several important facts concerning the investigation were being stated by him in his evidence from memory.

He reached the scene of offence at about 2-30 p.m. but it was not until abouf 6 p.m. that he inspected the site.

The dead body was not removed from the scene of offence till about 9 p.m. and even that is open to grave doubt because the Investigating Officer has admitted in his evidence that he was unable to say as to when the dead body was taken way from the spot and whether it was taken directly to the hospital or was detained somewhere on the way.

He was unable to say whether it was right or wrong that the dead body remained in the village till about 4 O'clock on the morning of the 10th.

Forty or fifty persons had gathered at the scene of offence when the Investigating Officer arrived but the record of the case does not show that the statement of any of those persons was ever recorded.

In fact even the statement of Kusuma Devi was recorded late at night for which the reason is stated to be that her elder sister Pushpa Devi died of shock on the evening of the 9th after hearing of her father's murder. It may be that Pushpa Devi died on the 9th, but apart from the cause of her death, the statement of Kusuma Devi need not have been held up so long.

We are doubtful ii the Investigating Officer at all knew on the 9th that Pushpa Devi had died.

He has admitted that his knowledge in that behalf was derived from hearsay reports.

The appellant Subhash had surrendered before the Additional District Magistrate, Farrukhabad on the afternoon of the 9th itself while the other appellant Shyam Narain was arrested at Fatehgarh at about 2-40 p.m. The Investigating Officer did not even know of these significant developments, though they had taken place just a few miles away from the scene of invtigation. He says that he learnt of the surrender and the arrest of the appellants on the evening of the 12th. Mangali Prasad has been examined by the prosecut; on as an eye-witness and his name is mentioned in the F.I.R. as one of the four persons who arrived at the scene of offence even befoce the appellants had run away. His statement was recorded 11 days later on June 20.

The F.I.R. mentions expressly that the appellants caught hold of the legs of the deceased and started dragging him. The Investigating Officer has not stated in the Panchnama of the scene of offence whether the ground was soft or hard or sandy which had great relevance on the allegation that the deceased was dragged over a certain distance.

Finally, it is surprising that the Investigating Officer did not think it worthwhile to pay a visit to the field where the deceased is alleged to have gone with his children for eating Kharbuzas.

Indeed, he stated that he was not in a position to say if there were Kharbuzas at all in the field, wlten the occurrence took place.

The High Court has condone<! these lapses on the patt of the Inves- A

tigating Officer with the observatin tht he "appears to .have been inexperienced and somewhat negligent . . The Invest1gatmg Officr has stated in bis evidence that he had put m 7 years of service. It 1s difficult to understand on what basis the High Court attribU(ed the Japses on his part to mee iuexperience.

We will. pesenty idicate the significance of the vanous lapses and loopholes m mvesligat1on but B to say, as the High Court has done, that the Investigating Officer was

"somewhat negligent" seems to us in the circumstances a grave euphemism.

We will now proceed to deal with the various circumstances which, in our opinion, render it nnsafe to accept the prosecution case. c Dr. S. C. Pandiya who performed the post-mortem examination has described in his evidence the injuries received by Ripn Sanehi. In all he found 7 injuries on the dead body, out of which injuries l, 3 and 7, injuries 2 and 4, and injuries 5 and 6 are interconnected.

Injury No. 1 is described as a "shot wound" with its entry abo_ve the left nipple.

Injury No. 3 is described as multiple rounded abrasions on the Mt side of the chest.

Injury No. 7 is the wound of exit on the right scapular region, corresponding to injury No. 1.

Injury No. 2 consists of 8 gunshot wounds of entry below the right nipple while injury No. 4 consists of multiple rounded abrasions above the right nipple. Injury No. 5 is a gun-shot wound of entry on the back of the left forearm while injury No. 6 is the corresponding wound of exit near the ulnar aspect of the left forearm.

The evidence of Dr. Pandiya and the description of the injuries given by him in the post-mortem report tend to show that two different kinds of firearms were used by the assailants of Ram Sanehi.

Injury No. 1 was caused by a bullet and that is clear not only from the des- <:ription of the injury but from what Dr. Pandiya has stated in his evidence.

He says : "The bullet, which had entered through injury No. 1 went out straight after emerging from injury No. 7". Injuries' N'os. 2 and 5 were caused by pellets.

This shows that whereas injury No. 1 was caused by a firearm in the nature of a rifle, injuries 2 and S were caused by an ordinary gun.

The medical evidence thus falsifies the eye-witnesses' account according to which, the appellant Subhash-alone was armed with a double-barrelled gun, the other appellant Shyam Narain being armed with a lathi.

The objective inference arising from the nature of injuries received by the deceased has a significant impact on the case of the prosecution, which has been overlooked by beth the Sessions Court and the High Court.

While we are on the medical evidence it would be appropriate to mention that there was no tatooing or charring on any of the firearm injuries which, accordillg to the doctor, shows that the firing was done H ' from a distance of more th an 4 feet.

In the First Information Report Bal Kishore has stated that as soon as he, his father and sister, reached the culvert, Subhash "touching the chest" of Ram Sanehi "with the

barrel of his gun'' said that he shall not leave him alive; Shyam Narain thereupon exhorted Subhash not to delay and fire immediately; Subhash then tired three shots in quick succession, one of which misfired.

The trend of the F.I.R. is that Subhash fired the first two shots at Ram Sanehi from a point blank range, in which event indisputably, there would have been tatoomg and charring around the injuries.

Bal Kishore has attempted to offer an explanation that what he meant to say in bis compaint was that Subhash trained his gun "towards" Ram Sanehi's chest and not '"on" his chest.

This explanation is an afterthought and in the circumstances difficult to accept.

Thus in another imI_Jortant respect, the medical evidence falsifies the case the prosecution. .

9 c There is anpther aspct of the medical evidence which, though, not as important as the two aspects mentioned above, may also be referred to.

The case of the prosecution is that RaqSanebi had gone to his Kharbuza field with his son and daughter for eating Kharouzas. There is evidence that they did eat Kharbuzas and almost immediately thereafter they started back for home.

Within less than 5 minutes, Ram Sanehi met with his death near the culvert.

The post-mortem report D shows that Ram Sanchi's stomach was empty which means that the evidence that he had eaten Kha.rbuzas just a little time before his death is untrue.

Bal Kishore tried to wriggle out of this situati9.fi by saying that Ram Sanehi had eaten just a small slice cf Kharbuza.

But even there, Dr. Pandiya has stated that if the entire lice of Kharbuza was eaten by Ram Sanchi, its remains would be found in the stomach provided there was no vomiting after the gun-shot injuries. Since Ram E Sanehi had not vomited, his large intestines could not have been f9und to be empty if the story of his children was true.

This last circumstance may at first sight seem trivial but its importance consists in the fact that the visit of Ram Sanehi, along with his children, to the Kharbuza field for the purpoe of eating Kharbuzas is the very genesis of the incident which happened on June 9, 1972.

Coupled with the circum, tance that the Investigating Officer did not even pay a visit to the Kharbuza field, leave alone making a Panchnama thereof, the conclusion is irresistible that the story that the children had accompanied their father to the Kharbuza field lacks a factual basis.

The other circumstances which render the proscmtion case suspect are these : (1) Ram Sane hi is aljeged to have bee!) dragged over 6 or . 7 ]'.laces by the appellants.but not even an abrasion was found on his back or stomach which could be attributed to, dragging. (2) Thirty or forty persons are alleged to have collected at the scene of occurrence but Bal Kishore :was not able to mention the name of even one of them and it is common groimd t)1at the Investigating. Officer did not

r~?rd tl)e tateep.t .of anri of them. .( 3) Jh.:il; lboo Sittl,'h, Shya~· , Lal, Bn_i,!Bl111shan anil M;<µigali Prasad reached the scyne of ofience even before .(h¢ , appelfants , had. fled away but none front amongst the first thre.e was examined b:,< the prosecution.

Mangall Pr? fad was examin--

' '

ed as an eye-witness but he has been concurrently disbelieved by the Sessions Court and the High Court. ( 4) Though the motive of the offence is alleged to be that in a complaint filed by Pooran Lal against the appellant Subhash, the deceased Ram Sanehi was cited as a witness, Mangali Prasad's evidence shows that immediately after the firing, Bal Kishore told him that Ram Sanehi was murdered because of the disputes concerning the election to the Pradhanki. What Bal Kishore told Mangali Prasad immediately aftr the incident seems m01e probable because, one Virendrapal haJ contested that election and the appellant Subhash had defeated him.

When Bal Kishore went to lodge his F.I.R. at the police station he was ac_companied by Virendrapal, though an attempt was made to show that Virendrapat was only standing outside the police station and had met -Bal Kishore accidently. (5) The story of Bal Kishore that after the appellant Snbhash fired 2 shots he re-loaded his gun but the re-loaded cartridge misured makes hardly any sense. Subhash was armed with a double barrelled gun and having fired 2 fatal shots from a close range at his target, it is unlikely that he would re-load the gun and that too with only one cartridge.

And if that cartridge misfired, it is impossible to understand how it could be found concealed in the folds of Ram Sanehi's dhoti.

There is only one other aspect of the matter which remains to be considered and since the High Court has placed great reliance thereon, it is necessary to deal with it.

The F.I.R. which lodged at about 12 O' clock at noon on the 9th itself mentions that after Ram Sanehi was murdered, the appellant Subhash told his companion Shyam Narain that he himself was going to surrender before a court and that Shyam Narain should make his own arrangement. In fact, Subhash did surrender in the court of the Additional District Magistrate, Farrukhabad, at about 4 p.m. on the 9th..

What the High Court has overh1oked is that Subhash did not surrender in connection with the murder of Ram Sanehi but. he surrendered along with the 13 or 14 other accused against whom Pooran Lal had filed a complaint. In so far as Shyam Narain is concerned, the lligh Court is wrong in saying that he managed somehow to get himself arrested.

The evidence of Constable Virendra Singh shows that Shyam Narain was arrested because he was crossing the railway lines and if he was not caught, he would have been run over by the two trains coming from Kanpur and Farrukhabad.

This was hardly any sensible way of making an "arrangement" for himself, as directed by Subhash. It is therefore not as if the statement attributed to Subhash in the F.I.R. is corroborated by subsequent events so as to afford a guarantee to Bal Kishore's presence at the culvert.

We are conscious that the Sessions Court and tbe High Court have

both held that the appellants committed the murder of Ram Sanehi H but the weight of the circumstances which we have discusse4 above is so preponderating that even .the concurrent finding cannot be allowed

49-833 Sup C I/76

A to stand.

In any event, it. seems to us impossible to hold that the prosecution has established its case beyond a reasonable doubt.

We therefore allow this appeal, set aside the order of conviction and sentence recorded by the High Court and the Sessions Court and direct that the appellants shall be set at liberty.

M.R.

Appe-al allowed.

! '

SUBHASH & ANOTHER

STATE OF U.P

R. S. SARKARIA

S. 314

s. 302

I.P.C

s. 374

sections 375 and 376

[1968] 3 SCR 404

section 302

Penal Code

section 122

section 374

sections 375 and 376

Police Act