B. PRABHAKARA RAO

DESARI PANAKALA RAO & OIBERS

April 5, 1976

[Y. V. CHANDRACHUD, V. R. KRISHNA !YER & N. L. UNTWALIA, JJ.J ·

Motor Vehicles Act. 1947-Ss. 47 and 57-Andhra Pradesh State Tramport Appellate Tribunal Rules, 1971, r.15-Va/idity of.

Tribunal-If had power to admit evidence beyond the tilnt limitttl by s. n~J. .

Rule 15 of the Andhra Pradh State Transport Appellate Tribunal Rules, 1971, states that parties to the appeal or application shall not be entitled to produce additional evidence, whether oral or documentary, before the Tribunal e:xcept in cases stated therein but it empowers the Tribunal to allow evidence o! documents to be produced or witnesses to be examined for any other sum~ c1ent reason.

The Regional Transport Authority granted a stage carriage permit to the appellant.

Before the State Transport Appellate Tribunal another applicant produced certain information against the appellant which was not mentioned either in his history sheet or in the representations of any party under s. 57(3) of the Act.

Rejecting the appellant's objection that such new grounds could not be heard from an pbjector at the stage of appeal, the State Transport Appellate Tribunal cancelled the appellant's permit and gave it to respondent No. 2.

On appeal it was contended that a representation under s. 57(4) could not be made at the appellate stage beyond the time limited by that section and if rule 15 permitted it, it violated the substantive provisions of the Act.

E Dismissing the appeal,

HEID : Rule 15 is intra vires and it merely makes patent what is otherwise l...\ latent in the statutory provisions. Rule 15 does not entitle parties to the appeal, or application to produce additional evidence but clothes the Tribunal with d.iscretionanr power to allow such evidence. What is received is not qua representation under s. 57(4) but qua evidence with public interest flavour.

[1041F; I039Cl

United Motor Works, A.I.R. 1964 Pat. 154 and Cumbum Roadways, A.I.R. 1965 Mad. 79, approved.

(a) Public interest is the paramount consideration in transport business while private rights apparently constitute a quasi-lis for decision. The touchstone of better merit is solely the ability to serve the public and the hierarchy of transoort tribunals. bearin~ true faith and allegiance to s. 47 of the Motor Vehicles Act. 1948 have the duty and, therefore, the power to consider all factors pertinent to the larger scheme of efficient public transport. The duplex scheme of the statute is the holding of a public enquiry to determine who will serve public interest best but ordinarily activated into that enquiry by private applicants for permits. The pro bone publico character of the hearing cannot be scuttled in the name of competitive individual rights and narrow procedural trappings. [I033E-GJ

(b) Section 47 enjoins upan the Regional Transport Authority to have regard to the presiding idea of public interest generally and iii its ramifications as set out ins. 47(1)(a) to (f). In addition, the RTA shall also receive repre<entations as mentioned therein and take them into the reckoning. It is not as if the sole sollrce of decision-making materials consists of the representations made under s. 57(3) within the time stipulated in s. 57(4). The primary channel .ta the information that the RTA may gather bearing on matters touched upon 1n ' 47(l)(a) to (f) supplemented by facts stated in representation referred to In

. 1032

i. 57(3). Under s. 47 passengers' associations, police officers, local authorities and existing operators who may have nothing directly to do with the rivalry for A a permit have a place in the scheme and may make representations on a variety of matters.

So lso, in an appeal, the RTA it<; elf may be heard.

Thus_. the ronsiderations going into the judicial verdict are dominated by public interest~

non-parties who have only to present points germane to public interest are allowed to represent their point of view. [1038C; !035B'Cl

CIVIL APPELLATE JURISDICTION: Civil Appeal No.,1989 of 1975.

Appeal by Special Leave from the Judgment and Order dated the 28th November 1975 of the Andhra Pradesh High Court in Writ Appeal No. 1038 of 1973.

M. N. Phadke and B. Kantarao, for the Appellant.

V. S. Desai, K. R. Chaudhury, S. L. Setia and Mrs. V. Khamw, C for Respondent No. 1.

The Judgment of the Court was delivered by

KrusHNA !YER, J.

Counsel for the appellant-a jolted transport op"ator--has assertively argued for an untenable position, heedless of the true nature of 'transport permit' jurisprudence.

The sole issue on which limited leave has been granted to him by this Court under Art. 136 lends itself to straight forward resolution, once we grasp the public character of the litigation and public purpose of the jurisdiction where permits regulating the plying of stage carriages are awarded or refused.

The conscience of this branch of public law is justice to the public, although, in the process of adjudication, private claims to carry on transport business through permits are comparatively evaluated. Public interest is the paramount consideration, while private rights, fundamental though, apparently constitute the quasi-/is for decision. The touchstone of better merit is solely the ability to serve the public, and the hierarchy of transport tribunals, bearing true faith and allegiance to s. 47 of the Motor Vehicles Act, 1948 (for short, the Act) have the duty and, therefore, the power to consider all factors pertinent to the larger scheme of efficient public transport. To equate-and thereby hamstring-this jurisdiction and processual law with what governs a civil proceeding under the Civil Procedure Code, is to miss the policing policy of the law and maim the amplitude of the powerduty complex. In other words, the duplex scheme of the statute is the holding of a public enquiry to determine who will serve public interest best but ordinarily activated into that enquiry by private applicants for permits.

The pro bono publico character of the hearing cannot be scuttled in the name of competitive individual rights and narrow procedur11.l trappings.

The minimal facts.

The appellant and the 1st respondent, among others, applied for permits to ply a stage carriage on a specified route in the Krishna District, Andhra Pradesh.

Although there were two permits for issuance, one was given to R2 and that has become final.

We are now concerned only with the other permit which had been granted by the Regional Transport Authority (acronymically, RTA) to the appellant but was switched over to the 1st respondent by the

State Transport Appellate Tribunal (STAT) or taking into consideration a fresh ground and supporting evidence to the effect that the appellant was guilty of a transport tax violation and had compounded that offence under s. 60(3) of the Act.

The power in this behalf was stated to be based on r. 15 of the Andhra Pradesh State Transport Appellate Tribunal Rules, 1971 (hereinafter referred to as the Appellate rules), which reads :

"15. Additional Evidence (i) The parties to the appeal or application shall not be entitled to produce additional evidence whether oral or documentary before the Tribunal but,- ( a) if the authority from whose order the appeal or application is preferred has refused to admit evidence which ought to have been admitted, or

(b) if the party seeking to adduce additional evidence satisfies the Tribunal that such evidence, notwithstanding the exercise of due diligence was not within his knowledge or could not be produced by him at or before the time when the order under appeal was passed; or ( c) if the Tribunal requires any documents to be produced or any witnesses to be examined to enable it to pass just orders; or

(d) for any other sufficient reason, the Tribunal may allow such evidence or documents to be produced or witnesses examined : Provided that where such evidence is received the other party shall be entitled to produce rebutting evidence, if any.

(ii) If the Tribunal is of opin'on that any witness should be examined in connection with any case before it, ; t may instead of examining him before itself, issue a commission to the concerned Regional Transport Authorities or the State Transport Authority as the case may be, or to an Advocate or such other suitable person as it may deem fit, in the circumstances of the C'ase." The vires of this rule was challenged before us and we will examine the contention.

But, to continue the narrative,. when the appellate authority deprived the appellant of his permit he attacked the order without avail, before the High Court at both tiers.

Un<launtccl. he has carried the appeal to this Court where the controversy is confined to the validity of r. 15, although we have heard arguments on a wider ba<is to apprec; ate the point made by counsel.

The argument of ultra vires umed before us rests on the scone of ss. 57(4) and 64 of the Motor Vehicles Act and the fitrnent of r. 15 into the purpose and text of these provisions.

Hav; ng heard counsel on both sides, we are disincl'ned to accede to th 0 submission of Shri Phadke for the appellant. Why? We will proceed to answer. ·

Rulings galore, of this Court and the High Courts, have focussed A on s. 47 of the Act to emphasize that the quasi-judicial bodies entrusted with the work of issumg stage-carriage permits must be conscious of the brooding presence of public interest, in the midst of the sparring contest of private applicants.

A casual perusal of that provision brings home this juristic under-pinning of the jurisdiction. Against this background, we may notice the meaning of the clauses which broaden the nature of the enquiry and mark it off from a traditional B civil litigation. Passengers' associations, police officers, local authorities and existing operators who may have nothing directly to do with the rivalry for a permit have a place in the scheme and may make representations on a variety of matters.

So also, in an appeal, the RTA itself may be beard.

Thus, the considerations going mto the judicial verdict are dominated by public interest; non-parties who have only to present points germane to public interest are allowed to reprec sent therr point of view.

Why?

Because the object of the regulatory statute is to promote smooth public transport and subject to the weighty faetors bearing thereon set down in s. 4 7 (I) of the Act and, indeed, with a view to serve the public the better, applicants are chosen in recognition of their fundamental right u.nder Art. 19 canalised by reasonable restrictions in public interest.

To imprison such an enquiry into the familiar mould of a civil proceeding in ordinary courts D is to be pathological, if one may say so. A freer, healthier, approach is the prescr; ption.

Of course, Shri Phadke is right in that any representation, ground or evidence presented by anyone prejudicing the right of an applicant has to be considered only subject to the canons of natural justice and in the discretion of quasi-judicial authority.

Justice to the public and the parties can and must be harmonised.

Such is the simplistic statement of the Jaw.

A few more facts and scme more law are necessary.

As stated earlier, the appellant got the permit from the RTA although both the contestants before us were equally qualified, having obtained equal marks on the basis of the Andhra Pradesh Motor Vehicles Rules (for short, the MV rules).

The appellate result went against the appellant because another applicant who had filed an appeal before the STAT produced, at that stage, a certificate from the concerned authority to prove that the present appellant had used a contract carriage jlS a stage-carriage on a trip to Tirupati and had compounded this offence by payment of a fee of Rs. 2,340/-.

This circumstance was regarded by the STAT as a blot on the history-sheet of the appellant, although inadvertently omitted from the history-sheet prepared officially for the consideration of the RT A. It is admitted on all hands that this semi-punishment had not been mentioned in the representations of any party under s. 57(3) of the MV Act.

Therefore, an objection was raised before the ST AT that this ground was new, although the episode which formed its basis existed prior to the disposal of the applications by the RTA. It was further urged that such new grotmds could not be heard from an objector who had not included it in his representation made within the time foi'•ed by s. 57(4) of the Act. However, the STAT over-ruled these objections and proceeded on the footing that this was material information

A relevant to s. 4 7 (I ) and nsed it, after giving a fair opportnnity to the • affected appellant to meet it. Consequentially, he upset the award of the permit to the appellant since this factor tilted the scales against the appellant.

We cannot, in this Court, and especially on a limited ~~ leave, look into the evaluation.

These foundational facts are common ground, but the divergence B arises on the exercise of the power under r.15 of the Appellate Rules.

Shri Phadke contended that a representationist, under s. 57(3) & J

( 4), had to abide by the time-limit discipline of the provision and could not transgress it by making an additional representation at the appellate stage beyond the time limited by s. 57 ( 4). If r. 15 permitted such a course, it violated the substantive provision of the Act. ' Since a stream cannot rise above its source and rules cannot go be- E c yond the sections of the Act, this Court must hold the said rule void. Any way, if s. 57(3) & (4) had a more spacious connotation than was attributed to it by Shri Phadke, r. 15 could have full play and be accommodated within the parent provision in the Act regulating procedure.

This was the counter-contention of Shri V. S. Desai for the contesting respondent. ~

D Before proceeding further, it is useful to extract s. 57(3) and ( 4) and test whether the rule-making power has exceeded the ambit of s. 57 or gone counter to it in framing r. 15 (earlier extracted) :

"57. Procedure in applying for and granting permits.- x x x x

(3) On receipt of an application for stage carriage per- E mit or a public carrier's permit, the Regional Trausport Authority shall make the application available for inspection at the office of the auhority and shall publish the application or the substance thereof in ,,._ the prescribed manner together with a notice of the ' . date before which representations in connectlon therewith may be submitted and the date, not being F less than thirty days from such publication, on which and the time and place at which, the application and any representations received, will be considemi : Provided that, if the grant of any permit in accordance with the application or with modifications

G would have the effect of increasing the number of vehicles operating in the region, or in any area or on any route within the region, under the class of permits to which the applications relate, beyond the limit fixed in that behalf under sub-section (3) of Section 47 or sub-section (2) of Section 55, as the I

case may be, the Regional Transport Authority may

H summarily refuse the application without following the procedure laid down in this sub-section.

(4) No representation in connection with an application referred to in sub-section (3) shall be considered

by the Regional Transport Authority unless it is made in writing before the appointed date and unless a copy thereof is furnished simultaneously to the applicant by the person making such representation." W c unhesitatingly agree with Shri Phadke that natural justice-that fine facet of judicial ethos-must broadly inform exercise of power by administrative tribunals.

This obligates such bodies to give an affected party. a fair opportunity to meet any evidence obnoxious to his case if it is to be pressed into service against him.

In the present instance, it is not disputed, as the High Co11rt has noted, that the canons of natural justice have been conformed to. The surviving issue therefore is as to whether there is any soundness in the submfasion that s. 57(3) & (4) read with s. 47 builds barricades against receiving any information by the STAT from any representator beyond the time fixed in the above sub-sections of s. 57. f Administrative law-a growing branch of Indian jurisprudence -has a mission.

Where the trellis work of technical procedures and rules of evidence usually applicable to ordinary courts under the Code contains too many taboos regarding pleadings and too many prescriptions regarding trials, admiootrative bodies, manned by lay and legal men, charged with duties which are wider than decision of individual disputes between specific parties and operating quasijudicially at the public-interest level, have to enjoy more liberal powers and less formal and more flexible processes if they are to fulfil the statutory behest efficaciously.

To over-judicialize is to undermine.

In the construction of statutes establishing administrative agencies and defining their powers, there is little scope for the deep-rooted shibboleth that into the statute must be, read, by lawyer's instinct, the J. requirements of the trial of a civil suit or the hearing of an appeal by

the ordinary courts of the land.

This may result in defeating their obvious purpose.

We will therefore briefly examine the legislative goal of the statute under construction, the general policy of the legfalature in enacting the relevant sections and the definition of the sources from which information or evidence may be sought by the tribunal working within the framework of the Act.

Mr.

Justice Frankfurter has aptly stated that 'the answers to the problem of an art are in its exercise' and John Chipman had said that the process of statutory construction is a practical art (See : Extrinsic Aid in the Construction of Statutes-by V. S. Deshpande-Journal of Indian Law Institute-Vol. Il, April-June 1969, p. 123, 126).

Thus, the true t.est of the amplitude and correct interpretation of s. 57(3) & 1 ( 4) is to be found in a study of its area and its exercise, as intended

\ by its makers.

The oft-quoted saying of Mr. Justice Holmes that 'the meaning of a sentence it to be felt rather than to be proved' also helps us to feel our way through the public law area sketched by s. 57(3) & (4) understood in the background of s. 47 and the conspectus of other provisions.

We have to shake off from onr minds that the type of litigation contemplated by s. 57 is the thrust and parry in a civil suit or appeal.

With these observations we may take a bird's eye view of the relevant provisions of the Act to give us a hang of the subject and help us interpret adequately . . 16-725 SCI 7r,

Section 42 of the Act insists on a permit being taken by every transport operator. Section 44 lays down how the RTA is to be constituted.

It has a mixed composition of lay and judicially-trained men, the reason being that the process of adjudication is not )-J purely legal pug1lis but a broader search taking note of public con- siderations which may not be brought to its notice by contenders for permits.

The nature of the enquiry is reflected in the very structure of the body. Section 46 speaks of applications for stage-carriage permits. When we reach s. 47, we have to take a close-upof :.hat provision.

Properly understood, s. 47 enjoins upon the RTA to have regard to the presiding idea of public interest generally and in its ramifications as set out ins. 47(1) (a) to (f). In addition, the RTA shall also receive representations as mentioned therein and take them into the reckoning. It is not as if the sole source of decisionmaking materials consists of the representations made under s. 5 7 ( 3) within the time stipulated ii). s. 57(4). The primary channel, it looks, is the information that the R TA may gather, bearing on matters touched upon ins. 47(1) (a) to (f), supplemented by facts~ stated in representations referred to in s. 57 (3).

Once we grasp this essential truth, the resolution of the conflict raised in this case is easy.

The focus is not on who, as between A and B, has the title to the permit, but on who, as between A and B, should be preferred to better serve the public interest.

We may, as a result of the above discussion, set down the following five propositions :

1. Stage-carriage permits are granted for providing an efficient public transport system.

2. The adjudicatory content has dual elements-public interest in the best stage-carriage service and private title to better serve the public.

3. The procedure is flexible, free from the rigidity of court trials, and this flexibility flows from the duty of the tribunal, charged with the task of picking out him who has the best plus points for plying a good bus service, to discharge it properly.

A people-conscious power cannot be pared down in a self-defeating manner.

4. An activist tribunal (RTA, and, in exceptional cases, even the STAT) may even collect useful information bearing on considerations set out in s. 47 and, after public exposure of such information at the hearing and reasonable opportunity to meet it, if anyone is adversely affected, put it into the crucible of judgment.

5. The antithesis is not between the right of representation within the time limited by s. 57 ( 4) and beyond it but between representations by statutorily authorised entities under ss. 4 7 and 57 and receipt of relevant

evidence or information from any source whatsoever at any stage whatsoever but subject to the wholesome. rules of natural justice.

rhcsc fivefold guidelines squarely accommodate r. 15 within the framework of ss. 47, 57 and 54 of the Act and there is no spill-over breaching the banks of the provisions.

The rule merely gives e!Iccl B to what the sections intend and is not therefore ultra vires.

Here the certificate of payment of compounding fees was ftlcu by one of the appellants before the STAT and was received not as a representation unuer s. 57 ( 4) but as some information . the STAI regarded had a bearing on matters falling under s. 47. It is important to note that r. 15 docs not entitle parties to the appeal or application to produce additional evidence but clothes the tribunal with discretionary power to allow such evidence.

What is received is not qua representation under s. 57 ( 4) but. qua evidence with public interc

est flavour.

The rule is good and covers familiar ground to enable just orders being passed. A reference to order XLI, rule 27 C.P.C. and s. 540 Cr!. P.C. proves this point. Justice to the public is the keynote of ss. 47, 57 and r. 15. We are not lobbying for unconventional procedures of quasi-judicial tribunals but interpreting the relevant provisions according to well-established canons.

We must listen to the signature tune of quasi-judicial justice to appreciate the uote.

We may also highlight the basic principle that subject to statutory regulations, each tribunal has its inherent power to device its own procedure.

Novelty, if it improves purposeful ell1ciency, is not anathema.

But caution must be exercised in going against timetried procedures lest processual law prove a charter for chaos. Likewise, it is necessary to mention that while a 'representator' under s. 47, read with s. 57, has a right to make representations and be heard, subject to the limitations written into those provisions, those who fall under it or outside it have no right to bring in evidence or urge grounds as and when they please or at all unless the tribunal, in its discretion, chooses to accept such extra information.

The first is a right of the 'representator' the second is the power of the tribunal.

We are strengthened in our general approach and particular construction by a ruling of this Court in New Prakash Transport(') and two rulings of the High Courts, one of a Full Bench of the Madras High Court (AIR 1965 Madras 79) and the other a Division Bench of the Patna High Court to which one of us (Untwalia, J.) was a party (AIR 1964 Patna 154).

In United Motor Works('), the Patna Case, the Court observed :

"It was also pointed out by the Supreme Court in that case that the Motor Vehicles Act and the rules framed thereunder do not contemplate anything like a regular hearing in a Court of Justice and no elaborate procedure has been prescribed as to how the parties interested have to be heard either before the Regional Transport Authority or

(I) [1957] S.C.R. 987. !2) AJ.R. 1964 Pat 154.

before the Appellate Transport Authority.

The principle is well established that in the absence of any such prescribed procedure the appellate authority may adopt any procedure which it thinks best for hearing the appeal provided always that the rules of natural justice are observed.

The matter has been clearly put by Lord Loreburn in the course of his speech in Board of Education v. Rice (1911 AC 179) as follows :

"Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining questions of vari_ous kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law.

It will, I suppose, usually be of an administrative kind; but sometin1es it will involve a matter of law as well as a matter oi fact, or even depend upon matter of law alone.

In such cases the Board of Education will have to ascertain the law and also to .ascertain the facts.

I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything.

But I do not think they are bound to treat such a question as though it were a trial.

They have no power to administer an oath, and need not examine witnesses.

They can obtain information in any way they think best, always giving a fair opportunity to those who arc parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view."

Ramaswami C. J., (as he then was) also laid down :

"It is . . . manifest that the power of the appellate authority is co-extensive with the power of the Regional Transport Authority in this respect, and there is no reason why the appellate authority should not take these matters in"to consideration in deciding the appeal under s. 64 of the Act." It is trite that an appeal is a re-hearing and ordinarily appellate power is as wide as original power.

The facts of jhe Patna cnse

(supra) bear a close paraJlel to our case.

Another point with which we are not concerned and also decided in the Patna judgment (one of the two writ petitions heard together) was challenged in the Supreme Court and reversed.

That bears upon the inter-state routes which does not arise in the instant appeal before us.

In Cumbwn Roadways(') Kailsam J. (as he then was), speaking for tlle Full Bench, stressed the same view.

The headnote in the Report is sufficiently explicit and we quote :

"The representator, who makes the representation otherwise than under s. 57(4) will not have a right to have his

(I) A.T.R. 1965 Mad. 79.

objection heard and considered, but there is no prohibition against the authority taking the information furnished by the objector and acting on it after giving an opportunity to the affected party, to prove that the information is false or that it should not be acted upon.

The jurisdiction of the Regional Transport Authority or the Appellate Tribunal to act upon any information, whether it was brought to its notice by the objector or by the Transport Authority cannot be questioned.

But it is within the discretion of the Regional Transport Authority or the Appellate Tribunal to accept the information taking into account the relevant circumstances under which the information was brought before it. If the authority decides to accept, it is bound to give a reasonable opportunity to the affected person to show cause as to why the information should not be acted upon.

When the authority is acting on the information, but not as a representation by the objector, the person affected cannot object to the authority considering the information on the ground that it was brought to its notice by one of the objectors without including the information in the representation made by the objector.

The right of the representator as such is no doubt limited, for, he has no right to insist that any representation made otherwise than under s. 57 ( 4) should be considered in the manner prescribed under s. 57(5). But that does nut in any way debar the authority under s. 47(1) of the Act from taking the information into account for deciding to whom the permit should be given in the interests of the public."

The decision of the Assam High Court (AIR 1959 Assam 183) brought to our notice by Shri Phadke docs not really consider the issue from the position we have delineated and turns on approach which is not quite correct.

Our conclusion therefore is that r. 15 is intra vires and, further

that the said rule merely makes patent what is otherwise latent in F the statutory provisions.

The appeal accordingly, fails and is dismissed with costs.

P.B.R.

Appeal dismissed.

RAO

DESARI PANAKALA RAO & OIBERS

April 5, 1976

Y. V. CHANDRACHUD

N. L. UNTWALIA, JJ

Motor Vehicles Act

Ss. 47 and 57

s. 57(3)

s. 57(4)

s. 57(4)

United Motor Works

s. 47

Motor Vehicles Act

Section 47

RTA

s. 57(3)

s. 57(4)

s. 47

M. N. Phadke

B. Kantarao

V. S. Desai

K. R. Chaudhury

S. L. Setia

V. Khamw

KrusHNA !

Art. 136

s. 47

Motor Vehicles Act, 1948

Krishna District

Andhra Pradesh

s. 60(3)

ss. 57(4) and 64

Motor Vehicles Act

Phadke

s. 47

s. 4

Art. 19

Tirupati

s. 57(3)

s. 57(4)

s. 4

s. 57(3)

s. 57

s. 57(3)

V. S. Desai

s. 57(3)

s. 57

Section 47

Section 55

s. 57(3)

s. 47

s. 57

Frankfurter

John Chipman

V. S. Deshpande

s. 57(3) & 1

Holmes

s. 57(3)

s. 47

s. 57

Section 42

Section 44

RTA

Section 46

s. 47

s. 47

s. 5

s. 57(4)

s. 57

s. 47

s. 57

ss. 4

ss. 47, 57 and 54

s. 57

s. 47

s. 57

C.P.C

s. 540

ss. 47, 57

s. 47

s. 57

New Prakash Transport

Madras High Court (AIR 1965 Madras 79)

Patna High Court

Untwalia

United Motor Works

Supreme Court

Motor Vehicles Act

Loreburn

Ramaswami

s. 64

Patna

Kailsam

s. 57(4)

s. 57

s. 57(5)

s. 47(1)

Assam High Court (AIR 1959 Assam 183)


KAYS CONCERN

UNION OF INDIA & ORS.

April 6, 1976

[P. N. BuAGWATI, A. C. GuPTA AND s. MURTAzA FAZAL Au, JJ.]

Mi1.1eraJ Concession Rufes, 1960, Rule 54-Dispo::>al of revision application -Ohhgat1011 ol Central Govern111e11t to (, Ollsidcr tlie entire material before ii.

On the expiry of his sublease for extracting phosphale form an area of 400 hectares situate in Singbhum district, Bihar, the appellant applied to the

State Government for a grant of fresh lease. For nine months the State Government failed to dispose of his _application, and under R. 24(3) of the- Mineral Concession Ilules, 1960, it was deemed to have been refused. Under _ Rut~ 54 of the ~1fineral Concession Rules, 1960, the appellant applied for revision and the Centtal Government directed the State Government to consider his application on merits. The State Government rejected the applkation on .. the ground that it had decided not to grant lease for pho..."<phate to individuals or private parties, but to work this mineral in the public sector. The app'eJlant again applied for revision during the pendency of which an advertisement of the State Government appeared in the 'Statesman' indicating the abandonment of its proposal to mine phosphate and apatite in the public sector.

The appellant brought the advertisement to the notice of the Central Govern* 1nent, but it rejected his revision application. completely disregarding the advertisement.

The appellant preferred an appeal to this Court hy "pecial leave.

Al!owinf the appeal and remanding the case to the Central Government, the Court,

HELD : The Central Government failed to take into consideration this advertisement which appeared to indicate a change in the stand of the State Oovern1ncnl, and made its order in complete disregard of it.

Thts was clear nonMapplication of n1ind on the part of the Central Government to a very material circun1stance which was brought to its notice before its disposal of the revision application.

The order of the Central Government, therefore, sufM fers from a patent error. [l 0440-H, 1045A] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1633 of 1968.

Appeal by special leave from the judgment and order dated the 2nd December, 1967 of the Government of India, Ministry of Steel, Mines and Metals (Department of Mines and Metals) at New Delhi in No. M.V. 1 (141) /67.

S. K. Mehta and K. R. Nagaraja, for the appellant.

S. P. Nayar and Girish Chandra, f.r respondent No. l.

U. P. Singh and Shambhu Nath !ha, for respondent No. 2.

The Judgment of the Court was delivered by

BHAGWATI, !- This appeal can be disposed of on a very nap:, ow point and we will, therefore, se! ont. only so mch of he facts givmg rise to the appeal as bear on this, pomt and omit what 1s unnecessary.

Since 23rd December, 1959 the appellants had a sub-lease from the Receiver in Suit No. 203 of 1905 for extracting phosphate from

an area of 400 hectares situate in Singhbhum District in the State of Bihar.

This sub-lease, according to the State of Bihar, came to an end from 1st September, 1964 and the appellants, therefore, made an application to the State of Bihar on 22nd/24th March, 1965 for a grant of fresh mining lease for extraction of apatite and pl10sphate from the same area under Rule 22 of the Mineral Concession Rules, 1960 made by the Central Government under s. 13 of the Mines & Minerals (Regulation & Development) Act, 1957. The State Government failed to dispose of the application within a period of nine months from the date of its receipt and hence under Rule 24(3) of the Mineral Concession Rules, 1960 the application was deemed to have been refused by the State Government. The appellants preferred a revision application to the Central Government on 16th February, 1966 against the deemed refusal of their application under Rule 54 of the Mineral Concession Rules, 1960. The Central Government disposed of the revision application by an order dated 31st December. 1966 directing the State Government to consider the application of the appellants and to decide it on merits.

The State Government thereafter by an order dated 9th February, 1967 rejected the application of the appellants on the ground that the State Government had already taken a decision not to grant lease for phosphate ore to any individual or private party as it had decided "to work this mineral in the public sector".

The appellants again filed a revision application to the Central Government against the order of the State Government rejecting their application.

The .Central Government invited comments of the State Government on the revision application and on the comments submitted by the State Government, the appellants were given an opportunity to submit their cross-comments which they did on 8th August, 1967. Whilst the revision application was pending, the appellants read an advertisement in the issue of Statesman dated 13th

Septe1uber, 1967 to the following effect :

"Government of Bihar

Department of Mines & Geology, Patna.

Mining and beneficiation of low grade apatite of

Singhbhum.

A reserve of a littl.e over 1 million tonnes of low grade Apatite Mineral with average 16% P.O. has been proved in a belt consisting of several mouzas in the Singhbhum District of Bihar.

The representative bulk samples of the minerals have laboratory Jamshedpur, and it has been found that the mineral can be suitably upgraded by benefication, to yield Apatite concentrate with 36% to 40% P.O.,

suitable for use as raw material for the manufacture of Phosphetic fertiliser. Report of economic feasibility studies available.

The State Government may consider giving tax holidays for a fixed period and also may guarantee the safety of the investtnent invested parties capable of making investment to the tune of 40 to 50 lakhs in undertaking to above project may obtain further particulars from the

SUPREME COURT REPORTS

[1976] 3 S.C.R.

A Mines Commissioner, Department of Mines and Geology, Government of Bihar. Patna.

Sd/-

K. ABRAHAM, Commissioner of Mines & Geology."

The appellant immediately addressed a communication dated 26th September, 1967 to the Central Government enclosing a copy of the advertisement and pointing out that it was clear from the advertisement that the State Government had abandoned the idea of working apatite and phosphate in the public sector and that the ground for rejecting the application of the appellants for mining lease no longer existed.

The Central Govermnent, however, by an order dated 2nd December, 1967 rejected the revision application stating that :

". . . . the Central Government have come to conclusion that as the State Govermnent are anxious to do phosphate mining for their own fertilizer factory in public sector, there is no valid ground for interfering with the decision of the State Government rejecting your application for grant of mining lease for apatite and phosphate in Singhbhum district. H

The appellants thereupon preferred the present appeal against the order of the Central Govermnent with special leave obtained from this Court.

It is apparent from the order of the Central Government dated 2nd December, 1967 that the Central Government rejected the revision application of the appellants on the ground that the State Government was anxious to do phosphate mining for its own fertiliur factory in the public sector.

This was undoubtedly the original ground put forward by the State Govermnent for rejecting the application of the appellants for mining lease.

But it does appear prima facie from the advertisement in the issue of the Statesman dated 13th

September, 1967 that the proposal of the State Govermnent to mine apatite and phosphate for its own fertilizer factory in the public sector was abandoned and the State Government was prepared to give mining lease to a party which was prepared to undertake a project of setting up a plant for beneficiation of this mineral so as to make it suitable for use as raw material for the manufacture of phosphatic fertilizer.

The appellants brought this advertisement to the notice of the Central Government by their representation dated 26th September, 1967 and this was done before the revision application was disposed of by the Central Government.

Even so, the Central Government failed to take into consideration this advertisement which appeared to indicate a change in the stand of the State Government and made its order dated 2nd December, 1967 in complete disregard of it.

The order of the Central Government dated 2nd December, 1967 clearly shows that the Central Government failed to apply its mind to this advertisement though it was brought to its notice in time and proceeded to dispose of the revision application as if no such advertisement had been issued by the State Government.

The Central Government did not even care to invite the comments of the State

Government in regard to the advertisement and ignored it altogether in making its order rejecting the revision application. This was clear non-application of mind on the part of the Central Government to a very material circumstance which was brought to its notice before it disposed of the revision application.

The order of the Central Government, therefore, suffers from a patent error and it must be quashed and set aside and the matter must go back to the Central Government for fresh determination.

We accordingly set aside the order dated 2nd December, 1967 passed by the Central Government and remand the case to the Central Government with a direction to dispose of the revision application, after taking into account the entire material before it, including the advertisement given by the State Government in the issue of Statesman dated 13th September, 1967 and giving an opportunity to the State Government to offer its co=ents in regard to this advertisement and a further opportunity to the appellants to make their

submisions on the comments, if any, offered by the State Government. The State of Bihar will pay the costs of the appeal to the appellants.

M.R.

Appeal allowed.

KAYS CONCERN

UNION OF INDIA & ORS

April 6, 1976

A. C. GuPTA

Concession Rules, 1960

Central Government

New Delhi

S. K. Mehta

K. R. Nagaraja

S. P. Nayar

Girish Chandra

U. P. Singh

Shambhu Nath !

BHAGWATI

State of Bihar

1st September, 1964

22nd/24th March, 1965

Mineral Concession Rules, 1960

s. 13

Mineral Concession Rules, 1960

Mineral Concession Rules, 1960

31st December. 1966

9th February, 1967

.Central Government

13th

Septe1uber, 1967

Government of Bihar

Singhbhum District

Bihar

K. ABRAHAM

26th September, 1967

Central Govermnent

2nd December, 1967

Singhbhum district

13th

September, 1967

13th September, 1967


I 046

PRINCIPAL, GUNTUR MEDICAL COLLEGE, GUNTUR

v .

. Y. MOHAN RAO

April 6, 1976

(A. N. RAY, C.J., P. N. BHAGWATI, A. C. GUPTA, S. MURTAZA FAZAL

ALI AND JASWANT SINGH, JJ.)

Constitution 'of India-Articles 15(4), 29(2), 341~ 366(24)-Constilutlon . (Scheduled Castes} Order 1950-Scheduled Caste-A Hindu belonging to a Scheduled Caste-Whether cea.ies to belong to Scheduled Caste on conversion to Chrfa'tianity-Dn reconversion whether he regains mentbership of Scheduled Caste-Whether a verson must belong to Scheduled Caste by bir1h.

The parents of the respondent original_ly professed Hindu religion and belongcl to fildiga caste which is a scheduled caste, in the Andhra Pradesh as spe~Hied in the schedule to the Constitution (Scheduled Castes) Order, 1950.

Resrondent's parents were converted' to Christianity and thereafter the respondent was born. The respondent got himself _converted to Hinduism renouncing . Christianity. Thereafter, he applied for admission to Guntur ~Iedical College on the basis that he was a member of a Scheduled Caste. 1-!e was provi~ siona11y selected for admission but subsequently was informed by the PrincipaI of the College that his selection was cancelled as he was not a Hindu by birth. Tue Principal relied on Note (b) to Clause C of rule 2 of the Rules issuett by the Government of Andhra Pradesh for admission to the M.B.B.S.

, ourse iil Government Medical College. The said note provides that no candidate other than Hindu can claim to belong to Scheduled Caste. It further

pro\-ides that no candidate can belong to Scheduled ste except by birth.

The respondent filed a Writ Petition in the High Court challenging the validity of Note (b} as going beyond the scope of the Constitution (Scheduled Castes) Order, 1950. The respondent succeeded before the teamed Single Judge as well as the Division Bench of the- High Court. In fact, it was conceded by the appellant before the High Court that note (b) \VJs repugnant to the sald Order. ,

Dismissing the cippeal by Special Leave,

HELD: 1. It is clear on a plain rcadlni of clause 4 of Article 15 that the State has power to make special provision for scheduled castes and in exercise of its power the State can reserve seats in a Medical College for members of Scheduled Castes without violating Article IS or Article 29(2). Articlo 366(24) defines Scheduled Castes to mean such castes. races or tribes as are deemed under Article 34 l to be scheduled castes. The President in exercise of the powers conferred upon him under Article 341 bas issued Constitution (Scheduled Castes) Order 1950. Madiga caste is included in the schedule to. the said order. The said order itself, however. provides that no person whe> professes a religion other than Hindu or Sikh shall be deemed t<> be a mem her of a scheduled caste.

It~ however~ does not require that he should have been born a Hindu or a Sikh. The only thing required is that at the material time he should profess Hindu or Sikh religion. The requirement of the note that a candidate in prd.er to be eligible for a reserved seat should be a member of a Scheduled Caste by birth went beyond the said order and wa~ rightly condemned as void. [1049B-H. !050AI

2. There is no absolute rule applicable in all cases that whenever a member of a caste is converted from Hinduism to Christianity he loses his membership of the caste.

It would depend upan the structure' of the caste and its rules and regulations .. There are some castes,

GUN TUR MEDICAL COLLEGE \'. Y. MOHAN RAO (Bhagwati, J.) I 04 7

particularly in South India, where this consequence does not follow on A con\'ersion since such castes comprise both Hindus and Christians.

Whether Madiga caste falls in this category is a debatable question. For the purposes of the present appeal it is not necessary to decide the contention of the respondent that there are both Hindus and Christians in Madiga caste and l.!VCn after conversion to Christianity his parents continued to belong to Madiga "'"te. [!050-C.F]

3. A similar question about the effect of re-conversion was decided by B !his Court in the case of C. R. Arun1ugarn vs. S. /?aiaRof)af.

In that case this Court laid down that there is no reason to hold that a person on reconversion to Hinduism cannot once again become a member of the caste in which he was born and to which he belonged before conversion to nnother religion.

The reasoning on which this decision proceeded is equally applicable in a case where the parents of a person nre contertcd from rHnduism..-to Chri:ltianity and he is born after their conversion and on his subsequent en1braching Hinduism, the n1e111bers of the caste to which the parents belong prior to their rnnvcr, ion accept him as a member within the fold. It is for the members C of the caste to decide whether or not to ndmit a person within the caste.

Since the cast(; is a ocial con1bination of persons governed by its rules and regulations, it n1<1y, if its rutes nnd regulation-; so provide, admit a new inemhcr just as it n1ay expel an existing men1ber.

The only rcquircn1nt for admission of ;1 ptrson as a member of the caste i') the acceptance of the rcrson by lhe other members of the caste.

On conversion to Hinduism a person would not becon1e a member of the caste to which his parents belonged

prior to their conversion, automatically or as a matter of course but he would D become such 1nernber if the other members of the caste accept him as a member and admit him within the fold.

(10500. !051B-E]

There i-; nothino on record to show \vhether the respondent \Vas <icceptcd hy indiga cnste. "'However, it is not necessary to undertake this enquiry becaus.: it ha:; been agreed by the appellants that whatever be the n:sult of the appeal. the ndmission of the respondent would not be disturbed. [1051-FGl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 984 of 1975.

I'.

Appeal by Special Leave from the judgment and Order dated the I 0th February 1975 of the Andhra Pradesh High Court in W.A. No. 752 of 1974.

P. Ra111acha11dra Reddy, Advocate Ge11eral, A.P .. P. P. Rao and V Seetharaman, for the appellant.

R. C. Raghavan, G. Vedanta Rao and B. Ka11ta Rao, !or the rcspundenl.

The Judgment of the Court was delivered by

BHAGWATI, J.

The short question that arises for determination

.111 this appeal is: whether a person whose parents belonged to a Scheduled Caste before their conversion to Christianity can, on conversion or reconversion to Hinduism, be regarded as a member of the Scheduled Caste so as to be eligible for the benefit of reservation of seats for Scheduled Castes in the matter of a admission to a mediC'31 college.

The parents of the respondent originally professed Hindu religion and belonged to Mactiga caste which is admittedly a caste deemed to be a Schedtt!cd Caste in the State of Andhra Pradesh as specified in Part I of the Schedule to the Constitution (Scheduled Castes) Order,

1950. They were both converted to Chri5tianity at some point of time

I 048

SUPREME COURT )'.EPORTS

[ 1976] 3 S.C.R.

which does not appear clearly from the record, but it was the case of the respondent in his Writ Petition that he was born after their conversion. This was also the assumption on which the arguments proceeded before the High Court and before us, too.

The counsel :lbr the respondent expressed his readiness to argue the case on the same assumption, namely, that the respondent was born after the conversion of his parents', or, in other words, he was born of Christian parents. It appears that in the State of Andhra Pradesh, for the purpose inter alia of admission to medical college, converts to Christianity arc treated as belonging to backward class and, therefore, when the respondent applied for admission to Gandhi Medical College in 1973, he described

himself as a member of a backward class. But he did not succeed in getting admission. Thereupon he got himself converted to Hinduism on 20th September, 1973 from Andhra Pradesh Arunchatiya Sangham stating that he had renounced Christianity and embraced Hinduism after going through Suddhi ceremqny and he was thereafter "received

back into Mediga caste of Hindu fold".

On the strength of this certificate, claiming to be a member of Madiga caste, the respondent applied for admission to Guntur Medical College and on the basis that he was a member of a Scheduled Caste, he was proY.isionally selected liar admission. But subsequently he was informed by the Principal of the Medical College that his selection was cancelled os he was not a Hindu by birth. The Principal apparently relied on Note (b) to clause (C) of rule 2 of the Rules issued by the Government of Andhra'Pradesh under GO Rt. No. 1315 dated 4th December, 1973 for admission to the M.B.B.S. Course in Government Medical Colleges for the Academic year 1973-74. This Note was in the following terms:

"No candidate other than Hindu including a Sikh can claim to belong to Schedule Castes. No candidates can claim to belong to the Scheduled Caste except by b:irth."

The respondent thereupon preferred a writ petition in the High Court of Andhra Pradesh challenging the validity of cancellation of his admission on the ground that Note (b ), which required that a candidate, in order to be eligible flor a seat reserved for Scheduled Caste, should belong to a Scheduled Caste by birth, went beyond the scope of the Constitution (Scheduled Castes) Order, 1950 and was, therefore, void and the Principal was not entitled to cancel his admission on the ground that he was not a Hindu or a member of a Scheduled Caste by birtb.

This ground of challenge was accepted by a Single Judge of the High Court and on appeal, a Divis!ion Bench of the High Court also took the same view.

In fact, it was conceded before the Division Bench by the learned Government Pleader appearing on behalf of the State that Note (b) was repugnant to the provisions o1l cl. (3) of the Comtitution (Scheduled Castes) Order, 1950, since the only requirement of that clause was that in order to be a member of a Scheduled Caste, a person should be professing Hindu or Sikh religion and it did not prescribe that he should be a Hindu by birth. The State did not succeed in obtaining leave to appeal from the High Court and hence it preferred a special leave petition to this Court.

When the 'pecial leave petition came up for hearing, there was no decis!ion of

<; UNTUR MEDICAL COLLEGE v. Y. MOHAN RAO (Bhagwati, !.) 1049

this Court dealing with the question as to whether a convert or re- A convert to Hinduism can become a member of a Scheduled Caste and :if so, in what circumstances and hence we granted special leave to the State, on the State agreeing that whatever be the result of the appeal, the admission of the respondent will not be disturbed and that the State will, in any event, pay the costs of the respondent.

It may be pointed out that since then a decision on this question has been rendered by a Bench of three judges of th:is Court to which B we shall refer later.

It is clear on a plain reading of clause (4) of Art. 15 that the State has power to make special provision ior Scheduled Castes and in exercise of this power, the State can reserve scats in a medical college for members of Scheduled Castes without violating Art. 15 or cl. (2) of Art. 29.

The expression 'Scheduled Castes' has a technical meaning given to it by cl. (24) of Art. 366 and it mcam "'such castes. races or tribes or parts of or groups within such castes. + races or tribes as arc deemed under article 341 to be Scheduled Castes for the purposes of this Constitution." The PresiJent in exercise of the power conferred up(ln him under Art. 341 has issued the Constitution (Scheduled Castes) Order, ! 950.

Paragraphs ( 2) and (3) of this Order arc material and they read as follows:

"2. Subject to the provisions of this Order, the castes, races or tribes or parts of or groups within caste or trlibes 'opeeified in Part I to XIII ofi the Schedule to this Order shall. in relation to the States to which these parts respecttively relate, be deemed to be scheduled castes so far as regards members thereof resident in the localities specified in relation to them in those Parts of that Schedule.

3. Not\vithstanding anything contained in P<iragraph 2, no

person who profesoos a religion different from the Hindu or the Sikh religion sha1! be deemed to be a member of a Scheduled Caste." F

The Schedule to this Order in Part I sets out the castes, races or tribes or parts of or groups within castes or tribes which shall in the different areas of the State of Andhra Pradesh be deemed to be Scheduled Castes.

One of the castes specified there is Madiga caste and that caste must, therefore, be deemed to be a Scheduled' Caste. But by reason of cl. (3), a person belonging to Madiga caste would not be .. dmed to ?c a ne~1ber of a Scheduled Caste unless l).e professes \ Hindu or Sikh religion at the relevant time. It is not necessary that ' he should have been born a Hindu or a Sikh.

The only thing required is that he should at the material time be professing Hihdu or Sikh religion.

Now, Note (b) was interpreted by the Principal of tI1e Medical College to require that a candidate, in order to be eligible for a seat reserved for Scheduled Castes, should be a Hindu by birth.

Tlis interprcJation was plainly erroneous because what Note (b) reqmred was not that a cansidatc should be a Hindu by birth but that

I 05 0

SUPREME COURT REPORTS [19761 3 s.c.R.

A he should belong to a Schednled Oaste by birth. . But even this requirement that a candidate v,1 order to be eligible for a reserved seat shon!d be a member of a Schednled Caste by birth went beyond the provision in cl. ( 3) of the Constitution (Scheduled Castes) Order. y 1950 and was rightly condemned as void and no reliance was placed upon it on behalf of the Srate.

B The principal argument adval,1ced on behalf of the State was that when the respondent was converted to Hinduism, he did not automatically become a member of the Madiga caste, but it was open to the members of the Madiga caste to accept him within their fold and it was only if he was so accepted, that he could claim to have become a member of the Madiga caste. There was no evidence in the present case, contended the State, showing that the respondent, on his conver- C sion to Hinduism, was accepted as a member of the Madiga caste by the other members of that caste and, tilerefore, he was not at the time of his application for admission a member of a Schednled Caste.

Now, before we proceed to consider this contention, it is neces- .+ sary to point out that there is no absolute rule applicable in all cases that whenever a member of a caste is converted from Hi,1duism to Christianity, he loses his membership of the caste. This question has been considered by this Court in C. M. Arumugam v. S. Rajgopal(') and it has been pointed out there that ordinarily it is true that on conversion to Christianity, a person would cease to be a member of the caste to which he belongs, but that is not an invariable rule. It would depend on the structure of the caste and its rules and regulations.

There are some castes, particularly in South India, where this consequence does not follow on conversion, since such castes comprise both Hindus and ChristiffiQs.

Whether Mediga is a caste which fulls within this category is a debatable question. The contention of ' the respondent in bis writ petition was that there are both Hindus and Christians in Madiga caste and even after conversioa to Christianity, his parents continued to belong to Madiga caste and he was, therefore, a member of Madiga caste right from the time of his birth. It is not necessary for the purpose of the present appeal to decide this question.

We may assume that, on conversion to Christianity, the pare1,1ts of the respondent lost their membership of Madiga caste and that the res]JO!ldent was, therefore. not a Madiga by birth.

The question is ': conld the respondent become a member of Madiga caste on conversion to Hinduism ? That is a question on which considerable light is thrown hv the decisicm of this Court in C. M. Arumugam

v. S. Rajgopal (supra).

The main question which arose for decision in C. M. Arumugam /

v. S. Rafgopal l•unra) was whether S. Raigopa!, who belonged to Adi Dravida caste before his conversion to Christianitv. could. on reconversion to Hinduism, Clace again become a member of the Adi Dravida caste.

This Court. after examining the auestion on Principle and referring to the decided cases, pointed out that the consistent view taken in this rountry since 1886 was that on reconversion to

(l) [1976] 1 s.c.c. 863.

GUNTUR ME[)JCAL COLLEGE v. Y. MOHAN RAO (Bhagwati, J:) I 051

Hinduism, a person can once again become a member of the caste in.

A which he was born and to which he belonged before conversion to another religion, if the memb, ers of the caste accept him as a member.

This Court observed that there was 110 reason, either o~ piinciple or on authority, which should compel it to disregard this view which has prevailed for almost a century and lay down a different rule on the subject and concluded that on reconversion to Hinduism, S. Rajgopal could once again revert to his Adi Dravida caste, for he was accepted B by the other members of the caste.

The reasoning on which this decision proceeded is equally applicable i,1 a case where the parents of a person ure converted from Hinduism to Christianity and he is born after their conversion and on his subsequently embracing Hinduislli, the members of the caste to which the parents belonged prior to their conversion accept him as a

C \ member within the fold. It is for the members of the caste to decide whether or not to admit a perso>,1 within the caste. Since the caste is a social combination of persons governed 11Y its rules and regulations, it may, if 'its rules and regulations so provide, admit a new member just as it may expel an existing member. The only requirement for admission of a person as a member of the caste is the acceptance of the person by the other members of the caste, for, as pomted D out by Krishnaswami Ayya1agar, J., in Durgaprasada Rao v. Sudarsanaswami('), "in matters affecting the well being or composition of a caste, the caste itself is the supreme iudge". (emphasis supplied).

It will, therefore, be seen that on conversion to Hinduism, a person born of Christian colaverts would not become a member of the caste to which his parents belonged prior to their conversion to Christianity, automatically or as a matter of course, but he would become such f\ E member, if the other members of the caste accept him as a member , I and admit hinl within the fold. ·

This view would have ordinarily required us to find whether, on the material on record, it could be said to have been established by the respondent that, on conversion to Hinduism, he was accepted as a member of Madiga caste by the other members of that caste, for F it is only if he was so accepted that he could clainl to be a member of a Scheduled Caste.

But it is not necessary for us to undertake this inquiry because. as already pointed out, it has been agreed by the State that, whatever be the result of this appeal, the admission of the respondent will not be disturbed.

We accordingly dismiss the appeal with costs in favour of the respondelat.

P.H.P.

Appeal dismisred.

(l) A.J.R. 1940 Mad. 513.

Y. MOHAN RAO

A. N. RAY, C.J.

P. N. BHAGWATI

A. C. GUPTA

ALI

JASWANT SINGH, JJ.

Articles 15(4), 29(2), 341

Guntur ~Iedical College

Government of Andhra Pradesh

clause 4

Article 15

Article 29(2)

Article 34

Article 341

MOHAN RAO

Bhagwati

South India

P. Ra111acha11dra Reddy

A.P .. P. P. Rao

V Seetharaman

R. C. Raghavan

G. Vedanta Rao

B. Ka11ta Rao

BHAGWATI

Andhra Pradesh

Gandhi Medical College

20th September, 1973

Guntur Medical College

Government of Andhra'Pradesh under

4th December, 1973

Schedule C

High Court of Andhra Pradesh

Art. 15

Art. 15

Art. 29

Art. 366

article 341

Art. 341

Mediga

S. Raigopa

S. Rajgopal

Krishnaswami Ayya1agar


CHATURDAS BHAGWANDAS PATEL v.

THE STATE OF GUJARAT

April 6, 1976

(R. S. SARKARIA AND P. N. SHINGHAL, JJ.J

Indian Penal Code (Act 45 of 1860), s. 161-Scope of.

Prevention of Corruption Act (2 of 1947), ss. 4(1) a11d 5(1) and (2)- Statutory presiunption under-Rebuttal by accused.

Code of (,'rin1inal Procedure (Act 5 of 1898) s. 537-Cflarge under ss. 161 and 34 l.P.C.-Co.accused acquittcd-('011victio11 und!'r s. 161 simplr'clter-

Validity. '

'fhe appellant (a Head Constable) an<l the Sub-Inspector of Police were charged with offences under s. 161 read with s. 34 and s. 165A, IPC, and !'ndcr s. 5 (2) read with s. 5 (I )(d) Prevention of Corruption Act, 1947.

The appellant admitted the receipt of money and its recovery froo1 him but stated that PWs 1 and 4 came to the Police Station, that PW 4 claimed to be a relative of the Sub-Inspector and that it was P\V 4 and not PW 1 who gave him the money to be handed over to the Sub-Inspector ,.,.-ho vt'as absent. The prosecution adduced evidence to show that the two accused arranged for the production of PW 1 at the Police Statin in connection with the investigation of a charge of abduction of a woman; that the Sub-Inspector directed the appellant to take charge of PW I when he arrived; that the appellant demanded a bribe from PW 1 to save himself from the charge as \vell as the indignity of being handcuffed, locked up and paraded; that a trap was set the next day when PW 1 paid the amount in the presence of PW 4 and that the amount 'vas recovered fi:om the appellant in a raid. The trial court acquitted both the accused, but on appeal, the High Court acquitted the Sub-Inspector but convicted the appellant under s. 161 IPC and s. 5(2), Prevention of Corruption Act.

In appeal to thiS Court, the appellant contended, ( 1) that P\V l's evidence regarding the payment of gratification should not be accepted without independent corroboration, (2) that the statutory presumption under s. 4(1),

Prevention of Corruption Act that the appellant accepted the gratification as a motive or re\vard such as is mentioned in s. 161, I.P.C., should not be drawn against the appellant, because, (a) ther_e was, in fact, no complaint \\"hatever against PW 1 in respect of the commission of the offence of abduction; and (b) the effect of the acquittal of the Sub-Inspector was tl>Jlt the money could not be held to have been paid to the appellant pursuant to any demand of bribe; and (c) that since the two accused were charged under s. 161 read vtith s. 34, on the acquittal of the SubTnspector the appellant could not be convicted under s. 161 si'!npliciter.

Disffiissing the appeal,

HELD : ( 1) The testimony of P\V 1 stood fully corroborated by other / independent and reliable testimony and hence could be safely acted upon.

The defence version that it was PW4 who paid the n1011ey was falsified by the fact that no anthracene powder; with 'vhich the notes used in the raid were smeared, was found on PW 4's hands, while it was found on the hands of the accused and PW!. [l057E; 1059B-Cl

(2) (a) The n1ere fact that no complaint of abduction or of any other offence had been made or registered against PW 1 could not take the act of the appellant-in den1anding and accepting the gratification from PW 1 in the context of the threat by the appellant-out of the mischief of s. 161, 1.P.C.

The section does not require that the public servant must, in fact. be in a

-J

~~~:~

position to do the official act, favour or service at the time of the demand or A receipt of the gratification. To constitute an offence under this section it is enough if the public servant who accepts the gratification takes it by inducing a belief or by holding out that he would render assistance to the giver, with any other public servant, and the giver gives the gratification under that belief. lt is also immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he hold~ himself out as capable of doing. The last Explanation and Illustration ( c) to the section show that the person who receives a gratification as a motive B for doing what he does not intend to do, or as a reward for doing what he has not done, comes within the purview of the words "a motive or reward for doing". When a public servant, being a police officer, ii charged under s. 161, l.P.C., and it is alleged that the illegal gratification was taken by him for doing er procuring an official act, the question whether there was any offence agairut the giver of the gratification which the accused could have investigated or not, is not material for that purpose. If he has used his official position to extract illegal gratification the requirement of the law is satisfied.

[1059F 1160El C Mahesh Prasad v. State of U.P. [1955] 1 SCR 965; Dhanesl1war Narain Saxena v. Delhi Admn. [1962] 3 SCR 259; Bhanuprasad Hariprasad Dave and anr. v. State of Gujarat [1969] 1 SCR 22 and Shiv Raj Singh v. Delht Administration [19691 I SCR 183, followed.

In the present case, on the day of the payment the Sub-Inspector was away and the appellant \vas actually in charge of the police station.

It was he who called PW 1 and asked if he had brought the money and when PW 1 replied in the affirmative but hesitated to hand over the money, represented that the D money should be handed over to him, and that he would pass it on to the Sub-Inspector, and that PW 1 would have nothing to fear.

[1059C-F]

(b) 'fhe only effect of the acquittal of the SubInspector is that it cannot be urged that the Sub-Inspector had demanded any bribe from P\V 1.

It does not in any way discount the evidence that PW 1 was called to the police station and was informed by the appellant that a charge of abd11ction was against him and that the appellant demanded and received a bribe fro1n lnm.

[I 058H-1059Bl E

(c) The burden on the accused to displace a presumption is not as onerous as that on the prosecution to prove its case, but the accused has to discharge it by adducing evidence, circumstantial or direct, which establishes with rca~ sonnble probability that the money was accepted by the accused other than as a motive or reward such as is referred to in the section. In the present case,

th~ appellant had failed to show such a balance of probability in his favour. . [1060E-Gl

(3) The language of the charge shows that in addition to the charge under F s. 161 read with s. 34, the appellant was in substance also being charged under s. 161 simpliciter.

All the material circumstances -appearing in evidence constitntine an offence under s. 161, were put to him during his exa mintion under s~ 342, Cr.P.C. The objection that he could not be convicted under s. 161 simpliciter was not raised in any of the courts below.

No prejudice has therefore, been caused to him because of this technical defect of there being no express charge under s. 161 simpliciter, and the irregularity if any, is cured under s. 537, Cr, P.C. [1061B-Dl G

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 250 of 1971.

Appeal by special leave from the jndgment and order dated the lst July, 1971 of the Gujarat High Court at Ahmedabad in Criminal Appeal No. 33 of 1970.

N. N. Keswani, for the appellant.

S. N. Anand and M. N. Shroff, for the respondent.

17-725SCI/76

The Judgment of the Court was delivered by

SARKARIA, J.

The appellant in this appeal was Accused N0. 2 in the trial court.

He was a Head Constable (Jamadar) posted at the relevant time in Police Station, Zinzuwada. His co-accused (No. 1) was a Police Sub-Inspector posted in the same station. One Bai Sati, was alleged to have been abducted by Ghanshyamsinh alias Ghanuba.

She was in the Police Station on the 10th and 1 lth of July, 1968.

Accused 1 recorded her statement and thereafter asked one Fateh Sinh (PW 7) to bring and produce his cousin Ghanshamsinh. Fatehsinh accordingly produced Ghanshamsinh before Accused 1 on July 11, 1968.

Accused 1 directed the appellant to take charge of Ghanshamsinh.

The appellant did likewise and told Ghanshamsinh that if he wanted to get rid of the charge, he should gratify the Snb- Inspector.

The appellant backed up the suggestion with a threat to handcuff Ghanshamsinh and put him in the police lock up.

The appellant further demanded a bribe of. Rs. 2,000 /-. At first Ghanshamsinh expressed his inability to pay, the amount. Ultimately at the intervention of Accusd 2, the demand was scaled down to ,.

Rs. 1,000/- and it was agreed that out of the amount, a sum of Rs. 500 /- would be paid on the following evening at the latest.

Ghanshamsinh was then allowed to go.

He then talked about this deal to his cousin. Fatehsinh.

On the following day, Ghanshamsinh went to Ahmedabad and contacted Shri R. R. Desai (PW 8), Inspector of 'the Anti-Corruption staff of Police and made a complaint which was recorded. Shri Desai then in the presence of Panchas, supplied a sum of Rs. 500/- in five cunency notes of the denomination of Rs. 100/- each to Ghanshamsinh for use in the trapping the accused persons in the act of taking the bribe. The notes were smeared with anthracene powder and Ghanshamsinh was directed to hand over the same on demand to the accused, and then signal to the raiding party.

After settling the plan, the party came to Zinzuwada on July 12, 1968. Ghanshamsinh was sent ahead with the tainted money to the Police Station. On seeing Ghanshamsinh along with Panch Mahendra going to the residence of Accused 1, the appellant called him and took him to his office room in the Police Station.

Ghanshamsinh informed the appellant that he had brought the money as agreed for payment to Accused

I. The appellant told him that Accused 1 being away, he was the acting Station House Officer and the money should be paid to 1rim, adding that he would, in turn, pass it on to Accused 1 on his return.

Ghanshamsinh then handed over those five currency notes to the appellant who accepted the same and placed them in the drawer of his table.

All the three persons then came out of the room. The appellant locked the room.

On receiving the agreed signal from Ghanshamsinh, the police party rushed in and caught hold of the appellant by the hand.

With the key found on the person of the appellant, Inspector Desai unlocked the room and recovered the currency notes from the drawer of the appellant's table.

The hands of the complainant Ghanshamsinh, Panch Mahendra and the appellant were examined in the light of an ultra-violet lamp. Such examination revealed anthracene powder on the hands of the appellant and Ghanshamsinh; but no such P?Wder was seen on Panch Mahendra. Shri

Desai prepared the Panchnama. Certain police papers on the demand A of Inspector Desai were produced by the Writer-Constable, Kansanbhai.

These are : (1) Statement, dated July 11, 1968 of Bai Sati recorded by Accused 1; (2) Statement dated July 11, 1968 of Koli Mana Jiva, recorded by Accused 1; ( 3) the writing sent by Police Sub-Inspector, Dasuda under Javak No. 2991 dated July 10, 1968 as per endorsement dated July 18, 1968 to the Police Inspector, Zinzuvada; ( 4) The Statement of Bai Sati recorded by the Police B Sub-Inspector at Dasuda on July 10, 1968. The Inspector seized these records.

After completing the investigation, the police sent both the accused under a charge-sheet for trial before the Special Judge, Surendranagar on charges under s. 161 read with s. 34 and s. 165A of the

Penal Code and under s. 5(2) read withs. 5(l)(d) of the Preven- C tion of Corruption Act.

The trial Judge acquitted both the accused of all the charges levelled against them.

On ap_peal by the State, the High Court of Gujarat, reversed the acquittal of the appellant and convicted him on two counts, namely, one for an offence under s. 161, Penal Code and the other under s. 5(2) read withs. 5(l)(d) of the Prevention of Corruption Act D and sentenced him to suffer rigorous imprisonment for two years on the latter count.

No separate sentence under s. 161, Penal Code was inflicted.

Hence this appeal by special leave.

The mainstay of the prosecution case is the testimony rendered by Ghanshamsinh (PW 1) and Panch Mahendra (PW 4) and Police E Inspector Desai.

The first two are witnesses of the demand of the , J tainted currency notes and the acceptance thereof by the appellant from PW 1.

Inspector R. R. Desai, PW 8, was the Head of the raiding party who recovered the tainted notes.

Examined under s. 342, Cr. P.C., the appellant while denying the demand of the bribe on the 11th July, 1968 from Ghanshamsinh, gave F this account of what happened on the 12th July 1968 :

" .... the complainant Ghanubha Champubha and his companion came up to me. I asked Ghanubha as to why he had come. . . . He informed me that his companion was related to the P .S.I., and that he had some work with him.

He told me that he had accompanied him to show him the police station.

I offered them seats, and gave them water.

I questioned the above person about his relationship with the Sub-Inspector. He replied to me that he was the agnate of P. S. I. Joshi, and that he had come to hand over money to him as his son was sick and that, the said money was sent by his family from Ahmedabad. I instructed him to approach his wife and give money to her. He told me that if he met her, he would hav<; to stop for the night, so that he would not be able to attend the H.L. College in the morning. He told me to take the money and give it to P .S.I.

Joshi, and that, I should arrange for his transport to Ahmedabad in some motor truck proceeding there.

He gave me Rs. 500/- in five G. C. Notes, which are now before the Court at Art. 2.

I placed them in a cloth purse, and kept it in my drawer, over the said application of Narubha Ex. 51. I offered them tea and asked them to wait outside. I also told him that I would arrange for his lift in the motor truck carrying salt to Ahmedabad. So saying, we came out of the police station; I locked my room because in it, are placed arms and ammunitions. I was leaving the Police Station and going to the hotel for placing an order for tea, when two men held me by my two hands. They brought me in the compound of the Police Station. Other 3, 4 men tmned up, and one Saheb from amongst them asked me to produce the money. I exclaimed, "What money" : I told him if the money, that was required, was the same, which the cousin of P .S.I. Joshi had handed over to me. The officer insisted that the money must be produced. I was then perplexed. He took the key from one of my hands and opened my room, and took out the money. I was seated in the verandah and was not allowed to go inside ..... I then learnt that the said brother of the P .S.I. was none else but Panch No. 1. The Officer asked from me the papers of investigation against Ghanubha. I said that I had no such papers, and that I had not made any such investigation against him. He then attached some papers from the Writer Constable Karsan Talshi.''

Thus, the appellant had admitted the acceptance of the tainted currency notes which were not his lega~ remuneration. In variance with the prosecution case, he, however, alleged that this money was handed over to him by Mahendra, PW 4, with the representation that he was a cousin of P. S. I. Joshi (who was then away) and the money was to be passed on to Mr. Joshi. The appellant, further, admitted that after the recovery of the money, when his hands were examined in the light of t.he ultra violet lamp, shining powder was found thereon. He expressed ignorance if the hands of Ghanshamsinh and Mahendra were also similarly examined. He expressed a desire to appear in the witness box and make a statement on oath. Subsequently, however, he did not do so, but examined one Naruba Dosubha (D.W. 1) in defence, who more or less supported the version of the appellant with regard to the ., receipt of Rs. 5001by the appellant from PW Mahendra.

The trial Judge instead of appraising the evidence of the witnesses produced by the prosecution in the light of the admission made by the 1 1appellant in regard to the acceptance of money, rejected the prosecution case in toto against both the accused on grounds which were manifestly ' erroneous and umeasonable. Without there being any evidence, he came to the conclusion that Ghanshamsinh was a tool in the hands of H one Parbhat Singh Jhala, Girasdar of Ahmedabad, who was inimically disposed t'.lwards all the members of Zanzuwada Police, including the appellant. He brushed aside the evidence of Mahendra with the puerile observation that he "as ai trainee Press Reporter would be beguiled into

getting this first class report of a sensational raid by acng_ as a panh witness in this raiding party, at the instance of Mr. Desai ...... and m that event, Mahendra would be too willing to accompany the raiding party and in that context would be under the intelligent thumb of police, not by means of pressure, but as a result of human inquisitive, willingness induced in him."

The trial Judge further stressed the fact that Mahendra had accom- B panied the raiding party from Ahmedabad to Zunzuwada and had travelled in the police van for over three hours and this in his opinion was sufficient to show that the witness was "not so much independent as he professed to be." He further found it unbelievable that the appellant would accept the sum of Rs. 5001as a bribe, from Ghanshamsinh in the presence of a stranger (Mahendra).

The conclusions reached by the trial Judge had no foundation in evidence. They belonged to the realm of purespeculation. Apart from mere suggestions put to the prosecution witnesses, in cross-examination, (which were emphatically denied), there was no evidence to show that Parbhat Singh Girasdar was in any way hostile or inimically disposed towards the appellant. There was no justification for the conjecture that Panch Mahendra was under the thumb of Inspector Desai and as such, was an interested witness. We have t'xamined the evidence of Mahendra and are satisfied that the High Court rightly found him a truthful and trustworthy witness who had no axe of his own to grind.

The defence version to the effect, that it was Mahendra who had actually passed on the tainted money to the appellant by holding himself out as a relation of the Sub-Inspector, was falsified by the circumstance tha:t no anthracene powder was found on Mahendra when immediately after the recovery of the tainted notes, his hands were examined in t11e light of ultra-violet lamp; while such powder was admittedly found on the hands of the appellant, and Ghanshamsinh. This circumstance was deposed to by Inspector Desai (PW 8) whose version on this point was not challenged in cross-examination. Thus, while DW 1 told a lie on this point, this uncontroverted circumstance conld not.

The presence of Mahendra (PW 4) at the time of the receipt of the tainted notes was admitted by the appellant himse!Ji. In the face of this admission, there was no justification for the surmise made by the trial Court, that the appellant, an experienced Head-Constable, could not be so stupid as to receive Rs. 5001as a bribe in the presence of an unknown person.

Thus it had been indubitably established that the appellant, a public servant accepted a gratification, that is, a sum of Rs. 5001which was not his legal remuneration, from Ghanshamsinh (PW 1). On proof of this fact, the statutory presumption under s.4( 1) of the Prevention of Corruption Act was attracted in full force and the burden had shifted on to the appellant to show that he had not accepted this money as a motive

or reward such as is mentioned ins. 161, Penal Code.

Mr. Keswani contends that the appellant had rebutted this presumption by bringing on record circumstances which militate against it. The

first and the foremost of these circumstances, according to the Counsel, is that no complaint whatever against Ghanshamsinh in respect of the commission ot a.:i offence was under investigation with the police; that no F.l.R. had been lodged by any person complaining of the abduction of Bai Sati against Ghanshamsinh or any other person. Our attention has been drawn to the statement of Bai Sati, which is said to have been recorded by Accused 1 on~ the 11th January in which it is recorded that she had not been kidnapped or abducted by any person but had gone away from ber father's house of her own accord. The second circumstance stressed by the Counsel is that Accused 1 has been acquitted of the charge of demanding a bribe directly or indirectly through tl1e appellant, from Ghanshamsinh. It is urged that the effec~ of the acquittal of Accused 1 is that the money passed on to \he appellant on the 12th cannot be held to have been paid pursuant to any demand of bribe made by Accnsed 1 or by the appellant. The third circumstance, pointed out by the Counsel is that Ghanshamsinh had a grudge against the appellant and a motive to falsely implicate him, because the appellant had previously investigated a criminal case under s. 324, Penal Code against the appellant, who being aware of it, would be least disposed to accept the amount, as a bribe, for himself or for the Sub-Inspector. It is further contended that PWs Fatehsinh and Ghanshamsinh were persons of questionable an!ecedents, and their evidence in the absence of reliable independent corroboration in regard to the demand and acceptance of the money as a bribe could no' be safely accepted.

We are unable to accept the contention thattl1e presumption under s. 4( 1) of the Prevention of Corruption Act had been rebutted.

While it is true that no; report or complaint had been made or registered in the Police Station that Ghanshamsinh had abducted Bar Sati, there was credible evidence on the record to believe that both theaccused had asked Fatehsinh, PW 7, to produce his cousin Ghanshamsinh in the Police Station in connection with the investigation of a charge of abduction of Bai Sati against him. Fatehsinh conveyed this. message to Ghanshamsinh on July 10, 1968. Consequently on July 11, 1968, Ghanshamsinh was produced by Fateh Singh hefore the Police Sub-Inspector at the latter's residence, and thereafter Accusd 2, the appellant, took him into the Police Station and made him sit in his. room. It was the appellant who then accused Ghanshamsinh of having abducted Bai Sati and warned him that in case he did not pay money to the Sub Inspector, he would be arrested and paraded in handcuffs. around the village. Evidence of PWs Ghanshamsinh and Fatehsinh with regard to the summoning of Ghanshamsinh; to the Police Station to answer a supposed charge of abduction, received assurance from the circumstance that on the 10th and 11th July 1968, Bai Sati was in the

police station.

It is no doubt correct that the High Court 1has not disturbed theacquittal of Accused 1 on the ground that Ghanshamsinh's evidence H with regard to the demand of the bribe by accused 1 on the 11th, had not been corroborated by other independent evidence. The only effect of the acquittal of Accused 1, however, is that it cannot be now urgecf that Accnsed 1 had demanded any bribe from Ghanshamsinh on

t l

the 11th. But his acquittal does not in any case discount the fact or obliterate the evidence in regard to the fact that Ghanuba. was called to the Police Station and was told by the appellant that there was a charge of abduction of Bai Sati against him. Nor does the acquittal of Accused l have the effect of exonerating the appellant of the demand of bribe Ol' the 11th and again on the 12th.

As already noticed, the testimony of Ghanshamsinh b()th with regard to the demand of the gratification by the appellant and its payment to him, on the 12th stood fnlly corroborated by the independent and reliable testimony of Panch Mahendra.

Thus, so far as the appellant is concerned the testimony of Ghanshamsinh, having been fully confirmed by other trnstworthy evidence, could safely be acted uponc

As regards the contention that the appellant was not in a position to shew any favour or disfavour to Ghanshamsinh in connection witk ; bis official duties, it may be noted, in the first place, that on the 12th July at the relevant time, the Sub-Inspector being away, the appellant Vias actua1ly incharge of the Police Station. '"['his fact is borne out lly the entry Ex. 47 in the Station Diary. On seeing Ghansham and Mahendra going towards the residence of the Sub-Inspector, the appellant called them and enquired from Ghanshamsinh if he had brought the money.

Ghanshamsinh replied in the affirmative but hesitated to hand over the money to him saying that the Sub-Inspector was not present.

Thereupon, the appellant represented that he was the P.S.I. and that the money should be handed over to him, adding that he would pass it on to the P.S.I. on his return.

Thereupon, Ghansihamsinh paid the amount to the appellant saying that he should not be harassed any more, and that the demand for the balance be .Ji mercifully dispensed with.

The appellant while accepting the money assured Ghanshamsinh that he had nothing to fear so Jong as the appellimt was concerned in that affair.

Secondly, this demand for payment and acceptance of the money by the appellant on the 12th July had to be appreciated in the context of the representation made by the appellant on the preceding day, to the effect, that if Ghanshamsinh would not pay the gratmcation, he would be arrested, handcuffed and paraded for the offence of abducting Bai Sati.

The proof of the foregoing facts was sufficient to establish the charge under s. 161, Penal Code.

TM mere fact that no case of abduction or of any other offence had been registered against Ghanshamsinh in the Police Station or that no complaint had been made against him to the Police by any person in respect of the commission of an offence, could not take the act of the appellant in demanding and accepting the gratification from Ghanshamsinh, out of the mischief of s. 161, Penal Code.

The Section does not require that the public servant must, in fact, be in a position to do the official aet, favour or service at the time of the demand or receipt of the gratification. To constitute an offence under this section, it is enough if the public servant who accepts the gratification, takes it by

inducing a belief or by holding out that he would render assistance to the giver "with any other public servant" and the giver gives the gratification under that belief. It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of doing.

This is clear from the last Explanation appended to s. 161, according to which, a person who receives a gratification as a motive for doing what he does not intend to do, as a reward for doing what he has not done comes within the purview of the words "a motive or reward for doing." The point is further clarified by Illustration ( c) under this Section.

Thus, even if it is assumed that the representation made by the appellant regarding the charge of abduction of Bai Sati against Ghanshaminh \Vas, in fact, false, this will not enable him to get out of the tentacles of s. 161, although the same act of the appellant may amount. to the offence of cheating, also (see Mahesh Prasad v. State of U.P.;(')

Dhaneshwar Narain Saxena v. Delhi Admn. (').

Indeed, when a public servant, being a police officer, is charged under s. 161 Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, the question whether there was any offence against the giver of the gratification which the accused could have investigated or not, is not material for that purpose. If he has used his official position to extract illegal gratification, the requirement of the law is satisfied. It is not necessary in such a case for the Court to consider whether or not the public servant was capable of doing or intended to do any official act of favour or disfavour (see Bhanuprasad Hariprasad Dave and anr. v. State of Gujarat('), and Shri Raj Singh v. Delhi Administra- ~(•). -

In the light of what has been said above, it is clear that the appellant has failed to rebut the presumption arising against him under s. 4 ( 1) of the Prevention of Corruption Act.

It is true that the burden which rests on an accused to displace this presumption iS not as onerous as that cast on the prosecution to prove its case.

Nevertheless, this burden on the accused is to be discharged by bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that the money was accepted by the accused, other than as a motive or reward such as is referred to in s. 161.

The appellant had hopelessly failed to show such a balance of probability in his favour. '

"",

Thus the charge under s. 161, Penal Code had been fully brought /" home to the appellant.

The charge under s. 5(1) (d) read with s. 5 (2), also had been proved against him to the hilt.

Clearly he / had obtained the money by grossly abnsing his position.

Lastly, towards the fag end, in reply, Mr. Keswani attempted to assail the conviction recorded by the High Court on a grQund which had not been raised in the courts below.

The charge against the

(I) [1955] l S.C.R. 965.

'3) [1969] 1 S.C.R. 22.

(4) [1969] l S.C.R.183.

appellant was that he had committed an offence under s. 161, read with s. 34, Penal Code.

No charge under s. 161 sinipliciter was separately drawn up against him.

This being the case, contends :Mr. Keswani, .the High Court was not, in the event of the acquittal oi Accused 1, competent to convict the appellant under s. 161 with the aid of s. 34 Penal Code.

The contention must be repelled.

Firstly, the High Court has not convicted the appellant with the aid of s. 34, Penal Code. Secondly, although in the charge, only s. 161, read with s. 34, Penal Code was mentioned, the language of the charge, could leave the appellant in no doubt that in addition to the vicarious charge under s. 161, read with s. 34, he was being charged with the commission of an .offence under s. 161, simpliciter also.

This was manifest from the words : "You Accused 2 directly accepted from Shri Ghanshamsinh Champublia Zala Rs. 500/- ... " All the material circumstances appearing in evidence constituting an offence under s. 161, Penal Code simpliciter were put to him during his examination.

This objection was not raised in any of the courts below at any st"ge. No prejudice has therefore, been caused to the appellant by this technical defect in the charge.

In any case this irregularity stood cured under s. 53 7, Criminal Procedure Code.

For the foregoing reasons, the appeal ails and is dismissed.

V.P.S.

Appeal dismissed.

CHATURDAS BHAGWANDAS PATEL

THE STATE OF GUJARAT

R. S. SARKARIA

Indian Penal Code

s. 161

Prevention of Corruption Act

ss. 4(1)

s. 537

ss. 161 and 34

s. 161

s. 161

s. 34

s. 165A

IPC

s. 5

s. 5

Prevention of Corruption Act, 1947

s. 161

IPC

s. 5(2)

Prevention of Corruption Act

s. 4(1)

Prevention of Corruption Act

s. 161

I.P.C

s. 161

s. 34

s. 161

s. 161, 1

s. 161

[1955] 1 SCR 965

[1962] 3 SCR 259

[1969] 1 SCR 22

s. 161

s. 34

s. 161

s. 161

Cr.P.C

s. 161

s. 161

s. 537

Gujarat High Court at Ahmedabad

N. N. Keswani

S. N. Anand

M. N. Shroff

SARKARIA

Bai Sati

Ghanshyamsinh alias Ghanuba

Fateh Sinh

Ghanshamsinh

Fatehsinh

Ahmedabad

R. R. Desai

Desai

Panchas

Zinzuwada

July 12, 1968

Panch Mahendra

Kansanbhai

Koli Mana Jiva

Dasuda

July 10, 1968

July 18, 1968

Zinzuvada

Dasuda

Special Judge, Surendranagar

s. 161

s. 34

s. 165A

Penal Code

s. 5(2)

High Court of Gujarat

s. 161

Penal Code

s. 5(2)

Prevention of Corruption Act

s. 161

Penal Code

Ghanshamsinh

Panch Mahendra

Desai

s. 342

11th July, 1968

Ghanubha Champubha

Ghanubha

.S.I.

P. S. I. Joshi

P .S.I.

Joshi

Art. 2

Saheb

P .S.I. Joshi

Karsan Talshi

Mahendra

P. S. I. Joshi

Mahendra

Naruba Dosubha

Parbhat Singh Jhala

Zanzuwada Police

Zunzuwada

Parbhat Singh Girasdar

Desai and

s.4( 1)

Prevention of Corruption Act

Penal Code

Keswani

s. 324

Penal Code

Fatehsinh

s. 4( 1)

Prevention of Corruption Act

Bar Sati

July 11, 1968

Fateh Singh

10th and 11th July 1968

Ghanuba

Vias

Ghansham

P.S.I.

Ghansihamsinh

s. 161

Penal Code

s. 161

Penal Code

s. 161

Ghanshaminh \Vas

s. 161

s. 161

Penal Code

s. 4

Prevention of Corruption Act

s. 161

s. 161

Penal Code

s. 5(1)

s. 5

[1969] 1 S.C.R. 22

s. 161

s. 34

Penal Code

s. 161

Keswani

s. 161

s. 34

Penal Code

s. 34

Penal Code

s. 161

s. 34

Penal Code

s. 161

s. 34

s. 161

Ghanshamsinh Champublia Zala

s. 161

Penal Code

s. 53

Criminal Procedure Code